This Lease, dated the 5th day of December 1997 Between GABELLI FUNDS, INC., a
New York corporation,
Hereinafter referred to as the Landlord, and
XXXXX CORPORATION, an Indiana corporation,
Hereinafter referred to as the Tenant,
WITNESSETH: That the Landlord hereby demises and leases unto the Tenant, and the
Tenant hereby hires and takes from the Landlord for the term and upon the
rentals hereinafter specified, the premises described as follows, situated in
the City of Rye, County of Westchester and State of New York
The space in a building located at 401 Xxxxxxxx Xxxxx Avenue identified by the
cross-hatching on Exhibit A attached hereto and made a part hereof (the
"Premises")
The term of this demise shall be as provided in Article 30.
The rent for the demised term shall be as provided in Article 31.
The said rent is to be payable monthly in advance on the first day
of each calendar month for the term hereof, in installments as follows: provided
in Article 31
At the office of Landlord
Or as may be otherwise directed by the Landlord in writing.
THE ABOVE LETTING IS UPON THE FOLLOWING CONDITIONS:
First.--The Landlord covenants that the Tenant, on paying the said
rental and performing the covenants and conditions in this Lease contained,
shall and may peaceably and quietly have, hold and enjoy the demised premises
for the term aforesaid.
Second.--The Tenant covenants and agrees to use the demised premises
as
Provided in Article 33
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And agrees not to use or permit the premises to be used for any other purpose
without the prior written consent of the Landlord endorsed hereon.
Third.--The Tenant shall, and without any previous demand therefor,
pay to the Landlord, or its agent, the said rent at the times and in the manner
above provided. In the event of the non-payment of said rent, or any installment
thereof, at the times and in the manner above provided, and if the same shall
remain in default for ten days after becoming due, or if the Tenant shall be
dispossessed for non-payment of rent, or if the leased premises shall be
deserted or vacated, the Landlord or its agents shall have the right to and may
enter the said premises as the agent of the Tenant, either by force or
otherwise, without being liable for any prosecution or damages therefor, and may
relet the premises as the agent of the Tenant, and receive the rent therefor,
upon such terms as shall be satisfactory to the Landlord, and all rights of the
Tenant to repossess the premises under this lease shall be forfeited. Such
re-entry by the Landlord shall not operate to release the Tenant from any rent
to be paid or covenants to be performed hereunder during the full term of this
lease. For the purpose of reletting, the Landlord shall be authorize3d to make
such repairs or alterations in or to the leased premises as may be necessary to
place the same in good order and condition. The Tenant shall be liable to the
Landlord for the cost of such repairs or alterations, and all expenses of such
reletting. If the sum realized or to be realized from the reletting is
insufficient to satisfy the monthly or term rent provided in this lease, the
Landlord, at its option, may require the Tenant to pay such deficiency month by
month, or may hold the Tenant in advance for the entire deficiency to be
realized during the term of the reletting. The Tenant shall not be entitled to
any surplus accruing as a result of the reletting. The Landlord is hereby
granted a lien, in addition to any statutory lien or right to distrain that may
exist, on all personal property of the Tenant in or upon the demised premises,
to secure payment of the rent and performance of the covenants and conditions of
this lease. The Landlord shall have the right, as agent of the Tenant, to take
possession of any furniture, fixtures or other personal property of the Tenant
found in or about the premises, and sell the same at public or private sale and
to apply the proceeds thereof to the payment of any monies becoming due under
this lease, the Tenant hereby waiving the benefit of all laws exempting property
from execution, levy and sale on distress or judgment. The Tenant agrees to pay,
as additional rent, all attorney's fees and other expenses incurred by the
Landlord in enforcing any of the obligations under this lease.
Fourth.--The Tenant shall not sub-let the demised premises nor any
portion thereof, nor shall this lease be assigned by the Tenant without the
prior written consent of the Landlord endorsed hereon.
Fifth.--The Tenant has examined the demised premises, and accepts
them in their present condition (except as otherwise expressly provided herein)
and without any representations on the part of the Landlord or its agents as to
the present or future condition of the said premises. The Tenant shall keep the
demised pr3emises in good condition, and shall redecorate, paint and renovate
the said premises as may be necessary to keep them in repair and good
appearance. The Tenant shall quit and
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surrender the premises at the end of the demised term in as good condition as
the reasonable use thereof will permit. The Tenant shall not make any
alterations, additions, or improvements to said premises without the prior
written consent of the Landlord. All erections, alterations, additions and
improvements, whether temporary or permanent in character, which may be made
upon the premises either by the Landlord or the Tenant, except furniture or
movable trade fixtures installed at the expense of the Tenant, shall be the
property of the Landlord and shall remain upon and be surrendered with the
premises as a part thereof at the termination of this Lease, without
compensation to the Tenant. The Tenant further agrees to keep said premises and
all parts thereof in a clean and sanitary condition and free from trash,
inflammable material and other objectionable matter.
Sixth.--In the event that any mechanics' lien is filed against the
premises as a result of alterations, additions or improvements made by the
Tenant, the Landlord, at its option, after thirty days' notice to the Tenant,
may terminate this lease and may pay the said lien, without inquiring into the
validity thereof, and the Tenant shall forthwith reimburse the Landlord the
total expense incurred by the Landlord in discharging the said lien, as
additional rent hereunder.
Seventh.--The Tenant agrees to replace at the Tenant's expense any
and all glass which may become broken in and on the demised premises. Plate
glass and mirrors, if any, shall be insured by the Tenant at their full
insurable value in a company satisfactory to the Landlord. Said policy shall be
of the full premium type, and shall be deposited with the Landlord or its agent.
Eighth.--The Landlord shall not be responsible for the loss of or
damage to property, or injury to persons, occurring in or about the demised
premises, by reason of any existing or future condition, defect, matter or thing
in said demised premises or the property of which the premises are a part, or
for the acts, omissions or negligence of other persons or tenants in and about
the said property. The Tenant agrees to indemnify and save the Landlord harmless
from all claims and liability for losses of or damage to property, or injuries
to persons occurring in or about the demised premises.
Ninth.--Utilities and services furnished to the demised premises for
the benefit of the Tenant shall be provided and paid for as
provided in Articles 41 and 42.
The Landlord shall not be liable for any interruption or delay in any of the
above services for any reason.
Tenth.--The Landlord, or its agents, shall have the right to enter
the demised premises at reasonable hours in the day or night to examine the
same, or to run telephone or other wires, or to make such repairs, additions or
alterations as it shall deem necessary for the safety, preservation or
restoration of the improvements, or for the safety or convenience of the
occupants or users thereof (there being no obligation, however, on the part of
the Landlord to make any such repairs, additions or alterations), or to exhibit
the same to
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prospective purchasers and put upon the premises a suitable "For Sale" sign. For
three months prior to the expiration of the demised term, the Landlord, or its
agents, may similarly exhibit the premises to prospective tenants, and may place
the usual "To Let" signs thereon.
