New York-New York-1995 Broadway Lease - 1995 CAM LP and Virage Inc.
STANDARD FORM OF OFFICE LEASE
THE REAL ESTATE BOARD OF NEW YORK, INC.
AGREEMENT OF LEASE, made as of this 15th day of November, 1999, between
1995 CAM LP, a New York Partnership, c/o Cammeby's International, 42 Broadway,
New York, New York 10004 party of the first part, hereinafter referred to as
OWNER, and Virage, Inc., California corporation having an office at 1120 6th
Ave. New York, New York party of the second part, hereinafter referred to as
TENANT,
WITNESSETH:
Owner hereby leases to Tenant and Tenant hereby hires from Owner Suite
502 in the Building known as 1995 Broadway, Borough of Manhattan, City of New
York for the term of 5 YEARS (or until such term shall sooner cease and expire
as hereinafter provided) to commence on the 1st day of April, TWO THOUSAND and
to end on the thirty-first day of March, TWO THOUSAND FIVE both dates inclusive.
Effective April 1, 2000, the basic annual rent payable by Tenant under
the lease shall be One Hundred Ninety Seven Thousand Six Hundred and 00/100
Dollars ($197,600) per annum for the period from April 1, 2000 through March 31,
2001; Two Hundred Three Thousand Five Hundred Twenty Eight and 00/100 Dollars
($203,528) per annum for the period from April 1, 2001 through March 31, 2002;
Two Hundred Nine Thousand Six Hundred Thirty Three and 84/100 Dollars
($209,633.84) per annum for the period from April 1, 2002 through March 31,
2003; Two Hundred Fifteen Thousand Nine Hundred Twenty Two and 85/100 Dollars
($215,922.85) per annum for the period from April 1, 2003 through March 31.
2004; Two Hundred Twenty Two Thousand Four Hundred and 53/100 Dollars
($222,400.53) per annum for the period from April 1, 2004 through March 31,
2005, all payable in equal monthly installments due on the first of each month,
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 the Tenant
shall pay the first monthly installments 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:
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1. RENT OCCUPANCY. Tenant shall pay the rent as above and as hereinafter
provided.
2. Tenant shall use and occupy Demised Premises for executive and
administrative offices in connection with Tenant's business and for no other
purpose.
3. TENANT ALTERATIONS. 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 nonstructural and which do not affect utility services or plumbing and
electrical lines, on or to the interior of the Demised Premises by using
contractors or mechanics first approved by Owner. Tenant shall, before making
any alterations, additions, installations or improvements, at its expense,
obtain all permits, approvals and certificates required by any government 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 and Tenant agrees to carry and will cause Tenant's
contractors and subcontractors to carry such workman's compensation, general
liability, personal and property damage insurance as Owner may require. If any
mechanic's lien is filed against the Demised Premises, or the Building of which
the same forms a part, for work claimed to have been done for, or materials
furnished to, Tenant, whether or not done pursuant to this Article, the same
shall be discharged by Tenant within thirty days thereafter, at Tenant's
expense, by filing the bond required by law. All fixtures and all paneling,
partitions, railings and like installations, installed in the premises at any
time, either by Tenant or by Owner in Tenant's behalf, shelf, 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 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 premises by Tenant prior to the expiration of the
Lease, at Tenant's expense, Nothing in this Article shall be construed to give
Owner title to or to prevent Tenant's removal of trade fixtures, moveable office
furniture and equipment, but upon removal of any such from the premises or upon
removal of other installations as may be required by Owner, Tenant shall
immediately and at its expense, repair and restore the premises to the condition
existing prior to installation and repair any damage to the Demised Premises or
the Building due to such removal. All 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 may be removed from the premises by
Owner, at Tenant's expense.
4. MAINTENANCE AND REPAIRS. Tenant shall, throughout the term of this
Lease, take good care of the Demised Premises and the fixtures and appurtenances
therein. Tenant shall be responsible for all damage or injury to the Demised
Premises or any other part of the Building, the systems and equipment thereof,
whether requiring structural or nonstructural repairs caused by or resulting
from carelessness, omission, neglect or improper conduct of Tenant, Tenant's
subtenants, agents, employees, invitees or licenses, or which arise out of any
works labor, service or equipment done for or supplied to Tenant or any
subtenant or arising out of the installation, use or operation of the property
or equipment of Tenant or any subtenant. Tenant shall also repair all damage to
the Building and the Demised Premises caused by the moving Tenant's fixtures,
furniture and equipment. Tenant shall promptly make, at Tenant's expense, all
repairs
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in and to the Demised Premises for which Tenant is responsible, using only the
contractor for the trade or trades in question, selected from a list of at least
two contractors per trade submitted by Owner. Any other repairs in or to the
Building or the facilities and systems thereof for which Tenant is responsible
shall be performed by Owner at the Tenant's expense. Owner shall maintain in
good working order and repair the exterior and the structural portions of the
Building, including the structural portions of its Demised Premises, and the
public portions of the Building interior and the Building plumbing, electric,
heating and ventilating systems (to the extent such systems presently exist)
serving the Demised Premises. Tenant agrees to give prompt notice of any
defective condition in the premises for which Owner may be responsible
hereunder. 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 others making 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. It is
specifically agreed that Tenant shall not be entitled to any setoff or reduction
of rent by reason of any failure of Owner to comply with the covenants of this
or any other Article of this Lease. Tenant agrees that Tenant's sole remedy at
law in such instance will be by way of an action for damages for breach of
contract. The provisions of this Article 4 shall not apply in the case of fire
or other casualty which are dealt within Article 9 hereof.
5. WINDOW CLEANING. Tenant will not clean nor require, permit, suffer or
allow any window in the Demised Premises to be cleaned from the outside in
violation of Section 202 of the Labor Law or any other applicable law or of the
Rules of the Board of Standards and Appeals, or of any other Board or body
having or asserting jurisdiction.
6. REQUIREMENTS OF LAW, FIRE INSURANCE, FLOOR LOADS. Prior to the
commencement of the Lease term, if Tenant is then in possession and at all times
thereafter, Tenant, at Tenant's sole cost and expense, shall promptly comply
with all present and future laws, orders and regulations of all state, federal,
municipal and local governments, departments, commissions and boards and any
direction of any public officer pursuant to law, and all orders, rules and
regulations of the New York Board of Fire Underwriters, 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, (including Tenant's permitted use) or,
with respect to the Building if arising out of Tenant's use or manner of use of
the premises or the Building (including the use permitted under the Lease).
Nothing herein shall require Tenant to make structural repairs or alteration
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 may, after securing
Owner to Owner's satisfaction against all damages, interest, penalties and
expenses, including, but not limited to, reasonable attorney's fees, by cash
deposit or by surety bond in an amount and in a company satisfactory to Owner,
contest and appeal any such laws, ordinances, orders rules, regulations or
requirements provided same is done with all reasonable promptness and provided
such appeal shall not subject Owner to prosecution for a criminal offense or
constitute a default under any Lease or mortgage under which Owner may be
obligated, or cause the Demised Premises or any part thereof to be condemned or
vacated. Tenant shall not do or permit any act or thing to be done in or to the
Demised Premises 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 with respect to the
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Demised Premises or the Building of which the Demised Premises form a part, or
which shall or might subject Owner to any liability or responsibility to any
person or for property damage. 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 or 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 prior to the commencement of
Tenant's occupancy. Tenant shall pay all costs, expenses, fines, penalties, or
damages, which may be imposed upon Owner by reason of Tenant's failure to comply
with the provisions of this Article and if by reason of such failure 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" of rate for the Building or Demised Premises issued by the
New York Fire Insurance Exchange, or other 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.
7. SUBORDINATION. This Lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the real property of which Demised Premises are a part and to all
renewals, modifications, consolidations. replacements and extensions of any such
underlying Leases and mortgages. This clause shall be self-operative and no
further instrument of 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.
8. PROPERTY LOSS, DAMAGE, REIMBURSEMENT INDEMNITY. Owner or its agents
shall not be liable for any damage to property of Tenant or of others entrusted
to employees of the Building, nor for loss of or damage to any property of
Tenant by theft or otherwise, nor for any injury or damage to persons or
property resulting from any cause of whatsoever nature, unless caused by or due
to the negligence of Owner, its agents, servants or employees. Owner or its
agents will not be liable for any such damage caused by other tenants or persons
in, upon or about said Building or caused by operations in construction 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
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obligations hereunder nor 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 subtenant, and any agent,
contractor, employee, invitee or licensee of any subtenant. In case any action
or proceeding is brought against Owner by reason of any such claim, Tenant. upon
written notice from Owner, will, at Tenant's expense, resist or defend such
action or proceeding by counsel approved by Owner in writing, such approval not
to be unreasonably withheld.
9. DESTRUCTION, FIRE AND OTHER CASUALTY.
a. If the Demised Premises or any part thereof shall be damaged
by fire or other casualty, Tenant shall give immediate notice thereof to Owner
and this Lease shall continue in full force and effect except as hereinafter set
forth.
b. If the Demised Premises are partially damaged or rendered
partially unusable by fire or other casualty, the damages thereto shall be
repaired by and at the expense of Owner and the rent, until such repair shall be
substantially completed, shall be apportioned from the day following the
casualty according to the part of the premises which is usable.
c. If the Demised Premises are totally damaged or rendered wholly
unusable by fire or other casualty, then the rent shall be proportionately paid
up to the time of the casualty and thenceforth shall cease until the date when
the premises shall have been repaired and restored by Owner, subject to Owner's
right to elect not to restore the same as hereinafter provided.
d. If the Demised Premises are rendered wholly unusable or
(whether or not the Demised Premises are damaged in whole or in part) if the
Building shall be so damaged that Owner shall decide to demolish it or to
rebuild it, then, in any of such events, Owner may elect to terminate this Lease
by written notice to Tenant, given within 90 days after such fire or casualty,
specifying a date for the expiration of the Lease, which date shall not be more
than 60 days after the giving of such notice, and upon the date specified in
such notice the term of this Lease shall expire as fully and completely as if
such date were the date set forth above for the termination of this Lease and
Tenant shall forthwith quit, surrender and vacate the premises without prejudice
however, to Owner's rights and remedies against Tenant under the Lease
provisions in effect prior to such termination, and any rent owing shall be paid
up to 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 promises as
promptly as reasonably possible, all of Tenant's salvageable inventory and
movable equipment, furniture, and other property. Tenant's
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liability for rent shall resume five (5) days after written notice from Owner
that the premises are substantially ready for Tenant's occupancy.
e. Nothing contained hereinabove shall relieve Tenant from
liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted by law, Owner
and Tenant each hereby releases and waives all right of recovery against the
other of any one claiming through or under each of them by way of subrogation or
otherwise. The foregoing release and waiver shall be in force only if both
releasers' insurance policies contain a clause providing that such a release or
waiver shall not invalidate the insurance. If, and to the extent that, such
waiver can be obtained only by the payment of additional premiums. then the
party benefiting from the waiver shall pay such premium with ten (10) 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.
