Exhibit 10(a)
AGREEMENT OF LEASE
AGREEMENT OF LEASE made as of October , 1989, between
AIP ASSOCIATES, a partnership having its principal office at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ West, CS 5341, Melville, New York
11747-0983 (hereinafter referred to as "Landlord") and SCIENTIFIC
INDUSTRIES, INC., a corporation, having its principal office at ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as "Tenant").
RECITAL
Landlord has agreed to demise and lease unto Tenant and Tenant has
agreed to hire and take from Landlord the premises described,
outlined in red on Exhibit A annexed hereto and made a part hereof
(the "Premises"), which Premises are located in the building and
improvements known as ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ (the
"Building"), together with the right to use, in common with others,
the parking area serving the Building as shown on said Exhibit A.
The legal description of the land comprising the Building and said
parking area is attached hereto as Exhibit A-1. Now, therefore, in
consideration of the terms, conditions and covenants of this Lease,
it is hereby agreed as follows:
TERM
1. Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord, the Premises for a term of ten (10) years (or until
such term shall sooner cease and expire as hereinafter provided) to
commence January 1, 1990 and to terminate on December 31, 1999.
TITLE
2. The Premises are let subject to covenants, restrictions and
easements of record, governmental laws, rules, regulations and
order, and the reservation by Landlord of all air rights above,
around and about the Premises and all rights to increase the size of
the Building or the sizes of surrounding buildings based on the air
rights appurtenant to the Premises, as, if and when permitted by any
present or future zoning laws, ordinances, orders or regulations.
RENT
3. (a) Tenant covenants to pay to Landlord at its principal
office, or at such place as Landlord shall from time to time direct
in writing, the minimum annual rent set forth below, and
the additional rent required to be paid pursuant to the terms of
this Lease. Minimum annual rent and such other additional rent and
charges which Tenant shall be required to pay are hereinafter
sometimes referred to as "Rent". Minimum annual rent shall be as
follows:
During the first year of the term of this lease the basic annual
rent shall be $144,354.21, payable $22,208.34 for the first month
and $11,104.14 for each of the second through twelfth months.
During the second year the basic annual rental shall be $138,999.96,
payable $11,583.33 in equal monthly installments.
During the third year the basic annual rental shall be $144,750.00,
payable $12,062.50 in equal monthly installments.
During the fourth year the basic annual rental shall be $151,250.04,
payable $12,604.17 in equal monthly installments.
During the fifth year the basic annual rental shall be $157,749.96,
payable $13,145.83 in equal monthly installments.
During the sixth year the basic annual rental shall be $165,000.00,
payable $13,750.00 in equal monthly installments.
During the seventh year the basic annual rental shall be $172,500.00
payable $14,375.00 in equal monthly installments.
During the eighth year the basic annual rental shall be $180,500.04,
payable $15,041.67 in equal monthly installments.
During the ninth year the basic annual rental shall be $189,000.00,
payable $15,750.00 in equal monthly installments.
During the tenth year the basic annual rental shall be $175,591.66,
payable $16,500.00 first through eleventh months and $5,395.83 for
the twelfth month.
(b) Tenant shall pay the minimum annual rent in equal monthly
installments in advance on the first day of each calendar month
included in the term except for the first month's rent which shall
be paid one-half (1/2) on the signing of this Lease and one-half
(1/2) on January 1, 1990.
(c) All Rent shall be paid 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, at the address of Landlord set
forth in this Lease or at such other place as Landlord in writing
may designate without (except as may be otherwise herein expressly
provided) any set-off or deduction whatsoever and without any prior
demand therefore.
(d) Unless another time shall be herein expressly provided,
any additional rent shall be due and payable on demand or together
with the next succeeding installment of minimum annual rent,
whichever shall first occur; and Landlord shall have the same
remedies for failure to pay the additional rent as for a non-payment
of minimum annual rent.
(e) For any portion of a calendar month included at the
beginning or end of the term, Tenant shall pay 1/30th of each
monthly installment of Rent for each day of such portion, payable in
advance at the beginning of such portion.
(f) From and after fifteen (15) days after the due date of
any payment of Rent, interest shall accrue thereon at the rate of
1.0% per month.
(g) If Tenant shall default in making any payment required
to be made by Tenant or in performing any obligation of Tenant under
this Lease which shall require the expenditure of money, Landlord
may, but shall not be obligated to make such payment on behalf of
Tenant or expend such sum as may be necessary to perform or fulfill
such obligation. Any sums so paid by Landlord shall be deemed Rent
and shall be due and payable to Landlord at the time of payment of
the next installment of minimum annual rent.
USE OF PREMISES
4. Tenant shall use and occupy the Premises solely for: light
manufacturing, assembly, warehousing and distribution of electronic
parts and components, sterilizers and mechanical apparatus, and
executive and general offices in connection therewith, and for no
other purpose. Tenant shall not use or permit the use of the
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. Tenant may
change the use of the Premises to any other lawful use, provided the
same does not downgrade the character or reputation of the
industrial park in which the Building is located, to wit, Airport
International Plaza, and is in keeping with the other tenants
thereof. If, in Landlord's opinion, the changed use does downgrade
the character or reputation of Airport International Plaza or is not
in keeping with the business of the other tenants thereof, then the
dispute shall be submitted to arbitration pursuant to Article 16
(g). In no event, however, shall any loading be permitted by, in,
or through the front of the building.
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 lieu 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 of which the premises are part in the tax
year 1989/1990, excluding, however, taxes for special assessments
for local improvements not located on property owned by Landlord.
(C) "Formula"
Tenant's total
Square footage x increase = Tenant's share
Total square footage of increase
of building (60.54%)
(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 the 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.
