The failure of Landlord to give Tenant possession of the Office on the Commencement Date shall not create liability for Landlord. In the event that possession of the Office is not delivered on the Commencement Date due to the holdover of a tenant, or, if a newly constructed building, a final or temporary certificate of occupancy has not been obtained, or for any other reason which is not due to Landlord’s acts or negligence, the validity of this Lease shall not be affected. Monthly Rent hereunder shall begin on the date that possession of the Office is delivered to Tenant and shall be prorated for that portion of the month in which possession is delivered. The Termination Date shall in no event be extended if delivery of possession is delayed. If, with Landlord’s permission and consent, Tenant is to occupy the Office or another office space prior to the Commencement Date, Tenant’s occupancy is subject to all the terms, conditions and provisions of this Lease except for the payment of Rent and Additional Rent. The intent of this Paragraph is to constitute “…an express provision to the contrary…” contained in New York Real Property Law Section 223-a.
Tenant shall be responsible for any and all damage to the Office or any other part of the Premises resulting from Tenant’s willful acts or negligence or the willful acts or negligence of Tenant’s agents, employees, invitees or licensees or which may arise from any work done by of for Tenant or by Tenant’s business operations. Tenant shall also be responsible for any damage to the Premises caused by Tenant’s moving or removal of furniture, fixtures and/or equipment. Tenant shall only use contractor and/or sub-contractors for these repairs which have been approved by Landlord in every instance. In the event that Tenant fails or refuses to make said repairs , Landlord may do so at Tenant’s expense which shall be Additional Rent. Landlord shall maintain in proper order and repair the exterior of the Premises as well as the common areas and the utilities servicing the Premises. Tenant shall give immediate notice to Landlord of any defect or interruption of service or condition. The responsibility of Tenant to pay Rent and Additional Rent shall not be reduced or abated by reason of injury to business or annoyance to employees of Tenant caused by repairs, alterations or improvements to the Premises or the Office. Likewise there shall be no liability on the part of the Landlord for such injury or annoyance as aforesaid. Should Landlord be in default under this Paragraph or any other Paragraph of this lease, Tenant’s only remedy is to sue Landlord for breach of this Lease.
condemnation or eviction, in whole or in part. Such appeal or objection by Tenant must be undertaken in an expeditious manner and at no cost to Landlord. Tenant shall do or cause to be done any act contrary to all laws, rules and regulations or which would violate any provision of Landlord’s policies of insurance or which would subject Landlord to liability to any person or entity for personal and/or property damages. Tenant shall not keep any substance in the Office which is in violation of any law, rule and/or regulation which would result in a cancellation of Landlord’s policies of insurance. Tenant shall not use the Office in such a manner that the premiums for Landlord’s policies of insurance would be increased over that rate in effect at the time the Tenant obtains possession of the Office. Any cost, expense, fine, damages and/or penalties incurred by Landlord as a result of Tenant’s violation of any provision in this Paragraph shall be borne by Tenant and shall be paid by Tenant as Additional Rent. In any action or proceeding, the schedule of premiums issued by Landlord’s insurance carrier shall be conclusive evidence of the rate therefore. Tenant shall place a load on the floor of the Office contrary to the maximum floor area load permitted by law and the certificate of occupancy. The placement of heavy machines, mechanical equipment and/or office equipment shall be approved by Landlord and shall be placed in such manner, in Landlord’s sole judgment, by Tenant to avoid and prevent vibrations, noise and annoyance to other tenants.
(a) Additional Rent. In addition to the monthly payment of Base Rent, commencing on the Rent Commencement Date, Tenant shall pay to Landlord Additional Rent on a monthly basis as follows.
(b) Estimate of Tenants Share of Expenses. Landlord shall give Tenant an annual estimate for Additional Rent. Tenant shall pay one-twelfth (1/12) of the estimated amount of Additional Rent with each monthly payment of Base Rent during the Term of the Lease. At the end of each calendar year, Landlord shall give Tenant a statement (the Tenants Additional Rent Statement) showing the Additional Rent for the prior Year. Any underpayment by Tenant shall be paid to Landlord within thirty (30)days after delivery of the Tenants Additional Rent Statement, notwithstanding that such statement may be delivered subsequent to the expiration or termination of this Lease; any overpayment shall be credited against the next installment of Rent due, provided that any overpayment shall be paid to Tenant within thirty (30)days after the Expiration Date.
(b) Reduction in Base and Additional Rent. In the event of a fire or other casualty which does not result in a termination of the Lease, Base Rent and Additional Rent shall be proportionately reduced based on the portion of the Property, Building, Premises and/or Additional Property for Parking, rendered unusable during the period of repair or restoration, and Landlord shall repair or restore the Property, Building, Premises and Additional Property for Parking, to the extent of available proceeds or awards from such casualty. Landlord shall not be required to repair or restore any damage to Tenants Property or any Alterations.
(b) Additional Rent. Tenant shall pay to Landlord, as Additional Rent, an amount equal to Tenants Proportionate Share of (i)Taxes (as such term is hereinafter defined) payable by Landlord during the Term, plus (it) Operating Expenses (as such term is hereinafter defined) payable by Landlord during the Term.
(b) Landlord shall provide HVAC to the Premises and to the common areas of the Property at temperatures reasonably determined by Landlord for normal occupancy and general office use during normal business hours. In the event Tenant utilizes any machines or equipment which affect the temperatures otherwise maintained by Landlords HVAC system, or in the event Tenant installs any lighting in excess of building standards, Landlord reserves the right to install supplemental air conditioning units or other supplemental equipment in the Premises, and the cost of installation, operation and maintenance thereof shall be payable by Tenant as Additional Rent. In the event the Premises contain or are serviced by any heating or air conditioning equipment which is above building standard, Tenant shall accept such equipment in its present AS IS condition, acknowledging that all costs in connection with the operation, maintenance, repair and replacement of such equipment shall be borne and payable by Tenant as Additional Rent.
(d) Additional Rent. “Additional Rent” means all sums, charges or amounts of whatever nature to be paid by Tenant to L.A. Prep in accordance with the provisions of this Lease in addition to Base Rent including the Health and Safety Fee, the Utilities Charges and charges related to the use by Tenant of Storage Areas, Leased Parking, Office/Co-working Areas, Equipment, Test Kitchen, Catering Kitchen and any other amounts due to L.A. Prep for use of space or services at the Facility as specified on the Rental Rate Card (as defined below). Tenant agrees that Additional Rent shall constitute Rent under this Lease. Any Additional Rent shall become payable, unless otherwise provided herein, upon the earlier of the date specified by L.A. Prep or the next due installment of Base Rent. The Additional Rents will be based on usage by Tenant and the rental amounts or other charges or fees (and any other terms and conditions of use) will be specified on the pricing sheet attached hereto or otherwise provided to Tenant by L.A. Prep from time to time which amounts or other charges may be changed by L.A. Prep in its discretion by notice to Tenant (as in effect from time to time, the “Rental Rate Card”).
4.2.4DETERMINATION OF ADDITIONAL RENT.Additional Rent shall be determined annually, LANDLORD shall, as soon as possible after the determination of the Additional Rent for any calendar year, but no later than September 30 of the following calendar year, furnish TENANT a statement in writing setting forth the amount of Additional Rent and the basis for the calculations thereof.
4.2.5PAYMENT OF ADDITIONAL RENT.Within ten (10) days of TENANT's receipt of such statement, TENANT shall pay to LANDLORD (i) all Additional Rent for the previous calendar year not theretofore paid and (ii) the product of 1/12 of the Additional Rent for the previous calendar year and the number of lapsed months in the current calendar year less Additional Rent already paid during such months, for application on the Additional Rent payable with respect to the current calendar year. Until further notice of change in Additional Rent, there shall be due from TENANT on the twenty-fifth day of each calendar month an amount equal to one-twelfth (1/12) of the Additional Rent set forth in such notice, to be applied against the Additional Rent owed for the calendar year or years in which such payments are made.
4.Subtenant’s Additional Rent. Beginning on November 1, 2017, Subtenant shall pay to Sublandlord, as additional rent (the “Subtenant’s Additional Rent”), an amount equal to its proportionate share of the Additional Rent Sublandlord is required to pay under the Master Lease. The proportionate share to be paid by Subtenant shall be a fraction, the numerator of which is the rentable area of the Premises (5,437 square feet) and the denominator of which is the rentable Area of the Building (144,048 square feet) and is equal to 3.77%. Subtenant’s Additional Rent shall be prorated to reflect any partial year or month that the Premises are subject to this Sublease. Sublandlord shall give Subtenant copies of all relevant statements and bills received by Sublandlord pursuant to the applicable provisions of the Master Lease, together with a statement of the amount of Subtenant’s Additional Rent, if any, which Subtenant is required to pay. Subtenant shall pay all such Subtenant’s Additional Rent within thirty (30) days of receipt of such statement. Subtenant shall also pay to Sublandlord, as Subtenant’s Additional Rent, all charges for any additional services provided to Subtenant, including, without limitation, charges and fees for alterations, if any, and after hours heating and air conditioning services. Subtenant’s obligations to pay Subtenant’s Additional Rent shall survive the termination or expiration of this Sublease.
