LEASE
BETWEEN
65 RUSHMORE REALTY, LLC as Landlord
AND
DIONICS INC., as Tenant
Dated as of: July 27, 2005
Premises: 65 Rushmore
Street
Westbury, New York
Table of Contents
Article
Page
1 Premises -- Term of Lease
1
2 Definitions
2
3 Rent
5
4 Taxes and Other Charges
(Impositions)
9
5 Late Charges
12
6 Insurance
12
7 Casualties, Restoration and Use
of
Fire Insurance Proceeds
15
8 Tenant's Right to Make Alterations
16
9 General Requirements Regarding
Alterations
16
10 Assignment and Subleasing
18
11 Mortgage
19
12 Repairs
20
13 Early Termination Of Lease
21
14 Compliance with Legal Requirements
And Insurance
Requirements
21
15 Fixtures and Articles of Personal
Property
21
16 Discharge of Liens
22
17 Condition and Title of the Premises
23
18 Leasehold Mortgages
24
19 Landlord Not Liable for Injury or
Damage;
Indemnification
of Landlord
24
20 Landlord's Right of Inspection
24
21 Landlord's Right to Perform Tenant's
Covenants
25
22 Permitted Use; No Unlawful Occupancy
26
23 Defaults, Conditional Limitations,
Remedies, etc. 26
24 Notices
29
25 Condemnation
30
26 Security Deposits
32
27 Limitation of Liability
32
28 Excavations and Shoring
32
29 Estoppel Certificates by Landlord and
Tenant 33
30 Landlord's Consents
33
31 Surrender at End of Term
33
32 No Oral Agreements
34
33 Quiet Enjoyment
34
34 Compliance with Covenants,
Restrictions
And Easements
34
35 Financial Reports
35
36 Intentionally Omitted
35
37 Recording of Memorandum
35
38 Miscellaneous
35
39 Broker
38
LEASE
THIS
LEASE (the "Lease")
made as of the 27th day of July 2005,
between 65 Rushmore Realty, LLC duly
authorized to do business in the
State of New York, with an office at 32-01
College Point Boulevard,
Flushing, New York 11354 (hereinafter
referred to as "Landlord") and
Dionics, Inc. with an office at 65 Rushmore
Street, Westbury,
New
York (hereinafter referred to as
"Tenant");
ARTICLE 1
Premises - Term of Lease
Section
1.01.
Landlord,
in consideration of the premises and
of the rents
hereinafter reserved and of the covenants,
agreements and
conditions
herein contained, to be kept and
performed on the part
of Tenant,
hereby leases to Tenant and Tenant hereby hires
and leases from
Landlord all that certain lot, piece or
parcel of land, together with
the "Building" (hereinafter defined) thereon,
situate, lying and
being at Westbury in the County of Nassau,
and State of
New York
(collectively the "Premises"), known as and
located at 65
Rushmore
Street, together with the "Equipment"
(hereinafter defined); together
with Landlord's interest in all strips
and gores, if any,
adjoining
the above described land; together
with Landlord's interest, if any,
in and to any vault space and land
lying in the bed of any street or
avenue in front of or adjoining the above described land; and
together with the rights, privileges and
easements appurtenant to the
land subject to: (i) the terms and
conditions of this Lease; and (ii)
Landlord's right to mortgage its fee estate
in the Premises;
Subject,
further, to the following:
1. Any state of
facts an accurate survey would show.
