1
EXHIBIT 10(x)
STANDARD FORM OF MULTI-TENANT
LEASE AND RIDER
TABLE OF CONTENTS
ARTICLE PAGE
------- ----
1. Rent.............................................................................. 1
2. Occupancy......................................................................... 1
3. Tenant Alterations................................................................ 1
4. Maintenance and Repairs........................................................... 1
5. Window Cleaning................................................................... 1
6. Requirements of Law, Fire Insurance, Floor Loads.................................. 1
7. Subordination..................................................................... 2
8. Property-Loss, Xxxxxx, Reimbursement, Indemnity................................... 2
9. Destruction, Fire and Other Casualty.............................................. 2
10. Eminent Domain.................................................................... 2
11. Assignment, Mortgage, Etc......................................................... 2
12. Electric Current.................................................................. 2
13. Access to Premises................................................................ 2
14. Xxxxx, Xxxxx Space, Etc........................................................... 3
15. Occupancy......................................................................... 3
16. Bankruptcy........................................................................ 3
17. Default........................................................................... 3
18. Remedies of Owner and Waiver of Redemption........................................ 3
19. Fees and Expenses................................................................. 3
20. Building Alterations and Management............................................... 3
21. No Representation by Owner........................................................ 3
22. End of Term....................................................................... 4
23. Quiet Enjoyment................................................................... 4
24. Failure to Give Possession........................................................ 4
25. No Waiver......................................................................... 4
26. Waiver of Trial by Jury........................................................... 4
27. Inability to Perform.............................................................. 4
28. Intentionally Omitted............................................................. 4
29. Water Charges..................................................................... 4
30. Sprinklers........................................................................ 4
31. Elevators, Heat, Cleaning......................................................... 4
32. Security.......................................................................... 5
33. Captions.......................................................................... 5
34. Definitions....................................................................... 5
35. Adjacent Excavation-Shoring....................................................... 5
36. Intentionally Omitted............................................................. 5
37. Glass............................................................................. 5
38. Estoppel Certificate.............................................................. 5
39. Intentionally Omitted............................................................. 5
40. Successors and Assigns............................................................ 5
41. Additional Definitions............................................................ 6
42. Term; Preparation for Occupancy and Possession.................................... 7
43. Rent.............................................................................. 8
44. Parking........................................................................... 9
45. Tax Escalation.................................................................... 10
46. Common Area Maintenance Charge.................................................... 12
47. Cleaning; Trash Removal........................................................... 13
48. Utilities......................................................................... 14
49. Amendments for Financing; Information for Mortgages............................... 14
50. Broker............................................................................ 15
51. Signs............................................................................. 15
52. Holdover.......................................................................... 15
53. Insurance and Indemnity........................................................... 16
54. Exculpation....................................................................... 17
55. Rules and Regulations............................................................. 17
56. Tenant's Alterations and Maintenance.............................................. 18
57. Notice............................................................................ 18
58. Miscellaneous..................................................................... 19
59. Amendments to Printed Form........................................................ 21
60. Construction Guaranty............................................................. 26
Exhibit A - Rules and Regulations
Exhibit B - Work Specifications
Exhibit C - Floor Plan
2
AGREEMENT OF LEASE, made as of this 7th day of February 1997, between XXXXXX
XXXXXX COMPANY, LLC, A New York limited liability company, having an office at
000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 party of the first part,
hereinafter referred to as OWNER, and ADVANCED VIRAL RESEARCH CORPORATION, a
Delaware corporation, having an office at 0000 Xxxx Xxxxxxxxxx Xxxxx Xxxxxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000 WITNESSETH, Owner hereby leases to Tenant and Tenant
hereby hires from Owner the area of the ground floor approximately 6,100 square
feet (the "Rentable Area") in the building known as 000 Xxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxxxx, Xxx Xxxx, for the term of five (5) years (or until such term
shall sooner cease and expire as hereinafter provided) to commence on the as
set forth in Article 42 both dates inclusive, at an annual rental rate of (the
"Fixed Annual Rent") $85,400.00 per annum which Tenant agrees to pay in lawful
money of the United States which shall be legal tender in payment of all debts
and dues, public and private, at the time of payment, in equal monthly
installments in advance on the first day of each month during said term, at
the office of Owner or such other place as Owner may designate, without any set
off or deduction whatsoever, except that Tenant shall pay the first
monthly installment(s) on the execution hereof (unless this lease be a
renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
OCCUPANCY: 1. Tenant shall pay the rent as above and as
hereinafter provided.
USE: 2. Tenant shall use and occupy demised premises for
general office and laboratory for medical research
ALTERATIONS: 3. Tenant shall make no changes in or to the demised
premises of any nature without Owner's prior written
consent. (A) A Subject to the prior written consent of
Owner, and to the provisions of this article, Tenant at Tenant's expense, may
make alterations, installations, additions or improvements which are
non-structural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises using
contractors or mechanics first approved by Owner. Tenant shall, at its
expense, before making any alterations, additions, installations or
improvements obtain all permits, approval and certificates required by any
governmental or quasi-governmental bodies and (upon completion) certificates of
final approval thereof and shall deliver promptly any duplicates of all such
permits, approvals and certificates to Owner. Xxxxxx agrees to carry and will
cause Xxxxxx's contractors and sub-contractors to carry such xxxxxxx'x
compensation, general liability, personal and property damage insurance as
Owner may require. If any mechanic's lien is filed against the demised
premises, or the building of which the same forms a part, for work claimed to
have been done for, or materials furnished to, Tenant, whether or not done
pursuant to this article, the same shall be discharged by Tenant within thirty
days thereafter, at Xxxxxx's expense, by filing the bond required by law or
otherwise. All fixtures and all paneling, partitions, railings and like
installations, installed in the premises at any time, either by Tenant or by
Owner on Tenant's behalf, shall, upon installation, become the property of
Owner and shall remain upon and be surrendered with the demised premises
unless Owner, by notice to Tenant no later than twenty days prior to the date
fixed as the termination of this lease, elects to relinquish Owner's right
thereto and to have them removed by Tenant, in which event the same shall be
removed from the demised premises by Tenant prior to the expiration of the
lease, at Tenant's expense. (B) Nothing in this Article shall be construed to
give Owner title to or to prevent Xxxxxx's removal of trade fixtures, moveable
office furniture and equipment, but upon removal of any such from the premises
or upon removal of other installations as may be required by Owner, Tenant
shall immediately and at its expense, repair and restore the premises to the
condition existing prior to installation and repair, any damage to the demised
premises or the building due to such removal. All property permitted or
required to be removed, by Xxxxxx at the end of the term remaining in the
premises after Xxxxxx's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or removed from the
premises by Owner, at Xxxxxx's expense.
REPAIRS: 4. Owner shall maintain and repair the exterior of and the
public portions of the building. (C) Tenant shall,
throughout the term of this lease, take good care of the demised premises
including the bathrooms and lavatory facilities and the windows and window
frames and, the fixtures and appurtenances therein and at Tenant's sole cost
and expense promptly make all repairs thereto and to the building, whether
structural or non-structural in nature, caused by or resulting from the
carelessness, omission, neglect or improper conduct of Tenant, Tenant's
servants, employees, invitees, or licensees, and whether or not arising from
such Tenant conduct or omission, when required by other provisions of this
lease, including Article 6. Tenant shall also repair all damage to the
building and the demised premises caused by the moving of Tenant's fixtures,
furniture or equipment. All the aforesaid repairs shall be of quality or
class equal to the original work or construction. If Tenant fails, after ten
days notice, to proceed with due diligence to make repairs required to be made
by Xxxxxx, the same may be made by the Owner at the expense of Tenant, and the
expenses thereof incurred by Owner shall be collectible, as additional rent,
after rendition of a bill or statement therefor. If the demised premises be or
become infested with vermin, Tenant shall, at its expense, cause the same to be
exterminated. Tenant shall give Owner prompt notice of any defective condition
in any plumbing, heating system or electrical lines located in the demised
premises and following such notice, Owner shall remedy the condition with due
diligence, but at the expense of Tenant. If repairs are necessitated by damage
or injury attributable to Tenant, Xxxxxx's servants, agents, employees,
invitees or licensees as aforesaid. Except specifically provided in Article 9
or elsewhere in this lease, there shall be no allowance to the Tenant for a
diminution of rental value and no liability on the part of Owner by reason or
inconvenience, annoyance or injury to business arising from Owner, Tenant or
others making or failing to make any repairs, alterations, additions, or
improvements in or to any portion of the building or the demised premises or in
and to the fixture appurtenances or equipment thereof. The provisions of this
Article 4 with respect to the making of repairs shall not apply in the case of
fire or other casualty with regard to which Article 9 hereof shall apply. (see
ARTICLE 56)
WINDOW CLEANING: 5. Tenant will not clean nor require, permit, suffer or
allow any window in the demised premises to be cleaned
from the outside in violation of Section 202 of the New
York State Labor Law or any other applicable law or of any other body having
or asserting jurisdiction.
REQUIREMENTS 6. Prior to the commencement of the lease term Tenant
OF LAW, is then in possession, and at all times thereafter Tenant
FIRE INSURANCE, shall, at Tenant's sole cost and expense, promptly comply
FLOOR LANDS: with all present and future laws, orders, regulation of
all state, federal, municipal and local governments,
departments, commissions and boards and any direction of any public officer
pursuant to law, and all orders, rules and regulations of the New York Board
of Fire Underwriters, or the Insurance Services police, or any similar body
which shall impose any violation, order or duty upon Owner or Tenant with
respect to the demised premises, arising out of Tenant's use or manner of use
thereof, or, with respect to the building. If arising out of Tenant's use or
manner of use of the demised premises or the building (including the use
permitted under the lease).
3
Except as provided in Article 29 hereof, nothing herein shall require Tenant to
make structural repairs or alterations unless Tenant has, by its manner of use
of the demised premises or method of operation therein, violated any such laws,
ordinances, orders, rules, regulations or requirements with respect therein.
Tenant shall not do or permit any act or thing to be done in or to the demised
premises (1) which is contrary to law, or the Building or any property adjacent
thereto which is contrary to law, or which will invalidate or be in conflict
with public liability, fire or other policies of insurance at any time carried
by or for the benefit of Owner. Tenant shall not keep anything in the demised
premises except as now or hereafter permitted by the Fire Department, Board of
Fire Underwriters, Fire Insurance Rating Organization and other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable in the building nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in effect. (2) If by reason of failure
to comply with the foregoing the fire insurance rate shall, at the beginning of
this lease or at any time thereafter, be higher than it otherwise would be, then
Tenant shall reimburse Owner, as additional rent insurance premiums thereafter
paid by Owner which shall have been charged because of such failure by Xxxxxx.
In any action or proceeding wherein Owner and Tenant are parties, a schedule or
"make-up" or role for the building or demised premises issued by a body making
fire insurance rates applicable in said premises shall be conclusive evidence of
the facts therein stated and of the several items and charges in the fire
insurance rates then applicable to said premises. Tenant shall not place a load
upon any floor of the demised premises exceeding the floor load per square foot
area which it was designed to carry and which is allowed by law. Owner reserves
the right to prescribe the weight and position of all safes, business machines
and mechanical equipment. Such installations shall be placed and maintained by
Tenant, at Tenant's expense, in settings sufficient, in Owner's judgement, to
absorb and prevent violation, noise and annoyance. (see Article 59)
SUBORDINATION:
7. This lease is subject and subordinate to all ground or underlying leases
and to all mortgages which may now or hereafter affect such leases or the real
property or which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any ground or
underlying leases and mortgages. This clause shall be self-operative and no
further instrument or subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such
subordination, Tenant shall execute promptly any certificate that Owner may
request. (see Article 59)
PROPERTY--LOSS, DAMAGE, REIMBURSEMENT, INDEMNITY:
8. Owner or its agents shall not be liable for any damage to property of
Tenant or of others entrusted to employees of the building, nor for loss or
damage to any property of Tenant by theft or otherwise, nor for any injury or
damage to persons or property resulting from any cause of whatsoever nature,
unless caused by or due to the negligence of Owner, its agents, servants or
employees; Owner or its agents shall not be liable for any damage caused by
other tenants or persons in, upon or about said building or caused by
operations in connection of any private, public or quasi public work. If at any
time any windows of the demised premises are temporarily closed, darkened or
bricked up (or permanently closed, darkened or bricked up, if required by law)
for any reason whatsoever including, but not limited to Owner's own acts, Owner
shall not be liable for any damage Tenant may sustain thereby and Tenant shall
not be entitled to any compensation therefor nor abatement or diminution of
rent nor shall the same release Tenant from its obligations hereunder nor
constitute an eviction, Tenant shall indemnify and save harmless Owner against
and from all liabilities, obligations, damages, penalties, claims, costs and
expenses for which Owner shall not be reimbursed by insurance, including
reasonable attorney's fees, paid, suffered or incurred as a result of any
breach by Xxxxxx, Xxxxxx's agents, contractors, employees, invitees, or
licensees, of any covenant or condition of this lease, or the careless ness,
negligence or improper conduct of the Tenant, Xxxxxx's agents, contractors,
employees, invitees or licensees. Tenant's liability under this lease extends
to the acts and omissions of any sub-tenant. In case any action or proceeding
is brought against Owner by reason of any such claim, Tenant, upon written
notice from Owner, will, at Tenant's expense, resist or defend such action or
proceeding by counsel approved by Owner in writing, such approval not to be
unreasonably withheld.