Eleventh.--In the event of the destruction of the demised premises
or the building containing the said premises by fire, explosion, the elements or
otherwise during the term hereby created, or previous thereto, or such partial
destruction thereof as to render the premises wholly untenantable or unfit for
occupancy, or should the demised premises be so badly injured that the same
cannot be repaired within ninety days from the happening of such injury, then
and in such case the term hereby created shall, at the option of the Landlord,
cease and become null and void from the date of such damage or destruction, and
the Tenant shall immediately surrender said premises and all the Tenant's
interest therein to the Landlord, and shall pay rent only to the time of such
surrender, in which event the Landlord may re-enter and re-possess the premises
thus discharged from this lease and may remove all parties therefrom. Should the
demised premises be rendered untenantable and unfit for occupancy, but yet be
repairable within ninety days from the happening of said injury, the Landlord
may enter and repair the same with reasonable speed, and the rent shall not
accrue after said injury or while repairs are being made, but shall recommence
immediately after said repairs shall be completed. But if the premises shall be
so slightly injured as not to be rendered untenantable and unfit for occupancy,
then the Landlord agrees to repair the same with reasonable promptness and in
that case the rent accrued and accruing shall not cease or determine. The Tenant
shall immediately notify the Landlord in case of fire or other damage to the
premises.
Twelfth.--The Tenant agrees to observe and comply with all laws,
ordinances, rules and regulations of the Federal, State, County and Municipal
authorities applicable to the business to be conducted by the Tenant in the
demised premises. The Tenant agrees not to do or permit anything to be done in
said premises or keep anything therein, which will increase the rate of fire
insurance premiums on the improvements or any part thereof, or on property kept
therein, or which will obstruct or interfere with the rights of other tenants,
or conflict with the regulations of the Fire Department or with any insurance
policy upon said improvements or any part thereof. In the event of any increase
in insurance premiums resulting from the Tenant's occupancy of the premises, or
from any act or omission on the part of the Tenant, the Tenant agrees to pay
said increase in insurance premiums on the improvements or contents thereof as
additional rent.
Thirteenth.--No sign, advertisement or notice shall be affixed to or
placed upon any part of the demised premises by the Tenant, except in such
manner, and of such size, design and color as shall be approved in advance in
writing by the Landlord.
Fourteenth.--This lease is subject and is hereby subordinated to all
present and future mortgages, deeds of trust and other encumbrances affecting
the demised premises or the property of which said premises are a part. The
Tenant agrees to execute, at no expense to the Landlord, any instrument which
may be deemed necessary or desirable by
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the Landlord to further effect the subordination of this lease to any such
mortgage, deed of trust or encumbrance.
Fifteenth.--In the event of the sale by the Landlord of the demised
premises, or the property of which said premises are a part, the Landlord or the
purchaser may terminate this lease on the thirtieth day of April in any year
upon giving the Tenant notice of such termination prior to the first day of
January in the same year.
Sixteenth.--The rules and regulations regarding the demised
premises, affixed to this lease, if any, as well as any other and further
reasonable rules and regulations which shall be made by the Landlord, shall be
observed by the Tenant and by the Tenant's employees, agents and customers. The
Landlord reserves the right to rescind any presently existing rules applicable
to the demised premises, and to make such other and further reasonable rules and
regulations as, in its judgment, may from time to time be desirable for the
safety, care and cleanliness of the premises, and for the preservation of good
order therein, which rules, when so made and notice thereof given to the Tenant,
shall have the same force and effect as if originally made a part of this lease.
Such other and further rules shall not, however, be inconsistent with the proper
and rightful enjoyment by the Tenant of the demised premises.
Seventeenth.--In case of violation by the Tenant of any of the
covenants, agreements and conditions of this lease, or of the rules and
regulations now or hereafter to be reasonably established by the Landlord, and
upon failure to discontinue such violation within ten days after notice thereof
given to the Tenant, this lease shall thenceforth, at the option of the
Landlord, become null and void, and the Landlord may re-enter without further
notice or demand. The rent in such case shall become due, be apportioned and
paid on and up to the day of such re-entry, and the Tenant shall be liable for
all loss or damage resulting from such violation as aforesaid. No waiver by the
Landlord of any violation or breach of condition by the Tenant shall constitute
or be construed as a waiver of any other violation or breach of condition, nor
shall lapse of time after breach of condition by the Tenant before the Landlord
shall exercise its option under this paragraph operate to defeat the right of
the Landlord to declare this lease null and void and to re-enter upon the
demised premises after the said breach or violation.
Eighteenth.--All notices and demands, legal or otherwise, incidental
to this lease, or the occupation of the demised premises, shall be in writing.
If the Landlord or its agent desires to give or serve upon the Tenant any notice
or demand, it shall be sufficient to send a copy thereof by registered mail,
addressed to the Tenant at the demised premises, or to leave a copy thereof with
a person of suitable age found on the premises, or to post a copy thereof upon
the door to said premises. Notices from the Tenant to the Landlord shall be sent
by registered mail or delivered to the Landlord at the place hereinbefore
designated for the payment of rent, or to such party or place as the Landlord
may from time to time designate in writing.
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Nineteenth.--It is further agreed that if at any time during the
term of this lease the Tenant shall make any assignment for the benefit of
creditors, or be decreed insolvent or bankrupt according to law, or if a
receiver shall be appointed for the Tenant, then the Landlord may, at its
option, terminate this lease, exercise of such option to be evidenced by notice
to that effect served upon the assignee, receiver, trustee or other person in
charge of the liquidation of the property of the Tenant or the Tenant's estate,
but such termination shall not release or discharge any payment of rent payable
hereunder and then accrued, or any liability then accrued by reason of any
agreement or covenant herein contained on the part of the Tenant, or the
Tenant's legal representatives.
Twentieth.--In the event that the Tenant shall remain in the demised
premises after the expiration of the term of this lease without having executed
a new written lease with the Landlord, such holding over shall not constitute a
renewal or extension of this lease. The Landlord may, at its option, elect to
treat the Tenant as one who has not removed at the end of his term, and
thereupon be entitled to all the remedies against the Tenant provided by law in
that situation, or the Landlord may elect, at its option, to construe such
holding over as a tenancy from month to month, subject to all the terms and
conditions of this lease, except as to duration thereof, and in that event the
Tenant shall pay monthly rent in advance at the rate provided herein as
effective during the last month of the demised term.
Twenty-first.--If the property or any part thereof wherein the
demised premises are located shall be taken by public or quasi-public authority
under any power of eminent domain or condemnation, this lease, at the option of
the Landlord, shall forthwith terminate and the Tenant shall have no claim or
interest in or to any award of damages for such taking.