LANDLORD'S WORK
6. (a) Tenant represents it has inspected the Premises
and agrees to occupy the same in its "as is" condition, except
that Landlord shall perform the following work ("Landlord's
Work") prior to the commencement to the term:
1. change heating system serving the Premises from
oil heat to gas heat;
2. repair the air-conditioning and
heating system serving the office area of the
Premises;
3. repair the roof, if and where needed;
4. repair and stripe the parking area serving
Building
(b) As used herein the term "substantially
completed" shall mean the date when the Premises are suitable
for occupancy by Tenant in accordance with the plans and
specifications with the exception of punch list items and
insubstantial details of construction, mechanical adjustment or
decoration the non completion of which does not materially
interfere with Tenant's use of the Premises; but if Landlord
shall be delayed in such "substantial completion" as a result of
(i) Tenant's failure to furnish plans and specifications; (ii)
Tenant's request for materials, finishes or installations other
than Landlord's standard; (iii) Tenant's changes in said plans;
(iv) the performance or completion of any work, labor or
services by a party employed by Tenant; or (v) Tenant's failure
to approve final plans, working drawings or reflective ceiling
plans, the commencement of the term of said lease and the
payment of rent there under shall be accelerated by the number
of days of such delay. The terms "term" and "term of this
Lease" or words of similar import shall be deemed to mean the
entire period demised hereby including all renewals or extensions.
MISCELLANEOUS
7. (A) Before performing any covenant or incurring any
expense on Tenant's behalf, for which Landlord will seek
reimbursement from Tenant, Landlord will give Tenant prior
notice thereof with reasonable opportunity for Tenant to perform
same.
(B) Wherever in this Lease the consent or approval
of Landlord is a condition precedent for the taking of any
action by Tenant, Landlord agrees not to unreasonably withhold
or delay its consent or approval.
(C) If Landlord shall default on any mortgage or
other lien or encumbrance affecting the Premises to which this
lease is subject and subordinate, Tenant shall have the right to
cure such default on behalf of, and at the expense of, Landlord,
together with interest thereon at the then highest legal rate,
and said sum may be deducted by Tenant from rent payments next
falling due hereunder.
(D) Whenever this lease provides that Landlord may
do or take any action that Landlord in its reasonable discretion
deems appropriate and/or necessary (or words of like import), if
Landlord shall do or take any action pursuant thereto and Tenant
should notify Landlord that it finds such action to be
unreasonable, arbitrary or capricious, then if the parties are
unable to amicably resolve the dispute it shall be submitted to
arbitration pursuant to Article 16 (g).
REPAIRS, MAINTENANCE, FLOOR LOADS AND RESTRICTIONS
8. (a) During the term of this Lease Landlord shall
make all structural and exterior repairs, including, without
limitation, repairs to the roof, exterior walls and foundation
of the Premises, except structural and exterior repairs required
as a result of the acts or negligence of Tenant, its agents,
officers, employees, patrons or licensees. Tenant shall at all
times keep and maintain the Premises in good order condition and
repair, shall make all other repairs required to the Premises
not required to be made by Landlord, including without limiting
the generality of the foregoing, (i) maintenance and repair of
the electrical, heating, plumbing, sprinkler and
air-conditioning facilities in the Premises; (ii) generally
keeping and maintaining interior of the Premises in good repair
and condition; and (iii) keeping the Premises clean and free of
debris; and (iv) repair and maintenance of all plate glass. If
Tenant fails to make any repairs or replacements required to be
made by Tenant, Landlord may perform same for the account of
Tenant at Tenant's expense and the cost thereof shall be due and
payable by Tenant to Landlord as Rent.
(b) Landlord shall maintain the exterior, the
parking lot, sidewalk, driveways and landscaping on, about or
serving the Premises in good order and repair, including snow
removal and sweeping. Tenant shall, as Tenant's contribution
with respect to such maintenance, pay to Landlord as additional
rent, within thirty (30) days after billing thereof by Landlord,
which billing shall not be more often than every three months,
Tenant's pro rata share (as such term is defined in Article 36)
of the actual cost of such maintenance. Landlord's bills shall
be accompanied by a statement showing in reasonable detail
Landlord's actual costs of the period in question. Tenant's
failure to object to any such statement within thirty (30) days
after service thereof shall be deemed an acceptance by Tenant of
the accuracy thereof. As used herein, the term "actual costs"
shall be deemed to include, landscaping, planting, replanting
and replacement of flowers, shrubbery and grass, public
liability, workmen's compensation insurance with respect to the
work to be performed by Landlord, striping, lighting, if lights
are now or at any time hereafter placed within said parking
areas (including cost of electricity and maintenance and
replacement of fixtures and bulbs), repair of paving, curbs and
walkways, repair and cleaning of drainage to implement all of
the foregoing (including workmen's compensations insurance
covering such personnel,) other similar direct costs of the type
incurred in the operation of comparable properties plus 15% of
all of the foregoing costs to cover Landlord's administrative
and overhead costs.
(c) Landlord shall not be required to commence any
repairs required to be performed by it until after notice from
Tenant that same are necessary, which notice, except in the case
of an emergency, shall be in writing and shall permit Landlord
ten (10) days in which to commence such repair. When necessary
by reason of accident or other casualty occurring in the
Building or at the Premises or elsewhere on Landlord's
surrounding property, or in order to make any necessary repairs,
alterations, or improvements in or relating to the Building or
the Premises or other portions of Landlord's property, Landlord
reserves the right to interrupt, temporarily, and on prior
written notice to Tenant, shall have been completed. There
shall be no abatement in rent because of any such interruption
if Landlord shall pursue such work with reasonable diligence and
dispatch.
(d) Tenant shall not place a load upon any floor of
the Premises which exceeds the floor load per square foot area
which such floor was designed to carry. If Tenant shall desire
a floor load in excess of that for which the floor of any
portion of the Premises is designed, upon submission to Landlord
of plans showing the location of and the desired floor live load
for the area in question, Landlord may strengthen and reinforce
the same, at Tenant's sole expense, so as to carry the live load
desired. Business machines and mechanical equipment used by
Tenant which cause vibration or noise that may be transmitted to
the Building or to any occupiable space to such a degree as to
be reasonably objectionable to Landlord or to any tenants in the
Building shall be placed and maintained by Tenant, at its
expense, in settings of cork, rubber or spring-type vibration
eliminators sufficient to eliminate such vibration or noise.
