Exhibit 10.44
AGREEMENT OF LEASE, made as of this 6th day of January, 2003, between Xxxxxx
Holding Company having an address at 000 Xxxxx Xxxxxxxx, Xxxxxxx, Xxx Xxxx
00000, party of the first part, hereinafter referred to as OWNER, and Endo
Pharmaceuticals Inc., a Delaware Corporation, having an address at 000 Xxxxxxxx
Xxxxx, Xxxxxx Xxxx, Xxxxxxxxxxxx 00000, party of the second part, hereinafter
referred to as TENANT.
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby leases from Owner
the land and building known as 000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx
00000 for the term of Ten (10) Years (or until such term shall sooner cease and
expire as hereinafter provided) to commence on the first day of the month in
which delivery of possession of the Premises occurs and to terminate on the last
day of the 119th month following the month in which the delivery of possession
of the Premises occurs, both dates inclusive, at an annual rental rate of One
Hundred Fifty-Two Thousand Three Hundred Ninety-Seven and 00/100 Dollars
($152,397.00) during the first year of the term and thereafter as provided for
in Rider B attached hereto, which Tenant agrees to pay in lawful money of the
United States which shall be legal tender in payment of all debts and dues,
public and private, at the time of payment, in equal monthly installments in
advance on the first day of each month during said term, at the office of Owner
or such other place as Owner may designate, without any set off or deduction
whatsoever, except that Tenant shall pay the first monthly installment(s) on the
execution hereof (unless this lease be a renewal).
In the event that, at the commencement of the term of this lease, or thereafter,
Tenant shall be in default in the payment of rent to Owner pursuant to the terms
of another lease with Owner or with Owner's predecessor in interest, Owner may
at Owner's option and without notice to Tenant add the amount of such arrears to
any monthly installment of rent payable hereunder and the same shall be payable
to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
OCCUPANCY:
1. Tenant shall pay the rent as above and as hereinafter provided.
USE:
2. Tenant shall use and occupy demised premises for pharmaceutical research and
development and pharmaceutical testing labs with incidental offices and
warehouse provided such use is in accordance with the Certificate of Occupancy
for the building, if any, and for no other purpose.
ALTERATIONS:
3. Tenant shall make no changes in or to the demised premises of any nature
without Owner's prior written consent. Subject to the prior written consent of
Owner, and to the provisions of this article, Tenant at Tenant's expense, may
make alterations, installations, additions or improvements which are
non-structural and which do not affect utility services or plumbing and
electrical lines in or to the interior of the demised premises using contractors
or mechanics first approved by the Owner. Tenant shall, at its expense, before
making any alterations, additions or improvements obtain all permits, approval
and certificates required by any governmental or quasi-governmental bodies and
(upon completion) certificates of final approval thereof and shall deliver
promptly duplicates of all such permits, approvals and certificates to Owner.
Tenant agrees to carry and will cause Tenant's contractors and sub-contractors
to carry such xxxxxxx'x compensation, general liability, personal and property
damage insurance as Owner may require. If any mechanic's lien is filed against
the demised premises, or the building of which the same forms a part, for work
claimed to have been done for, or materials furnished to, Tenant, whether or not
done pursuant to this article, the same shall be discharged by Tenant within
thirty days thereafter, at Tenant's expense taking all necessary legal steps
including filing such bonds as will be set by the Court to remove the mechanic's
lien. All fixtures and all paneling, partitions, railings and like
installations, installed in the premises at any time, either by Tenant or by
Owner on Tenant's behalf, shall, upon installation, become the property of Owner
and shall remain upon and be surrendered with the demised premises unless Owner,
by notice to Tenant no later than twenty days prior to the date fixed as the
termination of this lease, elects to
relinquish Owner's right thereto and to have them removed by Tenant, in which
event the same shall be removed from the demised premises by Tenant prior to the
expiration of the lease, at Tenant's expense. Nothing in this Article shall be
construed to give Owner title to or to prevent Tenant's removal of trade
fixtures, moveable office furniture and equipment, but upon removal of any such
from the premises or upon removal of other installations as may be required by
Owner, Tenant shall immediately and at its expense, repair and restore the
premises to the condition existing prior to installation and repair any damage
to the demised premises or the building due to such removal. All property
permitted or required to be removed, by Tenant at the end of the term remaining
in the premises after Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or removed from the
premises by Owner, at Tenant's expense.
REPAIRS:
4. [Intentionally Omitted.]
WINDOW CLEANING:
5. Tenant will not clean or require, permit, suffer or allow any window in the
demised premises to be cleaned from the outside in violation of Section 202 of
the New York State Labor Law or any other applicable law or of the Rules of the
Board of Standards and Appeals, or of any other Board or body having asserting
jurisdiction.
REQUIREMENTS OF LAW, FIRE INSURANCE, FLOOR LOADS:
6. Prior to the commencement of the lease term, if Tenant is then in possession,
and at all times there-after, Tenant shall, at Tenant's sole cost and expense,
promptly comply with all present and future laws, orders and regulations of all
state, federal, municipal and local governments, departments, commissions and
boards and any direction of any public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters, or the
Insurance Services Office, or any similar body which shall impose any violation,
order or duty upon Owner or Tenant with respect to the demised premises, whether
or not arising out of Tenant's use or manner of use thereof, or, with respect to
the building, if arising out of Tenant's use or manner of use of the demised
premises or the building (including the use permitted under the lease). Except
as provided in Article 30 hereof, nothing herein shall require Tenant to make
structural repairs or alterations unless Tenant has, by its manner of use of the
demised premises or method of operation therein, violated any such laws,
ordinances, orders, rules, regulations or requirements with respect thereto.
Tenant shall not do or permit any act or thing to be done in or to the demised
premises which is contrary to law, or which will invalidate or be in conflict
with public liability, fire or other policies of insurance at any time carried
by or for the benefit of Owner. Tenant shall not keep anything in the demised
premises except as now or hereafter permitted by the Fire Department, Board of
Fire Underwriters, Fire Insurance Rating Organization and other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in effect prior to the commencement of
Tenant's occupancy. If by reason of failure to comply with the foregoing the
fire insurance rate shall, at the beginning of this lease or at any time
thereafter, be higher than it otherwise would be, then Tenant shall reimburse
Owner, as additional rent hereunder, for that portion of all fire insurance
premiums thereafter paid by Owner which shall have been charged because of such
failure by Tenant. In any action or proceeding wherein Owner and Tenant are
parties, a schedule or "make-up" or rate for the building or demised premises
issued by a body making fire insurance rates applicable to said premises shall
be conclusive evidence of the facts therein stated and of the several items and
charges in the fire insurance rates then applicable to said premises. Tenant
shall not place a load upon any floor of the demised premises exceeding the
floor load per square foot area which it was designed to carry and which is
allowed by law. Owner reserves the right to prescribe the weight and position of
all safes, business machines and mechanical equipment. Such installations shall
be placed and maintained by Tenant, at Tenant's expense, in settings sufficient,
in Owner's judgement, to absorb and prevent vibration, noise and annoyance.
SUBORDINATION:
7. This lease is subject and subordinate to all ground or underlying leases and
to all mortgages which may now or hereafter affect such leases or the real
property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument or subordination shall be required by any ground or
underlying lessor or by any
mortgagee, affecting any lease or the real property of which the demised
premises are a part. In confirmation of such subordination, Tenant shall execute
promptly any certificate that Owner may reasonably request.
PROPERTY LOSS, DAMAGE REIMBURSEMENT, INDEMNIFICATION:
8. Owner or its agents shall not be liable for any damage to property of Tenant
or of others, nor for loss of or damage to any property of Tenant by theft or
otherwise, nor for any injury or damage to persons or property resulting from
any cause of whatsoever nature, unless caused by or due to the negligence of
Owner, its agents, servants or employees; Owner or its agents shall not be
liable for any damage caused by other tenants or persons in, upon or about said
building or caused by operations in connection of any private, public or
quasi-public work. If at any time any windows of the demised premises are
temporarily closed, darkened or bricked up (or permanently closed, darkened or
bricked up, if required by law) for any reason whatsoever including, but not
limited to Owner's own acts, Owner shall not be liable for any damage Tenant may
sustain thereby and Tenant shall not be entitled to any compensation therefor
nor abatement or diminution of rent nor shall the same release Tenant from its
obligations hereunder nor constitute an eviction. Landlord shall give Tenant
prior reasonable written notice of any such closing, darkening or bricking up of
windows. Tenant shall indemnify and save harmless Owner against and from all
liabilities, obligations, damages, penalties, claims, costs and expenses for
which Owner shall not be reimbursed by insurance, including reasonable
attorney's fees, paid, suffered or incurred as a result of any breach by Tenant,
Tenant's agents, contractors, employees, invitees, or licensees, of any covenant
or condition of this lease, or the carelessness, negligence or improper conduct
of the Tenant, Tenant's agents, contractors, employees, invitees or licensees.
Tenant's liability under this lease extends to the acts and omissions of any
sub-tenant, and any agent, contractor, employee, invitee or licensee of any
sub-tenant. In case any action or proceeding is brought against Owner by reason
of any such claim, Tenant, upon written notice from Owner, will at Tenant's
expense, resist or defend such action or proceeding by counsel reasonably
approved by Owner in writing, such approval not to be unreasonably withheld.
DESTRUCTION, FIRE AND OTHER CASUALTY:
9. (a) If the demised premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give immediate notice thereof to Owner and this
lease shall continue in full force and effect except as hereinafter set forth.
(b) If the demised premises are partially damaged or rendered partially
unusable by fire or other casualty, the damages thereto shall be repaired by and
at the expense of Owner and the rent, until such repair shall be substantially
completed, shall be apportioned from the day following the casualty according to
the part of the premises which is usable.
(c) If the demised premises are totally damaged or rendered wholly
unusable by fire or other casualty, then the rent shall be proportionally paid
up to the time of the casualty and thenceforth shall cease until the date when
the premises shall have been repaired and restored by Owner, subject to Owner's
right to elect not to restore the same as hereinafter provided.
(d) If the demised premises are rendered wholly unusable or (whether or
not the demised premises are damaged in whole or in part) if the building shall
be so damaged that Owner shall decide to demolish it or to rebuild it, then, in
any of such events, Owner may elect to terminate this lease by written notice to
Tenant, given within 90 days after such fire or casualty, specifying a date for
the expiration of the lease, which date shall not be more than 60 days after the
giving of such notice, and upon the date specified in such notice the term of
this lease shall expire as fully and completely as if such date were the date
set forth above for the termination of this lease and Tenant shall forthwith
quit, surrender and vacate the premises without prejudice however, to Owner's
rights and remedies against Tenant under the lease provisions in effect prior to
such termination, and any rent owing shall be paid up to such date and any
payments of rent made by Tenant which were on account of any period subsequent
to such date shall be returned to Tenant.
Unless Owner shall serve a termination notice as provided for herein,
Owner shall make the repairs and restorations under the conditions of (b) and
(c) hereof, with all reasonable expedition, subject to delays due to adjustment
of insurance claims, labor troubles and causes beyond Owner's control. After any
such casualty, Tenant shall cooperate with Owner's restoration by removing from
the premises as promptly as reasonably possible, all of
Tenant's salvageable inventory and movable equipment, furniture, and other
property. Tenant's liability for rent shall resume five (5) days after written
notice from Owner that the premises are substantially ready for Tenant's
occupancy.
(e) Nothing contained hereinabove shall relieve Tenant from liability that
may exist as a result of damage from fire or other casualty. Notwithstanding the
foregoing, each party shall look first to any insurance in its favor before
making any claim against the other party for recovery for loss or damage
resulting from fire or other casualty, and to the extent that such insurance is
in force and collectible and to the extent permitted by law, Owner and Tenant
each hereby releases and waives all right of recovery against the other or any
one claiming through or under each of them by way of subrogation or otherwise.
The foregoing release and waiver shall be in force only if both releasors'
insurance policies contain a clause providing that such a release or waiver
shall not invalidate the insurance. If, and to the extent, that such waiver can
be obtained only by the payment of additional premiums, then the party
benefiting from the waiver shall pay such premium within ten days after written
demand or shall be deemed to have agreed that the party obtaining insurance
coverage shall be free of any further obligation under the provisions hereof
with respect to waiver of subrogation. Tenant acknowledges that Owner will not
carry insurance on Tenant's furniture and or furnishings or any fixtures or
equipment, improvements, or appurtenances removable by Tenant and agrees that
Owner will not be obligated to repair any damage thereto or replace the same.
(f) Tenant hereby waives the provisions of Section 227 of the Real
Property Law and agrees that the provisions of this article shall govern and
control in lieu thereof. Anything contained in Article 9 to the contrary
notwithstanding, if, after a fire or other casualty, Landlord shall not have
substantially restored the Property to its condition existing immediately prior
to such fire or other casualty within one year from the date of Landlord's
receipt of the insurance proceeds therefor, Tenant, upon thirty days' prior
written notice to Landlord, may elect to terminate the term of this Lease as of
the thirtieth day after the date of Landlord's receipt of Tenant's notice,
provided, however, if Landlord shall have substantially completed the
restoration of the Property within said thirty day notice period, Tenant's
termination of the term of this Lease shall be deemed null and void and of no
force and effect.
EMINENT DOMAIN:
10. [Intentionally Omitted.]
ASSIGNMENT, MORTGAGE, ETC.:
11. Tenant, for itself, its heirs, distributees, executors, administrators,
legal representatives, successors and assigns, expressly covenants that it shall
not assign, mortgage or encumber this agreement, nor underlet, or suffer or
permit the demised premises or any part thereof to be used by others, without
the prior written consent of Owner in each instance. Transfer of the majority of
the stock of a corporate Tenant shall be deemed an assignment. If this lease be
assigned, or if the demised premises, or any part thereof be underlet or
occupied by anybody other than Tenant, Owner may, after default by Tenant,
collect rent from the assignee, under-tenant or occupant, and apply the net
amount collected to the rent herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of this covenant,
or the acceptance of the assignee, under-tenant or occupant as tenant, or a
release of Tenant from the further performance by Tenant of covenants on the
part of Tenant herein contained. The consent by Owner to an assignment or
underletting shall not in any wise be construed to relieve Tenant from obtaining
the express consent in writing of Owner to any further assignment or
underletting.
ELECTRIC CURRENT:
12. Tenant covenants and agrees that at all times its use of electric current
shall not exceed the capacity of existing leeders to the building or the risers
or wiring installation and Tenant may not use any electrical equipment which, in
Owner's opinion, reasonably exercised, will overload such installations or
interefere with the use thereof by other tenants of the building. The change at
any time of the character of electric service shall in no wise make Owner liable
or responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain.
ACCESS TO PREMISES:
13. Owner or Owner's agents shall have the right (but shall not be obligated) to
enter the demised premises in any emergency at any time, and, at other
reasonable times, to examine the same and to make such repairs, replacements and
improvements as Owner may deem necessary and reasonably desirable to any portion
of the building or which Owner may elect to perform in the premises after
Tenant's failure to make repairs or perform any work which Tenant is obligated
to perform under this lease, or for the purpose of complying with laws,
regulations and other directions of governmental authorities. Tenant shall
permit Owner to use and maintain and replace pipes and conduits in and through
the demised premises and to erect new pipes and conduits therein provided,
wherever possible, they are within walls or otherwise concealed. Owner may,
during the progress of any work in the demised premises, take all necessary
materials and equipment into said premises without the same constituting an
eviction nor shall the Tenant be entitled to any abatement of rent while such
work is in progress nor to any damages by reason of loss or interruption of
business or otherwise. Throughout the term hereof Owner shall have the right to
enter the demised premises at reasonable hours for the purpose of showing the
same to prospective purchasers or mortgagees of the building, and during the
last six months of the term for the purpose of showing the same to prospective
tenants and may, during said six months period, place upon the premises the
usual notices "To Let" and "For Sale" which notices Tenant shall permit to
remain thereon without molestation. If Tenant is not present to open and permit
an entry into the premises, Owner or Owner's agents may enter the same whenever
such entry may be necessary or permissible by master key or forcibly and
provided reasonable care is exercised to safeguard Tenant's property, such entry
shall not render Owner or its agents liable therefor, nor in any event shall the
obligations of Tenant hereunder be affected. If during the last month of the
term Tenant shall have removed all or substantially all of Tenant's property
therefrom, Owner may immediately enter, alter, renovate or redecorate the
demised premises without limitation or abatement of rent, or incurring liability
to Tenant for any compensation and such act shall have no effect on this lease
or Tenant's obligations hereunder.
