Back to top

LEASE AGREEMENT

Lease Agreement

LEASE AGREEMENT | Document Parties: MEVC DRAPER FISHER JURVET | PHOENIX CAPITAL PARTNERS, LLC, You are currently viewing:
This Lease Agreement involves

MEVC DRAPER FISHER JURVET | PHOENIX CAPITAL PARTNERS, LLC,

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: LEASE AGREEMENT
Governing Law: New York     Date: 1/29/2004

50 of the Top 250 law firms use our Products every day

 

 

 

 

 

 

 

                             LEASE AGREEMENT BETWEEN

 

                         PHOENIX CAPITAL PARTNERS, LLC,

 

                                   AS LESSOR,

 

                                       AND

 

                                  MVC CAPITAL,

 

                                   AS LESSEE.

 

 

 

 

                                    Premises:

 

 

                              RIVERVIEW AT PURCHASE

 

                                287 BOWMAN AVENUE

                            PURCHASE, NEW YORK 10577

 

 

 

                                  Prepared By:

 

                               THE LAW OFFICES OF

                             STEVEN C. HIRSCH, ESQ.

                               585 STEWART AVENUE

                                    SUITE 430

                            GARDEN CITY, NEW YORK 11530

                                 (516) 227-1117

 

 

<PAGE>

 

 

                                TABLE OF CONTENTS

 

 

ARTICLE 1   - DEMISE AND TERM OF DEMISE ........................................1

ARTICLE 2   - RENT .............................................................2

ARTICLE 3   - TAXES AND COMMON AREA MAINTENANCE CHARGES ........................3

ARTICLE 4   - USE OF DEMISED PREMISES .........................................10

ARTICLE 5   - POSSESSION AND CONDITION OF DEMISED PREMISES ....................14

ARTICLE 6   - UTILITIES, CLEANING, ETC. .......................................14

ARTICLE 7   - REPAIR AND MAINTENANCE ..........................................20

ARTICLE 8   - LESSOR'S WORK; LESSEE'S WORK ....................................22

ARTICLE 9   - COMPLIANCE WITH LAWS ............................................23

ARTICLE 10 - RIGHTS RESERVED TO LESSOR .......................................23

ARTICLE 11 - INSURANCE .......................................................25

ARTICLE 12 - DAMAGE OR DESTRUCTION ...........................................27

ARTICLE 13 - CURING DEFAULTS; FEES AND EXPENSES ..............................30

ARTICLE 14 - DEFAULT PROVISIONS ..............................................31

ARTICLE 15 - MEASURE OF DAMAGES IN EVENT OF DEFAULT ..........................36

ARTICLE 16 - INDEMNIFICATION .................................................38

ARTICLE 17 - MECHANIC'S AND OTHER LIENS ......................................39

ARTICLE 18 - CONDEMNATION ....................................................40

ARTICLE 19 - COVENANT OF QUIET ENJOYMENT .....................................41

ARTICLE 20 - WAIVER OF COUNTERCLAIM AND JURY TRIAL ...........................41

ARTICLE 21 - NOTICES .........................................................42

ARTICLE 22 - WAIVERS AND SURRENDERS TO BE IN WRITING .........................42

ARTICLE 23 - RIGHTS CUMULATIVE ...............................................43

ARTICLE 24 - CONVEYANCE; LIABILITY OF PARTIES ................................44

ARTICLE 25 - CHANGES AND ALTERATIONS BY LESSEE ...............................45

ARTICLE 26 - CERTIFICATE OF LESSEE ...........................................47

ARTICLE 27 - ASSIGNMENTS, SUBLEASES AND MORTGAGES ............................47

ARTICLE 28 - SUBORDINATION ...................................................51

ARTICLE 29 - SURRENDER; REMOVAL OF LESSEE'S PROPERTY .........................52

ARTICLE 30 - RENEWAL TERM ....................................................53

ARTICLE 31 - THIS ARTICLE HAS BEEN INTENTIONALLY OMITTED .....................55

ARTICLE 32 - BROKERS .........................................................55

ARTICLE 33 - RIGHT OF FIRST OFFER ............................................55

ARTICLE 34 - DEFINITIONS .....................................................57

ARTICLE 35 - MISCELLANEOUS ...................................................62

 

 

LIST OF EXHIBITS TO LEASE

EXHIBIT "A"           THE METES AND BOUNDS DESCRIPTION OF THE PROPERTY

 

EXHIBIT "B"           THE FLOOR PLANS OF DEMISED PREMISES

 

EXHIBIT "C"           BUILDING RULES AND REGULATIONS

 

EXHIBIT "D"           CLEANING SPECIFICATIONS

 

EXHIBIT "E"           This Exhibit Has Been Intentionally Omitted

 

EXHIBIT "F"            This Exhibit Has Been Intentionally Omitted

 

EXHIBIT "G"           STANDARD REQUIREMENTS FOR ALTERATIONS

                     TO BE PERFORMED BY LESSEES

 

 

<PAGE>

 

 

         AGREEMENT OF LEASE, dated as of December , 2003, between PHOENIX

CAPITAL PARTNERS, LLC, having an office at 287 Bowman Avenue, Purchase, New York

10577 (hereinafter referred to as "Lessor") and MVC CAPITAL, having an office at

287 Bowman Avenue, Purchase, New York 10577 (hereinafter referred to as

"Lessee");

 

                                W I T N E S S E T H

 

         WHEREAS, Lessor, is the owner in fee simple absolute of the land and

all the improvements erected thereon located in Purchase in the Town of

Harrison, County of Westchester, State of New York and more particularly

described in EXHIBIT "A" annexed hereto (the "Property");

 

         WHEREAS, Lessor desires to lease to Lessee, and Lessee desires to hire

from Lessor, a portion of the Third (3rd) Floor in the building known as

RiverView at Purchase and located at 287 Bowman Avenue, Purchase, New York 10577

on the Property and which the parties hereto agree shall be deemed to consist of

One Thousand, Six Hundred and Fifty (1,650) rentable square feet (hereinafter

referred to as the "Demised Premises") and as more particularly described on the

floor plans annexed hereto as EXHIBIT "B" and made a part hereof; and

 

         NOW, THEREFORE, in consideration of the foregoing and of the covenants,

conditions and agreements hereinafter set forth, Lessor and Lessee agree as

follows:

 

                      ARTICLE 1 - DEMISE AND TERM OF DEMISE

 

         SECTION 1.01.A. Lessor, in consideration of the rents hereinafter

reserved and of the terms, covenants, conditions and agreements herein contained

on the part of Lessee to be paid, observed and fulfilled, does hereby demise and

lease the Demised Premises to Lessee and Lessee hereby hires the same from

Lessor; subject to all present and future zoning ordinances, laws, regulations,

requirements and orders, including building restrictions and regulations, and

all other present and future ordinances, laws, regulations, requirements and

orders of all departments, boards, bureaus, commission and bodies, of any

municipal, county, state or federal governments now or hereafter having or

acquiring jurisdiction of the Demised Premises; Taxes (as hereinafter defined)

not yet due and payable; all other present and future covenants, easements and

restrictions affecting the Property and the Demised Premises and the revocable

nature of any restriction, easement, agreement, ordinance or right affecting the

Property and the Demised Premises.

 

 

<PAGE>

 

 

         B. The Demised Premises are demised and leased unto Lessee, for a term

("Term") commencing on the Commencement Date (as hereinafter defined) and

expiring at noon on November 30, 2005 (the "Expiration Date"), unless the same

shall sooner terminate or be extended pursuant to any of the terms, covenants,

conditions or agreements of this Lease or pursuant to law. As used herein, the

"Commencement Date" shall mean December 8, 2003, PROVIDED, HOWEVER, that the

Commencement Date shall not occur unless and until Lessor delivers to Lessee the

Demised Premises in vacant, broom clean condition and free of tenancies.

