STANDARD FORM OF OFFICE LEASE
The Real Estate Board of New York, Inc.
Agreement of Lease, made as of this 1st day of November 1999, between
4250 VETS HIGHWAY LLC
party of the first part, hereinafter referred to as OWNER, and
AMERICAN PORTFOLIOS FINANCIAL SERVICES, INC., a domestic corporation, with
its principal place of business at 00 Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx
party of the second part, hereinafter referred to as TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from Owner
Approximately FOUR THOUSAND TWO HUNDRED NINETY-SEVEN (4297)
RENTABLE SQUARE FEET ON THE FOURTH (4TH) FLOOR
The building known as 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxx, for the term of
FIVE (5) YEARS
(or until such term shall sooner cease and expire as hereinafter provided) to
commence on the 1st day of November, nineteen hundred and ninety-nine, and to
end on the 31st day of October, Two Thousand Four both dates inclusive, at an
annual rental rate
PURSUANT TO SCHEDULE A ANNEXED HERETO AND MADE A PART HEREOF
which Tenant agrees to pay in lawful money of the United States which shall be
legal tender in payment of all debts and dues, public and private, at the time
of payment, in equal monthly installments in advance on the first day of each
month during said term, at the office of Owner or such other place as Owner may
designate, without any set off or deduction whatsoever, except that Tenant shall
pay the first monthly installment(s) on the execution hereof (unless this lease
be a renewal).
In the event that, at the commencement of the term of this lease, or thereafter,
Tenant shall be in default in the payment of rent to Owner pursuant to the terms
of another lease with Owner or with Owner's predecessor in interest, Owner may
at Owner's option and without notice to Tenant add the amount of such arrears to
any monthly installment of rent payable hereunder and the same shall be payable
to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent:1. Tenant shall pay the rent as above and as hereinafter provided.
Occupancy: 2. Tenant shall use and occupy demised premises for
GENERAL OFFICE PURPOSES
and for no other purpose.
Tenant
Alterations: 3. Tenant shall make no changes in or to the demised premises of
any nature without Owner's prior written consent. Subject to the prior written
consent of Owner, and to the provisions of this article, Tenant at Tenant's
expense, may make alterations, installations, additions or improvements which
are non-structural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises by using
contractors or mechanics first approved by Owner. Tenant shall, before making
any alterations, additions, installations or improvements, at its expense,
obtain all permits, approvals and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of final approval
thereof and shall deliver promptly duplicates of all such permits, approvals and
certificates to Owner and Tenant agrees to carry and will cause Tenant's
contractors and sub-contractors to carry such xxxxxxx'x compensation, general
liability, personal and property damage insurance as Owner may require. If any
mechanic's lien is filed against the demised premises, or the building of which
the same forms a part, for work claimed to have been done for, or materials
furnished to, Tenant, whether or not done pursuant to this article, the same
shall be discharged by Tenant within thirty days thereafter, at Tenant's
expense, by filing the bond required by law. All fixtures and all paneling,
partitions, railings and like installations, installed in the premises at any
time, either by Tenant or by Owner in Tenant's behalf, shall, upon installation,
become the property of Owner and shall remain upon and be surrendered with the
demised premises unless Owner, by notice to Tenant no later than twenty days
prior to the date fixed as the termination of this lease, elects to relinquish
Owner's right thereto and to have them removed by Tenant, in which event the
same shall be removed from the premises by Tenant prior to the expiration of the
lease, at Tenant's expense. Nothing in this Article shall be construed to give
Owner title to or to prevent Tenant's removal of trade fixtures, moveable office
furniture and equipment, but upon removal of any such from the premises or upon
removal of other installations as may be required by Owner, Tenant shall
immediately and at its expense, repair and restore the premises to the condition
existing prior to installation and repair any damage to the demised premises or
the building due to such removal. All property permitted or required to be
removed, by Tenant at the end of the term remaining in the premises after
Tenant's removal shall be deemed abandoned and may, at the election of Owner,
either be retained as Owner's property or may be removed from the premises by
Owner, at Tenant's expense.
Maintenance and Repairs: 4. Tenant shall, throughout the term of this lease,
take good care of the demised premises and the fixtures and appurtenances
therein. Tenant shall be responsible for all damage or injury to the demised
premises or any other part of the building and the systems and equipment
thereof, whether requiring structural or nonstructural repairs caused by or
resulting from carelessness, omission, neglect or improper conduct of Tenant,
Tenant's subtenants, agents, employees, invitees or licensees, or which arise
out of any work, labor, service or equipment done for or supplied to Tenant or
any subtenant or arising out of the installation, use or operation of the
property or equipment of Tenant or any subtenant. Tenant shall also repair all
damage to the building and the demised premises caused by the moving of Tenant's
fixtures, furniture and equipment. Tenant shall promptly make, at Tenant's
expense, all repairs in and to the demised premises for which Tenant is
responsible, using only the contractor for the trade or trades in question,
selected from a list of at least two contractors per trade submitted by Owner.
Any other repairs in or to the building or the facilities and systems thereof
for which Tenant is responsible shall be performed by Owner at the Tenant's
expense. Owner shall maintain in good working order and repair the exterior and
the structural portions of the building, including the structural portions of
its demised premises, and the public portions of the building interior and the
building plumbing, electrical, heating and ventilating systems (to the extent
such systems presently exist) serving the demised premises. Tenant agrees to
give prompt notice of any defective condition in the premises for which Owner
may be responsible hereunder. There shall be no allowance to Tenant for
diminution of rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to business arising from Owner or others
making repairs, alterations, additions or improvements in or to any portion of
the building or the demised premises or in and to the fixtures, appurtenances or
equipment thereof. It is specifically agreed that Tenant shall not be entitled
to any setoff or reduction of rent by reason of any failure of Owner to comply
with the covenants of this or any other article of this Lease. Tenant agrees
that Tenant's sole remedy at law in such instance will be by way of an action
for damages for breach of contract. The provisions of this Article 4 shall not
apply in the case of fire or other casualty which are dealt with in Article 9
hereof.
Window Cleaning 5. Tenant will not clean nor require, permit, suffer or allow
any window in the demised premises to be cleaned from the outside in violation
of Section 202 of the Labor Law or any other applicable law or of the Rules of
the Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
Requirements Of Law, Fire Insurance, Floor Loads 6. Prior to the commencement of
the lease term, if Tenant is then in possession, and at all times thereafter,
Tenant, at Tenant's sole cost and expense, shall promptly comply with all
present and future laws, orders and regulations of all state, federal, municipal
and local governments, departments, commissions and boards and any direction of
any public officer pursuant to law, and all orders, rules and regulations of the
New York Board of Fire Underwriters, Insurance Services Office, or any similar
body which shall impose any violation, order or duty upon Owner or Tenant with
respect to the demised premises, whether or not arising out of Tenant's use or
manner of use thereof, (including Tenant's permitted use) or, with respect to
the building if arising out of Tenant's use or manner of use of the premises or
the building (including the use permitted under the lease). Nothing herein shall
require Tenant to make structural repairs or alterations unless Tenant has, by
its manner of use of the demised premises or method of operation therein,
violated any such laws, ordinances, orders, rules, regulations or requirements
with respect thereto. Tenant may, after securing Owner to Owner's satisfaction
against all damages, Interest, penalties and expenses, including, but not
limited to, reasonable attorney's fees, by cash deposit or by surety bond in an
amount and in a company satisfactory to Owner, contest and appeal any such laws,
ordinances, orders, rules, regulations or requirements provided same is done
with all reasonable promptness and provided such appeal shall not subject Owner
to prosecution for a criminal offense or constitute a default under any lease or
mortgage under which Owner may be obligated, or cause the demised premises or
any part thereof to be condemned or vacated. Tenant shall not do or permit any
act or thing to be done in or to the demised premises which is contrary to law,
or which will invalidate or be in conflict with public liability, fire or other
policies of insurance at any time carried by or for the benefit of Owner with
respect to the demised premises or the building of which the demised premises
form a part, or which shall or might subject Owner to any liability or
responsibility to any person or for property damage. Tenant shall not keep
anything in the demised premises except as now or hereafter permitted by the
Fire Department, Board of Fire Underwriters, Fire Insurance Rating Organization
or other authority having jurisdiction, and then only in such manner and such
quantity so as not to increase the rate for fire insurance applicable to the
building, nor use the premises in a manner which will increase the insurance
rate for the building or any property located therein over that in effect prior
to the commencement of Tenant's occupancy. Tenant shall pay all costs, expenses,
fines, penalties, or damages, which may be imposed upon Owner by reason of
Tenant's failure to comply with the provisions of this article and if by reason
of such failure the fire insurance rate shall, at the beginning of this lease or
at any time thereafter, be higher than it otherwise would be, then Tenant shall
reimburse Owner, as additional rent hereunder, for that portion of all fire
insurance premiums thereafter paid by Owner which shall have been charged
because of such failure by Tenant. In any action or proceeding wherein Owner and
Tenant are parties, a schedule or "make-up" of rate for the building or demised
premises issued by the New York Fire Insurance Exchange, or other body making
fire insurance rates applicable to said premises shall be conclusive evidence of
the facts therein stated and of the several items and charges in the fire
insurance rates then applicable to said premises. Tenant shall not place a load
upon any floor of the demised premises exceeding the floor load per square foot
area which it was designed to carry and which is allowed by law. Owner reserves
the right to prescribe the weight and position of all safes, business machines
and mechanical equipment. Such installations shall be placed and maintained by
Tenant, at Tenant's expense, in settings sufficient, in Owner's judgment, to
absorb and prevent vibration, noise and annoyance.
Subordination: 7. This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the real property of which demised premises are a part and to all
renewals, modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Owner may request.
Property 8. Owner or its agents shall not be liable for any damage to property
of Tenant or of others entrusted to employees of the building, nor for loss of
or damage to any property of Tenant by theft or otherwise, nor for any injury or
damage to persons or property resulting from any cause of whatsoever nature,
unless caused by or due to the negligence of Owner, its agents, servants or
employees. Owner or its agents will not be liable for any such damage caused by
other tenants or persons in, upon or about said building or caused by operations
in construction of any private, public or quasi public work. If at any time any
windows of the demised premises are temporarily closed, darkened or bricked up
(or permanently closed, darkened or bricked up, if required by law) for any
reason whatsoever including, but not limited to Owner's own acts, Owner shall
not be liable for any damage Tenant may sustain thereby and Tenant shall not be
entitled to any compensation therefor nor abatement or diminution of rent nor
shall the same release Tenant from its obligations hereunder nor constitute an
eviction. Tenant shall indemnify and save harmless Owner against and from all
liabilities, obligations, damages, penalties, claims, costs and expenses for
which Owner shall not be reimbursed by insurance, including reasonable attorneys
fees, paid, suffered or incurred as a result of any breach by Tenant, Tenant's
agents, contractors, employees, invitees, or licensees, of any covenant or
condition of this lease, or the carelessness, negligence or improper conduct of
the Tenant, Tenant's agents, contractors, employees, invitees or licensees.
Tenant's liability under this lease extends to the acts and omissions of any
sub-tenant, and any agent, contractor, employee, invitee or licensee of any
sub-tenant. In case any action or proceeding is brought against Owner by reason
of any such claim, Tenant, upon written notice from Owner, will, at Tenant's
expense, resist or defend such action or proceeding by counsel approved by Owner
in writing, such approval not to be unreasonably withheld.
Destruction, Fire and Other Casualty: 9. (a) If the demised premises or any part
thereof shall be damaged by fire or other casualty, Tenant shall give immediate
notice thereof to Owner and this lease shall continue in full force and effect
except as hereinafter set forth. (b) If the demised premises are partially
damaged or rendered partially unusable by fire or other casualty, the damages
thereto shall be repaired by and at the expense of Owner and the rent, until
such repair shall be substantially completed, shall be apportioned from the day
following the casualty according to the part of the premises which is usable.
(c) If the demised premises are totally damaged or rendered wholly unusable by
fire or other casualty, then the rent shall be proportionately paid up to the
time of the casualty and thenceforth shall cease until the date when the
premises shall have been repaired and restored by Owner, subject to Owner's
right to elect not to restore the same as hereinafter provided and subject
further to Tenant's right to cancel lease as of date of destruction. (d) If the
demised premises are rendered wholly unusable or (whether or not the demised
premises are damaged in whole or in part) if the building shall be so damaged
that Owner shall decide to demolish it or to rebuild it, then, in any of such
events, Owner may elect to terminate this lease by written notice to Tenant,
given within 90 days after such fire or casualty, specifying a date for the
expiration of the lease, which date shall not be more than 60 days after the
giving of such notice, and upon the date specified in such notice the term of
this lease shall expire as fully and completely as if such date were the date
set forth above for the termination of this lease and Tenant shall forthwith
quit, surrender and vacate the premises without prejudice however, to Landlord's
rights and remedies against Tenant under the lease provisions in effect prior to
such termination, and any rent owing shall be paid up to such date and any
payments of rent made by Tenant which were on account of any period subsequent
to such date shell be returned to Tenant. Unless Owner shall serve a termination
notice as provided for herein, Owner shall make the repairs and restorations
under the conditions of (b) and (c) hereof, with all reasonable expedition,
subject to delays due to adjustment of insurance claims, labor troubles and
causes beyond Owner's control. After any such casualty, Tenant shall cooperate
with Owner's restoration by removing from the premises as promptly as reasonably
possible, all of Tenant's salvageable inventory and moveable equipment,
furniture, and other property. Tenant's liability for rent shall resume five (5)
days after written notice from Owner that the premises are substantially ready
for Tenant's occupancy. (e) Nothing contained hereinabove shall relieve Tenant
from liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, including Owner's obligation to restore under
subparagraph (b) above, each party shall look first to any insurance in its
favor before making any claim against the other party for recovery for loss or
damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law, Owner
and Tenant each hereby releases and waives all right of recovery against the
other or any one claiming through or under each of them by way of subrogation or
otherwise. The foregoing release and waiver shall be in force only if both
releasors' insurance policies contain a clause providing that such a release or
waiver shall not invalidate the insurance. If, and to the extent, that such
waiver can be obtained only by the payment of additional premiums, then the
party benefiting from the waiver shall pay such premium within ten days after
written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions
hereof with respect to waiver of subrogation. Tenant acknowledges that Owner
will not carry insurance on Tenant's furniture and/or furnishings or any
fixtures or equipment, improvements, or appurtenances removable by Tenant and
agrees that Owner will not be obligated to repair any damage thereto or replace
the same. (f) Tenant hereby waives the provisions of Section 227 of the Real
Property Law and agrees that the provisions of this article shall govern and
control in lieu thereof.
