Exhibit 10.6
Lease made as of the 1st day of September, 1998, between Investment
Properties Associates hereinafter referred to as "Landlord" or "Lessor", and
DoubleClick, Inc. hereinafter referred to as "Tenant" or "Lessee".
W I T N E S S E T H:
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Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
Entire 16th Floor (said space is hereinafter called the "premises") in the
building known as 000 Xxxxx Xxxxxx ("xxx building") in the County of New York,
City of New York, for a term of 1 year and 3 months to commence on the 1st day
of October 1998, and to expire on the 31st day of December, 1999, or until such
term shall sooner end as in Article 12 and elsewhere herein provided, both dates
inclusive, at a fixed annual rental (subject to Articles 23 and 41) at the
annual rate of $330,021.00 per annum (10/1/98-12/31/99) payable in equal monthly
installments in advance on the first day of each month, except that the first
installment of rent due under this lease shall be paid by Tenant upon its
execution of this lease, unless this lease be a renewal.
Landlord and Tenant covenant and agree:
PURPOSE.
1. Tenant shall use and occupy the premises only for offices relating
to Tenant's business, and for no other purpose. [general & executive offices]
RENT AND ADDITIONAL RENT.
2. Tenant agrees to pay rent as herein provided at the office of
Landlord or such other place as Landlord may designate, payable in United States
legal tender, by case, or by good and sufficient check drawn on a New York City
Clearing House Bank, and without any set off or deduction whatsoever. Any sum
other than fixed rent payable hereunder shall be deemed additional rent and due
on demand.
ASSIGNMENT.
3. Neither Tenant nor Tenant's legal representatives or successors in
interest by operation of law or otherwise, shall assign, mortgage or otherwise
encumber this lease, or sublet or permit all or part of the premises to be used
by others, without the prior written consent of Landlord in each instance. The
transfer of a majority of the issued and outstanding capital stock of any
corporate tenant or sublessee of this lease or a majority of the total interest
in any partnership tenant or sublessee, however accomplished, and whether in a
single transaction or in a series of related or unrelated transactions, and the
conversion of a tenant or sublessee entity to either a limited liability company
or a limited liability partnership shall be deemed an assignment of this lease
or of such sublease. The merger or consolidation of a corporate tenant or
sublessee where the net worth of the resulting corporation is less than the net
worth of the tenant or sublessee immediately proper to such merger or
consolidation shall be deemed an assignment of this lease or of such sublease.
If without Landlord's written consent this lease is assigned, or the premises
are sublet or occupied by anyone other than Tenant, Landlord may accept the rent
from
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such assignee, subtenant or occupant, and apply the net amount thereof to the
rent herein reserved, but no such assignment, subletting, occupancy or
acceptance of rent shall be deemed a waiver of this covenant. Consent by
Landlord to an assignment or subletting shall not relieve Tenant from the
obligation to obtain Landlord's written consent to any further assignment or
subletting. In no event shall any permitted sublessee assign or encumber its
sublease or further sublet all or any portion of its sublet space, or otherwise
suffer or permit the sublet space or any part thereof to be used or occupied by
others, without Landlord's prior written consent in each instance. A
modification, amendment or extension of a sublease shall be deemed a sublease.
DEFAULT.
4. Landlord may terminate this lease on three (3) days' notice: (a) if
rent or additional rent is not paid within five (5) days after written notice
from Landlord; or (b) if Tenant shall have failed to cure a default in the
performance or any covenant of this lease (except the payment of rent), or any
rule or regulation hereinafter set forth, within ten (10) days after written
notice thereof from Landlord, or if default cannot be completely cured in such
time, if Tenant shall not promptly proceed to cure such default within said ten
(10) days, or shall not complete the curing of such default with due diligence;
or (c) when and to the extent permitted by law, if a petition in bankruptcy
shall be filed by or against Tenant or if Tenant shall make a general assignment
for the benefit of creditors, or receive the benefit of any insolvency or
reorganization act; or (d) if a receiver or trustee is appointed for any portion
of Tenant's property and such appointment is not vacated within twenty (20)
days; or (e) if an execution or attachment shall be issued under which the
premises shall be taken or occupied or attempted to be taken or occupied by
anyone other than Tenant; or (f) if the premises become and remain vacant or
deserted for a period often (10) days; or (g) if Tenant shall default beyond any
grace period under any other lease between Tenant and Landlord.
At the expiration of the three (3) day notice period, this lease and
any rights of renewal or extension thereof shall terminate as completely as if
that were the date originally fixed for the expiration of the term of this
lease, but Tenant shall remain liable as hereinafter provided.
RELETTING, ETC.
5. If Landlord shall re-enter the premises on the default of Tenant, by
summary proceedings or otherwise: (a) Landlord may re-let the premises or any
part thereof as Tenant's agent, in the name of Landlord, or otherwise for a term
shorter or longer than the balance of the term of this lease, and may grant
concessions or free rent. (b) Tenant shall pay Landlord any deficiency between
the rent hereby reserved and the net amount of any rent collected by Landlord
for the remaining term of this lease, through such re-letting. Such deficiency
shall become due and payable monthly, as it is determined. Landlord shall have
no obligation to re-let the premises, and its failure or refusal to do so, or
failure to collect rent on re-letting, shall not affect Tenant's liability
hereunder. In computing the net amount to rent collected through such
re-letting, Landlord may deduct all reasonable expenses incurred in obtaining
possession of re-letting the premises, including reasonable legal expenses and
fees, brokerage fees, the cost of restoring the premises to good order, and the
cost of all alterations and decorations deemed necessary by Landlord to effect
re-letting. In no event shall Tenant be entitled to a credit or repayment for
rerental income which exceeds the sums payable by Tenant hereunder or which
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covers a period after the original term of this lease. (c) Tenant hereby
expressly waives any right of redemption granted by any present or future law.
"Re-enter" and "re-entry" as used in this lease are not restricted to their
technical legal meaning. In the event of a breach or threatened breach of any of
the covenants or provisions hereof Landlord shall have the right of injunction.
Mention herein of any particular remedy shall not preclude Landlord from any
other available remedy. (d) Landlord shall recover as liquidated damages, in
addition to accrued rent and other charges, if Landlord's re-entry is the result
of Tenant's bankruptcy, insolvency, or reorganization, the full rental for the
maximum period allowed by any act relating to bankruptcy, insolvency or
reorganization.
If Landlord re-enters the premises for any cause, or if Tenant abandons
or vacates the premises, and after the expiration of the term of this lease, any
property left in the premises by the Tenant shall be deemed to have been
abandoned by Tenant, and Landlord shall have the right to retain or dispose of
such property in any manner without any obligation to account therefor to
Tenant. If Tenant shall at any time default hereunder, and if Landlord shall
institute an actions or summary proceedings against Tenant based upon such
default, then Tenant will reimburse Landlord for the reasonable legal expenses
and fees thereby incurred by Landlord.
LANDLORD MAY CURE DEFAULTS.
6. If Tenant shall default in performing any covenant or condition of
this lease, Landlord may, after giving Tenant three (3) days prior written
notice thereof, perform the same for the account of Tenant, and if Landlord, in
connection therewith, or in connection with any default by Tenant, makes any
expenditures or incurs any obligations for the payment of money, including but
not limited to attorney's fees, such sums so paid or obligations incurred shall
be deemed to be additional rent hereunder, and shall be paid by Tenant to
Landlord within five (5) days of rendition of any xxxx or statement therefor,
and if Tenant's lease term shall have expired at the time of the making of such
expenditures of incurring of such obligations, such sums shall be recoverable by
Landlord as damages.
ALTERATIONS.
7. Tenant shall make no decoration, alteration, addition or improvement
in the premises without the prior written consent of Landlord, and then only by
contractors or mechanics and in such manner and with such materials as shall be
approved by Landlord. All alterations, additions or improvements to the
premises, including window and central air conditioning equipment and duct work,
except movable office furniture and equipment installed at the expense of
Tenant, shall, unless Landlord elects otherwise in writing, become the property
of Landlord, and shall be surrendered with the premises at the expiration or
sooner termination of the term of this lease. Any such alterations, additions
and improvements which Landlord shall designate, shall be removed by Tenant and
any damage repaired, at Tenant's expense, prior to the expiration of the term of
this lease.
