EXHIBIT 10.27
LEASE AGREEMENT
Agreement of Lease, made on this first day of November in the year 2001,
between BFS Realty, LLC, with an office at 26 Harbor Park Drive, Port
Washington, NY 11050, party of the first part, hereinafter referred to as OWNER,
and Sandata, Inc., a Delaware corporation, with an office at 26 Harbor Park
Drive, Port Washington, New York 11050, party of the second part, hereinafter
referred to as TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from
Owner approximately 25,188 square feet in the building known as 26 Harbor Park
Drive, Port Washington, New York 11050 (the "Building") in the County of Nassau
for the term of ten (10) years (or until such term shall sooner cease and expire
as hereinafter provided) to start on the first day of August in the year 2001,
and to end on the last day of July in the year 2011, and both dates inclusive,
at an annual rate of Two Hundred Sixty-six Thousand Seven Hundred Forty-seven
and 65/100 Dollars ($266,747.65) for the period from August 1, 2001 through July
31, 2002 and thereafter as provided in Rider B attached hereto and made a part
hereof. Tenant agrees to make such payments in lawful money of the United States
which shall be legal tender in payment of all debts and dues, public and
private, at the time of payment, in equal monthly installments in advance on the
first day of each month during said term, at the office of the Owner or such
other place as Owner may designate, without any setoff or deduction whatsoever.
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder, and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent:
1. Tenant shall pay the rent as above and as hereinafter provided.
Occupancy:
2. Tenant shall use and occupy the demised premises for general office
space provided such use is in accordance with the certificate of occupancy for
the building, if any, and for no other purpose.
Alterations:
3. Tenant shall make no changes in or to the prior written consent. Subject
to the prior written consent of the Owner, and to the provisions of this
article, Tenant, at Tenant's expense, may make alterations, installations,
additions or improvements which are non-structural and which do not affect
utility services or plumbing and electrical lines, in or to the interior of the
demised premises, using contractors or mechanics first approved in each instance
by Owner. Tenant shall, at its expense, before making any alterations,
additions, installations or improvements obtain all permits, approvals and
certificates required by any governmental or quasi-governmental bodies and (upon
completion) certificates of final approval thereof, and shall deliver promptly
duplicates of all such permits, approvals and certificates to Owner. Tenant
agrees to carry, and will cause Tenant's contractors and sub-contractors to
carry, such worker's compensation, general liability, personal and property
damage insurance as Owner may require. If any mechanic's lien is filed against
the demised premises, or the building of which the same forms a part, for work
claimed to have been done for, or materials furnished to, Tenant, whether or not
done pursuant to this article, the same shall be discharged by Tenant within
thirty (30) days thereafter, at Tenant's expense, Tenant taking all necessary
legal steps, including the filing of such bonds as may be set by any Court, to
remove the mechanic's lien. All fixtures and all paneling, partitions, railings
and like installations, installed in the demised premises at any time, either by
Tenant or by Owner on Tenant's behalf, shall, upon installation, become the
property of Owner and shall remain upon and be surrendered with the demised
premises unless Owner, by notice to Tenant no later than twenty (20) days prior
to the date fixed as the termination of this lease, elects to relinquish Owner's
right thereto and to have them removed by Tenant, in which event the same shall
be removed from the demised premises by Tenant prior to the expiration of the
lease, at Tenant's expense. Nothing in this article shall be construed to give
Owner title to, or to prevent Tenant's removal of, trade fixtures, moveable
office furniture and equipment, but upon removal of same from the demised
premises, or upon removal of other installations as may be required by Owner,
Tenant shall immediately, and at its expense, repair and restore the demised
premises to the condition existing prior to any such installations, and repair
any damage to the demised premises or the building due to such removal. All
property permitted or required to be removed by Tenant at the end of the term
remaining in the demised premises after Tenant's removal shall be deemed
abandoned and may, at the election of Owner, either be retained as property or
removed from the demised premises by Owner, at Tenant's expense.
Repairs:
4. See Rider C.
Window Cleaning:
5. Tenant will not clean nor require, permit, suffer or allow any window in
the demised premises to be cleaned from the outside in violation of Section 202
of the New York State Labor Law or any other applicable law, or the Rules of the
Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
Requirements of Law, Fire Insurance, Floor Loads:
6. Prior to the commencement of the lease term, if Tenant is then in
possession, and at all times thereafter, Tenant shall, at Tenant's sole cost and
expense, promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer pursuant to law,
and all orders, rules and regulations of the New York Board of Fire
Underwriters, Insurance Services Office, or any similar body which shall impose
any violation, order or duty upon Owner or Tenant with respect to the demised
premises, whether or not arising out of Tenant's use or manner of use of the
demised premises of the building (including the use permitted under the lease).
Except as provided in Article 30 hereof, nothing herein shall require Tenant to
make structural repairs or alterations unless Tenant has, by its manner of use
of the demised premises or method of operation therein, violated any such laws,
ordinances, orders, rules, regulations or requirements with respect thereto.
Tenant shall not do or permit any act or thing to be done in or to the demised
premises which is contrary to law, or which will invalidate or be in conflict
with public liability, fire or other policies of insurance at any time carried
by or for the benefit of Owner. Tenant shall not keep anything in the demised
premises except as now or hereafter permitted by the Fire Department, Board of
Fire Underwriters, Fire Insurance Rating Organization and other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
demised premises in a manner which will increase the insurance rate for the
building or any property located therein over that in effect prior to the
commencement of Tenant's occupancy. If by reason of the failure to comply with
the foregoing the fire insurance rate shall, at the beginning of this lease or
at any time thereafter, be higher than it otherwise would be, then Tenant shall
reimburse Owner, as additional rent hereunder, for that portion of all fire
insurance charged because of such failure by Tenant. In any action or proceeding
wherein Owner and Tenant are parties, a schedule or "make-up" or rate for the
building or demised premises issued by a body making fire insurance rates
applicable to said premises shall be conclusive evidence of the facts therein
stated and of the several items and charges in the fire insurance rates then
applicable to said premises. Tenant shall not place a load upon any floor of the
demised premises exceeding the floor load per square foot area which it was
designed to carry and which is allowed by law. Owner reserves the right to
prescribe the weight and position of all safes, business machines and mechanical
equipment. Such installations shall be placed and maintained by Tenant, at
Tenant's expense, in settings sufficient, in Owner's judgment, to absorb and
prevent vibration, noise and annoyance.
Subordination:
7. This lease is subject and subordinate to all ground or underlying leases
and to all mortgages which may now or hereafter affect such leases or the real
property of which the demised premises are a part, and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument or subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall form time to time execute promptly any certificate that Owner may
request.
Tenant's Liability Insurance Property Loss, Damage, Indemnity:
8. Owner or its agents shall not be liable for any damage to property of
Tenant or of others entrusted to employees of the building, nor for loss of, or
damage to, any property of Tenant by theft or otherwise, nor for any injury or
damage to persons or property resulting from any cause of whatsoever nature,
unless caused by, or due to, the negligence of Owner, its agents, servants, or
employees; Owner or its agents shall not be liable for any damage caused by
other tenants or persons in, upon or about said building or caused by operations
in connection of any private, public or quasi public work. If at any time any
windows of the demised premises are temporarily closed, darkened or bricked up
(or permanently closed, darkened or bricked up, if required by law) for any
reason whatsoever including, but not limited to, Owner's own acts, Owner shall
not be liable for any damage Tenant may sustain nor abatement or diminution of
rent, nor shall the same release Tenant from its obligations hereunder nor
constitute an eviction. Tenant shall indemnify and save harmless Owner against
and from all liabilities, obligations, damages, penalties, claims, costs and
expenses for which Owner shall not be reimbursed by insurance, including
reasonable attorney's fees, paid, suffered or incurred as a result of any breach
by Tenant, Tenant's agents, contractors, employees, invitees or licensees, of
any covenant or condition of this lease, or the carelessness, negligence or
improper conduct of Tenant, Tenant's agents, contractors, employees, invitees or
licensees. Tenant's liability under this lease extends to the acts and omissions
of any subtenant and any agent, contractor, employee, invitee or licensee of any
subtenant. In case any action or proceeding is brought against Owner by reason
of any such claim, Tenant, upon written notice from Owner, will, at Tenant's
expense, resist or defend such action or proceeding by counsel approved by Owner
in writing, such approval not to be unreasonably withheld.
Destruction, Fire and Other Casualty:
9. (a) If the demised premises or any part thereof shall be damaged by fire
or other casualty, Tenant shall give immediate notice to Owner and this lease
shall continue in full force and effect except as hereinafter set forth. (b) If
the demised premises are partially damaged or rendered partially unusable by
fire or other casualty, the damages thereto shall be repaired by, and at the
expense of, Owner, and the Rent and other items of additional rent, until such
repair shall be substantially completed, shall be apportioned from the day
following the casualty according to the part of the demised premises which is
usable. (c) If the demised premises are totally damaged or rendered wholly
unusable by fire or other casualty, then the rent and other items of additional
rent as hereinafter expressly provided shall be proportionately paid up to the
time of the casualty and thenceforth shall cease until the date when the demised
premises shall have been repaired and restored by Owner (or sooner reoccupied in
part by Tenant then rent shall be apportioned as provided in subsection (b)
above), subject to Owner's right to elect not to restore the same as hereinafter
provided. (d) If the demised premises are rendered wholly unusable or (whether
or not the demised premises are damaged in whole or in part) if the building
shall be so damaged that Owner shall decide to demolish it or to rebuild it,
then, in any of such events, Owner may elect to terminate this lease by written
notice to Tenant, given within ninety (90) days after such fire or casualty, or
thirty (30) days after adjustment of the insurance claim for such fire or
casualty, whichever is sooner, specifying a date for the expiration of the
lease, which date shall not be more than sixty (60) days after the giving of
such notice, and upon the date specified in such notice the term of this lease
shall expire as fully and completely as if such date were the date set forth
above for the termination of this lease, and Tenant shall forthwith quit,
surrender and vacate the demised premises without prejudice however, to Owner's
rights and remedies against Tenant under the lease provisions in effect prior to
such termination, and any rent owing shall be paid up to such date, and any
payments of rent made by Tenant which were on account of any period subsequent
to such date shall be returned to Tenant. Unless Owner shall serve a termination
notice as provided herein, Owner shall make the repairs and restorations under
the conditions of (b) and (c) hereof, with all reasonable expedition, subject
the delays due to adjustment of insurance claims, labor troubles and causes
beyond Owner's control. After any such casualty, Tenant shall cooperate with
Owner's restoration by removing from the demised premises as promptly as
reasonably possible, all of Tenant's salvageable inventory and movable
equipment, furniture, and other property. Tenant's liability for rent shall
resume five (5) days after written notice from Owner that the demised premises
are substantially ready for Tenant's occupancy. (e) Nothing contained
hereinabove shall relieve Tenant from liability that may exist as a result of
damage from fire or other casualty. Notwithstanding the foregoing, including
Owner's obligation to restore under subparagraph (b) above, each party shall
look first to any insurance in its favor before making any claim against the
other party for recovery for loss or damage resulting from fire or other
casualty, and to the extent that such insurance is in force and collectible, and
to the extent permitted by law, Owner and Tenant each hereby releases and waives
all right of recovery with respect to subparagraphs (b), (d) and (e) above,
against the other or any one claiming through or under each of them by way of
subrogation or otherwise. The release and waiver herein referred to shall be
deemed to include any loss or damage to the demised premises and/or to any
personal property, equipment, trade fixtures, goods and merchandise located
therein. The foregoing release and waiver shall be in force only if both
releasor's insurance policies contain a clause providing that such a lease or
waiver shall not invalidate the insurance. If, and to the extent, that such
waiver can be obtained only by the payment of additional premiums, then the
party benefiting from the waiver shall pay such premium within ten (10) days
after written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions
hereof with respect to waiver of subrogation. Tenant acknowledges that Owner
will not carry insurance on Tenant's furniture and/or furnishings or any
fixtures or equipment, improvements, or appurtenances removable by Tenant, and
agrees that Owner will not be obligated to repair any damage thereto or replace
the same. (f) Tenant hereby waives the provisions of Section 227 of the Real
Property Law and agrees that the provision of this article shall govern and
control in lieu thereof.
Eminent Domain:
10. See Rider A.
Assignment, Mortgage, Etc.:
11. Subject to Article A-22 hereof, Tenant, for itself, its heirs,
distributees, executors, administrators, legal representatives, successors and
assigns, expressly covenants that it shall not assign, mortgage or encumber this
agreement, nor underlet, or suffer or permit the demised premises or any part
thereof to be used by others, without the prior written consent of Owner in each
instance. Transfer of the majority of the stock of a corporate Tenant or the
majority partnership interest of a partnership Tenant shall be deemed an
assignment. If this lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than Tenant, Owner may, after
default by Tenant, collect rent from the assignee, undertenant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, undertenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting.