 

                                ARTICLE 2 - RENT

 

         SECTION 2.01. Lessee shall pay to Lessor, or to such other person as

Lessor may from time to time designate, at the address specified in or pursuant

to Section 2.04, during the Term, fixed rent ("Fixed Rent"), over and above the

other and additional payments to be made by Lessee as hereinafter provided, as

follows:

 

                  A. During and in respect of the period from Commencement Date

         through November 30, 2004 (both dates inclusive), an amount equal to

         Fifty-Five Thousand, Two Hundred and Seventy-Five and 00/100

         ($55,275.00) Dollars (inclusive of electric) payable in equal monthly

         installments of Four Thousand, Six Hundred and Six and 25/100

         ($4,606.25) Dollars (inclusive of electric); and

 

                   B. During and in respect of the period from December 1, 2004

         through November 30, 2005 (both dates inclusive), an amount equal to

         Fifty-Six Thousand, Eight Hundred and Nine and 56/100 ($56,809.56)

         Dollars (inclusive of electric) payable in equal monthly installments

         of Four Thousand, Seven Hundred and Thirty-Four and 13/100 ($4,734.13)

         Dollars (inclusive of electric).

 

         SECTION 2.02.A. Fixed Rent shall be paid in equal monthly installments

on the first day of each and every month during the Term without any set off or

deduction whatsoever; PROVIDED HOWEVER, that if Fixed Rent shall be payable for

any period prior to the first day of the first full month during the Term, then

such Fixed Rent shall be paid in a proportionate amount for the number of days

in such period and paid as and when the first equal monthly installment is

payable as aforesaid. Notwithstanding the foregoing, Lessee shall pay the first

monthly installment of Fixed Rent upon execution of this Lease.

 

                                       2

 

<PAGE>

 

 

         SECTION 2.03. If Lessee shall fail to pay as and when due under this

Lease any Additional Rent (as hereinafter defined), and such failure shall not

be remedied within the grace period (if any) applicable thereto under this

Lease, Lessor shall have all of the rights and remedies provided in this Lease

as in the case of default in the payment of the Fixed Rent, including any rights

available to Lessor at law or in equity and shall be entitled interest on any

unpaid Fixed Rent and Additional Rent at the maximum legal rate from and after

the end of the grace period following notice of the date such payments were due

until the date payment is made. Except as otherwise specifically provided in

this Lease, the Fixed Rent and Additional Rent shall be paid without notice,

demand, credit, abatement, deduction or setoff of any kind whatsoever. The Fixed

Rent and Additional Rent are sometimes referred to collectively herein as

"Rent."

 

         SECTION 2.04. Lessee shall pay the Rent to Lessor in lawful money of

the United States of America which shall be legal tender for all debts, public

and private, at the time of payment, at the office of Lessor set forth above, or

to such other person or persons and/or at such other place or places as Lessor

may designate from time to time by notice to Lessee. Such payments may be by

check of Lessee, subject to collection, payable to the order of Lessor or to

such other person or persons as Lessor may designate from time to time by notice

to Lessee; any such payment shall be deemed made upon receipt thereof, subject

to collection.

 

         SECTION 2.05. Any obligation of Lessee for payment of Rent which shall

have accrued with respect to any period during or prior to the Term shall

survive the expiration or termination of this Lease for a period of Two (2)

years.

 

              ARTICLE 3 - TAXES AND COMMON AREA MAINTENANCE CHARGES

 

         SECTION 3.01.   As used herein:

 

         A. "Lessor's Statement" shall mean an instrument containing a

computation of any Additional Rent payable by Lessee to Lessor pursuant to this

Article.

 

         B. "Common Area Maintenance Charges" shall mean all actual costs and

expenses of whatever kind or nature, whether or not herein specifically

mentioned or now contemplated, which are incurred by Lessor or Lessor's agents

in connection with the use, operation, repair or maintenance of the Building

and/or Property, including, but not limited to the following: (1) premiums and

other charges for insurance which Lessor is required or permitted to maintain

hereunder including, but not limited to, general comprehensive liability

insurance covering bodily injury, personal injury (including death), property

 

                                        3

 

<PAGE>

 

 

damage, public liability, non-hired automobile insurance, sign insurance, plate

glass insurance and any other insurance incurred by Lessor for the Building

and/or Property; (2) costs and expenses of performing repairs in or to the

Building and/or Property and the sidewalks and curbs adjacent thereto; (3) costs

and expenses of performing repairs or resurfacing of the parking lots and any

adjacent facilities; (4) costs and expenses of landscaping and maintaining the

grounds of the Building and/or Property; (5) costs and expenses of snow and ice

removal and/or treatment; (6) costs and expense of rubbish, garbage and other

refuse removal; (7) fees and disbursements payable to any person to furnish

management, repair or other services regarding the Building and/or Property,

except that, in the case of any such person who is affiliated with Lessor, such

fees shall not exceed that which is customary or reasonable in the industry for

similar buildings in Westchester County; (8) cost and expenses of performing

repairs to all structural walls, roofs, and plate glass doors and windows, if

any, which are not expressly made part of the Building, Property or the Demised

Premises; (9) cost of refurbishing the common areas and modernizing and

replacing equipment servicing the common areas, including but not limited to

regular painting of non-tenanted areas at the Building and/or Property; (10)

cost and expense of maintenance and repairs of the structural elements of the

Building and/or Property; (11) costs and expenses of performing repairs and

maintenance of lighting and lighting fixtures; (12) repair and maintenance of

all or any part of the sprinkler system installed in any part of the Building

and/or Property; (13) cost of utilities, such as electricity, water and sewer;

depreciation of the capital cost of all items required to be capitalized

pursuant to this Lease, including but not limited to, machinery, equipment

(including on-site sewage, lighting and power facilities) and vehicles used in

connection with the operation and maintenance of the common areas as determined

by Lessor for federal income tax purposes but utilizing the straight-line method

of computing depreciation and the normal useful lives; (14) costs and expenses

of performing repairs and maintenance of all heating, ventilating and air

conditioning equipment installed in any part of the Building, including but not

limited to that portion contained within the Demised Premises; (15) cost and

expense of performing repairs and maintenance of utility lines, sanitary and

storm sewer lines and culverts and drainage facilities; (16) costs and expenses

of providing and maintaining security, if any; (17) costs and expenses of

providing and maintaining traffic control, if any; (18) labor costs and expenses

of part and/or full time personnel employed at the Property in connection with

the operation of the Building at or below the grade of building manager; (19)

costs and expenses of providing holiday and other decorations to the Building

and/or Property; (20) costs and expenses of performing repairs and maintenance

of all elevators in any part of the Building and/or Property; (21) cost and

expense of providing and maintaining porter and matron service at the Building

and/or Property, if any; (22) cost and expense of providing and performing

 

                                       4

 

<PAGE>

 

 

cleaning and related services; (23) cost and expense of providing window

washing; (24) cost and expense of all supplies; (25) wages, salaries, disability

benefits, pensions, hospitalization, retirement plans and group insurance

respecting service and maintenance employees of Lessor; (26) cost and expense of

all uniforms and working clothes for such employees and the cleaning thereof;

(27) cost and expense imposed on Lessor pursuant to law or to any collective

bargaining agreement with respect to such employees; (28) cost and expense of

providing and maintaining worker's compensation insurance, payroll, social

security, unemployment and other taxes now in effect or hereinafter imposed with

respect to such employees; (29) cost of all sales, utility and use taxes and

other taxes of like import now in effect or hereinafter imposed; (30) cost and

expense of all maintenance and service contracts for the Building and/or

Property; (31) cost of all other normal operating expenses of repair, operation,

and maintenance of the Building and/or Property; (32) cost and expense of

providing and maintaining loading dock and mail personal, if any; (33) cost and

expense of all professional and consulting fees, including legal and audit fees

and all costs and disbursements incurred in connection therewith; (34) such cost

and expenses shall be subject to Lessor's overhead and administrative cost of

[FIVE (5%)] percent; and (35) the cost of any capital equipment or capital

expenditures only to the extent specifically provided for in Section 3.01.C.