Eminent Domain: 10. If the whole or any part of the demised premises shall be
acquired or condemned by Eminent Domain for any public or quasi public use or
purpose, then and in that event, the term of this lease shall cease and
terminate from the date of title vesting in such proceeding and Tenant shall
have no claim for the value of any unexpired term of said lease and assigns to
Owner, Tenant's entire interest in any such award.
Assignment, Mortgage, Etc.: 11. Tenant, for itself, its heirs, distributees,
executors, administrators, legal representative, successor and assigns,
expressly covenants that it shall not assign, mortgage or encumber this
agreement, nor underlet, or suffer or permit the demised premises or any part
thereof to be used by others, without the prior written consent of Owner in each
instance. Transfer of the majority of the stock of a corporate Tenant shall be
deemed an assignment. If this lease be assigned, or if the demised premises or
any part thereof be underlet or occupied by anybody other than Tenant, Owner
may, after default by Tenant, collect rent from the assignee, under-tenant or
occupant, and apply the net amount collected to the rent herein reserved, but no
such assignment, underletting, occupancy or collection shall be deemed a waiver
of this covenant, or the acceptance of the assignee, under tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting.
Electric Current: 12. Rates and conditions in respect to submetering or rent
inclusion, as the case may be, to be added in RIDER attached hereto. Tenant
covenants and agrees that at all times its use of electric current shall not
exceed the capacity of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which, in Owner's
opinion, reasonably exercised, will overload such installations or interfere
with the use thereof by other tenants of the building. The change at any time of
the character of electric service shall in no wise make Owner liable or
responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain.
Access to Premises: 13. Owner or Owner's agents shall have the right(but shall
not be obligated) to enter the demised premises in any emergency at any time,
and, at other reasonable times, to examine the same and to make such repairs,
replacements and improvements as Owner may deem necessary and reasonably
desirable to the demised premises or to any other portion of the building or
which Owner may elect to perform. Tenant shall permit Owner to use and maintain
and replace pipes and conduits in and through the demised premises and to erect
new pipes and conduits therein provided they are concealed within the walls,
floor, or ceiling. Owner may, during the progress of any work in the demised
premises, take all necessary materials and equipment into said premises without
the same constituting an eviction nor shall the Tenant be entitled to any
abatement of rent while such work is in progress nor to any damages by reason of
loss or interruption of business or otherwise. Throughout the term hereof Owner
shall have the right to enter the demised premises at reasonable hours for the
purpose of showing the same to prospective purchasers or mortgagees of the
building, and during the last six months of the term for the purpose of showing
the same to prospective tenants. If Tenant is not present to open and permit an
entry into the demised premises, Owner or Owner's agents may enter the same
whenever such entry may be necessary or permissible by master key or forcibly
and provided reasonable care is exercised to safeguard Tenant's property, such
entry shall not render Owner or its agents liable therefor, nor in any event
shall the obligations of Tenant hereunder be affected. If during the last month
of the term Tenant shall have removed all or substantially all of Tenant's
property therefrom Owner may immediately enter, alter, renovate or redecorate
the demised premises without limitation or abatement of rent, or incurring
liability to Tenant for any compensation and such act shall have no effect on
this lease or Tenant's obligations hereunder.
Vault, Vault Space, Area: 14. No Vaults, vault space or area, whether or not
enclosed or covered, not within the property line of the building is leased
hereunder, anything contained in or indicated on any sketch, blue print or plan,
or anything contained elsewhere in this lease to the contrary notwithstanding.
Owner makes no representation as to the location of the property line of the
building. All vaults and vault space and all such areas not within the property
line of the building, which Tenant may be permitted to use and or occupy, is to
be used and/or occupied under a revocable license, and if any such license be
revoked, or if the amount of such space or area be diminished or required by any
federal, state or municipal authority or public utility, Owner shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such revocation, diminution or
requisition be deemed constructive or actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area shall be paid by Tenant.
Occupancy: 15. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part. Tenant has inspected the premises and accepts them
as is, subject to the riders annexed hereto with respect to Owner's work, if
any.
Bankruptcy: 16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by the sending of a
written notice to Tenant within a reasonable time after the happening of any one
or more of the following events: (1) the commencement of a case in bankruptcy or
under the laws of any state naming Tenant as the debtor; or (2) the making by
Tenant of an assignment or any other arrangement for the benefit of creditors
under any state statute. Neither Tenant nor any person claiming through or under
Tenant, or by reason of any statute or order of court, shall thereafter be
entitled to possession of the premises demised but shall forthwith quit and
surrender the premises. If this lease shall be assigned in accordance with its
terms, the provisions of this Article 16 shall be applicable only to the party
then owning Tenant's interest in this lease. (b) it is stipulated and agreed
that in the event of the termination of this lease pursuant to (a) hereof, Owner
shall forthwith, notwithstanding any other provisions of this lease to the
contrary, be entitled to recover from Tenant as and for liquidated damages an
amount equal to the difference between the rent reserved hereunder for the
unexpired portion of the term demised and the fair and reasonable rental value
of the demised premises for the same period. In the computation of such damages
the difference between any installment of rent becoming due hereunder after the
date of termination and the fair and reasonable rental value of the demised
premises for the period for which such installment was payable shall be
discounted to the date of termination at the rate of four percent (4%) per
annum. If such premises or any part thereof be re-let by the Owner for the
unexpired term of said lease, or any part thereof, before presentation of proof
of such liquidated damages to any court, commission or tribunal, the amount of
rent reserved upon such re-letting shall be deemed to be the fair and reasonable
rental value for the part or the whole of the premises so re-let during the term
of the re-letting. Nothing herein contained shall limit or prejudice the right
of the Owner to prove for and obtain as liquidated damages by reason of such
termination, an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
DeFault: 17. (1) If Tenant defaults in fulfilling any of the covenants of this
lease other than the covenants for the payment of rent or additional rent; or if
the demised premises become vacant or deserted; or if any execution or
attachment shall be issued against Tenant or any of Tenant's property whereupon
the demised premises shall be taken or occupied by someone other than Tenant, or
if this lease be rejected under Section 365 of Title 11 of the U.S. Code
(bankruptcy code); or if Tenant shall fail to move into or take possession of
the premises within thirty (30) days after the commencement of the term of this
lease, then, in any one or more of such events, upon Owner serving a written
fifteen (15) days notice upon Tenant specifying the nature of said default and
upon the expiration of said fifteen (15) days, if Tenant shall have failed to
comply with or remedy such default, or if the said default or omission
complained of shall be of a nature that the same cannot be completely cured or
remedied within said fifteen (15) day period, and if Tenant shall not have
diligently commenced curing such default within such fifteen (15) day period,
and shall not thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default, then Owner may serve a written five (5) days'
notice of cancellation of this lease upon Tenant, and upon the expiration of
said five (5) days this lease aid the term thereunder shall end and expire as
fully and completely as if the expiration of such five(5) day period were the
day herein definitely fixed for the end and expiration of this lease and the
term thereof and Tenant shall then quit and surrender the demised premises to
Owner but Tenant shall remain liable as hereinafter provided.
(2)If the notice provided for in (1) hereof shall have been given, and the term
shall expire as aforesaid; or if Tenant shall make default in the payment of the
rent reserved herein or any item of additional rent herein mentioned or any part
of either or in making any other payment herein required; then and in any of
such events Owner may without notice, re-enter the demised premises either by
force or otherwise, and dispossess Tenant by summary proceedings or otherwise,
and the legal representative of Tenant or other occupant of demised premises and
remove their effects and hold the premises if this lease had not been made, and
Tenant hereby waives the service of notice of intention to re-enter or to
institute legal proceeding to that end. If Tenant shall make default hereunder
prior to the date fixed as the commencement of any renewal or extension of this
lease, Owner may cancel and terminate such renewal or extension agreement by
written notice.
Remedies of Owner and Waiver of Redemption: 18. In case of any such default,
re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a)
the rent shall become due thereupon and be paid up to the time of such re-entry,
dispossess and/ or expiration, (b)Owner shall take reasonable efforts to re-let
the premises or any part or parts thereof, either in the name of Owner or
otherwise, for a term or terms, which may at Owner's option be less than or
exceed the period which would otherwise have constituted the balance of the term
of this lease and may grant concessions or free rent or charge a higher rental
than that in this lease, and/or (c) Tenant or the legal representatives of
Tenant shall also pay Owner as liquidated damages for the failure of Tenant to
observe and perform said Tenant's covenants herein contained, any deficiency
between the rent hereby reserved and/or covenanted to be paid and the net
amount, if any, of the rents collected on account of the lease or leases of the
demised premises for each month of the period which would otherwise have
constituted the balance of the term of this lease. The failure of Owner to
re-let the premises or any part or parts thereof shall not release or affect
Tenant's liability for damages. In computing such liquidated damages there shall
be added to the said deficiency such expenses as Owner may incur in connection
with re-letting, such as legal expenses, reasonable attorneys' fees, brokerage,
advertising and for keeping the demised premises in good order or for preparing
the same for re-letting. Any such liquidated damages shall be paid in monthly
installments by Tenant on the rent day specified in this lease and any suit
brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Owner to collect the deficiency for any
subsequent month by a similar proceeding. Owner, in putting the demised premises
in good order or preparing the same for re-rental may, at Owner's option, make
such alterations, repairs, replacements, and/or decorations in the demised
premises as Owner, in Owner's sole judgment, considers advisable and necessary
for the purpose of re-letting the demised premises, and the making of such
alterations, repairs, replacements, and/or decorations shall not operate or be
construed to release Tenant from liability hereunder as aforesaid. Owner shall
in no event be liable in any way whatsoever for failure to re-let the demised
premises, or in the event that the demised premises are re-let, for failure to
collect the rent thereof under such reletting, and in no event shall Tenant be
entitled to receive any excess, if any, of such net rents collected over the
sums payable by Tenant to Owner hereunder. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof, Owner
shall have the right of injunction and the right to invoke any remedy allowed at
law or in equity as if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in equity. 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 evicted or dispossessed for
any cause, or in the event of Owner obtaining possession of demised premises, by
reason of the violation by Tenant of any of the covenants and conditions of this
lease, or otherwise.
Fees and Expenses: 19. If Tenant shall default in the observance or performance
of any term or covenant on Tenant's part to be observed or performed under or by
virtue of any of the terms or provisions in any article of this lease, after
notice if required and upon expiration of any applicable grace period if any,
(except in an emergency), then, unless otherwise provided elsewhere in this
lease, Owner may immediately or at any time thereafter and without notice
perform the obligation of Tenant thereunder. If Owner, in connection with the
foregoing or in connection with any default by Tenant in the covenant to pay
rent hereunder, makes any expenditures or incurs any obligations for the payment
of money, including but not limited to reasonable attorneys' fees, in
instituting, prosecuting or defending any action or proceeding, and prevails in
any such action or proceeding then Tenant will reimburse Owner for such sums so
paid or obligations incurred with interest and costs. The foregoing expenses
incurred by reason of Tenant's default shall be deemed to be additional rent
hereunder and shall be paid by Tenant to Owner within five (5) days of rendition
of any xxxx or statement to Tenant therefor. If Tenant s lease term shall have
expired at the time of making of such expenditures or incurring of such
obligations, such sums shall be recoverable by Owner, as damages.
Building Alterations And Management: 20. Owner shall have the right at any time
without the same constituting an eviction and without incurring liability to
Tenant therefor to change the arrangement and/or location of public entrances,
passageways, doors, doorways, corridors, elevators, stairs, toilets or other
public parts of the building and to change the name, number or designation by
which the building may be known. There shall be no allowance to Tenant for
diminution of rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to business arising from Owner or other
Tenants making any repairs in the building or any such alterations, additions
and improvements. Furthermore, Tenant shall not have any claim against Owner by
reason of Owner's imposition of such controls of the manner of access to the
building by Tenant's social or business visitors as the Owner may deem necessary
for the security of the building and its occupants.
No Repre- sentations By Owner: 21. Neither Owner nor Owner's agents have made
any representations or promises with respect to the physical condition of the
building, the land upon which it is erected or the demised premises, the rents,
leases, expenses of operation or any other matter or thing affecting or related
to the premises except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this lease. Tenant has inspected the building and
the demised premises and is thoroughly acquainted with their condition and
agrees to take the same "as is" and acknowledges that the taking of possession
of the demised premises by Tenant shall be conclusive evidence that the said
premises and the building of which the same form a part were in good and
satisfactory condition at the time such possession was so taken, except as to
latent defects. All understandings and agreements heretofore made between the
parties hereto are merged in this contract, which alone fully and completely
expresses the agreement between Owner and Tenant and any executory agreement an
abandonment of it in whole or in part, unless such executory agreement is in
writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
End of Term: 22. Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear and damages which Tenant is
not required to repair as provided elsewhere in this lease excepted, and Tenant
shall remove all its property. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of this lease. If the
last day of the term of this Lease or any renewal thereof, falls on Sunday, this
lease shall expire at noon on the preceding Saturday unless it be a legal
holiday in which case it shall expire at noon on the preceding business day.
