EXHIBIT 10.60
LEASE AGREEMENT
Agreement of Lease, made on this first day of August in the year 2001,
between BFS Realty, LLC, with an office at 00 Xxxxxx Xxxx Xxxxx, Xxxx
Xxxxxxxxxx, XX 00000, party of the first part, hereinafter referred to as OWNER,
and National Medical Health Card Systems, Inc., a New York corporation, with an
office at 00 Xxxxxx Xxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000, party of the
second part, hereinafter referred to as TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from
Owner approximately 26,567 square feet in the building known as 00 Xxxxxx Xxxx
Xxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 (the "Building") in the County of Nassau
for the term of ten (10 years) (or until such term shall sooner cease and expire
as hereinafter provided) to commence on the first day of August in the year
2001, and to end on the last day of July in the year 2011, and both dates
inclusive, at an annual rate of Three Hundred Thirty-six Thousand Seven Hundred
Eighty Dollars ($336,780.00) for the period from August 1, 2001 through July 31,
2002 and thereafter as provided in Rider B attached hereto and made a part
hereof which Tenant agrees to pay in lawful money of the United States which
shall be in legal tender in payment of all debts and dues, public and private,
at the time of payment, in equal monthly installments in advance on the first
day of each month during said term, at the office of the Owner or such other
place as Owner may designate, without any setoff or deduction whatsoever.
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder, and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent:
1. Tenant shall pay the rent as above and as hereinafter provided.
Occupancy:
2. Tenant shall use and occupy the demised premises for office space
provided such use is in accordance with the certificate of occupancy for the
building, if any, and for no other purpose.
Alterations:
3. Tenant shall make no changes in or to the prior written consent. Subject
to the prior written consent of the Owner, and to the provisions of this
article, Tenant, at Tenant's expense, may make alterations, installations,
additions or improvements which are non-structural and which do not affect
utility services or plumbing and electrical lines, in or to the interior of the
demised premises, using contractors or mechanics first approved in each instance
by Owner. Tenant shall, at its expense, before making any alterations,
additions, installations or improvements obtain all permits, approvals and
certificates required by any governmental or quasi-governmental bodies and (upon
completion) certificates of final approval thereof, and shall deliver promptly
duplicates of all such permits, approvals and certificates to Owner. Tenant
agrees to carry, and will cause Tenant's contractors and sub-contractors to
carry, such worker's compensation, general liability, personal and property
damage insurance as Owner may require. If any mechanic's lien is filed against
the demised premises, or the building of which the same forms a part, for work
claimed to have been done for, or materials furnished to, Tenant, whether or not
done pursuant to this article, the same shall be discharged by Tenant within
thirty (30) days thereafter, at Tenant's expense, Tenant taking all necessary
legal steps, including the filing of such bonds as may be set by any Court, to
remove the mechanic's lien. All fixtures and all paneling, partitions, railings
and like installations, installed in the demised premises at any time, either by
Tenant or by Owner on Tenant's behalf, shall, upon installation, become the
property of Owner and shall remain upon and be surrendered with the demised
premises unless Owner, by notice to Tenant no later than twenty (20) days prior
to the date fixed as the termination of this lease, elects to relinquish Owner's
right thereto and to have them removed by Tenant, in which event the same shall
be removed from the demised premises by Tenant prior to the expiration of the
lease, at Tenant's expense. Nothing in this article shall be construed to give
Owner title to, or to prevent Tenant's removal of, trade fixtures, moveable
office furniture and equipment, but upon removal of same from the demised
premises, or upon removal of other installations as may be required by Owner,
Tenant shall immediately, and at its expense, repair and restore the demised
premises to the condition existing prior to any such installations, and repair
any damage to the demised premises or the building due to such removal. All
property permitted or required to be removed by Tenant at the end of the term
remaining in the demised premises after Tenant's removal shall be deemed
abandoned and may, at the election of Owner, either be retained as property or
removed from the demised premises by Owner, at Tenant's expense.
Repairs:
4. See Rider C.
Window Cleaning:
5. Tenant will not clean nor require, permit, suffer or allow any window in
the demised premises to be cleaned from the outside in violation of Section 202
of the New York State Labor Law or any other applicable law, or the Rules of the
Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
Requirements of Law, Fire Insurance, Floor Loads:
6. Prior to the commencement of the lease term, if Tenant is then in
possession, and at all times thereafter, Tenant shall, at Tenant's sole cost and
expense, promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer pursuant to law,
and all orders, rules and regulations of the New York Board of Fire
Underwriters, Insurance Services Office, or any similar body which shall impose
any violation, order or duty upon Owner or Tenant with respect to the demised
premises, whether or not arising out of Tenant's use or manner of use of the
demised premises of the building (including the use permitted under the lease).
Except as provided in Article 30 hereof, nothing herein shall require Tenant to
make structural repairs or alterations unless Tenant has, by its manner of use
of the demised premises or method of operation therein, violated any such laws,
ordinances, orders, rules, regulations or requirements with respect thereto.
Tenant shall not do or permit any act or thing to be done in or to the demised
premises which is contrary to law, or which will invalidate or be in conflict
with public liability, fire or other policies of insurance at any time carried
by or for the benefit of Owner. Tenant shall not keep anything in the demised
premises except as now or hereafter permitted by the Fire Department, Board of
Fire Underwriters, Fire Insurance Rating Organization and other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
demised premises in a manner which will increase the insurance rate for the
building or any property located therein over that in effect prior to the
commencement of Tenant's occupancy. If by reason of the failure to comply with
the foregoing the fire insurance rate shall, at the beginning of this lease or
at any time thereafter, be higher than it otherwise would be, then Tenant shall
reimburse Owner, as additional rent hereunder, for that portion of all fire
insurance charged because of such failure by Tenant. In any action or proceeding
wherein Owner and Tenant are parties, a schedule or "make-up" or rate for the
building or demised premises issued by a body making fire insurance rates
applicable to said premises shall be conclusive evidence of the facts therein
stated and of the several items and charges in the fire insurance rates then
applicable to said premises. Tenant shall not place a load upon any floor of the
demised premises exceeding the floor load per square foot area which it was
designed to carry and which is allowed by law. Owner reserves the right to
prescribe the weight and position of all safes, business machines and mechanical
equipment. Such installations shall be placed and maintained by Tenant, at
Tenant's expense, in settings sufficient, in Owner's judgment, to absorb and
prevent vibration, noise and annoyance.
Subordination:
7. This lease is subject and subordinate to all ground or underlying leases
and to all mortgages which may now or hereafter affect such leases or the real
property of which the demised premises are a part, and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument or subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall form time to time execute promptly any certificate that Owner may
request.
Tenant's Liability Insurance Property Loss, Damage, Indemnity:
8. Owner or its agents shall not be liable for any damage to property of
Tenant or of others entrusted to employees of the building, nor for loss of, or
damage to, any property of Tenant by theft or otherwise, nor for any injury or
damage to persons or property resulting from any cause of whatsoever nature,
unless caused by, or due to, the negligence of Owner, its agents, servants, or
employees; Owner or its agents shall not be liable for any damage caused by
other tenants or persons in, upon or about said building or caused by operations
in connection of any private, public or quasi public work. If at any time any
windows of the demised premises are temporarily closed, darkened or bricked up
(or permanently closed, darkened or bricked up, if required by law) for any
reason whatsoever including, but not limited to, Owner's own acts, Owner shall
not be liable for any damage Tenant may sustain nor abatement or diminution of
rent, nor shall the same release Tenant from its obligations hereunder nor
constitute an eviction. Tenant shall indemnify and save harmless Owner against
and from all liabilities, obligations, damages, penalties, claims, costs and
expenses for which Owner shall not be reimbursed by insurance, including
reasonable attorney's fees, paid, suffered or incurred as a result of any breach
by Tenant, Tenant's agents, contractors, employees, invitees or licensees, of
any covenant or condition of this lease, or the carelessness, negligence or
improper conduct of Tenant, Tenant's agents, contractors, employees, invitees or
licensees. Tenant's liability under this lease extends to the acts and omissions
of any subtenant and any agent, contractor, employee, invitee or licensee of any
subtenant. In case any action or proceeding is brought against Owner by reason
of any such claim, Tenant, upon written notice from Owner, will, at Tenant's
expense, resist or defend such action or proceeding by counsel approved by Owner
in writing, such approval not to be unreasonably withheld.
Destruction, Fire and Other Casualty:
9. (a) If the demised premises or any part thereof shall be damaged by fire
or other casualty, Tenant shall give immediate notice to Owner and this lease
shall continue in full force and effect except as hereinafter set forth. (b) If
the demised premises are partially damaged or rendered partially unusable by
fire or other casualty, the damages thereto shall be repaired by, and at the
expense of, Owner, and the Rent and other items of additional rent, until such
repair shall be substantially completed, shall be apportioned from the day
following the casualty according to the part of the demised premises which is
usable. (c) If the demised premises are totally damaged or rendered wholly
unusable by fire or other casualty, then the rent and other items of additional
rent as hereinafter expressly provided shall be proportionately paid up to the
time of the casualty and thenceforth shall cease until the date when the demised
premises shall have been repaired and restored by Owner (or sooner reoccupied in
part by Tenant then rent shall be apportioned as provided in subsection (b)
above), subject to Owner's right to elect not to restore the same as hereinafter
provided. (d) If the demised premises are rendered wholly unusable or (whether
or not the demised premises are damaged in whole or in part) if the building
shall be so damaged that Owner shall decide to demolish it or to rebuild it,
then, in any of such events, Owner may elect to terminate this lease by written
notice to Tenant, given within ninety (90) days after such fire or casualty, or
thirty (30) days after adjustment of the insurance claim for such fire or
casualty, whichever is sooner, specifying a date for the expiration of the
lease, which date shall not be more than sixty (60) days after the giving of
such notice, and upon the date specified in such notice the term of this lease
shall expire as fully and completely as if such date were the date set forth
above for the termination of this lease, and Tenant shall forthwith quit,
surrender and vacate the demised premises without prejudice however, to Owner's
rights and remedies against Tenant under the lease provisions in effect prior to
such termination, and any rent owing shall be paid up to such date, and any
payments of rent made by Tenant which were on account of any period subsequent
to such date shall be returned to Tenant. Unless Owner shall serve a termination
notice as provided herein, Owner shall make the repairs and restorations under
the conditions of (b) and (c) hereof, with all reasonable expedition, subject
the delays due to adjustment of insurance claims, labor troubles and causes
beyond Owner's control. After any such casualty, Tenant shall cooperate with
Owner's restoration by removing from the demised premises as promptly as
reasonably possible, all of Tenant's salvageable inventory and movable
equipment, furniture, and other property. Tenant's liability for rent shall
resume five (5) days after written notice from Owner that the demised premises
are substantially ready for Tenant's occupancy. (e) Nothing contained
hereinabove shall relieve Tenant from liability that may exist as a result of
damage from fire or other casualty. Notwithstanding the foregoing, including
Owner's obligation to restore under subparagraph (b) above, each party shall
look first to any insurance in its favor before making any claim against the
other party for recovery for loss or damage resulting from fire or other
casualty, and to the extent that such insurance is in force and collectible, and
to the extent permitted by law, Owner and Tenant each hereby releases and waives
all right of recovery with respect to subparagraphs (b), (d) and (e) above,
against the other or any one claiming through or under each of them by way of
subrogation or otherwise. The release and waiver herein referred to shall be
deemed to include any loss or damage to the demised premises and/or to any
personal property, equipment, trade fixtures, goods and merchandise located
therein. The foregoing release and waiver shall be in force only if both
releasor's insurance policies contain a clause providing that such a lease or
waiver shall not invalidate the insurance. If, and to the extent, that such
waiver can be obtained only by the payment of additional premiums, then the
party benefiting from the waiver shall pay such premium within ten (10) days
after written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions
hereof with respect to waiver of subrogation. Tenant acknowledges that Owner
will not carry insurance on Tenant's furniture and/or furnishings or any
fixtures or equipment, improvements, or appurtenances removable by Tenant, and
agrees that Owner will not be obligated to repair any damage thereto or replace
the same. (f) Tenant hereby waives the provisions of Section 227 of the Real
Property Law and agrees that the provision of this article shall govern and
control in lieu thereof.
Eminent Domain:
10. See Rider A.
Assignment, Mortgage, Etc.:
11. Subject to Article A-22 hereof, Tenant, for itself, its heirs,
distributees, executors, administrators, legal representatives, successors and
assigns, expressly covenants that it shall not assign, mortgage or encumber this
agreement, nor underlet, or suffer or permit the demised premises or any part
thereof to be used by others, without the prior written consent of Owner in each
instance. Transfer of the majority of the stock of a corporate Tenant or the
majority partnership interest of a partnership Tenant shall be deemed an
assignment. If this lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than Tenant, Owner may, after
default by Tenant, collect rent from the assignee, undertenant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, undertenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting.
Electric Current:
12. Tenant covenants and agrees that at all times its use of electric
current shall not exceed the capacity of existing feeders to the building or the
risers or wiring installation, and Tenant may not use any electrical equipment
which, in Owner's opinion, reasonably exercised, will overload such
installations or interfere with the use thereof by other tenants of the
building. The change at any time of the character of electric service shall in
no wise make Owner liable or responsible to Tenant, for any loss, damages or
expenses which Tenant may sustain.
