\n 1-5 $160,000.00 $ 13,333.33
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n The first “Lease Year” of this Lease shall commence the
\ncommencement date of this Lease (the “Commencement Date”),which shall be the
\ndate on which the Landlord delivers possession of the Demised Premises to Tenant
\nwith Landlord’s Work substantially complete, and shall end with the expiration
\nof the next succeeding twelve (12) months, plus the number of days, if any,
\nrequired to have the period end at the expiration of the calendar month, and
\neach succeeding “Lease Year” shall run concurrently with each succeeding period
\nof twelve (12) calendar months.<\/p>\n
Landlord agrees to use commercially reasonable efforts to
\ndeliver possession of the Demised Premises to Tenant by March 1, 2000 (the
\n“Delivery Date”), but Landlord shall not be liable or responsible for any
\nclaims, damages or liabilities by reason of any delay in delivery of possession
\nof the Demised Premises to Tenant, nor shall the obligations of Tenant hereunder
\nbe affected. Provided, however, that if Landlord is unable to deliver possession
\nof the Demised Premises to Tenant by the Delivery Date, then in such event
\nTenant shall have the right to cancel this Lease upon delivering a ten (10)
\nwritten notice to Landlord given by certified mail, return receipt requested
\n(the “Notice of Cancellation”) unless the Delivery Date shall occur within such
\n10-day period, in which case the Notice of Cancellation shall be deemed
\nwithdrawn, null and void and of no force and effect. If the Delivery Date does
\nnot occur within such 10-day period, the Lease shall be terminated and the
\nparties shall have no further rights and obligations under the Lease.
\nNotwithstanding anything to the contrary contained herein, the parties agree
\nthat Tenant’s right to cancel as aforesaid shall only be effective on the
\ncondition that this Lease was executed and delivered by Tenant to Landlord
\n(together with the payment by Tenant to Landlord of the Minimum Rent and
\nSecurity Deposit required hereunder) on or prior to December 1, 1999.<\/p>\n
Tenant shall, within five (5) days of written request made by
\nLandlord to Tenant, execute the certificate annexed hereto as Exhibit “C”
\ncertifying the exact date of substantial completion by Landlord of Landlord’s
\nWork in the Demised Premises (the “Landlord’s Work Certificate”) and such date
\nshall be deemed conclusive for purposes of this Article. The failure by Tenant
\nto so execute the Landlord’s Work Certificate in good faith by the date so
\nspecified above shall constitute a material default by Tenant under this Lease.<\/p>\n
Tenant’s obligation to pay Minimum Rent shall commence thirty
\n(30) calendar days after the Commencement Date (the “Rent Commencement Date”).<\/p>\n
The expiration date of this Lease and the end of the term of
\nthis Lease shall be five (5) years following the last day of the month in which
\nthe day next preceding the Rein Commencement Date occurs (the “Expiration
\nDate”).<\/p>\n
Minimum Rent shall be payable in advance, on the first (1st)
\nday of each calendar month.<\/p>\n
(B) “Additional Rein”, consisting of all such other sums of
\nmoney as shall become due from and payable by Tenant to Landlord or any other
\nparty hereunder (for default in payment of which Landlord shall have the same
\nremedies as a default in payment of Minimum Rent).<\/p>\n
(C) The obligation of Tenant to pay all sums of Additional
\nRent (including, without limitation, Electricity charges as are described in
\nArticle 41 of this Lease) to Landlord or others shall commence on the
\nCommencement Date of the Lease and there shall be no abatement whatsoever of the
\nobligation of Tenant to pay all sums of Additional Rent during any period or
\npart of any Lease Year during the term of the Lease.<\/p>\n
40. TENANT’S INSTALLATIONS: Except for that certain work which Landlord has
\nagreed to perform in the Demised Premises as expressly described in Exhibit “B”
\nannexed hereto and made a part hereof (collectively, the “Landlord’s Work”), all
\nother work necessary or desirable to make the Demised Premises suitable for
\nTenant’s use and occupancy shall be performed by Tenant at Tenant’s own cost and
\nexpense (hereinafter called “Tenant’s Work”). Tenant’s Work to be performed by
\nTenant in the Demised Premises shall be subject to the following conditions:<\/p>\n
(A) Tenant shall comply with all of the laws, orders, roles
\nand regulations of all governmental authorities, and of the fire insurance
\nrating organization having jurisdiction thereof, and the local board of fire
\nunderwriters, or any similar body, and Tenant shall procure and pay for, so far
\nas the same may be required, all governmental permits and authorizations;<\/p>\n
(B) Prior to commencing Tenant’s Work, all plans and
\nspecifications therefor shall be submitted to Landlord for Landlord’s prior
\nwritten approval said approval not to be unreasonably withheld as to
\nnonstructural work and shall be granted or denied within fifteen (15) business
\ndays after submission of all final plans and drawings to Landlord;<\/p>\n
2<\/p>\n
(C) Tenant’s Work shall be prosecuted (i) with reasonable
\ndispatch, (ii) in accordance with the plans and specifications submitted to, and
\napproved in writing by, Landlord pursuant to subparagraph (B) hereof and (iii)
\nonly with the use of new materials and supplies of quality equal to or greater
\nthan used by Landlord;<\/p>\n
(D) Tenant shall make all necessary payments required so that
\nthe Demised Premises and Building shall upon completion of Tenant’s Work be free
\nof liens for labor and materials supplied in connection with Tenant’s Work;<\/p>\n
(E) Prior to commencing Tenant’s Work, Tenant shall at its own
\ncost and expense deliver to Landlord an endorsement of its policy of
\ncomprehensive general liability insurance referred to in Article 46 of this
\nLease, covering the risk during the course of performance of Tenant’s Work,
\ntogether with proof of payment of such endorsement, which policy as endorsed
\nshall protect Landlord in the same amounts against any claims or liability
\narising out of Tenant’s Work, and Tenant or Tenant’s contractors shall obtain
\nworkmen’s compensation insurance to cover all persons engaged in Tenant’s Work;<\/p>\n
(F) Tenant guarantees to Landlord that Tenant’s Work shall be
\npromptly completed and paid for, and upon completion the Demised Premises and
\nthe Building shall be free and clear of all liens, encumbrances, chattel
\nmortgages, conditional bills of sale and other charges, and Tenant’s Work shall
\nbe substantially completed in accordance with the plans and specifications
\napproved by Landlord; and<\/p>\n
(G) Notwithstanding anything herein contained to the contrary,
\nTenant shall make all repairs to the Demised Premises necessitated by Tenant’s
\nWork permitted hereunder, and shall keep and maintain in good order and
\ncondition all of the installations in connection with Tenant’s Work, and shall
\nmake all necessary replacements thereto.<\/p>\n
(H) All of Tenant’s Work shall be done in such a manner so as
\nnot to materially interfere with, delay, or impose any additional expense upon
\nLandlord in the maintenance or operation of the Building. In no event shall
\nLandlord be required to consent to any of Tenant’s Work which would physically
\naffect any part of the Building outside of the Demised Premises or would, in
\nLandlord’s sole judgment, adversely affect the proper functioning of any of the
\nmechanical, electrical, sanitary or other systems of the Building. The approval
\nby Landlord of any of Tenant’s plans and specifications shall not constitute an
\nassumption of any liability on the part of the Landlord for their accuracy or
\ntheir conformity which applicable law, and Tenant shall be solely responsible
\ntherefor. Approval by Landlord of any Tenant’s plans and specifications shall
\nnot constitute a waiver by Landlord of the right to thereafter require Tenant to
\namend same to provide for omissions therein later discovered by Landlord.<\/p>\n
41. ELECTRICITY:<\/p>\n
(A) For so long as Tenant shall not be in default hereunder
\nbeyond the expiration of applicable notice and cure periods expressly set forth
\nin the Lease, Landlord will provide electricity to Tenant on a “rent inclusion”
\nbasis. The Minimum Rent set forth in Article 39 does not presently include any
\ncharges for electricity usage. The Minimum Rent regularly paid by Tenant in
\nArticle 39 of this Lease is herein increased by the sum of $2.75 per rentable
\nsquare foot of the Demised Premises ($11,000.00 per annum payable monthly,
\ncommencing on the Commencement Date, on the first day of every month during the
\nterm of this Lease at the rate of $916.67 per month) as the cost for Tenant’s
\nusage of electricity. The $2.75 per square foot rate is the estimate of
\nproviding Tenant with electricity to service the needs of a office tenant
\nutilizing equipment as set forth in Article 41 (B) hereof. Landlord shall have
\nthe right to conduct a survey of Tenants actual electrical usage and increase
\nthe electric charge if the survey indicates the Tenant’s usage of electricity
\nexceeds the cost so $2.75 per square foot.<\/p>\n
(B) Landlord shall not in any way be liable or responsible to
\nTenant for any loss or damage or expense which Tenant may sustain or incur if
\neither the quantity or character of electric service is changed or is no longer
\navailable or suitable for Tenant’s requirements. Tenant’s use of electric
\ncurrent in the Demised Premises shall not at any time exceed the capacity of any
\nof the<\/p>\n
3<\/p>\n
electrical conductors and facilities in or otherwise serving the Demised
\nPremises. In order to insure that such capacity is not exceeded and to avert any
\npossible adverse effect upon the Building’s electric service, Tenant shall not,
\nwithout Landlord’s prior written consent in each instance, connect any fixtures,
\nappliances or equipment (other than a reasonable number of table or floor lamps,
\ntypewriters, word processors, small computers, photocopy machines and similar
\nsmall office machines using comparable electric current) to the Building’s
