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Exhibit 10.9
AGREEMENT OF LEASE
BETWEEN
00 XXXXX XXXXXX COMPANY,
OWNER
AND
N2K INC.,
TENANT
PREMISES
PORTIONS TENTH AND ELEVENTH (10TH & 11TH) FLOORS
NEW YORK INFORMATION TECHNOLOGY CENTER
00 XXXXX XXXXXX
XXX XXXX, XXX XXXX
DATED SEPTEMBER 7, 1995
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TABLE OF CONTENTS
ARTICLE 1 Demised Premises, Term, Rents
ARTICLE 2 Use and Occupancy
ARTICLE 3 Alterations
ARTICLE 4 Ownership of Improvements
ARTICLE 5 Repairs
ARTICLE 6 Compliance With Laws
ARTICLE 7 Subordination Attornment, Etc.
ARTICLE 8 Property Loss, Etc.
ARTICLE 9 Destruction-Fire or Other Casualty
ARTICLE 10 Eminent Domain
ARTICLE 11 Assignment and Subletting
ARTICLE 12 Owner's Initial Construction
[Alt.-- Existing Conditions/Owner's Initial Work]
ARTICLE 13 Access to Demised Premises
ARTICLE 14 Vault Space
ARTICLE 15 Certificate of Occupancy
ARTICLE 16 Default
ARTICLE 17 Remedies
ARTICLE 18 Damages
ARTICLE 19 Fees and Expenses; Indemnity
ARTICLE 20 Entire Agreement
ARTICLE 21 End Of Term
ARTICLE 22 Quiet Enjoyment
ARTICLE 23 Escalation
ARTICLE 24 No Waiver
ARTICLE 25 Mutual Waiver of Trial by Jury
ARTICLE 26 Inability to Perform
ARTICLE 27 Notices
ARTICLE 28 Partnership Tenant
ARTICLE 29 Utilities and Services
ARTICLE 30 Table of Contents, Etc.
ARTICLE 31 Miscellaneous Definitions, Severability and Interpretation Provisions
ARTICLE 32 Adjacent Excavation
ARTICLE 33 Building Rules
ARTICLE 34 Broker
ARTICLE 35 Security
ARTICLE 36 Arbitration, Etc.
ARTICLE 37 Parties Bound
ARTICLE 38 Deleted
ARTICLE 39 Renewal Option
ARTICLE 40 Tenant's Right of First Offer for Additional Space
ARTICLE 41 Tenant's Single Termination Option
ARTICLE 42 Satellite Dish
SCHEDULE A Building Rules
ADDENDUM A Owner's Initial Construction
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LEASE dated as of the 7th day of September, 1995, between 00
XXXXX XXXXXX COMPANY, a New York partnership having its principal office at 000
Xxxx Xxxxxx, Xxxxxxx of Manhattan, City, County, and State of New York, as
landlord (referred to as "Owner"), and N2K Inc., a New York corporation having
its principal office at c/o Pryor, Cashman, Xxxxxxx & Xxxxx, 000 Xxxx Xxxxxx,
Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New York 10022, as tenant
(referred to as "Tenant").
W I T N E S S E T H:
Owner and Tenant hereby covenant and agree as follows:
ARTICLE 1
DEMISED PREMISES, TERM, RENTS
SECTION 1.01. DEMISED PREMISES: Owner hereby leases to Tenant
and Tenant hereby hires from Owner those portions of the tenth (10th) and
eleventh (11th) floors indicated by outlining and diagonal markings on the floor
plans initialled by the parties and annexed hereto as Exhibit "1" and Exhibit
"2", respectively, in the building known as 00 Xxxxx Xxxxxx, in the Borough of
Manhattan, City of New York (said building is referred to as the "Building", and
the Building together with the plot of land upon which it stands is referred to
as the "Real Property"), at the annual rental rate or rates set forth in Section
1.03, and upon and subject to all of the terms, covenants and conditions
contained in this Lease. The premises leased to Tenant, together with all
appurtenances, fixtures, improvements, additions and other property attached
thereto or installed therein at the commencement of, or at any time during, the
term of this Lease, other than Tenant's Personal Property (as defined in Article
4), are referred to, collectively, as the "Demised Premises".
