EXHIBIT 10.70
AGREEMENT made and dated this 20 day of December, 1994, between ELAN
ASSOCIATES, a Joint Venture, having its principal place of business at 0000
Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx, Xxxxxxxx, and CHEYENNE SOFTWARE,
INC., a New York corporation, having its principal place of business at 0
Xxxxxxxxxx Xxxxx, Xxxxxx Xxxxxxx, Xxx Xxxx, as Tenant.
Landlord hereby leases to Tenant and Tenant hires from Landlord the
entire building and premises known as and by 0000 Xxxxxx Xxxxxx, Xxxx
Xxxxxxx, Xxx Xxxx located on a parcel of land approximately 5.4 acres, and
the building (consisting of approximately 100,000 sq. ft. on three floors
plus approximately 7500 sq. ft. of storage and archive space on the lower
level and garage), for a term of years commencing June 1, 1995 and ending
August 31, 2002, both dates inclusive, at an annual rental rate as
hereinafter provided in Paragraph "38", including garage parking and the
exterior lot, all as shown on the site plan annexed hereto as Exhibit A
(collectively, the "Demised Premises")
Tenant agrees to pay annual rent in lawful money of the United States
which shall be legal tender in payment of all debts and dues, public and
private, at the time of payment, in equal monthly installments in advance of
the first day of each month during said term, at the office of Owner or such
other place as Owner may designate, without any set off or deduction
whatsoever.
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 demised premises for offices
for the Administration of Tenant corporate affairs,
research and development for the Tenant and any other lawful purpose.
Tenant 3. Tenant shall make no [1] changes in or to the demised
Alterations: premises of any nature without Owner's [1a] prior written
consent. Subject to the prior written consent of Owner,
and to the provisions of this article, Tenant at Tenant's expense, may make
alterations, installations, additions or improvements which are nonstructural
and which do not affect utility services or plumbing and electrical lines, in
or to the interior of the demised premises by using contractors or mechanics
first approved by Owner. Tenant shall, before making any alterations,
additions, installations or improvements, at its expense, 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 and Tenant agrees to carry and will cause Tenant's contractors and
sub-contractors to carry such xxxxxxx'x compensation, general liability,
personal and property damage insurance as Owner may [2] 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 days thereafter, at
Tenant's expense, by filing the bond required by law. All fixtures and all
paneling, partitions, railings and like installations, installed in the
premises at any time, either by Tenant or by Owner in 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 [3],
elects to relinquish Owner's right thereto and to have them removed by
Tenant, in which event the same shall be removed from the 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 any such from the premises or upon removal of other installations
as may be required by Owner, Tenant shall immediately and at its expense,
repair and restore the premises to the condition existing prior to
installation 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 premises after Tenant's
removal shall be deemed abandoned and may, at the election of Owner, either
be retained as Owner's property or may be removed from the premises by Owner,
at Tenant's expense.
Maintenance 4. Tenant shall, throughout the term of this lease, take
and good care of the demised premises and the fixtures and
Repairs: appurtenances therein. Tenant shall be responsible for
all damage or injury to the demised premises or any other
part of the building and the systems and equipment thereof, whether requiring
structural or nonstructural repairs caused by or resulting from carelessness,
omission, neglect or improper conduct of Tenant. Tenant's subtenants,
agents, employees, invitees or licensees, or [4] any work, labor, service or
equipment done for or supplied to Tenant or any subtenant or arising out of
the installation, use or operation of the property or equipment of Tenant or
any subtenant. Tenant shall also repair all damage to the building and the
demised premises caused by moving of Tenant's fixtures, furniture, and
equipment. Tenant shall promptly make, at Tenant's expense, all repairs
in and to the demised premises for which Tenant is responsible, using only
the contractor for the trade or trades in question, selected from a list of
at least two contractors per trade submitted by Owner. Any other repairs in
or to the building or the facilities and systems thereof for which Tenant is
responsible shall be performed by [5] at the Tenant's expense. [5] shall
maintain in good working order and repair the exterior and the structural
portions of the building, including the structural portions of its demised
premises, and the public portions of the building interior and the building
plumbing, electrical, heating and ventilating systems (to the extent such
systems presently exist) serving the demised premises. Tenant agrees to give
prompt notice of any defective condition in the premises for which Owner may
be responsible hereunder. 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 others
making repairs, alterations, additions or improvements in or to any portion
of the building or the demised premises or in and to the fixtures,
appurtenances or equipment thereof. It is specifically agreed that Tenant
shall not be entitled to any setoff or reduction of rent by reason of any
failure of Owner to comply with the covenants of this or any other article of
this Lease. Tenant agrees that Tenant's sole remedy at law in such instance
will be by way of an action for damages for breach of contract. The
provisions of this Article 4 shall not apply in the case of fire or other
casualty which are dealt with in Article 9 hereof.
Window 5. Tenant will not clean nor require, permit, suffer or
Cleaning: allow any window in the demised premises to be cleaned
from the outside in violation of Section 202 of the Labor
Law or any other applicable law or of the Rules of the Board of Standards and
Appeals, or of any other Board or body having or asserting jurisdiction.
Requirements 6. [6] At all times thereafter [7] Tenant, at Tenant's sole
of Law, cost and expense, shall promptly comply with all present
Fire Insurance, and future laws, orders and regulations of all state,
Floor Loads: 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 arising out of Tenant's unique use or
manner of use thereof, (including Tenant's permitted use) or, with respect to
the building if arising out of Tenant's use or manner of use of the premises
or the building including the use permitted under the leases. 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 operations
therein, violated any such laws, ordinances, orders, rules, regulations or
requirements with respect thereto. Tenant may, after securing Owner to
Owner's reasonable satisfaction against all damages, interest, penalties and
expenses, including, but not limited to, reasonable attorney's fees, by cash
deposit or by surety bond in an amount and in a company satisfactory to
Owner, contest and appeal any such laws, ordinances, orders, rules,
regulations or requirements [8] provided same is done with all reasonable
promptness and provided such appeal shall not subject Owner to prosecution
for a criminal offense or constitute a default under any lease or mortgage
under which Owner may be obligated, or cause the demised premises or any part
thereof to be condemned or vacated. 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 with
respect to the demised premises or the building of which the demised premises
form a part, or which shall or might subject Owner [9] to any liability or
responsibility to any person or for property damage. 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 or 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 premises in 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. Tenant
shall pay all costs, expenses, fines, penalties, or damages, which may be
imposed upon Owner by reason of Tenant's failure to comply with the
provisions of this article and if by reason of such failure 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
premiums thereafter paid by Owner which shall have been charged because of
such failure by Tenant. In any action or proceeding wherein Owner and Tenant
are parties, a schedule or "make-up" of rate for the building or demised
premises issued by the New York Fire Insurance Exchange, or other 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 judgement, to absorb and prevent vibrations, 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 demise 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 of 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 execute promptly any
certificate that Owner may [10] request.
Property-- 8. Owner or its agents shall not be liable for any damage to
Loss, Damage, property of Tenant or of other entrusted to employees of
Reimburse- the building, nor for loss of or damage to any property
ment, Indem- of Tenant by theft or otherwise, nor for any injury or
nity: 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
will not be liable for any such damage caused by other tenants or persons in,
upon or about said building or caused by operations in construction of any
private, public or quasi public work. 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 attorneys 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 the Tenant, Tenant's agents,
contractors, employees, invitees or licensees. Tenant's liability under this
lease extends to the acts and omissions of any sub-tenant, and any agent,
contractor, employee, invitee or licensee of any sub-tenant. 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, 9. (a) If the demised premises or any part thereof shall be
Fire and Other damaged by fire or other casualty, Tenant shall give
Casualty: immediate notice thereof 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 [11] until such repair
shall be substantially completed, shall be apportioned from the day following
the casualty according to the part of the premises which is usable. (c) If
the demised premises are totally damaged or rendered wholly unusable by fire
or other casualty, then the rent shall be proportionately paid up to the time
of the casualty and thenceforth shall cease until the date when the premises
shall have been repaired and restored by Owner, 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 with 90 days after such fire or casualty, specifying a date for the
expiration of the lease, which date shall not be more than 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 premises without prejudice however, to
Landlord'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 for herein, Owner shall make the
repairs and restorations under the conditions of (b) and (c) hereof, with all
reasonable expedition, subject to 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 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 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,
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 against the other or any one
claiming through or under each of them by way of subrogation or otherwise.
The foregoing release and waiver shall be in force only if both releasors'
insurance policies contain a clause providing that such a release 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
benefitting from the waiver shall pay such premium within ten 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 provisions of this
article shall govern and control in lieu thereof.
Assignment, 11. Tenant, for itself, its heirs, distributees, executors,
Mortgage, administrators, legal representatives, successors and
Etc.: 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 shall be deemed
and 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, under-tenant 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, 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 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 12. Rates and conditions in respect to submetering or rent
Current: inclusion, as the case may be, to be added in RIDER
attached hereto. 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 13. Owner or Owner's agents shall have the right (but shall
Premises: 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 the demised premises or
to any other portion of the building or which Owner may elect to perform.
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
months of the term for the purpose of showing the same to prospective
tenants. If Tenant is not present to open and permit an entry into the
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 obligations 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 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 premises and Tenant agrees to
accept the same subject to violations, whether or not of record. [12]
Fees and 19. If Tenant shall default [13b] in the observance or
Expenses: 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, then, unless otherwise
provided elsewhere in this lease, Owner may immediately or at any time
thereafter and with 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
attorney's fees, in instituting, prosecuting or defending any 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 with 20 days of rendition of
any xxxx or statement to Tenant therefor. If Tenant's lease term shall have
expired at the time of making of such expenditures or incurring of such
obligations, such sums shall be recoverable by Owner as damages. [13c]
No Repre- 21. Neither Owner nor Owner's agents have made any
sentations by representations or promises with respect to the physical
Owner: condition of the building, the land upon which it is
erected or the demised premises, the rents, leases,
expenses of operation or any other matter or thing affecting or related to
the premises 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" 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. 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 22. Upon the expiration or other termination of the term of
Term: 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. 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 23. Owner covenants and agrees with Tenant that upon Tenant
Enjoyment: 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 31 hereof and
to the ground leases, underlying leases and mortgages hereinbefore mentioned.