Access to Premises:
13. Owner or Owner's agents shall have the right (but shall not be
obligated) to enter the demised premises in any emergency at any time, and, at
other reasonable times, to examine the same and to make such repairs,
replacements and improvements as Owner may deem necessary and reasonably
desirable to any portion of the building, or which Owner may elect to perform in
the demised premises after Tenant's failure to make repairs, or perform any work
which Tenant is obligated to perform under this lease, or for the purpose of
complying with laws, regulations and other directions of governmental
authorities. Tenant shall permit Owner to use, maintain and replace pipes and
conduits in and through the demised premises, and to erect new pipes and
conduits therein provided, wherever possible, they are within walls or otherwise
concealed. Owner may, during the progress of any work in the demised premises,
take all necessary materials and equipment into said premises without the same
constituting an eviction, nor shall Tenant be entitled to any abatement of rent
while such work is in progress, nor to any damages by reason of loss or
interruption of business or otherwise. Throughout the term hereof Owner shall
have the right to enter the demised premises at reasonable hours for the purpose
of showing the same to prospective purchasers or mortgagees of the building, and
during the last six (6) months of the term for the purpose of showing the same
to prospective tenants, and may, during said six (6) months period, place upon
the demised premises the usual notices "To Let" and "For Sale" which notices
Tenant shall permit to remain thereon without molestation. If Tenant is not
present to open and permit an entry into the demised premises, Owner or Owner's
agents may enter the same whenever such entry may be necessary or permissible by
master key or forcibly, and provided reasonable care is exercised to safeguard
Tenant's property, such entry shall not render Owner or its agents liable
therefor, nor in any event shall the obligations of Tenant hereunder be
affected. If during the last month of the term Tenant shall have removed all or
substantially all of Tenant's property therefrom, Owner may immediately enter,
alter, renovate or redecorate the demised premises without limitation or
abatement of rent, or incurring liability to Tenant for any compensation, and
such act shall have no effect on this lease or Tenant's obligation hereunder.
Vault, Vault Space, Area:
14. No vaults, vault space or area, whether or not enclosed or covered, not
within the property line of the building is leased hereunder, anything contained
in or indicated on any sketch, blueprint or plan, or anything contained
elsewhere in this lease to the contrary notwithstanding. Owner makes no
representation as to the location of the property line of the building. All
vaults and vault space and all such areas not within the property line of the
building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any federal,
state or municipal authority or public authority, Owner shall not be subject to
any liability, nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant, if used by Tenant,
whether or not specifically leased hereunder.
Occupancy:
15. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part. Tenant has inspected the demised premises and
accepts them as is, subject to the riders annexed hereto with respect to Owner's
work, if any. In any event, Owner makes no representation as to the condition of
the demised premises and Tenant agrees to accept the same subject to violations,
whether or not of record. If any governmental license or permit shall be
required for the proper and lawful conduct of Tenant's business, Tenant shall be
responsible for, and shall procure and maintain, such license or permit.
Bankruptcy:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding,
this lease may be cancelled by Owner by sending a written notice to Tenant
within a reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of any
state naming Tenant as a debtor; or (2) the making by Tenant of an assignment of
any other arrangement for the benefit of creditors under any state statute.
Neither Tenant nor any person claiming through or under Tenant, or by reason of
any statute or order of court, shall thereafter be entitled to possession of the
premises demised, but shall forthwith quit and surrender the demised premises.
If this lease shall be assigned in accordance with its terms, the provisions of
this Article 16 shall be applicable only to the party then owing Tenant's
interest in this lease. (b) It is stipulated and agreed that in the event of the
termination of this lease pursuant to (a) hereof, Owner shall forthwith,
notwithstanding any other provisions of this lease to the contrary, be entitled
to recover from Tenant, as and for liquidated damages, an amount equal to the
difference between the rental reserved hereunder for the unexpired portion of
the term demised and the fair and reasonable rental value of the demised
premises for the same period. In the computation of such damages the difference
between any installment of rent becoming due hereunder after the date of
termination and the fair and reasonable rental value of the demised premises for
the period for which such installment was payable shall be discounted to the
date of termination at the rate of four percent (4%) per annum. If the demised
premises or any part thereof be relet by Owner for the unexpired term of said
lease, or any part thereof, before presentation of proof of such liquidated
damages to any court, commission or tribunal, the amount of rent reserved upon
such reletting shall be deemed to be the fair and reasonable rental value for
the part or the whole of the demised premises so re-let during the term of the
re-letting. Nothing herein contained shall limit or prejudice the right of the
Owner to prove for and obtain as liquidated damages by reason of such
termination, an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which, such
damages are proved, whether or not such amount be greater, equal to, or less
than the amount of the difference referred to above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this lease
for the payment of rent or additional rent; or if the demised premises becomes
vacant or deserted, or if this lease be rejected under ss.365 of Title 11 of the
U.S. Code (Bankruptcy Code); or if any execution or attachment shall be issued
against Tenant or any of Tenant's property whereupon the demised premises shall
be taken or occupied by someone other than Tenant; or if Tenant shall be in
default with respect to any other lease between Owner and Tenant; or if Tenant
shall have failed, after five (5) days written notice, to redeposit with Owner
any portion of the security deposited hereunder which Owner has applied to the
payment of any rent and additional rent due and payable hereunder; or if Tenant
fails to move into or take possession of the demised premises within thirty (30)
days after the commencement of the term of this lease, of which fact Owner shall
be the sole judge; then in any one or more of such events, upon Owner serving a
written fifteen (15) days notice upon Tenant specifying the nature of said
default, and upon the expiration of said fifteen (15) days, if Tenant shall have
failed to comply with or remedy such default, or if the said default or omission
complained of shall be of a nature that the same cannot be completely cured or
remedied within said fifteen (15) day period, and if Tenant shall not have
diligently commenced during such default within such fifteen (15) day period,
and shall not thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default, then Owner may serve a written five (5) days notice
of cancellation of this lease upon Tenant, and upon the expiration of said five
(5) days this lease and the term thereunder shall end and expire as fully and
completely as if the expiration of such five (5) day period were the day herein
definitely fixed for the end and expiration of this lease and the term thereof,
and Tenant shall then quit and surrender the demised premises to Owner, but
Tenant shall remain liable as hereinafter provided. (2) If the notice provided
for in (1) herein shall have been given, and the term shall expire as aforesaid;
or if Tenant shall be in default in the payment of the rent reserved herein or
any item of additional rent herein mentioned, or any part of either, or in
making any other payment herein required; then, and in any of such events, Owner
may without notice, re-enter the demised premises either by force or otherwise,
and dispossess Tenant by summary proceedings or otherwise, and the legal
representative of Tenant or other occupant of the demised premises, and remove
their effects and hold the demised premises as if this lease had not been made,
and Tenant hereby waives the service of notice of intention to re-enter or to
institute legal proceedings to that end. If Tenant shall make default hereunder
prior to the date fixed as the commencement of any renewal or extension of this
lease, Owner may cancel and terminate such renewal or extension agreement by
written notice.
Remedies of Owner and Waiver of Redemption:
18. In case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or otherwise, (a) the rent, and additional rent, shall
become due thereupon and be paid up to the time of such re-entry, dispossess
and/or expiration, (b) Owner may re-let the demised premises or any part or
parts thereof, either in the name of Owner or otherwise, for a term or terms,
which may at Owner's option be less than or exceed the period which would
otherwise have constituted the balance of the term of this lease, and may grant
concessions or free rent or charge a higher rental than that in this lease, (c)
Tenant or the legal representatives of Tenant shall also pay to Owner as
liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between the rent hereby
reserved and or covenanted to be paid and the net amount, if any, of the rents
collected on account of the subsequent lease or leases of the demises premises
for each month of the period which would otherwise have constituted the balance
of the term of this lease. The failure of Owner to re-let the demised premises
or any part or parts thereof shall not release or affect Tenant's liability for
damages. In computing such liquidated damages there shall be added to the said
deficiency such expenses as Owner may incur in connection with re-letting, such
as legal expenses, reasonable attorneys' fees, brokerage, advertising, and for
keeping the demised premises in good order or for preparing the same for
re-letting. Any such liquidated damages shall be paid in monthly installments by
Tenant on the rent day specified in this lease, and any suit brought to collect
the amount of the deficiency for any month shall not prejudice in any way the
rights of Owner to collect the deficiency for any subsequent month by a similar
proceeding. Owner, in putting the demised premises in good order or preparing
the same for re-rental may, at Owner's option, make such alterations, repairs,
replacements, and/or decorations in the demised premises as Owner, in the
Owner's sole judgment, considers advisable and necessary for the purpose of
re-letting the demised premises, and the making of such alternations, repairs,
replacements, and/or decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. Owner shall in no event be liable
in any way whatsoever for failure to re-let the demised premises, or in the
event that the demised premises are re-let, for failure to collect the rent
thereof under such re-letting, and in no event shall Tenant be entitled to
receive any excess, if any, of such net rentals collected over the sums payable
by Tenant to Owner hereunder. In the event of a breach or threatened breach by
Tenant of any of the covenants or provisions hereof, Owner shall have the right
of injunction and the right to invoke any remedy allowed at law or in equity as
if re-entry, summary proceedings and other remedies were not herein provided
for. Mention in this lease of any particular remedy, shall not preclude Owner
from any other remedy, in law or in equity. Tenant hereby expressly waives any
and all rights of redemption granted by or under any present or future laws.
Fees and Expenses:
19. If Tenant shall default in the observance or performance of any term or
covenant on Tenant's part to be observed or performed under, or by virtue of,
any of the terms or provisions in any article of this lease, after notice if
required, and upon expiration of the applicable grace period, if any, (except in
an emergency), then, unless otherwise provided elsewhere in this lease, Owner
may immediately, or at any time thereafter, and without notice, perform the
obligation of Tenant thereunder. If Owner, in connection with the foregoing, or
in connection with any default by Tenant in the covenant to pay rent hereunder,
makes any expenditures or incurs any obligations for the payment of money,
including but not limited to reasonable attorneys' fees, in instituting,
prosecuting or defending any action or proceeding, and prevails in any such
action or proceeding, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Owner within ten (10) days of rendition of any xxxx
or statement to Tenant therefor. If Tenant's lease term shall have expired at
the time of the making of such expenditures or incurring of such obligations,
such sums shall be recoverable by Owner as damages.
Building Alterations and Management:
20. Owner shall have the right, at any time, without the same constituting
an eviction and without incurring liability to Tenant therefor, to change the
arrangement and or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building, and
to change the name, number or designation by which the building may be known.
There shall be no allowance to Tenant for diminution of rental value and no
liability on the part of Owner by reason of inconvenience, annoyance or injury
to business arising from Owner or other Tenant making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
any controls of the manner of access to the building by Tenant's social or
business visitors, as Owner may deem necessary, for the security of the building
and its occupants.
No Representations by Owner:
21. Neither Owner nor Owner's agents have made any representations or
promises with respect to the physical condition of the building, the land upon
which it is erected, the demised premises, the rents, leases, expenses of
operation, or any other matter or thing affecting or related to the demised
premises or the building, except as herein expressly set forth, and no rights,
easements or licenses are acquired by Tenant by implication or otherwise except
as expressly set forth in the provisions of this lease. Tenant has inspected the
building and the demised premises and is thoroughly acquainted with their
condition and agrees to take the same "as-is" on the date possession is
tendered, and acknowledges that the taking of possession of the demised premises
by Tenant shall be conclusive evidence that the said premises, and the building
of which the same form a part, were in good and satisfactory condition at the
time such possession was so taken, except as to latent defects. All
understandings and agreements heretofore made, between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreement between Owner and Tenant, and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
End of Term:
22. Upon the expiration or other termination of the term of this lease,
Tenant shall quit and surrender to Owner the demised premises, "broom-clean," in
good order and condition, ordinary wear and damages which Tenant is not required
to repair as provided elsewhere in this lease excepted, and Tenant shall remove
all its property from the demised premises. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of this
lease. If the last day of the term of this lease, or any renewal thereof, falls
on Sunday, this lease shall expire at noon on the preceding Saturday, unless it
be a legal holiday, in which case it shall expire at noon on the preceding
business day.
Quiet Enjoyment:
23. Owner covenants and agrees with Tenant that upon Tenant paying the rent
and additional rent and observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of this lease including, but not limited to, Article 34
hereof, and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
Failure to Give Possession:
24. If Owner is unable to give possession of the demised premises on the
date of the commencement of the term hereof because of the holding-over or
retention of possession of any tenant, undertenant or occupants, or if the
demised premises are located in a building being constructed, because such
building has not been sufficiently completed to make the premises ready for
occupancy or because of the fact that a certificate of occupancy has not been
procured, or if Owner has not completed any work required to be performed by
Owner, or for any other reason, Owner shall not be subject to any liability for
failure to give possession on said date and the validity of the lease shall not
be impaired under such circumstances, nor shall the same be construed in any
wise to extend the term of this lease, but the rent payable hereunder shall be
abated (provided Tenant is not responsible for Owner's inability to obtain
possession or complete any work required) until after Owner shall have given
Tenant notice that Owner is able to deliver possession in the condition required
by this lease. If permission is given to Tenant to enter into possession of the
demised premises, or to occupy the premises other than the demised premises,
prior to the date specified as the commencement of the term of this lease,
Tenant covenants and agrees that such possession and/or occupancy shall be
deemed to be under all the terms, covenants, conditions and provisions of this
lease, except the obligation to pay the fixed annual rent set forth in page one
of this lease. The provisions of this article are intended to constitute "an
express provision to the contrary" within the meaning of Section 223-a of the
New York Real Property Law.