hereof;

 

PROVIDED, HOWEVER, that the following items shall be excluded from Common Area

Maintenance Charges: (1) leasing commissions; (2) cost of repairs or

replacements incurred by reason of fire or other casualty (to the extent the

same is or would have been covered by insurance required to be maintained by

Lessor herein), or caused by the exercise of the right of eminent domain (to the

extent same is covered by any condemnation award) less any cost incurred by

Lessor in obtaining such insurance proceeds or condemnation award; (3) costs

incurred in performing work or furnishing services to or for individual tenants

(including Lessee) at such tenant's expense; (4) debt service on any mortgages

now or hereafter encumbering the Building and/or Property; (5) the cost of

performing or furnishing services for tenants other than Lessee at Lessor's

expense, to the extent that such work or service Lessor is obligated to furnish

to or for Lessee at Lessor's expense and (6) the cost of attorneys' fees

incurred in connection with negotiating and drafting leases with other tenants,

or in connection with disputes with other tenants; (7) costs incurred in the

sale or refinancing of the Building and/or Property; (8) interest or penalties

due to Lessor's violations of law; (9) advertising and promotional expenses;

(10) depreciation; (11) leasehold improvements made for other tenants; and (12)

Taxes.

 

          C.1. If Lessor shall purchase any item of capital equipment or make any

capital expenditure intended to result in savings or reductions in the Common

 

                                       5

 

<PAGE>

 

 

Area Maintenance Charges and which Lessor reasonably believes shall provide

Lessee with the benefit of a savings or reduction in such common area

maintenance charges based upon the advice of Lessor's consultants, then the

costs for same shall be included in the Common Area Maintenance Charges, to the

extent hereinafter set forth. Lessor shall deliver to Lessee, promptly following

Lessee's request, a copy of any concluded studies conducted by Lessor which show

anticipated savings or reductions in such Common Area Maintenance Charges as a

result of any planned capital expenditure or purchase of capital equipment. The

costs of capital equipment or capital expenditures are so to be included in the

Common Area Maintenance Charges in which the costs are incurred and in any

subsequent years, on a straight-line basis, to the extent that such items are

amortized over such period of time as reasonably can be estimated at the time in

which such savings or reductions in such Common Area Maintenance Charges are

expected to equal Lessor's costs for such capital equipment or capital

expenditure, with an interest factor equal to two percent (2%) above the

interest rate payable on United States Treasury securities having a maturity

comparable to the period of amortization at the time Lessor incurred said costs.

If Lessor shall lease any such item of capital equipment designed to result in

savings or reductions in any common area maintenance charges, then the rentals

and other costs paid pursuant to such leasing shall be included in such common

area maintenance charges for the year in which they were incurred.

 

         2. If Lessor shall purchase any item of capital equipment or make any

other capital expenditure in order to comply with Legal Requirements, Insurance

Requirements or Environmental Laws (as those terms are hereinafter defined) or

in order to benefit or increase the safety and security of the Building or

Property tenants and/or invitees, then the costs for same shall be included in

common area maintenance charges for the year in which the costs are incurred and

subsequent years, on a straight-line basis, amortized over the useful life of

such items, with an interest factor equal to two percent (2%) above the interest

rate payable on United States Treasury securities having a maturity comparable

to the useful life of such items at the time Lessor incurred said costs. If

Lessor shall lease any such item of capital equipment to comply with Legal

Requirements, Insurance Requirements, Environmental Laws or to increase safety

and security then the rentals and other costs paid pursuant to such leasing

shall be included in common area maintenance charges for the year in which they

were incurred.

 

         D. Lessor shall have the absolute right, at all times during the Term

and any Renewal Term, (as hereinafter defined) to increase, reduce, alter or

otherwise modify the way in which it uses, operates, repairs, or maintains the

Building and/or the Property and the cost thereof. Nothing contained herein

shall require Lessor to incur or provide any particular service or charge in

 

                                        6

 

<PAGE>

 

 

connection with its use, operation, repair or maintenance of the Building and/or

Property, it being agreed and understood that the items described in Section

3.01.B. are by way of illustration only and shall not obligate Lessor thereto,

except that Lessor shall maintain the Building and Property in such condition as

is otherwise provided for herein.

 

         E. The term "Taxes" shall mean all such taxes, assessments, use and

occupancy taxes in respect of this Lease and any subleases made hereunder, water

and sewer charges, rates and rents, water and other meter charges and all such

other charges, taxes, levies and sums of every kind or nature whatsoever,

general and special, extraordinary as well as ordinary, whether or not now

within the contemplation of the parties, as shall or may during or in respect of

the Term (or any period prior to the Term for which Fixed Rent is payable) be

assessed, levied, charged or imposed upon or become a lien on the Property,

Building, or Demised Premises, or any part thereof, or anything appurtenant

thereto, or the sidewalks, streets or roadways in front of, adjacent to or

appurtenant to the Property, Building or Demised Premises (and which have a

basis related in any way to the Property, Building, or Demised Premises and/or

the use or manner of use thereof), or which, if imposed on Lessee or in respect

of the Property, Building or Demised Premises and if not paid by Lessee, would

be collectible from Lessor, or which have been so assessed, levied, charged or

imposed prior to the Term (but, in the last-mentioned case, only with respect to

a period falling within the Term); PROVIDED, HOWEVER, that, except if and to the

extent otherwise provided in the succeeding sentence, "Taxes" shall not mean

federal, state or local income taxes, franchise, excise, gift, transfer, capital

stock, estate, succession or inheritance taxes or penalties or interest for late

payment of any tax in respect of which Lessee shall have duly made payment of

Additional Rent as herein provided, or any increase in Taxes directly

attributable to Lessor's Initial Building Renovation. If, at any time during the

Term, the methods of taxation prevailing at the commencement of the Term shall

be altered so that, in lieu of or as a substitution in whole or in part for the

taxes, assessments, levies, impositions or charges now or hereafter levied,

assessed or imposed on real estate and the improvements thereon, shall be

levied, assessed or imposed any tax or other charge on or in respect of the

Property, Building and/or Demised Premises or the rents, income or gross

receipts of Lessor therefrom (including any county, town, municipal, state or

federal levy), then such tax or charge shall be deemed a Tax, but only to the

extent that such Tax would be payable if the Property, Building or Demised

Premises, or the rent, income or gross receipts received therefrom, were the

only property of Lessor subject to such Tax, and Lessee shall pay and discharge

the same as herein provided in respect of the payment of Taxes.

 

                                       7

 

<PAGE>

 

 

         F. The term "School Tax Base" shall mean the amount of Taxes as

hereinabove defined, imposed, levied, assessed and/or collected on the Property,

for the second half of the 2003/2004 School Tax and the first half of the

2004/2005 School Tax and "City Tax Base" shall mean the amount of Taxes as

hereinabove defined, imposed, levied, assessed and/or collected on the Property

for the 2004 City, County and State Tax.

 

         G. The term "School Tax Year" shall mean each period of twelve (12)

consecutive months commencing as of the first day of July of each such period;

and "City Tax Year" shall mean each period of twelve (12) consecutive months

commencing as of the first day of January of each such period, in which any part

of the term of this Lease shall occur, or such other periods of twelve (12)

months as may be adopted as the fiscal year for real estate tax purposes.

