PARI MANAGEMENT CORPORATION,
Landlord
ENZO CLINICAL LABS, INC.,
Tenant
AMENDED AND RESTATED
LEASE
DATED: as of March 14, 2005
PREMISES: 60 Executive Boulevard, Farmingdale, New York
1
TABLE OF CONTENTS
PAGE
1 THE LEASED PREMISES......................................................1
2 TERM.....................................................................2
3 FIXED ANNUAL MINIMUM RENTAL..............................................2
4 UTILITIES................................................................2
5 ADDITIONAL RENT..........................................................2
6 USE......................................................................4
7 COMPLIANCE WITH LAWS AND AGREEMENTS......................................4
8 MAINTENANCE AND REPAIR...................................................5
9 CHANGES, ALTERATIONS AND NEW CONSTRUCTION BY THE TENANT..................6
10 INDEMNITY AND PUBLIC LIABILITY INSURANCE.................................8
11 INSURANCE FOR DAMAGE OR DESTRUCTION AND WORKER'S COMPENSATION............9
12 CONDEMNATION............................................................12
13 REMOVAL OF TENANT'S PROPERTY............................................13
14 SUBORDINATION, NON-DISTURBANCE, NOTICE TO LESSORS AND MORTGAGEES........14
15 NON-WAIVER..............................................................15
16 QUIET ENJOYMENT.........................................................15
17 ASSIGNMENT AND SUBLETTING...............................................15
18 ENTRY BY LANDLORD.......................................................18
19 TENANT'S DEFAULT........................................................18
20 TAX APPEALS AND CONTEST.................................................20
21 SIGNS...................................................................21
22 SURRENDER OF PREMISES...................................................22
23 ENVIRONMENTAL REQUIREMENTS..............................................22
24 "LANDLORD" DEFINED......................................................24
PAGE
25 TENANT'S PAYMENTS.......................................................24
26 RIGHT TO CURE DEFAULTS..................................................25
27 COVENANT AGAINST LIENS..................................................25
28 WAIVER OF REDEMPTION....................................................25
29 LANDLORD'S AND TENANT'S CERTIFICATES....................................26
30 WAIVER OF TRIAL BY JURY.................................................26
31 NET LEASE: NON-TERMINABILITY............................................26
32 MISCELLANEOUS PROVISION.................................................27
33 SECURITY DEPOSIT........................................................30
34 LANDLORD'S RIGHT TO BUILD ADDITIONAL IMPROVEMENTS.......................30
35 NO BROKER...............................................................31
36 DEFINITIONS.............................................................32
37 TENANT REPRESENTATIONS..................................................33
38 AMENDED AND RESTATED LEASE..............................................33
AMENDED AND RESTATED LEASE
THIS AMENDED AND RESTATED LEASE (hereinafter the "Lease") entered into
as of the 1st day of April, 2005, by and between PARI MANAGEMENT CORPORATION, a
New York corporation with an address at 17 Catalina Drive, Kings Point, New York
11024 (hereinafter called the "Landlord") and ENZO CLINICAL LABS, INC., a New
York corporation, having an office located at 60 Executive Boulevard,
Farmingdale, New York (hereinafter called the "Tenant").
Upon the terms and subject to the conditions hereinafter set forth, the
Landlord leases to the Tenant and the Tenant leases from the Landlord, the
property hereinafter described:
1. THE LEASED PREMISES.
(a) Subject to the provisions of Section 34, the property
hereby leased to the Tenant is the tract or tracts of land (the "Land") situated
in the Town of Babylon, County of Suffolk and State of New York more
particularly described in Exhibit "A" annexed hereto and by this reference made
a part hereof, together with the buildings and other improvements now or
hereafter located thereon (collectively the "Improvements").
(b) The Land and Improvements leased hereunder, together with
all appurtenances thereto, hereinafter sometimes collectively referred to as the
"Leased Premises", are demised and let subject to (a) the rights of any parties
in possession thereof and the existing state of the title thereof as of the
commencement of the term of this Lease, (b) any state of facts which an accurate
survey or physical inspection thereof might show, (c) all zoning regulations now
in effect or hereafter adopted by any governmental authority having
jurisdiction, and (d) with respect to the Improvements, their condition as of
the commencement of the term of this Lease, without representation or warranty
by Landlord with respect thereto. Tenant represents to Landlord that Tenant has
examined and inspected the physical condition of the Leased Premises prior to
the execution and delivery of this Lease, is familiar with the physical
condition thereof and has found the same to be satisfactory for all purposes
hereof, and Tenant accepts the title and condition of the Leased Premises in
their respective, present condition "as is."
(c) Landlord makes no representation or warranty with respect
to the conditions of the Leased Premises or its fitness or availability for any
particular use, and Landlord shall not be liable for any latent or patent defect
therein. The Landlord has not made and does not make any representation as to
the physical condition, expenses, operation or any other matter or thing
effecting or related to the Leased Premises, except as herein specifically set
forth, and the Tenant hereby expressly acknowledges that no representations have
been made. It is understood and agreed that all understandings and agreements
heretofore had between the parties hereto are merged into this Lease, which
alone fully and completely expresses their agreement, and that the same is
entered into after full investigation.
(d) The Landlord shall not be liable or bound by any verbal or
written statements, representations, real estate brokers' "set-ups" or
information pertaining to the Premises furnished by any real estate broker,
agent, employee, servant or any other person unless the same are specifically
set forth herein. The Tenant further acknowledges that, except as
specifically set forth herein, neither the Landlord nor any agent or
representative of the Landlord, have made, and Landlord is not liable for or
bound. in any matter by, any express or implied warranties, guarantees,
promises, statements, inducements, representations or information pertaining to
the Leased Premises, including but not limited to fixtures, equipment and
personal property located therein, the physical condition, income, expenses or
operation thereof, the validity of the certificate of occupancy or any other
matter or thing with respect thereto.
2. TERM.
The term of this Lease is twelve (12) years, commencing on April 1,
2005 and terminating March 31, 2017, (the "Lease Termination Date") or on such
earlier date upon which said term may expire or be terminated pursuant to any of
the conditions of limitation or other provisions of this Lease or pursuant to
the provisions of any present or future law, statute, ordinance, rule,
regulation, other governmental order or controlling judicial determination of
any federal, state, local, municipal or other governmental body, agency or
authority having or asserting jurisdiction and all departments, commissions,
boards and officers thereof (collectively the "Laws").
3. FIXED ANNUAL MINIMUM RENTAL.
Tenant covenants to pay Landlord, without previous demand therefore and
without any setoff or deduction whatsoever a net fixed annual minimum rent (the
"Minimum Rental") payable in equal monthly installments, in advance on or before
the first (1st) day of each and every calendar month during the term of this
Lease in the amounts and with such adjustments set forth on Schedule "1" annexed
hereto and by this reference made a part hereof. Landlord may, at its option,
direct Tenant to pay all or any portion of the Minimum Rental directly to any
agent or representative of Landlord or to the holder of any mortgage on the
Leased Premises and to pay the balance of the Minimum Rental, if any, to
Landlord.
4. UTILITIES.
Tenant shall obtain, at its own expense, all utilities of every type
and nature required by it in its use of the Leased Premises and shall pay or
cause to be paid, when due, all bills for water, sewerage, heat, gas,
electricity and other utilities, if any, used on, in connection with, or
chargeable against the Leased Premises until the termination of this Lease and
all bills for utility charges relating to the Leased Premises or the use thereof
and imposed on users of utilities, whether or not such charges shall relate to
services or benefits available to the Tenant during the term of this Lease, and
the Tenant shall indemnify and save harmless the Landlord from and against any
loss, cost and expense in connection therewith.
5. ADDITIONAL RENT.
(a) Except as provided in Section 34, it is the purpose and
intent of the Landlord and Tenant that the rent payable hereunder shall be
absolutely net to the Landlord so that this Lease shall yield, net to the
Landlord, the rents specified herein in each year during the term of this Lease.
(b) Tenant covenants to pay, before any fine, penalty,
interest or cost may be added thereto for the nonpayment thereof, as additional
rent, all taxes, assessments (including but not limited to, all assessments for
public improvements or benefits, whether or not commenced or completed within
the term of this Lease), water, sewer and other rents, rates and charges for
public utilities, excises, levies, license and permit and inspection fees and
other governmental charges, general and special, ordinary and extraordinary,
foreseen and unforeseen, of any kind and nature whatsoever, which at any time
prior to or during the term of this Lease may have been or may be assessed,
levied, confirmed, imposed upon, or grow or become due or payable out of or in
respect of, or become a lien on, the Leased Premises or any part thereof or any
appurtenance thereto, any personal property, the rent and income received by
Tenant from subtenants, if any, any use, possession or occupation of the Leased
Premises, or rentals or sales therefrom or activity conducted therein, such
franchises as may be appurtenant to the use or occupation of the Leased
Premises, this transaction or any document to. which Tenant is a party creating
or transferring any right, title or interest or estate in the Leased Premises
(all of the foregoing, together with any and all penalties and/or interest
thereon, being hereinafter sometimes collectively referred to as "Impositions",
and any of the same being hereinafter sometimes referred to as an "Imposition").
Nothing herein contained shall require Tenant to pay income taxes assessed
against Landlord, or any capital levy, corporation franchise, excess profits,
estate, succession, inheritance or transfer taxes of Landlord, unless such taxes
are imposed or levied upon or assessed as a total or partial substitute for, or
in lieu of, any other Imposition required to be paid by Tenant pursuant to this
Section 5(b), in which event same shall be deemed Impositions and shall be paid
by Tenant; provided, however, that if at any time during the term of this Lease,
the method of taxation shall be such that there shall be levied, assessed or
imposed on Landlord a capital levy, gross receipts or other tax directly on the
rents received therefrom and/or a franchise tax or an assessment, levy or charge
measured by or based, in whole or in part, upon such rents, the Leased Premises
(including but not limited to the acquisition, leasing, use, or value thereof)
or the present or any future Improvements on the Leased Premises or the
construction thereof and/or measured in whole or in part by Landlord's income
from the Leased Premises if in computing such income there is not allowed as a
deduction any significant portion of the depreciation or interest deductions
allowed for federal income tax purposes, then all such taxes, assessments,
levies and charges, or the part thereof so measured or based, shall be deemed to
be included within the term "Imposition" for the purposes hereof, but only to
the extent that such taxes would be payable if the Leased Premises were the only
property of the Landlord, and Tenant shall pay and discharge the same as. herein
provided in respect of the payment of Impositions. Tenant shall furnish to
Landlord, promptly after payment of any Impositions, official receipts or other
satisfactory proof evidencing payment of such Imposition. In addition, Tenant
shall furnish to Landlord, semi-annually on January 1, and July 1 of each year
and within ten (10) days after a request from Landlord, throughout the term of
this Lease, a certificate executed by an executive officer of Tenant, stating
that all Impositions have been paid to date. Upon Tenant's failure to pay such
Impositions or failure to provide proof of such payment or failure to deliver
any such certificate, as above provided, or if Landlord gives notice to Tenant
Landlord shall have the right, at Landlord's option, to require Tenant to: (i)
promptly deposit with Landlord funds for the payment of current Impositions
required to be paid by Tenant hereunder; and (ii) also deposit one-twelfth
(1/12th) of the current annual Impositions or the Landlord's estimate of the
current annual Impositions if the current amounts thereof have not been fixed,
on the first day of each month in advance, except that all additional funds
required
for any payments thereof shall also be deposited as aforesaid on the first day
of the final month during which or at the end of which a payment is due and
payable without interest or penalty.
6. USE.
(a) Tenant shall be permitted to use the Leased Premises for
any and all lawful purposes, subject, however, to zoning ordinances, Laws, the
orders, rules and regulations of the Board of Fire Insurance Underwriters and
any similar bodies having or asserting jurisdiction thereof now in effect or
hereafter adopted by any governmental authority having or asserting
jurisdiction, and such conditions, restrictions and other encumbrances, if any,
to which the Leased Premises are subject at the time of execution and delivery
hereof.