No Waiver:
25. The failure of Owner to seek redress for violation of, or to insist
upon the strict performance of, any covenant or condition of this lease, or of
any of the Rules or Regulations, set forth or hereafter adopted by Owner, shall
not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation. The
receipt by Owner of rent with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach, and no provision of this
lease shall be deemed to have been waived by Owner unless such waiver be in
writing signed by Owner. No payment by Tenant, or receipt by Owner, of a lesser
amount than the monthly rent herein stipulated shall be deemed to be other than
on account of the earliest stipulated rent, nor shall any endorsement or
statement of any check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction, and Owner may accept such check or payment
without prejudice to Owner's right to recover the balance of such rent or pursue
any other remedy in this lease provided. All checks tendered to Owner as and for
the rent of the demises premises shall be deemed payments for the account of
Tenant. Acceptance by Owner of rent from anyone other than Tenant shall not be
deemed to operate as an attornment to Owner by the payor of such rent, or as a
consent by Owner to an assignment or subletting by Tenant of the demised
premises to such payor, or as a modification of the provisions of this lease. No
act or thing done by Owner or Owner's agents during the term hereby demised
shall be deemed an acceptance of a surrender of said premises, and no agreement
to accept such surrender shall be valid unless in writing signed by Owner. No
employee of Owner or Owner's agent shall have any power to accept the keys of
said premises prior to the termination of the lease, and the delivery of keys to
any such agent or employee shall not operate as a termination of the lease or a
surrender of the demised premises.
Waiver of Trial by Jury:
26. It is mutually agreed by and between Owner and Tenant that the
respective parties hereto shall, and they hereby do, waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other (except for personal injury or property damage) on any matters
whatsoever arising out of or in any way connected with this lease, the
relationship of Owner and Tenant, Tenant's use of or occupancy of the demised
premises, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Owner commences any proceeding or
action for possession, including a summary proceeding for possession of the
demised premises, Tenant will not interpose any counterclaim, of whatever nature
or description, in any such proceeding, including a counterclaim under Article
4, except for statutory mandatory counterclaims.
Inability to Perform:
27. This Lease and the obligation of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on part of Tenant to
be performed shall in no wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under the lease, or to supply, or is
delayed in supplying, any service expressly or impliedly to be supplied, or is
unable to make, or is delayed in making, any repairs, additions, alterations or
decorations, or is unable to supply, or is delayed in supplying, any equipment,
fixtures or other materials, if Owner is prevented or delayed from doing so by
reason of strike or labor troubles, or any cause whatsoever beyond Owner's sole
control including, but not limited to, government preemption or restrictions, or
by reason of any rule, order or regulation of any department or subdivision
thereof of any government agency, or by reason of the conditions which have been
or are affected, either directly or indirectly, by war or other emergency.
Bills and Notices:
28. Except as otherwise in this lease provided, a xxxx statement, notice or
communication which Owner may desire or be required to give to Tenant, shall be
deemed sufficiently given or rendered if, in writing, delivered to Tenant
personally, or sent by registered or certified mail addressed to Tenant at the
building of which the demised premises form a part, or at the last known
residence address or business address of Tenant, or left at any of the aforesaid
premises addressed to Tenant, and the time of the rendition of such xxxx or
statement and of the giving of such notice or communication shall be deemed to
be the time when the same is delivered to Tenant, mailed, or left at the
premises as herein provided. Any notice by Tenant to Owner must be served by
registered or certified mail addressed to Owner at the address first hereinabove
given, or at such other address as Owner shall designate by written notice.
Water Charges:
29. If Tenant requires, uses or consumes water for any purpose in addition
to ordinary lavatory purposes (of which Owner shall be the sole judge) Owner may
install a water meter and thereby measure Tenant's water consumption for all
purposes. Tenant shall pay Owner for the cost of the meter and the cost of the
installation. Throughout the duration of Tenant's occupancy, Tenant shall keep
said meter and installation equipment in good working order and repair at
Tenant's own cost and expense. In the event Tenant fails to maintain the meter
and installation equipment in good working order and repair (of which fact Owner
shall be the sole judge) Owner may cause such meter and equipment to be replaced
or repaired, and collect the cost thereof from Tenant as additional rent. Tenant
agrees to pay for water consumed, as shown on said meter as and when bills are
rendered, and in the event Tenant defaults in the making of such payment, Owner
may pay such charges and collect the same from Tenant as additional rent. Tenant
covenants and agrees to pay, as additional rent, the sewer rent, charge or any
other tax, rent or levy which now or hereafter is assessed, imposed or a lien
upon the demised premises, or the realty of which they are a part, pursuant to
any law, order or regulation made or issued in connection with the use,
consumption, maintenance or supply of water, the water system or sewage
connection or system. Independently of, and in addition to, any of the remedies
served to Owner hereinabove or elsewhere in this lease, Owner may xxx for and
collect any monies to be paid by Tenant, or paid by Owner, for any of the
reasons or purposes hereinabove set forth.
Sprinklers:
30. Anything elsewhere in this lease to the contrary notwithstanding, if
the New York Board of Fire Underwriters of the New York Fire Insurance Exchange
or any bureau, department or official of the federal, state or city government
recommend or require the installation of a sprinkler system, or that any
changes, modifications, alterations, or additional sprinkler heads or other
equipment be made or supplied in an existing sprinkler system by reason of
Tenant's business, the location of partitions, trade fixtures, or other contents
of the demised premises, or for any other reason, or if any such sprinkler
system installations, modifications, alterations, additional sprinkler heads or
other such equipment, become necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system in the fire insurance
rate set by said Exchange or any other body making fire insurance rates, or by
any fire insurance company, Tenant shall, at Tenant's expense, promptly make
such sprinkler system installations, changes, modifications, alterations, and
supply additional sprinkler heads or other equipment as required, whether the
work involved shall be structural or non-structural in nature. Tenant shall pay
to Owner as additional rent 50%, on the first day of each month during the term
of this lease of the contract price for the sprinkler supervisory service for
the Building.
Elevators, Heat, Cleaning:
31. Tenant shall, at Tenant's expense, keep the demised premises, including
the windows, clean and in order, to the reasonable satisfaction of Owner, and
for that purpose shall employ person or persons, or corporations approved by
Owner. Tenant shall pay to Owner the cost of removal of any of Tenant's refuse
and rubbish from the building. Bills for the same shall be rendered by Owner to
Tenant at such time as Owner may elect, and shall be due and payable hereunder,
and the amount of such bills shall be deemed to be, and be paid as additional
rent. Tenant shall, however, have the option of independently contracting for
the removal of such rubbish and refuse in the event that Tenant does not wish to
have same done by employees of Owner. Under such circumstances, however, the
removal of such refuse and rubbish by others shall be subject to such rules and
regulations as, in the judgment of Owner, are necessary for the proper operation
of the building. Owner reserves the right to stop service of the heating,
plumbing and electric systems, when necessary, by reason of accident or
emergency, or for repairs, alterations, replacements or improvements, which in
the judgment of Owner are desirable or necessary to be made, until said repairs,
alterations, replacements or improvements shall have been completed.
Security:
32. Tenant has deposited with Owner the sum of $98,227.13 as security for
the faithful performance and observance by Tenant of the terms, provisions and
conditions of this lease. It is agreed that in the event Tenant defaults in
respect to any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent, or any other sum as to
which Tenant is in default, or for any sum which Owner may expend, or may be
required to expend, by reason of Tenant's default in respect of any of the
terms, covenants and conditions of this lease, including but not limited to, any
damages or deficiency in the re-letting of the demised premises, whether such
damages or deficiency accrued before or after summary proceedings or other
re-entry by Owner. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this lease, the
security shall be returned to Tenant after the date fixed as the end of the
lease, and after delivery of entire possession of the demised premises to Owner.
In the event of a sale of the land and building or leasing of the building, of
which the demised premises form a part, Owner shall have the right to transfer
the security to the vendee or lessee, and Owner shall thereupon be released by
Tenant from all liability for the return of such security; and Tenant agrees to
look to the new Owner solely for the return of said security, and it is agreed
that the provisions hereof shall apply to every transfer or assignment made of
the security to a new Owner. Tenant further covenants that it will not assign or
encumber, or attempt to assign or encumber, the monies deposited herein as
security, and that neither Owner nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment, encumbrance, attempted
assignment or attempted encumbrance. See Section A-8.05 - A-8.06 (if included)
in Rider A, attached hereto.
Captions:
33. The Captions are inserted only as a matter of convenience and for
reference, and in no way define, limit or describe the scope of this lease nor
the intent of any provision thereof.
Definitions:
34. The term "Owner" as used in this lease means only the owner of the fee
or of the leasehold of the building, or the mortgagee in possession for the time
being, of the land and building (or the owner of a lease of the building or of
the land and building) of which the demised premises form a part, so that in the
event of any sale or sales of said land and building or of said lease, or in the
event of a lease of said building, or of the land and building, the said owner
shall be and hereby is entirely freed and relieved of all covenants and
obligations of Owner hereunder, and it shall be deemed and construed without
further agreement between the parties or their successors in interest, or
between the parties and the purchaser, at any such sale, or the said lessee of
the building, or of the land and building, that the purchaser or the lessee of
the building has assumed and agreed to carry out any and all covenants and
obligations of Owner hereunder. The words "re-enter" and "re-entry" as used in
this lease are not restricted to their technical legal meaning. The term "rent"
includes the annual rental rate whether so expressed or expressed in monthly
installments, and "additional rent." "Additional rent" means all sums which
shall be due to Owner from Tenant under this lease, in addition to the annual
rental rate. The term "business days" as used in this lease, shall exclude
Saturdays, Sundays and all days observed by the State or Federal Government as
legal holidays, and those designated as holidays by the applicable building
service union employees service contract, or by the applicable Operating
Engineers contract with respect to HVAC service. Wherever it is expressly
provided in this lease that consent shall not be unreasonably withheld, such
consent shall not be unreasonably delayed.
Adjacent Excavation-Shoring:
35. If an excavation shall be made upon land adjacent to the demised
premises, or shall be authorized to be made, Tenant shall afford to the person
causing or authorized to cause such excavation, a license to enter upon the
demised premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building, of which demised premises form a
part, from injury or damage, and to support the same by proper foundations,
without any claim for damages or indemnity against Owner, or diminution or
abatement of rent.
Rules and Regulations:
36. Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully, and comply strictly with, the Rules and
Regulations annexed hereto and such other and further reasonable Rules and
Regulations as Owner or Owner's agents may from time to time adopt. Notice of
any additional Rules or Regulations shall be given in such manner as Owner may
elect. In case Tenant disputes the reasonableness of any additional Rules or
Regulations hereafter made or adopted by Owner or Owner's agents, the parties
hereto agree to submit the question of the reasonableness of such Rules or
Regulations for decision to the New York office of the American Arbitration
Association, whose determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rules or
Regulations upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing, upon Owner, within fifteen (15)
days after the giving of notice thereof. Nothing in this lease contained shall
be construed to impose upon Owner any duty or obligation to enforce the Rules
and Regulations or terms, covenants, or conditions in any other lease, as
against any other tenant, and Owner shall not be liable to Tenant for violation
of the same by any other tenant, its servants, employees, agents, visitors or
licensees.
Glass:
37. Tenant shall replace, at the expense of Tenant, any and all plate and
other glass damaged or broken from any cause whatsoever in and about the demised
premises. Tenant shall insure, and keep insured, at Tenant's expense, all plate
and other glass in the demised premises for and in the name of Owner. Bills for
the premiums therefor shall be rendered by Owner to Tenant at such times as
Owner may elect, and shall be due from, and payable by, Tenant when rendered,
and the amount thereof shall be deemed to be, and be paid as, additional rent.
Estoppel Certificate:
38. Tenant, at any time, and from time to time, upon at least ten (10) days
prior notice by Owner, shall execute, acknowledge and deliver to Owner, and/or
to any other person, firm or corporation specified by Owner, a statement
certifying that this lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), stating the dates to which the rent and
additional rent have been paid, and stating whether or not there exists any
default by Owner under this lease and, if so, specifying each such default.
Directory Board Listing:
39. If, at the request of, and as accommodation to, Tenant, Owner shall
place upon the directory board in the lobby of the building, one or more names
of persons or entities other than Tenant, such directory board listing shall not
be construed as to the consent by Owner to an assignment or subletting by Tenant
to such person or entities.
Successors and Assigns:
40. The covenants, conditions and agreements contained in this lease shall
bind and inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns. Tenant shall look only to Owner's estate
and interest in the land and building for satisfaction of Tenant's remedies for
the collection of a judgment (or other judicial process) against Owner in the
event of any default by Owner hereunder, and no other property or assets of such
Owner (or any partner, member, officer or director thereof, disclosed or
undisclosed), shall be subject to levy, execution of other enforcement procedure
for the satisfaction of Tenant's remedies under, or with respect to, this lease,
the relationship of Owner and Tenant hereunder, or Tenant's use and occupancy of
the demised premises.
SEE RIDERS ANNEXED HERETO CONTAINING ADDITIONAL LEASE PARAGRAPHS.
In Witness Whereof, Owner and Tenant have respectively signed and sealed
this lease as of the day and year first above written.
Witness for Owner: BFS REALTY, LLC
-----------------------------
BY:__________________________[L.S.]
Witness for Tenant: NATIONAL MEDICAL HEALTH
CARD SYSTEMS,INC.
