New York-Hawthorne-12 Skyline Drive Lease - Mack-Cali Realty LP and Creative Visual Enterprises Ltd.
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STANDARD FORM OF LOFT LEASE
The Real Estate Board of New York, Inc.
@Copyright 1982. All Rights Reserved.
Reproduction in whole or in part prohibited.
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AGREEMENT OF LEASE, made as of this 9th day of July 1999, between MACK-CALI
REALTY, L.P., a Delaware limited liability company, having an address at 100
Clearbrook Road, Elmsford, New York 10523
party of the first part, hereinafter referred to as OWNER, and
CREATIVE VISUAL ENTERPRISES, LTD., a Delaware corporation, having an address at
56 Lafayette Avenue, North White Plains, New York 10603
party of the second part, hereinafter referred to as TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner the
area of the upper level floor shown on the floor plan annexed hereto as Exhibit
C (the "demised premises") containing approximately 17,850 square feet (the
"Rentable Area") -- The parties agree that for the purposes of this lease, the
demised premises shall be deemed to be approximately 17,850 square feet.
in the building known as 12 Skyline Drive (the "Building")
Hawthorne, New York, for the term of ten (10) years and three (3) months
(or until such term shall sooner cease and expire as hereinafter provided) to
commence on the
as set forth in Article 42
both dates inclusive, at an annual rental rate of (the "Fixed Annual Rent")
$267,750.00 per annum for the first two rent years; $321,300.00 per annum for
the next four rent years; $357,000.00 per annum for the balance of the term.
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).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Occupancy 1. Tenant shall pay the rent as above and hereinafter provided.
2. Tenant shall use and occupy demised premises for general
office, new media productions, audio productions and video
production provided such use is in accordance with the
Certificate of Occupancy for the building, if any, and for no
other purposes.
Alterations: 3. Tenant shall make no changes in or to the demised premises of
any nature without Owner's prior written consent. Subject to the
prior written consent of Owner, and to the provisions of this
article, Tenant at Tenant's expense, may make 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. 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 reasonably 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 thirty
(30) days after Tenant receives notice of the filing of said lien 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 provided that Tenant
requested Owner to advise Tenant if removal might be required, and Owner so
advised Tenant at the time approval of the installation was granted. 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 property 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 expenses. (See Article 56)
Repairs: 4. Owner shall maintain and repair the exterior of and the public
portions of the building. 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 appurtenances 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 expenses thereof incurred by Owner
shall be collectible, as additional rent, after rendition of a bill or statement
therefor. If the demised premises be or become infested with vermin, 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. 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, appurtenances 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 56)
Window 5. Tenant will not clean nor require, permit, suffer or allow any
Cleaning 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 6. Prior to the commencement of the lease term, if Tenant is then
of Law, Fire in possession, and at all times thereafter, Tenant shall, at
Insurance, Tenant's sole cost and expense, promptly comply with all present
Floor Loads: 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, 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 thereto. 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 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
judgment, to absorb and prevent vibration, noise and annoyance. (See Article 59)
Subordina- 7. This lease is subject and subordinate to all ground or
tion: 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. (See Article 59)
Property-- 8. Owner or its agents shall not be liable for any damage to
Loss, Damage, property of Tenant or of others entrusted to employees of the
Reimbursement, building, nor for loss of or damage to any property of Tenant by
Indemnity: theft or otherwise, nor for any injury or damage to persons or
property resulting from any cause of 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 not constitute an eviction. 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 of proceeding by counsel approved by Owner in writing,
such approval not to be unreasonably withheld.
Destruction, 9. (a) If the demised premises or any part thereof shall be
Fire and damaged by fire or other casualty, Tenant shall give immediate
Other notice thereof to Owner and this lease shall continue in full
Casualty: 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 such date and any payments of rent made by Tenant which were
on account of any period subsequent to such date shall be returned to Tenant,
unless 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 ten (10) days after written notice from Owner
that the premises are substantially ready for Tenant's occupancy and a
certificate of occupancy or other permission to occupy (if required) has been
issued. (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
releasors' 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 benefiting 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 Real
Property Law and agrees that the provisions of this article shall govern and
control in lieu thereof. 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 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 its normal 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 reasonably be
completed within six months from the date of the casualty; (ii) within 90 days
of the date of damage or 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 30 days in each instance 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.."*
Eminent 10. If the whole or any part of the demised premises shall be
Domain: acquired or condemned by Eminent Domain for any public or quasi
public use or purpose, then and in that event, the term 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.
Assignment, 11. Tenant, for itself, its heirs, distributees, executors,
Mortgage, administrators, legal representatives, successors and assigns,
Etc.: 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 to 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.
Electric 12. Rates and conditions in respect to submetering or rent
Current: inclusion, as the case may be, to be added in RIDER attached
hereto. Tenant covenants and agrees that at all times its use of
electric current shall not exceed the capacity of existing leeders 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. (See Article 48)
Access to 13. Owner or Owner's agents shall have the right (but shall not
Premises: be obligated) to enter the demised premises in any emergency at
any time, and, at other reasonable times, 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 Owner shall use reasonable efforts to minimize interference with
Tenant's business, to safeguard Tenant's property and to complete its work as
expeditiously as reasonably practicable. 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. 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, 14. No Vaults, vault space or area, whether or not enclosed or
Vault Space, covered, not within the property line of the building is leased
Area: 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. Owner represents that the parking area and
all areas that Tenant has a right to use hereunder are owned by Owner. 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. 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 provided
such case is not dismissed within 90 days after it is commenced; 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 its 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.