 

         SECTION 3.02.A. Lessee shall pay to Lessor, as Additional Rent, during

or in respect of the period from the Commencement Date to the Expiration Date

(both dates inclusive) for each School Tax Year and City Tax Year or portion

thereof, its proportionate share ("Lessee's Proportionate Share", as hereinafter

defined) of increases in Taxes which will be imposed, levied, assessed or

collected on the Property, and/or Building of which the Demised Premises are a

part, for such School Tax Year and/or City Tax Year, as the case may be, over

the respective tax bases regardless of whether such increase results from a

higher tax rate and/or an increase in the assessed valuation of either the

Property or Building or any other tax. Reasonable fees and expenses, if any,

incurred in obtaining any reduction in assessed valuation from the tentative

assessment to the final assessment shall also be considered an increase in Taxes

for the purpose of this provision. Such payments shall be made by Lessee as

Additional Rent in equal monthly installments during the applicable tax year

together with the payment of Fixed Rent. Copies of tax bills applicable to the

School Tax Base and the City Tax Base, as the case may be, and to any such

applicable tax year shall be made available by Lessor for inspection by Lessee

during normal business hours. In the event of any reduction in Taxes after final

assessment and with respect to which Lessee has paid its proportionate share,

any such reduction, less fees and expenses incurred to obtain such reduction

shall be refunded in proportionate amounts to Lessee.

 

         B. If Lessor obtains a reduction of either the School Tax Base or City

Tax Base by final determination of legal proceedings or otherwise, then: (i) the

School Tax Base or City Tax Base shall be correspondingly revised, (ii) all Tax

payments theretofore paid or payable hereunder shall be recomputed on the basis

of such reduction, (iii) Lessee shall pay to Lessor as Additional Rent, within

thirty (30) days after receipt of a bill therefor, any deficiency between the

 

                                        8

 

<PAGE>

 

 

amount of such Tax payments theretofore computed and the amount thereof due as a

result of such recomputations and (iv) all future Tax payments shall be computed

using the revised School Tax Base and City Tax Base.

 

         SECTION 3.03.A. Lessee shall pay to Lessor, as Additional Rent, during

or in respect of the period from the Commencement Date to the Expiration Date

(both dates inclusive) for each calendar year or portion thereof, Lessee's

Proportionate Share of the increases in the Common Area Maintenance Charges

over the Base Common Area Maintenance Charges (as hereinafter defined). Such

payments shall be made by Lessee as Additional Rent in equal monthly

installments during the applicable calendar year together with the payment of

Fixed Rent.

 

         B. The term "Base Common Area Maintenance Charges" shall mean the

Common Area Maintenance Charges in effect for the calendar year ending December

31, 2003.

 

         SECTION 3.04.A. At any time hereafter and from time to time, Lessor may

furnish to Lessee a Lessor's Statement setting forth (i) Lessor's actual Common

Area Maintenance Charges (or any one or more items thereof) and/or actual Taxes

for a period which shall have expired only if a final statement has not been

previously rendered, and/or (ii) Lessor's reasonable estimate of Common Area

Maintenance Charges and/or Taxes for a succeeding period. Within Thirty (30)

days next following rendition of each such Lessor's Statement, Lessee shall pay

to Lessor the entire amount, if any, shown on such Lessor's Statement as being

due with respect to any period which shall have expired. In addition, Lessee

shall pay to Lessor, on the first day of each month following rendition of each

such Lessor's Statement, on account of the estimated Additional Rent thereafter

payable, a proportionate sum of the total Additional Rent shown upon such

Lessor's Statement as being Lessor's reasonable estimate for a succeeding period

on an annual basis (it being agreed that Lessor's estimate shall in any event be

deemed reasonable if it is based on actual Common Area Maintenance Charges (or

any one or more items thereof) and/or actual Taxes for a period which shall have

expired immediately prior thereto, so that one month prior to the end of such

period, Lessee's Proportionate Share of the increase shall be paid in full, and

Lessee shall continue to pay Additional Rent on such basis until receipt of a

subsequent Lessor's Statement. Such Additional Rent shall be due and payable at

the same time as each monthly installment of Fixed Rent.

 

         B. A reconciliation shall be made upon each Lessor's Statement as

follows: Lessee shall be debited with any Common Area Maintenance Charges and/or

Taxes payable as shown on such Lessor's Statement, and credited with the

 

                                       9

 

<PAGE>

 

 

aggregate of the total amount, if any, paid by Lessee in accordance with the

provisions of the preceding paragraph on account of the estimated Additional

Rent, for the period or item in question, and, within thirty (30) days next

following rendition of such Lessor's Statement, Lessee shall pay Lessor the

amount of any net debit balance shown thereon or Lessor shall apply against the

next ensuing installments of Fixed Rent the net credit balance shown thereon.

 

         C. Without limiting the preceding provisions of Section 3.04, it is

understood that Lessor shall furnish a Lessor's Statement, for each calendar

year falling wholly or partially within the Term.

 

         SECTION 3.05. A. Lessor's failure to render Lessor's Statements with

respect to any period shall not prejudice Lessor's right to render a Lessor's

Statement with respect to that or any subsequent period. The obligations of

Lessor and Lessee under the provisions of this Article with respect to

Additional Rent shall survive the expiration or any sooner termination of the

Term.

 

         B. Each Lessor's Statement shall be conclusive and binding upon Lessee

unless within ninety (90) days after receipt of such Lessor's Statement, Lessee

shall notify Lessor that it disputes the reasonableness or correctness of

Lessor's Statement, specifying the respects in which Lessor's Statement is

claimed to be unreasonable or incorrect. Pending the determination of such

dispute by agreement or otherwise, Lessee shall pay Additional Rent in

accordance with the applicable Lessor's Statement, and such payment will be

without prejudice to Lessee's position.

 

         SECTION 3.06. Lessee shall pay and discharge, or cause to be paid and

discharged, the following items, regardless of to whom or how incurred, all

taxes and assessments, if any, which shall or may during the Term be charged,

levied, assessed or imposed upon, or become a lien upon, the personal property

of Lessee used in the operation of the Demised Premises and which, if not paid

by Lessee, would be collectible from Lessor.

 

                       ARTICLE 4 - USE OF DEMISED PREMISES

 

         SECTION 4.01.A. Subject to the provisions of this Article, Lessee shall

have the right to use the Demised Premises for general and executive office

purposes and for no other purposes.

 

                                       10

 

<PAGE>

 

 

         B. From and after the Commencement Date, Lessor does hereby grant unto

Lessee the privilege and a license to Seven (7) non-reserved parking spaces in

the parking area located on the Property for a period to be coterminous with the

Term of this Lease. Lessee agrees that Lessor shall have the right, in its sole

and absolute discretion, upon thirty (30) days written notice to Lessee, to

change the location of all parking spaces in the event that Lessor determines to

change the area, level, location and arrangement of parking areas and other

facilities; to build multistory parking facilities; to temporarily restrict

parking by lessees, their officers, agents and employees; and to close all or

any portion of said areas or facilities to such extent as may be legally

sufficient to prevent a dedication thereof or the accrual of any right to any

person or the public therein; to close temporarily all or any portion of the

parking areas or facilities to discourage non-customer parking. The license and

privilege hereby granted shall apply only to those duly registered and operating

private passenger motor vehicle(s) owned and operated by Licensee or Licensee's

employees, invitees and contractors and shall not be transferable to any other

person or used for any other purpose other than as herein provided.

 

         SECTION 4.02. Lessee shall not use or occupy the Demised Premises in

any manner or suffer or permit the Demised Premises or any part thereof to be

used in any manner, or do or suffer or permit anything to be done in the Demised

Premises, or bring anything into the Demised Premises or suffer or permit

anything to be brought into the Demised Premises, which would in any way do any

of the following: (a) violate any of the provisions of the Mortgage (as

hereinafter defined) or Superior Lease (as hereinafter defined); (b) violate any

Legal Requirements, Insurance Requirements or Environmental Laws (as such terms

are hereinafter defined); (c) make void or voidable any insurance policy then in

force with respect to the Demised Premises, Building or Property; (d) make

unobtainable from insurance companies authorized to do business in the State of

New York and rated by Best's Insurance Rating Service with a rating at least

equal to A:XII, at standard rates without any special premium or charge, any

fire or other casualty insurance with extended coverage, or rental, liability or

boiler insurance, or other insurance provided for in Section 11.01 or otherwise

may be required to be furnished by Lessor under the terms of the Mortgage or

Superior Lease with respect to the Demised Premises; (e) cause physical damage

to the Demised Premises, Building or Property, or any part thereof; (f)

constitute a public or private nuisance; (g) substantially impair the appearance

or character of the Demised Premises, Building or Property; (h) discharge or

cause the discharge of objectionable substances, fumes, vapors or odors from the

 

                                       11

 

<PAGE>

 

 

Demised Premises not otherwise in compliance with Legal Requirements, Insurance

Requirements and Environmental Laws; (i) cause Lessee to default in the

observance and performance of any of its other obligations to be observed and

performed under this Lease; (j) unreasonably interfere with the effectiveness or

accessibility of the utility, mechanical, electrical and other systems installed

or located anywhere at the Demised Premises, or (k) violate any of the

Building's Rules and Regulations annexed hereto as EXHIBIT "C," as same may be

amended from time to time.