____________________________ BY:__________________________[L.S.]
ACKNOWLEDGEMENT
STATE OF NEW YORK )
:ss.:
COUNTY OF )
On the _____ day of ___________________ in the year __________, before me,
the undersigned, a Notary Public in and for said State, personally appeared
______________________________, personally known to be or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed this instrument.
NOTARY PUBLIC
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN
ACCORDANCE WITH ARTICLE 36.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by Tenant or used for any purpose other than for ingress or egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner, using elevators and passageways designated for such delivery
by Owner. There shall not be used in any space, or in the public hall of the
building, either by Tenant or by jobbers or others in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and
sideguards. If said premises are situated on the ground floor of the building,
Tenant shall further, at Tenant's expense, keep the sidewalk and curb in front
of said premises clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for
any purposes other than those for which they were designed or constructed, and
no sweepings, rubbish, rags, acids or other substances shall be deposited
therein, and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by Tenant, whether or not caused by
Tenant, its clerks, agents, employees or visitors.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the building; and Tenant shall not sweep or throw, or permit to be
swept or thrown, from the demised premises, any dirt or other substances into
any of the corridors of halls, elevators, or out of the doors or windows or
stairways of the building, and Tenant shall not use, keep or permit to be used
or kept, any foul or noxious gas or substance in the demised premises, or permit
or suffer the demised premises to be occupied or used in a manner offensive or
objectionable to Owner or other occupants of the buildings by reason of noise,
odors, and or vibrations, or interfere in any way, with other tenants or those
having business therein, nor shall any bicycles, vehicles, animals, fish, or
birds be kept in or about the building. Smoking or carrying lighted cigars or
cigarettes in the elevators of the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of the
demised premises or the building, or on the inside of the demised premises if
the same is visible from the outside of the demised premises, without the prior
written consent of Owner, except that the name of Tenant may appear on the
entrance door of the demised premises. In the event of the violation of the
foregoing by Tenant, Owner may remove same without any liability, and may charge
the expense incurred by such removal to Tenant. Interior signs on doors and
directory tablet shall be inscribed, painted or affixed for Tenant by Owner at
the expense of Tenant, and shall be of a size, color and style acceptable to
Owner.
6. Tenant shall not xxxx, paint, drill into, or in any way deface any part
of the demised premises or the building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior written
consent of Owner, and as Owner may direct. Tenant shall not lay linoleum, or
other similar floor covering, so that the same shall come in direct contact with
the floor of the demised premises, and, if linoleum or other similar floor
covering is desired to be used, an interlining of builder's deadening felt shall
be first affixed to the floor, by a paste or other material, soluble in water,
the use of cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by Tenant, nor shall any changes be made in existing locks or
mechanism thereof. Tenant must, upon the termination of his tenancy, restore to
Owner all keys of stores, offices and toilet rooms, either furnished to, or
otherwise procured by, Tenant, and in the event of the loss of any keys, so
furnished, Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of
any description shall be delivered to and removed from the demised premises only
on the freight elevators and through the service entrances and corridors, and
only during hours, and in a manner approved by Owner. Owner reserves the right
to inspect all freight to be brought into the building, and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease, of which these Rules and Regulations are a part.
9. Tenant shall not obtain for use upon the demised premises ice, drinking
water, towel and other similar services, or accept barbering or bootblacking
services in the demised premises, except from persons authorized by Owner, and
at hours and under regulations fixed by Owner. Canvassing, soliciting and
peddling in the building is prohibited and Tenant shall cooperate to prevent the
same.
10. Owner reserves the right to exclude from the building all persons who
do not present a pass to the building signed by Owner. Owner will furnish passes
to persons for whom any Tenant requests same in writing. Tenant shall be
responsible for all persons for whom any Tenant requests such pass, and shall be
liable to Owner for all acts of such persons. Notwithstanding the foregoing,
Owner shall not be required to allow Tenant or any person to enter or remain in
the building, except on business days from 8:00 a.m. to 6:00 p.m. and on
Saturdays from 8:00 a.m. to 1:00 p.m. Tenant shall not have a claim against
Owner by reason of Owner excluding from the building any person who does not
present such pass.
11. Owner shall have the right to prohibit any advertising by Tenant which
in Owner's opinion, tends to impair the reputation of the building or its
desirability as a loft building, and upon written notice from owner, Tenant
shall refrain from or discontinue such advertising.
12. Tenant shall not bring, or permit to be brought or kept, in or on the
demised premises, any inflammable, combustible, explosive, or hazardous fluid,
material, chemical or substance, or cause or permit any odors of cooking or
other processes, or any unusual or other objectionable odors, to permeate in, or
emanate from, the demised premises.
13. Tenant shall not use the demised premises in a manner which disturbs or
interferes with other tenants in the beneficial use of their premises.
14. Refuse and Trash. (1) Compliance by Tenant. Tenant covenants and
agrees, at its sole cost and expense, to comply with all present and future
laws, orders and regulations, of all state, federal, municipal, and local
governments, departments, commissions and boards regarding the collection,
sorting, separation and recycling of waste products, garbage, refuse and trash.
Tenant shall sort and separate such waste products, garbage, refuse and trash
into such categories as provided by law. Each separately sorted category of
waste products, garbage, refuse and trash shall be placed in separate
receptacles reasonably approved by Owner. Tenant shall remove, or cause to be
removed by a contractor acceptable to Owner, at Owner's sole discretion, such
items as Owner may expressly designate. (2) Owner's Rights in Event of
Noncompliance. Owner has the option to refuse to collect or accept from Tenant
waste products, garbage, refuse or trash (a) that is not separated and sorted as
required by law or (b) which consists of such items as Owner may expressly
designate for Tenant's removal, and to require Tenant to arrange for such
collection at Tenant's sole cost and expense, utilizing a contractor
satisfactory to Owner. Tenant shall pay all costs, expenses, fines, penalties,
or damages that may be imposed on Owner or Tenant by reason of Tenant's failure
to comply with the provisions of this Building Rule 15, and, at Tenant's sole
cost and expense, shall indemnify, defend and hold Owner harmless (including
reasonable legal fees and expenses) from and against any actions, claims and
suits arising from such noncompliance, utilizing counsel reasonably satisfactory
to Owner.
RIDER A
Provisions Of General Application
Article A-1. Definitions
The following terms placed within quotations are used throughout this Lease
with the respective definitions set forth below:
A-1.01 Intentionally Omitted.
A-1.02 "Building" shall mean any building of which the Premises are a part
or which is included in its entirety in the Premises.
A-1.03 "Daily Late Charge" shall mean the daily sum of $25.00 and increased
annually at the same percentage increase as Minimum Rent shall increase.
A-1.04 "Fixed Rent", "Minimum Rent", or "Fixed Minimum Rent" shall mean the
annual rent specified in the preamble to this Lease, as increased in accordance
with Article B-1.
A-1.05 "Landlord", "Owner" and "Lessor" are used interchangeably in this
Lease and shall all have the meaning given "Owner" in the printed form portion
of this Lease.
A-1.06 "Monthly Maintenance Amount" shall mean the monthly sum of
$3,723.62, or such increased amount which shall result from any recomputation
thereof under Section C-1.03.
A-1.07 "Minimum Insurance Coverage" shall mean the limits designated below
for the corresponding types of insurance:
Insurance Limit (All limits specified herein are subject to change by
Landlord if the underlying limit of Landlord's blanket policy shall increase.)
Public Liability $2,000,000.00 annual aggregate, $1,000,000.00 per
occurrence, written on an industry standard form.
Contents Full Replacement Value Coverage
A-1.08 "Monthly Tax Payment" shall mean the monthly sum of $9,496.83, or
such increased amount which shall result from any recomputation thereof under
Section A-4.02.
A-1.09 "Monthly Utility Charge" shall mean the monthly sum of $7,828.12, or
such increased amount which shall result from any recomputation thereof under
Article C-2.
A-1.10 "Premises" and "Demised Premises" are used interchangeably in this
Lease and mean the property leased to Tenant as described in the preamble to
this Lease.
A-1.11 "Property" shall mean the entire real estate of which the Premises
are a part, including, without limitation, all land, buildings, parking
facilities (existing or hereafter acquired, whether or not the same are
contiguous to the Building) and the Premises.
A- 1.12(a) Tenant designates the following individual(s) as the person(s)
to whom all notices, communications and correspondence pertaining to this Lease
should be directed:
Name and Title Business Address Business Telephone
-------------- ---------------- ------------------
Xxxxx Xxxxxxx, CFO 00 Xxxxxx Xxxx Xxxxx 516-605-6640
Xxxx Xxxxxxxxxx, XX 00000
Landlord, at its option, may direct any notice to Tenant under this Lease
to the Premises, or, if the preamble to this Lease refers to another office of
Tenant, to such office. If more than one individual is enumerated above,
Landlord's service of notice upon any one or more of them shall satisfy
Landlord's notice obligations under this Lease.
A-1.13 "Rent" shall mean all amounts payable by Tenant under this Lease,
including, without limitation, all Minimum Rent, real estate tax payments, and
utility, maintenance and late charges.
A-1.14 "Lease Commencement Date" shall be the first day of August 2001.
A-1.15 Intentionally Omitted.
A-1.16 "Term" is the period from the Lease Commencement Date to midnight on
the last day of the 10th Lease Year (such date being hereinafter referred to as
the "Expiration Date"), or such earlier date upon which the Term of this Lease
shall expire or be cancelled or terminated pursuant to any of the conditions or
covenants of this Lease or pursuant to law.
A-1.17 "Rentable Square Footage" shall mean approximately 26,567 square
feet and is subject to adjustment by Landlord.
A-1.18 "Tenant's Pro-rata Share" shall be fifty percent (50%). In the event
Landlord shall increase the size of the Building or in the event Tenant shall
lease additional space in the Building, Tenant's Pro-rata Share shall be
adjusted to reflect the new ratio which the size of the Demised Premises bears
to the size of the Building.
A- 1.19 "Taxes" shall mean any and all taxes, assessments, sewer and water
rents, rates and charges, license fees, impositions, liens, fees, interest,
penalties and all other municipal and governmental charges of any nature
whatsoever (except only inheritance and estate taxes and income taxes not herein
expressly agreed to be paid by Tenant), whether general or special, ordinary or
extraordinary, foreseen or unforeseen, which may presently or in the future
become due or payable or which may be levied, assessed or imposed by any taxing
authority on or with respect to all or any part of the Property, or upon the
estate or interest of Landlord in the Property or any part thereof, including,
without limitation, all taxes and assessments for improving any streets, alleys,
sidewalks, sidewalk vaults and alley vaults, if any.
A-1.20 "Tenant" and "Lessee" are used interchangeably in this Lease and
shall be deemed to mean the person or entity described in the preamble to this
Lease as having leased the Premises from Landlord, and any permitted successor
to Tenant's interest hereunder.
A-1.21 Tenant's federal taxpayer identification number is 00-0000000.
Article A-2. Rent
A-2.01 Tenant's obligation to pay Rent shall begin on the Lease
Commencement Date.
Landlord may apply any payment by Tenant of Rent hereunder against any
item(s), or portion(s) thereof, of Rent then remaining unpaid and any
designation by Tenant as to the application of amounts paid by Tenant under this
Lease shall not bind Landlord in any manner whatsoever.
A-2.02 If Tenant shall fail to pay Rent, in whole or in part, on or before
the fifth day of any month during which the same shall become due, Tenant shall
pay Landlord Daily Late Charges computed by multiplying the Daily Late Charge by
the number of days from the first day of such month through the date on which
Tenant pays such Rent in full. Tenant shall become liable for the payment of
separate Daily Late Charges for each amount of Rent which remains unpaid. All
Daily Late Charges shall be deemed Rent and shall be payable by Tenant as they
accrue, and Landlord shall have all rights with respect to the non-payment of
Daily Late Charges as Landlord has with respect to the non-payment of all other
Rent due hereunder. Landlord's demand for and collection of Daily Late Charges
shall not be deemed a waiver of any remedies that Landlord may have under this
Lease by summary proceedings or otherwise. Rent shall be deemed received (a)
when delivered to Landlord, if Tenant's representative shall personally deliver
the same to Landlord's office, or (b) on the date of the official U. S. Postal
Service postmark stamped on the envelope in which the Rent is enclosed, if
Tenant shall mail the same to Landlord.
A-2.03 If Tenant shall fail to vacate and surrender the Premises on the
Expiration Date, Tenant, at Landlord's option, shall be deemed a month-to-month
tenant and shall pay Landlord monthly rent at a rate equal to 200% of the Rent
payable during the last month of the Term, subject to all of the other terms of
this Lease insofar as they apply to a month-to-month tenancy. The application of
this Section shall under no circumstances be deemed to establish a
month-to-month or other form of tenancy in favor of Tenant.
A-2.04 If Landlord shall institute summary proceedings for the non-payment
of Rent, Tenant shall pay Landlord's attorneys' fee in an amount equal to ten
percent of the amount of unpaid Rent but not less than $750.00. Such fee shall
be deemed Rent and Landlord, at its option, may include such amount in said
proceedings as an unpaid item.
A-2.05 Landlord' s acceptance of Rent from any person or entity other than
Tenant shall not be deemed to establish a tenancy of any nature with such party
unless Landlord shall so elect in writing, nor shall the same relieve Tenant
from any of its obligations under this Lease.
Article A-3. Tenant's Failure to Surrender
A-3.01 Tenant agrees to indemnify and hold harmless Landlord and Landlord's
principals, directors, officers, agents and employees from and against any loss,
cost, liability and expense of any nature whatsoever, including reasonable
attorneys' fees and disbursements, which may arise in connection with Tenant's
failure to surrender the Premises upon the expiration of the Term, including any
claims by any succeeding tenant.
