EXHIBIT 10.8
LEASE
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EGRET REALTY CORP.
Landlord
to
XXXXX MARINE CORP.
Tenant
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THIS LEASE, dated the 30th day of April 1999
Between EGRET REALTY CORP., a New York corporation,
000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxx Xxxx 00000,
hereinafter referred to as the Landlord, and
XXXXX MARINE CORP., a New York corporation,
0000 Xxxxxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxx 00000,
hereinafter referred to as the Tenant,
PREMISES
WITNESSETH: That the Landlord hereby demises and leases unto the Tenant, and the
Tenant hereby hires and takes from the Landlord for the term and upon the
rentals hereinafter specified, the premises described as follows, situated in
the Borough of Staten Island, County of Richmond and State of New York, as more
particularly described in Paragraph 31 of the Rider annexed hereto, including
office facilities, all piers and docks, lands under water and upland adjacent to
the piers and docks.
TERM
The term of this demise shall be as set forth in Paragraph 30D of the Rider
annexed hereto.
RENT
The rent for the demised term shall be as set forth in Paragraph 30A of the
Rider annexed hereto.
PAYMENT OF RENT
The said rent is to be payable monthly in advance on the first day of each
calendar month for the term hereof, in installments as set forth in Paragraph
30C of the Rider attached hereto.
At the office of the Landlord.
Or as may be otherwise directed by the Landlord in writing.
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THE ABOVE LETTING IS UPON THE FOLLOWING CONDITIONS:
PEACEFUL POSSESSION
FIRST.--The Landlord covenants that the Tenant, on paying the said rental
and performing the covenants and conditions in this Lease contained, shall and
may peaceably and quietly have, hold and enjoy the demised premises for the term
aforesaid.
PURPOSE
SECOND.--The Tenant covenants and agrees to use the demised premises as a
general office, marine terminal and marine repair facility and for any other
lawful purpose,
and agrees not to use or permit the premises to be used for any other purpose
without the prior written consent of the Landlord endorsed hereon.
DEFAULT
THIRD.--The Tenant shall, without any previous demand therefor, pay to the
Landlord, or its agent, the said rent at the times and in the manner above
provided. In the event of the non-payment of said rent, or any installment
thereof, at the times and in the manner above provided, and if the same shall
remain in default for thirty days after written notice from Landlord that the
same is due and unpaid or if the Tenant shall be dispossessed for non-payment of
rent, or if the leased premises shall be deserted or vacated, and the rent has
not been paid, the Landlord or its agents shall have the right to and may enter
the said premises as the agent of the Tenant, and may relet the premises as the
agent of the Tenant, and receive the rent therefor, upon such terms as shall be
satisfactory to the Landlord, and all rights of the Tenant to repossess the
premises under this lease shall be forfeited. Such re-entry by the Landlord
shall not operate to release the Tenant from any rent to be paid or covenants to
be performed hereunder during the full term of this lease. For the purpose of
reletting, the Landlord shall be authorized to make such repairs or alterations
in or to the leased premises as may be necessary to place the same in good order
and condition. The Tenant shall be liable to the Landlord for the cost of such
repairs or alterations, and all reasonable expenses of such reletting. If the
sum realized or to be realized from the reletting is insufficient to satisfy the
monthly or term rent provided in this lease, the Landlord, at its option, may
require the Tenant to pay such deficiency month by month, or may hold the Tenant
in advance for the entire deficiency to be realized during the term of the
reletting (in which case such sum shall be discounted to present value at a rate
of 10%). The Tenant shall not be entitled to any surplus accruing as a result of
the reletting. The Landlord is hereby granted, a lien, in addition to any
statutory lien or right to distrain that may exist, on all personal property of
the Tenant in or upon the demised premises excluding only vessels and maritime
equipment, to secure payment of the rent and performance of the covenants and
conditions of this lease. The
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Landlord shall have the right, as agent of the Tenant, to take possession of any
furniture, fixtures or other personal property of the Tenant found in or about
the premises, and sell the same at public or private sale and to apply the
proceeds thereof to the payment of any monies becoming due under this lease. The
Tenant agrees to pay, as additional rent, all reasonable attorney's fees and
other expenses incurred by the Landlord in enforcing any of the obligations
under this lease. Notwithstanding anything in this section "Third" to the
contrary, for purposes of calculating Landlord's damages hereunder, Tenant shall
be deemed to have exercised its termination date as of the earliest possible
date following its default.
