PERINTON HILLS OFFICE PARK
Standard Lease Agreement
This Lease made as of the 18TH day of MARCH, 1994, between PERINTON HILLS,
a New York Limited Partnership, having an office for the transaction of business
at 250 WillowBrook Office Park, Fairport, New York, 14450, hereinafter called
"Landlord", and EMCO MOTOR HOLDINGS, INC., a Delaware Corporation, having an
office at 153 East 53rd Suite, New York, New York 10022 hereinafter called
"Tenant".
W I T N E S S E T H :
ARTICLE 1
PREMISES AND TERM
SECTION 1.01 Landlord hereby leases to Tenant, and Tenant hereby hires and
takes from the Landlord the following described premises (sometimes herein
referred to as the "Demised Premises") located in the Perinton Hills Office Park
(the "Park") in the Town of Perinton, County of Monroe, in Building 800 No. 800
(the "Demised Premises"),* as shown on Exhibit A attached hereto and made a part
hereof, together with the right in common with other Tenants to use parking
areas and common areas contiguous to or a part of the Building of which the
Demised Premises form a part, (the "Building") to be constructed as set forth
herein and to be used and occupied by the Tenant for offices and for no other
purpose.** [*to consist of 6839 rentable square feet at the commencement of the
demised term] [**Landlord represents that to the best of its knowledge and
belief, the Building and the
Demised Premises are now and will be at the time of the commencement of the
demised term in compliance with all applicable New York State and Town of
Perinton building codes and ordinances, is in substantial compliance with the
Americans with Disabilities Act and that neither the Building nor the Demised
Premises contain any toxic or "Hazardous Wastes".]
SECTION 1.02 The Demised Premises shall include the area bounded by: the
center line of any walls common to adjacent tenants, the Building Common Area
side of any wall adjoining Building Common Areas (but not the surface thereof),
the line established by the exterior face of the exterior walls of the Building
(but not the surface thereof), the concrete floor surface and the lower surface
of the next higher floor (or roof). Landlord reserves unto itself, its
successors and assigns, the right to install, maintain, use, repair and replace
pipes, ducts, conduits, wires and structural elements leading through the
Demised Premises in locations which will not materially interfere with Tenant's
use of the Demised Premises.*** No right to use any part of the exterior of the
Building and no easement for light or air are included in the Lease of the
Demised Premises hereby made. [***Landlord agrees, in making any said repairs,
replacements, etc., to cause as little disruption or inconvenience to Tenant as
possible.]
SECTION 1.03 "Building Common Areas" shall be defined to mean all areas,
space, equipment, signs and special services provided by Landlord specifically
for the Building or for the
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common or joint use and benefit of all the tenants in the Building, their
employees, agents, customers, visitors and other invitees, including without
limitation hallways, corridors, trash rooms, mechanical and electrical rooms,
storage rooms, stairways, entrances, elevators, rest rooms, lobbies, stairs,
loading docks, pedestrian walks, roofs and basements, janitor's and storage
closets within the Building and all other common rooms and common facilities
within the Building.
SECTION 1.04 Landlord shall, at its cost and expense (except as otherwise
specified), construct the Demised Premises for Tenant's use and occupancy in
accordance with the terms and provisions of Exhibit B which is attached hereto
and made a part hereof. Any work in addition to any of the items specifically
enumerated in said Exhibit B shall be performed by Tenant at its own cost and
expense, or if Landlord installs or constructs any of such additional work in
the Demised Premises at Tenant's request, it shall be paid for by Tenant within
fifteen (15) days after receipt of a bill therefor at cost, plus twenty percent
(20%).
SECTION 1.05 To have and to hold the Demised Premises for a term of five
(5)* lease years, or until such term shall sooner cease and terminate, as
hereinafter provided, said term to commence* on the 1st day of May, 1994, and to
end on the 30th day of April, 1999. In the event the Lease term commences on a
date other than May 1, 1994, then the Lease term will expire five (5) years from
the last day of the first full month after the term
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commences. [* Notwithstanding the foregoing, Tenant shall not be required to
pay rental prior to the commencement of the demised term and the demised term
shall not commence until the Demised Premises are ready for occupancy (as
defined in Paragraph 5 of Rider 1).]
ARTICLE 2
RENT
SECTION 2.01 Tenant covenants to pay an annual rent as follows:
A. For the period May 1, 1994, through December 31, 1994, the sum of $5207.41
per month;
B. For the period January 1, 1995, through April 30, 1995, the sum of $6924.14
per month;
C. For the period May 1, 1995, through April 30, 1996, the annual rent of
$86,509.20 payable in equal monthly installments of $7209.10;
D. For the period May 1, 1996, through April 30, 1997, the annual rent of
$89,928.72 payable in equal monthly installments of $7494.06 and
E. For the period May 1, 1997, through the end of the demised term, the annual
rent of $107,026.20 payable in equal monthly installments of $8,918.85.
Said rent shall be payable in advance on the first day of each and every
calendar month during the term hereof; except that the rent for the first month
of the term and for any period prior to the first complete calendar month shall
be payable upon execution of this Lease. The last monthly installment payment
shall include rent for the last calendar month plus rent for the remaining days
to the end of the term. Rent for any period of
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less than one (1) month shall equal 1/30th of the monthly rental for each day of
such period.
SECTION 2.02 The Tenant will pay said rent, in U.S. legal tender, in
advance without setoff, deduction or demand to Landlord at 250 WillowBrook
Office Park, Fairport, New York, 14450, or to such other person or to such other
place as Landlord shall designate in writing.
ARTICLE 3
CARE AND SURRENDER OF PREMISES
SECTION 3.01 The Tenant will take good care of the Demised Premises,
fixtures and appurtenances, and all alterations, additions and improvements to
either; will repair all damage to the same resulting from the negligence or
willful acts of the Tenant, its employees, agents or visitors; will suffer no
waste or injury; will execute and comply* with all laws, rules, orders,
ordinances and regulations at any time issued or enforced by any lawful
authority, applicable to the Tenant's use or occupancy of the Demised Premises;
will repair, at or before the end of the term, all injury done by the
installation or removal of furniture and property and at the end of the term
will quit and surrender the Demised Premises in good order and condition,
subject to normal wear and tear or damage by casualty or the elements. [*
Notwithstanding the foregoing, Tenant, in so complying, shall not be required to
make structural repairs to the Building or the Demised Premises unless caused by
Tenant's SPECIFIC use (i.e.
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unique to Tenant and not reasonably anticipated for a "normal" corporate use).]
ARTICLE 4
ASSIGNMENT, SUBLETTING AND RECAPTURE
SECTION 4.01 The Tenant will not sell, assign, mortgage or transfer this
Lease, or sublet or rent the premises or any part thereof, or permit the same or
any part thereof to be used or occupied by anybody other than the Tenant or the
Tenant's employees, without the prior written consent of the Landlord, which
Landlord agrees not to unreasonably withhold, and the Tenant will not vacate or
abandon the Demised Premises. Any sale, assignment, mortgage, transfer or
subletting of this Lease which is not in compliance with the provisions of this
paragraph and the following paragraphs shall be of no effect and void.
If Tenant shall desire to sublet the Demised Premises, Tenant shall give
written notice thereof to Landlord requesting Landlord's consent thereto which
notice shall set forth a proposed commencement date ("Proposed Effective Date")
of the sublease term, which is not less than 15 nor more than 90 days after the
sending of said notice and attached to said notice shall be a copy of the
proposed sublease agreement and of all agreements collateral thereto. The form
of said sublease agreement shall be subject to Landlord's reasonable approval
and, among other things, the subtenant shall agree to be bound by all of the
terms and provisions contained in this Lease Agreement. Landlord, within 10
business days after receipt of said notice
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shall give Tenant written notice of Landlord's consent or lack of consent to
Tenant's said request.
If Landlord so withholds said consent by notice thereof** (or if said
sublet shall occur by order of any court), Landlord may, in the same notice,
within 10 business days of Tenant's written notice to sublet, recapture the
space described in the sublease. If such recapture notice is given, it shall
serve to cancel and terminate this lease with respect to the proposed sublease
space, or, if the proposed sublease space covers all the Demised Premises, it
shall serve to cancel and terminate the entire term of this lease, in either
case, as of the Proposed Effective Date as fully and completely as if that date
had been definitely fixed for the expiration of the term of this Lease;
provided, however, that no termination of this Lease with respect to part or all
the Demised Premises shall become effective without the prior written consent,
where necessary, of the holder of each mortgage* to which this Lease is then
subject. If this Lease be terminated pursuant to the foregoing with respect to
less than the entire Demised Premises, the rent, additional rent and the
escalation percentage provisions of this Lease shall be adjusted on the basis of
the proportion of rentable square feet retained by Tenant to the rentable square
feet originally demised and this Lease as so amended shall continue thereafter
in full force and effect. [* When said consent is required by the mortgage
documents.] [**In which case Landlord shall be required to give in said notice
the reasons for not so consenting. If Landlord fails to respond to Tenant's
said notice within five (5)
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business days of Landlord's receipt of said notice then Landlord shall be deemed
to have consented.]
In the event of any sublease of all or any portion of the Demised Premises
where the rental reserved in the sublease exceeds the rental or pro rata portion
of the rental, as the case may be, for such space reserved in the Lease, Tenant
shall pay the Landlord monthly, as additional rent, at the same time as the
monthly installments of rent hereunder, the excess*** of the rental reserved in
the sublease over the rental reserved in this Lease applicable to the subleased
space. [***After deducting Tenant's reasonable costs incurred in said
subletting (but said costs shall not include fees, etc., paid to Tenant,
Tenant's employees or entities in which Tenant or Tenant's employees have an
ownership interest).]
If this Lease be assigned, sublet or transferred in any manner whatsoever,
such assignment or transfer shall be upon and subject to all of the covenants,
provisions and conditions contained in this Lease and, notwithstanding any
consent by the Landlord to any such assignment or transfer or any subletting by
the Tenant, the Tenant shall continue to be and remain the primary obligaor
hereunder. Any consent by the Landlord to any such assignment, transfer,
subletting or other matter or thing contained in this paragraph shall not in any
way be construed to relieve the Tenant from obtaining the prior consent of the
Landlord to any other or further such assignment, transfer, subletting, matter
or thing.
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ARTICLE 5
ALTERATIONS, ADDITIONS, ETC.
