Exhibit 10.44
Epstein, Becker, & Green, P.C.
Attorneys at Law
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Xx. Xxx Xxxxxxxx
Correctional Services Corporation
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
January 9, 1996
Re: Agreement of Lease dated as of October 1, 1 996 between
Creston Realty Associates, L.P., Landlord and Correctional
Services Corporation, Tenant
Premises: 0000 Xxxxxxx Xxxxxx, Xxxxx, Xxx Xxxx
Dear Xx. Xxxxxxxx:
I am enclosing two (2) fully executed copies of the Letter Agreement
confirming the Lease effective date of October 1, 1996.
Sincerely,
Xxxxxxx X. Xxxxxxxxx
CORRECTIONAL SERVICES CORPORATION
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Xx. Xxx Xxxxxxxxxx
Creston Realty Associates, L.P.
0000 Xxxxxxx Xxxxxx
Xxxxx, Xxx Xxxx
November 22, 1996
Re: Agreement of Lease dated as of October 1, 1996 between
Creston Realty Associates, L.P., Landlord and Correctional
Services Corporation, Tenant
Premises: 0000 Xxxxxxx Xxxxxx, Xxxxx, Xxx Xxxx
Dear Xx. Xxxxxxxxxx:
This letter will serve to confirm that the Tenant has occupied the Premises
and the Lease is effective as of October 1, 1 996 in accordance with its terms.
The Landlord acknowledges that $50,000 payment deposited upon the execution of
the Lease shall be applied to the rent as the same accrues pursuant to the terms
of the Lease.
Please acknowledge your assent to the foregoing by signing this letter in
the space provided for below.
ACKNOWLEDGED AND AGREED TO:
CRESTON REALTY ASSOCIATES
By:______________________________
CORRECTIONAL SERVICES CORPORATION
By:______________________________
CORRECTIONAL SERVICES CORPORATION
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Xx. Xxx Xxxxxxxxxx
Creston Realty Associates, L.P.
0000 Xxxxxxx Xxxxxx
Xxxxx, Xxx Xxxx
November 22, 1996
Re: Agreement of Lease dated as of October 1, 1996 between
Creston Realty Associates, L.P., Landlord and Correctional
Services Corporation, Tenant
Premises: 0000 Xxxxxxx Xxxxxx, Xxxxx, Xxx Xxxx
Dear Xx. Xxxxxxxxxx:
This letter will serve to confirm that the Tenant has occupied the Premises
and the Lease is effective as of October 1, 1996 in accordance with its terms.
The Landlord acknowledges that $50,000 payment deposited upon the execution of
the Lease shall be applied to the rent as the same accrues pursuant to the terms
of the Lease.
Please acknowledge your assent to the foregoing by signing this letter in
the space provided for below.
ACKNOWLEDGED AND AGREED TO:
CRESTON REALTY ASSOCIATES
By:
---------------------------------
CORRECTIONAL SERVICES CORPORATION
AGREEMENT OF LEASE dated as of October 1, 1996, by and between Creston
Realty Associates, L.P., whose address is 0000 Xxxxxxx Xxxxxx, Xxxxx, Xxx Xxxx,
for itself, its heirs, executors, administrators, trustees, successors, assigns
and legal representatives (hereinafter referred to as "Landlord"), and
Correctional Services Corporation, a Delaware corporation whose address is 0000
Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as
"Tenant").
WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord,
the entire building, and improvements erected, situate, lying and being in the
Borough of the Bronx, City and State of New York, bounded and described in
Exhibit "A" annexed hereto and hereby made a part hereof.
SAID PREMISES being known as 0000 Xxxxxxx Xxxxxx, Xxxxx, Xxx Xxxx. The
premises shall be referred to herein as the "Demised Premises".
TOGETHER with the equipment, furniture, furnishings, fixtures, chattels,
stock of supplies and linens owned by Landlord and now contained in the Demised
Premises, if any, and used in the operation of the Demised Premises, all of
which are listed and described in Article 7B hereof.
IT IS FURTHER MUTUALLY COVENANTED AND AGREED that this Lease is made upon
the foregoing and the following terms, covenants, conditions, provisions,
agreements and limitations, all of which Tenant covenants and agrees to perform
and observe.
I . Service Contracts
The existing, service and other contracts entered into by Landlord in
respect of the Demised Premises, if any, are set forth in Exhibit "B" annexed
hereto and hereby made a part hereof.
2. Term
A. Except as set forth in Article 231 hereof, the term of this Lease shall
be two (2) years continuing as of October 1, 1996 (the "Commencement Date") and
terminating at 11:59 P.M. on September 30, 1998, both dates inclusive, unless
this Lease is sooner terminated or extended as hereinafter provided.
B. Provided the Tenant is not then in material default (after the
expiration of any applicable grace or cure periods) under the terms of this
Lease, the Tenant shall have the right to renew this Lease for an additional
term of one (1) year, commencing October 1, 1998, and terminating September 30,
1999, upon the same terms and conditions herein contained; except that the Base
Rent shall be increased by five percent (5%) over the rental payable in the
preceding year, payable in equal monthly installments. The Tenant agrees to
exercise such option on at least sixty (60) days prior written notice to
Landlord by certified mail. The failure to give such timely notice shall be
deemed a waiver by the Tenant of its right to exercise such option.
C. Provided the Tenant is not then in material default (after the
expiration of any applicable grace or cure periods) under the terms of this
Lease, the Tenant shall have the right to renew this Lease for an additional
term of one (1) year, commencing October 1, 1999, and terminating September 30,
2000 upon the same terms and conditions herein contained; except that the Base
Rent shall be increased by five percent (5%) over the rental payable in the
preceding year, payable in equal monthly installments. The Tenant agrees to
exercise such option on at least sixty (60) days prior written notice to
Landlord by certified mail. The failure to give such timely notice shall be
deemed a waiver by the Tenant of its right to exercise such option.
D. Provided the Tenant is not then in material default (after the
expiration of any applicable grace or cure periods) under the terms of this
Lease, the Tenant shall have the right to renew this Lease for an additional
term of one (1) year, commencing October 1, 2000, and terminating September 30,
2001 upon the same terms and conditions herein contained; except that the Base
Rent shall be increased by five percent (5%) over the rental payable in the
preceding year, payable in equal monthly installments. The Tenant agrees to
exercise such option
on at least sixty (60) days prior written notice to Landlord by certified
mail. The failure to give such timely notice shall be deemed a waiver by the
Tenant of its right to exercise such option.
3. Use
Tenant shall at all times operate the Demised Premises in Occupancy there
for set forth in Article 13 hereof Subject to Landlord's prior written consent
or approval shall not be unreasonably withheld or delayed, Tenant shall have the
right to amend the Certificate of Occupancy to conform to its use of the
premises, provided that Tenant shall bear the entire cost of any alterations to
the Demised Premises resulting from Tenant's use, or intended use of the
premises.
4. Base Rent: Additional Rent
A. Except as otherwise expressly provided in this Lease, Tenant shall pay
to Landlord during the first two years of the term hereof a net rent (the "Base
Rent") of One Hundred and Eighty Thousand Dollars ($I 80,000) per annum, payable
in equal monthly installments in advance on the first day of each month, except
that no Base Rent shall be payable for the months of October and November of
1996. The Base Rent does not include real estate taxes imposed by the City of
New York on the Demised Premises, nor does it include any other taxes,
assessments, water rents, sewer rents and charges, duties, impositions, license
and permit fees, charges for public utilities of any kind, payments and other
charges of every kind and nature, together with interest and penalties thereon,
all of which shall be paid by Tenant when due as of the Commencement Date.
Nothing contained herein, however, shall obligate Tenant to pay any income,
transfer or corporate franchise taxes imposed upon Landlord, nor to pay any such
taxes, charges or assessments imposed upon the Demised Premises with respect to
periods prior to the Commencement Date of this Lease.
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B. Contest of Taxes and Assessments
Tenant shall have the right to contest the validity or amount of real
estate taxes or assessment (if necessary, with the cooperation of Landlord),
Tenant shall bear the cost of any such application or contest.
C. Certificate or Statement of Authorities as Prima Facie Evidence
Any official certificate or statement issued or given by any sovereign,
governmental, city or municipal authority, or any department, bureau, board or
officer thereof or of any public utility, setting forth any tax, assessment,
water rents, sewer rents and charges, duties, impositions, license and permit
fees, charges for public utilities of any kind, payments and other charges of
every kind and nature, together with interest and penalties thereon, the payment
of which is the obligation of Tenant as herein before provided, shall be prima
facie evidence for all purposes of this Lease, of the existence, amount and
validity of such tax, assessment, water rents, sewer rents and charges, duties,
impositions, license and permit fees, charges for public utilities of any kind,
payments of and other charges of every kind and nature.
