New York-Hauppauge-110 Plant Avenue Lease - Vanderbilt Associates and American Tissue Corp.
AGREEMENT OF LEASE made as of the _________ day of February, 1990, between
VANDERBILT ASSOCIATES, a partnership, with offices at 310 East Shore Road, Great
Neck, NY 11023 (hereinafter referred to as "Landlord") and AMERICAN TISSUE
CORP., a corporation, with officers at 50 Cabot Court, Hauppauge, NY 11788
(hereinafter referred to as "Tenant").
W I T N E S S E T H :
Landlord hereby leases to Tenant and Tenant hereby hires form Landlord the
premises located at 110 Plant Avenue, Hauppauge, NY (the "Premises") for the
term of ten (10) years and six (6) months (or until such term shall sooner cease
and expire as hereinafter provided) to commence on the "Commencement Date" as
defined in paragraph "16" hereof, and to terminate ten (10) years and six (6)
months after the Commencement Date (the "Expiration Date").
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
RENT
1. Six (6) months after the Commencement Date shall be the "Rent
Commencement Date."
During the first and second years after the Rent Commencement Date the basic
annual rental shall be $499,212.00, payable $41,601.00 in equal monthly
installments.
During the third and fourth years after the Rent Commencement Date the basic
annual rental shall be $467,496.00, payable $38,958.00 in equal monthly
installments.
During the fifth and sixth years after the Rent Commencement Date the basic
annual rental shall be $491,256.00, payable $40,938.00 in equal monthly
installments.
During the seventh and eight years after the Rent Commencement Date the basic
annual rental shall be $515,004.00, payable $42,917.00 in equal monthly
installments.
During the ninth and tenth years after the Rent Commencement Date the basic
annual rental shall be $540,000.00, payable $45,000.00 in equal monthly
installments.
Tenant agrees to pay the basic annual rental rate in lawful money of the
United States in equal monthly installments in advance on the first day of each
month during said term after the Term Commencement Date, at the office of
Landlord, or such other place as Landlord may designate, without any set off or
deduction whatsoever, except that Tenant shall pay the first monthly installment
on the execution hereof.
OCCUPANCY
2. Tenant shall use and occupy demised premises for its present business,
warehousing, light manufacturing and distribution, with offices appurtenant
thereto, and for no other purpose. Tenant shall not use or permit the use of the
demised premises contrary to any applicable statute, ordinance or regulation or
in violation of the Certificate of Occupancy, or in a manner which would cause
structural injury to the building.
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ADDITIONAL RENT
3. All costs and expenses which Tenant assumes or agrees to pay pursuant to
this lease shall at Landlord's election be treated as additional rent and, in
the event of non-payment, Landlord shall have all the rights and remedies herein
provided for in the case of non-payment of rent or of a breach of condition. If
Tenant shall default in making any payment required to be made by Tenant (other
than the payment of rent required by paragraph "1" of this lease) or shall
default in performing any term, covenant or condition of this lease on the part
of Tenant to be performed which shall involve the expenditure of money by
Tenant, Landlord, at Landlord's option may, but shall not be obligated to, make
such payment on behalf of Tenant, or expend such sum as may be necessary to
perform and fulfill such term covenant or condition on fifteen (15) days' prior
written notice to Tenant, except in an emergency, and any and all sums so
expended by Landlord with interest thereon at the rate of one and one-half
(1-1/2%) per cent per month from the date of such expenditure, shall be deemed
to be additional rent, in addition to the basic rent, and shall be repaid by
Tenant to Landlord, on demand, but no such payment or expenditure by Landlord
shall be deemed a waiver of Tenant's default nor shall it affect any other
remedy of Landlord by reason of such default.
"AS IS" CONDITION
4. Tenant presents that Tenant has inspected the Premises and agrees to
occupy the same in its present "as is" condition. Landlord shall not be required
to perform any work in the Premises. Landlord represents that the mechanical
systems, consisting of plumbing, heating, electrical and air conditioning, will
be in working order in on the Commencement Date and the Premises broom clean.
TAXES
5. If, in any year, during the term of this lease or any renewal, extension
or modification thereof, real estate taxes (as hereinafter defined) shall be
increased over and above Landlord's basic tax liability (as hereinafter defined)
Tenant covenants and agrees to pay that proportion of increase as determined by
the formula (as hereinafter defined) as additional rental, on the rent
installment date immediately following receipt of "Landlord's Statement" (as
hereinafter defined). Any increases in taxes due to Tenant's improvements
performed by Tenant are to be paid in full solely by Tenant.
(A) The term "real estate taxes" shall be deemed to mean all taxes and
assessments, special or otherwise, assessed upon or with respect to the
ownership of and/or all other taxable interests in the land and improvements
thereon of which the demised premises are part, imposed by Federal, State or
local governmental authority or any other taxing authority having jurisdiction
over Landlord's tax lot or lots, but shall not include income, intangible,
franchise, capital stocks, estate or inheritance taxes, or taxes based upon the
receipt of rentals (unless the same shall be in lien of "real estate taxes" as
herein defined by whatever name the tax may be designated).
(B) "Landlord's basic tax liability" shall be a sum equal to the
lesser of the amount of taxes as assessed or the said taxes as reduced by
appropriate proceedings, against the land, buildings and improvements in which
the premises are located in the tax year 1989/1990, excluding, however, taxes
for special assessments for local improvements not located on property owned by
Landlord.
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(C) "Formula"
Tenant's total
Square footage x increase = Tenant's share
-------------- of increase
Total square footage (100%)
of the building
(D) "Landlord's Statement" shall be that written statement which
Landlord may at any time deliver to Tenant containing a computation of the
increase above Landlord's basic tax liability and the amount of Tenant's
proportionate share thereof.
The failure of Landlord to deliver a Landlord's Statement as provided
above, shall not prejudice nor waive the right of Landlord to deliver such
statement for any subsequent tax year nor from including in said statement, as
additional rental, Tenant's proportionate share of any increase for any year in
which no Landlord's Statement was delivered to Tenant, but for which Tenant was
otherwise obligated to pay such additional rental. In the event that Landlord's
basic tax liability is reduced as a result of any appropriate proceeding,
Landlord shall have the right to adjust the amount of additional rent due from
Tenant for any year in which Tenant is or was obligated to pay additional rental
hereunder and Tenant agrees to pay the amount of said adjustment on the next
rent installment day immediately following receipt of a written statement from
Landlord setting forth the amount of said adjustment.
With respect to any period at the expiration of the term of this lease,
which shall constitute a partial tax year, Landlord's Statement shall apportion
the amount of the additional rental due hereunder. The obligation of Tenant in
respect of such additional rental applicable for the last year of the term of
this lease or part thereof shall survive the expiration of the term of this
lease.