SECTION 5.01 The Tenant will not make or permit anyone to make any
alterations, improvements or additions in or to the Demised Premises,* or
install any equipment of any kind that will require any alteration or addition
to, or the use of, the water, heating, air conditioning or electrical or other
building systems or equipment, without the prior written consent** of the
Landlord and then only by contractors approved by Landlord which approval
Landlord agrees not to unreasonably withhold or delay. Further, a condition
precedent to any contractor performing work, labor or services on or about the
Building or the Demised Premises shall be the receipt by Landlord of a
Certificate of Insurance evidencing that the contractor is appropriately insured
in accordance with the regulations of the Landlord and that the Landlord and
such other parties as Landlord has designated as having an insurable interest
have been named as additional insureds. [*Provided Tenant is not in default
herein, Tenant may make said alterations, improvements and additions without
Landlord's consent provided the aggregate cost of same, in any one lease year,
does not exceed $1,000.00.] [**which consent will not be unreasonably withheld
or delayed.]
SECTION 5.02 If Landlord shall grant its consent, prior to the
commencement of any said alterations, additions or improvements, Tenant shall
provide Landlord Certificates evidencing the insurance coverage and limits
required by Exhibit
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B for all contractor and/or subcontractors working in or about the Building or
the Demised Premises.
SECTION 5.03 For any said alterations, additions or improvements which
exceed $5,000 in cost, Landlord, as a condition of granting its said consent,
may require that Tenant deliver to Landlord a payment bond which will be in
sufficient amount and issued by a reputable bonding company to guarantee payment
of the cost of said alterations, additions or improvements.
If any such alterations or improvements are made without such consent, the
Landlord may correct or remove them, and the Tenant shall be liable for any and
all expense incurred by the Landlord in the performance of this work. Any such
alterations, additions or improvements to the Demised Premises which are made
with the Landlord's prior written consent shall immediately become the property
of the Landlord and shall remain upon and be surrendered with the premises as a
part thereof at the end of the term. The Landlord may however, at or prior to
the end of the term by written notice to such effect, require the Tenant to
remove all or any part of such alterations, additions, or improvements, and in
such event the tenant shall promptly remove the same at its expense and shall,
at or prior to the end of the term, repair all damage to the premises caused by
such removal and return the Demised Premises, at Landlord's option, to the same
condition they were in prior to said alterations, additions, or improvements.
Tenant, at the time requesting Landlord's said
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consent to any said alteration or repair may, in said consent, require Landlord
to then elect whether or not Tenant shall be responsible for so removing said
alterations, additions, or improvements.* [*Tenant shall not be required to
remove any leasehold improvements installed by Landlord, at Landlord's expense,
at or before the commencement of the lease term.]
ARTICLE 6
SIGNS
SECTION 6.01 The Tenant will not premit or suffer any signs,
advertisements or notices to be displayed, inscribed upon or affixed on any part
of the outside or inside of the Demised Premises, or in the Building, except on
the directory board to be provided by the Landlord and on the entrance doors of
the Demised Premises, and then only of such size, color and style as the
Landlord may approve. Tenant agrees to reimburse Landlord for the cost of said
signs but said amount shall not exceed Three Hundred-fifty Dollars ($350.00).
ARTICLE 7
SERVICES
SECTION 7.01 The Demised Premises shall be furnished with a reasonable
amount of electricity for lighting and ORDINARY business applicances (as herein
defined) and, subject to the following, and to any laws, statutes, ordinances or
regulations having jurisdiction thereof, such heat and air conditioning as may
be required for the reasonably comfortable occupation of the
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premises (7:30 a.m. to 6:00 p.m. each Monday through Friday and from 7:30 a.m.
to 1:00 p.m. each Saturday, excluding holidays) and domestic water for a
drinking fountain in the common area of the Building. "Ordinary business
appliances" shall be defined to include only equipment which (i) are maintained
in an "on" or operating mode only during the hours of 7:30 a.m. to 6:00 p.m.,
Monday through Friday and Saturday 7:30 a.m. to 1:00 p.m. and (ii) do not
require more than a 20 amp electrical circuit and (iii) do not consume more than
100 watts when idle or 200 watts when operating. Further, notwithstanding the
provisions of the preceding sentence, Landlord shall not be responsible for
providing air conditioning required due to Tenant having or using within the
Demised Premises any said equipment, heat producing machine or equipment or to
provide air conditioning required due to heat produced by Tenant occupying the
premises with a density exceeding one person for every 150 square feet of
rentable space. Landlord shall not be responsible for any affect and/or
disruption in the heating or air conditioning system serving the Demised
Premises because of the presence of said machines, equipment or said density of
occupation exceeding one person per 150 square feet of rentable space.
Notwithstanding the foregoing but subject to the terms therein contained, Tenant
may have within the Demised Premises word processors, personal computers,
printers, computer terminals, copy machines and a refrigerator. If any said
equipment or "supplemental" air conditioning as hereinafter referred to, the
installation which Landlord hereby
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consents to, consumes electricity greater than the said 100 watts when idle or
200 watts when operating, Landlord may require Tenant, at Tenant's sole cost and
expense to install a separate electrical meter and to pay for the electrical
consumption to operate said equipment and if said equipment produces such heat
so that "supplemental" air conditioning would be reasonably necessary, then
Tenant, at Tenant's sole cost and expense, shall supply and install such
"supplemental" air conditioning the electrical consumption for which shall also
be separately metered and paid for by Tenant as aforesaid. Landlord shall not
be liable for failure to furnish any of the foregoing when such failure is
caused by accidents or conditions beyond the control of Landlord, or by repairs,
labor disputes or labor disturbances, of any character, whether resulting from
or caused by acts of Landlord or otherwise; nor shall Landlord be liable under
any circumstances for loss of or injury to property, however occurring, through
or inconnection with or incidental to the furnishing of any of the foregoing,
nor shall any such failure relieve Tenant from the duty to pay the full amount
of rent herein reserved, or constitute or be construed as a constructive or
other eviction of Tenant.* ** *** [* Notwithstanding the foregoing, Tenant
shall have access to the Demised Premises, 24 hours a day, 7 days a week.] [**
See Rider 1, Paragraph 3.] [*** Tenant will not be charged by Landlord for
after hours air conditioning use.]
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ARTICLE 8
LANDLORD'S REPAIR
SECTION 8.01 Subject to any other provision or term herein to contrary,
Landlord shall maintain in good repair the (a) structural parts of the Building;
(b) electrical, plumbing and sewerage systems serving the Building (except to
the extent there is or will exist within the Demised Premises, running water,
sinks, plumbing, lines and connections, disposal(s), refrigerators, freezer(s),
Tenant agrees to maintain and keep in repair the same at its sole cost and
expense but, if said equipment was supplied by Landlord, Landlord agrees to make
available to Tenant, all manufacturer's warranties applicable to said items);
(c) subject to the provisions of Article 7 above, the heating, ventilating and
air conditioning supplied by Landlord serving the Demised Premises (Tenant, at
its sole cost and expense, shall service and repair any supplemental air
conditioning, heating and ventilating equipment required by Tenant); (d) ceiling
and Landlord supplied lighting in the Demised Premises except Landlord shall be
responsible for supplying and installing bulbs within the Demised Premises only
for the 2'x4' parabolic recessed fluorescent light fixtures referred to herein;
(e) the Building, its common areas, landscaping and snowplowing its parking
facilities and exterior, and all of the Building systems in a manner
commensurate with a "Class A" office building; except Tenant shall be
responsible for and pay for any repairs required due to the negligence, misuse,
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or willful misconduct of Tenant, Tenant's employees, agents, representatives,
contractors, visitors _____________. Landlord shall not be responsible for the
repair or maintenance of any Tenant supplied or Tenant paid for item or
equipment.
ARTICLE 9
NOTICES
SECTION 9.01 In every case, when under the provisions of this Lease, it
shall be necessary or desirable for the Landlord to serve any notice or demand
on the Tenant, such notice or demand shall be served personally or by Certified
Mail, Return Receipt Requested, addressed to the Tenant at the Demised Premises,
and any such notice or demand to be given to the Landlord shall be delivered
personally and by Certified Mail, Return Receipt Requested addressed to the
Landlord at 250 Willow-Brook Office Park, Fairport, New York, 14450; or such
other address as either may designate in writing.
ARTICLE 10
INSPECTION AND SHOWING OF PREMISES
SECTION 10.01 The Landlord shall have the right at all reasonable times
during the term of this Lease to enter the Demised Premises for the purpose of
examining or inspecting the same, providing services or maintenance, or making
such repairs or alterations therein and the Landlord may exhibit the Demised
Premises to prospective new tenants. In exercising its rights under this
paragraph, Landlord agrees, as much as reasonably
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possible, to cause Tenant as little inconvenience as possible and if reasonable,
and unless otherwise directed by Tenant, to conduct such examination, showing or
inspection, during Tenant's normal business hours. See Rider 1, Paragraph 4.
ARTICLE 11
INSURANCE
SECTION 11.01 The Tenant agrees to maintain in full force throughout the
demised term, at its own cost and expense, one or more policies of public
liability and property damage insurance having a combined single limit of One
Million Dollars ($1,000,000.00) which, up to the maximum liability amounts
thereof, insure the Tenant and the Landlord (and such other person(s) designated
by the Landlord having an insurable interest) against liability for injury to
persons occurring (or death) and/or property of any person or persons in the
Demised Premises. The insurance required by this Section shall be primary
insurance and the insurer shall be liable for the full amount of the loss up to
and including the total limit of liability as set forth in the declarations
without the right of contribution from any other insurance coverage held by
Tenant.
SECTION 11.02 During the lease term Tenant shall maintain in full force on
all its fixtures and equipment in the Demised Premises a policy or policies of
fire insurance insuring Landlord and Tenant with standard extended coverage
endorsements to the extent of at least eighty percent (80%) of their insurable
value
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containing the proper co-insurance provisions to prevent Tenant from being a co-
insurer.
SECTION 11.03 All insurance required to be secured by the Tenant in
accordance with this Article 11 shall be obtained from insurance companies
licensed to do business in the State of New York and Certificates of said
insurance shall be furnished by the Tenant to the Landlord each of which
policies shall be endorsed to provide that thirty (30) days notice of
cancellation or amendment will be given to the Landlord. Upon Tenant's failure
to procure such insurance or to cause Tenant's vendors/contractors to procure
said insurance as required in Section 11.07 below, as the case may be, and
deliver the policy or policies or certificates therefor to the Landlord prior to
the commencement of the term hereunder or, in the case of any said
vendors/contractors, prior to the commencement of any said work, labor or
services, or thirty (30) days before the expiration of any policy delivered to
the Landlord, the Landlord may, at its option, obtain such insurance or any of
same and the premium therefor shall be deemed to be and be paid as additional
rent at the next rent payment day.
SECTION 11.04 Landlord shall keep the Building containing the Demised
Premises insured against loss or damage by fire with extended coverage
endorsement in an amount not less than eighty (80%) of the full insurable value
thereof.