Failure 24. If Owner is unable to give possession of the demised
to Give premises on the date of the commencement of the term
Possession: 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 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) until after Owner shall have given Tenant
written notice that the premises are substantially ready for Tenant's
occupancy. If permission is given to Tenant to enter into the possession of
the demised premises or to occupy 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 occupancy shall be deemed to be under
all the terms, covenants, conditions and provisions of this lease, except as
to the covenant to pay rent. 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 [14] to seek redress for violation of, or
to insist upon the strict performance of any covenant or
condition of this lease, shall not prevent a subsequent act which would have
originally constituted a violation from having all that 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. 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 premises.
Waiver of 26. It is mutually agreed by and between Owner and Tenant
Trial by Jury: 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 said premises, and any
emergency statutory or any other statutory remedy. It is further mutually
agreed that in the event Owner commences any summary proceeding for
possession of the premises, Tenant will not interpose any counterclaim of
whatever nature or description in any such proceeding including a
counterclaim under Article 4.
Inability to 27. This Lease and the obligation of Tenant to pay rent
Perform: 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 this 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 repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment
or fixtures if Owner is prevented or delayed from so doing by reason of
strike or labor troubles or any cause whatsoever including, but not limited
to, government preemption in connection with a National Emergency 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 of supply and
demand which have been or are affected by war or other emergency. [15]
Bills and 28. Except as otherwise in this lease provided, a xxxx,
Notices: statement, notice or communication which Owner may desire
or require 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 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.
Captions: 30. 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 provisions thereof.
Definitions: 31. The term "Owner" means a landlord or lessor, and as used
in this lease means only the owner, or the mortgagee in
possession, for the time being 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, the said Owner shall be and hereby is entirely freed and
relieved of all covenants and obligations of Owner hereunder, agreement
between the parties or their successors in interest, or between the parties
and the purchaser, at an 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 the Owner,
hereunder. The words "re-enter" and "re-entry" as used in this lease are not
restricted to their technical legal meaning. The term "business days" as
used in this lease shall exclude Saturdays (except such portion thereof as is
covered by specific hours in Article 29 hereof), 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.
Adjacent 32. If an excavation shall be made upon land adjacent to
Excavation- the demised premises, or shall be authorized to be made,
Shoring Tenant shall afford to the person causing or authorized to
cause such excavation, license to enter upon the demised
premises for the purposes 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 damage and to support the same by proper foundations without any claim for
damages or indemnity against Owner, or diminution or abatement of rent.
Security: 34. Tenant has deposited with Owner the sum of $118,750.00
as security for the faithful performance and observance by
Tenant of the terms, provisions and conditions of this lease; it is agreed that
in the event Tenant defaults in respect of any of the terms, provisions and
conditions of this lease, including, but not limited to, the payment of rent 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 Tenants 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 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 thereunder 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 or attempted encumbrance.
Estoppel 35. Tenant, at any time, and from time to time, upon
Certificate at least [16] 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.
Successors 36. The covenants, conditions and agreements contained in
and Assigns: 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. See Addendum Annexed.
SEE RIDER ANNEXED FOR ADDITIONAL PROVISIONS.
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: ELAN ASSOCIATES [CORP
SEAL]
/s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxx [L.S.]
..................................... ..........................
Witness for Tenant: CHEYENNE SOFTWARE, INC. [CORP
SEAL]
/s/ Xxx X. Xxxxxxxxx By: /s/ Xxxxxx Xxxxxx [L.S.]
..................................... ..............................
Xxxxxx Xxxxxx, Executive Vice
President, I.D. #00-0000000
Chief Financial Officer
ACKNOWLEDGEMENTS
CORPORATE OWNER CORPORATE TENANT
STATE OF NEW YORK ss: STATE OF NEW YORK ss:
County of County of
On this day of , 19 , before me On this day of , 19 , before me
personally came personally came
to me known, who being by me duly sworn, did to me known, who being by me duly sworn, did
depose and say that he resides depose and say that he resides
in in
that he is the of that he is the of
the corporation described in and which executed the corporation described in and which executed
the foregoing instrument, as OWNER; that he knows the foregoing instrument, as TENANT; that he knows
the seal of said corporation; that the seal the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; affixed to said instrument is such corporate seal;
that is was so affixed by order of the Board of that is was so affixed by order of the Board of
Directors of said corporation, and that he signed Directors of said corporation, and that he signed
his name thereto by like order. his name thereto by like order.
............................... ...............................
INDIVIDUAL OWNER INDIVIDUAL TENANT
STATE OF NEW YORK, ss: STATE OF NEW YORK, ss:
County of County of
On this day of , 19 , before me On this day of , 19 , before me
personally came personally came
to me known and known to me to be the individual to me known and known to me to be the individual
described in and who, as OWNER, executed the described in and who, as TENANT, executed the
foregoing instrument and acknowledged to me that foregoing instrument and acknowledged to me that
he executed the same. he executed the same.
............................... ...............................
ADDENDUM TO LEASE
-----------------
ELAN ASSOCIATES WITH CHEYENNE SOFTWARE, INC.
--------------------------------------------
1. structural
1a. not to be unreasonably withheld, delayed or conditioned
2. reasonably
3. at the time Landlord approves the installation, in which
event Tenant, at Tenant's expense, shall restore the premises to
the original condition at the expiration of the lease term
4. which are caused by
5. Tenant
6. Landlord shall deliver the premises in full compliance
with all applicable codes and laws.
7. throughout the term of the lease
8. or building violations
9. in such event Tenant shall be given notice and an
opportunity to cure, and shall hold Landlord harmless,
10. reasonably
11. and additional rent and other charges
12. Landlord represents and warrants that the Certificate of
Occupancy for this building is in full force and effect
13a. Intentionally Deleted.
13b. beyond any applicable cure period
13c. All expenses provided for herein to be reimbursed to
Owner shall be reasonable.
14. either party
15. Notwithstanding the above, there shall be no permissible
delay for any correction which is reasonably foreseeable, nor shall
insufficient funds constitute an acceptable reason for either party
to delay performance on its part to be performed.
16. 15 days'
INDEX TO RIDER TO LEASE BETWEEN ELAN ASSOCIATES,
LANDLORD, AND CHEYENNE SOFTWARE, INC., TENANT
-----------------------------------------------
PAGE
----
RIDER CONTROLS ..................................... 1
37. USE OF PREMISES .................................... 1
38. RENT ............................................... 1
39. PAYMENT OF RENT .................................... 2
40. REAL ESTATE TAXES .................................. 2
41. ASSESSMENTS AND NEW TAXES .......................... 5
42. SERVICES OR UTILITIES .............................. 6
43. ALTERATIONS ........................................ 7
44. TENANT'S RIGHT TO CANCEL ........................... 9
45. EXPIRATION OF TERM ................................. 9
46. RIGHT TO INSPECT ................................... 10
47. COMPLIANCE WITH LAW ................................ 10
48. NOTICES ............................................ 11
49. MEMORANDUM OF LEASE ................................ 12
50. MECHANIC'S LIENS ................................... 12
51. INDEMNIFICATION OF LANDLORD ........................ 12
52. INSURANCE .......................................... 12
53. RESTORATION OR REPAIR OF PREMISES .................. 15
54. CONDEMNATION ....................................... 16
55. CURING DEFAULTS .................................... 17
56. ASSIGNMENT OR SUBLETTING ........................... 18
57. DEFAULTS BY TENANT ................................. 23
58. INTENTIONALLY OMITTED .............................. 25
59. NO REINSTATEMENT ................................... 25
60. SUBORDINATION AND NON-DISTURBANCE .................. 26
61. ESTOPPEL CERTIFICATES .............................. 27
62. NO WAIVER .......................................... 28
63. OPTION TO RENEW .................................... 28
64. RIGHT OF FIRST REFUSAL ............................. 30
65. SIGNAGE ............................................ 31
66. INDEMNIFICATION .................................... 31
(i)
PAGE
----
67. REMEDIES CUMULATIVE ................................ 31
68. BROKER ............................................. 32
69. NO REPRESENTATIONS ................................. 32
70. SECURITY DEPOSIT ................................... 32
71. LANDLORD'S WORK .................................... 34
72. ENTIRE AGREEMENT ................................... 35
73. QUIET ENJOYMENT .................................... 35
74. SUCCESSORS AND ASSIGNS ............................. 35
(ii)
RIDER CONTROLS.
--------------
This Rider is attached to and made a part of the above-
referenced Lease. In the event of any conflict between the terms
of this Rider and the terms of the printed portion of the Lease,
the terms of this Rider shall govern and control.
37. USE OF PREMISES.
---------------
The premises may be used and occupied by said Tenant for
such office, research and,development, incidental and accessory
uses (including the cafeteria) and any other lawful use as shall
be permitted by the zoning ordinance of the Village of Lake Success
as the same presently exists and hereafter may be amended, and for
all other uses incidental and related thereto.
38. RENT.
----
During the term of this lease, Tenant covenants to pay
to the Landlord basic rental as follows:
(a) Tenant shall not be obligated to pay any rent or
taxes for the months of June, July and August 1995*; the first
monthly installment of rent and taxes shall be due and payable on
September 1, 1995. All of the other obligations contained in this
agreement on the part of the Tenant with respect to insurance,
maintenance, utilities, etc., shall be effective June 1, 1995 or
such later date as possession will be delivered.
(b) Commencing September 1, 1995, the rent, including
maintenance, payable by Tenant shall be as follows:
MAINTENANCE COMBINED RENT AND MAINTENANCE
(per. sq. feet) ANNUAL MONTHLY
--------------- ------ -------
0/0/00-0/00/00 Xxxx Xxxx Xxxx
0/0/00-0/00/00 Xxxx Xxxx Xxxx
9/1/96-8/31/97 $0.35 $1,385,000 $115,416.67
9/1/97-8/31/98 $0.70 $1,495,000 $124,583.33
9/1/98-8/31/99 $1.05 $1,530,000 $127,500.00
9/1/99-8/31/2000 $1.40 $1,565,000 $130,416.67
9/1/2000-8/31/2001 $1.75 $1,600,000 $133,333.33
9/1/2001-8/31/2002 $2.10 $1,635.000 $136,250.00
Any delay in delivery of possession of the Premises with Landlord's Work
completed in accordance with Article 71 shall entitle Tenant to pro tanto delay
in the payment of rent and maintenance.