(b) Tenant shall not use or occupy or permit the Leased
Premises to be used or occupied, nor do or permit anything to be done in or on
the Leased Premises or any part thereof, in a manner that would in any way
violate any certificate of occupancy affecting the Leased Premises or make void
or voidable any insurance then in force with respect thereto or increase the
cost any such insurance, or that may make it impossible to obtain fire or other
insurance thereon required to be furnished hereunder by Tenant, or that will
cause or be likely to cause structural injury to any of the Improvements, or
that will constitute a public or private nuisance or waste. Nothing contained in
this Lease and no action or inaction by Landlord shall be deemed or construed to
mean that Landlord has granted to Tenant any right, power or permission to do
any act or to make any agreement that may create, give rise to, or be the
foundation for, any right, title, interest, lien, charge or other encumbrance
upon the estate of Landlord in the Leased Premises.
7. COMPLIANCE WITH LAWS AND AGREEMENTS.
(a) Tenant shall, throughout the term of this Lease, and at
Tenant's sole cost and expense, promptly comply, or cause compliance with all
Laws, whether present or future, foreseen or unforeseen, ordinary or
extraordinary, and whether or not the same shall be presently within the
contemplation of Landlord and Tenant or shall involve any change of governmental
policy, or, subject to the provisions of Section 8(b) hereof, require structural
or extraordinary repairs, alterations, or additions, and irrespective of the
cost thereof, which may be applicable to the Leased Premises.
(b) Except as expressly provided in Section l2 of this Lease,
no abatement, diminution or reduction in Minimum Rental, additional rent or any
other charges required to be paid by Tenant pursuant hereto shall be claimed by
or allowed to Tenant for any inconvenience or interruption, cessation, or loss
of business caused directly or indirectly, by any present or future Laws, or by
priorities, rationing or curtailment of labor or materials, or by war, civil
commotion, strikes or riots, or any manner or thing resulting therefrom, or by
any other cause or causes beyond the control of Landlord or Tenant, nor shall
this Lease be affected by any such causes; and, except as expressly provided in
subsection 12(e) of this Lease, no diminution in the amount of the space used by
Tenant caused by legally required changes in the construction, equipment,
fixtures, motors, machinery, operation or use of the Leased Premises shall
entitle Tenant to any abatement, diminution or reduction of the rent or any
other charges required to be paid by Tenant pursuant to the terms of this Lease.
(c) Landlord represents that to the best of its knowledge the
Leased Premises complies with all Laws existing as of April 1, 2005; provided,
that any breach of this representation by Landlord shall not give Tenant right
to terminate this Lease if such breach does not materially and adversely effect
Tenant's use and occupancy of the Leased Premises and Tenant's only rights shall
be to recover any `damages or expenses incurred by Tenant on account of any such
breach.
8. MAINTENANCE AND REPAIR.
(a) Tenant shall promptly throughout the term of this Lease at
Tenant's sole cost and expense, take good care of and maintain the Leased
Premises including all grounds, shrubs, lighting fixtures, fences, lawns,
sprinklers and smoke fire and panic alarms and all roadways, sidewalks, curbs
and parking lots (to the, extent the same are subject to Tenant's control) on,
adjacent and appurtenant thereto, in good order and repair, and shall promptly
remove all accumulated snow, ice and debris from any and all roadways,
sidewalks, curbs and parking lots located upon or appurtenant to the Leased
Premises.
(b) Tenant shall not commit or suffer to be committed any
waste upon or about the Leased Premises, and shall promptly at its cost and
expense, make all necessary replacements, restorations, renewals and repairs to
the Leased Premises and appurtenances thereto, whether interior or exterior,
structural or non-structural, ordinary or extraordinary foreseen or unforeseen,
ordinary wear and tear excepted. Notwithstanding the foregoing, unless caused by
the negligence or willful acts of Tenant, its agents, servants, contractors or
employees: in the event in any six (6) consecutive calendar month period during
the term hereof, the cost of any necessary repairs, replacements, restorations
or renewals pursuant to this Article 8 or pursuant to Section 7(a) hereof, shall
(x) exceed an amount equal to the ten applicable monthly Minimum Rental
hereunder multiplied by six (6) (the "Threshold Cost"), as such cost shall be
certified to Landlord by Tenant's architect or general contractor, and (y) not
be necessitated as a result of Tenant's use or manner of use of the Leased
Premises or the negligence of Tenant or any agent, servant, employee or
contractor of Tenant, Tenant shall have the right, in lieu of making such
repairs, replacements, restorations or renewals, to elect to cancel and
terminate this Lease on ninety (90) days written notice (the "Cancellation
Notice") to Landlord and, upon the expiration of such ninety (90) day period
this Lease shall be deemed cancelled and terminated, unless within thirty (30)
days of its receipt of the Cancellation Notice Landlord shall notify Tenant (the
"Landlord's Notice") that Landlord agrees: (x) to cause all such repairs,
replacements, restorations or renewals to be made; and (y) to pay any such costs
therefor in excess of the Threshold Costs. Upon Tenant's receipt of the
Landlord's Notice, the Cancellation Notice shall be deemed withdrawn by Tenant
and of no further force and effect and upon Landlord's completion of such
repairs, replacements, restorations or renewals, Tenant shall pay to Landlord
the cost therefor, not to exceed the Threshold Cost. Repairs, restorations,
renewals and replacements shall be at least equivalent in quality to the
original work or the property replaced, as the case may be. Tenant shall not
make any claim or demand upon or bring any action against the Landlord for any
loss, cost, injury, damage or other expense caused by any failure or defect,
structural or non-structural, of the Leased Premises or any part thereof.
(c) Landlord shall not under any circumstances be required to
build any improvements on the Leased Premises, or to make any repairs,
replacements, alterations or
renewals of any nature or description to the Leased Premises or to any of the
Improvements, whether interior or exterior, ordinary or extraordinary,
structural or non-structural, foreseen or unforeseen, or to make any expenditure
whatsoever in connection with this Lease or to inspect or maintain the Leased
Premises in any way. Tenant hereby waives the right to make repairs,
replacements, renewals or restorations at the expense of Landlord pursuant to
any Laws.
9. CHANGES, ALTERATIONS AND NEW CONSTRUCTION BY THE TENANT.
(a) Tenant, at its sole cost and expense, shall have the right
at any time and from time to time during the term of this Lease to make changes
and alterations to the building or buildings on the Leased Premises or replace
any building or buildings damaged or destroyed (all of the foregoing are
hereinafter collectively called "Tenant Changes" and any of the foregoing is
called a "Tenant Change"), subject, however, in all cases, to the following:
(i) Landlord's and any Mortgagee's prior written
consent shall be required in each instance of any Tenant Change involving the
structure or exterior of any building located on the Lease Premises.
(ii) In addition to the consent required under
Section 9(a)(i) above, any Tenant Change, whether or not structural or exterior,
involving an estimated coat of more than $50,000.00 shall require the prior
written consent of the Landlord and, any Mortgagee, if required under the
provision of any Mortgage.
(iii) No Tenant Changes shall be undertaken until the
Tenant shall have procured and paid for all required permits and authorizations
of all municipal departments and governmental subdivisions having jurisdiction;
and, at Tenant's expense, the Landlord shall join in any application for such
permits and authorizations whenever such action is necessary, at no expense or
other liability to Landlord.
(iv) Any Tenant Changes which are structural or which
involve an estimated cost of more than $50,000.00 shall be conducted under the
supervision of a licensed architect or engineer selected by Tenant and
reasonably acceptable to Landlord and shall be made in accordance with detailed
plans and specifications (the "Plans and Specifications") and cost estimates
prepared by such architect or engineer and approved in writing by Landlord,
which approval Landlord agrees not unreasonably to withhold and if required,
approved by any Mortgagee.
(v) Any Tenant Changes shall be made promptly and in
a good workmanlike manner and in compliance with all applicable permits and
authorizations and building and zoning laws and all Laws and in accordance with
the orders, rules and regulations of the Board of Fire Insurance Underwriters
and any other body now or hereafter exercising similar functions having or
asserting jurisdiction over the Leased Premises.
(vi) The Leased Premises shall at all times be free
of liens for labor or materials supplied or claimed to have been supplied to the
Leased Premises; subject to Tenant's rights to remove liens as provided herein.
(vii) Any such Tenant Change shall immediately upon
incorporation into the Leased Premises be and become the property of the
Landlord, subject to the leasehold rights of the Tenant hereunder.
(viii) Tenant shall carry all necessary Worker's
Compensation Insurance and builder's all risk insurance designating Landlord and
if required any Mortgagee as additional insured, as their interest may appear as
set forth in Section II and shall furnish Landlord with evidence of any and all
such coverage prior to the commencement of any Tenant Changes.
(ix) If any Tenant Change involving an estimated cost
in excess of $50,000.00 is undertaken by Tenant pursuant to the provisions of
Section 11 or 12 of this Lease, then each request to Landlord for payment shall
be made on seven (7) days prior written notice to Landlord and Mortgagee and
shall be accompanied by a certificate to be made by the supervising architect or
engineer, stating (a) that all of the work completed has been done in compliance
with the approved Plans and Specifications, (b) that the sum requested is justly
required to reimburse the Tenant for payments by the Tenant, to, or is justly
due to, the contractor, subcontractors, materialmen, laborers, engineers,
architects or other persons rendering services or materials for the work (giving
a brief description of such services and materials), and that, when added to all
sums previously paid out by the Landlord, it does not exceed ninety (90%)
percent of the value of the work done to the date of such certificate, with
final payment of the balance of the cost of the work to be made upon
certification by the supervising architect or engineer and by the Mortgagee's
architect, if required, as to completion in accordance with the approved Plans
and Specifications, and (C) that the amount of such proceeds remaining in the
hands of the Landlord will be sufficient on completion of the work to pay for
the same in full (giving in such reasonable detail as Landlord may require an
estimate of the cost of such completion);
(x) If any Tenant Change involving an estimated cost
is excess of $50,000.00 is undertaken by Tenant pursuant to the provisions of
Section 11 or 12 of this Lease, then (i) each request for reimbursement shall be
accompanied by waivers of lien satisfactory to Landlord and the Mortgagee
covering that part of the work for which payment or reimbursement is being
requested and by a search prepared by a title company or licensed abstractor or
by other evidence, satisfactory to Landlord and the Mortgagee, that there has
not been filed with respect to any part of the Leased Premises any mechanics' or
other lien or instrument for the retention of title in respect of any of the
work not discharged of record; and (ii) the request for any payment after the
work has been completed shall be accompanied by a copy of any certificate or
certificates required by law to render occupancy of the Leased Premises and all
portions thereof legal;
(xi) No Tenant Change shall tie-in or connect the
Leased Premises or any Improvements thereon with any property outside the Leased
Premises without the prior written consent of the Landlord;
(xii) No Tenant Change shall (i) reduce the value of
the Leased Premises; (ii) without Landlord's prior consent, change the general
character of the Leased Premises; or (iii) impair the structural integrity of
any building comprising a part of the Leased Premises; and
(xiii) In connection with any Tenant Changes
involving an estimated cost in excess of $50,000.00 and not undertaken pursuant
to the provisions of Section 11 or 12 hereof, Landlord may as a condition of its
consent require Tenant to post a bond or other. security reasonably satisfactory
to Landlord to insure the completion of such Tenant Changes.
(b) Notwithstanding anything to the contrary contained in this
Lease, Tenant shall not, without the prior written approval of the Landlord, and
the Mortgagee if required, make any alteration or change to the Leased Premises
which would decrease the size of or decrease the square foot floor area of any
building comprising a part of the Leased Premises.
10. INDEMNITY AND PUBLIC LIABILITY INSURANCE.
(a) Tenant shall at all times indemnify Landlord for, defend
Landlord against, and save Landlord harmless from, any liability, loss, cost,
injury, damage or other expense whatsoever that may occur or be claimed by or
with respect to any person(s) or property on or about the Leased Premises and
resulting directly or indirectly from the use, misuse, occupancy, possession or
unoccupancy of the Leased Premises by Tenant or any concessionaires, subtenants
or other persons claiming through or under Tenant, or their respective agents,
employees, licensees, invitees, guests or other such persons, or from the
conditions of the Leased Premises. Tenant shall, at its cost and expense, defend
Landlord from and against any and all such actions, claims and demands and shall
indemnify Landlord for all costs, expenses and liabilities it may incur in
connection therewith. Landlord shall not in any event whatsoever be liable for
any injury or damage to the Leased Premises or to the Tenant or to any
concessionaires, subtenants or other persons claiming through or under Tenant,
or their respective agents, employees, licensees, invitees, guests or other such
persons or to any property of any such persons, unless in any such case the same
shall arise from Landlord's gross negligence. Tenant shall not make any claim or
demand upon or institute any action against the Landlord as a result of such
injury or damage.