SUB-LETTING AND ASSIGNMENT
FOURTH.--The Tenant shall not sub-let the demised premises nor any portion
thereof, nor shall this lease be assigned by the Tenant without the prior
written consent of the Landlord endorsed hereon which consent shall not be
unreasonably withheld or delayed; provided that Landlord's consent shall not be
required in connection with a sublet or assignment (i) to any affiliate of
Tenant, (ii) to any entity purchasing all or substantially all of the stock or
assets of Tenant or (iii) to any entity that succeeds to Tenant's interest by
merger or reorganization.
CONDITION OF PREMISES, REPAIRS
FIFTH.--The Tenant has examined the demised premises, and accepts them in
their present condition (except as otherwise expressly provided herein) and
without any representations on the part of the Landlord or its agents as to the
present or future condition of the said premises except as provided herein. All
erections, alterations, additions and improvements, whether temporary or
permanent in character, which may be made upon the premises either by the
Landlord or the Tenant, except furniture or movable trade fixtures installed at
the expense of the Tenant, shall be the property of the Landlord and shall
remain upon and be surrendered with the premises as a part thereof at the
termination of this Lease, without compensation to the Tenant. The Tenant
further agrees to keep said premises and all parts thereof in a clean and
sanitary condition and free from trash, inflammable material and other
objectionable matter. If this lease covers premises, all or a part of which are
on the ground floor, the Tenant further agrees to keep the sidewalks in front of
such ground floor portion of the demised premises clean and free of
obstructions, snow and ice.
MECHANICS' LIENS
SIXTH.--In the event that any mechanics' lien is filed against the premises
as a result of alterations, additions or improvements made by the Tenant, the
Landlord, at its option, after thirty days' notice to the Tenant, may terminate
this lease and may pay the said lien, without inquiring into the validity
thereof, and the Tenant shall forthwith reimburse the Landlord the total expense
incurred by the Landlord in discharging the said lien, as additional rent
hereunder.
GLASS
SEVENTH.--The Tenant agrees to replace at the Tenant's expense any and all
glass which may become broken in and on the demised premises after the date
hereof.
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LIABILITY OF LANDLORD
EIGHTH.--The Landlord shall not be responsible for the loss of or damage to
property, or injury to persons, occurring in or about the demised premises, by
reason of any existing or future condition, defect, matter or thing in said
demised premises or the property of which the premises are a part, or for the
acts, omissions or negligence of other persons or tenants in and about the said
property. The Tenant agrees to indemnify and save the Landlord harmless from all
claims and liability for losses of or damage to property, or injuries to
persons, first occurring in or about the demised premises after the date hereof
except if due to Landlord's gross negligence or willful misconduct. Landlord
shall indemnify, defend and hold Tenant harmless from all claims and liability
for losses of or damage to property or injuries to persons arising out of
Landlord's gross negligence or willful misconduct.
SERVICES AND UTILITIES
NINTH.--Utilities and services furnished to the demised premises for the
benefit of the Tenant shall be provided and paid for as follows: water by the
Tenant; gas by the Tenant; electricity by the Tenant; heat by the Tenant;
refrigeration by the Tenant; hot water by the Tenant; sewer by the Tenant.