Twenty-second.--The Tenant has this day deposited with the Landlord
the sum of $7,567.50 as security for the full and faithful performance by the
Tenant of all the terms, covenants and conditions of this lease upon the
Tenant's part to be performed, which said sum shall be returned to the Tenant
after the time fixed as the expiration of the term herein, provided the Tenant
has fully and faithfully carried out all of said terms, covenants and conditions
on Tenant's part to be performed. In the event of a bona fide sale, subject to
this lease, the Landlord shall have the right to transfer the security to the
vendee for the benefit of the Tenant and the Landlord shall be considered
released by the Tenant from all liability for the return of such security; and
the Tenant agrees to look to the new Landlord solely for the return of the said
security, and it is agreed that this shall apply to every transfer or assignment
made of the security to a new Landlord. The security deposited under this lease
shall not be mortgaged, assigned or encumbered by the Tenant without the written
consent of the Landlord.
Twenty-third.--Any dispute arising under this lease shall be settled
by arbitration. Then Landlord and Tenant shall each choose an arbitrator, and
the two arbitrators thus chosen shall select a third arbitrator. The findings
and award of the three arbitrators thus chosen shall be final and binding on the
parties hereto.
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Twenty-fourth.--No rights are to be conferred upon the Tenant until
this lease has been signed by the Landlord, and an executed copy of the lease
has been delivered to the Tenant.
Twenty-fifth.--The foregoing rights and remedies are not intended to
be exclusive but as additional to all rights and remedies the Landlord would
otherwise have by law.
Twenty-sixth.--All of the terms, covenants and conditions of this
lease shall inure to the benefit of and be binding upon the respective heirs,
executors, administrators, successors and assigns of the parties hereto.
However, in the event of the death of the Tenant, if an individual, the Landlord
may, at its option, terminate this lease by notifying the executor or
administrator of the Tenant at the demised premises.
Twenty-seventh.--This lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in nowise be affected, impaired or excused
because Landlord is unable to supply or is delayed in supplying any service
expressly or impliedly to be supplied or is unable to make, or is delayed in
making any repairs, additions, alterations or decorations or is unable to supply
or is delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from so doing by reason of governmental preemption in connection with
the National Emergency declared by the President of the United States or in
connection with any rule, order or regulation of any department or subdivision
thereof of any governmental agency or by reason of the conditions of supply and
demand which have been or are affected by the war.
Twenty-eighth.--This instrument may not be changed orally
RIDER ANNEXED TO AND MADE PART OF LEASE DATED DECEMBER 5, 1997
BETWEEN GABELLI FUNDS, INC., LANDLORD,
AND XXXXX CORPORATION, TENANT
The provisions of this Rider shall supersede any inconsistent provisions
contained elsewhere in this Lease.
29. USE OF COMMON AREAS.
The use and occupation by Tenant of the Common Areas of the Premises includes
the license to use, in common with others, the common areas of the building at
401 Xxxxxxxx Xxxxx Avenue, Rye, New York (the "Building"). Common areas include
employees' and customer parking areas, service roads, loading facilities, truck
service ways, service corridors and entries, sidewalks, malls, courts, grass
areas and other areas designated from time to time by Landlord for the common
use of tenants in the Building ("Common Areas"), subject to the terms and
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conditions of this Lease and rules and regulations as Landlord may adopt.
30. TERM.
The term of this Lease shall commence on December 5, 1997 (the "Commencement
Date") and terminate at 12:00 midnight five (5) years thereafter (the
"Termination Date"), unless earlier terminated or extended as provided
hereunder.
31. RENT.
During the Term of this Lease, Tenant agrees to pay to Landlord each month as
rent, without prior notice or demand as provided below, the sum of Seven
Thousand Five Hundred Sixty-Seven and 50/100 Dollars ($7,567.50) ("Monthly
Rent"). Monthly Rent shown above shall be paid by Tenant in advance, in the
amount shown above, on or before the first calendar day of each month during the
Term hereof. Monthly Rent for any period during the Term hereof which is for
less than one (1) month shall be a pro-rated portion of the Monthly Rent, based
upon a thirty (30) day month. Monthly Rent shall be paid by Tenant to Landlord,
without any abatement, deduction or offset in lawful money of the United States
of American which shall be legal tender at the time of payment and shall be paid
at Landlord's office at One Corporate Center, Rye, New York or to such other
person or at such other place as Landlord may from time to time designate in
writing.
No Rent shall be due until the date that is six (6) months after the
Commencement Date.
32. ADDITIONAL RENT.
In addition to Monthly Rent, Tenant shall pay as further additional rent
("Additional Rent") a proportion of the expenses incurred by Landlord for HVAC,
utilities (with the exception of electricity), janitorial expenses, Common Areas
maintenance, taxes, insurance, administrative fees and other operational
expenses related to the Premises, Building and Common Areas (collectively,
"Operating Expenses") which exceed the Operating Expenses in the "Base Year"
(the "Operating Expense Increase"). Operating Expenses shall exclude the
following: (i) depreciation and amortization of the building or any
improvements, equipment, or other property location on the land; (ii) franchise
or income taxes imposed upon Landlord and estate or inheritance taxes and any
penalties or late charges; (iii) debt service on mortgages affecting the
Building or the land or charges associated with such debts; (iv) leasing
commissions; (v) capital improvements; (vi) salaries of personnel above the
grade of property manager and such property manager's supervisor; (vii) any
expense for which Landlord is otherwise compensated through the proceeds of
insurance or is otherwise compensated by any tenant (including Tenant) of the
Building for services in excess of the services Landlord is obligated to furnish
to Tenant hereunder; and (viii) legal fees incurred in connection with any
negotiation of any space lease in the Building. The "Base Year" shall mean the
calendar year commencing January 1, 1998. "Taxes" shall mean all real estate
taxes, sewer rates and charges, assessed, levied or
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imposed upon the Building and all assessments (other than those specified in
this Section), transit taxes or other Governmental charges, general, specific,
ordinary or extraordinary, foreseen or unforeseen, assessed, levied or imposed
upon the Building. Tenant's proportion of the Operating Expense Increase shall
be 8.89%.
Landlord may at its option, at any time or from time to time, submit to Tenant,
Landlord's estimate of the Operating Expense Increase which will become due and
payable pursuant to this Section during any Lease Year. A lease year shall be
each calendar year during the term ("Lease Year"). Tenant shall pay such
estimated operating Expense Increase monthly with each Monthly Rent payment.
Within 120 days after the expiration of each Lease Year, Landlord shall furnish
Tenant a statement setting forth the aggregate amount of the Operating Expenses
for such Lease Year (the "Operating Statement"). If the actual Operating Expense
Increase is more than the amount estimated by Landlord, Landlord shall xxxx
Tenant for the difference between the actual amount and the estimated amount.