2. All "Legal
Requirements" (hereinafter defined) including,
without limitation, building restrictions and
regulations
now or
hereafter in force and present and future
zoning laws,
ordinances,
resolutions and regulations of all boards, and/or environmental
bureaus, commissions, and bodies of municipal, county, state or
federal sovereigns now or hereafter having or
hereafter acquiring
jurisdiction of the Premises and the use
and improvement thereof;
3. Presently
existing rights, easements, licenses or privileges
to use or maintain vaults, areas,
tunnels, ramps or structures under
highways, roads, streets, avenues or
sidewalks on which the
Premises
abut, and consents or grants prior to the
date of this Lease for
the
erection of any structures on, under or
above said highways,
roads,
streets, avenues or sidewalks, and any
grants, licenses or
consents
with respect to sewers, public utility lines,
pipes, conduits
and
equipment;
4. Violations
of law, ordinances,
regulations, orders
or
requirements, if any, whether or not of
record and whether or not the
same might be disclosed by an examination
and inspection or search of
the Premises, by any federal, state,
municipal or other governmental
department or authority having
jurisdiction, as the same may exist on
the date hereof and/or on the date of the
commencement of the term of
this Lease including without limitation
violations of any Local Laws
of the City of New York;
5. The condition
and state of repair of the Premises on the date
of the commencement of the term of this
Lease;
6. All taxes,
assessments, water charges, rates and rents accrued
or unaccrued, fixed or not fixed, subject
to apportionment;
7. The revocable
nature of any right to maintain vaults, vault
spaces, basements and basement spaces,
marquees or signs;
8. Dedications,
restrictions, covenants consents, easements and
agreements of record;
9. Any
encroachments existing on the date of commencement of the
term of this Lease;
10. Unpaid
franchise or business
corporation taxes of
any
corporation in the chain of title shall not
be an objection to
title
provided that Tenant's title company agrees to insure against
collection out of the Premises on Tenant's
policy of leasehold
title
insurance;
TO HAVE AND TO HOLD the Premises, subject as
aforesaid unto
Tenant, and, subject to the provisions hereof,
Tenant's
successors
and permitted assigns, for a term of seven (7)
years commencing
on
the "Commencement Date" (as
hereinafter defined) and expiring on the
last day of the month in which occurs the
seventh anniversary of
the
Commencement Date (unless the Commencement
Date is the first of
the
month in which event the term shall
expire on the day preceding the
seventh anniversary of the Commencement Date)
"Expiration
Date,"
unless this Lease shall be sooner terminated or extensions are
granted as hereinafter provided.
ARTICLE 2
Definitions
Section
2.01.
The terms defined in this Article shall, for
all purposes
in
this Lease and all agreements
supplemental hereto have the meanings
herein specified.
(a) "Land" shall mean the parcel of land
described in
section
1.01.
(b) "Premises" shall mean the premises described
in Section
1.01. hereof.
(c) "Building" shall mean any and all
improvements
structures,
Equipment and fixtures, of every kind and
description (other
than
personal property of subtenants, property
contractors servicing
the
Building, and improvements for water, gas
and electricity and
other
similar equipment or improvements owned by
any public utility company
or any governmental agency body) now or at any time hereafter
erected, constructed, affixed or attached
to or placed in or
placed
upon the Land or improvements or
structures thereon, or used for or
adapted in any way to the use, enjoyment,
occupancy and operation of
the land or the improvements and
structures thereon, and any and all
alterations, renewals and replacements
thereof, additions thereto and
substitutes therefore.
(d)
"Commencement Date" shall mean July 27, 2005.
(e) "Equipment"
shall mean Landlord's interest in any machinery,
apparatus, equipment, personal property and
fixtures of every
kind
and nature whatsoever heretofore or
hereafter attached to or used in
connection with the operation or maintenance of
the Building and
shall include, but shall not be limited
to, all machinery,
engines,
dynamos, boilers, elevators, air conditioning
compressors,
ducts,
pipes and conduits, units and equipment, heating and hot water
systems, pipes, plumbing, wiring, gas,
steam, water and
electrical
fittings, ranges and radiators and any and all alterations,
additions, improvements, restorations and
replacements of any thereof
attached to or used in connection with the
Land or any
improvement
thereon.
(f) "Unavoidable Delays" shall mean
delays due to
causes and
conditions beyond the reasonable control of
Tenant including, without
limitation, force majeure, acts of God,
governmental restrictions or
preemption, including but not limited to inability to obtain
materials, acts of the public enemy, riot,
civil commotion,
storms,
fire, floods, earthquakes, strikes, and
lockouts.