D. Interest On Required Payments Made by Landlord
Any and all payments which may be required to be made by Tenant under this
Lease may be made by Landlord, whether for premiums on policies of insurance as
hereinafter provided for and required to be obtained and maintained by Tenant,
or in respect of any other provision under this Lease pursuant to which payments
other than insurance premiums may be made by Landlord for and on behalf of
Tenant, or which payments may be made by Landlord in default of Tenant's making
the same and as to which Tenant may be required to make any such payment under
this Lease. Landlord shall first give to Tenant five (5) business days written
notice by certified mail (unless the time available to make such payment is
shorter), of its intention to make such payment on behalf of the Tenant and if
the Tenant falls within such period to cure its default, Landlord may make same
as provided above. Any such amount paid by Landlord shall, in each such case, be
deemed to be and shall become, together with interest thereon at the rate of one
percent (1%) per month, Additional Rent, and the amount of such payment,
together with interest thereon, may, at Landlord's option exercised by notifying
Tenant of the amount due, be added to the Base Rent falling due on the first day
of the month next ensuing; the payment by Landlord of any sum or sums and shall
then and in such event be deemed Additional Rent payable by Tenant to Landlord
in addition to the foregoing provisions and payments required hereunder.
E. Real Estate Taxes
The Tenant agrees to pay as Additional Rent any real estate taxes assessed
or imposed against the Demised Premises, such taxes to be paid by the Tenant to
Landlord ten (10) days prior to the time that Landlord is required to pay same
to the taxing authority. Real Estate taxes shall mean all real estate taxes,
school taxes, water and sewer charges, vault taxes and charges assessed upon the
real property. Upon written request by Tenant made after its payment of such
Additional Rent, Landlord shall provide Tenant with proof of its payment of such
taxes.
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F. Manner of Payment
All Base Rent, Additional Rent and other sums and charges to be paid by
Tenant to Landlord under this Lease shall be paid in such currency of the United
States of America as at the time of payment shall be legal tender for payment of
public and private debts, c/o Xxx Xxxxxxxxxx, 0000 Xxxxxx X, Xxxxxxxx, X.X.
00000, or at such other place(s) as Landlord may from time to time designate
upon written notice to Tenant.
5. Rent Payable Without Set-Off
Tenant will pay the Base Rent and Additional Rent (including real estate
taxes) as set forth in Article 4 hereof at the time and in the amount herein
before provided, by paying the same without any set-off, counterclaim,
deduction, notice or demand except as herein otherwise specifically provided, to
Landlord or to such person or entity as may from time to time be specified in
this Lease or designated in writing by Landlord. Tenant shall and will, during
the term hereby demised, well and truly pay, or cause to be paid, to Landlord,
all such other sums as may become due from, or payable by, Tenant, at the times
and in the manner herein provided; and Landlord, at its option, may deem all
other sums as Additional Rent payable hereunder, together with interest thereon
at the rate of one percent (1%) per month, payable from the tenth business day
after notice is given that any such sum is due and payable as Additional Rent
hereunder; and, in the event of nonpayment thereof, Landlord shall have the
rights and remedies herein provided for in the case of nonpayment of Base Rent
or Additional Rent, or of a breach of condition or covenant.
6. Tenant To Take Premises In An As Is Condition
A. It is specifically understood and agreed that the Tenant takes the
premises in its present physical condition subject to any and all
violations whether of record or not after a full, complete and independent
inspection of the premises and Tenant agrees that during the term of this Lease
not to call upon the Landlord for any repairs, renovations, decorations,
alterations, except as herein specifically set forth in Articles 8 and 54
herein.
B. Except as otherwise set forth herein to the contrary, Tenant accepts the
buildings and improvements together with the furniture, furnishings, fixtures,
chattels and equipment (as described in Article 7B hereof), if any, in, on and
about the Demised Premises in their present condition, "AS IS", and without any
representation or warranty by Landlord as to the condition of said buildings or
improvements or as to the use or occupancy which may be made thereof, and
Landlord shall not be responsible for any latent defect or change of condition
in the buildings or improvements, furniture, furnishings, fixtures, equipment
and chattels, except to the extent that such items are the responsibility of
Landlord, as set forth in Article 8 hereof
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C. Except as otherwise set forth herein to the contrary, the Base Rent,
Additional Rent and other sums and charges payable hereunder shall in no event
be withheld or diminished on account of any defect in the building, or of the
personal property and equipment contained therein, nor for any change in its
condition, nor for any damage occurring thereto nor because of the existence of
any violations in any municipal or other governmental departments.
7. Ownership and Repair of Personal Property
A. All personal property purchased or installed by the Tenant over and
above the personal property currently in the premises, if any, shall be and
remain the property of the Tenant at the expiration of the Lease or of any
renewal thereof, as set forth in Article 26 hereof
B. Except as otherwise provided herein, the property covered by this Lease
shall include all partitions, engines, motors, dynamos, boilers, elevators,
bathtubs, water closets, ranges, stoves, and heat, air conditioning, television
receivers and equipment, refrigeration, plumbing, gas and electric equipment and
fixtures, vacuum cleaning system, sprinkler system and other fire prevention or
extinguishing- equipment and materials, if any, all as now or hereafter
contained in the Demised Premises.
8. Repairs and Replacements
A. Tenant represents and covenants, at its own cost and expense, to make
any and all changes, alterations, repairs or replacements, ordinary or
extraordinary, structural or otherwise, foreseen or unforeseen, necessary to
keep in reasonable physical condition the buildings and improvements on the
Demised Premises now standing and hereafter erected, inside and outside,
including, but not limited to, repairs to foundations, sidewalks, walls, floors,
ceilings, elevators, vaults, window glass, gas pipes, wires or conduits for
electricity, whether inside, in front of, or appurtenant to the Demised
Premises, such repairs, replacements or renewals to be at least the equal in
quality of materials and workmanship as those replaced. Tenant will maintain,
repair and/or replace the elevator system (including all of its components), the
boiler and/or the roof, if necessary. Tenant will also be responsible to
maintain and/or repair the water and sewer connections to the Demised Premises.
B. The Tenant, at its sole cost, shall have the right to renovate the
premises as it sees fit, providing, however, and on condition that all work is
done in full conformity with the various state, federal and municipal
departments having jurisdiction thereover. If any such renovations shall reduce
the number of rentable units in the Demised Premises, or shall limit the amount
of rent which may be otherwise charged for any unit(s), then, at the expiration
of the term of this Lease as set forth in Article 2 hereof or at the expiration
of any renewal of this Lease, or the termination of this Lease pursuant to
Article 23 or any other provision of this Lease, Tenant agrees, at its sole
cost, to restore the premises to its former condition, or, at Tenant's option,
to remit to the Landlord the reasonable cost of such restoration. In the event
that Tenant causes the Certificate of Occupancy set forth in Article 13 to be
amended, Tenant agrees, at its
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sole cost, to cause such Certificate of Occupancy to be restored to its
former provision (provided that such former provision shall then be permitted by
law or by the zoning resolution then in effect) at the expiration of any renewal
of this Lease, or the termination of this Lease pursuant to Article 23 or any
other provision of this Lease. If such restoration shall not be permitted by law
at such time, Tenant shall reimburse Landlord for any losses occasioned to
Landlord as a result of such alterations.
C. Any structural changes to the Demised Premises that shall be required as
a result of generally applicable changes to governmental regulations of any
governmental body having jurisdiction thereover shall be the responsibility of
Landlord. If Landlord reasonably determines that the cost of such changes does
not warrant making such changes, Landlord may terminate this Lease upon sixty
(60) days prior written notice to Tenant without penalty and the otherwise
applicable provisions of this Lease regarding terminations shall be applied as
if the Lease had otherwise terminated on such date.
9. No Waste
Tenant shall not commit or suffer waste or injury to the Demised Premises
and shall keep the sidewalks, curbs and alleys adjacent to the Demised Premises
in good repair and unobstructed, clean and free of rubbish, ice and snow.
10. Waiver of NYL Section 227
If any buildings or improvements, now or hereafter constructed and
maintained upon the Demised Premises, shall be destroyed or so damaged or
injured by fire or other hazard or casualty as to be untenantable and unfit for
occupancy in whole or in part, then, except as otherwise provided in this Lease,
such fact shall not affect the provisions of this Lease, any law, rule or
regulation to the contrary notwithstanding, Section 227 of the Real Property Law
of the State of New York or any other law of similar nature, extent and context
expressly applicable hereto being hereby expressly waived by Tenant. Tenant
hereby agrees that its obligations, covenants and agreements, including the
payment of Base Rent, Additional Rent and other sums and charges with respect to
the portion of the Demised Premises that were not destroyed or injured shall
continue the same as though said buildings and improvements or any of them had
not been destroyed or injured, and without abatement of any kind, except as set
forth in Article 15 or as otherwise provided in this Lease. Tenant will obtain
insurance with respect to its obligations under this Lease, of the type known as
rent insurance or loss of business insurance.