\nelectric distribution system nor make any alteration or addition to the electric
\nsystem of the Demised Premises. Should Landlord grant such consent, all
\nadditional risers or other equipment required therefor shall be provided by
\nLandlord upon notice to Tenant, and all costs and expenses in connection
\ntherewith, including, without limitation, those for filing and supervision,
\nshall be paid by Tenant. As a condition to granting such consent, Landlord may
\nrequire Tenant to agree to an increase in the Additional Rent by an amount which
\nwill reflect the value to Tenant of the additional service to be furnished by
\nLandlord, to wit: the potential additional electrical current to be made
\navailable to Tenant based upon the estimated initial total capacity of such
\nadditional risers or other equipment. If Landlord and Tenant cannot agree on the
\namount of such Additional Rent increase, the same shall be determined by a
\nreputable electrical consultant, to be selected by Landlord and paid equally by
\nboth parties. The parties shall then execute an agreement prepared by Landlord
\namending this Lease and setting forth the new Additional Rent resulting from
\nsuch increases and confirming the effective date thereof, but such increase
\nshall be effective from such date even if such agreement is not executed.<\/p>\n
(C) If Tenant shall default under this Lease beyond any
\napplicable notice and cure period, Landlord reserves the right, in addition to
\nany other remedies available under this Lease or at law, to cease providing
\nelectricity to the Demised premises until such default shall be cured.<\/p>\n
42. TAX ESCALATION:<\/p>\n
(A) As used in this Lease:<\/p>\n
(i) “Taxes” shall mean the real estate taxes and
\nassessments and special assessments imposed upon the Building and\/or the land on
\nwhich the Building is situated by any governmental bodies or authorities (the
\n“Land”) excluding income taxes to Landlord. If at any time during the term of
\nthis Lease the methods of taxation prevailing at the commencement of the term
\nhereof shall be altered so that in lieu of, or as an addition to or as a
\nsubstitute for the whole or any part of the taxes, assessments, levies,
\nimpositions or charges now levied, assessed or imposed on real estate and the
\nimprovements thereof, there shall be levied, assessed and imposed (a) a tax,
\nassessment, levy or otherwise on the rents received therefrom, or (b) a license
\nfee measured by the rent payable by Tenant to Landlord, or (c) any other such
\nadditional or substitute tax, assessment, levy, imposition or charge, then all
\nsuch taxes, assessments, levies, impositions or charges or the part thereof so
\nmeasured or based shall be deemed to be included within the term “Taxes” for the
\npurpose hereof.<\/p>\n
(ii) “Base Tax” shall mean Taxes, as finally
\ndetermined, calculated of the average of the fiscal years of (i) July 1, 1999
\nthrough June 30, 2000 and (ii) July 1, 2000 through June 30, 2001.<\/p>\n
(iii) “Tax Year” shall mean the fiscal year
\ncommencing on July 1 and ending on June 30 (or such other period as hereinafter
\nmay be duly adopted by the City of New York as its Fiscal Year for real estate
\ntax purposes).<\/p>\n
(iv) “Tenant’s Share” shall be one and fifty-six
\nhundredths percent (1.56 %).<\/p>\n
(B) (i) If the Taxes for any Tax Year shall be more than the
\nBase Tax, Tenant shall pay as Additional Rent for such Tax Year an amount equal
\nto Tenant’s Share of the amount by which the Taxes for such Tax Year are greater
\nthan the Base Tax (the amount payable by Tenant is hereinafter called the “Tax
\nPayment”). The Tax Payment shall be prorated, if necessary, to correspond with
\nthat portion of a Tax Year occurring within the term of this Lease. At
\nLandlord’s sole option, the Tax Payment shall either (1) be payable by Tenant
\nwithin thirty (30) days after receipt of a written demand from Landlord therefor
\nor (2) shall be payable by Tenant to Landlord in equal monthly installments on
\nthe first day of each month in an amount as reasonably estimated<\/p>\n
4<\/p>\n
by the Landlord, and shall in any event be adjusted from time to time with such
\nadjusted amount being remitted by Tenant to Landlord upon Landlord’s written
\ndemand therefor.<\/p>\n
(ii) In the event the Base Tax is reduced as a result
\nof an appropriate proceeding, Landlord shall have the right to adjust the amount
\nof Tax Payment due from Tenant for any Tax Year in which Tenant is or was
\nobligated to pay a Tax Payment hereunder, and Tenant agrees to pay the amount of
\nsaid adjustment on the next rental installment day immediately following receipt
\nof a rent statement from Landlord setting forth the amount of said adjustment.
\nThe parties acknowledge that in no event shall the Minimum Rent ever be reduced
\nas a result of a tax certiorari proceeding or as a result of any reduction in
\nTaxes or Base Taxes. However, if the Base Tax is reduced at any time during the
\nterm of the Lease, Landlord will adjust the amount payable by Tenant in
\nproportion to said reduction.<\/p>\n
(C) Only Landlord shall be eligible to institute tax reduction
\nor other proceedings to reduce the assessed valuation of the Land and the
\nBuilding. Should Landlord be successful in any such reduction proceedings and
\nobtain a rebate for periods during which Tenant has paid its share of increases,
\nLandlord shall after deducting its actual out of pocket expenses, including
\nreasonable attorneys’ fees and disbursements in connection therewith, return
\nTenant’s Share of such rebate to Tenant.<\/p>\n
(D) With respect to any period at the expiration of the term
\nof this Lease which shall constitute a partial tax year, Landlord’s statement
\nshall apportion the amount of the Additional Rent due hereunder. The obligation
\nof Tenant in respect to such Additional Rent applicable for the last year of the
\nterm of this Lease or part thereof shall survive the expiration of the term of
\nthis Lease.<\/p>\n
43. EXPENSE ESCALATION:<\/p>\n
(A) As used in this Lease:<\/p>\n
(i) “Wage Rate” shall mean the minimum regular hourly
\nrate of wages including, without limitation, adjustments of every kind, but
\nspecifically excluding fringe benefits, in effect as of January 1st (of each
\nyear (whether paid by Landlord or any contractor employed by Landlord) computed
\nas paid over a forty hour week to Porters in Class A office buildings pursuant
\nto an Agreement between The Realty Advisory Board on Labor Relations,
\nIncorporated, or any successor thereto, and Local 32B of the Building Service
\nEmployees International Union, AFL-CIO, or any successor thereto; and provided,
\nhowever, that if there is no such agreement in effect prescribing a wage rate
\nfor Porters, computations and payments shall thereupon be made upon the basis of
\nthe regular hourly wage rate actually payable to Porters by Landlord or by
\nLandlord’s service contractors over a forty hour week, in effect as of January
\n1st of each year, and provided, however, that if in any year during the term the
\nregular employment of Porters shall occur on days or during hours which overtime
\nor other premium pay rates are in effect pursuant to such Agreement, then the
\nterm “hourly rate of wages” as used herein shall be deemed to mean the average
\nhourly rate for the hours in a calendar week during which Porters are regularly
\nemployed (e.g., if pursuant to an agreement between Realty Advisory Board and
\nthe Local the regular employment of Porters for forty hours during a calendar
\nweek is at a regular hourly wage rate of $3.00 for the first thirty hours, and
\npremium or overtime hourly wage rate of $4.50 for the remaining ten hours, then
\nthe hourly rate of wages under this Article during such period shall be the
\ntotal weekly rate of $135.00 divided by the total number of regular hours of
\nemployment, forty or $3.375).<\/p>\n
(ii) “Base Wage Rate” shall mean the Wage Rate in
\neffect for calendar year 2000.<\/p>\n
(iii) The term “Porters” shall mean that
\nclassification of non-supervisory employees employed in and about the Building
\nwho devote a major portion of their time to general cleaning, maintenance and
\nmiscellaneous services essentially of a non-technical and non-mechanical nature
\nand are the type of employees who are presently included in the classification
\nof “Class A-Others” in the Commercial Building Agreement between the Realty
\nAdvisory Board and Local 32B.<\/p>\n
5<\/p>\n
(iv) “Multiplication Factor” shall mean the product
\nobtained by multiplying the area of the premises (which the parties have agreed
\nshall be 4,000 square feet for the purposes of this Article) by one (1).<\/p>\n
(B) If the Wage Rate for any calendar year during the Term
\nshall be increased above the Base Wage Rate, then Tenant shall pay, as
\nadditional rent, an amount (the “Wage Increase Charge”) equal to the product
\nobtained by multiplying the Multiplication Factor by the number of cents
\n(including any fraction of a cent) by which the Wage Rate is greater than the
\nBase Wage Rate, such payment to be made in equal monthly installments commencing
\nwith the first monthly installments of fixed rent falling due on or after the
\neffective date of such increase in Wage Rate (payable retroactive from said
\neffective date) and continuing thereafter until a new adjustment shall have
\nbecome effective in accordance with the provisions of this Article. Landlord
\nshall give Tenant notice of each change in Wage Rate that will be effective to
\ncreate or change Tenant’s obligation to pay the Wage Increase Charge pursuant to
\nthe provisions of this Article, which notice shall contain Landlord’s
\ncalculation of the Wage Increase Charge payable resulting from such increase in
\nWage Rate. The Wage Increase Charge shall be prorated, if necessary, to
\ncorrespond with that portion of a calendar year occurring within the Term. Such
\nnotice shall be served in accordance with the terms of this Lease and shall be
\naccompanied by such information which shall be reasonable necessary for Tenant
\nto evaluate the accuracy thereof.<\/p>\n
