Exhibit 10.6.1
AGREEMENT OF LEASE
DATED APRIL 12, 1991
BY AND BETWEEN
CORPORATE XXXXX ASSOCIATES
LANDLORD
AND
XXXXXX X. BLACK CORPORATION
TENANT
TABLE OF CONTENTS
Section 1 Commencement of Term..............................................1
Section 2 Use...............................................................2
Section 3 Rent..............................................................3
Section 4 Leasehold Improvements............................................6
Section 5 Services..........................................................8
Section 6 Waiver of Certain Claims.........................................11
Section 7 Insurance........................................................12
Section 8 Holding Over.....................................................13
Section 9 Assignment and Subletting........................................13
Section 10 Condition of Premises............................................16
Section 11 Use of Premises..................................................17
Section 12 Repairs..........................................................20
Section l3 Destruction Of Premises..........................................21
Section 14 Condemnation.....................................................22
Section 15 Certain Rights Reserved to Landlord..............................23
Section 16 Landlord's Remedies..............................................24
Section 17 Late Charge......................................................26
Section l8 Subordination of Lease...........................................26
Section 19 Notices and Consent..............................................27
Xxxxxxx 00 Xx Xxxxxx in Land................................................28
Section 21 Invalidity of Particular Provisions..............................28
Section 22 Waiver of Trial by Jury..........................................28
Section 23 Miscellaneous Taxes..............................................28
Section 24 Brokerage........................................................29
Section 25 Force Majeure....................................................29
Section 26 Parking..........................................................29
Section 27 Repetitive Defaults..............................................29
Section 28 Directory and Signage............................................30
Section 29 Entrance and Exit to Property....................................30
Section 30 Special Stipulations.............................................30
Section 31 Quiet Enjoyment..................................................31
Section 32 Estoppel Certificate by Tenant...................................31
Section 33 Rent Deposit.....................................................32
Section 34 Substitute Premises..............................................32
Section 35 Financial Statemetns.............................................32
Section 36 Extension of Term................................................32
Section 37 Use of Conference Facility.......................................33
Section 38 Right of First Offer.............................................33
Section 39 Moving Allowance.................................................34
Section 40 Exhibits.........................................................39
EXHIBITS
A Legal Description of Premises, Floor Plans and Site Plan...................36
B Building Standard Work.....................................................44
C Cleaning Schedule..........................................................49
D Right of First Offer Floor Plan............................................51
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AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE, dated April 12, 1991 is entered into by and
between CORPORATE XXXXX ASSOCIATES, a partnership organized under the laws of
the State of New York having its principal place of business at 000 Xxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 (the "Landlord"), and XXXXXX X.
BLACK CORPORATION, a New York corporation with an office at 0000 Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx (the "Tenant").
WITNESSETH:
Landlord hereby leases unto Tenant and Tenant hereby accepts from
Landlord, that certain space consisting of approximately 26,080 square feet (the
"Total Usable Area") located on a portion of the first and all of the second
floors (the "Premises") of the building (the "Building") Suites 150 and 200,
known as Building 135 of Corporate Xxxxx of Brighton, Town of Brighton, County
of Monroe, State of New York, with the right to use the subdivided lot (the
"Lot") on which the Building is located and the right to use the driveways,
parking areas, and all other land to be used in common by all tenants (such
driveways, parking areas and other lands collectively referred to as the
"Corporate Xxxxx Common Areas"), as more particularly described on the legal
description and also more particularly shown on the Floor Plans and Site Plan,
attached as Exhibit A hereto for the term, the rent, and subject to the
conditions and covenants hereinafter provided. The Building, and the Lot, and
all other improvements thereon will sometimes be collectively referred to herein
as the "Property". The definition of Total Usable Area shall be adjusted, in the
event that Tenant exercises its right to lease RFO Premises, as provided in
Section 38 hereof, to include the total usable area of the RFO Premises. In
addition, the definition of Premises shall also be adjusted, in such event, to
include the RFO Premises.
1. COMMENCEMENT OF TERM
(a) DATE OF COMMENCEMENT. The term of this Lease shall
commence on that date (the "Commencement Date") which is the later of August 15,
1991 or the date on which Landlord has substantially completed with respect to
the Premises all leasehold improvements (as defined in Section 4 herein)
including any Building Standard Work listed on Exhibit B attached hereto,
subject only to punchlist items and non--building standard work, if any, to be
performed by Tenant. The term as so commenced shall end at midnight on February
28, 1997. The leasehold improvements, the Building Standard Work and
non--building standard work to be performed by Landlord, if any, and
improvements to be performed by Tenant, if any, will be collectively referred to
herein as the "Work." Notwithstanding the foregoing, Landlord and Tenant agree
that if Tenant takes possession of the Premises prior to Landlord's substantial
completion of the leasehold improvements, for any purpose other than preparing
the Premises for occupancy by Tenant, then the term of this
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Lease shall commence on the date Tenant takes such possession of the Premises.
(b) PLANS AND SPECIFICATIONS. Tenant, at its expense, shall
submit to Landlord, for Landlord's review and approval, working architectural,
engineering, electrical and mechanical drawings (the "Plans") and a list or
lists of specifications ("Specifications"), if not set forth on such Plans, for
the Work to be performed at the Premises by May 1, 1991. Tenant reserves the
right, subject to review and approval by Landlord, to supplement, modify or
change such Plans and Specifications provided, however, that Tenant shall be
solely responsible for any delays or additional costs caused in the substantial
completion of the Premises as a result of any such supplementation, modification
or change. Landlord shall have a reasonable time within which to perform its
review and approve or disapprove any Plans or Specifications, or supplement,
modification or change thereof or thereto. Any such approval or disapproval
shall be in writing and in the event of a disapproval the reasons therefor shall
be stated in writing. Landlord, further agrees not to unreasonably withhold or
delay any such approval or disapproval.
(c) TENANT DELAYS. If a delay shall occur in the substantial
completion of the Premises by Landlord as the result of (i) Tenant's failure to
furnish when due the Plans and Specifications for the Work or any additional
information requested in connection therewith, (ii) any supplementation,
modification or change by Tenant in any air conditioning requirement, Plan,
Specification or finish information furnished by Tenant, (iii) any change order
by Tenant other than as described in (ii) above, (iv) the completion of any part
of the Work by a person, firm or corporation employed by Tenant, (v)
installation of Tenant's telephone, word processing, computer and/or other
communications systems, (vi) any direction by Tenant that Landlord hold up
proceeding for any reason, then for each day, or part thereof, of such delay the
Commencement Date of this Lease and Tenant's obligation to pay Rent (as
hereinafter defined) shall be accelerated by one day and become one day earlier
than provided for in this Lease. If any delay will result from those acts set
forth in subsections (ii) through (vi) above, Landlord agrees to give Tenant
written notice as to such delay.
(d) FORCE MAJEURE DELAYS. Both Landlord's and Tenant's
obligations to substantially complete the Premises are expressly qualified by
the provision in this Lease on "Force Majeure" contained in Section 25 hereof,
and each day of delay caused by an event of Force Majeure shall, at Landlord's
election, result in a day's postponement of each date and time limit set forth
in this paragraph.
2. USE
The Premises shall be occupied and used by Tenant for any
lawful use permitted by the Town of Brighton and for any lawful use indigenous
to a corporate market research firm including but not limited to sales, service,
research and related uses.
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3. RENT
(a) BASE RENT. Tenant shall pay to Landlord as base or fixed
rent (the "Base Rent"), in U.S. legal tender, at Landlord's offices at 000
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000, or as otherwise directed
from time to time by Landlord's written notice, the annual sum of THREE HUNDRED
NINETY-ONE THOUSAND TWO HUNDRED AND 00/100 DOLLARS ($391,200.00), such Base Rent
to be paid in equal monthly payments of THIRTY TWO THOUSAND SIX HUNDRED AND
00/100 DOLLARS ($32,600.00) each promptly on the first day of every calendar
month of the term of this Lease and any extension period hereof (except as
modified by Section 3(i) herein), if this Lease is extended, and pro rata, in
advance, for any partial month, without demand, the same being hereby waived,
and without any set--off or deduction whatsoever. A late penalty will be due and
owing at the rate prescribed in Section 17 of this Lease upon any Base Rent and
Additional Rent (below defined) not paid by the fifth (5th) business day of the
calendar month in which due. The definition of Base Rent shall be adjusted in
the event that Tenant exercises its right to lease RFO Premises as provided in
Section 38 hereof to include the current per square foot Base Rent, as adjusted,
which Tenant is paying to Landlord on the Premises on the date of such exercise,
multiplied by the Total Usable Area of the new Premises (including the RFO
Premises).
(b) ANNUAL INCREASE IN BASE RENT. The base rent beginning on
the first day of the second "Lease Year" (below defined) and continuing on the
first day of each Lease Year thereafter (the "Adjustment Date") shall be subject
to an annual increase of three percent (3%) above the Base Rent for the previous
year and such annual increase shall be added to, and become part of, the Base
Rent for the Lease Year commencing on such Adjustment Date and for each Lease
Year thereafter. As used herein, the term "Lease Year" shall mean each
consecutive twelve month period during the term of this Lease so that the first
Lease Year shall begin on the first day of the first month following the
Commencement Date of this Lease (unless the Commencement Date falls on the first
day of the month in which case, the Commencement Date shall be the measuring
date for each Lease Year), the second Lease Year shall begin on the first
anniversary date of such first day of the first month following the Commencement
Date (or the Commencement Date, as the case may be) and so on throughout the
term of this Lease.
(c) REAL PROPERTY TAXES. Tenant shall pay to Landlord each
year, as Additional Rent, a sum equal to the amount by which the real estate
taxes and other assessments (collectively the "Real Property Taxes" as below
defined) allocable to and levied against the Premises during such year exceed
the sum of FORTY-ONE THOUSAND SEVEN HUNDRED TWENTY-EIGHT AND 00/100 DOLLARS
($41,728.00). The amount so allocable to and levied against the Premises will be
the sum obtained by multiplying
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Tenant's "Pro Rata Share" (below defined) by the Real Property Taxes levied
against the Building and Lot.
For purposes of this Lease, Real Property Taxes shall be
defined as follows: (i) All real estate taxes, including but not limited to
town, county and school taxes payable (adjusted after protest or litigation, if
any) for any part of the term of this Lease, including any extension period
hereof, but exclusive of penalties on the Property, (ii) any taxes which shall
be levied in lieu of the taxes described in (i) above or which shall be levied
on the gross rentals of the Property but excluding all income taxes of Landlord,
(iii) pure waters charges (part based upon assessment and part upon the water
consumption by other tenants and users in Corporate Xxxxx), sewer district
charges, lighting charges, fire district charges and other charges and any
assessments (special or otherwise) made against the Property which shall be
required to be paid during the calendar year or fiscal year in respect to which
they are being determined, (iv) any water and water pollution charges, (v) and
any other governmental real estate taxes, levies, impositions or charges of a
similar or dissimilar nature, whether general, special ordinary, extraordinary,
foreseen or unforeseen which may be assessed, levied or imposed upon all or any
part of the Property, and (vi) the reasonable expense (with Tenant's share not
to exceed $5,000 per contest), of contesting the amount or validity of any such
taxes, charges or assessments, such expense (including reasonable attorneys
fees) to be applicable to the period of the item contested.
If, after January 1, 1994, the real property tax assessment
for the Building exceeds the amount of such real property tax assessment for the
immediately prior Lease Year by fifteen percent (15%) or more, Tenant shall have
the right to require Landlord to contest the increase in such assessment through
a tax certiorari or other appropriate proceeding. Tenant shall, at the request
of Landlord, join in and cooperate fully with Landlord in any such proceedings.
Landlord and Tenant shall each pay fifty percent of all costs and expenses,
including counsel fees, in connection with such proceedings. In addition, Tenant
shall have the right to approve of the counsel Landlord selects to contest such
real property tax assessment, such approval not to be unreasonably withheld or
delayed. The costs and expenses of any such contest brought pursuant to this
paragraph shall not be considered Real Property Taxes under the preceding
paragraph. Tenant's obligation to pay Real Property Taxes pursuant to Section 3
of this Lease shall continue during any such contest pursuant to this paragraph.
(d) TENANT'S SHARE OF REAL PROPERTY TAXES. For purposes
hereof, Tenant's "Share of Real Property Taxes" shall be that product obtained
by multiplying the amount of the Real Property Taxes against the Building and
Lot by a fraction, the numerator of which shall be the number of square feet of
Total Usable Area of the Premises and the denominator of which shall be the
total number of square feet of Total Usable Area of the Building excluding the
lobby, elevator shafts, mechanical space, boiler room and other areas of the
Building
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constituting space in the Building not specifically leased to and occupied by a
specific tenant. Landlord and Tenant agree that Tenant's pro rata share ("Pro
Rata Share") for these purposes shall be 43.47%. The Pro Rata Share shall be
adjusted in accordance with the above formula in the event that Tenant exercises
its right to lease RFO Premises as provided in Section 38 hereof.
(e) ESTIMATES. In order to provide for current payments of
Real Property Taxes Tenant agrees to pay, as Additional Rent, Tenant's Share of
Real Property Taxes in accordance with a reasonable estimate by Landlord as
prepared from time to time, such estimated amount to be paid in twelve (12)
monthly installments commencing on the first day of the month following the
month in which Landlord notifies Tenant of the amount of Tenant's Share of Real
Property Taxes. If, as finally determined, Tenant's Share of Real Property Taxes
shall be greater than or be less than the aggregate of all estimated
installments thereof paid by Tenant on account to Landlord for such twelve (12)
month period, then Tenant shall pay to Landlord the amount of such underpayment,
or Landlord shall promptly refund to Tenant the amount of such overpayment, as
case may be. The obligation of Tenant with respect to the payment of such Real
Property Taxes accrued during the term of this Lease, or any extension period
hereof if this Lease is extended, shall survive the expiration or earlier
termination of this Lease. Any payment or refund made pursuant to this
Subsection (e) shall be made without prejudice to any right of Tenant to
dispute, or of Landlord to correct, any item(s) as billed pursuant to the
provisions hereof so long as Tenant continues to pay the amount as so estimated
and billed.
Landlord covenants and agrees that Landlord will provide
Tenant within thirty (30) days after written request, with copies of any xxxx
upon which any Real Property Taxes are based together with the calculation used
by Landlord in determining Tenant's Pro Rata Share thereof.
(f) AGREEMENT TO PAY. Tenant does hereby covenant and agree to
pay promptly the amounts computed pursuant to this Section 3 and otherwise
herein as additional rent ("Additional Rent") as and when the same shall become
due and payable, without demand therefor, and without any set-off or deduction
whatsoever.
(g) COSTS AND EXPENSES DEEMED RENT. All costs and expenses
which Tenant assumes or agrees to pay to Landlord pursuant to this Lease shall
be deemed Additional Rent and, in the event of non-payment thereof, Landlord
shall have all the rights and remedies herein provided for in case of
non--payment of Rent (below defined).
(h) RENT. The Base Rent together with the Additional Rent
described in this Section 3 will be collectively referred to herein as Rent.
