Kiddie Academy of Flowerfield Amendment #1 Page 1 of 6
AMENDMENT #1 TO LEASE
BETWEEN
GYRODYNE COMPANY OF AMERICA, INC.
(Landlord)
AND
XXXXX XXXXX AND XXXX XXXXX
(Tenant)
This Lease Amendment, dated October 7, 1997 is between Gyrodyne Company of
America, Inc. ("GCA") as Landlord having its principal place of business at 0
Xxxxxxxxxxx, Xxxxx 00, Xx. Xxxxx, Xxx Xxxx and Xxxxx Xxxxx and Xxxx Xxxxx
("Xxxxx"), having its principal place of business (referred to collectively as
the ("Parties") at 0 Xxxxxxxxxxx, Xxxxx 00 and 74 and amends the Agreement of
March 23, 1995 the ("Lease"). It is mutually agreed and understood that Tenant
has rented from Xxxxxxxx 0 Xxxxxxxxxxx, Xxxxx 00, deemed to be approximately
1,350 square feet for a term commencing September 1, 1996 and ending on the
Expiration Date of the Lease between the Parties and as herein amended.
Article 1 DEFINITIONS
1. The term "Suite 74" includes the Leased Premises defined herein as set
forth in Exhibit F.
2. The term "Leased Premises" as defined in the Lease is hereby amended to
include Suite 74.
3. All terms and definitions set forth in the Lease of March 23, 1995 are
applicable to this Amendment unless specifically amended herein.
Article 2 RENT ABATEMENTS
The Rent Schedule in Exhibit E of the Lease is hereby deleted in its
entirety and replaced with Exhibit E2 attached hereto and made a part hereof. It
is mutually agreed and understood that Landlord is granting a rent abatement on
Suite #74 effective September 1, 1996 ending November 30, 1996. It is mutually
agreed that No Base Rent, exclusive of adjustments as provided in Addendum
Section V, Paragraph 4. items (a), (b), (c), (d) and (e), shall be due for the
following month(s): September, October and November, 1996. The entire Base Rent
otherwise due and payable for the Abatement Month(s) shall become immediately
due and payable upon the occurrence of an event of default by Tenant under this
Lease, default as defined in Addendum Section V, Paragraph 10. subparagraph
DEFAULT. Effective December 1, 1996 and for the
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subsequent 33 months ending August 31, 1999 Tenant shall pay a base rent of
$1,000.00 per month exclusive of the underlying pass-throughs provided in Lease
Addendum Section V, Paragraph 4. items (a), (b), (c), (d) and (e). It is agreed
that effective September 1, 1999, and thereafter, the rental rate applicable to
Suite #74 shall be equal to the rental rate applicable to Suite #44.
Article 3
Intentionally omitted.
Article 4 AIR CONDITIONING MAINTENANCE
The following provision replaces Addendum Section I, Paragraph 5. Air
Conditioning Maintenance in its entirety.
In order to reflect the actual as-built premises and the addition of Suite
#74, Landlord and Tenant agree to the following:
There are eight (8) five (5) ton roof (Suite #44) and one (1) four (4) ton
ground mount (Suite #74) air conditioning systems that serve the demised
premises. The Tenant shall have the option to utilize these systems provided
Landlord is notified by Tenant, not later than March 1st of each year, that said
systems will be used. For the first five (5) years of this Lease, the Landlord
shall, for Suite #44, at no cost to Tenant, on a best efforts basis, maintain,
service, repair, and replace parts as needed to keep these systems in good
operating condition. In the event Tenant abuses or is negligent in the proper
operation of the air conditioning system, then any and all expenses related to
the repair of the air conditioning system(s) as a result of the abuse or
negligent use shall be payable by Tenant to Landlord as additional rent. On the
sixth anniversary of the Commencement Date of this Lease, Tenant shall have the
option of either (a) paying to Landlord a base charge of six thousand dollars
($6,000.00) per annum for air conditioning maintenance thereafter adjusted
annually by the same factor utilized in Addendum Section V, Paragraph 4.
Subparagraph (f) Cost of Living Adjustments or; (b) electing to retain an
independent contractor, acceptable to Landlord, to maintain the air conditioning
system. Tenant shall notify Landlord of its intention at least thirty (30) days
prior to the sixth anniversary date of the Lease. Tenant shall submit to
Landlord the name of the air conditioning maintenance contractor for Landlord's
approval, which approval will not be unreasonably withheld. In addition, if
Tenant elects to retain an independent contractor, Tenant will return the air
conditioning system(s) to Landlord at the end of the lease term, in its original
condition on the Commencement Date less normal wear and tear. In the event that
Tenant elects to maintain the air conditioning system by using an independent
contractor for two consecutive years, Landlord will have the option to refuse to
thereafter provide maintenance for the air conditioning system.
It is mutually agreed that the new air conditioning unit in Suite #74
shall be subject to the same conditions as pertain to the eight units in Suite
#44 with the exception that the Tenant's
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maintenance payment obligation shall increase to six thousand seven hundred
fifty dollars ($6,750.00) upon the seventh anniversary of the Commencement Date
of the lease dated 23 March, 1995. All other terms and conditions under the
lease of 23 March, 1995 apply.
Article 5 SEPTIC SYSTEM
It is agreed that the additional bathroom and sink drains installed in
Suite #74 have been connected to cesspool systems already assigned for Tenant's
exclusive use. Landlord and Tenant herewith agree that Addendum Section I,
Paragraph 8. is herewith reaffirmed in its entirety.
Article 6 PROPANE HOT WATER HEATER
In order to reflect the actual as-built premises, Landlord recognizes that
Tenant installed a propane fired hot water heater in Landlord's boiler room to
provide hot water to the Leased Premises during the period April 15 to October
15 of each year. The parties have agreed that from October 16 to April 15,
annually, Tenant shall receive, at no additional charge to Tenant, all its hot
water from Landlord's oil fired hot water heating system reflecting the standard
winter heating season. From April 16 to October 15, annually, Tenant shall be
responsible for providing hot water at its sole expense. In recognition that the
boiler is totally inactive during the summer season (April 16-October 15) and
that the hot water heater is totally inactive during the winter season (October
16-April 15), it is agreed that the parties hereto will cause the propane tank
to be filled annually at April 15th by the Landlord and October 15th by the
Tenant in order to maintain a "found it full, left it full" system of expense
allocation. As a convenience to Tenant, Landlord will order propane and xxxx
Tenant as appropriate.
Article 7 RENT SECURITY
It is agreed that Tenant has leased additional improved space from the
Landlord effective September 1, 1996, now therefore, the herein covenant shall
modify Addendum Section V, Paragraph 1. Rent Security. Tenant shall be obligated
to deposit an additional six thousand dollars ($6,000.00) rent security,
payable, two thousand dollars ($2,000.00) September 1, 1997, two thousand
dollars ($2,000.00) September 1, 1998 and two thousand dollars ($2,000.00)
September 1, 1999. Said total amount to remain on deposit for the balance of the
lease term with each deposit payment subject to all the terms and conditions
applicable to rent security. All other provisions of Addendum Section V,
Paragraph 1. are herewith reaffirmed in their entirety.
Article 8 GARBAGE/TRASH REMOVAL COST - FOR ESCALATION PURPOSES ONLY:
Addendum Section V, Paragraph 4. (d) Garbage/Trash Removal Cost - For
Escalation Purposes Only is herewith amended to read $3,894.00 ($.30 x 12,980
sq. ft.) of the base annual rent is allocated to garbage/trash and recyclable
material removal for the demised premises.
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Landlord has reserved in the rental base a flat $.101 charge per square foot
for the removal of pallets, oversized debris, dumpster area cleanup, land
allocation expense and overhead charges. It is mutually agreed that the
$.30/sqft rate is a pro rata apportionment of cartage expenses for garbage and
separable recyclables. Any change in the Town of Smithtown Town Code which may:
establish a commercial cartage district, implement direct charge tipping fee(s)
and/or administrative assessment(s) on Landlord, change the composition of
required recyclable(s), or otherwise impact the total cartage expense allocable
to the demised premises shall be passed-through to Tenant. Further, if at any
time after the commencement of this lease and before the end of the lease term
period, the cartage rates charged to the Landlord by the Landlord's xxxxxx
increase, there will be an adjustment in the annual rent predicated on Tenant's
allocable base. Tenant's base "peg" for all additional charges, regardless of
source, shall be 12,980/100,214 sq. ft. or 13% of the total current xxxx of
$30,000.60. The total cartage xxxx for calculation purposes shall be deemed to
include all Town of Smithtown and cartage company charges plus applicable
federal, state and local taxes. Any resultant additional rental, converted to a
monthly charge, shall be added to the monthly rental rate in effect at that
time.
Article 9 PARKING
In order to reflect the actual as-built premises and accommodate Tenant's
rental of Suite #74, Addendum Section I, Paragraph 2. Parking is herewith
amended to read forty-five (45) in the parking area superseding the twenty-five
(25) spaces originally allocated. In addition, seven (7) parking spaces at the
entrance supersedes two (2) parking spaces at the entrance.
Article 10 TRADE FIXTURES
Section III, Paragraph 1. (f) is hereby amended to include:
Propane fired fast recovery Hot Water Heater
Awning with metal frame
Iron Mountain Forge 6502 - Play Center 2
Iron Mountain Forge KK48 - 3 Slide Climber
Iron Mountain Forge KK102 - Activity House
Iron Mountain Forge KK56 - Sand Structure with Roof
Iron Mountain Forge SR1 04-M - Whale Kid Rider Spring Rocker
Iron Mountain Forge SR1 06-IM - 4 Seat Xxxxxx Totter
Iron Mountain Forge SR1 08-JM - Bulldozer Kid Rider Spring
Rocker Blinds in all interior and exterior windows
Miscellaneous shelving
Eight (8) GE refrigerators
Three (3) microwaves
One (1) Delfield commercial refrigerator
One (1) Three compartment sink
One (1) CresCor food warming unit
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Miscellaneous pantry equipment
A leased ADT Security and Surveillance System
Article 11
It is mutually agreed and understood that Tenant has caused to have
installed, at its sole expense, electrically operated germicidal sterilization
units which are an integral part of the HVAC systems. It is agreed Tenant shall
maintain said units at its sole expense.
Article 12 CORPORATE GUARANTY OF LEASE
The "Corporate Guaranty of Lease" dated March 23, 1995 will remain in full
force and effect under the terms and conditions set forth in the Lease. However,
the Parties hereby agree that although the Guarantor of the Lease, Maryland Day
Care Centers, Inc. recognizes this Amendment #1 to the Lease, it does not
guaranty those obligations beyond those guaranteed upon the execution of the
Lease of March 23, 1995.
Article 13
This Agreement sets forth all of the covenants between the Parties to this
Agreement respecting the matters set forth herein and there are no covenants,
promises, agreements, conditions or understandings, either oral or written,
between or among them, other than as set forth in this Agreement and the Lease.
This Agreement and the Lease is intended by the parties to completely express
the full agreement of the Parties and has been entered after full investigation,
neither party relying upon any statement made by anyone else that is not set
forth in this Agreement or the Lease. Except as otherwise provided in this
Agreement, no alteration, amendment, change or addition to this Agreement shall
be binding on any party to this Agreement unless and until in writing and signed
by the parties hereto.
The covenants, conditions and agreements contained herein shall bind and
inure to the benefit of the parties hereto and their respective heirs,
distributees, executors, administrators, successors and assigns.
This Agreement may be executed in counterparts, each of which shall be an
original, but all of which shall constitute one and the same instrument.
The Lease, except as amended herein, is in full force and effect.
Conflict: Should any conflict in terms and conditions arise between this
Amendment and the Lease, the terms contained in this Amendment shall supersede
over the conflicting terms in the Lease.
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WITNESS: Gyrodyne Company of America, Inc.
10/7/97 /s/ [ILLEGIBLE}
-------------------------------- -----------------------------------
TENANT:
/s/ Xxxxx X. Xxxxx
-------------------------------- -----------------------------------
Xxxxx Xxxxx
/s/ Xxxx Xxxxx
-------------------------------- -----------------------------------
Xxxx Xxxxx
GUARANTOR:
Maryland Day Care Centers, Inc.
/s/ Xxxxxx Xxxxxx
-------------------------------- -----------------------------------
Xxxxxx Xxxxxx, President
Kiddie Academy of Flowerfield Amendment #1 Page 6 of 6
EXHIBIT E 2
GYRODYNE COMPANY OF AMERICA, INC.
XXXXX XXXXX AND XXXX XXXXX
C.O.L ADJUSTMENT SCHEDULE
5% INCREASE FIRST 3 YEARS AND 4% RATE INCREASE THEREAFTER
LEASE CALCULATED WITH 3 MONTHS FREE RENT AND DISCOUNT OF $160,716.35 APPLIED
IN FIRST THREE YEARS
XXXXXXX XXXXXXX XXXX
XXXXX 00 XXXXXXXXXX $1 PER SO FT AVERAGE COST
BASE REVENUE @ DISCOUNT 3YRS PER SQ FT
RENTAL YEAR $17.50 & 3 MO'S FREE
*PER SQ. FT $17.50 11630 SOFT ANNUAL $203,525.00 SEP95-AUG96 $203,525.00 3M0 RENT FREE $112,464.66 $9.67
GROSS MONTHLY $16,960.42 SEP96-AUG97 $211,953.84 5% INCREASE $158,381.72 $13.62
SEP97-AUG98 $220,804.13 5% INCREASE $167,232.01 $14.38
SEP98-AUG99 $230,096.93 5% INCREASE $230,096.93 $19.78
SEP99-AUGOO $237,902.88 4% INCREASE $237,902.88 $20.46
SEPOO-AUGO1 $246,021.07 4% INCREASE $246,021.07 $21.15
------------- ---------------------------
TOTAL RENTAL INCOME FIRST 6 YRS $1,350,303.84 $1,152,099.26 $16.51
------------- ---------------------------
SEPO1-AUGO2 $254,463.98 4% INCREASE $254,463.98 $21.88
SEPO2-AUGO3 $262,244.62 4% INCREASE $263,244.62 $22.63
SEPO3-AUGO4 $272,376.47 4% INCREASE $272,376.47 $23.42
SEPO4-AUGO5 $281,873.61 4% INCREASE $281,873.61 $24.24
SEPOS-AUGO6 $291,750.63 4% INCREASE $291,750.63 $25.09
------------- ---------------------------
TOTAL RENTAL INCOME SECOND 5 YRS $1,383,709.31 $1,363,709.31 $23.45
------------- ---------------------------
TOTAL RENTAL FIRST 11 YEARS $2,714,013.15 $2,515,808.57 $19.67
------------- ---------------------------
ANNUAL
MONTHLY COLA MONTHLY COLA
RENT BASE (A) COLA INCREASE INCREASE
$12,496.07 (B) $168,576.85
$13,198.48 (B) $177,005.89 $702.40 $8,428.84
$13,936.00 (B) $185,855.98 $737.52 $8,850.28
$19,174.74 $195,148.78 $774.40 $9,292.80
$19,825.24 $202,954.73 $650.50 $7,805.95
$20,501.78 $211,072.92 $876.52 $8,118.19
-----------------
$16,697.09
-----------------
$21,205.33 $219,515.83 $703.58 $8,442.92
$21,937.05 $228,296.47 $731.72 $8,780.63
$22,698.04 $237,428.32 $780.99 $9,131.86
$23,489.47 $246,925.46 $791.43 $9,497.13
$24,412.55 $256,802.48 $823.08 $9,877.02
-----------------
$22,728.49
-----------------
$19,302.39
-----------------
XXXXX 00 ADJUSTMENTS
(A) COLA BASE IS LOWER THAN THE BASE RENTAL BY $34,948.16 ($3.005 x 11630 SQ FT)
(B) THREE MONTHS FREE RENT OF $37,488.22 IS BASED ON ANNUAL NET RENT AFTER 1/3
OF THE DISCOUNT($203,525-$53,572.12/ 12 X3)
NOMINAL REVENUE LESS
SUITE 74 UNADJUSTED & 3 MO'S FREE AVERAGE COST
BASE REVENUE @ SEP 96 TO NOV 96 PER SQ FT
RENTAL YEAR $8.89 NO INCR. 33 MO'S
*PER SQ. FT $8.89 13.50 SOFT ANNUAL $12,000.00 SEP96-AUG97 $12,000.00 3M0 RENT FREE $9,000.00 $6.67
GROSS MONTHLY 51,000.00 SEP97-AUG98 $12,000.00 0% INCREASE $12,000.00 $8.89
SEP98-AUG99 $12,000.00 0% INCREASE $12,000.00 $8.89
SEP99-AUGOO $27,615.55 XXXXX 00 RATE $27,615.55 $20.46
SEPOO-AUGO1 $28,557.91 XXXXX 00 RATE $28,557.91 $21.15
------------- ---------------------------
TOTAL RENTAL INCOME FIRST 5 YRS $92,173.45 $89.173.45 $13.21
------------- ---------------------------
SEPO1-AUGO2 $29,537.95 XXXXX 00 RATE $29,537.95 $21.88
SEPO2-AUGO3 $30,557.20 XXXXX 00 RATE $30,557.20 $22.63
SEPO3-AUGO4 $31,617.22 XXXXX 00 RATE $31,617.22 $23.42
SEPO4-AUGOS $32,719.84 XXXXX 00 RATE $32,719.64 $24.24
SEPOS-AUGO6 $33,886.15 XXXXX 00 RATE $33,866.15 $25.09
------------- ---------------------------
TOTAL RENTAL INCOME SECOND 5 YRS $158,298.16 $158,298.16 $23.45
------------- ---------------------------
TOTAL RENTAL FIRST 10 YEARS $250,471.61 $247.471.61 $18.33
------------- ---------------------------
ANNUAL
MONTHLY COLA MONTHLY COLA
RENT BASE (A) COLA INCREASE INCREASE
$1,000.00 (A) N/A N/A N/A
$1,000.00 (B) N/A N/A N/A
$1,000.00 (B) N/A N/A N/A
$2,301.30 (C) N/A N/A N/A
$2,379.83 N/A N/A N/A
-----------------
$1,292.37
-----------------
$2,461.50 X/X X/X X/X
x0,000.00 X/X X/X X/X
$2,634.77 N/A N/A N/A
$2,726.64 X/X X/X X/X
x0,000.00 X/X X/X X/X
-----------------
$2,638.30
-----------------
$1,918.38
-----------------
SUITE 74 ADJUSTMENTS
(A) FREE RENT SEP OCT & NOV 1996
(B) RENT REMAINS @ $1,000 PER MONTH FROM DEC 96 THROUGH AUGUST 1999
(C) RENT PER SQ FT AT SEPT 1, 1999 AND THEREAFTER REVERTS TO RATE PER SQ FT FOR
SUITE 44
COMBINED SUITES RENT FOR COMBINED SUITE 44 & 74
NOMINAL REVENUE LESS
UNADJUSTED DISCOUNT ADJ AND AVERAGE COST
REVENUE FREE RENT ADJ. PER SQ FT
YEAR FOR XXXX XXXXXX
XXXXX 00 XX XX 00000 SEP95-AUG96 $203,525.00 $112,464.66 $9.67
XXXXX 00 XX XX 0000 XXX00-XXX00 $223,953.84 $167,381.72 $12.90
COMBINED ----- SEP97-AUG98 $232,804.13 $179,232.01 $13.81
12980 SEP9B-AUG99 $242,096.92 $242,096.92 $18.65
===== SEP99-AUG00 $265,518.43 $265,518.43 $20.46
SEPOO-AUGO1 $274,578.97 $274,578.97 $21.15
------------- ---------------------------
$1,442,477.29 $1,241,272.71 $15.94
------------- ---------------------------
SEPO1-AUGO2 $284,001.93 $284,001.93 $21.88
SEPO2-AUGO3 $293,801 82 $293,801.82 $22.63
SEPO3-AUGO4 $303,993.69 $303,993.69 $23.42
SEPO4-AUGO5 $314,593.24 $314,593.24 $24.24
SEPO5-AUGO6 $325,616.78 $325,616.78 $25.09
------------- ---------------------------
$1,522,007.46 $1,522,007.46 $23.45
------------- ---------------------------
$2,964,484.76 $2,763,280.18 $19.35
------------- ---------------------------
ANNUAL
MONTHLY COLA MONTHLY COLA
RENT(D) BASE (A) COLA INCREASE INCREASE
$12,496.07 $168,576.85
$14,198.48 (D) $177,005.69 $702.40 $8,428.84
$14,936.00 $185,855.98 $737.52 $8,850.28
$20,174.74 $195,148.78 $774.40 $9,292.80
$22,126.54 S202,954.73 $650.50 $7,805.95
$22,881.58 $211,072.92 $876.52 $8,118.19
-----------------
$17,802.24
-----------------
$23,666.83 $219,515.83 $703.58 $8,442.92
$24,483.48 $228,296.47 $731.72 $8,780.63
$25,332.81 $237,428.32 $760.99 $9,131.86
$26,216.10 $246,925.46 $791.43 $9,497.13
$27,134.73 $256,802.48 $823.08 $9,877.02
-----------------
$25,366.79
-----------------
$20,933.94
-----------------
(D) SEP 96 THROUGH NOV 96 RENT IS $13196.48, DEC 96 THROUGH AUG 97 RENT IS
$14,198.48
LEASE AMENDMENT
Reference is made to a Lease between Gyrodyne Company of America, Inc.
