Exhibit 10.6.2
LEASE
THIS LEASE AGREEMENT (the "Lease") is made this 1st day of July, 1998, by and
between XXXXXXX PARK ASSOCIATES, a New York general partnership, having an
office at: 000 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000 (hereinafter called
"Landlord"), and XXXXXX X. BLACK CORPORATION, a New York corporation, having a
notice address at: 000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 (hereinafter called
"Tenant").
WITNESSETH
ARTICLE 1. DEMISED PREMISES.
Landlord hereby leases to Tenant, and the Tenant hereby rents from the Landlord
that area on the plan attached hereto as Exhibit "A" (hereinafter sometimes
called the "Demised Premises" or the "Premises"), in building section 10-A-1
(hereinafter collectively referred to as the "Building") situated at 00 Xxxxxxx
Xxxx, Xxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx (all such real estate of Landlord
hereinafter referred to as the "Land"), together with the non-exclusive right to
the parking areas shown on Exhibit "B".
The Demised Premises consist of a space, containing approximately 13,780 square
feet ("Floor Area"). The purpose of Exhibit "A" is to show the approximate
location of the Demised Premises.
ARTICLE 2. TERM.
To have and to hold the Demised Premises for a term of ten (10) years, to
commence on Substantial Completion of the Work (as hereafter defined) (the
"Commencement Date"). Tenant shall have the right, provided no Event of Default
then exists or occurs prior to the termination date, to terminate the Lease at
any time beginning six (6) years from the Commencement Date by providing no less
than six (6) months' written notice and a certified check or cashier's check in
the amount shown on Exhibit "C" attached hereto consistent with the date notice
is given. If Tenant fails to provide such payment with notice or an Event of
Default then exists or thereafter occurs, Tenant shall not have the right to
terminate the Lease until one (1) year following the notice then sent.
ARTICLE 3. MINIMUM RENT
Tenant shall pay to Landlord as a minimum guaranteed rent ("Minimum Rent") for
each year of the lease term the amounts shown on Exhibit "D" attached hereto
payable in monthly installments as shown on Exhibit "D" attached hereto. All
such payments shall be made in advance on or before the first day of each
calendar month during the term of this Lease, without demand or setoff, the
first installment to be paid on or before the Commencement Date of the
term. If the Commencement Date is not the first day of a month, Tenant shall pay
a pro rata portion of the Minimum Rent for the first and last month of the Lease
term, based upon the number of days in such month, and assuming 30 as the total
days in the month.
ARTICLE 4. TAXES.
Beginning with the Commencement Date, and continuing during the balance of the
term, Landlord shall pay prior to delinquency all real estate taxes and
assessments or any payment in lieu thereof (PILOT Payments), both general and
special, imposed by any federal, state or local governmental authority or any
other taxing authority having jurisdiction over the building for the Demised
Premises (collectively "Real Estate Taxes").
Beginning with the Commencement Date and continuing during the balance of the
term, Tenant shall pay Landlord within fifteen (15) days of receipt of an
invoice of its Proportionate Share (as hereafter defined) of any and all of the
Real Estate Taxes, together with any and all expenses incurred by Landlord in
negotiating, appealing or contesting such taxes and assessments (collectively
"Costs"), which Costs shall not exceed Tenant's Proportionate Share of tax
savings from any such negotiation, appeal or contest. Tenant's Proportionate
Share shall be a fraction, the numerator of which is the Floor Area of the
Demised Premises, and the denominator of which shall be the floor area of all
buildings included in all of the tax parcels which encompass the Demised
Premises, however, in computing Proportionate Share for Articles 15 and 18, the
denominator shall be the floor area of all buildings on the Land.
ARTICLE 5. USE.
Tenant agrees that the Demised Premises shall be occupied by Tenant and by no
other person or entity without Landlord's written consent, which consent shall
not be unreasonably withheld, and shall be used only for general office use,
including, but not limited to, a telephone call center with market research, and
for no other use or purpose.
ARTICLE 6. CONDUCT OF BUSINESS.
Tenant will maintain the Demised Premises at its own expense, in a clean,
orderly and sanitary condition and free of insects, rodents, vermin and other
pests; will not permit accumulations of garbage, trash, rubbish and other
refuse, but will remove the same at its expense; will not burn any trash or
garbage whatsoever; will cause all such garbage, trash or rubbish to be removed;
will comply with all laws and ordinances and all valid rules and regulations of
governmental authorities, including, but not limited to, all recommendations of
the municipal and state agency or agencies regulating environmental and health
controls ("SEPA"), the Environmental Protection Agency ("EPA") and the Fire
Insurance Ratings Organization ("FIRO"), now or hereafter enacted, promulgated
or adopted, or any successor entities, with respect to the use or occupancy of
the Demised Premises by Tenant.
ARTICLE 7. NON-DISRUPTION.
Tenant shall take no action which would create or contribute to any work
stoppage, strike, picketing, labor disruption or dispute, or which would
interfere, in any way, with the business of Landlord or any other tenants of
Landlord or with the rights and privileges of any invitees, licensees, employees
or any other persons lawfully in and upon the Land, or which would cause any
impairment or reduction of the good will and reputation of the Building or the
Land.
ARTICLE 8. DELIVERY OF DEMISED PREMISES.
Tenant has inspected the Demised Premises prior to the execution of this Lease
and accepts the Demised Premises in its present condition, "AS IS" except
Landlord will perform the work (the "Work") described in Exhibit "F" attached
hereto and prepared by Xxx Xxxxx, Architect. Substantial Completion of the Work
shall be deemed to have occurred when the Work shall have been performed to
permit the use of the Demised Premises by Tenant for its intended purposes but
shall not require completion of punch list items that shall be established by
Landlord and Tenant upon notice from Landlord that substantially all of the Work
has been completed. Upon completion of the Work, Tenant shall reimburse Landlord
for the cost within fifteen (15) days of invoice. Landlord shall have no
obligation to perform any other work in or on the Demised Premises except as
provided in Articles 15, 19 and 20.
Notwithstanding the foregoing, Landlord represents to Tenant that (i) the
Demised Premises are free and clear of all tenancies except for the use in
common with other tenants and their permittees of the restrooms, hallways,
parking areas and other common areas; (ii) the Demised Premises will be clean,
orderly and in a sanitary condition at the Commencement Date, free of insects,
rodents, vermin and other pests, garbage, trash, rubbish and other refuse and,
to Landlord's actual knowledge, in compliance with all applicable municipal,
state and federal governmental rules, laws and regulations regarding its
condition, and use and maintenance by Landlord; (iii) to Landlord's actual
knowledge, the Leased Premises contains no hazardous materials which are in
violation of any applicable environmental laws, rules or regulations; (iv) no
portion of the Demised Premises is affected by any special assessments, whether
or not constituting a lien thereon; (v) the Demised Premises has access to and
from public highways or rights-of-way which are adequate for the passage of
motor vehicles and Landlord has no actual knowledge of any pending or threatened
termination of such access.
ARTICLE 9. SIGNS.
Landlord agrees that Tenant may affix the sign on the interior of the Building
and a canopy, each as shown on Exhibit "E" attached hereto. All other signs
shall be approved by Landlord, such approval not to be unreasonably withheld.
ARTICLE 10. PROPERTY IN THE DEMISED PREMISES.
All leasehold or building improvements or additions, such as light fixtures and
heating and air-conditioning equipment and all construction work whether done by
Tenant and/or Landlord shall, when installed or completed, attach to the
Building and become and remain the property of the Landlord. All other fixtures,
personal property (including telephone systems, telephone lines and facsimile
systems) and signs shall remain the property of the Tenant subject at all times
to the Landlord's claim for rent and other sums which may become due to the
Landlord under this Lease. Tenant further agrees that all personal property of
every kind or description which may at any time be in the Demised Premises shall
be at the Tenant's sole risk, or at the risk of those claiming under the Tenant.
Landlord shall not be responsible or liable to Tenant for any loss or damage
that may be occasioned by the acts or omissions of persons occupying any space
in the Building adjacent to or adjoining Tenant's Demised Premises, or any part
thereof. Except for the negligence or willful misconduct of Landlord, its
agents, employees or contractors, Landlord shall not be responsible or liable to
Tenant for any loss or damage resulting to Tenant or its property or its
business from roof leaks, water, gas, steam, fire, or the bursting, stoppage or
leaking water and/or sewer pipes, or from the heating or plumbing fixtures, or
from electric wires, or from gas or odors, or caused in any manner whatsoever.
ARTICLE 11. TRADE FIXTURES.
Tenant may, at the expiration of the term, remove all the Tenant's trade
fixtures (including personal property such as telephone systems, telephone lines
and facsimile systems) which can be removed without substantial damage to, or
undue defacement of the Demised Premises, and that any and all damage to the
Demised Premises or to Landlord's Building (resulting from or caused by such
removal) shall be promptly repaired at Tenant's expense.
ARTICLE 12. ALTERATIONS.