Article A-4. Real Estate Taxes and Assessments
A-4.01 Intentionally Omitted.
A-4.02 Tenant shall, commencing on the Lease Commencement Date and
continuing throughout the term of this Lease, be liable to Landlord for its
Pro-Rata Share of Taxes for each tax year occurring in whole or in part during
the Term of this lease. Tenant shall pay on the first day of each and every
month during the first year of the Term, in advance, the Monthly Tax Payment. If
at the end of the first lease year of the Term the total tax payments made by
Tenant shall be less than the actual Taxes payable hereunder by Tenant for said
year, Tenant shall pay the deficiency to Landlord upon demand. If such payments
shall exceed the actual Taxes payable hereunder by Tenant for said year, the
excess shall be credited toward the Monthly Tax Payment next coming due. At the
end of the first lease year of the Term, Landlord shall recompute the Monthly
Tax Payment required to be made by Tenant during the second lease year of the
term, said payments to be one-twelfth (1/12) of the total amount of the Taxes
Tenant was required to pay during the first lease year of the Term.
A like procedure shall be followed for such succeeding lease year.
Notwithstanding the foregoing, if at any time during any lease year Landlord
shall determine that the Monthly Tax Payment will be insufficient to pay the
Taxes as they come due, Landlord may, at its election, require Tenant to pay the
amount of the deficiency in one payment or increase the Monthly Tax Payment.
Monthly Tax Payments under this Section shall be apportioned at the commencement
and expiration of the Term, if necessary.
In lieu of Landlord requiring Tenant to pay Taxes in the manner hereinabove
set forth, Landlord may elect to require Tenant to pay Landlord's Taxes within
ten days after Landlord shall deliver to Tenant a demand therefor. Each such
demand shall be accompanied by a copy of the appropriate tax xxxx.
A-4.03 Landlord's failure to deliver to Tenant a statement showing Tenant's
liability for additional Taxes for any year during the Term shall neither
prejudice nor waive Landlord's right to deliver any such statement for any
subsequent year, or to include in said statement an amount of Rent due from
Tenant for any liability for additional Taxes during a previous year in which
Landlord did not provide Tenant with any such statement. Tenant's obligation to
pay Rent with respect to the last year of the Term shall survive the expiration
of the Term.
A-4.04 Tenant shall in all events pay the full amount of any increases in
Taxes which may result from any improvements made by or on behalf of Tenant.
Taxes shall be apportioned at the commencement and expiration of the Term.
Article A-5. Insurance
A-5.01 Tenant acknowledges that Landlord maintains a blanket "all-risk"
property insurance policy ("Landlord's Policy") which covers substantially all
buildings and improvements owned from time to time by Landlord and all Rent due
under all lease agreements pertaining to such buildings and improvements.
Landlord's Policy provides protection against all risks and hazards as may from
time to time be insurable thereunder, including, without limitation, fire,
vandalism, malicious mischief, sprinkler leakage, boilers and machinery and
extended coverage type perils and public liability, personal and bodily injury
and property damage. Landlord's Policy provides full replacement coverage, as
the same may be determined from time to time.
Tenant acknowledges that Landlord's Policy provides for a deductible in the
event of an occurrence and submission of a claim. Tenant agrees that if any loss
or damage to the Premises covered by Landlord's Policy shall occur, Tenant shall
pay as Rent the lesser of (a) the repairs required to be made in the Premises or
(b) Tenant's allocable portion of the deductible, prorated among Tenant and such
other tenants in the Building whose space was also affected by the occurrence in
the same ratio as the rentable square footage of their respective premises bears
to the total rentable square footage of all premises in the Building affected by
such occurrence.
Tenant acknowledges that Landlord's Policy is solely the property of
Landlord, and that all rights and benefits thereunder shall accrue exclusively
to Landlord or its designee. Further, Tenant agrees that it acquires no rights
of any nature with respect to Landlord's Policy and the benefits and rights
thereunder, whether by virtue of any theory of constructive trust, third party
beneficiary, or otherwise.
A-5.02 Intentionally omitted.
A-5.03 Tenant shall obtain and maintain in full force and effect during the
Term (a) Public Liability Insurance on an occurrence basis written on a
Comprehensive General Liability Basis, including Premises /Operations,
Independent Contractor's Liability, Products/Completed, Operations Liability,
Water Damage Legal Liability, Sprinkler Leakage Legal Liability and a Broad Form
Comprehensive General Liability Endorsement, covering occurrences in or about
the Premises, with no deductible, (b) a Plate Glass Policy covering all plate
glass in and about the Premises, if any and (c) insurance against loss of or
damage to Tenant's property and fixtures on or about the Premises by fire and
such other risks and hazards as are insurable under the latest available
standard form of policy for "all-risk" property insurance, providing full
replacement value coverage. All such insurance shall be written with limits not
less than the Minimum Insurance Coverage or any increased limits Landlord may
from time to time reasonably require. All policies shall be written as primary
coverage, not contributing with, nor in excess of, coverage that Landlord may
carry. All insurance maintained by Tenant under this Section shall name Landlord
as a loss payee as respects the improvements and betterments of the Property and
all insurance maintained by Tenant under clauses (a) and (b) of this Section
shall protect Landlord and name Landlord as an additional named insured.
A-5.04 Tenant shall deliver to Landlord certificates for the insurance
specified in Section A-5.03, together with proof of payment of the premium for
the same; all certificates required to be delivered to Landlord under this Lease
as provided above and thereafter from time to time for the insurance specified
in clauses (a) and (b) of Section A-5.03 shall name Landlord as an additional
named insured, and shall state unequivocally that such policy shall not be
cancelled or changed in any manner without sixty (60) days prior written notice
to Landlord. Tenant shall renew or replace the same and shall deliver to
Landlord certificates for all such renewals and replacements, at least thirty
days before such policies, or any renewal or replacement policies, expire. All
such insurance shall be issued by insurance companies having a Best's rating of
at least A+/XV and licensed to do business in the State of New York and
authorized to issue such policies. If Tenant shall fail to procure, place and/or
maintain any such insurance and/or pay any and all premiums and charges
therefor, Landlord may (but shall not be obligated to) do so and in such event
Tenant shall pay the amount thereof, plus an administrative charge equal to ten
percent of such amount, as Rent to Landlord on demand.
Tenant shall promptly deliver to Landlord a certificate for each
endorsement to the aforementioned insurance permitted under this Lease, and a
certificate naming Landlord as an additional named insured for each separate or
additional policy of insurance otherwise maintained by Tenant with respect to
the Premises.
A-5.05 Tenant shall have included in each policy of insurance it is
required to obtain and maintain under this Lease, as well as all other insurance
policies pertaining to the Premises, Tenant's operation in the Premises and/or
Tenant's fixtures and property in the Premises, a waiver of the insurer's right
of subrogation against Landlord.
A-5.06 Tenant's policies of insurance shall include the waiver of
subrogation or agreement or permission to release liability referred to in
Section A-5.05 and Tenant hereby waives any right of recovery against Landlord,
its employees, agents or contractors, for any loss occasioned by any insured
casualty.
A-5.07 Each policy of insurance which Tenant is required to maintain under
this Lease shall clearly specify by endorsement that the policy is taken out at
the request of Tenant, which is responsible for all premiums on said policy.
Further, each policy of insurance maintained by Tenant under (a) and (b) of
Section A-5.03 shall clearly specify by endorsement that Landlord is an
additional named insured under such policy.
A-5.08 In the event of any loss or damage in or about the Premises which
constitutes a loss, damage, casualty or other occurrence covered by insurance
maintained by Tenant under this Lease or Landlord under Section A-5.01, Tenant
immediately shall give Landlord notice of such loss or damage by certified mail,
return receipt requested.
Article A-6. Alterations: Removal By Tenant
A-6.01 All alterations to the Premises of any nature whatsoever
("Alterations") are subject to Article 3 of this Lease and the following
requirements:
(a) Prior to the commencement of any Alterations, Tenant shall submit to
Landlord, for Landlord's written approval, plans and specifications (to be
prepared by and at the expense of Tenant) showing the proposed Alterations in
detail satisfactory to Landlord. No Alterations shall begin until Landlord shall
have approved such plans and specifications, in writing, and Tenant shall have
delivered to Landlord certificates for all insurance Tenant is required to
maintain under this Lease in connection with making Alterations. Tenant shall
make all approved Alterations at its own expense, in accordance with the plans
and specifications therefor approved by Landlord and then only by contractors
and mechanics approved by Landlord. No amendments or additions shall be made to
any plans and specifications for Alterations approved by Landlord without
Landlord's prior written consent;
(b) The Alterations will not result in a violation of or require a change
in any certificate of occupancy covering the Premises or the Building;
(c) The character, outside appearance, usefulness and/or rentability of the
Premises or the Property or any part thereof, shall not be affected in any way,
and such Alterations shall not, in the sole opinion of Landlord, weaken or
impair (temporarily or permanently) the structure or lessen the value or cubic
content of the Building, either during the making of such Alterations or upon
their completion;
(d) No part of the Property other than the Premises shall be physically
affected. Without limiting the generality of the foregoing, Tenant shall not,
without Landlord's specific prior written consent, cause to be made,
constructed, erected, installed or otherwise placed through, on or about the
exterior walls or the roof of the Building any holes, vents, windows, fans,
pipes, ducts, doors, machinery, equipment, appliances (including, without
limitation, air conditioning unit(s)), television or radio antenna or other
tangible objects of any nature whatsoever;
(e) The proper functioning of the Building's equipment, in the sole opinion
of Landlord, shall not be
adversely affected;
(f) Upon completion of any Alterations (excluding mere decorations), Tenant
shall deliver to Landlord a copy of "as-built" plans for such Alterations;
(g) Tenant shall not perform Alterations in any manner which for any reason
whatsoever would, in Landlord's opinion, interfere or conflict with work being
performed by contractors or laborers then engaged in the Building or would in
any way disturb the management, operation or maintenance of the Building or any
part thereof;
(h) No approval by Landlord of Alterations to be made by Tenant shall in
any way be deemed to be an agreement by Landlord that such Alterations comply
with applicable legal or insurance carrier requirements. Notice is hereby given
that Landlord shall not be liable for any labor or materials furnished to
Tenant, and that no mechanic's or other lien for such labor or materials shall
attach to or affect any interest of Landlord;
(i) Throughout the performance of Tenant's Alterations, Tenant, at its
expense, shall carry, or cause to be carried by Tenant's contractors and
subcontractors, all insurance, including without limitation, that required by
Articles A-1.07 and A-5.03 of this Lease or as otherwise may be required by law.
Tenant shall furnish Landlord with copies of the insurance policies required
hereunder or certificates thereof that such insurance is in effect at or before
the commencement of Alterations and, on request, at reasonable intervals
thereafter during the continuance of Alterations;
(j) All work to be performed other than Landlord's Work shall be performed
by Tenant using union labor, if required by Landlord, at Tenant's sole cost and
expense; and
(k) In connection with all work to be performed in and for the Demised
Premises, Tenant shall file all drawings, plans and specifications, pay all fees
and obtain all permits and applications from the Building Department, the
Department of Labor and any other authorities having jurisdiction; and Tenant
shall obtain a Certificate of Occupancy and all other approvals required for
Tenant to use and occupy the Demised Premises and to open for business to the
public. If Tenant shall delay in obtaining a Certificate of Occupancy for the
Demised Premises, Landlord, at Tenant's cost and expense, may attempt to obtain
such Certificate of Occupancy and Tenant shall cooperate with Landlord
(including the signing of any necessary forms or applications) in connection
with such efforts. Tenant shall reimburse Landlord, as additional rent, for any
costs incurred in obtaining such Certificate of Occupancy.
(1) Tenant shall submit its requirements for any and all Tenant work to
Landlord and Landlord shall submit a written proposal to Tenant to perform the
work at Tenant's cost as outlined. Tenant may obtain proposals from other
contractors; however, Landlord reserves the right to review said proposals and
perform the work at or below the costs indicated. Landlord's failure to respond
within three (3) business days of receipt of said proposals shall mean Landlord
will not perform the work and Tenant may proceed with the work with other
contractors subject to the applicable terms and conditions in this agreement
governing alterations and improvements. Any work that Tenant authorizes the
Landlord to perform will be at the sole cost and expense of the Tenant and will
include a fee of fifteen percent (15%) of the actual cost to Landlord for
Landlord's supervision and overhead. Tenant will execute a Work Authorization
Form prepared by Landlord and issue a check for the full amount of the cost of
such work prior to Landlord performing any such work.
A-6.02 Pursuant to Article 3 of this Lease, Landlord hereby elects to
require Tenant to remove its installations in the Premises prior to the
expiration of this Lease, at Tenant's sole expense. The foregoing election is
not irrevocable and Landlord reserves the right at any time and from time to
time by notice to Tenant to void the same and assume the ownership of Tenant's
installations in accordance with Article 3 hereof, or reinstitute said election.
Article A-7. Acceptance and Occupancy of the Premises
A-7.01 Landlord makes no representations as to the condition of the
Premises. Tenant represents that it has inspected the Premises and agrees to
accept the same "as is".
A-7.02 The taking of occupancy of the whole or any part of the Premises by
Tenant shall be conclusive evidence, as against Tenant, that Tenant accepts
possession of the same and that the Premises so occupied and the Property were
in good and satisfactory condition at the time such occupancy was so taken and
that the Premises were substantially as shown on Exhibit A, if any.
