|
Exhibit 10.1
Agreement of Lease , made as of this 13 th
day of July, 1989, between MITCHMAR ATLANTA PROPERTIES, INC., a
Delaware corporation, with offices at 151 Sunnyside Boulevard,
Plainview, New York 11803 party
of the first part, hereinafter referred to as OWNER, and SID TOOL
CO., INC., a New York corporation, with offices at 151 Sunnyside
Boulevard, Plainview, New York 11803, party
of the second part, hereinafter referred to as TENANT,
Witnesseth : Owner
hereby leases to Tenant and Tenant hereby hires from Owner the land
shown on the survey annexed hereto as Exhibit A, together with all
the rights and appurtenances that pertain thereto and the
approximately 236,738 square foot building and improvements to be
constructed thereon, for the term as provided at paragraph 42 of
the attached rider, at an annual rental rate of set forth at
paragraph 43 (“fixed rent”) of the attached
rider, which
Tenant agrees to pay in lawful money of the United States which
shall be legal tender in payment of all debts and dues, public and
private, at the time of payment, in equal monthly installments in
advance on the first day of each month during said term, at the
office of Owner or such other place as Owner may designate, without
any set off or deduction whatsoever.
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, distributees,
executors, administrators, legal representatives, successors
and assigns, hereby covenant as follows:
Occupancy: 1.
Tenant shall pay the rent as above and as hereinafter
provided.
Use:
2.
Tenant shall use and occupy demised premises for
warehouse, distribution and sale of tools and equipment and offices
therefor, provided such use is in accordance with the Certificate
of Occupancy for the building, if any, and for no other
purpose.
Alterations:
3. Tenant
shall make no changes in or to the demised premises of any nature
without Owner’s prior written consent. Subject to
the prior written consent of Owner, and to the provisions of this
article, Tenant at Tenant’s expense, may make alterations,
installations, additions or improvements which are non-structural
and which do not affect utility services or plumbing and electrical
lines, in or to the interior of the demised premises using
contractors or mechanics first approved by Owner. Tenant
shall, at its expense, before making any alterations, additions,
installations or improvements obtain all permits, approval and
certificates required by any governmental or quasi-governmental
bodies and (upon completion) certificates of final approval thereof
and shall deliver promptly duplicates of all such permits,
approvals and certificates to Owner. Tenant agrees to
carry and will cause Tenant’s contractors and sub-contractors
to carry such workman’s compensation, general liability,
personal and property damage insurance as Owner may
require. If any mechanic’s lien is filed against
the demised premises, or the building of which the same forms a
part, for work claimed to have been dome for, or materials
furnished to, Tenant, whether or not done pursuant to this article,
the same shall be discharged by Tenant within thirty days
thereafter, at Tenant’s expense, by filing the bond required
by law or otherwise. All fixtures and all paneling,
partitions, railings and like installations, installed in the
premises at any time, either by Tenant or 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 days prior
to the dated 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 any such from the premises or upon removal of
other installations as may be required by Owner, Tenant shall
immediately and at its expense, repair and restore the premises to
the condition existing prior to installation and repair any damage
to the demised premises or the building due to such
removal.
4. [Reserved]
Window Cleaning: 5. Tenant will not
clean nor require, permit, suffer or allow any window in the
demised premises to be cleaned from the outside in violation of any
applicable law or of the Rules of the Board of Standards and
Appeals, or of any other Board or body having or asserting
jurisdiction.
Requirements of Law, Fire Insurance, Floor
Loads: 6. Prior to the commencement
of the lease term, if Tenant is then in possession, and at all
times thereafter, Tenant 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, commissions and boards and any direction
of any public officer pursuant to law, and all orders, rules and
regulations of the New York Board of Fire Underwriters (or similar
body in the jurisdiction in which the demised premises lies) , or
any similar body which shall impose any violation, order or duty
upon Owner or Tenant with respect to the demised premises, whether
or not arising out of Tenant’s use or manner of use thereof,
or, with respect to the building, if arising out of Tenant’s
use or manner of use of the demised premises or the building
(including the use permitted under the lease). Except as provided
in Article 30 hereof, nothing herein shall require Tenant to make
structural repairs or alterations unless Tenant has, by its manner
of use of the demised premises or method of operation therein,
violated any such laws, ordinances, orders, rules, regulations or
requirements with respect thereto. Tenant 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, 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 quantity so as not to increase the rate for fire
insurance applicable to the building, nor use the premises in a
manner which will increase the insurance rate for the building or
any property located therein over that in effect prior to the
commencement of 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 additional rent hereunder, for that portion of all fire
insurance premiums thereafter paid by Owner which shall have been
charged because of such failure by
Tenant. In
any
action or proceeding wherein Owner and Tenant are parties, a
schedule or “make-up” 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
premises. Tenant shall not place a load upon any
floor of the demised premises exceeding the floor load per
square foot area which it was designed to carry and which is
allowed by law. Owner reserves the right to
prescribe the weight and position of all safes, business
machines and mechanical equipment. Such
installations shall be placed and maintained by Tenant, at
Tenant’s expense, in settings sufficient, in
Owner’s judgement, 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 first mortgages which may now or hereafter affect such leases
or the real property of which demised premises are a part and to
all renewals, modifications, consolidations, replacements and
extensions of any such underlying leases and first
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 first mortgagee, affecting any lease
or the real property of which the demised premises are a
part. In confirmation of such subordination, Tenant
shall execute promptly any certificate that Owner may
request.