Payments by either party to reconcile the amounts shall be made within thirty
(30) days after receipt of the Operating Statement from Landlord.
33. USE.
Tenant shall use the Premises for general office purposes and shall not use or
permit the Premises to be used for any other purposes without the prior written
consent of Landlord. Tenant shall not do or permit anything to be done in or
about the Premises nor bring to keep anything therein which will in any way
increase the existing rate of or affect any fire or other insurance upon the
Building or any of its contents, or cause cancellation of any insurance policy
covering said Building or any part thereof or any of its contents. Tenant shall
not do or permit anything to be done in or about the Premises which will in any
way obstruct or interfere with the rights of other tenants or occupants of the
Building or injure or annoy them or use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises. Tenant shall not
commit or suffer to be committed any waste in or upon the Building, Premises or
Common Areas.
34. COMPLIANCE WITH LAW.
Tenant shall not use the Premises or permit anything to be done in or about the
Premises which will in any way conflict with any law, statute, ordinance or
governmental rule or regulation now in force or which may hereafter be enacted
or promulgated. Tenant shall, at its sole cost and expense, promptly comply with
all laws, statutes, ordinances and governmental rules, regulations or
requirements now in force or which may hereinafter be in force, and with the
requirements of any board of fire insurance underwriters or other similar bodies
now or hereafter constituted, relating to, or affecting the condition, use or
occupancy of the Premises. Without limiting the foregoing, Tenant shall comply
with all requirements of the Americans with Disabilities Act of 1990 (the "ADA")
and any subsequent related legislation as such relates to the Premises.
Notwithstanding the foregoing, Tenant shall not be required to make any
improvements to the Premises in order to bring the
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Premises into compliance with any law, statute, ordinance or governmental rule
or regulation, except to the extend that any non-compliance was caused directly
or indirectly by Tenant.
Tenant further represents and warrants that it shall not transport, use, store,
maintain, generate, manufacture, handle, dispose, release, or discharge any
"Hazardous Material" upon or about the Building, Common Areas and Premises, nor
permit Tenant's employees, agents, representatives, contractors, or invitees to
engage in such activities. The term "Hazardous Material" for purposes of this
Lease shall mean any chemical, substance, material, pollutant, contaminant or
waste or component thereof which is now or hereafter listed, defined, or
regulated as a hazardous or toxic chemical, substance, material, pollutant,
contaminant or waste or component thereof by any federal, state, or local
governing or regulatory body having jurisdiction, or which would trigger any
employee or community "right-to-know" requirements adopted by any such body, or
for which any such body has adopted any requirements for the preparation or
distribution of any material safety data sheet.
The foregoing provisions shall not, however, prohibit the transportation to and
from, and use, storage, maintenance, and handling within, the Premises of
substances customarily used in offices (or in such other business or activity
expressly permitted to be undertaken in the Premises under the terms and
conditions of this Lease) which are Hazardous Materials, provided: (I) such
substances shall be used and maintained only in such quantities as are
reasonably necessary for such permitted use of the Premises, strictly in
accordance with applicable law and the manufacturers' instructions therefor;
(ii) such substances shall not be disposed of, released, or discharged in the
Building or its surrounding areas and shall be transported to and from the
Premises in compliance with all applicable laws and as Landlord shall reasonably
require; (iii) if any applicable law requires that any such substances be
disposed of separately from ordinary trash, Tenant shall make arrangements at
Tenant's expense for such disposal directly with a qualified and licensed
disposal company at a lawful disposal site and shall ensure that disposal occurs
frequently to prevent unnecessary storage of such substances in the Premises;
and (iv) any remaining such substances shall be completely, properly and
lawfully removed from the Building and Premises upon expiration or earlier
termination of this Lease.
If any Hazardous Material is released, discharged, or disposed of by Tenant or
their employees, agents representatives, contractors, or invitees on or about
the Building, Common Areas or Premises in violation of the foregoing provisions,
Tenant shall immediately, properly, and in compliance with applicable laws clean
up and remove the Hazardous Material from the affected areas and clean or
replace any affected personal property (whether or not owned by Landlord), at
Tenant's expense. Such clean up and removal work shall be subject to Landlord's
prior written approval (except in emergencies) and shall include, without
limitation, any testing, investigation, and the preparation and implementation
of any remedial action plan required by any governmental body having
jurisdiction or reasonably required by Landlord. If Tenant shall fail to comply
with the provisions of this Section within five (5)
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days after written notice by Landlord, or such shorter time as may be required
by law or in order to minimize any hazard to persons or property, Landlord may
(but shall not be obligated to) arrange for such compliance directly or as
Tenant's agent through contractors or other parties selected by Landlord, at
Tenant's expense (without limiting Landlord's other remedies under this Lease or
applicable law).
Tenant shall promptly notify Landlord of any enforcement, clean up, or other
regulatory action taken or threatened by any governmental or regulatory
authority with respect to the presence of any Hazardous Material on the Premises
or the migration thereof from or to other property and any release, discharge,
or nonroutine, improper, or unlawful disposal or transportation of any Hazardous
Material on or from the Premises. Tenant shall indemnify and hold harmless
Landlord (its officers, directors, employees and representatives) from and
against any loss, costs, damages, liability or expenses (including attorneys'
fees and disbursements) arising by reason of any clean up, removal, remediation,
detoxification action or any other activity required of any of such indemnified
parties by any government authority as a result of the presence in or about the
Building or the Premises of any Hazardous Materials caused by or resulting from
any act or omission of Tenant occurring after the date hereof. The foregoing
covenants and indemnity shall survive the expiration of any termination of this
lease.
35. TENANT IMPROVEMENTS.
All Tenant improvements shall be made by Tenant, at Tenant's cost, in a good and
workmanlike manner with contractors and plans and specifications approved in
advance in writing by Landlord. Tenant shall assume complete responsibility for
the acts or omissions of Tenant's contractors and Tenant shall indemnify
Landlord or any other tenant from damage, liability or costs incurred resulting
from the acts or omissions of Tenant's contractors.