(E) The Tenant shall have the right to contest any such real estate
tax, special assessments or other governmental charges levied against the
demised premises by writ of certiorari, or otherwise, in the same manner as
provided by law for the owner of the property to contest the same upon condition
that the Tenant shall secure the payment of such real estate taxes, special
assessments or other governmental charge with surety bond, cash deposit or other
means satisfactory to the Landlord, that the cost of such proceeding shall be
borne solely by the Tenant, and the Tenant shall hold Landlord free and harmless
from any cost, penalties, or otherwise, incurred as a result thereof. Landlord
shall at Tenant's request execute such documents as are necessary to carry out
the foregoing.
(F) Landlord represents that the Premises are fully assessed and not
subject to any tax abatements at the present time.
(G) [ILLEGIBLE]
REPAIRS
6. The Landlord shall make all structural repairs to the demised premises
during the term of this lease with the exception of any structural repairs
required as a result of the acts of negligence of the Tenant, its agents,
officers, employees, patrons or licensees. Landlord shall cause the guarantees
provided by its contractors and materialmen to be issued to and for the benefit
of the Tenant and Landlord. "Structural Repairs" are hereby defined as meaning
repairs to the foundation, roof supports, perimeter walls and structural steel.
The Tenant shall make all repairs other than those set forth in this paragraph
"6" and structural repairs when the result of the negligence or acts of itself,
its agents, officers, employees, patrons or licensees. The Tenant shall, in
addition thereto, maintain and repair
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sidewalks abutting the premises, driveways and repair electrical, heating,
plumbing, sprinkler and air-conditioning facilities (if any), parking areas and
buildings appurtenances. The Tenant shall keep the premises properly painted and
decorated; it shall paint all exterior trim and all exposed metal beams and
girders as reasonably required, and generally keep the premises, interior and
exterior, in good repair, excluding only those repairs for which the Landlord
shall be responsible. The Tenant shall keep the premises clean and free of
debris, snow and ice, replace all broken glass, and maintain all landscaping on
the premises.
ALTERATIONS
7. (A) Tenant shall make no structural alterations in or to the demised
premises without Landlord's prior written consent. The Landlord will not
unreasonably withhold such consent.
(B) Landlord consents to Tenant making the following repairs to the
Premises, at Tenant's sole cost and expenses:
1. increase height of exterior overhead doors;
2. modify sheetrock wall separating building running from east
to west; and
3. install additional docks and/or drive in.
HEAT, WATER AND UTILITIES
8. Anything to the contrary in this agreement or the specifications
notwithstanding, the Tenant shall be obligated to furnish at its own expense,
heat, water, electricity and other utilities necessary for the operation of the
building and grounds. The utility lines and facilities shall be in good
operating order, as of the Commencement Date.
COMPLIANCE WITH REQUIREMENTS OF LAW
9. The Tenant shall promptly execute and comply with all statutes,
ordinances, rules, orders, regulations and requirements (including those which
require structural repairs resulting from Tenant's modification of the demised
premises) of the Federal, State, County and Local Government and of any and all
of their Departments and Bureaus applicable to said premises, for the
correction, prevention and abatement of nuisances or other grievances, in, upon
or connected with said premises during said term; and shall also promptly comply
with and execute all rules, orders and regulations of the New York Board of Fire
Underwriters for the prevention of fires at the Tenant's own cost and expense.
Tenant shall keep or cause the Premises to be kept free of Hazardous
Materials. Without limiting the foregoing, Tenant shall not cause or permit the
Premises to be used to generate, manufacture, refine, transport, treat, store,
handle, dispose, transfer, produce or process Hazardous Materials, except in
compliance with all applicable Federal, state and local laws or regulations, nor
shall Tenant cause or permit, as a result of any intentional or unintentional
act or omission on the part of Tenant or any subtenant, a release of Hazardous
Materials onto the Premises or onto any other property. Tenant shall comply with
and ensure compliance by all subtenants with all applicable Federal, state and
local laws, ordinances, rules and regulations, whenever and by whomever
triggered, and shall obtain and comply with, and ensure that all subtenants
obtain and comply with, any and all approvals, registrations or permits required
thereunder. Tenant shall (a) conduct and complete all investigations, studies,
samplings, and testing, and all remedial removal, and other actions necessary to
clean up and remove all Hazardous Materials, on, from, or affecting the Premises
(i) in accordance with all applicable Federal, state and local laws, ordinances,
rules, regulations, and policies, (ii) to the satisfaction of Landlord, and
(iii) in accordance with the orders and directives of all
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Federal, state and local governmental authorities, and (b) defend, indemnify,
and hold harmless Landlord, its employees, agents, officers, and directors, from
and against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs, or expenses of whatever kind or nature, known or unknown,
contingent or otherwise, arising, after Tenant's possession of the Premises, out
of, or in any way related to, (i) the presence, disposal, release, or threatened
release of any Hazardous Material which are on, from, or affecting the soil,
water, vegetation, buildings, personal property, person, animals, or otherwise;
(ii) any personal injury (including wrongful death) or property damage (real or
personal) arising out of or related to such Hazardous Materials; (iii) any
lawsuit brought or threatened, settlement reached, or government order relating
to such Hazardous Materials, and/or (iv) any violation of laws, orders,
regulations, requirements, or demands of government authorities, or any policies
or requirements of Landlord which are based upon in any way related to such
Hazardous Materials, including, without limitation, attorney and consultant
fees, investigation and laboratory fees, court costs, and litigation expenses.
In the event this Lease is terminated, or Tenant is dispossessed, Tenant shall
deliver the Premises to Landlord free of any and all Hazardous Materials so that
the conditions of the Premises shall conform with all applicable Federal, state
and local laws, ordinances, rules or regulations affecting the Premises. For
purposes of this paragraph, "Hazardous Materials" includes, without limit, any
flammable explosives, radioactive materials, hazardous materials, hazardous
wastes, hazardous or toxic substances, or related materials defined in the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous Materials
Tansportation Act, as amended (49 U.S.C. Sections 1801 et seq.), the Resource
Conservations and Recovery Act, as amended (42 U.S.C. Sections 9601, et seq.)
and in the regulations adopted and publications promulgated pursuant thereto, or
any other Federal, state or local environmental law, ordinance, rule or
regulation.