(Landlord) and Xxxxx and Xxxx Xxxxx (Tenant), for Premises located at 0
Xxxxxxxxxxx, Xxxxx 00, dated March 23, 1995 (the "Lease").
================================================================================
The parties hereto, agree that the Lease is hereby amended as follows:
A. The contingency for any approval or pre-approval of Tenant's license, on
page three (3), Tenant's Lease Contingency, of the Lease, to operate a day
care center, is hereby considered satisfied and is waived accordingly.
B. The Lease is otherwise in full force and effect.
C. Conflict: Should any conflict in terms and conditions arise between this
Amendment and the Lease, the terms contained in this Amendment shall
supersede over the conflicting terms in the Lease.
IN WITNESS WHEREOF, the parties have caused these presents to be executed
under seal the day and year first above written.
WITNESS:
TENANT:
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxx
-------------------------------- -----------------------------------
Xxxxx Xxxxx
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxx Xxxxx
-------------------------------- -----------------------------------
Xxxx Xxxxx
GUARANTOR:
Maryland Day Care Centers, Inc.
/s/ Xxxxx [ILLEGIBLE] BY: /s/ Xxxxxx Xxxxxx
-------------------------------- --------------------------------
Xxxxxx Xxxxxx, Its President
XXXXX XXXXX AND XXXX XXXXX Lease Page 1 of 43
GYRODYNE COMPANY OF AMERICA, INC.
ADDENDUM
TABLE OF CONTENTS
Landlord Lease Contingency
Tenant Lease Contingency
Section I - Utilities and Service
1. Custodial Services
2. Parking
3. Electricity
4. Light Fixtures
5. Air Conditioning Maintenance
6. Heat
7. Garbage
8. Septic System
9. Water
10. Fire Protection Equipment
11. Hazardous Materials
12. Dust Collection Equipment
13. Compliance with Americans with Disabilities Act
14. Alarm System
15. Keys
Section II - Repairs, Access, Forced Entry, and Right of Recovery
1. Structural Repairs
2. Maintenance of Equipment and Fixtures
3. Access for Ingress and Egress
4. Repairs and Emergency Access
5. Privacy and Forced Entry
6. Eminent Domain
7. Maintenance by Landlord during Tenancy and Tenant's Right
of Recovery
8. Access Prior to Term
Section III - Alterations
1. Consent by Landlord and Permits
(a) Contractor's Insurance
(b) Electrical System
(c) Carpeting
(d) Exterior Architecture
(e) Signs
(f) Trade Fixtures
(g) Removal and Reversion
Section IV - Use Restrictions
1. Zoning
Variance or Special Exception
2. Sublet
3. Non-Nuisance
4. Paint Spraying
5. Activity Restrictions
Section V - Financial Obligations of Tenant -
XXXXX XXXXX AND XXXX XXXXX Lease Page 1 of 43
XXXXX XXXXX AND XXXX XXXXX Lease Page 2 of 43
Escalators, Penalties, and Remedies
1. Rent Security
2. (a) Fire Insurance
(b) Liability Insurance
3. Broker
4. Lease Term and Adjustments
Renewal Options
Rent Abatements
(a) Real Estate Taxes
(b) Heat/Fuel Oil Cost
(c) Insurance
(d) Garbage/Trash Removal Cost
(e) Security Guards
(f) Cost of Living Adjustment
5. Accounting Methods
6. Late Payment Penalties
7. Additional Rent
8. Cessation of Utilities
9. Notices and Service of Process
10.Default by Tenant
11. Allocation of Partial Payments and Disputes
12. Rent Acceleration
13. Language
Interpretation and Construction
14. Headings
15. Attorney's Fees
16. Address Designation
17. Early Termination
18. Lease Amendments & Subordination
19. Estoppel Certificate
20. Legal Venue
21. Exclusivity
22. Counterparts
Section VI - Vacation and Abandonment
1. Holdover
2. Guarantees
3. (a) Abandoned Property
(b) Unauthorized Vehicles
(c) Unplated Vehicles
(d) Waste
4. Entire Agreement
XXXXX XXXXX AND XXXX XXXXX Lease Page 2 of 43
XXXXX XXXXX AND XXXX XXXXX Lease Page 3 of 43
ADDENDUM TO LEASE
Between
GYRODYNE COMPANY OF AMERICA, INC.
(Landlord)
and
XXXXX XXXXX AND XXXX XXXXX
(Tenant)
LANDLORD'S LEASE CONTINGENCY
The obligations of Landlord under this Lease are conditioned upon
issuance, on or before April 1, 1995 of a written commitment from any
institutional lender pursuant to which such institutional lender agrees to make
a loan to Landlord, at Landlord's sole cost and expense, of five hundred
thousand dollars ($500,000.00) or such lesser sum as Landlord shall be willing
to accept, at the prevailing rate of interest, not to exceed the prime interest
rate plus two percent for a term not to exceed ten years and on other customary
commitment terms. Landlord shall make prompt application to an institutional
lender for such loan, pay all fees, points and charges required in connection
with such application and loan; pursue such application with due diligence;
cooperate in good faith, with such institutional lender to obtain such
commitment; and promptly give notice to Tenant after receipt of such written
commitment. If Landlord does not obtain such written commitment by May 15, 1995,
or as otherwise agreed to by the parties hereto Landlord may cancel this Lease
by giving notice to Tenant within five (5) days of May 15, 1995, in which case
the Lease shall be deemed cancelled and thereafter neither party shall have any
further rights against or obligations or liabilities to the other by reason of
this Lease, except that the partial payment of the Security Deposit shall be
promptly returned to Tenant.
TENANT'S LEASE CONTINGENCY
This Lease Agreement is expressly contingent upon Tenant's ability to obtain, or
be assured that it can obtain, the necessary Pre-approval(s) and/or License(s)
to operate a child care facility for at least 175 children of ages six (6) weeks
to twelve (12) years within five (5) days of May 15, 1995. Said Pre-approvals or
License(s) shall be subject only to completion of construction of Tenant's
improvements. In the event Tenant is unable to obtain the necessary
Pre-approval(s) and/or License(s), this Lease shall automatically terminate and
all monies exchanged from Tenant to Landlord shall be returned to Tenant within
fourteen (14) days of termination of this Lease Agreement, with neither party
having any further liability hereunder.
SECTION I - UTILITIES AND SERVICE
1. CUSTODIAL SERVICES - Tenant will, at its expense, provide custodial
services to the Leased Premises. Tenant shall not permit window cleaning
or other exterior maintenance and/or janitorial services in and for the
premises to be performed, except by such person(s) as
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shall be approved by Landlord and except during reasonable hours
designated for such purposes by Landlord.
2. PARKING - Through the Lease Term, Landlord shall provide, at no cost to
Tenant, a minimum of twenty-five (25) spaces in the parking area proximate
to the Leased Premises for the exclusive use of Tenant. In addition,
Landlord shall provide a minimum of two parking (2) spaces at the entrance
to the Building or Leased Premises for the exclusive use of parents who
are dropping off or picking up children. The foregoing parking areas shall
be conspicuously marked with appropriate signage by Landlord to indicate
their reserved use as described above. Maintenance of parking areas and
roads leading to the demised premises shall be the sole responsibility of
the Landlord.
3. ELECTRICITY - The electric power for the demised premises will be provided
via the Landlord's "house" meter(s), which exclusively service the demised
premises, and the Tenant shall be billed, by the Landlord, on the basis of
the kilowatt consumption and demand recorded by the meter(s) at the
prevailing Long Island Lighting Company (LILCO) rate in effect at the time
of the meter reading by the Landlord. Tenant will be provided with
Landlord's computation of Tenant's electricity consumption on a monthly
basis.
Landlord agrees to arrange with the Long Island Lighting Company (LILCO)
to conduct a test of Electromagnetic Fields (EMF) in the outdoor area
adjacent to the demised premises and the electric power sub station. In
the event that there is any alteration of equipment at the electric power
sub station of which Landlord is apprised, Landlord will arrange a
subsequest EMF test with LILCO. Landlord makes no representations and
assumes no liability as to the veracity of any EMF tests conducted by
LILCO.
4. LIGHT FIXTURES - The Landlord warrants that the overhead lighting fixtures
including fluorescent tubes shall be in good working condition at the time
Tenant commences initial occupancy of the Leased Premises and for one
month thereafter. Subsequently, the Tenant shall be responsible, at its
expense, for the replacement of tubes and/or ballasts. Tenant shall, at
the end of tenancy, return to the Landlord all lighting fixtures with
lamps and ballasts in good operating condition. In the event Tenant
vacates the premises and repairs/replacements are required, Landlord shall
xxxx tenant for any and all work performed on the lighting fixtures to
restore them to their original condition less normal wear and tear.
5. AIR CONDITIONING MAINTENANCE - There are four (4) ten (10) ton roof air
conditioning systems that serve the demised premises. The Tenant shall
have the option to utilize these systems provided Landlord is notified by
Tenant, not later than March 1st of each year, that said systems will be
used. For the first five (5) years of this Lease, the Landlord shall, at
no cost to Tenant, on a best efforts basis, maintain, service, repair, and
replace parts as needed to keep these systems in good operating condition.
In the event Tenant abuses or is negligent in the proper operation of the
air conditioning system, then any and all expenses related to the repair
of the air conditioning system(s) as a result of
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the abuse or negligent use shall be payable by Tenant to Landlord as
additional rent. On the sixth anniversary of the Commencement Date of this
Lease, Tenant shall have the option of either (a) paying to Landlord a
base charge of six thousand dollars ($6,000.00) per annum for air
conditioning maintenance adjusted annually by the same factor utilized in
Addendum Section V Paragraph 4. Subparagraph (f) Cost of Living
Adjustments or; (b) electing to retain an independent contractor to
maintain the air conditioning system. Tenant shall notify Landlord of its
intention at least thirty (30) days prior to the sixth anniversary date of
the Lease. Tenant shall also submit to Landlord the name of the air
conditioning maintenance contractor for Landlord's approval, which
approval will not be unreasonably withheld. In addition, if Tenant elects
to retain an independent contractor, Tenant will return the air
conditioning system in its condition on the Commencement Date less normal
wear and tear.
6. HEAT - Landlord, at its expense, shall provide heat in accordance with
Government guidelines, during normal working hours: 6:30AM to 7:00PM
Mondays through Fridays, except holidays, (Memorial Day, Independence Day,
Labor Day, Thanksgiving, Christmas and New Year's Day).
7. GARBAGE - Tenant will handle and dispose of all rubbish, debris, garbage,
and waste from Tenant's operation in accordance with regulations
established by Landlord and those of all governmental agencies having
jurisdiction, and not permit the accumulation (unless in concealed metal
containers), or burning, of any rubbish or garbage in, on, or about any
part of Flowerfield, and not permit any garbage or rubbish to be collected
or disposed of from the premises, except by Landlord or its designee. All
Tenant's garbage must be put in plastic bags, securely tied at the top,
and placed in "GCA" dumpsters located at the extreme south end of Parking
Lot No. 7. Cardboard must be separated from garbage and placed in the
special containers designated for cardboard only. All cardboard boxes and
shipping packaging must be "flattened" before being inserted into the
designated receptacles. Landlord reserves the right to require Tenant, at
Tenant's expense, to acquire a dumpster(s) for Tenant's use if Landlord
deems Tenant is regularly generating excessive waste materials.
Additionally, Tenant shall not permit debris, waste materials, or garbage
to collect in front of, around, alongside, or in back of the demised
premises. Tenant shall at all times keep the apron immediately in front of
the demised premises clean and orderly. In the event Landlord deems the
"housekeeping" inadequate, then Landlord shall have the right to clean up
the affected area and charge Tenant for such cleanup.
Tenant, at its own cost and expense shall keep the demised premises free
from vermin, rodents or anything of like, objectionable nature and shall
employ only such vermin exterminating contractors as approved by Landlord.
In the event of Tenant's failure to keep the demised premises free from
vermin, Landlord has the right, at Tenant's expense, and after prior
notice to Tenant, to take all necessary or proper measures to eradicate
any and all vermin from the demised premises.
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Industrial waste, such as metal chips, oils, solvents, chemicals, sheet
metal, wood crates, pallets, etc. may not be placed in the dumpster. The
Tenant, at its expense, must dispose of all industrial waste in
conformance with New York State environmental Conservation Law. Landlord
shall have the right to demand and receive copies of bills of conveyance
to a government certified and/or government registered carting company for
environmentally sensitive and/or hazardous waste materials which were at
any time at Flowerfield as a result of Tenant's operations.
8. SEPTIC SYSTEM - It is mutually agreed and understood that a typical septic
system for one of Landlord's buildings includes a soil line from the
bathrooms to the septic tank, and an interconnect pipe(s) from the septic
tank to either a distribution box or directly to one or more cesspools. It
is agreed that the demised premises includes a set of bathrooms, currently
in good working order, which are for the exclusive use of the Tenant and
that any and all expenses relating to repairs for stopped-up toilets,
backed-up sinks, and/or clogged drains and soil lines shall be borne
solely by Tenant unless such repairs are attributable to the
malfunctioning of the septic system due to structural constraints such as
an age related reduction in usable capacity. Structural repairs to the
soil line, interconnect pipe(s) distribution box, septic tank, or cesspool
shall be the sole responsibility of the Landlord provided that such
repairs were not caused by the misuse of the facilities by Tenant.
It is understood that all materials removed from commercial building
cesspools by carters are tested for toxic chemicals by Suffolk County
Department of Health. Tenant shall be required, on demand, to provide
Landlord, within a reasonable period of time, a list of chemicals, if any,
by quantity and composition, used or stored in Tenant's operation which
are listed under Section 313 of the Superfund Amendments and
Preauthorization Act (XXXX).
9. WATER - In the event that a municipal water authority water meter(s)
specific for Building #7 is provided during the lease term, it is agreed
that Tenant shall henceforth pay any and all charges for its water usage.
If the water meter is not Tenant specific, a water charge computation will
be predicated either on a ratio of rented square footage to total building
square footage or on a ratio of rented square footage to water feed
service area. Further, Tenant shall pay, calculated on 164,413 square feet
base, its prorata share for fire hydrant charges assessed by the water
authority.
10. FIRE PROTECTION EQUIPMENT - The Tenant shall be required to supply its own
fire extinguishers of the appropriate size and classification consistent
with the Smithtown Fire Code, ISO and the Fire Insurance Underwriter
Inspection regulations. Furthermore, the Tenant agrees to have said
extinguishers periodically inspected, recharged and/or serviced as
required, and tagged showing compliance to the aforesaid codes and
regulations. Landlord will notify Tenant of the number and type of fire
extinguishers required upon approval of the floor plan for the day care
center.
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In the event Tenant is requested to provide any of the local Fire
Departments which have jurisdiction with a list of hazardous chemicals,
Tenant shall provide same in an expeditious manner with a copy being given
to the Landlord.
The Landlord reserves the right to inspect the demised premises to assure
Tenant compliance with this requirement and to insist upon strict
adherence to the necessary procedures.
11. HAZARDOUS MATERIALS - Tenant shall not bring, keep or use in or upon the
demised premises of the building of which they form a part, any solvent
having a flash point below 110F, nor shall any liquid which emits
volatile vapors below the temperature of 100 F be brought, kept or used in
or upon the demised premises of the building except: If the process using
such liquids shall be conducted in a room of fire resistant construction,
as defined by the Fire Insurance Rating Organization. (FIRO) If more than
one but not more than two gallons of such liquids are kept on the
premises, they must be stored in safety cans and kept in a cabinet
constructed by Tenant in a manner approved by the FIRO. Reasonable amounts
in excess of ten gallons may be kept if they are stored in a vault
constructed by Tenant in a manner approved by FIRO. Any use or storage of
such liquids shall at all times be in accordance with the requirements of
the FIRO, OSHA, NFPA, and the Fire Department Board of fire Underwriters.
12. DUST COLLECTION EQUIPMENT - In the event Tenant's operation generates
airborne particles, such as sawdust, the Tenant shall be required to
install and maintain a dust collection system acceptable to the Landlord
in order to contain the dispersion of the generated dust. Tenant shall
also be responsible for any cleanup maintenance required of the area
immediately adjacent to the demised premises, which shall include
hallways, foyers, and outside areas. Tenant shall be responsible, on a
monthly basis , to clean and maintain any external doors which have been
subjected to the accumulation of dust.
Airborne particles such as vapor, generated by spraying glue, etc., will
require the installation of proper ventilation, exhaust equipment, and
explosion proof fixtures as required by Building Code Regulations. ALL
EXHAUST SYSTEMS TO THE ATMOSPHERE REQUIRE THE APPROPRIATE FILTERS FOR THE
SPECIFIC TYPE OF MATERIALS/VAPOR BEING VENTED.
13. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT - Tenant hereby represents
that it is familiar with the Americans with Disabilities Act. Landlord
hereby warrants that, on the commencement date of this Lease, the demised
premises will be in compliance with the Americans with Disabilities Act
and all other applicable laws and ordinances. Tenant further represents
that, after occupancy, it will not require Landlord to bear the cost of
any interior alterations to the demised premises which Tenant may require
in order to comply with future changes in the Americans with Disabilities
Act or any similar law enacted by any federal, state or local governmental
agency, whether or not such laws are retroactive to the commecement date
of the Lease or some other date prior to the commencement date of the
Lease.
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14. ALARM SYSTEM - The following provision is only applicable to alarm systems
other than the fire alarm and sprinkler systems.
In the event Tenant desires to have installed a leased or rented third
party owned alarm system, then it is mutually agreed and understood that
Tenant agrees to a minimum of $100.00 exit charge at the end of tenancy.
Landlord has established this minimum charge predicated on past experience
of damage done to doors, window, walls, painted surfaces, and the required
availability of Landlord's personnel when the third party vendor has to
remove said system.
In the event Tenant causes to be installed a Tenant or Landlord owned
alarm system, applicable exit charges, if any, would be assessed
predicated on any damage found at the end of tenancy.
15. KEYS - Landlord shall provide Tenant keys to the demised premises. Upon
receipt thereof, it will be the Tenant's responsibility to safeguard these
items. The loss of a key(s) will entail a charge to cover its replacement.
If such loss results in the necessity of replacing the lock, then a charge
will be levied against the Tenant for such replacement cost. The charge
for a lost key is Ten ($10.00) dollars; a door lock is Forty ($40.00)
dollars.
Key Number _____ Number of Keys _____
Number of Xxxxx Pond Road South Gate Keys: 2
SECTION II - REPAIRS, ACCESS, FORCED ENTRY, AND RIGHT OF RECOVERY
1. STRUCTURAL REPAIRS - Notwithstanding terms and condition contained in the
second Covenant of the preprinted portion of the Lease, the Landlord will
be responsible for structural repairs to the roof, walls, foundation and
exterior of the demised premises excluding the exterior doors and windows.
Landlord will maintain the exterior of the building in which the demised
premises are located which repairs were not necessitated or otherwise
caused by any act of Tenant, its servants, agents and/or employees,
invitees, subtenants and/or licensees.