A-7.03 Landlord shall not be required to provide Tenant with possession of
or keys to the Premises until Tenant shall have delivered to Landlord
certificates of insurance as required under Section A-5.03 of this Lease.
Landlord's refusal to grant Tenant occupancy of the Premises in accordance with
the foregoing shall not be a defense of Tenant against its obligation to pay
Rent.
Article A-8. Security Deposit
A-8.01 Landlord shall deposit all Security under this Lease in an interest
bearing account. All interest earned on the security hereunder (less Landlord's
administration fee under Section A-8.02) shall be added to the then existing
security and constitute additional security and be disposed of in manner set
forth in Article 32 of the pre-printed portion of this Lease captioned
"Security". Tenant's rights under this Lease to its security deposit may not be
assigned, transferred, pledged, mortgaged or otherwise encumbered by Tenant, and
any attempt by Tenant to do so shall be void and of no effect.
A-8.02 Landlord shall retain an annual administration fee with respect to
the security under this lease equal to one (1%) percent per annum upon the
security money so deposited. If the annual administration fee payable to
Landlord hereunder at any time exceeds the amount permissible under applicable
laws or if the fee is less then the amount permissible under applicable law,
then such fee shall be the amount legally prescribed.
A-8.03 If at any time or times during the Term the amount of security
(excluding any portion thereof which shall be accrued interest) then held by
Landlord shall be less than two (2) months' installments of Minimum Rent, Taxes
and, if Tenant is required to pay insurance, utilities and/or maintenance in
monthly installments, then insurance, utilities and/or maintenance all at the
then current rates hereunder, whether due to an increase in Rent or Landlord's
application of all or part of the security in accordance with this Lease, Tenant
shall deposit with Landlord an additional sum so that the security on deposit
with Landlord shall then equal such two (2) months' installments in the
aggregate.
Tenant shall make such payment no later than the payment due date of any
increase in Rent, or, in the case of Landlord's application of security as
aforesaid, within five days after Landlord's demand. Landlord shall have the
same rights and remedies in the event of Tenant's failure to deposit with
Landlord any security required under this Lease as Landlord has with respect to
the non-payment of any other items of Rent.
A-8.04 Intentionally Omitted.
A-8.05 At no time shall security, or any part thereof, be permitted to be
used by Tenant toward the payment of its Rent or other obligations under this
Lease.
A-8.06 Tenant agrees that upon the return of its Security Deposit less any
appropriate setoffs and/or deductions by Landlord, Tenant shall be deemed to
have waived any and all rights and/or claims against Landlord that Tenant has
failed to assert in writing within thirty (30) days of the expiration of the
Lease term.
Article A-9. Brokerage
A-9. 01 Landlord and Tenant each represent to the other that it had no
dealings or negotiations of any nature with any broker or agent.
Article A-10. Sewers & Sanitary Disposal Systems
A-10. 01 If the Premises shall be connected to a sanitary disposal system
for Tenant's exclusive use, Tenant shall be required to maintain, repair and
replace the same at its sole cost and expense, and shall not be required to
share in the expense of maintaining any other sanitary disposal system unless
Tenant shall also use such other system.
A-10.02 If the Building shall not be connected to the street sewer line,
Landlord, at its option, may perform all work necessary to so connect the
Building. Landlord and Tenant shall share the cost of such work, including,
without limitation, the costs of resurfacing and repaving. The portion of such
cost for which Tenant shall be responsible and shall pay to Landlord on demand
shall equal Tenant's Pro-rata Share of the amount obtained by multiplying said
cost by a fraction, the numerator of which shall be the number of months
remaining in the Term including and after the month in which such work was
commenced, the denominator of which shall be one hundred twenty (120) months.
Article A-11. Noxious Odors, Noise, etc.
A-11.01 Tenant shall not permit any unusual, excessive or noxious noise,
vibration, odor or other annoying condition to emanate from the Premises. Within
five (5) days of Landlord's notice to Tenant, Tenant shall install or institute,
at its sole cost and expense, control devices or procedures to eliminate such
condition(s). Tenant's failure to eliminate the same within such five (5) day
period shall be deemed a material default of a substantial obligation of Tenant.
Article A-12. Easements; Reservation of Rights
X- 00. 01 Landlord reserves the right to create and grant on or about the
Premises utility easements in the form required by any utility company, whether
public or private, in order to furnish utility services to the Premises or to
any other premises.
A-12.02 Unless the Premises constitute the entire Building, Landlord
reserves the right to place in, under, over or through the Premises pipes,
wires, lines and facilities serving other areas of the Property, provided that
Landlord shall only do so in a manner which does not unreasonably interfere with
Tenant's conduct of its business in the Premises.
Article A-13. Non-Liability and Indemnification
A- 13.01 Neither Landlord nor Landlord's principals, officers, directors,
agents or employees (individually and collectively, the "Landlord Group") shall
be liable to Tenant, its principals, officers, directors, agents or employees
(individually and collectively, the "Tenant Group") , and Tenant shall save the
Landlord Group harmless from any loss, liability, claim and/or expense
(including, without limitation, reasonable attorneys' fees and disbursements)
arising from or in connection with any injury to the Tenant Group, its
contractors, licensees or invitees, any interruption of Tenant's business, or
for damage to, or loss (by theft or otherwise) of, any property and/or fixtures
of every kind, regardless of the cause thereof, unless the same shall be
proximately caused by the sole negligence of Landlord for which Landlord is
legally liable. Notwithstanding the foregoing, (a) Tenant immediately shall
notify Landlord of any claim against Landlord, (b) the Landlord Group shall not
be liable for any loss, damage or expense whatsoever to the extent of Tenant's
insurance coverage therefor and (c) Tenant shall first seek reimbursement for
any such loss, damage or expense against its insurance carrier.
A-13.02 Tenant indemnifies and shall hold harmless the Landlord Group from
and against any and all loss, liability, claim and/or expense (including,
without limitation, reasonable attorneys' fees and disbursements) in connection
with or arising from (a) any default by Tenant under this Lease, (b) Tenant's
use or occupancy of the Premises and/or any acts, omissions or the negligence of
the Tenant Group in or about the Premises, including, without limitation,
sidewalks, if any, adjoining the Premises. Tenant shall pay to Landlord as Rent
an amount equal to all such losses, liabilities, claims and expenses within five
days after Landlord's rendition to Tenant of bills or statements therefor.
A-13.03 If Tenant's use of the Premises shall be enjoined or prohibited,
provided the same shall not have resulted from any act or omission by or on
behalf of Tenant or use of the Premises in any manner other than as is permitted
under this Lease, Tenant shall have the right to elect to terminate this Lease
upon written notice to Landlord setting forth the date of termination, and such
right shall be Tenant's sole available remedy against Landlord in connection
therewith.
A-13.04 Notwithstanding anything in this Lease to the contrary, the
Landlord Group shall have no personal liability under or with respect to this
Lease and the liability of the Landlord Group in connection with this Lease is
limited solely to Landlord's equity interest in the Property. Under no
circumstances whatsoever shall Landlord be liable to Tenant in connection with
this Lease for consequential or special damages.
Article A-14. Corporate Tenant and Partnership Tenant
A-14.01 If Tenant is a corporation, as a condition to the making of this
Lease, Tenant shall within twenty days from the date of execution of this Lease
deliver to Landlord a duly authorized resolution of the Board of Directors of
Tenant, in form reasonably satisfactory to Landlord, ratifying and approving the
terms and provisions of this Lease.
A-14.02 If Tenant is a limited liability company, a partnership, or is
comprised of two or more persons, individually or as co-partners of a
partnership (individually and collectively, the "Partnership Tenant"), the
following provisions shall apply to the Partnership Tenant: (i) Tenant
represents that the ownership of and/or power to control a majority in interest
of Tenant is vested and/or owned beneficially by the individual(s) executing
this Lease and members of his or their immediate family; (ii) the liability of
each of the parties comprising Partnership Tenant shall be joint and several;
(iii) each of the parties comprising Partnership Tenant hereby consents in
advance to, and agrees to be bound by, any modifications of this Lease which may
hereafter be made and by any notices, demands, requests or other communications
which may hereafter be given, by Partnership Tenant or by any of the parties
comprising Partnership Tenant; (iv) any bills, statements, notices, demands,
requests, service of process, or other communication given or rendered to
Partnership Tenant or to any of the parties comprising Partnership Tenant shall
be deemed given or rendered to Partnership Tenant and to all such parties and
shall be binding upon Partnership Tenant and all such parties; (v) if
Partnership Tenant shall admit new partners (which term shall, for the purposes
of this Section A-14.02, also be deemed to mean members of a limited liability
company), all of such new partners shall, by their admission to Partnership
Tenant, be deemed to have assumed performance of all of the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed; and (vi)
Partnership Tenant shall give prompt notice to Landlord of the admission of any
such new partners, and upon demand of Landlord, shall cause each such new
partner to execute and deliver to Landlord an agreement in form satisfactory to
Landlord, wherein each such new partner shall assume performance of all of the
terms, covenants and conditions of this lease on Tenant's part to be observed
and performed (but neither Landlord's failure to request any such agreement nor
the failure of any such new partner to execute or deliver any such agreement to
Landlord shall vitiate the provisions of subdivision (v) of this paragraph).
If there shall occur without Landlord's prior written consent, whether by
operation of law or otherwise (including, without limitation, merger,
consolidation and dissolution), any (a) transfer of Tenant's interest in this
Lease, (b) if Tenant is a corporation, change in the ownership of and/or power
to vote a majority of the outstanding capital stock of Tenant or (c) if Tenant
is a partnership, limited liability company, or other association, any change in
the beneficial ownership of and/or power to control a majority in interest of
Tenant, then Landlord may terminate this Lease upon thirty days' notice to
Tenant.
Article A-15. Rent Control
A-15.01 If at the commencement of, or at any time(s) during the term of
this Lease, the Rent shall not be fully collectible by reason of any Federal,
State, County or local law, proclamation, order or regulation, or direction of a
public officer or body pursuant to law, Tenant shall enter into such agreement
(s), and take such other lawful steps (without additional expense to Tenant), as
Landlord may request to permit Landlord to collect the maximum rents which may
from time to time during the continuance of such legal rent restriction be
legally permissible (but not in excess of the amounts reserved therefor under
this Lease). Upon the termination of such legal rent restriction prior to the
expiration of the term of this Lease, (a) the Rent shall become and thereafter
be payable hereunder in accordance with the amounts reserved in this Lease for
the periods following such termination and (b) Tenant shall pay to Landlord, if
legally permissible, an amount equal to (i) the Rent which would have been paid
pursuant to this lease but for such legal rent restriction less (ii) the Rent
paid by Tenant to Landlord during the period(s) such legal rent restriction was
in effect.
Article A-16. Tenant Defaults
A-16.01 Tenant agrees that in the event that Landlord shall commence a
Summary Proceeding for non-payment of Rent to be paid by Tenant pursuant to the
terms of this Lease, Tenant will not interpose any counterclaim or set-off of
any nature whatsoever. If Tenant shall be evicted from or vacate the Premises or
this Lease shall be terminated prior to its expiration as a result of Tenant's
failure to perform any obligation hereunder, without limiting Landlord's other
remedies under this Lease or at law, (a) if Landlord shall relet the Premises,
Tenant shall remain liable for any deficiency in Rent which Landlord does not
receive from the succeeding tenant and shall not be entitled to any excess Rent
which Landlord may receive from such tenant, (b) Tenant shall reimburse Landlord
as Rent for the cost of preparing the Premises for the succeeding tenant's
occupancy, including, without limitation, Landlord's Work, if any, and all
carpentry, electrical, HVAC, plumbing and painting work, (c) Tenant shall pay to
Landlord the amount of any rent concession under this Lease, including, without
limitation, the Rent, if any, which Tenant was not required to pay at the
commencement of the Term, and (d) Tenant shall pay to Landlord all marketing
costs and brokerage fees.
A-16.02 If Tenant shall default in the performance of any covenant, term or
provision of this Lease, Landlord, without thereby waiving such default, may
perform the same for the account and at the expense of Tenant, without notice in
a case of emergency or if Landlord may be subject to any civil or criminal
liability, and in any other case if such default shall continue for ten days
after the date Landlord shall have given written notice to Tenant of its
intention to do so. Landlord shall furnish Tenant with a xxxx for any costs and
expenses Landlord may incur in so performing for Tenant's account, and Tenant
shall pay as Rent the amount shown on each such xxxx within ten days after the
same is sent by Landlord to Tenant.
A-16.03 Landlord's acceptance of a check, draft or any other instrument
from Tenant in the payment of Rent is solely a consideration to Tenant. If (a)
any check delivered to Landlord in payment of Rent hereunder shall be returned
to Landlord for any reason whatsoever, including, without limitation,
insufficient or deposited but uncollected funds, or (b) Landlord commences
summary proceedinqs aqainst Tenant for the non-payment of Rent or otherwise
institutes any proceedings against Tenant as a result of Tenant's default
hereunder, or (c) Tenant pays Rent after the tenth day of any month, Landlord
may require Tenant to pay Rent by cash or bank certified check only.
A-16.04 (a) Notwithstanding any provision(s) in this Lease to the contrary,
the parties acknowledge and agree that (i) the Premises are demised under this
Lease for a minimum aggregate Rent (subject to such increases and other costs as
provided throughout this Lease) of $4,235,982.00 for the entire Term, payable
upon the execution of this Lease, (ii) the terms of this Lease which provide for
the payment of Rent in installments are solely for the convenience of Tenant,
and (iii) upon the default in the payment of Rent in installments as aforesaid,
then the full aggregate Rent hereby reserved for the entire Term then remaining
unpaid shall, at Landlord's option, become due and payable upon demand.