DESTRUCTION, FIRE AND OTHER CASUALTY: 9. (a) If the demised premises or any
part thereof shall be damaged by fire or other casualty, Tenant shall give
immediate notice thereof to Owner and this lease shall continue in full force
and effect except as hereinafter set forth. b) If the demised premises are
partially damaged or rendered partially unusable by fire or other casualty the
damages thereto shall be repaired by and at the expense of Owner and the rent,
until such repair shall be substantially completed, shall be apportioned from
the day following the casualty according to the part of the premises which is
usable. (c) If the demised premises are totally damaged or rendered wholly
unusable by fire or other casualty, the damages thereto shall be repaired by and
at the expense of Owner and the rent, until such repair shall be substantially
completed, shall be proportionately paid up to the time of the casualty and
thenceforth shall cease until the date when the premises shall have been
repaired and restored by Owner, subject to Owner's right to elect not to restore
the same as hereinafter provided. (d) If the building shall be so damaged that
Owner shall decided to demolish it or to rebuild it, then, in any of such
events, Owner may elect to terminate this lease by written notice to Tenant,
given with 90 days after such fire or casualty, specifying a date for the
explanation of the lease, which date shall not be more than 60 days after the
giving of such notice, and upon the date specified in such notice the term of
this lease shall expire as fully and completely as if such date were the date
set forth above for the termination of this lease and Tenant shall forthwith
quit, surrender and vacate the premises without prejudice however, to Owner's
rights and remedies against Tenant under the lease provisions in effect prior to
such termination, and any rent owing shall be paid up to such date and any
payments of rent made by Tenant which were on account of any period subsequent
to such date shall be returned to Tenant. Unless Owner shall
4
serve a termination notice as provided herein, Owner shall make the repairs and
restorations under the conditions of (b) and (c) hereof, with all reasonable
expedition, subject to delays due to adjustment of insurance claims, labor
troubles and causes beyond Owner's control. After any such casualty, Tenant
shall cooperate with Owner's restoration by removing from the premises as
promptly as reasonably possible, all of Tenant's salvageable inventory and
movable equipment, furniture, and other property. Tenant's liability for rent
shall resume five (5) days after written notice from Owner that the premises are
substantially ready for Tenant's occupancy. (e) Nothing contained hereinabove
shall relieve Tenant from liability that may exist as a result of damage from
fire or other casualty. Notwithstanding the foregoing, each party shall look
first in any insurance in his favor before making any claim against the other
party for recovery for loss or damage resulting from fire or other casualty,
and to the extent that such insurance is in force and collectible and to the
extent permitted by law, Owner and Tenant each hereby releases and waives all
right of recovery against the other or any one claiming through or under each
of them by way of subrogation or otherwise. The foregoing release and waiver
shall be in force only if both releasors' insurance policies contain a clause
providing that such a release or waiver shall not invalidate the insurance.
If, and to the extent, that such waiver can be obtained only by the payment of
additional premiums, then the party benefiting from the waiver shall pay such
premium within ten days after written demand or shall be deemed to have agreed
that the party obtaining insurance coverage shall be free of any further
obligation under the provisions hereof with respect to waiver of subrogation.
Tenant acknowledges that Owner will not be obligated to repair any damages of
Section 227 of the Real Property Law and agrees that the provisions of this
article shall govern and control in lieu thereof.(D)
EMINENT DOMAIN:
10. If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purpose, then
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceedings and Tenant shall have no claim for
the value of any unexpired term of said lease.
ASSIGNMENT, MORTGAGE, ETC.:
11. Tenant, for itself, its heirs, distributees, executors, administrators,
legal representatives, successors and assigns, expressly covenants that it
shall not assign, mortgage or encumber this agreement, nor underlet, or suffer
or permit the demised premises or any part thereof to be used by others,
without the prior written consent of Owner in each instance. Transfer of the
majority of the stock of a corporate Tenant or the majority partnership
interest of a partnership Tenant shall be deemed an assignment. If this lease
be assigned, or if the demised premises or any part thereof be underlet or
occupied by anybody other than Tenant, Owner may, after default by Xxxxxx,
collect rent from the assignee, under-tenant or occupant, and apply the
net amount collected to the rent herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of this
covenant, or the acceptance of the assignee, under-tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Xxxxxx
from obtaining the express consent in writing of Owner to any further
assignment or underletting.
ELECTRIC CURRENT:
12. Rates and conditions in respect to submetering or rent inclusion, as the
case may be, to be added in RIDER attached hereto. Tenant covenants and agrees
that at all times its use of electric current shall not exceed the capacity of
existing feeders to the building or the risers or wiring installation and
Tenant may not use any electrical equipment which, in Owner's opinion,
reasonably exercised, will overload such installations or interfere with the
use thereof by other tenants of the building. The change at any time of the
character of electric service shall in no wise make Owner liable or
responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain. (See Article 48)
ACCESS TO PREMISES:
13. Owner or Owner's agents shall have the right (but shall not be
obligated) to enter the demised premises in any emergency at any time, and, at
other reasonable times, (E) to examine the same and to make such repairs,
replacements and improvements as Owner may deem necessary and reasonably
desirable to any portion of the building or which Owner may elect to perform in
the premises after Xxxxxx's failure to make repairs or perform any work which
Tenant is obligated to perform under this lease, or for the purpose of
complying with laws, regulations and other directions of governmental
authorities. Tenant shall permit Owner to use and maintain and replace pipes
(3) and conduits in and through the demised premises and to erect new pipes (3)
and conduits therein provided, wherever possible, (4) they are within walls or
otherwise concealed. Owner may, during the progress of any work in the demised
premises, take all necessary materials and equipment into said premises without
the same constituting an eviction nor shall the Tenant be entitled to any
abatement of rent while such work is in progress nor to any damages by reason
of loss or interruption of business or otherwise. Throughout the term hereof
Owner shall have the right to enter the demised premises at reasonable hours
for the purpose of showing the same to prospective purchasers or mortgagees of
the building, and during the last six months of the term for the purpose of
showing the same to prospective tenants and may, during said six months period,
place upon the premises the usual notices "To Let" and "For Sale" which notices
Tenant shall permit to remain thereon without molestation. If Tenant is not
present to open and permit an entry into the premises, Owner or Owner's agents
may enter the same whenever such entry may be necessary or permissible by
master key or forcibly and provided reasonable care is exercised to safeguard
Tenant's property, such entry shall not render Owner or its agents liable
therefor, nor in any event shall the obligations of Tenant hereunder be
affected. If during the last month of the term Tenant shall have removed all or
substantially all of Tenant's property therefrom, Owner may immediately enter,
alter, renovate or redecorate the demised premises without limitation or
abatement of rent, or incurring liability to Tenant for any compensation and
such act shall have no effect on this lease or Tenant's obligations hereunder.
------------------------
*Rider to be added if necessary
1. or the Building or any property adjacent thereto
2. as if Tenant were not occupying the Building
3. , ducts
4. whether
5
VAULT; VAULT SPACE, AREA:
14. No vaults, vault space or area, whether or not enclosed or covered, not
within the property line of the building is leased hereunder, anything
contained in or indicated on any sketch, blue print or plan, or anything
contained elsewhere in this lease to the contrary notwithstanding. Owner makes
no representation as to the location of the property line of the building. All
vaults and vault space and all such areas not within the property line of the
building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any
federal, state or municipal authority or public utility. Owner shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such revocation, diminution or
requisition be deemed constructive or actual eviction. Any tax, fee or charge
of municipal authorities for such vault or area shall be paid by Tenant, if used
by Xxxxxx, whether or not specifically leased hereunder.
OCCUPANCY:
15. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part. Xxxxxx has inspected the premises and accepts
them as is, subject to the riders annexed hereto with respect to the Owner's
work, if any, in any event, Owner makes no representation as to the condition
of the premises and Xxxxxx agrees to accept the same subject to violations,
whether or not of record. If any governmental license or permit shall be
required for the proper and lawful conduct of Tenant's business, Tenant shall
be responsible for and shall procure and maintain such license or permit.
BANKRUPTCY:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding, this
lease may be cancelled by Owner by sending of a written notice to Tenant within
a reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of any
state naming Tenant as the debtor; or (2) the making by Tenant of an assignment
or any other arrangement for the benefit of creditors under any state statute.
Neither Tenant nor any person claiming through or under Tenant, or by reason of
any statute or order of court, shall thereafter be entitled to possession of the
premises demised but shall forthwith quit and surrender the premises. If this
lease shall be assigned in accordance with its terms, the provisions of this
Article 16 shall be applicable only to the party then owning Tenant's interest
in this lease.
(b) It is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages an amount equal to the difference between
the rental reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and
the fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or
any part thereof be re-let by the Owner for the unexpired term of said lease,
or any part thereof, before presentation of proof of such liquidated damages to
any court, commission or tribunal, the amount of rent reserved upon such
reletting shall be deemed to be the fair and reasonable rental value for the
part or the whole of the premises so re-let during the term of the re-letting.
Nothing herein contained shall limit or prejudice the right of the Owner to
prove for and obtain as liquidated damages by reason of such termination, an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which such damages are to be
proved, whether or not such amount be greater, equal to, or less than the
amount of the difference referred to above.
DEFAULT:
17. (1) If Tenant defaults in fulfilling any of the covenants of this
lease (1) other than the covenants for the payment of rent (2) other than the
covenants for the payment of rent or additional rent; or if this lease be
rejected under Section 235 of Title ll of the U.S. Code (bankruptcy code):" or
if any execution or attachment shall be issued against Tenant or any Tenant's
property whereupon the demised premises shall be taken or occupied by someone
other than Tenant; or if Tenant shall have failed, after five (5) days written
notice, to redeposit with Owner any portion of the security deposit hereunder
then in any one or more of such events, upon Owner serving a written (F) days
notice upon Tenant specifying the nature of said default and upon the expiration
of said (F) days, if Tenant shall have failed to comply with or remedy such
default, or if the said default or omission complained of shall be of a nature
that the same cannot be completely cured or remedied within said (F) period, and
if Tenant shall not have diligently commenced (3) such default within such (F)
day period, and shall not thereafter with reasonable diligence and in good
faith, proceed to remedy or cure such default, then Owner may serve a written
three (3) days' notice of cancellation of this lease upon Tenant; and upon the
expiration of said three (3) days this lease and the term thereunder shall end
and expire as fully and completely as if the expiration of such three (3) day
period were the day herein definitely fixed for the end and expiration of this
lease and the term thereof and Tenant shall then quit and surrender the demised
premises to Owner but Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and
the term shall expire as aforesaid; or if Tenant shall make default in the
payment of the rent reserved herein (G) or any item of additional rent herein
mentioned or any part of either or in making any other payment herein
required; then and in any of such events Owner may without notice, re-enter
the demised premises either by force or otherwise, and dispossess Tenant by
summary proceedings or otherwise, and the legal representative of Tenant or
other occupant of demised premises
6
and remove their effects and hold the premises as if this lease had not been
made, and Tenant hereby waives the service of notice of intention to re-enter or
to institute legal proceedings to that end. If Tenant shall make default
hereunder prior to the date fixed as the commencement of any renewal or
extension of this lease, Owner may cancel and terminate such renewal or
extension agreement by written notice.
REMEDIES OF OWNER AND WAIVER OF REDEMPTION:
18. In case of any such default, re-entry, expiration and/or dispossess
by summary proceedings or otherwise, (a) the rent, and additional rent, shall
become due thereupon and be paid up to the time of such re-entry, dispossess
and/or expiration, (b) Owner may re-let the premises or any part or parts
thereof, either in the name of the Owner or otherwise, for a term or terms,
which may at Owner's option be less than or exceed the period which would
otherwise have constituted the balance of the term of this lease and may grant
concessions or free rent or charge a higher rental than that in this lease, (c)
Tenant or the legal representatives of Tenant shall also pay Owner as
liquidated damages for the failure of Tenant to observe and perform said
Xxxxxx's convenants herein contained, any deficiency between the rent hereby
reserved and or covenanted to be paid and the net amount, if any, of the rents
collected on account of the subsequent lease or leases of the demised premises
for each month of the period which would otherwise have constituted the balance
of the term of this lease. The failure of Owner to re-let the premises or any
part or parts thereof shall not release or affect Tenant's liability for
damages. In computing such liquidated damages there shall be added to
the said deficiency such expenses as Owner may incur in connection with
re-letting, such as legal expenses, attorney's fees, brokerage, advertising
and for keeping the demised premises in good order or for preparing the same
for re-letting. Any such liquidated damages shall be paid in monthly
installments by Tenant on the rent day specified in this lease and any suit
brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Owner to collect the deficiency for any
subsequent month by a similar proceeding. Owner, in putting the demise
premises in good order or preparing the same for re-rental may, at Owner's
option, make such alterations, repairs, replacements, and/or decorations in the
demised premises as Owner, in Owner's sole judgement, considers advisable and
necessary for the purpose of re-letting the demised premises, and the making of
such alterations, repairs, replacements, and/or decorations shall not operate
or be construed to release Tenant from liability hereunder as aforesaid.
Owner shall in no event be liable in any way whatsoever for failure to re-let
the demised premises, or in the event that the demised premises are re-let, for
failure to collect the rent thereof under such re-letting, and in no
event shall Tenant be entitled to receive any excess, if any, of such net
rents collected over the sums payable by Tenant to Owner hereunder. In the
event of a breach or threatened breach by Tenant of any of the covenants or
provisions hereof, Owner shall have the right of injunction and the right to
invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws.