2. MAINTENANCE OF EQUIPMENT AND FIXTURES - It is mutually agreed and
understood that with respect to all equipment and fixtures as exists in
the demised premises, the Tenant is responsible for maintaining same in
safe working condition. Said equipment and fixtures are deemed to include,
but not be limited to, light fixtures, fire alarms, personnel and overhead
doors, and fire extinguishers. Tenant agrees to hold harmless, defend, and
indemnify Landlord from any and all claims arising from direct, indirect,
or consequential injury or damage to any party, either personal or
property, which injury or damage may
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have been a result of Tenant's failure to adequately maintain said
equipment and/or fixtures.
3. ACCESS FOR INGRESS AND EGRESS - The sidewalks, xxxxxx, areas, entry,
vestibules, passages, corridors, halls, elevators and stairways of the
demised premises and common areas shall not be encumbered or obstructed by
Tenant, its agents, clerks, servants or customers or be used by them for
any other purpose than for ingress and egress to and from the demised
premises. The demised premises may not be cluttered by boxes, garbage or
other material. If Landlord directs that any of the foregoing items be
removed from the demised premises, Tenant shall promptly comply with such
direction.
4. REPAIRS AND EMERGENCY ACCESS - Tenant shall permit Landlord and/or its
designee to erect, use, maintain and repair pipes, cables, conduits,
plumbing, vents and wires, in, to and through the premises, as and to the
extent that Landlord may now or hereinafter deem to be necessary or
appropriate for the proper operation and maintenance of the building in
which the premises are located or any other portion of Flowerfield. All
such work shall be done, so far as practicable, in such manner as to avoid
interference with Tenant's use of the premises. Notwithstanding anything
else contained herein to the contrary, in the event of an emergency,
Landlord may enter the premises of the Tenant immediately and Tenant shall
cooperate with the Landlord in providing said immediate access.
5. PRIVACY AND FORCED ENTRY - It is agreed and understood that if Tenant
changes or adds additional locks to any entrance or egress from the
demised premises, then Tenant shall provide Landlord with a key or a
combination to be utilized for access purposes. All locks changed must be
returned to the Landlord for reinstallation, at Tenant's expense, at the
end of tenancy. In the event a situation arises which in the opinion of
the Landlord or Public Safety Officials (Police, Fire Dept., Code
Enforcement, etc.) necessitates entrance to the premises during a period
when Tenant is not available to provide access, and Tenant has not
provided said key or combination, then any expenses resulting from damage
to the premises required by a forced entry shall be borne solely by
Tenant. The addition of locks and/or security devices shall be deemed to
be an alteration as defined under Section III of this Addendum, and
therefore, subject to all the provisions governing alterations and
reversion.
6. EMINENT DOMAIN - For the purposes of clarification, the following shall
apply to Covenant Fifth of the preprinted portion of the lease. The
definition of apportionment of rent shall be based on the reduction in
permitted occupancy determined by the competent civil authority, currently
the New York State Department of Social Services, which shall be based on
the same formula (mix of students) used to calculate occupancy before the
taking of a part of the premises. In the event more than fifty percent of
the premises are taken, then Tenant shall have the option to terminate
this lease as of the day of taking with Tenant's residual obligations the
same as if the lease had run its full term.
Further, Covenant Fourth, FIRE CLAUSE, of the preprinted portion of the
lease, notwithstanding to the contrary, in the event more than fifty
percent of the premises are
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taken, then Tenant shall have the option to terminate this lease as of the
day of casualty with Tenant's residual obligations the same as if the
lease had run its full term.
7. MAINTENANCE BY LANDLORD DURING TENANCY AND TENANT'S RIGHT OF RECOVERY -
Paragraph thirteen of the preprinted portion of the Lease is hereby
amended to add the following: "Tenant's only recourse against Landlord in
the event of loss or damage to the property and/or business of the Tenant
resulting from fire or other casualty or cessation and/or interruption of
Tenant's business due to repairs and/or interruption of Tenant's business
due to repairs and/or interruption of Tenant's business due to repairs
and/or compliance with mandated items required on the part of the Landlord
shall be based on a formula which will require Tenant to pay a percentage
of the rent. The percentage deducted from the base rent will be determined
with the numerator being the number of children Tenant is not able to
service in the demised premises and the denominator being the number of
children Tenant is permitted to service in the demised premises as
determined by the Department of Social Services. The resulting percentage
will be multiplied by the base rent subject to C.O.L. adjustments and will
be deducted from the base rent for the number of days during which Tenant
was unable to utilize that portion of the demised premises. In the event
that the damage is caused by an act of God which would otherwise have
prevented children from attending Tenant's facility, Tenant will not be
permitted to deduct partial rent. Tenant hereby agrees to provide access
to premises for Landlord to comply with its obligations as aforesaid, the
time and duration of said access to be at the sole discretion of the
Landlord who will proceed in as reasonable a manner as possible under the
circumstances. It is hereby agreed that the Landlord's determination shall
be conclusive and binding on all parties hereto."
8. ACCESS PRIOR TO TERM - At anytime during the four (4) week period prior to
the Commencement Date, Tenant and its agents, servants, employees and
contractors may enter the Leased Premises for purposes of installing
Tenant's furnishing, fixtures, telephones and other equipment. Such entry
shall constitute the agreement of Tenant that none of such parties nor
their work, equipment, or materials will interfere with the work of
Landlord in the Leased Premises. Tenant's failure to install necessary
furnishing, fixtures, telephones and other equipment within such four week
period will not cause a delay in the commecement of the lease term.
ACCESS AT END OF TENANCY - It is mutually agreed and understood that in
order for Landlord to relet the premises to a new tenant on the first day
of the month immediately following the vacation date stipulation in
Section VI paragraph #1 of this addendum, Landlord shall require and be
granted by Tenant, during normal working hours, unhindered access to the
demised premises during the last week of tenancy for the express purpose
of making repairs, which repairs shall include, but not be restricted to:
dry wall patching, spackling, painting, floor cleaning, equipment
servicing, pipe repairs, and HVAC maintenance.
SECTION III - ALTERATIONS
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1. CONSENT BY LANDLORD AND PERMITS - The following provision does not apply
to improvements performed by Landlord or any contractor retained by
Landlord. It is hereby covenanted and agreed that Tenant shall not make
alterations to any building(s) and/or property Tenant has rented or has
been given access to by Landlord without the express written consent of
the Landlord. In the event Tenant is authorized to make alterations, then
Tenant shall be responsible for all permits and inspections as may be
required by state and local building codes. If as a cause of Tenant's
alterations and the governing ordinances shall require, Tenant shall
secure as necessary, either a current Certificate of Occupancy or a
Certificate of Conformance for the demised premises.
(a) CONTRACTOR'S INSURANCE - Prior to commencement of any work by or
for Tenant by other than the Landlord working as General Contractor,
Tenant shall furnish Landlord certificates evidencing the existence
of the following insurance:
(1) Worker's Compensation Insurance covering all persons employed
for such work and with respect to whom death or bodily injury
claims could be asserted against Landlord, Tenant or the
demised premises.
(2) General liability insurance naming Landlord its designees, and
Tenant as insureds, with limits of not less than $1,000,000 in
the event of bodily injury to one person and not less than
$2,000,000 in the event of bodily injury to any number of
persons in any one occurrence, and with limits of not less
than $100,000 for property damage. Tenant, at its sole cost
and expense, shall cause all such insurance to be maintained
at all times when the work to be performed for or by Tenant is
in progress. All such insurance shall be in a company
authorized to do business in New York, and all policies, or
certificates therefore, issued by the insurer and bearing
notations evidencing the payment of premiums, shall be
delivered to Landlord.
Tenant agrees to compensate Landlord for the reasonable cost
of reviewing construction and design plans and Tenant shall
pay for all reasonable costs incurred resulting from such
review and inspections as Landlord may require.
(b) ELECTRICAL SYSTEM - The Tenant shall not, under any circumstances,
make changes to the existing electrical service servicing the
premises, the internal wiring leading from the distribution
box/boxes to overhead lights, wall outlets, xxxx ducts, etc.,
without the prior written authorization of Landlord. It is agreed
that all electrical work shall be done by a licensed electrician and
said work, at Landlord's sole discretion, may require Tenant to
obtain New York Board of Fire Underwriter approval.
(c) CARPETING - If the Tenant elects to install carpeting to cover any
floor section(s) of the premises, a water soluble glue must be used
to prevent damage to the floor in the event said carpeting is
subsequently removed. Any such damage shall be
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considered the fault of the Tenant who will be responsible for any
and all incurred expenses to restore the floor to its original
condition. In the event Tenant occupies the demised premises with a
carpet already "in-place" which the Tenant finds acceptable, then,
if required at the end of tenancy, disposal of the in-place carpet
shall be deemed to be Tenant's responsibility as set forth above for
new installations.
(d) EXTERIOR ARCHITECTURE - Tenant shall not change (whether by
alteration, replacement, rebuilding or otherwise) the exterior color
and/or architectural treatment of the premises or of the building in
which the demised premises are located, or any part thereof.
(e) SIGNS - Notwithstanding terms and conditions contained in the third
Covenant of the preprinted portion of the Lease, Tenant shall be
permitted to affix to the building an identification sign provided
the design, color, and composition (includes neon type signs) are
approved by the Landlord in writing. Landlord shall provide Tenant
with the appropriate dimensions for the sign predicated on the
building exterior geometry and the size of the demised premises. In
no event shall the sign be larger than twenty five (25) square feet
of total area. Tenant must submit a sketch or photo of the proposed
sign for approval. Placement of the sign will be at the reasonable
discretion of Landlord. No other signs are permitted in, about, or
on the Flowerfield Park grounds unless specifically approved in
writing by the Landlord. Landlord reserves the right to remove any
nonconforming sign(s) and Tenant agrees to indemnify Landlord
against any claims for any damages arising either directly,
indirectly, or consequentially from any acts of Landlord in regards
to the removal of said nonconforming sign(s). Tenant waives any and
all claims against Landlord for the removal of any nonconforming
signs.
In addition, upon Landlord's commencement of tenant improvements in
the Leased Premises, Tenant will be permitted to erect on the
exterior of the building a "Coming Soon" sign, advertising Tenant's
business. Tenant is permitted by Landlord, subject to approval by
the Town of Smithtown, to erect a temporary and permanent
illuminated roadway sign on Landlord's property adjacent to
Landlord's Xxxxx Pond Road entrance. In the event that the Town of
Smithtown approves the erection of an illuminated sign, Landlord
will provide wiring to permit illumination of the sign.
Tenant shall be entitled to a name-location plate on the main
directory sign at no cost to the Tenant. The plate shall be
consistent with other plates on the sign in both overall size,
color, and layout. In the event Landlord does not provide said
plate, Tenant agrees that its only remedy shall be solely the cash
value of the plate itself. Landlord's acceptance of any name for
listing on the Flowerfield Park Directory will not be deemed, nor
will it substitute for, Landlord's consent, as required by this
Lease, if such covenants be applicable, to any sublease, assignment,
or other occupancy of the demised premises.
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Erection of certain signs may be subject to the approval of the Town
of Smithtown Building Department and any other municipal agency with
jurisdiction over signs. Tenant will obtain any sign permits
required by the Town of Smithtown prior to the erection of any sign.
Landlord hereby prohibits the erection of any signs not conforming
with town ordinances.
(f) TRADE FIXTURES - It is mutually agreed and understood that Tenant
has caused to be installed; assumed in place either by purchase,
lease, rental, default, or other manner; or otherwise has the
exclusive use of the herein defined trade fixtures listed below but
not restricted to the following:
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It is agreed that it shall be Tenant's sole financial responsibility
to remove Tenant's trade fixtures as have been defined herein.
Tenant shall be solely responsible for reverting the demised
premises to its condition on the commencement date after vacation at
the end of tenancy unless Landlord has directed, in writing, that
certain improvements associated with the installation of the trade
fixtures are considered attached to the freehold and, therefore,
property of the Landlord.
(g) REMOVAL AND REVERSION - It is further agreed that Tenant shall not
remove or cause to be removed any fixtures, wiring, electrical
panels, plumbing, fans, equipment, water pipes, or any other
installation that was "in place" in or about the demised premises at
the onset of tenancy without the express written consent of the
Landlord. Any and all improvements, changes, and/or additions to the
demised premises shall be removed at Tenant's expense or left in
place at the sole discretion of the Landlord. In no event may Tenant
remove any electrical equipment that was in place in the demised
premises prior to Tenant's tenancy.
It is further agreed that if the herein defined lease shall be a
successor to or in lieu of another lease between Landlord and Tenant
for these demised premises and said prior lease would run
continuously or concurrently if not terminated, it is understood
that Landlord does not waive nor is Landlord diminished with respect
to any claims for removal or reversion which may have been perfected
by any prior lease, as stipulated herein, by virtue of this lease.
At the end of the Tenancy, the demised premises and all improvements
comprising a part thereof will be delivered to Landlord in broom
clean condition, ordinary wear and tear excepted, vacant and
together with all keys to the demised premises.
SECTION IV - USE RESTRICTIONS
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1. ZONING - It is mutually agreed and understood that in the event Landlord
does not secure a Special Exception for use as a Day Care Center and/or
Tenant's use of the premises is held to be in violation of the Town or
Local law or ordinances, the lease shall be considered and will be
terminated by mutual consent and there shall be no further obligation on
the part of either Landlord or Tenant.
VARIANCE OR SPECIAL EXCEPTION - Landlord and Tenant acknowledge that a
special exception is required by the zoning ordinances for the specific
occupancy by Tenant. Any and all costs, such as filing and legal fees,
related to the filing and/or securing of a variance or special exception
shall be borne solely by the Landlord. Landlord, at its sole discretion,
may elect not to permit tenancy if restrictive covenants are attached to
the variance or special exception such that observance of the restrictive
covenants would, in Landlord's opinion, negatively impact Landlord or
other tenants at Flowerfield. Tenant agrees to reimburse Landlord for the
application fee of six hundred dollars ($600.00) paid to the Town of
Smithtown Zoning Board of Appeals in the event that the application for
special exception is denied.
2. SUBLET - The Tenant shall not have the right to sublease any part of the
demised premises. The above notwithstanding to the contrary, Landlord
hereby grants its consent to Tenant entering into the Collateral
Assignment of Lease which is attached to this Lease as Exhibit D and
incorporated by reference herein and further agrees that in the event of a
sale or transfer of the Kiddie Academy Child Care Learning Center to a new
owner approved in writing by Franchisor (as hereinafter defined), this
Lease shall be assigned to such new owner. In addition, Landlord
specifically consents to Tenant assigning this Lease to a corporation
wholly owned by Tenant. In the event of such assignment, Tenants agree to
personally co-guarantee the Lease.
3. NON - NUISANCE - The Tenant agrees to conduct its work operations within
the demised premises in such manner as to be considered nuisance-free to
other Tenants, Landlord's neighbors, and the Landlord, and to perform good
"housekeeping" practices in order to satisfactorily conform to the Town of
Smithtown, County of Suffolk, and State of New York applicable laws and
ordinances. As the demised premises will be subject to periodic,
unannounced inspection by the Building, Environmental, and Fire Inspectors
having the authority to cite any found violations which might have a
detrimental effect on Tenant, the Landlord, or other tenants' business
operation, Landlord's neighbors or fire insurance premium rates, the
Landlord reserves the right to conduct its own inspections and request the
Tenant to take any required corrective action. In the event the Tenant,
upon receipt of a violation notice from Town, County, or State Officials;
Fire Insurance Underwriter inspectors; or the Landlord, fails to correct
the condition, then the Tenant shall be considered to have violated the
terms and conditions of this lease thus causing its termination as a
contractual agreement between the Tenant and Landlord. Any fees or
penalties assessed by any municipal authority shall be paid for
exclusively by Tenant.
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4. PAINT SPRAYING - Tenant and Landlord mutually agree that Tenant will not
perform any paint spraying in the demises premises unless the Tenant has a
paint spray booth that meets Federal, State and Local safety and fire
requirements and the express written consent of the Landlord. Further it
is agreed that Tenant shall handle all flammable materials in a manner
consistent with Local and State fire regulations, and will utilize the
appropriate safety cans designed for specific flammable materials and a
properly vented safety storage cabinet for the storage of flammable
materials.
5. ACTIVITY RESTRICTIONS - The Tenant further agrees that he will not engage
in any of the following activities without the prior knowledge and written
consent of the Landlord:
(a) No Fire Sale: Conduct or permit any fire, bankruptcy, auction, or
"going out of business" sale (whether real or fictitious) in the
premises, or utilize any unethical method of business operation.
(b) Not Use Building Apron: Use, or permit to be used, the sidewalk
adjacent to, or any other space outside, the premises for display,
sale or any other similar undertaking.
(c) Not Misuse Plumbing Facilities: Use the plumbing facilities for
disposal of any materials destructive to the physical plumbing or
facilities, whether through the utilization of so-called "disposal"
or similar units or otherwise. The plumbing facilities shall include
all interior drains and exterior dry xxxxx, collection basins,
sumps, and road drains. Not dispose of any materials that are
environmentally unacceptable to the local, state or federal
governments. In the event the Tenant misuses any plumbing facility,
the Landlord shall have the right to immediately have the affected
facility properly cleaned and restored and charge the Tenant any and
all associated costs.
(d) No Liens: Subject any fixtures, furnishings or equipment in or on
the premises and affixed to the reality, to any mortgages, liens,
conditional sales agreements or encumbrances.
(e) Not Damage the Premises: Perform any act or carry on any practice
which may damage, mar or deface the premises or any other part of
Flowerfield. Damage shall also be construed as resin, epoxy
materials, lacquer, paints, glues, or any other material which may
become affixed to Landlord's walls, floors, ceiling, and fixtures as
a result of actions of Tenant and require special treatment for
removal. Tenant shall be required, at its expense, to restore the
demised premises to its original condition less normal wear and
tear.
(f) Freight Handling Equipment: Use any forklift truck, tow, or any
other machine for handling freight in the premises, unless the same
equipment, if powered, be powered by electricity or propane.
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(g) Not Exceed Floor Loads: Place a load on any floor in the interior
delivery system, if any, or in the premises exceeding two thousand
pounds per square inch (2,000 p.s.i.). Tenant is further prohibited
from installing, operating or maintaining any heavy item of
equipment in the demised premises, except in such manner as to
achieve a proper distribution of the weight.
(h) Not Exceed Electrical Load: Install, operate, or maintain in the
premises any electrical equipment which will overload the electrical
system therein, or any part thereof, beyond its reasonable capacity
for proper and safe operation as determined by Landlord in light of
the overall system and requirements thereof in Flowerfield, or which
does not bear Underwriter's approval.
(i) Not Tamper with LILCO or Landlord's "House" Electric Meters: Tenant
is expressly prohibited from tampering with electric meters in any
manner whatsoever which would alter the meter's measurement of
electric use. Tenant will hold Landlord harmless from all civil
claims, fines, and expenses and any criminal action resulting from
tampering with electric meters.
(j) Not contaminate the Premises: Refrain from the dumping of waste oil
or other contaminants, as defined by environmental and/or
governmental agencies, onto, about, or into the ground. The disposal
of all such materials must, by mutual agreement, conform to the
applicable environmental regulations. The Landlord shall not be
responsible for the Tenant's violation of the regulations and any
financial penalties resulting from such acts shall be borne solely
by the Tenant.
In the event Tenant shall be directed by a governmental agency or by
Landlord to cease and desist from any activity which results or may
result in contamination of Landlord's real property and Tenant
should fail to immediately comply, Landlord shall immediately, under
this provision, become Tenant's Attorney in Fact to exercise any and
all rights and to execute any and all documents necessary to secure
compliance. Tenant hereby approves of any reasonable action taken by
Landlord pursuant to said Power of Attorney and waives any and all
claims in relation thereto.
SECTION V - FINANCIAL OBLIGATIONS OF TENANT-
ESCALATORS, PENALTIES, AND REMEDIES
1. RENT SECURITY - At the time this lease is signed by both parties, the
Tenant shall pay to the Landlord the sum of $50,000.00 "security"
guaranteeing Tenant conformance to the terms and conditions of this Lease.
