UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): MAY 10, 2006
LIFETIME BRANDS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation)
0-19254 11-2682486
(Commission File Number) (IRS Employer Identification No.)
ONE MERRICK AVENUE, WESTBURY, NEW YORK, 11590
(Address of Principal Executive Offices)(Zip Code)
(Registrant's Telephone Number, Including Area Code) 516-683-6000
(Former Name or Former Address, if Changed Since Last Report) N/A
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
|_| Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
On May 10, 2006, Lifetime Brands, Inc. (the "Company") entered into a 15-year
lease agreement (the "Lease Agreement") for approximately 114,000 square feet of
office and warehouse space located in The Business and Research Center at Garden
City located at 1000 Stewart Avenue in Garden City, New York ("1000 Stewart
Avenue"). The location will serve as the Company's new corporate headquarters.
Annual rent will be approximately $1.9 million with annual escalations of 2.625%
per year, plus additional rent to cover real estate taxes. Occupancy is
anticipated to be in December 2006. The Company currently owns and occupies a
building at One Merrick Avenue, Westbury, New York with total square footage of
approximately 47,000 square feet ("One Merrick Avenue"). The Company has not yet
made a decision with respect to its future plans for One Merrick Avenue. The
increased office space is needed due to the significant growth of the Company's
business, including the July 2005 acquisition of the business and certain assets
of The Pfaltzgraff Co. and the April 2006 acquisition of the business and
certain assets of Syratech Corporation. The move to 1000 Stewart Avenue will not
affect the Company's current distribution facilities.
The information provided in this Item 1.01 is qualified in its entirety by
reference to the terms and conditions of the Lease Agreement, a copy of which is
attached hereto as Exhibit 99.1 and is incorporated herein by reference.
The information herein contains certain forward-looking statements including
statements concerning the Company's future prospects. These statements involve
risks and uncertainties, including risks relating to general economic conditions
and risks relating to the Company's operations, such as the risk of loss of
major customers and risks relating to changes in demand for the Company's
products, as detailed from time to time in the Company's filings with the
Securities and Exchange Commission.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
99.1 Lease Agreement dated as of May 10, 2006 between AG
Metropolitan Endo, L.L.C and Lifetime Brands, Inc. for the
property located at 1000 Stewart Avenue in Garden City, New
York.
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Lifetime Brands, Inc.
By: /s/ Robert McNally
------------------
Robert McNally
Vice President of Finance and
Chief Financial Officer
Date: May 15, 2006
LEASE AGREEMENT
LANDLORD:
AG METROPOLITAN ENDO, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
TENANT:
LIFETIME BRANDS, INC.,
A DELAWARE CORPORATION
EXHIBIT 99.1
SUMMARY OF BASIC LEASE INFORMATION AND DEFINITIONS
This SUMMARY OF BASIC LEASE INFORMATION AND DEFINITIONS ("SUMMARY") is
hereby incorporated into and made a part of the attached Lease. All references
in the Lease to the "Lease" shall include this Summary. All references in the
Lease to any term defined in this Summary shall have the meaning set forth in
this Summary for such term. Any initially capitalized terms used in this Summary
and any initially capitalized terms in the Lease which are not otherwise defined
in this Summary shall have the meaning given to such terms in the Lease.
1.1 LANDLORD'S ADDRESS: AG METROPOLITAN ENDO, L.L.C.
c/o Angelo Gordon & Co.
245 Park Avenue, 26th Floor
New York, New York 10167
Attn: Mr. Adam Schwartz
Facsimile: (212) 867-5436
with a copy to: Metropolitan Realty Associates
1000 Stewart Avenue, Suite 120
Garden City, New York 11530
Attn: Mr. Joseph Farkas
Facsimile: (516) 222-2619
with an additional Duval & Stachenfeld LLP
copy to: 300 East 42nd Street
New York, NY 10017
Attn: Terri Adler, Esq.
Facsimile: (212) 883-8883
1 .2 TENANT'S ADDRESS: Lifetime Brands, Inc.
One Merrick Avenue
Westbury, New York 11690-6601
Attn: Ronald Shiftan
Facsimile: 516-683-6116
with a copy to: Nixon Peabody LLP
990 Stewart Avenue
Garden City, NY 11530
Attn: Denise Pursley
Facsimile: (866) 947-2028
1.3 PREMISES: The portion of the building located at Section 44, Block D, Lot
0335 on the Tax Map of Nassau County commonly known as 1000 Stewart Avenue,
Garden City, New York (the "BUILDING") identified as Suites 100, 300, 500 and
600 and the entire 4th floor, including, but not limited to, the separate
entrance and lobby thereto on Stewart Avenue, and the 4th floor roof terrace
("4TH FLOOR ROOF TERRACE"), (all as more particularly shown on Exhibit A-1
annexed hereto), and all improvements thereto (collectively, the "PREMISES").
Suite 100, consisting of 45,301 rentable square feet, is referred to herein
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as the "WAREHOUSE SPACE" and Suites 300, 500 and 600 and the entire 4th floor,
collectively consisting of 69,173 rentable square feet, are collectively
referred to herein as the "OFFICE/RESEARCH SPACE." The Building is a portion of
the project (the "PROJECT") which includes the Building and the office building
located at 500 Endo Boulevard, Garden City, New York, and the Common Areas (as
hereinafter defined), as more particularly shown on Exhibit A-2 annexed hereto,
and any other improvements thereon. Any discrepancies between Exhibits A-1 and
A-2 will be resolved in favor of Exhibit A-1. The parties agree that the
aggregate square footage of the Project is 186,500 rentable square feet.
1.4 COMMENCEMENT DATE: Upon fifteen (15) days after Tenant's receipt of written
notice of (i) substantial completion of Landlord's Work (as defined in Exhibit
B-1 and Tenant's Work (as defined in Exhibit B-2); and (ii) Tenant's receipt of
a temporary or permanent certificate of occupancy/completion for the Premises
(the "COMMENCEMENT DATE"). (Landlord's Work and Tenant's Work are sometimes
hereinafter referred to collectively as the "Work"). The Work shall be deemed
substantially completed notwithstanding the fact that (a) minor or insubstantial
details of construction, mechanical adjustment or decoration remain to be
performed or (b) portions of the Work have not been completed because, among
other reasons, under good construction scheduling practice such work should be
done after still uncompleted finishing or other work to be done by or on behalf
of Tenant is completed; provided, however, that Tenant shall be able to conduct
its business in the Premises notwithstanding such uncompleted Work items. In
addition, the date Work shall be deemed substantially completed shall be
accelerated one day for each day of Tenant Delay (as defined in Exhibit B-1).
1.5 LEASE EXPIRATION DATE: The Fifteenth Lease Year (as hereinafter defined).
1.6 ANNUAL AND MONTHLY RENT:
WAREHOUSE SPACE
YEAR DURING TERM ANNUAL RENT MONTHLY RENT
---------------- ----------- ------------
First Lease Year $441,684.75 $36,807.06
Second Lease Year $453,278.97 $37,773.25
Third Lease Year $465,290.87 $38,774.24
Fourth Lease Year $477,504.75 $39,792.06
Fifth Lease Year $490,039.25 $40,836.60
Sixth Lease Year $502,902.78 $41,908.57
Seventh Lease Year $516,103.98 $43,008.67
Eight Lease Year $529,651.71 $44,137.64
Ninth Lease Year $543,555.07 $45,296.26
Tenth Lease Year $557,823.39 $46,485.28
Eleventh Lease Year $572,466.25 $47,705.52
Twelfth Lease Year $587,493.49 $48,957.79
Thirteenth Lease Year $602,915.19 $50,242.93
Fourteenth Lease Year $618,741.72 $51,561.81
Fifteenth Lease Year $634,983.69 $52,915.31
OFFICE/RESEARCH SPACE
---------------------
YEAR DURING TERM ANNUAL RENT MONTHLY RENT
---------------- ----------- ------------
First Lease Year $1,487,219.50 $123,934.96
Second Lease Year $1,526,259.01 $127,188.25
Third Lease Year $1,566,323.31 $130,526.94
Fourth Lease Year $1,607,439.29 $133,953.27
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YEAR DURING TERM ANNUAL RENT MONTHLY RENT
---------------- ----------- ------------
Fifth Lease Year $1,649,634.58 $137,469.55
Sixth Lease Year $1,692,937.48 $141,078.12
Seventh Lease Year $1,737,377.09 $144,781.42
Eight Lease Year $1,782,983.24 $148,581.94
Ninth Lease Year $1,829,786.55 $152,482.21
Tenth Lease Year $1,877,818.45 $156,484.87
Eleventh Lease Year $1,927,111.18 $160,592.60
Twelfth Lease Year $1,977,697.85 $164,808.15
Thirteenth Lease Year $2,029,612.42 $169,134.37
Fourteenth Lease Year $2,082,889.74 $173,574.15
Fifteenth Lease Year $2,137,565.60 $178,130.47
PREMISES
--------
YEAR DURING TERM ANNUAL RENT MONTHLY RENT
---------------- ----------- ------------
First Lease Year $1,928,904.25 $160,742.02
Second Lease Year $1,979,537.98 $164,961.50
Third Lease Year $2,031,614.18 $169,301.18
Fourth Lease Year $2,084,944.04 $173,745.34
Fifth Lease Year $2,139,673.83 $178,306.15
Sixth Lease Year $2,195,840.26 $182,986.69
Seventh Lease Year $2,253,481.07 $187,790.09
Eight Lease Year $2,312,634.95 $192,719.58
Ninth Lease Year $2,373,341.62 $197,778.47
Tenth Lease Year $2,435,641.84 $202,970.15
Eleventh Lease Year $2,499,577.43 $208,298.12
Twelfth Lease Year $2,565,191.34 $213,765.95
Thirteenth Lease Year $2,632,527.61 $219,377.30
Fourteenth Lease Year $2,701,631.46 $225,135.96
Fifteenth Lease Year $2,772,549.29 $231,045.77
1.7 PERMITTED USE: Subject to the terms herein provided, the Premises shall be
used for any lawful purpose. Landlord acknowledges that Tenant intends to use
the Premises for the following purposes ("TENANT'S INTENDED USE"), although
Tenant reserves the right to change its use as permitted hereunder:
o sample storage, traditional storage, photography studio,
facilities maintenance office
o general and executive offices information technology,
cafeteria, research and development, graphics
o laboratory
Under no circumstances shall Tenant or any of its assigns or sublessees use any
portion of the Premises for the following purposes (each a "PROHIBITED USE"),
and Landlord shall not allow any portion of the Building to be used for any
Prohibited Use: (a) a restaurant, bar or for the sale of food or beverages; (b)
photographic reproductions (except as to Tenant's products, as opposed to a
photography studio serving third parties) and/or offset printing; (c) an
employment or travel agency; (d) a school or classroom; (e) medical or
psychiatric offices; (f) conduct of an auction; (g) gambling activities; (h)
conduct of obscene, pornographic or other disreputable activities; (i) offices
of an agency, department or
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bureau of the United States government, any state or municipality within the
United States within the United States or any foreign government, or any
political subdivision of any of them, (j) offices of any charitable, religious,
union or other not-for-profit organization, (k) offices of any tax exempt entity
within the meaning of section 168(h)(2) of the Internal Revenue Code of 1986, as
amended, or any successor or substitute statute, or rule or regulation
applicable thereto; (l) a "boiler room" operation as such term is understood in
the securities business or a financial services business that is not a member of
the New York Stock exchange; (m) a drug, alcohol, abortion or similar clinic; or
(n) any use inconsistent with the first class nature of the Project.
Landlord will reasonably cooperate with Tenant and post office officials so that
"1000 Stewart Avenue" will be exclusively the address of Tenant provided that
street addresses on Stewart Avenue will be available to assign to all other
tenants in the Project.
1.8 INTEREST RATE: The lesser of: (a) the rate announced from time to time by
Citibank, N.A. or, if Citibank, N.A. ceases to exist or ceases to publish such
rate, then the rate announced from time to time by the largest (as measured by
deposits) chartered operating bank operating in New York, as its "prime rate",
`best rate", or "reference rate", plus three percent (3%); or (b) the maximum
rate permitted by law.
1.9 LEASE YEAR: The first "Lease Year" shall be the period commencing on the
Commencement Date and ending on the last day of the month in which shall occur
the one (1) year anniversary thereof. Each subsequent "Lease Year" shall be the
one (1) year period thereafter, except that the last, or fifteenth, "Lease Year"
shall be the last one (1) year and one hundred twenty (120) day period.
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LIST OF EXHIBITS
A-1 Description of Premises
A-2 Description of Project
B-1 Landlord's Base Building Work
B-2 Tenant's Work
C Declaration of Restrictions
D PILOT Agreement
E Signage/Dumpster Diagram
F Cleaning Schedule
G Rules and Regulations
H Subordination, Nondisturbance and Attornment Agent
I Parking Diagram
J IDA Compliance Agreement
v
LEASE
This LEASE ("LEASE"), which includes the preceding Summary of Basic
Lease Information and Definitions ("SUMMARY") attached hereto and incorporated
herein by this reference, is made as of the ____ day of May, 2006, by and
between AG METROPOLITAN ENDO, L.L.C., a Delaware limited liability company
("LANDLORD"), and LIFETIME BRANDS, INC., a Delaware corporation ("TENANT").
1. LEASE OF PREMISES.
1.1 PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises upon and subject to the terms, covenants and conditions
contained in this Lease to be performed by each party. The Premises are demised
and let subject to (a) the existing state of title as of the Effective Date, (b)
any state of facts which an accurate survey or physical inspection of the
Premises, Building and the Project might show, and (c) all laws, rules,
ordinances and regulations of any applicable governmental authority or body,
including, without limitation, environmental laws (collectively, "LAWS", all
without representation or warranty by Landlord (except as specifically set forth
otherwise in this Lease).
1.2 LANDLORD REPRESENTATION. Landlord represents to Tenant the following:
(a) The Town of Hempstead Industrial Development Agency ("IDA") owns
fee title to the Project, and has leased the Project to Landlord pursuant to
that certain Lease Agreement dated August 1, 2005 between the IDA, as lessor,
and Landlord, as lessee (the "IDA MASTER LEASE");
(b) Landlord has obtained Leasehold title insurance as to the Project,
which title is insured by First American Title Insurance Company of New York
pursuant to Title Policy No. 43008-128856 dated August 18, 2005;
(c) Landlord is a Delaware limited liability company, duly organized
and validly existing under the laws of the State of Delaware, and in good
standing under the laws of the State of New York, and full legal right, power
and authority to execute, deliver, and perform this Lease. This Lease has been
duly authorized, executed and delivered to Tenant;
(d) This Lease complies with the requirements of the following
documents all of which are dated as of August 1, 2005, between the IDA and
Landlord: the IDA Master Lease, the Environmental Compliance and Indemnification
Agreement, Payment-in-Lieu-of-Taxes ("PILOT") Agreement, Mortgages and
Assignment of Leases and Rents (collectively, the "IDA Documents");
(e) To Landlord's knowledge and belief, this Lease and Tenant's
Intended Use is not violative of the terms of that certain Declaration of
Restrictions, dated October 1, 2001, a copy of which is attached hereto as
Exhibit C ("DUPONT C & R's");
(f) Landlord will not default under the IDA Documents to the extent
within Landlord's reasonable control, and to the extent Tenant would be
materially prejudiced by such default;
(g) The Premises will be free of asbestos as of the Commencement Date;
and
(h) For so long as Tenant or its permitted assigns or sublessees are
occupying the first floor portion of the Premises, Landlord will not lease to a
third party the utility room located immediately adjacent to the Warehouse Space
in the first floor of the Building.