Property – Loss, Damage, Reimbursement,
Indemnity: 8. Owner or its agents
shall not be liable for any damage to property of Tenant or of
others entrusted to employees of the building, nor for loss of or
damage to any property of Tenant by theft or otherwise, nor for any
injury or damage to persons or property resulting from any cause of
whatsoever nature, unless caused by or due to the negligence of
Owner, its agents, servants or employees; Owner or its agents 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 therefor nor abatement or diminution of rent nor shall
the same release Tenant from its obligations hereunder nor
constitute an eviction. Tenant shall indemnify and save
harmless Owner against and from all liabilities, obligations,
damages, penalties, claims, costs and expenses for which Owner
shall not be reimbursed by insurance, including reasonable
attorney’s fees, paid, suffered or incurred as a result of
any breach by Tenant, Tenant’s agents, contractors,
employees, invitees, or licensees, of any covenant or condition of
this lease, or the carelessness, negligence or improper conduct of
the Tenant, Tenant’s agents, contractors, employees, invitees
or licensees. Tenant’s liability under this lease
extends to the acts and missions of any sub-tenant, and any agent,
contractor, employee, invitee or licensee of any
subtenant. In case any action or proceeding is brought
against Owner by reason of any such claim, Tenant, upon written
notice from Owner, will, at
Tenant’s expense, resist or defend such action or proceeding
by counsel approved by Owner in writing, such approval not to be
unreasonably withheld.
Destruction, Fire and Other
Casualty: 9. (a) If the
demised premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give immediate notice thereof to Owner
and this lease shall continue in full force and effect except as
hereinafter set forth. (b) If the demised premises are
partially damaged or rendered partially unusable by fire or other
casualty, the
damages
thereto shall be repaired by and at the expense of Owner and
the rent, until such repair shall be substantially completed,
shall be apportioned from the day following the casualty
according to the part of the premises which is
usable. (c) If the demised premises are totally
damaged or rendered wholly unusable by fire or other casualty,
then the rent shall be proportionately paid up to the time of
the casualty and thenceforth shall cease until the date when
the premises shall have been repaired and restored by Owner,
subject to Owner’s right to elect not to restore the
same as hereinafter provided. (d) If the
demised premises are rendered wholly unusable or (whether or
not the demised premises arc damaged in whole or in part) if
the building shall be so damaged that Owner shall decide to
demolish it or to rebuild it, then, in any of such events,
Owner may elect to terminate this lease by written notice to
Tenant, given within 90 days after such fire or casualty,
specifying a date for the expiration of the lease, which date
shall not be more than 60 days after the giving of such
notice, and upon the date specified in such notice the term of
this lease shall expire as fully and completely as if such
date were the date set forth above for the termination of this
lease and Tenant shall forthwith quit, surrender and vacate
the 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 owing shall
be paid up to such date and any payments of rent made by
Tenant which were on account of any period subsequent to such
date shall be returned to Tenant. Unless Owner
shall serve a termination notice as provided for herein, Owner
shall make the repairs and restorations under the conditions
of (b) and (c) hereof, with all reasonable expedition, subject
to delays due to adjustment of insurance chaims, labor
troubles and causes beyond Owner's control. After any such
casualty, Tenant shall cooperate with Owner's restoration
by removing
from the premises as promptly as reasonably possible, all of
Tenant’s salvageable inventory and movable equipment,
furniture, and other property. Tenant’s
liability for rent shall resume five (5) days after written
notice from Owner that the premises are substantially ready
for Tenant’s occupancy. (e) Nothing contained
hereinabove shall relieve Tenant from liability that may exist
as a result of damage from fire or other
casualty. Notwithstanding the foregoing, each party
shall look first to any insurance in its favor before making
any claim against the other party for recovery for loss or
damage resulting from fire or other casualty, and to the
extent that such insurance is in force and collectible and to
the extent permitted by law, Owner and Tenant each hereby
releases and waives all right of recovery against the other or
any one claiming through or under each of them by way of
subrogation or otherwise. The foregoing release and
waiver shall be in force only if both releasors’
insurance policies contain a clause providing that such a
release or waiver shall not invalidate the
insurance. If, and to the extent, that such waiver
can be obtained only by the payment of additional premiums,
then the party benefitting from the waiver shall pay such
premium within ten days after written demand or shall be
deemed to have agreed that the party obtaining insurance
coverage shall be free of any further obligation under the
provisions hereof with respect to waiver of
subrogation. Tenant acknowledges that Owner will
not carry insurance on Tenant’s furniture and or
furnishings or any fixtures or equipment, improvements, or
appurtenances removable by Tenant and agrees that Owner will
not be obligated to repair any damage thereto or replace the
same. (f) Tenant hereby waives the provisions of
Section 227 of the Real Property Law and agrees that the
provisions of this article shall govern and control in lieu
thereof.