SECTION 1.02. DEMISED TERM: A. The Demised Premises are
leased for a term (referred to as the "Demised Term") to commence on October 1,
1995 and to end on February 28, 2001 (subject to the provisions of Subsection B
of this Section 1.02), unless the Demised Term shall sooner terminate pursuant
to any of the terms, covenants or conditions of this Lease or pursuant to law.
B. Notwithstanding anything in Subsection A of this
Section 1.02 to the contrary, if, on or prior to the date set forth in said
Subsection A for the commencement of the Demised Term, Owner shall have failed
substantially to complete Owner's Initial Construction (as defined in Article
12), then: (a) the Demised Term shall not commence on the date set forth in said
Subsection A but shall, instead, commence on a date, fixed by Owner in a notice
to Tenant, not sooner than ten (10) days next following the date of the giving
of such notice, which notice shall state that Owner has, or prior to the
commencement date fixed in said notice will have, substantially completed
Owner's Initial Construction; and (b) the Demised Term shall end on the last day
of the calendar month in which the day immediately preceding the date which is
five (5) months next following the fifth (5th) anniversary date of the
commencement of the Demised Term shall occur, unless sooner terminated pursuant
to any of the terms, covenants or conditions of this Lease or pursuant to law;
and (c) except as aforesaid, neither the validity of this Lease nor the
obligations of Tenant under this Lease shall be affected thereby. The date upon
which the Demised Term shall commence pursuant to
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Subsection A of this Section or pursuant to this Subsection B is referred to as
the "Commencement Date", and the date fixed pursuant to said Subsection A or
this Subsection B as the date upon which the Demised Term shall end is referred
to as the "Expiration Date".
C. Tenant waives any right to rescind this Lease under
Section 223-a of the New York Real Property Law or any successor statute of
similar import then in force and further waives the right to recover any damages
which may result from Owner's failure to deliver possession of the Demised
Premises on the date set forth in Subsection A of this Section, or in any given
pursuant to Subsection B of this Section, for the commencement of the Demised
Term.
D. After the determination of the Commencement Date,
each party agrees, upon demand of the other, to execute, acknowledge and deliver
to each other, an instrument, in form reasonably satisfactory to Owner, setting
forth said Commencement Date and the Expiration Date.
SECTION 1.03. FIXED RENT: A. This Lease is made at the annual
rental rates (referred to as "Fixed Rent") of ONE HUNDRED EIGHT THOUSAND SEVEN
HUNDRED SEVENTY-ONE and 85/100 ($108,771.85) DOLLARS with respect to the period
("First Rent Period") from the Commencement Date to the date three hundred
sixty-five days next following the Commencement Date, ONE HUNDRED EIGHTY-SIX
THOUSAND FOUR HUNDRED SIXTY-SIX and 00/100 ($186,466.00) DOLLARS with respect to
the period ("Second Rent Period") from the date next following the expiration of
the First Rent Period to the last day of the calendar month in which the day
immediately preceding the second anniversary of the Commencement Date shall
occur, and TWO HUNDRED THIRTEEN THOUSAND ONE HUNDRED FOUR and 00/100
($213,104.00) DOLLARS with respect to the remainder of the Demised Term ("The
Third Rent Period").