Tenant covenants not to make any additional structural improvements,
alterations, improvements, modifications or changes of or upon any part of the
Demised Premises including, but not limited to, floor, wall and ceiling finishes
and changes to mechanical or electrical equipment, except by prior written
consent of Landlord, such consent not to be unreasonably withheld. All
alterations to the Premises shall be made in accordance with all the
requirements of applicable laws, ordinances and regulations and shall remain for
the benefit of the Landlord unless otherwise provided in the said written
consent; and, the Tenant further agrees, in the event of making such alterations
as herein provided, to indemnify and save harmless the Landlord from all
expense, liens, claims or damages to either persons or property or the Demised
Premises, arising out of or resulting from the undertaking or making of said
alterations.
ARTICLE 13. LIENS.
No work which Landlord permits Tenant to do nor which Tenant is obligated to
perform
pursuant to this Lease, whether in the nature of erection, construction,
alteration or repair, shall be deemed to be for the immediate use and benefit of
Landlord so that no mechanic's or other lien or encumbrance or charge shall be
allowed against the right, interest or estate of Landlord by reason of any
consent given by Landlord to Tenant to improve the Demised Premises. Tenant
shall pay promptly all persons furnishing labor or materials with respect to any
work performed by Tenant or its contractor on or about the Demised Premises.
In the event any lien is made or filed as the result of any work done by or on
behalf of Tenant, Tenant shall cause the same to be discharged by deposit,
bonding, payment or otherwise satisfactory to Landlord within thirty (30) days
after written request by Landlord. If Tenant shall fail to cause such lien to be
discharged within the period aforesaid, then, in addition to any other right or
remedy which Landlord may have, Landlord may, but shall not be obligated to,
discharge said lien either by paying the amount claimed to be due or by
procuring the discharge of such lien by deposit or by bonding proceeding. Any
amount so paid by Landlord and all costs and expenses incurred by Landlord in
connection therewith, together with interest thereon from the respective dates
of Landlord's making of the payment and incurring of the cost and expense, shall
constitute additional rent payable by Tenant under this Lease and shall be paid
by Tenant to Landlord on demand. The aforesaid interest shall be at the higher
rate of fifteen (15%) percent per annum or two percent above the prime interest
rate per annum announced from time to time by Chase Lincoln, at its office in
Rochester, New York, such rate to change automatically from time to time,
effective as of the effective date of each change in said prime rate. Nothing
herein contained shall be construed as a consent on the part of Landlord to
subject the estate of Landlord to liability under the mechanics' lien law, it
being expressly understood that Landlord's estate shall not be subject to such
liability. Nothing contained in or contemplated by this Lease shall be deemed or
construed in any way as constituting the consent or request of Landlord, by
inference or otherwise, for the performance of any work or service or the
furnishing of any materials for which any lien could be filed against the
Demised Premises or the Building or any part thereof, nor as giving Tenant any
right, power or authority to contract for or permit the performance of any work
or services or the furnishing of any materials for which any lien could be filed
against the Demised Premises or the Building or any part thereof
ARTICLE 14. UTILITIES.
Commencing on the Commencement Date, Tenant shall pay for all utility services
rendered or furnished to the Demised Premises including heat, gas, water,
electricity, sprinkler charges assessed by any governmental authority, fire line
charges, sewer rental, sewage treatment facilities charges and all other similar
charges, together with all taxes levied or other charges on such utilities and
governmental charges based on utility consumption for the Demised Premises. Said
utility services shall be provided by separate meter, which meter shall be paid
for by Landlord. In no event shall Landlord be liable to Tenant for any damages,
costs, expenses, liability or obligations which may be incurred resulting from
the quality, quantity, failure or interruption of such services to the Demised
Premises.
ARTICLE 15. MAINTENANCE.
Landlord covenants and agrees to keep and maintain, repair and replace as
necessary, (except as hereinafter set forth), the parking areas, driveways and
entrance roads leading to the Demised Premises (including using diligent efforts
to remove snow), lighting of the same, landscaping, grounds maintenance (the
"CAM") and the roof and other exterior portions of the Building, the structural
parts of the Building and the plumbing, sewage and utility lines for the
Building and the Demised Premises, including the mechanical and electrical
equipment and systems, lighting fixtures and bulbs; except, however, that
Landlord shall not be responsible for damage caused by any act or negligence of
Tenant, its employees, agents, invitees, licensees or contractors. Landlord
covenants that the heating, ventilating and air conditioning system shall be
fully operational at the Commencement Date and shall comply with the plans and
specifications to be attached hereto, Landlord shall assign all warranties to
Tenant.
Beginning with the Commencement Date and continuing during the balance of the
term, Tenant shall pay its Proportionate Share of any and all costs and expenses
incurred by Landlord of protecting, operating, repairing, lighting, cleaning,
painting, removing snow, ice and debris for the Building and the Land, police
protection, security and security patrol, fire protection, regulating traffic,
inspecting, repairing and maintaining of machinery and equipment used in the
operation of the Building and the Land, the cost and expense of maintaining and
repairing any sprinkler system in the Building, the cost and expense of
installing, maintaining and repairing any burglar or fire alarm systems in the
Building, the cost and expense of landscaping and shrubbery, expenses of
utilities for the Building and the Land, but excluding any items of capital
replacements or repairs of structural components of the Building (collectively
the "Maintenance Expense").
Landlord shall furnish Tenant a statement in reasonable detail of the actual
Maintenance Expense paid during the prior period and Tenant's annual
Proportionate Share of Maintenance Expense for such period shall be paid within
thirty (30) days of the date of the statement. Tenant reserves the right to
audit the books and records of Landlord to verify the accuracy of the statement.
If the audit evidences any inaccuracies which are acknowledged by Landlord as
being accurate, there shall be an adjustment between Landlord and Tenant, with
payment to or repayment by Landlord, as the case may require.
Tenant shall, at its own cost and expense, enter into a regularly scheduled
janitorial service to clean the Demised Premises, shall repair the heating,
ventilating and air conditioning system servicing the Demised Premises and shall
enter into a regularly (no less than quarterly) scheduled maintenance contract
for the same. The service contractor shall be approved in writing by Landlord,
such approval not to be unreasonably withheld. Tenant shall not be responsible
to replace any of the heating, ventilating and air conditioning systems provided
Tenant has entered into and enforced such maintenance contract.
ARTICLE 16. SURRENDER OF DEMISED PREMISES.
Tenant covenants and agrees to vacate, remove from and deliver up and surrender
the possession of the Demised Premises to Landlord upon the expiration of the
term, without any specific notice to vacate, and upon any earlier termination of
this Lease, as herein provided, in as good condition and repair as the same
shall be after completion of all improvements by Tenant following delivery of
the Demised Premises at the Commencement Date, or which may have been put by the
Tenant during the continuance thereof, ordinary wear and tear, and damage by
fire or the elements alone excepted. Nothing herein shall be construed as
relieving the Tenant of any of its maintenance obligations provided for in this
Lease.
Tenant covenants and agrees not to assign this Lease or to sublet the whole or
any part of the Demised Premises, or to permit any other persons to occupy same
without the prior written consent of the Landlord, which consent shall not be
unreasonably withheld. Any assignment or subletting, even with the consent of
Landlord, shall not relieve Tenant from liability for payment of rent or other
sums herein provided or for the obligation to keep and be bound by the terms,
conditions and covenants of this Lease. The acceptance of rent from any other
person shall not be deemed to be a waiver of any of the provisions of this Lease
or to be a consent to the assignment of this Lease or subletting of the Demised
Premises.
Any consent by Landlord to an assignment or sublease by Tenant, shall apply only
to the specific transaction thereby authorized and shall not relieve Tenant from
the requirement of obtaining prior written consent of Landlord to any further
assignment or sublease.
An assignment for the benefit of creditors or by operation of law shall not be
effective to transfer any rights to assignee without the prior written consent
of Landlord.
If Tenant, as an assignee of this Lease, is a partnership and if at any time
during the term hereof or any extension or renewal thereof, the person or
persons who, at the time of the execution of this Lease, owns or own the
controlling interest or the general partner's interest, as the case may be,
ceases to own the controlling interest or the general partners' interest upon
such cessation of ownership, Tenant shall promptly notify Landlord in writing of
such change, and Landlord may terminate this Lease at any time after such change
in control by giving Tenant ninety (90) days prior written notice of such
termination.
Landlord may withhold its consent to a subletting or assignment of the Lease for
any of the following reasons, and the withholding of consent shall be deemed to
be reasonable:
(a) the proposed assignee or subtenant desires to use the Premises for
a use other than that which is permitted herein and the proposed use:
(1) conflicts or is incompatible with other uses in the
Building; or
(2) would adversely affect the reputation of the Building or
the other business located therein.
(b) Tenant is in default of any of the terms, covenants or provisions
of this Lease;
(c) Landlord has had or Landlord is aware of others who have had
previous unsatisfactory experience with the proposed subtenant or assignee.