FIRE INSURANCE
10. The Tenant covenants that it will, during the term of this lease, keep
the building and improvements which will hereafter be erected upon the demised
premises, together with equipment and machinery therein (excluding machinery,
equipment and personal property belonging to Tenant) insured against loss by
fire with extended coverage, rent insurance, and boiler insurance with waiver of
right in all such insurance to recover by way of subrogation against Landlord or
Tenant, and such other hazards as Landlord's first mortgagee may require
in solvent insurance companies authorized and licensed to issue such policies in
the State of New York acceptable to Landlord and to Landlord's first mortgagee,
and to maintain such insurance at all times during the term of this lease in an
amount sufficient to prevent Landlord from becoming a co-insurer of any loss but
in no event in an amount less than ninety (90%) per cent of the full insurable
value thereof (excluding foundation costs) or the reconstruction cost of the
building and improvements, whichever is greater. Such policies shall be taken
out by the Tenant shall be issued in the name of the Landlord, and, at the
direction of the Landlord, loss to be payable to Landlord and mortgagee as their
interests shall appear. The policies shall remain at all times in the possession
of the landlord or the Landlord's mortgagees. The Tenant agrees to pay the
premiums as they accrue, and if not so paid, the Landlord may, at its option,
pay such premiums. Such accrued premiums, whether or not paid by the Landlord
shall be deemed additional rent and due and payable on the next rent day or any
subsequent rent day. Payments of such premiums by the Landlord shall not be
deemed a waiver of the default in payment by the Tenant, and the Landlord,
whether or not it shall have been paid such premiums, shall have recourse to all
remedies heretofore provided in the event of default by the Tenant in the
performance
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of the terms and conditions of this lease. At the commencement of the term of
this lease the Tenant will take over by transferring Landlord's existing fire
insurance policy and adjusting with the Landlord the prepaid portion of the
premium.
DESTRUCTION
11. (A) If the demised premises should be damaged or destroyed during the
demised term by fire or other casualty covered by insurance, Landlord shall,
with due diligence, repair and/or rebuild the same to substantially the
condition it was in immediately prior to such damage or destruction, except as
in this paragraph "11" provided.
(B) Rent shall be abated proportionately during the period in which,
by reason of any such damage or destruction, there is a substantial interference
with the operation of the business of Tenant in the demised premises, having
regard to the extent to which Tenant may be required to discontinue its business
in the demised premises, and such abatement shall continue for the period
commencing with such destruction or damage and ending with the completion by the
Landlord of such work or repair and/or construction as Landlord is obligated to
do.
(C) If the building on the demised premises should be damaged or
destroyed to the extent of fifty (50%) per cent or more of the then monetary
value thereof, exclusive of foundations, by any cause, and should such damage or
destruction occur at any time when the term of this lease has less than five (5)
years to run, either party shall have the right to terminate this lease on
written notice to the other given within sixty (60) days after such damage or
destruction.
(D) If this lease shall not be terminated as in this paragraph "11"
provided, Landlord shall restore the building or buildings and subparagraphs "A"
and "B" of this paragraph "11" shall be applicable.
(E) In the event at the time of the fire loss or destruction, the
Landlord is unable to rebuild because (i) any governmental bureau, department or
subdivision thereof shall impose restrictions on the manufacture, sale,
distribution and/or use of materials necessary in the construction of the
building, or (ii) the Landlord is unable to obtain materials from any normal
sources due to strikes, lockouts, war, military operations and requirements,
national emergencies, etc., and such disability shall continue for six (6)
months, the Landlord may cancel this lease upon giving notice to the Tenant.
LIABILITY INSURANCE
12. During the term hereof, Tenant shall, at Tenant's own cost and expense,
provide and keep in force for the benefit of Landlord and Tenant as their
interests may appear, public liability insurance policy or policies of standard
form in the State of New York, with limits of One Million ($1,000,000.00)
Dollars bodily injury, including death, and One Hundred Thousand ($100,000.00)
Dollars limits for property damage, such policy or policies to cover the demised
premises, inclusive of sidewalks and parking facilities. The policies shall be
obtained by Tenant and certificates thereof delivered to Landlord upon the
commencement of the term hereof, with evidence of stamping or otherwise of the
payment of the premiums thereon and shall be taken in well rated insurance
companies authorized to do business in the State of New York.
SUBORDINATION
13. This lease is subject and subordinate to all first mortgages which may
now or hereafter affect the demised premises
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and to all renewals, modifications, consolidations, replacements and extensions
thereof. This clause shall be self-operative and no further instrument of
subordination shall be required by any mortgagee. In confirmation of such
subordination, Tenant shall execute promptly any certificate that Landlord may
request. Tenant hereby constitutes and appoints Landlord the Tenant's
attorney-in-fact to execute any such certificate or certificates for and on
behalf of Tenant. Landlord agrees to notify Tenant of Notice of Default received
from any mortgagee.
MORTGAGEE'S REQUIREMENTS
14. (A) The Tenant will promptly furnish to the Landlord all financial
information and other information concerning the Tenant reasonably required by
any mortgagee to whom the Landlord applies for the mortgage commitment
hereinabove described and the Tenant will execute any documents reasonably
required by such mortgagee.
(B) The Tenant agrees that upon the commencement of the term of this
lease and at any time thereafter, and from time to time upon less than five (5)
days prior request by the Landlord, the Tenant will execute, acknowledge and
deliver to the Landlord a statement in writing certifying (a) that this lease is
unmodified and in full force and effect (or if there have been modifications
that the same is in full force and effect as modified and identifying the
modifications), (b) the dates to which the basic rent and other charges have
been paid, and (c) that, so far as the person making the certificate knows, the
Landlord is not in default under any provisions of this lease. It is intended
that any such statement may be relied upon by any person proposing to acquire
the Landlord's interests in this lease or any prospective mortgagee of, or
assignee of any mortgage upon such interest.
(C) So long as there is a first mortgage lien against the demised
premises, Landlord and Tenant, without first obtaining the written consent of
such mortgagee, will not enter into any agreement, the effect of which would be
to (a) modify, cancel, terminate or surrender the lease; (b) grant any
concession in respect of; (c) reduce the rent or require the prepayment of any
rent in advance of the due date thereof; (d) create any offsets or claims
against rents, (e) assign in whole or in part any of the rents therefrom or
Tenant's interest in the lease or sublet the whole or any portion of the demised
premises, except as provided in this lease.
(D) The Tenant will furnish to the Landlord and the first mortgagee,
within one hundred fifty (150) days after the end of each fiscal year of the
Tenant, copies of (consolidated) balance sheets of the Tenant (and subsidiaries)
for such fiscal year, delivered by the Tenant's accountants.
(E) In the event of any act or omission by the Landlord which would
give the Tenant the rights same as the holder of any mortgage whose name and
address shall have been furnished to the Tenant in writing, at the last address
so furnished, and (b) until a reasonable period of time for remedying such act
or omission shall have elapsed following the giving of such notice, provided
that following the giving of such notice, the Landlord or said holder shall,
with reasonable diligence, have commenced and continued to remedy such act or
omission or to cause the same to be remedied in a speedy and expeditious manner.