10. EMINENT DOMAIN. If the whole or any part of the Demised Premises
shall be acquired or condemned by Eminent Domain for any public or quasi public
use or purpose. then and in that event, the 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 and assigns to
Owner, Tenant's entire interest in any such award.
11. ASSIGNMENT, MORTGAGE, ETC. Tenant, for itself, its heirs,
distributees, executors, administrators, legal representatives, successors and
assigns, expressly covenants that it shall not assign, mortgage or encumber this
Agreement, nor underlet or suffer or permit the Demised Premises or any part
thereof to be used by others, without the prior written consent of Owner in each
instance. 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, undertenant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, underletting, occupant or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, undertenant 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.
12. ELECTRIC CURRENT. Rates and conditions in respect to submetering or
rent 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 feeders to the Building or the risers or wiring
installation and Tenant may not use any electrical
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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.
13. ACCESS TO PREMISES. Owner or Owner's agents shall have the right
(but shall not be obligated) to enter the Demised Premises in any emergency at
any time, and, at other reasonable times, to examine the same and to make such
repairs, replacements and improvements as Owner may deem necessary and
reasonably desirable to the Demised Premises or to any other portion of the
Building or which Owner may elect to perform. Tenant shall permit Owner to use
and maintain and replace pipes and conduits in and through the Demised Premises
and to erect new pipes and conduits therein provided they are concealed within
the walls, floor, or ceiling. 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 or 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. 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.
14. VAULT, VAULT SPACE, AREA. No vaults, vault space or area, whether or
not enclosed or covered, nor within the property line of the Building is leased
hereunder. anything contained in or indicated on any sketch, blue print or plan,
or anything contained elsewhere in this Lease to the contrary notwithstanding.
Owner makes no representation as to the location of the property line of the
Building. All vaults and vault space and all such areas not within the property
line of the Building, which Tenant may be permitted to use and/or occupy, is to
be used and/or occupied under a revocable license, and if any such license be
revoked, or if the amount of such space or area be diminished or required by any
federal, state or municipal authority or public utility, Owner shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such revocation, diminution or
requisition be deemed constructive or actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area shall be paid by tenant.
15. OCCUPANCY. 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 is 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
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the condition of the premises and Tenant agrees to accept the same subject to
violations, whether or not of record.
16. BANKRUPTCY.
a. Anything elsewhere in the Lease to the contrary
notwithstanding, this Lease may be canceled by Owner by the sending of a written
notice to Tenant within a reasonable time after the happening of any one or more
of the following events: (1) the commencement of a case in bankruptcy or under
the laws of any state naming Tenant as the debtor; or (2) the making by Tenant
of an assignment or any other arrangement for the benefit of creditors under any
state statute. Neither Tenant nor any person claiming through or under Tenant,
or by reason of any statute or order of court, shall thereafter be entitled to
possession of the premises demised but shall forthwith quit and surrender the
premises. If this Lease shall be assigned in accordance with its terms, the
provisions of this article 16 shall be applicable only to the party then owning
Tenant's Interest in this Lessee.
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 rent 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 become 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 as 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 re-let by the Owner for the unexpired term of said Lease, or any part
thereof, before presentation of proof of such liquidated damages to court
commission or tribunal, the amount of rent reserved upon such re-letting 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.
17. DEFAULT.
a. If Tenant defaults in fulfilling any of the covenants of this
Lease other than the covenants for the payment of rent or additional rent; or if
the Demised Premises becomes vacant or deserted; or if 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 this Lease be rejected under Section 235 of Title 11 of the U. S. Code
(bankruptcy code); or if Tenant shall fail to move into or take possession of
the premises within fifteen (15) days after the commencement of the term of this
Lease, then, in any one or more of such events, upon Owner serving a written
five (5) days notice upon Tenant specifying the nature of said default and upon
the expiration of said five (5) 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
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that the same cannot be completely cured or remedied within said five (5) day
period, and if Tenant shall not have diligently commenced during such default
within such five (5) day period, and shall not thereafter with reasonable
diligence and in good faith, proceed to remedy or cure such default, the 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.
b. 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 reenter 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.
18. REMEDIES OF OWNER AND WAIVER OF REDEMPTION. In case of any default,
re-entry, and/or dispossess by summary waiver proceedings or otherwise, (A) the
rent shall become due thereupon and be paid up to the time of such re-entry,
dispossess and/or expiration, (B) Owner may re-let the premises or any part or
parts thereof, either in the name of Owner or otherwise, for a term or terms,
which may at Owner's option be less than or exceed the period which would
otherwise have constituted the balance of the term of this Lease and may grant
concessions or free rent or charge a higher rental than that in this Lease and
/or (C) Tenant or the legal representatives of Tenant shall also pay Owner as
liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between the rent hereby
reserved and/or covenanted to be paid and the net amount, if any, of the rents
collected on account of the 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, attorneys' fees, brokerage, advertising and for keeping the Demised
Premises in good order or for preparing the same for re-letting. Any such
liquidated damages shall be paid in monthly installments by Tenant on the rent
day specified in this Lease and any suit brought to collect the amount of the
deficiency for any month shall not prejudice in any way the rights of Owner to
collect the deficiency of 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, replacement and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as
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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 in the event of Tenant being evicted or
dispossessed for any cause, or in the event of Owner obtaining possession of
Demised Premises, by reason of the violation by Tenant of any of the covenants
and conditions of this Lease, or otherwise.
19. FEES AND EXPENSES. If Tenant shall default in the observance or
performance of any term or covenant on Tenant's part to be observed or performed
under or by virtue of any of the terms 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 expenditures or incurs any obligations for the payment of money,
including but not limited to attorney's fees, in instituting, prosecuting or
defending any action or proceeding, then Tenant will reimburse Owner for such
sums so paid or obligations incurred with interest and costs. The foregoing
expenses incurred by reason of Tenant's default shall be deemed to be additional
rent hereunder and shall be paid by Tenant to Owner within five (5) days of
rendition of any bill or statement 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.
20. BUILDING ALTERATIONS AND MANAGEMENT. Owner shall have the right at
any time without the same constituting an eviction and without incurring
liability to Tenant therefor to change the arrangement and/or location of public
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets
or other public parts of the Building and to change the name, number or
designation by which the Building may be known. 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 Tenants 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 such controls of the manner of access
to the Building of Tenant's social or business visitors as the Owner may deem
necessary for the security of the Building and its occupants.
21. NO REPRESENTATIONS BY OWNER. Neither Owner nor Owner's agents have
made any representations or promises with respect to the physical condition of
the Building, the land upon which it is erected or the Demised Premises, the
rents, Leases, expenses of operation or any other matter or thing affecting or
related to the premises 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 provisions of this Lease. Tenant has inspected the
Building and the Demised Premises and Tenant is thoroughly acquainted with their
condition and agrees to take the same `as is' and acknowledges that the taking
of possession of the Demised Premises by
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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 understandings
and agreements heretofore made between the parties hereto are merged in this
contract, which alone fully and completely expresses the agreement between Owner
and Tenant and any executory agreement hereafter made shall be ineffective to
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.
22. END OF TERM. Upon the expiration or other termination of the term of
this Lease, Tenant shall quit and surrender to Owner this Demised Premises,
broom clean, in good order and condition, ordinary wear and damages which Tenant
is not required to repair as provided elsewhere in this Lease excepted, and
Tenant shall remove all its property. Tenant's obligation to observe or perform
this covenant shall survive the expiration or other termination of this Lease.
If the last day of the term of this Lease or any renewal thereof, falls on
Sunday, this Lease shall expire at noon on the preceding Saturday unless it be a
legal holiday in which case it shall expire at noon on the preceding business
day.
23. QUIET ENJOYMENT. Owner covenants and agrees with Tenant that upon
Tenant paying the rent and additional rent and observing and performing all the
terms, covenants and conditions, on Tenant's part to be observed and performed,
Tenant may peaceably and quietly enjoy the premises hereby demised, subject,
nevertheless, to the terms and conditions of this Lease including, but not
limited to, Article 30 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
24. FAILURE TO GIVE POSSESSION. If Owner is unable to give possession of
the Demised Premises on the date of the commencement of the term hereof, because
of the holding over or retention of possession of any tenant, undertenant or
occupants or if the Demised Promises 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 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) until after Owner shall have given
Tenant written 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 other
than 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.
25. NO WAIVER. 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
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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. 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.
26. WAIVER OF TRIAL BY JURY. It is mutually agreed by and between Owner
and Tenant that the respective parties hereto shall and they hereby do waive
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 promises, Tenant will not interpose any counterclaim of
whatever nature or description in any such proceeding including a counterclaim
under Article 4.
27. INABILITY TO PERFORM. This Lease and the obligation of Tenant to pay
rent hereunder and perform all of the other covenants and agreements hereunder
on part of Tenant to be performed shall in no wise be affected, impaired or
excused because Owner is unable to fulfill any of its obligations under this
Lease or to supply or is delayed in supplying any service expressly or impliedly
to be supplied or is unable to make, or is delayed in making any repair,
additions, alterations or decorations or is unable to supply or is delayed in
supplying any equipment or fixtures if Owner is prevented or delayed from so
doing by reason of strike or labor troubles or any cause whatsoever 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.
28. BILLS AND NOTICES. Except as otherwise in this Lease provided, a
bill, statement, notice or communication which Owner may desire or be required
to give to Tenant, shall be deemed sufficiently given or rendered if, in
writing, delivered to Tenant personally or sent by registered or certified mail
addressed to Tenant at the Building of which the Demised Premises form a part or
at the last known residence address or business address of Tenant or left at any
of the aforesaid premises addressed to Tenant, and the time of the rendition of
such bill or statement and of the giving of such notice or communication shall
be deemed to be the time when the same is delivered to Tenant, mailed or left at
the premises as herein provided. Any notice by Tenant to Owner must be served by
registered or certified mail addressed to Owner at the address first hereinabove
given or at such other address as Owner shall designate by written notice.
