New York-East Northport-353-355 Larkfield Road Lease - Johanna Merson / Didit LLC and Sybari Software Inc.
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STANDARD FORM OF STORE LEASE
THE REAL ESTATE BOARD OF NEW YORK, INC.
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AGREEMENT OF LEASE, made as of this 16th day of June 2000, between JOHANNA
MERSON / DIDIT LLC, party of the first part, hereinafter referred to as OWNER,
and SYBARI SOFTWARE, INC. party of the second part, hereinafter referred to as
TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner in
the building known as 353 - 355 LARKFIELD ROAD, EAST NORTHPORT, N.Y. for the
term of TEN (10) YEARS (or until such term shall sooner cease and expire as
hereinafter provided) to commence on the 1st day of OCTOBER, 2000 TWO THOUSAND,
and to end on the 30th day of SEPTEMBER, 2010 and both dates inclusive, at an
annual rental rate of SEE LEASE RIDER TWO (II)
This lease consists of six (6) pre-printed pages and four (4) typed rider pages.
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 OFFICE USE
and for no other purpose. Tenant shall at all times conduct its business in a
high grade and reputable manner, shall not violate Article 37 hereof, and shall
keep show windows and signs in a neat and clean condition.
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 in each instance 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 workman's
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 done for,
or materials furnished to, Tenant, whether or not done pursuant to this article,
the same shall be discharged by Tenant within 30 days thereafter, at Tenant's
expense, by payment or 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 on 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 rights 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 installation 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.
REPAIRS:
4. Owner shall maintain and repair the public portions of the building, both
exterior and interior, except that if Owner allows Tenant to erect on the
outside of the building a sign or signs, of a hoist, lift or sidewalk elevator
for the exclusive use of Tenant. Tenant shall maintain in such exterior
installations in good appearance and shall cause the same to be operated in a
good and workmanlike manner and shall make all repairs thereto necessary to keep
same in good order and condition, at Tenant's own cost and expense, and shall
cause the same to be covered by the insurance provided for hereafter in Article
8. Tenant shall, throughout the term of this lease, take good care of the
demised premises and the fixtures and appurtenances therein, and the sidewalks
adjacent thereto, and at its sole cost and expense, make all non-structural
repairs thereto as and when needed to preserve them in good working order and
condition, reasonable wear and tear, obsolescence and damage from the elements,
fire and other casualty, excepted. If the demised premiss be or become infested
with vermin, Tenant shall at Tenant's expense, cause the same to be exterminated
from time to time to the satisfaction of Owner. Except as specifically provided
in Article 9 or elsewhere in this lease, there shall be no allowance to the
Tenant for the diminuation of rental value and no liability on the part of Owner
by reason of inconvenience, annoyance or injury to business arising from Owner,
Tenant or others making or failing to make any repairs, alterations, additions
or improvements in or to any portion of the building including the erection or
operation of any crane, derrick or sidewalk shed, or in or to the demised
premises or the fixtures, appurtenances or equipment thereof. It is specifically
agreed that Tenant shall be not entitled to any set off 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 with respect to the making of repairs 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 New York State 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:
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 or the
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, and
with respect to the portion of the sidewalk adjacent to the premises, if the
premises are on street level, whether or not arising out of Tenant's use or
manner of use thereof, 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). Except as provided in Article 29 hereof, 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 shall not do
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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. 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. If the fire insurance rate shall, at the
beginning of the 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, to comply with the
terms of this article. 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 a 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 rate then applicable to said
premises.
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 from time to time execute promptly any certificate that Owner may
request.