SECTION 11.05 Tenant shall not do or permit to be done any act or thing in
or upon the Demised Premises which will
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invalidate or be in conflict with the certificate of occupancy or the terms of
the New York State standard form of fire, boiler, sprinkler, water damage or
other insurance policies covering the building and/or the fixtures, equipment
and property therein. Tenant shall, at its own expense, comply* with all rules,
orders, regulations or requirements of the New York Board of Fire Underwriters
or any other similar body having jurisdiction provided same relate to its use or
occupancy of the Demised Premises and shall not knowingly do or permit anything
to be done in or upon the Demised Premises or bring or keep anything therein or
use the Demised Premises in a manner which increases the rate of insurance upon
the Building or any property or equipment located therein over the rate in
effect at the commencement of the term of this Lease. [* Notwithstanding the
foregoing, Tenant, in so complying, shall not be required to make structural
repairs to the Building or to the Demised Premises unless caused by Tenant's
SPECIFIC use (i.e. unique to Tenant and not reasonably anticipated for a
"normal" corporate use).]
SECTION 11.06 If because of anything done, caused or permitted to be done
or omitted by Tenant the rate of liability, fire, boiler, sprinkler, water
damage or other insurance with all extended coverage on the Building or on the
property and equipment of Landlord or any other tenant or subtenant in the
Building shall be higher than it otherwise would be, Tenant shall reimburse
Landlord and the other tenants and subtenants in the Building for the additional
insurance premiums thereafter paid by Landlord or by other tenants and
subtenants in the Building which
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shall have been charged because of the aforesaid reasons and Tenant shall make
the reimbursement on the first day of the month following such payment by
Landlord or such other tenants or subtenants.
SECTION 11.07 Tenant agrees to cause any vendors*/contractors doing work,
labor or services, on or behalf of Tenant, in or about the Demised Premises to
maintain while performing said work, labor or services, at their own cost and
expense, one or more policies of public liability and property damage insurance
having a combined single limit of One Million Dollars ($1,000,000.00) which, up
to the maximum liability amounts thereof, insure the said vendor/contractor,
Tenant and the Landlord (and such other person(s) designated by the Landlord
having an insurable interest) against liability for injury to persons occurring
(or death) and/or property of any person or persons in or about the Demised
Premises. The insurance required by this Section shall be primary insurance and
the insurer shall be liable for the full amount of the loss up to and including
the total limit of liability as set forth in the declarations without the right
of contribution from any other insurance coverage held by Tenant. [* Except
for moving contractors or construction contractors, etc., said insurance shall
be required only of contractors/vendors who perform services, in any one lease
year, that exceed, or will reasonably exceed, $500 in value.]
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ARTICLE 12
RULES AND REGULATIONS
SECTION 12.01 The Tenant shall observe faithfully and comply strictly
with, the reasonable rules and regulations reasonable promulgated from time to
time by the Landlord, as in the Landlord's reasonable judgment are necessary for
the safety, care and cleanliness of the Building or for the preservation of good
order therein but such rules and regulations shall not affect the substance of
this agreement (as distinguished from the procedural and administrative
considerations of the operation of the Demised Premises, the Building and the
Park). The Landlord shall not be liable to the Tenant for violation of such
rules and regulations by any other Tenant, its servants, employees, agents,
visitors or licensees. The current Rules and Regulations* are attached hereto
and made a part hereof. Landlord shall not be responsible for the non-
observance by any other Tenant of any said Rules and Regulations, or the
covenants or agreements contained in any other lease, by any other Tenant of the
Building, or its agents or employees. [* Which shall be uniform in their
application by Landlord to all Tenants of the Building. Nothing herein shall be
deemed to obligate Landlord to commence a legal action or proceedings against a
Tenant of the Building either to enforce any said Rule or Regulation or to
enjoin their violation.]
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ARTICLE 13
SUBORDINATION
SECTION 13.01 This Lease shall be subordinate and subject at all times to
all ground or underlying leases and to any mortgage covering the Building or
which at any time hereafter shall be made, and to all advances made, or
hereafter to be made, upon the security of any such mortgagee. See Rider 1,
Paragraph 6.
ARTICLE 14
DEFAULT
SECTION 14.01 If the Tenant shall at any time be in default continuing
after fifteen days written notice thereof in the payment of any rent or any
additional rent or any other payments required of Tenant hereunder, or any part
thereof, without demand therefor, or if Tenant, after fifteen days written
notice by Landlord to Tenant, shall be in default in any of the other covenants
and conditions of this Lease to be kept, observed and performed by Tenant, or if
Tenant shall vacate or abandon the premises during the term hereof, or if this
leasehold interest shall be levied on or taken or attempted to be taken by
execution, attachment, or other process of law, or if any execution or
attachment shall be issued against Tenant, or any of Tenant's property in the
Demised Premises, whereby the Demised Premises shall be taken or occupied or
attempted to be taken or occupied by someone other than Tenant, or if a
receiver, assignee
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or trustee shall be appointed for Tenant or Tenant's property, or if this Lease
shall by operation of law devolve upon or pass to any person or persons other
than the Tenant, then in any of said cases, and subject to the provisions in
Section 14.02 below, the Landlord may:
A. [intentionally deleted]
B. enter* into the Demised Premises, remove* Tenant's property and
effects as elsewhere in the Lease provided, take* and hold* possession thereof,
without such entry and possession terminating this Lease or releasing Tenant in
whole or in part from Tenant's obligations to pay rent and all its other
obligations hereunder for the full term. Relet the Demised Premises or any part
or parts thereof, either in the name of or for the account of Landlord or
Tenant, for such rent and for such term and terms as Landlord may see fit, which
term may, at Landlord's option, extend beyond the balance of the term of this
Lease. Landlord shall not be required to accept any tenant offered by Tenant or
to observe any instructions given by Tenant about such reletting. In any such
case Landlord may make such repairs, alterations** and additions** in or to the
Demised Premises and redecorate** the same as it sees fit. Tenant shall pay
Landlord any deficiency between the rent hereby reserved and covenanted to be
paid and the net amount of the rents collected on such reletting, for the
balance of the term of this Lease, as well as any expenses incurred by Landlord
in such reletting, including, but not limited to reasonable attorneys' fees
("reasonableness" shall be based upon the amount of time and
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effort expended by the attorneys without regard to the amount in controversy),
brokers' fees, the expense or repairing, altering** and adding to** and
redecorating** the premises, and otherwise preparing the same for re-rental.
All such costs, other than the rental, shall be paid by Tenant upon demand by
Landlord. Any deficiency in rental shall be paid in monthly installments, upon
statements rendered by Landlord to Tenant, unless Landlord has declared the
entire rental for the balance of the term due, as elsewhere in this Lease
provided. Any suit brought to collect the amount of the deficiency for any one
or more months shall not preclude any subsequent suit or suits to collect the
deficiency for any subsequent months; [*Only in accordance with New York State
statutory law.] [**Notwithstanding the foregoing, said costs shall not exceed
$25,000.00.]
C. require that upon any termination of this Lease, whether by lapse
of time, the exercise of any option by Landlord to terminate the same, or in any
other manner whatsoever, or upon any termination of this Lease, the Tenant shall
at once surrender possession of the Demised Premises to the Landlord and
immediately vacate the same, and remove all effects therefrom, except such as
may not be removed under other provisions of this Lease. If Tenant fails to do
so Landlord may forthwith re-enter said the Demised Premises, with or without
process of law, and repossess itself thereof as in its former estate and expel
and remove Tenant and any other persons and property therefrom, using such force
as may be necessary, without being deemed guilty of trespass, eviction or
forcible entry, without thereby waiving
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Landlord's rights to rent or any other rights given Landlord under this Lease or
at law or in the equity;
D. if the Tenant shall not remove all effects from the Demised
Premises as in this Lease provided, at Landlord's option, Landlord may remove
any or all of said effects in any manner that Landlord shall choose and store
the same without liability for loss thereof and Tenant will pay the Landlord, on
demand, any and all expenses incurred in such removal and also storage of said
effects for any length of time during which the same shall be in Landlord's
possession or in storage; or Landlord may, at its option, without notice, sell
any or all of said effects in such manner and for such price as the Landlord may
deem best and apply the proceeds of such sale upon any amounts due under this
Lease from the Tenant to the Landlord, including the expenses of removal and
sale;
E. [intentionally deleted]
F. in the event of a breach, or threatened breach, by Tenant of any
of the covenants or provisions of this Lease, have the right to enjoin any such
breach or threatened breach; and
G. declare the entire rental for the balance of the term or the
entire term immediately due and payable at once.
SECTION 14.02 Except for the nonpayment of rent, additional rent or any
other charges or payment the responsibility of Tenant to make hereunder, Tenant
shall not be in default upon the occurrence of any of the events referred to in
Section 14.01 above (except for the nonpayment of rent, additional rent or any
other charge or payment the responsibility of Tenant to make
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hereunder) if, during the the said fifteen day notice period, Tenant cures said
default. If, however, the said default shall be of such a nature that the same
cannot be completely cured or remedied within said fifteen day period, then
Tenant shall not be in default if, during the said fifteen day period Tenant
shall have commenced to cure said default and thereafter continuously and
diligently takes such action and actions as are necessary to cure said default
at the earliest possible time but in no event, however, shall the time within
which Tenant shall have to cure said default be extended beyond sixty (60) days
from the giving of the said fifteen days notice.
SECTION 14.03 Except for the fifteen days notice referred to in Section
14.01 above, Tenant expressly waives the service of any demand for payment of
rent. Tenant hereby expressly waives any and all rights of redemption granted
by or under any present or future laws, in the event of eviction or
dispossession of Tenant by Landlord under any provisions of this Lease. No
receipt of monies by the Landlord from or for the account of Tenant or from
anyone in possession or occupancy of the Demised Premises after the termination
in any way of this Lease or after the giving of any notice, shall reinstate,
continue or extend the term of this Lease or affect any notice given to the
Tenant prior to the receipt of such money, it being agreed that after final
judgment for possession of the Demised Premises, the Landlord may receive and
collect any rent or other amounts due Landlord and such payment shall not waive
or affect said notice, said suit or said judgment.
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SECTION 14.04 The Tenant waives a trial by jury of any or all issues
arising in any action or proceeding between the parties hereto, or their
successors, arising out of or in any way connected with this Lease, or any of
its provisions, the Tenant's use or occupancy of the Demised Premises and/or any
claim of injury or damage.
SECTION 14.05 Any and all rights and remedies which Landlord may have
under this Lease and at law or in equity, shall be cumulative and shall not be
deemed inconsistent with each other, and any two or more or all of said rights
and remedies may be exercised at the same time or at different times and from
time to time.
SECTION 14.06 The Tenant covenants and agrees to pay on demand Landlord's
expenses, including reasonable attorneys' fees ("reasonableness shall be based
upon the amount of time and effort expended by the attorneys without regard to
the amount in controversy), incurred in enforcing any obligation of the Tenant
under the Lease or in curing any default by Tenant under this Lease.