A. Tenant covenants and agrees to provide to Landlord on or before the
Commencement Date and to keep in force during the entire term of this Lease: (1)
comprehensive general liability insurance for the mutual benefit of Landlord and
Tenant relating to the Demised Premises and its appurtenances in an amount of
not less than Two Million Dollars ($2,000,000.00) in respect of personal injury
or death and of not less than One Million Dollars ($1,000,000.00) in respect of
property damage, which insurance shall name Landlord as an additional insured;
and (2) fire and extended coverage, vandalism, malicious mischief and special
extended coverage insurance in an amount adequate to cover the cost of
replacement of all leasehold or building improvements in the Demised Premises
which were originally constructed or provided by or on behalf of Tenant as well
as the replacement cost of all fixtures, equipment, decorations, contents and
personal property therein. Tenant agrees to deliver to Landlord at least fifteen
(15) days prior to the time such insurance is first required to be carried by
Tenant, and thereafter at least fifteen (15) days prior to the expiration of any
such policy, a certificate of insurance of all policies procured by Tenant in
compliance with its obligations hereunder.
B. All of the aforesaid insurance shall be written by one (1) or more
responsible insurance companies reasonably satisfactory to Landlord; all such
insurance may be carried under a blanket policy covering the Demised Premises
and any other of Tenant's businesses; and shall contain endorsements that: (1)
the insurer shall endeavor to provide thirty (30) days' written notice to
Landlord or its designee if such insurance is to be canceled or amended by
registered mail; and (2) Tenant shall be solely responsible for payment of
premiums for such insurance. In the event Tenant fails to furnish such
insurance, the Landlord may, after ten (10) days' written notice to Tenant,
obtain such insurance and the premiums shall be paid by Tenant to the Landlord
upon demand.
C. The minimum limits of the comprehensive general liability policy of
insurance shall in no way limit or diminish Tenant's liability under Subsection
D hereof
D. Tenant will indemnify, protect, save harmless, and defend Landlord
from and against any and all claims and demands in connection with any accident,
injury or damage whatsoever caused to any person or property arising directly or
indirectly out of Tenant's initial construction, alteration, renovation,
remodeling and/or fixturing of the Demised Premises (whether or not occurring
prior to the Commencement Date hereof), or out of the business conducted in the
Demised Premises or occurring in, on or about the Demised Premises or any
part thereof, or arising directly or indirectly from any act or omission of
Tenant or any of its contractors, subcontractors or concessionaires or
subtenants or their respective licensees, servants, agents, employees,
contractors or subcontractors (collectively "Agents"), and from and against any
and all costs, expenses and liability incurred in connection with any such claim
or proceeding brought thereon, except as a result of the sole negligence of
Landlord. The comprehensive general liability coverage maintained by Tenant
pursuant to Subsection A above shall specifically insure the contractual
obligations of Tenant as set forth herein.
B. If at any time and from time to time, as a result of or in
connection with any failure by Tenant to comply with all laws, rules,
regulations or ordinances, or any act of omission or commission by Tenant or its
Agents, or as a result of or in connection with the use of which the Demised
Premises are part (notwithstanding that such use may be for the purposes
hereinbefore permitted or that such use may have been consented to by Landlord),
the fire insurance rate(s) or other types of insurance maintained by Landlord
applicable to the Demised Premises or the Building or to any other premises in
said Building, or to any adjacent property owned or controlled by Landlord, or
an affiliate of Landlord, and/or to the contents in any or all of the aforesaid
properties (including rent insurance relating thereto) shall be higher than that
which would be applicable for the least hazardous type of occupancy legally
permitted therein, Tenant agrees that it will pay to Landlord, on demand, such
portion of the premiums for all such insurance policies in force with respect to
the aforesaid properties (including rent insurance relating thereto) and the
contents of any occupant thereof as shall be attributable to such higher
rate(s). If Tenant installs any electrical equipment that overloads the lines in
the Demised Premises or the Building, Tenant shall, at its own cost and expense
promptly make whatever changes are necessary to remedy such condition and to
comply with all requirements of the Landlord, the SEPA, EPA and the FIRO and
their successors and any similar body and any governmental authority having
jurisdiction thereof. For the purpose of this paragraph, any finding or schedule
of the SEPA, EPA or FIRO having jurisdiction thereof shall be deemed to be
conclusive. In the event that this Lease so permits and Tenant engages in the
preparation of food or packaged foods or engages in the use, sale or storage of
inflammable or combustible material; Tenant shall install chemical extinguishing
devices (such as ansul) approved by the FIRO and shall keep such devices under
service as required by such organization. If gas is used in the Demised
Premises, Tenant shall install gas cutoff devices (manual and automatic).
F. Each insurance policy carried by Landlord or Tenant and insuring all
or any part of the Building, the Demised Premises, including improvements,
alterations and changes in and to the Demised Premises made by either of them
and Tenant's trade fixtures and contents therein, shall be written in a manner
to provide that the insurance company waives all right of recovery by way of
subrogation against Landlord or Tenant, as the case may be, in connection with
any loss or damage to the Demised Premises, property or businesses, Building and
contents caused by any of the perils covered by fire and extended coverage, and
business interruption insurance, or any other insurance required hereunder or
for which either party may be reimbursed as a result of insurance coverage
affecting any loss suffered by it. Neither Landlord nor Tenant shall be liable
to the other for any such loss or damage, provided, however, that the foregoing
waivers of
liability given by Landlord and Tenant to each other shall apply only to the
extent of any recovery made by the parties hereto under any policy of insurance
now or hereafter issued.
G. Landlord agrees to maintain: (1) comprehensive general liability
insurance relating to the Building and its common areas on an occurrence basis
in the minimum amount of Two Million Dollars ($2,000,000.00); (2) fire and
extended coverage, vandalism, malicious mischief and special extended coverage
insurance to the extent of the replacement value of the structure of the
Building excluding improvements made by or on behalf of Tenant.
H. Beginning with the Commencement Date, and continuing during the
balance of the term, Tenant shall pay its Proportionate Share of any and all
costs and expenses relating to the insurance maintained or agreed to be
maintained by Landlord for the Building and the Land and all improvements
surrounding the Building, together with any and all expenses incurred by
Landlord in negotiation, appealing or contesting such premiums, costs and
expenses (collectively the "Insurance Expense").
Landlord shall estimate Tenant's annual Proportionate Share of such Insurance
Expense and one-twelfth (1/12) of the amount so estimated shall be paid by
Tenant on the first (1st) day of each calendar month in advance commencing on
the Commencement Date. Within ninety (90) days after the end of each calendar
year, Landlord shall furnish Tenant a statement in reasonable detail of the
actual Insurance Expense paid during the prior year and thereupon there shall be
an adjustment between Landlord and Tenant with payment to or repayment by
Landlord, as the case may require, to the end that Landlord shall receive the
entire amount of Tenant's annual Proportionate Share of Insurance Expense for
such period. Any repayment that may be due by Landlord to Tenant may, at
Landlord's option, be credited on Tenant's next succeeding payment or payments
pursuant to this Article 18. If Tenant's Proportionate Share of Insurance
Expense is greater than the amount paid by Tenant during the prior year, Tenant
shall pay the Landlord the difference between the amount paid by Tenant and the
amount actually due within thirty (30) days after receipt of Landlord's
statement.
ARTICLE 19. FIRE OR OTHER CASUALTY.
A. In the event all or part of the Demised Premises shall be damaged or
destroyed by fire or other casualty insured under the standard fire and casualty
insurance policy with approved standard extended coverage endorsement applicable
to the Demised Premises, Landlord shall, except as otherwise provided herein,
commence to repair and/or rebuild the same and diligently pursue completion
within one hundred eight (180) days from the commencement of construction,
subject to FORCE MAJEURE. If Substantial Completion is not achieved within such
one hundred eighty (180) day period, Tenant may terminate this Lease upon notice
to Landlord any time prior to Substantial Completion. Landlord's obligation
hereunder shall be limited to the Building and improvements originally provided
by Landlord at the Commencement Date of the term of this Lease. Landlord shall
not be obligated to repair, rebuild or replace any property belonging to Tenant
or any improvements to the Demised Premises furnished by Tenant. If there should
be
any interference with the operation of Tenant's business in the Demised Premises
as a result of such damage or destruction, the Minimum Rent shall xxxxx in
proportion to the amount of Floor Area of Demised Premises damaged divided by
the Floor Area of the Demised Premises until such repairs are completed as are
reasonably necessary for Tenant to recommence its business. Unless this Lease is
terminated by Landlord, Tenant shall, at its cost and expense, repair and
restore the Demised Premises in a manner and to at least a condition equal to
that existing prior to such damage or destruction, except for the Building and
improvements to be reconstructed by Landlord as above set forth, and the
proceeds of all insurance carried by Tenant on the property and improvements as
well as fixtures and contents in the Demised Premises shall be held in trust by
Tenant for such purposes. Tenant agrees to commence such work promptly after the
receipt of notice by Landlord that it has elected to repair and/or rebuild the
Demised Premises, and Tenant shall diligently pursue such work to its
completion. Notwithstanding the foregoing, Tenant and Landlord agree to
reasonably coordinate all such work.