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(i) WAIVER OF BASE RENT. Except for any portion of the lease
term between the Commencement Date and the beginning of the first Lease Year,
for which Tenant shall pay any Base Rent adjusted on a per diem basis, Landlord
hereby waives monthly installment payments of Base Rent from the start of the
first Lease Year only until the first day of the fifth month after the start of
the first Lease Year, except that for each day of delay of the start of the
first Lease Year caused by Tenant Delays, as defined in Section 1(c) of this
Lease, such waiver period shall be reduced by one day and Tenant's obligation to
pay Rent shall be accelerated by one day. Notwithstanding such waiver, all other
terms and conditions of this Lease shall be in full force and effect as of the
Commencement Date and Tenant shall pay all Additional Rent and other charges
incurred or accrued from the Commencement Date of this Lease. This subparagraph
(i) shall not apply with respect to the RFO Premises in the event that Tenant
exercises its right to lease RFO Premises as provided in Section 38 hereof.
4. LEASEHOLD IMPROVEMENTS
Except as otherwise provided herein, Landlord covenants and
agrees to provide certain leasehold improvements at the Premises for occupancy
by Tenant, at Tenant's expense, in accordance with the Plans and Specifications
and finish schedules (collectively the "Leasehold Improvements"). Landlord
agrees to provide Tenant an allowance ("Landlord's Allowance") for the Leasehold
Improvements (except as otherwise set forth herein) which Landlord's Allowance
shall not exceed $19.00 per square feet of the Premises or $495,520.00. The
quality of all Leasehold Improvements shall equal or exceed the standards set
forth as Building Standard Work on Exhibit B attached hereto ("Building Standard
Work") and such Building Standard Work shall serve as the minimum standards for
such Leasehold Improvements. It is understood, however, that such Building
Standard Work as set forth on Exhibit B is intended to set forth only the
guidelines for minimum quality but that the ratios and square footage
allocations set forth therein are not intended to be binding on Landlord in
providing such Leasehold Improvements. In the event that the cost of the
Leasehold Improvements does not equal the amount of Landlord's Allowance set
forth herein, Tenant shall not be entitled to any credit, offset or deduction
for any such surplus, it being understood that any such amount shall belong to
Landlord. If the total cost of the Leasehold Improvements exceeds Landlord's
Allowance as above stated, Tenant shall, upon receipt of Landlord's notice and
invoice, reimburse Landlord in full for the excess cost differential within
thirty (30) days of receipt thereof.
Landlord's Allowance shall not be used for art work, office
equipment, trade fixtures (including but not limited to audio visual equipment),
telephone systems, interior plant landscape, movable furniture and furniture
partition systems or movable telephone work stations. The foregoing items shall
be installed by Tenant at its cost and expense. Landlord shall install any
telephone work stations set forth in the Plans and Specifications which are
permanently affixed to
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the Building and Landlord's Allowance may be used for such permanent
telephone work stations.
In addition, except as set forth in subparagraph (g) below,
Landlord's Allowance shall not be used for the removal of three corridors
surrounding the atrium on the second floor of the Building (including the
removal of any carpeting, wallpaper and ceiling lights and all ceilings, floors
and walls in these corridors), nor for the removal of a corridor located on the
west side of the second floor of the Building (which west side corridor provides
passage to and from the bathrooms and the west end stair well). The foregoing
corridors and related materials may be removed by Tenant at its cost and
expense.
Landlord shall prepare a Leasehold Improvement analysis,
detailing a cost breakdown for each item outlined on the Plans and
Specifications, including unit pricing, and give Tenant a copy of such analysis.
With respect to carpeting and wallpaper in the Premises, Tenant shall have the
ability to direct Landlord to purchase carpeting and wallpaper, through Tenant's
suppliers, if Tenant satisfactorily demonstrates to Landlord that Landlord's
pricing is not as competitive as that of Tenant's suppliers.
Tenant covenants and agrees that upon expiration of the term
of this Lease, including any extension thereof, Tenant, at the election of
Landlord, will remove all tenant improvements other than those which are part of
the Work, and return the Premises to Landlord in the same condition as of the
Commencement Date, except for reasonable wear and tear and occurrences pursuant
to Sections 13 and 14 hereof. Landlord agrees to exercise such election by
notifying Tenant in writing 90 days prior to the expiration of this Lease, or
any extension terms, if extended.
In addition to Landlord's Allowance, the following items shall
be provided by Landlord at Landlord's expense and NOT charged against Landlord's
Allowance:
(a) DOOR UPGRADES: Landlord agrees to provide Tenant with
mahogany upgrades and brass hardware to 52 doors in the Premises. Accordingly,
Landlord's Allowance will be utilized to pay for 52 of the oak doors (seven feet
high each) with oak frames and usual hardware but Landlord will upgrade those 52
doors to mahogany doors with mahogany frames and brass hardware at no additional
charge for such upgrades to Tenant and Landlord's Allowance will not be used for
such upgrades. Any doors in excess of the 52 described herein furnished to
Tenant shall be charged against Landlord's Allowance at the full cost of such
mahogany doors and frames and brass hardware.
(b) WINDOW XXXXX: Landlord will provide Tenant with mahogany
window xxxxx for all exterior windows of the Premises without charge to Tenant
and without use of Landlord's Allowance for payment of same.
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(c) BLINDS: Standard Levolor (or equivalent) window blinds for
all exterior windows shall be provided at Landlord's expense and without being
charged against Landlord's Allowance.
(d) IN-CONCRETE PLUMBING: Landlord will pay for, without
deduction from Landlord's Allowance, all in-concrete plumbing necessary on the
first floor of the Building (but not on the second floor which shall be at
Tenant's expense) to accomodate a garbage disposal and other plumbing needs for
Tenant's lunchroom to be located on the first floor of the building. Such
in--concrete plumbing, to be paid for by Landlord, shall be limited to one
lunchroom location and shall not include plumbing costs incurred for plumbing
run outside of the concrete which shall be the cost of Tenant.
(e) HVAC HEAT PUMPS: Landlord will pay for, without deduction
from Landlord's Allowance, heat pump units to service the Premises according to
the guidelines set forth as Building Standard Work in Exhibit B hereto. Such
payment by Landlord shall be for the costs of the heat pump units only and any
costs for ductwork, wiring, control devices, difusers and the like shall be the
responsibility of Tenant. In addition, Landlord shall only pay for so--called
"building standard" heat pump units and any non-building standard HVAC units
(including any special equipment required in Tenant's computer room) shall be
the responsibility of Tenant.
(f) REMOVAL OF CORRIDOR: Landlord will pay for, without
deduction from Landlord's Allowance, the removal of a corridor, including any
carpeting, wallpaper and ceiling lights in the corridor, located on the second
floor of the Building, running from the east end stairwell to the atrium
opening.
(g) REMOVAL OF PART OF ATRIUM WALL: Landlord will pay for,
without deduction from Landlord's Allowance, the removal of that separate
portion of the atrium wall, contiguous to the reception area, located on the
second floor of the Building.
Section 4 of the Lease shall not apply with respect to the RFO
Premises in the event that Tenant exercises its right to lease RFO Premises as
provided in Section 38 hereof.
5. SERVICES
Landlord shall provide the following services:
(a) HEAT, VENTILATION AND AIR CONDITIONING. Heat, ventilation
and air-conditioning equipment needed for the comfortable use and occupancy of
the Premises as reasonably determined by Landlord and as specified in paragraph
J of the Building Standard Work Letter attached hereto as Exhibit "B",
throughout the term of this Lease and any extension period hereof, at all times.
With respect to the Corporate Xxxxx Common Areas in the Building, the above
services will be provided
9
from 8:00 a.m. to 6:00 p.m. each Monday through Friday and from 8:00 a.m.
to 1:00 p.m. each Saturday, excluding holidays. Landlord shall pay for
all gas used to provide heat.
(b) ELEVATOR SERVICE. The Passenger and freight elevator shall
be available at all times. If available, an elevator security system will be
installed at Tenant's expense, to limit access to the portion of the Premises
located on the second floor of the Building.
(c) CLEANING. Provided that Tenant shall keep the Premises in
good order, Landlord shall cause the Premises, including those interior hallways
which are located within the Premises, to be cleaned in accordance with the
standards set forth in Exhibit "C" annexed hereto and hereby made a part hereof.
Tenant agrees to reimburse Landlord for the costs incurred by Landlord in so
cleaning the Premises, together with Landlord's administrative costs (not to
exceed five percent (5%) of such cleaning costs) in regard thereto. Such
cleaning costs shall not exceed reasonable costs incurred for similar services
provided to other Class A suburban office parks located in Monroe County. The
cost of such services shall initially be $0.80 per square foot of Total Usable
Area per year (including Landlord's administrative costs) and Tenant shall pay
such costs in equal monthly installments at times for and together with the
payments of Base Rent. The cost to Tenant shall be immediately increased by an
amount equal to any increase in the cost of cleaning services with respect to
the Premises billed to Landlord. Tenant shall also pay to Landlord, within 15
days of billing, the costs incurred by Landlord for any cleaning in or of the
Premises in excess of that specified in Exhibit "C" as well as for any
additional cleaning requested by Tenant. Cleaning services will be provided to
the Premises on a seven-day/week basis provided that extra services beyond those
provided on a five-day/week basis shall be paid for by Tenant.
If Landlord fails to provide the cleaning services set forth
herein, Tenant shall notify the Landlord in writing and provide Landlord with
thirty (30) days to cure such failures. If such failures have not been cured
within such thirty (30) day time period, Tenant shall thereafter have the right
to hire, at Tenant's expense, its own cleaning service(s) and shall not have to
pay Landlord for cleaning of the Premises as set forth herein provided that
before Tenant hires such cleaning service, Tenant must give Landlord another
written notice of such failures and fifteen (15) days to cure such failures.
(d) BUILDING COMMON AREA JANITORIAL SERVICES. Landlord shall
provide janitorial services with respect to the common areas of the Building in
accordance with the standards set forth in Exhibit "C" annexed hereto and made a
part hereof.
(e) WATER. Landlord, at its expense, shall furnish adequate
hot and cold water in public areas for drinking, lavatory and toilet, and
ordinary cleaning purposes.
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(f) ELECTRICAL ENERGY. Landlord shall furnish and Tenant shall
reimburse Landlord for the cost of all electrical energy used by Tenant for
heat, air-conditioning, light and other services, and Landlord's administrative
costs (not to exceed five percent (5%) of the actual kilowatt hour costs) in
regard thereto, such costs estimated (but not guaranteed) to be $1.00 per square
foot of Total Usable Area per year as of the date of this Lease. Tenant shall
reimburse Landlord monthly, at the times for and together with the payments of
Base Rent for the cost of such electrical energy and administrative costs as
estimated. Tenant's use of electrical energy will be separately check--metered
and actual usage will be calculated by Landlord twice a year. Landlord agrees to
refund Tenant for any overpayments made by Tenant and Tenant aqrees to reimburse
Landlord with the next monthly installment of Rent then due for any shortage.
Landlord will install and change light bulbs but the cost of such bulbs shall be
paid by Tenant. Tenant shall have the right to purchase light bulbs at its own
expense provided such light bulbs are compatible with the lighting fixtures and
provided further that Tenant shall pay the labor costs to Landlord for
installation of such light bulbs by Landlord. The labor cost of the installation
of such light bulbs shall not exceed the costs charged to other tenants at
Corporate Xxxxx.
(g) PARKING LOT LIGHTING AND MAINTENANCE. Landlord agrees to
light the parking areas for the building from sunset until midnight each Monday
through Friday or as otherwise agreed to by Landlord and Tenant. In addition,
Landlord agrees to keep the parking areas functionally maintained, reasonably
free of snow and ice, and repaired at the expense of Landlord.
(h) SECURITY. The Building will be secured by a perimeter door
system that incorporates infra-red motion detection, electronic striking system
and weather proof exterior numerical key pad system. The Building doors will be
automatically secured by 6:00 p.m. weekdays and are secured all day during
weekends. The system is made by Radionics, features alpha key pad with tape read
out and is monitored off--site by Westec Security Systems. Tenant will be
provided with a sub-system for the Premises which includes infra--red motion
detectors, keypad at main suite entrance door, fire alarm and smoke alarm.
Additionally, the Building security system will monitor all sprinkler line water
pressure, smoke alarms and rate of rise heat detectors via Westec Security
System control headquarters. Local police and fire forces are integral to the
system operation.
(i) ACCESS TO PREMISES. Tenant shall have access to the
Building and the Premises 24 hours per day, 7 days per week, 52 weeks per year
unless such access is prevented by reasons beyond Landlord's control or by the
Acts of Force Majeure as are described in Section 25 of this Lease.
(j) ADDITIONAL WORK OR SERVICES. Notwithstanding any other
provisions herein, should Tenant require any work or services in addition to
those described in Subsection (a) through (h) of this Section 5, Landlord may
upon reasonable advance request by Tenant furnish such
11
additional service and Tenant agrees to pay Landlord, with the next monthly
installment of Rent, such charges as may be agreed on but in no event less than
Landlord's actual cost plus overhead for the additional services provided.
(k) INTERRUPTIONS IN SERVICE. It is understood that Landlord
does not warrant that any of the services referred to above, or any other
services which Landlord may supply, will be free from interruption. Tenant
acknowledges that any one or more of such services may be suspended by reason of
accident or of repairs, alterations or improvements necessary to be made, or by
strikes or lockouts, or by reason of operation of law, or causes beyond the
reasonable controlof Landlord. No such interruption of service shall be deemed
an eviction or disturbance of Tenant's use and possession of the Premises, or
any part thereof, or render Landlord liable to Tenant for damages by abatement
of Rent or otherwise, direct or consequential, nor shall any such interruption
relieve Tenant from performance by Tenant of its obligations under this Lease.
6. WAIVER OF CERTAIN CLAIMS
Landlord and Tenant agree that, in the event that any part of
the Premises or the whole of the Premises, or the fixtures, merchandise and
contents therein, are damaged or destroyed by fire or other insured casualty,
the rights of either party, or its agents, assignees, subtenants or transferees,
against the other with respect to such liability or responsibility for any
damage, destruction or loss resulting therefrom, including the interruption of
the business of any of the parties and loss suffered as a result of the fault or
negligence of any such parties, are hereby waived. This waiver only applies to
insured casualty losses and is not intended to waive any other rights that
either party may have against the other. Landlord and Tenant agree further that
all policies of fire and extended coverage covering the Premises, business
interruption or other insurance covering the Premises, or the contents, fixtures
and improvements therein shall contain a clause or endorsement providing in
substance that the insurance shall not be prejudiced if the insureds have waived
right of recovery from any person or persons prior to the date and time of loss
or damage, if any. Any additional premium shall be paid by the party benefitted
thereby.
If any property damage results from any act or neglect of
Tenant, Landlord may at Landlord's option, after written notice to Tenant
(except in the case of an emergency where no notice is necessary) repair such
damage and Tenant shall thereupon pay to Landlord so much of the total cost of
such repair or replacement as is not covered or paid to Landlord under
Landlord's insurance policy, including the amount of any deductible, as well as
so much of the total cost of such repair as exceeds any insurance proceeds
Landlord receives in respect of such damage.