(F) In the event a Receiver is a foreclosure action or a purchaser at
a sale in an action to foreclose a mortgage to which this lease is subordinate,
or their successor or assigns,
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shall become the Landlord of the demised premises, then such Landlord shall not
be obligated to repair, rebuild or restore the demised premises after fire or
other casualty, or after a partial "taking", anything to the contrary in
paragraphs "11" and "18" hereof notwithstanding, provided that such Landlord
gives notice to the Tenant within thirty (30) days.
(G) If an institution furnishing a mortgage on the demised premises
shall require a change or changes in this lease as a condition of such financing
and if Tenant refuses to agree hereto, the Landlord may terminate this lease at
any time, provided such changes shall not substantially alter the obligations of
the parties each to the other or to impose on the Tenant any conditions more
burdensome than as otherwise exists hereunder.
INDEMNITY AGAINST LIABILITY
15. Landlord shall not in any event whatsoever be liable for any injury or
damage to any person happening on or about the demised premises, or for any
injury or damage to the demised premises, or to any property of Tenant, or to
any property of any other person, firm, association or corporation on or about
the demised premises other than resulting from Landlord's negligence. If the
Tenant shall fail to keep in force and effect the insurance hereinabove set
forth, then the Tenant shall indemnify and save harmless Landlord from and
against any and all suits, claims, and demands of every kind and nature,
including reasonable counsel fees by or on behalf of any person, firm,
association or corporation arising out of or based upon any accident, injury or
damage, however occurring, which shall or may happen on or about the demised
premises, or in or about the vaults, streets, sidewalks or curbs in front of or
adjacent thereto, and from and against any matter or thing growing out of the
condition, maintenance, repair, alterations, use, occupation or operation of the
demised premises or of the vaults, streets, sidewalks or curbs in front of or
adjacent thereto.
COMMENCEMENT OF TERM
16. The Tenant shall then take physical possession of the Premises on the
date Landlord delivers possession of the Premises to the Tenant. Should the date
upon which the said rent is payable be a date other than the first day of the
month, the Tenant shall pay a pro rata portion of the rent from such date to the
first day of the following month.
"Substantially completed" as used elsewhere in this Lease, is defined
to mean when the only items to be completed are those which do not interfere
with the Tenant's occupancy and full enjoyment of the demised premises. The
issuance of a temporary Certificate of Occupancy shall be treated for all
purposes as if the permanent Certificates of Occupancy has been issued. Wherever
the words "Certificate of Occupancy" appear herein they shall be deemed to
include within their meaning "or temporary Certificate of Occupancy".
If Landlord shall be unable to give possession of the demised premises
by reason of the fact that the present Tenant has not vacated the Premises or
for any other reason, Landlord shall not be subject to any liability for the
failure to give possession on said date.
When the Commencement Date and Expiration Date are finally determined,
Landlord and Tenant shall execute an agreement memorializing said dates.
TENANT'S INSTALLATION PRIOR TO TERM
17. The Tenant shall, prior to the commencement of the term, and after the
present Tenant vacates the Premises, have the
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right to come upon the premises at its own risk to build, construct and install
its equipment, signs and fixtures for the operation of its business. Tenant,
however, shall hold the Landlord fee and harmless from any claims for any such
installation, etc. Tenant will employ only such labor as will not cause any
conflict or controversy with any labor organization representing trades
performing work for Landlord, its contractors, or subcontractors in and about
the demised premises. Tenant shall conduct its operations in a manner in which
will not interfere with Landlord's construction of the building. The Tenant
shall supply the Landlord with Workers' Compensation Certificates for all
persons and/or contractors doing work for the Tenant on premises during the
course of construction. In addition thereto, the Tenant shall furnish the
Landlord with a Public Liability Policy or an endorsement on its own policy in
the sum of Five Hundred Thousand ($500,000.00) Dollars/One Million
($1,000,000.00) Dollars for personal injuries and death claims and One Hundred
Thousand ($100,000.00) Dollars for property damage. The Tenant shall, in the
event of any mechanics liens filed against the premises by any subcontractors
and/or materialmen, bond the mechanics liens or pay same within ten (10) days'
of written notice to the Landlord. On its failure to do so the Landlord may, at
its own option, either remove the lien by payment or bonding same and charging
the Tenant with the cost thereof together with reasonable counsel fees. The
Landlord shall have the option of paying out the monies for said liens from any
funds of Tenant in Landlord's possession. Nothing in this lease contained shall
be construed in any way as constituting the consent or request of the Landlord,
expressed or implied, to any contractor, subcontractor, laborer or materialmen
for the performance of any labor or the furnishing of any materials for any
improvement, alteration or repair of the demised premises, nor as giving any
right or authority to contract for the rendering of any services or the
furnishing of any materials that would give rise to the filing of any mechanic's
liens against the demised premises.
EMINENT DOMAIN
18. If the whole of the demised premises be taken under the power of
eminent domain for any public or quasi public improvement or use, the term of
this lease shall expire as of the date when the possession of the demised
premises shall be required for such use or purpose.
If more than fifteen (15%) per cent of the parking area is taken
and/or fifteen (15%) per or more of the building is taken but less than the
whole of the demised premised be so taken and the nature and extent thereof are
such that the Tenant cannot reasonably conduct and operate its business and/or
that of its subtenants or licensees at the demised premises as to the remaining
portion thereof, or if less than such percentage be taken but the premises
remaining are divided or split up or direct access to the premises is taken away
by such taking, then and in any of such events, Tenant may elect to terminate
this lease, and the term thereof by written notice given to the Landlord within
sixty (60) days after surrendering possession to the condemning authority
pursuant to such taking. If, however, Tenant shall elect to continue the term of
this lease as to the remaining portion of the demised premises and shall give
written notice to Landlord within sixty (60) days after surrendering possession
to the condemning authority of the part so taken of such election or if this
lease is not terminated or terminable under the provisions therefor, Landlord
hereby agrees that it will with all reasonable dispatch and at Landlord's sole
cost and expense restore, reconstruct and rebuild the remaining parking area and
driveways, and/or the remaining portion of the building and all the
appurtenances to their condition prior to such taking in such manner that the
resulting building and parking area and driveways shall be complete and
integrated structural architectural and functional unit similar to and of equal
material and workmanship
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to the building and parking area and driveways on the demised premises prior to
such taking, with all the appurtenances throughout in good working order, so as
to put both the parking area and driveways and the building in proper condition
to be used by Tenant for the same purposes as at the time of such taking, all in
accordance with plans and specifications to be prepared by Landlord, at the sole
cost and expense of Landlord, and submitted for approval by Tenant before the
commencement of work.