B. The Fixed Rent, any increases in the Fixed Rent and
any additional rent payable pursuant to the provisions of this Lease shall be
payable by Tenant to Owner at its office (or at such other place as Owner may
designate in a notice to Tenant) in lawful money of the United States which
shall be legal tender in payment of all debts and dues, public and private, at
the time of payment or by Tenant's good check drawn on a bank or trust company
whose principal office is located in New York City and which is a member of the
New York Clearinghouse Association, without prior demand therefor and without
any offset or deduction whatsoever except as otherwise specifically provided in
this Lease. The Fixed Rent shall be payable in equal monthly installments of
NINE THOUSAND SIXTY-FOUR and 32/100 ($9,064.32) DOLLARS with respect to the
First Rent Period, FIFTEEN THOUSAND FIVE HUNDRED THIRTY-EIGHT and 83/100
($15,538.83) DOLLARS with respect to the Second Rent Period and SEVENTEEN
THOUSAND SEVEN HUNDRED FIFTY-EIGHT and 67/100 ($17,758.67) DOLLARS with respect
to the Third Rent Period and shall be payable, in advance, on the first (1st)
day of each month during the Demised Term (except as otherwise provided in
Subsection C of this Section).
C. The sum of NINE THOUSAND SIXTY-FOUR and 32/100
($9,064.32) DOLLARS, representing the installment of Fixed Rent for the first
(1st) full calendar month of the Demised Term, is due and payable at the time of
the execution and delivery of this Lease. In the event that the Commencement
Date shall occur on a date other than the first (1st) day of any calendar month,
Tenant shall pay to Owner, on the first (1st)
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day of the month next succeeding the month during which the Commencement Date
shall occur, a sum equal to THREE HUNDRED TWO and 14/100 ($302.14) DOLLARS,
multiplied by the number of calendar days in the period from the Commencement
Date to the last day of the month in which the Commencement Date shall occur,
both inclusive. Such payment, together with the sum paid by Tenant upon the
execution of this Lease, shall constitute payment of the Fixed Rent for the
period from the Commencement Date to and including the last day of the next
succeeding calendar month.
SECTION 1.04. TENANT'S GENERAL COVENANT: Tenant covenants (i)
to pay the Fixed Rent, any increases in the Fixed Rent, and any additional rent
payable pursuant to the provisions of this Lease, and (ii) to observe and
perform, and to permit no violation of, the terms, covenants and conditions of
this Lease on Tenant's part to be observed and performed. Owner covenants to
observe and perform and to permit no violation of, the terms, covenants and
conditions of this Lease on Owner's part to be observed and performed.
ARTICLE 2
USE AND OCCUPANCY
SECTION 2.01. GENERAL COVENANT OF USE: Tenant shall use and
occupy the Demised Premises for the following purpose: Executive and general
offices of Tenant for Tenant's information technology and related media business
and executive and general offices for information technology and related media
business of any permitted subtenants and occupants.
SECTION 2.02. NO ADVERSE USE: Tenant shall not use or occupy,
or permit the use or occupancy of, the Demised Premises or any part thereof, for
any purpose other than the purpose specifically set form in Section 2.01, or in
any manner which, (a) shall adversely affect or interfere with (i) any services
required to be furnished by Owner to Tenant or to any other tenant or occupant
of the Building, or (ii) the proper and economical rendition of any such
service, or (iii) the use or enjoyment of any part of the Building by any other
tenant or occupant, or (b) shall tend to impair the character or dignity of the
Building.