FEES AND EXPENSES:
19. If tenant shall default (H) in the observance or performance of any
term or covenant on Tenant's part to be observed or performed under or by
virtue of any of the terms or provisions in any article of this lease, then,
unless otherwise provided elsewhere in this lease, Owner may immediately or at
any time thereafter and without notice perform the obligation of Tenant
thereunder. If Owner, in connection with the foregoing or in connection with
any default by Xxxxxx in the covenant to pay rent hereunder, makes any
expenditures or incurs any obligations for the payment of money, including but
not limited to attorney's fees, in instituting, prosecuting or defending any
action or proceedings, then Tenant will reimburse Owner for such sums so paid
or obligations incurred with interest and costs. The foregoing expenses
incurred by reason of Tenant's default shall be deemed to be additional rent
hereunder and shall be paid by Tenant to Owner within five (5) days of
rendition of any bill or statement to Tenant thereof. If Xxxxxx's lease term
shall have expired at the time of making of such expenditures or incurring of
such obligations, such sums shall be recoverable by Owner as damages.
BUILDING ALTERATIONS AND MANAGEMENT:
20. Owner shall have the right at any time without the same constituting
an eviction and without incurring liability to Tenant therefor to change the
arrangement and or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building and
to change the name, number or designation by which the building may be known.
(I) There shall be no allowance in Tenant for diminution of rental value and
no liability on the part of Owner by reason of inconvenience, annoyance or
injury to business arising from Owner to other Tenant making any repairs in
the building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's impositions
of any controls of the manner of access to the building by Xxxxxx's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants.
NO REPRESENTATIONS BY OWNER:
21. Neither Owner nor Owner's agents have made any representations or
promises with respect to the physical condition of the building, the land upon
which it is erected or the demised premises, the rents, leases, expenses of
operation or any other matter or thing affecting or related to the demised
premises or the building except as herein expressly set forth and no rights,
easements or licenses are acquired by Tenant by implication or otherwise except
as expressly set forth in the provisions of this lease. Xxxxxx has inspected
the building and the demised premises and is thoroughly acquainted with their
condition and agrees to take the same "as is" on the date possession is
tendered and acknowledges that the taking of possession of the demised premises
by Tenant shall be conclusive evidence that the said premises and the building
of which the same form a part were in good and satisfactory condition at the
time such possession was so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties herein are
merged in this contract, which alone fully and completely expresses the
agreement between Owner and Tenant and any executory agreement made shall be
ineffective to
7
change, modify, discharge or effect an abandonment of it in whole or in part,
unless such executory agreement is in writing and signed by the party against
whom enforcement of the charge, modification, discharge or abandonment is
sought.
---------------------
3. curing
END OF TERM:
22. Upon the expiration or other termination of the term of this lease,
Tenant shall quit and surrender to Owner the demised premises, broom clean, in
good order and condition, ordinary wear and damages which Tenant is not
required to repair as provided elsewhere in this lease excepted, and Tenant
shall remove all its property from the demised premises. Tenant's obligation
to observe or perform this covenant shall survive the expiration or other
termination of this lease.
QUIET ENJOYMENT:
23. Owner covenants and agrees with Tenant that upon Tenant paying the rent and
additional rent and observing and performing all the terms, covenants and
conditions, on Xxxxxx's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, in the
terms and conditions of this lease including, but not limited to, Article 34
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
FAILURE TO GIVE POSSESSION:
24. If owner is unable to give possession of the demised premises on the date
of the commencement of the term hereof, because of the holding-over or
retention of possession of any tenant, undertenant or occupants or if the
demised premises are located in a building being constructed, because such
building has not been sufficiently completed to make the premises ready for
occupancy or because of the fact that a certificate of occupancy has not been
procured or if Owner has not completed any work required to be performed by
Owner, or for any other reason, Owner shall not be subject to any liability for
failure to give possession on said date and the validity of the lease shall not
be impaired under such circumstances, nor shall the same be construed in any
wise to extend the term of this lease, but the rent payable hereinunder shall
be abated (provided Tenant is not responsible for Owners inability to obtain
possession or complete any work required) until after Owner shall have given
Tenant notice that the premises are substantially ready for Tenant's occupancy,
if permission is given to Tenant to enter into the possession of the demised
premises to occupy premises other than the demised premises prior to the
date specified as the commencement of the term of this lease. Tenant covenants
and agrees that such occupancy shall be deemed to be under all the terms,
covenants, conditions and provisions of this lease, except as to the covenant
to pay rent. The provisions of this article are intended to constitute "an
express provision to the contrary" within the meaning of Section 223-a of the
New York Real Property Law.
NO WAIVER
25. The failure of Owner (J) to seek redress for violation of, or to insist upon
the strict performance of any covenant or condition of this lease or of any
of the Rules or Regulations, set forth or hereafter adopted by Owner, shall
not prevent a subsequent act which would have originally constituted a
violation from having all the force and effect of an original violation. The
receipt by Owner of rent with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach and no provision of this lease
shall be deemed to have been waived by Owner unless such waiver by in writing
signed by owner. No payment by Tenant or receipt by Owner of a lesser amount
than the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
of any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Owner may accept such check or payment without
prejudice to Owner's right to recover the balance of such rent or pursue any
other remedy in this lease provided. All check tendered to Owner as and for
the rent of the demised premises shall be deemed payments for the account of
Tenant. Acceptance by Owner of rent from anyone other than Tenant shall not
be deemed to operate as an attornment to Owner by the payor of such rent or as
a consent by Owner to an assignment or subletting by Tenant of the demised
premises to such payor, or as a modification of the provisions of this lease.
No act or thing done by Owner or Owner's agents during the term hereby demised
shall be deemed an acceptance of a surrender of said premises and no agreements
to accept such surrender shall be valid unless in writing signed by Owner. No
employee of Owner or Owner's agent shall have any power to accept the keys of
said premises prior to the termination of the lease and the delivery of keys to
any such agent or employee shall not operate as a termination of the lease or a
surrender of the premises.
WAIVER OF TRIAL BY JURY
26. It is mutually agreed by and between Owner and Tenant that the respective
parties hereto shall and they hereby do waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other (except for personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with this lease, the relationship of
Owner and Tenant, Xxxxxx's use of or occupancy of said premises, and any
emergency statutory or any other statutory remedy. It is further mutually
agreed that in the event Owner commences any summary proceeding for possession
of the premises, tenant will not interpose any counterclaim of whatever nature
or description in any such proceeding.(K)
INABILITY TO PERFORM:
27. This Lease and the obligation of Tenant to pay rent hereunder and perform
all of the other covenants and agreements hereunder on part of Tenant to be
performed shall in no wise be affected, impaired of excused because Owner is
unable to fulfill any of its obligations under this lease or to supply or is
delayed in supplying any service expressly or implied to be supplied or is
unable in make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Owner is prevented or delayed from so doing by reason of strike or
labor troubles or any cause whatsoever beyond Owner's sole control including,
but not limited to, government preemption in connection with a National
Emergency or by reason of any rule, order or regulation
8
of any department or subdivision thereof of any government agency or by reason
of the conditions of supply and demand which have been or are affected by war
or other emergency.
BILLS AND NOTICES:
28. (See Article 57)
WATER CHARGES:
29. If Tenant requires, uses or consumes water for any purpose in addition to
ordinary purposes (of which fact Tenant constitutes Owner to be the sole judge)
Owner may install a water meter and thereby measure Tenant's water consumption
for all purposes. Tenant shall pay owner for the cost of the meter and the
cost of the installation, thereof and throughout the duration of Xxxxxx's
occupancy Tenant shall keep said meter and installation equipment in good
working order and repair at Tenant's own cost and expense in default of which
Owner may cause such meter and equipment to be replaced or repaired and collect
the cost thereof from Tenant, as additional rent. Tenant agrees to pay for
water consumed, as shown on said meter as and when bills are rendered, and on
default in making such payment Owner may pay such charges and collect the same
from Tenant, as additional rent. Tenant covenants and agrees to pay, as
additional rent, the sewer rent, charge or any other tax, rent, levy or charge
which now or hereafter is assessed, imposed or a lien upon the demised premises
or the realty of which they are part pursuant to law, order or regulation made
or issued in connection with the use, consumption, maintenance or supply of
water, water system or sewage or sewage connection of system. If the building
or the demised premises or any part thereof is supplied with water through a
meter through which water is also supplied to other premises Tenant shall pay
to Owner, as addition rely, on the first day of each month, (1) of the total
meter charges as Xxxxxx's portion. Independently of and in addition to any of
the remedies reserved to Owner hereinabove of an in addition to any of the
remedies reserved to Owner hereinabove or elsewhere in this lease, Owner may
sue for and collect any monies to be paid by Xxxxxx or paid by Owner for any of
the reason or purposes hereinbefore set forth.
SPRINKLERS:
30. Anything elsewhere in this lease to the contrary notwithstanding, if the
New York Board of Fire Underwriters or the New York Fire Insurance Exchange or
any bureau, department or official of the federal, state or city government
recommended or require the installation of a sprinkler system or that any
changes, modifications, alterations, or additional sprinkler heads or other
equipment be made or supplied in an existing sprinkler by reason of Tenant's
business, or the location of partitions, trade fixtures, or other contents of
the demised premises, or for any other reason, or if any such sprinkler,
system installations, modifications, alterations, additional sprinkler heads or
other such equipment, become necessary to prevent the imposition of a penalty
or charge against the full allowance for a sprinkler system in the fire
insurance rate set by any said Exchange or by any fire insurance company, Tenant
shall, at Tenant's expense, promptly make such sprinkler system installations,
changes, modifications, alterations, and supply additional sprinkler heads or
other equipment as required whether the work involved shall be structural or
non-structural in nature. Tenant shall pay to Owner as additional rent (2)
of the contract price for sprinkler supervisory service.(3)
ELEVATORS, HEAT, CLEANING:
31. As long as Tenant is not in default under any of the covenants of this
lease owner shall: clean the public halls and public portions of the building
which are used in common by all tenants. Tenant shall, at Tenant's expense keep
the demised premises, including the windows, clean and in order, to the
satisfaction of Owner, and for that purpose shall employ the person or persons,
or corporation approved by Owner. Owner reserves the right to stop service of
the heating, plumbing and electric systems, when necessary, by reason of
accident, or emergency, or for repairs, alterations, replacements or
improvements, in the judgement of Owner desirable or necessary to be made, until
said repairs, alterations, replacements or improvements shall have been
completed.
---------------------
Space to be filled in or deleted.
1. Owner's reasonable estimate of Xxxxxx's share
2. 7.26%
3. and alarm service.
9
Security: 32. Tenant has deposited with Owner the sum of
$12,716.67 as security for the faithful performance
and observance by Tenant of the terms, provisions and
conditions of this lease; it is agreed that in the event Tenant defaults in
respect to any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent or any other sum as to
which tenant is in default or for any sum which Owner may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this lease; including but not limited to, any
damages or deficiency in the reletting of the premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Owner. (1) In the event that Tenant shall fully and faithfully comply with all
of the terms, provisions, covenants and conditions of this lease, the security
shall be returned to Tenant after the date fixed as the end of the Lease and
after delivery of entire possession of the demised premises to Owner. In the
event of a sale of the land and building or leasing of the building, of which
the demised premises form a part, Owner shall have the right to transfer the
security to the vendee or lessee and Owner shall thereupon be released by Tenant
from all liability for the return of such security, and Tenant agrees to look to
the new Owner solely for the return of said security, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Owner. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security and that neither Owner nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
Captions: 33. The Captions are inserted only as a matter of
convenience and for reference and in no way decline, limit or describe
the scope of this lease nor the intent of any provision thereof.
Definitions: 34. The term "Owner" as used in this lease means on-
ly the owner of the fee or of the leasehold of the building, or
the mortgagee in possession, for the time being of the land and building
(or the owner of a lease of the building or of the land and building)
of which the demised premises form a part, so that in the event of any sale or
sales of said land and building or of said lease, or in the event of a lease of
said building, or of the land and building, the said Owner shall be and hereby
is entirely freed and relieved of all covenants and obligations of Owner
hereunder, and it shall be deemed and construed without further agreement
between the parties of their successors in interest, or between the parties and
the purchaser, at any such sale, or the said lessee of the building, or of
the land and building, that the purchaser or the lessee of the building has
assumed and agreed to carry out any and all covenants and obligations of Owner
hereunder. The words "re-enter" and "re-entry" as used in this lease are not
restricted to their technical legal meaning. The term "rent" includes the
annual rental rate whether so expressed or expressed in monthly installments,
and "additional rent." "Additional rent" means all sums which shall be due to
new Owner from Tenant under this lease, in addition to the annual rental rate.
The term "business days" as used in this lease, shall exclude Saturdays,
Sundays and all days observed by the State or Federal Government as legal
holidays and those designated as holidays by the applicable building service
union employees service contract or by the applicable Operating Engineers
contract with respect to HVAC service.
Adjacent 35. If an excavation shall be made upon land adjacent
Excavation to the demised premises, or shall be authorized to be
Shoring: made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the
demised premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building of which demised premises form a
part from injury or damage and to support the same by proper foundations
without any claim for damages or indemnity against Owner, or diminution or
abatement of rent.
Rules and 36. (See Article 55)
Regulations:
Glass: 37. Owner shall replace, at the expense of the Tenant,
any and all plate and other glass damaged or broken
from any cause whatsoever in and about the demised premises. Owner may insure,
and keep insured, at Xxxxxx's expense, all plate and other glass in the demised
premises for and in the name of Owner. Hills for the premiums therefor shall
be rendered by Owner to Tenant at such times as Owner may elect, and shall be
due from, and payable by, Tenant when rendered, and the amount thereof shall be
deemed to be, and be paid, as additional rent.
