Exhibit 10.56
Lease Agreement
STANDARD FORM OF MULTI-TENANT
LEASE AND RIDER
Table of Contents
ARTICLE PAGE
1. Rent.............................................................. 1
2. Occupancy......................................................... 1
3. Tenant Alterations................................................ 1
4. Maintenance and Repairs........................................... 1
5. Window Cleaning................................................... 1
6. Requirements of Law, Fire Insurance, Floor Loads.................. 1
7. Subordination..................................................... 2
8. Property-Loss, Damage, Reimbursement, Indemnity................... 2
9. Destruction, Fire and Other Casualty.............................. 2
10. Eminent Domain.................................................... 2
11. Assignment, Mortgage, Etc......................................... 2
12. Electric Current.................................................. 2
13. Access to Premises................................................ 2
14. Vault, Vault Space, Etc........................................... 3
15. Occupancy......................................................... 3
16. Bankruptcy........................................................ 3
17. Default........................................................... 3
18. Remedies of Owner and Waiver of Redemption........................ 3
19. Fees and Expenses................................................. 3
20. Building Alterations and Management............................... 3
21. No Representation by Owner........................................ 3
22. End of Term....................................................... 4
23. Quiet Enjoyment................................................... 4
24. Failure to Give Possession........................................ 4
25. No Waiver......................................................... 4
26. Waiver of Trail by Jury........................................... 4
27. Inability to Perform.............................................. 4
28. Intentionally Omitted............................................. 4
29. Water Charges..................................................... 4
30. Sprinklers........................................................ 4
31. Elevators, Heat, Cleaning......................................... 4
32. Security.......................................................... 5
33. Captions.......................................................... 5
34. Definitions....................................................... 5
35. Adjacent Excavation-Shoring....................................... 5
36. Intentionally Omitted............................................. 5
37. Glass............................................................. 5
38. Estoppel Certificate.............................................. 5
39. Intentionally Omitted............................................. 5
40. Successors and Assigns............................................ 5
41. Additional Definitions............................................ 6
42. Term; Preparation for Occupancy and Possession.................... 7
43. Rent.............................................................. 15
44. Parking........................................................... 16
45. Tax Escalation.................................................... 17
46. Common Area Maintenance Charge.................................... 19
47. Cleaning; Trash Removal........................................... 20
48. Utilities......................................................... 20
49. Amendments for Financing; Information for Mortgagees............... 21
50. Broker............................................................ 21
51. Signs............................................................. 21
52. Holdover.......................................................... 22
53. Insurance and Indemnity........................................... 22
54. Exculpation....................................................... 24
55. Rules and Regulations............................................. 24
56. Tenant's Alterations and Maintenance.............................. 24
57. Notice............................................................ 25
58. Miscellaneous..................................................... 25
59. Amendments to Printed Form........................................ 27
60. Option to Extend.................................................. 31
61. Option For Fourth Additional Premises............................. 34
Exhibit A - Rules and Regulations
Exhibit B - Work Specifications
Exhibit C - Floor Plan
STANDARD FORM OF LOFT LEASE
The Real Estate Board of New York, Inc.
Copyright 1992. All Rights Reserved.
Reproduction in whole or in part prohibited.
AGREEMENT OF LEASE, made as of this day of May 1996, between ROBERT MARTIN
COMPANY, a New York partnership, having an office at 100 Clearbrook Road,
Elmsford, New York 10523
party of the first part, hereinafter referred to as OWNER, and CITYSCAPE CORP.,
a New York corporation, having an office at 565 Taxter Road, Elmsford, New York
10523
party of the second part, hereinafter referred to as TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner
(i) the area of the upper level shown on the floor plan containing
approximately 17,000 square feet (the "Initial Premises") in the building known
as Eight Skyline Drive, Hawthorne, New York (the "Building") for a term
commencing on the Commencement Date (as defined in Section 42(a)) and expiring
on the Expiration Date (as defined in Section 42(a)), (ii) the area of the
upper level in the Building shown on the floor plan attached hereto containing
approximately 8,200 square feet (the "First Additional Premises") for a term
commencing on the First Additional Premises Commencement Date (as defined in
Section 42(d)) and expiring on the Expiration Date, (iii) the area of the
ground floor in the Building shown on the floor plan attached hereto containing
approximately 5,710 square feet (the "Second Additional Premises") for a term
commencing on the Second Additional Premises Commencement Date (as defined in
Section 42(f)) and expiring on the Expiration Date and (iv) the area of the
ground floor in the Building shown on the floor plan attached hereto containing
approximately 4,300 square feet (the "Third Additional Premises") for a term
commencing on the Third Additional Premises Commencement Date (as defined in
Section 42(g)) and expiring on the Expiration Date, which Initial Premises,
First Additional Premises, Second Additional Premises and Third Additional
Premises combine to form the demised premises containing approximately 35,210
square feet (the Initial Premises, First Additional Premises, Second Additional
Premises and Third additional Premises are collectively hereinafter referred to
as the "demised premises", except that the demised premises shall not be deemed
to include the First Additional Premises until the First Additional Premises
Commencement Date, the Second Additional Premises until the Second Additional
Premises Commencement Date and the Third Additional Premises until the Third
Additional Premises Commencement Date).
The annual rental rate (the "Fixed Annual Rent") shall be $246,500.00 per annum
for the period commencing on the Commencement Date and shall be increased by
(i) $118,900.00 per annum for the period commencing on the First Additional
Premises Commencement Date, (ii) $82,795.00 per annum for the period commencing
on the Second Additional Premises Commencement Date and (iii) $62,350.00 per
annum for the period commencing on the Third Additional Premises Commencement
Date.
The "Rentable Area" as used herein shall mean approximately 17,000 square feet
for the period commencing on the Commencement Date and shall be increased by
(i) approximately 8,200 square feet for the period commencing on the First
Additional Premises Commencement Date, (ii) approximately 5,710 square feet for
the period commencing on the Second Additional Premises Commencement Date and
(iii) approximately 4,300 square feet for the period commencing on the Third
Additional Premises Commencement Date.
which Tenant agrees to pay in lawful money of the United States which shall be
legal tender in payment of all debts and dues, public and private, at the time
of payment, in equal monthly installments in advance on the first day of each
month during said term, at the office of Owner or such other place as Owner may
designate, without any set off or deduction whatsoever, except that Tenant
shall pay the first monthly installment(s) on the execution hereof (unless
this lease be a renewal).
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby convenant
as follows:
OCCUPANCY
1. Tenant shall pay the rent as above and as hereinafter provided.
2. Tenant shall use and occupy demised premises for general office and storage
of office files and for no other purpose.
ALTERATIONS:
3. Tenant shall make no changes in or to the demised premises of any nature
without Owner's prior written consent. Notwithstanding the foregoing, Tenant may
make nonstructural alterations provided that such alterations do not (i)
adversely affect the utility or mechanical systems servicing the Building, (ii)
require a building permit or (iii) exceed, in the aggregate, $50,000.00 in cost.
Subject to the prior written consent of Owner, and to the provisions of this
article, Tenant at Tenant's expense, may make other alterations, installations,
additions or improvements which are non-structural and which do not affect
utility services or plumbing and electrical lines, in or to the interior of the
demised premises using contractors or mechanics first approved by Owner which
approval shall not be unreasonably withheld or delayed. Tenant shall, at its
expense, before making any alterations, additions, installations or improvements
obtain all permits, approval and certificates required by any governmental or
quasi governmental bodies and (upon completion) certificates of final approval
thereof and shall deliver promptly duplicates of all such permits, approvals and
certificates to Owner. Tenant agrees to carry and will cause Tenant's
contractors and sub-contractors to carry such workman's compensation, general
liability, personal and property damage insurance as Owner may require. If any
mechanic's lien is filed against the demised premises, or the building of which
the same forms a part, for work claimed to have been done for, or materials
furnished to Tenant, whether or not done pursuant to this article, the same
shall be discharged by Tenant within ten days thereafter, at Tenant's expense,
by filing the bond required by law or otherwise. All fixtures and all paneling,
partitions, railings and like installations, installed in the premises at any
time, either by Tenant or by Owner on Tenant's behalf, shall, upon installation,
become the property of Owner and shall remain upon and be surrendered with the
demised premises unless Owner, by notice to Tenant no later than twenty days
prior to the date fixed as the termination of this lease, elects to relinquish
Owner's right thereto and to have them removed by Tenant, in which event the
same shall be removed from the demised premises by Tenant prior to the
expiration of the lease, at Tenant's expense. Nothing in this Article shall be
construed to give Owner title to or to prevent Tenant's removal of trade
fixtures, moveable office furniture and equipment, but upon removal of any such
from the premises or upon removal of other installations as may be required by
Owner, Tenant shall immediately and at its expense, repair and restore the
premises to the condition existing prior to installation and repair any damage
to the demised premises or the building due to such removal. All properly
permitted or required to be removed, by Tenant at the end of the term remaining
in the premises after Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or removed from the
premises by Owner, at Tenant's expense. (See Article 56)
REPAIRS:
4. Owner shall maintain and repair the exterior of and the public portions of
the building in a first class manner. Tenant shall, throughout the term of this
lease, take good care of the demised premises including the bathrooms and
lavatory facilities and the windows and window frames and, the fixtures and
appurtenance therein and at Tenant's sole cost and expense promptly make all
repairs thereto and to the building, whether structural or non-structural in
nature, caused by or resulting from the carelessness, omission, neglect or
improper conduct of Tenant, Tenant's servants, employees, invitees, or
licensees, and whether or not arising from such Tenant conduct or omission, when
required by other provisions of this lease, including Article 6. Tenant shall
also repair all damage to the building and the demised premises caused by the
moving of Tenant's fixtures, furniture or equipment. All the aforesaid repairs
shall be of quality or class equal to the original work or construction. If
Tenant fails, after ten days notice, to proceed with due diligence to make
repairs required to be made by Tenant, the same may be made by the Owner at the
expense of Tenant, and the reasonable and actual expenses thereof actually
incurred by Owner shall be collectible, as additional rent, after rendition of a
reasonable bill or statement therefor. If the demised premises be or become
infested with vermin caused by Tenant, Tenant shall, at its expense, cause the
same to be exterminated. Tenant shall give Owner prompt notice of any defective
condition in any plumbing, heating system or electrical lines located in the
demised premises and following such notice, Owner shall remedy the condition
with due diligence, but at the expense of Tenant, if repairs are necessitated by
damage or injury attributable to Tenant, Tenant's servants, agents, employees,
invitees or licensees as aforesaid. In performing any work in the demised
premises, Owner shall use its reasonable efforts to minimize interference with
Tenant's use of the demised premises. Except as specifically provided in Article
9 or elsewhere in this lease, there shall be no allowance to the Tenant for a
diminution of rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to business arising from Owner, Tenant or
others making or failing to make any repairs, alterations, additions or
improvements in or to any portion of the building or the demised premises or in
and to the fixtures, appliances or equipment thereof. The provisions of this
Article 4 with respect to the making of repairs shall not apply in the case of
fire or other casualty with regard to which Article 9 hereof shall apply. (See
Article 5)
WINDOW CLEANING:
5. Tenant will not clean nor require, permit, suffer or allow any window in
the demised premises to be cleaned from the outside in violation of Section 202
of the New York State Labor Law or any other applicable law, or of any other
body having or asserting jurisdiction.
REQUIREMENTS OF LAW, FIRE INSURANCE, FLOOR LOADS:
6. Prior to the commencement of the lease term, if Tenant is then in
possession, and at all times thereafter, Tenant shall, at Tenant's sole cost and
expense, promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer pursuant to law,
and all orders, rules and regulations of the New York Board of Fire
Underwriters, or the Insurance Services Office, or any similar body which shall
impose any violation, order or duty upon Owner or Tenant with respect to the
demised premises, whether or not arising out of Tenant's use or manner of use
thereof, or, with respect to the building or building systems, if arising out of
Tenant's use or manner of use of the demised premises or the building (including
the use permitted under the
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lease). Except as provided in Article 29 hereof, nothing herein shall require
Tenant to make structural repairs or alterations unless Tenant has, by its
manner of use of the demised premises or method of operation therein, violated
any such laws, ordinances, orders, rules, regulations or requirements with
respect therein. Tenant shall not do or permit any act or thing to be done in or
to the demised premises or the Building or any property adjacent thereto which
is contrary to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by or for the
benefit of Owner. Tenant shall not knowingly keep anything in the demised
premises except as now or hereafter permitted by the Fire Department, Board of
Fire Underwriters, Fire Insurance Rating Organization and other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in effect as if Tenant were not occupying
the Building. If by reason of failure to comply with the foregoing the fire
insurance rate shall, at the beginning of this lease or at any time thereafter,
be higher than it otherwise would be, then Tenant shall reimburse Owner, as
additional rent hereunder, for that portion of all fire insurance premiums
thereafter paid by Owner which shall have been charged because of such failure
by Tenant. In any action or proceeding wherein Owner and Tenant are parties, a
schedule or "make-up" or rate for the building or demised premises issued by a
body making fire insurance rates applicable to said premises shall be conclusive
evidence of the facts therein stated and of the several items and charges in the
fire insurance rates then applicable to said premises. Tenant shall not place a
load upon any floor of the demised premises exceeding the floor load per square
foot area which it was designed to carry and which is allowed by law. Owner
reserves the right to prescribe the weight and position of all safes, business
machines and mechanical equipment. Such installations shall be placed and
maintained by Tenant, at Tenant's expense, in settings sufficient, in Owner's
judgement, to absorb and prevent vibration, noise and annoyance.
(See Article 59)
SUBORDINATION:
7. This lease is subject and subordinate to all ground or underlying leases
and to all mortgages which may now or hereafter affect such leases or the real
property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument or subordination shall be required by any ground or
underlying lessor, or by any mortgagee affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Owner may request. Owner
shall use its reasonable efforts to obtain for Tenant's benefit a
non-disturbance agreement from the holder of any mortgage or ground or
underlying lease which is superior to this lease, in the form then customarily
used by the grantor of said agreement, providing in substance that so long as
Tenant is not in default under this lease beyond any applicable grace period,
then the grantor will not terminate this lease or take any action to recover
possession of the demised premises, notwithstanding any foreclosure of the
mortgage or default under, or terminate of, the ground or underlying lease. Any
fees or costs imposed by the grantor or its attorney, shall be paid by Owner.
(See Article 59)
PROPERTY -- LOSS, DAMAGE, REIMBURSEMENT, INDEMNITY:
8. Owner or its agents shall not be liable for any damage to property of
Tenant or of others entrusted to employees of the building, nor for loss of or
damage to any property of Tenant by theft or otherwise, nor for any injury or
damage to persons or property resulting from any cause whatsoever nature, unless
caused by or due to the negligence of Owner, its agents, servants or employees;
Owner or its agents shall not be liable for any damage caused by other tenants
or persons in, upon or about said building or caused by operations in connection
of any private, public or quasi public work. If at any time any windows of the
demised premises are temporarily closed, darkened or bricked up (or permanently
closed, darkened, or bricked up, if required by law) for any reason whatsoever
including, but not limited to Owner's own acts. Owner shall not be liable for
any damage Tenant may sustain thereby and Tenant shall not be entitled to any
compensation therefor nor abatement or diminution of rent nor shall the same
release Tenant from its obligations hereunder nor constitute an eviction. Owner
shall not brick up the windows any longer than is reasonably required. Tenant
shall indemnify and save harmless Owner against and from all liabilities,
obligations, damages, penalties, claims, costs and expenses for which Owner
shall not be reimbursed by insurance, including reasonable attorney's fees,
paid, suffered or incurred as a result of any breach by Tenant, Tenant's agents,
contractors, employees, invitees, or licensees, of any covenant or condition of
this lease, or the carelessness, negligence or improper conduct of the Tenant,
Tenant's agents, contractors, employees, invitees or licensees. Tenant's
liability under this lease extends to the acts and omissions of any sub-tenant,
and any agent, contractor, employee, invitee or licensee of any sub-tenant. In
case any action or proceeding is brought against Owner by reason of any such
claim, Tenant, upon written notice from Owner, will, at Tenant's expense, resist
or defend such action or proceeding by counsel approved by Owner in writing,
such approval not to be unreasonably withheld.
DESTRUCTION, FIRE AND OTHER CASUALTY:
9. (a) If the demised premises or any part thereof shall be damaged by fire
or other casualty, Tenant shall give immediate notice thereof to Owner and the
lease shall continue in full force and effect except as hereinafter set forth.
(b) If the demised premises are partially damaged or rendered partially unusable
by fire or other casualty, the damages thereto shall be repaired by and at the
expense of Owner and the rent, until such repair shall be substantially
completed, shall be apportioned from the day following the casualty according
to the part of the premises which is usable. (c) If the demised premises are
totally damaged or rendered wholly unusable by fire or other casualty, then the
rent shall be proportionately paid up to the time of the casualty and
thenceforth shall cease until the date when the premises shall have been
repaired and restored by Owner, subject to Owner's right to elect not
to restore the same as hereinafter provided. (d) If the demised premises are
rendered wholly unusable or (whether or not the demised premises are damaged in
whole or in part) if the building shall be so damaged that Owner shall decide to
demolish it or to rebuild it, then, in any of such events, Owner may elect to
terminate this lease by written notice to Tenant, given within 90 days after
such fire or casualty, specifying a date for the expiration of the lease, which
date shall not be more than 60 days after the giving of such notice, and upon
the date specified in such notice the term of this lease shall expire as fully
and completely as if such date were the date set forth above for the termination
of this lease and Tenant shall forthwith quit, surrender and vacate the premises
without prejudice however, to Owner's rights and remedies against Tenant under
the lease provisions in effect prior to such termination, and any rent owing
shall be paid up to the date of destruction and any payments of rent made by
Tenant which were on account of any period subsequent to such date shall be
returned to Tenant, unless Owner shall serve a termination notice as provided
for herein, Owner shall make the repairs and restorations under the conditions
of (b) and (c) hereof, with all reasonable expedition, subject to delays due to
adjustment of insurance claims, labor troubles and causes beyond Owner's
control. After any such casualty, Tenant shall cooperate with Owner's
restoration by removing from the premises as promptly as reasonably possible,
all of Tenant's salvageable inventory and movable equipment, furniture, and
other property. Tenant's liability for rent shall resume thirty (30) days after
written notice from Owner that the premises are substantially ready for Tenant's
occupancy. (e) Nothing contained hereinabove shall relieve Tenant from liability
that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law, Owner
and Tenant each hereby releases and waives all right of recovery against the
other or any one claiming through or under each of them by way of subrogation or
otherwise. The foregoing release and waiver shall be in force only if both
releasers' insurance policies contain a clause providing that such a release or
waiver shall not invalidate the insurance. If, and to the extent, that such
waiver can be obtained only by the payment of additional premiums, then the
party benefitting from the waiver shall pay such premium within ten days after
written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions
hereof with respect to waiver of subrogation. Tenant acknowledges that Owner
will not carry insurance on Tenant's furniture and or furnishings or any
fixtures or equipment, improvements, or appurtenances removable by Tenant and
agrees that Owner will not be obligated to repair any damage thereto or replace
the same. (f) Tenant hereby waives the provisions of Section 227 of the Rent
Property Law and agrees that the provisions of this article shall govern and
control in lieu thereof.
