EX-10.27
================================================================================
▇▇▇▇▇▇ ▇▇▇▇▇▇
DOING BUSINESS AS
A & C REALTY
Lessor
and
ARCON COATING ▇▇▇▇▇, INC.
Lessee
-----------------------------
AMENDED AND RESTATED
AGREEMENT OF LEASE
-----------------------------
Premises: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
Dated: June 1, 1988
================================================================================
TABLE OF CONTENTS
Section Page
------- ----
1 Leased Property; Fixed Term ..................................... 1
2 Representations of Lessor ........................................ 2
3 Basic Rent, etc. ................................................. 2
3.1 Basic Rent ................................................. 2
3.2 Basic Rent Net; Manner of Payment ......................... 2
4 Additional Rent .................................................. 3
5 Net Lease; No Counterclaim, Abatement, etc. ..................... 3
6 Condition and Use of Property .................................... 3
7 Maintenance and Repairs; Shoring, etc. ........................... 4
8 Alterations and Additions, etc. .................................. 5
9 Lessee's Equipment ............................................... 6
10 Utility Services ................................................. 7
11 No Claims Against Lessor, etc. ................................... 7
12.1 Indemnification by Lessee ................................. 7
12.2 Indemnification by Lessor ................................. 8
12.3 General Indemnity Provision ............................... 8
13 Inspection, etc. ................................................. 8
14 Payment of Taxes, etc. ........................................... 9
14.1 Definition of Taxes ....................................... 10
14.2 Apportionment of Taxes .................................... 10
15 Compliance with Legal and Insurance
Requirements, Instruments ........................................ 10
16 Liens, Easements, etc. ........................................... 10
17 Permitted Contests ............................................... 11
18 Insurance ........................................................ 12
18.1 Risks to be Insured ....................................... 12
18.2 Policy Provisions ......................................... 13
18.3 Delivery of Policies; Insurance
Certificates .............................................. 13
19 Damage to or Destruction of Property ............................. 13
19.1 Lessee to Give Notice ..................................... 13
19.2 Restoration ............................................... 13
-i-
Section Page
------- ----
19.3 Right to Terminate ........................................ 14
19.4 Application of Insurance Proceeds ......................... 14
20 Taking of Property ............................................... 15
20.1 Lessee to Give Notice; Assignment
of Awards, etc. ........................................... 15
20.2 Partial Taking ............................................ 16
20.3 Total Taking .............................................. 16
20.4 Application of Awards, etc. ............................... 16
21 Certificate of Lessee as to
No Event of Default, etc. ........................................ 17
22 Right of Lessor to Perform
Lessee's Covenants, etc. ......................................... 18
23 Assignments, Subleases, Mortgages, etc. .......................... 18
23.1 Assignments, Subleases, etc. by Lessee .................... 18
23.2 Assignments, Mortgages, etc. by Lessor .................... 20
23.3 Subordination ............................................. 21
23.4 Attornment ................................................ 21
23.5 Non-disturbance of Lessee ................................. 21
23.6 Notices to Mortgagees by Lessee ........................... 22
24 Events of Default; Termination .................................. 22
25 Repossession, etc. ............................................... 24
26 Reletting ........................................................ 24
27 Damages .......................................................... 24
27.1 Termination of Lease Not to Relieve
Lessee of Obligations ..................................... 24
27.2 Current Damages ........................................... 24
27.3 Final Damages ............................................. 25
28 Default by Lessor ................................................ 25
29 Lessee's Waiver of Statutory Rights .............................. 26
30 No Waiver ........................................................ 26
31 Remedies Cumulative .............................................. 26
32 Modification, Acceptance of Surrender ............................ 27
33 No Merger of Title ............................................... 27
-ii-
Section Page
------- ----
34 Options to Extend ................................................ 27
34.1 Extension ................................................. 27
34.2 Rent During the Extended Term ............................. 28
34.3 Determination of Fair Market Rental Value ................. 28
35 End of Lease Term ................................................ 29
36 Notices, etc. .................................................... 29
37 Quiet Enjoyment .................................................. 30
38 Limitation of Liability of Lessor ................................ 30
39 Miscellaneous .................................................... 31
40 Unavoidable Delays ............................................... 31
41 Consent .......................................................... 31
42 Rights of ▇▇▇▇▇▇ Funds ........................................... 31
42.1 Notices ................................................... 31
42.2 Notice of an Event of Default ............................. 32
42.3 Right to Cure Lessee's Default ............................ 32
42.4 No Termination, Amendment or Waiver ....................... 32
42.5 Acceptance of ▇▇▇▇▇▇'▇ Performance ........................ 32
43 Definitions ...................................................... 32
44 Broker ........................................................... 36
45 Right of First Refusal ........................................... 36
Schedule A -- DESCRIPTION OF THE LAND
Schedule B -- TITLE EXCEPTIONS
Schedule C -- BASIC RENT SCHEDULE
-iii-
THIS AMENDED AND RESTATED AGREEMENT OF LEASE (this "Lease"), dated as of
the 1st day of June, 1988, by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇ doing business as A & C
REALTY, with offices at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter
referred to as "Lessor") and ARCON COATING ▇▇▇▇▇, INC., a New York corporation
having an office at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter
referred to as "Lessee").
WITNESSETH:
WHEREAS, the Lessor and the Lessee are now the landlord and tenant,
respectively, under a lease agreement dated April 1, 1986 (the "Old Lease")
demising certain premises (herein the "Property"); and
WHEREAS, the Lessee desires to sell and transfer all of the business and
assets of the Lessee, including its interests under the Old Lease, as amended
and restated by this Agreement, and Lessor has agreed to consent to the transfer
of such interests provided the Old Lease is amended and restated in its entirety
as hereinafter set forth;
NOW THEREFORE, in consideration of the mutual agreements hereinafter set
forth, Lessor and Lessee hereby agree to amend, restate and supersede the Old
Lease in its entirety, as follows:
1. Leased Property; Fixed Term. Upon and subject to the conditions
and limitations set forth below, Lessor leases to Lessee, and Lessee leases and
rents from Lessor, the following property having a street address and commonly
known as ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Property"):
(a) The tract of land (the "Land") situate lying and being in
the Town of Hempstead, County of Nassau, State of New York, more particularly
described on Schedule A hereto.
(b) All buildings, improvements and structures now or
hereafter located on the Land (or any portion thereof) and all facilities,
fixtures, installations and equipment (including, without limitation, all
private roadways, private sidewalks, parking facilities, heating, ventilating,
air conditioning, plumbing and electrical equipment, lighting equipment,
elevators, fire control and sprinkler systems, generators, security systems and
waste removal systems) now or hereafter installed in or attached to any such
buildings, improvements or structures; provided, however, the foregoing property
demised hereunder does not include (i) any equipment, machinery, apparatus or
other personal proper-
ty of any kind or (ii) any Lessee's Equipment (defined hereinafter) located on
or in such buildings, improvements or structures, all of such personal property
and Lessee's Equipment being owned by Lessee (such of the Property as is demised
under this clause (b) being hereinafter collectively referred to as the
"Improvements"); and
(c) all rights of way or use, servitudes, licenses, easements,
tenements, hereditaments and appurtenances now or hereafter belonging or
pertaining to any of the foregoing.
TO HAVE AND TO HOLD the Property for a fixed term of approximately ten
(10) years (the "Fixed Term") commencing on June 1, 1988, (the "Commencement
Date") and expiring at midnight on the last day of the month in which the tenth
anniversary of the date hereof occurs, unless sooner terminated as herein
expressly provided or extended as provided in Section 34 of this Lease.
2. Representations of Lessor. Lessor represents and warrants to the
Lessee as follows, as of the date hereof: (i) Lessor has the right and authority
to enter into this Lease and to perform the obligations on Lessor's part to be
performed hereunder; (ii) Lessor's fee simple title to the Property is subject
only to the matters set forth in Schedule B attached hereto and made a part
hereof; (iii) a true and accurate copy of the Certificate of Occupancy for the
Improvements is attached hereto as Exhibit A and such certificate is in full
force and effect; (iv) Lessor has received no notice and has no knowledge of any
violation of any Legal Requirement affecting the Property; and (v) the Property
and its present use by Lessee does not violate or conflict with any covenants,
conditions or restrictions applicable thereto or the Certificate of Occupancy. A
material breach of any representation by Lessor shall be a default by Lessor
hereunder.
3. Basic Rent, etc.
3.1 Basic Rent. Net basic rental ("Basic Rent") shall be
payable monthly on the first day of each month during the term of the Lease in
the amounts specified on Schedule C annexed hereto. If this Lease shall commence
on a day other than the first day of a month, the first monthly installment of
Basic Rent shall be appropriately pro rated on a per diem basis.
3.2 Basic Rent Net; Manner of Payment. The Basic Rent and all
other sums payable to Lessor hereunder shall be payable in such currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts and shall be paid to Lessor at Lessor's
address set forth above or to such other person or address as Lessor from time
to time may designate. The Basic Rent shall be net to Lessor so that this Lease
shall yield to Lessor the full amount of the installments of Basic Rent
throughout the term of this Lease without deduction or setoff, except as
provided in this Lease.
2
4. Additional Rent. Lessee will also pay, from time to time as
provided in this Lease or on demand of Lessor, as additional rent (the
"Additional Rent") (a) all amounts, liabilities, charges and obligations that
Lessee herein assumes or agrees to pay other than Basic Rent, and (b) interest
at the rate of twelve (12%) percent per annum on such of the foregoing amounts,
liabilities and obligations as are payable by Lessee that are not paid when due
and that Lessor shall have paid on behalf of Lessee, from the date of payment
thereof by Lessor until paid by Lessee and on all overdue installments of Basic
Rent and other sums payable under this Lease, from the due date thereof until
payment. No interest on the foregoing amounts, however, shall be computed and
applied to such amounts, except for installments of Basic Rent, unless and until
(i) Lessee shall have received a written notice from Lessor describing the
nature and the extent of the payment due hereunder and (ii) a period of five (5)
Business Days from the receipt of such notice shall have elapsed. In the event
of any failure on the part of Lessee to pay any Additional Rent within five (5)
Business Days of said Notice, Lessor shall have all the rights, powers and
remedies provided for in this Lease or at law or in equity or otherwise in the
case of nonpayment of the Basic Rent. Lessor authorizes Lessee to make all
payments of Additional Rent required by Lessor to be paid to persons other than
Lessor. Upon payment in full of all sums payable as Additional Rent to persons
other than Lessor, such payment shall be deemed to be the payment of Additional
Rent to Lessor. On request, Lessee shall provide to Lessor such proof as Lessor
shall reasonably require that the aforesaid payments as Additional Rent to
persons other than Lessor shall have been paid. In case such person shall refuse
to accept payment of such Additional Rent from Lessee, Lessee shall pay such
Additional Rent directly to Lessor or its designee at the place where the Basic
Rent is then payable and Lessee shall not be in Default if such person to whom
payment by Lessee has been attempted fails or refuses to accept payment from
Lessee. Notwithstanding anything set forth herein to the contrary, the term
"Additional Rent" shall in no event be deemed to include any liquidated damages
payable to Lessor by Lessee in the event of a default by Lessee of its
obligations hereunder.
5. Net Lease; No Counterclaim, Abatement, etc. This Lease is an
absolutely net lease, and the Basic Rent, Additional Rent and all other sums
payable hereunder shall be paid without notice, demand, counterclaim, setoff or
deduction and without abatement, suspension, deferment, diminution or reduction
except, with respect to all of the foregoing, as may be allowed by express
provision of this Lease.
6. Condition and Use of Property. Lessor represents and warrants to
Lessee that, subject only to exceptions set forth in Schedule B, the Property is
in good and clean order and in working condition suitable for Lessee's intended
use. Lessee may use and occupy the Property only for any lawful purpose and will
not do or, permit any act or thing that, subject to Sec-
3
tion 17 hereof, is contrary to any Legal Requirement, Insurance Requirement or
any Certificate of Occupancy now or hereafter applicable or issued with respect
to the Improvements, or that may materially impair the value or utility of the
Property or any part thereof, or that constitutes a public or private nuisance
or waste of the Property or any part thereof.