(c) Date of Occupancy. Tenant acknowledges that it is aware that the
-----------------
premises are presently occupied by Chase Manhattan Bank, that the lease with
Chase Manhattan Bank will expire on January 31, 1995, on which date the premises
will be vacant and thereafter to be occupied by Tenant herein pursuant to this
lease.
1
* or the first ninety (90) days following the date on which Landlord delivers
the Premises to Tenant with Landlord's Work described in Article 71 completed.
Landlord will complete Landlord's Work for Tenant described in
Paragraph 71 of the Rider herein, on or before June 1, 1995.
39. PAYMENT OF RENT.
---------------
The annual basic rental shall be paid to the Landlord at
the address of the Landlord above set forth, in equal monthly
installments, in advance on the first day of each month during the
term, without notice or demand and without abatement, deduction or
set-off of any amount whatsoever, except as otherwise specifically
set forth herein.
40. REAL ESTATE TAXES.
-----------------
Except as hereinafter specifically set forth, Tenant
shall be obligated to pay all real estate taxes against the demised
premises and due and payable for the period commencing after the
rent commencement date (September 1, 1995) or as such date may be
extended in accordance with this lease. Said date shall be
adjusted if possession is delayed. A proration of the real estate
taxes will be made at the commencement and termination of the lease
to provide for the payment by Landlord for that portion of the
applicable taxes which do not relate to Tenant's obligations for
the payment of taxes under this agreement.
Taxes shall mean the real estate taxes and assessments
-----
directly imposed upon the Land and Building by the Town, Village
and School District in which the property is situated, excluding
interest and penalties thereon. If there shall be any dispute
concerning this provision, same shall be arbitrated under American
Arbitration Association rules. Income, franchise, transfer,
inheritance and capital stock taxes shall be deemed excluded from
the term Taxes for the purposes hereof. However, if and to the
extent that, due to a change in the method of assessment or
taxation, any income, franchise, transfer, inheritance, capital
stock and/or other tax or charge shall be directly attributable to
and substituted for the Taxes now or hereafter imposed upon the
-----
2
Land and the Building, such income, franchise, transfer,
inheritance, capital stock taxes, or other tax or charge, computed
as if Landlord owned or operated no property other than the Land
and the Building, shall be deemed included in the term Taxes for
the purposes hereof. -----
Landlord represents that there are currently no tax
abatements or tax exemptions and that the building has been fully
assessed as a completed structure.
Tenant shall make payment to Landlord on the first day
of each month during the term of the lease of a sum equal to one-
twelfth of the taxes levied, assessed and imposed by the local
taxing authorities imposed by the taxing authority for the prior
12 month period. Such payments shall be in conformity with the
statement to be rendered by Landlord of the monthly amount to be
paid by Tenant pursuant to this lease for such taxes. Such
payments, when received by Landlord, shall be deposited in an
interest bearing account and interest earned thereon shall be paid
to Tenant annually.
Tenant's obligation to pay such taxes shall survive the
termination of this lease. Payments of additional rent for any
Taxes due from Tenant shall be made, and are subject to the
conditions hereinafter provided in this paragraph.
Within 90 days after the end of each Lease Year, Landlord
shall render to Tenant a statement together with a true copy of all
bills for Taxes on which any statement shall have been based,
showing the amount of the Taxes for such Lease Year and adjustment,
if any, in the Tax Payment due from Tenant for such Lease Year,
indicating therein in reasonable detail the computation of such
adjustment. Any adjustment due from Tenant for Taxes shall be paid
monthly during the course of the applicable year. At the
expiration of the terms of the lease, the tax amounts paid or
payable by Tenant shall be apportioned based on the date of
termination.
Subject to the right of contest hereinafter provided,
Tenant shall pay the amount of the Tax Payment shown on such
3
statement (or the balance or a proportionate installment thereof,
if only an installment is involved) within twenty (20) days after
being billed therefor by Landlord.
Landlord's statement for a Tax Payment of any Lease year
shall be conclusive and binding upon Tenant unless (i) within 30
days after receipt of such statement, Tenant shall notify Landlord
that it disputes the correctness of the statement and tax bills,
specifying the respects in which the statement is claimed to be
incorrect, and (ii) if such dispute shall not have been settled by
agreement, Tenant shall submit the dispute to arbitration pursuant
to American Arbitration Association rules and procedures, within
90 days after notice, if such notice is given. Pending the
determination of such dispute by agreement or arbitration as
aforesaid, Tenant shall pay additional rent in accordance with
Landlord's statement, and such payment shall be without prejudice
to Tenant's position. If the dispute shall be determined in
Tenant's favor, Landlord shall forthwith pay Tenant, or Tenant
shall be entitled to credit against rents then or thereafter due
hereunder, the amount of Tenant's overpayment of rents resulting
from compliance with Landlord's statement plus interest thereon at
the usual bank interest rate from the date or dates of Tenant's
payment to the date of determination.
Subject to the further provisions of this paragraph,
Landlord shall be under no obligation to contest the Taxes or the
assessed valuation of the Land and Building for any Lease Year, or
to refrain from contesting the same, and may settle any such
contest on such terms as Landlord, in its sole reasonable judgment,
considers proper. If Tenant shall, by timely notice to Landlord,
so request, Landlord shall institute appropriate proceedings to
reduce the Taxes or the assessed valuation of the Land and Building
for any Lease Year and use its best efforts jointly with Tenant,
to effect a reduction therein. Tenant shall pay the reasonable
costs and expenses of such proceedings and any litigation thereon
as additional rent on Landlord's demand therefor, subject to
recoupment from any refund obtained. Landlord shall not
4
compromise, cancel or withdraw such proceedings which shall have
been instituted at the request of Tenant, unless Landlord shall
first notify Tenant of its proposal to do so and shall not have
received, within 10 days thereafter, objections in writing from
Tenant, accompanied by a written agreement to reimburse Landlord
forthwith for all of its costs and expenses and relieve Landlord
of all of its commitments in connection with such proceedings and
to indemnify and hold Landlord harmless against all liability,
loss, damage or expense connected with the past or future conduct
of such proceedings for which such objector shall be liable. Upon
receipt of such objection, agreement and reimbursement, Landlord
shall transfer the responsibility for such proceedings to Tenant
who may carry on the same in its own name or in Landlord's name,
as may be appropriate, at its own expense and shall be entitled to
recoupment for all of its costs and expenses from any refund
obtained, but not otherwise. However, if the taxes for such Tax
Year or an installment thereof shall be reduced before such Taxes
or such installment shall be paid, the amount of the costs and
expenses of obtaining such reduction (but not exceeding the amount
of such reduction) shall be repaid by Landlord to said Tenant and
shall be added to and be deemed a part of the Taxes for such Lease
Year.
41. ASSESSMENTS AND NEW TAXES.
-------------------------
Either the Landlord or Tenant shall have the right, by
appropriate proceedings, to protest or contest any assessment or
reassessment for real estate taxes, or any special assessment, or
the validity of either, or of any change in assessments or the tax
rate.
In any such contest or proceedings instituted by Tenant,
the Tenant may act in its own name and/or the name of the Landlord
and the Landlord will, at the Tenant's request, cooperate with the
Tenant in any way the Tenant may reasonably require in connection
with such contest or proceedings. The Landlord shall sign such
consents or other documents as the Tenant may request. Any contest
or proceedings conducted by the Tenant shall be at the Tenant's
5
expense and, in the event any penalties, interest or late charges
become payable with respect to the real estate taxes as the result
of such contest, the Tenant shall pay the same.
Tenant shall, in addition to the foregoing, pay any new
tax of a nature not presently in effect but which may be hereafter
levied, assessed, or imposed upon the Landlord or the demised
premises, if such tax shall be based on or arise out of the
ownership, use or operation, of the leased premises. This
additional obligation shall include charges now or formerly in the
nature. of real estate taxes though denominated "fees" and
attributable to some specific matter or service. For the purpose
of computing Tenant's liability for such new type of tax or fee,
the leased premises shall be deemed the only property of Landlord.
42. SERVICES OR UTILITIES.
---------------------
Except as herein otherwise provided, the Landlord shall
not be required to furnish any services or utilities to the
premises during the term of this Lease, the Tenant hereby assuming
full and sole responsibility for the supply of, and payment for,
such services and utilities, including water. Landlord has agreed
to pay for all utilities prior to June 1, 1995*
Tenant acknowledges that it has examined the building and
grounds, and will accept possession of the property in an "as is"
condition, provided all utilities and services are delivered to
Tenant in good working order.
Landlord agrees to furnish and pay for the services of
a building superintendent, (who shall be on duty full time, five
and one half days per week, except holidays - weekdays from 8 A.M
to 4:30 P.M. and on Saturdays from 8 A.M. to 12:30 P.M.) and will
be responsible for structural repairs, elevator repairs, roof
repairs, landscaping, repairs to lawn and garage sprinklers,
repairs to building HVAC (consisting of 14 roof-top units) and to
plumbing system, snow and ice removal from parking lot, maintenance
and repair to parking lot, flagpoles and miscellaneous repairs.
Landlord agrees that the services and the performance of such
superintendent will be reasonably satisfactory to Tenant.
6
* or until Landlord has delivered the Premises to Tenant with Landlord's Work
completed in accordance with Article 71.
Tenant shall be responsible for maintenance and
replacement, if necessary, of the following: rubbish removal,
office cleaning, window cleaning, snow removal from walkways, cost
of all utilities, telephone, damage caused by negligence or misuse
by Tenant of sewer lines, maintenance and operation of cafeteria,
security; additional air conditioning for computers, cafeteria and
U.P.S. systems; the building's electrical systems (if caused by
Tenant's negligence or use of same, exceeding systems' capacity),
lamps, fixtures, tenant's signage, carpets and finishes.
In the event Landlord is no longer the owner of the
Building and the Premises, Tenant, at its option, upon fifteen (15)
days prior written notice to Landlord, shall have the right to
assume Landlord's responsibilities set forth in this paragraph as
well as Landlord's obligation to provide the insurance described
in Article 52A and B. In the event Tenant exercises this option
effective on the date Tenant assumes the insurance and maintenance
obligations, the Annual Rent set forth in Article 38 of this Lease
shall be reduced by the sum of $2.50 per square foot plus the then
applicable Maintenance Escalation per square foot described in
Article 38B. At the request of Tenant, Landlord agrees to execute
an agreement setting forth the new Annual Rent and Monthly Rent to
be payable by Tenant during the balance of the Term of this Lease
and any renewal thereof.