(g) "Landlord" on the date as of which
this Lease made,
shall
mean Landlord and its successors and/or
assigns under any
agreement
or by statute or by operation of law in equity
or otherwise,
but
thereafter Landlord shall mean only the holder
of the Landlord's
interest in the Premises at the time in
question, so that if Landlord
or any successor to its interest
hereunder sells or
transfers its
interest in fee title to the Premises, then
Landlord or any successor
to his interest under this Lease at the
time of such sale or transfer
shall be and hereby is entirely freed and
relieved of all agreements,
covenants and obligations of Landlord
hereunder from and
after the
time Landlord's leasehold of the
Premises is conveyed, and it shall
be deemed and construed without further
agreement between the parties
or their successors in interest between the
parties and the purchaser
or transferee on any sale or transfer that such purchaser or
transferee has assumed and agreed to carry out any and all
agreements, covenants and obligations of
Landlord hereunder
accruing
from and after the date of such conveyance,
subject, however, to
the
other applicable terms and conditions of
this Lease. Notwithstanding
the foregoing, the Landlord under the
Lease at the time of such sale
or transfer shall not be released by the
Tenant for any
claim of
Tenant against Landlord which arises out of Landlord's acts or
omissions during the period prior to such
sale or transfer provided:
(i) a written notice of a claim is
made by Tenant to Landlord by the
earlier of the expiration of the statute
of limitation with
respect
to such claim or six months after
Tenant receives written notice of
the transfer by Landlord; and (ii) Landlord in any
proper action
brought by Tenant against Landlord after
such sale or transfer
shall
be entitled to rely upon any and all of the
protections, benefits and
provisions of this Lease as if Landlord had
not sold or
transferred
its interest in this Lease.
(h) "Tenant" shall mean Tenant as defined above
and whenever
this Lease and the leasehold estate
hereby created shall be assigned
or transferred by Tenant in the manner
specifically permitted herein,
then from and after such assignment or
transfer, the term
"Tenant"
shall mean only the permitted assignee or
transferee named
therein
and that is the owner of Tenant's interest
hereunder as
if such
assignee or transferee has been named herein as Tenant. The
foregoing-provisions shall not be construed
to relieve Tenant
herein
named or any assignee or successor in
interest of the Tenant
herein
named from the covenants, obligations and
conditions to
be paid,
performed and observed by Tenant under this
Lease.
(i) "this Lease" includes all amendments and modifications
hereof executed by the party against whom enforcement of the
amendments or modifications is sought.
(i) "Rental" shall mean collectively the net annual rental
specified in Section 3.01 hereof and
Impositions plus all other such
costs, expenses, charges, payments and
deposits which Tenant assumes
or agrees to pay hereunder.
(j) "Impositions" shall have the meaning provided
in Section
4.01.
(k) The terms "Leasehold Mortgage" and
"Leasehold
Mortgagee"
shall have the meanings provided in Section
18.01.
(l) "Event of Default" shall have the meaning provided in
Section 23.01.
(m) "Default" shall mean any condition or event, which
constitutes or would, after expiration of
applicable notice,
grace
and/or cure or lapse of time, or both, constitute an Event of
Default.
(n) The words "herein," "hereof" and
"hereunder" and words
of
similar import refer to this Lease as a
whole and not any particular
section or subdivision thereof.
(o) "Expiration
Date" shall mean July 31, 2012.
(p) "Sublease"
means any sublease, letting, written or oral, or
license, concession, easement, occupancy or
any other agreement
to
use all or any portion of the Premises.
(q) "Subtenant" means a sublessee,
subtenant or licensee of the
Premises under any Sublease.
(r) "Legal Requirements" shall mean
all federal, state, county,
city, municipal and other governmental and quasi-governmental
statutes, laws (including without limitation
all Local Laws of
the
City of New York), orders, regulations, ordinances, judgments,
requirements, decrees and injunctions
affecting all or any
part of
the Premises or the sidewalks, curbs
or areas adjacent thereto, and
all permits, licenses, authorizations and regulations relating
thereto including certificate(s) of occupancy, if any, for the
Premises, and all easements, covenants, restrictions
and similar
matters set forth in all instruments of record
applicable to
the
Premises or the Lease which either exist as
of the date hereof or are
hereafter created by Tenant or consented to
by Tenant in writing
or
required by law.
(s) "Insurance Requirements" shall
mean all requirements of any
insurance policy covering or applicable to
all or any part
of the
Premises or the use thereof required to be
maintained under
this
Lease by Tenant, all requirements of the
issuer of any such
policy
applicable to such policy, and any orders, rules, regulations,
recommendations and other requirements of
the New York Board of
Fire
Underwriters and/or the New York Fire Insurance
Rating
Organization
(or any other bodies exercising the same or similar functions)
applicable to affecting all or any part of
the Premises.