RIGHT TO INSPECT AND EXHIBIT
TENTH.--The Landlord, or its agents, shall have the right upon prior
written notice to Tenant, to enter the demised premises at reasonable hours in
the day or night to examine the same, or to make such repairs, additions or
alterations or run telephone wires as it shall deem necessary for the safety,
preservation or restoration of the improvements, or for the safety or
convenience of the occupants or users thereof (there being no obligation,
however, on the part of the Landlord to make any such repairs, additions or
alterations), or during regular business hours to exhibit the same to
prospective purchasers and put upon the premises a suitable "For Sale" sign. For
three months prior to the expiration of the demised term, the Landlord, or its
agents, may similarly exhibit the previous prospective tenants, and may place
the usual "To Let" signs thereon.
DAMAGE BY FIRE, EXPLOSION, THE ELEMENTS OR OTHERWISE
ELEVENTH.--In the event of the destruction of the demised premises or the
building containing the said premises by fire, explosion, the elements or
otherwise during the term hereby created or such partial destruction thereof so
as to render the premises wholly untenantable or unfit for occupancy or should
the demised premises be so badly damaged that the same cannot be repaired within
180 days from the happening of such damage, then and in that event the term
hereby created shall at the option of either the Landlord or Tenant be
terminated. If the damage to the property can be repaired in less than 180 days,
Landlord shall be required to make such repairs and the rent will be equitably
adjusted until any and all such repairs are completed; if the building is
damaged but the piers are intact and can be repaired within 180 days, Landlord
shall be required to repair such piers and the rent shall be equitably adjusted
until any and all such repairs are completed.
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OBSERVATION OF LAWS, ORDINANCES, RULES AND REGULATIONS
TWELFTH.--The Tenant agrees to observe and comply with all laws,
ordinances, rules and regulations of the Federal, State, County and Municipal
authorities applicable to the business to be conducted by the Tenant in the
demised premises.
SUBORDINATION TO MORTGAGES AND DEEDS OF TRUST
FOURTEENTH.--This lease shall be subject and is hereby subordinated to all
present and future mortgages or deeds of trust affecting the demised premises or
the property of which said premises are a part provided that Landlord shall
obtain from such mortgagees or other lienholders an acceptable nondisturbance
agreement in favor of Tenant as a condition thereof. Landlord shall obtain a
nondisturbance agreement from any existing leader as of the date hereof. The
Tenant agrees to execute, at no expense to the Landlord, any instrument which
may be deemed necessary or desirable by the Landlord to further effect the
subordination of this lease to any such mortgage, deed of trust or encumbrance.
VIOLATION OF COVENANTS, FORFEITURE OF LEASE, RE-ENTRY BY LANDLORD
SEVENTEENTH.--In case of violation by the Tenant of any of the covenants,
agreements and conditions of this lease, and upon failure to discontinue such
violation within fifteen days after notice thereof given to the Tenant (or such
longer period of time as shall be reasonably necessary to cure such default
provided Tenant is using good faith efforts to cure the same), this lease shall
thenceforth, at the option of the Landlord, become null and void, and the
Landlord may re-enter without further notice or demand. The rent in such case
shall become due, be apportioned and paid on and up to the day of such re-entry,
and the Tenant shall be liable for all loss or damage resulting from such
violation as aforesaid. No waiver by the Landlord of any violation or breach of
condition by the Tenant shall constitute or be construed as a waiver of any
other violation or breach of condition, nor shall lapse of time after breach of
condition by the Tenant before the Landlord shall exercise its option under this
paragraph operate to defeat the right of the Landlord to declare this lease null
and void and to re-enter upon the demised premises after the said breach or
violation.
NOTICES
EIGHTEENTH.--All notices and demands, legal or otherwise, incidental to
this lease, or the occupation of the demised premises, shall be in writing. If
the Landlord or its agent desires to give or serve upon the Tenant any notice or
demand, it shall be sufficient to send a copy thereof by registered mail,
addressed to the Tenant at the demised premises. Notices from the Tenant to
Landlord shall be sent by registered mail or delivered to the Landlord at the
place hereinbefore designated for the payment of rent, or to such party or place
as the Landlord may from time to time designate in writing.
