THIS LEASE made the 27th day of August, 1997, between GYRODYNE COMPANY OF
AMERICA, INC. hereinafter referred to as LANDLORD, and PATRIOT COMMUNICATIONS
TECHNOLOGY, INC. hereinafter jointly, severally and collectively referred to as
TENANT.
WITNESSETH, that the Landlord hereby leases to the Tenant, and the Tenant
hereby hires and takes from the Landlord AN AREA DEEMED TO BE APPROXIMATELY
2,805 SQUARE FEET OF SPACE in the building known as ▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
102 AND 108 to be used and occupied by the Tenant AS THE ADMINISTRATION
HEADQUARTERS FOR CONSULTING SERVICES UTILIZING COMPUTER HARDWARE/SOFTWARE
SYSTEMS and for no other purpose, for a term to commence on SEPTEMBER 1, 1997,
and to end on AUGUST 31, 1998, unless sooner terminated as hereinafter provided,
at the ANNUAL RENT OF THIRTY THOUSAND SIX HUNDRED DOLLARS ($30,600.00) WHICH
SHALL BE SUBJECT TO ADJUSTMENT PURSUANT TO THE COVENANTS HEREIN AND NOT
RESTRICTED TO ADDENDUM SECTION V, PARAGRAPHS 4 (a), (b), (c), (d), (e) AND (f)
all payable in equal $2,550.00 monthly installments in advance on the first day
of each and every calendar month during said term, except the first installment,
which shall be paid upon the execution hereof.
THE TENANT JOINTLY AND SEVERALLY COVENANTS:
FIRST - That the Tenant will pay the rent as above provided.
SECOND - That, throughout said term the Tenant will take good care of the
demised premises, fixtures and appurtenances, and all alterations, additions and
improvements to either; make all repairs in and about the same necessary to
preserve them in good order and condition, which repairs shall be, in quality
and class, equal to the original work; promptly pay the expense of such repairs;
suffer no waste or injury; give prompt notice to the Landlord of any fire that
may occur; execute and comply with all laws, rules, orders, ordinances and
regulations at any time issued or in force (except those requiring structural
alterations), application to the demised premises or to the Tenant's occupation
thereof, of the Federal, State and Local Governments, and of each and every
department, bureau and official thereof, and of the New York Board of Fire
Underwriters; permit at all times during the usual business hours, the Landlord
and representatives of the Landlord to enter the demised premises for the
purpose of inspection, and to exhibit them for purposes of sale or rental;
suffer the Landlord to make repairs and improvements to all parts of the
building and to comply with all orders and requirements of governmental
authority applicable to said building or to any occupation thereof; suffer
Landlord to erect, use, maintain, repair and replace pipes and conduits in the
demised premises and to the floors above and below; forever indemnify and save
harmless the Landlord for and against any and all liability, penalties, damages,
expenses and judgments arising from injury during said term to person or
property of any nature, occasioned wholly or in part by any act or acts,
omission or omissions of the Tenant, or of the employees, guests, agents,
assigns or undertenants of the Tenant and also for any matter or thing growing
out of the occupation of the demised premises or of the streets, sidewalks or
vaults adjacent thereto; permit, during the six months next prior to the
expiration of the term the usual notice "To Let" to be placed and to remain
unmolested in a conspicuous place upon the exterior of the demised premises;
repair, at or before the end of the term, all injury done by the installation or
removal of furniture and property; and at the end of the term, to quit and
surrender the demised premises with all alterations, additions and improvements
in good order and condition.
Patriot Communications Technology, Inc. Lease Page 1 of 22
THIRD - That the Tenant will not disfigure or deface any part of the
building, or suffer the same to be done, except so far as may be necessary to
affix such trade fixtures as are herein consented to by the Landlord; the Tenant
will not obstruct, or permit the obstruction of the street or the sidewalk
adjacent thereto; will not do anything, or suffer anything to be done upon the
demised premises which will increase the rate of fire insurance upon the
building or any of its contents, or be liable to cause structural injury to said
building; will not permit the accumulation of waste or refuse matter, and will
not, without the written consent of the Landlord first obtained in each case,
either sell, assign, mortgage or transfer this lease, underlet the demised
premises or any part thereof, permit the same or any part thereof to be occupied
by anybody other than the Tenant and the Tenant's employees, make any
alterations in the demised premises, use the demised premises or any part
thereof for any purpose other than the one first above stipulated, or for any
purpose deemed extra hazardous on account of fire risk, nor the violation of any
law or ordinance. That the Tenant will not obstruct or permit the obstruction of
the light, halls, stairway or entrances to the building, and will not erect or
inscribe any sign, signals or advertisements unless and until the style and
location thereof have been approved by the Landlord; and if any be erected or
inscribed without such approval, the Landlord may remove the same. No water
cooler, air conditioning unit or system or other apparatus shall be installed or
used without the prior written consent of Landlord.
IT IS MUTUALLY COVENANTED AND AGREED THAT
FOURTH - If the demised premises shall be partially damaged by fire or
other cause without the fault or neglect of Tenant, Tenant's servants,
employees, agents, visitors or licensees, the damages shall be repaired by and
at the expense of Landlord and the rent until such repairs shall be made shall
be apportioned according to the part of the demised premises which is usable by
Tenant. But if such partial damage is due to the fault or neglect of Tenant,
Tenant's servants, employees, agents, visitors or licensees, without prejudice
to any other rights and remedies of Landlord and without prejudice to the rights
of subrogation of Landlord's insurer the damages shall be repaired by Landlord
but there shall be no apportionment or abatement of rent. No penalty shall
accrue for reasonable delay which may arise by reason of adjustment of insurance
on the part of Landlord and/or Tenant, and for reasonable delay on account of
"labor troubles", or any other cause beyond Landlord's control. If the demised
premises are totally damaged or are rendered wholly untenantable by fire or
other cause, and if Landlord shall decide not to restore or not to rebuild the
same, or if the building shall be so damaged that Landlord shall decide to
demolish it or to rebuild it, then or in any of such events Landlord may, within
ninety (90) days after such fire or other cause, give Tenant a notice in writing
of such decision, which notice shall be given as in Paragraph Twelve hereof
provided, and thereupon the term of this lease shall expire by lapse of time
upon the third day after such notice is given, and Tenant shall vacate the
demised premises and surrender the same to landlord. If Tenant shall not be in
default under this lease, then, upon the termination of this lease under the
conditions provided for in the sentence immediately preceding, Tenant's
liability for rent shall cease as of the day following the casualty. Tenant
hereby expressly waives the provisions of Section 227 of the Real Property law
and agrees that the foregoing provisions of this Article shall govern and
control in lieu thereof. If the damage or destruction be due to the fault or
neglect of Tenant the debris shall be removed by, and at the expense of, Tenant.
FIFTH - If the whole or any part of the premises hereby demised shall be
taken or condemned by any competent authority for any public use or purpose then
the term hereby granted shall cease from the time when possession of the part so
taken shall be required for such public purpose and without apportionment of
award, the Tenant hereby assigning to the Landlord all right and claim to any
such award, the current rent, however, in such case to be apportioned.
Patriot Communications Technology, Inc. Lease Page 2 of 22
SIXTH - If, before the commencement of the term, the Tenant be adjudicated
a bankrupt, or make a "general assignment," or take the benefit of any insolvent
act, or if a Receiver or Trustee be appointed for the Tenant's property, or if
this lease or the estate of the Tenant hereunder be transferred or pass to or
devolve upon any other person or corporation, or if the Tenant shall default in
the performance of any agreement by the Tenant contained in any other lease to
the Tenant by the Landlord or by any corporation of which an officer of the
Landlord is a Director, this lease shall thereby, at the option of the Landlord,
be terminated and in that case, neither the Tenant nor anybody claiming under
the Tenant shall be entitled to go into possession of the demised premises. If
after the commencement of the term, any of the events mentioned above in this
subdivision shall occur, or if Tenant shall make default in fulfilling any of
the covenants of this lease, other than the covenants for the payment of rent or
"additional rent" or if the demised premises become vacant or deserted, the
Landlord may give to the Tenant ten days' notice of intention to end the term of
this lease, and thereupon at the expiration of said ten days' (if said condition
which was the basis of said notice shall continue to exist) the term under this
lease shall expire as fully and completely as if that day were the date herein
definitely fixed for the expiration of the term and the Tenant will then quit
and surrender the demised premises to the Landlord, but the Tenant shall remain
liable as hereinafter provided.
If the Tenant shall make default in the payment of the rent reserved
hereunder, or any item of "additional rent" herein mentioned, or any part of
either or in making any other payment herein provided for, or if the notice last
above provided for shall have been given and if the condition which was the
basis of said notice shall exist at the expiration of said ten days period, the
Landlord may immediately, or at any time thereafter, re-enter the demised
premises and remove all persons and all or any property therefrom either by
summary dispossess proceedings, or by any suitable action or proceeding at law,
or by force or otherwise without being liable to indictment, prosecution or
damages therefor, and re-possess and enjoy said premises together with all
additions, alterations and improvements. In any such case or in the event that
this lease be "terminated" before the commencement of the term, as above
provided, the Landlord may either re-let the demised premises or any part or
parts thereof for the Landlord's own account, or may, at the Landlord's option,
re-let the demised premises, or any part or parts thereof as the agent of the
Tenant, and receive the rents therefor, applying the same first to the payment
of such expenses as the Landlord may have incurred and then to the fulfillment
of the covenants of the Tenant herein, and the balance, if any at the expiration
of the term first above provided for, shall be paid to the Tenant. Landlord may
rent the premises for a term extending beyond the term hereby granted without
releasing Tenant from any liability. In the event that the term of this lease
shall expire as above in this subdivision "Sixth" provided, or terminate by
summary proceedings or otherwise, and if the Landlord shall not re-let the
damaged premises for the Landlord's own account, then, whether or not the
premises be re-let, the Tenant shall remain liable for and Tenant hereby agrees
to pay to the Landlord, until the time when this lease would have expired but
for such termination of expiration, the equivalent of the amount of all of the
rent and "additional rent" reserved herein, less the avails of reletting, if
any, and the same shall be due and payable by the Tenant to the Landlord on the
several rent days above specified, that is upon each of such rent days the
Tenant shall pay to the Landlord the amount of deficiency then existing. The
Tenant hereby expressly waives any and all right of redemption in case the
Tenant shall be dispossessed by judgment or warrant of any court or judge, and
the Tenant waives and will waive all right to trial by jury in any summary
proceedings hereafter instituted by the Landlord against the Tenant in respect
to the demised premises. The words "re-enter" and "re-entry" as used in this
lease are not restricted to their technical legal meaning.