ARTICLE 3
Rent
Section
3.01.
Tenant shall pay to Landlord at its office at 32-01 College
Point Boulevard, Flushing, New York 11354 or such
other place as
shall be designated from time to time by
written notice from Landlord
to Tenant, a net annual rental ("Base Rent")
amount of
$83,286.00
payable in equal monthly installments in
the amount of $6,940.50, in
advance without prior notice or demand,
without diminution, deduction
or set-off whatsoever, on the first
day of each calendar
month for
the period commencing on the Commencement
Date through the Expiration
Date. It is expressly agreed that the annual
amount listed
above
shall be the amount due to Landlord.
The monthly amount is
merely
listed for convenience and any discrepancy
shall be ruled
by the
annual amount.
For the purposes of this Article
"Consumer Price Index" or the
"CPI-U" shall mean the Consumer Price
Index for All Urban
Consumers
of the United States Department of Labor's
Bureau of Labor Statistics
in effect for New York, Northeastern NJ All
Items (2004=100)
and
generally published at the time the
computation is to be made. "Base
Index" shall be the CPI-U for the month of
July 2005 and the "Current
Index" shall be the CPI-U in effect for
the month of July for
each
year of the Term. In the event the CPI-U ceases to
incorporate a
significant number of the items set forth
in the Base Index or
if a
substantial change is made in the method of
establishing the
CPI-U,
then the CPI-U shall be adjusted to the figure
that would have
resulted had no change occurred in the
manner of computing such CPI-
U. In the event that such CPI-U (or a
successor or substitute index)
is not available, a reliable governmental or other nonpartisan
publication evaluation shall be used in
lieu of the CPI-U.
Commencing
on August 1, 2009 and on each
anniversary of
such
date thereafter for the term of this
Lease the Base Rent
shall be
increased in accordance with the changes in
the Consumer Price
Index
published by the Bureau of Labor Statistics of the
United States
Department of Labor, as compared with the Base
Index (as defined
herein) calculated by applying the formula
set forth below (the
"Formula"); provided, however, that no
increase in
the Base Rent
shall exceed three percent (3%) on an annual
basis. The annual
increase in the Base Rent set forth herein
shall always be calculated
upon, and added to, the Base Rent of
$83,286.00 but shall not exceed
three percent (3%) on an annual basis.
Formula =Current
Index minus Base Index = percentage change in
CPI-U
Base Index
In the event that the rent shall have
been increased pursuant to the
preceding paragraph of this article and at
any time subsequently such
index shall be decreased, the rent shall
thereafter be reduced
by
such amount but in no event shall such
decrease exceed three percent
(3%) on an annual basis. All increases or decreases shall
be based
on the original Base Rent and not on
any revision thereof due to an
increase or decrease, which may have become
effective because of
the
provisions of this article.
Section
3.02.
Tenant
shall pay all net annual rental, additional
rent and
other payments and deposits, which Tenant
in any of the provisions of
this Lease assumes or agrees to pay, in
such United States of America
coin or currency as at the time of payment
shall be legal tender
for
the payment of public or private debts.
Section
3.03.
Tenant
shall also pay all
Impositions required to be paid by
Tenant under Article 4 hereof, and all sums, costs, expenses,
payments and deposits which Tenant in any
of the provisions of
this
Lease assumes or agrees to pay and/or deposit,
including without
limiting the generality of the foregoing,
deposits for
Impositions
and insurance under Article 5 hereof, and, in
the event of any
nonpayment of net annual rental additional rent,
or any of said
items, Landlord shall have (in addition to
all other rights and
remedies) all the rights and remedies
provided for herein or
by law
in the case of nonpayment of rent.
Section
3.04.
Except
as otherwise set forth
in this Lease, it is the purpose
and intent of Landlord and Tenant that the
net annual rent and
additional rent specified in Section 3.01
shall be absolutely net to
Landlord, so that this Lease shall yield net to
Landlord the net
annual rent and additional rent specified
above in this Article 3 and
that all costs, fees, Impositions and
expenses and
obligations of
every kind and nature whatsoever relating to the Premises now
existing or hereafter arising during the
lease term or whether beyond
the contemplation of the parties, shall be paid
or discharged by
Tenant, and Tenant agrees to indemnify and
save Landlord
harmless
from and against such costs, fees, charges,
expenses,
Impositions,
reimbursements and obligations and any
interest thereon.