36. ALTERATIONS AND ADDITIONS.
Except as otherwise provided in this Lease, Tenant shall not make or suffer to
be made any alterations, additions or improvements to or of the Premises or any
part thereof without the prior written consent of Landlord, including, but not
limited to, wall covering, paneling and built-in cabinet work, excepting movable
furniture and trade fixtures, which shall on the expiration of the Term become a
part of the realty and belong to the Landlord and shall be surrendered with the
Premises, unless Landlord requires that such alterations, additions or
improvements should be removed, in which case Tenant shall, at Tenant's cost,
diligently remove with alterations, additions or improvements and restore
Premises to same condition as at the commencement of the Lease. Landlord agrees
that it will not unreasonably withhold its consent to any non-structural
alterations that Tenant wishes to make to the Premises, provided such
alterations are completed in compliance with all applicable laws, codes and
regulations and the materials used are of a quality equal to or better than
building standard for the Building and do not materially adversely affect the
building systems. Any request for Landlord's consent to alterations, additions
or improvements shall be in writing and shall include complete plans and
specifications detailing the contemplated work. In the event Landlord consents
to the making of any alterations, additions or improvements to the Premises by
Tenant, the same shall be made by Tenant at Tenant's sole cost and expense, and
any contractor or person selected by Tenant to make the same must first be
approved of in writing by the Landlord. All such alterations shall be made in
accordance with all applicable laws, rules, regulations, and ordinances. Prior
to Tenant's occupancy of the Premises, Tenant shall deliver to Landlord a
Certificate of Occupancy for the Premises, provided, that such Certificate of
Occupancy may be a temporary Certificate of Occupancy.
37. LIENS.
Tenant shall keep the Premises and the Building free from any liens arising out
of any improvements made, services performed, materials furnished or obligations
incurred by Tenant. Landlord may require, at Landlord's sole option, that Tenant
shall provide the Landlord, at Tenant's sole cost and expense a lien and
completion bond in an amount equal to one and one-half (1.5) times any and all
estimated cost of any improvements, additions, or alterations in the Premises,
to insure Landlord against any liability for mechanics' and materialmens' liens
and to insure completion of the work. If any lien is placed upon the Premises,
the Building or the Common Areas resulting from the work commissioned by Tenant,
Tenant shall immediately pay and discharge such lien.
38. MAINTENANCE AND REPAIRS.
By taking possession of the Premises, Tenant shall be deemed to have accepted
the Premises as being in good condition and repair. Landlord shall repair and
maintain the structural portions of the Building, including the basic plumbing,
air conditioning, heating and electrical systems, installed or furnished by
Landlord, unless such maintenance and repairs are caused in part or in whole by
the act, neglect, fault or omission of any duty by the Tenant, its agents,
servants, employees or invitees, in which case Tenant shall pay to Landlord the
reasonable cost of such maintenance and repairs. Further, the repair and
maintenance of any auxiliary or supplementary heating, venting or
air-conditioning units or equipment, plumbing fixtures, serving only the
Premises shall be the Tenant's responsibility. Landlord shall not be liable for
any failure to make any such repairs or to perform any maintenance agreed to
herein unless such failure shall persist for an unreasonable time after written
notice of the need of such repairs or maintenance is given to Landlord by
Tenant. There shall be no abatement of Rent and no liability of Landlord by
reason of any injury to or interference with Tenant's business arising from the
making of any repairs, alterations or improvements in or to any portion of the
Building, the Premises, or the Common Areas or in or to fixtures, appurtenances
and equipment therein.
Except as specifically provided in this Lease, Landlord shall have no obligation
whatsoever to alter, remodel, improve, repair, decorate or paint the Premises or
any part thereof and the parties hereto affirm that Landlord has made no
representations to Tenant respecting the condition of the Building, the Premises
or the Common Areas except as specifically herein set forth.
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Except as provided herein, Tenant shall repair and maintain the interior and
interior surfaces of the Premises (including the walls, ceilings, floor
coverings, and windows and doors adjoining, or used exclusively in connection
with, the Premises) in good, clean condition, ordinary wear and tear and damage
caused by Landlord excepted. Tenant shall upon the expiration or sooner
termination of this Lease hereof surrender the Premises to the Landlord in good
condition, ordinary wear and tear excepted.
39. INDEMNIFICATION; HOLD HARMLESS.
Tenant shall indemnify and hold Landlord (its officers, directors, employees and
representatives) harmless from and against any and all liability or costs
resulting from Tenant's (its employees', agents', representatives', contractors'
or invitees') negligence or intentional wrongful acts; the conduct of Tenant's
business; the performance or breach of Tenant's obligations under this Lease;
any infringement upon the rights of third parties; and/or the use or occupancy
of the Building, the Premises or the Common Areas. Tenant shall promptly notify
Landlord, in writing, of any complaints, claims, demands or legal proceedings
against it relating to the Building, Premises or Common Areas that could invoke
this indemnification. Landlord reserves the right to retain counsel of its
choice, at Tenant's expense, to defend against any such claims or actions. This
indemnification and hold harmless shall survive the termination of this Lease.
40. INSURANCE; SUBROGATION.
Tenant shall maintain, at Tenant's cost, the following insurance coverage during
the Term of this Lease which policy or policies shall name the Landlord, the
owner of the Building and its managing agent as additional insureds:
a) Commercial General Liability (Including property damage
liability)
Limit: One million dollars ($1,000,000) per occurrence
Two million dollars ($2,000,000) aggregate
b) Personal Property (Covering owned assets)
Limit: Replacement Cost with eighty percent (80%)
coinsurance
c) Any other insurance required by law.
Landlord or the owner of the Building shall maintain the following insurance
coverage during the Term of this Lease:
a) Fire and Extended Coverage on the Building and its fixtures,
including but not limited to the Premises and its improvements
- All Risks Broad Basis
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Limit: Replacement Cost with ninety percent (90%)
coinsurance
b) Boiler and Machinery - All Risks Covering All Eligible Machinery
Limit: Replacement Cost with ninety percent (90%)
coinsurance
c) Commercial General Liability (Including property damage and
fire legal liability covering Landlord and any party managing
the Building or Premises for Landlord)
Limit: One million dollars ($1,000,000) per occurrence
Two million dollars ($2,000,000) aggregate
d) Any other insurance required by law.
Such insurance shall be placed with carriers licensed to do business in the
State of New York. Each party shall provide the other party with a current
certificate of insurance evidencing such insurance. Each party hereby waives any
claims which it may have against the other party to this Lease for losses to its
property sustained by it and caused by or attributable to, or allegedly caused
by or attributable to the other party to the extend that the loss is paid by
such insurance. Each party shall obtain any special endorsements, if required by
its insurer, necessary to evidence compliance with the aforementioned waiver.
41. SERVICES AND UTILITIES.
Provided that Tenant is not in default hereunder, Tenant shall have access to
and Landlord agrees to furnish to the Premises or where applicable the Building
and Common Areas subject to the rules and regulations of the Building and during
normal business hours, as defined below, all utilities, hot and cold water,
heating, cooling, temperature control, air movement, ventilation and filtration;
security services and life safety devices in compliance with applicable city,
state or federal codes for the Building itself, not the Premises; landscaping,
snow and ice removal; elevator service; rest room supplies; light bulbs; vermin
control; and janitorial services required in Landlord's reasonable judgment for
the comfortable use and occupation of the Premises. All such services shall be
suitable and comparable to services provided to comparable local buildings. Upon
Tenant's request, Landlord shall provide essential services at time other than
Tenant's normal business hours, provided, however, that Tenant shall pay for
such additional services. Landlord shall also maintain and keep lighted the
common stairs, common entries and rest rooms in the Building. Landlord shall not
be liable for, and Tenant shall not be entitles to, any reduction of Rent by
reason of Landlord's failure to furnish any of the foregoing. Landlord shall not
be liable under any circumstances for a loss of or injury to property, however
occurring, through or in connection with or incidental to failure to furnish any
of the foregoing. Wherever heat generation machines or equipment other than
normal office equipment are used in the Premises which affect the temperature
otherwise maintained by the air conditioning system, Landlord reserves the right
to install
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supplementary air conditioning units in the Premises and the cost thereof,
including, the cost of installation, and the cost of operation and maintenance
thereof shall be paid by Tenant to Landlord upon demand by Landlord.
