Exhibit 10(m)(i)
AGREEMENT OF LEASE, made as of this 14th day of January, 2002, by and
between Garden Xxxxxx Associates LP, with offices at c/o Xxxx Realty Co., 00-00
00xx Xxxxxx, Xxxxxxx, XX 00000, (hereinafter referred to as "Landlord"), and
American Medical Alert Corporation, with offices at 0000 Xxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000, (hereinafter referred to as "Tenant").
WITNESSETH: Landlord and Tenant hereby covenant and agree as follows:
SPACE
1. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
approximately 11,000 square feet on the first (1st) floor ("Demised Premises")
in the building known as 00-00 00xx Xxxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx
(hereinafter referred to as the "Building") (see floor plan of the Demised
Premises annexed hereto as exhibit "A"). In addition to occupying the Demised
Premises, Tenant shall have the right to use in common with other tenants in the
Building, all common areas and public portions thereof.
TERM
2. The term of this lease shall be for a period of fifteen (15) years and
shall commence on the "Commencement Date", as herein defined, and terminate
fifteen (15) years after the Commencement Date ("Term Expiration Date"). The
Commencement Date shall be the last of the following to occur: (1) the date on
which Landlord gives notice to Tenant that the work to be performed by Landlord
to the Demised Premises, as described at Article 7(B) herein, has been
"substantially completed" and the Demised Premises are delivered in such
condition. The term "substantially completed" shall mean completion of the work
in section 7(B) but for minor insubstantial details of construction and
mechanical adjustments (i.e. so-called "punch list" items); (2) the date
Landlord shall have obtained a temporary certificate of occupancy ("t/c/o") for
the Building which authorizes and permits the occupancy by Tenant of the
Premises for the use permitted in this Lease; and (3) the date on which the
following construction work has been completed: (a) the bathroom in the common
areas; (b) the staircase; (c) the hallway; and (d) the elevator. Promptly
following the determination of the Commencement Date, Landlord and Tenant shall
execute an agreement setting forth both the Commencement Date and Term
Expiration Date of this lease. In the event the term of this lease begins on the
first day of a month, the first lease year shall end on the first anniversary of
the last day of the preceding month. If the term of this lease begins on a date
other than the first day of a month, the Tenant shall pay a pro rata portion of
the rent from such date through and including the last day of such month and the
First Lease Year shall end on the first anniversary of the first day of the
preceding month. Each succeeding Lease Year shall end on the anniversary date of
the previous Lease Year. Notwithstanding the above, Tenant shall have the right
(but not the obligation), if it so elects, to waive the requirement of item (2)
above, such that Tenant may take occupancy of the Demised Premises and the
Commencement Date shall commence prior to Landlord's obtaining a t/c/o. Access
to the Demised Premises by Tenant's architects, engineers and other
professionals (during business hours and on reasonably prior notice) for
purposes of preparing plans, specifications and other drawings shall not be
deemed "occupancy" by Tenant thus triggering the Commencement Date and Tenant's
obligation to pay rent.
RENT
3. (A) The basic annual rent or fixed minimum rent is as follows:
LEASE YEAR ANNUAL RENT MONTHLY RENT
1 $269,500.00 $22,458.00
2 $277,585.00 $23,132.00
3 $285,913.00 $23,826.00
4 $294,490.00 $24,541.00
5 $303,325.00 $25,277.00
6 $312,425.00 $26,035.00
7 $321,798.00 $26,817.00
8 $331,452.00 $27,621.00
9 $341,396.00 $28,450.00
10 $351,638.00 $29,303.00
11 $362,187.00 $30,182.00
12 $373,053.00 $31,088.00
13 $384,245.00 $32,020.00
14 $395,772.00 $32,981.00
15 $407,645.00 $33,970.00
(B) During the term of this Lease, the basic annual rental shall commence
on the Commencement Date and shall be payable in equal monthly installments in
advance on the first day of each calendar month during the term of this lease at
the office of the Landlord, except that Tenant shall pay the first monthly
installment upon the signing of this Lease. Tenant shall pay the rent as above
stated and as hereinafter provided, without any set off or deduction whatsoever.
In any case in which the basic annual rent or additional rent, as hereinafter
defined, is not paid within ten (10) days of notice that it was not paid upon
the day when same is due, Tenant shall pay a late charge equal to 4 cents for
each dollar so due. In the event the basic annual rent or additional rent is not
paid within thirty (30) days of when same is due, Tenant shall also pay interest
thereon at the lease interest rate. The term "Lease Interest Rate" shall mean
interest at the rate of twelve (12%) percent per annum provided such rate does
not violate the usury laws of New York State. If such rate violates such usury
laws, then it shall be 1/2% below the maximum permissible rate.
(C) Intentionally Omitted.
(D) Tenant covenants and agrees that all fixed minimum rent and additional
rent due and payable by Tenant under this Lease are unconditional obligations on
the part of Tenant, and
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shall be paid to Landlord whenever the same shall be due and payable without
setoff or deduction of any kind.
(E) Tenant further covenants and agrees that Tenant shall not be entitled
to any abatement of fixed minimum rent or additional rent payable under this
lease, or diminution of same in any summary dispossess, non-payment of rent or
holdover proceedings, by reason of any breach by Landlord of any covenants
contained in this lease on Landlord's part to be performed. In any such summary
dispossess, non-payment of rent or holdover proceeding, Tenant may not assert a
counterclaim, nor have the right of set-off by way of damages or recoupment by
reason of Landlord's failure to perform any of the terms, covenants or
conditions contained in this lease on Landlord's part to be performed, but
Tenant shall be relegated to an independent action for damages, and such
independent action shall not at any time be joined or consolidated with any
summary dispossess, non-payment of rent or holdover proceeding.
SECURITY
4. (A) Tenant shall deposit with Landlord upon execution of this Lease the
sum of $44,916.00 (two times the monthly rent) as and for Security for the
faithful performance and observance by Tenant of Tenant's obligations under this
lease.
(B) Tenant shall be entitled to interest on its security deposit at the
rate of 2.5% per annum.
(C) Tenant agrees 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 fixed minimum rent and additional rent, Landlord may use,
apply or retain the whole or any part of the Security deposited and interest
earned thereon, if any, to the extent required for the payment of any fixed
minimum rent and additional rent, or for any sum which Landlord has expended 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 reletting of the premises, whether such damage or deficiency
accrued before, on or after summary proceedings or other re-entry by Landlord,
with interest thereon from the date of expenditure of loss, as the case may be.
(D) In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this lease, the Security, or
so much thereof as shall then remain on deposit with Landlord, shall be returned
to Tenant within ten business days after the
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date fixed as the end of this lease and after delivery of entire possession of
the Demised Premises to Landlord in accordance with the provisions of this
lease.
(E) In the event of a sale of the Demised Premises, Landlord shall have the
right to transfer the Security to the vendee or lessee and Landlord, provided
such vendee or lessee assumes the obligations of Landlord under this Lease and,
upon making such transfer and confirming in writing to Tenant that Landlord has
done so and who such vendee or lessee is and what his, her or its address is,
thereupon shall be deemed released by Tenant from all liability for the return
of the Security and Tenant agrees to look solely to the new landlord for the
return of the Security.
(F) Tenant further agrees that it will neither assign nor encumber, nor
attempt to assign or encumber, the monies deposited hereunder as Security and
that neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
(G) Tenant further agrees that if for any reason (including the reason that
Landlord has elected to use, apply or retain the whole or any part of the
Security pursuant to this Article), the Security at any time remaining on
deposit with Landlord shall be less than two times the amount of the then
monthly rent, Tenant, upon written demand and by no later than ten days
thereafter, shall deposit with Landlord cash in an amount sufficient to increase
the then Security to the then required amount of Security.
USE
5. The Tenant shall use and occupy the Demised Premises only for general,
executive and administrative offices (including a 24 hour "call" center) in
connection with the Tenant's business and that of its affiliates, and for no
other purpose.
SERVICES
6. (A) Landlord will provide base board heat to the Demised Premises,
during business hours of 8:00 a.m. to 6:00 p.m. on weekdays and from 8:00 a.m.
to 1:00 p.m. on Saturdays, excluding all legal holidays. Landlord shall install
a sub-meter to measure Tenant's actual consumption of electricity for ordinary
office use within the Demised Premises. Ordinary office use shall include but
not be limited to lighting, operation of office equipment, typewriters, word
processors, personal computers, telephones, facsimile machines, and photocopy
machine. Ordinary office use, for purposes herein, shall not include the HVAC
system. Tenant shall pay
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for it's actual consumption as measured by said sub-meter for ordinary office
use (based on the actual cost from the utility company without any premium
charged by Landlord). In consideration of the sum of $10,000.00, said sum to be
paid by Tenant to Landlord upon execution of this agreement, Landlord agrees
that it shall perform such work (including rerouting the existing ducts and
vents and providing such additional ducts and vents as are necessary) to ensure
that the existing 40 ton HVAC unit currently servicing the 1st floor, will
solely and exclusively services the Demised Premises. Landlord agrees that the
aforesaid HVAC work shall be performed prior to the Commencement Date. Tenant
shall have a thermostat within the Demised Premises which will permit Tenant to
control the HVAC unit on a 24 hour/ 7 days a week basis. With respect to
electric current for said HVAC system, Landlord shall install a meter to measure
actual consumption thereof and Tenant shall pay 100% of the xxxx as measured
thereby (based on the actual cost from the utility company without any premium
charged by Landlord). Landlord acknowledges that the primary source of heat
throughout the Building and for the Demised Premises is gas heat which is being
provided by Landlord via a base board heating system servicing the entire
Building. Tenant acknowledges that it shall be obligated to pay for electricity
for any heat furnished through the HVAC system to the Demised Premises to
supplement the gas heat being provided by Landlord. Tenant will also pay it's
proportionate share ("Tenant's Proportionate Share") of the gas xxxx for the
Building (inclusive of the Demised Premises) for gas actually used in connection
with the heating of the Building. Tenant's proportionate share, as referred to
herein and elsewhere in this lease, shall be 6.29%. The Tenant's proportionate
share is subject to change based upon any change in the square footage of the
rentable area of the Building and/or the Demised Premises. Tenant's
Proportionate Share shall mean the fraction, the denominator of which is the
rentable area of the Building in square feet and the numerator of which is the
Demised Premises's rentable area in square feet which is equal to 11,000 square
feet. Landlord represents that the rentable area for the building as of the date
of this lease is 175,000 square feet. The above sums shall be paid within ten
(10) days following the billing thereof by Landlord. Landlord will furnish
copies of all such bills to Tenant promptly upon receipt thereof.
(B) Landlord will provide cleaning services of and to the public or common
areas of the Building, which will be performed by Landlord at its sole cost and
expense, between the hours of 5:00 p.m. and 6:00 a.m. on Monday through Friday,
legal holidays excepted. Cleaning of Demised Premises shall be performed by
Tenant at Tenants cost and expense. Trash will be delivered to a space
designated by Landlord. At Tenant's option, Landlord shall provide cleaning
services of and to the Demised Premises between the hours of 5:00 p.m. and 6:00
a.m. on Monday through Friday, legal holidays excepted, at a cost of One ($1.00)
Dollar per sq. ft.
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annually, payable on a monthly basis, as additional rent, during such period in
which such services are rendered.
(C) Landlord will furnish elevator service to the Demised Premises twenty
four hours a day, seven days a week.
(D) Landlord will furnish adequate hot and cold tempered water for lavatory
and drinking purposes twenty four hours a day, seven days a week.
(E) During hours other than those aforementioned and provided Landlord
consents to same, any services heretofore enumerated will be provided as
overtime services, to be billed at overtime rates at the sole cost and expense
of Tenant requesting same.
LANDLORD'S REPAIRS AND INITIAL WORK
7. (A) Landlord will make all the repairs to and provide the maintenance
for the public areas of the Building; the roof and structure thereof; and to the
building-wide systems inclusive of the plumbing, electrical, HVAC and mechanical
systems servicing the Demised Premises, except for such repairs and maintenance
to or with respect to same as may be necessitated by reason of the negligence,
improper care or use of such premises and facilities by Tenant, its agents,
employees, licensees or invitees, in which event repairs shall be made by
Landlord at Tenant's expense. There shall be no allowance to Tenant for a
diminution of rental value and no liability on the part of Landlord by reason of
inconvenience, annoyance or injury to business arising from Landlord making any
repairs, alterations, additions or improvements in or to any portion of the
Building or to the Demised Premises, or in or to the fixtures, appurtenances or
equipment thereof, except if due to Landlord's willful acts or that of its
agents, contractors or employees and provided the Landlord's acts do not
materially interfere with Tenant's ingress/egress from the Demised Premises.
