Common use of The Third Additional Space Only Clause in Contracts

The Third Additional Space Only. Commencing as of the Third Additional Space Commencement Date and ending on the day immediately preceding the Fourth Additional Space Commencement Date, with respect to the Third Additional Space only, Article 41 of the Lease is hereby deleted in its entirety and replaced with the following: 41.01 Tenant acknowledges and agrees that electric service shall be supplied by Landlord to the Third Additional Space on a “rent inclusion basis” in accordance with the provisions of this Article 41. 41.02 Electricity and electric service, as used herein, shall mean any element affecting the generation, transmission, and/or distribution or redistribution of electricity, including but not limited to services which facilitate the distribution of service. 41.03 If and so long as Landlord provides electricity to the Third Additional Space on a rent inclusion basis, Tenant agrees that the Fixed Annual Rent shall be increased by the amount of the Electricity Rent Inclusion Factor (“ERIF”), as hereinafter defined. Tenant acknowledges and agrees (i) that the Fixed Annual Rent hereinabove set forth in this Lease does not yet, but is to include an ERIF of $3.25 per rentable square foot to compensate Landlord for electrical wiring and other installations necessary for, and for its obtaining and making available to Tenant the redistribution of electric current as an additional service, which shall be paid for by Tenant in accordance with provisions hereof; and (ii) that said ERIF shall be subject to periodic adjustments as hereinafter provided. For purposes of this Article, the rentable square foot area of the Third Additional Space shall be deemed to be 3,235 rentable square feet. 41.04 The parties agree that a reputable, independent electrical consultant firm, selected by Landlord, (“Landlord’s Electrical Consultant”), may from time to time, make surveys in the Third Additional Space of the electrical equipment and fixtures and use of current, provided, however, Landlord’s Electrical Consultant shall only make any such survey of the Third Additional Space if in Landlord’s reasonable judgment Tenant’s consumption of electricity in the Third Additional Space is greater than an average demand load of six (6) xxxxx of electricity per rentable square foot of the Third Additional Space for all purposes, exclusive of the Existing HVAC Equipment (as hereinafter defined in Section 5(d)(i)(A), below). If the cost to Landlord under the SC-4 Rate I Service Classification (“Landlord’s Service Classification”) in effect on the date of such survey (or the comparable rate schedule of any service provider other than Con Ed then providing electrical service to the building as same shall be in effect on the date of such survey), for the electrical load and usage of electricity reflected on such survey shall exceed the aforesaid ERIF portion of the Fixed Annual Rent, then effective as of the date of said survey, the ERIF portion of Fixed Annual Rent (computed and fixed as hereinbefore described) shall be increased to amount equal to what Landlord would pay for such electrical load and usage under Landlord’s Service Classification (which ERIF shall be increased by all electricity cost changes of Landlord, as hereinabove provided, from the Third Additional Space Commencement Date through the date of billing). 41.05 In no event, whether because of surveys, rates or cost changes, or for any reason, is the originally specified $3.25 per rentable square foot ERIF portion of the Fixed Annual Rent to be reduced. 41.06 The determinations by Landlord’s Electrical Consultant shall be binding and conclusive on Landlord and Tenant from and after the delivery of copies of such determinations to Landlord and Tenant, unless, within ninety (90) days after delivery thereof, Tenant disputes such determination. If Tenant so disputes the determination, it shall, at its own expense, obtain from a reputable, independent electrical consultant its own determinations in accordance with the provisions of this Article. Tenant’s consultant and Landlord’s consultant then shall seek to agree. If they cannot agree within thirty (30) days they shall choose a third reputable electrical consultant, whose cost shall be shared equally by the parties, to make similar determinations which shall be controlling. (If they cannot agree on such third consultant within ten (10) days, than either party may apply to the Supreme Court in the County of New York for such appointment.) However, pending such controlling determinations Tenant shall pay to Landlord the amount of Additional Rent or ERIF in accordance with the determinations of Landlord’s Electrical Consultant. If the controlling determinations differ from Landlord’s Electrical Consultant, then the parties shall promptly make adjustment for any deficiency owed by Tenant or overage paid by Tenant. 