TENANT'S LIABILITY INSURANCE PROPERTY LOSS, DAMAGE, INDEMNITY:
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. Tenant agrees, at Tenant's sole
cost and expense, to maintain general public liability insurance in standard
form in favor of Owner and Tenant against claims for bodily injury or death or
property damage occurring in or upon the demised premises, effective from the
date Tenant enters into possession and during the term of this lease. Such
insurance shall be in an amount and with carriers acceptable to the Owner. Such
policy or policies shall be delivered to the Owner. On Tenant's default in
obtaining or delivering any such policy or policies or failure to pay the
charges therefor, Owner may secure or pay the charges for any such policy or
policies and charge the Tenant as additional rent therefor. 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 agent, 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 subtenant, and any agent,
contractor, employee, invitee or licensee of any subtenant. 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 and other items of additional 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 and other items of additional rent as
hereinafter expressly provided 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 (or sooner reoccupied in part by Tenant
then rent shall be apportioned as provided in subsection (b) above), subject to
Owner's right to elect not to restore the same as hereinafter provided. (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 or 30 days after adjustment of
the insurance claim for such fire or casualty, whichever is sooner, 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
Owner'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 shall 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 with respect to subparagraphs (b), (d), and (e) above, against the
other or any one claiming through or under each of them by way of subrogation or
otherwise. The release and waiver herein referred to shall be deemed to include
any loss or damage to the demised premises and/or to any personal property,
equipment, trade fixtures, goods and merchandise located therein. 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. 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. Tenant shall have the right to make
an independent claim to the condemning authority for the value of Tenant's
moving expenses and personal property, trade fixtures and equipment, provided
Tenant is entitled pursuant to the terms of the lease to remove such property,
trade fixtures and equipment at the end of the term and provided further such
claim does not reduce Owner's award.
ASSIGNMENT, MORTGAGE, ETC.:
11. Tenant, for itself, its heirs, distributees, executors, administrators,
legal representatives, successors 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 or the majority partnership interest of a
partnership 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. TENANT SHALL PAY ALL
ELECTRIC AND GAS BILLS
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 any portion
of the building or which Owner may elect to perform, in the premises, following
Tenant's failure to make repairs or perform any work which Tenant is obligated
to perform under this lease, or for the purpose of complying with laws,
regulations and other directions of governmental authorities. 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, floors or ceiling, wherever practicable. 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 and may, during said six months period, place upon the demised premises
the usual notice "To Let" and "For Sale" which notices Tenant shall permit to
remain thereon without molestation. 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 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. Owner shall have the right at any time,
without the same constituting an eviction and without incurring liability to
Tenant therfor 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.
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OCCUPANCY:
15. Tenant will not at any time use or occupy the demised premises in violation
of Articles 2 or 37 hereof, or of the certificate of occupancy issued for the
building of which the demised premises are a part. Tenant has inspected the
premise and accepts them as is, subject to the riders annexed hereto with
respect to Owner's work, if any. In any event, Owner makes no representation as
to the condition of the premises and Tenant agrees to accept the same subject to
violation whether or not of record.
BANKRUPTCY:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding, this
lease may be cancelled by Landlord 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 becomes 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, of
which fact Owner shall be the sole judge; 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 and 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 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.
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, and additional rent, shall
become due thereupon and be paid up to the time of such re-entry, dispossess
and/or expiration, (b) Owner may 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 subsequent 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, 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. 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. 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
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rent collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant or 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.
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, and if Owner, in connection therewith 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 attorney's fees, in instituting,
prosecuting or defending any action or proceeding and prevails in any such
action or proceeding, such sums so paid or obligations incurred with interest
and costs shall be deemed to be additional rent hereunder and shall be paid by
Tenant to Owner within ten (10) days of rendition of any bill or statement to
Tenant therefor and 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.
NO REPRESENTATIONS BY OWNER:
20. Neither Owner nor Owner's agent 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 hereafter made shall be ineffective to
change, modify, discharge or effect 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:
21. 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 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:
22. 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 33
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
FAILURE TO GIVE POSSESSION:
23. 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 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 the 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 the condition required by this lease. If
permission is given to Tenant to enter into the possession of the demised
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 page
<PAGE>
one of 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:
24. 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
in 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:
25. 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:
26. 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 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, 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 of which have been or
are affected, either directly or indirectly, by war or other emergency, or when,
in the judgement of Owner, temporary interruption of such services is necessary
by reason of accident, mechanical breakdown, or to make repairs, alterations or
improvements.