43. ALTERATIONS.
-----------
Notwithstanding any provisions in this lease to the
contrary, the Tenant may place partitions, trade or other fixtures
(including lighting fixtures), personal property, machinery,
equipment and the like in the premises and may make such
improvements and alterations therein and thereon as it may desire
at its own expense, subject to the provision of the following
subparagraphs. Tenant acknowledges that Landlord has conceded to
Tenant the equivalent of $1,500,000 in "free-rent" in exchange for
payment by Tenant for all the alterations and other work to be
performed. All such work and installations (except personal
property, fixtures [other than electrical fixtures], machinery and
7
equipment) heretofore or hereafter made or installed by or for the
Tenant shall become the property of Landlord and in case of damage
or destruction thereto by fire or other causes, Landlord shall have
the right to recover the value thereof as its own loss from any
insurance company with which it has insured the same, or by
separate claim, to claim an award in the event of condemnation.
Subject to the provisions herein set forth, Tenant shall
be permitted to make interior and non-structural alterations to the
building at any time after the execution of this agreement after
first obtaining written approval of the Landlord, which approval
shall not be unreasonably withheld, conditioned or delayed. On or
before February 1, 1995, Tenant shall be required to submit
architectural working drawings and specifications with respect to
interior, exterior and structural alterations, including electric
and reflective ceiling plans, and upon receiving Landlord's
approval, to obtain at Tenant's expense all necessary permits,
insurance and approvals. Such plans shall indicate the location,
total number of persons occupying the space and all equipment
locations. Within seven (7) business days after delivery to
Landlord of the architectural working drawings and specifications,
Landlord shall submit to Tenant any reasonable comments Landlord
may have with respect thereto. Tenant shall thereafter, within
five (5) business days, resubmit to Landlord revised architectural
working drawings and specifications incorporating Landlord's
reasonable comments. Landlord's failure to respond within the time
period set forth herein shall be deemed approval of Tenant's
submission. Landlord shall have the right to approve or disapprove
any proposed contractors in connection therewith (but such approval
shall not be unreasonably withheld, conditioned or delayed) and
Landlord shall designate on the drawings submitted which of said
improvements shall remain after the termination of the lease and
which shall be removed by Tenant at Tenant's expense.
If Tenant desires, Landlord will obtain bids from three
sub-contractors, recommended by Tenant or Landlord, and known to
Landlord as reputable.
All alterations [as shown on the drawings to be submitted
to the Building Department (if required)] costing in excess of
$15,000 are to be performed by Landlord or its designee, on a
construction management basis, at cost plus 10%, through
subcontractors approved by Tenant and Landlord, provided the cost
to perform any such work shall be no greater than the cost for same
obtained from a reliable general contractor. This provision shall
apply only so long as Landlord remains as Owner of the premises.
8
Landlord may withhold approval of any contractor selected
by Tenant provided the contract is in excess of $100,000, if such
contractor fails to post, for the benefit of Landlord and Tenant,
a completion bond in form and amount reasonably satisfactory to
Landlord and further, to provide certificates of insurance and
proof of payment of premiums thereon.
Tenant shall maintain the building in the same condition
as at present throughout the Term (other than reasonable wear and
tear and damage by casualty) except for those items which are the
responsibility of Landlord, as hereinbefore enumerated.
Upon receipt of Tenant's plans, (not later than February
1, 1995), Landlord will, at its sole cost and expense, contract for
HVAC engineering drawings which will be designed in accordance with
Tenant's architectural space plans, conforming with lease, whereby
Landlord assumes responsibility for design of the original
installation and duct work distribution of Landlord's 14 rooftop
units. Tenant is solely responsible for payment for the
installation of its HVAC work, computers and special equipment.
44. TENANT'S RIGHT TO CANCEL.
------------------------
Tenant is hereby given the right to cancel this lease and
to vacate the building on August 31, 2000 by giving the Landlord
prior written notice by certified or registered mail or overnight
delivery service not later than August 31, 1999 and paying to
Landlord, simultaneously with the giving of such notice, the sum
of $275,000 and an additional payment of $275,000 on or before
July 15, 2000.
45. EXPIRATION OF TERM.
------------------
At the expiration of the term, the Tenant will remove its
goods and effects and will (a) peaceably yield up to the Landlord
the premises in good order and condition, excepting ordinary wear
and tear, damage, destruction or loss by fire or other casualty or
by any other cause of any kind or nature, provided the Tenant
delivers to the Landlord all insurance proceeds paid to the Tenant
in connection with any such loss or casualty to the extent of the
9
Landlord's interest in the premises and (b) repair all damage to
the premises and the fixtures, appurtenances and equipment of the
Landlord therein and thereon, caused by the Tenant's removal of its
furniture, fixtures, equipment, machinery and the like, and the
removal of any improvements or alterations which have been
installed after the execution of this agreement, which Tenant is
obligated to remove as hereinbefore set forth.
46. RIGHT TO INSPECT.
----------------
The Landlord shall, upon 48 hours' advance oral notice
to the Tenant (except in an emergency), have the right at all
reasonable times during business hours to inspect the premises,
show the same to prospective mortgagees and during the last six (6)
months of the term, show the same to prospective tenants, and at
all times to comply with the requirements imposed on Landlord by
this Lease, or as may be otherwise necessary, provided however,
that the Landlord shall use all reasonable effort not to disturb
the Tenant's use and occupancy of the premises.
47. COMPLIANCE WITH LAW.
-------------------
During the term the Tenant shall, at its sole cost and
expense, promptly comply with all laws, ordinances, orders, rules,
regulations and requirements of all federal, state and municipal
governments and governmental agencies, which are applicable to the
particular use, manner of use or occupancy thereof by Tenant and
maintain the premises in compliance with the requirements of the
insurance companies from which the Tenant purchases the coverage
required by this Lease.
Landlord states that the building has handicap
(wheelchair) access with respect to elevators and the second floor
toilets.
After prior notice to the Landlord, the Tenant shall have
the right to contest by appropriate legal proceedings (in the name
of the Tenant or the Landlord or both) at the Tenant's sole cost
and expense and with counsel of the Tenant's choosing, the validity
of any law, ordinance, order, rule, regulation or requirement with
which, by the provisions of this Lease, it is obligated to comply.
10
If, by the terms of any such law, ordinance, order, rule,
regulation or requirement, compliance therewith may be legally held
in abeyance without incurring any lien or charge of record against
the premises, and without subjecting the Landlord to any fines,
penalties or any other liability for failure to comply therewith,
the Tenant may postpone compliance until the final determination
of any such proceedings, provided that all proceedings shall be
prosecuted with due diligence.
48. NOTICES.
-------
Any notice, request, communication or demand under this
Lease shall be in writing and shall be considered properly
delivered when addressed as hereinafter provided, given or served
by registered or certified mail (return receipt requested) and
deposited in the United States general or branch post office or by
Federal Express. Any notice, request, communication or demand by
the Tenant to the Landlord shall be addressed to the Landlord at
0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, with a copy to
Landlord's attorney, Xxxxxxx Xxxxxxx, XXX Xxxxx, Xxxx Xxxxx/00xx
Xxxxx, Xxxxxxxxx, XX 00000-0000, until otherwise directed in
writing by the Landlord and, if by Landlord to Tenant, shall be
addressed to Tenant at 0 Xxxxxxxxxx Xxxxx, Xxxxxx Xxxxxxx, XX 00000
with a copy to Tenant's attorney, Xxxxxxx X. Xxxxxxxxx, c/o
Meltzer, Lippe, Goldstein, Wolf, Xxxxxxxxx & Sazer, P.C.,
000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, until otherwise directed in
writing by the Tenant. Rejection or other refusal to accept a
notice, request, communication or demand or the inability to
deliver the same because of a changed address of which no notice
was given shall be deemed to be receipt of the notice, request,
communication or demand sent.
This Lease is executed in several counterparts, each of
which shall be deemed to be an original, and all counterparts shall
constitute one and the same instrument. This Lease shall not be
binding and in effect until at least one counterpart, duly executed
by the Landlord and the Tenant, has been delivered to each party
hereto.
11
49. MEMORANDUM OF LEASE.
-------------------
The parties shall, if requested by either, execute a
memorandum of this Lease for recording purposes. The requesting
party shall pay all costs of recording.
50. MECHANIC'S LIENS.
----------------
If any mechanic's or other liens or order for the
payment of money shall be filed against the subject premises or any
building or improvement thereon by reason of or arising out of any
labor or material furnished or alleged to have been furnished or
to be furnished to or for the Tenant at the leased premises, or for
or by reason of any change, alteration or addition or the cost or
expense thereof or any contract relating thereto, other than in
respect of alterations and repairs made by Landlord, either on its
own or at the request of Tenant, the Tenant shall cause the same
to be cancelled and discharged of record, by bond or otherwise as
allowed by law at the expense of the Tenant, within thirty (30)
days after written demand therefor, and shall also defend on behalf
of the Landlord at the Tenant's sole cost and expense, any action,
suit or proceeding which may be brought thereon for the enforcement
of such liens or orders, and the Tenant will pay any damages and
satisfy and discharge any judgment entered therein and save
harmless the Landlord from any claim or damage resulting therefrom.
51. INDEMNIFICATION OF LANDLORD
---------------------------
The Tenant shall keep, save and hold harmless Landlord
from any and all damages and liability arising out of the occupancy
of the Tenant, the Tenant's agents or servants, and from any loss
or damage arising from any fault or negligence by the Tenant or any
failure on the Tenant's part to comply with any of the covenants,
terms and conditions herein contained.
52. INSURANCE.
---------
(a) Insurance on the Real Property: Landlord shall
------------------------------
purchase and maintain, at Landlord's expense during the term of the
lease for the benefit of the Landlord an "All-Risk" perils property
policy on the Real Property at full replacement cost valuation,
without depreciation. The policy shall provide Loss of Rental
12
Income payable to and insuring the interest of the Landlord as to
the value of the rental obligation hereunder to the extent of one
year's gross rental value.
(b) Boiler and Machinery Insurance: landlord shall also
------------------------------
purchase and maintain during the term of the lease at Landlord's
expense for the benefit of Landlord Broad Form Boiler and Machinery
coverage covering all insurable objects. Said policy shall provide
for Repair and Replacement valuation on the insured objects. The
policy shall name the Landlord as a Named Insured and Loss Payee
as its interest appears.