(e) Tenant shall comply with the following
restrictions with respect to the Premises:
(i) Tenant shall store all trash and refuse in
appropriate sealed and covered containers either within the
Premises or in a concealed location at the rear of the Building
and shall attend to the regular disposal and removal thereof.
(ii) Tenant shall receive all deliveries, load and
unload goods, merchandise, supplies, fixtures, equipment,
furniture and rubbish only through proper service doors and
loading docks serving the Building, but in no event through the
main front entrance thereof.
(iii) 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 or to the grading,
planting or landscaping of the exterior of the Building.
(iv) Tenant shall not place or install or suffer to
be placed or installed any sign upon the Building or 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.
(x) Paper signs and stickers;
(y) Moving, flickering or flashing lights;
(z) Exposed neon or fluorescent tubes
or other exposed light sources.
(v) Tenant shall not permit the parking
of any vehicle on the streets and roadways adjoining
or surrounding the Building and Tenant shall require
its employees, customers, invitees, licensees and
visitors to park only in the parking areas serving the
Premises. Tenant shall at all times be permitted its
pro rata share of parking spaces in the parking lot of
the Building, however, Landlord may, at any time,
designate, at landlord's discretion, the exact
location and identify Tenant's pro rata share of
parking spaces and thereafter Tenant shall cause its
employees, customers, invitees, licensees and visitors
to park only in the designated parking spaces. Tenant
agrees that after Tenant shall have received a prior
written warning, any violators of this parking
restriction may be towed away be Landlord at Tenant's
sole cost and expense and Tenant shall indemnify,
defend and hold Landlord harmless against any claims
or liabilities (including Landlord's attorneys' fees)
arising by reason of such towing by Landlord. Tenant
shall have the use of fifty-five (55) parking spaces
in the parking area servicing the Building, as shown
on Exhibit A and upon Tenant's request Landlord will
set aside a specific area (or areas) for Tenant's
reserved parking and exclusive use.
(v) Tenant shall not manufacture or store
any item which, in the reasonable opinion of Landlord,
causes offensive odors, irritations, or any discomfort
to occupants of the Building of which the Demised
Premises form a part.
TENANT'S ALTERATIONS
9. (a) Tenant shall not make (i) any
structural alterations in or to the Premises or the
Building without Landlord's prior written consent, or
(ii) make any additions to the Building.
(b) Tenant may, without Landlord's
consent, make non-structural alterations or
improvements to the Premises, the cost of which does
not exceed $5,000.00. No other alterations,
improvements or changes shall be made without
landlord's consent, which consent shall not be
unreasonably withheld. All buildings, improvements,
alterations and replacements, and all building service
equipment made or installed by or on behalf of Tenant
shall immediately upon completion or installation
thereof be and become the property of Landlord. All
trade fixtures, moveable partitions, furniture and
furnishings installed at the expense of Tenant shall
remain the property of Tenant and Tenant may remove
the same or any part thereof during the term of this
Lease, or if such termination, then within a
reasonable time thereafter, but Tenant shall at its
expense, repair, any and all damage to the Premises
resulting from or caused by such removal. Title to
any property which Tenant elects not to remove or
which is abandoned by Tenant shall, at the end of the
term vest in Landlord. Tenant shall not make any
non-structural alterations or improvements, the cost
of which exceeds $5,000.00 until it shall have first
submitted to Landlord plans and specifications for
such work and Landlord shall have approved same. All
such work to be performed by Tenant shall be in
accordance with the approved plans and specifications
and Landlord shall have the right at any time during
the pendency of such work to inspect the Premises and
the manner of construction. In the event of any such
repairs, alterations or improvements, Landlord shall
have the option to require Tenant to deliver to
Landlord at Tenant's cost and expense a bond
satisfactory to landlord in the sum equal to the cost
of the State of New York, which bond shall guaranty
completion of the repairs, alterations and
improvements and payment of the cost of the work. Any
mechanics liens filed at any time against the
Premises, for work claimed to have been performed or
for materials claimed to have been furnished to Tenant
or Tenant's contractors or subcontractors, shall be
discharged by Tenant within twenty days after filing
by bonding, payment or otherwise.
10. (a) Tenant shall pay for all fuel, heat,
water, electricity and other utilities consumed or
used by Tenant on the premises, as recorded on
separate meters installed by Landlord at Landlord's
expense, except for water which Landlord shall install
a check meter. Tenant shall also pay for its pro rata
share of the sprinkler fire line charges, imposed by
Suffolk County Water Authority, on the Building.
(b) Tenant shall be responsible for all
deposits with companies for service. Tenant shall
comply with all requirements of the utility supplying
said service. Landlord shall have no responsibility
for the installation of telephone service.
REQUIREMENTS OF LAW, SPRINLERS
11. (a) Tenant shall promptly execute and
comply with all statutes, ordinances, rules, orders,
regulations and requirements (including those which
require structural alterations) of the Federal, State,
County and Local Government and of any and all their
Departments and Bureaus applicable to the Premises,
for the correction, in, upon, or connected with the
Premises during the term, provided the same arises out
of Tenant's use and occupancy of the Premises; 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. In the event Tenant is
required by the provisions of this paragraph to make a
structural alteration, then, prior to the commencement
of such alteration, Tenant shall secure the payment of
the costs of such alteration with a surety bond or
other means satisfactory to Landlord. Notwithstanding
the foregoing, Tenant shall not be obligated to make
any structural alteration unless required because of
Tenant's act or neglect.