Notwithstanding
the foregoing paragraph, except as otherwise set
forth in this Lease, Tenant shall have
no obligation to pay (i) any
interest or principal due or to become due
under any Mortgage or
any
costs or charges due or to become due under any
Mortgage (or
any
other lien not including a Mortgage or
encumbrance, right, estate or
instrument created or suffered by Landlord after
the Commencement
Date and not by, through or under Tenant,
or its subtenants, invitees
or employees thereof consented to or
requested in writing by Tenant)
which may arise as the result of any act,
omission, breach or default
by Landlord (as the mortgagor or
otherwise) unless and to the extent
such costs or charges arise because Tenant has an equivalent
obligation under this Lease which Tenant
has failed to perform within
the applicable notice, grace or cure period; (ii) the cost of
Landlord's office overhead and ordinary ministerial expenses
associated with the review of written materials
and correspondence
submitted under this Lease by Tenant to
Landlord; (iii)
Landlord's
legal fees and expenses with respect to
negotiation and preparation
of this Lease, the transaction contemplated
hereby or any other
document, instrument or transaction
negotiated prior
to the date
hereof relating hereto; (iv) Landlord's expenses if
Landlord shall
expend monies or incur obligations
(including for professional fees)
for a purpose of Landlord, as opposed to a
purpose of Tenant, and not
otherwise expressly requested by Tenant or
expressly required to
be
reimbursed under this Lease by Tenant; and
(v) except as
otherwise
set forth in this Lease or with respect to an Event
of Default,
Landlord's expenses in administering this
Lease.
Section
3.05.
All Rental which Tenant, pursuant to any
provision of this
Lease, assumes or agrees to pay, shall be paid
as in this Lease
provided, without notice or demand (except
as may be required in this
Lease), and without abatement, deduction,
counterclaim or set-off.
ARTICLE 4
Taxes and Other Charges
(Impositions)
Section
4.01.
Except
as otherwise expressly
provided to the contrary in this
Article hereof, Tenant covenants and
agrees to pay, as
hereinafter
provided, all of the following items which
relate to any period
of
the Term of this Lease: real estate taxes as set forth in
Section
4.11, special real estate taxes,
personal property taxes, use taxes
and the like, assessments, water charges, sewer
rents, rates
and
charges, vault charges, excise taxes, levies,
license and permit
fees, charges for public utilities, fines,
and all other governmental
charges and any penalties, interest or costs
with respect
thereto,
general and special, ordinary and extraordinary, foreseen and
unforeseen, of any kind and nature whatsoever
which at any time
during the term of this Lease may be assessed,
levied, confirmed,
imposed upon, or grow or become due and
payable out of or in respect
of, or charged with respect to or become a
lien on, the Premises,
or
the sidewalks or streets in front of
or adjoining the
Premises, or
any vault, passageway or space in, over or
under such sidewalk
or
street, or any other appurtenances of the
Premises, or any
personal
property, equipment or other facilities used in the operation
thereof, or the rent or income received
therefrom, or any
use or
occupancy thereof, or the Rental payable
hereunder or any document to
which Tenant is a party creating or
transferring or surrendering an
interest or estate in the Premises (all such
items being herein
called "Impositions"); each such
Imposition, or installment thereof,
during the term of the Lease to be paid
(subject to the provisions of
Section 4.04) when due but in any event
prior to the day upon
which
any fine, penalty, interest or cost
may be added thereto or imposed
by law for the nonpayment thereof;
provided, however, that if, by
law, any Imposition at the option of the taxpayer be paid in
installments (whether or not interest shall
accrue on the unpaid
balance of such Imposition), Tenant may
exercise the option to
pay
the same in such installments. Landlord agrees to use its best
efforts to deliver copies of the bills
received with respect
to all
obligations of Tenant hereunder no later than
fourteen (14) days
prior to the date that same would become
delinquent. The
failure of
Landlord to comply with this requirement in
no way relieves Tenant of
its obligation to pay any taxes due under
this Lease.
