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STANDARD FORM OF LOFT LEASE
The Real Estate Board of New York, Inc.
7/04
Agreement of Lease, made as of this 8th day of August in the
year 2014, betweeen 80 ORVILLE DRIVE ASSOCIATES LLC, a Delaware
limited liability company, having an address c/o Rechler Equity
Partners, 85 South Service Road, Plainview, New York, party of
the first part, hereinafter reerred to as OWNER,
and SCIENTIFIC INDUSTRIES, INC., a Delaware corporation, having
its principal business address at 70 Orville Drive, Bohemia,
New York 11716, party of th second part, hereinafter referred
to as Tenant,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby
hires from Owner that certain 18,950 square foot space
(designated as Suite 102), substantially as shown on the Rental
Plan annexed hereto as Exhibit "A", located in the building
80 Orville Drive, Bohemia, New York
(or until such term shall sooner cease and expire as hereinafter
provided) to commence on * and to end on * and both dates inclusive
at the annual rental rate of "
* As set forth in the rider annexed hereto
which Tenant agrees to pay in lawful money of the United States
which shall be legal tender in payment of all debts and dues,
public and private. at the time of payment, in equal monthly
installments in advance on the first day of each month during said
term, at the office of Owner or such other place as Owner may
designate, without any setoff or deduction whatsoever, except
that Tenant shall pay the first full 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 representative,
successors and assigns, hereby covenant as follows:
Rent: l. Tenant shall pay the rent as above and
as hereinafter provided.
Occupancy: 2. Tenant shall use and occupy the demised
premises for light assembly and warehousing of laboratory
products and offices ancillary threto.
provided such use is in accordance with the certificate of
occupancy for the building, if any, and for no other purpose.
Alterations: 3. Subject to the terms of Par. 45 of the Rider,
Tenant shall make no changes in or to the demised premises
of any nature without Owner's prior written consent of Owner, and to
the provisions of this article, Tenant, at Tenant's expense,
may make alterations, installations.addirions or improvements
which are nonstructural and which do not affect utility services
or plumbing and electrical lines, in or to the interior of the
demised premises, using contractors or mechanics first approved in
each instance by Owner (such approval not to be unreasonably
withheld, conditioned or delayed). Tenant sha1l at its expense,
before making any alterations, additions, installations or
improvements obtain all permits, approvals and certificates
required by any governmental or quasi-governmental bodies and
(upon comp1etion) certificates of final approval thereof, if
required, and shall deliver promptly duplicates of all such
permits, approvals and certificates to Owner. Tenant agrees to
carry, and will cause Tenant's contractors and sub-contractors
to carry, such worker's compensation. commercial general hability,
personal and property damage insurance as Owner may reasonably
require. If any mechanic's lien is filed against tbe 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 Tenani within thirty (30) days thereafter,
at Tenant's expense, by payment or filing a bond as permitted
by law. All fixtures and all paneling, partitions, railings and
like installations,installed in the demised premises at any time,
either by Tenant or by Owner on Tenant's behalf, shall, upon
installation, become the property of Owner and shall remain
upon and be surrendered with the demised premises unless Owner,
by notice to Tenant no later than twenty (20) days prior to
the date fixed as the termination of this lease, elects to
relinquish Owner's right thereto and to have them removed by
Tenant, in which event the same shall be removed from the
demised premises by Tenant prior to the expiration of the lease,
at Tenant's expense. Nothing in this article shall be construed
to give Owner title to, or to prevent Tenant's removal of
trade fixtures, moveable office furniture and equipment, but
upon removal of same from the demised premises, or upon removal
of other installations as may be required by Owner. Tenant
shall promptly, and at its expense, repair and restore the
demised premises to the condition existing prior to any such
installations (reasonable wear and tear and casualty excepted),
and repair any damage to the demised premises of 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 demised
premises after Tenant's removal shall be deemed abandoned and
may, at the election of Owner, either be reatined as Owner's
property of removed from the demised premises by Owner, at
Tenant's expense.
Repairs: 4. Owner shall maintain and repair the exterior
of and the public portions of the building and make all
structural repairs (as defined in Par. 48 of the Rider). Tenant
shall, throughout the term of this lease, take good care of the
demised premises, including the bathrooms and lavatory facilities
contained therein, if any, the windows, and window frames, and the
fixtures and appurtenances therein (reasonable wear and tear excepted)
and at Tenant's sole cost and expense promptly make all repairs
thereto and to the building, whether structureal or non-structural
in nature, cause by, or resulting from, the carelessnesss, omission,
neglect or improper conduct of Tenant, Tenant's servants, employees,
invitees, or licensees, and whether or not arising from
Tenant's conduct or omission, when required by other provisions of
this lease, including article 6. Tenant shall also repair all
damage to the building and the demised premises caused by the moving
of Tenant's fixtures, furniture, or equipment. All the aforesaid
repairs shall be of quality or class equal to the original work or
construction. If Tenant fails, after ten (10) days notice, to proceed
with due diligence to make repairs required to be made by
Tenant, the same may be made by Owner at the expense of Tenant,
and the expenses thereof incurred by Owner sha1l be collectible,
as additional rent, after rendition of a bill or statement
therefore. Owner agrees that in making such repairs, Owner shall
use commercially reasonable efforts to minimize interference with
Tenant's use and occupancy of the demised premises and its access
thereto. Owner further agrees to perform all such repairs in a
good and workmanlike manner with due diligence. If the demised
premises be or become infested with vermin, Tenant shall at its
expense, cause the same to be exterminated. Tenant shall give
Owner prompt notice of any defective condition in any plumbing,
heating system or elecmcal lines located in the demised premises
and following such notice, Owner shall remedy the condition
with due diligence, but at the expense of Tenant, if repairs
are necessitated by damage or injury attributable to Tenant,
Tenant's servants, agents, employees, invitees or licensees as
aforesaid. Except as specifically provided in Article 9 or
elsewhere in this lease, there shall be no allowance to Tenant
for a diminution of rental value and no liability on the part of
Owner by reason of inconvenience, annoyance or injury to business
arising from Owner. Tenant or others making or failing
to make any repairs, alterations, addinons or improvements
in or to any portion of the building or the demised premises,
or in and to the fixtures, appurtenances or equipment thereof.
It is specifically agreed that Tenant shall not be entitled to any
setoff or reduction of rent by reason of any failure of Owner to
comply with the covenants of this or any other article of this
lease. Tenant agrees that Tenant's sole remedy at law in such
instance will be by way of an action for damages for breach of
contract. The provisions of this Article 4 with respect to the
making of repairs shall not apply in the case of fire or other
casualty with regard to which Article 9 hereof shall apply.
Window S. Tenant will not clean nor require. permit, suffer
Cleaning: or allow any window in the demised premises to
be cleaned from the outside in violatioa of Section 202 of the
New York State Labor Law or any other applicable law, or of the
Rules of the Board of Standards and Appeals, or of any other Board
or body having or asserting jurisdiction.
Requirements
of Law
Fire Insurance,
Flood Loads:
6. Prior to the commencement of the lease term, if Tenant is then in
possession, and at all times thereafter, Tenant shall at Tenant's sole cost
and expense, promptly comply with all present and future laws, orders
and regulations of all state, federal. municipal and local governments,
departments, comissions and boards and any direction of any public officer
pursuant to law, and all orders, and regulations of the New Yor kBoard 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, arising out of Tenant's use or
manner of use thereof, or, with respect to the building, if arising out of
Tenant's use or manner of use of the demised premises of the building
(including the use permitted under the lease). Except as providedin
Article 30 hereof, or in Paragraphs 45 or 48 of the Rider, 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, regulatious or requirements with respect thereto. In the event
that there are alterations required to be performed to the demised premises
to comply with applicable law that are not Tenant's responsibility hereunder,
Owner shall perform such alternations. Tenant shall not do or permit
any act or thing to be done in or to the demised premises which is contrary
to law, or which will invalidate or be in conflict with public liability,
fire or other policies of insurance at any time carried by or for the
benefit of Owner,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 and other authority having jurisdiction,
and then only in such manner and such quantity so as not to increase
the rate for fire insurance applicable to the building, nor use the demised
premises in a manner which will increase the insurnnce rate for the building
or any property located therein over that in effect prior to the
commencement of Tenant's occupancy. If by reason of failure to comply with
the foregoing the fire insurance rate shall, at the beginning of this lease
or at any time thereafter, be higher than it otherwise would be, then
Tenant shall reimburse Owner; as addinonal rent for that ponion of all
fire insurance premiums thereafter paid by Owner which shall have been
changed because of such failure by Tenant. In any action or proceeding
wherein Owner and Tenant are parties, a schedule or "make-up"or rate
for the building or demised premises issued by a body making 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 parties. 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 the
demised premises are a part, and to all renewals, modifications,
consolidations, replacements and extensions of any such underlying leases
and mortgages. This clause shall be self-operative and no further
instrument or subordination shall be required by any ground or underlying
lessor or by any mortgagee, affecting any lease or the real propeny of
which the demised premises are a part. In confirmation of such
subordination, Tenant shall from time to time execute promptly any
certificate that Owner may reasonably request.
Tenant's 8. Owner or its agents shall not be liable
Liability Insurance for any damage to property of Tenant or of
Property others entrusted to employees of the building,
Loss, nor for the loss of, or damage to, any property
Damage, of Tenant by theft or otherwise, nor for any
Indemnity: injury or damage to persons or property resulting
from any cause of whatsoever nature, unless
caused by, or due to, the negligence willful
coduct of Owner,its agents, servants or
employees; Owner or its ageors shall not be
liable for any damage caused by other tenants
or persons in, upon or about said building or caused by operations, in
connection of any private, public or quasi public work. If at any time
any windows of the demised premises are temporarily closed, darkened or
bricked up (or permanently closed, darkened or bricked up, if required
by law), for any reason whatsoever including, but not limited to, Owner's
own acts, Owner shall not be liable for any damage Tenant may sustain
thereby, and Tenant shall not be entitled to any compensation therefore
nor abatement or diminution of rent, nor shall the same release Tenant
from its obligations hereunder nor constitute an eviction.
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 and other items of additional rent, until such
repair shall be substantially completed as defined in Paragraph 42(b)
of the Rider, shall be apportioned from the day following the casualty
according to the part of the demised premises which is usable. If a
substantial portion of the demised premises is damaged, and Tenant
cannot operate any part of its business previously operated in the
balance of the demised premises in an economically feasible manner,
fixed rent and additional rent will abate for the entire demised
premises. (c) If the demised premises are totally damaged
or rendered wholly unusable by fire or other casualty, then the
rent and other items of additional rent as hereinafter expressly
provided shall be proportionately paid up to the time of the casualty
and thenceforth shall cease until the date when the demised
premises shall have been repaired and restored by Owner (or sooner
reoccupied in part by Tenant then rent shall be apportioned as
provided in subsection (b) above), subject to Owenr'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 sixty (60) days after
such fire or casulaty, or thirty (30) days after adjustment of the
insurance claim for such fire or casualty, whichever is
sooner, specifying a date for the expiration of the lease, which
date shall not be more than thirty (30) days after giving of such
notice, and upon the date specified in such notice the term of this
lease shall expire as fully and completely as if such date were the
date set forth above for the termination oft his lease, and Tenant
shall forthwith quit, surrender and vacate the demised premises
without prejudice however to Owner's rights and remedies against
Tenant under the lease provisions in effect prior to such
termination, and any rent owign 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 damaged portion of demised premises as promptly
as reasonably possible, all of Tenant's salvageable inventory
and movable equipment, furniture, and other property.
Tenant's liability fur rent shall resume five (5) days after
written notice from Owner that the demised premises are
substantially complete (as defined in the Rider) 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. Norwiths1anding anything contained
to the contrary in subdivisions (a) through (e) hereof,
including Owner's obligation to restore under subparagraph
(b) and (c) above, 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, Owne rand
Tenant eac hhereby releases and waives all right of recovery
with respect tO subbparagraphs (b), (d) and (e) above, against
the other or any one claiming through or under each of them by
way of subrogation or otherwise. The release and waiver herein
referred to shall be deemed to include any loss or damage to
the demised premises and/or tO any personal property,
equipment, trade fixtures, goods and merchandise located
therin. The foregoing release and waiver shall be in force
only if both releasors' insurance policies contain a clause
providing that such a release or waiver shall not unvalidate
the insurnnce. If, and to the extent that such waiver can
be obtained only by the payment of additiooal premiums, then the
party benefiting from the waiver shall pay such premium
within ten (l0) 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,
or appurtenances removable by Tenant, and agrees that Owner
will not be obligated to repair any damage thereto or replace
the same.(f)Tenant hereby waives the provisions of Section 227
of the Real Property Law and agrees that the provisions of this
article shall govern and control in lieu thereof.
Eminent
demised
Domain:
10. If the whole or any material part of the by premises
shall be acquired or condemned by Eminent Domain for any public
or quasi public use or purpose, thenand in that event, the term of
this lease shall cease and terminate from the date of title vesting
in such procccding and Tenant shall have no claim for the value of a
ny unexpired term of said lease. Tenant shall have the right to make
an independent claim to the condemning authority for the value of
Tenant's moving expenses and personal property, trade fixtures and
equipment. provided Tenant is entitled pursuant to the terms
of the lease to remove such property, trade fixtures and equipment
at the end of the term, and provided further such claim does
not reduce Owner's award.
Assignment,
Mortgage,
Etc.:
11. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns,
expressly covenants that it shall not assign, mortgage or
encumber this 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. Transfer of
the majority of the stock of a corporate Tenant or the majority
interest in any partnership or other legal entity which is Tenant
shall be deemed an assignment. If this lease be assigned, or if the
demised premises or any part thereof be underlet or occupied fby
anybody other than Tenant, Owner may, after default by Tenant, collect
rent from the assignee, undertenant or occupant, and apply the net
amounts collected to the rent herein reserved, but no such
assignment, underletting, occupancy, or collection shall be
deemed a waiver of this covenant, or the acceptance of the
assignee, undertenant or occupant as tenant, or a release of
Tenant from the furhter performance of Tenant of covenants on the
part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any way be construed to
relieve Tenant from obtaining the express consent in writing
of Owner to any further assignment or underletting. See
Par. 54 of Rider.