(b) Tenant shall keep and maintain any
sprinkler system no or hereafter installed in the
Premises in good repair and working condition, and if
the New York Board of Fire Underwriters of the New
York Fire Insurance Exchange or any Bureau, Department
or official of any Federal, State or local
governmental or quasi-governmental authority shall
require or recommend any changes, modifications or
alterations, including, without limitation, additional
sprinkler heads or other equipment, to be made or
supplied by reason of Tenant's business or the
location of partitions, trade fixtures, or other
contents of the Premises, or if such changes,
modifications, alterations, additional sprinkler heads
or other equipment in the Premises are necessary by
reason of any act of Tenant to prevent the imposition
of a penalty or charge against the full allowance for
a sprinkler system in the fire insurance rate as fixed
by said Exchange, or by any Fire Insurance Company
with respect to the Building, the Premises or any
adjoining or nearby buildings or improvements, Tenant
shall at Tenant's sole cost and expense, promptly make
and supply such changes, modifications, alterations,
additional sprinkler heads or other equipment. Tenant
shall throughout the term maintain for the benefit of
the Landlord and Tenant, with a responsible company
doing business in Suffolk County, a contract for
Sprinkler Supervisory Service and furnish Landlord
with copies thereof and all renewals, together with
evidence of payment.
(c) If by reason of Tenant's use and
occupancy or abandonment of the Premises, or if by
reason of the improper or careless conduct of any
business upon or use of the Premises, the fire
insurance rates for the Building, or any other tenants
or occupants of the Building of any adjoining or
nearby buildings or improvements or any tenants or
occupants thereof (including contents and equipment
coverage) shall at any time be higher than it
otherwise would be, Tenant shall reimburse Landlord as
additional rent hereunder, for that part of all fire
insurance premiums charged to such other owners,
tenants or occupants because of the conduct of such
business not so permitted, or because of the improper
or careless conduct of any business upon or use of the
Premises, and shall make such reimbursement upon the
first day of the month following billing thereof by
Landlord; but this covenant shall not apply to a
premium for any period beyond the expiration date of
this Lease, first above specified. In any action or
proceeding based upon or arising out of this
provision, a schedule or "make up" of rate for the
Building or any other affected insurance coverage
purporting to have been issued by New York Fire
Insurance Exchange, or other body making fire
insurance rate, shall be prima facie evidence of the
facts therein stated.
(d) 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, which have resulted from
acts or omissions of Tenant (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 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 of nature, known or unknown, contingent or
otherwise, arising out of, or in any way related to,
(i) the presence, disposal, release, or threatened
release of any hazardous Materials which are on, from,
or affecting the soil, water, vegetation, buildings,
personal property, persons, 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, regulation,
requirements, or demands of government authorities, or
any policies or requirement of a landlord which are
based upon or in any way related to such Hazardous
Materials, including, without limitation, attorney and
consultant fees, investigation an laboratory fees,
court costs, and litigation expenses, which have
resulted from acts or omissions of Tenant. 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,
which have resulted from acts or omissions of Tenant,
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
Transportation 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.
INSURANCE
12. (a) Tenant shall, during the
term of this Lease, maintain insurance against steam
boiler and machinery insurance written on a broad form
basis to the limit of $300,000.00, if there is a
boiler or pressure object or other similar equipment
in the Premises, all with waiver of right in all such
insurance policies to recover by way of subrogation
against Landlord, or Tenant, with insurance companies
of recognized responsibility authorized and licensed
to issue such policies in the State of New York
reasonable acceptable to Landlord, and to maintain
such insurance at all times during the term of this
Lease. Such policies shall be obtained by Tenant and
the policies referred to above shall be issued in the
name of Landlord and, at the direction of Landlord,
loss to be payable to Landlord and mortgagee as their
interests shall appear. The policies referred to
shall remain at all times in the possession of Land
lord or Landlord's mortgages. Tenant shall pay the
premiums on said policies and furnish proof of payment
to Landlord as they accrue, and if not so paid,
Landlord may, at its option, pay such premiums. All
premiums, whether or not paid by Landlord shall be
deemed additional rent and due and payable on the next
rent day or any subsequent rent day and payments of
such premiums by Landlord shall not be deemed a waiver
of the default in payment by Tenant. In lieu of
delivering insurance policies, Tenant may furnish a
Certificate of Insurance under a blanket insurance
policy covering other premises of Tenant, provided
that an endorsement is contained thereon naming
Landlord as the insured and owner of the Premises and
fixing a separate value for the coverage allocable to
the Premises. Tenant shall not be required to carry
any insurance for or in respect of any portion of the
Building not occupied by Tenant.
(b) Tenant shall, during the term of
this Lease, at Tenant's sole 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)/Three Million ($3,000,000.00)
Dollars bodily injury including death, and Two
Hundred Fifty Thousand ($250,000.00) Dollar limits
for property damage, such policy or (policies to
cover the 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
thereof, with evidence of payment of the premiums
thereon and shall be taken in well rated insurance
companies authorized to do business in the State of
New York.
(c) Landlord shall keep the Building insured
against by loss by fire with extended coverage, rent
insurance covering rent and any additional rent for
the entire term of this lease, malicious mischief,
storm damage, if available, and against such other
risks and such amounts as Landlord in its reasonable
discretion deems appropriate and necessary. Landlord
agrees that all such policies shall carry a waiver of
subrogation. Tenant shall pay its pro rata share (as
such term is defined in Article (36) of all such
insurance premiums thereof within ten (10) days after
billing by Landlord. With respect to any premium for
any policies commencing or expiring before or after
the termination of the term of this Lease, as the
case may be, such premiums shall be prorated based on
the number of months included in the term of this
lease during which the policy was in effect.
(d) Neither Landlord nor Tenant shall be liable
to the other for any business interruption or any
loss or damage to property or injury to or death of
persons occurring in the Building (including the
Leased Premises), or in any manner growing out of or
connected with the Tenant's use and occupation of the
Premises, the Building or the condition thereof,
whether or not caused by the negligence or other
fault of Landlord or Tenant and, or of their
respective agents, employees, subtenants, licensees,
or assigns. This release shall apply to the extent
that such business interruption, loss, or damage to
property or injury to or death of persons is covered
by insurance, regardless of whether such insurance is
payable to or protects Landlord or Tenant, or both.