(A) If the nature of the work to be done as a result of the taking is
such as to prevent the operation of the business then being conducted thereon,
or to make it impractical so to do, then the rent, taxes and other charges to be
paid by the Tenant under this lease shall abate until such completion of such
work by the Landlord. Otherwise on the date of the surrender of that portion of
the premises taken in condemnation or the resumption of occupancy by the Tenant
and for the balance of the term of this lease, the rent payable shall be reduced
in accordance with the following formula;
(i) if any portion of the parking field shall be taken during the
term, the Tenant shall be entitled to a reduction in the annual rental of $40.00
for each parking space lost as a result of the taking.
(ii) If any portion of the demised premises shall be taken during the
term, the Tenant shall be entitled to an abatement of rent which shall be that
fraction of the basic annual rental rate payable at the date of which numerator
shall be the number of square feet of the demised premises "taken" and the
denominator shall be the total number of square feet previously in the demised
premises, less the amount (if any) of any rent reduction pursuant to subdivision
"(i)" above.
(B) If, during the term of this lease or any renewal period, less than
the aforesaid percentages be so taken, then and from the date of the surrender
of the portion so taken by the condemning authority, the rent payable hereunder
shall be reduced in the amounts as is provided in subdivisions "(i)" and "(ii)"
of subparagraph "(A)" of this paragraph "18" aforesaid. However, if the rental
rate during any renewal period is decreased (or increased) then the amount of
the foregoing rent reduction shall be proportionately decreased (or increased).
(C) In the event of any taking under the power of eminent domain,
Landlord shall be entitled to and shall receive the entire award provided that
tenant shall be entitled to and receive any part of any award made for many
buildings or improvements erected or made by Tenant.
RIGHT TO SUBLET OR ASSIGN
19. A. The Tenant covenants that it shall not assign this Lease nor sublet
the Demised Premises or any part thereof without the prior written consent of
Landlord in each instance, except on the conditions hereinafter stated. The
Tenant may assign this Lease or sublet the Demised Premises with Landlord's
written consent, which shall not be unreasonably withheld or delayed, providing;
(i) That such assignment or sublease is for a use which is in
compliance with the then existing zoning regulations and the Certificate of
Occupancy;
(ii) That at the time of such assignment or subletting, there is no
default under the terms of this Lease on the Tenant's part;
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(iii) That is the event of an assignment, the assignee assume in
writing the performance of all of the terms and obligations of the within Lease;
(iv) That a duplicate original of said assignment or sublease be
delivered by registered mail to the Landlord at the address herein set forth
within ten (10) days from the said assignment or sublease and within ninety (90)
days of the date that Tenant first advises Landlord of the name and address of
the proposed subtenant or assignee as required, pursuant to subparagraph (B)
hereof;
(v) Such assignment or subletting shall not, however, release the
within Tenant from its liability for the full and faithful performance of all of
the terms and conditions of this Lease;
(vi) If this Lease be assigned, or if the Demised Premises or any part
thereof be under let or occupied by anybody other than Tenant, Landlord may
after default by Tenant collect rent from the assignee, undertenant or occupant;
and apply the net amount collected to the rent herein reserved;
B. Notwithstanding anything contained in this Article 19 to the
contrary, no assignment or underletting shall be made by Tenant in any event
until Tenant has offered to terminate this Lease as of the last day of any
calendar month during the term hereof and to vacate and surrender the Demised
Premises to Landlord on the date fixed in the notices served by Tenant upon
Landlord (which date shall be prior to the date of such proposed assignment or
the commencement date of such proposed lease). Simultaneously with said offer to
terminate this Lease, Tenant shall advise the Landlord, in writing, of the name
and address of the proposed assignee or subtenant, and all the terms, covenants,
and conditions of the proposed sublease or assignment.
C. Tenant may, without the consent of Landlord, assign this Lease to
an affiliated (i.e. a corporation 20% or more of whose capital stock is owned by
the same stockholders owning 20% of Tenant's capital stock or more), parent or
subsidiary corporation of Tenant or to a corporation to which it sells or
assigns all of substantially all of its assets, or which shall purchase the
business at the premises, or with which it may be consolidated or merged,
provided such purchasing consolidated, merged or affiliated or subsidiary
corporation shall, in writing assume and agree to perform all of the obligations
of Tenant under this Lease and it shall deliver such assumption with a copy of
such assignment to Landlord within ten (10) days thereafter, and provided
further that Tenant shall not be released or discharged from any liability under
this Lease by reason of such assignment.
D. Whenever Tenant shall claim under this Article or any other part of
this Lease that Landlord has unreasonably withheld or delayed its consent to
some request of Tenant, Tenant shall have no claim for damages by reason of such
alleged withholding or delay, and Tenant's sole remedy thereof shall be a right
to obtain specific performance or injunction but in no event with recovery of
damages.
E. Tenant shall have the right to sublease the existing office area,
anything to the contrary herein notwithstanding.
RIGHT TO INSPECT
20. Tenant shall permit Landlord or Landlord's agents to enter the demised
premises (subject to any governmental security regulations) at all reasonable
hours for the purpose of inspecting the same, or of making repairs that Tenant
may neglect or refuse to make in accordance with the terms, covenants and
conditions of this lease and also for the purpose of showing the demised
premises to persons wishing to purchase the same, and during the year next
preceding the expiration of this lease, shall permit inspection thereof by or on
behalf of prospective tenants. If, at
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reasonable hours, admission to the premises for the purpose aforesaid cannot be
obtained, or if at any time an entry shall be deemed necessary for the
inspection or protection of the property or for making any repairs, whether for
the benefit of Tenant or not, Landlord or Landlord's agents or representatives
may enter the demised premises by force or otherwise, without rendering Landlord
or Landlord's agent or representative liable to any claim or cause of action for
damages by reason thereof, and accomplish such purpose. The provision contained
in this paragraph "20" are not to be construed as an increase of Landlord's
obligations under this lease; it being expressly agreed that the right and
authority hereby reserved does not impose nor does Landlord assume by reason
thereof, any responsibility or liability whatsoever for the repair, care or
supervision of the demised premises, or any building, equipment or appurntenance
on the demised premises.
POSTING OF SIGNS FOR RELETTING
21. During the nine (9) last months of the term or any extended term hereby
granted, Landlord may post and maintain, without hindrance or molestation, signs
or notices indicating that the premises are for sale and/or for rent. No such
sign shall be affixed to a door or window of the premises. The sign shall be of
reasonable size and the location of the sign shall not unreasonably interfere
with Tenant's use of the Premises.
BANKRUPTCY
22. (A) If, at any time prior to the commencement of the term of this
lease, or if at any time during the term hereby demised there shall be filed by
or against Tenant 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 Tenant's property, and within ninety (90) days thereof Tenant fails
to secure a discharge thereof, or if Tenant makes an assignment for the benefit
of creditors or petition for or enter into an arrangement, this lease, at the
option of Landlord, exercised within a reasonable time after notice of the
happening of any one or more of such events, may be cancelled and terminated and
in which event neither Tenant nor any person claiming through or under Tenant
by virtue of any statute or of an order of any court shall be entitled to
possession or to remain in possession of the premises demised but shall
forthwith quit and surrender the premises, and Landlord, in addition to the
other rights and remedies Landlord has by virtue of any other provision herein
or elsewhere in this lease contained or by virtue of any statute or rule of law,
may retain as liquidated damages any rent, security deposit or monies received
by him from Tenant or others in behalf of Tenant.