Landlord shall perform maintenance and other work to be performed by Landlord
using reasonable efforts to minimize interference with Tenant's business.
(B) Landlord agrees to prepare and complete the demised premises on a
"build to suit" basis, at its sole cost and expense. The build-out shall comply
with Tenant's designs, to be approved by Landlord (which approval shall be
subject to the provisions of Section 17 of this Lease). Landlord's work shall
consist of that set forth at Schedule "B" herein, inclusive of removing
partitions where reasonably required by Tenant in accordance with its plans and
specifications. No other initial work shall be required to be performed by
Landlord. In lieu of Landlord performing the ceiling, lighting and carpeting
work to the Demised Premises, at
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Tenant's election, Tenant shall be granted a one time credit of fifty (.50)
cents per square foot of ceiling tiles, fifty ($50.00) dollars per lighting
fixture and five ($5.00) dollars per yard of carpet which one time credit shall
be applied against the first monthly rent due and owing following Tenant's
election.
TENANT'S REPAIRS
8. Tenant shall take good care of the interior of the Demised Premises and
perform any and all maintenance and repairs, as needed therein, except if (i)
the repair is required as a result of Landlord's negligence or (ii) its work for
which the Landlord is obligated to perform under 7(A) above. Landlord may, after
fifteen (15) days notice to Tenant, perform said repairs, at the expense of
Tenant, if Tenant fails to do so. In the case of an emergency, no notice shall
be required.
PARKING
9. Landlord shall provide Tenant with eleven (11) parking spaces, as
designated by Landlord, in a newly constructed parking facility on-site at no
cost or expense to Tenant. In the event such parking is unavailable to Tenant at
the Commencement Date, Landlord will furnish, at no cost and expense to Tenant,
valet parking to Tenant's employees, directly in front of or adjacent to the
Building.
DIRECTORY
10. Landlord, in its discretion as to size, location and appearance, will
furnish in the lobby of the Building a directory which will contain a Tenant
List. Tenant shall have the right to install its own directory in the lobby of
each floor of the Building in which Tenant occupies space, but must first obtain
Landlord's prior written consent, not to be unreasonably withheld.
11. Intentionally Omitted.
INSURANCE
12. (A) Tenant, at its expense, shall maintain at all times during the term
of this Lease, public liability insurance with respect to the Demised Premises
and the conduct or operation of its business therein, naming Landlord as an
additional insured, and with limits of $1,000,000 for property damage and not
less than $2,000,000 for bodily injury or death to any number of persons in any
one occurrence.
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(B) Tenant shall promptly deliver to Landlord a Certificate of Insurance
for such fully paid for policies prior to occupancy, and Tenant shall deliver to
Landlord such Certificate of Insurance for a renewal policy at least thirty (30)
days before the expiration of any existing policy. All such policies shall be
issued by companies licensed to do business in the State of New York with an "A"
Best rating and all such policies shall contain a provision whereby the same
cannot be canceled or materially modified unless Landlord is given at least
twenty (20) days prior written notice of such cancellation or modification,
including, without limitation, any cancellation resulting from the non-payment
of premiums.
(C) Tenant shall maintain insurance coverage in an amount adequate to cover
the cost of replacement of all of Tenant's personal property, fixtures,
furnishings, and equipment.
REAL ESTATE TAX ESCALATION
13. (A) For purposes of this Article, the following definitions shall
apply:
1) The term "Tax Year" shall mean the fiscal year, July 1 to June 30
(or such other fiscal year as hereafter may be duly adopted by the taxing
authorities for real estate tax purposes).
2) The term "Escalation Year" shall mean any Tax Year during the term
of this Lease commencing with Tax Year commencing July 1, 2002.
3) The term "Base Tax Year" shall mean the July 1, 2001 to June 30,
2002 Tax Year.
4) The term "Base Taxes" shall mean the Taxes computed by the taxing
jurisdiction for the Base Tax Year.
5) The term "Taxes" shall be deemed to include all real estate taxes
assessed upon or with respect to the tax lot upon which the Building is situated
and imposed by the taxing authorities. If, due to any change in the method of
taxation, other taxes are imposed or substituted for, or levied against Landlord
or any owner of the Building or the real property, in lieu of any real estate
taxes upon or with respect to the real property now being assessed, such tax
shall be included in the term Taxes for the purposes of this Article, except
taxes such as franchise, income, or revenue tax on Landlord's rental income
receipts.
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(B) If Taxes payable in any Escalation Year shall be in such amount as
shall constitute an increase above Base Taxes, Tenant shall pay Tenant's
Proportionate Share of such increase. Increases in Taxes, payable by reason of
reductions in Landlord's tax abatement shall be deemed tax increases subject to
provision of this Escalation Clause unless such reduction is the direct result
of landlord's intentional or negligent acts.
(C) If the sum of the installments of Taxes payable by Landlord in any
Escalation Year exceeds the Landlord's Base Taxes for the Base Tax Year, the
annual rental reserved hereunder for such Escalation Year shall be increased by
Tenant's Proportionate Share of the amount of such excess and shall be payable
during such Escalation Year in monthly amounts equal to 1/12th of the amount of
such increase (as reasonably estimated by Landlord if not finally determinable
on the first day of such Tax Year, subject to later adjustment).
(D) If a final determination shall be rendered reducing the assessed
valuation of the land and/or Building for the Landlord's Base Tax Year, the
assessed valuation as so reduced shall, for all purposes be the assessed
valuation used in computing the Landlord's Base Taxes under section (4) of
sub-paragraph (A) above. If said determination is rendered subsequent to the
submission by Landlord to Tenant of any statements referred to in sub-paragraph
(E) below, Landlord shall submit revised statements to Tenant based upon the
reduced assessed valuation and Tenant shall, within thirty (30) days after
submission of said revised statements, pay Landlord any additional rent due by
reason of such recomputations which computation shall be adequately set forth in
the said revised statements.
(E) Landlord shall from time to time during the term of this Lease, after
the respective amounts of Taxes for the periods in question become
ascertainable, submit to Tenant statements setting forth the computation of any
increase or decrease in rental. Landlord's failure to submit a statement or
statements pursuant to this sub-paragraph or sub-paragraph (D) above shall not
constitute a waiver of any rent increases payable by Tenant under this paragraph
provided, however, that such additional rental shall only become due and payable
following Tenant's receipt of such statement from Landlord. Landlord may submit
its statements (or estimates thereof) separately and at different times, but the
payment of additional rent shall nevertheless be made in the manner and within
the time limits herein above set forth with respect to each statement so
submitted.
(F) If the term of this Lease expires on a day other than the last day of
the Tax Year, rental increases pursuant to subparagraph (C) above shall be
pro-rated as of said expiration date.
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(G) In the event of a taking, pursuant to the power of eminent domain, of a
portion of the Building under such circumstances as shall not result in a
termination of this Lease, then from and after the date of such taking (i) the
Base Tax Amount shall be deemed reduced in proportion to the reduction in the
number of square feet of rentable space in the Building resulting from such
taking, and (ii) Tenant's Proportionate Share shall be adjusted so as to be
equal to a fraction of which the denominator is the reduced number of square
feet of rentable space in the building and the numerator is the number of square
feet of space leased to Tenant following such taking.
(H) The provisions of this paragraph shall survive the expiration or
termination of this Lease until a final adjustment has been made for the Tax
Year in which the Expiration Date occurs.
(I) The statements of the adjustment to be furnished by Landlord as
provided in sub-paragraph (E) shall be based on data submitted by Landlord to a
firm of Certified Public Accountants (who may be the firm now or then currently
employed by Landlord for the audit of its accounts). In the accountant's opinion
based on the date submitted, such statements shall present fairly the escalation
adjustment for the periods represented thereby.
(J) Any delay or failure of Landlord, beyond January of any year, in
computing the billing for the rent adjustments herein above provided, shall not
constitute a waiver of or in any way impair the continuing obligation of Tenant
to pay such rent adjustments hereunder upon Tenant's receipt of such statements.
(K) Notwithstanding any expiration or termination of this Lease prior to
the Lease expiration date (except in the case of a cancellation by mutual
agreement, termination upon casualty or condemnation) Tenant's obligation to pay
rent as adjusted under this Article shall continue and shall cover all periods
up to the Lease expiration date, and shall survive an expiration or termination
of this Lease until such amounts previously accruing have been paid.
(L) If the first or final lease year during which escalations may occur
shall contain less than twelve (12) months, the additional rental under this
Lease shall be prorated.
(M) Notwithstanding anything to the contrary contained in this Section 13,
in the event the Building construction and improvements has not been completed
and the building is not
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substantially occupied, and therefore the Building shall not have been fully
assessed by the Base Tax Year set forth in 13(A)(3), then the Tax Year in which
the Building shall be fully assessed shall be deemed to be the Base Tax Year and
the Escalation Year shall mean any Tax Year during the term of the Lease
commencing following the new Base Tax Year as determined in accordance with this
Section 13(M).
TAX ABATEMENT
14. (A) Landlord represents that it has filed the necessary paperwork in
connection with obtaining a real estate tax abatement under the Industrial
Commercial Incentive Program (ICIP) (including the filing of the ICIP
applications). Landlord agrees to fully cooperate with Tenant and to provide
Tenant, at Tenant's expense, with any documents necessary in order for Tenant to
apply for and receive 100% of the benefits available to Tenant under the New
York City Commercial Expansion Programs, including without limitation, the
Relocation Employment Assistance Program, the Energy Cost Savings Program and
the Rent Abatements for Commercial and Industrial Tenants ("Title 4-A") and any
other business incentive programs for which Tenant may be eligible to receive
benefits. In connection with such benefit programs, upon request, Landlord
agrees to provide Tenant with the final certificate of eligibility and
certificate of completion. If the benefits are in the form of a refund payable
to Landlord, Landlord shall endorse over, or otherwise pay, to Tenant 100% of
such refund, upon Landlord's receipt of such refund. Landlord, in no event,
guarantees approval of benefits under these programs, except Landlord shall be
responsible for the loss of any benefits due to or arising out of landlord's
negligence or willful misconduct. Landlord also represents and is informing
Tenant that:
1) an application for abatement of real property taxes pursuant to Title
4-A will be made for the Demised Premises;
2) the rent including amounts payable by the Tenant for real property taxes
will accurately reflect any abatement of real property taxes pursuant to Title
4-A;
3) since the Term of the Lease exceeds ten (10) years, at least twenty five
($25.00) dollars per square foot must be spent on the improvements to the
Premises and the common areas, provided however, if by the sixtieth (60th) day
following the rent commencement date, the Tenant employs in the Premises 125 or
fewer employees in the Premises, at least two dollars and fifty cents ($2.50)
per square foot must be spent on improvements to the Premises and the common
areas.
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4) all abatements granted shall be revoked if, during the benefit period,
real estate taxes, water or sever charges or other lienable charges are unpaid
for more than one year, unless such delinquent amounts are paid as provided in
subdivision four hundred ninety-nine-ff of Title 4-A.
5) on the date of this Lease, Tenant's Proportionate Share of the Building
(as defined above) is 6.29%.
(B) Tenant agrees to (i) report to the Landlord the number of workers
permanently engaged in employment in the space leased, the nature of each
worker's employment and the New York City residency of each worker and (ii)
provide access to the Premises by employees and agents of the department
overseeing the ICIP program at all reasonable times at the request of the
Landlord.
(C) Landlord agrees that Tenant shall not be required to pay taxes or
charges which become due because of the willful neglect or fraud by the Landlord
in connection with the ICIP Program, or otherwise relieve or indemnify the
Landlord from any personal liability arising under the Administrative Code
11-265 except where imposition of such taxes, charges or liability is occasioned
(D) Notwithstanding anything contained in this Lease to the contrary,
Landlord consents and agrees that Tenant's subsidiaries, HCI Acquisition Corp.
(H - Link On Call) and/or Safecom, shall have the right to occupy and use,
during the term of the Lease, a portion of the Premises, for its general,
executive and administrative offices in connection with its business.