Nothing herein shall be construed to impose any other
or greater liability upon either Landlord or Tenant
than would have existed in the absence of this
provision. This release shall be in effect only so
long as the applicable insurance policies contain a
clause to the effect that this release shall not
affect the right of the insured to recover under such
policies. Such clauses shall be obtained by the
parties whenever possible. The release in favor of
Landlord contained herein is in addition to and not
in s substitution for, or in dimunition of the hold
harmless and indemnification provisions hereof.
DAMAGE OR DESTRUCTION
13. (a) If the Building or the Premises
shall be damaged or destroyed during the term by fire
or other casualty covered by insurance then carried
by Landlord, 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.
(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
Premises, having regard to the extent to which Tenant
may be required to discontinue its business in the
Premises, an such abatement shall continue for the
period commencing with such destruction or damage and
ending with the substantial completion (as such term
is defined in Article 6) by Landlord of such work or
repair and/or construction as Landlord in obligated
to perform.
(c) If the Building shall be damaged or destroyed
to the extent of fifty (50%) percent or more of the
then replacement value thereof, exclusive of
foundations, by any cause, or should the damage be
occasioned by a casualty for which there was no
insurance, Landlord shall have the right to terminate
this Lease on written notice to Tenant served within
sixty (60) days after such damage or destruction.
(d) If this Lease shall not be terminated as in
this Article 13 provided, Landlord shall restore the
Building and the Premises and subparagraphs (a) and
(b) of this Article 13 shall be applicable.
(e) If at the time of the fire loss or
destruction, Landlord is unable to rebuild because of
(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) Landlord is unable to obtain
materials from its usual sources due to strikes,
lockouts, war, military operations and requirements,
National emergencies, etc., and such disability shall
continue for four (4) months, either party may cancel
this Lease upon giving written notice to the other.
(f) Tenant hereby waives any and
all rights granted by Section 227 of the Real
Property Law of the State of New York or any other
law of like import now or hereafter enacted.
SUBORDINATION
14. (a) This Lease shall
be subject and subordinate at all times to the lien
of any mortgages (i) now encumbering the Premises or
the Building and land of which the Premises are a
part and to all advances made or hereafter to be made
upon the security thereof, and (ii) hereafter made
provided same are made to a lending institution.
Tenant shall execute and deliver such further
instrument or instruments subordinating this Lease to
the lien of any such mortgage or mortgages as shall
be desired by any mortgagee or proposed mortgagee.
As used in this Lease, the term "lending institution"
shall mean savings bank, savings and loan
association, bank or trust company, real estate
investment trust, insurance company organized under
the laws of the United States or any state thereof,
university or Federal, State, Municipal or public, or
private, employee, welfare, pension or retirement
fund or system.
(b) Upon demand, Tenant shall
furnish to Landlord copies of its Annual Report for
the past five (5) years and such other information,
financial or otherwise, concerning Tenant which may
reasonably be required by any prospective
institutional mortgagee.
(c) Tenant shall, upon not
less that five (5) days' prior request by Landlord,
execute, acknowledge and deliver to Landlord a
statement in writing certifying (i) that this Lease
is unmodified and in full force and effect (or if
there have been modifications that the same are in
full force and effect as modified and identifying the
modifications), (ii) the dates to which the Rent and
other charges have been paid, and (iii) that so far
as the person making the certificate knows, 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 Landlord's
interest in this Lease, and prospective purchaser of
the Premises, or any prospective mortgagee, or
assignee of any mortgage upon the Premises. Landlord
shall deliver a similar statement upon request of
Tenant or its accountant.
(d) So long as there is a
first mortgage lien encumbering the Premises,
Landlord and Tenant shall not, without first
obtaining the written consent of such mortgagee,
enter into any agreement, the effect of which would
be to (i) cancel, terminate or surrender this Lease
or reduce the term; (ii) grant any concession in
respect thereof; (iii) reduce the Rent or require the
prepayment of any rent in advance of the due date
thereof; (iv) create any offsets or claims against
Rent; (v) assign in whole or in part any of the rents
there from of Tenant's interest in the Lease or
sublet the whole or any portion of the Premises
except as provided in this Lease.
(e) Tenant shall, within ninety(90)days
after the end of each fiscal year of Tenant, upon
request of Landlord, furnish to Landlord and any
first mortgagee of the Premises, copies of its latest
Annual Report.
(f) In the event of any act or omission
by Landlord which would give Tenant the right to
terminate this Lease or to claim a partial or total
eviction, Tenant shall not exercise any such right
until (i) it shall have served written notice, by
registered or certified mail, of such act or
omission, to Landlord and to the holder of any
mortgage whose name and address shall have been
furnished to Tenant in writing, at the last address
so furnished, and (ii) a reasonable period of time
for remedying such act or omission shall have elapsed
following the serving of such notice; provided,
however, that following the serving of such notice,
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.
INDEMNIFICATION
15. Tenant shall indemnify, defend, save
and hold Landlord harmless from and against any and
all liability and damages and any and all injury,
loss, claim, damage or suit of every kind and nature
including Landlord's reasonable counsel fees, to any
person, firm, association or corporation or to any
property arising out of or based upon related to or
in any way connected with the use or occupancy of the
Premises or the conduct or operation of Tenant's
business unless such injury, loss, claim or damage is
attributable solely to the negligence of Landlord or
its agents servants or employees.
EMINENT DOMAIN
16. (a) If the whole of the
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 of
vesting of title in the condemning authority, or such
earlier date as Tenant may be actually deprived of
the full use and enjoyment of the Premises.
(b) If 3,000 square feet or more of the
Building is taken under the power of eminent domain
or for any public or quasi-public purpose, Tenant or
Landlord shall have the option of canceling and
terminating this Lease by written notice served
within thirty (30) days after the taking, and this
Lease shall thereupon expire on the 60th day after
the serving by Landlord or said notice.