(b)This Sublease is subject and subordinate to the Overlease and to all matters to which the Overlease is or shall be subordinate, and in the event of termination, re-entry or dispossess by Overlandlord under the Overlease, Subtenant shall, at Overlandlords option, attorn to Overlandlord pursuant to the then executory provisions of this Sublease, and so long as Subtenant is not in Default under this Sublease, Overlandlord hereby agrees not to disturb Subtenants subtenancy of the Sublease Premises. Notwithstanding the foregoing, Overlandlord shall not (i)be liable for any previous act or omission of Sublandlord under this Sublease, (ii)be subject to any offset not expressly provided in this Sublease which shall have theretofore accrued to Subtenant against Sublandlord, or (iii)be bound by any previous modification of this Sublease or by any previous prepayment of more than one (1)months Fixed Rent or Additional Rent. Subtenant covenants and agrees to execute and deliver, at any time and from time to time, upon the request of Sublandlord or Overlandlord, any instrument which may be necessary or appropriate to evidence such attornment.
7.Additional Rent. (a)In addition to the Fixed Rent hereunder, Subtenant covenants to pay as Additional Rent all monetary obligations of any kind Subtenant incurs directly with the Overlandlord under the Overlease, including, but not limited to, overtime charges for heating and air conditioning, window cleaning or other services, any similar or other obligations incurred from time to time by Subtenant, and any charges in connection with the installation and operation of Subtenants supplemental HVAC, if any. Subtenant acknowledges and agrees that the Fixed Rent set forth herein does not include Additional Rent, including the Operating Expense Charge, Subtenants Utility Cost Share of the cost of Utilities provided to the Sublease Premises, Electricity Charges, overtime charges for heating and air conditioning or for cleaning, janitorial, rubbish removal and other such services. With respect to such overtime or extra services, Sublandlord is not responsible for providing such services, and Subtenant shall be solely responsible for requesting such services directly from Overlandlord and for paying Overlandlord for the same, or for having Overlandlord approve independent contractors for same to be paid directly by Subtenant.
(F) Landlord shall calculate Tenants annual pro-rata share of Real Estate Tax additional rent and Tenant shall pay such additional rent within thirty (30)days after the Landlord sends the Tenant a bill for said additional rent. Landlord shall provide Tenant with a copy of the real estate tax bill. At Landlords option, the Landlord may collect such additional rent by requiring Tenant to pay each month one-twelfth (1/12) of Tenants annual Real Estate Tax additional rent.
(h) Additional Rent. All amounts payable by Tenant as or on account of Additional Rent shall be deemed to be additional rent becoming due under this lease.
5. Delivery of Possession. (a) Landlord has delivered possession of the Premises to Tenant to allow Tenant to complete the initial improvements necessary to prepare the Premises for occupancy which improvements are described in Exhibit C (Initial Improvements). During the period of possession prior to the Commencement Date, Tenant shall be bound by all of the terms, conditions and provisions of this Lease except the obligations to pay Base Rent and Additional Rent. Tenant shall cause all of the Initial Improvements to be constructed (the Work) in a good and workmanlike manner, lien-free, and in accordance with the workletter attached as Exhibit C. Tenants Initial Improvements shall be constructed at Tenants sole cost and expense; provided, however, Tenant shall be entitled to the Tenant Improvement Allowance to be used by Tenant for the construction of Tenants Initial Improvements. The Tenant Improvement Allowance shall be disbursed in accordance with Exhibit D.
(b) Additional Rent. In addition to Base Rent, Tenant agrees to pay to Landlord as additional rent (“Additional Rent”): (i)Tenant’s Share of “Operating Expenses” (as defined in Section5), and (ii)any and all other amounts Tenant assumes or agrees to pay under the provisions of this Lease, including, without limitation, any and all other sums that may become due by reason of any default of Tenant or failure to comply with the agreements, terms, covenants and conditions of this Lease to be performed by Tenant, after any applicable notice and cure period.
15. Mechanic’s Liens. Tenant shall discharge, by bond or otherwise, any mechanic’s lien filed against the Premises or against the Project for work claimed to have been done for, or materials claimed to have been furnished to, Tenant within 15 days after Tenant receives written notice of the filing thereof, at Tenant’s sole cost and shall otherwise keep the Premises and the Project free from any liens arising out of work performed, materials furnished or obligations incurred by Tenant. Should Tenant fail to discharge any lien described herein, Landlord shall have the right, but not the obligation, to pay such claim or post a bond or otherwise provide security to eliminate the lien as a claim against title to the Project and the cost thereof shall be immediately due from Tenant as Additional Rent. If Tenant shall lease or finance the acquisition of office equipment, furnishings, or other personal property of a removable nature utilized by Tenant in the operation of Tenant’s business, Tenant warrants that any Uniform Commercial Code Financing Statement filed as a matter of public record by any lessor or creditor of Tenant will upon its face or by exhibit thereto indicate that such Financing Statement is applicable only to removable personal property of Tenant located within the Premises. In no event shall the address of the Project be furnished on the statement without qualifying language as to applicability of the lien only to removable personal property, located in an identified suite held by Tenant.
(a) Payment By Landlord; Interest. Upon a Default by Tenant hereunder, Landlord may, without waiving or releasing any obligation of Tenant hereunder, make such payment or perform such act to the extent necessary to sure such Default. All sums so paid or incurred by Landlord, together with interest thereon, from the date such sums were paid or incurred, at the annual rate equal to 12%per annum or the highest rate permitted by law (the “Default Rate”), whichever is less, shall be payable to Landlord on demand as Additional Rent. Nothing herein shall be construed to create or impose a duty on Landlord to mitigate any damages resulting from Tenant’s Default hereunder.
a.Additional Rent. As additional consideration for this Lease, Tenant shall, for the Initial Term and any Option Period of this Lease, and without any setoff or deduction therefrom, pay directly, before delinquency, all costs of maintaining and operating the Premises, and Landlord’s costs of owning the Premises. Said costs shall be referred to herein as “Operating Costs” and are hereby defined to include but not be limited to, all real estate taxes and assessments on the Premises, heat, cooling, utilities, insurance (including rent insurance), fiber internet, security, all taxes and other governmental impositions, including but not limited to gross receipts taxes and taxes on rentals relating to the Premises, all maintenance and repair expenses, whether or not said maintenance or repair expenses may be capitalized for federal income tax purposes, any equipment rental and any and all other costs of operation, whether ordinary or extraordinary, provided, however, that operating costs of the Premises shall not include (i) leasing commissions and (ii) payments of principal and interest on any mortgages, deeds of trust or other encumbrances upon the Premises. Real estate taxes for any calendar year shall be deemed to be the taxes due and payable in the respective calendar years, even though the levy or assessment thereof may be for a different fiscal year, and shall include general real estate taxes, special assessments and any other taxes that may be imposed in lieu of or partially in lieu of general real estate taxes.
b.Utilities. All utilities and services necessary for the operation of the Premises and Lessee’s business, other than those specifically referenced as Additional Rent, shall be paid directly by Lessee and are not included as Additional Rent. The Lessee shall pay, prior to delinquency or any assessment of late charges, for all such utilities and other services used or necessary in the operation of the Premises, including but not limited to cable, janitorial telephone, as well as all maintenance charges for which Lessee is responsible pursuant to Section 17 hereunder. All such utilities, services and maintenance items shall be in Lessee’s name and shall be paid directly by Lessee. Meters for all such utilities shall be installed at Lessor’s sole cost and expense. Lessor shall not be responsible for any disruptions to utilities or services.
(b) Additional Rent. Tenant hereby agrees to pay as Additional Rent fifty (50%) of the cost of routine landscaping and snow removal incurred by Landlord with respect to the Building, but not any capital upgrades. The Additional Rent provided to be paid in this Section shall be estimated by Landlord and one-twelfth (1/12) of such estimate shall be paid in advance by Tenant on the first day of each month after Tenant’s receipt of Landlord’s estimate without further demand or any deduction or set-off, except as provided in this Lease. When Landlord ascertains the actual costs for a calendar year, Landlord shall so notify Tenant and Tenant shall pay to Landlord on demand the amount, if any, equal to the difference between the amount due for such year pursuant to this Section and the amount previously paid hereunder. Should the estimated payments have exceeded the actual amount due, said excess shall be held by Landlord and applied to the next monthly payment of Additional Rent provided to be paid under this Section, and, if necessary, each monthly payment thereafter until fully exhausted. Tenant shall not be entitled to receive interest on any Additional Rent paid hereunder. No delay by Landlord in submitting any statement shall constitute a waiver of Landlord’s right to submit such statement and/or receive any Additional Rent pursuant hereto.