Each party agrees to defend and hold the other harmless and
indemnify against each and every claim and liability for injuries to any
12
person or persons and for damage to or loss of personal property occurring in or
about the Property or Corporate Xxxxx Common Areas, due to any act of negligence
or default under this Lease by the indemnifying party or its respective
contractors, agents or employees.
7. INSURANCE
(a) FIRE AND HAZARD INSURANCE. Landlord shall at its expense,
procure and maintain during the term of this Lease and any extension period
hereof, fire and hazard insurance in an amount equal to the replacement value of
the Building (less footings, foundations and site work) and comprehensive public
liability insurance with a single limitation of liability of not less than
$2,000,000.00, and such insurance shall provide for a waiver of the insurer's
subrogation rights as against Tenant.
(b) PUBLIC LIABILITY INSURANCE, CONTRACTUAL LIABILITY
INSURANCE AND PERSONAL PROPERTY INSURANCE. Tenant shall, at its expense, procure
and maintain during the term of this Lease and any extension period hereof,
comprehensive public liability insurance, contractual liability insurance and
all risk personal property insurance under policies issued by insurers licensed
to do business in the State of New York with a Best rating of not less than A+l5
or equivalent. The Public Liability and Contractual Liability Insurance shall
each have a single limitation of liability of not less than $1,000,000 for
personal injury, bodily injury, death, as well as for damage or injury to or
destruction of property (including the loss of use thereof) for any one
occurrence and an aggregate limitation of liability of not less than
$2,000,000.00. The personal property insurance shall cover all risks and be in
an amount equal to the replacement value of the personal property of Tenant
located on the Property and Corporate Xxxxx Common Areas. Tenant shall maintain
such insurance described in this subsection (b) throughout the term of this
Lease and any extension hereof at that monetary value which the respective
$2,000,000.00 and, replacement value hereinabove stipulated represent as of the
date of this Lease (as determined by Tenant's insurer) and Tenant shall review
the limits of its policies annually to ensure that such monetary value is
maintained each year. Tenant's policies shall:
(i) Name Landlord, its agents, servants and
employees as additional insureds except in the case
of the personal property insurance where Tenant shall
furnish Landlord with a waiver of subrogation;
(ii) Provide for 30 days' notice to Landlord
prior to any amendment, change, modification, lapse
or cancellation of coverage;
(iii) Contain an endorsement that there will
be no defense, disclaimer of coverage, exception or
exclusion based upon any act of the insured.
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Tenant shall furnish Landlord with a binder or a copy of the
policy of insurance with evidence of premium payment within 10 days of execution
of this Lease showing the coverage, clauses and endorsements herein required and
thereafter on request of Landlord such binder or copy of the policy and
evidences of premium payment shall be furnished by Tenant to Landlord not less
than 10 days prior to the expiration date of each such policy.
8. HOLDING OVER
If Tenant fails to vacate the Premises at the expiration of
this Lease or any extension period thereof, if extended, then Tenant shall pay
Landlord Base Rent at double the monthly rate specified in Section 1 for the
time Tenant thus remains in possession. In addition thereto, Tenant shall be
responsible for and reimburse Landlord for all direct and consequential damages
sustained by Landlord by reason of Tenant's retention of possession unless
Tenant's failure to vacate the Premises is due to force majeure, as defined in
Section 25 of the Lease. The provisions of this Section do not exclude
Landlord's rights of re-entry or any other right or remedy of Landlord
hereunder.
9. ASSIGNMENT AND SUBLETTING
The following provisions shall govern any desired subletting
or assignment by Tenant of all or part of the Premises:
(a) PROHIBITION. Except as otherwise set forth herein, Tenant
shall not, without Landlord's prior written consent which shall not be
unreasonably withheld or delayed: (a) assign, convey, mortgage, pledge, encumber
or otherwise transfer (voluntarily or involuntarily) this Lease or any interest
under it; (b) allow any transfer thereof or any lien upon Tenant's interest by
operation of law; (c) sublet the Premises or any part thereof, or (d) permit the
use or occupancy of the Premises or any part thereof by any person or entity
other than Tenant.
(b) RECAPTURE. Notwithstanding anything herein to the
contrary, if at any time or from time to time during the term of this Lease or
any extension period hereof, Tenant desires to sublet or assign this Lease with
respect to all or part of the Premises, Tenant shall notify Landlord in writing
(hereinafter referred to in this Section as the "Notice") of the terms of the
proposed subletting or assignment and the area proposed to be sublet or covered
by the assignment and deliver to Landlord an executed copy of the proposed
sublease or assignment thereby giving Landlord the option to either (i) sublet
from Tenant such space (hereinafter referred to as "Sublet Space") at the same
Rent as Tenant is then required to pay to Landlord under this Lease for the same
space, or (ii) terminate this Lease with respect to the Sublet Space in which
case Tenant shall be released from any further liability hereunder. If the
Sublet Space does not constitute the entire Premises and Landlord exercises its
election to terminate this Lease with respect to the Sublet Space, then, as to
that portion of the Premises which is not part of the Sublet Space, this Lease
and the Rent due from Tenant shall be reduced
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by a fraction, the numerator of which shall be the rentable square feet of the
Sublet Space and the denominator of which shall be the rentable square feet of
the Premises such fraction to be then multiplied by the Rent then due to
determine the amount of the reduction. The election to either sublet or to
terminate this Lease shall be exercisable by Landlord in writing within a period
of twenty (20) days after receipt of the Notice and the executed copy of the
proposed sublease or assignment.
(c) SUPREMACY OF LEASE. In the event Landlord elects to sublet
the Sublet Space, Tenant shall thereafter be released from any further liability
with respect to the Sublet Space and the term of such subletting from Tenant to
Landlord shall be the term set forth in the Notice and such subletting shall be
on such terms and conditions as are contained in this Lease as the then current
Rent, except that Landlord shall have the right to further sublet the Sublet
Space.
(d) REQUIREMENTS. At the same time Tenant delivers the Notice
to Landlord, Tenant shall also submit to Landlord a proposed copy of the
proposed assignment or sublease and such information concerning the proposed
assignment or sublease and the proposed assignee or sublessee as may be
requested by Landlord for Landlord's review and approval which shall not be
unreasonably withheld or delayed. The following shall, however, be requirements
for any approval by Landlord:
(i) The proposed subtenant or assignee must
submit a current financial statement to Landlord and must have
a credit rating satisfactory to Landlord, in Landlord's
reasonable judgment;
(ii) The proposed subtenant or assignee
must, in Landlord's reasonable judgment, be financially
responsible and of good professional reputation as well as
engaged in a business reasonably compatible with the character
of the business of other tenants in the Building and Corporate
Xxxxx.
(iii)The sublease must by its terms be
expressly subject and subordinate to this Lease, must require
that any subtenant comply with and abide by all of the terms
of this Lease, and must provide that any termination of this
Lease shall also extinguish the sublease;
(iv) The proposed subtenant or assignee may
not be any person or entity either then occupying space in
Corporate Xxxxx or one with whom Landlord is then negotiating
for space in Corporate Xxxxx;
(v) Tenant may not then nor at the
commencement of the sublease be in default under this Lease
beyond any applicable grace period;
A fully executed counterpart of the assignment or sublease
must be delivered to Landlord within sixty (60) days after the date of
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Landlord's approval or Landlord's approval of the proposed assignment or
sublease shall be deemed null and void and Tenant shall again comply with all
the conditions of this Section as if the Notice hereinabove referred to had not
been given and received.
(e) REVIEW AND APPROVAL COSTS. Tenant agrees to pay to
Landlord, on demand, the reasonable costs incurred by Landlord in connection
with any request by Tenant for Landlord to consent to any assignment or
subletting by Tenant, including reasonable attorneys' fees.
(f) DEEMED ASSIGNMENT/SUBLET For purposes of this Section 9
the following shall be deemed a prohibited assignment or sublease, as the case
may be:
(i) the transfer of the outstanding capital stock of
any corporate tenant or subtenant or any increase in the
amount of issued and/or outstanding shares of capital stock
and/or the creation of one or more additional classes of
common stock of any corporate tenant or subtenant, or the
transfer of any partnership interest in Tenant or any
subtenant if Tenant or subtenant is a partnership, however
accomplished, whether in a single transaction or in a series
of related or unrelated transactions, such that such corporate
or partnership transfers result in both (a) Xxxxxx X. Black
owning less than thirty-five percent (35%) of the beneficial
and record ownership of such corporate tenant or subtenant or
Xxxxxx X. Black controlling less than thirty--five percent
(35%) of such partnership tenant or subtenant; and (b) an
entity with a financial net worth less than the net worth of
Tenant as of the Commencement Date, as such net worth is
adjusted by three percent (3%) per Lease Year during the term
of this Lease and any extension of the term of this Lease.
(ii) any agreement by any other person or
entity directly or indirectly, to assume Tenant's rights under
this Lease;
(iii) any transfer by operation of law or
otherwise, of Tenant's interest in this Lease; and
(iv) each modification, amendment or
extension of any sublease to which Landlord has previously
consented shall be deemed a new sublease.
Tenant agrees to furnish Landlord upon demand at any time,
such information and assurances as Landlord may reasonably request that neither
Tenant, nor any previously permitted subtenant, has violated the provisions of
this Section.
(g) RIGHTS OF LANDLORD UPON SUBLETTING. If, with the consent
of Landlord, the Premises or any part thereof be sublet or occupied by anybody
other than Tenant, Landlord may, after default by Tenant, collect
16
rent from the subtenant or occupant, and apply the net amount collected to the
Rent herein reserved. If, without consent of Landlord, the Premises or any part
thereof be sublet or occupied, Landlord may collect rent from such subtenant or
occupant and apply the net amount collected to the Rent herein reserved but no
such subletting, occupancy or collection shall be deemed a waiver of any of
Tenant's covenants contained in this Lease or an acceptance by Landlord of the
subtenant or occupant as Tenant. In neither of the foregoing two circumstances
shall Tenant be relieved from its obligations under this Lease or from further
performance by Tenant of covenants on the part of Tenant herein contained.
(h) RIGHTS OF LANDLORD UPON ASSIGNMENT. If, with the consent
of Landlord, this Lease or any interest herein is assigned by Tenant to a third
party assignee, such assignment shall not relieve Tenant of its obligations
hereunder and Landlord may, after default by the assignee in the payment of Rent
or in the performance of any other obligation of Tenant under this Lease, demand
and enforce performance of this Lease by Tenant--assignor including the payment
of Rent from Tenant-assignor to the fullest extent provided by this Lease and/or
the payment by Tenant-assignor of any direct damages sustained by Landlord.
10. CONDITION OF PREMISES
Subject only to such items as are set out on any punch list
prepared by Landlord and Tenant, Tenant's taking possession of the Premises
shall be conclusive evidence as against Tenant that the Premises were in good
order and satisfactory condition when Tenant took possession. No promises of
Landlord to alter, remodel, repair or improve the Premises or the Building and
no representation respecting the condition of the Premises, the Building or the
Property have been made by Landlord to Tenant, other than as may be contained
herein.
For a period of one (1) year after substantial completion of
the Leasehold Improvements Landlord agrees to warrant that the Leasehold
Improvements were made in a good and workmanlike manner except for problems or
damages arising from the negligence of Tenant, excessive wear and tear by Tenant
or design defects or malfunctions arising from Tenant's Plans and
Specifications.
Any warranty claims made by Tenant shall be in writing to
Landlord. Subject to force majeure, Landlord shall correct the defect within
thirty (30) days after receipt of written notice from Tenant of the defect,
provided, however, that if any such defect cannot be corrected within said
thirty (30) day period with due diligence, then the time to correct such defect
shall be extended for a period reasonably necessary to correct such defect.
At the expiration or earlier termination of this Lease, Tenant
shall return the Premises broom--clean and in as good condition as when Tenant
took possession, ordinary wear and loss by fire or other casualty
17
excepted, failing which Landlord may restore the Premises to such condition and
Tenant shall pay the cost thereof on demand.
11. USE OF PREMISES
Tenant agrees to comply with the following provisions
regarding the use of the Premises.
(a) PROHIBITION ON SELLING ACTIVITIES. Tenant shall not engage
in the retail or wholesale sale of goods on or from the Premises or in the
Building without the advance consent of Landlord.
(b) COMPLIANCE WITH LAW. Tenant will not make or permit to be
made any use of the Premises or any part thereof which would violate any of the
covenants, agreements, terms, provisions and conditions of this Lease or any
mortgage on the Property or which directly or indirectly is forbidden by public
law, ordinance or governmental regulation (including, without limitation, all
environmental laws) or which may be dangerous to life, limb, or property, or
which may invalidate or increase the premium cost of any policy of insurance
carried on the Building, the Property or covering its operation, or which will
suffer or permit the Premises or any part thereof to be used in any manner or
anything to be brought into or kept therein which, in the judgment of Landlord,
would in any way impair or tend to impair the character, reputation or
appearance of the Property or of Corporate Xxxxx as a high quality office park,
or which would impair or interfere with or tend to impair or interfere with any
of the services performed by Landlord for the Property or Corporate Xxxxx.
Tenant agrees to change, reduce or stop any such use or install necessary
equipment, safety devices, pollution control systems or other installations at
any time during this Lease to comply with the foregoing.
(c) SIGNS. Tenant shall not display, inscribe, print, paint,
maintain or affix on any place on the exterior or interior of the Building
(excepting only such part or parts of the Premises as is or are not visible from
outside the Building) nor on the Lot or any Common Area any decoration, sign,
notice, legend, direction, figure, or advertisement or window treatment,
curtains or display materials except in or at such place or places, and then
only such name(s) and matter, and in such color, size, style, place and
materials, as shall first have been approved by Landlord in writing.
(d) ADVERTISING. Tenant shall not advertise the business,
profession or activities of Tenant conducted in the Building in any manner which
violates the letter or spirit of any code of ethics adopted by any recognized
association or organization pertaining to such business, profession or
activities and shall not use the name of the Building for any purposes other
than that of the business address of Tenant, and shall never use any picture or
likeness of the Building in any circulars, notices, advertisements or
correspondence without Landlord's consent.
18
(e) LOCKS. No additional locks or similar devices shall be
attached to any door or window without Landlord's prior written consent and no
keys for any door other than those provided by Landlord shall be made. If more
than two keys for one lock are desired, Landlord will provide the same upon
payment by Tenant. All keys must be returned to Landlord at the expiration or
termination of this Lease.
(f) ALTERATIONS. Tenant shall not make any alterations,
improvements, or additions of or to the Premises (collectively, "Alteration")
without Landlord's advance written consent in each and every instance which
consent shall not be unreasonably withheld or delayed. In the event Tenant
desires to make any Alteration, Tenant shall first submit to Landlord plans and
specifications therefor and obtain Landlord's written approval thereof prior to
commencing any such work. Any such plans and specifications shall be approved or
disapproved by Landlord within thirty (30) days after receipt and if
disapproved, Landlord shall state its reasons for such disapproval. Any
contractor hired by Tenant must be properly insured and, if required, licensed.