LIENS.
8. Prior to commencement of its work in the demised premises. Tenant
shall obtain and deliver to Landlord a written letter of authorization, in form
satisfactory to Landlord's
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counsel, signed by architects, engineers and designers to become involved in
such work, which shall confirm that any of their drawings or plans are to be
removed from any filing with governmental authorities, on request of Landlord,
in the event that said architect, engineer, or designer thereafter no longer is
providing services with respect to the demised premises. With respect to
contractors, subcontractors, materialmen and laborers, and architects, engineers
and designers, for all work or materials to be furnished to Tenant at the
premises, Tenant agrees to obtain and deliver to Landlord written and
unconditional waiver of mechanics liens upon the premises or the building, after
payments to the contractors, etc., subject to any then applicable provisions of
the Lien law. Notwithstanding the foregoing, Tenant at its expense shall cause
any lien filed against the premises or the building, for work or materials
claimed to have been furnished to Tenant, to be discharged of record within
twenty (20) days after notice thereof.
REPAIRS.
9. Tenant shall take good care of the premises and the fixtures and
appurtenances therein, and shall make all repairs necessary to keep them in good
working order and condition, including structural repairs when those are
necessitated by the negligence of Tenant or its agents, employees or invitees.
During the term of this lease, Tenant may have the use of any air-conditioning
equipment located in the premises, and Tenant, at its own cost and expense,
shall maintain and repair any such equipment serving only the premises and shall
reimburse Landlord, in accordance with Article 41 of this lease, for electricity
consumed by the equipment. The exterior walls of the building, the windows and
the portions of all window xxxxx outside same and areas above any hung ceiling
are not part of the premises demised by this lease, and Landlord hereby reserves
all rights to such parts of the building.
DESTRUCTION.
10. If the premises shall be partially damaged by fire or other
casualty, the damage shall be repaired at the expense of Landlord, but
without prejudice to the rights of subrogation, if any, of Landlord's
insurer. Landlord shall not be required to repair or restore any of Tenant's
property or any alteration or leasehold improvement made by or for Tenant at
Tenant's expense. The rent shall xxxxx in proportion to the portion of the
premises not usable by Tenant. Landlord shall not be liable to Tenant for any
delay in restoring the premises. Tenant's sole remedy being the right to an
abatement of rent as above provided. If the premises are rendered wholly
untenantable by fire or other casualty and if Landlord shall decide not to
restore the premises, or if the building shall be so damaged that Landlord
shall decide to demolish it or to rebuild it (whether or not the premises
have been damaged), Landlord may within ninety (90) days after such fire or
other cause give written notice to Tenant of its election that the term of
this lease shall automatically expire no less than ten (10) days after such
notice is given. 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 the extent
permitted by law, Landlord and Tenant each hereby releases and waives all
right of recovery against the other or any one claiming through or under each
of them by way of subrogation or otherwise. The foregoing release and waiver
shall be in force only if both releasors' insurance policies contain a clause
providing that such a release or waiver shall not invalidate the insurance
and also, provided that such a policy can be obtained without additional
premiums. Tenant hereby
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expressly waives the provisions of Section 227 of the Real Property law and
agrees that the foregoing provisions of this Article shall govern and control in
lieu thereof.
END OF TERM.
11. Tenant shall surrender the premises to Landlord at the expiration
or sooner termination of this lease in good order and condition, except for
reasonable wear and tear and damage by fire or other casualty or damage for
which Tenant is not responsible. Tenant agrees that if possession of the
premises is not surrendered to Landlord within one (1) day after the date of the
expiration or sooner termination of the term of this lease, then Tenant will pay
Landlord as liquidated damages for each month and for each portion of any month
during which Tenant holds over in the premises after expiration or termination
of the term of this lease, a sum equal to 1.5 times the average rent and
additional rent which was payable per month under this lease during the last six
months of the term thereof. The aforesaid obligations shall survive the
expirations or sooner termination of the term of this lease. At any time during
the term of this lease, Landlord may upon reasonable prior notice to Tenant
exhibit the premises to prospective purchasers or mortgagees of Landlord's
interest therein. During the last four months of the term of this lease,
Landlord may upon reasonable prior notice to Tenant exhibit the premises to
prospective tenants.
SUBORDINATION AND ESTOPPEL, ETC.
12. This lease is and shall be subject and subordinate to all ground
and underlying leases and to all mortgages which may now or hereafter affect
such leases or the real property of which the premises form a part, and to all
renewals, modifications, consolidations, replacements and extensions thereof.
This Article shall be self-operative and no further instrument of subordination
shall be necessary. In confirmations of such subordination, tenant shall execute
promptly any certificate that Landlord may request. Tenant hereby appoints
Landlord as tenant's irrevocable attorney-in-fact to execute any document of
subordination on behalf of Tenant. In the event that any ground or underlying
lease is terminated or any mortgage foreclosed, this lease shall not terminate
or be terminable by Tenant unless Tenant was specifically named in any
termination or foreclosure judgment or final order. In the event that any ground
or underlying lease is terminated as aforesaid, or expires (as hereinafter
provided), or if the interests of Landlord under this lease are transferred by
reason of or assigned in lieu of foreclosure or other proceedings for
enforcement of any mortgage, or if the holder of any mortgage acquires a lease
in substitution therefor, then tenant will, at the option to be exercised in
writing by such purchaser, assignee or lessee, as the case may be, (i) attorn to
it and will perform for its benefit all the terms, covenants and conditions of
this lease on the Tenant's part to be performed with the same force and effect
as if said landlord or such purchaser, assignee or lessee, were the landlord
originally named in this lease, or (ii) enter into a new lease with said lessor
or such purchaser, assignee or lessee, as landlord, for the remaining term of
this lease and otherwise on the same terms, conditions and rentals as herein
provided. From time to time, Tenant, on at least ten (10) days prior written
request by Landlord will deliver to Landlord a statement in writing certifying
that this lease is unmodified and in full force and effect (or if there shall
have been modifications, that the same is in full force and effect as modified
and stating the modification) and the dates to which the rent and other charges
have been paid and stating whether or not the Landlord is in default in
performance of any covenant, agreement, or condition contained in this lease
and, if so, specifying each such default of which Tenant may have knowledge.
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CONDEMNATION.
13. If the whole or any substantial part of the premises shall be
condemned by eminent domain or acquired by private purchase in lieu thereof for
any public or quasi-public purpose, this lease shall terminate on the date of
the vesting of title through such proceeding or purchase, and Tenant shall have
no claim against Landlord for the value of any unexpired portion of the term of
this lease, nor shall Tenant be entitled to any part of the condemnation award
or private purchase price. If less than a substantial part of the premises is
condemned, this lease shall not terminate, but rent shall xxxxx in proportion to
the portion of the premises condemned.
REQUIREMENTS OF LAW.
14. (a) Tenant at its expense shall comply with all laws, orders
and regulations of any governmental authority having or asserting jurisdiction
over the premises, which shall impose any violation, order or duty upon Landlord
or Tenant with respect to Tenant's particular manner of use of the premises
including, without limitation, compliance in the premises with all City, State
and Federal laws, rules and regulations on the disabled or handicapped, on fire
safety and on hazardous materials. The foregoing shall not require Tenant to do
structural work.
(b) Tenant shall require every person engaged by him to clean
any window in the premises from the outside, to use the equipment and safety
devices required by Section 202 of the labor law and the rules of any
governmental authority having or asserting jurisdiction.