41.07 If any tax is imposed upon Landlord’s receipt from the sale, resale or redistribution of electricity or gas or telephone service to Tenant by any Federal, State, or Municipal authority, Tenant covenants and agrees that where permitted by law, Tenant’s pro-rata share of such taxes shall be passed on to and included in the xxxx of, and paid by, Tenant to Landlord. 41.08 If all or part of the ERIF payable in accordance with Article 41.03 or 41.04 of this Article becomes uncollectible or reduced or refunded by virtue of any law, order or regulations, the parties agree that, at Landlord’s option, in lieu of ERIF, and in consideration of Tenant’s use of the Building’s electrical distribution system and receipt of redistributed electricity and payment by Landlord of consultant’s fees and other redistribution costs, the Fixed Annual Rental rate(s) to be paid under this Lease with respect to the Third Additional Space shall be increased by an “alternative charge” which shall be a sum equal to $3.25 per year per rentable square foot of the Third Additional Space. 41.09 Landlord shall not be liable 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, except in the case where same results from the negligence or willful misconduct of Landlord, its employees, agents or contractors, in which event, however, under no circumstances shall Landlord be liable for any consequential or special damages. Tenant covenants and agrees that at all times its use of electric current shall never exceed the capacity of existing feeders to the Building or wiring installations. Any riser or risers to supply Tenant’s additional electrical requirements in the Third Additional Space, upon written request of Tenant, will be installed by Landlord, at the sole cost and expense of Tenant, if, in Landlord’s sole but reasonable judgment, the same are necessary and will not cause permanent damage or injury to the Building or the Third Additional Space or cause or create a dangerous or hazardous condition or entail excessive or unreasonable alterations, repairs or expense or interfere with or disturb other tenants or occupants. In addition to the installation of such riser or risers, Landlord will also at the sole cost and expense of Tenant, install all other equipment proper and necessary in connection therewith subject to the aforesaid terms and conditions. The parties acknowledge that they understand that it is anticipated that electric rates, charges, etc., may be changed by virtue of time-of-day rates or changes in other methods of billing, and/or electricity purchases and the redistribution thereof, and fluctuation in the market price of electricity, and that the references in the foregoing paragraphs to changes in methods of or rules on billing are intended to include any such changes. Anything hereinabove to the contrary notwithstanding, in no event is the ERIF, or any “alternative charge”, to be less than an amount equal to the total of Landlord’s payments to public utilities and/or other providers for the electricity consumed by Tenant (and any taxes thereon or on redistribution of same). The Landlord reserves the right, at any time upon thirty (30) days’ written notice, to change to the distribution of less than all the components of the existing service to Tenant. The Landlord reserves the right to terminate the furnishing of electricity on a rent inclusion, or any other basis at any time, upon ninety (90) days’ written notice to the Tenant and provided that all other tenants in the Building are similarly terminated, in which event the Tenant may make application directly to the public utility and/or other providers for the Tenant’s entire separate supply of electric current and Landlord shall permit its wires and conduits, to the extent available and safely capable, to be used for such purpose, but only to the extent of Tenant’s then authorized load. Any meters, risers, or other equipment or connections necessary to enable Tenant to obtain electric current directly from such utility and/or other providers shall be installed at Landlord’s sole cost and expense. The Landlord, upon the expiration of the aforesaid ninety (90) days’ written notice to the Tenant may discontinue furnishing the electric current but this Lease shall otherwise remain in full force and effect. Notwithstanding the foregoing, so long as Tenant has timely commenced and maintained diligent, good faith efforts to obtain direct electric service from a utility, Landlord shall not discontinue electric service until Tenant has obtained direct service from a utility. If Tenant was provided electricity on a rent inclusion basis when it was so discontinued, then commencing when Tenant receives such direct service and as long as Tenant shall continue to receive such service, the Fixed Annual Rent payable under this Lease shall be reduced by the amount of the ERIF which was payable immediately prior to such discontinuance of electricity on a rent inclusion basis.