EMINENT DOMAIN:
10. If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purpose, then
and in that event, the terms of this lease shall cease and terminate from the
date of title vesting in such proceeding and Tenant shall have no claim for the
value of any unexpired term of said lease. Owner has not received any notices of
eminent domain affecting the Real Property.
ASSIGNMENT, MORTGAGE, ETC.:
11. Tenant, for itself, its heirs, distributees, executives, administrators,
legal representatives, sucessors and assigns, expressly covenants that it shall
not assign, mortgage or encumber this agreement, nor underlet, or suffer or
permit the demised premises or any part thereof to be used by others, without
the prior written consent of Owner in each instance. Transfer of the majority of
the stock of a corporate Tenant shall be deemed an assignment. If this lease be
assigned, or if the demised premises or any part thereof be underlet or occupied
by anybody other than Tenant, Owner may, after default by Tenant, collect rent
from the assignee, under-tenant or occupant, and apply the net amount collected
to the rent herein reserved, but no such assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the
assignee, under-tenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Owner in an assignment or underletting shall not in
any wise be construed to relieve Tenant from obtaining the express consent in
writing of Owner to any further assignment or underletting. (See Article 59)
ELECTRIC CURRENT:
12. Rates and conditions in respect to submetering or rent inclusion, as the
case may be, to be added in RIDER attached herein. Tenant covenants and agrees
that at all times its use of electric current shall not exceed the capacity of
existing feeders to the building or the risers or wiring installation and Tenant
may not use any electrical equipment which, in Owner's opinion, reasonably
exercised, will overload such installations or interfere with the use thereof by
other tenants of the building. The change at any time of the character of
electric service shall in no wise make Owner liable or responsible to Tenant,
for any loss, damages or expenses which Tenant may sustain. Notwithstanding
anything contained herein, Tenant is presently receiving electricity directly
from the utility company pursuant to Article 48. (See Article 48)
ACCESS TO PREMISES:
13. Owner or Owner's agents shall have the right (but shall not be obligated)
to enter the demised premises in any emergency at any time, and, at other
reasonable times, upon reasonable notice to examine the same and to make such
repairs, replacements and improvements as Owner may deem necessary and
reasonably desirable to any portion of the building or which Owner may elect to
perform in the premises after Tenant's failure to make repairs or perform any
work which Tenant is obligated to perform under this lease, or for the purpose
of complying with laws, regulations and other directions of governmental
authorities. Tenant shall permit Owner to use and maintain and replace pipes,
ducts and conduits in and through the demised premises and to erect new pipes,
ducts and conduits therein provided, wherever possible, whether they are within
walls or otherwise concealed. Owner may, during the progress of any work in the
demised premises, take all necessary materials and equipment into said premises
without the same constituting an eviction nor shall the Tenant be entitled to
any abatement of rent while such work is in progress nor to any damages by
reason of loss or interruption of business or otherwise. In performing such
work, Owner shall use reasonable efforts to minimize interference with Tenant's
use of the demised premises. Throughout the term hereof Owner shall have the
right to enter the demised premises at reasonable hours for the purpose of
showing the same to prospective purchasers or mortgagees of the building, and
during the last six months of the term for the purpose of showing the same to
prospective tenants and may, during said six months period, place upon the
premises the usual notices "To Let" and "For Sale" which notices Tenant
shall permit to remain thereon without molestation. If Tenant is not present to
open and permit an entry into the premises, Owner or Owner's agents may enter
the same whenever such entry may be necessary or permissible by master key or
forcibly and provided reasonable care is exercised to safeguard Tenant's
property, such entry shall not render Owner or its agents liable therefor, nor
in any event shall the obligations of Tenant hereunder be affected. If during
the last month of the term Tenant shall have removed all or substantially all
of Tenant's property therefrom. Owner may immediately enter, alter, renovate or
redecorate the demised premises without limitation or abatement of rent, or
incurring liability to Tenant for any compensation and such act shall have no
effect on this lease or Tenant's obligations hereunder.
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VAULT, VAULT SPACE, AREA:
14. No Vaults, vault space or area, whether or not enclosed or covered, not
within the property line of the building is leased hereunder, anything contained
in or indicated on any sketch, blue print or plan, or anything contained
elsewhere in this lease to the contrary notwithstanding. Owner makes no
representation as to the location of the property line of the building. All
vaults and vault space and all such areas not within the property line of the
building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any federal,
state or municipal authority or public utility, Owner shall not be subject to
any liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant, if used by Tenant,
whether or not specifically leased hereunder.
OCCUPANCY:
15. Tenant will not at any time use or occupy the demised premises in violation
of the certificate of occupancy issued for the building of which the demised
premises are a part. Owner represents that the Certificate of Occupancy covering
the demised premises on the Commencement Date shall permit Tenant's use of the
demised premises as set forth in Article 2. Tenant has inspected the premises
and accepts them as is, subject to the riders annexed hereto with respect to
Owner's work, if any. In any event, Owner makes no representation as to the
condition of the premises and Tenant agrees to accept the same subject to
violations, whether or not of record. If any governmental license or permit
shall be required for the proper and lawful conduct of Tenant's business, Tenant
shall be responsible for and shall procure and maintain such license or permit.
BANKRUPTCY:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding, this
lease may be cancelled by Owner by sending of a written notice to Tenant within
a reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of any
state naming Tenant as the debtor; or (2) the making by Tenant of an assignment
or any other arrangement for the benefit of creditors under any state statute.
Neither Tenant nor any person claiming through or under Tenant, or by reason of
any statute or order of court, shall thereafter be entitled to possession of the
premises demised but shall forthwith quit and surrender the premises. If this
lease shall be assigned in accordance with is terms, the provisions of this
Article 16 shall be applicable only to the party then owning Tenant's interest
in this lease.
(b) It is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages an amount equal to the difference between
the rental reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof be relet by the Owner for the unexpired term of said lease, or any
part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such reletting
shall be deemed to be the fair and reasonable rental value for the part or the
whole of the premises so re-let during the term of the re-letting. Nothing
herein contained shall limit or prejudice the right of the Owner to prove for
and obtain as liquidated damages by reason of such termination, an amount equal
to the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amount of the
difference referred to above. (See Article 59)
DEFAULT:
17. (1) If Tenant defaults in fulfilling any of the covenants of this lease
other than the covenants for the payment of rent or additional rent; or if the
demised premises becomes vacant or deserted or if Tenant shall fail more than 3
times during any 12 month period during the term of this lease to make timely
payments of rent or if this lease be rejected under S235 of Title II of the U.S
Code (bankruptcy code); or if any execution or attachment shall be issued
against Tenant or any of Tenant's property whereupon the demised premises shall
be taken or occupied by someone other than Tenant; or if Tenant shall make
default with respect to any other lease between Owner and Tenant; or if Tenant
shall have failed, after ten (10) days notice in the case of monetary default
and thirty (30) days notice in the case of nonmonetary default, written
notice,to redeposit with Owner any portion of the security deposited hereunder
which Owner has applied to the payment of any rent and additional rent due and
payable hereunder or failed to move into or take possession of the premises
within thirty (30) days after the commencement of the term of this lease, of
which such Owner shall be the sole judge; then in any one or more of such
events, upon Owner serving a written ten (10) days notice in the case of
monetary default and thirty (30) days notice in the case of nonmonetary default
notice upon Tenant specifying the nature of said default and upon the expiration
of said ten (10) days notice in the case of monetary default and thirty (30)
days notice in the case of nonmonetary default, if Tenant shall have failed to
comply with or remedy such default, or if the said default or omission
complained of shall be of a nature that the same cannot be completely cured or
remedied within said ten (10) days notice in the case of monetary default and
thirty (30) days notice in the case of nonmonetary default, and if Tenant shall
not have diligently commenced curing such default within such ten (10) days
notice in the case of monetary default and thirty (30) days notice in the case
of nonmonetary default period, and shall not thereafter with reasonable
diligence and in good faith, proceed to remedy or cure such default, and in the
case of failure of Tenant to pay rent or additional rent, Owner shall give
Tenant ten (10) additional days notice of such failure to pay and if Tenant
shall fail to pay within such ten (10) day period, then Owner may serve a
written five (5) days' notice of cancellation of this lease upon Tenant, and
upon the expiration of said five (5) days this lease and the terms thereunder
shall end and expire as fully and completely as if the expiration of such five
(5) day period were the day herein definitely fixed for the end and expiration
of this lease and the term thereof and Tenant shall then quit and surrender the
demised premises to Owner but Tenant shall remain liable as hereinafter
provided.
(2) If the notice provided for in (1) hereof shall have been given and
applicable grace periods have expired and the term shall expire as aforesaid; or
if Tenant shall make default in the payment of the rent reserved herein or any
term of additional rent herein mentioned or any part of either or in making any
other payment herein required; then an in any of such events Owner may without
notice, re-enter the demised premises either by force or otherwise, and
disposses Tenant by summary proceedings or otherwise, and the legal
representative of Tenant or other occupant of demised premises and remove their
effects and hold the premises as if this lease had not been made, and Tenant
hereby waives the service of notice of intention to re-enter or to institute
legal proceedings to that end. If Tenant shall not default hereunder prior to
the date fixed as the commencement of or renewal or extension of this lease,
Owner may cancel and terminate such renewal or extension agreement by written
notice.
REMEDIES OF OWNER AND WAIVER OF REDEMPTIONS:
18. In case of any such default, to entry, expiration and/or dispossess by
summary proceedings or otherwise, (a) the rent, and additional rent, shall
become due thereupon and be paid up to the time of such re-entry, dispossess
and/or expiration, (b) Owner may re-let the premises or any part or parts
thereof, either in the name of Owner or otherwise, for a term or terms, which
may at Owner's option be less than or exceed the period which would otherwise
have constituted the balance of the term of this lease and may grant concessions
or free rent or charge a higher rental than that in this lease, (c) Tenant or
the legal representatives of Tenant shall also pay Owner as liquidated damages
for the failure of Tenant to observe and perform said Tenant's covenants herein
contained, any deficiency between the rent hereby reserved and or covenanted to
be paid and the net amount, if any, of the rents collected on account of the
subsequent lease or leases of the demised premises for each month of the period
which would otherwise have constituted the balance of the term of this lease.
The failure of Owner to re-let the premises or any part of parts thereof shall
not release or affect Tenant's liability for damages. In computing such
liquidated damages there shall be added to the said deficiency such expenses as
Owner may incur in connection with re-letting, such as legal expenses,
attorneys' fees, brokerage, advertising and for keeping the demised premises in
good order or for preparing the same for re-letting. Any such liquidated damages
shall be paid in monthly installments by Tenant on the rent day specified in
this lease and any suit brought to collect the amount of the deficiency for any
month shall not prejudice in any way the rights of Owner to collect the
deficiency for any subsequent month by a similar proceeding. Owner, in putting
the demised premises in good order or preparing the same for re-rental may, at
Owner's option, make such alterations, repairs, replacements, and/or decorations
in the demised premises as Owner, in Owner's sole judgment, considers advisable
and necessary for the purpose of re-letting the demised premises, and the making
of such alterations, repairs, replacements, and/or decorations shall not operate
or be construed to release Tenant from liability hereunder as aforesaid. Owner
shall in no event be liable in any way whatsoever for failure to re-let the
demised premises, or in the event that the demised premises are re-let, for
failure to collect the rent thereof under such re-letting, and in no event shall
Tenant be entitled to receive any excess, if any, of such net rents collected
over the sums payable by Tenant to Owner hereunder. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof. Owner
shall have the right of injunction and the right to invoke any remedy allowed at
law or in equity as if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in equity. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws.
FEES AND EXPENSES:
19. If Tenant shall default in the observance or performance of any term or
covenant on Tenant's part to be observed or performed under or by virtue of any
of the terms and provisions in any article of this lease, then unless otherwise
provided elsewhere in this lease. Owner may immediately or at any time
thereafter and without notice perform the obligation of Tenant thereunder. If
Owner, in connection with the foregoing or in connection with any defaults by
Tenant in the covenant to pay rent hereunder, makes any expenditures or actually
incurs any obligations for the payment of money, including but not limited to
reasonably attorney's fees, in instituting, prosecuting or defending any action
or proceedings, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of tenant's default shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Owner within five (5) days of rendition of any bill
or statement in Tenant therefor. If Tenant's lease term shall have expired at
the time of making of such expending or incurring of such obligations, such sums
shall be recoverable by Owner as damages.
BUILDING ALTERATIONS AND MANAGEMENT:
20. Owner shall have the right at any time without the same constituting an
eviction and without incurring liability to Tenant therefor to change the
arrangement and or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building and
to change the name, number or designation by which the building may be known.
Such changes shall not unreasonably interfere with Tenant's use of the demised
premises. There shall be no allowance to Tenant for elimination of rental value
and no liability on the part of Owner by reason of inconvenience, annoyance or
injury to business arising from Owner or other Tenant making any repairs to the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
any controls of the manner of access to the building by Tenants's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants.
NO REPRESENTATIONS BY OWNER:
21. Except as set forth herein, neither Owner nor Owner's agents have made any
representations or promises with respect to the physical condition of the
building, the land upon which it is erected or the demised premises, the rents,
leases, expenses of operation or any other matter or thing affecting or related
to the demised premises or the building except as herein expressly set forth and
no rights, casements or licenses are acquired by Tenant by implication or
otherwise except as expressly set forth in the provisions of this lease. Tenant
has inspected the building and the demised premises and is thoroughly
reacquainted with their condition and agrees to take the same "as is" on the
date possession is tendered and acknowledges that the taking of possession of
the demised premises by Tenant shall be conclusive evidence that the said
premises and the building of which the same form a part were in good and
satisfactory condition at the time such possession was so taken, except as to
intent defects. All understandings and agreements heretofore made between the
parties hereto are merged in this contract, which alone fully and completely
expresses the agreement between Owner and Tenant and any executory agreement
hereafter made shall be ineffective to
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change, modify, discharge or effect an abandonment of it in whole or in part,
unless such executory agreement is in writing and signed by the party against
whom enforcement of the change, modification, discharge or abandonment is
sought.
END OF TERM:
22. Upon the expiration or other termination of the term of this lease, Tenant
shall quit and surrender to Owner the demised premises, broom clean, in good
order and condition, ordinary wear and damages which Tenant is not required to
repair as provided elsewhere in this lease excepted, and Tenant shall remove all
its property from the demised premises. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of this
lease.
QUIET ENJOYMENT:
23. Owner covenants and agrees with Tenant that upon Tenant paying the rent and
additional rent and observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed. Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of this lease including, but not limited to, Article 24
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
FAILURE TO GIVE POSSESSION:
24. If Owner is unable to give possession of the demised premises on the date
of the commencement of the term hereof, because of the holding-over or retention
of possession of any tenant, undertenant or occupants or if the demised premises
are located in a building being constructed, because such building has not been
sufficiently completed to make the premises ready for occupancy or because of
the fact that a certificate of occupancy has not been procured or if Owner has
not completed any work required to be performed by Owner, or for any other
reason. Owner shall not be subject to any liability for failure to give
possession on said date and the validity of the lease shall not be impaired
under such circumstances, nor shall the same be construed in any sense to extend
the term of this lease, but the rent payable hereunder shall be abated (provided
Tenant is not responsible for Owner's inability to obtain possession or complete
any work required) until after Owner shall have given Tenant notice that the
premises are substantially ready for Tenant's occupancy. If permission is given
to Tenant to enter into the possession of the demised premises or to occupy
premises other than the demised premises prior to the date specified as the
commencement of the term of this lease, Tenant covenants and agrees that such
occupancy shall be deemed to be under all terms, covenants, conditions and
provisions of this lease, except as to the covenant to pay rent. The provisions
of this article are intended to constitute "an express provision to the
contrary" within the meaning of Section 221-a of the New York Real Property Law.
NO WAIVER:
25. The failure of Owner to seek redress for violation of, or to insist upon
the strict performance of any covenant or condition of this lease or of any of
the Rules or Regulations, set forth or hereafter adopted by Owner, shall not
prevent a subsequent act which would have originally constituted a violation
from having all the force and effect of an original violation. The receipt by
Owner of rent with knowledge of the breach of any covenant of this lease shall
not be deemed a waiver of such breach and no provision of this lease shall be
deemed to have been waived by Owner unless such waiver be in writing signed by
Owner. No payment by Tenant or receipt by Owner of a lesser amount than the
monthly rent herein stipulated shall be deemed to be other than on account of
the earliest stipulated rent, nor shall any endorsement or statement of any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Owner may accept such check or payment without
prejudice to Owner's right to recover the balance of such rent or pursue any
other remedy to this lease provided. All checks tendered to Owner as and for the
rent of the demised premises shall be deemed payments for the account of Tenant.
Acceptance by Owner of rent from anyone other than Tenant shall not be deemed to
operate as an attainment to Owner by the payor of such rent or as a consent by
Owner to an assignment or subletting by Tenant of the demised premises to such
payor, or as a modification of the provisions of this lease. No act or thing
done by Owner or Owner's agents during the term hereby demised shall be deemed
an acceptance of a surrender of said premises and no agreement to accept such
surrender shall be valid unless in writing signed by Owner. No employee of Owner
or Owner's agent shall have any power to accept the keys of said premises prior
to the termination of the lease and the delivery of keys to any such agent or
employee shall not operate as a termination of the lease or a surrender of the
premises.
WAIVER OF TRIAL BY JURY:
26. It is mutually agreed by and between Owner and Tenant that the respective
parties hereto shall and they hereby do waive trial by jury to any action,
proceeding or counterclaim brought by either of the parties herein against the
other (except for personal injury or property damage) or any matters whatsoever
arising out of or in any way connected with this lease, the relationship of
Owner and Tenant, Tenant's use of or occupancy of said premises, and any
emergency statutory or any other statutory remedy. It is further mutually
agreed that in the event Owner commences any summary proceeding for possession
of the premises, Tenant will not interpose any counterclaim of whatever nature
or description in any such proceeding.