B. Notwithstanding anything to the contrary contained in the preceding
Subsection A or elsewhere in this Lease, Landlord at its option may terminate
this Lease on thirty (30) days notice to Tenant, given within ninety (90) days
after the occurrence of any damage or destruction if (1) the Demised Premises be
damaged or destroyed as a result of a risk which is not entirely covered by
Landlord's insurance, if any, or (2) the Demised Premises be damaged and the
cost to repair the same shall be more than twenty-five percent (25%) of the cost
of replacement thereof, or (3) the Demised Premises be damaged during the last
three (3) years of the term, or (4) the Building shall be damaged to the extent
of twenty-five percent (25%) or more of the then monetary value thereof (whether
the Demised Premises be damaged or not), or (5) any or all of the Building is
damaged (whether or not the Demised Premises are damaged) to such an extent that
the Building cannot be operated as an integral unit.
C. Except to the extent specifically provided for in this Lease, none
of the rentals payable by Tenant, nor any of Tenant's other obligations under
any provisions of this Lease, shall be affected by any damage to or destruction
of the Premises by any cause whatsoever, and Tenant hereby specifically waives
any and all additional rights it might otherwise have under any law or statute.
ARTICLE 20. EMINENT DOMAIN.
A. Demised Premises.
(1) If the whole of the Demised Premises shall be taken by any public
or quasi-public authority under the power of eminent domain, condemnation or
expropriation or in the event of a conveyance in lieu thereof, then this Lease
shall terminate on the date when Tenant is required to yield possession thereof
(2) If less than twenty-five (25%) percent of the Demised Premises
shall be so taken or conveyed, then this Lease shall terminate only as to the
part taken or conveyed as of the date
Tenant is required to yield possession thereof, provided that Landlord shall
have the right to provide alternate space within the Building to increase the
balance of the Floor Area of the Demised Premises to the Floor Area described in
Article 1.
(3) If more than twenty-five (25%) percent of the Demised Premises
shall be so taken or conveyed and such partial taking or conveyance shall render
that portion not so taken or conveyed unsuitable for the purpose for which the
Demised Premises were leased, and Landlord is unable or elects not to provide
alternate space within or in close proximity to the Building to increase the
balance of the Floor Area of the Demised Premises to the Floor Area described in
Article 1, then Landlord and Tenant shall each have the right to terminate this
Lease by written notice given to the other within sixty (60) days of the date
Tenant is required to surrender possession of the part so taken or conveyed.
(4) If any part of the Demised Premises is so taken or conveyed, and
the Lease is not terminated as set forth above, then (a) this Lease shall
continue in full force and effect, except that the Minimum Rent and other rent
(including reimbursements under Articles 4. 15 and 18) payable to Landlord shall
be reduced in the same proportion that the Floor Area of the Demised Premises so
taken or conveyed (after deducting all additional floor area provided by
Landlord) bears to the original Floor Area, such reductions commencing as of the
date that Tenant is required to surrender possession of the part taken or
conveyed; and (b) Landlord shall upon receipt of the award in condemnation or
the consideration for a conveyance made in lieu of condemnation diligently make
all necessary repairs or alterations to restore that portion of the Demised
Premises remaining as near to its former condition as the circumstances will
permit, and to the Building to the extent necessary to constitute the portion of
the Building not taken as a complete architectural unit; provided, however, that
Landlord in any event shall not be required to spend for such repair and
alteration work an amount in excess of the amount received by Landlord as
damages for the taking of such part of the Demised Premises exclusive of the
portion of such damages attributable to the then current market value of the
land taken or condemned and after deducting the cost of collecting such damages,
and Tenant, at Tenant's expense, shall, to the extent of any recovery therefor,
make all necessary repairs and alterations to, and restoration of, Tenant's
fixtures, floor covering, furniture, equipment, signs and contents.
(5) If more than twenty (20%) percent of the floor area of the Building
shall be taken or conveyed as aforesaid, notwithstanding the fact that the
Demised Premises is not so taken or conveyed and notwithstanding anything to the
contrary set forth above, Landlord shall have the right, at its option, to be
exercised by notice in writing to terminate this Lease effective, at its option,
either upon the date title vests in the condemning authority, or upon the date
Landlord is required to deliver possession of the part taken or conveyed.
(6) As used in this Article, the amount received by Landlord, as
compensation for any such taking or consideration for any such conveyance shall
mean that portion of the award in condemnation or consideration for such
conveyance received by Landlord from such condemning authority which is free and
clear of all prior claims or collections by the holders of
any mortgages or other security interest.
(7) As used in this Article, "Demised Premises" and "portion of Demised
Premises" shall not include fixtures, floor covering, furniture, equipment,
signs and contents of Tenant, but this shall not limit Tenant's obligation
above.
B. Waiver of Right to Compensation.
In the event of a taking under the power of eminent domain of the Demised
Premises or any other portion of the Building, whether whole or partial, all
compensation awarded for such taking of the fee and leasehold estate, or
consideration paid for a conveyance in lieu of condemnation, as damages or
otherwise, shall belong to and be the property of Landlord, except that Tenant
shall be entitled to recover from the condemning authority, but not from
Landlord, such amounts as may be separately awarded to Tenant for removal
expenses, leasehold improvements, fixtures and moving expenses, provided no such
claim shall diminish or adversely affect Landlord's award. TENANT MAY ALSO
RECOVER FROM LANDLORD ANY AWARD TO LANDLORD FOR LEASEHOLD IMPROVEMENTS INSTALLED
BY TENANT. Tenant hereby assigns to Landlord all right, title and interest of
Tenant in and to any award made for leasehold damages and/or diminution in the
value of Tenant's leasehold estate.
ARTICLE 21. SUBORDINATION, ATTORNMENT AND
MORTGAGEE'S APPROVAL
The Landlord reserves the right and privilege to subject and subordinate this
Lease at all times to the lien of any mortgage or mortgages now or hereafter
placed upon the Landlord's interest in the said Demised Premises and on the Land
and Buildings or upon any buildings hereafter placed upon the Land of which the
Demised Premises are a part (the holder of any such mortgage hereinafter
referred to as mortgagee), and to any and all advances to be made under such
mortgages, and all renewals, modifications, extensions, consolidations and
replacements thereof, provided however that such mortgagee enters into a
non-disturbance agreement with Tenant in form customarily used by Landlord and
mortgagee for Landlord's tenants.
Tenant covenants and agrees to execute and deliver upon demand, such further
instrument or instruments subordinating this Lease to the lien of any such
mortgage or mortgages as shall be desired by the Landlord and any mortgagees or
proposed mortgagees, and hereby irrevocably appoints Landlord the
attorney-in-fact of Tenant to execute and deliver such instrument or instruments
for and in the name of Tenant in the event Tenant shall fail to execute such
instrument or instruments within ten (10) days after written notice.
Provided such purchaser or mortgagee agrees in writing to recognize Tenant's
rights under this Lease, Tenant shall, in the event of the sale or assignment of
Landlord's interest in the Building, or in the event of any proceedings brought
for the foreclosure of, attorn to and recognize such purchaser or mortgagee as
landlord under this Lease, and in any such events, Landlord named
herein shall not thereafter be liable for any obligations, terms or conditions
of this Lease.
If any mortgagee shall have given prior written notice to Tenant that it is a
holder of a mortgage as described in the first paragraph of this Article and
such notice includes the address to which notices to such mortgagee are to be
sent, then Tenant agrees to give to such mortgagee notice simultaneously with
any notice given to Landlord to correct any default of Landlord and agrees that
the mortgagee shall have the right, within thirty (30) days after receipt of
said notice, to correct or remedy such default before Tenant may take any action
under this Lease by reason of such default.
Landlord agrees to use diligent efforts to obtain a non-disturbance agreement
from Landlord's lender prior to the Commencement Date.
ARTICLE 22. ESTOPPEL CERTIFICATE
At any time, and from time to time, upon the written request of Landlord or any
mortgagee, Tenant, within ten (10) days of the date of such written request,
agrees to execute and deliver to Landlord and/or such mortgagee, without charge
and in a form reasonably satisfactory to Landlord and/or such mortgagee, a
written statement: (a) ratifying this Lease; (b) confirming the Commencement
Date and expiration date of the term of this Lease; (c) certifying that Tenant
is in occupancy of the Demised Premises, and that this Lease is in full force
and effect and has not been modified, assigned, supplemented or amended, except
by such writings as shall be stated; (d) certifying that all conditions and
agreements under this Lease to be satisfied and performed have been satisfied
and performed, except as shall be stated; (e) certifying that Landlord is not in
default under this Lease and there are no defenses or offsets against the
enforcement of this Lease by Landlord, or stating the, defaults and/or defenses
claimed by Tenant; (f) reciting the amount of advance rental, if any, paid by
Tenant and the date to which rental has been paid, (g) reciting the amount of
security deposited with Landlord, if any; and (h) any other information which
Landlord or the mortgagee shall reasonably require. If Landlord requires more
than one statement per each calendar year, Landlord shall reimburse Tenant for
its out-of-pocket expenses for each statement following the first one in such
year.