Electric Current:
12. Tenant covenants and agrees that at all times its use of electric
current shall not exceed the capacity of existing feeders to the building or the
risers or wiring installation, and Tenant may not use any electrical equipment
which, in Owner's opinion, reasonably exercised, will overload such
installations or interfere with the use thereof by other tenants of the
building. The change at any time of the character of electric service shall in
no wise make Owner liable or responsible to Tenant, for any loss, damages or
expenses which Tenant may sustain.
Access to Premises:
13. Owner or Owner's agents shall have the right (but shall not be
obligated) to enter the demised premises in any emergency at any time, and, at
other reasonable times, to examine the same and to make such repairs,
replacements and improvements as Owner may deem necessary and reasonably
desirable to any portion of the building, or which Owner may elect to perform in
the demised premises after Tenant's failure to make repairs, or perform any work
which Tenant is obligated to perform under this lease, or for the purpose of
complying with laws, regulations and other directions of governmental
authorities. Tenant shall permit Owner to use, maintain and replace pipes and
conduits in and through the demised premises, and to erect new pipes and
conduits therein provided, wherever possible, they are within walls or otherwise
concealed. Owner may, during the progress of any work in the demised premises,
take all necessary materials and equipment into said premises without the same
constituting an eviction, nor shall Tenant be entitled to any abatement of rent
while such work is in progress, nor to any damages by reason of loss or
interruption of business or otherwise. Throughout the term hereof Owner shall
have the right to enter the demised premises at reasonable hours for the purpose
of showing the same to prospective purchasers or mortgagees of the building, and
during the last six (6) months of the term for the purpose of showing the same
to prospective tenants, and may, during said six (6) months period, place upon
the demised premises the usual notices "To Let" and "For Sale" which notices
Tenant shall permit to remain thereon without molestation. If Tenant is not
present to open and permit an entry into the demised premises, Owner or Owner's
agents may enter the same whenever such entry may be necessary or permissible by
master key or forcibly, and provided reasonable care is exercised to safeguard
Tenant's property, such entry shall not render Owner or its agents liable
therefor, nor in any event shall the obligations of Tenant hereunder be
affected. If during the last month of the term Tenant shall have removed all or
substantially all of Tenant's property therefrom, Owner may immediately enter,
alter, renovate or redecorate the demised premises without limitation or
abatement of rent, or incurring liability to Tenant for any compensation, and
such act shall have no effect on this lease or Tenant's obligation hereunder.
Vault, Vault Space, Area:
14. No vaults, vault space or area, whether or not enclosed or covered, not
within the property line of the building is leased hereunder, anything contained
in or indicated on any sketch, blueprint or plan, or anything contained
elsewhere in this lease to the contrary notwithstanding. Owner makes no
representation as to the location of the property line of the building. All
vaults and vault space and all such areas not within the property line of the
building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any federal,
state or municipal authority or public authority, Owner shall not be subject to
any liability, nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant, if used by Tenant,
whether or not specifically leased hereunder.
Occupancy:
15. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part. Tenant has inspected the demised premises and
accepts them as is, subject to the riders annexed hereto with respect to Owner's
work, if any. In any event, Owner makes no representation as to the condition of
the demised premises and Tenant agrees to accept the same subject to violations,
whether or not of record. If any governmental license or permit shall be
required for the proper and lawful conduct of Tenant's business, Tenant shall be
responsible for, and shall procure and maintain, such license or permit.
Bankruptcy:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding,
this lease may be cancelled by Owner by sending a written notice to Tenant
within a reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of any
state naming Tenant as a debtor; or (2) the making by Tenant of an assignment of
any other arrangement for the benefit of creditors under any state statute.
Neither Tenant nor any person claiming through or under Tenant, or by reason of
any statute or order of court, shall thereafter be entitled to possession of the
premises demised, but shall forthwith quit and surrender the demised premises.
If this lease shall be assigned in accordance with its terms, the provisions of
this Article 16 shall be applicable only to the party then owing Tenant's
interest in this lease.
(b) It is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant, as and for liquidated damages, an amount equal to the difference between
the rental reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If the demised premises
or any part thereof be relet by Owner for the unexpired term of said lease, or
any part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such reletting
shall be deemed to be the fair and reasonable rental value for the part or the
whole of the demised premises so re-let during the term of the re-letting.
Nothing herein contained shall limit or prejudice the right of the Owner to
prove for and obtain as liquidated damages by reason of such termination, an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such damages are proved,
whether or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
Default:
17. (a) If Tenant defaults in fulfilling any of the covenants of this lease
for the payment of rent or additional rent; or if the demised premises becomes
vacant or deserted, or if this lease be rejected under ss.365 of Title 11 of the
U.S. Code (Bankruptcy Code); or if any execution or attachment shall be issued
against Tenant or any of Tenant's property whereupon the demised premises shall
be taken or occupied by someone other than Tenant; or if Tenant shall be in
default with respect to any other lease between Owner and Tenant; or if Tenant
shall have failed, after five (5) days written notice, to redeposit with Owner
any portion of the security deposited hereunder which Owner has applied to the
payment of any rent and additional rent due and payable hereunder; or if Tenant
fails to move into or take possession of the demised premises within thirty (30)
days after the commencement of the term of this lease, of which fact Owner shall
be the sole judge; then in any one or more of such events, upon Owner serving a
written fifteen (15) days notice upon Tenant specifying the nature of said
default, and upon the expiration of said fifteen (15) days, if Tenant shall have
failed to comply with or remedy such default, or if the said default or omission
complained of shall be of a nature that the same cannot be completely cured or
remedied within said fifteen (15) day period, and if Tenant shall not have
diligently commenced during such default within such fifteen (15) day period,
and shall not thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default, then Owner may serve a written five (5) days notice
of cancellation of this lease upon Tenant, and upon the expiration of said five
(5) days this lease and the term thereunder shall end and expire as fully and
completely as if the expiration of such five (5) day period were the day herein
definitely fixed for the end and expiration of this lease and the term thereof,
and Tenant shall then quit and surrender the demised premises to Owner, but
Tenant shall remain liable as hereinafter provided.
(b) If the notice provided for in (1) herein shall have been given, and the
term shall expire as aforesaid; or if Tenant shall be in default in the payment
of the rent reserved herein or any item of additional rent herein mentioned, or
any part of either, or in making any other payment herein required; then, and in
any of such events, Owner may without notice, re-enter the demised premises
either by force or otherwise, and dispossess Tenant by summary proceedings or
otherwise, and the legal representative of Tenant or other occupant of the
demised premises, and remove their effects and hold the demised premises as if
this lease had not been made, and Tenant hereby waives the service of notice of
intention to re-enter or to institute legal proceedings to that end. If Tenant
shall make default hereunder prior to the date fixed as the commencement of any
renewal or extension of this lease, Owner may cancel and terminate such renewal
or extension agreement by written notice.
Remedies of Owner and Waiver of Redemption:
18. In case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or otherwise, (a) the rent, and additional rent, shall
become due thereupon and be paid up to the time of such re-entry, dispossess
and/or expiration, (b) Owner may re-let the demised premises or any part or
parts thereof, either in the name of Owner or otherwise, for a term or terms,
which may at Owner's option be less than or exceed the period which would
otherwise have constituted the balance of the term of this lease, and may grant
concessions or free rent or charge a higher rental than that in this lease, (c)
Tenant or the legal representatives of Tenant shall also pay to Owner as
liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between the rent hereby
reserved and or covenanted to be paid and the net amount, if any, of the rents
collected on account of the subsequent lease or leases of the demises premises
for each month of the period which would otherwise have constituted the balance
of the term of this lease. The failure of Owner to re-let the demised premises
or any part or parts thereof shall not release or affect Tenant's liability for
damages. In computing such liquidated damages there shall be added to the said
deficiency such expenses as Owner may incur in connection with re-letting, such
as legal expenses, reasonable attorneys' fees, brokerage, advertising, and for
keeping the demised premises in good order or for preparing the same for
re-letting. Any such liquidated damages shall be paid in monthly installments by
Tenant on the rent day specified in this lease, and any suit brought to collect
the amount of the deficiency for any month shall not prejudice in any way the
rights of Owner to collect the deficiency for any subsequent month by a similar
proceeding. Owner, in putting the demised premises in good order or preparing
the same for re-rental may, at Owner's option, make such alterations, repairs,
replacements, and/or decorations in the demised premises as Owner, in the
Owner's sole judgment, considers advisable and necessary for the purpose of
re-letting the demised premises, and the making of such alternations, repairs,
replacements, and/or decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. Owner shall in no event be liable
in any way whatsoever for failure to re-let the demised premises, or in the
event that the demised premises are re-let, for failure to collect the rent
thereof under such re-letting, and in no event shall Tenant be entitled to
receive any excess, if any, of such net rentals collected over the sums payable
by Tenant to Owner hereunder. In the event of a breach or threatened breach by
Tenant of any of the covenants or provisions hereof, Owner shall have the right
of injunction and the right to invoke any remedy allowed at law or in equity as
if re-entry, summary proceedings and other remedies were not herein provided
for. Mention in this lease of any particular remedy, shall not preclude Owner
from any other remedy, in law or in equity. Tenant hereby expressly waives any
and all rights of redemption granted by or under any present or future laws.
Fees and Expenses:
19. If Tenant shall default in the observance or performance of any term or
covenant on Tenant's part to be observed or performed under, or by virtue of,
any of the terms or provisions in any article of this lease, after notice if
required, and upon expiration of the applicable grace period, if any, (except in
an emergency), then, unless otherwise provided elsewhere in this lease, Owner
may immediately, or at any time thereafter, and without notice, perform the
obligation of Tenant thereunder. If Owner, in connection with the foregoing, or
in connection with any default by Tenant in the covenant to pay rent hereunder,
makes any expenditures or incurs any obligations for the payment of money,
including but not limited to reasonable attorneys' fees, in instituting,
prosecuting or defending any action or proceeding, and prevails in any such
action or proceeding, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Owner within ten (10) days of rendition of any bill
or statement to Tenant therefor. If Tenant's lease term shall have expired at
the time of the making of such expenditures or incurring of such obligations,
such sums shall be recoverable by Owner as damages.
Building Alterations and Management:
20. Owner shall have the right, at any time, without the same constituting
an eviction and without incurring liability to Tenant therefor, to change the
arrangement and or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building, and
to change the name, number or designation by which the building may be known.
There shall be no allowance to Tenant for diminution of rental value and no
liability on the part of Owner by reason of inconvenience, annoyance or injury
to business arising from Owner or other Tenant making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
any controls of the manner of access to the building by Tenant's social or
business visitors, as Owner may deem necessary, for the security of the building
and its occupants.
No Representations by Owner:
21. Neither Owner nor Owner's agents have made any representations or
promises with respect to the physical condition of the building, the land upon
which it is erected, the demised premises, the rents, leases, expenses of
operation, or any other matter or thing affecting or related to the demised
premises or the building, except as herein expressly set forth, and no rights,
easements or licenses are acquired by Tenant by implication or otherwise except
as expressly set forth in the provisions of this lease. Tenant has inspected the
building and the demised premises and is thoroughly acquainted with their
condition and agrees to take the same "as-is" on the date possession is
tendered, and acknowledges that the taking of possession of the demised premises
by Tenant shall be conclusive evidence that the said premises, and the building
of which the same form a part, were in good and satisfactory condition at the
time such possession was so taken, except as to latent defects. All
understandings and agreements heretofore made, between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreement between Owner and Tenant, and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
End of Term:
22. Upon the expiration or other termination of the term of this lease,
Tenant shall quit and surrender to Owner the demised premises, "broom-clean," in
good order and condition, ordinary wear and damages which Tenant is not required
to repair as provided elsewhere in this lease excepted, and Tenant shall remove
all its property from the demised premises. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of this
lease. If the last day of the term of this lease, or any renewal thereof, falls
on Sunday, this lease shall expire at noon on the preceding Saturday, unless it
be a legal holiday, in which case it shall expire at noon on the preceding
business day.
Quiet Enjoyment:
23. Owner covenants and agrees with Tenant that upon Tenant paying the rent
and additional rent and observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of this lease including, but not limited to, Article 34
hereof, and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
Failure to Give Possession:
24. If Owner is unable to give possession of the demised premises on the
date of the commencement of the term hereof because of the holding-over or
retention of possession of any tenant, undertenant or occupants, or if the
demised premises are located in a building being constructed, because such
building has not been sufficiently completed to make the premises ready for
occupancy or because of the fact that a certificate of occupancy has not been
procured, or if Owner has not completed any work required to be performed by
Owner, or for any other reason, Owner shall not be subject to any liability for
failure to give 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
wise to extend the term of this lease, but the rent payable hereunder shall be
abated (provided Tenant is not responsible for Owner's inability to obtain
possession or complete any work required) until after Owner shall have given
Tenant notice that 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 the premises other than the demised premises,
prior to the date specified as the commencement of the term of this lease,
Tenant covenants and agrees that such possession and/or occupancy shall be
deemed to be under all the terms, covenants, conditions and provisions of this
lease, except the obligation to pay the fixed annual rent set forth in page one
of this lease. The provisions of this article are intended to constitute "an
express provision to the contrary" within the meaning of Section 223-a of the
New York Real Property Law.