BILLS AND NOTICES:
27. Except as otherwise in this lease provided, a bill, 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 addressed to Tenant at the
building of which the demised premises form a part or at the last known
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 bill 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.
WATER CHARGES:
28. If Tenant requires, uses or consumes water for any purpose in addition to
ordinary lavatory purposes (of which fact Tenant constitutes Owner to be the
sole judge) Owner may install a water meter and thereby measure Tenant's water
consumption for all purposes. Tenant shall pay Owner for the cost of the meter
and the cost of the installation thereof and throughout the duration of
Tenant's occupancy Tenant shall keep said meter and installation equipment in
good working order and repair at Tenant's own cost and expense. Tenant agrees
to pay for water consumed, as shown on said meter as and when bills are
rendered. Tenant covenants and agrees to pay the sewer rent, charge or any
other tax, rent, levy or charge which now or hereafter is assessed, imposed or
a lien upon the demised premises or the realty of which they are part pursuant
to law, order or regulation made or issued in connection with the use,
consumption, maintenance or supply of water, water system or sewage or sewage
connection or system. The bill rendered by Owner shall be payable by Tenant as
additional rent. If the building or the demised premises or any part thereof be
supplied with water through a meter through which water is also supplied to
other premises Tenant shall pay to Owner as additional rent, on the first day
of each month, % ($ ) of the total meter charges, as Tenant's portion.
Independently of and in addition to any of the remedies reserved to Owner
hereinabove or elsewhere in this lease, Owner may sue for and collect any monies
to be paid by Tenant or paid by Owner for any of the reasons or purposes
hereinabove set forth.
SPRINKLERS:
29. Anything elsewhere in this lease to the contrary notwithstanding, if the New
York Board of Fire Underwriters or the Insurance Services Office or any bureau,
department or official of the federal, state or city government require or
recommend the installation of a sprinkler system or that any changes,
modifications, alterations, or additional sprinkler heads or other equipment be
made or supplied in an existing sprinkler system by reason of Tenant's business,
or the location of partitions, trade fixtures, or other contents of the demised
premises, or for any other reason, or if any such sprinkler system
installations, changes, modifications, alterations, additional sprinkler heads
or other such equipment, become necessary to prevent the imposition of a penalty
or charge against the full allowance for a sprinkler system in the fire
insurance rate set by any said Exchange or by any fire insurance company, Tenant
shall, at Tenant's expense, promptly make such sprinkler system installations,
changes, modifications, alterations, and supply additional sprinkler heads or
other equipment as required whether the work involved shall be structural or
non-structural in nature. Tenant shall pay to Owner as additional rent the sum
of $ , on the first day of each month during the term of this lease, as
Tenant's portion of the contract price for sprinkler supervisory service.
SECURITY:
31. Tenant has deposited with Owner the sum of $30,000 as security 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, 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 as 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.
CAPTIONS:
32. 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 provision thereof.
DEFINITIONS:
33. The term "Owner" 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 of
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 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:
34. 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:
35. Tenant and Tenant's servants, employees, agents, visitors, and licenses
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
<PAGE>
parties hereto agree to submit the question of the reasonableness of such Rule
of 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 (15) days after
the giving of notice thereof. Nothing 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 licensees.
Pornographic Uses Prohibited:
37. Tenant agrees that the value of the demised premises and the
reputation of the Owner will be seriously injured if the premises are used for
any obscene or pornographic purposes or any sort of commercial sex
establishment. Tenant agrees that Tenant will not bring or permit any obscene or
pornographic material on the premises, and shall not permit or conduct any
obscene, nude, or semi-nude live performances on the premises, nor permit use of
the premises for nude modeling, rap sessions, or as a so called rubber goods
shops, or as a sex club of any sort, or as a "massage parlor." Tenant agrees
further that Tenant will not permit any of these uses by any sublessee or
assignee of the premises. This Article shall directly bind any successors in
interest to the Tenant. Tenant agrees that if at any time Tenant violates any of
the provisions of this Article, such violation shall be deemed a breach of a
substantial obligation of the terms of this lease and objectionable conduct.