(B) It is stipulated and agreed that in the event of the termination
of this lease pursuant to "(A)" hereof, Landlord 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 then 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 at the rate of four (4%) per cent per annum. If such premises or any
part thereof be relet by the Landlord for the unexpired term of said lease, or
any part thereof, before 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 reletting shall be prima
facie to be the fair and reasonable rental value for the part or the whole of
the premises so relet
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during the term of reletting. Nothing herein contained shall limit or prejudice
the right of the Landlord 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
23. (A) If Tenant shall fail to pay any installment of basic rent, or any
additional rent or other charges as and when the same are required to be paid
hereunder, and such default shall continue for a period of ten (10) days after
notice, or if Tenant defaults in fulfilling any of the other covenants of this
lease and such default shall continue for a period of twenty (20) days after
notice, or if the demised premises become vacant or deserted, then, in any one
or more such events, upon Landlord serving a written five (5) days' notice upon
Tenant specifying the nature of said default and upon the expiration of said
five (5) 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 such a
nature that the same cannot be completely cured or remedied within said five (5)
day period, and shall not thereafter with reasonable diligence and in good faith
proceed to remedy or cure such default, then Landlord may serve a written three
(3) days' notice of cancellation of this lease upon Tenant, and upon the
expiration of said three (3) days, this lease and the term thereunder shall end
and expire as fully and completely as if the date of expiration of such three
(3) 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 Landlord, but Tenant shall remain liable as hereinafter
provided.
(B) If the notice provided for in "(A)" above shall have been given,
and the term shall expire as aforesaid; or (a) 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 provided,
and such default shall continue for ten (10) days after notice, or (b) 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 (c) if Tenant shall fail to move into or take possession
of the premises within fifteen (15) days after commencement of the term of this
lease, then, and in any such events, Landlord may without notice, re-enter the
demised premises 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 as if this lease had not been
made, and Tenant hereby waives the service of notice of intention to re-enter or
to institute legal proceedings 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, Landlord may cancel and terminate such renewal or
extension agreement by written notice
REMEDIES OF LANDLORD
24. In case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or otherwise, (i) Rent shall become due thereupon and be
paid up to the time of such re-entry, dispossess and/or expiration, together
with such reasonable expenses as Landlord may incur for legal expenses,
attorneys' fees, brokerage, and/or putting the Premises in good order or for
preparing the same for re-rental; (ii) Landlord may relet the Premises or any
part or parts thereof, either in the name of the Landlord or otherwise, for a
term or terms, which may at Landlord'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; and/or (iii) Tenant or the legal
representatives of Tenant shall also pay Landlord as liquidated damages for the
failure of Tenant to observe and perform said Tenant's covenants herein
contained, any deficiency between the Rent herein 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 Premises for each month of the period which would
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otherwise have constituted the balance of the term of this Lease. The failure or
refusal of Landlord to relet 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 reasonable expenses as
Landlord may incur in connection with reletting such as legal expenses,
attorneys' fees, brokerage and for keeping the Premises in good order or
preparing the same for reletting. 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 Landlord to collect the deficiency for any
subsequent month by a similar proceeding. Landlord, at Landlord's option may
make such alterations, repairs, replacements and/or decorations in the Premises
as Landlord, in Landlord's sole judgment, considers advisable and necessary for
the purpose of reletting the Premises; and the making of such alterations and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Landlord shall in no event be liable for the failure to
relet the Premises, or in the event that the Premises are relet, for failure to
collect the rent under such reletting. In the event of a breach or threatened
breach by Tenant of any of the covenants or provisions hereof, Landlord 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 Landlord from any other remedy, in law or in equity. In all cases
hereunder, and in any suit, action or proceeding of any kind between the
parties, it shall be presumptive evidence of the fact of the existence of a
charge being due, if Landlord shall produce a bill, notice or certificate of any
public official entitled to give such bill, notice or certificate to the effect
that such charge appears of record on the books in his office and has not been
paid.
WAIVER OF REDEMPTION
25. 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 Landlord obtaining possession of
demised premises, by reason of the violation by Tenant of any of the covenants
and conditions of this lease or otherwise.
SECURITY
26. Tenants to deposit with Landlord the sum of Fifty Thousand ($50,000.00)
Dollars as retainage for the faithful performance and observance by Tenant of
the terms, provisions and conditions of this Lease; it is agreed that in the
event Tenant defaults in respect of any of the terms, provisions and conditions
of this Lease, including, but not limited to, the payment of rent and additional
rent, Landlord 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 Landlord
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 reletting of the premises, whether
such damages or deficiency
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accrued before or after summary proceedings or other re-entry by Landlord. 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 as the end of the Lease and after
delivery of entire possession of the Demised Premises to the Landlord. In the
event of a sale of the land and building or leasing of the building, of which
the Demised Premises form a part, Landlord shall have the right to transfer the
security to the vendee or lessee and Landlord shall thereupon be released by
Tenant from all liability for the return of such security; and Tenant agrees to
look to the new Landlord 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 Landlord. 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 Landlord nor its successors or assigns shall
be bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
Tenant shall have the right to deliver to Landlord, in lieu of the cash
deposit, a clean, unconditional irrevocable letter of credit, drawn on a bank
which is a member of the New York Clearing House, in the amount of the security
deposit. The form and content of the letter of credit shall be subject to the
reasonable approval of Landlord.
BROKER
27. Tenant represents that this Lease was brought about by Sutton &
Edwards, as broker and all negotiations with respect to this Lease were
conducted exclusively through said broker. Tenant agrees that if any claim is
made for commissions by any broker other than said broker, by, through or on
account of any acts of Tenant, Tenant will hold Landlord free and harmless from
any and all liabilities and expenses in connection therewith, including
Landlord's reasonable attorney's fees. The Landlord will pay said broker its
brokerage commission per separate agreement.
REPOSSESSION
28. On the last day of the term hereof or on the earlier termination
hereof, Tenant shall peaceably and quietly leave, surrender and deliver up to
Landlord the demised premises broom clean, together with the buildings or any
new building and all alterations, changes, additional and improvements which may
have been made upon the premises (except movable furniture or movable trade
fixtures put in at the expense of Tenant) in good repair and good order and safe
condition, except for reasonable wear and tear and damage by fire, other
casualty or the elements excepted. Tenant, on or before said date shall remove
all of Tenant's personal property from the demised premises and all property not
so removed shall be deemed to have been abandoned and may be appropriated, sold,
stored, destroyed or otherwise disposed of by Landlord without notice to Tenant
and without obligation to account therefor. Tenant's obligation under this
paragraph "28" shall be deemed to survive the expiration or other termination of
this lease.