Electric Current:
12. Rates and conditions in respect to submetering or rent
inclusion, as the case may be, to be added in RIDER attached hereto,
Tenant covenants and agrees that at all times its use of electric
current shall not exceed the capacity of existing feeders to the
building or the risers or wiring installation, and Tenant may not
use any electrical equipment which, in Owner's opinion, reasonably
exercised, will overload such installations or interfere with the
use thereof by other tenants of the building. The change at any
time of the character of electric service shall in no way 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 upon reasonable advance
notice to Tenant (except in the event of an emergency) to examine
the same and to make such repairs, replacements and improvements
as owner may deem necessary and reasonably desirable to any
portion of the building, or which Owner may elect to perform in
the demised premises after Tenant's failure to make repairs,
or perform any work which Tenant is obligated to perform under
this lease, or for the purpose of complying with laws, regulations
and other directions of governmental authorities. Tenant shall
permit Owner to use, maintain and replace pipes, ducts, and conduits
in and through the demised premises, and to erect new pipes, ducts,
and conduits therein provided, wherever possible, that they are within
walls or otherwise concealed. Owner may during the progress of any
work in the demised premises, take all necessary materials and
equipment into said premises without the same constituting an
eviction, nor shall 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. Notwithstanding
the foregoing, Owner will be liable for any damage caused by
the negligence or willful misconduct of Owner or Owner's agents
or employees, throughout the term hereof Owner shall have the
right to enter the demised premises at reasonable hours upon
reasonable advance notice to Tenant, for the purpose of
showing the same to prospective purchasers or mortgagees of the
building, and during the last twelve (12) months of the term for
the purpose of showing the same to prospective tenants, and
may, during said twelve (12) months period, place upon the
demised premises the usual notices "To Let" and "For Sale"
which notices Tenant shall permit to remain thereon without
molestation. If Tenant is not present to open and permit
an entry into the demised premises, Owner or Owner's agents
may enter the same whenever such entry may be necessary
or permissible by master key or forcibly, and provided
reasonable care is exercised to safeguard Tenant's property,
such entry shall not render Owner or its agents liable
therefore, nor in any event shall the obligations of Tenant
hereunder be affected. If during the last month of the
term Tenant shall have removed all or substantially all of
Tenant's property therefrom, Owner may immediately enter,
alter, renovate or redecorate the demised premises without
limitation or abatement of rent, or incurring liability to
Tenant for any compensation, adn such act shall have no
effect on this lease or Tenant's obligation hereunder.
When exercising Owenr's rights hereunder, Owner agrees that
Owner shall use commercially reasonable efforts to minimize
interference with Tenant's use and occupancy of the demised
premises and its access thereto, and Owner agrees to perform
all such work with due diligence.
Vault,
Vault Space,
Area:
14. No vaults, valut 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, 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 to be diminished or required by
any federal, state or municipal authority or public utility,
Owner shall not be subject to any liability, nor shall
Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or
requisition be deemed constructive or actual eviction.
Any tax, fee or charge of municipal authorities for such
vault or area shall be paid by Tenant, if used by Tenant,
whether or not specifically leased hereunder.
Occupancy:
15. Tenant will not at any time use or occupy the demised
premises in violation of tbe certificate of occupancy issued
for the building of which the demised premises are a part.
Tenant bas inspected the demised premises and accepts them as
is, subject to the rider annexed hereto with respect to Owner's
work, if any. In any event, Owner makes no representation as
to the condition of the demised premises and Tenant agrees to
accept the same subject to violations, whether or not of record.
lf any governmental license or pemiit shall be required for
the proper and lawful conduct of Tenant's business, Tenant
shall be responsible for, and shall procure and maintain, such
license or permit. Owner represents and warrants that, to the
best of Owner's knowledge, the demised premises are free from
Asbestos Containing Materials. Owner agrees to defend,
indemnify and hold harmless Tenant from and against any claims,
demands, penalties, fines, liabilities, settlements, damages,
costs or expenses, arising out of a breach of the foregoing
representation and warranty by Owner.
Bankruptcy:
16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by
sending of a written notice to Tenant within a reasonable
time after the happening of any one or more of the following
events: (1 )the commencement of a case in bankruptcy or under
the laws of any state naming Tenant(or a guarantor of any of
Tenant'sobligations under this lease) as the debtor; which, in the
case of an involuntary bankruptcy, is not dismissed within sixty
(60) days of the commencement thereof or (2) the making by Tenant
(or a guarantor of any of Tenant's obligations under this lease)
of an assignment or any other arrangement for the benefit of
creditors under any state stature. 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
demised 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 provisioas of this lease to the contrary,
to the extent permitted by law, be entitled to recover from
Tenant, as and for liquidated damages, an amount equal to the
difference between the rental reserved hereunder for the unexpired
portion of the term demised and the fair and reasonable rental
value of the demised premises for the same period. In the
computation of such damages the difference between any installment
of rent becoming due hereunder after the date of termination and
the fair and reasonable rental value of the demised premises
for the period for whicb such installment was payable shall be
discounted to the date of ternination at the rate of four percent
(4%) per annum. If the demised premises or any part thereof be
relet by Owner for the unexpired term of said lease, or any part
thereof before presentation of proof of such liquidated damages
to any court, commission or tribunal, the amouct 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 demised
premises so re-let during the term of tbe re-letting. Nothing herein
contained shall limit or preJUdice the right of the Owner to
prove for and obtain as liquidated damages by reason of such
termination an amount equal to the maximum allowed by any
statute or rule of law in effect at the time wben, 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 becomes
vacant or deserted, or if this lease be rejected under SS365
of Title 11 of the U.S. Code (Bankruptcy Code); or if any
execution or attachment shall be issued against Tenant ar any
of Tenant's property whereupon the demised premises shall
be taken or occupied by someone Other than Tenant; or if
Tenant shall be in default after the expiration of all applicable
notice and cure periods with respect to any other lease between
Owner and Tenant; or if Tenant shall have failed, after five
(5) days written notice to redeposit with owner any portion
of the security deposited hereunder which Owner has applied to
the payment of any rent and additional rent due and payable
hereunder; or if Tenant fails to move into or take possessionof the
demised premises withm thirty (30) days after the commencement of
the term of this lease, of which fact Owner shall be the sole
judge; then in any one or more of such events, upon
Owner serving a written fifteen (15) days notice upon Tenant
specifying the nature of said default, and upon the expiration of
said fifteen (15) days, if Tenant shall have tailed to comply
with or remedy such default, or if the said default or omission
complained of shall be of a nature that the same cannot be
completely cured or remedied within said fifteen (15) day period,
and if Tenant shall not have diligently commenced during such
default within such fifteen (15) day period, and shall not
thereafter with reasonable diligence and in good faith, proceed
to remedy or cure such default, then Owner may serve a written
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 thenq uit and
surrender the demised premises to Owner, but Tenant shall
remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been
given, and the term shall expire as aforesaid; or if Tenant
shall be in default in the payment of the rent reserved herein
or any item of additional rent herein mentioned, or any part
of either, or in making any other payment herein rqeuired and
such payment default has not been cured within five (5) days
after notice hereof; 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 the demises premises, and remove
their effects and hold the demised premises as if this
lease had not been made, and Tenant hereby waives the
service of notice of intention to re-enter or to institute
legal proceedings to that end. If Tenant shall make default
hereunder prior to the date fixed as the commencement of any
renewal or extension of this lease, Owner may cancel and
terminate such renewal or extension agreement by written
notice.
Remedies of
Owner and
Waiver of
Redemption:
18. In case of any such default, re-entry, expiration and/or
disposes by summary proceedings or otherwise, (a) the rent, and
additional rent, shall become due thereupon and be paid up to the
time of such re-entry, disposess and/or expiration, (b) Owner
may re-let the demised premises or any part of parts thereof,
either in the name of Owner or otherwise, for a term or terms,
which may at Owner's option be less than or exceed the period
which would otherwise have constituted the balance of the term
of this lease and may grant concessions or free rent or charge
a higher rental than that in this lease. (c) Tenant or the
legal representatives of Tenant shall also pay to Owner as
liquidated damages for the failure of Tenant to observe and
perform said Tenant's covenants herein contained, any
deficiency between the rent hereby reserved and or convenanted
to be paid and the net amount if any, of the rents collected
on account of the subsequent lease or leases of the demised
premises for each month of the period which would otherwise
have constituted the balance of the term of this lease. The
failure of Owner to re-let the demised premises or any part
or parts thereof shall not release or affect Tenant's liability
for damages. In computing such liquidated damages there shall
be added to the said deficiency such expenses as Owner may
incur in connection with re-letting such as reasonable
attorney's 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 apid in
monthly installments by Tenant on the rent day specified in
this lease, and any suit brought to collect the amount of
the deficiency for any month shall not prejudice in any way
the rights of Owner to collect the deficiency for any
subsequent month by a similar proceeding. Owner, in putting
the demised premises in good order or preparing the same for
re-rental may, at Owner's option, make such alterations,
repairs, replacements, and/or decorations in the demised
premises as Owner, in Owner's sole judgement, considers
advisable and necessary for the purpose of re-letting the
demised premises, and the making of such alterations, repairs,
replacements, and/or decorations shall not operate or be
construed to release Tenant from liability hereunder as
aforesaid. Owner shall in no event be liable in any way
whatsoever for failure to re-let the demises premises, or
in the event that the demised premises are re-let for failure
to collect the rent thereof under such re-letting, and in
no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over teh 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 teh 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 not preclude Owner from
any other remedy, in law or in equity. Tenant hereby
expressly waives any and all rights of redemption granted
by or under any present or future laws.
Fees and
Expenses:
19. If Tenanl 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, after notice if
requried, and upon expiration of the applicable grace period,
if any, (except in an emergency), then, unless otherwise provided
elsewhere in this lease, Owner may immediately, or at any time
thereafter, and without notice, perform the obligation of Tenant
thereunder. If Owner, in connection with the foregoing, or in
connection with any default by Tenant in the covenant to pay
rent hereunder, makes any expenditures or incurs any obligations
for the payment of money; including but not limited to
reasonable attorneys' fees, in instituting, prosecuting or
defending any action or proceeding, and prevails in any such
action or proceeding, then Tenant will reimburse Owner for such
sums so paid or obligations incurred with interest and costs.
The foregoing expenses incurred by reason of Tenant's default
shall be deemed to be additional rent hereunder and shall be
paid by Tenant to Owenr within ten (10) days of rendition of
any bill or statement to Tenant therefore. If Tenant's lease
term shall have expired at the time of making 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 therefore, to change the arrangement and or location
of public entrances, passageways, doors, doorways, corridors,
elevators, stairs, toilets or othe rpublic parts of the
building, and to change the name, number or designation by
which the building may be known upon reasonable written notice
to Tenant, provided any such change does not materially
adversely affect Tenant's access to, or use and enjoyment of,
the demised premises or in any way diminish Tenant's usable
square footage. Owner shall use all reasonable efforts to
perform all work or other business in the demised premises
in a manner designed to minimize interference with Tenant's
normal business operations. There shall be no allowance to
Tenant for diminution of rental value and no liability
on the part of Owner by reason of inconvenience, annoyance
or injury to business arising from Owner or other Tenant
making any repairs in the building or any such alterations,
additions and improvements. Furthermore, Tenant shall not
have any claim against Owner by reason of imposition of
any controls of the manner of access to the building by Tenant's
social or business visitors, as Owner may deem necessary,
for the security of the building and its occupants.
No Repre-
sentations
by Owner:
21. Neither Owner nor Owner's agents have made any representations
or promises with respect to the physical condition of the building,
the land upon which is erected, the demised premises, the rents,
leases, expenses of operation, or any other matter or thing
affecting or related to the demised premises or the building,
except as herein expressly set forth, and no rights, easements
or licenses are acquired by Tenant by implication or otherwise
except as expressly set forth in the provisions of this lease.
Tenant bas inspected or has waived the right to inspect the building
and the demised premises, and is thoroughly acquainted with their
condition and agrees to take the same "as-is" on the date possession
is tendered subject to Owner's completion in a good and workmanlike
manner of Landlord's WOrk (as defined in the Rider), and acknowledges
that the taking of possession of the demised premises by Tenant
shall be conclusive evidence that1 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 abandomnent of it in whole or in part, unless such
executory agreement is in writing and signed by the party against
whom eenforcement of the change, modification, discharge
orabandonment 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 1he demised
premises, "broom-clean" in good order and condition, ordinary wear
and damages which Tenant is not required to repair as provided
elsewherein this lease excepted, and Tenant shall remove all its
property from the demised premises. Tenant'sobligation to observe
or perform this covenant shall survive the expiration or other
termination of this lease. If the last day of the term of this lease,
or any renewal thereof falls on Sunday, this lease shall expire at
noon on the preceding Saturday, unless it be a legal holiday, in which
case it shall expire at noon on the preceding business day.
Quiet
Enjoyment:
23. Owner covenants and agrees with Tenant that upon Tenant paying
the rent and additional rent and observing and performing all the terms,
covenants and conditions.on Tenant's part to be observed and performed,
Tenant may peaceably and quietly eojoy the premises hereby demised'
subject, nevertheless, to the terms and conditions of this lease including,
but not limited to, Article 34 hereof. and to the ground leases, underlying
leases and mortgages bereinbefore mentioned.
Failure to
Give
Possession:
24. If Owner is unable to give possession of the demised premises
on the date of the commencement of the term hereof because of the tenant,
undertenant or occupants, of if the demised premises are located in a
building being construed, because such building has not been sufficiently
completed to make the premises ready for occupancy or because of the
fact that a certificate of occupancy has not been procured, or if Owner
has not completed any work required to be performed by Owner, or for any
other reason. Owner shall not be subject to any liability for failure to
give possession on said date and the validity of the lease shall not
be impaired under such circumstances, nor shall the same be construed
in any way to extend the term of this lease, but the rent payable
hereunder shall be abated (provided Tenant is not responsible for Owner's
inability to obtain possession or complete any work required) until after
Owner shall have given Tenant notice that Owner is able to deliver
possession in the condition required by this lease. If permission is
given to Tenant to enter into possession of the demised premises, or
to occupy premises other than the demised premises, prior to the date
specified as the commencement of the term of this lease, Tenant
covenants and agrees that such possession and/or occupancy shall be
deemed to be under all the terms, covenants, conditions and provisions
of this lease, except the obligation to pay the fixed annual rent set
forth in page one of this lease. The provisions of this article are
intended to constitute "an express provision to the contrary" within
the meaning of Section 223 of the New York Real Property Law.
No Waiver:
25. The failure of Owner or Tenant to seek redress for
violation of. or to insist upon the strict performance of, any
covenant or condition of this lease, or of any of the Rules or
Regulations, set forth or hereafter adopted by Owner, shall not
prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation.
The receipt by Owner of rent with knowledge of the breach of any
covenantof this lease shall not be deemed a waiver of such breach, and
no provision of this lease shall be deemed to have been waived by
Owner unless such waiver be in writing signed by Owner. No payment
by Tenant, or receipt by Owner, of a lesser amount than the monthly
rent herein stipulated shall be deemed to be other than on account
of the earliest stipulated rent, nor shall any endorsement or statement
of any check or any letter accompanying any check or payment
as rent be deemed an accord and satisfaction, and Owner may accept such
check or payment without prejudice to Owner's right to recover the
balance of such rent or pursue any other remedy in this lease provided
All checks tendered to Owner as and for the rent of the demised premises
shall be deemed payments fur the account of Tenant. Acceptance by Owner
of rent from anyone other than Tenant shall not be deemed to operate as
an attornment to Owner by the payor of such rent, or as a consent by
Owner to an assignment or subletting by Tenant of the demised
premises to such payor, or as a modification of the provisions of
this lease. No act or thing done by Owner or Owner's agents during
the term hereby demised shall be deemed an acceptance of a surrender
of said premises, and no agreement to accept such surrender shall be
valid unless in writing signed by Owner. No Employee of Owner or
Owner's agent shall have any power to accept the keys of said premises
prior to the termination of the lease, and the delivery of keys to any
such agent or employee shall not operate as a termination of the
lease, 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
demised premises.
Waiver of
Trial by Jury:
26. It is mutually agreedby and between Owner and Tenant that the
respective parties hereto shall, and they hereby do,waive trial by
jury in any action, proceeding or counterclaim brought by either
of the parties hereto against the other (except for personal injury or
property damage) on any matters whatsoever arising out of or in any
way connected with this lease, the relationship of Owner and Tenant,
Tenant's use of or occupancy of demised premises, and any emergency
statutory or any other statutory remedy. It is further mutually
agreed that in the event Owner commences any proceedings or action for
possession, including a summary proceeding for possession of the
demised premises, Tenant will not interpose any counterclaim, of
whatever nature or description, in any such proceeding, including
a counterclaim under Article 4, except for statutory mandatory
counterclaims.