29. If Tenant requires, uses or consumes water for any purpose in addition to ordinary lavatory purposes (of which fact Owner shall be the sole judge) Owner may install a water meter and thereby measure Tenant's water consumption for all purposes. Tenant shall pay Owner for the cost of the meter and the cost of the installation. Throughout the duration of Tenant's occupancy, Tenant shall keep said meter and installation equipment in good working order and repair at Tenant's own cost and expense. In the event Tenant fails to maintain the meter and installation equipment in good working order and repair (of which fact Owner shall be the sole judge) Owner may cause such meter and equipment to be replaced or repaired, and collect the cost thereof from Tenant as additional rent. Tenant agrees to pay for water consumed, as shown on said meter as and when bills are rendered, and in the event Tenant defaults in the making of such payment, Owner may pay such charges and collect the same from Tenant as additional rent. Tenant covenants and agrees to pay, as additional rent, the sewer rent, charge or any other tax, rent or levy which now or hereafter is assessed, imposed or a lien upon the demised premises, or the realty of which they are a part, pursuant to any law, order or regulation made or issued in connection with the use, consumption, maintenance or supply of water, the water system or sewage or sewage connection or system. If the building, the demised premises, or any part thereof, is supplied with water through a meter through which water is also supplied to other premises, Tenant shall pay to Owner, as additional rent, on the first day of each month,% ($) of the total meter charges as Tenant's portion. Independently of, and in addition to, any of the remedies reserved to Owner hereinabove or elsewhere in this lease. Owner may sue for and collect any monies to be paid by Tenant, or paid by Owner, for any of the reasons or purposes hereinabove set forth.
32. Tenant has deposited with Owner the sum of $4,200.00 as security for the faithful performance and observance by Tenant of the terms, provisions and conditions of this lease. It is agreed that in the event Tenant defaults in respect of any of the terms, provisions and conditions of this lease, including, but not limited to, the payment of rent and additional rent. Owner may use, apply or retain the whole or any part of the security so deposited to the extent required for the payment of any rent and additional rent, or any other sum as to which Tenant is in default, or for any sum which Owner may expend, or may be required to expend, by reason of Tenant's default in respect of any of the terms, covenants and conditions of this lease, including but not limited to, any damages or deficiency in the re-letting of the demised premises, whether such damages or deficiency accrued before or after summary proceedings or other re-entry by Owner. In the case of every such use, application or retention. Tenant shall, within five (5) days after demand, pay to Owner the sum so used, applied or retained which shall be added to the security deposit so that the same shall be replenished to its former amount In the event that Tenant shall fully and faithfully comply with all of the terms, provisions, covenants and conditions of this lease, the security shall be returned to Tenant after the date fixed as the end of the lease, and after delivery of entire possession of the demised premises to Owner. In the event of a sale of the land and building or leasing of the building, of which the demised premises form a part. Owner shall have the right to transfer the security to the vendee or lessee, and Owner shall thereupon be released by Tenant from all liability for the return of such security; and Tenant agrees to look to the new Owner solely for the return of said security, and it is agreed that the provisions hereof shall apply to every transfer or assignment made of the security to a new Owner. Tenant further covenants that it will not assign or encumber, or attempt to assign or encumber, the monies deposited herein as security, and that neither Owner nor its successors or assigns shall be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance.
34. The term "Owner" as used in this lease means only the owner of the fee or of the leasehold of the building, or the mortgagee in possession for the time being, of the land and building (or the owner of a lease of the building or of the land and building) of which the demised premises form a part, so that in the event of any sale or sales or conveyance, assignment or transfer of said land and building or of said lease, or, in the event of a lease of said building, or of the land and building, the said Owner shall be and hereby is entirely freed and relieved of all covenants and obligations of Owner hereunder, and it shall be deemed and construed without further agreement between the parties or their successors in interest, or between the parties and the purchaser, grantee, assignee or transferee at any such sale, or the said lessee of the building, or of the land and building, that the purchaser or the lessee of the building has assumed and agreed to carry out any and all covenants and obligations of Owner hereunder. The words "re-enter" and "re-entry" as used in this lease are not restricted to their technical legal meaning. The term "rent" includes the annual rental rate whether so expressed or expressed in monthly installments, and "additional rent." "Additional rent" means all sums which shall be due to Owner from Tenant under this lease, in addition to the annual rental rate. The term "business days" as used in this lease, shall exclude Saturdays, Sundays and all days observed by the State or Federal Government as legal holidays, and those designated as holidays by the applicable building service union employees service contract, or by the applicable Operating Engineers contract with respect to HVAC service. Wherever it is expressly provided in this lease that consent shall not be unreasonably withheld, such consent shall not be unreasonably delayed.
2.Additional Rent. In consideration of Landlord’s additional improvement expenditures, Tenant will pay to Landlord, as Additional Rent due under the Lease, the sum of $353,876.86, payable within two (2)business days after the Effective Date of this Third Amendment. Notwithstanding any contrary provision in the Lease, such payment of Additional Rent shall be deemed to be timely and no interest or late charges are due with respect thereto. Furthermore, the Additional Rent satisfies in full, and forever discharges, any claims by Landlord relating to compensation for additional improvement expenditures made by Landlord prior to the Effective Date of this Third Amendment.
19.2. Should Tenant fail to discharge or bond against any lien of the nature described in Section19.1, Landlord may, at Landlords election, pay such claim or post a statutory lien bond or otherwise provide security to eliminate the lien as a claim against title, and Tenant shall immediately reimburse Landlord for the costs thereof as Additional Rent. Tenant shall indemnify, save, defend (at Landlords option and with counsel reasonably acceptable to Landlord) and hold the Landlord Indemnitees harmless from and against any Claims arising from any such liens, including any administrative, court or other legal proceedings related to such liens.
23.4. The insurance required of Tenant by this Article shall be with companies at all times having a current rating of not less than A- and financial category rating of at least ClassVII in A.M. Bests Insurance Guide current edition. Tenant shall obtain for Landlord from the insurance companies/broker or cause the insurance companies/broker to furnish certificates of insurance evidencing all coverages required herein to Landlord. Landlord reserves the right to require complete, certified copies of all required insurance policies including any endorsements. No such policy shall be cancelable or subject to reduction of coverage or other modification or cancellation except after twenty (20)days prior written notice to Landlord from Tenant or its insurers (except in the event of non-payment of premium, in which case ten (10)days written notice shall be given). All such policies shall be written as primary policies, not contributing with and not in excess of the coverage that Landlord may carry. Tenants required policies shall contain severability of interests clauses stating that, except with respect to limits of insurance, coverage shall apply separately to each insured or additional insured. Tenant shall, prior to the expiration of such policies, furnish Landlord with renewal certificates of insurance or binders. Tenant agrees that if Tenant does not take out and maintain such insurance, Landlord may (but shall not be required to) procure such insurance on Tenants behalf and at its cost to be paid by Tenant as Additional Rent. Commercial General Liability, Commercial Automobile Liability, Umbrella Liability, and Pollution Legal Liability insurance as required above shall name Landlord, BioMed Realty, L.P., and BRE Edison Parent L.P., and their respective officers, employees, agents, general partners, members, subsidiaries, affiliates and Lenders (Landlord Parties) as additional insureds as respects liability arising from work or operations performed by or on behalf of Tenant, Tenants use or occupancy of Premises, and ownership, maintenance or use of vehicles by or on behalf of Tenant.
Tenant shall indemnify and save harmless Owner as well as the Building’s managing agent, if any, any Lessor and any Mortgagee (collectively, the “Indemnitees”), from and against any and all claims of whatever nature against Owner and/or the Indemnitees arising from (i) any act, omission or negligence of Tenant, its contractors, licensees, agents, servants, invitees or employees, (ii) any accident, injury or damage whatsoever caused to any person or to the property of any person and occurring during the Term in or about the Premises, and (iii) any breach, violation or non-performance of any term, covenant, condition or agreement in this Lease set forth on the part of Tenant, or parties claiming by, through or under Tenant to be fulfilled, kept, observed or performed. This indemnity and hold harmless agreement shall include indemnity from and against any and all liability, loss, cost, damage and expense of any kind or nature incurred in or in connection with any such claim or proceeding brought thereon and the defense thereof including, without limitation, attorneys’ fees and disbursements. Owner, from time to time, may submit to Tenant copies of Owner’s legal bills in connection with the foregoing, and Tenant, upon receipt of such bills, shall promptly pay to Owner the amount shown thereon as Additional Rent. This indemnity and hold harmless agreement shall survive the expiration or earlier termination of this Lease.