INABILITY TO PERFORM:
27. This Lease and the obligation of Tenant to pay rent hereunder and perform
all of the other covenants and agreements hereunder on part of Tenant to be
performed shall in no wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under this lease or to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Owner is prevented or delayed from so doing by reason of strike or
labor troubles of any cause whatsoever beyond Owner's sole control including,
but not limited to, government preemption in connection with a National
Emergency or by reason of any rule, order or regulation of any department or
subdivision thereof of any government agency or by reason of the conditions of
supply and demand which have been or are affected by war or other emergency.
This lease and the obligations of Owner to perform hereunder shall in no wise be
effected, impaired or excused because Tenant is unable to fulfill any of its
obligations under this lease, other than the payment of Fixed Annual Rent or
additional rent, by reason of unavoidable delays.
BILLS AND NOTICES:
28. (See Article 57)
WATER CHARGES:
29. Owner shall furnish water to the demised premises for ordinary lavatory
and kitchen use without charge. If Tenant requires, uses or consumes water for
any purpose in addition to ordinary lavatory purposes (of which fact Tenant
constitutes Owner to be the sole judge) Owner may install a water meter and
thereby measure Tenant's water consumption for all purposes. Tenant shall pay
Owner for the cost of the meter and the cost of the installation, thereof and
throughout the duration of Tenant's occupancy. Tenant shall keep said meter and
installation equipment in good working order and repair at Tenant's own cost
and expense in default of which Owner may cause such meter and equipment to be
replaced or repaired and collect the cost thereof from Tenant as additional
rent. Tenant agrees to pay for water consumed, as shown on said meter as and
when bills are rendered, and on default in making such payment Owner may pay
such charges and collect the same from Tenant as additional rent. Tenant
covenants and agrees to pay, as additional rent the sewer rent, charge or any
other tax, rent, levy or charge which now or hereafter is assessed, imposed or
a lien upon the demised premises or the realty of which they are part pursuant
to law, order or regulation made or issued in connection with the use,
consumption, maintenance or supply of water, water system or sewage or sewage
connection or system. If the building or the demised premises or any part
thereof is supplied with water through a meter through which water is also
supplied to other premises Tenant shall pay to Owner, as additional rent, on
the first day of each month, Owner's reasonable estimate of Tenant's share of
the total meter charges as Tenant's portion. Independently of and in addition
to any of the remedies reserved to Owner hereinabove or elsewhere in this lease.
Owner may sue for and collect any monies to be paid by Tenant or paid by Owner
for any of the reasons or purposes hereinabove set forth.
SPRINKLERS:
30. Anything elsewhere in this lease to the contrary notwithstanding, if the
New York Board of Fire Underwriters or the New York Fire Insurance Exchange or
any bureau, department or official of the federal, state or city government
recommend or require the installation of a sprinkler system or that any
changes, modifications, alterations, or additional sprinkler heads or other
equipment be made or supplied in an existing sprinkler system by reason of
Tenant's business, or the location of partitions, trade fixtures, or other
contents of the demised premises, or for any other reason, or if any such
sprinkler system installations, modifications, alterations, additional
sprinkler heads or other such equipment, become necessary to prevent the
imposition of a penalty or charge against the full allowance for a sprinkler
system in the fire insurance rate set by any said Exchange or by any life
insurance company. Tenant shall, at Tenant's expense, promptly make such
sprinkler system installations, changes, modifications, alterations, and supply
additional sprinkler heads or other equipment as required whether the work
involved shall be structural of non-structural in nature. Tenant shall pay to
Owner as additional rent 34% for the period commencing on the Commencement Date
and shall be increased by (i) 16.40% for the period commencing on the First
Additional Premises Commencement Date, (ii) 11.42% for the period commencing on
the Second Additional Premises Commencement Date and (iii) 8.60% for the period
commencing on the Third Additional Premises Commencement Date of the contract
price for sprinkler supervisory service and alarm service.
ELEVATORS, HEAT, CLEANING:
31. As long as Tenant is not in default under any of the covenants of this
lease beyond applicable notice and grace periods, Owners shall: clean the public
halls and public portions of the building which are used in common by all
tenants. Tenant shall, at Tenant's expense, keep the demised premises,
including the windows, clean and in order, to the reasonable satisfaction of
Owner, and for that purpose shall employ the person or persons, or corporation
approved by Owner. Owner reserves the right to stop service of the heating,
plumbing and electric systems, when necessary, by reason of accident, or
emergency, or for repairs, alterations, replacements or improvements. In the
judgment of Owner desirable or necessary to be made, until said repairs,
alterations, replacements or improvements shall have been completed. Owner
shall use its reasonable and diligent efforts to cause such services to be
restored as expeditiously as possible.
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SECURITY:
32. Tenant has deposited with Owner the sum of $61,625.00 as security for the
faithful performance and observance by Tenant of the terms, provisions and
conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease after the
expiration of applicable notice and grace periods including, but not limited
to, the payment of rent and additional rent. Owner may use, supply or retain
the whole or any part of the security so deposited to the extent required for
the payment of any rent and additional rent or any other sum as to which tenant
is in default or for any sum which Owner may expend or may be required to
expend by reason of Tenant's default in respect of any of the terms, covenants
and conditions of this lease, including but not limited to, any damages or
deficiency in the re-letting of the premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Owner. If Owner so uses, applies or retains any part of the security so
deposited, Tenant, upon demand, shall deposit with Owner the amount so used,
applied or retained, so that Owner shall have the full deposit on hand at all
times during the term of this lease. In the event that Tenant shall fully and
faithfully comply with all of the terms, provisions, covenants and conditions
of this lease, the security shall be returned to Tenant after the date fixed as
the end of the Lease and after delivery of entire possession of the demised
premises to Owner. In the event of a sale of the land and building or leasing
of the building, of which the demised premises form a part, Owner shall have
the right to transfer the security to the vendee or lessee and Owner shall
thereupon be released by Tenant from all liability for the return of such
security; and Tenant agrees to look to the new Owner solely for the return of
said security, and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the security to a new Owner. Tenant further
covenants that it will not assign or encumber or attempt to assign or encumber
the monies deposited herein as security and that neither Owner nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance. On or before the First
Additional Premises Commencement Date, Tenant shall deposit with Owner, as
additional security, $29,725.00. On or before the Second Additional Premises
Commencement Date, Tenant shall deposit with Owner, as additional security,
$20,698.00. On or before the Third Additional Premises Commencement Date,
Tenant shall deposit with Owner, as additional security, $15,587.50. Such
additional sums shall be held by Owner in accordance with the provisions of
this Article 32. The security deposited hereunder shall be placed in an
interest bearing account. Interest earned by Owner on the security deposit shall
be distributed to Tenant annually provided that Tenant shall not be in default
hereunder. Owner shall retain 1% of the security deposit annually as an
administrative fee.
CAPTIONS:
33. The Captions are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this lease nor
the intent of any provision thereof.
DEFINITIONS:
34. The term "Owner" as used in this lease means only the owner of the fee or
of the leasehold of the building, or the mortgagee in possession, for the time
being of the land and building for the owner of a lease of the building or of
the land and building of which the demised premises form a part, so that in the
event of any sale or sales of said land and building or of said lease, or in
the event of a lease of said building, or of the land and building, the said
Owner shall be and hereby is entirely freed and relieved of all covenants and
obligations of Owner hereunder, and it shall be deemed and consigned without
further agreement between the parties or their successors in interest, or
between the parties and the purchaser, at any such sale, or the said lessee of
the building, or of the land and building, that the purchaser or the lessee of
the building has assumed and agreed to every and any and all covenants and
obligations of Owner hereunder. The words "re-enter" and "re-entry" as used in
this lease are not restricted to their technical legal meaning. The term "rent"
includes the annual rental rate whether so-expressed or expressed in monthly
installments, and "additional rent." "Additional rent" means all sums which
shall be due to new Owner from Tenant under this lease, in addition to the
annual rental rate. The term "business days" as used in this lease, shall
exclude Saturdays, Sundays and all days observed by the State or Federal
Government as legal holidays and those designated as holidays by the applicable
building service union employees service contract or by the applicable
Operating Engineers contract with respect to HVAC service.
ADJACENT EXCAVATION -- SHORING:
35. If an excavation shall be made upon land adjacent to the demised premises,
or shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as said person shall deem necessary to
preserve the wall or the building of which demised premises form a part from
injury or damage and to support the same by proper foundations without any claim
for damages or indemnity against Owner, or diminution or abatement or rent.
RULES AND REGULATIONS:
36. (See Article 55)
GLASS:
37. Owner shall replace, at the expense of the Tenant, any and all plate and
other glass damaged or broken from any cause whatsoever in and about the demised
premises. Owner may insure, and keep insured, at Tenant's expense, all plate and
other glass in the demised premises for and in the name of Owner. Bills for the
premiums therefor shall be rendered by Owner to Tenant at such times as Owner
may elect, and shall be due from, and payable by, Tenant when rendered, and the
amount thereof shall be deemed to be, and be paid, as additional rent.
ESTOPPEL CERTIFICATE:
38. Tenant, at any time, and from time to time, upon at least 10 days' prior
notice by Owner, shall execute, acknowledge and deliver to Owner, and/or to any
other person, firm or corporation specified by Owner, a statement certifying
that this Lease is unmodified in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and
stating the modifications), stating the dates to which the rent and additional
rent have been paid, and stating whether or not there exists any default by
Owner under this lease, and if so, specifying each such default.
DIRECTORY BOARD LISTING:
39. (See Article 51)
SUCCESSORS AND ASSIGNS:
40. The covenants, conditions and agreements contained in this lease shall
bind and inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns.
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed
this lease as of the day and year first above written.
Witness for Owner: ROBERT MARTIN COMPANY
-------------------------------CORP.
SEAL
By:
- ----------------------------------- -------------------------------(L.S.)
President
Witness for Tenant: CITYSCAPE CORP.
-------------------------------CORP.
SEAL
By: [SIGNATURE ILLEGIBLE]
- ----------------------------------- -------------------------------(L.S.)
Exec. Vice President
FEDERAL I.D. # / SOCIAL SECURITY #
-------------------------------
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MULTI/MAS 88
Striking out or deletion of any portion of this lease (and the insertion of
asterisks at various points) was done as a matter of convenience in preparing
the lease for execution. The language omitted (as well as the use or placement
of such asterisks) is not to be given any effect in construing this lease,
RULES & REGULATIONS - Exhibit A
WORK SPECIFICATIONS - Exhibit B
FLOOR PLAN - Exhibit C
TEMPORARY LEASE AGREEMENT - Exhibit D
STANDARD FORM OF RIDER TO STANDARD FORM OF LOFT LEASE
Date of Lease: May , 1996
Owner: ROBERT MARTIN COMPANY
Tenant: CITYSCAPE CORP.
Building: EIGHT SKYLINE DRIVE, HAWTHORNE, NY
Rentable Area: approximately 17,000 square feet for the period commencing on
the Commencement Date and shall be increased by (i)
approximately 8,200 square feet for the period commencing on
the First Additional Premises Commencement Date, (ii)
approximately 5,710 square feet for the period commencing on
the Second Additional Premises Commencement Date and (iii)
approximately 4,300 square feet for the period commencing on
the Third Additional Premises Commencement Date.
41. Additional Definitions. For all purposes of this lease, and all
agreements supplemental hereto, the terms defined in this Article shall have the
meanings specified unless the context otherwise requires:
(a) The term laws and requirements of public authorities shall mean
laws and ordinances of federal, state, city, town, and county governments, and
rules, regulations, orders and directives of departments, subdivisions, bureaus,
agencies or offices thereof, or any other governmental, public or quasi-public
authorities having jurisdiction over the Building, and the directions of any
public officer pursuant to law.
(b) The word invitee shall mean any employee, agent, visitor,
customer, contractor, licensee, or other party claiming under, or in the
Building, or in the Park, if applicable, by permission or sufferance of, Owner
or Tenant.
(c) The term requirements of insurance bodies shall mean rules,
regulations, orders and other requirements of the New York Board of Fire
Underwriters or New York Fire Insurance Rating Organization or any similar body
performing the same or similar functions.
(d) The term unavoidable delays shall mean delays due to strikes or
labor troubles, fire or other casualty, governmental restrictions, enemy action,
civil commotion, war or other emergency, acts of God or nature, or any cause
beyond the reasonable control of either party whether or not similar to any of
the causes stated above, but not the inability of either party to obtain
financing which may be necessary to carry out its obligations.
(e) The term Real Property shall mean the tax lot of which the demised
premises is a part. The Building is assessed with 10 Skyline Drive. For the
purposes of this lease, the Building is allocated of 71.1% of the Taxes for the
Real Property based on the relative square footage of each building.*
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(f) The term lease year shall mean the 12 month period commencing with
the Commencement Date (as defined in paragraph (a) of Article 42), and ending
the day preceding the first anniversary of the Commencement Date (except that if
the Commencement Date shall occur on a day other than the first day of a
calendar month, such period shall commence with the Commencement Date and end
with the last day of the 12th full calendar month thereafter) and each 12 month
period thereafter, all or part of which falls within the term of this lease.
(g) The word rent shall mean the Fixed Annual Rent and such other sums
due Owner pursuant to this lease. All sums due Owner, other than Fixed Annual
Rent, are included in the term additional rent.
(h) The term Hazardous Materials shall mean (i) any chemical, material
or substance defined as or included in the definitions of "hazardous substance",
"hazardous materials", "extremely hazardous waste", "restricted hazardous
waste", "toxic substance" or words of similar import, under any applicable
local, state, or federal laws, including but not limited to the Federal Water
Pollution Act (33 U.S.C. Section 1251 et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801 et seq.), the Resources Conservation
and Recovery Act (42 U.S.C. 6901 et seq., 42 U.S.C. Section 7401 et seq.) and
CERCLA (42 U.S.C. 9601 et seq.), all as may be amended from time to time; (ii)
petroleum; (iii) asbestos; (iv) polychlorinated biphenyls; (v) radioactive
materials; and (vi) radon gas. Notwithstanding anything contained in this lease
to the contrary, Tenant may use ordinary cleaning materials in reasonable
quantities in the demised premises.*
(i) The term business days as used in this lease shall exclude
Saturdays, Sundays and all days observed by the State or Federal Government as
legal holidays and all days designated as holidays by the applicable building
service union employees service contract.
(j) The term Executive Park or Park shall mean Mid Westchester
Executive Park, located in the Town of Mount Pleasant, County of Westchester and
State of New York.
42. Term; Preparation for Occupancy and Possession.
(a) The term of this lease and the estate hereby granted shall
commence on a date (the "Commencement Date") which shall be the earlier of the
day (i) on which the Initial Premises shall be deemed to be completed as such
term is defined in paragraph (c) of this Article (of which date Tenant shall be
given 5 days notice), or (ii) Tenant (or anyone claiming under or through
Tenant) shall occupy the Initial Premises. The term shall expire on the last day
of the month five (5) years after the month in which the Commencement Date
occurs (the "Expiration Date") or on such earlier date upon which said term may
expire or be terminated pursuant to any provision of this lease or law. Promptly
following the determination of the Commencement Date, the parties shall enter
into a supplementary written agreement setting forth the Commencement and
Expiration Dates.
(b) The Initial Premises shall be completed and initially prepared by
Owner in the manner set forth in, and subject to the provisions of, the attached
Work Specifications and Floor Plan. Tenant and its contractors shall be entitled
to access to the Initial Premises prior to the completion of Owner's work,
subject to Owner's prior approval, and only so long as they work in conformity
with and do not interfere, in Owner's judgment, with Owner or its contractors in
the completion of Owner's work, and provided they accept the administrative
supervision of Owner. If Tenant's work interferes with Owner's work, in Owner's
judgment,
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Owner may withdraw the license granted to Tenant pursuant to this paragraph upon
24 hours notice. Tenant's selection of contractors must be in compliance with
the provisions of this lease.
(c) The Initial Premises shall be deemed completed on the date on
which Owner's work in the Initial Premises has been substantially completed
(notwithstanding the fact that minor or insubstantial details of construction,
mechanical adjustment or decoration remain to be performed, the non-completion
of which would not materially interfere with Tenant's use of the Initial
Premises) and a (temporary or final) certificate of occupancy is issued for the
Initial Premises. If Owner shall obtain a temporary certificate of occupancy,
the Initial Premises shall be substantially completed only if such temporary
certificate of occupancy shall permit Tenant to use the Initial Premises in
accordance with Article 2, and Owner shall proceed diligently to obtain a final
certificate of occupancy. If completion of the Initial Premises by Owner is
delayed by reason of:
(i) any act or omission of Tenant or any or its employees,
agents or contractors, including failure of Tenant to comply with any
of its obligations under the Work Specifications, or
(ii) Tenant's failure to plan or execute Tenant's work with
reasonable speed and diligence, or
(iii) Tenant's failure to make selections required by the Work
Specifications, or
(iv) Tenant's changes by Tenant in its drawings or
specifications or changes or substitutions requested by Tenant, or
(v) Tenant's failure to submit or approve drawings, plans or
specifications timely, or
(vi) Tenant's failure to deliver to Owner the first month's
rent (if required by the provisions on the first page of this lease),
and the security deposit required by Article 32 (if any),
then the Initial Premises shall be deemed completed, the Commencement Date shall
be deemed to have occurred (and Tenant shall commence paying rent) on the date
when it would have been completed and rent would have been due and payable but
for such delay, and Tenant shall pay Owner all costs and damages which Owner may
sustain by reason of such delay.*
Owner shall use its best efforts to cause the Initial Premises to be deemed
complete within 60 days after the date of this lease, provided that Owner shall
have no liability for its failure to cause the Initial Premises to be deemed
complete by such date.*
In the event the Initial Premises are not ready for occupancy (for reasons other
than as set forth in this Paragraph (c)) within 150 days after the date hereof,
Tenant may elect to terminate this lease, provided that notice of such election
shall be given to Owner no later than 160 days after the date hereof, time being
of the essence in the giving of such notice. If Tenant shall so elect, the
parties shall then be released of all liabilities hereunder, each to the other.*
(d) (A) The First Additional Premises Commencement Date shall be the
earlier of the day (i) on which the First Additional Premises shall be deemed to
be completed as such term is defined in paragraph (c) of this Article (of which
date Tenant shall be given 15 days notice), or (ii) Tenant (or anyone claiming
under or
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through Tenant) shall occupy the First Additional Premises. Promptly following
the determination of the First Additional Premises Commencement Date, the
parties shall enter into a supplementary written agreement setting forth the
First Additional Premises Commencement Date.*
(B) The First Additional Premises shall be completed and initially
prepared by Owner in the manner set forth in, and subject to the provisions of,
the attached or to be attached Work Specifications and Floor Plan. Tenant and
its contractors shall be entitled to access to the First Additional Premises
prior to the completion of Owner's work, subject to Owner's prior approval
(which approval shall not be unreasonably withheld), and only so long as they
work in conformity with and do not interfere, in Owner's reasonable judgment,
with Owner or its contractors in the completion of Owner's work, and provided
they accept the administrative supervision of Owner. If Tenant's work interferes
with Owner's work, in Owner's reasonable judgment, Owner may withdraw the
license granted to Tenant pursuant to this paragraph upon 24 hours notice.