(c) Tenant at its expense shall comply with all requirements
of the New York Board of Fire Underwriters, or any other similar body affecting
the premises and shall not use the premises in a manner which shall increase the
rate of fire insurance of Landlord or of any other tenant, over that in effect
prior to this lease. If Tenant's particular manner of use of the premises
increases the fire insurance rate, Tenant shall reimburse Landlord for all such
increased costs. That the premises are being used for the purpose set forth in
Article I hereof shall not relieve Tenant from the foregoing duties, obligations
and expenses.
CERTIFICATE OF OCCUPANCY.
15. Tenant will at no time use or occupy the premises in violation of
the certificate of occupancy issued for the building. The statement in this
lease of the nature of the business to be conducted by Tenant shall not be
deemed to constitute a representation or guaranty by Landlord that such use is
lawful or permissible in the premises under the certificate of occupancy for the
building.
POSSESSION.
16. If Landlord shall be unable to give possession of the premises on
the commencement date of the term because of the retention of possession of any
occupant thereof alteration or construction work, or for any other reason except
as hereinafter provided, Landlord shall not be subject to any liability for such
failure. In such event, this lease shall stay in full force and effect, without
extension of its term. However, the rent hereunder shall not commence until the
premises are available for occupancy by Tenant. If delay in possession is due to
work, changes or decorations being made by Tenant, or is otherwise caused by
Tenant, there shall be
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no rent abatement and the rent shall commence on the date specified in this
lease. If permission is given to Tenant to occupy the demised premises or other
premises prior to the date specified as the commencement of the term, such
occupancy shall be deemed to be pursuant to the terms of this lease, except that
the parties shall separately agree as to the obligation of Tenant to pay rent
for such occupancy. The provisions of this Article are intended to constitute an
"express provision to the contrary" within the meaning of Section 223(a), New
York Real Property Law.
QUIET ENJOYMENT.
17. Landlord covenants that if Tenant pays the rent and performs all of
Tenant's other obligations under this lease, Tenant may peaceably and quietly
enjoy the demised premises, subject to the terms, covenants and conditions of
this lease and to the ground leases, underlying leases and mortgages
hereinbefore mentioned.
RIGHT OF ENTRY.
18. Tenant shall permit Landlord to erect and maintain pipes and
conduits in and through the premises. Landlord or its agents shall have the
right to enter or pass through the premises at all times, by master key, by
reasonable force or otherwise, to examine the same, and to make such repairs,
alterations or additions as it may deem necessary or desirable to the premises
or the building, and to take all material into and upon the premises that may be
required therefor. Such entry and work shall not constitute an eviction of
Tenant in whole or in part, shall not be grounds for any abatement of rent, and
shall impose no liability on Landlord by reason of inconvenience or injury to
Tenant's business. Landlord shall have the right at any time, without the same
constituting an actual or constructive eviction, and without incurring any
liability to Tenant, to change the arrangement and/or location of entrances or
passageways, windows, corridors, elevators, stairs, toilets, or other public
parts of the building, and to change the name or number by which the building is
known.
VAULT SPACE.
19. Anything contained in any plan or blueprint to the contrary
notwithstanding, no vault or other space not within the building property line
is demised hereunder. Any use of such space by Tenant shall be deemed to be
pursuant to a license, revocable at will by Landlord, without diminution of the
rent payable hereunder. If Tenant shall use such vault space, any fees, taxes or
charges made by any governmental authority for such space shall be paid by
Tenant.
INDEMNITY.
20. Tenant shall indemnify, defend and save Landlord harmless from and
against liability or expense arising from the use or occupation of the premises
by Tenant, or anyone on the premises with Tenant's permission, or from any
breach of this lease.
LANDLORD'S LIABILITY.
21. This lease and the obligations of Tenant hereunder shall in no way
be affected because Landlord is unable to fulfill any of its obligations or to
supply any service, by reason of strike or other cause not within the Landlord's
control. Landlord shall have the right, without
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incurring any liability to Tenant, to stop any service because of accident or
emergency, or for repairs, alterations or improvements, necessary or desirable
in the judgement of Landlord, until such repairs, alterations or improvements
shall have been completed. Landlord shall not be liable to Tenant or anyone
else, for any loss or damage to its agents, employees, or invitees person,
property or business, unless due to the negligence of Landlord nor shall
Landlord be liable for any latent defect in the premises or the building.
Tenant, during the term of the lease, shall carry public liability and property
damage insurance, from a company authorized to do business in New York, with
limitations acceptable to Landlord and its designees as additional insureds.
Evidence of the policies, and of their timely renewal, shall be delivered to
Landlord. All such insurance shall contain an agreement by the insurance company
that the policy or policies will not be cancelled or the coverage changed,
without thirty (30) days' prior written notice to the Landlord. Tenant agrees to
look solely to Landlord's estate and interest in the land and building, or the
lease of the building or of the land and building, and the demised premises, for
the satisfaction of any right or remedy of Tenant for the collection of a
judgement (or other judicial process) requiring the payment of money by
Landlord, in the event of any liability by Landlord, and no other property or
assets of Landlord shall be subject to levy, execution or other enforcement
procedure for the satisfaction of Tenant's remedies under or with respect to
this lease, the relationship of landlord and tenant hereunder, or Tenant's use
and occupancy of the premises or any other liability of Landlord to Tenant
(except for negligence).
CONDITION OF PREMISES.
22. Tenant acknowledges that Landlord has made no representation of
promise, except as herein expressly set forth. Tenant agrees to accept the
premises "as is", except for any work which Landlord has expressly agreed in
writing to perform.
COST OF LIVING ADJUSTMENTS.
23. The fixed annual rent reserved in this lease and payable hereunder
shall be adjusted, as of the times and in the manner set forth in this Article:
(a) Definitions: For the purpose of this Article, the
following definitions shall apply:
(i) The term "Base Year" shall mean the full 1999
calendar year.
(ii) The term "Price Index" shall mean the "Consumer
Price Index" published by the Bureau of Labor Statistics of the U.S. Department
of Labor, All Items, New York, N.Y.--Northeastern N.J., all urban consumers
(presently denominated "CPI-U"), or a successor or substitute index
appropriately adjusted.
(iii) The term "Price Index for the Base Year" shall
mean the average of the monthly All Items Price Indexes for each of the 12
months of the Base Year.
(b) Effective as of each January and July subsequent to the
Base Year, there shall be made a cost of living adjustment of the fixed annual
rental rate payable hereunder. The July adjustment shall be based on the
percentage difference between the Price Index for the preceding month of June
and the Price Index for the Base year. The January adjustment shall be
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based on such percentage difference between the Price Index for the preceding
month of December and the Price Index for the Base Year.
(i) In the event the Price Index for June in any
calendar year during the term of this lease reflects an increase over the Price
Index for the Base Year, then the fixed annual rent herein provided to be paid
as of the July 1st following such month of June (unchanged by any adjustments
under this Article) shall be multiplied by the percentage difference between the
Price Index for the Base Year, and the resulting sum shall be added to such
fixed annual rent, effective as of such July 1st. Said adjusted fixed annual
rent shall thereafter be payable hereunder, in equal monthly installments until
it is readjusted pursuant to the terms of this lease.
(ii) In the event the Price Index for December in any
calendar year during the terms of this lease reflects an increase over the Price
Index for the Base Year, then the fixed annual rent herein provided to be paid
as of the January 1st following such month of December (unchanged by any
adjustments under this Article) shall be multiplied by the percentage difference
between the Price Index for December and the Price Index for the Base Year, and
the resulting sum shall be added to such fixed annual rent effective as of
January 1st. Said adjusted fixed annual rent shall thereafter be payable
hereunder, in equal monthly installments, until it is readjusted pursuant to the
terms of this lease.
The following illustrates the intentions of the parties hereto as to
the computation of the aforementioned costs of living adjustment in the annual
rent payable hereunder:
Assuming the said fixed annual rent is $10,000, that the Price
Index for the base Year was 102.0 and that the Price Index for the
month of June in a calendar year following the Base year was 105.0 then
the percentage increase thus reflected, i.e., 2.941% (3.0/102.0) would
be multiplied by $10,000, and said fixed annual rent would be increased
by $294.10 effective as of July 1st of said calendar year.