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29. SERVICES PROVIDED BY OWNER. As long as Tenant is not in default
under any of the covenants of this Lease, Owner shall provide: (A) necessary
elevator facilities on business days from 8 A.M. to 6 P.M. and on Saturdays from
8 A.M. to 1 P.M. and have one elevator subject to call at all other times; (B)
heat to the Demised Premises when and as required by Law, on business days from
8 A.M. to 6 P.M. and on Saturdays from 8 A.M. to 1 P.M.; (C) water for ordinary
lavatory purposes, but if Tenant uses or consumes water for any other purposes
or in unusual quantities (of which fact Owner shall be the sole judge), Owner
may install a water meter at Tenant's expense which Tenant shall thereafter
maintain at Tenant's expense in good working order and repair to register such
water consumption and Tenant shall pay for water consumed as shown on said meter
as additional rent as and when bills are rendered: (D) cleaning service for the
Demised Premises on business days at Owner's expense provided that the same are
kept in order by Tenant. If, however, said premises are to be kept clean by
Tenant, it shall be done at Tenant's sole expense, in a manner satisfactory to
Owner and no one other than persons approved by Owner shall be permitted to
enter said premises or the Building of which they are a part for such purpose.
Tenant shall pay Owner the cost of removal of any Tenant's refuse and rubbish
from the Building; (E) if the Demised Premises is serviced by Owner's air
conditioning/cooling and ventilating system, air conditioning/cooling will be
furnished to Tenant from May 15th through September 30th on business days
(Mondays through Fridays, holidays excepted) from 8:00 A.M. to 6:00 P.M. and
ventilation will be furnished on business days during the aforesaid hours except
when air conditioning/cooling is being furnished as aforesaid. If Tenant
requires air conditioning/cooling or ventilation for more extended hours or on
Saturdays, Sundays or on holidays, as defined under Owner's contract with
Operating Engineers Local 94-94A, Owner will furnish the same at Tenant's
expense. RIDER to be added in respect to rates and conditions for such
additional service: (F) Owner reserves the right to stop services of the
heating, elevators, plumbing, air conditioning, power systems or cleaning or
other services, if any, when necessary by reason of accident or for repairs,
alterations, replacements or improvements necessary or desirable in the judgment
of Owner for as long as may be reasonably required by reason thereof. If the
Building of which the Demised Premises are a part supplies manually operated
elevator service, Owner at any time may substitute automatic control elevator
service and upon ten days' written notice to Tenant, proceed with alterations
necessary therefor without in any wise affecting this Lease or the obligation of
Tenant hereunder. The same shall be done with a minimum of inconvenience to
Tenant and Owner shall pursue the alteration with due diligence.
30. CAPTIONS. 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 provisions thereof.
31. DEFINITIONS. The term "office", or "offices", whenever used in this
Lease, shall not be construed to mean premises used as a store or stores, for
the sale or display, at any time, of goods, wares or merchandise, of any kind,
or as a restaurant, shop, booth, bootblack or other stand, barber shop, or for
other similar purposes or for manufacturing. The term "Owner" means a Owner or
lessor, and as used in this Lease means only the Owner, 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 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
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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 has agreed to carry out any and all covenants and
obligations of Tenant, hereunder. The words "re-enter" and "re-entry" as used in
this Lease are not restricted to their technical legal meaning. The term
`business days' as used in this Lease exclude 33. Tenant and Tenant's servants,
employees, agents, visitors, and licensees shall observe faithfully, and comply
strictly with, the Rules and Regulations and such other and further reasonable
Rules and Regulations as Owner or Owner's agents may from time to time adopt.
Notice of any additional Rules or Regulations shall be given in such manner as
Owner may elect. In case Tenant disputes the reasonableness of any additional
Rule or Regulation hereafter made or adopted by Owner or Owner's agents, the
parties hereto agree to submit the question of the reasonableness of such Rule
or Regulation for decision to the New York office of the American Arbitration
Association, whose determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rule or
Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing upon Owner within ten (10) days
after the giving of notice thereof. Nothing in this Lease contained shall be
construed to impose upon Owner any duty or obligation to enforce the Rules and
Regulations or terms, covenants or conditions in any other lease, as against any
other tenant and Owner shall not be liable to tenant for violation of the same
by any other tenant, its servants, employees, agents, visitors or licensees.
32. SECURITY. Tenant has deposited with Owner the sum of Thirty Five
Thousand Three Hundred Seventeen Dollars ($35,317) as security for the faithful
performance and observance by Tenant of the terms, provisions and conditions of
this Lease; it is agreed that in the event Tenant defaults in respect of any of
the terms, provisions and conditions of this Lease, including, but not limited
to, the payment of rent and additional rent. Owner may use, apply 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 expand 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 reletting 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 safe 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
vendee or lessee and Owner shall thereupon be released by Tenant from all
liability for the return of such security; and Tenant agrees to look to the new
Owner solely for the return of said security, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Owner. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security and that neither Owner nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
33. ESTOPPEL CERTIFICATE. Tenant, at any time, and from time to time,
upon at least 10 days' prior notice by Owner, shall execute, acknowledge and
deliver to Owner, and/or to any
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other person, firm or corporation specified by Owner, a statement certifying
that this Lease is unmodified and 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 date 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.
34. SUCCESSORS AND ASSIGNS. The covenants, conditions and agreements
contained in this Lease shall bind and inure to the benefit of Owner and Tenant
and their respective heirs, distributees, executors, administrators, successors,
and except as otherwise provided in this Lease, their assigns.
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed
this Lease as of the day and year first above written.
Witness for Owner: OWNER
1995 CAM LP
/s/ Barry /s/
---------------------------------- ----------------------------------
General Partner
Witness for Tenant: TENANT:
VIRAGE, INC.
/s/ Christen L. Stockdale /s/ Frank Pao
---------------------------------- ----------------------------------
Mr. Frank Pao, V.P. of Business
Affairs & General Manager
35. DELETED.
36. TENANT'S WORK. It is understood and agreed that the Demised Premises
are hereby ]eased to the Tenant and that Tenant accepts and will accept the same
in their `as is' condition In all respects. Tenant covenants and agrees that it
will, at its entire cost and expense, and without any cost or expense to Owner
in any amount, perform such work, make such alterations and furnish and install
such equipment as may be necessary to fix the Demised Premises for the use and
occupancy thereof provided and permitted under Article 2 of this Lease (all of
the aforedescribed work, alterations, installations, etc., to be performed by
Tenant herein shall be referred to as "Tenant's Work"). To the foregoing end,
Tenant will be permitted to perform Tenant's Work subject, however, to the
following terms and conditions:
a. That all such Tenant's Work shall comply with all applicable
provisions of this Lease, including, but not limited to, Articles 3 and 6
hereof, and all applicable governmental rules and regulations and the rules and
regulations of any Board of Fire Underwriters or similar agency having
jurisdiction.
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b. That Tenant shall first submit to Owner for its approval plans
and specifications covering said Tenant's Work. Owner agrees not to unreasonably
withhold or delay its consent to such plans and specifications and to any
subsequent changes therein.
c. That Tenant and its contractors shall employ only labor in the
performance of such Tenant's Work, which shall be compatible with the other
labor in the Building; Tenant agrees to employ only first class workmanlike
contractors and labor as approved by Owner.
d. That Tenant and any contractor or contractors employed by the
Tenant to render services and furnish labor to the Demised Promises, shall be
covered by Worker's Compensation Insurance and a certificate thereof shall be
furnished to the Owner before commencement of any work by any contractor,
subcontractor, their agents, servants or employees.
e. That promptly following the completion of all of said Tenant's
Work, and as soon as reasonably feasible, the Tenant shall obtain and furnish to
Owner all appropriate certifications from all authorities having jurisdiction to
the effect that all such Tenant's Work has been performed and completed in
accordance with the filed plans, if any, and with all laws, rules. regulations
and orders of said authorities having jurisdiction.
f. That Tenant, at its expense, shall procure each and every
permit, license, franchise, or other authorization required for the performance
of such Tenant's Work.
g. That Tenant shall furnish to Owner a list of all Tenant's
contractors, subcontractors, material suppliers and laborers (collectively
referred to as "Tenant's Personnel"). Tenant shall be responsible for Tenant's
Personnel furnishing to Owner: (1) a partial release of lien simultaneously with
each payment by Tenant to Tenant's Personnel for any labor performed or
materials furnished; and (2) a final release of lien immediately upon a final
payment by Tenant to Tenant's Personnel for any labor performed or materials
furnished.
h. In the event a proposed alteration or improvement is estimated
to cost in excess of Five Thousand Dollars ($5,000), Tenant agrees that Tenant
shall either: (1) provide Owner with a completion and/or surety bond covering
such work which runs in favor of Owner (2) issue to Owner a hold harmless and
indemnification agreement relative to such proposed work, or (3) issue the
personal guaranty of Tenant hereunder, which guaranty shall place the entire
burden of payment for such alteration on himself, as well as hold Owner harmless
from and against any and all claims directly arising out of the work to be done
in the Demised Premises.
37. SECURITY. The security deposited pursuant to Article 34 of the Lease
shall be placed in an interest bearing account in the Jamaica Savings Bank, 1995
Broadway, New York, New York, subject to Owner's sole right to change the
depository at any time to any banking organization having a place of business in
the State of New York, interest earned to become additional security. It is also
understood and agreed that 1.0% per annum of the security funds shall be
retained by Owner as an administrative fee.
38. ELECTRICITY.
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a. Owner agrees to supply Tenant with such electric current as
Tenant shall reasonably require (consistent with the existing electrical
capacity contained in the Demised Premises) for Tenant's wiring facilities and
equipment within the Demised Premises as of the commencement of occupancy
thereof by Tenant, and in consideration thereof Tenant agrees that the basic
annual rent reserved in the within Lease shall be increased by the agreed upon
sum of Fourteen Thousand Three Hundred Dollars ($14,300) (the "Base Charge"),
retroactive to the date of possession which Base Charge increase to basic annual
rent shall in no event be subject to reduction but shall be subject to being
increased as hereinafter provided. Owner shall not be liable in any way to
Tenant for any failure or defect in the supply or character of electric energy
furnished to the Demised Premises by reason of any requirement, act or omission
of the public utility serving the Building with electricity or for any other
reason not attributable to Owner. Tenant shall furnish and install all lighting
tubes, lamps, bulbs and ballasts required in Demised Premises, at Tenant's
expense, or shall pay Owner's reasonable charges therefor on demand except with
respect to air conditioning supplied to tenants of this Building through a
centrally located air conditioning system which Owner may have agreed to supply
to Tenant at Owner's sole costs and expense as shall be specified, if
applicable, in a separate Article of this Lease. Tenant shall pay for the cost
of electricity consumed, including central air conditioning by any air
conditioning equipment located in the Demised Premises as well as any other air
conditioning equipment furnishing, in conjunction with the operation of,
conditioned air to the Demised Premises irrespective of whether any such
equipment is located in the Demised Premises or in any other portion of the
Building. The term "equipment" as used herein shall be deemed to include,
without limitation, all components and auxiliary equipment used in connection
with air conditioning equipment servicing the Demised Premises including
Tenant's pro rata share of the cost of the electrical operation of the cooling
tower(s) used in connection therewith if the air conditioning equipment is water
cooled.
b. After Tenant shall have entered into possession of the Demised
Premises, or any portion thereof, Owner, at anytime and from time to time during
the term of this Lease, shall have the right to have surveys made by Owner's
electrical consultant of the electrical consumption within the Demised Premises
and the determination of said electrical consultant shall determine whether the
Base Charge for electricity (as same may have been increased by previous surveys
and determinations made by Owner's electrical consultant) is less than the then
electrical consumption charge determined by Owner's electric consultant to be
properly payable by Tenant as a result of the then current survey determination
made by said electrical consultant and if the Base Charge shall be less than the
electrical consumption charge so determined by Owner's consultant to be
applicable to Tenant's consumption of electricity then, effective as of the date
of occupancy in the case of the first survey and effective as of the date of the
making of the second and subsequent surveys the Base Charge increase to basic
annual rent (as same may have been previously increased pursuant to the
provisions hereof) shall be further increased by an amount equal to the
difference between: (1) the Base Charge increase (plus any previous increases to
the Base Charge increase in accordance with the provisions hereof); and (2) the
then electrical consumption charge determined to be applicable by Owner's
consultant.