Patriot Communications Technology, Inc. Lease Page 3 of 22
In the event of a breach or threatened breach by the Tenant of any of
the covenants or provisions hereof, the 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.
SEVENTH - If the Tenant shall make default in the performance of any
covenant herein contained, the Landlord may immediately, or at any time
thereafter, without notice, perform the same for the account of the Tenant. If a
notice of mechanic's lien be filed against the demised premises or against
premises of which the demised premises are part, for, or purporting to be for,
labor or material alleged to have been furnished, or to be furnished to or for
the Tenant at the demised premises and if the Tenant shall fail to take such
action as shall cause such lien to be discharged within fifteen days after the
filing of such notice, the Landlord may pay the amount of such lien or discharge
the same by deposit or by bonding proceedings, and in the event of such deposit
or bonding proceedings, the Landlord may require the lienor to prosecure an
appropriate action to enforce the lienor's claim. In such case, the landlord may
pay any judgment recovered on such claim. Any amount paid or expense incurred by
the Landlord as in this subdivision of this lease provided, and any amount as to
which the Tenant shall at any time be in default for or in respect to the use of
water, electric current or sprinkler supervisory service, and any expense
incurred or sum of money paid by the Landlord by reason of the failure of the
Tenant to comply with any provision hereof, or in defending any such action,
shall be deemed to be "additional Rent" for the demised premises, and shall be
due and payable by the Tenant to the Landlord on the first day of the next
following month, or, at the option of the Landlord, on the first day of any
succeeding month. The receipt by the Landlord of any installment of the regular
stipulated rent hereunder or any of said "additional rent" shall not be a waiver
of any other "additional rent" then due.
EIGHTH - The failure of the Landlord to insist, in any one or more
instances upon a strict performance of any of the covenants of this lease, or to
exercise any option herein contained, shall not be construed as a waiver or a
relinquishment for the future of such covenant or option, but the sale shall
continue and remain in full force and effect. The receipt by the Landlord of
rent, with knowledge of the breach of any covenant hereof, shall not be deemed a
waiver of such breach and no waiver by the Landlord of any provision hereof
shall be deemed to have been made unless expressed in writing and signed by the
Landlord. Even though the Landlord shall consent to an assignment hereof no
further assignment shall be made without express consent in writing by the
Landlord.
NINTH - If this lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than the Tenant the Landlord
may collect rent from the assignee, under-tenant or occupant, and apply the net
amount collected to the rent herein reserved, and no such collection shall be
deemed a waiver of the covenant herein against assignment and underletting, or
the acceptance of the assignee, under-tenant or occupant as tenant, or a release
of the Tenant from the further performance by the Tenant of the covenants herein
contained on the part of the Tenant.
TENTH - This lease shall be subject and subordinate at all times, to the
lien of the mortgages now on the demised premises, and to all advances made or
hereafter to be made upon the security thereof, and subject and subordinate to
the lien of any mortgage or mortgages which at any time may be made a lien upon
the premises. The tenant will 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. The Tenant
hereby appoints the Landlord the attorney-in-fact of the Tenant, irrevocable, to
execute and deliver any such instrument or instruments for the Tenant.
Patriot Communications Technology, Inc. Lease Page 4 of 22
ELEVENTH - All improvements made by the Tenant to or upon the demised
premises, except said trade fixtures, shall when made, at once be deemed to be
attached to the freehold, and become the property of the Landlord, and at the
end or other expiration of the term, shall be surrendered to the Landlord in as
good order and condition as they were when installed, reasonable wear and
damages by the elements excepted.
TWELFTH VOID
THIRTEENTH - The Landlord shall not be liable for any failure of water
supply or electrical current, sprinkler damage, or failure of spinkler service,
nor for injury or damage to person or property caused by the elements or by
other tenants or persons in said building or resulting from steam, gas,
electricity, water, rain or snow, which may leak or flow from any part of said
buildings, or from the pipes, appliances or plumbing works of the same, or from
the street or sub-surface, or from any other place, nor for interference with
light or other incorporeal hereditaments by anybody other than the Landlord, or
caused by operations by or for a governmental authority in construction of any
public or quasi-public work, neither shall the Landlord be liable for any latent
defect in the building.
FOURTEENTH - No diminution or abatement of rent, or other compensation
shall be claimed or allowed for inconvenience or discomfort arising from the
making of repairs or improvements to the building or to its appliances, nor for
any space taken to comply with any law, ordinance or order of a governmental
authority. In respect to the various "services," if any, herein expressly or
impliedly agreed to be furnished by the Landlord to the Tenant, it is agreed
that there shall be no diminution or abatement of the rent, or any other
compensation, for interruption or curtailment of such " service" which such
interruption or curtailment shall be due to the accident, alterations or repairs
desirable or necessary to be made or to inability or difficulty in securing
supplies or labor for the maintanance of such 'service" or to some other cause,
not gross negligence on the part of the Landlord. No such interruption or
curtailment of any such "service" shall be deemed a constructive eviction. The
Landlord shall not be required to furnish, and the Tenant shall not be entitled
to receive, any of such "services" during any period wherein the Tenant shall be
in default in respect to the payment of rent. Neither shall there be any
abatement or diminution of rent because of making of repairs, improvements or
decorations to the demised premises after the date above fixed for the
commencement of the term, it being understood that rent shall, in any event,
commence to run at such date so above fixed.
FIFTEENTH - The Landlord may prescribe and regulate the placing of safes,
machinery, quantities of merchandise and other things. The Landlord may also
prescribe and regulate which elevator and entrances shall be used by the
Tenant's employees, and for the Tenant's shipping. The Landlord may make such
other and further rules and regulations as, in the Landlord's judgment, may from
time to time be needful for the safety, care or cleanliness of the building, and
for the preservation of good order therein. The Tenant and the employees and
agents of the Tenant will observe and conform to all such rules and regulations.
SIXTEENTH VOID
SEVENTEENTH VOID
Patriot Communications Technology, Inc. Lease Page 5 of 22
EIGHTEENTH - That during the seven months prior to the expiration of the
term hereby granted, applicants shall be admitted at all reasonable hours of the
day to view the premises until rented; and the Landlord and the Landlord's
agents shall be permitted at any time during the term to visit and examine them
at any reasonable hour of the day, and workmen may enter at any time, when
authorized by the Landlord or the Landlord's agents, to make or facilitate
repairs in any part of the building; and if the said Tenant shall not be
personally present to open and permit an entry into said premises, at any time,
when for any reason an entry therein shall be necessary or permissible
thereunder, the Landlord or the Landlord's agents may forcibly enter the same
without rendering the Landlord or such agents liable to any claim or cause of
action for damages by reason thereof (if during such entry the Landlord shall
accord reasonable care to the Tenant's property) and without in any manner
affecting the obligations and covenants of this lease; it is, however, expressly
understood that the right and authority hereby reserved, does not impose, nor
does the Landlord assume, by reason thereof, any responsibility or liability
whatsoever for the care or supervision of said premises, or any of the pipes,
fixtures, appliances or appurtenances therein contained or therewith in any
manner connected. ***
NINETEENTH - The Landlord has made no representations or promises in
respect to said building or to the demised premises except those contained
herein, and those, if any, contained in some written communication to the
Tenant, signed by the Landlord. This instrument may not be changed, modified,
discharged, or terminated orally.
TWENTIETH - If the Tenant shall at any time be in default hereunder, and if
the Landlord shall institute an action or summary proceeding against the Tenant
based upon such default, then the Tenant will reimburse the Landlord for the
expense of attorneys' fees and disbursements thereby incurred by the Landlord,
so far as the same are reasonable in amount. Also so long as the Tenant shall be
a tenant hereunder the amount of such expenses shall be deemed to be "additional
rent" hereunder and shall be due from the Tenant to the Landlord on the first
day of the month following the incurring of such respective expenses.
TWENTY-FIRST - Landlord shall not be liable for failure to give possession
of the premises upon commencement date by reason of the fact that premises are
not ready for occupancy, or due to a prior Tenant wrongfully holding over or any
other person wrongfully in possession or for any other reason: in such event the
rent shall not commence until possession is given or is available but the term
herein shall not be extended.
THE TENANT FURTHER COVENANTS:
TWENTY-SECOND - If the demised premises or any part thereof consist of a
store, or of a first floor, or of any part thereof, the Tenant will keep the
sidewalk and curb in front thereof clean at all times and free from snow and
ice, and will keep insured in favor of the Landlord, all plate glass therein and
furnish the Landlord with policies of insurance covering the same.
TWENTY-THIRD - If by reason of the conduct upon the demised premises of a
business not herein permitted, or if by reason of the improper or careless
conduct of any business upon or use of the demised premises, the fire insurance
rate shall at any time be higher than it otherwise would be, then the Tenant
will reimburse the Landlord, as additional rent hereunder, for that part of all
fire insurance premiums hereafter paid out by the Landlord which shall have been
charged 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 demised
premises, and will make such reimbursement upon the first day of the month
-------------------
*** THIS PROVISION ALLUDES TO THE MINIMUM ACCESS GRANTED TO LANDLORD AND IS
MEANT TO BE EXPLAINED BY ANY OTHER PVOSISION SET FORTH HEREIN IN BOTH PRINTED
FORM AND THE RIDER ATTACHED HERETO.
Patriot Communications Technology, Inc. Lease Page 6 of 22
following such outlay by the Landlord: but this covenant shall not apply to a
premium for any period beyond the expiration date of this lease, first above
specified. If any action or proceeding wherein the Landlord and Tenant are
parties, a schedule or "make up" of rate for the building on the demised
premises, purporting to have been issued by New York Fire Insurance Exchange, or
other body making fire insurance rates for the demised premises, shall be prima
facie evidence of the facts therein stated and of the several items and charges
included in the fire insurance rate then applicable to the demised premises.
TWENTY-FOURTH - If a separate water meter be installed for the demised
premises, or any part thereof, the Tenant will keep the same in repair and pay
the charges made by the municipality or water supply company for or in respect
to the consumption of water, as and when bills therefor are rendered. If the
demised premises, or any part thereof, be supplied with water through a meter
which supplies other premises, the Tenant will pay to the Landlord, as and when
bills are rendered therefor, the Tenant's proportionate part of all charges
which the municipality or water supply company shall make for all water consumed
through said meter, as indicated by said meter. Such proportionate part shall be
fixed by apportioning the respective charge according to floor area against all
of the rentable floor area in the building (exclusive of the basement) which
shall have been occupied during the period of the respective charges, taking
into account the period that each part of such area was occupied. Tenant agrees
to pay as additional rent the Tenant's proportionate part, determined as
aforesaid, of the sewer rent or charge imposed or assessed upon the building of
which the premises area a part.