7. Maintenance and Repairs; Shoring, etc.
7.1 Except to the extent the responsibility of the Lessor
under Section 7.2 hereof, Lessee at its sole expense will keep and maintain the
Improvements, including, without limitation, all windows, doors, loading bay
doors and shelters, trash compactors, plumbing, mechanical and electrical
systems, heating, ventilating and air conditioning systems ("HVAC"), toilet and
sanitary systems, and the adjoining sidewalks, curbs, driveways, parking areas
and (to the extent located on the Land) streets and ways and all means of access
to the Property and all Lessee's Equipment and the property of Lessee referred
to in Section 1(b) (whether deemed realty or personal property under applicable
law) in good and clean order and condition, and will promptly, at its own
expense, make all necessary repairs, replacements and renewals, and all
painting, thereof, whether interior or exterior, ordinary or extraordinary,
foreseen or unforeseen and whether or not necessitated by wear, tear,
obsolescence or defects. Notwithstanding Section 7.2 hereof, Lessee shall be
responsible for all repairs or replacements interior and exterior, structural
and nonstructural, ordinary and extraordinary, in and to the Property, including
the Improvements and Land and the facilities and systems thereof, the need for
which arises out of (a) the performance or existence of any work or alterations
made by Lessee after the Commencement Date, (b) the installation, use or
operation of any Lessee's Equipment or any other property of Lessee in the
Improvements, (c) the moving of any Lessee's Equipment or any other property of
Lessee in or out of the Improvements, or (d) the act, omission, misuse or
neglect of Lessee or any of its subtenants or its or their employees, agents,
contractors or invitees. All repairs, replacements and renewals shall be at
least equal in quality, utility and class to the original condition of the
Property. Lessee at its expense will do or cause others to do all shoring of
foundations and walls of any buildings or other improvements on the Property or
of the ground adjacent thereto, and every other act, necessary or appropriate
for the preservation and safety thereof, in each case if required in connection
with any excavation or other building operation required of or undertaken by
Lessee upon the Property or any adjoining property, whether or not the owner of
the Property or any other Person shall, by any Legal Requirement or otherwise,
be required to take such action or be liable for failure to do so.
7.2 Except to the extent the responsibility of Lessee as
provided in the second sentence of Section 7.1, Lessor shall, within a
reasonable period after receipt of notice from Lessee, make or cause to be made
necessary repairs to or replace-
4
ments of the foundation, the roof, outer walls, structural supports and other
structural elements of the Improvements. The cost of such repairs or
replacements paid for by Lessor shall be amortized over the useful life of the
repair or replacements in accordance with generally accepted accounting
practices consistently applied and shall be charged to Lessee as Additional Rent
on an annual basis (in the event of disagreement, the amount of such annual
charge shall be conclusively determined and certified to Lessor and Lessee by an
independent certified public accountant consented to by Lessor and Lessee) for
each year of the Fixed Term or any Extended Term of this Lease (if applicable)
that falls within such useful life. Lessee shall pay any such charge within
thirty (30) days of demand by Lessor.
7.3 Except as otherwise expressly provided in this Lease,
Lessor shall have no liability to Lessee, nor shall Lessee's covenants and
obligations under this Lease be reduced or abated in any manner whatsoever, by
reason of any inconvenience, annoyance, interruption or injury to business
arising from Lessor's doing any repairs, maintenance, or changes which Lessor
is required or permitted by this Lease, or required by Legal Requirements or
Insurance Requirements, to make in or to any portion of the Property.
8. Alterations and Additions, etc. Lessee at its sole expense may
make reasonable alterations of and additions to the Improvements or any part
thereof; provided, however, that Lessee obtains Lessor's prior written consent,
which consent shall not be unreasonably withheld, and any such alteration or
addition (a) shall not impair the general character of the Improvements or
reduce the fair market value of any such Improvements below the fair market
value of such Improvements immediately before such alteration or addition
(assuming the Property was then being maintained in accordance with the terms of
this Lease), (b) shall be effected with due diligence, in a good and workmanlike
manner and in compliance with all Legal Requirements, Insurance Requirements and
the provisions of Section 16 hereof, and (c) shall be fully paid for by Lessee
upon its construction or installation on the Property, provided Lessee may
contest, by appropriate legal proceedings conducted in good faith and with due
diligence, any claims by contractors or subcontractors arising from any such
alterations or additions, provided that Lessee shall have furnished to Lessor
such security as Lessor may reasonably deem necessary to assure the ultimate
payment of the contested amount. Lessee agrees to carry and will cause Lessee's
contractors and subcontractors to carry such ▇▇▇▇▇▇▇'▇ compensation, general
liability, personal and property damage insurance as Lessor may reasonably
require. Lessee agrees to obtain and deliver to Lessor, to the extent available
pursuant to law and current construction industry practices, written and
unconditional waivers of mechanic's liens upon the Property for all work, labor
and services to be performed and materials to be furnished in connection with
such work, signed by all contractors, subcontractors, materialmen and laborers
involved in such work. Without limiting the generality of the foregoing, any
alteration or addition to
5
the Improvements which is reasonably estimated to cost more than $250,000 (or
which, when aggregated with the cost of all alterations and additions performed
in respect of such Improvements during the immediately preceding twelve-month
period, would require an aggregate expenditure of more than $250,000, shall be
performed under the supervision of an engineer or architect reasonably
acceptable to Lessor (but who may be, in either case, an employee of Lessee),
pursuant to, and in accordance with, plans, specifications and cost estimates
reviewed by, and reasonably acceptable to, Lessor, and, in addition, Lessee
shall furnish to Lessor, prior to the commencement of each such alteration or
addition, such security for the payment and performance of such work (including,
but not limited to, payment and performance bonds) as Lessor or any Mortgagee
shall reasonably require. In any event in which Lessee shall, or shall be
required to, furnish Lessor with plans and specifications for any such
alteration or addition, Lessor may engage, at Lessee's expense (which expense
chargeable to Lessee shall not exceed five (5%) percent of the total cost of the
proposed work), an architect or engineer to review such plans and specifications
on Lessor's or any Mortgagee's behalf and, unless Lessor or any Mortgagee shall
have sooner notified Lessee of its disapproval and its reasons therefor in
reasonable detail, each such party shall be deemed to have approved such plans
and specifications thirty (30) days after its receipt thereof. Without limiting
the generality of the foregoing, any payment or performance bonds which may be
required by Lessor (or any Mortgagee) in compliance with this Lease in
connection with any such alteration or addition must be required by Lessor (or
such Mortgagee) within (30) days after its receipt of the plans and
specifications for such alteration or addition or such bonds shall be deemed
waived. All alterations of and additions to the Improvements, other than
Lessee's Equipment, shall immediately become the property of Lessor and shall
constitute a part of the Property. Upon completion of any alteration or addition
requiring the participation of a supervisory engineer or architect hereunder,
Lessee shall deliver to Lessor a certificate of such supervising engineer and/or
architect stating that, without material exception or condition, such
alterations and additions were made substantially in accordance with the plans
and specifications previously approved by Lessor (subject to reasonable change
orders which, if substantial, shall have been approved previously by Lessor,
such approval not to be unreasonably withheld). Upon termination of this Lease,
Lessor will accept the Property as altered pursuant to the provisions hereof
without any obligation upon Lessee to restore the Property to its former
condition.
9. Lessee's Equipment.
9.1 All moveable partitions, business and trade fixtures,
machinery and equipment, communications equipment and office equipment, and the
property of Lessee referred to in Section 1(b) (whether deemed realty or
personal property under applicable law), whether or not attached to or built
into the Proper-
6
ty, which is now located on or installed in the Property or is hereafter placed
on or installed in the Property by or for the account of Lessee without expense
to Lessor and can be removed without structural damage to the Property, and all
furniture, furnishings, and other movable personal property owned by Lessee and
located now or hereafter in the Property (collectively, "Lessee's Equipment")
shall be and shall remain the property of Lessee and may be removed by Lessee at
any time during the Term; provided that if any of the Lessee's Equipment is
removed, Lessee shall repair or pay the cost of repairing any damage to the
Property resulting from the installation and/or removal thereof.
9.2 At or before the expiration of the Term of this Lease or
within fifteen (15) days after the date of earlier termination of this Lease,
Lessee shall remove from the Property all of the Lessee's Equipment (except such
items thereof as Lessor shall have expressly permitted to remain, which property
shall become the property of Lessor if not removed, and Lessee shall repair any
damage to the Property resulting from any installation and/or removal of the
Lessee's Equipment. Any items of the Lessee's Equipment which shall remain in
the Property after the expiration of the Term of this Lease, or after a period
of fifteen (15) days following an earlier termination date, may, at the option
of Lessor, be deemed to have been abandoned, and in such case such items may be
retained by Lessor as its property or disposed of by Landlord, without liability
to Lessee, in such manner as Lessor shall determine at Lessee's expense.
10. Utility Services. Lessee will pay or cause to be paid all
charges of any nature for utilities, communications and other services rendered
at the Property. Lessor shall not be required to furnish any services, utilities
or facilities whatsoever to the Property.
11. No Claims Against Lessor, etc. Nothing contained in this Lease
shall constitute any consent or request by Lessor or any Mortgagee, express or
implied, for the performance of any labor or services or the furnishing of any
materials or other property in respect of the Property or any part thereof, nor
as giving Lessee any right, power or authority to contract for or permit the
performance of any labor or service or the furnishing of any materials or other
property in such fashion as would permit the making of any claim against Lessor
or any Mortgagee in respect thereof.
12.1 Indemnification by Lessee. Lessee will (to the full
extent permitted by applicable law) protect, indemnify, defend and save harmless
Lessor, any partner in Lessor, any partner in any partner in Lessor, and any
officer, director or shareholder, beneficiary, employee, agent or representative
of any of the foregoing and any Mortgagee of the Property from and against all
liabilities, obligations, claims, damages, penalties, causes of action, costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses) imposed upon or incurred
7
by or asserted against any of them or against the Property or any interest of
them therein by reason of the occurrence or existence of any of the following
arising during the term of this Lease (but excluding any of the foregoing
arising out of any condition existing or event occurring prior to the
Commencement Date), except to the extent caused by the willful misconduct or
gross negligence of any of them: (a) the use, occupancy or possession of the
Property or any part thereof by the Lessee, its employees, invitees, subtenants,
any assignee of this Lease, and any other lawfully claiming thereunder, provided
that nothing contained herein shall require Lessee to pay any Taxes not required
to be paid by Lessee under Section 14 hereof, (b) any accident, injury to or
death of any person or persons or loss of or damage to property occurring on or
about the Property, the Land or any part thereof or the adjoining sidewalks,
curbs, driveways, streets or ways, if any, caused by the negligence or wrongful
act or omission of Lessee or Lessee's agents, employees, assigns, subtenants, or
contractors, (c) any failure on the part of Lessee to perform or comply with any
of the material provisions of this Lease, or (d) performance of any labor or
services or the furnishing of any materials or other property in respect of the
Property or any part thereof for or on behalf of Lessee (and excluding repairs
or replacements required of Lessor hereunder).
12.2 Indemnification by Lessor. Lessor will (to the full
extent permitted by applicable law) protect, indemnify, defend and save harmless
Lessee, any partner in Lessee, any partner in any partner in Lessee, any
officer, director or shareholder of Lessee, any officer, director or shareholder
of a shareholder of Lessee, and any beneficiary, employee, agent, representative
or partner of any of the foregoing for any and all injury, loss or damage or
claims for injury, loss or damage, of whatever nature, to any person or property
caused by or resulting from any omission, wrongful act, gross negligence or
negligence of Lessor or any failure of Lessor to perform its obligations
hereunder.
12.3 General Indemnity Provision. Any party entitled to
indemnification hereunder (an "Indemnified Party") shall give notice to the
indemnifying party of the existence of any claim giving rise to the need for
such indemnification within ten (10) Business Days after the date on which such
Indemnified Party shall have obtained actual knowledge of such claim.
13. Inspection, etc. Lessor and any Mortgagee and their respective
authorized representatives may enter the Property or any part thereof at all
reasonable times provided that no such entry shall be made without reasonable
advance notice or shall unreasonably interfere with the conduct of Lessee's
business, for the purpose of (a) inspecting the same or for the purpose of doing
any work under Sections 7.2, 19, 20 and 22 hereof, and taking all such action
thereon as may be reasonably necessary or appropriate for any such purpose (but
nothing contained in this Section 13 shall create or imply any duty on the part
of Lessor or any Mortgagee to do any such work), (b) posting notices
8
of nonresponsibility for liens of mechanics, materialmen, suppliers or vendors,
(c) exhibiting the Property for the purpose of sale or mortgage or other
financing, (d) at any time within eighteen (18) months prior to the expiration
of the term of this Lease, exhibiting the Property for the purpose of lease,
and (e) at any time after Lessee shall have abandoned the Property, displaying
thereon advertisements for sale or letting. Lessor shall not have any duty to
make any such inspection and shall not incur any liability or obligation for not
making any such inspection. No such entry in and of itself shall constitute an
eviction of Lessee.