Quiet Enjoyment: 23. Owner covenants and agrees with Tenant that upon Tenant
paying the rent and additional rent and observing and performing all the terms,
covenants and conditions, on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the premises hereby demised, subject,
nevertheless, to the terms and conditions of this lease including, but not
limited to, Article 31 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
Failure To Give Possession: 24. If Owner is unable to give possession of the
demised premises on the date of the commencement of the term hereof, because of
the holding-over or retention of possession of any tenant, undertenant or
occupants or if the demised premises are located in a building being
constructed, because such building has not been sufficiently completed to make
the premises ready for occupancy or because of the fact that a certificate of
occupancy has not been procured or for any other reason, Owner shall not be
subject to any liability for failure to give possession on said date and the
validity of the lease shall not be impaired under such circumstances, nor shall
the same be construed in any wise to extend the term of this lease, but the rent
payable hereunder shall be abated (provided Tenant is not responsible for
Owner's inability to obtain possession or complete construction) until after
Owner shall have given Tenant written notice that the Owner is able to deliver
possession in condition required by this lease. If permission is given to Tenant
to enter into the possession of the demises premises or to occupy premises other
than the demised premises prior to the date specified as the commencement of the
term of this lease, Tenant covenants and agrees that such possession and/or
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this lease except the obligation to pay the fixed annual rent set
forth in the preamble to this lease. The provisions of this article are intended
to constitute "an express provision to the contrary" within the meaning of
Section 223-a of the New York Real Property Law.
No Waiver: 25. The failure of Owner to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this lease or
of any of the Rules or Regulations, set forth or hereafter adopted by Owner,
shall not prevent a subsequent act which would have originally constituted a
violation from having all the force and effect of an original violation. The
receipt by Owner of rent and/or additional rent with knowledge of the breach of
any covenant of this lease shall not be deemed a waiver of such breach and no
provision of this lease shall be deemed to have been waived by Owner unless such
waiver be in writing signed by Owner. No payment by Tenant or receipt by Owner
of a lesser amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement of any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Owner may accept such check or
payment without prejudice to Owner's right to recover the balance of such rent
or pursue any other remedy in this lease provided. No act or thing done by Owner
or Owner's agents during the term hereby demised shall be deemed an acceptance
of a surrender of said premises, and no agreement to accept such surrender shall
be valid unless in writing signed by Owner. No employee of Owner or Owner's
agent shall have any power to accept the keys of said premises prior to the
termination of the lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of the premises.
Waiver of Trial by Jury: 26. It is mutually agreed by and between Owner 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 (except for personal injury or property damage)
on any matters whatsoever arising out of or in any way connected with this
lease, the relationship of Owner and Tenant, Tenant's use of or occupancy of
said premises, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Owner commences any proceeding or
action for possession including a summary proceeding for possession of the
premises, Tenant will not interpose any counterclaim of whatever nature or
description in any such proceeding including a counterclaim under Article 4
except for statutory mandatory counterclaims.
Inability to Perform: 27. This Lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in no wise be affected, impaired or excused
because Owner is unable to fulfill any of its obligations under this lease or to
supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make, or is delayed without fault in making any repair,
additions, alterations or decorations or is unable to supply or is delayed in
supplying any equipment, fixtures, or other materials if Owner is prevented or
delayed from so doing by reason of strike or labor troubles or any cause
whatsoever including, but not limited to, government preemption or restrictions
or by reason of any rule, order or regulation of any department or subdivision
thereof of any government agency or by reason of the conditions which have been
or are affected, either directly or indirectly, by war or other emergency.
Bills and Notices: 28. Except as otherwise in this lease provided, a xxxx,
statement, notice or communication which Owner may desire or be required to give
to Tenant, shall be deemed sufficiently given or rendered if, in writing,
delivered to Tenant personally or sent by registered or certified mail to Tenant
at the residence address or business address of Tenant or left at any of the
aforesaid premises addressed to Tenant, and the time of the rendition of such
xxxx or statement and of the giving of such notice or communication shall be
deemed to be the time when the same is delivered to Tenant, mailed, or left at
the premises as herein provided. Any notice by Tenant to Owner must be served by
registered or certified mail addressed to Owner at the address first hereinabove
given or at such other address as Owner shall designate by written notice.
Services Provided by Owners: 29. As long as Tenant is not in default under any
of the covenants of this lease beyond the applicable grace period provided in
this lease for the curing of such defaults, Owner shall provide: (a) necessary
elevator facilities on business days from 8 a.m. to 6 p.m. and have one elevator
subject to call at all other times; (b) heat to the demised premises when and as
required by law, on business days from 8 a.m. to 6 p.m.; (c) water for ordinary
lavatory purposes, but if Tenant uses or consumes water for any other purposes
or in unusual quantities (of which fact Owner shall be the sole judge), Owner
may install a water meter at Tenant's expense which Tenant shall thereafter
maintain at Tenant's expense in good working order and repair to register such
water consumption and Tenant shall pay for water consumed as shown on said meter
as additional rent as and when bills are rendered; (d) cleaning service for the
demised premises on business days at Owner's expense provided that the same are
kept in order by Tenant. If, however, said premises are to be kept clean by
Tenant, it shall be done at Tenant's sole expense, in a manner reasonably
satisfactory to Owner and no one other than persons approved by Owner shall be
permitted to enter said premises or the building of which they are a part for
such purpose. Tenant shall pay Owner the cost of removal of any of Tenant's
refuse and rubbish from the building; (e) If the demised premises are serviced
by Owner's air conditioning/cooling and ventilating system, air
conditioning/cooling will be furnished to tenant from May 15th through September
30th on business days (Mondays through Fridays, holidays excepted) from 8:00
a.m. to 6:00 p.m., and ventilation will be furnished on business days during the
aforesaid hours except when air conditioning/cooling is being furnished as
aforesaid. If Tenant requires air conditioning/cooling or ventilation for more
extended hours or on Saturdays, Sundays or on holidays, as defined under Owner's
contract with Operating Engineers Local 94-94A, Owner will furnish the same at
Tenant's expense. RIDER to be added in respect to rates and conditions for such
additional service; (f) Owner reserves the right to stop services of the
heating, elevators, plumbing, air-conditioning, electric, power systems or
cleaning or other services, if any, when necessary by reason of accident or for
repairs, alterations, replacements or improvements necessary or, desirable in
the judgment of Owner for as long as may be reasonably required by reason
thereof. If the building of which the demised premises are a part supplies
manually operated elevator service, Owner at any time may substitute automatic
control elevator service and proceed diligently with alterations necessary
therefor without in any wise affecting this lease or the obligation of Tenant
hereunder.
Captions: 30. The Captions are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this lease nor
the intent of any provisions thereof.
Definitions: 31. The term "office", or "offices", wherever used in this lease,
shall not be construed to mean premises used as a store or stores, for the sale
or display, at any time, of goods, wares or merchandise, of any kind, or as a
restaurant, shop, booth, bootblack or other stand, xxxxxx shop, or for other
similar purposes or for manufacturing. The term "Owner" means a landlord or
lessor, and as used in this lease means only the owner, or the mortgagee in
possession, for the time being of the land and building (or the owner of a lease
of the building or of the land and building) of which the demised premises form
a part, so that in the event of any sale or sales of said land and building or
of said lease, or in the event of a lease of said building, or of the land and
building, the said Owner shall be and hereby is entirely freed and relieved of
all covenants and obligations of Owner hereunder, and it shall be deemed and
construed without further agreement between the parties or their successors in
interest, or between the parties and the purchaser, at any such sale, or the
said lessee of the building, or of the land and building, that the purchaser or
the lessee of the building has assumed and agreed to carry out any and all
covenants and obligations of Owner, hereunder. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their technical legal
meaning. The term "business days" as used in this lease shall exclude Saturdays,
Sundays and all days as observed by the State or Federal Government as legal
holidays and those designated as holidays by the applicable building service
union employees service contract or by the applicable Operating Engineers
contract with respect to HVAC service. Wherever it is expressly provided in this
lease that consent shall not be unreasonably withheld, such consent shall not be
unreasonably delayed.
Adjacent Excavation Shoring: 32. If an excavation shall be made upon land
adjacent to the demised premises, or shall be authorized to be made, Tenant
shall afford to the person causing or authorized to cause such excavation,
license to enter upon the demised premises for the purpose of doing such work as
said person shall deem necessary to preserve the wall or the building of which
demised premises form a part from injury or damage and to support the same by
proper foundations without any claim for damages or indemnity against Owner, or
diminution or abatement of rent.
Rules and Regulations: 33. Tenant and Tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully, and comply strictly with, the
Rules and Regulations and such other and further reasonable Rules and
Regulations as Owner or Owner's agents may from time to time adopt. Notice of
any additional rules or regulations shall be given in such manner as Owner may
elect. In case Tenant disputes the reasonableness of any additional Rule or
Regulation hereafter made or adopted by Owner or Owner's agents, the parties
hereto agree to submit the question of the reasonableness of such Rule or
Regulation for decision to the New York office of the American Arbitration
Association, whose determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rule or
Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing upon Owner within fifteen (15) days
after the giving of notice thereof. Noting in this lease contained shall be
construed to impose upon Owner any duty or obligation to enforce the Rules and
Regulations or terms, covenants or conditions in any other lease, as against any
other tenant and Owner shall not be liable to Tenant for violation of the same
by any other tenant, its servants, employees, agents, visitors or licenses.
Security: 34. Tenant has deposited with Owner the sum of $11,816.75 as security
for the faithful performance and observance by Tenant of the terms, provisions
and conditions of this lease, including, but not limited to, the payment of rent
and additional rent, Owner may use, apply or retain the whole or any part of the
security so deposited to the extent required for the payment of any rent and
additional rent or any other sum as to which Tenant is in default or for any sum
which Owner may expend or may be required to expend by reason of Tenant's
default in respect of any of the terms, covenants and conditions of this Lease,
including but not limited to, any damages or deficiency in the re-letting of the
premises, whether such damages or deficiency accrued before or after summary
proceedings or other re-entry by Owner. In the event that Tenant shall fully and
faithfully comply with all of the terms, provisions, covenants and conditions of
this Lease, the security shall be returned to Tenant after the date fixed at the
end of the Lease and after delivery of entire possession of the demised premises
to Owner. In the event of a sale of the land and building or leasing of the
building, of which the demised premises form a part, Owner shall have the right
to transfer the security to the vendee or lessee and Owner shall thereupon be
released by Tenant from all liability for the return of such security; and
Tenant agrees to look to the new Owner solely for the return of said security,
and it is agreed that the provisions hereof shall apply to every transfer or
assignment made of the security to a new Owner. Tenant further covenants that it
will not assign or encumber or attempt to assign or encumber the monies
deposited herein as security and that neither Owner nor its successors or
assigns shall be bound by any such assignment, encumbrance, attempted assignment
or attempted encumbrance.
Estoppel Certificate: 35. Tenant, at any time, and from time to time, upon at
least 10 days' prior notice by Owner, shall execute, acknowledge and deliver to
Owner, and/or to any other person, firm or corporation specified by Owner, a
statement certifying 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 stating the modifications), stating the dates to which the rent
and additional rent have been paid, and stating whether or not there exists any
default by Owner under this Lease, and, if so, specifying each such default.
Successors And Assigns: 36. The covenants, conditions and agreements contained
in this lease shall bind and inure to the benefit of Owner and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this lease, their assigns. Tenant shall look
only to Owner's estate and interest in the land and building, for the
satisfaction of Tenant's remedies for the collection of a judgment (or other
judicial process) against Owner in the event of any default by Owner hereunder,
and no other property or assets of such Owner (or any partner, member, officer
or director thereof, disclosed or undisclosed), shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to this lease, the relationship of Owner and
Tenant hereunder, or Tenant's use and occupancy of the demised premises.
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
Witness for Owner: /s/
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Witness for Tenant: /s/
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ACKNOWLEDGEMENTS
CORPORATE OWNER
STATE OF NEW YORK, ss.:
On this day of ,l9 , before me personally came to me known, who being by me duly
sworn, did depose and say that he resides in_________________________________;
that he is the _____________ of ______________ the corporation described in and
which executed the foregoing instrument, as OWNER that he knows the seal of said
corporation; the seal affixed to said instrument is such corporate seal; that it
was so affixed by order of the Board of Directors of said corporation, and that
he signed his name thereto by like order.
INDIVIDUAL OWNER
STATE OF NEW YORK, ss.:
County of
On this day of , l9 , before me personally came ___________________ to be known
and known to me to be the individual described in and who, as OWNER, executed
the foregoing instrument and acknowledged to me that ________________ he
executed the same.
CORPORATE TENANT
STATE OF NEW YORK, ss.:
On this day of ,l9 , before me personally came to me known, who being by me duly
sworn, did depose and say that he resides in_________________________________;
that he is the _____________ of ______________ the corporation described in and
which executed the foregoing instrument, as TENANT that he knows the seal of
said corporation; the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation,
and that he signed his name thereto by like order.
INDIVIDUAL TENANT
STATE OF NEW YORK, ss.:
County of
On this day of , l9 , before me personally came ___________________ to be known
and known to me to be the individual described in and who, as TENANT, executed
the foregoing instrument and acknowledged to me that ________________ he
executed the same.
RIDER TO LEASE
DATED:
BETWEEN: 4250 VETS HIGHWAY LLC
and AMERICAN PORTFOLIOS FINANCIAL SERVICES, INC.
R1. INCONSISTENCIES: In the event of any inconsistencies or conflicts between
the terms of the printed form of this Lease and the terms of this Rider, the
terms of this Rider shall be controlling. The terms "Landlord1' and "Lessor",
shall be used interchangeably herein, as shall the terms "Tenant" and "Lessee".
R2. ADDITIONAL RENT: In the event the Tenant is obligated to pay any charges or
sums, pursuant to the terms of this Lease, including but not limited to real
estate taxes or increases thereof, maintenance charges, utility fees, Landlord's
legal fees, or late charges, such charges or sums for all purposes shall be
deemed to be due and collectible as additional rent, and Tenant hereby
acknowledges that the failure to pay any such additional rent when due, shall
constitute grounds for the Landlord to commence summary proceedings pursuant to
Article 7 of Real Property and Proceedings Law of the State of New York or any
successor statute thereto.