Eminent Domain: 10. If all or any
material part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or
purpose, then and in that event, the term of this lease shall cease
and terminate from the date of title vesting in such proceeding and
Tenant shall have no claim for the value of any unexpired term of
said lease.
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 shall be deemed an assignment. If this
lease be assigned, or if the demised premises or any part thereof
be underlet or occupied by anybody other than Tenant, Owner may,
after default by Tenant, collect rent from the assignee,
under-tenant or occupant, and apply the net amount 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, under-tenant or occupant as
tenant, or a release of Tenant from the further performance by
Tenant of covenants on the part of Tenant herein
contained. The consent by Owner to an assignment or
underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any
further assignment or underletting. The consent of Owner
to an assignment or sublet shall not be unreasonably withheld or
delayed.
12. [Reserved]
Access to Premises: 13. Owner or
Owner’s agents shall have the right (but shall not be
obligated) to enter the demised premises in any emergency at any
time, and, at other reasonable times, to examine the same and to
make such repairs, replacements and improvements as Owner may deem
necessary and reasonably desirable to any portion of the building
or which Owner may elect to perform in the 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 and maintain and replace pipes and conduits in and through the
demised premises and to erect new pipes and conduits therein
provided, wherever possible, 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 the Tenant be entitled to any abatement of rent while such
work is in progress nor to any damages by reason of loss or
interruption of business or otherwise. Throughout the
term hereof Owner shall have the right to enter the demised
premises at reasonable hours for the purpose of showing the same to
prospective purchasers or mortgagees of the building, and during
the last six months of the term for the purpose of showing the same
to prospective tenants and may, during said six months period,
place upon the 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 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 therefor, nor in any event
shall the obligations of Tenant hereunder be
affected. If during the last month of the term Tenant
shall have removed all or substantially
all of Tenant’s property therefrom, Owner may immediately
enter, alter, renovate or redecorate the demised premises without
limitation or abatement of rent, or incurring liability to Tenant
for any compensation and such act shall have no effect on this
lease or Tenant’s obligations hereunder.
Vault, Vault Space, Area: 14. No vaults, vault space
or area, whether or not enclosed or covered, not within the
property line of the building is leased hereunder, anything
contained or indicated on any sketch, blue print or plan, or
anything contained elsewere in this lease to the contrary not
withstanding. Owner makes no representation as to the location of
the property line of the building. All vaults and vault
space and all such areas not within the property line of the
building, which Tenant may be permitted to use and/or occupy, is to
be used and/or occupied under a revocable license, and if any such
license be revoked, or if the amount of such space or area be
diminished or required by any federal, state or municipal authority
or public utility, Owner shall 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 the certificate
occupancy issued for the building of which the demised premises are
a part. Tenant has inspected the premises and accepts
them as is, subject to the riders annexed hereto with respect to
Owner’s work, if any. In any event, Owner makes no
representation as to the condition of the premises and Tenant
agrees to accept the same subject to violations, whether or not of
record. If any governmental license or permit 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.
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 as
the debtor; or (2) the making by Tenant of an assignment or any
other arrangement for the benefit of creditors under any state
statute. Neither Tenant nor any person claiming through
or under Tenant, or by reason of any statute or order of court,
shall thereafter be entitled to possession of the premises demised
but shall forthwith quit and surrender the premises. If
this lease shall be assigned in accordance with its terms, the
provisions of this Article 16 shall be applicable only to the party
then owning Tenant’s interest in this lease.