11. Compliance With Laws
Except as set forth in Article 8C hereunder, Tenant covenants to execute
and comply in all material respects with any and all laws, statutes, ordinances
and regulations, federal, state, county or municipal, now or hereafter in force
applicable to the Deposed Premises, relating to use or occupancy thereof or to
the making of repairs thereto or of changes, alterations or improvements
therein, ordinary or extraordinary, structural or otherwise, foreseen or
unforeseen, including without limitation the performance of any duty imposed
upon Landlord or
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Tenant by such laws, statutes, ordinances or regulations in respect to the
sidewalk, curb, street, vault or alley adjacent to the Demised Premises. Tenant
also covenants to comply in all material respects with any and all rules and
regulations applicable to the Demised Premises issued by the New York Board of
Fire Underwriters and/or the New York Fire Insurance companies writing policies
covering the Demised Premises which are applicable thereto. Tenant shall pay all
costs, expenses, claims, fines, penalties and damages that may in any manner
arise out of or be imposed because of the failure of Tenant to comply with this
Article, and in any event, agrees to indemnify and save Landlord free and
harmless of and from all liability with reference to the same, except to the
extent that such costs, expenses, claims, fines, penalties and damages are
caused by Landlord's failure to perform its obligations under Article 8 hereof.
Landlord or Tenant shall each promptly give written notice to the other
party of any notice of violation received by it. Without diminishing the
obligation of Tenant, if Tenant shall at any time fail or neglect to materially
comply, to the extent reasonably appropriate and as expeditiously as reasonably
feasible, with any of said laws, rules, orders, requirements, directions,
ordinances or regulations concerning or affecting the Demised Premises, or the
use and occupation thereof, or of any building thereof, as herein before
provided, and, if a stay is necessary, shall have failed to obtain a stay or
continuance thereof, then Landlord, in addition to any other remedies hereunder
shall be free to comply therewith, and expenses resulting therefrom shall be
borne and paid by Tenant and upon Tenant's failure so to pay, then Landlord may,
at its sole option, pay the same, and any payments so made by Landlord, together
with interest thereon to be computed at the rate of one percent (1%) per month,
from the date of payment, shall be considered as Additional Rent, and shall
entitle Landlord to enforce any of the terms, provisions, conditions, and
covenants herein contained that may be applicable to such Additional Rent.
Tenant may, however, contest by means of due legal proceedings the validity of
any such law, rule, order, ordinance or regulations, and refrain from compliance
therewith during such contest, provided that such noncompliance shall not
constitute a crime or misdemeanor on the part of Landlord.
12. No Liens
A.Tenant will not create or permit to be created or to remain, and will
discharge, any lien, encumbrance or charge levied on account of any imposition
of any mechanic's, laborer's or material man's lien upon the Demised Premises or
any part thereof or the income therefrom, resulting from any work or alterations
performed by Tenant, having any priority or preference over or ranking on a
parity with the estate, rights and interest or Landlord in the Demised Premises
or any part thereof or the income therefrom, and Tenant will not suffer any
other matter or thing whereby the estate, rights and interest of Landlord in the
Demised Premises or any part thereof might be impaired.
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A. If any mechanic's, laborer's or materialman's lien shall at any time be
filed against the Demised Premises or any part thereof, Tenant, within thirty
(30) days after notice of the filing thereof, will cause the same to be
discharged of record by payment, deposit, bond order of a court of competent
jurisdiction or otherwise, provided that such lien arose as a result of Tenant's
activities at the Demised Premises after the Commencement Date. If Tenant shall
fail to cause such lien to be discharged within the period aforesaid, then, in
addition to any other right or remedy, Landlord may, but shall not be obligated
to, discharge the same either by paying the amount claimed to be due or by
obtaining the discharge of such lien by deposit or by bonding proceedings. In
such event, Landlord shall be entitled, if Landlord so elects, to compel the
prosecution of an action for the foreclosure of such lien by the lien or and to
pay the amount of the judgment in favor of the lienor with interest, cost and
allowances. Any amount so paid by Landlord and all reasonable costs and expenses
incurred by Landlord in connection therewith, together with interest thereon at
the rate of one percent (1%) per month, from the respective dates of Landlord's
making of the payment or incurring of such reasonable costs and expenses, shall
constitute Additional Rent payable by Tenant under this Lease and shall be paid
by Tenant to Landlord on demand. Nothing herein contained shall obligate Tenant
to pay or discharge any lien created by Landlord.
C. Nothing in this Lease contained shall be deemed or construed in any way
as constituting the consent or request of Landlord, express or implied, by
inference or otherwise, to any contractor, subcontractor, architect, laborer,
engineer or materialman for any specific improvement alteration to or repair of
the Demised Premises or any part thereof, and the personal property hereby
leased.
13. No Use In Violation of Certificate of Occupancy
During the term of this Lease, Tenant will not use or keep or allow the
Demised Premises or any portion thereof or any building or improvements now or
hereafter erected or maintained thereon, to be used or occupied for any unlawful
purpose or in violation of any Certificate of Occupancy covering or affecting
the use of the Demised Premises or any portion thereof, or any buildings or
improvements now or hereafter erected thereon, as the same may be amended from
time to time (the "Certificate of Occupancy"). Tenant will not suffer any act to
be done or any condition to exist on the Demised Premises or any portion thereof
or any building or improvement now or hereafter erected thereon, which shall in
law constitute a nuisance, public or private, or which shall make void or
voidable any insurance then in force on the Demised Premises. Tenant shall have
the right to amend the Certificate of Occupancy to conform to its use of the
premises, provided that Tenant shall bear the entire cost of any alterations to
the Demised Premises resulting from Tenant's use, or intended use of the
premises.
14. Assignment and Subletting
A. Except as provided in Paragraph C herein or otherwise in this Lease,
Tenant expressly covenants and agrees that Tenant shall not assign or underrate
all or substantially all of the Demised Premises, without the prior written
consent of Landlord in each instance, which consent shall not be unreasonably
withheld or delayed. If this Lease shall be assigned, or if the Demised Premises
or any part thereof be underrated or occupied by any person or entity other than
Tenant, Landlord may, after default in respect of the payment of rent by Tenant,
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collect rent from the assignee, under tenant or occupant, and apply the net
amount so collected to the rent herein reserved, but no such assignment,
underletting, occupancy or collection of rent shall be deemed a waiver of this
covenant, the acceptance of the assignee, under tenant 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 formal written consent by Landlord to an
assignment or underletting shall not in any manner be construed to relieve
Tenant from obtaining the express consent in writing of Landlord to any further
assignment or underletting of this Lease. If Tenant hereunder shall be a
corporation, the provisions of this Article 14 shall not apply to an assignee,
under tenant or occupant that owns 100% of the outstanding shares of Tenant or
to a corporation whose shares are owned 100% by Tenant.
B. Tenant further expressly covenants and agrees that notwithstanding
anything to the contrary contained in this Lease, the sale or transfer, by one
or more transfers at any time (if effected on a concerted basis), of more than
fifty (50%) percent of the total outstanding shares in any corporation which may
be the Tenant under this Lease, or the sale or transfer at any time of more than
fifty (50%) percent of the total equity interests in any partnership, joint
ventures or other unincorporated association which may be Tenant under this
Lease, shall, in each case, be deemed to be an assignment of this Lease within
the meaning and intent of the provisions of this Article. Notwithstanding the
foregoing, the transfer or assignment of any such shares of stock or equity
interests solely by reason of the death of a stockholder, partner, joint
venturer or member to his or her heirs, distributees or legal representatives,
or any inter vivos transfers or assignments of shares of stock or equity
interests to members of the immediate family of such stockholder or equity
holder, or any transfer among existing stockholders, partners, joint venturers
or members of any other unincorporated association, or any such transfer of
shares or equity interest to third parties aggregating less than fifty (50%)
percent of the total interests thereof, shall not, in any such case, be deemed
an assignment or sale of such shares of stock or partnership, joint venture or
other unincorporated association interest for purposes of this Article.
Any violation of the provisions of this Article shall entitle Landlord to
exercise any and all of the default and remedy provisions now contained in this
Lease after the applicable notice and grace periods.