(b) Tenant, at its cost and expense, shall obtain and maintain
in force throughout the term of this Lease, comprehensive general liability
insurance against any loss, liability or damage on, about or relating to the
Leased Premises, with limits of not less than One Million ($1,000,000.00)
Dollars for death or injuries to one person and not less than Five Million
($5,000,000.00) Dollars for death or injuries to two or more persons in one
occurrence, and not less than One Million ($1,000,000.00) Dollars for damage to
property. Any such insurance obtained and maintained by Tenant shall name both
Landlord and Tenant as the insured parties therein and shall be obtained and
maintained from and with a reputable and financially sound insurance
company(ies) reasonably acceptable to Landlord, authorized to issue such
insurance in the State of New York.
(c) The policies of insurance required hereunder shall contain
an agreement by the insurer that it will not cancel or modify such policy except
after thirty (30) days prior written notice to Landlord by certified mail,
return receipt requested. Not less than thirty (30) days prior to the expiration
of any such insurance policy, Tenant shall deliver to Landlord a certificate
evidencing the replacement or renewal thereof.
(d) Tenant shall furnish Landlord with duplicate original(s)
or original certificate(s) of such insurance policies, including renewal and
replacement policies, together
with written evidence that the premiums therefor have been paid. It is
understood and agreed that said policies may be blanket policies covering other
locations operated by Tenant, provided that such blanket policies specifically
identify the Leased Premises and otherwise comply with the provision of this
Section 10.
(e) Subject to the provision of this Lease, Tenant shall
comply with the requirements of any Mortgages relating to the insurance and to
the proceeds of insurance maintained and required to be maintained by Tenant
pursuant to the provisions of Section 10 and 11 of this Lease.
11. INSURANCE FOR DAMAGE OR DESTRUCTION AND WORKER'S COMPENSATION.
(a) The Tenant shall, throughout the term of this Lease, at
its own cost and expense, obtain and maintain in full force and effect and in
the name of Tenant, Landlord and, if so requested by Landlord, any Mortgagees
(except that Landlord and any Mortgagee need not be named on any Worker's
Compensation policy):
(i) all risks insurance, including but not limited to
collapse, loss or damage occasioned by fire, the perils included in the
so-called extended coverage endorsement, vandalism and malicious mischief, and
water damage and containing Replacement Cost, Agreed Amount and Demolition and
Increased Cost due to Ordinance endorsements covering the Improvements and
all-replacements and additions thereto, and all, fixtures, equipment and other
personal property therein, the foregoing coverage shall be provided in amounts
sufficient to provide one hundred (100%) percent of the full replacement cost of
the Improvements and shall be determined from time to time, at Tenant's expense,
at the request of the Landlord, by any appraiser selected by Tenant's and
approved by Landlord and the insurance carrier;
(ii) if a sprinkler system shall be located in the
Leased Premises, sprinkler leakage insurance in amounts reasonably satisfactory
to Landlord and any Mortgagees;
(iii) such other insurance and in such amounts as may
from time to time reasonably be required by Landlord and/or any Mortgagees;
(iv) Boiler and Machinery Broad Form policy covering
explosion insurance in respect of steam and pressure boilers and similar
apparatus, if any, located on the Leased Premises in an amount equal to one
hundred (100%) percent of the full replacement cost of the Improvements;
(v) war risk insurance as and when such insurance is
obtainable from the United States Government or any agency or instrumentality
thereof, and in an amount not less than the full insurable value of the Leased
Premises;
(vi) Worker's Compensation insurance subject to
statutory limits or better in respect of any work or other operations on or
about the Leased Premises;
(vii) such other insurance with respect to the Leased
Premises and in such amounts as Landlord and any Mortgagee from time to time may
request against such other
insurable hazards which at the time in question are commonly insured against in
the case of property similar to the Leased Premises; and
(viii) during the performance of any construction,
broad form Builder's All-Risk insurance.
(ix) flood insurance, if Landlord is advised that the
Secretary of Housing and Urban Development or such other federal office or
agency with jurisdiction, has determined that the Leased Premises are in an area
which has been designated as having "special flood hazards". Tenant shall obtain
the maximum amount of flood insurance available under the National Flood
Insurance Program if such insurance is required.
(b) All such insurance shall:
(i) be obtained from and maintained with reputable
and financially sound insurance company(ies) reasonably acceptable to Landlord
and any Mortgagees, authorized to issue such insurance in the State of New York;
(ii) be reasonably satisfactory to Landlord and to
any Mortgagees;
(iii) except for rent insurance, if any, provided
that the proceeds of any loss shall be payable to Landlord, or if Landlord so
requests to any Mortgagees, for the purposes set forth in this Lease;
(iv) contain an agreement by the insurer that it will
not cancel or modify such policy except after thirty (30) days' prior written
notice to Landlord and any Mortgagees by certified mail, return receipt
requested; and
(v) provided that any loss otherwise payable
thereunder shall be payable notwithstanding any act or negligence of Landlord or
Tenant which might, absent such agreement, `result in a forfeiture of all or
part of the payment of such loss.
(c) Not less than thirty (30) days prior to the expiration of
any such insurance policy, Tenant shall deliver to Landlord a certificate
evidencing the replacement or renewal thereof.
(d) The Tenant shall furnish Landlord and any Mortgagees with
duplicate original(s) or original certificate(s) together with true copy(ies) of
all such insurance policies, including renewal and replacement policy(ies),
together with written evidence that the premiums therefor have been paid It is
understood and agreed that said policies may be blanket policies covering other
locations operated by Tenant, provided (i) that such blanket policies
specifically identify the Leased Premises and otherwise comply with the
provisions of this Section 11, and (ii) that such policies shall provide for a
reserved amount thereunder with respect to the Leased Premises so as to assure
that the amount of insurance required by the provisions of this Section 11 will
be available notwithstanding any losses with respect to other property covered
by such blanket policies.
(e) If any portion of the Leased Premises is damaged or
destroyed by fire or other casualty, Tenant shall forthwith give notice thereof
to Landlord and Tenant shall, at its cost and expense, forthwith repair,
restore, rebuild or replace the damaged or destroyed Improvements, fixtures or
equipment, and complete the same as soon as reasonably possible, to the
condition they were in prior to such damage or destruction, except for such
changes in design or materials as may then be required by Law. The Landlord, in
such event, shall, to the extent and at the times the insurer and any Mortgagees
make the proceeds of the insurance available, reimburse the Tenant for the costs
of making such repairs, restoration, rebuilding and replacements, provided
further that said reimbursements need be made only under such conditions that
the Landlord and any Mortgagees are assured that at all times the Leased
Premises shall be free of liens or claims of liens by reason of such work, and
provided further that the portion of the proceeds paid out at any time shall not
exceed the value of the actual work and materials incorporated in the repaired,
restored, rebuilt or replaced Leased Premises and that the conditions described
in Section 9 are complied with. To the extent, if any, that the proceeds of
insurance made available as aforesaid are insufficient to pay the entire cost of
making such repairs, restoration, rebuilding and replacements, and
notwithstanding the expiration or termination of the term of this Lease, the
Tenant shall pay the amount by which such costs exceed the insurance proceeds
made available as aforesaid on demand. Any surplus of insurance proceeds over
the cost of restoration once such restoration shall be completed, shall be the
property of the Tenant. Notwithstanding the foregoing, if the Improvements shall
be damaged or destroyed by fire or other casualty through no fault of Tenant,
its agents, servants, contractors or employees, and the estimated cost to
restore the same to the condition existing prior to the date of such fire or
other casualty shall exceed an amount equal to fifty (50%) percent of total
insured value of the Improvements, then Tenant shall have the right to terminate
this Lease on thirty (30) days prior written notice to Landlord, which notice
shall include an assignment to Landlord of all of Tenant's right, title and
interest in and to any insurance proceeds for the repair or restoration of the
Improvements. Upon the expiration of such thirty (30) day period, this Lease
shall cease and terminate and, except for any actual or contingent liabilities
of Tenant to Landlord accrued to such date of termination, Landlord and Tenant
shall have no further liability or obligation to each other under this Lease.
(f) In the event of any damage to or destruction of the Leased
Premises, Tenant shall promptly notify Landlord and any Mortgagees and shall
file prompt proof of loss to the relevant insurance company(ies). In the event
the Tenant fails to file such proof of claims, the Tenant hereby authorizes the
Landlord and/or the Mortgagee to file any such proofs of claims and take any
actions necessary to preserve and protect any such claims under the relevant
insurance policies.
(g) The obligation to pay the rent provided for herein and to
otherwise perform Tenant's obligations hereunder shall continue unabated by
reason of such damage or destruction; that is, there shall be no abatement or
diminution of rent or release from any of Tenant's obligations hereunder by
reason of such damage or destruction regardless of the period of time, if any,
during which the Leased Premises or any part thereof remain untenantable, any
Laws .to the contrary notwithstanding, except to the extent Landlord shall
actually receive the proceeds of rent insurance as its sole property.
(h) The provisions and requirements of Section 9 shall apply
with respect to any repairing, restoring, rebuilding or replacing made pursuant
hereto; and same shall be made in accordance with the Plans and Specification to
the extent same is. practicable.
(i) As to any loss or damage which may occur upon the property
of a party hereto and be collected under any insurance policy(ies), such party
hereby releases the other from any and all liability for such loss or damage to
the extent of such amounts collected.
(j) Tenant shall not take out separate insurance concurrent in
form or contributing in the event of loss with that required to be furnished by
Tenant under Sections 10 and 11 of this Lease, unless Landlord, and with respect
to the insurance described in Section 11, any Mortgagees designated by Landlord,
are included therein as named insureds, with loss payable as in said Sections
provided. Tenant shall immediately notify Landlord whenever any such separate
insurance is taken to and shall deliver to Landlord duplicate original(s)
thereof, or original certificate(s) evidencing the same with true copies
thereof, as provided in this Lease.
12. CONDEMNATION.
(a) In the event that at any time during the term of this
Lease, title to the whole or materially all of the Leased Premises shall be
taken by the exercise of the right of condemnation of eminent domain or by
agreement between the Landlord and those authorized to exercise such right, this
Lease shall terminate and expire on the date of such taking (herein called the
"Taking Date").
(b) If (i) forty (40%) percent or more of the main building on
the Leased Premises shall be taken, or (ii) forty (40%) percent or more of the
parking accommodations, if any, shall be taken, or `(iii) all reasonable means
of ingress and egress to and from the Leased Premises are permanently eliminated
by reason of such a taking, then and in any such events, Landlord and Tenant
shall each have the right to terminate this Lease on the next date for payment
of Minimum Rental occurring at least sixty (60) days after notice to the other
given within thirty (30) days after the Taking Date; provided, however, that
Tenant may not terminate this Lease by reason of any such reduction of the
parking accommodations, if any, if prior to the actual reduction Landlord shall
have provided substitute parking areas adjacent to or in the immediate vicinity
of the Leased Premises, which, together with the remaining parking
accommodations, are sufficient to produce accommodations equal to eighty (80%)
percent of this accommodations existing prior to such taking.
(c) If and when it shall be established that this Lease shall
terminate pursuant to the provisions of subsection (b) of this Section 12, then
Tenant shall, if less than the entire Leased Premises shall have been taken, and
Tenant elects to cancel as a result thereof, deliver to Landlord a certificate
of Tenant, signed by the President or any Vice President thereof, stating that,
in the judgment of the Board of Directors of Tenant, the portion of the Leased
Premises or the means of ingress and egress so taken is sufficient to fulfill
the conditions set forth in subdivisions (i), (ii) or (iii) of subsection (b) of
this Section 12.
(d) If this Lease shall terminate pursuant to the provisions
of subsection (a) or (b) of this Section 12, then, (i) except with respect to
obligations and liabilities of Tenant under
this Lease, actual or contingent, which have arisen on or prior to the Taking
Date, this Lease shall terminate on the Taking Date upon payment by Tenant of
all installments of Minimum Rental and all other sums then due and payable under
this Lease to and including the Taking Date and (ii) Landlord shall be entitled
to the entire award payable in connection with such taking, without claim by
Tenant to all or any part thereof.