ARTICLE 3
ALTERATIONS
SECTION 3.01. GENERAL ALTERATION COVENANTS: Tenant shall not
make or perform, or permit the making or performance of, any alterations,
installations, improvements, additions or other physical changes in or about the
Demised Premises (referred to collectively, as "Alterations" and individually as
an "Alteration") without Owner's prior consent in each instance. Owner agrees
not unreasonably to withhold its consent to any non-structural Alterations
proposed to be made by Tenant to adapt the Demised Premises for Tenant's
business purposes. Owner agrees that Tenant may, without Owner's prior consent,
make any merely decorative changes and other non-structural Alterations in the
Demised Premises the estimated cost of which constituting a single project shall
not exceed ONE HUNDRED THOUSAND and 00/100 ($100,000.00) DOLLARS and which shall
not affect the electrical,
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plumbing and heating, ventilation and air conditioning systems in the Building
or any portion of the Building outside the Demised Premises; such sum of ONE
HUNDRED THOUSAND and 00/100 ($100,000.00) DOLLARS set forth in this sentence
shall be deemed increased annually by the percentage increase in the Consumer
Price index (as hereinafter defined) for the month in which the first
anniversary of the Commencement Date, and each subsequent anniversary date
thereof, occurs over the Consumer Price Index for the month in which the
Commencement Date shall occur. The Consumer Price Index set forth in the
immediately preceding sentence shall mean the Consumer Price Index for Urban
Wage Earners and Clerical Workers based upon the New York-Northern New Jersey
area for All Group Commodities and Items, published by the United States
Department of Labor, Bureau of Labor Statistics, or a successor substitute
index; if in any year the 1982-84 average of one hundred (100) is no longer used
as the basis of calculation, then, for the purposes of this Article, the
Consumer Price Index for such year shall be recalculated as though such 1982-84
average of one hundred (100) were still the basis of calculation of the Consumer
Price Index for such year; in the event such Consumer Price Index (or a
successor substitute index) is not available, a reliable government or other
non-partisan publication evaluating the information theretofore used in
determining the Consumer Price Index shall be used to reflect the increase in
the national cost of living. Notwithstanding the foregoing provisions of this
Section or Owner's consent to any Alterations, all Alterations and decorations
shall be made and performed in conformity with and subject to the following
provisions:
A. All Alterations and decorations shall be made and
performed at Tenant's sole cost and expense and at such time and in such manner
as Owner may, from time to time, reasonably designate;
B. No Alteration shall adversely affect the structural
integrity of the Building;
C. Alterations and decorations shall be made only by
contractors or mechanics approved by Owner, such approval not unreasonably to be
withheld (notwithstanding the foregoing, all Alterations requiring mechanics in
heating, ventilation, air conditioning, electrical, plumbing, sprinklers and
other mechanical trades with respect to which Owner has adopted or may hereafter
adopt a list or lists of approved contractors shall be made only by contractors
selected by Tenant from such list or lists provided there are at least three [3]
contractors on each such list and the prices charged by such contractors are
competitive for similar work in the Borough of Manhattan in comparable first
class office buildings);
D. No Alteration or decoration shall affect any part of
the Building other than the Demised Premises or adversely affect any service
required to be furnished by Owner to Tenant or to any other tenant or occupant
of the Building (including, without limitation, the Building-wide standard
systems required to provide elevator, heat, ventilation, air-conditioning and
electrical and plumbing services in the Building);
E. No Alteration shall reduce the value or utility of
the Building or any portion thereof;
F. No Alteration shall affect the Certificate of
Occupancy for the Building or the Demised Premises;
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G. No Alteration or decoration shall affect the outside
appearance of the Building or the color or style of any venetian blinds (except
that Tenant may remove any venetian blinds provided that they are promptly
replaced by Tenant with blinds of a similar type, material and color);
H. All business machines and mechanical equipment shall
be placed and maintained by Tenant in settings sufficient, in Owner's reasonable
judgment, to absorb and prevent vibration, noise and annoyance to other tenants
or occupants of the Building;
I. Tenant shall submit to Owner detailed plans and
specifications stamped by Tenant's architect (including layout, architectural,
mechanical and structural drawings) for each proposed Alteration and shall not
commence any such Alteration without first obtaining Owner's approval of such
plans and specifications, such approval not unreasonably to be withheld or
delayed. Notwithstanding the foregoing, Tenant shall not be required to submit
any detailed plans and specifications for any Alterations unless such plans and
specifications are, in the ordinary course, prepared for such Alterations or are
required to be prepared in connection with any filings or other applicable
requirements of any law, order, rule or regulation of any federal, state, county
or municipality, including but not limited to, the Department of Buildings of
the City of New York, and in those cases where Tenant shall not be required to
submit such detailed plans and specifications, Tenant shall submit to Owner, in
lieu thereof, information with respect to such Alterations in reasonably
sufficient detail so as to enable Owner to determine the nature and extent of
the work to be performed, and following the completion of each Alteration,
Tenant shall submit to Owner a computerized "as built" drawing file for the
Demised Premises (or if the Demised Premises comprise more than one (1) floor,
for each floor of the Demised Premises being altered) and in those cases where
Tenant shall not be so required to submit such detailed plans and
specifications, Tenant shall submit to Owner, in lieu thereof, information with
respect to such Alterations in reasonably sufficient detail so as to enable
Owner to determine the nature and extent of the work to be performed; such file
will be in DXF format and contain, on a separate layer, all ceiling-height
partitions and doors within the Demised Premises (or if the Demised Premises
comprise more than one (1) floor, within each floor of the Demised Premises
being altered);
J. Prior to the commencement of each proposed
Alteration, Tenant shall have procured and paid for and exhibited to Owner, so
far as the same may be required from time to time, all permits, approvals and
authorizations of all Governmental Authorities (as defined in Section 6.01.)