(E) Landlord agrees to such modification to the provisions of this
paragraph 14 as are required by the applicable governmental agency in order to
obtain the benefits referred to in paragraph 14(A) above at no cost and expense
to Landlord.
ADDITIONAL RENT
15. In the event the Tenant shall fail to pay Landlord the charges and
expenses as required by the terms of this Lease other than the annual base or
minimum rent (hereinafter sometimes referred to as "additional rent"), the
Landlord shall have the same rights and remedies as those provided for in the
Lease with regard to the Tenant's failure to pay an installment of the annual
base rent.
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FIXTURES & INSTALLATIONS
16. All appurtenances, fixtures, improvements, additions and other property
attached to or built into the Demised Premises by Landlord, at Landlord' s
expense, shall be and remain the property of Landlord, except that any such
fixtures, improvements, additions and other property installed at the expense of
Tenant may be removed by Tenant on the condition that Tenant shall repair, at
its expense, any damage to the Demised Premises or the Building resulting from
such removal. Except as otherwise provided for herein, all the outside walls of
the Demised Premises including corridor walls and the outside entrance doors to
the Demised Premises, any balconies, terraces or roofs adjacent to the Demised
Premises, and any space in the Demised Premises used for shafts, stacks, pipes,
conduit, ducts or other building facilities, and the use thereof, as well as
access thereto, for the purpose of operation, maintenance, decoration and
repair, are expressly reserved to Landlord, and Landlord does not convey any
rights to Tenant therein. Notwithstanding the foregoing, Tenant shall enjoy full
right of access to the Demised Premises through the public entrances, public
corridors and public areas within the Building.
ALTERATIONS
17. (A) Tenant shall make no structural alterations, decorations,
installations, additions or improvements in or to the Demised Premises without
Landlord's prior written consent, not to be unreasonably withheld or delayed,
and then only by contractors or mechanics who do not interfere with Landlord's
work in the Building.
(B) All installations or work done by Tenant shall at all times comply
with:
(a) Laws, rules, orders and regulations of governmental authorities
having jurisdiction thereof.
(b) Reasonable rules and regulations of the Landlord.
(c) Plans and specifications prepared by and at the expense of Tenant
shall be submitted to Landlord for its prior written approval, not to be
unreasonably withheld or delayed; no installations or work shall be undertaken
or started by Tenant, its agents, servants or employees, until Landlord has
approved such plans and specifications; and no material amendments or additions
to such plans and specifications shall be made without prior written consent of
Landlord, not to be unreasonably withheld or delayed. In the event the plans and
specifications are not approved by Landlord within fifteen (15) business days,
same shall be deemed approved. Tenant agrees that it will not, either directly
or indirectly, use any contractors
13
and/or labor and/or materials that would or will create any labor disharmony
with any contractors and/or labor engaged by Landlord in the construction,
maintenance and/or operation of the Building or any part thereof.
Notwithstanding the above, no plans and specifications shall be needed for
cosmetic or non-structural work nor shall Landlord consent be required for such
work.
(d) Tenant shall defend, indemnity and hold harmless Landlord from any
claim arising out of the performance of said Tenant's work. Tenant shall, upon
request of Landlord, supply Landlord with workmen's compensation certificates
for all persons and/or contractors performing work for Tenant at the Demised
Premises, a public liability insurance policy in the sum of Two Million
($2,000,000.00) Dollars for personal injuries and death claims and One Million
($1,000,000.00) Dollars for property damage. In the event any mechanics lien
shall be filed against the Building by any of the Tenant's contractors,
subcontractors or material men, for work done on behalf of Tenant, Tenant shall
discharge the lien by bond, payment or otherwise, within thirty (30) after
notice of the filing to Tenant and upon Tenant's failure to so discharge any
lien, Landlord may, at its option, remove the lien by bonding and charge the
Tenant with the cost thereof, together with it's reasonable attorneys' fees.
(C) Tenant shall have the right to put a generator, the size and
specifications of which shall first be reasonably approved by Landlord, (and any
dunnage necessary in connection therewith) in a location on the roof of the gym
adjacent to the garage currently under construction which location shall be
reasonably acceptable to Landlord and Tenant's engineer.
REQUIREMENTS OF LAW
18. (A) Tenant, at Tenant's sole cost and expense shall comply with
all applicable laws, orders and regulations of Federal, State, County and
Municipal authorities, and with all directions, pursuant to law, of all public
officers, which shall impose any duty upon Tenant with respect to the use or
occupation of the Demised Premises by Tenant.
(B) Tenant shall not do anything, or permit anything to be done, in
the Demised Premises which shall (i) invalidate or be in conflict with the
provisions of any fire or other insurance policies covering the Building or any
property located therein, or (ii) result in a refusal by fire insurance
companies of good standing to insure the Building or any such property, or (iii)
cause any increase in the fire insurance rates applicable to the Building or
property located therein at the beginning of the Demised Term or at any time
thereafter. Tenant, at Tenant's expense, shall
14
comply with all the rules, orders, regulations or requirements of the New York
Board of Fire Underwriters and the New York Fire Insurance Rating organization
or any similar body.
(C) In any action or proceeding wherein Landlord and Tenant are
parties, a schedule or "make-up" of rates applicable to the Building or property
located therein issued by the New York Fire Insurance Rating Organization or
other similar body fixing such fire insurance rates, shall be conclusive
evidence of the facts therein stated and of the several items and charges in the
fire insurance rates then applicable to the Building or property located
therein.
(D) Tenant shall be responsible for curing any notices of violation
arising out of Tenant's acts issued by any governmental agency affecting the
Demised Premises and the Building and Property and otherwise complying with all
applicable laws and regulations affecting the Building and the Property.
Notwithstanding anything to the contrary contained herein, Tenant shall not be
required to bear the cost of compliance with any laws, orders, regulations, or
requirements of any state, federal municipal and local governments, departments,
commissions or boards and any direction of any public office pursuant thereto
and all orders, rules and regulations of the New York Board of Fire Underwriters
Insurance Service Office or any similar body which would require any structural
or non structural alterations, unless the condition necessitating the work shall
arise as a result of Tenant's manner of use of the demised premises or method of
operations therein. Tenant may, after securing Landlord to Landlord's reasonable
satisfaction against all damages, interest, penalties, by cash deposit or surety
bond, contest and appeal any such laws, orders, regulations or requirements.
LANDLORD'S CONSENT
19. (A) In no event shall Tenant be entitled to make, nor shall Tenant
make, any claim, and Tenant hereby waives any claim for any sum of money
whatsoever as damages, costs, expenses, attorneys' fees or disbursements,
whether affirmatively or by way of setoff, counterclaim or defense, based upon
any claim or assertion by Tenant that Landlord has unreasonably withheld or
unreasonably delayed any consent or approval (including, without limitation,
consent to a proposed assignment or sublease of the premises), and Tenant's sole
remedy for claimed unreasonable withholding or unreasonable delaying by Landlord
of its consent or approval shall be an action or proceeding brought and
prosecuted solely at Tenant's own cost and expense to enforce such provision,
for specific performance, injunction or declaratory judgment.
(B) If Tenant requests Landlord's consent or approval to alterations,
assignment, subletting or any other matter or thing requiring Landlord's consent
or approval under this Lease,
15
and if in connection with such request Landlord reasonably seeks the advise of
its attorneys, accountants, architect, engineer or other professional, then
Landlord, as a condition precedent to granting its consent or approval, may
require (in addition to any other requirements of Landlord in connection with
such request) that Tenant pay the reasonable fee of Landlord's attorneys,
accountants, architect, engineer or other professional in connection with the
consideration of such request and/or the preparation of any documents pertaining
thereto, except that no fee shall be payable for subleases and assignments which
do not require Landlord consent under the terms of this Lease. No fee shall be
payable to Landlord in connection with Tenant's initial alterations or
alterations which do not require Landlords consent or subleases which do not
require consent.
END OF TERM
20. (A) Upon the expiration or other termination of the term of this Lease,
Tenant shall quit and surrender to Landlord the Demised Premises, broom clean,
in good order and condition, ordinary wear and casualty excepted, and Tenant
shall have the right but not the obligation to remove all of its property and
shall repair all damage to the Demised Premises or the Building occasioned by
such removal. Any property not removed from the premises shall be deemed
abandoned by Tenant and may be disposed of in any manner deemed appropriate by
the Landlord, unless otherwise agreed to in writing (i.e. extension of time to
remove). Tenant expressly waives, for itself and for any person claiming through
or under Tenant, any rights which Tenant or any such person may have under the
provisions of Section 221 of the Real Property Actions and Proceedings Law and
of any successor law of like import then in force in connection with any
holdover or summary proceedings which Landlord may institute to enforce the
foregoing provisions of this Article at the end of the term as expressed herein.
Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of the term of this lease. If the last day of
the term of this lease or any renewal hereof falls on a Sunday or a legal
holiday, this lease shall expire on the business day immediately preceding.
(B) Tenant acknowledges that possession of the Demised Premises must
be surrendered to Landlord at the expiration or sooner termination of the term
of this lease. The parties recognize and agree that the damage to Landlord
resulting from any failure by Tenant to timely surrender possession of the
Demised Premises as aforesaid will be substantial, will exceed the amount of
fixed minimum rent and additional rent theretofore payable hereunder, and will
be impossible accurately to measure. Tenant therefore agrees that if possession
of the Demised Premises is not surrendered to Landlord upon the expiration or
sooner termination of the term of this lease, then notwithstanding anything to
the contrary contained in this lease, Tenant shall pay to Landlord for each
month and for each portion or any month during which Tenant holds
16
over in the demised premises after the expiration or sooner termination of the
term of this lease, for use and occupancy, the aggregate sum of (i) two times
the amount of the installment of the fixed minimum rent that was payable under
this lease for the last month of the term hereof, plus (ii) one-twelfth of all
items of annual additional rent which would have been payable monthly pursuant
to this lease had its term not expired or been terminated, plus (iii) those
items of additional rent (not annual additional rent) which would have been
payable monthly pursuant to this lease had its term not expired or been
terminated, which aggregate sum Tenant agrees to pay to Landlord upon demand, in
full without setoff, and no extension or renewal of this lease shall be deemed
to have occurred by such holding over, nor shall Landlord be precluded by
accepting such aggregate sum for use and occupancy from exercising all rights
and remedies available to it to obtain possession of the Demised Premises.
(C) If Tenant shall default in surrendering the demised premises upon
the expiration or termination of the term, Tenant's occupancy subsequent to such
expiration or termination, whether or not with the consent or acquiescence of
Landlord, shall be deemed to be that of a tenancy at will and in no event from
month-to-month or from year-to-year, and it shall be subject to all the terms,
covenants and conditions of this Lease applicable thereto, except with respect
to the fixed minimum rent as hereinabove stated. Tenant hereby expressly waives
any and all predicate notices to a holdover and Landlord may immediately proceed
with a holdover Notice of Petition and Petition.
QUIET ENJOYMENT
21. Landlord 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 Demised Premises during the term of this
lease without hindrance or molestation by anyone claiming by or through
Landlord, subject, nevertheless, to the terms, covenants and conditions of this
Lease.
SIGNS
22. No sign or lettering of any nature may be put on or in any window,
nor on the exterior of the Building or elsewhere within the Demised Premises
such as shall be visible from the street, except with the written approval of
the Landlord, which approval shall not be unreasonably withheld or delayed.
23. Intentionally Omitted.
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RULES AND REGULATIONS
24. Tenant and Tenant's agents, employees, invitees, and licensees
shall faithfully comply with the Rules and Regulations set forth in Exhibit "C"
annexed hereto and made part hereof, and with such further Rules and Regulations
as Landlord at any time may make and communicate in writing to Tenant which, in
Landlord's judgment shall be necessary for the reputation, safety, care or
appearance of the Building and the land allocated to it or the preservation of
good order therein, or the operation or maintenance of the Building, and such
land, its equipment, or the more useful occupancy or the comfort of the tenants
or others in the Building. Landlord shall not be liable to Tenant for the
violation of any of said Rules and Regulations, or the breach of any covenant or
condition in any lease by any other tenant in the Building, provided such are
applied in an equal and non-discriminatory manner. In the event of a conflict
between this Lease and the Rules and Regulations, the terms of this Lease shall
prevail.