 

         SECTION 4.03. If any governmental license or permit shall be required

for the proper and lawful conduct of Lessee's business in the Demised Premises

or any part thereof, then Lessee, at its sole cost and expense, shall duly

procure and thereafter maintain such license or permit and submit the same to

inspection by Lessor. Lessee shall, at all times, comply with the terms and

conditions of each such license or permit, but in no event shall failure to

procure and maintain same by Lessee affect Lessee's obligations hereunder.

Lessee shall not use or occupy the Demised Premises, or suffer or permit anyone

to use or occupy the Demised Premises, in violation of any certificate of

occupancy issued for the Building or Property.

 

         SECTION 4.04. Lessor shall obtain a certificate(s) of occupancy

required for Lessee's occupancy of the Demised Premises upon the Commencement

Date.

 

         SECTION 4.05. Lessee shall not place, or suffer, or permit anyone to

place a load upon any floor of the Building that exceeds the floor load per

square foot that such floor was designed to carry and which is allowed by

certificate, rule, regulation, permit or law, nor shall Lessee overload, or

suffer, or permit anyone to overload any wall, roof, land surface, pavement,

landing or equipment on the Demised Premises.

 

         SECTION 4.06. Lessee shall not use, or suffer, or permit anyone to use,

on or across the Demised Premises, Building or Property, any equipment having

caterpillar-type tracks or tires, or any other equipment which would be damaging

to the Demised Premises, Building or Property or any road surface or

blacktopping thereon.

 

         SECTION 4.07. A. Lessee shall not release, discharge or dispose of, or

permit, or suffer any release, discharge or disposal of any Hazardous Material

at the Demised Premises in violation of any Environmental Law (as hereinafter

defined). Lessee shall not permit or suffer the manufacture, generation,

storage, transmission or presence of any Hazardous Material over or upon the

Demised Premises in violation of any Environmental Law.

 

         B. Lessee shall: (i) promptly, upon learning thereof, notify Lessor of

any violation of, or non-compliance with, potential violation of or

non-compliance with, or liability or potential liability under, any

Environmental Law concerning the Demised Premises, (ii) promptly make (and

 

                                        12

 

<PAGE>

 

 

deliver to Lessor copies of) all reports or notices that Lessee is required to

make under any Environmental Law concerning the Demised Premises and maintain in

current status all permits and licenses required under any Environmental Law

concerning the Demised Premises, (iii) immediately comply with any orders,

actions or demands of any Governmental Authority (as herein defined) with

respect to the discharge, clean-up or removal of Hazardous Materials at or from

the Demised Premises due to a breach of a covenant set forth in Section 4.07.A,

(iv) pay when due the cost of removal of, treatment of, or the taking of

remedial action with respect to, any Hazardous Material on the Demised Premises

which is required by an Environmental Law due to a breach of a covenant set

forth in Section 4.07.A, (v) keep the Demised Premises free of any lien imposed

pursuant to any Environmental Law in respect of a breach of a covenant set forth

in Section 4.07.A, (vi) from time to time, upon the request of Lessor, execute

such affidavits, certificates and statements concerning Lessee's knowledge and

belief concerning the presence of Hazardous Materials on the Demised Premises

and (vii) otherwise comply with all Environmental Laws concerning the Demised

Premises.

 

         SECTION 4.08.A. Lessor shall include Lessee's name on any internal

Building directory and on the floor directional signs. Other than the foregoing,

Lessee shall not place or suffer to be placed or maintain any sign, awning or

canopy upon or outside the Demised Premises or in the Building; nor shall Lessee

place at the store front any sign, decoration, lettering or advertising matter

of any kind without first obtaining Lessor's written approval and consent in

each instance. In the event that Lessor gives its consent hereunder, all signs

shall be of a size, color and design as is approved in writing by Lessor and

shall be installed where designated by Lessor and maintained in good condition,

repair and appearance at all times, according to Lessor's standards and the laws

of the municipality having jurisdiction over such signs. If Lessor shall deem it

necessary to remove any sign in order to paint or to make any repairs,

alterations or improvements in or upon the Demised Premises or any part thereof,

Lessor shall have the right to do so, provided the same be removed and replaced

at Lessor's cost and expense unless having been occasioned by fault of Lessee.

Lessor shall have the right, with or without notice to Lessee, to remove any

signs (paper or otherwise) installed by Lessee in violation of this paragraph

and to charge Lessee the cost of such removal without liability to Lessee for

such removal.

 

         SECTION 4.09 No property, other than such as might normally be brought

upon or kept in the Demised Premises as incidental to the reasonable use of the

Demised Premises for the purposes herein permitted, will be brought upon or kept

in the Demised Premises.

 

                                       13

 

<PAGE>

 

 

             ARTICLE 5- POSSESSION AND CONDITION OF DEMISED PREMISES

 

         SECTION 5.01. Lessee accepts the Demised Premises in their "AS IS"

state and condition on the Commencement Date and without any representation or

warranty (except as expressly set forth herein), express or implied, in fact or

by law, by Lessor, and without recourse to Lessor, as to title thereto, the

nature, condition or usability thereof or as to the use or occupancy which may

be made thereof.

 

         SECTION 5.02. If delivery of possession to the Demised Premises to

Lessee is delayed by reason of Unavoidable Delays (as hereinafter defined), then

this Lease and the validity thereof shall not be affected thereby and Lessee

shall not be entitled to terminate this Lease, to claim actual or constructive

eviction, partial or total, or to be compensated for loss or injury suffered as

a result thereof, nor shall the same be construed in any way to extend the Term,

PROVIDED, HOWEVER, that, notwithstanding the provisions of Article 1, the

Commencement Date shall be deemed to occur only if and when possession of the

Demised Premises is made available to Lessee.

 

         SECTION 5.03. The provisions of this Article shall be considered an

express provision to the contrary pursuant to New York REAL PROPERTY LAW Section

223-(a) governing delivery of possession of the Demised Premises and any law

providing for such a contingency in the absence of such express agreement now or

hereafter enacted shall have no application in such case to the extent

inconsistent with this Lease.

 

                      ARTICLE 6- UTILITIES, CLEANING, ETC.

 

         SECTION 6.01.A. During the Term hereof and any Renewal Term, Lessor

shall furnish to Lessee, during Normal Working Hours (as hereinafter defined:

(i) necessary elevator facilities; (ii) heat to the Demised Premises when and as

required by law; (iii) water for ordinary lavatory purposes for the Demised

Premises, but if Lessee uses or consumes water for any other purposes or in

unusual quantities (of which fact Lessor shall be the sole judge), Lessor may

install a water meter at Lessee's expense in good working order and repair to

register such water consumption and Lessee shall pay for water consumed as shown

on said meter as Additional Rent as and when bills are rendered; (iv) air

conditioning and/or cooling for the Demised Premises through the Building's air

conditioning and/or cooling system (the "Building's AC System"); (v) ventilation

for the Demised Premises; and (vi) electricity for Building lighting and normal

Building equipment and other incidental equipment (hereinafter collectively

referred to as the "Utility Service").