The Third Additional Space Only. Commencing (i) Tenant shall have prepared by a registered architect and/or a licensed professional engineer, at its sole cost and expense, and submit to Landlord for its approval in accordance with the applicable provisions of the Lease, final and complete dimensioned architectural, mechanical, electrical and structural drawings and specifications in a form ready for use as construction drawings (“Tenant’s Plans”) for the installation of alterations, installations, decorations and improvements in the Third Additional Space to prepare the same for Tenant’s initial occupancy thereof (“Tenant’s Third Additional Space Alteration Work”). All such construction plans and specifications and all such work shall be effected in accordance with all applicable provisions of the Lease, including, without limitation, Article 8, at Tenant’s sole cost and expense. In connection with any Tenant’s Third Additional Space Alteration Work, Landlord shall reasonably cooperate with Tenant in connection with obtaining necessary permits for any Tenant’s Third Additional Space Alteration Work, which may include, without limitation, executing applications reasonably required by Tenant for such permits prior to completion of Landlord’s review of Tenant’s Plan s, provided that (A) execution of any such application by Landlord shall not constitute Landlord ‘s consent to Tenant’s Third Additional Space Alteration Work in question (which consent shall still be required in accordance with all applicable provisions of the Lease, including, without limitation, Article 8, prior to the performance of any Tenant’s Third Additional Space Alteration Work), (B) no such application shall include a proposed change in the Certificate of Occupancy for the Building, and (C) Tenant shall reimburse Landlord, within thirty (30) days after demand therefor, for all reasonable out-of-pocket third party costs and expenses reasonably incurred by Landlord in connection with Landlord’s cooperation in obtaining such permits. (ii) If and so long as Tenant is not in monetary or material non-monetary default under the Lease after notice, (in which event Tenant’s rights under this Article shall be suspended until such time, if ever, as Tenant fully cures the default alleged in such notice, at which time Tenant’s rights hereunder shall be reinstated), then subject to and in accordance with the provisions of this Section 7, Landlord shall contribute up to the sum of $80,875.00 (“Landlord’s Third AS Contribution”) to the cost of labor and materials for the portion of the Tenant’s Third Additional Space Alteration Work which constitutes Qualified Renovations. “Qualified Renovations” shall be defined as: (A) the labor and materials used by Tenant to construct permanent leasehold improvements and alterations to the Third Additional Space in compliance with the Lease after the date hereof and prior to the last day of the twenty-fourth (24th) calendar month following the Third Additional Space Commencement Date and ending on the day immediately preceding the Fourth Additional Space Commencement Date, with respect (B) up to the Third Additional Space only, Article 41 of the Lease is hereby deleted in its entirety and replaced with the following: 41.01 Tenant acknowledges and agrees that electric service shall be supplied by Landlord to the Third Additional Space on a “rent inclusion basis” in accordance with the provisions of this Article 41. 41.02 Electricity and electric service, as used herein, shall mean any element affecting the generation, transmission, and/or distribution or redistribution of electricity, including but not limited to services which facilitate exceeding the distribution of service. 41.03 If and so long as Landlord provides electricity to the Third Additional Space on a rent inclusion basis, Tenant agrees that the Fixed Annual Rent shall be increased by the amount of the Electricity Rent Inclusion Factor (“ERIF”), as hereinafter defined. Tenant acknowledges and agrees (i) that the Fixed Annual Rent hereinabove set forth in this Lease does not yet, but is to include an ERIF sum of $3.25 per rentable square foot to compensate Landlord 16,175.00 of Landlord’s Third AS Contribution may be applied towards the Soft Costs (as defined below) incurred in connection therewith. Without limitation, for electrical wiring and other installations necessary for, and for its obtaining and making available to Tenant the redistribution of electric current as an additional service, which shall be paid for by Tenant in accordance with provisions hereof; and (ii) that said