(c) If less than 3,000 square feet of
the Premises is taken this Lease shall remain in full
force and effect, however, minimum annual rent and
Tenant's pro rata share for the purposes of payment
of Taxes and insurance premiums and any other
additional rent required under this Lease which is
based upon the square foot area of the Premises in
relation to the Building shall be apportioned, pro
rata with the number of square feet of the Building
so taken. If Tenant's parking area only is taken,
then (i) if 25% or less is taken, this Lease shall
not terminate but minimum annual rent only shall,
unless Landlord provides substitute parking,
substantially equal in size to that which was
taken and within reasonable walking distance of the
Premises, within sixty (60) days after the taking,
this Lease shall at the option of Tenant, by written
notice served between the 61st and 90th days after
the taking, be cancelled and terminated effective
sixty (60) days from the date of said taking and if
such notice is not served, this Lease shall not
terminate but minimum rent only shall be apportioned
pro rata in accordance with the size and usefulness
of the portion taken.
(d) If this Lease is not terminated or
terminable under the provisions of this Article 16,
Landlord shall, with reasonable dispatch and at
Landlord's sole cost and expense, restore,
reconstruct and rebuild the remaining portion of the
Premises and the Building and all the appurtenances,
equipment, utilities, facilities and installations to
their condition prior to such taking, in such manner
that the resulting building and parking area and
driveways shall be a complete and integrated
structural, architectural an functional unit similar
to and of equal material and workmanship to the
Building and parking area and driveways prior to such
taking, with all the appurtenances, equipment,
utilities, facilities and installations throughout in
good working order so as to put both the parking area
and driveways and the Premises in proper condition to
be used by Tenant for the same purposes as 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.
(e) If the nature of the work to be
performed 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 and other charges to be paid by Tenant
under this Lease shall ▇▇▇▇▇ until substantial
completion, as such term is defined in Article 6, of
such work by Landlord.
(f) 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 shall receive any
part of any award made for Tenant's cost of moving
Tenant's trade fixtures.
(g) In the event of any dispute
under the provisions of this Article 16, it shall be
resolved by arbitration in Suffolk County, New York
before three disinterested and impartial arbitrators,
in accordance with the rules of the American
Arbitration Association. Each arbitrator shall have
a minimum of ten (10) years experience in dealing
with renting or appraising industrial real estate.
All fees and expenses of the arbitrators and the
American Arbitration Association shall be borne
equally by the parties.
RIGHT TO SUBLET OR ASSIGN
17. 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, which shall not be unreasonable
withheld, in each instance, except on the condition
hereinafter stated. The Tenant may assign this Lease
or sublet the Demised Premises with Landlord's written
consent, 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;
(iii) That in 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 or
certified 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 advise 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 the 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, under tenant or occupant, and apply the net
amount collected to the rent herein reserved;
(B) Notwithstanding anything contained in
this Article 17 to the contrary, no assignment or
under letting 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 notice
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% 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 or
substantially all of its assets 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 unreasonable 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.
RIGHT TO INSPECT:
POSTING SIGNS
18. (a) Tenant shall permit Landlord
or Landlord's agents to enter the Premises at all
reasonable hours upon prior reasonable notice for the
purpose of (i) inspecting the same; (ii) making
repairs required by the terms of this Lease to be made
by Tenant and which Tenant neglects or refuses to
make; (iii) exhibiting the Premises to prospective
purchasers and mortgages; (iv) during the 12 months
preceding the expiration of this Lease, exhibiting the
Premises to brokers and prospective tenants; and (v)
for the purpose of making any additions or alterations
to the Building or to any surrounding building
provided, in each and every case, Landlord shall use
its best efforts not to unreasonable interfere with
the conduct of Tenant's business at the Premises.
(b) During the nine (9) months preceding
the end of the term, Landlord may post and maintain,
without hindrance or molestation, signs or notices
indicating that the Premises are for sale and/or for
rent; however, no such sign shall be affixed to a door
or window of the Premises or exceed two (2) feet by
three (3) feet.
BANKRUPTCY
19. (a) If, at any time prior to the
commencement of the term of this Lease, or if ay any
time during the term 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 thirty (30) days thereof Tenant fails to secure
a discharge thereof or if Tenant makes an assignment
for the benefit of creditors or petition for or enters
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, in which
event neither Tenant nor any person claiming through
or under Tenant by virtue of any statute or of any
order of any court shall be entitled to possession or
to remain in possession of the premises but shall
forthwith quit and surrender the Premises, and
Landlord, in addition to any other rights may retain
any rent, security, deposit or monies received by it
from Tenant or others in behalf of Tenant as partial
liquidated damages. Notwithstanding the foregoing,
Landlord agrees not to exercise said right of
cancellation a long as Rent payments are timely made.
(b) In the event of the termination of
this Lease pursuant to paragraph (a) of this Article
19, 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 un-expired portion of
the term an the then fair and reasonable rental value
of the 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 an reasonable rental
value of the Premises for the period for which such
installment was payable shall be discounted to the
date of termination at the rate of 4% per annum. If
the Premises, or any part thereof, be relet by
Landlord for the un-expired term of said Lease, the
amount of rent reserved upon such reletting shall
prima facie be the fair and reasonable rental value
for the part or the whole of the premises so relet
during the term of the reletting. Nothing herein
contained shall limit or prejudice the right of
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, an governing the proceeding
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
20. (a) If Tenant shall fail to pay
any installment of 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 Tenant
shall dissolve or liquidate or commence to dissolve or
liquidate, or if the Premises become vacant or
deserted, 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
twenty(20) day period, and if Tenant shall not have
diligently commenced curing such default within such
twenty (20) day period, and shall not thereafter with
reasonable diligence and in good faith proceed to
remedy or cure such default, then, in any one or more
of such events, Landlord my serve a written three (3)
day notice of cancellation of this Lease upon Tenant,
and upon the expiration of said three (3) day period
were the day hereo definitely fixed for the end and
expiration of this Lease, and the term thereof, and
Tenant shall then quit and surrender the Premises to
Landlord but Tenant shall remain liable as hereinafter
provided. If Tenant shall default (i) in the timely
payment of any item of Rent, and such default shall
continue or be repeated for two consecutive months or
for a total of four months in any period of twelve
months, or (ii) in the performance of any particular
term, condition or covenant of this Lease more than
six times in any period of six months, then,
notwithstanding that such defaults shall have each
been cured within the period after notice, if any, as
provided in this Lease, any further similar default
shall be deemed to be deliberate and Landlord
thereafter may serve a written ten (10) day notice of
termination of this Lease to tenant without affording
to Tenant an opportunity to cure such further default.