Pornographic material is defined for purposes of this Article as any written or
pictorial manner with prurient appeal or any objects of instrument that are
primarily concerned with lewd or prurient sexual activity. Obscene material is
defined here as it is in Penal law Section 235.00.
Estoppel Certificate:
38. 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 which the rent and
additional rent have been paid, and stating whether or not there exists any
defaults by Owner under this lease, and, if so, specifying each such default.
Successors and Assigns:
39. 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/ JOHANNA MERSON
---------------------------------------------
-------------------------------------- ---------------------------------------------
Witness for Tenant: SYBARI SOFTWARE INC. BY
---------------------------------------------
/s/ ROBERT WALLACE
-------------------------------------- ---------------------------------------------
ROBERT WALLACE, PRES.
ACKNOWLEDGMENTS
CORPORATE OWNER CORPORATE TENANT
STATE OF NEW YORK, ss.: STATE OF NEW YORK, ss.:
County of County of Suffolk
On this day of , 19 , On this 11th day of June, 2000,
before me personally came before me personally came Robert Wallace
to me known, who being by me duly sworn, did to me known, who being by me duly sworn, did
depose and say that he resides in depose and say that he resides in Suffolk
that he is the of County that he is the President of Sybari
the corporation described in and which Software, Inc. the corporation described in
executed the foregoing instrument, as OWNER; and which executed the foregoing instrument,
that he knows the seal of said corporation; as TENANT; that he knows the seal of said
the seal affixed to said instrument is such corporation; the seal affixed to said
corporate seal; that it was so affixed by instrument is such corporate seal; that it was
order of the Board of Directors of said so affixed by order of the Board of Directors
corporation, and that he signed his name of said corporation, and that he signed his
thereto by like order. name thereto by like order.
/s/ TOBIAS BERMAN
----------------------------------- --------------------------------------
INDIVIDUAL OWNER INDIVIDUAL TENANT
STATE OF NEW YORK, ss.: STATE OF NEW YORK, ss.:
County of County of
On this day of , 19 , On this day of , 19 ,
before me personally came before me personally came
to be known and known to me to be the to be known and known to me to be the
individual individual
described in and who, as OWNER, executed the described in and who, as TENANT, executed the
foregoing instrument and acknowledged to me foregoing instrument and acknowledged to me
that that
he executed the same. he executed the same.
----------------------------------- --------------------------------------
<PAGE>
ADDITIONAL GUARANTOR
GUARANTY
The undersigned Guarantor guarantees to Owner, Owner's successors and assigns,
the full performance and observance of all the agreements to be performed and
observed by Tenant in the attached Lease, including the "Rules and Regulation"
as therein provided, without requiring any notice to Guarantor of nonpayment, or
nonperformance, or proof, or notice of demand, to hold the undersigned
responsible under this guaranty, all of which the undersigned hereby expressly
waives and expressly agrees that the legality of this agreement and the
agreements of the Guarantor under this agreement shall not be ended, or changed
by reason of the claims to Owner against Tenant of any of the rights or remedies
given to Owner as agreed in the attached Lease. The Guarantor further agrees
that this guaranty shall remain and continue in full force and effect as to any
renewal, change or extension of the Lease. As a further inducement to Owner to
make the Lease Owner and Guarantor agree that in any action or proceeding
brought by either Owner of the Guarantor against the other on any matters
concerning the Lease or this guaranty Owner and the undersigned shall and do
waive trial by jury.