Anything contained in this Article 13 and in paragraphs C -- 1.01 and C --
5.02 of this Lease to the contrary notwithstanding, except in the case of
emergencies which immediately threaten personal injury or property damage,
Landlord shall give Tenant at least five business days' prior written notice of
the entry into the Premises of Landlord, its agents, employees or contractors,
and the reason for such entry. Landlord, its agents, employees or contractors
must be accompanied by a Tenant employee through the period of the entry into
the Premises. Landlord shall have the option to seek any damages to which
Landlord is entitled by law for such breach and in addition, the following fees
will be assessed:
(a) First Tenant failure -- $ 5,000.00;
(b) Second Tenant failure -- $15,000.00;
(c) Third Tenant failure -- $15,000.00;
(d) Fourth Tenant failure -- $20,000.00;
(e) Fifth Tenant Failure -- $25,000.00;
(f) Sixth and subsequent Tenant failure -- increase by $10,000.00 over
the previous failure.
If Tenant fails to meet Landlord, its agents, employees or contractors in
order to accompany them during such entry, then, in such event, Tenant will be
in default of the Lease after Landlord serves Tenant with a five (5) days'
notice to cure and Tenant shall have failed to comply with or remedy such
default within or upon the expiration of said five (5) days.
In the event of any such emergencies hereinbefore described, Landlord and
emergency personnel may enter the Premises without any such prior notice to
Tenant, but, if Tenant shall have furnished Landlord with the telephone number
of a 24 hour contact representative, Landlord shall notify such Tenant
representative as soon as is reasonably practical under such emergency
situation, and Landlord shall also notify the police and/or fire department, as
appropriate in the circumstances. Tenant's security personnel or other
representative may accompany Landlord, its agents, employees or contractors
during any entry into the Premises in an emergency situation. In the event of
any entry into the Premises by Landlord, its agents, employees or contractors,
Landlord shall use reasonable efforts to minimize any damage to the Premises and
Tenant's property therein, and further, to minimize any interruption to the
conduct of Tenant's business in the Premises.
VAULT, VAULT SPACE, AREA:
14. No Vaults, vault space or area, whether or not enclosed or covered, not
within the property line of the building is leased hereunder, anything contained
in or indicated on any sketch, blue print or plan, or anything contained
elsewhere in this lease to the contrary notwithstanding. Owner makes no
representation as to the location of the property line of the building. All
vaults and vault space and all such areas not within the property line of the
building,
which Tenant may be permitted to use and/or occupy, is to be used and/or
occupied under a revocable license, and if any such license be revoked, or if
the amount of such space or area be diminished or required by any federal, state
or municipal authority or public utility, Owner shall not be subject to any
liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant, if used by Tenant,
whether or not specifically leased hereunder.
OCCUPANCY:
15. Tenant will not at any time use or occupy the demised premises in violation
of the certificate of occupancy issued for the building of which the demised
premises are a part. Tenant has inspected the premises and accepts them as is,
subject to the riders annexed hereto with respect to Owner's work, if any. In
any event, Owner makes no representation as to the condition of the premises and
Tenant agrees to accept the same subject to violations, whether or not of
record. If any governmental license or permit shall be required for the proper
and lawful conduct of Tenant's business, Tenant shall be responsible for and
shall procure and maintain such license or permit. Anything contained in this
Article 15 to the contrary notwithstanding, any violations existing on the
Premises or Property as of the date of this Lease shall be the responsibility of
Landlord.
BANKRUPTCY:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding, this
lease may be cancelled by Owner by sending of a written notice to Tenant within
a reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of any
state naming Tenant as the debtor; or (2) the making by Tenant of an assignment
or any other arrangement for the benefit of creditors under any state statute.
Neither Tenant nor any person claiming through or under Tenant, or by reason of
any statute or order of court, shall thereafter be entitled to possession of the
premises demised but shall forthwith quit and surrender the premises. If this
lease shall be assigned in accordance with its terms, the provisions of this
Article 16 shall be applicable only to the party then owning Tenant's interest
in this lease.
(b) It is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages an amount equal to the difference between
the rental reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof be relet by the Owner for the unexpired term of said lease, or any
part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such reletting
shall be deemed to be the fair and reasonable rental value for the part or the
whole of the premises so re-let during the term of the re-letting. Nothing
herein contained shall limit or prejudice the right of the Owner to prove for
and obtain as liquidated damages by reason of such termination, an amount equal
to the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
DEFAULT:
17. (1) If Tenant defaults in fulfilling any of the covenants of this lease
"other than the covenants for the payment of rent or additional rent; or if the
demised premises becomes vacant or deserted or if this lease be rejected under
Section 235 of Title 11 of the U.S. Code (bankruptcy code)"; or if any execution
or attachment shall be issued against Tenant or any of Tenant's property
whereupon the demised premises shall be taken or occupied by someone other than
Tenant; or if Tenant shall make default with respect to any other lease between
Owner and Tenant; or if Tenant shall have failed, after thirty (30) days written
notice, to redeposit with Owner any portion of the security deposited hereunder
which Owner has applied to the payment of any rent and additional rent due and
payable hereunder or failed to move into or take possession of the premises
within fifteen (15) days after the commencement of the term of this lease, of
which fact Owner shall be the sole judge; then in any one or more of such
events, upon Owner serving a
written thirty (30) days notice upon Tenant specifying the nature of said
default and upon the expiration of said thirty (30) days, if Tenant shall have
failed to comply with or remedy such default, or if the said default or omission
complained of shall be of a nature that the same cannot be completely cured or
remedied within said thirty (30) day period, and if Tenant shall not have
diligently commenced during such default within such thirty (30) day period, and
shall not thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default, then Owner may serve a written three (3) days'
notice of cancellation of this lease upon Tenant, and upon the expiration of
said three (3) days this lease and the term thereunder shall end and expire as
fully and completely as if the expiration of such three (3) day period were the
day herein definitely fixed for the end and expiration of this lease and the
term thereof and Tenant shall then quit and surrender the demised premises to
Owner but Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and
the term shall expire as aforesaid; or if Tenant shall make default in the
payment of the rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment herein required;
then and in any of such events Owner may without notice, re-enter the demised
premises either by force or otherwise, and dispossess Tenant by summary
proceedings or otherwise, and the legal representative of Tenant or other
occupant of demised premises and remove their effects and hold the premises as
if this lease had not been made, and Tenant hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that end. If
Tenant shall make default hereunder prior to the date fixed as the commencement
of any renewal or extension of this lease, Owner may cancel and terminate such
renewal or extension agreement by written notice.
REMEDIES OF OWNER AND WAIVER OF REDEMPTION:
18. In case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or otherwise, (a) the rent, and additional rent, shall
become due thereupon and be paid up to the time of such re-entry, dispossess
and/or expiration, (b) Owner may re-let the premises or any part or parts
thereof, either in the name of Owner or otherwise, for a term or terms, which
may at Owner's option be less than or exceed the period which would otherwise
have constituted the balance of the term of this lease and may grant concessions
or free rent or charge a higher rental than that in this lease (in an effort to
re-let the Premises, Landlord shall advertise the availability of the Premises
and list same with real estate brokers), (c) Tenant or the legal representatives
of Tenant shall also pay Owner as liquidated damages for the failure of Tenant
to observe and perform said Tenant's covenants herein contained, any deficiency
between the rent hereby reserved and or covenanted to be paid and the net
amount, if any, of the rents collected on account of the subsequent lease or
leases of the demised premises for each month of the period which would
otherwise have constituted the balance of the term of this lease. The failure of
Owner to re-let the premises or any part or parts thereof shall not release or
affect Tenant's liability for damages. In computing such liquidated damages
there shall be added to the said deficiency such expenses as Owner may incur in
connection with re-letting, such as legal expenses, attorneys' fees, brokerage,
advertising and for keeping the demised premises in good order or for preparing
the same for re-letting. Any such liquidated damages shall be paid in monthly
installments by Tenant on the rent day specified in this lease and any suit
brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Owner to collect the deficiency for any
subsequent month by a similar proceeding. Owner, in putting the demised premises
in good order or preparing the same for re-rental may, at Owner's option, make
such alterations, repairs, replacements, and/or decorations in the demised
premises as Owner, in Owner's reasonable judgment, considers advisable and
necessary for the purpose of re-letting the demised premises, and the making of
such alterations, repairs, replacements, and/or decorations shall not operate or
be construed to release Tenant from liability hereunder as a foresaid. Owner
shall in no event be liable in any way whatsoever for failure to re-let the
demised premises, or in the event that the demised premises are re-let, for
failure to collect the rent thereof under such re-letting and in no event shall
Tenant be entitled to receive any excess, if any, of such net rents collected
over the sums payable by Tenant to Owner hereunder. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof, Owner
shall have the right of injunction and the right to invoke any remedy allowed at
law or in equity as if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in equity. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws.
FEES AND EXPENSES:
19. If Tenant shall default in the observance or performance of any term or
covenant on Tenant's part to be observed or performed under or by virtue of any
of the terms or provisions in any article of this lease, then, unless otherwise
provided elsewhere in this lease, Owner may immediately or at any time
thereafter and without notice perform the obligation of Tenant thereunder. If
Owner, in connection with the foregoing or in connection with any default by
Tenant in the covenant to pay rent hereunder, makes any expenditures or incurs
any obligations for the payment of money, including but not limited to
attorney's fees, in instituting, prosecuting or defending any action or
proceedings, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Owner within thirty days of rendition of any xxxx or
statement to Tenant therefor. If Tenant's lease term shall have expired at the
time of making of such expenditures or incurring of such obligations, such sums
shall be recoverable by Owner as damages.
BUILDING ALTERATIONS AND MANAGEMENT:
22. [Intentionally Omitted.]
NO REPRESENTATIONS BY OWNER:
21. Neither Owner nor Owner's agents have made any representations or promises
with respect to the physical condition of the building, the land upon which it
is erected or the demised premises, the rents, leases, expenses of operation or
any other matter or thing affecting or related to the demised premises or the
building except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this lease. Tenant has inspected the building and
the demised premises and is thoroughly acquainted with their condition and
agrees to take the same "as is" on the date possession is tendered and
acknowledges that the taking of possession of the demised premises by Tenant
shall be conclusive evidence that the said premises and the building of which
the same form a part were in good and satisfactory condition at the time such
possession was so taken, except as to latent defects. All understandings and
agreements heretofore made between the parties hereto are merged in this
contract and riders which alone fully and completely expresses the agreement
between Owner and Tenant and any executory agreement hereafter made shall be
ineffective to change, modify, discharge or effect an abandonment of it in whole
or in part, unless such executory agreement is in writing and signed by the
party against whom enforcement of the change, modification, discharge or
abandonment is sought.
END OF TERM:
22. Upon the expiration or other termination of the term of this lease, Tenant
shall quit and surrender to Owner the demised premises, broom clean, in good
order and condition, ordinary wear and damages which Tenant is not required to
repair as provided elsewhere in this lease excepted, and Tenant shall remove all
its property from the demised premises. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of this
lease. If the last day of the term of this Lease or any renewal thereof, falls
on Sunday, this lease shall expire at noon on the preceding Saturday unless it
be a legal holiday in which case it shall expire at noon on the preceding
business day.
QUIET ENJOYMENT:
23. Owner covenants and agrees with Tenant that upon Tenant paying the rent and
additional rent and observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of this lease including, but not limited to, Article 34
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
FAILURE TO HAVE POSSESSION:
24. If Owner is unable to give possession of the demised premises on the date of
the commencement of the term hereof, because of the holding-over or retention of
possession of any tenant, undertenant or occupants or if the demised premises
are located in a building being constructed, because such building has not been
sufficiently completed to make the premises ready for occupancy or because of
the fact that a certificate of occupancy has not been procured or if Owner has
not completed any work required to be performed by Owner, or for any other
reason, Owner shall not be
subject to any liability for failure to give possession on said date and the
validity of the lease shall not be impaired under such circumstances, nor shall
the same be construed in any wise to extend the term of this lease, but the rent
payable hereunder shall be abated (provided Tenant is not responsible for
Owner's inability to obtain possession or complete any work required) until
after Owner shall have given Tenant notice that the premises are substantially
ready for Tenant's occupancy. If permission is given to Tenant to enter into the
possession of the demised premises or to occupy premises other than the demised
premises prior to the date specified as the commencement of the term of this
lease, Tenant covenants and agrees that such occupancy shall be deemed to be
under all the terms, covenants, conditions and provisions of this lease, except
as to the covenant to pay rent. The provisions of this article are intended to
constitute "an express provision to the contrary" within the meaning of Section
223-a of the New York Real Property Law.
NO WAIVER:
25. The failure of Owner to seek redress for violation of, or to insist upon the
strict performance of any covenant or condition of this lease or of any of the
Rules or Regulations, set forth or hereafter adopted by Owner, shall not prevent
a subsequent act which would have originally constituted a violation from having
all the force and effect of an original violation. The receipt by Owner of rent
with knowledge of the breach of any covenant of this lease shall not be deemed a
waiver of such breach and no provision of this lease shall be deemed to have
been waived by Owner unless such waiver be in writing signed by Owner. No
payment by Tenant or receipt by Owner of a lesser amount than the monthly rent
herein stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement of any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Owner may accept such check or payment without prejudice to
Owner's right to recover the balance of such rent or pursue any other remedy in
this lease provided. All checks tendered to Owner as and for the rent of the
demised premises shall be deemed payments for the account of Tenant. Acceptance
by Owner of rent from anyone other than Tenant shall not be deemed to operate as
an attornment to the Owner by the payor of such rent or as a consent by Owner to
an assignment or subletting by Tenant of the demised premises to such payor, or
as a modification of the provisions of this lease. No act or thing done by Owner
or Owner's agents during the term hereby demised shall be deemed an acceptance
of a surrender of said premises and no agreement to accept such surrender shall
be valid unless in writing signed by Owner. No employee of Owner or Owner's
agent shall have any power to accept the keys of said premises prior to the
termination of the lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of the premises.
WAIVER OF TRIAL BY JURY:
26. It is mutually agreed by and between Owner and Tenant that the respective
parties hereto shall and they hereby do waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other (except for personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with this lease, the relationship of
Owner and Tenant, Tenant's use of or occupancy of said premises, and any
emergency statutory or any other statutory remedy. It is further mutually agreed
that in the event Owner commences any summary proceeding for possession of the
premises, Tenant will not interpose any counterclaim of whatever nature or
description in any such proceeding except, however, for any such counterclaims
that Tenant, by law, is compelled to interpose at such time.
INABILITY TO PERFORM:
27. This Lease and the obligation of Tenant to pay rent hereunder and perform
all of the other covenants and agreements hereunder on part of Tenant to be
performed shall in no wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under this lease or to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Owner is prevented or delayed from so doing by reason of strike or
labor troubles or any cause whatsoever beyond Owner's sole control including,
but not limited to, government preemption in connection with a National
Emergency or by reason of any rule, order or regulation of any department or
subdivision thereof of any government agency or by reason of the conditions of
supply and demand which have been or are affected by war or other emergency. The
provisions of this Article 27 shall be mutually applicable to both Landlord and
Tenant, except, however, the provisions of this Article 27 shall not apply in
situations regarding the payment of funds by one party to the other.