(b) If (i) the notice provided
for in subparagraph (a) above shall have been given,
and the term shall expire as aforesaid; or (ii) if any
execution or attachment shall be issued against Tenant
or any of Tenant's property whereupon the Premises
shall be taken or occupied or attempted to be taken or
occupied by someone other than Tenant, or (iii) 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 of such events Landlord may without notice,
re-enter the Premises either by force or otherwise,
and dispossess Tenant by summary proceedings or
otherwise; and the legal representative of Tenant or
other occupant of the 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
21. 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,
disposses and/or expiration, together with such
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 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 otherwise have constituted the
balance of the term of this Lease. The failure or
refusal of Landlord to reflect the Premises or any
part or parts thereof shall not be released 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 ▇▇▇▇,
notice or certificate of any public official entitled
to give such ▇▇▇▇, notice or certificate to the effect
that such charge appears of record on the books in his
office and has not been paid.
ATTORNEY'S FEES
22. If Tenant shall at any time be in
default hereunder, and if Landlord shall institute an
action or summary proceeding against Tenant based upon
such default and Landlord shall be successful, then
Tenant shall reimburse Landlord for the reasonable
expenses of attorney's fees and disbursements incurred
by Landlord. The amount of such expenses shall be
deemed to be "additional rent" hereunder and shall be
due from Tenant to Landlord on the first day of the
month following the incurring of such expenses. This
provision shall be reciprocal so that if Tenant shall
be successful in an action against Landlord, then
Landlord shall reimburse Tenant for such reasonable
expenses and disbursements.
WAIVER OF REDEMPTION, COUNTERCLAIM, TRIAL BY JURY
23. Tenant hereby expressly (i) 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 the
Premises, by reason of the violation by Tenant or any
of the covenants and conditions of this Lease or
otherwise; (ii) waives all rights to stay summary
proceedings; and (iii) agrees that it shall not
interpose any counterclaim in any summary proceeding
or any action based on non-payment of Rent or any
other payments or charges required to be made by
Tenant to Landlord. Landlord and Tenant hereby waive
trial by jury in any action, proceeding or
counterclaim brought by either of them against the
other with respect to any matters arising out of or
connected with this Lease, the relationship of
Landlord and Tenant, Tenant's use or occupancy of the
Premises, and/or any claim of injury or damage and any
emergency statutory or any other statutory remedy.
NO WAIVER
24. 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
Premises, and no agreement to accept such surrender
shall be valid unless in writing signed by Landlord.
No employee of either party or of Landlord's agents
hall have any power to accept the keys of the Premises
prior to the termination of the Lease. The delivery
of 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 any
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 either party unless such
waiver be in writing signed by such party. The words
"re-enter" and "re-entry" as used herein are not
restricted to their technical legal meaning.
END OF TERM
25. (A) On the last day of the term
hereof or on the earlier termination thereof, Tenant
shall peaceably and quietly, leave, surrender and
deliver the premises up to Landlord, broom clean,
together with any and all alterations, changes,
additions and improvements which may have been made
upon the Premises (except movable furniture or movable
trade fixtures installed 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, and Tenant shall
remove all of its personal property from the Premises
and any 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 therefore. Tenant's obligations under this
Article 25 shall survive the expiration or other
termination of this Lease.
(B) If Tenant shall hold over after the end
of the term, such holding over shall be unlawful and
in no manner constitute a renewal or an extension of
the lease and no notice of any kind shall be required
prior to any commencement of summary proceeding and
Tenant hereby waives any such right. However, during
such hold over time Tenant shall have all of the
obligations of this lease, including payment of rent
at a monthly rate equal to double the amount due
during the first month of the last year of occupancy
before the end of the expired term, plus any
escalations or additional rent provided for in this
lease.
BROKER
26. Tenant represents that this Lease was
brought about by no one as broker and all negotiations
with respect to this Lease were conducted exclusively
without any broker. Tenant agrees that if any claim
is made for commissions by any 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.
QUIET ENJOYMENT
27. 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.
NONLIABILITY OF LANDLORD
28. (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 person or property 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, (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) 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 is
an individual (which term as used herein includes
aggregates of individuals such as joint ventures,
general or limited partnerships or associates) such
individual 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 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 arising thereafter and it shall be
deemed and construed without further agreement between
the parties or between the parties and the purchaser
of the Premises, that such purchaser has assumed and
agreed to carry out any and all covenants and
obligations of Landlord hereunder.
UTILITY EASEMENT
32. 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
33. 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.
BINDING EFFECT OF LEASE
34. The covenants, agreements and
obligations contained in this Lease shall, except as
herein otherwise provided, extend to, bind and inure
to the benefit of the parties hereto and their
respective personal representatives, heirs, successors
and permitted assigns. Each covenant, agreement,
obligation or other provision herein contained shall
be deemed and construed as a separate and independent
covenant of the party bound by, undertaking or making
the same, not dependent on any other provision of this
Lease unless otherwise expressly provided.