Dated: June 16, 2000
/s/ ROBERT G. WALLACE
-----------------------------------------
Guarantor
-----------------------------------------
Witness
216 ASHAROKEN AVE, NORTHPORT, NY
-----------------------------------------
Guarantor's Residence
353 LARKFIELD RD, E. NORTHPORT, NY
-----------------------------------------
Business Address
SYBARI SOFTWARE INC.
-----------------------------------------
Firm Name
STATE OF NEW YORK, ) ss.:
COUNTY OF SUFFOLK )
On this 16th day of June 2000, before me personally came Robert Wallace to me
known and known to me to be the individual described in, and who executed the
foregoing Guaranty and acknowledged to me that he executed the same.
-----------------------------------------
Notary
<PAGE>
GUARANTY
The undersigned Guarantor guarantees to Owner, Owner's successors and assigns,
the full performance and observance of all the agreements to be performed and
observed by Tenant in the attached Lease, including the "Rules and Regulation"
as therein provided, without requiring any notice to Guarantor of nonpayment,
or nonperformance, or proof, or notice of demand, to hold the undersigned
responsible under this guaranty, all of which the undersigned hereby expressly
waives and expressly agrees that the legality of this agreement and the
agreements of the Guarantor under this agreement shall not be ended, or changed
by reason of the claims to Owner against Tenant of any of the rights or
remedies given to Owner as agreed in the attached Lease. The Guarantor further
agrees that this guaranty shall remain and continue in full force and effect as
to any renewal, change or extension of the Lease. As a further inducement to
Owner to make the Lease Owner and Guarantor agree that in any action or
proceeding brought by either Owner or the Guarantor agree that in any action or
proceeding brought by either Owner or the Guarantor against the other on any
matters concerning the Lease or of this guaranty that Owner and the undersigned
shall and do waive trial by jury.
Dated: June 16, 2000
----------------- --
/s/ Tobias Berman
----------------------------
Guarantor
----------------------------
Witness
68-10 Dartmouth St., Forest Hills, NY 11375
------------------------------------------------
Guarantor's Residence
353 Lakefield Rd., E. Northport, NY
------------------------------------------------
Business Address
Sybari Software Inc.
------------------------------------------------
Firm Name
STATE OF NEW YORK ) ss.:
COUNTY OF SUFFOLK )
On this 16th day of June, 2000, before me personally came Tobias Berman to me
known and known to me to be the individual described in, and who executed the
foregoing Guaranty and acknowledged to me that he executed the same.
------------------------------------------
Notary
---> IMPORTANT - PLEASE READ <---
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 35.
1. The sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by any
Tenant or used for any purpose other than for ingress to and egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
Owner. There shall not be used in any space, or in the public hall of the
building, either by any tenant or by jobbers, or others in the delivery or
receipt of merchandise, any hand trucks except those equipped with rubber tires
and safeguards.
2. If the premises are situated on the ground floor of the building, Tenant
thereof shall further, at Tenant's expense, keep the sidewalks and curb in
front of said premises clean and free from ice, snow, etc.
3. The water and wash closets and plumbing fixtures shall not be used for any
purposes other than those for which they were designed or constructed.
4. Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the demised premises, or permit or suffer the demised
premises to be occupied or used in a manner offensive or objectionable to Owner
or other occupants of the building by reason of noise, odors and/or vibrations
or interfere in any way with other Tenants or those having business therein.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premises if
the same is visible from the outside of the premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance
door of the premises. In the event of the violation of the foregoing by any
Tenant, Owner may remove same without any liability and may charge the expense
incurred by such removal to Tenant or Tenants violating this rule. Signs on
interior doors and directory tablet shall be inscribed, painted or affixed for
each Tenant by Owner at the expense of such Tenant, and shall be of a size,
color and style acceptable to Owner.