(C) Every notice given by Landlord pursuant to Paragraph B of
\nthis Article shall be conclusive and binding upon Tenant unless (i) within
\nthirty (30) days after the receipt of such notice, Tenant shall notify Landlord
\nthat it disputes the correctness of the notice, specifying the particular
\nrespects in which the notice is claimed to be incorrect and (ii) if such dispute
\nshall not have been settled by agreement, shall submit the dispute to
\narbitration, within ninety (90) days after receipt of the notice. Pending the
\ndetermination of such dispute, Tenant shall pay the Wage Increase Charge in
\naccordance with Landlord’s notice without prejudice to Tenant’s position of such
\ndispute. In the event such dispute shall be determined in Tenant’s favor,
\nLandlord shall, on demand, pay Tenant the amount so overpaid by Tenant.<\/p>\n
(D) The “Wage Rate” is intended to be a substitute comparative
\nindex of economic costs and inflationary pressures and does not necessarily
\nreflect the actual costs of Wages or other expenses of operating the Building.
\nThe Wage Rate shall be used whether or not the building is a Class A office
\nbuilding, whether or not porters are employed in the building and without regard
\nto whether such employees or members of the union referred to in Paragraph A of
\nthis Article.<\/p>\n
44. WAIVER OF SUBROGATION: Each party hereby releases the other party (which
\nterm as used in this Article includes the employees, agents, officers and
\ndirectors of the other party) from all liability, whether for negligence or
\notherwise, in connection with loss covered by any fire and\/or extended coverage
\ninsurance policies, which the releasor carries with respect to the Demised
\nPremises, or any interest or property therein or thereon (whether or not such
\ninsurance is required to be carried under this lease), but only to the extent
\nthat such loss is collected under said fire and\/or extended coverage insurance
\npolicies. Such release is also conditioned upon the inclusion in the policy or
\npolicies of a provision whereby any such release shall not adversely affect said
\npolicies, or prejudice any right of the releasor to recover thereunder. Each
\nparty agrees that its insurance policies aforesaid will include such a provision
\nso long as the same shall be obtainable without extra cost, or if extra cost
\nshall be charged therefor, so long as the party for whose benefit the clause or
\nendorsement is obtained shall pay such extra cost. If extra cost shall be
\nchargeable therefor, each party shall advise the other thereof of the amount of
\nthe extra cost, and the other party at its election, may pay the same, but shall
\nnot be obligated to do so.<\/p>\n
45. COMPLIANCE WITH LAWS: Supplementing the provisions of Article 6 hereof,
\nTenant shall give prompt notice to Landlord of any notice it receives of the
\nviolation of any law or requirement of any public authority with respect to the
\nDemised Premises or the use or occupation thereof. Tenant shall promptly comply
\nwith all present and future laws, orders and regulations of all state, federal,
\nmunicipal and local governments, departments, commissions and boards or any
\ndirection of any public officer pursuant to law and all orders, roles and
\nregulations of the New York Board of Fire Underwriters or any similar body
\narising out of Tenant’s use of the Demised Premises which shall impose any
\nviolation, order or duty upon Landlord or Tenant with respect to Tenant’s use or<\/p>\n
6<\/p>\n
manner of use of the Demised Premises (in which event Tenant shall effect such
\ncompliance at its sole cost and expense) or the Building (in which event,
\nnotwithstanding anything herein to the contrary, Landlord shall effect such
\ncompliance but Tenant shall promptly pay to Landlord Tenant’s Share, as defined
\nin Paragraph 42(A) (iv), of the cost thereof).<\/p>\n
46. INDEMNITY-LIABILITY INSURANCE:<\/p>\n
(A) Tenant covenants and agrees to indemnify and save Landlord
\nharmless from and against any and all claims arising during the term of this
\nlease for damages or injuries to goods, wares, merchandise and property and\/or
\nfor any personal injury or loss of life in, upon or about the Demised Premises
\nor on the sidewalks adjoining the Demised Premises, except such claims as may be
\nthe result of the negligence of Landlord, its agents, employees or contractors.<\/p>\n
(B) Tenant further covenants and agrees to indemnify Landlord
\nagainst the cost of any increase in Landlord’s insurance rates resulting from
\nTenant’s use of the Demised Premises. Tenant shall reimburse Landlord for any
\nsuch increase within fifteen (15) days after Landlord bills Tenant therefor.<\/p>\n
(C) Tenant covenants to provide on or before the commencement
\nof the term hereof and to keep in force during the term hereof for the benefit
\nof Landlord and Tenant a comprehensive policy of liability insurance protecting
\nLandlord and Tenant against any liability whatsoever occasioned by accident on
\nor about the Demised Premises or any appurtenances thereto. Such policy is to be
\nwritten by good and solvent insurance companies satisfactory to Landlord, and
\nthe amounts of liability thereunder shall not be less than the amount of
\n$2,000,000 in respect of any one person, in the amount of $5,000,000 in respect
\nof any one accident, and in the amount of $2,000,000.00 in respect of property
\ndamage. Prior to the time such insurance is first required to be carried by
\nTenant, and thereafter at least fifteen (15) days prior to the expiration of any
\nsuch policy, Tenant agrees to deliver to Landlord either a duplicate original of
\nthe aforesaid policy or a certificate evidencing such insurance, provided said
\ncertificate contains an endorsement that such insurance may not be canceled or
\nmodified except upon ten (10) days written notice to Landlord, together with
\nevidence of payment for the policy. Tenant’s failure to provide and keep in
\nforce the aforementioned insurance shall be regarded as a material default
\nhereunder, entitling Landlord to exercise any or all of the remedies as provided
\nin this Lease in the event of Tenant’s default. Landlord covenants that it shall
\ncarry commercially reasonable insurance during the term of the Lease.<\/p>\n
47. ASSIGNMENT, SUBLETTING, MORTGAGING:<\/p>\n
(A) Subject to the provisions of Section 47 (B)(vii),
\nTenant will not by operation of law or otherwise, assign, mortgage or
\nencumber this Lease, nor sublet or permit the Demised Premises or any part
\nthereof to be used by others, without Landlord’s prior express written
\nconsent in each instance. Any transfer, by operation of law or otherwise, of
\nTenant’s interest in this Lease (in whole or in part) or of a fifty (50%)
\npercent or greater interest in Tenant (whether stock, partnership interest or
\notherwise) shall be deemed an assignment of this Lease within the meaning of
\nthis Article. (The issuance of shares of stock to other than the existing
\nshareholders shall be deemed to be a transfer of such stock for the purposes
\nof this Article.) If there has been a previous transfer of less than a fifty
\n(50%) percent interest, in Tenant during the term of this Lease, any other
\ntransfer of an interest in Tenant which would then result in an aggregate
\ntransfer of greater than a fifty (50%) percent interest in Tenant shall be
\ndeemed an assignment of Tenant’s interest in this Lease within the meaning of
\nthis Article.<\/p>\n
(B) (i) In the event that Tenant shall at any time or times
\nduring the term of this Lease desire to assign this Lease or sublet all or any
\npart of the Demised Premises, Tenant shall give notice (the “Assignment\/Sublet
\nNotice”) thereof to Landlord, which notice shall be accompanied by (a) at
\nTenant’s option, either a conformed or photostatic copy of the proposed
\nassignment or sublease agreement (provided, however that such proposed
\nassignment or sublease agreement need not be in executed form if accompanied by
\na writing signed by Tenant and the proposed assignee or sublessee indicating
\ntheir intent to enter into the proposed assignment or sublease upon Landlord
\nconsenting thereto), or a copy of a letter of intent (the “Letter of Intent”)
\nexecuted by or on behalf of Tenant and the proposed assignee or subtenant
\nsetting forth the material business terms of the proposed<\/p>\n
7<\/p>\n
assignment or sublease; in either event, the effective or commencement date of
\nwhich shall be at least twenty (20) days after the giving of such notice, (b) a
\nstatement setting forth in reasonable detail the identity of the proposed
\nassignee or subtenant, the nature of its business and its proposed use of the
\nDemised Premises, (c) current financial information with respect to the proposed
\nassignee or subtenant, including, without limitation, its most recent financial
\nreport or statement (if same exists, and if not, the equivalent information in a
\nform reasonably satisfactory to Landlord), and (d) such other information as
\nLandlord may reasonably request. Such notice shall be deemed an offer from
\nTenant to Landlord whereby Landlord (or Landlord’s designee) may, at its option:
\n(i) terminate this Lease (if the proposed transaction is an assignment or
\nsublease of all or substantially all of the Demised Premises), or (ii) terminate
\nthis Lease with respect to the space covered by the proposed sublease (if the
\nproposed transaction is a sublease of part of the Demised Premises for all or
\nsubstantially all of the remainder of the term of this Lease, i.e., the term of
\nwhich expires during the final eighteen (18) months prior to the Expiration
\nDate). For purposes of this paragraph, “substantially all of the Demised
\nPremises” shall mean more than seventy (70%) percent thereof. Said options may
\nbe exercised by Landlord by notice to Tenant at any time within twenty (20) days
\nafter Landlord’s receipt of the Assignment\/Sublet Notice, together with all
\nother documentation and information required pursuant to this paragraph to be
\ngiven by Tenant to Landlord (“Recapture Period”); and during such Recapture
\nPeriod Tenant shall not assign this Lease or sublet such space to any person.