ASSIGNMENT AND SUBLETTING
25. (A) Tenant, for itself, its successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this Agreement, nor
under let the Demised Premises or any part thereof or license or permit the
Demised Premises or any part thereof to be used by others, without the prior
written consent of the Landlord, which shall not be unreasonably withheld or
delayed, and upon due compliance with the provisions of this Article.
Notwithstanding the foregoing, no consent of Landlord will be required in
connection with section 25(A), nor shall the provisions of section 25(B)(C)(F)
apply, with respect to any assignments, underlets (including sublets), grant of
any permission to use or license, concession or other right of occupancy of all
or any portion of the Premises to (i) affiliated entity, parent entity or
subsidiary entity, controlling, controlled by or under common control with the
Tenant (including HCI Acquisition Corp. (H- Link On Call) and/or Safecom); or
(ii) to a successor corporation in connection with a merger, consolidation or
sale of substantially all of Tenant's business or substantially all of the stock
of Tenant.
(B) Prior to requesting the approval of Landlord to an assignment or
subletting as hereinafter provided, Tenant shall, by written notice, offer to
terminate this Lease and to vacate and surrender the Demised Premises to
Landlord as of the last day of the calendar month which is at least sixty (60)
days from the date of Tenant's notice and prior to the effective date of such
proposed assignment or subletting. Simultaneously with said offer to terminate
this Lease, Tenant shall advise the Landlord of all the terms, covenants and
conditions of the Tenant's proposed sublease or assignment. A sublease of less
than 40% of the Demised Area shall not give rise to Landlord' s recapture rights
herein. The provisions of this subsection shall not be
18
applicable provided (i) in the case of a sublease(s) in excess of forty (40%)
percent of the demised area, fifty (50%) percent of all rent and additional rent
received by Tenant for sublease(s) in excess of the rent and additional rent
received herein, shall be paid to Landlord within fifteen (15) days of receipt,
as additional rent; and (ii) in the case of an assignment, fifty (50%) percent
of any consideration paid to Tenant for said assignment, except that which is
paid for Tenant's furniture, fixtures, equipment, leasehold improvements and
goodwill shall be paid to Landlord within fifteen (15) days of receipt. In
either of the foregoing cases, Tenant shall first deduct its expenses, including
brokerage fees, advertising, free rent, reasonable attorneys fees and
alterations performed by Tenant before submitting to Landlord. Landlord must
exercise its recapture rights hereunder within fifteen (15) business days of
receiving Tenant's notice. If Landlord has not exercised its right to recapture
within said fifteen (15) days, then Landlord shall have forty five (45) days to
approve of the proposed assignment or subletting. If Landlord shall not have
reasonably rejected the proposed assignment or subletting within the forty five
(45) day period, Landlord shall be deemed to have approved the proposed
assignment or subletting.
(C) With respect to any proposed subtenant or assignee, Tenant shall
submit to Landlord the most recent fiscal year's financial statements of such
person or entity as well as a description of the business of the person or
entity. Upon Tenant's due compliance with the aforesaid provisions of this
Article, Landlord agrees not to unreasonably withhold its consent to an
assignment or subletting, provided that the Tenant is not then in default beyond
any cure period under this Lease and that the proposed assignee or undertenant:
(a) has a comparable financial position and net worth as tenant (b) is
credit-worthy and (c) of good reputation.
(D) No such assignment shall be effective until duplicate originals of
such Assignment and Assumption Agreement wherein Assignee agrees to perform all
the obligations of the Tenant under this lease in form reasonably satisfactory
to Landlord are delivered to Landlord.
(E) No sub-letting or assignment of the Demised Premises shall release
or discharge the Tenant hereunder from any of its obligations to be performed
under this Lease.
(F) Notwithstanding anything contained in this Lease to the contrary,
Landlord shall not be obligated to entertain or consider any request by Tenant
to consent to any proposed assignment of this Lease or sublease unless Tenant
pays Landlord's reasonable legal fees and reasonable related costs for third
party services actually incurred to process the proposed assignment. Neither
Tenant's payment nor Landlord's acceptance of any such payments shall be
construed to impose any obligation whatsoever upon Landlord to consent to
Tenant's request.
19
LANDLORD'S ACCESS TO PREMISES
26. (A) Landlord or Landlord's agents shall have the right to enter
and/or pass through the Demised Premises at all times after reasonable notice
during normal business hours, except in an emergency, in which case no notice
shall be required and entrance may be made at any time, to examine same, and to
show them to mortgagees, ground lessors, prospective purchasers or lessees or
mortgagees of the Building, and to make such repairs, improvements or additions
as Landlord may deem necessary and Landlord shall be allowed to take all
material into and upon and/or through said Demised Premises that may be required
therefore. During the six months prior to the expiration of the term of this
Lease, or any renewal term, Landlord may exhibit the Demised Premises to
prospective tenants or purchasers at all reasonable business hours subject to
the preceding provision. If Tenant shall not be personally present to open and
permit an entry into said premises at any time when for any reason an entry
therein shall be necessary, Landlord or Landlord's agents may enter the same by
a master key without rendering Landlord or such agent liable therefore.
(B) Landlord shall have the right at any time, to change the
arrangement and/or location of entrances or passageways, doors and doorways, and
corridors, elevators, stairs, toilets and other public parts of the Building,
provided, same does not diminish Tenant's usable area or obstruct Tenant's
access to the Demised Premises, or visibility of the Demised Premises.
(C) Provided the Landlord complies with the terms hereof, the exercise
by Landlord or its agents of any right reserved to Landlord in this Article
shall not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Landlord,
or its agents, or upon any lessor under any ground or underlying lease, by
reason of inconvenience or annoyance to Tenant, or injury to or interruption of
Tenant's business, or otherwise. Landlord agrees to use its best efforts to
minimize interference with Tenant's business.
SUBORDINATION
27. This Lease is subject and subordinate in all respects to all
ground leases and/or underlying leases and to all present and/or future
mortgages which may be placed on or affect such leases and/or the real property
of which the Demised Premises forms a part, or any part of such real property
and/or Landlord's interest or estate therein, and to each advance made and/or
hereafter to be made under any such mortgages, and to all renewals,
modifications, consolidations, replacements and extensions thereof. Tenant shall
execute and deliver promptly
20
any certificate that Landlord and or any mortgagee and/or the lessor under any
ground or underlying lease and/or their respective successors in interest may
reasonably request. Landlord shall use reasonable efforts to obtain a
non-disturbance agreement from such entities.
PROPERTY LOSS, DAMAGE REIMBURSEMENT
28. (A) Landlord or its agents shall not be liable for any loss of, or
damage to, any property of Tenant by theft or otherwise, unless caused by the
willful misconduct of Landlord, its agents, contractors, servants and/or
employees. Landlord or its agents shall not be liable for any injury or damage
to persons or property resulting from fire, explosion, falling plaster, steam,
gas, electrical, electrical disturbance, water, rain or snow or leaks from any
part of the Building or from the pipes, appliances or plumbing works or from the
roof, street or subsurface or from any other place or by dampness or by any
other cause of whatsoever nature, unless caused by or due to the willful
misconduct of Landlord, its agents, servants, contractors or employees; nor
shall Landlord or its agents be liable for any such damage caused by other
tenants or persons in the Building or caused by operations of construction or
any private, public or quasi-public work. If at any time any windows of the
Demised Premises are temporarily closed or darkened incident to or for the
purpose of repair, replacement, maintenance and/or cleaning in, on or about the
Building or any part or parts thereof, Landlord shall not be liable for any
damage Tenant may sustain thereby and Tenant shall not be entitled to any
compensation therefore, nor abatement of rent, nor shall the same release Tenant
from obligations hereunder nor constitute an eviction. Tenant shall give prompt
notice to Landlord in case of fire or accidents in the Building or of defects
therein or in any fixtures or equipment of which Tenant has knowledge.
(B) Tenant shall indemnify and save harmless Landlord against and from
any and all claims by or on behalf of any person or persons, firm or firms,
corporation or corporations arising from the omission of any Tenant work or
thing whatsoever done by Tenant (other than by Landlord or its contractors or
the agents or employees of either) in and on the Demised Premise during the term
of this Lease and during the period of time, if any, prior to the specified
commencement date that Tenant may have been given access to the Demised Premises
for the purpose of making installations, and will further indemnify and save
harmless Landlord against and from any and all claims arising from any condition
of the Demised Premises due to or arising from any willful misconduct or breach
of Lease or negligence of Tenant or any of its agents, contractors, servants,
employees, licensees or invitees and against and from all reasonable costs,
expenses, and liabilities incurred in connection with any such claim or claims
or action or proceeding brought thereon; and in case any action or proceeding be
brought against Landlord by
21
reason of any such claim Tenant, upon notice from Landlord, agrees that Tenant,
at Tenant's expense, will resist or defend such action or proceeding and will
employ counsel therefore.
DESTRUCTION - FIRE OR OTHER CASUALTY
29. If the Demised Premises shall be damaged by fire or other casualty
Landlord, at Landlord's expense, shall promptly repair such damage to
substantially the same condition as existed prior to such casualty. However,
Landlord shall have no obligation to repair any damage to, or to replace,
Tenant's personal property or any other property or effect of Tenant except if
such fire or casualty was caused by the willful misconduct of Landlord or its
agents, contractors or employees. If the entire Demised Premises shall be
rendered unusable by reason of any such damage, the rent and additional rent
shall xxxxx for the period from the date of such damage to the date when such
damage shall have been repaired, and if only a part of the Demised Premises
shall be so rendered unusable, the rent and additional rent shall xxxxx for such
period in the proportion which the area of the part of the Demised Premises so
rendered unusable bears to the total area of the Demised Premises. However, if,
prior to the date when all of such damage shall have been repaired any part of
the Demised Premises so damaged shall be rendered usable and shall be used or
occupied by Tenant or any person or persons claiming through or under Tenant,
the amount by which the rent and additional rent shall xxxxx shall be equitably
apportioned for the period from the date of any such use or occupancy to the
date when all such damage shall have been repaired. Tenant hereby expressly
waives the provisions of Section 227 of the New York Real Property Law and of
any successor law of like import then in force and Tenant agrees that the
provision of this Article shall govern and control in lieu thereof.
Notwithstanding the foregoing provisions of this Section, if, prior to or during
the Demised Term (i) the Demised Premises shall be totally damaged or rendered
wholly unusable by fire or other casualty, and if Landlord shall decide not to
restore the Demised Premises, or (ii) the Building shall be so damaged by fire
or other casualty that total alteration, demolition or reconstruction of the
Building shall be required, (whether or not the Demised Premises shall be
damaged or rendered unusable), then, in any such events, Landlord, at Landlord's
option, may give to Tenant within forty-five (45) days after such fire or other
casualty, a thirty (30) days notice of termination of this lease and, in the
event such notice is given, this Lease and the Demised Term shall come to an end
and expire (whether or not said term shall have commenced) upon the expiration
of said thirty (30) days with the same effect as if the date of expiration of
said thirty (30) days were the Expiration Date, the rent and additional rent
shall be apportioned and any prepaid portion of rent and additional rent for any
period after such date of casualty shall be refunded by Landlord to Tenant. If
such restoration is expected to take more than 365 days to complete, Tenant
shall also have the right to terminate. Furthermore, if the Demised Premises
shall be so damaged by
22
fire or other casualty during the last year of the term of this lease, such that
the entire Demised Premises or a material part thereof shall be rendered
unusable, Tenant shall have the right to terminate this Lease upon giving thirty
(30) days notice of termination and this Lease and the Demised Term shall come
to an end and expire upon the expiration of said thirty (30) days and the rent
and additional rent shall be apportioned and any prepaid portion of rent and
additional rent for any period after such date of casualty shall be refunded by
Landlord to Tenant.