Each and every Alteration, whether temporary or permanent in character, made by
Landlord or Tenant in or upon the Premises shall become Landlord's property and
shall remain upon the Premises at the expiration or earlier termination of this
Lease without compensation to Tenant (excepting only Tenant's movable office
furniture, trade fixtures, office and professional equipment) unless Landlord in
writing requires Tenant to remove such Alteration upon expiration of the term of
this Lease or any extension period, if extended. Landlord shall serve such
writing upon tenant regarding the removal of an Alteration not later than ninety
(90) days prior to the expiration of the term of this Lease or extension period,
if extended, and Tenant shall thereafter remove such Alteration as herein
required, repair any damage caused by such removal and restore the Premises to
the condition specified in Section 10 of this Lease.
(g) AFTER HOURS OCCUPANCY AND VISITORS. All persons entering
or leaving the Building after hours on Monday through Friday, or at any time on
Saturdays, Sundays and holidays, may be required to do so under such regulations
as Landlord may impose. The purpose of this provision is not to limit Tenant's
use or occupancy of the Premises but is to secure and protect the Premises.
Landlord may exclude or expel any peddler.
(h) FLOOR PLAN. The load bearing capacities of the floors of
the Premises are 55 lbs/square foot of live load on the second floor space and
75 lbs/square foot of live load on the first floor space. Tenant shall not
overload any floor. Landlord may direct the time and manner of delivery, routing
and removal, and the location, of safes and other heavy articles.
(i) INSTALLATION OF MACHINERY; PROHIBITION AGAINST LODGING.
Unless Landlord gives advance written consent, Tenant shall not install or
operate any steam or internal combustion engine, boiler, machinery,
refrigerating or heating device or air-conditioning apparatus in or about the
Premises, or carry on any mechanical business therein,
19
or use the Premises for housing accommodations or lodging or sleeping purposes,
or do any cooking therein except as otherwise provided herein, or use any
illumination other than electric light, or use or permit to be brought into the
Building any flammable fluids such as gasoline, kerosene, naphtha, and benzine,
or any explosives, radioactive materials or other articles deemed extra
hazardous to life, limb or property except in a manner which would not violate
any ordinance or regulation of the Town of Brighton. Notwithstanding the
foregoing, Tenant shall have the right to install and use a kitchen in the
Premises for use by Tenant and its employees and guests, which kitchen may
contain a microwave oven, refrigerator, ice machine and dishwasher. Tenant shall
not use the Premises for any illegal or immoral purpose.
(j) ENERGY CONSERVATION. Tenant shall cooperate fully with
Landlord's reasonable directions to assure the effective operation of the
Building's air-conditioning system, including the closing of the venetian blinds
and drapes, and the keeping closed of any operable windows when the
air-conditioning system is in use. Tenant shall further comply with any
applicable federal laws, rules, ordinances or administrative enactments on
energy conservation, in office buildings.
(k) CONTRACTS. Tenant shall not contract for any work or
service which might involve the employment of labor in violation of any contract
with the Building employees or employees of contractors doing the work or
performing services, by or on behalf of Landlord on an ongoing basis (full time
or part time but not ad hoc). It is understood that the provisions of this
subsection shall apply to any construction work, alterations, repairs and
maintenance services provided at or to the Building by Tenant.
(l) ACCESS. Except as otherwise expressly permitted in this
Lease, the Common Area, sidewalks, halls, passages, exits, entrances, and
stairways shall not be obstructed by Tenant or used for any purpose other than
for ingress to and egress from its Premises. The common areas, halls, passages,
exits, entrances, elevators, stairways and roof are not for the use of the
general public and Landlord shall in all cases retain the right to control and
prevent access thereto by all persons whose presence, in the judgment of
Landlord, shall be prejudicial to the safety, character, reputation and
interests of the Property, the Building and its tenants, provided that nothing
herein contained shall be construed to prevent such access to persons with whom
Tenant normally deals in the ordinary course of Tenant's business unless such
persons are engaged in illegal activities. No Tenant and no employees or
invitees of Tenant shall go upon the roof or mechanical floors of the Building.
(m) NUISANCE. Tenant shall not use, keep or permit to be used
or kept any foul or noxious gas or substance in the Premises, or permit or
suffer the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Property or the Building by
reason of noise, odors and/or vibrations, or interfere in any way with other
tenants or those having business therein, nor shall any
20
animals or birds be brought in or kept in or about the Premises of the
Building or the Property.
(n) SECURITY AND ELECTRIC CONSUMPTION. Tenant shall take
reasonable precautions to see that the doors, and windows, if operable, of the
Premises are closed and securely locked before leaving the Building and must
observe strict care and caution that all water faucets or water apparatus in the
Premises are entirely shut off before Tenant or Tenant's employees leave the
Building. The foregoing provisions of this subsection shall not give rise to a
default by Tenant unless Tenant's failure to take such reasonable precautions
results in actual damage being sustained in or to the Building and/or Premises.
If required by law or regulation, all electricity shall likewise be carefully
shut off so as to prevent waste or damage, and for any default or carelessness
Tenant shall make good all injuries and losses sustained by Landlord to the
extent of any deductibles and such excess costs as are not paid or covered under
Landlord's or Tenant's insurance and as are sustained by Landlord as a result,
in whole or in part, from Tenant's negligence.
In addition to any liability for breach of any covenant of
this Section, Tenant shall pay to Landlord an amount equal to any increase in
insurance premiums payable by Landlord, caused by such breach, default or
carelessness on the part of Tenant.
12. REPAIRS
Tenant shall give to Landlord prompt written notice of any
damage to, or defective condition in the Building structure or in any part or
appurtenance of the Building's plumbing, electrical, heating, air--conditioning,
ventilation, sprinkler, elevator or other systems serving, located in, or
passing through the Premises. Subject to the provisions of this Section 12,
Tenant shall, at Tenant's own expense, keep the Premises in good order,
condition and repair during the term, except that Landlord, at Landlord's
expense (unless caused by the fault or negligence of Tenant, its contractors,
agents, or employees in which case Tenant shall pay Landlord for any deductible
and any cost which either exceeds insurance proceeds Landlord receives or which
is not covered under Landlord's insurance policy in respect of such damage)
shall keep in repair and maintain the exterior of the Building, the electrical,
heating, air-conditioning, ventilation, sprinkler, elevator or other systems
serving, located in or passing through the Premises, plumbing fixtures located
in the Building (except those installed by Tenant with Landlord's approval),
outside walls, including windows, loadbearing walls (except as to surface damage
done by or attributable to Tenant) and doors and roof.
Tenant, at Tenant's expense, shall comply with all laws and
ordinances, and all rules and regulations of all governmental authorities and of
all insurance bodies at any time in force, applicable to the Premises or to
Tenant's use thereof, except that Tenant shall not hereby be under any
obligation to comply with any law, ordinance, rule or regulation requiring any
structural alteration of or in connection with
21
the Premises, unless such alteration is required by reason of a condition which
has been created by, or at the instance of, Tenant, or is required by reason of
a breach of any of Tenant's covenants and agreements hereunder. Landlord shall
not be required to repair any injury or damage by fire or other cause, or to
make any repairs or replacements of any panels, decoration, office fixtures,
railing, ceiling, floor covering, partitions, or any other property installed in
the Premises by Tenant unless such injury or damage is a direct result of
negligence on the part of Landlord or its contractors, agents or employees, and
Tenant is not reimbursed for such injury or damage from insurance proceeds.
13. DESTRUCTION OF PREMISES
(a) If the Premises shall be partially (herein defined as less
than fifty (50%) percent of the then replacement value) damaged by fire or other
causes, the damage shall be repaired promptly (within not more than sixty (60)
days unless such damage cannot be repaired within such time, then within a
reasonable time) by and at the expense of Landlord and the Rent, until such
repairs shall be made, shall be abated by multiplying the rent then due by a
fraction the numerator of which shall be the number of square feet of the
Premises which is not usable and in fact is not used by Tenant and the
denominator of which shall be the number of square feet of the entire Premises.
In the event, however, that such partial damage is due to the fault of Tenant,
Tenant's servants, employees, agents, visitors or licensees, Tenant shall pay
the costs of such repairs to the extent that no insurance proceeds or
insufficient insurance proceeds (including any deductible) are received by
Landlord for such damage. No penalty shall accrue for delays which may arise
through adjustment of insurance or for delays on account of any cause beyond
Landlord's control.
(b) If such partial damage constitutes damage to fifty (50%)
percent or more of the then replacement value of the Premises; and
(i) such damage occurs during the first four and
one-half years of the term of this Lease or the first four years of the Term
if extended pursuant to the option granted Tenant in Article 36 hereof,
Landlord shall, at its expense, within two hundred forty (240) days
subsequent to the event that caused such damage, repair the same as feasibly
as possible to the condition existing immediately prior to such damage
excluding non--Building Standard Work or Tenant improvements not previously
included within Landlord's Allowance. Rent, until such repairs have been
made, shall be abated pursuant to the formula set forth in Section 13(a); or
(ii) in the event the damage or destruction
occurs during the last twelve (12) months of the initial term of this Lease,
Landlord shall be obligated to make any such repair, unless, (x) Landlord
shall notify Tenant of its decision not to repair within sixty (60) days of
the event causing the damage and (y) Tenant, within sixty (60) days of the
event causing such damage, shall fail to exercise its option to extend the
Term. In the event Landlord is obligated to make such repairs,
22
Landlord shall, at its expense, and within two hundred forty (240) days
subsequent to the event causing the damage, repair the same as feasibly as
possible to the condition existing prior to the damage excluding, however,
non--Building Standard Work or Tenant improvements not previously covered by the
Landlord's Allowance. Rent, until such repairs have been made, shall be abated
pursuant to the formula set forth in Section 13(a). In the event Landlord should
elect not to make repairs as in this subparagraph provided, this Lease shall
terminate and Tenant shall vacate the Premises and surrender the same to
Landlord within a reasonable period of time after notice from Landlord.
(iii) in the event the damage or destruction occurs
during the last twelve (12) months of the extension term of this Lease, Landlord
shall have no obligation to make any repair unless Landlord notifies Tenant of
its decision to repair within sixty (60) days of the event causing the damage.
If Landlord notifies Tenant the repairs shall be made in accordance with
subsection 13(b)(ii) above. If Landlord does not notify Tenant within such time
period, the Lease will terminate in accordance with subsection 13(b)(ii) above.
Tenant hereby expressly waives the provisions of Section 227
of the Real Property Law and agrees that the foregoing provisions shall govern
and control in lieu thereof. The obligation of Landlord under this Section 13
shall be expressly subject to Section 25 on Force Majeure.
14. CONDEMNATION
If the Premises or any part thereof shall be taken by any
public or private authority through condemnation or eminent domain, Landlord
shall immediately notify Tenant in writing.
If such taking reduces the Premises by more than 40% (whether
by a single taking or a series of takings) either party may terminate this Lease
at any time by written notice to the other to be given within ninety (90) days
of the date of the taking. Should Tenant or Landlord elect not to terminate this
Lease, the Rent shall be reduced from and after such taking by an amount to be
determined by multiplying the Rent which would otherwise have been due by a
fraction of which the numerator shall be the number of square feet of the
remaining portion of the Premises, and the denominator the number of square feet
of the entire Premises.
If all of the parking spaces for the Building are taken then
Landlord shall provide Tenant with alternate parking, reasonably located, within
a reasonable time after Tenant's written notice to Landlord of such taking. If
Landlord fails to provide such alternate parking, within a reasonable time after
Tenant's written notice to Landlord of such taking, Tenant may terminate this
Lease.
In the event this Lease is not terminated as above provided,
Landlord covenants and agrees to restore said Premises within 180 days of the
expiration of the 90-day period above referred to.
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Whether this Lease is terminated or not, Landlord shall be
entitled to all the proceeds of the condemnation award with respect to the value
of the Building and/or Lot taken, and Tenant shall have no claim against
Landlord or the condemning authority for any unexpired term of this Lease nor
for any other leasehold interests. Notwithstanding the above, Tenant's only
claims shall be for moving expenses, trade fixtures and any Alterations made by
Tenant, provided Tenant's claims do not in any way reduce or diminish Landlord's
claim against the condemning authority.
15. CERTAIN RIGHTS RESERVED TO LANDLORD
Landlord reserves the following rights:
(a) To name the Building or the Property and to change the
name or street address of the Building or Corporate Xxxxx.
(b) To install and maintain a sign or signs on the exterior or
interior of the Building or on the Lot provided any such sign or signs will not
be located in the Premises except as may be required by law, regulation or
administrative enactment.
(c) To designate all sources furnishing sign painting and
lettering, towels, toilet supplies, mobile vending service, and like services
used on the Premises or in the Building. Notwithstanding the foregoing and
notwithstanding any prohibition elsewhere in this Lease on cooking in the
Premises, Tenant may install and use a coffee machine, vending machines,
refrigerator, stove and microwave oven for use by employees so long as the same
is not prohibited under local, state or federal law.
(d) To constantly have pass keys to the Premises.
(e) On reasonable prior notice to Tenant, and during normal
business hours to exhibit the Premises with an agent of Tenant present to
prospective tenants and to any prospective purchaser, mortgagee, or assignee of
any mortgage on the Property and to others having a legitimate interest during
the term or any extension period hereof, if extended, upon reasonable advance
notice to Tenant.
(f) At any time and without notice in the event of an
emergency, and otherwise upon reasonable notice and at reasonable times, to take
any and all measures, including inspections, repairs, alterations, additions and
improvements to the Premises, the Building or to the Property, as may be
necessary or desirable for the safety, protection or preservation of the
Premises, the Building or the Property or Landlord's interests, or as may be
necessary or desirable in the operation or improvement of the Premises, the
Building or the Property or in order to comply with all laws, orders and
requirements of governmental or other authority. To the extent reasonably
possible, Landlord shall minimize any interference with Tenant's use and
occupancy of the Premises.
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16. LANDLORD'S REMEDIES
All rights and remedies of Landlord herein enumerated shall be
cumulative, and none shall exclude any other right or remedy allowed by law. In
addition to the other remedies in this Lease provided, Landlord shall be
entitled to the restraint by injunction of any violation or attempted material
violation of any of the covenants, agreements or conditions of this Lease.
(a) BANKRUPTCY; RE-ORGANIZATION. If Tenant shall (i) apply for
or consent to the appointment of a receiver, trustee or liquidator of Tenant or
of all or a substantial part of its assets, (ii) admit in writing its inability
to pay its debts as they come due, (iii) make a general assignment for the
benefit of creditors,(iv) file a petition or an answer seeking reorganization or
arrangement with creditors or to take advantage of any insolvency law other than
the federal Bankruptcy Code, or (v) file an answer admitting the material
allegations of a petition filed against Tenant in any reorganization or
insolvency proceeding, other than a proceeding commenced pursuant to the federal
Bankruptcy Code, or if any order, judgment or decree shall be entered by any
court of competent jurisdiction, except for a bankruptcy court or a federal
court sitting as a bankruptcy court, adjudicating Tenant insolvent or approving
a petition seeking reorganization of Tenant or appointing a receiver, trustee or
liquidator of Tenant or of all or a substantial part of its assets, and Tenant
is unable to restore its financial position, stay any Bankruptcy proceeding or
cure any of the aforementioned events of default within 60 days after such
occurrence, then, in any such event and upon the passage of 60 days thereafter,
Landlord may give to Tenant a notice of intention to end the term of this Lease
specifying a day not earlier than ten (10) days thereafter, and upon the giving
of such notice the term of this Lease and all right, title and interest of
Tenant hereunder shall expire as fully and completely on the day so specified as
if that day were the date herein specifically fixed for the expiration of the
term.