ERIF shall be subject to periodic adjustments as hereinafter provided. For purposes of this Article, Qualified Renovations shall be deemed not to include and Landlord’s Third AS Contribution shall not be applied to the rentable square foot area cost of interest, late charges, trade fixtures, furniture, furnishings, moveable business equipment or any personal property whatsoever, or to the cost of labor, materials or services used to furnish or provide the same. For the purposes hereof, the term “Soft Costs” shall mean the cost of architectural, planning, engineering and filing fees, equipment, workstations, related cabinetry, and/or work surfaces (whether or not affixed to walls and/or convector covers), incurred in connection with the performance of Tenant’s Third Additional Space shall be deemed Alteration Work. Notwithstanding anything to be 3,235 rentable square feet. 41.04 The parties agree that a reputable, independent electrical consultant firm, selected by Landlord, (“Landlord’s Electrical Consultant”), may from time to time, make surveys the contrary contained in the Third Additional Space of the electrical equipment and fixtures and use of currentLease or this Agreement, provided, however, Landlord’s Electrical Consultant Tenant shall only make not be required to pay Landlord any such survey of the Third Additional Space if in Landlord’s reasonable judgment Tenant’s consumption of electricity in the Third Additional Space is greater inspection or supervisory fee (other than an average demand load of six (6) xxxxx of electricity per rentable square foot of the Third Additional Space for all purposes, exclusive of the Existing HVAC Equipment (as hereinafter defined in Section 5(d)(i)(A), below). If the cost to Landlord under the SC-4 Rate I Service Classification (“Landlord’s Service Classification”out-of-pocket third party expenses) in effect on the date of such survey (or the comparable rate schedule of connection with any service provider other than Con Ed then providing electrical service Qualified Renovations to the building as same shall be in effect on the date of such survey), for the electrical load and usage of electricity reflected on such survey shall exceed the aforesaid ERIF portion of the Fixed Annual Rent, then effective as of the date of said survey, the ERIF portion of Fixed Annual Rent (computed and fixed as hereinbefore described) shall be increased to amount equal to what Landlord would pay for such electrical load and usage under Landlord’s Service Classification (which ERIF shall be increased by all electricity cost changes of Landlord, as hereinabove provided, from the Third Additional Space Commencement Date through the date of billing). 41.05 In no event, whether because of surveys, rates or cost changes, or for any reason, is the originally specified $3.25 per rentable square foot ERIF portion of the Fixed Annual Rent to be reduced. 41.06 The determinations by Landlord’s Electrical Consultant shall be binding and conclusive on Landlord and Tenant from and after the delivery of copies of such determinations to Landlord and Tenant, unless, within ninety (90) days after delivery thereof, Tenant disputes such determination. If Tenant so disputes the determination, it shall, at its own expense, obtain from a reputable, independent electrical consultant its own determinations in accordance with the provisions of this Article. Tenant’s consultant and Landlord’s consultant then shall seek to agree. If they cannot agree within thirty (30) days they shall choose a third reputable electrical consultant, whose cost shall be shared equally by the parties, to make similar determinations which shall be controlling. (If they cannot agree on such third consultant within ten (10) days, than either party may apply to the Supreme Court in the County of New York for such appointment.) However, pending such controlling determinations Tenant shall pay to Landlord the amount of Additional Rent or ERIF in accordance with the determinations of Landlord’s Electrical Consultant. If the controlling determinations differ from Landlord’s Electrical Consultant, then the parties shall promptly make adjustment for any deficiency owed by Tenant or overage paid by Tenant. 41.07 If any tax is imposed upon Landlord’s receipt from the sale, resale or redistribution of electricity or gas or telephone service to Tenant by any Federal, State, or Municipal authority, Tenant covenants and agrees that where permitted by law, Tenant’s pro-rata share of such taxes shall be passed on to and included in the xxxx of, and paid by, Tenant to Landlord. 