R3. COMMENCEMENT OF TERM: The term of this Lease shall commence on October 1,
1999. In the event that the term shall commence on a day other than the first
day of a calendar month, Lessee shall on said date pay to Lessor for such
fractional month, prorated on the basis of a thirty (30) day month, its monthly
installment on account of Minimum Annual Rent otherwise required to be paid for
said month under Schedule "A" of this Lease. In such event, the first fully
monthly installment on account of Minimum Annual Rent which Lessee has
heretofore or herewith paid to Lessor by checks subject to collection shall be
applied to the charges for same, due on the first day of the calendar month next
there following.
R4. USE OF PREMISES: Lessee shall use the demised premises solely for the
purpose of conducting the business of GENERAL OFFICE PURPOSES Lessee shall not
use or permit, or suffer or permit the use of the demised premises for any other
purpose. Lessee shall not conduct Lessee's business under any assumed name or
trade name other than its full actual name, unless and until Lessee shall first
comply with all of the requirements of Section 130 of the General Business Law
of the State of New York and shall deliver to Lessor, and to each of them, a
certified copy of each Assumed Name Certificate filed with the Suffolk County
Clerk or the NYS Secretary of State under said statute, as the case may be, duly
certified by said official, together with proof of filing.
R5. LATE CHARGES: If any payment due under this Lease on account of Minimum
Annual Rent, taxes, maintenance charges or other monies due to Lessor is not
paid within seven (7) days after the due date of same, Lessee shall pay to
Lessor a sum equal to 5% of such delinquent payment in order to offset Lessor's
additional bookkeeping and administrative expenses in connection with the
collection thereof, it being impossible to determine Lessor's exact costs
incurred by reason of such overdue payment. Said late charges shall be deemed
additional rent due under this Lease, as liquidated additional damages and not
as a penalty; and shall be due on the due date of the delinquent sum for which
the same shall be deemed assessed hereunder. If the rent is paid by check and
the check is dishonored by the Tenant's bank, the Tenant shall be obligated to
pay any bank charges plus the late charges as herein before provided.
R6. ESTOPPEL CERTIFICATE: Lessee shall, on request of Lessor, execute and
delivery to Lessor a written declaration in recordable form:
(a) Ratifying this Lease;
(b) Stating the commencement and termination date thereof;
(c) Certifying that this Lease is in full force and effect and has not been
assigned, modified, supplemented, or amended (except as shall be stated);
(d) That all conditions under this Lease to be performed by Lessor have been
satisfied (or stating those that have not been satisfied) ;
(e) That there are no defenses or offsets against the enforcement of this Lease
by the Lessor (or stating those claimed by Lessee) ;
(f) The amount of advance rent, if any, paid by Lessee to Lessor (or none, if
such is the case);
(g) The date to which rents have been paid; and
(h) The amount of security deposit with Lessor theretofore and the balance of
security owed, if any.
The aforesaid declaration shall be executed and delivered by Lessee from time to
time as may be requested by Lessor. Lessor's mortgage lenders and/or purchasers,
if any, shall be entitled to rely upon the same.
R7. BROKER'S COMMISSIONS: Lessee represents that no broker, except - NO BROKER -
was instrumental in consummating this Lease; and that no conversations or prior
negotiations were had with any other broker concerning the renting of the
demised premises. Lessee shall be deemed to forever hold Lessor harmless against
any claims of other brokers and persons for commissions or other compensation
arising out of the acts of Lessee and/or Lessee's agents, servants and/or
employees together with all costs, disbursements, expenses, and reasonable
attorneys fees incurred by Lessor in defending any and all actions and
proceedings brought for commissions or other compensation account of the
foregoing, or otherwise for any matter arising out of this Lease and the acts of
Lessee or Lessee's agents, servants or employees. Lessor shall be responsible
for the payment of the commission to the above-named broker pursuant to a
separate agreement.
R8. PLACE AND MANNER OF PAYMENTS: All payments required to be made by Lessee to
Lessor shall be made payable directly to the order of Lessor, or to such
designee as Lessor shall designate in writing; and all such payments and all
reports required to be rendered by Lessee to Lessor shall be delivered to the
office of Lessor at the address of Lessor described in this Lease or at such
other place or places as Lessor may from time to time designate, without any
prior demand.
R9. SECURITY DEPOSIT: Lessee has deposited for its security deposit with Lessor,
the sum of $11,816.75 by check subject to collection. The aforesaid sum shall be
held by Lessor as security for the faithful performance by Lessee of all of the
terms, covenants, conditions and provisions of this Lease on the part of Lessee
to be observed and performed. Said security deposit shall not be mortgaged,
assigned, transferred, or encumbered by Lessee, and any such act on the part of
Lessee shall be without force and effect and shall not be binding on Lessor. If
any rents herein reserved or any other sum required to be paid by Lessee to
Lessor shall be overdue and unpaid, or if Lessor shall make payments on behalf
of the Lessee, or if Lessee shall fail to perform any of the terms, covenants,
conditions and/or provisions of this Lease on the part of lessee required to be
performed, then and in that event Lessor may, at Lessor's sole option and
without prejudice to any other remedy which Lessor may have on account thereof,
appropriate and apply said entire security deposit, or so much thereof as may be
necessary, to compensate Lessor for the payment of rent, additional rent, loss
or damages sustained by Lessor due to such breach on the part of Lessee; and
Lessee shall forthwith on demand of Lessor therefor restore said security to the
original sum deposited. In the event of bankruptcy, insolvency, or other
creditor or debtor proceedings against Lessee, all monies paid on account of
security shall be deemed to be applied first to the payment of rent, additional
rent, and other monies due Lessor for period prior to the filing of such
proceedings.
In the event that Lessee shall comply with all of the terms, covenants,
conditions and provisions on the part of Lessee to be performed under this
Lease, including with respect to the payments of rents, additional rents, and
other monies due and owing as and when they shall be and become due, the
aforesaid security deposit of Lessee shall be returned in full to Lessee, at the
end of the term of this Lease and after delivery of possession of the demised
premises to Lessor in good order, repair and otherwise as provided for under the
Lease.
R10. TRANSFER OF SECURITY DEPOSIT: Lessor may assign any and all monies
deposited by or on behalf of Lessee with Lessor as security under this Lease, to
any purchaser of Lessor's interest in the Building in which the demised premises
are located. In the event that such interest shall be sold, and upon notice
thereof by Lessor to Lessee, Lessor shall be deemed forever discharged from any
liability with respect to such security; and Lessee shall look solely to the
purchaser of Lessor's interest in the Building in which the demised premises are
located for the same. The foregoing shall also be deemed to apply to any
subsequent transferees.
R11. REPAIRS AND ALTERATIONS: A. Lessor shall not be required to make any
repairs or improvements of any kind upon the demised premises except for
necessary structural repairs. Lessee shall, at Lessee's sole cost and expense,
take good care of and make all repairs, to the interior of the demised premises,
and the fixtures and equipment therein and appurtenances thereto, including any
interior windows, doors and entrances, signs, floor coverings, interior walls,
and partitions. The Lessor shall maintain and repair HVAC systems, plumbing
leading to premises and sewerage facilities.
B. All alterations to the premises of any nature whatsoever ("Alterations") are
subject to Article 3 of the printed form of this lease and the following
requirements:
(1) Prior to the commencement of any alterations, Tenant shall submit to
Landlord, for Landlord's written approval, plans and specifications (to be
prepared by and at the expense of Tenant) showing the proposed alterations in
detail satisfactory to Landlord. No alterations shall begin until Landlord shall
have approved such plans and specifications, in writing, and Tenant shall have
delivered to Landlord certificates for all insurance Tenant is required to
maintain under this lease in connection with making alterations. Tenant shall
make all approved alterations at its own expense, in accordance with the plans
and specifications therefor approved by Landlord and then only by contractors
and mechanics approved by Landlord. No amendments or additions shall be made to
any plans and specifications for alterations approved by Landlord without
Landlord's prior written consent, which consent shall not be unreasonably
withheld or delayed.
(2) The alterations will not result in a violation of or require a change in any
certificate of occupancy covering the Premises or the Building;
(3) The character, outside appearance, usefulness and/or rentability of the
premises or the building or any part thereof, shall not be affected in any way,
and such alterations shall not, in the sole opinion of Landlord, weaken or
impair (temporarily or permanently) the structure or lessen the value or cubic
content of the building, upon their completion;
(4) No part of the building other than the premises shall be physically
affected. Without limiting the generality of the foregoing, Tenant shall not,
without Landlord's specific prior written consent, cause to be made,
constructed, erected, installed or otherwise placed through, on or about the
exterior walls or the roof of the building any holes, vents, windows, fans,
pipes, ducts, doors, machinery, equipment, appliances (including, without
limitation, air conditioning unit(s), television or radio antenna or other
tangible objects of any nature whatsoever.
(5) The proper functioning of the building's equipment, in the sole opinion of
Landlord, shall not be adversely affected;
(6) Upon completion of any alterations (excluding mere decorations), Tenant
shall deliver to Landlord a copy of "as built" plans for such alterations;
(7) Tenant shall not perform alterations in any manner which for any reason
whatsoever would, interfere or conflict with work being performed by contractors
or laborers then engaged in the building or would disturb the management,
operation or maintenance of the building or any part thereof;
(8) No approval by Landlord of alterations to be made by Tenant shall in any way
be deemed to be an agreement by Landlord that such alterations comply with
applicable legal or insurance carrier requirements. Notice is hereby given that
Landlord shall not be liable for any labor or materials furnished to Tenant, and
that no mechanic's or other lien for such labor or materials shall attach to or
affect any interest of Landlord;
(9) Throughout the performance of Tenant's alterations, Tenant, at its expense,
shall carry, or cause to be carried by Tenant's contractors and subcontractors
all insurance, including without limitation, that required by Articles 3 of the
printed form of this lease, or as otherwise may be required by law. Tenant shall
furnish Landlord with copies of the insurance policies required hereunder or
certificates thereof that such insurance is in effect at or before the
commencement of alterations and, on request, at reasonable intervals thereafter
during the continuance of alterations.
(10) In connection with all work to be performed in and for the demised
premises, Tenant shall file all drawings, plans and specifications, pay all fees
and obtain all permits and applications from the Building Department, the
Department of labor and any other authorities having jurisdiction; and Tenant
shall obtain a Certificate of Occupancy and all other approvals required for
Tenant to use and occupy the demised premises and to open for business to the
public. If Tenant shall delay in obtaining a Certificate of Occupancy for the
demised premises, Landlord, at Tenant's cost and expense, may attempt to obtain
such Certificate of occupancy and Tenant shall cooperate with Landlord
(including the signing of any necessary forms or applications) in connection
with such efforts. Tenant shall reimburse Landlord, as additional rent, for any
costs incurred in obtaining such Certificate of Occupancy.
R12. LESSEE'S FAILURE TO REPAIR: If Lessee (a) refuses or neglects to make
repairs or otherwise fails to perform any of Lessee's work or maintenance
obligations hereunder, or (b) if Lessor is required to make exterior or
structural repairs by reason of Lessee's negligent acts or omissions, Lessor
shall have the right, but shall not be obligated, to make such repairs or
perform on behalf of and for the account of Lessee. In such event, such work
shall be paid for by Lessee as additional rent promptly upon receipt of a xxxx
therefor, along with an additional fee equivalent to 15% of such repair charge
representing Landlord's administrative expenses in making such repairs, which
shall also be collectible as additional rent.
R13. MECHANIC'S LIENS: Should any mechanic's or other liens be filed against the
demised premises or any part thereof for any reason whatsoever by reason of
Lessee's acts or omissions or because of a claim against Lessee, by any
contractor, subcontractor, materialman, or any other party acting for or on
behalf of Lessee, Lessee shall cause the same forthwith to be canceled and
discharged of record at Lessee's sole cost and expense within 10 days of filing
thereof. If Lessee fails to discharge any mechanic's lien, Landlord, at its
option, in addition to all other rights or remedies herein provided, may bond or
pay said lien or claim for the account of and at the expense of Tenant, as
additional rent, without inquiring into the validity or merit thereof, and the
Tenant waives any claims, defenses, offsets and designates the Landlord as its
agent and/or attorney in fact to do anything necessary to immediately remove or
release the lien.
Rl4. UTILITY CHARGES: Lessor shall not be liable in the event of any
interruption in the supply of any utilities. Lessee shall not install any
equipment that will exceed or overload the capacity of any utility facility; and
if any equipment installed by Lessee shall require additional utility
facilities, the same shall be installed at Lessee's sole cost and expense in
accordance with plans and specifications previously approved in writing by
Lessor. Tenant agrees to pay for the electric service to the demised premises at
the rate of $2.25 per square foot, or $805.68 per month, and shall be paid along
with the base rental on the first day of each month. Such charges shall be
collectible as additional rent. In addition, in the event that the cost to the
Landlord of electric service exceeds said sum per square foot, then the Tenant
shall likewise pay any such increase as additional rent throughout the term of
the lease.
Rl5. DEFAULT: (a) If Lessee shall fail to pay any rent, additional rent, or
other monies due under this Lease within fifteen (15) days after the due date
thereof; or shall fail to duly and timely perform any other term, covenant,
condition or provision of this Lease required to be performed; or if Lessee
shall become bankrupt or insolvent, or file any debtor proceedings, or take or
have taken against Lessee in any court pursuant to any statute either of the
United States or of any state a petition in bankruptcy or insolvency, or for
reorganization, or for the appointment of a receiver or trustee of all or a
portion of Lessee's property; or shall make an assignment for the benefit of
creditors, or petition for or enter into an arrangement, or suffer this Lease to
be taken under any writ of execution or attachment; or if this Lease shall pass
to or devolve upon, by law or otherwise, one other than Lessee except as
otherwise provided for in this Lease, then in any one or more of such events,
upon Lessor serving a written five (5) day notice of default upon Lessee
specifying the nature of said default and if, at the expiration of said five (5)
day period, Lessee shall have failed to cure the default then, Lessor may give
Lessee a three (3) day notice of cancellation of this Lease and at the
expiration of such three (3) day period, this Lease and the term hereunder shall
terminate and come to an end of the date specified in such notice of
cancellation, and Lessee shall quit and surrender the demised premises to Lessor
as if the term hereunder ended by expiration of the time fixed herein. In such
event, however, Lessee shall remain liable to Lessor for all monies as
hereinafter provided.