Estoppel 38. Tenant, at any time, and from time to time, upon
Certificate: at least 10 days' prior notice by Owner, shall execute,
acknowledge and deliver to Owner, and/or to any other
person, firm or corporation specified by Owner, a statement certifying that
this Lease is unmodified in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and
stating the modifications), stating the dates in which the rent and additional
rent have been paid, and stating whether or not there exists any default by
Owner under this Lease, and, if so, specifying each such default.(2)
Directory 39. (See Article 51)
Board Listing
Successors 40. The covenants, conditions and agreements con-
and Assigns: tained in this lease shall bind and insure to the benefit of
Owner and Tenant and their respective heirs, distributees,
executors, administrators, successors, and except as otherwise provided in this
lease, their assigns.
---------------------
Space to be filled in or deleted
(SEE ATTACHED RIDER)
1. If Owner so uses, applies or retains any part of the security so deposited,
Tenant, upon demand, shall deposit with Owner the amount so used, applied or
retained, so that Owner shall have the full deposit on hand at all times during
the term of this lease.
2. Within ten (10) days after Xxxxxx's request, Owner shall deliver to Tenant
a statement substantially similar to the statement required to be delivered by
Xxxxxx to Owner hereunder.
In Witness Whereof, Owner and Xxxxxx have respectively signed and
sealed this lease as of this day and year first above written.
[CORPPORATE
Witness for Owner: XXXXXX XXXXXX COMPANY, LLC SEAL]
--------------------------------------
By: [L.S]
---------------------------------- --------------------------------------
President
Witness for Tenant: ADVANCED VIRAL RESEARCH CORPORATION
--------------------------------------
By: /s/ Xxxxxx X. Xxxxxxxxx [L.S]
---------------------------------- --------------------------------------
FEDERAL I.D. #/SOCIAL SECURITY #......
10
The following shall be inserted in the footnoted letters in the printed portion
of this lease:
A. which approval shall not be unreasonably withheld as to non-
structural alterations and as to structural alterations and connection to
Building utilities outside the demised premises which do not: (a)
adversely affect the structural integrity of the Building or any Building
systems or (b)reduce the value of the Building.
B. Notwithstanding anything contained herein to the contrary, Tenant
shall have no obligation to remove the initial installations which constitute
Owner's Work.
c. ,provided that Owner shall use its reasonable efforts to perform such
repairs in a diligent manner and to minimize interference with Xxxxxx's use of
the demised premises in connection therewith.
D. Notwithstanding the provisions of Article 9, if the demised premises
or a major part thereof shall be totally, or substantially, damaged or destroyed
or rendered completely, or substantially, untenantable on account of fire,
casualty or other cause (other than fire, casualty or other cause relating to
Tenant's act or failure to act where it had a duty to act), the rent and
additional rent shall completely xxxxx as of the date of the damage or
destruction and until Owner shall repair, restore, replace and rebuild the
demised premises (subject to Owner's right to elect not to restore the same);
provided, however, that should Tenant reoccupy a portion of the demised premises
for the purpose of conducting business during the period the restoration work is
taking place and prior to the date that the same is made completely tenantable,
rent and additional rent shall be apportioned and payable by Tenant in
proportion to the part of the demised premises occupied by it. Nevertheless, in
case of any substantial damage or destruction to the demised premises, Tenant,
as its sole remedy, may cancel this lease by written notice to Owner, if (i)
within 30 days from the date of the damage or destruction, Owner does not
deliver to Tenant a written certification to the effect that the restoration can
be completed within six months from the date of the casualty; (ii) within 90
days of the date of damage of destruction Owner does not let a contract which
shall provide for the complete restoration of the demised premises within a
period of six (6) months from the date of the damage or destruction; (iii) work
under such contract or contracts has not commenced within 120 days of the date
of said damage or destruction; or (iv) said work is not prosecuted with
reasonable diligence to its completion within six (6) months of the date of
damage or destruction. The period for the completion of the required repairs and
restoration work shall be extended by the number of days lost in the event such
loss results from unavoidable delays, or any cause beyond the reasonable control
of Owner.
E. upon reasonable notice
F. thirty (30)
G. beyond ten (10) days after notice from Owner to Tenant
H. beyond applicable notice and cure period
I. In performing any such work, Owner shall use its reasonable efforts
to act diligently and to minimize interference with Xxxxxx's use of the demised
premises.
J. or Tenant
K. , except for mandatory or compulsory counterclaims.
11
MULTI/MAS 88
Striking out or deletion of any portion of this lease (and the insertion of
asterisks at various points) was done as a matter of convenience in preparing
the lease for execution. The language omitted (as well as the use or placement
of such asterisks) is not to be given any effect in construing this lease.
RULES & REGULATIONS - Exhibit A
WORK SPECIFICATIONS - Exhibit B
FLOOR PLAN - Exhibit C
STANDARD FORM OF RIDER TO STANDARD FORM OF LOFT LEASE
Date of Lease: February 7, 1997
Owner: XXXXXX XXXXXX COMPANY, LLC
Tenant: ADVANCED VIRAL RESEARCH CORPORATION
Building: 000 Xxxxxxxxx Xxxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx
Rentable Area: approximately 6,100 square feet
41. Additional Definitions.
For all purposes of this lease, and all agreements supplemental
hereto, the terms defined in this Article shall have the meanings specified
unless the context otherwise requires:
(a) The term laws and requirements of public authorities shall mean
laws and ordinances of federal, state, city, town, and county governments, and
rules, regulations, orders and directives of departments, subdivisions, bureaus,
agencies or offices thereof, or any other governmental, public or quasi-public
authorities having jurisdiction over the Building, and the directions of any
public officer pursuant to law.
(b) The word invitee shall mean any employee, agent, visitor,
customer, contractor, licensee, or other party claiming under, or in the
Building, or in the Park, if applicable, by permission or sufferance of, Owner
or Tenant.
(c) The term requirements of insurance bodies shall mean rules,
regulations, orders and other requirements of the New York Board of Fire
Underwriters or New York Fire Insurance Rating Organization or any similar body
performing the same or similar functions.
(d) The term unavoidable delays shall mean delays due to strikes or
labor troubles, fire or other casualty, governmental restrictions, enemy action,
civil commotion, war or other emergency, acts of God or nature, or any cause
beyond the reasonable control of either party whether or not similar to any of
the causes stated above, but not the inability of either party to obtain
financing which may be necessary to carry out its obligations.
(e) The term Real Property shall mean the tax lot of which the demised
premises is a part.
(f) The term lease year shall mean the 12 month period commencing with
the Commencement Date (as defined in paragraph (a) of Article 42), and ending
the day preceding the first anniversary of the Commencement Date (except that if
the Commencement Date shall occur on a day other than the first day of a
calendar month, such period shall commence with the Commencement Date and end
with the last day of the 12th full calendar month thereafter) and each 12 month
period thereafter, all of which falls within the term of this lease.
(g) The word rent shall mean the Fixed Annual Rent and such other sums
due Owner pursuant to this lease. All sums due Owner,
- 6 -
12
MULTI/MAS 88
other than Fixed Annual Rent, are included in the term additional rent.
(h) The term Hazardous Materials shall mean (i) any chemical, material
or substance defined as or included in the definitions of "hazardous substance",
"hazardous materials", "extremely hazardous waste", "restricted hazardous
waste", "toxic substance" or words of similar import, under any applicable
local, state or federal laws, including but not limited to the Federal Water
Pollution Act (33 U.S.C. Section 1251 et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801 et.seq:), the Resources Conservation
and Recovery Act (42 U.S.C. 6901 et seq, 42 U.S.C. Section 7401 et. seq:) and
CERCLA (42 U.S.C. 9601 et seq:), all as may be amended from time to time; (ii)
petroleum; (iii) asbestos; (iv) polychlorinated biphenyls; (v) radioactive
materials; and (vi) radon gas.
(i) The term business days as used in this lease shall exclude
Saturdays, Sundays and all days observed by the State or Federal Government as
legal holidays and all days designated as holidays by the applicable building
service union employees service contract.
(j) The term Executive Park or Park shall mean South Westchester
Executive Park, located in the City of Yonkers, County of Westchester and
State of New York.
42. Term; Preparation for Occupancy and Possession.
(a) The term of this lease and the estate hereby granted shall
commence on a date (the "Commencement Date") which shall be the earlier of the
day (i) on which the demised premises shall be deemed to be completed as such
term is defined in paragraph (c) of this Article (of which date Tenant shall be
given 5 days notice), or (ii) Tenant (or anyone claiming under or through
Tenant) shall occupy the demised premises. The term shall expire on the last day
of the month five (5) years after the month in which the Commencement Date
occurs (the "Expiration Date") or on such earlier date upon which said term may
expire or be terminated pursuant to any provision of this lease or law. Promptly
following the determination of the Commencement Date, the parties shall enter
into a supplementary written agreement setting forth the Commencement and
Expiration Dates.
(b) The demised premises shall be completed and initially prepared by
Owner in the manner set forth in, and subject to the provisions of, the attached
Work Specifications and Floor Plan ("Owner's Work"). Tenant and its contractors
shall be entitled to access to the demised premises prior to the completion of
Owner's Work, subject to Owner's prior approval, and only so long as they work
in conformity with and do not interfere, in Owner's judgment, with Owner or its
contractors in the completion of Owner's Work, and provided they accept the
administrative supervision of Owner. If Xxxxxx's work interferes with Xxxxx's
work, in Owner's judgment, Owner. may withdraw the license granted to Tenant
pursuant to this paragraph upon 24 hours notice. Tenant's selection of
contractors must be in compliance with the provisions of this lease. Tenant
shall contribute any amount in excess of Owner's $30,500.00 contribution
("Tenant's Contribution") for the work set forth in the Work Specifications and
on the attached floor plan (the "Work"). Tenant ;shall pay Xxxxxx's
Contribution to Owner upon Xxxxxx's execution and delivery of this lease to
Owner. If Owner's price for the Work is less than $30,500.00, Owner shall
contribute the difference between $30,500.00 and Owner's price for the Work
("Owner's Contribution") toward the cost of Xxxxxx's installation of Xxxxxx's
fixtures in the demised
- 7 -
13
MULTI/MAS 88
premises. Such fixtures shall not include furniture, equipment or artwork, it
being intended that Owner's Contribution shall be applied toward actual physical
improvements to the demised premises. Owner shall pay Tenant Owner's
Contribution promptly after Owner's receipt of paid invoices evidencing Xxxxxx's
cost of the installation of Xxxxxx's fixtures.*
(c) The demised premises shall be deemed completed on the date on
which Owner's Work in the demised premises has been substantially completed
(notwithstanding the fact that minor or insubstantial details of construction,
mechanical adjustment or decoration remain to be performed, the non-completion
of which would not materially interfere with Xxxxxx's use of the demised
premises). If completion of the demised premises by Owner is delayed by reason
of:
(i) any act or omission of Tenant or any of its employees, agents or
contractors, including material failure of Tenant to comply with any of its
obligations under the Work Specifications, or*
(ii) Tenant's failure to plan or execute Xxxxxx's work with
reasonable speed and diligence, or
(iii) Tenant's failure to make selections required by the Work
Specifications, or
(iv) Tenant's changes by Tenant in its drawings or specifications
or changes or substitutions requested by Tenant, or
(v) Tenant's failure to submit or approve drawings, plans or
specifications timely, or
(vi) Tenant's failure to deliver to Owner the first month's rent (if
required by the provisions on the first page of this lease), and the
security deposit required by Article 32 (if any),
then the demised premises shall be deemed completed, the Commencement Date shall
be deemed to have occurred (and Tenant shall commence paying rent) on the date
when it would have been completed and rent would have been due and payable but
for such delay, and Tenant shall pay Owner all costs and damages which Owner may
sustain by reason of such delay.
(d) The Floor Plan attached hereto may be revised by Owner in order to
comply with laws and requirements of public authorities and requirements of
insurance bodies. If any of such revisions or changes are due to Tenant's manner
of use of the demised premises, Tenant shall pay for the cost of implementing
same.*
(e) Owner may close or change the arrangement and/or location of
exits, entrances, passageways, doors, doorways, corridors, elevators, stairs,
toilets and other parts of the Building whenever necessary to comply with laws
or requirements of public authorities and requirements of insurance bodies.
Tenant shall pay the cost thereof where the requirement for such change is due
to Tenant's manner of use of the demised premises.*
43. Rent.
(a) Tenant shall commence paying rent on the second month
anniversary of the Commencement Date. If the Commencement Date is other than
the first day of a calendar month, the first monthly
- 8 -
14
MULTI/MAS 88
installment of Fixed Annual Rent shall be prorated to the end of said calendar
month.*
(b) All rent shall be paid by currently dated, unendorsed check of
Tenant, payable to the order of Owner or to an agent designated by Owner.*
(c) Tenant shall pay the Fixed Annual Rent without notice or demand.
If no date shall be set forth herein for the payment of any other sum due Owner,
then such sum shall be due and payable within 10 business days after the date
upon which Owner makes written demand for such payment.