SECTION 14.07 If any of the aforesaid provisions or any other provision of
this Lease shall be unenforceable or void, said provisions(s) shall be deemed
eliminated and of no force and effect and the balance of this Lease shall
continue in full force and effect. If any notice is required by law to be
given, such notice shall be given.
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SECTION 14.08 The Landlord shall have the first lien on Tenant's interest
in this Lease to secure the payment and performance of Tenant's obligation
hereunder, prior and preferable to all other liens.
SECTION 14.09 The Tenant shall not permit any mechanics' or materialmen's
liens to be filed against the fee of the real property of which the Demised
Premises from a part nor against the Tenant's leasehold interest in the Demised
Premises. The Landlord shall have the right at all reasonable times to post and
keep posted on the Demised Premises any notice which it deems necessary for
protection from such liens. If any such liens are so filed, the Landlord, at
its election, may pay and satisfy the same and in such event the sums so paid by
the Landlord with maximum permissible interest from the date of payment, but not
to exceed 12% per annum, shall be deemed to be additional rent due and payable
by the Tenant at once without notice or demand.
ARTICLE 15
OCCUPANCY AFTER TERM EXPIRATION
SECTION 15.01 If the Tenant shall continue to occupy the Demised Premises
after the expiration of the said term, with the consent of the Landlord, such
tenancy shall be from month to month, and in no event from year to year, upon
the same terms and conditions, except the monthly rental shall be increased to
125% of the monthly rental for the last month of the demised term.
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ARTICLE 16
EMINENT DOMAIN
SECTION 16.01 If the whole or any part of the Demised Premises or the
Building shall be taken or condemned by any competent authority under power of
eminent domain for a public or quasi public use or purpose, then, at the option
of either party, to be exercised by written notice to the other, the term hereby
granted shall cease from the time when possession of the part so taken shall be
required for such public or quasi public use or purpose, and without an
apportionment of the award, the Tenant hereby assigning to the Landlord all
right and claim to the award. The current rent, however, in such case shall be
apportioned. Landlord's said notice, to be effective, must be given to Tenant
no later than thirty (30) days after Landlord's receipt of the "Notice of
Taking". Tenant's said notice, to be effective, must be given to Landlord no
later than thirty (30) days after Landlord gives Tenant notice of Landlord's
receipt of the "Notice of Taking".
ARTICLE 17
FIRE, CASUALTY, ETC.
SECTION 17.01 In the event that the Building be damaged or destroyed by
fire, the elements or casualty, this Lease shall continue in full force and
effect, but the Landlord, subject to there being adequate insurance proceeds
available to Landlord for the full loss thereof, shall forthwith repair such
damage or
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destruction, provided such repairs can be made under the laws and regulations of
State, County, Federal or Municipal authorities; except that if said building is
so damaged or destroyed to the extent of not less than one-third (1/3) of the
replacement cost thereof, or if said insurance proceeds to Landlord are not so
adequate, as determined by the Landlord, the Landlord, at its option (to be
exercised within ninety (90) days from the date of such damage or destruction),
may terminate this Lease. The Tenant shall be entitled to a proportionate
reduction of rent while such repairs are being made only if the Demised Premises
are untenantable, such proportionate reduction to be based upon the extent that
the Demised Premises, or part thereof, may be untenantable and for the period
that said premises, or part thereof, may be untenantable and no such rent
reduction shall be allowed by reason of inconvenience, annoyance or injury to
the Tenant's business because of such damage or destruction, or the necessity of
repairing any portion of the Building, or the making of such repairs, and the
Landlord shall not be liable to the Tenant because of such inconvenience,
annoyance or injury. Tenant hereby expressly waives the provisions of Section
227 of the Real Property Law and agrees that the foregoing provisions shall
govern and control in lieu thereof.
SECTION 17.02 Landlord shall not be responsible to Tenant for any loss or
theft of property in or from the Demised Premises, or for any loss or theft or
damage of or to any property left with any employee of Landlord, however
occurring. Landlord shall not be liable for any damage caused by water,
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rain, snow or ice, or by breakage, stoppage or leakage of water, gas, heating,
air-conditioning, sewer or other pipes or conduits, or arising from any other
cause, in, upon, about or adjacent to the Demised Premises, or the Building.
ARTICLE 18
ESCALATIONS
SECTION 18.01 The Tenant hereby agrees to pay, as additional rent, a pro
rata portion of the amount by which any of each of the yearly "building
operating costs" incurred by the Landlord during each year occurring during the
term of this Lease, commencing January 1, 1994, exceed the cost of each said
respective building operating cost incurred by the Landlord during the period
January 1, 1993, through December 31, 1993, (the "Operating Year"). The
Tenant's pro rata portion of said amount shall equal the percentage which the
rentable area (as herein defined) of the Demised Premises bears to the rentable
area of the Building or, if applicable, buildings in the Park (said allocation
of costs to be fair and equitable, in accordance with and in proportion to the
gross square footage of the Building so that each building in the Park bears, in
proportion to its respective size, its proportionate share of said cost(s),** as
determined in good faith by the Landlord's architect. A "Building operation
cost"***, **** shall be defined to include the cost to the Landlord of all
utilities, fuel, janitorial services for common areas, janitorial services
for the Demised Premises ("interior cleaning"), lighting of common areas,
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insurance, snow plowing, security, landscaping, repairs to the heating,
ventilating and air conditioning system servicing the Demised Premises and the
Building, elevator maintenance, refuse removal, recycling costs, roof repairs,
* maintenance and service (including but not limited to service contracts) of
security/safety equipment and automatic/electronic and/or magnetic exterior
entrance door locking devices and real estate taxes and other municipal
services rendered by the appropriate municipal authorities or quasi-
governmental authorities payable by the Landlord and allocable to the buildings
and the land on which the buildings stand and adjacent land owned by the
Landlord which is part of the Park. The Landlord, in good faith, shall
conclusively determine the amount of each such yearly building operating
cost(s) and once each year during the term, commencing on January, 1996 shall
notify the Tenant, in writing, of additional rent payable on account of its
pro rata portion of any such increases of each said building operating cost(s)
from the preceding operating year, together with an itemized statement thereof.
For a period of one year after said notification, Tenant shall have the right
to inspect the Landlord's cost records at the office of the Landlord. Thus,
in January ___, 1996, the Landlord shall notify the Tenant of additional rent
payable on account of its pro rata portion of the increase, if any, of any such
costs for the preceding operating year over the year January 1, 1994, through
December 31, 1994. The portion of such additional rent allocable to the months
of the then current
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calendar year (including the month in which such notice is received) which have
then elapsed (computed on the basis of one-twelfth of the Tenant's pro rata
portion of such increase for each elapsed month) shall be due and payable to the
Landlord forthwith; thereafter, the Tenant shall pay, without invoice, on the
first day of each succeeding month one-twelfth of its pro rata portion of such
increase until the expiration of the term. In each of the next following years,
if the Landlord notifies the Tenant of further additional rent payable on
account of its pro rata portion of any further increase of any such costs during
the prior calendar year, such further additional rent shall be payable in like
manner; namely, the Tenant's pro rata portion of such further increase allocable
to the elapsed months of the then current year shall be payable forthwith by the
Tenant, and one-twelfth of the Tenant's pro rata portion of such further
increase shall be payable on the first day of each succeeding month until the
expiration of the term. [*"Roof repairs" shall apply only to reasonable repair
and expense expenditures reasonably a part of ongoing maintenance and shall not
apply to roof "replacement" or other such items.] [**based upon 90% occupancy
of the Building] [***Said "Building operating costs" shall be reasonable and,
to the extent performed by Landlord, shall be at costs which will not exceed
what would be charged by third party vendors/contractors for similar services.]
[****"Building operating cost" will include items capitalized by Landlord but
such repairs shall apply only to reasonable repair
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and expense expenditures reasonably a part of ongoing maintenance and shall not
apply to replacement or such other items. Provided, however, "capitalized
items" shall not be deemed to include (and therefore shall be part of building
operating costs) HVAC compressors, condensing units, fan motors, accumulators or
dryers.]
Computations relating to the increases in real estate taxes shall be
computed on and as if the Building is fully assessed as a completed building at
90% occupancy prior to or at the commencement of the Operating Year and in such
event it is agreed that during any such lease year when the Building is less
than fully assessed as a completed building, for the purpose of calculating real
estate tax escalation charges, the tax RATE(S) existing during the Operating
Year shall be applied to the final assessment AS IF the Building had been fully
assessed during the Operating Year. The resulting amount(s) shall be used for
calculating real estate tax escalations pursuant to this Article.
SECTION 18.02 For purposes of the Lease, real estate taxes shall be
defined as follows: (i) all real estate taxes, including but not limited to
town, county and school taxes payable (adjusted after protest or litigation, if
any) for any part of the term of this Lease, including any extension period
hereof, but exclusive of penalties or discounts, on the Building or the Park to
the extent reasonably allocable to the Building; (ii) any taxes which shall be
levied in lieu of the taxes described in (i) above; (iii) Pure Waters charges,
sewer district charges and any assessments (special or otherwise) made against
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the Building and/or the Park which shall be required to be paid during the
calendar year or fiscal year in respect to which they are being determined, (iv)
any water pollution charges, (v) and any other governmental real estate taxes,
levies, impositions or charges of a similar or dissimilar nature, whether
general, special, ordinary, extraordinary, foreseen or unforeseen which may be
assessed, levied or imposed upon all or any part of the Building and/or the
Park, and (vi) the reasonable expense of contesting the amount or validity of
any such taxes, charges or assessments, such expense (including reasonable
attorneys' fees) to be applicable to the period of the item contested.
SECTION 18.03 Tenant shall pay prior to delinquency all taxes assessed
against or levied upon its occupancy of the Demised Premises, or upon the
fixtures, furnishings, equipment and all other personal property of Tenant
located in the Demised Premises other than those furnished and paid for by
Landlord, if nonpayment thereof shall give rise to a lien on the real estate,
and when possible Tenant shall cause said fixtures, furnishings, equipment and
other personal property to be assessed and billed separately from the property
of Landlord. In the event any or all of Tenant's fixtures, furnishings,
equipment and other personal property, or upon Tenant's occupancy of the Demised
Premises, shall be assessed and taxed with the property of Landlord, Tenant
shall pay to Landlord its share of such taxes within ten (10) days after
delivery to Tenant by Landlord of a statement in writing setting forth the
furnishings, equipment or personal property.
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SECTION 18.04 Should any governmental taxing authority acting under any
present or future law, ordinance or regulation, levy, assess or impose a tax,
excise, surcharge and/or assessment (other than a tax on net rental income or
franchise tax) upon or against the rents payable by Tenant to Landlord, or upon
or against the Building, the Building Common Areas, either by way of
substitution for or in addition to any existing tax on land or buildings or
otherwise, Tenant shall be responsible for and shall pay Tenant's pro rata of
such tax, excise, surcharge and/or assessment.
