EXHIBIT 10.1.2
AMENDED LEASE
Agreement of Lease, made as of this ____ day of _______, 2000 between
BRIDGE STREET PROPERTIES LLC, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
hereinafter referred to as OWNER, and IWON, INC., a Delaware corporation with
offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, hereinafter
referred to as TENANT.
WHEREAS, by Lease made as of July 27, 1999 the parties (Tenant was formerly
known as CTC Bulldog, Inc.) agreed that Owner would rent to Tenant space at One
Bridge Street, Irvington, New York, and
WHEREAS, the parties have amended their agreements and wish to set forth their
new agreements in an Amended Lease,
NOW, THEREFORE, in consideration of their mutual promises, the parties agree as
follows:
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from Owner
approximately 19,425 SQUARE FEET OF SPACE, located at the building known as ONE
BRIDGE STREET (the "Building"), such space known as SUITES 42, 121, 30, 112, 34
AND 109 (Suite 109 to be occupied on November 1, 2000) as shown on Exhibit A
attached hereto (the "Demised Premises") in the Village of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, for the term as set forth in Article 39 of the Lease Rider (or
until such term shall sooner cease and expire as hereinafter provided) for the
period which commenced on AUGUST 1, 1999 and which expires on AUGUST 31, 2004,
both dates inclusive, at an annual rental rates as set forth in Article 37 of
the Lease Rider, 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).
The parties hereto, for themselves, their heirs, distributes, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
RENT:
1. Tenant shall pay the rent as above and as hereinafter provided.
OCCUPANCY:
2. Tenant shall use and occupy demised premises for office use (including
appurtenant kitchenette) and for no other purpose.
TENANT ALTERNATIONS:
3. Tenant shall make no changes in or to the demised premises of any
nature without Owner's prior written consent, not unnecessarily withheld or
delayed. However, Tenant shall not be required to remove at the end of the term
any of Landlord's work as identified on
Exhibit B attached hereto. Subject to the prior written consent of Owner, and to
the provisions of this article, Tenant at Tenant's expense, may make
alterations, installations, additions or improvements which are nonstructural
and which do not affect utility services or plumbing and electrical lines, in or
to the interior of the demised premises by using contractors of mechanics first
approved by Owner, which approval shall not be unreasonably withheld or delayed.
Tenant shall, before making any alterations, additions, installations or
improvements, at its expense, obtain all permits, approvals and certificates
required by any governmental or quasi-governmental bodies and (upon completion)
certificates of final approval thereof and shall deliver promptly duplicates of
all such permits, approvals and certificates to Owner and Tenant agrees to carry
and will cause Tenant's contractors and subcontractors to carry such ▇▇▇▇▇▇▇'▇
compensation, general liability, personal and property damage insurance as Owner
may reasonably require. If any mechanic's lien is filed against the demised
premises, or the building of which the same forms a part, for work claimed to
have been done for, or materials furnished to, Tenant, whether or not done
pursuant to this article, the same shall be discharged by Tenant within thirty
days after Tenant receives notice thereof, at Tenant's expense, by filing the
bond required by law. Nothing in this Article shall be construed to give Owner
title to or to prevent Tenant's removal of trade fixtures, moveable office
furniture and equipment, but upon removal of any such from the premises or upon
removal of other installations as may be required by Owner, Tenant shall
immediately and at its expense, repair and restore the premises to the condition
existing prior to installation and repair any damage to the demised premises or
the building due to such removal. All property permitted or required to be
removed, by Tenant at the end of the term remaining in the premises after
Tenant's removal shall be deemed abandoned and may, at the election of Owner,
either be retained as Owner's property or may be removed from the premises by
Owner, at Tenant's expense. Tenant shall not be required to remove trade
fixtures at the conclusion of the term. Notwithstanding anything to the contrary
set forth herein, Tenant shall have the right to make interior non-structural
alterations which do not adversely affect the Building systems or structure, but
only after receiving Owner's written consent, not to be unreasonably withheld or
delayed.
MAINTENANCE AND REPAIRS:
4. (a) Tenant shall, throughout the term of this lease, take good care of
the demised premises and the fixtures and appurtenances therein. Tenant shall be
responsible for all damage or injury to the demised premises or any other part
of the building and the systems and equipment thereof, whether requiring
structural or nonstructural repairs caused by or resulting from carelessness,
omission where Tenant had a duty to act, neglect or improper conduct of Tenant,
Tenant's subtenants, agents, employees, invitees or licensees, or which arise
out of any work, labor, service or equipment done for or supplied to Tenant or
any subtenant, other than Landlord's work, or arising out of the installation,
use or operation of the property or equipment of Tenant or any subtenant, unless
caused by the act or omission of Owner, its agents, employees or contractors.
Tenant shall also repair all damage to the building and the demised premises
caused by the moving of Tenant's fixtures, furniture and equipment. Tenant shall
promptly make at Tenant's expense, all repairs in and to the demised premises
for which Tenant is responsible, using contractors reasonably acceptable to
Owner. Any other repairs in or to the building or the facilities and systems
thereof for which Tenant is responsible shall be performed by Owner at the
Tenant's expense. Owner shall maintain in good working order and repair the
exterior and the structural portions of the building, including the structural
portions of its
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demised premises, and the public portions of the building interior and the
building plumbing, electrical, heating and ventilating systems (to the extent
such systems presently exist) serving the demised premises. Tenant agrees to
give prompt notice of any defective condition in the premises for which Owner
may be responsible hereunder after Tenant has actual knowledge thereof. There
shall be no allowance to Tenant for diminution of rental value and no liability
on the part of Owner by reason of inconvenience, annoyance or injury to business
arising from Owner or others making repairs, alterations, additions or
improvements in or to any portion of the building or the demised premises or in
and to the fixtures, appurtenances or equipment thereof; provided such actions
do not materially interrupt, interfere with or otherwise adversely affect the
Tenant's use of the Demised Premises or the reasonable, safe and convenient
access to the Demised Premises by the Tenant and its employees and customers,
and provided further that Tenant's use of the Demised Premises and Tenant's
reasonable, safe and convenient access to the Demised Premises by the Tenant and
its employees and customers is not materially adversely affected. It is
specifically agreed that Tenant shall not be entitled to any set off or
reduction of rent by reason of any failure of Owner to comply with the covenants
of this or any other article of this Lease except to the extent Tenant is not
materially harmed as referenced in the preceding sentence of this Article 4.
Tenant agrees that Tenant's sole remedy at law in such instance will be by way
of an action for damages for breach of contract. The provisions of this Article
4 shall not apply in the case of fire or other casualty which are dealt with in
Article 9 hereof. Notwithstanding anything to the contrary set forth herein: (a)
Owner shall, at Owner's expense, maintain and keep in good repair the interior
and exterior structural portions of the building, the roof, floor slabs,
foundation and Building systems and (b) Owner shall make all structural or
extraordinary alterations and repairs to the Building and the demised premises
that are required to be made by any local, state or federal laws now or
hereafter in effect ("Legal Requirements"), unless due to Tenant's particular
manner or use of the demised premises. Owner shall be solely responsible for the
cost of any such alterations and repairs unless same are necessitated by
Tenant's manner of use of the demised premises. (b) (i) Owner hereby reserves
the right at any time and from time to time to make alterations or additions to
the Building, the buildings adjoining the same and any other buildings located
on Bridge Street owned by Owner (collectively, the "Bridge Street Properties"
("BSP")). Owner further reserves the right at any time and from time to time to
construct, or permit to construct, other buildings or improvements within the
BSP. Such rights set forth in two preceding sentences include, without
limitation, the right to construct additional stories on any such building or
buildings, the right to build adjoining the same, the right to construct
multi-level, elevated, underground and other parking facilities within the BSP
and the right to erect in connection with any such construction or building
temporary scaffolds and other aids to such construction or building. Owner shall
have the right at any time and from time to time to change the street address of
the Demised Premises or to change the name of the Building without incurring any
liability to Tenant. Tenant acknowledges that the Building may be expanded to
include multiple levels (the "Expansion") and that the Expansion may include
office, retail and residential uses. (ii) If an excavation shall be made upon
land adjacent to the Demised Premises, Tenant shall permit the person(s)
authorized to do such excavation to enter the Demised Premises for the purpose
of doing such work as such person(s) deems necessary to preserve the building of
which the Demised Premises is a part and to support the same by proper
foundations without any claim for damages or indemnification from Owner or
abatement of rental or other charges hereunder. (iii) There shall be no
allowance to Tenant for a diminution in rental value and no liability on the
part of Owner by reason of
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inconvenience, annoyance or injury to business arising from Owner or others
making any changes, alterations, additions, improvements, repairs or
replacements in or to any portion of the Building, the Demised Premises or the
BSP, or in or to any fixtures, appurtenances or equipment therein; provided such
actions do not materially interrupt, interfere with or otherwise adversely
affect the Tenant's use of the Demised Premises or the reasonable, safe and
convenient access to the Demised Premises by the Tenant and its employees and
customers, and provided further that Tenant's use of the Demised Premises and
Tenant's reasonable, safe and convenient access to the Demised Premises by the
Tenant and its employees and customers is not materially adversely affected.
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 Labor Law or any other applicable law or of the Rules of the Board of
Standards and Appeals, or of any other Board or body having or asserting
jurisdiction.
REQUIREMENTS OF LAW, FIRE INSURANCE, FLOOR LOADS:
6. Prior to the commencement of the lease term, if Tenant is then in
possession, and at all times thereafter, Tenant at Tenant's sole cost and
expense, shall promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer and all
regulations of the New York State Board of fire Underwriters, Insurance Service
office with respect to the demised premises arising out of tenant's manner of
use thereof, or with respect to the building if arising out of tenant's manner
of use of the premises or the building (including the use permitted under the
lease). Nothing herein shall require Tenant to make structural repairs or
alterations unless Tenant has, by its manner of use of the demised premises or
method of operation therein, violated any such laws, ordinances, orders, rules,
regulations or requirements with respect thereto. Tenant may, after securing
Owner to Owner's satisfaction against all damages, interest, penalties and
expenses, including, but not limited to, reasonable attorney's fees, by cash
deposit or by surety bond in an amount and in a company satisfactory to Owner,
contest and appeal any such laws, ordinances, orders, rules, regulations or
requirements provided same is done with all reasonable promptness and provided
such appeal shall not subject Owner to prosecution for a criminal offense or
constitute a default under any lease or mortgage under which Owner may be
obligated, or cause the demised premises or any part thereof to be condemned or
vacated. Tenant shall not do or permit any act or thing to be done in or to the
demised premises which is contrary to law, or which will invalidate or be in
conflict with public liability, fire or other policies of insurance at any time
carried by or for the benefit of Owner with respect to the demised premises or
the building of which the demised premises form a part, or which shall or might
subject Owner to any liability or responsibility to any person or for property
damage. Tenant shall not keep anything in the demised premises except as now or
hereafter permitted by the Fire Department, Board of Fire Underwriters, Fire
Insurance Rating Organization or other authority having jurisdiction, and then
only in such manner and such quantity so as not to increase the rate for fire
insurance applicable to the building, nor use the premises in a manner which
will increase the insurance rate for the building or any property located
therein over that in effect prior to the commencement of Tenant's occupancy.
Tenant
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shall pay all costs, expenses, fines, penalties, or damages, which may be
imposed upon Owner by reason of Tenant's failure to comply with the provisions
of this article and if by reason of such failure the fire insurance rate shall,
at the beginning of this lease, or at any time thereafter, be higher than it
otherwise would be, then Tenant shall reimburse Owner, as additional rent
hereunder, for that portion of all fire insurance premiums thereafter paid by
Owner which shall have been charged because of such failure by Tenant. In any
action or proceeding wherein Owner and Tenant are parties, a schedule or "make
up" of rate for the building or demised premises issued by the New York Fire
Insurance Exchange, or other body making fire insurance rates applicable to said
premises shall be conclusive evidence of the facts therein stated and of the
several items and charges in the fire insurance rates then applicable to said
premises. Tenant shall not place a load upon any floor of the demised premises
exceeding the floor load per square foot area which it was designed to carry and
which is allowed by law. Owner reserves the right to prescribe the weight and
position of all safes, business machines and mechanical equipment. Such
installations shall be placed and maintained by Tenant, at Tenant's expense, in
settings sufficient, in Owner's reasonable judgment, to absorb and prevent
vibration, noise and annoyance. Notwithstanding the foregoing, Tenant shall have
no obligation to undertake, complete and pay for, and Landlord shall be solely
responsible for complying, as its sole cost and expense, with all rules, orders,
regulations and requirements of any governmental agency and with all insurance
directives which may require any alteration, improvement, maintenance,
restoration, repair, remediation, or clean-up of the Demised Premises, or any
part thereof, including but not limited to, alterations required to comply with
the terms and provisions of the American with Disabilities Act, to the extent
required by law, unless and to the extent caused or necessitated solely as a
result of Tenant's negligence or Tenant's specific and particular use of the
Demised Premises at that time, as opposed to the mere general office use of the
Demised Premises.
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 of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall execute any certificate that Owner may reasonably request.
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 of or
damage to any property of Tenant by theft or otherwise, nor for any injury or
damage to persons or property resulting from any cause of whatsoever nature,
unless caused by or due to the negligence or willful misconduct of Owner, its
agents, servants or employees. Owner or its agents will not be liable for any
such damage caused by other tenants or persons in, upon or about said building
or caused by operations in construction of any private, public or quasi public
work. If at any time any windows of the demised premises are temporarily closed,
darkened or bricked up (or
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permanently closed, darkened or bricked up, if required by law) 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. Each party hereto ("First Party") shall indemnify and save harmless
the other ("Other Party") against and from all liabilities, obligations,
damages, penalties, claims, costs and expenses for which the First Party shall
not be reimbursed by insurance, including reasonable attorneys fees, paid,
suffered or incurred as a result of any breach by First Party, its agents,
contractors, employees, invitees, or licensees, of any covenant or condition of
this lease, or the carelessness, negligence or improper conduct of the First
Party, its agents, contractors, employees, invitees or licensees. First Party's
liability under this lease extends to the acts and omissions of any sub-tenant,
and any agent, contractor, employee, invitee or licensee of any sub-tenant. In
case any action or proceeding is brought against Other Party by reason of any
such claim, First Party, upon written notice from Other Party, will, at First
Party's expense, resist or defend such action or proceeding by counsel approved
by Other Party in writing, such approval not to be unreasonably withheld. As of
the date of this Lease, Landlord represents, warrants and covenants with Tenant
that, to the best of Landlord's knowledge, information and belief, there are no
asbestos-containing materials or other Hazardous Substances (defined below) in
or about the Demised Premises or the Building and the Demised Premises and the
Building is not in violation of any Environmental Law (defined below). Landlord
shall indemnify, defend and save Tenant harmless from and against all loss as a
result of (i) any breach of this representation, warranty or covenant set forth
in the preceding sentence, (ii) any breach by Landlord of any term, covenant or
condition of this Lease, (iii) the gross negligence or willful misconduct of
Landlord or its agents and employees (iv) the presence of any
asbestos-containing substances, or other Hazardous Materials on or about the
Demised Premises or the Building, and (v) any violation of any Environmental Law
by Landlord, its agents or employees, which affects the Building, the Demised
Premises or the Building's common areas.