(d) If at any time during the term the rent, or any part thereof,
shall not be fully collectible by reason of any laws and requirements of public
authorities, Tenant shall enter into such agreements, reasonably satisfactory
to Tenant and take such actions as Owner may reasonably request to permit Owner
to collect the maximum rents which may, during the continuance of such legal
rent restriction, be legally permissible (but not in excess of the amounts
reserved under this lease). Upon termination of such rent restriction prior to
the Expiration Date (i) the rent shall become and thereafter be payable in
accordance with the amounts reserved in this lease for the period of the term
following such termination, and (ii) Tenant shall pay Owner, if legally
permissible, an amount equal to (y) the rent which would have been paid pursuant
to this lease but for such legal rent restriction less (z) the rents paid by
Tenant for the period during which such rent restriction was in effect.
(e) If any installment of Fixed Annual Rent is not paid within 10 days
after the date due, or if any other moneys owing by Tenant are not paid within
15 days of the date due and payable, Tenant shall pay Owner, in compensation for
Owner's loss of use of such rent, the additional administrative, bookkeeping and
collection expenses incurred by reason of such overdue sum, a sum calculated by
multiplying the late payment by three percentage points above the prime rate
then established by Chemical Bank (but limited to the maximum legal rate),
dividing the product by 365 and multiplying the quotient by the number of days
between the date such payment was due and the date such payment is in fact paid.
Such compensation shall be without prejudice to any of Owner's other rights and
remedies hereunder.*
(f) If any check tendered by Tenant, for any payment due, shall be
dishonored by the payor bank, Tenant shall pay Owner, without prejudice to any
of Owner's other rights and remedies, in compensation for the additional
administrative, bookkeeping and collection expenses incurred by reason of such
dishonored check, the sum of $100. If during any twelve month period during the
term of this lease, two or more checks tendered by Tenant, for any payment due,
shall be dishonored by the payor bank, Owner may at any time thereafter require
that all future payments of rent by Tenant shall be made by certified or
official bank checks.
44. Parking.
(a) Throughout the term, Owner shall make available to Tenant the
following number of parking spaces:*
five (5) spaces for executive cars, which shall be reasonably close to
the front entrance to the demised premises on an exclusive basis.*
ten (10) spaces for employee cars, which shall be not more than 500
yards from an entrance to the demised premises, unless
- 9 -
15
MULTI/MAS 88
otherwise provided for herein on a non-exclusive basis.*
If Tenant or its invitees use more than the specified number of spaces
set forth above, then after 5 days notice from Owner, Tenant shall, at the
option of Owner, either (i) pay Owner's then current charge per month for each
additional space used for each month during which such excess use takes place
(even if for less than the full month) (as of the date of this lease, Owner's
current monthly charge is $40.00 per space), or (ii) cease and desist
immediately from using said additional spaces. If Owner selects the first of
such options, Owner may revoke such choice on 30 days notice.
(b) As necessary, Owner shall (between 7:00 a.m. and 10:00 p.m. on
business days), light, clean, remove snow from and otherwise maintain, the
parking area. Tenant shall be responsible for repairing damage to the parking
areas caused by Tenant or its invitees. Owner shall not be obligated to remove
snow unless the accumulation exceeds 3 inches. In no event shall Owner be
obligated to remove snow from areas obstructed by parked vehicles at the time
Owner's equipment is servicing such areas. Notwithstanding anything herein to
the contrary, Tenant shall be responsible for lighting its entrances to the
demised premises and loading areas and for removing snow and ice at its
entrances and other walkways and areas reserved or designated for Tenant's
exclusive use.
(c) Tenant shall require its invitees to park only in areas designated
by Owner, and not to obstruct the parking areas of other tenants. Tenant shall,
upon request, furnish to Owner the license numbers of the automobiles operated
by Tenant, its executives and other employees. Owner may use any lawful means
to enforce the parking regulations established pursuant to Article 55,
including, but not limited to, the towing away of improperly parked or
unauthorized cars and pasting of warning notices on car windows and windshields.
(d) Owner may temporarily close any area not leased to Tenant in order
to make repairs or changes, to prevent the acquisition of public rights, or to
discourage unauthorized parking. Owner may do such other acts in and to such
areas as, in its judgment, may be desirable to improve same.
(e) The parking areas for trucks and delivery vehicles in front of
loading docks or loading areas (if any) adjacent to the demised premises are not
to be used by Tenant or its invitees, as parking spaces, unless otherwise
directed by Owner. Such loading docks or loading areas are provided solely for
the loading and unloading of Tenant's goods and no vehicles may be parked in
such areas longer than necessary, in Owner's reasonable judgment, for the
efficient discharge of such purposes. If the use of any loading dock at the
Building interferes with the use of another loading dock, the tenant occupying
more rentable area in the Building shall have priority in use of the loading
docks. In no event shall access to any loading dock be blocked for more than 15
minutes.
(f) Neither Tenant nor its invitees shall park automobiles, trucks or
other motor vehicles overnight within the park.
45. Tax Escalation.
(i) Definitions. As used in this lease:
(a) "Taxes" shall mean the total amount of real estate taxes and
assessments now or hereafter levied, imposed,
- 10 -
16
MULTI/MAS 88
confirmed or assessed against the Real Property, (or, during any period the
Real Property is owned by an industrial development agency, such as would
be levied, imposed, confirmed or assessed as if Owner named herein were the
fee owner), including but not limited to city, county, town, village,
school and transit taxes, water fees and sewer and refuse disposal charges,
or taxes, assessments or charges levied, imposed, confirmed or assessed
against, or a lien on, the Real Property by any taxing authority, whether
general or specific, ordinary or extraordinary, foreseen or unforeseen and
whether for public betterments, improvements or otherwise. If, due to any
change in the method of taxation, any franchise, capital stock, capital,
income, profit, sales, rental, use or occupancy tax or charge shall be
levied, assessed, confirmed or imposed upon Owner in lieu of, or in
addition to, any real estate taxes or assessments upon or .with respect to
the Real Property, such tax shall be included in the term Taxes. Penalties
and interest on Taxes (except to the extent imposed upon timely payments of
assessments that may be, and are in fact, paid in installments) and income,
franchise, transfer, inheritance and capital stock taxes shall be deemed
excluded from Taxes except to the extent provided in the immediately
preceding sentence.
(b) "Base Tax" is the product of the tax rates set forth on tax bills
rendered for each Tax for the Tax Year during which January 1, 1997 occurs,
multiplied by the assessed valuations of the Real Property for the Tax Year
during which January 1, 1997 occurs. "Tax Year" shall mean the fiscal period for
each Tax. Any and all tax abatements shall be for the benefit of Owner.*
(c) "Tenant's Proportionate Share" shall mean 7.26%*
(ii) Tax Payments. (a) If Taxes for any Tax Year during the lease term
("Tax Comparison Year") shall exceed the Base Tax, Tenant shall pay Owner, as
additional rent for each such Tax Comparison Year, Tenant's Proportionate Share
of such excess ("Tax Payment").
(b) Subsequent to Owner's receipt of the tax bills for each Tax
Comparison Year, Owner shall submit to Tenant a statement showing (i) the
Tax Payments due for such Tax Comparison Year, and (ii) the basis of
calculations ("Owner's Tax Statement"). Tenant shall (y) pay Owner the unpaid
portion (if any) of the Tax Payment within 30 days after receipt of Owner's Tax
Statement, and (z) on account of the immediately following Tax Comparison Year,
pay Owner commencing as of the first day of the month during which Owner's Tax
Statement is rendered, and on the first day of each month thereafter until a new
Owner's Tax Statement is rendered, 1/12th of the total payment for the current
Tax Comparison Year. The monthly payments based- on the total payment for the
current Tax Comparison Year shall be adjusted from time to time to reflect
Owner's reasonable estimate of increases in taxes for the immediately following
Tax Comparison Year.
(iii) Reduction of Comparison Year Taxes. If Taxes for a Tax Comparison
Year are reduced, the amount of Owner's costs and expenses of obtaining such
reduction (including reasonable legal, appraisers' and consultants' fees) shall
be added to and deemed part of Taxes for such Tax Comparison Year. If Owner
obtains a refund of Taxes for a Tax Comparison Year for which a Tax Payment has
been made, Owner shall credit against Xxxxxx's next succeeding Tax Payment(s),
Xxxxxx's Proportionate Share of the refund (but not more than the Tax Payment
that was the subject of the refund). If no Tax Payment shall thereafter be due,
Owner shall pay Tenant's Proportionate Share of such refund to Tenant.*
- 11 -
17
MULTI/MAS 88
(iv) Reduction of Base Tax. If Owner obtains a reduction in the Base
Tax, the Base Tax shall be reduced (such reduction to include the expenses
incurred by Owner in obtaining such reduction, including reasonable legal,
appraisers' and consultants' fees), prior Tax Payments (if any) shall be
recalculated and Tenant shall pay Owner, within 30 days after billing, Tenant's
Proportionate Share of the increased amount of Tax Payment for each prior Tax
Comparison Year.*
(v) Tax Protests. While proceedings for reduction in assessed
valuations are pending, the computation and payment of Tax Payments shall be
based upon the original assessments for the years in question. Tenant shall have
no right to institute or participate in any tax proceedings or other proceedings
of a similar nature. The commencement, maintenance, settlement and conduct
thereof shall be in the sole discretion of Owner.
(vi) Assessment With Other Properties. If, at any time, the Real
Property shall include buildings other than the Building, the Taxes shall
include the Building's equitable portion of the Taxes on all such buildings,
based upon an informal apportionment by the tax assessors, or if such
apportionment is not available, as shall be reasonably determined by Owner.
(vii) Tenant's Improvements. In the event an increase in assessed
valuation of the Real Property is caused by Xxxxxx's improvements to the demised
premises, not including the work set forth in the Work Specifications, Tenant
shall pay the entire increase in Taxes attributable to such improvements. If the
assessed valuation for such improvements are not separately stated, Xxxxxx's
obligation under this subparagraph shall be reasonably determined by Owner.
(viii) No Credit. If in a Tax Comparison Year the Taxes are less than the
Base Tax, the Tenant shall not be entitled to receive a credit, by way of a
reduction in Fixed Annual Rent, a refund of all or a portion of prior (or a
credit against future) Tax Payments or otherwise.
(ix) Partial Comparison Year. If the Expiration Date or earlier date
upon which the term may expire or terminate shall be a date other than the last
day of a Tax Comparison Year, Tenant's Tax Payment for such partial Tax
Comparison Year shall be prorated, (based upon Owner's reasonable estimate of
the tax payments for such Tax Comparison Year if same have not been established
as of such date).
46. Common Area Maintenance Charge.
(i) For the purposes of this Article:
(a) "Index" shall mean the Revised Consumer Price Index
for Urban Wage Earners and Clerical Workers for the New York -
Northeastern New Jersey Area, 1967 = 100, published by the United States
Department of Labor, Bureau of Labor Statistics.
(b) "Base Index" shall mean the Index for the first full
calendar month preceding the date of execution of this lease.
(ii) There is included in the Fixed Annual Rent an amount equal to $1.50
per square foot to cover the initial cost to Owner of the expenses of common
area maintenance.
(iii) In the manner and at the times hereinafter set forth, Tenant shall
pay Owner as additional rent, for each lease
- 12 -
18
MULTI/MAS 88
year, for common area maintenance, a sum computed by multiplying $1.50 per
square foot (i.e.$9,150.00) by the percentage increase, if any, by which the
Index for the month preceding the last month of such lease year exceeds the Base
Index. In no event shall any such adjustment result in a decrease of the Fixed
Annual Rent as set forth on page 1 of this lease. ~
(iv) Within 135 days after the end of each lease year, Owner
shall deliver to Tenant a statement setting forth the amount (and supporting
calculations) of additional rent due to Owner for such prior lease year in
accordance with the provisions of clause (iii) above ("Owner's Statement").
Tenant shall (x) make payment of any unpaid portion of such additional rent
within 30 days after receipt of Owner's Statement, and (y) pay to Owner on
account of the then current lease year, within 30 days after receipt of Owner's
Statement, an amount equal to the product obtained by multiplying the total
payment required for the preceding lease year by a fraction, the denominator of
which shall be 12 and the numerator of which shall be the number of months of
the current lease year which shall have elapsed prior to the first day of the
month immediately following the rendition of Owner's Statement, and (z) pay
Owner on account of the then current lease year, commencing as of the first day
of the month immediately following the rendition of Owner's Statement and on the
first day of each month thereafter until a new Owner's Statement is rendered,
1/12 of the total payment for the preceding lease year. The monthly payments
based on the total payment for the preceding lease year shall be adjusted from
time to time during a lease year to reflect Owner's reasonable estimate of
increases in the Index. The payments required to be made under clauses (y) and
(z) above shall be subject to adjustment as and when Owner's Statement for such
lease year is rendered by Owner. If the payments required to be made under
clauses (y) and (z) above exceed the amount due for such lease year pursuant to
Owner's Statement, such excess shall be credited against the next required
payments due hereunder. If no such payments shall thereafter be due, Owner shall
pay such excess to Tenant.
(v) If any lease year shall be a period of less than 12 months,
Xxxxxx's liability under this Article shall be prorated.
(vi) If the Index is altered, modified, converted or revised
such that it is no longer comparable to the Base Index then the Index shall be
adjusted to the figure that would have been arrived at had the change in the
manner of computing the Index not been altered. If such Index shall no longer be
published, then any substitute or successor index published by the Bureau of
Labor Statistics or other governmental agency of the United States, and
similarly adjusted as aforesaid, shall be used. If such Index (or a successor or
substitute index similarly adjusted) is not available, a reliable governmental
or other reputable publication selected by Owner shall be used.