Tenant's normal business hours shall be Monday through Friday 8:00 a.m. to 6:00
p.m.
42. ELECTRICITY.
A. Subject to the provisions of this Article, Landlord shall cause to
be furnished to Tenant the electric energy that Tenant shall require
in the Premises. Such electric energy shall be furnished to Tenant
through the existing electric energy system for Tenant's reasonable
use in connection with its use of the Premises for general office
purposes. Such lighting electric fixtures, appliances and equipment
other than those normally provided for in the use of the Premises
for general office purposes may be installed by Tenant in the
Premises as Landlord shall permit, which permission shall not be
unreasonably withheld or delayed. Landlord shall not be liable in
any way to Tenant for any failure or defect in the supply or
character of electric energy furnished to the Premises by reason of
any requirement, act or omission of the public utility supplying the
Center with electric energy or for any other reason not attributable
to Landlord.
B. Prior to the installation of a submeter with respect to the
Premises, Tenant's consumption of electric energy shall be measured
by calculating the Tenant's proportionate share (based on useable
square feet) of all charges (including fuel adjustment factor,
surcharges, meter reading charges) for electricity furnished to the
Building, including taxes on the same. Upon installation of a
submeter with respect to the Premises, Tenant's consumption of
electric energy shall be measured by submeter, to be installed by
Landlord at Tenant's sole cost and expense. Tenant shall pay for the
cost of repairs and maintenance to the submeter. When more than one
meter measures the service of Tenant, the service rendered through
each meter shall be computed and billed conjunctively as if one
meter measured Tenant's usage in accordance with this paragraph.
Tenant shall purchase electric energy measured in accordance with
the foregoing provisions from Landlord and shall, within five (5)
days after demand (accompanied by Landlord's computation of the
amount then due), pay to Landlord monthly when billed all charges
for Tenant's consumption of electric energy, plus an amount for
Landlord's administrative costs equaling 5% of the monthly
electricity charge. In no event, however, shall Tenant's monthly
electricity charges be less than $830.41. Tenant shall comply with
the rules, regulations, terms and conditions, if any, applicable to
service, equipment, wiring, and changes in requirements in
accordance with the requirements of the public utility supplying
electric energy to the Building in the same manner as if Tenant was
serviced directly by such utility. If any tax (other than tax based
on income) is imposed upon Landlord's receipt from the sale or
resale of electric service to Tenant by any federal, state, or
municipal authority,
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Tenant agrees that, where permitted by law, Tenant's proportionate
share of such taxes shall be passed on to, and included in the xxxx
of, and paid by, Tenant.
C. In addition to paying for Tenant's entire supply of electric
current, Tenant agrees to pay, as additional rent, Tenant's
proportionate share of the cost of all charges (including fuel
adjustment factor, surcharges, meter reading charges) for
electricity furnished to the Common Areas, including the taxes on
the same.
D. In no event shall Tenant's monthly electricity charges under
Paragraphs B and C above be less than $1,051.04.
43. PERSONAL PROPERTY TAXES
Tenant shall pay, or cause to be paid, before delinquency, any and all taxes
levied or assessed and which become payable during the term hereof upon all
Tenant's equipment, furniture, fixtures and personal property located in the
Premises, except that which has been paid for by Landlord and is the standard of
the Building. In the event any or all of the Tenant's equipment, furniture,
fixtures and personal property shall be assessed and taxed with the Building,
Tenant shall pay to Landlord its share of such taxes within ten (10) days after
delivery to Tenant by Landlord of a statement in writing setting forth the
amount of such taxes applicable to Tenant's property.
44. RULES AND REGULATIONS.
Tenant shall faithfully observe and comply with all of the rules and regulations
("Rules") that Landlord shall from time to time promulgate. A copy of such Rules
which is current as of the execution of this Lease is attached as Exhibit B,
which is specifically incorporated herein. Landlord reserves the right from time
to time to make additions, modifications and or deletions ("Changes") to said
Rules. The Changes to the Rules shall be binding upon Tenant upon delivery of a
copy of such Changes to Tenant. Landlord does not guarantee compliance by others
or uniform application of the Rules and Landlord shall not be responsible to
Tenant for the failure of such compliance or uniform application. If there is
any inconsistency between the Rules, the Changes and this Lease, this Lease
shall control.
45. ENTRY BY LANDLORD.
Landlord reserves and shall at any and all times have the right to enter the
Premises, inspect the same, supply janitorial service and any other service to
be provided by Landlord to Tenant hereunder, to show said Premises to
prospective purchasers or Tenants, to post notices, and to alter, improve or
repair the Premises and any portion of the Building that Landlord may deem
necessary or desirable, without abatement of Rent and may for that purpose erect
scaffolding and other necessary structures where reasonably required by the
character of the work to be performed, always providing that the entrance(s) to
the Premises shall not be blocked thereby; and further providing that the
business of the
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Tenant shall not be interfered with unreasonably. Tenant hereby waives any claim
for damages or for any injury or inconvenience to or interference with Tenant's
business, and any loss of occupancy or quiet enjoyment of the Premises, and any
other loss occasioned thereby. For each of the aforesaid purposes, Landlord
shall at all times have and retain a key with which to unlock all of the doors
in, upon and about the Premises, excluding Tenant's vaults, safes and files, and
Landlord shall have the right to use any and all means which Landlord may deem
proper to open said doors in any emergency, in order to obtain entry to the
Premises without liability to Tenant except for any failure to exercise due care
for Tenant's property. Any entry to the Premises obtained by Landlord by and of
said means, or otherwise shall not under any circumstances be construed or
deemed to be a forcible or unlawful entry into, or a detainer of, the Premises,
or an eviction of Tenant from the Premises or any portion thereof.