BILLS AND NOTICES:
28. Except as otherwise in this lease provided, a xxxx, statement, notice or
communication which Owner may desire or be required to give to Tenant, shall be
deemed sufficiently given or rendered if, in writing, delivered to Tenant
personally or sent by registered or certified mail or by nationally recognized
overnight courier service, next business day service, addressed to Tenant at the
address provided in paragraph A-1.12(b) hereof, and the time of the rendition of
such xxxx or statement and of the giving of such notice or communication shall
be deemed to be the time when the same is delivered to Tenant, mailed, or left
at the premises as herein provided. Any notice by Tenant to Owner must be served
by registered or certified mail addressed to Owner at the address first
hereinabove given or at such other address as Owner shall designate by written
notice.
WATER CHARGES:
29. If Tenant requires, uses or consumes water for any purpose in addition to
ordinary lavatory purposes (of which fact Tenant constitutes Owner to be the
sole judge) Owner may install a water meter and thereby measure Tenant's water
consumption for all purposes. Tenant shall pay Owner for the cost of the meter
and the cost of the installation, thereof and throughout the duration of
Tenant's occupancy Tenant shall keep said meter and installation equipment in
good working order and repair at Tenant's own cost and expense in default of
which Owner may cause such meter and equipment to be replaced or repaired and
collect the cost thereof from Tenant, as additional rent. Tenant agrees to pay
for water consumed, as shown on said meter as and when bills are rendered, and
on default in making such payment Owner may pay such charges and collect the
same from Tenant, as additional rent. Tenant covenants and agrees to pay, as
additional rent, the sewer rent, charge or any other tax, rent, levy or charge
which now or hereafter is assessed, imposed or a lien upon the demised premises
or the realty of which they are part pursuant to law, order or regulation made
or issued in connection with the use, consumption, maintenance or supply of
water, water system or sewage or sewage connection or system. Independently of
and in addition to any of the remedies reserved to Owner hereinabove or
elsewhere in this lease, Owner may xxx for and collect any monies to be paid by
Tenant or paid by Owner for any of the reasons or purposes hereinabove set
forth.
SPRINKLERS:
30. Anything elsewhere in this lease to the contrary notwithstanding, if the New
York Board of Fire Underwriters or the New York Fire Insurance Exchange or any
bureau, department or official of the federal, state or city government
recommend or require the installation of a sprinkler system or that any changes,
modifications, alterations, or additional sprinkler heads or other equipment be
made or supplied in an existing sprinkler system by reason of Tenant's business,
or the location of partitions, trade fixtures, or other contents of the demised
premises, or for any other reason, or if any such sprinkler system
installations, modifications, alterations, additional sprinkler heads or other
such equipment, become necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system in the fire insurance
rate set by any said Exchange or by any fire insurance company, Tenant shall, at
Tenant's expense, promptly make such sprinkler system installations, changes,
modifications, alterations, and supply additional sprinkler heads or other
equipment as required whether the work involved shall be structural or
non-structural in nature. Tenant shall pay to Owner as additional rent the sum
of 100%, on the first day of each month during the term of this lease, as
Tenant's portion of the contract price for sprinkler supervisory service.
ELEVATORS, HEAT, CLEANING:
31. Tenant shall, at Tenant's expense, keep the demised premises, including the
windows, clean and in order, to the satisfaction of Owner. Tenant shall pay to
Owner the cost of removal of any of Tenant's refuse and rubbish from the
building. Bills for the same shall be rendered by Owner to Tenant at such time
as Owner may elect and shall be due and payable hereunder, and the amount of
such bills shall be deemed to be, and be paid as, additional rent. Tenant shall,
however, have the opinion of independently contracting for the removal of such
rubbish and refuse in the event that Tenant does not wish to have same done by
employees of Owner. Under such circumstances, however, the removal of such
refuse and rubbish by others shall be subject to such rules and regulations as,
in the judgment of Owner, are necessary for the proper operation of the
building. Owner reserves the right to stop service of the heating, plumbing and
electric systems, when necessary, by reason of accident, or emergency, or for
repairs, alterations, replacements or improvements, in the judgment of Owner
desirable or necessary to be made, until said repairs, alterations, replacements
or improvements shall have been completed.
SECURITY:
32. Tenant has deposited with Owner, the sum of $37,536.10 as security for the
faithful performance and observance by Tenant of the terms, provisions and
conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent or any other sum as to
which [T]enant is in default or for any sum which Owner may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this lease, including but not limited to, any
damages or deficiency in the re-letting of the premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Owner. In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this lease, the security
shall be returned to Tenant after the date fixed as the end of the Lease and
after delivery of entire possession of the demised premises to Owner. In the
event of a sale of the land and building or leasing of the building, of which
the demised premises form a part, Owner shall have the right to transfer the
security to the vendee or lessee and Owner shall thereupon be released by Tenant
from all liability for the return of such security; and Tenant agrees to look to
the new Owner solely for the return of said security, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Owner. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security and that neither Owner nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
CAPTIONS:
33. The Captions are inserted only as a matter of convenience and for reference
and in no way define, limit or describe the scope of this lease nor the intent
of any provision thereof.
DEFINITIONS:
34. The term "Owner" as used in this lease mans only the owner of the fee or of
the leasehold of the building, or the mortgagee in possession, for the time
being of the land and building (or the owner of a lease of the building or of
the land and building) of which the demised premises form a part, so that in the
event of any sale or sales of said land and building or of said lease, or in the
event of a lease of said building, or of the land and building, the said Owner
shall be and hereby is entirely freed and relieved of all covenants and
obligations of Owner hereunder, and it shall be deemed and construed without
further agreement between the parties or their successors in interest, or
between the parties and the purchaser, at any such sale, or the said lessee of
the building, or of the land and building, that the purchaser or the lessee of
the building has assumed and agreed to carry out any and all covenants and
obligations of Owner hereunder. The words "re-enter" and "re-entry" as used in
this lease are not restricted to their technical legal meaning. The term "rent"
includes the annual rental rate whether so-expressed or expressed in monthly
installments, and "additional rent." "Additional rent" means all sums which
shall be due to new Owner from Tenant under this lease, in addition to the
annual rental rate. The term "business days" as used in this lease, shall
exclude Saturdays (except such portion thereof as is covered by specific hours
in Article 31 hereof), Sundays and all days observed by the State or Federal
Government as legal holidays and those designated as holidays by the applicable
building service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service.
ADJACENT EXCAVATION -- SHORING:
35. If an excavation shall be made upon land adjacent to the demised premises,
or shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as said person shall deem necessary to
preserve the wall or the building of which demised premises form a part from
injury or damage and to support the same by proper foundations without any claim
for damages or indemnity against Owner, or diminution or abatement of rent.
RULES AND REGULATIONS:
36. Tenant and Tenant's servants, employees, agents, visitors, and licensees
shall observe faithfully, and comply strictly with, the Rules and Regulations
annexed hereto.
GLASS:
37. Tenant shall replace, at the expense of the Tenant, any and all plate and
other glass damaged or broken from any cause whatsoever in and about the demised
premises. Tenant shall insure, and keep insured, at Tenant's expense, all plate
and other glass in the demised premises.
ESTOPPEL CERTIFICATE:
38. Tenant, at any time, and from time to time, upon at least 10 business days
prior written notice by Owner, shall execute, acknowledge and deliver to Owner,
and/or to any other person, firm or corporation specified by Owner, a statement
certifying that this Lease is unmodified in full force and effect (or, if there
have been modifications, that the same is in full force and effect as modified
and stating the modifications), stating the dates to which the rent and
additional rent have been paid, and stating whether or not there exists any
default by Owner under this Lease, and, if so, specifying each such default.
DIRECTORY BOARD LISTING:
39. If, at the request of and as accommodation to Tenant, Owner shall place upon
the directory board in the lobby of the building, one or more names of persons
other than Tenant, such directory board listing shall not be construed as the
consent by Owner to an assignment or subletting by Tenant to such person or
persons.
SUCCESSORS AND ASSIGNS:
40. The covenants, conditions and agreements contained in this lease shall bind
and inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns.
SEE RIDERS ANNEXED HERETO CONTAINING ADDITIONAL LEASE PARAGRAPHS.
In Witness Whereof, Owner and Tenant have respectively signed and sealed
this lease as of the day and year first above written.
XXXXXX HOLDING COMPANY
BY: XXXXXX HOLDING GENERAL CORP.
Witness for Owner: BY: /s/Xxxxx Xxxxxxx
------------------
Xxxxx Xxxxxxx, President
/s/ Xxxxx Xxxxxxxx
ENDO PHARMACEUTICALS INC.
Witness for Owner: BY: /s/ Xxxxxxx X. XxxXxxxxx
------------------------
Executive Vice President, Operations
/s/ Xxxxx X. Xxxxxxx
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN ACCORDANCE
WITH ARTICLE 36.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or
encumbered by any Tenant or used for any purpose other than for ingress or
egress from the demised premises and for delivery of merchandise and
equipment in a prompt and efficient manner using elevators and passageways
designated for such delivery by Owner. There shall not be used in any
space, or in the public hall of the building, either by any Tenant or by
jobbers or others in the delivery or receipt of merchandise, any hand
trucks, except those equipped with rubber tires and sideguards. If said
premises are situated on the ground floor of the building, Tenant thereof
shall further, at Tenant's expense, keep the sidewalk and curb in front of
said premises clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for any
purposes other than those for which they were designed or constructed and
no sweepings, rubbish, rags, acids or other substances shall be deposited
therein, and the expense of any breakage, stoppage, or damage resulting
from the violation of this rule shall be borne by the Tenant who, or whose
clerks, agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any window
of the building; and no Tenant shall sweep or throw or permit to be swept
or thrown from the demised premises any dirt or other substances into any
of the corridors or halls, elevators, or out of the doors or windows or
stairways of the building, or permit or suffer the demised premises to be
occupied or used in a manner offensive or objectionable to Owner or other
occupants of the buildings by reason of noise, odors, and or vibrations,
or interfere in any way, with other Tenants or those having business
therein, nor shall any animals or birds be kept in or about the building.
Smoking or carrying lighted cigars or cigarettes in the elevators of the
building is prohibited.
4. No awnings or other projections shall be attached to the outside walls of
the building without the prior written consent of Owner.
5. [Intentionally Omitted.]
6. [Intentionally Omitted.]
7. [Intentionally Omitted.]
8. Freight, furniture, business equipment, merchandise and bulky matter of
any description shall be delivered to and removed from the premises only
on the freight elevators and through the service entrances and corridors.
9. [Intentionally Omitted.]
10. [Intentionally Omitted.]
11. Owner shall have the right to prohibit any advertising by any Tenant which
in Owner's opinion, tends to impair the reputation of the building or its
desirability as a loft building, and upon written notice from Owner,
Tenant shall refrain from or discontinue such advertising.
12. [Intentionally Omitted.]
13. [Intentionally Omitted.]
RIDER A
Provisions Of General Application
Tenant I.D.# 004-065-0177-0005
ARTICLE A-1. DEFINITIONS
The following terms placed within quotations are used throughout this
Lease with the respective definitions set forth below:
A-1.01 Intentionally Omitted.
A-1.02 "Building" shall mean any building of which the Premises known as
000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx are a part or which is included in
its entirety in the Premises.
A-1.03 "Daily Late Charge" shall mean the daily sum of $25.00 and
increased annually at the same percentage increase as Minimum Rent shall
increase.
A-1.04 "Minimum Rent", "Fixed Rent", or "Fixed Minimum Rent" shall mean
the annual rent specified in the preamble to this Lease, as increased in
accordance with Article B-1.
A-1.05 "Landlord", "Owner" and "Lessor" are used inter-changeably in this
Lease and shall all have the meaning given "Owner" in the printed form portion
of this Lease.
A-1.06 Intentionally Omitted.
A-1.07 (a) "Minimum Insurance Coverage" shall mean the limits designated
below for the corresponding types of insurance:
Insurance Limit (All limits specified herein are subject to change
by Landlord if the underlying limit of Landlord's
blanket policy shall increase.)
General Liability $2,000,000.00 annual aggregate, $1,000,000.00 per
occurrence, written on an industry standard form
and a $5,000,000 Umbrella per occurrence and
aggregate.
Contents Full Replacement Value Coverage
(b) "Monthly Insurance Payment" shall mean the monthly sum of
$513.08, or such increased or decreased amount which shall result from any
recomputation thereof under Section A-5.02.
A-1.08 "Monthly Tax Payment" shall mean the monthly sum of $5,455.22, or
such increased or decreased amount which shall result from any recomputation
thereof under Section A-4.02.
A-1.09 "Monthly Water Charge" shall mean the monthly sum as reported by
the quarterly bills under Section C-2.02.
A-1.10 "Premises" and "Demised Premises" are used inter- changeably in
this Lease and mean the property leased to Tenant as described in the preamble
to this Lease.
A-1.11 "Property" shall mean the entire real estate of which the Premises
are a part, including, without limitation, all land, buildings, parking
facilities (existing or hereafter acquired, whether or not the same are
contiguous to the Building) and the Premises.
A-1.12 (a) "Principals of Tenant" shall mean all persons and/or entities
who own, directly or indirectly, ten percent or more of the beneficial ownership
of Tenant, whose names, titles, addresses and home telephone numbers are set
forth below:
Business
Name and Title Address Telephone
-------------- ------- ---------
Xx. Xxxxxxxx X. Xxxxxxx c/o Endo Pharmaceuticals 610-558-9800
Sr. Vice President Holding, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
(b) Tenant designates the following individual(s) as the person(s)
to whom all notices, communications and correspondence pertaining to this Lease
should be directed:
Business
Name and Title Home Address Telephone
-------------- ------------ ---------
Xx Xxxxxxxx X. Xxxxxxx c/o Endo Pharmaceuticals 610-558-9800
Sr. Vice President Holding, Inc.
000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Landlord, shall direct any notice to Tenant under this Lease to the
address and to the attention of the individual named in this Section A-1.12. If
more than one individual is enumerated above, Landlord's service of notice upon
any one or more of them shall satisfy Landlord's notice obligations under this
Lease.
A-1.13 "Rent" shall mean all amounts payable by Tenant under this Lease,
including, without limitation, all Minimum Rent, real estate tax payments,
insurance payments and utility, maintenance and late charges.
A-1.14 "Rent Commencement Date" shall mean 30 days after delivery of
possession of the Premises to the Tenant. In the event the Rent Commencement
Date is other than the first day of a calendar month, then the Rent for the
partial calendar month at the beginning of the Term shall be prorated and paid
on the Rent Commencement Date.
A-1.15 "Rentable Square Footage" shall mean approximately 24,190 square
feet, and is subject to adjustment by Landlord.
A-1.16 "Taxes" shall mean any and all taxes, assessments, sewer and water
rents, rates and charges, license fees, impositions, liens, fees, interest,
penalties and all other municipal and governmental charges of any nature
whatsoever (except only inheritance and estate taxes and income taxes), whether
general or special, ordinary or extraordinary, foreseen or unforeseen, which may
presently or in the future become due or payable or which may be levied,
assessed or imposed by any taxing authority on or with respect to all or any
part of the Property, or upon the estate or interest of Landlord in the Property
or any part thereof, including, without limitation, all taxes and assessments
for improving any streets, alleys, sidewalks, sidewalk vaults and alley vaults,
if any.
A-1.17 "Tenant" and "Lessee" are used interchangeably in this Lease and
shall be deemed to mean the person or entity described in the preamble to this
Lease as having leased the Premises from Landlord, and any permitted successor
to Tenant's interest hereunder.
A-1.18 "Tenant's Proportionate Share" shall mean 100 percent.
A-1.19 Tenant's federal taxpayer identification number is 00-0000000.
A-1.20 "Term" shall mean the period for which Tenant shall have leased the
Premises from Landlord hereunder as stated in the preamble to this Lease.
ARTICLE A-2. RENT
A-2.01 Tenant's obligation to pay the Minimum Rent shall begin on the Rent
Commencement Date. All other items of Rent, including the Monthly Water Charge,
the Monthly Tax Payment and the Monthly Insurance Payment, shall commence on the
delivery of possession of the Premises to Tenant. Tenant acknowledges delivery
of possession by its acceptance of keys from Landlord.