C. Except as otherwise provided herein, Tenant may assign the Lease to any
unaffiliated person or entity, but only for the use of the Demised Premises for
the specific purposes set forth in Article 3 hereof and for no other purposes,
and Tenant may assign this Lease only subject to and by assignment shall be
binding upon Landlord nor shall it have any force or effect, either in law or in
equity, or convey any interest of Tenant in this Lease, unless and until each of
said following conditions are complied with:
(i) any such assignment hereof shall be subject to Landlord's prior written
consent,which consent Landlord covenants and agrees will not unreasonably be
withheld or delayed;
(ii) that at the time of any such assignment, the Tenant/assignor shall not
then be in default hereunder in respect of the payment of monies due the
Landlord for Base Rent or Additional Rent of any kind beyond the applicable
grace periods with respect thereto;
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(iii) such assignment shall be evidenced by an instrument of assignment and
assumption duly executed and acknowledged in triplicate original copies by
Tenant/assignor and its assignee ("such assignee"), pursuant to which
Tenant/assignor assigns this Lease to such assignee, and such assignee accepts
the assignment thereof and assumes and agrees to perform all the terms and
provisions in this Lease contained to be kept, observed and performed by Tenant
hereunder from and after the effective date of such assignment, and an executed
and acknowledged duplicate original of such instrument, together with the
address of such assignee, shall be delivered to Landlord and
(iv) Tenant shall pay to Landlord monthly as Additional Rent ten percent
(10%) of the amount by which the rent being paid to Tenant by such assignee
exceeds the amount payable by Tenant to Landlord as Base Rent under the terms of
this Lease.
Tenant covenants and agrees that no assignment made pursuant to the
provisions of this Article shall in any way release or be deemed to release
Tenant herein named, or any assignee of the interest of Tenant in this Lease,
and requires that Tenant and all assignees of Tenant's interest shall at all
times throughout the term of this Lease continue to be and remain jointly and
severally and primarily liable for the full performance of all of the
obligations of this Lease on the part of Tenant to be performed, observed and
complied with from the date of the execution of this Lease through the term
hereof.
D. Whenever Landlord's consent shall be required hereunder, Tenant shall
deliver to Landlord written notice by certified mail, return receipt requested,
of the proposed assignment of this Lease at least twenty (20) business days (the
term "business days" as used in this Lease shall mean consecutive days exclusive
of Saturdays, Sundays and legal holidays which are statewide in the State of New
York) prior thereto, which notice shall include and be accompanied by the
following information:
(i) the name and address of the proposed assignee; and
(ii) the names and business experience of principal or principals of the
proposed assignee who will be active in the operation of the business at the
Demised Premises by the proposed assignee and their respective percentages of
equity interest in the proposed assignee.
Landlord agrees, within a period of ten (10) business days after its
receipt of the aforementioned notice of the proposed assignment, to notify
Tenant in writing, by certified mail, return receipt requested, either: (a) that
Landlord is willing to thereafter give its formal written consent to the
proposed assignment of this Lease, provided that all of the conditions precedent
to the delivery of a formal consent in writing set forth in this Article are
first fully complied with; or (b) that Landlord is not willing to give its
consent to the proposed assignment of this Lease. In addition, if Landlord sends
no written notice at all to Tenant within said period of ten (1O) business days
as to whether or not Landlord is willing to thereafter give its formal written
consent to the proposed assignment of this Lease, then Landlord shall be deemed
to have given its formal written consent hereunder to such proposed assignment
of this Lease.
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E. If Tenant shall deem itself aggrieved by Landlord's failure or refusal
to consent to the proposed assignment of this Lease by Tenant, Tenant shall have
the right to submit the issue of Landlord's failure or refusal to affirmatively
consent in writing to such assignment to arbitration in accordance with Article
34 hereof
15. Insurance: Repair and Restoration
A. Tenant shall throughout the term of this lease, at its own cost and
expense, provide and keep in force for its own benefit, insurance against loss
or damage or injury or destruction to or of any building or buildings now or
hereafter erected on the leased premises, together with the furniture,
furnishings and equipment therein, if any, resulting from fire or from any
hazard included in the so-called extended coverage endorsement from such
insurance companies authorized to engage in insurance business in the State of
New York, which policies shall provide that the loss, if any, shall be payable
to Tenant, except as hereinafter provided. All such policies shall name Landlord
as additional insured and an original copy of such policy shall be provided to
Landlord. Tenant shall also insure that the interest of the holder of a Fee
Mortgage be protected by proper endorsement to any such policies. Tenant may
carry such insurance under blanket policies and shall in such case provide
Landlord with a certificate evidencing such coverage.
B. Tenant shall likewise observe and comply with the requirements of all
policies of insurance at any time in force with respect to the Demised Premises
and the personal property hereby leased.
C. No destruction of or damage, to the Demised Premises, or any part
thereof, by fire or other casualty, shall terminate or permit Tenant to
surrender this Lease or shall relieve Tenant from its obligation to pay the Base
Rent and Additional Rent and other sums and charges payable hereunder with
respect to the portion of the Demised Premises that were not damaged or
destroyed, or from any of Tenant's other obligations under this Lease, and
Tenant hereby waives any rights now or hereafter conferred upon it by statute or
otherwise to cancel or surrender this Lease or to quit or surrender the Demised
Premises, or any part thereof, or to any suspension, diminution, abatement or
reduction of Base Rent or Additional Rent with respect to the portion of the
Demised Premises that were not damaged or destroyed, on account of any such
destruction or damage, except as otherwise provided in this Lease. Tenant will
obtain insurance with respect to its obligations under this Lease, of the type
known as rent insurance or loss of business insurance.
D. If there shall be less than sixty (60) days remaining to the end of the
Lease term hereunder (including any extensions thereto as to which Tenant shall
have given Landlord the notice required by Article 2B, 2C, or 2D), Tenant may,
in lieu of making such repair and restoration terminate this Lease upon thirty
(30) days prior written notice to Landlord without penalty and the otherwise
applicable provisions of this Lease regarding terminations shall be applied as
if the Lease had otherwise terminated on such date. Tenant shall in such case
promptly remit to Landlord any insurance proceeds and payments received as a
result of such damage or destruction.
16. Comprehensive General Public Liability Insurance, Steam Boiler, War
Damage, Sprinkler and Rent and other Insurance
11 A. Tenant also covenants to obtain for the benefit of Landlord, at its
sole cost and expense, comprehensive general public liability insurance coverage
of the Demised Premises, including the sidewalks, alleys, curbs, and vaults, if
any, adjoining the Demised Premises, in the customary form, from insurance
companies satisfying the requirements of Article 15 hereof, in limits of
liability (including coverage under umbrella liability policies) of not less
than $2,000,000 per occurrence for property damage, and to pay all of the
premiums thereon.
B. Tenant, at its sole cost and expense, during the entire term of this
Lease will have professional insurance commercially available (such as
malpractice insurance or liability insurance) covering Landlord and Tenant for
any act of Tenant dealing with its activities in the premises.
C. Tenant will also obtain insurance with respect to its obligations
under this lease, of the type known as rent insurance or loss of business
insurance.
D. All policies required to be obtained by Tenant under this Article or the
preceding Article shall name Landlord as additional insured and the Tenant
agrees to deliver to Landlord the original of such policies. Such policies will
contain a provision that same may not be canceled without giving to the Landlord
at least thirty (30) days prior written notice.
17. Compliance With Insurance Requirements
Tenant shall promptly perform and comply with the requirements of all fire
and liability insurance carriers obtained by Landlord within thirty (30) days
after written notice from Landlord, either personally or by certified mail,
return receipt requested.
18. Waiver of rights to Redeem
Except as otherwise expressly provided herein, Tenant hereby expressly
waives any and all right to redeem the Demised Premises under Sections 761 and
763, or any amendments, changes and additions thereto, of the Real Property
Actions and Proceeding Law of the State of New York or otherwise, after a
warrant of dispossess shall have been made or entered, or by virtue of any other
statute, law or decision of like import or effect now or hereafter in force.
19. Total Condemnation
If, at any time during the term hereof, the whole of the Demised Premises
shall be taken for any public or quasi-public use, under any statute, or by
right of eminent domain, or if any part of said Demised Premises shall be so
taken and the part not so taken shall be insufficient, in the reasonable
judgment of Tenant, for the operation of Tenant's business, then this Lease
shall immediately cease and terminate, and the Base Rent and Additional Rent
payable under this Lease shall be equitably apportioned and paid to the time of
such termination, and Tenant shall not be responsible for any payment of rent or
other obligation under this Lease after such termination.
In the event of such total condemnation, the entire award shall become the
property of the Landlord, and Tenant access that it shall not be entitled to,
nor shall it, file a claim for any portion of
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such award. Nothing herein contained shall prevent Tenant from applying for
an award for the unamortized value of Tenant's leasehold improvements and
Tenant's relocation and moving expenses (or from joining in Landlord's
application for such award), provided that such award to Tenant does not cause
the diminution or reduction of the award otherwise payable to Landlord.