46. CASUALTY LOSS; RECONSTRUCTION.
In the event the Premises or the Building is damaged as a result of any cause
other than the perils covered by fire and extended coverage insurance, then
Landlord shall forthwith repair the same, provided the extent of the destruction
is less than ten percent (10%) of the then full replacement cost of the Premises
or the Building, as the case may be. In the event the destruction of the
Premises or the Building is to an extent greater than ten percent (10%) of the
full replacement cost, then Landlord shall have the option: (1) to repair or
restore such damage, this Lease continuing in full force and effect, but the
Rent to be proportionately reduced; or (2) to give notice to Tenant at any time
within sixty (60) days after such damage terminating this Lease as of the date
specified in such notice, which date shall be no less than thirty (30) days
after such notice. In the event of giving such notice, this Lease shall expire
and all interest of the Tenant in the Premises shall terminate on the date so
specified in such notice and the Rent, reduced by a proportionate amount, based
upon the extent, if any, to which such damage materially interfered with the
business carried on by the Tenant in the Premises, shall be paid up to date of
said termination.
Landlord shall not be liable for any damage to property entrusted to Landlord,
nor for loss or damage to any property by theft or otherwise, nor for any injury
to or damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, water or rain which may leak from any part of
the Building or from the pipes, appliances or plumbing works therein or from the
roof, street or sub-surface or from any other place resulting from dampness or
any other cause whatsoever, unless solely caused by the negligence or
intentional wrongful acts of Landlord. Landlord shall not be liable for
interference with the light or other incorporeal hereditaments, loss of business
by Tenant, nor shall Landlord be liable for any latent defect in the Premises or
in the Building. Tenant shall give prompt notice to Landlord in case of fire or
accidents in the Premises or in the Building or of defects therein or in the
fixtures or equipment.
Landlord shall not be required to repair any injury or damage by fire or any
cause, or to make any repairs or replacements, of any panels,
17
decoration, office fixtures, railings, floor covering, partitions, or any other
property installed in the Premises by Tenant. The Tenant shall not be entitled
to any compensation or damages from Landlord for loss of the use of the whole or
any part of the Premises, Tenant's personal property or any inconvenience or
annoyance occasioned by such damage, repair, reconstruction or restoration.
47. DEFAULT.
The occurrence of any one or more of the following events shall constitute a
default and breach of this Lease by Tenant ("Event of Default"):
A. The vacating, abandonment or failure by Tenant to use the Premises
for the intended use as specified in this Lease;
B. The failure by Tenant to make any payment of Rent or any other
payment required to be made by Tenant hereunder, as and when due,
where such failure shall continue for a period of ten (10) days
after written notice thereof by Landlord to Tenant;
C. The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed
by Tenant, including, without limitation, Section 51 hereof, where
such failure shall continue for a period of thirty (30) days after
written notice thereof by Landlord to Tenant; provided, however,
that if both parties agree that the nature of the default is such
that more than thirty (30) days are reasonably required for its
cure, then Tenant shall not be deemed to be in default if Tenant
commences such cure within the thirty (30) day period and thereafter
diligently prosecutes such cure to completion; or
D. The making by Tenant of any general assignment or general
arrangement for the benefit of its creditors; or the filing by or
against Tenant of a petition to have Tenant adjudged as bankrupt, or
a petition for reorganization or arrangement under any law relating
to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within thirty (30) days); or the
appointment of a trustee or a receiver to take possession of
substantially all of Tenant's assets or of Tenant's interest in this
Lease, where possession is not restores to Tenant within thirty (30)
days; or the attachment, execution or other judicial seizure of
substantially all of Tenant's assets or of Tenant's interest in this
Lease, where such seizure is not discharged within thirty (30) days.
48. REMEDIES UPON DEFAULT.
Upon the occurrence of any Event of Default by Tenant, Landlord may, at its sole
discretion and at any time thereafter with three (3) days prior
18
written notice and without limiting Landlord in the exercise of any right or
remedy which Landlord may have by reason of such default:
A. Terminate Tenant's right to possession of the Premises by any lawful
means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In
such event Landlord shall be entitled to recover from Tenant all
damages incurred by Landlord by reason of Tenant's default including
but not limited to Rent for the Term of the Lease; the cost of
recovering possession of the Premises; expenses of reletting,
including necessary renovation and alteration of the Premises; the
unamortized cost of Tenant Improvements, reasonable attorneys' fees;
and any real estate commission actually paid. Upon recovery of the
Premises, Landlord may at its sole discretion, use its best efforts
to relet the Premises at a comparable or market rent thereby
mitigating damages hereunder.
B. Pursue any other remedy now or hereafter available to Landlord under
federal or state (in which the Premises are located) statutory or
common law; and/or
C. Accelerate all Monthly Rent due for the balance of the Term of this
Lease and declare the same to be immediately due and payable upon
default by Tenant.
49. FORCE MAJEURE.
In the event that either party is unable to perform any of its obligations under
this Lease (other than the obligation to pay money) because a force majeure
event (also known as an "Act of God"), the party who has been so affected shall
immediately give notice to the other party and shall do everything possible to
meet the obligations under this Lease or resume performance. If the period of
non-performance exceeds thirty (30) days from receipt of such notice, the party
whose ability to perform has not been so affected may by giving written notice,
terminate this Lease.
50. EMINENT DOMAIN.
If all or substantially all of the Building, the Common Areas or the Premises
are temporarily or permanently taken by power of eminent domain or condemnation,
Landlord shall notify Tenant and this Lease shall terminate at the option of
Landlord or Tenant as of the date of such taking. If part of the Building, the
Common Areas or the Premises is taken, Landlord shall have the option to
terminate this Lease or make such repairs necessary to restore the Building, the
Common Areas or the Premises as nearly as possible to its original condition,
during which period Rent shall xxxxx proportionately.
51. ESTOPPEL CERTIFICATE.
As requested by Landlord, Tenant shall, within ten (10) days of Landlord's
request, execute and deliver to Landlord a written statement certifying:
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A. The date the Term of this Lease commences or terminates;
B. The fact that this Lease is unmodified and in full force and effect
(or, if there have been modifications hereto, that this Lease is in
full force and effect and stating the date and nature of such
modifications);
C. The date to which the Rent under this Lease has been paid; and
D. That there are no current defaults under this Lease by either
Landlord or Tenant except as specified in Tenant's statement.
Any such statement may be relied upon by any prospective purchaser or
encumbrancer of all or any portion of the real property of which the Premises
are a part.
52. TENANT'S REMEDIES.
Tenant specifically agrees to look solely to Landord's (or Landlord's
successor's) interest in the Building for the recovery of any judgment from
Landlord, it being agreed that Landlord (and if Landlord is a partnership, its
general or limited partners, or if Landlord is a corporation, its directors,
officers or any successors in interest) shall never be personally liable for any
such judgment. As such, Tenant expressly waives any and all rights to proceed
against any such partners, directors, officers or successors in interest.
53. QUIET POSSESSION.
Upon Tenant paying the Rent hereunder and observing and performing all of the
covenants, conditions and provisions on Tenant's part to be observed and
performed hereunder, Tenant shall have quiet possession of the Premises for the
entire Term hereof, subject to all the provisions of this Lease.