"Environmental Laws" shall mean all applicable Federal, state, county, and
local statutes, laws, regulations, rules, ordinances, codes, standards,
guidelines, orders, licenses and permits of any governmental authorities
relating to environmental, health or safety matters, including by way of
illustration and not by way of limitation, the Clean Air Act, the Federal Water
Pollution Control Act of 1972, the Solid Waste Disposal Act of 1970, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
the Resource Response, Compensation and Liability Act of 1980, the Toxic
Substances Control Act and any state and local equivalents of all of the
preceding laws, including any amendments or extensions thereof and all future
similar statutes, laws, rules, regulations and directives and any rules,
regulations, standards or guidelines issued pursuant to any of said
Environmental Laws.
"Hazardous Substance" shall mean and include any hazardous or toxic
substance, material or waste (including constituents thereof) which is or prior
to the Closing date becomes regulated by Governmental Authorities, including any
material or substance which is (a) listed or defined as a "hazardous waste,"
"extremely hazardous waste," "restricted hazardous waste," "hazardous substance"
or "toxic substance" or words of similar import under the Environmental Laws,
(b) petroleum and its byproducts, (c) asbestos, radon gas, urea formaldehyde
foam insulation, (d) polychlorinated biphenyl, or (e) designated as a hazardous
or toxic substance or waste or words of similar import by the Environmental
Laws; except that, notwithstanding the
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foregoing or any other provision in this Option Agreement to the contrary, the
words "Hazardous Materials" shall not mean or include (i) contamination caused
by normal application of pesticides, fungicides or other agricultural products;
(ii) groundwater or surface water contamination which is below levels which
would be actionable under the Laws where action levels have been stated; (iii)
any amount of hazardous substances released which is below the "reportable
quantity" for that substance as defined in 42 U.S.C. 9602; (iv) a hazardous
substance which is in situ and poses no immediate threat to Persons or the
environment; or (v) naturally occurring Hazardous Substances such as wood or
marble.
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 except thereof to
Owner an this lease shall continue in full as hereinafter set forth. (b) If the
demised premises are partially damaged or rendered partially unusable or
inaccessible 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 and the Demised Premises are usable for the conduct of
its business, shall be apportioned from the day following the casualty according
to the part of the premises which is usable. (c) If the demised premises are
totally damaged or rendered wholly unusable by fire or other casualty, then the
rent shall be proportionately paid up to the time of the casualty and
thenceforth shall cease until the date when the premises shall have been
repaired and restored by Owner, subject to Owner's right to elect not to restore
the same as hereinafter provided. (d) If the demised premises are rendered
wholly unusable or (whether or not the demised premises are damaged in whole or
in part) if the building shall be so damaged that Owner shall decide to demolish
it or to rebuild it, then, in any of such events, Owner may elect to terminate
this lease by written notice to Tenant, given within 90 days after such fire or
casualty, provided that Landlord's election to terminate shall be n effective
unless all leases covering space in the Building have been terminated or notice
of said termination has been given to the respective tenants. If Landlord gives
such notice, it shall specify a date for the expiration of the lease, which date
shall not be more than 60 days after the giving of such notice, and upon the
date specified in such notice the term of this lease shall expire as fully and
completely as if such date were the date set forth above for the termination of
this lease and Tenant shall forthwith quit, surrender and vacate the premises
without prejudice however, to Landlord's rights and remedies against Tenant
under the lease provisions in effect prior to such termination, and any rent
owing shall be paid up to such date and any payments of rent made by Tenant
which were on account of any period subsequent to such date shall be returned to
Tenant. Unless Owner shall serve a termination notice as provided for herein,
Owner shall make the repairs and restorations under the conditions of (b) and
(c) hereof, with all reasonable expedition, subject to delays due to adjustment
of insurance claims, labor troubles and causes beyond Owner's control. After any
such casualty, Tenant shall cooperate with Owner's restoration by removing from
the premises as promptly as reasonably possible, all of Tenant's salvageable
inventory and movable equipment, furniture, and other property. Tenant's
liability for rent shall resume five (5) days after written notice from Owner
that the premises are substantially ready for Tenant's occupancy. (e) Nothing
contained hereinabove shall relieve Tenant from liability that may exist as a
result of damage from fire or other casualty. Notwithstanding the foregoing,
each party shall look first to any insurance in its favor before making any
claim against the other party for recovery for loss or damage resulting from
fire or other casualty, and to the extent that such insurance is in force and
collectible and to
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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
reach of them by way of subrogation or otherwise. The foregoing release and
waiver shall be in force only if both releasers' insurance policies contain a
clause providing that such a release or waiver shall not invalidate the
insurance. If, and to the extent, that such waiver can be obtained only by the
payment of additional premiums, then the party benefiting from the waiver shall
pay such premium within ten days after written demand or shall be deemed to have
agreed that the party obtaining insurance coverage shall be free of any further
obligation under the provisions hereof with respect to waiver of subrogation.
Tenant acknowledges that Owner will not carry insurance on Tenant's furniture
and/or furnishings or any fixtures or equipment, improvements, or appurtenances
removable by Tenant and agrees that Owner will not be obligated to repair any
damage thereto or replace the same. (f) Tenant hereby waives the provisions of
Section 227 of the Real Property Law and agrees that the provisions of this
article shall govern and control in lieu thereof. (g)(i) if the Demised Premises
are rendered substantially unusable by Tenant for the ordinary conduct of its
business due to a fire or other casualty and Landlord does not elect to
terminate this Lease as set forth herein, then within thirty (30) days after
such damage, Landlord shall deliver to Tenant a statement prepared by a
reputable independent, contractor, setting forth such contractor's good faith
estimate as to the time required to repair such damage. If such estimated time
period exceeds one hundred eighty (180) days from the date of such damage,
Tenant may elect to terminate this Lease by giving notice to Landlord not later
than thirty (30) days following Tenant's receipt of such statement. If Tenant
makes such election, the Term of this Lease shall expire on the tenth (10th) day
after the date notice of such election is given, and Tenant shall vacate the
Demised Premises and surrender the same to Landlord on such date; and (g)(ii)
notwithstanding the foregoing, if Landlord shall have failed to make such
repairs within one hundred eighty (180) days from the date of such damage, then
Tenant may elect to terminate this Lease by notice given to Landlord within
thirty (30) days after the expiration of such one hundred eighty (180) day
period. If Tenant makes such election pursuant to this subsection (g)(ii), the
Term of this Lease shall expire on the tenth (10th) day after the notice of such
election is given by Tenant, and Tenant shall vacate the Demised Premises and
surrender the dame [SIC] to Landlord on such date.
EMINENT DOMAIN:
10. he whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purpose, then
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceeding and Tenant shall have no claim for the
value of any unexpired term of said lease and assigns to Owner, Tenant's entire
interest in any such award. Tenant shall have the right to make an independent
claim to the condemning authority for the value of Tenant's moving expenses and
personal property, trade fixtures and equipment, provided Tenant is entitled
pursuant to the terms of this lease to remove such property, trade fixtures and
equipment at the end of the term, and provided further such claim does not
reduce Owner's award.
ASSIGNMENT, MORTGAGE, ETC.:
11. Tenant, for itself, its heirs, distributes, executors, administrators,
legal representatives, successors and assigns, expressly covenants that it shall
not assign, mortgage or
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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 which shall not be unreasonably withheld or delayed.
Transfer of the majority of the stock of a corporate Tenant shall be deemed an
assignment. If this lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than Tenant, Owner may, after
default by Tenant, collect rent from the assignee, under-tenant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, under-tenant, or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting.
ELECTRIC 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 way make Owner liable or
responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain. Landlord represents that the Demised Premises are served by no less
than seven (7) ▇▇▇▇▇, connected load of electricity, per usable square foot.
ACCESS TO PREMISES:
13. (a) Owner or Owner's agents shall have the right (but shall not be
obligated) to enter the demised premises upon reasonable advance notice to
Tenant. In any emergency at any time, and, at other reasonable times, to examine
the same and to make such repairs, replacements and improvements as Owner may
deem necessary to the demised premises or necessary and reasonable desirable to
any other portion of the building or which Owner may elect to perform; provided,
however, in no event shall Landlord interrupt, interfere with or otherwise
adversely affect the Tenant's use of the Demised Premises or the reasonable,
safe and convenient access to the Demised Premises by the Tenant and its
employees and customers, and provided further that Tenant's use of the Demised
Premises and Tenant's reasonable, safe and convenient access to the Demised
Premises by the Tenant and its employees and customers is not adversely
affected. Tenant shall permit Owner to show same to prospective purchasers or
mortgagees of the building, and during the last six months of the term for the
purpose of showing the same to prospective tenants. If Tenant is not present to
open and permit an entry into the premises, Owner or Owner's agents may enter
the same whenever such entry may be necessary or permissible by master key or
forcibly and provided reasonable care is exercised to safeguard Tenant's
property, such entry shall not render Owner or its agents liable therefor nor in
any event shall the obligations of Tenant hereunder be affected. If during the
last month of the term Tenant shall have removed all or substantially all of
Tenant's property therefrom Owner may immediately enter, alter, renovate or
redecorate the demised premises without limitation or abatement of rent, or
incurring liability to Tenant for any compensation and such act shall have
9
no effect on this lease or Tenant's obligations hereunder. (b)(i) Owner shall
have the exclusive right to use and obtain access to all or any part of the
roof, exterior side and rear walls of the Demised Premises for any purpose,
including but not limited to, erecting signs or other structures on or over all
or any part of the same, erecting scaffolds and other aids to the construction
and installation of the same, and installing, maintaining, using, repairing and
replacing pipes, ducts, conduits and wires leading through, to or from the
Demised Premises and serving other parts of the BSP in locations which do not
materially interfere with Tenant's use of the Demised Premises. Tenant shall
have no right whatsoever in the exterior of exterior walls or the roof of the
Demised Premises except as otherwise provided for in this Lease. (ii) Tenant
shall permit Owner to install, use and maintain pipes, ducts and conduits within
or through the Demised Premises, or through the walls, columns and ceilings
therein, provided that the installation work is performed at such times and by
such methods as will not materially interfere with Tenant's use and occupancy of
the Demised Premises. Where access doors are required for mechanical trades in
or adjacent to the Demised Premises, Owner shall furnish and install such access
doors and confine their location, wherever practical, to closets, coat rooms,
toilet rooms, corridors and kitchen or pantry rooms. Notwithstanding the
foregoing, in performing any work in or about the demised premises, Owner shall
use all reasonable efforts not to disturb Tenant's business operations,
including performing work after hours if practicable. In no event shall any work
or renovations by Owner result in a reduction of the size of the demised
premises. Tenant shall have the right to have a representative present when
Owner shall enter the Demised Premises.
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.
OCCUPANCY:
15. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part. Tenant has inspected the premises and accepts them
as is, subject to the riders annexed hereto with respect to Owner's work, if
any. Notwithstanding the foregoing, Owner represents that (i) there is a valid
Certificate of Occupancy covering the building, including the demised premises,
which permits the Permitted Use in the demised premises (subject to the
requirement that any new construction receive its own new certificate of
occupancy or completion) and (ii) there are no violations of Legal Requirements
affecting the demised premises as of the date hereof.