(b) DEFAULT IN TENANT OBLIGATIONS. If Tenant defaults in the
payment of Rent and such default continues for 5 days after notice, or defaults
in the prompt and full performance of any other provision of this Lease and such
default continues for 30 days after notice, or if such default cannot be cured
within 30 days, Tenant does not commence to cure such default within 30 days and
diligently pursue the same to completion thereafter, or if the leasehold
interest of Tenant be levied upon under execution or be attached by process of
law and such levy or attachment is not removed within 30 days thereafter, or if
Tenant abandons the Premises and ceases to pay Rent hereunder for a period in
excess of 30 days, then and in any such event Landlord may, at its election,
either terminate the Lease and Tenant's right to possession of the Premises or,
without terminating this Lease; endeavor to relet the Premises. Nothing herein
shall be construed so as to relieve Tenant of any obligation, including the
payment of Rent, as provided in this Lease.
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(c) SURRENDER OF POSSESSION; LANDLORD'S RIGHT TO RE-ENTER.
Upon any termination of this Lease, Tenant shall surrender possession and vacate
the Premises immediately, and deliver possession thereof to Landlord, and hereby
grants to Landlord full and free license to enter into and upon the Premises to
repossess Tenant of the Premises as of Landlord's former estate and to expel or
remove Tenant and any others who may be occupying or within the Premises and to
remove any and all property therefrom, using such force as may be necessary,
without being deemed in any manner guilty of trespass, eviction or forcible
entry or detainer, and without relinquishing Landlord's right to Rent or any
other right given to Landlord hereunder or by operation of law.
(d) RE-LETTING. If, pursuant to the provisions of this Lease,
Landlord becomes entitled to elect, and Landlord does elect, without terminating
the Lease, to endeavor to relet the Premises, Landlord may, at Landlord's
option, enter into the Premises, remove Tenant's signs and other evidence of
tenancy, and take and hold possession thereof as in Paragraph (c) of this
Section provided, without such entry and possession terminating the Lease or
releasing Tenant, in whole or in part, from Tenant's obligation to pay the Rent
hereunder for the full term as hereinafter provided. Upon and after entry into
possession without termination of the Lease, Landlord may relet the Premises or
any part thereof for the account of Tenant to any person, firm or corporation
other than Tenant for such rent, for such time and upon such terms as Landlord
shall determine to be reasonable. In any such case, Landlord may make repairs,
alterations and additions in or to the Premises, and redecorate the same to the
extent deemed by Landlord necessary or desirable, and Tenant shall, upon demand,
pay the reasonable cost thereof, together with Landlord's reasonable expenses of
the reletting. If the consideration collected by Landlord upon any such
reletting for Tenant's account is not sufficient to pay monthly the full amount
of the Rent reserved in this Lease, together with the cost of repairs,
alterations, additions, redecorating and Landlord's expenses, Tenant shall pay
to Landlord the amount of each monthly deficiency upon demand.
(e) DAMAGES AND ACCELERATION. If Landlord elects to terminate
this Lease for any of the reasons specified in this Section 16 of the Lease, it
being understood that Landlord may elect to terminate the Lease after and
notwithstanding its election to terminate Tenant's right to possession as in
Paragraph (b) of this Section 16, provided Landlord shall forthwith upon such
termination be entitled to recover as damages, and not as a penalty, an amount
equal to the then present value of the Rent provided in this Lease for the
residue of the stated term hereof, less the present value of the fair rental
value of the Premises for the residue of the stated term. The discount rate used
to calculate present value shall be 10%.
If, however, Tenant has defaulted in the payment of Rent, or
in failing to keep in effect the insurance required under Section 7 or by
subletting the Premises or assigning this Lease in violation of Section 9, then
Landlord may terminate this Lease, and accelerate all Rent due hereunder from
the date of such default through the end of the
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term of this Lease or any extension period, if extended, and demand immediate
payment in full of all Rent as so accelerated.
(f) TENANT'S PERSONAL PROPERTY. Any and all property which may
be removed from the Premises by Landlord pursuant to the authority of the Lease
or of law, to which Tenant is or may be entitled, may be handled, removed or
stored by Landlord at the risk, cost and expense of Tenant, and Landlord shall
in no event be responsible for the value, preservation or safekeeping thereof.
Tenant shall pay to Landlord, upon demand, any and all expenses incurred in such
removal and all storage charges against such property. Any such property of
Tenant not removed from the Premises or retaken from storage by Tenant within
thirty (30) days after the end of the term or of Tenant's right to possession of
the Premises, however terminated, shall be conclusively deemed to have been
forever abandoned by Tenant and either may be retained by Landlord as its
property or may be disposed of in such manner as Landlord may see fit.
(g) LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS. Tenant
agrees that if it shall at any time fail to make any payment or perform any
other act on its part to be made or performed under this Lease, Landlord may,
but shall not be obligated to, and after reasonable notice or demand and without
waiving, or releasing Tenant from, any obligation under this Lease, make such
payment or perform such other act to the extent Landlord may deem desirable, and
in connection therewith, Landlord may pay expenses and employ counsel. If legal
action is required to enforce performance by Tenant of any condition, obligation
or requirement hereunder, the costs of any such action including attorneys' fees
will be paid solely by the party not prevailing in such action. All sums so paid
by Landlord and all expenses in connection therewith, together with interest
thereon at the maximum rate permitted by law from the date of payment, shall be
deemed Additional Rent hereunder and payable at the time of any installment of
Rent thereafter becoming due and Landlord shall have the same rights and
remedies for the non-payment thereof, or of any other Additional Rent, as in the
case of default in the payment of Rent.
17. LATE CHARGE
A late charge shall be due and owing on any installment of
Rent not received by Landlord by the fifth (5th) business day of the calendar
month in which due and on any monetary obligation of Tenant or charge due from
Tenant not paid by Tenant when due. Such late charge shall equal three percent
(3%) of the then unpaid monthly Rent, shall be billed by Landlord to Tenant with
the Rent for the calendar month next following and shall be paid by Tenant
together with the Rent due for such month.
18. SUBORDINATION OF LEASE
The rights of Tenant under this Lease shall be and are subject
and subordinate at all times to all ground leases, and/or underlying leases, if
any, now or hereafter in force against the Property, and to
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the lien of any mortgage or mortgages now or hereafter in force against such
leases and or the Property, and to all advances made or hereafter to be made
upon the security thereof, and to all renewals, modifications, consolidations,
replacements and extensions thereof. This Section is self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, however, Tenant shall promptly execute such further instruments
as may be requested by Landlord, provided such are reasonably acceptable to
Tenant's counsel. Tenant, at the option of any mortgagee, agrees to attorn to
such mortgagee in the event of a foreclosure sale or deed in lieu thereof.
Notwithstanding the foregoing, however, Landlord agrees to
cause the holders of any leases and/or mortgages currently encumbering the
Property (including the present construction financing on the Property and
initial permanent financing on or to be placed on the Property) to agree that
this Lease shall not be divested or in any way affected by foreclosure or other
default proceedings under such leases and/or mortgages, so long as Tenant shall
not be in default under the terms of this Lease and that this Lease shall remain
in full force and effect notwithstanding any such default proceedings under such
leases and/or mortgages.
19. NOTICES AND CONSENTS
All notices, demands, requests, consents or approvals
(collectively, "Notice") which may or are required to be given by either party
to the other shall be in writing and shall be deemed given on the third (3rd)
day after the date of postmark when sent by United States Certified or
Registered Mail, postage prepaid return receipt requested or if delivered by
hand, on the date of delivery against receipt. Notwithstanding the above, all
Notices by Landlord to Tenant with respect to any defaults by Tenant of any of
the covenants or provisions of this Lease shall be in writing and shall only be
deemed given on the third (3rd) day after the date of postmark, when sent by
United States Certified or Registered Mail, postage prepaid, return receipt
requested.
Such Notice shall be mailed or delivered as follows:
(a) IF TO TENANT: (until the Commencement Date; thereafter such
Notice shall be mailed or delivered to Tenant at
the Premises)
Xxxxxx X. Black Corporation
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Treasurer and Secretary
with a copy to: Xxxxxx, Beach & Xxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
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(b) IF TO LANDLORD: Corporate Xxxxx Associates
c/o Natapow Management Group, Agent
000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Vice President of Leasing
with a copy to: Phillips, Lytle, Xxxxxxxxx, Xxxxx & Xxxxx
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx Xxxx, Esq. and
Xxxx X. Xxxxx, Esq.
The parties may by written notice to the other designate a
different person or entity to receive notices hereunder and/or a different
address or addresses. If the term Tenant as used in this Lease refers to more
than one person any Notice given as aforesaid to any one of such persons shall
be deemed to have been duly given to Tenant.
20. NO ESTATE IN LAND
This contract and Lease shall create the relationship of
landlord and tenant between Landlord and Tenant; no estate shall pass out of
Landlord; and Tenant has only a usufruct which is not subject to levy and sale.
21. INVALIDITY OF PARTICULAR PROVISIONS
If any clause or provision of this Lease is or becomes
illegal, invalid, or unenforceable because of present or future laws or any rule
or regulation of any governmental body or entity, effective during its term, the
intention of the parties hereto is that the remaining parts of this Lease shall
not be thereby affected.
22. WAIVER OF TRIAL BY JURY
It is mutually agreed by and between Landlord and Tenant that the
respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Premises, and any emergency statutory or any other statutory
remedy.
23. MISCELLANEOUS TAXES
Tenant shall pay prior to delinquency all taxes assessed
against or levied upon its occupancy of the Premises, or upon the fixtures,
furnishings, equipment and all other personal property of Tenant located in the
Premises other than those furnished and paid for by Landlord, if nonpayment
thereof shall give rise to a lien on the real estate, and when possible Tenant
shall cause said fixtures, furnishings,
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equipment and other personal property to be assessed and billed separately from
the property of Landlord. In the event any or all of Tenant's fixtures,
furnishings, equipment and other personal property, or upon Tenant's occupancy
of the Premises, shall be assessed and taxed with the property of Landlord,
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 occupancy or fixtures, furnishings,
equipment or personal property. Landlord shall pay any and all Real Estate Taxes
assessed and levied against Corporate Xxxxx, in each case prior to the
respective delinquency dates thereof. If such taxes may be paid in installments,
Landlord shall have the right to do so.
24. BROKERAGE
Tenant and Landlord represent and warrant that they have dealt
with no broker, agent or other real estate sales person in connection with this
Lease other than Natapow Realty Corporation and that, other than as herein
expressly set forth, no broker, agent or such other person brought about this
transaction. Tenant and Landlord agree to indemnify and hold each other harmless
from and against any claims by any broker, agent or other real estate sales
person claiming a commission or other form of compensation by virtue of this
Lease or of having dealt with Tenant or Landlord with regard to this leasing
transaction and should a claim for such commission or other compensation be made
it shall be promptly paid or bonded by the party who has dealt with the person
or entity making such claim. The provisions of this Section shall survive the
termination of this Lease.
25. FORCE MAJEURE
Except as otherwise provided in this Lease and except as to
the payment of Rent or other monies due under this Lease neither party shall be
responsible for delays or inability to perform its obligations hereunder for
causes beyond the control of such party including acts of other tenants,
governmental restriction, regulation or control, labor dispute, accident,
mechanical breakdown, shortages or inability to obtain labor, fuel, steam,
water, electricity or materials, acts of God, enemy action, civil commotion, or
fire or other casualty.
26. PARKING
Subject to weather, necessary repair work and any force
majeure occurrences (as described above), Landlord shall provide Tenant, at no
cost, with at least 150 non-reserved parking spaces and 10 designated visitor
parking spaces, all available on a first--come, first--served basis in the
parking areas for the Building.
27. REPETITIVE DEFAULTS
In the event Tenant shall default (i) more than twice in any
twelve month period by failing to pay Rent on or before the 5th business
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day of the month when due or (ii) more than twice in any six month period in the
performance of any of its other obligations under this Lease, then,
notwithstanding that such defaults shall have each been cured within the
applicable grace period, Tenant shall no longer be entitled to any written
notice and grace period for a subsequent default but such default shall be
deemed deliberate and Landlord may thereafter enforce this Lease at law and/or
in equity.
28. DIRECTORY AND SIGNAGE
Tenant shall have the right to have its name and suite number
listed in the lobby directory, located in the lobby of the Building and in the
directory, to be placed on the exterior monument in front of the Building. All
such listings shall be in such size, lettering, color and form as are prescribed
by Landlord from time to time. In addition, Landlord shall provide Tenant with
suite signage at one primary entrance to Tenant's Premises on the first floor
and on the second floor of the Building. Such suite signage shall be in
accordance with the Building Standards set forth on Exhibit B attached hereto.
29. ENTRANCE AND EXIT TO PROPERTY
Landlord covenants and agrees that there shall be a double
entrance and exit lane at the entrance of the Premises. In addition, Landlord
covenants and agrees that a traffic signal shall be located at the entrance to
the Property and installed by the Government entity having jurisdiction.
30. SPECIAL STIPULATIONS
(a) No receipt of money by Landlord from Tenant after the
termination of this Lease or after the service of any notice or after the
commencement of any suit or after final judgment for possession of the Premises
shall reinstate, continue or extend the term of this Lease or affect any such
notice, demand or suit or imply consent for any action for which Landlord's
consent is required.
(b) No waiver of any default of Tenant or of Landlord
hereunder shall be implied from any omission by Landlord or Tenant, as the case
may be, to take any action on account of such default if such default persists
or be repeated, and no express waiver shall affect any default other than the
default specified in the express waiver and that only for the time and to the
extent therein stated.
(c) The term "Landlord" as used in this lease, so far as
covenants or agreements on the part of Landlord are concerned, shall be limited
to mean and include only the owner or owners of Landlord's interest in this
Lease at the time in question, and in the event of any transfer or transfers of
such interest Landlord herein named (and in case of any subsequent transfer, the
then transferor) shall be automatically freed and relieved from and after the
date of such transfer of all personal liability from events which occur after
the date of transfer.
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Any such release of Landlord under this paragraph shall become effective only at
such time as Landlord's transferee is deemed to be bound to the terms and
provisions of this Lease. It is understood, however, that Landlord shall
reimburse Tenant for any overpayments of Rent made by Tenant prior to the
assignment and any prepayment of Rent for months subsequent to the assignment.
(d) It is understood that Landlord may occupy portions of the
Building in the conduct of Landlord's business. In such event, all references
herein to other tenants of the Building shall be deemed to include Landlord as
an occupant.