(c) Property Insurance; Indemnity for Damage to Tenant's
----------------------------------------------------
Personal Property; Landlord shall also purchase and maintain during
-----------------
the term of the Lease at Landlord's expense insurance for those items
of property belonging to Landlord which, (under Paragraph 42 of this lease)
are Tenant's responsibility.
Tenant shall maintain at its own expense during the term
of the lease, replacement cost insurance on Tenant's machinery,
equipment, furniture and fixtures, goods, wares, merchandise and
improvements/betterments in sufficient amounts against damage
caused by Fire and all other perils covered by a standard All Risk
Insurance policy. Landlord and Tenant agree to waive their
respective right of subrogation against the other and shall obtain
a waiver from their respective insurance companies releasing these
carriers' subrogation rights against the other party.
(d) Liability Insurance: Tenant shall maintain at its
-------------------
own expense during the term of the lease, liability insurance as
follows:
(1) Comprehensive General Liability insurance at
a minimum of $1,000,000 Combined Single Limit (Bodily Injury &
Property Damage), including all standard Broad Form Comprehensive
General Liability extensions without limitations. Contractual
liability, if not written on a blanket basis, must be endorsed to
cover indemnities specified herein. This policy shall be written
on an "occurrence" basis.
(2) Umbrella Liability insurance at a minimum of
$10,000,000 Limit, providing excess coverage over all coverage
13
included in the Comprehensive or Commercial General Liability and
Broad Form Comprehensive General Liability endorsement.
Landlord as Additional Insured: The insurance policies noted
------------------------------
above shall name Landlord (and Landlord's Mortgagee(s), and
Managing Agent, if required) as "additional insureds".
Notice to the Landlord: All insurance policies noted above
----------------------
shall be endorsed to provide the owner with notice of cancellation
at least thirty (30) days prior to the actual date of cancellation
or non-renewal.
Certificates of Insurance: Tenant shall furnish the Landlord
-------------------------
with Certificates of Insurance evidencing that all insurance
required and purchased by the Tenant is in full force and effect.
All of said certificates shall be promptly furnished to the
Landlord, but in no event later than ten (10) days prior to the
expiration date of coverage.
Hold Harmless and Indemnification: Tenant shall indemnify and
---------------------------------
hold Landlord harmless from and against any and all loss, cost
(including reasonable attorneys' and witnesses' fees and court
costs), damages, expenses and liability in connection with claims
for damages resulting from injury and/or death of any person or
damage to any property arising out of the maintenance, use, care
or control of the demised premises other than any claims arising
as a result of any structural or other defects which are Landlord's
responsibility.
Tenant assumes liability for any Personal injury, Property
Damage (including loss of use), cost or expense resulting in claims
arising out of the discharge dispersal, release or escape of
pollutants or contaminants, limited, however, to acts or omissions
of Tenant in connection with its business activities and operations
in the premises and excluding any discharge by equipment, systems,
duties and obligations of Landlord.
14
The Comprehensive General liability coverage in Section (d)(1)
should evidence that the $1,000,000 limit is subject to no
deductible. In the case of Umbrella liability, if there is a
deductible or self-insured retention, it should clearly be spelled
out that Tenant assumes full responsibility for same.
Tenant's failure to provide and keep in force all the
aforementioned insurance shall be regarded as a material default
hereunder, entitling owner to exercise any or all remedies in the
event of default.
53. RESTORATION OR REPAIR OF PREMISES.
---------------------------------
If the Building on the leased premises shall be damaged
or destroyed by any cause whatsoever, during the term of this
lease, Landlord shall, within ninety (90) days after such casualty
commence repair and replacement of the Building at its own expense
and within nine (9) months after commencement of such repair,
restore the Building so that the property after such repair and
replacement shall be substantially in the same condition as prior
to the damage or destruction, and shall do so, even though the
proceeds of any insurance policies shall be insufficient to
reimburse the Landlord therefor. From the date of such casualty
until thirty (30) days after the Building is so repaired and
restored, Rent and all other charges and items payable hereunder
shall xxxxx in such proportion as the part of the Building thus
destroyed or rendered untenantable bears to the total Building.
However, in the event that fifty percent (50%) or more of the
Building is destroyed or rendered untenantable by fire or other
casualty then either party shall have the right to terminate this
Lease effective as of the date of the casualty, by giving to the
other party within sixty (60) days of such casualty, written notice
of termination. If said notice of termination is given within the
sixty (60) day period, this Lease shall terminate and Rent and all
other charges shall xxxxx as aforesaid from the date of such
casualty, and Landlord shall promptly repay to Tenant any Rent paid
in advance which has not been earned as of the date of such
casualty. If said notice is not given and Landlord is required or
15
elects to repair or rebuild the Building as herein provided, then
Tenant shall repair and replace Tenant's Property to at least their
condition prior to the damage or destruction.
The foregoing provision regarding Landlord's obligation
to repair and replace the buildings shall not include Tenant's
partitions, equipment or property of any kind.
If Tenant elects to terminate this Lease because
Landlord's repairs are not completed within the time period set
forth herein, Landlord shall have the right to negate Tenant's
notice of cancellation provided such repairs are completed to such
extent to permit Tenant's use and occupancy of the Demised Premises
within thirty (30) days after Tenant's notice of cancellation.
Notwithstanding the foregoing provisions of this
paragraph if substantial damage occurs during the last two years
of this lease, Landlord shall not be obligated to repair the
building, and may retain the proceeds of such insurance as its own
property and by notice given within thirty (30) days of such damage
occurring, serve written notice on Tenant cancelling the lease as
of the date of such occurrence.
54. CONDEMNATION.
------------
A. If at any time during the Term, any municipal or
other governmental agency takes title by eminent domain and/or by
the exercise of right of condemnation, to the whole of the Demised
Premises or such material portion thereof, [including any
substantial impairment of egress and ingress to the Demised
Premises and Marcus Avenue or twenty (20%) percent or more of the
parking area closest to Marcus Avenue] as would render, in the
reasonable judgment of Tenant, the balance of the Demised Premises
not suitable for Tenant's use (hereinafter referred to as the
"proceeding"), this Lease shall terminate and expire on the date
of such taking and, provided that the Tenant has vacated the
premises, the Annual Rent and other charges provided to be paid by
Tenant shall be apportioned and paid to the date of such taking.
B. If, at any time during the Term, title to less than
materially all of the Demised Premises shall be taken as aforesaid
16
and the Lease is not terminated as hereinabove set forth, Landlord
shall restore the building on the Demised Premises to an
architecturally complete unit with reasonable promptness, subject
to delay beyond Landlord's reasonable control. During such
Restoration, both Annual Rent and other charges payable by Tenant
shall be adjusted until restoration is complete and the Demised
Premises is again fully occupied by Tenant.
C. Notice of any termination relating to any
condemnation or eminent domain proceeding must be made by the party
electing to terminate this Lease within sixty (60) days after
receipt of written notice of such taking. In the event of such
termination, both Landlord and Tenant shall thereupon be released
from any liability thereafter accruing hereunder.
D. In the case of any taking pursuant to the provisions
of this Article, Landlord shall be entitled to receive any award
that may be made for the value of the portion of the Demised
Premises so taken and the value of any unexpired term of this
Lease, but Tenant shall have the right to pursue a separate claim
against the condemning authority for the value of its leasehold
fixtures and equipment and its moving and relocation expenses.
Landlord and Tenant shall be entitled to separate reimbursement
from the condemning authority of all reasonable costs, fees and
expenses incurred in the collection of any such awards.
E. Notwithstanding anything contained in this Article
to the contrary, Landlord shall not be required to restore the
Demised Premises if there are less than two (2) years remaining of
the Term at the time of such condemnation. If Landlord elects not
to restore the Demised Premises, then this Lease shall be deemed
cancelled as of the date of the taking.
55. CURING DEFAULTS.
---------------
Should either party fail to perform any of its
obligations imposed by the terms of this lease within 20 days after
written notice, but in any event, regardless of such notice or the
lack thereof, promptly before the accrual of any penalty as
provided by law or by any mortgage held by an institutional lender
17
superior to the lease, the other party may perform the same and add
or subtract any such sum or sums paid or expended in such
performance to or from any rent then due or thereafter falling due.
However, this does not grant Tenant any license or privilege to
allow the premises to be without the insurance coverage or the
liability insurance protection provided by this lease, and the
failure to promptly comply with such requirement shall entitle
lessor to immediately obtain the necessary insurance, and the cost
thereof shall be additional rent and collectible as such.
56. ASSIGNMENT OR SUBLETTING.
------------------------
A. Subject to Section 56(d) below, Tenant shall not
assign, mortgage or pledge this Lease, nor underlet or sublease the
Premises or any part thereof without the written consent of
Landlord first had and obtained, which consent shall not be
unreasonably withheld, conditioned or delayed and subject to any
necessary consent of any mortgagee of the Premises; nor after such
written consent has been given shall any assignee or sublessee
assign, mortgage or pledge this Lease or such sublease, or underlet
or sublease the Premises or any part thereof, including, without
limitation, any collateral re-assignment, mortgage or pledge of
this Lease in favor of the previous tenant hereunder, without an
additional written consent by Landlord and such mortgagee. No
assignment or sublease, whether or not consented to in the manner
aforesaid, shall in any way relieve or release Tenant from
liability upon any of the covenants of this Lease, and
notwithstanding any such assignment or sublease, the responsibility
and liability of Tenant hereunder shall continue in full force and
effect until the expiration of the Term.
B. If this Lease is assigned, or if the Premises or any
part thereof are sublet or occupied by anybody other than Tenant,
Landlord shall have the right, in its sole discretion, to collect
rent from the assignee, sublessee or occupant, and apply the amount
collected to the Rent payable hereunder; but no such collection
shall be deemed a waiver of this covenant against assignment and
18
subletting, or the acceptance of the assignee, sublessee or
occupant as Tenant.
C. If Tenant shall desire to assign this Lease or to
sublet the Premises in whole or in part, Tenant shall submit to
Landlord the following information, accompanied by a written
request for Landlord's consent to such assignment or subletting:
(i) the name and address of the proposed assignee or subtenant;
(ii) a description identifying the space to be sublet and Tenant's
improvements included therein; (iii) the terms and conditions of
the proposed assignment or subletting; (iv) the nature and
character of the business of the proposed assignee or subtenant;
and (v) current financial information and any other information
Landlord may reasonably request with respect to the proposed
assignee or subtenant.