10
BANKRUPTCY:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding,
this lease may be canceled by Owner by the sending of a written notice to Tenant
within a reasonable time after the happening of any one or more of the following
events: (i) the commencement of a case in bankruptcy or under the laws of any
state - naming Tenant as the debtor; or (ii) 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. Notwithstanding anything to the contrary
contained herein, Tenant shall be afforded a period of ninety (90) days in which
to procure the dismissal of an involuntary bankruptcy proceeding before such
proceeding shall constitute a default hereunder. (b) It is stipulated and agreed
that in the event of the termination of this lease pursuant to (a) hereof, Owner
shall forthwith, notwithstanding any other provisions of this lease to the
contrary, be entitled to recover from Tenant as and for liquidated damages an
amount equal to the difference between the rent reserved hereunder for the
unexpired portion of the term demised and the fair and reasonable rental value
of the demised premises for the same period. In the computation of such damages
the difference between any installment of rent becoming due hereunder after the
date of termination and the fair and reasonable rental value of the demised
premises for the period for which such installment was payable shall be
discounted to the date of termination at the rate of four percent (4%) per
annum. If such premises or any part thereof be relet by the Owner for the
unexpired term of said lease, or any part thereof, before presentation of proof
of such liquidated damages to any court, commission or tribunal, the amount of
rent reserved upon such reletting shall be deemed to be the fair and reasonable
rental value for the part or the whole of the premises so re-let during the term
of the re-letting. Nothing herein contained shall limit or prejudice the right
of the Owner to prove for and obtain as liquidated damages by reason of such
termination, an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
DEFAULT:
17. (a) If Tenant defaults in fulfilling any of the covenants of this
lease other than the covenants for the payment of rent or additional rent and
such default shall continue for more than ten (10) days after Landlord's written
notice to Tenant thereof, or if the same cannot be cured within ten (10) days,
if Tenant shall not have diligently commenced such cure within the ten (10) day
period; or if the demised premises become abandoned (for purposes herein, the
term "abandonment" shall mean that Tenant vacated the Demised Premises without
any visible intention of returning); or if any execution or attachment shall be
issued against Tenant or any of Tenant's property whereupon the demised premises
shall be taken or occupied by someone other than Tenant; or if this lease be
rejected under Section 235 of Title 11 of the U.S. Code (bankruptcy code);, in
any one or more of such events, upon Owner serving a written thirty (10) [SIC]
days notice upon Tenant specifying the nature of said default and upon the
expiration of said thirty (10) [SIC] days, if Tenant shall have failed to comply
with or remedy such default, or if the said
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default or omission complained of shall be of a nature that the same cannot be
completely cured or remedied within said thirty (10) [SIC] day period, and if
Tenant shall not have diligently commenced curing such default within such
thirty (10) [SIC] day period, and shall not thereafter with reasonable diligence
and in good faith, provided. (b) If the notice provided for in (a) 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 after written notice and ten
(10) days to cure, or any item of additional rent herein mentioned after written
notice and ten (10) days to cure, or any part of either or in making any other
payment herein required which default shall not be cured within ten (10) days
after notice; then and in any of such events Owner may without notice, re-enter
the demised premises either by force or otherwise in accordance with applicable
law and dispossess Tenant by summary proceedings or otherwise, and the legal
representative of Tenant or other occupant of demised premise 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, reentry expiration and/or dispossess
summary proceedings or by otherwise, (a) the rent shall become due thereupon and
be paid up to the time of such reentry, dispossession or any part or parts
thereof, either in the name of Owner or otherwise for a term or terms, which may
at Owner's option be less than or exceed the period which would otherwise have
constituted the balance of the term of this lease and may grant reasonable and
customary concessions or free rent or charge a higher rental than that in this
lease, and/or (Tenant or the legal representatives of Tenant shall also pay
Owner and liquidated damages for the failure of Tenant to observe and perform
said Tenant's covenants herein contained, any deficiency between the rent hereby
served and/or covenanted to be paid and the net amount, if any, of the rents
collected on account of the lease or leases of the demised premises for each
month of the period which would otherwise have constituted the balance of the
term of this lease. The failure of Owner to re-let the premises or any part or
parts thereof shall not release or affect Tenant's liability for damages. In
computing such liquidated damages there shall be added to the said deficiency
such expenses as Owner may incur in connection with re-letting, such as
reasonable legal expenses and attorneys' fees, brokerage, advertising and for
keeping the demised premises in good order or for preparing the same for
re-letting. Any such liquidated damages shall be paid in monthly installments by
Tenant on the rent day specified in this lease and any suit brought to collect
the amount of the deficiency for any month shall not prejudice in any way the
rights of Owner to collect the deficiency for any subsequent month by a similar
proceeding. Owner, in putting the demised premises in good order or preparing
the same for re-rental may, at Owner's option, make such alterations, repairs,
replacements, and/or decorations in the demised premises as Owner, in Owner's
sole reasonable judgment, considers advisable and necessary for the purpose of
re-letting the demised premises, and the making of such alterations, repairs,
replacements, and/or decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. Owner shall in no event be liable
in any way whatsoever for failure to re-let the demised premises, or in the
event that the demised premises are re-let, for failure to collect the rent
thereof under such re-letting, and in no event shall Tenant be entitled to
receive any excess, if any, of such net rents collected over the sums
12
payable by Tenant to Owner hereunder. In the event of a breach or threatened
breach by Tenant of any of the covenants or provisions hereof, Owner shall have
the right of injunction and the right to invoke any remedy allowed at law or in
equity as if re-entry, summary proceedings and other remedies were not herein
provided for. Mention in this lease of any particular remedy, shall not preclude
Owner from any other remedy, in law or in equity. Tenant hereby expressly waives
any and all rights of redemption granted by or under any present or future laws
in the event of Tenant being evicted or dispossessed for any cause, or in the
event of Owner obtaining possession of demised premises, by reason of the
violation by Tenant of any of the covenants and conditions of this lease, or
otherwise. Landlord shall not be entitled to accelerate rent due for the balance
of the term of the Lease or declare the same to be immediately due and payable;
however, in the event Landlord obtains a judgment against Tenant, the parties
agree that such judgment may incorporate a provision of which obligates Tenant,
in the event Tenant fails to make any payment when required under the terms of
such judgment (a "judgment default"), to pay Landlord a sum (the "NPV Future
Rents") which, at the time of such judgment default represents the then present
value, calculated using a discount rate of the prime rate publicly announced by
Citibank, NA as of the date of default, of the excess, if any, of the aggregate
of the Rent which would have been payable by Tenant for the period commencing
with the date of such judgment default and ending with the specified expiration
date of the Lease if it had not so terminated (the "Remaining Term") over (1)
the amount of any rents then being paid over the Remaining Term by a replacement
tenant, or (2) if the Demised Premises have not been relet for the entire
Remaining Term, the fair and reasonable rental value of the Demised Premises.
FEES AND EXPENSES:
19. If Tenant shall default, beyond any applicable grace and cure period
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 after notice, except in case of emergency, perform the
obligation of Tenant thereunder. If Owner, in connection with the foregoing or
in connection with any default by Tenant in the covenant to pay rent hereunder,
makes any expenditures or incurs any obligations for the payment of money,
including but not limited to reasonable attorney's fees, in instituting,
prosecuting or defending any action or proceeding, then Tenant will reimburse
Owner for such sums so paid or obligations incurred with interest and costs. The
foregoing "expenses incurred by reason of Tenant's default shall be deemed to be
additional rent hereunder and shall be paid by Tenant to Owner within rendition
ten (10) days after notice thereof to Tenant of any ▇▇▇▇ or statement to Tenant
therefore. If Tenant's lease term shall have expired at the time of making of
such expenditures or incurring of such obligations, such sums shall be
recoverable by Owner as damages.
BUILDING ALTERATIONS AND MANAGEMENT:
20. Owner shall have the right at any time upon reasonable advance notice
to Tenant without the same constituting an eviction and without incurring
liability to Tenant therefore to change the arrangement and/or location of
public entrances, passageways, doors, doorways, corridors, elevators, stairs,
toilets or other public parts of the building and to change the name, number or
designation by which the building may be known. There shall be no allowance to
Tenant for diminution of rental value and no liability on the part of Owner by
reason of
13
inconvenience, annoyance or injury to business arising from Owner or other
tenants making any repairs in the building or any such alterations, additions
and improvements, provided that any changes, work performed or entry into the
Demised Premises shall be made in a manner so as not to materially interfere
with Tenant's use or occupancy of the Demised Premises and shall in no way
deprive Tenant of its access to the Demised Premises and such work shall be
performed with diligence and continuity. Furthermore, Tenant shall not have any
claim against Owner by reason of Owner's imposition of such controls of the
manner of access to the building by Tenant'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 premised, the rents, leases, expenses of
operation or any other matter or thing affecting or related to the premises
except as herein expressly set forth and no rights, easements or licenses are
acquired by Tenant by implication or otherwise except as expressly set forth in
the provisions of this lease. Tenant has inspected the demised premises and is
thoroughly acquainted with its condition and, except as set forth in this Lease
and except as to latent defects and violations of law, agrees to take the same
"as is" subject to performance of Landlord's work as of the date hereof and
acknowledges that the taking of possession of the demised premises by Tenant
shall be conclusive evidence that the said premises were in good and
satisfactory condition at the time such possession was so taken, except as to
latent defects and defects in Landlord's Word for which Landlord shall continue
to remain responsible to cure. All understandings and agreements heretofore made
between the parties hereto are merged in this contract, which alone fully and
completely expresses the agreement between Owner and Tenant and any executory
agreement hereafter made shall be ineffective to change, modify, discharge or
effect an abandonment of it in whole or in part, unless such executory agreement
is in writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought. Notwithstanding anything to
the contrary contained in this Lease, as of the date of this Lease, Landlord
represents, warrants and covenants to and with Tenant as of the Lease
Commencement Date that (i) there are no restrictions in any recorded instrument
or in any agreement not of record to which Landlord, or a previous owner of the
Building, is a party which prohibits or restricts Tenant's Permitted Use of the
Demised Premises, as stated in this Lease, (ii) this Lease and the terms hereof
are not prohibited by the terms of any superior lease mortgage, or other
financing document, constituting a lien against the Building, (iii) the Landlord
is the owner, in fee simple, of the Building and the person(s) executing this
Lease on behalf of the Landlord have the authority to cause Landlord to enter
into this Lease, (iv) the Permitted Use of the Demised Premises, as stated in
this Lease, is a use permitted, or right, under all zoning laws, rules and
regulation applicable to the Building and the Demised Premises, and is not
prohibited or restricted by the terms of the certificate of occupancy of the
Building, an unconditional certificate of occupancy for the entire Demised
Premises is in effect, and (vi) the Demised Premise, will be in good working
order on the Lease Commencement Date.
14
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 subject to damage due to casualty or condemnation,
except as set forth in this Lease and except as to latent defects and violations
of law ordinary wear and damages which Tenant is not required to repair as
provided elsewhere in this lease excepted, and Tenant shall remove all its
property. Tenant's obligation to observe or perform this covenant shall survive
the expiration or other termination of this lease. If the last day of the term
of this Lease or any renewal thereof, falls on Sunday this lease shall expire at
noon on the preceding Saturday unless it be a legal holiday in which case it
shall expire at noon on the preceding business day.
QUIET ENJOYMENT:
23. Owner covenants and agrees with Tenant that upon paying the rent and
additional rent and observing and performing all the terms, covenants and
conditions, or Tenant's part to be observed and performed within applicable
notice and cure periods, Tenant may peaceably and quietly enjoy the premises
hereby demised, subject, nevertheless, to the terms and conditions of this
lease.
FAILURE TO GIVE POSSESSION:
24. If Owner is unable to give exclusive 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 for any other reason, Owner shall not be subject to any liability
for failure to give possession on said date and the validity of the lease shall
not be impaired under such circumstances, nor shall the same be construed in any
wise to extend the term of this lease, but the rent payable hereunder shall be
abated (provided Tenant is not responsible for Owner's inability to obtain
possession) until after Owner shall have given Tenant written notice that the
premises are substantially ready for Tenant's occupancy. If Permission is given
to Tenant to enter into the possession of the demised premises or to occupy
premises other than the demised premises 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.
Notwithstanding the foregoing, Owner shall give possession within 90 days after
a fully executed copy of this lease is exchanged between the parties, subject,
however, to the obligation of the Tenant to perform any work it is to perform in
a timely manner. Notwithstanding the foregoing provisions of this Article 24, in
the event Landlord has not delivered exclusive possession of the Demised
Premises to Tenant on or before August 1, 1999, with time being of the essence
thereof, for any reason whatsoever, including events of Force Majeure, then
Tenant shall have the right to terminate this Lease effective upon delivery of
written notice to Landlord, in which event Landlord shall promptly
15
return to Tenant the Security Deposit, together with all interest earned
thereon, and on parties hereto shall thereafter have no further obligations to
each other by reason of this Lease.
NO WAIVER:
25. The failure of Owner or Tenant 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
payment or receipt by Owner of rent with knowledge of the breach of any covenant
of this lease shall not be deemed a waiver of such breach and no provision of
this lease shall be deemed to have been waived by Owner unless such waiver be in
writing signed by Owner. No payment by Tenant or receipt by Owner of a lesser
amount than the monthly rent herein stipulated shall be deemed to be other than
on account of the earliest stipulated rent, nor shall any endorsement or
statement of any check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction, and Owner may accept such check or payment
without prejudice to Owner's right to recover the balance of such rent or pursue
any other remedy in this lease provided. No act or thing done by Owner or
Owner's agents during the term hereby demised shall be deemed an acceptance of a
surrender of said premises, and no agreement to accept such surrender shall be
valid unless in writing signed by Owner. No employee of Owner or Owner's agent
shall have any power to accept the keys of said premises prior to the
termination of the lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of the premises.
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, Tenant's use of or occupancy of said premises,
and any emergency statutory or any other statutory remedy. It is further
mutually an summary proceeding for possession of the premises, Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding including a counterclaim under Article 4.
INABILITY TO PERFORM:
27. Except as otherwise set forth to the contrary elsewhere in this Lease,
this Lease and the obligation of Tenant to pay rent here under and perform all
of the other covenants and agreements here under on part of Tenant to be
performed shall in no wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under this lease or to supply or is
delayed in supplying any service expressly or implied to be supplied or is
unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Owner is prevented or delayed from so doing by reason of strike or
labor troubles or any cause whatsoever including, but not limited to, government
preemption in connection with a National Emergency or by reason of any rule,
order or regulation of any department or subdivision thereof of any government
agency or by reason of
16
the conditions of supply and demand which have been or are affected by war or
other emergency, provided, however, that in the event that Tenant is unable to
occupy the Demised Premises resulting from a failure to provide access or
building services or as a result of work performed by Landlord, rent and
additional rent shall ▇▇▇▇▇ during such periods.
BILLS AND NOTICES:
28. Except as otherwise in this lease provided, a ▇▇▇▇, statement, notice
or communication which Owner may desire or be required to give to Tenant, shall
be deemed sufficiently given or rendered if, in writing, delivered to Tenant
personally or sent by registered or certified mail addressed to Tenant, at the
building of which the demised premises form a part or left at any of the
aforesaid premises addressed to Tenant, and the time of the rendition of such
▇▇▇▇ or statement and of the giving of such notice or communication shall be
deemed to be the time when the same is delivered to Tenant three (3) business
days after mailed, or left at the premises as herein provided. Any notice by
Tenant to Owner must be served by registered or certified mail addressed to
Owner at the address first hereinabove given or at such other address as Owner
shall designate by written notice. Notwithstanding the foregoing: (i) notices
shall be deemed given on the day of delivery, or, if delivery is refused on the
first business day on which delivery is attempted, and (ii) in addition to the
notice methods specified above, notices given to or by Owner or Tenant may be
given by hand or by courier service (such a Federal Express or airborne) that
provides a signed receipt. Notice shall be given to Owner and Tenant at their
addresses set forth in Rider Paragraph 67.