Security payments shall be scheduled as follows: $25,000.00 upon signing
of this lease and the balance $25,000.00 prior to commencement of
construction of the required improvements to the premises. Landlord
further agrees that if there is no default or outstanding balance(s) due
on December 31, 1996 and Tenant has faithfully observed the terms of the
lease, that Landlord shall apply
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$15,000.00 of the security deposit to the January 1997 rent payable by
Tenant. The remaining balance of $35,000.00 shall remain as rent security
for the lease term.
The first month's rent of twelve thousand four hundred ninety six dollars
and seven cents ($12,496.07) is due and payable at the end of the
abatement period (i.e. tentatively set for December 1, 1995).
Said security payment of $50,000.00 shall be deposited, by Landlord, in an
interest bearing account and henceforth, for the duration of the lease
term, the Tenant shall receive, from the Landlord, a return on said
deposit at a rate not less than the current Chemical bank and/or its
successor(s) passbook rate less .25% nor more than 8.0% per annum. Actual
return to be determined by the current market rates as defined herein.
Said payments to be made annually to the Tenant.
The following schedule shall apply for the calculation of monthly interest
rates which rate is based on the current annualized average monthly yield
on money market accounts at Chemical Bank:
Money Market Average Tenant Monthly Interest Landlord
Monthly Yield Annualized Rate Accrued - Annualized Yield
--------------------------------------------------------------------------------
Curr Money Market rate but not
less than passbook to 5.50% actual yield -.25% .25%
From 5.501% to 6.7499% 5.25% 0.25% to 1.499%
From 6.75% to 9.5% 5.25%+curr yield-6.75% 1.5%
From 9.501 and up 8.00% curr yield-8.0%
It is mutually agreed that the security money deposited with Landlord is
considered as a guarantee that Tenant shall conform to all the covenants,
addenda, terms and conditions of this Lease. The security deposit or any
part thereof may be applied by Landlord, with notice to Tenant, to cure
any default of Tenant under this Lease and upon notice by Landlord of such
application, Tenant shall replenish the security deposit in full by
promptly paying to Landlord the amount so applied within ten days from
receipt of said notice. It is further understood and agreed that the
amount set forth in any notice as being the amount required by Landlord to
maintain the security deposit at the proper amount shall be deemed
additional rent and failure to pay same shall be a default in the payment
of additional rent resulting in Landlord having the option to exercise all
of its remedies pursuant to this agreement.
Under no circumstances shall the security deposit be considered as an
advance payment of the rent for the ending month(s) of this Lease. Said
deposit will be retained by the Landlord until after Tenant has vacated
the premises at which time Landlord shall inspect the premises to
determine if any damage has been caused by Tenant. If none exists, then
the deposit will be returned to Tenant, within thirty (30) days after the
expiration of the lease term, otherwise the deposit will be considered
applicable to any necessary repairs to be made by Landlord.
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PENALTY FOR NONPAYMENT OF LAST MONTH'S RENT - Tenant agrees that in the
event that Tenant fails to pay the last month's rent due under this Lease,
that Tenant will agree to pay a penalty equivalent to an additional
month's rent plus the cost of any and all reasonable attorney's fees paid
by Landlord in connection with any eviction proceedings commenced due to
Tenant's failure to pay the last month's rent or holdover. For purposes of
this Lease, reasonable attorney's fees will be deemed to be two hundred
dollars ($200.00) per hour.
2. (a) FIRE INSURANCE - Notwithstanding Covenant Twenty-third of the
preprinted portion of this Lease, it is understood and agreed that
in the event the fire insurance premium on the demised building,
where Tenant is renting a portion thereof, is raised by virtue of
the business conducted by the Tenant in the premises, the Tenant
will pay the Landlord the amount of said increase.
(b) LIABILITY INSURANCE - Public Liability and Other Insurance: Tenant
covenants to provide on or before the commencement of the demised
term and to keep in force during the demised term a comprehensive
liability policy of insurance, including property damage, insuring
Tenant and Gyrodyne Company of America, Inc. as Landlord as an
additional named insured under the policy against any liability for
injury to persons and/or property and death of any person(s)
occurring in on or about the premises, or any appurtenances thereto.
Such policy or policies to be written by one or more responsible
insurance companies authorized to do business by and in the State of
New York and satisfactory to Landlord. The limits of liability
thereunder shall not be less than the amount of One Million
($1,000,000) dollars in respect to any one person injured or killed,
not less than the amount of Two Million ($2,000,000) dollars in
respect to any one accident, and not less than the amount of Fifty
Thousand ($50,000) dollars in respect to property damages.
All such insurance may be carried under the blanket policy covering
the premises and any other Tenant's properties. Tenant agrees to
deliver to Landlord, at least fifteen (15) days prior to the time
such insurance is first required to be carried by Tenant, and
thereafter at least fifteen (15) days prior to the expiration of any
such policy, either a duplicate or a certificate and true copy of
all policies procured by Tenant in compliance with its obligations
hereunder, together with evidence of payment thereof and including
an endorsement which states that such insurance may not be canceled,
except upon ten (10) days written notice to Landlord and only
designee(s) of Landlord, and complete waiver of all rights of
subrogation against the Landlord, its servants, agents and/or
employees.
3. BROKER - Tenant warrants and represents that no broker unless otherwise
set forth in this agreement and if one is set forth herein no other broker
is involved in the negotiation of this Lease, nor in any of the
transactions connected therewith and agrees to indemnify and save harmless
the Landlord from any claim for brokerage commissions due to acts of the
Tenant.
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4. LEASE TERM AND ADJUSTMENTS - In no event will the lease term extend beyond
the end of the term of the franchise agreement between Kiddie Academy
International, Inc. and Xxxxx and Xxxx Xxxxx. The term period of this
eleven year lease shall begin on or about September 1, 1995 ("Commencement
Date") and will end eleven (11) years from the commencement date. The
Commencement Date will be the same day Landlord has completed all the
scheduled work in Exhibit C of this Lease.
In the event Landlord obtains a Certificate of Occupancy, Certificate of
Zoning Compliance, Temporary Certificate of Occupancy or such other
document allowing Tenant to apply for a license to operate a day care
facility on or before August 30, 1995, Landlord will be deemed to have
performed all necessary prerequisites to Tenant obtaining a license to
operate a day care facility from the State of New York. If Landlord has
performed its obligations as noted in this paragraph and Tenant is unable
to obtain a license to operate a day care facility on or before September
1, 1995, the Commencement Date will be deemed to be September 1, 1995.
RENEWAL OPTIONS - Landlord herewith provides Tenant an option to twice
extend the eleven year term of this lease for an additional five year
period in accordance with the escalation provisions herein stipulated;
items (a) through (f). In order to exercise its option, Tenant must notify
Landlord, in writing, of Tenant's intent to exercise its five year renewal
option at least one hundred and eighty (180) days prior to the expiration
of each lease term. In the event proper and timely notification as herein
specified is not executed by Tenant, Landlord shall no longer be bound by
the terms and conditions of the option offer. Time and method of
notification is deemed of the essence.
RENT ABATEMENTS - It is mutually agreed that No Base Rent, or other fees
due in Section V, 4 sub-paragraphs (a) through (e), exclusive of the cost
of electricity, shall be due for the first three months of the Lease term.
The entire Base Rent otherwise due and payable for the Abatement Month(s)
shall become immediately due and payable upon the occurrence of an uncured
event of default by Tenant under this Lease, as defined below in Addendum
Section V, Paragraph #10, subparagraph DEFAULT.
In consideration for the foregoing rent abatements, Tenant agrees to
enroll three students, on an "as needed basis," chosen at Landlord's sole
discretion, free of tuition charge at all times during the term September
1, 1995, as may be adjusted, through August 31, 2001. These three students
must have a parent or parents employed specifically by Gyrodyne Company of
America, Inc. or its subsidiaries. Each student shall be charged for any
and all assessments normally made to other students for supplies, meals,
and other such miscellaneous expenses. The above notwithstanding to the
contrary, if Tenant's initial student enrollment is sixty (60) or more
students on September 1, 1995, Gyrodyne's students will be enrolled
tuition free except for assessments as specified above. If Tenant has not
reached an enrollment of at least sixty (60) students by September 1,
1995, Gyrodyne employees will pay tuition equivalent to sixty percent
(60%) of regular tuition
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for a period not to exceed six months or when Tenant enrollment reaches
sixty (60) students, whichever occurs sooner.
Further, Tenant agrees during its tenancy to set aside fifteen percent
(15%) of its total capacity, on an "as available basis," for other tenants
at Flowerfield with a discount of at least five percent (5%) from
published rates applicable to the general public.
The annualized rent for twelve months of this lease term period shall be
one hundred forty nine thousand nine hundred fifty two dollars and eighty
four cents ($149,952.84) payable in monthly installments of twelve
thousand four hundred ninety six dollars and seven cents ($12,496.07)
each. Said rent being subject to adjustments as follows:
(a) REAL ESTATE TAXES- $12,328.00 ($1.06 x 11,630 sq. ft.) of the base
annual rent is allocated to the Landlord's real estate tax on the
"Flowerfield" property which includes Building #7 and the demised
premises therein. It is agreed that if at any time the Town of
Smithtown, N.Y. or the Town of Brookhaven, N.Y. levies a tax
increase, whether in the form of a rate increase or assessment
change on the property, regardless of the basis for change, which
increase shall be effective during any portion of the lease term,
then there will be an adjustment in the annual rent which will be
computed on the basis of the percentage of tax change multiplied by
the $12,328.00. The resultant, converted to a monthly charge if in
excess of $.02/sqft, shall be added to the monthly rental rate in
effect at that time; otherwise, a single billing will be made during
either January or February, annually, as applicable.
(b) HEAT/FUEL OIL COST - The base annual rent includes the Landlord's
cost for supplying heat to the demised premises. Said cost factor
being set at the "peg" price of oil at $.85 per gallon (including
NYS Sales Tax, NYS Use Tax, propane gas, associated electric costs,
service and boiler insurance). Thus, if at any time after the
commencement of this lease and the end of the lease term period, the
cost per gallon of oil increases above the "peg" price, the rent
will be adjusted at the rate of $.01 per year per square foot of
space (11,630 sq.ft.) for each $.01 per gallon increase. This annual
rent adjustment will be converted to a monthly charge and added to
the rent in effect at that time.
(c) INSURANCE - The base annual rent includes the Landlord's cost for
building, general liability, and related insurance. $5,350.00 ($.46
x 11,630 sq.ft.) of the base annual rent is allocated to the
Landlord's insurance requirements. The cost per square foot of $.46
is predicated on a 164,413 sq.ft. rental base and a premium base of
$75,900.68 for the current period. In the event in any lease year,
the premium for Landlord's insurance requirements covering the
leased premises increases over the premium amount in effect on the
date of execution of this agreement, within ten (10) days from
receipt of notification, the Tenant shall pay its proportionate
share of said increase to the Landlord. Said obligation shall be
deemed additional rent, and Tenant's proportionate share of said
increase shall be computed on the basis of the percentage increase
in insurance costs multiplied by the $5,350.00. Notification by
Landlord
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shall be deemed conclusive if sent in writing, setting forth the
computations resulting in a statement as to Tenant's proportionate
liability. Notwithstanding anything else contained herein to the
contrary, this obligation of the Tenant shall remain in full force
and effect even if the Landlord elects to self-insure provided the
Landlord presents a statement in writing showing what the premium
amount would be and the increase if the Landlord had elected not to
self-insure.
(d) GARBAGE/TRASH REMOVAL COST - $4,664.00 ($.401 x 11,630 sq.ft.) of
the base annual rent is allocated to garbage/trash and cardboard
removal for the demised premises. The current adjusted (for
cardboard) per yard per pickup rate is $6.13 per month and is
established as the "peg" price for the term of this lease. Thus, if
at any time after the commencement of this lease and before the end
of the lease term period, the cartage rates charged the Landlord
increase, there will be an adjustment in the annual rent which will
be computed on the basis of the percentage of change from the "xxx
xxxxx" multiplied by $4,664.00. The resultant, converted to a
monthly charge, shall be added to the monthly rental rate in effect
at that time.
(e) SECURITY GUARDS - $2,721.00 ($.234 x 11,630 sq.ft.) of the base
annual rent is allocated to security guard services for the demised
premises. Landlord has determined that security services during the
1995 calendar year, January 1st through December 31st, shall be
assessed at the rate of $19.50 per month per 1,000 square feet of
rented space based on a budgeted cost of $32,060.00 apportioned over
164,413 sq.ft. rental base. This provision shall not be construed to
limit Landlord's ability to continue to provide security guard
services to Tenant. Landlord may, in its sole discretion, extend or
curtail security guard services in any manner deemed necessary by
Landlord. Landlord may adjust Tenant's annual rent to reflect such
changes in security guard services.
(f) COST OF LIVING ADJUSTMENT - Commencing on the first lease (1st)
anniversary and continuing through the third (3rd) anniversary,
there will be a rent adjustment based on an annual flat five percent
(5%) increase in the base rent, base rent as defined below.
Thereafter, on each of the fourth and fifth anniversaries, there
will be a flat annual four percent (4%) increase on the base rent.
Upon the sixth (6th) anniversary, Landlord shall compare the
cumulative "Cost of Living (C.O.L.)" index percent change between
the to-be-published July 1995 and July 2001 Consumer Price Index
(CPI) and the cumulative (twenty three percent- 23%) flat increases
assessed above. In the event that the cumulative CPI has escalated
in excess of the cumulative flat rate increases, there will be a
step adjustment whereby the base rent shall be increased to reflect
the CPI/C.O.L. rate. Thereafter, the adjusted amount shall serve as
the base rent and base rent basis for computations for the
succeeding five year period. Landlord agrees to cap the cumulative
CPI to a maximum of forty percent (40%) increase for each evaluation
period. For years six through ten and the two option periods, a
continuation of the flat (4%) percent annual increase shall be
applicable. At the end of the initial lease term, another comparison
shall be made between the cumulative CPI and the cumulative flat
rate increases, less any prior step adjustments.
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A single step adjustment, if required, will be made applicable to
the first option period. The method of calculating the base rent in
the option period will be predicated on the comparison of the
cumulative effect of the five, four percent (4%) increases over the
last five year period of the initial lease term and the cumulative
CPI/COL increase for the same period. Likewise, another Landlord
review will be conducted before the commencement of the second
option period calculated using the same formula applicable to the
first five year option period. The adjusted amount shall be base
rent and base rent basis for the second option period.
In this regard, for calculation purposes only, $168,577.00 shall be
the C.O.L. base subject to the first annual rent adjustment without
regard to abatements or concessions, if any. The amount of said rent
adjustment added to the C.O.L. base rent will establish the new
C.O.L. base rent subject to the following year's "Cost of Living"
adjustment. The same formula will be used to determine subsequent
"C.O.L." adjustments. Exhibit E, C.O.L. Adjustment Schedule is
appended hereto which clarifies the intent of the parties.
"Price Index" shall mean the Consumer Price Index for All Urban
Consumers, published by the Bureau of Labor Statistics (BLS), U.S.
Department of Labor, New York, NY and Northeastern N.J.. region,
1982-84 = 100, or any other renamed local index covering the New
York, NY region.
If the BLS changes the publication frequency of the Price Index so
that a Price Index is not available to make a cost-of-living
adjustment of annual rent as specified herein, 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 as defined in
this Lease.
In the event that the Consumer Price Index (CPI) ceases to use
1982-84=100 as the basis calculation, or if in the Landlord's
reasonable judgment, a substantial change is made in the terms or
number of items contained in the CPI, then the CPI shall be adjusted
(the "Adjustment") to the figure that would have been arrived at (or
as close to such figure as shall be practical) had the manner of
computing the CPI in effect at the date of this lease not been
altered. Further, if in the Landlord's reasonable judgment, such
adjustment is impossible or impractical, then the revised CPI shall
be deemed to replace the original CPI for purposes of this covenant.
If the BLS otherwise substantially revises, or ceases publication
of, the Price Index, then a substitute index for determining
cost-of-living adjustments, issued by the BLS or by a reliable
governmental or other nonpartisan publication, shall be reasonably
designated by Landlord.
5. ACCOUNTING METHODS - It is understood and agreed that upon presentation to
the Tenant of any computation with respect to rent, and/or additional
rent, or utilities, or computations as to the amount of money to be paid
by the Tenant concerning any
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obligation referred to in this lease to be performed by the Tenant,
provided said computations are predicated upon reasonable accounting
methods and procedures, then and in that event, computations of the
Landlord shall be deemed conclusive and binding upon Tenant and the Tenant
hereby waives the presentation of any and all invoices, checks or bills
prior to making said payment and during any trial concerning the failure
of the Tenant to make said payments. As a courtesy to Tenant, Landlord
will provide Tenant with access to Landlord's records for purposes of
Tenant review to verify Landlord computations. Tenant's review of at
Landlord's offices will not exceed two days per calendar year.
6. LATE PAYMENT PENALTIES - Rent and any other Tenant incurred charges
appearing on the Landlord's monthly invoices are due and payable to the
Landlord on the first day of each month. There will be a four (4) day
grace period through the fifth (5th) day of the month for the payment of
such due bills. However any such unpaid bills after said date will be
assessed at the late charge rate of 2% per month, computed from the first
day of the month in which said xxxx is due, to the date of payment to the
Landlord. This late charge shall be cumulative and be deemed an additive
to the rent for the month such due xxxx is issued.
Tenant's postdated check will be considered subject to the above
assessment if the check date exceeds the above stated payment deadline.
In the event a Tenant check fails bank clearance for any reason, the
Landlord shall charge the Tenant with a $20.00 penalty fee to cover bank
and administrative costs. If the Tenant fails to correct this deficiency
and has not paid the Landlord the monies due by the tenth day of the
month, then the late charge as set forth above shall be applicable.
The Landlord's failure to demand or collect said late charges shall in no
way be deemed a waiver of any right thereto or any other rights or
remedies that the Landlord may have under the terms of this lease, by
summary proceedings or otherwise.
7. ADDITIONAL RENT - Any and all payments and/or expenses required to be paid
by the Tenant shall be deemed additional rent and rent if same are due the
Landlord or in the event the Landlord expends said moneys on behalf of the
Tenant for which the Tenant has an obligation to reimburse the Landlord.
8. CESSATION OF UTILITIES - Tenant hereby agrees that in the event the Tenant
has failed to pay to Landlord any utility charges that are billed to the
Tenant by Landlord and said charges remain unpaid and outstanding for a
period of 60 days, in addition to the other remedies the Landlord may
have, the Landlord shall have the right to terminate the providing of said
utilities to the leased premises of the Tenant. Notwithstanding anything
else contained herein to the contrary, in such event, the Tenant waives
any and all claims against the Landlord for any damages whatsoever,
consequential and/or punitive, that may be incurred by the Tenant as a
result of the termination of said utilities.
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9. NOTICES AND SERVICE OF PROCESS - Any notice, demand, or communication
called for under this Lease shall be in writing and shall be given,
served, or delivered by United States registered or certified mail, return
receipt requested, postage prepaid, or by Airborne Express or other
nationally recognized overnight courier service, or hand-delivered with a
receipt and addressed (i) if to Tenant, at 00 Xxxxxxxxxxx Xxxxx 00, Xxxxx
Xxxxx, Xxx Xxxx 00000, (ii) with a copy to Franchisor, to Kiddie Academy
International, Inc., Kiddie Academy Corporate Center, 000 Xxxxx Xxxx,
Xxxxx 000, Xxx Xxx, Xxxxxxxx 00000, and (iii) a copy to Co-Guarantor,
Maryland Day Care Center, Inc., 000 Xxxxxxx Xxxx, Xxxxx 000, Xxx Xxx,
Xxxxxxxx 00000; and (iv) if to Landlord, at Gyrodyne Company of America,
Inc., 00 Xxxxxxxxxxx Xxxxx 00, Xxxxx Xxxxx, Xxx Xxxx 00000, or (iv) to any
of the personal guarantors of said lease. All notices delivered in the
foregoing manner shall be deemed delivered on the date the return receipt
is executed. Either party may designate a change of address by written
notice to the other party. If and when said service is made, the Tenant
hereby waives any jurisdictional defects and/or claims of improper
service.