(b) It
is stipulated and agreed that in the event of the termination
of this lease pursuant to (a) hereof, Owner shall forthwith,
notwithstanding any other provisions of this lease to the
contrary, be entitled to recover from Tenant as and for
liquidated damages an amount equal to the difference between
the 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 which such installment was
payable shall be discounted to the date of termination at the
rate of four percent (4%) per annum. If such
premises or any part thereof be relet by the Owner for the
unexpired term of said lease, or any part thereof, before
presentation of proof of such liquidated damages to any court,
commission or tribunal, the amount of rent reserved upon such
reletting shall be deemed to be the fair and reasonable rental
value for the part or the whole of the premises so re-let
during the term of the re-letting. Nothing herein
contained shall limit or prejudice 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 when, and
governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to
above.
Default: 17. (1) If Tenant
defaults in fulfilling any of the covenants of this lease other
than the covenants for the payment of rent or additional rent; or
if the demised premises becomes vacant or deserted “or if
this lease be rejected under § 235 of Title 11 of the U.S.
Code (bankruptcy code);” or if any execution or attachment
shall be issued against Tenant or any of Tenant’s property
whereupon the demised premises shall be taken or occupied by
someone other than Tenant; or if Tenant shall make default 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 failed to move into or take possession
of the premises within fifteen (15) 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 five (5) days notice upon Tenant specifying the nature of
said default and upon the expiration of said five (5) days, if
Tenant shall have failed to comply with or remedy such default, or
if the said default or omission complained of shall be of a nature
that the same cannot be completely cured or remedied within said
five (5) day period, and if Tenant shall not have diligently
commenced during such default within such five (5) 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 three (3) days’ notice of cancellation of this lease
upon Tenant, and upon the expiration of said three (3) days this
lease and the term thereunder shall end and expire as fully and
completely as if the expiration of such three (3) day period were
the day herein definitely fixed for the end and expiration of this
lease and the term thereof and Tenant shall then quit and surrender
the demised premises to Owner but Tenant shall remain liable as
hereinafter provided.
(2) If
the notice provided for in (1) hereof shall have been given,
and the term shall expire as aforesaid: or if Tenant shall
make 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 required: then and in any of such
events Owner may without notice, re-enter the demised premises
either by force or otherwise, and dispossess Tenant by summary
proceedings or otherwise, and the legal representative of
Tenant or other occupant of demised premises and remove their
effects and hold the premises as if this lease had not been
made, and Tenant hereby waives the service of notice of
intention to re-enter or to institute legal proceedings to
that end. If Tenant shall make default hereunder prior to the
date fixed as the commencement of any renewal or extension of
this lease, Owner 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 dispossess 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,
dispossess and/or expiration, (b) Owner may re-let the premises or
any part or parts thereof, either in the name of Owner or
otherwise, for a term or terms, which may at Owner’s option
be less than or exceed the period which would otherwise have
constituted the balance of the term of this lease and may grant
concessions or free rent or charge a higher rental than that in
this lease, (c) Tenant or the legal representatives of Tenant shall
also pay 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 covenanted
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 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 legal
expenses,
attorneys’ fees, brokerage, advertising and for keeping
the demised premises in good order or for preparing the same
for re-letting. Any such liquidated damages shall
be paid in monthly installments by Tenant on the rent day
specified in this lease and any suit brought to collect the
amount of the deficiency for any month shall not prejudice in
any way the rights of Owner to collect the deficiency for any
subsequent month by a similar proceeding. Owner, in
putting the demised premises in good order or preparing the
same for re-rental may, at Owner’s option, make such
alterations, repairs, replacements, and/or decorations in the
demised premises as Owner, in Owner’s sole judgment,
considers advisable and necessary for the purpose of
re-letting 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 demised
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
the sums payable by Tenant to Owner hereunder. In
the event of a breach or
threatened breach by Tenant of any of the covenants or
provisions hereof, Owner shall have the right of injunction
and the right to invoke any remedy allowed at law or in equity
as if re-entry, summary proceedings and other remedies were
not herein provided for. Mention in this lease of
any particular remedy, shall 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 Tenant
shall default in the observance or performance of any term or
covenant on Tenant’s part to be observed or performed under
or by virtue of any of the terms or provisions in any article of
this lease, then, unless otherwise provided elsewhere in this
lease, Owner may immediately or at any time thereafter and without
notice perform the obligation of Tenant thereunder. If
Owner, in connection with the foregoing or in connection with any
default by Tenant in the covenant hereunder, makes any expenditures
or incurs any obligations for the payment of money, including but
not limited to attorney’s fees, in instituting, prosecuting
or defending any action or proceedings, 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 Owner within five (5) days
of rendition of any bill or statement to Tenant
therefor. If Tenant’s lease term shall have
expired at the time of making of such expenditures or incurring of
such obligations, such sums shall be recoverable by Owner as
damages.