 

         B. Except as otherwise specifically provided for in this Lease, Lessor

represents and warrants that Lessee shall have access (by elevator) to the

Demised Premises Twenty-Four (24) hours a day, Seven (7) days a week.

 

                                       14

 

<PAGE>

 

 

         C.1. The Building's AC System shall be capable of substantially meeting

the following maximum performance specifications:

 

                Inside Condition                 Outside Condition

                   (DEGREES)                         (DEGREES)    

               ----------------                 ------------------

 

               Cooling Season                   

                78(degree)F dry bulb             95(degree)F dry bulb

               50% RH                           75(degree)F wet bulb

 

               Heating Season                   0(degree)F

               72(degree)F dry bulb

 

         2. The foregoing performance standards shall be inapplicable where the

Demises Premises are occupied by more than an average of one person for each 200

square feet of Lessee's floor space or if Lessee installs and operates machines

and appliances, the installed electrical load of which when combined with the

load of all lighting fixtures and all occupancy factors exceeds four (4) watts

of connected load per square foot of Lessee's floor space in any one room or

other area or in any area used other than for offices. If due to use of the

Demised Premises in a manner exceeding the aforementioned occupancy and

electrical load criteria, or due to rearrangement of partitioning after the

initial preparation of the Demised Premises, interference with normal operation

of the air conditioning in the Demised Premises results, necessitating changes

in the air conditioning system servicing the Demised Premises, such changes

shall be made by Lessor upon written notice to Tenant and Tenant's sole cost and

expense. Tenant agrees to keep all windows closed, and to lower and close window

coverings when necessary because of the sun's position whenever the said air

conditioning system is in operation, and Lessee agrees at all times to cooperate

fully with Lessor and to abide by all the regulations and requirements which

Lessor may prescribe for the proper functioning and protection of the said air

conditioning system. Lessor, throughout the Term, shall have free and

unrestricted access to any and all air conditioning facilities in the Demised

Premises.

 

          SECTION 6.02. During the Term hereof and any Renewal Term, Lessor shall

furnish to Lessee cleaning services for the Demised Premises, Monday through

Friday, in accordance with the Cleaning Specifications annexed hereto as EXHIBIT

"D".

 

                                        15

 

<PAGE>

 

         SECTION 6.03.A. If Lessee uses the Demised Premises outside Normal

Working Hours and such use constitutes Extraordinary Use (as hereinafter

defined), Lessee agrees to pay to Lessor, overtime charges to cover Lessor's

actual expenses for electricity for lighting and normal Building Equipment (as

hereinafter defined) and other incidental equipment, extra building maintenance,

building employee overtime, furnishing water for lavatories, air cooling, heat,

ventilation, wear and tear, etc ("Overtime Charge").

 

         B.1 Lessor shall furnish such overtime service to Lessee provided that

(i) Lessee pays to Lessor as Additional Rent the Overtime Charge therefore,

which Overtime Charge will be billed to Lessee along with Lessee's next monthly

installment of Fixed Rent if such service shall have been furnished to Lessee

prior to the fifteenth (15th) day of the month or along with the subsequent

monthly installment of Fixed Rent if such service shall have been furnished to

Lessee after the fifteenth (15th) day of the month, and (ii) that Lessee's

request shall be received by Lessor by not later than 2:00 P.M. on the day for

which after hours service is requested (and by not later than 2:00 P.M. on the

day preceding any requested before-hours service) Notwithstanding anything

contained to the contrary in this Article 6, Lessee shall not be required to pay

Overtime Charges for intermittent use of the Demised Premises outside Normal

Working Hours, unless such use shall be on a scale and frequency so as to

constitute the regular operation of Lessee's business outside Normal Working

Hours ("Extraordinary Use"). In no event, however, shall Lessor be obligated to

supply heating or air conditioning outside of Normal Working Hours unless Lessee

shall request and pay for the same as provided in this Article 6. In the event

that Lessee and any other tenant in the Building shall request Overtime

Services, then, to the extent that the Building Equipment permits same, Lessee

and such other tenants shall pay their proportionate share of the Overtime

Charges.

 

         2. Lessee agrees that the Overtime Charges, may from time to time, be

increased by Lessor, with not less than thirty (30) days prior written notice to

Lessee, if the rates at which Lessor purchases electrical energy from the public

utility corporation supplying electrical current to the Building of which the

Demised Premises are a part shall be increased, or any tax is imposed upon

Lessor's receipt from the sale or resale of electrical energy by any Federal,

State or Municipal Authority, or any charges incurred or taxes payable by Lessor

in connection therewith shall be increased. The Overtime Charges shall be

 

                                       16

 

<PAGE>

 

 

increased by an amount equal to the product of the respective hourly rate times

the percentage increase in the rates at which Lessor purchases electrical energy

from the public utility corporation as aforesaid.

 

         SECTION 6.04.A. Lessee acknowledges and agrees that Lessor shall

furnish electrical current to Lessee ("Electric Service") for use in the Demised

Premises based on the method of including the use thereof within the Fixed Rent

and, accordingly, Lessee agrees that the Fixed Rent provided for in Article 2 of

this Lease has been increased to compensate Lessor for supplying Electric

Service on the basis of Two and 50/100 Dollars ($2.50) per square foot per annum

for each square foot contained in the Demised Premises (hereinafter referred to

as the "Base Charge") payable in equal monthly installments commencing on the

Commencement Date. By the execution of this Lease, Lessee acknowledges and

agrees that the Base Charge shall not be contestable by Lessee at a future date

and shall only be increased by Lessor at a future date in accordance with this

Section. Lessor will furnish electricity to Lessee through presently installed

electrical facilities for Lessee's reasonable use.

 

         B.1. Lessee shall make no substantial alterations or additions to the

initial lighting, electrical appliances or office equipment if the connected

electrical load, when combined with the load of all lighting fixtures and all

occupancy factors exceeds four (4) watts per square foot of installed ceiling

area, without first obtaining written consent from Lessor in each instance.

Lessor warrants that the electrical facilities servicing the Demised Premises is

in good working order and can accommodate a normal office installation with

associated office machinery and equipment, PROVIDED, HOWEVER, that the connected

electrical load, when combined with the load of all lighting fixtures and all

occupancy factors does not exceed four (4) watts per square foot of installed

ceiling area. Lessee agrees that at all times its use of Electric Service shall

not exceed the capacity or overload any of the central and appurtenant

installations for Electric Service including, but not limited to all wires,

feeders, risers, electrical boxes, switches, outlets, connections, and cables

located in the Property, Building, or Demised Premises or any other mechanical

equipment spaces located therein. Lessee's use of Electric Service shall not

interfere with the use thereof by other occupants of the Property, or Building

and shall be of such a nature, as determined by Lessor in its sole judgment and

discretion, so as not cause permanent damage or injury to the Demised Premises

or the Building of which the Demised Premises are a part, or cause or create a

dangerous or hazardous condition or entail excessive or unreasonable

alterations, repairs or expense, or interfere with or disturb other tenants or

occupants.