No Waiver:
25. The failure of Owner to seek redress for violation of, or to insist
upon the strict performance of, any covenant or condition of this lease, or of
any of the Rules or Regulations, set forth or hereafter adopted by Owner, shall
not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation. The
receipt by Owner of rent with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach, and no provision of this
lease shall be deemed to have been waived by Owner unless such waiver be in
writing signed by Owner. No payment by Tenant, or receipt by Owner, of a lesser
amount than the monthly rent herein stipulated shall be deemed to be other than
on account of the earliest stipulated rent, nor shall any endorsement or
statement of any check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction, and Owner may accept such check or payment
without prejudice to Owner's right to recover the balance of such rent or pursue
any other remedy in this lease provided. All checks tendered to Owner as and for
the rent of the demises premises shall be deemed payments for the account of
Tenant. Acceptance by Owner of rent from anyone other than Tenant shall not be
deemed to operate as an attornment to Owner by the payor of such rent, or as a
consent by Owner to an assignment or subletting by Tenant of the demised
premises to such payor, or as a modification of the provisions of this lease. No
act or thing done by Owner or Owner's agents during the term hereby demised
shall be deemed an acceptance of a surrender of said premises, and no agreement
to accept such surrender shall be valid unless in writing signed by Owner. No
employee of Owner or Owner's agent shall have any power to accept the keys of
said premises prior to the termination of the lease, and the delivery of keys to
any such agent or employee shall not operate as a termination of the lease or a
surrender of the demised premises.
Waiver of Trial by Jury:
26. It is mutually agreed by and between Owner and Tenant that the
respective parties hereto shall, and they hereby do, waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other (except for personal injury or property damage) on any matters
whatsoever arising out of or in any way connected with this lease, the
relationship of Owner and Tenant, Tenant's use of or occupancy of the demised
premises, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Owner commences any proceeding or
action for possession, including a summary proceeding for possession of the
demised premises, Tenant will not interpose any counterclaim, of whatever nature
or description, in any such proceeding, including a counterclaim under Article
4, except for statutory mandatory counterclaims.
Inability to Perform:
27. This Lease and the obligation of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on part of Tenant to
be performed shall in no wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under the lease, or to supply, or is
delayed in supplying, any service expressly or impliedly to be supplied, or is
unable to make, or is delayed in making, any repairs, additions, alterations or
decorations, or is unable to supply, or is delayed in supplying, any equipment,
fixtures or other materials, if Owner is prevented or delayed from doing so by
reason of strike or labor troubles, or any cause whatsoever beyond Owner's sole
control including, but not limited to, government preemption or restrictions, or
by reason of any rule, order or regulation of any department or subdivision
thereof of any government agency, or by reason of the conditions which have been
or are affected, either directly or indirectly, by war or other emergency.
Bills and Notices:
28. Except as otherwise in this lease provided, a bill statement, notice or
communication which Owner may desire or be required to give to Tenant, shall be
deemed sufficiently given or rendered if, in writing, delivered to Tenant
personally, or sent by registered or certified mail addressed to Tenant at the
building of which the demised premises form a part, or at the last known
residence address or business address of Tenant, or left at any of the aforesaid
premises addressed to Tenant, and the time of the rendition of such bill or
statement and of the giving of such notice or communication shall be deemed to
be the time when the same is delivered to Tenant, mailed, or left at the
premises as herein provided. Any notice by Tenant to Owner must be served by
registered or certified mail addressed to Owner at the address first hereinabove
given, or at such other address as Owner shall designate by written notice.
Water Charges:
29. If Tenant requires, uses or consumes water for any purpose in addition
to ordinary lavatory purposes (of which 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
connection or system. Independently of, and in addition to, any of the remedies
served 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.
Sprinklers:
30. Anything elsewhere in this lease to the contrary notwithstanding, if
the New York Board of Fire Underwriters of the New York Fire Insurance Exchange
or any bureau, department or official of the federal, state or city government
recommend or require the installation of a sprinkler system, or that any
changes, modifications, alterations, or additional sprinkler heads or other
equipment be made or supplied in an existing sprinkler system by reason of
Tenant's business, the location of partitions, trade fixtures, or other contents
of the demised premises, or for any other reason, or if any such sprinkler
system installations, modifications, alterations, additional sprinkler heads or
other such equipment, become necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system in the fire insurance
rate set by said Exchange or any other body making fire insurance rates, or by
any fire insurance company, Tenant shall, at Tenant's expense, promptly make
such sprinkler system installations, changes, modifications, alterations, and
supply additional sprinkler heads or other equipment as required, whether the
work involved shall be structural or non-structural in nature. Tenant shall pay
to Owner as additional rent 50%, on the first day of each month during the term
of this lease of the contract price for the sprinkler supervisory service for
the Building.
Elevators, Heat, Cleaning:
31. Tenant shall, at Tenant's expense, keep the demised premises, including
the windows, clean and in order, to the reasonable satisfaction of Owner, and
for that purpose shall employ person or persons, or corporations approved by
Owner. Tenant shall pay to Owner the cost of removal of any of Tenant's 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 the judgment of Owner, are necessary for the proper operation
of the building. Owner reserves the right to stop service of the heating,
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.
Security:
32. Tenant has deposited with Owner the sum of $44,458 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 to 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 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, encumbrance, attempted
assignment or attempted encumbrance. See Section A-8.05 - A-8.06 in Rider A,
attached hereto.
Captions:
33. The Captions are inserted only as a matter of convenience and for
reference, and in no way define, limit or describe the scope of this lease nor
the intent of any provision thereof.
Definitions:
34. The term "Owner" as used in this lease means only the owner of the fee
or of the leasehold of the building, or the mortgagee in possession for the time
being, of the land and building (or the owner of a lease of the building or of
the land and building) of which the demised premises form a part, so that in the
event of any sale or sales 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, 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.
Adjacent Excavation-Shoring:
35. If an excavation shall be made upon land adjacent to the demised
premises, or shall be authorized to be made, Tenant shall afford to the person
causing or authorized to cause such excavation, a license to enter upon the
demised premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building, of which demised premises form a
part, from injury or damage, and to support the same by proper foundations,
without any claim for damages or indemnity against Owner, or diminution or
abatement of rent.
Rules and Regulations:
36. Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully, and comply strictly with, the Rules and
Regulations annexed hereto and such other and further reasonable Rules and
Regulations as Owner or Owner's agents may from time to time adopt. Notice of
any additional Rules or Regulations shall be given in such manner as Owner may
elect. In case Tenant disputes the reasonableness of any additional Rules or
Regulations hereafter made or adopted by Owner or Owner's agents, the parties
hereto agree to submit the question of the reasonableness of such Rules or
Regulations for decision to the New York office of the American Arbitration
Association, whose determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rules or
Regulations upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing, upon Owner, within fifteen (15)
days after the giving of notice thereof. Nothing in this lease contained shall
be construed to impose upon Owner any duty or obligation to enforce the Rules
and Regulations or terms, covenants, or conditions in any other lease, as
against any other tenant, and Owner shall not be liable to Tenant for violation
of the same by any other tenant, its servants, employees, agents, visitors or
licensees.
Glass:
37. Tenant shall replace, at the expense of Tenant, any and all plate and
other glass damaged or broken from any cause whatsoever in and about the demised
premises. Tenant shall insure, and keep insured, at Tenant's expense, all plate
and other glass in the demised premises for and in the name of Owner. Bills for
the premiums therefor shall be rendered by Owner to Tenant at such times as
Owner may elect, and shall be due from, and payable by, Tenant when rendered,
and the amount thereof shall be deemed to be, and be paid as, additional rent.
Estoppel Certificate:
38. Tenant, at any time, and from time to time, upon at least ten (10) days
prior notice by Owner, shall execute, acknowledge and deliver to Owner, and/or
to any other person, firm or corporation specified by Owner, a statement
certifying that this lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), stating the dates to which the rent and
additional rent have been paid, and stating whether or not there exists any
default by Owner under this lease and, if so, specifying each such default.
Directory Board Listing:
39. If, at the request of, and as accommodation to, Tenant, Owner shall
place upon the directory board in the lobby of the building, one or more names
of persons or entities other than Tenant, such directory board listing shall not
be construed as to the consent by Owner to an assignment or subletting by Tenant
to such person or entities.
Successors and Assigns:
40. The covenants, conditions and agreements contained in this lease shall
bind and inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns. Tenant shall look only to Owner's estate
and interest in the land and building for satisfaction of Tenant's remedies for
the collection of a judgment (or other judicial process) against Owner in the
event of any default by Owner hereunder, and no other property or assets of such
Owner (or any partner, member, officer or director thereof, disclosed or
undisclosed), shall be subject to levy, execution of other enforcement procedure
for the satisfaction of Tenant's remedies under, or with respect to, this lease,
the relationship of Owner and Tenant hereunder, or Tenant's use and occupancy of
the demised premises.
SEE RIDERS ANNEXED HERETO CONTAINING ADDITIONAL LEASE PARAGRAPHS.
In Witness Whereof, Owner and Tenant have respectively signed and sealed
this lease as of the day and year first above written.
Witness for Owner: BFS REALTY, LLC
- -----------------------------
BY:/s/Bert E. Brodsky [L.S.]
----------------------
Bert E. Brodsky
Witness for Tenant: SANDATA, INC.
- ----------------------------- BY:/s/Hugh Freund [L.S.]
----------------------
Hugh Freund
STATE OF NEW YORK )
:ss.:
COUNTY OF QUEENS )
On the 1st day of November in the year 2001, before me, the undersigned, a
Notary Public in and for said State, personally appeared Bert E. Brodsky,
personally known to be or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed this instrument.
/s/Linda Scarpantonio
------------------------
NOTARY PUBLIC
STATE OF NEW YORK )
:ss.:
COUNTY OF QUEENS )
On the 1st day of November in the year 2001, before me, the undersigned, a
Notary Public in and for said State, personally appeared Hugh Freund, personally
known to be or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed this instrument.
/s/Linda Scarpantonio
------------------------
NOTARY PUBLIC
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN ACCORDANCE
WITH ARTICLE 36.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by Tenant or used for any purpose other than for ingress or egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner, using elevators and passageways designated for such delivery
by Owner. There shall not be used in any space, or in the public hall of the
building, either by Tenant or by jobbers or others in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and
sideguards. If said premises are situated on the ground floor of the building,
Tenant shall further, at Tenant's expense, keep the sidewalk and curb in front
of said premises clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for
any purposes other than those for which they were designed or constructed, and
no sweepings, rubbish, rags, acids or other substances shall be deposited
therein, and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by Tenant, whether or not caused by
Tenant, its clerks, agents, employees or visitors.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the building; and Tenant shall not sweep or throw, or permit to be
swept or thrown, from the demised premises, any dirt or other substances into
any of the corridors of halls, elevators, or out of the doors or windows or
stairways of the building, and Tenant shall not use, keep or permit to be used
or kept, any foul or noxious gas or substance in the demised premises, or permit
or suffer the demised premises to be occupied or used in a manner offensive or
objectionable to Owner or other occupants of the buildings by reason of noise,
odors, and or vibrations, or interfere in any way, with other tenants or those
having business therein, nor shall any bicycles, vehicles, animals, fish, or
birds be kept in or about the building. Smoking or carrying lighted cigars or
cigarettes in the elevators of the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of the
demised premises or the building, or on the inside of the demised premises if
the same is visible from the outside of the demised premises, without the prior
written consent of Owner, except that the name of Tenant may appear on the
entrance door of the demised premises. In the event of the violation of the
foregoing by Tenant, Owner may remove same without any liability, and may charge
the expense incurred by such removal to Tenant. Interior signs on doors and
directory tablet shall be inscribed, painted or affixed for Tenant by Owner at
the expense of Tenant, and shall be of a size, color and style acceptable to
Owner.
6. Tenant shall not mark, paint, drill into, or in any way deface any part
of the demised premises or the building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior written
consent of Owner, and as Owner may direct. Tenant shall not lay linoleum, or
other similar floor covering, so that the same shall come in direct contact with
the floor of the demised premises, and, if linoleum or other similar floor
covering is desired to be used, an interlining of builder's deadening felt shall
be first affixed to the floor, by a paste or other material, soluble in water,
the use of cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by Tenant, nor shall any changes be made in existing locks or
mechanism thereof. Tenant must, upon the termination of his tenancy, restore to
Owner all keys of stores, offices and toilet rooms, either furnished to, or
otherwise procured by, Tenant, and in the event of the loss of any keys, so
furnished, Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of
any description shall be delivered to and removed from the demised premises only
on the freight elevators and through the service entrances and corridors, and
only during hours, and in a manner approved by Owner. Owner reserves the right
to inspect all freight to be brought into the building, and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease, of which these Rules and Regulations are a part.
9. Tenant shall not obtain for use upon the demised premises ice, drinking
water, towel and other similar services, or accept barbering or bootblacking
services in the demised premises, except from persons authorized by Owner, and
at hours and under regulations fixed by Owner. Canvassing, soliciting and
peddling in the building is prohibited and Tenant shall cooperate to prevent the
same.