20. Partial Condemnation
A. If any buildings or improvements now or hereafter constructed on the
Demised Premises shall be damaged or partially destroyed by any such taking of
less than the whole or materially all thereof, then except as herein above or
after specifically provided, this Lease shall continue in full force and effect
as to the part not so taken, and the Base Rent shall be reduced by mutual
a-agreement of the parties, and if the parties fail to mutually agree upon a
fair Base Rent, the matter shall be determined by arbitration in accordance with
Article 34 hereof. Tenant shall give prompt notice thereof to Landlord, and
shall proceed with reasonable diligence to conduct any necessary demolition and
to repair and restore, at its own cost and expense, any remaining part of any
building and improvements not so taken, so as to constitute such remaining part
or parts thereof a complete, rentable building in good condition and
repair, provided, however, that Tenant shall not be required to make any repairs
or restoration hereunder until the condemnation award shall have first been paid
or disbursed in accordance with the terms of this Article.
B. If there shall be less than sixty (60) days remaining to the end of the
Lease term hereunder (including any extensions thereto as to which Tenant shall
have given Landlord the notice required by Article 2B, 2C or 2D), Tenant may, in
lieu of making such repair and restoration tenant this Lease upon thirty (30)
days prior written notice to Landlord without penalty and the otherwise
applicable provisions of this Lease regarding terminations shall be applied as
if the Lease had otherwise terminated on such date. Tenant shall in such case
promptly remit to Landlord any insurance proceeds and payments received as a
result of such damage, destruction or taking.
21. Evidence of Payment By Landlord: Tenant's Right to Cure
A. Provided Tenant has complied with all the terms, covenants and
conditions of this Lease on Tenant's part to be performed, the Landlord agrees
to exhibit to Tenant, upon demand therefor, evidence of payment of the
installments of principal and interest under the bonds and/or mortgages covering
the said premises, and of taxes and of other impositions.
B. In the event Landlord shall at any time fail to pay any installment of
principal or interest upon any mortgage which shall constitute a lien upon the
Demised Premises or any other charge or sum not required by the provisions of
the Lease to be paid by Tenant, or in the event that a lien is placed on the
Demised Premises by any municipal, state or federal agency, or any other party,
due to the failure of the Landlord, or party or parties collectively comprising
the Landlord, or its assigns to discharge any and all obligations not assumed by
Tenant under this Lease, including, but not limited to, Article 54 hereof, and
if such failure to pay such sum or lien shall constitute a threat to the
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right of Tenant to enjoy the use of the Demised Premises, Tenant shall have
the right forthwith to pay the amount due if it so elects together with any
costs or interest payable in connection therewith and Tenant may deduct the
amount of such payment together with interest from the date of Tenant's payment
from the rental next becoming due under the provisions of this Lease until the
amount of the credit to which Tenant shall be entitled shall be exhausted.
Tenant, upon making such payment, shall be entitled subject to the provisions of
the laws applicable thereto, to be subrogated to the rights of the holder of
such payment for or on behalf of the Landlord. Tenant shall first give to
Landlord five (5) business days written notice by certified mail (unless the
time available to make such payment is shorter), of its intention to make such
payment on behalf of the Landlord and if the Landlord fails within such period
to cure its default, Tenant may make same as provided above.
22. Mortgages - Subordination
A. This Lease, the lien thereof on the Demised Premises, and all rights of
Tenant hereunder, and of any persons claiming under or through Tenant, are
subject and subordinate to existing or future mortgages or leases which shall be
liens upon the premises and to any other mortgages or leases and to any
renewals, modifications, consolidations, extensions or replacements of such
mortgages or leases although such mortgage or mortgages may exceed in the
aggregate the original principal amounts of the mortgages which shall be liens
upon the premises at the time of the execution of the Lease, provided, however,
that the aggregate annual amount of principal and interest payments on all of
such mortgages (exclusive of the final
principal payment) shall not exceed eighty (80%) percent of the annual Base
Rent. Landlord will use its best efforts to obtain the agreement of the holder
of any such existing or future mortgages either not to disturb the quiet
enjoyment of Tenant hereunder as a result of any default by Landlord or to
accept payment from Tenant to cure any such default by Landlord.
B. This a-agreement of subordination shall be self-operative but Tenant
covenants and agrees on demand at any time or times, to execute, acknowledge and
deliver to Landlord, any and all instruments which may be necessary or proper to
subordinate this Lease and Tenant's right hereunder to the lien or liens of any
such mortgage or lease or renewal, modification, consolidation, replacement or
extension. Tenant hereby authorizes and empowers Landlord to make, execute,
acknowledge and deliver the same as attorney in fact of Tenant coupled with an
interest in Tenant's name, place and stead upon ten (10) days written notice to
Tenant, the Tenant hereby making, constituting and appointing Landlord and its
successors and assigns as attorney in fact for that purpose.
C. Landlord will either provide Tenant with (i) a copy of any existing
mortgage upon the Demised Premises, as well as of any renewal, modification,
consolidation, extension or replacement thereof or the (ii) a written
description of Landlord's obligations under any such mortgage, renewal,
modification, consolidation, extension or replacement thereof. Tenant warrants
it will not perform any act or do anything which will cause a default under any
such mortgage or of any renewal, modification, consolidation, extension or
replacement thereof Whenever the obligations of Landlord (mortgagor) to the
holder of such mortgages or of such renewals, modifications, consolidations,
extensions or replacements require Landlord (mortgagor) to perform an act or do
a thing which coincides with an act or thing which Tenant is herein obligated to
Landlord to perform or do, Tenant warrants to perform said act or to do
14
said thing. Anything in any provision of this Lease to the contrary
notwithstanding, if the time given to Landlord by holders of said mortgages or
such renewals, modifications, consolidations, extensions or replacements to
perform said act or to do said thing is shorter than the time given to Tenant by
this Lease to perform or do the same act or thing, then if Landlord promptly
gives Tenant notification of any notice given to Landlord in respect of said act
or thing by the holder of said mortgages or by the holders of such renewals,
modifications, consolidations, extensions or replacements, Tenant shall perform
said act or do said thing within the time specified in the notice so given by
the holder of any mortgage or by the holder of such renewals, modifications,
consolidations, extensions or replacements. If Tenant fails to perform said act
or do said thing., within the time as specified, and Tenant has not commenced
and proceeded to remedy such act or thing, Landlord may enter the premises and
perform said act or do said thing without further notice. There shall be
applicable thereto all the provisions hereof in respect of Landlord performing
said acts and/or doing said things at the expense of Tenant and recovering said
expenses from Tenant as Additional Rent. Notwithstanding anything herein to the
contrary, Tenant shall be under no obligation to make any payments hereunder if
the total of such payments would exceed Tenant's obligation to pay Base Rent and
Additional Rent to Landlord.
23. Default
A. Any one or more of the following events shall be deemed to be "Events of
Default" under this Lease:
(i) if this Lease or the estate of Tenant hereunder shall be transferred,
assigned, subleased or mortgaged to any person or party, except in the manner
herein permitted, subject to Tenant's right to cure such Event of Default within
thirty (30) days thereof, or
(ii) if Tenant shall default in making payment of any installment of Base
Rent or Additional Rent or other sums or charges, as and when the same shall
become due under and payable and/or required to be deposited by Tenant under
this lease, and such default shall continue for a period of twenty (20) days
after written notice given by Landlord; or
(iii) if Tenant shall materially fail to perform any of its obligations and
any such default shall continue for a period of thirty (30) days after written
notice by Landlord, except that, in connection with a default not consisting
solely of the payment of rent and not susceptible of being cured with due
diligence, the applicable cure period, the time of Tenant within which to cure
the same, shall be extended for such time as may be necessary to cure the same
with reasonable diligence, provided Tenant shall commence promptly and proceed
diligently to cure the same; or
(iv) an execution or attachment shall be issued against Tenant's leasehold
estate, and such execution or attachment shall not be vacated or removed by
court order, bonding or otherwise, within a period of sixty (60) days after the
issuance thereof
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B. Upon the occurrence of an Event of Default, the Landlord may, at its
election, and in addition to any other remedies available to it under law or in
accordance with any other provision of this Lease, serve a written ten (10) day
notice of cancellation and termination of this Lease upon Tenant, and upon the
expiration of said ten (10) days (during which time Tenant may cure any monetary
default, together with interest, if any, accrued thereon in accordance with the
provisions of this Lease, and thereby nullify any such cancellation or
termination based only upon such monetary default), the Lease and the terms
hereunder shall ten-terminate and expire as fully and completely as if the date
of expiration of such ten (10) day period were the day herein fixed for the end
and expiration of this Lease and the term thereof, and Tenant in such case shall
then quit and surrender to Landlord the Demised Premises and each and every part
thereof and Landlord may enter into or repossess the Demised Premises each and
every part thereof, either by force, summary proceedings or otherwise. No
cancellation and termination of this Lease under this Article shall relieve
Tenant of its liability and obligations to pay the Base Rent and Additional
Rent, and other sums and charges theretofore accrued or thereafter accruing, and
such liability and obligations shall survive any such expiration or termination.