1
1.3 IDA APPROVAL. This Lease is subject to the written approval of the IDA (the
"IDA APPROVAL") pursuant to the IDA Master Lease. Landlord shall diligently
pursue IDA Approval and provide Tenant with a copy of the IDA Approval promptly
upon receipt. In the event the IDA Approval is not obtained prior to the date
which is forty-five (45) days after the Effective Date (as defined in Section
2(a)), either party may terminate this Lease upon written notice and thereafter
the Lease shall be of no further force and effect.
1.4 TENANT REPRESENTATION. Tenant represents to Landlord the following:
(a) Tenant is a Delaware corporation, duly organized and validly
existing under the laws of the State of Delaware, and in good standing under the
laws of the State of New York, and full legal right, power and authority to
execute, deliver, and perform this Lease. Upon delivery of the documents
referred to in Section 1.4(b), this Lease will have been duly authorized,
executed and delivered to Landlord;
(b) Tenant shall deliver to Landlord a duly authorized resolution of
its Board of Directors, and a secretary's certificate certifying same, approving
this Lease, all of which documents shall be in form reasonably acceptable to
Landlord, prior to the date which is fifteen (15) days after the Effective Date,
failing which Landlord may terminate this Lease and thereafter this Lease shall
be of no further force and effect.
2. TERM.
(a) This Lease shall be effective upon the date first above written
(the "EFFECTIVE DATE"). The term of this Lease (the "TERM") shall commence upon
the Commencement Date and shall expire on the Lease Expiration Date, unless
sooner terminated. Landlord shall deliver possession of the Premises on the
Commencement Date;
(b) The parties will diligently and in good faith proceed to approve
Tenant Working Drawings (as defined in Exhibit B-2) on or before the day which
is ninety (90) days after the Effective Date and will comply with the timelines
set forth in Exhibit B-2. If for any reason other than Tenant's Delay (as
defined in Exhibit B-2) or Force Majeure Delays (as defined in Section 28.9)
(collectively, "LANDLORD DELAY"), Landlord shall be unable to (1) give
possession of any portion of the Premises in the condition required under this
Lease; and (2) substantially complete the renovation of the Building, including,
but not limited to, the Common Areas, parking areas and landscaping (but not
including premises intended for use by other tenants or which if not
substantially complete, would not materially affect the conduct of Tenant's
business in the Premises) by the date which is one hundred five (105) days after
the parties' approval of Tenant Working Drawings, Tenant shall, in addition to,
any other abatement of rent provided for in this Lease, receive a one (1) day
abatement of rent for each day of Landlord's Delay up to and including February
28, 2006, and thereafter Tenant shall receive a two (2) day abatement of rent.
In the event Landlord fails to deliver the Premises and the Building as provided
in the foregoing sentence by March 31, 2007, Tenant may elect upon twenty (20)
days prior written notice to Landlord to terminate this Lease and thereafter
this Lease shall be of no further force and effect, except that Landlord may
cure said failure within said twenty (20) day period and thereby vitiate
Tenant's notice to terminate the Lease. Tenant's failure to timely elect to
terminate the Lease shall constitute a waiver of Tenant's right to terminate the
Lease and shall also automatically terminate the rent abatement referred to in
this Section 2(b). Notwithstanding the foregoing, (i) no abatement of rent will
apply for the period beginning December 7, 2006 through and including January 5,
2007, and (ii) Tenant will not be obligated to accept possession of the Premises
whereby the Commitment Date would occur between December 7, 2006 and January 5,
2007;
2
(c) If delay in possession is due to Tenant's Delay, there shall be no
extension of the Commencement Date and no abatement of rent as referred to in
this Section 2, and the Rent shall commence on the date that the Commencement
Date would have occurred, but for the Tenant's Delay; and
(d) If permission is given to Tenant to occupy the Premises prior to
the Commencement Date, such occupancy shall be deemed to be pursuant to the
terms of this Lease, except that the parties shall separately agree as to the
obligation of Tenant to pay Rent for such occupancy. Notwithstanding the
immediately preceding sentence, Tenant shall have access to the Premises during
the construction of the Work, upon prior notice to Landlord and in accordance
with reasonable conditions established by Landlord, for installation of Tenant's
communication systems and computer wiring, furniture, fixtures, and equipment
without the commencement of Tenant's rent obligation, provided that such access
or installation does not cause a delay in the Work. The provisions of this
Article are intended to constitute an "express provision to the contrary" within
the meaning of Section 223(a), New York Real Property Law.
3. RENT.
3.1 ANNUAL AND MONTHLY RENT. Tenant agrees to pay Landlord, as rent for the
Premises, the Annual Rent designated in Section 1.6 of the Summary. The Annual
Rent shall be paid by Tenant in twelve (12) equal monthly installments of
"Monthly Rent" in the amounts designated in Section 1.6 of the Summary, without
setoff or deduction except as specified elsewhere in this Lease, in advance on
the first day of each and every calendar month commencing upon the Commencement
Date. Monthly Rent for any partial month shall be prorated in the proportion
that the number of days this Lease is in effect during such month bears to the
actual number of days in such month. Notwithstanding the foregoing, Annual Rent
hereunder shall be abated for the first one hundred and twenty (120) days of the
Term as to the entire Premises, and Annual Rent as to a portion of Suite 300
shall be abated in the sum of $7,449.75 per month for the first twelve (12)
months of the Term (each a "RENT ABATEMENT PERIOD").
3.2 ADDITIONAL RENT. All amounts and charges payable by Tenant under this Lease
in addition to the Annual Rent described in Section 3.1 above shall be
considered additional rent for the purposes of this Lease, and the word "RENT"
in this Lease shall include the Annual Rent and such additional rent unless the
context specifically or clearly implies that only the Annual Rent is referenced.
The Annual Rent and additional rent shall be paid to Landlord as provided in
Section 7, without any prior demand therefore and without any deduction or
offset except as specified elsewhere in the Lease, in lawful money of the United
States of America.
4. COMMON AREAS.
4.1 GENERAL. As used in this Lease, the term "COMMON AREAS" shall mean the parts
of the Project designated by Landlord from time to time for the common use of
all tenants, including, among other facilities, parking areas, sidewalks,
landscaping, curbs, loading areas, private streets and alleys, lighting
facilities, hallways, restrooms, and other areas and improvements provided by
Landlord for the common use of all tenants, all of which shall be subject to
Landlord's sole management and control and shall be operated and maintained in a
manner consistent with the operation and maintenance of similarly situated first
class buildings in Nassau County. Except for the 4th Floor Terrace, Landlord
reserves the right to reasonably change from time to time the dimensions and
location of the Common Areas, as well as the location, dimensions, identity and
type of any building within the Project (other than the Building) and to
construct additional buildings or additional stories on existing buildings or
other improvements in the Project, and to eliminate buildings (other than the
Building) from the Project. In the event Landlord expands buildings, Tenant's
Share of Real Property Taxes as such term is defined in Section 5.1(b)(ii)
3
below shall be decreased to reflect the actual proportionate share. In the event
Landlord eliminates buildings, Tenant's Share of Real Property Taxes will not be
increased thereby. Except for the 4th Floor Terrace of which Tenant shall have
exclusive use thereof, Tenant and its employees, customers, subtenants,
licensees and concessionaires shall have the non-exclusive right and license to
use the Common Areas as constituted from time to time, such use to be in common
with Landlord, other tenants of the Project and other persons permitted by
Landlord to use the same. Landlord may temporarily close any part of the Common
Areas for such periods of time as may be necessary to prevent the public from
obtaining prescriptive rights thereto or to make repairs or alterations,
provided that at all times Tenant shall be provided with reasonable access and
parking.
5. REAL PROPERTY TAX PAYMENT.
5.1 TENANT'S REAL PROPERTY TAX PAYMENT.(a) In addition to Rent, Tenant shall pay
as additional rent Tenant's Share of Real Property Taxes, but subject to the
terms of Section 5.1(c) hereof. Such payment shall hereafter be referred to as
"TENANT'S REAL PROPERTY TAX PAYMENT". Landlord may, if it elects, either deliver
to Tenant periodic statements of Tenant's Real Property Tax Payment or Landlord
may estimate the amount of Tenant's Real Property Tax Payment payable by Tenant
for any calendar year or any portion thereof. In the event Landlord elects to
estimate Tenant's Real Property Tax Payment for any calendar year or any portion
thereof, Landlord shall provide written notice of the estimate of Tenant's Real
Property Tax Payment for the applicable calendar year or any portion thereof and
the monthly installment due for each month during such calendar year or any
portion thereof at least thirty (30) days prior to the date such installments
become due and payable. Tenant shall pay to Landlord on the first day of each
calendar month during any calendar year or any portion thereof Landlord elects
to estimate Tenant's Real Property Tax Payment, the amount of the applicable
monthly installments, without demand. Landlord shall, as soon as reasonably
possible, but no later than three (3) months following the end of any calendar
year or issuance of a tax bill (or its equivalent), determine the actual
Tenant's Real Property Tax Payment and provide Tenant with a copy of the actual
tax bill for the preceding calendar year or any portion thereof and if Tenant's
actual payments of estimated Tenant's Real Property Tax Payments are lesser than
Tenant's share of actual Tenant's Real Property Tax Payments for such year or
any portion thereof, then Tenant shall pay to Landlord the amount of the
deficiency within thirty (30) days from the date of Landlords' notice of
deficiency. Alternatively, if Tenant's actual payments of estimated Tenant's
Real Property Tax Payments are greater than the actual Tenant's Real Property
Tax Payment for such year or any portion thereof, then Landlord shall credit the
amount of the surplus against the next accruing installments of Tenant's Real
Property Tax Payment, or refund the surplus to Tenant within thirty (30) days
from the date of Landlord's notice if such surplus accrues during the last Lease
Year. Landlord's failure to timely deliver a copy of any tax bill (or its
equivalent) or determine the actual Tenant's Real Property Tax Payments shall
not constitute a waiver of Tenant's obligation to make any such payment, which
obligation shall survive the expiration or earlier termination of this Lease.
(b) (i) As used in this Lease, "REAL PROPERTY TAXES" shall mean all
real property taxes and assessments (provided that with respect to a special
assessment, only that portion of the assessment payable within a tax year shall
be deemed Real Property Taxes for such tax year) water and sewer rents and
charges, any similar impositions in lieu of other impositions now or previously
within the definition of real property taxes or assessments, all other
government charges, general and special, ordinary and extraordinary, foreseen
and unforeseen, which are, at any time, for periods covering the Term, imposed
upon or assessed against the entire Project (including, without limitation, the
Building); taxes (exclusive of federal, state or other income taxes and
franchise taxes estate, inheritance, succession, capital stock, transfer or
mortgage recording tax)) such as rent taxes, gross receipts taxes and sales
taxes based on rents and other amounts, whether assessed against the Landlord or
third parties and attributable to the Project shall only be deemed Real Property
Taxes if, due to any change in the method of taxation, any such rent taxes,
gross receipts taxes and sales taxes based on rents and other amounts shall be
substituted for, or
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levied against Landlord or the Project in lieu of, any real estate taxes.
Notwithstanding anything to the contrary herein, the term "Taxes" shall not
include any increases in Taxes resulting from Landlord's redevelopment of the
Project or construction of new buildings, and Tenant shall not be obligated to
pay such increases.
(ii) To the extent and for so long as that certain
Payment-in-Lieu-of-Tax Agreement dated as of August 1, 2005 (the "PILOT
Agreement") between Landlord and the Town of Hempstead Industrial Development
Agency (the "IDA") shall be in effect, Real Property Taxes shall mean the
payments required under the PILOT Agreement. A copy of the PILOT Agreement is
attached hereto as Exhibit D. If at any time during the Term under the laws of
the United States, or the state, county, municipality, or any political
subdivision thereof in which the Premises is located, a tax or excise on rent or
any other tax however described is levied or assessed by any such political body
against Landlord on account of rent payable to Landlord hereunder or any tax
based on or measured by expenditures made by Tenant on behalf of Landlord, such
tax or excise shall be considered "Real Property Taxes" for purposes of this
Section, and shall be payable in full by Tenant.
(iii) The term "TENANT'S SHARE OF REAL PROPERTY TAXES" shall
mean 61.38%.
(iv) Pursuant to the PILOT Agreement, commencing with the
2006/2007 school tax year and the 2007 general tax year, the following shall
constitute the Tenant's Share of Real Property Taxes, payable by Tenant pursuant
to the terms of this Lease:
Lease Year Amount
---------- ------
1 $247,044.06
2 $247,044.06
3 $247,044.06
4 $254,340.72
5 $264,764.52
6 $275,188.32
7 $286,654.50
8 $298,120.68
9 $312,714.00
10 $328,352.85
11 $345,027.78
12 $362,748.24
13 $380,439.50
14 $399,231.54
15 $419,036.76
(c) Landlord acknowledges that the existence of the PILOT Agreement is
a material inducement to Tenant entering into this Lease Agreement, and that in
the event the PILOT Agreement is not in effect for any reason during the initial
Term hereof except Tenant's default under the IDA Compliance Agreement (except
to the extent, however, that Tenant's Intended Use is determined to constitute
such a default), then Tenant's Share of Real Property Taxes shall be calculated
as if the PILOT Agreement were still in effect, and Landlord shall be
responsible to pay to the applicable taxing authority the difference, if any, in
the Real Property Taxes due under the PILOT Agreement and the Real Property
Taxes assessed against the entire Project without giving effect to the PILOT
Agreement.
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6. USE.
6.1 GENERAL. Tenant shall use the Premises solely for the Permitted Use
specified in Section 1.7 of the Summary, and shall not use or permit the
Premises to be used for any other use or purpose whatsoever, including without
limitation a Prohibited Use. Except for the 4th Floor Terrace in no event shall
Tenant use any area outside the Building other than for pedestrian and vehicular
ingress and egress to and from the Premises, other than for parking in the areas
currently designated for parking, and other than to perform Tenant's repairs,
maintenance and other obligations under this Lease.
6.2 COMPLIANCE WITH LAWS. Tenant shall not use or allow the Premises to be used
in violation of any covenants, conditions and restrictions or other agreements
affecting the Premises (of which Tenant has received written notice, or of any
insurance policy in effect with respect to the Premises of which Tenant has
received written notice, or of any Laws or of any certificate of occupancy
issued for the Premises. Tenant shall, at its sole cost and expense, observe and
comply with, and at all times cause the Premises to comply with, all
requirements of any board of fire underwriters or similar body relating to the
Premises, and all Laws, contracts, insurance policies and restrictions now or
hereafter in force relating to or affecting the Premises and the condition, use,
occupancy, alteration and/or improvement thereof, including, without limitation,
the provisions of the Americans with Disabilities Act ("ADA" and the Nassau
County Board of Health and other applicable agencies as to the operation of a
cafeteria); such compliance obligations shall include any and all alterations,
replacements, improvements and changes, whether structural or non-structural,
unforeseen and/or extraordinary, and regardless of the period of time then
remaining in the Lease Term, but only to the extent all or any of the foregoing
compliance requirements arise out of Tenant's specific manner of use or
occupancy of the Premises, and not industrial, warehouse or office use
generally. Tenant acknowledges that its use of the Premises is subject to the
DuPont C&R's, and agrees that it shall provide that the use of the Premises by
any subtenant or assignee shall be similarly subject to the terms thereof, in
addition to the other use requirements and restriction identified in this Lease.
6.3 LANDLORD REPRESENTATIONS. Landlord represents to Tenant that, as of the date
hereof, it has not received any written notice that the Premises or the Building
are not in compliance with any Laws, including, but not limited to, ADA.
Landlord represents and warrants to Tenant that, as of the Commencement Date,
those portions of the Common Areas required for Tenant's Intended Use and the
Premises shall materially comply with, any covenants, conditions and
restrictions or other agreements affecting the Premises which are recorded or as
to which Landlord has knowledge, all requirements of any board of fire
underwriters or similar body relating to the Premises, and all laws, contracts,
insurance policies and restrictions in force relating to or affecting the
Premises and the condition, use, occupancy, alteration and/or improvement
thereof, including, without limitation, the provisions of the ADA.