10. Owner reserves the right to exclude from the building all persons who
do not present a pass to the building signed by Owner. Owner will furnish passes
to persons for whom any Tenant requests same in writing. Tenant shall be
responsible for all persons for whom any Tenant requests such pass, and shall be
liable to Owner for all acts of such persons. Notwithstanding the foregoing,
Owner shall not be required to allow Tenant or any person to enter or remain in
the building, except on business days from 8:00 a.m. to 6:00 p.m. and on
Saturdays from 8:00 a.m. to 1:00 p.m. Tenant shall not have a claim against
Owner by reason of Owner excluding from the building any person who does not
present such pass.
11. Owner shall have the right to prohibit any advertising by Tenant which
in Owner's opinion, tends to impair the reputation of the building or its
desirability as a loft building, and upon written notice from owner, Tenant
shall refrain from or discontinue such advertising.
12. Tenant shall not bring, or permit to be brought or kept, in or on the
demised premises, any inflammable, combustible, explosive, or hazardous fluid,
material, chemical or substance, or cause or permit any odors of cooking or
other processes, or any unusual or other objectionable odors, to permeate in, or
emanate from, the demised premises.
13. Tenant shall not use the demised premises in a manner which disturbs or
interferes with other tenants in the beneficial use of their premises.
14. Refuse and Trash. (1) Compliance by Tenant. Tenant covenants and
agrees, at its sole cost and expense, to comply with all present and future
laws, orders and regulations, of all state, federal, municipal, and local
governments, departments, commissions and boards regarding the collection,
sorting, separation and recycling of waste products, garbage, refuse and trash.
Tenant shall sort and separate such waste products, garbage, refuse and trash
into such categories as provided by law. Each separately sorted category of
waste products, garbage, refuse and trash shall be placed in separate
receptacles reasonably approved by Owner. Tenant shall remove, or cause to be
removed by a contractor acceptable to Owner, at Owner's sole discretion, such
items as Owner may expressly designate. (2) Owner's Rights in Event of
Noncompliance. Owner has the option to refuse to collect or accept from Tenant
waste products, garbage, refuse or trash (a) that is not separated and sorted as
required by law or (b) which consists of such items as Owner may expressly
designate for Tenant's removal, and to require Tenant to arrange for such
collection at Tenant's sole cost and expense, utilizing a contractor
satisfactory to Owner. Tenant shall pay all costs, expenses, fines, penalties,
or damages that may be imposed on Owner or Tenant by reason of Tenant's failure
to comply with the provisions of this Building Rule 15, and, at Tenant's sole
cost and expense, shall indemnify, defend and hold Owner harmless (including
reasonable legal fees and expenses) from and against any actions, claims and
suits arising from such noncompliance, utilizing counsel reasonably satisfactory
to Owner.
RIDER A
Provisions Of General Application
Article A-1. Definitions
The following terms placed within quotations are used throughout this Lease
with the respective definitions set forth below:
A-1.01 Intentionally Omitted.
A-1.02 "Building" shall mean any building of which the Premises
are a part or which is included in its entirety in the Premises.
A-1.03 "Daily Late Charge" shall mean the daily sum of $25.00 and
increased annually at the same percentage increase as Minimum Rent
shall increase.
A-1.04 "Fixed Rent", "Minimum Rent", or "Fixed Minimum Rent"
shall mean the annual rent specified in the preamble to this Lease, as
increased in accordance with Rider B.
A-1.05 "Landlord", "Owner" and "Lessor" are used interchangeably
in this Lease and shall all have the meaning given "Owner" in the
printed form portion of this Lease.
A-1.06 Intentionally Omitted.
A-1.07 "Minimum Insurance Coverage" shall mean the limits
designated below for the corresponding types of insurance:
Insurance Limit (All limits specified herein are
subject to change by Landlord if the
underlying limit of Landlord's blanket
policy shall increase.)
Public Liability $2,000,000.00 annual aggregate,
$1,000,000.00 per occurrence, written on an
industry standard form.
Contents Full Replacement Value Coverage
A-1.08 Intentionally Omitted.
A-1.09 Intentionally Omitted.
A-1.10 "Premises" and "Demised Premises" are used interchangeably
in this Lease and mean the property leased to Tenant as described in
the preamble to this Lease.
A-1.11 "Property" shall mean the entire real estate of which the
Premises are a part, including, without limitation, all land,
buildings, parking facilities (existing or hereafter acquired, whether
or not the same are contiguous to the Building) and the Premises.
A- 1.12 (a) Tenant designates the following individual(s) as the
person(s) to whom all notices, communications and correspondence
pertaining to this Lease should be directed:
Name and Title Business Address Business Telephone
-------------- ---------------- ------------------
Hugh Freund, Secretary 26 Harbor Park Drive 516-484-4400
Port Washington, NY 11050
Landlord, at its option, may direct any notice to Tenant under
this Lease to the Premises, or, if the preamble to this Lease refers
to another office of Tenant, to such office. If more than one
individual is enumerated above, Landlord's service of notice upon any
one or more of them shall satisfy Landlord's notice obligations under
this Lease.
A-1.13 "Rent" shall mean all amounts payable by Tenant under this
Lease, including, without limitation, all Minimum Rent, real estate
tax payments, and utility, maintenance and late charges.
A-1.14 "Lease Commencement Date" shall be the first day of August
2001.
A-1.15 Intentionally Omitted.
A-1.16 "Term" is the period from the Lease Commencement Date to
the close of business on July 31, 2011 (such date being hereinafter
referred to as the "Expiration Date"), or such earlier date upon which
the Term of this Lease shall expire or be cancelled or terminated
pursuant to any of the conditions or covenants of this Lease or
pursuant to law.
A-1.17 "Rentable Square Footage" shall mean approximately 25,188
square feet and is subject to adjustment by Landlord.
A-1.18 "Tenant's Pro Rata Share" shall be fifty percent (50%). In
the event Landlord shall increase the size of the Building or in the
event Tenant shall lease additional space in the Building, Tenant's
Pro Rata Share shall be adjusted to reflect the new ratio which the
size of the Demised Premises bears to the size of the Building.
A- 1.19 "Taxes" shall mean any and all taxes, assessments, sewer
and water rents, rates and charges, license fees, impositions, liens,
fees, interest, penalties and all other municipal and governmental
charges of any nature whatsoever (except only inheritance and estate
taxes and income taxes not herein expressly agreed to be paid by
Tenant), whether general or special, ordinary or extraordinary,
foreseen or unforeseen, which may presently or in the future become
due or payable or which may be levied, assessed or imposed by any
taxing authority on or with respect to all or any part of the
Property, or upon the estate or interest of Landlord in the Property
or any part thereof, including, without limitation, all taxes and
assessments for improving any streets, alleys, sidewalks, sidewalk
vaults and alley vaults, if any.
A-1.20 "Tenant" and "Lessee" are used interchangeably in this
Lease and shall be deemed to mean the person or entity described in
the preamble to this Lease as having leased the Premises from
Landlord, and any permitted successor to Tenant's interest hereunder.
A-1.21 Tenant's federal taxpayer identification number is
11-2581812.
Article A-2. Rent
A-2.01 Tenant's obligation to pay Rent shall begin on the Lease
Commencement Date.
Landlord may apply any payment by Tenant of Rent hereunder
against any item(s), or portion(s) thereof, of Rent then remaining
unpaid and any designation by Tenant as to the application of amounts
paid by Tenant under this Lease shall not bind Landlord in any manner
whatsoever.
A-2.02 If Tenant shall fail to pay Rent, in whole or in part, on
or before the tenth day of any month during which the same shall
become due, Tenant shall pay Landlord Daily Late Charges computed by
multiplying the Daily Late Charge by the number of days from the first
day of such month through the date on which Tenant pays such Rent in
full. Tenant shall become liable for the payment of separate Daily
Late Charges for each amount of Rent which remains unpaid. All Daily
Late Charges shall be deemed Rent and shall be payable by Tenant as
they accrue, and Landlord shall have all rights with respect to the
non-payment of Daily Late Charges as Landlord has with respect to the
non-payment of all other Rent due hereunder. Landlord's demand for and
collection of Daily Late Charges shall not be deemed a waiver of any
remedies that Landlord may have under this Lease by summary
proceedings or otherwise. Rent shall be deemed received (a) when
delivered to Landlord, if Tenant's representative shall personally
deliver the same to Landlord's office, or (b) on the date of the
official U. S. Postal Service postmark stamped on the envelope in
which the Rent is enclosed, if Tenant shall mail the same to Landlord.
A-2.03 If Tenant shall fail to vacate and surrender the Premises
on the Expiration Date, Tenant, at Landlord's option, shall be deemed
a month-to-month tenant and shall pay Landlord monthly rent at a rate
equal to 150% of the Rent payable during the last month of the Term,
subject to all of the other terms of this Lease insofar as they apply
to a month-to-month tenancy. The application of this Section shall
under no circumstances be deemed to establish a month-to-month or
other form of tenancy in favor of Tenant.
A-2.04 If Landlord shall institute summary proceedings for the
non-payment of Rent, Tenant shall pay Landlord's attorneys' fee in an
amount equal to ten percent of the amount of unpaid Rent but not less
than $500.00. Such fee shall be deemed Rent and Landlord, at its
option, may include such amount in said proceedings as an unpaid item.
A-2.05 Landlord' s acceptance of Rent from any person or entity
other than Tenant shall not be deemed to establish a tenancy of any
nature with such party unless Landlord shall so elect in writing, nor
shall the same relieve Tenant from any of its obligations under this
Lease.
Article A-3. Tenant's Failure to Surrender
A-3.01 Tenant agrees to indemnify and hold harmless Landlord and
Landlord's principals, directors, officers, agents and employees from
and against any loss, cost, liability and expense of any nature
whatsoever, including reasonable attorneys' fees and disbursements,
which may arise in connection with Tenant's failure to surrender the
Premises upon the expiration of the Term, including any claims by any
succeeding tenant.
Article A-4. Real Estate Taxes and Assessments
A-4.01 Intentionally Omitted.
A-4.02 Tenant shall, commencing on the Lease Commencement Date
and continuing throughout the Term of this Lease, be liable to
Landlord for its Pro Rata Share of Taxes for each tax year occurring
in whole or in part during the Term of this lease.
Tenant shall pay its Pro Rata Share of Landlord's Taxes within
ten (10) days after Landlord shall deliver to Tenant a demand
therefor. Each such demand shall be accompanied by a copy of the
appropriate tax bill.
A-4.03 Landlord's failure to deliver to Tenant a statement
showing Tenant's liability for additional Taxes for any year during
the Term shall neither prejudice nor waive Landlord's right to deliver
any such statement for any subsequent year, or to include in said
statement an amount of Rent due from Tenant for any liability for
additional Taxes during a previous year in which Landlord did not
provide Tenant with any such statement. Tenant's obligation to pay
Taxes under Section A-4.02 with respect to the last year of the Term
shall survive the expiration of the Term.
A-4.04 Tenant shall in all events pay the full amount of any
increases in Taxes which may result from any improvements made by or
on behalf of Tenant. Taxes shall be apportioned at the commencement
and expiration of the Term.
Article A-5. Insurance
A-5.01 Tenant acknowledges that Landlord maintains a blanket
"all-risk" property insurance policy ("Landlord's Policy") which
covers substantially all buildings and improvements owned from time to
time by Landlord and all Rent due under all lease agreements
pertaining to such buildings and improvements. Landlord's Policy
provides protection against all risks and hazards as may from time to
time be insurable thereunder, including, without limitation, fire,
vandalism, malicious mischief, sprinkler leakage, boilers and
machinery and extended coverage type perils and public liability,
personal and bodily injury and property damage. Landlord's Policy
provides full replacement coverage, as the same may be determined from
time to time.
Tenant acknowledges that Landlord's Policy provides for a
deductible in the event of an occurrence and submission of a claim.
Tenant agrees that if any loss or damage to the Premises covered by
Landlord's Policy shall occur, Tenant shall pay as Rent the lesser of
(a) the repairs required to be made in the Premises or (b) Tenant's
allocable portion of the deductible, prorated among Tenant and such
other tenants in the Building whose space was also affected by the
occurrence in the same ratio as the rentable square footage of their
respective premises bears to the total rentable square footage of all
premises in the Building affected by such occurrence.
Tenant acknowledges that Landlord's Policy is solely the property
of Landlord, and that all rights and benefits thereunder shall accrue
exclusively to Landlord or its designee. Further, Tenant agrees that
it acquires no rights of any nature with respect to Landlord's Policy
and the benefits and rights thereunder, whether by virtue of any
theory of constructive trust, third party beneficiary, or otherwise.
A-5.02 (a) Tenant shall pay its Pro Rata Share of the premium for
Landlord's Policy within ten (10) days after Landlord shall deliver to
Tenant a demand therefor. Each such demand shall be accompanied by a
copy of the appropriate bill.