 

                                       17

 

<PAGE>

 

 

         2. If at any time prior to or during the Term or any Renewal Term of

this Lease, subject to the restrictions contained elsewhere in this Lease: (i)

Lessee installs substantial additional or substituted lighting, electrical

appliances, office equipment or otherwise increases its use of Electric Service

so that the connected electrical load, when combined with the load of all

lighting fixtures and all occupancy factors exceeds four (4) watts per square

foot of installed ceiling area, and/or; (ii) subject to the provisions of

Article 8 of this Lease, electrical feeders, risers, wiring or other electrical

facilities serving the Demised Premises shall be installed by Lessor, Lessee or

others, on behalf of Lessee or any person claiming through or under Lessee in

addition to the feeders, risers, wiring or other electrical facilities necessary

to serve the lighting fixtures, electrical appliances, office equipment and

electrical receptacles initially located in the Demised Premises so that the

connected electrical load, when combined with the load of all lighting fixtures

and all occupancy factors exceeds four (4) watts per square foot of installed

ceiling area; then the Fixed Rent shall be increased by an amount determined by

the electrical engineer selected by Lessor who shall certify the amount of the

Additional Rent to be increased in writing to Lessor and Lessee. Following any

such determination and certification by the electrical engineer, this Lease

shall automatically be modified by increasing the Additional Rent by an amount

equal to (i) the product of the Base Charge times the percentage increase in

Lessee's use of electrical current over that for Lessee's initially installed

lighting, electrical appliances and office equipment and/or (ii) the product of

the Base Charge times the percentage increase in the potential additional

electrical energy made available to Lessee annually based upon the estimated

capacity of such additional electrical feeders, risers, wiring or other

electrical facilities, as the case may be. As evidence of such modification such

electrical engineer's certification shall be delivered by Lessor to Lessee and

also appended hereto. Any such increase shall be effective as of the date of the

first use by Lessee of such additional service and retroactive to such date if

necessary. In addition, Lessee shall pay to Lessor, as Additional Rent, within

ten (10) days of the date of a notice therefore from Lessor, the total Cost (as

hereinafter defined) to Lessor of the additional electrical feeders, risers,

wiring, or other electrical facilities serving the Demised Premises.

 

         C. If, at any time or times after the date of this Lease, the rates at

which Lessor purchases electrical energy from the public utility corporation

supplying electrical current to the Building of which the Demised Premises are a

part shall be increased, or any tax is imposed upon Lessor's receipt from the

 

                                       18

 

<PAGE>

 

 

sale or resale of electrical energy or gas or telephone service to Lessee by any

Federal, State or Municipal Authority, or any charges incurred or taxes payable

by Lessor in connection therewith shall be increased, the Additional Rent shall

be increased by an amount equal to the product of the Base Charge times the

percentage increase in the rates at which Lessor purchases electrical energy

from the public utility corporation as aforesaid, over those rates in effect on

the date of the calculation of the Base Charge. The rates in effect on the date

of the calculation of the Base Charge is more particularly set forth on EXHIBIT

"E" annexed hereto and made a part hereof. Following any such rate increase or

other charge, this Lease shall automatically be modified by increasing the

Additional Rent for the remainder of the term hereof in accordance with this

Subsection and, as evidence of such modification, documentation of such rate

increase or other charge shall be delivered by Lessor to Lessee and also

appended hereto. Any such increase in the Additional Rent shall be effective as

of the date of any such increase in cost or other charge to Lessor and shall be

retroactive to such date if necessary.

 

         D. Notwithstanding anything contained to the contrary in this Article

6, Lessor shall have the right, at its option, to conduct a survey of the

Demised Premises by an electrical engineer of Lessor's choosing at any time

during the term of this Lease in order to determine Lessee's actual use of

electrical current therein. In the event that Lessor's survey provided for in

the preceding sentence shall indicate that Lessee's use of electrical current

then exceeds that at the time of Lessee's initial installation of its lighting

fixtures, electrical appliances and office equipment, Lessee, upon receipt of

notice from Lessor, shall pay to Lessor an increase in Fixed Rent equal to an

amount determined by multiplying the Base Charge times the percentage increase

in Lessee's use of electrical current over that for Lessee's initially installed

lighting, electrical appliances and office equipment. Any such increase shall be

payable in accordance with the terms of this Article 6 and shall be effective as

of the date of Lessee's first increased use of electrical current and shall be

retroactive to such date, if necessary.

 

         SECTION 6.05. Lessor reserves the right to stop, interrupt and/or

suspend Utility Service and/or Electric Service when necessary by reason of

accident or for repairs, alterations, replacements or improvements necessary or

desirable in the judgement of Lessor for as long as may be reasonably required

 

                                       19

 

<PAGE>

 

 

by reason thereof. The repairs, alterations, replacements or improvements shall

be done with a minimum of inconvenience to Lessee and upon reasonable advance

notice to Lessee (except that a lesser notice appropriate under the

circumstances shall be given in the event of an emergency) and Lessor shall use

its best efforts to pursue same with due diligence.

 

         SECTION 6.06. The Lessor shall in no way be liable for any loss,

damage, or expense which Lessee may incur as a result of the change, at any

time, of the character or quality of Electric Service or Utility Service or any

failure of or defect in Electric Service or Utility Service by reason of any

public or private utility company then supplying such service to the Property,

Building or the Demised Premises and Lessee agrees to hold the Lessor harmless

and to indemnify it from and against any loss, liability or damage to Lessee or

a third party in connection therewith due to the negligent acts or omissions of

Lessee and its agents, employees, contractors, subcontractors, officers and

directors. This indemnity shall survive the expiration or other termination of

this Lease.

 

                        ARTICLE 7- REPAIR AND MAINTENANCE

 

         SECTION 7.01.A. Subject to the provisions of Section 7.02 hereof,

Lessee shall, during the Term of this Lease and any Renewal Term, at Lessee's

sole cost and expense, take good care of, maintain and make all repairs, (other

than structural) in the Demised Premises, and the fixtures and equipment therein

and appurtenances thereto, including but not limited to, internal doors and

entrances, door checks, internal signs, floor covering, interior walls, columns

and partitions; and lighting, heating, hot water, plumbing and sewerage

facilities, sprinkler system and sprinkler heads; and variable air volume boxes

and controls, thermostats and light switches, supplemental air conditioning

units, if any, located within the Demised Premises and serving only the Demised

Premises.

 

         B. If Lessee refuses or neglects to clean, maintain or make repairs or

otherwise fails to perform any of Lessee's repairs or maintenance obligations

hereunder, Lessor shall have the right, but shall not be obligated, to make such

repairs or perform on behalf of and for the account of Lessee. All sums so paid

by Lessor in connection with the payment or performance by it or any of the

obligations of Lessee hereunder and all actual and reasonable costs, expenses

and disbursements paid in connection therewith or enforcing or endeavoring to

 

                                        20

 

<PAGE>

 

 

enforce any right under or in connection with this Lease, or pursuant to law,

together with interest thereon at the maximum legal rate from the respective

dates of the making of such payment, shall constitute Additional Rent payable by

Lessee under this Lease and shall be paid by Lessee to Lessor upon demand by

Lessor. The provisions of this Section shall survive the expiration or other

termination of this Lease.

 

         SECTION 7.02. Lessor shall not be required to make any repairs or

improvements of any kind upon the Demised Premises except for necessary

structural repairs to the Building, Building Equipment, or for damage caused by

a casualty or Lessor's negligent acts, excluding Lessee's property. Lessor shall

during the Term of this Lease and any Renewal Term, maintain and repair all

common areas and other facilities in or about the Property and/or the Building,

exclusive of interior doors, door frames, door checks, windows and window

frames. Lessor shall have the right to construct, maintain and operate lighting

and other facilities on all said areas and improvements; to police the same; to

change the area, level, location and arrangement of parking areas and other

facilities; to build multistory parking facilities; to restrict parking by

Lessee's, their officers, directors, agents and employees, to enforce parking

charges (by operation of meters and otherwise); and to close all or any portion

of said areas or facilities to such extent as may be legally sufficient to

prevent a dedication thereof or the accrual of any right to any person or the

public therein; to close temporarily all or any portion of the parking areas or

facilities to discourage non-visitor parking. Lessor shall operate and maintain

the common areas in such manner as Lessor in its discretion shall determine, and

Lessor shall have full right and authority to employ and discharge all personnel

with respect thereto. If Lessor shall designate an employee or lessee parking

area or areas, Lessee and its employees shall use only such areas for parking

and Lessee shall cooperate fully with Lessor in enforcing this covenant.

 

         SECTION 7.03. "Repairs" as used herein shall mean all repairs,

replacements, renewals, alterations, additions and betterments. All contracts

between Lessee and others for installations, maintenance, and repairs and

alterations involving the Demised Premises, including maintenance agreements,

shall be subject to the prior written approval of Lessor, not to be unreasonably

withheld or delayed.