30. Intentionally Omitted.
EMINENT DOMAIN
31. (A) In the event that the whole of the Demised Premises or access
thereto, shall be lawfully condemned or taken in any manner for any public or
quasi-public use, this Lease and the term and estate hereby granted shall
forthwith cease and terminate as of the date of vesting of title. In the event
that a material part of the Demised Premises shall be so condemned or taken,
then effective as of the date of vesting of title, rent and additional rent
hereunder shall be abated in an amount thereof apportioned according to the area
of the Demised Premises so condemned or taken. In the event that a material part
of the Building (in excess of 25%) shall be so condemned or taken, then Landlord
(whether or not the Demised Premises be affected) may, at its option terminate
this Lease and the term and estate hereby granted as of the date of such vesting
of title by notifying Tenant in writing of such termination within forty-five
(45) days following date on which Landlord shall have received notice of vesting
of title. In the event that only a part of the Demised Premises shall be so
condemned or taken and this Lease and the term and estate hereby granted is not
terminated as hereinbefore provided, Landlord will, at its expense, promptly
(but in all events in less than 120 days) restore the remaining portion of the
Demised Premises as nearly as practicable to the same condition as it was in
prior to such condemnation or taking. In the event that a material part of the
Demised Premises (in excess of 25% of the Demised Premises) shall be so
condemned or taken, then Tenant shall also have the right to terminate this
Lease.
(B) In the event of a termination in any of the cases herein above
provided, this lease and the term and estate granted shall expire as of the date
of such termination with the same effect as if that were the date hereinbefore
set forth for the expiration of the term of this Lease, and the rent and
additional rent hereunder shall be apportioned as of such date.
(C) In the event of any condemnation or taking herein above mentioned
of all or a part of the Building, Landlord shall be entitled to receive the
entire award made for the value of the
23
estate vested by this Lease in Tenant, except that the Tenant may file a claim
for any taking of removable fixtures owned by Tenant and for moving expenses
incurred by Tenant.
WASTE
32. Tenant will not do or suffer any waste or damage, disfigurement or
injury to the Building or any part thereof.
CERTIFICATE OF OCCUPANCY
33. (a) Tenant will not at any time use or occupy the Demised Premises
in violation of the Certificate of Occupancy (temporary or permanent) issued for
the Building or a portion thereof of which the Demised Premises form a part.
(b) In the event a temporary certificate of occupancy ("t/c/o") is not
obtained by October 1, 2002 and Tenant shall not have taken occupancy to the
Demised Premises, Tenant may cancel this lease, and in such event, Landlord
shall reimburse Tenant, within thirty days following Tenant's election to cancel
the Lease, for the following reasonable expenses actually incurred by Tenant:
professional services for the space, including architectural, expediters,
engineering, contractors, reasonable legal fees, and any payments made by Tenant
to Landlord, including the security deposit pursuant to paragraph 4 of this
Lease. Tenant shall exercise such right to cancel by giving written notice
thereof to Landlord within sixty (60) days from October 1, 2002, "Time Being of
the Essence", unless the parties agree in writing to extend such time period.
(c) In the event Tenant elects to take occupancy of the Demised
Premises prior to Landlord's obtaining a t/c/o, as provided at paragraph "2"
hereinabove, Tenant waives its right to cancel the Lease as a result of
Landlord's failing to obtain a t/c/o by October 1, 2001, however, Tenant shall
continue to have the right to cancel the Lease only, if, and when (1) Tenant is
required to cease operations in the Demised Premises pursuant to governmental
mandate in the form of an order issued by the City of New York or a court order
or (2) if Tenant's insurance carrier refuses to continue coverage as a result
thereof and Tenant is unable to obtain coverage elsewhere, proof of which shall
be provided to Landlord (Tenant represents that if it elects to take possession
of the Demised Premises prior to a t/c/o, it shall have first obtained the
necessary insurance coverage with respect to the operation of its business).
Prior to any cancellation of the Lease as a result of a lack of insurance
coverage, as noted above, Landlord shall be given a period of thirty (30) days
after written notice from Tenant in which to find a reputable insurance carrier
24
willing to provide coverage to Tenant, the costs and expense of which coverage
shall be paid by Tenant, at comparable rates as that which was being paid by
Tenant.
(d) If Tenant cancels the lease, pursuant to paragraph 33(c), Tenant
shall still be entitled to reimbursement, within thirty days following Tenant's
election to cancel the Lease, of the following: (1) such expenses as are set
forth in paragraph 33(b), (2) the cost and expenses for any alterations and
improvements made by tenant to the Premises, (3) reasonable moving expenses
actually incurred, and (4) any payments made by Tenant to Landlord, including
security deposit pursuant to paragraph 4 of this Lease, with the exception that
Tenant shall not be entitled to any reimbursement of rents paid.
(e) Tenant's right to reimbursement of expenses pursuant to Section 33
(b) and (d) hereunder shall be limited to a maximum sum of $200,000.00. In no
event shall Landlord be required to reimburse expenses in a greater sum,
notwithstanding what the actual Tenant expenses may be.
(f) Notwithstanding anything contained in this Section 33 of the
Lease, Landlord indemnifies and agrees to save Tenant harmless from and against
all fines, penalties, violations, losses, damages and reasonable expenses
resulting from the actions, claims or orders of or imposed by governmental
authorities only in connection with or arising out of Tenant's use, occupancy
and operation in the Demised Premises during the pendency of Landlord's
application for a t/c/o (both pre- or post- October 1, 2001) until the issuance
of a valid t/c/o.
DEFAULT
34. (A) The occurrence, at any time prior to or during the Demised Term, of
any one or more of the following events shall be a default (referred to as
"Events of Default"):
(a) If Tenant shall default in the payment when due of any installment
of rent or in the payment when due of any additional rent, and such default
shall continue for a period of ten (10) days after notice by Landlord to Tenant
of such default; or
(b) If Tenant shall default in the observance or performance of any
term, covenant or condition of this Lease on Tenant's part to be observed or
performed (other than the covenants for the payment of rent and additional rent)
and Tenant shall fail to remedy such default within thirty (30)
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days after notice by Landlord to Tenant of such default, or if such default is
of such a nature that it cannot be completely remedied within said period of
thirty (30) days and Tenant shall not commence curing such default within said
period of thirty (30) days, or shall not thereafter diligently prosecute to
completion, all steps necessary to remedy such default; or
(c) If Tenant shall file a voluntary petition in bankruptcy or
insolvency, or shall be adjudicated bankrupt or become insolvent, or shall file
any petition seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future
federal bankruptcy act or any other present or future applicable federal, state
or other statute of law, or shall make an assignment for the benefit of
creditors or shall seek or consent to, or acquiesce in the appointment of any
trustee, receiver or liquidator of Tenant or of all or any part of Tenant's
property; or
(d) If, within seventy-five (75) days after the commencement of any
proceeding against Tenant, whether by the filing of a petition or otherwise
seeking any reorganization, arrangement, composition, liquidation, dissolution
or similar relief under the present or any future federal bankruptcy act or any
other present or future applicable federal, state or other statute or law, such
proceedings shall not have been dismissed, or if within seventy-five (75) days
after the appointment of any trustee, receiver or liquidator of Tenant, or of
all or any part of Tenant's property, without the consent or acquiescence of
Tenant such appointment shall not have been vacated or otherwise discharged, or
if any execution or attachment shall be issued against Tenant or any of Tenant's
property pursuant to which the Demised Premises shall be taken or occupied or
attempted to be taken or occupied and not dismissed within seventy-five (75)
days; or
(e) If the Demised Premises shall become vacant, deserted or abandoned
by Tenant; or
(f) If Tenant's interest in this Lease shall devolve upon or pass to
any person, whether by operation of law or otherwise, except for (i) those
transfers permitted under section "25" herein, (ii) a transfer of Tenant's stock
by public offering on a nationally recognized stock exchange, (iii) transfers of
Tenant's stock to or among Tenant's existing shareholders or their respective
family members or which is being done for estate planning purposes, or (iv) a
transfer of Tenant's stock as part of a so-called "going private" transaction.
(B) Upon the occurrence, at any time prior to or during the Demised Term,
of any one or more of such Events of Default, Landlord, at any time thereafter,
at Landlord's option, may give
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to Tenant a five (5) days notice of termination of this Lease, in which event,
this Lease and the Demised Term shall come to an end and expire (whether or not
said term shall have commenced) upon the expiration of said five (5) days with
the same effect as if the date of expiration of said five (5) days were the
Expiration Date of the lease but Tenant shall remain liable for damages as
provided in this Lease.
(C) Any monies received by Landlord from or on behalf of Tenant during the
pendency of any proceeding hereunder shall be deemed paid as compensation for
the use and occupancy of the Demised Premises and the acceptance of any such
compensation by Landlord shall not be deemed a waiver on the part of Landlord of
any rights under this Article.
(D) In the event Landlord shall default in the performance of or observance
of any material term, covenant or condition of this Lease on Landlord's part to
be performed and Landlord shall fail to remedy such default within thirty (30)
days after notice by Tenant to Landlord of such default, or if such default is
of such a nature that it cannot be completely remedied within said period of
thirty (30) days and Landlord shall not commence curing such default within such
thirty (30) days, or shall not thereafter diligently prosecute to completion the
cure of such default, then, in such event, Tenant shall have the right to pursue
whatever remedies it may have under this Lease or all rights and remedies at law
or in equity to which Tenant may be entitled, including the recovery of
reasonable attorneys fees.
(E) If Tenant shall default in the payment when due of any installment of
rent or in the payment when due for any additional rent and such default shall
continue for a period of ten (10) days after notice by Landlord to Tenant of
such default, or if this Lease and the Demised Term shall expire and come to an
end as provided in this Article:
(a) Landlord and its agents and servants may immediately or at any
time after such Event of Default or after the date upon which the Lease and the
Demised Term shall expire and come to an end, re-enter the Demised Premises or
any part thereof, with notice, by summary proceedings or by any other applicable
action or proceeding and after obtaining an order of a court of competent
jurisdiction authorizing same, and may repossess the Demised Premises and
dispossess Tenant and any other persons from the Demised Premises and remove any
and all of their property and effects from the Demised Premises; and
(b) Landlord, at Landlord's option, may relet the whole or any part or
parts of the Demised Premises from time to time either in the name of Landlord
or otherwise, to such tenant
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or tenants, for such term or terms ending before, on or after the Expiration
Date, at such rental or rentals and upon such other conditions, which may
include concessions and free rent periods, as Landlord, in its reasonable
discretion, may determine. Landlord shall in no event be liable for refusal or
failure to relet the Demised Premises or any part thereof, or, in the event of
any such reletting, for refusal or failure to collect any rent due upon any such
reletting, and no such refusal or failure shall operate to relieve Tenant of any
liability under this Lease. Landlord at Landlord's option, may make such
repairs, replacements, alterations, additions, improvements, decorations and
other physical changes in and to the Demised Premises as Landlord, in its
discretion considers advisable or necessary in connection with any such
reletting without relieving Tenant of any liability under this Lease or
otherwise affecting any such liability.
(F) Tenant, on its own behalf and on behalf of all persons claiming through
or under Tenant, including all creditors, does hereby waive any and all rights
which Tenant and all such persons might otherwise have under any present or
future law to redeem the Demised Premises, or to re-enter or repossess the
Demised Premises, or to restore the operation of this Lease, after (i) Tenant
shall have been dispossessed by a judgment or by warrant of any court or judge
or (ii) re-entry by Landlord, or (iii) any expiration or termination of this
Lease and the Demised Term, whether such dispossess, re-entry, expiration or
termination shall be by operation of law or pursuant to the provisions of this
Lease.
SPRINKLERS
35. Anything elsewhere in this Lease to the contrary notwithstanding, if
the New York Board of Fire Underwriters or New York Fire Insurance Exchange or
any bureau, department, official of the federal, state or city government
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 if any such sprinkler system installations, changes, 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 any
fire insurance company, Tenant shall, at Tenant's expense, promptly make such
sprinkler system installations, change, modifications, alterations, and supply
additional sprinkler heads or other equipment as required.