Default: 17. (1) If Tenant defaults in fulfilling any of the covenants of
this lease or any other lease between Tenant and Owner or any
other entity in which Owner or partner of Owner is lessor or principal or
shareholder of lessor including 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
S 235 of Title 11 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 five (5) days 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
fifteen (15) days after the commencement of the term of this lease, of which
fact Owner shall be the sole judge; then in any one or more of such events, upon
Owner serving a written ten (10) days notice upon Tenant specifying the nature
of said default and upon the expiration of said ten (10) days, 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) day period, and if Tenant shall not have
diligently commenced curing such default within such ten (10) day period, and
shall not thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default except no more than two such default notices in any
12 month period shall be required for default in payment of rent, then Owner may
serve a written three (3) days' notice of cancellation of this lease upon
Tenant, and upon the expiration of said three (3) days this lease and the term
thereunder shall end and expire as fully and completely as if the expiration of
such three (3) 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 the term shall expire as aforesaid: or if Tenant shall make
default in the payment of the rent reserved herein or any item of additional
rent herein mentioned or any part of either or in making any other payment
herein required: then and in any of such events Owner may without notice,
re-enter the demised premises either by force or otherwise, and dispossess
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 make default hereunder prior to the date fixed as the
commencement of any renewal or extension of this lease, Owner may cancel and
terminate such renewal or extension agreement by written notice.
Remedies of 18. In case of any such default, re-entry, expiration and/or
Owner and dispossess by summary proceedings or otherwise, (a) the rent, and
Waiver of additional rent, shall become due thereupon and be paid up to the
Redemption: 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 convenants 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 or 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,
attorney's 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 19. If Tenant shall default in the observance or performance of
Expenses: any term or covenant on Tenant's part to be observed or performed
under or by virtue of any of the terms or 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 default by Tenant in the covenant to pay rent hereunder,
makes any reasonable expenditures or incurs any obligations for the payment of
money, including but not limited to reasonable attorney's fees, in instituting,
prosecuting or defending any action or proceedings, then Tenant will reimburse
Owner for such sums 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 to Tenant therefor. If Tenant's lease
term shall have expired at the time of making of such expenditures or incurring
of such obligations, such sums shall be recoverable by Owner as damages. Tenant
has no obligation to reimburse Owner for legal costs or attorney fees if Tenant
is the prevailing party in any action or proceeding.
Building 20. Owner shall have the right at any time without the same
Alterations constituting an eviction and without incurring liability to
and Tenant therefor to change the arrangement and or location of
Management: public entrances, passageways, doors, doorways, corridors,
elevators, stairs, toilets or other public parts of the building
provided same does not adversely affect access to or visibly of the demised
premises and to change the name, number or designation by which the building may
be known. Owner shall not name the building after any other tenants (but the
foregoing shall not prelude other tenants from installing exterior signage
bearing their name/logo etc. There shall be no allowance to Tenant for
diminution 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 in 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 Tenant's social or business visitors as the Owner may deem necessary
for the security of the building and its occupants.
No Repre- 21. Neither Owner nor Owner's agents have made any
sentations representations or promises with respect to the physical
by Owner: 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, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provision of this lease. Owner represents to the best of its
knowledge that there are no unlawful quantities of asbestos, PCB's or other
Hazardous Materials in the demised premises. Subject to performance of Owner's
obligations under this lease, Tenant has inspected the building and the demised
premises and is thoroughly acquainted 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 latent defects. All understanding 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 22. Upon the expiration or other termination of the term of this
Term: 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 of 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 23. Owner covenants and agrees with Tenant that upon Tenant
Enjoyment: 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 34 hereof and to the ground leases,
underlying leases and mortgages hereinbefore mentioned.
Failure 24. If Owner is unable to give possession of the demised premises
to Give on the date of the commencement of the term hereof, because the
Possession: 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 wise 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 the 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
223-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 in 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 attornment 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 26. It is mutually agreed by and between Owner and Tenant that
Trial the respective parties hereto shall and they hereby do waive
by Jury: trial by jury in any action, proceeding or counterclaim brought
by either of the parties hereto against the other (except for
personal injury or property damage) on 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 27. This Lease and the obligation of Tenant to pay rent hereunder
to Perform: 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 doing so by reason of strike or labor troubles or 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.
Bills and 28. (See Article 57)
Notices:
Water 29. If Tenant requires, uses or consumes water for any purpose in
Charges: 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 its proportionate share
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 to the extent same is not
included in Taxes pursuant to Article 45 hereof. 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 herinabove 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 fire
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 be structural or non-structural in nature. Tenant shall pay to Owner as
additional rent 37.82% for sprinkler supervisory service. The initial sprinkler
system installed by Owner in the demised premises shall be in good working
condition and adequate to service the demised premises as a separate and
distinct space(s) and alarm service.
Elevators, 31. As long as Tenant is not in default under any of the
Heat, covenants of this lease Owner shall: clean the public halls and
Cleaning: 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 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 reasonable efforts to minimize interference with Tenant's use and occupancy
of the demised premises. Owner shall furnish water for sanitary purposes without
charge.
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<PAGE>
Security: 32. Tenant has deposited with Owner $200,000.00 as security for
(1) 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, 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. 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 said 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.
See Article 59(e)
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 (or 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
construed 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 carry out 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 35. If an excavation shall be made upon land adjacent to the
Excavation-- demised premises, or shall be authorized to be made, Tenant shall
Shoring: 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 of rent.
Rules and 36. (See Article 55)
Regulations:
Glass: 37. Owner shall replace, at the expense of the Tenant, (unless
such damage is caused by negligence or wrongful acts or omissions
on the part of Owner, its employees, agents or contractors, in which case such
repair shall be at Owner's sole cost and expense) 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 38. Tenant, at any time, and from time to time, upon at least 10
Certificate: 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 39. (See Article 51)
Board
Listing:
Successors 40. The covenants, conditions and agreements contained in this
and Assigns: 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.