TWENTY-FIFTH - That the Tenant will purchase from the Landlord, if the
Landlord shall so desire, all electric current that the Tenant requires at the
demised premises, and will pay the Landlord for the same, as the amount of
consumption shall be indicated by the meter furnished therefor. The price for
said current shall be the same as that charged for consumption similar to that
of the Tenant by the company supplying electricity in the same community.
Payments shall be due as and when bills shall be rendered. The tenant shall
comply with like rules, regulations and contract provisions as those prescribed
by said company for a consumption similar to that of the Tenant.
TWENTY-SIXTH.- If there now is or shall be installed in said building a
"sprinkler system" the Tenant agrees to keep the appliances thereto in the
demised premises in repair and good working condition, and if the New York Board
of Fire Underwriters or the New York Fire Insurance Exchange or any bureau,
department or official of the State of local government requires or recommends
that any changes, modification, alterations or additional sprinkler heads or
other equipment be made or supplied by reason of the Tenant's business, or the
location of partitions, trade fixtures, or other contents of the demised
premises, or if such changes, modification, alterations, additional sprinkler
heads or other equipment in the demised premises are necessary 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, the Tenant will at the Tenant's own expense, promptly make
and supply such changes, modifications, alterations, additional sprinkler heads
or other equipment. As additional rent hereunder the Tenant will pay to the
Landlord, annually in advance, throughout the term a prorata 5.24% portion
toward the contract price for sprinkler supervisory service.
TWENTY-SEVENTH.- The sum of see paragraph #1 of Addendum Section
V......Dollars is deposited by the Tenant herein with Landlord herein as
security for the faithful performance of all the covenants and conditions of the
lease by the said Tenant. If the Tenant faithfully performs all the covenants
and conditions on his part to be performed, then the sum deposited shall be
returned to said Tenant.
Patriot Communications Technology, Inc. Lease Page 7 of 22
TWENTY-EIGHTH.- This lease is granted and accepted on the especially
understood and agreed condition, that the Tenant will conduct his business in
such a manner, both as regards noise and kindred nuisances, as will in no wise
interfere with, annoy, or disturb any other tenants, in the conduct of their
several businesses, or the landlord in the management of the building; under
penalty of forfeiture of this lease and consequential damages.
TWENTY-NINTH.- The Landlord hereby recognizes no broker as the broker who
negotiated and consummated this lease with the Tenant herein, and agrees that
if, as, and when the Tenant exercises the option, if any, contained herein to
renew this lease, or fails to exercise the option, if any, contained therein to
cancel this lease, the Landlord will pay to said broker a further commission in
accordance with the rules and commission rates of the Real Estate Board in the
community. A sale, transfer, or other disposition of the Landlord's interest in
said lease shall not operate to defeat the Landlord's obligation to pay the said
commission to the said broker. The Tenant herein hereby represents to the
Landlord that the said broker is the sole and only broker who negotiated and
consummated this lease with the Tenant.
THIRTIETH.- VOID
THIRTY-FIRST.- The invalidity or unenforceability of any provision of this
lease shall in no way affect the validity or enforceability of any other
provision hereof.
THIRTY-SECOND.- In order to avoid delay, this lease has been prepared and
submitted to the Tenant for signature with the understanding that it shall not
bind the Landlord unless and until it is executed and delivered by the Landlord.
THIRTY-THIRD.- VOID
THIRTY-FOURTH.- The Landlord shall replace at the expense of the Tenant any
and all broken glass in the skylights, doors and walls in and about the demised
premises. The Landlord may insure and keep insured all plate glass in the
skylights, doors and walls in the demised premises, for and in the name of the
Landlord and bills for the premiums therefor shall be rendered by the Landlord
to the Tenant at such times as the Landlord may elect, and shall be due from and
payable by the Tenant when rendered, and the amount thereof shall be deemed to
be, and shall be paid as, additional rent.
THIRTY-FIFTH.- 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 nowise be affected, impaired or excused
because Landlord is unable 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 repairs, additions, alterations or decorations or is unable to supply
or is delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from doing so doing by reason of governmental preemption in connection
with a National Emergency declared by the President of the United States or in
connection with any rule, order or regulation of any department or subdivision
thereof of any government agency or by reason of the conditions of supply and
demand which have been or are affected by war or other emergency.
THE LANDLORD COVENANTS
Patriot Communications Technology, Inc. Lease Page 8 of 22
FIRST.-That if so long as the Tenant pays the rent and "additional rent"
reserved hereby, and performs and observes the covenants and provisions hereof,
the Tenant shall quietly enjoy the demised premises, subject , however, to the
terms of this lease, and to the mortgages above mentioned, provided however,
that this covenant shall be conditioned upon the retention of title to the
premises by Landlord.
SECOND.-VOID
And it is mutually understood and agreed that the covenants and agreements
contained in the within lease shall be binding upon the parties hereto and upon
their respective successors, heirs, executors and administrators.
IN WITNESS WHEREOF, the Landlord and Tenant have respectively signed and
sealed these presents the day and year first above written.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
GYRODYNE COMPANY OF AMERICA, INC.
Landlord
In presence of:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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PATRIOT COMMUNICATIONS TECHNOLOGY, INC.
TENANT
GUARANTY
In consideration of the letting of the premises within mentioned to the
Tenant within named, and the sum of One Dollar, to the undersigned in hand paid
by the Landlord within named, the undersigned hereby guarantees to the Landlord
and to the heirs, successors and/or assigns of the Landlord, the payment by the
Tenant of the rent, within provided for, and the performance by the Tenant of
all of the provisions of the within lease. Notice of all defaults is waived and
consent is hereby given to all extension of time that any Landlord may grant.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
PATRIOT COMMUNICATIONS TECHNOLOGY, INC.
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇ this 27th day of August, 1997, before me peronally appeared ▇▇▇▇▇
▇▇▇▇▇▇▇ to me known and known to be to the individual described in and who
executed the foregoing instrument, and duly acknowledged to me that he executed
the same.
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇
▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Term Expires 2/22/99
Patriot Communications Technology, Inc. Lease Page 9 of 22
ADDENDUM TO LEASE
Between
GYRODYNE COMPANY OF AMERICA, INC.
(Landlord)
and
PATRIOT COMMUNICATIONS TECHNOLOGY, INC.
(Tenant)
SECTION I - UTILITIES AND SERVICE
1. CUSTODIAL SERVICES - The Landlord will, at its expense, provide custodial
services to the common rest rooms and the common corridors leading to the
demised premises. It is understood that Tenant has a private rest room in
Suite 100 and that custodial services to that unit will be proivded by
Tenant. Tenant shall not permit window cleaning or other exterior
maintenance and/or janitorial services in and for the premises to be
performed, except by such person(s) as shall be approved by Landlord and
except during reasonable hours designated for such purposes by Landlord.
2. PARKING - The Landlord will assign and the Tenant will have the use of TEN
(10) parking spaces in the parking lot assigned to the demised premises.
(Parking Lot #7N). Maintenance of parking areas and roads leading to the
demised premises shall be the sole responsibility of the Landlord.
3. ELECTRICITY - The electric power for the demised premises will be provided
via the Landlord's "house" meter(s) and the Tenant shall be billed, by the
Landlord, on the basis of the kilowatt consumption and demand recorded by
the meter(s) at the prevailing LILCO rate in effect at the time of the
meter reading by the Landlord.
4. LIGHT FIXTURES - The Landlord warrants that the overhead lighting fixtures
including cool white fluorescent tubes shall be in good working condition
at the time the Tenant commences initial occupancy of the demised premises
and for one month thereafter. Subsequently, the Tenant shall be
responsible, at its expense, for the replacement of tubes and/or ballasts.
Tenant shall, at the end of tenancy, return to the Landlord all lighting
fixtures with lamps and ballasts in good operating condition. In the event
Tenant vacates the premises and repairs/replacements are required, Landlord
shall ▇▇▇▇ Tenant for any and all work performed on the lighting fixtures
to restore them to their original condition less normal wear and tear.
5. AIR CONDITIONING MAINTENANCE - Landlord shall provide, in good working
condition, THREE (3), through the wall air conditioning unit(s) (one each
in Suites 100, 102 and 108) for use in the demised premises. Landlord shall
maintain said unit(s) during tenancy at Tenant's sole expense. For the
purposes of maintenance and liability, the air conditioning unit(s) shall
be considered equipment as defined by and subject to Addendum Section II -
Repairs, Access, Forced Entry, and Right of Recovery, Paragraph 2.
MAINTENANCE OF EQUIPMENT AND FIXTURES.
6. HEAT - Landlord, at its expense, shall provide heat during normal working
hours: 8:00AM to 5:00PM Mondays through Fridays, except holidays, in
accordance with Government guidelines.
Patriot Communications Technology, Inc. Lease Page 10 of 22
7. GARBAGE - Tenant will handle and dispose of all rubbish, debris, garbage,
and waste from Tenant's operation in accordance with regulations
established by Landlord and those of all governmental agencies having
jurisdiction, and not permit the accumulation (unless in concealed metal
containers), or burning, of any rubbish or garbage in, on, or about any
part of Flowerfield, and not permit any garbage or rubbish to be collected
or disposed of from the premises, except by Landlord or its designee. All
Tenant's garbage must be put in plastic bags, securely tied at the top, and
placed in "GCA" dumpsters located currently at Building #18 or as located
at Landlord's sole discretion. Cardboard must be separated from garbage and
placed in the special containers designated for cardboard only. All
cardboard boxes and shipping packaging must be "flattened" before being
inserted into the designated receptacles. Landlord reserves the right to
require Tenant to acquire a dumpster(s) for Tenant's use if Landlord deems
Tenant is regularly generating excessive waste materials.
Additionally, Tenant shall not permit debris, waste materials, or garbage
to collect in front of around, alongside, or in back of the demised
premises. Tenant shall at all times keep the apron immediately in front of
the demised premises clean and orderly. In the event the Landlord deems the
"housekeeping" inadequate, then the Landlord shall have the right to clean
up the affected area and charge the Tenant for such cleanup.
Industrial waste, such as metal chips, oils, solvents, chemicals, sheet
metal, wood crates, pallets, etc. may not be placed in the dumpster. The
Tenant, at its expense, must dispose of all industrial waste in conformance
with New York State environmental Conservation Law. Landlord shall have the
right to demand and receive copies of bills of conveyance to a government
certified and/or government registered carting company for environmentally
sensitive and/or hazardous waste materials which were at any time at
Flowerfield as a result of Tenant's operations.