ARTICLE 23. DEFAULT.
All rights and remedies of Landlord herein enumerated shall be cumulative, and
none shall exclude any other rights or remedies allowed by law or in equity. The
occurrence of any of the following shall constitute a default and breach of this
Lease by Tenant:
A. If Tenant shall fail, neglect or refuse to pay any installment of
fixed Minimum Rent at the time and in the amount as herein provided, or to pay
any other monies agreed by it to be paid promptly when and as the same shall
become due and payable under the terms hereof and if any such default should
continue for a period of more than ten (10) days after written notice, provided
that no notice shall be required following the second default in any particular
calendar
year and only a ten (10) day grace period shall be applicable; or if
B. Tenant shall abandon or vacate the Demised Premises or shall fail,
neglect or refuse to keep and perform any of the other covenants, conditions,
stipulations or agreements herein contained, and in the event any such default
shall continue for a period of more than thirty (30) days after notice thereof
is given in writing to Tenant by Landlord or such longer period of time not to
exceed one hundred twenty (120) days following notice if such cure cannot
reasonably be cured within such thirty (30) days period, Tenant commences to
cure such matter within the thirty (30) day period and continues to diligently
cure such matter.
In the event of any such default or breach of this Lease by Tenant, Landlord
shall have any of the rights provided by law or in equity and any or all of the
remedies hereinafter set forth, and further, in the event of such default or
breach of this Lease by Tenant, the Tenant does hereby authorize and fully
empower Landlord or Landlord's agent to immediately cancel or terminate this
Lease and reenter and remove all persons and their property, and such property
may be stored in a public warehouse or elsewhere at the cost of the Tenant, all
without service of notice or resort to legal process and without being deemed
guilty of any manner of trespass and without prejudice to any remedies which
might otherwise be used by Landlord.
Any payment required to be made by Tenant under the provisions of this Lease not
made by Tenant when and as due shall thereupon be deemed to be due at the rate
of twelve percent (12%) per annum and payable by Tenant to Landlord on demand
with interest thereon from the date when the particular amount became due to the
date of payment thereof to Landlord.
The Landlord may, however, at its option, at any time after such default or
violation of condition or covenant, reenter and take possession of the Premises
and remove said property without such reentry working a forfeiture of the rents
and other charges, sums and reimbursements to be paid and the covenants,
agreements and conditions to be kept and performed by Tenant for the full term
of this Lease. In such event, Landlord shall have the right, but not the
obligation, to divide or subdivide the Demised Premises in any manner Landlord
may determine and to lease or let the same or portions thereof for such periods
of time and at such rentals and for such use and upon such covenants and
conditions as Landlord may elect, applying the net rentals from such letting
first to the payment of Landlord's expenses incurred in dispossessing Tenant and
the cost and expense of making such improvements, alterations and repairs in the
Demised Premises as may be necessary in order to enable Landlord to relet the
same, and to the payment of any brokerage commissions or other expenses of
Landlord in connection with such reletting. The balance, if any, shall be
applied by Landlord from time to time on account of the payments due or payable
by Tenant hereunder with the right reserved to Landlord to bring such action or
proceedings for the recovery of any deficits remaining unpaid as Landlord may
deem favorable from time to time without obligation to await the end of the term
hereof for the final determination of Tenant's obligations upon a default.
ARTICLE 24. HOLDING OVER.
In the event Tenant remains in possession of all or any part of the Demised
Premises after the expiration of the term of this Lease, Tenant shall be deemed
to be occupying the Demised Premises as a tenant from month to month at a
monthly rental equal to 1.50 multiplied by the sum of (i) the monthly
installment of Minimum Rent payable during the last month of the term, and (ii)
one-twelfth (1/12) of all items of additional rent or other charges payable or
paid during the last Lease year.
ARTICLE 25. ACCESS TO DEMISED PREMISES.
Tenant further agrees to permit the Landlord or the Landlord's agents to inspect
or examine the Demised Premises at any reasonable time without notice, and to
permit the Landlord to make such repairs or improvements to the Building that
the Landlord is obligated to make under this Lease, and Landlord shall not be
liable to Tenant for any damage, loss, costs or expenses resulting from such
repairs or alterations unless due to the gross negligence or willful misconduct
of Landlord.
Tenant further agrees that on and after one year next preceding the expiration
of the term of this Lease the Landlord or its agents shall have the right to
show the Demised Premises to potential tenants after notice to Tenant and
accompanied by a representative of Tenant, and to place notices offering the
Premises "For Rent" on any part of the Demised Premises or on the land adjacent
thereto.
ARTICLE 26. QUIET ENJOYMENT
Landlord covenants and agrees that if the Tenant shall perform all of the
covenants and agreements herein stipulated to be performed on the Tenant's part,
the Tenant shall, at all times during said term, have the peaceable and quiet
enjoyment and possession of the Demised Premises without any manner of hindrance
from the Landlord or any persons lawfully claiming through the Landlord.
Landlord shall comply with all laws, rules and regulations affecting the Demised
Premises but shall not be responsible for costs or expenses relating to the
repair or maintenance obligations of Tenant.
ARTICLE 27. WAIVER
No waiver of any covenant or condition or of the breach of any covenant or
condition of this Lease shall be taken to constitute a waiver of any subsequent
breach of such covenant or condition, nor to justify or authorize the
nonobservance on any other occasion of the same or any other covenant or
condition hereof; nor shall the acceptance by the Landlord of rent or other
payments at any time when the Tenant is in default under any covenant or
condition hereof be construed as a waiver of such default or of the Landlord's
right to terminate this Lease on account of such default; nor shall any waiver
or indulgence granted by the Landlord to the Tenant be taken as an estoppel
against the Landlord, it being expressly understood that if at any time the
Tenant shall be in default in any of its covenants or conditions hereunder, an
acceptance by the Landlord of rental or other payments during the continuance of
such default or the failure on the part of the Landlord promptly to avail itself
of such other rights or remedies as the Landlord may have, shall not be
construed as a waiver of such default, but the Landlord may at any time
thereafter, if such default continues, terminate this Lease on account of such
default in the manner provided for in this Lease.
ARTICLE 28. ACCORD AND SATISFACTION.
Any payments by Tenant or receipt by Landlord of a lesser amount than the
monthly Minimum Rent and all other charges herein provided may be applied in any
manner desired by Landlord notwithstanding any denotation made by Tenant, and no
endorsement or statement on any check or any letter accompanying any check or
payment shall prejudice Landlord's right to recover the balance of such rent or
pursue any other remedy provided in this Lease.
ARTICLE 29. NOTICES AND PAYMENTS.
Any xxxx, statement, notice, communication or payment which Landlord or Tenant
may desire or be required to give to the other party shall be in writing and
shall be sent to the other party by overnight courier, registered or certified
mail or hand delivered to the address specified in the opening paragraph of this
Lease or to such other address as either party shall have designated to the
other by like notice, and the time of the rendition of such shall be deemed when
same is deposited in a depository for such overnight courier or in an official
United States Post Office, charges and postage prepaid or received by hand
delivery.
All payments required under this Lease are to be paid in legal tender and lawful
money of the United States or the equivalent, at Landlord's above specified
address.
ARTICLE 30. RELATIONSHIP OF PARTIES.
Nothing contained in this Lease shall be deemed or construed by the parties
hereto or by any third party to create the relationship of principal and agent
or of partnership or of joint venture or of any association whatsoever between
Landlord and Tenant, it being expressly understood and agreed that neither the
computation of rent nor any other provisions contained in this Lease nor any act
or acts of the parties hereto shall be deemed to create any relationship between
Landlord and Tenant other than the relationship of landlord and tenant.
ARTICLE 31. LIMITATION OF LIABILITY.
Neither the Landlord nor any successor in interest that may be an individual,
legal entity, joint venture, tenancy in common, firm or partnership, general or
limited, nor any partners, officers, directors or members of Landlord, or such
successor in interest, shall be subject to any personal liability in respect to
any of the covenants or conditions of this Lease. The Tenant shall look solely
to the equity of the Landlord in the Building and the rents, issues and profits
derived therefrom for the satisfaction of the remedies of the Tenant in the
event of a breach by the Landlord. It is mutually agreed that this clause is and
shall be considered an integral part of the aforesaid Lease, and such
exculpation is absolute.
ARTICLE 32. TENANT DEFINED.