14. Payment of Taxes, etc.
14.1 Definition of Taxes. Subject to the provisions of Section
17 hereof, Lessee will pay, as Additional Rent, throughout the Fixed Term and
any Extended Term, directly to the appropriate taxing or other governmental
authorities having jurisdiction, at least ten (10) days before any fine,
penalty, interest or cost may be added for nonpayment, all taxes (including,
without limitation, real estate taxes, or other property taxes and all sales,
value added, use and similar taxes), assessments (including, without limitation,
all assessments for public improvements or benefits, whether or not commenced or
completed prior to the date hereof and whether or not to be completed within the
term hereof) installments of which become due during the term hereof, water,
sewer or other rents, rates and charges, excises, levies, license fees, permit
fees, inspection fees and other authorization fees and other charges, in each
case whether general or special, ordinary or extraordinary, or foreseen or
unforeseen, of every character (including all interest, additions to tax and
penalties thereon), that may be assessed, levied, confirmed or imposed on or in
respect of or be a lien upon (a) the Property or any part thereof or any rent
therefrom or any estate, right or interest therein, or (b) any occupancy, use,
leasing, or possession of or activity conducted on, the Property or any part
thereof or any gross receipts thereof or of the rent therefrom, but only to the
extent that any such tax or assessment is of a nature that nonpayment thereof
would result in a lien against the Land, the Property or any rent therefrom (all
of the foregoing being hereinafter collectively referred to as "Taxes").
Notwithstanding the foregoing or any other provision of this Lease, Lessee shall
not be required to pay any income, profits or revenue tax upon the income, gains
or revenues of Lessor, nor any franchise, excise, corporate, estate,
inheritance, succession, capital levy or transfer tax of Lessor, nor any
interest, additions to tax or penalties in respect thereof. Upon request made by
Lessor or any Mortgagee, Lessee shall furnish to Lessor official receipts or
other proof reasonably satisfactory to Lessor evidencing payment of any Taxes in
accordance with the requirements of this Section 14. If Lessor shall receive any
notice of nonpayment of any Taxes, Lessor shall give prompt written notice
thereof to Lessee; provided, however, that Lessor's failure to provide
9
any such notice shall not reduce or otherwise affect any obligation of Lessee
hereunder.
14.2 Apportionment of Taxes. Taxes relating to a fiscal period
of the taxing authority, a part of which period is included within the term of
this Lease and a part of which is included in a period of time before the
commencement of, or after the expiration of, the term of this Lease (whether or
not such Taxes shall be assessed, levied, confirmed, imposed upon or in respect
of or become a lien upon the Property, or shall become payable, during the term
of this Lease) shall be apportioned upon execution of this Lease and at the
expiration of the term of this Lease, so that Lessee shall pay Taxes only with
respect to the term of this Lease.
15. Compliance with Legal and Insurance Requirements, Instruments.
Subject to the provisions of Section 17 hereof, Lessee at its expense will
promptly (a) comply in all material respects with all Legal Requirements and
Insurance Requirements, whether or not compliance therewith shall interfere with
the use and enjoyment of the Property or any part thereof, and (b) procure,
maintain and comply with all permits, licenses and other authorizations required
for any use of the Property or any part thereof then being made, and for the
proper erection, installation, operation and maintenance of the Improvements and
Lessee's Equipment or any part thereof. If any structural changes or additions
are required to be made to the Property due to a change in Legal Requirements
after the Commencement Date, Lessor shall perform same, and the cost thereof
shall be amortized over the useful life of the change or addition in accordance
with generally accepted accounting practices consistently applied and charged to
Lessee as Additional Rent on an annual basis (in the event of disagreement the
amount of such annual charge shall be conclusively determined and certified to
Lessor and Lessee by an independent certified public accountant consented to by
Lessor and Lessee) for each year of the Fixed Term or any Extended Term of this
Lease (if applicable) that falls within such useful life. Lessee shall pay such
charge within thirty (30) days of demand by Lessor.
16. Liens, Easements, etc. (a) Subject to the provisions of Section
17 hereof, Lessee will not directly or indirectly create or permit to be created
or to remain, and will discharge or provide suitable bond for, any mortgage,
lien, encumbrance or charge on, pledge of, or conditional sale or other title
retention agreement with respect to, the Property or any part thereof or
Lessee's interest therein, or the Basic Rent, Additional Rent or any other sum
payable under this Lease, other than (i) this Lease and any assignment, sublease
or mortgage permitted hereby, (ii) any lien affecting the Property resulting
from any act or failure to act by Lessor or any Mortgagee (and no act or failure
to act of Lessee or any Person claiming thereunder) or any liability or
obligation on the part of Lessor or any Person claiming by, through or under
Lessor, and (iii) any lien or encum-
10
brance of record as of the date hereof. NOTICE IS HEREBY GIVEN THAT NEITHER
LESSOR NOR ANY MORTGAGEE SHALL BE LIABLE FOR ANY LABOR, SERVICE OR MATERIALS
FURNISHED OR TO BE FURNISHED TO LESSEE OR THE PROPERTY, OR TO ANYONE HOLDING THE
PROPERTY OR ANY PART THEREOF, AND THAT NO MECHANIC'S LIEN OR OTHER LIEN SHALL BE
ATTACHED TO OR AFFECT THE INTEREST OF LESSOR OR ANY MORTGAGEE IN AND TO THE
PROPERTY OR ANY PART THEREOF.
(b) So long as no Event of Default has occurred and is
continuing, Lessee may request from time to time and Lessor shall grant
easements over the Property to utility companies for the purpose of providing
utility services to existing or planned Improvements; provided, however, that no
such utility easements shall materially lessen the value of such Property or
materially impair the use thereof; and provided further, that the granting of
such easements shall impose no cost or expense whatsoever upon Lessor or any
Mortgagee.
17. Permitted Contests. Lessee at its expense may contest by
appropriate legal proceedings conducted in good faith and with due diligence,
the amount or validity or application, in whole or in part, of any Taxes or lien
therefor or any Legal Requirement or Insurance Requirement or the application of
any instrument of record affecting the Property or any part thereof or any
claims of mechanics, materialmen, suppliers or vendors or lien therefor, and may
withhold payment of amounts due with respect to the foregoing pending such
contest; provided, however, that (a) such proceedings shall suspend the
collection of such amount (b) neither the Property nor any part thereof or
interest therein (or any sums payable hereunder) would be in any danger of being
sold, forfeited or lost, nor would the use or occupancy of the Property (or any
part thereof) be adversely affected, (c) Lessor shall not be in any danger of
any civil or criminal liability by reason thereof and neither the Property nor
any part thereof or interest therein (or any sums payable hereunder) would be
subject to the imposition of any lien as a result of such failure, and (d)
Lessee shall have either (i) paid the disputed amount under protest, or (ii) if
the disputed amount exceeds $50,000, furnished to Lessor, a court of competent
jurisdiction or other appropriate party such security as Lessor may deem
reasonably necessary to insure the ultimate payment of the contested amount and
to prevent the forfeiture of any sums payable to Lessor or any Mortgagee
hereunder. Lessee shall give prompt written notice to Lessor of the commencement
of any contest referred to in the preceding sentence, providing a reasonably
detailed description thereof, and Lessor shall, at Lessee's expense, cooperate
with Lessee with respect to any such contest. Lessee agrees that each such
contest shall be promptly prosecuted to final conclusion, and Lessee shall
indemnify, defend and save Lessor and any Mortgagee harmless from and against
any and all losses, judgments, decrees and costs (including, without limitation,
reasonable attorneys' fees and expenses) incurred in connection therewith.
Lessee agrees that it will, promptly after final determination of each such
contest, fully pay and discharge the amounts which
11
shall finally be levied, assessed, charged or imposed or determined to be
payable, together with all penalties, fines, interests, costs and expenses
incurred in connection therewith, and perform all acts the performance of which
shall be finally ordered or decreed as a result thereof.
18. Insurance.
18.1 Risks to be Insured. Lessee, at its sole expense, will
maintain throughout the Term of this Lease with insurers authorized to issue
insurance in the State of New York and having an A.M. Best rating of "B+" or
better or otherwise approved, in writing, by Lessor and any Mortgagee (a)
insurance with respect to the Improvements against loss or damage by fire,
lightning and other risks from time to time included under "all-risk" policies
and against loss or damage by sprinkler leakage, water damage, collapse,
vandalism and malicious mischief, in amounts sufficient to prevent Lessor and
Lessee from becoming coinsurers of any loss under the applicable policies, and
in any event in amounts not less than 100% of the actual replacement cost of the
Improvements (initially determined as of the date on which such insurance is
originally issued, and subsequently redetermined on the basis of an annual
review of the actual replacement cost of the Improvements), as reasonably
determined at the request of Lessor, and, at Lessee's expense, by the insurer or
insurers issuing such insurance (the "Improvements Insurance"); (b)
comprehensive general liability insurance against claims arising out of or
connected with the possession, use, leasing, operation or condition of the
Property in such amounts as are usually carried by persons operating similar
properties in the same general locality but in any event with a combined single
limit of not less than $1,000,000 for any single injury to a person and
$3,000,000 for all claims with respect to property damage and personal injury
and death with respect to any one occurrence; (c) insurance with respect to
Lessee's Equipment, the other properties and business of Lessee against loss or
damage of the kinds and in amounts from time to time customarily insured against
by persons owning or using similar property; (d) workers' compensation insurance
and (e) loss of rentals insurance in an amount equal to the aggregate of
one-year's (i) Basic Rent, (ii) Taxes, and (iii) Premiums for all required
insurance (the "Rent Insurance"). In addition, during any period of repair,
alteration or addition to the Property such that existing insurance is
inadequate or inappropriate, Lessee shall obtain and keep in effect Builder's
Risk insurance in such amounts as shall be reasonably recommended by such
insurance expert, or as Lessor shall reasonably request. The insurance required
under this Section 18.1 may be subject to a deductible (the amount of which
Lessee shall pay in the event of loss) and may be effected under a blanket
policy or policies covering the Property and other property and assets not
constituting part of the Property; provided, however, that, any such policy
shall specify the portion of the total coverage of such policy or policies that
is allocated to the Property and
12
shall, in all other respects, comply with the requirements of this Section 18.
18.2 Policy Provisions. All insurance maintained by Lessee
pursuant to Section 18.1 hereof shall (a) name Lessor, Lessee and any Mortgagee
as insured parties to the extent of their insureable interests, (b) provide that
all insurance proceeds for losses of less than $50,000 shall be adjusted by and
be payable to Lessee to be used by Lessee, to the extent necessary, for
Restoration, (c) provide, in the case of Improvements Insurance, that all
insurance proceeds for losses of at least $50,000 shall be adjusted by Lessor
and Lessee jointly and shall be payable to a Depository to be held in trust
pursuant to the terms of this Lease, (d) include effective waivers by the
insurer of all claims for insurance premiums against all loss payees and named
insured parties (other than Lessee) and all rights of subrogation against any
named insured party, (e) in the case of Rent Insurance, provide that all
proceeds for losses shall be payable to Lessor, (f) provide that any losses
shall be payable notwithstanding (i) any foreclosure or other proceeding or
notice of sale relating to the Property or this Lease, or (ii) any change in the
title to or ownership of the Property or any interest therein, (g) provide that
if all or any part of such policy is cancelled, terminated or expires, the
insurer will forthwith give written notice thereof to each named insured party
and loss payee and that no cancellation, reduction in amount or material change
in coverage thereof shall be effective until at least thirty (30) days after
delivery to each named insured party and loss payee of written notice thereof,
and (h) be reasonably satisfactory in all other respects to Lessor and any
Mortgagee.
18.3 Delivery of Policies; Insurance Certificates. Lessee will
deliver to Lessor and any Mortgagee promptly upon request, and in any event
within thirty (30) days after the issuance of any renewal or substitute policies
or any policy amendments or supplements, certificates of all insurance policies
and any amendments or supplements thereto with respect to the Property that
Lessee is required to maintain pursuant to this Section 18, together with
evidence as to the payment of all premiums then due thereon, and (c) not later
than thirty (30) days prior to the expiration of any policy, a certificate of
the insurer evidencing the replacement or renewal thereof.