47. Cleaning; Trash Removal.
(a) Tenant shall, at Tenant's expense, keep the demised Premises clean
and in good order. to the satisfaction of Owner. Tenant shall, at Xxxxxx's
expense, hire a reputable cleaning contractor to clean the office portion of the
demised premises, if any.
(b) Tenant shall pay the cost of removal of Xxxxxx's refuse and
rubbish from the Building. Tenant shall contract for the removal of such refuse
and rubbish. Owner reserves the right to select a refuse disposal contractor to
serve the Building. The
- 13 -
19
MULTI/MAS 88
financing, Tenant will not withhold, delay or defer its consent thereto,
provided that such modifications neither increase the monetary obligations,
materially increase the nonmonetary obligations of Tenant nor decrease the size
of the demised premises, the number of parking spaces provided for in Article 44
or the service required to be provided by Owner or Tenant's rights hereunder.*
(b) Tenant shall, within a reasonable time after being requested,
submit such financial information as may be reasonably required by Owner's
mortgagee(s).
50. Broker.
Tenant represents that, in the negotiation of this lease, it dealt
with no broker or any other person legally entitled to claim a brokerage
commission or finder's or consultant's fee with respect to this transaction.
Tenant shall indemnify, defend and hold Owner harmless from and against all
losses, costs, damages, expenses, claims and liabilities (including court costs
and attorneys' fees and disbursements) arising out of any inaccuracy or alleged
inaccuracy of this representation.
51. Signs.
(a) Owner shall, upon Xxxxxx's request, list on the Building's
directory ("Directory"), if any, the name of Tenant.
(b) No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by or in behalf of Tenant on any part
of the outside of the demised premises or the Building or on the inside of the
demised premises if the same is visible from the outside of the demised
premises, without the prior written consent of Owner, which consent shall not be
unreasonably withheld. Requests for such signs shall be accompanied by a sketch
of the sign, its size, type and manner of mounting, specifying the manner of
mounting, and the materials and finishes employed in the manufacture of same.
Approval by Owner shall not constitute approval for purposes of complying with
laws and requirements of public authorities. It shall be Tenant's obligation to
secure such approvals at Tenant's expense. In the event of the installation of
any sign by Tenant in violation of the foregoing, Owner may remove same without
liability and may charge the expense incurred by such removal to Tenant.*
(c) Owner shall have the right, from time to time, to designate a name
for the Building and to change the name and/or address of the Building.
52. Holdover.
Xxxxxx acknowledges that possession of the demised premises must be
surrendered at the expiration or sooner termination of the term, time being of
the essence. The parties agree that the damage to Owner resulting from failure
by Xxxxxx to surrender possession of the demised premises timely will be
extremely substantial, will exceed the amount of rent payable hereunder and will
be impossible of accurate measurement. Consequently, Tenant shall pay Owner for
each month and for any portion of a month during which Tenant holds over in the
demised premises after expiration or sooner termination of the term of this
lease, a sum equal to 150% of the rent which was payable under this lease during
the last month of the term. Nothing contained herein shall be deemed to
authorize Tenant to remain in occupancy of the demised premises after the
- 15 -
20
MULTI/MAS 88
expiration or sooner termination of the term.*
53. Insurance and Indemnity.
(a) Tenant shall provide, prior to entry upon the demised premises,
and maintain throughout the term of this lease, at its own cost, and with
companies rated not less than B+ Class IX by A.M. Best Company, Inc., or its
successor and authorized to do business in the State of New York (i) public
liability and property damage insurance in an amount not less than $2,000,000
combined single limit for personal injury, death and property damage arising out
of any one occurrence, protecting Owner and Tenant against all claims for
personal injury, death or property damage occurring in, upon or adjacent to the
demised premises and any part thereof, or arising from, related to, or in any
way connected with the conduct and operation of Tenant's use or occupancy of the
demised premises, which insurance shall be written on an occurrence basis and
name Owner (and at Owner's request, Owner's mortgagees) as additional insureds,
and (ii) workers' compensation insurance covering all persons employed by Tenant
or its contractors in connection with work performed by or for Tenant. Tenant's
insurance shall be in a form reasonably satisfactory to Owner and provide that
it shall not be cancelled, terminated or changed except after 20 days' written
notice to Owner. All such policies or certificates (with evidence of payment of
the premium) shall be deposited with Owner not less than 30 days prior to the
day such insurance is required to be in force and upon renewals not less than 30
days prior to the expiration of the term of coverage. Owner shall have the right
from time to time during the term, on not less than 30 days notice, but not more
than once every two years, to require that Tenant increase the amount and/or
types of coverage required to be maintained under this Article to the amounts
and/or types generally required of tenants in comparable buildings in
Westchester County. The minimum limits of liability insurance required pursuant
to clause (i) shall in no way limit or diminish Tenant's liability under
paragraph (d) of this Article.*
(b) Tenant shall not commit or permit anything to be done in, to or
about the demised premises, the Building, the Real Property, the Park, if
applicable, or any adjacent property, contrary to law, or which will invalidate
or be in conflict with the insurance policies carried by Owner or by others for
Owner's benefit, or do or permit anything to be done, or keep, or permit
anything to be kept, in the demised premises, which (i) could result in
termination of any of such policies, (ii) could adversely affect Owner's right
of recovery under any such policies, (iii) could subject Owner to any liability
or responsibility to any person, or (iv) would result in reputable and
independent insurance companies refusing to insure the Building or property of
Owner therein or in the Park, if applicable, in amounts satisfactory to its
mortgagees. If any such action by Xxxxxx, or any failure by Tenant to comply
with the requirements of insurance bodies or to perform Tenant's obligations
hereunder, or any use of the demised premises by Tenant shall result in the
cancellation of any such insurance or an increase in the rate of premiums
payable with respect to such policies, provided that proof reasonably
satisfactory to Tenant that Tenant caused such increase shall be delivered to
Tenant, Tenant shall indemnify, defend and hold Owner harmless against all
losses, including but not limited to any loss which would have been covered by
such insurance and the resulting additional premiums paid by Owner. Tenant shall
make such reimbursement within 30 days after receipt of notice and evidence from
Owner that such additional premiums have been paid, without limiting Owner's
rights otherwise provided in this lease.
- 16 -
21
MULTI/MAS 88
(c) Tenant shall procure a clause in, or endorsement on, each of its
policies for fire or extended coverage insurance covering the demised premises
or personal property, fixtures or equipment located therein, pursuant to which
the insurance company waives subrogation or consents to a waiver of right of
recovery against Owner. Xxxxxx agrees not to make claims against, or seek to
recover from, Owner for loss or damage to its property or property of others
covered by such insurance. To the extent Tenant shall be a self-insurer, Tenant
waives the right of recovery, if any, against Owner, its agents and employees,
for loss, damages or destruction of Tenant's property.
(d) Tenant shall defend, indemnify and save harmless Owner, its agents
and employees from and against any and all liabilities, obligations, damages,
penalties, claims, costs, charges and expenses, including reasonable attorneys'
fees, which may be imposed or incurred by or asserted against Owner and/or its
agents or employees by reason of any of the following occurring during the term,
or during any time prior to the Commencement Date that Tenant has access to or
possession of any part of the demised premises: (i) any work or thing done in,
ON OR ABOUT THE DEMISED premises by or at the instance of Tenant, or its
invitees, (ii) any negligence or wrongful act or omission on the part of Tenant
or its invitees, (iii) any accident, injury or damage to any person or property
occurring in, on or about the demised premises, or vault, passageway or space
adjacent thereto caused by the negligence of Tenant or its invitees, and (iv)
any failure by Tenant to perform or comply with any of the COVENANTS, AGREEMENT,
terms, provisions, conditions or limitations in this lease to be performed or
complied with by Xxxxxx. If any action or proceeding is brought against Owner by
reason of any such claim, Tenant shall, upon the request of Owner and at
Tenant's expense, resist or defend such action or proceeding by counsel
reasonably acceptable to Owner. Counsel selected by Tenant's approved insurance
companies shall be deemed acceptable.
54. Exculpation.
Tenant shall look solely to the estate and interest of Owner, its
successors and assigns, in the Building for the collection of any judgment (or
other judicial process) recovered against Owner and based upon breach by Owner
of any of the terms, conditions or covenants of this lease on the part of Owner
to be performed. No other property or assets of Owner shall be subject to levy,
execution or other enforcement procedures for the satisfaction of Xxxxxx's
remedies under or with respect to either this lease, the relationship of
landlord and tenant hereunder, or Xxxxxx's use and occupancy of the demised
premises.
55. Rules and Regulations.
Tenant and Xxxxxx's invitees shall observe and comply with the Rules
and Regulations attached as Exhibit A, and such additional Rules and Regulations
as Owner or Owner's agents may from time to time adopt. Notice of additional
Rules and Regulations shall be given to Tenant. Owner shall have no duty or
obligation to enforce the Rules and Regulations or the terms, covenants or
conditions in any other lease, against any other tenant of the Building or in
the Park, if applicable, and Owner shall not be liable to Tenant for violation
of the same by any other tenant or its invitees. In the event of a conflict
between the Rules and Regulations and the provisions of the lease, the
provisions of the lease shall prevail. Notwithstanding the foregoing, Owner
shall not enforce the Rules and Regulations
- 17 -
22
MULTI/MAS 88
against Tenant in a discriminatory manner.*
56. Tenant's Alterations and Maintenance.
(a) Tenant shall not employ contractors in connection with any
services, provisions, alterations or maintenance, unless Owner has consented in
writing to the contractor, it being the intention of Owner to limit the number
of such contractors employed in the Building or Park, if applicable. If such
consent has not been obtained Tenant shall, if requested by Owner, forthwith
cancel such contract. Owner's disapproval of any contractor selected by Tenant
must be accompanied by the designation of one or more contractors acceptable to
Owner, whose prices must be reasonably competitive. If Owner does not approve or
disapprove Tenant's contractor within 7 business days after receipt of written
request therefor, the contractor so selected by Tenant shall be deemed approved
by Owner. Tenant shall not employ persons in connection with any such services,
provisions, alterations or maintenance the employment of whom would cause a
strike, work stoppage or slowdown by employees of contractors of Owner in the
Building or Park, if applicable. Owner does not consent to the reservation of
title by any conditional vendor, or the retention of a security interest by a
secured party, to any property which may be affixed to the realty.
(b) Alterations performed by Tenant in accordance with the provisions
of Article 3 must be performed in a good and workmanlike manner, in accordance
with the plans and specifications prepared by Tenant, at its expense, which
plans and specifications shall be subject to Owner's approval (which approval
shall not be unreasonably withheld) prior to the performance of any such
alteration. If Owner does not approve or disapprove such plans and
specifications within 15 business days after Tenant shall have submitted five
sets thereof to Owner, Owner shall be deemed to have approved same. The quality
standards applicable to such alterations shall in no event be less than Owner's
standards for the Building at the time such work is performed. Upon completion
of the alterations Tenant shall, at its expense, deliver to Owner five sets of
"as-built" drawings with respect thereto.*
(c) If due to Tenant's alterations, changes in the Building's
sprinklers, passages, exits or other common areas or systems, are required,
Tenant shall perform same, pursuant to the provisions of this lease. In no
event, however, shall Tenant perform any work or cause any work to be done which
shall, in Owner's opinion, adversely affect the Building. In no event shall
Tenant make any installation on or through the roof of the Building without the
prior consent of Owner. Owner may, at its sole discretion, make such rules and
regulations as it deems necessary regarding access to or through the roof. Owner
makes no representation as to the load bearing capacity of the roof.
57. Notice.
(a) At the request of the holder(s) of any mortgage encumbering the
Real Property, Tenant shall serve upon such mortgagee(s) a copy of all notices
given by Xxxxxx to Owner pursuant to paragraph (b) below, such service to be by
registered or certified mail addressed to such mortgagee(s) at the address
provided by such mortgagee(s) to Tenant.
(b) Except for rent bills, any notice, approval, consent, bill,
statement or other communication required or permitted to be given, rendered or
made by either party hereto to the other,
- 18 -
23
MULTI/MAS 88
pursuant to this lease or pursuant to any applicable law or requirement of
public authority (collectively, "notices"), shall be in writing and shall be
delivered personally or by registered or certified mail, addressed to the other
party at the address hereinabove set forth. All notices given by either party
pursuant to this Article may be given by such party, their agents or attorneys.
Either party may, by notice as aforesaid, designate a different address or
addresses for notices intended for it. All notices given pursuant to this
Article shall be deemed given on the second business day after posting if mailed
in Westchester County, and on the third business day after posting if mailed
outside of Westchester County, or upon delivery if made personally. On and after
the Commencement Date notices directed to Tenant shall be addressed to Tenant at
the Building, with a copy to Lowenthal, Landau, Xxxxxxx & Bring, P.C., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxxx X. Xxxxxxx, Esq.*
58. Miscellaneous.
(a) Whenever it is provided that Owner shall not unreasonably withhold
or delay consent or approval or shall exercise its judgment reasonably (such
consent or approval and such exercise of judgment being collectively referred to
as "consent"), if Owner shall delay or refuse such consent, unless such delay or
refusal is in bad faith, Tenant shall not be entitled to make any claim, and
Tenant waives any claim for money damages (nor shall Tenant claim any money
damage by way of setoff, counterclaim or defense) based upon any claim or
assertion that Owner unreasonably withheld or delayed consent. Tenant's sole
remedy shall be an action or proceeding for specific performance, injunction or
declaratory judgment to enforce any such provision, but any such equitable
remedy which can be cured by the expenditure of money may be enforced personally
against Owner only to the extent of interest in the Building. Failure on the
part of Tenant to seek relief within 30 days after the date upon which Owner has
withheld its consent shall be deemed a waiver of any right to dispute the
reasonableness of such withholding of consent.*
(b) Except as otherwise set forth in this lease, except Owner shall
have no liability or responsibility if any service or utility required to be
provided by Owner is interrupted or stopped by reason of unavoidable delays.*
(c) If Tenant shall request the consent or approval of Owner to the
making of any alterations or to any OTHER THING, AND Owner shall seek and pay a
separate fee for the opinion of Owner's counsel, architect, engineer or other
representative or agent as to the form or substance thereof, Tenant shall pay
Owner, as additional rent, within 30 days after demand, all reasonable costs and
expenses of Owner incurred in connection therewith, including, in case of any
alterations, costs and expenses of Owner in reviewing plans and specifications.