\nFollowing the expiration of the Recapture Period, Tenant shall have one hundred
\ntwenty (120) days to submit to Landlord Tenant’s written request for Landlord’s
\nconsent to a proposed assignment or sublease on the same terms and conditions as
\nwere contained in the proposed assignment or sublease or the Letter of Intent,
\nwhich was previously submitted to Landlord pursuant to this Section, whichever
\nis applicable. In the event that Tenant fails to submit such written request for
\nLandlord’s consent as set forth in the preceding sentence within such 120 day
\nperiod, then in connection for with any request for Landlord’s consent to such
\nproposed assignment of this Lease or proposed subletting of the Demised Premises
\nor any portion thereof submitted after such 120 day period, Tenant will be
\nrequired to comply with all of the requirements of this paragraph and Landlord
\nshall have all the options under this paragraph.<\/p>\n
(ii) If Landlord exercises its option to terminate this Lease
\nin the event that Tenant desires either to assign this Lease or to sublet all or
\nsubstantially all of the Demised Premises, then this Lease shall end and expire
\nupon the date that such assignment or subletting was to be effective or to
\ncommence, as the case may be, and the Minimum Rent and Additional Rent shall be
\npaid and apportioned to such date. If Landlord exercises its option to terminate
\nthis Lease as to a portion of the Demised Premises in the event that Tenant
\ndesires to sublet a portion of the Demised Premises, then this Lease, with
\nrespect to the portion of the Demised Premises affected by such subletting,
\nshall end and expire upon the date that such subletting was to commence, the
\nMinimum Rent payable hereunder and the Additional Rent payable pursuant to this
\nLease hereof shall be adjusted in proportion to the portion of the Demised
\nPremises affected by such termination and Tenant shall reimburse Landlord as
\nAdditional Rent hereunder for the cost of erecting such demising walls as are
\nnecessary to separate the Terminated portion of the Demised Premises from the
\nremainder of the Demised Premises and to provide access thereto within ten (10)
\ndays after demand therefor.<\/p>\n
(iii) In the event that Tenant complies with the provisions of
\nthis subparagraph of this Article and Landlord does not exercise an option
\nprovided to it thereunder within the time provided therefor, and provided that
\nTenant is not in default of any of Tenant’s obligations under this Lease beyond
\nthe expiration of applicable notice and cure periods expressly set forth in this
\nLease, Landlord’s consent (which must be in writing and in form reasonably
\nsatisfactory to Landlord) to the proposed assignment of this Lease or subletting
\nof a portion or all of the Demised Premises shall not be unreasonably withheld
\nor delayed (and shall be given or denied within a reasonable time not to exceed
\nthirty (30) days after Landlord has been provided with all information or
\ndocumentation which it deems necessary in order to make its decision), provided
\nthe following conditions have been satisfied:<\/p>\n
(1) in Landlord’s reasonable judgment, the proposed assignee
\n or subtenant is engaged in such a business, and the Demised
\n Premises will be used in such a manner, that: (x) is limited
\n to the use expressly permitted under this Lease; and (y) will
\n not violate any negative covenant as to use contained in any
\n other Lease of space in the Building about<\/p>\n
8<\/p>\n
which Tenant has been informed following its request to
\n Landlord for such information;<\/p>\n
(2) the proposed assignee or subtenant (and proposed
\n guarantor(s) of the Lease, who shall execute a guaranty of
\n this Lease in the form required by the Landlord) has
\n sufficient financial worth considering the responsibility
\n involved, and Landlord has been furnished with reasonable
\n proof thereof. As a condition to granting its consent to any
\n proposed assignment or subletting, Landlord must receive
\n executed, notarized guaranties of Lease (in substantially the
\n form required by the Landlord) from guarantor(s) of the Lease
\n who control the proposed assignee or subtenant and own the
\n majority of its stock and\/or other ownership interests;<\/p>\n
(3) the proposed assignee or sublessee is not then an occupant
\n of any part of the Building unless there is no vacant, similar
\n space available at that time for leasing in the Building and
\n further, unless no existing tenant or occupant of the Building
\n will be vacating other space in the Building as a result of
\n the proposed assignment or sublet;<\/p>\n
(4) the proposed assignee or sublessee is not a person with
\n whom Landlord is then, or shall have been during the previous
\n twelve (12) month period, negotiating to lease space in the
\n Building unless there is no vacant, similar space available at
\n that time for leasing in the Building;<\/p>\n
(5) Tenant shall have submitted to Landlord a fully executed
\n counterpart of the proposed assignment or the proposed
\n sublease, as the case may be, and the form of the same shall
\n be reasonably satisfactory to Landlord and shall comply with
\n the applicable provisions of this Article;<\/p>\n
(6) the amount of aggregate rent to be paid by the proposed
\n subtenant is not less than the then commercially reasonable
\n rent per rentable square foot for a sublease of the Demised
\n Premises unless there is no vacant, similar space available at
\n that time for leasing in the Building and the other terms and
\n conditions of the sublease are the same as those contained in
\n the proposed sublease furnished to Landlord pursuant to
\n paragraph (b) of this Article;<\/p>\n
(7) Tenant shall reimburse Landlord on demand for any actual
\n out of pocket costs that may be incurred by Landlord in
\n connection with said agreement or sublease, including the
\n costs of making investigations as to the acceptability of the
\n proposed assignee or subtenant and legal costs incurred in
\n connection with the granting of any requested consent;<\/p>\n
(8) Tenant shall not have (a) advertised or publicized in any
\n way the availability of the Demised Premises without prior
\n notice to, and approval by, Landlord, which approval Landlord
\n agrees not to unreasonably withhold, nor shall any
\n advertisement state the name (as distinguished from the
\n address) of the Building, or (b) listed the Demised Premises
\n for subletting or assignment, with a broker, agent or
\n representative or otherwise, at a proposed rental less than
\n the Minimum Rent and Additional Rent at which Landlord is then
\n offering to Lease other space in the Building;<\/p>\n
(9) the sublease shall not provide for an option on behalf of
\n the subtenant thereunder to extend or renew the term of such
\n sublease and shall also not grant to subtenant any space
\n option or other option set forth in this Lease (which
\n option(s) is (are) only granted to the original Tenant
\n hereunder);<\/p>\n
(10) such subletting shall not result in there being more than
\n three (3) occupants of the Demised Premises, including Tenant.<\/p>\n
(iv) Each subletting pursuant to this Article shall be subject
\nto all of the covenants, agreements, terms, provisions and conditions contained
\nin this Lease. Notwithstanding any such<\/p>\n
9<\/p>\n
subletting and\/or acceptance of Minimum Rent or Additional Rent by Landlord from
\nany subtenant, Tenant shall and will remain fully liable for the payment of the