19. Damage to or Destruction of Property.
19.1 Lessee to Give Notice. In case of any damage to or
destruction of the Improvements, the Restoration of which is reasonably
estimated to cost more than $25,000, Lessee will promptly give notice thereof to
Lessor, generally describing the nature and extent of such damage or destruction
and setting forth Lessee's best estimate of the cost of Restoration.
19.2 Restoration. Subject to Section 19.3, in case of any
damage to or destruction of the Improvements, Lessee
13
will, at its sole cost and expense, whether or not such damage or destruction
shall have been insured, and whether or not the insurance proceeds shall be
sufficient for the purpose, promptly commence and complete (subject to
Unavoidable Delays) Restoration of such Improvements. The Lessee shall have no
obligation to restore the Improvements if the damage or destruction has resulted
from a risk not insureable under the form of "all risks" casualty policy
generally available in New York State or if insurance proceeds sufficient to pay
for all costs of Restoration are not made available by Lessor or Lessor's
Mortgagee. In the event of such uninsured damage or destruction or
unavailability of insurance proceeds, (i) Lessee may terminate this Lease by
notice to the Lessor as in Section 19.3 provided and (ii) unless Lessee shall
agree, at its sole cost and expense, to complete the Restoration, Lessor may
terminate this Lease by notice to the Lessee as in Section 19.3 provided. The
Basic Rent and all sums payable hereunder shall be abated or reduced as the case
may be in the proportion that the damaged area of the Improvements bears to the
total area of the Improvements, for the period from the date of the damage or
destruction of the Improvements to the date such damage or destruction shall be
substantially repaired; provided, however, should Lessee reoccupy and resume
business in a portion of the Improvements during the period the repair work is
taking place and prior to the date that the Improvements are substantially
repaired or made tenantable, the Basic Rent and all sums payable hereunder
allocable to such reoccupied portion, based upon the proportion which the area
of the reoccupied portion of the Improvements bears to the total area of the
Improvements, shall be payable by Lessee from the date of such occupancy.
19.3 Right to Terminate. If (a) the Improvements shall be
totally damaged or destroyed by fire or other casualty during the last two years
of the Term or, if the Term is extended, during the last two years of the Term
as extended, or (b) the Improvements are damaged by fire or other casualty
occurring at any other time during the Term of this Lease, which cannot
reasonably be expected to be completed within one year after the date of such
fire or casualty (any such damage or destruction described in clauses (a) and
(b) hereinafter referred to as a "Total Destruction") then either party may
terminate this Lease upon written notice given to the other within 60 days of
the occurence of the Total Destruction, in which case, this Lease shall
terminate on the 30th day following the giving of such notice. In the event
either party shall elect to terminate this Lease, all insurance proceeds of the
Improvements Insurance and Rent Insurance shall be paid to Lessor and Lessee
shall pay to Lessor the amount of any deductible then in effect under any such
insurance. No termination of this Lease pursuant to the terms hereof, however,
shall release Lessee from any liabilities or obligations for Fixed Rent and
Additional Rent hereunder accrued prior to the date of termination.
19.4 Application of Insurance Proceeds. Any compensation or
insurance payment under the Improvements Insurance
14
which is not in excess of $50,000 shall be paid directly to Lessee (if no Event
of Default then exists hereunder) and shall be expended by Lessee in connection
with the Restoration of the Property (with the balance of such proceeds, if any,
being retained by Lessee upon the completion of such Restoration). Except as
otherwise provided in Section 19.3 or this Section 19.4, all insurance proceeds
payable on account of the Improvements Insurance (less the actual costs, fees
and expenses incurred in connection with the collection thereof, for which the
Person incurring the same shall be reimbursed from such proceeds) shall be
applied or dealt with as follows:
(a) If the aggregate insurance proceeds received under
the Improvements Insurance by reason of any single instance of damage or
destruction shall be $50,000 or more, such insurance proceeds shall be paid over
to a Depository for the benefit of Lessor, Lessee and any Mortgagee, as their
respective interests may appear. Interest, if any, earned on insurance proceeds
while held by the Depository shall be added to the amount of such insurance
proceeds. All insurance proceeds so paid over to the Depository shall be held
and disposed of as provided in this Section 19.4. The Depository shall hold all
insurance proceeds deposited with it pursuant hereto and shall disburse the same
from time to time to Lessee or as it may direct from time to time as Restoration
progresses to pay (or reimburse Lessee for) the cost of Restoration, but only
upon the written request of Lessee accompanied by evidence reasonably
satisfactory to Lessor that (i) the sum requested has been paid or is then due
and payable and is a proper item of such cost, (ii) there are no mechanic's or
similar liens for labor or materials supplied in connection therewith (except
those that will be discharged upon payment of such sum or those that are being
contested in accordance with Section 17 hereof), and (iii) the remaining balance
of such proceeds will be sufficient to pay 100% of the remaining cost of
Restoration. The balance of such proceeds (if any) shall be paid to Lessee upon
the completion of the Restoration. All such proceeds received or payable on
account of a Total Destruction with respect to the Improvements, when Lessee
exercised its option to terminate this Lease, shall, upon Lessee's termination
of this Lease, be retained by Lessor and, in the event any deductible is then in
effect with respect to such proceeds, Lessee shall reimburse Lessor in the
amount of such deductible. All Restoration by Lessee shall be performed in
accordance with the terms and conditions of Section 8 hereof.
(b) There shall be paid directly to Lessor and to other
persons respectively entitled thereto under provisions of this Lease from time
to time the proceeds of any Rent Insurance provided under Section 18.1 insofar
as required in order to pay the Basic Rent, Taxes, Additional Rent and other
charges payable by Lessee under this Lease.
20. Taking of Property.
20.1 Lessee to Give Notice; Assignment of Awards, etc. In
case of a Taking, or the commencement of any proceedings
15
or negotiations that might result in a Taking, in respect of which the
Restoration of the improvements is reasonably estimated to cost more than
$50,000, Lessee will promptly give notice thereof to Lessor, generally
describing the nature and extent of such Taking or the nature of such
proceedings or negotiations and the nature and extent of the Taking that might
result therefrom. Lessee hereby irrevocably assigns, transfers and sets over to
Lessor all rights of Lessee to any award or payment on account of any Taking and
irrevocably authorizes and empowers Lessor, with full power of substitution, in
the name of Lessee or otherwise, to file and prosecute what would otherwise be
Lessee's claim for any such award or payment and to collect, receipt for and
retain the same. Lessor does not, however, reserve to itself and Lessee does not
assign to Lessor, any damages payable for Lessee's Equipment or other property
of Lessee or any damages which are considered "special damages" to Lessee
(including without limitation moving expenses and loss of business). The term
"special damages" as used in this Section shall not be construed to include any
damage to Lessee arising solely from Lessee's loss of its leasehold interest
herein as the result of any Taking for which damages are payable. Lessee
reserves the right to prosecute its own claim for its special damages or
Lessee's Equipment or other property.
20.2 Partial Taking. In case of a Taking other than a Total
Taking, (a) this Lease shall remain in effect as to the portion of the Property
remaining immediately after such Taking, with abatement or reduction of Basic
Rent, Additional Rent and all other sums payable hereunder, according to the
nature and extent of the space lost, and (b) Lessor, whether or not the awards
or payments, if any, on account of such Taking shall be sufficient for the
purpose, at its expense, will promptly commence and complete (subject to
Unavoidable Delays) Restoration of the affected Improvements, except for any
reduction in area of any Improvements caused by such Taking provided, however,
that in case of a Taking for temporary use ("temporary use" being defined for
all purposes herein as any taking for less than nine (9) consecutive months)
Lessor shall not be required to effect any Restoration until such Taking is
terminated.
20.3 Total Taking. (a) In case of the Taking of the Property
in its entirety (or all of the Improvements located thereon) or the Taking
(other than for temporary use) of such a substantial part of any Property (or
the Improvements located thereon) that, in the good faith judgment of either
Lessor or Lessee, either (i) the portion of such Property (or the Improvements
located thereon) remaining after such Taking is (and after Restoration would be)
unsuitable for use by the Lessee in the operation of its business, or (ii)
Restoration of such Property (or the Improvements located thereon) is not
economically feasible, either party may terminate this Lease upon thirty (30)
days notice of its intention so to do, provided such notice is given within
ninety (90) days of such Total Taking. Upon such termina-
16
tion, all costs and rents due hereunder shall ▇▇▇▇▇ as of the date of the
Taking.
20.4 Application of Awards, etc. All awards and payments
received by or payable to Lessor on account of a Taking (less the actual costs,
fees and expenses incurred in connection with the collection thereof, for which
the Person incurring the same shall be reimbursed from such award or payment,
together with any interest or other income earned on such awards from the
investment thereof and any other interest paid on any such awards prior to
disbursement hereunder) shall be paid and applied in accordance with this Lease
as follows:
(a) All such awards and payments actually received on
account of a Taking (other than a Total Taking based upon which Lessee shall
have terminated the Lease) shall be applied as follows:
(i) Subject to subparagraph (ii) below, such
awards and payments shall be paid to a Depository and applied to pay the cost of
the Restoration of the affected Property, such application to be effected by
Lessor substantially in the same manner and subject to the same conditions as
provided in Section 19.4 hereof with respect to insurance proceeds.
(ii) In case of a Taking for a temporary use, such
awards and payments shall be held and applied to the payment of Basic Rent and
Additional Rent becoming due hereunder for the period of temporary use;
provided, however, that if any portion of such awards and payments is made by
reason of any damage to or destruction of any Property (or the Improvements
thereon) during such Taking for temporary use, such portion shall be held and
applied as provided in subparagraph (i) above after such Taking is terminated.
(iii) The balance, if any, of such awards and
payments not required to be held or applied in accordance with subparagraphs (i)
and (ii) above, shall be paid to Lessor following completion of the Restoration.
(b) All such awards or payments received or payable on
account of a Total Taking with respect to any Property (or the Improvements
thereon) shall, upon termination of this Lease in accordance with the provisions
of Section 20.3 hereof, be paid to and retained by Lessor.
21. Certificate of Lessee as to No Event of Default, etc. In
connection with a proposed transaction including the Property or a request to
Lessor by a third party, Lessee will deliver to Lessor within fifteen (15) days
following Lessor's request therefor (but in no event more often than three (3)
times in any twelve-month period), (a) an Officers' Certificate stating (i) that
this Lease is unmodified and in full force and effect (or, if there have been
modifications, that this Lease is in full
17
force and effect, as modified, and stating the modifications), (ii) the date to
which the Basic Rent has been paid and that all Additional Rent payable on or
before the date of such Officers' Certificate has been paid and/or the amounts,
if any, of Basic or Additional Rent that have been set off or deducted pursuant
to express provisions of this Lease, and (iii) that, to the best knowledge of
the officers signing such certificate, no default or Event of Default exists
hereunder or, if any such default or Event of Default exists, specifying the
nature and period of existence thereof and what action Lessee is taking or has
taken with respect thereto, and (b) such information with respect to Lessee and
the Property or any part thereof as from time to time may reasonably be
requested. Lessor shall do the same at the request of Lessee.
22. Right of Lessor to Perform Lessee's Covenants, etc. If Lessee
shall fail to make any payment or perform any act required to be made or
performed by it hereunder, Lessor, upon ten days prior written notice to Lessee
(except in cases of emergency that threaten bodily injury or material property
damage), but without waiving or releasing any obligation or default, may (but
shall be under no obligation to) at any time thereafter make such payment or
perform such act for the account and at the expense of Lessee, and may enter
upon the Property or any part thereof for such purpose and take all such action
thereon as, in the reasonable opinion of Lessor, may be necessary or appropriate
therefor. No such entry in and of itself shall constitute an eviction of Lessee.
All payments so made by Lessor and all costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) incurred in connection
therewith or in connection with the performance by Lessor of any such act shall
constitute Additional Rent hereunder.