C. All sums which Tenant has agreed to pay by way of real estate taxes,
maintenance and all other sums and charges required to be paid by Tenant
hereunder, becoming due from time to time under the terms of this Lease, shall
all be deemed Additional Rent reserved in this Lease within the meaning of this
Article.
In the event this Lease is terminated by Landlord pursuant to any of the
provisions of this Article or otherwise terminated pursuant to any express
provision of this Lease, Landlord shall be entitled to retain and set off
against its damages any proceeds being held as deposits or as trust funds
hereunder.
D. In the event of any termination of this Lease, whether the same be by
expiration, cancellation, surrender or by operation of law, by issuance of a
dispossessory warrant, or by service of notice of cancellation and termination
as herein provided, Landlord may at any time re-enter the Demised Premises using
such force for that purpose as may be necessary without being liable to
prosecution therefor, and thereupon Landlord shall be entitled to retain
possession of the Demised Premises free from any estate or interest of Tenant
therein.
E. Tenant hereby expressly waives the service of any notice of intention to
re-enter provided in any statute or of the institution of legal proceedings for
such purpose and Tenant for and on behalf of itself and all persons claiming
through or under Tenant, including any assignee or creditor of Tenant, also
waives any and all right of redemption or re-entry or repossession or to restore
the operation of this Lease in case Tenant shall be dispossessed by summary
proceedings or otherwise or in case of reentry or repossession by Landlord or in
case of any expiration or termination of this Lease in accordance with its
terms. The term "enter", "entry", "re-enter" as used in this Lease are not
restricted to their technical legal meaning.
F. Except as otherwise provided in this Article, no receipt of funds by
Landlord from Tenant after the termination or cancellation
16
hereof in any lawful manner shall reinstate, continue or extend the term,
or affect any notice theretofore given to Tenant, or operate as a waiver of the
right of Landlord to enforce the payment of Base Rent, and Additional Rent, and
other sums and charges then due or which thereafter become due, or operate as a
waiver of the right of Landlord to recover possession of the Demised Premises by
proper suit, action, proceedings or other remedy, it being agreed that (i) after
the service of notice of cancellation and termination as herein provided; (ii)
after the commencement of any suit, action, proceedings or other remedy; or
(iii) after a final order or judgment for possession of the Demised Premises,
Landlord may demand, receive and collect any funds which thereafter become due,
without in any manner affecting such notice, suit, action, proceedings, order of
judgment; and any and all such proceeds so collected shall be deemed to be
payments on account of the use and occupation of the Demised Premises, or, at
the election of Landlord, on account of Tenant's liability hereunder.
G. If this Lease shall be terminated and canceled as provided in this
Article, Tenant covenants and agrees, any other covenant in this Lease to the
contrary notwithstanding, that the Deposed Premises shall be then in the same
condition as that in which Tenant has agreed to surrender the same to Landlord
at the expiration of the term hereof, as more fully described in Article 5B
hereof.
H. Tenant shall pay upon demand all reasonable costs, charges and expenses,
including reasonable fees and expenses of counsel retained by Landlord, incurred
by Landlord in enforcing Tenant's obligations hereunder in the event of a
default of Tenant's obligations under this Lease.
I. In the event that Tenant shall fail to occupy the Demised Premises on or
before December 31, 1996, or in the event that Tenant shall give landlord prior
written notice of its intention not to occupy the Deposed Premises on or before
December 31, 1996, Tenant shall pay to Landlord as liquidated damages the sum of
Fifty Thousand Dollars ($50,000) and shall have no further obligation or
liability under this Lease.
24. Cumulative Remedies
Any material violation or attempted material violation or threatened
material violations of any covenant or condition of this Lease by Tenant, or
anyone claiming under Tenant, shall be remediable by injunction which shall be a
cumulative remedy in addition to every other remedy given by this Lease or now
or hereafter existing by law, either independently of or in connection with the
execution of this Lease, it being expressly agreed that the various rights,
remedies, powers and elections given to Landlord in this Lease are distinct,
separate and cumulative remedies, and no one such remedy thereunder, whether or
not exercised by Landlord, shall be deemed to be in exclusion of any of the
other remedies, or of such other rights, remedies, powers or elections as are
now or may hereafter be available to Landlord under this Lease or by law.
25. Indemnity
A. Tenant hereby agrees to indemnify and to save and hold Landlord harmless
against any and all claims, damages, suits or causes of action for damages
arising after the commencement of the term hereof and
17
any orders, decrees or judgments which may be entered therein, commenced as
a result of any injury to person or property or from loss of life sustained in
or about the said Demised Premises and the building and improvements thereon, or
in or upon the sidewalks, curbs, alleys, vaults, or streets in front of or
appurtenant thereto by any person or persons whatsoever, as a result of Tenant's
negligence. Landlord hereby agrees to indemnify and to save and hold Tenant
harmless against any and all such claims, damages, suits or causes of action for
damages arising as a result of Landlord's negligence. It is the intention and
agreement of the parties that Landlord shall not be liable for any personal
injuries or damages to Tenant or its officers, agents and employees or to any
other person or to any occupant of any part of the Demised Premises, or for any
injury or damage to any goods, wares, merchandise or property of Tenant or of
any occupant of any part of the said premises, irrespective of how the same may
be caused.
B. Tenant hereby agrees to indemnify and to save and hold Landlord harmless
and free of and from any and all liability, loss, damage or expense, causes of
action, suits, claims and judgments, including reasonable legal expenses in
connection with defending against any such action, suit or claim arising from
injury or alleged injury to persons or property of any and every nature, or
arising out of the use, occupation, management or possession of the Demised
Premises, or of any building thereon, or any part thereof, or of the vaults,
alleys, sidewalks adjacent thereto, occasioned by the actual or alleged
negligence or willful acts of Tenant, its agents, employees, assigns or
occupants of any part of the Demised Premises, or by their agents or employees
respectively, at any time during the term of this Lease.
26. Improvements Owned by Landlord
Any and all improvements to said Demised Premises or any part thereof
during the term of this Lease shall belong to Landlord upon the expiration or
termination of this Lease, and without payment of any kind therefor.
27. Limit of Liability of Landlord and Tenant
Tenant agrees that, if Landlord shall be an individual, corporation,
trustee, joint venture, tenancy in common, co-partnership, unincorporated
association or other unincorporated aggregate of individuals and/or entities,
then Tenant shall look solely to such Landlord's estate and property in the land
and buildings (or the proceeds thereof for the satisfaction of Tenant's remedies
for the collection of a judgment (or other judicial process) requiring the
payment of money by Landlord in the event of any default by Landlord hereunder,
and no other property or assets of such incorporated or unincorporated Landlord
shall be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder, or Tenant's use and occupancy of
the Demised Premises.
28. Signs
With respect to any future signs, Tenant shall only use, erect and maintain
signs, flagpoles, marquees or other forms of advertisement or display on
the Demised Premises by and with the written consent of the Landlord, which
consent shall not be unreasonably withheld or delayed,
18
and to the extent that such erection, use and/or maintenance may be
approved by and be in all respects satisfactory to the municipal and other
governmental authorities having jurisdiction thereof, and conform in all
material respects to all laws, ordinances and regulations pertaining thereto;
but Tenant shall include in the insurance coverage to be carried by Tenant
hereunder, full insurance against any hazard, loss or damage to person or
property by reason of said signs and structures, including indemnity in favor of
Landlord against damages or injury due to, or in any way connected with, the
erection, maintenance and/or operation of any such signs and structures.
29. Access rights by Landlord to Show Premises
Subject to rights of tenants and occupants, Tenant shall permit Landlord or
its agents, on reasonable advance notice of not less than five (5) business days
to Tenant, to show the Demised Premises on business days to persons wishing to
purchase or mortgage the same; and during the six months next preceding the
expiration of the term hereby granted (including any extensions thereto as to
whether Tenant shall have given Landlord the notice required by Article 2B, 2C
or 2D), Landlord or its agents shall have the right to show the premises to
persons wishing to hire the same upon such notice.