\nMinimum Rent and Additional Rent due, and to become due, hereunder, for the
\nperformance of all of the covenants, agreements, terms, provisions and
\nconditions contained in this Lease on the part of Tenant to be performed and for
\nall acts and omissions of any licensee, subtenant, or any other person claiming
\nunder or through any subtenant that shall be in violation of any of the
\nobligations of this Lease, and any such violation shall be deemed to be a
\nviolation by Tenant. Tenant further agrees that, notwithstanding any such
\nsubletting, no other and further subletting of the Demised Premises by Tenant,
\nor any person claiming through or under Tenant shall, or will be, made, except
\nupon compliance with, and subject to, the provisions of this Article.<\/p>\n
(v) Any assignment or transfer shall be made only if, and
\nshall not be effective until, the assignee shall execute, acknowledge and
\ndeliver to Landlord an agreement, in form and substance reasonably satisfactory
\nto Landlord, whereby the assignee shall assume all of the obligations of this
\nLease on the part of Tenant to be performed or observed and whereby the assignee
\nshall agree that the provisions contained in paragraph (a) shall,
\nnotwithstanding such assignment or transfer, continue to be binding upon it in
\nrespect of all future assignments and transfers.<\/p>\n
(vi) If Landlord shall give its consent to any assignment of
\nthis Lease or to any sublease, Tenant shall, in consideration therefor, pay to
\nLandlord, as Additional Rent:<\/p>\n
(a) in the case of an assignment, an amount equal to fifty
\n (50%) percent of all sums and other consideration payable to
\n Tenant by the assignee for, or by reason of, such
\n assignment; and<\/p>\n
(b) in the case of a sublease, fifty (50%) percent, after
\n payment of costs, of any rents, additional charges, or other
\n consideration payable under the sublease by the subtenant to
\n Tenant that are in excess of the Minimum Rent and Additional
\n Rent accruing during the term of the sublease in respect of
\n the subleased space (at the rate per square foot payable by
\n Tenant hereunder) pursuant to the terms hereof, including,
\n without limitation, all sums paid for the sale or rental of
\n tenant’s fixtures, leasehold improvements, equipment,
\n furniture or other personal property.<\/p>\n
The sums payable under this paragraph (vi) shall be paid to
\nLandlord as and when payable by the subtenant to Tenant.<\/p>\n
(vii) If Tenant (or any subtenant) is a corporation, the
\nprovisions of subparagraph (A) of this Article shall apply to a transfer
\n(however accomplished, whether in a single transaction or in a series of related
\nor unrelated transactions) of stock (or any other mechanism such as, by way of
\nexample, the issuance of additional stock, a stock voting agreement or change in
\nclass(es) of stock) which results in a change of control of Tenant (or such
\nsubtenant) as if such transfer of stock (or other mechanism) which results in a
\nchange of control of Tenant (or such subtenant) were an assignment of this
\nLease, and if Tenant (or such subtenant) is a partnership, limited liability
\ncompany or joint venture, said provisions shall apply with respect to a transfer
\n(by one or more transfers) of an interest in the distributions of profits and
\nlosses of such partnership, joint venture or limited liability company (or other
\nmechanism, such as, by way of example, the creation of additional general
\npartnership or limited partnership interests or limited liability company
\ninterests) which results in a change of control of such partnership or joint
\nventure or limited liability company, as if such transfer of an interest in the
\ndistributions of profits and losses of such partnership or joint venture or
\nlimited liability company which results in a change of control of such
\npartnership or joint venture or limited liability company were an assignment of
\nthis Lease; but the provisions of subparagraph (A) of this Article hereof shall
\nnot apply to transactions with (u) a corporation into or with which Tenant is
\nmerged or consolidated, (v) a corporation, partnership or other entity to which
\nsubstantially all of Tenant’s assets and stock are transferred, (w) any
\ncorporation which controls or is controlled by Tenant or is under common control
\nwith Tenant, (x) any person, persons, entity or entities to whom a controlling
\nblock of Tenant’s stock is transferred, (y) an existing shareholder or
\nshareholders, or (z) a trust established by or for the benefit of existing
\nshareholder or shareholders, provided that the Tenant hereunder immediately
\nafter such a transfer has a net worth computed in accordance with generally
\naccepted accounting principles at least equal to the “Minimum Net<\/p>\n
10<\/p>\n
Worth” (as defined below), (ii) proof reasonably satisfactory to Landlord of
\nsuch net worth shall have been delivered to Landlord at least ten (10) days
\nprior to the effective date of any such transaction, (iii) in the event that the
\nTenant hereunder immediately after such transfer is other than the Tenant herein
\nnamed, a duplicate original instrument of assignment in form and substance
\nreasonably satisfactory to Landlord, duly executed by Tenant and executed,
\nnotarized guaranties of this Lease (in the form of the guaranty of Lease
\nrequired by Landlord) from guarantors of this Lease who control the proposed
\nassignee or subtenant and own the majority of its stock and\/or other ownership
\ninterests, shall have been delivered to Landlord at least ten (10) days prior to
\nthe effective date of any such transaction, (iv) in the event that the Tenant
\nhereunder immediately after such transfer is other than the Tenant herein named
\n(a “New Tenant”), an instrument in form and substance reasonably satisfactory to
\nLandlord, duly executed by such New Tenant, in which such New Tenant assumes (as
\nof and from the Commencement Date) observance and performance of, and agrees to
\nbe personally bound by, all of the terms, covenants and conditions of this Lease
\non Tenant’s part to be performed and observed shall have been delivered to
\nLandlord at least ten (10) days prior to the effective date of any such
\ntransaction, and (v) such merger, consolidation or transfer shall be for a good
\nbusiness purpose with a view toward continuing Tenant’s business as an on-going
\nconcern and not principally for the propose of transferring this Lease. For
\npurposes of this subparagraph (vii), the term “control” shall mean, in the case
\nof a corporation, ownership or voting control, directly or indirectly, of more
\nthan fifty percent (50%) of all the voting stock, and in case of a joint venture
\nor partnership or similar entity, ownership, directly or indirectly, of more
\nthan fifty percent (50%) of all the general or other partnership (or similar)
\ninterests therein. Any agreement pursuant to which (x) Tenant is relieved from
\nthe obligation to pay all or a part of Minimum Rent or Additional Rent under
\nthis Lease, and (y) a third party undertakes or is granted any right to assign
\nor attempt to assign this Lease or sublet or attempt to sublet all or any
\nportion of the Demised Premises, shall be deemed an assignment of this Lease and
\nsubject to the provisions of this Article, including, without limitation,
\nsubparagraph (A) hereof. For purposes of this subparagraph, the term “Minimum
\nNet Worth” shall mean the Tenant’s net worth as of the date hereof.