6. No Tenant shall mark, paint, drill into, or in any way deface any part of
the demised premises or the building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior written
consent of Owner, and as Owner may direct. No Tenant shall lay linoleum, or
other similar floor covering, so that the same shall come in direct contact
with the floor of the demised premises, and, if linoleum or other similar floor
covering is desired to be used an interlining of builder's deadening felt shall
be first affixed to the floor, by a paste or other material, soluble in water,
the use of cement or other similar adhesive material being expressly prohibited.
7. Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to and removed from the premises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations or the
lease of which these Rules and Regulations are a part.
8. Owner reserves the right to exclude from the building between the hours of 6
P.M. and 8 A.M. and at all hours on Sundays, and holidays all persons who do
not present a pass to the building signed by Owner. Owner will furnish passes
to persons for whom any Tenant requests same in writing. Each Tenant shall be
responsible for all persons for whom he requests such pass and shall be liable
to Owner for all acts of such person.
9. Owner shall have the right to prohibit any advertising by any Tenant which,
in Owner's opinion, tends to impair the reputation of Owner or its desirability
as a building for stores or offices, and upon written notice from Owner, Tenant
shall refrain from or discontinue such advertising.
10. Tenant shall not bring or permit to be brought or kept in or on the demised
premises, any inflammable, combustible, or explosive, or hazardous fluid,
material, chemical or substance, or cause or permit any odors of cooking or
other processes, or any unusual or other objectionable odors to permeate in or
emanate from the demised premises.
11. Tenant shall not place a load on any floor of the demised premises
exceeding the floor load per square foot area which it was designated 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
setting sufficient in Owner's judgement to absorb and prevent vibration, noise
and annoyance.
12. Refuse and Trash - Tenant covenants and agrees, at its sole cost and
expense, to comply with all present and future laws, orders and regulations of
all state, federal, municipal and local governments, departments, commissions
and boards regarding the collection, sorting, separation and recycling of waste
products, garbage, refuse and trash. Tenant shall pay all costs, expenses,
fines, penalties or damages that may be imposed on Owner or Tenant by reason of
Tenant's failure to comply with the provisions of this Building Rule 12, and,
at Tenant's sole cost and expense, shall indemnify, defend and hold Owner
harmless (including reasonable legal fees and expenses) from and against any
actions, claims and suits arising from such non-compliance, utilizing counsel
reasonably satisfactory to Owner.
Address
Premises
================================================================================
TO
================================================================================
STANDARD FORM OF
[SEAL] STORE [SEAL]
LEASE
THE REAL ESTATE BOARD OF NEW YORK, INC.
(C) Copyright 1994. All rights Reserved.
Reproduction in whole or in part prohibited.
================================================================================
Dated 19
Rent Per Year
Rent Per Month
Term
From
To
Drawn by........................................
Checked by......................................
Entered by......................................
Approved by.....................................
================================================================================
<PAGE>
JOHANNA MERSON/DIDIT LLC
TO
SYBARI SOFTWARE INC
RIDER I
THIS LEASE IS FOR A PERIOD OF TEN YEARS. AS OF FEBRUARY 1, 2007 TENANT MAY GIVE
WRITTEN NOTICE OF CANCELLATION OF THIS LEASE TO TAKE EFFECT SEPTEMBER 30, 2007,
TOGETHER WITH PAYMENT OF TWO HUNDRED THOUSAND DOLLARS ($200,000) TO THE
LANDLORD. PROVIDED THESE CONDITIONS AND ALL OTHER OBLIGATIONS AND CONDITIONS OF
THIS LEASE HAVE BEEN FULFILLED INCLUDING BUT NOT LIMITED TO PAYMENT OF ALL RENTS
AND TAXES IN A TIMELY FASHION UP TO AND INCLUDING SEPTEMBER 30, 2007, THEN THE
TENANT IS RELIEVED OF ALL FURTHER OBLIGATIONS UNDER THIS LEASE INCLUDING
PERSONAL GUARANTEES.