(b) Landlord's failure to deliver to Tenant a statement showing
Tenant's liability for its Pro Rata Share of insurance premiums for
any year during the Term shall neither prejudice nor waive Landlord's
right to deliver any such statement for any subsequent year, or to
include in said statement an amount of Rent due from Tenant for any
liability for its Pro Rata Share of insurance premiums during a
previous year in which Landlord did not provide Tenant with any such
statement. Tenant's obligation to pay its Pro Rata Share of the
premiums for Landlord's Policy under this Section A-5.02 with respect
to the last year of the Term shall survive the expiration of the Term.
A-5.03 Tenant shall obtain and maintain in full force and effect
during the Term (a) Public Liability Insurance on an occurrence basis
written on a Comprehensive General Liability Basis, including Premises
/Operations, Independent Contractor's Liability, Products/Completed,
Operations Liability, Water Damage Legal Liability, Sprinkler Leakage
Legal Liability and a Broad Form Comprehensive General Liability
Endorsement, covering occurrences in or about the Premises, with no
deductible, (b) a Plate Glass Policy covering all plate glass in and
about the Premises, if any and (c) insurance against loss of or damage
to Tenant's property and fixtures on or about the Premises by fire and
such other risks and hazards as are insurable under the latest
available standard form of policy for "all-risk" property insurance,
providing full replacement value coverage. All such insurance shall be
written with limits not less than the Minimum Insurance Coverage or
any increased limits Landlord may from time to time reasonably
require. All policies shall be written as primary coverage, not
contributing with, nor in excess of, coverage that Landlord may carry.
All insurance maintained by Tenant under this Section shall name
Landlord as a loss payee as respects the improvements and betterments
of the Property and all insurance maintained by Tenant under clauses
(a) and (b) of this Section shall protect Landlord and name Landlord
as an additional named insured.
A-5.04 Tenant shall deliver to Landlord certificates for the
insurance specified in Section A-5.03, together with proof of payment
of the premium for the same; all certificates required to be delivered
to Landlord under this Lease as provided above and thereafter from
time to time for the insurance specified in clauses (a) and (b) of
Section A-5.03 shall name Landlord as an additional named insured, and
shall state unequivocally that such policy shall not be cancelled or
changed in any manner without sixty (60) days prior written notice to
Landlord. Tenant shall renew or replace the same and shall deliver to
Landlord certificates for all such renewals and replacements, at least
thirty days before such policies, or any renewal or replacement
policies, expire. All such insurance shall be issued by insurance
companies having a Best's rating of at least A+/XV and licensed to do
business in the State of New York and authorized to issue such
policies. If Tenant shall fail to procure, place and/or maintain any
such insurance and/or pay any and all premiums and charges therefor,
Landlord may (but shall not be obligated to) do so and in such event
Tenant shall pay the amount thereof, plus an administrative charge
equal to ten percent of such amount, as Rent to Landlord on demand.
Tenant shall promptly deliver to Landlord a certificate for each
endorsement to the aforementioned insurance permitted under this
Lease, and a certificate naming Landlord as an additional named
insured for each separate or additional policy of insurance otherwise
maintained by Tenant with respect to the Premises.
A-5.05 Tenant shall have included in each policy of insurance it
is required to obtain and maintain under this Lease, as well as all
other insurance policies pertaining to the Premises, Tenant's
operation in the Premises and/or Tenant's fixtures and property in the
Premises, a waiver of the insurer's right of subrogation against
Landlord.
A-5.06 Tenant's policies of insurance shall include the waiver of
subrogation or agreement or permission to release liability referred
to in Section A-5.05 and Tenant hereby waives any right of recovery
against Landlord, its employees, agents or contractors, for any loss
occasioned by any insured casualty.
A-5.07 Each policy of insurance which Tenant is required to
maintain under this Lease shall clearly specify by endorsement that
the policy is taken out at the request of Tenant, which is responsible
for all premiums on said policy. Further, each policy of insurance
maintained by Tenant under (a) and (b) of Section A-5.03 shall clearly
specify by endorsement that Landlord is an additional named insured
under such policy.
A-5.08 In the event of any loss or damage in or about the
Premises which constitutes a loss, damage, casualty or other
occurrence covered by insurance maintained by Tenant under this Lease
or Landlord under Section A-5.01, Tenant immediately shall give
Landlord notice of such loss or damage by certified mail, return
receipt requested.
Article A-6. Alterations: Removal By Tenant
A-6.01 All alterations to the Premises of any nature whatsoever
("Alterations") are subject to Article 3 of this Lease and the
following requirements:
(a) Prior to the commencement of any Alterations, Tenant shall
submit to Landlord, for Landlord's written approval, plans and
specifications (to be prepared by and at the expense of Tenant)
showing the proposed Alterations in detail satisfactory to Landlord.
No Alterations shall begin until Landlord shall have approved such
plans and specifications, in writing, and Tenant shall have delivered
to Landlord certificates for all insurance Tenant is required to
maintain under this Lease in connection with making Alterations.
Tenant shall make all approved Alterations at its own expense, in
accordance with the plans and specifications therefor approved by
Landlord and then only by contractors and mechanics approved by
Landlord. No amendments or additions shall be made to any plans and
specifications for Alterations approved by Landlord without Landlord's
prior written consent;
(b) The Alterations will not result in a violation of or require
a change in any certificate of occupancy covering the Premises or the
Building;
(c) The character, outside appearance, usefulness and/or
rentability of the Premises or the Property or any part thereof, shall
not be affected in any way, and such Alterations shall not, in the
sole opinion of Landlord, weaken or impair (temporarily or
permanently) the structure or lessen the value or cubic content of the
Building, either during the making of such Alterations or upon their
completion;
(d) No part of the Property other than the Premises shall be
physically affected. Without limiting the generality of the foregoing,
Tenant shall not, without Landlord's specific prior written consent,
cause to be made, constructed, erected, installed or otherwise placed
through, on or about the exterior walls or the roof of the Building
any holes, vents, windows, fans, pipes, ducts, doors, machinery,
equipment, appliances (including, without limitation, air conditioning
unit(s)), television or radio antenna or other tangible objects of any
nature whatsoever;
(e) The proper functioning of the Building's equipment, in the
sole opinion of Landlord, shall not be adversely affected;
(f) Upon completion of any Alterations (excluding mere
decorations), Tenant shall deliver to Landlord a copy of "as-built"
plans for such Alterations;
(g) Tenant shall not perform Alterations in any manner which for
any reason whatsoever would, in Landlord's opinion, interfere or
conflict with work being performed by contractors or laborers then
engaged in the Building or would in any way disturb the management,
operation or maintenance of the Building or any part thereof;
(h) No approval by Landlord of Alterations to be made by Tenant
shall in any way be deemed to be an agreement by Landlord that such
Alterations comply with applicable legal or insurance carrier
requirements. Notice is hereby given that Landlord shall not be liable
for any labor or materials furnished to Tenant, and that no mechanic's
or other lien for such labor or materials shall attach to or affect
any interest of Landlord;
(i) Throughout the performance of Tenant's Alterations, Tenant,
at its expense, shall carry, or cause to be carried by Tenant's
contractors and subcontractors, all insurance, including without
limitation, that required by Articles A-1.07 and A-5.03 of this Lease
or as otherwise may be required by law. Tenant shall furnish Landlord
with copies of the insurance policies required hereunder or
certificates thereof that such insurance is in effect at or before the
commencement of Alterations and, on request, at reasonable intervals
thereafter during the continuance of Alterations;
(j) All work to be performed other than Landlord's Work shall be
performed by Tenant using union labor, if required by Landlord, at
Tenant's sole cost and expense; and
(k) In connection with all work to be performed in and for the
Demised Premises, Tenant shall file all drawings, plans and
specifications, pay all fees and obtain all permits and applications
from the Building Department, the Department of Labor and any other
authorities having jurisdiction; and Tenant shall obtain a Certificate
of Occupancy and all other approvals required for Tenant to use and
occupy the Demised Premises and to open for business to the public. If
Tenant shall delay in obtaining a Certificate of Occupancy for the
Demised Premises, Landlord, at Tenant's cost and expense, may attempt
to obtain such Certificate of Occupancy and Tenant shall cooperate
with Landlord (including the signing of any necessary forms or
applications) in connection with such efforts. Tenant shall reimburse
Landlord, as additional rent, for any costs incurred in obtaining such
Certificate of Occupancy.
(1) Tenant shall submit its requirements for any and all Tenant
work to Landlord and Landlord shall submit a written proposal to
Tenant to perform the work at Tenant's cost as outlined. Tenant may
obtain proposals from other contractors; however, Landlord reserves
the right to review said proposals and perform the work at or below
the costs indicated. Landlord's failure to respond within three (3)
business days of receipt of said proposals shall mean Landlord will
not perform the work and Tenant may proceed with the work with other
contractors subject to the applicable terms and conditions in this
agreement governing alterations and improvements. Any work that Tenant
authorizes the Landlord to perform will be at the sole cost and
expense of the Tenant and will include a fee of fifteen percent (15%)
of the actual cost to Landlord for Landlord's supervision and
overhead. Tenant will execute a Work Authorization Form prepared by
Landlord and issue a check for the full amount of the cost of such
work prior to Landlord performing any such work.
A-6.02 Pursuant to Article 3 of this Lease, Landlord hereby
elects to require Tenant to remove its installations in the Premises
prior to the expiration of this Lease, at Tenant's sole expense. The
foregoing election is not irrevocable and Landlord reserves the right
at any time and from time to time by notice to Tenant to void the same
and assume the ownership of Tenant's installations in accordance with
Article 3 hereof, or reinstitute said election.
Article A-7. Acceptance and Occupancy of the Premises
A-7.01 Landlord makes no representations as to the condition of
the Premises. Tenant represents that it has inspected the Premises and
agrees to accept the same "as is".
A-7.02 The taking of occupancy of the whole or any part of the
Premises by Tenant shall be conclusive evidence, as against Tenant,
that Tenant accepts possession of the same and that the Premises so
occupied and the Property were in good and satisfactory condition at
the time such occupancy was so taken and that the Premises were
substantially as shown on Exhibit A, if any.
A-7.03 Landlord shall not be required to provide Tenant with
possession of or keys to the Premises until Tenant shall have
delivered to Landlord certificates of insurance as required under
Section A-5.03 of this Lease. Landlord's refusal to grant Tenant
occupancy of the Premises in accordance with the foregoing shall not
be a defense of Tenant against its obligation to pay Rent.
Article A-8. Security Deposit
A-8.01 Landlord shall deposit all Security under this Lease in an
interest bearing account. All interest earned on the security
hereunder (less Landlord's administration fee under Section A-8.02)
shall be added to the then existing security and constitute additional
security and be disposed of in manner set forth in Article 32 of the
pre-printed portion of this Lease captioned "Security". Tenant's
rights under this Lease to its security deposit may not be assigned,
transferred, pledged, mortgaged or otherwise encumbered by Tenant, and
any attempt by Tenant to do so shall be void and of no effect.
A-8.02 Landlord shall retain an annual administration fee with
respect to the security under this lease equal to one (1%) percent per
annum upon the security money so deposited. If the annual
administration fee payable to Landlord hereunder at any time exceeds
the amount permissible under applicable laws or if the fee is less
then the amount permissible under applicable law, then such fee shall
be the amount legally prescribed.
A-8.03 If at any time or times during the Term the amount of
security (excluding any portion thereof which shall be accrued
interest) then held by Landlord shall be less than two (2) months'
installments of Minimum Rent, whether due to an increase in Rent or
Landlord's application of all or part of the security in accordance
with this Lease, Tenant shall deposit with Landlord an additional sum
so that the security on deposit with Landlord shall then equal such
two (2) months' installments of Minimum Rent.
Tenant shall make such payment no later than the payment due date
of any increase in Rent, or, in the case of Landlord's application of
security as aforesaid, within five days after Landlord's demand.
Landlord shall have the same rights and remedies in the event of
Tenant's failure to deposit with Landlord any security required under
this Lease as Landlord has with respect to the non-payment of any
other items of Rent.
A-8.04 Intentionally Omitted.
A-8.05 At no time shall security, or any part thereof, be
permitted to be used by Tenant toward the payment of its Rent or other
obligations under this Lease.
A-8.06 Tenant agrees that upon the return of its Security Deposit
less any appropriate setoffs and/or deductions by Landlord, Tenant
shall be deemed to have waived any and all rights and/or claims
against Landlord that Tenant has failed to assert in writing within
thirty (30) days of the expiration of the Term.
Article A-9. Brokerage
A-9. 01 Landlord and Tenant each represent to the other that it
had no dealings or negotiations of any nature with any broker or
agent.
Article A-10. Sewers & Sanitary Disposal Systems
A-10. 01 If the Premises shall be connected to a sanitary
disposal system for Tenant's exclusive use, Tenant shall be required
to maintain, repair and replace the same at its sole cost and expense,
and shall not be required to share in the expense of maintaining any
other sanitary disposal system unless Tenant shall also use such other
system.
A-10.02 If the Building shall not be connected to the street
sewer line, Landlord, at its option, may perform all work necessary to
so connect the Building. Landlord and Tenant shall share the cost of
such work, including, without limitation, the costs of resurfacing and
repaving. The portion of such cost for which Tenant shall be
responsible and shall pay to Landlord on demand shall equal Tenant's
Pro Rata Share of the amount obtained by multiplying said cost by a
fraction, the numerator of which shall be the number of months
remaining in the Term including and after the month in which such work
was commenced, the denominator of which shall be one hundred twenty
(120) months.