(e) Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being dispossessed or removed from the Premises because of default by Tenant
pursuant to the covenants or agreements contained in this Lease.
(f) Tenant specifically agrees to look solely to Landlord's
equity interest in the Property for recovery of any judgment against Landlord.
There shall be absolutely no personal liability of persons, partnerships, firms,
corporations or other entities who at any time constitute the Landlord with
respect to any of the terms, covenants, conditions and provisions of this Lease.
(g) The parties acknowledge that each party and its respective
counsel have reviewed this Lease and that no rule of construction to the effect
that any ambiguities are to be resolved against the drafting party shall be
employed in the interpretation of this Lease or any amendment or exhibits
hereto.
31. QUIET ENJOYMENT
So long as Tenant shall observe and perform the covenants and
agreements binding on it hereunder and shall not be in default beyond any
applicable grace period, Tenant shall at all times during the term herein
granted peacefully and quietly have and enjoy possession of the Premises without
any encumbrance or hindrance by, from or through Landlord.
32. ESTOPPEL CERTIFICATE BY TENANT
Landlord and Tenant agree that from time to time upon not less
than five (5) days prior request of the other, to deliver to the party making
the request a statement in writing certifying (a) that this Lease is unmodified
and in full force and effect (or if there have been modifications that the same
is in full force and effect as modified and identifying the modifications), (b)
the dates to which the Rent and other charges have been paid, and (c) that, so
far as the person making the certificate knows, the other party is not in
default under any provision of this Lease, or if such were not to be the fact,
then certifying such default of which the person making the certificate may have
knowledge,
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it being understood that any such certificate so delivered may be relied upon by
any landlord under any ground or underlying lease, or any prospective purchaser,
lender, mortgagee, or any assignee of any mortgage on the Property or any party
purchasing the assets of Landlord or Tenant, as the case may be, or acquiring
the same by merger, succession or otherwise.
33. RENT DEPOSIT
Upon execution of this Lease, Tenant will deposit with
Landlord the sum of THIRTY-TWO THOUSAND SIX HUNDRED AND 00/100 DOLLARS
($32,600.00) as a deposit for the first monthly installment of Base Rent due
hereunder. Landlord shall credit this deposit against the first monthly
installment of Base Rent to be paid by Tenant after the expiration of the period
where Landlord waives Base Rent set forth in Section 3(i) herein.
34. SUBSTITUTE PREMISES
If the Premises contain an area of 2,500 square feet or less,
Landlord shall have the right at any time during the term hereof, upon giving
Tenant not less than sixty (60) days prior written notice, to provide and
furnish Tenant with space elsewhere in the Building of Corporate Xxxxx of
approximately the same size as the Premises and remove and place Tenant in such
space, with Landlord to pay all reasonable costs and expenses incurred as a
result of such removal of Tenant. Should Tenant refuse to permit Landlord to
move Tenant to such new space at the end of said sixty (60) day period, Landlord
shall have the right to cancel and terminate this Lease effective ninety (90)
days from the date of original notification by Landlord. If Landlord moves
Tenant to such new space, this Lease and each and all of its terms, covenants
and conditions shall remain in full force and effect and be deemed applicable to
such new space, and such new space shall thereafter be deemed to be the Premises
as though Landlord and Tenant had entered into an express written amendment of
this Lease with respect thereto.
35. FINANCIAL STATEMENTS
Tenant shall provide Landlord with financial statements
detailing the financial condition of Tenant. Such statements shall be provided
on an annual basis (or more frequently if requested by Landlord) and shall be
verified by the affidavit of Tenant or if the same be a corporation by an
affidavit of its principal financial officer. Tenant shall further provide
Landlord such additional financial statements in such form and such
certifications as Landlord may from time to time reasonably request.
36. EXTENSION OF TERM
Tenant shall have the right to extend this Lease for one
additional five year term. Such extension shall be confirmed in writing
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by and between the parties and shall be made upon the same terms and conditions
set forth in this Lease (except this section relating to extension of term) and,
in particular, at the then applicable rent (including Base Rent, Additional Rent
and any other charges due hereunder) as increased in accordance with Section
3(b) of this Lease. Tenant must give written notice to Landlord of its desire to
extend this Lease on or before twelve (12) months before the expiration of the
initial term of this Lease and if within thirty (30) days after receipt from
Landlord of notice that Tenant has not given such notice, such notice is not
given by Tenant, this right to extend shall be null and void and of no further
force or effect whatsoever.
37. USE OF CONFERENCE FACILITY
During the first Lease Year of this Lease, Landlord shall
allow Tenant the right to use the Corporate Xxxxx Conference Facility free of
charge. Such use by Tenant must be reasonable in the number of times such
facility is utilized by Tenant and is expressly subject to the availability of
the facility. In addition, Tenant must comply with all rules and regulations
regarding such facility. After the expiration of the first Lease Year, Tenant's
use of the facility shall thereafter be at the customary cost charged by
Landlord for such use. This Section of the Lease shall not apply with respect to
the RFO Premises in the event that Tenant exercises its right to lease RFO
Premises as provided in Section 38 hereof.
38. RIGHT OF FIRST OFFER
Tenant shall have a right of first offer to lease all of that certain
space located on the first floor of the Building, immediately adjacent and
contiguous to the Premises, and more particularly shown on Exhibit D attached
hereto (the "RFO Premises"), from and after the Commencement Date for the term
of this Lease, if and when the space becomes available, and on the condition
that Tenant is not in default of its covenants and obligations under this Lease
at the time the Landlord is required to give Landlord's Notice (described below)
nor as of the Commencment Date for the RFO Premises. Any lease of the RFO
Premises shall be upon the terms and conditions hereafter set forth:
(a) EXERCISE OF RIGHT TO LEASE RFO PREMISES. Landlord shall
give Tenant written notice ("Landlord's Notice") at the time that Landlord
intends to offer the RFO Premises for lease. Landlord's Notice shall set forth
the Total Usable Area of the new Premises (including the RFO Premises), Tenant's
new Pro Rata Share (including the Premises and RFO Premises based on the formula
set forth in Section 3(d) of this Lease), the Base Rent applicable to such new
Premises (including the RFO Premises, based on the formula set forth in Section
3(a) of this Lease) and the Commencement Date for the RFO Premises. The only
improvements to the RFO Premises which Landlord agrees to make is the Building
Standard Work set forth in Exhibit B hereto. The cost of those improvements
shall be allocated between Landlord and Tenant as follows: Landlord's share of
the costs shall be a fraction, the numerator of which is the number of
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months remaining in the initial term of this Lease at the time of Landlord's
Notice, and the denominator of which is the total number of months in the
initial term of this Lease, or, if Landlord's Notice is given during the
extension term, a fraction, the numerator of which is the number of months
remaining in the extension term and the denominator of which is the total number
of months in the extension term; and Tenant's share of the costs shall be the
balance; provided, however, if Landlord's Notice is given during the initial
term of the Lease, and Tenant, within thirty (30) business days after receipt of
Landlord's Notice, exercises its right to extend this Lease with respect to both
the Premises and the RFO Premises, as provided in Section 36 hereof, then
Landlord shall be responsible for the entire cost of said improvements to the
RFO Premises. Tenant shall have the right, exercisable upon written notice given
to Landlord within five (5)business days after the giving of Landlord's Notice,
to lease the RFO Premises. If Tenant fails to give such notice in the time
period set forth herein, Tenant shall have no further right to lease the RFO
Premises pursuant to this Section 38. Upon the timely giving of such notice,
Landlord shall lease the RFO Premises to Tenant, upon all of the terms and
conditions of this Lease except as hereinafter set forth.
(b) LEASE PROVISIONS APPLYING TO RFO PREMISES. Except as
otherwise provided herein, the leasing to Tenant of the RFO Premises shall be
upon all of the terms and conditions of this Lease.
(c) EXECUTION OF LEASE AMENDMENTS. Notwithstanding the fact
that Tenant's exercise of the above--described right of first offer to lease RFO
Premises shall be self--executing, the parties hereby agree promptly to execute
a lease amendment reflecting the addition of the RFO Premises, the adjustments
in Base Rent and Additional Rent as well as any modifications of the provisions
of the Lease as shall be necessary to properly include the RFO Premises within
the terms and conditions of this Lease.
39. MOVING ALLOWANCE
Landlord agrees to provide Tenant with a moving allowance (the
"Moving Allowance") in an amount not to exceed FIVE THOUSAND AND 00/100 DOLLARS
($5,000.00) which amount shall equal Tenant's actual van line carrier moving
expenses incurred in connection with Tenant's move to the Premises as evidenced
by actual invoices from such carrier, copies of which are to be furnished to
Landlord. The Moving Allowance shall be credited against the second monthly
installment of Base Rent to be paid by Tenant after the expiration of the period
where Landlord waives Base Rent set forth in Section 3(i) herein. This section
of the Lease shall not apply with respect to moving expenses incurred in the
event that Tenant exercises its right to lease RFO Premises as provided in
Section 38 hereof.
40. EXHIBITS
35
Exhibits A through D are attached hereto and are made a part
of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have respectively
signed and sealed this Lease as of the day and year first above written.
WITNESS: CORPORATE XXXXX ASSOCIATES
/s/ By: /s/
----------------------------------- -------------------------------
Landlord
Its GENERAL PARTNER
WITNESS: XXXXXX X. BLACK CORPORATION
/s/ By: /s/
----------------------------------- -------------------------------
Landlord
Its Treasurer and Secretary
-------------------------------
36
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
ALL THAT TRACT OR PARCEL OF LAND, situate in part of Town of Brighton, County of
Monroe, State of New York more particularly described as follows:
Beginning at a point, said point being the following courses and distances from
the intersection of the south line of Interstate 390 and the west right-of-way
line of East Xxxxxxxxx Road; N 36(degree)-31'--ll" W A distance of 88/04 feet; N
74(degree)-55'-26" W a distance of 284.81 feet; N 58(DEGREE)- 44'-36" W a
distance of 56.64 feet to the point and place of beginning.
Thence, 1-S 15(degree)-04'-34" W a distance of 317.18 feet to a point,
Thence, 2-S 87(degree)-18'--27" W a distance of 299.17 feet to a point of
curvature,
Thence, 3-Northwesterly along a curve having a radius of 210.00 a distance of
166.77 feet to a point of tangency,
Thence, 4-N 47(degree)-11'-33" W a distance of 265.96 feet to a point,
Thence, 5-S 87(degree)-l8'-27" E a distance of 116.25 feet to a point,
Thence, 6-N 02(degree)-41'--33" W a distance of 180.00 feet to a point,
Thence, 7-N 87(degree)-18'--27" E a distance of 422.14 feet to a point in THE
south line of Interstate 390,
Thence, 8-S 58(degree)-44'-36" E a distance of 233.60 feet to a point and PLACE
of beginning,
Intending to describe a parcel of land containing 5.42 acres and being Lot B of
the subdivision map of Corporate Xxxxx filed in the Monroe County Clerk's Office
in Liber 236 of Maps, page 12.
37
EXHIBIT "A"
(cont.)
FLOOR PLANS
00
Xxxxx Xxxxx Xxxx
Xxxx. 000
Corporate Xxxxx
00
Xxxxxx Xxxxx Xxxx
Xxxx. 000
Corporate Xxxxx
00
XXXXXXX "X" (XXXX.)
SITE PLAN
CORPORATE XXXXX OF BRIGHTON
41
EXHIBIT "B"
BUILDING STANDARD WORK
The items detailed herein are set forth for the purpose of serving as the
minimum standards for the Leasehold Improvements (as defined in the Lease) and
the ratios and square footage allocations set forth herein are not intended to
be binding but instead are to serve as guidelines.
A. LOBBY WALLS AND CORE WALLS
1. FINISH
The exposed surfaces are to receive a wall covering finish.
The atrium lobby will have 9 skylights, oak railings and granite floors or
equal. The second and third floor lobbies will have laminated glass set in solid
oak frames.
2. DOORS-FRAMES
Solid core doors with oak veneer, 3' x 8' x 1 3/4" in
dimension, will be installed in oak frames, except building stairwell doors
which shall be installed in hollow metal frames.
3. HARDWARE
Each swing door shall be provided with a minimum of one and
one-half pairs of butts, a latch set, or lockset where required. A surface
mounted door closer will be provided at such additional locations as may be
required by the local code. All hardware shall be Schlage (or equal).
4. ELEVATORS
Both elevators will have brushed bronze trim and doors with a
natural oak formica interior, bronzed mirror ceilings and recessed lights. One
elevator will have a service door with a baked enamel finish and trim facing the
west side entrance way to the Building. Ceilings in front of the elevators on
all three floors will be mirrored bronze material.
B. PARTITIONS AND DOORS
1. PARTITIONS SEPARATING PREMISES (DEMISING & CORRIDOR)
a. PARTITIONS
Partitions separating premises shall be constructed of metal
studs with one layer of 1/2" gypsum board on each side and one
layer of 1/2" sound board on one side, with each layer of the
gypsum board extending to the underside of the floor
construction above. The wall cavity will be filled with 3 1/2"
fiberglass sound batt insulation.
b. TENANT ENTRANCE DOOR
All doors shall have oak door frames and casings. The 8'0"
height doors shall be solid core oak and shall be provided
with two pairs of butts, a lockset, and a doorstop where
required. A door closer will be provided for the principal
entrance to the premises and at such additional locations as
may be required by the local code. The locksets provided at
the entrance will be master keyed to building standard and
shall
42
be Schlage or equal. Additionally, Landlord shall install a
2'6" x 8'0" glass sidelite with laminated safety glass next to
the entrance door.
c. SECONDARY EGRESS DOOR
Secondary egress doors shall be provided as required by the
local code. The 8'0" height doors shall be solid core oak
doors set in oak frames. Hardware shall be Schlage or equal.
2. PARTITIONS SEPARATING OFFICE WITHIN PREMISES
a. PARTITIONS
These partitions shall be constructed of metal studs with one
layer of 1/2" gypsum board on each side extending to the
ceiling.
b. SOUND REDUCTION
Landlord can, at Tenant's expense, install sound reduction
material consisting of one layer of 1/2" sound deadening board
and, in the wall cavity, 3 1/2" fiberglass sound batt
insulation.
c. DOORS WITHIN PREMISES
Swing doors shall have solid oak door frames. Each 8'0" height
door shall be solid core with oak veneer and shall be provided
with one and one-half pairs of butts, a latch set, and a
doorstop where required. All hardware shall be Schlage or
equal. The number of doors shall not exceed one door for each
250 square feet of total usable area.
3. STANDARD QUANTITY OF PARTITIONS
Total lineal footage of partitions shall not exceed one lineal
foot for each 15 square feet of Total Usable Area.
4. FLOORING AND WALL BASE
a. Tenant shall choose a carpet and/or a resilient vinyl tile
(where required) from Landlord's selection. The Landlord shall, at his expense,
install the selected carpet and/or resilient vinyl tile where designated by
Tenant's contract documents.
b. WALL BASE VINYL
The Landlord shall install a 4" vinyl wall base where
designated by the Tenant's contract documents. The Landlord's
architect shall assist, select and/or approve material.