(b) If the notices provided shall have been given and the term shall expire as
aforesaid; or should Lessor elect to terminate this Lease, Lessor shall have the
immediate right of reentry and may remove all persons and property from the
demised premises; and such property may be removed and stored in a public
warehouse or elsewhere at the cost of, and for the account of Lessee, all
without service of notice or resorting to legal process (which notice Lessee
hereby expressly waives) and without being deemed guilty of trespass, or
becoming liable for any loss or damage which may be occasioned thereby. Lessor
shall have a lien for the payment of all sums agreed to be paid by Lessee herein
upon all Lessee's property, which is to be in addition to any lien in Lessor's
favor now or hereafter provided for by law.
(c) Should Lessor elect to re-enter the demised premises or take possession
pursuant to legal proceedings or pursuant to any notice provided for by law,
Lessor may make such alterations and repairs as Lessor may in Lessor's sole
discretion deem necessary in order to relet the premises; and Lessor may relet
said premises or any part thereof for such term or terms (which may be for a
term extending beyond the term of this lease) and at such commercially
reasonable rentals and upon such other terms and conditions as Lessor in its
sole discretion may deem advisable. Upon each such reletting, all rentals
received by Lessor from such reletting shall be applied first to the payment of
any indebtedness other than rent due hereunder from Lessee to Lessor; second, to
the payment of any reasonable costs and expenses of such reletting, including
brokerage fees and attorney's fees and the cost of alterations and repairs;
third, to the payment of rent and additional rent due and unpaid hereunder; and
the residue, if any, shall be held by Lessor and applied in payment of future
rent as the same may become due and payable hereunder. If such rentals received
from such reletting during any month be less than that to be paid during that
month by Lessee hereunder, Lessee shall pay any such deficiency to Lessor. Such
deficiency shall be paid on demand.
(d) In the event of any default on the part of Lessee which shall result in the
bringing of any action or proceeding by Lessor, whether to recover possession of
the premises or otherwise, all sums due and owing to Lessor on account of rent,
additional rent, accelerate rent, minimum rent, or otherwise under this Lease,
together with all costs, disbursements, expenses and reasonable attorney's fees
incurred by Lessor, shall be recoverable by Lessor in such action or proceeding
or in any other action or proceeding brought by Lessor, in Lessor's sole
discretion. In addition, all costs, disbursements, expenses and reasonable
attorney's fees incurred by Lessor in successfully defending any action or
proceeding brought by Lessee or by any third party as a result of any act of
Lessee, shall likewise be recoverable by Lessor.
(e) The parties 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 Lessor and Lessee, and Lessee's use of occupancy of the demised
premises except in claims for personal injury or property damage.
(f) Lessee hereby expressly waives any and all rights to redemption granted by
or under any present or future laws in the event of Lessee being evicted or
dispossessed for any cause, or in the event of Lessor obtaining possession of
the demised premises, by reason of the violation by Lessee of any of the
provisions of this Lease.
(g) In the event of a breach or threatened breach by Lessee of any provision of
this Lease, Lessor shall have the right of injunction separate and apart from
all other rights and remedies provided for in this Lease and/or under the law.
(h) The rights and remedies given to Lessor in this Lease are distinct, separate
and cumulative remedies, and the exercise of any of them shall not be deemed to
exclude Lessor's right to exercise any or all of the others.
(i) This paragraph shall apply to any renewal or extension of this Lease; and if
Lessee shall default hereunder prior to the date fixed as the commencement of
any renewal or extension of this Lease, to which the parties may hereafter
agree, Lessor may cancel such renewal or extension agreement on two (2) days'
written notice to Lessee.
Rl6. ACCELERATION OF MINIMUM ANNUAL RENTS: Anything in this Lease to the
contrary notwithstanding, the premises herein are leased to Lessee for the
entire stated term; and the privilege granted to Lessee under this Lease to pay
Lessee's basic rent ("Minimum Annual Rent") in monthly installments is solely
for the convenience of Lessee. If Lessee should default in the payment of any
monthly installment of the foregoing, and/or should default in the payment of
any additional rent or other monies due to Lessor under the Lease however and to
whomever designed, and if said default shall continue for 15 days after the due
date thereof, Lessor may at Lessor's sole option accelerate all rent and
additional rent then due and all or any part of rent and additional rent that
would otherwise be due during the balance of the entire stated term of this
Lease, and demand immediate payment of same, by service upon Lessee, either by
personal delivery or by any other method set forth for the service of notices
under this Lease. If such notice and demand shall be served by mail, the same
shall be deemed served when postmarked.
If Lessee shall pay to Lessor, within 10 days after service of the aforesaid
notice and demand, all arrears (i.e. non-accelerated) of rent and/or additional
rent then due and owing, including all late charges due under this Lease,
together with an attorney's fee in the sum of $350 for the preparation by
Lessor's attorney for the aforesaid notice and demand, the aforesaid
acceleration shall be deemed rescinded; otherwise all sums demanded in said
notice and demand shall be deemed then due and owing, retroactive to the date of
Lessee's default unless the parties have otherwise agreed, in writing to the
contrary, time shall be deemed "of the essence" as to Lessor's receipt of all of
the aforesaid monies in order for a cure of Lessee's default to be effective.
Landlord shall, nevertheless, use its best efforts to mitigate its damages in
the event of Tenant's default.
Rl7. ASSIGNMENT AND SUBLETTING: (a) Except for an entity over which Xxx Xxxxxx
controls at least a 51% interest, the Lessee shall not assign, mortgage or
encumber this Lease, in whole or in part, or sublet all or any part of the
demised premises without the prior written consent of Lessor. The consent by
Lessor of any assignment or subletting shall not constitute a waiver of the
necessity for such consent to any subsequent assignment or subletting. The
prohibition against assigning or subletting shall be construed to include a
prohibition against any assignment or subletting by operation of law. If this
Lease be assigned or if the demised premises or any part thereof be occupied by
anybody other than Lessee, Lessor may collect rent from the assignee or occupant
and apply the net amount collected to the rent herein reserved; but no such
assignment, subletting, occupancy or collection shall be deemed a waiver of this
provision or the acceptance of the assignee, under subtenant, or occupant as
Lessee, or, except as otherwise provided in this Lease, as a release of Lessee
from the further performance by Lessee of the terms, covenants, conditions
and/or provisions of this Lease on Lessee's part to be performed hereunder.
Notwithstanding any assignment or sublease, Lessee shall remain fully liable and
shall not be released from Lessee's obligations under this Lease. If Lessee is a
corporation and if any transfer, sale, pledge or other disposition of its common
stock shall occur, or power to vote the majority of the outstanding capital
stock be changed, such change shall be deemed a material default hereunder, and
Lessor shall have the right at its option to terminate this Lease upon five (5)
days notice to Lessee. In such event, however, Lessee shall remain liable to
Lessor hereunder, as in the case of any other default.
(b) Any proposed assignment or sub-lease shall be subject to the delivery
by Tenant to Landlord of the following documents:
1. In the event that the assignee or sub-lessee shall be a corporation, a copy
of the corporation's certificate of incorporation and the filing receipt of the
Secretary of State of the state in which said corporation was incorporated,
showing proof of incorporation of said corporation; and, if said corporation was
not incorporated under the laws of the State of New York, a certified copy of
the Certificate of Authority issued by the Secretary of State by the State of
New York, authorizing said corporation to conduct business in the State of New
York;
2. In the event that the assignee or sub-lessee shall be a partnership or a
limited partnership, a copy of its articles of partnership or limited
partnership and all amendments thereof or modifications thereto;
3. A certified copy of every Assumed Name Certificate of the assignee or
sub-lessee required to be filed with the Secretary of State of the State of New
York or the County Clerk of the County of Suffolk, as the case may be, pursuant
to Section 130 of the General Business Law of the State of New York;
4. An affidavit signed by an officer of the assignee or sub-lessee, if the
assignee or sub-lessee shall be a corporation; or by a general partner of the
assignee or sub-lessee, if the assignee or sub-lessee shall be a partnership or
limited partnership, certifying the names, residence addresses, residence phone
numbers and social security numbers of each principal of the assignee or
sub-lessee and the positions held by each of them in the assignee or sub-lessee
(including the percentage of interest held by each partner in the partnership or
limited partnership, and the offices, directorships and the number of shares of
stock held in any corporate assignee or sub-lessee) ;
5. A written instrument signed and acknowledged before a notary public by the
tenant and the assignee or sub-lessee, as appropriate, by which the faithful
performance of all of the terms, covenants, conditions and provisions of the
Lease have been assumed by the assignee or sub-lessee, with corporate seal
affixed to said instrument;
6. Proof of Federal Employers Identification Number assigned to the assignee or
sub-lessee by the U.S. Internal Revenue Service; and
7. Satisfactory proof of the sound financial credit and worthiness of the
proposed assignee and sub-lessee.
(c) The Lessor shall not unreasonably withhold its consent to any proposed
assignment or sub-lease which complies with sub-paragraph "b" hereof. The
Lessee's right to assign or sub-let shall be contingent on its not being in
default of any of the terms and conditions contained in this Lease on its part
to be performed.
(d) In the event an assignment or sub-letting of this Lease is granted it
shall be on the further condition that the assignee or sub-lessee deposit with
the Lessor an additional sum equivalent to one month's rent for the month next
ensuing the date of assignment or sub-letting pursuant to Schedule "A" hereof,
along with Lessor's legal fee in the sum of $400 for reviewing all of the
foregoing documents.
R18. HOLDING OVER: Any holding over after the expiration of the term of this
Lease or any renewal hereof shall be construed to be a tenancy from
month-to-month at a Minimum Annual Rent equal to twice the Minimum Annual Rent
(prorated on a monthly basis); and said tenancy shall otherwise be on the terms,
covenants, conditions, and provisions specified in this Lease, to the extent
that the foregoing shall be applicable.
R19. NO WAIVER: Failure of Lessor to insist upon the strict performance of any
provisions of this Lease, or to exercise any option or seek enforcement of any
rules and regulations, shall not be construed as a waiver for the future of any
provision, rule or option. The receipt by Lessor of rent, additional rent,
and/or other monies, with knowledge of the breach of any provision of this Lease
by Lessee, shall not be deemed a waiver of such breach. No provision of this
Lease shall be deemed to have been waived unless such waiver shall be in writing
and signed by Lessor. No payment by Lessee or receipt by Lessor of a lesser
amount than rent actually due shall be deemed to be other than on account of the
earliest rent then unpaid, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment as rent be deemed an accord and
satisfaction; and Lessor's right to recover the balance of such rent and/or
other monies due, or pursue any other remedy in this lease provided for. No
waiver by Lessor in respect to one Lessee shall constitute a waiver in favor of
any other Lessee in the Building in which the demised premises are located.
R20. WAIVER OF LIABILITY: Anything in this Lease to the contrary
notwithstanding, Lessee shall look solely to the estate and property of Lessor
in the land and buildings comprising the building and real property of which the
demised premises are a part, and subject to prior rights of any mortgagee of the
premises, for the collection of any judgment (or other judicial process)
requiring the payment of money by Lessor in the event of any default or breach
by Lessor with respect to any of the terms, covenants and conditions of this
Lease to be observed and/or performed by Lessor; and not other assets of Lessor
or any person or other entity comprising Lessor, shall be subject to levy,
execution or other procedures for the satisfaction of Lessee's remedies.
R21. INDEMNITY: (a) Lessee hereby indemnifies Lessor and shall be deemed to
forever hold Lessor harmless from all suits, actions, damages, liability and
expense in connection with loss of life, bodily or personal injury or property
damage arising from or out of any occurrence in, upon or at or from the demised
premises or any part thereof, or occasioned wholly or in part by any act or
omission of Lessee, its agents, contractors, employees, servants or invitees,
but nothing herein shall operate as an indemnification with respect to Lessor's
own acts;
(b) Lessee shall store its property in and shall occupy the demised
premises and all other portions of the Office Complex at its own risk, and
release Lessor, to the full extent permitted by law, from all claims of every
kind resulting in loss of life, personal or bodily injury or property damage;
(c) Lessor shall not be responsible or liable at any time for any loss or
damage to Lessee's merchandise, equipment, fixtures or other personal property
of Lessee or to any loss or damage to either the person or property of Lessor
that may be occasioned by or through the acts or omissions of persons occupying
adjacent, connecting or adjoining premises;
(d) Lessor shall not be responsible or liable for any defects, latent or
otherwise, in the building or any of the equipment, machinery, utilities,
appliances or apparatus therein, nor shall it be responsible or liable for any
injury, loss or damage to any person or to any property of Lessee or other
persons caused by or resulting from bursting breakage, or by or from plumbing,
sprinkler or other leakage, steam or snow or ice, running, backing up, seepage,
or the overflow of water or sewerage in any part of said premises or for any
injury or damage caused by or resulting from acts of God or the elements, or for
any injury or damage caused by resulting from any defect or negligence in the
occupancy, construction, operation or use of any of said premises, gilding,
machinery, apparatus, or equipment by any person or by or from the acts of or
any negligence of any occupant of the premises; and
(e) Lessee shall give prompt notice to Lessor in case of fire or accidents
in the demised premises or in the building of which the demised premises are a
part or of the defects therein or in any fixtures or equipment.
Anything in the preceding sub-paragraphs to the contrary notwithstanding,
nothing in said sub-paragraphs shall be deemed to relieve or release Lessor from
any liability caused by Lessor's own negligent or intentional acts.
In the event that Lessor shall be made a party to any litigation or
administrative proceedings commenced by or against Lessee, or against any third
party as a result of any matter arising under or as a result of this Lease, and
any act or acts on the part of Lessee relating thereto, Lessee shall forever
hold Lessor harmless from any and all damages other than those caused by
Lessor's fault; together with all costs, expenses, disbursements, and reasonable
attorney's fees incurred by Lessor in defending the aforesaid actions or
proceedings successfully In addition, Lessee shall pay and reimburse Lessor for
all costs, expenses, disbursements, and reasonable attorney's fees incurred or
paid by Lessor in enforcing any of the terms, covenants, conditions or
provisions of this Lease. The provisions of this paragraph shall also apply to
the period prior to the commencement of the term in the event that permission is
given to Lessee to do Lessee's construction work and install its fixtures prior
to the commencement of the term hereof.