SECTION 18.05 Should any alteration or improvement performed by Tenant,
during the term of this Lease, cause an increase in assessment, Tenant shall pay
to Landlord the cost of all taxes resulting from such increase in assessment.
Any amount paid separately hereunder by Tenant to Landlord shall be in addition
to any amounts paid by Tenant pursuant to Section 18.02 above.
SECTION 18.06 Nothing herein contained shall require Tenant to pay
municipal, state or federal income taxes assessed against Landlord, municipal,
state, or federal, estate, succession, inheritance or transfer taxes of
Landlord, or corporation franchise taxes imposed upon any corporate owner of the
fee of the Demised Premises'; provided, however, that if at any time during the
term of this Lease or any renewal thereof there shall be levied, assessed and
imposed, (i) a municipal, state or federal tax, assessment, levy, imposition or
charge, wholly or partially as a capital levy, sales tax, use tax, excise tax or
-35-
other tax or charge, on the rents received by Landlord from the Demised
Premises, or (ii) a license fee measured by the rent payable by Tenant under
this Lease, then all such taxes, assessments, levies, impositions or charges or
the part thereof so measured or based (to the extent that such tax, assessment,
levy, imposition or charge would be payable if the Demised Premises were the
only property of Landlord subject to such taxes, assessments, levies,
impositions or charges) shall be paid by Tenant within ten (10) days after
receipt of an invoice therefor from Landlord.
ARTICLE 19
PURE WATERS, POLLUTION AND SEWERAGE
SECTION 19.01 Tenant shall be responsible for and pay upon being billed
therefor by Landlord with Landlord, upon Tenant's written request, exhibiting
receipted bills for the charges, Tenant's pro rata share defined for the purpose
of this paragraph to be that proportion that Tenant's rentable area (which shall
include Tenant's pro rata share of the INTERIOR hallways, if any, but which
shall not be deemed to include the entrance lobby) bears to the total rentable
area of the Building, of all water, Pure Waters District charges, pollution
charges and sewerage charges assessed against the Building for water and
sewerage consumed in, about or for the benefit of the Building including the
land immediately surrounding the Building.
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ARTICLE 20
SURVIVAL OF TENANT'S OBLIGATIONS
SECTION 20.01 The obligation of Tenant to pay the charges referred to in
Article 18 and 19 of this Lease that accrue during the term of this Lease shall
survive the expiration or early termination of this Lease.
ARTICLE 21
ENTIRE AGREEMENT, TIME OF THE
ESSENCE AND NONWAIVER
SECTION 21.01 This Lease contains all the agreements of the parties.
There have been no representations made by the Landlord or understandings made
between the parties other than those set forth in this Lease. This Lease may
not be modified except by written instrument duly executed by the parties
hereto. Receipt of rent with knowledge of a default by the Tenant will not
condone, forgive or waive such default. Failure by the Landlord to enforce any
of the provisions hereof for any length of time shall not be deemed a waiver of
its rights set forth in this Lease, but such waiver may only be made by
instrument in writing and signed by the Landlord. Time is of the essence with
respect to all payments and performances required of the Tenant by the
provisions of this Lease.
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ARTICLE 22
INDEMNIFICATION OF LANDLORD
SECTION 22.01 Tenant shall indemnify, defend and save Landlord harmless
from and against any and all loss, liability, damage or expense including
reasonable attorneys' fees ("reasonableness shall be based upon the amount of
time and effort expended by the attorneys without regard to the amount in
controversy) suffered or incurred by Landlord because of (i) the negligence of
Tenant, or Tenants' agents, contractors and employees, (ii) any act or
occurrence in the Demised Premises, unless caused by the negligence of Landlord,
its agents, contractors or employees, or the intentional act of Landlord (iii)
judgments, citations, fines or other penalties rendered or assessed against
Landlord (with the exception of any claims under any worker's compensation laws)
as a result of Tenant's failure to abide by and to undertake the duty of
compliance on behalf of Landlord with all federal, state and local laws, safety
and health regulations relating to the interior and other portions of the
Demised Premises which Tenant has assumed the duty to maintain pursuant to this
Lease, provided that Landlord agrees to give Tenant prompt notice of any such
violation asserted by any government agency, and (iv) any and all claims and
liabilities which may arise out of or be connected with any improvements,
alterations and additions undertaken by Tenant with regard to the Demised
Premises including any liens for labor and material arising from such work.
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SECTION 22.02 (a) Except as provided in Section 22.02(b) hereof, Landlord
shall indemnify Tenant against loss, liability or damages to third parties as a
result of any personal injury, death, or property damage that occurs in the
Common Area solely as a result of the negligence of the Landlord, its agents,
servants or employees.
(b) The indemnity shall not apply to loss, liability or damages with
respect to vehicles except for vehicles owned or operated by Landlord,
Landlord's employees, or Landlord's agents; to loss, liability or damages with
respect to arrests or apprehensions in the Common Area; to loss, liability or
damages with respect to products; claims under Workers' Compensation laws; or
loss, liability or damages caused by the negligence of Tenant or its agents,
servants or employees.
(c) Landlord shall have the sole right to and shall defend any lawsuits
with respect to claims for loss, liability or damage against which the indemnity
provided in Section 22.02(a) applies and pay any judgments which result from the
lawsuits. "Lawsuits" include arbitration proceedings and administrative
proceedings and all other governmental and quasi-governmental proceedings.
"Liabilities" include the fees and disbursements of attorneys and witnesses.
ARTICLE 23
NONDELIVERY OF PREMISES
SECTION 23.01 In the event of the failure of the Landlord to deliver
possession of the Demised Premises at the time of the
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commencement of the term of this Lease, neither the Landlord nor its agents
shall be liable for any damage caused thereby, nor shall this Lease thereby
become void or voidable, but in such event the Tenant shall not be liable for
any rent until such time as the Landlord can deliver possession. See Rider 1,
Paragraph 5
ARTICLE 24
SECURITY DEPOSIT*
[*See page 26A attached hereto and made a part hereof.]
SECTION 24.01 Tenant has deposited with Landlord the sum of $8,000.00 as
security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this Lease; it is agreed that in the event Tenant
defaults in respect of any of the terms, provisions and conditions of this
Lease, including but not limited to the payment of rent, Landlord may, at its
option, use, apply or retain the whole or any part of the security so deposited
to the extent required for the payment of any rent or any sum as to which Tenant
is in default or for any sum which Landlord may 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 reletting of the
Demised Premises, whether such damages or deficiency accrued before or after
summary proceedings or other re-entry by Landlord. 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, without interest
to Tenant after the date fixed as the end of the
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Lease and within a reasonable time after delivery of entire possession of the
Demised Premises to Landlord. In the event of a sale of the land and/or
Building or leasing of the Building, of which the Demised Premises form a part,
Landlord shall have the right to transfer the security to the vendee or lessee,
and Landlord shall thereupon be released by Tenant from all liability for the
return of such security; and Tenant agrees to look to the new Landlord 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
Landlord. 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 Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
Notwithstanding the terms and provisions of Article 24 above, Tenant shall
not be required to deposit the said security deposit referred to therein unless
the Demised Premises, or a portion thereof, have been sublet or this Lease has
been assigned. Notwithstanding anything herein to the contrary, no such sublet
or assignment shall be effective until and unless Landlord has received the said
security deposit.
ARTICLE 25
WAIVER OF SUBROGATION
SECTION 25.01 Notwithstanding anything in this Lease contained to the
contrary:
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Landlord shall insure the Building and Tenant shall insure
the Demised Premises and its fixtures and contents, against fire and other cases
included in standard extended coverage by policies which shall include a waiver
by the insurer of all right of subrogation against Landlord or Tenant, their
officers, directors, employees, invitees, and in case of Tenant, its subtenants,
in connection with any loss or damage thereby insured against. Neither party,
nor its officers, directors, employees, agents or invitees, nor, in case of
Tenant, its subtenants (if Tenant shall have sublet in accordance with the terms
herein), shall be liable to the other for loss or damage caused by any risk
covered by such insurance. If the release of either Landlord or Tenant, as set
forth in this paragraph, shall contravene any law with respect to exculpatory
agreements, the liability of the party in question shall be deemed not released
but shall be secondary to the other's insurer.
ARTICLE 26
BROKERAGE
SECTION 26.01 Tenant and Landlord represent and warrant that they have
dealt with no broker, agent or other real estate sales person in connection with
this Lease other than Re/Max Commercial Properties, David Wallace, Broker, the
commission to which shall be paid by Landlord, and that, other than as herein
expressly set forth, no broker, agent or such other person brought about this
transaction. Tenant and Landlord agree to indemnify and hold each other
harmless from and against any
-42-
claims by any other broker, agent or other real estate sales person claiming a
commission or other form of compensation by virtue of this Lease or of having
dealt with Tenant or Landlord with regard to this leasing transaction and should
a claim for such commission or other compensation be made it shall be promptly
paid or bonded by the party who has dealt with the person or entity making such
claim. The provisions of this Article shall survive the termination of this
Lease.
ARTICLE 27
FORCE MAJEURE
SECTION 27.01 Except as otherwise provided in this Lease and except as to
the payment of rent or other monies due under this Lease neither party shall be
responsible for delays or inability to perform its obligations hereunder for
causes beyond the control of such party including acts of other tenants,
governmental restriction, regulation or control, labor dispute, accident,
mechanical breakdown, shortages or inability to obtain labor, fuel, steam,
water, electricity or materials, acts of God, enemy action, civil commotion, or
fire or other casualty.
ARTICLE 28
MISCELLANEOUS PROVISIONS
SECTION 28.01 No receipt of money by Landlord from Tenant after the
termination of this Lease or after the service of any notice or after the
commencement of any suit or after final judgment for possession of the Demised
Premises shall reinstate,
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continue or extend the term of this Lease or affect any such notice, demand or
suit or imply consent for any action for which Landlord's consent is required.
SECTION 28.02 No waiver of any default of Tenant or of Landlord hereunder
shall be implied from any omission by Landlord or Tenant, as the case may be, to
take any action on account of such default if such default persists or be
repeated, and no express waiver shall affect any default other than the default
specified in the express waiver and that only for the time and to the extent
therein stated.
SECTION 28.03 The term "Landlord" as used in this Lease, so far as
covenants or agreements on the part of Landlord are concerned, shall be limited
to mean and include only the owner or owners of Landlord's interest in this
Lease at the time in question, and in the event of any transfer or transfers of
such interest, Landlord herein named (and in case of any subsequent transfer,
the then transferor) shall be automatically freed and relieved from and after
the date of such transfer of all personal liability from events which occur
after the date of transfer. Any such release of Landlord under this paragraph
shall become effective only at such time Landlord's transferee is deemed to be
bound to the terms and provisions of this Lease. It is agreed, however, that
Landlord shall reimburse Tenant for any overpayments of rent made by Tenant
prior to the assignment and any prepayment of rent for months subsequent to the
assignment.