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BANKRUPTCY, INSOLVENCY, ASSIGNMENT FOR BENEFIT OF CREDITORS
NINETEENTH.--It is further agreed that if at any time during the term of
this lease the Tenant shall make any assignment for the benefit of creditors, or
be decreed insolvent or bankrupt according to law, or if a receiver shall be
appointed for the Tenant and the same is not dismissed or removed by Tenant
within 60 days, then the Landlord may, at its option, terminate this lease,
exercise of such option to be evidenced by notice to that effect served upon the
assignee, receiver, trustee or other person in charge of the liquidation of the
property of the Tenant or the Tenant's estate, but such termination shall not
release or discharge any payment of rent payable hereunder and then accrued, or
any liability then accrued by reason of any agreement or covenant herein
contained on the part of the Tenant, or the Tenant's legal representatives.
HOLDING OVER BY TENANT
TWENTIETH.--In the event the Tenant shall remain in the demised premises
after the expiration of the term of this lease without having executed a new
written lease with the Landlord, such holding over shall not constitute a
renewal or extension of this lease. The Landlord may, at its option, elect to
treat the Tenant as one who has not removed at the end of his term, and
thereupon be entitled to all the remedies against the Tenant provided by law in
that situation, or the Landlord may elect, at its option, to construe such
holding over as a tenancy from month to month, subject to all the terms and
conditions of this lease, except as to duration thereof, and in that event the
Tenant shall pay monthly rent in advance at the rate provided herein as
effective during the last month of the demised term.
EMINENT DOMAIN, CONDEMNATION
TWENTY-FIRST.--If the entire property or any material part thereof shall be
taken by public or quasi-public authority under any power of eminent domain or
condemnation, this lease, at the option of the Landlord or Tenant shall
forthwith terminate and the Tenant shall have no claim or interest in or to any
award of damages for such taking. Other than for the value of its trade fixtures
and moving expenses and the unamortized cost of the leasehold alterations from
the time such alterations were made over the remaining term of the Lease,
including any renewal terms. In the event of any partial taking not involving
termination, the rent payable hereunder shall be equitably reduced to reflect
the diminished premises.
ARBITRATION
TWENTY-THIRD.--Any dispute arising under this lease shall be settled by
arbitration. The Landlord and Tenant shall each choose an arbitrator, and the
two arbitrators thus chosen shall select a third arbitrator. The findings and
award of the three arbitrators thus chosen shall be final and binding on the
parties hereto.
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DELIVERY OF LEASE
TWENTY-FOURTH.--No rights are to be conferred upon the tenant until this
lease has been signed by the Landlord, and an executed copy of the lease has
been delivered to the Tenant.
LEASE PROVISIONS NOT EXCLUSIVE
TWENTY-FIFTH.--The foregoing rights and remedies are not intended to be
exclusive but as additional to all rights and remedies the Landlord would
otherwise have by law.
LEASE BINDING ON HEIRS, SUCCESSORS, ETC.
TWENTY-SIXTH.--All of the terms, covenants and conditions of this lease
shall inure to the benefit of and be binding upon the respective heirs,
executors, administrators, successors and assigns of the parties hereto.
TWENTY-SEVENTH.--This lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in nowise be affected, impaired or excused
because Landlord is unable to supply or is delayed in supplying any service
expressly or impliedly to be supplied or is unable to make, or is delayed in
making any repairs, additions, alterations or decorations or is unable to supply
or is delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from so doing by reason of governmental preemption in connection with a
National Emergency declared by the President of the United States or in
connection with any rule, order or regulation of any department or subdivision
thereof of any governmental agency or by reason of the conditions of supply and
demand which have been or are affected by the war.
TWENTY-EIGHTH.--This instrument may not be changed orally.
TWENTY-NINTH.--Annexed hereto and made a part hereof is a Rider containing
Paragraph 30 through 41.
IN WITNESS WHEREOF, the said Parties have hereunto set their hands and
seals the day and year first above written
EGRET REALTY CORP.
By: /s/ Xxxxxxx Xxxxx (SEAL)
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President
Witness:
/s/ Xxxx Xxxxxxxxxx XXXXX MARINE CORP.