Survey made by Owner's electrical consultant shall be based upon the use
of such electric current between the hours of 8 A.M. to 6 P.M. on Mondays
through Fridays, and 8 A-M, to 1 P.M. on Saturdays and such other days and hours
when Tenant uses electricity for lighting and for the operations of the
machinery, appliances and equipment used by Tenant in the Demised
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Premises. In addition, if cleaning services are provided by Owner, such survey
shall include Owner's normal cleaning hours of up to five hours per day for
lighting within the Demised Premises and for electrical equipment normally used
in such cleaning.
The cost of the first survey made by Owner's electrical consultant shall
be borne by Owner. With respect to subsequent surveys, if Owner's consultant
shall determine that there has been an increase in Tenant's use of electrical
current then, in addition to the other requirements and obligations imposed on
Tenant in this Article, Tenant shall pay the fees of the electrical consultant
making such survey. The findings of such electrical consultant shall be binding
and conclusive on Owner and Tenant.
c. Tenant's use of electric energy in the Demised Premises shall
not at any time exceed the capacity of any of the electrical conductors,
machinery and equipment in or otherwise serving the Demised Premises. In order
to insure that such capacity is not exceeded and to avert possible adverse
effect upon the Building electric service, Tenant shall not, without Owner's
prior written consent in each instance, connect any additional fixtures,
machinery, appliances or equipment to the Building electric distribution system
or make any alteration or addition to Tenant's machinery, appliances or
equipment or the electric system of the Demised Premises existing on the
commencement date of the term hereof. Should Owner grant such consent all
additional risers or other equipment required therefor shall be provided by
Owner and the cost thereof shall be paid by Tenant upon Owner's demand. As a
condition to granting such consent, Owner may require Tenant to agree to an
increase in the basic annual rent by an amount which will reflect the value of
the additional service to be furnished by Owner, that is, the potential
additional electrical current to be made available to Tenant based upon the
estimated additional capacity of such additional risers to other equipment. If
Owner and Tenant cannot agree thereon, such amount shall be determined by an
electrical engineer or consultant to be selected by Owner and paid by Tenant.
When the amount of such increase is so determined, the parties shall execute an
agreement supplementary hereto to reflect such increase in the amount of basic
annual rent stated in this Lease effective from the date such additional service
is made available to Tenant; but such increase shall be effective from such date
even if such supplementary agreement is not executed.
d. If the public utility rate schedule for the supply of electric
current to the Building or the utility company fuel adjustment charge or demand
charge shall be increased or decreased at any time after the date hereof, or if
there shall be a change in taxes or if additional taxes shall be imposed on the
sale or furnishing of such electric current, or if there shall be a change in
the space constituting the Demised Premises, or if Tenant's failure to maintain
its machinery and equipment in good order and repair causes greater consumption
of electrical current, or if Tenant uses electricity on days or hours other than
those specified in subparagraph (b) hereof, or if Tenant adds any machinery,
appliances or equipment, the basic annual rent herein reserved shall be
equitably adjusted to reflect any or all of the foregoing as may be applicable.
If Owner and Tenant cannot agree thereon, the amounts of such adjustment(s)
shall be determined, based on standard practices, by any electrical engineer or
consultant, to be selected by Owner and paid by Tenant and the findings of said
electrical engineer or consultant shall be binding and conclusive upon the
parties. When the amounts of such adjustment are so determined, the parties
shall execute an agreement supplementary hereto to reflect such adjustment in
the amount of the of the basic annual rent stated in this Lease effective from
the
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date of the increase or decrease of such usage as determined by such electrical
engineer, or consultant, or as the case may be, from the effective date of such
increase or decrease in the public utility rate schedule; but such adjustment
shall be effective from such date whether or not such a supplementary agreement
is executed.
e. Owner reserves the right to discontinue furnishing electric
current to Tenant in the Demised Premises at any time upon not less than thirty
(30) days' notice to Tenant. If Owner exercises such right of termination, this
Lease shall continue in full force and effect and shall be unaffected thereby,
except only that, from and after the effective date of such termination, Owner
shall not be obligated to furnish electric energy to Tenant and the basic annual
rent payable under this Lease shall be reduced by the amount of any previous
increases thereto an on account of electricity supplied pursuant to the
provisions of this Article. Owner, upon the expiration of the aforesaid notice
to Tenant, may discontinue furnishing the electric current; but, if, for any
reason, the supply of electric current by Owner to the Tenant shall thereafter
continue for any period of time, this shall be without waiver of the right of
Owner thereafter to terminate the same without further notice, and the Tenant
shall continue to pay the basic annual rent as increased pursuant to this
Article as herein provided until such time as the supply of current shall in
fact be discontinued. If Owner so discontinues furnishing electric energy to
Tenant, Tenant shall arrange to obtain electric energy directly from the public
utility company furnishing electric service to the Building. Such electric
energy may be furnished to Tenant by means of the then existing Building system
feeders, risers and writing to the extent that the same are, in Owner's sole
judgment, available, suitable and safe for such purposes. All meters and
additional panel boards, feeders, risers, wiring and other conductors and
equipment which may be required to obtain electric energy directly from such
public utility company shall be installed and maintained by Tenant at its
expense. In addition and notwithstanding anything to the contrary contained in
this Article, Owner at anytime during the term of this Lease on not less than
thirty (30) days' prior written notice to Tenant may require Tenant to purchase
electricity from Owner or from a meter company designated by Owner upon the
terms of such submetering clause that may then be currently used by Owner in the
Building of which the Demised Premises form a part. If Owner shall elect to have
Tenant purchase electricity directly from Owner or Owner's designated meter
company as aforesaid, then Owner at Owner's sole cost and expense (but with
Tenant's reasonable cooperation) shall perform all wiring as may be necessary to
have Tenant's electrical consumption measured by submeters provided by Owner at
Owner's sole cost and expense.
f. If any tax is imposed upon Owner with respect to electrical
energy furnished as a service to Tenant by any federal, state, municipal or
other authority, Tenant covenants and agrees that where permitted by law or
applicable regulations, Tenant's pro rata share of such taxes, shall be
reimbursed by Tenant to Owner within ten (10) days after being billed therefor.
39. OPERATING EXPENSE ESCALATION INDEX. Intentionally omitted.
40. REAL ESTATE TAX ESCALATION. In addition to the basic annual rent
hereinbefore reserved, Tenant covenants and agrees to pay to Owner as additional
rent, sums computed in accordance with the following provisions:
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a. "Taxes" shall mean all real estate taxes, assessments,
government levies, county taxes or any other governmental charge, general or
special, ordinary or extraordinary, unforeseen as well as foreseen of any kind
of nature whatsoever which are or may be assessed or imposed upon the Building
in which the Demised Premises are located, the land underlying same and the
sidewalks, plazas, streets and alleys in front of or adjacent thereto including
any tax, excise or fee measured by or payable with respect to any rent or
mortgage and levied against Owner and/or the land and or Building and/or against
the holder of any mortgage affecting said land or Building under the laws of the
United States, the State of New York, or any political subdivision thereof or by
the City of New York, as a substitute or addition in whole or in part for taxes
presently or hereafter imposed on the land and Building or resulting from or due
to any change in the method of taxation provided that any such substitute tax on
rent shall be considered as if the rent were the only income of Owner but
excluding any income, franchise, corporate, estate, inheritance, succession,
capital stock or transfer tax levied on Owner or the holder of any such
mortgage.
b. "Tax Year" shall mean every twelve month consecutive period
commencing each July 1 during the term of this Lease.
c. "Tenant's Proportionate Share" shall be deemed to be 5.97%.
d. "Basic Tax" shall mean the real estate taxes imposed on the
Building containing the Demised Promises and on the land on which the Building
is located for the fiscal year July 1, 2000 to June 30, 2001. If the Basic Tax
shall subsequently be adjusted, corrected or reduced, whether as the result of
protest, by means of agreement or as the result of legal proceedings, the Basic
Tax for the purpose of computing any additional rent payable pursuant to this
Article shall be the Basic Tax as so adjusted, corrected or reduced. Until the
Basic Tax is so adjusted, corrected, or reduced, if ever, Tenant shall pay
additional rent hereunder based upon unadjusted, uncorrected or unreduced Basic
Tax and upon such adjustment, correction or reduction occurring, and additional
rent paid by Tenant prior to the date of such occurrence shall be recomputed and
Tenant shall pay to Owner any additional rent found due by such recomputation
within ten (10) days after being billed thereof (which bill shall set forth in
reasonable detail the pertinent data causing and comprising such recomputation).
e. If the Taxes for any Tax Year shall be greater than the Basic
Tax, then Tenant shall pay to Owner as additional rent an amount equal to
Tenant's Proportionate Share of the increase over the Basic Tax if the
commencement date of this Lease shall occur during any Tax Year, or if the term
of this Lease shall expire or be terminated during any Tax Year, such amount
shall be prorated. Owner shall bill Tenant for any additional rent payable by
Tenant pursuant to this Article, such bill to be set forth in reasonable detail
the computation of additional rent hereunder which shall be payable by the
Tenant to the Owner in installments in the same manner that such Taxes are
payable by the Owner to the City of New York pursuant to law, commencing with
July 1, 2000.
f. If the Taxes for any Tax Year for which Tenant shall have paid
additional rent pursuant to this Article shall be adjusted, corrected or
reduced, whether as the result of protest of any tentative assessment, or by
means of agreement, or as the result of legal proceedings, the additional rent
becoming due in said Tax Year pursuant to this Article shall be
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determined on the basis of said corrected, adjusted or reduced Taxes. If Tenant
shall have paid any additional rent pursuant to this Article for such Tax Year
prior to any said adjustment, Owner shall credit or refund to Tenant any excess
amount thus paid as reflected by said adjusted Taxes less Tenant's pro rata
share of any cost, expense or fees (including experts' and attorneys' fees)
incurred by Owner in obtaining said tax adjustment. If said tax adjustment shall
occur prior to Tenant's payment of any said Taxes due hereunder additional rent,
Tenant shall pay, as further additional rent, a proportionate share of any cost,
expenses or fees (including experts' and attorneys' fees) incurred by Owner in
obtaining said tax adjustment, in an amount equal to the percentage of the
savings to Tenant that the total expenses shall bear percentage wise to the
total savings in Taxes thereby effected. Any payments, credits or refunds due
hereunder for any period of less than a full Tax Year at the commencement or end
of the term of this Lease, or because of any change in the area of the Demised
Premises shall be equitably prorated to reflect such event.
g. If the fiscal tax year or the method of tax payment shall
hereafter be changed, appropriate adjustment of the foregoing provisions shall
be made accordingly to reflect any such changes.
h. Tenant shall pay to Owner any occupancy tax, rent tax and any
other tax of similar nature or intent now in effect or hereafter enacted, if the
taxing authority shall enact law making same payable by Owner in the first
instance. Such tax shall be paid to Owner as additional rent upon demand.