Article A-11. Noxious Odors, Noise, etc.
A-11.01 Tenant shall not permit any unusual, excessive or noxious
noise, vibration, odor or other annoying condition to emanate from the
Premises. Within five (5) days of Landlord's notice to Tenant, Tenant
shall install or institute, at its sole cost and expense, control
devices or procedures to eliminate such condition(s). Tenant's failure
to eliminate the same within such five (5) day period shall be deemed
a material default of a substantial obligation of Tenant.
Article A-12. Easements; Reservation of Rights
A-12.01 Landlord reserves the right to create and grant on or
about the Premises utility easements in the form required by any
utility company, whether public or private, in order to furnish
utility services to the Premises or to any other premises.
A-12.02 Unless the Premises constitute the entire Building,
Landlord reserves the right to place in, under, over or through the
Premises pipes, wires, lines and facilities serving other areas of the
Property, provided that Landlord shall only do so in a manner which
does not unreasonably interfere with Tenant's conduct of its business
in the Premises.
Article A-13. Non-Liability and Indemnification
A-13.01 Neither Landlord nor Landlord's principals, officers,
directors, agents or employees (individually and collectively, the
"Landlord Group") shall be liable to Tenant, its principals, officers,
directors, agents or employees (individually and collectively, the
"Tenant Group") , and Tenant shall save the Landlord Group harmless
from any loss, liability, claim and/or expense (including, without
limitation, reasonable attorneys' fees and disbursements) arising from
or in connection with any injury to the Tenant Group, its contractors,
licensees or invitees, any interruption of Tenant's business, or for
damage to, or loss (by theft or otherwise) of, any property and/or
fixtures of every kind, regardless of the cause thereof, unless the
same shall be proximately caused by the sole negligence of Landlord
for which Landlord is legally liable. Notwithstanding the foregoing,
(a) Tenant immediately shall notify Landlord of any claim against
Landlord, (b) the Landlord Group shall not be liable for any loss,
damage or expense whatsoever to the extent of Tenant's insurance
coverage therefor and (c) Tenant shall first seek reimbursement for
any such loss, damage or expense against its insurance carrier.
A-13.02 Tenant indemnifies and shall hold harmless the Landlord
Group from and against any and all loss, liability, claim and/or
expense (including, without limitation, reasonable attorneys' fees and
disbursements) in connection with or arising from (a) any default by
Tenant under this Lease, (b) Tenant's use or occupancy of the Premises
and/or any acts, omissions or the negligence of the Tenant Group in or
about the Premises, including, without limitation, sidewalks, if any,
adjoining the Premises. Tenant shall pay to Landlord as Rent an amount
equal to all such losses, liabilities, claims and expenses within five
days after Landlord's rendition to Tenant of bills or statements
therefor.
A-13.03 If Tenant's use of the Premises shall be enjoined or
prohibited, provided the same shall not have resulted from any act or
omission by or on behalf of Tenant or use of the Premises in any
manner other than as is permitted under this Lease, Tenant shall have
the right to elect to terminate this Lease upon written notice to
Landlord setting forth the date of termination, and such right shall
be Tenant's sole available remedy against Landlord in connection
therewith.
A-13.04 Notwithstanding anything in this Lease to the contrary,
the Landlord Group shall have no personal liability under or with
respect to this Lease and the liability of the Landlord Group in
connection with this Lease is limited solely to Landlord's equity
interest in the Property. Under no circumstances whatsoever shall
Landlord be liable to Tenant in connection with this Lease for
consequential or special damages.
Article A-14. Corporate Tenant and Partnership Tenant
A-14.01 If Tenant is a corporation, as a condition to the making
of this Lease, Tenant shall within twenty days from the date of
execution of this Lease deliver to Landlord a duly authorized
resolution of the Board of Directors of Tenant, in form reasonably
satisfactory to Landlord, ratifying and approving the terms and
provisions of this Lease.
A-14.02 If Tenant is a limited liability company, a partnership,
or is comprised of two or more persons, individually or as co-partners
of a partnership (individually and collectively, the "Partnership
Tenant"), the following provisions shall apply to the Partnership
Tenant: (i) Tenant represents that the ownership of and/or power to
control a majority in interest of Tenant is vested and/or owned
beneficially by the individual(s) executing this Lease and members of
his or their immediate family; (ii) the liability of each of the
parties comprising Partnership Tenant shall be joint and several;
(iii) each of the parties comprising Partnership Tenant hereby
consents in advance to, and agrees to be bound by, any modifications
of this Lease which may hereafter be made and by any notices, demands,
requests or other communications which may hereafter be given, by
Partnership Tenant or by any of the parties comprising Partnership
Tenant; (iv) any bills, statements, notices, demands, requests,
service of process, or other communication given or rendered to
Partnership Tenant or to any of the parties comprising Partnership
Tenant shall be deemed given or rendered to Partnership Tenant and to
all such parties and shall be binding upon Partnership Tenant and all
such parties; (v) if Partnership Tenant shall admit new partners
(which term shall, for the purposes of this Section A-14.02, also be
deemed to mean members of a limited liability company), all of such
new partners shall, by their admission to Partnership Tenant, be
deemed to have assumed performance of all of the terms, covenants and
conditions of this Lease on Tenant's part to be observed and
performed; and (vi) Partnership Tenant shall give prompt notice to
Landlord of the admission of any such new partners, and upon demand of
Landlord, shall cause each such new partner to execute and deliver to
Landlord an agreement in form satisfactory to Landlord, wherein each
such new partner shall assume performance of all of the terms,
covenants and conditions of this lease on Tenant's part to be observed
and performed (but neither Landlord's failure to request any such
agreement nor the failure of any such new partner to execute or
deliver any such agreement to Landlord shall vitiate the provisions of
subdivision (v) of this paragraph).
If there shall occur without Landlord's prior written consent,
whether by operation of law or otherwise (including, without
limitation, merger, consolidation and dissolution), any (a) transfer
of Tenant's interest in this Lease, (b) if Tenant is a corporation,
change in the ownership of and/or power to vote a majority of the
outstanding capital stock of Tenant or (c) if Tenant is a partnership,
limited liability company, or other association, any change in the
beneficial ownership of and/or power to control a majority in interest
of Tenant, then Landlord may terminate this Lease upon thirty days'
notice to Tenant.
Article A-15. Rent Control
A-15.01 If at the commencement of, or at any time(s) during the
Term of this Lease, the Rent shall not be fully collectible by reason
of any Federal, State, County or local law, proclamation, order or
regulation, or direction of a public officer or body pursuant to law,
Tenant shall enter into such agreement (s), and take such other lawful
steps (without additional expense to Tenant), as Landlord may request
to permit Landlord to collect the maximum rents which may from time to
time during the continuance of such legal rent restriction be legally
permissible (but not in excess of the amounts reserved therefor under
this Lease). Upon the termination of such legal rent restriction prior
to the expiration of the Term of this Lease, (a) the Rent shall become
and thereafter be payable hereunder in accordance with the amounts
reserved in this Lease for the periods following such termination and
(b) Tenant shall pay to Landlord, if legally permissible, an amount
equal to (i) the Rent which would have been paid pursuant to this
lease but for such legal rent restriction less (ii) the Rent paid by
Tenant to Landlord during the period(s) such legal rent restriction
was in effect.
Article A-16. Tenant Defaults
A-16.01 Tenant agrees that in the event that Landlord shall
commence a Summary Proceeding for non-payment of Rent to be paid by
Tenant pursuant to the terms of this Lease, Tenant will not interpose
any counterclaim or set-off of any nature whatsoever. If Tenant shall
be evicted from or vacate the Premises or this Lease shall be
terminated prior to its expiration as a result of Tenant's failure to
perform any obligation hereunder, without limiting Landlord's other
remedies under this Lease or at law, (a) if Landlord shall relet the
Premises, Tenant shall remain liable for any deficiency in Rent which
Landlord does not receive from the succeeding tenant and shall not be
entitled to any excess Rent which Landlord may receive from such
tenant, (b) Tenant shall reimburse Landlord as Rent for the cost of
preparing the Premises for the succeeding tenant's occupancy,
including, without limitation, Landlord's Work, if any, and all
carpentry, electrical, HVAC, plumbing and painting work, (c) Tenant
shall pay to Landlord the amount of any rent concession under this
Lease, including, without limitation, the Rent, if any, which Tenant
was not required to pay at the commencement of the Term, and (d)
Tenant shall pay to Landlord all marketing costs and brokerage fees.
A-16.02 If Tenant shall default in the performance of any
covenant, term or provision of this Lease, Landlord, without thereby
waiving such default, may perform the same for the account and at the
expense of Tenant, without notice in a case of emergency or if
Landlord may be subject to any civil or criminal liability, and in any
other case if such default shall continue for ten days after the date
Landlord shall have given written notice to Tenant of its intention to
do so. Landlord shall furnish Tenant with a bill for any costs and
expenses Landlord may incur in so performing for Tenant's account, and
Tenant shall pay as Rent the amount shown on each such bill within ten
days after the same is sent by Landlord to Tenant.
A-16.03 Landlord's acceptance of a check, draft or any other
instrument from Tenant in the payment of Rent is solely a
consideration to Tenant. If (a) any check delivered to Landlord in
payment of Rent hereunder shall be returned to Landlord for any reason
whatsoever, including, without limitation, insufficient or deposited
but uncollected funds, or (b) Landlord commences summary proceedinqs
aqainst Tenant for the non-payment of Rent or otherwise institutes any
proceedings against Tenant as a result of Tenant's default hereunder,
or (c) Tenant pays Rent after the tenth day of any month, Landlord may
require Tenant to pay Rent by cash or bank certified check only.
A-16.04 (a) Notwithstanding any provision(s) in this Lease to the
contrary, the parties acknowledge and agree that (i) the Premises are
demised under this Lease for a minimum aggregate Rent (subject to such
increases and other costs as provided throughout this Lease) of
$3,355,123.28 for the Term, payable upon the execution of this Lease,
(ii) the terms of this Lease which provide for the payment of Rent in
installments are solely for the convenience of Tenant, and (iii) upon
the default in the payment of Rent in installments as aforesaid, then
the full aggregate Rent hereby reserved for the entire Term then
remaining unpaid shall, at Landlord's option, become due and payable
upon demand.
(b) If Tenant shall default (i) in the timely payment of Rent and
such default shall continue or be repeated for three consecutive
months or for a total of four months in any period of twelve months,
or (ii) in the performance of any particular term, condition or
covenant of this Lease more than six times in any period of six
months, then, notwithstanding that such defaults shall have each been
cured within the applicable grace periods under this Lease, if any,
any further similar default shall be deemed to be deliberate and
Landlord thereafter may terminate this Lease on ten days written
notice to Tenant, without affording Tenant an opportunity to cure such
further default.
A-16.05 Intentionally omitted.
A-16.06 (a) Landlord may restrain any breach or threatened breach
by Tenant of any covenant or obligation of Tenant under this Lease
without the necessity of proving the inadequacy of any legal remedy or
irreparable harm. The remedies of Landlord under this Lease shall be
deemed cumulative and none of such remedies, whether exercised or not,
shall be deemed to be to the exclusion of any other.
(b) No Waiver. No delay or omission of Landlord to exercise any
right or power arising from any default shall impair any such right or
power or be construed as a waiver of any such default or any
acquiescence therein. No waiver of any breach of any of the covenants
of this Lease shall be construed, taken or held to be a waiver of any
other breach, or as a waiver, acquiescence in or consent to any
further or succeeding breach of the same covenant. The acceptance by
Landlord of any payment of Rent after the termination by Landlord of
this Lease or of Tenant's right to possession hereunder shall not, in
the absence of an agreement in writing to the contrary by Landlord, be
deemed to restore this Lease or Tenant's right to possession
hereunder, as the case may be, but shall be construed as a payment on
account, and not in satisfaction of damages due from Tenant to
Landlord.
Article A-17. Eminent Domain
A- 17.01 If the whole or substantially all of the Premises shall
be acquired or condemned by eminent domain for any public or
quasi-public use or purpose, then and in that event, the Term of this
Lease shall cease and terminate from the date of title vesting in such
proceeding and the Tenant shall have no claim against Landlord for the
value of any unexpired Term of said lease.
In the event that more than 25%, but less than the whole or
substantially the whole of the ground floor area of the Premises shall
be so condemned, the Landlord and the Tenant shall each have the right
to cancel and terminate this Lease, upon the giving of written notice
to the other party not later than thirty (30) days after the date of
vesting of title in the condemning authority, of the said party' s
election to terminate said Lease. Termination shall be effected as of
the time that possession of the part so taken shall be required for
public use, Rent shall be apportioned and adjusted as of the time of
termination and Tenant shall have no claim against Landlord for the
value of any unexpired term of this Lease.