Tenant's selection of contractors must be in compliance with the provisions of
this lease.*
(C) The First Additional Premises shall be deemed completed on the
date on which Owner's work in the First Additional Premises has been
substantially completed (notwithstanding the fact that minor or insubstantial
details of construction, mechanical adjustment or decoration remain to be
performed, the non-completion of which would not materially interfere with
Tenant's use of the First Additional Premises) and a (temporary or final)
certificate of occupancy is issued for the First Additional Premises. If Owner
shall obtain a temporary certificate of occupancy, the First Additional Premises
shall be substantially completed only if such temporary certificate of occupancy
shall permit Tenant to use the First Additional Premises in accordance with
Article 2, and Owner shall proceed diligently to obtain a final certificate of
occupancy. If completion of the First Additional Premises by Owner is delayed by
reason of:
(i) any act or omission of Tenant or any of its employees,
agents or contractors, including failure of Tenant to comply with any
of its obligations under the Work Specifications, or
(ii) Tenant's failure to plan or execute Tenant's work with
reasonable speed and diligence, or
(iii) Tenant's failure to make selections required by the Work
Specifications, or
(iv) Tenant's changes by Tenant in its drawings or
specifications or changes or substitutions requested by Tenant, or
(v) Tenant's failure to submit or approve drawings, plans or
specifications, including layout specifications, timely, or
(vi) Tenant's failure to deliver to Owner the first month's rent
(if required by the provisions on the first page of this lease), and
the security deposit required by Article 32 (if any), or
(vii) Tenant's failure to approve construction drawings for the
First Additional Premises within 15 days after the delivery of the
drawings from Owner to Tenant,
then the First Additional Premises shall be deemed completed, the First
Additional Premises Commencement Date shall be deemed to have
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occurred (and Tenant shall commence paying rent) on the date when it would have
been completed and rent would have been due and payable but for such delay, and
Tenant shall pay Owner all costs and damages which Owner may sustain by reason
of such delay.*
Owner shall use its best efforts to cause the First Additional Premises to be
deemed complete on or before November 1, 1996, provided that Owner shall have no
liability for its failure to cause the First Additional Premises to be deemed
complete by such date. Owner shall notify Tenant if Owner is unable to deliver
the First Additional Premises by November 1, 1996.*
In the event the First Additional Premises are not delivered by Owner (for
reasons other than delays caused by any of the events set forth in clauses (i) -
(vii) of this subparagraph (C)) by February 1, 1997, Tenant, as its sole remedy,
may elect to terminate this lease, provided that notice of such election shall
be given to Owner no later than February 11, 1997, time being of the essence in
the giving of such notice. If Tenant shall so elect, the parties shall then be
released of all liabilities hereunder, each to the other. If Tenant shall
terminate this lease pursuant to this paragraph, the effective date of
termination shall be August 31, 1997.*
Owner shall contribute an amount equal to $108,650.00 ("Owner's Contribution").
If the cost of Owner's work in the First Additional Premises exceeds Owner's
Contribution, then Tenant shall be required to pay such additional monies to
Owner within 30 days after Owner sends an invoice to Tenant. Tenant shall not be
entitled to any reimbursement, refund or credit if the cost of Owner's work in
the First Additional Premises is less than Owner's Contribution.*
(e) The Second Additional Premises Commencement Date shall be the
earlier of (i) the date Owner shall deliver the Second Additional Premises to
Tenant or (ii) Tenant (or anyone claiming under or through Tenant) shall occupy
the Second Additional Premises. Promptly following the determination of the
Second Additional Premises Commencement Date, the parties shall enter into a
supplementary written agreement setting forth the Second Additional Premises
Commencement Date. Owner shall notify Tenant as promptly as possible if Owner is
unable to deliver the Second Additional Premises or Third Additional Premises by
March 31, 1998. Owner shall notify Tenant on or before June 30, 1997, if the
existing tenant in the Second Additional Premises elected to exercise its option
to renew. If Owner delivers the Third Additional Premises prior to the Second
Additional Premises, the Second Additional Premises Commencement Date shall be
the earlier of (i) the date Owner shall deliver the Second Additional Premises
to Tenant or (ii) Tenant (or anyone claiming under or through Tenant) shall
occupy the Second Additional Premises. Promptly following the determination of
the Second Additional Premises Commencement Date, the parties shall enter into a
supplementary written agreement setting forth the Second Additional Premises
Commencement Date.*
In the event that Owner fails to deliver either the Second Additional Premises
or the Third Additional Premises by May 31, 1998, Owner, as expeditiously as is
reasonably possible, shall use its best efforts to provide Tenant with temporary
space having a rentable area of at least 5,000 square feet in a building within
the Park ("Temporary Space"). Tenant shall have no obligation to pay rent for
the Temporary Space, and Tenant may occupy the Temporary Space until Owner shall
be able to deliver either the Second Additional Premises or the Third Additional
Premises. In addition, Tenant shall have the right to use 25 parking spaces in
connection with its occupancy of the Temporary Space to be reasonably allocated
between executive and employee spaces by
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MULTI/MAS 88
Owner. Owner shall have no obligation to perform any work in the Temporary
Space, provided that the Temporary Space is reasonably suited to permit Tenant
to reasonably operate its business on a temporary basis within the Temporary
Space. The Temporary Space shall be substantially similar to the Initial
Premises, reasonable wear and tear excepted (e.g., broom clean, carpeted
(although such carpeting need not be new, it shall be in reasonably good
condition), air conditioned, hung ceiling, etc.). Tenant shall be responsible to
pay for any utilities consumed by Tenant in the Temporary Space and office
cleaning in the Temporary Space. Owner shall notify Tenant on or before March
31, 1998, if Owner shall be unable to deliver the Temporary Space by May 31,
1998. Owner shall give Tenant at least 30 days prior notice of when Tenant shall
move from the Temporary Space to either the Second Additional Premises or Third
Additional Premises, as the case may be. The parties shall enter into a
temporary leasing agreement in the form annexed hereto as Exhibit D.*
In the event that Owner notifies Tenant by March 31, 1998 that Owner is unable
to deliver either the (i) Temporary Space, (ii) Second Additional Premises or
(iii) Third Additional Premises by May 31, 1998 (for reasons other than the
events set forth in clauses (i)-(vii) of Section (f) (C) of this paragraph),
Tenant, as its sole remedy, may elect to terminate this lease, provided that
notice of such election shall be given to Owner no later than April 10, 1998,
time being of the essence in the giving of such notice. If Tenant shall so
elect, the parties shall then be released of all liabilities hereunder, each to
the other. If Tenant shall terminate this lease pursuant to this paragraph, the
effective date of termination shall be no earlier than 90 days after the date of
Tenant's notice to Owner to terminate this lease and no later than 150 days
after the date of Tenant's notice to Owner to terminate this lease.*
In the event that Owner is unable to deliver either the (i) Temporary Space,
(ii) Second Additional Premises or (iii) Third Additional Premises by May 31,
1998 (for reasons other than the events set forth in clauses (i)-(vii) of
Section (f)(C) of this paragraph), Tenant, as its sole remedy, may elect to
terminate this lease, provided that notice of such election shall be given to
Owner no later than June 10, 1998, time being of the essence in the giving of
such notice. If Tenant shall so elect, the parties shall then be released of all
liabilities hereunder, each to the other. If Tenant shall terminate this lease
pursuant to this paragraph, the effective date of termination shall be no
earlier than 90 days after the date of Tenant's notice to Owner to terminate
this lease and no later than 150 days after the date of Tenant's notice to Owner
to terminate this lease.*
Tenant shall accept the Second Additional Premises "as is". Such term
shall mean in the same condition and repair in which the prior tenant vacated
such space, and Tenant shall be responsible for any demolition and removal of
any improvements existing in the Second Additional Premises in connection with
the prior tenant's occupancy, and all other work as may be necessary to convert
the Second Additional Premises to Tenant's requirements. Owner shall not be
responsible for performing any work with respect to such space, except as set
forth in the Work Specifications. Any other work, changes or improvements made
to such space shall be performed at Tenant's expense in accordance with the
terms of this lease. Notwithstanding anything contained in this paragraph to the
contrary, Owner shall reimburse Tenant in an amount not to exceed Owner's Second
Additional Premises Reimbursement (as defined below) for work to be performed by
Tenant in the Second Additional Premises. Owner's Second Additional Premises
Reimbursement shall be made promptly after Owner's receipt of paid invoices
evidencing the cost of Tenant's work in the Second Additional Premises. "Owner's
Second Additional Premises Reimbursement" shall mean the
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product of (x) $75,657.50 multiplied by (z) a fraction, the numerator of which
shall be the number of days between the Second Additional Premises Commencement
Date and the Expiration Date of the initial term of this lease and the
denominator of which shall be 1,825. In the event that Tenant shall employ Owner
to perform Tenant's work in the Second Additional Premises, then in lieu of
reimbursing Tenant for the cost of Tenant's work, Owner shall credit Tenant in
an amount equal to Owner's Second Additional Reimbursement against the cost of
the work to be performed by Owner in the Second Additional Premises.*
In the event that Owner fails to deliver the Second Additional Premises by May
31, 2000, Owner, as expeditiously as is reasonably possible, shall use its best
efforts to provide Tenant with temporary space having a rentable area of at
least 5,000 square feet in a building within the Park ("Temporary Space").
Tenant shall have no obligation to pay rent for the Temporary Space, and Tenant
may occupy the Temporary Space until Owner shall be able to deliver the Second
Additional Premises. In addition, Tenant shall have the right to use 25 parking
spaces in connection with its occupancy of the Temporary Space to be reasonably
allocated between executive and employee spaces by Owner. Owner shall have no
obligation to perform any work in the Temporary Space, provided that the
Temporary Space is reasonably suited to permit Tenant to reasonably operate its
business on a temporary basis within the Temporary Space. The Temporary Space
shall be substantially similar to the Initial Premises, reasonable wear and tear
excepted (e.g., broom clean, carpeted (although such carpeting need not be new,
it shall be in reasonably good condition), air conditioned, hung ceiling, etc.).
Tenant shall be responsible to pay for any utilities consumed by Tenant in the
Temporary Space and office cleaning in the Temporary Space. Owner shall notify
Tenant on or before March 31, 2000, if Owner shall be unable to deliver the
Temporary Space by May 31, 2000. Owner shall give Tenant at least 30 days prior
notice of when Tenant shall move from the Temporary Space to the Second
Additional Premises. The parties shall enter into a temporary leasing agreement
in the form annexed hereto as Exhibit D.*
In the event that Owner notifies Tenant by March 31, 2000 that Owner is unable
to deliver the Second Additional Premises by May 31, 2000 (for reasons other
than the events set forth in clauses (i)-(vii) of Section (f)(C) of this
paragraph), Tenant, as its sole remedy, may elect to terminate this lease,
provided that notice of such election shall be given to Owner no later than
April 10, 2000, time being of the essence in the giving of such notice. If
Tenant shall so elect, the parties shall then be released of all liabilities
hereunder, each to the other. If Tenant shall terminate this lease pursuant to
this paragraph, the effective date of termination shall be no earlier than 90
days after the date of Tenant's notice to Owner to terminate this lease and no
later than 150 days after the date of Tenant's notice to Owner to terminate this
lease.*
In the event that Owner is unable to deliver the Second Additional Premises by
May 31, 2000 (for reasons other than the events set forth in clauses (i)-(vii)
of Section (f)(C) of this paragraph), Tenant, as its sole remedy, may elect to
terminate this lease, provided that notice of such election shall be given to
Owner no later than June 10, 2000, time being of the essence in the giving of
such notice. If Tenant shall so elect, the parties shall then be released of all
liabilities hereunder, each to the other. If Tenant shall terminate this lease
pursuant to this paragraph, the effective date of termination shall be no
earlier than 90 days after the date of Tenant's notice to Owner to terminate
this lease and no later than 150 days after the date of Tenant's notice to Owner
to terminate this lease.*
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(f) (A) The Third Additional Premises Commencement Date shall be the
earlier of the day (i) on which the Third Additional Premises shall be deemed
to be completed as such term is defined in paragraph (C) of this Section (of
which date Tenant shall be given 15 days notice), or (ii) Tenant (or anyone
claiming under or through Tenant) shall occupy the Third Additional Premises.
Promptly following the determination of the Third Additional Premises
Commencement Date, the parties shall enter into a supplementary written
agreement setting forth the Third Additional Premises Commencement Date.*
(B) The Third Additional Premises shall be completed and
initially prepared by Owner in the manner set forth in, and subject to the
provisions of, the Work Specifications and Floor Plan to be mutually agreed upon
by Owner and Tenant. Tenant and its contractors shall be entitled to access to
the Third Additional Premises prior to the completion of Owner's work, subject
to Owner's prior approval (which approval shall not be unreasonably withheld),
and only so long as they work in conformity with and do not interfere, in
Owner's reasonable judgment, with Owner or its contractors in the completion of
Owner's work, and provided they accept the administrative supervision of Owner.
If Tenant's work interferes with Owner's work, in Owner's reasonable judgment,
Owner may withdraw the license granted to Tenant pursuant to this paragraph upon
24 hours notice. Tenant's selection of contractors must be in compliance with
the provisions of this lease.*
(C) The Third Additional Premises shall be deemed completed on
the date on which Owner's work in the Third Additional Premises has been
substantially completed (notwithstanding the fact that minor or insubstantial
details of construction, mechanical adjustment or decoration remain to be
performed, the non-completion of which would not materially interfere with
Tenant's use of the Third Additional Premises) and a (temporary or final)
certificate of occupancy is issued for the demised premises. If Owner shall
obtain a temporary certificate of occupancy, the Third Additional Premises shall
be substantially completed only if such temporary certificate of occupancy shall
permit Tenant to use the Third Additional Premises in accordance with Article 2,
and Owner shall proceed diligently to obtain a final certificate of occupancy.
If completion of the Third Additional Premises by Owner is delayed by reason of:
(i) any act or omission of Tenant or any of its employees,
agents or contractors, including failure of Tenant to comply with any
of its obligations under the Work Specifications, or
(ii) Tenant's failure to plan or execute Tenant's work with
reasonable speed and diligence, or
(iii) Tenant's failure to make selections required by the Work
Specifications, or
(iv) Tenant's changes by Tenant in its drawings or specifications
or changes or substitutions requested by Tenant, or
(v) Tenant's failure to submit or approve drawings, plans or
specifications, including layout specifications, timely, or
(vi) Tenant's failure to deliver to Owner the first month's rent
(if required by the provisions on the first page of this lease), and
the security deposit required by Article 32 (if any), or
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(vii) Tenant's failure to approve construction drawings for the
Third Additional Premises within 15 days after the delivery of the
drawings from Owner to Tenant,
then the Third Additional Premises shall be deemed completed, the Third
Additional Premises Commencement Date shall be deemed to have occurred (and
Tenant shall commence paying rent) on the date when it would have been completed
and rent would have been due and payable but for such delay, and Tenant shall
pay Owner all costs and damages which Owner may sustain by reason of such
delay.*
If the Third Additional Premises Commencement Date occurs on or before February
1, 1997, Tenant's obligation to pay the portion of the Fixed Annual Rent
applicable to the Third Additional Premises shall commence February 1, 1997,
provided however, if Owner is able to deliver at least 3,000 rentable square
feet of the Initial Premises and provide Tenant with access to the roof of the
Building to install a satellite dish on or before July 7, 1996, Tenant's
obligation to pay the portion of the Fixed Annual Rent applicable to the Third
Additional Premises shall commence on the later of (i) the Third Additional
Premises Commencement Date and (ii) January 1, 1997. Owner shall notify Tenant
as promptly as possible if Owner is unable to deliver the Third Additional
Premises by January 31, 2000.*
In the event that Owner fails to deliver the Third Additional Premises by April
30, 2000, Owner, as expeditiously as is reasonably possible, shall use its best
efforts to provide Tenant with temporary space having a rentable area of at
least 5,000 square feet in a building within the Park ("Temporary Space").
Tenant shall have no obligation to pay rent for the Temporary Space, and Tenant
may occupy the Temporary Space until Owner shall be able to deliver the Third
Additional Premises. In addition, Tenant shall have the right to use 25 parking
spaces in connection with its occupancy of the Temporary Space to be reasonably
allocated between executive and employee spaces by Owner. Owner shall have no
obligation to perform any work in the Temporary Space, provided that the
Temporary Space is reasonably suited to permit Tenant to reasonably operate its
business on a temporary basis within the Temporary Space. The Temporary Space
shall be substantially similar to the Initial Premises, reasonable wear and tear
excepted (e.g., broom clean, carpeted (although such carpeting need not be new,
it shall be in reasonably good condition), air conditioned, hung ceiling, etc.).
Tenant shall be responsible to pay for any utilities consumed by Tenant in the
Temporary Space and office cleaning in the Temporary Space. Owner shall notify
Tenant on or before February 29, 2000, if Owner shall be unable to deliver the
Temporary Space by April 30, 2000. Owner shall give Tenant at least 30 days
prior notice of when Tenant shall move from the Temporary Space to the Second
Additional Premises. The parties shall enter into a temporary leasing agreement
in the form annexed hereto as Exhibit D.*
In the event that Owner is unable to deliver either the Temporary Space or Third
Additional Premises by June 30, 2000 (for reasons other than delays caused by
any of the events set forth in clauses (i)-(vii) of this subparagraph (C)),
Tenant, as its sole remedy, may elect to terminate this lease, provided that
notice of such election shall be given to Owner no later than July 10, 2000,
time being of the essence in the giving of such notice. If Tenant shall so
elect, the parties shall then be released of all liabilities hereunder, each to
the other. If Tenant shall terminate this lease pursuant to this paragraph, the
effective date of termination shall be January 31, 2001.*
Owner shall contribute an amount equal to the product of (x) $70,000.00
multiplied by (z) a fraction, the numerator of which shall be the number of days
between the Third Additional Premises
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MULTI/MAS 88
Commencement Date and the Expiration Date of the initial term of this lease and
the denominator of which shall be 1,825 ("Owner's Third Additional Premises
Contribution"). If the cost of Owner's work in the Third Additional Premises
exceeds Owner's Third Additional Premises Contribution, then Tenant shall be
required to pay such additional monies to Owner within 30 days after Owner sends
an invoice to Tenant. Tenant shall not be entitled to any reimbursement, refund
or credit if the cost of Owner's work in the Third Additional Premises is less
than Owner's Third Additional Premises Contribution.*
(g) The Floor Plan attached hereto or to be attached hereto may be
revised by Owner in order to comply with laws and requirements of public
authorities and requirements of insurance bodies. Such changes shall not
unreasonably interfere with Tenant's intended use of the demised premises. If
any of such revisions or changes are due to Tenant's use of the demised
premises, Tenant shall pay for the cost or implementing same. If any common
foyers, exit foyers or exit passages mandated by such requirements are used by
more than one tenant, the rental value therefore shall be apportioned to Tenant
in relation to the Tenant's Rentable Area (as compared to the square footage
occupied by all such tenants) and Tenant's Fixed Annual Rent shall be increased
accordingly.*
(h) Owner may close or change the arrangement and/or location of exits,
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets
and other parts of the Building whenever necessary to comply with laws or
requirements of public authorities and requirements of insurance bodies. Tenant
shall pay the cost thereof where the requirement for such change is due to
Tenant's use of the demised premises.