SERVICES PROVIDED BY OWNERS:
29. Owner shall provide: (a) heat to the demised premises when and as
required by law, on business days from 8 a.m. to 6 p.m. and on Saturdays from __
a.m. to 1 pm.; (b) water for ordinary lavatory purposes, but if Tenant uses or
consumes water for any other purposes or in unusual quantities (of which fact
Owner shall be the sole judge) Owner may install a water meter at Tenant's
expense which Tenant shall thereafter maintain at Tenant's expense in good
working order and repair to register such water consumption and Tenant shall pay
for water consumed as shown on said meter as additional rent as and when bills
are rendered; (c) if the demised premises are serviced by Owner's air
conditioning/cooling and ventilating system, air conditioning/cooling will be
furnished to tenant from May 15th through September 30th on business days
(Mondays through Fridays, holidays excepted) from 8:00 a.m. to 6:00 p.m., and
ventilation will be furnished on business days during the aforesaid hours except
when air conditioning/cooling is being furnished as aforesaid. If Tenant
requires air conditioning/cooling or ventilation for more extended hours or on
Saturdays, Sundays or on holidays, Owner will furnish the same at Tenant's
expense; (e) Owner reserves the right to stop services of the heating,
elevators, plumbing, air-conditioning, power systems or cleaning or other
services, if any, when necessary by reason of accident or for repairs,
alterations, replacements or improvements necessary or desirable in the judgment
of Owner for as long as may be reasonably required by reason thereof provided,
however, that Owner shall provide Tenant with reasonable notice of any such
cessation of utilities to the extent reasonably possible. If the building of
which the demised premises are a part supplied manually operated elevator
service, Owner at any time may substitute automatic control elevator service and
upon ten days' written notice to Tenant, proceed with alterations necessary
therefore without in any wise affecting this lease or the obligation of
17
Tenant hereunder. The same shall be done with a minimum of inconvenience to
Tenant and Owner shall pursue the alteration with due diligence. Notwithstanding
the foregoing provisions of this Article 29, in the event that Tenant is unable
to occupy the Demised Premises resulting from a failure to provide building
services or as a result of work performed by Landlord, rent and additional rent
shall ▇▇▇▇▇ during such periods.
CAPTIONS:
30. The Captions are inserted only as a meter of convenience and for
reference and in no way define, limit or describe the scope of this lease nor
the intent of any provisions thereof.
DEFINITIONS:
31. The term "office", or "offices", wherever used in this lease, shall
not be construed to mean premises used as a store or store, for the sale or
display, at any time, of goods, wares or merchandise, of any kind, or as a
restaurant, shop, booth, bootblack or other stand, ▇▇▇▇▇▇ shop, or for other
similar purposes or for manufacturing. The term "Owner" means a landlord or
lessor, and as used in this lease means only the owner, or the mortgagee in
possession, for the time being of the land and building (or the owner of a lease
of the building or of the land and building) of which the demised premises form
a part, so that in the event of any sale or sales of said land and building or
of said lease, or in the event of a lease of said building, or of the land and
building, the said Owner shall be and hereby is entirely freed and relieved of
all covenants and obligations of Owner hereunder, and it shall be deemed and
construed without further agreement between the parties or their successors in
inters, 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 thereafter arising. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their technical legal
meaning. The term "business days" as used in this lease shall exclude Saturdays
(except such portion thereof as is covered by specific hours in Article 29
hereof), 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 by the applicable Operating Engineers
contract with respect to HVAC service.
ADJACENT EXCAVATION-SHORING:
32. If an excavation shall be made upon land adjacent to the demised
premises, or shall be authorized to be made, Tenant shall afford to the person
causing or authorized to cause such excavation, license an opportunity at
reasonable times on reasonable notice 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 REGULATIONS:
33. Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully, and comply strictly with, the Rules and
Regulations and such other
18
and further reasonable Rules and Regulations as Owner or Owner's agents may from
time to time adopt, provided that such new Rules and Regulations do not
materially interfere with the conduct of Tenant's business, conflict with
Tenant's rights under this Lease, or increase Tenant's monetary obligations
under this Lease. Landlord shall apply all Rules and Regulations in a
nondiscriminatory manner. Landlord shall give Tenant thirty (30) days notice of
any Rule and Regulation before Tenant shall be obligated to comply therewith.
Notice of any additional rules or regulations shall be given in elect the manner
set forth in Article 28 and Rider Paragraph 67. In case Tenant disputes the
reasonableness of any additional Rule or Regulation hereafter made or adopted by
Owner or Owner's agents, the parties hereto agree to submit the question of the
reasonableness of such Rule or Regulation for decision to the New York office of
the American Arbitration Association, whose determination shall be final and
conclusive upon the parties hereto. The right to dispute the reasonableness of
any additional Rule or regulation upon Tenant's part shall be deemed waived
unless the same shall be asserted by service of a notice, in writing upon Owner
within thirty (30) days after the giving of notice thereof. Nothing in this
lease contained shall be construed to impose upon Owner any duty or obligation
to enforce the Rules and Regulations or terms, covenants or conditions in any
other lease, as against any other tenant and Owner shall not be liable to Tenant
for violation of the same by any other tenant, its servants, employees, agents,
visitors or licensees.
SECURITY:
34. Tenant has deposited with Owner the sum as provided in Article 63
hereof as security for the faithful performance and observance by Tenant of the
terms, provisions and conditions of this Lease; it is agreed that in the event
Tenant defaults in respect of any of the terms, provisions and conditions of
this Lease, after applicable notice and grace periods, 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 re-letting of the premises, whether such damages or deficiency
accrued before or after summary proceedings or other re-entry by Owner. In the
event that Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this lease, the security shall be
returned to Tenant after the date fixed as the end of the Lease and after
delivery of entire possession of the demised premises to Owner. In the event of
a sale of the land and building or leasing of the building, of which the demised
premises form a part, Owner shall 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.
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ESTOPPEL CERTIFICATE:
35. Tenant, at any time, and from time to time, upon at least 15 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 and in full force and effect (or, if there have
been modifications, that the same is in full force and effect a modified and
stating the modifications), stating the dates to which the rent and additional
rent have been paid, and stating whether or not there exists any default by
Owner under this Lease, and, if so, specifying each such default.
SUCCESSORS AND ASSIGNS:
36. The covenants, conditions and agreements contained in this lease shall
bind and inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns.
20
SEE RIDER ATTACHED HERETO AND INCORPORATED HEREIN
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
Witness for Owner: BRIDGE STREET PROPERTIES, LLC
By: One Bridge Street Corp.
_________________________ __________________________________
Witness for Tenant: X: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Pres.
_________________________
IWON, INC.
X: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Pres.
__________________________
ACKNOWLEDGMENTS
STATE OF NEW YORK )
)ss.:
COUNTY OF WESTCHESTER )
On the _________ day of ____________, 2000, before me, the undersigned,
personally appeared _________________________ personally known to me or proved
to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the
individuals, or the person upon behalf of which the individual acted, executed
the instrument.
__________________________________
Notary Public
_________________________
STATE OF NEW YORK )
)ss.:
COUNTY OF WESTCHESTER )
On the _________ day of ____________, 2000, before me, the undersigned,
personally appeared _________________________ personally known to me or proved
to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the
individuals, or the person upon behalf of which the individual acted, executed
the instrument.
__________________________________
Notary Public
21
IMPORTANT PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN ACCORDANCE
WITH ARTICLE 33.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or other used for any purpose other than for ingress or egress
from the demised premises and for delivery of merchandise and equipment in a
prompt and efficient manner using elevators and passageways designated for such
delivery by Owner, used in any space, or in the public hall of the building,
either by any Tenant or by jobbers or others in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and side
guards. If said premises are situated on the ground floor of the building,
Tenant thereof shall further, at Tenant's expense, keep the sidewalk and curb in
front of said premises clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for
any purpose other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by Tenant who, or whose clerks, agents,
employees or visitors, shall have caused it.
No carpet, rug or other article shall be hung or shaken out of any window
of the building; and no Tenant shall sweep or throw or permit to be swept or
thrown from the demised premises any dirt or other substances into any of the
corridors or halls, elevators, or out of the doors or windows or stairways of
the building and Tenant shall not use, keep or permit to be used or kept any
foul or noxious gas or substance in the demised premises, or permit or suffer
the demised premises to be occupied or used in a manner offensive or
objectionable to Owner or other occupants of the building by reason of noise,
odors, and/or vibrations, or interfere in any way with other Tenants or those
having business therein, nor shall any animals or birds be kept in or about the
building. Smoking or carrying lighted cigars or cigarettes in the elevators of
the building is prohibited.
4. No Awnings or other projections will be attached to the outside walls
of the building without prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any 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 premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance door
of the demised premises. In the event of the violation of the foregoing by any
Tenant, Owner may remove same without any liability, and may charge the expense
incurred by such removal to Tenant or Tenants violating this rule. Interior
signs on doors and directory tablet shall be inscribed, painted or affixed for
each Tenant by Owner at the expense of such Tenant, and shall be of a size,
color and style acceptable to Owner, except as otherwise provided in this Lease.
22
6. No tenant shall ▇▇▇▇, paint, drill into, or in any way deface any part
of the demised premises or the building of which they form a part except for de
minimis cosmetic work. No boring, cutting or stringing of wires shall be
permitted, except with the prior written consent of Owner, and as Owner may
direct. No Tenant shall lay linoleum, or other similar floor covering, so that
the same shall come in direct contact with the floor of the demised premises,
and, if linoleum or other similar floor covering is desired to be used an
interlining of builder's deadening felt shall be first affixed to the floor, by
a paste or other material, soluble in water, the use of cement or other similar
adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any Tenant, nor shall any changes be made in existing
locks or mechanism thereof. Each Tenant must, upon the termination of his/her
Tenancy, restore to Owner all keys of stores, offices and toilet rooms, either
furnished to, or otherwise procured by, such Tenant, and in the event of the
loss of any keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of
any description shall be delivered to and removed from the premises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease or which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and
each Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building between the
hours of 6 P.M. and 8 A.M. and at all hours on Sundays, and legal holidays all
persons who do not present a pass to the building signed by the Owner. Owner
will furnish passes to persons for whom any Tenant requests such pass and shall
be liable to Owner for all acts of such persons.
11. Owner shall have the right to prohibit any advertising by any Tenant
which identifies the Building which in Owner's reasonable opinion, tends to
impair the reputation of the building or its desirability as a building for
offices, and upon written notice from Owner, Tenant shall refrain from or
discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the
demised premises, any inflammable, combustible or explosive fluid, material,
chemical or substance, or cause or permit any odors to permeate in or emanate
from the demised premises.
13. If the building contains central air conditioning and ventilation,
Tenant agrees to keep all windows closed at all times and to abide by all rules
and regulations issued by the Owner with respect to such services, if Tenant
requires air conditioning or ventilation after the usual hours, Tenant shall
give notice in writing to the building superintendent prior to 3:00 P.M. in the
case of services required on week days, and prior to 3:00 P.M. on the day prior
in the case of after hours service required on weekends or on holidays.
14. Tenant shall not move any safe, heavy machinery, heavy equipment,
bulky matter, or fixtures into or out of the building without Owner's prior
written consent. If such safe,
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machinery, equipment, bulky matter or fixtures requires special handling, all
work in connection therewith shall comply with the Administrative Code of the
City of New York and all other laws and regulations applicable thereto and shall
be done during such hours as Owner may designate.
24
RIDER TO LEASE
Between
BRIDGE STREET PROPERTIES, LLC, Owner
and
iWON, INC., Tenant
37A. In the event any conflict between any of the provisions of this Rider
and any of the terms of the appended lease (including the Rules and
Regulations), such conflict will be resolved in every instance in favor of this
Rider.
37. Base Rent
Commencing as of the Lease Commencement Date, Tenant shall pay to Owner
the annual base rent, in equal monthly installments on the first day of each
month, as follows:
See Exhibit A.
38. Owner's Work
Tenant's occupancy of the premises shall be deemed to be its
acknowledgment that it has examined and accepts the Demised Premise; in "as is"
condition on the Lease Commencement Date, subject to latent defects, hazardous
and toxic substances or conditions not caused by Tenant and violations of law
existing on or prior to the Commencement Date. Further, Tenant agrees that Owner
shall have no obligation to perform any additional work, supply any materials,
incur any expense or make any additional improvements, installations or
alterations to the Demised Premises
39. Commencement Date and Term of Lease
The commencement date of this lease (the Lease Commencement Date) was
August 1, 1999. The term of this lease shall expire on August 31, 2004, unless
such term shall sooner expire as in this lease provided.
40. Real Estate Taxes
A. Effective as of the Commencement Date, Tenant agrees to pay in addition
to base rent as additional rent during the term of this lease and any and all
renewals, extensions, and modifications hereof Tenant's proportionate share of
any and all real estate taxes, school taxes, village taxes, public and
governmental charges and assessments, all costs, expenses and attorneys fees
incurred by Owner in contesting Real Estate Taxes (Owner having the sole
authority to conduct such a contest or enter into such negotiations) as to any
of same and all sewer and other taxes and charges (collectively the "Real Estate
Taxes") assessed against BSP (Tax Lots Sec. 4 Sheet 03, Lots P, P, P105 and P4B
and Sec. 4 Sheet 7 Lot P 89), which are subject to increase whether the increase
in taxation results from a higher tax rate or an increase in the assessed
valuation of the said property or the imposition of a special assessment against
the property ("Tenant's Tax Contribution"). All such payments shall be
appropriately pro-rated for any partial tax year occurring during the term
hereof. Tenant's Tax Contribution shall be an amount equal to the product
obtained by multiplying the entire amount of Real Estate Taxes by a
25
fraction, the numerator shall be the square footage of the Demised Premises and
the denominator shall be the square footage (including the Demised Premises) of
BSP. Landlord represents, warrants and covenants that, for purpose of
calculating Tenant's Tax Contribution, Tenant's floor area and the floor area of
the Building shall be measured in a consistent manner such that the total share
of all tenants of the Building for purpose of calculating the foregoing expenses
does not exceed 100%. Notwithstanding anything contained herein to the contrary,
costs and fees incurred by Landlord in connection with seeking reductions in or
refunds of Real Estate Taxes, including any costs incurred by Landlord to
challenge the valuation of the Building, may only be included in "Real Estate
Taxes" in the event Landlord actually receives a refund or reduction of Real
Estate Taxes in excess of the costs and fees incurred in seeking such refund
reduction of Real Estate Taxes.
B. Tenant shall pay Owner on the first day of each calendar month during
the term and amount equal to one-twelfth (1/12th) of the amount Owner estimates
from time to time as necessary to pay Tenant's Tax Contribution. Such estimates
shall be based upon actual tax bills to the extent available and Owner's
reasonable estimate of projected increases in the amount of the Real Estate
Taxes. Any such estimate shall be subject to adjustment when the actual amount
of Real Estate Taxes shall be determined, and payment by Tenant to Owner of any
deficiency, or payment by Owner to Tenant for any overpayment, shall be made
within 20 days after delivery by Owner to Tenant of a statement therefore. Only
Owner shall be eligible to institute or prosecute a tax certiorari proceedings
to reduce the assessed valuation of the premises.