8. SEPTIC SYSTEM - It is mutually agreed and understood that a typical septic
system for one of Landlord's buildings includes a soil line from the
bathrooms to the septic tank, and an interconnect pipe(s) from the septic
tank to either a distribution box or directly to one or more cesspools. It
is agreed that the demised premises includes a set of bathrooms which are
common for more than one Tenant and that any expenses relating to repairs
for stopped-up toilets, backed-up sinks, and/or clogged drains and soil
lines, if directly attributable to the acts of the Tenant, shall be borne
solely by the Tenant. Structural repairs to the soil line, interconnect
pipe(s), distribution box, septic tank, or cesspool shall be the sole
responsibility of the Landlord provided that such repairs were not caused
by the misuse of the facilities by the Tenant.
It is understood that all materials removed from commercial building
cesspools by carters are tested for toxic chemicals by Suffolk County
Department of Health. Tenant shall be required, on demand, to provide
Landlord, within a reasonable period of time, a list of chemicals, if any,
by quantity and composition used in Tenant's operation which are listed
under Section 313 of the Superfund Amendments and Reauthorization Act
(▇▇▇▇).
9. WATER - In the event that a municipal water authority water meter(s)
specific for Building #7 is provided during the leasehold term, it is
agreed that Tenant shall henceforth pay any and all charges for its water
usage. If the water meter is not Tenant specific, a computation predicated
on a ratio of rented square footage to total building square footage will
be utilized. Further, Tenant shall pay, calculated on 164,413 square feet
base, its prorata share for fire hydrant charges assessed by the water
authority.
Patriot Communications Technology, Inc. Lease Page 11 of 22
10. FIRE PROTECTION EQUIPMENT - The Tenant shall be required to supply its own
fire extinguishers of the appropriate size and classification consistent
with the Smithtown Fire Code, ISO and the Fire Insurance Underwriter
Inspection regulations. Furthermore, the Tenant agrees to have said
extinguishers periodically inspected, recharged and/or serviced as
required, and tagged showing compliance to the aforesaid codes and
regulations.
In the event Tenant is requested to provide any of the local Fire
Departments which have jurisdiction with a list of hazardous chemicals,
Tenant shall provide same in an expeditious manner with a copy being given
to the Landlord.
The Landlord reserves the right to inspect the demised premises to assure
Tenant compliance with this requirement and to insist upon strict adherence
to the necessary procedures.
11. HAZARDOUS MATERIALS - Tenant shall not bring, keep or use in or upon the
demised premises of the building of which they form a part, any solvent
having a flash point below 110F, nor shall any liquid which emits volatile
vapors below the temperature of 100 F be brought, kept or used in or upon
the demised premises of the building except: If the process using such
liquids shall be conducted in a room of fire resistant construction, as
defined by the Fire Insurance Rating Organization. (FIRO) If more than one
but not more than two gallons of such liquids are kept on the premises,
they must be stored in safety cans and kept in a cabinet constructed by
Tenant in a manner approved by the FIRO. Reasonable amounts in excess of
ten gallons may be kept if they are stored in a vault constructed by Tenant
in a manner approved by FIRO. Any use or storage of such liquids shall at
all times be in accordance with the requirements of the FIRO, OSHA, NFPA,
and the Fire Department Board of fire Underwriters.
12. DUST COLLECTION EQUIPMENT - In the event Tenant's operation generates
airborne particles, such as sawdust, the Tenant shall be required to
install and maintain a dust collection system acceptable to the Landlord in
order to contain the dispersion of the generated dust. Tenant shall also be
responsible for any cleanup maintenance required of the area immediately
adjacent to the demised premises, which shall include hallways, foyers, and
outside areas. Tenant shall be responsible, on a monthly basis , to clean
and maintain any external doors which have been subjected to the
accumulation of dust.
Airborne particles such as vapor, generated by spraying glue, etc., will
require the installation of proper ventilation, exhaust equipment, and
explosion proof fixtures as required by Building Code Regulations. ALL
EXHAUST SYSTEMS TO THE ATMOSPHERE REQUIRE THE APPROPRIATE FILTERS FOR THE
SPECIFIC TYPE OF MATERIALS/VAPOR BEING VENTED.
13. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT - Tenant hereby represents
that it is familiar with the provisions of the Americans with Disabilities
Act. Tenant further represents that it is exempt from the provisions of the
Americans with Disabilities Act as an entity employing fewer than fifteen
individuals for each working day in each of twenty or more calendar weeks
in the current or preceding calendar year.
Patriot Communications Technology, Inc. Lease Page 12 of 22
13. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT - Tenant hereby represents
that it is familiar with the Americans with Disabilities Act. Tenant
further represents that it will not require Landlord to bear the cost of
alterations to the demised premises which Tenant may require in order to
comply with the Americans with Disabilities Act.
14. ALARM SYSTEM - In the event the demised premises has an existing Landlord
owned alarm system, upon its election to utilize said alarm system, it
shall be the Tenant's sole financial responsibility to maintain the
systems, to discharge all the financial obligations related thereto and
return the system to Landlord in good operating condition.
In the event Tenant desires to utilize an existing alarm system or install
a leased or rented third party owned alarm system, then it is mutually
agreed and understood that Tenant agrees to a minimum of $100.00 exit
charge at the end of tenancy. Landlord has established this minimum charge
predicated on past experience of damage done to doors, window, walls,
painted surfaces, and the required availability of Landlord's personnel
when the third party vendor has to remove said system.
In the event Tenant desires to install a Tenant owned alarm system,
applicable exit charges, if any, would be assessed predicated on any damage
found at the end of tenancy.
15. KEYS - Landlord shall provide Tenant keys to the demised premises. Upon
receipt thereof, it will be the Tenant's responsibility to safeguard these
items. The loss of a key(s) will entail a charge to cover its replacement.
If such loss results in the necessity of replacing the lock, then a charge
will be levied against the Tenant for such replacement cost. The charge for
a lost key is Ten ($10.00) dollars; a door lock is Forty ($40.00) dollars.
Key Number: F-4 Number of Keys: ONE each (1)
Number of Main Gate Keys: TWO (2)
SECTION II - REPAIRS, ACCESS, FORCED ENTRY, AND RIGHT OF RECOVERY
1. STRUCTURAL REPAIRS - Notwithstanding terms and condition contained in the
second Covenant of the preprinted portion of the Lease, the Landlord will
be responsible for all structural repairs to the demises area, and for the
maintenance of the exterior of the building in which the demised premises
are located which repairs were not necessitated or otherwise caused by any
act of the Tenant, its servants, agents and/or employees, invitees,
subtenants and/or licensees.
2. MAINTENANCE OF EQUIPMENT AND FIXTURES - It is mutually agreed and
understood that with respect to all equipment and fixtures as exists in the
demised premises, the Tenant is responsible for maintaining same in safe
working condition. Said equipment and fixtures are deemed to include, but
not be limited to, light fixtures, fire alarms, personnel and overhead
doors, and fire extinguishers. Tenant agrees to hold harmless, defend, and
indemnify Landlord from any and all claims arising from direct, indirect,
or consequential injury or damage to any party, either personal or
property, which injury or damage may have been a result of Tenant's failure
to adequately maintain said equipment and/or fixtures.
Patriot Communications Technology, Inc. Lease Page 13 of 22
3. ACCESS FOR INGRESS AND EGRESS - The sidewalks, ▇▇▇▇▇▇, areas, entry,
vestibules, passages, corridors, halls, elevators and stairways of the
demised premises and common areas shall not be encumbered or obstructed by
Tenant, its agents, clerks, servants or customers or be used by them for
any other purpose than for ingress and egress to and from the demised
premises. The demised premises may not be cluttered by boxes, garbage or
other material. If Landlord directs that any of the foregoing items be
removed from the demised premises, Tenant shall promptly comply with such
direction.
4. REPAIRS AND EMERGENCY ACCESS - Tenant shall permit Landlord and/or its
designee to erect, use, maintain and repair pipes, cables, conduits,
plumbing, vents and wires, in, to and through the premises, as and to the
extent that Landlord may now or hereinafter deem to be necessary or
appropriate for the proper operation and maintenance of the building in
which the premises are located or any other portion of Flowerfield. All
such work shall be done, so far as practicable, in such manner as to avoid
interference with Tenant's use of the premises. Notwithstanding anything
else contained herein to the contrary, in the event of an emergency,
Landlord may enter the premises of the Tenant immediately and Tenant shall
cooperate with the Landlord in providing said immediate access.
5. PRIVACY AND FORCED ENTRY - It is agreed and understood that if Tenant
changes or adds additional locks to any entrance or egress from the demised
premises, then Tenant shall provide Landlord with a key or a combination to
be utilized for access purposes. All locks changed must be returned to the
Landlord for reinstallation, at Tenant's expense, at the end of tenancy. In
the event a situation arises which in the opinion of the Landlord or Public
Safety Officials (Police, Fire Dept., Code Enforcement, etc.) necessitates
entrance to the premises during a period when Tenant is not available to
provide access, and Tenant has not provided said key or combination, then
any expenses resulting from damage to the premises required by a forced
entry shall be borne solely by the Tenant. The addition of locks and/or
security devices shall be deemed to be an alteration as defined under
Section III of this Addendum, and therefore, subject to all the provisions
governing alterations and reversion.
6. NO RENT ABATEMENT - No diminution or abatement of rent, or other
compensation shall be claimed or allowed for inconvenience or discomfort
arising from the making of repairs or improvements to the building or to
its fixtures nor for any space taken to comply with any law, ordinance or
other governmental authority. In respect to the various "services" if any,
herein expressly or impliedly agreed to be furnished by Landlord to Tenant,
it is agreed that there shall be no abatement of the rent or any other
compensation for interruption or curtailment of such "service" when such
interruption or curtailment shall be due to accident, alterations or
repairs desirable or necessary to be made or to inability or difficulty in
securing parts, supplies or labor for the maintenance of such "service" or
to some other cause, not gross negligence on the part of Landlord. No such
interruption or curtailment of any such "service" shall be deemed a
constructive eviction. Landlord shall not be required to furnish and Tenant
shall not be required to receive any such "services" during any period
wherein the Tenant shall be in default in payment of rent. Neither shall
there be diminution of rent because of making of repairs, improvements or
decorations to the demised premises after the date of commencement of the
lease term.