3.01 Tenant shall pay fixed annual rent without electricity (the “Fixed Annual Rent”) at the rates provided for in the schedule annexed hereto and made a part hereof as “Exhibit B” in equal monthly installments in advance on the first (1st) day of each calendar month during the Term, except that the first (1st) monthly installment of Fixed Annual Rent shall be paid by Tenant upon its execution of this Lease. All sums other than Fixed Annual Rent payable hereunder shall be deemed to be “Additional Rent” and shall be payable on demand, unless other payment dates are hereinafter provided. Tenant shall pay all Fixed Annual Rent and Additional Rent due hereunder at the office of Landlord or such other place as Landlord may designate, payable in United States legal tender, by cash, or by good and sufficient check drawn on a New York City bank which is a member of the New York Clearing House or a successor thereto, and without any set off or deduction whatsoever. The term “Rent” as used in this Lease shall mean Fixed Annual Rent and Additional Rent. Landlord may apply payments made by Tenant towards the payment of any item of Fixed Annual Rent and/or Additional Rent payable hereunder notwithstanding any designation by Tenant as to the items against which any such payment should be credited.
Section 27.01. Landlord waives all lien, right, interest and claim it might otherwise have in and waives its right of distraint of, the machinery, fixtures and other property of the Tenant, and in any other property of any nature whether on or off the Demised Premises, belonging to the Tenant. The provisions of this Section are intended to apply to the Landlord’s common law (if any) and statutory right of distraint because of failure to pay Term Basic Rent or Additional Rent. In the event Landlord is requested to execute a lien waiver or similar document evidencing that Landlord does not have a lien on Tenant’s inventory, equipment or other personalty, then Tenant agrees to reimburse Landlord, as Additional Rent, for the reasonable legal fees and costs incurred by Landlord in connection with reviewing and responding to such request, not to exceed One Thousand Dollars ($1,000.00).
11.02 Before proceeding with any Tenants Changes, Tenant shall submit to Landlord full plans and specifications (if such plans and specifications are customarily prepared) and all changes and revisions thereto, for the work to be done for Landlords approval in accordance with Section11.01 hereof, Landlord reserves the right to engage an architect and/or engineer to review Tenants Changes. Landlord shall have twenty (20) days to respond to any such request. Should Landlord fail to respond within said twenty (20) days. Tenant may give Landlord a second five (5)days written notice containing the same request. Should Landlord then fail to respond, Landlord shall be deemed to have consented to Tenants request. In the event that Landlord does so Tenant shall reimburse Landlord for the reasonable cost of such engagement as Additional Rent. Landlord may, as a condition of its approval, require Tenant to make reasonable revisions in and to the plans and specifications.
5) Following the modification of the Security System, Landlord has been advised that DGA will increase its monitoring service charges to Landlord in the sum of $125.00 per month. Tenant consents to Landlord billing that additional charge to Tenant on a monthly basis as additional rent. Should DGA or any replacement company thereafter ever increase the charge associated with Security System monitoring thereafter, Landlord shall, after providing Tenant reasonably acceptable evidence of any such increased charge, increase the additional rent payable by Tenant on account thereof by the same percentage that DGA or any replacement company increased the overall charge to Landlord.
Landlord shall sign any applications reasonably necessary and shall otherwise cooperate with Tenant, at no expense to Landlord in connection with matters arising in connection with Tenants Changes, under this Lease or with respect to the use and occupancy of the Demised Premises. Landlord shall be entitled to engage an architect and/or engineer and/or consultant to review the applications and proposed Tenants Changes at Tenants expense as additional rent. Landlord agrees to cap any such expense at $5,000.00 for the first year of the Term subject to increases in future years based upon changes in the Consumer Price Index for all Urban Consumers New York all Items 1982-1984=100. Tenants Changes shall be performed in such manner as not to unreasonably interfere with or delay and (unless Tenant shall indemnify Landlord therefor to the latters reasonable satisfaction) as not to impose any additional expense upon Landlord in the construction, maintenance or operation of the Building or any portion thereof. Throughout the performance of Tenants Changes, Tenant, at its expense, shall carry, or cause to be carried, workers compensation insurance in statutory limits and general liability insurance for any occurrence in or about the Building as set forth in herein, in which Landlord and its managing agent -Cape Advisors,Inc. shall be named as parties insured, in such limits as Landlord may reasonably prescribe, with insurance reasonably satisfactory to Landlord. Tenant shall furnish Landlord with satisfactory evidence that such insurance is in effect at or before the commencement of Tenants Changes and, on request, at reasonable intervals thereafter during the continuance of Tenants Changes.
(b) All insurance required to be carried by Tenant hereunder shall be issued by one or more insurance companies reasonably acceptable to Landlord, licensed to do business in the State in which the Leased Premises is located and having an AM Bests rating of A IX or better. Tenant shall promptly provide notice to Landlord if Tenant is notified that coverage is materially changed, canceled or permitted to lapse. In addition, Tenant shall name Landlord, Landlords managing agent, and any mortgagee requested by Landlord, as additional insureds under Tenants Commercial General Liability Insurance, excess and umbrella policies (but only to the extent of the limits required hereunder). On or before the Commencement Date (or the date of any earlier entry or occupancy by Tenant), and thereafter, prior to the expiration of each such policy, Tenant shall furnish Landlord with certificates of insurance in the form of ACORD 25 (or other evidence of insurance reasonably acceptable to Landlord), evidencing all required coverages, and that with the exception of Workers Compensation insurance, such insurance is primary and non-contributory. Upon Tenants receipt of a request from Landlord, Tenant shall provide Landlord with copies of all insurance policies, including all endorsements, evidencing the coverages required hereunder. If Tenant fails to carry such insurance and furnish Landlord with such certificates of insurance or copies of insurance policies (if applicable), Landlord may, upon ten (10)business days notice to Tenant, obtain such insurance on Tenants behalf and Tenant shall reimburse Landlord upon demand for the cost thereof as Additional Rent. Landlord reserves the right from time to time (but not more than once every five (5)years) to require Tenant to obtain higher minimum amounts or different types of insurance if it becomes customary for other landlords of similar buildings in the area to require similar sized tenants in similar industries to carry insurance of such higher minimum amounts or of such different types.
Section4.01. Additional Rent. All charges, costs and amounts payable by Tenant under this Lease other than Base Rent are called Additional Rent. The term Rent shall mean Base Rent and Additional Rent. Notwithstanding any provision in this Lease to the contrary, Additional Rent will begin to accrue beginning on the Commencement Date and shall be payable in advance based upon the amount set forth in an Estimate (as defined below) but subject to adjustment after the end of the year on the basis of the actual amounts for such year. The Additional Rent set forth in the Estimate, subject to adjustment as provided in Section4.11 herein, shall be due and payable at the same time and in the same manner as the time and manner of the payment of monthly Base Rent as provided herein.
Elevators, Heat, Cleaning: 31. As long as Tenant is not in default under any the covenants of this lease, beyond the applicable grace period provided in this lease for the curing of such defaults. Owner shall: (a)provide necessary passenger elevator facilities on business days from 8 a.m. to 6 p.m. and on Saturdays from 8 a.m. to 1 p.m.; (b) if freight elevator service is provided, same shall be provided only on regular business days, Monday through Friday inclusive, and on those days only between the hours of 9 a.m. and 12 noon and between 1 p.m. and 5 p.m.; (c) furnish heat, water and other services supplied by Owner to the demised premises, when and as required by law, on business days from 8 a.m. to 6 p.m. and on Saturdays from 8 a.m. to 1 p.m.; (d) clean the public halls and public portions of the building which are used in common by all tenants. Tenant shall, at Tenants expense, keep the demised premises, including the windows, clean and in order, to the reasonable satisfaction of Owner, and for that purpose shall employ person or persons, or corporations approved by Owner. Tenant shall pay to Owner the cost of removal of any of Tenants refuse and rubbish from the building. Bills for the same shall be rendered by Owner to Tenant at such time as Owner may elect, and shall be due and payable hereunder, and the amount of such bills shall be deemed to be, and be paid as additional rent. Tenant shall, however, have the option of independently contracting for the removal of such rubbish and refuse in the event that Tenant does not wish to have same done by employees of Owner. Under such circumstances, however, the removal of such refuse and rubbish by others shall be subject to such rules and regulations as, in thejudgment of Owner, are necessary for the proper operation of the building, Owner reserves the right to stop service of the heating, elevator, plumbing and electric systems, when necessary, by reason of accident or emergency, or for repairs, alterations, replacements or improvements, which in the judgment of Owner are desirable or necessary to be made, until said repairs, alterations, replacements or improvements shall have been completed. If the building of which the demised premises are a part supplies manually operated elevator service, Owner may proceed diligently with alterations necessary to substitute automatic control elevator service without in any way affecting the obligations of Tenant hereunder.