The word "Tenant" shall be deemed and taken to mean each and every person or
party mentioned as the Tenant herein, be the same one or more; and, if there
shall be more than one Tenant, any notice required or permitted by the terms of
this Lease may be given by or to any one thereof, and shall have the same force
and effect as if given by or to all thereof. The use of the neuter singular
pronoun to refer to Tenant shall be deemed a proper reference even though Tenant
may be an individual, a partnership, a corporation, or a group of two or more of
any of the same. The necessary grammatical changes required to make the
provisions of this Lease apply in the plural sense where there is more than one
Tenant and to either corporations, partnership, or individuals, males or
females, shall in all instances be assumed as though in each case fully
expressed.
ARTICLE 33. CAPTIONS AND SECTION NUMBERS.
The captions, section numbers and article numbers appearing in this Lease are
inserted only as a matter of convenience and in no way define, limit or describe
the scope or intent of such sections of this Lease nor in any way affect this
Lease.
The Tenant, for itself and for all persons claiming through or under it, hereby
expressly waives any and all rights which are or may be conferred upon the
Tenant by any present or future law to redeem the Demised Premises, or to any
new trial in any action of ejectment under any provision of law, after reentry
thereupon, or upon any part thereof, by the Landlord, or after any warrant to
dispossess or judgment in ejectment. If the Landlord shall acquire possession of
the Demised Premises by summary proceedings, or in any other lawful manner
without judicial proceedings, it shall be deemed a reentry within the meaning of
that word as used in this Lease. The Tenant and the Landlord both waive a trial
by jury and the right to a change of venue from the court where any action may
be filed by Landlord on any or all issues arising in any action or proceeding
between the parties hereto or their successors, under or connected with this
Lease, or any of its provisions.
ARTICLE 35. BROKER.
Tenant covenants, warrants and represents that there was no broker instrumental
in consummating this Lease and that no conversations or prior negotiations were
had with any other broker concerning the renting of the Demised Premises. Tenant
agrees to hold Landlord harmless against any claims for brokerage commission
arising out of any conversations or negotiations between Tenant and any broker.
ARTICLE 36. INTERPRETATION OF LEASE PROVISIONS.
This Lease shall be governed by and construed in accordance with the applicable
laws of the state of New York. If any term, covenant or condition of this Lease
is capable of two constructions, one of which would render the provision void
and the other of which would render the provision valid, then the provision
shall have the meaning which shall render it valid. If any term or provision of
this Lease, or the application thereof to any person or circumstances shall to
any extent be invalid or unenforceable, the remainder of this Lease or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforceable to the fullest extent permitted by law.
ARTICLE 37. OPTION.
The submission of this Lease to Tenant does not constitute a reservation of or
option for the Demised Premises, nor does it constitute an offer by Landlord to
the Tenant. This Lease shall become effective as a lease only upon execution and
delivery thereof by Landlord and Tenant.
ARTICLE 38. NON-RECORDATION.
Neither Tenant nor Landlord shall record this Lease, or a Memorandum of this
Lease, without the prior written consent of the other party to this Lease.
ARTICLE 39. PROVISIONS BINDING.
Except as herein otherwise expressly provided, the provisions hereof shall be
binding upon and shall inure to the benefit of the heirs, executors,
administrators, successors and permitted assigns, respectively, of the Landlord
and the Tenant. Each term and each provision of this Lease to be performed by
the Tenant shall be construed to be both a covenant and a condition. Any
covenants contained in this Lease that contemplate performance after the term of
this Lease shall survive the term. The reference contained to successors and
assigns of Tenant is not intended to constitute a consent to assignment by
Tenant but has reference only to those instances in which Landlord may have
given written consent to a particular assignment.
ARTICLE 40. ENTIRE AGREEMENT.
This Lease and the Exhibits, if any, attached hereto and forming a part hereof,
set forth all the covenants, promises, agreements, conditions and understandings
between Landlord and Tenant concerning the Demised Premises and there are no
covenants, promises, agreements, conditions or understandings, either oral or
written, between them other than are herein set forth. Except as herein
otherwise provided, no subsequent alteration, amendment, change or addition to
this Lease shall be binding upon Landlord or Tenant unless reduced to writing
and signed by them.
ARTICLE 41. ENVIRONMENTAL.
The Tenant covenants, represents and warrants to the Landlord, which covenants,
representations and warranties shall survive the Term:
(1) The Tenant shall, at its sole cost and expense, comply and
cause all Agents and any other persons occupying or present on
the Demised Premises to comply with
all federal, state and local environmental laws, rules,
regulations, ordinances and orders concerning or relating to
the use, generation, handling or disposal of "Hazardous
Materials" as hereinafter defined, (collectively the
"Applicable Environmental Laws") and shall not cause or permit
any Hazardous Materials to be brought upon, kept or used in,
on, under or about, the Demised Premises. Tenant shall not
allow any Hazardous Materials to emanate from, or originate
at, the Demised Premises. Without limiting the foregoing, if
the presence of any Hazardous Materials brought upon, kept or
used on the Demised Premises results in any contamination of
any property or persons, the Tenant shall promptly take all
actions at its sole cost and expense as are necessary or
requested by Landlord or any governmental or
quasi-governmental authority having jurisdiction therefor to
comply with all Applicable Environmental Laws, including
removal of any Hazardous Materials;
(2) The Tenant shall immediately notify the Landlord of the
Tenant's receipt of any oral or written report, citation,
notice or other communication or writing regarding the Demised
Premises (and deliver a copy thereof to the Landlord) by, to,
or from any governmental or quasi- governmental authority
empowered to regulate or oversee any of the foregoing
activities or in any way related to or connected with
Hazardous Materials;
(3) The Tenant acknowledges and agrees that in the event (a) any
Hazardous Materials brought upon, kept or used in, on, under
or about the Demised Premises by Tenant or its Agents are
caused to be removed from the Demised Premises or the
Building, the EPA number or other governmental number assigned
to the Hazardous Materials so removed shall not be in the name
of the Landlord or any of Landlord's lenders, and the Tenant
shall assume all of the potential and actual liability of
Landlord and Landlord's mortgagees for such removed Hazardous
Materials and (b) any action, including, without limitation,
removal, is required to comply with Applicable Environmental
Laws, the Tenant shall notify the Landlord in writing at least
30 days prior to the taking of such action and shall use its
best efforts to minimize interference and disturbance of the
Landlord's and the other tenants' and occupants' use and
enjoyment of the Building, Land and buildings adjacent thereto
in the taking of such action.
If the Tenant breaches the obligations stated above or if the presence of
Hazardous Materials brought upon, kept or used on the Demised Premises or any
other part of the Building by the Tenant results in contamination of the Demised
Premises, the Land or any other property whether or not owned or controlled by
Landlord, then the Tenant at Tenant's expense, shall indemnify, protect, defend,
save and hold harmless the Landlord and Landlord's mortgagees from and against
any and all claims, demands, losses, expenses, damages, liabilities, fines,
penalties, charges, administrative and judicial proceedings and orders,
judgments, remedial action requirements, enforcement actions of any kind, and
all costs and expenses incurred in connection therewith, including, without
limitation, diminution in value of the Building, the Land and the residual
estate of the Demised Premises, damages for the loss or restriction on use of
rentable or usable space of the Demised Premises, damages arising from any
adverse impact on marketing of space in the Building or the Demised Premises or
the Land or other buildings of Landlord, costs incurred in
connection with any investigation of work required by any federal, state or
local governmental agency or political subdivision because of Hazardous
Materials in, on, under, or about, emanating from or originating at, the Demised
Premises, and sums paid in settlement of claims, attorneys fees, consultant fees
and expert fees, damages for the interruption of the Landlord's business,
including, lost profits, incidental damages and consequential damages) which
arise (prior, during or after the Term) as a result of the Tenant's breach or
such contamination directly or indirectly, arising out of (i) the presence in,
on, about, under, emanating from or originating at the Demised Premises of any
Hazardous Materials brought upon, kept or used in, on, under or about the
Demised Premises or the Land by Tenant or its Agents or any releases or
discharges of any Hazardous Materials brought upon, kept or used in, on, under
or about the Demised Premises or the Land by Tenant or its Agents and (ii) any
activity carried on or undertaken on or off the Demised Premises in connection
with the handling, treatment, removal, storage, decontamination, cleanup,
transport or disposal of any Hazardous Materials brought upon, kept or used in,
on, under or about the Demised Premises or the Land by Tenant or its Agents and
(iii) the breach of any provision of this Article 41.
For purposes of this Article 41, Hazardous Materials means and includes (A)
radioactive materials, biological or medical waste or contaminants, and (B) any
hazardous or toxic waste, substance or material defined as such in: (i) the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601, et seq., as amended, (ii) any so-called "Superfund" or "Superlien"
law, or (iii) any other federal, state or local statute, law, ordinance, code,
rule, regulation, order or decree regulating, relating to, or imposing standards
of conduct or liability concerning, any hazardous, toxic, dangerous, or unsafe
waste, substance or material, whether now or hereafter in effect.