6.4 NO NUISANCE OR WASTE. Tenant shall not cause, maintain or permit any public
or private nuisance in, on or about the Premises, nor commit or suffer to be
committed any waste in, on or about the Premises. Landlord represents, warrants
and covenants that Landlord shall not use, keep or permit to be used or kept any
foul or noxious gas or substance in any part of the Building, or otherwise allow
any nuisance in any part of the Building which would be objectionable to Tenant
by reason of noise, odors and/or vibrations pursuant to commercially reasonable
standards.
6.5 SIGNS. (a) Tenant shall not install any signs, awnings, canopies or
advertisements in, on or about the Premises (other than interior signs in the
Building which can not be seen outside the Building) unless Tenant complies with
all Laws and obtains approval therefore from all governmental authorities having
jurisdiction over the Premises and from Landlord, which approval shall not be
unreasonably withheld or delayed. Subject to the provisions of this Section 6.5,
Landlord approves the installation by Tenant, at Tenant's sole cost and expense,
of the following signs ("TENANT'S SIGNS"): (a) a monument sign fronting
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Stewart Avenue, and (b) two (2) exterior signs on the upper facade of the
Stewart Avenue and Meadowbrook exposures, the location, size, and aesthetics of
each of the foregoing subject to the prior approval of Landlord, which approval
shall not be unreasonably withheld or delayed. Tenant agrees to maintain any
sign, awning, canopy or advertising matter as may be approved by Landlord in
good condition and repair at all times. At the expiration or earlier termination
of this Lease, or upon the expiration of Tenant's rights to maintain Tenant's
Signs pursuant to this Section 6.5, at Landlord's election, Tenant shall remove
all signs, awnings, canopies and advertising installed by or at the direction of
Tenant and shall repair any damage to the Premises resulting therefrom all at
Tenant's sole cost and expense. If Tenant fails to maintain and/or remove any
such approved sign, awning, canopy or advertising and/or fails to repair any
such damage, Landlord may do so upon at least twenty (20) days prior written
notice to Tenant, and Tenant shall reimburse Landlord for the actual costs
incurred by Landlord in performing such work. If, without Landlord's prior
written consent, Tenant installs any sign, awning, canopy or advertising,
Landlord may upon at least two (2) business days' prior written notice to
Tenant, have such item(s) removed and stored and may repair any damage to the
Premises at Tenant's expense. All removal, repair and/or storage costs incurred
by Landlord pursuant to the foregoing provisions of this Section 6.5 shall bear
interest until paid at the Interest Rate specified in Section 1 .9 of the
Summary.
(b) For so long as Tenant has the right to erect and maintain Tenant's
Signs under Section 6.5, Landlord shall not install or permit the installation
of any other monument sign fronting Stewart Avenue.
(c) Notwithstanding anything stated herein to the contrary, Landlord
shall have the right to maintain "Space for Lease" or similar signs at the
locations shown on the diagram annexed hereto as Exhibit "E."
(d) Tenant's right to install and maintain Tenant's Signs under Section
6.5(a), and the prohibition against additional monument signage fronting Stewart
Avenue, shall expire upon the date that (i) Tenant and/or its permitted
assignees or sublessees no longer occupy at least 51% of the Building, or (ii)
Tenant (i.e., Lifetime Brands, Inc.) no longer occupies at least 51% of the
Premises, whichever is earlier.
(e) Tenant's obligations under this Section 6.5 shall survive the
expiration or earlier termination of this Lease.
6.6 HAZARDOUS MATERIALS. Tenant shall at its sole cost and expense, (i) obtain
and maintain in full force and effect all Environmental Permits that may be
required from time to time under any Environmental Laws applicable to Tenant or
the Premises and (ii) be and remain in compliance with all terms and conditions
of all such Environmental Permits and with all Environmental Laws applicable to
Tenant or the Premises. As used in this Lease, the term "ENVIRONMENTAL LAW"
means any past, present or future federal, state, local or foreign statutory or
common law, or any regulation, ordinance, code, plan, order, permit, grant,
franchise, concession, restriction or agreement issued, entered, promulgated or
approved thereunder, relating to (A) the environment, human health or safety,
including, without limitation, emissions, discharges, releases or threatened
releases of Hazardous Materials into the environment (including, without
limitation, air, surface water, groundwater or land), or (B) the manufacture,
generation, refining, processing, distribution, use, sale, treatment, receipt,
storage, disposal, transport, arranging for transport, or handling of Hazardous
Materials. "ENVIRONMENTAL PERMITS" means, collectively, any and all permits,
consents, licenses, approvals and registrations of any nature at any time
required pursuant to, or in order to comply with, any Environmental Law. Except
for ordinary and general office supplies, such as copier toner, liquid paper,
glue, ink and common household cleaning materials, Tenant agrees not to cause or
permit any Hazardous Materials to be brought upon, stored, used, handled,
generated, released or disposed of on, in, under or about the Premises by
Tenant, its agents, employees,
7
subtenants, assignees, licensees, contractors or invitees (collectively,
"TENANT'S PARTIES"), except in compliance with applicable Environmental Laws. To
the fullest extent permitted by law, Tenant agrees to promptly indemnify,
protect, defend and hold harmless Landlord and Landlord's partners and members
and their respective partners, members, managers, officers, directors,
employees, agents, affiliates, mortgagees, successors and assigns (collectively,
"LANDLORD INDEMNIFIED PARTIES") from and against any and all claims, damages,
judgments, suits, causes of action, losses, liabilities, penalties, fines,
expenses and costs (including, without limitation, clean-up, removal,
remediation and restoration costs, sums paid in settlement of claims, attorneys'
fees, consultant fees and expert fees and court costs, but excluding indirect or
consequential damages) (collectively, "CLAIMS") which arise or result from (1)
the presence of Hazardous Materials in, on, under or about the Premises, arising
out of Tenant's use of the Premises during the Term hereof, and/or (2) Tenant's
breach of any of the provisions of this Section 6.6. Except as otherwise
expressly stated in this Lease, Tenant acknowledges that Tenant has inspected
the Premises, and that Landlord makes no representations or warranties of any
kind or nature with respect to the environmental condition of the Premises,
including, but not limited to, the accuracy of any such environmental reports,
the existence or non-existence of any Hazardous Materials in, on, under or about
the Premises or the compliance of the Premises with applicable Environmental
Laws. As used in this Lease, the term "HAZARDOUS MATERIALS" shall mean and
include any hazardous or toxic materials, substances or wastes as now or
hereafter designated under any law, statute, ordinance, rule, regulation, order
or ruling of any agency of the State, the United States Government or any local
governmental authority, including, without limitation, asbestos, petroleum,
petroleum hydrocarbons and petroleum based products, urea formaldehyde foam
insulation, polychlorinated biphenyls ("PCBS"), and freon and other
chlorofluorocarbons. The provisions of this Section 6.5 will survive the
expiration or earlier termination of this Lease.
6.7 LANDLORD REPRESENTATIONS. Landlord represents to Tenant the following:
(a) Landlord has delivered or made available to Tenant copies of all
material environmental assessments of the Project which are in Landlord's
possession and control.
(b) As of the date hereof, Landlord has not received any written notice
of material non-compliance with any Environmental Law that has not been
remediated or will be remediated as of the Commencement Date.
(c) Landlord has obtained an environmental insurance policy with AIG
identified as policy no. PLS 1422800 dated July 5, 2005 (the "AIG POLICY"), a
copy of which has been provided to Tenant, and Landlord will add Tenant as an
additional insured party thereto prior to the Commencement Date.
6.8 LANDLORD COVENANTS. Landlord covenants and agrees during the Term hereof, at
its sole cost and expense, to maintain in full force and effect the AIG Policy
with Tenant identified thereon as named additional insured.
6.9 REFUSE AND SEWAGE. Tenant agrees not to keep any trash, garbage, waste or
other refuse on the Premises except in sanitary containers. Landlord shall, at
its sole cost and expense, cause the normal office trash and waste (which does
not include laboratory or cafeteria refuse, or cartons) to be removed from the
Premises on a daily basis, Tenant agrees to regularly and frequently remove from
the Premises all other trash and waste and to deposit same in dumpsters to be
supplied by Tenant at its sole cost and expense for Tenant's exclusive use.
Tenant shall keep all containers or other equipment used for storage of such
materials in a clean and sanitary condition. Tenant shall, at its sole cost and
expense, retain a refuse removal company reasonably acceptable to Landlord.
Tenant shall be entitled to place dumpsters in the locations set forth on
Exhibit "C." Tenant shall properly dispose of all sanitary sewage and shall
8
not use the sewage disposal system for the disposal of anything except sanitary
sewage. Tenant shall keep the sewage disposal system free of all obstructions.
7. NOTICES.
Any notice required or permitted to be given hereunder must be in writing and
may be given by personal delivery (including delivery by nationally recognized
overnight courier or express mailing service), or by facsimile, or registered or
certified mail, postage prepaid, return receipt requested, addressed to Tenant
at each of the addresses designated in Section 1.2 of the Summary, or to
Landlord at each of the addresses designated in Section 1.1 of the Summary.
Either party may, by written notice to the other, specify a different address
for notice purposes. Notices shall be deemed received (a) on the date of
delivery, with respect to personal deliveries made prior to 5:00 p.m. EST, (b)
the next business day, with respect to personal deliveries made after 5:00 p.m.
EST and overnight courier or express mailing service deliveries or (c) three (3)
business days after delivery, with respect to registered or certified mail.
8. BROKERS.
Each party represents and warrants to the other that, other than CB Richard
Ellis and Corporate National Realty LLC (collectively the "BROKER"), no broker,
agent or finder (a) negotiated or was instrumental in negotiating or
consummating this Lease on its behalf, and (b) is or might be entitled to a
commission or compensation in connection with this Lease. Any broker, agent or
finder of Tenant whom Tenant has failed to disclose herein shall be paid by
Tenant. Tenant shall indemnify, protect, defend (by counsel reasonably approved
in writing by Landlord) and hold Landlord harmless from and against any and all
Claims resulting from any breach by Tenant of the foregoing representation,
including, without limitation, any Claims that may be asserted against Landlord
by any broker, agent or finder undisclosed by Tenant herein. Landlord shall
indemnify, protect, defend (by counsel reasonably approved in writing by Tenant)
and hold Tenant harmless from and against any and all Claims resulting from any
breach by Landlord of the foregoing representation, including, without
limitation, any Claims that may be asserted against Tenant by any broker, agent
or finder undisclosed by Landlord herein. The foregoing indemnities shall
survive the expiration or earlier termination of this Lease. Landlord shall pay
the Broker pursuant to separate agreement.
9. SURRENDER; HOLDING OVER.
9.1 SURRENDER OF PREMISES. Upon the expiration or sooner termination of this
Lease, Tenant shall surrender all keys for the Premises to Landlord, and Tenant
shall deliver exclusive possession of the Premises to Landlord broom clean and
in first-class condition and repair, reasonable wear and tear excepted (and any
casualty damage which is Landlord's responsibility to repair excepted), with all
of Tenant's personal property (and those items, if any, of Tenant Changes
identified by Landlord pursuant to Section 12.2 below) removed therefrom and all
damage caused by such removal repaired, as required pursuant to Sections 12.2
and 12.3 below. If, for any reason, Tenant fails to surrender the Premises on
the expiration or earlier termination of this Lease, with such removal and
repair obligations completed, then, in addition to the provisions of Section 9.3
below and Landlord's rights and remedies under Section 12.4 and the other
provisions of this Lease, Tenant shall indemnify, protect, defend (by counsel
reasonably approved in writing by Landlord) and hold Landlord harmless from and
against any and all Claims resulting from such failure to surrender, including,
without limitation, any Claims made by any succeeding tenant based thereon, but
not including consequential damages. The foregoing indemnity shall survive the
expiration or earlier termination of this Lease.
9.2 HOLDING OVER. If Tenant holds over after the expiration or earlier
termination of the Lease Term, then, without waiver of any right on the part of
Landlord as a result of Tenant's failure to timely surrender
9
possession of the Premises to Landlord, Tenant shall become a tenant at
sufferance only, upon the terms and conditions set forth in this Lease so far as
applicable (including Tenant's obligation to pay all costs, expenses and any
other additional rent under this Lease), but at a Monthly Rent equal to the
following: (i) for the first thirty (30) days of holdover, one hundred percent
(100%) of the Monthly Rent applicable to the Premises immediately prior to the
date of such expiration or earlier termination; (ii) for the next ninety (90)
days of holdover one hundred fifty percent (150%) of the Monthly Rent applicable
to the Premises immediately prior to the date of such expiration or earlier
termination; (iii) for any period thereafter, two hundred percent (200%) of the
Monthly Rent applicable to the Premises immediately prior to the date of such
expiration or earlier termination. Acceptance by Landlord of rent after such
expiration or earlier termination shall not constitute a consent to a hold over
hereunder or result in an extension of this Lease. Tenant shall pay an entire
month's Monthly Rent calculated in accordance with this Section 9.2 for any
portion of a month it holds over and remains in possession of the Premises
pursuant to this Section 9.2.
9.3 NO EFFECT ON LANDLORD'S RIGHTS. The foregoing provisions of this Section 9
are in addition to, and do not affect, Landlord's right of re-entry or any other
rights of Landlord hereunder or otherwise provided at law or in equity.
10. PERSONAL PROPERTY TAXES.
Tenant shall be liable for, and shall pay before delinquency, all taxes and
assessments levied against any personal property or trade fixtures placed by
Tenant in or about the Premises. If any such taxes or assessments are levied
against Landlord or Landlord's property, Landlord may, after at least thirty
(30) days written notice to Tenant (and under proper protest if requested by
Tenant) pay such taxes and assessments, and Tenant shall reimburse Landlord
therefor within thirty (30) days after demand by Landlord; provided, however,
Tenant, at its sole cost and expense, shall have the right, with Landlord's
cooperation, to bring suit in any court of competent jurisdiction to recover the
amount of any such taxes and assessments so paid under protest.
11. REPAIRS.
11.1 TENANT'S REPAIR OBLIGATIONS. Tenant shall at all times take good care of
the Premises and the fixtures and appurtenances therein other than structural
items and the Building Systems. All damage or injury to the Premises and to such
fixtures and appurtenances, including structural items and the Building Systems,
caused by Tenant's moving property in and out of the Building or the Premises,
or by installation or removal of fixtures, furniture or other property, or from
any other action or omission by Tenant, shall be repaired and restored or
replaced promptly by Tenant, at its sole cost and expense. All repairs,
restorations and replacements shall be in quality and class equal to the
original work or installations.
11.2 Warehouse HVAC. The cost of all heating, ventilation and air conditioning
systems located within or serving the warehouse space (the "WAREHOUSE SPACE")
exclusively (the "WAREHOUSE SPACE HVAC") shall be included in the Base Building
Work (as defined in Section .11.6 hereof). Landlord shall deliver the Warehouse
Space HVAC in good working order at the Commencement Date. Landlord shall
maintain the Warehouse Space HVAC at Tenant's expense, provided the expense is
commercially competitive. Landlord shall obtain commercially reasonable
warranties or guaranties for the Warehouse Space HVAC. In the event any portion
of the Warehouse Space HVAC is required to be replaced, the cost of such
replacement up to seventh anniversary of the Commencement Date shall be
Landlord's sole obligation; from the date thereafter until the eleventh
anniversary of the Commencement Date, Landlord and Tenant shall each be
responsible for fifty percent (50%) of the cost of such replacement; from the
date thereafter until the end of the initial Term of this Lease, the cost of
such replacement shall be
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prorated between Landlord and Tenant based on the number of Lease Years
remaining in the initial Term. The cost of any such replacement during any
renewal Term shall be Landlord's sole responsibility
11.3 LANDLORD'S REPAIR AND REPLACEMENT OBLIGATIONS AS TO PREMISES. Except as
provided in Sections 11.1 and 11.2 above, Landlord shall at all times keep,
maintain, clean, repair, replace and preserve the Project and the improvements,
fixtures, appurtenances and equipment thereon in good condition and repair
commensurate with other similar commercial projects in the area, including,
without limitation, maintaining, repairing and replacing when required all:
plumbing, heating, air conditioning, electrical and mechanical fixtures and
systems, water and sewer lines (collectively, the "BUILDING SYSTEMS"), the
Common Areas, elevators, sprinkler systems, roofs, foundations, and exterior
walls of the Buildings, driveways, walkways, parking lots, fencing, signs, rail
spur areas, lawns, and landscaping, Landlord shall, in addition, supply
reasonable snow and ice removal for the walkways and parking areas of the
Project.