\nNotwithstanding anything to the contrary contained herein, the transfer of stock
\nto any family member or members of the shareholders of Tenant who as of the date
\nhereof own a minimum of fifty-one (51%) percent of the outstanding shares of
\nTenant (the “Major Shareholders”), or to any trust established for the benefit
\nof one or more of the family members of the Major Shareholders shall not in any
\nevent be treated as an assignment of thins Lease and Landlord’s consent shall
\nnot be required therefor. Notwithstanding anything to the contrary contained in
\nthis Lease, the transfer of outstanding capital stock or other listed
\nequal.\/interests, or the purchase of outstanding capital stock or other listed
\nequity interests, or the purchase of equity interests issued in an initial
\npublic offering of stock, through the “over-the-counter” market or any
\nrecognized national or international securities exchange shall not constitute an
\nassignment or transfer for purposes of this Lease.<\/p>\n
(C) Subject to the provisions of Section 47 (B)(vii), each
\npermitted assignee shall assume and bE deemed to have assumed this Lease and
\nshall be and remain liable jointly and severally with Tenant for the payment of
\nthe Minimum Rent and Additional Rent and for the due performance of all the
\nterms, covenants, conditions and agreements herein contained on Tenant’s part to
\nbe performed for the term of this Lease and any renewals and modifications
\nhereof. No assignment shall be binding on Landlord unless, as hereinbefore
\nprovided, such assignee or Tenant shall deliver to Landlord a duplicate original
\nof the instrument of assignment which contains a covenant of assumption by the
\nassignee of all of the obligations aforesaid and shall obtain from Landlord the
\naforesaid written consent prior thereto. Any assignment, sublease or agreement
\npermitting the use and occupancy of the premises to which Landlord shall not
\nhave expressly consented in writing shall be deemed null and void and of no
\nforce or effect.<\/p>\n
(D) Tenant agrees that notwithstanding any subletting or
\nassignment permitted by Landlord, no other and further subletting of the Demised
\nPremises by Tenant or any person or entity claiming through or under Tenant
\nshall or will be made except upon compliance with and subject to the provisions
\nof this Article.<\/p>\n
48. TENANT’S CERTIFICATE: Tenant shall, without charge at any time and from time
\nto time, within ten (10) days after request by Landlord, certify by written
\ninstrument, duly executed, acknowledged and delivered and given with the express
\nknowledge that any party may rely on the information set forth in said
\ninstrument, to any mortgagee, assignee of any mortgage or to any<\/p>\n
11<\/p>\n
purchaser, or any proposed mortgagee, assignee of any mortgage or purchaser, or
\nany other person, firm or corporation specified by Landlord’<\/p>\n
(A) that this Lease is unmodified and in full force and effect
\n(or, if there has been modification, that the Lease is in full force and effect
\nas modified and stating the modifications) and that both the Landlord and the
\nTenant are not then in default under this Lease (or, if there has been a
\ndefault, stating the default(s), if any);<\/p>\n
(B) whether or not there are then existing any setoffs or
\ndefenses against the enforcement of any of the agreements, terms, covenants or
\nconditions hereof upon the part of Tenant to be performed or complied with (and,
\nif so, specifying the same);<\/p>\n
(C) the dates, if any, to which the rental, additional rental
\nand other charges hereunder have been paid in advance, and stating the rental,
\nadditional rent and other charges provided for in the Lease;<\/p>\n
(D) the commencement date and expiration date of the Lease;<\/p>\n
(E) whether or not any rental has been paid more than 30 days
\nbefore the due date, and whether or not the Tenant has any unsatisfied claim
\nagainst Landlord;<\/p>\n
(F) the security deposit (if any) deposited by Tenant under
\nthe Lease;<\/p>\n
(G) whether any actions, whether voluntary or otherwise, are
\npending against the Tenant under the bankruptcy laws of the United States or any
\nstate thereof; and<\/p>\n
(H) whether the Tenant has any option to renew or expand the
\nterm of the Lease or the leased premises, as the case may be, and whether the
\nTenant has any right of first refusal to purchase (or lease) the Demised
\nPremises or any part thereof or the Building in which the Premises are located.<\/p>\n
In the event that Tenant fails to deliver to Landlord the
\naforesaid certificate within the time period described hereinabove, then Tenant
\nherein unconditionally agrees that it shall be liable on demand to pay Landlord
\nthe sum of $750.00 for each day that Tenant is late in delivering the aforesaid
\ncertificate to Landlord, such sum to be as and for Landlord’s full and complete
\nliquidated and agreed monetary damages suffered by reason of Tenant’s failure to
\ntimely deliver an estoppel certificate to Landlord. In addition to the
\nforegoing, Landlord reserves the right to exercise any further rights or
\nremedies available to it under the Lease, at law or equity by reason of Tenant’s
\ndefault hereunder.<\/p>\n
49. EXCULPATORY CLAUSE: If Landlord shall be an individual, joint venture,
\nlimited liability company, tenancy-in-common, co-partnership, unincorporated
\nassociation, or other unincorporated aggregate of individuals and\/or entities,
\nor a corporation, Tenant shall look only to such Landlord’s estate and property
\nin the Building and, where expressly so provided in this Lease, to offset
\nagainst the rents payable under this Lease, for the satisfaction of Tenant’s
\nremedies for the collection of a judgment (or other judicial process) requiring
\nthe payment of money by Landlord in the event of any default by Landlord
\nhereunder, and no other property or assets of such Landlord shall be subject to
\nlevy, execution or other enforcement procedure for the satisfaction of Tenant’s
\nremedies under or with respect to this Lease, the relationship of Landlord and
\nTenant hereunder or Tenant’s use or occupancy of the Demised Premises.<\/p>\n
50. BROKER: Both parties covenant, warrants and represents that there was no
\nbroker instrumental in consummating this lease other than Cushman & Wakefield,
\nInc. and Insignia\/ESG (collectively, the “Broker”), and no conversations or
\nnegotiations were had with any other broker concerning the renting of the
\nDemised Premises. Both parties agree to indemnify, defend and hold and save the
\nother party harmless against any and all liability from any claims of any other
\nbroker who claims to have dealt with the other party (including, without
\nlimitation, the cost of counsel fees in connection with the defense of any such
\nclaims in connection with the renting of the Demised Premises).<\/p>\n
12<\/p>\n
51. CONFLICT OF TERMS: In the event any term, covenant, condition or agreement
\ncontained in this rider to the Lease shall conflict or be inconsistent with any
\nterm, covenant, condition or agreement contained in the printed portion of this
\nLease, then the parties agree that the rider provision shall prevail.<\/p>\n
52. TENANT’S REMEDIES: With respect to any provision of this Lease which
\nprovides, in effect, that Landlord shall not unreasonably withhold or
\nunreasonably delay any consent or any approval, Tenant in no event, shall be
\nentitled to make, nor shall Tenant make, any claim, and Tenant hereby waives any
\nclaim, for money damages; nor shall Tenant claim any money damages by way of
\nsetoff, counterclaim or defense, based upon any claim or assertion by Tenant
\nthat Landlord has unreasonably withheld or unreasonably delayed any consent or
\napproval; but Tenant’s sole remedy shall be an action or proceeding to enforce
\nany such provision, or for specific performance, injunction or declaratory
\njudgment.<\/p>\n
53. NO EXCESSIVE NOISE: Tenant agrees that it will use the Demised Premises and
\nwill perform all work required or permitted hereunder in such a manner so as not
\nto creme any excessive noise which disturbs any of the other tenants of the
\nBuilding or persons occupying adjacent and neighboring premises.<\/p>\n
54. LABOR REGULATIONS: Tenant covenants and agrees that prior to and throughout
\nthe demised term, it shall not take any action which would violate Landlord’s
\nunion contract, if any, affecting the Building, nor create any work stoppage,
\npicketing, labor disruption or dispute, or any interference with the business of
\nthe Landlord or any other tenant or occupant in the Building or with the rights
\nand privileges of any person(s) lawfully in said Building, nor cause any
\nimpairment or reduction of the good name of the Building. Any default by Tenant
\nunder this Article shall be deemed a material default entitling Landlord to
\nexercise any or all of the remedies as provided in this Lease.<\/p>\n
55. CONTROL OF TENANT: If the Tenant is a corporation (other than one whose
\nshares are regularly and publicly traded on a recognized stock exchange),
\npartnership or other entity other than an individual, Tenant represents that the
\nownership and power to vote the majority of its entire outstanding capital stock
\nor other controlling interest (collectively “Controlling Interest”) belongs to
\nand is vested in the person(s) executing this Lease or members of his or their
\nimmediate family.<\/p>\n
56. ADDENDUM TO ARTICLE 22: If Tenant shall default in surrendering the Demised
\nPremises upon the expiration or termination of the term, Tenant’s occupancy
\nsubsequent to such expiration or termination, whether or not with the consent or
\nacquiescence of Landlord, shall be deemed to be that of a tenancy at will and in
\nno event from month-to-month or from year-to-year, and it shall be subject to
\nall the terms, covenants and conditions of this lease applicable thereto, except
\nthe Minimum Rent and Additional Rent payable under this Lease shall be 175% of
\nthe amount payable in the last year of the terns, and no extension or renewal of
\nthis Lease shall be deemed to have occurred by such holding over.<\/p>\n
57. ADDENDUM TO ARTICLE 18: Should Tenant fail to pay within five (5) days of
\nwhen due any installments of Minimum Rent, Additional Rent, or any other sum
\npayable to Landlord under J the terms of this Lease, then a late charge in the
\namount of $0.10 per $1.00 due shall be added to the sum due and shall be deemed
\nAdditional Rent hereunder. If Tenant shall issue a check to Landlord which is
\nreturnable unpaid for any reason, Tenant shall pay Landlord an additional charge
\nof $100.00 for Landlord’s expenses in connection therewith. If Tenant shall
\ndefault (i) in the timely (5 days) payment of Fixed Rent or Additional Rent for
\nany three (3) consecutive months or for a total of six (6) months in any period
\nof twelve (12) months then, notwithstanding, that such defaults shall have each
\nbeen cured within the applicable period, if any, any further similar default
\nshall be deemed to be deliberate and Landlord thereafter may serve Tenant with a