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ARTICLE 29
ESTOPPEL CERTIFICATES
SECTION 29.01 Landlord and Tenant agree that from time to time upon not
less than five (5) days prior request of the other, to deliver to the party
making the request a statement in writing (the "Certificate") certifying (a)
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 and modified and
identifying the modifications), (b) the dates to which the rent and other
charges have been paid, and (c) that, so far as the person making the
certificate knows, the other party is not in default under any provision of this
Lease, or if such were not to be the fact, then certifying such default of which
person making the certificate may have knowledge. It is agreed that the
certificate may be relied upon by the party requesting it or by any other person
to which it may be exhibited or delivered. The contents of the certificate
shall be binding on the party on behalf of which it shall have been executed.
ARTICLE 30
QUIET ENJOYMENT
SECTION 30.01 The Landlord covenants and agrees that the Tenant on paying
said rent and performing the covenants aforesaid shall and may peaceably and
quietly hold and enjoy the said Demised Premises for the term aforesaid.
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ARTICLE 31
EXECUTION
SECTION 31.01 This Lease shall not be binding and in effect until a
counterpart hereof has been executed and delivered by the parties each to the
other.
ARTICLE 32
PROVISIONS BINDING, ETC.
SECTION 32.01 This Lease shall bind and inure to the benefit of the
parties hereto and their respective heirs, representatives, successors and
assigns (provided that this Lease shall not inure to the benefit of any assignee
pursuant to an assignment which is not in compliance with the terms of this
Lease).
ARTICLE 33
INVALID PROVISIONS SEVERABLE
SECTION 33.01 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 and each term and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
-46-
ARTICLE 34
RENTABLE AREA DEFINED
SECTION 34.01 "Rentable area", as referred to herein, shall be defined as
follows:
a. If the Demised Premises consist of the entire Building
(single Tenant building), then the rentable area shall be calculated by
measuring from the outside face of the exterior walls of the said Building; or
b. If the Demised Premises consist of less than an entire
Building (multi-tenant building), then the rentable area shall be calculated by
measuring from the outside face of all perimeter exterior walls to the center
line of Tenant separating walls, shall include the area of the "vestibule"
entrance area to the Demised Premises, and include a proportionate share of the
common halls, lobbies, public bathrooms, stairwells and elevator core (if any)
of the Building; but said proportionate share shall not increase the rentable
square footage calculated as aforesaid by an amount greater than 10%.
ARTICLE 35
PRONOUNS INTERCHANGEABLE
SECTION 35.01 Feminine, neuter and masculine pronouns, the plural and the
singular, shall be construed to be and shall be interchangeable, in any place or
places herein in which the context may require such interchange.
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ARTICLE 36
RIDER
SECTION 36.01 In the event there are Riders and/or Exhibits attached
hereto they shall be deemed a part hereof and in any case where the provisions
of any said Rider and/or Exhibits shall conflict with or be contrary to the
provisions contained in this, the main portion of this Lease Agreement, the
provision of said Rider(s) and/or Exhibits shall control.
ARTICLE 37
LATE CHARGE: ADDITIONAL RENT
SECTION 37.01 All rental payments, any additional rent herein and any and
all payments due under the provisions of this Lease Agreement from Tenant,
unless herein otherwise specifically referred to, shall be received by Landlord
no later than 4:00 p.m. on the 1st day of each month (in the case of rent and
additional rent) or within fifteen (15) days of being invoiced therefor,
whichever is applicable, after which there shall be a 5% late charge calculated
on the amount then due. In the event, however, that said late charge were to
exceed that permitted by law, the said charge due hereunder shall immediately
and automatically be reduced to the maximum then permitted by law. Any charges
or payments due to Landlord from Tenant arising out of the terms and provisions
of this Lease or as the result of Tenant's occupation of the Demised Premises,
including but not limited to services, labor or materials furnished or performed
at Tenant's request; shall be deemed additional rent hereunder and
-48-
shall be deemed due and payable within fifteen (15) days after a statement is
rendered therefor.
ARTICLE 38
ARTICLE TITLES
SECTION 38.01 The Article titles are inserted as a matter of convenience
and for reference and in no way define, limit or describe the scope or intent of
this Lease nor in any way affect this Lease.
ARTICLE 39
INTERIOR CLEANING
SECTION 39.01 Landlord agrees to provide cleaning services ("interior
cleaning")* for the cleaning of the interior of the Demised Premises in
accordance with Exhibit C which is attached hereto and made a part thereof.
[*included as part of "rent" in Section 2.01 above (subject to increase in
accordance with the provisions of Article 18 above).]
ARTICLE 40
MISCELLANEOUS
SECTION 40.01 This Lease Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York and without the
aid of any canon, custom or rule of law requiring construction against the
draftsman. Landlord and Tenant hereby submit to personal jurisdiction in the
courts of the State of New York for the enforcement of their respective
obligations hereunder, and Landlord and Tenant each waives any
-49-
and all personal rights under the law of any other state or country to object to
jurisdiction within the State of New York for the purposes of an action to
enforce such obligations and the venue for any such actions shall be in Monroe
County, New York.
ARTICLE 41
PROVISIONS, BINDING, ETC.
SECTION 41.01 The conditions, covenants and agreements in this Lease
contained to be kept and performed by the parties hereto shall be binding upon
and inure to the benefit of said respective parties, their legal
representatives, successors and assigns. This Section shall not be construed to
permit any assignment or subletting, unless otherwise permitted in this Lease,
without Landlord's consent. The term "Landlord" as used in this Lease means
only the owner for the time being of the land and building (or the owner of a
Lease of the 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, the said Landlord shall be and hereby is entirely
freed and relieved of all covenants and obligations of Landlord hereunder and it
shall be deemed and construed without further agreement between the parities or
their successors in interest, or between the parties and the purchaser, at any
such sale, or the said Tenant of the building, provided that the purchaser or
tenant of the building as of the date of such purchase or lease has assumed and
agreed to carry out any and all covenants and obligations of Landlord hereunder.
-50-
ARTICLE 42
CORPORATE TENANT
SECTION 42.01 If Tenant is a corporation, the persons executing this Lease
on behalf of Tenant hereby covenant, represent and warrant that Tenant is a duly
incorporated or duly qualified (if foreign) corporation and is authorized to do
business in the State of New York (a copy of evidence thereof to be supplied to
Landlord upon request); and that the person or persons executing this Lease on
behalf of Tenant is an officer or are officers of such Tenant, and that he or
they as such officers are duly authorized to execute, acknowledge and deliver
this Lease to Landlord (a copy of a resolution to that effect to be supplied to
Landlord upon request).
ARTICLE 43
LANDLORD'S CONSENT
SECTION 43.01 If at any time during the term of this Lease or any renewal
thereof, Landlord is requested to give its consent and Landlord delays in
granting its consent or determines to withhold such consent, the sole remedy of
Tenant shall be equitable action to compel Landlord to give its consent.
Landlord shall not be liable for any loss, liability, damage or expense,
including attorney's fees that Tenant may suffer or incur as a result of
Landlord's delay in granting such consent or in the event a court subsequently
determines that such consent was unreasonably withheld, or as a result of or in
connection with Tenant's action to compel Landlord to give its consent as
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herein provided.* [*In the event the Landlord withholds its said consent and
there is disagreement between Landlord and tenant as to whether or not
Landlord's said refusal is reasonable, then the matter of Landlord's
reasonableness in so refusing shall be submitted to binding arbitration in
accordance with the Rules of the American Arbitration Association.]
-52-
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals as of the date first above written.
PERINTON HILLS
By: /S/ Charles N. Mills
-----------------------------
Charles N. Mills, General
Partner
EMCO MOTOR HOLDINGS, INC.
Date: 4-13-94 By: /S/ E.P. Mager
-----------------------------
(Name and Title)
-53-
STATE OF NEW YORK )
) SS:
COUNTY OF MONROE )
On the 13th day of April, 1994, before me personally came CHARLES N. MILLS,
to me known, who being by me duly sworn, did depose and say that he resides at
Rochester, New York; that he is the General Partner of PERINTON HILLS, the
Limited Partnership described in and which executed the foregoing instrument.
/s/ Debra Ann Motabito
-----------------------------
STATE OF NEW JERSEY )
) SS:
COUNTY OF HUDSON )
On the 11th day of April, 1994, before me personally came EZRA P. MAGER to
me known, who, being by me duly sworn, did depose and say that he resides at 585
Route 440, Jersey City, NJ 07304 that he is the President of EMCO MOTOR
HOLDINGS, INC. the corporation described in, and which executed the foregoing
instrument; that he knows the seal of said corporation; that the0 seal affixed
to said instrument is such corporate seal; that it was so affixed by order of
the board of directors of said corporation; and that he signed his name thereto
by like order.
/S/ Ellen K. Shyne
-----------------------------
-54-
STATE OF )
) SS:
COUNTY OF )
On the ______ day of ________, 19___, before me personally came
_______________________________________________________ to me known and known to
me to be the individual described in and who executed the foregoing instrument
and duly acknowledged to me that he executed the same.
______________________
-55-
EXHIBIT B
TO LEASE AGREEMENT BETWEEN
PERINTON HILLS
AND
EMCO MOTOR HOLDINGS, INC.
The Demised Premises shall be completed by Landlord or Tenant, as the case
may be, as hereinafter designated:
A. Work to be completed by the Landlord at Landlord's sole cost and
expense ("Landlord's Work"):
1. Interior finish of walls shall be gypsum wallboard taped and
finished with two (2) coats flat wall paint with one color
through-out;
2. All floors shall be carpeted with standard 26 oz. carpet.
Color to be chosen by Tenant from Landlord available colors. Matching
4" vinyl base;
3. Ceiling shall be 2'x2' tegular tile, glacial finish lay-in
panels in exposed metal tee grid;
4. Interior partitioning* shall be as shown on Exhibit A which
will be attached hereto and made a part hereof;** [*Landlord, at its
sole cost and expense, will provide 1/2 inch soundboard (and "friction
fit" cavity insulation) on three offices and a conference room. The
offices are to be selected in writing within three (3) days of the
execution hereof by Tenant. Further, Landlord shall supply, at its
expense, a refrigerator (with a freezer compartment), sink with
hot and cold running water and a microwave oven.] [**which Tenant
agrees to supply utilizing Landlord's architect at Landlord's
expense.]