The term "Real Estate Taxes" shall not include the following: any tax or
fees payable for air or development rights acquired by Owner or the Building
after the date hereof; interest or penalties imposed by the assessing
authorities; or any real estate taxes imposed or attributable to a period of
time not falling within the term of this lease. If general or special
assessments may be paid in installments over a period of years, only the
installments coming due during the tax year in question shall be included within
the Real Estate Taxes payable by Tenant for such year. Notwithstanding the
foregoing, the term "Real Estate Taxes" shall not mean or include, (i)
municipal, state or federal income taxes assessed against Landlord; municipal,
state or federal estate, succession, corporate, inheritance or transfer taxes of
Landlord; or corporation franchise taxes imposed upon any corporate owner of the
Building; (ii) taxes resulting from or attributable to any assessment for
improvements in excess of building standard relating to tenantable space
occupied by others in the Building; (iii) taxes for which Landlord is reimbursed
by Tenant, or by other tenants of the building under similar provisions of their
leases, including retail tenants, and (iv) any interest or penalties which may
become due by reason of the failure to pay any taxes when the same are due and
payable.
41. Common Area Maintenance
Commencing as of the Commencement Date, Tenant agrees to pay to Owner in
addition to the Base Rent set forth herein, additional rent consisting of
Tenant's Common Area Maintenance Contribution, as determined in accordance with
this Article.
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Section 1. For the purpose of this Article, the following definitions
shall apply:
(a) Tenant's Common Area Maintenance Contribution shall be an amount equal
to the product obtained by multiplying the entire amount of Common Area
Maintenance Expenses by a fraction, the numerator shall be the square footage of
the demised premises and the denominator shall be the square footage (including
the demised premises) of BSP. Landlord represents, warrants and covenants that,
for purposes of calculating Tenant's Common Area Maintenance Contribution,
Tenant's floor area and the floor area of the Building shall be measured in a
consistent manner such that the total share of all tenants of the Building for
purpose of calculating the foregoing expenses does not exceed l00%.
(b) "Common Area Maintenance Expenses" shall mean any or all expenses
incurred by Owner in connection with the operation of the Buildings of which the
Demised Premises forms a part. Common Area Maintenance Expenses shall include,
without being limited thereto, the following: (i) salaries, wages of employees
which Owner may engage in the on-site operation and maintenance of BSP; (ii)
payroll taxes; workmen's compensation; (iii) water waste line maintenance
(including sewer rental) furnished to BSP, together with any taxes on any such
utilities; (iv) the cost of all insurance carried by Owner applicable to the
Building (including, without limitation, primary and excess liability, and
further including vehicle insurance, fire and extended coverage, vandalism and
all broad form coverage including, without limitation, riot, strike, and war
risk insurance, flood insurance, boiler insurance, plate glass insurance and
sign insurance); (v) the cost of all building and cleaning supplies; (vi) the
cost of all charges for service contracts with independent contractors for all
areas of the BSP; (vii) the cost of landscaping, site maintenance and snow
removal (except if Tenant performs snow removal); (viii) taxes (such as sales
and use taxes); (ix) security systems, security personnel and any other costs
and expenses in connection with the operation, maintenance and repair of BSP. In
no event shall the Common Area Expenses be less than $1.50 per sf.
(c) "Common Area Maintenance Expense Statement" shall mean a statement in
writing signed by Owner and delivered to Tenant setting forth the amount of
Common Area Maintenance Contribution which is Tenant's Proportionate Share,
Section 2. The Tenant shall pay to Owner as additional rent for the
Demised Premises on the first day of each calendar month during the term an
amount equal to one twelfth the estimated Tenant's Proportionate Share of such
Common Area Maintenance Contribution.
Section 3. Every Common Area Maintenance Statement given by Owner to
Tenant as set forth herein shall be conclusive and binding upon Tenant unless
(a) within 30 days after the receipt of such statement, Tenant shall notify
Owner that it disputes the correctness thereof specifying the particular
respects in which such statement is claimed to be incorrect, and (b) if such
dispute shall not have been settled by agreement shall submit the dispute to
arbitration. Pending the determination of such dispute by agreement or
arbitration as aforesaid, Tenant shall, within thirty (30) days after receipt of
the Common Area Maintenance Statement, pay additional rent in accordance with
such statement and such payment shall be without prejudice to Tenant's position.
If the dispute shall be determined in Tenant's favor, Owner shall forthwith pay
Tenant the amount of Tenant's overpayment of rents resulting from compliance
with the Common Area Maintenance Expense Statement. Notwithstanding the
foregoing, in no event shall Common
27
Area Maintenance Expense include any of the following (i) legal fees, brokerage
fees, leasing commissions, advertising costs or other related expenses incurred
by Landlord in connection with the leasing of space at the Building, (ii)
repairs, alterations additions, improvements or replacements made to rectify or
correct any defect in the original design, materials or workmanship of the
Building or its common areas, (iii) damage and repairs attributable to fire or
other casualty, (iv) damage and repairs necessitated by the negligence or
willful misconduct of Landlord, its agents, employees or contractors, (v)
executive salaries or salaries of service personnel above the title "Building
Manager", and to the extent that Building personnel with the title of "Building
Manager" or below perform services in connection with the management, operation,
repair or maintenance of several buildings, only the proportionate share
applicable to the Building shall be included, (vi) Landlord's general overhead
expenses not related to the Building, (vii) legal fees, accounting fees and
other fees and expenses incurred in connection with disputes with tenants or
occupants of the Building or associated with the enforcement of the terms of any
leases with tenants, or the defense of Landlord's title to or interest in the
Building, (viii) costs (including permits, licenses and inspection fees)
incurred in renovating or otherwise improving, decorating, painting or altering
space for tenants or other occupants, or of vacant space (excluding common
areas) in the Building, and exclusions include the cost of any additions to the
Building that result in a larger building, including costs for obtaining air
rights or development rights, (ix) costs incurred due to a violation by Landlord
or any other tenant in the Building to the terms and conditions of a lease, (x)
costs of any service provided to tenants or other occupants of the Building for
which Landlord is reimbursed, including, but not limited, to, electricity and
overtime HVAC charges, (xi) any other real estate operating expense or tax,
which, under generally accepted accounting principles, would not be considered
reasonable maintenance and operating expenses, it being agreed by the parties
hereto that Landlord shall not be entitled to (a) collect in excess of 100% of
operating expenses, and (b) recover the cost of any item more than once, (xii)
alterations, additions, improvements or replacements (but not repairs made to
HVAC and any other part of the roof of the Building, (xiii) expenses for
repairs, replacement and general maintenance paid by any proceeds, but not
limited to, insurance or condemnation awards, or other alteration expenses
attributable solely to tenants of the Building, (xiv) interest payments and any
increase in the rate of interest payable to Landlord with respect to any debts
secured by a deed to secure debt or mortgages on the Building, (xv)
amortization, debt service or other payments/loans to Landlord, (xvi)
depreciation of the Building, (xvii) the cost incurred in performing work or
furnishing services for individual tenants in the Building, which work or
services are in excess of work or services provided to Tenant under this Lease,
(xviii) the amount of any rent payable under and pursuant to any ground lease
relating to the Building, (xix) any amount paid by Landlord for items or
services to a corporation or entity controlled or under common control with
Landlord in excess of the then competitive rates for such items or services,
(xx) the cost of installing, operating or maintaining any specialty facility,
such as an observatory, broadcasting facility, restaurant or luncheon club,
athletic or recreational club, theater or cafeteria, or (xxi) the cost of art
work.
42. Additional Rent
A. All of the rent and additional rent hereunder shall be payable directly
to the Owner unless the Owner notifies Tenant otherwise, subject to Tenant's
obligation to subordinate this Lease to the interests of the holder of any
mortgage, ground lease, etc. under Art. 7 and Article 71 of this lease.
28
B. All sums whatsoever not included within rent or additional rent and
payable by Tenant under this Lease shall constitute additional rent and shall be
payable without set-off or deduction, except as so specified elsewhere in this
Lease.
C. Tenant shall have fifteen (15) days from the service of any additional
rent statement to notify Owner, by certified mail, return receipt requested,
that it disputes the correctness of such statement. After the expiration of such
fifteen (15) day period, such statement shall be binding and conclusive upon
Tenant. If Tenant disputes the correctness of any such statement, Tenant shall,
as a condition precedent of its right to contest such correctness, make payment
of the additional rent billed, without prejudice to its position. If such
dispute is finally determined in Tenant's favor, Owner shall refund to Tenant
the amount overpaid.
43. Holdover
A. Tenant hereby indemnifies and agrees to hold Owner harmless from and
against any loss, cost, liability, claim, damage, fine, penalty and expense,
including reasonable attorneys' fees and disbursements, resulting from delay by
Tenant in surrendering the Demised Premises upon the termination of this lease
as provided herein, including any claims made by succeeding tenant or
prospective tenant founded upon such delay.
B. In the event Tenant remains in possession of the Demised Premises after
termination of this lease without the execution of a new lease and without
Owners permission, Tenant, at the option of Owner, shall be deemed to be
occupying the Demised Premises as a tenant from month to month, at a monthly
rental equal to two times the base rent and additional rent payable during the
last month of the term of this lease subject to all the other terms of this
lease insofar as the same are applicable to a month to month tenancy.
44. Glass Entrance and Doors; Plate Glass Insurance
Tenant shall replace, at Tenant's expense, any and all plate glass or
doors or windows including front and rear building entrance doors damaged or
broken by Tenant or its employees, agents or invitees by any cause whatsoever in
and about the Demised Premises. At Owner's written request, Tenant shall provide
to Owner a paid up policy of plate glass insurance, which policy names the Owner
as insured and which covers the glass windows and doors on the premises.
45. Utilities, etc.
Tenant shall pay for all electricity, gas, oil and water consumed on the
Demised Premises or used as part of the heating and air conditioning systems for
the premises. Electricity shall be derived from the Con Edison submeter ▇▇▇▇;
Propane shall be billed by the vendor and paid directly by Tenant. In no event
shall Owner be responsible for service and/or charges for electricity in or to
the Demised Premises. Owner shall not in any way be liable or responsible to
Tenant for any loss or damage or expense which Tenant may sustain or incur if
either the quantity or character of electric service is changed or is no longer
available or suitable for Tenant's requirements. Interruption or curtailment of
such service shall not constitute a constructive or partial eviction nor entitle
Tenant to any compensation or abatement of rent, unless due to the act or
omission of Owner, its employees, agents or contractors.
29
46. Electricity and Heat
A. Supplementing Article 29 of the printed portion of this lease, Owner
shall have the right, at its option, sole discretion and expense, to install or
cause to be installed a new heating system to service the Demised Premises. Upon
the installation of such new heating system and throughout the duration of
Tenant's occupancy of the Demised Premises, Tenant shall keep said system and
all its equipment in good working order and repair at Tenant's own cost and
expense in default of which Owner may cause such system and/or equipment to be
replaced or repaired and collect the cost thereof from Tenant as additional
rent. Tenant agrees to pay for the cost of heating fuel supplied for consumption
at the Demised Premises, as and when bills are rendered, directly to the entity
supplying heating fuel for consumption at the premises, and on default in making
such payment Owner may pay such charges and collect same from Tenant as
additional rent.
B. Further, supplementing Article 29 of the printed form of this Lease,
Owner shall have the right, at its option, sole discretion and expense, to
install or cause to be installed, a meter or sub meter measuring electricity
consumed by Tenant at the Demised Premises. After installation and throughout
the duration of Tenant's occupancy of the Demised Premises, 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 electricity consumed, as shown on said
meter or sub meter as and when bills are rendered, directly to the Owner or
utility providing such service, and on default in making such payment Owner may
pay such charges and collect the same from Tenant as additional rent.
47. Water Charges
If Tenant requires, uses or consumes water for any purpose in addition to
ordinary lavatory purposes (of which fact Tenant appoints Owner to be the sole
judge, but Owner must be reasonable) Owner may install a water meter and thereby
measure Tenant's water consumption for all purposes. Tenant shall pay Owner for
the cost of the meter and the cost of the installation, thereof and throughout
the duration of Tenant's occupancy Tenant shall keep said meter and installation
equipment in good working order and repair at Tenant's own cost and expense in
default of which Owners 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 and when bills are
rendered, and on default in making such payment Owner may pay such charges and
collect the same for Tenants, 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 thereafter is assessed, imposed or a lien upon the Demised
Premises or the realty of which they are part pursuant to law, order or
regulation made or issued in connection with the use, consumption, maintenance
or supply of water, water system or sewage or sewage connection or system.
48. Signs
Tenant shall not install or maintain any sign, symbol or advertisement on
the exterior of the Demised Premises, except on the main directory. All signs
are subject to Owner's prior
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written consent and shall comply with appropriate building codes and municipal
requirements and shall be commercially manufactured (no paper or hand-written
signs). Landlord shall make available to Tenant the directory in the lobby of
the Building for up to three listings without charge to Tenant.
49. Broker
Tenant and Owner mutually acknowledges and represents that they have dealt
with no person or corporation with respect to the negotiation of this Lease.
Each party agrees to indemnify and hold the other harmless from and against any
claims for brokerage commissions or other compensation from any person or
corporations with whom it has dealt. The provisions of this Article 49 shall
survive the expiration date.
50. Indemnity
Tenant will indemnify and save harmless Owner against and from any and all
liabilities, obligations, damages, penalties and claims which may be imposed
upon or incurred by or asserted against Owner arising from injuries to persons
or property in or about the Demised Premises or in areas used by Tenant in
connection with its use of the Demised Premises if due to Tenant's negligence or
fault, including reasonable attorney fees incurred.
51. Insurance
A. Tenant shall obtain and keep in full force at all times commencing with
Tenant's occupancy, and continuing throughout the term, at its own cost and
expense, comprehensive general liability insurance, such insurance to afford
protection initially in an amount of not less than $1,000,000 for injury or
death to any one person, $1,000,000 for injury or death arising out of any one
occurrence, and $500,000 for damage to property, protecting the Owner, and
Tenant as insured against any and all claims for personal injury, death or
property damage occurring in, upon, adjacent to, or in connection with the
Demised Premises and any part thereof and from time to time during the term for
such higher limits, if any, as are currently carried with respect to similar
properties in the area where the Building is located. There shall be added to or
included within such comprehensive general liability insurance all other
coverage's as may be usual to Tenant's use of the Demised Premises, including
without limitation, products and completed operations liability, independent
contractors liability, broad form comprehensive general liability endorsements
and broad form property damage liability. Tenant shall carry at all times:
1. Worker's compensation and employer's liability as required by law, if
applicable.
2. New York State disability benefits liability as required by law, if
applicable.
3. "All Risk" property insurance upon Tenant's Property, including
contents and trade fixtures; such coverage is to be written on a replacement
cost basis and in an amount of not less than 100% of the full replacement value
thereof.