----------
(1) Space to be filled in or deleted.
(SEE ATTACHED RIDER)
1. 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 WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
Witness for Owner: MACK-CALI REALTY, L.P.
By: Mack-Cali Realty Corporation,
general partner
[CORP. SEAL}
By: /s/ illegible [L.S.]
..................................... ........................................
Vice-President
Witness for Tenant: CREATIVE VISUAL ENTERPRISES, LTD.
........................................
[CORP. SEAL}
By: /s/ W.K. Grollman [L.S.]
..................................... ........................................
President
FEDERAL I.D. # / SOCIAL SECURITY #__________________________
<PAGE>
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
STANDARD FORM OF RIDER TO STANDARD FORM OF LOFT LEASE
Date of Lease: July 9, 1999
Owner: MACK-CALI REALTY L.P.
Tenant: CREATIVE VISUAL ENTERPRISES, LTD.
Building: 12 Skyline Drive, Hawthorne, New York
Rentable Area: approximately 17,850 square feet
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 Fireo 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 con, notion, 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.
<PAGE>
(f) (i) 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.
(ii) The term RENT YEAR shall mean the 12 month period
commencing with the Rent Commencement Date (as defined in paragraph (a) of
Article 43), and ending the day preceding the first anniversary of the Rent
Commencement Date (except that if the Rent Commencement Date shall occur on a
day other than the first day of a calendar month, such period shall commence
with the Rent 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.
(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 Mt. 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 demised 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 7 days notice), or (ii) Tenant (or anyone claiming under or through
Tenant) shall occupy the demised premises. The term shall expire on the last day
of the month ten (10) years and three (3) months 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
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<PAGE>
of the Commencement Date, the parties shall enter into a supplementary written
agreement setting forth the Commencement and Expiration Dates.*
(b) The demised 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. Owner shall be responsible for
obtaining all necessary permits and certificates with respect to Owner's work
and all costs associated with Owner's work (excluding any Tenant extras) shall
be paid by Owner, including the costs of architects, engineers and filing fees.
Owner shall use diligent efforts to complete the demised premises within 90 days
from the date a fully executed counterpart of this lease has been delivered to
Tenant. Tenant and its contractors shall be entitled to access to the demised
premises, prior to the completion of Owner's work, 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 shall
not be deemed to have accepted possession of the demised premises by the
performance of work therein prior to the Commencement Date. Tenant's selection
of contractors must be in compliance with the provisions of Articles 3 and 56
hereof. Owner acknowledges that prior to completion of Owner's work, Tenant will
be constructing its video production studio, performing certain cosmetic work,
and performing other work in the audio studio, control room and other specialty
rooms on the lower level of the demised premises.*
(c) The demised premises shall be deemed completed on the later of
(i) the date on which Owner's work in the demised 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 demised premises) and (ii) the date on which a certificate
of occupancy or other permission to occupy, if required, has been issued. If
completion of the demised 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 its
obligations, if any, under the Work Specifications, or*
(ii) Tenant's failure to plan or execute work to be performed
by Tenant to make the demised premises ready for tenant's occupancy
("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, if any, or changes or substitutions requested by Tenant,
or*
(v) Tenant's failure to submit or approve drawings, plans or
specifications timely, or
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(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 demised 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.
Notwithstanding anything herein to the contrary, in the event Owner shall fail
to cause the demised premises to be deemed complete on or before November 1,
1999, for reasons other than unavoidable delays, the performance of Tenant's
work or Tenant extra work or as set forth in clauses (c)(i) through (vi) above,
then, Tenant, at its sole remedy, shall have no obligation to pay Fixed Annual
Rent for such number of days after the Commencement Date as shall be equal to
the number of days between November 1, 1999, and the date the demised premises
shall be deemed complete.*
(d) The Floor Plan attached hereto may be revised by Owner in order
to comply with laws and requirements of public authorities and requirements of
insurance bodies. If any of such revisions or changes are due to Tenant's video
studio, Tenant shall pay for the cost of 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.*
(e) 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) Payment of the Fixed Annual Rent shall commence on the three (3)
month anniversary of the Commencement Date (the "Rent Commencement Date"). If
such day is other than the first day of a calendar month, the first monthly
installment of Fixed Annual Rent shall be prorated to the end of said calendar
month and shall be payable on such day.*
(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
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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 or if any other monies
owing by Tenant are not paid within 10 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 Chase Manhattan
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 b~
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, Owner shall make available
to Tenant the following number of parking spaces:
eight (8) spaces for executive cars, of which two (2) shall be on the
lower level and six (6) shall be on the upper level. Executive spaces shall be
marked for Tenant's sole use.*
forty-six (46) spaces , on a non-exclusive basis, for employee cars,
which shall be not more than 250 yards from an entrance to the demised premises,
unless otherwise provided for herein.*
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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 of 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. Tenant shall be responsible for repairing damage to 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 provided that
Owner shall use reasonable efforts to minimize interference with Tenant's use
and occupancy of the demised premises and parking areas.*
(e) Neither Tenant nor its invitees shall park automobiles, trucks
or other motor vehicles overnight within the park. Notwithstanding the
foregoing, Tenant may, at its sole risk, park three (3) vehicles overnight in an
area designated by Owner. If said vehicles owned by Tenant or its personnel or
visitors remain in the parking area overnight and the same interferes with the
cleaning or maintenance of said areas (snow or otherwise), any costs or
liabilities incurred by Owner in removing said vehicles to effectuate cleaning
or maintenance, `or any damage resulting to said vehicles or Owner's equipment
or equipment owned by others by reason of the presence of or removal of said
vehicles shall be paid by Tenant to Owner, as additional rent on the rent
payment date next following the submission of a bill therefor. Where
practicable, Owner will endeavor to give Tenant notice to move the 3 vehicles it
is permitted to park overnight prior to cleaning or maintenance of the area in
which such vehicles are parked.*
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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 amounts as are paid by Owner under a payment
in lieu of taxes or equivalent agreement, but in no event more than 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 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 may be, and are in fact, paid in installments) and income,
franchise, transfer, inheritance and capital stock taxes and increases in Taxes
attributable solely to improvements made for or by another tenant 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 January 1, 2000
occurs, multiplied by the assessed valuations of the Real Property for the Tax
Year during which January 1, 2000 occurs. "Tax Year" shall mean the fiscal
period for each Tax. Any and all tax abatements shall be for the benefit of
Owner. Notwithstanding the foregoing, in determining Base Tax, in the event of
any partial assessment(s) of the Building based upon less than full completion
thereof, then the assessment for the Tax Year during which January 1, 2000
occurs (and any other partial assessment) and Taxes shall be projected to what
they would have been had the Building been fully-completed. Upon full
assessment, appropriate adjustments shall be made, if necessary, to any
projections so made and any excess paid based thereon; and any amounts payable
as a result of such adjustments from Owner to Tenant or Tenant to Owner, as the
case may be, shall be paid upon demand therefore.* ,
(c) "Tenant's Proportionate Share" shall mean 37.82%.