Landlord may apply any payment by Tenant of Rent hereunder against any
item(s), or portion(s) thereof, of Rent then remaining unpaid and any
designation by Tenant as to the application of amounts paid by Tenant under this
Lease shall not bind Landlord in any manner whatsoever.
A-2.02 If Tenant shall fail to pay Rent, in whole or in part, on or before
the fifth day of any month during which the same shall become due, Tenant shall
pay Landlord late charges computed by multiplying the Daily Late Charge by the
number of days from the first day of such month through the date on which Tenant
pays such Rent in full. Tenant shall become liable for the payment of separate
late charges for each amount of Rent which remains unpaid. All late charges
shall be deemed Rent and be payable by Tenant as they accrue, and Landlord shall
have all rights with respect to the non-payment of late charges as Landlord has
with respect to the non-payment of all other Rent due hereunder. Landlord's
demand for and collection of late charges shall not be deemed a waiver of any
remedies that Landlord may have under this Lease by summary proceedings or
otherwise. Rent shall be deemed received (a) when delivered to Landlord, if
Tenant's representative shall personally deliver the same to Landlord's office,
or (b) on the date of the official U. S. Postal Service postmark stamped on the
envelope in which the Rent is enclosed, if Tenant shall mail the same to
Landlord.
A-2.03 If Tenant shall fail to vacate and surrender the Premises on the
last day of the Term, Tenant, at Landlord's option, shall be deemed a
month-to-month tenant and shall pay Landlord monthly rent at a rate equal to
200% of the Rent payable during the last month of the Term, subject to all of
the other terms of this Lease insofar as they apply to a month-to-month tenancy.
The application of this Section shall under no circumstances be deemed to
establish a month-to-month or other form of tenancy in favor of Tenant.
A-2.04 If Landlord shall institute summary proceedings for the non-payment
of Rent and/or a holdover proceeding, Tenant shall pay Landlord's attorneys'
fees to the extent Landlord is ultimately successful in such proceedings, as so
determined by the judge. Such fee shall be deemed Rent and Landlord, at its
option, may include such amount in said proceedings as an unpaid item.
A-2.05 Landlord's acceptance of Rent from any person or entity other than
Tenant shall not be deemed to establish a tenancy of any nature with such party
unless Landlord shall so elect in writing, nor shall the same relieve Tenant
from any of its obligations under this Lease.
ARTICLE A-3. INDEMNIFICATION
A-3.01 Tenant agrees to indemnify and hold harmless Landlord from and
against any loss, cost, liability and expense of any nature whatsoever,
including reasonable attorneys' fees and disbursements, which may arise in
connection with Tenant's failure to surrender the Premises upon the expiration
of the Term, including any claims by any succeeding tenant.
ARTICLE A-4. REAL ESTATE TAXES AND ASSESSMENTS
A-4.01 Tenant shall pay as Rent during each year of the Term in accordance
with Section 4.02 Tenant's Proportionate Share of all Taxes.
A-4.02 Tenant shall pay on the first day of each and every month during
the first year of the Term, in advance, the Monthly Tax Payment. If at the end
of the first lease year of the Term the total tax payments made by Tenant shall
be less than the actual Taxes payable hereunder by Tenant for said year, Tenant
shall pay the deficiency to Landlord upon demand. If such payments shall exceed
the said actual Taxes, the excess shall be credited toward the Monthly Tax
Payment next coming due. At the end of the first lease year of the Term,
Landlord shall recompute the Monthly Tax Payment required to be made by Tenant
during the second lease year of the term, said payments to be one-twelfth (l/l2)
of the total amount of the Taxes Tenant was required to pay during the first
lease year of the Term.
A like procedure shall be followed for each succeeding lease year.
Notwithstanding the foregoing, if at any time during any lease year Landlord
shall determine that the Monthly Tax Payment will be insufficient to pay the
Taxes as they come due, Landlord may, at its election, require Tenant to pay the
amount of the deficiency in one payment or increase the Monthly Tax Payment.
In lieu of Landlord requiring Tenant to pay Taxes in the manner
hereinabove set forth, Landlord may elect to require Tenant to pay Landlord
Taxes within thirty days after Landlord shall deliver to Tenant a demand
thereof. Each such notice shall be accompanied by a copy of the appropriate tax
xxxx.
A-4.03 Landlord's failure to deliver to Tenant a statement showing
Tenant's liability for additional Taxes for any year during the Term under
Section A-4.02 above shall neither prejudice nor waive Landlord's right to
deliver any such statement for any subsequent year or include in said statement
an amount of Rent due from Tenant for any increase in Taxes during a previous
year in which Landlord did not provide Tenant with any such statement. Landlord
shall present Tenant with a then current tax xxxx annually. Tenant's obligation
to pay Rent under Section A-4.02 with respect to the last year of the Term shall
survive the expiration of the Term.
A-4.04 Tenant shall in all events pay the full amount of any increases in
Taxes which may result from any improvements made by or on behalf of Tenant.
Taxes shall be apportioned at the commencement and expiration of the Term.
ARTICLE A-5. INSURANCE
A-5.01 Landlord shall obtain and maintain a blanket "all-risk" property
insurance policy ("Landlord's Policy") which covers the Property and
improvements owned from time to time by Landlord and all Rent due under all
lease agreements pertaining to such Property and improvements. Landlord's Policy
will provide protection against all risks and hazards, including, without
limitation, fire, vandalism, malicious mischief, sprinkler leakage, boilers and
machinery and extended coverage type perils and general liability, personal and
bodily injury and property damage. Landlord's Policy provides full replacement
coverage, as the same may determined from time to time. Landlord's property
insurance policy shall include a waiver of the insurer's right of subrogation
against Tenant.
Tenant shall pay as Rent in accordance with Section 5.02 Tenant's
Proportionate Share of the property premiums under Landlord's Policy. Landlord
shall use commercially reasonable efforts to obtain such insurance coverage at
rates comparable to those rates then being paid by landlords of comparable
properties in Nassau and Suffolk counties with comparable use and occupancy as
provided herein.
Tenant acknowledges that Landlord's Policy is solely the property of
Landlord, and that all rights and benefits thereunder shall accrue exclusively
to Landlord or its designee. Further, Tenant agrees that it acquires no rights
of any nature with respect to Landlord's Policy and the benefits and rights
thereunder, whether by virtue of any theory of constructive trust or otherwise.
A-5.02 (a) Tenant shall pay on the first day of each and every month
during the first year of the Term, in advance, the Monthly Insurance Payment. If
at the end of the first lease year of the Term the total of such insurance
payments made by Tenant shall be less than the total actual amount of insurance
payable under Article A-5 by Tenant for said year, Tenant shall pay the
deficiency to Landlord upon demand. If such payments shall exceed said total
actual amount of insurance, the excess shall be credited toward the Monthly
Insurance Payment next coming due. At the end of the first lease year of the
Term, Landlord shall recompute the Monthly Insurance Payment required to be made
by Tenant during the second lease year of the Term, said payments to be
one-twelfth (1/l2) of the total actual amount of property insurance premiums
which Tenant was required to pay under Article A-5 during the first lease year
of the Term. A like procedure shall be followed for each succeeding lease year.
Notwithstanding the foregoing, if at any time during any lease year Landlord
shall determine that the Monthly Insurance Payment will be insufficient to pay
Tenant's share of the property insurance premiums as they come due, Landlord
may, at its election, require Tenant to pay the amount of the deficiency in one
payment or increase the Monthly Insurance Payment. Insurance payments under this
Section shall be apportioned at the commencement and expiration of the Term.
(b) Landlord's failure to deliver to Tenant a statement showing Tenant's
liability for additional insurance premiums for any year during the Term under
Section A-5.02 shall neither prejudice nor waive Landlord's right to deliver any
such statement for any subsequent year or include in said statement an amount of
Rent due from Tenant for any increase in insurance premiums during a previous
year in which Landlord did not provide Tenant with any such statement. Upon
Tenant's prior written request, Landlord shall furnish Tenant with an annual
statement of Tenant's liability for additional insurance premiums. Tenant's
obligation to pay Rent under Section A-5.02 with respect to the last year of the
Term shall survive the expiration of the Term.
A-5.03 Tenant shall obtain and maintain in full force and effect during
the Term (a) General Liability Insurance on an occurrence basis written on a
Commercial General Liability Basis, including Premises/Operations,
Products/Completed Operations Liability, Legal Liability (with a sublimit of
$300,000), covering occurrences in or about the Premises, (b) a Plate Glass
Policy covering all plate glass in and about the Premises, if any, and (c)
insurance against loss of or damage to Tenant's property and fixtures on or
about the Premises by fire and such other risks and hazards as are insurable
under the latest available standard form of policy for "all-risk" property
insurance, providing full replacement value coverage. All such insurance shall
be written with limits not less than the Minimum Insurance Coverage or any
increased limits Landlord may from time to time reasonably require. All policies
shall be written as primary coverage, not contributing with, nor in excess of,
coverage that Landlord may carry.
A-5.04 (a) ON OR BEFORE THE DATE TENANT IS GIVEN KEYS TO THE PREMISES,
Tenant shall deliver to Landlord certificates for the insurance specified in
Section A-5.03, together with proof of payment of the premium for the same; all
certificates required to be delivered to Landlord under this Lease as provided
above and thereafter from time to time for the insurance specified in (a) and
(b) of Section A-5.03 shall name Landlord as an additional insured. There shall
not be any cancellations or revisions of such policies without Tenant giving
Landlord thirty (30) days prior written notice. Tenant shall renew or replace
the same and shall deliver to Landlord certificates for all such renewals and
replacements, at least thirty days before such policies, or any renewal or
replacement policies, expire. All such insurance shall be issued by insurance
companies having a Best's rating of at least A-/X and licensed to do business in
the State of New York and authorized to issue such policies. If Tenant shall
fail to procure, place and/or maintain any such insurance and/or pay any and all
premiums and charges therefor, Landlord, upon at least ten (10) business days'
prior written notice to Tenant, may (but shall not be obligated to) do so and in
such event Tenant shall pay the amount thereof, plus an administrative charge
equal to five percent of such amount, as Rent to Landlord on demand.
(b) ON OR BEFORE THE DATE TENANT IS GIVEN KEYS TO THE PREMISES, Landlord
shall deliver to Tenant certificates for the insurance specified in Section A --
5.01, together with proof of payment of the premium for the same; all
certificates required to be delivered to Tenant under this Lease as provided
above and thereafter from time to time for the insurance specified in Section A
-- 5.01 shall name Tenant as an additional insured. There shall not be any
cancellations or revisions of such policies without Landlord giving Tenant
thirty (30) days prior written notice. Landlord shall renew or replace the same
and shall deliver to Tenant certificates for all such renewals and replacements,
at least thirty
(30) days before such policies, or any renewal or replacement policies expire.
All such insurance shall be issued by insurance companies having a Best's rating
of at least A-/X and licensed to do business in the State of New York and
authorized to issue such policies. If Landlord shall fail to procure, place
and/or maintain any such insurance and/or pay any and all premiums and charges
therefor, Tenant, upon at least ten (10) business days' prior written notice to
Landlord, may (but shall not be obligated to) do so and in such event Landlord
shall pay the amount thereof, plus an administrative charge equal to five (5%)
percent of such amount to Tenant on demand.
A-5.05 Tenant shall have included in each policy of insurance it is
required to obtain and maintain under this Lease, a waiver of the insurer's
right of subrogation against Landlord for any property insurance.
A-5.06 INTENTIONALLY OMITTED.
A-5.07 INTENTIONALLY OMITTED.
A-5.08 In the event of any loss or damage, which directly affects
Landlord, in or about the Premises which constitutes a loss, damage, casualty or
other occurrence covered by insurance maintained by Tenant under this Lease or
Landlord under Section A-5.01, Tenant immediately shall give Landlord notice of
such loss or damage by certified mail, return receipt requested.
ARTICLE A-6. ALTERATIONS: REMOVAL BY TENANT
A-6.01 All alterations to the Premises of any nature whatsoever
("Alterations") are subject to Article 3 of this Lease and the following
requirements:
(a) Prior to the commencement of any Alterations, Tenant shall
submit to Landlord, for Landlord's written approval, plans and specifications
(to be prepared by and at the expense of Tenant) showing the proposed
Alterations in detail satisfactory to Landlord. Landlord shall review, and if
appropriate approve, any plans and specifications for alterations submitted by
Tenant within fifteen (15) business days of Landlord's receipt thereof. No
Alterations shall begin until Landlord shall have approved such plans and
specifications, in writing, and Tenant shall have delivered to Landlord
certificates for all insurance Tenant is required to maintain under this Lease
in connection with making Alterations. Anything contained herein to the contrary
notwithstanding, Landlord's approval shall not be required for any alteration
which does not affect the exterior or structural elements of the Building
(including the plumbing, electrical, mechanical or HVAC systems thereof),
provided the cost of any such alteration does not exceed $15,000. If the
alteration cost exceeds $15,000, Landlord's approval shall not be unreasonably
withheld. Nevertheless, plans and specifications for all Alterations, excluding
decorative alterations, shall be submitted to Landlord at least ten (10)
business days prior to Tenant's commencement of any Alteration. Tenant shall
make all approved Alterations at its own expense, in accordance with the plans
and specifications therefor approved by Landlord and then only by contractors
and mechanics approved by Landlord, which approval shall not be unreasonably
withheld. No amendments or additions shall be made to any plans and
specifications for Alterations approved by Landlord without Landlord's prior
written consent;
(b) The Alterations will not result in a violation of or require a
change in any certificate of occupancy covering the Premises or the Building;
(c) The character, outside appearance, usefulness and/or rentability
of the Premises or the Property or any part thereof, shall not be affected, and
such Alterations shall not, in the sole opinion of Landlord, weaken or impair
(temporarily or permanently) the structure or lessen the value of the Building,
either during the making of such Alterations or upon their completion;
(d) Other than landscaping and the installation of Tenant's
equipment between two loading dock ramps (subject to Landlord's approval, which
shall not be unreasonably withheld), no part of the Property other than the
Premises shall be physically affected. Without limiting the generality of the
foregoing, Tenant shall not, without Landlord's specific prior written consent,
cause to be made, constructed, erected, installed or otherwise placed through,
on or about the
exterior walls or the roof of the Building any holes, vents, windows, fans,
pipes, ducts, doors, machinery, equipment, appliances (including, without
limitation, air conditioning unit(s)), television or radio antenna or other
tangible objects of any nature whatsoever;
(e) The proper functioning of the Building's equipment, in the sole
opinion of Landlord, shall not be adversely affected;
(f) Upon completion of any Alterations (excluding mere decorations),
Tenant shall deliver to Landlord a copy of "as-built" plans for such
Alterations;
(g) Tenant shall not perform Alterations in any manner which for any
reason whatsoever would, in Landlord's reasonable opinion, interfere or conflict
with work being performed by contractors or laborers then engaged in the
Building or would in any way disturb the management, operation or maintenance of
the Building or any part thereof;
(h) No approval by Landlord of Alterations to be made by Tenant
shall in any way be deemed to be an agreement by Landlord that such Alterations
comply with applicable legal or insurance carrier requirements. Notice is hereby
given that Landlord shall not be liable for any labor or materials furnished to
Tenant, and that no mechanic's or other lien for such labor or materials shall
attach to or affect any interest of Landlord;
(i) Throughout the performance of Tenant's Alterations, Tenant, at
its expense, shall carry, or cause to be carried by Tenant's contractors and
subcontractors all insurance, including without limitation, that required by
Articles A-l.07 and A-5.03 of this Lease or as otherwise may be required by law.