(b) If Tenant shall default (i) in the timely payment of Rent and such
default shall continue or be repeated for three consecutive months or for a
total of four months in any period of twelve months, or (ii) in the performance
of any particular term, condition or covenant of this Lease more than six times
in any period of six months, then, notwithstanding that such defaults shall have
each been cured within the applicable grace periods under this Lease, if any,
any further similar default shall be deemed to be deliberate and Landlord
thereafter may terminate this Lease on ten days written notice to Tenant,
without affording Tenant an opportunity to cure such further default.
A-16.05 Intentionally omitted.
A-16.06 (a) Landlord may restrain any breach or threatened breach by Tenant
of any covenant or obligation of Tenant under this Lease without the necessity
of proving the inadequacy of any legal remedy or irreparable harm. The remedies
of Landlord under this Lease shall be deemed cumulative and none of such
remedies, whether exercised or not, shall be deemed to be to the exclusion of
any other.
(b) No Waiver. No delay or omission of Landlord to exercise any right or
power arising from any default shall impair any such right or power or be
construed as a waiver of any such default or any acquiescence therein. No waiver
of any breach of any of the covenants of this Lease shall be construed, taken or
held to be a waiver of any other breach, or as a waiver, acquiescence in or
consent to any further or succeeding breach of the same covenant. The acceptance
by Landlord of any payment of Rent after the termination by Landlord of this
Lease or of Tenant's right to possession hereunder shall not, in the absence of
an agreement in writing to the contrary by Landlord, be deemed to restore this
Lease or Tenant's right to possession hereunder, as the case may be, but shall
be construed as a payment on account, and not in satisfaction of damages due
from Tenant to Landlord.
Article A-17. Eminent Domain
A- 17.01 If the whole or substantially all of the Premises shall be
acquired or condemned by eminent domain for any public or quasi-public use or
purpose, then and in that event, the term of this Lease shall cease and
terminate from the date of title vesting in such proceeding and the Tenant shall
have no claim against Landlord for the value of any unexpired term of said
lease.
In the event that more than 25%, but less than the whole or substantially
the whole of the ground floor area of the Premises shall be so condemned, the
Landlord and the Tenant shall each have the right to cancel and terminate this
Lease, upon the giving of written notice to the other party not later than
thirty (30) days after the date of vesting of title in the condemning authority,
of the said party' s election to terminate said Lease. Termination shall be
effected as of the time that possession of the part so taken shall be required
for public use, Rent shall be apportioned and adjusted as of the time of
termination and Tenant shall have no claim against Landlord for the value of any
unexpired term of this Lease.
In the event that not more than 25% of the ground floor area of the
Premises shall be taken by condemnation or in the event that the Lease shall not
be terminated as aforesaid, then the Term of this Lease shall continue in full
force and effect and the Landlord shall repair the remaining part of the
Premises, if any part thereof has been taken in such condemnation, and
thereafter the Rent shall xxxxx in the proportion which the square foot area of
any part of the Premises so taken bears to the entire Premises.
In the event that any condemnation shall not affect the Building in which
the Premises are contained, this Lease shall in no way be affected and Rent
shall in no way xxxxx.
No part of any award for any such taking by condemnation or eminent domain
shall belong to the Tenant and Tenant covenants to execute such instruments of
assignment as shall be necessary or reasonably required by Landlord in any
condemnation or eminent domain proceedings, if so requested, and to turn over to
Landlord any damages that may be recovered in such proceedings. Any award,
however, for damages for trade fixtures installed by Tenant or anyone claiming
under Tenant at its own expense and which are not part of the realty shall
belong to the Tenant.
The Landlord shall have the absolute right to settle any claim in
condemnation proceedings without interference from Tenant and without any
obligation to Tenant, and Landlord shall have the absolute right to make a
conveyance of title of the real property being taken by condemnation proceedings
to the public or quasi public authority having the power of eminent domain in
lieu of the condemnation proceedings, and where said conveyance is made in lieu
thereof, it shall have the same force and effect herein as if the condemnation
proceedings had proceeded to full and final completion.
A conveyance of title in lieu of such proceedings shall not be made prior
to the actual commencement of proceedings or the filing of formal notice of the
taking.
Article A-18. Miscellaneous
A-18.01 Any reference in the printed portion of this Lease to the City of
New York and the Administrative Code of the City of New York shall, where
applicable, be deemed to refer to the ordinances, rules and regulations of the
county, town and other governmental authorities with jurisdiction over the
Premises.
A-18.02 If any term or provision of this Lease or the application thereof
to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby. Each term and provision
of this Lease shall be valid and enforceable to the fullest extent permitted by
law.
A-18.03 This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
A-18.04 Any conflict between the printed form and Riders which together
constitute this Lease shall be resolved in favor of the provisions of such
Riders.
A-18.05 The submission of this Lease for examination or the negotiation of
the transaction described herein or the execution of this Lease by only one of
the parties will not in any way constitute an offer to lease on behalf of either
Landlord or Tenant, and this Lease shall not be binding on either party until
duplicate originals thereof, duly executed on behalf of both parties, have been
delivered to each of the parties hereto.
A- 18.06 If Landlord shall make application to any bank, insurance company
or other lender for a mortgage loan to be secured in part or in whole by the
Building and such third party requires a certified financial statement of Tenant
or other reasonable documentation of Tenant's financial condition, Tenant shall
furnish the same to Landlord promptly after Landlord's request.
A-18.07 Unless the Premises shall include the Property in its entirety,
Landlord reserves the right to extend or add additional floors to or otherwise
alter the Building, and/or create such additional tenancies in the Building, as
Landlord may from time to time determine, provided the same shall not physically
reduce the Premises.
A-18.08 Neither this Lease nor any memorandum hereof shall be recorded
without Landlord's prior written consent.
A-18.09 Each provision of this Lease which requires the consent or approval
of Landlord shall be deemed to require the same in each instance in which such
provision may be applicable. Any consent or approval by Landlord to or of any
act or omission by Tenant requiring Landlord's consent or approval, shall not be
deemed to waive any future requirement for such consent or approval to or of any
subsequent similar act or omission. With respect to any provision of this lease
which provides, in effect, that Landlord shall not unreasonably withhold or
unreasonably delay any consent or any approval, Tenant shall in no event be
entitled to make, nor shall Tenant make, any claim for, and Tenant hereby waives
any claim for money damages; nor shall Tenant claim any money damages by way of
setoff, counterclaim or defense, based upon any claim or assertion by Tenant
that Landlord has unreasonably withheld or unreasonably delayed consent or
approval, but Tenant's sole remedy shall be an action or proceeding to enforce
any such provision, or for specific performance, injunction or declaratory
judgment.
A-18.10 Tenant shall not, without Landlord's prior written consent, use,
occupy, have any right to use or occupy, or otherwise have any interest in or to
any space in the Building other than the Premises.
A-18.11 Tenant shall not, without Landlord's prior written consent, install
or maintain, or permit any other party to install or maintain, any vending
machines, pinball games, video games or any other mechanical or electronic
device of any nature whatsoever, whether for the dispensing of food or other
products or the provision of entertainment. Nothing in this Section A-18.11,
however, shall prohibit Tenant from using mechanical or electrical equipment in
its business.
A-18.12 Tenant shall not permit any trailer, truck or other vehicle to be
parked, stored or otherwise present on or about the Property, except that Tenant
may allow a vehicle to temporarily park on the Premises solely for the purposes
of loading and unloading. Tenant shall, at its own cost and expense, maintain in
good condition and repair any loading platform, truck dock and or truck
maneuvering space which is used exclusively by Tenant or to which Tenant has the
right of exclusive use.
A-18.13 No interruption or malfunction of any utility services for any
cause whatsoever shall constitute an eviction or disturbance of Tenant's use and
possession of the Premises, or a breach by Landlord of any of its obligations
hereunder or render Landlord liable for any damages (including, without
limitation, consequential and special damages), or entitle Tenant to be relieved
from any of its obligations hereunder (including, without limitation, the
obligation to pay Rent) or grant Tenant any right of set-off or recoupment. In
the event of any such interruption of any such services, Landlord shall use
reasonable diligence to restore such service in any circumstances in which such
interruption is caused by Landlord's fault.
A-18.14 If Tenant shall at any time fail to pay the water meter charges
after demand therefor by the Landlord, the Landlord shall have the right, at its
election, to terminate and discontinue all water service to the Premises
including the right to remove the water meter from the Premises. Tenant shall
bear all costs of removal of the meter and/or discontinuance of service and all
costs to restore the meter and of resuming service.
A-18.15 Intentionally Omitted.
A-18.16 Intentionally Omitted.
A-18.17 Notwithstanding any other provision of this Lease, Landlord's
service of notice by way of express mail or courier service shall be deemed
sufficiently rendered so long as it satisfies all other requirements contained
in the notice provision of the printed portion of this Lease, and shall be
deemed given at the time when the same is mailed or delivered, respectively.
A-18.18 If the Premises include a basement, Tenant shall use the same only
for storage purposes.
A-18.19 Tenant must give Landlord advance notice of the date and time when
tenant plans to move in and out of the Building.
A-18.20 Landlord's acceptance at its option of the check of any third party
in payment of Rent or of any other money obligation under this lease shall not
be deemed an acceptance by Landlord of the maker or any endorser of such check
as tenant hereunder or assignee of the Tenant hereunder.
A-18.21 The headings and captions of articles or paragraphs contained in
this Lease and Exhibits and Riders attached hereto are inserted only as a matter
of convenience and in no way define, limit, construe, or describe the scope or
intent of such articles or paragraphs nor in any way affect this Lease.
A-18.22 Both parties acknowledge and agree that this Lease has been
freely negotiated by both parties, and that, in any dispute over the meaning,
interpretation, validity, or enforceability of this Lease or any of its terms or
conditions there shall be no presumption whatsoever against either party by
virtue of that party having drafted this Lease or any portion thereof.
A-18.23 Provided that Tenant does not occupy the entire Building, Landlord
reserves the right at any time to relocate Tenant to another location in the
Building. Landlord shall reimburse Tenant for reasonable moving expenses
incurred in connection with such relocation. Other than such moving expenses,
Landlord shall have no liability whatsoever to Tenant.
Article A-19. Tenant's Representations and Warranties
A-19.01 As material inducements for Landlord entering into this Lease,
Tenant hereby represents and warrants to Landlord that Tenant is a corporation
duly organized and validly existing under the laws of the State of New York; is
legally qualified to do business in the State of New York; the persons executing
and delivering this Lease on behalf of Tenant have been lawfully and duly
authorized to do so; and when so executed and delivered this Lease represents
the valid, binding and legally enforceable obligations of the Tenant.
Article A-20. Locking System
A-20.01 Tenant agrees that it will not change the Key Locking System
currently installed at the Demised Premises, however, Tenant can change the
cylinder. Any exterior locks installed by Tenant shall be known as the "Best
Type" system.
Article A-21.
A-21.01 Tenant shall reimburse Landlord within five (5) days of receipt of
a xxxx from Landlord for all testing and certifications for any mechanical and
electrical devices contained within the Demised Premises and/or the Building,
including but not limited to an RPZ (Back Flow Preventer).
RIDER B
Rent Escalation
Article B-1. Rent Escalation
B-1.01 The Fixed Minimum Rent of Three Hundred Thirty-six Thousand Seven
Hundred Eighty Dollars ($336,780.00) reserved in the preamble to this Lease
shall be increased (the "Recomputed Fixed Minimum Rent") as of the first day of
the second lease year and each subsequent lease year of the Term in accordance
with the following Schedule:
Lease Year Recomputed Fixed Minimum Rent
2 $353,619.00
3 $371,299.95
4 $389,864.94
5 $409,358.18
6 $429,826.08
7 $451,317.38
8 $473,883.24
9 $497,577.40
10 $522,456.27
RIDER C
Provisions of Specific Application
Article C-1. Repairs; Maintenance
C-1.01 Tenant, at its sole cost and expense, shall keep and maintain (a)
the entire interior of the Premises, including, without limitation, all
fixtures, machinery, systems (including, without limitation, heating and
ventilating and air conditioning and sprinkler, if any) attached to or used in
connection with the operation of the Premises, (b) all plumbing lines and
electrical wires (above ground and underground) which serve exclusively the
Premises, (c) all exterior doors, glass windows, and plateglass, and xxxxx for
all of the same, on or leading into the Premises and (d) all sidewalks adjoining
the Premises, and shall keep said sidewalks free and clear of all rubbish, ice,
snow and other debris. Tenant, without limiting the generality of the foregoing,
shall make all non-structural installations, modifications, alterations, repairs
and replacements to the foregoing as may be necessary to keep the same in good
order and condition and to comply with all laws and requirements of utilities.
Further, Tenant shall make any and all non-structural and structural repairs
whatsoever necessitated by the acts or omissions of Tenant, its employees,
agents and/or contractors, including, without limitation, any cleaning and/or
pumping of the Building's sanitary disposal system necessitated by Tenant's
abuse thereof or consumption of water in excess of normal. Such repairs and
replacements shall be done in a good and workmanlike manner with materials at
least equal in quality (but no used materials) to the original construction
materials and, in the case of structural repairs, subject to Landlord's prior
written approval of the materials, methods and contractors to be used or
engaged.