UNAVOIDABLE DELAYS
35. Whenever Landlord shall be required
by the terms of this Lease or otherwise to make any
improvements or repairs, to furnish any service, to
perform any construction or reconstruction or to
fulfill any other obligation hereunder, and Landlord
shall be delayed in, or prevented from, so doing,
Landlord shall not be deemed to be in default and this
Lease and the obligation of Tenant to pay Rent
hereunder and to perform all of the other covenants
and agreements hereunder on the part of Tenant to be
performed shall not be affected, impaired, or excused,
and any time limit herein fixed for Landlord's
performance thereof shall be extended if and so long
as Landlord's non-performance, delay or default shall
be caused by reason of strike or labor troubles,
accidents, any rule, order or regulation of any
department, or subdivision thereof of any governmental
agency, governmental pre-emption in connection with
any national emergency or war, the conditions of
supply and demand which have been or are affected by
war or other emergency or any other cause beyond
Landlord's reasonable control. Similarly, if Tenant
is delayed in, or is prevented from, performing any
obligation hereunder other than payment of rent (or
other sums) by reason of force majeure, the time limit
for Tenant shall likewise be extended.
NO ABATEMENT
36. As used in this Lease, the term
"Tenant's pro rata share" shall mean 60.54% of the
charge or item in question and the term "Tenant's pro
rata share of parking spaces" shall be deemed to mean
fifty-five (55) spaces. In the event Landlord shall
increase the size of the Building or in the event
Tenant shall lease additional space in the Building,
Tenant's pro rata share shall be adjusted to reflect
the new ratio which the size of the Premises bears to
the size of the Building. In the event Landlord and
Tenant are unable to enter into an agreement in
writing setting forth Tenant's new pro rata share
within thirty (30) days after submittal of such an
agreement by Landlord to Tenant or Tenant to Landlord,
the dispute shall be resolved by arbitration in
accordance with the provisions of paragraph 16(g).
SEWER
37. Tenant shall only permit sanitary
discharge into the existing sewer. Tenant shall
comply with all requirements of the County of Suffolk,
Department of Public Works, as it relates to use of
the sewer, including the payment of any excess volume
charges as determined by the County of Suffolk.
RENEWAL OPTIONS
38. The Tenant shall have the right to be
exercised as hereinafter provided, to extend the term
of this Lease for one period of five (5) years upon
the following terms and conditions:
(A) That at the time of the exercise of
such right the Tenant shall not be in default in the
performance of any of the terms, covenants or
conditions herein contained with respect to a matter
as to which notice of default has been given hereunder
and which has not been remedied within the time
limited in this Lease.
(B) That said extension shall be upon the
same terms, covenants and conditions as in this lease
provided, except that (a) there shall be no further
privilege or extension for the term of this Lease
beyond the one period referred to above; (b)
During the first year of said extension period the
basic annual rent shall be $201,750.00 payable
$16,812.50 in equal monthly installments.
During the second year of said extension period the
basic annual rental shall be $211,749.96, payable
$17,645.83 in equal monthly installments.
During the third year of said extension period the
basic annual rental shall be $222,500.00, payable
$18,541.67 in equal monthly installments.
During the fourth year of said extension period the
basic annual rental shall be $233,750.04, payable
$19,479.17 in equal monthly installments.
During the fifth year of said extension period the
basic annual rental shall be $245,750.04, payable
$20,479.17 in equal monthly installments.
(C) Notwithstanding anything in this
paragraph "38" contained to the contrary, the Tenant
shall not be entitled to said extension if at the time
of the commencement of the extended period of the
Tenant shall be I n default under any of the terms,
covenants or conditions of this Lease with respect to
a matter as to which notice of default has been given
hereunder and which has not been remedied within the
time limited in this Lease, or if this Lease shall
have terminated prior to the commencement of said period.
(D) The Tenant shall exercise its right
to said extension of the term of this Lease by
notifying the Landlord of the Tenant's election to
exercise such right at least one (1) year prior to the
expiration of the term of this Lease. Upon the giving
of any such notice, this Lease shall be deemed
extended for the specified period, subject to the
provisions of this paragraph "38" without execution of
any further instrument.
(E) This option is personal to the Tenant
named herein only. In the event of an assignment of
the lease to the Premises by the Tenant named herein,
this option shall be null and void and have no force
and effect.
MORTGAGEE'S SECURITY
39. Tenant hereby agrees not to look to
the Mortgagee as Mortgagee, Mortgagee in possession or
successor in title to the property, for accountability
for any security deposit required by the Landlord
hereunder, unless said sums have actually been
received by such Mortgagee as security for the
Tenant's performance of this lease.
GUARD SERVICE
40. The Landlord at its option, may
furnish a Security Guard device for the Building and
other structures located in the complex known as
Airport International Plaza, in which event the Tenant
will pay to Landlord its proportionate share of actual
cost amount will be payable to the Landlord as
additional rent with the Tenant to Landlord hereunder.
Tenant's proportionate share of such cost shall be
that fraction of which the numerator shall be 25,000
and the denominator shall be the total number of
rentable square feet of space in all the premises
covered by such Security Guard Service. However,
Tenant's proportionate share of such cost shall not
exceed $1,500.00 in any calendar year, i.e. $.06 per
rentable square foot of demised premises which is
25,000 square feet.
IN WITNESS WHEREOF, the parties have executed
this agreement as of the day and year first above
written.
AIP ASSOCIATES
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
_____________________
Partner
SCIENTIFIC INDUSTRIES INC.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________
STATE OF NEW YORK )
) ss.:
COUNTY OF SUFFOLK )
On this 2nd day of November, 1989, before me
personally came ▇▇▇▇▇ ▇▇▇▇▇▇▇, to me known, who
thereupon made solemn oath and acknowledged before me
that he is a member of AIP ASSOCIATES, the partnership
in whose behalf he acts and whose name he executed the
foregoing instrument.
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_________________
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF )
On this day of , 1989, before me
personally came ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ to me known, who being
by me duly sworn, did depose and say that he resides
at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ that he is
Vice President of SCIENTIFIC INDUSTRIES INC., 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 thereto by like
order.
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
______________________
Notary Public