B. All required insurance is to be written by insurance companies licensed
to do business in the State of New York which shall be reasonably satisfactory
to the Owner. The original insurance policies or appropriate certificates shall
be deposited with Owner together
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with any renewals, replacements or endorsements to the end that said insurance
shall be in full force and effect for the benefit of Owner during the term. In
the event Tenant shall fail to procure and place such insurance, the Owner may,
but shall not be obligated to, procure and place same, in which event the amount
of the premium paid shall be remitted by Tenant to Owner upon demand and shall
in each instance be collectible on the first day of the month or any subsequent
month following the date of payment by Owner, as additional rent.
C. All required policies shall include provisions insuring Tenant's
property and business interest in the Demised Premises (business interruption
insurance) against loss, damage or destruction by fire or other casualty, and a
waiver of the insurer's right of subrogation against the Owner, only if
obtainable without additional charge or at all, the Tenant shall so notify the
Owner promptly after learning thereof. In such case if the Owner shall so elect
and shall pay the insurer's additional charge therefor, such waiver shall be
included in the policy. Each policy which shall contain agreements by the
insurer that the policy will not be materially changed, amended or canceled
without at least twenty (20) days prior notice to Owner, and that the act or
omission of one insured will not invalidate the policy as to the other insured.
D. There shall be maintained deductibles in such amounts as Tenant shall
reasonably determine but in no event in excess of $5,000.00 with respect to a
property insurance policy and in no event in excess of $5,000.00 with respect to
a liability insurance policy.
E. At least 10 days prior to commencement of construction of any work in
the Demised Premises, Tenant and Tenant's contractor shall deliver to Owner (and
Owner's mortgagees, if required by them) certificates of insurance or policies
required by evidencing all insurance coverages provided in this Article.
Tenant's contractor shall be required to comply with all of such insurance
obligations only through final completion of all such work.
F. Except for insurance for Tenant's trade fixtures and personal property
at the premises, all property insurance policies shall cover the interest of
Tenant, Owner, and/or Owner's mortgagees, as their interest may appear, and the
policies therefor shall provide that adjustment of any losses thereunder shall
include in the negotiation, not be settled or finalized without, and be payable
to, Owner and Owner's mortgagees. All such property insurance policies shall
contain a provision allowing other insurance that is provided to or for Owner.
G. All policies of insurance maintained by Tenant under this Article shall
be written as primary policies not contributing with, nor in excess of,
insurance coverage that Owner and its mortgagees may have. Tenant shall not
carry separate or additional insurance which, in the event of any loss or
damage, is concurrent in form or would contribute with the insurance required to
be maintained by Tenant under this Lease.
H. If Tenant shall not insure for business interruption, or, to the extent
that Tenant shall be a self insurer (including, without any limitation, any
deductible under any insurance policy) Tenant agrees that Owner shall be
released, and Tenant hereby releases Owner, from business interruption loss
which could have been covered by an insurance policy if Tenant had chosen to
purchase one.
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52. Maintenance
A. Other than as elsewhere provided herein, Tenant is responsible for all
costs associated with the maintenance of the Demised Premises and in keeping the
Demised Premises in a proper manner and in a general state of cleanliness and
repair.
B. Tenant shall, at its own sole cost and expense, maintain and keep in
good order, condition and repair, all mechanical items, the use of which is
included herein or is required for the permitted use of the Demised Premises by
the health and building codes of the Village of Irvington, Town of Greenburgh or
Westchester County, as well as hot water heater, vents and ducts located within
the Demised Premises.
C. Owner shall be responsible for all structural repairs to the Building,
unless such repairs are necessitated by Tenant's acts or negligence, including
the acts or negligence of its agents or employees.
53. Owner's Costs To Approve Or Consent
If Tenant requests Owner's approval or consent to alterations, additions,
improvements, or assignment or any other matter or thing requiring Owner's
consent or approval under this Lease, and if in connection with such request
Owner seeks the advice of its attorneys, architect and/or engineer, then Owner,
as conditions precedent to granting its consent or approval, may require that
the Tenant pay the reasonable fee of Owner's attorneys, architect and/or
engineer in connection with the consideration of such request and/or the
preparation of any documents pertaining thereto not to exceed $500 per request,
unless extraordinary services are required by the nature of the proposed
alteration and only after prior written notice to Tenant.
54. Use and Operation
A. The Demised Premises shall be used for office use and no other purposes
(including use of kitchenette).
B. Any change from substantially the use as described herein without
Landlord's prior written consent not to be unreasonably withheld shall
constitute a default under this Lease.
C. The Tenant shall not suffer or permit the Demised Premises to be used
in any manner, or anything to be done therein, or suffer or permit anything to
be brought into or kept therein, which would in any way (i) result in the
Demised Premises not being operated in a manner consistent with a first-class,
high quality office or which would be inconsistent with the nature and the
operation of the building, or (ii) constitute a public or private nuisance.
55. Breach by Tenant
A. In the event of a breach by Tenant of any of the covenants or
provisions of this Lease, Owner shall have the right to enjoin any such breach.
B. Any and all rights and remedies which Owner may have under this Lease
and at law or in equity, shall be cumulative and shall not be deemed
inconsistent with each other, and
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any two or more or all of said rights and remedies may be exercised at the same
time or at different time and from time to time. If any of the aforesaid
provisions or any other provision of this lease shall be unenforceable or void,
said provision shall be deemed eliminated and of no force and effect and the
balance of this Lease shall continue in full force and effect. If any notice is
required by law to be given, such notice shall be given.
C. The Tenant covenants and agrees to pay on demand Owner's reasonable,
out-of-pocket expenses, including reasonable attorneys' fees and disbursements,
incurred in enforcing any obligation of the Tenant under the Lease or in curing
any default by Tenant under this Lease.
D. The Owner shall have a lien on Tenant's interest in this Lease to
secure the payment and performance of Tenant's obligations hereunder.
Furthermore, to secure: (1) the payment of all base rent and additional rent;
and (ii) Tenant's performance of all of its obligations under this Lease. Tenant
grants to Owner an express first and prior lien and security interest in all
inventory, equipment, fixtures and other personal property ("FF&E") which are
and may be placed in the Demised Premises after the date hereof, and the
proceeds thereof, and upon all proceeds of an insurance which may accrue to
Tenant by reason of the destruction or damage of any such property provided that
Landlord agrees that such lien shall be subordinate to any lien arising in
connection with Tenant's purchase of FF&E. Tenant will not remove such property
in which Owner has an interest as provided herein (except Tenant may remove
items of inventory in the ordinary course of business if it replaces them at the
Premises with similar items of inventory and Tenant may remove equipment,
fixtures and their personal property if same is replaced at the premises by
property of like quality and equivalent value) without the prior written consent
of Owner until Owner shall have released its lien, or this Lease is terminated
for reasons of Owner's default as determined by a court of competent
jurisdiction, or the termination of such security interest as provided in this
Lease, whichever first occurs. Tenant waives the benefit of all exemption laws
in favor of such lien and security interest. This lien and security interest is
given in addition to Owner's statutory lien and is cumulative with it. Upon the
occurrence of a default, which default is not cured within the applicable cure
period, these liens may be foreclosed with or without court proceedings by
public or private sale, so long as Owner gives Tenant at least fifteen (15) days
written notice of the time and place of the sale. Owner will have the right to
become the purchaser if it is the highest bidder at such sale. Contemporaneous
with its execution of this Lease (and if requested after such execution by
Owner), Tenant will execute and deliver to Owner Uniform Commercial Code
Financing statements in form and substance sufficient (upon proper filing) to
perfect the security interest granted in this section. If requested by Owner,
Tenant also will execute and deliver to Owner Uniform Commercial Code
continuation statements in form and substance sufficient to reflect any proper
amendment of, modification in, or extension of the security interest granted in
this section. This Section shall constitute a "security agreement" as said term
is defined in the New York Uniform Commercial Code.
The security interest and lien created by this subparagraph shall
terminate, and Owner shall deliver to Tenant one or more UCC-3 termination
statements terminating such lien, upon the earlier of:
(i) The termination of this Lease by reason of Owner's default as
determined by a court of competent jurisdiction; or
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(ii) the termination or other expiration of this Lease pursuant to its
terms.
E. Additionally, should the Premises not be occupied for a period of in
excess of 120 consecutive days, it shall be a non-curable default hereunder.
Notwithstanding foregoing, if the Premises are closed by reason of a fire or
other casualty, then the provisions herein shall not apply, unless the same
would result in the loss of the present use for the Premises.
56. Additional Services
A. Except as otherwise provided in this Lease, Tenant covenants and agrees
that, in the event any law, rule regulation or judicial determination has the
effect of increasing any of the services to be furnished by Owner hereunder,
Tenant agrees to pay to Owner, as additional rent, the cost incurred or to be
incurred by Owner to provide such additional service to Tenant or Tenant's pro
rata share if provided to other Tenants.
B. If any sales or use tax shall be imposed upon Owner in connection with
any of the services to be provided by Owner hereunder, Tenant shall pay to
Owner, as additional rent, its proportionate share of the amount of such tax.
57. Refuse
A. Tenant shall at all times keep the areas used by Tenant for ingress and
egress to the Demised Premises free and clear of all dirt, garbage, rubbish,
refuse (which such term "refuse" as used in the Lease shall mean and include
crates, boxes, merchandise, containers, bottles, paper, food and similar items),
snow and ice.
B. Tenant shall accumulate all garbage, rubbish and refuse for disposal
only within the interior of the Demised Premises and not in the common or
services area and in areas therein kept closed by a door and in well-covered
sanitary containers designed to prevent odors from emanating therefrom. No such
garbage, rubbish or refuse shall be removed, or be permitted to be removed, from
the interior of the Demised Premises, except in accordance with local law and
Building Rules and Regulations. Except as otherwise provided in this Lease,
Tenant shall be responsible for all costs and expenses in connection with
Tenant's garbage removal. Tenant shall also comply with all laws and ordinances
with regard to its garbage removal and be responsible for any breach thereof.
58. Exterminator
Tenant shall use its commercially reasonable efforts, at its sole cost and
expense to keep the Premises free from vermin, rodents, or anything of like,
objectionable nature which emanates from the Premises or is caused by Tenant's
use of the Premises, and shall employ only licensed exterminator at the request
of Owner.
59. Owner's Limited Liability
Anything in this Lease to the contrary notwithstanding, Tenant for itself,
its successors and assigns, covenants and agrees that the liability of the Owner
shall be limited so that only the assets and interest of the Owner in and to
One-Two Bridge Street, and the ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, shall be available and/or liable for the
satisfaction, or security for payment of any judgment, or claim against Owner or
any indebtedness of Owner arising from any default by Owner.
Tenant for itself, its successors and assigns, covenants and agrees that
no other assets of any of the principals of Owner whether owned by them jointly
or severally, directly or indirectly, shall be liable to pay or satisfy any such
judgment, claim, demand or indebtedness arising from any default by Owner.
60. Late Payment
If Tenant shall fail to pay any installment of base rent or any amount of
additional rent for more than ten (10) days after the same shall have become due
and payable, Tenant shall pay Owner a late charge of four cents for each dollar
of the amount of such base rent or additional rent as shall not have been paid
to Owner within such ten (10) days after becoming due and payable. Such late
charges shall be without prejudice to any of Owner's rights and remedies
hereunder or at law or in equity for nonpayment or late payment of rent and
shall be in addition thereto.
61. Alteration
In the event that the Tenant shall make any alterations resulting in the
demolition of any part of the structural portions or interior or exterior of the
premises, then said alterations shall be made only with the consent of the
Owner, in writing and the Tenant shall pay additional security to the Owner
equal to the amount necessary to restore the Premises to its original condition
at the time the Tenant took occupancy. Ordinary alterations not of a permanent
nature which are necessary for the conduct of the business of the Tenant, which
do not involve demolition as aforesaid, shall not require Owner's consent.
62. Tenant's Additional Covenants
(i) Tenant shall not change the exterior architecture (whether by
alteration, replacement, rebuilding or otherwise) the exterior color and/or
architectural treatment of the Demised Premises or of the building or any part
thereof.
(ii) Tenant shall not use the plumbing facilities for any purpose other
than that for which they were constructed, or dispose of any garbage or other
foreign substance therein, whether through the utilization of so-called
"disposal" or similar units, or otherwise. The plumbing facilities shall not be
used for refrigeration purposes or for any other purposes other than that for
which they are constructed, no foreign substance of any kind shall be thrown
therein, and the expense of any breakage, stoppage, or damage resulting from a
violation of this provision shall be borne by Tenant:
(iii) Tenant shall not subject any fixtures or equipment in or on the
Demised Premises which are affixed to the realty, to any mortgage, liens,
conditional sales agreements, security interest or encumbrances, except as is
otherwise permitted hereunder; Notwithstanding the foregoing, Tenant shall have
the right to lease office equipment and supplies in the ordinary
36
course of Tenant's business, and shall have the right to grant liens and to
enter security agreements and conditional sales agreements in connection
therewith.
(iv) Tenant shall not suffer, allow or permit any odor or any noise,
vibration or other effect to constitute a nuisance or otherwise interfere with
the safety, comfort or convenience of Owner or other tenants in the Building.
63. Security
Supplementing the provisions of Article 31, Tenant has deposited with
Owner the sum of $135,975.00 (of which $$28,000 shall be paid on or before
November 1, 2000, the occupancy date for Suite 109) as security hereunder, with
a cash deposit. Tenant shall increase the security in accordance with and at the
same time base rent increases are effective hereunder so that 3 month's base
rent shall be on deposit at all times. If at any time Tenant shall be in default
in the payment of rent or in the keeping, observance or performance of any other
covenant, agreement, term, provision or condition beyond all applicable notice
and grace periods, Owner may at its election apply the security so on deposit
with Owner, to the payment of any such rent or to the payment of the costs
incurred or to be incurred by Owner in curing such default, as the case may be.
If, as a result of any such application of all or any part of such security, the
amount of security so on deposit with Owner shall be less than required, Tenant
shall forthwith deposit with Owner an amount equal to the deficiency. If at the
expiration of the term of this lease Tenants shall not be in default in the
keeping, observance or performance of any such other covenant, agreement, term,
provision or condition, then Owner shall promptly return to Tenant said
security, if any, then on deposit with Owner.