<PAGE>
JOHANNA MERSON/DIDIT LLC
TO
SYBARI SOFTWARE INC
RIDER II
THE ANNUAL RENTS PAYABLE IN EQUAL MONTHLY INSTALLMENTS IN ADVANCE OF THE FIRST
DAY OF EACH CALENDAR MONTH DURING THE TERM OF THIS LEASE SHALL BE AS FOLLOWS:
OCTOBER 1, 2000 TO MARCH 31, 2004 AT $225,000.00 (TWO HUNDRED AND TWENTY-FIVE
THOUSAND DOLLARS) ANNUALLY, PAYABLE AT EIGHTEEN THOUSAND SEVEN HUNDRED FIFTY
DOLLARS ($18,750) MONTHLY. APRIL 1, 2004 TO SEPTEMBER 30, 2007 TWO HUNDRED FIFTY
THOUSAND DOLLARS ($250,000) ANNUALLY, PAYABLE AT TWENTY THOUSAND EIGHT HUNDRED
THIRTY FOUR DOLLARS ($20,834.00) MONTHLY OCTOBER 1, 2007 TO SEPTEMBER 30, 2010
(TWENTY THOUSAND TEN) AT A RENT OF $275,000 PER ANNUM PAYABLE MONTHLY AT
$23,916.66 MONTHLY. IN ADDITION, TENANT WILL PAY ALL APPLICABLE TAXES ON THE
BUILDING, LAND, PARKING LOTS AND ANY OTHER MUNICIPLE OR COUNTY TAXES CHARGEABLE
TO THIS ENTIRE PROPERTY, TO THE LANDLORD IN EQUAL MONTHLY INSTALLMENTS OF ANNUAL
TAXES AS DESCRIBED ABOVE, INCLUDING ANY ONE TIME CHARGES OR ASSESSMENTS.
<PAGE>
JOHANNA MERSON/DIDIT LLC
TO
SYBARI SOFTWARE, INC
RIDER III
IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN THE PARTIES THAT LANDLORD, (OWNER)
SHALL BE RESPONSIBLE FOR REPAIRS TO THE STRUCTURE (ROOF, WINDOWS, BUT NOT GLASS
BREAKAGE) EXCEPT IF OTHERWISE PROVIDED HEREIN. ALL OTHER REPAIR AND MAINTENANCE
IS THE TENANTS RESPONSIBILITY.
IN THE EVENT TENANT DESIRES TO MAKE ANY ALTERATIONS OR ADDITIONS, PLANS SHALL BE
FIRST SUBMITTED TO LANDLORD FOR PERMISSION AND SAID PERMISSION SHALL NOT BE
UNREASONABLY WITHHELD. LANDLORD MAKES NO REPRESENTATIONS AS TO ADDITIONS,
ALTERATIONS OR USE OF THE PREMISES.
ALL ALTERATIONS OR ADDITIONS SHALL BE IN CONFORMITY WITH THE ZONING AND OTHER
RULES OF THE TOWN OF HUNTINGTON, COUNTY OF SUFFOLK AND STATE OF NEW YORK.
ALL DEMOLITION AND REMOVAL OF CONSTRUCTION DEBRIS AND OTHER MATERIALS IS THE
TENANT'S RESPONSIBILITY AND AT THE TENANT'S OWN EXPENSE.
TENANTS SHALL BE RESPONSIBLE FOR ALL MAINTENANCE OF PREMISES, BOTH INSIDE AND
OUT. MAINTENANCE SHALL INCLUDE, BUT NOT BE LIMITED TO TENANT PROVIDING,
MAINTAINING AND PAYING FOR ALL GROUNDSKEEPING INCLUDING SWEEPING OF PARKING LOTS
AND SIDEWALKS, CLEANING BUFFER AREAS, SNOW AND ICE REMOVAL AND WATERING AND
TRIMMING OF LANDSCAPING.
TENANT SHALL PROVIDE ITS OWN GARBAGE DUMPSTER OR DUMPSTERS TO BE PLACED NEAR THE
BUILDING AND SHALL PAY FOR ALL GARBAGE REMOVAL AND SHALL FOLLOW TOWN RULES OF
SORTING AND RECYCLING.