ARTICLE 42. PRIME GROUND LEASE.
It is understood and agreed by Tenant that Landlord, as head tenant, is leasing
the Demised Premises and the Land under a lease (the "Prime Lease") with the
County of Monroe Industrial Development Agency and that all rights of Tenant
hereunder is subject to the Prime Lease. Landlord represents that nothing herein
is inconsistent with any provision of the Prime Lease.
ARTICLE 43. OPTION PERIOD.
Provided that Tenant is in possession and no default or breach hereunder by
Tenant has occurred, Tenant shall have the right and option to extend the Lease
term for one (1) additional term of three (3) years. Such renewal shall be upon
all of the same terms and conditions contained in this Lease for the lease term,
but subject to an adjustment of Minimum Rent as provided in Exhibit "C". Such
option to extend shall be exercised, if at all, by Tenant giving written notice
to
Landlord of such extension at the later of (i) one year prior to the end of the
then existing term or (ii) thirty (30) days after notice from Landlord to Tenant
given no earlier than fourteen (14) months prior to the end of the then existing
term. This option is granted to Tenant only and shall not be exercised by Tenant
on behalf of any third party or by any assignee of this Lease.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the Landlord and
Tenant have caused this Lease to be signed and sealed as of the day and year
first above written.
LANDLORD:
XXXXXXX PARK ASSOCIATES,
a New York general partnership
By:
-------------------------------------
TENANT:
XXXXXX X. BLACK CORPORATION,
a New York corporation
By:
-------------------------------------
ATTEST:
EXHIBIT A
[Map of Xxxxxxx Park Building 10-1]
EXHIBIT B
[Diagram of occupancy and Parking at
Xxxxxxx Park Building 10-1]
EXHIBIT C
ARTICLE 2. TERM
Early termination under Article 2. Term.
Year Amount
---- ------
6 $117,000
7 90,000
8 65,250
9 33,750
Xxxxxx X. Black June 19, 0000
Xxxxxxx Xxxx - Xxxx 10-1
EXHIBIT D
ARTICLE 3. MINIMUM RENT
Minimum rent, years 1-10, $150,000 annual, payable $12,500 monthly, fully net.
Option period: $165,000 annual, payable $13,750 monthly, fully net.
Xxxxxx X. Black June 19, 0000
Xxxxxxx Xxxx - Xxxx 10-1
EXHIBIT E
ARTICLE 9. SIGNS
Tenant agrees to provide signage and canopy at its expense.
Xxxxxx X. Black June 19, 0000
Xxxxxxx Xxxx - Xxxx 10-1
EXHIBIT F
ARTICLE 8. DELIVERY OF DEMISED PREMISES
Landlord will provide premises in accordance with specifications prepared by
Xxxxxx Xxxxx, Xx., Architect, and plans and specifications provided by Xxxxx
Xxxxxx of Spectrum Design Group. The current draft budget for the space
improvements (attached) exceeds the original anticipated aggregate contribution
by both parties. Xxxxxxx Park will contribute on a shared equal basis with
Xxxxxx X. Black up to $250,000 or a total shared aggregate of $500,000. Any
additional funding requirements to be Xxxxxxx Park's responsibility. During the
interim period of lease execution and award of contracts, value engineering and
specifications will be reviewed by Xxxxxx X. Black, Xxxxxxx Park, Spectrum
Design, and Tyra Associates. All final specification decisions rest with Xxxxxx
Xxxxx. Any change orders issued for additional work after award to be Xxxxxx
Xxxxx'x responsibility.
The time-frame required for construction is anticipated to 100 +/- 20 days.
Progress payments will be required and paid equally by both parties.
Xxxxxx X. Black June 19, 0000
Xxxxxxx Xxxx - Xxxx 10-1
XXXXXX X. BLACK
XXXXXXX PARK - BUILDING 10-1
BUILD-OUT BUDGET
ATTACHMENT TO EXHIBIT F
----------------------------- ----------------------- ------------------- ------------------
Tyra's 6/5/98 bid 321,824
----------------------------- ----------------------- ------------------- ------------------
Exclusions:
----------------------------- ----------------------- ------------------- ------------------
Window Treatment (allowance) 1,000
----------------------------- ----------------------- ------------------- ------------------
Millwork (allowance) 3,000
----------------------------- ----------------------- ------------------- ------------------
Life safety (allowance) 6,000
----------------------------- ----------------------- ------------------- ------------------
Data Tenant
----------------------------- ----------------------- ------------------- ------------------
UPS Tenant
----------------------------- ----------------------- ------------------- ------------------
Subtotal 10,000
----------------------------- ----------------------- ------------------- ------------------
----------------------------- ----------------------- ------------------- ------------------
Owner Allowances: 4,800
----------------------------- ----------------------- ------------------- ------------------
Utility separate 4,000
----------------------------- ----------------------- ------------------- ------------------
Dumpsters 4,000
----------------------------- ----------------------- ------------------- ------------------
Permit-arch 2,500
----------------------------- ----------------------- ------------------- ------------------
Permits 3,765
----------------------------- ----------------------- ------------------- ------------------
Remediation 4,000
----------------------------- ----------------------- ------------------- ------------------
Laborer 3,200
----------------------------- ----------------------- ------------------- ------------------
Subtotal 26,265
----------------------------- ----------------------- ------------------- ------------------
----------------------------- ----------------------- ------------------- ------------------
Site Work
----------------------------- ----------------------- ------------------- ------------------
Landscape (allowance) 1,000
----------------------------- ----------------------- ------------------- ------------------
Parking 20,250
----------------------------- ----------------------- ------------------- ------------------
Outside lighting (allowance) 1,000
----------------------------- ----------------------- ------------------- ------------------
Awning Tenant
----------------------------- ----------------------- ------------------- ------------------
Subtotal 22,250
----------------------------- ----------------------- ------------------- ------------------
----------------------------- ----------------------- ------------------- ------------------
A/C Heat Pump systems (est) 150,000
----------------------------- ----------------------- ------------------- ------------------
----------------------------- ----------------------- ------------------- ------------------
Contingency (7%) 33,624
----------------------------- ----------------------- ------------------- ------------------
----------------------------- ----------------------- ------------------- ------------------
Total: 563,963
----------------------------- ----------------------- ------------------- ------------------
Xxxxxx X. Black June 19, 0000
Xxxxxxx Xxxx - Xxxx 10-1
EXHIBIT G
ARTICLE 15. MAINTENANCE
Tenant shall pay proportionate share of taxes and CAM, with the exception that
Tenant shall be responsible for replacing light bulbs within its demised
premises. Tenant's proportionate share shall be 1.875%. The same percentage will
apply to taxes, which represents the proportionate share of the Tenant's Demised
Premises to the total area of the facility.
Xxxxxx X. Black June 19, 0000
Xxxxxxx Xxxx - Xxxx 10-1
FIRST AMENDMENT TO LEASE AGREEMENT
XXXXXXX PARK ASSOCIATES
000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
and
XXXXXX INTERACTIVE, INC.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
For the purposes of modifying the Lease Agreement dated July 1, 1998, with
respect to space located at 00 Xxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000, the
parties thereto hereby agree to the following:
1. BINDING EFFECT: IT IS NOTED AND AGREED THAT XXXXXX INTERACTIVE, INC. IS
THE LEGAL SUCCESSOR TO XXXXXX X. BLACK CORPORATION AND XXXXXX BLACK
INTERNATIONAL, LTD. AND AS SUCH INHERITS ALL RIGHTS AND DUTIES PREVIOUSLY
INCUMBENT UPON XXXXXX X. BLACK CORPORATION AND XXXXXX BLACK INTERNATIONAL,
LTD. THIS FIRST AMENDMENT TO THE LEASE AGREEMENT AND THE AGREEMENT SHALL
BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO, THEIR
SUCCESSORS AND ASSIGNS.
2. ENTIRE AGREEMENT: THIS FIRST AMENDMENT TO LEASE AGREEMENT, INCLUDING THE
OTHER DOCUMENTS REFERRED TO HEREIN WHICH FORM A PART HEREOF, CONTAINS THE
ENTIRE UNDERSTANDING OF THE PARTIES HERETO WITH RESPECT TO THE SUBJECT
MATTER HEREOF. THIS AGREEMENT SUPERSEDES ALL PRIOR AGREEMENTS AND
UNDERSTANDINGS BETWEEN THE PARTIES WITH RESPECT TO SUCH SUBJECT MATTER.
THIS AGREEMENT MAY NOT BE MODIFIED OR AMENDED EXCEPT BY WRITTEN AGREEMENT
SIGNED BY ALL THE PARTIES HERETO.
3. ADDITIONAL SPACE: Approximately Ten Thousand Six Hundred (10,600) square
feet as shown by Exhibit "H" is added to Tenant's space. The additional
space is immediate and above the original space as shown in Exhibit "A" of
the Lease Agreement
4. COMMENCEMENT DATE: July 1,1999.
5. AMENDMENT TERM: The initial term shall be two (2) years through June 30,
2001.