7. MAINTENANCE BY LANDLORD DURING TENANCY AND TENANT'S RIGHT OF RECOVERY -
Paragraph thirteen of the preprinted portion of the Lease is hereby amended
to add the following: "Tenant shall have no right of recovery against
Landlord in the event of loss or damage to the property and/or business of
the Tenant resulting from fire, or other casualty or cessation and/or
Patriot Communications Technology, Inc. Lease Page 14 of 22
interruption of Tenant's business due to repairs and/or interruption of
Tenant's business due to repairs and/or compliance with mandated items
required on the part of the Landlord. Tenant hereby agrees to provide
access to premises for Landlord to comply with its obligations as
aforesaid, the time and duration of said access to be at the sole
discretion of the Landlord who will proceed in as reasonable a manner as
possible under the circumstances. It is hereby agreed that the Landlord's
determination shall be conclusive and binding on all parties hereto."
8. ACCESS AT END OF TENANCY - It is mutually agreed and understood that in
order for Landlord to relet the premises to a new tenant on the first day
of the month immediately following the vacation date stipulation in Section
VI paragraph #1 of this addendum, Landlord shall require and be granted by
Tenant, during normal working hours, unhindered access to the demised
premises during the last week of tenancy for the express purpose of making
repairs, which repairs shall include, but not be restricted to: dry wall
patching, spackling, painting, floor cleaning, equipment servicing, pipe
repairs, and HVAC maintenance.
SECTION III - ALTERATIONS
1. CONSENT BY LANDLORD AND PERMITS - It is hereby covenanted and agreed that
the Tenant shall not make alterations to any building(s) and/or property
Tenant has rented or has been given access to by the Landlord without the
express written consent of the Landlord. In the event Tenant is authorized
to make alterations, then Tenant shall be responsible for all permits and
inspections as may be required by state and local building codes. If as a
cause of Tenant's alterations and the governing ordinances shall require,
Tenant shall secure as necessary, either a current Certificate of Occupancy
or a Certificate of Conformance for the demised premises.
(a) CONTRACTOR'S INSURANCE - Prior to commencement of any work by or
for Tenant, Tenant shall furnish Landlord certificates evidencing the
existence of the following insurance:
(1) Worker's Compensation Insurance covering all persons employed
for such work and with respect to whom death or bodily injury claims
could be asserted against Landlord, Tenant or the demised premises.
(2) General liability insurance naming Landlord its designees,
and Tenant as insureds, with limits of not less than $1,000,000 in the
event of bodily injury to one person and not less than $2,000,000 in
the event of bodily injury to any number of persons in any one
occurrence, and with limits of not less than $100,000 for property
damage. Tenant, at its sole cost and expense, shall cause all such
insurance to be maintained at all times when the work to be performed
for or by Tenant is in progress. All such insurance shall be in a
company authorized to do business in New York, and all policies, or
certificates therefore, issued by the insurer and bearing notations
evidencing the payment of premiums, shall be delivered to Landlord.
Tenant agrees to compensate Landlord for the purpose of reviewing
plans and Tenant shall pay for all reasonable costs incurred resulting
from such review and inspections as Landlord may require.
Patriot Communications Technology, Inc. Lease Page 15 of 22
(b) ELECTRICAL SYSTEM - The Tenant shall not, under any circumstances,
make changes to the existing electrical service servicing the
premises, the internal wiring leading from the distribution box/boxes
to overhead lights, wall outlets, ▇▇▇▇ ducts, etc., without the prior
written authorization of the Landlord. It is agreed that all
electrical work shall be done by a licensed electrician and said work,
at Landlord's sole discretion, may require Tenant to obtain New York
Board of Fire Underwriter approval.
(c) CARPETING - If the Tenant elects to install carpeting to cover any
floor section(s) of the premises, a water soluble glue must be used to
prevent damage to the floor in the event said carpeting is
subsequently removed. Any such damage shall be considered the fault of
the Tenant who will be responsible for any and all incurred expenses
to restore the floor to its original condition. In the event Tenant
occupies the demised premises with a carpet already "in-place" which
the Tenant finds acceptable, then, if required at the end of tenancy,
disposal of the in-place carpet shall be deemed to be Tenant's
responsibility as set forth above for new installations.
(d) EXTERIOR ARCHITECTURE -Tenant shall not change (whether by
alteration, replacement, rebuilding or otherwise) the exterior color
and/or architectural treatment of the premises or of the building in
which that same are located, or any part thereof.
(e) SIGNS - Notwithstanding terms and conditions contained in the
third Covenant of the preprinted portion of the Lease, Tenant shall be
permitted to affix to the building an identification sign provided the
design, color, and composition (includes neon type signs) are approved
by the Landlord in writing. Landlord shall provide Tenant with the
appropriate dimensions for the sign predicated on the building
exterior geometry and the size of the demised premises. In no event
shall the sign be larger than eight square feet of total area. Tenant
must submit a sketch or photo of the proposed sign for approval.
Placement of the sign will be at the sole discretion of the Landlord.
No other signs are permitted in, about, or on the Flowerfield Park
grounds unless specifically approved in writing by the Landlord.
Landlord reserves the right to remove any nonconforming sign(s) and
Tenant agrees to indemnify Landlord against any claims for any damages
arising either directly, indirectly, or consequentially from any acts
of Landlord in regards to the removal of said nonconforming sign(s).
Tenant waives any and all claims against Landlord for the removal of
any nonconforming signs.
Tenant shall be entitled to a name-location plate on the main
directory sign at no cost to the Tenant. The plate shall be consistent
with other plates on the sign in both overall size, color, and layout.
In the event Landlord does not provide said plate, Tenant agrees that
its only remedy shall be solely the cash value of the plate itself.
Landlord's acceptance of any name for listing on the Flowerfield Park
Directory will not be deemed, nor will it substitute for, Landlord's
consent, as required by this Lease, if such covenants be applicable,
to any sublease, assignment, or other occupancy of the demised
premises.
(f) TRADE FIXTURES - It is mutually agreed and understood that Tenant
has caused to be installed; assumed in place either by purchase,
lease, rental, default, or other manner; or otherwise has the
exclusive use of the herein defined trade fixtures listed below but
not restricted to the following:
NONE
Patriot Communications Technology, Inc. Lease Page 16 of 22
It is agreed that it shall be Tenant's sole financial
responsibility to remove Tenant's trade fixtures as have been defined
herein. Tenant shall be solely responsible for reverting the demised
premises to its original condition after vacation at the end of
tenancy unless Landlord has directed, in writing, that certain
improvements associated with the installation of the trade fixtures
are considered attached to the freehold and, therefore, property of
the Landlord.
(g) REMOVAL AND REVERSION - It is further agreed that Tenant shall not
remove or cause to be removed any fixtures, wiring, electrical panels,
plumbing, fans, equipment, water pipes, or any other installation that
was "in place" in or about the demised premises at the onset of
tenancy without the express written consent of the Landlord. Any and
all improvements, changes, and/or additions to the demised premises
shall be removed at Tenant's expense or left in place at the sole
discretion of the Landlord. In no event may Tenant remove any
electrical equipment that was in place in the demised premises prior
to Tenant's tenancy.
It is further agreed that if the herein defined lease shall be a
successor to or in lieu of another lease between Landlord and Tenant
for these demised premises and said prior lease would run continuously
or concurrently if not terminated, it is understood that Landlord does
not waive nor is Landlord diminished with respect to any claims for
removal or reversion which may have been perfected by any prior lease,
as stipulated herein, by virtue of this lease.
At the end of the Tenancy, the demised premises and all
improvements comprising a part thereof will be delivered to Landlord
in broom clean condition, vacant and together with all keys to the
demised premises.
SECTION IV - USE RESTRICTIONS
1. ZONING - It is mutually agreed and understood that in the event the
Tenant's use of the premises is held to be in violation of the Town or
Local law or ordinances, the lease shall be considered and will be
terminated by mutual consent and there shall be no further obligation on
the part of either Landlord or Tenant.
VARIANCE OR SPECIAL EXCEPTION - TENANT - In the event a variance or special
exception is required by the zoning ordinances for the specific use
provision or occupancy required by Tenant, any and all costs, such as
filing and legal fees, related to the filing and/or securing of a variance
or special exception shall be borne solely by the Tenant.
VARIANCE OR SPECIAL EXCEPTION - LANDLORD - Landlord warrants to make
available existing, on a best efforts basis, survey maps, building permits,
Certificates of Occupancy, and other documents required by Tenant in its
filing. There shall be no warranty, either express or implied, that
documents, if any, tendered by Landlord shall be complete, ample, or
sufficient for the purposes required by the Tenant. Landlord, at its sole
discretion, may elect not to permit tenancy if restrictive covenants are
attached to the variance or special exception such that observance of the
restrictive covenants would negatively impact Landlord or other tenants at
Flowerfield.
Patriot Communications Technology, Inc. Lease Page 17 of 22
2. SUBLET - The Tenant shall not have the right to sublease any part of the
demised premises.
3. NON - NUISANCE - The Tenant agrees to conduct its work operations within
the demised premises in such manner as to be considered nuisance-free to
other Tenants, Landlord's neighbors, and the Landlord, and to perform good
"housekeeping" practices in order to satisfactorily conform to the Town of
Smithtown, County of Suffolk, and State of New York applicable laws and
ordinances. As the demised premises will be subject to periodic,
unannounced inspection by the Building, Environmental, and fire Inspectors
having the authority to cite any found violations which might have a
detrimental effect on the Tenant, the Landlord, or other tenants' business
operation, Landlord's neighbors or fire insurance premium rates, the
Landlord reserves the right to conduct its own inspections and request the
Tenant to take any required corrective action. In the event the Tenant,
upon receipt of a violation notice from Town, County, or State Officials;
Fire Insurance Underwriter inspectors; or the Landlord, fails to correct
the condition, then the Tenant shall be considered to have violated the
terms and conditions of this lease thus causing its termination as a
contractual agreement between the Tenant and the Landlord. Any fees or
penalties assessed by any municipal authority shall be paid for by Tenant.
4. PAINT SPRAYING - Tenant and Landlord mutually agree that Tenant will not
perform any paint spraying in the demises premises unless the Tenant has a
paint spray booth that meets Federal, State and Local safety and fire
requirements and the express written consent of the Landlord. Further it is
agreed that Tenant shall handle all flammable materials in a manner
consistent with Local and State fire regulations, and will utilize the
appropriate safety cans designed for specific flammable materials and a
properly vented safety storage cabinet for the storage of flammable
materials.
5. ACTIVITY RESTRICTIONS - The Tenant further agrees that he will not engage
in any of the following activities without the prior knowledge and written
consent of the Landlord:
(a) No Fire Sale: Conduct or permit any fire, bankruptcy, auction, or
"going out of business" sale (whether real or fictitious) in the
premises, or utilize any unethical method of business operation.