(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"). Notwithstanding the foregoing, Tenant
shall have no obligation to make Tax Payments during or with respect to the
first lease year.*
(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
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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
provided, however, that in no event shall Tenant be required to pay any amount
in excess of the amount that would have been payable by Tenant absent such
reduction. 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 Tax ,payment(s), Tenant's Proportionate Share of the refund (but not
more than the Tax Payment that was the subject of the refund). If no Tax Payment
shall thereafter be due, Owner shall pay Tenant's Proportionate Share of such
refund to Tenant.*
(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 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 or
Tenant's initial improvements (including installation of the video production
Studio), 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 in consultation with Tenant and the applicable taxing
authority.*
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(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 Commencement Date 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. Owner shall provide such common area
maintenance including snow removal from parking areas, parking lot maintenance,
exterior lighting, structural and roof repairs.*
(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.
$26,775.00) 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 i of this lease. Notwithstanding the foregoing, Tenant shall have
no obligation to pay any such increase during the first lease year.*
(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 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
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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 ~y 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 reasonable 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 at competitive rates. 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, which
consent shall not be unreasonably withheld or delayed. 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 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.
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(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.
(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 neither increase the monetary
or any other material obligations of Tenant nor decrease the size of the demised
premises, the number of parking spaces provided for in Article 44 , the service
required to be provided by Owner or any other material rights of Tenant.*
(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 except Choyce
Peterson, Inc. and based thereupon Owner shall pay a commission per a separate
agreement. Tenant shall indemnify, defend and hold Owner harmless
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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.
51. SIGNS.
(a) Owner shall, upon Tenant's request, list on the Building's
directory ("Directory"), if any, the name of Tenant and Tenant's subsidiaries,
divisions and affiliates and permitted subtenants conducting business in the
demised premises, any entity resulting from a merger or consolidation with
Tenant or any entity succeeding to the business and assets 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. Notwithstanding the
foregoing, Tenant shall have the right to install, at its sole cost and expense,
a. ground mounted sign on the upper level and the lower level, the size and
location of which shall be determined by Owner in its sole discretion. 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. 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.*
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 (on a pro-rata
basis) 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+
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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 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 canceled, 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 and comparable space .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, (i~) 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. Use of the demised premises for the permitted use set forth in
Article 2 would not, to the best of Owner's knowledge, violate any of the
foregoing. 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
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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 or at the instance of Tenant,
or its invitees except for any negligence or wrongful act on the part of Owner,
its agents, employees or contractors, (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, unless such violation by another tenant would adversely
affect Tenant's rights hereunder, 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.*
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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 with those charged by the
contractor selected by Tenant.. 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, which approval shall not be unreasonably
withheld or delayed. If Owner does not approve or disapprove such plans and
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
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other, pursuant to THIS lease or pursuant to any applicable law or requirement
of 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 "consents"), if Owner shall delay or refuse such consent, 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 60 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.*
(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 (other than with respect to the
initial work to make the demised premises ready for Tenant's occupancy), 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.*
(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.
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(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) 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.
(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 any time, 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.
(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. 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 ]?ark) 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
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inspections, tests and' investigations shall be borne by Tenant provided that
there was reasonable cause to believe that Tenant was not in compliance with the
provisions of this section. 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.
(1) 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 such 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. 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.
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, solely 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:
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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.
Notwithstanding anything contained herein to the- contrary, Owner shall
use reasonable efforts to obtain for Tenant's benefit a non-disturbance
agreement from the holder of any future 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 Tenant.*
(c) Article 11 is amended by adding the following paragraph:
(1) Notwithstanding the foregoing provision of this Article,
Tenant may assign this lease or sublet all of the demised premises, but not less
than all, to one subtenant or assignee, as the case may be, 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 (i) a portion of the demised premises to
one subtenant or (ii) sublet all of the demised premises to not more than two
subtenants, for occupancy and use as permitted by Article 2; provided however,
that Tenant shall first obtain the consent of Owner, it being acknowledged that
at no time shall the demised premises be occupied by more than two occupants
(i.e. Tenant and one subtenant or two subtenants (if Tenant is not occupying any
portion of the demised premises). The consent by Owner to any subletting shall
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<PAGE>
not in any way be considered to relieve Tenant from obtaining the express
consent of Owner to any further subletting.*
Notwithstanding anything herein to the contrary, Tenant shall have the right to
sublet space to up to three (3) persons or entities which provide services to or
for Tenant, for occupancy and use in accordance with the terms of this lease.*
(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 of the demised
premises, then and in such event Owner shall have the option, exercisable by
notice within 20 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.*
If Tenant intends to sublet less than all of the demised
premises as permitted under Section (1) above, 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,
effective as of 6 months from the last day of the month in which Owner shall
have given such notice. 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 including, without limitation,
Tenant's Proportionate Share and additional rent payable under this lease based
on the Rentable Area (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 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
shared equally by Tenant and Owner.*
(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 Owner's notice that it will not exercise its option, 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
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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, which
consent shall not be unreasonably withheld or delayed, 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 two occupants, including Tenant,
shall occupy the demised premises at any one
time (excluding any subsidiary or affiliate of
Tenant and the permitted subtenants providing
services to Tenant.*
(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 of 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 less expenses of such subleasing
(including but not limited to brokerage commissions and costs of improvements).