23. Assignments, Sublease, Mortgages, etc.
23.1 Assignments, Subleases, etc. by Lessee. Lessee, for
itself, its heirs, distributees, executors, administrators, legal
representatives, successors and assigns, expressly covenants that it shall not
assign, mortgage, pledge, encumber, or otherwise transfer this Lease nor
underlet, nor suffer, nor permit the Property or any part thereof to be used or
occupied by others without the prior written consent of Lessor in each instance,
which consent shall not be unreasonably withheld. If this Lease be assigned, or
if the Property or any part thereof be underlet or occupied by anybody other
than Lessee, without the prior written consent of Lessor, Lessor may, after an
Event of Default by Lessee, collect rent from the assignee, undertenant or
occupant, and apply the net amount collected to the rent herein reserved, but no
assignment, underletting, occupancy or collection shall be deemed a waiver of
the provisions hereof, the acceptance of the assignee, undertenant or occupant
as Lessee, or a release of Lessee from the further performance by Lessee of
covenants on the part of Lessee herein contained. The consent by Lessor to an
assignment or underletting shall not in any way be
18
construed to relieve Lessee from obtaining the express consent in writing of
Lessor to any further assignment or underletting. In no event shall any
permitted sublessee assign or encumber its sublease or further sublet all or any
portion of its sublet space, or otherwise suffer or permit the sublet space or
any part thereof to be used or occupied by others, without Lessor's prior
written consent in each instance, which further consent shall not be
unreasonably withheld. Any assignment, sublease, mortgage, pledge, encumbrance
or transfer in contravention of the provisions of this Section 23 shall be void.
(a) If Lessee shall at any time or times during the term
of this Lease desire to assign this Lease or sublet all or part of the Property,
Lessee shall give notice thereof to Lessor which notice shall be accompanied by
(i) a conformed or photostatic copy of the proposed assignment or sublease, the
effective or commencement date of which shall be not less than thirty (30) days
nor more than one hundred and eighty (180) days after the giving of such notice,
(ii) a statement setting forth in reasonable detail the identity of the proposed
assignee or subtenant, the nature of its business and its proposed use of the
Property, (iii) current financial information with respect to the proposed
assignee or subtenant, including, without limitation, its most recent financial
report, and (iv) an agreement by Lessee to indemnify Lessor against liability
resulting from any claims that may be made against Lessor by any persons
claiming any commission or similar compensation in connection with the proposed
assignment or sublease.
(b) If Lessor consents to an assignment of this Lease,
or in the case of an assignment to a Related Corporation (as defined
hereinbelow) or otherwise, that assignment shall not be binding upon Lessor
unless the assignee shall execute, acknowledge and deliver to Lessor (a) a
duplicate original instrument of assignment in form and substance reasonably
satisfactory to Lessor, duly executed by Lessee, and (b) an agreement, in form
and substance reasonably satisfactory to Lessor, duly executed by the assignee,
whereby the assignee shall unconditionally bound by all of the terms, covenants
and conditions of this Lease on Lessee's part to be observed or performed. If
Lessor consents to a proposed subletting of the Property, or any part thereof,
or in the case of a subletting to a Related Corporation, it shall be effective
after the following further conditions have been fulfilled (i) the subletting
shall be expressly subject to all of the obligations of Lessee under this Lease
and, without limiting the generality of the foregoing, the written sublease
agreement shall contain a provision that it is subject to all of the terms,
covenants and conditions of this Lease and shall specifically provide that there
shall be no further subletting of the sublet premises; and (ii) Lessor shall be
furnished with an executed duplicate original of the sublease agreement within
five (5) days after the date of its execution.
19
(c) In the event that the Lessee hereunder is a
corporation, other than one whose shares are regularly and publicly traded on a
recognized stock exchange in the United States, any change in the ownership of
and/or power to vote the majority of the outstanding capital stock of Lessee,
whether such change of ownership is by sale, assignment, merger, consolidation,
operation of law or otherwise, shall be deemed an assignment of this Lease,
which shall require the prior consent of Lessor as herein provided.
(d) Notwithstanding anything to the contrary contained
in this Lease, provided that an Event of Default is not continuing, the original
Lessee named herein shall have the right to assign this Lease or sublet all of
the Property, without requiring the consent of the Lessor, to (i) the parent
corporation of Lessee, (ii) a wholly-owned subsidiary of Lessee or of Lessee's
parent corporation, (iii) an entity that acquires all or substantially all of
the assets and business of the original Lessee named herein or of its parent
corporation, or (iv) to a corporation into or with which Lessee is merged or
consolidated in connection with or subsequent to the acquisition by such entity
of 100% of all classes of Lessee's issued and outstanding capital stock (any
such assignee or sublessee collectively, a "Related Corporation"). The right of
the original Lessee named herein to assign this Lease or sublet the entire
Property to a Related Corporation is conditioned upon (i) a certificate of
Lessee that the transaction with the assignee or sublessee is in compliance with
the conditions set forth in this subparagraph (d) shall have been delivered to
the Lessor at least ten days prior to the effective date of any such
transaction, (ii) Lessee or the surviving corporation, as the case may be, shall
continue to be liable under this lease and (iii) Lessee and such assignee or
sublessee shall have complied with the provisions of subparagraph (b) of Section
23.1 of this Lease.
23.2 Assignments, Mortgages, etc. by Lessor. The interest of
Lessor in this Lease and in and to the Property or any part thereof may, at any
time and from time to time, be sold, conveyed, assigned or otherwise transferred
in compliance with Section 45 hereof, without the prior written consent of
Lessee, and upon any such sale or conveyance of the Property as an entirety or
any such assignment or other transfer (other than for the purpose of securing
indebtedness) by any party Lessor of its interest in this Lease and in and to
the Property, such party Lessor shall be completely relieved of and from any and
all obligations not theretofore accrued under this Lease or otherwise with
respect to the Property, and such party Lessor shall have no further obligations
whatsoever to any party Lessee, except to the extent that any such obligation
accrued prior to the date of such sale, conveyance, assignment or transfer, and
Lessee shall thereupon look only to the then owner of Lessor's estate in the
Property for the performance of any obligations of Lessor hereunder. Lessor may
also from time to time mortgage or assign, by way of pledge or otherwise, any or
all of the rights, in whole or in
20
part, of Lessor under this Lease or in the Property to any Person as security
for the indebtedness or other obligations of Lessor. From and after any such
mortgage or assignment and to the extent provided in the instrument effecting
such mortgage or assignment, (a) such Mortgagee may enforce any and all of the
terms of this Lease to the extent so assigned as though such Mortgagee had been
a party hereto, (b) after Lessee shall receive notice of such assignment, no
action or failure to act on the part of Lessor shall adversely affect or limit
any rights of such Mortgagee, (c) no such assignment shall constitute an
assumption of any such obligations on the part of such Mortgagee, and (d) a copy
of all notices, demands, consents, approvals and other instruments given by
Lessee hereunder shall also be delivered to such Mortgagee, if such Mortgagee
shall have provided Lessee with written notice of its address for such purposes.
23.3 Subordination. This Lease and the term, rights and
leasehold estate of Lessee shall be subject and subordinate to any Mortgages,
all renewals, modifications, consolidations, replacements or extensions of any
such Mortgage, in all amounts and all advances thereon, in favor of the holder
of any such Mortgage provided the Mortgagee in question has executed,
acknowledged, and delivered the non-disturbance agreement referred to below. The
provisions of this Section 23.3 shall be self-operative, and no further
instruments of subordination shall be required by any such Lessor or Mortgagee.
However, upon request of Lessor, Lessee shall at any time or times, execute,
acknowledge and deliver to Lessor and the Mortgagee, without expense to Lessor,
any instrument reasonably required by Lessor or required by the Mortgagee to
confirm such subordination.
23.4 Attornment. At the request of the holder of any such
Mortgage Lessee shall attorn to and recognize as Lessee's landlord hereunder
such holder or successor. Upon such attornment this lease shall continue in full
force and effect and as a direct lease between Lessee and such holder or
successor except that such holder or successor shall not be (i) liable for any
previous act or omission by Lessor under this Lease, (ii) bound by any previous
modification of this Lease not expressly provided for herein unless such
modification shall have been expressly approved in writing by such holder or
successor, (iii) bound by any previous pre-payment of Basic Rent for a period
greater than one month in advance made after Lessee has received notice of such
mortgage or lease (exclusive of any Security Deposit hereunder) unless such
prepayment shall have been expressly approved in writing by such holder or
successor.
23.5 Non-disturbance of Lessee. Upon the execution of any
Mortgage or renewal, modification, consolidation, replacement, or extension of
any Mortgage described in Section 23.3, the Mortgagee shall execute, acknowledge
and deliver to Lessee an agreement in recordable form to the effect that (a) in
any action or proceeding to enforce the rights of the Mortgagee under the
Mortgage or any document or instrument collateral there-
21
to, Lessee and its subtenants, if any, will not be made parties defendant and
the term, right and leasehold estate of Lessee or such subtenants, if any, shall
not be affected, impaired or terminated by any such action or proceeding so long
as there is no continuing Event of Default, (b) if the Mortgagee or its nominee
or its designee shall become the owner of the fee of the Property (whether by
foreclosure or by acceptance of a deed in lieu thereof or by any other means),
it will acquire the same subject to all terms, covenants, and conditions of this
Lease and shall accept performance of the obligations on Lessee's part to be
performed under this Lease from Lessee, (c) the Mortgagee shall agree to apply
and allow Lessor to apply condemnation and insurance proceeds in accordance with
the provisions of this Lease and otherwise to allow Lessee the full exercise of
its rights, under this Lease, and (d) notwithstanding any collateral assignment
to the Mortgagee of the Basic Rent and Additional Rent under this Lease, so long
as no default shall occur and continue uncured under the Mortgage, Lessor shall
have the right to collect, retain and enjoy the Basic Rent and all Additional
Rent payable to Lessor.
23.6 Notices to Mortgagees by Lessee. In the event of any act
or omission by Lessor which would give Lessee the right to terminate this Lease
or to claim a partial or total eviction, Lessee will not exercise such right
unless and until it has given written notice of such act or omission to each
Mortgagee (provided the name and address of such Mortgagee shall have been
furnished to Lessee) and within twenty (20) days after Lessee gives such notice,
any Mortgagee either (a) notifies Lessee that it will remedy the act or omission
in question and a reasonable period for remedying such act or omission shall
have elapsed following the giving of such notice by the Mortgagee during which
the Mortgagee, with reasonable diligence, has not commenced and is not
continuing to remedy such act or omission or to cause it to be remedied or (b)
fails to give such notice.
24. Events of Default; Termination. The occurence of any one or more
of the following events shall constitute an "Event of Default" (whatever the
reason therefor, and whether voluntary or involuntary or by operation of law or
pursuant to or in compliance with any judgment, decree or order of any court or
any rule or regulation of any administrative or governmental body):
(a) if Lessee shall fail to pay any installment of Basic Rent,
Additional Rent or other sum required to be paid by Lessee hereunder on the date
the same becomes due and payable Lessor shall have given written notice to
Lessee of such failure and such failure continues for more than five (5)
Business Days after such notice; or
(b) if any Improvements Insurance or Rent Insurance shall be
cancelled or terminated or shall expire (and if replacement insurance complying
with the provisions of Section 18
22
hereof has not been effected prior to such cancellation, termination or
expiration), or shall be amended or modified, except, in each case, as permitted
by Section 18 hereof; or
(c) if Lessee shall fail to perform or comply with any term of
this Lease (other than those referred to in clauses (a) and (b) above) or any
term of any instrument related hereto pursuant to which Lessee undertakes
obligations or makes agreements for the benefit of Lessor or any Mortgagee and,
in any such case, such failure shall continue for more than thirty (30) days
after written notice from Lessor; provided, however, that in the case of any
such failure that is susceptible of being cured but that cannot with diligence
be cured within such thirty (30) day period, if Lessee shall promptly commence
to cure the same and shall thereafter prosecute the curing thereof with
diligence, the period within which such failure may be cured shall be extended
for a further period as shall be necessary for the curing thereof with
diligence, but in no event for a period extending beyond one hundred eighty
(180) days after written notice from Lessor to Lessee of such nonperformance or
noncompliance; or
(d) if the Property (or the Improvements located on the
Property) shall be left vacant without maintenance and security for a period of
thirty (30) consecutive days after notice from Lessor; or
(e) if Lessee shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or shall take any corporate action to authorize any of the foregoing; or
(f) if an involuntary case or other proceeding shall be
commenced against Lessee seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undischarged and unstayed for a period of ninety (90) days, or if
an order for relief shall be entered against Lessee under the federal bankruptcy
laws as now or hereafter in effect.