41. ASSIGNMENT, SUBLETTING, MORTGAGING.
a. Tenant will not by operation of law or otherwise assign,
mortgage or encumber this Lease, nor sublet or permit the Demised Premises or
any part thereof to be used by others, without Owner's prior express written
consent in each instance. The consent by Owner to any assignment or subletting
shall not in any manner be construed to relieve Tenant from obtaining Owner's
express written consent to any other or further assignment or subletting nor
shall any such consent by Owner serve to relieve or release Tenant from its
obligations to fully and faithfully observe and perform all of the terms,
covenants and conditions of this Lease on Tenant's part to be observed and
performed.
b. If Tenant shall desire to assign or to sublet all or any
portion of the Demised Premises, Tenant shall give notice thereof to Owner and
in said notice shall set forth all pertinent business terms of the proposed
assignment or subletting as well as the name and address of the proposed
assignee or sublessee, information as to financial condition of such assignee or
Sublessee and proposed use which assignee or Sublessee desires to make of the
Demised Premises. Said notice shall bear the signature of the proposed sublessee
or assignee attesting to its accuracy. Tenant shall in addition, at Owner's
request, furnish such other further information as Owner may request concerning
such proposed assignment or subletting. After receipt of such notice from
Tenant, Owner shall have the following options to be exercised within sixty (60)
days from the later to occur of: the receipt of Tenant's notice, or if Owner
shall request additional information from Tenant, the receipt of such additional
information when furnished by Tenant:
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(1) In the event Tenant's notice is of Tenant's desire to
make an assignment or a subletting of all or substantially all of the Demised
Premises Owner shall have the option to cancel and terminate this Lease as of
the date proposed by Tenant for such assignment or subletting, which option
shall be exercised within the aforesaid sixty (60) day period and on which date
the term of this Lease shall cease and expire with the same force and effect as
if such date were originally provided herein as the expiration of the term
hereof.
(2) In the event Tenant's notice is of Tenant's desire to
make a subletting for less than all or substantially all of the Demised
Premises, Owner shall have the option, to be exercised within said sixty (60)
day period, of canceling and terminating this Lease only as to such portion of
the Demised Premises to take effect as of the proposed effective date thereof as
stated in Tenant's notice. In the event Owner exercises its option under this
subparagraph (2) the rent and all other charges payable hereunder shall be
equitably adjusted and apportioned.
c. If Owner does not exercise its right of cancellation under
either of the foregoing two options granted under subparagraph (b) hereof within
the time set forth therein, Tenant agrees to then use Glen Equities LTD. as its
exclusive rental agent, having the sole and exclusive right to lease, at agent's
then prevailing commission rates, and to promptly notify such renting agent of
its desire to assign or sublet its Lease, (notwithstanding the foregoing, Tenant
shall have the right to attempt to assign Tenant's interest in this Lease or
sublease all or portions of the Demised Premises to third parties procured by
Tenant or by outside brokers whom Tenant may wish to utilize provided, however
that such assignment shall be subject to the provisions of Article 11; the above
paragraph (b) Owner's options, as well as the following provisions of this
Article and further that in the event of such an assignment or subleasing Tenant
shall obtaining a proposed assignee or subleases, upon terms satisfactory to
Tenant, Tenant shall submit to Owner in writing: (i) the name of the proposed
assignee or subtenant; (ii) the terms and conditions of the proposed assignment
or subletting; (iii) the nature and character of the business and credit of the
proposed assignee or subtenant, and any other information reasonably requested
by the Owner.
Owner shall have the further option, to be exercised within thirty (30)
business days from submission of Tenant's request, to require Tenant to execute
an assignment or sublease to Owner or Owner's designee on the same terms and
conditions in Owner's own name, or the name of Owner's designee, with a right to
sublease to others without Tenant's consent being required for such or any
further sublettings. If Owner shall not exercise its foregoing further option
within the time set forth, its consent to any such proposed assignment or
subletting shall not be unreasonably withheld or unduly delayed, provided,
however, that Owner may withhold consent thereto if in the exercise of its sole
judgment it determines that:
(1) The financial condition and general reputation of the
proposed assignee or subtenant are not consistent with the extent of the
obligation undertaken by the proposed assignment or sublease.
(2) The proposed use of the Demised Premises is not
appropriate for the Building or in keeping with the character of the existing
tenancies or permitted by the Tenant's Lease (but the foregoing shall not be
deemed to enlarge the purposes for which the Demised Premises are permitted to
be used as set forth in this Lease).
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(3) The nature of the occupancy of the proposed assignee
or subtenant will cause an excessive density of employees or traffic or make
excessive demands on the Building's services or facilities or in any other way
will lesson the character of the Building.
(4) The Tenant proposes to assign or sublet to one who at
the time is a tenant or occupant of the premises in the Building of which the
Demised Premises are a part (or to a subsidiary or related entity of such a
tenant or occupant) or to one who at the time is a tenant or occupant of
promises in any other Building then managed by Glen Equities LTD.
(5) The Tenant proposes to assign or sublet all or a
portion of the Demised Premises at a rental rate less than the rental rate Owner
is then asking for other space in the Building. In the event Owner should
withhold or delay its consent to any proposed assignment or sublease, the sole
remedy of Tenant shall be to institute action for specific performance if Tenant
believes that such withholding or delaying of consent was unreasonable and
Tenant hereby expressly waives any claim for monetary damages by reason of such
withholding or delaying of consent by Owner.
d. Further, and as a condition of Owner's consent to any
assignment or subletting:
(1) That Tenant at the time of requesting Owner's consent
shall not be in default in the payment of any rent, additional rent, or other
sums or charges provided to be paid by tenant hereunder and further that Tenant
is not then in material default otherwise under this Lease;
(2) That each assignee of this Lease shall assume in
writing all of the terms, covenants and conditions of this Lease on the part of
the Tenant hereunder to be performed and observed.
(3) That an original or duplicate original of the
instrument of assignment and assumption or of the sublease agreement shall be
delivered to Owner within five (5) days following the making thereof: and
(4) That any instrument of sublease shall specifically
state that each sublease is subject to all of the terms, covenants and
conditions of this Lease. If Tenant shall duly comply with all of the foregoing
then, as aforesaid, Owner shall not unreasonably withhold or unduly delay its
consent to such assignment or subletting, provided further, however, and on
condition that at the time of requesting Owner's consent Tenant shall pay to
Glen Equities LTD). the sum of $250 as a processing fee for each assignment
and/or subletting.
e. It is agreed that if Owner shall not exercise any of its
foregoing options and shall consent to such assignment or subletting, and Tenant
shall thereupon assign this Lease or sublet all or any portion of the Demised
Premises, then and in that event Tenant shall pay to Owner, as additional rent,
(1) in the event of an assignment, the amount of all monies, if any, which the
assignee has agreed to and does pay to Tenant in consideration of the making of
such assignment less however all out-of-pocket costs actually incurred by Tenant
in connection with the making of such assignment, including but not limited to
any brokerage fees, advertising and alteration costs; and (2) in the event of a
subletting the amount, if any, by which the fixed basic
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rent and additional rent payable by the sublessee to Tenant shall exceed the
fixed basic rent plus additional rent allowable to that part of the Demised
Premises affected by such sublease, pursuant to any side agreement as
consideration (partial or otherwise) for Tenant making such subletting. Such
additional rent payments shall be made monthly within five (5) days after
receipt of the same by Tenant or within five (5) days after Tenant is credited
with the same by the assignee or subleasee. At the time of submitting the
proposed assignment or sublease to Owner, Tenant shall certify to Owner in
writing whether or not the assignee or sublessee has agreed to pay any monies to
Tenant in consideration of the making of the assignment or sublease other than
as specified and set forth in such instruments, and if so Tenant shall certify
the amounts and time of payment thereof in reasonable detail.
f. If this Lease shall be assigned, or if the Demised Premises or
any part thereof be sublet or occupied by any person or persons other than
Tenant, Owner may, after default by Tenant, collect rent from the assignee,
subtenant or occupant and apply the net amount collected (which may be treated
by Owner as rent or as use and occupancy) to the rent herein reserved but no
such assignment, subletting, occupancy or collection of rent shall be deemed a
waiver of the covenants in this Article, nor shall it be deemed acceptance of
the assignee, subtenant or occupant as a tenant, or a release of Tenant from the
full performance by Tenant of all the terms, conditions and covenants of this
Lease.
g. Each permitted assignee or transferee shall assume and be
deemed to have assumed this Lease and shall be and remain liable jointly and
covenants, conditions and agreements herein contained on Tenant's part to be
performed for the term of this Lease and any renewals and severally with Tenant
for the payment of the rent, additional rent and adjustment of rent, and for the
due performance of all the terms, modifications hereof. No assignment shall be
binding on Owner unless, as hereinbefore provided, such assignee or Tenant shall
deliver to Owner a duplicate original of the instrument of assignment which
contains a covenant of assumption by the assignee of all the obligations
aforesaid and shall obtain from Owner the aforesaid written consent prior
thereto. Any assignment, sublease or agreement permitting the use and occupancy
of the premises to which Owner shall not have expressly consented in writing
shall be deemed null and void and of no force and effect.
h. DELETED.
i. Notwithstanding anything to the contrary contained in this
Article, Tenant, without being subject to the options afforded Owner herein,
shall have the right to assign this Lease to any parent company, subsidiary,
affiliate or any resulting company into or with which Tenant is merged or
consolidated and to enter into a sublease of all or part of the Demised Premises
to any such parent company, subsidiary or affiliate, subject however to Tenant's
compliance with all of the provisions of subparagraph (d) hereof, upon which
occurring Owner shall give its consent to such assignment or subletting and
provided further that any such assignee or sublessee shall continue to use the
Demised Premises for the purposes set forth in Article 2 only, for the remainder
of the term of this Lease.
j. Notwithstanding anything to the contrary contained in this
Article, Tenant's right to assign this Lease or sublet all or a portion of the
Demised Premises, and the enforceability against Owner of Owner's consent to any
such assignment or subletting, shall be
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subject to Tenant's delivering to Owner, simultaneously with the execution of
any such assignment or sublease, a general release of liens against the Building
executed by any broker(s):
(1) with whom Tenant shall have worked in connection with
any such assignment or sublease or
(2) who are or who claim to be, in whole or in part,
responsible for any such assignment or sublease. Tenant further agrees to
promptly effect and timely pay for all costs of the removal of any broker's
liens which are placed on the Building at any time in connection with any such
assignment or subletting (or promptly make reimbursement to Owner in the event
Owner chooses to directly effect such removal). Tenant's failure to comply with
the provisions contained in this subparagraph (j) shall be deemed to be a
material default under this Lease entitling Owner to all of the remedies
provided for under this Lease for default, including but not limited to Owner's
right to terminate this Lease in this event thereof.