11.4 LANDLORD'S CURE OPTION. If Tenant fails to make repairs, restorations or
replacements as required under Section 11.1, the same may be made by Landlord
after at least twenty (20) days prior written notice to Tenant (except in the
case of an emergency), at Tenant's expense, and the amounts spent by Landlord
(together with interest thereon at the Interest Rate, from the date of
Landlord's expenditure through the date of Tenant's payment in full) shall be
collectible as additional rent, to be paid by Tenant on demand by Landlord.
11.5 NO DIMINUTION OF RENTAL. Except as otherwise provided for herein, there
shall be no allowance to Tenant for a diminution of rental value, and no
liability on Landlord's part, by reason of inconvenience, annoyance or injury to
Tenant's business arising from the making of repairs, alteration, additions or
improvements in or to the Premises or the Building or Project, or to the
fixtures, appurtenances or equipment thereof, by Landlord, Tenant or others.
Landlord will use its best efforts to not interrupt Tenant's use and enjoyment
of the Premises when making such repairs, alterations, additions or
improvements, but the obligation to use best efforts shall not require Landlord
to employ overtime labor or pay any premium or surcharge for labor or materials.
In the event the making of repairs, alterations, additions or improvements by
Landlord or its contractors, agents or employees causes the Premises or any
material portion thereof to be untenantable, and are not tenanted by Tenant, due
to failure (other than if caused by Tenant or its employees, officers, agents or
representatives) of the Building Systems, or structural problems or substantial
denial of access for five (5) consecutive business days and if Tenant so gives
notice to Landlord, then for so long as the specific cause of such
untenantability continues thereafter and the Premises or any material portion
thereof continues to be untenanted by Tenant, the Rent payable under this Lease
shall be proportionately abated and Tenant shall have the right to terminate
this Lease if such untenantability continues for sixty (60) consecutive calendar
days. Tenant's right to terminate this Lease under the foregoing sentence shall
be on at least thirty (30) days prior written notice to Landlord, and landlord
shall have the opportunity to cure the subject condition during said thirty (30)
day period, in which event Tenant's notice of termination shall be deemed void
and of no force and effect.
11.6 BUILDING AND PREMISES CONDITION.
(a) Base Building Work. Landlord, at its sole cost and expense, shall
construct the Project and the Building, and any and all improvements, including,
but not limited to, 503 paved parking spaces, as shown on the site plan adopted
by the Town of Hempstead on January 10, 2006 (the "SITE PLAN") and as more
particularly described in the floor plans, elevations and construction drawings
prepared by Ehasz Giacalone Architects PC last revised on April 10, 2006 and
which may be further revised provided Tenant is not materially prejudiced
thereby (the "BUILDING PLANS"), including, but not limited to, the work and
installations for the Premises as set forth in Exhibit B-1 annexed hereto (the
Site Plan, Building Plans and Exhibit B-1 are referred to herein collectively as
the "BASE BUILDING WORK"). Landlord's Base Building
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Work shall be performed with reasonable diligence in a good and workmanlike
manner and in compliance with all applicable laws, rules and regulations.
(b) Premises Work. Landlord, at Tenant's sole cost and expense, subject
to the Landlord Allowance (as defined in Exhibit B-2 hereof), shall construct
the Premises in accordance with approved Tenant Working Drawings and upon the
terms and conditions set forth in Exhibit B-2 hereof. Landlord agrees that such
construction shall be completed in a good and workmanlike manner and in
compliance with all applicable Laws.
12. ALTERATIONS.
12.1 TENANT CHANGES; CONDITIONS. (a) Except as otherwise expressly provided for
herein, Tenant shall not make any alterations, additions, or improvements to the
Premises (collectively, "TENANT CHANGES," and individually, a "TENANT CHANGE")
unless Tenant first obtains Landlord's prior written approval thereof, which
approval Landlord shall not unreasonably withhold or delay; provided, however,
Landlord may withhold it consent, in its sole and absolute discretion with
respect to any such alterations, additions, improvements or decorations to or
affecting (i) the Building's structure, roof and systems (the "BASE BUILDING
COMPONENTS") or any other structural components, and/or utilities or systems of
or serving the Premises or any portion thereof, or (ii) the exterior portions of
the Building (the "EXTERIOR AREAS"). Notwithstanding the foregoing, Landlord's
consent shall not be required for any trade displays or decorations, or any
nonstructural alterations (collectively "PERMITTED TENANT CHANGES") which in
each instance, (x) is not within the Alterations described in (i) or (ii) of the
preceding sentence, and (y) costs less than $50,000.
(b) All Tenant Changes, including Permitted Tenant Changes,
shall be performed: (i) in accordance with plans, specifications and working
drawings approved by Landlord; which approval Landlord shall not unreasonably
withhold or delay; (ii) lien-free and in a good and workmanlike manner; (iii) in
compliance with all Laws, including, without limitation, the provisions of the
ADA; (iv) at such times, in such manner and subject to such rules and
regulations as Landlord may from time to time reasonably designate; (v) in
compliance with the requirements of any insurance policy required to be
maintained by Tenant under this Lease; and (vi) with contractors reasonably
approved by Landlord, provided such the rates of such contractors are
commercially competitive. Tenant shall pay within thirty (30) days of receipt of
a bill therefore all costs and expenses of any Tenant Changes.
(c) Throughout the performance of the Tenant Changes, Tenant
shall obtain, or cause its contractors to obtain, workers compensation insurance
and commercial general liability insurance in compliance with the provisions of
Section 20 of this Lease.
12.2 REMOVAL OF TENANT CHANGES. All Tenant Changes, including Permitted Tenant
Changes shall become the property of Landlord and shall remain upon and be
surrendered with the Premises at the end of the Term of this Lease; provided,
however, Landlord may, by written notice delivered to Tenant at the time of
Landlord's consent to any Tenant Change, or in the case of Permitted Tenant
Changes, within twenty (20) days of Landlord's receipt from Tenant of a notice
of any Permitted Tenant Change, identify those items of the Tenant Changes or
Permitted Tenant Changes, which Landlord shall require Tenant to remove at the
end of the Term of this Lease. Landlord's failure to provide the foregoing
written notice requiring removal shall be deemed to be a waiver by Landlord of
its right to require such removal. In no event shall Tenant be required to
remove any of the improvements existing in the Building as of the date
possession thereof is delivered to Tenant. If Landlord requires Tenant to remove
any such items as described above, Tenant shall, at its sole cost, remove the
identified items on or before the expiration or sooner termination of this Lease
and repair any damage to the Premises caused by such removal (or, at Landlord's
option, shall pay to Landlord the reasonable cost to Landlord of such removal
and repair).
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Notwithstanding anything to the contrary contained herein, in no event shall
Tenant be obligated to remove telecommunications or electrical wiring, or
piping.
12.3 REMOVAL OF PERSONAL PROPERTY. Notwithstanding the foregoing, all articles
of personal property owned by Tenant or installed by Tenant at its expense on
the Premises (including business and trade fixtures, furniture and movable
partitions) shall be, and remain, the property of Tenant, and shall be removed
by Tenant from the Premises, at Tenant's sole cost and expense, on or before the
expiration or sooner termination of this Lease. Tenant shall repair any damage
caused by such removal.
12.4 TENANT'S FAILURE TO REMOVE. If Tenant fails to remove by the expiration or
sooner termination of this Lease all of its personal property, or any items of
Tenant Changes identified by Landlord for removal pursuant to Section 12.2
above, Landlord may, (without liability to Tenant for loss thereof), upon at
least ten (10) days prior written notice, at Tenant's sole cost and in addition
to Landlord's other rights and remedies under this Lease, at law or in equity:
(a) remove and store such items in accordance with applicable law; and/or (b)
upon twenty (20) days' prior notice to Tenant sell all or any such items at
private or public sale for such price as Landlord may obtain as permitted under
applicable law.
13. LIENS.
Tenant shall not permit any mechanic's, materialmen's or other liens to be filed
against all or any part of the Premises, the Building or the Project nor against
Tenant's leasehold interest in the Premises, by reason of or in connection with
any repairs, alterations, improvements or other work contracted for or
undertaken by Tenant or any other act or omission of Tenant or Tenant's agents,
employees, contractors, licensees or invitees. Tenant shall, at Landlord's
request, provide Landlord with enforceable, conditional and final lien releases
(and other reasonable evidence reasonably requested by Landlord to demonstrate
protection from liens) from all persons furnishing labor and/or materials with
respect to the Premises. Landlord shall have the right at all reasonable times
to post on the Premises and record any notices of non-responsibility which it
deems necessary for protection from such liens. If any such liens are filed,
Tenant shall, at its sole cost, within thirty (30) days after filing thereof,
cause such lien to be released of record or bonded so that it no longer affects
title to the Premises, the Building or the Project. If Tenant fails to cause
such lien to be so released or bonded within such thirty (30) day period,
Landlord may, without waiving its rights and remedies based on such breach, and
without releasing Tenant from any of its obligations, cause such lien to be
released by any means it shall deem proper, including payment in satisfaction of
the claim giving rise to such lien. Tenant shall pay to Landlord within ten (10)
business days after receipt of invoice from Landlord, any sum paid by Landlord
to remove such liens, together with interest at the Interest Rate from the date
of such payment by Landlord.
14. ASSIGNMENT AND SUBLETTING.
14.1 RESTRICTION ON TRANSFER. Tenant shall not assign or encumber this Lease in
whole or in part, nor sublet all or any part of the Premises, without the prior
written consent of Landlord, which consent Landlord will not unreasonably
withhold, except as provided in this Section 14. The consent by Landlord to any
assignment, encumbrance or subletting shall not constitute a waiver of the
necessity for such consent to any subsequent assignment or subletting. This
prohibition against assigning or subletting shall be construed to include a
prohibition against any assignment or subletting by operation of law. Without
limiting in any way Landlord's right to withhold its consent on any reasonable
grounds, it is agreed that Landlord will not be acting unreasonably in refusing
to consent to an assignment or sublease if, in Landlord's opinion, (a) the
proposed assignee or subtenant does not have the financial capability to fulfill
the obligations imposed by the assignment or sublease, as applicable, (b) the
proposed assignment or sublease involves a use which is a Prohibited Use, or (c)
Landlord's mortgagee(s) or superior lessor(s) does(do) not approve such
assignment or sublease. Any proposed assignee or subtenant which Landlord
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does not disapprove shall be deemed a "PERMITTED BUSINESS." If Tenant is not a
publicly traded corporation, or is an unincorporated association or partnership,
the transfer, assignment or hypothecation of any stock or interest in such
corporation, association or partnership in the aggregate in excess of forty-nine
percent (49%) shall be deemed an assignment within the meaning and provisions of
this Section 14.1.
14.2 TRANSFER NOTICE. If Tenant desires to effect an assignment, encumbrance or
subletting (a "TRANSFER"), then at least twenty (20) days prior to the date when
Tenant desires the Transfer to be effective (the "TRANSFER DATE"), Tenant agrees
to give Landlord a notice (the "TRANSFER NOTICE"), stating the name, address and
business of the proposed assignee, sublessee or other transferee (sometimes
referred to hereinafter as "TRANSFEREE"), reasonable information (including
references) concerning the character, ownership, and financial condition of the
proposed Transferee, the Transfer Date, any ownership or commercial relationship
between Tenant and the proposed Transferee, and the consideration and all other
material terms and conditions of the proposed Transfer, all in such detail as
Landlord may reasonably require.
14.3 LANDLORD'S OPTIONS. Within fifteen (15) business days of Landlord's receipt
of any Transfer Notice, and any additional information requested by Landlord
concerning the proposed Transferee's financial responsibility, Landlord will
notify Tenant of its election to do one of the following: (a) consent to the
proposed Transfer subject to such reasonable conditions as Landlord may impose
in providing such consent; (b) refuse such consent, which refusal shall be on
reasonable grounds; or (c) in the event of assignment of the Lease, or a sublet
of the entire Premises for the remaining Term of the Lease, terminate this Lease
as to all or such portion of the Premises which is proposed to be sublet or
assigned and recapture all or such portion of the Premises for reletting by
Landlord.
14.4 ADDITIONAL CONDITIONS. A condition to Landlord's consent to any Transfer of
this Lease will be the delivery to Landlord of a true copy of the fully executed
instrument of assignment, sublease, transfer or hypothecation, in form and
substance reasonably satisfactory to Landlord, which instrument shall, in the
case of an assignment, include an express assumption by the assignee of all of
Tenant's obligations under this Lease. Any excess rent or other consideration
payable to and for the benefit of Tenant by the assignee or sublessee in excess
of the Rent payable under this Lease shall be retained by and be the property of
the Tenant. No Transfer will release Tenant of Tenant's obligations under this
Lease or alter the primary liability of Tenant to pay the Rent and to perform
all other obligations to be performed by Tenant hereunder. Each sublease shall
provide that if Landlord gives said sublessee written notice that Tenant is in
default under this Lease, said sublessee will thereafter make all payments due
under the sublease up to, but not exceeding the Rent, directly to or as directed
by Landlord, which payments will be credited against any payments due under this
Lease. No collection or receipt of Rent by Landlord shall be deemed a waiver on
the part of Landlord, or the acceptance of the assignee, subtenant or occupant
as Tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. Consent by Landlord to one
Transfer will not be deemed consent to any subsequent Transfer. In the event of
default by any Transferee of Tenant or any successor of Tenant in the
performance of any of the terms hereof, Landlord may proceed directly against
Tenant without the necessity of exhausting remedies against such Transferee or
successor. If Tenant effects a Transfer or requests the consent of Landlord to
any Transfer (whether or not such Transfer is consummated), then, upon demand,
and as a condition precedent to Landlord's consideration of the proposed
assignment or sublease, Tenant agrees to pay Landlord Landlord's reasonable
attorneys' fees and costs and other costs incurred by Landlord in reviewing such
proposed assignment or sublease not to exceed the sum of $2,500 per Transfer.
Notwithstanding any contrary provision of this Lease, if Tenant or any proposed
Transferee claims that Landlord has unreasonably withheld or delayed its consent
to a proposed Transfer or otherwise has breached its obligations under this
Section 14, Tenant's and such Transferee's only remedy shall be to seek a
declaratory judgment and/or injunctive relief, and Tenant, on behalf of itself
and, to the
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extent permitted by law, such proposed transferee waives all other remedies
against Landlord, including without limitation, the right to seek monetary
damages or to terminate this Lease.