Building Alterations and
Management: 20. Owner shall have the
right at any time without the same constituting an eviction and
without incurring liability to Tenant therefor to change the
arrangement and or location of public entrances, passageways,
doors, doorways, corridors, elevators, stairs, toilets or other
public parts of the building and to change the name, number or
designation by which the building may be known. There
shall be no allowance to Tenant for diminution of rental value and
no liability on the part of Owner by reason of inconvenience,
annoyance or injury to business arising from Owner or other 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 Owner’s
imposition of any controls of the manner of access to the building
by Tenant’s social or business visitors as the Owner may deem
necessary for the security of the building and its
occupants.
No Representations by Owner: 21.
Neither Owner nor Owner’s agents have made any
representations or promises with respect to the physical condition
of the building, the land upon which it is erected or the demised
premises, the rents, leases, expenses of operation or any other
matter or thing affecting or related to the 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 has inspected 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 and acknowledges that the taking of possession of the
demised premises by Tenant shall be conclusive evidence that the
said premises and the building of which the same form a part were
in good and satisfactory condition at the time such possession was
so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties
hereto are merged in this contract, which alone fully and
completely expresses the agreement between Owner and Tenant and any
executory agreement hereafter made shall be ineffective to change,
modify, discharge or effect an abandonment of it in whole or in
part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification,
discharge or abandonment is sought.
End of Term: 22. Upon the expiration
or other termination of the term of this lease, Tenant shall quit
and surrender to Owner the demised premises, broom clean, in good
order and condition, ordinary wear and damages which Tenant is not
required to repair as provided elsewhere in this lease excepted,
and Tenant shall remove all its property from the demised
premises. Tenant’s obligation 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 enjoy 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 hereinbefore
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
holding-over or retention of possession of any tenant, undertenant
or occupants or if the demised premises are located in a building
being constructed, because such building has not been sufficiently
completed to make the premises ready for occupancy or because of
the fact that a certificate of occupancy has not been procured or
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 possessions on said date and the
validity of the lease shall not be impaired under such
circumstances, nor shall the same be construed in any wise to
extend the term of 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 the premises arc
substantially ready for Tenant’s occupancy. If
permission is given to Tenant to enter into the possession of the
demised premises or to occupy premises other than the demised
premises prior to the date specified as the commencement of the
term of this lease, Tenant covenants and agrees that such occupancy
shall be deemed to be under all the terms, covenants, conditions
and provisions of this lease, except as to the covenant to pay
rent.
No Waiver. 25. The failure of Owner
to seek redress for violation of, or to insist upon the strict
performance of any covenant or condition of this lease or of any of
the Rules or Regulations, set forth or hereafter adopted by Owner,
shall not prevent a subsequent act which would have originally
constituted a violation from having all the force and effect of an
original violation. The receipt by Owner of rent with
knowledge of the breach of any covenant of this lease shall not be
deemed a waiver of such breach and no provision of this lease shall
be deemed to have been waived by Owner unless such waiver be in
writing 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 for 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 or a surrender of the
premises.
Waiver of Trial by Jury. 26. It is
mutually agreed by and between Owner and Tenant that the respective
parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties
hereto against the other (except for personal injury or property
damage) on any matters whatsoever arising out of or in any way
connected with this lease, the relationship of Owner and Tenant,
Tenant’s use of or occupancy of said premises, and any
emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Owner commences any
summary proceeding for possession of the premises, Tenant will not
interpose any counterclaim of whatever nature or description in any
such proceeding.
Inability to Perform: 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 wise be affected, impaired or excused
because Owner is unable to fulfill any of its obligations under
this lease or to supply or is delayed in supplying any service
expressly or impliedly to be supplied or is unable to make, or is
delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any
equipment or fixtures if Owner is prevented or delayed from so
doing by reason of strike or labor troubles or any cause whatsover
beyond Owner's sole control including, but not limited to,
government preemption in connection with a National Emergency or by
reason of any rule order or regulation of any department or
subdivision thereof of any government agency or by reason of the
conditions of supply and demand which have been or are affected by
war or other emergency.
Bills and Notices: 28. Except as
otherwise in this lease prov
|