16.1.Tenant shall pay for all water (including the cost to service, repair and replace reverse osmosis, de-ionized and other treated water), gas, heat, light, power, telephone, internet service, cable television, other telecommunications and other utilities supplied to the Premises, together with any fees, surcharges and taxes thereon. If any such utility is not separately metered to Tenant, Tenant shall pay Tenants Adjusted Share of all charges of such utility jointly metered with other premises as Additional Rent or, in the alternative, Landlord may, at its option, monitor the usage of such utilities by Tenant and charge Tenant with the cost of purchasing, installing and monitoring such metering equipment, which cost shall be paid by Tenant as Additional Rent. Landlord may base its bills for utilities on reasonable estimates; provided that Landlord adjusts such billings promptly thereafter or as part of the next Landlords Statement to reflect the actual cost of providing utilities to the Premises. To the extent that Tenant uses more than Tenants Pro Rata Share of any utilities, then Tenant shall pay Landlord for Tenants Adjusted Share of such utilities to reflect such excess. In the event that the Building or Project is less than fully occupied during a calendar year, Tenant acknowledges that Landlord may extrapolate utility usage that varies depending on the occupancy of the Building or Project (as applicable) to equal Landlords reasonable estimate of what such utility usage would have been had the Building or Project, as applicable, been ninety-five percent (95%) occupied during such calendar year; provided, however, that Landlord shall not recover more than one hundred percent (100%) of the cost of such utilities. Tenant shall not be liable for the cost of utilities supplied to the Premises attributable to the time period prior to the Term Commencement Date; provided, however, that, if Landlord shall permit Tenant possession of the Premises prior to the Term Commencement Date and Tenant uses the Premises for any purpose other than as expressly permitted in Section4.3, then Tenant shall be responsible for the cost of utilities supplied to the Premises from such earlier date of possession.
(a) Payment By Landlord; Interest. Upon a Default by Tenant hereunder, Landlord may, without waiving or releasing any obligation of Tenant hereunder, make such payment or perform such act. All sums so paid or incurred by Landlord, together with interest thereon, from the date such sums were paid or incurred, at the annual rate equal to 12% per annum or the highest rate permitted by law (the Default Rate), whichever is less, shall be payable to Landlord on demand as Additional Rent. Nothing herein shall be construed to create or impose a duty on Landlord to mitigate any damages resulting from Tenants Default hereunder.
All insurance required to be carried by Tenant hereunder shall be issued by one or more insurance companies reasonably acceptable to Landlord, licensed to do business in the State in which the Leased Premises is located and having an AM Best's rating of A IX or better, and Tenantwill endeavor to provide no less than thirty (30) days' prior written notice to Landlord of any material change, cancellation, or lapse in the aforementioned coverage.On or before the Commencement Date (or the date of any earlier entry or occupancy by Tenant), and thereafter, within thirty (30) days prior to the expiration of each such policy, Tenant shall furnish Landlord with certificates of insurance in the form of ACORD 25 (or other evidence of insurance reasonably acceptable to Landlord), evidencing all required coverages (including all required endorsements), and that with the exception of Worker's Compensation insurance, such insurance is primary and non-contributory.If Tenant fails to carry such insurance and furnish Landlord with such certificates of insurance, Landlord may obtain such insurance on Tenant's behalf and Tenant shall reimburse Landlord upon demand for the cost thereof as Additional Rent. Upon Tenant's receipt of a request from Landlord, Tenant shall provide Landlord with copies of all endorsements, evidencing the coverages required hereunder.Landlord reserves the right from time to time to require Tenant to obtain higher minimum amounts or different types of insurance if it becomes customary for other landlords of similar buildings in the area to require similar sized tenants in similar industries to carry insurance of such higher minimum amounts or of such different types. By requiring insurance herein, Landlord does not represent that the coverage and limits will necessarily be adequate to protect Tenant, and such coverage and limits shall not be deemed as a limitation on Tenant’s liability under the indemnities granted to Landlord in this Lease. If Tenant’s policies do not contain the standard ISO separation of insureds provision, or a substantially similar clause, they shall be endorsed to provide cross-liability coverage. There shall be no provisions that limit Landlord’s ability to pursue a claim against Tenant.
water. If Tenant shall require water or electric current in excess of that usually furnished or supplied for use of the Premises as normal office use, Tenant shall procure the prior written consent of Landlord for the use thereof, which Landlord may refuse, and if Landlord does consent, Landlord may cause a water meter or electric current meter to be installed so as to measure the amount of such excess water and electric current. The cost of any such meters shall be paid for by Tenant as Additional Rent.Tenant agrees to pay as Additional Rent to Landlord promptly upon demand therefor, the cost of all such excess water and electric current consumed (as shown by said meters, if any, or, if none, as reasonably estimated by Landlord) at the rates charged for such services by the local public utility or agency, as the case may be, furnishing the same, plus any additional expense incurred in keeping account of the water and electric current so consumed.
2.3 ADDITIONAL RENT All sums required to be paid by Tenant pursuant to the provisions of this Lease, other than the Annual Fixed Rent, shall be referred to as Additional Rent. Additional Rent will include but not be limited to the following: Tenants pro rata share of all Insurance Premiums, Real Estate Taxes, and Common Area Maintenance. For purposes hereof the following definitions shall apply.
5. When real estate tax statements and insurance statements are issued, Landlord shall provide the Tenant with an accounting of the actual costs, if requested. The Tenant shall pay to the Landlord, its pro-rated share of the above-mentioned costs for the premises in question. Such monies are to be considered additional rent. The prompt payment of the rent for said premises upon the dates named, and the faithful observance of the rules and regulations printed within this Lease, and which are hereby made a part of this covenant, are the conditions upon which this Lease is made and accepted and any failure on the part of the Tenant to comply with the terms of said Lease, or any of said rules and regulations now in existence, shall, at the option of the Landlord, be considered a forfeiture of this Business Lease, and shall further be considered a forfeiture of the rights of the Tenant hereunder, and thereupon, the Landlord, his agents or his attorneys, shall have the right to enter said premises, and remove all persons therefrom forcible or otherwise.
G. Late Charges: The Landlord and the Tenant agree that the Tenant shall have a three (3) day grace period in which to make a rental payment. The Tenant agrees that the Tenant will pay a late charge of $25.00 per day for each day the Tenant is late with a rental payment beyond the due date as set force above. Such monies are to considered additional rent. For example purposes only, if a rental payment is due on the first day of the month, with the above and foregoing three (3) day grace period, said rental payment would have to be hand-delivered to the Landlord by no later than the fourth day of the month, or if mailed by the Tenant, would have to be received by the Landlord by the fourth day of the month, in order to avoid any late charges. If the payment is mailed to the Landlord, the Tenant understands that the Landlord must receive said payment by the last day of the grace period to avoid late charges and the Tenant shall not be allowed to argue that the envelope was post marked prior to the end of the grace period.
24.11. Relocation. Landlord shall have the right to relocate Tenant from the Premises to comparable (as to size, configuration and improvements) alternative space in the Property or in another building that Landlord (or its affiliate) owns in the same business park or campus in which the Property is located (in either case, the “Replacement Premises”) upon 90 days’ prior written notice to Tenant. In the event of such a relocation, Landlord shall make reasonable, good faith efforts to coordinate with Tenant a mutually acceptable plan (as to scope and timing) for such relocation, and Landlord shall be responsible for the third party costs actually incurred to accomplish the physical relocation of Tenant (e.g. movers and telephone company charges). If the Replacement Premises are larger in size than the original Premises, there shall be no adjustment in Tenant’s Base Rent; however, Tenant’s Proportionate Share shall be appropriately modified, thereby resulting in a potential increase in Tenant’s Additional Rent. If, however, the Replacement Premises is a smaller size (as to rentable square feet) than the original Premises, Landlord shall appropriately adjust both Tenant’s Base Rent and its Proportionate Share.