42. INSURANCE. Tenant, throughout the term hereof, shall maintain in
full force and effect for the benefit of and naming Owner, Owner's agents and
Tenant as parties insured therein, comprehensive general public liability
insurance, including without limitation, umbrella liability coverage against
claims for personal injury, death, or damage to property occurring in, on, or
about the Demised Premises, with limits of not less than $1,000,000 for personal
injury or death of one person and $2,000,000 arising out of one occurrence, and
$100,000 for property damage.
The insurance required hereunder shall be issued by an insurance company
licensed to do business in the State of New York prior to any entry by Tenant
into the Demised Premises, and thereafter, not less than ten (10) days prior to
the expiration of any expiring policy. Tenant shall furnish renewals thereof,
together with proof of payment of the premium therefor. If such insurance is
carried under a blanket policy, Tenant may deliver a certificate in lieu of the
original policy. Each policy or renewal shall contain a provision for notice to
Owner at least ten (10) days prior to the cancellation thereof.
Tenant shall indemnify Owner against and save Owner harmless to the
extent of $2,000,000 which may be provided by umbrella policy for any one
occurrence from any liability or claim by or on behalf of any person, firm or
governmental authority for injury, death, or damage arising from the use by
Tenant of the Demised Premises, the plazas, sidewalks, curbs, or vaults adjacent
thereto, the common areas of the Building, or from any work or thing whatsoever
done or omitted to be done by Tenant, its agents, contractors, servants,
employees, licensees, invitees, or customers, and from any breach or default by
Tenant under any of the terms or provisions of this Lease. If any action or
proceeding shall be brought against Owner in connection with any such claims
Tenant shall defend such action or proceeding, at Tenant's expense, by counsel
reasonably satisfactory to Owner. Tenant's insurance carrier's counsel shall be
deemed satisfactory.
43. ADDITIONAL RENT. All costs, charges and expenses which Tenant
assumes, agrees or is obligated to pay pursuant to this Lease shall be deemed
additional rent, and in the event of nonpayment, Owner shall have all of the
rights and remedies with respect thereto as is herein provided for In the case
of nonpayment of rent.
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44. MERCHANDISE, REFUSE, ETC. Tenant shall at no time leave any
merchandise, supplies, materials or refuse in the hallways or other common
portions of the Building or in any other area of the Building other than the
Demised Premises. Tenant covenants that all garbage and refuse shall be kept in
proper containers, securely covered, until removed from the Building so as to
prevent the escape of objectionable fumes and odors and the spread of vermin,
and Tenant further covenants that no refuse and/or garbage shall be permitted to
remain an the sidewalks adjacent to the Building.
45. ATTORNMENT. At the option of the Owner or any successor Owner or the
holder of any mortgage affecting the Demised Premises, Tenant agrees that
neither the cancellation nor termination of any ground or underlying lease to
which this Lease is now or may hereafter become subject or subordinate, nor any
foreclosure of a mortgage affecting said premises, nor the institution of any
suit, action, summary or other proceeding against the Owner herein or any
successor Owner, or any foreclosure proceedings brought by the holder of any
such mortgage, Tenant covenants and agrees to attorn to the Owner or to any
successor to the Owner's interest in the Demised Premises, or to such holder of
such mortgage or to the purchaser of the mortgaged premises in foreclosure.
46. WAIVER OF SUBROGATION. Owner and Tenant, respectively, hereby waive
the right of recovering from each other for any damage or loss occasioned by any
hazards compensated by insurance (excluding liability insurance), regardless of
whether said damage or loss resulted from the negligence of either party, their
employees, or otherwise and said parties do hereby waive the right to subrogate
any insurance carrier or other party to their respective rights of recovery
against each other in any event.
47. MECHANIC'S LIENS. Notwithstanding anything to the contrary contained
in this Lease, Tenant hereunder, its successor and assigns, warrants and
guarantees to the Owner named in the within Lease, its successor and assigns,
that if any mechanic's lien shall be filed against the Building of which Demised
Premises forms a part for work claimed to have been done for, or materials
furnished to Tenant, the same shall be discharged by Tenant, by either payment
or by bond at the sole cost of Tenant within twenty (20) days following the
filing of such mechanic's lien.
48. AIR CONDITIONING PERMITS. Anything contained herein to the contrary
notwithstanding it is expressly agreed that Tenant shall pay the cost of any and
all permits required by any branch or department of the Borough, County, City,
State or Federal Government in connection with any air conditioning presently or
hereinafter installed in the Demised Premises by either Owner or Tenant.
49. LIMITATION OF OWNER'S LIABILITY. If Owner or any successor in
interest of Owner be an individual, joint venture, tenancy in common,
co-partnership, unincorporated association, or other unincorporated aggregate of
individuals, then, anything elsewhere in this Lease to the contrary
notwithstanding, Tenant shall look solely to the estate and property of such
unincorporated Owner in the land and Building and, where expressly so provided
in this Lease to offset against the rents payable under this Lease, for the
satisfaction of Tenant's remedies for the collection of a judgment (or other
judicial process) requiring the payment of money by Owner in the event of any
default by Owner hereunder, and no other property or assets of such
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unincorporated Owner shall be subject to levy, execution or other enforcement
procedure for the satisfaction of Tenant's remedies.
50. ESTOPPEL CERTIFICATE. Tenant agrees, at any time, and from time to
time. upon not less than seven (7) days prior written notice from Owner to
execute, acknowledge and deliver to Owner, a statement in writing addressed to
Owner certifying that this Lease is unmodified and in full force and effect (or,
if there have been modifications, that the same is in full force and effect as
modified, that the same is in full force and effect as modified and stating the
modifications), stating the dates to which rent, additional rent and other
charges have been paid, and stating whether or not to the best knowledge of the
signer of such certificate, there exists any default in the performance of any
covenant, agreement, term, provision or condition contained in this Lease and,
if so, specifying each such default of which the signer may have knowledge, it
being intended that any such statement delivered pursuant hereto may be relied
upon by Owner and by any mortgages or prospective mortgagee of any mortgage
affecting the Building or the Building and the land, and by any Owner under a
ground or underlying Lease affecting the land or Building, or both.
51. LATE PAYMENTS. If Tenant shall fail to pay any installment of rent
or additional rent when first due hereunder (irrespective of any grace period as
may be applicable thereto) and such failure to pay shall continue for more than
ten (10) days after such payment was first due, then interest at the rate of
five (5) cents for each dollar overdue will be charged to the Tenant and shall
accrue from and after the date on which any such sum was first due and payable
hereunder, and such interest shall be deemed to accrue as additional rent
hereunder and shall be paid to Owner upon demand made from time to time, but in
any event no later than the time of payment of the delinquent sum.
52. HOLDOVER. If Tenant shall hold possession of the Demised Premises
after the expiration of the term of this Lease or the prior termination of this
Lease, and the Lease is not renewed or a new Lease is not entered into between
the parties, the parties hereby agree that Tenant's occupancy of the Demised
Premises after the expiration of the term or prior termination of this Lease
shall be under a month-to-month tenancy commencing on the first day after the
expiration of the term or prior termination of this Lease and continuing until
such tenancy shall be terminated by Owner or Tenant and such possession shall
cease, which tenancy shall be upon all of the terms set forth in this Lease
except Tenant shall pay on the first day of each month of the holdover as basic
monthly rent, an amount equal to the higher of (a) an amount equal to three
times the sum of (1) the monthly installment of basic annual rent payable by
Tenant during the last year of the original term of this Lease (i.e., the year
immediately prior to the holdover period) and (2) all monthly installments of
additional rent payable by Tenant pursuant to the term of this Lease that would
have been billable monthly by Owner had the term of the Lease not expired; or
(b) an amount equal to the then market rental value for the Demised Premises as
shall be established by Owner giving notice to Tenant of Owner's good faith
estimate of such market rental value.
Tenant shall occupy the Demised Premises during the holdover period in
its "as is" condition as of the expiration of the term or prior termination of
this Lease and Owner shall not be required to perform any work, furnish any
materials or make any repairs within the Demised Promises during the holdover
period. Nothing contained in this Lease shall be construed as a
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consent by Owner to the possession by Tenant of the Demised Premises beyond the
expiration of the term or prior termination of this Lease, and Owner, upon said
expiration of the term or prior termination of this Lease shall be entitled to
the benefit of all legal remedies that may now be in force or may hereafter be
enacted relating to speedy repossession of the Demised Premises by Owner.
53. NO RESIDENTIAL USE OF DEMISED PREMISES. It is an express condition
of this Lease that the Demised Premises be used for commercial purposes only. In
no event may the Demised Premises be used for residential purposes and Tenant
covenants and agrees to use the Demised Premises only for the commercial
purposes specified in Article 2 hereof.