DAMAGES
36. (A) If this Lease and the Demised Term shall expire and come to an end
as provided in this Lease or by or under any summary proceeding, or any other
action or proceeding or if
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Landlord shall re-enter the Demised Premises under any summary proceedings or
any other action or proceeding then, in any of said events:
(a) Tenant shall pay to Landlord all rent, additional rent and other
charges payable under this Lease by Tenant to Landlord to the date upon which
this Lease and the Demised Term shall have expired and come to an end or to the
date of re-entry upon the Demised Premises by Landlord, as the case may be; and
(b) In the event of a default under section "34", Tenant shall also be
liable for, and shall pay to Landlord, as liquidated and agreed final damages,
any deficiency (referred to as "Deficiency") which is the sum equal to the
amount by which the rent and additional rent reserved in this Lease for the
period which otherwise would have constituted the unexpired portion of the
Demised Term (excluding any unexercised extension option) exceeds the net
amount, if any, of rents collected under any re-letting of any part of such
period (first deducting from the rents collected under any such re-letting all
of Landlord's reasonable and actual expenses regarding such re-letting
including, but not limited to, all repossession costs, brokerage commissions,
legal expenses, attorneys' fees, alteration costs and other expenses of
preparing the Demised Premises for such re-letting). Any such Deficiency shall
be paid in monthly installments by Tenant on the days specified in this Lease
for payment of installments of rent. Landlord shall be entitled to recover from
Tenant each monthly Deficiency as the same shall arise, and no suit to collect
the amount of the Deficiency for any month shall prejudice Landlord's rights to
collect the Deficiency for any subsequent month by a similar proceeding.
(B) If the Demised Premises, or any part thereof, shall be relet together
with other space in the Building, the rent collected or reserved under any such
re-letting and the expenses of any such re-letting shall be equitably
apportioned for the purpose of this Article. Tenant shall in no event be
entitled to any rents collected or payable under any re-letting, whether or not
such rents shall exceed the rent reserved in this Lease. Solely for the purposes
of this Article, the term "rent" as used in Section (A) shall mean the rent in
effect immediately prior to the date upon which this Lease and the Demised Term
shall have expired and come to an end, or the date of re-entry upon the Demised
Premises by Landlord, as the case may be, plus any additional rent payable
immediately preceding such event.
SUMS DUE LANDLORD
37. If Tenant shall default after notice and the expiration of any
applicable cure period, in the performance of any covenants on Tenant's part to
be performed in this Lease contained,
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Landlord may immediately, or at any time thereafter, perform the same for the
account of the Tenant. Tenant shall reimburse and compensate Landlord as
additional rent for all expenditures made by, or damages or fines sustained or
incurred by Landlord due to Tenant's non-performance or non-compliance with or
breach or failure to observe any term, covenants or conditions of this Lease, on
Tenant's part to be kept, observed, performed or complied with. If Landlord at
any time is compelled to pay or elects to pay any sum of money, or do any act
which will require the payment of any sum of money, by reason of the failure of
Tenant to comply with any provision hereof, or, if Landlord is compelled to do
or does incur any expense including reasonable attorney's fees, instituting,
prosecuting and/or defending any action or proceeding instituted by reason of
any default of Tenant hereunder, the sum or sums so paid by Landlord with all
interest and costs, shall be deemed to be additional rent hereunder and shall be
due from Tenant to Landlord on the first day of the month following the
incurring of such respective expenses, or at Landlord's option on the first day
of any subsequent month. Tenant's obligations under this Article shall survive
the expiration or sooner termination of the Demised Term.
NO WAIVER
38. (A) No act or thing done by Landlord or Landlord's agents during the
term hereby demised shall be deemed an acceptance of surrender of said Demised
Premises and no agreement to accept such surrender of the Demised Premises shall
be valid unless in writing signed by Landlord. No employee of Landlord or of
Landlord's agents shall have any power to accept the keys of said Demised
Premises prior to the termination of this Lease. The delivery of keys to any
employee of Landlord or of Landlord's agents shall not operate as a termination
of this Lease or a surrender of the Demised Premises. The failure by landlord to
seek redress for violation of, or to insist upon the strict performance of, any
covenants or conditions of this Lease, or any of the Rules and Regulations
annexed hereto and made part hereof or hereafter reasonably adopted by Landlord,
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
failure by Landlord to enforce any of the Rules and Regulations annexed hereto
and made part hereof, or hereafter reasonably adopted, against Tenant and/or any
other tenant in the Building shall not be deemed a waiver of any such Rules and
Regulations. No provision of this Lease shall be deemed to have been waived by
Landlord, unless such waiver be in writing signed by Landlord. No payment by
Tenant or receipt by Landlord 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 on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
30
Landlord's right to recover the balance of such rent or pursue any other remedy
in this Lease provided.
(B) Landlord's failure to timely render a Landlord's Statement with respect
to any increase in real estate taxes or operating expenses shall not prejudice
Landlord's right to render a Landlord's Statement with respect to any Escalation
Year, provided such statement is rendered within twenty-four (24) months of the
end of the Escalation Year. The obligation of Tenant with respect to real estate
taxes and operating expenses shall survive the expiration or any sooner
termination of the Demised Term.
WAIVER OF TRIAL BY JURY
39. To the extent such waiver is permitted by law, Landlord and Tenant
hereby waive trial by jury in any action or proceeding brought by Landlord or
Tenant against the other on any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, the use or
occupancy of the Demised Premises by Tenant or any person claiming through or
under Tenant, any claim of injury or damage, and any emergency or other
statutory remedy, except personal injury claim. The provisions of the foregoing
sentence shall survive the expiration or any sooner termination of the Demised
Term. If Landlord commences any summary proceeding for nonpayment of rent and/or
for possession of the Demised Premises, Tenant agrees not to interpose any
non-compulsory counterclaim of whatever nature or description in any such
proceeding. Nothing herein shall prohibit Tenant from bringing a separate action
against the Landlord.
BILLS AND NOTICES
40. Except as otherwise expressly provided in this Lease, any bills,
statements, notices, demands, requests or other communications given or required
to be given under this Lease shall be effective only if rendered or given in
writing, sent by Registered or Certified Mail (return receipt requested),
addressed (A) to Tenants at Tenant's address set forth in this Lease if mailed
prior to Tenant's taking possession of the Demised Premises or at the Demised
Premises if mailed subsequent to Tenant's taking possession of the Demised
Premises, with a copy to Xxx Xxxx, Esq., Korn & Xxxxx, Hempstead Executive
Plaza, 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, and (B) to Landlord at
Landlord's address set forth in this Lease, with a copy to Mihos, Karabelas &
Papagianopoulos LLP, 00-00 00Xx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxx Xxxx 00000 or
(C) addressed to such other address as either Landlord or Tenant may designate
as its new address for such purpose by notice given to the other in accordance
with the provisions of this Article. Any such
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bills, statements, notices, demands, requests or other communications shall be
deemed to have been rendered or given on the date when it shall have been mailed
as provided in this Article.
INABILITY TO PERFORM
41. If, by reason of strikes or other labor disputes, fire or other
casualty, accidents, orders or regulations of any Federal, State, County or
municipal authority, or any other cause beyond Landlord's control, whether or
not such other cause shall be similar in nature to those hereinbefore
enumerated, Landlord is unable to furnish or is delayed in furnishing any
utility or service required to be furnished by Landlord under the provisions of
this Lease or any collateral instrument, or is unable to perform or make or is
delayed in performing or making any installations, decorations, repairs,
alterations, additions or improvements, whether or not required to be performed
or made under this Lease, or under any collateral instrument, or is unable to
fulfill or is delayed in fulfilling any of Landlord's other obligations under
this Lease, or any collateral instrument, no such inability or delay shall
constitute an actual or constructive eviction, in whole or in part or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Landlord or its
agents by reasons of the inconvenience or annoyance to Tenant, or injury to, or
interruption of Tenant's business.
INTERRUPTION OF SERVICE
42. Landlord reserves the right to stop the services of the air
conditioning, elevator, escalator, plumbing, electrical or other mechanical
systems or facilities in the Building when necessary by reason of accident or
emergency, or for repairs, alterations, replacements or improvement, which, in
the judgment of Landlord are necessary, until said repairs, alterations,
replacements or improvements shall have been completed, provided Landlord (i)
uses its best efforts to restore such services as quickly as possible and (ii)
performs such work at times and in a manner so as to minimize interference with
Tenant's business. Tenant must receive five days prior written notice. The
exercise of such rights by Landlord shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business.
CONDITIONS OF LANDLORD'S LIABILITY
43. (A) Tenant shall not be entitled to claim a constructive eviction from
the Demised Premises unless Tenant shall have first notified Landlord of the
condition or conditions giving
32
rise thereto, and unless Landlord shall have failed to remedy such conditions
within a reasonable time after receipt of such notice,
(B) Subject to Tenant's rights set forth in section "33", if Landlord shall
be unable to give possession of the Demised Premises on any date specified for
the commencement of the term by reason of the fact that the premises have not
been sufficiently completed to make the premises ready for occupancy, or for any
other reason which is not the fault of the Landlord, Landlord shall not be
subject to any liability for the failure to give possession on said date, nor
shall such failure in any way affect the validity of this Lease or the
obligations of Tenant hereunder.
TENANT'S TAKING POSSESSION
44. (A) Tenant by entering into occupancy of the premises shall be
conclusively deemed to have agreed that Landlord up to the time of such
occupancy had performed all of its obligations hereunder and that the premises
were in satisfactory condition as of the date of such occupancy.
(B) If Tenant shall use or occupy all or any part of the Demised Premises
for the conduct of business prior to the Term Commencement Date, such use or
occupancy shall be deemed to be under all of the terms, covenants and conditions
of this Lease.
FINANCING REQUIREMENTS
45. If, in connection with obtaining financing or refinancing for the
Building of which the demised premises form a part, a banking, insurance or
other institutional lender shall request modifications to this Lease as a
condition to such financing or refinancing, Tenant will not unreasonably
withhold, delay or defer its consent thereto; provided, however, that such
modifications do not increase the obligations of Tenant hereunder (except,
perhaps, to the extent that Tenant may be required to give notices of any
defaults by Landlord to such lender and/or permit the curing of such defaults by
such lender to get possession of the Building) or materially adversely affect
the leasehold interest hereby created. In no event shall a requirement that the
consent of any such lender be given for any modification of this Lease or any
assignment or sublease, be deemed to materially adversely affect the leasehold
interest hereby created.
ENTIRE AGREEMENT
46. This Lease contains the entire agreement between the parties and all
negotiations and agreements are merged herein, except as set forth herein.
Neither party has made any representations or statements, or promises, upon
which the other has relied regarding any matter
33
or thing relating to the Building or the Demised Premises, or any other matter
whatsoever, except as is expressly set forth in this Lease, including but
without limiting the generality of the foregoing, any statement, representation
or promise as to the fitness of the Demised Premises for any particular use, the
services to be rendered to the Demised Premises or the prospective amount of any
item of additional rent. No oral statement, representation or promise whatsoever
with respect to the foregoing or any other matter made by Landlord or Tenant,
their agents or any broker, whether contained in an affidavit, information
circular, or otherwise shall be binding upon the Landlord or Tenant. This Lease
may not be changed, modified or discharged, in whole or in part, orally and no
agreement shall be effective to change, modify or discharge, in whole or in
part, this Lease or any obligations under this Lease, unless such agreement is
set forth in a written instrument executed by the party against whom enforcement
of the change, modification or discharge is sought. All references in this Lease
to the consent or approval of Landlord shall be deemed to mean the written
consent of Landlord, or the written approval of Landlord, as the case may be,
and no consent or approval of Landlord shall be effective for any purpose unless
such consent or approval is set forth in a written instrument executed by
Landlord.
VAULT, VAULT SPACE, AREA
47. 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, blueprint or plan, or anything contained
elsewhere in this Lease to the contrary notwithstanding. Landlord 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, Landlord 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, provided Tenant
continues to use or occupy same.
DEFINITIONS
48. The term "Landlord" as used in this Lease means only the owner, 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 the Building,
or of the land and Building, the said Landlord shall be and hereby is entirely
freed and relieved of
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all covenants and obligations of Landlord hereunder accruing after the date of
such sale or lease, and it shall be deemed and construed as a covenant running
with the land without further agreement between the parties or their successors
in interest, or between the parties and the purchaser, at any sale, or the
lessee of the Building, or of the land and Building, that the purchaser or the
lessee of the Building assumes and agrees to carry out any and all covenants and
obligations of Landlord hereunder. The words "re-enter" and "re-entry", and
"re-entered" as used in this Lease are not restricted to their technical legal
meanings. The term "business days" as used in this Lease shall exclude Saturdays
(except such portion thereof as is covered by specific hours in Article 5
hereof), Sundays and all days observed by State or Federal Government as legal
holidays (which shall not include days when the New York Stock Exchange is open
for trading). The terms "person" and "persons" as used in this Lease shall be
deemed to include natural persons, firms, corporations, associations and any
other private or public entities, whether any of the foregoing are acting on
their behalf or in a representative capacity.