41.08 If all or part of the ERIF payable in accordance with Article 41.03 or 41.04 of this Article becomes uncollectible or reduced or refunded by virtue of any law, order or regulations, the parties agree that, at Landlord’s option, in lieu of ERIF, and in consideration of Tenant’s use of the Building’s electrical distribution system and receipt of redistributed electricity and payment by Landlord of consultant’s fees and other redistribution costs, the Fixed Annual Rental rate(s) to be paid under this Lease with respect to the Third Additional Space shall be increased by an “alternative charge” which shall be a sum equal to $3.25 per year per rentable square foot of the Third Additional Space. 41.09 Landlord shall not be liable 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, except in the case where same results from the negligence or willful misconduct of Landlord, its employees, agents or contractors, in which event, however, under no circumstances shall Landlord be liable for any consequential or special damages. Tenant covenants and agrees that at all times its use of electric current shall never exceed the capacity of existing feeders to the Building or wiring installations. Any riser or risers to supply Tenant’s additional electrical requirements in the Third Additional Space, upon written request of Tenant, will be installed by Landlord, at the sole cost and expense of Tenant, if, in Landlord’s sole but reasonable judgment, the same are necessary and will not cause permanent damage or injury to the Building or the Third Additional Space or cause or create a dangerous or hazardous condition or entail excessive or unreasonable alterations, repairs or expense or interfere with or disturb other tenants or occupants. In addition to the installation of such riser or risers, Landlord will also at the sole cost and expense of Tenant, install all other equipment proper and necessary in connection therewith subject to the aforesaid terms and conditions. The parties acknowledge that they understand that it is anticipated that electric rates, charges, etc., may be changed by virtue of time-of-day rates or changes in other methods of billing, and/or electricity purchases and the redistribution thereof, and fluctuation in the market price of electricity, and that the references in the foregoing paragraphs to changes in methods of or rules on billing are intended to include any such changes. Anything hereinabove to the contrary notwithstanding, in no event is the ERIF, or any “alternative charge”, to be less than an amount equal to the total of Landlord’s payments to public utilities and/or other providers for the electricity consumed by Tenant (and any taxes thereon or on redistribution of same). The Landlord reserves the right, at any time upon thirty (30) days’ written notice, to change to the distribution of less than all the components of the existing service to Tenant. The Landlord reserves the right to terminate the furnishing of electricity on a rent inclusion, or any other basis at any time, upon ninety (90) days’ written notice to the Tenant and provided that all other tenants in the Building are similarly terminated, in which event the Tenant may make application directly to the public utility and/or other providers for the Tenant’s entire separate supply of electric current and Landlord shall permit its wires and conduits, to the extent available and safely capable, to be used for such purpose, but only to the extent of Tenant’s then authorized load. Any meters, risers, or other equipment or connections necessary to enable Tenant to obtain electric current directly from such utility and/or other providers shall be installed at Landlord’s sole cost and expense. The Landlord, upon the expiration of the aforesaid ninety (90) days’ written notice to the Tenant may discontinue furnishing the electric current but this Lease shall otherwise remain in full force and effect. Notwithstanding the foregoing, so long as Tenant has timely commenced and maintained diligent, good faith efforts to obtain direct electric service from a utility, Landlord shall not discontinue electric service until Tenant has obtained direct service from a utility. If Tenant was provided electricity on a rent inclusion basis when it was so discontinued, then commencing when Tenant receives such direct service and as long as Tenant shall continue to receive such service, the Fixed Annual Rent payable under this Lease shall be reduced by the amount of the ERIF which was payable immediately prior to such discontinuance of electricity on a rent inclusion basis.