Tenant shall furnish Landlord with copies of the insurance policies required
hereunder or certificates thereof that such insurance is in effect at or before
the commencement of Alterations and, on request, at reasonable intervals
thereafter during the continuance of Alterations;
(j) In connection with all work to be performed in and for the
Demised Premises, Tenant shall file all drawings, plans and specifications, pay
all fees and obtain all permits and applications from the Building Department,
the Department of Labor and any other authorities having jurisdiction; and
Tenant shall obtain a Certificate of Occupancy and all other approvals required
for Tenant to use and occupy the Demised Premises and to open for business to
the public. If Tenant shall delay in obtaining a Certificate of Occupancy for
the Demised Premises, Landlord, at Tenant's cost and expense, may attempt to
obtain such Certificate of Occupancy and Tenant shall cooperate with Landlord
(including the signing of any necessary forms or applications) in connection
with such efforts. Tenant shall reimburse Landlord, as additional rent, for any
costs incurred in obtaining such Certificate of Occupancy.
(k) Tenant shall submit its requirements for any and all Tenant work
to Landlord and Landlord shall submit a written proposal to Tenant to have
Landlord's agent or contractor perform the work at Tenant's cost as outlined.
Tenant may obtain proposals from other contractors. Any work that Tenant
authorizes the Landlord or Landlord's agent to perform will be at the sole cost
and expense of the Tenant.
A-6.02 Pursuant to Article 3 of this Lease, Landlord hereby elects to
require Tenant to remove its installations and fixtures, in their entirety, in
the Premises prior to the expiration of this Lease, at Tenant's sole expense.
The foregoing election is not irrevocable. Landlord reserves the right at any
time and from time to time by notice to Tenant to void the same and assume the
ownership of Tenant's installations and fixtures (excluding any Tenant
equipment, laboratory or otherwise, and Tenant's furniture, all of which shall
be removed by Tenant upon the expiration or sooner termination of the term of
this Lease, and Tenant shall repair any damage to the Property caused by such
removal) in accordance with Article 3 hereof, or reinstitute said election. Any
election made hereunder by Landlord shall apply to particular systems installed
by Tenant in their entirety and not as to individual components of any such
systems.
ARTICLE A-7. ACCEPTANCE AND OCCUPANCY OF THE PREMISES
A-7.01 Landlord makes no representations as to the condition of the
Premises. Tenant represents that it has inspected the Premises and agrees to
accept the same "as is" except for the substantial completion of Landlord's
Work.
A-7.02 The taking of occupancy of the whole or any part of the Premises by
Tenant shall be conclusive evidence, as against Tenant, that Tenant accepts
possession of the same and that the Premises so occupied and the Property were
in good and satisfactory condition at the time such occupancy was so taken and
that the Premises were substantially as shown on Exhibit A, if any.
A-7.03 Landlord shall not be required to provide Tenant with possession of
or keys to the Premises until Tenant shall have delivered to Landlord
certificates of insurance as required under Section A-5.03 of this Lease.
Landlord's refusal to grant Tenant occupancy of the Premises in accordance with
the foregoing shall not be a defense of Tenant against its obligation to pay
Rent.
ARTICLE A-8. SECURITY DEPOSIT
A-8.01 Landlord shall deposit all security under this Lease in an interest
bearing account. All interest earned on the security hereunder (less Landlord's
administration fee under Section A-8.02) shall be added to the then existing
security and constitute additional security and be disposed of in the manner set
forth in the Article of this Lease captioned "Security". Tenant's rights under
this Lease to its security deposit may not be assigned, transferred, pledged,
mortgaged or otherwise encumbered by Tenant, and any attempt by Tenant to do so
shall be void and of no effect.
A-8.02 Landlord shall retain an annual administration fee with respect to
the security under this lease equal to one (l%) per cent per annum upon the
security money so deposited. If the annual administration fee payable to
Landlord hereunder at any time exceeds the amount permissible under applicable
laws or if the fee is less then the amount permissible under applicable law,
then such fee shall be the amount legally prescribed.
A-8.03 If at any time or times during the Term the amount of security
(excluding any portion thereof which shall be accrued interest) then held by
Landlord shall be less than two months' installments of Minimum Rent, Taxes and,
if Tenant is required to pay insurance in monthly installments, insurance, all
at the then current rates hereunder, whether due to an increase in Rent or
Landlord's application of all or part of the security in accordance with this
Lease, Tenant shall deposit with Landlord an additional sum so that the security
on deposit with Landlord shall then equal such two months' installments in the
aggregate.
Tenant shall make such payment no later than the payment due date of any
increase in Rent, or, in the case of Landlord's application of security as
aforesaid, within thirty (30) days after Landlord's demand. Landlord shall have
the same rights and remedies in the event of Tenant's failure to deposit with
Landlord any security required under this Lease as Landlord has with respect to
the non-payment of any other items of Rent.
A-8.04 Intentionally Omitted
A-8.05 At no time shall security, or any part thereof, be permitted to be
used by Tenant toward the payment of its Rent or other obligations under this
Lease.
ARTICLE A-9. BROKERAGE
A-9.01 Landlord and Tenant each represent to the other that it had no
dealings or negotiations of any nature with any broker or agent other than
Spiegel Associates and Insigna/ESG, Inc. ("Broker") in connection with the
negotiation and /or consummation of this Lease. Landlord agrees to pay the
commission due Broker in accordance with a separate agreement, and Tenant agrees
to indemnify Landlord against all claims, liabilities and expenses (including,
without limitation, reasonable attorney's fees and disbursements) arising out of
any inaccuracy or alleged inaccuracy of Tenant's representation above. Further
if Tenant vacates or is evicted from the Premises or otherwise ceases doing
business in the Premises prior to the expiration of the full Term, so long as
the same is not due to any material default by Landlord under this Lease, Tenant
shall reimburse Landlord for that portion of the aforementioned brokerage
commission which shall be
allocable to the unexpired portion of the Term. Such amount shall be computed in
the same manner as was the commission, including, without limitation, if
applicable, the use of different percentage rates for various periods during the
Term.
ARTICLE A-10. INTENTIONALLY OMITTED
ARTICLE A-11. NOXIOUS ODORS, NOISE, ETC.
A-11.01 Tenant shall not permit any unusual, excessive or noxious noise,
vibration, odor or other annoying condition to emanate from the Premises. Within
thirty days of Landlord's notice to Tenant, Tenant shall install or institute,
at its sole cost and expense, control devices or procedures to eliminate such
condition(s). Tenant's failure to install such control devices or procedures
within such thirty day period shall be deemed a material default of a
substantial obligation of Tenant.
ARTICLE A-12. EASEMENTS; RESERVATION OF RIGHTS
A-12.01 Landlord reserves the right to create and grant on or about the
Premises utility easements in the form required by any utility company, whether
public or private, in order to furnish utility services to the Premises or to
any other premises.
A-12.02 Unless the Premises constitute the entire Building, Landlord
reserves the right to place in, under, over or through the Premises pipes,
wires, lines and facilities serving other areas of the Property, provided that
Landlord shall only do so in a manner which does not unreasonably interfere with
Tenant's conduct of its business in the Premises.
ARTICLE A-13. NON-LIABILITY AND INDEMNIFICATION
A-13.01 Neither Landlord nor Landlord's principals, officers, directors,
agents or employees (individually and collectively, the "Landlord Group") shall
be liable to Tenant, its principals, officers, directors, agents or employees
(individually and collectively, the "Tenant Group"), and Tenant shall save the
Landlord Group harmless from any loss, liability, claim and/or expense
(including, without limitation, reasonable attorneys' fees and disbursements)
arising from or in connection with any injury to the Tenant Group, its
contractors, licensees or invitees, any interruption of Tenant's business, or
for damage to, or loss (by theft or otherwise) of, any property and/or fixtures
of every kind, regardless of the cause thereof, unless the same shall be
proximately caused by the negligence of Landlord for which Landlord is legally
liable. Notwithstanding the foregoing, (a) Tenant immediately shall notify
Landlord of any claim against Landlord, (b) the Landlord Group shall not be
liable for any loss, damage or expense whatsoever to the extent of Tenant's
insurance coverage therefor and (c) Tenant shall first seek reimbursement for
any such loss, damage or expense against its insurance carrier.
A-13.02 Tenant indemnifies and shall hold harmless the Landlord Group from
and against any and all loss, liability, claim and/or expense (including,
without limitation, reasonable attorneys' fees and disbursements) in connection
with or arising from (a) any default by Tenant under this Lease, (b) Tenant's
use or occupancy of the Premises and/or any acts, omissions or the negligence of
the Tenant Group in or about the Premises, including, without limitation,
sidewalks, if any, adjoining the Premises. Tenant shall pay to Landlord as Rent
an amount equal to all such losses, liabilities, claims and expenses within
thirty days after Landlord's rendition to Tenant of bills or statements
therefor.
A-13.03 If Tenant's use of the Premises shall be enjoined or prohibited,
provided the same shall not have resulted from any act or omission by or on
behalf of Tenant or use of the Premises in any manner other than as is permitted
under this Lease, Tenant shall have the right to elect to terminate this Lease
upon written notice to Landlord setting forth the date of termination, and such
right shall be Tenant's sole available remedy against Landlord in connection
therewith.
A-13.04 Notwithstanding anything in this Lease to the contrary, the
Landlord Group shall have no personal liability under or with respect to this
Lease and the liability of the Landlord Group in connection with this Lease is
limited solely to Landlord's equity interest in the Property. Under no
circumstances whatsoever shall either party hereto be liable to the other in
connection with this Lease for consequential or special damages.
ARTICLE A-14. CORPORATE TENANT AND PARTNERSHIP TENANT
A-14.01 If Tenant is a corporation, as a condition to the making of this
Lease, Tenant shall within twenty days from the date of execution of this Lease
deliver to Landlord a duly authorized resolution of the Board of Directors of
Tenant, in form reasonably satisfactory to Landlord, ratifying and approving the
terms and provisions of this Lease. Tenant represents that the power to vote its
entire outstanding capital stock is vested in the officer(s) executing this
Lease.
If there shall occur without Landlord's prior written consent, whether by
operation of law or otherwise (including, without limitation, merger,
consolidation and dissolution), any (a) transfer of Tenant's interest in this
Lease, (b) if Tenant is a corporation, change in the ownership of and/or power
to vote a majority of the outstanding capital stock of Tenant or (c) if Tenant
is a partnership or other association, any change in the beneficial ownership of
and/or power to control a majority in interest of Tenant, then Landlord may
terminate this Lease upon thirty days' notice to Tenant.
ARTICLE A-15. RENT CONTROL
A-15.01 If at the commencement of, or at any time(s) during the term of
this Lease, the Rent shall not be fully collectible by reason of any Federal,
State, County or local law, proclamation, order or regulation, or direction of a
public officer or body pursuant to law, Tenant shall enter into such
agreement(s), and take such other lawful steps (without additional expense to
Tenant), as Landlord may request to permit Landlord to collect the maximum rents
which may from time to time during the continuance of such legal rent
restriction be legally permissible (but not in excess of the amounts reserved
therefor under this Lease). Upon the termination of such legal rent restriction
prior to the expiration of the term of this Lease, (a) the Rent shall become and
thereafter be payable hereunder in accordance with the amounts reserved in this
Lease for the periods following such termination and (b) Tenant shall pay to
Landlord, if legally permissible, an amount equal to (i) the Rent which would
have been paid pursuant to this lease but for such legal rent restriction less
(ii) the Rent paid by Tenant to Landlord during the period(s) such legal rent
restriction was in effect.
ARTICLE A-16. TENANT DEFAULTS
A-16.01 Tenant agrees that in the event that Landlord shall commence a
Summary Proceeding for non-payment of Rent to be paid by Tenant pursuant to the
terms of this Lease, Tenant will not interpose any counterclaim (except,
however, for any such counterclaims that, by law, Tenant is compelled to
interpose at such time), or set-off of any nature whatsoever. If Tenant shall be
evicted from or vacate the Premises or this Lease shall be terminated prior to
its expiration as a result of Tenant's failure to perform any obligation
hereunder, without limiting Landlord's other remedies under this Lease or at
law, (a) if Landlord shall relet the Premises, Tenant shall remain liable for
any deficiency in Rent which Landlord does not receive from the succeeding
tenant and shall not be entitled to any excess Rent which Landlord may receive
from such tenant, except, however, any such excess rent received by Landlord for
any period which corresponds with the balance of the term of this Lease
occurring after Tenant's eviction or termination of this Lease, shall be applied
toward Landlord's costs and expenses provided herein, (b) Tenant shall reimburse
Landlord as Rent for the cost of preparing the Premises for Tenant's occupancy,
including, without limitation, Landlord's Work, if any, and all carpentry,
electrical, HVAC, plumbing and painting work, (c) Tenant shall pay to Landlord,
on a pro-rata basis, the amount of any rent concession under this Lease,
including, without limitation, the Rent, if any, which Tenant was not required
to pay at the commencement of the Term, and (d) Tenant shall pay to Landlord all
marketing costs and brokerage fees.
A-16.02 If Tenant shall default in the performance of any covenant, term
or provision of this Lease, Landlord, without thereby waiving such default, may
perform the same for the account and at the expense of Tenant, without notice in
a case of emergency or if Landlord may be subject to any civil or criminal
liability, and in any other case if such default shall continue for ten days
after the date Landlord shall have given written notice to Tenant of its
intention to do so. Landlord shall furnish Tenant with a xxxx for any reasonable
costs and expenses Landlord may incur in so performing for Tenant's account, and
Tenant shall pay as Rent the amount shown on each such xxxx within thirty days
after the same is sent by Landlord to Tenant.
A-16.03 Landlord's acceptance of a check, draft or any other instrument
from Tenant in the payment of Rent is solely a consideration to Tenant. If (a)
any check delivered to Landlord in payment of Rent hereunder shall be returned
to Landlord for any reason whatsoever, including, without limitation,
insufficient or deposited but uncollected funds, or (b) Landlord commences
summary proceedings against Tenant for the non-payment of Rent or otherwise
institutes any proceedings against Tenant as a result of Tenant's default
hereunder, or (c) Tenant pays Rent after the tenth day of any month, Landlord
may require Tenant to pay Rent by cash or bank certified check only.
A-16.04 (a) Notwithstanding any provision(s) in this Lease to the
contrary, the parties acknowledge and agree that (i) the Premises are demised
under this Lease for a minimum aggregate Rent (subject to such increases and
other costs as provided throughout this Lease) of $2,539,122.46 for the entire
Term, (ii) the terms of this Lease which provide for the payment of Rent in
installments are solely for the convenience of Tenant, and (iii) upon the
default in the payment of Rent in installments as aforesaid, then Tenant shall
be liable to Landlord for, and the following shall immediately become due and
payable without notice or demand: (1) all Rent actually due to Landlord and in
arrears at such time, and (2) the aggregate Rent reserved for the entire Term
then remaining unpaid discounted to present value to four percent (4%) below the
then existing prime rate as reported by The Wall Street Journal.
(b) Unless otherwise agreed to by the parties hereto, in writing, if
Tenant shall default (i) in the timely payment of Rent and such default shall
continue or be repeated for three consecutive months or for a total of four
months in any period of twelve months, or (ii) in the performance of any
particular term, condition or covenant of this Lease more than six times in any
period of six months, then, notwithstanding that such defaults shall have each
been cured within the applicable grace periods under this Lease, if any, any
further similar default shall be deemed to be deliberate and Landlord thereafter
may terminate this Lease on ten days written notice to Tenant, without affording
Tenant an opportunity to cure such further default.
A-16.05 Landlord and Tenant hereby acknowledge and agree that Landlord or
any other landlord whose property is managed by Spiegel Associates, previously
may have entered, or may hereafter enter, into another lease or leases with
Tenant (any such lease being referred to as an "Other Lease"). Notwithstanding
any provision in this Lease or in any Other Lease, Landlord and Tenant stipulate
and agree that any default hereunder shall likewise constitute a default by
Tenant under any Other Lease and that a default by Tenant under any Other Lease
shall constitute a default hereunder. While there presently may be no Other
Lease, Landlord and Tenant agree that it is reasonably foreseeable, and they
contemplate, that in the ordinary course of their business they may hereafter
enter into an Other Lease and that Landlord would not enter into this Lease (or
any Other Lease) but for the agreement set forth in the preceding sentence.