All sums payable hereunder by Tenant shall be payable to Owner upon receipt
thereof by Tenant. Notwithstanding anything contained herein, this Section (3)
shall be inapplicable during any period that the holder of any mortgage
encumbering the Real Property is Owner hereunder.*
(4) Tenant shall not 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 Mt. Pleasant or the rental rate under this lease for such
but may list the space with a broker at such lower rate. 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.
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(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.
(9) Whether or not Owner shall give its consent to any
proposed sublease, Tenant shall indemnify, 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.*
(d) Article 11 is further amended by adding the following
paragraph:
Anything in this Article or this lease to the contrary notwithstanding, Owner
consents to the assignment of this lease or the subleasing of the demised
premises to any entity controlling, controlled by or under common control with
Tenant, or to any entity into which Tenant may be merged or consolidated, or any
person or entity which is a successor to the business of Tenant, by purchase
thereof or by arrangement effected pursuant to any law or regulatory agency
action
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having or asserting such authority (provided such merger, consolidation or
purchase is for a valid business purpose and not principally for the purpose of
transferring the leasehold estate created hereby), and provided that (i) the
successor to Tenant resulting from the merger, consolidation or purchase is a
bona fide entity, (ii) the successor to Tenant has a net worth, computed in
accordance with generally accepted accounting principles, at least equal to the
greater of the net worth of Tenant (1) immediately prior to such merger,
consolidation or purchase or (2) on the date of this lease, and (iii) proof
satisfactory to Owner of such net worth shall have been delivered to Owner at
least 30 days prior to the effective date of the transaction. No such assignment
of this lease shall be valid or binding upon Owner unless the Tenant shall have
complied with the provisions of this Article and the assignee shall execute,
acknowledge `and deliver to Owner an agreement, in recordable form, whereby the
assignee agrees unconditionally to be bound by and perform all the obligations
of Tenant hereunder then accrued and thereafter accruing and further expressly
agrees that notwithstanding such assignment the provisions of this Article shall
continue to be binding upon such assignee with respect to all future
assignments. The failure or refusal of the assignee to execute, acknowledge or
deliver such an agreement shall not release the assignee from its liability for
the performance of the obligations of Tenant hereunder assumed by acceptance of
the assignment of this lease.*
(e) Article 16 is amended by adding the following paragraph:
Without limiting any of the provisions of Articles 16, 17 or 18,
if pursuant to the Bankruptcy Code of 1978, as the same may be amended, Tenant
is permitted to assign this lease in disregard of the restrictions contained in
Article 11, Tenant agrees that adequate assurance of future performance by the
assignee permitted under such Code shall mean the deposit of cash security with
Owner in an amount equal to the sum of one year's Fixed Annual Rent then
reserved hereunder plus an amount equal to all additional rent payable under
this lease for the calendar year preceding the year in which such assignment is
intended to become effective. Such deposit shall be held by Owner, for the
balance of the term of this lease, as security for the full and faithful
performance of all of the obligations under this lease on the part of Tenant yet
to be performed, in the manner set forth in Article 32 (notwithstanding the
possible prior deletion of Article 32 from this lease). If Tenant receives or is
to receive any valuable consideration for such an assignment of this lease, such
consideration, after deducting therefrom (i) the brokerage commissions, if any,
and other expenses reasonably incurred by Tenant for such assignment and (ii)
any portion of such consideration reasonably designated by the assignee as paid
for the purchase of Tenant's property in the demised premises, shall be the sole
and exclusive property of Owner and shall be paid over to Owner directly by such
assignee.