6. ADDITIONAL MONTHLY RENT: Seven Thousand Sixty-Six dollars and 67/100
($7066.67) due and payable each month from the commencement date through
June 30, 2001.
7. RENEWAL OPTIONS: Tenant shall have renewal options for this additional
space. The renewal options are as follows:
1st option period: July 1, 2001 through October 31, 2003 for
a 1st option term of two (2) years four (4) months.
2nd through 5th: Commencing on November 1, 2003, and option
periods: ending on October 31st of each year, Tenant
shall have four (4) successive renewal options.
The above renewal options are contingent with the Tenant being in possession of
the space described by Exhibit "A" of the Lease Agreement. All of the above
option renewals will be automatically in effect unless the Tenant renders a
minimum of six (6) months notice prior to the then current additional space
expiration of its intent to discontinue use of the space. Additional base
monthly rent for all of the option periods shall be the amount as contained in
paragraph four (4) above.
8. PARKING: Tenant shall have use of up to an additional 100 car parking
spaced in common with others as shown on attached Exhibit "I".
9. TERMS AND CONDITIONS: All other terms and conditions of the Lease
Agreement to remain the same except the pro rata share as contained in
Exhibit "G" shall be increased to 3.4%.
10. LANDLORD WORK: Tenant accepts the additional space on an "as is" basis
except that the landlord will accomplish the following work prior to the
commencement date:
A. Rework finishes in common ingress hallway and stairwell to the
additional space TO THE SATISFACTION OF TENANT.
B. Rework finishes in common hall to common rest rooms and replace
ceiling tile in men's rest room TO THE SATISFACTION OF TENANT.
C. Remove existing cafeteria serving line and trade passthroughs in
north demising wall.
11. TENANT WORK: Tenant, at Tenant's sole expense, shall award to Xxxxxxx X.
Xxxx & Associates, Inc., General Contractor, and XXXXX Heating & Air
Conditioning, Inc., Mechanical Contractor, contracts for work as shown by
Spectrum Design drawings dated XXXXX XX, XXXX. All required permits,
permit fees and permit requirements to be Tenant's responsibility. The
above contractors and any other direct subcontractors to provide insurance
certificates to Tenant and Landlord showing minimum liability coverage of
Two Million Dollars ($2,000,000) and Worker's Compensation coverage.
Landlord may from time to time during construction phase make work related
rules, if necessary, as to project impact on other Tenants. All utility
separations for the space will be under direction of the Landlord and will
be scheduled as a priority for completion. At expiration of term, Landlord
will accept the space back in the then improved condition.
12. ADDITIONAL OPTION PERIOD: If Tenant is still in possession of this
additional space through all its option renewals and desires to continue
an additional option period as contained in ARTICLE 43 of the Lease
Agreement, then the rents as contained in Exhibit "D" shall be changed to
Two Hundred Fifty-Eight Thousand Two Hundred Dollars ($258,200) annually,
payable Twenty-One Thousand Five Hundred Sixteen Dollars and 67/100
($21,516.67) monthly, fully net.
SECOND AMENDMENT TO LEASE AGREEMENT
XXXXXXX PARK ASSOCIATES
000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
and
XXXXXX INTERACTIVE, INC.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
For the purposes of modifying the Lease Agreement dated July 1, 1998, and lst
Amendment to Lease dated XXXX XX, XXXX with respect to space located at 00
Xxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000, the parties thereto hereby agree to the
following:
1. BINDING EFFECT: IT IS NOTED AND AGREED THAT XXXXXX INTERACTIVE, INC. IS
THE LEGAL SUCCESSOR TO XXXXXX X. BLACK CORPORATION AND XXXXXX BLACK
INTERNATIONAL. LTD. AND AS SUCH INHERITS ALL RIGHTS AND DUTIES PREVIOUSLY
INCUMBENT UPON XXXXXX X. BLACK CORPORATION AND XXXXXX BLACK INTERNATIONAL.
LTD. THIS SECOND AMENDMENT TO THE LEASE AGREEMENT AND THE AGREEMENT SHALL
BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO, THEIR
SUCCESSORS AND ASSIGNS.
2. ENTIRE AGREEMENT: THIS SECOND AMENDMENT TO LEASE AGREEMENT. INCLUDING THE
OTHER DOCUMENTS REFERRED TO HEREIN WHICH FORM A PART HEREOF, CONTAINS THE
ENTIRE UNDERSTANDING OF THE PARTIES HERETO WITH RESPECT TO THE SUBJECT
MATTER HEREOF THIS AGREEMENT SUPERSEDES ALL PRIOR AGREEMENTS AND
UNDERSTANDINGS BETWEEN THE PARTIES WITH RESPECT TO SUCH SUBJECT MATTER.
THIS AGREEMENT MAY NOT BE MODIFIED OR AMENDED EXCEPT BY WRITTEN AGREEMENT
SIGNED BY ALL THE PARTIES HERETO.
3. ADDITIONAL SPACE:
A. Approximately Five Thousand Two Hundred (5,220) square feet as shown
by Exhibit "J" is added to Tenant's space. The additional space is
immediate and above the original space as shown in Exhibit "A" of
the lease agreement and north of the space as shown in Exhibit "H"
of the lst Amendment to Lease.
B. APPROXIMATELY SEVEN THOUSAND (7,000) SQUARE FEET AS SHOWN BY EXHIBIT
"L" IS ADDED TO THE TENANT'S SPACE. THE ADDITIONAL SPACE IS
IMMEDIATELY SOUTH OF AND IS ON THE SAME LEVEL AS SHOWN IN EXHIBIT
"A" OF THE LEASE AGREEMENT.
4. COMMENCEMENT DATE: August 1, 1999
5. AMENDMENT TERM: The initial term shall be twenty-three (23) months through
June 30, 2001.
6. ADDITIONAL MONTHLY RENT: Three Thousand Four Hundred and Eighty dollars
($3480.00) due and payable each month from the commencement date through
June 30, 2001.
7. RENEWAL OPTIONS: Tenant shall have renewal options for this additional
space. The renewal options are as follows:
1st option period: July 1, 2001 through October 31, 2003
for a 1st option term of two (2) years four
(4) months.
2nd through 5th Commencing with November 1, 2003,
option periods: and ending on October 31st of each
year, Tenant shall have four (4)
successive renewal options.
The above renewal options will automatically become effective if tenant
exercises it's renewal option(s) as contained in the 1st Amendment to Lease.
Additional base monthly rent for all of the option periods shall be the amount
as contained in paragraph four (4) above.
8. PARKING: Tenant shall have use of up to an additional 50 car parking
spaces in common with others as shown on attached Exhibit "K".
9. TERMS AND CONDITIONS: All other terms and conditions of the Lease
Agreement and 1st Amendment to THE Lease AGREEMENT to remain the same
except the pro rata share as contained in Exhibit "G" shall be increased
to 4.05%.
10. LANDLORD WORK: Tenant accepts the additional space on an "as is" basis
except that the landlord will provide for a TWENTY-FIVE Thousand Dollar
($25,000) contribution towards Tenant's make-ready BUILDOUT,
11. Landlord hereby agrees to do any and all construction, facility changes or
any other type of alteration to the leased space and the common areas
required for ingress and egress thereto required for accessibility to the
leased space designated in this Amendment that is required for full and
complete compliance with the Americans with Disability Act signed into law
on July 26, 1990 and any and all current amendments thereto.
12. TENANT WORK: Tenant, at Tenant's sole expense, shall award to Xxxxxxx X.
Xxxx & Associates, Inc., General Contractor, and XXXXX Heating & Air
Conditioning, Inc., Mechanical Contractor, OR OTHER SUBSTITUTE OR
ADDITIONAL CONTRACTORS AT TENANT'S SOLE DISCRETION, contracts for work as
shown by Spectrum Design drawings dated XXXXX XX, XXXX. All required
permits, permit fees and permit requirements to be Tenant's
responsibility. The above contractors and any other direct subcontractors
to provide insurance certificates to Tenant and Landlord showing minimum
liability coverage of Two Million Dollars ($2,000,000) and Worker's
Compensation coverage. Landlord may from time to time during construction
phase make work related rules, if necessary, as to project impact on other
Tenants. All utility separations for the space will be under direction of
the Landlord and will be scheduled as a priority for completion. At
expiration of term, Landlord will accept the space back in the then
improved condition.
13. ADDITIONAL OPTION PERIOD: If Tenant is still in possession of this
additional space through all its option renewals and desires to continue
an additional option period as contained in ARTICLE 43 of the Lease
Agreement, then the rents as contained in Exhibit "D" shall be changed to
Three Hundred Four Thousand, One Hundred Dollars ($304,100) annually,
payable Twenty-Five Thousand Three Hundred Forty One Dollars and 67/100
($25,341.67) monthly, fully net.