43. Rent.
(a) If the Commencement Date is other than the first day or a calendar
month, the first monthly installment of Fixed Annual Rent shall be prorated to
the end of said calendar month.
(b) All rent shall be paid by currently dated, unendorsed check of
Tenant, payable to the order of Owner or to an agent designated by Owner, and
drawn on a bank or trust company which is a member of the New York Clearing
House.
(c) Tenant shall pay the Fixed Annual Rent without notice or demand. If
no date shall be set forth herein for the payment of any other sum due Owner,
then such sum shall be due and payable within 10 business days after the date
upon which Owner makes written demand for such payment.
(d) If at any time during the term the rent, or any part thereof, shall
not be fully collectible by reason of any laws and requirements of public
authorities, Tenant shall enter into such agreements and take such actions as
Owner may request to permit Owner to collect the maximum rents which may, during
the continuance of such legal rent restriction, be legally permissible (but not
in excess of the amounts reserved under this lease). Upon termination of such
rent restriction prior to the Expiration Date (i) the rent shall become and
thereafter be payable in accordance with the amounts reserved in this lease for
the period of the term following such termination, and (ii) Tenant shall pay
Owner, if legally permissible, an amount equal to (y) the rent which would have
been paid pursuant to this lease but for such legal rent restriction less (z)
the rents paid by Tenant for the period during which such rent restriction was
in effect.
(e) If any installment of Fixed Annual Rent is not paid when due, or if
any other monies owing by Tenant are not paid within 10
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days of the date due and payable, Tenant shall pay Owner, in compensation for
Owner's loss of use of such rent, the additional administrative, bookkeeping and
collection expenses incurred by reason of such overdue sum, a sum calculated by
multiplying the late payment by three percentage points above the prime rate
then established by Chemical Bank (but limited to the maximum legal rate),
dividing the product by 365 and multiplying the quotient by the number of days
between the date such payment was due and the date such payment is in fact paid.
Such compensation shall be without prejudice to any of Owner's other rights and
remedies hereunder.*
(f) If any check tendered by Tenant, for any payment due, shall be
dishonored by the payor bank, Tenant shall pay Owner, without prejudice to any
of Owner's other rights and remedies, in compensation for the additional
administrative, bookkeeping and collection expenses incurred by reason of such
dishonored check, the sum of $100. If during any twelve month period during the
term of this lease, two or more checks tendered by Tenant, for any payment due,
shall be dishonored by the payor bank, Owner may at any time thereafter require
that all future payments of rent by Tenant shall be made by certified or
official bank checks.
44. Parking.
(a) Throughout the term, so long as Tenant shall have performed all of
the agreements on Tenant's part to be performed beyond applicable notice and
grace periods, Owner shall make available to Tenant the following number of
parking spaces, on a non-exclusive basis:*
ten (10) spaces for executive cars, which shall be reasonably close to
the front entrance to the demised premises for the period commencing on the
Commencement Date and shall be increased by (i) four (4) spaces for executive
cars for the period commencing on the First Additional Premises Commencement
Date, (ii) three (3) spaces for executive cars for the period commencing on the
Second Additional Premises Commencement Date and (iii) two (2) spaces for
executive cars for the period commencing on the Third Additional Premises
Commencement Date.*
ninety-two (92) spaces for employee cars, which shall be not more than
500 yards from an entrance to the demised premises (as shown on the attached
site plan), unless otherwise provided for herein for the period commencing on
the Commencement Date and shall be increased by (i) thirty (36) spaces for
employee cars for the period commencing on the First Additional Premises
Commencement Date, (ii) twenty-five (25) spaces for employee cars for the period
commencing on the Second Additional Premises Commencement Date and (iii)
nineteen (19) spaces for employee cars for the period commencing on the Third
Additional Premises Commencement Date.*
If Tenant or its invitees use more than the specified number of spaces
set forth above, then after 5 days notice from Owner, Tenant shall, at the
option or Owner, either (i) pay Owner's then current charge per month for each
additional space used for each month during which such excess use takes place
(even if for less than the full month) (as of the date of this lease, Owner's
current monthly charge is $40.00 per space), or (ii) cease and desist
immediately from using said additional spaces. If Owner selects the first of
such options, Owner may revoke such choice on 30 days notice.
(b) As necessary, Owner shall (between 7:00 a.m. and 10:00 p.m. on
business days), light, clean, remove snow from and otherwise maintain, the
parking area. In addition, Owner shall remove snow from the parking areas on
Saturdays between 8:00 A.M. and 1:00 P.M.. Tenant shall be responsible for
repairing damage to
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the parking areas caused by Tenant or its invitees. Owner shall not be obligated
to remove snow unless the accumulation exceeds 3 inches. In no event shall Owner
be obligated to remove snow from areas obstructed by parked vehicles at the time
Owner's equipment is servicing such areas. Notwithstanding anything herein to
the contrary, Tenant shall be responsible for lighting its entrances to the
demised premises and loading areas and for removing snow and ice at its
entrances and other walkways and areas reserved or designated for Tenant's
exclusive use.*
(c) Tenant shall require its invitees to park only in areas designated
by Owner, and not to obstruct the parking areas of other tenants. Tenant shall,
upon request, furnish to Owner the license numbers of the automobiles operated
by Tenant, its executives and other employees. Owner may use any lawful means to
enforce the parking regulations established pursuant to Article 55, including,
but not limited to, the towing away of improperly parked or unauthorized cars
and pasting of warning notices on car windows and windshields.
(d) Owner may temporarily close any area not leased to Tenant in order
to make repairs or changes, to prevent the acquisition of public rights, or to
discourage unauthorized parking. Owner may do such other acts in and to such
areas as, in its judgment, may be desirable to improve same.
(e) The parking areas for trucks and delivery vehicles in front of
loading docks or loading areas (if any) adjacent to the demised premises are not
to be used by Tenant or its invitees, as parking spaces, unless otherwise
directed by Owner. Such loading docks or loading areas are provided solely for
the loading and unloading of Tenant's goods and no vehicles may be parked in
such areas longer than necessary, in Owner's reasonable judgment, for the
efficient discharge of such purposes. If the use of any loading dock at the
Building interferes with the use of another loading dock, the tenant occupying
more rentable area in the Building shall have priority in use of the loading
docks. In no event shall access to any loading dock be blocked for more than 15
minutes.
(f) Neither Tenant nor its invitees shall park automobiles, trucks or
other motor vehicles overnight within the park.
45. Tax Escalation.
(i) Definitions. As used in this lease:
(a) "Taxes" shall mean the total amount of real estate taxes and
assessments now or hereafter levied, imposed, confirmed or assessed
against the Real Property, (or, during any period the Real Property is
owned by an industrial development agency, such as would be levied,
imposed, confirmed or assessed as if Owner named herein were the fee
owner), including but not limited to city, county, town, village,
school and transit taxes, water fees and sewer and refuse disposal
charges, or taxes, assessments or charges levied, imposed, confirmed or
assessed against, or a lien on, the Real Property by any taxing
authority, whether general or specific, ordinary or extraordinary,
foreseen or unforeseen and whether for public betterments, improvements
or otherwise. If, due to any change in the method of taxation, any
franchise, capital stock, capital, income, profit, sales, rental, use
or occupancy tax or charge shall be levied, assessed, confirmed or
imposed upon Owner in lieu of, or in addition to, any real estate taxes
or assessments upon or with respect to the Real Property, such tax
shall be included in the term Taxes. Penalties and interest on Taxes
(except to the extent imposed upon timely payments of assessments that
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may be, and are in fact, paid in installments) and income, franchise,
transfer, inheritance and capital stock taxes shall be deemed excluded
from Taxes except to the extent provided in the immediately preceding
sentence.
(b) "Base Tax" is the product of the tax rates set forth on tax
bills rendered for each Tax for the Tax Year during which July 1, 1996
occurs, multiplied by the assessed valuations of the Real Property for
the Tax Year during which July 1, 1996 occurs. "Tax Year" shall mean
the fiscal period for each Tax. Any and all tax abatements shall be for
the benefit of Owner.*
(c) "Tenant's Proportionate Share" shall mean 34% for the period
commencing on the Commencement Date and shall be increased by (i) 16.40% for the
period commencing on the First Additional Premises Commencement Date, (ii)
11.42% for the period commencing on the Second Additional Premises Commencement
Date and (iii) 8.60% for the period commencing on the Third Additional Premises
Commencement Date.*
(ii) Tax Payments. (a) If Taxes for any Tax Year during the lease term
("Tax Comparison Year") shall exceed the Base Tax, Tenant shall pay Owner, as
additional rent for each such Tax Comparison Year, Tenant's Proportionate Share
of such excess ("Tax Payment").
(b) Subsequent to Owner's receipt of the tax bills for each Tax
Comparison Year, Owner shall submit to Tenant a statement showing (i) the Tax
Payments due for such Tax Comparison Year, and (ii) the basis of calculations
("Owner's Tax Statement"). Tenant shall (y) pay Owner the unpaid portion (if
any) of the Tax Payment within 30 days after receipt of Owner's Tax Statement,
and (z) on account of the immediately following Tax Comparison Year, pay Owner
commencing as of the first day of the month during which Owner's Tax Statement
is rendered, and on the first day of each month thereafter until a new Owner's
Tax Statement is rendered, 1/12th of the total payment for the current Tax
Comparison Year. The monthly payments based on the total payment for the current
Tax Comparison Year shall be adjusted from time to time to reflect Owner's
reasonable estimate of increases in Taxes for the immediately following Tax
Comparison Year.
(iii) Reduction of Comparison Year Taxes. If Taxes for a Tax Comparison
Year are reduced, the amount of Owner's costs and expenses of obtaining such
reduction (including legal, appraisers' and consultants' fees) shall be added to
and deemed part of Taxes for such Tax Comparison Year. If Owner obtains a refund
of Taxes for a Tax Comparison Year for which a Tax Payment has been made, Owner
shall credit against Tenant's next succeeding payment(s) of rent, Tenant's
Proportionate Share of the refund (but not more than the Tax Payment that was
the subject of the refund). If no payment(s) of rent shall thereafter be due,
Owner shall pay Tenant's Proportionate Share of such refund to Tenant within 30
days after Owner's receipt of the refund.*
(iv) Reduction of Base Tax. If Owner obtains a reduction in the Base
Tax, the Base Tax shall be reduced (such reduction to include the expenses
incurred by Owner in obtaining such reduction, including legal, appraisers' and
consultants' fees), prior Tax Payments (if any) shall be recalculated and Tenant
shall pay Owner, within 30 days after billing, Tenant's Proportionate Share of
the increased amount of Tax Payment for each prior Tax Comparison Year.
(v) Tax Protests. While proceedings for reduction in assessed
valuations are pending, the computation and payment of Tax Payments shall be
based upon the original assessments for the years in question. Tenant shall have
no right to institute or
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participate in any tax proceedings or other proceedings of a similar nature. The
commencement, maintenance, settlement and conduct thereof shall be in the sole
discretion of Owner.
(vi) Assessment with Other Properties. If, at any time, the Real
Property shall include buildings other than the Building, the Taxes shall
include the Building's equitable portion of the Taxes on all such buildings,
based upon an informal apportionment by the tax assessors, or if such
apportionment is not available, as shall be reasonably determined by Owner.
(vii) Tenant's Improvements. In the event an increase in assessed
valuation of the Real Property is caused by Tenant's improvements to the demised
premises, not including the work set forth in the Work Specifications and the
Floor Plan, Tenant shall pay the entire increase in Taxes attributable to such
improvements. If the assessed valuation for such improvements are not separately
stated, Tenant's obligation under this subparagraph shall be reasonably
determined by Owner.*
(viii) No Credit. If in a Tax Comparison Year the Taxes are less than
the Base Tax, the Tenant shall not be entitled to receive a credit, by way of a
reduction in Fixed Annual Rent, a refund of all or a portion of prior (or a
credit against future) Tax Payments or otherwise.
(ix) Partial Comparison Year. If the Expiration Date or earlier date
upon which the term may expire or terminate shall be a date other than the last
day of a Tax Comparison Year, Tenant's Tax Payment for such partial Tax
Comparison Year shall be prorated, (based upon Owner's reasonable estimate of
the tax payments for such Tax Comparison Year if same have not been established
as of such date).
46. Common Area Maintenance Charge.
(i) For the purposes of this Article:
(a) "Index" shall mean the Revised Consumer Price Index for
Urban Wage Earners and Clerical Workers for the New York - Northeastern New
Jersey Area, 1967 = 100, published by the United States Department of Labor,
Bureau of Labor Statistics.
(b) "Base Index" shall mean the Index for the first full
calendar month preceding the date of execution of this lease.
(ii) There is included in the Fixed Annual Rent an amount equal to
$1.50 per square foot to cover the initial cost to Owner of the expenses of
common area maintenance.
(iii) In the manner and at the times hereinafter set forth, Tenant
shall pay Owner as additional rent, for each lease year, for common area
maintenance, a sum computed by multiplying $1.50 per square foot (i.e.
$25,500.00 for the period commencing on the Commencement Date and shall be
increased by (i) $12,300.00 for the period commencing on the First Additional
Premises Commencement Date, (ii) $8,565.00 for the period commencing on the
Second Additional Premises Commencement Date and (iii) $6,450.00 for the period
commencing on the Third Additional Premises Commencement Date) by the percentage
increase, if any, by which the Index for the month preceding the last month of
such lease year exceeds the Base Index. In no event shall any such adjustment
result in a decrease of the Fixed Annual Rent as set forth on page 1 of this
lease.*
(iv) Within 135 days after the end of each lease year, Owner shall
deliver to Tenant a statement setting forth the amount (and supporting
calculations) of additional rent due to Owner for
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such prior lease year in accordance with the provisions of clause (iii) above
("Owner's Statement"). Tenant shall (x) make payment of any unpaid portion of
such additional rent within 30 days after receipt of Owner's Statement, and (y)
pay to Owner on account of the then current lease year, within 30 days after
receipt of Owner's Statement, an amount equal to the product obtained by
multiplying the total payment required for the preceding lease year by a
fraction, the denominator of which shall be 12 and the numerator of which shall
be the number of months of the current lease year which shall have elapsed prior
to the first day of the month immediately following the rendition of Owner's
Statement, and (z) pay Owner on account of the then current lease year,
commencing as of the first day of the month immediately following the rendition
of Owner's Statement and on the first day of each month thereafter until a new
Owner's Statement is rendered, 1/12 of the total payment for the preceding lease
year. The monthly payments based on the total payment for the preceding lease
year shall be adjusted from time to time during a lease year to reflect Owner's
reasonable estimate of increases in the Index. The payments required to be made
under clauses (y) and (z) above shall be subject to adjustment as and when
Owner's Statement for such lease year is rendered by Owner. If the payments
required to be made under clauses (y) and (z) above exceed the amount due for
such lease year pursuant to Owner's Statement, such excess shall be credited
against the next required payments due hereunder. If no such payments shall
thereafter be due, Owner shall pay such excess to Tenant.
(v) If any lease year shall be a period of less than 12 months,
Tenant's liability under this Article shall be prorated.
(vi) If the Index is altered, modified, converted or revised such
that it is no longer comparable to the Base Index then the Index shall be
adjusted to the figure that would have been arrived at had the change in the
manner of computing the Index not been altered. If such Index shall no longer be
published, then any substitute or successor index published by the Bureau of
Labor Statistics or other governmental agency of the United States, and
similarly adjusted as aforesaid, shall be used. If such Index (or a successor or
substitute index similarly adjusted) is not available, a reliable governmental
or other reputable publication selected by Owner shall be used.
47. Cleaning; Trash Removal.
(a) Tenant shall, at Tenant's expense, keep the demised premises clean
and in good order, to the satisfaction of Owner. Tenant shall, at Tenant's
expense, hire a reputable cleaning contractor to clean the office portion of the
demised premises, if any.
(b) Tenant shall pay the cost of removal of Tenant's refuse and
rubbish from the Building. Tenant shall contract for the removal of such refuse
and rubbish. Owner reserves the right to select a refuse disposal contractor to
serve the Building. The name of such contractor shall be available from Owner
upon request, and Tenant shall employ no other refuse disposal or carting
contractor without prior written approval from Owner. The removal of refuse and
rubbish shall be subject to such rules and regulations as in the judgment of
Owner are necessary for the proper operation of the Building and of the Park.
48. Utilities.
(a) Tenant shall obtain all utilities necessary for its use of the
demised premises directly from the utility companies or vendors servicing the
demised premises. The cost of such services shall be paid by Tenant directly to
such companies. Owner shall
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permit electric feeders, risers and wiring servicing the demised premises to be
used by Tenant to the extent available and safely capable of being used for such
purpose.
(b) Notwithstanding anything herein to the contrary, Owner may
redistribute or furnish electricity and/or gas ("utilities") to the demised
premises in a manner and in such reasonable quantities as may be required by
Tenant to service Tenant's permitted use in the demised premises. In such event,
Tenant shall pay to Owner within 30 days after billing, as additional rent, a
sum ("Utility Rent") determined in the manner set forth below. Such sum shall be
determined by an independent engineer or consulting firm selected by Owner (the
"Engineer"). The Engineer shall make a survey of Tenant's utility usage in the
demised premises, to determine the Utility Rent. In the event Tenant disputes
any such determination, Tenant may employ a consultant to make a survey of the
cost of such utility to the demised premises. The determination of such
consultant shall be promptly submitted to Owner. If Owner's and Tenant's
consultants cannot mutually agree as to the cost of such utility, the matter
shall be submitted to arbitration to the office of the American Arbitration
Association nearest the Building, in accordance with rules of such American
Arbitration Association. Pending such determination, Tenant shall continue to
pay the charges as billed by Owner. Each party shall pay the cost of its own
consultant. Any final adjustment shall be made at the time of the arbitration
award. In any event, the rate charged by Owner to Tenant shall not exceed the
rate that would be charged to Tenant by the utility company had Tenant purchased
the utility directly.*
(c) If either the quantity or character of the utility service is
changed by the utility company supplying such service to the Building, or is no
longer available or suitable for Tenant's requirements, or if there shall be a
change, interruption or termination of such service due to a failure or defect
on the part of the utility company, no such change, unavailability,
unsuitability, failure or defect shall constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any payment from Owner for
any loss, damage or expense, or to abatement or diminution of Fixed Annual Rent
or additional rent, or otherwise relieve Tenant from any of its obligations
under this lease, or impose any obligation upon Owner or its agents. In no event
shall Owner be responsible for any failures of the utility providing such
service or the negligence or other acts of third parties causing any such
interruption.