If an Event of Default shall occur, Lessor may at any time
thereafter, during the continuance of any such Event of Default, give a written
termination notice to Lessee specifying a
23
date (not less than five (5) days from the date on which such notice is given)
on which this Lease shall terminate, and, on such date, the term of this lease
shall terminate by limitation and/or rights of Lessee under this Lease shall
cease. All reasonable costs and expenses incurred by and on behalf of Lessor
(including, without limitation, reasonable attorneys fees and expenses)
occasioned by any default by Lessee under this Lease shall constitute Additional
Rent hereunder.
25. Repossession, etc. If an Event of Default shall have occurred
and be continuing, Lessor, whether or not the term of this Lease shall have been
terminated pursuant to Section 24 hereof, may enter upon and repossess the
Property or any part thereof by legal process, summary proceedings, ejectment or
otherwise, and may remove Lessee and all other persons and any and all property
therefrom. Lessor shall be under no liability for or by reason of any such
entry, repossession or removal.
26. Reletting. At any time or from time to time after the
repossession of the Property or any part thereof pursuant to Section 25 hereof,
whether or not the term of this Lease shall have been terminated pursuant to
Section 24 hereof, Lessor may (but shall be under no obligation to) relet the
Property or any part thereof for the account of Lessee, in the name of Lessee or
Lessor or otherwise, for such term or terms (which may be greater or less than
the period that would otherwise have constituted the balance of the term of this
Lease) and on such conditions (which may include rent concessions or free rent)
and for such uses as Lessor, in its reasonable discretion, may determine, and
may collect and receive the rents therefor. Lessor shall not be responsible or
liable for any failure to relet the Property or any part thereof or for any
failure to collect any rent due upon any such reletting.
27. Damages.
27.1 Termination of Lease Not to Relieve Lessee of
Obligations. No termination of the term of this Lease pursuant to Section 24
thereof, by expiration or by operation of law or otherwise, and no repossession
of the Property or any part thereof pursuant to Section 25 hereof or otherwise,
and, except as provided in Section 27.2 hereof, no reletting of the Property
pursuant to Section 26 hereof or otherwise, shall relieve Lessee of its
liabilities and obligations hereunder, all of which shall survive such
expiration, termination, repossession or reletting.
27.2 Current Damages. In the event of any such termination,
repossession or reletting Lessee will pay to Lessor the Basic Rent and all
Additional rent and other sums required to be paid by Lessee up to the time of
such termination, repossession or reletting, and thereafter Lessee, for what
would have been the remaining term of this Lease and, whether or not the
Property or any part thereof shall have been relet, shall be lia-
24
ble to Lessor for and shall pay to Lessor, as liquidated and agreed current
damages for Lessee's default, (a) the Basic Rent and all Additional Rent and
other sums that would be payable under this Lease by Lessee in the absence of
such termination or repossession, plus (b) all reasonable expenses incurred by
Lessor in connection with such termination and repossession and any reletting
effected for the account of Lessee pursuant to Section 26 hereof (including,
without limitation, all repossession costs, brokerage commissions, legal
expenses, attorneys' fees, employees' expenses, alteration costs and expenses of
preparing for such reletting), less (c) the proceeds, if any, of such reletting.
Lessee will pay such current damages on the days on which the Basic Rent would
have been payable under this Lease in the absence of such termination,
repossession or reletting and Lessor shall be entitled to recover the same from
Lessee on each such day.
27.3 Final Damages. At any time after any such termination or
repossession, whether or not Lessor shall have collected any current damages as
aforesaid, Lessor shall be entitled to recover from Lessee and Lessee will pay
to Lessor on demand, as and for liquidated and agreed final damages for Lessee's
default and in lieu of all current damages beyond the date of such demand, an
amount equal to the excess of (i) all past due Basic Rent and Additional Rent
plus the present value of all Basic Rent and Additional Rent that would be
payable under this Lease from the date of such demand (or, if it be earlier, the
date to which Lessee shall have satisfied in full its obligations under Section
27.3 hereof to pay current damages) for what would have been the unexpired term
of this Lease in the absence of such termination, repossession or reletting,
over (ii) the present value of the fair market rental for the Property at the
date of such demand for what would have been the unexpired term of this Lease in
the absence of such termination, repossession or reletting, which present value
shall in each case be determined by the application of the discount factor of
the Federal Reserve Bank of New York at the time of the demand plus one (1%)
percent. If any statute or rule of law shall validly limit the amount of such
liquidated final damages to less than the amount above agreed upon, Lessor shall
be entitled to the maximum amount allowable under such statute or rule of law.
28. Default by Lessor. If Lessor shall default in the performance or
observance of any agreement or condition in this Lease contained on its part to
be performed or observed or shall default in the payment of any tax or other
charge which is a lien upon the Property or in the payment of any installment of
principal or interest upon any mortgage which shall be prior in lien to the lien
of this Lease and if Lessor shall not cure such default within thirty (30) days
after notice from Lessee specifying the default (or if such default cannot
reasonably be cured within such thirty-day (30) period, then shall not within
said thirty-day (30) period commence to cure such default and thereafter
prosecute the curing of such default to completion with due dili-
25
gence), Lessee may; at its option, without waiving any claim for damages or
breach of agreement, at any time thereafter cure such default for the account of
Lessor, and any amount paid or any contractual liability incurred by Lessee in
so doing shall be deemed paid or incurred for the account of the Lessor, and
Lessor agrees to reimburse Lessee therefor; provided that Lessee may cure any
such default for the account of Lessor, as aforesaid, prior to the expiration of
said thirty-day (30) period, but after said notice to Lessor, if the curing of
such default prior to the expiration of said thirty-day (30) period is
reasonably necessary to protect the Property or Lessee's interest therein, or to
prevent a governmental fine, or to prevent injury or damage to persons or
property or to permit Lessee to conduct its usual business operations in the
Property. If Lessor shall fail to reimburse Lessee within thirty (30) days after
notice for any amount paid for the account of Lessor hereunder, said amount may
be deducted by Lessee from the next or any succeeding payments of rent due
hereunder or any other amounts due from Lessee to Lessor.
29. Lessee's Waiver of Statutory Rights. In the event of any
termination of the term of this Lease pursuant to Section 24 hereof or any
repossession of the Property or any part thereof pursuant to Section 25
hereof, Lessee, so far as permitted by law, waives (a) any right to a trial by
jury in any proceeding or any matter in any way connected with this Lease, (b)
any right of redemption, reentry or repossession, (c) the benefits of any laws
now or hereafter in force exempting property from liability for rent or for
debt, (d) the service of any notice of intention to reenter or to institute
legal proceedings to that end otherwise required to be given under any present
or future law, and (e) the rights under any present or future law to redeem the
Property or to reenter or repossess the Property or to restore the operation of
this Lease.
30. No Waiver. Failure of either party to complain of any act or
omission on the part of the other party, no matter how long the same may
continue, shall not be deemed to be a waiver by said party of any of its rights
hereunder. No waiver by either party at any time, express or implied, of any
breach of any provision of this Lease shall be deemed a waiver of a breach of
any other provision of this Lease or a consent to any subsequent breach of the
same or any other provision. If any action by either party shall require the
consent or approval of the other party, the other party's consent to or approval
of such action on any one occasion shall not be deemed a consent to or approval
of said action on any other action on the same or any subsequent occasion.
31. Remedies Cumulative. Each right, power and remedy of each party
provided for in this Lease or now or hereafter existing at law or in equity or
by statute or otherwise shall be cumulative and concurrent and shall be in
addition to every other right, power or remedy provided for in this Lease or now
or hereafter existing at law or in equity or by statute or otherwise,
26
and the exercise or attempted exercise by each party of any one or more of the
rights, powers or remedies provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by each party of any or all such other rights,
powers or remedies.
32. Modification, Acceptance of Surrender. No modification,
termination or surrender to Lessor of this Lease and no surrender of the
Property or any part thereof or of any interest therein shall be valid or
effective unless agreed to and accepted in writing by Lessor, and no act by any
representative or agent of Lessor, and no act by Lessor, other than such a
written agreement and acceptance by Lessor, shall constitute an agreement
thereto or acceptance thereof.
33. No Merger of Title. There shall be no merger of this Lease nor
of the leasehold estate created by this Lease with the fee estate by reason of
the fact that the same Person may acquire, own or hold, directly or indirectly,
(a) this Lease or the leasehold estate created by this Lease or any interest in
this Lease or in any such leasehold estate, and (b) the fee estate or any other
leasehold estate in the Property or any part thereof or any interest in such fee
estate or leasehold estate, and no such merger shall occur unless and until
every Person having any interest in (i) this Lease or the leasehold or
subleasehold estate created by this Lease, and (ii) the fee estate or any other
leasehold or subleasehold estate in the Property or any part thereof shall join
in a written instrument effecting such merger and shall duly record the same.
34. Option to Extend.
34.1 Extension. Provided that an Event of Default is not
continuing at the time the extension notice is given and at the termination date
of the then current Fixed Term or Extended Term, Lessee named on the first page
of this Lease, shall have the right, at its election, to extend the Fixed Term
for an additional five-year period, commencing upon the expiration of the Fixed
Term. Upon the expiration of such extended period, the Lessee named on the first
page of this Lease shall have the right, at its election, to extend this Lease
for a second five-year period, commencing upon the expiration of the
first-extended period. Each of such five-year extensions shall be referred to
herein as an "Extended Term." To exercise either extension right, Lessee shall
give Lessor notice before the later to occur of (a) the date fifteen (15)
months before the termination date of the then-current Fixed Term or Extended
Term and (b) thirty (30) days after Lessor shall have delivered to Lessee a
notice advising Lessee of the current extension option. Prior to the exercise by
Lessee of said election under this paragraph to extend the Fixed Term, the
expression "the term of this Lease" when used herein shall mean the Fixed Term,
and, following the exercise by Lessee of any election to extend the term, the
expression
27
"the term of this Lease" when used herein shall mean the final day of the
respective Extended Term. Except as expressly otherwise provided in this Lease,
all the agreements and conditions contained in this Lease shall apply to the
Extended Term(s). If Lessee named herein shall give notice of the exercise of
its election(s) under this paragraph in the manner and within the time provided
aforesaid, and further provided that no Event of Default has occurred and is
continuing on the termination date of the then-current Fixed Term or Extended
Term, the term shall be extended without the requirement of any action on the
part of Lessor.
34.2 Rent During the Extended Term. During any Extended Term,
Lessee shall pay the Basic Rent in an amount per year equal to the annual fair
market rental value of the Property, as such fair market rental value is
determined pursuant to Section 34.3 below. Lessee shall have the right to revoke
its exercise of any option to extend by giving notice to such effect to Lessor
within (30) days after Lessor has delivered Lessor'se Fair Market Rental Value
Estimate to Lessee. In addition during the Extended Term, Lessee shall continue
to pay all Additional Rent and other sums payable hereunder through the
Termination Date.
34.3 Determination of Fair Market Rental Value. For purposes
of Section 34.2 hereof the Basic Rent shall be adjusted to an amount equal to
the fair market rental value of the Property. Such fair market rental value
shall be determined as follows:
(i) No later than thirty (30) days after the date Lessee
gives to Lessor notice of the exercise of its election to extend the term of
this Lease ("Lessee's Election Date"), Lessor shall notify Lessee in writing of
Lessor's good faith estimate of such fair market rental value ("Fair Market
Rental Value Estimate"). If Lessor fails to deliver Lessor's Fair Market Rental
Value Estimate within said period, then: (a) Lessor shall deliver Lessor's Fair
Market Rental Value Estimate as promptly as possible after the expiration of
said period; (b) for each day by which Lessor's notice is delayed beyond said
period, the effective date of the applicable rent adjustment under this Lease
shall be delayed, and during such period of delay the Basic Rent shall continue
at the same level as before such adjustment date; and (c) except as described in
clause "b", such failure or delay shall not adversely affect either party's
rights under this Lease.
(ii) Lessee may dispute Lessor's Fair Market Rental
Value Estimate by giving written notice to Lessor (the "Dispute Notice") within
thirty (30) days after Lessor has delivered Lessor's Fair Market Rental Value
Estimate to Lessee. If Lessee should fail to revoke its exercise of the option
to extend the term or to give a Dispute Notice within such 30-day period, the
Rent stated in Lessor's Fair Market Rental Value Estimate shall be the Basic
Rent for the Extend Term.