30. Inspection and Access Rights
Subject to rights of tenants and occupants of the Demised Premises,
Landlord and its agents and other representatives shall have the right to enter
into and upon the Demised Premises or any part thereof at all reasonable hours
and upon reasonable notice for the purpose of examining the same or making such
repairs or alterations therein as may be necessary for the safety and
preservation thereof, which right to make repairs or alterations shall, however,
be subject and subordinate to each and every provision contained in this Lease
applicable to repairs or alterations, and Landlord agrees that except for
emergencies (in Landlord's reasonable opinion), Landlord will give Tenant ten
(10) business days' prior notice before making any repairs upon the Deposed
Premises and in the event that Tenant shall dispute the necessity for such
repairs, such disputes shall be subject to arbitration pursuant to Article 34
hereof Except as otherwise specifically provided elsewhere in this Lease,
Landlord shall not be under any obligation to make any repairs, alterations
and/or improvements of any kind whatsoever, structural or otherwise, but Tenant
shall make all such repairs, alterations and improvements at its own cost and
expense. However, in case of the neglect or default of Tenant in making the
same, Landlord may do so during the term hereby granted or after its expiration,
subject to the provisions of Article 23.F hereof, and all reasonable costs and
expenses paid or incurred in connection therewith, plus interest thereon at the
rate of one percent (1%) per month, shall be repaid by Tenant to Landlord on
demand as Additional Rent. The recipient bills of the mechanics or contractors
employed by Landlord showing,-, the payment by Landlord for the making of such
repairs, alterations or improvements, shall be prima facie evidence of the
reasonableness of such charges therefor, and that the same have been paid by
Landlord.
31. Quiet Enjoyment
Upon payment of the Base Rent, Additional Rent and all other sums and
charges herein reserved and upon the due performance of all the terms, covenants
and conditions and agreements herein contained on its
19
part to be kept and performed, Tenant shall and may at all times during the
term hereby granted peaceably and quietly enjoy the Demised Premises, subject,
however, to the terms of this Lease; provided, however, that this covenant shall
run with the land, shall be binding upon the grantee of the Demised Premises
from time to time, as the case may be, but that there shall be no personal
liability hereunder as against Landlord, or, if Landlord is a corporation,
against its stockholders, or if it is a partnership, against any of its
constituent partners, or any successor corporation or partnership or firm or
joint tenancy, and Tenant will look solely to the Demised Premises for its
protection.
32. Surrender at End of Term
A. At the expiration of the term of this Lease as set forth in Article 2
hereof, or upon the sooner termination of the term pursuant to Article 23 or any
other provision of this Lease, Tenant shall surrender and deliver up to Landlord
the Demised Premises, buildings and improvements and the sidewalk, vaults and
streets and appurtenances in front of or appurtenant to the Demised Premises,
and also all elevators, pipes, plumbing, electric wires, boilers and steam
heating plant, and all machinery, in the same condition existing on the date
hereof, ordinary-y wear and tear excepted, to which end Tenant herein
specifically contracts, under penalty of forfeiture and damages, that, except to
the extent that such items are the responsibility of Landlord, as described in
Article 8 hereof, Tenant shall at all times not only keep all building on the
said premises, adjacent sidewalk and vaults, if any, in the same condition
existing on the date hereof, ordinary wear and tear excepted, whether inside and
outside, and whether structural or otherwise, extraordinary or unforeseen, and
will from time to time, if necessary, renew the same to the end that deliver-y
of the aforesaid Demised Premises and sidewalks, vaults and streets and all
pipes, plumbing, electric wires, boilers and steam heating plant, elevators and
machinery, within, in front of, or appurtenant to the Demised Premises, may be
at the expiration of this Lease in the same condition existing on the date
hereof, ordinary wear and tear excepted.
B. Tenant hereby covenants and agrees that at the expiration of the term of
this Lease as set forth in Article 2 hereof, or upon the sooner termination of
the term pursuant to Article 23 or any other provision of this Lease, it will
restore the Demised Premises to the condition that they were in on the day
before the Commencement Date of this Lease (normal wear and tear excepted), or,
at Tenant's option, rent to the Landlord the reasonable cost of such
restoration, as more fully described in Article 8B hereof In the event that
Tenant causes the Certificate of Occupancy set forth in Article 13 to be
amended, Tenant agrees, at its sole cost, to cause such Certificate of Occupancy
to be restored to its former provision at the expiration of any renewal of this
Lease, or the termination of this Lease pursuant to Article 23 or any other
provision of this Lease.
33. No Waiver
It is understood and agreed that neither delay on the par-t of Landlord or
Tenant in invoking any remedy to which such party may be entitled because of any
breach on the part of the other party hereto of any covenant or condition herein
nor the acceptance of rent herein by
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Landlord, either from Tenant or any subtenant, whether or not such delay or
acceptance is with or without knowledge on the part of Landlord of such breach,
shall prejudice Landlord's or Tenant's (as the case may be) privilege to invoke
such remedy, which remedy shall continue until such breach is cured.
Landlord or Tenant may, as often as it elects, waive any one or more
violations or defaults in any of the terms, covenants, conditions and provisions
set forth in this Lease, in case any such violations or defaults occur, without
thereby losing or impairing the right subsequently to enforce fully each and all
of such terms, covenants, conditions and provisions in the manner herein
provided in case of new or continued violation or default in any of such terms,
covenants, conditions and provisions.
34. Arbitration
If a matter is to be determined by arbitration pursuant to the specific
provisions of this Lease,then such matter shall be settled by arbitration in New
York City before the American Arbitration Association and in accordance with its
procedural rules then obtaining (or if the American Arbitration Association is
not then in existence, such matter shall be settled by arbitration in accordance
with the laws of the State of New York), and the award rendered shall be final,
conclusive and binding upon the parties and judgment thereon may be entered in
any court having jurisdiction thereof. Each party to the arbitration shall pay
half the cost thereof and its own counsel fees and expenses. It is further
expressly understood and agreed that arbitration shall not be available to any
party to this Lease except in the cases in which it is expressly provided for in
this Lease.
35. Excavation
If any excavation shall be made or contemplated to be made for building or
other purposes upon property adjacent to the Demised Premises, Tenant shall,
subject to Landlord's approval, and if applicable, Landlord's payment (as set
forth in Article 8) either:
(i) afford to the person or persons causing or authorized to cause such
excavation the right to reasonably enter upon the Demised Premises and any
building and improvements now or hereafter erected thereon for the purpose of
doing such work as such person or persons shall consider to be necessary to
preserve any of the walls or structures thereof from injury or damage and to
support the same by proper foundations, or
(ii) do or cause to be done all such work as may be necessary to preserve
any of the walls or structures of any building and improvements now or hereafter
erected upon the Demised Premises from injury or damage and to support the same
by proper foundations. Tenant shall not, by reason of any such excavation or
work, have any claim against Landlord for damages, or indemnity or for
suspension, diminution, abatement or reduction of rent under this Lease or any
renewal thereof This Article is intended to benefit only the Landlord and
permitted mortgagees and is not intended to create any rights not conferred by
law on any adjoining owner or lessee.
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36. No Service or Repairs
Except as set forth in Article 8, Landlord shall not be required to furnish
any service to the Demised Premises, including, without limitation, heat, water,
electricity and power, and shall in all events not be liable for any failure of
water supply or electric current or of any service by any utility, nor for
injury or damage to person (including death) or property caused by or resulting
from falling plaster, steam, gas, electricity, water, rain or snow which may
flow or leak from any part of the Demised Premises, or from any pipes,
appliances or plumbing works of the same, or from the street or subsurface or
from any other place, nor from interference with light or other incorporeal
hereditament or easements, however caused, except if due to negligence on the
part of Landlord. Tenant agrees to pay all charges for gas, electricity, water,
light, heat, power and/or other services used or charges imposed in or about or
supplied to said
building. If there is no meter to measure the consumption of water, the
Tenant, at its own cost, will install same. Landlord shall not be required to
furnish any services or facilities or to make any repairs or alterations in or
to the Demised Premises. Tenant hereby assumes the full and sole responsibility
for the condition, operation, repair, replacement, maintenance and management of
the Demised Premises from and after the date hereof, except as otherwise
provided herein.
37. Party Wall Agreements, If Any
Tenant covenants, in connection with the making of repairs or
alterations, to observe and perform the covenants and conditions contained in
any party wall agreement affecting the Demised Premises, if any
38. Definition of Landlord
The term "Landlord" as used in this Lease means only the owner of the land
and buildings which constitute the Demised Premises, so that in the event of any
transfer of said land and buildings by Landlord, the said Landlord shall be and
hereby is entirely freed and relieved of all covenants and conditions of
Landlord hereunder, and it shall be deemed and construed without further
agreement between the par-ties or their successors in interest, or between the
parties and the transferee at any such transfer, that the transferee has assumed
and agreed to carry out any and all covenants and obligations of Landlord
hereunder. This provision shall apply to each and every sale and transfer.
39. Notice
Notice wherever provided for herein shall be in writing and be given by
certified mail, return receipt requested at the address herein specified by the
party to whom such notice is to be given, unless a different address has been
published by such a party to the party giving such notice, in which case the
latter address shall be used. Every notice shall be deemed to have been given
the earlier of (i) three (3) business days after the time of deposit thereof in
any branch of the United States Post Office or (ii) upon receipt thereof by the
addressee.