14.5 PERMITTED TRANSFER. Subject to the provisions of Article 14 (including,
without limitation, the provision in Section 14.4) which states that Tenant is
not released from its obligations under this Lease, Tenant shall have the right
to assign this Lease or sublet the entire Premises without receiving Landlord's
prior written consent and without Landlord having a right to terminate this
Lease under Section 14.3: (i) to any of its subsidiary corporations, (ii) to a
parent corporation or a subsidiary corporation of such parent corporation, (iii)
in connection with a sale of all or substantially all of the assets of Tenant
(and/or Tenant's parent corporation and/or affiliates) as part of a unified
transaction (the purchaser of such assets being hereinafter referred to as a
"SUCCESSOR CORPORATION"), or (iv) in connection with a merger, consolidation or
reorganization of Tenant with any other entity (such entity also being
hereinafter referred to as a "Successor Corporation"), provided that any such
assignee under this Section 14.5 has a net worth at the time of the assignment
equal to or greater than the net worth of Tenant as of the date hereof.
15. ENTRY BY LANDLORD.
Landlord and its employees and agents shall at all reasonable times and upon at
least twenty-four (24) hour prior notice (except in the case of an emergency)
have the right to enter the Premises to inspect the same, to exhibit the
Premises to prospective lenders or purchasers (or during the last nine (9)
months of the Term, to prospective tenants), to post notices of
non-responsibility, and/or to alter, improve or repair the Premises as
contemplated by Section 11, all without being deemed guilty of or liable for any
breach of Landlord's covenant of quiet enjoyment or any eviction of Tenant, and
without abatement of rent, except as otherwise provided for in this Lease. In
exercising such entry rights, Landlord shall endeavor to minimize, as reasonably
practicable, the interference with Tenant's business, and shall provide Tenant
with reasonable advance notice of such entry (except in emergency situations).
Landlord shall have the means which Landlord may deem proper to open Tenant's
doors in an emergency in order to obtain entry to the Premises. Any entry to the
Premises obtained by Landlord by any of said means or otherwise shall not under
any circumstances be construed or deemed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or an eviction of Tenant from the Premises
or any portion thereof, or grounds for any abatement or reduction of Rent and
Landlord shall not have any liability to Tenant for any damages or losses on
account of any such entry by Landlord. Notwithstanding anything to the contrary
contained herein, the foregoing provision is not intended, and shall not be
construed, to be authorization by Tenant for Landlord to access any propriety
and/or confidential information located in the Premises.
16. UTILITIES AND SERVICES.
(a) Landlord shall, at its sole cost and expense, supply utility,
water, gas and sewer connections from the utility companies to the Project.
Tenant shall be solely responsible for obtaining and shall promptly pay all
charges for heat, air conditioning, water (except as set forth below), gas,
electricity or any other utility used, consumed or provided in, furnished to or
attributable to the Premises directly to the supplying utility companies. Tenant
shall reimburse Landlord within thirty (30) days of billing for fixture charges
and/or water tariffs, if applicable, which are charged to Landlord by utility
companies. Landlord will notify Tenant in writing of this charge as soon as it
becomes known. This charge will increase or decrease with current charges being
levied against Landlord or the Premises by the local utility company, and will
be due as additional rent. In no event shall Rent abate or shall Landlord be
liable for any interruption or failure in the supply of any utility services to
the Premises, unless caused by the negligent acts or omissions of Landlord, its
employees, contractors, or agents in which event any such abatement shall be
governed by Section 11.5 hereof. . Landlord shall install, at Tenant's cost and
expense, a submeter or submeters to measure Tenant's gas and electricity usage.
Tenant shall maintain the submeter or submeters at Tenant's cost and expense.
Landlord shall provide water for drinking, lavatory
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and toilet purposes from the regular Building supply (at the prevailing
temperature) through fixtures installed by Landlord (or by Tenant with
Landlord's prior written consent), the cost of which installation shall be
included in Landlord's Allowance (except as otherwise provided in Exhibit B-1).
(b) Replacement of fluorescent and incandescent bulbs and ballasts in
the Premises shall be provided by Landlord and Tenant shall pay to Landlord the
actual cost for such bulbs and ballasts and Landlord's labor costs thereof.
Replacement of bulbs and ballasts in spaces leased to other tenants of Landlord
shall be billed to said tenants on an individual basis. Replacement of bulbs and
ballasts in the Common Areas shall not be Tenant's responsibility.
17. INDEMNIFICATION AND EXCULPATION.
17.1 TENANT'S ASSUMPTION OF RISK AND WAIVER. Except to the extent such matter is
not covered by the insurance required to be maintained by Tenant under this
Lease and such matter is indemnified by Landlord pursuant to Section 17.2(b)
below, Landlord shall not be liable to Tenant, Tenant's employees, agents or
invitees for: (a) any loss (including loss by theft) or damage to property of
Tenant, or of others, located in, on or about the Premises, the Building or the
Project which property shall be the sole risk of Tenant, (b) any injury or
damage to persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water, rain or leaks from any part of the Premises, the
Building or the Project or from the pipes, appliance of plumbing works or from
the roof, street or subsurface or from any other places or by dampness or by any
other cause of whatsoever nature, or (c) any such damage caused by other persons
in, on or about the Premises, the Building or the Project, occupants of adjacent
property, or the public, or caused by operations in construction of any private,
public or quasi-public work; except and to the extent that any of the foregoing
losses, injuries, or damages set forth in (a), (b), or (c) above result from the
negligence or willful misconduct of Landlord or the Landlord Indemnified
Parties. Landlord shall in no event be liable for any consequential or punitive
damages or loss of business or profits under this Section 17 and Tenant hereby
waives any and all claims for any such damages.
17.2 INDEMNIFICATION.
(a) Tenant shall be liable for, and shall indemnify, defend, protect
and hold Landlord and the Landlord Indemnified Parties harmless from and
against, any and all Claims arising or resulting from (i) any injury to, or
death of, any person, or any loss of, or damage to, (x) any property in or on
the Premises, and (y) the Building or the Project, or on adjoining sidewalks,
streets or ways, caused by Tenant or any of the Tenant's Parties; (ii) any act,
omission or negligence of Tenant or any of the Tenant's Parties; (iii) the use
of the Premises, the Building or the Project and conduct of Tenant's business by
Tenant or any Tenant Parties, or any other activity, work or thing done,
permitted or suffered by Tenant or any Tenant Parties, in, on or about the
Premises, the Building or the Project or (iv) Tenant's breach of any
representations, warranties or obligations under this Lease; provided, however,
Tenant shall not be required to indemnify or hold Landlord or the Landlord
Indemnified Parties harmless from any Claims to the extent resulting from the
negligence or willful misconduct of Landlord or the Landlord Indemnified
Parties. In case any action or proceeding is brought against Landlord or any
Landlord Indemnified Parties by reason of any such indemnified Claims, Tenant,
upon written notice from Landlord, shall defend the same at Tenant's expense by
counsel approved in writing by Landlord, which approval shall not be
unreasonably withheld.
(b) Landlord shall be liable for, and shall indemnify, defend, protect
and hold Tenant and the Tenant Indemnified Parties ("Tenant's Indemnified
Parties" meaning the same parties, as to Tenant, as are included in the
definition of "Landlord's Indemnified Parties" in Section 6.6) harmless from and
against, any and all Claims arising or resulting from (i) the negligent or
willful misconduct of Landlord or Landlord Indemnified Parties; (ii) Landlord's
breach of any representations or warranties under this Lease; (iii) the failure
of Landlord in any respect to comply with or perform all the requirements and
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provisions of this Lease; provided, however, Landlord shall not be required to
indemnify or hold Tenant or the Tenant Indemnified Parties harmless from any
Claims to the extent resulting from the negligence or willful misconduct of, or
breach of this Lease by, Tenant or the Tenant Indemnified Parties or any other
tenant, except as otherwise provided in this Lease. In case any action or
proceeding is brought against Tenant or any Tenant Indemnified Parties by reason
of any such indemnified Claims, Landlord, upon notice from Tenant, shall defend
the same at Landlord's expense by counsel approved in writing by Tenant, which
approval shall not be unreasonably withheld.
17.3 SURVIVAL; NO RELEASE OF INSURERS. The indemnification obligations under
Section 17.2, shall survive the expiration or earlier termination of this Lease.
The covenants, agreements and indemnification in Sections 17.1 and 17.2 above,
are not intended to and shall not relieve any insurance carrier of its
obligations under policies required to be carried by Tenant, pursuant to the
provisions of this Lease.
18. SERVICES/RULES AND REGULATIONS.
18.1 ELEVATORS. Landlord shall provide necessary elevator facilities on weekdays
from 8:00 A.M. to 6:00 P.M. (which hours of operation during weekdays are herein
referred to as "business hours"), and on Saturdays from 8:00 A.M. to 1:00 P.M.,
and shall have an elevator in service at all other times.
18.2 DISCONTINUE ELECTRICITY. Landlord reserves the right to discontinue
furnishing electric energy to Tenant at any time, upon giving not less than
sixty (60) days prior written notice to Tenant to such effect, and from and
after such effective date of termination, Landlord shall no longer be obligated
to furnish Tenant with electric energy. If Landlord exercises such right of
termination, this Lease shall remain unaffected thereby, and continue in full
force and effect, and thereafter Tenant shall arrange to obtain electric service
direct from the public utility company servicing the Building, utilizing the
then existing electric feeders, risers and wiring serving the Demised Premises
to the extent that the same are available, suitable and safe for such purpose.
Landlord, at Tenant's expense, shall do all work necessary to provide such
direct service, including installations of meters, additional wiring and panel
board, as may be necessary therefor, so as to enable Tenant to receive its
electric current directly from the Utility Company without any expense to
Landlord. Landlord shall use good faith efforts so that there shall be no
discontinuance of the furnishing of electric current to the Premises by Landlord
until Tenant has completed its arrangements to obtain electric current directly
from the public utility company furnishing electric current to the Building, so
that there is no interruption in the continuity of electric service.
18.3 CLEANING. Landlord agrees to provide in the Premises all other services set
forth in Exhibit F, annexed hereto and made a part hereof, entitled "Cleaning
Schedule". All Cleaning for the Premises shall occur after 6:00 P.M. on
weekdays, Landlord shall not be liable to provide cleaning services on
Saturdays, Sundays or legal holidays. Tenant agrees that extraordinary waste,
such as crates, cartons, boxes, etc. (the discarding of used furniture or
equipment being deemed extraordinary waste) shall be removed from the Building
and properly disposed of in on-site dumpsters at Tenant's own cost and expense.
At no time shall Tenant place any waste of any kind in any public areas. If
Tenant does so, the parties agree that everything so placed is abandoned and of
no value to Tenant, and Landlord may have the same removed and disposed of at
Tenant's expense. This remedy is in addition to any other remedies Landlord may
have. Landlord shall further maintain the Common Areas in such a commercially
reasonable manner consistent with other first class buildings in the area.
18.4 RULES AND REGULATIONS. Tenant and Tenant's servants, employees and agents
shall observe faithfully and comply strictly with the rules and regulations set
forth in Exhibit G attached hereto and made a part hereof, and such other and
further reasonable rules and regulations as Landlord or Landlord's agents may
from time to time adopt; provided, however, that the terms of the body of this
Lease Agreement shall control in the event of a conflict between the body of
this Lease Agreement and the
17
Rules and Regulations set forth in Exhibit G. Written notice of any additional
rules or regulations shall be given to Tenant. Nothing in this Lease contained
shall be construed to impose on Landlord any duty or obligation to enforce the
rules and regulations, or the terms, covenants or conditions in any other lease,
against any other tenant of the Building, and Landlord shall not be liable to
Tenant for violation of the same by any other tenant, its servants, employees,
agents, visitors or licensees; provided, however, that Landlord agrees to
enforce such rules and regulations uniformly and in a non-discriminatory manner.
18.5 COMMON AREAS HVAC/LIGHTING. Landlord shall provide commercially reasonable
heating, ventilation, air conditioning and lighting in the Common Areas, which
lighting shall be provided from dusk until dawn.
19. EMINENT DOMAIN.
19.1 TOTAL TAKING. If all, or substantially all, of the Building shall be
lawfully condemned or taken in any manner for any public or quasi-public use,
this Lease shall cease and terminate as of the date of vesting of title in the
conditions.
19.2 PARTIAL TAKING. If a portion of the Building shall be so condemned or
taken, but if such taking shall substantially affect the Premises or if such
condemnation or taking shall be of a substantial part of the Premises, or an
amount of the surface parking area of the Project which materially impacts the
conduct of Tenant's business at the Premises. Landlord and Tenant shall each
have the right, by delivery of notice in writing to the other party within
thirty (30) days of such party's receipt of a notice of such taking, to
terminate this Lease and the term and estate hereby granted, as of the date of
the vesting of title in the condemnor. If neither party shall so elect, this
Lease shall be and remain unaffected by such condemnation or taking, except
that, effective as of the date of actual taking, the Annual Rent payable by
Tenant shall be diminished by an amount which shall bear the same ratio to the
Annual Rent as the rentable square foot floor area of the portion of the
Premises taken bears to the rentable square foot floor area of the Premises, and
Tenant's Proportionate Share shall be adjusted accordingly.
19.3 TERMINATION OF LEASE. In the event of the termination of this Lease in
accordance with the provisions of Section 19.1 or 19.2 hereof, the Annual Rent
and the additional rent shall be apportioned and prorated accordingly. In the
event of any taking, partial or otherwise, Tenant shall not be entitled to claim
or receive any part of any award or compensation which may be awarded in any
such condemnation proceeding, or as a result of such condemnation or taking,
whether the same be for the value of the unexpired term of this Lease or
otherwise, or to any damages against Landlord and/or the condemning authority.
Nothing herein contained, however, shall be deemed to preclude Tenant from
making any separate claim against the condemnor for the value of any fixtures or
other installations made by Tenant in the Premises and which do not, upon
installation or the expiration or earlier termination of this Lease, become the
property of Landlord, or for Tenant's moving expenses, provided the award for
such claim or claims, except as herein provided, is not in diminution of the
award made to Landlord.
19.4 TEMPORARY TAKING. In the event there is a temporary interference with
substantial access to the Premises for a period in excess of ten (10) continuous
days, Landlord agrees that Tenant shall be entitled to file a claim for such
interference and receive the benefit of the award to the extent that the award
does not represent a repair award for restoration of the structure or grounds of
the Building or Premises, or may decrease the amount of any award available to
Landlord.
20. FIRE AND OTHER CASUALTY AND TENANT'S REQUIRED INSURANCE.
20.1 CASUALTY.
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(a) If the Premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give immediate notice thereof to Landlord and this
Lease shall continue in full force and effect except as hereinafter set forth.
(b) If the Premises, or that portion of the Building the use of which
materially affects Tenant's Intended Use, are partially damaged or rendered
partially unusable by fire or other casualty, at Landlord's option, the damages
thereto may be repaired by and at the expense of Landlord (to the extent of
insurance proceeds received) and Landlord's payment of the applicable deductible
if Landlord is so required as a condition to obtaining insurance proceeds) and
in the case of damage to the Premises, the Rent, until such repair of the
Premises shall be substantially completed, shall be apportioned from the day
following the casualty according to the part of the Premises which is usable for
Tenant's Intended Use. Landlord shall not have the right to terminate this Lease
if in Landlord's reasonable opinion, the Premises and the applicable portion of
the Building can be restored to its original condition within one hundred eighty
(180) days. If in Landlord's reasonable opinion, as expressed in a notice to
Tenant given within forty-five (45) days after such destruction, the Premises
and the applicable portion of the Building cannot be restored to its original
condition within one hundred eighty (180) days, or if the Premises and the
applicable portion of the Building are not restored within two hundred seventy
(270) days of the casualty (subject to Force Majeure Delays), or if more than
fifty percent (50%) of the Premises are destroyed, Tenant shall have the right
to cancel this Lease by providing written notice to Landlord of such
cancellation within ten (10) days of receipt of such notice from Landlord, and
such termination shall be effective sixty (60) days after the date of such
notice, provided, however, that Landlord may nullify any such notice by
completing such restoration and rebuilding within such sixty (60) day period.