Inability to
27. This lease and the obligation of Tenant to pay rent hereunder
and perform all of the other covenants and agreements hereunder
on part of Tenant to be performed shall in no way be affected,
impaired or excused because Owneris unableto fulfill any of its
obligations under this lease,or to supply, or is delayedin supplying,
any service expressly or impliedly to be supplied, or is unable to
make. or is delayedinmaking, any repairs,additions, alterations or
decorations,or is unable to supply, or is delayed in supplying,
any equipment, fixtures or other materials, if Owner is prevented or
delayed from doing so by reason of strike or labor troubles,or any
cause whatsoever beyond Owner's sole control including, bur not
limited to, government preemption or restrictions, or by reason of any
rule, orderor regulationof any department or subdivision thereof of any
government agency, or by reason of the conditions which have been or
are affected, either directlyor indirectly, by war or other emergency.
Bills and
any
Notices:
28. Except as otherwisein this lease provided, any notice, statement,
demand or other commumcation required or permittedto be given, rendered
or made by either party to the other, pursuant to this lease or
pursuant to any applicable law or requirement of public authority,
shall be in writing (whether or not so stated elsewhere in this lease)
and shall be deemed to have been properly given, rendered or made, if
sent by registered or certified mail (expressmail, if available),return
receipt requested, or by courier guaranteeing overnight delivery and
furnishing a receipt in evidence thereof, addressed to the other
party at the address hereinaboveset forth (except that after the date
specified as the commencement of the term of this lease, Tenant's
address, unless Tenant shall give notice to the contrary, shall be
the building), and shall be deemed to have been given, rendered
or made 9a) o the date delivered, if delivered to Tenant personally,
(b) on the date delivered, if delivered by overnight courier or
(c) on the date which is two (2) days after being mailed.
Either party may, by notice as aforesaid, designate a different
address or addresses for notices statements, demand or other
communications intended for it. Notices given by Owner's managing
agent shall be deemed a valid notice if addressed and set in
accordance with the provisions of this Article. At Owner's option,
notices and bills to Tenant may be sent by hand delivery.
Water Charges:
29. If Tenant requires, uses or consumes water for any purpose in
addition to ordinary lavatory purposes (of which fact Owner shall be
the sole judge) Owner may install a wate rmeter and thereby measure
Teaant's water consumption for all purposes. Tenant shall pay Owner
for the cost of the meter and the cost of tae installation. Throughout
the duration of Tenant's occupancyT, enant shall keep said meter and
installation equipmentin good working order and repair at Tenant's own
cost and expense. In the event Tenant fails to maintain the meter and
installation equipment in good worrking order and repair (of which fact
Owner shall be the solejudge) Owner may
cause such meterand equipment.to be replaced or repaired, and collect the
cost thereoffrom Tenant as additional rent Tenant agrees to pay for
water consumed,as shownon said meteras and when bills are rendered,
and in the eventTenant defaults in the making of such payment, Owner may
pay such charges and collect the same from Tenant as additional rent.
Tenant covenants and agrees to pay, as additional rent, the sewer rent,
charge or any other taX, rent or levy which now or hereafter is assessed,
imposed or a lien upon the demised premises,or the realty of which
they are a part, pursuant to any law, order or regulation made or
issued in connection with the use, consumption, maintenance or supply
of water, the water system or sewage or sewage connection or system.
If the building, the demised premises, or any part thereof,is supplied
with water through a meter through which water is also supplied to other
premises, Tenanr shall pay to Owner, as additional rent,
r"""'~ on the first day of each month. * % $ XXXXXXX) of
the total meter charges as Tenant's portion. Independentlyof, and
in addition to, any of the remedies reserved to Owner herein above
or elsewhere in this lease, Owner may sue forand collect any monies
to be paid by Tenant, or paid by Owner, for any of the reasons or
purposes herein aboveset forth.
Sprinklers:
30. Anything elsewhere in this lease to the contrary notwithstanding,
if the New York Board of Fire Underwriter; or the New York Fire
Insurance Exchange or any bureau, department or official of the federal,
state or city government recommend or require, as a result of Tenant's
specific use of the demised premises, the installation of a sprinkler
system, or that any changes, modifications, alterations, or additional
sprinkler heads or other equipment be made or supplied in an existing
sprinkler system by reason of Tenant's business, the location of
partitions, trade fixtures, or other contents of the demised premises,
or if any such sprinkler system installations,
modifications, alterations, additional sprinkler heads or other
such equipment, become necessary, by reason of Tenant's specific use of
the demised premises or the location of partitions, trade fixtures or
other contents of the demised premises, to prevent the imposition of a
penalty or charge against the full allowance for a sprinkler system in
the fire insurance rate set by said Exchange or any otherbody making fire
insurance rates, or by any fire insurance company, Tenant shall, at Tenant's
expense, promptly make such sprinkler system installations, changes,
modifications, alterations, and supply additional sprinkler heads or other
equipment as required, whether the work involved shall be structural or
non-structural in nature. Tenant shall pay to Owner as additional rent
*, on the first day of each month during the term of this lease of the
contract perice for sprinkler supervisory service.
Elevators, Heat,
Cleaning:
31. Tenant shall, at Tenant's expense, keep the demised premises,
including the windows, clean and in order, to the reasonable
satisfaction of owner, and for that purpose shall employ person or persons,
or corpororations approved by Owner. Tenant shall pay to Owner the cost
of removal of any of Tenant's refuse and rubbish from teh building.
Bills for the same shall be rendered by Owner to Tenant at such time as
Owner may elect, and shall be due and payable hereunder, and the amount
of such bills shall be deemed to be, and be paid as additional rent.
Tenant shall, however, have the option of independently contracting for
the removal of such rubbish and refuse in the event that Tenant does
not wish to have same done by employees of owner Under such
circumstances, however, the removal of such refuse and rubbish by
others shall be subject to such rules and regulations as, in the
judgment of Owner, are necessary for the proper operation of the
building. Owner reserves the right to stop service of the heating,
elevator, plumbing and electric systems, when necessary by reason
of accident or emergency, or for repairs, alterations, replacements
or improvements, which in the judgement of Owner are desirable or
necessary to be made, until said repairs, alterations, replacements
or improvements shall have been completed. If the building of
which the demised premises are a part supplies manually operated
elevator service, Owner may proceed diligently with alterations
necessary to substitute automatic control elevator service without
in any way affecting teh obligations of Tenant hereunder.
* - Tenant's proportionate Share
Captions:
33. The Captions are inserted only as a matter of convenience
and for reference, and in no way define, limit or descibe
the scope of this lease nor the intent of any provision thereof.
Definitions:
34. The term"Owner"as used in this lease means only the owner
of the fee or of the leasehold of the building, or the mortgagee
in possession for the time being, of the land and building (or the
owner of a lease of the building or of the land and building)
of which the demised premises form a part, so that in the event of
any sale or sales or conveyance, assignment or transfer of said
land and building or of said lease, or in the event of a lease
of said building, or of the land and building, the said Owner
shall be and hereby is entirely freed and relieved of all
covenants and obligations of Owner hereunder, and it shall be
deemed and construed without further agreement between the
parties or their successors in interest; or between the parties
and the purchaser, grantee, assignee or transferee at any such
sale, or the said lessee of the building, or of the land
and building, that the purchaser or the lessee of the building
has assumed and agreed to carry out any and all covenants and
obligations of Owner hereunder. The words "re-enter"and
"re-entry" as used in this lease are not restricted to their
technical lega1 meaning. The term "rent" includes the
annual rental rate whether so expressed or expressed in monthhly
installments, and "additional rent," "Additional rent" means
all sums which shall be due to Owner from Tenant under this lease,
in addition to the annual rental rate. The term "business days''
as used in this lease, shall exclude Saturdays, Sundays
and all days observed by the State or Federal Government as
legal holidays, and those designated as holidays by the applicable
building service union employees service contract, or by the
applicable Operating Engineers contract with respect to HVAC
service. Wherever it is expressly provided in this lease that
consent shall not be unreasonably withheld, such consent shall
not be unreasonably delayed.
Adjacent
Excavation-
Shoring:
35. 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, a license to enter upon the demised premises for the
purpose of doing such work as said person shall deem
necessary to preserve the wall or the building, of which
demised premises form a part, from injury or damage, and to
support the same by proper foundations, without any claim for
damages or indemnity against Owner, or diminution or abatement
of rent.
Rules and
Regulations:
36. Tenant and Tenant's servants, employees, agetns, visitors
and licensees, shall observe faithfully, and comply strictly
with, the Rules and Regulations annexed hereto and such other
and further reasonable Rules and Regulations as owner or
Owner's agents may from time to time adopt. Notice of any
additional Rules or Regulations shall be given in such manner
as Owner may elect. In case Tenant disputes the reasonableness
of any additional Rules, or Regulations hereafter made or
adopted by Owner or Owner's agents, the parties hereto agree
to submit the question of the reasonableness of any additional
Rules, or Regulations upon Tenant's part shall be deemed waived
unless the same shall be asserted by service of a notice, in
writing, upon Owner, within fifteen (15) days after the
giving of notice thereof. Nothing in this lease contained
shall be construed to impose upon Owner any duty or obligation
to enforce 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 an other tenant, its servants, employees, agents,
visitors or licensees.
Glass:
37. Owner shall replace, at the expense of Tenant, any and
all plate and other glass damaged or broken from any cause
whatsoever in and about the demised premises. Owner may
insure and keep insured. ar Tenant's expense, all plate and other
glass in the demised premises for and in the name of Owner.
Bills for the premiums therefore shall be rendered by Owner to
Tenant at such times as Owner may elect, and shall be due
from, and payable by Tenant when rendered, and the amount
thereof shall be deemed to be, and be paid as, additional
rent.
Estoppel Certificate:
38. Tenant, at any time, and from time to rime, upon at
least ten (10) days prior notice by Owner, shall execute,
acknowledge and deliverto Owner, and/or to any other person,
firm or corporation specified by Owner, a statemenf c
ertifying 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, stating whether or not
to Tenant's knowledge, there exists any default by Owner under
this lease, and, if so, specifying each such default and
such other informationas sball be reasonably required of Tenant.
Successors
and Assigns:
40. The covenants, conditions and agrcemems comamed in this
lease shall bind and inure to the benefit of Owner and Tenant
and their respective heirs, distributees. executors,
administrators, successors, and except as otherwise provided
in this lease, their assigns, Tenant shall look only to
Owner's estate and interest in the land and building for the
satisfaction of Tenant's remedies for the collection of a
judgement (or other judicial process) against Owner in the
event of any default by Owner hereunder, and no other property
or assets of such Owner (or any partner, member, officer or
director thereof, disclosed or undisclosed), shall be subject
to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under, or with respect to,
this lease, the relationship of Owner and Tenant hereunder, or
Tenant's use and occupancy of the premises.
SEE RIDER 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.
80 ORVILLE DRIVE ASSOCIATES LLC
By: Rechler Equity I LLC, its managing member
By: Rechler Equity MM I LLC, its managing member
By: Rechler Equity LLC, its managing member
By: /s/ Mitchell Rechler
Name:_______________
Title:______________
SCIENTIFIC INDUSTRIES, INC.
By: /s/ Helena Santos
_____________________
Name:
Title:
ACKNOWLEDGEMENT
STATE OF NEW YORK,
SS.:
COUNTY OF
On the day of
in the year before me, the undersigned,
a Notary Public in and for said State, personally appeared
__________________________________personally known to me or
proved to me on the basis of satisfactory evidence to be the
inclividual(s) whose name(s) is (are) subscribed to the
within instrument and acknowledged to me that he/sbe/they
executed the same in his/her/their capacity(ies), and that
by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
_______________________
NOTARY PUBLIC
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND MADE A PART oF THIS
LEASE
IN ACCORDANCE WITH ARTICLE 36.
1. The sidewalks, entrances. driveways, passages, courts,
elevators, vestibules, stairways, corridors or halls shall not,
be obstructed or encumbered by Tenant or used for any purpose
other than for ingress or egress from the demised premises and
for delivery of merchandise and equipment in a prompt and
efficient manner, using elevators and passageways designated for
such delivery by Owner. There shall not be used many space, or
in the public hall of the building, either by Tenant or by
jobbers or others in the delivery or receipt of merchandise,
any hand trucks, except those equipped with rubber tires and
sideguards. If said premises are situated on the ground floor
of the building. Tenant shall further, at Tenant's expense.
keep the sidewalk and curb in fron1 of said premises clean
and me from see. snow,din and rubbish.
2. The water and wash closest and plumbing fixtures shall
not be used for any purposes other than those for which
they were designed or constructed, and no sweepings, rubbish,
rags, acids or other substance shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting
from the violation of this rule shall be borne by Tenant,
whether or not caused by Tenant, its clerks, agents, employees
or visitors.
3. No carpet, rug or other article shall be hnng or shaken
out of any window of the building; and Tenant shall nor sweep
or throw. or permit to be swept or lhrc:wn substances from the
demised premises, any dirt or other substance into any of the
corridors of halls, elevators, or out of the doors or windows or
stairways of the building, and Tenant shall not use, keep, or
permit to be used or kept, any foul or noxious gas or substance
in the demised premises, or permit or suffer the demised
premises to be occupied or used in a manner offensive or
objectionable to Owner or other occupant of the buildings by
reason of noise, odors, and or vibrations, or interfere in
any way, with other tenants or those having business therein,
nor shall any bicycles, vehicles, animals, fish or birds be
kept in or about the building. Smoking or carrying lighted
cigars or cigarettes in the building is prohibited.
4. No awnings or other projections shall be attached
to the outside walls of the building without the prior written
consent of Owner.
_ 5. No sign, advertisement, notice or other lettering shall
be exhibited, inscribed, painted or affixed by Tenant on any
part of the outside of the demised premises or the building, or
on the inside of the demised premises if the same is visible
from the outside of the demised premises, withou the prior
written consent of Owner, except that the name of Tenant may
appear on the entrance door of the demised premises. In the
event of the violation of the foregoing by Tenant, Owner may
removes ame without any liability, and may charge the expense
incurred by such removal to Tenant. Interior signs on doors
and directory tablet shall be inscribed, painted, or affixed
for Tenant by Owner at the expense of Tenant, and shall be of
a size, color and style acceptable to Owner.
6. Tenant shall not mark, paint, drill into, or in any way
deface any part of the demised premises or the building of
which they form a part. No boring, cutting, or stringing of wires
shall be permitted, except with the prior written consent of
Owner and as Owner may direct. Tenant shall not lay linoleum,
or other similar floor covering, so that the same shall come
in direct contact with the floor of the demised premises, and,
if linoleum or other similar floor covering is desired to be
used, an interlining of builder's deadening felt shall be first
affixed to the floor, by a paste or other material, soluble in
water, the use of cement or other similar adhesive material
being expressly prohibited.