having or claiming jurisdiction;
K. Prior the commencement of each proposed Alteration
and decoration, Tenant shall furnish to Owner duplicate original policies of
workmen's compensation insurance covering all persons to be employed in
connection with such Alteration or decoration, including those to be employed by
all contractors and subcontractors, and of comprehensive public liability
insurance (including property damage coverage) in which Owner, its agents, the
holder of any Mortgage (as defined in Section 7.01.) and any lessor under any
Superior Lease (as defined in Section 7.01.) shall be named as parties insured,
which policies shall be issued by companies, and shall be in form and amounts,
satisfactory to Owner and shall be maintained by Tenant until the completion of
such Alteration;
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L. In the event Owner or its agents employ any
independent architect or engineer to examine any plans or specifications
submitted by Tenant to Owner in connection with any proposed major Alteration
and it is reasonable for Owner to so employ such architect or engineer in the
circumstances, Tenant agrees to pay to Owner a sum equal to any reasonable
out-of-pocket fees incurred by Owner in connection therewith.
M. All fireproof wood test reports, electrical and air
conditioning certificates if any are required by law, and all other permits,
approvals and certificates required by all Governmental Authorities shall be
timely obtained by Tenant and submitted to Owner;
N. All Alterations and decorations, once commenced,
shall be made reasonably promptly and in a good and workmanlike manner;
O. Notwithstanding Owner's approval of plans and
specifications for any Alteration, all Alterations and decorations shall be made
and performed in full compliance with all Legal Requirements (as defined in
Section 6.01.) and with all applicable rules, orders, regulations and
requirements of the New York Board of Fire Underwriters and the New York Fire
Insurance Rating Organization or any similar body;
P. All Alterations and decorations shall be made and
performed in accordance with the Building Rules and Building Rules for
Alterations;
Q. All materials and equipment to be installed,
incorporated or located in the Demised Premises as a result of all Alterations
shall be in good condition;
R. No materials or equipment shall be subject to any
lien, encumbrance, chattel mortgage or title retention or security agreement of
any kind;
S. Tenant, before commencement of each Alteration, the
estimated cost of which constituting a single project shall exceed ONE MILLION
and 00/100 ($1,000,000.00) DOLLARS, shall furnish to Owner a performance bond or
other security satisfactory to Owner, in an amount at least equal to the
estimated cost of such Alteration, guaranteeing the performance and payment
thereof. Such sum of ONE MILLION and 00/100 ($1,000,000.00) DOLLARS set forth in
this subsection shall be deemed increased annually by the percentage increase in
the Consumer Price Index for the month in which the first anniversary of the
Commencement Date and each subsequent anniversary date thereof occurs over the
Consumer Price Index in the month in which the Commencement Date shall occur;
T. Following the completion of each Alteration, Tenant,
at Tenant's expense, shall obtain certificates of final approval of such
Alteration required by any Governmental Authority and shall furnish Owner with
copies thereof;
U. Tenant agrees Tenant will not install, affix, add or
paint in or on, nor permit, any work of visual art (as defined in the Federal
Visual Artists' Rights Act of 1990 or any successor law of similar import) or
other Alteration to be installed in or on, or affixed, added to, or painted on,
the interior or exterior of the Demised Premises, or any part thereof,
including, but not limited to, the walls, floors, ceilings, doors, windows,
fixtures and on land included as part of the Demised Premises, which work of
visual art or other Alteration would, under the provisions of the Federal Visual
Artists' Rights Act of 1990, or any
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successor law of similar import, require the consent of the author or artist of
such work or Alteration before the same could be removed, modified, destroyed or
demolished;
V. Under no circumstances shall Tenant be permitted
to locate any telecommunications facilities in the telecommunications closets of
the Building. With respect to Tenant's telecommunications facilities, Tenant