(b) Not Use Building Apron: Use, or permit to be used, the sidewalk
adjacent to, or any other space outside, the premises for display,
sale or any other similar undertaking.
(c) Not Misuse Plumbing Facilities: Use the plumbing facilities for
disposal of any materials destructive to the physical plumbing or
facilities, whether through the utilization of so-called "disposal" or
similar units or otherwise. The plumbing facilities shall include all
interior drains and exterior dry ▇▇▇▇▇, collection basins, sumps, and
road drains. Not dispose of any materials that are environmentally
unacceptable to the local, state or federal governments. In the event
the Tenant misuses any plumbing facility, the Landlord shall have the
right to immediately have the affected facility properly cleaned and
restored and charge the Tenant any and all associated costs.
(d) No Liens: Subject any fixtures, furnishings or equipment in or on
the premises and affixed to the reality, to any mortgages, liens,
conditional sales agreements or encumbrances.
Patriot Communications Technology, Inc. Lease Page 18 of 22
(e) Not Damage the Premises: Perform any act or carry on any practice
which may damage, mar or deface the premises or any other part of
Flowerfield. Damage shall also be construed as resin, epoxy materials,
lacquer, paints, glues, or any other material which may become affixed
to Landlord's walls, floors, ceiling, and fixtures as a result of
actions of Tenant and require special treatment for removal. Tenant
shall be required, at its expense, to restore the demised premises to
its original condition less normal wear and tear.
(f) Freight Handling Equipment: Use any forklift truck, tow, or any
other machine for handling freight in the premises, unless the same
equipment, if powered, be powered by electricity or propane.
(g) Not Exceed Floor Loads: Place a load on any floor in the interior
delivery system, if any, or in the premises exceeding the floor load
per square foot which such floor was designed to carry, or install,
operate or maintain therein any heavy item of equipment, except in
such manner as to achieve a proper distribution of the weight.
(h) Not Exceed Electrical Load: Install, operate, or maintain in the
premises any electrical equipment which will overload the electrical
system therein, or any part thereof, beyond its reasonable capacity
for proper and safe operation as determined by Landlord in light of
the overall system and requirements thereof in Flowerfield, or which
does not bear Underwriter's approval.
(i) Not Tamper with LILCO or Landlord's "House" Electric Meters:
Tenant is expressly prohibited from tampering with electric meters in
any manner whatsoever which would alter the meter's measurement of
electric use. Tenant will hold Landlord harmless from all civil
claims, fines, and expenses and any criminal action resulting from
tampering with electric meters.
(j) Not contaminate the Premises: Refrain from the dumping of waste
oil or other contaminants, as defined by environmental and/or
governmental agencies, onto, about, or into the ground. The disposal
of all such materials must, by mutual agreement, conform to the
applicable environmental regulations. The Landlord shall not be
responsible for the Tenant's violation of the regulations and any
financial penalties resulting from such acts shall be borne solely by
the Tenant.
In the event Tenant shall be directed by a governmental agency or
by Landlord to cease and desist from any activity which results or may
result in contamination of Landlord's real property and Tenant should
fail to immediately comply, Landlord shall immediately, under this
provision, become Tenant's Attorney in Fact to exercise any and all
rights and to execute any and all documents necessary to secure
compliance. Tenant hereby approves of any reasonable action taken by
Landlord pursuant to said Power of Attorney and waives any and all
claims in relation thereto.
SECTION V - FINANCIAL OBLIGATIONS OF TENANT-ESCALATORS, PENALTIES, AND REMEDIES
1. RENT SECURITY - At the time this lease is signed by both parties, the
Tenant shall pay to the Landlord the sum of two thousand five hundred fifty
dollars ($2,550.00) as the first month's rent that is due and payable
Patriot Communications Technology, Inc. Lease Page 19 of 22
hereunder and the additional sum of two thousand five hundred fifty dollars
($2,550.00) "security" guaranteeing Tenant conformance to the terms and
conditions of this lease. It is mutually agreed and understood that Tenant
was required to maintain four thousand dollars ($4,000.00) security on
deposit with the Landlord conforming to the terms and conditions of a lease
ending August 31, 1997. Tenant requests and Landlord agrees to apply the
existing security, if any, to this lease. Tenant therefore shall pay the
Landlord the shortfall of none ($0) plus any outstanding security monies
due under the prior lease which is the difference between the existing
security and the new security required above.
Said security payment of two thousand five hundred fifty dollars
($2,550.00) shall be deposited, by the Landlord, in an interest bearing
account and henceforth, for the duration of the lease term, the Tenant
shall receive, from the Landlord, a return on said deposit at a rate not
less than the current Chemical Bank, and/or its successor(s) passbook rate
less .25% nor more than 8.0% per annum. Actual return to be determined by
the current market rates as defined herein. Said payments to be made
annually to the Tenant.
The following schedule shall apply for the calculation of monthly interest
rates which rate is based on the current annualized average monthly yield
on money market accounts at Chemical Bank and Loan or its successors:
Money Market Average Tenant Monthly Interest Landlord
Monthly Yield Annualized Rate Accrued - Annualized Yield
----------------------------------------------------------------------------------
Curr Money Market rate but not
less than passbook to 5.50% actual yield -.25% .25%
From 5.501% to 6.7499% 5.25% 0.25% to 1.499%
From 6.75% to 9.5% 5.25%+curr yield-6.75% 1.5%
From 9.501 and up 8.00% curr yield-8.0%
It is agreed that on each anniversary date of this lease, Tenant shall be
required to deposit additional security in the amount of the difference
between the monthly rental rate in effect on the current anniversary date
and the monthly rate in effect on the prior year's anniversary date.
It is mutually agreed that the security money deposited with the Landlord
is considered as a guarantee that Tenant shall conform to all the
covenants, addenda, terms and conditions of this lease. The security
deposit or any part thereof may be applied by the Landlord with no prior
notice to cure any default of Tenant under this lease and upon notice by
Landlord of such application, the Tenant shall replenish the security
deposit in full by promptly paying to the Landlord the amount so applied
within ten days from receipt of said notice. It is further understood and
agreed that the amount set forth in any notice as being the amount required
by the Landlord to maintain the security deposit at the proper amount shall
be deemed additional rent and failure to pay same shall be a default in the
payment of additional rent resulting in the Landlord having the option to
exercise all of its remedies pursuant to this agreement.
Under no circumstances shall the security deposit be considered as an
advance payment of the rent for the ending month(s) of this Lease. Said
deposit will be retained by the Landlord until after the Tenant has vacated
the premises at which time the Landlord shall inspect the premises to
determine if any damage has been caused by Tenant. If non exists, then the
deposit will be returned to the Tenant, otherwise the deposit will be
considered applicable to any necessary repairs to be made by Landlord.
Patriot Communications Technology, Inc. Lease Page 20 of 22
PENALTY FOR NONPAYMENT OF LAST MONTH'S RENT - Tenant agrees that in the
event that the Tenant fails to pay the last month's rent due under this
Lease, that Tenant will agree to pay a penalty equivalent to an additional
month's rent plus the cost of any and all reasonable attorney's fees paid
by Landlord in connection with eviction proceedings commenced due to
Tenant's failure to pay the last month's rent.
2. (a) FIRE INSURANCE - Notwithstanding Covenant Twenty-third of the
preprinted portion of this lease, it is understood and agreed that in the
event the fire insurance premium on the demised building, where Tenant is
renting a portion thereof, is raised by virtue of the business conducted by
the Tenant in the premises, the Tenant will pay the Landlord the amount of
said increase.
(b) LIABILITY INSURANCE - Public Liability and Other Insurance: Tenant
covenants to provide on or before the commencement of the demised term and
to keep in force during the demised term a comprehensive liability policy
of insurance, including property damage, insuring Tenant and Gyrodyne
Company of America, Inc. as Landlord as an additional named insured under
the policy against any liability for injury to persons and/or property and
death of any person(s) occurring in on or about the premises, or any
appurtenances thereto. Such policy or policies to be written by one or more
responsible insurance companies authorized by the State of New York to do
business satisfactory to Landlord and the limits of liability thereunder
shall not be less than the amount of Five Hundred Thousand ($500,000)
dollars in respect to any one person injured killed, not less than the
amount of One Million ($1,000,000) dollars in respect to any one accident,
and not less than the amount of Fifty Thousand ($50,000) dollars in respect
to property damages.
All such insurance may be carried under the blanket policy covering the
premises and any other Tenant's properties. Tenant agrees to deliver to
Landlord, at least fifteen (15) days prior to the time such insurance is
first required to be carried by Tenant, and thereafter at least fifteen
(15) days prior to the expiration of any such policy, either a duplicate or
a certificate and true copy of all policies procured by Tenant in
compliance with its obligations hereunder, together with evidence of
payment thereof and including an endorsement which states that such
insurance may not be canceled, except upon ten (10) days written notice to
Landlord and only designee(s) of Landlord, and complete waiver of all
rights of subrogation against the Landlord, its servants, agents and/or
employees.
3. BROKER - The Tenant warrants and represents that no broker unless otherwise
set forth in this agreement and if one is set forth herein no other broker
is involved in the negotiation of this lease, nor in any of the
transactions connected therewith and agrees to indemnify and safe harmless
the Landlord from any claim for brokerage commissions due to acts of the
Tenant.
4. LEASE TERM AND ADJUSTMENTS - The term period of this lease shall be from
September 1, 1997 through August 31, 1998. Landlord herewith provides
Tenant an option to once extend the one year term of this lease for an
additional single year period in accordance with the escalation provisions
herein stipulated; items (a) through (f). In order to exercise its option,
Tenant must notify Landlord, in writing, of Tenant's intent to exercise its
one year renewal option at least 60 days prior to the expiration of each
lease term. In the event proper and timely notification as herein specified
is not executed by Tenant, Landlord shall no longer be bound by the terms
and conditions of the option offer. Time and method of notification is
deemed of the essence. The base annual rent for the first year of the lease
term period shall be $30,600.00 payable in monthly installments of
$2,550.00 each. Said base rent being subject to adjustments as follows:
Patriot Communications Technology, Inc. Lease Page 21 of 22
(a) REAL ESTATE TAXES - $3,310.00 ($1.18 x 2,805 sq. ft.) of the base
annual rent is allocated to the Landlord's real estate tax on the
"Flowerfield" property which includes Building #7 and the demised
premises therein. It is agreed that if at any time the Town of
Smithtown, N.Y. or the Town of Brookhaven, N.Y. levies a tax increase,
whether in the form of a rate increase or assessment change on the
property, regardless of the basis for change, which increase shall be
effective during any portion of the lease term, then there will be an
adjustment in the annual rent which will be computed on the basis of
the percentage of tax change multiplied by the $3,310.00. The
resultant, converted to a monthly charge if in excess of $.02/sq. ft.,
shall be added to the monthly rental rate in effect at that time;
otherwise, a single billing will be made during either January or
February, annually, as applicable.