7. No additional locks or bolts of any kind shall be
placed upon any of the doors or windows by Tenant, nor shall
any changes be made in existing locks or mechanism thereof,
Tenant must, upon the termination of his tenancy, restore to
Owner all keys of stores, offices and toiler rooms either
furnished to, or otherwise procured by, Tenant, and in the
event of the loss of any keys, so furnished. Tenant shall
pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise
and bulky matter of any description shall be delivered to
and removed from the demised premises only on the freight
elevators and through the service entrances and corridors,
and only during hours, and in a manner approved by Owner,
Owner reserve sthe right to inspect all freight to be brought
into the building, and to exclude from the building all freight
which violates any of these Rules and Regulations of the lease,
of which these Rules and Regulations are a part.
9: Tenant shall not obtain for use upon the demised premises
ice, drinking water, towel and other similar services, or accept
barbering or bootblacking services in the demised premises,
except from persons authorized by Owner, and at hours
and under regulations fixed by Owner. Canvassing, soliciting
and peddling to the building is prohibited and Tenant shall
cooperate to prevent the same.
ll. Owner shall have the right to prohibit any advertising by
Tenant which in Owner's opinion, tends to impair the reputation
of the building or its desirability as a loft building, and upon
written notice from Owner. Tenant shall refrain from or
discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept, in
or on the demised premises, any inflammable, combustible, explosive
or hazardous fluid, material, chemical or substance. or cause or
permit any odors of cooking or other processes, or any unusual or
other objectionable odors, to permeate in, or emanate from, the
demised premises.
13. Tenant shall not use the demised premises in a manner
which disturbs or interferes with other tenants in the
beneficial use of their premises.
14. Refuse and Trash. (1) Compliance by Tenant. Tenant
covenants and agrees, at its sole cost and expense,to comply with
all present and future laws, orders, and regulations, of all state,
federal, municipal, and local governments, departments, commissions
and boards regarding the ollection, sorting, separation and
recycling of waste products, garbage, refuse and trash.
Tenant shall sort and separate such waste products, garbage,
refuse and trash into such categoriesas providedby law. Each
separately sorted category of waste products, garbage. refuse
and trash shall be placed in separate receptacles reasonably
approved by Owner, Tenant shall remove, or cause to be removed
by a contractor acceptable to Owner, at Owner's sole discretion,
such items as Owner may expressly designate. (2) Owner's Rights
in Event of Noncompliance. Owner has the option to refuse
to collect or accept from Tenant waste products. garbage, refuse
or trash (a) that is not separated and sorted as required by
law or (b) which consists of such items as Owner may expressly
designate for Tenant's removal, and to require Tenant to arrange
for such collection at Tenant's sole cost and expense, utilizing
a contractor satisfactory to Owner, Tenant shall pay all costs,
expenses, fines, penalties or damages that may be imposed on
Owner or Tenant by reason of Tenant's failure to comply with the
provisions of this Building Rule 14, and, at Tenant's sole
cost and expense, shall indemnity, defend and hold Owner harmless
(including reasonable legal fees and expenses) from and against
actions, claims and suits arising from such noncompliance,
utilizing counsel reasonably satisfactory to Owner
___________________________________________________________________
RIDER TO LEASE dated August 5, 2014 between 80 ORVILLE
DRIVE ASSOCIATES LLC, as Owner, and SCIENTIFIC INDUSTRIES, INC.,
as Tenant
41. Definitions. For purposes of this lease, the term
"Building" shall mean the building located at 80 Orville Drive,
Bohemia, New York of which the Demised Premises form a part, and
the term "Real Property" shall mean the Building and the land and
improvements appurtenant to and used in connection with the Building.
The parties hereby stipulate and agree that the Demised Premises
(herein referred to as the "Demised Premises" or the "demised
premises") contains 18,950 rentable square feet of space
(designated at Suite 102) in the Building containing 92,742
rentable square feet which constitutes 20.43 percent of the area
of the Building ("Tenant's Proportionate Share"). For the purposes
of this rider, all references to the term "Landlord" shall mean and
refer to Owner.
42. Term.
(a) The term ("Term", "term" or "Demised Term") of this
lease, Tenant's right to occupy the Demised Premises and Tenant's
obligation to pay Rent (as defined in Paragraph 43 hereof) and all
items of additional rent shall commence on the later to occur of (i)
Substantial Completion (as hereinafter defined) of Landlord's Work
(as hereinafter defined), and (ii) November 1, 2014 (the "Commencement
Date"); provided, however, that, subject to the terms of Paragraph 64
hereof, if Substantial Completion has not occurred on or prior to
January 31, 2015, then Tenant shall have the right to holdover under
the 70 Orville Lease (as hereinafter defined), without penalty,
until Substantial Completion of Landlord's Work and delivery of
possession of the Demised Premises to Tenant in the condition required
hereunder have occurred. Upon the occurrence of the Commencement
Date, the 70 Orville Lease shall terminate. The Term of this lease
shall expire on the day preceding the day which is ten (10) years and
three (3) months after (x) the Commencement Date (but only if the
Commencement Date occurred on the first day of a calendar month) or
(y) the first day of the first full calendar month following the
Commencement Date (if the Commencement Date did not occur on the
first day of a calendar month) (the "Expiration Date").
(b) The terms "Substantial Completion" and "Substantially
Completed" (or other variations thereof), as used herein, are defined
to mean when the only items of Landlord?s Work needed to be completed
are punchlist items, the non-completion of which would not delay
occupancy, including, without limitation, such details of construction,
decoration, mechanical adjustment or installation which do not hinder
or impede the use or occupancy of the Demised Premises for its
intended use; but if Landlord shall be delayed in such "Substantial
Completion" as a result of (i) Tenant's changes to the plans or
specifications attached hereto as Exhibit A; (ii) Tenant's request
for materials, finishes or installations other than Landlord's
standard; (iii) the performance or completion of any work, labor or
services by a party employed by Tenant; (vi) Tenant's interference
or failure to reasonably cooperate with the performance of
Landlord's Work (including without limitation the execution of
documents required by the local municipality); (v) Tenant's
failure to approve, or approve subject to adjustments required to
reflect the Rental Plan annexed hereto as Exhibit A, final
construction documents within five (5) business days after
submission thereof to Tenant for approval; (vi) Tenant's failure
to provide Landlord with finish specifications for Landlord's
Work within seven (7) days of Landlord's delivery to Tenant of a
fully-executed original of this lease; or (vii) Tenant's failure
to pay the initial installment of Rent and/or the other monies
to be paid to Landlord as required hereunder (it being understood
and agreed that Landlord shall not be required to commence the
performance of Landlord?s Work until all such deliveries and
payments have been made) (all such delays being hereinafter
referred to as ?Tenant Delay?); then the Commencement Date
shall be accelerated by the number of days of such Tenant Delay
(however, Landlord shall not be obligated to deliver the Demised
Premises to Tenant and Tenant shall not have the right to occupy
the Demised Premises until Landlord?s Work is ?Substantially
Completed?). Moreover, in the event of an accumulation of
Tenant Delays in excess of forty-five (45) days in the aggregate,
the Commencement Date shall automatically be deemed to be the
date that is ten weeks following the effective date of this
lease. Tenant waives any right to rescind this lease under
Section 223-a of the New York Real Property Law or any successor
statute of similar import then in force and further waives the
right to recover any damages which may result from Landlord's
failure to deliver possession of the Demised Premises on the
Commencement Date set forth in Paragraph 42(a) above. Landlord
will obtain a Certificate of Occupancy or Certificate of
Completion for the Demised Premises after the Commencement Date.
Notwithstanding anything to the contrary contained herein,
Landlord shall use commercially reasonable efforts to complete
any punchlist items within thirty (30) days of Substantial
Completion, provided same shall be reasonably capable of
completion within such timeframe.
(c) A "Lease Year" shall be comprised of a period
of twelve (12) consecutive months (except the eleventh Lease Year,
which shall consist of three (3) consecutive months). The first
Lease Year shall commence on the Commencement Date but,
notwithstanding the first sentence of this paragraph, if the
Commencement Date is not the first day of a month, then the first
Lease Year shall include the additional period from the
Commencement Date to the end of the then current month. Each
succeeding Lease Year shall end on the anniversary date of the
last day of the preceding Lease Year (except the eleventh Lease
Year). For example, if the Commencement Date is December 1, 2014,
the first Lease Year would begin on December 1, 2014, and end on
November 30, 2015, and each succeeding Lease Year would end on
November 30th (except the eleventh Lease Year, which would end
on February 28, 2025). If, however, the Commencement Date is
December 2, 2014 the first Lease Year would end on December 31,
2015, the second Lease Year would commence on January 1, 2016,
and each succeeding Lease Year would end on December 31st
(except the eleventh Lease Year, which would end on March 31,
2025).
(d) If, within five (5) business days after
Landlord's delivery to Tenant of a notice (which may be via fax
or email or via written notice) confirming the Commencement Date
under this lease and, if applicable, the date of substantial
completion, Tenant does not object to the accuracy of the dates
set forth in such notice, Tenant shall be deemed to have
approved the dates set forth in said notice.
(e) Tenant shall be provided access to the Demised
Premises (i) three (3) weeks prior to the Commencement Date for
the setting up and installation of telephone, computer and
internet connections, compression lines and an alarm system,
and (ii) two (2) weeks prior to the Commencement Date in order
to place inventory and personal property and for installation
of furniture, fixtures and equipment, provided, however, that
(a) in no event shall Tenant install any racks in the Demised
Premises in the event Substantial Completion has not occurred
and (b) in no event shall Tenant materially interfere with
Landlord?s Work during such early access periods. If Tenant
or its agents and/or contractors enter the Demised Premises
prior to the Commencement Date in order for Tenant to install
its telephone, internet and computer lines, alarm system, or
furniture, or for the performance of any Alterations (as
hereinafter defined) or installations in preparation for Tenant's
occupancy thereof, all of the provisions of this lease,
except Tenant's obligation to pay Rent, shall govern such entry
(including without limitation, Tenant's insurance and
indemnification obligations). Any such entry shall be subject
to Landlord?s prior written consent. Prior to entering the
Demised Premises Tenant shall deliver to Landlord (a) evidence
of all insurance policies required to be maintained by Tenant
under this lease, and (b) evidence of insurance satisfactory
to Landlord maintained by the contractors or vendors entering
the Demised Premises. Tenant shall coordinate Tenant?s (and/or
Tenant's contractors and/or Tenant?s employees) entry upon the
Demised Premises and the performance of the above-referenced
installations (and the timing thereof) with Landlord, and Tenant
(and Tenant's contractors and employees) shall not interfere with
Landlord's performance of Landlord's Work (hereinafter defined),
if any, in entering upon the Demised Premises and/or in performing
such installations. In the event that Tenant (and/or Tenant's
contractors and/or Tenant's employees) interferes with Landlord's
performance of Landlord's Work, such interference shall
be deemed a Tenant Delay (in addition to those delineated herein).
43. Rent.
(a) During the term of this lease, Tenant shall pay
minimum annual rent ("Rent?) as follows:
During the first Lease Year, the Rent shall be $176,866.62,
payable $37,899.99 for the first month and $12,633.33 for each
of the second through twelfth months.
During the second Lease Year, the Rent shall be $156,147.96,
payable in equal monthly installments of $13,012.33.
During the third Lease Year, the Rent shall be $160,832.40,
payable in equal monthly installments of $13,402.70.
During the fourth Lease Year, the Rent shall be $165,657.36,
payable in equal monthly installments of $13,804.78.
During the fifth Lease Year, the Rent shall be $170,627.16,
payable in equal monthly installments of $14,218.93.
During the sixth Lease Year, the Rent shall be $175,746.00,
payable in equal monthly installments of $14,645.50.
During the seventh Lease Year, the Rent shall be $181,018.32,
payable in equal monthly installments of $15,084.86.
During the eighth Lease Year, the Rent shall be $186,448.92,
payable in equal monthly installments of $15,537.41.
During the ninth Lease Year, the Rent shall be $192,042.36,
payable in equal monthly installments of $16,003.53.
During the tenth Lease Year, the Rent shall be $197,803.56,
payable in equal monthly installments of $16,483.63.
During the eleventh Lease Year (which shall consist of
three (3) months only), the Rent shall be $25,667.76, payable
$16,978.14 for the first month and $4,344.81 for each of the
second and third months.
(b) Additionally, should the Commencement Date
be a date other than the first day of a calendar month, Tenant
shall pay a pro rata portion of the Rent on a per diem basis,
based upon the second full calendar month of the first Lease
Year, from such date to and including the last day of that
current calendar month, and the first Lease Year shall
include said partial month. The rent payable for such
partial month shall be in addition to the Rent payable
pursuant to the Rent schedule set forth above. Tenant
will pay any partial month's Rent within ten (10) days of
Landlord's delivery of an invoice
therefor.
(c) The minimum annual rent hereinabove provided
for shall be in addition to all other payments to be made by
Tenant as herein provided except as set forth to the contrary
in this lease. It is the purpose and intent of the parties
hereto that the minimum annual rent shall be absolutely net to
Landlord, except as set forth to the contrary in this lease,
so that this lease shall yield, net to the Landlord, the minimum
annual rent, and that all costs, expenses and obligations of
every kind and nature whatsoever relating to the Demised
Premises which may arise or become due during the term of this
lease shall be paid by Tenant and that Landlord shall be
indemnified and saved harmless by Tenant from and against the
same, except as otherwise expressly provided in this lease.
(d) Any sums of money required to be paid by
Tenant to Landlord in addition to the rent reserved under
this Paragraph 43, shall be deemed additional rent, shall be
paid within ten (10) days after written demand therefor
(unless another time period is provided herein) without
deduction or offset, and in the event Tenant fails to pay
such additional rent, Landlord shall be entitled to the same
remedies under this lease or by law, as are available to
Landlord for the nonpayment of rent, including, without
limitation, summary dispossess proceedings.
(e) Notwithstanding the Rent schedule set forth
in Paragraph 43(a) above, provided Tenant is not in monetary
default of any of its obligations under this lease beyond the
expiration of any applicable notice and cure period, Tenant
shall receive a Rent credit in the total amount of $34,346.85
to be applied in three (3) installments of $11,448.95 toward
the Rent due with respect to each of the second and third
full calendar months of the first Lease Year and the first
full calendar month of the second Lease Year.
44. Utilities.
(a) Tenant shall furnish and pay for, at its sole
cost and expense, all utilities supplied to the Demised Premises
(with the exception of water) by any utility company, whether
public or private, including but not limited to gas, electricity,
fuel oil and telephone. Tenant shall open an account in its
own name on or before the Commencement Date. Notwithstanding
the foregoing, if as of the Commencement Date, the electric
and/or natural gas service is not separately metered for the
Demised Premises Tenant shall pay to Landlord, as additional
rent, within ten (10) days of Landlord?s invoice thereof, a
prorata share of the electricity and/or natural gas charges
as measured by the meter servicing the Demised Premises (such
prorata share to be calculated based upon the portion of the
area served by such meters represented by the Demised Premises).
In the event Tenant fails to open an account in its own name
with the electric and/or natural gas utility company as of the
Commencement Date (or as of the date that the Demised Premises
becomes separately metered, if later than the Commencement Date),
Tenant shall reimburse Landlord for the utility charges incurred
by Landlord in providing service to the Demised Premises prior
to the date the accounts have been transferred and shall pay
Landlord's administrative fee of seven and one-half (7.5%)
percent of the amount so due. Such sums shall be paid by
Tenant as additional rent, within ten (10) days of Landlord's
invoice therefor. Nothing in the foregoing shall be deemed to
relieve Tenant from the obligation to transfer the accounts to
its name or to prevent Landlord from terminating the utility
service account in its name effective as of the Commencement
Date or any date thereafter.