54. WAIVER OF COUNTERCLAIM. Tenant shall and hereby does waive its right
and agrees not to interpose any counterclaim or offset of whatever nature or
description in any proceeding or action which may be instituted by Owner against
Tenant to recover possession of the Demised Premises, for the collection of
rent, additional rent, other charges, or for damages, or in connection with any
matters or claims whatsoever arising out of or in any or in any way connected
with this Lease, the relationship of Owner and Tenant, or Tenant's use or
occupancy of said premises. This clause, as well as the `waiver of jury trial'
provisions of this Lease, shall survive the termination or any cancellation of
this Lease or the term hereof (nothing, however, contained in this clause shall
preclude Tenant from instituting a separate action against Owner with respect to
any claim that Tenant may have against Owner or from moving to consolidate such
action with any action or proceeding which may have been instituted by Owner, it
being understood. however, that Owner may impose any motion of consolidation).
55. ATTORNEY'S FEES. In case it shall be necessary for Owner to
institute any action or proceeding against Tenant for the nonpayment of rent or
for the violation of any of the covenants or provisions of this lease or for the
recovery of possession of the Demised Premises or should Owner be compelled to
intervene in any action or proceeding wherein Tenant is a party in order to
enforce or protect Owner's interest or rights hereunder, then and in any of such
events, if Owner shall be successful in such action or proceeding, Tenant shall
be obligated to pay to Owner reasonable attorney's fees, costs and disbursements
incurred for the institution and prosecution of any such action, proceeding or
intervention.
56. TENANT'S FAILURE TO TIMELY PAY RENT & ADDITIONAL RENT CONSTITUTES
MATERIAL BREACH OF LEASE OBLIGATIONS. Notwithstanding anything to the contrary
contained in this Lease, Tenant acknowledges and agrees that Tenant has agreed
to pay for the entire stated term of the Lease an aggregate amount equal to the
sum of (A) the annual rental rate herein elsewhere agreed to be paid by Tenant
for each year of the term of the Lease (plus a prorated amount for any period of
less than a full year) - (the "total aggregate basic rent'" plus (B) all
additional rent provided to be paid by Tenant hereunder for the full term of the
Lease.
Tenant further acknowledges and agrees that Tenant's obligations to pay
rent and additional rent under this Lease as and when provided to be paid
hereunder and before the expiration of any applicable grace period provided with
respect thereto is a material obligation. Tenant further acknowledges and agrees
that if Tenant shall fail to pay rent or additional rent as and when due
hereunder and before the expiration of any applicable grace period with respect
thereto so that Owner shall have instituted nonpayment dispossess proceedings
against Tenant on
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account thereof twice at any time during the term of this Lease but a warrant of
eviction was not issued in said proceedings by any reason of the payment by
Tenant of past due rent or additional rent subsequent to the institution of such
proceedings and prior to the issuance of the warrant of eviction therein that on
any subsequent default by Tenant in the payment of rent and/or additional rent
when provided to be paid hereunder and before the expiration of any applicable
grace period with respect thereto, the total aggregate basic rent (less any
payments on account thereof made by Tenant prior to such default continuing
uncured beyond the expiration of any applicable grace period) shall immediately
become due and payable. Upon any such default continuing uncured beyond the
expiration of any applicable grace period occurring subsequent to the
institution by Owner of summary proceedings, Owner may render to Tenant a
statement of the balance of the total aggregate basic rent due and owing as well
as any additional rent due and owing to the date of such statement and if same
shall not be paid promptly by Tenant, i.e., within two (2) days after the
rendering of such statement, Owner in addition to all other rights granted to
Owner hereunder and without limitations may institute a dispossess summary
proceeding based upon such nonpayment by Tenant.
57. SUPERVISION OF TENANT'S INVITEES, EMPLOYEES, ETC. Tenant
acknowledges and agrees that the Building of which the Demised Premises form a
part is a first-class office building. Tenant further acknowledges that as an
inducement to Owner to enter into this Lease with Tenant, Tenant has and does
represent, covenant and agree that Tenant will take all necessary measures and
institute all procedures as may be found necessary to insure that Tenant's
clients, invitees, and personnel do not loiter or congregate in the public areas
of the Building (including but not limited to the corridors. elevators, lobbies,
lavatories, etc.) and that such clients, invitees and personnel will at all
times conduct themselves in a proper business-like manner when passing through
such public areas of the Building for purposes of access and egress to and from
the Demised Premises. Tenant further acknowledges and agrees that the use of the
Demised Premises by Tenant shall be limited to business days only (i.e., Mondays
through Fridays, Federal, State, City and Building Union holidays excepted) from
8 A.M. to 6 P.M. and on Saturdays from 8 A.M. to 1 P.M. and that Owner in
Owner's sole discretion may grant Tenant, upon not less than three (3) business
days prior written request by Tenant, a license to use the Demised Premises on
such days and hours other than as provided for above, agrees that any breach by
Tenant of its foregoing agreements and representations will materially injure
Owner who has intentions to rent space in the Building to major Tenants and who
does not wish to have other present tenants of the Building disturbed, annoyed
or inconvenienced. Accordingly, it is expressly agreed that any violation by
Tenant of its agreements, representations and obligations pursuant to this
article shall constitute a material default by Tenant under the terms of this
Lease entitling Owner to exercise any and all rights granted Owner pursuant to
Articles 17 and 18 of this Lease including without limitation the right to
terminate this Lease and recover possession of the Demised Premises by reason of
Tenant's default.
58. DEMISED PREMISES - "AS IS". It is understood and agreed that the
Demised Premises have been leased to Tenant and Tenant accepts the same in their
`As Is' condition in all respects as of the date Owner delivers possession of
the Demised Premises to Tenant.
59. COMPLIANCE WITH LOCAL LAW NOS. 573,10/80,10/81,16/84 AND 76/85.
Tenant acknowledges and agrees that it shall be Tenant's responsibility and
obligation to comply with
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all requirements and controls imposed by Local Laws, 573, 10/80, 10/81, 16/84
and 76/85 of the City of New York, as well as with any and all other now or
hereafter existing laws. rules and regulations, as the same now or hereafter
exit or hereafter may be amended, of the City of New York, or of any
governmental or quasi governmental agency or department having jurisdiction over
the Building, with respect to the Demised Premises or any portion of the
Building including but not limited to the partitioning, layout, exit signs,
telephone communications, fire conduits, emergency lighting, all systems
mechanical or otherwise, elevators, exterior of the Building, toilets and all
public areas. Tenant further acknowledges and agrees that if Owner shall perform
Tenant's installation or alteration work for Tenant pursuant to any work letter
agreement or pursuant to Tenant's request, Owner's sole responsibility with
respect thereto shall be limited to the workmanlike manner of such installation
or alteration and Tenant shall be responsible for the legality of any such
installation or alteration, i.e., the drawing of plans in compliance with law
and the obtaining of all permits relating thereto, including but not limited to
all necessary approvals and signoffs, and compliance, by work or otherwise, with
all laws, requirements and controls in accordance with this Article. Any
modification(s) of any such installation or alteration made within the Demised
Premises or alteration of the Building required as a result of such installation
or alteration of the Building required as a result of such Installation or
alteration shall be solely the responsibility of Tenant, at Tenant's sole cost
and expense, and Owner shall have no obligation or duty with respect thereto.
The performance of any work, installations and alterations required under the
foregoing Local Laws , 5/73, 10180, 10/81, 16/84 and 76/85 and all other above
described now or hereafter existing laws, rules, regulations. etc., shall be
performed by Tenant in accordance with and subject to all applicable provisions
of this Lease (including but not limited to Articles 3 and 6 hereof) and of law.
With respect to any work to be performed under this article, Owner shall
have the option to perform such work on Tenant's behalf at Tenant's sole cost
and expense subject to Article 63 hereof, and with respect to work to be
performed to any portion of the Building other than the Demised Premises the
actual expenditure on Tenant's behalf shall be deemed to be total cost expended
to complete said work multiplied by Tenant's Proportionate Share defined in the
Real Estate Tax Escalation provision of this Lease (in the event this Lease does
not provide for a Tenant's Proportionate share, in lieu thereof and multiplier
shall be the percentage of the rentable square feet in the Building which are
located in the Demised Premises) subject to Article 63 hereof.
60. CESSATION OF SERVICES AFTER TERMINATION OF LEASE. Tenant expressly
covenants and agrees that if Tenant shall default in the payment of rent or
additional rent hereunder or otherwise materially defaults under this Lease and
Owner shall in accordance with the applicable provisions of this Lease elect to
terminate this Lease on account of any such default, whether such termination be
effected by notices given to Tenant pursuant to Article 17 hereof or whether
Owner elects, in its sole discretion, to terminate the Lease by instituting
appropriate legal action against Tenant (or if Tenant shall vacate the Demised
Premises), that Owner from and after the date of termination of this Lease (or
the date of vacating the Demised Premises by Tenant) shall have the right to
cease furnishing any services, including without limitation, the cessation of
the furnishing of electric current to the Demised Premises, if Owner is required
to furnish electricity pursuant to another provision of this Lease, without
cessation or the furnishing of any such services constituting a partial eviction
and Owner shall be entitled to recover from Tenant reasonable use and occupancy
for any period that Tenant shall holdover in
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the Demised Premises subsequent to the termination of this Lease in an
amount equal to the full basic annual rent and additional rent payable by Tenant
hereunder pursuant to Article 54 hereof, or in the case of Tenant's having
vacated the Demised Premises, Tenant shall be required to pay full rent and
additional rent hereunder as provided in this Lease, irrespective of the fact
that Owner may have ceased furnishing any services to the Demised Premises
vacated by Tenant.
61. OWNER'S OVERHEAD, SUPERVISION & APPROVAL CHARGES. Whenever Owner or
its agent shall install a water meter pursuant to Article 29 thereof, or shall
perform work or furnish services at Tenant's request or on behalf of Tenant
which are not otherwise specifically billable to Tenant as additional rent
pursuant to any other provision or separate agreement or shall perform work
which Tenant should have performed but failed to perform prior to the expiration
of any applicable grace period with respect thereto, or any contractor or vendor
performs construction or furnishes labor, material or services or alteration
work on behalf of Tenant, in addition to all other charges as may be required to
be paid by Tenant as elsewhere provided in this Lease, Tenant shall pay to 1995
CAM LP upon rendition of 1995 CAM LP's bill therefor, an amount equal to
twenty-one (21) percent of the amounts actually expended by Owner and/or Tenant
in connection with the performance of such work or installation of such meter
(representing a charge of ten (10) percent of such cost for 1995 CAM LP's
overhead plus ten (10) percent for supervision).
In addition, if pursuant to this Lease or any work letter or other
agreement entered into between Owner and Tenant, Tenant shall submit to Owner's
agent, 1995 CAM LP. plans or specifications for approval, Tenant shall pay to
1995 CAM LP upon being billed therefor the sum of $500. Said sum shall be
payable irrespective of whether or not approval of such plans and specifications
is granted or such plans and specifications are returned to Tenant with
objections thereto.