RESTRICTION
29. Tenant shall comply with the following restrictions with respect to the
premises:
A. Tenant shall store all trash and refuse in appropriately sealed and
covered containers either within the building or in a concealed location at the
rear of the building and shall attend to the regular disposal and removal
thereof.
B. Tenant shall receive all deliveries, load and unload goods,
merchandise, supplies, fixtures, equipment, furniture and
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rubbish only through proper service doors and loading docks serving the
building, but in no event through the main front entrance thereof.
C. Tenant shall not change the exterior colors or architectural
treatment of the premises or make any alterations or changes to the exterior of
the building, the grading, planting or landscaping of the exterior of the
premises which shall not be harmonious with adjoining properties.
D. Tenant shall not place or install or suffer to be placed or
installed any sign upon the premises unless such sign shall be approved by
Landlord and shall be harmonious with the signs of adjoining properties. In any
event, Tenant shall not place or cause to be placed upon the building any
awning, canopy, banner, flag, pennant, aerial, antenna or the like. All signs or
lettering on or about the premises or the building shall be neat and of
reasonable size. The following are strictly prohibited:
1. Paper signs and stickers;
2. Moving, flickering or flashing lights;
3. Exposed neon or fluorescent tubes or other exposed light
sources.
E. Tenant shall not permit the parking of any vehicles on the streets
and roadways adjoining or surrounding the premises and Tenant shall require its
employees, customers, invites, licensees and visitors to park only in the
parking areas serving the Premises.
NO WAIVER
30. No act or thing done by Landlord or Landlord's agents during the term
hereby demised shall be deemed an acceptance of a surrender of the demised
premises, and no agreement to accept such surrender shall be valid unless in
writing signed by Landlord. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys to any employee of Landlord or of
Landlord's agents shall not operate as a termination of the lease or a surrender
of the premises. The failure of Landlord to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this lease
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 Landlord of rent with knowledge of the breach of a covenant of this
lease shall not be deemed a waiver of such breach. No provision of this lease
shall be deemed to have been waived by Landlord unless such waiver be in writing
signed by Landlord.
DEFINITION
31. The words "re-enter" and "re-entry" as used herein are not restricted
to their technical legal meaning. The word "Landlord" as used herein means only
the owner in fee for the time being of the demised premises, so that in the
event of any sale of the demised premises, Landlord shall be and hereby is
entirely freed and relieved of all covenants and obligations of Landlord
hereunder and it shall be deemed and construed without further agreement between
the parties or between the parties and the purchaser of the demised premises,
that such purchaser has assumed and agreed to carry out any and all covenants
and obligations of Landlord hereunder. If any Landlord named herein be acting in
a fiduciary or representative capacity, the termination in whole or in part of
such capacity shall be deemed a transfer within the meaning of this article.
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QUIET ENJOYMENT
32. Landlord covenants that if and so long as Tenant pays the Rent, and
additional rent, and other charges reserved by this Lease, and performs all the
terms, covenants and conditions of this Lease on the part of Tenant to be
performed, Tenant shall quietly enjoy the premises subject, however, to the
terms of this Lease and of any mortgage or mortgages to which this Lease by its
terms is subject.
MARGINAL NOTES
33. The marginal notes are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope or intent of this
lease.
WAIVER OF JURY AND COUNTERCLAIM
34. It is mutually agreed by and between Landlord and Tenant that the
respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either the parties hereto against
the other on any matters whatsoever arising out of or in any way connected with
this lease, the relationship of Landlord and Tenant, Tenant's use or occupancy
of said premises, and/or any claim of injury or damage and any emergency
statutory or any other statutory remedy. It is further mutually agreed that in
the event the Landlord commences any summary proceedings for non-payment of
rent, the Tenant will not interpose any counterclaim of whatsoever nature or
description in such proceeding.
NONLIABILITY OF LANDLORD
35. (a) Landlord and Landlord's agents and employees shall not be
liable for, and Tenant waives all claims for, loss or damage to Tenant's
business or damage to persons or property sustained by Tenant resulting from
any accident or occurrence sustained by Tenant resulting from any accident or
occurrence (unless caused by or resulting from the negligence of Landlord, its
agents, servants or employees other than accidents or occurrences against which
Tenant is insured) in or upon the Premises or the Building, including, but not
limited to, claims for damage resulting from: (i) any equipment or appurtenances
becoming out of repair; (ii) injury done or occasioned by wind, (iii) any defect
in or failure of plumbing, heating or air conditioning equipment, electric
wiring or installation thereof, gas, water, and steam pipes, stairs, porches,
railings or walks; (iv) broken glass; (v) the backing up of any sewer pipe or
downspout; (vi) the bursting, leaking or running of any tank, tub, washstand,
water closet, waste pipe, drain or other pipe or tank in, upon or about the
Building or the Premises; (vii) the escape of steam or hot water; (viii) water,
snow or ice being upon or coming through the roof, skylight, trapdoor, stairs,
doorways, show windows, walks or any other place upon or near the Building or
the Premises or otherwise; (ix) the falling of any fixture, plaster, tile or
stucco; and (x) any act, omission or negligence of other tenants, licensees or
of any other persons or occupants of the Building or of adjoining or contiguous
buildings or of owners of adjacent or contiguous property.
(b) If Landlord or a successor in interest an individual (which term
as used herein includes aggregates of individuals such as joint ventures,
general or limited partnerships or associates) such individuals shall be under
no personal liability with respect to any of the provisions of this Lease, and
if such individual hereto is in breach or default with respect to its
obligations under this Lease, Tenant shall look solely to the equity of such
individual in the land and building of which the Premises form a part for the
satisfaction of Tenant's remedies and in no event shall Tenant attempt to secure
any
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personal judgment against any partner, employee or agent of Landlord by reason
of such default by Landlord.
(c) The word "Landlord" as used herein means only the owner in fee for
the time being of the Premises, and in the event of any sale of the Premises,
Landlord shall be and hereby is entirely freed and relieved of all covenants and
obligations of Landlord hereunder and it shall be deemed and construed without
further agreement between the parties or between the parties and the purchase
of the Premises, that such purchaser has assumed and agreed to carry out any and
all covenants and obligations of Landlord hereunder.