In connection with any assignment, underletting or
sublease for which consent is sought, the following additional
conditions shall be fulfilled:
(i) An Event of Default shall not then, or at the
time such assignment or subletting shall become effective,
have occurred and be continuing.
(ii) In case of a subletting, it shall be expressly
subject to all of the obligations of Tenant under this Lease
and the further condition and restriction that the sublease
shall not be assigned, encumbered or otherwise transferred to
the subleased premises or further sublet by the sublessee in
whole or in part, or any part thereof suffered or permitted
by the sublessee to be used or occupied by others, without the
prior written consent of Landlord in each instance.
D. Every subletting hereunder is subject to the express
condition, and by accepting a sublease hereunder each subtenant
shall be conclusively deemed to have agreed that, if this Lease
should be terminated prior to the end of the stated term or any
renewal term hereof, or if Landlord shall succeed to Tenant's
estate in the Premises, then at Landlord's election the subtenant
shall attorn to and recognize Landlord as subtenant's landlord
19
under the sublease and the subtenant shall promptly execute and
deliver any instruction Landlord may reasonably request to evidence
such attornment.
E. Notwithstanding anything to the contrary hereinabove
set forth, no assignment of this Lease shall be binding upon
Landlord unless the assignee shall execute and deliver to Landlord
an agreement, in recordable form, whereby such assignee agrees
unconditionally to be bound by and to perform all of the
obligations of Tenant hereunder and further expressly agrees that,
notwithstanding such assignment, the provisions of this Article
shall continue to be binding upon such assignee with respect to all
future assignments and transfers. A failure or refusal of such
assignee to execute or deliver such an agreement in recordable form
shall not release the assignee from its liability for the
obligations of Tenant hereunder assumed by acceptance of the
assignment of this Lease.
F. As a condition to any assignment or sublease being
effective as against Landlord, a fully executed copy of the
assignment or sublease shall be delivered to Landlord before its
effective date.
G. Tenant further agrees, if there shall be a consent
to a proposed assignment or subletting under the provisions of this
Article, and if Tenant shall receive from its assignee any
consideration for the assignment, howsoever designated, or shall
receive from its subtenant any sublet rental, howsoever designated,
which exceeds the rental provided for hereunder, either on a
monthly basis or in the aggregate, or both, including, but not
limited to, all sums paid for the sale or rental of said assignor
or sublessor Tenant's fixtures, leasehold improvements, equipment,
furniture, furnishings or other personal property, Landlord shall
not be entitled to receive any portion of any sums received by
Tenant, which sums shall be the sole and exclusive property of
Tenant.
20
H. Subject to Subparagraph I hereof and notwithstanding
anything contained in this Article to the contrary, in the event
that Tenant desires to sublease the Premises or assign this Lease
to any other party, the terms and conditions of such sublease or
assignment shall be communicated to Landlord in writing at least
fifteen (15) days prior to the effective date of any such sublease
or assignment, and Landlord shall have the option, exercisable in
writing to Tenant within fifteen (15) days after Landlord's receipt
of said communication, to recapture the Premises which is the
subject of the proposed sublease, and, at the option of Landlord,
to enter into a lease with such prospective sublessee or assignee,
so that such party shall then become the direct tenant of Landlord
hereunder. In the event of such recapture, this Lease shall
terminate as to the space recaptured as of the date thereof, except
for any obligations of Tenant arising prior to such termination or
intended by their terms to survive such termination.
Notwithstanding the foregoing, in the event Landlord elects to
recapture the Premises, Tenant shall have the right to negate said
recapture by giving Landlord notice, within ten (10) days following
the date Tenant receives notice from Landlord of its election to
recapture, that Tenant elects to withdraw its aforesaid request to
assign or sublet, in which event this Lease shall continue in full
force and effect.
(a) Notwithstanding any contrary provision of this
Article 56, the following actions may be taken without the consent
of Landlord: (i) Tenant shall have the absolute right to sublet,
assign or otherwise transfer its interest in this Lease to a
licensee, franchisee or any parent or operating subsidiary of
Tenant, or subsidiary of Tenant's parent, or to a corporation with
which it has committed to merge or consolidate, without Landlord's
approval, written or otherwise; (ii) Tenant shall have the right
to assign or sublet this Lease to an Affiliate of Tenant; and
otherwise grant a security interest in this Lease to a bank,
21
insurance company or other recognized institutional lender (the
"Secured Creditor"), as collateral security for the performance by
Tenant of its obligations to Secured Creditor in connection with
Tenant's financing but no such assignment, subletting or transfer
shall relieve Tenant of its obligations hereunder.
(b) In connection with any mortgage, assignment or
other security interest in favor of the Secured Creditor, Landlord
will execute and deliver any consents, waivers or other
instruments, and in such form, as the Secured Creditor may
reasonably request to give effect to the Secured Creditor's rights
hereunder; provided, however, that any further assignment or
subletting of or under this Lease by the Secured Creditor following
a default by Tenant under any security agreement in favor of the
Secured Creditor shall be subject to the terms of, and require, the
prior written consent of Landlord under this Article 56.
(c) Anything to the contrary in this Article
notwithstanding, Landlord's consent shall not be required to an
assignment by Tenant of this Lease or a sublease by Tenant of the
whole of the Premises to the purchaser in connection with the sale
of Tenant's business either by way of a sale of assets or stock or
in connection with a merger, consolidation or corporate
reorganization, but in any such event, Tenant shall remain liable
under the terms of this lease.
(d) Notwithstanding anything contained in this Article
56(d) to the contrary, Tenant shall provide Landlord with notice
of any assignment or subletting.
(e) Except as may be effected hereunder, at no time
during the term of this lease shall there be more than two
sublessees occupying the premises or parts thereof, in addition to
the Tenant or the operator of any cafeteria, day care center of
health facility located in the Building and the Premises.
57. DEFAULTS BY TENANT.
-------------------
A. The occurrence of any of the following shall
constitute a default and breach of this Lease by Tenant:
22
(i) Any failure by Tenant to pay Rent or make any other
payment required to be made by Tenant hereunder within five (5)
days after receipt of written notice from the Landlord.
(ii) A failure by Tenant to observe and perform any other
material provision of this Lease to be observed or performed by the
Tenant, where such failure continues for twenty (20) days after
written notice thereof by Landlord to Tenant, except that this
twenty (20) day period shall be extended for a reasonable period
of time if the alleged default is not reasonably capable of cure
within said twenty (20) day period and Tenant proceeds to
diligently cure the default.
B. In the event of any such default by Tenant, then
Landlord shall be entitled to all of the following remedies:
(i) terminate this Lease by giving written notice of
termination to Tenant, in which event Tenant shall immediately
surrender the Demised Premises to Landlord. If Tenant fails to so
surrender the Demised Premises, then Landlord may, without
prejudice to any other remedy it has for possession of the Demised
Premises or arrearages in Rent or other damages, re-enter and take
possession of the Demised Premises and expel or remove Tenant and
any other person occupying the Demised Premises or any part
thereof, in accordance with applicable law; or
(ii) Landlord may re-enter and take possession of the
Demised Premises without terminating the Lease in accordance with
applicable law, and relet the Demised Premises and apply the Rent
received to the account of Tenant. In the event Landlord so re-
enters and takes possession of the Demised Premises as set forth
above, Landlord agrees to use reasonable efforts to relet the
Demised Premises for a commercially reasonable rate at the time of
such reletting. No reletting by Landlord is considered to be for
Landlord's own account unless Landlord has notified Tenant in
writing that this Lease has been terminated. In addition, no such
reletting to be considered an acceptance of Tenant's surrender of
the Demised Premises unless Landlord so notifies Tenant in writing;
or
23
(iii) re-enter the Demised Premises without terminating
the Lease and without being liable for any damages, whether caused
by the negligence of Landlord or otherwise, and do whatever Tenant
is obligated to do under the Lease. Tenant shall pay to Landlord,
upon demand, the reasonable expense paid by Landlord in satisfying
Tenant's obligations under the terms of this Lease. Any sums so
expended by Landlord shall bear interest from the date expended
until the date Landlord is repaid.
C. Notwithstanding anything to the contrary contained
in this Lease: (i) Landlord shall not have any right to accelerate
the Rent and other amounts payable hereunder, xxx Tenant for any
consequential, punitive or incidental damages, such as any claims
for lost profits and/or lost business opportunity, or xxx Tenant
for the cost to renovate the Demised Premises for any prospective
tenant except to correct or remove changes made by Tenant without
Landlord's consent (where required); (ii) in the event of any
default by Tenant under this Lease, Landlord shall in each case use
its reasonable efforts to mitigate its damages.
D. If Landlord obtains possession of the Demised
Premises as a result of the Tenant's abandonment of same or by a
decree from a court of competent jurisdiction, this shall not be
construed as an election to terminate this Lease unless Landlord
provides Tenant with a written notice of this election.
E. If a petition for relief shall be filed by Tenant
pursuant to any state or federal bankruptcy or insolvency law or
if Tenant shall be an adjudicated bankrupt, or if Tenant shall make
a general assignment for the benefit of creditors, or if in any
proceeding based upon the insolvency of Tenant, a receiver of
Tenant or its tenant shall be appointed and shall not be discharged
within sixty (60) days thereafter, then Tenant shall be in default
under the terms of this Lease, and Landlord may, to the extent
permitted by law, exercise all rights and remedies available to
Landlord under this Lease or in law or equity occasioned by said
default. If Tenant shall become the subject of any bankruptcy or
insolvency proceeding under any state or federal law, whether or
24
not pursuant to a petition or other proceeding filed by or on
behalf of Tenant or by any other party, then the Tenant (whether
as debtor in possession or in any other capacity), or any trustee
or other party or entity, acting on behalf of Tenant, or exercising
the rights of Tenant hereunder shall:
(i) Afford to Landlord all rights and benefits to which
Landlord is entitled under any applicable statute or rule,
including, by way of example, cure of existing defaults or adequate
assurance or prompt cure; compensation for pecuniary loss incurred
by Landlord arising as a result of Tenant's acts or adequate
assurance of prompt compensation therefor; adequate assurance of
future performance of Tenant's obligations under this Lease, which
may be secured by the posting of security deposits, advance
payments on account of real estate taxes or other charges as
accrued.