In the event that the Price Index ceases to use 1982-84 = 100 as the
basis of calculations, or if a substantial change is made in the terms of number
of items contained in the Price Index, then the Price Index shall be adjusted to
the figure that would have been arrived at had the manner of computing the Price
Index in effect at the date of this lease not been altered. In the event such
Price Index (or a successor or substitute index) is not available, a reliable
governmental or other non-partisan publication evaluating the information
thereto used in determining the Price Index shall be used.
(c) Landlord will cause statements of the cost of living
adjustments provided for in subdivisions (b) to be prepared in reasonable detail
and delivered to Tenant.
(d) In no event shall the fixed annual rent originally
provided to be paid under this lease (exclusive of the adjustments under this
Article) be reduced by virtue of this Article.
(e) Any delay or failure of Landlord, beyond July or January
of any year, computing of billing for the rent adjustments hereinabove provided,
shall not constitute a waiver of or in any way impair the continuing obligation
of Tenant to pay such rent adjustment hereunder.
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(f) Notwithstanding any expiration or termination of this
lease prior to the lease expiration date (except in the case of a cancellation
by mutual agreement) Tenant's obligation to pay rent as adjusted under this
Article shall continue and shall cover all periods up to the lease expiration
date, and shall survive any expiration or termination of this lease.
(g) Notwithstanding any provision to the contrary, cost of
living adjustments in the fixed annual rent rate for any calendar year are
limited in an amount equal to 3% of the fixed annual rental payable under this
lease as of December 1st of the immediately preceding calendar year, including
any adjustments under this article.
TAX ESCALATION
24. Tenant shall pay Landlord, as additional rent, tax escalation in
accordance with this Article:
(a) For purposes of this lease the rentable square foot areas
of the presently demised premises shall be deemed to be 12,223 square feet.
(b) Definitions: For the purpose of this Article, the
following definitions shall apply:
(i) The term "base year tax" as hereinafter set forth
for the determination of real estate tax escalation, shall mean the New York
City real estate tax year commencing July 1, 1998 and ending June 30, 1999.
(ii) The term "The Percentage", for purposes of
computing tax escalation, shall mean 4.410% (4.410%). The Percentage has been
computed on the basis of a fraction, the numerator of which is the rentable
square foot area of the demised premises and the denominator of which is the
total rentable square foot area of the office and commercial space in the
building project. The parties acknowledge and agree that the total rentable
square foot area of the office and commercial space in the building project
shall be deemed to be 277,155 sq. ft.
(iii) The term "the building project" shall mean the
aggregate combined parcel of land on a portion of which are the improvements of
which the demised premises form a part, with all the improvements thereon, said
improvements being a part of the block and lot for tax purposes which are
applicable to the aforesaid land.
(iv) The term "comparative year" shall mean the
twelve (12) months following the base tax year, and each subsequent Period of
twelve (12) months (or such other Period of twelve (12) months occurring during
the term of this lease as hereafter may be duly adopted as the tax year for real
estate tax purposes by the City of New York).
(v) The term "real estate taxes" shall mean the total
of all taxes and special or other assessments levied, assessed or imposed at any
time by any governmental authority upon or against the building project, and
also any tax or assessment levied, assessed or imposed at any time by any
governmental authority in connection with the receipt of income or rents from
said building project to the extent that same shall be in lieu of all or a
portion of any of the aforesaid taxes or assessments, or additions or increases
thereof, upon or against said
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building project. If, due to a future change in the method of taxation or in the
taxing authority, or for any other reason, a franchise, income, transit, profit
or other tax or governmental imposition, however designated, shall be levied
against landlord in substitution in whole or in part for the real estate taxes,
or in lieu of additions to or increases of said real estate taxes, then such
franchise, income, transit, profit or other tax or governmental imposition shall
be deemed to be included within the definition of "real estate taxes" for the
purposes hereof. As to special assessments which are payable over a period of
time extending beyond the term of this lease, only a pro rata portion thereof
covering the portion of the term of this lease unexpired at the time of the
imposition of such assessment, shall be included in "real estate taxes." If by
law, any assessment may be paid in installments, then, for the purposes hereof
(a) such assessment shall be deemed to have been payable in the maximum number
of installments permitted by law and (b) there shall be included in real estate
taxes, for each comparative year in which such installments may be paid, the
installments of such assessment so becoming payable during such comparative
year, together with interest payable during such comparative year.
(vi) Where more than one assessment is imposed by the
City of New York for any tax year, whether denominated an "actual assessment" or
a "transitional assessment" or otherwise, then the phrases herein "assessed
value" and "assessments" shall mean whichever of the actual, transitional or
other assessment is designated by the City of New York as the taxable assessment
for that tax year.
(vii) The phrase "real estate taxes payable during
the base tax year" shall mean that amount obtained by multiplying the assessed
value of the land and buildings of the building project for the base tax year by
the tax rate for the base tax year for each $100 of such assessed value.
(c) 1. In the event that the real estate taxes payable for any
comparative year shall exceed the amount of the real estate taxes payable during
the base tax year, tenant shall pay to landlord, as additional rent for such
comparative year, an amount equal to The Percentage of the excess. Before or
after the start of each comparative year, Landlord shall furnish to Tenant a
statement of the real estate taxes payable for such comparative year, and a
statement of the real estate taxes payable during the base tax year. If the real
estate taxes payable for such comparative year exceed the real estate taxes
payable during the base tax year, additional rent for such comparative year, in
an amount equal to The Percentage of the excess, shall be due from Tenant to
Landlord, and such additional rent shall be payable by Tenant to Landlord within
ten (10) days after receipt of the aforesaid statement. The benefit of any
discount for any earlier payment or prepayment of real estate taxes shall accrue
solely to the benefit of Landlord, and such discount shall not be subtracted
from the real estate taxes payable for any comparative year.
Additionally, Tenant shall pay to Landlord, on demand, a sum equal to
The Percentage of any business improvement district assessment payable by the
building project.
2. Should the real estate taxes payable during the base tax
year be reduced by final determination of legal proceedings, settlement or
otherwise, then, the real estate taxes payable during the base tax year shall be
correspondingly revised, the additional rent theretofore paid or payable
hereunder for all comparative years shall be recomputed on the basis of such
reduction, and tenant shall pay to Landlord as additional rent, within ten (10)
days after
11
being billed therefor, any deficiency between the amount of such additional rent
as theretofore computed and the amount thereof due as the result of such
recomputations. Should the real estate taxes payable during the base tax year be
increased by such final determination of legal proceedings, settlement or
otherwise, then appropriate recomputation and adjustment also shall be made.
3. If after Tenant shall have made a payment of additional
rent under this subdivision (c), Landlord shall receive a refund of any portion
of the real estate taxes payable for any comparative year after the base tax
year on which such payment of additional rent shall have been based, as a result
of a reduction of such real estate taxes by final determination of legal
proceedings, settlement or otherwise. Landlord shall within ten (10) days after
receiving the refund pay to Tenant The Percentage of the refund less The
Percentage of expenses (including attorneys' and appraisers' fees) incurred by
Landlord in connection with any such application or proceeding. If prior to the
payment of taxes for any comparative year, Landlord shall have obtained a
reduction of that comparative year's assessed valuation of the building project,
and therefore of said taxes, then the term "real estate taxes" for that
comparative year shall be deemed to include the amount of Landlord's expenses in
obtaining such reduction in assessed valuation, including attorneys' and
appraisers' fees.
4. The statements of the real estate taxes to be furnished by
Landlord as provided above shall be certified by Landlord and shall constitute a
final determination as between Landlord and Tenant of the real estate taxes for
the Periods represented hereby, unless Tenant within thirty (30) days after they
are furnished shall give a written notice to Landlord that it disputes their
accuracy or their appropriateness, which notice shall specify the particular
respects in which the statement is inaccurate or inappropriate. If Tenant shall
so dispute said statement then, pending the resolution of such dispute, tenant
shall pay the additional rent to Landlord in accordance with the statement
furnished by Landlord.