NO ABATEMENT OF RENT
36. No diminution or abatement of Rent or other compensation shall be
claimed or allowed for inconvenience or discomfort arising from the making of
additions, repairs or improvements to the Building or to its appliances, nor for
any space taken to comply with any law, ordinance or order of a governmental
authority, except as provided in paragraphs "11" and "18" hereof. In respect to
the "services", if any herein expressly or impliedly agreed to be furnished by
the Landlord to the Tenant, it is agreed that there shall be no diminution or
abatement of the rent, or any other compensation, for interruption or
curtailment of such "service" when such interruption or curtailment shall be due
to accident, alterations or repairs, desirable to or necessary to be made or to
inability or difficulty in securing supplies or labor for the maintenance of
such "service" or to some other cause, not gross negligence on the part of the
Landlord. No such interruption or curtailment of such "service" shall be deemed
a constructive eviction. The Landlord shall not be required to furnish, and the
Tenant shall not be entitled to receive any of such "service" during any period
wherein the Tenant shall be in default in respect to the payment of rent.
Neither shall there be any abatement or diminution of rent because of making of
repairs, improvements, or decorations to the demised premises after the date
above fixed for the commencement of the term, it being understood and agreed
that rent shall, in any event, commence to run at such date so above fixed.
NEW YORK LAW APPLICABLE
37. This agreement shall be governed by and construed in accordance with
the law of or applicable to the State of New York.
ENTIRE AGREEMENT
38. This lease contains the entire agreement between the parties and shall
not be modified in any manner except by an instrument in writing executed by the
parties or their respective successor in interest.
ADJACENT EXCAVATION-SHORING
39. 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 demised premises from injury or damage
and to support the same by proper foundations without any claim for damages or
indemnity against Landlord, or diminution or abatement of rent.
OPTION TO PAY MORTGAGE ARREARS
40. In the event the Landlord defaults in the payment of any interest or
amortization due on any first mortgage to which the
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within lease is subordinate, then after twenty (20) days notice in writing by
the Tenant to the Landlord, the Tenant may pay to such first mortgagee the
amount of such principal and/or interest in arrears and credit the same against
rent thereafter to become due from Tenant to the Landlord under this lease.
UTILITY EASEMENT
41. This Lease is subject and subordinate to any utility, gas, water and
electric light or telephone line easements now or hereafter granted, affecting
the Premises, the Building or the land upon which they are located, provided
that the same do not unreasonably interfere with the Building nor unreasonably
interfere with the use of the Premises by Tenant.
NOTICES
42. All notices to be given hereunder shall be in writing by certified or
registered mail addressed to either of the parties at the address hereinabove
given or at any other subsequent mailing address they may indicate by notice.
Any notice given hereunder by mail shall be deemed delivered when deposited in a
United States general or branch post office, addressed as above provided. Tenant
hereby authorizes and designates the manager of the Premises as an officer
authorized to accept and receive service of process.
LATE CHARGES
43. In the event that the Tenant shall not have paid the rent on or before
the 10th day of the month during which same is due, there shall be a late charge
of one hundred ($100.00) Dollars a day, computed from the first day of the month
in which said rent shall be due computed to the date on which payment shall be
made. This late charge shall only be applicable after the first late payment.
This late charge shall be deemed additional rent and shall, at Landlord's
election, be added to the rent for the month in which the rent shall be due, and
the Landlord shall have all rights with respect to additional rent as for
nonpayment of any and all other rents due under the terms of this lease. The
demand for and collection of the aforesaid late charges shall in no wise be
deemed a waiver of any and all remedies that the Landlord may have under the
terms of this lease by summary proceedings or otherwise in the event of a
default in payment of rent.
LANDLORD'S REPRESENTATION
44. Landlord or Landlord's agents have made no representations or promises
with respect to the land constituting the demised premises, nor with respect to
the building to be constructed thereon, nor otherwise with respect to the
demised premises, except as herein expressly set forth.
BINDING ON SUCCESSORS
45. The covenants, conditions and agreements contained in this lease shall
bind and inure to the benefit of Landlord and Tenant and their respective heirs,
distributees, executors, administrators, successors and, except as otherwise
provided in this lease, their assigns.
EARLIER TERMINATION
46. Tenant shall have the right to terminate this lease at the end of the
sixth (6th) year of the term of the lease on the following terms and conditions:
1. Tenant shall not then be in default of any of the terms and
conditions of this lease on the part of Tenant to be performed;
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2. That Tenant notify Landlord by certified mail, return receipt
requested, of Tenant's election to terminate this lease not later than the
end of the fifth (5th) year of the term, time being of the essence; and
3. That Tenant pay to the Landlord at the time of notification, the
sum of Two Hundred Fifty-Seven Thousand Five Hundred ($257,500.00) Dollars,
as lease termination consideration.
POSSESSION OF PREMISES
47. Landlord agrees that he will deliver possession of the demised premises
to the Tenant and the Tenant agrees to accept such possession between the date
of this lease and June 1, 1990 upon sixty (60) days' prior written notification
to the Tenant. Should Landlord be unable to give possession of the demised
premises to the Tenant, within such period, Tenant shall have the option to
terminate this agreement by written notice of such intention to terminate, to
the Landlord, served not later than June 15,1990. In the event of termination,
pursuant to this Article, neither party shall have any further liability to the
other.
INSPECTION OF PREMISES
48. After the execution and delivery of this lease, Tenant shall have the
right to inspect the demised premises at reasonable times on reasonable notice
with Tenant's personnel and/or his architect, engineer or other adviser.
MAINTENANCE OF THE ROOF
49. Anything herein contained to the contrary notwithstanding, Landlord
shall be responsible for the maintenance of the roof of the premises during the
entire term of this lease. Tenant shall pay to Landlord the sum of Five Hundred
($500.00) Dollars per month which Landlord shall retain as a separate fund for
the repair of said roof. It is understood that this fund shall not be used for a
complete reroofing of the premises should Landlord elect this improvement. Upon
payment of any repair charged to the said fund, Landlord will send Tenant a copy
of the invoice therefor. At the end of the term of this lease, Landlord shall
return to Tenant any unexpended portion of the accumulated monies in said fund.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed
this Lease as of the day and year first above written.
VANDERBILT ASSOCIATES
By:
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Partner
AMERICAN TISSUE CORP.
By:
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STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
On this day of ,1989, before
me personally came to me known, who thereupon made solemn
oath and acknowledged before me that he is a member of VANDERBILT ASSOCIATES,
the partnership in whose behalf he acts and whose name he executed the foregoing
instrument.
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Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
On this 6th day of February,1989, before me personally came to me
known, who being by me duly sworn, did depose and say that he resides at
279 East 44th Street, New York, New York 10017 that he is President of
AMERICAN TISSUE CORP., the corporation described in and which executed the
foregoing instrument; that he knows the seal of the said corporation; that
the seal affixed to the said instrument is such corporate seal; that it was
so affixed by order of the Board of Directors of the said corporation; and
that he signed his name thereto by like order.
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Notary Public
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