(e) In the event of any taking of the Leased Premises or any
part thereof, if this Lease shall not terminate as provided in subsections 12(a)
and 12(b) above, then this Lease shall continue unaffected (except as
hereinafter specifically otherwise provided) and the Landlord shall be entitled
to all awards, damages, consequential damages and compensation for such taking
and the Tenant shall not be entitled to share in any such award or have any
claim against Landlord for any part thereof, provided: (i) Landlord shall, to
the extent the "Net Award" (defined herein to mean the entire award less all of
Landlord's expenses related thereto) paid for the Improvements on the Leased
Premises is made available to Landlord, reimburse Tenant for its costs of
demolition, repair, rebuilding and restoration to return the Improvements to a
tenantable condition, oas and when expended, and paid in like manner and subject
to the provisions and conditions contained in Section 9 above, which provisions
and conditions shall be deemed to apply to such demolition, repair, rebuilding
and restoration; and (ii) the Minimum Rental payable by Tenant to Landlord under
Section 3 hereof, from and after the date of restoration of the Leased Premises,
shall be reduced in proportion to the area (on a square foot basis) of the
Improvements existing following such taking over the area (on a square foot
basis) of the Improvements existing on the commencement date of this Lease. In
the event of any taking which does not result in a termination of this Lease,
Tenant shall promptly make such demolition, repair rebuilding and restoration as
are necessary to return the Leased Premises to a complete architectural unit and
a tenantable condition (in accordance with the Plans and Specifications, to the
extent same is practicable), and in the event that the cost of such demolition,
repair, rebuilding and restoration shall exceed the Net Award collected by the
Landlord, the Tenant shall pay the deficiency.
(f) Notwithstanding the foregoing, Tenant, at its cost and
expense, shall be entitled to separately claim, in any condemnation proceeding,
any damages payable for movable trade fixtures paid for and installed by Tenant
(or any persons claiming under Tenant) without any contribution or reimbursement
therefor by Landlord, and for Tenant's loss of business, and for Tenant's
relocation costs; provided Landlord's award is not reduced or otherwise
adversely affected thereby.
13. REMOVAL OF TENANT'S PROPERTY.
Provided the Tenant is not then in default hereunder, the Tenant shall
have the right, at any time during the term of this Lease, to remove "Tenant's
Property", consisting of machinery, trade equipment, business and trade
fixtures, and other trade equipment placed, installed, supplied or made by it in
or on the Leased Premises at Tenant's cost and expense (without any contribution
or reimbursement therefor by Landlord), and which may be removed without
material injury to the Leased Premises; provided, however, that any damage to
the Leased Premises or any part thereof occasioned by such removal shall be
repaired by the Tenant at Tenant's cost and expense. As used herein and
hereafter, the term "Tenant's Property" shall not include or be deemed to
include any item now or hereafter installed in or on the Leased Premises
that is an integral part of the building, including, without limiting the
generality of the foregoing, heating, ventilating and air conditioning plants
and systems, electrical and plumbing fixtures and systems and other like
equipment and fixtures, if any.
14. SUBORDINATION, NON-DISTURBANCE, NOTICE TO LESSORS AND MORTGAGEES.
(a) This Lease, and all rights of Tenants hereunder, are and
shall be subject and subordinate in all respects to all ground and underlying
leases, of all or any portions of the Leased Premises, now or hereafter
existing, and to all Mortgages which may now or hereafter affect all or any
portions of the Leased Premises and/or any of such leases, to each and every
advance made or hereafter to be made under such Mortgages, and to all renewals,
modifications, replacements and extension of such leases and Mortgages and
spreaders and consolidations of such Mortgages. The provisions of this
subsection (a) shall be self-operative and no further instrument of
subordination shall be required. In confirmation of such subordination, Tenant
shall promptly execute and deliver any instruments that Landlord, the lessor or
any such lease or the holder of any Mortgage, or any of their respective
successors in interest, may reasonably request to evidence such subordinations,
and Tenant hereby irrevocably appoints Landlord the attorney-in-fact of Tenant
to execute and deliver such instrument on behalf of Tenant, should Tenant refuse
or fail to do so promptly after request, such power being coupled with an
interest. The lease(s) to which, at the time in question, this Lease is subject
and subordinate are hereinafter sometimes called "Superior Lease(s)" and the
Lessor(s) of a Superior Lease or its (their) successor(s) in interest, at the
time in question, is (are) sometimes hereinafter called "Superior Lessor(s)". If
any Mortgagees shall, from time to time, so require, this Lease shall be prior
in lien to the lien of its or their respective Mortgages.
(b) In the event of any act or omission of Landlord which
would give Tenant the right, immediately or after lapse of a period of time, to
cancel or terminate this Lease, or to claim a partial or total eviction, Tenant
shall not exercise such right (i) until it has given written notice of such act
or omission to each Mortgagee and each Superior Lessor whose name and address
shall previously have been furnished to Tenant in writing, and (ii) unless such
act or omission shall be one which is not capable of being remedied by Landlord
or any Mortgagee or Superior Lessor within a reasonable period of time, until a
reasonable period for remedying such act or omission shall have elapsed
following the giving of such notice and following the time when all such
Mortgagees and Superior Lessors shall have become entitled under such Mortgages
or Superior Leases, as the case may be, to remedy the same (which reasonable
period shall in no event be less than the period to which Landlord would be
entitled under this Lease or otherwise, after similar notice, to effect such
remedy), provided any such Mortgagee or Superior Lessor shall with due diligence
give Tenant written notice of its intention to and shall commence and continue
to remedy such act or omission, but nothing herein contained shall obligate any
Mortgagee or Superior Lessor to do so unless it so elects.
(c) If a Superior Lessor or a Mortgagee shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights (herein sometimes called "Successor Landlord")
and upon such Successors Landlord's written agreement to accept Tenant's
attornment, Tenant shall attorn to and recognize such Successors Landlord as
Tenant's
landlord under this Lease, and shall promptly execute and deliver any instrument
that such Successor Landlord may reasonably request to evidence such attornment.
Tenant hereby irrevocably appoints Landlord the attorney-in-fact of Tenant to
execute and deliver such instrument on behalf of Tenant, should Tenant refuse or
fail to do so promptly after request, such power being coupled with an interest.
Upon such attornment this Lease shall continue in full force and effect as, and
as if it were, a direct lease between the Successors Landlord and Tenant upon
all of the terms, covenants and conditions set forth in this Lease, and all such
terms, covenants and conditions. shall be applicable after such attornment
except that the Successor Landlord shall:
(i) not be liable for any previous act or omission of
Landlord under this Lease,
(ii) not be subject to any offset, not expressly
provided for in this Lease, which shall have theretofore accrued or which may
thereafter accrue to Tenant against Landlord, and
(iii) not be bound by any previous modification of
this Lease, not expressly provided for in this Lease, other than a modification
of this Lease executed by Landlord and Tenant prior to the execution of any
Superior Lease or Mortgage, or by any previously prepayment of more than one
months Minimum Rental, unless such modification or prepayment shall have been
expressly approved in writing by the Superior Lessor(s) or the Mortgagees)
through or by reason of which the Successor Landlord shall have succeeded to the
rights of Landlord under this Lease.
15. NON-WAIVER.
Neither a failure by the Landlord to exercise any of its options
hereunder, no failure to enforce its rights or seek its remedies upon any
default, shall effect or constitute a waiver of the Landlord's right to exercise
such option, to enforce such right, or to seek such remedy with respect to that
default or to any prior or subsequent default. The remedies provided in this
Lease shall be cumulative and shall not in any way abridge, modify or preclude
any other rights or remedies to which the Landlord may be entitled either at law
or in equity.
16. QUIET ENJOYMENT.
If the Tenant pays the rent it is obligated hereunder to pay, and
observes all other terms, covenants and conditions hereof, it may peaceably and
quietly have, hold and enjoy the Leased Premises during the term of this Lease,
subject, however, to all the terms of this Lease. No failure by Landlord to
comply with the foregoing covenant shall give Tenant any right to cancel or
terminate this Lease or to abate, reduce or make any deduction from or .offset
against any rent or any other sum payable under this Lease, or to fail to
perform any other obligations of Tenant hereunder.
17. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not sublet the Leased Premises, nor any part
thereof, nor assign, or otherwise dispose of this Lease or any interest therein,
or any part thereof, without
Landlord's prior written consent in each of the foregoing cases, which consent,
however, to an assignment of this Lease, or subletting of the Leased Premises or
part thereof, shall be in Landlord's sole and absolute discretion and, provided
the following conditions complied with:
(i) Any assignment shall transfer to the assignee all
of the Tenant's rights in, and interests under, this Lease.
(ii) At the time of any assignment and/or subletting,
this Lease must be in full force and effect without any breach or default
thereunder on the part of the Tenant.
(iii) Any assignee, shall assume, by written,
recordable instrument, in form and content satisfactory to Landlord, the due
performance of all Tenant's obligations under this Lease including any accrued
obligations at the time of the assignment. A copy of the assignment and
assumption agreement, both in form and content reasonably satisfactory to
Landlord, fully executed and acknowledged by the assignee, together with a
certified copy of a property executed corporate resolution (if the assignee be a
corporation) authorizing such assumption agreement, shall be sent to Landlord,
within ten (10) days from the effective date of such assignment.
(iv) A copy of any sublease fully executed and
acknowledged by the Tenant and the sublessees, shall be mailed to Landlord
within ten (10) days from effective date of such subletting.
(v) Such assignment and/or subletting shall be
subject to all the provisions, terms, covenants and conditions of this Lease and
the Tenant--assignor and such assignee(s) shall continue to be and remain liable
hereunder, it. being expressly understood and agreed that no assignment or
subletting of the Leased Premises shall, in any way, relieve Tenant or any
subsequent assignee(s) from the performance of any of the agreements, terms,
covenants and conditions of this Lease.
(vi) Each subleases permitted under this Section
shall contain provisions to the effect that (A) such sublease is only for the
actual use and occupancy by the sublessee, and (B) such sublease is subject and
subordinate to all of the terms, covenants and conditions of this Lease and to
all of the rights of Landlord thereunder, and (C) in the event this Lease shall
terminate before the expiration of such sublease, the subtenant thereunder will,
at Landlord's option, attorn to Landlord and waive any rights the subtenant may
have to terminate the sublease or to surrender possession thereunder, as a
result of the termination of this Lease.
(b) Notwithstanding anything contained in this Lease to the
contrary and notwithstanding any consent by Landlord to any sublease of the
Leased Premises or to any assignment of this Lease, no subtenant shall assign
its sublease no further sublease the Leased Premises, or any portion thereof,
and no assignee shall further assign its interest in this Lease nor sublease the
Leased Premises, or any portion thereof, without Landlord's prior written
consent in each of such cases, such consent shall be in Landlord's sole and
absolute discretion.
(c) Notwithstanding anything contained in this Lease to the
contrary, should Tenant desire to assign this Lease or sublet the Leased
Premises, it shall give written notice of its intention to do so to Landlord
sixty (60) days or more before the effective date of such proposed
subletting or assignment which notice shall state the name of the proposed
subtenant a copy of the proposed sublease and the terms thereof, a financial
statement of the proposed subtenant in a form and substance acceptable to the
Landlord and Landlord may, at any time within thirty (30) days after the receipt
of such notice from Tenant, cancel this Lease by giving Tenant written notice of
its intention to do so, in which event such cancellation shall become effective
upon the date specified by Landlord, but not less than thirty (30) days more
than ninety (90) days after its receipt by Tenant, with the same force and
effect as if said cancellation date were the date originally set forth as the
expiration date of the term of this Lease. Landlord may enter into a direct
lease with the proposed subtenant or assignee or with any other persons as
Landlord may desire.
(d) Tenant's failure to comply with all of the provisions and
conditions of this Section 17 and all of the subsections hereof shall (whether
or not Landlord's consent is required under this Section), at Landlord's option,
render any purported assignment or subletting null and void and of no force and
effect.
(e) Tenant may not mortgage, pledge or otherwise encumber its
leasehold estate hereunder, and any attempt to mortgage, pledge or otherwise
encumber such estate shall be null and void and of no force and effect.