R22. INSURANCE: (a) Lessee shall forthwith take out, duly and timely pay, all
premiums on, and maintain at Lessee's sole cost and expense, in the name of
Lessee but with Lessor being named therein as an additional insured, the
following policies of insurance:
1. COMPREHENSIVE GENERAL LIABILITY INSURANCE covering the demised premises on an
occurrence basis with minimum limits of liability in an amount equal to single
limits coverage of One Million ($1,000,000) Dollars for bodily injury, personal
injury or death to any one or more persons; Two Million ($2,000,000) Dollars in
respect to any one occurrence, and Two Hundred Fifty Thousand ($250,000) Dollars
with respect to damage to property from every cause whatsoever. Such policies
shall name the Lessor as additional insureds, and shall provide that the same
may not be canceled or terminated without at least thirty (30) days written
notice to Lessor by the insurance company or companies issuing such policy or
policies, and that no act or omission to act of the Lessee shall invalidate such
insurance as to the Lessor; and
2. WORKERS' COMPENSATION AND EMPLOYERS LIABILITY INSURANCE in accordance with
the laws of the State of New York;
3. FIRE INSURANCE in an amount adequate to cover the cost of replacement of all
improvements, fixtures and contents in the demised premises in the event of
fire, extended coverage, vandalism, malicious mischief and sprinkler leakage;
and
4. VANDALISM AND MALICIOUS MISCHIEF INSURANCE in the same amounts required for
the coverage of Lessor's property under sub-paragraph "(1)" above-described.
(b) Lessor shall have the right to carry any or all of the insurance
hereinabove provided for in the event that Lessee shall fail to duly and timely
comply with Lessee's obligations under sub-paragraph "(a)" of this paragraph
above-described; and in such event Lessee shall reimburse Lessor for the entire
cost of the insurance obtained by Lessor, as additional rent, within ten (10)
days after the submission to Lessee by Lessor of a xxxx therefor.
R23. INSURED PARTIES: WAIVER: NOTICE: All insurance policies required to be
obtained by Lessee under this Lease shall be issued by a company or companies
licensed to do business in the State of New York, none of which companies shall
be "excess carriers"; and the same shall contain endorsements that (a) such
insurance may not be canceled or amended with respect to Lessor without thirty
(30) days prior written notice by registered mail, return receipt requested, to
Lessor by the insurance company or companies; (b) Lessee shall be solely
responsible for payment of premiums for such insurance; (c) in the event of
payment of any loss covered by such policy, Lessor shall be paid first by the
insurance company or companies for Lessor's loss, as Lessor's interest may
appear; and (d) that no act of the Lessee will invalidate any such insurance as
to the interest of the Lessor thereunder.
If requested in writing by Lessor, Lessee shall include under said policies as a
named insured or an additional named insured or loss payee any other party or
parties as Lessor may designate.
Duplicate originals of all insurance policies required to be obtain by Lessee
under this Lease, together with proof of payment of all premiums thereon for at
least one (1) year in advance, shall be delivered to Lessor by Lessee within ten
(10) days hereof; and Lessee shall likewise deliver renewals of all policies and
similar proof of payment of premiums to Lessor at least thirty (30) days prior
to each anniversary date of the date of this Lease.
R24. TAX INCREASES:
(a) If, in any year during the term of this lease any taxes shall exceed
those existing in the Base Tax Year, Tenant shall pay as additional rent,
Tenant's proportionate share of the increase.
(b) Tenant shall pay all tax increases within ten (10) days of delivery by
Landlord to Tenant of Landlord's demand therefor, accompanied by a copy of the
tax xxxx.
(c) Landlord's failure to deliver to Tenant a statement showing Tenant's
liability for additional taxes for any year during the term shall neither
prejudice nor waive Landlord's right to deliver any such statement for any
subsequent year or include in said statement an amount of rent due from Tenant
for any increase in taxes during a previous year in which Landlord did not
provide Tenant with any such statement. Tenant's obligation to pay rent and
taxes as provided herein with respect to the last year of the term shall survive
the expiration of the term.
(d) Tenant shall in all events pay the full amount of any increases in
taxes which may result from any improvements made by or on behalf of Tenant.
Taxes shall be apportioned at the commencement and expiration of the term.
(e) "Taxes" shall mean any and all taxes, assessments, sewer and water
rents, rates and charges, license fees, impositions, liens, fees and all other
municipal and governmental charges of any nature whatsoever (except only
inheritance and estate taxes and income taxes not herein expressly agreed to be
paid by Tenant) , whether general or special, ordinary or extraordinary,
foreseen or unforeseen, which may presently or in the future become due or
payable or which may be levied, assessed or imposed by any taxing authority on
or with respect to all or any part of the property, or upon the estate or
interest of Landlord in the property or any part thereof, including, without
limitation, all taxes and assessments for improving any streets, alleys,
sidewalks, sidewalk vaults and alley vaults, if any.
(f) "Base Tax Year" shall be deemed the 1998/99 Town, County and School
tax, inclusive of all special districts.
(g) "Tenant's Proportionate Share" shall be deemed to be 3.06% of the total
taxes assessed against the property.
(h) For the purposes of this paragraph, the term "Property" shall mean the
entire real estate of which the Premises are a part including, without
limitation, all land, buildings, parking facilities (existing or hereafter
acquired, whether or not the same are contiguous to the Building) and the
Premises.
R25. ACCEPTANCE AND OCCUPANCY OF THE PREMISES:
(a) Landlord makes no representations as to the condition of the Premises.
Tenant represents that it has inspected the Premises and agrees to accept the
same "AS IS".
(b) The taking of occupancy of the whole or any part of the premises by
Tenant shall be conclusive evidence, as against Tenant, that Tenant accepts
possession of same and that the Premises so occupied and the property were in
good and satisfactory condition at the time such occupancy was so taken.
(c) Landlord shall not be required to provide Tenant with possession of or
keys to the Premises until Tenant shall have delivered to Landlord certificates
of insurance as required under Paragraphs 22 and 23 hereof. Landlord's refusal
to grant Tenant occupancy of the Premises in accordance with the foregoing shall
not be a defense of Tenant against its obligation to pay rent.
R26. LANDLORD'S SERVICES & COMMON AREA MAINTENANCE CHARGES:
(a) Landlord agrees to provide, at its own cost and expense: heating,
ventilating, air conditioning units and ducts ready for use.
(b) Tenant, its customers and invitees, shall have the non-exclusive
privilege to use the common areas appurtenant to the Building of which the
demised Premises are a part throughout the term of this Lease. Landlord reserves
the right to promulgate reasonable rules and regulations with respect to the use
of the parking and common areas, driveways, entrances and exits and Landlord
shall have the exclusive right, at any time during the term of this Lease, or
any extended term, to alter, modify, or move the parking areas or facilities or
driveways, entrances or exits as now constructed. Landlord shall keep, or shall
cause to be kept, the parking and common areas, entrances, exits and driveways
adequately illuminated and in good condition and repair, free from dirt, snow
and ice. Landlord shall be responsible for, at its sole cost and expense, the
following: maintaining, cleaning and lighting the parking area, sidewalk and
other common areas; painting, pointing and repairing of common building
facilities and canopy areas; costs and expenses of planting and replanting and
replacing flowers and landscaping; water and sewerage charges; central garbage
and refuse removal (from areas designated by the Landlord, and all garbage and
refuse shall be kept in covered cans); snow removal, premium for liability,
property damage, fire and workers' compensation insurance, wages, unemployment
taxes, social security taxes, personal property taxes; fees for required
licenses and permits and supplies.
R27. TENANT'S SERVICES:
(i) All interior decorating.
(ii) Replace light bulbs as necessary.
(iii) Plastic mats to be placed under all chairs so as to protect carpeting.
(iv) Comply with all laws, orders, ordinances and with directions of public
officers thereunder, with all applicable Board of Fire Insurance Underwriters
regulations and other requirements and with all notices from Landlord's
mortgages respecting all matters of occupancy, condition or maintenance of the
demised premises, whether such orders or directions shall be directed to Tenant
or Landlord, and Tenant shall hold Landlord harmless from any and all costs or
expenses on account thereof. Tenant shall procure and maintain all licenses and
permits legally necessary for the operation of Tenant's business and allow
Landlord to inspect them on request.
(v) Fire extinguishers as required throughout the demised premises.
R27. SIGNS: The Landlord shall erect and maintain a suitable professional
directory, either affixed to the building or freestanding, at Landlord's sole
option of a design, size and lettering usually customarily used by professional
offices. Tenant, its assignees and/or subtenants (provided written consent has
been obtained from the Landlord as provided herein) may affix their own name to
such professional directory of the same style, design and lettering used by
other tenants in the building, but the cost and expense of such sign and the
affixing of same shall be borne solely by the Tenant. Notwithstanding anything
contained herein to the contrary, Landlord must approve the affixing of any
subtenant's signs. Tenant shall have the right to place a sign on the exterior
of the building at their sole cost and expenses, provided it first obtains the
necessary permits from all municipal agencies having jurisdiction thereof. The
Landlord's consent for such sign shall only be necessary as to the location of
the sign, which consent shall not be unreasonably withheld.
R28. TOXIC WASTE: Tenant agrees that any refuse or waste liquids, solids or
vapors (flammable or otherwise) or residue thereof or any other substance which
are deemed to be toxic or hazardous by any federal, state and/or municipal
authority having jurisdiction thereof, which Tenant shall use in connection with
the course of its occupancy of the premises, shall be used, stored and disposed
of in accordance with the laws, rules and regulations of such federal, state
and/or municipal authority having jurisdiction thereover, and Tenant agrees that
the disposal of such solid, liquid or vaporous toxic or hazardous waste, or the
residue thereof, shall be the sole responsibility of Tenant. Tenant agrees to
hold Landlord, its officers, directors, stockholders, principal and/or their
successors or assigns, free and harmless in all respects from any and all claims
whatsoever, of any individual, corporation, partnership or governmental entity,
resulting from Tenant's improper disposal, use or storage of such solid, liquid
or vaporous toxic or hazardous waste materials, during the term of this lease
and any and all extensions or renewals hereof, including reasonable attorneys'
fees and disbursements in the defense of any suit of action resulting therefrom.
This clause shall survive the expiration of Tenant's occupancy of the premises.
Landlord represents that the premises are free of hazardous materials. Landlord
shall hold harmless, the Tenant for any environmental related liability cause,
or existing prior to the commencement of the terms of this Lease.
R29. Whenever the Landlord's consent is required in this Lease, same shall, not
be unreasonably withheld or delayed.
SCHEDULE A
RENT SCHEDULE
-------------
YEAR OF BASIC TERM REQUIRED ANNUAL RENT PERMITTED MONTHLY
------------------ -------------------- ------------------
PAYMENT
-------
1st Year: $70,900.50 $5,908.37
2nd Year: 73,736.52 6,144.71
3rd Year: 76,685.98 6,390.45
4th Year: 79,753.40 6,646.11
5th Year: 82,943.55 6,911.96
Anything to the contrary contained herein notwithstanding, the Landlord shall
not be required to provide occupancy and possession of the demised premises to
the Tenant until November 1, 1999, and the Tenant's obligation to pay rent shall
commence on November 1, 1999. Any advance rental payments made by the Tenant to
the Landlord shall first be applied to the November, 1999 rent. The Landlord
shall, however, use its best efforts to complete its improvements to the
premises so as to provide occupancy to the Tenant on or before October 1, 1999.
SUPPLEMENTAL RIDER
------------------
The Landlord shall, at its sole cost and expense, complete the improvements
to the demised premises as set forth on the floor plan annexed hereto as Exhibit
A. Such improvements shall be completed by November 1, 1999.
OPTION TO RENEW
---------------
1. Subject to the following terms and conditions set forth below, Landlord
hereby grants to Tenant an option to renew ("Option") this lease for an
additional term of five (5) years:
a. Tenant shall deliver to Landlord by certified mail, return receipt requested,
at least two hundred seventy (270) days prior to the expiration of the term of
this lease, written notice of Tenant's exercise of the Option. Delivery shall be
deemed to have been made on the date of mailing of said notice;
b. Tenant shall not be in default under any of the terms of this lease beyond
the applicable grace period, if any; at the time of the delivery of the renewal
notice;
2. The Option is personal and may be exercised solely by the Tenant herein, and
after such exercise, Tenant shall have no further options to renew or extend the
term of this lease.
3. Time shall be of the essence with regard to Tenant's delivery of the exercise
notice required by Paragraph l.a. hereof. If Tenant shall fail to deliver to
Landlord Tenant's exercise notice in each instance, exactly as and when required
by said paragraph, such Option shall terminate immediately and shall have no
further force or effect. The parties acknowledge that they have fully negotiated
the terms and provisions of this Option to renew. Tenant acknowledges and agrees
that the Landlord has granted Tenant the Option in consideration for Tenant's
agreement that the same shall be strictly construed and enforced and that in the
event the Option shall terminate as provided above, Tenant hereby irrevocably
waives Tenant's right to commence an action, either by law or in equity, to
effectuate the Option.