Provide vinyl wall base in "roll" quantity.
43
C. CEILINGS
1. Mechanically suspended acoustic tile ceilings shall be mineral fiber,
Class "A" (non--combustible), 2' by 2' fissure--pattern, sound
absorbent.
2. The Building will be fully sprinklered and sprinkler heads will be
flush mounted in all finished office spaces.
D. LIGHTING
1. Recessed fluorescent lighting fixtures with parabolic lens (2' x 4')
with three (3) 34 watt rapid start tubes shall be installed by
Landlord. One such fixture shall be installed per 100 square feet
(average) of Total Usable Area. Where required by design conditions,
smaller recessed fluorescent fixtures may be substituted at Landlord's
option.
2. Miscellaneous fixtures, fluorescent and/or incandescent, shall be
installed in mechanical spaces, toilet areas, stairwell and utility
areas to conform to building operation requirements and existing
codes.
3. Wall switches of the single pole, quiet type, to the extent of one
switch for each ten lighting fixtures averaged, shall be installed by
the Landlord. Each private office shall have one wall switch.
E. ELECTRICAL AND TELEPHONE
1. Duplex wall, base and floor receptacles (llOv non-dedicated) shall be
installed by the Landlord. The Landlord will provide such receptacles
at a ratio not to exceed one (1) per 125 square feet of Total Usable
Area. Floor mounted receptacles shall not exceed 10% of the total
number of allowed receptacles.
2. Power wiring circuits, including terminal device (277 Volt, 3 Phase,
grounded) shall be made available to Tenant as may be agreed between
the parties in connection with Tenant equipment at the rate of one per
6,000 square feet of Total Usable Area.
3. Installation and expense of the wiring by the telephone company is the
responsibility of the Tenant and shall conform to the National
Electrical Code (Article 800, Paragraph 3, Section D).
F. PLUMBING
Wet stacks are available on the typical office floor containing cold and
hot water, waste and vents. Tenant equipment can be connected at these points by
the Landlord at the Tenant's expense. This would encompass such items as private
restrooms, wet bars, showers and kitchens.
G. PAINTING AND WALL COVERING
1. All wall surfaces shall receive a finish coat of building standard
flat oil off--white paint over one prime coat, or equal. Oak doors,
frames and casings shall have a natural finish of one coat of sealer
and one coat of varnish. Metal frames shall be finish coated with two
coats of semi--gloss enamel.
44
2. Where the Tenant desires wall covering, the Landlord shall initially
prepare walls to receive wall covering as designated by the Tenant.
Such wall covering shall be furnished and installed at the Tenant's
expense unless otherwise noted as agreed to between the respective
parties. Wall covering shall be subject to the Landlord's approval
prior to installation.
3. Public areas, corridors and lobbies on multi--tenant floors shall be
finished in accordance with the Landlord's Architect's finish
schedule.
H. SUN--CONTROl
The Landlord shall install building standard metal horizontal blinds to be
Levelor or equal.
I. MECHANICAL
The Landlord shall install supply air ceiling diffusers to the extent of
one (1) diffuser per every 200 square feet of Total Usable Area.
J. HEATING AND AIR CONDITIONING SYSTEMS
1. The heating and air conditioning systems shall be designed to maintain
interior temperatures for the comfortable use and occupancy of the
space during business hours.
2. Heating and cooling provided by decentralized electrohydronic water
source heat pumps with one unit per 1500 square feet (average) of
Total Usable Area.
3. The heat pump units are individually thermostatically controlled and
are operable at any time of the day.
4. Any supplemental or additional heating and thermostatic and/or air
conditioning systems required by the Tenant shall be at the expense of
the Tenant and only with the approval of the Landlord.
K. SECURITY SYSTEM
1. A security subsystem will be installed which shall include one
sub--zone control panel (key pad) located at Tenant's primary entrance
and two passive infrared beams (heat sensors) fire horn and smoke
alarm.
2. If Tenant desires, and with Landlord's approval, additional sub-zone
control panels, passive infrared beams and other security features may
be installed in Tenant's suite at Tenant's sole expense.
L. OTHER
Any and all other materials in excess of either the quantity or quality of
Landlord's "Building Standard" shall be installed by Landlord, subject to its
prior approval, at Tenant's expense.
45
EXHIBIT "C"
CLEANING SCHEDULE
NIGHTLY - GENERAL:
1. Empty ashtrays and pick up paper.
2. Clean all drinking fountains.
3. High traffic carpeted areas vacuum cleaned.
4. Floors, other than carpet, swept.
5. Empty waste baskets and dust furniture.
6. Clean floors, main lobby and public corridor.
7. Freshen all public corridor and lobby sand urns.
8. Clean interior of all elevator cabs including floor.
9. Clean exterior of main lobby hatch doors (elevators).
10. Clean main lobby doors.
11. Sweep sidewalks.
NIGHTLY -- LAVATORIES:
1. All flooring washed nightly.
2. All mirrors, powder shelves, bright work, etc., including
flushometers, piping and toilet seat hinges washed and polished
nightly.
3. All basins, bowls, urinals and toilet lids (both sides) washed
nightly.
4. All partitions, tile walls, dispensers and receptacles dusted
nightly.
5. Paper towel and sanitary disposal receptacles emptied and cleaned
nightly.
6. Dispensers filled with supplies.
WEEKLY:
1. All carpeted areas vacuum cleaned.
AT REGULAR INTERVALS:
1. Wash all toilet walls.
2. Dust A/C wall and ceiling grills, wall hangings.
3. Clean exterior windows, inside and out.
46
EXHIBIT "D"
FLOOR PLAN
RIGHT OF FIRST OFFER
47
[GRAPHIC OMITTED]
LEASE AMENDMENT
LEASE AMENDMENT, dated March 11, 1993, (the "Amendment) by and between
CORPORATE XXXXX ASSOCIATES (the "Landlord") and XXXXXX X. BLACK
CORPORATION ("Tenant").
WITNESSETH
WHEREAS, the Tenant leased approximately 26,080 square feet located on
the first and second floors (the "Premises") of the building known as 000
Xxxxxxxxx Xxxxx xx Xxxxxxxx, Xxxx of Brighton, County of Monroe, State of New
York pursuant to a lease dated April 12, 1991, (the "Lease"); and
WHEREAS, Landlord and Tenant now mutually desire to amend the Lease as
herein set forth and are executing and delivering this Amendment for that
purpose.
NOW, THEREFORE, the parties hereto, in consideration of the covenants,
agreements and terms, provisions, stipulations and conditions therein,
contained, hereby amend the Lease in the following respects, and only in the
following respects.
1. Section 3 (c) REAL PROPERTY TAXES of the Lease is hereby modified and
amended as follows:
"Tenant shall pay to Landlord each year, as Additional Rent, a sum
equal to the amount by which the real estate taxes and other
assessments (collectively the "Real Property Taxes" as below
defined) allocable to and levied against the Premises during such
year exceed the sum of FORTY THREE THOUSAND FIVE HUNDRED AND 00/100
DOLLARS ($43,500.00)..."
2. DEFINITIONS All terms defined in the Lease and used but not defined
herein shall have the meaning set forth in the Lease.
3. APPLICABILITY OF AMENDMENT As amended hereby, the Lease shall continue
unamended and in full force and effect. In the event of a conflict between the
provisions of this Amendment and the Lease, the provisions of this Amendment
shall control.
--2--
IN WITNESS WHEREOF, the Landlord and the Tenant have respectively signed
this Amendment as of the day and year first above written.
Witness XXXXXX X. BLACK CORPORATION
_______________________ By:______________________________
Its:_____________________________
Witness CORPORATE XXXXX ASSOCIATES
_______________________ By:______________________________
Xxxxxxx X. Xxxxxxx
Its: Partner
SECOND LEASE AMENDMENT
SECOND LEASE AMENDMENT, dated January 1, 1996, (the "Second Amendment") by
and between CORPORATE XXXXX ASSOCIATES, LLC (the "Landlord") and XXXXXX X. BLACK
CORPORATION, (the "Tenant").
WITNESSETH
WHEREAS, the Tenant leased approximately 26,080 square feet located on the
first and second floors (the "Premises") of the building known as 000 Xxxxxxxxx
Xxxxx xx Xxxxxxxx, Xxxx of Brighton, County of Monroe, State of New York
pursuant to a tease dated April 12, 1991 and subsequent Lease Amendment dated
March 11, 1993 (collectively the "Lease");
WHEREAS, Tenant shall hire and lease from Landlord an additional 1,560
square feet of Total Usable Area (the "Expansion Premises") located on the first
floor of the Building whereby revising the total leased premises to 27,640
square feet. Further, Landlord shall amend the term of the original lease to
expire December 31, 1995 and simultaneously enter into a new lease term for
seven (7) years, six (6) months commencing January 1,1996.
WHEREAS, Landlord and Tenant now mutually desire to amend the Lease as
herein set forth and are executing and delivering this Amendment for that
purpose.
NOW, THEREFORE, the parties hereto, in consideration of the covenants,
agreements and terms, provisions, stipulations and conditions therein contained,
hereby amend the Lease in the following respects, and only in the following
respects.
1. The "Witnesseth" section of the Lease is hereby amended in relevant
part only as follows:
"Landlord hereby leases unto Tenant and Tenant hereby accepts from
Landlord, that certain space consisting of approximately 27,640
square feet of Total Usable Area, located on the first and second
floors (the "Premises") of the building (the "Building"), Suite 150
and 200, known as Building 000 Xxxxxxxxx Xxxxx xx Xxxxxxxx, Xxxx Of
Brighton ..."
2. Section 1(a) Date of commencement of the Lease is amended where
applicable to reflect the term for this Amendment to read as follows:
"...the term of this Amendment shall commence on January 1,1996 (the
"commencement Date"), however, Tenant shall not be required to remit
monthly Base Rent or Additional Rent for the Expansion Area
comprised of approximately 1,560 square feet of Total Usable Area
until the date on which Landlord has substantially completed with
respect to the Expansion Premises, all Building Standard Work
applicable to that area, subject only to punchlist items and
non-building standard work, if any to be performed by Tenant. The
term as so commenced shall end at midnight on June 30, 2003.
Landlord shall notify Tenant, in writing, at least two (2) weeks
prior to that date on which substantial completion shall occur of
the Expansion Premises and Tenant shall begin remitting monthly Base
Rent payments as detailed in Section 4 herein."
3. Section 1(b) is hereby modified in relevant part only to reflect that
the required plans and specifications shall be submitted to the Landlord in a
timely manner, but no later than March 15, 1996.
4. The Annual Base Rent as detailed in Section 3(a) Base Rent is hereby
deleted in relevant part only and replaced with the following Base Rent
pertinent to this Amendment:
Period Annual Monthly
------ ------ -------
1/1/96 - 12/31/96* $ 37,429.16
1/1/97 - 12/31/97 $457,441.92 $ 38,120.16
1/1/98 - 12/31/98 $465,733.92 $ 38,811.16
1/1/99 - 12/31/99 $476,790.00 $ 39,732.50
1/1/00 - 12/31/00 $487,845.96 $ 40,653.83
1/1/01 - 12/31/01 $498,901.92 $ 41,575.16
1/1/02 - 12/31/02 $509,958.00 $ 42,496.50
1/1/03 - 6/30/03 --- $ 43,417.83
* Landlord and Tenant agree that Landlord shall xxxxx payment of the
Monthly Base Rent due for the Expansion Premises only until Landlord has
substantially completed those leasehold improvements at which time Tenant shall
begin remitting the applicable monthly Base Rent payments. Tenant shall remit
monthly Base Rent payments for the Existing Premises commencing January 1, 1996.
5. Section 3(b) Annual Increase In Base Rent is deleted in its entirety.
6. Section 3(c) Real Property Taxes is hereby amended in relevant part
only adjusting Tenant's Base Expense Stop to $69,100.00.
7. Section 3(d) Tenant's Share of Real Property Taxes is hereby amended to
adjust Tenant's Pro-Rata Share to 46.067% to reflect the Expansion Premises.
8. Section 3(i) Waiver of Base Rent is hereby deleted in its entirety.
9. The first paragraph of Section 4 of the Lease Leasehold Improvements is
hereby deleted and replaced with the following:
"Except as Otherwise provided herein, Landlord covenants and agrees
to provide certain leasehold improvements in the Expansion Premises
only, at Tenant's expense, in accordance with the final Plans and
Specifications and finish schedules (collectively the "Leasehold
Improvements"). Landlord agrees to provide Tenant an allowance
("Landlord's Allowance") for the Leasehold Improvements (except as
otherwise set forth herein) which Landlord's Allowance shall not
exceed $20.00 per square feet of the Expansion Premises or
$31,200.00. The quality of all Leasehold Improvements shall equal or
exceed the standards set forth as Building Standard Work on Exhibit
"B" of the Lease... In the event that the cost of the Leasehold
Improvements does not equal the amount of Landlord's Allowance set
forth herein, Tenant may use any remaining portion of the Allowance
toward leasehold improvements within the Existing Premises or apply
the credit toward monthly Base Rent due the Landlord. Tenant shall
notify Landlord, in writing, as to how the credit, if any, shall be
applied. If the total cost of the Leasehold Improvements exceeds
Landlord's Allowance as above stated, Tenant shall, upon receipt of
Landlord's notice and invoice, reimburse Landlord in full for the
excess cost differential within thirty (30) days of receipt thereof.
With respect to any Leasehold Improvement requested by Tenant to be
performed on the second floor of the Premises, Landlord shall
perform such work at Tenant's sole cost and expense, however, any
excess credit to the Expansion Premises may be applied to Landlord's
cost therein."
10. Section 5(c) of the Lease Cleaning is hereby amended in relevant part
only to change the estimate from "$.80" per square foot of Total Usable Area to
"$.85" per square foot of Total Usable Area.
11. Section 5(f) of the Lease Electric Energy is hereby amended in
relevant
part only to change the estimate from "$1.00" per square foot of Total Usable
Area to "$2.25" per square foot of Total Usable Area based on Tenant's history
of actual consumption.
12. Section 5(k) of the Lease lnterruptions in Service is modified as
follows:
"...or by reason of operation of law, or other causes beyond the
reasonable control of Landlord, however, Landlord shall exercise
reasonable diligence in causing the services to be restored. No such
interruption of service..."
13. The second paragraph of Section 6 of the Lease Waiver of Certain
Claims is hereby deleted in its entirety and replaced with the following:
"If any property damage results from any act or neglect of Tenant or
Landlord, either party may, at its option, after written notice to
the other (except in the case of an emergency where no notice is
necessary), repair such damage and the other party shall thereupon
pay to the other so much of the total cost of such repair or
replacement as it is not covered or paid to the other under their
respective insurance policies, including the amount of any
deductible, as well as so much of the total cost of such repair as
exceeds any insurance proceeds either party receives in respect of
such damage".