Notwithstanding the foregoing, Landlord shall be obligated to restore (provided
and to the extent insurance proceeds are received by Landlord) in the event the
partial damage to the Premises affects less than thirty-five percent (35%) of
the Premises and less than thirty percent (30%) of that portion of the Building
that materially affects Tenant's intended use.
(c) In the event the Premises are totally destroyed, or partially
destroyed to the extent of twenty-five percent (25%) of the Premises, during the
last twelve (12) months of the Term or the last twelve (12) months of any
extensions or renewals thereof, then Tenant shall have the right to cancel this
Lease by providing written notice to Landlord of such cancellation within ten
(10) days of such fire or destruction, and such termination shall be effective
thirty (30) days after the date of such notice.
(d) If the Premises are totally damaged or rendered wholly unusable by
fire or other casualty, the Rent shall be paid up to the time of the casualty
and thenceforth shall cease until the date when the Premises shall have been
repaired and restored by Landlord, subject to Landlord's right to elect not to
restore the same as hereinafter provided.
(e) If the Premises is rendered wholly unusable (whether or not the
Premises are damaged in whole or in part) or if the Building shall be so damaged
that Landlord shall decide to demolish it or to rebuild it then, in any of such
events, Landlord or Tenant may elect to terminate this Lease by written notice
to the other given within thirty (30) days after such fire or casualty
specifying a date for the expiration of this Lease, which date shall not be more
than sixty (60) days after the giving of such notice, and upon the date
specified in such notice, the term of this Lease shall expire as fully and
completely as if such date were the date set forth above for the expiration of
this Lease and Tenant shall forthwith quit, surrender and vacate the Premises
without prejudice, subject, however, to the rights and remedies of
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either party against the other under the Lease provisions in effect prior to
such termination, and any rent owing shall be paid up to such date and any
payments of rent made by Tenant which were on account of any period subsequent
to such date shall be returned to Tenant. Unless either party shall serve a
termination notice as provided for herein, Landlord shall proceed with due
diligence to restore, repair and replace the Premises and the Building to the
same condition as they were in as of the Commencement Date (to the extent of
insurance proceeds received) subject to delays due to adjustment or insurance
claims, labor troubles and causes beyond Landlord's control, including without
limitation, Force Majeure Delays and payment by the responsible party of the
applicable deductible) and the rent shall abate on a pro rata basis according to
the extent the full use and enjoyment of the Premises are rendered untenantable
by reason of such damage.
(f) Nothing contained hereinabove shall relieve Tenant from liability
that may exist as a result of damage from fire or other casualty, except as may
be expressly provided otherwise in Section 20.2.
20.2 SUBORDINATION. Landlord shall secure an appropriate clause in, or
endorsement to, any fire and extended coverage insurance policy covering the
Building, pursuant to which its insurance companies (i) waive all right of
claims and/or subrogation against Tenant with respect to losses payable under
such policies and/or (ii) agree that such policies shall not be invalidated
should the insured waive in writing prior to a loss any or all rights of
recovery against any party for losses covered by such policies, and having
obtained either of such clauses or endorsements, Landlord agrees that it will
not make any claim against or seek to recover from Tenant for any loss or damage
to the Building covered by such fire and extended coverage insurance to the
extent that the entire loss or damage has been paid by the insurance company and
collected by Landlord. If, as a condition of making either of the aforesaid
clauses or endorsements available to Landlord, the insurance carrier of Landlord
shall require the payment of an additional premium, over and above the normal
and standard premium for the coverage involved, Landlord shall pay the
additional premium cost or charge. Landlord shall carry throughout the term of
this Lease (i) all-risk full replacement cost (or in such lower amount as the
then holder of the first mortgage shall permit) fire and extended coverage
insurance on the Building and all realty improvements therein, including a rent
loss endorsement for at least twelve (12) months, (ii) comprehensive general
liability insurance with respect to all common areas of the Building in an
amount not less than that required of Tenant with respect to the Premises, and
(iii) workers' compensation equal to the statutory requirements or that required
of Tenant under this Lease with respect to its employees.
20.3 TYPES OF INSURANCE. Tenant acknowledges that Landlord will not carry
insurance on Tenant's personal property, contents, furniture and/or furnishings
or any fixtures or equipment, improvements, or appurtenances removable by Tenant
and agrees that Landlord will not be obligated to repair any damage thereto or
replace the same, for any reason whatsoever. Tenant shall, throughout the term
of this Lease, maintain at its own cost and expense, (a) insurance against loss
or damage by fire and such other risks and hazards as are insurable under
present and future standard forms of fire and extended coverage insurance
policies (including, without limitation, protection against vandalism, malicious
mischief and sprinkler, equipment, boiler and machinery insurance against
leakage or explosion), to the personal property, furniture, furnishings and
fixtures belonging to Tenant located in the Premises, in an amount adequate to
cover actual replacement cost, which insurance policies may include a deductible
in such amount as is then standard in insurance policies insuring property
similar to Tenant's property, (b) comprehensive general liability insurance in
the amounts set forth in Section 20.5, (c) worker's compensation and employer's
liability insurance in the amounts set forth in Section 20.5, and (d) umbrella
liability insurance in the amounts set forth in Section 20.5. All insurance
required to be maintained by Tenant under this Lease shall be reasonably
approved by Landlord and shall be provided by insurance companies with an
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A.M. Best Rating of "A:X" or better and who are licensed by the state of New
York. Notwithstanding the foregoing, the insurance required to be maintained by
Tenant under this Lease may be provided in the form of a blanket insurance
policy, provided that Landlord's interests are not impaired thereby. Prior to
Tenant's taking occupancy of, or undertaking work in, any portion of the
Premises, and thereafter not less than thirty (30) days prior to the expiration
of any policy or policies, evidence of the issuance, or renewal, of such policy
or policies, or a new certificate for the initial or renewal period, as the case
may be, shall be delivered to Landlord. Such evidence or certificate shall
clearly state that the insurance coverage applies in New York State. Such
insurance shall name Landlord, Landlord's controlled subsidiaries, and
Landlord's agents, officers, directors, members, servants and employees, and the
IDA and the holders of any mortgages encumbering the Building, as additional
insureds on a primary basis and shall contain an agreement on the part of the
insurance company (A) not to cancel such policy or coverage, or change the terms
of such coverage, without thirty (30) days prior written notice to Landlord and
(B) that no act or omission of any named insureds will invalidate the policy as
to the other named insureds. In the event of the occurrence of any fire or other
casualty insured against by Tenant's policy, Landlord, at the time of the
occurrence of any such event, when called on to do so by Tenant, will by
appropriate written instrument, assign to Tenant all of Landlord's right, title
and interest in and to such insurance proceeds. Tenant agrees to look solely to
its insurance company for payment for any loss or damage to its property, and
not to make any claim against, or seek to recover from, Landlord, its officers,
directors, members, servants, agents or employees for such loss or damage,
whether or not the loss or damage was due to the acts or omissions of Landlord
or its officers, directors, members, servants, agents or employees. Upon the
occurrence of any casualty insured against, Tenant shall have full authority to,
and shall, take all necessary measures to negotiate, compromise or adjust any
loss under Tenant's policy. Tenant hereby waives any and all right of recovery
which it might otherwise have against Landlord, its employees and servants,
agents and employees for loss or damage to Tenant's furniture, furnishings,
fixtures and personal property. Tenant, at its cost and expense, will cause its
insurance carrier to include, in each policy of insurance that Tenant is, by the
terms and provisions of this Lease, required to obtain or which is obtained by
Tenant, an endorsement (i) waiving the right of subrogation against Landlord and
Landlord's agents, officers, directors, members, servants and mortgagees with
respect to losses payable under such policies or (ii) agreeing that such
policies shall not be invalidated should the insured waive in writing prior to a
loss any or all right of recovery against any party for losses covered by such
policies.
20.4 WAIVER. Subject to the foregoing provisions of this Article 12, Tenant
hereby expressly waives the provisions of Section 227 of the Real Property Law,
or any other law or statute hereafter enacted of similar import, and agrees that
the foregoing provisions of this Article shall govern and control in lieu
thereof.
20.4 REQUIRED INSURANCE. Tenant shall maintain at its own cost and expense:
(a) Comprehensive General Liability Insurance covering the Premises on
an occurrence basis with minimum limits of liability in an amount equal to One
Million ($1,000,000.00) Dollars per occurrence and Two Million ($2,000,000.00)
Dollars aggregate per location, with a separate limit of Two Million
($2,000,000.00) Dollars for Products/Completed Operations per occurrence, and
Two Hundred Fifty Thousand ($250,000.00) Dollars with respect to damage to
property by water or otherwise, such policy shall name Landlord, the holder of
any mortgage and/or over, ground or master lease on all or any portion of
Landlord's interest in the Project and/or Building, as additional named insureds
to the extent of Tenant's acts or omissions or the acts or omissions of Tenants'
contractors, agents, its and their employees and its guests, customers or
invitees and shall provide that the same may not be cancelled or terminated
without at least thirty (30) days written notice to Landlord and the additional
named insureds by the insurance company issuing such policy, and that no act or
omission to act of Tenant shall invalidate such insurance as to Landlord and the
other additional named insureds;
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(b) Worker's Compensation and Employer's Liability Insurance in
accordance with the laws of the State of New York;
(c) Umbrella liability insurance with maximum limits of liability in an
amount equal to Five Million ($5,000,000.00) Dollars per occurrence with a Five
Million ($5,000,000.00) Dollar minimum aggregate; and
When required by Landlord, such other insurance against other insurable
hazards and in such amounts as may from time to time be commonly and customarily
insured against and are generally available for tenants in comparable
first-class projects in Nassau County, New York.
21. WAIVER OF SUBROGATION.
21.1 WAIVER. Landlord and Tenant hereby waives its rights against the other with
respect to any claims or damages or losses which are caused by or result from
(a) damage insured against under any insurance policy carried by it pursuant to
the provisions of this Lease and enforceable at the time of such damage or loss,
or (b) damage which would have been covered under any insurance required to be
obtained and maintained by it under Section 20 of this Lease had such insurance
been obtained and maintained as required therein. The foregoing waiver shall be
in addition to, and not a limitation of, any other waivers or releases contained
in this Lease.
21 .2 WAIVER OF INSURERS. Landlord and Tenant shall cause each insurance policy
required to be obtained by it pursuant to Section 20 to provide that the insurer
waives all rights of recovery by way of subrogation against the other in
connection with any claims, losses and damages covered by such policy. If
Landlord elects to maintain the All Risk insurance pursuant to Section 20.4
above, then Landlord shall cause such insurance policy to provide that the
insurer waives all rights of recovery by way of subrogation against Tenant in
connection with any claims, losses and damages covered by such policy. If Tenant
fails to maintain property insurance required hereunder, such insurance shall be
deemed to be self-insured with a deemed full waiver of subrogation as set forth
in the immediately preceding sentence.
22. TENANT'S DEFAULT AND LANDLORD'S REMEDIES.
22.1 TENANT'S DEFAULT. The occurrence of any one or more of the following events
shall constitute an "EVENT OF DEFAULT" under this Lease by Tenant:
(a) the failure by Tenant to make any payment of Rent or any other
payment required to be made by Tenant hereunder when due, which such failure
shall continue for a period of five (5) business days, or more than two (2)
times in any twelve (12) month period, after written notice thereof from
Landlord to Tenant (written notice may be by regular monthly invoices
transmitted by a managing agent);
(b) any default by Tenant which is specified as such in Section 20
above;
(c) the failure by Tenant to observe or perform any of the express or
implied covenants or provisions of this Lease to be observed or performed by
Tenant, other than as specified in Sections 22.1(a), (b) or (c) above, where
such failure shall continue for a period of twenty (20) days after written
notice thereof from Landlord to Tenant; provided, however, that if the nature of
Tenant's default is such that more than twenty-five (25) days are reasonably
required for its cure, then Tenant shall not be deemed to be in default if
Tenant shall commence such cure within said twenty-five (25) day period and
thereafter
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diligently prosecute such cure to completion within a commercially reasonable
time frame not to exceed one hundred twenty (120) days; and
(d) (i) the making by Tenant of any general assignment for the benefit
of creditors (ii) the filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless in the case of a petition filed against the
Tenant the same is dismissed within ninety (90) days), (iii) the appointment of
a trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease where possession
is not restored to Tenant within ninety (90) days, or (iv) the attachment
execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease where such seizure
is not discharged within.
22.2 LANDLORD'S REMEDIES; TERMINATION. In the event of any such default by
Tenant, in addition to any other remedies available to Landlord under this
Lease, at law or in equity, Landlord shall have the immediate option to
terminate this Lease and all rights of Tenant hereunder. In the event that
Landlord shall elect to so terminate this Lease, then Landlord may recover from
Tenant:
(a) the amount of any unpaid rent which had been earned at the time of
such termination; plus
(b) the amount by which the unpaid rent which would have been earned
after termination until the time of award exceeds the amount of such rental loss
that Tenant proves could have been reasonably avoided; plus
(c) the amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of such rental loss that Tenant
proves could be reasonably avoided discounted at the rate of six percent (6%);
plus
(d) The amount of any rent abatement under Section 3.1 hereof, provided
that the termination of this Lease occurs prior to the fifth (5th) anniversary
of the Commencement Date.
(e) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which, in the ordinary course of things, would be likely to
result therefrom including, but not limited to: unamortized improvement costs;
attorneys' fees; unamortized brokers' commissions; the costs of refurbishment,
alterations, renovation and repair of the Premises; and removal (including the
repair of any damage caused by such removal) and storage (or disposal) of
Tenant's personal property, equipment, fixtures, Tenant Changes, and any other
items which Tenant is required under this Lease to remove but does not remove.
Landlord shall have no duty to mitigate its damages.
22.3 LANDLORD'S REMEDIES; RE-ENTRY RIGHTS. In the event of any such default by
Tenant, in addition to any other remedies available to Landlord under this
Lease, at law or in equity, Landlord shall also have the right as permitted by
applicable law, with or without terminating this Lease, to re-enter the Premises
and remove all persons and property from the Premises; such property may be
removed, stored and/or disposed of pursuant to Section 12.4 of this Lease or any
other procedures permitted by applicable law. No re-entry or taking possession
of the Premises by Landlord pursuant to this Section 22.3, and no acceptance of
surrender of the Premises or other action on Landlord's part, shall be construed
as an election to terminate this Lease unless a written notice of such intention
be given to Tenant or unless the termination thereof be decreed by a court of
competent jurisdiction.
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22.4 LANDLORD'S REMEDIES; CONTINUATION OF LEASE. In the event of any such
default by Tenant, in addition to any other remedies available to Landlord under
this Lease, at law or in equity, Landlord shall have the right to continue this
Lease in full force and effect, whether or not Tenant shall have abandoned the
Premises. In the event Landlord elects to continue this Lease in full force and
effect pursuant to this Section 22.4, then Landlord shall be entitled to enforce
all of its rights and remedies under this Lease, including the right to recover
rent as it becomes due. Landlord's election not to terminate this Lease pursuant
to this Section 22.4 or pursuant to any other provision of this Lease, at law or
in equity, shall not preclude Landlord from subsequently electing to terminate
this Lease or pursuing any of its other remedies.
22.5 LANDLORD'S RIGHT TO PERFORM. Except as specifically provided otherwise in
this Lease, all covenants and agreements by Tenant under this Lease shall be
performed by Tenant at Tenant's sole cost and expense and without any abatement
or offset of rent. If Tenant shall fail to pay any sum of money (other than
Rent) or perform any other act on its part to be paid or performed hereunder and
such failure shall continue for ten (10) days with respect to monetary
obligations (or twenty (20) days with respect to non-monetary obligations) after
Tenant's receipt of written notice thereof from Landlord, Landlord may, without
waiving or releasing Tenant from any of Tenant's obligations, make such payment
or perform such other act on behalf of Tenant. All sums so paid by Landlord and
all necessary incidental costs incurred by Landlord in performing such other
acts shall be payable by Tenant to Landlord within twenty (20) days after demand
therefore as additional rent.