64. Improvements
All improvements, changes and alterations made by or on behalf of Tenant
in and/or to the Demised Premises shall, upon installation, become the property
of Owner and shall be surrendered by Tenant to Owner at the expiration or sooner
termination of the term of this Lease, except for items of personality not
affixed to the realty and Tenant's trade fixtures, which shall at all times be
property of Tenant. If any security interest, chattel mortgage or other lien or
encumbrance shall attach to the Tenant's Initial Improvements or any change,
improvement or alteration thereto Tenant will, at Tenant's sole cost and
expense, promptly cause same to be released of record within thirty (30) days
after notice of the attachment thereof, failing which Owner may cause same to be
released by payment, bond or otherwise, as Owner may elect, and Tenant will
reimburse Owner for all reasonable costs and expenses incidental to the removal
of any such lien, security interest, chattel mortgage or other lien or
encumbrance incurred by Owner. Upon failure of Tenant to so reimburse Owner at
its option shall become Owner thereof. Tenant further covenants and agree that,
prior to opening for business at the Demised Premises, the entire cost of all
changes, improvements and alterations made by or on behalf of Tenant at Tenant's
expense will be fully paid for. In the event Tenant purchases furnishings or
equipment for the premises on installment or under a conditional sales
agreement, Tenant will provide in such installment or conditional sale
agreement, that in the event of Tenant's default, Owner at its option shall be
entitled to have an assignment of Tenant's interest in said furnishings or
equipment, it being intended that Tenant may not remove any leased improvements
if Owner elects to pay the debt and assume an assignment of Tenant's interest.
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65. Miscellaneous
A. If any of the provisions of this Lease, or the application thereof to
any person or circumstances, shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such provision or provisions
to persons or circumstances other than those as to whom or which it is held
invalid or unenforceable, shall not be affected thereby, and every provision of
this Lease shall be valid and enforceable to the fullest extent permitted by
law. Each covenant, agreement, obligation or other provision of this Lease on
Tenant's part to be performed, shall be deemed and construed as a separate and
independent covenant of Tenant, not dependent on any other provision of this
Lease.
B. This Lease shall be governed in all respects by the laws of the State
of New York.
C. Except as otherwise provided in this Lease, without incurring any
liability to Tenant, Owner may permit access to the Demised Premise and open the
same, whether or not Tenant shall be present, upon demand of any receiver,
trustee, assignee for the benefit of creditors, sheriff, ▇▇▇▇▇▇▇▇ or court
officer entitled to, or reasonably purporting to be entitled to, such access for
the purpose of taking possession of, or removing Tenant's property or for any
other lawful purpose (but this provision and any action by Owner hereunder shall
not be deemed a recognition by Owner that the person or official making such
demand has any right or in or to this Lease, or in or to the Demised Premises),
or upon demand of any representative of the fire, police, building, sanitation
or other department of the city, state or federal governments.
D. Tenant agrees that its sole remedies in cases where Owner's
reasonableness in exercising its judgment or withholding its consent or approval
is applicable pursuant to a specific provision of this Lease, or any rider or
separate agreement relating to this Lease, if any, shall be those in the nature
of an injunction, declaratory judgment, or specific performance, the rights to
money damages or other remedies being hereby specifically waived, unless Owner
has acted in bad faith.
E. This Lease shall not be binding upon Owner unless and until it is
signed by Owner and a fully executed copy thereof is delivered to Tenant.
F. This Lease shall be construed without regard to any presumption or
other rule requiring construction against the party causing this Lease, or any
part thereof to be drafted.
66. Condition of Demised Premises
A. Supplementing the provisions of Article 15 hereof Owner makes no
representations as to the size of the Demised Premises. Tenant shall give proper
notice to the other of any notice it receives of the violation of any law or
requirement of any public authority with respect to the Demised Premises or the
use or occupation thereof. If any governmental authority having jurisdiction
over the Demised Premises shall require additional fire fighting equipment,
Tenant agrees to install and maintain such equipment at its sole cost and
expense. Notwithstanding the foregoing, Owner represents and warrants to Tenant
that the Permitted use falls within the uses permitted under current zoning of
the Building, and does not violate the terms of any mortgage, ground lease or
other superior interest to which this lease is subordinate.
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B. Tenant covenants and agrees to conduct its business at the Demised
Premises so as to prevent any noxious or offensive odors from said Demised
Premises and Tenant further covenants and agrees to install, operate and
maintain proper and sufficient flue, ventilating and exhaust systems and any
other equipment, electrical and/or mechanical or any kind, all at Tenant's sole
cost and expense, as deemed necessary or desirable to prevent or ▇▇▇▇▇ such
odors, and in full compliance with all laws, codes, resolution, rules,
regulations of the Premises and otherwise, requirements and recommendations of
all governmental and quasi-governmental agencies or authorities, only to the
extent such odors and/or fumes are caused by Tenant.
67. Notice
Any ▇▇▇▇, notice or other communication which either party may desire or
be required to give to the other under this lease shall be deemed sufficiently
given or rendered if in writing and delivered by registered or certified mail,
return receipt requested, as follows:
1. From Owner to Tenant at: 2. From Tenant to Owner at:
iWon, Inc. Bridge Street Properties, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Either party shall have the right to substitute addresses for such notices
upon prior written notice to the other given in the manner hereinabove set
forth.
68. Assignment and Subletting
A. Tenant shall have the unrestricted right to assign, sublet, license or
transfer (hereinafter collectively "Transfer") any or all of its rights and
privileges under the lease to an Affiliate (as defined below), provided that no
such Transfer shall operate to relieve Tenant of its obligations under the
lease, including the payment of Rent and other charges. For the purposes of this
section, "Affiliate" shall mean any subsidiary or parent entity of Tenant. The
consent by Landlord to any other Transfer to an entity that is not an Affiliate
shall not be unreasonable withheld, conditioned or delayed. Notwithstanding the
foregoing, the issuance, sale, purchase or other disposition of the shares of
Tenant or any Affiliate of Tenant, any merger or consolidation by Tenant or any
Affiliate of Tenant, or any change in control, directors, management or
organization of Tenant or any Affiliate of Tenant shall not be deemed to be a
Transfer requiring the consent of Landlord.
B. Each time Tenant desires to assign this Lease or sublease its interest
in the Demised Premises, it shall submit in writing to Owner (i) the name and
address of the proposed assignee or sublessee, (ii) a counterpart of the
proposed agreement or sublease, (iii) information satisfactory to Owner as to
the nature and character of the business of the proposed assignee or sublessee,
and (iv) biographical, banking, financial, credit and other information relating
to the proposed assignee or sublessee reasonably sufficient to enable Owner to
determine the character and financial responsibility of the proposed assignee or
sublessee to the extent obtainable by Tenant. Any such consent of Owner shall be
subject to the terms of this paragraph and conditioned upon (1) there being no
default by Tenant under any of the terms, covenants and
39
conditions of this Lease at the time that Owner's consent is requested and on
the date of the commencement of the term of any sublease or the effective date
of any such proposed assignment, (ii) delivery to Owner of a written statement
duly executed by Tenant acknowledging that Tenant shall continue to remain
directly and primarily liable to Owner under this lease for the remaining term
notwithstanding such sublease or assignment, (iii) the proposed use by such
assignee or sublessee being in compliance with Articles 2 and 15 of the printed
form of this lease, (iv) Tenant paying Owner the reasonable cost and expenses,
including architect's engineer's and attorneys' and brokerage fees, incurred by
Owner with respect to such subletting. Further, and as an additional condition
to Owner's approval of any sublease, Tenant shall remit to Owner fifty (50%)
percent of any and all rent and additional rent Tenant receives, pursuant to the
sublease, in excess of the rent and additional rent provided for in this lease
as increased pursuant to subparagraph (v) hereof. The additional security
deposit required under clause (ii) shall be made each time there shall be an
assignment or sublease during the term of this lease.
C. Upon receiving Owner's written consent, Tenant shall deliver to Owner
within ten (10) days after execution thereof a true copy of the duly executed
sublease or assignment agreement. Any such sublease shall provide that the
sublessee shall be subject to and shall comply with all applicable terms and
conditions of this lease to be performed by Tenant hereunder.
D. Any proposed assignee or subtenant shall be a bona fide operating
entity whose demonstrated net worth shall be no less than 90% of the net worth
of Tenant as shown on the previous years Financial Statements provided to Owner
pursuant to the provisions of Paragraph 83.
69. No Recording
Tenant expressly warrants and represents that it will not record this
lease, but Owner will, upon Tenant's request and at Tenant's cost, execute a
memorandum of lease which Tenant may record at its expense.
70. Attorneys Fees & Reimbursement
A. Notwithstanding anything to the contrary contained in this lease,
Tenant shall reimburse Owner for the expenses of reasonable attorney's fees, and
disbursements Owner incurs which arise out of or are caused by (a) Tenant's
default or threatened default under the terms of this lease, whether an action,
suit or proceeding is commenced based upon such default; or (b) Tenant's request
of Owner to review or execute documents, including without limitation
assignment, sublease or occupancy documents in connection with this Lease. Any
such reimbursement shall be deemed additional rent due from Tenant.
B. Further, Tenant shall reimburse Owner, as additional rent, for all
reasonable fees, charges and disbursements of attorneys, architects engineers or
other representatives or agents incurred by Owner and arising out or resulting
from Tenant's alteration or improvements, propose or actual, to the prudent or
advisable to seek professional advise or expertise with respect to this lease
and Tenant's occupancy of the Demise Premises.
40
71. Attornment
If the Demised Premises, Building or land where the Building is located is
or will be encumbered by a mortgage, and the mortgage is foreclosed, or if the
Demised Premises, Building or property is sold pursuant to a foreclosure or by
reason of a default under a mortgage, the following shall apply notwithstanding
the foreclosure, the sale, or the default: (i) Tenant shall not disaffirm this
lease or any of its obligations under this lease; (ii) at the request of the
applicable mortgagee or purchaser at a foreclosure or sale, Tenant shall attorn
to the mortgagee or purchaser and execute a new lease for the Demised Premises
setting forth all the provisions of this lease except that the term of the new
lease shall be for the balance of this lease. In confirmation of this
attornment, Tenant shall promptly execute and deliver at its own cost and
expense, any instrument, in recordable form, if required, that Owner or any
mortgagee may request to evidence such attornment. Notwithstanding anything
contained in the contrary in Articles 7 and 71 of this Lease, provided that a
trustee, mortgagee or holder of a mortgage on the Building ("Mortgagee"), or it
successors and/or assigns, shall execute and deliver to Tenant an agreement to
the effect that, if there shall be a foreclosure of its mortgage, such Mortgagee
will not make Tenant a party defendant to such foreclosure, evict Tenant,
disturb Tenant's possession under this Lease, or terminate or disturb Tenant's
leasehold estate or rights hereunder, and will recognize Tenant as the direct
Tenant of such Mortgagee on the same terms and conditions as are contained in
this Lease, subject to the provisions hereinafter set forth, provided no Event
of Default shall have occurred and be continuing hereunder beyond any applicable
notice and cure period (any such agreement being referred to as a
"Nondisturbance Agreement"), this Lease shall he subject and subordinate to such
mortgage. This clause shall be self-operative and no further instrument of
subordination shall be required from Tenant to make the interest on any
Mortgagee superior to the interest of Tenant hereunder.
72. Additional Remedies
In the event that Owner shall pay any sum of money or do any act which
shall require the expenditure of any sums by reason of the failure of Tenant to
perform any of the covenants, terms or conditions contained in this lease,
Tenant covenants to repay immediately such sums to Owner within 20 days after
demand, together with interest thereon at the rate of twelve (12%) percent per
annum shall be added as additional rent to the next monthly installment of base
rent becoming due. Nothing contained herein shall be construed to postpone the
right of Owner immediately upon expending such sums, to collect such sums, with
interest at the aforesaid rate, by action or otherwise.
73. Mortgages
If, in connection with obtaining, continuing or renewing financing for
which the Demised Premises, Building or land or any interest therein represents
collateral in whole or in part, a lender or other mortgagee shall request
modifications of this lease as a condition of financing, Tenant will not
unreasonably withhold or delay its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder or adversely
affect the Tenant's leasehold interest created hereunder or decrease the size of
the demised premises.
41
74. Demised Premises
If the general location, size and layout of the Demised Premises are
outlined in Exhibit A, such Exhibit A shall not be deemed to be a warranty,
representation or agreement on the part of Owner that the Demised Premises and
the Building are as indicated thereon. Nothing in this lease shall be construed
as a grant or demise by Owner to Tenant of the roof except as otherwise provided
in this Lease or exterior wall of the Building, of the space above and/or below
the Demised Premises, of the parcel of land on which the Demised Premises is
located, and/or any parking or other areas adjacent to the Building.
75. Owner's Consent
If in this lease it is provided that Owner's consent or approval as to any
matter will not be unreasonably withheld, and it is established by a court or
body having final jurisdiction thereof that Owner has been unreasonable, the
only effect of such finding shall be that Owner shall be deemed to have given
its consent or approval, but Owner shall not be liable to Tenant or any third
party in any respect for money damage by reason of withholding its consent,
unless Owner's refusal to grant consent or approval was done in bad faith.
76. No Liens
Notwithstanding anything contained in this lease to the contrary, Tenant
covenants and warrants that it shall not directly or indirectly create or permit
or suffer to be created or to remain, and will within thirty (30) days after
notice thereof discharge or cause to be discharged any mortgage, lien,
encumbrance or charge on pledge of, security interest in or conditional sale or
other title retention agreement with respect to the Demised Premises, except as
expressly permitted elsewhere in this Lease.
77. Parking
A. Owner shall provide Tenant, at no cost to Tenant, for the convenience
of its employees and invitees during regular business hours, 58 non-specified
parking space(s) located in area or areas adjacent to ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, designated by notice sent by Owner from time
to time throughout the term of this Lease. Owner reserves the express right to
change the location of these parking spaces as in its sole discretion it deems
appropriate from time to time. Tenant's privilege and use of these parking
spaces are subject to the Owner's rules and regulations as set forth herein or
as otherwise established by Owner and in conformity with all local rules,
regulations and ordinances of the Village of Irvington and any other government
entity having jurisdiction over the premises.
B. Tenant covenants and agrees that its employees and invitees shall not
at any time cause any vehicle to be parked, placed or remain within and along
the perimeter of the Building, including any and all fire lanes, parking spaces
and areas, roadway and driveways or any other area controlled by Owner, except
in areas designated by Owner for Tenant's use.