(d) This lease is submitted to Tenant for signature with the
understanding that it shall not bind Owner unless and until it has been executed
by Owner and delivered to Tenant or Tenant's attorney.
(e) Whenever reference is made to public halls, elevators, corridors,
etc. and if none such are present on or about the premises demised herein then
such reference shall have no relevance to the terms herein.
(f) In the event of any conflict between the printed provisions of the
lease and the Rider to the lease, the provisions
- 19 -
24
MULTI/MAS 88
of this Rider shall prevail.
(g) Owner's failure to prepare and/or deliver any statement or bill
required to be delivered to Tenant, or Owner's failure to make demand for
payment of Fixed Annual Rent or additional rent shall not be a waiver of, or
cause Owner to forfeit or surrender its rights to collect, any rent due.
Tenant's liability for all such payments shall continue unabated during the term
and shall survive the expiration or sooner termination of the term.
(h) Tenant shall repair and replace, as necessary, and maintain in
good working order, Tenant's exclusive heating and air conditioning units and
systems servicing the demised premises. Such maintenance shall include changing
the systems filters not less frequently than four times per year. Tenant shall
enter into contracts for service and maintenance pursuant to Article 56 and
submit to Owner copies of such agreements as well as copies of all invoices
indicating dates of service and work performed.
(i) Tenant shall not substantially vacate the demised premises during
the term of this lease unless it shall give Owner at least 10 days written
notice prior to such vacating. Notwithstanding the above, in the event Tenant
vacates the demised premises prior to the Expiration Date or such earlier date
upon which said term may expire or be terminated, Tenant shall remove all
fixtures, and installations (including but not limited to telephone systems,
communication systems and security systems), unless Owner has otherwise notified
Tenant pursuant to Article 3.
After such vacating, Owner may, but shall not be obligated to,
enter the demised premises, at anytime, to make such repairs, replacements and
improvements as Owner may deem necessary. Notwithstanding the foregoing,
Tenant's obligations under this lease shall remain in full force and effect,
including the obligation to maintain and secure the demised premises.
(j) The Certificate of Occupancy for the Building shall be for a
building of Low Hazard Occupancy as defined by the New York State Building Code.
Owner represents that Xxxxxx's use of the demised premises as set forth in
Article 2 shall be permitted by the Certificate of Occupancy covering the
demised premises as of the Commencement Date.*
(k) Tenant shall not cause (or allow any of its contractors, agents
or other persons or entities over whom or which it exercises any degree of
control to cause) to occur within the demised premises, or the Building or Park,
if applicable, the use, presence, discharge, spillage, disposal, uncontrolled
loss, generation, seepage or filtration of Hazardous Materials. Notwithstanding
the foregoing, Tenant shall be entitled to use and store only those Hazardous
Materials which are necessary for the conduct of Tenant's business, provided
that such usage is in accordance with all laws and requirements of public
authorities and requirements of insurance bodies. Tenant shall, from time to
time and upon Owner's request, submit to Owner a written report with respect to
Hazardous Materials upon the demised premises (and within the Building and
Executive Park) as a result of the activities of Tenant (its contractors, agents
or other persons or entities over whom it exercises any degree of control). Such
report shall be in such form as may be prescribed by Owner and shall be
submitted to Owner within ten (10) days after request by Owner (or immediately
upon receipt of any notice of violation received from any governmental agency).
Owner shall have the right at all times ;during the term of this lease to (i)
inspect the demised premises, subject to the provisions of Article 13 and (ii)
conduct (or cause to be conducted) tests and investigations to determine whether
Tenant is in compliance with the provisions of this Section. The reasonable cost
of all such inspections,
- 20 -
25
MULTI/MAS 88
tests and investigations shall be borne by Tenant. Owner's consent to Xxxxxx's
use or maintenance of Hazardous Materials within the demised premises shall in
no way limit Tenant's indemnification obligations as otherwise set forth in this
lease.*
If Xxxxxx obtains knowledge of the actual or suspected release
of Hazardous Materials, then Tenant shall promptly notify Owner of such actual
or suspected release. Tenant shall immediately notify Owner of any inquiry,
test, investigation or enforcement proceeding by or against Tenant involving a
release of which Xxxxxx has notice. If Tenant or its agents, employees or
contractors shall cause or permit a release, Tenant shall promptly notify Owner
of such release and immediately begin investigation and remediation of such
release, as required by all applicable laws and requirements of public
authorities and insurance bodies.*
(l) Anything herein to the contrary notwithstanding, if the first
month's rent or the security deposit shall not have been delivered to Owner upon
execution and delivery of this lease by Tenant to Owner (if required by the
provisions of this lease), then (in addition to such other remedies available to
Owner hereunder, at law or in equity) Owner shall not be obligated to commence
preparation of the demised premises for occupancy (if required by the provisions
of this lease) until such sums shall have been delivered to Owner.
(m) Xxxxxx agrees not to disclose the terms, covenants, conditions or
other facts with respect to this lease, including, but not limited to, the Fixed
Annual Rent, to any person, corporation, partnership, association, newspaper,
periodical or other entity. This non-disclosure and confidentiality agreement
shall be binding upon Tenant without limitation as to time, and a breach of this
paragraph shall constitute a material breach under this lease.
(n) Tenant shall have 24 hours per day, seven days per week access to
the demised premises, except in the case of an emergency.*
59. Amendments to Printed Form.
(a) Article 6 is further amended by adding the following at the end
thereof:
In the event of any increase in the fire insurance rate on the
Building and/or its contents during the TERM OF THIS LEASE, caused by the nature
or conduct of Tenant's use of the demised premises, Tenant shall pay to Owner,
the amount of the increase in the cost of such insurance to Owner and other
tenants of the Building, within ten (10) days after Owner has submitted to
Tenant a statement setting forth the amount due. In determining whether Tenant's
use or occupancy has resulted in an increase in the rate of fire insurance
applicable to the Building or any property located therein, the basis of
comparison shall be the rate which would be in effect were the Tenant not using
the demised premises in such a manner.*
Tenant, at Tenant's sole cost and expense, shall provide, keep and
maintain fir extinguishers and any other nonstructural fire safety equipment
required by laws and requirements of public authorities. At the expiration or
earlier termination of the term of this lease, Tenant may remove from the
demised premises any fire extinguishers provided by Xxxxxx.
(b) Article 7 is amended by adding the following paragraph:
- 21 -
26
MULTI/MAS 88
Notwithstanding anything contained herein to the contrary, and
at the election of the holder of any current or future mortgage encumbering all
or a portion of the demised premises, such mortgage shall be subordinate to this
lease with the same force and effect as if this lease had been executed,
delivered and recorded prior to the execution, delivery and recording of the
said mortgage, except however that the said subordination of the mortgage to the
lease shall not affect nor be applicable to and does expressly exclude:
(i) The prior right, claim or lien of the said mortgagee in, to and
upon any award or other compensation heretofore or hereafter to be made for any
taking by eminent domain of any part of the mortgaged premises, and to the right
of disposition thereof in accordance with the provisions of the said mortgage;
(ii) The prior right, claim and lien of the said mortgagee in, to and
upon any proceeds payable under all policies of fire and rent insurance upon the
said mortgaged premises and as to the right of disposition thereof in
(iii) accordance with the terms of the said mortgage; and
(iii) Any lien, right, power or interest, if any, which may have
arisen or intervened in the period between the recording of the said mortgage
and the execution of this lease, or any lien or judgment which may arise at any
time under the terms of this lease.
Although this clause shall be self-operative upon the election of any
such mortgagee, in confirmation hereof, Tenant shall execute promptly any
certificate that Owner or such mortgagee may request.
Owner shall use its reasonable efforts to obtain for Tenant's benefit a
non-disturbance agreement from the holder of any mortgage or ground or
underlying lease which is superior to this lease, in the form then customarily
used by the grantor of said agreement, providing in substance that so long as
Tenant is not in default under this lease beyond any applicable grace period,
then the grantor will not terminate this lease or take any action to recover
possession of the demised premises, notwithstanding any foreclosure of the
mortgage or default under, or terminate of, the ground or underlying lease. Any
fees or costs imposed by the grantor or its attorney, shall be paid by Xxxxxx.*
(c) Article 11 is amended by adding the following paragraph:
(1) Notwithstanding the foregoing provision of this Article,
Tenant may sublet all of the demised premises, but not less than all, to one
subtenant, for occupancy and use as permitted by Article 2, provided however,
that Tenant shall first obtain the consent of Owner, which consent shall not be
unreasonably withheld or delayed. The consent by Owner to such subletting shall
not in any way be considered to relieve Tenant from obtaining the express
consent of Owner to any further subletting.*
(2) If Tenant shall have a bona fide intention to sublet the
demised premises, as stated above, it shall first notify Owner of such fact and
of the terms of Tenant's proposed subrental and other terms of subletting, and:
(i) If Tenant intends to sublet the demised premises, then
and in such event Owner shall have the option,
- 22 -
27
MULTI/MAS 88
exercisable by notice within 30 days after the date of Xxxxxx's notice, to
elect to cancel this lease, effective as of 6 months from the last day of
the month in which Owner shall have given such notice. Upon any such
cancellation of this lease by Owner, Tenant shall have no further
obligations to Owner with respect to this lease except for obligations
accrued up to the date of cancellation.
(ii) If Owner shall not have elected to cancel as
aforedescribed, and if within a period of 6 months from the date of
Tenant's notice, Xxxxxx has not requested Owner's consent to a specific
subletting, then the provisions of this Article requiring Tenant to give
notice to Owner of intended subletting, and any Owner's rights to elect,
shall again prevail.
(iii) If Owner shall not exercise the option to cancel this
lease Tenant may actively seek to obtain an appropriate subtenant, and
Tenant shall submit (x) the name and address of such proposed subtenant,
(y) reasonably satisfactory information as to the nature and character of
the business of the proposed subtenant, and as to the proposed nature of
its proposed use of the space, and (z) banking, financial and other
information relating to the proposed subtenant reasonably sufficient to
enable Owner to determine the financial responsibility and character of the
proposed subtenant.
(iv) In determining whether or not to consent to a proposed
subletting, Owner may take into consideration all relevant factors
surrounding the proposed sublease, including the following:
a. The business reputation of the proposed subtenant.
b. The nature of the business and the proposed use of the demised
premises by the proposed subtenant.
c. The financial condition of the proposed subtenant.
d. Restrictions contained in leases of other tenants of the Building
(but said restrictions shall not prohibit the use of the demised
premises specified in Article 2).
(3) If such proposed subletting is effected by Xxxxxx, Tenant shall
pay to Owner a sum equal to 50% of (i) any rent or other considerations paid to
Tenant by any subtenant less expenses of such subleasing (including but not
limited to brokerage commissions and costs of improvements) in excess of the
rent allocable to the demised premises which is then payable by Tenant to Owner
pursuant to the terms hereof, and (ii) any other profit or gain realized by
Tenant from any such subletting. All sums payable hereunder by Xxxxxx shall be
payable to Owner upon receipt thereof by Xxxxxx. Notwithstanding the foregoing,
at the option of the holder of any mortgage encumbering the Building, this
Section shall be inapplicable during any period that such holder is Owner
hereunder.
(4) Tenant shall not advertise its space for subletting at a rental
rate lower than the greater of the then comparable rental rate for such space in
the City of Yonkers or the rental rate under this lease for such space. When
Owner or an affiliate of Owner has other equivalent space available for leasing
by Owner or any affiliate of Owner, Tenant shall not sublet
- 23 -
28
MULTI/MAS 88
all or any portion of the demised premises to an occupant of any space in the
Building (or the Park if applicable), or to any party which has negotiated with
Owner or an affiliate of Owner for any space during the 9 months immediately
preceding Tenant's request for Owner's consent.
(5) Tenant may not exercise its rights under this Article
prior to the Commencement Date.
(6) No sublease of the demised premises shall be effective
unless and until Xxxxxx delivers to Owner duplicate originals of the instrument
of sublease (containing the provisions required by Section (7)) and any
accompanying documents. Any such sublease shall be subject and subordinate to
this lease.
(7) All subleases shall (i) be expressly subject to all of
Tenant's obligations hereunder, (ii) provide that the sublease shall not be
assigned, encumbered or otherwise transferred, that the premises thereunder
shall not be further sublet by the sublessee, in whole or in part, and that the
sublease shall neither suffer nor permit any portion of the sublet premises to
be used or occupied by others without the prior consent of Owner in each
instance and (iii) contain substantially the following provision:
"In the event a default under any superior lease of all or
any portion of the premises demised hereby results in the
termination of such superior lease, this lease shall, at the
option of the lessor under any such superior lease, remain in
full force and effect and the tenant hereunder shall attorn
to and recognize such lessor as Owner hereunder and shall
promptly upon such xxxxxx's request, execute and deliver all
instruments necessary or appropriate to confirm such
attornment and recognition. The lessee hereunder hereby
waives all rights under any present or future laws or
otherwise to elect, by reason of the termination of such
superior lease, to terminate this sublease or surrender
possession of the premises demised hereby."