Section
4.02.
Nothing
herein contained shall
require Tenant to pay municipal,
state or federal or other income (including New
York State real
property transfer or other capital gains
taxes) profits, inheritance,
estate, succession, or gift or similar taxes of
Landlord, or any
corporate franchise tax or a transfer tax (from a transfer of
Landlord's interest in this Lease and/or the
Premises) imposed
upon
Landlord or any successor of Landlord
provided, however, that if at
any time during the term of this Lease the
methods of taxation
prevailing on the date hereof shall be
altered or changed so that in
lieu of or in addition to the whole or any
part of the Impositions
now levied, assessed or imposed upon real
estate and the improvements
thereon, there shall be imposed any tax,
assessment (including
but
not limited to any municipal, state or
federal levy), imposition or
charge, or any part thereof, measured by or
based in whole or in part
upon the Premises or Rental and imposed
upon Landlord, then all such
taxes, assessments, levies, impositions or
charges, or the part
thereof to the extent they are so measured
or based, shall be
deemed
to be included within the term
"Impositions" for the purposes hereof,
to the extent that such Impositions
would be payable if the Premises
were the only property of Landlord subject
to such Impositions
and
Tenant shall pay and discharge the same as
herein provided in respect
of the payment of Impositions.
Section
4.03.
Any Imposition relating to a fiscal period of the taxing
authority, a part of which period is
included within the term of this
Lease and a part of which is included in a
period of time before
the
Commencement Date shall (whether or not such
Imposition
shall be
assessed, levied, confirmed, imposed upon
or in respect of or
become
a lien upon the Premises, or shall become
payable, during the term of
this Lease) be paid in full by Tenant, as
Tenant was the owner of the
Building prior to the Commencement Date. All
provisions
of this
paragraph 4.03 shall survive six months
after the Expiration Date or
the earlier termination of this Lease.
Any Imposition relating to a fiscal period of the taxing
authority, a part of which period is
included within the term of this
Lease and a part of which is included in
a period of time after
the
Expiration Date shall (whether or not such Imposition shall be
assessed, levied, confirmed, imposed upon
or in respect of or
become
a lien upon the Premises, or shall become
payable, during the term of
this Lease) be apportioned between Landlord
and Tenant as
of the
Expiration Date, so that Tenant shall pay that portion of such
Imposition which that part of such fiscal
period is included in
the
period of time before the Expiration Date
to such fiscal period,
and
Landlord shall pay the remainder thereof. All
provisions of
this
paragraph 4.03 shall survive six months
after the Expiration Date or
the earlier termination of this Lease.
Section
4.04.
Tenant shall
have the right at its own expense and on notice to
Landlord to contest, review or seek a
reduction of the amount of or
validity, in whole in part, of any
Imposition or the valuation of the
Premises assessed for tax purposes by appropriate proceedings
including but not limited to appropriate
certiorari proceedings
and
appeals from any judgments, decrees or
orders diligently conducted in
good faith before or after payment of
such Imposition (which be made
under protest), provided that if payment
of an Imposition shall
be
postponed, it shall be postponed only so
long as:
(a) Neither the
Premises nor any part thereof, would by
reason of such postponement or deferment be, in
the judgment of
Landlord (which Landlord agrees shall be exercised
reasonably), in
danger of being forfeited or lost;
(b) Landlord shall not
be subject to criminal liability or
criminal penalty therefore.
Landlord will
cooperate, at no cost to Landlord (except Landlord
will pay the overhead of Landlord's office
and ordinary ministerial
expenses of administration, for a
reasonable and ordinary amount of
time), as necessary in connection with any
proceedings brought
by
Tenant to contest or seek a reduction of
any Impositions which
would
include, but not be limited to, executing
all necessary documents to
contest or seek a reduction of any
Impositions.
Section
4.05.
Provided
Tenant is not then in default, Tenant shall be
authorized to collect any refund of taxes
obtained during the term of
this Lease and to retain the same
subject to Tenant's obligation to
pay to Landlord, Landlord's pro rata share thereof pursuant to
Section 4.03. In the event Tenant shall be
in default and
Landlord
should collect any refund, then Landlord
shall retain same subject to
Landlord's obligation to pay to Tenant, Tenant's pro rata share
thereof pursuant to the provisions of
Section 4.03 hereof,
provided
that Tenant has cured all defaults
hereunder and has paid to Landlord
all amounts due under any provision
hereof.