AFTER THE INITIAL PERIOD OF GUARANTEE/WARRANTY OF AIR CONDITIONING AND HEATING
UNITS IS OVER, TENANT WILL PAY ANNUAL SERVICE CONTRACTS TO MAINTAIN HEATING AND
AIR CONDITIONING UNITYS AND WILL EITHER PAY SERVICE COMPANY OR PROVIDE
THEMSELVES FOR FILTERS TO BE CLEANED OR CHANGED ON A REGULAR BASIS.
<PAGE>
JOHANNA MERSON/DIDIT LLC
TO
SYBARI SOFTWARE, INC.
RIDER IV
IN THE EVENT TENANT ELECTS TO CANCEL THIS LEASE BY GIVING SIX MONTHS WRITTEN
NOTICE AND FULLFILLING ALL OTHER TERMS OF CANCELLATION LANDLORD HAS PERMISSION
TO SHOW AT REASONABLE HOURS THE PREMISES TO FUTURE PROSPECTIVE OCCUPANTS OR
PURCHASERS OR BROKERS.
RIDER V
THIS LEASE CONSISTS OF TENANTS OCCUPANCY OF THE PREMISES CURRENTLY OCCUPIED BY
TENANT KNOWN AS 353 LARKFIELD RD, EAST NORTHPORT AND THE PREMISES CURRENTLY
OCCUPIED UNDER LEASE TO CHANGING TIMES PUB AND KNOWN AS 355 LARKFIELD RD, EAST
NORTHPORT.
UPON EXECUTION OF THIS LEASE AND PAYMENT OF ADDITIONAL SECURITY OF $10,000,
BRINGING TOTAL SECURITY TO $30,000, LANDLORD WILL GIVE NOTICE TO CHANGING TIMES
PUB TO VACATE THE PREMISES THEY OCCUPY BY SEPTEMBER 30th, 2000, OR SOONER.
FOR THE SPACE CURRENTLY OCCUPIED BY CHANGING TIMES PUB, THIS LEASE IS SUBJECT TO
LANDLORD RECEIVING VACANT POSSESSION OF SAID PREMISES WHICH SHALL HEREAFTER BE
REFERRED TO AS "ADDITIONAL SPACE".
ANY AND ALL ALTERATIONS, IMPROVEMENTS AND RE-MODELING SAID ADDITIONAL SPACE BOTH
INTERIOR AND EXTERIOR SHALL:
A) BE AT TENANTS SOLE EXPENSE
B) BE PERFORMED IN COMPLIANCE WITH ALL RULES AND REGULATIONS AND ZONING
OF THE TOWN OF HUNTINGTON, COUNTY OF SUFFOLK AND STATE OF NEW YORK.
C) BE SUBJECT TO LANDLORDS APPROVAL OF EXTERIOR ALTERATIONS AND BE IN
CONFORMITY WITH EXISTING EXTERIOR OF SPACE NOW OCCUPIED BY TENANT.
IN THE EVENT TENANT OF ADDITIONAL SPACE LEAVES EARLIER OR LATER THAN SEPTEMBER
30, 2000 RENT SHALL BE ADJUSTED BETWEEN LANDLORD AND TENANT SO THAT TENANT PAYS
THE RENT UNDER THIS LEASE AS OF THE DATE OF VACANCY OF TENANTS CURRENTLY IN
ADDITIONAL SPACE. RENT UNDER PRIOR LEAse shall remain in effect until additional
space is vacated by current occupant.
TENANT SYBARI SOFTWARE AGREES TO RE-IMBURSE LANDLORD UP TO TWENTY THOUSAND
DOLLARS ($20,000) OF COSTS INCURRED BY LANDLORD TO ACHIEVE THE VACATING OF THE
ADDITIONAL SPACE TO COVER EXPENSES OF LEGAL FEES, INCENTIVES ETC.