Any and all notices required to be given to Landlord under the terms of
this Lease shall be given only to one such individual, firm or corporation who
shall have been duly designated by an instrument or
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instruments executed and acknowledged by Landlord and until such further
designation, all notices to be given to the Landlord shall be given to Landlord
at the address set forth above, with a copy to Landlord's attorney, Xxxxxxx X.
Xxxxx, Esq., 0000 Xxxx 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000.
Any and all notices required to be given to Tenant under the terms of this
Lease shall be given only to one such individual, firm or corporation, who shall
have been duly designated by an instrument or instruments executed and
acknowledged by Tenant, and until such further designation, all notices to be
given to Tenant shall be sent to the address set forth above, with a copy to
Tenant's attorney, Xxxxxxx X. Xxxxxxxxx, Esq., Xxxxxxx, Xxxxxx & Green, P.C.,
000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
40. Sprinkler System
A. If there now is or shall be installed in the building a "sprinkler
system" and such systems or any of its appliances shall be damaged or injured or
not in reasonable working order, Tenant shall forthwith restore the same to
reasonable working condition.
B. If the New York Board of Fire Underwriters or the Fire Insurance
Exchange or any bureau, department or official of the federal, state or city
government or any fire insurance carrier insuring the Demised Premises requires
changes, modifications or alterations to the sprinkler system, Tenant shall be
responsible for same. Tenant shall in all events be required to maintain the
sprinkler system and replace sprinkler heads as necessary.
C. Tenant shall pay all costs for the contract price for superior
supervisory service during the term of this Lease, if required.
41. Estoppel Certificate - Tenant
Tenant agrees at any time and from time to time upon not less than ten (10)
days' prior notice by Landlord to execute, acknowledge and deliver to Landlord
or fee mortgagee a statement in writing certifying that this Lease is unmodified
and in full force and effect (or if there have been modifications, that the
Lease is in full force and effect as modified and stating the modification), and
the dates to which the Base Rent and Additional Rent have been paid, and stating
whether or not Landlord is in default in keeping, observing or performing any
term, covenant, agreement, provision, condition, or limitation contained in the
Lease and, if in default, specifying each such default, it being intended that
any such certificate delivered pursuant to this Article may be relied upon by
Landlord or any prospective purchaser of the fee or any mortgagee thereof.
42. Estoppel Certificate - Landlord
Within ten (10) days after receipt of written request therefor, Landlord
will certify in writing to Tenant or any assignee or proposed assignee or
mortgagee of this Lease, or proposed permitted sublessee, that as of the date of
such certification, Tenant has or has not, as the case may be, faithfully and
fully made all payments then and theretofore due to Landlord and that Landlord
knows or does not know, as the case may be, of any default by Tenant in the full
and faithful performance by
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Tenant of all covenants, conditions and agreements on Tenant's part to be
performed. Upon the failure of Landlord to execute and deliver such certificate
within the time above specified, such failure shall be deemed tantamount to the
delivery of the certificate by Landlord, to the effect that Tenant has
faithfully and fully met all payments thereunder and theretofore due to
Landlord, and that Tenant is not in default under the terms of this Lease.
43. Severability Provision
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, shah not be affected thereby, and each term and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law.
44. Landlord's right to Mortgage Fee
Subject to the provisions of Article 22 hereof, Landlord may, from time to
time, mortgage its fee and estate in the Demised Premises and its reversionary
interest in and to the furniture, chattels, furnishings, fixtures and equipment,
or renew, modify, consolidate, replace or extend any such mortgage and this
Lease and all rights of Tenant shall be subject and subordinate to any such
mortgage, and any renewal, modification, consolidation, replacement or extension
agreement thereof Landlord agrees that promptly upon receipt by Landlord of any
written notice of default from any fee mortgagee, Landlord shall send a true
copy of such notice of default to Tenant.
45. Covenants
Whenever in this Lease any words of obligation or duty are used, such words
or expressions shall have the same force and effect as though in the form of
covenants.
46. Waiver of jury Trial
It is mutually agreed by and between Landlord and Tenant that the
respective parties hereto shall and do hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other on any matters whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the
Demised Premises and/or any claim or injury or damage. It is further mutually
agreed that in the event Landlord commences any summary proceeding for
possession of the premises by reason of nonpayment of the Base Rent, Additional
Rent or other sums and charges, Tenant will not interpose any counterclaim of
whatever nature or description in any such proceeding.
47. Adjustments upon Expiration of Lease Term
Upon expiration or termination of this Lease, whether by lapse of time or
otherwise (except if Tenant is dispossessed by Landlord or abandons the Demised
Premises) appropriate adjustments shall be made between Landlord and Tenant of
taxes, water and sewer charges, fuel and
24
any other items customarily adjusted between parties to similar
transactions and in accordance with the customs in respect to hotel title
closings usual in New York, New York. Further, upon the expiration of the term
of this Lease, whether by lapse of time or otherwise, and upon the payment of
the net adjustment due to Tenant, if any, Tenant shall turn over to Landlord, at
Landlord's written request therefor, the originals of all subleases, all other
applicable agreements, service contracts, union agreements, maintenance
agreements, insurance policies, licenses and permits (to the extend
transferable) in Tenant's possession and shall make available to Landlord
payroll schedules and such other operating data as Landlord may reasonably
request and shall transfer to Landlord all lease security deposits.
48. Governing Law
The parties hereby covenant and agree that this Lease shall be governed by,
and construed in accordance with the Internal laws of the State of New York,
without giving effect to principles of conflicts of law.
49. Article Headings
The Article headings are inserted only as a matter of convenience and for
reference, and in no way define, limit or describe the scope or intent of this
Lease, nor in any way affect this Lease.
50. Successors and Assigns, Survival
The covenants and agreements herein contained shall, subject to the
provisions of this Lease, bind and inure to the benefit of Landlord and Tenant
and their respective heirs, executors, administrators, personal representatives
and assigns and Tenant and its respective successors and assigns.
Notwithstanding anything to the contrary contained herein, the terms and
provisions of this Lease shall survive the assignment or transfer at any time of
Landlord's rights under this Lease, or the sale or transfer at anytime of
the fee estate in the Demised Premises or of any interest therein.
51. No Employees
The Landlord agrees to deliver the premises to the Tenant that no employees
and the Landlord will turn the building over to the Tenant with the
understanding that the Tenant will hire its own employees. Landlord agrees to
indemnify Tenant from and against any claims by employees that relate to periods
prior to the Lease Commencement Date.
52. Net Rental
It is the intention of the parties that except as herein specifically set
forth, the rent payable hereunder shall be net to the Landlord and that all
costs, expenses and obligations, except as herein specifically set forth, of
every kind and nature, relating to the Demised Premises, shall be payable by
Tenant.
53. Current Occupants
Tenant takes the Lease with the understanding that certain, or all of the,
units of the Demised Premises may be occupied by tenants on the
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Commencement Date of this Lease. A listing of such occupied units and the
terms of such tenancies is attached hereto as Exhibit "C." Tenant expressly
takes subject thereto.
54. Landlord's Renovation Obligations
Landlord shall be under no obligation to renovate, repair or restore any
part of the Demised Premises.
55. Opportunity to Consult with Counsel
Tenant acknowledges that it has been afforded a full and fair opportunity
to review this Lease with its legal counsel prior to its execution of this
Lease.
IN WITNESS WHEREOF, the parties have set their hands and seals the year and
date first above written.
----------------------------
Date:
CRESTON REALTY ASSOCIATES, L.P.
By_____________________________
CORRECTIONAL SERVICES CORPORATION
By______________________________
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Exhibit A
Exhibit B
No Service Contracts.
Exhibit C
Existing Tenancies
1. Deseus, Apt. 2N, Rent $293.50 per month, no security, no arrearages,
Landlord provides heat and hot water.
2. Xxxxxx, Apt. 4N, Rent $253.00 per month, no security, no arrearages,
Landlord provides heat and hot water.
3. Xxxxxx, Basement Apt., Rent $143.00 every two weeks, no security, one
rental payment in arrears ($143.00) plus $255.00 back arrears, Landlord provides
heat, hot water, gas and electricity.
BY FEDERAL EXPRESS
Mr. Xxxxx Xxxxxxxx
Correctional Services Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxx 00000
Dear Xxx:
Re: Lease between Creston Realty Associates, L.P., Landlord and
Correctional Services Corporation, Tenant
Premises: 0000 Xxxxxxx Xxxxxx, Xxxxx, Xxx Xxxx
I am enclosing a fully executed copy of the Lease for the above Premises.
We are preparing corporation resolutions with respect to the authorization for
your Company to enter into this Lease. These resolutions will be sent to you
shortly.
Sincerely yours,
Xxxxxxx X. Xxxxxxxxx