49. Amendments for Financing; Information for Mortgagees.
(a) If, in connection with obtaining or renewing financing for the Real
Property, an institutional lender shall request modifications in this lease as a
condition to such financing, Tenant will not withhold, delay or defer its
consent thereto, provided that such modifications are not material and neither
increase the monetary obligations of Tenant nor decrease the size of the demised
premises, the number of parking spaces provided for in Article 44 or the service
required to be provided by Owner.*
(b) Tenant shall, within a reasonable time after being requested,
submit such financial information as may be reasonably required by Owner's
mortgagee(s).
50. Broker. Tenant represents that, in the negotiation of this lease,
it dealt with no broker or any other person legally entitled to claim a
brokerage commission or finder's or consultant's fee with respect to this
transaction. Tenant shall indemnity, defend and hold Owner harmless from and
against all losses, costs, damages, expenses, claims and liabilities (including
court costs and attorneys' fees and disbursements) arising out of any inaccuracy
or alleged inaccuracy of this representation.
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51. Signs.
(a) Owner shall, upon Tenant's request, list on the Building's
directory ("Directory"), if any, the name of Tenant.
(b) No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by or in behalf of Tenant on any part
of the outside of the demised premises or the Building or on the inside of the
demised premises if the same is visible from the outside of the demised
premises, without the prior written consent of Owner. Requests for such signs
shall be accompanied by a sketch of the sign, its size, type and manner of
mounting, specifying the manner of mounting, and the materials and finishes
employed in the manufacture of same. Owner consents to Tenant's installation of
a ground mounted sign in a location visible from Skyline Drive to be determined
by Owner. The cost of such sign shall be shared equally by Owner and Tenant,
provided that Tenant's share of the cost of such sign shall not exceed
$2,000.00. Such sign shall have a black background and red or white lettering.
The sign shall be (i) 3 feet in height, 4 feet in length and 5 to 6 inches in
depth and (ii) concrete base mounted. The height of the sign, including the base
shall not exceed 4 feet in height. Approval by Owner shall not constitute
approval for purposes of complying with laws and requirements of public
authorities. It shall be Tenant's obligation to secure such approvals at
Tenant's expense. In the event of the installation of any sign by Tenant in
violation of the foregoing, Owner may remove same without liability and may
charge the expense incurred by such removal to Tenant.*
(c) Owner shall have the right, from time to time, to designate a name
for the Building and to change the name and/or address of the Building.
52. Holdover. Tenant acknowledges that possession of the demised
premises must be surrendered at the expiration or sooner termination of the
term, time being of the essence. Tenant shall indemnify, defend and save Owner
harmless against all liabilities, obligations, damages, penalties, claims,
costs, charges and expenses, including reasonable attorneys' fees and claims
made by a successor tenant based upon the failure or refusal of Tenant to
surrender the demised premises in a timely fashion. The parties agree that the
damage to Owner resulting from failure by Tenant to surrender possession of the
demised premises timely will be extremely substantial, will exceed the amount of
rent payable hereunder and will be impossible of accurate measurement.
Consequently, Tenant shall pay Owner for each month and for any portion of a
month during which Tenant holds over in the demised premises after expiration or
sooner termination of the term of this lease, a sum equal to 150% of the average
monthly rent which was payable per month under this lease during the last 3
months of the term. Nothing contained herein shall be deemed to authorize Tenant
to remain in occupancy of the demised premises after the expiration or sooner
termination of the term.
53. Insurance and Indemnity.
(a) Tenant shall provide, prior to entry upon the demised premises, and
maintain throughout the term of this lease, at its own cost, and with companies
rated not less than B+ Class IX by A.M. Best Company, Inc., or its successor and
authorized to do business in the State of New York (i) public liability and
property damage insurance in an amount not less than $2,000,000 combined single
limit for personal injury, death and property damage arising out of any one
occurrence, protecting Owner and Tenant against all claims for personal injury,
death or property damage occurring in, upon or adjacent to the demised premises
and any part thereof, or arising from, related to, or in any way connected with
the conduct
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and operation of Tenant's use or occupancy of the demised premises, which
insurance shall be written on an occurrence basis and name Owner (and at Owner's
request, Owner's mortgagees) as additional insureds, and (ii) workers'
compensation insurance covering all persons employed by Tenant or its
contractors in connection with work performed by or for Tenant. Tenant's
insurance shall be in a form reasonably satisfactory to Owner and provide that
it shall not be cancelled, terminated or changed except after 20 days' written
notice to Owner. All such policies or certificates (with evidence of payment of
the premium) shall be deposited with Owner not less than 30 days prior to the
day such insurance is required to be in force and upon renewals not less than 30
days prior to the expiration of the term of coverage. Owner shall have the right
from time to time during the term, on not less than 30 days notice, to require
that Tenant increase the amount and/or types of coverage required to be
maintained under this Article to the amounts and/or types generally required of
tenants in comparable buildings in Westchester County. The minimum limits of
liability insurance required pursuant to clause (i) shall in no way limit or
diminish Tenant's liability under paragraph (d) of this Article.
(b) Tenant shall not commit or permit anything to be done in, to or
about the demised premises, the Building, the Real Property, the Park, if
applicable, or any adjacent property, contrary to law, or which will invalidate
or be in conflict with the insurance policies carried by Owner or by others for
Owner's benefit, or do or permit anything to be done, or keep, or permit
anything to be kept, in the demised premises, which (i) could result in
termination of any of such policies, (ii) could adversely affect Owner's right
of recovery under any such policies, (iii) could subject Owner to any liability
or responsibility to any person, or (iv) would result in reputable and
independent insurance companies refusing to insure the Building or property of
Owner therein or in the Park, if applicable, in amounts satisfactory to its
mortgagees. If any such action by Tenant, or any failure by Tenant to comply
with the requirements of insurance bodies or to perform Tenant's obligations
hereunder, or any use of the demised premises by Tenant shall result in the
cancellation of any such insurance or an increase in the rate of premiums
payable with respect to such policies, Tenant shall indemnify, defend and hold
Owner harmless against all losses, including but not limited to any loss which
would have been covered by such insurance and the resulting additional premiums
paid by Owner. Tenant shall make such reimbursement within 30 days after receipt
of notice and evidence from Owner that such additional premiums have been paid,
without limiting Owner's rights otherwise provided in this lease.
(c) Tenant shall procure a clause in, or endorsement on, each of its
policies for fire or extended coverage insurance covering the demised premises
or personal property, fixtures or equipment located therein, pursuant to which
the insurance company waives subrogation or consents to a waiver of right of
recovery against Owner. Tenant agrees not to make claims against, or seek to
recover from, Owner for loss or damage to its property or property of others
covered by such insurance. To the extent Tenant shall be a self-insurer, Tenant
waives the right of recovery, if any, against Owner, its agents and employees,
for loss, damages or destruction of Tenant's property.
(d) Tenant shall defend, indemnify and save harmless Owner, its agents
and employees from and against any and all liabilities, obligations, damages,
penalties, claims, costs, charges and expenses, including reasonable attorneys'
fees, which may be imposed or incurred by or asserted against Owner and/or its
agents or employees by reason of any of the following occurring during the term,
or during any time prior to the Commencement Date that Tenant has access to or
possession of any part of the demised premises: (i) any work or thing done in,
on or about the demised premises by
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or at the instance of Tenant, or its invitees, (ii) any negligence or wrongful
act or omission on the part of Tenant or its invitees, (iii) any accident,
injury or damage to any person or property occurring in, on or about the demised
premises, or vault, passageway or space adjacent thereto caused by the
negligence of Tenant or its invitees, and (iv) any failure by Tenant to perform
or comply with any of the covenants, agreement, terms, provisions, conditions or
limitations in this lease to be performed or complied with by Tenant. If any
action or proceeding is brought against Owner by reason of any such claim,
Tenant shall, upon the request of Owner and at Tenant's expense, resist or
defend such action or proceeding by counsel reasonably acceptable to Owner.
Counsel selected by Tenant's approved insurance companies shall be deemed
acceptable.
54. Exculpation. Tenant shall look solely to the estate and interest of
Owner, its successors and assigns, in the Building for the collection of any
judgment (or other judicial process) recovered against Owner and based upon
breach by Owner of any of the terms, conditions or covenants of this lease on
the part of Owner to be performed. No other property or assets of Owner shall be
subject to levy, execution or other enforcement procedures for the satisfaction
of Tenant's remedies under or with respect to either this lease, the
relationship of landlord and tenant hereunder, or Tenant's use and occupancy of
the demised premises.
55. Rules and Regulations. Tenant and Tenant's invitees shall observe
and comply with the Rules and Regulations attached as Exhibit A, and such
additional reasonable Rules and Regulations as Owner or Owner's agents may from
time to time adopt. Notice of additional Rules and Regulations shall be given to
Tenant. Owner shall have no 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 or in the Park, if applicable, and Owner shall
not be liable to Tenant for violation of the same by any other tenant or its
invitees. In the event of a conflict between the Rules and Regulations and the
provisions of the lease, the provisions of the lease shall prevail. Owner shall
not discriminate against Tenant in its enforcement or promulgation of the Rules
and Regulations.*
56. Tenant's Alterations and Maintenance. (a) Tenant shall not employ
contractors in connection with any services, provisions, alterations or
maintenance, unless Owner has consented in writing to the contractor, it being
the intention of Owner to limit the number of such contractors employed in the
Building or Park, if applicable. If such consent has not been obtained Tenant
shall, if requested by Owner, forthwith cancel such contract. Owner's
disapproval of any contractor selected by Tenant must be accompanied by the
designation of one or more contractors acceptable to Owner, whose prices must be
reasonably competitive. If Owner does not approve or disapprove Tenant's
contractor within 7 business days after receipt of written request therefor, the
contractor so selected by Tenant shall be deemed approved by Owner. Tenant shall
not employ persons in connection with any such services, provisions, alterations
or maintenance the employment of whom would cause a strike, work stoppage or
slowdown by employees of contractors of Owner in the Building or Park, if
applicable. Owner does not consent to the reservation of title by any
conditional vendor, or the retention of a security interest by a secured party,
to any property which may be affixed to the realty.
(b) Alterations performed by Tenant in accordance with the provisions
of Article 3 must be performed in a good and workmanlike manner, in accordance
with the plans and specifications prepared by Tenant, at its expense, which
plans and specifications shall be subject to Owner's approval prior to the
performance of any such alteration. If Owner does not approve or disapprove such
plans and
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specifications within 15 business days after Tenant shall have submitted five
sets thereof to Owner, Owner shall be deemed to have approved same. The quality
standards applicable to such alterations shall in no event be less than Owner's
standards for the Building at the time such work is performed. Upon completion
of the alterations Tenant shall, at its expense, deliver to Owner five sets of
"as-built" drawings with respect thereto.
(c) If due to Tenant's alterations, changes in the Building's
sprinklers, passages, exits or other common areas or systems, are required,
Tenant shall perform same, pursuant to the provisions of this lease. In no
event, however, shall Tenant perform any work or cause any work to be done which
shall, in Owner's opinion, adversely affect the Building. In no event shall
Tenant make any installation on or through the roof of the Building without the
prior consent of Owner. Owner may, at its sole discretion, make such rules and
regulations as it deems necessary regarding access to or through the roof. Owner
makes no representation as to the load bearing capacity of the roof.
57. Notice.
(a) At the request of the holder(s) of any mortgage encumbering the
Real Property, Tenant shall serve upon such mortgagee(s) a copy of all notices
given by Tenant to Owner pursuant to paragraph (b) below, such service to be by
registered or certified mail addressed to such mortgagee(s) at the address
provided by such mortgagee(s) to Tenant.
(b) Except for rent bills, any notice, approval, consent, bill,
statement or other communication required or permitted to be given, rendered or
made by either party hereto to the other, pursuant to this lease or pursuant to
any applicable law or requirement or public authority (collectively, "notices"),
shall be in writing and shall be delivered personally or by registered or
certified mail, addressed to the other party at the address hereinabove set
forth. All notices given by either party pursuant to this Article may be given
by such party, their agents or attorneys. Either party may, by notice as
aforesaid, designate a different address or addresses for notices intended for
it. All notices given pursuant to this Article shall be deemed given on the
second business day after posting if mailed in Westchester County, and on the
third business day after posting if mailed outside of Westchester County, or
upon delivery if made personally. On and after the Commencement Date notices
directed to Tenant shall be addressed to Tenant at the Building.
58. Miscellaneous.
(a) Whenever it is provided that Owner shall not unreasonably withhold
or delay consent or approval or shall exercise its judgment reasonably (such
consent or approval and such exercise of judgment being collectively referred to
as "consent"), if Owner shall delay or refuse such consent, unless such delay or
refusal was in bad faith, Tenant shall not be entitled to make any claim, and
Tenant waives any claim for money damages (nor shall Tenant claim any money
damage by way of setoff, counterclaim or defense) based upon any claim or
assertion that Owner unreasonably withheld or delayed consent. Tenant's sole
remedy shall be an action or proceeding for specific performance, injunction or
declaratory judgment to enforce any such provision, but any such equitable
remedy which can be cured by the expenditure of money may be enforced personally
against Owner only to the extent of interest in the Building. Failure on the
part of Tenant to seek relief within 30 days after the date upon which Owner has
withheld its consent shall be deemed a waiver of any right to dispute the
reasonableness of such withholding of consent.*
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(b) Owner shall have no liability or responsibility if any service or
utility required to be provided by Owner is interrupted or stopped by reason of
unavoidable delays.
(c) If Tenant shall request the consent or approval of Owner to the
making of any alterations or to any other thing, and Owner shall seek and pay a
separate fee for the opinion of Owner's counsel, architect, engineer or other
representative or agent as to the form or substance thereof, Tenant shall pay
Owner, as additional rent, within 30 days after demand, all reasonable costs and
expenses of Owner incurred in connection therewith, including, in case of any
alterations, costs and expenses of Owner in reviewing plans and specifications.
There shall be no charge to Tenant for Owner's in-house staff.*
(d) This lease is submitted to Tenant for signature with the
understanding that it shall not bind Owner unless and until it has been executed
by Owner and delivered to Tenant or Tenant's attorney.
(e) Whenever reference is made to public halls, elevators, corridors,
etc. and if none such are present on or about the premises demised herein then
such reference shall have no relevance to the terms herein.
(f) In the event of any conflict between the printed provisions of the
lease and the Rider to the lease, the provisions of this Rider shall prevail.
(g) Owner's failure to prepare and/or deliver any statement or bill
required to be delivered to Tenant, or Owner's failure to make demand for
payment of Fixed Annual Rent or additional rent shall not be a waiver of, or
cause Owner to forfeit or surrender its rights to collect, any rent due.
Tenant's liability for all such payments shall continue unabated during the term
and shall survive the expiration or sooner termination of the term.
(h) The heating and air conditioning units are exclusive units
servicing the demised premises only. Tenant shall repair and replace, as
necessary, and maintain in good working order, Tenant's exclusive heating and
air conditioning units and systems servicing the demised premises. Such
maintenance shall include changing the systems filters not less frequently than
four times per year. Tenant shall enter into contracts for service and
maintenance pursuant to Article 56 and submit to Owner copies of such agreements
as well as copies of all invoices indicating dates of service and work
performed. All heating and air conditioning units servicing the demised premises
shall be delivered to Tenant in good working order.*
(i) Tenant shall not substantially vacate the demised premises during
the term of this lease unless it shall give Owner at least 10 days written
notice prior to such vacating. Notwithstanding the above, in the event Tenant
vacates the demised premises prior to the Expiration Date or such earlier date
upon which said term may expire or be terminated, Tenant shall remove all
fixtures, and installations (including but not limited to telephone systems,
communication systems and security systems), unless Owner has otherwise notified
Tenant pursuant to Article 3.
After such vacating, Owner may, but shall not be obligated to, enter
the demised premises, at anytime, to make such repairs, replacements and
improvements as Owner may deem necessary. Notwithstanding the foregoing,
Tenant's obligations under this lease shall remain in full force and effect,
including the obligation to maintain and secure the demised premises.
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MULTI/MAS 88
(j) The Certificate of Occupancy for the Building shall be for a
building of Low Hazard Occupancy as defined by the New York State Building Code.
(k) Tenant shall not cause (or allow any of its contractors, agents or
other persons or entities over whom or which it exercises any degree of control
to cause) to occur within the demised premises, or the Building or Park, if
applicable, the use, presence, discharge, spillage, disposal, uncontrolled loss,
generation, seepage or filtration of Hazardous Materials. Notwithstanding the
foregoing, Tenant may use ordinary cleaning materials in reasonable quantities
in the demised premises. Tenant shall, from time to time and upon Owner's
request, submit to Owner a written report with respect to Hazardous Materials
upon the demised premises (and within the Building and Executive Park) as a
result of the activities of Tenant (its contractors, agents or other persons or
entities over whom it exercises any degree of control). Such report shall be in
such form as may be prescribed by Owner and shall be submitted to Owner within
ten (10) days after request by Owner (or immediately upon receipt of any notice
of violation received from any governmental agency). Owner shall have the right
at all times during the term of this lease to (i) inspect the demised premises,
and (ii) conduct (or cause to be conducted) tests and investigations to
determine whether Tenant is in compliance with the provisions of this Section.
The cost of all such inspections, tests and investigations shall be borne by
Tenant. Owner's consent to Tenant's use or maintenance of Hazardous Materials
within the demised premises shall in no way limit Tenant's indemnification
obligations as otherwise set forth in this lease.
If Tenant obtains knowledge of the actual or suspected release of
Hazardous Materials, then Tenant shall promptly notify Owner of such actual or
suspected release. Tenant shall immediately notify Owner of any inquiry, test,
investigation or enforcement proceeding by or against Tenant involving a
release. If Tenant or its agents, employees or contractors shall cause or permit
a release, Tenant shall promptly notify Owner of such release and immediately
begin investigation and remediation of such release, as required by all
applicable laws and requirements of public authorities and insurance bodies.