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/s/ [ILLEGIBLE] By: /s/ Xxxxxxx X. Xxxxx (SEAL)
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President
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Rider to Lease Dated as of
April 30, 1999
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EGRET REALTY CORP,
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XXXXX MARINE CORP.
30. A. It is the intention of the Landlord and the Tenant that the rent
herein specified shall be net to the Landlord in each year during the term of
this lease. Accordingly, all costs, expenses and obligations of every kind
relating to the operation of the leased property (except as otherwise
specifically provided in this lease) which may arise or become due during the
term of this lease shall be paid by the Tenant, and the Landlord shall be
indemnified by the Tenant against such costs, expenses and obligations. The net
rent shall be paid to the Landlord without notice or demand and without
abatement, deduction or setoff (except as otherwise specifically provided in
this Lease). The net rent shall be paid in equal monthly installments in advance
on the first day of each calendar month during the term of this lease. The rent
shall be at the rate of $399,996.00 per annum provided, however, that for the
first five years of the term the rent shall be at the rate of $351,996 per
annum.
B. The Tenant shall pay when due all real estate taxes and sewer and
water taxes covering the demised premises during the term of the Lease. Landlord
shall furnish to the Tenant copies of the bills and Tenant shall pay to Landlord
all tax sums due within fifteen (15) days of receipt of the tax bills. Such
taxes shall be prorated in the event the Lease begins or ends within any fiscal
year of the taxing authority. Tenant shall only be responsible for that portion
of any assessments, payable in installments, which become due during the term of
the Lease.
C. The rent shall be paid in equal monthly installments of $33,333.00 per
month ($29,333 per month for the first five years) in advance on the first day
of each calendar month for the term hereof. The rent shall be set off by monthly
payments, due to Xxxxx from Egret of $12,946.35 pursuant to a note from Egret to
Xxxxx as holder dated April 30, 1999, until the note is paid.
D. The term of this net Lease shall commence on April 30, 1999 and
continue for a period of ten (10) years terminating on April 29, 2009. Tenant
may, however, cancel the lease effective any time after five (5) years upon 30
days prior notice. In addition, Tenant shall have an option upon 30 days prior
notice to extend the lease for two periods of ten (10) years each. In the event
Tenant makes late payment of rent for a month then
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Tenant shall pay a late payment penalty equal to 0.5% of the payment in
question. In the event Xxxxx Marine Corp. makes early cancellation of the lease
then Tenant shall be penalized by forfeiture of the balance due on the 3245 Note
due from Landlord at the time of cancellation but otherwise shall have no
further liability to Landlord hereunder.
E. Tenant agrees to indemnify and hold harmless the 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 the Tenant's failure to surrender the Premises upon the
expiration of the Term, including any claims by any succeeding tenant unless
otherwise agreed by Landlord under Paragraph 32C or otherwise.
31. The premises demised consist of the following parcels:
PARCEL A (Block 1208, Lot 24) is described as follows: All that
certain piece or parcel of land situate, lying and being in the Borough of
Staten Island, City and State of New York, bounded and described as follows:
Beginning at a point on the Northerly record line of
Richmond Terrace, distant 1615.25 feet Westerly of the
intersection of the Southerly line of Harbor Road Extension
and the Northerly record line of Richmond Terrace. Said
point of beginning being further described as having the
coordinates of South 6587.184 and West 33874.887.
Running thence N 63 DEG. 28'59"W and along the Northerly
record line of Richmond Terrace, 211.53 feet; thence N
64 DEG. 58'50"W and still along said Northerly record line
of Richmond Terrace, 52.51 feet; thence the following
bearings and distances:
N 24 DEG. 29'5" E 50.11 feet
N 71 DEG. 19'44" E 72.72 feet
N 43 DEG. 04'23" E 61.69 feet
N 03 DEG. 36'16" W 41.95 feet
N 86 DEG. 23'44" E 68.00 feet
N 07 DEG. 06"11" E 530.93 feet to the
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Pier and Bulkhead Line as approved by the Secretary of War
January 4, 1890; thence S 55 DEG. 44' 32" E and along
said Pier and Bulkhead Line, 94.70 feet; thence the
following bearings and distances:
S 06 DEG. 24'34" W 627.28 feet
S 00 DEG. 43'26" E 72.29 feet
S 33 DEG. 06'27" W 64.06 feet to the
Northerly record line of Richmond Terrace and the point or place of
beginning.