Section
4.06.
Landlord
shall not be required to join in any proceeding
referred to in Section 4.04 hereof unless
the provisions of any
law,
rule or regulation at the time in effect
shall require
that such
proceedings be brought by and/or in the
name of Landlord or any owner
of the Land, in which event Landlord shall,
at Tenant's cost, join in
such proceedings or permit the same to be brought in its name.
Landlord shall not ultimately be subject to any
liability for
the
payment of any costs or expenses in connection with any such
proceedings (except for overhead of Landlord's
office and
ordinary
ministerial expenses of administration, for
a reasonable and ordinary
amount of time), and Tenant will defend,
indemnify and save harmless
Landlord from any such costs and
expenses.
Section
4.07.
Landlord agrees
that whenever Landlord's cooperation is required
in any of the proceedings brought by
Tenant as aforesaid, and
provided there exists no material Event of Default
which remains
uncured Landlord will reasonably cooperate therein (including
executing all documents reasonably required)
and will not take
any
action contrary to the best interests of Tenant
in any of such
proceedings; and Tenant shall have the sole
right to agree
on its
behalf and Landlord's to any settlement, compromise or other
disposition of any such proceeding; all of the
foregoing shall
not
entail any cost or expense to Landlord (except
for overhead of
Landlord's office and ordinary ministerial expenses for
administration, for a reasonable and
ordinary amount of time).
Section
4.08.
Tenant will
furnish to Landlord, within fifteen (15) days after
the date when any Imposition would
become delinquent (or as soon as
reasonably obtainable), official receipts of
the appropriate
taxing
authority, or other evidence satisfactory
to Landlord evidencing
the
payment thereof.
Section
4.09.
Any certificate, advice or bill of the appropriate official
designated by law to make or issue the same
or to receive payment
of
any Imposition, of nonpayment of such
Imposition shall be prima facie
evidence that such Imposition is due and
unpaid at the time of
the
making or issuance of such certificate,
advice or bill, at the
time
or date stated therein.
Section
4.10.
Inasmuch as
Seller, as the present occupant of the
Premises, has paid all bills for the use and occupancy of the
Premises, and shall continue to do so, in
accordance with the
terms
and conditions of this Lease, there
will be no adjustments as of the
Commencement Date for real estate taxes,
water charges, sewer
rents,
fuel and any other expenses which would
have been adjusted
between
Landlord and Tenant.
Section
4.11.
Tenant
shall pay, as
additional rent, any and all real estate
taxes covering the Premises.
ARTICLE 5
Late Charges
If Tenant shall fail to pay any sum
due Landlord when the
same
shall be due and payable, other than the interest hereinafter
provided for in this Article, then Tenant
shall also pay to Landlord,
promptly on demand, interest upon the
aforesaid sum at the
rate of
five percent (5%) per month calculated from
the date when said unpaid
sum was due and ending on the date when
said sum is paid.
ARTICLE 6
Insurance
Section 6.01.
From
the Commencement Date, and throughout
the term of this
Lease, Tenant shall maintain or cause to
be maintained at its
sole
cost and expense policies of insurance as
follows:
(a) All-risk insurance
for the Building as herein defined, in an
amount equal to the full replacement cost
thereof, including the full
replacement cost of Tenant's leasehold
improvements (but
excluding
Tenant's removable fixtures and personal
property) but not less
than
$1,000,000.00. Property insurance must include replacement cost
coverage which is defined as new
construction "materials" without any
deduction for depreciation. If and when
Tenant shall make
leasehold
improvements, the foregoing minimum coverage
shall be increased
to
$2,000,000.00. The amount of both of the
foregoing minimum
coverages
("base coverages") shall be increased in
July 2009 and in
July of
each subsequent year during the term hereof
by an amount equal to the
percentage increase in the Consumer Price Index, as defined in
Article 3, Section 3.01, using the same
Base Index and Current
Index
as set forth in that Section;
provided, however, that if in any such
year the percentage increase in the Consumer Price Index, as
calculated according to the Formula set forth
in Section
3.01, is
less than one percent (1%), no increase
in the base coverages
shall
be required in such year, but if in the next year or in any
subsequent year the total of such percentage increases in the
Consumer Price Index for such year, and for
any prior year in
which
no increase in coverage was required,
equals or exceeds one
percent
(1%), then notwithstanding the foregoing,
the base coverages shall be
increased in such year by a percentage equal to
the total of
such
increases.