(l) Anything herein to the contrary notwithstanding, if the first
month's rent or the security deposit shall not have been delivered to Owner upon
execution and delivery of this lease by Tenant to Owner (if required by the
provisions of this lease), then (in addition to such other remedies available to
Owner hereunder, at law or in equity) Owner shall not be obligated to commence
preparation of the demised premises for occupancy (if required by the provisions
of this lease) until much sums shall have been delivered to Owner.
(m) Tenant agrees not to disclose the terms, covenants, conditions or
other facts with respect to this lease, including, but not limited to, the Fixed
Annual Rent, to any person, corporation, partnership, association, newspaper,
periodical or other entity, except pursuant to a valid business purpose or as
required by laws and requirements of public authorities. This non-disclosure
and confidentiality agreement shall be binding upon Tenant without limitation as
to time, and a breach of this paragraph shall constitute a material breach under
this lease.*
(n) Owner, at its sole cost and expense, shall refurbish and maintain
the landscaping surrounding the main entrance and upper level of the demised
premises in a manner consistent with a first class executive park. Such work
shall cost approximately $10,000.00 and shall be performed by Owner at a time to
be determined by Owner but in any event prior to June 30, 1996.*
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MULTI/MAS 88
59. Amendments to Printed Form.
(a) Article 6 is further amended by adding the following at the end
thereof:
In the event of any increase in the fire insurance rate on the
Building and/or its contents during the term of this lease, caused by Tenant or
the nature or conduct of Tenant's use of the demised premises, Tenant shall pay
to Owner, the amount of the increase in the cost of such insurance to Owner and
other tenants of the Building, within ten (10) days after Owner has submitted to
Tenant a statement setting forth the amount due. In determining whether Tenant's
use or occupancy has resulted in an increase in the rate of fire insurance
applicable to the Building or any property located therein, the basis of
comparison shall be the rate which would be in effect were the Tenant not
occupying the Building.
Tenant, at Tenant's sole cost and expense, shall provide, keep and
maintain fire extinguishers and any other nonstructural fire safety equipment
required by laws and requirements of public authorities. At the expiration or
earlier termination of the term of this lease, Tenant may remove from the
demised premises any fire extinguishers provided by Tenant.
(b) Article 7 is amended by adding the following paragraph:
Notwithstanding anything contained herein to the contrary, and at
the election of the holder of any current or future mortgage encumbering all or
a portion of the demised premises, such mortgage shall be subordinate to this
lease with the same force and effect as if this lease had been executed,
delivered and recorded prior to the execution, delivery and recording of the
said mortgage, except however that the said subordination of the mortgage to the
lease shall not affect nor be applicable to and does expressly exclude:
(i) The prior right, claim or lien of the said mortgagee in,
to and upon any award or other compensation heretofore or hereafter to
be made for any taking by eminent domain of any part of the mortgaged
premises, and to the right of disposition thereof in accordance with
the provisions of the said mortgage;
(ii) The prior right, claim and lien of the said mortgagee in,
to and upon any proceeds payable under all policies of fire and rent
insurance upon the said mortgaged premises and as to the right of
disposition thereof in accordance with the terms of the said mortgage;
and
(iii) Any lien, right, power or interest, if any, which may
have arisen or intervened in the period between the recording of the
said mortgage and the execution of this lease, or any lien or judgment
which may arise at any time under the terms of this lease.
Although this clause shall be self-operative upon the election of any
such mortgagee, in confirmation hereof, Tenant shall execute promptly any
certificate that Owner or such mortgagee may request.
(c) Article 9 is amended by adding the following:
"Notwithstanding the provisions of Article 9, if the demised
premises or a major part thereof shall be totally, or substantially, damaged or
destroyed or rendered completely, or substantially, untenantable on account of
fire, casualty or other
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MULTI/MAS 88
cause (other than fire, casualty or other cause relating to Tenant's act or
failure to act where it had a duty to act), the rent and additional rent shall
completely abate as of the date of the damage or destruction and until Owner
shall repair, restore, replace and rebuild the demised premises (subject to
Owner's right to elect not to restore the same); provided, however, that should
Tenant reoccupy a portion of the demised premises for the purpose of conducting
business during the period the restoration work is taking place and prior to the
date that the same is made completely tenantable, rent and additional rent shall
be apportioned and payable by Tenant in proportion to the part of the demised
premises occupied by it. Nevertheless, in case of any substantial damage or
destruction to the demised premises, Tenant, as its sole remedy, may cancel this
lease by written notice to Owner, if (i) within 30 days from the date of the
damage or destruction, Owner does not deliver to Tenant a written certification
to the effect that the restoration can be completed within six months from the
date of the casualty; (ii) within 90 days of the date of damage of destruction
Owner does not let a contract which shall provide for the complete restoration
of the demised premises within a period of six (6) months from the date of the
damage or destruction; (iii) work under such contract or contracts has not
commenced within 120 days of the date of said damage or destruction; or (iv)
said work is not prosecuted with reasonable diligence to its completion within
six (6) months of the date of damage or destruction; provided that Tenant shall
not be entitled to cancel this lease pursuant to this sentence more than 10 days
after Owner shall have given written notice to Tenant that the state of facts
specified in clauses (i), (ii) or (iii) of this sentence, as the case may be,
has occurred. The period for the completion of the required repairs and
restoration work shall be extended by the number of days lost in the event such
loss results from unavoidable delays, or any cause beyond the reasonable control
of Owner."*
(d) Article 11 is amended by adding the following paragraph:
(1) Notwithstanding the foregoing provision of this Article,
Tenant may sublet all of the demised premises, but not less than all, to one
subtenant, for occupancy and use as permitted by Article 2, provided however,
that Tenant shall first obtain the consent of Owner, which consent shall not be
unreasonably withheld or delayed. In addition, Tenant may sublet each of the
Initial Premises, First Additional Premises, Second Additional Premises and/or
Third Additional Premises as separate units, to one subtenant each, for
occupancy and use as permitted by Article 2; provided however, that Tenant shall
first obtain the consent of Owner, which consent shall not be unreasonably
withheld or delayed. The consent by Owner to any subletting shall not in any way
be considered to relieve Tenant from obtaining the express consent of Owner to
any further subletting.*
(2) If Tenant shall have a bona fide intention to sublet the
demised premises, as stated above, it shall first notify Owner of such fact and
of the terms of Tenant's proposed subrental and other terms of subletting, and:
(i) If Tenant intends to sublet all or the demised premises,
then and in such event Owner shall have the option, exercisable by
notice within 30 days after the date of Tenant's notice, to elect to
cancel this lease, effective as of 6 months from the last day of the
month in which Owner shall have given such notice. Upon any such
cancellation of this lease by Owner, Tenant shall have no further
obligations to Owner with respect to this lease except for obligations
accrued up to the date of cancellation.
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MULTI/MAS 88
If Tenant intends to sublet less than all of the demised premises
as permitted under Section (1) above for a term that expires within six
months prior to the Expiration Date of this lease, Owner shall have the
option, exercisable by notice within 30 days after the date of Tenant's
notice, to elect to delete from the demised premises the space which
Tenant proposes to sublet. If space is deleted from the demised
premises, then effective as of the date of such deletion of space, the
Fixed Annual Rent hereunder shall abate proportionately according to
the ratio that the number of square feet of Rentable Area in the
deleted space bears to the number of square feet of Rentable Area in
the entire demised premises and all other provisions of this lease
shall be appropriately amended (and the parties shall execute and
deliver an amendment to this lease) so as to reflect such diminished
square footage of Rentable Area of the demised premises. Upon any such
deletion of space by Owner, Tenant shall have no further obligation to
Owner with respect to the deleted space, except for obligations accrued
up to the date of space deletion. Any reasonable costs incurred by
Owner in separating the deleted space from the remainder of the demised
premises, including but not limited to, the erection of demising walls,
the installation and/or separation of meters, restrooms, doorways, etc.
shall be borne by Tenant.
(ii) If Owner shall not have elected to cancel or delete
space as aforedescribed, and if within a period of 6 months from the
date of Tenant's notice, Tenant has not requested Owner's consent to a
specific subletting, then the provisions of this Article requiring
Tenant to give notice to Owner of intended subletting, and any Owner's
rights to elect, shall again prevail.
(iii) If Owner shall not exercise the option to cancel this
lease or delete space, Tenant may actively seek to obtain an
appropriate subtenant, and Tenant shall submit (x) the name and address
of such proposed subtenant, (y) reasonably satisfactory information as
to the nature and character of the business of the proposed subtenant,
and as to the proposed nature of its proposed use of the space, and (z)
banking, financial and other information relating to the proposed
subtenant reasonably sufficient to enable Owner to determine the
financial responsibility and character of the proposed subtenant.
(iv) In determining whether or not to consent to a proposed
subletting, Owner may take into consideration all relevant factors
surrounding the proposed sublease, including the following:
a. The business reputation of the proposed subtenant.
b. The nature of the business and the proposed use of the
demised premises by the proposed subtenant.
c. The financial condition of the proposed subtenant.
d. Restrictions contained in leases of other tenants of the
Building (but said restrictions shall not prohibit the
use of the demised premises specified in Article 2).
e. Not more than four subtenants, shall occupy the demised
premises at any one time.
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MULTI/MAS 88
(3) If such proposed subletting is effected by Tenant, Tenant shall pay
to Owner a sum equal to 50% of (i) any rent or other considerations paid to
Tenant by any subtenant less expenses or such subleasing (including but not
limited to brokerage commissions and costs of improvements) in excess of the
rent allocable to the demised premises which is then payable by Tenant to Owner
pursuant to the terms hereof, and (ii) any other profit or gain realized by
Tenant from any such subletting. All sums payable hereunder by Tenant shall be
payable to Owner upon receipt thereof by Tenant. Notwithstanding the foregoing,
at the option of the holder of any mortgage encumbering the Building, this
Section shall be inapplicable during any period that such holder is Owner
hereunder. This Section shall not be applicable to any assignment of this lease
by reason of a merger, consolidation or other corporate reorganization by
Tenant.*
(4) Tenant shall not knowingly advertise its space for subletting at a
rental rate lower than the greater of the then comparable rental rate for such
space in the Town of Mount Pleasant or the rental rate under this lease for such
space. When Owner or an affiliate of Owner has other equivalent space available
for leasing for a comparable term by Owner or an affiliate of Owner, Tenant
shall not sublet all or any portion of the demised premises to an occupant of
any space in the Building (or the Park if applicable), or to any party which has
negotiated with Owner or an affiliate of Owner for any space during the 9 months
immediately preceding Tenant's request for Owner's consent.*
(5) Tenant may not exercise its rights under this Article prior to the
Commencement Date.
(6) No sublease of the demised premises shall be effective unless and
until Tenant delivers to Owner duplicate originals of the instrument of sublease
(containing the provisions required by section (7)) and any accompanying
documents. Any such sublease shall be subject and subordinate to this lease.
(7) All subleases shall (i) be expressly subject to all of Tenant's
obligations hereunder, (ii) provide that the sublease shall not be assigned,
encumbered or otherwise transferred, that the premises thereunder shall not be
further sublet by the sublessee, in whole or in part, and that the sublease
shall neither suffer nor permit any portion of the sublet premises to be used or
occupied by others without the prior consent of Owner in each instance and (iii)
contain substantially the following provision:
"In the event a default under any superior lease of all or any portion
of the premises demised hereby results in the termination of such
superior lease, this lease shall, at the option of the lessor under any
such superior lease, remain in full force and effect and the tenant
hereunder shall attorn to and recognize such lessor as Owner hereunder
and shall promptly upon such lessor's request, execute and deliver all
instruments necessary or appropriate to confirm such attornment and
recognition. The lessee hereunder hereby waives all rights under any
present or future laws or otherwise to elect, by reason of the
termination of such superior lease, to terminate this sublease or
surrender possession of the premises demised hereby."
(8) Tenant shall remain fully responsible and liable for all acts and
omissions of any subtenant or anyone claiming under or through any subtenant
which shall be in violation of any of the obligations of Tenant hereunder and
any such violation shall be deemed a violation by Tenant. Tenant shall pay Owner
on demand any reasonable expenses incurred by Owner in acting upon any request
for consent to subletting pursuant to this Article.
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MULTI/MAS 88
(9) Whether or not Owner shall give its consent to any proposed
sublease, Tenant shall indemnity, defend and save harmless Owner against and
from any and all liabilities, obligations, damages, penalties, claims, costs,
charges and expenses (including reasonable attorney's fees) resulting from any
claims that may be made against Owner by the proposed sublessee, or by any
brokers or other persons claiming a commission or similar compensation in
connection with the proposed or final sublease.*
60. Option to Extend.
(a) If the term of this lease shall then be in full force and effect
and Tenant is not in default hereunder beyond applicable notice and grace
periods, Tenant shall have the option to extend the term of this lease for a
period of five (5) years (the "Extension Term") commencing on the day
immediately following the Expiration Date, provided however that Tenant shall
give Owner notice of its election to extend the term no earlier than 15 months
prior to the Expiration Date nor later than 9 months prior to the Expiration
Date of the initial term. Time shall be of the essence in connection with the
exercise of Tenant's option pursuant to this Article.
(b) Such extension of the term of this lease shall be upon the same
covenants and conditions, as herein set forth except for the Fixed Annual Rent
(which shall be determined in the manner set forth below), and except that
Tenant shall have no further right to extend the term of this lease after the
exercise of the single option described in paragraph (a) of this Section,
subject, however, to the provisions of clause (w) of Section 61(A)(i). If Tenant
shall duly give notice of its election to extend the term of this lease, the
Extension Term shall be added to and become a part of the term of this lease
(but shall not be considered a part of the initial term), and any reference in
this lease to the "term of this lease", the "term hereof", or any similar
expression shall be deemed to include such Extension Term, and, in addition, the
term "Expiration Date" shall thereafter mean the last day of such Extension
Term. Owner shall have no obligation to perform any alteration or preparatory or
other work in and to the demised premises and Tenant shall continue possession
thereof in its "as is" condition.
(c) If Tenant exercises its option for the Extension Term, the Fixed
Annual Rent during the Extension Term shall be 95% of the fair market rent for
the demised premises, as hereinafter defined.
(d) Owner and Tenant shall use their best efforts, within 30 days after
Owner receives Tenant's notice of its election to extend the term of this lease
for the Extension Term ("Negotiation Period"), to agree upon the Fixed Annual
Rent to be paid by Tenant during the Extension Term. If Owner and Tenant shall
agree upon the Fixed Annual Rent for the Extension Term, the parties shall
promptly execute an amendment to this lease stating the Fixed Annual Rent for
the Extension Term.
(e) If the parties are unable to agree on the Fixed Annual Rent for the
Extension Term during the Negotiation Period, then within 15 days after notice
from the other party, given after expiration of the Negotiation Period, each
party, at its cost and upon notice to the other party, shall appoint a person to
act as an appraiser hereunder, to determine the fair market rent for the
premises for the Extension Term. Each such person shall be a real estate broker
or appraiser with at least ten years' active commercial real estate appraisal or
brokerage experience (involving the leasing of office space as agent for both
landlords and tenants) in Westchester County. If a party does not appoint a
person to act as an appraiser within said 15 day period, the person appointed by
the other party shall be the sole appraiser and shall
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MULTI/MAS 88
determine the aforesaid fair market rent. Each notice containing the name of a
person to act as appraiser shall contain also the person's address. Before
proceeding to establish the fair market rent, the appraisers shall subscribe and
swear to an oath fairly and impartially to determine such rent.
If the two appraisers are appointed by the parties as stated in the
immediately preceding paragraph, they shall meet promptly and attempt to
determine the fair market rent. If they are unable to agree within 45 days after
the appointment of the second appraiser, they shall attempt to select a third
person meeting the qualifications stated in the immediately preceding paragraph
within 15 days after the last day the two appraisers are given to determine the
fair market rent. If they are unable to agree on the third person to act as
appraiser within said 15 day period, the third person shall be appointed by the
American Arbitration Association, upon the application of Owner or Tenant to the
office of the Association nearest the Building. The person appointed to act as
appraiser by the Association shall be required to meet the qualifications stated
in the immediately preceding paragraph. Each of the parties shall bear 50% of
the cost of appointing the third person and of paying the third person's fees.
The third person, however selected, shall be required to take an oath similar to
that described above.
The three appraisers shall meet and determine the fair market rent. A
decision in which two of the three appraisers concur shall be binding and
conclusive upon the parties. In deciding the dispute, the appraisers shall act
in accordance with the rules then in force of the American Arbitration
Association, subject however to such limitations as may be placed on them by
the provisions of this lease.
Notwithstanding the foregoing, in no event shall the Fixed Annual Rent
during the Extension Term be less than the Fixed Annual Rent during the last
year of the initial term of this lease.
(f) After the fair market rent for the Extension Term has been
determined by the appraiser or appraisers and the appraiser or appraisers shall
have notified the parties, at the request of either party, both parties shall
execute and deliver to each other an amendment of this lease stating the Fixed
Annual Rent for the Extension Term.
(g) If the Fixed Annual Rent for the Extension Term has not been agreed
to or established prior to the commencement of the Extension Term, then Tenant
shall pay to Owner an annual rent ("Temporary Rent") which Temporary Rent shall
be equal to 150% of the Fixed Annual Rent payable by Tenant for the last year of
the initial term. Thereafter, if the parties shall agree upon a Fixed Annual
Rent, or the Fixed Annual Rent shall be established upon the determination of
the fair market rent by the appraiser or appraisers, at a rate at variance with
the Temporary Rent (i) if such Fixed Annual Rent is greater than the Temporary
Rent, Tenant shall promptly pay to Owner the difference between the Fixed Annual
Rent determined by agreement or the appraisal process and the Temporary Rent, or
(ii) if such Fixed Annual Rent is less than the Temporary Rent, Owner shall
credit to Tenant's subsequent monthly installments of Fixed Annual Rent the
difference between the Temporary Rent and the Fixed Annual Rent determined by
agreement or the appraisal process.
(h) In describing the fair market rent during the Extension Term, the
appraiser or appraisers shall be required to take into account the rentals at
which leases are then being concluded (as of the last day of the initial term)
(for 5 year leases without renewal options with the lessor and lessee each
acting prudently, with knowledge and for self-interest, and assuming that
neither is
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under undue duress) for comparable space in the Building and in comparable
buildings in the Town of Mount Pleasant.
(i) The option granted to Tenant under this Article 60 nay be exercised
only by Tenant, its affiliates, permitted successors and assigns, and not by any
subtenant or any successor to the interest of Tenant by reason of any action
under the Bankruptcy Code, or by any public officer, custodian, receiver, United
States Trustee, trustee or liquidator of Tenant or substantially all of Tenant's
property. Tenant shall have no right to exercise this option subsequent to the
date Owner shall have the right to give the notice of termination referred to in
Article 17 unless Tenant cures the default within the applicable grace period.