(ii) Timely perform all acts, and make all payments to
Landlord as required by this Lease without exception, subject to
applicable statute or rule.
58. Intentionally Omitted.
----------------------
59. NO REINSTATEMENT.
-----------------
No receipt of moneys by the Landlord from the Tenant
after the termination or cancellation of this lease, in any lawful
manner, shall reinstate, continue or extend the term of this lease,
or affect any notice theretofore given to the Tenant, or operate
as a waiver of the right of the Landlord to enforce the payment of
fixed or additional rent or rents then due, or thereafter falling
due, or operate as a waiver of the right of the Landlord to recover
possession of the leased premises by property suit, action,
proceeding, or remedy. It is agreed that, after the service of
notice to terminate or cancel this lease, or the commencement of
suit, action or summary proceeding, or any other remedy, or after
a final order or judgment for the possession of the leased
premises, Landlord may demand, receive and collect moneys on
account and any moneys so collected shall be deemed to be payments
towards satisfying the Tenant's obligations to the Landlord.
25
The failure of either party to enforce any agreement,
condition, covenant or term, by reason of its breach by the other
party, after notice had been given, shall not be deemed to void or
affect the right of said party to enforce the same agreement,
condition, covenant or term on the occasion of a subsequent default
or breach.
60. SUBORDINATION AND NON-DISTURBANCE.
----------------------------------
A. This lease shall be subject and subordinate to any
and all mortgages which may now or hereafter affect the Landlord's
interest in the real property of which the Demised Premises form
a part and of all renewals, modifications, consolidations,
replacements and extensions thereof. This clause shall be self-
operative and no further instruments of subordination shall be
required. In confirmation of such subordination, Tenant shall
execute promptly any certificate or instrument that Landlord and/or
the holder of any mortgage may reasonably request to evidence such
subordination.
B. The foregoing subordination as it pertains to any
mortgages hereafter made, which term includes any agreement
modifying any mortgage now in existence or hereafter made, is
expressly contingent upon the agreement of the holder of any such
mortgage, in recordable form, to be delivered to the Tenant, which
agreement shall provide, in pertinent part as follows:
"So long as Tenant is not in default under
this lease beyond any applicable grace and
cure period, which would entitle Landlord to
terminate this lease or would cause, without
any further action of Landlord, the
termination of this lease or would entitle
Landlord to dispossess Tenant thereunder,
mortgagee agrees with the Tenant that the
mortgagee (i) will not disturb the peaceful
and quiet possession of the Premises by Tenant
by reason of any foreclosure or otherwise,
(ii) will not join Tenant as party in any
action or proceeding brought pursuant to the
mortgage and (iii) will release casualty
insurance proceeds and condemnation awards to
which the holder of the mortgage is entitled
under the terms of the mortgage to be applied
toward restoration of the Premises consistent
with the provisions of the lease."
(C) In the event that such mortgagee acquires the
interest of Landlord or comes into the possession of or acquires
26
title to the Premises by reason of foreclosure, Tenant shall be
bound to mortgagee under all of the provisions of the lease for
the balance of the term thereof with the same force and effect as
if mortgagee was the landlord under the lease, and Tenant agrees
to attorn to the mortgagee as its landlord, such attornment to be
effective and self-operative without the execution of any further
instruments on the part of either of the parties hereto, and
further, in such event, mortgagee shall be bound to the Tenant
under all of the provisions of the lease and Tenant shall, from and
after such event, have the same remedies against mortgagee for the
breach of any agreement contained in the lease that the Tenant
might have had under the lease against the Landlord thereunder.
61. ESTOPPEL CERTIFICATES.
----------------------
At any time and from time to time either party, upon
request of the other party, will execute, acknowledge and deliver
an instrument, stating, if the same be true, that this Lease is a
true and exact copy of this Lease between the parties hereto, that
there are no amendments hereof (or, if not so, stating what
amendments there may be), that the same is then in full force and
effect and that, to the best of its knowledge, there are no
offsets, defenses or counterclaims with respect to the payment of
Rent reserved hereunder or in the performance of the other terms,
covenants and conditions hereof on the part of Tenant or Landlord,
as the case may be, to be performed (or, if not so, setting forth
those offsets, defenses or counterclaims existing), and that as of
such date no default has been declared hereunder by either party
or if a default has been declared, such instrument shall specify
same. Such instrument will be executed by the other party and
delivered to the requesting party within fifteen (15) days of
receipt, or else the statements made in the proposed estoppel
request shall be deemed to be correct.
The following terms shall have the meanings below
described when used in this lease:
The term "Landlord" as used in this lease means only the
owner of the then current interest of the Landlord in the demised
27
premises or, as the case may be, the successor thereto from time
to time. In the event of any transfer at any time of the interest
of the Landlord, the transferor shall be and is hereby entirely
freed and relieved of all covenants and obligations of the Landlord
hereunder, and it shall be deemed and construed without further
agreement between the parties and the transferee that the
transferee of the Landlord's interest has assumed and agreed to
carry out any and all covenants and obligations of the Landlord
hereunder.
62. NO WAIVER.
----------
The failure of either party to insist in any one or more
instances upon a strict performance of any of the covenants of this
lease, or to exercise any option herein contained, shall not be
construed as a waiver of, or relinquishment for the future, of the
performance of such covenant, or the right to exercise such option,
but the same shall continue and remain in full force and effect.
The receipt by the Landlord of annual or additional rent, with
knowledge of the breach of any covenant hereof, shall not be deemed
a waiver of such breach. No waiver by either party of any
provision hereof shall be deemed to have been made unless expressed
in writing and signed by said party.
63. OPTION TO RENEW.
----------------
Providing that Tenant is not in default under the terms
of this lease, either at the time of giving such notice or at the
expiration of the original term, Tenant is hereby given the right,
option and privilege to extend the term of this lease for an
additional five year period, by giving written notice to Landlord
by registered or certified mail postmarked at least one year prior
to the expiration of the original term. During said option term,
all of the provisions of this lease shall remain in full force and
effect, except that
(a) there shall be no right on the part of the Tenant for
a further extension, and
(b) there shall be no rent concession during the renewal
term,
28
(c) the rent shall be increased by the lesser of the
following: (i) $3.00 per sq. ft. of the Building, excluding
storage and archive space (not exceeding 7500 square feet) and
garage space or (ii) increase in the C.P.I. to be determined as
follows: the product derived by multiplying the rental paid during
the last year of the original term by the percentage increase, if
any, in the Consumer Price Index compared to such Index at the
commencement of the initial term of the lease. Such escalation
shall be determined on the first day of the extension period and
shall apply throughout the extension period;
CONSUMER PRICE INDEX: "Consumer Price Index" (CPI) shall
--------------------
mean "Consumer Price Index for Urban Wage Earners and Clerical
Workers, New York -- Northern New Jersey -- Long Island -- All
Items" as published by the United States Department of Labor,
Bureau of Statistics. If such index shall cease to use the
1982-1984 Index of 100 as the basis for calculation or if a
substantial change is made in the basis for such index, the index
shall be adjusted to reflect such change; and if such index is no
longer available, such annual amount shall be adjusted by such
method as is then being used to measure the value of the dollar for
the New York metropolitan area.
In the event that the U.S. Department of Labor, Bureau
of Labor Statistics, changes the publication frequency of the Price
Index (as defined in this section) so that a Price Index is not
available to make a cost-of-living adjustment of annual rent, the
cost-of-living adjustment shall be based on the percentage
difference between the Price Index for the closest preceding month
for which a Price Index is available and the Price Index for the
Base Month.
(d) maintenance escalation shall be increased each year
during said extension at the same rate as the increases are
indicated for the original term (Par. 38(b)).
64. RIGHT OF FIRST REFUSAL.
-----------------------
Tenant shall have the right of first refusal to purchase
the demised premises but only under the circumstances as
29
hereinafter in this Article set forth. If, at any time during the
term of this lease, Landlord shall receive a bona fide offer, other
than at public auction, from a third party (which does not have
the power of eminent domain) for the purchase of the demised
premises, which offer Landlord shall desire to accept, Landlord
shall promptly deliver to Tenant a copy of such offer, and Tenant
may, within 10 business days thereafter, elect to purchase the
demised premises on the same terms as those set forth in such
offer. If Tenant shall not accept such offer within the time
herein specified therefor, said right of first refusal shall cease
to exist, but this lease shall continue otherwise on all the other
terms, covenants, and conditions in this lease set forth. If the
transaction with the party who made the offer is not consummated
for any reason, this right of first refusal shall remain in full
force and effect.
In the event Landlord desires to sell the demised
premises, Landlord shall first notify Tenant of its intention.
This right of refusal shall be inapplicable to a
transfer, by way of sale, gift, or devise, including a trust by any
individual having an interest in, or constituting the Landlord,
from any such related party to another but shall apply to any
subsequent transfer to a third person not so defined. For the
purpose of this Article, if the then owner of the demised premises
or a participant in such ownership shall be an individual, a
related party shall include a spouse, lineal descendant or spouse
of such descendant, ancestor or sibling (whether by the whole or
half blood), a partnership of which such owner is a member, a joint
ownership or ownership in common, which includes the then owner of
the demised premises, or partnership, joint venture or corporation,
the majority of whose securities is owned by the owner of the
demised premises, or any one or more of the foregoing parties. If
the then owner of the demised premises shall be a corporation, a
related party shall include an affiliate, subsidiary or parent
corporation, a successor by merger or consolidation, or the holder
or holders of the majority of the securities of such corporation.
30
If the premises shall be conveyed to the Tenant under
this right of first refusal, any prepaid rent shall be apportioned
and applied on account of the purchase price.
65. SIGNAGE.
--------
A. It is expressly understood and agreed that as an
inducement for Tenant to enter into this Lease that Tenant shall
have the right to install, on the building and existing stonewall,
and elsewhere on the premises, if permitted by law, Tenant's
signage which shall set forth the Tenant's name. All costs and
expenses, including permits, if any, shall be paid by Tenant.
B. Prior to or simultaneously with the execution of
this Lease, Tenant shall submit to Landlord its sign package, which
shall be deemed approved by the Landlord upon Landlord's execution
of this Lease. Landlord will fully cooperate with Tenant in filing
any required signage application, permit and/or variance for said
signage or with respect to the Demised Premises generally. Tenant
agrees that its signage must comply with applicable governmental
requirements.