A-16.06 Landlord may restrain any breach or threatened breach by Tenant of
any covenant or obligation of Tenant under this Lease without the necessity of
proving the inadequacy of any legal remedy of irreparable harm. The remedies of
Landlord under this Lease shall be deemed cumulative and none of such remedies,
whether exercised or not, shall be deemed to be to the exclusion of any other.
ARTICLE A-17. EMINENT DOMAIN
A-17.01 If the whole or substantially all of the Premises shall be
acquired or condemned by eminent domain for any public or quasi public use or
purpose, or access thereto is materially, adversely affected, or if the parking
ratio is reduced below legal requirements; then and in any such event, if
Landlord shall not have provided reasonably sufficient alternative access or
parking, as the case may be, reasonably acceptable to Tenant, within thirty (30)
days of such condemnation, the term of this Lease shall cease and terminate from
the date of title vesting in such proceeding and the Tenant shall have no claim
against Landlord for the value of any unexpired term of said lease.
In the event that more than 10%, but less than the whole or substantially
the whole of the ground floor area of the Premises shall be so condemned, or
access thereto is materially, adversely affected, or if the parking ratio is
reduced below legal requirements, the Landlord and the Tenant, if Landlord shall
not have provided reasonably sufficient alternative access or parking, as the
case may be, reasonably acceptable to Tenant, within thirty days of such
condemnation, shall each have the right to cancel and terminate this Lease, upon
the giving of written notice to the other party not later than thirty (30) days
after the date of vesting of title in the condemning authority, of the said
party's election to terminate said Lease. Termination shall be effected as of
the time that possession of the part so taken shall be required for public use,
Rent shall be apportioned and adjusted as of the time of termination and Tenant
shall have no claim against Landlord for the value of any unexpired term of this
Lease.
In the event that not more than 10% of the ground floor area of the
Premises shall be taken by condemnation or in the event that the Lease shall not
be terminated as aforesaid, then the Term of this Lease shall continue in full
force and effect and the Landlord shall repair the remaining part of the
Premises, if any part thereof has been taken in such condemnation, and
thereafter the Rent shall xxxxx in the proportion which the square foot area of
any part of the Premises so taken bears to the entire Premises.
No part of any award for any such taking by condemnation or eminent domain
shall belong to the Tenant and Tenant covenants to execute such instruments of
assignment as shall be necessary or reasonably required by Landlord in any
condemnation or eminent domain proceedings if so requested and to turn over to
Landlord any damages that may be recovered in such proceedings. Any award,
however, for damages for trade fixtures installed by Tenant or anyone claiming
under Tenant at its own expense and which are not part of the realty shall
belong to the Tenant.
The Landlord shall have the absolute right to settle any claim in
condemnation proceedings without interference from Tenant and without any
obligation to Tenant, and Landlord shall have the absolute right to make a
conveyance of title of the real property being taken by condemnation proceedings
to the public or quasi public authority having the power of eminent domain in
lieu of the condemnation proceedings and where said conveyance is made in lieu
thereof, it shall have the same force and effect herein as if the condemnation
proceedings had proceeded to full and final completion.
A conveyance of title in lieu of such proceedings shall not be made prior
to the actual commencement of proceedings or the filing of formal notice of the
taking.
ARTICLE A-18. MISCELLANEOUS
A-18.01 Any reference in the printed portion of this Lease to the City of
New York and the Administrative Code of the City of New York shall, where
applicable, be deemed to refer to the ordinances, rules and regulations of the
county, town and other governmental authorities with jurisdiction over the
Premises.
A-18.02 If any term or provision of this Lease or the application thereof
to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby. Each term and provision
of this Lease shall be valid and enforced to the fullest extent permitted by
law.
A-18.03 This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
A-18.04 Any conflict between the printed form and Riders which together
constitute this Lease shall be resolved in favor of the provisions of such
Riders.
A-18.05 The submission of this Lease for examination or the negotiation of
the transaction described herein or the execution of this Lease by only one of
the parties will not in any way constitute an offer to lease on behalf of either
Landlord or Tenant, and this Lease shall not be binding on either party until
duplicate originals thereof, duly executed on behalf of both parties, have been
delivered to each of the parties hereto.
A-18.06 If Landlord shall make application to any bank, insurance company
or other lender for a mortgage loan to be secured in part or in whole by the
Building and such third party requires a certified financial statement of Tenant
or other reasonable documentation of Tenant's financial condition, Tenant shall
furnish the same to Landlord promptly after Landlord's request.
A-18.07 Unless the Premises shall include the Property in its entirety,
Landlord reserves the right to extend or add additional floors to or otherwise
alter the Building, and/or create such additional tenancies in the Building, as
Landlord may from time to time determine, provided the same shall not physically
reduce the Premises.
A-18.08 Neither this Lease nor any memorandum hereof shall be recorded
without Landlord's prior written consent.
A-18.09 Each provision of this Lease which requires the consent or
approval of Landlord shall be deemed to require the same in each instance in
which such provision may be applicable. Any consent or approval by Landlord to
or of any act or omission by Tenant requiring Landlord's consent or approval
shall not be deemed to waive any future requirement for such consent or approval
to or of any subsequent similar act or omission. With respect to any provision
of this Lease which provides, in effect, that Landlord shall not unreasonably
withhold or unreasonably delay any consent or any approval, Tenant shall in no
event be entitled to make, nor shall Tenant make, any claim for, and Tenant
hereby waives any claim for money damages; nor shall Tenant claim any money
damages by way of setoff, counterclaim or defense, based upon any claim or
assertion by Tenant that Landlord has unreasonably withheld or unreasonably
delayed consent or approval, but Tenant's sole remedy shall be an action or
proceeding to enforce any such provision, or for specific performance,
injunction or declaratory judgment.
A-18.10 Tenant shall not, without Landlord's prior written consent, use,
occupy, have any right to use or occupy, or otherwise have any interest in or to
any space in the Building other than the Premises.
A-18.11 Tenant shall not, without Landlord's prior written consent,
install or maintain, or permit any other party to install or maintain, any
pinball games, video games or any other mechanical or electronic device (except
vending machines for the use of Tenant's employees) of any nature whatsoever,
whether for the dispensing of food or other products or the provision of
entertainment. Nothing in this Section A-18.11, however, shall prohibit Tenant
from using mechanical or electrical equipment in its business.
A-18.12 Tenant shall not permit any trailer, truck or other vehicle to be
parked, stored or otherwise present on or about the portion of the Property as
indicated on the site plan annexed hereto, except that Tenant may allow a
vehicle to temporarily park on such portion of the property solely for the
purposes of loading and unloading. Tenant shall, at its own cost and expense,
maintain in good condition and repair any loading platform, truckdock and or
truck maneuvering space which is used exclusively by Tenant or to which Tenant
has the right of exclusive use.
A-18.13 No interruption or malfunction of any utility services for any
cause whatsoever shall constitute an eviction or disturbance of Tenant's use and
possession of the Premises, or a breach by Landlord of any of its obligations
hereunder or render Landlord liable for any damages (including, without
limitation, consequential and special damages), or entitle Tenant to be relieved
from any of its obligations hereunder (including, without limitation, the
obligation to pay Rent) or grant Tenant any right of set-off or recoupment. In
the event of any such interruption of any such services, Landlord shall use
reasonable diligence to restore such service in any circumstances in which such
interruption is caused by Landlord's fault.
A-18.14 If Tenant shall at any time fail to pay the water meter charges
after demand therefor by the Landlord, the Landlord shall have the right, at its
election to terminate and discontinue all water service to the Building
including the right to remove the water meter from the Premises. The Tenant
shall bear all costs of removal of the meter and/or discontinuance of service
and all costs to restore the meter and resuming service. In the event of
Landlord's failure to pay the water meter charges, Tenant, upon at least thirty
days' prior written notice to Landlord, may pay such water meter charges
directly to the utility company furnishing water to the building and Tenant may
deduct such payments from Rent next becoming due.
A-18.15 Intentionally Omitted
A-18.16 Intentionally Omitted
A-18.17 Notwithstanding any other provision of this Lease, Landlord's
service of notice by way of express mail or courier service shall be deemed
sufficiently rendered so long as it satisfies all other requirements contained
in the notice provision of the printed portion of this Lease, and shall be
deemed given at the time when the same is mailed or delivered, respectively.
A-18.18 If the Premises include a basement, Tenant shall use the same only
for storage purposes.
A-18.19 Tenant must give Landlord advance notice of the date and time when
tenant plans to move in and out of the building.
A-18.20 Landlord's acceptance at its option of the check of any third
party in payment of rent or of any other money obligation under this lease shall
not be deemed an acceptance by Landlord of the maker or any endorser of such
check as tenant hereunder or assignee of the Tenant hereunder.
A-18.21 The headings and captions of articles or paragraphs contained in
this Lease and Exhibits and Riders attached hereto are inserted only as a matter
of convenience and in no way define, limit, construe, or describe the scope or
intent of such articles or paragraphs nor in any way affect this Lease.
A-18.22 Both parties acknowledge and agree that this Lease has been freely
negotiated by both parties, and that, in any dispute over the meaning,
interpretation, validity, or enforceability of this Lease or any of its terms or
conditions, there shall be no presumption whatsoever against either party by
virtue of that party having drafted this Lease or any portion thereof.
A-18.23 Landlord shall have the right in its sole and absolute discretion
to place a For Lease or For Rent sign in or on the Premises or the Building of
which the Premises form a part at any time on or after the date that Tenant
shall have vacated from the Premises or during the last six (6) months of the
Term.
A-18-24 This Lease cannot be changed, supplemented, or terminated early
except by written agreement between the parties hereto or as otherwise provided
in Article 17 hereof. There are no oral agreements or understandings between the
parties. Neither Landlord nor any representative of Landlord has made any oral
representations, warranties or promises to the Tenant, or any representative of
Tenant, of any kind, nature or description.
A-18.25 Provided that Tenant does not occupy the entire Building, Landlord
reserves the right at any time to relocate Tenant to another location in the
Building. Landlord shall reimburse Tenant for reasonable moving expenses
incurred in connection with such relocation. Other than such moving expenses,
Landlord shall have no liability whatsoever to Tenant.
Article A-19. Tenant's Representations and Warranties
A-19.01 As material inducements for Landlord entering into this Lease,
Tenant hereby represents and warrants to Landlord that Tenant is a corporation
duly organized and validly, existing under the laws of the State of Delaware;
the persons executing and delivering this Lease on behalf of Tenant have been
lawfully and duly authorized to do so; and when so executed and delivered this
Lease represents the valid, binding and legally enforceable obligations of the
Tenant.
ARTICLE A-20. LOCKING SYSTEM
A-20.01 Tenant, at its sole cost and expense, may change the Key Locking
System currently installed at the demised premises, however, Tenant shall return
all currently existing locks, cores and hardware to Landlord.
ARTICLE A-21.
A-21.01 Tenant shall reimburse Landlord within thirty days of receipt of a
xxxx from Landlord for all testing and certifications for any mechanical and
electrical devices contained within the Demised Premises and/or the Building
including but not limited to an RPZ (Back Flow Preventer).
ARTICLE A-22.
A-22.01 Landlord's counsel and/or managing agent may give notice on behalf
of Landlord.
ARTICLE A-23.
A-23.01 INTENTIONALLY OMITTED
ARTICLE A-24. TENANT CANCELLATION OPTION
A-24.01 Tenant shall have the right and option to terminate the term of
this Lease effective the last day of the last month of the FIFTH LEASE YEAR
("Effective Date") subject to the terms and conditions described below, provided
that the Tenant shall serve a written notice to such effect upon Landlord on or
before the last day of the third month of the FIFTH LEASE YEAR. If Tenant shall
exercise such right and option, this Lease and the term hereof shall expire and
terminate on the Effective Date with the same effect as if that were the date
originally set forth herein for the expiration of the term hereof, and Tenant
shall vacate and surrender the demised premises to Landlord, in the manner and
condition required by this Lease, on or before such date as if such date were
the date originally set forth herein for the expiration of the term hereof.
A-24.02 The above described right of termination shall be effective and
binding on Landlord if and only if:
(a) such notice is sent by Tenant to Landlord by certified mail,
return receipt requested or by a nationally recognized overnight courier, next
business day service, on or before the last day of the third month of the FIFTH
LEASE YEAR the time and manner of such notice being of the essence.
(b) such notice is sent by the Tenant named herein, such right being
personal to such Tenant and not transferable to any assignee or subtenant.
(c) Tenant shall not be in default under any of the terms,
covenants, conditions, and provisions of this Lease at the time of such notice
or on the Effective Date.
(d) Together with such notice by cashier's check or certified check
of Tenant payable to Landlord, Tenant shall pay to Landlord an amount ("Release
Rent") equal to the sum of the following:
(i) $239,060.67; plus
(ii) 75% of all additional rent due under Article 30 of the
Printed Form, Article A-2.02, A-4.02 and C-5.02 and like provisions of the
Lease, during the FIFTH LEASE YEAR of the term of this Lease.
ARTICLE A-25. LANDLORD CONTRIBUTION TO TENANT WORK
A-25.01 (a) Provided Tenant is not in default under this Lease, beyond
notice and cure periods, Landlord shall contribute an amount equal to the
product of the actual interior square footage of the current office area of the
Premises multiplied by $10.00 but not to exceed $26,680.00 (the "Tenant Fund")
toward the cost of the alterations and improvements to be performed by Tenant in
the office area of the Premises prior to its conduct of business therein
("Initial Alterations") which shall be performed by Tenant, subject to all of
the terms of the Lease governing Alterations.
(b) Landlord shall disburse the Tenant Fund to Tenant to pay the
cost of the Initial Alterations after completion of the Initial Alterations in
the manner set forth in Section A-25.01(f) below, subject to the following: (i)
receipt of a request for disbursement from Tenant signed by the Chief Financial
Officer or President of Tenant; (ii) intentionally omitted; (iii) intentionally
omitted; (iv) receipt of general releases and waivers of lien from all
contractors, subcontractors and materialmen involved in the performance of the
Initial Alterations and the materials furnished in connection therewith;(v) a
certificate from Tenant's independent architect certifying that the Initial
Alterations have been completed substantially in accordance with the plans and
specifications therefor approved by Landlord and all contractors, subcontractors
and materialmen have been paid for the Initial Alterations and materials
furnished through such date; and (vi) receipt by Landlord of the plans or
certificates complying with the requirements of Article A-6.01 (f) and
subparagraph (e) below.
(c) It is expressly understood and agreed that Tenant shall
complete, at its sole cost and expense, the Initial Alterations, whether or not
the Tenant Fund is sufficient to fund such completion. Any costs to complete the
Initial Alterations in excess of the Tenant Fund shall be the sole
responsibility and obligation of Tenant.
(d) Intentionally Omitted.
(e) In connection with all work to be performed in and for the
Premises, Tenant shall file all drawings, plans and specifications, pay all fees
and obtain all permits and applications from the Building Department, the
Department of Labor and any other authorities having jurisdiction; and Tenant
shall obtain a Certificate of Occupancy and all other approvals required for
Tenant to use and occupy the Premises and to open for business to the public. If
Tenant shall delay in obtaining a Certificate of Occupancy for the Premises,
Landlord, at Tenant's cost and expense, may attempt to obtain such Certificate
of Occupancy and Tenant shall cooperate with Landlord (including the signing of
any necessary forms or applications) in connection with such efforts. Tenant
shall reimburse Landlord, as additional rent, for any costs incurred in
obtaining such Certificate of Occupancy.
(f) The Tenant Fund shall be disbursed by applying same to the
Minimum Rent due under the Lease, commencing with the installment due for the
second month of the First Lease Year until such Tenant Fund is exhausted.