Notwithstanding the foregoing, Tenant shall have no right to extend the term if,
at the time it gives notice of its election (i) Tenant shall not be in occupancy
of substantially all of the Demised Premises or (ii) the demised premises or any
part thereof shall be the subject of a sublease. If Tenant shall have elected to
extend the term, such election shall be deemed withdrawn if, at any time after
the giving of notice of such election and prior to the commencement of the
Extension Term, Tenant shall sublease all or any portion of the demised
premises.*
61. Option For Fourth Additional Premises. A. (i) Subject to the
provisions of this Article, Tenant shall have the option to lease from Owner the
space designated as Fourth Additional Premises on the attached floor plan,
consisting of approximately 14,255 square feet, ("Fourth Additional Premises")
for a term commencing on the earlier of (i) the expiration or termination of the
existing space lease for such Fourth Additional Premises or (ii) November 1,
1999. In no event shall Owner fail to deliver the Fourth Additional Premises by
November 1, 1999, unless such failure is caused by (i) unavoidable delays or
(ii) the tenant presently occupying the Fourth Additional Premises holds over in
the Fourth Additional Premises without Owner's permission. In such event, if
Tenant has exercised its option as set forth herein, Owner shall use its best
efforts to evict the existing tenant as expeditiously as possible. Owner shall
notify Tenant if Owner shall be unable to deliver the Fourth Additional Premises
by November 1, 1999.
In the event the Fourth Additional Premises are not delivered by Owner (for
reasons other than that the present tenant occupying the Fourth Additional
Premises holds over in the Fourth Additional Premises) by February 1, 2000,
Tenant, as its sole remedy, may elect to terminate this lease, provided that
notice of such election shall be given to Owner no later than February 11, 2000,
time being of the essence in the giving of such notice. If Tenant shall so
elect, the parties shall then be released of all liabilities hereunder, each to
the other. If Tenant shall terminate this lease pursuant to this paragraph, the
effective date of termination shall be August 31, 2000.
If Tenant shall not be in default beyond applicable notice and cure periods on
the expiration or termination date of the existing space lease for the Fourth
Additional Premises and the date upon which Tenant shall exercise the option
hereinafter referred to, Tenant shall have the option to lease all, but not less
than all of the Fourth Additional Premises on an as-is basis, provided Tenant
gives Owner written notice of such election within 30 days after Tenant shall
receive Owner's notice that such Fourth Additional Premises is available for
leasing to Tenant. If Tenant fails or refuses to exercise this option within the
time period set forth above (time being of the essence), then and in such event
Tenant shall have no further rights under this Section with respect to such
Fourth Additional Premises. If Tenant shall elect to lease said Fourth
Additional Premises: (t) said Fourth Additional Premises shall be deemed
incorporated within and part of the demised premises on the date that Owner
shall notify Tenant that such Fourth Additional
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Premises is ready for occupancy by Tenant, (u) the Fixed Annual Rent payable
under the lease shall be increased by an amount such that during the balance of
the term of this lease the Fixed Annual Rent for said Fourth Additional Premises
shall be 95% of the then fair market rent for the Fourth Additional Premises, as
determined in the manner set forth in clause (ii) below, (v) provided that
Tenant shall have a net worth (as determined in accordance with generally
accepted accounting principles) at the time it exercises its option hereunder in
an amount at least equal to 95% of the net worth of Tenant on the date of this
lease (as determined in accordance with generally accepted accounting
principles), Owner shall reimburse Tenant in an amount not to exceed the product
of (x) $188,878.75 multiplied by (z) a fraction, the numerator of which shall be
the number of days between the date that Tenant shall take occupancy of the
Fourth Additional Premises and the Expiration Date of the three year extension
term of this lease (as determined by clause (w) below) and the denominator of
which shall be 1,825 ("Owner's Fourth Additional Premises Reimbursement"), for
work to be performed by Tenant in the Fourth Additional Premises; such
reimbursement to be made promptly after Owner's receipt of paid invoices
evidencing the cost of Tenant's work in the Fourth Additional Premises (Tenant
shall submit certified financial statements of Tenant to Owner at the time of
its exercise of its option hereunder evidencing Tenant's net worth), provided,
however, that in the event that Tenant shall employ Owner to perform Tenant's
work in the Fourth Additional Premises, then in lieu of reimbursing Tenant for
the cost of Tenant's work, Owner shall credit Tenant in an amount equal to
Owner's Fourth Additional Reimbursement against the cost of the work to be
performed by Owner in the Fourth Additional Premises, (w)(1) the term of this
lease shall be deemed automatically extended for a period of three (3) years
commencing on the day immediately following the Expiration Date and (2) Article
60 shall remain in full force and effect, mutatis mutandis, except that Article
60 shall be amended so that Tenant shall have an option to extend the term of
this lease for an additional period of two (2) years instead of five (5) years,
(x) the number of parking spaces for executive cars shall be increased by seven
(7) spaces and the number of parking spaces for employee cars shall be increased
by sixty-four (64) spaces, (y) Tenant's Proportionate Share shall be increased
by 28.51%, and (z) all other terms and provisions set forth in the lease shall
apply, except that Owner not be required to perform any work with respect to
said Fourth Additional Premises (except Tenant may use Owner's architectural
design services in connection with Tenant's work in the Fourth Additional
Premises without additional charge). If the term of this lease is deemed
extended pursuant to clause (w) above, the Fixed Annual Rent payable by Tenant
for the entire demised premises during such extension term shall be 95% of the
fair market rent for the demised premises as determined by clause (ii) below,
mutatis mutandis. The fair market rent for the Fourth Additional Premises and
the fair market rent for the entire demised premises during the extension term
shall be determined at the same time.*
The parties shall promptly execute an amendment of this lease
confirming Tenant's election to lease said Fourth Additional Premises, the
incorporation of said Fourth Additional Premises into the demised premises and,
if applicable, the extension of the term of this lease.*
(ii) Owner and Tenant shall use their beat efforts, within 30 days
after Owner receives Tenant's notice of its election to lease said Fourth
Additional Premises, ("Negotiation Period") to agree upon the Fixed Annual Rent
to be paid by Tenant for said Fourth Additional Premises. If Owner and Tenant
shall agree upon the Fixed Annual Rent, the parties shall promptly execute an
amendment to this lease stating the Fixed Annual Rent for the Fourth Additional
Premises.
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MULTI/MAS 88
If the parties are unable to agree on the Fixed Annual Rent for said
Fourth Additional Premises during the Negotiation Period, then within 15 days
notice from the other party, given after expiration of the Negotiation Period,
each party, at its cost and upon notice to the other party, shall appoint a
person to act as an appraiser hereunder, to determine the fair market rent for
the Fourth Additional Premises. Each such person shall be a real estate broker
or appraiser with at least ten years' active commercial real estate appraisal or
brokerage experience (involving the leasing of similar space as agent for both
landlords and tenants) in Westchester County. If a party does not appoint a
person to act as an appraiser within said 15 day period, the person appointed by
the other party shall be the sole appraiser and shall determine the aforesaid
fair market rent. Each notice containing the name of a person to act as
appraiser shall contain the person's address. Before proceeding to establish the
fair market rent, the appraisers shall subscribe and swear to an oath fairly and
impartially to determine such rent.
If the two appraisers are appointed by the parties as stated in the
immediately preceding paragraph, they shall meet promptly and attempt to
determine the fair market rent. If they are unable to agree within 45 days after
the appointment of the second appraiser, they shall attempt to select a third
person meeting the qualifications stated in the immediately preceding paragraph
within 15 days after the last day the two appraisers are given to determine the
fair market rent. If they are unable to agree on the third person to act as
appraiser within said 15 day period, the third person shall be appointed by the
American Arbitration Association, upon the application of Owner or Tenant to the
office of the Association nearest the Building. The person appointed to act as
appraiser by the Association shall be required to meet the qualifications stated
in the immediately preceding paragraph. Each of the parties shall bear 50% of
the cost of appointing the third person and of paying the third person's fees.
The third person, however selected, shall be required to take an oath similar to
that described above.*
The three appraisers shall meet and determine the fair market rent. A
decision in which two of the three appraisers concur shall be binding and
conclusive upon the parties. In deciding the dispute, the appraisers shall act
in accordance with the rules then in force of the American Arbitration
Association, subject however, to such limitations as may be placed on them by
the provisions of this lease.
After the Fixed Annual Rent for the Fourth Additional Premises has been
determined by the appraiser or appraisers and the appraiser or appraisers shall
have notified the parties, at the request of either party, both parties shall
execute and deliver to each other an amendment of this lease stating the Fixed
Annual Rent for the Fourth Additional Premises.
If the Fixed Annual Rent for said Fourth Additional Premises has not
been agreed to or established prior to the incorporation of said Fourth
Additional Premises in the demised premises, then Tenant shall pay to Owner an
annual rent ("Temporary Rent") which Temporary Rent on a per square foot basis
shall be equal to the Fixed Annual Rent, on a per square foot basis, then being
paid by Tenant for the demised premises.
Thereafter, if the parties shall agree upon a Fixed Annual Rent, or the
Fixed Annual Rent shall be established upon the determination of the fair market
rent by the appraiser or appraisers, at a rate at variance with the Temporary
Rent (i) if such Fixed Annual Rent is greater than the Temporary Rent, Tenant
shall promptly pay to Owner the difference between the Fixed Annual Rent
determined by agreement or the appraisal process and the
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MULTI/MAS 88
Temporary Rent, or (ii) if such Fixed Annual Rent is less than the Temporary
Rent, Owner shall credit to Tenant's subsequent monthly installments of Fixed
Annual Rent the difference between the Temporary Rent and the Fixed Annual Rent
determined by agreement or the appraisal process.
In determining the fair market rent for said Fourth Additional
Premises, the appraiser or appraisers shall be required to take into account the
rentals at which leases are then being concluded for comparable space in the
Building and in comparable buildings in the Town of Mount Pleasant. In no event
shall the Fixed Annual Rent for the Fourth Additional Premises, on a per square
foot basis, be less than the Fixed Annual Rent for the demised premises, on a
per square foot basis.
B. The option granted to Tenant under this Article 61 may be exercised
only by Tenant, its permitted successors and assigns, and not by any subtenant
or any successor to the interest of Tenant by reason of any action under the
Bankruptcy Code, or by any public officer, custodian, receiver, United States
Trustee, trustee or liquidator of Tenant or substantially all of Tenant's
property. Tenant shall have no right to exercise any of such options subsequent
to the date Owner shall have the right to give the notice of termination
referred to in Article 17. Notwithstanding the foregoing, Tenant shall have no
right to exercise the option granted to Tenant hereunder if, at the time it
gives notice of such election (i) Tenant shall not be in occupancy of
substantially all of the demised premises or (ii) the demised premises or any
part thereof shall be the subject of a sublease. If Tenant shall have elected to
exercise its option hereunder, such election shall be deemed withdrawn if, at
any time after the giving of notice of such election and prior to the occupancy
of the Fourth Additional Premises, Tenant shall sublease all or any part of the
demised premises.*
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MULTI/MAS 88
Exhibit "A"
Rules and Regulations
1. Tenant shall keep the Tenant's loading dock areas, if any, free of refuse
and debris.*
2. The sidewalks, entrances, passages, lobbies, elevators, vestibules,
stairways, corridors and halls shall not be obstructed or encumbered by
Tenant or used for any purpose other than ingress and egress to and from
the demised premises. Tenant shall not permit any of its invitees to
congregate in any of said areas. No door mat shall be placed or left in any
public hall (or outside any entry door of the demised premises). No
property of Tenant may be kept or placed outside the demised premises.
3. Tenant and its invitees shall not litter any portion of any public area of
the Building, the Park, if applicable, or the Real Property.
4. Tenant shall not mark, paint, drill into or in any way deface any part of
the demised premises or the Building, except pursuant to Articles 3 and 56
of this lease. No boring, cutting or stringing of wires shall be permitted,
except with the prior consent of Owner, and as Owner may direct.*
5. The sashes, sash doors, skylights, windows and doors that reflect or admit
light and air into the halls, passageways and other public places shall not
be covered or obstructed by Tenant, except for window blinds or other
window decorations. Bottles, parcels and other articles shall not be placed
on window sills by Tenant.*
6. No showcases or other articles shall be put in front of or affixed to any
part of the exterior of the Building, nor placed in the halls, corridors or
vestibules by Tenant.
7. Tenant shall not discharge or permit to be discharged any materials, which
may cause damage, into waste lines, vents or flues. The water and wash
closets and other plumbing fixtures shall not be used for any purpose other
than those for which they were designed and constructed, and no sweepings,
rubbish, rags, corrosives, acids or other substances shall be thrown or
deposited therein. All damages resulting from any misuse of such fixtures
shall be borne by the tenant who, or whose invitees, shall have caused the
same.
8. No unreasonable noise (including, but not limited to, music or the playing
of musical instruments, recordings, radio or television) which, in Owner's
judgment, might disturb other tenants in the Building or the Park, if
applicable, shall be made or permitted by Tenant. Nothing shall be done or
permitted in the demised premises by Tenant which would unreasonably impair
or interfere with the use or enjoyment by any other tenant of any other
space in the Building or the Park, if applicable. Tenant shall not throw
anything out of the doors, windows or skylights or into the passageways.*
9. No equipment which generates unreasonable noise or vibration may be
installed in the demised premises except with the prior consent of Owner,
and as Owner may direct. Any condition which causes transmission of sounds,
noise or vibrations outside of the demised premises shall be corrected by
Tenant.*
10. Neither Tenant nor its invitees shall bring or keep upon the demised
premises any explosive fluid, chemical or substance.
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MULTI/MAS 88
nor any flammable or combustible objects or materials, except pursuant to
Section 58(k) of this lease.*
11. No awnings or other projections shall be attached to the outside walls of
the Building. No curtains, blinds, shades, or screens shall be attached to
or hung in, or used in connection with, any window or door of the demised
premises, without the prior consent of Owner. Such curtains, blinds, shades
or screens must be of a quality, type, design and color, and attached in
the manner, approved by Owner.
12. No sign, insignia, advertisements, object, notice or other lettering shall
be exhibited, inscribed, painted or affixed by any Tenant on any part of
the outside or inside of the demised premises or the Building without the
prior written consent of Owner, except pursuant Article 51 of this lease.
In the event of the violation of the foregoing by Tenant, Owner may remove
the same without any liability, and may charge the expense incurred in such
removal to Tenant. Interior signs and lettering on doors and directory
tablets shall, if and when approved by Owner, be inscribed, painted or
affixed by Owner at the expense of Tenant, and shall be of a size, color
and style acceptable to Owner.*
13. Owner reserves the right to rescind, alter or waive any Rule or Regulation
at any time prescribed for the Building, when, in its reasonable judgment,
it deems it necessary or desirable for the reputation, safety, care or
appearance of the Building, Real Property or the Park, if applicable, or
the preservation of good order therein, or the operation or maintenance of
the Building, or the Park, if applicable, or the equipment thereof, or the
comfort of tenants or others in the Building. No recision, alteration or
waiver of any Rule or Regulation in favor of one tenant shall operate as a
rescission, alteration or waiver in favor of any other tenant. Owner shall
not discriminate against Tenant in the promulgation or enforcement of the
Rules and Regulations.*
14. Tenant shall, upon the termination of its tenancy, turn over to Owner all
keys of the demised premises and stores, offices and toilet rooms, either
furnished to, or otherwise procured by, Tenant and in the event of the loss
of any keys, Tenant shall pay to Owner the cost of replacing the locks and
keys.
15. The demised premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose. Canvassing, soliciting and peddling in the
Building are prohibited and Tenant shall cooperate to prevent the same.
Tenant shall not cause or permit any odors of cooking or other processes or
any odors to emanate from the demised premises which would annoy other
tenants or create a public or private nuisance. No cooking shall be done in
the demised premises except as is expressly permitted in the lease.
16. Tenant shall keep all windows in the demised premises clean at all times.
However, Tenant shall not be required to clean windows more often than once
every two (2) months.
17. Owner shall not unreasonably withhold or delay from Tenant any approval
provided for in the Rules and Regulations.
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MULTI/MAS 88
Exhibit "B"
WORK SPECIFICATIONS
Premises will be delivered in broom clean condition finished substantially "as
is" except as set forth under Additional Work Specifications hereinbelow, if
any, and the Floor Plans attached.
Walls, doors, ceilings and floors shall be as currently installed. All
alterations, additions or deletions called for in the Additional Work
Specifications or in the floor plan attached hereto shall be furnished and
prepared to the standards now existing on the premises.
Convenience wall outlets, lighting switches, and lighting fixtures shall be as
installed. Supplementary or replacement lamping by Tenant. Tenant shall not
overload electric circuits.
Standard duplex convenience outlets, ceiling lighting, lighting switches,
heating and air conditioning equipment, meter and main control panel shall be
wired and operative. Any wiring distribution other than for the above may be
used by Tenant to the extent serviceable but is not warranted by Owner as to
operating condition.
Heating and air conditioning equipment has been installed and will be turned
over to Tenant in good operating condition. Tenant shall be responsible for the
maintenance thereof in accordance with Article 58 (i) of this Lease.
Heating equipment is designed for maintaining 70-degrees F. when outside
temperature is 0-degrees F. and wind velocity is 15 MPH. Air conditioning
equipment is designed to maintain a 15-degrees temperature draw-down when the
outside temperature is 95-degrees F. dry bulb and 75-degrees F. wet bulb. Air
conditioning specifications are designed on the basis of doors and windows being
closed as well as all windows in the air conditioned premises being provided
with venetian blinds, shades or drapes which shall be closed, depending on the
position of the sun. Tenant shall install, repair or supplement such window
coverings as necessary. Existing window blinds shall remain throughout the
demised premises.
Electric Service
The premises shall be equipped with an electric meter and control panel capable
of supplying a minimum of 500 Amperes, 120/208V, 3 phase 4 wire to the premises.
Floor Load
Tenant shall not impose a floor load greater than 75 lbs. per square foot on the
upper level and 300 lbs. per square foot on the lower level, except as may
otherwise be set forth on the attached Floor Plan.
Rest Rooms
Rest rooms are as shown on the attached floor plan.
Additional Work Specifications
Owner, at its sole cost and expense, shall (i) paint the Initial Premises and
First Additional Premises in a color to be chosen by Tenant from Owner's
standard paint selection chart, (ii) carpet the Initial Premises and First
Additional Premises in a color to be chosen by Tenant from Owner's standard
carpet selection chart, and
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MULTI/MAS 88
(iii) install new ceiling tile (Owner's standard) in the Initial Premises and
First Additional Premises.
All selections or designations to be made by Tenant are to be made within five
(5) business days after request by Owner. If Tenant has not made such
designations or selections within said period, the Owner shall be authorized to
do so on behalf of Tenant.
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