(f) Article 18 is amended by adding the following paragraph:
In the event of a default by Tenant in its obligations under this lease,
beyond applicable grace periods, if any, and the subsequent termination of this
lease on account of such default, in addition to Owner's other rights and
remedies, there shall be immediately payable by Tenant to Owner, as additional
rent, the amount of all of the following which are incurred, granted or assumed
by Owner in connection with the lease: all rent concessions; free rent; rent
credits, contributions or payments by Owner with respect to work or improvements
performed in the
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demised premises; and/or obligations expenses and liabilities of Tenant assumed
or paid for by Owner in consideration of Tenant's entering into this lease.*
(g) Article 32 is amended by adding the following:
Tenant may deliver to Owner, in lieu of the cash deposit set forth in
this Article an irrevocable negotiable letter of credit issued by and drawn upon
such commercial bank selected by Tenant and acceptable to Owner (at its sole
discretion) and in form and content acceptable to Owner (also at its sole
discretion) (the form attached hereto as Exhibit D shall be deemed acceptable to
Owner) for the account of Owner, in the sum of $200,000.00. Said letter of
credit shall be for a term of not less than 1 year and shall be renewed by
Tenant (without notice from Owner) no later than 30 days prior to its
expiration, and the expiration of each replacement thereof, until Owner shall be
required to return the security to Tenant pursuant to the terms of this lease
but in no event earlier than 90 days after the Expiration Date, and each such
renewed letter of credit shall be delivered to Owner no later than 30 days prior
to the expiration of the letter of credit then held by Owner. If any portion of
the security deposit shall be utilized by Owner in the manner permitted by this
lease, Tenant shall, within 15 days after request by Owner, replenish the
security account by depositing with Owner, in cash or by letter of credit, an
amount equal to that utilized by Owner. Failure of Tenant to comply strictly
with the provisions of this Article shall constitute a material breach of this
lease and Owner shall be entitled to present the letter of credit then held by
it for payment (with notice to Tenant). If the cash security is converted into a
letter of credit, the provisions with respect to letters Of credit shall apply
(with the necessary changes in points of detail) to such letter of credit
deposit. In the event of a bank failure or insolvency affecting the letter of
credit, Tenant shall replace same within 20 days after being requested to do so
by Owner. *
Notwithstanding anything hereinabove to the contrary, provided this
Lease is in full force and effect and Tenant is not in default hereunder and has
paid rent due hereunder within the grace periods of the Lease to date for a
period of 12 consecutive months, upon the fifteen (15) month anniversary of the
Commencement Date or any time thereafter, the amount of the letter of credit
shall be reduced to $150,000.00, and, in addition, provided that Tenant shall
maintain a net worth in excess of $15,000,000.00 for a period of five (5)
consecutive calendar months, the amount of the letter of credit required
hereunder shall be reduced to $75,000.00. Tenant shall deliver to Owner a
consolidated balance sheet of Tenant and its subsidiaries and the related
statements of income and of surplus of Tenant and its subsidiaries, all in
reasonable detail and certified by independent certified public accountants of
recognized national standing and reasonably acceptable to Owner together with a
certification signed by Tenant's chief financial officer that Tenant has
maintained a net worth in excess of $15 million dollars for a period of 5
consecutive months. Upon receipt of a replacement letter of credit in the amount
of $150,000.00 or $75,000.00, as the case may be pursuant to the provisions of
this Article, Owner shall return the original letter of credit to Tenant.*
60. OPTION FOR ADDITIONAL SPACE
A. (i) Subject to the provisions of this Article, Tenant shall
have the option to lease from Owner the balance of the spaces located in the
Building not included within the
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demised premises, ("Additional Space") at the expiration of the existing space
leases for such Additional Space, subject to Owner's right to renew such leases,
to the rights of existing tenants and the requirements of any tenant of the
Building leasing more than 17,850 square feet ("Larger Tenant"). If the term of
this lease shall be in full force and effect on the expiration or termination
date of the existing space lease for the Additional Space, subject to Owner's
right to renew such leases, the rights of existing tenants and the requirements
of any Larger Tenant, 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 Additional Space on an as-is basis, provided Tenant gives Owner
written notice of such election within 15 days after Tenant shall receive
Owner's notice that such Additional Space is available for leasing to Tenant
(which notice will not be given more than one (1) year prior to the date such
Additional Space will be available for occupancy). 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 portion of the Additional Space not leased by
Tenant pursuant to this Section but Tenant shall continue to have such option
for the portion of the Additional Space not yet offered to Tenant. If Tenant
shall elect to lease the first portion of said Additional Space, Tenant shall
retain its option to lease the balance of the Additional Space pursuant to the
terms hereof. If Tenant shall elect to lease said Additional Space: (w) said
Additional Space shall be deemed incorporated within and part of the demised
premises on the date that Owner shall notify Tenant that such Additional Space
is ready for occupancy by Tenant, (x) 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 Additional Space shall be the then
fair market rent for the Additional Space, as determined in the manner set forth
in clause (ii) below, (y) Tenant's Proportionate Share shall be increased by
2.12% for each 1,000 square feet of Rentable Area of the Additional Space leased
by Tenant, 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 Additional Space.*
The parties shall promptly execute an amendment of this lease confirming
Tenant's election to lease said Additional Space and the incorporation of said
Additional Space into the demised premises.
(ii) Owner and Tenant shall use their best efforts, within 30
days after Owner receives Tenant's notice of its election to lease said
Additional Space, ("Negotiation Period") to agree upon the Fixed Annual rent to
be paid by Tenant for said Additional Space. 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 Additional Space.
If the parties are unable to agree on the Fixed Annual Rent for
said Additional Space 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
Additional Space. 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
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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 Additional Space 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 Additional Space.
If the Fixed Annual Rent for said Additional Space has not been
agreed to or established prior to the incorporation of said Additional Space 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 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 Additional Space,
the appraiser or appraisers shall be required to take into account the rentals
at which leases are then being concluded for comparable
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space in the Building and in comparable buildings in the Town of Mt. Pleasant
and the step-ups in the Fixed Annual Rent pursuant to the terms of this Lease,
any current tenant improvement allowances and rent abatements and other
concessions of the market and that Tenant is leasing the Additional Space "as
is". In no event shall the Fixed Annual Rent for the Additional Space, on a per
square foot basis, be less than the Fixed Annual Rent for the demised premises,
on a per square foot basis, as such Fixed Annual Rent shall escalate pursuant to
the terms and provisions of this Lease.*
B. The option granted to Tenant under this Article 60 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 at least
80% of the demised premises (for purposes of such calculation, permitted
subleases to subtenants providing services to Tenant shall be considered
occupied by Tenant) or {ii) the demised premises 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 Additional Space, Tenant shall
sublease all or any part of the demised premises other than permitted subleases
to subtenant s providing services to Tenant.*
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EXHIBIT "A"
Rules and Regulations
1. Tenant shall keep its loading dock areas 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 without Owner's consent, which consent
shall not be unreasonably withheld or delayed except that Tenant may mount
shelves, hang pictures, perform incidental painting, wallpapering and paneling
so long as Tenant removes same and repairs any damage at the expiration or
earlier termination 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. 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 unreasonably loud noise (including, but not limited to, music or the
playing of musical instruments, recordings, radio or television) which, in
Owner's reasonable judgment, might disturb other tenants in the Building or the
Park, if applicable, shall be made or permitted by Tenant except the foregoing
shall not preclude Tenant from using the demised premises for the permitted use.