RIDER B
RENT ESCALATION
B-1.01 The Fixed Minimum Rent of One Hundred Fifty-Two Thousand Three
Hundred Ninety-Seven and 00/100 Dollars ($152,397.00) per annum set forth in
this lease is based on the approximate Rentable Square Footage of 24,190 square
feet. This number is subject to adjustment if the Rentable Square Footage shall
be increased. The Fixed Minimum Rent of $152,397.00 which is subject to
adjustment, shall be increased each and every Lease year in accordance with the
following schedule:
Recomputed Fixed
Lease Year Minimum Rent
---------- ----------------
2 $158,492.88
3 $164,832.59
4 $171,425.89
5 $178,282.92
6 $185,414.23
7 $192,830.79
8 $200,544.02
9 $208,565.78
10 $216,908.41
RIDER C
PROVISIONS OF SPECIFIC APPLICATION
NON-OFFICE PREMISES
ARTICLE C-1. REPAIRS; MAINTENANCE-SINGLE TENANT
C-1.01 Tenant, at its sole cost and expense, shall keep and maintain the
entire interior and exterior of the Premises, including, without limitation, all
buildings and structures now or hereafter erected on the Premises, all walkways
and parking areas on the Premises and all fixtures, machinery, plumbing lines,
electrical wires (underground and above ground), systems (including, without
limitation, heating and ventilating and air conditioning and sprinkler, if any)
and other personal property of every nature now or hereafter attached to or used
in connection with the operation of the Building. Tenant, without limiting the
generality of the foregoing, shall make all structural and non-structural
installations, modifications, alterations, repairs, and replacements to the
foregoing as may be necessary to keep the same in good order and condition and
shall perform all preventive maintenance (including, without limitation,
maintaining the roof and roof drains free of snow, ice, leaves and other debris)
and Tenant shall comply with all laws and requirements of utilities. Such
repairs and replacements shall be done in a good and workmanlike manner with
materials at least equal in quality (but no used materials) to the original
construction materials and, in the case of structural repairs, subject to
Landlord's prior written approval of the materials, methods and contractors to
be used or engaged. Notwithstanding anything to the contrary contained herein,
Landlord may at Landlord's sole and exclusive option perform at Tenant's cost
and expense all repairs or replacements to the bearing walls, foundation,
structural steel, roof, roof deck and parking areas. Access to the Premises by
Landlord, its agents, employees and contractors shall be in accordance with the
terms of Article 13 of the Lease, as amended by Footnote 5 thereto.
Tenant shall not commit or suffer waste or injury to the Premises.
All janitorial work in and about the Premises shall be done by Tenant at its own
cost and expense. Tenant shall keep the grass, if any, trimmed, maintain the
grounds in a neat and presentable condition, free of trash, weeds and loose
debris, and keep the sidewalks, entranceways, driveways and parking areas
unobstructed, clean and free of rubbish, ice and snow. Tenant shall place all of
its refuse and rubbish in a dumpster which Tenant shall obtain and maintain at
the Premises. No trash or other debris shall be permitted to remain on or about
the Property, including, without limitation, the ground surrounding the
dumpster. If, in Landlord's opinion, the dumpster maintained by Tenant is
insufficient for Tenant's use, Tenant shall at its own cost and expense obtain
either a larger or, if space permits, an additional dumpster.
C-1.02 If Tenant shall fail to perform any repairs or maintenance work as
required under this Lease or necessitated by any breach by Tenant of its
covenants hereunder within fifteen (15) days of Landlord's notice thereof to
Tenant or immediately in the case of an emergency, or, if such work be of such
nature that it cannot with due diligence be completed within fifteen (15) days
and Tenant shall not have commenced making such repair within such fifteen (15)
day period and thereafter prosecuted the same in good faith with due diligence
to completion within a reasonable period of time, Landlord, without any further
notice to Tenant, may perform such work. In such event, Tenant shall pay as Rent
the cost of such work, plus fifteen percent for overhead and supervision, on
demand from Landlord. Receipted bills from contractors, materialmen and/or
laborers shall be conclusive proof of the cost thereof.
C-1.03 Except as otherwise specifically provided in this Lease, neither
the rights or privileges reserved hereunder by Landlord, nor the exercise
thereof by Landlord, nor any reference herein to repairs by Landlord, shall
impose any maintenance or repair liability or obligation upon Landlord. Nor
shall Landlord's performance of any such maintenance or repair work as provided
under Section C-1.02 above be deemed an assumption by Landlord of control over
the Premises or any portion thereof.
C-1.04 Tenant shall not cause or permit any person to enter upon the roof
of the Building except for the purpose of performing maintenance and/or repair
work on the roof. If any such maintenance or repair work requires a penetration
through the roof, Landlord, at its option and at Tenant's sole expense, may make
such penetration. Tenant shall not allow any grease or other foreign substance
of any nature to be deposited within the plumbing system or HVAC system
servicing the Premises or elsewhere in or about the Premises. Nor shall Tenant
cause or permit any materials or substances of any nature whatsoever to be
poured or otherwise deposited in the storm drain(s) situated about the Property.
C-1.05 Tenant, at its own expense, shall obtain and maintain a supervisory
service for the Building's sprinkler system, if any, and shall make all
necessary repairs to such system.
C-1.06 During the Term, Tenant shall, at its sole cost and expense,
maintain service agreements for the maintenance of all heating and air
conditioning equipment in or on the roof of the Premises or Tenant at its option
shall, at its sole cost and expense, maintain (without service agreements) all
heating and air conditioning equipment in or on the roof of the Premises and
deliver said equipment to Landlord in working condition at the end of the Lease
term. Within thirty (30) days of the commencement of and during the Term, Tenant
shall furnish Landlord with copies of all such agreements.
C-1.07 Tenant shall at its own expense, comply with all applicable laws,
ordinances and requirements for the sorting or separation of Tenant's garbage.
C-1.08 Tenant shall at its own expense, comply with all applicable laws,
ordinances and requirements for the sorting or separation of Tenant's garbage.
ARTICLE C-2. UTILITIES
C-2.01 Tenant shall within five (5) days of the date of execution of this
Lease make application to LIPA and pay, as and when the same shall become due
and payable, all charges for gas, electricity, heat, steam, hot water and other
utilities supplied to the Premises. Landlord if necessary will request LIPA to
take a final reading and disconnect the service to Landlord so that Tenant will
be billed directly. Tenant shall pay all of the foregoing directly to the
utility companies furnishing the different services, provided that if at
Landlord's election any of said rents, rates or charges are billed directly to
Landlord, Tenant shall pay each such amount to Landlord as Rent on demand. If
the Premises do not constitute the entire Building and any such direct bills to
Landlord pertain to utilities also furnished to other premises in the Building,
then the amount due Landlord from Tenant for each such utility shall equal (a)
Tenant's Proportionate Share of the total amount of each such xxxx which
pertains to a utility furnished to all tenants in the Building or (b) Tenant's
pro-rata share (based on the proportion of the Rentable Square Footage of the
Premises to the total rentable square footage of all premises to which such
utility is furnished) of the total amount of each such xxxx which pertains to a
utility furnished to less than all tenants in the Building.
C-2.02 (a) If Tenant does not presently have a separate water meter,
Tenant shall not apply for a separate water meter without Landlord's prior
written consent. Tenant shall pay Landlord as Rent the Monthly Water Charge on a
quarterly basis within thirty days of Tenant's receipt of Landlord's water xxxx.
(b) In lieu of Landlord requiring Tenant to pay for water charges in
the manner hereinabove set forth in Section C-2.02(a), Landlord may elect to
require Tenant to pay Landlord for water charges within ten days after Landlord
shall deliver to Tenant a demand thereof. Each such notice shall be accompanied
by a copy of the appropriate water xxxx.
(c) Landlord's failure to deliver to Tenant a statement showing
Tenant's liability for additional water charges for any year during the Term
under this Section C-2.02(a) shall neither prejudice nor waive Landlord's right
to deliver any such statement for any subsequent year or include in said
statement an amount of Rent due from Tenant for any water charges due during a
previous year in which Landlord did not provide Tenant with any such statement.
Tenant's obligation to pay Rent under Section C-2.02 with respect to the last
year of the Term shall survive the expiration of the Term.
C-2.03 Tenant, at its sole cost and expense, shall maintain all applicable
utility company service lines and meters located in or on the exterior of the
Premises.
ARTICLE C-3. PARKING FACILITIES
C-3.01 Unless the Premises shall constitute the entire Building, Tenant
shall cause all of its principals, officers and employees to park Tenant's and
their vehicles (collectively, the "Company Vehicles") solely in areas of the
parking field, if any, designated by Landlord for such purpose. Each and every
violation of this clause shall be deemed a breach of a substantial obligation of
Tenant, and, without limiting Landlord's other remedies therefor, Tenant shall
pay per diem as Rent the Daily Late Charge for each motor vehicle parked in
violation of this provision.
C-3.02 Unless Landlord shall at any time designate otherwise, the parking
area(s) behind the rear of the Building shall be the area designated for the
parking of Company Vehicles. Tenant shall, upon Landlord's request, furnish
Landlord with the automobile registrations (year, make and license plate) of all
principals, employees and agents of Tenant who either are employed at or
frequently visit the Premises.
C-3.03 Unless the Premises shall constitute the entire Building, Landlord
shall have the right to place self-adhering stickers on or have towed away any
Company Vehicles which are parked in areas other than those designated therefor
by Landlord or which otherwise are not in compliance with any rules and
regulations of Landlord with respect to the parking facilities. In the event of
repeated occurrences of the above, Landlord may terminate this Lease in the
manner herein elsewhere provided. Landlord shall have no liability whatsoever
for towing or stickering Company Vehicles as aforesaid, and Landlord shall use
reasonable efforts to notify Tenant of the first occurrence (only) of the same
before taking any such action.
ARTICLE C-4. SIGNAGE
C-4.01 Tenant shall not cause or permit the placement or other
installation of any signs on or about the Property which are visible from
outside the Premises without Landlord's prior written approval, which approval
shall not be unreasonably withheld, and, after the installation of any such
approved sign, Tenant shall not cause or permit the same to be changed or
altered in any respect without Landlord's prior written approval which shall not
be unreasonably withheld. Any signs which Landlord may approve shall in all
events comply with all applicable rules and regulations of county, town and
other governmental authorities, be of a dignified character and satisfy such
other standards as Landlord may require. The term "sign" shall be deemed to
include, without limitation, any form of placard, light or other advertising
symbol or object whatsoever, whether of a permanent or temporary nature.
C-4.02 Tenant shall not cause or permit the placement or other
installation of any awning, security gates or bars of any nature in, on or above
any window, door or other opening to the Premises without Landlord's prior
written consent which shall not be unreasonably withheld.
C-4.03 If the Premises shall not constitute the entire Building and the
Premises shall be situated in whole or in part on the ground floor, Tenant shall
place a sign on the back door, if any, of the Premises, indicating Tenant's name
and the address of the Premises.
C-4.04 Unless the Premises shall constitute the entire Building, Landlord
reserves the right to place a sign or signs on the exterior walls of the
Premises and Building, indicating the name and/or business of other tenants in
the Building.
ARTICLE C-5. LIABILITY FOR HAZARDOUS WASTES
C-5.01 Tenant shall not cause or allow to be caused on or about the
Premises any Hazardous Environmental Condition and Tenant shall not store,
manufacture, dispose of, process, keep, or maintain at the Premises any
substance, or
material whatsoever which has the potential of being deemed a hazardous
substance or material by any governmental jurisdiction or authority including,
without limitation, the governmental jurisdictions or authorities described
below in the definition of term Hazardous Environmental Condition. Tenant shall
indemnify and hold harmless Landlord, its officers, directors, principals,
successors and assigns and the Property from and against any and all claims of
third parties (including Tenant's agents, employees and contractors),
obligations, liabilities, violations, penalties, fines, governmental orders,
suits, causes of action, judgments, damages (civil, criminal or both) and all
other costs and expenses of any nature whatsoever including without limitation
reasonable consultants' fees and attorney's fees, which may result from any
Hazardous Environmental Condition caused in connection with Tenant's use or
occupancy of the Premises. The term "Hazardous Environmental Condition" shall
mean any condition in, on or under the Premises arising from or in connection
with any source or cause whatsoever, including, without limitation, the
spilling, leaking, leaching, migration, discharge, dispersal, release or escape
of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or
gases, petroleum or petroleum products, waste materials or other irritants,
contaminants, pollutants or other substances of any nature into or upon land,
the atmosphere, or any water course or body of water, or ground water whether
sudden and accidental or over a course of time, which either (a) has caused or
has the potential of causing bodily injury or property damage to any person or
thing or (b) is or may hereafter be designated as a "hazardous waste",
"hazardous substance", "regulated waste" or "regulated substance" or any other
term of similar import by any governmental jurisdiction with authority,
including, without limitation, the United States Environmental Protection
Agency, the New York Department of Environmental Conservation and/or the Nassau
County Department of Health, which requires or may hereafter require the
development and implementation of a remedial program, and/or result in the
imposition of fines and/or penalties, and/or impose on the Owner of the Premises
any obligation whatsoever. The foregoing indemnification shall survive the
termination of this Lease, and without limiting the generality of the foregoing,
Tenant and Tenant's principals shall indemnify and hold harmless Landlord from
and against (i) any and all liens for remedial expenses in favor of any federal,
state and/or local governmental authority or municipality and (ii) any and all
legal fees and disbursements in connection with defending any suits or
proceedings pertaining to a Hazardous Environmental Condition including suits to
enforce this Article.
C-5.02 Landlord and its contractors, employees and agents shall have the
right to enter the Demised Premises on regular business days, during regular
business hours, upon at least five business days' prior written notice to
Tenant, to conduct tests at Tenant's expense and to inspect the Demised
Premises, and Tenant must have a representative accompany Landlord's
contractors, employees or agents during any such testing or inspection. The
purpose of any such tests or inspections shall be to determine the condition,
specifically the environmental condition, of the Premises and to insure Tenant's
compliance with Article C-5.01. Access to the Premises by Landlord, its agents,
employees and contractors shall be in accordance with the terms of Article 13 of
the Lease, as amended by Footnote 5 thereto.
ARTICLE C-6. MISCELLANEOUS
C-6.01 The Rentable Square Footage of the Premises has been computed by
measuring at floor level from the outside exterior walls (or, in the case of any
overhang(s) extending from any such wall(s), from the outside of each such
overhang at the furthest point from said exterior wall) and, if the Premises do
not constitute the entire Building, the midpoint of demising walls, and the
outside (common area side) of demising walls between the Premises and common
corridors and areas, if any.
ARTICLE C-7. GREASE TRAPS, ETC.
C-7.01 The Tenant shall install an xxxxx system or similar automatic
system in its ducts and shall also install proper filters in its duct system and
shall maintain an adequate maintenance program for the cleaning and replacement
of filters and ducts including a service and maintenance contract for the xxxxx
system, hoods, ducts and filters. The system installed must meet Fire
Underwriters and fire rating organization approval, and proof of the
installation and of the maintenance and service contracts shall be submitted to
the Landlord upon demand. Tenant shall not be required to install such a system
unless required by government agency. In addition, the Tenant shall maintain its
premises clean and free of vermin of any kind and nature and maintain an
adequate extermination program and submit proof thereof to the Landlord on
demand.
RIDER D
INTENTIONALLY OMITTED
RIDER E
ENDO PHARMACEUTICALS, INC.
000 XXXXXXXXX XXXX XXXX, XXXXXXXXXX, XXX XXXX
LANDLORD'S WORK CRITERIA
Tenant acknowledges and agrees to accept the existing Demised Premises in
its "as is" condition in all respects as of the date hereof, except for
"Landlord's Work." Landlord's Work shall mean and be strictly limited to the
construction as indicated on the plans attached to this Lease and made a part
thereof (Exhibit A) and as described below. Landlord's Work does not imply any
ongoing responsibility for repairs and maintenance, such conditions and terms
being set forth in the body of this Lease. In the event of a discrepancy between
the plan and this work letter, the work letter shall take precedence.
A. Utility service to Demised Premises:
1. Electric New individually metered 3000 Amp, 208/120-volt
and 3-Phase Service subject to receipt of Tenant's
load letter and approval by the local utility
company.
2. Gas Existing individually metered and sized to satisfy
requirements for heating.
3. Water Municipal supply master metered to building.
Tenant to pay pursuant to terms and conditions of
Lease.