SUCCESSORS, ASSIGNS, ETC.
49. The covenants, conditions and agreements contained in this Lease shall
bind and inure to the benefit of Landlord and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this Lease, their respective assigns.
50. Intentionally Omitted.
BROKER
51. Both parties represent and warrant that Major Development Inc. were the
sole Broker(s) who brought about this transaction. Each party agrees to
indemnify and hold harmless the other from any claims of any other Broker with
respect to this Lease. Landlord agrees to pay Broker pursuant to separate
agreement and to indemnify and hold Tenant harmless from any claims of any other
broker with respect to this Lease.
CAPTIONS
52. The captions are included only as a matter of convenience and for
reference, and in no way define, limit or describe the scope of this Lease nor
the intent of any provisions thereof.
NONLIABILITY OF LANDLORD
53. Neither Landlord, as an entity, nor Landlord or any successor in
interest, if an individual (which term as used herein includes aggregates of
individuals, such as joint ventures,
35
general or limited partnerships or associations or limited liability companies),
shall be under personal liability with respect to any of the provisions of this
Lease, and if Landlord hereto is in breach or in default of or with respect to
its obligations under this Lease, Tenant shall look solely to the equity of such
Landlord or individual in the land and Building, and any proceeds from the sale
of same and insurance proceeds, of which the Demised Premises form a part for
the satisfaction of Tenant's remedies and in no event shall Tenant attempt to
secure any personal judgment against Landlord or any partner, employee or agent
of Landlord by reason of such default by Landlord.
RESTRICTION ON RENTS
54. If at the commencement of, or at any time or times during the term of
this Lease, the Minimum Rent or Additional Rent reserved in this Lease shall not
be fully collectible by reason of any federal, state, county or city law,
proclamation, order or regulation, or direction of any public officer or body
pursuant to law, Tenant shall enter into such agreements and take such other
steps as Landlord may request and as may be legally permissible to permit
Landlord to collect the maximum rents which may, from time to time during the
continuance of such legal rental restriction, be legally permissible (and not in
excess of the amounts reserved therefore under this Lease). Upon the termination
of such legal rent restriction prior to the expiration of the term of this
Lease, (a) the rents shall become and thereafter by 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 the rents which would have been paid pursuant to this Lease
but for such legal rent restriction, less the rents paid by Tenant to Landlord
during the period(s) said legal rent restriction was in effect.
55. Intentionally Omitted.
MISCELLANEOUS
56. (A) This lease shall be construed without regard to any presumption or
other rule requiring construction against the party causing this lease to be
drafted. Further, if any provision of this lease shall, to any extent, be
invalid or unenforceable, the remainder hereof shall not be affected thereby,
and each provision of this lease shall be enforceable to the fullest extent
permitted by law.
(B) Whenever in this lease any words of obligation or duty are used and/or
implied herein, such words shall have the same force and effect as though made
in form of covenants.
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(C) All rights and remedies herein given to Landlord in this lease, and all
other rights and remedies allowed by law or in equity, are hereby reserved by
the Landlord as distinct, separate and cumulative rights and remedies, and no
one of them, whether exercised by Landlord or not, shall be deemed to be in
exclusion of any of the others.
(D) The submission of this lease for examination by Tenant does not
constitute an offer by Landlord or reservation of an option for the demised
premises, and this lease shall become effective as a lease only when and if
fully executed copies thereof are executed and exchanged between Landlord and
Tenant.
(E) Tenant shall not place any load on the floor of the demised premises
exceeding the floor load per square foot for which it is designed to carry and
which is allowed by law.
57. Intentionally Omitted.
INDEMNIFICATION
58. (A) Tenant hereby agrees to defend, indemnify and hold Landlord
harmless from and against any and all liability, damages, fines, suits, claims,
demands and actions by or against anyone, and costs and expenses of any kind or
nature (including but not limited to reasonable attorneys' fees and expenses),
due to, arising out of, based upon or connected with, except if caused by the
negligent acts or omissions of Landlord:
(i) Any breach, violation or non-performance of any covenant,
condition or agreement in this lease set forth and contained on the part of
Tenant to be fulfilled, kept, observed and performed; and/or
(ii) Any loss or damage to person or property occasioned by or arising
out of or in connection with the use and occupancy of the demised premises by
Tenant, its employees, agents, customers, invitees, contractors or
subcontractors, or by any use or occupancy which Tenant may permit or suffer to
be made of the demised premises; and/or
(iii) Injury to, or death of, any person or persons (including but not
limited to Tenant's customers and employees) occurring in the demised premises.
(B) Tenant shall, at its own cost and expense, defend any and all actions,
suits and proceedings which may be brought against, and Tenant shall pay,
satisfy and discharge any and
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all judgments, orders and decrees which may be made or entered against,
Landlord, its principals, disclosed or undisclosed, with respect to, or in
connection with, any of the foregoing. The comprehensive general liability
coverage maintained by Tenant pursuant to this Lease shall specifically insure
the contractual obligations of Tenant as set forth in this Article and/or as
provided in this Lease.
(C) If Landlord is made a party to any action, Landlord shall be entitled
to appear, defend or otherwise take part in the matter involved, at its
election, by counsel of Landlord's own choosing, at Tenant's cost and expense,
provided such action by Landlord does not limit or make void any liability of
any insurer of Landlord or Tenant hereunder in respect to the claim or matter in
question.
CERTIFICATIONS
59. Tenant shall, without charge, at any time and from time to time, within
five days after written request from Landlord, certify by written instrument,
duly executed, acknowledged and delivered, to Landlord or, at Landlord's
request, to any mortgagee, assignee of any mortgage or purchaser, or any
proposed mortgagee, proposed assignee of any mortgage or proposed purchaser, or
any other person, firm or corporation specified by Landlord:
(i) that this lease is unmodified and in full force and effect (or, if
there has been modification, that the same is in full force and effect as
modified and stating the modifications);
(ii) whether or not either Landlord or Tenant is in default in the
performance of any of the terms, covenants or conditions of this lease and,
if in default, specifying each such default; and
(iii) the dates, if any, to which the fixed minimum rent, additional rent
and other charges hereunder have been paid in advance.
It is intended that any such certificate delivered pursuant to this Article
may be relied upon by Landlord, by any prospective purchaser of the building,
the mortgagee of any mortgage, and by any other person, firm or corporation
specified by Landlord.
In the event Tenant may require a similar certificate, Landlord shall
provide same.
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NO LIENS, ENCUMBRANCES
60. (A) No person or entity other than Landlord shall have any power, right
or authority to do or allow any act or make any contract which would create any
lien, mortgage or other encumbrance upon the demised premises or the parcel of
land on which the demised premises is located, or of any improvements thereon,
or of any interest of Landlord therein. Nothing contained in this lease shall be
deemed or construed in any way as constituting the consent or request of
Landlord, express or implied, by inference or otherwise, to any contractor,
subcontractor, architect, laborer or materialman for the performance of any
labor or the furnishing of any material for, in, to or on the demised premises.
If Tenant shall cause or allow any installation, alteration, addition,
decoration, repair, replacement, renewal or improvement to be made to the
demised premises or to the building, or cause or allow any labor to be performed
or material to be furnished therein or thereon, or purchase any fixtures,
chattels or equipment for use in the demised premises, neither Landlord nor the
demised premises nor the land or building shall be liable for the payment of any
expense incurred or for the value of any work done or material furnished, or
fixtures, chattels or equipment purchased for use in the demised premises, but
all such installations, alterations, additions, decorations, fixtures, chattels
and equipment, repairs, replacements and improvements and labor, services and
materials shall (except as hereinafter expressly provided) be made, furnished
and purchased for cash and without chattel mortgage financing or any other form
of financing at Tenant's own expense, and Tenant shall be solely and wholly
responsible to its contractors, subcontractors, laborers, suppliers, architects
and materialmen who perform or furnish such labor services and/or material,
fixtures, chattels and equipment. Under no circumstances shall Tenant at any
time purchase and/or install any furniture, furnishings, fixtures, chattels or
equipment for use in the demised premises, nor any additions thereto, or any
renewals thereof or replacements or substitutions therefor, upon terms and
conditions wherein and whereby a lien shall or may be filed against the real
estate, or against Landlord or its title or interest in the real estate.
Notwithstanding the foregoing, Tenant shall not be prohibited from encumbering
its furniture and such of its equipment located in the demised premises as shall
constitute solely personal property and which shall not become or be deemed to
become part of the realty, and such of its trade fixtures as may be removed
without damage or injury to the realty, by security agreements executed under
the Uniform Commercial Code and from filing Financing Statements (UCC-1's)
appropriately with governmental authorities in connection with such security
agreements.
(B) The participation by Landlord or of any of Landlord's representatives
in any conference with any architect, engineer, contractor, subcontractor,
materialman, laborer or other person or firm retained by Tenant to perform work
or furnish labor or services for the demised
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premises, shall not make Landlord or any of Landlord's representatives liable
for the payment of any portion of the cost of such work, or entitle any
architect, engineer, contractor, subcontractor, materialman or laborer to file
any mechanic's lien against the demised premises, or the building of which the
same form a part, or against Landlord.
(C) This lease shall constitute notice to the world that no mechanic's lien
may or can be filed validly against Landlord in connection with the demised
premises, without Landlord's express written consent thereto, at any time
throughout the term of this lease. Any mechanic's lien filed against the demised
premises, or the building of which the same form a part, for work claimed to
have been done for or materials claimed to have been furnished to Tenant, (a)
shall be discharged of record by Tenant at Tenant's expense within thirty (30)
days after written notice thereof by Landlord, by payment, deposit, bond and
order of a court of competent jurisdiction, or otherwise, as may be required by
law and (b) either a release or satisfaction of lien shall be filed with the
County Clerk of the county in which the Building is situated within such thirty
(30) day period, and (c) a copy of such release or satisfaction, as the case may
be, certified by the County Clerk shall be delivered to Landlord within three
(3) days after such filing. Tenant's failure to do so shall be deemed a material
breach of this lease.
(D) In the event such mechanic's lien is not discharged timely, as
aforesaid, Landlord may discharge same for the account of and at the expense of
Tenant by payment, bonding or otherwise, without investigation as to the
validity thereof or of any offsets or defenses thereto, and Tenant, within five
(5) days after being billed therefore, shall promptly reimburse Landlord, as
Additional Rent, for all costs, disbursements, fees and expenses, including
without limitation, legal fees, incurred in connection with so discharging said
mechanic's lien, together with interest thereon from the time or times of
payment until reimbursement by Tenant. Tenant shall, within fifteen (15) days of
demand therefore by Landlord, pay to Landlord as Additional Rent, Landlord's
reasonable legal fees and disbursements, but the foregoing shall not limit the
extent of Tenant's liability as set forth above.
(E) In the event such mechanic's lien is not discharged timely, as
aforesaid, Landlord, in addition to all other rights granted to Landlord in this
Lease and without limitation, may institute a dispossess summary proceeding
based upon such failure to discharge any such lien. In the event Tenant fails to
deliver to Landlord the certified copy of the release or satisfaction required
hereunder within the time period provided for the delivery thereof to Landlord,
Landlord shall have the right to assume that such mechanic's lien has not been
discharged and Landlord shall
40
have all of the rights and remedies provided for herein based upon Tenant's
failure to discharge any such lien.
(F) It is further expressly understood and agreed between the parties
hereto that Landlord may apply all or a portion of the security deposit made by
Tenant hereunder toward discharging any such mechanic's lien and the cost,
expenses, fees and disbursements, including, without limitation, legal fees, in
connection therewith. Upon notification by Landlord of the application of all or
a portion of the security deposited by Tenant, Tenant shall, within five (5)
days after receipt of said notice, restore the security deposit to such amount
held by Landlord prior to application thereof. Tenant's failure or refusal to
restore the security as aforesaid within said five (5) day period shall
constitute a material default under this Lease.