C. Use of all parking spaces and any other parking areas, roadways and
driveways by Tenant, its employees or invitees will be at their own risk, and
Owner shall not be liable for any injury to person or property, or for loss of
damage to any automobile or its contents, resulting
42
from theft, collision, vandalism or any other cause whatsoever. Owner shall have
no obligation whatsoever to provide a security guard or any other personnel or
device to patrol, illuminate, monitor, guard or secure any parking area. If,
however, Owner does so provide such guard, personnel or device, it shall be
solely for Owner's convenience, and Owner shall not be liable for any act or
omission of such guard, personnel or device in failing to prevent any such
theft, vandalism, loss injury or damage.
D. There shall be no overnight parking. Tenant shall cause its employees
and invitees to remove their automobiles from all parking areas at the end of
the working day. If any vehicle owned or used by Tenant, its employees or
invitees remains in any parking area, all costs, expenses and liabilities
incurred by Owner in removing said vehicle, or any damages resulting to such
vehicle or to Tenant's property or property of others by reason of the presence
or removal of such vehicle shall be paid by Tenant to Owner as additional rent
as and when billed by Owner.
E. If space is available, Owner agrees to provide Tenant with an
unspecified number of additional parking spaces in consideration of Tenant's
payment of additional rent at the rate of $75.00 per space per month ("Parking
rent") upon the same terms and conditions as set forth in this Paragraph.
Notwithstanding the foregoing, at the end of the first year of the term of this
lease, the number of parking spaces and parking rent may be increases or
decreased at the discretion of the Owner. Each such installment of additional
rent shall be remitted at the same time and in the same manner as installments
of base annual rent.
78. Condemnation
A. If less than fifty (50%) percent of the Demised Premises is taken by
condemnation or in any other manner for any public or quasi public use or
purpose, then Owner may elect to terminate this Lease by written notice sent to
Tenant not more than sixty (60) days after the taking. Upon the date specified
in such notice of termination, which date shall not be later than sixty (60)
days after the date of such notice, the terms of this Lease shall terminate.
B. If Owner does not so elect to terminate the lease in the event of a
taking of less than 50% of the Demised Premises, the term of this Lease shall
continue as to the part of the Demised Premises not taken. However, effective
the date of the taking, the base annual rent shall be reduced by a fraction, the
numerator of which is the area in square feet of the part of the Demised
Premises taken and the denominator of which is the area of the Demised Premises
immediately prior to such taking. All other provisions and conditions of the
Lease shall remain in full force at its expense shall proceed with reasonable
diligence to repair, alter and restore the remaining part of the Demised
Premises to substantially its former condition to the extent the same may be
feasible and so as to constitute a complete and tenable Demised Premises.
79. Force Majeure
Time for performance by Owner and Tenant of any term, provision or
covenant of this lease shall be deemed extended by time lost due to delays
resulting from acts of God, strikes, unavailability of materials, civil riots,
floods, material or labor restrictions, by government
43
authority and any other cause not within the reasonable control of Owner.
Financial inability of either party shall not constitute a cause for delay
hereunder.
80. Notice of Available Space
If Landlord shall have knowledge of the availability of any space at the
complex of buildings of which the Demised Premises forms a part, it shall give
Tenant notice of such availability and an opportunity to rent such space on such
terms as the Landlord shall offer.
81. First Option
Subject to the right of the existing tenant (▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.) to lease
space in the proposed development of Two Bridge Street, Tenant shall have right
to make the first offer to lease no less than 20,000 square feet and no more
than 25,000 square feet, but in no event less than the rentable square footage
of the premises then under lease to the Tenant pursuant to this Lease. The
rental rate for such space shall be $25.00 per square foot, net of additional
rent for common area maintenance charges, real estate taxes and Tenant
electricity. Such space shall include water views, but not all space included
shall necessarily have water views. In the event a Lease for such premises is
entered by the parties, this Lease shall be terminated.
82. Assignment Subletting
Tenant shall not assign this Lease but shall have the right to Assign or
Sublease or otherwise permit occupancy of all or any portion of Tenant's
premises to any related entity or affiliate of Tenant whether by merger or
consolidation or to any successor entity, subject to Landlord' consent, which
shall not be unreasonably withheld, provided such entity furnishes certified
financial statements which satisfy a "net worth" test. Tenant shall not assign
this Lease but shall have the right to sublease or otherwise permit occupancy of
all or any portion of Tenant's premises to an unrelated entity, subject to
Landlord's consent which shall not be unreasonably withheld, provided such
entity furnished certified financial statements which demonstrate a level of
financial stability no less than that of Tenant.
83. Financial Statements
Each year during the term hereof, within 90 days after the end of Tenant's
fiscal year, Tenant and its successor and assigns shall supply Owner with
Tenant's annual Financial Statements showing Income and Expenses and Net Worth
prepared in the ordinary course of Tenant's (or its successors and assigns)
business by Tenant's internal bookkeeping department or accountants, as the case
may be.
84. Renewal Option
If Tenant is not in default of this Lease it may exercise a renewal option
for one additional five (5) year term by giving Owner written notice of exercise
of the option not more than twelve (12) nor less than eight (8)months prior to
the lease expiration date (July 31, 2004). Rent for the first year of the
Renewal Period shall be 5% more than the Rent for the last year of the initial
term, with rent increasing by 3% for each additional year of the Renewal Term.
44
85. Satellite Antenna
Tenant may, at its sole cost and expense, install and maintain a satellite
television antenna for television reception, subject to Landlord's approval as
to location.
86. Density Ratios
Tenant shall comply with density ratios such that occupancy shall not
exceed 10 persons for each 1,000 square feet, provided, however, that the
density ratio shall be reduced to no more than eight persons per 1,000 square
feet if required by the local municipality, in which event egress modifications
shall be made to permit a density ratio of ten per 1,000 square feet, with the
cost of such modifications to be shared by the Landlord and Tenant in
proportions to be agreed upon.
Owner
BRIDGE STREET PROPERTIES, LLC
One Bridge Street Corp., Manager
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
Tenant
IWON, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CEO
45
EXHIBIT A
iWON
$ per s.f.
Year 1 21.00 9/1/99 - 8/31/00
Year 2 22.26 9/1/00 - 8/31/01
Year 3 23.60 9/1/01 - 8/31/02
Year 4 25.01 9/1/02 - 8/31/03
Year 5 26.51 9/1/03 - 8/31/04
Rent
Suite Sq. Footage Year 1 Year 2 Year 3 Year 4
42 5,715 10,001.25 10,601.33 11,239.50 11,911.01
121 2,750 4,812.50 5,101.25 5,408.33 5,731.46
30 2,910 5,092.50 5,398.05 5,723.00 6,064.93
112 1,200 2,100.00 2,226.00 2,360.00 2,501.00
34 2,850 4,987.50 5,286.75 5,605.00 5,939.88
109 4,000 7,000.00 7,420.00 7,866.67 8,336.67
33,993.75 36,033.38 38,202.50 40,484.94
Security Deposit (equal to 4 months rent)
Suite Year 1 Year 2
42 40,005.00 42,405.30
121 19,250.00 20,405.00
30 20,370.00 21,592.20
112 8,400.00 8,904.00
34 19,950.00 21,147.00
109 29,680.00
107,975.00 144,133.50
EXHIBIT A-1
IWON
$ per s.f.
Year 1 21.00 9/1/99 - 8/31/00
Year 2 22.26 9/1/00 - 8/31/01
Year 3 23.60 9/1/01 - 8/31/02
year 4 25.01 9/1/02 - 8/31/03
year 5 26.51 9/1/03 - 8/31/04
Suite Sq. Footage Year 1 Year 2 Year 3 Year 4 Year 5
42 5,715 10,001.25 10,601.33 11,239.50 11,911.01 12,625.39
121 2,750 4,812.50 5,101.25 5,408.33 5,731.46 6,075.21
30 2,910 5,092.50 5,398.05 5,723.00 6,064.93 6,428.68
112 1,200 2,100.00 2,226.00 2,360.00 2,501.00 2,651.00
34 2,850 4,987.50 5,286.75 5,605.00 5,939.88 6,296.13
109* 4,000 7,000.00 7,420.00 7,866.67 8,336.67 8,836.67
33,993.75 36,033.38 38,202.50 40,484.94 42,913.06
*Suite 109 will be added on November 1, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
PROPERTIES
Date: 2/7/00
From: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
To: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇
Subject: Selling relocation to Suite #77
Bridge Street Properties will be responsible for the following:
1. New heating and air conditioning
2. Finish front and rear entrance ways in the same manner as NW Direct
3. Finish all interior demising walls to include boxing in the major
piping on the ceiling.
4. Install a powder room.
5. Provide base electric and lighting in the demised space.
6. Install our standard grade carpet throughout.
7. Paint demising partitions one color.
iwon will be responsible for the following:
1. Construction budget for Selling Communication of $35,000 - this
budget will include one additional bathroom. The quality of
craftsmanship and materials used will be of the same quality as
represented in suite #121. This estimate is based on a similar
office plan as represented in suite #121.
2. Computer and telephone wiring as represented in suite #121.
3. Physical moving expenses of the office, a turnkey move.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Bridge Street Properties ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Iwon ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Selling Communications ▇▇▇▇▇ ▇▇▇▇▇▇
SECOND AMENDMENT TO CTC
BULLDOG INC. LEASE
The amendment is made the 27th day of January, 2000, by and between Bridge
Street Properties, LLC, a New York Limited Liability Corporation having an
office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and CTC Bulldog, Inc. a
New York corporation having an office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
Witnesseth:
1. "Space C" compromising of 2500 square feet on the Second Floor of One
Bridge Street in Irvington, New York, known as Suite 30 shall be added to
the Lease. Additional rent for Space C shall not commence until April 1st,
2000.
2. The term set forth herein will commence April 1st, 2000 and end on August
31st, 2004.
3. Rent Schedule see exhibit A:
4. Landlord Work Letter "As is"
5. Continuation of Lease Provisions: Except as amended herein, all other
terms and conditions of the Lease shall remain in full force and effect
for the duration of the Lease.
6. Tenant to be responsible for CAM'S, Taxes, HVAC and Electric charge as per
the original lease covering space "A"
7. Prior to taking occupancy Tenant shall provide an additional security
deposit of $10,312.50, totaling $49,092.50 for original lease, first
amendment and second amendment.
8. Tenant shall be issued a total of 8 additional parking spaces, totaling 39
spaces for the original lease, first amendment and second amendment.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
Bridge Street Properties, LLC CTC Bulldog
Member Co-CEO
Title Title
IWON
EXHIBIT A
Yearly Rent per month
Suite 42 (Space A)
09/01/99 to 08/31/00 102,870.00 8,572.50
09/01/00 to 08/31/01 105,956.10 8,829.68
09/01/01 to 08/31/02 109,134.78 9,094.57
09/01/02 to 08/31/03 112,408.83 9,367.40
09/01/03 to 08/31/04 115,781.09 9,648.42
Yearly Rent per month
Suite 121 (Space B)
01/01/00 to 08/31/00 34,833.33 4,354.17
09/01/00 to 08/31/01 54,862.50 4,571.88
09/01/01 to 08/31/02 57,605.63 4,800.47
09/01/02 to 08/31/03 60,485.91 5,040.49
09/01/03 to 08/31/04 63,510.20 5,292.52
Yearly Rent per month
Suite 30 (Space C)
04/01/00 to 11/30/00 27,500.00 3,437.50
12/01/00 to 11/30/01 43,750.00 3,645.83
12/01/01 to 11/30/02 53,750.00 4,479.17
12/01/02 to 11/30/03 56,975.00 4,747.92
12/01/03 to 08/31/04 45,295.11 5,032.79
Yearly Rent per month
Suite 77 (Selling)
04/01/00 to 11/30/00 6,811.68 851.46
12/01/00 to 11/30/01 15,392.52 1,282.71
12/01/01 to 11/30/02 9,548.04 795.67 If Selling exercises their option
12/01/02 to 11/30/03 10,505.88 875.49 If Selling exercises their option
12/01/03 to 11/30/04 11,686.20 973.85 If Selling exercises their option
First Addendum to Lease Between
BRIDGE STREET PROPERTIES, LLC
and
CTC BULLDOG, INC.
Dated: November , 1999
1. "Space B" comprising 2750 square feet on the ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ known as Suite 121 shall be added to the Lease, with
occupancy commencing January 2, 2000 at the rent set forth on Schedule A annexed
hereto. Rent and additional rent for Space B shall not commence until Owner
provides occupancy of such Space B.
2. Landlord shall perform the following:
a) demolish the interior partitions, as required (Tenant to be responsible
for all other construction);
b) remove and replace all carpeting except for that in the three offices
along the windows;
c) install a "white noise" or stereo system.
3. Tenant may terminate this lease as to Space B by (a) giving Landlord
six months prior written notice of intent to terminate accompanied by xix months
rent and the then applicable additional rent, plus the unamortized portion of
the Landlord's capital improvements in an amount to be determined upon
completion of such work by dividing the total cost of such improvements by 56
and multiplying by the number of unexpired months remaining in the term as of
the date of the notice and (b) physically vacating the premises within three
months after the date of the notice. Upon fulfillment of both of the foregoing
conditions the Tenant shall be released from any further obligations under this
lease as to Space B.
4. Prior to taking occupancy Tenant shall provide an additional deposit of
$13,062.50.
5. Tenant shall be entitled to 10 additional parking.
BRIDGE STREET PROPERTIES, LLC
ONE BRIDGE STREET CORP., MANAGER
BY:/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, PRESIDENT
CTC BULLDOG, INC.
BY:/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CEO
▇▇▇.▇▇▇▇▇
per month
including
Rent Cost Rent Per taxes and
per Year Month cans
2750 1/1/00 to 8/31/00 $ 34,833.33 $ 4,354.17 $ 5,098.96
Square feet
9/1/00 to 8/31/01 $ 54,862.50 $ 4,571.88 $ 6,316.67
3 Months 9/1/01 to 8/31/02 $ 57,605.63 $ 4,800.47 $ 6,545.26
Security deposit
9/1/02 to 8/31/03 $ 60,485.91 $ 5,040.49 $ 6,785.28
4yr 8 mo. 9/1/03 to 8/31/04 $ 63,510.20 $ 5,292.52 $ 6,037.31
Duration of lease
Paid by Tenant $1.50 CAMS 343.75
Common Area Maintenance
First Pro-rata share 1.75 TAXES 401.042
Taxes
Paid by Tenant
/AC Pro Rata
b-metered Paid by Tenant Cost per bag $7.50 6
ctric Garbage (min $50 per mo) # Parking Additional Charge
per parking space