In the event that not more than 25% of the ground floor area of
the Premises shall be taken by condemnation or in the event that the
Lease shall not be terminated as aforesaid, then the Term of this
Lease shall continue in full force and effect and the Landlord shall
repair the remaining part of the Premises, if any part thereof has
been taken in such condemnation, and thereafter the Rent shall abate
in the proportion which the square foot area of any part of the
Premises so taken bears to the entire Premises.
In the event that any condemnation shall not affect the Building
in which the Premises are contained, this Lease shall in no way be
affected and Rent shall in no way abate.
No part of any award for any such taking by condemnation or
eminent domain shall belong to the Tenant and Tenant covenants to
execute such instruments of assignment as shall be necessary or
reasonably required by Landlord in any condemnation or eminent domain
proceedings, if so requested, and to turn over to Landlord any damages
that may be recovered in such proceedings. Any award, however, for
damages for trade fixtures installed by Tenant or anyone claiming
under Tenant at its own expense and which are not part of the realty
shall belong to the Tenant.
The Landlord shall have the absolute right to settle any claim in
condemnation proceedings without interference from Tenant and without
any obligation to Tenant, and Landlord shall have the absolute right
to make a conveyance of title of the real property being taken by
condemnation proceedings to the public or quasi public authority
having the power of eminent domain in lieu of the condemnation
proceedings, and where said conveyance is made in lieu thereof, it
shall have the same force and effect herein as if the condemnation
proceedings had proceeded to full and final completion.
A conveyance of title in lieu of such proceedings shall not be
made prior to the actual commencement of proceedings or the filing of
formal notice of the taking.
Article A-18. Miscellaneous
A-18.01 Any reference in the printed portion of this Lease to the
City of New York and the Administrative Code of the City of New York
shall, where applicable, be deemed to refer to the ordinances, rules
and regulations of the county, town and other governmental authorities
with jurisdiction over the Premises.
A-18.02 If any term or provision of this Lease or the application
thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances
other than those as to which it is held invalid or unenforceable,
shall not be affected thereby. Each term and provision of this Lease
shall be valid and enforceable to the fullest extent permitted by law.
A-18.03 This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
A-18.04 Any conflict between the printed form and Riders which
together constitute this Lease shall be resolved in favor of the
provisions of such Riders.
A-18.05 The submission of this Lease for examination or the
negotiation of the transaction described herein or the execution of
this Lease by only one of the parties will not in any way constitute
an offer to lease on behalf of either Landlord or Tenant, and this
Lease shall not be binding on either party until duplicate originals
thereof, duly executed on behalf of both parties, have been delivered
to each of the parties hereto.
A-18.06 If Landlord shall make application to any bank, insurance
company or other lender for a mortgage loan to be secured in part or
in whole by the Building and such third party requires a certified
financial statement of Tenant or other reasonable documentation of
Tenant's financial condition, Tenant shall furnish the same to
Landlord promptly after Landlord's request.
A-18.07 Unless the Premises shall include the Property in its
entirety, Landlord reserves the right to extend or add additional
floors to or otherwise alter the Building, and/or create such
additional tenancies in the Building, as Landlord may from time to
time determine, provided the same shall not physically reduce the
Premises.
A-18.08 Neither this Lease nor any memorandum hereof shall be
recorded without Landlord's prior written consent.
A-18.09 Each provision of this Lease which requires the consent
or approval of Landlord shall be deemed to require the same in each
instance in which such provision may be applicable. Any consent or
approval by Landlord to or of any act or omission by Tenant requiring
Landlord's consent or approval, shall not be deemed to waive any
future requirement for such consent or approval to or of any
subsequent similar act or omission. With respect to any provision of
this lease which provides, in effect, that Landlord shall not
unreasonably withhold or unreasonably delay any consent or any
approval, Tenant shall in no event be entitled to make, nor shall
Tenant make, any claim for, and Tenant hereby waives any claim for
money damages; nor shall Tenant claim any money damages by way of
setoff, counterclaim or defense, based upon any claim or assertion by
Tenant that Landlord has unreasonably withheld or unreasonably delayed
consent or approval, but Tenant's sole remedy shall be an action or
proceeding to enforce any such provision, or for specific performance,
injunction or declaratory judgment.
A-18.10 Tenant shall not, without Landlord's prior written
consent, use, occupy, have any right to use or occupy, or otherwise
have any interest in or to any space in the Building other than the
Premises.
A-18.11 Tenant shall not, without Landlord's prior written
consent, install or maintain, or permit any other party to install or
maintain, any vending machines, pinball games, video games or any
other mechanical or electronic device of any nature whatsoever,
whether for the dispensing of food or other products or the provision
of entertainment. Nothing in this Section A-18.11, however, shall
prohibit Tenant from using mechanical or electrical equipment in its
business.
A-18.12 Tenant shall not permit any trailer, truck or other
vehicle to be parked, stored or otherwise present on or about the
Property, except that Tenant may allow a vehicle to temporarily park
on the Premises solely for the purposes of loading and unloading.
Tenant shall, at its own cost and expense, maintain in good condition
and repair any loading platform, truck dock and or truck maneuvering
space which is used exclusively by Tenant or to which Tenant has the
right of exclusive use.
A-18.13 No interruption or malfunction of any utility services
for any cause whatsoever shall constitute an eviction or disturbance
of Tenant's use and possession of the Premises, or a breach by
Landlord of any of its obligations hereunder or render Landlord liable
for any damages (including, without limitation, consequential and
special damages), or entitle Tenant to be relieved from any of its
obligations hereunder (including, without limitation, the obligation
to pay Rent) or grant Tenant any right of set-off or recoupment. In
the event of any such interruption of any such services, Landlord
shall use reasonable diligence to restore such service in any
circumstances in which such interruption is caused by Landlord's
fault.
A-18.14 If Tenant shall at any time fail to pay the water meter
charges after demand therefor by the Landlord, the Landlord shall have
the right, at its election, to terminate and discontinue all water
service to the Premises including the right to remove the water meter
from the Premises. Tenant shall bear all costs of removal of the meter
and/or discontinuance of service and all costs to restore the meter
and of resuming service.
A-18.15 Intentionally Omitted.
A-18.16 Intentionally Omitted.
A-18.17 Notwithstanding any other provision of this Lease,
Landlord's service of notice by way of express mail or courier service
shall be deemed sufficiently rendered so long as it satisfies all
other requirements contained in the notice provision of the printed
portion of this Lease, and shall be deemed given at the time when the
same is mailed or delivered, respectively.
A-18.18 If the Premises include a basement, Tenant shall use the
same only for storage purposes.
A-18.19 Tenant must give Landlord advance notice of the date and
time when tenant plans to move in and out of the Building.
A-18.20 Landlord's acceptance at its option of the check of any
third party in payment of Rent or of any other money obligation under
this lease shall not be deemed an acceptance by Landlord of the maker
or any endorser of such check as tenant hereunder or assignee of the
Tenant hereunder.
A-18.21 The headings and captions of articles or paragraphs
contained in this Lease and Exhibits and Riders attached hereto are
inserted only as a matter of convenience and in no way define, limit,
construe, or describe the scope or intent of such articles or
paragraphs nor in any way affect this Lease.
A-18.22 Both parties acknowledge and agree that this Lease has
been freely negotiated by both parties, and that, in any dispute over
the meaning, interpretation, validity, or enforceability of this Lease
or any of its terms or conditions there shall be no presumption
whatsoever against either party by virtue of that party having drafted
this Lease or any portion thereof.
A-18.23 Provided that Tenant does not occupy the entire Building,
Landlord reserves the right at any time to relocate Tenant to another
location in the Building. Landlord shall reimburse Tenant for
reasonable moving expenses incurred in connection with such
relocation. Other than such moving expenses, Landlord shall have no
liability whatsoever to Tenant.
Article A-19. Tenant's Representations and Warranties
A-19.01 As material inducements for Landlord entering into this
Lease, Tenant hereby represents and warrants to Landlord that Tenant
is a corporation duly organized and validly existing under the laws of
the State of New York; is legally qualified to do business in the
State of New York; the persons executing and delivering this Lease on
behalf of Tenant have been lawfully and duly authorized to do so; and
when so executed and delivered this Lease represents the valid,
binding and legally enforceable obligations of the Tenant.
Article A-20. Locking System
A-20.01 Tenant agrees that it will not change the Key Locking
System currently installed at the Demised Premises, however, Tenant
can change the cylinder. Any exterior locks installed by Tenant shall
be known as the "Best Type" system.
Article A-21. Testing and Certification
A-21.01 Tenant shall reimburse Landlord within five (5) days of
receipt of a bill from Landlord for all testing and certifications for
any mechanical and electrical devices contained within the Demised
Premises and/or the Building, including but not limited to an RPZ
(Back Flow Preventer).
Article A-22. Assignment and Subletting
A-22.01 (a) Tenant shall have the right without the consent of
Landlord to (i) assign its interest in this lease to a corporation or
other entity which shall (A) control Tenant or (B) be under the
control of or be under common control with, Tenant (any such entities
or any such corporations being a "Related Entity"), or (ii) sublease
all or any portion of the Premises to a Related Entity. Any assignment
or subletting described above may only be made upon the conditions
that: (i) any such assignee or subtenant shall continue to use the
Premises for uses hereinabove set forth, (ii) in Landlord's reasonable
judgment, the principal purpose of such assignment or sublease is not
the acquisition of Tenant's interest in this Lease (except if such
assignment or sublease is made to a Related Entity and is made for a
valid intracorporate business purpose and is not made to circumvent
the provisions of this Lease governing assignment or subletting), and
(iii) notwithstanding such assignment or subletting, tenant shall not
be relieved of any or all of its obligations under this Lease as
assigned. Tenant shall within ten (10) days after execution thereof
deliver to Landlord (i) a duplicate original instrument of assignment
in form and substance reasonably satisfactory to Landlord, duly
executed by Tenant, (ii) a duplicate original instrument in form and
substance reasonably satisfactory to Landlord, duly executed by the
assignee, in which such assignee shall assume observance and
performance of, and agree to be personally bound by, all of the terms,
convenience and conditions of the Lease, on Tenant's part to be
observed and performed from and after the date of such assignment, or
(iii) a duplicate original sublease in substance reasonably
satisfactory to Landlord, duly executed by Tenant and subtenant.
(b) Except as set forth above, at any time that the shares of
Tenant are not listed on a public exchange, either a transfer
(including the issuance or reissuance of treasury stock or creation
and issuance of new stock) of a controlling interest in the shares of
Tenant (if Tenant is a corporation or trust) or a transfer of a
majority of the total interest in Tenant (if Tenant is a partnership
or limited liability company) at any one time or over a period of time
through a series of transfers, shall be deemed an assignment of this
Lease and shall be subject to all of the provisions of Article 11 and
of this Article A-22, including, without limitation, the requirement
that Tenant obtain Landlord's prior consent thereto.
RIDER B
Rent Escalation
Article B-1. Rent Escalation
B-1.01 The Fixed Minimum Rent of Two Hundred Sixty-six Thousand Seven
Hundred Forty-seven Dollars and Sixty-five Cents ($266,747.65) reserved in the
preamble to this Lease shall be increased (the "Recomputed Fixed Minimum Rent")
as of the first day of January each subsequent lease year after the first lease
year of the Term in accordance with the following Schedule:
Lease Year Recomputed Fixed Minimum Rent
1 $266,747.65
2 $280,085.03
3 $294,089.28
4 $308,793.75
5 $324,233.44
6 $340,445.11
7 $357,467.36
8 $375,340.73
9 $394,107.77
10 $413,813.16
RIDER C
Provisions of Specific Application
Article C-1. Repairs; Maintenance
C-1.01 Tenant, at its sole cost and expense, shall keep and
maintain (a) the entire interior of the Premises, including, without
limitation, all fixtures, machinery, systems (including, without
limitation, heating and ventilating and air conditioning and
sprinkler, if any) attached to or used in connection with the
operation of the Premises, (b) all plumbing lines and electrical wires
(above ground and underground) which serve exclusively the Premises,
(c) all exterior doors, glass windows, and plateglass, and sills for
all of the same, on or leading into the Premises and (d) all sidewalks
adjoining the Premises, and shall keep said sidewalks free and clear
of all rubbish, ice, snow and other debris. Tenant, without limiting
the generality of the foregoing, shall make all non-structural
installations, modifications, alterations, repairs and replacements to
the foregoing as may be necessary to keep the same in good order and
condition and to comply with all laws and requirements of utilities.
Further, Tenant shall make any and all non-structural and structural
repairs whatsoever necessitated by the acts or omissions of Tenant,
its employees, agents and/or contractors, including, without
limitation, any cleaning and/or pumping of the Building's sanitary
disposal system necessitated by Tenant's abuse thereof or consumption
of water in excess of normal. Such repairs and replacements shall be
done in a good and workmanlike manner with materials at least equal in
quality (but no used materials) to the original construction materials
and, in the case of structural repairs, subject to Landlord's prior
written approval of the materials, methods and contractors to be used
or engaged.