Subject to the widening of Richmond Terrace as adopted by the City of
New York, January 10, 1974.
Containing 92,362 sq. ft. or 2.1203 acres.
Together with a 2 story building on the premises known as 0000
Xxxxxxxx Xxxxxxx.
Coordinates and bearings are in the system as established by the
United States Coast and Geodetic Survey for the Borough of Staten Island.
PARCEL B (Block 1208, Lot 26) is described as follows: All that
certain piece or parcel of land situate, lying and being in the Borough of
Staten Island, City and State of New York, bounded and described as follows:
Beginning at a point on the Northerly record line of Richmond Terrace,
distant 1879.29 feet Westerly of the intersection of the Southerly
line of Harbor Road Extension and the Northerly record line of
Richmond Terrace. Said point of beginning being further described as
having the coordinates of South 6424.936 and West 34090.966.
Running thence N 64 DEG. 58'50"W and along the Northerly
record line of Richmond Terrace, 120.55 feet; thence
N 69 DEG. 29'05"W and still along said Northerly record line
of Richmond Terrace, 11.85 feet; thence the following
bearings and distances:
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N 29 DEG. 45'23" E 308.41 feet
N 40 DEG. 24'55" E 25.00 feet
N 07 DEG. 06'11" E 455.72 feet to the
Pier and Bulkhead Line as approved by the Secretary of War
January 4, 1890; thence S 55 DEG. 44' 32" E and along
said Pier and Bulkhead Line, 190.43 feet, thence the
following bearings and distances:
S 07 DEG. 06'11" W 530.93 feet
S 86 DEG. 23'44" E 68.00 feet
S 03 DEG. 36'16" W 41.95 feet
S 43 DEG. 04'23" W 61.69 feet
S 71 DEG. 19'44" W 72.72 feet
S 24 DEG. 29'50" W 50.11 feet to the
Northerly record line of Richmond Terrace and the point or place of
beginning.
Subject to the widening of Richmond Terrace as adopted by the City of
New York, January 10, 1974.
Containing 131,073 sq. ft. or 3.0549 acres.
Coordinates and bearings are in the system as established by the
United States Coast and Geodetic Survey for the Borough of Staten Island.
32. A. Tenant's obligation to pay rent shall begin on the 29th day of May
1999. 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.
B. If the Tenant shall fail to pay rent, in whole or in part, on or
before the seventh day of any month during which the same shall become due
(including insurance, taxes or other charges), Tenant shall pay Landlord late
charges computed in accordance with paragraph 30D above. 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. The Landlord's
demand for and collection of late charges shall not be deemed a waiver of any
remedies that Landlord may have
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under this Lease by summary proceedings or otherwise. Rent shall be deemed
received (a) when delivered to the Landlord, if the Tenant's representative
shall personally deliver the same to Landlord's office, (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 the Landlord, or (c) on the date
delivered if by recognized overnight delivery service.
C. If the Tenant shall fail to vacate and surrender the premises on the
last day of the term without Landlord's permission, Tenant shall pay Landlord
monthly rent at a rate equal to 150% 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.
D. If Landlord shall institute summary proceedings for the non-payment of
rent and is successful, Tenant shall pay Landlord's reasonable attorneys' fees.
Such fee shall be deemed rent and Landlord, at its option, may include such
amount in said proceedings as an unpaid item.
E. 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 except to the extent of any sums so
retained by Landlord.