10. DEFAULT BY TENANT - The occurrence of any one or more of the following
events shall constitute a material breach by Tenant of this Lease:
(a) the failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due,
where such failure shall continue for a period of ten (10) days
after receipt of written notice thereof by Tenant from Landlord; or
(b) the failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease where such failure shall
continue for a period of thirty (30) days after receipt of written
notice thereof by Tenant from Landlord, provided, however, that if
the nature of Tenant's default is such that it cannot be cured
solely by payment of money and that more than thirty (30) days may
be reasonably required for such cure, then Tenant shall not be
deemed to be in default if Tenant shall commence such cure within
such thirty (30) day period and shall thereafter diligently
prosecute such cure to completion; or
(c) the making of any general arrangement or any assignment by Tenant
for the benefit of creditors; the filing by or against Tenant of a
petition to have Tenant adjudged a bankrupt or a petition of
reorganization or arrangement under any law relating to bankruptcy
(unless, in the case of a petition filed against Tenant, such
petition is dismissed within ninety (90) days); the appointment of a
trustee or receiver to take possession of substantially all of
Tenant's assets; or the attachment, execution or other judicial
seizure of substantially all of Tenant's assets.
In the event of any material breach of this Lease by Tenant, then
Landlord, in addition to other rights or remedies it may have, shall have
the right to terminate this Lease upon fifteen (15) days written notice to
Tenant, and also the right, with or without termination
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of this Lease, to reenter and take possession of the Leased Premises and
Landlord may remove all persons and property from the Leased Premises;
such property may be removed and stored in any other place in the Building
or in any other reasonably secure place for the account of and at the
expense and risk of Tenant. Should Landlord elect to reenter, as herein
provided, or should it take possession pursuant to legal proceedings or
pursuant to any notice provided for by law, Landlord may either terminate
this Lease, or Landlord, without terminating this Lease, shall use its
reasonable efforts to relet the Leased Premises or any part thereof for
such terms and conditions as may be reasonable, with the right to make
minor alterations and repairs to the Leased Premises. Rental received by
Landlord from such reletting shall be applied first, to the payment of any
costs of such reletting including reasonable brokerage and attorneys'
fees; and the residue, if any, shall be held by Landlord and applied in
payment of future rent as the same may become due and payable hereunder.
Should such rentals received from such reletting during any month be less
than the monthly gross rent reserved hereunder, then Tenant shall pay such
deficiency to Landlord. Such deficiency shall be calculated and paid
monthly. No such reentry or taking possession of the Leased Premises by
Landlord shall be construed as an election on its part to terminate this
Lease, unless written notice of such intention be given to Tenant, in
which event Tenant's obligations to Landlord shall forthwith cease, or
unless the termination thereof be decreed by a court of competent
jurisdiction.
Any default by Tenant under this Lease shall be deemed an event of default
under the Franchise Agreement (the "Franchise Agreement") entered into or
to be entered into between Tenant and Kiddie Academy International, Inc.,
a Maryland corporation ("Franchisor").
In addition, Landlord acknowledges that if at any time Tenant defaults
under the Franchise Agreement, Franchisor, shall have the option to
either:
(i) enter upon the Leased Premises and operate the Kiddie Academy
Child Care Learning Center at the Leased Premises until such
time as Franchisor determines that the default of Tenant under
the Franchise Agreement has been cured, or
(ii) take possession of the Leased Premises and become the assignee
of this lease for a period not less than one (1) year and not
to exceed two (2) years from the date of assumption, with no
liability for any default caused by the Tenant up to the point
of assumption. In the event a new franchisee is selected, the
one year minimum period will be waived by Landlord.
In the event Franchisor exercised option (ii) above, Landlord hereby
agrees that the Franchisor may seek another Franchisee to take over the
operation of the Kiddie Academy Center at the Leased Premises and that
when a new franchisee is selected by Franchisor and approved by Landlord
within a reasonable period of time, the new franchisee will become the
tenant under this Lease, Maryland Day Care Centers, Inc. will
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continue as the co-guarantor thereby leaving the Landlord undiminished
with respect to guaranty. Landlord further agrees that if Franchisor does
not select a new franchisee within two (2) years from the date of
assignment of the Lease under (ii) above, Franchisor shall have no further
liability under the Lease as of the end of that two (2) year period.
SUBSTITUTION OF FRANCHISEE - Landlord will not withhold such consent to
the selection of a new franchisee if at the time of such substitution of
franchisee, the succeeding franchisee maintains financial standing at
least equivalent to that of the original franchisee under this Lease.
Landlord must have reasonable assurance of the payment of all rents and
other amounts required under this Lease and reasonable assurance of
compliance with all other terms, covenants, provisions and conditions of
this Lease.
11. ALLOCATION OF PARTIAL PAYMENTS AND DISPUTES - In the event of a partial
payment or a payment on account, hereinafter for the purpose of this
provision these terms are used interchangeably. Tenant shall not have the
right to allocate payment(s) against specific charge(s) on an invoice(s)
submitted by Landlord. Further, Tenant waives the right to claim that
Landlord shall be diminished legally with respect to accepting said
partial payment in any arbitration or legal proceeding. Landlord and
Tenant herewith reaffirm Landlord's undiminished rights, with respect to
partial payment(s) by Tenant, to recovery by Landlord for amounts invoiced
and unremitted by Tenant; recovery of any penalties, as provided elsewhere
herein, that may be assessed Tenant for underpayment; and recovery of the
premises, if such recovery shall be the subsequent result of a default
declaration.
In the event of a dispute between Landlord and Tenant for any invoiced
amounts, other than those pertaining to base rent, Tenant shall be
required to remit payment in full as per the terms of the invoice, and if
no payment terms are stated, within thirty (30) days of invoice, with a
written protest detailing all allegations, financial calculations, and
documentation for those amounts in dispute. In the event the parties are
unable to resolve the dispute within sixty days of the remittance, both
parties agree to submit to binding arbitration with respect to the
disputed amount(s). Failure to remit disputed amounts shall be construed
by Landlord as non-payment and shall remain grounds for a default
declaration by Landlord. Unless a written notice to Landlord of a dispute,
conveyed and qualified under NOTICES AND SERVICE OF PROCESS herein, is
made at the time of remittance, Tenant waives all rights to recourse.
12. RENT ACCELERATION - Anything herein to the contrary notwithstanding, the
premises herein mentioned are demised for the whole term with the whole
amount of rent herein reserved, due and payable at the time of the making
of this lease and the payment of rent in installments as herein provided
is for the convenience of the Tenant only. If default by the Tenant in the
making of any installment payment of rent occurs, then the whole of the
rent reserved for the whole period shall then become due and payable to
the Landlord without notice or demand.
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Landlord herewith unilaterally agrees and covenants that in the event of a
default by Tenant, Landlord partially waives its right guaranteed
hereinabove to demand payment for the full term of the lease and accepts a
minimum of three years, or the balance of the then existing lease term,
whichever is less, as the maximum amount for which Landlord may initiate a
single action to recover for an event of default. Additionally, Landlord
also agrees to restrict any action to recover payment to a peyote schedule
requiring payments in equal installments over the same period for which
the rent default and rent acceleration is claimed. Further, Landlord shall
be restricted from initiating multiple actions for the same monies, or
portion thereof, for a specific underlying lease period even if multiple
defaults occur.
13. LANGUAGE PRECEDENCE - In the event of conflict between the preprinted
portion of this Lease and the Addendum hereto, the terms and conditions
set forth in the Addendum shall control.
INTERPRETATION AND CONSTRUCTION - Unless otherwise specified, the
following rules of construction and interpretation apply to this lease,
addenda, and exhibits:
(a) The terms "improvements," "demised premises," "Leased Premises," or
"Leased Suite" shall each be interpreted as followed by the phrase
"or any part thereof."
(b) Singular words include the plural and plural words include the
singular.
(c) Words importing any gender include every other gender.
(d) The phrase "terms and conditions" shall be interpreted as referring
to all terms, provisions, covenants, agreements, conditions,
restrictions, representations, warranties, obligations and
agreements in this Lease.
(e) Use of the term "including" shall be interpreted to mean "including
but not limited to."
(f) Whenever a party's consent is required under this Lease, except as
otherwise stated in the Lease of as same may be duplicative, such
consent shall not be unreasonably withheld or delayed.
14. HEADINGS - Headings used throughout this Lease are inserted for reference
purposes only, and are not to be considered or taken into account in
construing the terms or provisions of any covenant or paragraph hereof nor
to be deemed in any way to qualify, modify or explain the effect of any
such provisions or terms.
15. ATTORNEY'S FEES - Tenant agrees to pay reasonable attorney's fees if the a
dispute is resolved after service of Notice of Petition and Petition and
receipt of Tenant's response and prior to appearing in court. In the event
any further papers not associated with the above resolution must be
prepared and/or further expenditure of time is required, then, and in that
event, Tenant shall pay additional Landlord's reasonable legal fees.
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16. ADDRESS DESIGNATION - Landlord has the full right at any time, with no
less than thirty (30) days prior notice to Tenant, to name and change the
name of the building and property and to change the designated address of
the building and property. The building and property may be named after
any person, firm or otherwise, whether or not the name is, or resembles,
the name of a tenant of the building and property.
17. EARLY TERMINATION - Landlord herewith agrees, with the following
qualification, to release Tenant from this Lease, if and only if, during
the term of this Lease Tenant and Landlord enter into another lease for a
different premises at Flowerfield. Tenant shall remain liable for all
applicable covenants, such as, but not restricted to: reversion
provisions, exit charges, abandonment, etc., as if this Lease had run its
full course.
18. LEASE AMENDMENTS & SUBORDINATION - If, in the event that the Landlord
desires financing or refinancing for the premise of which the demised
premise form a part, Tenant may not withhold, delay, or defer consent for
any modifications to the lease as a condition for the financing or
refinancing, provided that such modifications shall not substantially or
materially affect Tenant or Tenant's rights under this Lease.
Remedies - The Tenant is permitted fifteen (15) days after written notice
from the Landlord to conform to the conditions which are requested by the
lender. If Tenant fails or refuses to execute conditions requested by
Landlord, Landlord reserves the right to terminate the lease, as provided
hereafter, or perform the execution of any document for and on behalf of
Tenant as its attorney-in-fact. In the event Landlord elects to terminate
this Lease under this paragraph, Landlord will either provide Tenant with
comparable premises within Flowerfield or provide Tenant with six months
of occupancy in the demised premises, free of base rent. Landlord as
attorney-in-fact may only execute instruments pertaining to conditions
requested by lender. If Landlord, in its capacity as attorney-in-fact,
executes a subordination agreement or any other documents required by
lender on behalf of Tenant, Tenant's default under this provision will be
deemed to be cured.
19. ESTOPPEL CERTIFICATE - Landlord and Tenant shall, at anytime upon not less
than twenty (20) days prior written notice from the other party, execute
and deliver to the other party a statement in writing, if such is the
case, (i) certifying that this Lease is unmodified and in full force and
effect (or if full force and effect) and the date to which the rent and
other charges are paid in advance, if any, and (ii) acknowledging that
there are not, to the party's knowledge, any uncured defaults on the part
of the other party hereunder, or specifying such defaults if any are
claimed. Landlord shall limit such requests to an average of two times per
year over the lease term.
20. LEGAL VENUE - This Lease shall be governed by the laws of the State of New
York. Should any provisions of this Lease require judicial interpretation,
it is agreed that the court interpreting or construing the same shall not
apply a presumption that the terms of any such provision shall be more
strictly construed against one party or the other by
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reason of the rule of construction that a document is to be construed most
strictly against the party who itself or through its agent prepared the
same, it being agreed that the agents of all parties hereto have
participated in the preparation of this Lease.
21. EXCLUSIVITY - For a five year term commencing on September 1, 1995,
Landlord shall not lease any space at Flowerfield, to any tenant for use
as a day care or similar all day child development facility. This
restrictive covenant shall not apply to summer day camps, fine arts and
crafts schools, Head Start programs or short term sessions of one month or
less duration. In the event that Landlord elects to entertain another day
care or all day child development facility at Flowerfield, Landlord shall
first offer same to Tenant. If Tenant declines Landlord's offer, Landlord
will make the same offer to Kiddie Academy International, Inc.
22. COUNTERPARTS - This lease may be executed in one of more counterparts,
each of which shall be deemed an original.
SECTION VI - VACATION AND ABANDONMENT
1. HOLDOVER - In the event this lease is not renewed and the Tenant has
failed to vacate the premises prior to the eleventh anniversary of the
Commencement Date of the Lease, or the sixteenth anniversary date of the
Commencement Date of the Lease if the first five year option is exercised
or the twenty first anniversary date of the Commencement Date of the Lease
if the second option is exercised, then the Tenant agrees to pay the
Landlord double the monthly rent then applicable for each month or portion
thereof that Tenant retains possession of the premises or any portion
thereof, after the expiration or termination of this Lease and shall also
pay all damages sustained by Landlord by reason of such retention of
possession.
In addition, Tenant will also pay those other items of additional rent
which would have been payable monthly pursuant to this Lease, had this
Lease not expired. The provisions of this section shall not constitute a
waiver by Landlord of any reentry rights of Landlord pursuant to other
provisions contained herein or as provided by law. At the sole option of
Landlord, expressed by written notice to Tenant, but not otherwise, such
holding over shall constitute a renewal of this Lease for a period of one
year on the terms and conditions herein set forth at triple the then
current monthly rent. In the event the Landlord does not exercise said
option, then as previously set forth, the Tenant shall pay the Landlord
triple the then monthly rent during the holdover period.
2. GUARANTEES - It is mutually agreed and understood that if Tenant after the
conclusion of the hereinbefore defined lease term becomes a month-to-month
tenant, a tenant at will, or a holdover tenant, all personal, business,
and corporate guarantees applicable to the hereinbefore defined lease term
shall unequivocally also apply to the extended lease term.
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3. (a) ABANDONED PROPERTY - It is hereby understood and agreed that in the
event the Tenant leaves any property on the demised premises or any
common areas in, on, or about Flowerfield, subsequent to the
expiration of the within lease that said property is hereby deemed
abandoned and the Landlord may dispose of said property at its
option without any liability on the part of the Landlord. It is
further understood and agreed that the Tenant waives any and all
rights, title and interest to said property, releases and waives any
and all claims thereto and further agrees that the Tenant will be
responsible to the Landlord for any and all expenses incurred by the
Landlord concerning said property.
(b) UNAUTHORIZED VEHICLES - Landlord retains the sole right to reassign
parking and may, with one week's written notice, change the parking
lot and/or parking area assignment of Tenant. Landlord shall not
unilaterally, however, reduce the agreed upon spaces allotted Tenant
above. It is understood and agreed that in the event any vehicles of
any parties, their servants, agents and/or employees, invitees,
licensees, subtenants, etc., are improperly parked on the grounds of
the Landlord, the Landlord is hereby granted express permission to
take any and all necessary steps to remove said vehicles including
but not limited to the towing of said vehicles. For the purpose of
this paragraph "improperly parked" shall mean any vehicle parked in
a loading zone; parked in an area designated with a sign as a no
parking zone; parked in other than a designated parking lot, parked
overnight without the express permission of the Landlord, or parked
overnight in other than a fenced-in reserved parking area. Any and
all expenses relating to the removal of said vehicles and/or the
safeguarding of said vehicles, if the Landlord elects to do so,
shall be the responsibility of either the owner of the vehicles or
the applicable tenant whose business led to said vehicles being on
the grounds of the Landlord and said parties hereby agree to
immediately reimburse the Landlord for said expenses together with
interest at the 2% per month and same shall constitute additional
rent to which the failure to pay shall result in the Landlord
exercising, at its option, any of the remedies provided for herein.
The Tenant specifically waives any claim for damages arising from
the removal of vehicles owned and/or operated by the Tenant, its
servants, agents and/or employees and releases the Landlord from any
such claims. In the event claims are made by third parties as a
result of the removal of said vehicles or any damage caused to said
vehicles, the Tenant hereby agrees to hold harmless, indemnify and
defend the Landlord concerning said claims.
In the event Tenant fails to comply with this provision, Tenant
hereby appoints the Landlord as its Attorney in Fact, authorizing
Landlord to execute all documents and take any action on behalf of
Tenant to secure compliance herewith. Tenant hereby agrees that the
exercising of said Power of Attorney by Landlord is proper and
waives any and all claims concerning same.
(c) UNPLATED VEHICLES - It is agreed that motor vehicles without license
plates constitute a special situation. Any unregistered motor
vehicle parked on the Flowerfield premises will be subject to all
the conditions herein above described and to a ten
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($10.00) dollar per day parking fee effective after the first
twenty-four hours of parking. In the event Tenant fails to comply
with this provision, Tenant hereby appoints the Landlord as its
Attorney in Fact, authorizing Landlord to execute all documents and
take any action on behalf of Tenant to secure compliance herewith.
Tenant hereby agrees that the exercising of said Power of Attorney
by Landlord is proper and waives any and all claims concerning same.
(d) WASTE - Tenant at expiration of Lease shall be solely liable for
removal of any drums, cans, vessels, or containers over one quart in
volume in addition to its other responsibilities. In the event the
drums, cans, vessels, or containers are not removed, until such time
that same are complied with, Tenant agrees not to demand return of
any portion or its securities being held by Landlord. In addition
thereto, the Tenant again appoints the Landlord as its Attorney in
Fact to exercise any and all rights, and to execute any and all
documents necessary to secure compliance with this provision. Tenant
hereby approves of any actions taken by the Landlord pursuant to
said Power of Attorney and waives any and all claims in relation
thereto.
4. ENTIRE AGREEMENT - This Lease with attached preprinted portion, Addenda
and Exhibits is the complete agreement between Tenant and Landlord in its
entirety with respect to the premises leased herein and cannot be changed,
modified or terminated orally. There are no representations, agreements,
arrangements or understandings oral or written, between Tenant and
Landlord up to the date of this Lease, which are not fully contained
herein.
Gyrodyne Company of America, Inc.
3-23-95 /s/ [Illegible]
--------------------- ----------------------------------------
(Date) (Landlord)
Xxxxx Xxxxx
3-23-95 /s/ Xxxxx Xxxxx
--------------------- ----------------------------------------
(Date) (Tenant)
Xxxx Xxxxx
3-23-95 /s/ Xxxx Xxxxx
--------------------- ----------------------------------------
(Date) (Tenant)
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EXHIBIT A
FLOOR PLAN OF THE LEASED PREMISES
0 XXXXXXXXXXX XXXXX 00
SUPPLIED SEPARATELY
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EXHIBIT B
KEY MAP, BUILDING LAYOUT, COMMON AREAS,
PARKING AND PLAYGROUND DRAWING
Gyrodyne Company of America, Inc.
Kiddie Academy Day Care Center
Drawing Pages 1 of 2 and 2 of 2
ATTACHED
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EXHIBIT C
LANDLORD'S WORK LETTER
FOR
KIDDIE ACADEMY FRANCHISEE
January 27, 1995
1. General
A. All construction must met or exceed the requirements of the New York State
Uniform Fire Prevention and Building Code (Code) and all applicable
Federal, State and Local codes, laws and/or regulations.
B. Leased Suite occupancy is assumed to be Group C6.2 - Institutional; used
for the daily care of persons with physical limitations due to health or
age (i.e.: day nurseries including children under two and a half years of
age, hospitals, infirmaries, orphanages and homes for the aged, etc.).
C. Specifications contained herein have not been reviewed by regulatory
authorities. All quantities, finishes, locations and other specific
requirements are to be verified by Tenant, Franchisor and Landlord, with
respect to each party's area of responsibility as defined in Section 1. G
D. If a conflict should exist between these specifications and applicable
Code requirements, the more restrictive of the two shall be utilized in
the construction of the Leased Suite.
E. The landlord is required to provide a minimum of one year warranty on all
labor and materials used in constructing the Leased Suite.
F. All construction is to be substantially completed in accordance with the
Construction Documents. (The term Construction Documents means all Final
Plans, Specifications, Change Orders and Addenda which have been approved
and agreed to, in writing, by the Tenant, Franchisor and Landlord.)