22.6 INTEREST. If any monthly installment of Annual Rent, or any other amount
payable by Tenant hereunder is not received by Landlord by the date when due
including applicable grace periods, it shall bear interest at the Interest Rate
set forth in Section 1 .9 of the Summary from the date due until paid. All
interest, and any late charges imposed pursuant to Section 22.7 below, shall be
considered additional rent due from Tenant to Landlord under the terms of this
Lease.
22.7 LATE CHARGES. If any monthly installment of Annual Rent or any other amount
payable by Tenant hereunder is not received by Landlord by the due date thereof
including applicable grace periods, and such failure shall continue for three
(3) business days after the date the same is due and payable, Tenant shall pay
to Landlord an additional sum of four percent (4%) of the overdue amount as a
late charge, but in no event more than the maximum late charge allowed by law.
22.8 RIGHTS AND REMEDIES CUMULATIVE. All rights, options and remedies of
Landlord contained in this Section 22 and elsewhere in this Lease shall be
construed and held to be cumulative, and no one of them shall be exclusive of
the other, and Landlord shall have the right to pursue any one or all of such
remedies or any other remedy or relief which may be provided by law or in
equity, whether or not stated in this Lease. Nothing in this Section 22 shall be
deemed to limit or otherwise affect Tenant's indemnification of Landlord
pursuant to any provision of this Lease.
22.9 TENANT'S WAIVER OF REDEMPTION. Tenant hereby waives and surrenders for
itself and all those claiming under it, including creditors of all kinds, (a)
any right and privilege which it or any of them may have under any present or
future law to redeem any of the Premises or to have a continuance of this Lease
after termination of this Lease or of Tenant's right of occupancy or possession
pursuant to any court order or any provision hereof, and (b) the benefits of any
present or future law which exempts property from liability for debt or for
distress for rent.
23. SUBORDINATION.
At the request of Landlord or any mortgagee of a mortgage or a beneficiary of a
deed of trust now or hereafter encumbering all or any portion of the Premises,
or any lessor of any ground or master lease now
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or hereafter affecting all or any portion of the Premises, this Lease shall be
subject and subordinate at all times to such ground or master leases (and such
extensions and modifications thereof), and to the lien of such mortgages and
deeds of trust (as well as to any advances made thereunder and to all renewals,
replacements, modifications and extensions thereof): Notwithstanding the
foregoing, Landlord shall have the right to subordinate or cause to be
subordinated any or all around or master leases or the lien of any or all
mortgages or deeds of trust to this Lease. Landlord agrees to provide Tenant
with nondisturbance agreement(s) in favor of Tenant from any master lessor or
any mortgage holders or deed of trust beneficiaries under any master lease or
mortgage or deed of trust affecting the Premises that exists as of the
Commencement Date hereof or which comes into existence at any time after the
date of execution of this Lease but prior to the expiration of the Term in
consideration of, and as a condition precedent to, Tenant's agreement to
subordinate this Lease to such future master lease or the lien of any such
future mortgage or deed of trust pursuant to the foregoing provisions of this
Section 23. Subject to the nondisturbance agreement(s) described above, in the
event that any master lease terminates for any reason or any mortgage or deed of
trust is foreclosed or a conveyance in lieu of foreclosure is made for any
reason, at the election of Landlord's successor in interest, Tenant shall attorn
to and become the tenant of such successor. Tenant hereby waives its rights
under any current or future law which gives or purports to give Tenant any right
to terminate or otherwise adversely affect this Lease and the obligations of
Tenant hereunder in the event of any such foreclosure proceeding or sale.
Subject to the foregoing, Tenant covenants and agrees to execute and deliver to
Landlord within twenty (20) days after receipt of written demand by Landlord and
in the form reasonably required by Landlord, any additional documents evidencing
the priority or subordination of this Lease with respect to any such master
lease or the lien of any such mortgage or deed of trust or Tenant's agreement to
attorn. If, in connection with Landlord's obtaining or entering into any
financing or ground lease for any portion of the Premises, the lender or ground
lessor shall request modifications to this Lease, Tenant shall, within sixty
(60) days after request therefor, execute an amendment to this Lease including
such modifications, provided such modifications are reasonable, do not increase
the obligations of Tenant hereunder, or adversely affect the leasehold estate
created hereby or Tenant's rights hereunder.
Landlord shall obtain an executed non-disturbance agreement from the holder of
the mortgage currently encumbering the Project in the form annexed hereto as
Exhibit H within sixty (60) days after the Effective Date; provided, however,
that in the event said holder charges Landlord for costs including, without
limitation, attorneys fees to negotiate changes requested by Tenant (other than
the changes reflected on Exhibit H), Tenant shall pay said amounts as Additional
Rent under this Lease.
24. ESTOPPEL CERTIFICATE.
Within twenty (20) days following Landlord's written request, Tenant shall
execute and deliver to Landlord an estoppel certificate certifying: (a) the
Commencement Date; (b) that this Lease is unmodified and in full force and
effect (or, if modified, that this Lease is in full force and effect as
modified, and stating the date and nature of such modifications); (c) the date
to which the Rent and other sums payable under this Lease have been paid; (d)
that there are not, to the best of Tenant's knowledge, any defaults under this
Lease by either Landlord or Tenant, except as specified in such certificate; (e)
all work to be completed by Landlord shall have been completed and performed;
(f) the amount of any security deposit; (g) whether or not Landlord has
delivered a Landlord's Notice (as hereinafter defined) pursuant to Section 30
hereof, and (h) such other matters as are reasonably requested by Landlord. Any
such estoppel certificate delivered pursuant to this Section 25.1 may be relied
upon by any mortgagee, beneficiary, purchaser or prospective purchaser of any
portion of the Premises, as well as their assignees.
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25. QUIET ENJOYMENT.
Landlord covenants and agrees with Tenant that, upon Tenant performing all of
the covenants and provisions on Tenant's part to be observed and performed under
this Lease (including payment of Rent hereunder), Tenant shall and may peaceably
and quietly have, hold and enjoy the Premises in accordance with and subject to
the terms and conditions of this Lease as against all persons claiming by,
through or under Landlord.
26. TRANSFER OF LANDLORD'S INTEREST.
The term "Landlord" as used in this Lease, so far as covenants or obligations on
the part of the Landlord are concerned, shall be limited to mean and include
only the owner or owners, at the time in question, of the fee title to, or a
lessee's interest in a ground lease of, the Premises. In the event of any
transfer or conveyance of any such title or interest (other than a transfer for
security purposes only), the transferee shall assume all of the Landlord's
obligations under this Lease and upon such assumption the transferor shall be
automatically relieved of all covenants and obligations on the part of Landlord
contained in this Lease accruing after the date of such transfer or conveyance
27. LIMITATION ON LANDLORD'S LIABILITY.
Notwithstanding anything contained in this Lease to the contrary, the
obligations of Landlord under this Lease (including any actual or alleged breach
or default by Landlord) do not constitute personal obligations of the individual
partners, members, managers, directors, officers or shareholders of Landlord or
Landlord's partners or affiliates, and Tenant shall not seek recourse against
the individual partners, members, managers, directors, officers or shareholders
of Landlord or Landlord's partners or affiliates, or any of their personal
assets for satisfaction of any liability with respect to this Lease. In
addition, in consideration of the benefits accruing hereunder to Tenant and
notwithstanding anything contained in this Lease to the contrary, Tenant hereby
covenants and agrees for itself and all of its successors and assigns that the
liability of Landlord for its obligations under this Lease (including any
liability as a result of any actual or alleged failure, breach or default
hereunder by Landlord), shall be limited solely to, and Tenant's and its
successors' and assigns' sole and exclusive remedy shall be against, Landlord's
interest in the Premises, and no other assets of Landlord.
28. MISCELLANEOUS.
28.1 GOVERNING LAW. This Lease shall be governed by, and construed pursuant to,
the laws of the State of New York.
28.2 SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 14 above, and
except as otherwise provided in this Lease, all of the covenants, conditions and
provisions of this Lease shall be binding upon, and shall inure to the benefit
of, the parties hereto and their respective heirs, personal representatives and
permitted successors and assigns; provided, however, no rights shall inure to
the benefit of any Transferee of Tenant unless the Transfer to such Transferee
is made in compliance with the provisions of Section 14, and no options or other
rights which are expressly made personal to the original Tenant or in any rider
attached hereto shall be assignable to or exercisable by anyone other than the
original Tenant.
28.3 NO MERGER. The voluntary or other surrender of this Lease by Tenant or a
mutual termination thereof shall not work as a merger and shall, at the option
of Landlord, either (a) terminate all or any existing subleases, or (b) operate
as an assignment to Landlord of Tenant's interest under any or all such
subleases.
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28 .4 PROFESSIONAL FEES. If either Landlord or Tenant should bring suit against
the other with respect to this Lease, including for unlawful detainer or any
other relief against the other hereunder, then all costs and expenses incurred
by the prevailing party therein (including, without limitation, its actual
appraisers', accountants', attorneys' and other professional fees, expenses and
court costs), shall be paid by the other party.
28.5 WAIVER. The waiver by either party of any breach by the other party of any
term, covenant or condition herein contained shall not be deemed to be a waiver
of any subsequent breach of the same or any other term, covenant and condition
herein contained, nor shall any custom or practice which may become established
between the parties in the administration of the terms hereof be deemed a waiver
of, or in any way affect, the right of any party to insist upon the performance
by the other in strict accordance with said terms. No waiver of any default of
either party hereunder shall be implied from any acceptance by Landlord or
delivery by Tenant (as the case may be) of any rent or other payments due
hereunder or any omission by the non-defaulting party to take any action on
account of such default if such default persists or is repeated, and no express
waiver shall affect defaults other than as specified in said waiver. The
subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a
waiver of any preceding breach by Tenant of any term, covenant or condition of
this Lease other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent.
28.6 PRIOR AGREEMENTS; AMENDMENTS. This Lease, including the Summary and all
Exhibits and Riders attached hereto contains all of the covenants, provisions,
agreements, conditions and understandings between Landlord and Tenant concerning
the Premises and any other matter covered or mentioned in this Lease, and no
prior agreement or understanding, oral or written, express or implied,
pertaining to the Premises or any such other matter shall be effective for any
purpose. No provision of this Lease may be amended or added to except by an
agreement in writing signed by the parties hereto or their respective successors
in interest. The parties acknowledge that all prior agreements, representations
and negotiations are deemed superseded by the execution of this Lease to the
extent they are not expressly incorporated herein.
28.7 SEPARABILITY. The invalidity or unenforceability of any provision of this
Lease (except for Tenant's obligation to pay Rent) shall in no way affect,
impair or invalidate any other provision hereof, and such other provisions shall
remain valid and in full force and effect to the fullest extent permitted by
law.
28.8 ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of a
lesser amount than the rent payment herein stipulated shall be deemed to be
other than on account of the rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or pursue any
other remedy provided in this Lease. Tenant agrees that each of the foregoing
covenants and agreements shall be applicable to any covenant or agreement either
expressly contained in this Lease or imposed by any statute or at common law.
28.9 FORCE MAJEURE. In the event that Landlord shall be delayed or hindered in
or prevented from the performance of any act required hereunder by reason of
strikes, lock-outs, labor troubles, inability to procure materials, failure of
power, governmental moratorium or other governmental action or inaction
(including failure, refusal or delay in issuing permits, approvals and/or
authorizations), injunction or court order, riots, insurrection, war, fire,
earthquake, flood or other natural disaster or other reason of a like nature not
the fault of Landlord (herein collectively, "FORCE MAJEURE DELAYS"), then
performance of such act shall be excused for the period of the delay and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay.
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28.10 MUNICIPAL INCENTIVES. Landlord shall, at no cost and expense to itself,
reasonably cooperate with Tenant in securing municipal incentives that may be
available to Tenant; provided, however, that such incentives shall not be in
conflict with or result in a default under any municipal program to which the
Landlord is entitled or is participating, including, but not limited to, the
PILOT Agreement.
28.11 PARKING. Landlord shall make available two hundred fifty-five (255)
parking spaces for Tenant's non-exclusive use. Common parking areas shall be
provided at no additional cost for use by Tenant, its personnel and visitors in
common with such other parties as Landlord shall permit to use the same on a
"first come, first served" basis. Landlord reserves the right, at all times
during the term hereof, to designate and redesignate such parking areas and to
prescribe the use thereof and to promulgate and enforce rules and regulations
with respect to the same. Tenant, its permitted assignees and subtenants,
personnel and visitors shall not, at any time, park trucks or delivery vehicles
in any of the areas designated for automobile parking. Tenant shall not be
entitled to any minimum or maximum number of parking spaces or areas except
thirty-five (35) spaces shall be designated for Tenant's exclusive use at such
locations as depicted on the parking diagram annexed hereto and made a part
hereof as Exhibit I. Landlord shall have no responsibility to police or
otherwise insure Tenant's use thereof. All parking spaces and parking areas
shall be unattended and shall be utilized at the vehicle owner's own risk.
Landlord shall not be liable for any injury to persons or property or loss by
theft, or otherwise, of any vehicle or its contents. Nothing herein contained
shall prevent or preclude Landlord from reasonably reserving certain parking
spaces or areas to be used on a designated or reserved basis by the parties
designated by Landlord.
28.12 BUILDING ACCESS. Tenant shall have access to the Premises 24 hours per
day, 7 days per week. Tenant shall be issued keys to allow Tenant entry into the
Building. Tenant shall be issued key cards in an amount sufficient for Tenant's
Intended Use (subject to occupancy limits as prescribed by law), which cards
will allow Tenant entry into the Common Areas of the Building and to Tenant's
private exterior access doors. Any additional or replacement access cards shall
be issued at Tenant's sole cost and expense.
28.13 FIRE SAFETY COMPLIANCE. Landlord represents that, as of the date hereof,
it has not received written notice that the Premises or the Building are not in
compliance with applicable fire safety guidelines, laws, rules, regulations and
ordinances. Landlord further represents that as of the Commencement Date the
Premises and the Building shall be in material compliance with all applicable
fire safety guidelines, laws, rules, regulations, and ordinances. 28.14
COUNTERPARTS. This Lease may be executed in one or more counterparts, each of
which shall constitute an original and all of which shall be one and the same
agreement.
29. IDA LEASE.
Tenant acknowledges and agrees that notwithstanding anything to the contrary in
this Lease: (i) the fee title owner of the Project is the IDA, and that
Landlord's interest therein is its interest under the IDA Master Lease, (ii)
Tenant's use and occupancy of the Premises will be subject and subordinate to
the terms and conditions of the IDA Master Lease, (iii) this Lease, Tenant's
rights hereunder, and Tenant's ability to assign or sublease are subject to the
approval of the IDA, (iv) contemporaneously herewith, Tenant shall execute and
deliver to Landlord the IDA Compliance Agreement which is attached hereto as
Exhibit J, and (v) Tenant shall take such other actions and enter into such
other documents as the IDA shall reasonably request with respect to the IDA
Master Lease.
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30. PUBLICITY. Neither party (or its broker) shall publicize by press release or
otherwise, this Lease or any terms thereof, without the prior written consent of
the other party.
31. OPTION TO RENEW.
31.1 RENEWAL OPTION. The Tenant shall have two (2) successive options
(separately referred to as the "FIRST RENEWAL Option" and the "SECOND RENEWAL
OPTION," and collectively referred to as the "OPTIONS" or "RENEWAL OPTIONS") to
extend the Term of this Lease for two (2) successive five (5) year renewal
periods (separately referred to as the "FIRST RENEWAL TERM" and the "SECOND
RENEWAL TERM," and collectively referred to as the "RENEWAL TERMS") upon the
terms and conditions set forth herein.