Nothing shall be done or permitted in the demised premises by Tenant which would
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.*
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9. No equipment which generates noise or vibration (excluding replacement or
upgrade of Tenant's initial equipment) may be installed in the demised premises
except with the prior consent of Owner, which consent shall not be unreasonably
Withheld or delayed and as Owner may reasonably 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, nor any flammable or
combustible objects or materials.
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. Except as provided in the lease, 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, which
consent shall not be unreasonably withheld or delayed with respect to any entity
resulting from a merger or consolidation with Tenant, any entity succeeding to
the business and assets of Tenant, any subsidiary of Tenant, any unincorporated
division of Tenant and any permitted subtenants. 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 reasonable 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 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 recession, 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.
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 or for an occasional meeting or reception.
Tenant
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shall not use the demised premises for medical or health care uses or for the
treatment of any patients in the demised premises. No bicycles, vehicles,
animals, fish or birds of any kind shall be brought into or kept in or about the
demised premises.*
16. Tenant shall keep the interior glass of 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. Tenant shall not operate any propane forklifts in the demised premises.
18. Owner shall not unreasonably withhold or delay from Tenant any approval
provided for in the Rules and Regulations.
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EXHIBIT B
WORK SPECIFICATIONS
Warehouse/Tech area to be generally unfinished open space except as
specifically provided for below:
1. Walls:
A. Walls shall be sheetrock, one coat taped, to underside of
slab above unless otherwise noted on Floor Plan attached.
2. Doors:
A. Exterior Access Doors:
Exterior doors shall be plate glass, framed in
architectural metal, with door closer, 3'0" nominal width X
7'0".
B. Overhead Door (1):
Dock height 48", 8' X 10' opening framed in steel,
three-section metal insulated door mounted on roller track
manually operated, painted. Overhead door to be provided in
accordance with available modular openings in exterior
wall.
C. Interior Connecting Doors (to Tenant offices):
3'0" X 7'0" solid core birch door or similar, stained or
painted 1 3/4" thick set in hollow metal frame.
3. Ceilings:
A. Warehouse Area: Open bar joist ceilings and exposed metal
roofing deck.
B. Office Area:
Ceilings shall be 2' X 4' textured acoustical ceiling
panels laid in a suspended tee system. Grid system may be
continuous or room-contained at Owner's option.
4. Floors:
A. Concrete slab on ground with reinforced 6' x 6' -- #10/#10
wire mesh or fiber mesh reinforcement rated for 300 lbs.
per square foot on the lower level and 125 lbs. per square
foot on the upper level.
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5. Hardware:
A. Passage set on connecting door, lock sets on access doors
including hinges, bucks, and door stops where required.
6. Heating and Air Conditioning:
A. Heating and Air Conditioning where specified on floor plan
attached shall be by a roof mounted gas fired ducted system
separately zoned from office. Any additional
air-conditioning requirements above Owner's standard shall
be at Tenant's cost and expense.
7. Lighting:
A. Lighting shall be by means of 2 lamp 96" fluorescent
fixtures installed on bar joist webs. Initial light
intensity shall be 30 foot candle average.
8. Outlets and Terminals:
A. Owner will provide one electric panel at each electrical
meter location with at least 24 circuit breakers. Owner
will make no other distribution of electricity except to
wire lighting and heating fixtures.
9. Switches:
A. Switches will be provided for one bank of lighting at the
main entrance door and at any connecting door to Tenant's
office premises. All other lighting circuits to be on the
main panel.
10. Telephone:
A. Tenant shall make application directly to the telephone
company or other installer for the installation of
telephone service. Owner does not provide or initiate such
service.
11. Windows and Blinds:
A. Owner to provide all window coverings. Window coverings are
mandatory for all of tenant's windows which are adjacent to
office areas (as distinguished from loading areas).
B. Owner to provide window coverings of the thin slat Levolor
type blinds. All other materials to be subject to Owner's
consent.
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12. Utilities:
A. Owner will install electric service to tenant's premises of
400 AMPS, 277/480V, 3 phase, 4 wire.
B. Gas service will be adequate for serving suspended warm air
furnaces and hot water heater.
C. Owner shall supply water for all ordinary sanitary and
janitorial purposes free of charge, and shall install a
water heater with adequate capacity for normal rest room
use. Tenant will install own water meter if water
consumption exceeds normal sanitary and janitorial needs.
13. Rest Rooms:
As shown on the floor plan attached hereto.
14. Studio Area:
Tenant is responsible for all construction in association with the video studio.
Owner shall deliver this area unfinished with an open ceiling and concrete
floor.
The following standards shall pertain to office improvements:
1. Partitions:
A. Interior Partitions:
Owner shall supply interior partitions. Partitions shall be
of metal stud drywall construction, with sheetrock finish
taped on both sides, painted, provided with vinyl base
burnt umber.
B. Demising Partitions:
Partitions between tenants shall be of sound attenuating
construction, to the underside of the roof, metal stud
drywall construction, two layers of sheetrock both sides
finished, taped and painted on tenant's office side, with
sound insulation batts between studs.
2. Doors:
A. Exterior Main Entrance Doors:
Exterior doors shall be plate glass, framed in
architectural metal, with door closer, 3'0" nominal width X
7'0".