F. If Tenant shall fail to pay rent when due and such failure shall
continue for 30 days after notice from Landlord, then Landlord shall be entitled
to terminate this Lease and Landlord shall be entitled to recover the amount by
which the present value of the rent due for the remainder of the then current
term (assuming that Tenant has exercised any right of early termination of the
earliest possible time) exceeds the greater of the amount of rent or other
earnings Landlord receives in respect of the demised premises and the present
value of the fair market rental value of the premises for such period of time.
33. A. At its own cost, Tenant shall obtain insurance against claims for
personal injuries and property damage under a policy of Commercial General
Liability (and Bumbershoot Liability or other Excess policy forms), with limits
of not less than $10,000,000 per occurrence in respect of personal injuries, and
$50,000 per occurrence in respect of personal injuries, and $50,000 per
occurrence for fire damage.
B. At its own cost, Tenant shall obtain all-risk casualty insurance on
the leased premises described herein. Such policy coverage shall include but not
be limited to losses from: fire, vandalism, malicious mischief, flood,
earthquake, backup of sewers and drains, sprinkler, leakage, and other extended
coverage type perils. Tenant's policy shall have blanket limits of not less than
$4,750,000 and shall name both Tenant and Landlord as Loss Payees, as their
interests appear.
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C. At its own cost Tenant shall maintain Workers Compensation coverage
for its employees in accordance with New York State and/or U.S. Xxxxxxxxx &
Harborworkers Act statutes, as applicable.
D. At its own cost Tenant shall obtain Business Automobile Liability
insurance with limits of not less than $1,000,000 per occurrence.
E. Tenant shall obtain the insurance policies described in A through D
above at its sole cost, and shall maintain such policies in full force and
effect throughout the term of this lease and any extensions thereto. All such
insurance shall be issued by insurance companies having an A.M. Best's "A"
rating or equivalent, and licensed to do business in the State of New York. If
Tenant shall fail to procure, place and/or maintain any such insurance policy
and/or pay any and all premiums and charges therefor, Landlord may (but shall
not be obligated to) do so, and in such event Tenant shall pay the amount
thereof, plus an administrative charge equal to ten (10%) percent of such
amount, as rent to Landlord on demand.
F. Each policy of insurance which Tenant is required to maintain under
this Lease shall clearly specify by endorsement that (a) such policy may not be
cancelled or materially charged in any manner which affects the Landlord's
interests thereunder without thirty (30) days prior written notice to Landlord
by certified or registered mail, return receipt requested, and (b) the policy is
taken out at the request of Tenant, which is responsible for all premiums on
said policy.
G. Tenant acknowledges and agrees that if any loss or damage to the
premises covered by the aforementioned policies shall occur, Tenant shall pay
the deductible and/or coinsurance, if any.
H. Each of the aforementioned policies shall name Landlord as a party
insured, subject to agreement by the insurer. If such agreement cannot be
obtained, then Landlord shall be named an additional assured, and the policy or
policies shall be endorsed to provide a waiver of the insurer's rights of
subrogation against Landlord.
I. No later than twenty (20) days following the commencement of this
Lease, Tenant shall furnish Landlord with certificates confirming the foregoing
insurance contracts, each of which shall provide for thirty (30) days' written
notice to Landlord of cancellation or material modification thereof.
34. Anything to the contrary notwithstanding, Tenant, at its own cost and
expense, shall take good care of the demised premises, the equipment thereof,
and keep the same in good and substantial repair and condition, and shall make
and do all repairs of any and every kind and nature that may be necessary or
required to the exterior, interior, sidewalks, doors, plumbing and electrical
systems, heating and cooling units, piers, wharves, pilings and bulkheads, roof,
windows and window guards of the demised premises, regardless of the extent
thereof and
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whether the same be structural, ordinary, extraordinary or of any other nature,
and regardless of how the same may be necessitated; and shall, in the event
anything required to be repaired becomes too worn to be repaired, replace and
renew the same with like kind and quality so that at all times the demised
premises shall be in substantially the same order, condition and repair as
exists as of the date hereof, reasonable wear and tear and damage by casualty
excepted; provided, however, that Landlord shall be solely responsible for
making any repairs or replacements necessitated by Landlord's gross negligence
or willful misconduct at its sole cost and expense and provided further that
with respect to any structural or capital repairs or replacements as a result of
any condition which impairs the use of the premises, Landlord shall be
responsible for 100% of such repairs during the first year of the initial term
of the Lease, decreasing by 10% during each subsequent year to zero at the end
of the initial term. Nothing contained in this Lease shall be deemed or
construed to impose on the Landlord any obligation, responsibility or liability
whatsoever for the care, supervision or repair of the demised premises or any
part thereof, and at the expiration or sooner termination of this Lease, the
Tenant will surrender and deliver up to Landlord possession of the leased
premises in as good order and condition as at the commencement of the term
hereof, reasonable wear and tear expected.