shall use, exclusively, the telecommunications cable distribution system in the
Building designated by Owner and shall contract separately with the company
providing cable distribution service in the Building (referred to as the
"Telecommunications Cable Distribution Company") for the supply and maintenance
of Tenant's cables, and Tenant shall pay the Telecommunications Cable
Distribution Company for the services provided by it at the rates established by
it from time to time. Such rates shall be reasonably competitive with rates
charged by available alternative telecommunications cable distribution systems
in the area in which the Building is located. Tenant shall comply with all
reasonable rules and regulations adopted by Owner and the Telecommunications
Cable Distribution Company. Owner shall not be liable to Tenant or anyone
claiming through or under Tenant for any damages, including, but not limited to,
incidental, remote or consequential damages, including, without limitation, lost
revenue, lost profits and additional operating or personnel expenses Arising
from any acts, omissions or negligence of the Provider and the
Telecommunications Cable Distribution Company.
SECTION 3.02. NO CONSENT TO CONTRACTOR/NO MECHANICS LIEN:
Nothing in this Lease shall be deemed or construed in any way as constituting
the consent or request of Owner, express or implied, by inference or otherwise,
to any contractor, subcontractor, laborer or materialmen, for the performance of
any labor or the furnishing of any material for any specific Alteration to, or
repair of, the Demised Premises, the Building, or any part of either. Any
mechanic's or other lien filed against the Demised Premises or the Building or
the Real Property for work claimed to have been done for, or materials claimed
to have been furnished to, Tenant or any person claiming through or under Tenant
or based upon any act or omission or alleged act or omission of Tenant or any
such person shall be discharged by Tenant, at Tenant's sole cost and expense,
within thirty (30) days after Tenant's receipt of notice of the filing of such
lien by bonding or otherwise.
SECTION 3.03. LABOR HARMONY: Tenant shall not, at any time
prior to or during the Demised Term, directly or indirectly employ, or permit
the employment of, any contractor, mechanic or laborer in the Demised Premises.
whether in connection with any Alteration or otherwise, if such employment will
interfere or cause any conflict with other contractors, mechanics, or laborers
engaged in the construction, maintenance or operation of the Building by Owner,
Tenant or others. In the event of any such interference or conflict, Tenant,
upon demand of Owner, shall cause all contractors, mechanics or laborers causing
such interference or conflict to leave the Building immediately.
SECTION 3.04. COMPLIANCE WITH FIRE SAFETY: Without in any way
limiting the generality of the provisions of Section 3.01, all Alterations shall
be made and performed in full compliance with all standards and practices
adopted by Owner for fire safety in the Building. No Alteration shall affect all
or any part of any Class E Fire Alarm and Communication system installed in the
Demised Premises, except that in connection with any such Alteration Tenant may
relocate certain components of such system, provided (i) such relocation shall
be performed in a manner first approved by Owner such approval not to be
unreasonably withheld or delayed, (ii) the new location of any such component
shall be first
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approved by Owner such approval not to be unreasonably withheld or delayed,
(iii) prior to any such relocation Tenant shall submit to Owner detailed plans
and specifications therefor which shall be first approved by Owner such approval
not to be unreasonably withheld or delayed and (iv) Owner shall have the
election of relocating such components either by itself or by its contractors,
in which event all reasonable expenses incurred by Owner shall be reimbursed by
Tenant upon demand of Owner, as additional rent. Owner represents that the
Demised Premises will be in compliance with Local Law #5 of 1973, Local Law #16
of 1984 and Local Law #58 and the Americans With Disabilities Act on the
Commencement Date, and as Owner completes Alterations in the public portions of
the Building such public portions of the Building will by completed in
compliance with Local Law #5 of 1973, Local Law #16 of 1984 and Local Law #58
and the Americans With Disabilities Act.