\nthree (3) days’ notice of termination without affording to Tenant an opportunity
\nto cure such further default at which time the term of this Lease shall
\nterminate as if that day were the Expiration Date.<\/p>\n
58. ENTIRE AGREEMENT: No earlier statement or prior written matter shall have
\nany force or effect. Tenant agrees that it is not relying on any representations
\nor agreements other than those<\/p>\n
13<\/p>\n
contained in this Lease. This agreement shall not be modified or canceled except
\nby writing subscribed by all parties.<\/p>\n
59. SAVING PROVISION: If any provision of this Lease, or its application to any
\nsituation shall be invalid or unenforceable to any extent, the remainder of this
\nLease, or the application thereof to situations other than that as to which it
\nis invalid or unenforceable, shall not be affected thereby, and every provision
\nof this Lease shall be valid and enforceable to the fullest extent permitted by
\nlaw.<\/p>\n
60. LEASE NOT BINDING UNLESS EXECUTED: Submission by Landlord of the within
\nLease for execution by Tenant shall confer no rights nor impose any obligations
\non either party unless and until both Landlord and Tenant shall have executed
\nthis Lease and duplicate originals thereof shall have been delivered to the
\nrespective parties.<\/p>\n
61. [Intentionally Omitted.]<\/p>\n
62. WAIVER OF JURY TRIAL AND RIGHT TO COUNTERCLAIM. Tenant hereby waives all
\nright to trial by jury in any summary or other action, proceeding or
\ncounterclaim arising out of or in any way connected with this Lease, the
\nrelationship of Landlord and Tenant, the Demised Premises and the use and
\noccupancy thereof, any claim of injury or damages, and any emergency statutory
\nor other statutory remedy. Tenant also hereby waives all right to assert or
\ninterpose a counterclaim in any summary proceeding or other action or proceeding
\nto recover or obtain possession of the Demised Premises.<\/p>\n
63. INJUNCTIVE RELIEF: In the event of a breach or threatened breach by Tenant
\nof any of the covenants or provisions of this Lease, Landlord shall have the
\nright of injunction and the right to invoke any remedy allowed at law or in
\nequity as if re-entry, summary proceedings and other remedies were not herein
\nprovided for. Mention in this Lease of any particular remedy shall not preclude
\nLandlord from any other remedy, at law or in equity. Tenant hereby expressly
\nwaives any and all rights of redemption granted by or under any present or
\nfuture laws in the event of Tenant’s being evicted or dispossessed, or in the
\nevent of Landlord’s obtaining possession of the Demised Premises by reason of
\nTenant’s violation of the provisions of this Lease. Tenant further agrees that
\nit shall not interpose any counterclaim or counterclaims in a summary proceeding
\nor in any other action or proceeding to evict the Tenant or otherwise recover
\npossession of the Demised Premises and Tenant hereby waives the right to
\ninterpose any noncompulsory counterclaim or noncompulsory counterclaims in any
\nsuch proceeding(s).<\/p>\n
64. RECORDATION: Tenant covenants not to place this Lease on record or to record
\nthis Lease without the prior written consent of Landlord. At the request of
\nLandlord, Tenant will execute a memorandum of lease for recording purposes
\ncontaining references to such provisions of this Lease as Landlord, in its sole
\ndiscretion, shall deem necessary.<\/p>\n
65. ATTORNEYS’ FEES: Tenant agrees to pay Landlord upon demand, as an Additional
\nRental, a sum equal to all costs and expenses (including attorneys’ fees, costs
\nof investigation and disbursements) incurred by Landlord in enforcing any or all
\nof its rights hereunder, specifically including the cost of collecting sums due,
\nwhether or not an action or proceeding is commenced, or levying and collecting
\non any judgment or arbitration award in Landlord’s favor. Landlord agrees to
\nindemnify Tenant for reasonable legal fees incurred by Tenant in enforcing its
\nrights hereunder after a non-appealable, final judgment is rendered against
\nLandlord.<\/p>\n
66. FORCE MAJEURE: In the event that either party hereto shall be delayed or
\nhindered in or prevented from the performance or any act required hereunder
\nother than Tenant’s obligation to pay rent by reason of strikes, lockouts, labor
\ntroubles, failure of power, riots, insurrection, war or other reason of like
\nnature not the fault of the party delayed in performing work or doing acts, such
\nparty shall be excused for the period of delay. The period of performance of any
\nsuch act shall then be extended for the period of such delay.<\/p>\n
67. [Intentionally Omitted.]<\/p>\n
68. [Intentionally Omitted.]<\/p>\n
14<\/p>\n
69. [Intentionally Omitted.]<\/p>\n
70. AIR CONDITIONING\/HEATING:<\/p>\n
(A) Landlord shall provide to the Demised Premises air
\nconditioning and heating of sufficient capacity to service the Demised Premises
\nfor normal office use only.<\/p>\n
(B) Tenant acknowledges that the air conditioning and heating
\nservice to the Demised Premises will be provided only during normal working
\nhours (8:00 AM to 6:00 PM) on normal weekdays only. Tenant shall notify Landlord
\nnot less than two (2) days in advance in the event Tenant shall require air
\nconditioning or heating after 6:00 PM on a normal weekday. In the event Landlord
\nis able to supply air conditioning or heat during such period, Tenant shall pay
\nto Landlord $450.00 per hour for after hours charges after 6:00 PM on a normal
\nweekday and for each hour of time on any weekend day for providing air
\nconditioning or heat to the Demised Premises during such after hours or weekend
\nperiods.<\/p>\n
In the event Landlord is unable to provide the electrical\/air
\nconditioning and heating services for a period in excess of fifteen (15)
\nconsecutive days, and as a result thereof, all or any material portion of the
\nDemised Premises is rendered unusable for Tenant’s business at the Demised
\nPremises, the Minimum and the Additional Rent shall be abated to the extent and
\nfor the period that all or any material portion of the Demised Premises is so
\nrendered unusable. In the even that Landlord is unable to provide the services
\nfor any period in excess of one hundred eighty (180) consecutive days, Tenant
\nshall have the right, exercisable within twenty (20) days after the expiration
\nof said one hundred eighty (180) day period, to terminate this Lease by written
\nnotice to Landlord.<\/p>\n
(C) Landlord has installed one supplemental air-conditioning
\nunit (“Supplementary Unit”) to service the Demised Premises.<\/p>\n
(a) the electricity used in connection with the usage of the
\nSupplementary Unit shall be separately submetered by Tenant at its sole cost and
\nexpense (and a separate submeter shall be installed by Tenant at its sole cost
\nand expense) and paid separately by Tenant and consumption of electricity for
\nsame shall be measured and billed to Tenant in accordance with Landlord’s
\nrequirements. As payment for the aforesaid Electricity charges, Tenant shall pay
\nto Landlord within ten (10) days of receipt of Landlord’s bill therefor, as
\nAdditional Rent, the sum of (i) an amount determined by applying the “Electric
\nRate” to Tenant’s consumption of and demand for electricity for its usage of the
\nSupplemental Unit as recorded on the submeter or submeters installed by Tenant
\nas above set forth, and (ii) Landlord’s administrative charge of seven (7%)
\npercent of the amount referred to in (i) above for overhead and supervision and
\ncharges therefor. Bills for same may be rendered monthly at such times as
\nLandlord may elect and, commencing on the earlier of(i) Tenant’s occupancy of
\nall or any portion of the Demised Premises, or (ii) the Commencement Date of the
\nterm of this lease, the amounts as computed from meter readings shall be deemed
\nto be, and be paid as, Additional Rent without set-off or deduction.<\/p>\n
For the purposes of this Article, Landlord and Tenant agree
\nthat:<\/p>\n
(1) The term “Electric Rate” (including all applicable
\n surcharges, demand charges, energy charges, fuel adjustment
\n charges, time of day charges, taxes and other sums payable
\n in respect thereof) shall mean the Service Classification
\n pursuant to which Landlord purchases electricity from the
\n utility company servicing the Building, provided, however,
\n at no time shall the amount payable by Tenant for
\n electricity be less than the Cost per Kilowatthour
\n (hereinafter defined).<\/p>\n
(2) The term “Cost per Kilowatthour” shall mean the total
\n cost for electricity incurred by Landlord to service the
\n Building during a particular time period (including all
\n applicable surcharges, demand charges, energy charges, fuel
\n adjustment charges, time of day charges, taxes and other
\n sums payable in<\/p>\n
15<\/p>\n
respect thereof) divided by the total kilowatthours
\n purchased by Landlord during such period;<\/p>\n
(b) Upon the expiration or sooner termination of the term of
\nthe Lease, the Supplementary Unit shall become Landlord’s sole property. Tenant
\nhereby indemnifies and holds Landlord harmless for any and all damage to the
\nBuilding caused by the maintenance of the aforesaid Supplemental Unit on the
\nBuilding. Prior to installation, Tenant will obtain insurance to protect
\nLandlord against any damage by reason of the foregoing, and will deliver
\ninsurance certificates naming Landlord as an additional insured under such
\npolicy prior to commencing installation;<\/p>\n
(c) Landlord shall not in any way be liable or responsible to
\nTenant for any loss or damage or expense which Tenant may sustain or incur if
\neither the quantity or character of electric service is changed or is no longer
\navailable or suitable for Tenant’s requirements. Tenant’s use of electric
\ncurrent in the Demised Premises shall not at any time exceed the capacity of any
\nof the electrical conductors and facilities in or otherwise serving the Demised
\nPremises.<\/p>\n
71. CLEANING: Landlord shall provide, at is sole cost and expense, cleaning
\nservices for the Demised Premises in accordance with building standard
\nspecifications.<\/p>\n
72. SECURITY. (A) (i) Tenant has deposited with Landlord the sum of; $80,000.00
\nupon the execution of this Lease, as security for the performance by Tenant of
\nall of the terms, covenants and conditions of this Lease on Tenant’s part to be
\nperformed. Landlord shall have the right, upon the expiration of the required
\nnotice and cure periods under the Lease and regardless of the exercise of any
\nother remedy Landlord may have by reason of a default, to apply any part of said
\ndeposit to cure any default of Tenant, and, if Landlord does so, Tenant shall
\nupon five (5) day demand deposit with Landlord the amount so applied so that
\nLandlord shall have the full amount of the security ($80,000.00) during the term
\nof this Lease subject to the provisions of subparagraph (B) hereinbelow. If
\nTenant shall fail to make such deposit, Landlord shall have the same remedies
\nfor such failure as Landlord has for a default in the payment of Minimum Rent.