Partitions shall be 2"x3-5/8" studs 24 o.c. with 1/2" gypsum
wallboard, both sides, taped and finished. Partitions shall be
complete with flush wood, solid core oak veneer doors, frames,
trim and Schlage (or equal) hardware;
5. Heating and air conditioning - Subject to Article 7 in the
main body of this Lease Agreement, Landlord shall provide air
conditioning and heating of the Tenant space;
6. Electrical:
-Lighting - Subject to any applicable law, statute, ordinance or
regulation, Landlord shall provide recessed flourescent light
providing an average of 60 foot candles. Light fixtures shall be
2'x4' 3-tube, "deep cell" parabolic fixtures;
-Outlets - Up to 69 wall-mounted 110 volt 20 amp duplex
convenience outlets (non-dedicated). There shall be 12 outlets
per circuit.
7. Landlord shall supply a sink with hot and cold running water
and a base cabinet.
B. "Tenant's Work" shall supplement that work to be performed by
Landlord (herein referred to as "Landlord's Work") as set forth in
Subparagraph A above of this Exhibit B. Any alterations, additions or
improvements which are in
2
addition to said Landlord's work which Tenant desires to make in the
Demised Premises either before or after the commencement date of this
Lease, shall be performed by Tenant at its sole cost and expense, shall
require written approval from Landlord and shall be herein defined as
"Tenant's Work". Tenant, at its sole cost and expense, shall perform all
labor, services and management and furnish all labor, material, plans and
equipment necessary to complete, in a good, substantial and approved
manner, the work herein described and shall bring the Demised Premises to a
finished condition for the conduct of Tenant's business therein. All of
Tenant's work, even if such work is performed prior to the commencement of
the term of this Lease, shall be performed subject to and in accordance
with all of the terms and provisions of the Lease including but not limited
to the terms and provisions of Article 5, Article 11, Article 12, Section
14.09 and Section 22.01 and, additionally, shall include the following
work, labor, services and material and, as the case may be, shall be
subject to the following general conditions:
1. All additional interior partitions, door bucks, doors and finish
hardware;
2. All architectural millwork including cabinets, counters,
vanities, shelving, paneling and decorative millwork required;
3. Any ventilating work required (other than noted in "A.5" above);
3
4. All electrical work required (other than noted in "A.6" above)
and all telephones and installation of equipment;
5. Interior furniture, furnishings, office equipment, etc.;
6. Interior Signs - All interior signs shall be installed at the
sole cost of Tenant with only one interior sign being permitted on the
entrance doorway, which sign shall be furnished and installed by Landlord
in accordance with the specifications furnished by Landlord at the expense
of Tenant not to exceed $350.00;
7. All other work not listed under subparagraph A above;
8. All foregoing work shall be in accordance with local building
codes and regulations;
9. Tenant shall, at its own expense, comply with all applicable
statutes, ordinances, rules, orders, laws, regulations and recommendations
of any governmental or quasi-governmental bureau, agency, board or
department and their authorized agents which have jurisdiction over
Tenant's Work, and, with respect to the prevention of fire and the exposure
to liability risks, of the Board of Fire Underwriters, Rating Board and
Landlord's and Tenant's insurance companies. Tenant shall apply for, pay
all fees for, and obtain all necessary permits, licenses and certificates
required by Tenant's Work. A copy of same shall be delivered to Landlord
and shall be posted in a
4
prominent place within the Demised Premises before Tenant commences its
work;
10. Tenant shall perform its work so as to cause no interference with
the completion of Landlord's Work or other tenants' work;
11. All materials furnished or incorporated in Tenant's Work shall be
new, unused, and of the quality and characteristics customarily used in
first class work of similar nature and character;
12. In fulfillment of its obligations pursuant to Article 11, and in
addition, to the insurance coverage required by Article 11 of this Lease
and the provisions of this Exhibit B, Tenant shall carry and cause its
contractors, subcontractors, etc. to carry in the course of and in
connection with "Tenant's Work", at its/their own expense, and shall name
Landlord and such other entities and persons designated by Landlord as
additional insured, the following insurance coverages in the following
amounts:
a. Comprehensive General Liability including completed
operations, explosions, collapse and underground operations, if any;
broad form property damage including completed operations, protective
liability, contractual liability and indemnity:
$1,000,000 (single limit) - Bodily Injury
and Property
Damage
5
b. Personal Injury (with employment exclusion deleted and
contractual exclusion deleted):
$1,000,000 - Occ________
[Illegible] and
A________ [Illegible]
c. Auto Liability (including non-owned and hired vehicles):
$500,000 (single limit) - Bodily Injury
$250,000 - Property Damage
d. Statutory Worker's Compensation, Employer's Liability and
Disability Benefits:
Unlimited
Excess Liability, Umbrella Form:
$5,000,000
and any other special insurance as required by Landlord so as to fully
protected Landlord against loss or damage throughout the period during
which the Tenant's work is being performed.
e. All of such insurance shall be written by a casualty
insurance company authorized under the laws of New York State, and
satisfactory to the Landlord. Tenant and said contractors shall
furnish Landlord, prior to commencement of Tenant's Work, certificates
and certified copies of such policies showing that the said insurance
will not be cancelled or changed until after at least thirty (30)
days' written notice to Landlord. In the event of the failure of
Tenant and/or
6
said contractors, to furnish and maintain such insurance, Landlord
shall have the right to procure and maintain the said insurance for
and in the name of the Tenant and/or said contractors, and Tenant
agrees to pay the cost thereof and to furnish all necessary
information to permit Landlord to procure and maintain such insurance
for the account of the Tenant and/or said contractors. The cost of
such policies shall be paid by Tenant to Landlord as additional rent
upon demand. Compliance by Tenant with the foregoing requirements to
carry insurance and furnish certificates shall not relieve Tenant from
liability under any provisions of this Lease.
13. Tenant shall submit complete drawings and specifications for all
work to be performed by Tenant for Landlord's approval, prior to the start
of such work.
7
RIDER 1
TO LEASE AGREEMENT BETWEEN
PERINTON HILLS
and
EMCO MOTOR HOLDINGS, INC.
1. Provided Tenant shall have given Landlord not less than six (6)
months' prior written notice thereof, and further provided Tenant is not in
default* in any of the terms and provisions herein, Tenant shall have an option
to terminate this lease effective April 30, 1997. [* material]
2. The annual rental referred to in Section 2.01 above shall include an
allowance for electric and gas consumption (heat, light, air conditioning and
power for the Demised Premises and Tenant's pro rata share of the common areas
of the Building and the parking lot serving the Building) in the amount of
$4,103.04 per year ($.60 x 6839 r.s.f. = $4,103.04). Tenant's said pro rata
share shall be determined by multiplying the cost thereof by a fraction - the
numerator of which shall be its rentable square foot area (6839 r.s.f. at the
commencement of the demised term) and the denominator of which shall be the
total rentable square footage of the Building (15,583.77 r.s.f.). Tenant, at
its cost and expense, shall install a separate electric and, if applicable, gas
meter, to meter the electrical (and gas, etc.) consumption of the Demised
Premises.
3. Unless caused by the negligence of Tenant, Tenant's employees,
contractors, representatives or agents, in the event Landlord fails to deliver
the services referred to in Article 7
above and in the event said failure to deliver said services to the Demised
Premises is of such an extent that it is unreasonable for Tenant to conduct its
business and if such condition continues for a period of twenty-one (21)
consecutive days from the date of said interruption, then, in that event, Tenant
shall have the option of terminating this Lease Agreement by giving ten (10)
days written notice thereof to Landlord. In the event said interruption of
service is cured prior to the end of said ten (10) day period, Tenant's said
notice shall be deemed null and void and of no force or effect. In the event
the said interruption of service is not so cured prior to the end of the said
ten (10) day period, the demised term will expire at the end of the said ten
(10) day period as if the said date were the original expiration date herein
referred to.
4. Except in cases of emergency, notwithstanding the terms and provisions
of Section 10.01 above, Landlord shall not enter the Demised Premises without
having first given Tenant reasonable advance oral notice thereof. An emergency
shall be defined to be when Landlord or Landlord's employees reasonably believe
that damage to person or property may result unless such entry is made.
5. A. Subject to events beyond Landlord's control or for delays caused
by the action or inaction of Tenant, Tenant's employees, agents, contractors or
representatives, in which event the date referred to below of May 16, 1994 shall
be extended one day for each day said condition continues, in the event the
Demised Premises are not "ready for occupancy" by June 1, 1994
Tenant may terminate this Lease by giving Landlord ten (10) day's written notice
thereof. If, however, the Demised Premises are "ready for occupancy" prior to
the end of the said ten (10) day period, the said notice shall be null and void
and of no force or effect. Notwithstanding the foregoing, unless delayed by the
action or inaction of Tenants, employees, representatives, contractors, etc., in
the event the Demised Premises are not "ready for occupancy" by July 1, 1994,
Tenant may terminate this Lease by giving Landlord written notice thereof on or
before July 5, 1994. Upon said notice, neither party shall have any further
obligation to the other.
B. The term "ready for occupancy" shall be defined to mean that the
Demised Premises have received valid certificates of occupancy; that the Demised
Premises have been professionally cleaned and are free of trash or debris; and
that the Demised Premises have been finished in accordance with the provisions
of the Lease, subject only to minor "punch list" items which do not separately
or in the aggregate materially affect Tenant's use and occupancy of the Demised
Premises. Notwithstanding the foregoing, the term "ready for occupancy" shall
refer only to Landlord's work and if no certificate of occupancy has been issued
as the result of the action or inaction of Tenant, its representatives, agents,
employees or contractors than the requirement of the issuance of a certificate
of occupancy as herein referred to shall be deemed waived.
6. In reference to the terms and provisions of Article 13 of the Lease,
Landlord agrees to use its best efforts to secure
on agreement from the mortgagee (and any future lenders) of the Building of
which the Demised Premises form a part which provides that in the event of a
foreclosure by the lender of any said mortgage, Tenant's possession of the
Demised Premises will not be disturbed provided Tenant is then and continuously
thereafter is in full compliance with all of the terms, covenants and conditions
herein contained. Tenant shall be responsible for the payment of any fee
charged by said lender for the said agreement.
PERINTON HILLS
By /s/ Charles N. Mills
-----------------------------
Charles N. Mills,
General Partner
EMCO MOTOR HOLDINGS, INC.
By /s/
-----------------------------
RULES AND REGULATIONS
1. WINDOW COVERINGS
No window coverings will be installed except "free hanging" (i.e. no
"ties", "tie backs", etc.) draperies in white or LIGHT beige and fully
lined in white. In addition Tenant may have horizontal, narrow slat
"Levolor" blinds in the color "alabaster" and installed inside the window
frame.
2. CARPET PROTECTORS
Carpet protectors must be used beneath all "swivel" type chairs.
3. GARBAGE AND TRASH REMOVAL
All garbage and trash must be removed on a daily basis. It may be placed
in the dumpsters provided by Landlord for that purpose. Landlord will not
be responsible for or accepting unusual amounts of rubbish not associated
with normal daily trash/rubbish requirements of a typical corporate office.