SECTION 3.05. SPRINKLERS: The Demised Premises shall contain a
sprinkler system and notwithstanding anything to the contrary set forth in
Sections 5.01 and 6.01, Owner, at Owner's expense, shall perform routine
maintenance of, and shall repair and replace if necessary, said sprinkler system
and any replacements thereof, unless such repair or replacement is due to
Tenant's acts, omissions or negligence, in which event Owner shall repair or
replace same, at Tenant's sole cost and expense. Owner shall also perform
controlled inspections of said sprinkler system as and when required by law and
Tenant shall give Owner reasonable access to perform such repairs, maintenance
and inspections upon reasonable prior notice. Any sprinkler system and any
replacements thereof whether made at Tenant's expense or Owner's expense, shall
be deemed the property of Owner.
SECTION 3.06. ASBESTOS OR OTHER HAZARDOUS MATERIAL: If any
Legal Requirement or any Governmental Authority requires that any asbestos or
other hazardous material contained in or about the Demised Premises and
installed therein by Tenant or any person claiming through or under Tenant be
removed or dealt with in any particular manner in connection with any
Alterations of the Demised Premises or otherwise, then it shall be Tenant's
obligation, at Tenant's expense, to remove or so deal with such asbestos or
other hazardous material in accordance with all such laws, orders, rules and
regulations. In the event Tenant is required to remove or so deal with such
asbestos or other hazardous material in accordance with the provisions of the
foregoing sentence then, notwithstanding anything to the contrary contained
herein, Owner, at Owner's election, shall have the option to itself remove or so
deal with such asbestos or other hazardous material and, in such event, Tenant
shall pay to Owner all of Owner's reasonable costs in connection therewith
within ten (10) days next following the rendition of a statement thereof by
Owner to Tenant.
SECTION 3.07. DISPUTE RESOLUTION: Any dispute with respect to
the reasonability of any failure or refusal of Owner to grant its consent or
approval to any request for such consent or approval pursuant to the provisions
of Section 3.01 with respect to which request Owner has agreed, in such Section
not unreasonably to withhold such consent or approval, shall be determined by
arbitration in accordance with the provisions of Article 36.
SECTION 3.08. FIRE ALARM AND COMMUNICATION SYSTEM CONNECTION
FEES: In the event that Tenant, pursuant to the provisions of this Lease,
including, but not limited to, the provisions of this Article 3 and Article 6,
connects any of the following equipment to any Class E Fire Alarm and
Communication system installed in the Demised Premises, Tenant shall pay to
Owner as a one (1) time connection fee the following sums set forth opposite the
equipment listed below (which sums shall be subject to increases due to
increases in the cost
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to Owner of operating and maintaining such Class E Fire Alarm and Communication
system over such costs on the date of this Lease):
A. Speakers in excess of 4 per floor of the
Demised Premises (or if the Demised
Premises contain less than one (1)
floor, in excess of four in the Demised
Premises) $500.00 per device
B. Strobe Lights (single unit) $100.00 per device
C. Combination Speaker/Strobe light $250.00 per device
D. Duct Detectors (supplementary air conditioning
systems) $500.00 per point
E. Smoke Detectors (multi-purpose) $500.00 per point
F. Preaction Sprinkler System:
waterflow $500.00 per point
tamper $500.00 per point
X. Xxxxxx Phone (additional) $1,000.00 per unit
H. Fail Safe Door Release $250.00 per connection
SECTION 3.09. A. In the event that, at any time during the
Demised Term, in connection with any Alterations proposed to be performed by
Tenant in the Demised Premises Tenant is unable to obtain a New York City
Department of Environmental Protection Form ACP5 dated 10/88 (or any successor
form), signed by a certified asbestos investigator, or any other form or
approval required by Federal, State, County or Municipal authorities, indicating
that said Alterations do not constitute an asbestos project, Owner agrees, upon
notice from Tenant to such effect, to perform such work as shall be required to
enable Tenant to obtain any such form or approval.