28
(iii) Enclosed with the Dispute Notice, Lessee shall
furnish to Lessor its good faith estimate of the fair market rental value of the
Property. For all purposes of this Section 34.3, "fair market rental value of
the Property" shall mean the prevailing actual price [fixed rent for five (5)
years] that a willing lessee would pay a willing lessor for space of a size
similar to the Property, located in the same general neighborhood as the
Property, for a five-year lease commencing on the day next following the
termination date of the then-current Fixed Term or Extended Term and otherwise
on the terms and conditions of the Lease (including pass-throughs), on the
assumption that the Property was delivered to the hypothetical lessee in its
then-current condition.
(iv) If Lessee and Lessor are unable to resolve any
disputes as to the fair market rental value for the Property within thirty (30)
days following the date Lessee gave Lessor its estimate of the fair market
rental value of the Property, then Lessor and Lessee shall each select at their
own cost and expense an Independent appraiser who shall be an M.A.I. appraiser
with at least five (5) years' experience in the Long Island warehousing and
light industrial real estate market. The two appraisers shall attempt to
determine fair market rental value within twenty (20) days after being selected.
If they cannot, then the two shall within ten (10) days choose a third appraiser
having the same qualifications. Lessor and Lessee shall each pay one-half of the
costs and fees charged by any third appraiser. If the two appraisers cannot
agree on the third within ten (10) days, then Lessor or Lessee shall request the
chairman, president or manager of the nearest office of the American Arbitration
Association to provide a list of five (5) appraisers with the qualifications
described. If Lessor and Lessee and their appraisers cannot agree upon the third
appraiser to be chosen from such list, then the third appraiser shall be
whichever appraiser was listed first by the American Arbitration Association.
Lessor's appraiser and Lessee's appraiser shall select a figure which is their
best estimate of the fair market rental value within fifteen (15) days after
selection of the third appraiser. The third appraiser shall select whichever of
such two figures he believes best reflects fair market rental value within
fifteen (15) days after the first two appraisers have made their estimates. Such
determination, made by the third appraiser, shall be deemed to be the fair
market rental value of the Property. The decision of the appraisers shall be
conclusive and binding upon the parties.
35. End of Lease Term.
Upon the expiration or earlier termination of this Lease,
Lessee, at its expense, shall quit and surrender to Lessor the Property in good
order and condition, subject to ordinary wear and tear. Lessee shall be entitled
to remove any of ▇▇▇-
▇▇
see's Equipment or to leave any of such Equipment on the Property.
36. Notices, Etc. All notices, consents, demands and requests
(collectively "Notices" and individually, a "Notice") which are required or
desired to be given by either party to the other shall be in writing. All
notices by either party to the other shall be sent by United States registered
or certified mail, return receipt requested, postage prepaid, or overnight
courier service, addressed to the other party at its address set forth above, or
personally delivered to such address or at such other single address as it may
from time to time designate in a notice to the other party. Notices which are
served upon Lessor or Lessee in the manner aforesaid shall be deemed to have
been given or served for all purposes hereunder on the date on which such notice
shall have been mailed or personally served as aforesaid.
37. Quiet Enjoyment.
37.1 So long as no Event of Default shall occur and be
continuing, Lessee (and any subtenant of Lessee permitted pursuant to the terms
of this Lease) shall peaceably and quietly have, hold and enjoy the Property for
the term hereof, subject, however, to all the terms of this Lease.
Notwithstanding anything contained in this Lease to the contrary, it is
specifically understood and agreed that Lessor shall not have any personal
liability in respect of any of the terms, covenants, conditions or provisions of
this Lease. Nothing contained in this Section 37 shall prohibit Lessor or any
Mortgagee, or their respective authorized representatives, from entering the
Property at reasonable times to inspect the same.
37.2 The Lessor covenants and agrees with Lessee that Lessor
will comply with the covenants, terms and conditions of any mortgages, security
interests, leases or installment sales contracts which are now or which may
hereafter, during the term of this Lease, be superior to this Lease. The
covenant in this paragraph shall be construed as running with the land to and
against subsequent owners and successors in interest and is not, nor shall it
operate or be construed, as a personal covenant of Lessor, except to the extent
of the Lessor's interest in the Property and only so long as such interest shall
continue, and, thereafter, this covenant shall be binding only upon such
subsequent owners and successors in interest of Lessor's interest under this
Lease, to the extent of their respective interest, as and when they shall
acquire the same, and only so long as they shall retain such interest.
38. Limitation of Liability of Lessor. Notwithstanding anything to
the contrary provided in this Lease, it is specifically understood and agreed
that there shall be absolutely no personal liability on the part of Lessor or
any successor in interest of Lessor, or any partner, stockholder, officer,
director
30
or trustee of Lessor or any successor in interest of Lessor, with respect to any
of the terms, covenants, and conditions of this Lease, and that Lessee and any
persons claiming by, through or under Lessee shall look solely to the interest
of Lessor or such successor in the Property or the leasehold state of Lessor or
such successor in the Property for the satisfaction of each and every remedy of
Lessee or such person in the event of any breach by Lessor or by such successor
in interest of any of the terms, covenants and conditions of this Lease to be
performed by Lessor, such exculpation of personal liability to be absolute and
without any exception whatsoever.
39. Miscellaneous. All rights, powers and remedies provided herein
may be exercised only to the extent that the exercise thereof does not violate
any applicable provision of law, and are intended to be limited to the extent
necessary so that they will not render this Lease invalid, illegal or
unenforceable under the provisions of any applicable law. If any term of this
Lease or any application thereof shall be invalid or unenforceable, the
remainder of this Lease and any other application of such term shall not be
affected thereby. This Lease may be changed, waived, discharged or terminated
only by an instrument in writing, signed by each of the parties hereto. Subject
to Section 23 hereof, this Lease shall be binding upon and inure to the benefit
of and be enforceable by the respective successors and assigns of the parties
hereto. This Lease shall be construed and enforced in accordance with and
governed by the laws of the State of New York. The headings in this Lease are
for purposes of reference only and shall not limit or otherwise affect the
meaning hereof. This Lease may be executed in several counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument. The terms, covenants, provisions and conditions of the Old
Lease are amended, modified, and superceded in their entirety by the terms,
covenants, provisions and conditions of this Lease.
40. Unavoidable Delays. In the event of any Unavoidable Delays (as
that term is defined in Section 43) under this Lease, the time of performance of
the covenants and obligations under this Lease in question (which shall in no
event include any requirement for the payment of a sum of money) shall
automatically be extended for a period of time equal to the aggregate period of
the Unavoidable Delays.
41. Consent. Wherever this Lease provided that the consent of either
party shall not be unreasonably withheld, the giving of such consent shall also
not be unreasonably delayed.
42. Rights of ▇▇▇▇▇▇ Funds.
42.1 Notices. Lessor shall give to Senior Lending Associates
I, L.P. and Mezzanine Lending Associates II, L.P. (herein collectively, the
"▇▇▇▇▇▇ Funds") a copy of each notice required to be given to Lessee hereunder
at the same time and in
31
the same manner as said notice is required to be given to Lessee, and no such
notice shall be deemed effective unless and until it is given to ▇▇▇▇▇▇ Funds in
accordance with Section 36 hereof. Any notice to the ▇▇▇▇▇▇ Funds shall be sent
to each ▇▇▇▇▇▇ Fund, c/o Butler Capital Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, with a copy to Ropes &
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention, ▇. ▇▇▇▇▇▇▇▇
Malt, Esq.
42.2 Notice of an Event of Default. Lessor shall give to the
▇▇▇▇▇▇ Funds a copy of each notice of the occurrence of an Event of Default at
the same time and in the same manner it is required to give notice of such Event
or Default to Lessee, and no such notice of an Event of Default to Lessee, and
no such notice of an Event of Default shall be deemed effective unless and until
it is given to the ▇▇▇▇▇▇ Funds.
42.3 Right to Cure Lessee's Default. If any Default occurs, as
provided in Section 24 hereof, then upon receipt of notice thereof by the ▇▇▇▇▇▇
Funds, the ▇▇▇▇▇▇ Funds shall be entitled to (i) cure such Default within
fifteen (15) days in the case of a Default in the payment of a sum of money or
(ii) cure such Default or take action designed to cure such Default within
thirty (30) days in the case of any other Default, provided that the period
within which such failure may be cured shall be extended for a further period as
shall be necessary for the curing thereof with diligence, but in no event for a
period extending beyond one hundred eighty (180) days after written notice from
Lessor to the ▇▇▇▇▇▇ Funds of such Default.
42.4 No Termination, Amendment or Waiver. No termination,
except termination pursuant to Section 24 of this Lease, or amendment of this
Lease, and no waiver by Lessee of any right, power or remedy arising from a
breach of this Lease by Lessor, shall be effective unless the ▇▇▇▇▇▇ Funds shall
have given expressly in writing their consent to such termination, amendment or
waiver.
42.5 Acceptance of Performance. Subject to the provisions of
Section 23.1 hereof, Lessor shall accept performance by the ▇▇▇▇▇▇ Funds of any
covenant, condition or agreement on Lessee's part to be performed hereunder with
the same force and effect as though performed by Lessee.
42.6 Applicability. This Section 42 (and subsections 42.1
through 42.5 inclusive) shall only apply for such time or times during the
term of this Lease that the Lessee or the Lessee's parent corporation is
affiliated with or under the control of the ▇▇▇▇▇▇ Funds or affiliates of the
▇▇▇▇▇▇ Funds.
43. Definitions. As used in this Lease, the following terms shall
have the following respective meanings, applicable both to the singular and
plural forms of the terms so defined:
32
Additional Rent: the meaning specified in Section 4 hereof.
Basic Rent: the meaning specified in Section 3 hereof and shall include
CPI Rent computed in accordance with Schedule C attached hereto.
Business Day: any day other than a day on which banking institutions in
the State of New York are authorized by law to close.
Date hereof or date hereof: means the Commencement Date.
Depository: shall mean a bank or trust company with a capital and surplus
of at least $100,000,000, having its principal office in the State of New
York, selected by Lessee and approved by Lessor, which approval shall not
be unreasonably withheld. All fees and expenses of any Depository
(including attorneys' fees) shall be borne by Lessee.
Event of Default: the meaning specified in Section 24 hereof.
Extended Term: the meaning specified in Section 34 hereof.
Fixed Term: the meaning specified in Section 1 hereof.
Improvements: the meaning specified in Section 1 hereof.
Indemnified Party: the meaning specified in Section 12 hereof.
Insurance Requirements: all terms of any insurance policy required to be
maintained hereunder covering Lessee or covering or applicable to the
Property or any part thereof, all requirements of the issuer of any such
policy, and all orders, rules, regulations and other requirements of the
National Board of Fire Underwriters (or any other body exercising similar
functions) applicable to or affecting the property or any part thereof or
any use or condition of the Property or any part thereof.
Land: the meaning specified in Section 1 hereof.
Legal Requirements: all laws, statutes, codes, acts, ordinances, orders,
judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, directions and requirements of all governments,
departments, commissions, boards, courts, authorities (including, without
limitation, environmental protection, plan-
33
ning and zoning authorities), agencies (and other governmental or
quasigovernmental units, whether Federal, state, county, district,
municipal, city or other), and any officials and officers thereof,
foreseen or unforeseen, ordinary or extraordinary, which now or at any
time hereafter may be applicable to Lessee with respect to the Property or
to the Property or any part thereof (including any which may apply to the
repair, use or maintenance of the Property or any part thereof), or any of
the adjoining sidewalks, curbs, vaults and vault space, if any, streets or
ways, or any use or condition of the Property or any part thereof.
Lessee: the person named as Lessee herein and, from and after any sale,
assignment or other transfer of Lessee's interest in this Lease permitted
pursuant to the provisions hereof, Lessee shall mean the owner at the time
in question of Lessee's interest under this Lease.
Lessee's Equipment: the meaning specified in Section 9.1 hereof.
Lessor: the owner in fee simple of the Property, so that, in the event of
any transfer of the Lessor' 5 entire interest in the Property, the
transferor, grantor or assignor as the case may be, shall be and hereby is
entirely relieved and freed of all of its obligations hereunder, and it
shall be deemed without further agreement between the parties that such
grantee, transferee or assignee has assumed and agreed to perform and
observe all obligations of the transferor, grantor or assignor hereunder
whether then accrued or thereafter accruing.