(ii) Additional Rent. Subtenant shall pay to Sublandlord as additional rent (Additional Rent) all expenses incurred by Sublandlord due to Subtenants use of the Sublease Space and all other costs incurred under the Lease for the Sublease Space. Subtenant shall pay Sublandlord, as Additional Rent for each Expense Year that occurs in whole or in part during the Sublease Term, an amount (the Sublease Escalation) equal to Subtenants Share (as hereinafter defined) of the excess (if any) of (x)the amount payable by Sublandlord to Landlord for such Expense Year under Section4 of the Lease (both estimates as well as actuals) in respect of escalations in Expenses and Taxes over (y)the amount payable by Sublandlord to Landlord for the Expense Year ending on December31, 2016, under the Lease in respect of escalations in Expenses and Taxes. If the expiration date of the Sublease Term occurs on a day other than the last day of an Expense Year, then the Sublease Escalation for such Expense Year shall be a pro-rated amount (computed on a per diem basis), based upon the number of days within such Expense Year occurring within the Sublease Term. Subtenants Share means 22.95%, which percentage the parties agree is Subtenants percentage share of the Premises applicable to the Sublease Space and is subject to appropriate adjustment after the date hereof if either the size of the Premises or the size of the Sublease Space is increased or decreased. During the Sublease Term, Subtenant has the right to request from Sublandlord a copy of the Statement (as that term is defined in Section4.4.1 of the Original Lease), the Estimate Statement (as that term is defined in Section4.4.2 of the Original Lease), and any back-up information that Landlord has delivered to Sublandlord with respect to the actual Expenses and Taxes for the preceding calendar year.
3.4.9 Payments Deemed Additional Rent. Any sums payable under this Lease pursuant to this paragraph or otherwise shall be Additional Rent and, in the event of nonpayment of such sums, Landlord shall have the same rights and remedies with respect to such nonpayment as it has with respect to nonpayment of the Base Rent due under this Lease.
3.5.2 Tenant acknowledges that space on the Building rooftop and in Building risers, equipment rooms and equipment closets is limited. If Tenant requires Telecommunication Services for the Premises other than from the provider or providers of Telecommunication Services selected by Landlord and whose Telecommunication Facilities are installed in or about the Building or on the rooftop of the Building, provision for alternate or supplemental Telecommunication Services or Telecommunication Facilities has been made in a license agreement accompanying and made part of this Lease. Unless otherwise required by law, neither Tenant, nor a provider of Telecommunication Services to Tenant, in the future shall be entitled to locate or install Telecommunication Facilities in, on or about the Building without (a)first obtaining Landlords advance, written consent (given in its absolute discretion) and (b)the advance execution by Landlord and Tenant of a satisfactory agreement granting a license to Tenant for such purposes and setting forth the scope, the additional rent. if any, royalties and the other terms and conditions of that license, and (c)Tenant negotiating and obtaining the right, if any is required, to bring such Telecommunication Facilities across public or private property to an approved entry point to the Building. The agreement referred to in clause (b)of the previous sentence shall be incorporated in and become part of this Lease. Any future application by Tenant for permission to locate or install Telecommunication Facilities shall (1)be in such form and shall be accompanied by such supporting information as the Landlord may require, (2)be subject to such procedures, regulations and controls as the Landlord may specify and (3)be accompanied by such payment as the landlord may reasonably request to reimburse Landlord for its costs of evaluating and processing the application and in negotiating and preparing the agreement described earlier in this subparagraph.
5.3 Right to Perform. If Tenant shall fail to pay any sum of money, other than Base Rent or Additional Rent. required to be paid by it under this Lease or shall fail to perform any other act on its part to be performed under this Lease, and such failure shall continue for fifteen (15)days after notice of such failure by Landlord, or such shorter time if reasonable under the circumstances, Landlord may, but shall not be obligated to, and without waiving or releasing Tenant from any obligations of Tenant, make such payment or perform such other act on Tenants part to be made or performed as provided in this Lease. Landlord shall have (in addition to any other right or remedy of Landlord) the same rights and remedies in the event of the nonpayment of sums due under this paragraph as in the case of default by Tenant in the payment of Base Rent.
(collectively, the “Rent Abatement”). In the event that on the date any such Rent Abatement is to be applied Tenant is in default of this Lease beyond the expiration of any grace or cure period expressly provided for in this Lease such that this Lease has been terminated or Tenant’s right to possession of the Demised Premises has been terminated, then the Rent Abatement theretofore applied against Fixed Rent or thereafter to be applied against Fixed Rent shall be entirely forfeited, and the equivalent amount of any such Rent Abatement theretofore applied to the Fixed Rent shall be immediately remitted by Tenant to Landlord as Additional Rent. The “Rent Commencement Date” is the Commencement Date.
(b)Tenant, at its own expense, may make changes in the Tenant Improvements by submitting to Landlord the required revised Work Plans for approval or disapproval in accordance with the approval/disapproval standards described in Paragraph 2 hereof. In the event Tenant submits revised Work Plans which are approved by Landlord, Landlord will thereafter submit a proposal (the "Proposal") to Tenant for approval showing (i) the increased cost of the Tenant Improvements resulting from the proposed changes and (ii) the delay in completion of the Tenant Improvements anticipated as a result of the proposed changes (it being understood that Tenant's request for a change may constitute "Tenant Delay" pursuant to Paragraph 4 and the date of Substantial Completion shall not be delayed or extended by reason thereof). The increased cost of the Tenant Improvements shall reflect all anticipated changes relating to said Tenant changes, and shall be paid for by Tenant to Landlord on demand at any time as Additional Rent. The Proposal shall include a form of Change Order which shall set forth the anticipated time to perform such change(s) and the anticipated adjustment to the cost of the Tenant Improvements ("Change Order"). Tenant may approve the Proposal by executing and delivering the Change Order to Landlord within the time period specified in the Proposal (or within forty-eight (48) hours, if no period is required). If Tenant fails to approve the Proposal within the specified time period, Tenant shall be deemed to have abandoned its request for changes in the Tenant Improvements and Landlord may proceed with the Tenant Improvements without regard to such requested changes. If at any time Tenant has requested changes, or Landlord has delivered a Proposal to Tenant and Tenant has not yet approved the Proposal, Landlord may at its election cease any portions of Tenant Improvements affected by such changes, and delays caused by such cessation of Tenant Improvements shall constitute a "Tenant Delay" as defined in Paragraph 4 hereof.
3.2Additional Rent. In addition to Base Rent, Sub-subtenant shall pay to Sub-sublandlord when due all other amounts payable by Sub-subtenant to Sub-sublandlord under the provisions of this Sub-sublease (collectively, Additional Rent); provided that Sub-sublandlord shall have delivered to Sub-subtenant reasonable backup documentation showing that Sub-sublandlord shall have incurred such amounts. Additional Rent shall include any and all amounts other than Base Rent payable hereunder, which, by the terms of the Sublease, as incorporated herein, would become due and payable by the Subtenant thereunder to Sublandlord as additional rent or otherwise and which would not have become due and payable but for the acts, requests for services, and/or failures to act of Sub-subtenant, its agents, officers, representatives, employees, servants, contractors, invitees, licensees or visitors under this Sub-sublease, including, but not limited to: (i)any increases in Landlords or Sublandlords fire, rent or other insurance premiums resulting from any act or omission of Sub-subtenant, (ii)any charges on account of Sub-subtenants use of heating, ventilation or air-conditioning or condenser water, (iii)any charges to Sub-sublandlord or Sub-subtenant on account of Sub-subtenants use of special cleaning and freight elevator services or for overtime or other extra services requested or required by Sub-subtenant, and (iv)any review, approval or other fees charged by Sublandlord under the Sublease, or Landlord under the Lease on account of Sub-subtenant. Following Sub-subtenants receipt of any services for which such Additional Rent would be payable and receipt by Sub-sublandlord of any statement or written demand from Sublandlord or Landlord for payment of any such Additional Rent, Sub-sublandlord will furnish Sub-subtenant with a copy of such statement or demand, together with a statement of the amount of any such Additional Rent. Sub-subtenant shall pay to Sub-sublandlord the amount of any Additional Rent payable under this Sub-sublease at least two (2)Business Days prior to the date on which payment thereof is due under the applicable provision of the Sublease (provided that such statement or demand shall have been delivered to Sub-subtenant). The obligations of Sub-subtenant to pay Base Rent and Additional Rent hereunder shall survive the expiration or termination of this Sub-sublease.
pests by Subtenant at Subtenants expense and shall not permit any food odors or other unusual or objectionable odors or fumes to emanate outside the Subleased Premises including but not limited to other tenants spaces and into other areas of the Building nor permit any cooking, preparation of food, or cigarette, cigar, pipe, or other form of smoking to occur in, on, or about the Subleased Premises; further, provided, if Sublandlord elects, at Sublandlords sole option, to provide extermination services for the Subleased Premises due to the existence of insects, rodents, vermin and other pests arising from such pantry or food in the Subleased Premises due to Subtenants partners, employees, invitees, or agents elsewhere, such cost and expense shall be included as Additional Rent. Unless otherwise agreed upon by Sublandlord, on or before the expiration or sooner termination of the Term, Subtenant shall, at Subtenants sole cost, remove such Supplemental Equipment from the Subleased Premises and restore the Subleased Premises to its condition as of the date hereof using new, first class materials in a good and workmanlike manner and, in case of any damage to the Building and/or the Unit and/or the Subleased Premises by reason of such removal, Subtenant shall repair any such damage. In no event shall any ancillary uses (whether by Subtenant or any third party) be used by, or available for use by, the general public.