(b) The parties hereby acknowledge and agree that
the Demised Premises are not separately metered for water or for
sprinkler supervisory service. In addition to the additional
rent payable under Paragraph 47 below, Tenant shall pay to
Landlord, as additional rent, within ten (10) days of Landlord's
invoice therefor, Tenant's Proportionate Share of Landlord's cost
for water consumed at the Building and/or Real Property, for
sprinkler supervisory service and for sewer charges, if any,
assessed or imposed against the Building and/or Real Property.
Tenant shall not use water for other than normal lavatory
purposes.
45. Alterations.
(a) Supplementing Paragraph 3 of the printed form
portion of this lease, any amount billed by Landlord's
construction affiliate in connection with any work performed
by such affiliate on behalf of Tenant shall be deemed to be
additional rent for purposes of this lease. Further supplementing
Paragraph 3 of the printed form portion of this lease, with respect
to any and all alterations, installations, additions and
improvements (each, an "Alteration") permitted by Landlord to
be performed by or on behalf of Tenant in the Demised Premises
(other than Landlord?s Work), Tenant will deliver to Landlord
certificates evidencing Worker's Compensation Insurance and
Contractor's General Liability Insurance in the amount reasonably
satisfactory to Landlord (but in no event less than the amounts
set forth in paragraph 59 herein) prior to the commencement of
such work. Any and all Alterations and any and all structures
or fixtures, except movable trade fixtures not attached to the
realty, installed by or on behalf of Tenant shall be deemed
attached to the freehold and automatically become the property
of Landlord upon installation, unless Landlord shall elect
otherwise. If Landlord elects to have Tenant remove same at the
expiration of the term of this lease, Tenant shall, prior to the
expiration or sooner termination of the term of this lease,
perform such removal and repair, at its own cost and expense,
any damage to the Demised Premises caused by said removal.
Notwithstanding the foregoing, Landlord may, at its option, in
lieu of requiring Tenant to perform such removal and restoration,
invoice Tenant for the reasonable estimated cost for performing
such work and Tenant shall pay such invoice, as additional rent,
within thirty (30) days of such invoice. All Alterations
(other than those performed by Landlord or its construction
affiliate) made to the Demised Premises shall be subject to
Landlord's construction inspection fee of 8% of the cost thereof
which shall be payable, as additional rent, to Landlord's
construction affiliate. Such 8% fee shall not be charged in
connection with Tenant?s initial setup of the Demised Premises
in order to prepare the Demised Premises for Tenant's initial
occupancy thereof. In receiving such fee, Landlord assumes no
responsibility for the quality or manner in which any Alterations
are performed (except for those Alterations performed by Landlord
or Landlord's construction affiliate). Tenant shall not, without
the express written consent of Landlord, enter upon the roof or
attach or install anything thereon or make any Alterations thereto.
With respect to any mechanic?s lien for which Tenant is responsible
for removing or bonding hereunder, Tenant shall reimburse Landlord
for all costs and expenses incurred by Landlord in connection
therewith (including, without limitation, reasonable attorneys'
fees and disbursements of Landlord and any sums payable to Landlord's
lender in connection therewith). Notwithstanding anything
contained herein to the contrary, Landlord shall not unreasonably
withhold, condition or delay its consent to any proposed non-
structural and interior Alteration, provided that, Landlord shall
have the right to require Tenant to employ Landlord or its
construction affiliate to perform any Material Alteration (as
hereinafter defined). The term "Material Alteration", as used
herein, means any Alteration which may, in the reasonable opinion
of Landlord (i) be structural in nature; (ii) affect the exterior
or any structural portions or components of the Building; (iii)
be visible from outside of the Demised Premises; (iv) affect
the usage or proper functioning of any of the Building systems
(including, without limitation, the heating, ventilation, air
conditioning, plumbing, electrical, sprinkler or security systems
serving the Building); (v) jeopardize health safety or life
safety; (vi) require a change to the certificate of occupancy
for the Building; (vii) require the issuance of a building permit
or other authorization by any governmental or quasi-governmental
entity exercising jurisdiction over the Building; (viii) require
the consent of any mortgagee or ground lessor of the Building
and/or the Real Property; (ix) cause any previously non-mandatory
legal requirement to become a mandatory legal requirement with
regard to the Building (including, without limitation, any such
legal requirement set forth in the Americans with Disabilities
Act); or (x) have a cost of completion in excess of $10,000.00.
With respect to any such Material Alterations performed by
Landlord or Landlord?s construction affiliate, Landlord or
Landlord's construction affiliate shall charge Tenant for such
work at rates that are comparable to those of other general
contractors in the local market (i.e., Suffolk County, New York).
Landlord hereby agrees that Tenant shall be permitted to install
a kitchenette and compressor lines within the Demised Premises
provided that such installation does not materially interfere
with or delay Landlord's Work.
(b) Tenant shall not be permitted to make, or to
engage a contractor or artist to make, any Alterations,
decorations, installations, additions or other improvements
("Visual Alteration?) which may be considered a work of visual
art of any kind, and/or which might fall within the protections
of the Visual Artists Rights Act of 1990 ("VARA") unless: (i)
Tenant obtains, from each artist and/or contractor who will be
involved in said Visual Alteration, valid written waivers of
such artist's and/or contractor's rights under VARA in form
and content reasonably acceptable to Landlord; and (ii) Landlord
consents to such Visual Alteration in writing. In the event that
\a claim is brought under VARA with respect to any Visual
Alteration performed in or about the Building by or at the
request of Tenant or Tenant's agents or employees, Tenant shall
indemnify and hold harmless Landlord against and from any
and all such claims. If any action or proceeding shall be
brought against Landlord by reason of such claim under VARA,
Tenant agrees that Tenant, at its expense, will resist and
defend such action or proceeding and will employ counsel
reasonably satisfactory to Landlord therefor. Tenant shall
also pay any and all damages sustained by Landlord as a
result of such claim, including, without limitation,
reasonable attorney?s fees and the cost to Landlord of
complying with VARA protections (which shall include damages
sustained as a result of Landlord's inability to remove
Visual Alterations from the Demised Premises). Failure of
Tenant to strictly comply with the provisions of this
Paragraph 45(b) shall be deemed a default under this lease,
and Landlord shall be entitled to pursue all appropriate
remedies provided herein, as well as at law or in equity.
The provisions of this Paragraph 45(b) shall survive the
expiration or sooner termination of this lease.
46. Sewer/Sanitary. It is understood and agreed that
in the event that sewer lines are installed or brought to
the Building, Landlord shall have no obligation to connect
the Demised Premises to such sewer lines; however, the Tenant
may, at its own cost and expense, request Landlord to connect
to such sewer lines. In the event Landlord is required to
connect the Building to such sewer lines, Tenant shall
reimburse Landlord, as additional rent, within ten (10) days
of Landlord's demand therefor, Tenant's Proportionate Share
of all costs and expenses incurred by the Landlord, directly
or indirectly, in connection with the Landlord's compliance
with such requirement.
47. Common Area Maintenance. Tenant agrees to pay, upon
Landlord's demand therefor, as additional rent, an amount
equal to Tenant's Proportionate Share of "Landlord's Cost"
of maintenance and repair of the Building and the landscaped,
parking and other common areas thereof. The term "Landlord's
Cost", as used herein, shall be deemed to include, without
limiting the generality of the foregoing, gardening,
landscaping, planting, replanting and replacement of flowers,
shrubbery, trees and grass, striping, the cost of electricity
and maintenance and replacement of exterior fixtures and bulbs,
with respect to the parking areas, repair of paving, curbs
and walkways, repair and cleaning of drainage facilities, trash,
rubbish and garbage removal with respect to the exterior of
the Real Property, snow and ice removal, exterminating, exterior
lighting, maintenance repair and replacement of the sanitary
system, maintenance and repair of the roof, rental of
machinery and equipment, cost of personnel to implement
all of the foregoing, security and security guard service,
if any, and other similar costs of the type incurred in the
operation of comparable properties plus Landlord's administrative
fee of seven and one-half percent on any amounts exceeding the
Base CAM Charge. Landlord and Tenant stipulate and agree that
Tenant?s Proportionate Share of Landlord?s Cost shall be
initially $852.75 per month (the "Base CAM Charge"). The parties
hereby agree that the Base CAM Charge is included in the rent
set forth in Paragraph 43 hereof. In the event that Tenant?s
Proportionate Share of Landlord's Cost increases over the
Base CAM Charge at any time during the term of this lease,
Landlord shall have the right to bill such increase to
Tenant monthly or otherwise and Tenant shall pay such increase
as additional rent within ten (10) days of Landlord's written
demand therefor. Notwithstanding the foregoing, in the event
that maintenance and repair of the Building, any building
systems or the landscaped, parking and other common areas
thereof are occasioned by the negligence or willful misconduct
of Tenant, its agents, contractors, employees or invitees,
Landlord shall perform the repair, at Tenant?s sole cost
and expense.
48. Repairs.
(a) Subject to the provisions of Paragraphs 9
and 58 of this Lease, during the full term of this lease,
Landlord shall make all structural repairs to the Demised
Premises, except those which shall have been occasioned by
the negligence or willful misconduct of Tenant, its agents,
contractors, employees or invitees, which repairs Landlord
shall make at Tenant?s sole cost and expense. Structural
repairs are hereby defined to be repairs to the roof (but
subject to the terms of Paragraph 47 hereof), the roof
supports, the bearing walls, foundation, the structural
steel and the exterior of the Building (except for windows,
doors and plate glass). Except for Landlord's obligations
specifically set forth in this Paragraph 48, Tenant shall,
at its own cost and expense, keep the Demised Premises in
good condition, repair and appearance at all times
throughout the term of this lease including, without
limitation, (i) maintenance, repair and replacement of
the electrical, plumbing, sprinkler (but only to the
extent that such sprinkler system is in the Demised
Premises or exclusively services the Demised Premises),
heating, air conditioning, ventilation, life safety and
all other mechanical systems (but only to the extent
that such life safety and other mechanical systems are
in the Demised Premises or exclusively service the Demised
Premises) servicing the Demised Premises; (ii) regularly-
scheduled cleaning and maintenance of the interior of
the Demised Premises; and (iii) the maintenance, repair
and replacement of all windows, doors and plate glass.
Notwithstanding anything to the contrary contained herein,
upon the expiration or sooner termination of this lease,
the Building systems shall be delivered to Landlord in
working order. Tenant shall at all times obtain and keep
in full force and effect for the benefit of Landlord and
Tenant with a responsible company doing business in Suffolk
County reasonably approved by Landlord a service, repair
and maintenance contract with respect to the heating,
ventilating and air conditioning systems servicing the
Demised Premises. A copy of such contract and renewals
thereof shall, upon issuance and thereafter not later
than ten (10) days prior to expiration, be furnished to
Landlord together with evidence of payment.
Notwithstanding anything to the contrary contained
herein, Tenant shall not be required to make any repairs
(whether structural or non-structural) to the extent same
are necessitated by the gross negligence or willful
misconduct of Landlord or its agents, employees or
contractors.
(b) If the Demised Premises shall be totally
damaged or rendered wholly untenantable by fire or other
casualty, and Landlord has not terminated this lease
pursuant to subsection (c) of Article 9 hereof, then
Landlord shall, as soon as reasonably practicable following
the occurrence of the subject fire or other casualty,
deliver to Tenant written notice of Landlord?s independent
architect?s estimated time for restoration of the Premises.
If the estimated date of completion of such restoration work
(the "Estimated Date of Completion") is more than twelve
(12) months, then Tenant shall have the right to
terminate this lease by written notice delivered to Landlord
within thirty (30) days following receipt of such written
notice by Landlord. In addition, if Landlord has not
completed the making of the required repairs and restored
and rebuilt the Premises and/or access thereto prior to the
Estimated Date of Completion, Tenant may serve notice on
Landlord of its intention to terminate this lease and, if
within thirty (30) days thereafter Landlord shall not have
completed the making of the required repairs and restored
and rebuilt the Premises, this lease shall terminate on the
expiration of such thirty (30) day period as if such
termination date were the Expiration Date. In the event
of the occurrence of a casualty described in the first
sentence of this Paragraph 48(b), provided that Landlord
does not terminate this lease pursuant to subsection
(c) of Article 9 hereof, Landlord shall use commercially
reasonable efforts to relocate Tenant to temporary space
in a building owned by Landlord or Landlord?s affiliate,
subject to availability.
49. Taxes.
(a) As used in and for the purposes of this
Paragraph 49, the following definitions shall apply:
(i) "Taxes" shall be the real estate
taxes, assessments, special or otherwise, sewer rents,
rates and charges, and any other governmental charges,
general, specific, ordinary or extraordinary, foreseen or
unforeseen, levied on a calendar year or fiscal year basis
against the Real Property or any interest therein.
Notwithstanding the foregoing, any tax benefit granted to,
or for the exclusive benefit of another tenant of the
Building shall be disregarded for the purposes of
calculating "Taxes" so that the ?Taxes? shall be all
payments that would have been payable by Landlord with
respect to the Real Property if not for such additional
benefit, it being understood and agreed that Landlord
shall not have the right to collect more in Taxes than
Landlord is obligated to pay. If at any time during
the Term the method of taxation prevailing at the date
hereof shall be altered so that there shall be levied,
assessed or imposed in lieu of, or as in addition to,
or as a substitute for, the whole or any part of the
taxes, levies, impositions or charges now levied,
assessed or imposed on all or any part of the Real
Property (w) a tax, assessment, levy, imposition or
charge based upon the rents received by Landlord,
whether or not wholly or partially as a capital levy
or otherwise, or (x) a tax, assessment, levy,
imposition or charge measured by or based in whole or
in part upon all or any part of the Real Property and
imposed on Landlord, or (y) a license fee measured by
the rent payable by Tenant to Landlord, or (z) any other
tax, levy, imposition, charge or license fee however
described or imposed; then all such taxes, levies,
impositions, charges or license fees or any part
thereof, so measured or based, shall be deemed to be
Taxes; provided, however, in no event shall Taxes
include any income taxes imposed on Landlord as the
owner of the Real Property (unless imposed as a
substitute or in lieu of other Taxes).
(ii) "Base Year Taxes" shall be
the Taxes actually due and payable with respect to
the 2014/2015 tax year.
(iii) "Escalation Year" shall mean
each calendar year which shall include any part of
the Term.
(b) Tenant shall pay Landlord increases
in Taxes levied against the Real Property as follows:
If the Taxes actually due and payable with respect
to the Real Property in any Escalation Year shall be
increased above the Base Year Taxes, then the Tenant
shall pay to the Landlord, as additional rent for
such Escalation Year, a sum equal to Tenant's
Proportionate Share of said increase ("Tenant's Tax
Payment" or "Tax Payment").
(c) Landlord shall render to Tenant a
statement containing a computation of Tenant's Tax
Payment ("Landlord's Statement"). Within fifteen
(15) days after the rendition of the Landlord's
Statement, Tenant shall pay to Landlord the amount
of Tenant?s Tax Payment. At Landlord's option, on
the first day of each month following the rendition
of each Landlord?s Statement, Tenant shall pay to
Landlord, on account of Tenant?s next Tax Payment,
a sum equal to one-twelfth (1/12th) of Tenant's last
Tax Payment due hereunder, which sum shall be subject
to adjustment for subsequent increases in Taxes.