 

                                       21

 

<PAGE>

 

 

         SECTION 7.04. Lessor shall not be required to make any repairs or

replacements to the common areas occasioned by the act or negligence of Lessee,

its agents, employees, invitees, customers, licensees, or contractors, except to

the extent that Lessor is reimbursed therefor under any policy of insurance

permitting waiver of liability and containing a waiver of subrogation, except as

otherwise provided in this Article and Article 12 of this Lease.

 

                     ARTICLE 8- LESSOR'S WORK; LESSEE'S WORK

 

         SECTION 8.01. Lessee acknowledges that Lessor shall have no obligation

whatsoever to perform any build-out or similar work to Demised Premises, and

Lessee agrees to accept same in "AS IS" physical order and condition on the

Commencement Date and without any representation or warranty, express or

implied, in fact or by law, by Lessor, and without recourse to Lessor, as to the

nature, condition or usability thereof or as to the use or occupancy which may

be made thereof.

 

         SECTION 8.02 Following the Commencement Date, Lessee shall build-out

and fully equip the Demised Premises with all trade and operating fixtures and

equipment, plumbing, lighting and other fixtures and equipment, furniture,

furnishings, floor covering, and any and all other items necessary for the

proper operation of Lessee's business ("Lessee's Work"). All trade and operating

fixtures and equipment, plumbing, lighting and other fixtures and equipment,

furniture, furnishings, fixtures, floor covering, and any and all other items

necessary for the proper operation of Lessee's business installed by Lessee

shall be new or completely reconditioned and shall not be subject to liens,

conditional sales contracts, security agreements or chattel mortgages. Lessee

shall complete or cause to be completed all of Lessee's Work required on

Lessee's part to be performed in and at the Demised Premises under this Lease

pursuant to Lessor's STANDARD REQUIREMENTS FOR ALTERATIONS TO BE PERFORMED BY

LESSEES' annexed hereto as EXHIBIT "G" and made a part hereof.

 

         SECTION 8.03. Other than Lessee's Work, Lessee shall not do any

construction, work or alterations to the Demised Premises, nor shall Lessee

install any items other than Lessee's trade fixtures without first: (1)

obtaining Lessor's written consent AND (2) complying with all of the terms,

covenants and conditions contained in Lessor's STANDARD REQUIREMENTS FOR

ALTERATIONS TO BE PERFORMED BY LESSEES', as may be amended from time to time.

 

                                       22

 

<PAGE>

 

 

                         ARTICLE 9- COMPLIANCE WITH LAWS

 

         SECTION 9.01. Lessor represents that the Demised Premises, the Building

and Property will comply with all Legal Requirements, Environmental Laws and

Insurance Requirements as of the Commencement Date.

 

         SECTION 9.02. Throughout the Term of this Lease, Lessee shall promptly

comply with all Legal Requirements, Environmental Laws and Insurance

Requirements whether or not such compliance involves structural repairs or

changes or be required on account of any particular use to which the Demised

Premises, or any part, may be put by Lessee, other than general office use, and

whether or not any such Legal Requirements, Environmental Laws, or Insurance

Requirements be of a kind not now within the contemplation of the parties

hereto. Compliance by Lessee with Legal Requirements, Environmental Laws, and

Insurance Requirements shall be at Lessee's sole cost and expense. Lessee shall

not contest the application or validity of any such Legal Requirements,

Environmental Laws, or Insurance Requirements without the prior written consent

of Lessor in each such instance. Any repair or change required under this

Section shall be deemed a repair for the purposes of Article 7. With respect to

actions necessary to comply with Legal Requirements, Insurance Requirements and

Environmental Laws which due to their nature, can only be taken by Lessor,

Lessor, at Lessee's expense, will cooperate with Lessee in facilitating such

compliance.

 

                      ARTICLE 10- RIGHTS RESERVED TO LESSOR

 

         SECTION 10.01. Lessee shall permit Lessor, Lessor's agents, and its

invitees to enter the Demised Premises, or any part thereof, at all reasonable

times provided same does not unreasonably interfere with Lessee's business and a

representative of Lessee is present for the purposes of (a) inspecting the same,

(b) curing Events of Default of Lessee (after Ten (10) days notice to Lessee,

except that no notice shall be required in case of an emergency), (c) showing

the same to mortgagees, appraisers, or prospective lenders, purchasers or

lessees, (d) observing the performance by Lessee of its obligations under this

Lease, (e) performing any act or thing which Lessor may be obligated or have the

right to do under this Lease or otherwise, and (f) any other reasonable purpose.

Lessor and any providers of Utility Services or other services shall have the

right to maintain existing utility, mechanical, electrical and other systems and

to enter upon the Demised Premises to make such repairs and alterations therein

 

                                       23

 

<PAGE>

 

 

or in or to the Demised Premises as may, in the opinion of Lessor, be deemed

necessary or advisable. Lessor shall not be liable for inconvenience, annoyance,

disturbance or loss of business to Lessee or any sublessee by reason of making

any repairs or the performance of any work, or on account of bringing materials,

tools, supplies and equipment into or through the Demised Premises during the

course thereof and the obligations of Lessee under this Lease shall not be

affected thereby. The rights provided in this Article shall be exercised so as

to minimize interference with the use and occupancy of the Demised Premises by

Lessee. Nothing contained in this Article shall impose, or shall be construed to

impose on Lessor any obligation to maintain the systems referred to in this

Article or the Demised Premises or anything appurtenant thereto, or to make

repairs or alterations thereof or thereto, or to create any liability for any

failure to do so.

 

         SECTION 10.02.A. Without abatement or diminution in rent, Lessor

reserves and shall have the following additional rights: (a) to change the

street address and/or the name of the Building of which the Demised Premises are

a part and/or the Property and/or the locations of entrances, passageways,

doors, doorways, corridors, elevators, stairs, toilets, or other public parts of

the Building and/or Property without liability to Lessee, (b) to approve in

writing all sources furnishing construction work, painting, decorating,

repairing, maintenance and any other work in or about the Demised Premises, (c)

to erect, use and maintain pipes and conduits in and through the Demised

Premises, (d) to charge to Lessee any expense including overtime cost incurred

by Lessor in the event that repairs, alterations, decorating or other work in

the Demised Premises are made or done after ordinary business hours at Lessee's

request, (e) to immediately enter and alter, renovate, and redecorate the

Demised Premises (without reduction or abatement of rent or incurring any

liability to Lessee for compensation), if during the last four (4) months of the

term or of a renewal term Lessee shall have removed all or substantially all of

Lessee's property therefrom, and (f) to grant to anyone the exclusive right to

conduct any particular business or undertaking in the Building of which the

Demised Premises are a part.

 

         B. Lessor may exercise any or all of the foregoing rights hereby

reserved to Lessor without being deemed guilty of an eviction, actual or

constructive, or disturbance or interruption of Lessee's use or possession and

without being liable in any manner toward Lessee and without limitation or

abatement of rent or other compensation, and such acts shall have no effect on

this Lease.

 

                                       24

 

<PAGE>

 

 

                              ARTICLE 11- INSURANCE

 

         SECTION 11.01. A. Lessee shall obtain and keep in full force and effect

during the Term, and during any earlier period of time when Lessee or Lessee's

agents, employees, or contractors may enter the Demised Premises at its own cost

and expense:

 

                  (1) commercial general liability insurance (with a contractual

         liability endorsement covering the matters set forth in Article 16)

         having a combined single limit of not less than Three Million

         ($3,000,000.00) Dollars protecting Lessor, any Lessor's agent which is

         acting as a property manager for the Property, the holder of any

         Mortgage, or


SITE SEARCH

AGREEMENTS / CONTRACTS

Document Title:

Entire Document: (optional)

Governing Law:(optional)
 

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Close this window