B. Interior Doors:
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(i) Main Passage:
3'0" X 7'0" solid core flush birch doors stained or
painted 1 3/4" thick, set in hollow metal frame.
(ii) Minor Passage and Office Doors:
3'0" X 7'0" solid core flush doors stained birch or
painted 1 3/4" thick set in hollow metal frame.
(iii) Executive Offices:
3'0" X 7'0" solid core birch door stained or painted
1 3/4" thick set in hollow metal frame.
(iv) Closet and Bathroom Doors:
3'0" X 7'0" solid core birch door stained or painted
1 3/4" thick set in hollow metal bucks. ,."
(v) Sliding Doors:
2 or 3 panel as required solid core stained or
painted 1 3/4" thick set in trimmed opening with
metal track.
3. Hardware:
A. Owner shall supply and install all necessary hardware such
as passage sets, hinges, bucks and door stops where
required. Locks will be furnished only on entrance and exit
doors. Private rest rooms shall have privacy locks.
4. Ceilings:
A. Ceilings shall be 2' X 4' textured acoustical ceiling
panels laid in a suspended tee system. Grid system may be
continuous or room-contained at Owner's option.
5. Window Coverings:
A. Owner to provide all window coverings. Window coverings are
mandatory for all of tenant's windows
B. Owner to provide window coverings of the thin slat Levolor
type blinds. All other materials to be subject to Owner's
consent.
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6. Flooring:
All floors shall be covered with Owner's standard grade of
carpet or vinyl, composition tile to be selected from
Owner's standard samples as to type and color.
7. Painting:
A. Painting wherever specified shall consist of two coats in
flat latex colors to be selected from Owner's standard
color chart. No more than one color for each enclosure.
8. Air-Conditioning and Heating:
A. Entire office area shall be heated and air-conditioned by a
roof-mounted combination heating/cooling unit and a duct
system, to maintain, for heating 70 degrees F. inside when
outside temperature of 0 degrees F. with a maximum wind
velocity of 15 MPH and, for cooling inside 80 degrees F.
dry bulb with a 50% relative humidity when 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
glass areas in the air conditioned premises being provided
with venetian blinds, shades or drapes which shall be
closed, depending on the position of the sun. Ceiling
diffusers shall be metal, vaned with manual adjusting
dampers. Return registers shall be of plastic egg crate
type. Number and size of roof-mounted units and zoning
shall be as determined by Owner's engineers.
9. Water:
A. Owner shall supply water for all ordinary sanitary and
janitorial purposes free of charge, and shall install a
water heater with adequate capacity for normal rest room
use.
10. Lighting:
A. Owner shall supply and install 2' x 4' drop-in fluorescent
lighting fixtures (4 lamp, 40w each) with prismatic lenses,
not to exceed one fixture for every 80 square feet of
ceiling area.
11. Convenience Outlets:
A. Owner will install, in interior partitions, up to one
duplex convenience outlet (110 volt) for each 100 square
feet of floor area (approximately 6 outlets per 20 amp
circuit).
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12. Switches:
A. Wall-mounted switches will be provided in any entrance
foyer, all private offices, rest rooms, and for open areas
at major passage doors.
13. Telephone:
A. Tenant shall make application directly to the telephone
company or other installer for the installation of
telephone service. Owner does not provide or initiate such
service.
14. Rest Rooms:
As shown on floor plan attached hereto.
15. Substitutions:
A. No credit will be given for building standard items
omitted.
The Floor Plan attached hereto as Exhibit C and the Work Specifications set
forth above generally describe the work to be performed by Owner under this
lease. Prior to the commencement of the performance of Owner's work, Owner and
Tenant shall each approve the construction drawing to be used by Owner to
perform the work.
Real estate taxes assessed against any item of construction which is a part of
Owner's standard work letter or customary installation are included as part of
the Lease terms set forth herein. If any additional specifications, extras or
non-standard items of improvement give rise to the assessment of additional real
estate taxes, such taxes shall be for the account of Tenant.
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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EXHIBIT D
SAMPLE FORM
IRREVOCABLE LETTER OF CREDIT
STANDBY LETTER OF CREDIT #__________
BENEFICIARY: APPLICANT:
Mack-Call Realty, L.P.
100 Clearbrook Road
Elmsford, New York 10523
Gentlemen:
We hereby open our Irrevocable Letter of Credit # in your favor for the account
of: up to an aggregate amount of US CURRENCY ( US DOLLARS) available by one or
more sight drafts drawn on us accompanied by:
1) Beneficiary's signed statement either A or B as follows:
A) "________________ (Tenant) is in default under the terms of
the lease beyond any grace period provided in the Lease;
said Lease is dated (Date of your original Lease signing)
and covers property in a portion of the building known as
_________________, of approximately ___________ square
feet, located in _____________________ County of
Westchester, State of New York."
OR
B) "________________ Letter of Credit #___________ has not
been extended for an additional one year period from its
expiration date and said Letter of Credit will expire
within forty-five (45) days from the date of our drawing."
AND
2. The original of this Letter of Credit and Amendments, if any.
The sight draft must bear this Clause - "DRAWN UNDER (NAME OF BANK), LETTER OF
CREDIT #________________, DATED ________________.
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THIS LETTER OF CREDIT IS TRANSFERABLE
Transfer of this credit must conform strictly to the terms hereof and to
the conditions of Article 54 of the Uniform Customs and Practice for
Documentary Credits (1983 Revision in force as from October 1, 1984)
fixed by the International Chamber of Commerce .Publication #400. Should
you wish to effect a transfer under this credit, such transfer will be
subject to the return to us of this advice accompanied by our form of
transfer properly signed by you and verified by your bankers that the
signature is valid, and subject to your payment of our customary transfer
charge.
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