4. The required minimum base rent for the option period shall be as follows:
YEAR OF OPTION TERM REQUIRED ANNUAL RENT PERMITTED
MONTHLY PAYMENT
1ST YEAR $86,261.30 $7,198.44
2ND YEAR 89,711.74 7,475.98
3RD YEAR 93,300.21 7,775.02
4TH YEAR 97,032.21 8,086.02
5TH YEAR 100,913.50 8,409.45
/s/
-------------------------------------
LANDLORD
/s/
-------------------------------------
TENANT
SECOND LEASE CONSOLIDATION
AND
EXTENSION AGREEMENT
SECOND LEASE CONSOLIDATION AND EXTENSION AGREEMENT, dated as of March, 2002
(the "Amendment") by and between 4250 VETS HIGHWAY LLC, New York limited
liability company, whose address is c/o GMM Realty LLC, 00 Xxxxxxx Xxxx,
Xxxxxxx, Xxx Xxxx 00000 (.hereinafter called "Landlord") and AMERICAN PORTFOLIO
FINANCIAL SECURITIES, INC, a New York corporation (f/k/a American Portfolios,
Inc.), having a place of business located at 0000 Xxxxxxxx Xxxxxxxx Xxxxxxx,
Xxxxxxxx, Xxx Xxxx (hereinafter called "Tenant").
WITNESSETH
WHEREAS, Landlord and Tenant entered into that certain Agreement of Lease,
dated November 1, 1999 (the "Original Lease"), for approximately 4,297 rentable
square feet (the "Initial Premises") in the building known as 0000 Xxxxxxxx
Xxxxxxx, Xxxxxxxx, Xxx Xxxx (hereinafter called the "Building"); and
WHEREAS, Tenant rented an additional 3,544 rentable square feet (the "First
Additional Space") in the Building pursuant to that certain Lease Consolidation
and Extension Agreement, dated as of December 1, 2000 (the "First Extension
Agreement", and together with the "Original Lease", and this Second Lease
Consolidation and Extension Agreement, the "Lease"); and
WHEREAS, Landlord and Tenant desire to amend the Lease to, among other
things, extend the Lease term and to provide for the leasing by Tenant of an
additional approximate 2,982 rentable square feet located on the fourth floor of
the Building.
ACCORDINGLY, intending to be legally bound, the parties hereto agree as
follows:
1. Capitalized Terms. To the extent not otherwise defined herein,
capitalized terms shall have the meaning given them in the Lease.
2. Extension of Term.
(a) Notwithstanding anything to the contrary contained in the Lease, the
parties hereto agree to extend the term of the Lease, as applicable, for an
additional one (1) year five (5) month period, terminating on May 31, 2007,
unless earlier terminated under the terms of the Lease.
(b) (i) Tenant agrees to continue to pay all amounts due as Required Annual
Rent and additional rent under the Original Lease and the First Extension
Agreement, as and when such amounts are due, with respect to the Initial
Premises and the First Additional Space. (ii) Notwithstanding the failure of
Tenant to have provided notice as provided under the applicable provisions of
the Original Lease and the Extension Agreement, Tenant shall be deemed to have
exercised the option provided for in the Original Lease and the Extension
Agreement through and including the Second Expiration Date, as hereinafter
defined, and, subject to the provisions of paragraph 3(c) herein, Tenant further
agrees to pay such amounts that are provided for under the Original Lease and
the First Extension Agreement with respect to the option period through and
including the Second Expiration Date.
3. Second Additional Space.
(a) Landlord agrees to lease to Tenant, and Tenant agrees to lease from
Landlord, an additional approximate 2,982 square feet located on the fourth
floor of the Building, as more particularly outlined on the attached Exhibit A
("Second Additional Space").
(b) Landlord agrees to rent the Second Additional Space to Tenant for a
term of five (5) years commencing May 15, 2002 (the "Second Commencement Date")
and expiring on May 31, 2007 (the "Second Expiration Date"), unless earlier
terminated under the terms of the Lease (the "Second Additional Space Term").
The rental (the "Second Additional Space Rent") for each Lease Year of the
Second Additional Space shall be as follows:
Lease Year Required Annual Rent Permitted Monthly Payment
---------- -------- ----------- -------------------------
First $53,676.00 $4,473.00
Second $55,823.04 $4,651.92
Third $58,055.96 $4,838.00
Fourth $60,378.20 $5,031.52
Fifth $62,793.33 $5,232.78
Payments of Second Additional Space Rent shall be made monthly ("Monthly
Installments") together with payments of rent under the Lease.
(c) For purposes of this Amendment, the term Lease Year shall mean the
consecutive twelve calendar month period commencing with the Second Commencement
Date. In the event rent is due for any part month period, such rent shall be pro
rated on a per diem basis.
(d) Notwithstanding anything to the contrary contained herein, monthly
payments of the Second Additional Space Rent for the second, fourth, sixth and
eight month of the first Lease Year shall be deferred (the "Deferred Payments"),
and Tenant shall not be obligated to remit such payments to Landlord when same
falls due. The total amount of the Deferred Payments shall instead be paid to
Landlord, together with interest at the rate of eight percent (8%) per annum, in
equal monthly payments of $1,639.40 (the "Deferred Monthly Amounts") together
with the Monthly Installments during each month of the second Lease Year.
Failure to timely pay the Deferred Monthly Amounts shall be considered a default
under the Lease and shall entitle Landlord to exercise any and all rights arid
remedies provided for therein.
(e) Notwithstanding anything to the contrary contained herein, in the
Original Lease and in the First Extension Agreement, the aggregate Required
Annual Rent (exclusive of additional rent) for the Initial Promises, the First
Additional Space and the Second Additional Space, for each Lease Year through
and including the Option period, as applicable, shall be as follows:
Lease Year Required Annual Rent Permitted Monthly Payment
---------- -------------------- -------------------------
First $193,609.56 $16,134.13
Second $201,353.94 $16,779.50
Third $209,408.10 $17,450.68
Fourth $217,784.42 $18,148.70
Fifth $226,495.80 $18,874.65
OPTION PERIOD*
First $235,555.63 $19,629.64
Second $244,977.86 $20,414.82
Third $254,776.97 $2l, 231.41
Fourth $264,968.05 $22,080.67
Fifth $275,566.77 $22,963.90
* as applicable
Landlord and Tenant agree that the foregoing schedule of Required Annual
Rent shall supersede any Statement of Required Annual Rent in the Original Lease
or the First Extension Agreement with respect to each Lease Year through and
including the Option period, as applicable.
4. Services. Tenant agrees to pay for the electricity service to the Second
Additional Space at a rate of $2.25 per square foot ($559.13 per month) to be
paid along with the Monthly Installment for such month. Said charges shall be
collectible as additional rent. In the event that the cost to Landlord of said
electric service exceeds said sum per square foot, then the Tenant will likewise
pay any such increase as additional rent throughout the Second Additional Space
Term.
5. Delivery of Additional Space. Landlord shall deliver the Second
Additional Space to Tenant vacant arid broom clean, and shall perform the work
described on the Work Letter attached hereto as Exhibit B, at its sole cost and
expense. To the extent Tenant desires additional work to be performed at the
Second Additional Space prior to commencement of the Second Additional Space
Term, same shall be subject to Landlord's prior written consent, and shall be
undertaken by Tenant at Tenant's sole cost and expense, in accordance with the
provisions of the Lease.
6. Tenant's Proportionate Share. Paragraph R24(g) of the rider to the
Original Lease is hereby amended to read as fo1low:
`"Tenant's Proportionate Share" shall be deemed to be 7.3% of the
total taxes assessed against the property."
7. No Modifications. Except as modified herein, all of the terms arid
conditions of the Lease shall remain in full force and effect and shall apply
equally, as applicable, and are incorporated herein by reference, with respect
to the Second Additional Space. At the date hereof, Tenant has no claims or
offsets under Lease and Landlord is not in default under the terms of the Lease.
Notwithstanding the foregoing, the number of years of the option provided for in
the introductory portion of paragraph 1 to the Option to Renew Rider attached to
the Original Lease is hereby deleted and, except with respect to those portions
of the hereinafter mentioned paragraphs specifically provided to be applicable
hereunder in paragraph 2(b) above, paragraph 4 of the Option to Renew Rider
attached to the Original Lease and paragraph 7C of the First Extension
Agreement, are hereby deleted in their entirety.
8. Option to Renew. Subject to the terms and conditions of the Lease, as
modified herein, and so long as Tenant is not in default under the Lease, Tenant
shall have the option to renew the lease of the Initial Premises, the First
Additional Space and the Second Additional Space, in the aggregate only, for an
additional five (5) year period commencing on April 1, 2007 and expiring on
March 31, 2012 (the "Option Period"). The rental during the Option period for
each of the Initial Premises, the First Additional Space and the Second
Additional Space shall be as provided for in paragraph 3(c) above. The
provisions of paragraphs 1a, lb, 2 and 3 of the Option to Renew Rider attached
to the Original Lease, and the provisions of paragraph 7B of the First Extension
Agreement are Incorporated herein in their entirety as if same had been
expressly provided for herein.
9. Broker. Each party represents and warrants to the other that no real
estate broker other than GMM Realty LLC (the "Broker") brought about this
transaction. The Broker shall be paid its commission in connection with this
Agreement pursuant to a separate agreement between the Landlord and Broker. Each
party agrees to indemnify (the "Indemnifying Party") and hold the other harmless
from and against all causes of action, liabilities and costs (including
reasonable attorneys's fees) arising out of a claim for a commission by any
other broker purporting to have acted on behalf of the Indemnifying Party.
10. Amendment to Section R11. Subsection A. of Section R11 of the Lease is
hereby amended by adding a new sentence at the end of such subsection as
follows: "In the event Lessor fails to maintain and repair the HVAC system,
plumbing leading to premises and sewerage facilities as required by this Lease
after fifteen (15) days notice from Lessee advising of such failure, Lessee may
cause such repair to be performed. The cost of such repair shall be paid to
Lessee by Lessor within fifteen (15) days of receipt of such invoice. In the
event such invoice is not paid within such fifteen (15) day period, such amount
shall thereafter bear interest at twelve percent (12%) per annum until paid."
11. Counterparts. This Amendment may be executed and delivered by the
undersigned in counterparts.
4250 VETS HIGHWAY LLC, Landlord
By:
By:/s/
------------------------------
Its:
-----------------------------
AMERICAN PORTFOLIO FINANCIAL
SECURITIES, INC., Tenant
By:/s/
------------------------------
Its:
-----------------------------
AMENDMENT TO LEASE
THIS AGREEMENT, made as of the 1st day of April, 2003, by and between CAF
VETS, LLC, having offices at 0000 Xxx Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000
(hereinafter referred to as "Owner"), and AMERICAN PORTFOLIOS HOLDINGS, INC.,
having offices at 0000 Xxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxx 00000
(hereinafter referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, Tenant currently occupies that certain premises comprising
approximately 7,841 rentable square feet on the fourth floor, east wing, known
as Suites 400A and 400B (the "Demised Premises"), in the building located at
0000 Xxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (the "Building"),
pursuant to a certain Agreement of Lease dated November, 1999 between 4250 VETS
HIGHWAY LLC, as Owner, and AMERICAN PORTFOLIOS HOLDINGS, INC. as Tenant, which
Agreement of Lease was consolidated and extended pursuant to a certain Lease
Consolidation and Extension Agreement dated December 1, 2000 between Owner and
Tenant (the Agreement of Lease and Lease Consolidation and Extension Agreement
are hereinafter collectively referred to as the "Lease") ; and
WHEREAS, Owner is the owner of the Building and is the
successor-in-interest to 4250 VETS HIGHWAY LLC, as Owner, under the Lease; and
WHEREAS, Tenant is desirous of leasing certain additional premises
comprising approximately 2982 rentable square feet on the fourth floor, east
wing, known as Suite 400C in the Building as depicted on Exhibit "A" attached
hereto and made a part hereof (the "Additional Space"); and
WHEREAS, Tenant is desirous of leasing certain additional premises
comprising approximately 1687 rentable square feet on the fourth floor, east
wing, known as Suite 400D in the Building as depicted on Exhibit "B" attached
hereto and made a part hereof (the "Second Additional Space"); and
WHEREAS, Tenant is desirous of leasing certain additional premises
comprising approximately 2997 rentable square feet on the fourth floor, east
wing, known as Suite 400E in the Building as depicted on Exhibit "C" attached
hereto and made a part hereof (the "Third Additional Space"); and
WHEREAS, Owner is desirous of leasing the Additional Space, Second
Additional Space and Third Additional Space to the Tenant upon the terms and
conditions set forth herein and the terms and conditions of the Lease.
NOW, THEREFORE, in consideration of Ten and 00/100 ($10.00) Dollars and
other good and valuable consideration and the mutual covenants contained herein,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Leasing of Additional Space. Effective on the date of this Amendment,
Owner shall lease to Tenant and Tenant hereby hires from Owner the Additional
Space.
2. New Demised Premises. Effective on the date of this Amendment, the
Demised Premises and Additional Space shall hereinafter be referred to as the
"New Demised Premises".
3. Term. The term of the Lease for the New Demised Premises shall commence
on April 1, 2003 (the "Commencement Date") and terminate on March 31, 2008 (the
"Expiration Date") or on such earlier date upon which said term may expire or be
canceled or terminated pursuant to any of the conditions or covenants of the
Lease or pursuant to law.
4. Rent. Effective on the Commencement Date, the Rent Schedule for base
rent and electric for the New Demised Premises is set forth on Exhibit "D"
attached hereto and made a part hereof.
5. Base Tax. The Base Tax for the New Demised Premises shall mean the taxes
assessed for the 1998/99 Tax year.
6. Tenant's Proportionate Share. Effective on the Commencement Date, the
Tenant's Proportionate Share for the New Demised Premises shall be 7.30%.
7. Preparation for Occupancy. The Supplemental Rider to Lease is hereby
amended by deleting same and replacing with the following:
"Tenant accepts the New Demised Premises "AS IS" and in the existing
condition.
8. Leasing of Second Additional Space. Effective on June 1, 2003, Owner
shall lease to Tenant and Tenant hereby hires from Owner the Second Additional
Space.
9. Second New Demised Premises, Extension of Term, Base Rent and Electric,
and Tenant's Proportionate Share. Effective on June 1, 2003, the Second
Additional Space shall become part of the New Demised Premises and shall
hereinafter be referred to as the "Second New Demised Premises". The Lease term
shall be extended for a period of five (5) years from June 1, 2003 to May 31,
2008 with the Rent Schedule for base rent and electric for the Second New
Demised Premises as set forth on Exhibit "E" attached hereto and made a part
hereof and Tenant's Proportionate Share increased to 8.62%.