If any plan or specification submitted to 1995 CAM LP shall in 1995 CAM
LP's sole opinion, require the expert opinion of an architect, engineer or other
professional service in order for 1995 CAM LP to determine whether or not to
approve or withhold consent thereto, 1995 CAM LP may retain an architect
engineer or other professional service for such purpose and Tenant agrees to pay
to 1995 CAM LP an amount equal to the reasonable fee of such architect, engineer
or other professional service actually paid by 1995 CAM LP for reviewing such
plan or specification.
62. APPLICATION OF SECURITY. If. at any time during the term of this
Lease, Owner (in accordance with the applicable provisions of the Security
Deposit Article of this Lease) shall have applied all or a portion of the
security deposit by Tenant hereunder toward the curing of a default by Tenant
continuing uncured beyond the expiration of any applicable grace period then, it
shall be Tenant's obligation upon the notification by Owner of the application
of all or a portion of the security deposited by Tenant as the case may be, to
promptly deposit with Owner such sum of money as may be necessary to restore the
security deposit to the amount held by Owner prior to such application. Tenant's
failure to restore such security by payment of such sum to Owner within ten (10)
days after receipt of such notice of application by Owner, shall constitute a
material default under this Lease.
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63. BROKER. Tenant covenants and represents that it has dealt with no
broker in connection with the within Lease transaction or the Demised Premises
other than Glen Equities Ltd. and Tenant agrees to hold Owner harmless from any
claims for commission or other fees made by any other broker claiming to have
dealt with Tenant in connection with this Lease transaction or the Demised
Premises. Tenant shall have no obligation to make payment to aforesaid broker(s)
on account of such commission or fees unless Tenant by separate agreement has
undertaken to do so.
64. RIDER PORTIONS PREVAIL. The rider portions of this Lease shall be
read in conjunction with the printed standard form of Lease annexed hereto. If
there should be any inconsistency or ambiguity between the terms of the rider
portions of this Lease and the standard form of Lease, then the rider portions
of this Lease shall prevail.
65. NO OTHER REPRESENTATIONS, CONSTRUCTION, GOVERNING LAW. Tenant
expressly acknowledges and agrees that Owner and its agents have not made and
are not making, and Tenant, in executing and delivering this Lease, is not
relying upon, any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this Lease or in any other
written agreement which may be made between the parties concurrently with the
execution and delivery of this Lease and expressly refers to this Lease.
This Lease shall be governed in all respects by the laws of the State of
New York.
66. ACCORD AND SATISFACTION. No payment by Tenant or receipt by Owner of
a lesser amount than any installment or payment of rent due shall be deemed to
be other than on account of the amount due, and no endorsement or statement on
any check or payment of rent shall be deemed an accord and satisfaction. Owner
may accept such check or payment without prejudice to Owner's right to recover
the balance of such installment or payment of rent, or pursue any other remedies
available to Owner.
67. PROVISIONS SEVERABLE. If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each term
and provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
68. EXECUTION & DELIVERY OF LEASE. Submission by Owner of the within
Lease for review and execution by Tenant shall confer no rights nor impose any
obligations on either party unless and until both Owner and Tenant shall have
executed this Lease and duplicated originals thereof shall have been delivered
to the respective parties hereto.
69. TENANT REIMBURSEMENT. The Tenant agrees to accept the Space in its
"As Is" condition. Any work to be performed shall be at Tenant's sole cost and
expense. All such work shall be done in a first class workmanlike manner and in
compliance with all applicable laws, rules and regulations. In order to assist
the Tenant in effecting certain improvements in conjunction with the Tenant
letting the Space, the Owner within thirty (30) days after its receipt from
Tenant of paid bills for permanent buildings improvements, will reimburse the
Tenant in an
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amount not to exceed Eighteen Thousand Two Hundred dollars ($18,200) in the
aggregate. Cost of improvements, as used herein shall mean Tenant's actual
out-of-pocket expenses for materials and labor.
70. UNCOLLECTIBLE CHECKS. It is hereby understood and agreed by Tenant
that in the event Owner receives a check from Tenant for the payment of basic
annual rent, additional rent and/or any other charge(s) due under this Lease,
and such check is uncollectible by Owner due to insufficient funds in Tenant's
account or for any other reason, Tenant shall pay to 1995 CAM LP a service
charge in the sum of $100, for Owner's expense in processing such uncollectible
check, as additional rent under this Lease together with Tenant's next monthly
rent installment due under this Lease. The provisions of this Article shall not
be deemed to limit Owner from enforcing any other rights Owner may have under
this Lease in the event of Owner's receipt of any such collectible check and
1995 CAM LP's right herein to collect a service charge, as provided above, shall
be in addition to all other rights of Owner contained in 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: OWNER
1995 CAM LP
/s/ Barry /s/
---------------------------------- ----------------------------------
General Partner
Witness for Tenant: TENANT:
VIRAGE, INC.
/s/ Christen L. Stockdale /s/ Frank Pao
---------------------------------- ----------------------------------
Mr. Frank Pao, V.P. of Business
Affairs & General Manager
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GUARANTY
FOR VALUE RECEIVED. and in consideration for, and as an inducement to Owner
making the within Lease with Tenant, the undersigned guarantees to Owner,
Owner's successors and assigns, the full performance and observance of all the
covenants, conditions and agreements, therein provided to be performed and
observed by Tenant, including the "Rules and Regulations" as therein provided,
without requiring any notice of nonpayment, nonperformance or nonobservance, or
proof, or notice, or demand, whereby to charge the undersigned therefor, all of
which the undersigned hereby expressly waives and expressly agrees that the
validity of this agreement and the obligations of the guarantor hereunder shall
in no wise be terminated, affected or impaired by reason of the assertion by
Owner against Tenant of any of the rights or remedies reserved to Owner pursuant
to the provisions of the within Lease. The undersigned further covenants and
agrees that this guaranty shall remain and continue in full force and effect as
to any renewal, modification or extension of this Lease and during any period
when Tenant is occupying the premises as a "statutory tenant". As a further
inducement to Owner to make this Lease and in consideration thereof, Owner and
the undersigned covenant and agree that in any action or proceeding brought by
either Owner or the undersigned against the other on any matters whatsoever
arising out of, under, or by virtue of the terms of this Lease or of this
guaranty that Owner and the undersigned shall and do hereby waive trial by jury.
DATED ______________, 199 ,
----------------------------------
GUARANTOR
----------------------------------
WITNESS
----------------------------------
GUARANTOR'S RESIDENCE
----------------------------------
BUSINESS ADDRESS
----------------------------------
FIRM NAME
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<PAGE> 35
STATE OF NEW YORK, ) ss:
COUNTY OF )
On this ____day of ________, 19__ before me personally came
________________to me known to be the individual described in, and who executed
the foregoing Guaranty and acknowledge to me that he executed the same,
--------------------------------------
NOTARY
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ADDENDUM
This document will act as an addendum to that certain Standard Form of
Office Lease dated November 22, 1999, by and between 1995 CAM LP, a New York
Partnership, c/o GLEN EQUITIES LTD, 551 Madison Avenue, New York, New York,
10022, party on the first part, hereinafter referred to as OWNER, and Virage,
Inc., a California corporation, having an office at 1120 6th Avenue, New York,
New York, party of the second part, hereinafter referred to as TENANT. This
addendum shall be read in conjunction with the Standard Form of Lease and rider
attached hereto. If there should be any inconsistency or ambiguity between the
terms of this addendum and the rider portions of this Lease and/or the Standard
Form of Lease, then the addendum shall control.
The parties hereby covenant and agree as follows:
1. Notwithstanding anything contained herein to the contrary, Owner
shall not unreasonably withhold its consent to any alterations, installations,
additions or improvements which are non-structural and which do not affect
utility services, plumbing or electrical systems in the Building.
2. Notwithstanding anything contained herein to the contrary, if due to
Owner's repairs necessitated by Owner's actions, Tenant is unable to use the
Demised Premises for the operation of Tenant's business therein for a period in
excess of twelve (12) consecutive business days, Tenant shall, in addition to
any rights Tenant may have, be entitled to the abatement of the basic annual
rent and additional rent from and after the expiration of said twelve (12)
consecutive business day period until the time that Tenant shall be able to
resume the conduct of its business in the Demised Premises.
3. The failure of Tenant to seek redress for a violation of, or to
insist upon the strict performance of any covenant or condition of this Lease
shall not prevent a subsequent act which would have originally constituted a
violation from having all the force and effect of any original violation. The
continuing compliance of Tenant with the terms of this Lease with knowledge of
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 Tenant
unless such waiver is signed in writing by Tenant.
4. Tenant shall not pay a separate fee for the removal of Tenant's
refuse and rubbish from the building which rubbish and refuse is of the nature
and kind disposed of in the ordinary course of business provided the same is
non-toxic and non-hazardous. Tenant recognizes and acknowledges that it may be
charged a fee and will promptly pay to Owner any such fee for the disposal of
bulky or excessive rubbish and refuse of the nature and kind disposed of outside
of the ordinary course of business.
5. Notwithstanding anything contained herein to the contrary, after
receipt of notice from Tenant of its intention to lease or sublease all or part
of the Demised Premises, Owner shall have thirty (30) days within which to
exercise its options set forth in Clause 43 of said Lease to provide its consent
or denial to Tenant's proposal to sublet part or all of the Demised Premises.
Through this Addendum, Owner specifically consents to Tenant's subletting of no
more than
<PAGE> 37
Thirty Percent (30%) of the Demised Premises to British Broadcasting
Corporation, pursuant to Clause 43 of the Standard Form of Office Lease.
6. In case it shall be necessary for Tenant to institute any action or
proceeding against Owner for the violation of any of the covenants and
provisions of this lease or for the recovery of possession of the Demised
Premises or should Tenant be compelled to intervene in any action or proceeding
wherein Owner is a party in order to enforce or protect Tenant's rights or
interests hereunder, then and in any of such events, if Tenant shall be
successful in such action or proceeding, Owner shall be obligated to pay
Tenant's reasonable attorney's fees, costs and disbursements incurred for the
institution and prosecution of any such action, proceeding or intervention.
7. Owner and Tenant hereby agree and covenant to act in good faith and
use their best efforts, without Owner incurring monetary expense, to work
jointly to obtain an agreement from British Broadcasting Corporation to
contribute monies to reimburse Tenant for expenses Tenant incurs in undertaking
improvements to the Demised Premises.
Witness for Owner: OWNER
1995 CAM LP
/s/ Barry /s/
---------------------------------- ----------------------------------
General Partner
Witness for Tenant: TENANT:
VIRAGE, INC.
/s/ Christen L. Stockdale /s/ Frank Pao
---------------------------------- ----------------------------------
Mr. Frank Pao, V.P. of Business
Affairs & General Manager
37