4. Sanitary 4-inch sanitary sewer pipe.
5. Trash Removal Tenant to pay to maintain and service carting.
6. Utility Service Tenant to apply to utility company for electric
and gas service immediately upon receipt of
Delivery of Possession from Landlord. Landlord
will discontinue such service (in Landlord's name)
3 business days following Delivery of Possession.
B. Furnish and install (F/I) a new facade finish including new windows and
entrance on the east lower elevation of the building substantially as
indicated on plans attached to this Lease (Exhibit "A"). New facade finish
to return at least 3 feet on the North & South building elevations.
Remaining exterior masonry walls to be repaired and repointed as necessary
and to receive a new paint finish in conformance with the design of the
east facade.
C. Existing paving to remain and to be repaired and patched as necessary.
F/I seal coat finish and stripe parking areas as required.
D. F/I individual electric service comprising 3000 amps, 208/110v, 3-phase
service including meter pan and main disconnect switch. Existing 1200 amp
electric service is to be demolished and removed. Existing distribution
panels to remain and be abandoned.
E. Any roof penetrations required by Tenant shall be performed by Landlord's
roofing contractor (F&F Roofing or other company as Landlord, in its sole
and absolute discretion, may designate).
F. Landlord's Work shall be deemed substantially completed notwithstanding
the fact that (i) minor or insubstantial details of construction,
mechanical adjustment or decoration remain to be performed or (ii)
portions of Landlord's
Work have not been completed because under good construction scheduling,
such work should be done after still incomplete finishing or other work to
be done by Tenant is completed.
G. Any additional work that Tenant authorizes the Landlord to perform will be
at the sole cost and expense of the Tenant. Tenant will execute a Work
Authorization Form prepared by Landlord and issue a check for the full
amount of the cost of such work prior to Landlord performing any such
additional work. Tenant shall submit its requirements for such additional
improvements to Landlord and Landlord shall submit a written proposal to
Tenant to perform the work as outlined.
TENANT'S WORK CRITERIA
1. Tenant shall, within 90 days of the Effective Date, provide Landlord
with Tenant's "Working Drawings", which shall be deemed to mean all
plans and specifications of the Demised Premises necessary for Tenant
to file for and obtain a building permit for the Building. Plans shall
include, but not necessarily be limited to, site improvements
(landscaping, fencing, lighting, etc.), interior partitions, acoustical
ceilings, floor and wall finishes, bathrooms, lighting, power, HVAC,
plumbing, fire sprinklers, fire and smoke alarm system, etc. All
architectural and engineering working drawings and specifications shall
be prepared, signed and sealed by New York State registered architects
and engineers, as the case may be, engaged by Tenant at it's sole cost
and expense. Tenant's Working Drawings shall include, but not limited
to:
(a) Floor Plan Scale -1/4" = 1'0"
(b) Reflected Ceiling Plan Scale -1/4" = 1'0"
(c) Interior Elevations and Sections and Details Sufficient for
Construction.
(d) Interior Finish Schedule
(e) Sign and Sign construction with Details with Proposed Colors.
(f) Color chips and samples of all materials and finishes.
(g) Complete plans and specifications covering the electrical
distribution system, lighting and power systems, heating,
ventilation and air-conditioning systems, and plumbing systems, as
described in this Rider. Drawings must indicate connected electrical
loads. Tenant's design shall be in conformity with the current
available utilities, in terms of the capacity, location and
otherwise as modified by Landlord in accordance herewith.
(h) Construction specifications
Tenant's Working Drawings shall in all respects comply with all legal
requirements and substantially conform to the existing Building Plans. To
expedite Landlord's review, Tenant's Working Drawings shall include
sufficient details, tabulations and calculations of Tenant's utility
load(s) and structural load(s) where necessary and as reasonably required
by Landlord.
2. Landlord shall notify Tenant of Landlord's comments and/or approval of
Tenant's Working Drawings, as submitted by Tenant within fifteen (15)
days of Landlord's receipt thereof. Within 10 days thereafter, Tenant
shall revise or correct said Working Drawings and shall submit such
revisions or correction to landlord. The approval procedure, as
hereinbefore described, will continue to be in effect until such time
as Tenant's Working Drawings are approved. Landlord's approval will be
evidenced by endorsement to that effect by Landlord's Managing Agents
Director of Property Operations on one set of the Working Drawings and
the return of such signed set to Tenant.
Within five (5) days after Landlord shall have approved Tenant's Working
Drawings as aforesaid, Tenant shall submit to Landlord three sets of
prints of such Working Drawings and shall make all necessary filings to
obtain a building permit ("Building Permit") from the Town of North
Hempstead. Tenant shall obtain the Building Permit within fifty (50) days
after the date of Landlord's approval of Tenant's Working Drawings,
subject to extension
only for, and only up to the number of days of, any delay in the
processing and approval of Tenant's Working Drawings by the Town of North
Hempstead which in no way result from the acts or omissions of Tenant.
Tenant shall be responsible for obtaining all other government approvals
for Tenant's Work, and shall submit copies of all such approvals to
Landlord promptly after Tenant's receipt of same. Tenant, at its sole cost
and expense, shall be responsible throughout the Term for any revisions to
its design, plans, drawings, or specifications occasioned by a change in
Legal Requirements. Tenant shall perform a final as-built plan at Tenant's
sole cost and expense.
3. Any approval or consent by Landlord shall in no way obligate Landlord in
any manner whatsoever with respect to the finished product designed and/or
constructed by Tenant. Any deficiency in design or construction, although
same had prior approval of Landlord, shall be solely the responsibility of
Tenant. All materials and equipment furnished by Tenant shall be new and
all work shall be done in a first class workmanlike manner.
4. Tenant may utilize existing sprinklers and reconfigure design as necessary
to suit new office, laboratory, bathroom and warehouse arrangement.
Sprinkler design is based upon ordinary hazard storage. Any requirements
by government or insurance authorities to require additional sprinklers,
due to the nature use and storage of Tenant's materials, shall be
installed by Tenant at the sole cost and expense of Tenant.
A. Time for Commencement and Completion of Tenant's Work. Tenant will
commence construction of Tenant's Work within ten (10) days after issuance
of the Building Permit by the Town of Oyster Bay. Tenant will perform and
complete Tenant's Work in accordance with all applicable laws, orders,
regulations and requirements of all governmental authorities, landlord's
insurance carriers and the Board of Fire Underwriters having jurisdiction
and Landlord's Mortgagee.
Prior to the commencement of Tenant's Work, Tenant shall submit to
Landlord for Landlord's approval, a construction schedule (which Tenant
shall update from time to time as may be necessary), and a list of
contractors who perform Tenant's Work. Tenant shall not commence any work
until all of the following have occurred: (i) Landlord's approval of
Working Drawings, (ii) Tenant's making of all necessary filings, paying
all fees and obtaining all necessary permits with respect to Tenant's
Work, and (iii) submission to Landlord of all insurance certificates in
compliance with Section A-5.04 of the Lease. Tenant's Work shall be
performed in accordance with the approved Working Drawings and this Rider
E. Except for Landlord's Work, Tenant shall perform all work necessary in
order to prepare the Demised Premises for opening for business, all such
work and activities to be done at Tenant's sole risk and cost and in
accordance with all Legal Requirements, including the Occupational Safety
and Health Act. Tenant agrees that with respect to such activities and
work during such period, it will (a) not damage, delay or interfere with
the prosecution or completion of any work being performed by Landlord; and
(b) comply with all reasonable requirements of Landlord from time to time
for coordination of such work and activities with any work being performed
by Landlord, as well as any other construction and operation of the
Building. Tenant shall use only areas within the Demised Premises for
deliveries and construction staging, management and operations. If Tenant
fails or refuses to comply with any of the foregoing obligations, Landlord
without any liability to Landlord, may require Tenant to cease the
performance of such work and activities until Tenant agrees to comply with
the foregoing obligations.
B. Coordination of Work. Tenant's Work shall be coordinated, and shall not
interfere or delay, with Landlord's Work and the operation of the
Building.
C. (Intentionally Omitted)
D. Temporary Utilities. Landlord shall be responsible for all temporary
utilities required in connection with its construction. Tenant shall
assume such responsibility, without recourse, upon Landlord's Delivery of
Possession of the Demised Premises to Tenant.
E. Compliance with Codes, Laws and Ordinances. All Landlord's Work and
Tenant's Work shall be performed in compliance with all applicable
government codes, laws, ordinances, orders and regulations and shall
comply with applicable standards including but not limited to the National
Board of Fire underwriters, the National Electrical Codes, The
Occupational Safety and Health Administration, The American Society of
Heating, Refrigeration and Air Conditioning Engineers, Factory Mutual
Insurance, and the requirements of the insurance companies which provide
insurance coverage relating to the property, any other agencies having
jurisdiction and with the overall design and construction standards of the
building. All Tenants' Work shall be subject to Landlord's prior written
approval.
F. Certificate of Occupancy. Tenant shall obtain a Certificate of Occupancy
for the Demised Premises promptly after its completion of Tenant's Work.
If Tenant shall open the Demised Premises for business without first
obtaining a Certificate of Occupancy for the Demised Premises, then
(unless Tenant's failure is due to Landlord's fault) Tenant shall be
deemed to be in default of this Lease and upon thirty (30) days' written
notice to Tenant, Landlord, at Tenant's cost and expense, may attempt to
obtain such Certificate of Occupancy and Tenant shall cooperate with
Landlord (including the signing of any necessary forms or application) in
connection with such efforts. Tenant shall reimburse Landlord, as
additional rent within thirty days after being billed therefore, for all
reasonable costs incurred by Landlord in obtaining such Certificate of
Occupancy and shall indemnify and hold harmless Landlord for any and all
costs and expenses incurred by Landlord as a result thereof, including,
with limitation, reasonable attorney's fees.
G. Insurance Requirements. Tenant or its contractors shall be required to
provide and maintain, at their sole cost and expense and in addition to
the insurance required of Tenant pursuant to Article A-5 of this Lease,
the following types of insurance at all times during the period from the
date immediately preceding the date of commencement of Tenant's Work
through the date Tenant opens the Demised Premises for business.
(1) Builder's Risk Insurance: Tenant or its contractors shall maintain
casualty insurance in Builder's Risk Form naming Landlord and
Landlord's mortgagee as loss payee as their interests may appear,
against loss or damage by fire, vandalism, and malicious mischief
and other such risks as are customarily covered by the so-called
"broad form extended coverage endorsement" upon all Tenant's Work in
place and all materials (whether stored at the site of offsite) of
Tenant's Work and all materials, equipment, supplies and temporary
structures of all kinds incident to Tenant's Work and builder's
machinery, tools and equipment, all while forming a part of, or
contained in, such improvements or temporary structures while on or
off the Demised Premises, or when adjacent thereto, while on malls,
drives, sidewalks, streets or alleys, all on a completed value basis
for the full insurable value at all times. Said Builder's Risk
Insurance shall contain an express waiver of any right of
subrogation by the insurer against Landlord, it's agents, employees,
consultants and mortgagee.
(2) Worker's Compensation and Disability Benefits Insurance. Tenant's
contractors and subcontractors shall maintain in effect statutory
Worker's Compensation and Disability Benefits Insurance as required
by the State.
(3) Liability Insurance. Tenant or its contractors shall secure and
maintain in effect a policy of Commercial General Liability
Insurance, on an occurrence basis, in the amount set forth in
Article A-5 of this Lease, including Broad Form Property Damage,
complete operations liability, Water Damage, and Sprinkler Leakage
Liability. Said Liability policy shall be on a Commercial General
and Automobile Liability form and include, but not be limited to,
coverage for all operations of Tenant's contractors and
subcontractors, including automobile coverage (for both owned and
non-owned vehicles), and completed operations liability. All
property insurance certificates shall name Landlord and Landlord's
mortgagee as additional insureds.
(4) Cancellation: The policies of insurance referred to in this
Paragraph G shall not be cancelled or modified without Tenant or its
contractor giving Landlord thirty (30) days prior written notice.
(5) Certificates: Prior to the commencement of Tenant's Work, Tenant and
Tenant's contractors shall provide Landlord with a copy of a
Certificate of Insurance showing coverage and endorsements as
required under this Paragraph.
(6) Ratings: Any insurance which Tenant is obligated to carry pursuant
to this Lease or Exhibit shall be issued by a company licensed to
write insurance in New York State and having a current General
Policyholder's Service Rating of not less than A-/X as rated in the
most current Best's Insurance Report (or by insurance companies
otherwise acceptable to Landlord).
H. Indemnity. It is agreed that Tenant assumes the responsibility and
liability for any and all injuries or death of any or all persons,
including Tenant's consultants, contractors and subcontractors, and their
respective employees and for any and all damages to property caused by, or
resulting from or arising out of any act of or omission on the part of
Tenant, Tenant's consultants, contractors or subcontractors or their
respective employees, in the prosecution of Tenant's Work. Tenant shall
indemnify and save free and harmless Landlord, it's principals and
mortgagee, from and against all losses and/or expenses, including
reasonable legal fees and expenses, which they may suffer or pay as the
result of claims or lawsuits due to, because of, or arising out of any and
all such injuries or death and/or damage, whether real or alleged and
Tenant and Tenant's consultants, contractors and/or subcontractors or
their respective insurance companies shall assume and defend at their own
expense all such claims or lawsuits. Tenant agrees to insure this assumed
liability under it's policy of Commercial General Liability Insurance and
the Certificate of Insurance or copy of the policy that Tenant will
present to Landlord shall so indicate such contractual coverage.
I. Utilities. In connection with utility service to the Demised Premises, all
applications, deposits, and installation charges and arrangement for the
same (except to the extent such specifically is required in connection
with Landlord's Work) shall be the sole responsibility of Tenant.
J. As-built Reproducibles. Promptly after completion of Tenant's Work, Tenant
shall deliver to Landlord one set of mylar reproducibles or on an Autocad
2000 (or compatible equal) disc reflecting as-built conditions.
K. The headings or captions of paragraphs contained in this Rider and in the
Lease are inserted only as a matter of convenience and in no way define,
limit, construe or describe the scope or intent of such articles or
paragraphs nor in any way effect the Lease or this Rider.
L. In the event of any dispute between the parties regarding anything arising
under this Rider E, either party may submit such dispute to binding
arbitration in accordance with the rules for expedited procedures to the
American Arbitration Association in Nassau County, New York. The
unsuccessful party as determined in such arbitration proceeding shall pay
the entire cost and expense of such arbitration within thirty (30) days
after the date of such determination, and each party shall separately pay
for its own attorney's and witness' fees and expenses.
EXHIBIT E-1
SIGN CRITERIA
A. FASCIA IDENTIFICATION SIGN
Tenant shall install, subject to the terms and conditions set forth below,
a fascia identification sign. The sign shall be individual, internally lighted
channel letters. Tenant's sign contractors shall be approved by Landlord, which
approval shall not be unreasonably withheld. The following terms and conditions
shall apply:
1. The signage shall conform to the requirements of the relevant
government agencies.
2. The design of Tenant's sign (including, without limitation, letter
style, logo, etc.) shall be subject to Landlord's approval (which
shall not be unreasonably withheld) prior to installation. Any
approval by landlord of the design of Tenant's sign shall be in
writing and signed by the Director of Property Operations or the
President of Spiegel Associates.
3. Tenant shall, at its sole cost and expense, obtain a sign permit
from the Town of Oyster Bay. Tenant shall furnish Landlord with a
copy of such permit prior to installation of its sign as well as a
Certificate of Completion indicating the approval of the sign
installation by the relevant government agency.
4. Tenant shall be responsible for, and shall indemnify and hold
harmless Landlord against, any claims and liabilities, and any
and all costs and expenses (including attorneys' fees and
expenses) resulting from or in connection with the installation
of Tenant's sign, including but not limited to any damage to the
continuous sign box, building facade or any other portion of the
Demised Premises or the Shopping Center. The provisions of this
Paragraph shall survive the expiration or sooner termination of
this Lease.