(d) Intentionally omitted.
(e) Only Landlord shall have the right to
institute tax reduction or other proceedings for the
purpose of changing the Taxes (a "Tax Contest").
Tenant shall not institute or maintain any Tax Contest.
If, as a result of a Tax Contest, Landlord receives a
refund of Taxes attributable to any tax year or tax
years occurring during the Term (including the Base
Year Taxes), then, Landlord shall recalculate each
affected Tenant?s Tax Payment based upon the finally
determined Taxes for each affected Escalation Year
and deliver a revised Landlord?s Statement to Tenant.
If the Tenant?s Tax Payment on the revised Landlord's
Statement exceeds the amount paid by Tenant for the
original Tenant?s Tax Payment, then Tenant shall pay
to Landlord such excess, as additional rent, within
fifteen (15) days of the delivery of the revised
Landlord's Statement. In the event that the amount
paid by Tenant for the original Tenant's Tax Payment
exceeds the amount of the revised Tenant's Tax Payment,
then, provided Tenant had made full payment of Tenant's
Tax Payment for all affected Escalation Years, Landlord,
at its option, shall either refund such excess to Tenant,
or credit such excess to Tenant towards a future payment
of Taxes. Landlord shall have the right to include in
the calculation of Taxes (for a subsequent tax year), or
to deduct from any refund that may become due to Tenant
as a result of the Tax Contest, the reasonable costs
and expenses incurred by Landlord in instituting and
prosecuting a Tax Contest hereunder. If at the end of
the Term of this lease there remains a balance relating
to any overpayments made by Tenant with respect to
Taxes, such balance shall be refunded to Tenant.
(f) Landlord's failure to render a
Landlord's Statement with respect to any Escalation Year
shall not prejudice Landlord's right to render a
Landlord's Statement with respect to any Escalation Year.
The obligations of Tenant under the provisions of this
Article with respect to any additional rent for any
Escalation Year shall survive the expiration or any
sooner termination of the Demised Term.
(g) Notwithstanding anything contained to
the contrary in this Paragraph 49, if any increase
in Taxes shall be due to improvements made or performed
by or on behalf of Tenant, such increases shall be paid
in full by Tenant each year without apportionment.
(h) If the Taxes for any Escalation Year
shall equal or be less than the Base Year Taxes,
Tenant shall not be obligated to make any payments to
Landlord pursuant to this Section 49 in respect of
a Tenant's Tax Payment for such Escalation Year, but
in no event shall Tenant be entitled to any refund
or reduction in the Rent by reason of such fact.
50. Landlord's Financing. At the request of
Landlord, Tenant agrees to furnish Landlord with a
current financial statement prepared by a certified
public accountant or any other instrument which may
be needed by Landlord for purposes of financing or
selling the Real Property. If, in connection with
obtaining financing for the Real Property, a banking,
insurance or other recognized institutional lender
shall request reasonable modifications in this lease
as a condition to such financing, Tenant will enter
into an agreement reflecting such modifications
provided that such modifications do not increase the
obligations of Tenant hereunder (other than to a de
minimus extent) or materially adversely affect the
leasehold interest hereby created.
51. Use.
(a) Tenant covenants that the Demised
Premises will not be used so as to materially and
adversely interfere with other tenants in the Building.
Tenant also covenants that no noise or noxious fumes
or odors will be created by Tenant so as to materially
and adversely interfere with the quiet enjoyment of
the other tenants of their respective demised portions
of the Building. Landlord shall be the sole judge on
the question of noise, noxious fumes and odors.
(b) Tenant shall provide and maintain, at
its expense, the hand-held fire extinguishers that are
required to be maintained in Demised Premises by the
governmental agency having jurisdiction over this
matter.
(c) Tenant shall not obstruct or encumber,
or cause to be obstructed or encumbered, the sidewalks,
area ways or other public portions of the Real Property,
without limitation, the parking area, driveways and
access areas adjacent to the Demised Premises and used
in conjunction therewith; nor shall Tenant use same nor
permit same to be used for any purpose other than
ingress and egress to and from the Demised Premises.
However, Tenant may use the loading area appurtenant
to the Demised Premises for loading and unloading.
Tenant shall not store any materials, goods or other
items outside the building or the Demised Premises
including, without limitation, inventory, furniture
or equipment.
(d) Tenant shall, at its own cost and
expense, procure all necessary certificates, permits,
orders or licenses which may be required for the conduct
of its business by any governmental statute, regulation,
ordinance or agency and that all governmental requirements
relating to the use or uses of the Demised Premises by
the Tenant shall be complied with by the Tenant at its
own cost and expense.
(e) Tenant agrees that the value of the
Demised Premises and the reputation of the Landlord
will be seriously injured if the Demised Premises
are used for any obscene or pornographic purposes or if
any obscene or pornographic material is permitted in
the Demised Premises. Tenant further agrees that
Tenant will not permit any of these uses by Tenant or
a sublessee or assignee of the Demised Premises.
This Paragraph shall directly bind any successors in
interest to Tenant. Tenant agrees that if at any time
Tenant violates any of the provisions of this Paragraph,
such violation shall be deemed a breach of a substantial
obligation of the terms of this lease and objectionable
conduct. Pornographic material is defined for purposes
of this Paragraph as any written or pictorial matter with
prurient appeal or any objects or instruments that are
primarily concerned with lewd or prurient sexual activity.
Obscene material is defined here as it is in Penal
Law ?235.00.
52. End of Term. In the event Tenant fails to
surrender the Demised Premises to Landlord in the
condition required by the terms of this lease on or
before the expiration or earlier termination of this
lease, Tenant shall: one hundred fifty (150%) percent
of the Rent payable by Tenant for the third month prior to
the Expiration Date, with respect to the first two months
of holdover only, and two hundred (200%) percent of the
Rent payable by Tenant for the third month prior to the
Expiration Date of the term of this lease with respect to
any further holdover, and otherwise observe, fulfill and
perform all of its obligations under this lease, including,
but not limited to, those pertaining to additional rent, in
accordance with its terms; (ii) be liable to Landlord for
any payment or rent concession which Landlord may be
required to make to any tenant in order to induce such
tenant not to terminate an executed lease covering all or
any portion of the Demised Premises by reason of the
holdover by Tenant; and (iii) be liable to Landlord for
any actual damages suffered by Landlord (including any
reasonable attorneys? fees and disbursements) as the result
of Tenant?s failure to surrender the Demised Premises.
Notwithstanding anything contained in this Paragraph to
the contrary, the acceptance of any Rent or use and
occupancy paid by Tenant pursuant to this Paragraph 52,
shall not preclude Landlord from commencing and prosecuting
a holdover or eviction action or proceeding or any action or
proceeding in the nature thereof. The provisions of this
Paragraph 52 shall be deemed to be an "agreement expressly
providing otherwise" within the meaning of Section 232-c
of the Real Property Law of the State of New York and any
successor law of like import. Tenant expressly waives, for
itself and for any person claiming through or under Tenant,
any rights which Tenant or any such person may have under
the provisions of Section 2201 of the New York Civil Practice
Law and Rules and of any successor law of like import then
in force, in connection with any holdover or summary
proceeding which Landlord may institute to regain possession
of the Demised Premises. No holding over by Tenant after
the Term shall operate to extend the Term. The holdover,
with respect to all or any part of the Demised Premises,
of a person deriving an interest in the Demised Premises
from or through Tenant, including, but not limited to, an
assignee or subtenant, shall be deemed a holdover by Tenant
in the entire Demised Premises. If at any time during the
last month of the Term Tenant shall have removed all or
substantially all of Tenant's property from the Demised
Premises, Landlord may, and Tenant hereby irrevocably
grants to Landlord a license to, immediately enter and
alter, renovate and redecorate the Demised Premises,
without elimination, diminution or abatement of Rent, or
incurring liability to Tenant for any compensation, and
such acts shall have no effect upon this lease.
53. Landlord's Work. Tenant hereby accepts the Demised
Premises in its current ?as is? condition and agrees that
Landlord shall not be obligated to perform any work, make
any installation or incur any expense in order to prepare
the Demised Premises for Tenant?s occupancy, except that
Landlord shall deliver possession of the Demised Premises
with all building mechanical equipment the plumbing,
electrical and heating, ventilating and air conditioning
systems, sprinkler, the lights, man doors and garage doors
operational and in good working order and condition and
operational for its purpose, and Landlord, at its expense,
will perform the work and make the installations, as set
forth on the Rental Plan annexed hereto as Exhibit A,
which work is sometimes hereinafter referred to as the
"Landlord's Work". In the event that there is a conflict
or inconsistency between the provisions of this lease
(including the exhibits annexed hereto) and the work set
forth on the final construction documents to be prepared by
Landlord for Landlord?s Work and approved by Landlord and
Tenant after the date hereof, such final construction
documents shall be controlling.
54. Assignment/Subletting.
(a) Tenant covenants that it shall not assign
this lease nor sublet the Demised Premises or any part
thereof without the prior written consent of Landlord
in each instance. Tenant may assign this lease or sublet
the Demised Premises with Landlord's written consent provided:
(i) That such assignment or sublease is
for a use which is in compliance with the terms of this lease,
the then existing zoning regulations and the Certificate of
Occupancy;
(ii) That at the time of such assignment
or subletting, there is no default under the terms of this
lease on Tenant's part which has not been cured prior to the
expiration of all applicable grace periods;
(iii) That in the event of an assignment,
the assignee assumes in writing the performance of all of
the terms and obligations to be performed by Tenant under
this lease from and after the date of such assignment;
(iv) That a fully-executed copy of said
assignment or sublease be delivered by certified mail to
Landlord at the address herein set forth within ten (10)
days from the said assignment or sublease and within ninety
(90) days of the date that Tenant first provides Landlord
with the information required under Paragraph 54(f) below;
(v) That, in the event Tenant shall
request Landlord?s consent to a proposed assignment of this
lease or proposed sublease of all or a portion of the Demised
Premises, Tenant shall pay or reimburse to Landlord the
reasonable attorney fees and disbursements incurred by
Landlord in processing such request not to exceed $1,000.00
for the review of the proposed sublease and the initial
preparation of the consent document;
(vi) Such assignment or subletting shall
not, however, release Tenant from its liability for the full
and faithful performance of all of the terms and conditions
of this lease;
(vii) If this lease be assigned, or if
the Demised Premises or any part thereof be sublet or
occupied by anybody other than Tenant, Landlord may, after
default by Tenant, collect Rent and additional rent from the
assignee, subtenant or occupant, and apply the net amount
collected to the Rent and additional rent herein reserved;
(b) Notwithstanding anything contained in this
Paragraph 54 to the contrary, no assignment or subletting
shall be made by Tenant in any event until Tenant has offered
to terminate this lease as of the last day of any calendar
month during the term hereof and to vacate and surrender the
Demised Premises to Landlord on the date fixed in the notice
served by Tenant upon Landlord (which date shall be no sooner
than forty-five (45) days after receipt by Landlord of the
offer to terminate and no later than the date of such
proposed assignment or the commencement date of such proposed
sublease), and Landlord, within fifteen (15) days after the
receipt thereof, has not accepted in writing the offer by
Tenant to cancel and terminate this lease and to vacate and
surrender the Demised Premises.
(c) Notwithstanding anything contained to the
contrary in this lease, in no event shall Tenant have the
right to enter into more than one sublease at any time.
(d) Tenant shall not mortgage, pledge,
hypothecate or otherwise encumber its interest under this
lease without Landlord's prior written consent.
(e) Without affecting any of its other obligations
under this lease, Tenant will pay Landlord as additional rent
fifty (50%) percent of any sums or other economic consideration,
which (i) are payable to Tenant as a result of an assignment or
subletting whether or not referred to as rentals under the
assignment or sublease (after deducting therefrom the reasonable
costs and expenses incurred by Tenant in connection with the
assignment or subletting in question, including, without
limitation, broker commissions, reasonable attorneys? fees and
tenant improvement costs); and (ii) exceed in total the sums
which Tenant is obligated to pay Landlord under this lease
(prorated to reflect obligations allocable to that portion of
the Demised Premises subject to such sublease), it being the
express intention of the parties that Landlord and Tenant
shall share in any profit by reason of such sublease or
assignment. The failure or inability of the assignee or
subtenant to pay rent pursuant to the assignment or sublease
will not relieve Tenant from its obligations to Landlord under
this Paragraph 54(e). Tenant will not amend the assignment or
sublease in such a way as to reduce or delay payment of amounts
which are provided in the assignment or sublease approved by
Landlord. Any amendment or modification of an assignment or
sublease shall be deemed to be a new assignment or sublease
and shall require the prior written consent of Landlord.
(f) Prior to any proposed subletting or assignment,
Tenant shall submit to Landlord a written notice of the proposed
subletting or assignment, which notice shall contain or be
accompanied by the following information: (i) the name and
address of the proposed subtenant or assignee; (ii) the nature
and character of the business of the proposed subtenant or
assignee and its proposed use of the premises to be demised;
(iii) the most recent three (3) years of balance sheets and
profit and loss statements of the proposed subtenant or assignee
or other financial information reasonably satisfactory to Landlord;
and (iv) such shall be accompanied by a copy of the proposed
sublease or assignment of lease.
(g) The listing of an assignee's or subtenant's
name on the door or Building directory shall not be deemed
Landlord's consent hereunder.
(h) Tenant may, without the consent of Landlord,
assign this lease, or sublet all or a portion of the Demised
Premises, to an affiliated entity (i.e., an entity 20% or more
of whose ownership interest is owned by the same owners owning
20% or more of Tenant's ownership interest), parent or subsidiary
corporation of Tenant, provided that: (i) in the case of an
assignment, Tenant shall deliver to Landlord a fully-executed
assignment and assumption agreement pursuant to which such
assignee agrees to assume and perform all of the obligations of
Tenant under this lease, and (ii) Tenant shall not be released or
discharged from any liability under this lease by reason of such
assignment. In addition, Landlord shall grant its consent to a
request by Tenant to assign this lease to an entity to which it
sells its business as a going concern (either by selling or
assigning all or substantially all of its assets or stock) or
with which it may be consolidated or merged, provided that the
assignee has the same net worth (as calculated under generally
accepted accounting principals consistently applied, as the
Tenant prior to the proposed sale and/or assignment and further
provided that assignee shall, in writing, assume and agree to
perform all of the obligations of Tenant under this lease and
it shall deliver such assumption with a copy of such assignment
to Landlord within ten (10) days thereafter, and that Tenant shall
not be released or discharged from any liability under this
lease by reason of such assignment.
(i) Landlord agrees that it shall not unreasonably
withhold, condition or delay its consent to a subletting or
assignment in accordance with the terms of this Paragraph 54.
In determining reasonableness, there shall be taken into account
the character and reputation of the proposed subtenant or
assignee, the specific nature of the proposed subtenant's or
assignee's business and whether same is in keeping with other
tenancies in the building; the financial standing of the proposed
subtenant or assignee; and the impact of all of the foregoing
upon the Building and the other tenants of Landlord therein.