Mortgage: any mortgage granted from time to time in compliance with the
provisions of Section 23 which are now liens on the fee title to the
Property as the same may be renewed, modified, extended, consolidated and
replaced, from time to time, provided that such renewals, modifications,
extensions, consolidations and replacements have been made in accordance
with and comply with the provisions of Section 23; each of the Mortgages
is herein sometimes called a Mortgage and each of the holders thereof is
herein sometimes called the "Mortgagee" and collectively the "Mortgagees."
Officers' Certificate: with respect to any corporation other than a bank
or trust company, a certificate signed by the President or a Vice
President and by the Treasurer, Comptroller, Assistant Treasurer or
Assistant Comptroller of such corporation and, with respect to any bank or
trust company, a certificate signed by any officer thereof.
34
Person: a corporation, an association, a partnership, an organization, a
trust, an individual, a government or political subdivision thereof or a
governmental agency.
Property: the meaning specified in Section 1 hereof.
Responsible Officer: the chairman or vice chairman of the board of
directors or of any committee thereof, the president, the chief executive
officer, or any vice president (whether or not designated by a word or a
number of words added before or after the title "vice president"), the
treasurer, the secretary or the general counsel of Lessee, or any other
officer of Lessee now or hereafter customarily performing functions
similar to those performed by any of the above designated officers and, in
addition. when used with respect to any particular subject matter, any
other officer of Lessee to whom such matter is referred because of such
officer's knowledge of and particular familiarity with such subject
matter.
Restoration: in case of damage to or destruction or Taking of the Property
(or any of the Improvements located thereon), the restoration, replacement
or rebuilding of such Property (or such Improvements) as nearly as
possible to its value, condition and character immediately prior to such
damage. destruction or Taking, with such alterations and additions as may
be made at Lessee's election pursuant to and subject to the conditions of
Section 8 hereof, together with any temporary repairs and property
protection which may be required pending completion of such work.
Taking: a temporary or permanent taking by a government or political
subdivision thereof or by a governmental agency or an authority or entity
authorized to utilize powers similar to condemnation or eminent domain
during the term hereof of all or any part of the Property, or any interest
therein or right accruing thereto, as the result of or in lieu of or in
anticipation of the exercise of the right of condemnation or eminent
domain, or a change of grade affecting the Property or any part thereof.
Such a taking shall be deemed to have occurred on the date on which Lessee
shall be legally required to relinquish possession of the Property.
Taxes: the meaning specified in Section 14 hereof.
The Term (or term) of this Lease: the meanings specified in Section 34.1
hereof.
35
Termination Date: the tenth anniversary of the last day of the month in
which the Commencement Date occurs, unless sooner terminated as expressly
provided in this Lease. However, if the term of this Lease is extended by
Lessee's effective exercise of Lessee's right to extend the term, pursuant
to the provisions of Section 34 of this Lease, then the Termination Date
shall be changed to the last day of the then-current Extended Term (as
defined in Section 34), unless the then-current Extended Term is sooner
terminated as expressly provided in this Lease.
Total Destruction: the meaning specified in Section 19.3 hereof.
Total Taking: the meaning specified in Section 20.3 hereof.
Unavoidable Delays: delays due to acts of God, governmental restrictions,
enemy actions, civil commotion, fire, unavoidable casualty, strikes,
shortages of supplies or other causes beyond the control of the party
required to perform, but lack of funds shall not be deemed a cause beyond
the control of any party hereto.
Various other words or terms which are defined in other Sections of this Lease
shall have the meanings specified in such Sections for all purposes of this
Lease, unless the context otherwise requires.
44. Broker. Lessee and Lessor each represents and warrants to the
other that it is not had any dealing with any realtors, brokers or agents in
connection with the negotiation of this Lease and agrees to pay, and to hold the
other harmless from any cost, expense or liability for any compensation,
commission or charges claimed by any realtors, broker, or agents with whom it
has dealt with in respect to this Lease and/or the negotiation hereof.
45. Right of First Refusal. Provided that an Event of Default is not
continuing, the original Lessee named herein shall have the right of first
refusal to purchase the Property as hereinafter provided. If at any time during
the Fixed Term or any Extended Term of this Lease Lessor shall desire to sell
Lessor's fee simple interest in the Property to a person or entity other than
the Lessee, Lessor shall deliver to the Lessee a written summary of all of the
material terms of the proposed sale transaction (the "Term Sheet") with such
person or entity accompanied by Lessor's offer to sell to the Lessee the
Property under the same terms and conditions contained in the Term Sheet
("Lessor's Offer"). The Lessee will have a period of thirty (30) days after
Lessee has received a copy of the Term Sheet and Lessor's Offer in which to
accept, by written notice to the Lessor, Lessor's Offer. If Lessee elects to
accept Lessor's Offer, Lessee shall
36
give notice of its acceptance to the Lessor within such 30-day period and will
close on the transaction at the office of the Lessor on a mutually acceptable
date which date shall not be less than sixty (60) days no more than ninety (90)
days after the Lessor and Lessee have entered into a formal contract in respect
to the sale of the Property substantially on the terms set forth in the Term
Sheet and Lessor and Lessee agree to negotiate in good faith and to enter into
such contract within thirty (30) days after Lessor has received Lessee's written
notice of acceptance of Lessor's Offer. If Lessee has not accepted Lessor's
Offer within such 30-day period, Lessor's Offer shall be deemed to be declined
as to that particular transaction only and Lessor will be free to sell the
Property to the third party identified in the Term Sheet at a price and upon
terms and conditions not less favorable to the Lessor than those set forth in
the Term Sheet; provided, however, if the terms of the transaction are modified
at any time after the Lessee has declined or is deemed to have declined the
transaction, then the modified transaction must be resubmitted to the Lessee and
the Lessee's right of first refusal will be applicable to the modified
transaction. The right of first refusal shall not apply to a Taking. See Rider
on page 37-A attached hereto and made a part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be duly
executed as of the date first set forth above.
LESSOR:
A & C REALTY
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
ATTEST: LESSEE:
ARCON ▇▇▇▇▇, INC.
[Illegible] By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------- ----------------------------------
President
37
RIDER TO SECTION 45
Notwithstanding anything to the contrary or otherwise contained in this Section
45, the right of first refusal shall not apply to any transfer or proposed
transfer of the Property to Members of the Immediate Family of Lessor. "Members
of the Immediate Family" shall mean, with respect to any individual, each
spouse, parent, brother, sister or child of such individual, each spouse of any
such Person, each child of any spouse, brother, sister or child, each trust
created solely for the benefit of one or more of such Persons and each custodian
or guardian of the property of one or more such Persons (in such Person's
capacity as such custodian or guardian).
37-A
SCHEDULE A
ALL that certain plot, piece or parcel of land, situate, lying and being at
Oceanside, in the Town of Hempstead, County of Nassau and State of New York,
bounded and described as follows:
BEGINNING at a point on the southeasterly side of New Street, distant 207.75
feet northerly and easterly as measured along the southeasterly and southerly
side of New Street from the corner formed by the intersection of said
southeasterly side of New Street with the easterly side of ▇▇▇▇▇▇▇▇▇▇ Road
and from said point of beginning;
RUNNING THENCE South 4 degrees 53 minutes West a distance of 100.00 feet;
THENCE South 85 degrees 07 minutes East a distance of 386.76 feet;
THENCE North 14 degrees 38 minutes East, a distance of 116.68 feet;
THENCE North 85 degrees 07 minutes West, a distance of 404.00 feet to the
southeasterly side of New Street; and
RUNNING THENCE along the southeasterly side of New Street South 14 degrees 25
minutes 30 seconds West, a distance of 15.21 feet to the point or place of
BEGINNING.
TOGETHER with an easement over the most southerly 11.5 feet, more or less, of
the premises adjoining the above described premiss on the north for ingress and
egress to and from New Street and the above described premises.
EXHIBIT A
Certificate of Occupancy No. 116866, dated May 25, 1972, issued by the
Department of Buildings, Town of Hempstead for the Improvements.
Schedule B
Title Exceptions
1. Declaration of Easement dated May 8, 1972 made by Point-Set Indoor
Racquet Club, Inc. and recorded in the office of the Nassau County Clerk in
Liber 8392, Page 246.
2. Real Estate Taxes of the Town of Hempstead and the County of Nassau and
any other taxes and assessments imposed by other taxing authorities for the year
1988 and years subsequent thereto.
3. The state of facts shown on a survey of the Property made by ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ dated May 21, 1988.
4. The matters set forth in the Certificate of Title No. 460-N-4070 (PLTS
66561-N) issued by First American Title Insurance Company of New York dated
January 15, 1988 and redated to June 1, 1988.
SCHEDULE C
BASIC RENT SCHEDULE
Lessee covenants and agrees to pay to Lessor Basic Rent for the Property
during the Fixed Term of this Lease in the annual amount of One Hundred Eighty-
Six Thousand ($186,000) Dollars, in twelve (12) monthly installments of Fifteen
Thousand Five Hundred ($15,500) Dollars, subject to the CPI Increases set forth
hereinbelow.
Lessee covenants and agrees to pay to Lessor Basic Rent for the Property
during any Extended Term of this Lease in an amount per year to be determined
pursuant to Section 34.3 of this Lease, subject to the CPI Increases set forth
hereinbelow.
Basic Rent payable during the Fixed Term and any Extended Term of this
Lease shall be subject to the CPI Increase computed as follows. On each
Anniversary Date (as hereinafter defined) the Basic Rent as of the Lease Date
shall be increased by an amount equal to the CPI Increase (as herein defined)
for such Anniversary Date, which increased Basic Rent shall be payable in equal
monthly installments in advance on the first day of each month commencing on the
first day of the month following the date on which the Lessor has submitted a
statement to Lessee setting forth any CPI Increase in the Basic Rent that may be
due, and the first such payment shall include any increases due pursuant to this
paragraph for any month or months between the Anniversary Date and the date of
Lessor's statement. In no event shall the calculations referred to in this
paragraph serve to reduce the Basic Rent below the Basic Rent payable on the day
prior to the Anniversary Date. Within ten days after any written request of
Lessor, Lessee will enter into a modification of this Lease with Lessor, setting
forth the new Basic Rent as increased by the CPI Increase and the date it
commences pursuant to the provisions of this paragraph. The term "Basic Rent"
shall be deemed to include the CPI Increase, when applicable.
"Consumer Price Index" shall mean the Consumer Price Index for All Urban
Consumers (CPI-U), New York, New York/Northeastern New Jersey, all items, now
issued by the Bureau of Labor Statistics (the "BLS") of the United States
Department of Labor. In the event that the Consumer Price Index is not
available, the successor or substitute index published by the BLS shall be used
for the computations herein set forth. In the event that the Consumer Price
Index or such successor or substitute index is not published, a reliable
governmental or other non-partisan publication evaluating the information
theretofore used in determining the Consumer Price Index shall be used for the
computations herein set forth.
"Lease Date" shall mean the date of this Lease, except during any Extended
Term for which Basic Rent has been determined pursuant to Section 34.3 of this
Lease, it shall mean the first day of such Extended Term.
"Anniversary Date". shall mean the second anniversary of the Commencment
Date and each biennial anniversary thereafter during the Fixed Term and the
Extended Term, if any.
"CPI Increase shall mean an amount equal to the product of (i) a fraction,
the numerator of which is the difference between the Consumer Price Index for
the first day of the month immediately preceding the Anniversary Date as to
which the computation is made and the Consumer Price Index for the Lease Date,
and the denominator of which is the Consumer Price Index for the Lease Date,
multiplied by (ii) the annual Basic Rent as of the Lease Date.
OCCUPANCY CERTIFICATE Date ▇/▇▇/▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇. Fee $ No Fee
THIS CERTIFIES that the building located on ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇
▇▇▇ p/of 105 ZONE Bus
Location S/E/ of New St. & ▇▇▇▇▇▇ Road Oceanside, N.Y.
authorized by Building Permit No. 7003861 Dated 12/18/1970
with a declared construction cost of $152,000.00 conforms substantially to the
requirements of the Building Zone Ordinance and Building Code of the Town of
Hempstead, New York, as applying to buildings of its class and kind.
Permitted Occupancy Industrial and Commercial use
This certificate issued to Oceanside Gardens
Owner of the aforesaid building
Address ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. Lawrence
Official House Number New Street
DEPARTMENT OF BUILDINGS
Town of Hempstead, N.Y.
No. 116866 /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Commissioner
SUBJECT TO CONDITIONS, IF ANY, AS LISTED ON REVERSE SIDE HEREOF