5. In no event shall the fixed annual rent under this lease
(exclusive of the additional rents under this Article) be reduced by virtue of
this Article.
6. If the commencement date of the term of this lease is not
the first day of the first comparative year, then the additional rent due
hereunder for such first comparative year shall be a proportionate share of said
additional rent for the entire comparative year, said proportionate share to be
based upon the length of time that the lease term will be in existence during
such first comparative year. Upon the date of any expiration or termination of
this lease (except termination because of Tenant's default) whether the same be
the date hereinabove set forth for the expiration of the term or any prior or
subsequent date, a proportionate share of said additional rent for the
comparative year during which such expiration or termination occurs shall
immediately become due and payable by Tenant to Landlord, if it was not
theretofore already billed and paid. The said proportionate share shall be based
upon the length of time that this lease shall have been in existence during such
comparative year. Landlord shall promptly cause statements of said additional
rent for that comparative year to be prepared and furnished to lessee. Landlord
and Tenant shall thereupon make appropriate adjustments of amounts then owing.
12
7. Landlord's and Tenant's obligations to make the adjustments
referred to in subdivision (6) above shall survive any expiration or termination
of this lease.
8. Any delay or failure of lessor in billing any tax
escalation hereinabove provided shall not constitute a waiver of or in any way
impair the continuing obligation of lessee to pay such tax escalation hereunder.
SERVICES.
25. [omitted]
JURY WAIVER.
26. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim involving any matter whatsoever arising out of or in
any way connected with this lease, the relationship of landlord and tenant,
Tenant's use or occupancy of the premises (except for personal injury or
property damage) or involving the right to any statutory relief or remedy.
Tenant will not interpose any counterclaim or any nature in any summary
proceeding.
NO WAIVER, ETC.
27. No act or omission of Landlord or its agents shall constitute an
actual or constructive eviction, unless Landlord shall have first received
written notice of Tenant's claim and shall have had a reasonable opportunity to
verify such claim.* In the event that any payment herein provided for by Tenant
to Landlord shall become overdue for a period in excess of ten (10) days,** then
at Landlord's option a "late charge" shall become due and payable to Landlord,
as additional rent, from the date it was due until payment is made at the
following rates: for individual and partnership Tenants, said late charge shall
be computed at the maximum legal rate of interest; for corporate or governmental
entity Tenants the late charge shall be computed at two percent per month unless
there is an applicable maximum legal rate of interest which then shall be used.
No act or omission of Landlord or its agents shall constitute an acceptance of a
surrender of the premises, except a writing signed by Landlord. The delivery of
keys to Landlord or its agents shall not constitute a termination of this lease
or a surrender of the premises. Acceptance by Landlord of less than the rent
herein provided shall at Landlord's option be deemed on account of earliest rent
remaining unpaid. No endorsement on any check, or letter accompanying rent,
shall be deemed an accord and satisfaction, and such check may be cashed without
prejudice to Landlord. No waiver of any provision of this lease by Landlord
shall be effective, unless such waiver be in writing signed by Landlord. This
lease contains the entire agreement between the parties, and no modification
thereof shall be binding unless in writing and signed by the party concerned.
Tenant shall comply with the rules and regulations printed in this lease, and
any reasonable modifications thereof or additions thereto. Landlord shall not be
liable to Tenant for the violation of such rules and regulations by any other
tenant. Failure of Landlord to enforce any provision of this lease, or any rule
or regulations, shall not be construed as the waiver of any subsequent violation
of a provision of this lease, or any rule or
-------------------------------
* (Not to exceed two days)
** after written notice by Landlord
13
regulation. This lease shall not be affected by nor shall Landlord in any way be
liable for the closing, darkening or bricking up of windows in the premises, for
any reason, including as the result of construction on any property of which the
premises are not a part or by Landlord's own acts.
28. [omitted]
NOTICES.
29. Any xxxx, notice or demand from Landlord to Tenant, may be
delivered personally at the premises or sent by registered or certified mail.
Such xxxx, notice or demand shall be deemed to have been given at the time of
delivery or mailing.* Any notice from Tenant to Landlord must be sent by
registered or certified mail to the last address designated in writing by
Landlord.
WATER.
30. Tenant shall pay the amount of Landlord's cost for all water used
by Tenant for any purpose other than ordinary lavatory uses, and any sewer rent
or tax based thereon. Landlord may install a water meter to measure Tenant's
water consumption for all purposes and Tenant agrees to pay for the installation
and maintenance thereof and for water consumed as shown on said meter. If water
is made available to Tenant in the building or the demised premises through a
meter which also supplies other premises, or without a meter, then Tenant shall
pay to Landlord $None per month for water.
SPRINKLER SYSTEM.
31. If there shall be a "sprinkler system" in the demised premises for
any period during this lease, Tenant shall pay $None per month for sprinkler
supervisory service. If such sprinkler system is damaged by any negligent act of
Tenant or its agents, employees, licensees or visitors, Tenant shall restore the
system to good working condition at its own expense. If the New York Board of
Fire Underwriters, the New York Fire Insurance Exchange, the Insurance Services
Office or any governmental authority requires the installation or any alteration
to a sprinkler system by reason of Tenant's particular manner of use of the
premises, including any alteration necessary to obtain the full allowance for a
sprinkler system in the fire insurance rate of landlord, or for any other
reason, Tenant shall make such installation or alteration promptly, and at its
own expense.
HEAT, ELEVATOR, ETC.
32. Landlord shall provide elevator service during all usual business
hours including Saturdays until 1 P.M., except on Sundays, State holidays,
Federal holidays, or Building Service Employees Union Contract holidays.
Landlord shall furnish heat to the premises during the same hours on the same
days in the cold season in each year. Landlord may remove Tenant's
------------------
* Landlord shall send a copy of any notice sent to Tenant alleging a
default under this lease to Loeb & Loeb, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000; Attention: Xxxxx X. Xxxxxxxxx Esq.
14
extraordinary refuse from the building and Tenant shall pay the cost thereof. If
the elevators in the building are manually operated, Landlord may convert to
automatic elevators at any time, without in any way affecting Tenant's
obligations hereunder.
SECURITY DEPOSIT.
33. Tenant has deposited with Landlord the sum of $30,710.29 as
security for the performance by Tenant of the terms of this lease. Landlord may
use any part of the Security to satisfy any default of Tenant and any expenses
arising from such default, including but not limited to any damages or rent
deficiency before or after re-entry by Landlord. Tenant shall, upon demand,
deposit with Landlord the full amount so used, in order that Landlord shall have
the full security deposit on hand at all times during the term of this lease. If
Tenant shall comply fully with the terms of this lease, the security shall be
returned to Tenant after the date fixed as the end of the lease. In the event of
a sale or lease of the building containing the premises, Landlord may transfer
the security to the purchaser or tenant, and Landlord shall thereupon be
released from all liability for the return of the security. This provision shall
apply to every transfer or assignment of the security to a new Landlord. Tenant
shall have no legal power to assign or encumber the security herein described.
ELECTRICITY.
34. Terms and conditions with respect to electricity rent inclusion, or
with respect to sub-metering, as the case may be, and general conditions with
respect to either, are set forth in Article 41 in the Rider annexed to and made
part of this lease.
RENT CONTROL.
35. In the event the fixed annual rent or additional rent or any part
thereof provided to be paid by Tenant under the provisions of this lease during
the demised term shall become uncollectible or shall be reduced or required to
be reduced or refunded by virtue of any Federal, State, County or City law,
order or regulation, or by any direction of a public officer or body pursuant to
law, or the orders, rules, code or regulations of any organization or entity
formed pursuant to law, whether such organization or entity be public or
private, then Landlord, at its option, may at any time thereafter terminate this
lease, by not less than thirty (30) days' written notice to Tenant, on a date
set forth in said notice, in which event this lease and the term hereof shall
terminate and come to an end on the date fixed in said notice as if the said
date were the date originally fixed herein for the termination of the demised
term. Landlord shall not have the right so to terminate this lease if Tenant
within such period of thirty (30) days shall in writing lawfully agree that the
rentals herein reserved are a reasonable rental and agree to continue to pay
said rentals, and if such agreement by Tenant shall then be legally enforceable
by Landlord.