Landlord shall not be deemed to have unreasonably withheld its
consent if it refuses to consent to a subletting or assignment
to an existing tenant in any building which is owned by Landlord
or its affiliate or to a proposed subtenant or assignee with
whom Landlord is negotiating a lease or if at the time of
Tenant's request, Tenant is in default, beyond applicable
grace and notice periods provided herein for the cure thereof,
of any of the terms, covenants and conditions of this lease to
be performed by Tenant, or, if Landlord's lender's consent to
such transaction is required and same is not granted.
55. Parking. The parking areas available for the use of
the Tenant herein and the other tenants of the Building of
which the Demised Premises form a part are to be used by Tenant,
its servants, employees, agents, business invitees and patrons
on a first come first served basis, subject to the rules and
regulations of Landlord. However, in no event shall Tenant
use more than Tenant's Proportionate Share of the total number
of spaces at the Building. It is also understood and agreed
that Landlord shall have the right at any time to modify or
alter the parking layout and traffic pattern in the parking
areas and to diminish the available parking areas without any
liability to Tenant or any diminution or abatement of rent or
additional rent; provided, however, that Landlord agrees to
use commercially reasonable efforts to minimize interference
with Tenant's use and occupancy of the Demised Premises and
its access thereto when modifying or altering such parking
layout and/or traffic pattern.
56. Cleaning and Rubbish Removal.
(a) All cleaning and janitorial work at the
Demised Premises shall be done by Tenant at the sole cost
and expense of Tenant. Tenant shall provide for its own
trash, rubbish and garbage removal at its own expense and
all rubbish, trash and garbage shall be kept at and removed
from the Demised Premises subject to the rules and regulations
of the appropriate municipal authorities having jurisdiction
thereof, and shall at all times be kept in closed dumpsters
to be provided by Tenant at its sole cost and expense in
locations determined by Landlord.
(b) Tenant shall pay directly to the applicable
governmental municipalities any waste generation fee(s)
(including any service charges imposed in connection therewith)
which are charged by such governmental municipalities in
connection with Tenant?s use of Tenant?s designated dumpster
at the Building (collectively, the "Waste Generation Fees").
Within fifteen (15) days of Landlord?s demand for official
receipts stamped paid by the applicable governmental
authorities, Tenant shall provide Landlord with copies of
such receipts or other proof satisfactory to Landlord
evidencing such payment. If Tenant fails to pay the Waste
Generation Fees when due, Landlord may, but is not obligated
to, pay such Waste Generation Fees and all such Waste
Generation Fees paid by Landlord, plus any and all additional
costs and expenses incurred by Landlord in connection therewith,
including reasonable attorney?s fees, shall be deemed
additional rent and shall be payable by Tenant upon demand.
Tenant's payment of the Waste Generation Fees shall be in
addition to (and not in lieu of) any amounts which Tenant may
pay in connection with its removal of trash, rubbish and
garbage from its Demised Premises.
57. Hazardous Materials. Tenant shall keep or cause
the Demised Premises to be kept free of Hazardous Materials
(hereinafter defined). Notwithstanding the foregoing,
Tenant shall be entitled to keep and use, in compliance
with all applicable laws and subject to the further
provisions of this Paragraph 57, the materials set forth
on Schedule "A" (the "Permitted Materials") in the quantities
set forth therein. Without limiting the foregoing,
Tenant shall not cause or permit the Demised Premises to
be used to generate, manufacture, refine, transport,
treat, store, handle, dispose, transfer, produce or
process Hazardous Materials (other than Permitted
Materials) nor shall Tenant cause or permit, as a result
of any intentional or unintentional act or omission
on the part of Tenant or any person or entity claiming
through or under Tenant or any of their employees,
contractors, agents, visitors or licensees (collectively,
?Related Parties?), a release of Hazardous Materials
onto the Demised Premises or onto any other property.
Tenant shall comply with and ensure compliance by all
Related Parties with all applicable Federal, State and
Local laws, ordinances, rules and regulations, whenever
and by whomever triggered, and shall obtain and comply
with, and ensure that all Related Parties obtain and
comply with, any and all approvals, registrations or
permits required thereunder. Tenant shall (i) conduct
and complete all investigations, studies, samplings, and
testing, and all remedial removal and other actions
necessary to clean up and remove such Hazardous Materials,
on, from, or affecting the Demised Premises (a) in
accordance with all applicable Federal, State and Local
laws, ordinances, rules, regulations, policies, orders
and directives, and (b) to the satisfaction of Landlord,
and (ii) defend, indemnify, and hold harmless Landlord,
its employees, agents, officers, members, partners, principals
and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs,
or expenses of whatever kind or nature, known or unknown,
contingent or otherwise, arising out of, or in any way
related to, (a) the presence, disposal, release, or
threatened release of such Hazardous Materials which are on,
from, or affecting the soil, water, vegetation, buildings,
personal property, persons, animals, or otherwise;
(b) any personal injury (including wrongful death) or
property damage (real or personal) arising out of or
related to such Hazardous Materials; (c) any lawsuit
brought or threatened, settlement reached, or government
order relating to such Hazardous Materials; and/or (d)
any violation of laws, orders, regulations, requirements,
or demands of government authorities, or any policies or
requirements of Landlord, which are based upon or in any
way related to such Hazardous Materials, including, without
limitation, reasonable attorney and consultant fees,
investigation and laboratory fees, court costs, and
litigation expenses. Tenant shall immediately notify
Landlord in writing of any actual or threatened release
of any Hazardous Materials on, in or about the Demised
Premises, including notification to Landlord if Tenant
receives any notice or requests for inspection or
information from any Federal, State or local official or
agency which pertains to Hazardous Materials. Copies of
all reports, notices, correspondence, and other documents
received from or submitted to governmental authorities,
and of all technical data, test results, expert opinions
and other materials generated in connection with the
contamination or other response or remedial activities,
shall be provided to Landlord. At the expiration
or earlier termination of this lease or in the event
this lease is terminated, or Tenant is dispossessed,
Tenant shall deliver the Demised Premises to Landlord
free of any and all Hazardous Materials so that the
conditions of the Demised Premises shall conform with
all applicable Federal, State and Local laws, ordinances,
rules or regulations affecting the Demised Premises for
which Tenant is responsible hereunder. In the event that
Landlord has a good faith belief that there has been a
release of Hazardous Materials for which Tenant is
responsible hereunder, Landlord shall have the right to
engage an environmental engineering or consulting firm
to conduct an inspection of the Real Property and Demised
Premises at Tenant?s sole cost and expense. Tenant shall
reimburse Landlord for the cost of any such inspection
as well as the cost of any clean-up and testing performed
pursuant thereto with respect to Hazardous Materials for
which Tenant is responsible hereunder. In no event shall
Tenant be responsible for or with respect to any Hazardous
Materials in existence, arising or located on, at or under
the Demised Premises prior to the Commencement Date. For
purposes of this paragraph, "Hazardous Materials" includes,
without limitation, any flammable explosives, radioactive
materials, hazardous materials, hazardous wastes, hazardous
or toxic substances, or related materials defined in the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. Sections
9601, et seq.), the Hazardous Materials Transportation
Act, as amended (49 U.S.C. Sections 1801 et seq.), the
Resource Conservation and Recovery Act, as amended
(42 U.S.C. Sections 9601, et seq.), and in the regulations
adopted and publications promulgated pursuant thereto, or
any other Federal, State or Local environmental law,
ordinance, rule, or regulation. Tenant's obligations
under this Paragraph 57 shall survive the expiration or
earlier termination of the term of this lease.
58. Default.
(a) In addition to the rights and remedies
set forth in Paragraphs 17 and 18 hereof, Landlord
shall have the right to cancel this lease in the manner
therein provided in the event that (i) Tenant shall
have failed to pay any installment of Rent provided
herein within five (5) days after written notice and
demand for payment thereof or (ii) shall have defaulted
in payment of additional rent set forth herein for a
period of five (5) days after written notice and demand
for payment of same, or (iii) Tenant has not, within three
(3) days of notice from Landlord, commenced and diligently
prosecuted the cure of a default, the continuation of
which, is a threat to the safety or welfare of the
Building occupants or public.
(b) In any case in which the Rent or additional
rent is not paid within five (5) days of the day when
same is due, Tenant shall pay a late charge equal to 8-1/2
cents for each dollar so due, and in addition thereto.
Tenant further agrees that the late charge imposed is fair
and reasonable, complies with all laws, regulations and
statutes, and constitutes an agreement between Landlord
and Tenant as to the estimated compensation for costs and
administrative expenses incurred by Landlord due to the late
payment of rent by Tenant. Tenant further agrees that the
late charge assessed pursuant to this lease is not interest,
and the late charge does not create a borrower/lender or
borrower/creditor relationship between Landlord and Tenant.
The demand and collection of the aforesaid late charges shall
in no way be deemed a waiver of any and all remedies that
the Landlord may have under the terms of this lease by summary
proceedings or otherwise in the event of a default in
payment of rent or additional rent. Notwithstanding the
foregoing, the late charge set forth above shall not apply
with respect to the first late payment in any twelve (12)
month period by Tenant provided such late payment is
eventually made within thirty (30) days of notice that same
is overdue) and is not then otherwise in default under
this lease.
(c) In the event that Landlord shall bring
any proceeding against Tenant for recovery of money
damages, or for possession of the Demised Premises by
reason of nonpayment of Rent or additional rent, or if
Landlord shall otherwise engage an attorney in connection
with the enforcement of any provision of this Lease or,
after the expiration of all applicable notice and cure
periods, for nonperformance by Tenant of the terms and
conditions of this lease, or for breach of lease or if
Landlord shall successfully defend an action by Tenant
relating in any way to this Lease, and Landlord shall incur
costs and expenses by reason thereof or by reason of such
default, such charges, including reasonable legal fees,
shall be due and payable from Tenant as additional rent and
shall become immediately due and payable upon the incurrence
of same. Said amount may be included in the petition and
shall be deemed additional rent. This provision shall
expressly apply following the expiration or early termination
of this Lease where the Tenant, subtenant or assignee
continues in possession of the Demised Premises.
(d) Tenant agrees to give Landlord written
notice of any proposed change in the ownership of the
majority of the outstanding capital stock of Tenant or any
change in the ownership of the majority of the assets of
Tenant. Failure of Tenant to give the notice provided for
in the preceding sentence shall be deemed a non-curable
default by Tenant pursuant to this lease (that is, a default
which has already extended beyond the applicable grace
period, if any, following notice from Landlord), giving
Landlord the right, at its option, to cancel and terminate
this lease or to exercise any and all other remedies
available to Landlord hereunder or as shall exist at law
or in equity.
(e) At any time after this Lease is terminated
or the Term shall have expired and come to an end or
Landlord shall have re-entered upon the Demised Premises,
as the case may be, whether or not Landlord shall have
collected any monthly deficiencies pursuant to Paragraph 18
of the preprinted portion of this lease, Landlord, at its
sole discretion, shall be entitled to recover from Tenant,
and Tenant shall pay to Landlord, on demand, as and for
liquidated and agreed final damages, a sum equal to the
amount by which the Rent and additional rent reserved in
this lease for the period which otherwise would have
constituted the unexpired portion of the Term exceeds the
then fair and reasonable rental value of the Demised
Premises for the same period, both discounted to present
worth at the rate of four (4%) per cent per annum. If,
before presentation of proof of such liquidated damages
to any court, commission, or tribunal, the Demised Premises,
or any part thereof, shall have been relet by Landlord for
the period which otherwise would have constituted the
unexpired portion of the Demised Term, or any part thereof,
the amount of Rent and additional rent reserved upon such
reletting shall be deemed, prima facie, to be the fair and
reasonable rental value for the part or the whole of the
Demised Premises so relet during the term of the reletting.
(f) Nothing contained in this Lease shall be
construed as limiting or precluding the recovery by Landlord
against Tenant of any sums or damages to which, in addition
to the damages particularly provided above, Landlord may
lawfully be entitled by reason of any default hereunder on
the part of the Tenant. Anything in this Lease to the
contrary notwithstanding, during the continuation of any
default by Tenant, Tenant shall not be entitled to exercise
any rights or options, or to receive any funds or proceeds
being held, under or pursuant to this Lease.
(g) The specified remedies to which Landlord may
resort hereunder are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which
Landlord may lawfully be entitled, and Landlord may invoke
any remedy allowed at law or in equity as if specific remedies
were not herein provided for.
59. Insurance.
(a) Tenant shall obtain and keep in full force
and effect during the Term, at its own cost and expense,
(i) Commercial General Liability Insurance, on an occurrence
basis, such insurance to afford protection in an amount of
not less than One Million ($1,000,000) Dollars coverage for
bodily injury, death and property damage arising out of any
one occurrence and Two Million ($2,000,000) Dollars in
the aggregate (such limit to apply on a "per location basis"),
protecting Tenant as the insured and Landlord and its
construction affiliate and management company, as well as
any other parties whose names have been provided by Landlord
to Tenant from time to time, as additional insureds (in a
blanket endorsement form satisfactory to Landlord in its
reasonable discretion) against any and all claims for
personal injury, death or property damage, such insurance
to provide primary coverage without contribution from any
other insurance carried by or for the benefit of Landlord or
any other party named as an additional insured; Such insurance
shall include coverage for a blanket contractual liability
covering the indemnification requirements of this lease and
shall also include Products/Completed Operations (ii)
"All Risk" Property Insurance on Tenant?s property including
improvements and betterments made by or on the behalf of
Tenant, (and including, without limitation, Business
Interruption coverage providing for the payment of all
rent and additional rent payable under this lease for a
period of twelve (12) months including ?Extra Expense? and
Equipment Breakdown Insurance) insuring Tenant?s property and
equipment for the full insurable value thereof or replacement
cost value thereof, whichever is greater; (iii) Workers
Compensation Coverage and Employers Liability Coverage as
required by law; (iv) New York DBL Coverage, as required
by law; (v) Business Automobile Coverage in an amount of
not less than One Million ($1,000,000) Dollars combined
single limit per accident for bodily injury or property damage
(which policy form shall include coverage for "Any Auto"
which includes autos owned, hired and non-owned); (vi)
Umbrella Liability Coverage with limits of liability of
not less than Three Million ($3,000,000) Dollars per
occurrence and general aggregate per location; and (vii)
any other insurance required by law. All deductibles
shall be paid by Tenant and shall not exceed $10,000.00.
None of Tenant's insurance policies may provide for a self-
insured retention. Landlord may require Tenant to
increase the limits of the liability coverage described in
(i) above or obtain additional coverage, from time
to time, to that amount of insurance which in Landlord's
reasonable judgment is then being customarily
required by landlords for similar space in buildings in
the municipality in which the Building is located.
(b) All insurance required to be carried by
Tenant pursuant to the terms of this lease (i) shall
be written in form and substance reasonably satisfactory
to Landlord by a good and solvent insurance company of
recognized standing, admitted to do business in the State
of New York, which shall be reasonably satisfactory to
Landlord and shall be rated in Best's Insurance Guide or
any successor thereto as having a Best?s Rating of not
less than "A" and a "Financial Size Category" of not less
than "X", or if such ratings are not then in effect, the
generally accepted equivalent thereof or such other
financial rating as Landlord may at any time consider
appropriate; and (ii) shall contain a provision that no
act or omission of Tenant shall affect or limit the
obligations of the insurance company to pay the amount
of any loss sustained. Tenant shall procure, maintain
and place such insurance and pay all premiums and charges
therefor and upon failure to do so (after the expiration
of all applicable notice and cure periods) Landlord or
any other additional insured party referred to above may,
but shall not be obligated to, procure, maintain and
place such insurance or make such payments, and in such
event the Tenant agrees to pay the amount thereof, plus
interest at the maximum rate permitted by law, to Landlord
on demand and said sum shall be in each instance collectible
as additional rent on the first day of the month following
the date of payment by Landlord. Tenant shall cause to be
included in all such insurance policies a provision to the
effect that the same will be non-cancelable and that no
material change in coverage shall be made thereto unless
Landlord and all additional insureds referred to above shall
have received at least thirty (30) days prior written
notice thereof by certified mail, return receipt requested.