All boxes, etc. shall be "broken down" by Tenant before removal.
4. LIGHTS, ETC.
All lights, typewriters, coffee makers, etc., must be turned off when the
Demised Premises are not in use.
5. "AFTER HOURS" USE
When using the Demised Premises after normal working hours or on weekends,
Tenant, if the last one leaving the building, shall not leave the building
without first locking the entrance doors and, during said times, IF
PRACTICAL will keep the said doors locked while inside the Demised
Premises.
6. COMMON AREAS
The sidewalks, entrances, passages, vestibules, stairways, corridors and
public parts of the Building of which the Demised Premises form a part
shall not be obstructed or encumbered by Tenant or used by Tenant for any
purpose other than ingress and egress to and from the Demised Premises.
7. MOVE-IN
All moving of furniture and/or equipment, files, etc. from or to the
Demised Premises shall be coordinated with Landlord. All carpets shall be
protected with a hard surface (e.g. plywood, masonite, etc.) throughout the
entire area of the move including all lobby carpets and all carpets within
the Demised Premises. Tenant shall use only movers who are insured in
accordance with Landlord established regulations (not less than $1,000,000
single limit for liability and property damage) and, Landlord and such
other
2
entities as Landlord designates shall be named as additional insured and
appropriate certificates evidencing said insurance shall be furnished to
Landlord prior to any said moving. Tenant/mover shall protect ALL door
openings, etc. with appropriate coverings to prevent damage and Landlord
shall be given adequate notice to allow Landlord to install "pads" in the
elevator, if applicable. All said moves shall be Monday through Friday
between the hours of 9:00 a.m. and 4:30 p.m. but not on recognized national
holidays.
8. SIGNS
No sign or lettering shall be affixed by Tenant on any part of the outside
of the Demised Premises (including but not limited to the entrance door and
glass sidelight) or any part of the inside of the Demised Premises so as to
be clearly visible from the outside of the Demised Premises. However,
Tenant shall be permitted to have the identification signs on the entrance
door, lobby directory and outside directory in a style and color permitted
by Landlord at Landlord's sole discretion.
9. WINDOWS
Except for the "window coverings" referred to in Paragraph 1 above, the
windows in the Demised Premises shall not be covered or obstructed by
Tenant nor shall any bottles, parcels or other articles be placed on the
windowsills.
3
10. NOISE
Tenant shall not make or permit to be made, any unseemly or disturbing
noises or interfere with other tenants or those having business with them.
11. LOCKS AND KEYS
No additional locks or bolts of any kind shall be placed upon any of the
doors by Tenant and Tenant shall, upon the termination of this tenancy,
deliver to Landlord all keys to any space within the Building either
furnished to or otherwise procured by Tenant. If more than two (2) keys
for one lock are desired, Landlord will provide the same upon payment by
Tenant.
12. HEAVY EQUIPMENT
Landlord reserves the right to prescribe the weight and position of all
safes and other heavy equipment so as to distribute properly the weight
thereof to prevent any unusual condition from arising. Business machines
and other equipment shall be placed and maintained by Tenant at Tenant's
expense in settings sufficient in Landlord's reasonable judgment to absorb
and prevent unreasonable vibration, noise and annoyance.
4
13. HEATERS/EXTENSION CORDS
Tenant shall not use ANY electrical extension cords or space heaters.
14. PARKING
All parking areas in or about the Building provided by Landlord shall be
subject to the exclusive control and management of Landlord. Tenants,
their employees, agents and visitors shall park only in areas designated by
Landlord from time to time. No overnight parking is allowed in any of the
parking lots without the prior written consent of Landlord which Landlord
may withhold in its sole discretion. In the event Landlord permits
overnight parking, Tenant shall be responsible for moving said vehicle
every 24 hours if requested by Landlord and Landlord shall not be
responsible for the accumulation of snow around said vehicle as the result
of snowplowing occurring after normal business hours.
15. NON-SMOKING BUILDING
In accordance with the applicable Monroe County ordinances and Landlord
established regulations, there shall be no smoking in the Demised Premises
or the Building.
5
Exhibit C
INTERIOR CLEANING SPECIFICATIONS
DAILY
Dusting: All horizontal surfaces, including desks and other
personal areas when cleared of papers, personal effects,
etc.
Vacuuming: Common areas and offices.
Refuse: Empty all containers, urns and ashtrays.
Glass: Clean all doors inside and out. Remove smudges and
fingerprints from interior glass.
Cobwebs: Remove.
WEEKLY
Vacuuming: Thoroughly do all offices.
Smudges: Remove, if reasonably possible, from doors,
switchplates, etc.
Refuse: Change liners as needed. Remove properly separated
recyclables from a central location, as needed.
The cleaning specification shall not include the removal or disposal
of "medical" wastes, hazardous or toxic wastes or any other wastes which require
any kind of special or
unique handling disposal or treatment - all of which will be the responsibility
of Tenant.
GUARANTY OF LEASE
GUARANTY OF LEASE dated this 13th day of April, 1994, given by
ATLANTIC AUTO FINANCE CORPORATION, a Delaware Corporation, with an office for
the transaction of business at 44 Souther Parkway, Rochester, New York, 14610
(hereinafter called "Guarantor") given to PERINTON HILLS having an address 250
WillowBrook Office Park, Fairport, New York 14450 (hereinafter referred to as
"Landlord").
W I T N E S S E T H:
WHEREAS, simultaneously with the delivery of this Guaranty, Landlord
is leasing to EMCO MOTOR HOLDINGS, INC. A Delaware corporation (hereinafter
referred to as "Tenant"), by a Lease Agreement dated as of March 18, 1994
(hereinafter referred to as the "Lease") premises situate in Building 800,
Perinton Hills Office Park, Fairport, New York, more particularly described in
the Lease; and
WHEREAS, Landlord is unwilling to enter into the Lease unless
Guarantor(s) execute(s) and deliver(s) to Landlord this Guaranty; and
WHEREAS, the execution and delivery hereof and the assumption of
liability hereunder have been in all respects authorized and approved by proper
corporate action on the part of Guarantor (if Guarantor is a corporation), and
Guarantor has full authority and power to execute this Guaranty.
NOW, THEREFORE, in order to induce Landlord to enter into the Lease,
as aforesaid, and, further, in consideration of One Dollar ($1.00) and other
good and valuable consideration paid by Landlord to Guarantor(s), receipt of
which is hereby acknowledged, Guarantor(s) hereby convenant(s), guarantee(s) and
agree(s) as follows:
1. Guarantor(s) jointly and severally, hereby unconditionally and
irrevocably guarantee(s) to Landlord the
prompt and timely performance and observance by Tenant of all of the terms,
covenants, conditions and agreements to be performed or observed by Tenant under
the Lease throughout the term of the Lease, including any extension and/or
renewal thereof, including, but not limited to the payment of rent and
additional rent by Tenant at the times and in the manner provided in the Lease.
2. Guarantor(s) hereby agree(s) and covenant(s) to Landlord, jointly
and severally, that, if at any time during the term of the Lease or any
extension and/or renewal thereof, Tenant shall default in the due and prompt
performance of any of the covenants, terms, conditions and agreements contained
in the Lease on the part of Tenant to be performed, Guarantor(s) shall perform
such obligation and shall pay the sums to be paid thereunder in the manner and
at the times therein specified and shall pay all damages that may arise as a
consequence of such breach or nonperformance of any such covenant, term,
condition and agreement of the Lease.
3. Any modification of the Lease, or waiver of the performance
thereunder, or the giving by Landlord of any extensions of time for the
performance of any of the obligations of Tenant, or any acceptance of rent after
any default of Tenant or any forbearance of the part of Landlord, or any failure
by Landlord to enforce any of its rights under the Lease, or any assignment of
the Lease, shall not in any way release Guarantor(s) from liability hereunder,
or terminate, affect or diminish the validity of this Guaranty. Notice to
Guarantor(s) of acceptance of this Guaranty, or any such modification,
assignment, waiver, extension, forbearance or failure or of any default by
Tenant is hereby expressly waived.
4. In the event of any bankruptcy, reorganization, winding up or
similar proceedings with respect to Tenant no limitation of Tenant's liability
under the Lease which may now or hereafter by imposed by any federal, state or
other statute, law or regulation applicable to such proceedings, shall in any
way limit the obligation of Guarantor(s) hereunder, which obligation
is coextensive with Tenant's liability as set forth in the Lease without regard
to any such statutory or legal limitation. Guarantor(s) further agree(s) that
the validity of this Guaranty and the obligations of Guarantor(s) hereunder
shall in no way be terminated, affected or impaired by reason of the
adjudication in bankruptcy of any person or entity obligated under the Lease,
the filing of a petition for any relief under the Bankruptcy Act, or the death
or incapacity of any of the persons constituting Guarantor(s).
5. Guarantor(s) hereby agree(s) and covenant(s) to Landlord, that if
there by any default in the performance of any of the obligations of Tenant
under the Lease, upon the happening of such default or at any time thereafter,
Landlord may have and maintain an action upon this Guaranty against Guarantor(s)
and in like manner may have and maintain successive actions upon this Guaranty
for each and every other default. Guarantor(s) expressly agree(s) that its
their obligations hereunder shall not be exhausted by any such action or by any
number of such successive actions until and unless each of Tenant's agreements
contained in the Lease shall have been fully performed.
6. Guarantor(s) hereby waive(s) notice of the acceptance hereof
presentment, demand for payment, protest, notice of protest and any and all
notices of non-payment, non-performance, or non-observance, or other proof or
notice of demand.
7. Words of any gender used in the Guaranty shall be held to include
any other gender and words in the singular number shall be held to include the
plural where the tense requires.
8. Guarantor(s) agree, jointly and severally, to pay on demand
Landlord's reasonable expenses, including reasonable attorneys' fees
("reasonableness shall be based upon the amount of time and effort expanded by
the attorneys without regard to the amount in controversy"), incurred in
enforcing any obligation of Guarantor(s) pursuant to this agreement of Guaranty.
9. This Guaranty shall bind Guarantor(s), its their heirs, legal
representatives, executors, administrators, successors and assigns, as the case
may be, and shall inure to the benefit of Landlord and its successors and
assign.
ATLANTIC AUTO FINANCE CORPORATION
By: /s/ Richard J. Harrison
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Richard J. Harrison
President
STATE OF NEW YORK )
SS:
COUNTY OF MONROE )
On the 13th day of April, 1994, before me personally came RICHARD
HARRISON, to me known, who, being by me duly sworn, did depose and say that he
resides at 44 Southern Parkway, Rochester, New York, that he is the President of
ATLANTIC AUTO FINANCE CORPORATION, the corporation described in and which
executed the foregoing instrument; that he signed the foregoing by order of the
Board of Directors of said corporation.
/s/ Debra Ann Motabito
----------------------------