4.4 Calculation and Payment of Additional Rent. Tenant shall pay to Landlord, in the manner set forth in Section4.4.1 below, and as Additional Rent, an amount equal to Tenants Share of Building Direct Expenses for each Expense Year; provided that, subject to the terms of Section3.3.2 above, Tenants payments of Building Direct Expenses for Suite304 shall be abated during the Rent Abatement Period.
4.4 Calculation and Payment of Additional Rent. Tenant shall pay to Landlord, in the manner set forth in Section4.4.1 below, and as Additional Rent, an amount equal to Tenants Share of Building Direct Expenses for each Expense Year.
(6) Rent as used in this Lease means Base Rent, Operating Cost Share Rent, Tax Share Rent, Parking Rent and Additional Rent. Tenants agreement to pay Rent is an independent covenant, with no right of setoff, deduction or counterclaim of any kind.
B.Additional Rent. In addition to the Fixed Rent payable hereunder, Subtenant covenants to pay to Sublandlord, for periods occurring wholly or in part within the Term, as additional rent (“Additional Rent”), without any deduction, offset, abatement, defense and/or counterclaim whatsoever, all other amounts that are required to be paid to Prime Landlord pursuant to the Prime Lease with respect to the Subleased Premises, other than those amounts required to be paid as a result of Sublandlord’s breach of the Prime Lease.If the Prime Landlord provides additional services to the Subleased Premises at the request of Subtenant, Subtenant shall pay One Hundred Percent (100%) of all charges payable to the Prime Landlord therefor upon demand of Prime Landlord or Sublandlord (or at such later time as may be permitted under the Prime Lease).
24. If Owner in 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 Owner has not completed any work required to be performed by Owner, or for any other reason, Owner shall not be subject to any liability for failure to give possession on said date and the validity of the lease shall not be impaired under such circumstances, nor shall the same be construed in any way to extend the term of this lease, but the rent payable hereunder shall be abated (provided Tenant is not responsible for Owners inability to obtain possession or complete any work required) until after Owner shall have given Tenant notice that Owner is able to deliver possession in the condition required by this lease. If permission is given to Tenant to enter into possession of the demised premises, or to occupy premises other than the demised premises, prior to the date specified as the commencement of the term of this lease, Tenant covenants and agrees that such possession and/or occupancy shall be deemed to be under all the terms, covenants, conditions and provisions of this lease, except the obligation to pay the fixed annual rent set forth in page one of this lease and any additional rent. The provisions of this article arc intended to constitute an express provision to the contrary within the meaning of Section 223-a of the New York Real Property Law.
hereunder (beyond any applicable notice and cure periods), Landlord shall assign to Tenant any guaranty and warranty, covering such required repair, the Landlord may have obtained. Tenant shall pay for all such items consumed as shown on said meters within ten (10)days of the rendition of bills and charges rents and collect the same from Tenant as additional rent. Any such costs or expenses incurred or payments made by Landlord for any reason or purposes hereinabove stated shall be paid by Tenant to Landlord on demand or, at Landlords election, may be added to any subsequent installment or installments of Basic Annual Rent.
4.2 Additional Rent. Tenant shall pay to Landlord, as Additional Rent, Tenant’s Percentage of Taxes and Operating Costs as provided in Sections 4.2.1 and 4.2.2, and all other charges and amounts payable by or due from Tenant to Landlord (all such amounts referred to in this sentence being “Additional Rent”).
Rate") from the date when such installment or payment shall have become due to the date of the payment thereof, and such interest shall be deemed Additional Rent. For purposes of this Lease, the term "Base Rate" shall mean the annual rate of interest publicly announced from time to time by Citibank, N.A., or its successor, as its "prime lending rate" (or such other term as may be used by Citibank, N.A., or its successor, from time to time, for the rate presently referred to as its "prime lending rate").
Section 25.01Procedures.The parties hereto shall not be deemed to have agreed to determination of any dispute arising out of this Lease by arbitration unless determination in such manner shall have been specifically and unequivocally provided for in this Lease. Any arbitration applicable under this Lease shall be final and binding on the parties (and judgment may be had on the decision and award of the Arbitrator so rendered in any court of competent jurisdiction, each party hereby consenting to the entry of such judgment in any such court) and shall be conducted in the City and in accordance with the rules of the AAA under the Expedited Procedures of its Commercial ArbitrationRules in effect at that time (or if the AAA is no longer in existence, by the expedited arbitration procedures of any succeeding or substantially similar dispute resolution organization); provided, however, that it shall be conducted by a sole arbitrator (the "Arbitrator") who shall determine the allocation of costs of such arbitration proceeding. The prevailing party shall also be entitled to interest on the amount of the award, if any, at the Default Rate. Landlord and Tenant shall, during the pendency of any such arbitration proceeding, continue to perform their obligations hereunder (without prejudice to their respective positions), including without limitation, with respect to Tenant, the timely payment of all items of Fixed Rent and Additional Rent. Any Arbitrator acting under this Section 25.01 in connection with any matter shall (a) be experienced in the field to which the dispute relates, (b) have been actively engaged in such field for a period of at least ten (10) years before the date of his or her appointment as arbitrator hereunder, (c) be sworn fairly and impartially to perform his or her respective duties as an arbitrator, (d) not be an employee or past employee of Landlord or Tenant or of any affiliate of Tenant or of Landlord and (e) never have represented or been retained for any reason whatsoever by Landlord or Tenant or any affiliate of Tenant or of Landlord (unless both Landlord and Tenant waive the requirement set forth in this clause (e) in writing).The obligations of Landlord and Tenant under the provisions of this Article 25 shall survive the expiration or earlier termination of the Term.
Section 40.02Interference.Tenant shall use the Rooftop Equipment so as not to cause any interference to other tenants or Landlord in the Complex or interference with or disturbance to the operation of other equipment, or to the reception or transmission of communication signals by or from any existing antennae, dishes, or other similar equipment, in either case, installed by Landlord or any other tenant in the Complex, or damage to or interference with the operation of the Building or the Building Systems. If the Rooftop Equipment causes any such interference, damage or disturbance, then Tenant, at its sole cost and expense, shall relocate said equipment to another area on the roof designated by Landlord. If such interference or disturbance still occurs despite such relocation, or if no portion of the roof is available for such relocation, Tenant, at its sole cost and expense, shall remove the Rooftop Equipment from the roof of the Pavilion Building. In the event, Tenant fails to relocate or remove the Rooftop Equipment, Landlord may do so, and Tenant shall promptly reimburse Landlord for any costs incurred by Landlord in connection therewith, as Additional Rent. Landlord shall use commercially reasonable efforts to not interfere with Tenant's Rooftop Equipment and shall use commercially reasonable efforts to cause other tenants in the Complex not to interfere with Tenant's Rooftop Equipment.
Wherever this Lease provides that the Tenant is to pay a cost or expense to the Landlord as an item of Additional Rent (except for Operating Costs and the 15% administration fee referred to herein), the Tenant shall pay, in addition to such cost or expense, the Landlord’s administration charge of 15% of such cost or expense, which cost shall also be an item of Additional Rent. The Tenant shall pay to the Landlord the costs of all such services provided at the Tenant’s request or otherwise provided for herein and which are not included in Operating Costs including, without limitation: (a) the provision of processed air, electricity and other utilities and services outside of Business Hours or of a special nature or in excess quantities; (b) replacement of non-standard electric light fixtures, ballasts, tubes, starters, lamps, light bulbs and controls; (c) special janitorial or cleaning services; (d) operating elevators for the sole benefit of the Tenant and supervising the movement of furniture, equipment, freight and supplies for the Tenant; and (e) construction of any Leasehold Improvements or other work performed at the request of or on behalf of the Tenant.
All costs of maintaining the Signage, including, without limitation, all costs of electricity consumed by the Signage, will be paid for by Tenant to Landlord upon receipt of an invoice therefor, with Tenant’s next instalment of monthly Rent, as an item of Additional Rent. Tenant’s insurance coverage shall include the Signage. Such Signage shall be in conformance with the Building Code, zoning by-laws and the regulations of any other bodies having jurisdiction and Tenant shall obtain, at its sole expense, all necessary permits and governmental approvals.
At the earlier of (i) expiration or earlier termination of this Lease, and any renewal or extension thereof, or (ii) the date upon which Tenant itself ceases to occupy the entirety of the Premises, Tenant shall, at its sole cost and expense, remove the Signage from the Building and make good any damage caused thereby. Upon prior Notice to Landlord, Tenant shall be permitted to remove the Signage prior to the expiration of the Term or any extension thereof, provided that it repairs any damage caused by such removal. If required by Landlord, the installation and removal of the Signage shall be performed by Landlord’s contractors, at Tenant’s cost, plus an administration fee and any applicable taxes, as Additional Rent. The Tenant’s right to install Signage and the location thereof shall cease upon the Tenant’s removal of the Signage.