31.2 FIRST RENEWAL OPTION.
(a) The First Renewal Term shall commence at midnight on the Expiration
Date and shall expire at midnight on the fifth (5th) anniversary thereof (the
"FIRST RENEWAL EXPIRATION DATE"), or such earlier date upon which this Lease may
be terminated as herein provided.
(b) The First Renewal Option may be exercised only by Tenant giving
Landlord written notice (the "FIRST RENEWAL NOTICE") of such exercise at least
nine (9) months prior to the Expiration Date of the initial Term, provided,
however, that the First Renewal Notice shall be validly and effectively given
only if, on the date that Tenant shall exercise the First Renewal Option (the
"FIRST EXERCISE DATE"): (i) this Lease shall not have been previously terminated
or cancelled, and (ii) there shall be no uncured monetary or material
non-monetary Event of Default by Tenant TIME SHALL BE OF THE ESSENCE with
respect to the giving of the First Renewal Notice by Tenant to Landlord.
(c) Notwithstanding anything to the contrary contained in this Section
31.2, if, on the commencement of the First Renewal Term there shall be an
uncured monetary or material non-monetary Event of Default by Tenant, Landlord,
in Landlord's sole and absolute discretion, may elect, by written notice to
Tenant, to void Tenant's exercise of the First Renewal Option, in which case
Tenant's exercise of the First Renewal Option shall be of no force or effect,
and the Term shall end on the Expiration Date of the initial Term of this Lease,
unless sooner cancelled or terminated pursuant to the provisions of this Lease
or by law.
(d) If Tenant shall validly exercise the First Renewal Option in
accordance with the provisions of this Section 31.2, then this Lease shall be
extended for the First Renewal Term upon all of the same terms, covenants and
conditions contained in this Lease except that during the First Renewal Term,
the Annual Rent shall be as computed in accordance with Section 31.4, and from
and after the First Exercise Date but subject to the provisions of Section
31.2(c) all references in this Lease to the "Expiration Date" shall be deemed to
refer to the last date of the First Renewal Term and all references in this
Lease to the "Term" shall be deemed to include the First Renewal Term.
31.3 SECOND RENEWAL OPTION.
(a) If the First Renewal Option has been duly exercised, the Tenant
shall have the further right to thereafter exercise the Second Renewal Option
upon the terms and conditions set forth herein.
(b) The Second Renewal Term shall commence at midnight on the First
Renewal Expiration Date and shall expire at midnight on the fifth (5th)
anniversary thereof (the "SECOND RENEWAL EXPIRATION DATE"), or such earlier date
upon which this Lease may be terminated as herein provided.
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(c) The Second Renewal Option may be exercised only by Tenant giving
Landlord written notice (the "SECOND RENEWAL NOTICE") of such exercise at least
nine (9) months prior to the First Renewal Expiration Date, provided, however,
that the Second Renewal Notice shall be validly and effectively given only if,
on the date that Tenant shall exercise the Second Renewal Option (the "SECOND
EXERCISE DATE"): (i) this Lease shall not have been previously terminated or
cancelled, and (ii) there shall be no uncured monetary or material non-monetary
Event of Default by Tenant. TIME SHALL BE OF THE ESSENCE with respect to the
giving of the Second Renewal Notice by Tenant to Landlord.
(d) Notwithstanding anything to the contrary contained in this Section
31.3, if, on the commencement of the Second Renewal Term there shall be an
uncured monetary or material non-monetary Event of Default by Tenant, then
Landlord, in Landlord's sole and absolute discretion, may elect, by written
notice to Tenant, to void Tenant's exercise of the Second Renewal Option, in
which case Tenant's exercise of the Second Renewal Option shall be of no force
or effect, and the Term shall end on the First Renewal Expiration Date, unless
sooner cancelled or terminated pursuant to the provisions of this Lease or by
law.
(e) If Tenant shall validly exercise the Second Renewal Option in
accordance with the provisions of this Section 31.3, then this Lease shall be
extended for the Second Renewal Term upon all of the same terms, covenants and
conditions contained in this Lease except that during the Second Renewal Term,
the Annual Rent shall be as computed in accordance with Section 31.4, and from
and after the Second Exercise Date, but subject to the provisions of Section
31.3(d) all references in this Lease to the "Expiration Date" shall be deemed to
refer to the last date of the Second Renewal Term and all references in this
Lease to the "Term" shall be deemed to include the Second Renewal Term.
31.4 ANNUAL RENT FOR RENEWAL.
(a) The Annual Rent payable during the Renewal Terms shall be the
Market Base Rental Rate (as hereinafter defined).
(b) Whenever used in this Lease, the term "Market Base Rental Rate"
shall mean annual net rental rate per square foot (exclusive of expense
pass-through additions) of rentable space then being charged in similar
commercial buildings similarly situated to the Building which are located in
Nassau County, New York, for space comparable to the space for which the Market
Base Rental Rate is being determined (taking into consideration use, location,
and/or floor level within the applicable building, the definition of rentable
space, leasehold improvements provided, remodeling credits or allowances
granted, quality, age and location of the applicable building, rental
concessions (such as abatement or lease assumptions), the provision of free or
paid unassigned parking, the time the particular rate under consideration became
effective, size of tenant, relative operating expenses, `triple net' provisions
as to the Warehouse Space, relative services provided, brokerage commissions,
etc.) It is agreed that executed leases or executed letter of intent to lease
comparable space located elsewhere in the Building from third parties (at arm's
length) may be used by Landlord as an indication of Market Base Rental Rate.
(c) Landlord's within ten (10) days of receipt of Tenant's First or
Second Renewal Notice, as the case may be, shall deliver to Tenant a written
notice of Landlord's determination of the Market Based Rental Rate ("LANDLORD'S
OFFER"). Within thirty (30) days after receipt of Landlord's Offer, Landlord
shall receive a notice from Tenant (the "MBRR Objection Notice"): (x) advising
Landlord that Tenant disagrees with the Landlord's initial determination of
Market Base Rental Rate, and (y) proposing a specific alternative Market Base
Rental Rate, which shall have been determined in good faith by Tenant. If
Landlord and Tenant are unable to agree upon the Market Base Rental Rate within
thirty (30) days after Landlord shall have received the MBRR Objection Notice,
then each of the parties shall, within fifteen (15) days thereafter, give notice
to the other setting forth the name and address of a real estate broker
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having at least ten (10) years commercial leasing experience in the Garden City,
New York area appointed by such party to be its designee. Each of the two
brokers shall, within thirty (30) days, determine the Market Base Rental Rate
for the Renewal Term. If the lower of the two Market Base Rental Rate
determinations is not less than ninety-five percent (95%) of the higher
determination, then the Market Base Rental Rate shall be the average of the two
determinations. If the lower of the two Market Base Rental Rate determinations
is less than ninety-five percent (95%) of the higher determination, then the two
brokers shall render separate written reports of their determinations and shall
within fifteen (15) days thereafter appoint a third real estate broker having at
least ten (10) years commercial leasing experience in the Garden City, New York
area. Such third broker shall be furnished with the written reports of the first
two brokers and any appropriate supporting documentation. The third broker shall
then select within thirty (30) days the determination of one of the two initial
brokers and shall notify Landlord and Tenant thereof. The decision of the third
broker shall be binding upon the Landlord and Tenant. The expenses of the
brokers shall be borne by the party appointing such broker. The expenses of the
third broker shall be paid one-half (1/2) by Landlord and one-half (1/2) by
Tenant.
(d) If for any reason the Market Base Rental Rate shall not have been
determined prior to the commencement of any Renewal Term, then, until the Market
Base Rental Rate shall have been determined, the Annual Rent payable for and
during any Renewal Term shall be as proposed by Landlord. Upon the final
determination of Market Base Rental Rate, an appropriate adjustment to the
Annual Rent shall be made to reflect such final determination, and Landlord or
Tenant, as the case may be, shall refund or pay to the other any overpayment or
deficiency, as the case may be in the payment of Annual Rent from the
commencement of the subject Renewal Term to the date of such final
determination.
31.5 TIME OF THE ESSENCE. TIME SHALL BE OF THE ESSENCE with regard to Tenant's
delivery of the Renewal Notice for each of the Renewal Terms. If Tenant shall
fail to deliver to Landlord the First Renewal Notice or the Second Renewal
Notice exactly as and when required under this Section, the Renewal Options
shall terminate immediately and shall have no further force or effect. The
parties acknowledge that they have fully negotiated the terms and provisions of
this Section. Tenant acknowledges and agrees that Landlord has granted Tenant
the Renewal Options in consideration for Tenant's agreement that the same shall
be strictly construed and enforced and that in the event the Renewal Options
shall terminate as provided above, Tenant shall not be entitled to any grace,
notice or cure periods otherwise provided under this Lease. 31.6 TENANT
IMPROVEMENT ALLOWANCE. For each Renewal Option exercised pursuant to this
Article 31, Landlord shall allow Tenant a $5.00 per rentable square foot tenant
improvement allowance.
32. RIGHT OF FIRST OFFER.
32.1 RIGHT OF FIRST OFFER. After the initial leasing of any Option Space (as
hereinafter defined), Landlord shall notify Tenant ("LANDLORD'S INITIAL NOTICE")
of any space in the Project (the "OPTION SPACE") that becomes available during
the Term. Landlord's Initial Notice shall include Landlord's estimate of the
Rent and additional charges and other material economic terms for said Option
Space. Within twenty (20) days of receipt of Landlord's Initial Notice, Tenant
shall have the right to notify Landlord ("TENANT'S NOTICE") in the event Tenant
desires to lease the Option Space, TIME BEING OF THE ESSENCE with respect to
such twenty (20) day period. Tenant's failure to send Tenant's Notice within the
twenty (20) day period shall be deemed to be an automatic expiration of Tenant's
right of first offer hereunder as to the Option Space identified in Landlord's
Initial Notice. If Tenant elects not to lease the Option Space, or fails to
respond to Landlord within twenty (20) days of receipt of Landlord's Initial
Notice, Landlord shall be free to lease the Option Space to any other party on
any terms Landlord elects. Thereafter, if: (i) Landlord intends to offer the
Option Space for lease to a third party for Rent, additional rent and other
material economic terms that are less than eighty-seven and one half percent
(87.5%) of the
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Option Rent Estimate ("NEW OPTION RENT ESTIMATE"), or (ii) the Option Space is
leased and subsequently becomes available again, then Landlord must re-offer the
Option Space to Tenant for the New Option Rent Estimate in accordance with this
Section, but the twenty (20) day period referred to above shall be reduced to
five (5) days.
32.2 LEASE AGREEMENT. If Tenant elects to lease the Option Space from Landlord
pursuant to the Option Rent Estimate or the New Option Rent Estimate, as the
case may be, Tenant and Landlord shall promptly enter into a lease or lease
amendment incorporating such terms with Landlord. Such terms shall include,
among other things, that the term of such lease shall be coterminous with the
term of this Lease.
32.3 NO DEFAULT. Landlord's obligation to offer the Option Space to Tenant shall
be strictly conditioned upon there being no monetary or material non-monetary
Event of Default on the part of Tenant under this Lease which at the time of
Tenant's receipt of Landlord's Initial Notice, is continuing beyond the
applicable period for notice and cure, either at the time of Landlord's receipt
of Tenant's Notice or as of the commencement of the term of the lease of the
Option Space. Notwithstanding anything to the contrary contained in this Lease,
if, on any of the dates set forth in this Section 32.3, Tenant is in monetary or
material non-monetary default under the terms of this Lease which continues
unremedied after notice and the expiration of any applicable cure period, then
Landlord, in Landlord's sole and absolute discretion, may elect, by written
notice to Tenant, to void Tenant's exercise of its right of first offer under
this Section 32, in which case Tenant's exercise shall be of no force or effect,
and Tenant's right of first offer hereunder as to the Option Space shall
automatically expire.
33. ANTENNA SYSTEM.
33.1 ANTENNA SYSTEM. Tenant, at its sole cost and expense, shall, with
Landlord's prior written consent, which consent shall not be unreasonably
withheld, conditioned, or delayed, be permitted to install a satellite dish or
telecommunications antenna ("ANTENNA SYSTEM") up to a maximum of thirty-six (36)
inches in height, at a location on the roof of the Building acceptable to
Landlord, subject to the following conditions:
(a) Tenant shall comply with all rules, regulations and policies of
Landlord regarding the installation of antennae;
(b) Tenant may not generate any income from the resale of service of
radio communications or for broadcasting or providing telecommunication services
to others;
(c) Tenant shall prepare and submit drawings and specifications showing
the proposed location of all components of the Antenna System and a detailed
description of the equipment that Tenant proposes to install and the work that
Tenant proposes to perform in connection with the installation of the Antenna
System, which shall all be subject to Landlord's approval, which approval shall
not be unreasonably withheld, conditioned, or delayed. Landlord shall, at no
cost and expense to itself, execute such documents, consents and authorizations
reasonably required in order to obtain necessary governmental approval for same;
(d) Tenant shall be required to obtain all approvals and permits from
the Department of Buildings of the Town of Hempstead and any other governmental
or quasi-governmental authority having jurisdiction;
(e) Tenant shall pay the actual reasonable expenses of Landlord and its
engineers, architects or consultants regarding the review of plans and
specifications and the supervision of the installation of the Antenna System;
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(f) Tenant shall keep and maintain the Antenna System in a safe
condition and in good order and state of repair, comply with all required
governmental approvals and applicable rules regulations and policies of Landlord
applicable to the Antenna System and its use, operation and maintenance, and
comply with all precautions and safeguards required by Landlord's insurance
company with respect to the Antenna System;
(g) At Landlord's request, and at Tenant's sole cost and expense,
Tenant shall paint the portion of the Antenna System on the roof in a color
selected by Landlord not less frequently than once every eighteen (18) months,
install and maintain such lightning rods and/or air terminals on or about the
portion of the Antenna System on the roof of the Building, as Landlord may
require, comply with all requirements of the Federal Communications Commission
or any successor thereto and any other federal, state or local governmental or
quasi-governmental authorities exercising similar jurisdiction, and obtain and
pay for promptly, as and when due, all applicable licenses and respective
copyrights, trade secrets, proprietary or other tangible or intangible property
rights of any kind whatsoever employed by Tenant in connection with the
operation of the Antenna System;
(h) Tenant shall use and operate the Antenna System in a manner that
does not in any way constitute a health hazard or danger to property or
interfere with any radio, television or other telecommunications transmissions
or receptions of Landlord or of any of Landlord's other tenants, occupants or
licensees;
(i) At Landlord's sole cost and expense, Tenant shall, at any time and
from time to time following Landlord's request, relocate the Antenna System or
any portion thereof to a location designated by Landlord;
(j) Prior to the expiration date or earlier termination of the Lease,
Tenant shall, at Tenant's sole cost and expense, remove the Antenna System and
repair any damage to the Building occasioned by reason of installation,
operation, maintenance or removal of the Antenna System;
(k) Tenant shall not install an Antenna System that is housed or
enclosed;
(l) Landlord reserves the right to charge Tenant for the cost of
electric current furnished for use in connection with the Antenna System.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties have executed this Lease as of the day
and year first above written.
"TENANT" LIFETIME BRANDS, INC.,
a Delaware corporation
duly authorized to do business in New York
By: /s/Ronald Shiftan
---------------------------------------
Name: Ronald Shiftan
---------------------------------------
Title: Vice Chairman, COO
---------------------------------------
"LANDLORD" AG METROPOLITAN ENDO, L.L.C.
a Delaware limited liability company
AG Asset Manager, Inc., a Delaware corporation,
its manager
By: /s/ Adam Schwartz
----------------------------------------
Name: Adam Schwartz
---------------------------------
Title: Vice President
--------------------------------
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