(b) HEAT/FUEL OIL COST - The base annual rent includes the Landlord's
cost for supplying heat to the demised premises. Said cost factor
being set at the "peg" price of oil at $.85 per gallon (including NYS
Sales Tax, NYS Use Tax, propane gas, associated electric costs,
service and boiler insurance). Thus, if at any time after the
commencement of this lease and the end of the lease term period, the
cost per gallon of oil increases above the "peg" price, the rent will
be adjusted at the rate of $.01 per year per square foot of space
(2,805 sq. ft.) for each $.01 per gallon increase. This annual rent
adjustment will be converted to a monthly charge and added to the rent
in effect at that time.
(c) INSURANCE - The base annual rent includes the Landlord's cost for
building, general liability, and related insurance. $1,290.00 ($.46 x
2,805 sq. ft.) of the base annual rent is allocated to the Landlord's
insurance requirements. The cost per square foot of $.46 is predicated
on a 164,413 sq. ft. rental base and a premium base of $75,900.68 for
the current period. In the event in any lease year, the premium for
Landlord's insurance requirements covering the leased premises
increases over the premium amount in effect on the date of execution
of this agreement, within ten (10) days from receipt of notification,
the Tenant shall pay its proportionate share of said increase to the
Landlord. Said obligation shall be deemed additional rent, and
Tenant's proportionate share of said increase shall be computed on the
basis of the percentage increase in insurance costs multiplied by the
$1,290.00. Notification by Landlord shall be deemed conclusive if sent
in writing, setting forth the computations resulting in a statement as
to Tenant's proportionate liability. Notwithstanding anything else
contained herein to the contrary, this obligation of the Tenant shall
remain in full force and effect even if the Landlord elects to
self-insure provided the Landlord presents a statement in writing
showing what the premium amount would be and the increase if the
Landlord had elected not to self-insure.
(d) GARBAGE/TRASH REMOVAL COST - FOR ESCALATION PURPOSES ONLY: $842.00
($.30 x 2,805 sq. ft.) of the base annual rent is allocated to
garbage/trash and recyclable material removal for the demised
premises. Landlord has reserved in the rental base a flat $.101 charge
per square foot for the removal of pallets, oversized debris, dumpster
area cleanup, land allocation expense and overhead charges. It is
mutually agreed that the $.30/sq. ft. rate is a pro rata apportionment
of cartage expenses for garbage and separable recyclables. Any change
in the Town of Smithtown Town Code which may: establish a commercial
cartage district, implement direct charge tipping fee(s) and/or
administrative assessment(s) on Landlord, change the composition of
required recyclable(s), or otherwise impact the total cartage expense
allocable to the demised premises shall be passed-through to Tenant.
Further, if at any time after the commencement of this lease and
before the end of the lease term period, the cartage rates charged to
the Landlord by the Landlord's ▇▇▇▇▇▇ increase, there will be an
adjustment in the annual rent predicated on Tenant's allocable base.
Tenant's base "peg" for all additional charges, regardless of source,
shall be 2,805/100,214 sq. ft. or 2.8% of the total current ▇▇▇▇ of
$30,000.60. The total cartage ▇▇▇▇ for calculation purposes shall be
deemed to include all Town of Smithtown and cartage company charges
plus applicable federal, state and local taxes. Any resultant
additional rental, converted to a monthly charge, shall be added to
the monthly rental rate in effect at that time.
Patriot Communications Technology, Inc. Lease Page 22 of 22
(e) SECURITY GUARDS - $738.00 ($.263 x 2,805 sq. ft.) of the base
annual rent is allocated to security guard services for the demised
premises. Landlord has determined that security services during the
1997 calendar year, January 1st through December 31st, shall be
assessed at the rate of $21.92 per month per 1,000 square feet of
rented space based on a budgeted cost of $43,203.00 apportioned over
164,413 sq. ft. rental base. This provision shall not be construed to
limit Landlord's ability to continue to provide security guard
services to Tenant. Landlord may, in its sole discretion, extend or
curtail security guard services in any manner deemed necessary by
Landlord. Landlord may adjust Tenant's annual rent to reflect such
changes in security guard services.
(f) COST OF LIVING ADJUSTMENT - On each anniversary date of this
lease, there will be a "Cost of Living (C.O.L.)" rent adjustment based
upon the to-be-published Consumer Price Index for July, 1997 and each
succeeding July Consumer Price Index or a flat four (4%) percent
increase whichever is greater.
In this regard, $22,036.00 of the first year's base rent of $30,600.00
shall be the C.O.L. base subject to the first annual rent adjustment
without regard to abatements or concessions, if any. In making such
calculations, no effect shall be given to existing rent concessions or
abatements (if any). The amount of said rent adjustment added to the
C.O.L. base rent will establish the new C.O.L. base rent subject to
the following year's "Cost of Living" adjustment. The same formula
will be used to determine subsequent "C.O.L." adjustments.
"Price Index" shall mean the Consumer Price Index for All Urban
Consumers, published by the Bureau of Labor Statistics (BLS), U.S.
Department of Labor, New York, NY and Northeastern N.J.. region,
1982-84 = 100, or any other renamed local index covering the New York,
NY region.
If the BLS changes the publication frequency of the Price Index so
that a Price Index is not available to make a cost-of-living
adjustment of annual rent as specified herein, the cost-of-living
adjustment shall be based on the percentage difference between the
Price Index for the closest preceding month for which a Price Index is
available and the Price Index for the Base Month as defined in this
Lease.
In the event that the Consumer Price Index (CPI) ceases to use
1982-84=100 as the basis calculation, or if in Landlord's sole
judgment, a substantial change is made in the terms or number of items
contained in the CPI, then the CPI shall be adjusted (the
"Adjustment") to the figure that would have been arrived at (or as
close to such figure as shall be practical) had the manner of
Patriot Communications Technology, Inc. Lease Page 23 of 22
computing the CPI in effect at the date of this lease not been
altered. Further, if in Landlord's sole judgment, such adjustment is
impossible or impractical, then the revised CPI shall be deemed to
replace the original CPI for purposes of this covenant.
If the BLS otherwise substantially revises, or ceases publication of,
the Price Index, then a substitute index for determining
cost-of-living adjustments, issued by the BLS or by a reliable
governmental or other nonpartisan publication, shall be reasonably
designated by Landlord.
5. ACCOUNTING METHODS - It is understood and agreed that upon presentation to
the Tenant of any computation with respect to rent, and/or additional rent,
or utilities, or computations as to the amount of money to be paid by the
Tenant concerning any obligation referred to in this lease to be performed
by the Tenant, provided said computations are predicated upon reasonable
accounting methods and procedures, then and in that event, computations of
the Landlord shall be deemed conclusive and binding upon Tenant and the
Tenant hereby waives the presentation of any and all invoices, checks or
bills prior to making said payment and during any trial concerning the
failure of the Tenant to make said payments.
6. LATE PAYMENT PENALTIES - Rent and any other Tenant incurred charges
appearing on the Landlord's monthly invoices are due and payable to the
Landlord on the first day of each month. There will be a four (4) day grace
period through the fifth (5th) day of the month for the payment of such due
bills. However any such unpaid bills after said date will be assessed at
the late charge rate of $3.00 per day or 2% per month, whichever is higher,
computed from the first day of the month in which said ▇▇▇▇ is due, to the
date of payment to the Landlord. This late charge shall be cumulative and
be deemed an additive to the rent for the month such due ▇▇▇▇ is issued.
Late Charges run concurrently (for example: October and November rents are
paid December 1st, therefore, a total late penalty of $273.00 would be
applicable - $183.00 for the 61 days outstanding on the October rent and
$90.00 for the 30 days outstanding on the November rent.)
Tenant's postdated check will be considered subject to the above assessment
if the check date exceeds the above stated payment deadline.
In the event a Tenant check fails bank clearance for any reason, the
Landlord shall charge the Tenant with a $20.00 penalty fee to cover bank
and administrative costs. If the Tenant fails to correct this deficiency
and has not paid the Landlord the monies due by the tenth day of the month,
then the late charge as set forth above shall be applicable.
The Landlord's failure to demand or collect said late charges shall in no
way be deemed a waiver of any right thereto or any other rights or remedies
that the Landlord may have under the terms of this lease, by summary
proceedings or otherwise.
7. ADDITIONAL RENT - Any and all payments and/or expenses required to be paid
by the Tenant shall be deemed additional rent and rent if same are due the
Landlord or in the event the Landlord expends said monies on behalf of the
Tenant for which the Tenant has an obligation to reimburse the Landlord.
8. CESSATION OF UTILITIES - Tenant hereby agrees that in the event the Tenant
has failed to pay to the Landlord any utility charges that are billed to
the Tenant by the Landlord and said charges remain unpaid and outstanding
for a period of 60 days, in addition to the other remedies the Landlord may
Patriot Communications Technology, Inc. Lease Page 24 of 22
have, the Landlord shall have the right to terminate the providing of said
utilities to the leased premises of the Tenant. Notwithstanding anything
else contained herein to the contrary, in such event, the Tenant waives any
and all claims against the Landlord for any damages whatsoever,
consequential and/or punitive, that may be incurred by the Tenant as a
result of the termination of said utilities.
9. NOTICES AND SERVICE OF PROCESS - Any notice or demand which under the terms
of this lease or under any statute must or may be given or made by the
parties hereto or legal documents including, but not limited to, those
documents commencing legal action and/or proceedings shall be in writing
and shall be deemed properly served upon the Tenant if served personally or
by mailing same through the U.S. mail to either the address of the Tenant
as stated in the preprinted portion of the lease or the initialed Tenant
Fact Sheet or to any of the personal guarantors of said lease. If and when
said service is made, the Tenant hereby waives any jurisdictional defects
and/or claims of improper service.
10. DEFAULT - Tenant hereby agrees that in the event Tenant breaches the terms
and conditions of this lease for two consecutive monthly periods or three
times in any 12 month period, same shall be deemed a default thereby
permitting the Landlord, at its option to terminate this Lease as per the
terms and conditions of said Lease.