The charges in subpart (b)and (c) are collectively, Additional Rent. Additional Rent shall be payable to Sublandlord in monthly installments based on estimates provided by Sublandlord no less than ten (10)days prior to the date same is due under the Primary Lease.
24. Tenant shall from the date that Tenant enters into possession of the demised premises, at its own cost and expense provide and keep all plate and other glass insurance. In the event that Tenant fails to comply, then Landlord may secure such insurance on behalf of the Tenant and Tenant agrees to pay premiums when rendered as additional rent. Tenant shall have the right to self-insure with regards to glass insurance, but Tenant shall not be relieved of its obligations to promptly, at its own cost and expense, replace any and all broken glass at the demised premises.
2. Annual Base Rent and Additional Rent. Subject to the provisions hereof, commencing on the Delivery Date, LESSEE shall pay to LESSOR an Annual Base Rent pursuant to the schedule below during each Lease Year (or portion thereof as the case may be) of the Term hereof, (herein, Annual Base Rent). Annual Base Rent shall be payable in advance, in equal monthly installments, due on the first day of each calendar month, pursuant to the schedule below.
34. Extended Term Additional Rent. LESSEE in addition to the sums payable annually to LESSOR as Annual Base Rent, shall pay to LESSOR for each year of any Extended Term, as Additional Rent, LESSEES Allocable Percentage (as determined by the approximate total rentable space leased) for Operating Expenses, Real Estate Taxes and Utilities as contemplated in Sections 3,4 and 7 hereof.
13.1.Notification to Landlord; Obligation to Pay Base Rent and Additional Rent.If the Leased Premises or Building 4, or any part thereof, shall be destroyed or partially damaged by fire or other casualty, Tenant shall continue to pay Base Rent and Additional Rent during any period of repair except as otherwise expressly provided in this Article or until the Lease is terminated in accordance with the terms of this Article.
18.1.Landlord May Cure Default.If Tenant defaults under this Lease, Landlord, at its sole option, following any required notice and cure period, immediately or at any time thereafter, may elect to correct the default on behalf of Tenant.Any costs or expenses incurred by Landlord in curing such default including, but not limited to, fines, penalties, interest, damages and reasonable attorney's fees in instituting, prosecuting or defending any action or proceeding, all of which sums shall carry interest at the lesser of eighteen (18%) percent per annum or the highest rate permitted by law until paid in full, shall be deemed to be Additional Rent.Tenant shall pay such sums within thirty (30) days of receipt of a reasonably detailed bill or statement to Tenant therefor.Upon payment of such bill, Tenant shall be deemed to have cured such default.
Settlement. As soon as practical after the end of each Comparison Year, Landlord will give Tenant a statement of the actual Additional Rent for the Comparison Year. Additional Rent for any partial Comparison Year will be prorated based on a 365-day calendar year. The statement of Additional Rent is conclusive, binds Tenant, and Tenant waives all rights to contest the statement, except for items of Additional Rent to which Tenant objects by notice to Landlord given within 90days after receipt of Landlord’s statement; however, Tenant’s objection will not relieve Tenant from its obligation to pay Additional Rent pending resolution of any objection. If the Additional Rent exceeds the Estimated Additional Rent for the Comparison Year, then Tenant shall pay the underpayment to Landlord in a lump sum as Rent within 30 days after receipt of Landlord’s statement of Additional Rent. If the Estimated Additional Rent exceeds the Additional Rent for the Comparison Year, then Landlord shall credit the overpayment against Rent next due or refund such amount to Tenant concurrently with the delivery of such statement if the Lease is to terminate with the same Year as the final calculation of the Additional Rent for the Comparison Year.
4.4 Terms of Payment. “Rent” means all amounts payable by Tenant under this Lease and the exhibits, including Base Rent and Additional Rent. If a time for payment of an item of Rent is not specified in this Lease, then Tenant will pay Rent within 30 days after receipt of Landlord’s statement or invoice. Unless otherwise provided in this Lease, Tenant shall pay Rent without notice, demand, deduction, abatement, or setoff, in lawful U.S. currency, at Landlord’s Billing Address. Landlord will send invoices payable by Tenant to Tenant’s Billing Address; however, neither Landlord’s failure to send an invoice nor Tenant’s failure to receive an invoice for Base Rent (and installments of Estimated Additional Rent) will relieve Tenant of its obligation to timely pay Base Rent (and installments of Estimated Additional Rent). Any partial payment of Rent by Tenant will be considered a payment on account. No endorsement or statement on any Rent check or any letter accompanying Rent will be deemed an accord and satisfaction, affect Landlord’s right to collect the full Rent due, or require Landlord to apply any payment to any Rent other than Rent earliest due. No payment by Tenant to Landlord will be deemed to extend the Term or render any notice, pending suit or judgment ineffective. By notice to the other, each party may change its Billing Address.
Payment -- Prior to each Lease Year, Landlord will give Tenant an estimate of amounts payable under this Rider for such Lease Year or Partial Lease Year. By the first day of each month during such Lease Year or Partial Lease Year, Tenant will pay Landlord one-twelfth (1/12th) of the estimated amount.If, however, the estimate is not given before such Lease Year or Partial Lease Year begins, Tenant will continue to pay by the first day of each month on the basis of last year’s estimate, if any, until the month after the new estimate is given.As soon as practicable after each Lease Year or Partial Lease Year ends, Landlord will give Tenant a statement (the “Statement”) showing the actual amounts payable by Tenant under this Rider for such Lease Year.If the Statement shows that the actual amount Tenant owes for such Lease Year or Partial Lease Year is less than the estimated amount paid by Tenant during such Lease Year or Partial Lease Year, Landlord, at its option, will either return the difference or credit the difference against the next succeeding payment(s) of Additional Rent.If the Statement shows that the actual amount Tenant owes is more than the estimated Additional Rent paid by Tenant during such Lease Year or Partial Lease Year, Tenant will pay the difference within thirty (30) days after the Statement is delivered to Tenant.
(b) Should it become necessary for the Landlord to make such repairs after a casualty, then the provisions of this Section with respect to repair by Landlord shall be limited to such repair as is necessary to place the Premises in the condition similar to that as of the Commencement Date of the Lease, normal wear and tear excepted, and when placed in such condition the Premises shall be deemed restored and rendered tenantable. Promptly following Landlord’s restoration work Tenant, at Tenant’s expense, shall perform the work required to place the Premises in the condition to operate its business, and Tenant shall also repair or replace its stock in trade, fixtures, personal property, furniture, furnishings, floor coverings and equipment, and if Tenant has closed, Tenant shall promptly reopen for business. Any such repairs conducted by Landlord shall be considered Additional Rent and Tenant shall reimburse Landlord for such sum as Additional Rent. plus an administrative fee of fifteen percent (15%) upon demand.
(e) If Tenant refuses or neglects to repair properly as required hereunder and to the reasonable satisfaction of Landlord as soon as reasonably possible after written demand. Landlord may make such repairs without liability to Tenant for any loss or damage that may occur to Tenant’s merchandise, fixtures or other property, or to Tenant’s business by reason thereof and upon completion thereof, Tenant shall pay Landlord’s cost for making such repairs, plus fifteen (15%) percent for overhead, upon presentation of bill therefore, as Additional Rent. Said bill shall include interest at twelve (12%) percent on said cost from the date of completion of repairs by Landlord. In the event the Landlord shall undertake any maintenance or repair in the course of which it shall be determined that such maintenance or repair work was made necessary by the gross negligence or willful act of Tenant or any of its employees, or agents, or that the maintenance or repair is, under the terms of this Lease, the responsibility of Tenant, Tenant shall pay Landlord’s costs thereof plus overhead and interest as above provided in this Section.
Tenant shall be solely responsible for and promptly pay all charges for water, gas, electricity, sewer charges or trash removal or any other utility used or consumed in the Leased Premises. If any such charges are not paid when due, Landlord may, at its option, pay the same, and any amount so paid by the Landlord shall there upon become due to the Landlord from Tenant as Additional Rent. Should Landlord elect to supply the water, gas, electricity, trash removal, or any other utility used or consumed in the Leased Premises, Tenant agrees to purchase and pay for the same as Additional Rent at the applicable rates filed by the Landlord with the proper regulatory authority. In no event shall Landlord be liable for an interruption or failure in the supply of any such utilities to the Leased Premises. Tenant shall also be required prior to taking possession of the Leased Premises to pay to the Landlord any and all water or sewer connection or meter charges for the Leased Premises if the Landlord has been required to pay such charges by any private or governmental authority having jurisdiction there over.