\nIn the event of an assignment or transfer of the leasehold estate under the
\nLease, (a) Landlord shall have the right to transfer the security to the
\nassignee only upon such assignment or transfer, (b) Landlord shall thereupon be
\nautomatically released by Tenant from all liability for the return of such
\nsecurity, and (c) Tenant shall look solely to the assignee for the return of
\nsaid security, and the foregoing provisions of this sentence shall apply to
\nevery transfer made of the security to a new assignee of Landlord’s interest in
\nthe Lease. The security deposited under this Lease shall not be assigned or
\nencumbered by Tenant without the prior consent of Landlord, and any such
\nassignment or encumbrance shall be void. Landlord and Tenant acknowledge and
\nagree that Tenant hereby waives any right, whether statutory or otherwise, to
\nany interest earned on said security, and Tenant shall in no event be entitled
\nto interest on said security.<\/p>\n
(ii) Upon the expiration of the eighteenth (18th) month
\nanniversary of the Rent Commencement Date of this Lease, provided that this
\nLease remains in full force and effect, and the original Tenant named herein
\nremains in possession of the Demised Premises and is not then in default under
\nthis Lease after the expiration of any applicable grace periods expressly stated
\nin this Lease, the Landlord shall return to Tenant a portion of the security
\ndeposit held by Landlord in the amount of an equivalent of two (2) months of the
\ncurrent Minimum Rent under this Lease. Landlord shall have the option of either
\nremitting a check to Tenant for this sum within 30 days of Tenant’s written
\nrequest to Landlord together with substantiating documentation proving its
\nentitlement thereto pursuant to the terms hereof, and failing such remission by
\nLandlord the Tenant shall be entitled to credit same against the next recurring
\ninstallments of Minimum Rent which may be due during the term of this Lease.<\/p>\n
(iii) In the event that a Letter of Credit has been delivered
\nby Tenant to Landlord pursuant to subparagraph (B) hereinbelow, any reduction in
\nor return of security mandated by subparagraphs (A)(i) and (ii) hereinabove may
\nbe implemented by Tenant delivering to the Landlord a replacement Letter of
\nCredit in the reduced amount indicated in subparagraphs (A)(i) and (ii)
\nhereinabove provided such replacement Letter of Credit is acceptable to the
\nLandlord.<\/p>\n
16<\/p>\n
(B) (i) In lieu of a cash security deposit or, within ninety
\n(90) days of the date hereof, time being of the essence, Tenant may replace the
\ncash security deposit by delivering to Landlord a clean, automatically self
\nrenewing, non-expiring, irrevocable letter of credit in the original amount of
\n$80,000.00 (the “Letter of Credit”) to be issued to Landlord by a New York-based
\nfederally-insured lending institution acceptable to Landlord. The letter of
\ncredit shall unequivocally state on its face that it shall be effective and in
\nplace for a period commencing on the Commencement Date and finally expiring on a
\ndate no less than sixty (60) days subsequent to the Expiration Date (the “LOC
\nExpiration Date”). In the event that for any reason whatsoever the Letter of
\nCredit shall expire or shall fail to be renewed or replaced within 90 days prior
\nto the LOC Expiration Date or any prior or subsequent renewal date (automatic or
\notherwise), then Tenant herein unconditionally acknowledges that (i) Landlord
\nshall have the unconditional right at any time to draw upon the existing Letter
\nof Credit and to hold such sums until the LOC Expiration Date as cash security
\nfor Tenant’s performance under this Lease and (ii) at Landlord’s option, such
\nfailure shall be deemed to be a material default by Tenant under this Lease and
\nLandlord shall have all of its remedies thereof under the Lease, at law and at
\nequity. Tenant shall ensure that the foregoing sentence shall appear “in bold”
\non the face of the letter of credit. Tenant acknowledged that Landlord shall be
\nentitled to retain the Letter of Credit until the LOC Expiration Date.<\/p>\n
(ii) In the event Tenant shall default during the period in
\nwhich the Letter of Credit shall be in place after the expiration of any
\napplicable grace periods expressly stated in this Lease, Landlord shall have the
\nright, and regardless of the exercise of any other remedy Landlord may have by
\nreason of a default, to immediately draw against the Letter of Credit to the
\nextent necessary to cure the amount of any default and to apply any part of said
\nLetter of Credit to the extent necessary to cure any default of Tenant, and, if
\nLandlord does so, Tenant shall upon demand issue a new Letter of Credit in favor
\nof Landlord in the face amount of the original amount so drawn down so that
\nLandlord shall at all times have the full amount of the Letter of Credit
\nrequired under this Article during the entire term of this Lease. If Tenant
\nshall fail to issue such new Letter of Credit, Landlord shall have the same
\nremedies for such failure as Landlord has for a default in the payment of
\nMinimum Rent. Landlord’s right to draw on the Letter of Credit shall continue
\nfor so long as Tenant shall remain in default.<\/p>\n
(iii) In the event of an assignment or transfer by the
\nLandlord of the leasehold estate under the Lease, (a) Landlord shall have the
\nright without any charge, cost, fee or expense charged to any party, to transfer
\nor assign the Letter of Credit to the assignee by delivering to said assignee a
\nblanket assignment of said Letter of Credit (using a form acceptable to Landlord
\nin its sole discretion), (b) Landlord shall thereupon upon such transfer be
\nautomatically released by Tenant from all liability, if any, for the return of
\nsuch Letter of Credit, and (c) Tenant shall look solely to the assignee for the
\nreturn of said Letter of Credit, and the foregoing provisions of this sentence
\nshall apply to every transfer made of the Letter of Credit to a new assignee of
\nLandlord’s interest in the Lease. The Letter of Credit issued under this Lease
\nshall not be assigned or encumbered by Tenant or by the issuing bank without the
\nprior consent of Landlord, and any such assignment or encumbrance shall be void.<\/p>\n
(iv) The Letter of Credit may not be automatically
\nself-reducing on its face, but may be replaced and reduced by Tenant to comply
\nwith the express provisions of subparagraphs (A) (i) and (ii) hereinabove
\nprovided such replacement Letter of Credit is acceptable to the Landlord.<\/p>\n
SIGNATURE PAGE TO FOLLOW<\/p>\n
17<\/p>\n
IN WITNESS WHEREOF, Owner (Landlord) and Tenant have
\nrespectively executed this Lease as of the day anti year first above written.<\/p>\n
LANDLORD<\/p>\n
CROWN LEXINGTON LLC<\/p>\n
By: Crown 360 Associates, L.P., member<\/p>\n
By: Crown 360 Corp., general partner<\/p>\n
By: \/s\/ Davar Rad
\n ———————————————
\n Davar Rad, President<\/p>\n
TENANT<\/p>\n
INTRAWARE, INC.<\/p>\n
By:
\n ———————————————
\n Donald Freed,
\n Chief Executive Officer and Executive Vice-President<\/p>\n
18<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7907],"corporate_contracts_industries":[],"corporate_contracts_types":[9603,9579],"class_list":["post-41727","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-intraware-inc","corporate_contracts_types-land__ny","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41727","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41727"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41727"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41727"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41727"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}