14. Section 8 of the Lease Holding Over is hereby deleted in its entirety
and replaced with the following:
"If Tenant fails to vacate the Premises at the expiration of this
Lease or any extension period thereof, if extended, then Tenant
shall pay Landlord Base Rent at double the monthly rate specified
herein for the time Tenant thus remains in possession. The
provisions of this Section do not exclude Landlord's rights of
re-entry or any other right or remedy of Landlord hereunder".
15. The first paragraph of Section 12 Of the tease Repairs is hereby
modified as follows:
"...shall keep in repair and maintain the exterior of the
Building and its structural components, such as the electrical,
heating...."
The following language is hereby added to the end of the last
paragraph of Section 12 Of the Lease Repairs as follows:
..."The landlord shall be responsible for complying with all laws to
the extent they relate to structural components including those
items as detailed in this Section 12."
16. The third line of Section 13(a) of the Lease Destruction of Premises
is hereby modified as follows:
"damage by fire or other causes, the damage shall be repaired
promptly..."
17. The second paragraph only of Section 16(e) of the Lease Damages and
Acceleration is hereby deleted in its entirety.
18. Section 36 Extension of Term shall remain as stated therein.
19. Sections 37, 38 and 39 Use of Conference Facility. Right of First
Offer and Moving Allowances are hereby deleted in their entirety.
20. Definitions All terms defined in the tease and used but not defined
have the meaning set forth in the Lease.
21. Applicability of Amendment As amended hereby, the Lease shall continue
unamended and in full force and effect. In the event of a conflict between the
provisions of this Second Amendment and the Lease, the provisions of this
Amendment shall control.
IN WITNESS WHEREOF, the Landlord and the Tenant have respectively signed
this Amendment as of the day and year first above written.
XXXXXX X. BLACK CORPORATION
Witness________________ By:______________________________
Its:_____________________________
CORPORATE XXXXX ASSOCIATES, LLC
Witness________________ By:______________________________
Its:_____________________________
THIRD LEASE AMENDMENT
THIRD LEASE AMENDMENT, dated January 6,1999, (the "Third Amendment") by
and between CORPORATE XXXXX ASSOCIATES, LLC (the "Landlord") and XXXXXX X. BLACK
CORPORATION (the "Tenant").
WITNESSETH
WHEREAS, Tenant leased approximately 27,640 square feet located on the
first and second floors (the "Premises") of the building known as 000 Xxxxxxxxx
Xxxxx xx Xxxxxxxx, Xxxx of Brighton, County of Monroe, State Of New York
pursuant to a Lease dated April 12, 1991 and subsequent Lease Amendments dated
March 11, 1993 and January 1,1996, (collectively the "Lease");
WHEREAS, effective upon the termination of the Sublease Agreement between
Tenant and Xxxxx Capital Management, Inc., Tenant shall hire and direct lease
from Landlord an additional 3,022 square feet of Total Usable Area (the "Second
Expansion Premises") located on the first floor of the Building whereby revising
the total leased premises to 30,662 square feet.
WHEREAS, Landlord and Tenant now mutually desire to amend the Lease as
herein set forth and are executing and delivering this Amendment for that
purpose.
NOW, THEREFORE, the parties hereto, in consideration of the covenants,
agreements and terms, provisions, stipulations and conditions therein contained,
hereby amend the Lease in the following respects, and only in the following
respects.
1. The "Witnesseth" section of the Lease is hereby amended in relevant
part only as follows:
"Landlord hereby leases unto Tenant and Tenant hereby accepts from
Landlord that certain space consisting of approximately 30,662 square feet of
Total Useable Area, located on the first and second floors (the "Premises") of
the Building (the "Building"), Suite 150, 160 and 200, known as Building 000
Xxxxxxxxx Xxxxx xx Xxxxxxxx, Xxxx of Brighton..."
2. Section 1(a) Date of Commencement of the Lease is deleted in its
entirety and replaced with the following:
"...the term of this Third Amendment shall commence on February 1, 1999
(the "Second Expansion Premises Commencement Date"). The term as so commenced
shall end at midnight on June 30, 2003."
3. Sections 1(b), 1(c), 1(d) and 1(e) are hereby deleted for purposes of
this Third Amendment.
4. The Annual Base Rent as detailed in section 3(a) Base Rent is hereby
deleted in relevant part only and replaced with the following Base Rent
pertinent to this Third Amendment:
Period Annually Monthly
------ -------- -------
2/1/99 - 12/31/99 ----- $44,076.63
1/1/00 - 12/31/00 $541,184.30 $45,098.70
1/1/01 - 12/31/01 $553,449.10 $46,120.76
1/1/02 - 12/31/02 $565,713.90 $47,142.83
1/1/03 - 6/30/03 ----- $48,164.90
5. Section 3(c) Real Property Taxes is hereby amended in relevant part
only adjusting Tenant's Base Expense Stop to $74,388.50.
6. Section 3(d) Tenant's Share Of Real Property Taxes is hereby amended to
adjust Tenant's Pro-Rata Share to 51.107%.
7. For purposes of this Third Lease Amendment, the first paragraph of
Section 4 Leasehold lmprovements is hereby deleted in its entirety and replaced
with the following:
"Tenant shall accept the Second Expansion Premises in its "as is"
condition".
8. Section 5(c) Cleaning of the Lease is hereby modified in relevant part
to reflect $.95 per square foot, plus any additional services requested by
Tenant over and above the Landlord's Cleaning Schedule attached as Exhibit "C"
of the Lease.
9. Further, by virtue Of Tenant's execution of this Third Lease Amendment,
Tenant hereby confirms to Landlord that Tenant is exercising its option to
extend the term of the Temporary Lease dated July 31, 1998, for Tenant's leased
Premises consisting of 5,386 square feet of space located in Building 175
Corporate Xxxxx for one (1) additional six (6) month term, thus, the term for
said Temporary Space shall expire July 31, 1999.
10. Definitions All terms defined in the Lease and used but not defined
herein shall have the meaning set forth in the Lease.
2
11. Applicability of Amendment As amended hereby, the Lease shall continue
unamended and in full force and effect. In the event of a conflict between the
provisions of this Third Amendment and the Lease, the provisions of this
Amendment shall control.
IN WITNESS WHEREOF, the Landlord and the Tenant have respectively signed
this Amendment as of the day and year first above written.
XXXXXX X. BLACK CORPORATION
Witness _______________________ By: _______________________________
Its: _______________________________
CORPORATE XXXXX ASSOCIATES, LLC
Witness _______________________ By: _______________________________
Xxxxxxx X. Xxxxxxx
Its: Member
3
V-C
FOURTH LEASE AMENDMENT
FOURTH LEASE AMENDMENT, dated July 27, 1999, (the "Fourth Amendment") by
and between CORPORATE XXXXX ASSOCIATES, LLC (the "Landlord") and XXXXXX X. BLACK
CORPORATION (the "Tenant").
WITNESSETH
WHEREAS, Tenant leased approximately 30,662 square feet located on the
first and second floors (the "Premises") of the building known as 000 Xxxxxxxxx
Xxxxx xx Xxxxxxxx, Xxxx of Brighton, County of Monroe, State of New York
pursuant to a Lease dated April 12, 1991 and subsequent Lease Amendment dated
March 11, 1993, January 1, 1996, and January 6, 1999 (collectively the "Lease");
WHEREAS, Tenant shall hire and lease from Landlord an additional 23,033
square feet of Total Rentable Area (the "Third Expansion Premises") located on
the first and second floors of the Building known as 60 Corporate Xxxxx, hereby
revising the total combined leased premises in both Buildings 60 and 135
Corporate Xxxxx to 53,695 square feet.
WHEREAS, Landlord and Tenant now mutually desire to amend the Lease as
herein set forth and are executing and delivering this Amendment for that
purpose. The terms and conditions contained herein shall be applicable to
Tenant's Leased Premises at 60 Corporate Xxxxx in addition to those pertaining
to Tenants Leased Premises in 135 Corporate Xxxxx.
NOW, THEREFORE, the parties hereto, in consideration of the covenant,
agreements and terms, provisions, stipulations and conditions therein contained,
hereby amend the Lease in the following respects, and only in the following
respects.
1. The "Witnesseth" section of the Lease is hereby amended in relevant
part only as follows:
"In addition to Tenant's leased Premises in Building 135 Corporate
Xxxxx, Landlord hereby leases unto Tenant and Tenant hereby accepts
from Landlord that certain space consisting of approximately 23,033
square feet of Total Rentable Area, located on the first and second
floors (the "Premises) of the Building (the "Building") Suite 200
known as Building 00 Xxxxxxxxx Xxxxx xx Xxxxxxxx, Xxxx Of
Brighton..."
2. Section 1(a) Date of Commencement of the Lease is hereby modified to
include the following:
"The term of this Fourth Amendment shall commence on August 1, 1999
(the "Third Expansion Premises Commencement Date"). The term as so
commenced shall end at midnight on June 30, 2003."
3. Commencing December 1, 1999, and continuing each month thereafter, the
Annual Base Rent as outlined in section 3(a) Base Rent is hereby modified as
follows to include the Base Rent due for Tenant's leased Premises at Building 60
Corporate Xxxxx:
Period Annually Monthly
------ -------- -------
12/1/99 - 6/30/01 $368,528.04 $30,710.67
7/1/01 - 6/30/03 $380,044.56 $31,670.38
4. Section 3(c) Real Property Taxes is hereby amended in relevant part to
reflect Tenant's Base Expense Stop for Building 60 shall be the 2000 Town &
County Taxes and the 1999/2000 School Taxes applicable to the Building.
5. Section 3(d) Tenant's Share of Real Property Taxes is hereby amended to
reflect Tenant's Pro-Rata Share of Building 60 to be 38.4%.
6. For purposes of this Fourth Lease Amendment, the first paragraph of
Section 4 Leasehold Improvements is hereby defined as follows:
"Tenant shall accept the Third Expansion Premises in its "as is"
condition, however, Landlord shall, at its expense, remove all
existing carpeting in the first floor reception area and on the
entire second floor.
Any and all work as requested by Tenant shall be performed by
Landlord at Tenant's sole cost and expense. Landlord and Tenant
hereby agree that any and all such unit pricing relative to the
Third Expansion Premises Leasehold Improvements provided by Landlord
to Tenant shall be adjusted to reflect a 15% construction management
fee instead of the customary 20% fee.
Tenant shall have the option to amortize any and all leasehold
improvement costs relative to work performed at
Building 60 over the term of this Fourth Lease Amendment at an
interest rate of 10% per annum. Should Tenant elect to exercise this
option, Landlord and Tenant shall enter into an agreement outlining
applicable monthly amortization costs due the Landlord."
7. Commencing October 1, 1999, Section 5(c) Cleaning of the Lease is
hereby modified in relevant part to reflect $1.00 per square foot of Total
Rentable Area for cleaning Tenant's leased Premise in 60 Corporate Xxxxx in
accordance Landlord's Cleaning Schedule attached as Exhibit "C" of the Lease.
8. Commencing October 1,1999, all applicable terms and conditions
pertaining to Section 5(f) Electric Energy of the Lease are hereby deemed to be
applicable to Tenant's leased Premises in 60 Corporate Xxxxx.
9. Section 40 Exclusive Right to Lease is hereby added to and shall become
part of the Lease as herein provided:
"Tenant warrants that, in the event its firm is listed on a stock
exchange as a publicly traded company prior to October 31, 1999,
commencing November 1, 1999, Tenant shall lease from Landlord
approximately 10,000 square feet of Total Rentable Area located on
the north side of the first floor of Building 60 as more
particularly shown on Exhibit "A-I" attached hereto. All terms and
conditions for this additional space shall be those same terms and
conditions contained herein. Landlord and Tenant hereby agree to
enter into an agreement outlining applicable terms and conditions
relative to this provision."
10. Section 41 Right Of First Offer is hereby added to and shall become
part of this Fourth Lease Amendment as follows:
Any time prior to June 30, 2001, Tenant shall have a right of first
offer to lease any remaining space located on the first floor of the
Building, as more particularly shown on Exhibit "A-I" attached
hereto (the "RFO Premises") upon the terms and conditions hereafter
set forth:
(a) Exercise of Right to Lease RFO Premises. Landlord shall give
Tenant written notice ("Landlord's Notice", more particularly
described below) that Landlord intends to offer the RFO Premises for
lease.
(b) Landlord's Notice. Landlord's Notice shall set forth the Base
Rent applicable to such RF0 Premises, Tenant's new Pro Rata Share
(including the Premises and RFO Premises based on the formula set
forth in Section 3(d) of the Lease, the Commencement Date for the
RFO Premises and the Expiration Date for the RFO Premises. Tenant
shall have the right, exercisable upon written notice given to
Landlord within ten (10) days after the giving of Landlord's Notice,
to lease the RFO Premises. If Tenant fails to give such notice in
the time period set forth herein, Tenant shall have no further right
to lease the RFO Premises pursuant to this Section 41. Upon the
timely giving of such notice, Landlord shall lease the RFO Premises
upon all of the terms and conditions of this Lease except as
hereinafter set forth.
(c) Lease Provisions Applying to RFO Premises. The leasing to Tenant
of the RFO Premises shall be at the same cost per square foot and
upon all of the terms and conditions of this Lease unless stated
otherwise in Landlord's Notice and except that the RFO Premises
shall be delivered by Landlord and accepted by Tenant in its "as is"
condition.
(d) Tenant Default. lf Tenant is in default under this Lease on the
date written notice is given to Tenant by Landlord or at any time
thereafter prior to the date the RFO Premises is occupied by Tenant,
then, at Landlord's option, Tenant's rights pursuant to this Section
shall lapse and be of no further force or effect.
(e) Execution of Lease Amendments. Notwithstanding the fact that
Tenant's exercise of the above-described right of first offer to
lease RFO Premises shall be self-executing, the parties hereby agree
promptly to execute a lease amendment reflecting the addition of the
RFO Premises as well as any modifications of the provisions of the
Lease as shall be necessary to properly include the RFO Premises
within the terms and conditions of this Lease."
11. Further, by virtue of Tenant's execution of this Fourth Lease
Amendment, Tenant hereby confirms to Landlord that Tenant is exercising its
option to extend the term of the Temporary Lease dated July 31, 1998, for
Tenant's leased Premises consisting of 5,386 square feet of space located in
Building 175 Corporate Xxxxx for one (1) additional one (1) month term, thus,
the term for said Temporary Space shall expire August 31, 1999.
12. Definitions All terms defined in the Lease and used but not defined
herein shall have the meaning set forth in the Lease.
13. Applicability of Amendment As amended hereby, the Lease shall continue
unamended and in full force and effect and all terms and conditions of said
lease not specifically addressed herein shall be binding and applicable to
Tenant's leased Premises at both 60, 135 and 175 Corporate Xxxxx, as the case
may be. In the event of a conflict between the provisions of this Fourth
Amendment and the Lease, the provisions of this Amendment shall control.
IN WITNESS WHEREOF, the Landlord and the Tenant have respectively signed
this Amendment as of the day and year first above written.
XXXXXX X. BLACK CORPORATION
Witness________________ By:______________________________
Its:_____________________________
CORPORATE XXXXX ASSOCIATES, LLC
Witness________________ By:______________________________
Its:_____________________________