G. Landlord is responsible for the production and submission of the
Construction Plans (which shall be based on the agreed upon specifications
and conceptual layout) for approval by authorities having jurisdiction
over project. Landlord is responsible for all submissions of plans for
demolition and construction permits. Landlord is also responsible for all
costs related to obtaining construction permits, inspections and
Certificate of Occupancy. Tenant is responsible for obtaining all
licensing required to legally operate a Day Care Center in the County of
Suffolk in the State of New York.
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H. All Construction Drawings and Specifications are subject to review and
written approval by Tenant, Franchisor and Landlord.
I. Tenant or Franchisor shall provide Landlord with a final finish schedule
prior to the completion of the Construction Drawings and Specifications.
J. No construction shall commence prior to written approval and agreement of
the final Construction Drawings and Specifications by the Tenant,
Franchisor and Landlord.
K. Landlord shall be the General Contractor for the work to be done under
this Work Letter.
2. Floors
A. Provide and install floor finishes as specified by finish schedule.
1. All tile flooring is to be a minimum of 1/8" thick, unless otherwise
specified in the Construction Documents.
2. All carpeting is to be 'Wellco' Producer IV 2602 Level Loop Polyfn
Carpet or equal. Color to be selected from Room Finish Schedule.
B. All 'learning carpets' are to be supplied by Tenant and shall be installed
by the Landlord. The Landlord shall provide a black rubber carpet
transition strip for the installation.
C. Provide and install vinyl base throughout per finish schedule.
D. Provide and install ceramic tile as required by Code and Construction
Documents. Landlord to submit color samples for selection by KAI.
E. It will be the responsibility of the Landlord or subcontractor to verify
all owner supplied carpet sizes before laying any tile or carpet in the
center. KAI will not guarantee any carpet sizes. All sizes referred to on
plans are nominal.
3. Walls
A. Walls are to be a minimum of 1/2" drywall on each side of a 3 1/2" 25 ga.
metal stud @ 16" o/c.
B. Provide and install exterior wall insulation, sealant and moisture
protection as may be required to conform to the New York State Energy
Conservation Code.
C. Drywall finish is to be taped and spackled, sanded, primed and painted.
D. All walls are to be painted, as per Room Finish Schedule, with a minimum
one primer coat of paint plus two coats of finish color paint for new
walls and two coats of finish
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color paint for existing painted walls. Doors and trim are to be painted
the trim color specified for each room. Paint manufacturer to be Xxxxxxx
Xxxxxxxx or equal.
E. Paint used in kitchen area to be Xxxxxxx-Xxxxxxxx white epoxy enamel
semi-gloss base (or equal), or as required by local health code.
F. Provide and install 3' FRP panels on walls above sinks in kitchen area and
above mop sink in janitorial closet.
4. Doors, Door Jambs, Windows & Hardware
A. Unless specified otherwise on Door Schedule, all exterior doors are to be
at least 16 ga, ASTM A526 steel with G60 galvanizing and painted as per
Schedule.
B. Unless specified otherwise on Door Schedule, all exterior door frames are
to be primed and painted as per Schedule.
C. Unless specified otherwise on Door Schedule, all interior doors are to be
3/0 X 7/0 1 3/4" solid core wood doors, primed and painted per Schedule.
D. Unless specified otherwise on Door Schedule, all interior door frames are
to be 16 ga for doors up to 5' wide, 14 ga over 5' wide, (1 1/2" metal),
with standard hardware, primed and painted per Schedule.
B. All door hardware is to comply with ADA and local code regulations.
Provide locking keyed hardware set on owner's office door. Provide locking
hardware for closet doors so that the lock will release when operated from
inside the closet.
F. All doors are to be rated as needed by local codes.
G. Exterior doors are to have removable 6 pin core locks, medium duty
commercial grade.
H. Storefront doors & entrances with aluminum frames are to be anodized
aluminum type as manufactured by 'Kawneer' or equal.
I. Door glazing to be tempered safety glass where required by code.
J. Overhead closers shall be provided as per Door Schedule.
K. Push/Pull hardware shall be provided as per Door Schedule.
L. Provide and install weather-stripping and thresholds as needed on exterior
doors.
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M. Windows are to be 1" insulating glazing, anodized aluminum frame type, as
manufactured by 'Kawneer', or equal.
5. Ceiling
A. Provide and install suspended grid ceiling system @ +/-10'-0" a.f.f.
throughout.
B. All ceiling tiles are to be 2'x4' acoustical lay-in type. One-hour rated
ceiling as required by Code.
6. Electrical
A. Provide and install separate electrical meter for Suite.
B. Provide and install service for Premises one 208 volt, 3 phase, 4 wire,
disconnect switch. Panel size to be determined by electrical contractor.
C. Provide and install all necessary circuit breakers for distribution of
load
D. Provide all distribution, including j-boxes, switches and receptacles in
place as per Code and Construction Documents
E. Install duplex outlets as per Code
F. Provide and install ceiling or wall mounted exit signs, emergency lights
and night lights, as required by Code.
G. Provide and install a minimum of two duplex outlets in each room.
H. Provide and install required outlets for Tenant's kitchen equipment. Hot
plate units will require (2) 220v 20 amp receptacles @ 54" a.f.f.. Provide
electrical service for food prep area range hood in accordance with state
and local regulations. Install Tenant supplied food preparation equipment.
I. Provide and install exterior power for Tenant's sign.
J. Provide access to central telephone panel for 7 Flowerfield.
K. Permit Tenant to engage reliable T.V. cable and/or antenna contractor to
provide and install Television lines as required by Tenant.
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XXXXX XXXXX AND XXXX XXXXX Lease Page 38 of 43
L. Provide and install 2' x 4' lay-in, fluorescent light fixtures, with
ballasts, lenses and lamps installed, in suspended ceiling, at least fifty
foot candle minimum, conveniently switched per room. Final layout as per
Construction Documents.
M. Electrical service to be in accordance with latest NEC and local
regulations.
N. Provide and install electrical service and timers for tenant sign to
exterior sign areas as per Construction Documents.
0. Provide and install dedicated duplex outlet, on a separate circuit, in
kitchen area for a microwave oven.
7. Plumbing
A. Provide and install all sanitary sewer connections and piping for sewer as
per Construction Documents.
B. Provide and install electric hot water heater sized for Tenant and
occupancy requirements
C. Distribute all hot and cold water to Kitchen, drinking fountains and rest
rooms
D. Provide and install all required juvenile toilets [Kohler Primary Model
II, K-4318-ET, Seat 4686C, or equal] and juvenile lavatories [Kohler
Radiant K-29 16, 4" center, with gooseneck handicapped approved faucet, or
equal]. Quantity determine by local regulation.
E. Provide and install at least 2 Adult, ADA compliant, toilets [Kohler
Welcomme Xxxxxxxxxx X-0000-0XX-XX, or equal] and lavatories [Greenwich
K-2032, 4" centers with gooseneck handicapped approved faucet].
F. Provide and install at least 2 juvenile and 1 adult, ADA compliant,
drinking fountains.
G. Provide any special requirements due to private or public septic system
(grease traps, hookup permits, etc.).
H. Provide and install restroom mirrors, paper towel holders, toilet paper
holders and grab bars.
I. Provide and install 1 mop sink [Kohler Xxxxxx K-6716, or equal].
J. Provide and install mechanical ventilation in each restroom.
K. Provide and install 1 lavatory in each diaper counter unit [Kohler Radiant
K-2916 with 4" center X-0000 Xxxxxx faucet, or equal].
XXXXX XXXXX AND XXXX XXXXX Lease Page 38 of 43
XXXXX XXXXX AND XXXX XXXXX Lease Page 39 of 43
L. Provide antiscald valves as required by Code.
M. Install Tenant supplied food preparation equipment. All labor and
materials, other than adapters, fittings, valves, etc. which are normally
supplied with the equipment by the manufacturer, required for hook up are
to be supplied by the contractor.
N. Plumbing to be installed in as per Code.
0. Supply and install liquid soap dispensers and paper towel dispensers at
all lavatories throughout the Suite.
8. Air Conditioning & Heating
A. Provide, install and distribute air cooling/heating systems throughout the
Suite.
B. Air conditioning units must maintain a maximum summer temperature of 78
degrees F.
C. A temperature of at least 72 degrees F must be maintained during the
winter.
D. Provide and install all duct work, positive duct return air and supply
diffusers. Also install supply diffusers for rest rooms, storage areas and
offices.
E. Design criteria to include glass area exposure, kitchen load, equipment
load, and occupant load.
F. Provide and install at least 1 thermostat per HVAC unit.
G. Compressors to have at least a 5 year extended warranty.
H. HVAC system shall heat and cool uniformly throughout in accordance with
NFPA 90 and be balanced to provide compliance with the latest BOCA
Mechanical Code, and local regulation.
9. Fire Sprinkler & Fire Alarm Systems
A. Provide and install sprinkler system as required by Code.
B. Smoke detection system, if required, must be in compliance with the latest
NFPA Life Safety Code, local regulations and BOCA code.
C. Contractor is to provide central station alarm connection fee only.
XXXXX XXXXX AND XXXX XXXXX Lease Page 39 of 43
XXXXX XXXXX AND XXXX XXXXX Lease Page 40 of 43
D. Provide and install fire alarm, panel, detectors and related equipment as
per Code requirements.
10. Cabinetry
A. Fabricate and install one 12" x 12" x 48" cubbie" as per Construction
Documents for each child.
B. Fabricate and install all lavatory tops, diaper counter units and kitchen
counter unit; color and laminate per Construction Documents.
C. Fabricate and install office pass-through window per Construction
Documents.
11. Signage
A. Supply electrical hookup for Tenant's exterior building sign.
B. Supply electrical feed to Tenant's free standing exterior sign.
12. Play Area
A. Install play area fencing with gates as per Construction Documents.
Provide, minimum, (1) 10'-0" wide service gate and (1) 4' wide service
gate, as shown on plan.
B. Provide asphalt surface as per Construction Documents.
C. Soft-top area to be provided as per Construction Documents.
D. Provide sand needed to fill (2) 8'x8' sand boxes.
13. Security System
A. Provide and install, on all exterior doors only, an audible security
system that will sound upon opening.
14. Schedule of Drawings
Attached Project Schedule and list of construction documents result in a
forty day design and submittal phase. It is Landlord's intent as general
contractor to follow this schedule within the constraints imposed by various
governmental agencies in utilizing reasonable efforts given the circumstances.
XXXXX XXXXX AND XXXX XXXXX Lease Page 40 of 43
XXXXX XXXXX AND XXXX XXXXX Lease Page 42 of 43
EXHIBIT D
COLLATERAL ASSIGNMENT OF LEASE
FOR VALUE RECEIVED, THE UNDERSIGNED Assignor assigns, transfers and sets
over to the Assignee, KIDDIE ACADEMY INTERNATIONAL, INC., a Maryland
corporation, all of the Assignor's right, title and interest as tenant in, to
and under the lease, a copy of which is attached (the "Lease"), for the premises
known as 0 Xxxxxxxxxxx Xxxxx 00, Xx. Xxxxx, Xxx Xxxx 00000.
This Assignment is for collateral purposes only and except as specified
here, the Assignee will have no liability or obligation of any kind whatsoever
arising from or in connection with this Assignment, or from or in connection
with the Lease, unless (i) the Assignee takes possession of the premises subject
to the Lease pursuant to the terms of this Assignment, and (ii) the Assignee
assumes the obligations of the Assignor under the Lease. The Assignor agrees to
indemnify and hold harmless the Assignee from and against all claims and demands
of any type, kind or nature made by any third party which arise out of or are in
any manner connected with the Assignor's use and occupancy of the premises
subject to the Lease.
The Assignor represents and warrants to the Assignee that it has full
power and authority to assign the Lease and its interest in the Lease.
If the Assignor defaults under the Lease or under the Franchise Agreement
between the Assignee and the Assignor for a Kiddie Academy Center located at the
leased premises (the "Franchise Agreement"), the Assignee will have the right
and is empowered to take possession of the premises subject to the Lease, expel
the Assignor from those premises, and in that event, the Assignor will have no
further right, title or interest in the Lease. The Assignor will reimburse the
Assignee for the costs and expenses incurred in connection with any such
retaking, including but not limited to the payment of any back rent and other
payments due under the Lease (whether the payments are made by a separate
agreement with the lessor or otherwise), attorney's fees and expenses of
litigation incurred in enforcing this Collateral Assignment of Lease, costs
incurred in reletting the premises, and costs incurred for putting the premises
in good working order and repair.
The Assignor agrees that it will not suffer or permit any surrender,
termination, amendment or modification of the Lease without the prior written
consent of the Assignee. Throughout the term of the Franchise Agreement and any
renewals of that Agreement, the Assignor agrees that it will elect and exercise
all options to extend the term of or renew the Lease not less than thirty (30)
days prior to the last day that the option must be exercised, unless the
Assignee otherwise agrees in writing. Upon the failure of the Assignor to so
elect to extend or renew the Lease, the Assignor appoints the Assignee as its
true and lawful attorney-in-fact to exercise that extension or renewal option in
the name, place and stead of the Assignor, for the sole purpose of effecting the
extension or renewal.
XXXXX XXXXX AND XXXX XXXXX Lease Page 42 of 43
XXXXX XXXXX AND XXXX XXXXX Lease Page 43 of 43
ASSIGNOR:
____________________
/s/ Xxxx Xxxxx (SEAL)
----------------------------------------
XXXX XXXXX
________________________________________
________________________________________
/s/ Xxxxx Xxxxx
----------------------------------------
XXXXX XXXXX
XXXXX XXXXX AND XXXX XXXXX Lease Page 43 of 43
CORPORATE GUARANTY OF LEASE
Maryland Day Care Centers, Inc., a Maryland corporation ("Guarantor"),
whose address is Kiddie Academy Corporate Center, 000 Xxxxx Xxxx, Xxxxx 000, Xxx
Xxx, Xxxxxxxx 00000, as a material inducement to and in consideration of
Gyrodyne Company of America, Inc. ("Landlord") entering into that Lease dated
March 23, 1995 (the "Lease") with Xxxxx Xxxxx and Xxxx Xxxxx ("Tenant"),
unconditionally guarantees the prompt payment to Landlord of all basic annual
rent being due and payable under the Lease, during the first ten (10) years of
the original lease term. This Guaranty and the obligations of Guarantor
hereunder, shall not be valid until the Lease has commenced, all contingencies
under the Lease have been satisfied or waived, all construction of Tenant
Improvements is complete, and all permits and licenses required for Tenant's
operation have been granted and/or issued.
Landlord shall promptly provide written notice to Guarantor of any default
or failure to perform by Tenant under the Lease and Guarantor shall have the
right to cure any such deficiency or default by Tenant, should Tenant fail to do
so, within thirty (30) days after the expiration of any cure period provided to
Tenant under the Lease (and, in the event that no cure period is provided to
Tenant under the Lease, Guarantor shall have 30 days after the delivery of such
notice to Guarantor to cure such default). It is hereby understood and agreed
that Landlord shall forego the right to exercise any and all remedies available
to Landlord under the Lease or at law arising out of Tenant's default unless
Tenant or Guarantor fails to cure such default within the time period set forth
above. In no event shall any "Liquidated damages" provision or any other
provision of the Lease which purports to accelerate the rent or any other
charges payable by Tenant under the Lease be enforceable against Guarantor.
Notices shall be sent to Guarantor by United States certified mail, return
receipt requested, postage prepaid, or by Airborne Express or other nationally
recognized overnight courier service, to the address of Guarantor set forth
above, Attn: Xxxxxxx X. Xxxxxx. All notices delivered in the foregoing manner
shall be deemed delivered on the date the return receipt is executed. Guarantor
may designate a change of address by written notice to Landlord.
The Lease shall not be modified, amended or assigned without the prior
written consent of Guarantor. Guarantor hereby consents to the Collateral
Assignment of Lease previously entered into, or to be entered into, between
Tenant and Kiddie Academy International, Inc.
If Landlord disposes of its interest in the Lease, "Landlord", as used in
this guaranty, shall mean Landlord's successors. Guarantor's obligations under
this guaranty shall be binding on Guarantor's successors.
GUARANTOR:
WITNESS: Maryland Day Care Centers, Inc.
/s/ Xxxxxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxx
----------------------------- ------------------------------------
Xxxxxx Xxxxxx, President
STATE OF MARYLAND )
)
COUNTY OF HARFORD )
On this 22 day of March 1995, before me, the subscriber, a Notary Public
of the State aforesaid, Xxxxxx Xxxxxx, personally appeared, who acknowledged
himself to be the President of Maryland Day Care Centers, Inc., and that he, as
such officer, being authorized so to do, executed the foregoing Corporate
Guaranty for the purposes therein contained, by signing the name of the
corporation by himself as such officer.
IN WITNESS WHEREOF I have hereunto set my hand and official seal.
Notary Public /s/ Xxxxxxxxx X. Xxxxxx
----------------------------------
XXXXXXXXX X. XXXXXX
NOTARY PUBLIC STATE OF MARYLAND
My Commission Expires: My Commission Expires June [Illegible], 1998
--------------------------------------------
(NOTARIAL SEAL)
FILE:KIDCDM4Y.WK4
AS OF 03/20/95
EXHIBIT E
GYRODYNE COMPANY OF AMERICA, INC.