54. LATE CHARGES
Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent or
other sums due hereunder will cause Landlord to incur costs not contemplated by
this Lease, the exact amount of which will be extremely difficult to ascertain.
Such costs include, but are not limited to, processing and accounting charges,
and late charges which may be imposed upon Landlord by the terms of any mortgage
or trust xxxx covering the Premises. Accordingly if any installment of Rent or
of a sum due from Tenant shall not be received by Landlord or Landlord's
designee within five (5) days after said amount is past due, then Tenant shall
pay to Landlord a late charge equal to ten percent (10%) of such overdue amount.
The parties hereby agree that such late charges represent a fair and reasonable
estimate of the cost that Landlord will incur by reason of the late payment by
Tenant. Acceptance of such late charges by the Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount nor
prevent Landlord from exercising any of the other rights and remedies granted
hereunder.
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55. SUBORDINATION, ATTORNMENT.
Upon request of the Landlord, Tenant will, provided that the mortgagee, trustee,
beneficiary or other lender has agreed not to disturb Tenant's possession as
long as Tenant is not in default, in writing subordinate its rights hereunder to
the lien of any mortgage or mortgages or deed or deeds of trust to any lender or
the lien resulting from any other method of financing or refinancing now or
hereafter in force against the land and/or Building of which the Premises are a
part, and upon any buildings hereafter placed upon the land of which the
Premises are a part, and to all advances made or hereafter to be made upon the
security thereof.
In the event any proceedings are brought for foreclosure, or in the event of the
exercise of the power of sale under any mortgage or deed of trust made by the
Landlord covering the Premises, the Tenant shall attorn to the purchaser upon
any such foreclosure or sale and recognize such purchaser as the Landlord under
this Lease.
56. SIGNS.
Tenant may be permitted to place any signs, at Tenant's expense, on the Premises
after obtaining the prior written consent of Landlord. Tenant may erect and
maintain only such signs as Landlord has or may approve. Tenant shall submit to
Landlord detailed drawings of proposed sign(s) for review and approval by
Landlord prior to erecting or installing sign(s). Tenant shall keep any sign(s)
insured and shall maintain sign(s) in good condition, repair and operating order
at all times. All signs of Tenant and all signs utilized by Tenant shall be
professionally lettered, in good taste, and shall conform to the standards of
design, notif, and decor from time to time as established by Landlord for the
Building.
57. RIGHT TO RELOCATE TENANT.
Landlord shall have the right, at its sole option, upon not less than thirty
(30) days prior written notice to Tenant, to relocate Tenant to substitute space
("Substitute Space") within the Building. Such Substitute Space shall contain at
least as much rentable and contiguous area and constitute reasonably comparable
space as the Premises. If tenant is already in possession of the Premises,
Landlord shall reimburse Tenant for all reasonable moving and relocation
expenses ("Moving Expenses") that are customarily incurred in such a relocation.
These Moving Expenses typically include charges for moving equipment and
supplies, telephone lines and new stationery. Tenant shall maintain receipts of
all such Moving Expenses in such form and detail as Landlord shall direct. All
the terms and conditions of this Lease shall remain in full force and effect and
the Substitute Space shall be considered to be the Premises.
The exercise by Landlord of this right to relocate Tenant shall not be deemed to
be a breach of the Lease, nor an actual or constructive eviction nor a
disturbance of Tenant's right to quiet possession. Tenant specifically
acknowledges this right of Landlord and understands that it might be exercised
during the Term of Tenant's Lease. Should Tenant refuse to relocate as directed
by Landlord, then Landlord shall
21
have the right to cancel and terminate this lease effective sixty (60) days from
the original notification by the Landlord.
58. BROKERS.
Tenant warrants that it has had no dealings with any real estate brokers or
agents in connection with the negotiation of this Lease and it knows of no real
estate broker or agent who is entitled to a commission in connection with this
Lease. Tenant will indemnify and hold Landlord harmless from and against any
other claims, suite or demands for such brokers' fees or charges.
59. DRAFTING; INTERPRETATION.
Should any provision of this Lease require judicial interpretation, Landlord and
Tenant hereby agree and stipulate that the court interpreting or considering
this Lease shall not apply the presumption that the terms of this Lease shall be
more strictly construed against a party by reason of any rule or conclusion that
a document should be construed more strictly against the party who itself or
through its agents prepared the document. The parties acknowledge that all
parties hereto have participated in the preparation of this Lease either through
drafting or review and that each party has had full opportunity to consult legal
counsel of its choice before the execution of this Lease.
60. CHOICE OF LAW.
This Lease shall be governed by the laws of the State of New York.
61. NOTICES.
All notices and demands which may or are to be required or permitted to be given
by either party to the other hereunder shall be in writing. All notices and
demands by the Landlord to the Tenant shall be sent by certified mail, return
receipt requested, overnight courier or facsimile transmission (provided a hard
copy is mailed on the date of transmission) addressed to the parties at the
following addresses:
To Landlord: Gabelli Funds,
Xxx Xxxxxxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Tenant: Xxxxx Corporation
Eight Sound Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Notices shall be deemed given on the day received by facsimile transmission, on
the first business day after delivery to an express courier, or on the third day
after mailing.
62. COUNTERPARTS.
This Lease may be executed in multiple counterparts, each of which shall
constitute an original instrument, but all of which shall constitute one and the
same agreement.
63. ENTIRE AGREEMENT; MODIFICATION
This Lease contains all of the agreements of the parties hereto with respect to
any matter covered or mentioned in this Lease, and no prior agreements or
understanding pertaining to any such matters shall be effective for any purpose.
No provision of this Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective successors in interest.
64. SEVERABILITY.
Any provision of this Lease which shall prove to be invalid, void or illegal
shall in no way affect, impair or invalidate any other provision hereof and such
other provision shall remain in full force and effect.
65. MARGINAL HEADINGS.
The marginal headings and other titles of this Lease and not a substantive part
of this Lease and shall have no effect upon the construction or interpretation
of any part hereof.
66. PLANNING COMMISSION RESOLUTION #18-84.
Attached hereto as Exhibit C is a copy of Planning Commission Resolution #18-84,
dated September 11, 1984, as supplemented by Planning Commission Resolution
18-90, dated June 26, 1990 (collectively, the "Resolution"), the terms and
conditions of which are incorporated herein by this reference. Tenant shall
comply with all of the terms and conditions of the Resolution, and failure to do
so shall constitute an Event of Default hereunder. The total number of usable
square feet in the Premises is 3986, and the total number of persons that may be
employed and usually present in the Premises at any time under this Lease shall
not exceed 22 persons. Landlord agrees that 15 parking spaces on the property on
which the Building is located shall be made available to Tenant for employee and
guest parking.
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