(b) At Tenant's
option, all risk insurance in an amount equal to
the full replacement cost of Tenant's removable
fixtures and
personal
property;
(c) Broad form boiler
and machinery insurance on a comprehensive
basis, inclusive, but not limited to,
coverage for pressure vessels,
miscellaneous electrical equipment and air conditioning equipment
with such limits as from time to time
may be reasonably required by
the Landlord but not less than $500,000 per occurrence, with
endorsement for actual replacement cost
without depreciation;
(d) Loss of rents in
the amount of $500,000;
(e) Commercial general
liability insurance, including
contractual
liability, against claims for bodily injury, death and property
damage occurring in or about or arising out
of the use of the
premises or any appurtenances thereto,
including, but not limited to,
all elevators, streets, alleys, sidewalks and
vaults adjoining
or
appurtenant to the premises. Such insurance to
be not less than
$1,000,000 combined single limit for death, injury and personal
property damage. In addition, Tenant shall maintain umbrella
coverage in the amount of $2,000,000.
Section
6.02.
All policies of
insurance carried pursuant to Section 6.01 shall
name Landlord, its designated managers and agents,
as additional
insured. In addition, Tenant shall extend Tenant's liability
insurance to cover Landlord as additional
insured, and a certificate
of such coverage shall promptly be delivered to
Landlord or its
agent.
Section
6.03.
(a) All
insurance required by this Lease shall be
evidenced by valid and enforceable policies
issued by companies
(i)
licensed to do business in the State of New
York and (ii) having
a
financial size category of not less than XV
and with general
policy
holders rating of not less than "A" as rated by
"Best's" insurance
reports. Prior to the time such insurance is
first required to
be
carried by Tenant and thereafter, at least 15 days
prior to the
effective date of any such policy, Tenant
shall deliver to
Landlord
either a duplicate original of the aforesaid policies or a
certificate(s) evidencing such insurance. Said
certificate(s)
shall
contain an endorsement that such insurance
may not be canceled except
upon 30 days' written notice to
Landlord.
(b) All
such policies shall
include appropriate
clauses
pursuant to which the insurance companies (i)
waive all right of
subrogation against Tenant (or against Landlord in the case of
insurance under Section 6.01(b) with
respect to losses payable under
such policies and (ii) agree that such policies shall not be
invalidated should the insured waive in
writing prior to a
loss any
or all right of recovery against any party
for losses covered by such
policies.
Section
6.04.
Provided that
Landlord's right of full recovery under its policy
or policies aforesaid is not adversely affected or prejudiced
thereby, Landlord hereby waives any and all
right of recovery that it
might otherwise have against Tenant, its servants, agents and
employees, for loss or damage occurring to the
Building and the
fixtures, appurtenances and equipment
therein, to the extent
of the
net proceeds of insurance actually
received by Landlord as a result
of such loss or damage,
notwithstanding that such loss or damage may
result from the negligence or fault of
Tenant, its servants,
agents
or employees. Provided that Tenant's right
of full recovery
under
its aforesaid policy or policies is not adversely affected or
prejudiced thereby, Tenant hereby waives any and all right of
recovery which it might otherwise have against Landlord, its
servants, agents and employees, for loss or
damage to, Tenant's
furniture, furnishings, fixtures and other property removable by
Tenant under the provisions hereof to the
extent of the net proceeds
of insurance actually received by
Tenant as a result of such loss or
damage notwithstanding that such loss or
damage may result from
the
negligence or fault of Landlord, its
servants, agents or employees.
Section
6.05.
Tenant
shall not do, permit or suffer to be
done any act or
thing upon the Premises that would
invalidate or be in conflict with
New York standard fire and property damage insurance policies
covering the Building, and fixtur