(8) Tenant shall remain fully responsible and liable for all
acts and omissions of any subtenant or anyone claiming under or through any
subtenant which shall be in violation of any of the obligations of Tenant
hereunder and any such violation shall be deemed a violation by Xxxxxx. Tenant
shall pay Owner on demand any reasonable expenses incurred by Owner in acting
upon any request for consent to subletting pursuant to this Article.
(9) Whether or not Owner shall give its consent to any
proposed sublease, Tenant shall indemnify, defend and save harmless Owner
against and from any and all liabilities, obligations, damages, penalties,
claims, costs, charges and expenses (including reasonable attorney's fees)
resulting from any claims that may be made against Owner by the proposed
sublessee, or by any brokers or other persons claiming a commission or similar
compensation in connection with the proposed or final sublease.*
(d) Article 11 is amended by adding the following paragraph:
Anything in this Article or this lease to the contrary
notwithstanding, Owner consents to the assignment of this lease to any entity
controlling, controlled by or under common merged or consolidated, or any person
or entity which is a successor to the business of Tenant, by purchase thereof or
by arrangement effected pursuant to any law or regulatory agency
- 24 -
29
MULTI/MAS 88
action having or asserting such authority (provided such merger, consolidation
or purchase is for a valid business purpose and not principally for the purpose
of transferring the leasehold estate created hereby), and provided that (i) the
successor to Tenant resulting from the merger, consolidation or purchase is a
bona fide entity, (ii) the successor to Tenant has a net worth, computed in
accordance with generally accepted accounting principles, at least equal to the
greater of the net worth of Tenant (1) immediately prior to such merger,
consolidation or purchase or (2) on the date of this lease, and (iii) proof
satisfactory to Owner of such net worth shall have been delivered to Owner at
least 30 days prior to the effective date of the transaction. No such assignment
of this lease shall be valid or binding upon Owner unless the Tenant shall have
complied with the provisions of this Article and the assignee shall execute,
acknowledge and deliver to Owner an agreement, in recordable form, whereby the
assignee agrees unconditionally to be bound by and perform all the obligations
of Tenant hereunder then accrued and thereafter accruing and further expressly
agrees that notwithstanding such assignment the provisions of this Article shall
continue to be binding upon such assignee with respect to all future
assignments. The failure or refusal of the assignee to execute, acknowledge or
deliver such an agreement shall not release the assignee from its liability for
the performance of the obligations of Tenant hereunder assumed by acceptance of
the assignment of this lease. Owner shall have no right to recapture the demised
premises nor be entitled to any profits in connection with an assignment of this
lease in accordance with this paragraph.*
(e) Article 16 is amended by adding the following paragraph:
Without limiting any of the provisions of Articles 16, 17 or
18, if pursuant to the Bankruptcy Code of 1978, as the same may be amended,
Tenant is permitted to assign this lease in disregard of the restrictions
contained in Article 11, Xxxxxx agrees that adequate assurance of future
performance by the assignee permitted under such Code shall mean the deposit of
cash security with Owner in an amount equal to the sum of one year's Fixed
Annual Rent then reserved hereunder plus an amount equal to all additional rent
payable under this lease for the calendar year preceding the year in which such
assignment is intended to become effective. Such deposit shall be held by Owner,
for the balance of the term of this lease, as security for the full and faithful
performance of all of the obligations under this lease on the part of Tenant yet
to be performed, in the manner set forth in Article 32 (notwithstanding the
possible prior deletion of Article 32 from this lease). If Tenant receives or is
to receive any valuable consideration for such an assignment of this lease, such
consideration, after deducting therefrom (i) the brokerage commissions, if any,
and other expenses reasonably incurred by Tenant for such assignment and (ii)
any portion of such consideration reasonably designated by the assignee as paid
for the purchase of Tenant's property in the demised PREMISES, SHALL be the sole
and exclusive property of Owner and shall be paid over to Owner directly by such
assignee.
(f) Article 18 is amended by adding the following paragraph:
In the event of a default by Tenant in its obligations under this lease,
beyond applicable grace periods, if any, in addition to Owner's other rights and
remedies, there shall be immediately payable by Tenant to Owner, as additional
rent, the amount of all of the following which are incurred, granted or assumed
by Owner in connection with the lease: all rent concessions; free rent; rent
credits, contributions or payments by Owner with respect to
- 25 -
30
MULTI/MAS 88
work or improvements performed in the demised premises; and/or obligations
expenses and liabilities of Tenant assumed or paid for by Owner in consideration
of Tenant's entering into this lease.
(g) Article 32 is further amended by adding the following:
"The security deposited hereunder shall be placed in an interest
bearing account. Interest earned by Owner on the security deposit shall be
distributed to Tenant annually provided that Tenant shall not be in default
hereunder. Owner shall retain 1% of the security deposit annually as an
administrative fee."*
60. Construction Guaranty.
Tenant shall deliver to Owner, in consideration for Owner's
contribution toward the work set forth on the Work Specifications and the
attached floor plan and as additional security pursuant to Article 32, the sum
of $30,500.00.
Provided that (1) this lease is full force and effect on the 30th month
anniversary of the Commencement Date and Tenant is not in default hereunder and
(2) Tenant has a net worth of at least $4,000,000 on such 30th month anniversary
of the Commencement Date, Owner shall return to Tenant the $30,500.00 upon the
30th month anniversary of the Commencement Date. Prior to Owner's obligation to
return such sum, Tenant shall deliver to Owner documentation, reasonably
satisfactory to Owner, including, but not limited to, audited financial
statements, evidencing Tenant's net worth on the 30th month anniversary of the
Commencement Date.*
- 26 -
31
MULTI/MAS 88
Exhibit "A"
Rules and Regulations
1. Tenant shall keep the loading dock areas free of refuse and debris.
2. The sidewalks, entrances, passages, lobbies, elevators, vestibules,
stairways, corridors and halls shall not be obstructed or encumbered by Tenant
or used for any purpose other than ingress and egress to and from the demised
premises. Tenant shall not permit any of its invitees to congregate in any of
said areas. No door mat shall be placed or left in any public hall (or outside
any entry door of the demised premises). No property of Tenant may be kept or
placed outside the demised premises.
3. Tenant and its invitees shall not litter any portion of any public area of
the Building, the Park, if applicable, or the Real Property. Tenant shall
promptly remove snow, litter and debris from such areas.
4. Tenant shall not mark, paint, drill into or in any way deface any part of the
demised premises or the Building, unless it restores the demised premises to the
condition it was in prior to such activity and repairs any damage to the demised
premises resulting therefrom. No boring, cutting or stringing of wires shall be
permitted, except with the prior consent of Owner, and as Owner may direct.*
5. The sashes, sash doors, skylights, windows and doors that reflect or admit
light and air into the halls, passageways and other public places shall not be
covered or obstructed by Tenant. Bottles, parcels and other articles shall not
be placed on window xxxxx by Tenant.
6. No showcases or other articles shall be put in front of or affixed to any
part of the exterior of the Building, nor placed in the halls, corridors or
vestibules by Tenant.
7. Tenant shall not discharge or permit to be discharged any materials, which
may cause damage, into waste lines, vents or flues. The water and wash closets
and other plumbing fixtures shall not be used for any purpose other than those
for which they were designed and constructed, and no sweepings, rubbish, rags,
corrosives, acids or other substances shall be thrown or deposited therein. All
damages resulting from any misuse of such fixtures shall be borne by the tenant
who, or whose invitees, shall have caused the same.
8. No noise (including, but not limited to, music or the playing of musical
instruments, recordings, radio or television) which, in Owner's reasonable
judgment, might disturb other tenants in the Building or the.Park, if
applicable, shall be made or permitted by Tenant. Nothing shall be done or
permitted in the demised premises by Tenant which in Owner's reasonable
judgement would impair or interfere with the use or enjoyment by any other
tenant shall not throw anything out of the doors, windows or skylights or into
the passageways.*
9. No equipment ;which generates noise or vibration may be installed din the
demised premises except with the prior consent of owner, which consent shall not
be unreasonably withheld, and as Owner may reasonably direct. Any condition
which causes transmission of sounds, noise or vibrations outside of the demised
- 27 -
32
MULTI/MAS 88
premises shall be corrected by Tenant.*
10. Neither Tenant nor its invitees shall bring or keep upon the demised
premises any explosive fluid, chemical or substance, nor any flammable or
combustible objects or materials, except as set forth in Section 58(k).*
11. No awnings or other projections shall be attached to the outside walls of
the Building. No curtains, blinds, shades, or screens shall be attached to or
hung in, or used in connection with, any window or door of the demised premises,
without the prior consent of Owner. Such curtains, blinds, shades or screens
must be of a quality, type, design and color, and attached in the manner,
approved by Owner.
12. No sign, insignia, advertisements, object, notice or other lettering shall
be exhibited, inscribed, painted or affixed by any Tenant on any part of the
outside or inside of the demised premises or the Building without the prior
written consent of Owner. In the event of the violation of the foregoing by
Xxxxxx, Owner may remove the same without any- liability, and may charge the
expense incurred in such removal to Tenant. Interior signs and lettering on
doors and directory tablets shall, if and when approved by Owner, be inscribed,
painted or affixed by Owner at the expense of Tenant, and shall be of a size,
color and style acceptable to Owner.
13. Owner reserves the right to rescind, alter or waive any Rule or Regulation
at any time prescribed for the Building, when, in its reasonable judgment, it
deems it necessary or desirable for the reputation, safety, care or appearance
of the Building, Real Property or the Park, if applicable, or the preservation
of good order therein, or the operation or maintenance of the Building, or the
Park, if applicable, or the equipment thereof, or the comfort of tenants or
others in the Building. No recision, alteration or waiver of any Rule or
Regulation in favor of one tenant shall operate as a rescission, alteration or
waiver in favor of any other tenant. Owner shall notify Tenant of such
recission, alteration or waiver.*
14. Tenant shall, upon the termination of its tenancy, turn over to Owner all
keys of the demised premises and stores, offices and toilet rooms, either
furnished to, or otherwise procured by, Tenant and in the event of the loss of
any keys, Tenant shall pay to Owner the cost of replacing the locks and keys.
15. The demised premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose. Canvassing, soliciting and peddling in the Building
are prohibited and Tenant shall cooperate to prevent the same. Tenant shall not
cause or permit any odors of cooking or other processes or any odors to emanate
from the demised premises which would annoy other tenants or create a public or
private nuisance. No cooking shall be done in the demised premises except as is
expressly permitted in the lease. Tenant shall not use the demised premises for
medical or health care uses or for the treatment of any patients in the demised
premises.
16. Tenant shall keep all windows in the demised premises clean at all times.
However, Tenant shall not be required to clean windows more often than once
every two (2) months.
17. Owner shall not unreasonably withhold or delay from Tenant any
approval provided for in the Rules and Regulations.
- 28 -
33
MULTI/MAS 88
Exhibit "B"
WORK SPECIFICATIONS
Premises will be delivered in broom clean condition finished substantially "as
is" except as set forth under Additional Work Specifications hereinbelow and the
floor plan attached hereto.
Walls, doors, ceilings and floors shall be as currently installed. All
alterations, additions or deletions called for in the Additional Work
Specifications or in the floor plan attached hereto shall be furnished and
prepared to the standards now existing on the premises.
Convenience wall outlets, lighting switches, and lighting fixtures shall
be as installed. Supplementary or replacement ramping by Tenant. Tenant
shall not overload electric circuits.
Standard duplex convenience outlets, ceiling lighting, lighting switches,
heating and air conditioning equipment, meter and main control panel shall be
wired and operative. Any wiring distribution other than for the above may be
used by Tenant to the extent serviceable but is not warranted by Owner as to
operating condition.
Heating and air conditioning equipment has been installed and will be turned
over to Tenant in good operating condition. Tenant shall be responsible for the
maintenance thereof in accordance with Article 58 (h) of this Lease.
Heating equipment is designed for maintaining 70-degrees F. when outside
temperature is 0-degrees F. and wind velocity is 15 MPH. Air conditioning
equipment is designed to maintain a 15-degrees temperature draw-down when the
outside temperature is 95-degrees F. dry bulb and 75-degrees F. wet bulb. Air
conditioning specifications are designed on the basis of doors and windows being
closed as well as all windows in the air conditioned premises being provided
with venetian blinds, shades or drapes which shall be closed, depending on the
position of the sun. Tenant shall install, repair or supplement such window
coverings as necessary.
Electric Service
The premises shall be equipped with an electric meter and control panel capable
of supplying 300 Amperes, 277/408V, 3 phase 4 wire to the premises.
Floor Load
Tenant shall not impose a floor load greater than 3001bs. per square
foot.
Rest Rooms
Rest rooms are as shown on the attached floor plan.
Additional Work Specifications
Owner, at its sole cost and expense, shall paint the demised premises in a color
to be chosen by Tenant from Owner's standard paint selection chart and
commercially clean the floors throughout the demised premises.
All selections or designations to be made by Tenant are to be made within five
(5) business days after request by Owner. If Tenant has not made such
designations or selections within said period, the Owner shall be authorized to
do so on behalf of Tenant.
- 29 -