XXXXX XXXXX AND XXXXX XXXXX
C.O.L ADJUSTMENT SCHEDULE
5% INCREASE FIRST 3 YEARS AND 4% RATE INCREASE THEREAFTER
BASE
RENTAL YEAR REVENUE
*'PER SQ. FT $17.50 11630 SQFT ANNUAL $203,525.00 SEP95-AUG96 $ 203,525.00
GROSS MONTHLY $ 16,960.42 SEP96-AUG97 $ 211,953.84 5% INCREASE
SEP97-AUG98 $ 220,804.13 5% INCREASE
SEP98-AUG99 $ 230,096.33 5% INCREASE
SEP99-AUG00 $ 237,902.88 4% INCREASE
SEP00-AUG01 $ 246,021.07 4% INCREASE
-------------
TOTAL RENTAL INCOME FIRST 6 YRS $1,350,303.84
-------------
SEP01-AUG02 $ 254,463.98 4% INCREASE
SEP02-AUG03 $ 263,244.62 4% INCREASE
SEP03-AUG04 $ 272,376.47 4% INCREASE
SEP04-AUG05 $ 281,873.61 4% INCREASE
SEP05-AUG06 $ 291,750.63 4% INCREASE
-------------
TOTAL RENTAL INCOME SECOND 5 YRS $1,363,709.31
-------------
TOTAL RENTAL FIRST 11 YEARS $2,714,013.15
-------------
AVERAGE COST MONTHLY
BASE PER SQ FT RENT
RENTAL YEAR REVENUE
*'PER SQ. FT $17.50 11630 SQFT ANNUAL $203,525.00 SEP95-AUG96 $ 203,525.00 $17.50 $16,960.42
GROSS MONTHLY $ 16,960.42 SEP96-AUG97 $ 211,953.84 $18.22 $17,662.82
SEP97-AUG98 $ 220,804.13 $18.99 $18,400.34
SEP98-AUG99 $ 230,096.33 $19.78 $19,174.74
SEP99-AUG00 $ 237,902.88 $20.46 $19,825.24
SEP00-AUG01 $ 246,021.07 $21.15 $20,501.76
----------------------------------------
TOTAL RENTAL INCOME FIRST 6 YRS $1,350,303.84 $19.35 $18,754.22
----------------------------------------
SEP01-AUG02 $ 254,463.98 $21.88 $21,205.33
SEP02-AUG03 $ 263,244.62 $22.63 $21,937.05
SEP03-AUG04 $ 272,376.47 $23.42 $22,698.04
SEP04-AUG05 $ 281,873.61 $24.24 $23,489.47
SEP05-AUG06 $ 291,750.63 $25.09 $24,312.55
----------------------------------------
TOTAL RENTAL INCOME SECOND 5 YRS $1,363,709.31 $23.45 $22,728.49
----------------------------------------
TOTAL RENTAL FIRST 11 YEARS $2,714,013.15 $21.21 $20,560.71
----------------------------------------
ANNUAL
COLA MONTHLY COLA
BASE BASE (A) COLA INCREASE INCREASE
RENTAL YEAR
*'PER SQ. FT $17.50 11630 SQFT ANNUAL $203,525.00 SEP95-AUG96 $168,576.85
GROSS MONTHLY $ 16,960.42 SEP96-AUG97 $177,005.69 $702.40 $8,428.84
SEP97-AUG98 $185,855.98 $737.52 $8,850.28
SEP98-AUG99 $195,148.78 $774.40 $9,292.80
SEP99-AUG00 $202,954.73 $650.50 $7,805.95
SEP00-AUG01 $211,072.92 $676.52 $8,118.19
TOTAL RENTAL INCOME FIRST 6 YRS
SEP01-AUG02 $219,515.83 $703.58 $8,442.92
SEP02-AUG03 $228,296.47 $731.72 $8,780.63
SEP03-AUG04 $237,428.32 $760.99 $9,131.86
SEP04-AUG05 $246,925.46 $791.43 $9,497.13
SEP05-AUG06 $256,802.48 $823.08 $9,877.02
TOTAL RENTAL INCOME SECOND 5 YRS
TOTAL RENTAL FIRST 11 YEARS
BASE
RENTAL YEAR REVENUE
*'PER SQ. FT $16.50 11630 SQFT ANNUAL $191,895.00 SEP95-AUG96 $ 191,895.00
GROSS MONTHLY $ 15,991.25 SEP96-AUG97 $ 199,742.34 5% INCREASE
SEP97-AUG98 $ 207,982.05 5% INCREASE
SEP98-AUG99 $ 216,633.75 5% INCREASE
SEP99-AUG00 $ 223,901.17 4% INCREASE
SEP00-AUG01 $ 231,459.29 4% INCREASE
-------------
TOTAL RENTAL INCOME FIRST 6 YRS $1,271,613.60
-------------
SEP01-AUG02 $ 239,319.74 4% INCREASE
SEP02-AUG03 $ 247,494.60 4% INCREASE
SEP03-AUG04 $ 255,996.46 4% INCREASE
SEP04-AUG05 $ 264.838.39 4% INCREASE
SEP05-AUG06 $ 274,034.00 4% INCREASE
-------------
TOTAL RENTAL INCOME SECOND 5 YRS $1,281,683.19
-------------
TOTAL RENTAL FIRST 11 YEARS $2,553,296.80
-------------
REVENUE FOR 11 YEARS @ $17.50 $2,714,013.15
REVENUE FOR 11 YEARS @ $16.50 $2,553,296.80
-------------
AMOUNT OF DISCOUNT $ 160,716.35
=============
AVERAGE COST MONTHLY
BASE PER SQ FT RENT
RENTAL YEAR REVENUE
*'PER SQ. FT $16.50 11630 SQFT ANNUAL $191,895.00 SEP95-AUG96 $ 191,895.00 $16.50 $15,991.25
GROSS MONTHLY $ 15,991.25 SEP96-AUG97 $ 199,742.34 $17.17 $16,645.20
SEP97-AUG98 $ 207,982.05 $17.88 $17,331.84
SEP98-AUG99 $ 216,633.75 $18.63 $18,052.81
SEP99-AUG00 $ 223,901.17 $19.25 $18,658.43
SEP00-AUG01 $ 231,459.29 $19.90 $19,288.27
----------------------------------------
TOTAL RENTAL INCOME FIRST 6 YRS $1,271,613.60 $18.22 $17,661.30
----------------------------------------
SEP01-AUG02 $ 239,319.74 $20.58 $19,943.31
SEP02-AUG03 $ 247,494.60 $21.28 $20,624.55
SEP03-AUG04 $ 255,996.46 $22.01 $21,333.04
SEP04-AUG05 $ 264.838.39 $22.77 $22,069.87
SEP05-AUG06 $ 274,034.00 $23.56 $22,836.17
----------------------------------------
TOTAL RENTAL INCOME SECOND 5 YRS $1,281,683.19 $22.04 $21,361.39
----------------------------------------
TOTAL RENTAL FIRST 11 YEARS $2,553,296.80 $19.96 $19,343.16
----------------------------------------
REVENUE FOR 11 YEARS @ $17.50 $2,714,013.15
REVENUE FOR 11 YEARS @ $16.50 $2,553,296.80
-------------
AMOUNT OF DISCOUNT $160,716.35
=============
ANNUAL
COLA MONTHLY COLA
BASE BASE (A) COLA INCREASE INCREASE
RENTAL YEAR
*'PER SQ. FT $16.50 11630 SQFT ANNUAL $191,895.00 SEP95-AUG96 $156,946.85
GROSS MONTHLY $ 15,991.25 SEP96-AUG97 $164,794.19 $653.95 $7,847.34
SEP97-AUG98 $173,033.90 $686.64 $8,239.71
SEP98-AUG99 $181,685.60 $720.97 $8,651.70
SEP99-AUG00 $188,953.02 $605.62 $7,267.42
SEP00-AUG01 $196,511.14 $629.84 $7,558.12
TOTAL RENTAL INCOME FIRST 6 YRS
SEP01-AUG02 $204,371.59 $655.04 $7,860.45
SEP02-AUG03 $212,546.45 $681.24 $8,174.86
SEP03-AUG04 $221,048.31 $708.49 $8,501.86
SEP04-AUG05 $229,890.24 $736.83 $8,841.93
SEP05-AUG06 $239,085.85 $766.30 $9,195.61
TOTAL RENTAL INCOME SECOND 5 YRS
TOTAL RENTAL FIRST 11 YEARS
REVENUE FOR 11 YEARS @ $17.50
REVENUE FOR 11 YEARS @ $16.50
AMOUNT OF DISCOUNT
LEASE CALCULATED WITH 3 MONTHS FREE RENT AND DISCOUNT OF $160,716.35 APPLIED IN
FIRST THREE YEARS
UNADJUSTED
BASE REVENUE @
RENTAL YEAR $17.50
*'PER SQ. FT $17.50 11630 SQFT ANNUAL $203,525.00 SEP95-AUG96 $ 203,525.00 3MO RENT FREE
GROSS MONTHLY $ 16,960.42 SEP96-AUG97 $ 211,953.84 5% INCREASE
SEP97-AUG98 $ 220,804.13 5% INCREASE
SEP98-AUG99 $ 230,095.93 5% INCREASE
SEP99-AUG00 $ 237,902.88 4% INCREASE
SEP00-AUG01 $ 246,021.07 4% INCREASE
-------------
TOTAL RENTAL INCOME FIRST 6 YRS $1,350,303.84
-------------
SEP01-AUG02 $ 254,463.98 4% INCREASE
SEP02-AUG03 $ 263,244.62 4% INCREASE
SEP03-AUG04 $ 272,376.47 4% INCREASE
SEP04-AUG05 $ 281,873.61 4% INCREASE
SEP05-AUG06 $ 291,750.63 4% INCREASE
-------------
TOTAL RENTAL INCOME SECOND 5 YRS $1,363,709.31
-------------
TOTAL RENTAL FIRST 11 YEARS $2,714,013.15
-------------
REVENUE LESS
$1 PER SQ FT AVERAGE COST MONTHLY
BASE DISCOUNT 3YRS PER SQ FT RENT
RENTAL YEAR & 3 MO'S FREE
*'PER SQ. FT $17.50 11630 SQFT ANNUAL $203,525.00 SEP95-AUG96 $ 112,464.66 $ 9.67 $12,496.07
GROSS MONTHLY $ 16,960.42 SEP96-AUG97 $ 158,381.72 $13.62 $13,198.48
SEP97-AUG98 $ 167,232.01 $14.38 $13,936.00
SEP98-AUG99 $ 230,096.93 $19.78 $19,174.74
SEP99-AUG00 $ 237,902.88 $20.46 $19,825.24
SEP00-AUG01 $ 246,021.07 $21.15 $20,501.76
----------------------------------------
TOTAL RENTAL INCOME FIRST 6 YRS $1,152,099.26 $16.51 $16,697.09
----------------------------------------
SEP01-AUG02 $ 254,463.98 $21.88 $21,205.33
SEP02-AUG03 $ 263,244.62 $22.63 $21,937.05
SEP03-AUG04 $ 272,376.47 $23.42 $22,698.04
SEP04-AUG05 $ 281,873.61 $24.24 $23,489.47
SEP05-AUG06 $ 291,750.63 $25.09 $24,312.55
----------------------------------------
TOTAL RENTAL INCOME SECOND 5 YRS $1,363,709.31 $23.45 $22,728.49
----------------------------------------
TOTAL RENTAL FIRST 11 YEARS $2,515,808.57 $19.67 $19,502.39
----------------------------------------
ANNUAL
COLA MONTHLY COLA
BASE BASE (A) COLA INCREASE INCREASE
RENTAL YEAR
*'PER SQ. FT $17.50 11630 SQFT ANNUAL $203,525.00 SEP95-AUG96 $168,576.85
GROSS MONTHLY $ 16,960.42 SEP96-AUG97 $177,005.69 $702.40 $8,428.84
SEP97-AUG98 $185,855.98 $737.52 $8,850.28
SEP98-AUG99 $195,148.78 $774.40 $9,292.80
SEP99-AUG00 $202,954.73 $650.50 $7,805.95
SEP00-AUG01 $211,072.92 $676.52 $8,118.19
TOTAL RENTAL INCOME FIRST 6 YRS
SEP01-AUG02 $219,515.83 $703.58 $8,442.92
SEP02-AUG03 $228,296.47 $731.72 $8,780.63
SEP03-AUG04 $237,428.32 $760.99 $9,131.86
SEP04-AUG05 $246,925.46 $791.43 $9,497.13
SEP05-AUG06 $256,802.48 $823.08 $9,877.02
TOTAL RENTAL INCOME SECOND 5 YRS
TOTAL RENTAL FIRST 11 YEARS
(A) COLA BASE IS LOWER THAN THE BASE RENTAL BY $34,948.15 ($3.005 x 11630 SQ
FT)
(B) THREE MONTHS FREE RENT OF $37,488.22 IS BASED ON ANNUAL NET RENT AFTER 1/3
OF THE DISCOUNT ($203,525-$53,572.12/ 12 X3)
A 35--Lease, Business, Premises. XXXXXX XXXXXXXX, INC., LAW BLANK
Loft, Office or Store. 2-65 PUBLISHERS
This Lease made the 23RD day of MARCH 1995, between
GYRODYNE COMPANY OF AMERICA, INC.
hereinafter referred to as LANDLORD, and
XXXXX XXXXX AND XXXX XXXXX
hereinafter jointly, severally and collectively referred to as TENANT.
Witnesseth, that the Landlord hereby leases to the Tenant, and the
Tenant hereby hires and takes from the Landlord AN AREA DEEMED TO BE
APPROXIMATELY 11,630 SQUARE FEET OF SPACE in the building known as 7 FLOWERFIELD
-- SUITE 44 to be used and occupied by the Tenant AS A DAY CARE CENTER
OR ABOUT SEPTEMBER 1, 1995 IN ACCORDANCE WITH ADDENDUM SECTION V, 4 and for no
other purpose, for a term to commence on 19 , and to end
THE ELEVENTH ANNIVERSARY OF THE COMMENCEMENT DATE OF THE LEASE
on 19 , unless sooner terminated as hereinafter provided, at the
ANNUAL RENT of ONE HUNDRED FORTY NINE THOUSAND NINE HUNDRED FIFTY TWO DOLLARS
AND EIGHTY FOUR CENTS ($149,952.84) WHICH SHALL BE SUBJECT TO ADJUSTMENT
PURSUANT TO THE COVENANTS HEREIN INCLUDING AND NOT RESTRICTED TO SECTION V,
PARAGRAPHS 4, (a), (b), (c), (d), (e) and (f).
all payable in equal monthly instalments in advance on the first day of each and
every calendar month during said term, monthly installments of twelve thousand
four hundred ninety six dollars and seven cents ($12,496.07) except the first
instalment, which shall be paid upon the execution hereof.
THE TENANT JOINTLY AND SEVERALLY COVENANTS:
FIRST.--That the Tenant will pay the rent as above provided.
REPAIRS
ORDINANCES AND VIOLATIONS
ENTRY
INDEMNIFY LANDLORD
SECOND.--That, throughout said term the Tenant will take good care of the
demised premises, fixtures and appurtenances, and all alterations, additions and
Improvements to either; make all repairs in and about the same necessary to
preserve them in good order and condition, which repairs shall be, In quality
and class, equal to the original work; promptly pay the expense of such repairs;
suffer no waste or injury; give prompt notice to the Landlord of any fire that
may occur; execute and comply with all laws, rules, orders, ordinances and
regulations at any time issued or in force (except those requiring structural
alterations), applicable to the demised premises or to the Tenant's occupation
thereof, of the Federal, State and Local Governments, and of each and every
department, bureau and official thereof, and of the New York Board of Fire
Underwriters; permit at all times during usual business hours, the Landlord and
representatives of the Landlord to enter the demised premises for the purpose of
inspection, and to exhibit them for purposes of sale or rental; suffer the
Landlord to make repairs and improvements to all parts of the building, and to
comply with all orders and requirements of governmental authority applicable to
said building or to any occupation thereof; suffer the Landlord to erect, use,
maintain, repair and replace pipes and conduits in the demised premises and to
the floors above and below; forever indemnify and save harmless the Landlord for
and against any and all liability, penalties, damages, expenses and judgments
arising from injury during said term to person or property of any nature,
occasioned wholly or in part by any act or acts, omission or omissions of the
Tenant, or of the employees, guests, agents, assigns or undertenants of the
Tenant and also for any matter or thing growing out of the occupation of the
demised premises or of the streets, sidewalks or vaults adjacent thereto;
permit, during the six months next prior to the expiration of the term the usual
notice "To Let" to be placed and to remain unmolested in a conspicuous place
upon the exterior of the demised premises; repair, at or before the end (of the
term, all injury done by the installation or removal of furniture and
property; and at the end of the term, to (quit and surrender the demised
premises with all alterations, additions and improvements in good order and
condition.**
MOVING INJURY SURRENDER
NEGATIVE COVENANTS
OBSTRUCTION SIGNS
AIR CONDITIONING
THIRD.--That the Tenant will not disfigure or deface any part of the
building, or suffer the same to be done, except so far as may be necessary to
affix such trade fixtures as are herein consented to by the Landlord; the Tenant
will not obstruct, or permit the obstruction of the street or the sidewalk
adjacent thereto; will not do anything, or suffer anything to be done upon the
demised premises which will increase the rate of fire insurance upon the
building or any of its contents, or be liable to cause structural injury to said
building; will not permit the accumulation of waste or refuse matter, and will
not, without the written consent of the Landlord first obtained in each case,
either sell, assign, mortgage or transfer this lease, underlet the demised
premises or any part thereof, permit the same or any part thereof to be occupied
by anybody other than the Tenant and the Tenant's employees, make any
alterations in the demised premises, use the demised premises or any part
thereof for any purpose other than the one first above stipulated, or for any
purpose deemed extra hazardous on account of fire risk, nor in violation of any
law or ordinance. That the Tenant will not obstruct or permit the obstruction
of the light, halls, stairway or entrances to the building, and will not erect
or inscribe any sign, signals or advertisements unless and until the style and
location thereof have been approved by the Landlord; and if any be erected or
inscribed without such approval, the Landlord may remove the same. No water
cooler, air conditioning unit or system or other apparatus shall be installed
or used without the prior written consent of Landlord.
* Landlord warranty for improvements to the demised premises is for a 1 year
period beginning on "Commencement Date"
IT IS MUTUALLY COVENANTED AND AGREED, THAT
FIRE CLAUSE
FOURTH.--If the demised premises shall be partially damaged by fire or
other cause without the fault or neglect of Tenant, Tenant's servants,
employees, agents, visitors or licensees, the damages shall be repaired by and
at the expense of Landlord and the rent until such repairs shall be made shall
be apportioned according to the part of the demised premises which is usable by
Tenant. But if such partial damage is due to the fault or neglect of Tenant,
Tenant's servants, employees, agents, visitors or licensees, without prejudice
to any other rights and remedies of Landlord and without prejudice to the rights
of subrogation of Landlord's insurer, the damages shall be repaired by Landlord
but there shall he no apportionment or abatement of rent. No penalty shall
accrue for reasonable delay which may arise by reason of adjustment of insurance
on the part of Landlord and/or Tenant, and for reasonable delay on account of
"labor troubles", or any other cause beyond Landlord's control. If the demised
premises are totally damaged or are rendered wholly untenantable by fire or
other cause, and if Landlord shall decide not to restore or not to rebuild the
same, or if the building shall be so damaged that Landlord shall decide to
demolish it or to rebuild it, then or in any of such events Landlord may, within
ninety (90) days after such fire or other cause, give Tenant a notice in writing
of such decision, which notice shall be given as in Paragraph Twelve hereof
provided, and thereupon the term of this lease shall expire by lapse of time
upon the third day after such notice is given, and Tenant shall vacate the
demised premises and surrender the same to Landlord. If Tenant shall not be in
default under this lease then, upon the termination of this lease under the
conditions provided for in the sentence immediately preceding, Tenant's
liability for rent shall cease as of the day following the casualty. Tenant
hereby expressly waives the provisions of Section 227 of the Real Property Law
and agrees that the foregoing provisions of this Article shall govern and
control in lieu thereof. If the damage or destruction be due to the fault or
neglect of Tenant the debris shall be removed by, and at the expense of, Tenant.
EMINENT DOMAIN
FIFTH.--If the whole or any part of the premises hereby demised shall be
taken or condemned by any competent authority for any public use or purpose then
the term hereby granted shall cease from the time when possession of the part so
taken shall be required for such public purpose and without apportionment of
award, the Tenant hereby assigning to the Landlord all right and claim to any
such award, the current rent, however, in such case to be apportioned.
LEASE NOT IN EFFECT
DEFAULTS
TEN DAY NOTICE
SIXTH.--If, before the commencement of the term, the Tenant be adjudicated
a bankrupt, or make a "general assignment," or take the benefit of any insolvent
act, or if a Receiver or Trustee be appointed for the Tenant's property, or if
this lease or the estate of the Tenant hereunder be transferred or pass to or
devolve upon any other person or corporation, or if the Tenant shall default in
the performance of any agreement by the Tenant contained in any other lease to
the Tenant by the Landlord or by any corporation of which an officer of the
Landlord is a Director, this lease shall thereby, at the option of the Landlord,
be terminated and in that case, neither the Tenant nor anybody claiming under
the Tenant shall be entitled to go into possession of the demised premises. If
after the commencement of the term, any of the events mentioned above in this
subdivision shall occur, or if Tenant shall make default in fulfilling any of
the covenants of this lease, other than the covenants for the payment of rent or
"additional rent" or if the demised premises become vacant or deserted, the
Landlord may give to the Tenant ten days' notice of intention to end the term of
this lease, and thereupon at the expiration of said ten days' (if said condition
which was the basis of said notice shall continue to exist) the term under this
lease shall expire as fully and completely as if that day were the date herein
definitely fixed for the expiration of the term and the Tenant will then quit
and surrender the demised premises to the Landlord, but the Tenant shall remain
liable as hereinafter provided.
RE-POSSESSION BY LANDLORD
RE-LETTING
WAIVER BY TENANT
If the Tenant shall make default in the payment of the rent reserved
hereunder, or any item of "additional rent" herein mentioned, or any part of
either or in making any other payment herein provided for, or if the notice last
above provided for shall have been given and if the condition which was the
basis of said notice shall exist at the expiration of said ten days' period, the
Landlord may immediately, or at any time thereafter, re-enter the demised
premises and remove all person and all or any property therefrom, either by
summary dispossess proceedings, or by any suitable action or proceeding at law,
or by force or otherwise, without being liable to indictment, prosecution or
damages therefor, and re-possess and enjoy said premises together with all
additions, alterations and improvements. In any such case or in the event that
this lease be "terminated" before the commencement of the term, as above
provided, the Landlord may either re-let the demised premises or any part or
parts thereof for the Landlord's own account, or may, at the Landlord's option,
re-let the demised premises or any part or parts thereof as the agent of the
Tenant, and receive the rents therefor, applying the same first to the payment
of such expenses as the Landlord may have incurred, and then to the fulfillment
of the covenants of the Tenant herein, and the balance, if any, at the
expiration of the term first above provided for, shall be paid to the Tenant.