66. INDEMNIFICATION.
----------------
Each party hereby indemnifies and holds the other party
harmless from and against any and all claims, demands, liabilities,
and expenses, including attorney's fees, arising from its
negligence or willful misconduct of its agents, employees or
contractors in or about the Demised Premises.
67. REMEDIES CUMULATIVE.
--------------------
All rights and remedies herein given to the Landlord for
the recovery of the leased premises because of the default by the
Tenant in the payment of any sums which may be payable pursuant to
the terms of this lease, or upon the breach of any of the terms
thereof, or the right to re-enter and take possession of the leased
premises upon the happening of any of the defaults or breaches of
any of the covenants, or the right to maintain any action for rent
or damages and all other rights and remedies allowed at law or in
equity, are hereby reserved and conferred upon the Landlord as
distinct, separate and cumulative remedies, and no one of them,
31
whether exercised by the Landlord or not, shall be deemed to be in
exclusion of any of the others.
68. BROKER.
-------
The parties agree that this lease was brought about
through the services of Xxxxxx & Xxxxxxx, Inc., licensed real
estate brokers in the State of New York. Landlord agrees to pay
commissions to the broker in accordance with a separate written
agreement. Tenant hereby agrees to indemnify Landlord against the
claims of any other broker who claims to have brought this space
to Tenant's attention in connection with the leasing of the
premises concerned herein.
69. NO REPRESENTATIONS.
-------------------
The Tenant is fully familiar with the physical condition
of the leased premises, the building, improvements, fixtures and
equipment thereof, and Tenant takes the demised premises in their
"as is" condition. The Landlord has made no representation
whatsoever in connection with the conditions of the demised
premises or of the buildings, improvements, fixtures or equipment
thereof, except as herein expressly set forth, and the Landlord
shall not be liable for any latent or patent defects therein.
70. SECURITY DEPOSIT.
-----------------
A. Upon the signing of the lease, Tenant shall deposit
with Landlord the sum of One Hundred Eighteen Thousand Seven
Hundred and Fifty ($118,750.00) Dollars, by good check payable to
Landlord, or by Letter of Credit, as provided below, as security
for the full and faithful performance and observance by Tenant of
the terms, provisions and conditions of this lease. If Tenant
defaults in respect of any of the terms, provisions and conditions
of this lease, on its part to be performed or observed, including,
but not limited to, the payment of Fixed Rent and Additional Rent,
Landlord may use, apply or retain the whole or any part of the
security so deposited to the extent required for the payment of any
Fixed Rent and Additional Rent or any other sum as to which Tenant
is in default or for any sum which Landlord may expend or may be
required to expend by reason of Tenant's default in respect of any
32
of the terms, covenants and conditions of this lease. If Tenant
shall have fully and faithfully complied with all of the terms,
provisions and conditions of the lease as of the Expiration Date,
the security shall be promptly returned to Tenant within thirty
(30) days after the Expiration Date and after delivery by Tenant
of possession of the Premises to Landlord. If Landlord applies or
retains any part of the security so deposited, Tenant, upon demand,
shall deposit with Landlord the amount so applied or retained, so
that Landlord shall have the full deposit on hand at all times
during the term of this lease. Application of the security
deposited by Tenant shall not be deemed to limit Landlord's rights
against Tenant in the event of a default under the terms,
provisions and conditions of this lease. Any cash deposit shall
be placed in an interest bearing account with all interest earned
thereon, less one (1%) percent per annum accruing to the benefit
of Tenant annually.
B. In lieu of a cash security, Tenant shall have the
right during the Term of this Lease to deliver to the Landlord a
clean, irrevocable and unconditional letter of credit (such letter
of credit, and any replacement thereof as provided herein, is
called a "Letter of Credit") issued and drawn upon any commercial
bank reasonably approved by the Landlord with offices for banking
purposes in the City of New York or Nassau County, New York
("Issuing Bank"), which Letter of Credit shall have a term of not
less than one (1) year, to be renewed automatically from year to
year, shall be in form and content reasonably satisfactory to
Landlord and their counsel, for the account of the Landlord and be
in the amount specified above. The Letter of Credit shall provide
that the Issuing Bank shall pay to the Landlord or its duly
authorized representative an amount up to the face amount of the
Letter of Credit upon presentation of an affidavit from an officer
of the Landlord specifying that a default under this lease has
occurred, that Landlord has given the required notice of the
default to Tenant and that Tenant has failed to cure the default
33
and the Letter of Credit and a sight draft in the amount shall be
drawn and delivered to Landlord.
C. The Letter of Credit will automatically be renewed
for successive periods of one (1) year. In the event that the
Letter of Credit is cancelled by the Issuing Bank for any reason
whatsoever, the Landlord shall receive at least thirty (30) days'
notification of such cancellation from the Issuing Bank. In the
event Tenant shall fail to deliver a replacement Letter of Credit
or Cash in lieu of the cancelled Letter of Credit within fifteen
(15) days of such notification, the Landlord shall have the right
to draw the entire amount of the Letter of Credit and to hold the
proceeds as a cash security deposit pursuant to the terms of this
paragraph.
D. In the event of a sale by the Landlord of the
Building or leasing of the Building, Landlord shall have the right
to transfer either the Letter of Credit or any sums collected
thereunder by Landlord from the Issuing Bank, together with any
other sums then held by Landlord as such security, to the vendee
or lessee, and Landlord thereupon shall be released by Tenant from
all liability under this Article. Tenant agrees to look solely to
the new landlord for the return of the Letter of Credit or any sums
collected thereunder and any other security, and it is agreed that
the provisions hereof shall apply to every transfer or assignment
made of the Letter of Credit or any sums collected thereunder and
any other security to a new landlord.
71. LANDLORD'S WORK: Landlord agrees to perform the
---------------
following work at its sole cost and expense:
(1) Create and construct a new lobby and front entrance
facade which would substantially enhance both the front and rear
entrances including new doors, floor materials, design features,
etc. in accordance with design drawings to be created by The
Xxxxxxx Group.
(2) Landscape entire front of building included but not
limited to new shrubbery, planting, curbs, etc. Landscape in
34
accordance with plans performed by a recognized landscape
architect, in conjunction with The Xxxxxxx Group.
(3) Install handicap ramp in rear of building.
(4) Perform all ADA requirements, as to all bathroom
facilities, for handicapped persons.
(5) Demolish and remove miscellaneous offices, storage
room and mechanical rooms located in the garage area in order to
maximize parking and create +\- 13 new parking spaces. Tenant will
indicate to Landlord which of such rooms Tenant would prefer to
lease "as is".
(6) Reseal and re-stripe parking lot.
(7) Power wash and clean entire facade of building.
72. Entire Agreement.
-----------------
This lease contains the entire agreement between the
parties, and any agreement hereafter made shall not operate to
change, modify or discharge this lease in whole or in part unless
such agreement is in writing and signed by the Landlord and Tenant.
73. QUIET ENJOYMENT.
----------------
Tenant, upon paying the rent and performing the other
terms, provisions and covenants of this lease, shall and may, at
all times during the term of this lease, peaceably and quietly
have, hold and enjoy the leased premises free of molestation by the
Landlord.
74. XXX FINANCING.
--------------
Tenant has informed Landlord that it intends to finance
improvements to and fixtures, furniture and equipment in the
Premises by way of a Bond Resolution from the Nassau County
Industrial Development Authority of the State of New York or
other municipal agency. Tenant shall have the right to terminate
this Lease if by January 19, 1995 (the "Finance Termination
Date") Tenant shall not have obtained, at its sole cost and
expense, a Letter of Inducement from Nassau County for the
issuance of Industrial Revenue Bonds covering the improvements to
and fixtures, furniture and equipment in the Premises. Tenant
agrees to immediately apply for such Letter of Inducement and to
pursue the applications therefor with due diligence. Tenant must
35
exercise the right of termination by written notice to Landlord
made on or before the third (3rd) business day following the
Finance Termination Date. If Tenant terminates this Lease,
Landlord shall return the amount paid by Tenant to Landlord on
the execution of this Lease and upon such return, this Lease
shall be terminated and all of the rights and obligations of
Landlord and Tenant hereunder shall become null and void and of
no further force and effect.
75. SUCCESSORS AND ASSIGNS.
-----------------------
The covenants and agreements contained in this lease
inurc to the benefit of, and are binding upon, the parties hereto,
their successors and assigns, but this provision does not modify
the provisions governing assignment, as provided for in
Paragraph 56.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
ELAN ASSOCIATES
By: /s/ Xxxxxx Xxxxx
-------------------------
CHEYENNE SOFTWARE, INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------
Xxxxxx Xxxxxx, Executive
Vice President and Chief
Financial Officer
ACKNOWLEDGMENTS
---------------
STATE OF NEW YORK)
: ss.:
COUNTY OF NASSAU )
On this 20th day of December, 1994, before me personally came
Xxxxxx Xxxxx, to me known to be the person who executed
the foregoing instrument, and who, being duly sworn by me, did
depose and say that he is a member of the firm of ELAN ASSOCIATES,
a co-partnership, and that he executed the foregoing instrument in
the firm name of ELAN ASSOCIATES, and that he had authority to sign
the same, and he acknowledged to me that he executed the same as
the act and deed of said firm for the uses and purposes therein
mentioned.
/s/XXXXXX XXXXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Nassau County
Commission Expires Feb. 16, 0000
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK)
On this 19th day of December, 1994, before me personally came
Xxxxxx Xxxxxx, to me known, who being by me duly sworn, did depose
and say that he resides at No. ; that he
is the Executive Vice President and Chief Financial Officer of
CHEYENNE SOFTWARE, INC., the corporation described in, and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of
Directors of said corporation and that he signed his name thereto
by like order.
/s/ Xxx X. Xxxxxxxxx
----------------------------
Notary Public
XXX X. XXXXXXXXX
NOTARY PUBLIC, State of New York
No. 4859329
Qualified in Nassau County
Commission Expires April 21, 1996
ELAN ASSOCIATES,
Landlord,
-with-
CHEYENNE SOFTWARE, INC.
Tenant.
========================================
LEASE
========================================
XXXXXXX XXXXXXX
Counselor at Law
EAB PLAZA
WEST TOWER, 14TH FL.
UNIONDALE, N.Y. 11556-0120
----------
(000)000-0000