Subject as aforesaid, the Tenant shall also put, keep and maintain the
piers, wharves, pilings and bulkheads of the premises in the same condition as
received at the commencement of this lease, reasonable wear and tear and damage
by casualty excepted.
35. A. Tenant, at its own cost and expense, shall have the right to make
alterations and additions to the demised premises, provided the same are made in
good, workmanlike manner, in full compliance with all applicable municipal,
state, federal and departmental ordinances, statutes, regulations, codes and
orders, and Tenant does not suffer any lien, mechanical or otherwise, to be
filed against the demised premises or the premises of which the demised premises
are a part, and if any are filed, cause the same to be removed by bond within
thirty (30) days after filing, to wit:
(i) If the alterations are structural, the specifications and plans
for such alterations are to be approved by the Landlord prior to construction,
which consent shall not be unreasonably withheld.
(ii) All of said alterations, additions and systems (other than trade
fixtures of Tenant or personalty) shall become the property of the Landlord
without payment or offset, and be surrendered with the premises at the
expiration of this Lease. However, if the Landlord elects otherwise by serving
on Tenant a written notice at the time it approves Tenant's plans and
specifications, such alterations, additions and systems as the Landlord shall
elect shall be removed by the Tenant, and Tenant, at its own cost and expense,
shall restore the premises to a good, safe condition prior to the expiration or
other termination of the term of this Lease.
B. No approval of alterations by Tenant shall in any way be deemed to be
an agreement by Landlord that such alterations comply with applicable legal or
insurance carrier
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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.
36. Tenant shall maintain the heating and air conditioning system in good
working order, normal wear and tear expected, and deliver them in such condition
at the expiration or other termination of this Lease. Benefit of warranties will
be provided to both Tenant and Landlord. Landlord hereby represents and warrants
to Tenant that, as of the date hereof, the premises including all buildings and
improvements constructed thereon (i) are in good operating condition, and free
of any defects and (2) are in compliance with all applicable laws, codes,
ordinances and governmental regulations.
37. If the Tenant shall default (a) in the timely payment of rent and such
default shall continue or be repeated for two (2) consecutive months or for a
total for four (4) months in any period of twelve (12) months, or (b) in the
performance of any particular term, condition or covenant of this Lease more
than six times in any period of six (6) 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 (10) days' written
notice to Tenant, without affording Tenant an opportunity to cure such further
default.
38. 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 and each term and provision of this
Lease shall be valid and enforced to the fullest extent permitted by law.
39. This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
40. 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 setoff or recoupment
unless such interruption or malfunction is due to Landlord's gross negligence or
willful misconduct. 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.
41. In the event the Landlord desires to sell the subject premises, the
Landlord, upon receipt of a bona fide offer from a third party shall give notice
to the Tenant at the address set forth above of such third party offer and the
Tenant may within fifteen (15) days of receipt of said
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notice submit to Landlord a bona fide counteroffer for the acquisition of the
subject premises. If the Tenant fails to exercise its right of first refusal
within the fifteen (15) days provided for, then Landlord may sell to a third
party without further notice to the Tenant.
EGRET REALTY CORP.
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
President
XXXXX MARINE CORP.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
President
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