(f) The Tenant may consolidate with or merge into any other
corporation, convey or transfer all or substantially all of its assets to any
other corporation, or permit any other corporation to consolidated with or merge
into it upon condition that:
(i) The corporation which results from such
consolidation or merger or the transferee to which such sale shall have been
made (the "Surviving Corporation") is a corporation organized under the laws of
any State of the United States, and the Surviving Corporation shall have a net
worth, computed in accordance with generally accepted accounting principles,
consistently applied at least equal to the net worth of Tenant on the day
immediately preceding such consolidation, merger or transfer; and
(ii) the Surviving Corporation shall expressly and
unconditionally assume by written agreement in recordable form to perform all
such obligations of the Tenant hereunder and shall be obligated to perform all
such obligations of the Tenant hereunder to the same extent as if the Surviving
Corporation had originally executed and delivered this Lease; and
(iii) no rights of Landlord under this Lease shall be
affected or reduced by such consolidation, merger, conveyance or transfer.
Tenants covenants that it will not merge or consolidate or sell or otherwise
dispose of all or substantially all of its assets unless there shall be
compliance with all of the foregoing provisions of subsection 17(g) of this
Lease and unless the instrument referred to in subparagraph 17(f) (ii) above
shall have been delivered to Landlord.
(g) Notwithstanding anything to the contrary contained in this
Lease, Landlord's consent to a subletting by Tenant or a portion of the Leased
Premises shall not be required, provided and on condition that:
(i) Such sublease shall be for no more than
twenty-five (25%) percent of the area of the buildings comprising the Leased
Premises:
(ii) Tenant shall, during the one year period from
the date of such sublease (and any renewals or extensions thereof), physically
occupy no less than fifty (50%) percent of the area of the buildings comprising
the Leased Premises; and
(iii) Tenant, such proposed subtenant and the
proposed sublease (as the case may be) shall comply in all respects with the
applicable provisions of subparagraphs (a)(ii), (a)(iv), (a)(v), (a)(vi), (b),
and (d) of this Article 17.
18. ENTRY BY LANDLORD.
Landlord, any Superior Lessor(s) and any Mortgagee(s), and their
respective duly authorized representatives shall have the right to enter the
Leased Premises at all reasonable times (and at any time in the event of an
emergency) for the purposes of:
(a) inspecting the conditions of same, and making such
repairs, alterations, additions, or improvements thereto as may be necessary or
desirable ii Tenant fails to do so as required hereunder (but the Landlord shall
have no duty whatsoever to make any such inspections, repairs, alterations,
additions, or improvements); and
(b) exhibiting the same to persons who may wish to purchase,
finance or lease the same, and during the last twelve (12) months of the term of
this Lease, placing a notice of reasonable size on the Leased Premises offering
the sane or any part thereof for sale or for rent.
19. TENANT'S DEFAULT.
The following shall be defined and deemed as an "Event of Default":
(a) if Tenant shall default in payment of the Minimum Rental
or any additional rent and if Tenant shall fail to cure said default within ten
(10) days after receipt of notice of such default from Landlord;
(b) if Tenant shall default in the performance or observance
of any other term, covenant or condition to be performed or observed by Tenant
under this Lease and if Tenant shall fail to cure said default within twenty
(20) days after receipt of notice of said default from Landlord, or is said
default shall reasonably require longer than twenty (20) days to cure, if Tenant
shall fail to commence to cures said default within twenty (20) days after
receipt of notice thereof and continuously prosecute the curing of the same to
completion with due diligence, or
(c) if Tenant shall make an assignment of its property for the
benefit of creditors or shall institute any proceedings relating to it or its
property under any bankruptcy or insolvency laws of any jurisdiction or shall
petition to any court for, or consent to, the appointment of a receiver, trustee
or assignee of it or any part of its property, or
(d) if an order for relief under any provisions of the
Bankruptcy Reform Act of 1978 shall be entered against Tenant, or
(e) if Tenant shall be declared bankrupt or insolvent
according to law, or
(f) if any bankruptcy or insolvency proceedings shall be
commenced against Tenant and shall not be dismissed within sixty (60) days
thereafter, or
(g) if a receiver, trustee, or assignee shall be appointed
without the consent of Tenant in any bankruptcy or insolvency proceedings of
Tenant or the property of Tenant and shall not be discharged within ninety (90)
days thereafter, or
(h) if Tenant shall be liquidated or dissolved, or shall begin
proceedings toward its liquidation or dissolution, or shall, in any manner,
permit. the divestiture of substantially all of its assets, or
(i) if the Leased Premises becomes vacant or deserted; or
(j) if any execution or attachment shall be issued against
Tenant or any of Tenant's property whereupon the Leased Premises shall be taken
or occupied by someone other than Tenant; or
(k) if this Lease is rejected under Section 365 of Title II of
the U.S. Code (Bankruptcy Code); or
(l) Tenant shall fail to move into and take possession of the
Leased Premises within fifteen (15) days after the commencement of the term of
this Lease; or
(m) The occurrence of a Guarantor's Event of Default under the
Guaranty.
(n) if, as a result of any failure by Tenant to perform or
observe any of the terms, covenants or conditions to be performed or observed by
it under this Lease, a breach or default shall have occurred and be continuing
under any Superior Lease or Mortgage. The word "Tenant" as used in subsections
(c), (d), (e), (f), (g), (h) and (i) of this Section 19 shall mean the then
holder of the Tenant's interest in this Lease hereunder. Any defaults in
Tenant's liabilities or obligations under this Lease occasioned by any acts or
failures to act by any persons having or claiming any right, title and interest
in or to the Leased Premises by, through or under Tenant, shall be deemed the
default of Tenant hereunder. If this Lease is terminated pursuant to this
Section 19, Tenant waives (I) the benefit of any Laws exempting property from
liability for rent or for debt, and (ii) the service of any notice which may be
required by any Laws.
In case of the occurrence of any Event of Default hereinbefore
provided, the Landlord shall have the immediate right of re-entry and may remove
all persons and property from the Leased Premises by summary proceedings, force
or otherwise. In addition, in the event of the occurrence of any Event of
Default (whether or not Landlord shall elect to re-enter or to take possession
pursuant to legal proceedings or pursuant to any notice provided by Laws)
Landlord shall have the right, at its option, to terminate this Lease on not
less than three (3) days notice to Tenant and upon the giving of said notice
this Lease and the term hereof shall cease and expire on the date set forth in
said notice, this Lease and the term hereof shall cease and expire on the date
set forth in said notice as if said date were the expiration date originally set
forth herein and/or it may from time to time, whether or not this Lease be
terminated, make such alterations
and repairs as may be reasonably necessary in order to relet the Leased Premises
or any part(s) thereof for such term or terms (which may extend beyond the term
of this Lease) and at such rental(s) and upon such other terms and conditions as
Landlord in its sole discretion may deem advisable; upon each such reletting all
rentals received by the Landlord from such reletting shall be applied, first, to
the payment of any indebtedness (other than rents due hereunder) of Tenant to
Landlord, second, to the payment of any costs and expenses of such reletting,
including without limitation, brokerage fees (at no greater than customary rates
in the area in which the Leased Premises is located) and reasonable attorney's
fees and of the cost of such alterations and repairs, third, to the pay any
rents due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of future rents and other payments required to
be made by Tenant hereunder as the same may become due and payable hereunder,
with the right reserved to Landlord to bring such action(s) or proceeding(s) for
the recovery of any deficits remaining unpaid without being obliged to await the
end of the term for a final determination of Tenant's account; and the
commencement or maintenance of any one or more actions shall not bar Landlord
from bringing other or subsequent actions for further accruals pursuant to the
provisions of this Section. If such rentals received from such reletting during
any month be less than that to be paid during any month be less than that to be
paid during that month by Tenant hereunder, Tenant shall pay any such deficiency
to Landlord. Such deficiency shall be calculated and paid monthly subject to
Landlord's right of action(s) or proceeding(s) as aforesaid. No such re-entry or
taking possession of the Leased Premises by Landlord shall be construed as an
election on its part to terminate this Lease unless a written notice of such
intention be given to Tenant or unless the termination thereof be decreed by a
court of competent jurisdiction. Notwithstanding any such .reletting by Landlord
without termination, Landlord may at any time thereafter elect to terminate this
Lease for such previous breach. Should Landlord at any time terminate this Lease
for any breach, in addition to any other remedies it may have, it may recover
from Tenant all damages it may incur by reason of such breach as damages for
loss of the bargain and not as a penalty, including the cost of recovering the
Leased Premises, reasonable attorneys' fees, and including the worth, at the
time of such termination, of the excess, if any, of the amount of rental and
charges equivalent to the rental and charges reserved in this Lease for the
remainder of the then term of this Lease, over the aggregate rental value of the
Leased Premises for the remainder of such term, all of which shall be
immediately due and payable from Tenant to Landlord. If any Laws shall validly
limit the amount of the damages provided for in the immediately proceeding
sentence to less than the amount above agreed upon, Landlord shall be entitled
to the maximum amount allowable under such Laws. In the event the Tenant does
not comply with its obligations under this Lease, Landlord shall also have the
right to appropriate injunctive relief. The rights and remedies whether herein
or anywhere else in this Lease provided shall be cumulative, and the exercise of
any one right or remedy shall not preclude the exercise of or act as a waiver of
any other right or remedy of Landlord hereunder, or which may be existing at
law, or in equity or by statute or otherwise.
20. TAX APPEALS AND CONTEST.
(a) Tenant shall have the right, at its cost and expense, to
contest the amount or validity, in whole or in part, of any Imposition of any
kind by appropriate proceedings diligently conducted in good faith, but no such
contest shall be carried on or maintained by Tenant after the time limit for the
payment of any Imposition unless the Tenant, at its option: (i) shall pay the
amount involved under protest; or (ii) shall procure and maintain a stay of all
proceedings to enforce any collection of any Imposition, together with all
penalties, interest, costs and expenses, by a deposit of a sufficient sum of
money, or by such undertaking, as may be required or permitted by law to
accomplish such stay; or (iii) shall deposit with Landlord or any Superior
Lessor or Mortgagee, as security for the performance by the Tenant of its
obligations hereunder with respect to such Impositions, such security in amounts
equal to such contested amount or such reasonable security as may be demanded by
the Landlord or any Superior Lessor or Mortgagee to insure payment of such
contested Imposition and all penalties, interests, costs and expenses which may
accrue during the period of the contest. Upon the termination of any such
proceedings, it shall be the obligation to Tenant to pay the amount of such
Imposition or part thereof, as finally determined in such proceedings, the
payment of which may have been deferred during the prosecution of such
proceedings, together with any costs, fees (including counsel fees), interest,
penalties or other liabilities in connection therewith, whereupon the Landlord
shall arrange to have returned to the Tenant, without interest thereon, all
amounts, if any, held by or on behalf of Landlord which were deposited by the
Tenant in accordance with the provision hereof.
(b) With the prior written consent of the Landlord, Tenant
shall have the right, at its cost and expense, to seek a reduction in the
valuation of the Leased Premises as assessed for tax purposes and to prosecute
any action or proceeding in connection therewith. Provided Tenant is not in
default hereunder, Tenant shall be authorized to collect any tax refund of any
tax paid by Tenant obtained by reason thereof and to retain the same.
(c) Landlord agrees that whenever Landlord's cooperation is
required in any of the proceedings brought by Tenant as aforesaid, Landlord will
reasonably cooperate therein, provided same shall not entail any cost, liability
or expense to Landlord and Tenant will pay, indemnify and save Landlord harmless
of and from, any and all liabilities, losses, judgments, decrees, costs and
expenses (including all reasonable attorneys' fees and expenses) in connection
with any such contest and will, promptly after the final settlement, fully pay
and discharge the amounts which shall be levied, assessed, charged or imposed or
be determined to be payable therein or in connection therewith, and Tenant shall
perform and observe all acts and obligations, the performance of which shall be
ordered or decreed as a result thereof. No such contest shall subject Landlord
or any Superior Lessor or Mortgagee to the risk of any material civil liability
or the risk of any criminal liability, and Tenant shall give such reasonable
indemnity or security to Landlord, any Superior Lessor and nay Mortgagee as may
reasonably be demanded by any of them to insure compliance with the foregoing
provisions of this Section 20.