SHORING.
36. Tenant shall permit any person authorized to make an excavation on
land adjacent to the building containing the premises to do any work within the
premises necessary to preserve the wall of the building from injury or damage,
and Tenant shall have no claim against Landlord for damages or abatement of rent
by reason thereof.
15
EFFECT OF CONVEYANCE, ETC.
37. If the building containing the premises shall be sold, transferred
or leased, or the lease thereof transferred or sold, Landlord shall be relieved
of all future obligations and liabilities hereunder and the purchaser,
transferee or tenant of the building shall be deemed to have assumed and agreed
to perform all such obligations and liabilities of Landlord hereunder.
RIGHTS OF SUCCESSORS AND ASSIGNS.
38. This lease shall bind and inure to the benefit of the heirs,
executors, administrators, successors, and, except as otherwise provided herein,
the assigns of the parties hereto. If any provision of any Article of this lease
or the application thereof to any person or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of that Article, or the application
of such provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each provision
of said Article and of this lease shall be valid and be enforced to the fullest
extent permitted by law.
CAPTIONS.
39. The captions herein are inserted only for convenience, and are in
no way to be construed as a part of this lease or as a limitation of the scope
of any provision of this lease.
LEASE SUBMISSION.
40. Landlord and Tenant agree that this lease is submitted to Tenant on
the understanding that it shall not be considered an offer and shall not bind
Landlord in any way unless and until (i) Tenant has duly executed and delivered
duplicate originals thereof to Landlord and (ii) Landlord has executed and
delivered one of said originals to Tenant.
SEE RIDER(S) ANNEXED HERETO AND MADE A PART HEREOF
In Witness Whereof, Landlord and Tenant have executed this lease as of
the day and year first above written.
/s/INVESTMENT PROPERTIES ASSOCIATES
C/O HELMSLEY SPEAR, INC.,
AGENTS................................(L.S.)
-----------------------------------
Witness for Landlord
BY: /s/ XXXXXX XXXXXXXXX.............(L.S.)
----------------------------------- XXXXXX XXXXXXXXX, C.O.O.
Witness for Tenant
BY: /s/ XXXX XXXXXXX.................(L.S.)
DOUBLE CLICK, INC.
16
ACKNOWLEDGEMENTS.
State of New York )
ss.:
County of New York)
On the day of , 19 , before me
personally came
to me known and known to me to be the individual described in,
and who executed, the foregoing instrument, and acknowledged
to me that he executed the same.
-----------------------------------------------------
Notary Public
State of New York )
ss.:
County of New York)
On the day of , 19 , before me
personally came
to me known, who, being by me duly sworn, did depose and say
that he resides at No.
that he is the of the
corporation described in, and which executed, the foregoing
instrument; and that he signed h name thereto by authority
of the Board of Directors of said corporation.
-----------------------------------------------------
Notary Public
GUARANTY.
For Value Received and in consideration of the letting of the premises within
mentioned to the within named Tenant, the undersigned do hereby covenant and
agree, to and with the Landlord and the Landlord's legal representatives, that
if default shall at any time be made by the said Tenant in the payment of the
rent and the performance of the covenants contained in the within lease, on the
Tenant's part to be paid and performed, that the undersigned will well and truly
pay the said rent, or any arrears thereof that may remain due unto said
Landlord, and also pay all damages that may arise in consequence of the
non-performance of said covenants, or either of them, without requiring notice
of any such default from the Landlord. The undersigned hereby waives all right
to trial by jury in any action or proceeding hereinafter instituted by the
Landlord, to which the undersigned may be a party.
IN WITNESS WHEREOF, the undersigned has set hand and seal this
day of 19
..........................................................................(L.S.)
..........................................................................(L.S.)
State of New York )
ss.:
County of New York)
On the day of , 19 , before me
personally came
to me known and known to me to be the individual described in,
and who executed the foregoing Guaranty and acknowledged to me
that he executed the same.
-----------------------------------------------------
Notary Public
17
66 REV. 9-94
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Date
Space
From
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HELMSLEY-SPEAR, INC.
Real Estate
Lincoln Building
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
Phone (000) 000-0000
18
[Plan of 16th Floor]
19
RIDER ANNEXED TO AND MADE
PART OF A LEASE BETWEEN
INVESTMENT PROPERTIES ASSOCIATES, LANDLORD
AND DOUBLE CLICK, INC., TENANT
ELECTRICITY
41. Tenant agrees that Landlord may furnish electricity to Tenant on a
"submetering" basis or on a "rent inclusion" basis. 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.
(a) Submetering: If and so long as Landlord provides
electricity to the demised premises on a submetering basis, Tenant covenants and
agrees to purchase the same from Landlord or Landlord's designated agent at
charges, terms and rates set, from time to time, during the term of this lease
by Landlord but not more than those specified in the service classification in
effect on January 1, 1970 pursuant to which Landlord then purchased electric
current from the public utility corporation serving the part of the city where
the building is located; provided however, said charges shall be increased in
the same percentage as any percentage increase in the billing to Landlord for
electricity for the entire building, by reason of increase in Landlord's
electric rates or service classifications, subsequent to January 1, 1970, and so
as to reflect any increase in Landlord's electric charges, including changes in
market prices for electricity from utilities and/or other providers, in fuel
adjustments, or by taxes or charges of any kind imposed on Landlord's
electricity purchases or redistribution, or for any other such reason,
subsequent to said date. Any such percentage increase in Landlord's billing for
electricity due to changes in rates, service classifications, or market prices,
shall be computed by the application of the average consumption (energy and
demand) of electricity for the entire building for the twelve (12) full months
immediately prior to the rate and/or service classification change, or any
changed methods of or rules on billing for same, applied on a consistent basis
to the new rate and/or service classification or market price, and to the
service classification and rate in effect on January 1, 1970. If the average
consumption of electricity for the entire building for said prior twelve (12)
months cannot reasonably be applied and used with respect to changed methods of
or rules on billing, then the percentage shall be computed by the use of the
average consumption (energy and demand) for the entire building for the first
three (3) months after such change, projected to a full twelve (12) months, so
as to reflect the different seasons, and that same consumption, so projected,
shall be applied to the service classification and rate in effect on January 1,
1970. Where more than one meter measures the service of Tenant in the building,
the service rendered through each meter may be computed and billed separately in
accordance with the rates herein specified. Bills therefore shall be rendered at
such times as Landlord may elect and the amount, as computed from a meter, shall
be deemed to be, and be paid as, additional rent. In the event that such bills
are not paid within five (5) days after the same are rendered, Landlord may,
without further notice, discontinue the service of electric current to the
demised premises without releasing Tenant from any liability under this lease
and without Landlord
20
or Landlord's agent incurring any liability for any damage or loss sustained by
lessee by such discontinuance of service. 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.
(b) Rent Inclusion: If and so long as Landlord provides
electricity to the demised premises 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 $3.15 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; and (ii) that said ERIF, which shall
be subject to periodic adjustments as hereinafter provided, has been partially
based upon an estimate of the Tenant's connected electrical load, in whatever
manner delivered to Tenant, which shall be deemed to be the demand (KW), and
hours of use thereof, which shall be deemed to be the energy (KWH), for ordinary
lighting and light office equipment and the operation of the usual small
business machines, including Xerox or other copying machines (such lighting and
equipment are hereinafter called "Ordinary Equipment") during ordinary business
hours ("ordinary business hours" shall be deemed to mean 50 hours per week),
with Landlord providing an average connected load of 4'/2 xxxxx of electricity
for all purposes per rentable square foot. Any installation and use of equipment
other than Ordinary Equipment and/or any connected load and/or energy usage by
Tenant in excess of the foregoing shall result in adjustment of the ERIF as
hereinafter provided. For purposes of this lease the rentable square foot area
of the presently demised premises shall be deemed to be 12,223 square feet.