Landlord may rent the premises for a term extending beyond the term hereby
granted without releasing Tenant from any liability.* In the event that the term
of this lease shall expire as above in this subdivision "Sixth" provided, or
terminate by summary proceedings or otherwise, and if the Landlord shall not
re-let the demised premises for the Landlord's own account, then, whether or not
the premises be re-let, the Tenant shall remain liable for, and the Tenant
hereby agrees to pay to the Landlord, until the time when this lease would have
expired but for such termination or expiration, the equivalent of the amount of
all of the rent and "additional rent" reserved herein, less the avails of
reletting, if any, and the same shall be due and payable by the Tenant to the
Landlord on the several rent days above specified, that is, upon each of such
rent days the Tenant shall pay to the Landlord the amount of deficiency then
existing. The Tenant hereby expressly waives any and all right of redemption in
case the Tenant shall be dispossessed by judgment or warrant of any court of
judge, and the Tenant waives and will waive all right to trial by jury in any
summary proceedings hereafter instituted by the Landlord against the Tenant in
respect to the demised premises. The word "re-enter" and "re-entry" as used in
this lease are not restricted to their technical legal meaning.
*Tenant liability is restricted to the end of the lease term.
REMEDIES ARE CUMULATIVE
In the event of a breach or threatened breach by the Tenant of any of the
covenants or provisions hereof, the Landlord shall have the right of injunction
and the right to invoke any remedy allowed at law or in equity, as if re-entry,
summary proceedings and other remedies were not herein provided for.
LANDLORD MAY PERFORM
ADDITIONAL RENT
SEVENTH.--If the Tenant shall make default in the performance of any
covenant herein contained, the Landlord may immediately, or at any time
thereafter, without notice, perform the same for the account of the Tenant. If a
notice of mechanic's lien be filed against the demised premises or against
premises of which the demised premises are part, for, or purporting to be for,
labor or material alleged to have been furnished, or to be furnished to or for
the Tenant at the demised premises, and if the Tenant shall fail to take such
action as shall cause such lien to be discharged within fifteen days after the
filing of such notice, the Landlord may pay the amount of such lien or discharge
the same by deposit or by bonding proceedings, and in the event of such deposit
or bonding proceedings, the Landlord may require the lienor to prosecute an
appropriate action to enforce the lienor's claim. In such case, the Landlord may
pay any judgment recovered on such claim. Any amount paid or expense incurred by
the Landlord as in this subdivision of this lease provided, and any amount as to
which the Tenant shall at any time be in default for or in respect to the use of
water, electric current or sprinkler supervisory service, and any expense
incurred or sum of money paid by the Landlord by reason of the failure of the
Tenant to comply with any provision hereof, or in defending any such action,
shall be deemed to be "additional rent" for the demised premises, and shall be
due and payable by the Tenant to the Landlord on the first day of the next
following month, or, at the option of the Landlord, on the first day of any
succeeding month. The receipt by the Landlord of any instalment of the regular
stipulated rent hereunder or any of said "additional rent" shall not be a waiver
of any other "additional rent" then due.
AS TO WAIVERS
EIGHTH.--The failure of the Landlord 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 or a
relinquishment for the future of such covenant or option, but the same shall
continue and remain in full force and effect. The receipt by the Landlord of
rent, with knowledge of the breach of any covenant hereof, shall not be deemed a
waiver of such breach and no waiver by the Landlord of any provision hereof
shall be deemed to have been made unless expressed in writing and signed by the
Landlord. Even though the Landlord shall consent to an assignment hereof no
further assignment shall be made without express consent in writing by the
Landlord.
COLLECTION OF RENT FROM OTHERS
NINTH.--If this lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than the Tenant the Landlord
may collect rent from the assignee, under-tenant or occupant, and apply the net
amount collected to the rent herein reserved, and no such collection shall be
deemed a waiver of the covenant herein against assignment and underletting, or
the acceptance of the assignee, under-tenant or occupant as tenant, or a release
of the Tenant from the further performance by the Tenant of the covenants herein
contained on the part of the Tenant.
MORTGAGES
[VOID]
IMPROVEMENTS
ELEVENTH.--All improvements made by the Tenant to or upon the demised
premises, except said trade fixtures, shall when made, at once be deemed to be
attached to the freehold, and become the property of the Landlord, and at the
end or other expiration of the term, shall be surrendered to the Landlord in as
good order and condition as they were when installed, reasonable wear and
damages by the elements excepted.
NOTICES
[VOID]
NO LIABILITY
THIRTEENTH.--The Landlord shall not be liable for any failure of water
supply or electrical current, sprinkler damage, or failure of sprinkler service,
nor for injury or damage to person or property caused by the elements or by
other tenants or persons in said building, or resulting from steam, gas,
electricity, water, rain or snow, which may leak or flow from any pant of said
buildings, or from the pipes, appliances or plumbing works of the same, or from
the street or sub-surface, or from any other place, nor for interference with
light or other incorporeal hereditaments by anybody other than the Landlord, or
caused by operations by or for a governmental authority in construction of any
public or quasi-public work, neither shall the Landlord be liable for any latent
defect in the building,
NO ABATEMENT
FOURTEENTH.--No diminution or abatement of rent, or other compensation
shall be claimed or allowed for inconvenience or discomfort arising from the
making of repairs or improvements to the building or to its appliances, nor for
any space taken to comply with any law, ordinance or order of a governmental
authority. In respect to the various "services," if any, herein expressly or
impliedly agreed to be furnished by the Landlord to the Tenant, it is agreed
that there shall be no diminution or abatement of the rent, or any other
compensation, for interruption or curtailment of such "service" when such
interruption or curtailment shall be due to accident, alterations or repairs
desirable or necessary to be made or to inability or difficulty in securing
supplies or labor for the maintenance of such "service" or to some other cause,
not gross negligence on the part of the Landlord. No such interruption or
curtailment of any such "service" shall be deemed a constructive eviction. The
Landlord shall not be required to furnish, and the Tenant shall not be entitled
to receive, any of such "services" during any period wherein the Tenant shall be
in default in respect to the payment of rent. Neither shall there be any
abatement or diminution of rent because of making of repairs, improvements or
decorations to the demised premises after the date above fixed for the
commencement of the term, it being understood that rent shall, in any event,
commence to run at such date so above fixed.
RULES, ETC.
FIFTEENTH.--The Landlord may prescribe and regulate the placing of safes,
machinery, quantities of merchandise and other things. The Landlord may also
prescribe and regulate which elevator and entrances shall be used by the
Tenant's employees, and for the Tenant's shipping. The Landlord may make such
other and further rules and regulations as, in the Landlord's judgment, may from
time to time be needful for the safety, care or cleanliness of the building, and
for the preservation of good order therein. The Tenant and the employees and
agents of the Tenant will observe and conform to all such rules and regulations.
SHORING OF WALLS
[VOID]
VAULT SPACE
[VOID]
ENTRY
EIGHTEENTH.--That during seven months prior to the expiration of the term
hereby granted, applicants shall be admitted at all reasonable hours of the day
to view the premises until rented; and the Landlord and the Landlord's agents
shall be permitted at any time during the term to visit and examine them at any
reasonable hour of the day, and workmen may enter at any time, when authorized
by the Landlord or the Landlord's agents, to make or facilitate repairs in any
part of the building; and if the said Tenant shall not be personally present to
open and permit an entry into said premises, at any time, when for any reason an
entry therein shall be necessary or permissible hereunder, the Landlord or the
Landlord's agents may forcibly enter the same without rendering the Landlord or
such agents liable to any claim or cause of action for damages by reason thereof
(if during such entry the Landlord shall accord reasonable care to the Tenant's
property) and without in any manner affecting the obligations and covenants of
this lease; it is, however, expressly understood that the right and authority
hereby reserved, does not impose, nor does the Landlord assume, by reason
thereof, any responsibility or liability whatsoever for the care or supervision
of said premises, or any of the pipes, fixtures appliances or appurtenances
therein contained or therewith in any manner connected. ***
NO REPRESENTATIONS
NINETEENTH.--The Landlord has made no representations or promises in
respect to said building or to the demised premises except those contained
herein, and those, if any, contained in some written communication to the
Tenant, signed by the Landlord. This instrument may not be changed, modified,
discharged or terminated orally.
ATTORNEY'S FEES
TWENTIETH.--If the Tenant shall at any time be in default hereunder, and
if the Landlord shall institute an action or summary proceeding against the
Tenant based upon such default, then the Tenant will reimburse the Landlord for
the expense of attorneys' fees and disbursements thereby incurred by the
Landlord, so far as the same are reasonable in amount. Also so long as the
Tenant shall be a tenant hereunder the amount of such expenses shall be deemed
to be "additional rent" hereunder and shall be due from the Tenant to the
Landlord on the first day of the month following the incurring of such
respective expenses.
POSSESSION
TWENTY-FIRST.--Landlord shall not be liable for failure to give possession
of the premises upon commencement date by reason of the fact that premises are
not ready for occupancy, or due to a prior Tenant wrongfully holding over or any
other person wrongfully in possession or for any other reason: in such event the
rent shall not commence until possession is given or is available, but the term
herein shall not be extended.
***This provision alludes to the minimum access granted to Landlord and is
meant t[Illegible]
THE TENANT FURTHER COVENANTS:
IF A FIRST FLOOR
[VOID]
INCREASED FIRE INSURANCE RATE
TWENTY-THIRD.--If by reason of the conduct upon the demised premises of a
business not herein permitted, or if by reason of the improper or careless
conduct of any business upon or use of the demised premises, the fire insurance
rate shall at any time be higher than it otherwise would be, then the Tenant
will reimburse the Landlord, as additional rent hereunder, for that part of all
fire insurance premiums hereafter paid out by the Landlord which shall have been
charged because of the conduct of such business not so permitted, or because of
the improper or careless conduct of any business upon or use of the demised
premises, and will make such reimbursement upon the first day of the month
following such outlay by the Landlord; but this covenant shall not apply to a
premium for any period beyond the expiration date of this lease, first above
specified. In any action or proceeding wherein the Landlord and Tenant are
parties, a schedule or "make up" of rate for the building on the demised
premises, purporting to have been issued by New York Fire Insurance Exchange, or
other body making fire insurance rates for the demised premises, shall be prima
facie evidence of the facts therein stated and of the several items and charges
included in the fire insurance rate then applicable to the demised premises.
WATER RENT
SEWER
TWENTY-FOURTH.--If a separate water meter be installed for the demised
premises, or any part thereof, the Tenant will keep the same in repair and pay
the charges made by the municipality or water supply company for or in respect
to the consumption of water, as and when bills therefor are rendered. If the
demised premises, or any part thereof, be supplied with water through a meter
which supplies other premises, the Tenant will pay to the Landlord, as and when
bills are rendered therefor, the Tenant's proportionate part of all charges
which the municipality or water supply company shall make for all water consumed
through said meter, as indicated by said meter. Such proportionate part shall be
fixed by apportioning the respective charge according to floor area against all
of the rentable floor area in the building (exclusive of the basement) which
shall have been occupied during the period of the respective charges, taking
into account the period that each part of such area was occupied. Tenant agrees
to pay as additional rent the Tenant's proportionate part, determined as
aforesaid, of the sewer rent or charge imposed or assessed upon the building of
which the premises are a part.
ELECTRIC CURRENT
TWENTY-FIFTH.--That the Tenant will purchase from the Landlord, if the
Landlord shall so desire, all electric current that the Tenant requires at the
demised premises, and will pay the Landlord for the same, as the amount of
consumption shall be indicated by the meter furnished therefor. The price for
said current shall be the same as that charged for consumption similar to that
of the Tenant by the company supplying electricity in the same community.
Payments shall be due as and when bills shall be rendered. The Tenant shall
comply with like rules, regulations and contract provisions as those prescribed
by said company for a consumption similar to that of the Tenant.
SPRINKLER SYSTEM
TWENTY-SIXTH.--If there now is or shall be installed in said building a
"sprinkler system" the Tenant agrees to keep the appliances thereto in the
demised premises in repair and good working condition, and if the New York Board
of Fire Underwriters or the New York Fire Insurance Exchange or any bureau,
department or official of the State or local government requires or recommends
that any changes, modifications, alterations or additional sprinkler heads or
other equipment be made or supplied by reason of the Tenant's business, or the
location of partitions, trade fixtures, or other contents of the demised
premises, or if such changes, modifications, alterations, additional sprinkler
heads or other equipment in the demised premises are necessary to prevent the
imposition of a penalty or charge against the full allowance for a sprinkler
system in the fire insurance rate as fixed by said Exchange, or by any Fire
Insurance Company, the Tenant will at the Tenant's own expense, promptly make
and supply such changes, modifications, alterations, additional sprinkler heads
or other equipment. As additional rent hereunder the Tenant will pay to the
Landlord, annually in advance, throughout the term $ a prorata portion toward
the contract price for sprinkler supervisory service.
SECURITY
TWENTY-SEVENTH.--The sum of see paragraph #1 of Addendum Sec. V
Dollars is deposited by the Tenant herein with the Landlord herein as security
for the faithful performance of all the covenants and conditions of the lease by
the said Tenant. If the Tenant faithfully performs all the covenants and
conditions on his part to be performed, then the sum deposited shall be returned
to said Tenant.
NUISANCE
TWENTY-EIGHTH.--This lease is granted and accepted on the especially
understood and agreed condition that the Tenant will conduct his business in
such a manner, both as regards noise and kindred nuisances, as will in no wise
interfere with, annoy, or disturb any other tenants, in the conduct of their
several businesses, or the landlord in the management of the building; under
penalty of forfeiture of this lease and consequential damages.
BROKERS COMMISSIONS
TWENTY-NINTH.--The Landlord hereby recognizes no broker as the broker who
negotiated and consummated this lease with the Tenant herein, and agrees that
if, as, and when the Tenant exercises the option, if any, contained herein to
renew this lease, or fails to exercise the option, if any, contained therein to
cancel this lease, the Landlord will pay to said broker a further commission in
accordance with the rules and commission rates of the Real Estate Board in the
community. A sale, transfer, or other disposition of the Landlord's interest in
said lease shall not operate to defeat the Landlord's obligation to pay the said
commission to the said broker. The Tenant herein hereby represents to the
Landlord that the said broker is the sole and only broker who negotiated and
consummated this lease with the Tenant.
WINDOW CLEANING
[VOID]
VALIDITY
THIRTY-FIRST.--The invalidity or unenforceability of any provision of this
lease shall in no way affect the validity or enforceability of any other
provision hereof.
EXECUTION & DELIVERY OF LEASE
THIRTY-SECOND.--In order to avoid delay, this lease has been prepared and
submitted to the Tenant for signature with the understanding that it shall not
bind the Landlord unless and until it is executed and delivered by the Landlord.
EXTERIOR OF THE PREMISES
[VOID]
PLATE GLASS
THIRTY-FOURTH.--The Landlord shall replace at the expense of the Tenant
any and all broken glass in the skylights, doors and walls in and about the
demised premises. The Landlord may insure and keep insured all plate glass in
the skylights, doors and walls in the demised premises, for and in the name of
the Landlord and bills for the premiums therefor shall be rendered by the
Landlord to the Tenant at such times as the Landlord may elect, and shall be due
from and payable by the Tenant when rendered, and the amount thereof shall be
deemed to be, and shall be paid as, additional rent.
WAR EMERGENCY
THIRTY-FIFTH.--This lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in nowise be affected, impaired or excused
because Landlord is unable to supply or is delayed in supplying any service
expressly or impliedly to be supplied or is unable to make, or is delayed in
making any repairs, additions, alterations or decorations or is unable to supply
or is delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from so doing by reason of governmental preemption in connection with a
National Emergency declared by the President of the United States or in
connection with 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.
THE LANDLORD COVENANTS
QUIET POSSESSION
FIRST.--That if and so long as the Tenant pays the rent and "additional
rent" reserved hereby, and performs and observes the covenants and provisions
hereof, the Tenant shall quietly enjoy the demised premises, subject, however,
to the terms of this lease, and to the mortgages above mentioned, provided
however, that this covenant shall be conditioned upon the retention of title to
the premises by Landlord.
ELEVATOR HEAT
[VOID]
And it is mutually understood and agreed that the covenants and agreements
contained in the within lease shall be binding upon the parties hereto and upon
their respective successors, heirs, executors and administrators.
In Witness Whereof, the Landlord and Tenant have respectively signed and
sealed these presents the day and year first above written,
GYRODYNE COMPANY OF AMERICA, INC.
BY: /s/ [Illegible]
--------------------------------------[L.S.]
Landlord
IN PRESENCE OF:
BY: /s/ XXXXX XXXXX
--------------------------------------------
XXXXX XXXXX -- TENANT
BY: /s/ XXXX XXXXX
--------------------------------------[L.S.]
XXXX XXXXX -- TENANT Tenant
State of New York, County of ss:
On the day of 19 , before me personally came
, to me known, who, being by me duly sworn, did depose and say
that he resides at ; that he is of
, the corporation described in and which executed the within
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.
State of New York, County of SUFFOLK ss:
On the 23 day of March 19 , before me personally came XXXX XXXXXXX, to me
known, who, being by me duly sworn, did depose and say that he resides at
; that he is of
MARYLAND DAY CARE CENTER, INC. the corporation described in and which executed
the within 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.
State of New York, County of SUFFOLK ss:
On the 23 day of MARCH 19 , before me personally came XXXXX XXXXX
to me known and known to me to be the individual described in and who executed
the foregoing instrument, and duly acknowledged that he executed the same.
/s/ Xxxxxx X. Xxxx
XXXXXX X. XXXX
NOTARY PUBLIC, State of New York
No. 4894804, Suffolk County
Commission Expires April 20, 0000
Xxxxx xx Xxx Xxxx, Xxxxxx xx XXXXXXX ss:
On the 23 day of MARCH 19 , before me personally came XXXX XXXXX,
subscribing witness to the foregoing instrument, with whom I am personally
acquainted, who, being by me duly sworn, did depose and say, that he resided, at
the time of the execution of said instrument, and
still resides, in that he is and then was acquainted with
, and knew to be the
individual described in and who executed the foregoing instrument; and that he,
said subscribing witness, was present and saw execute the same;
and that he, said witness, thereupon at the same time subscribed his name as
witness thereto.
/s/ Xxxxxx X. Xxxx
XXXXXX X. XXXX
NOTARY PUBLIC, State of New York
No. 4894804, Suffolk County
Commission Expires April 20, 1995
================================================================================
BUILDING FLOWERFIELD 7
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Premises SUITE 44
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GYRODYNE COMPANY OF AMERICA, INC.
Landlord
to
XXXXX XXXXX AND XXXX XXXXX
Tenant
================================================================================
L E A S E
================================================================================
================================================================================
C0 GUARANTY
In consideration of the letting of the premises within mentioned to the
Tenant within named, and of the sum of One Dollar, to the undersigned in hand
paid by the Landlord within named, the undersigned hereby guarantees to the
Landlord and to the heirs, successors and/or assigns of the Landlord, the
payment by the Tenant of the rent, within provided for, and the performance by
the Tenant of all of the provisions of the within lease. Notice of all defaults
is waived, and consent is hereby given to all extensions of time that any
Landlord may grant.
Dated, 19 MARYLAND DAY CARE CENTER, INC.
BY:_____________________________L.S.
STATE OF NEW YORK COUNTY OF SUFFOLK ss:
On this 23RD day of MARCH, 1995, before me personally appeared XXXX XXXXX
AND XXXXX XXXXX to me known and known to me to be the individual described in
and who executed the foregoing instrument, and duly acknowledged to me that he
executed the same.
CO-GUARANTY
/s/ Xxxx Xxxxx
----------------------------------------
/s/ Xxxxxx X. Xxxx XXXX XXXXX
XXXXXX X. XXXX
NOTARY PUBLIC, State of New York /s/ Xxxxx Xxxxx
Xx. 0000000, Xxxxxxx Xxxxxx ----------------------------------------
Commission Expires April 20, 1995 XXXXX XXXXX