21. SIGNS.
Tenant may, during the term of this Lease, upon obtaining any and all
necessary permits from governmental authorities, paint or erect and maintain, at
its cost and expense, signs of such dimensions and materials as it may
reasonably deem appropriate in or about the Leased Premises. The Landlord, on
written notice to the Tenant, shall have the right to approve any such signs,
but the Landlord shall not unreasonably withhold its consent to the erection of
such signs so long as the signs preserve the general character of the Leased
Premises. Such signs shall, at the option of the Landlord, be removed by Tenant
upon the termination of its occupancy of the Leased Premises. Subject to
applicable laws, such signs may be located on the exterior walls, on the roof
and inside windows.
22. SURRENDER OF PREMISES.
Except in the case of condemnation described in subsection 12(a), at
the expiration or sooner termination of the term of this Lease, Tenant shall
surrender the Leased premises in the same condition as the Leased Premises were
in upon delivery of possession thereto under this Lease, reasonable wear and
tear excepted, and shall surrender all keys for the Leased Premises to Landlord
at the place then fixed for the payment of rent and shall inform Landlord of all
combinations on locks, safes and vaults, if any, in the Leased Premises. Tenant
shall at such time remove all Tenant's Property, as well as any alterations or
improvements, if requested to do so by Landlord, and shall repair any damage to
the Leased Premises caused thereby, and any or all of such property not so
removed shall, at Landlord's option, become the exclusive property of Landlord
or be disposed of by Landlord, at Tenant's cost and expense, without further
notice to or demand upon Tenant. If the Leased Premises be not surrendered as
and when aforesaid, Tenant shall indemnify Landlord against loss or liability
resulting from the delay by Tenant in so surrendering the Leased Premises
including, without limitation, any claims made by any succeeding occupant
founded on such delay. Tenant's obligation to observe or perform this covenant
shall survive the expiration or other termination of the term of this Lease.
Notwithstanding the foregoing, Tenant shall not be required to remove any
alterations and improvements made by Tenant in the Leased Premises prior to
April 1, 2005.
23. ENVIRONMENTAL REQUIREMENTS.
(a) Definitions:
(i) Hazardous Material shall mean any substance:
1. the presence of which requires investigation
or remediation under any federal, state or local statute, regulation, ordinance,
order, action, policy or common law; or
2. which is or becomes defined as a "hazardous
waste," "hazardous substance," pollutant or contaminant under any federal, state
or local statute, regulation, rule or ordinance or amendments thereto including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. section 9601 et seq.) and/or the Resource Conservation
and Recovery Act (42 U.S.C. section 6901 et seq.); or
3. which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise
hazardous and is or becomes regulated by any governmental authority, agency,
department, commission, board, agency or instrumentality of the United States,
the State of New York or any political subdivision thereof; or
4. the presence of which on the Leased Premises
causes or threatens to cause a. nuisance upon the Leased Premises or to adjacent
properties or poses or threatens to pose a hazard, to the health or safety of
persons on or about the Property; or
5. without limitation which contains gasoline,
diesel fuel or other petroleum hydrocarbons; or
6. without limitation which contains
polychlorinated biphenols (PCBs), asbestos or urea formaldehyde foam insulation.
(ii) Environmental Requirements means all applicable
present and future statutes, regulations, rules, ordinances, codes, licenses,
permits, orders,' approvals, plans, authorizations, concessions, franchises, and
similar items, of all governmental agencies, departments, commissions, boards,
bureaus, or instrumentalities of the United States, states and political
subdivisions thereof and all applicable judicial, administrative, and regulatory
decrees, judgments, and orders relating to the protection of human health or the
environment, including, without limitation:
1. All requirements, including but not limited to
those pertaining to reporting, licensing, permitting, investigation, and
remediation of emissions, discharges, releases, or threatened releases of
"Hazardous Materials," chemical substances, pollutants, contaminants, or
hazardous or toxic substances, materials or wastes whether solid, liquid, or
gaseous in nature, into the air, surface water, ground water, or land, or
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of chemical substances, pollutants,
contaminants, or hazardous or toxic substances, materials, or wastes, whether
solid, liquid, or gaseous in nature; and
2. All requirements pertaining to the protection
of the health and safety of employees or the public.
(b) The Tenant promises that the Tenant will not place or
permit to be placed any Hazardous Materials on the Leased Premises or use or
permit the use of the Leased Premises in a manner that violates applicable
Environmental Requirements, and further, that, if at any time it is determined
that the operation or use of the Leased Premises violates any applicable
Environmental Requirements or that there are materials located on the Leased
Premises that, under any Environmental Requirement, require special handling in
collection, storage, treatment or disposal, the Tenant shall, within thirty (30)
days after written notice thereof, take or cause to be taken, at its sole
expense, such actions as may be necessary to comply with all Environmental
Requirements. If the Tenant shall fail to take such action, the Landlord may
make advances or payments towards performance or satisfaction of the same but
shall be under no obligation so to do; and all suns so advanced or paid,
including, without limitation, reasonable counsel fees, fines, or other penalty
payments and all sums advanced or paid in connection with any judicial or
administrative investigation or proceeding relating thereto, shall immediately,
upon demand, be due from the Tenant and shall bear the Maximum Rate per annum
set forth from the date the same shall become due and payable until the date
paid, and all sums so advanced or paid, with interest as aforesaid, shall be
added as additional rent hereunder. The Tenant shall execute and deliver,
promptly after request, such instruments as the Landlord may deem useful or
required to permit the Landlord to take any such action. Notwithstanding any
provisions of this section, if any Hazardous Materials are found to be located
at or near the Property, such occurrence is an Event of Default under this
Lease.
(c) The Landlord may, at its option, at intervals of not less
than one year, cause an environmental audit of the Leased Premises or portions
thereof to be conducted to confirm the Tenant's compliance with the provisions
of this Paragraph.
(d) The Tenant shall send to the Landlord copies of all
notices, letters or other communications respecting the Lease Premises that are
either received by the Tenant from any governmental or quasi-governmental
authority or agency concerning Environmental Requirements or sent by the Tenant
to any such authority or agency, promptly upon such receipt or transmittal by
the Tenant.
(e) The Tenant shall indemnify, hold harmless, reimburse, and,
upon request of the Landlord, defend the Landlord from, against and for any and
all liability or responsibility that may at any time be imposed upon the
Landlord by reason of the Leased Premises or any portion thereof or the
operation or use thereof by the Tenant or any prior owner thereof not complying
fully with all Environmental Requirements. The provisions of this paragraph
shall survive the termination of this Lease.
24. "LANDLORD" DEFINED.
(a) The term "Landlord" as used in this Lease means only the
owner of the Leased Premises, or the Mortgagee in possession of the Leased
Premises, for the time being, so that in the event of any sale or other transfer
of the Leased Premises, Landlord shall be and hereby is entirely freed and
relieved of all liabilities and obligations of Landlord hereunder, and it shall
be deemed without further agreement between the parties and any successor of
Landlord, that such successors has assumed and agreed to perform and observe all
liabilities and obligations of Landlord hereunder.
(b) Notwithstanding anything contained herein to the contrary,
it is specifically understood and agreed that there shall be no personal
liability on Landlord in respect of any of the terms, covenants, conditions or
provisions of this Lease, and in the event of a breach or default by Landlord of
any of its liabilities and obligations under this Lease, Tenant and any persons
claiming by, through or under Tenant shall look solely to the equity of the
Landlord in the Leased Premises for the satisfaction of Tenant's and such
persons' remedies and claims for damages.
25. TENANT'S PAYMENTS.
Each and every payment and expenditure, other than Minimum Rental and
other than costs for any additions, alterations, repairs, replacements and
improvements to the Improvements, which are required to be paid by Tenant under
this Lease shall be deemed to be additional rent hereunder, whether or not the
provisions requiring payment of such amounts specifically so state, and shall be
payable, unless otherwise provided in this Lease, on demand by Landlord and in
the case of the non-payment of any such amount, Landlord shall have, in addition
to all of its other rights and remedies, all of the rights and remedies
available to Landlord hereunder or by Laws in the case of non-payment of Minimum
Rental. Unless expressly otherwise provided in this Lease, the performance and
observance by Tenant of all the terms, covenants and conditions of this Lease to
be performed and observed by Tenant hereunder shall be performed and observed by
Tenant at Tenant's sole cost and expense. Tenant agrees to pay or reimburse
Landlord, on demand, for any reasonable costs and expenses that may be incurred
by Landlord in connection with its review of any instruments or documents
requested by Tenant pursuant to this Lease or relating to the Leased Premises
including but not limited to
the costs and expenses of making such investigations as the Landlord shall deem
appropriate and the reasonable legal fees and disbursements of Landlord's
counsel. All payments of Minimum Rental hereunder shall be made to Landlord by
check or wire transfer of federal funds, as Landlord may direct, at the address
set forth in the beginning hereof unless otherwise provided herein or at such
other address as may be designated by Landlord;.
26. RIGHT TO CURE DEFAULTS.
If Tenant shall fail to fully comply with any of its liabilities or
obligations (see original document last line has been cut of f from copy) to
make repairs maintain various policies of insurance, comply with all Laws and
pay all Impositions and bills for utilities), then (3) days after the giving of
written notice of such breach to Tenant (except that prior written notice shall
not be required in the event of an emergency) Landlord shall have the right, at
its option to cure such breach at Tenant's cost and expense. Tenant agrees to
reimburse Landlord (as additional rent) for all losses, costs, damages and
expenses resulting therefrom or incurred in connection therewith, together with
interest thereon (at a rate equal to the "Maximum Rate"), promptly upon demand.
27. COVENANT AGAINST LIENS.
(a) If, because of any act or omission (or alleged act or
omission) of Tenant, any mechanic's or other lien, charge or order for payment
of money or other encumbrances shall be filed or imposed against Landlord, any
Superior Lessor, any Mortgagee and/or any portion of the Leased Premises
(whether or not such lien, charge, order or encumbrance is valid or enforceable
as such), Tenant shall, at its cost and expense, cause same to be discharged of
record or bonded within thirty (30) days after notice to Tenant of the filing or
imposition thereof; and Tenant shall indemnify and defend Landlord against and
save Landlord harmless from all losses, costs, damages, expenses, liabilities,
suits, penalties, claims, demands and obligations, including, without
limitation, reasonable counsel fees, resulting therefrom. If Tenant fails to
comply with the foregoing provisions, Landlord shall have the option of
discharging or bonding any such lien, charge, order or encumbrance, and Tenant
agrees to reimburse Landlord (as additional rent) for all losses, costs,
damages, and expenses resulting therefrom or incurred in connection therewith,
together with interest thereon (at a rate equal to the "Maximum Rate"), promptly
upon demand.
(b) All materialmen, contractors, artisans, mechanics,
laborers and any other persons now or hereafter furnishing any labor, services,
materials, supplies or equipment to Tenant with respect to any portion of the
Leased Premises, are hereby charged with notice that they must look exclusively
to Tenant to obtain payment for same. Notice is hereby given that the Landlord
shall not be liable for any labor, services, materials, supplies or equipment
furnished or to be furnished to the Tenant upon credit, and that no mechanic's
or other lien for any such labor, services, materials, supplies or equipment
shall attach to or affect the estate or interest of the Landlord in and to the
Leased Premises.
28. WAIVER OF REDEMPTION.
It being clearly understood by Tenant that Landlord is unwilling to
enter into any lease of the Leased Premises unless the statutory rights or
redemption after a dispossess proceeding and
to a second further trial after an action in ejectment shall be waived by Tenant
(unless such second or further trial results from an Appellate Court decision
reversing the decision of the first trial) and Tenant being willing to waive all
such rights of redemption conferred by statute in order that it may. secure a
lease, Tenant covenants and agrees that in the event of an action for ejectment
or any other action or proceeding to dispossess, terminating this Leases, the
right of redemption provided or permitted by any Laws, and the right to any
second or further trial provided or permitted by any Laws, shall be and hereby
are expressly waived (unless such second or further trial results from an
Appellate Court decision reversing the decision of the first trial). Tenant
hereby expressly waives the service of any notice in writing of intention to
re-enter as provided for or may be provided for in and by the laws of the State
of New York, as the same may from time to time exist.