Tenant shall not commit or suffer waste or injury to the Premises. Tenant
shall place all of its refuse and rubbish in a dumpster which Tenant shall
obtain and maintain at the Premises. No trash or other debris shall be permitted
to remain outside of the dumpster. If, in Landlord's opinion the dumpster
maintained by Tenant is insufficient for Tenant's use, Tenant shall at its own
cost and expense obtain either a larger or, if space permits, an additional
dumpster. If Landlord so elects, Landlord may supply a dumpster and/or compactor
and Tenant shall pursuant to C-1.03 be responsible for its Pro-rata Share.
Tenant shall not cause or permit any materials or substances of any nature to be
poured or otherwise deposited in the storm drains and drywells situated about
the Property.
C-1.02 If Tenant shall fail to perform any repairs or maintenance work as
required under this Lease or necessitated by any breach by Tenant of its
covenants hereunder within ten (10) days of Landlord's notice thereof to Tenant,
or immediately in the case of an emergency, or, if such work be of such nature
that it cannot with due diligence be completed within ten (10) days and Tenant
shall not have commenced making such repair within such ten (10) day period and
thereafter prosecuted the same in good faith with due diligence to completion
within a reasonable period of time, Landlord, without any further notice to
Tenant, may perform such work. In such event, Tenant shall pay as Rent the cost
of such work, plus twenty-five percent of the overhead and supervision, on
demand from Landlord. Receipted bills from contractors, materialmen and/or
laborers shall be conclusive proof of the cost thereof.
C-1.03 Landlord shall make all structural and exterior repairs (except
those set forth in Section C-1.01 and, at Landlord's option, those repairs
necessitated by the acts or omissions of Tenant, its employees, agents and/or
contractors) to the Building, and shall maintain and make all necessary repairs
and replacements to the common areas and parking areas, including, without
limitation, the maintenance of appropriate insurance, removal of snow and ice,
necessary repairs to any plumbing lines and electrical wires (above ground and
underground, except those which serve exclusively the Premises or any other
premises in the Building), striping, landscaping, clean-up, bulb, lamp and light
stanchion replacement (excluding any permitted signs of Tenant and other tenants
in the Building), systems maintenance and the cost of rental collection. Tenant
shall be responsible for Tenant's Pro-rata Share of the cost of all work
performed by Landlord under this Section and shall pay Landlord as Rent on
account thereof the Monthly Maintenance Amount, in equal monthly installments in
advance on the first day of the Term and thereafter on the first day of each
month during the Term. Tenant's Pro-rata Share for purposes of this C-1.03 shall
be defined differently then as defined in A-1.18. For purposes of this C-1.03
Tenant's Pro-rata Share shall be calculated as follows: a fraction, the
numerator of which shall be the Rentable Square Footage of the Premises and the
denominator of which shall be the current gross leased area of the Building
including the Premises. Simultaneously with the recomputation of the Minimum
Rent pursuant to Article B-1, Landlord shall recompute the Monthly Maintenance
Amount in the same manner in which the Minimum Rent is recomputed, as set forth
in Section B-1.01. Notwithstanding the foregoing, Tenant shall bear the entire
cost of any repair or maintenance work necessitated by any act or omission of
Tenant, its employees, agents and/or contractors, including, without limitation,
the costs of cleaning and pumping the storm drains and drywells situated about
the Property.
Within one hundred twenty days after the expiration of the first calendar
year during the Term, Landlord shall deliver to Tenant a statement of the actual
cost of such work referred to above. If such statement shows that Tenant has
paid less than Tenant's Pro-rata Share of such costs, then Tenant shall
immediately pay to Landlord the difference. Each calendar year thereafter the
same procedure shall be followed. It is intended that the Monthly Maintenance
Amount shall be the minimum charge to Tenant for Landlord's performance of
maintenance and repair work under this Section.
C-1.04 The term "structural repairs" shall be deemed to mean repairs and
replacements of and to the structural steel, foundation, roof deck and bearing
walls only. The term non-structural repairs shall be deemed to mean all repairs
and replacements other than structural repairs.
C-1.05 Tenant shall pay as Rent on demand Tenant's Pro-rata Share of the
cost of the supervisory service for the Building's sprinkler system, if any.
C-1.06 Tenant shall not cause or permit any individual(s) to enter upon the
roof of the Building without Landlord's express prior written consent. Tenant
shall not allow any grease or other foreign substance to be deposited within the
plumbing system or the HVAC system servicing the Premises, or elsewhere in or
about the Premises.
C-1.07 Tenant shall pay its Pro-rata Share of the cost of maintaining
service agreements for the maintenance of all heating and air conditioning
equipment in or on the roof of the Premises.
C-1.08 Tenant shall at its own expense, comply with all applicable laws,
ordinances and requirements for the sorting or separation of Tenant's garbage.
Article C-2. Utilities
C-2. 01 The term "Utility Charge" shall mean all expenses and costs
incurred by Landlord in connection with the delivery of or provision to the
Premises of gas, electricity, water, heat, steam, hot water and other utilities
supplied to the Premises. Tenant shall pay on the first day of each and every
month during the first year of the Term, in advance, the Monthly Utility Charge.
If at the end of the first lease year of the Term the total Monthly Utility
Charges paid by Tenant shall be less than Tenant's Pro-rata Share of the actual
Utility Charge paid by Landlord for said year, Tenant shall pay the deficiency
to Landlord upon demand. If such payments shall exceed Tenant's Pro-rata Share
of the Utility Charge paid by Landlord for said year, the excess shall be
credited toward the Monthly Utility Charge next coming due. At the end of the
first lease year of the Term, Landlord shall recompute the Monthly Utility
Charge required to be made by Tenant during the second lease year of the term,
said payments to be one-twelfth (1/12) of the total amount of the Utility Charge
Tenant was required to pay during the first lease year of the Term.
A like procedure shall be followed for each succeeding lease year.
Notwithstanding the foregoing, if at any time during any lease year Landlord
shall determine that the Monthly Utility Charge will be insufficient to pay the
Utility Charges as they come due, Landlord may, at its election, require Tenant
to pay the amount of the deficiency in one payment or increase the Monthly
Utility Charge. Monthly Utility Charges under this Section shall be apportioned
at the commencement and expiration of the Term, if necessary.
C-2.02 Tenant shall not apply for any separate utility meter without
Landlord's prior written consent. If and so long as Tenant shall not have any
separate utility meter, Tenant shall pay Landlord as Rent the Monthly Utility
Charge with each installment of Rent. If the rates for any utility are increased
by the utility company furnishingit, the Monthly Utility Charge shall be
increased pro-rata by the same percentage as the rate was increased.
C-2.03 Tenant, at its sole cost and expense, shall maintain all applicable
utility company service lines and meters located in or on the exterior of the
Premises.
Article C-3. Parking Facilities
C-3.01 Unless the Premises shall constitute the entire Building, Tenant
shall cause all of its principals, officers and employees to park Tenant's and
their vehicles (collectively, the "Company Vehicles") solely in areas of the
parking field, if any, designated by Landlord for such purpose. Each and every
violation of this clause shall be deemed a breach of a substantial obligation of
Tenant, and, without limiting Landlord's other remedies therefor, Tenant shall
pay for them as Rent the Daily Late Charge for each motor vehicle parked in
violation of this provision.
C-3.02 Unless Landlord shall at any time designate otherwise, the parking
area(s) behind the rear of the Building shall be the area designated for the
parking of Company Vehicles. Tenant shall, upon Landlord's request, furnish
Landlord with the automobile registrations (year, make and license plate) of all
principals, employees and agents of Tenant who either are employed at or
frequently visit the Premises.
C-3.03 Landlord reserves the right, at any time and from time to time, to
(a) change the size, location, elevation and or nature of the Building's parking
facility, (b) close all or any part of the parking facility as may be necessary,
in Landlord's sole judgment, to prevent a dedication thereof and/or the accrual
of any rights therein of any person or the public, (c) close temporarily all or
any part of the parking facility to discourage non-customer use, (d) establish
and modify and enforce reasonable rules and regulations with respect to the use
of the parking facility, and Tenant shall cause all of its principals,
employees, agents, invitees and licensees to comply with the same; and/or (e)
transfer, in whole or in part, any of the foregoing rights to any party as
Landlord may, from time to time, determine.
C-3.04 Unless the Premises shall constitute the entire Building, Landlord
shall have the right to place self-adhering stickers on or have towed away any
Company Vehicles which are parked in areas other than those designated therefor
by Landlord or which otherwise are not in compliance with any rules and
regulations of Landlord with respect to the parking facilities. In the event of
repeated occurrences of the above, Landlord may terminate this Lease in the
manner herein elsewhere provided. Landlord shall have no liability whatsoever
for towing or stickering Company Vehicles as aforesaid, and Landlord shall use
reasonable efforts to notify Tenant of the first occurrence (only) of the same
before taking any such action.
Article C-4. Signage
C-4.01 Tenant shall not cause or permit the placement or other installation
of any signs on or about the Property which are visible from outside the
Premises without Landlord's prior written approval, and, after the installation
of any such approved sign, Tenant shall not cause or permit the same to be
changed or altered in any respect without Landlord's prior written approval. Any
signs which Landlord may approve shall in all events comply with all applicable
rules and regulations of county, town and other governmental authorities, be of
a dignified character and satisfy such other standards as Landlord may require.
The term "sign" shall be deemed to include, without limitation, any form of
placard, light or other advertising symbol or object whatsoever, whether of a
permanent or temporary nature.
C-4.02 Tenant shall not cause or permit the placement or other installation
of any awning, security gates or bars of any nature in, on or above any window,
door or other opening to the Premises without Landlord's prior written consent.
C-4.03 If the Premises shall not constitute the entire Building and the
Premises shall be situated in whole or in part on the ground floor, Tenant shall
place a sign on the back door, if any, of the Premises, indicating Tenant's name
and the address of the Premises.
C-4.04 Unless the Premises shall constitute the entire Building, Landlord
reserves the right to place a sign or signs on the exterior walls of the
Premises and Building, indicating the name and/or business of other tenants in
the Building.
C-4.05 Notwithstanding any other provision of this Lease, Landlord may
install a pylon directory sign at the entrance to the Property for the benefit
of Tenants. If Tenant elects to place Tenant's name on such pylon sign, Tenant
shall be responsible for paying to Landlord its Pro-rata Share of installation
by Landlord for such sign.
Article C-5. Liability for Hazardous Wastes
C-5.01 Tenant shall not cause or allow to be caused on or about the
Premises any Hazardous Environmental Condition (as hereinafter defined), and
Tenant shall not store, manufacture, dispose of, process, keep, or maintain at
the Premises any substance or material whatsoever which has the potential of
being deemed a hazardous substance or material by any governmental jurisdiction
or authority including, without limitation, the governmental jurisdictions or
authorities described below in the definition of the term Hazardous
Environmental Condition. Tenant and Tenant's principals shall indemnify and hold
harmless Landlord, its officers, directors, principals, successors and assigns
and the Property from and against any and all claims, obligations, liabilities,
violations, penalties, fines, governmental orders, suits, causes of action,
judgments, damages (civil, criminal or both) and all other costs and expenses of
any nature whatsoever including without limitation consultants' fees and
attorneys' fees, which may result from any Hazardous Environmental Condition
caused in connection with Tenant's use or occupancy of the Premises. The term
"Hazardous Environmental Condition" shall mean any condition in, on or under the
Premises arising from or in connection with any source or cause whatsoever,
including, without limitation, the spilling, leaking, leaching, migration,
discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids,
alkalis, toxic chemicals, liquids or gases, petroleum or petroleum products,
waste materials or other irritants, contaminants, pollutants or other substances
of any nature into or upon land, the atmosphere, or any water course or body of
water, or ground water whether sudden and accidental or over a course of time,
which either (a) has caused or has the potential of causing bodily injury or
property damage to any person or thing or (b) is or may hereafter be designated
as a "hazardous waste", "hazardous substance", "regulated waste" or "regulated
substance" or any other term of similar import by any governmental jurisdiction
with authority, including, without limitation, the United States Environmental
Protection Agency, the New York Department of Environmental Conservation and/or
the Nassau County Department of Health, which requires or may hereafter require
the development and implementation of a remedial program, and/or result in the
imposition of fines and/or penalties, and/or impose on the Owner of the Premises
any obligation whatsoever. The foregoing indemnification shall survive the
termination of this Lease, and without limiting the generality of the foregoing,
Tenant and Tenant's principals shall indemnify and hold harmless Landlord from
and against (i) any and all liens for remedial expenses in favor of any federal,
state and/or local governmental authority or municipality and (ii) any and all
legal fees and disbursements incurred in connection with defending any suits or
proceedings pertaining to a Hazardous Environmental Condition including suits to
enforce this Article.
C-5.02 Landlord and its employees and agents shall have the right to enter
the Demised Premises at any time to conduct tests at Tenant's expense and to
inspect the Demised Premises. The purpose of any such tests or inspections shall
be to determine the condition, specifically the environmental condition, of the
Premises and to insure Tenant's compliance with Article C-5.01.
Article C-6. Miscellaneous
C-6.01 The Rentable Square Footage of the Premises has been computed by
measuring at floor level from the outside exterior walls (or, in the case of any
overhang(s) extending from any such wall(s), from the outside, of each such
overhang at the furthest point from said exterior wall) and, if the Premises do
not constitute the entire Building, the midpoint of demising walls, and the
outside (common area side) of demising walls between the Premises and common
corridors and areas, if any.