If the cost to Landlord of electricity shall have been, or shall be,
increased or decreased subsequent to May l, 1996 (whether such change occurs
prior to or during the term of this Lease), by change in Landlord's electric
rates or service classifications, or electricity charges, including changes in
market prices, or by any increase, subsequent to the last such electric rate or
service classification change or market price change, in fuel adjustments or
charges of any kind, or by taxes, imposed on Landlord's electricity purchases or
on Landlord's electricity redistribution, or for any other such reason, then the
aforesaid ERIF portion of the fixed annual rent shall be changed in the same
percentage as any such change in cost due to changes in electric rates, service
classifications or market prices, and, also Tenant's payment obligation, for
electricity redistribution, shall change from time to time so as to reflect any
such increase in fuel adjustments or charges, and such taxes. Any such
percentage change in Landlord's cost due to change in Landlord's electric rates
or service classifications or market prices, shall be computed on the basis of
the average consumption of electricity for the building for the twelve full
months immediately prior to the rate change or other such changes in cost,
energy and demand, and any changed methods of or rules on billing for same,
applied on a consistent basis to the new electric rate or service classification
or market price and to the immediately prior existing electric rate or service
classification or market price. If the average consumption (energy and demand)
for the entire building for said prior (12) months cannot reasonably be applied
and used with respect to changed methods of or rules on billing, then the
percentage increase shall be computed by the use of the average consumption
(energy and demand) for the entire building for the first three
21
(3) months after such change, projected to a full twelve (12) months, so as to
reflect the different seasons; and that same consumption, so projected, shall be
applied to the rate and/or service classification or market price which existed
immediately prior to the change. The parties agree that a reputable, independent
electrical consultant firm, selected by Landlord, ("Landlord's electrical
consultant"), shall determine the percentage change for the changes in ERIF due
to Landlord's changed costs, and that Landlord's electrical consultant may from
time to time make surveys in the demised premises of the electrical equipment
and fixtures and use of current. (i) If such survey shall reflect a connected
electrical load in the demised premises in excess of 4 1/2 xxxxx of electricity
for all purposes per rentable square foot and/or energy usage in excess of
ordinary business hours (each such excess hereinafter called "excess
electricity") then the connected electrical load and/or the hours of use
portion(s) of the then existing ERIF shall be increased by an amount which is
equal to a fraction of the then existing ERIF, the numerator of which is the
excess electricity (i.e. excess connected load and/or excess usage) and the
denominator of which is the connected load and/or the energy usage which was the
basis of the then existing ERIF. Such fractions shall be determined by
Landlord's electrical consultant. The fixed annual rent shall then be
appropriately adjusted, effective as of the date of any such change in connected
load and/or usage, as disclosed by said survey. (ii) If such survey shall
disclose installation and use of other than Ordinary Equipment, then effective
as of the date of said survey, there shall be added to the ERIF portion of fixed
annual rent (computed and fixed as hereinbefore described) an additional amount
equal to what would be paid under the SC-4 Rate I Service Classification in
effect on May 1, 1996 (and not the time-of-day rate schedule) for such load and
usage of electricity, with the connected electrical load deemed to be the demand
(KW) and the hours of use thereof deemed to be the energy (KWH), as hereinbefore
provided, (which addition to the ERIF shall be increased or decreased by all
electricity cost changes of Landlord, as hereinabove provided, from May 1, 1996
through the date of billing).
In no event, whether because of surveys, rates or cost changes, or for
any other reason, is the originally specified $3.15 per rentable square foot
ERIF portion of the fixed annual rent (plus any net increase thereof, but not
decrease, by virtue of all electricity rate, service classification or market
price changes of Landlord subsequent to May 1, 1996) to be reduced.
(c) General Conditions: 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 fifteen (15) 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.
22
At the option of Landlord, Tenant agrees to purchase from Landlord or
its agents all lamps and bulbs used in the demised premises and to pay for the
cost of installation thereof. Supplementing Article 35 hereof, if all or part of
the submetering additional rent or the ERIF payable in accordance with
Subdivision (A) or (B) of this Article becomes uncollectible or reduced or
refunded by virtue of any law, order or regulation, the parties agree that, at
Landlord's option, in lieu of submetering additional rent or 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 shall be increased by an "alternative charge" which shall be a
sum equal to $3.15 per year per rentable square foot of the demised premises,
changed in the same percentage as any increases in the cost to Landlord for
electricity for the entire building subsequent to May 1, 1996, because of
electric rate, service classification or market pace changes, such percentage
change to be computed as in Subdivision (B) provided.
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. 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 installation. Tenant agrees not to connect any additional electrical
equipment to the building electric distribution system, other than lamps,
typewriters and other small office machines which consume comparable amounts of
electricity, without Landlord's prior written consent, which consent shall not
be unreasonably withheld. Any riser or risers to supply Tenant's electrical
requirements, upon written request of Tenant, will be installed by Landlord, at
the sole cost and expense of Tenant, if, in Landlord's sole judgment, the same
are necessary and will not cause permanent damage or injury to the building or
demised premises 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 submetering additional rent or ERIE, 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) plus 5% thereof for transmission
line loss, plus 15% thereof for other redistribution costs. The Landlord
reserves the right, at any time upon thirty (30) days' written notice, to change
its furnishing of electricity to Tenant from a rent inclusion basis to a
submetering basis, or vice versa, or 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,
submetering, or any other basis at any time, upon thirty (30) days' written
notice to the Tenant, 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,
23
risers, or other equipment or connections necessary to furnish electricity on a
submetering basis or to enable Tenant to obtain electric current directly from
such utility and/or other providers shall be installed at Tenant's sole cost and
expense. Only rigid conduit or electricity metal tubing (EMT) will be allowed.
The Landlord, upon the expiration of the aforesaid thirty (30) days' written
notice to the Tenant may discontinue furnishing the electric current but this
lease shall otherwise remain in full force and effect. 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.
24
Dated As of September 1, 1998
BETWEEN
INVESTMENT PROPERTIES ASSOCIATES
AND
DOUBLECLICK, INC.
PAR 42 The Lessee agrees that the charge for electricity for the premises shall
be $3,208.54 per month, which ERIF shall be subject to increase because of rate
changes after the date of this lease, or based on Lessee's consumption, as
provided in Article 41.
PAR 43 This lease is prepared by the managing agent for the Lessee. It is not
binding upon either party until it is signed by the Lessee and the Lessor and
returned to the Lessee.
PAR 44 Lessor shall cause the public halls and public portions of the building
to be kept clean in accordance with Lessor's customary standards for the
building. Lessee shall at its own expense keep the premises clean, and in order,
to the satisfaction of the Lessor. It is expressly agreed that the Lessee shall
keep the public corridors free of all refuse and shall at no time store any
furniture, cartons, displays or any other articles in said public corridors. It
is the Lessee's sole responsibility for the removal of all its refuse. In the
event that any such item is found in the public corridor or freight halls, then
the Lessor shall have the right to remove such items to the basement and charge
Lessee for storage and moving costs for such work or arrange with a carting
company to remove such refuse for which the Lessee shall reimburse the Lessor
for such expenses. It is also agreed and understood that, so long as a freight
elevator is available to Lessee, hand trucks may not be used in the passenger
elevators by the Lessee, its invitees, or any person making deliveries to the
Lessee.
PAR 45 Except as expressly set forth herein, Lessee agrees to accept these
premises "as is" in all respects except for the repair of the existing air
conditioning units on the 16th floor as follows in sub-paragraph (A).
(A) Lessor represents and warrants to Lessee that the air conditioning system
and perimeter radiators and radiant heating serving the premises shall be in
good working order on the commencement of the lease. Lessee shall, throughout
the term of this lease, maintain a service contract on the air conditioning
system serving exclusively the premises.