29. LANDLORD'S AND TENANT'S CERTIFICATES.
Landlord and Tenant shall, each without charge at any time and from
time to time, within ten (10) days after request by the other party, certify by
written instrument, duly executed, acknowledged and delivered to any ground
lessor, Mortgagee, assignee of any Mortgagee or purchaser, or any proposed
Mortgagee, or proposed assignee or sub-tenant of Tenant or any other person,
firm or corporation specified by Landlord or Tenant:
(a) That this Lease is unmodified and in full force and effect
(or, if there has been modification, that the same if in full force and effect
as modified and stating the modifications);
(b) Whether or not there are then existing any breaches or
defaults by the other party under any of the terms of this Lease and specifying
such breach of default or any setoffs or defenses against the enforcement of any
of the agreements, terms covenants or conditions of this Lease upon the part of
the Landlord or Tenant, as the case may be, to be performed or complied with
(and, if so, specifying the same and the steps being taken to remedy the same);
and
(c) The dates, if any, to which the rental(s) and other
charges under this Lease have been paid in advance.
30. WAIVER OF TRIAL BY JURY.
Landlord and Tenant do hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other, upon any matters
whatsoever arising out of or in any way connected with this Lease, Tenant's use
or occupancy of the Leased Premises, and/or claim of injury or damage. It is
further mutually agreed that in the event Landlord commences any summary
proceeding for non-payment of Minimum Rental or additional rent, Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding.
31. NET LEASE: NON-TERMINABILITY.
This is an absolutely net lease, and, except as otherwise specifically
provided in Section 12 hereof, this Lease shall not terminate nor shall Tenant
have any right to terminate this Lease; nor shall Tenant be entitled to any
abatement, deduction, deferment, suspension or reduction of,
or setoff, defense or counterclaim against, any rentals, charges, or other sums
payable to Tenant under this Lease; nor shall the respective obligations of
Landlord and Tenant be otherwise affected by reason of damage to or destruction
of the Leased Premises from whatever cause, any taking by condemnation, eminent
domain or by agreement between Landlord and those authorized to exercise such
rights, the lawful or unlawful prohibition of Tenant's use of the Leased
Premises, the interference with such use by any persons, corporations or other
entities, or by reason of any eviction by paramount title, or by reasons of any
default or breach of any warranty by Landlord under this Lease or any other
agreement between Landlord and Tenant or to which Landlord and Tenant are
parties, or for any other cause whether similar or dissimilar to the foregoing,
any Laws to the contrary notwithstanding; it being the intention that the
obligations of Landlord and Tenant hereunder shall be separate and independent
covenants and agreements and that the Minimum Rental, additional rent and all
other charges and sums payable by Tenant hereunder shall continue to be payable
in all events unless the obligations to pay the same shall be terminated
pursuant to the express provisions of this Lease; and Tenant covenants and
agrees that it will remain obligated under this Lease in accordance with its
terms, and that it will not take any action to terminate, cancel, rescind or
void this Lease, notwithstanding the bankruptcy, insolvency, reorganization,
composition, readjustment, liquidation, dissolution, winding up or other
proceedings affecting Landlord or any assignee of, or successor to, Landlord,
and notwithstanding any action with respect to this Lease that may be taken by a
trustee or receiver of Landlord or any assignee of, or successor to, Landlord or
by any court in any such proceeding.
32. MISCELLANEOUS PROVISION.
(a) NOTICES. Any notice, communication, request or other
document or demand required or permitted under this Lease shall be in writing
and shall be given to Landlord or Tenant by first class certified or registered
mail, return receipt requested, Federal or like express mail service or by hand
at their respective addresses hereinabove set forth, except that following the
commencement date of this Lease, Tenant's address shall be deemed to be the
address of the Leased Premises. Such notification shall be deemed given as of
the date of mailing, depositing with a representative of Federal Express or like
express mail service or hand delivery. Either party may, from to time, change
the address at which such written notices, communications, requests, or other
documents or demands are to be given, by giving the other party(ies) written
notice of such changed address, pursuant to the terms hereinabove set forth. At
Landlord's option, which may be exercised at any time hereafter, Tenant shall
send copies of any and all said notices and other communications designated by
Landlord, to any Mortgagees and Superior Lessors designated by Landlord, in the
same manner as notices are required to be sent to Landlord, and at such
address(es) as Landlord may from time to time designate by notice to Tenant. The
attorney for the Landlord or Tenant are authorized to give any and all notices
on behalf of their respective clients.
(b) RELATIONSHIP OF THE PARTIES. It is the intention of the
parties hereto to create the relationship of Landlord and Tenant, and no other
relationship whatsoever, and unless expressly otherwise provided herein, nothing
herein shall be construed to make the parties hereto liable for any of the
debts, liabilities or obligations of the other party.
(c) GOVERNING LAWS. This Lease shall be governed exclusively
by the provisions hereof and by the laws of the State of New York as the same
may from time to time exist.
(d) INVALIDITY OF PARTICULAR PROVISION. If any term or
provision of this Lease or the application thereof to any person or circumstance
shall, to any extent, be invalid or unenforceable, the remainder of this Lease,
or the application of such term or provision to person 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.
(e) WAIVER. Failure on the part of either party to complain of
any action or non-action on the part of the other party, no matter how long the
same may continue, shall never be deemed to be a waiver by either party of any
of its rights hereunder. Acceptance by Landlord of Minimum Rental, additional
rent or any other charges paid by Tenant hereunder shall not be or be deemed to
be a waiver by Landlord of any default by Tenant, whether or not Landlord knows
of such default. No waiver at any time of any of the provisions hereof by either
party shall be construed as a waiver of any of the other provision hereunder and
a waiver at any time of any of the provisions hereof shall not be construed as a
waiver at any subsequent time of the same provisions.
(f) COUNTERPARTS. This Lease may be executed in several
counterparts, each of which shall be deemed an original, and such counterparts
shall constitute but one and the same instrument.
(g) SOLE AGREEMENT. This Lease sets forth all the promises,
inducements, agreements, conditions and understandings between Landlord and
Tenant relative to the Leased Premises, and there are no promises, agreements,
conditions or understanding, either oral or written, express or implied between
them, other than as herein set forth. except as herein otherwise provided, no
subsequent alteration, amendment, change or addition to this Lease shall be
binding upon Landlord or Tenant, unless reduced to writing and signed by the
party(ies) to be charged therewith.
(h) SHORT FORM OF LEASE. At the request of either Landlord or
Tenant, a short form of Lease for recording purposes only, in form reasonably
satisfactory to the Landlord's counsel, shall be executed by Landlord and Tenant
and may be recorded by the party requesting the same. In the event such short
form of lease is recorded, the Tenant shall pay any and all taxes, filing fees,
costs and expenses of such recording whether such taxes, fees or costs if even
such costs or fees are ordinarily paid by Landlord.
(i) CAPTIONS. The captions of the several Sections and
subsection of this Lease and table of contents are not a part of the context
hereof and shall be ignored in construing this Lease. They are intended only as
aids in locating various provisions hereof.
(j) SUCCESSORS AND ASSIGNS. Except as may be expressly
otherwise provided herein, the terms, covenants and conditions hereof shall
inure to the benefit of and shall be binding upon Landlord and its successors
and assigns and the terms, covenants and conditions
hereof shall inure to the benefit of and shall be binding upon Tenant and its
successors and permitted assigns.
(k) NO MERGER. There shall be no merger of this Lease, or the
leasehold estate created by this Lease, with any other estate or interest in the
Leased Premises, or any part thereof, by reason of the fact that the same
person, firm, corporation or other entity may acquire or own or hold, directly
or indirectly, (i) this Lease or the leasehold estate created by this Lease, or
any interest in this Lease or in any such leasehold estate, and (ii) any such
other estate or interest in the Leased Premises or any part thereof; and no such
merger shall occur unless and until all persons, corporations, firms and other
entities having an interest (including a security interest) in (i) this Lease or
the leasehold estate created by this Lease; and (ii) any such other estate or
interest in the Leased Premises, or any part thereof, shall join a written
instrument effecting such merger and shall duly record the same.
(l) OWNERSHIP OF LEASED PREMISES. Tenant acknowledged that the
Leased Premises are the property of Landlord and that Tenant has only the right
to the possession and use thereof upon the terms, covenants and conditions set
forth in this Lease.
(m) ENCROACHMENTS, RESTRICTIONS, ETC. If any of the
Improvements shall, at any time, encroach upon any property, street or right of
way adjoining or adjacent to the Leased Premises, or shall violate the
agreements or conditions contained in any restrictive covenant or other
agreement affecting the Leased Premises, or any part thereof, or shall hinder or
obstruct any easement or right-of-way to which the Leased Premises are subject,
or shall impair the rights of others under such easement or right-of-way, then
promptly upon the request of the Landlord at the behest of any persons affected
by any such encroachment, violation, hindrance, obstruction or impairment,
Tenant shall, at its cost and expense, either (i) obtain valid and effective
waivers or settlements of all claims, liabilities and damages resulting from
each such encroachment, violation, hindrance, obstruction or impairment, whether
the same shall affect Landlord or Tenant, or (ii) make such changes in the
Improvements and take such other actions as shall be necessary to remove such
encroachments, hindrances or obstructions and to end such violations or
impairments, including, if necessary, but only with Landlord's prior written
consent, the alteration or removal of any of the Improvements. Any such
alteration or removal consented to by Landlord shall be made by Tenant in
accordance with the requirements of Section 9, above. Tenant's obligations under
this subsection 32(o) shall survive the expiration or sooner termination of this
Lease.
(n) ACCEPTANCE OF SURRENDER. No surrender to Landlord of this
Lease or of the Leased Premises, or any part thereof, or of any interest
therein, shall be valid or effective unless agreed to and accepted in writing by
Landlord and consented to in writing by any and all Mortgagees and Superior
Lessors, and no act or omission by Landlord or any representative or agent of
Landlord, other than such a written acceptance by Landlord, consented to as
aforesaid, shall constitute an acceptance of any such surrender.
(o) CONSENT BY LANDLORD. Wherever in this Lease Landlord
agrees not to unreasonably withhold its consent or approval, or words of like
import, Tenant agrees that is shall not be unreasonable for Landlord to withhold
such consent or approval (i) if by granting such consent or approval Landlord
shall be in violation of any Mortgage affecting the Leased
Premises, and (ii) the holder of any such Mortgage shall not give its consent or
approval thereto where its consent or approval is required by the terms of its
Mortgage.
33. SECURITY DEPOSIT.
Tenant and Landlord hereby acknowledge that $62,110.00 which the Tenant
has previously deposited with Landlord as security for the faithful performance
and observance by Tenant of the terms, provisions and conditions of this Lease
shall continue as security. 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 the Minimum Rental and additional rent,
Landlord may use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of the Minimum Rental and
additional rent or any other sum as to which Tenant is in default or for any sum
which Landlord may expend or may be required to expend by reason of Tenant's
default in respect of any of the terms, covenants and conditions of this Lease,
including but not limited to, and 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 the terms, provisions, covenants and
conditions of this Lease, the security shall be returned to Tenant after the
date fixed as the end of the lease and after delivery of entire possession of
the Leased Premises to Landlord. In the event of a sale of the Land and
Improvements or leasing of the Improvements, 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 for the return of said security; and
it is agreed that the provision 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 not its successors or
assigns shall be bound by any such assignment, encumbrance, attempted assignment
or attempted encumbrance. In the event Landlord applies or retains any portion
or all of the security deposited, Tenant shall forthwith restore the amount so
applied or retained so that at all times the amount deposited shall be
$62,110.00.
34. LANDLORD'S RIGHT TO BUILD ADDITIONAL IMPROVEMENTS.
(a) Notwithstanding any other provisions of this Lease, the
Landlord reserves the right to construct additional Improvements on the Land
forming part of the. Leased Premises and shall have the right to do so in
Landlord's sole and absolute discretion and reserves the right to rent such
additional Improvements to the Tenant or such other third parties or otherwise
utilize all as Landlord may determine in its sole and absolute discretion. In
connection with the construction of any such additional Improvements, Tenant
shall afford to the Landlord and its workmen, license to enter upon the Leased
Premises for the purpose of doing such work as the Landlord deems necessary to
complete the additional Improvements all without any claim for damages or
indemnity against the Landlord, or diminution or abatement in rent for any
reason including claims for partial eviction. Furthermore, there shall be no
liability on the part of the Landlord by reason of inconvenience, annoyance or
injury to business arising out of the Landlord making such additional
Improvements. After completion of any such additional Improvements, Landlord or
any such other authorized occupant thereof shall have the right to enter and
fully utilize such premises and shall have access to adequate parking on the
Leased Premises as Landlord may determine in its sole and absolute discretion.