The original insurance policies or appropriate certificates
(on the form currently designated "Acord Form 27" or its
equivalent) shall be deposited with Landlord on or prior to
the commencement of the Term hereof. Any renewals,
replacements or endorsements thereto shall also be deposited
with Landlord to the end that said insurance shall be in
full force and effect during the Term.
(c) Tenant shall cause each insurance policy
carried by it and insuring its fixtures and contents, or
the betterments and improvements made by Tenant, against
loss by fire and other hazards to be written in a manner so
as to provide that the insurer waives all right of recovery
by way of subrogation against Landlord in connection with
any loss or damage covered by any such policy or policies.
Landlord shall not be liable to the Tenant for any loss or
damage caused by fire or other hazards.
(d) Landlord will cause each insurance policy
carried by Landlord and insuring the Building and Demised
Premises against loss by fire and other hazards to be written
in such a manner so as to provide that the insurer waives all
right of recovery by way of subrogation against Tenant in
connection with any loss or damage covered by such policy or
policies. Tenant shall not be liable to Landlord for
any loss or damage caused by fire or other hazard.
(e) If Tenant shall at any time fail to maintain
insurance as, and to the extent, required hereunder, Tenant
hereby releases Landlord from all loss or damage which could
have been covered by such insurance if Tenant had maintained
such insurance, including the deductible and/or uninsured
portion thereof. In no event, however, shall the foregoing
clause increase the liability Landlord may otherwise have
under this lease for such loss or damage.
(f) All insurance coverage shall be provided in
compliance with the requirements herein and shall contain
no non-standard, special, and/or unusual exclusions or
restrictive endorsements without the prior written
consent of Landlord.
(g) Tenant shall reimburse Landlord, as
additional rent (the ?Insurance Cost?), for Tenant's
Proportionate Share of all premiums for insurance carried
by Landlord on or with respect to the Building (including,
without limitation, Landlord's All-risk property insurance
upon the Building and Real Property, as well as environmental,
Commercial General Liability, Umbrella/Excess Liability, Auto
Liability and workman?s compensation insurance). Landlord
and Tenant stipulate and agree that Tenant's Proportionate
Share of the Insurance Cost shall be initially $331.63 per
month (the "Base Insurance Charge"). The parties hereby
agree that the Base Insurance Charge is included in the rent
set forth in Paragraph 43 hereof. In the event that Tenant's
Proportionate Share of the Insurance Cost increases over
the Base Insurance Charge at any time during the term of this
lease, Landlord shall have the right to bill such increase
to Tenant monthly or otherwise and Tenant shall pay such
increase as additional rent within ten (10) days of
Landlord's demand therefor.
60. Broker. Each of Landlord and Tenant represents
that this lease was brought about by Corporate
Commercial Realty LLC (the "Broker") as broker and all
negotiations with respect to this lease were conducted
exclusively with the Broker. Each of Landlord and Tenant
agrees that if any claim is made for commissions by any
other broker through or on account of any acts of Landlord
or Tenant, such party will indemnify, defend and hold the
other party free and harmless from any and all liabilities
and expenses in connection therewith, including such other
party's reasonable attorney?s fees. With respect to the
foregoing, in the event Tenant elects to use any broker
(the "New Broker") other than or together with the
Broker in connection with the extension of this lease
(whether by way of a renewal option or a separate extension
agreement), Tenant shall be responsible for (and indemnify
Landlord against) the commission claimed by the New Broker
and any liabilities and expenses, including reasonable attorney
fees, incurred by Landlord with respect thereto. Landlord
shall be responsible for and shall pay Broker pursuant to a
separate written agreement between Landlord and Broker on a
form issued by Landlord?s office.
61. Conditions of Landlord?s Liability. Landlord and
Landlord's agents and employees shall not be liable for, and
Tenant waives all claims for, loss or damage to Tenant's
business or damage to person or property sustained by Tenant
resulting from any accident or occurrence (unless caused by or
resulting from the negligence of Landlord or Landlord's agents,
employees, contractors or representatives other than accidents
or occurrences against which Tenant is insured and except to
the extent Tenant is contributorily negligent) in or upon the
Demised Premises or the Building, including, but not limited to,
claims for damage resulting from: (i) any equipment or
appurtenances becoming out of repair; (ii) injury done or
occasioned by wind; (iii) any defect in or failure of plumbing,
heating or air conditioning equipment, electric wiring or
installation thereof, gas, water, or steam pipes, stairs,
porches, railings or walks; (iv) broken glass; (v) the
backing up of any sewer pipe or downspout; (vi) the bursting,
leaking or running of any tank, tub, washstand, water closet,
waste pipe, drain or other pipe or tank in, upon or about
the Building or the Demised Premises; (vii) the escape of
steam or hot water; (viii) water, snow or ice being upon or
coming through the roof, skylight, trapdoor, stairs, doorways,
show windows, walks or any other place upon or near the
Building or the Demised Premises or otherwise; (ix) the falling
of any fixture, plaster, tile or stucco; and (x) any act,
omission or negligence of other tenants, licensees or of any
other persons or occupants of the Building or of adjoining or
contiguous buildings or of owners of adjacent or contiguous
property. Whenever Tenant shall claim under this lease that
Landlord has unreasonably withheld or delayed its consent to
some request of Tenant for which Landlord is specifically
obligated to be reasonable under this lease, Tenant shall
have no claim for damages by reason of such alleged
withholding or delay, and Tenant's sole remedy thereof shall
be a right to obtain specific performance or injunction but
in no event with recovery of damages.
62. Partnership Tenant. If Tenant is a partnership (or
is comprised of two (2) or more persons, individually or as
co-partners of a partnership) or if Tenant?s interest in this
lease shall be assigned to a partnership (or to two (2) or
more persons, individually or as co-partners of a partnership)
pursuant to Paragraph 54 (any such partnership and such persons
are referred to in this Paragraph as "Partnership Tenant"),
the following provisions of this Section shall apply to such
Partnership Tenant: (a) the liability of each of the parties
comprising Partnership Tenant shall be joint and several, and
(b) each of the parties comprising Partnership Tenant hereby
consents in advance to, and agrees to be bound by, any
modifications of this lease which may hereafter be made, and
by any notices, demands, requests or other communications
which may hereafter be given, by Partnership Tenant or by any
of the parties comprising Partnership Tenant, and (c) any
bills, statements, notices, demands, requests and other
communications given or rendered to Partnership Tenant or
to any of the parties comprising Partnership Tenant shall be
deemed given or rendered to Partnership Tenant and to all
such parties and shall be binding upon Partnership Tenant
and all such parties, and (d) if Partnership Tenant shall
admit new partners, all of such new partners shall, by their
admission to Partnership Tenant, be deemed to have assumed
performance of all of the terms, covenants and conditions
of this lease on Tenant?s part to be observed and performed,
and (e) Partnership Tenant shall give prompt notice to
Landlord of the admission of any such new partners, and
upon demand of Landlord, shall cause each such new partner
to execute and deliver to Landlord an agreement in form
satisfactory to Landlord, wherein each such new partner
shall assume performance of all of the terms, covenants
and conditions of this lease on Tenant?s part to be observed
and performed (but neither Landlord?s failure to request
any such agreement nor the failure of any such new partner
to execute or deliver any such agreement to Landlord shall
vitiate the provisions of subdivision (d) of this Paragraph).
63. Miscellaneous.
(a) This lease shall not be recorded. No
memorandum of this lease shall be recorded without the
express written consent of Landlord.
(b) The invalidity or unenforceability of any
provision of this lease shall in no way affect the validity
or enforceability of any of the other provisions contained in
this lease. Landlord and Tenant understand, agree and
acknowledge that this lease has been freely negotiated by
both parties and that, in the event of any controversy, dispute,
or contest over the meaning, interpretation, validity, or
enforceability of this lease or any of its terms and conditions,
there shall be no inference, presumption or conclusion drawn
whatsoever against either party by virtue of that party having
drafted this lease or any portion hereof.
(c) There are no oral agreements between the
parties hereto affecting this lease and this lease supersedes
and cancels any and all previous representations, negotiations,
arrangements and understandings, if any, between the parties
hereto with respect to the subject matter hereof, and shall not
be used to interpret or construe this lease.
(d) Wherever in this lease there is any conflict
between the provisions of any of the preprinted portions of the
lease and the non-preprinted portions of the lease (e.g.
typewritten or handwritten changes to the pre-printed form and
the provisions of this rider), the non-preprinted provisions
shall be deemed to supersede the preprinted provisions.
(e) Any references in the printed portions of this
lease to the City of New York and the Administrative Code of
the City of New York are deemed deleted, and where applicable
the town in which the Demised Premises is located and other
local governmental authorities and their ordinances shall
be substituted in lieu thereof.
(f) This lease may not be changed, modified or
discharged, in whole or in part, orally, and no executory
agreement shall be effective to change, modify or discharge,
in whole or in part, this lease or any obligations under this
lease, unless such agreement is set forth in a written
instrument executed by the party against whom enforcement of
the change, modification or discharge is sought.
(g) The mailing or delivery of this lease by the
Landlord to Tenant, its agent or attorney, shall not be
deemed an offer nor shall any obligation or liability be
created on the part of Landlord or Tenant until such time
as this lease, duly executed by the Landlord and Tenant, is
delivered to each other or their agents or attorneys.
(h) Tenant shall give notice to Landlord,
promptly after Tenant learns thereof, of (i) any accident
in or about the Demised Premises, (ii) all fires and other
casualties within the Demised Premises, (iii) all damages to
or defects in the Demised Premises, including the fixtures,
equipment and appurtenances thereof for the repair of which
Landlord might be responsible, and (iv) all damage to or
defects in any parts or appurtenances of the Building's
sanitary, electrical, heating, ventilating, air conditioning,
elevator and other systems located in or passing through the
Demised Premises or any part thereof.
(i) Landlord agrees to install, repair and
maintain, at its sole cost and expense, Landlord's Building
standard identification sign for Tenant at the main entrance
to the Building. Any changes to such sign shall be at
Tenant's sole cost and expense.
(j) In the event that Tenant is not an individual,
Tenant represents that the officer or officers, partner or
partners, member or members or manager or managers executing
this lease have the requisite authority to do so.
(k) Tenant hereby acknowledges that Landlord
makes no representations as to the compatibility of the
Building systems with Tenant's equipment.
(l) Tenant shall indemnify, hold harmless and
defend Landlord, its affiliates, managing agents,
construction company, subsidiaries, directors, officers,
employees and agents from and against any and all liabilities,
claims, demands, damages, costs, expenses (including reasonable
attorney fees) suits, judgments whether actual or alleged,
including such for bodily injury or wrongful death to any
person (including tenant employees and invitees) and property
damage to any property, arising out of or in connection with
the operations or business of the Tenant at the demised
premises or real property; the acts or omissions of the
Tenant, its sub-tenants, its employees, invitees, contractors
or agents; or any breach of this lease or improper conduct.
Upon notification by the Landlord of an indemnifiable event,
Tenant at its own expense shall arrange for Landlord's
defense (at Landlord?s option) and confirm indemnification.
Tenants will still be responsible to fulfill its obligations
under this Article in the event Tenant or Tenants insurance
company does not accept a tender of claim by the Landlord.
These indemnification provisions are to continue after
lease expiration and are not limited by the amount of
available insurance in place.
(m) This lease shall be construed in accordance
with and governed by the internal laws (without reference
to choice or conflict of laws) of the State of New York.
In respect of any dispute between the parties regarding the
subject matter hereof, the parties hereby irrevocably
consent and submit to in personam jurisdiction in the
courts of New York, located in the county in which the
Building is located, including the United States courts
located in said county, and to all proceedings in such courts.
The parties hereby agree that such courts shall be the venue
and exclusive and proper forum in which to adjudicate any case
or controversy arising either, directly or indirectly, under
or in connection with this lease and that they will not contest
or challenge the jurisdiction or venue of these courts.
(n) Notwithstanding anything contained to the
contrary in this lease, Tenant hereby waives any right to
recover against Landlord any indirect, consequential, special,
punitive or incidental damages against Landlord in any cause
of action, proceeding or claim arising out of, or in connection
with, this lease.
64. Tenant's Current Premises. Landlord hereby agrees
that, in the event that the Commencement Date does not occur
on February 1, 2015, provided that Tenant is not then in monetary
default under the terms of the 70 Orville Lease (as hereinafter
defined), Tenant shall be permitted to continue to occupy its
current premises at 70 Orville Drive, Bohemia, New York (the
"70 Orville Premises") from the period commencing on February 1,
2015 and continuing through and including the Commencement Date.
During any such period, Tenant shall continue to pay to Landlord
basic rent at the rate set forth in that certain Agreement of
Lease dated as of October __, 1989 between Landlord's
predecessor-in-interest, as landlord, and Tenant, as tenant,
for certain premises at the building owned by Landlord's affiliate
and located at 70 Orville Drive, Bohemia, New York (as amended,
the "70 Orville Lease") as of the expiration of the 70 Orville
Lease (pro rated for any partial month), as well as any amounts
of additional rent currently payable under the 70 Orville Lease.
65. Awning. Notwithstanding anything to the contrary
contained herein, upon prior written consent from Landlord,
which consent shall not be unreasonably withheld, conditioned
or delayed, Tenant shall be permitted, to the extent permitted
under applicable law and provided that Tenant obtains all
necessary approvals and permits for same, to place an awning
over the rear entrance loading dock to protect against
inclement weather. The size, design and exact location of
such awning shall be subject to the approval of Landlord,
which approval shall not be unreasonably withheld, conditioned
or delayed. Any work performed by Tenant or Tenant?s contractor
with respect to any such awning shall be performed in strict
accordance with Article 3 and Paragraph 45 hereof, provided
that there shall be no Landlord construction affiliate fee
due and payable in connection therewith. Landlord makes no
representations that Tenant will receive any necessary
approvals and/or permits for such awning and Tenant?s failure
to obtain same shall not affect the validity of this lease.
IN WITNESS WHEREOF, Landlord and Tenant have respectively
signed this lease as of the day and year first above written.
Landlord: 80 ORVILLE DRIVE ASSOCIATES LLC
By: Rechler Equity I LLC, its managing member
By: Rechler Equity MM I LLC, its managing member
By: Rechler Equity LLC, its managing member
By: /s/ Mitchell Rechler
________________________
Name:
Title:
Tenant: SCIENTIFIC INDUSTRIES, INC.
By: /S/Helena R. Santos
_______________________
Name: Helena R. Santos
Title: President
SCHEDULE A
PERMITTED MATERIALS
"Permitted Materials" means those normally utilized in an
office environment, including, without limitation, Hazardous
Materials which may be contained in cleaning solutions or
products utilized in photostatic copying and other office
machines in commercially reasonable amounts.
EXHIBIT A
RENTAL PLAN DATED AS OF JULY __, 2014