Notwithstanding anything in this lease to the contrary, the Lessor shall
maintain the air conditioning system in good working order, including, without
limitation, all necessary inspections, filter changes and other general
maintenance requirements, for a period of one (1) year following the
commencement date of this lease. Further, Lessee shall not be obligated to
replace the air conditioning system or make any major repairs thereto. If
required, any such replacement or major repairs shall be performed by Lessor.
PAR 46 Notwithstanding anything in Paragraph 10 of this lease to the contrary,
if the premises or the building are damaged, and such damage materially
interferes with Lessee's ability to
25
operate its business within the premises and such damage is not repaired within
sixty (60) days or, if in Lessee's reasonable opinion, such damage cannot be
repaired within sixty (60) days after the date of such damage, then Lessee may
terminate this lease by giving Lessor written notice of such termination by
certified mail return receipt requested. Further notwithstanding anything in
Paragraph 10 to the contrary, Lessor hereby waives any claims for damages or
other liability that Lessor may have against Lessee to the extent that same are
covered by Lessor's insurance or would be covered by any insurance that a
reasonably prudent owner of similar buildings in the general area of the subject
building (within which the premises are located) would carry.
PAR 47 If Lessor must make any repairs to the premises or must otherwise enter
the premises, Lessor shall use reasonable efforts to minimize any interference
with Lessee's business.
PAR 48 If there are any inconsistencies between the terms of this Rider and
those of the printed form of this lease, the terms of this rider shall control.
XXX 00 Xxxxxx xxxxxxxxx, represents and warrants that Lessee has had no dealings
or communications with any broker or agent other than Xxxxxxx & Xxxxxxxxx Inc.
and Helmsley Spear, Inc. (collectively, the "Brokers") in connection with the
consummation of this lease and Lessee covenants and agrees to pay, hold harmless
and to indemnify Lessor from and against any and all cost, expense (including
reasonable attorney's fees) or liability for any compensation, commissions or
charges claimed by any broker or agent with whom Lessee has had dealings or
communications with respect to this lease, other than the Brokers. Lessor
covenants and agrees to pay the Brokers and to pay, hold harmless and to
indemnify Lessee from and against any and all cost, expense (including
reasonable attorney's fees) or liability for any compensation, commissions, or
charges claimed by any broker or agent with whom Lessor has had dealings or
communications with respect to this lease.
PAR 50 Lessor agrees that Lessee may, during the term of this Lease, use,
without charge, any chase or shaft leading up to the premises for the
installation of voice and data communication cabling provided such installation
is (a) at the sole cost and expense of Lessee, and (b) performed in compliance
with all applicable laws (including the obligation to obtain any necessary
permits and furnish copies of same to Lessor upon Lessor's request therefor).
Lessee hereby agrees to indemnify Lessor and save Lessor harmless from and
against any claims or liability arising out of Lessee's installation of such
cabling.
26
------------------------------------------------------------------------
RIDER ANNEXED TO AND MADE A PART OF LEASE BETWEEN
Investment Properties Associates LANDLORD
AND DoubleClick, Inc. TENANT
------------------------------------------------------------------------
RULES AND REGULATIONS REFERRED
TO IN THIS LEASE
No animals, birds, bicycles or vehicles shall be brought into or kept
in the premises. The premises shall not be used for manufacturing or commercial
repairing or for sale or display or merchandise or as a lodging place, or for
any immoral or illegal purpose, nor shall the premises be used for a public
stenographer or typist; xxxxxx or beauty shop; telephone, secretarial or
messenger service; employment, travel or tourist agency; school or classroom; or
commercial document reproduction. Tenant shall not cause or permit in the
premises any disturbing noises which may interfere with occupants of this or
neighboring buildings, any cooking or objectionable odors, or any nuisance of
any kind, or any inflammable or explosive fluid, chemical or substance.
Canvassing, soliciting and peddling in the building are prohibited, and each
tenant shall cooperate so as to prevent the same.
The toilet rooms and other water apparatus shall not be used for any
purposes other than those for which they were constructed, and no sweepings,
rags, ink, chemicals or other unsuitable substances shall be thrown therein.
Tenant shall not throw anything out of doors, windows or skylights, or into
hallways, stairways or elevators, nor place food or objects on outside window
xxxxx. Tenant shall not obstruct or cover the halls, stairways and elevators, or
use them for any purpose other than ingress and egress to or from tenant's
premises, nor shall skylights, windows, doors and transoms that reflect or admit
light into the building be covered or obstructed in any way.
Tenant shall not place a load upon any floor of the premises in excess
of the load per square foot which such floor was designed to carry and which is
allowed by law. Landlord reserves the right to prescribe the weight and position
of all safes in the premises. Business machines and mechanical equipment shall
be placed and maintained by tenant, at tenant's expense, only with Landlord's
consent and in settings approved by Landlord to control weight, vibration, noise
and annoyance. Smoking or carrying lighted cigars, pipes or cigarettes in the
elevators of the building is prohibited. If the premises are on the ground floor
of the building the tenant thereof at its expense shall keep the sidewalks and
curb in front of the premises clean and free from ice, snow, dirt and rubbish.
Tenant shall not move any heavy or bulky materials into or out of the
building without Landlord's prior written consent, and then only during such
hours and in such manner as Landlord shall approve. If any material or equipment
requires special handling, tenant shall employ only persons holding a Master
Rigger's License to do such work, and all such work shall comply with all legal
requirements. Landlord reserves the right to inspect all freight to be brought
into the building, and to exclude any freight which violates any rule,
regulation or other provision of this lease.
No sign, advertisement, notice or thing shall be inscribed, painted or
affixed on any part of the building, without the prior written consent of
Landlord. Landlord may remove anything installed in violation of this provision,
and Tenant shall pay the cost of such removal. Interior signs on doors and
directories shall be inscribed or affixed by Landlord at Tenant's expense.
Landlord shall control the color, size, style and location of all signs,
advertisements and notices. No advertising of any kind by Tenant shall refer to
the building, unless first approved in writing by Landlord.
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No article shall be fastened to, or holes drilled or nails or screws
driven into, the ceilings, walls, doors or other portions of the premises, nor
shall any part of the premises be painted, papered or otherwise covered, or in
any way marked or broken, without the prior written consent of Landlord.
No existing locks shall be changed, nor shall any additional locks or
bolts of any kind be placed upon any door or window by Tenant, without the prior
written consent of Landlord. At the termination of this lease, Tenant shall
deliver to Landlord all keys for any portion of the premises or building. Before
leaving the premises at any time, Tenant shall close all windows and close and
lock all doors.
No Tenant shall purchase or obtain for use in the premises any spring
water, ice, towels, food, bootblacking, barbering or other such service
furnished by any company or person not approved by Landlord. Any necessary
exterminating work in the premises shall be done at Tenant's expense, at such
times, in such manner and by such company as Landlord shall require. Landlord
reserves the right to exclude from the building, from 6:00 p.m. to 8:00 a.m.,
and at all hours on Sunday and legal holidays, all persons who do not present a
pass to the building signed by Landlord. Landlord will furnish passes to all
persons reasonably designated by Tenant. Tenant shall be responsible for the
acts of all persons to whom passes are issued at Tenant's request.
Whenever Tenant shall submit to Landlord any plan, agreement or other
document for Landlord's consent or approval, Tenant agrees to pay Landlord as
additional rent, on demand, an administrative fee equal to the sum of the
reasonable fees of any architect, engineer or attorney employed by Landlord to
review said plan, agreement or document and Landlord's administrative costs for
same.
The use in the demised premises of auxiliary heating devices, such as
portable electric heaters, heat lamps or other devices whose principal function
at the time of operation is to produce space heating, is prohibited.
In case of any conflict or inconsistency between any provisions of this
lease and any of the rules and regulations as originally or as hereafter
adopted, the provisions of this lease shall control.
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