Tenant shall not commit or suffer waste or injury to the
Premises. Tenant shall place all of its refuse and rubbish in a
dumpster which Tenant shall obtain and maintain at the Premises. No
trash or other debris shall be permitted to remain outside of the
dumpster. If, in Landlord's opinion the dumpster maintained by Tenant
is insufficient for Tenant's use, Tenant shall at its own cost and
expense obtain either a larger or, if space permits, an additional
dumpster. If Landlord so elects, Landlord may supply a dumpster and/or
compactor and Tenant shall pursuant to C-1.03 be responsible for its
Pro Rata Share. Tenant shall not cause or permit any materials or
substances of any nature to be poured or otherwise deposited in the
storm drains and drywells situated about the Property.
C-1.02 If Tenant shall fail to perform any repairs or maintenance
work as required under this Lease or necessitated by any breach by
Tenant of its covenants hereunder within ten (10) days of Landlord's
notice thereof to Tenant, or immediately in the case of an emergency,
or, if such work be of such nature that it cannot with due diligence
be completed within ten (10) days and Tenant shall not have commenced
making such repair within such ten (10) day period and thereafter
prosecuted the same in good faith with due diligence to completion
within a reasonable period of time, Landlord, without any further
notice to Tenant, may perform such work. In such event, Tenant shall
pay as Rent the cost of such work, plus twenty-five percent of the
overhead and supervision, on demand from Landlord. Receipted bills
from contractors, materialmen and/or laborers shall be conclusive
proof of the cost thereof.
C-1.03 Landlord shall make all structural and exterior repairs
(except those set forth in Section C-1.01 and, at Landlord's option,
those repairs necessitated by the acts or omissions of Tenant, its
employees, agents and/or contractors) to the Building, and shall
maintain and make all necessary repairs and replacements to the common
areas and parking areas, including, without limitation, the
maintenance of appropriate insurance, removal of snow and ice,
necessary repairs to any plumbing lines and electrical wires (above
ground and underground, except those which serve exclusively the
Premises or any other premises in the Building), striping,
landscaping, clean-up, bulb, lamp and light stanchion replacement
(excluding any permitted signs of Tenant and other tenants in the
Building), systems maintenance and the cost of rental collection.
Tenant shall, commencing on the Lease Commencement Date and continuing
throughout the Term of this Lease, be liable to Landlord for Tenant's
Pro Rata Share of the cost of all work performed by Landlord under
this Section, and shall pay as Rent on account thereof its Pro Rata
Share of the cost of such work within ten (10) days after Landlord
shall deliver to Tenant a demand therefor. Notwithstanding the
foregoing, Tenant shall bear the entire cost of any repair or
maintenance work necessitated by any act or omission of Tenant, its
employees, agents and/or contractors, including, without limitation,
the costs of cleaning and pumping the storm drains and drywells
situated about the Property.
Within one hundred twenty days after the expiration of the first
calendar year during the Term, Landlord shall deliver to Tenant a
statement of the actual cost of such work referred to above. If such
statement shows that Tenant has paid less than Tenant's Pro Rata Share
of such costs, then Tenant shall immediately pay to Landlord the
difference. Each calendar year thereafter the same procedure shall be
followed.
C-1.04 The term "structural repairs" shall be deemed to mean
repairs and replacements of and to the structural steel, foundation,
roof deck and bearing walls only. The term non-structural repairs
shall be deemed to mean all repairs and replacements other than
structural repairs.
C-1.05 Tenant shall pay as Rent on demand Tenant's Pro Rata Share
of the cost of the supervisory service for the Building's sprinkler
system, if any.
C-1.06 Tenant shall not cause or permit any individual(s) to
enter upon the roof of the Building without Landlord's express prior
written consent. Tenant shall not allow any grease or other foreign
substance to be deposited within the plumbing system or the HVAC
system servicing the Premises, or elsewhere in or about the Premises.
C-1.07 Tenant shall pay its Pro Rata Share of the cost of
maintaining service agreements for the maintenance of all heating and
air conditioning equipment in or on the roof of the Premises.
C-1.08 Tenant shall at its own expense, comply with all
applicable laws, ordinances and requirements for the sorting or
separation of Tenant's garbage.
Article C-2. Utilities
C-2. 01 Landlord shall obtain all utilities necessary for
Tenant's use of the Demised Premises directly from the utility
companies or vendors servicing the Demised Premises. The cost of such
services shall be paid by Tenant directly to such companies.
C-2.02 Notwithstanding anything herein to the contrary, Landlord
may redistribute or furnish electricity and/or gas ("utilities") to
the Demised Premises in a manner and in such reasonable quantities as
may be required by Tenant to service Tenant's permitted use in the
Demised Premises. In such event, Tenant shall pay to Landlord within
30 days after billing, as additional rent, a sum ("Utility Rent")
determined in the manner set forth below. Such sum shall be determined
by an independent engineer or consulting firm selected by Landlord
(the "Engineer"). The Engineer shall make a survey of Tenant's utility
usage in the Demised Premises, to determine the Utility Rent. In the
event Tenant disputes any such determination, Tenant may employ a
consultant to make a survey of the cost of such utility to the Demised
Premises. The determination of such consultant shall be promptly
submitted to Landlord. If Landlord's and Tenant's consultants cannot
mutually agree as to the cost of such utility, the matter shall be
submitted for arbitration to the office of the American Arbitration
Association nearest the Property, in accordance with rules of such
American Arbitration Association. Pending such determination, Tenant
shall continue to pay the charges as billed by Landlord. Each party
shall pay the cost of its own Engineer or consultant. Any final
adjustment shall be made at the time on the arbitration award.
C-2.03 If either the quantity or character of the utility service
is changed by the utility company supplying such service to the
Building, or is no longer available or suitable for Tenant's
requirements, or if there shall be a change, interruption or
termination of such service due to a failure or defect on the part of
the utility company, no such change, unavailability, unsuitability,
failure or defect shall constitute an actual or constructive eviction,
in whole or in part, or entitle Tenant to any payment from Landlord
for any loss, damage or expense, or to abatement or diminution of
Minimum Rent or additional rent, or otherwise relieve Tenant from any
of its obligations under this lease, or impose any obligation upon
Landlord or its agents. In on event shall Landlord be responsible for
any failures of the utility providing such service or the negligence
or other acts of third parties causing any such interruption.
C-2.04 Tenant shall not apply for any separate utility meter
without Landlord's prior written consent.
C-2.05 Tenant, at its sole cost and expense, shall maintain all
applicable utility company service lines and meters located in or on
the exterior of the Premises.
Article C-3. Parking Facilities
C-3.01 Unless the Premises shall constitute the entire Building,
Tenant shall cause all of its principals, officers and employees to
park Tenant's and their vehicles (collectively, the "Company
Vehicles") solely in areas of the parking field, if any, designated by
Landlord for such purpose. Each and every violation of this clause
shall be deemed a breach of a substantial obligation of Tenant, and,
without limiting Landlord's other remedies therefor, Tenant shall pay
for them as Rent the Daily Late Charge for each motor vehicle parked
in violation of this provision.
C-3.02 Unless Landlord shall at any time designate otherwise, the
parking area(s) behind the rear of the Building shall be the area
designated for the parking of Company Vehicles. Tenant shall, upon
Landlord's request, furnish Landlord with the automobile registrations
(year, make and license plate) of all principals, employees and agents
of Tenant who either are employed at or frequently visit the Premises.
C-3.03 Landlord reserves the right, at any time and from time to
time, to (a) change the size, location, elevation and or nature of the
Building's parking facility, (b) close all or any part of the parking
facility as may be necessary, in Landlord's sole judgment, to prevent
a dedication thereof and/or the accrual of any rights therein of any
person or the public, (c) close temporarily all or any part of the
parking facility to discourage non-customer use, (d) establish and
modify and enforce reasonable rules and regulations with respect to
the use of the parking facility, and Tenant shall cause all of its
principals, employees, agents, invitees and licensees to comply with
the same; and/or (e) transfer, in whole or in part, any of the
foregoing rights to any party as Landlord may, from time to time,
determine.
C-3.04 Unless the Premises shall constitute the entire Building,
Landlord shall have the right to place self-adhering stickers on or
have towed away any Company Vehicles which are parked in areas other
than those designated therefor by Landlord or which otherwise are not
in compliance with any rules and regulations of Landlord with respect
to the parking facilities. In the event of repeated occurrences of the
above, Landlord may terminate this Lease in the manner herein
elsewhere provided. Landlord shall have no liability whatsoever for
towing or stickering Company Vehicles as aforesaid, and Landlord shall
use reasonable efforts to notify Tenant of the first occurrence (only)
of the same before taking any such action.
Article C-4. Signage
C-4.01 Tenant shall not cause or permit the placement or other
installation of any signs on or about the Property which are visible
from outside the Premises without Landlord's prior written approval,
and, after the installation of any such approved sign, Tenant shall
not cause or permit the same to be changed or altered in any respect
without Landlord's prior written approval. Any signs which Landlord
may approve shall in all events comply with all applicable rules and
regulations of county, town and other governmental authorities, be of
a dignified character and satisfy such other standards as Landlord may
require. The term "sign" shall be deemed to include, without
limitation, any form of placard, light or other advertising symbol or
object whatsoever, whether of a permanent or temporary nature.
C-4.02 Tenant shall not cause or permit the placement or other
installation of any awning, security gates or bars of any nature in,
on or above any window, door or other opening to the Premises without
Landlord's prior written consent.
C-4.03 If the Premises shall not constitute the entire Building
and the Premises shall be situated in whole or in part on the ground
floor, Tenant shall place a sign on the back door, if any, of the
Premises, indicating Tenant's name and the address of the Premises.
C-4.04 Unless the Premises shall constitute the entire Building,
Landlord reserves the right to place a sign or signs on the exterior
walls of the Premises and Building, indicating the name and/or
business of other tenants in the Building.
C-4.05 Notwithstanding any other provision of this Lease,
Landlord may install a pylon directory sign at the entrance to the
Property for the benefit of Tenants. If Tenant elects to place
Tenant's name on such pylon sign, Tenant shall be responsible for
paying to Landlord its Pro Rata Share of installation by Landlord for
such sign.
Article C-5. Liability for Hazardous Wastes
C-5.01 Tenant shall not cause or allow to be caused on or about
the Premises any Hazardous Environmental Condition (as hereinafter
defined), and Tenant shall not store, manufacture, dispose of,
process, keep, or maintain at the Premises any substance or material
whatsoever which has the potential of being deemed a hazardous
substance or material by any governmental jurisdiction or authority
including, without limitation, the governmental jurisdictions or
authorities described below in the definition of the term Hazardous
Environmental Condition. Tenant and Tenant's principals shall
indemnify and hold harmless Landlord, its officers, directors,
principals, successors and assigns and the Property from and against
any and all claims, obligations, liabilities, violations, penalties,
fines, governmental orders, suits, causes of action, judgments,
damages (civil, criminal or both) and all other costs and expenses of
any nature whatsoever including without limitation consultants' fees
and attorneys' fees, which may result from any Hazardous Environmental
Condition caused in connection with Tenant's use or occupancy of the
Premises. The term "Hazardous Environmental Condition" shall mean any
condition in, on or under the Premises arising from or in connection
with any source or cause whatsoever, including, without limitation,
the spilling, leaking, leaching, migration, discharge, dispersal,
release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, liquids or gases, petroleum or petroleum products, waste
materials or other irritants, contaminants, pollutants or other
substances of any nature into or upon land, the atmosphere, or any
water course or body of water, or ground water whether sudden and
accidental or over a course of time, which either (a) has caused or
has the potential of causing bodily injury or property damage to any
person or thing or (b) is or may hereafter be designated as a
"hazardous waste", "hazardous substance", "regulated waste" or
"regulated substance" or any other term of similar import by any
governmental jurisdiction with authority, including, without
limitation, the United States Environmental Protection Agency, the New
York Department of Environmental Conservation and/or the Nassau County
Department of Health, which requires or may hereafter require the
development and implementation of a remedial program, and/or result in
the imposition of fines and/or penalties, and/or impose on the Owner
of the Premises any obligation whatsoever. The foregoing
indemnification shall survive the termination of this Lease, and
without limiting the generality of the foregoing, Tenant and Tenant's
principals shall indemnify and hold harmless Landlord from and against
(i) any and all liens for remedial expenses in favor of any federal,
state and/or local governmental authority or municipality and (ii) any
and all legal fees and disbursements incurred in connection with
defending any suits or proceedings pertaining to a Hazardous
Environmental Condition including suits to enforce this Article.
C-5.02 Landlord and its employees and agents shall have the right
to enter the Demised Premises at any time to conduct tests at Tenant's
expense and to inspect the Demised Premises. The purpose of any such
tests or inspections shall be to determine the condition, specifically
the environmental condition, of the Premises and to insure Tenant's
compliance with Article C-5.01.
Article C-6. Miscellaneous
C-6.01 The Rentable Square Footage of the Premises has been
computed by measuring at floor level from the outside exterior walls
(or, in the case of any overhang(s) extending from any such wall(s),
from the outside, of each such overhang at the furthest point from
said exterior wall) and, if the Premises do not constitute the entire
Building, the midpoint of demising walls, and the outside (common area
side) of demising walls between the Premises and common corridors and
areas, if any.