(b) (i) For the purposes of this Section, the term "Right of
First Refusal Space" shall mean all or any part of the additional Improvements,
if and to the extent such space is improved in whole or in part by the Landlord
and becomes available for rent by Landlord.
(ii) In the event Landlord intends to lease any Right
of First Refusal Space, Landlord shall notify Tenant of the availability or
anticipated availability of such Space ("Landlord's Notice") and Landlord shall
also advice Tenant of the then current fair market rental value of such space,
which shall be based upon the rental rates most recently charged by Landlord for
comparable space for a comparable term to the extent same is available, setting
forth and taking into account base periods for escalations. Tenant shall
thereafter have thirty (30) days from the date of Landlord's Notice to notify
Landlord if it shall desire to lease such Right of First Refusal Space
("Tenant's Response"), the time of notification to be of the essence. In the
event Tenant elects to lease the Right of First Refusal Space, Landlord and
Tenant shall execute a new lease for such space, upon the same terms and
conditions as are contained in this Lease except that (i) the Right of First
Refusal Space shall be delivered in its then "as is" condition, and (ii) the
Rent shall mean the higher of the (a) then current rental per rentable square
foot payable by Tenant pursuant to this Lease (with adjustment) multiplied by
the number of square feet in the Right of First Refusal Space or (b) the fair
market rental value of the Right of First Refusal Space as determined by
Landlord as hereinabove provided. Landlord shall calculate the number of
rentable square feet contained in any Right of First Refusal Space in the same
manner that it presently calculates the number of rentable square feet.
Notwithstanding the foregoing, at the option of either Landlord or Tenant,
Landlord and Tenant shall, in lieu of executing a new lease, amend this Lease to
add such Right of First Refusal Space upon the terms set forth herein.
(iii) If any Right of First Refusal Space has been
offered to Tenant and Tenant either (i) indicates to Landlord that it does not
desire to rent such Right of First Refusal Space, or (ii) fails to deliver
Tenant's Response within the period hereinabove set forth, Tenant shall have no
further rights to lease such Right of First Refusal Space.
(iv) The rent for any Right of First Refusal Space
accepted by Tenant shall commence immediately upon the date of delivery of
vacant possession of such space to Tenant.
(c) If and when the Landlord completes the additional
Improvements and Tenant fails or refuses to exercise its rights to utilize the
Right of First Refusal Space, the Landlord agrees that the obligations of the
Tenant to pay for Impositions shall be reduced to an amount equal to the amount
of Impositions multiplied by a fraction (the "Tenant's Pro Rata Share") when the
numerator equals 43,000 and the denominator equals the sum of 43,000 plus the
square footage comprising the additional Improvements. Furthermore, the Tenant
agrees that it's use of the unimproved areas of the Leased Premises shall be
limited to Tenant's Pro Rata Share, as determined by Landlord in Landlord's sole
and absolute discretion.
35. NO BROKER.
Each of the parties represent to each other that no broker brought
about this Lease and the Tenant indemnifies the Landlord and hold Landlord
harmless from and against any claim made
by any broker or person for compensation or commission due or allegedly due in
connection with this transaction.
36. DEFINITIONS.
For the purposes of this Lease, the following definitions shall be
applicable:
EVENT OF DEFAULT - as defined in Section 19.
GUARANTEE - any agreements or undertakings, written or otherwise, by
virtue of which any Guarantors guaranty the performance or observance of any or
all of the terms, covenants or conditions to be performed or observed by Tenant
under this Lease.
GUARANTOR - any persons, firms or entities who or which guaranty the
performance or observance of any or all of the terms, covenants or conditions to
be performed or observed by observed by Tenant under this Lease.
IMPOSITIONS - as defined in Section 5(b).
IMPROVEMENTS - as defined in Section 1.
LANDLORD - as defined in Section 24.
LAWS - as defined in Section 2.
LEASE YEAR - Any twelve (12) month period during the term of this Lease
commencing on the first day of the first full calendar month of the term of this
Lease.
LEASED PREMISES - as defined in Section 1.
MAXIMUM RATE - an annual rate of interest equal to the Prime Rate plus
two (2%) percent but in no event in excess of the maximum lawful rate permitted
to be charged by a Landlord against a defaulting Tenant for monies advanced by
reasons of Tenant's default.
MINIMUM RENTAL - as defined in Section 3.
MORTGAGE - any Mortgage, deed of trust or other security interest now
existing or hereafter created on all or any portion of Landlord's interest in
this Lease and/or the Leased Premises.
MORTGAGEE - the holder of any Mortgage.
NET AWARD - as defined in Section 12(e).
PERSON-PERSONS - any individual (s), partnership(s), firm(s),
corporation(s), business trust(s), estate(s), legal representative(s) or other
entities of any nature or description whatsoever.
PLANS AND SPECIFICATION - as defined in Section 9(a) (iv).
PRIME RATE - the highest Prime Rate being published at the time in
question by The Wall Street Journal, Eastern Edition.
SUCCESSOR LANDLORD - as defined in Section 14(c).
SUPERIOR LEASE - any lease of all or any portions of the Leased
Premises made by and between any persons, firms or entities, as lessor, and any
Landlord hereunder, as lessee.
SUPERIOR LESSOR - the Lessor under any Superior Lease.
TAKING DATE - as defined in Section 12(a).
TENANTS CHANGE(S) - as defined in Section 9(a).
TENANT'S PROPERTY - as defined in Section 13.
37. TENANT REPRESENTATIONS.
(a) Tenant is a corporation, duly formed, validly existing and
in good standing under the laws of the State of New York. Tenant has all
requisite power and authority to own and operate its properties, to carry on its
business as now conducted and proposed to be conducted, and to execute, deliver
and perform this Lease. Tenant and any Guarantor are now able to meet their
respective debts as they mature, the fair market value of their respective
assets exceeds their respective liabilities and no bankruptcy or insolvency
proceedings are pending against or by or contemplated by the Landlord or any
Guarantor. The Tenant and any Guarantor are, to the best of their knowledge, not
in default, nor have either of them received any notice of any uncured default,
under the terms of any instrument evidencing or securing any indebtedness of the
Tenant or any Guarantor, respectively, and there has, to be best of their
knowledge,. occurred not event, which, if uncured or uncorrected would
constitute a default under any such instrument upon notice or lapse of time or
both; provided, however, that with respect to the Guarantor any such default
referred to herein shall not be a material default affecting the ability of the
Guarantor to comply with its obligations under the Guaranty. All reports,
statements and other data furnished by the Tenant and any Guarantor to the
Landlord in connection with the Lease are true, correct and complete in all
material respects and do not omit to state any fact or circumstance necessary to
make the statements contained therein not misleading. This Lease and Guaranty
are valid and binding obligations enforceable in accordance with their
respective terms.
(b) Tenant will at all times maintain, preserve and keep in
full force and effect its existence, good standing, franchises, rights and
privileges as an entity under the laws of the State of New York and Mortgagor's
right to lease and operate the Leased Premises and to transact business in New
York.
38. AMENDED AND RESTATED LEASE.
As of the date hereof, this Lease shall amend and restate in its
entirety the terms and conditions of the certain lease originally entered into
as of the 20th day of December, 1989 by and between Landlord and Tenant's
predecessor-in-interest Enzolabs, Inc., and as subsequently amended by a First
Amendment to Lease dated February 1991, a Second Amendment to Lease dated
January 1, 1993 and a Third Amendment to Lease
dated January 1, 2000 (collectively, the "ORIGINAL LEASE"), shall supersede, in
all respects, the terms and conditions of the Original Lease, and this Lease
alone shall govern the rights and obligations of the parties with respect to the
Leased Premises.
SIGNATURES ON FOLLOWING PAGE
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument under seal as of the day and year first above written.
LANDLORD:
PARI MANAGEMENT CORPORATION
By:
-----------------------------
TENANT:
ENZO CLINICAL LABS, INC.
By:
-----------------------------
EXHIBIT "A"
DESCRIPTION
-----------
ALL of that certain parcel or parcels of land and the buildings and
improvements thereon known and numbered as 60 Executive Boulevard, Farmingdale.
SCHEDULE 1
1. The Minimum Rental during the term of this Lease is
$1,161,000.00 per annum payable in monthly installments of $96,750.00 for the
period beginning on April 1, 2005.
2. The Minimum Rental reserved in this Lease and payable
hereunder shall be adjusted annually on April 1st of each year.
The adjustment for each year shall be equal to the greater of the
amounts described in paragraphs A and B below (subject to paragraph 3 below) but
in no event shall the adjustment in any given year exceed 3% over the
immediately prior year:
A. (a) Definitions: For the purposes of this Schedule, the
following definitions shall apply:
(i) The term "Base Year" shall mean April 1, 2005
through March 31, 2006.
(ii) The term "Price Index" shall mean "The Consumer
Price Index (All Urban Consumers, New York, N.Y. Northeastern N.J., Long Island)
issued by the Bureau of Labor Statistics of the United States Department of
Labor.
(iii) The term "Price Index for the Base Year" shall
mean the average of the monthly
All Items Price Indexes for each of the 12 months of the Base Year.
(b) Effective as of each April subsequent to the Base Year,
there shall be made a cost of living adjustment of the Minimum Rental payable
hereunder. The annual adjustment shall be based on the percentage difference
between the Price Index for the preceding month of March and the Price Index for
the Base Year. In the event the Price Index for March in any calendar year
during the term of this Lease reflects an increase over the Price Index for the
Base Year, then $1,161,000.00 shall be multiplied by the percentage difference
between the Price Index for the immediately preceding March and the Price Index
for the Base Year and the
resulting sum shall be added to $1,161,000.00 effective as of such April 1st.
Said adjusted Minimum Rental shall thereafter be payable hereunder in equal
monthly installments until it is readjusted pursuant to the terms of the Lease.
The following illustrates the intentions of the parties hereto as to
the computations of the aforementioned cost of living adjustment in the annual
rent payable hereunder:
Assuming that said fixed annual rent is $10,000.00 that the Price Index
for the Base Year was 102.0 and that the Price Index for the month of March in a
calendar year following the Base Year was 105.0, then the percentage increase
thus reflected, i.e., 2.941% (3.0/102.0) would be multiplied by $10,000.00 and
said fixed annual rent would be increased by $294.10 effective as of April 1st
of said calendar year.
In the event that the Price Index ceases to use 1982-1984 as the basis
of calculation or if a substantial change is made in the terms or number of
items contained in the Price Index, then the Price Index shall be adjusted to
the figure that would have been arrived at had the manner of computing the Price
Index in effect at the date of this Lease not been altered. In the event such
Price Index (or a successor or substitute index) is not available, the Landlord
shall select a reliable governmental or other nonpartisan publication evaluating
the information theretofore used in determining the Price Index which shall be
used.
No adjustments or recomputations, retroactive or otherwise, shall be
made due to any revision which may later be made in the first published figure
for any month.
(c) Landlord will cause statements of the cost of living
adjustments provided for in subdivision (b) to be prepared in reasonable detail
and delivered to Tenant.
(d) In no event shall the Minimum Rental originally provided
to be paid under this Lease (exclusive of the adjustments under this Article) be
reduced, by virtue of this Schedule.
(e) Any delay or failure of Landlord, beyond April of any
year, in computing or billing for the rent adjustments hereinabove provided,
shall not constitute a waiver of or in any way impair the continuing obligation
of Tenant to pay such rent adjustments hereunder.
(f) Notwithstanding any expiration or termination of this
Lease prior to the Lease Termination Date (except in the case of a cancellation
by mutual agreement) Tenant's obligation to pay rent as adjusted under this
Schedule shall continue and shall cover all periods up to the Lease Termination
Date, and shall survive any expiration or termination of this Lease; or
B. The amount of the immediate prior years adjusted Minimum Rental
multiplied by 1.03.
3. In no event shall the adjustment from the immediate prior years'
adjusted Minimum Rent exceed 3%.