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
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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
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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
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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.
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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
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<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.
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<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.
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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.
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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
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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.
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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