11. ALLOCATION OF PARTIAL PAYMENTS AND DISPUTES - In the event of a partial
payment or a payment on account, hereinafter for the purpose of this
provision these terms are used interchangeably, Tenant shall not have the
right to allocate payment(s) against specific charge(s) on an invoice(s)
submitted by Landlord. Further, Tenant waives the right to claim that
Landlord shall be diminished legally with respect to accepting said partial
payment in any arbitration or legal proceeding. Landlord and Tenant
herewith reaffirm Landlord's undiminished rights, with respect to partial
payment(s) by Tenant, to recovery by Landlord for amounts invoiced and
unremitted by Tenant; recovery of any penalties, as provided elsewhere
herein, that may be assessed Tenant for underpayment; and recovery of the
premises, if such recovery shall be the subsequent result of a default
declaration.
In the event of a dispute between Landlord and Tenant for any invoiced
amounts, other than those pertaining to base rent, Tenant shall be required
to remit payment in full as per the terms of the invoice, and if no payment
terms are stated, within thirty (30) days of invoice, with a written
protest detailing all allegations, financial calculations, and
documentation for those amounts in dispute. In the event the parties are
unable to resolve the dispute within sixty days of the remittance, both
parties agree to submit to binding arbitration with respect to the disputed
amount(s). Failure to remit disputed amounts shall be construed by Landlord
as non-payment and shall remain grounds for a default declaration by
Landlord. Unless a written notice to Landlord of a dispute, conveyed and
qualified under NOTICES AND SERVICE OF PROCESS herein, is made at the time
of remittance, Tenant waives all rights to recourse.
12. RENT ACCELERATION - Anything herein to the contrary notwithstanding, the
premises herein mentioned are demised for the whole term with the whole
amount of rent herein reserved, due and payable at the time of the making
of this lease and the payment of rent in installments as herein provided is
for the convenience of the Tenant only. If default by the Tenant in the
making of any installment payment of rent occurs, then the whole of the
rent reserved for the whole period shall then become due and payable to the
Landlord without notice or demand.
Patriot Communications Technology, Inc. Lease Page 25 of 22
13. LANGUAGE PRECEDENCE - In the event of conflict between the preprinted
portion of this Lease and the Addendum hereto, the terms and conditions set
forth in the Addendum shall control.
14. HEADINGS - Headings used throughout this Lease are inserted for reference
purposes only, and are not to be considered or taken into account in
construing the terms or provisions of any covenant or paragraph hereof nor
to be deemed in any way to qualify, modify or explain the effect of any
such provisions or terms.
15. ATTORNEY'S FEES - All parties agree that $500.00 is reasonable as an
attorney's fees if the matter is resolved after service of Notice of
Petition and Petition and receipt of Tenant's response and prior to
appearing in court. In the event any further papers not associated with the
above resolution must be prepared and/or further expenditure of time is
required, then, and in that event, Landlord shall be entitled to additional
reasonable legal fees over and above the sum of $500.00 at the agreed upon
stipulated reasonable sum of $175.00 per hour.
16. ADDRESS DESIGNATION - Landlord has the full right at any time to name and
change the name of the building and property and to change the designated
address of the building and property. The building and property may be
named after any person, firm or otherwise, whether or not the name is, or
resembles, the name of a tenant of the building and property.
17. EARLY TERMINATION - Landlord herewith agrees, with the following
qualification, to release Tenant from this lease, if and only if, during
the term of this lease Tenant and Landlord enter into another lease for a
different premises at Flowerfield. Tenant shall remain liable for all
applicable covenants, such as, but not restricted to: reversion provisions,
exit charges, abandonment, etc., as if this lease had run its full course.
18. LEASE AMENDMENTS - If, in the event that the Landlord desires financing or
refinancing for the premise of which the demised premise form a part,
Tenant may not withhold, delay, or defer consent for any modifications to
the lease as a condition for the financing or refinancing.
Remedies - The Tenant is permitted fifteen (15) days after written notice
from the Landlord to conform to the conditions which are requested by the
lender. If Tenant fails or refuses to execute conditions requested by
Landlord, Landlord reserves the right to terminate the lease or perform the
execution of any document for and on behalf of Tenant as its
attorney-in-fact. Landlord as attorney-in-fact may only execute instruments
pertaining to conditions requested by lender.
SECTION VI - VACATION AND ABANDONMENT
1. HOLDOVER - In the event this lease is not renewed and the Tenant has failed
to vacate the premises prior to August 31, 1998 or as extended by Section
V, Paragraph 4. (f) then the Tenant agrees to pay the Landlord triple the
monthly rent then applicable for each month or portion thereof that Tenant
retains possession of the premises or any portion thereof, after the
expiration or termination of this lease and shall also pay all damages
sustained by Landlord by reason of such retention of possession.
Patriot Communications Technology, Inc. Lease Page 26 of 22
In addition, Tenant will also pay those other items of additional rent
which would have been payable monthly pursuant to this lease, had this
lease not expired. The provisions of this section shall not constitute a
waiver by the Landlord of any reentry rights of the Landlord pursuant to
other provisions contained herein or as provided by law. At the sole option
of the Landlord, expressed by written notice to the Tenant, but not
otherwise, such holding over shall constitute a renewal of this lease for a
period of one year on the terms and conditions herein set forth at triple
the then current monthly rent. In the event the Landlord does not exercise
said option, then as previously set forth, the Tenant shall pay the
Landlord triple the then monthly rent during the holdover period.
2. GUARANTEES - It is mutually agreed and understood that if Tenant after the
conclusion of the hereinbefore defined lease term becomes a month-to-month
tenant, a tenant at will, or a holdover tenant, all personal, business, and
corporate guarantees applicable to the hereinbefore defined lease term
shall unequivocally also apply to the extended lease term.
3. (a) ABANDONED PROPERTY - It is hereby understood and agreed that in
the event the Tenant leaves any property on the demised premises or
any common areas in, on, or about Flowerfield, subsequent to the
expiration of the within lease that said property is hereby deemed
abandoned and the Landlord may dispose of said property at its option
without any liability on the part of the Landlord. It is further
understood and agreed that the Tenant waives any and all rights, title
and interest to said property, releases and waives any and all claims
thereto and further agrees that the Tenant will be responsible to the
Landlord for any and all expenses incurred by the Landlord concerning
said property.
(b) UNAUTHORIZED VEHICLES - Landlord retains the sole right to
reassign parking and may, with one week's written notice, change the
parking lot and/or parking area assignment of Tenant. Landlord shall
not unilaterally, however, reduce the agreed upon spaces allotted
Tenant above. It is understood and agreed that in the event any
vehicles of any parties, their servants, agents and/or employees,
invitees, licensees, subtenants, etc., are improperly parked on the
grounds of the Landlord, the Landlord is hereby granted express
permission to take any and all necessary steps to remove said vehicles
including but not limited to the towing of said vehicles. For the
purpose of this paragraph "improperly parked" shall mean any vehicle
parked in a loading zone; parked in an area designated with a sign as
a no parking zone; parked in other than a designated parking lot,
parked overnight without the express permission of the Landlord, or
parked overnight in other than a fenced-in reserved parking area. Any
and all expenses relating to the removal of said vehicles and/or the
safeguarding of said vehicles, if the Landlord elects to do so, shall
be the responsibility of either the owner of the vehicles or the
applicable tenant whose business led to said vehicles being on the
grounds of the Landlord and said parties hereby agree to immediately
reimburse the Landlord for said expenses together with interest at the
2% per month and same shall constitute additional rent to which the
failure to pay shall result in the Landlord exercising, at its option,
any of the remedies provided for herein. The Tenant specifically
waives any claim for damages arising from the removal of vehicles
owned and/or operated by the Tenant, its servants, agents and/or
employees and releases the Landlord from any such claims. In the event
claims are made by third parties as a result of the removal of said
vehicles or any damage caused to said vehicles, the Tenant hereby
agrees to hold harmless, indemnify and defend the Landlord concerning
said claims.
Patriot Communications Technology, Inc. Lease Page 27 of 22
In the event Tenant fails to comply with this provision, Tenant hereby
appoints the Landlord as its Attorney in Fact, authorizing Landlord to
execute all documents and take any action on behalf of Tenant to
secure compliance herewith. Tenant hereby agrees that the exercising
of said Power of Attorney by Landlord is proper and waives any and all
claims concerning same.
(C) UNPLATED VEHICLES - It is agreed that motor vehicles without
license plates constitute a special situation. Any unregistered motor
vehicle parked on the Flowerfield premises will be subject to all the
conditions herein above described and to a ten ($10.00) dollar per day
parking fee effective after the first twenty-four hours of parking. In
the event Tenant fails to comply with this provision, Tenant hereby
appoints the Landlord as its Attorney in Fact, authorizing Landlord to
execute all documents and take any action on behalf of Tenant to
secure compliance herewith. Tenant hereby agrees that the exercising
of said Power of Attorney by Landlord is proper and waives any and all
claims concerning same.
(d) WASTE - Tenant at expiration of Lease shall be solely liable for
removal of any drums, cans, or containers over one gallon in addition
to its other responsibilities. In the event the drums, cans or
containers are not removed, until such time that same are complied
with, Tenant agrees not to demand return of any portion or its
securities being held by Landlord. In addition thereto, the Tenant
again appoints the Landlord as its Attorney in Fact to exercise any
and all rights, and to execute any and all documents necessary to
secure compliance with this provision. Tenant hereby approves of any
actions taken by the Landlord pursuant to said Power of Attorney and
waives any and all claims in relation thereto.
4. ENTIRE AGREEMENT - This Lease with attached preprinted portion and
Addendums is the complete agreement between Tenant and Landlord in its
entirety with respect to the premises leased herein and cannot be changed,
modified or terminated orally. There are no representations, agreements,
arrangements or understandings oral or written, between Tenant and Landlord
up to the date of this Lease, which are not fully contained herein.
Gyrodyne Company of America, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
(Date) 8/27/97 (Landlord)
---------
Patriot Communications Technology, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
(Date) 8/27/97 (Tenant)
---------
Patriot Communications Technology, Inc. Lease Page 28 of 22
Tenant Billing Change Form
1. Tenant Name Patriot Communications Technology, Inc.
2. Tenant Number 126
3. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, 102 & ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Billing Address No change
4. Reason for Change 1 year renewal of lease with 1 year option
5. Effective Date 9/1/97
6. Log # _______________________________
7. Duration 1 year - 9/1/97-8/31/98
8. Comments 1) Increase base rent to $2,550.00/month
2) Increase security to $2,550.00
(nothing to ▇▇▇▇ for)
3) Sprinkler percentage - 5.24%
4) 2,805 square feet
Patriot Communications Technology, Inc. Lease Page 29 of 22