TENANT'S OPERATING OBLIGATIONS
61. Tenant covenants and agrees that during the term of this Lease:
(A) Tenant shall at its sole cost and expense obtain and maintain
throughout the term of this lease all licenses, permits and authorizations
required in order to enable it to properly and lawfully conduct its business in
the demised premises, it being expressly understood and agreed, however, that
the failure on the part of Tenant to obtain or to maintain any of such licenses,
permits or authorizations, or extensions or renewals thereof, shall not release
or relieve Tenant from the performance and observance by it of all of its
obligations under this lease. Tenant covenants and agrees that, upon written
request of Landlord, it shall, within thirty (30) days from the date of the
request, furnish Landlord with an up-to-date copy of any permit or license
required by any authority having jurisdiction therein for Tenant to conduct
business at the demised premises. In the event Tenant fails to submit to
Landlord, upon request, the items called for hereunder, such failure shall be a
default under the terms of this Lease.
(B) Tenant shall maintain any plumbing in the demised premises and shall
not dispose of any foreign substances in the plumbing facilities which are
damaging to the plumbing or which are illegal to dispose of through the
plumbing. Tenant shall not permit any waste, or other foreign substances to be
thrown or drawn into the pipes. Tenant shall maintain the plumbing in good
order, repair and condition, and repair any damage resulting from any violation
of this paragraph. At Tenant's sole cost and expense Tenant shall make any
repairs to the other plumbing in the Building, if damage results from Tenant's
improper use of the plumbing in the Building or demised premises.
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(C) Tenant shall retain a licensed professional exterminating service which
will service the demised premises, if necessary, so as to keep the demised
premises free of vermin.
(D) Tenant agrees that (i) Landlord shall have the right to prohibit the
use by Tenant of any method of operation, advertising or interior display if, in
Landlord's reasonable opinion, the use thereof would impair the reputation of
the building in which the demised premises are located, or is otherwise out of
harmony with the general character thereof, and upon notice from Landlord,
Tenant shall forthwith refrain from or discontinue such activities, (ii) Tenant
will, upon Landlord's request, reprimand any of Tenant's employees who shall
violate any of the provisions of this Lease or the rules and regulations
relating to the Building, and (iii) Tenant will not encumber or obstruct or
permit to be encumbered or obstructed any hallway, service elevator, stairway or
passageway in the Building.
(E) Tenant covenants and agrees that throughout the term, it shall not
unreasonably suffer, allow or permit any offensive or obnoxious vibration,
noise, odor or other undesirable effect to emanate from the demised premises, or
any machine or other installation therein, or otherwise unreasonably suffer,
allow or permit any such obnoxious vibration, noise, odor or other undesirable
effect to constitute a nuisance or otherwise interfere with the safety, comfort
or convenience of Landlord, or other tenants, occupants, customers agents, or
invitees or any other person(s) lawfully in or upon the Building and upon
Landlord's notice to Tenant, Tenant shall within fifteen (15) days thereof
remove or control the same, and if any such condition is not so remedied, then
Landlord may, at its discretion, either: (i) cure such condition and add any
cost and expense incurred by Landlord therefore to the next installment of
Minimum Rent due under this Lease, and the Tenant shall then pay said amount as
Additional Rent hereunder; or (ii) treat such failure by Tenant to remedy such
condition as a material default of this Lease, entitling the Landlord to any of
its remedies pursuant to the terms of this Lease.
(F) Tenant shall, throughout the term of this Lease, maintain, repair,
service and replace when necessary, all doors leading into and out of the
demised premises and all hardware appurtenant thereto, including, but not
limited to, locks, hinges, silencers, door stops, door jams, door closers,
latchsets, flushbolts, door frames, thresholds and door knobs. Landlord shall
have no liability or obligation whatsoever regarding the maintenance, repair,
service and replacement of the foregoing.
(G) Intentionally Omitted.
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(H) Tenant will accumulate all of its garbage, rubbish and refuse (which
term "refuse" as used in this lease shall mean and include, but not be limited
to crates, boxes, containers, papers, bottles, and similar items) for disposal
only within the interior of the demised premises and in well covered sealed
sanitary plastic bags or containers designed to prevent odors and vermin of any
kind from emanating therefrom. Tenant shall further handle and dispose of all
rubbish, garbage and waste from Tenant's operations in accordance with rules and
regulations established by Landlord.
(I) Tenant shall not change (whether alteration, replacement, rebuilding or
otherwise) the exterior color and/or architectural treatment of the demised
premises or of the Building or any part thereof without the approval of Landlord
not to be unreasonably withheld or delayed.
(J) Tenant shall not subject any fixtures or equipment in or on the demised
premises which are affixed to the realty, to any mortgages, liens, conditional
sales agreements, security interests or encumbrances.
(K) Tenant shall not perform any act or carry on any practice which may
damage, mar or deface the demised premises or any other part of the Building.
(L) Tenant shall not install, operate or maintain in the demised premises
any electrical equipment which will overload the electrical system therein, or
any part thereof, beyond its reasonable capacity for proper and safe operation,
as determined by Landlord, in light of the overall system and requirements
therefore in the Building, or which does not bear underwriters' approval.
Landlord recognizes and agrees that Tenants installation of computers,
typewriters, printers, as well as other typical office equipment, as well as the
installation of a T-1 line and fiber optics will not affect same.
(M) Tenant shall not suffer, allow or permit the erection or display in, on
or from the demised premises any exhibits, banners, decorations, flags, xxxxxxx
or any other similar or dissimilar kind or form of description or display
without Landlord's prior written consent in each instance not to be unreasonably
withheld or delayed.
(N) Tenant shall not record or attempt to record or permit the recording of
this lease, any memorandum of this lease, any assignment of this lease, any
sublease of the demised premises or any other instrument relative to this lease.
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HAZARDOUS MATERIALS
62. (A) Tenant shall not deposit, dump, store or pour on any part of the
soil of the demised premises, or permit the accumulation on the demised premises
of dry or liquid waste, chemicals, solvents or other material, garbage, property
no longer used by Tenant or any other substance or material which, if left on
the demised premises, could cause injury to the health of or discomfort to
persons in the neighborhood or on the demised premises, or adversely affect the
environment of the demised premises, including the air above and the ground
below and surrounding the demised premises, nor shall Tenant permit its
subtenants, guests, contractors or any other person to do any of the foregoing.
Tenant, at its expense, shall promptly remove or cause the removal of, or of
permitted by applicable law encapsulate, all such material located at the
demised premises in compliance with this Lease and all applicable laws.
(B) (i) The term "Hazardous Substances", as used in this Lease shall not
include common cleaners but shall include, without limitation, flammables,
explosives, radioactive materials, asbestos, chloroflouorocarbons (CFCs),
polychlorinatedbiphenyls (PCBs), chemicals known to cause cancer or reproductive
toxicity, pollutants, contaminants, hazardous wastes, toxic substances or
related materials, petroleum and petroleum products and substances declared to
be dangerous, hazardous or toxic under any Law or regulation now or hereafter
enacted or promulgated by any Governmental Authority. Notwithstanding anything
to the contrary set forth in this Article, cleaning fluids, detergents and other
supplies customarily used in connection with the maintenance and repair of real
property similar to the Leased Premises in comparable areas shall be permitted
to be stored and used for such purposes in compliance with all Laws.
(ii) Without limiting the generality of any other provision of this Lease,
Tenant shall not cause or permit to occur:
(a) Any violation of any federal, state or local law, now or hereafter
enacted, related to environmental conditions on , over, under or about the
demised premises, or arising from Tenant's use or occupancy of the demised
premises, including, but not limited to, ozone, soil and ground water
conditions; or
(b) The use, generation, release, manufacture, refining, production,
processing, storage or disposal of any Hazardous Substance on, over, under, or
about the demised premises, or the transportation to or from the demised
premises of any Hazardous Substance.
(iii) Tenant shall, at Tenant's own expense:
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(a) Comply with all laws regulating the use, generation, storage,
removal, transportation, disposal, encapsulation or remediation of Hazardous
Substances, to the extent relating to Hazardous Substances located at the
demised premises, except with respect to those Hazardous Substances existing at
the Demised Premises prior to Tenant's occupancy or if cause by Landlord or
other tenants thereof;
(b) Make all submissions to, provide all information required by, and
comply with all requirements of all governmental authorities required under the
laws to the extent relating to Hazardous Substances located at the demised
premises;
(c) Prepare and submit the required plans and all related bonds and
other financial assurances and carry out all such cleanup plans should any
governmental authority asserting appropriate jurisdiction demand that a cleanup
plan be prepared and that a cleanup be undertaken because of any deposit, spill,
discharge or other release of Hazardous Substances at or from the demised
premises; and
(d) Promptly provide all information regarding the use, generation,
storage, transportation or disposal of Hazardous Substances that is requested by
Landlord.
(iv) If Tenant fails to fulfill any duty imposed under subparagraph (iii)
within a reasonable time, Landlord may, after reasonable prior notice to Tenant,
do so, and in such case, Tenant shall cooperate with Landlord in order to
prepare all documents Landlord deems necessary or appropriate to determine the
applicability of the Laws to the demised premises and Tenant's use thereof, and
to comply therewith and Tenant shall execute all documents promptly upon
Landlord's request. No such action by Landlord and no attempt made by Landlord
to mitigate damages under any Law shall constitute a waiver of any of Tenant's
obligations under this Section. Tenant's obligations and liabilities under this
subparagraph (iv) shall survive the expiration or earlier termination of this
Lease.
(v) Tenant shall indemnify, defend and hold harmless Landlord and its
officers, directors, beneficiaries, shareholders, partners, agents and employees
from all fines, suits, procedures, claims and actions of every kind, and all
costs associated therewith (including reasonable attorneys' and consultants'
fees) arising out of or in any way connected with any deposit, spill, discharge
or other release of Hazardous Substances at or from the demised premises caused
by Tenant, or from Tenant's failure to provide all information, make all
submissions and
45
take all steps required by all governmental authorities under applicable laws
and all environmental laws required of Tenant as provided herein. Tenant's
obligations and liabilities under this subparagraph (v) shall survive the
expiration or earlier termination of this Lease.
GOVERNING LAW
63. This Lease shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
JURISDICTION
64. For purposes of settling any and all disputes hereunder, each party
hereto submits itself to the personal jurisdiction of any court, federal or
state, sitting in the State of New York.
AIR RIGHTS
65. (A) The Premises are let to TENANT subject to all applicable laws,
rules, regulations, orders, covenants, restrictions and easements and to the
reservation by LANDLORD of all air rights above, around and about the Premises
and the right to increase the size of the building of which the Premises form a
part or the buildings surrounding the same, based on the air rights appurtenant
thereto.
(B) TENANT understands and agrees that LANDLORD, and anyone claiming
by, through or under LANDLORD, may from time to time undertake alterations or
additions to the building of which the Premises form a part or any lands added
thereto, construct additional buildings or improvements thereon and make
alterations thereto, build additional stories on any of the same, construct
multi-story, elevated or underground facilities therein, and construct roofs,
walls, and any other improvements over, to or in connection with any part
thereof. No easement for light or air is included in or appurtenant to the
demise of the Premises or to TENANT'S rights pursuant to this Lease.
(C) LANDLORD shall have the sole right, without TENANT'S consent to
use, sell, assign, lease or otherwise dispose of any and all right, title and
interest in and to any air rights and development rights relating to the
Premises and/or the land thereunder. In the event of any such use, sale,
assignment, lease or other disposition thereof by LANDLORD, LANDLORD shall be
entitled to receive all sums derived therefrom. TENANT shall not be deemed an
interested party and as such required to waive any interest therein.
Nonetheless, TENANT shall, upon request by LANDLORD, promptly execute any waiver
or other documents that LANDLORD may deem necessary in connection with
LANDLORD'S disposition of any
46
such rights. TENANT hereby irrevocably appoints LANDLORD the attorney-in-fact of
TENANT for the purpose of executing any such waivers or other documents.
(D) TENANT shall not increase the height, bulk or floor area of the
Premises or construct, place or erect anything on the roof of the building of
which the Premises form a part or install machinery, equipment or any other
object on the roof of said premises or take any action which might or will
adversely affect or reduce the amount of air rights or development rights which
are applicable to said premises and to the land thereunder.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed this Lease
as of the day and year first written above.
WITNESS FOR LANDLORD: GARDEN XXXXXX ASSOCIATES LP
BY:/s/ GARDEN XXXXXX ASSOCIATES LP
-------------------------------------
NAME:
TITLE:
WITNESS FOR TENANT: AMERICAN MEDICAL ALERT CORPORATION
BY: /S/ XXXXXX X. XXXXXX
-------------------------------------
NAME: Xxxxxx X. Xxxxxx
TITLE: CEO President
47