10. Preparation for Occupancy. The Second New Demised Premises shall be
altered or initially prepared for Tenant's occupancy in the manner, and subject
to the terms, conditions and covenants, set forth in Exhibit "F". The
facilities, materials and work so to be furnished, installed and performed in
the Second New Demised Premises by Owner at its expense are hereinafter and in
Exhibit "F" referred to as "Owner's Work". Such other installations, materials
and work which may be undertaken by or for the account of Tenant to equip,
decorate and furnish the Second New Demised Premises for Tenant's occupancy,
commonly called "finishing trades work", are hereinafter and in Exhibit "F"
called "Tenant's Work". Owner shall afford Tenant and its employees, agents and
contractors access to the Second New Demised Premises, at reasonable times and
at Tenant's sole risk and expense, for the purposes of inspecting and verifying
the performance of Owner's Work and of making preparations for and performing or
inspecting and verifying the performance of Tenant's Work. If and to the extent
that Tenant's Work is not performed by Owner for Tenant's account, Tenant and
its contractors shall be entitled to such rights, privileges and immunities, and
shall be subject to such obligations, restrictions and reservations, with
respect to the performance of Tenant's Work as may be provided in Exhibit "F"
with respect thereto. To the extent that the Owner's Work is substantially
completed after June 1, 2003, all rights and remedies of both parties hereunder
shall be suspended and all dates shall be amended herein to reflect a full five
(5) years from the date of substantial completion and delivery of possession of
the Second New Demised Premises if later than June 1, 2003. Owner shall perform
the Owner's Work in accordance with Exhibit "F", provided, however, that Owner
shall have the right to make any changes required by any governmental department
or bureau having jurisdiction of the Second New Demised Premises. Said work
shall be performed by Owner only once, it being understood that Owner's
obligation to perform the work is a single non-recurring obligation.
11. Leasing of Third Additional Space. Effective on August 1, 2003, Owner
shall lease to Tenant and Tenant hereby hires from Owner the Third Additional
Space.
12. Modification of Third Additional Space. Between the date hereof and
June 1, 2003, the Third Additional Space depicted on Exhibit "C" attached hereto
and made a part hereof may be modified by the parties hereto and shall be made
final prior to June 1, 2003 and signed off by the parties hereto. In such event,
the final plans as agreed to by the parties hereto for the Third Additional
Space shall be deemed substituted in the place and stead of Exhibit "C" hereto.
If the parties hereto cannot agree on the final plans for the Third Additional
Space by June 1, 2003, and if said date is not extended, then the Third
Additional Space shall not become part of this Amendment nor rented by Owner or
hired by Tenant.
13. Third New Demised Premises, Extension of Term, Base Rent and Electric,
and Tenant's Proportionate Share. Except in the event the Third Additional Space
shall not be rented as provided for in paragraph 12, effective on August 1,
2003, the Third Additional Space shall become part of the Second New Demised
Premises and shall hereinafter be referred to as the "Third New Demised
Premises". The Lease term shall be extended for a period of five (5) years from
August 1, 2003 to July 31, 2008 with the Rent Schedule for base rent and
electric for the Second New Demised Premises as set forth on Exhibit "G"
attached hereto and made a part hereof and Tenant's Proportionate Share
increased to 10.69%.
14. Preparation for Occupancy. The Third New Demised Premises shall be
altered or initially prepared for Tenant's occupancy in the manner, and subject
to the terms, conditions and covenants, as agreed to by the parties hereinafter
and to be set forth in a writing signed by the parties on the date the plans are
made final as provided in paragraph 12 hereinabove. Said writing shall be
annexed hereto as Exhibit "H". The facilities, materials and work so to be
furnished, installed and performed in the Third New Demised Premises by Owner at
its expense are hereinafter and in Exhibit "H" to be attached hereto, referred
to as "Owner's Work". Such other installations, materials and work which may be
undertaken by or for the account of Tenant to equip, decorate and furnish the
Third New Demised Premises for Tenant's occupancy, commonly called "finishing
trades work", are hereinafter and in Exhibit "H" called "Tenant's Work". Owner
shall afford Tenant and its employees, agents and contractors access to the
Third New Demised Premises, at reasonable times and at Tenant's sole risk and
expense, for the purposes of inspecting and verifying the performance of Owner's
Work and of making preparations for and performing or inspecting and verifying
the performance of Tenant's Work. If and to the extent that Tenant's Work is not
performed by Owner for Tenant's account, Tenant and its contractors shall be
entitled to such rights, privileges and immunities, and shall be subject to such
obligations, restrictions and reservations, with respect to the performance of
Tenant's Work as may be provided in Exhibit "H" with respect thereto. To the
extent that the Owner's Work is substantially completed after August 1, 2003,
all rights and remedies of both parties hereunder shall be suspended and all
dates shall be amended herein to reflect a full five (5) years from the date of
substantial completion and delivery of possession of the Third New Demised
Premises if later than August 1, 2003. Owner shall perform the Owner's Work in
accordance with Exhibit "H", provided, however, that Owner shall have the right
to make any changes required by any governmental department or bureau having
jurisdiction of the Third New Demised Premises. Said work shall be performed by
Owner only once, it being understood that Owner's obligation to perform the work
is a single non-recurring obligation.
15. Deferred Payment for Tenant's Upgrades. Notwithstanding anything to the
contrary contained herein, Tenant shall be permitted to defer the payment for
the costs of the Tenant upgrades to the Additional Space in the amount of
$12,604.73 ("Tenant Upgrades"). The deferred payment for the Tenant Upgrades
shall be deemed additional rent hereunder and shall be paid to the Owner
together with the then current rent and additional rent in twelve (12) equal
monthly payments in the amount of $1,096.47 commencing April 1, 2004 and monthly
thereafter. Said amount includes interest at the rate of 8% per annum. A default
in the payment for the Tenant Upgrades hereunder shall be a default under the
Lease.
16. Option to Renew. Owner, at the option of the Tenant, covenants to renew
this Lease for a five (5) year term under the same terms and conditions, except
as to Fixed Rent, provided the Tenant has fully performed the agreements, terms
and conditions herein set forth and provided that the Tenant shall give the
Owner notice in writing by certified mail of Tenant's election to renew at least
nine (9) months before the Expiration Date of the initial term of this Lease.
The Fixed Rent for the option period shall be as provided on Exhibit "I". The
foregoing option shall be deemed irrevocably waived unless exercised in strict
accordance with the terms and conditions of this paragraph. This option to renew
is for the use and benefit of the Tenant named hereinabove only and shall not be
exercisable by any assignee or subtenant of this Lease without the written
consent of Owner, which may be arbitrarily withheld in this instance.
17. Additional Security Deposit. On August 1, 2003, Tenant shall deposit
with Owner the sum of $23,074.00, bringing the total security deposit to a sum
of $34,890.75, representing one and one half (1 1/2) month's current base rent
and electricity charges under for the Third New Demised Premises.
18. Broker. Tenant represents that it has dealt with no broker in
connection with the negotiation of this Amendment to Lease and that insofar as
Tenant is aware, no broker was responsible for or participated in the
procurement of this Amendment to Lease. Tenant shall indemnify and hold harmless
Owner from and against any claims, including reasonable attorneys' fees for
broker's commissions or similar compensation brought by any party in connection
with this Amendment to Lease.
19. Full Force and Effect. Except as otherwise modified herein, the terms,
conditions and obligations set forth in the and Lease shall remain unchanged and
unaffected and in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
CAF VETS, LLC
BY /s/ Xxxxxx X. Xxxxxx
------------------------
XXXXXX X. XXXXXX, MEMBER
AMERICAN PORTFOLIO FINANCIAL
SECURITIES, INC.
BY /s/
------------------------
President
AMERICAN PORTFOLIOS HOLDINGS, INC.
BY /s/ Xxx X. Xxxxxx
------------------------
Xxx X. Xxxxxx
EXHIBIT "D"
RENT SCHEDULE
AMERICAN PORTFOLIO FINANCIAL SECURITIES, INC.
SUITE 400C
---------------- ---------------- --------------- --------------- -------------- ---------------- ---------------
Year Annual Base Monthly Base Annual Monthly Annual Base Monthly Base
Rent Rent Electric Electric Rent and Rent and
Electric Electric
---------------- ---------------- --------------- --------------- -------------- ---------------- ---------------
1 $193,609.56 $16,134.13 $24,365.25 $2,030.43 $217,974.81 $18,164.56
---------------- ---------------- --------------- --------------- -------------- ---------------- ---------------
2 $201,353.94 $16,779.49 $24,365.25 $2,030.43 $225,719.19 $18,809.93
---------------- ---------------- --------------- --------------- -------------- ---------------- ---------------
3 $209,408.10 $17,446.16 $24,365.25 $2,030.43 $233,773.35 $19,481.11
---------------- ---------------- --------------- --------------- -------------- ---------------- ---------------
4 $217,784.42 $18,148.70 $24,365.25 $2,030.43 $242,149.67 $20,179.13
---------------- ---------------- --------------- --------------- -------------- ---------------- ---------------
5 $226,495.80 $18,874.65 $24,365.25 $2,030.43 $250,861.05 $20,905.08
---------------- ---------------- --------------- --------------- -------------- ---------------- ---------------
EXHIBIT "E"
RENT SCHEDULE
AMERICAN PORTFOLIO FINANCIAL SECURITIES, INC.
SUITE 400D
---------------- ---------------- --------------- --------------- -------------- ---------------- ---------------
Year Annual Base Monthly Base Annual Monthly Annual Base Monthly Base
Rent Rent Electric Electric Rent and Rent and
Electric Electric
---------------- ---------------- --------------- --------------- -------------- ---------------- ---------------
1 $225,180.00 $18,765.00 $28,147.50 $2,345.62 $253,327.50 $21,110.62
---------------- ---------------- --------------- --------------- -------------- ---------------- ---------------
2 $234,187.20 $19,515.60 $28,147.50 $2,345.62 $262,334.70 $21,861.22
---------------- ---------------- --------------- --------------- -------------- ---------------- ---------------
3 $243,554.69 $20,296.26 $28,147.50 $2,345.62 $271,702.19 $22,641.84
---------------- ---------------- --------------- --------------- -------------- ---------------- ---------------
4 $253,296.88 $21,108.07 $28,147.50 $2,345.62 $281,444.38 $23,453.69
---------------- ---------------- --------------- --------------- -------------- ---------------- ---------------
5 $263,428.75 $21,952.39 $28,147.50 $2,345.62 $291,576.25 $24,298.02
---------------- ---------------- --------------- --------------- -------------- ---------------- ---------------
EXHIBIT "F"
WORK LETTER
-----------
SECOND NEW DEMISED PREMISES
Owner shall partition the Second New Demised Premises in accordance with
floor plans, paint the Second New Demised Premises with building standard paint,
color as selected by Tenant, and install new carpet in the Second New Demised
Premises with building standard carpet, color as selected by Tenant.
EXHIBIT "G"
RENT SCHEDULE
AMERICAN PORTFOLIO FINANCIAL SECURITIES, INC.
SUITE 400E
---------------- ------------------ --------------- -------------- -------------- ---------------- -----------------
Year Annual Base Rent Monthly Base Annual Monthly Annual Base Monthly Base
Rent Electric Electric Rent and Rent and
Electric Electric
---------------- ------------------ --------------- -------------- -------------- ---------------- -----------------
1 $279,126.00 $23,260.50 $34,890.75 $2,907.56 $314,016.75 $26,168.06
---------------- ------------------ --------------- -------------- -------------- ---------------- -----------------
2 $290,291.04 $24,190.92 $34,890.75 $2,907.56 $325,181.79 $27,098.48
---------------- ------------------ --------------- -------------- -------------- ---------------- -----------------
3 $301,902.68 $25,158.55 $34,890.75 $2,907.56 $336,793.43 $28,066.11
---------------- ------------------ --------------- -------------- -------------- ---------------- -----------------
4 $313,978.79 $26,164.90 $34,890.75 $2,907.56 $348,869.54 $29,072.46
---------------- ------------------ --------------- -------------- -------------- ---------------- -----------------
5 $326,537.94 $27,211.49 $34,890.75 $2,907.56 $361,428.69 $30,119.05
---------------- ------------------ --------------- -------------- -------------- ---------------- -----------------
EXHIBIT "H"
WORK LETTER
-----------
THIRD NEW DEMISED PREMISES
Owner shall partition the Third New Demised Premises in accordance with
floor plans, paint the Third New Demised Premises with building standard paint,
color as selected by Tenant, and install new carpet in the Third New Demised
Premises with building standard carpet, color as selected by Tenant.
EXHIBIT "I"
RENT SCHEDULE
AMERICAN PORTFOLIO FINANCIAL SECURITIES, INC.
SUITE 400A, B, C, D & E
---------------- ------------------ --------------- -------------- -------------- ---------------- -----------------
Year Annual Base Rent Monthly Base Annual Monthly Annual Base Monthly Base
Rent Electric Electric Rent and Rent and
Electric Electric
---------------- ------------------ --------------- -------------- -------------- ---------------- -----------------
1 $339,599.46 $28,299.96 $34,890.75 $2,907.56 $374,490.24 $31,207.52
---------------- ------------------ --------------- -------------- -------------- ---------------- -----------------
2 $353,183.44 $29,431.95 $34,890.75 $2,907.56 $388,074.19 $32,339.51
---------------- ------------------ --------------- -------------- -------------- ---------------- -----------------
3 $367,310.77 $30,609.23 $34,890.75 $2,907.56 $402,201.52 $33,516.79
---------------- ------------------ --------------- -------------- -------------- ---------------- -----------------
4 $382,003.20 $31,833.60 $34,890.75 $2,907.56 $416,893.95 $34,741.16
---------------- ------------------ --------------- -------------- -------------- ---------------- -----------------
5 $397,283.33 $33,106.94 $34,890.75 $2,907.56 $432,174.08 $36,014.50
---------------- ------------------ --------------- -------------- -------------- ---------------- -----------------