B. If any laws, orders, rules or regulations of any
Federal, State, County or Municipal authority require that any asbestos or other
hazardous material contained in or about the Demised Premises be removed or
dealt with in any particular manner, then it shall be Owner's obligation, at
Owner's expense, to remove or so deal with such asbestos or other hazardous
material in accordance with such laws, orders, rules and regulations.
C. Notwithstanding the provisions of subsections A
and B of this Section, in the event any work performed by Owner pursuant to the
provisions of either or both of such subsections is in any way disturbed or
damaged by Tenant or any person claiming through or under Tenant, or asbestos or
other hazardous material is installed in the Demised Premises by or on behalf of
Tenant, or any person claiming through or under Tenant, Owner shall have no
responsibility in connection with the disturbed or damaged work or the asbestos
or other hazardous material so installed by Tenant or any person claiming
through or under Tenant and no obligation to perform any work with respect to
the disturbed or damaged work or the asbestos or other hazardous material so
installed by Tenant or any person claiming through or under Tenant, but it shall
be Tenant's obligation, at Tenant's expense, to (i)
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perform such work with respect to such disturbed or damaged work or the asbestos
or other hazardous material so installed by Tenant or any person claiming
through or under Tenant as shall be required to enable Tenant to obtain any form
or approval referred to in subsection A, and (ii) remove or so deal with such
asbestos or other hazardous material in accordance with all such laws, orders,
rules and regulations referred to in subsection B.
ARTICLE 4
OWNERSHIP OF IMPROVEMENTS
SECTION 4.01. GENERAL RIGHTS OF OWNER AND TENANT: All
appurtenances, fixtures, improvements, additions and other property attached to
or installed in the Demised Premises, whether by Owner or Tenant or others, and
whether at Owner's expense, or Tenant's expense, or the joint expense of Owner
and Tenant, shall be and remain the property of Owner, except that any such
fixtures, improvements, additions and other property installed at the sole
expense of Tenant with respect to which Tenant has not been granted any credit
or allowance by Owner, whether pursuant to Addendum A or otherwise, and which
are removable without material damage to the Demised Premises shall be and
remain the property of Tenant and are referred to as "Tenant's Personal
Property". Any replacements of any property of Owner, whether made at Tenant's
expense or otherwise, shall be and remain the property of Owner. Notwithstanding
anything to the contrary set forth in the foregoing provisions of this Section,
Tenant may remove from the Demised Premises at any time during the Demised Term
or on the Expiration Date or sooner termination of the Demised Term the
following: any non-structural Alterations performed by Tenant which do not
affect any Building systems, provided that Tenant shall make all repairs to the
Demised Premises and the Building occasioned by such removal.
ARTICLE 5
REPAIRS
SECTION 5.01. TENANT'S REPAIR OBLIGATIONS: Tenant shall take
good care of the Demised Premises (including, but not limited to, any Class E
Fire Alarm and Communication system and any sprinkler system installed therein
and any installations made or equipment installed therein as a result of any
requirement of New York City Local Law #16 of 1984 or any successor law of like
import) and, at Tenant's sole Cost and expense, shall make all repairs and
replacements, structural and otherwise, ordinary and extraordinary, foreseen and
unforeseen as and when needed to preserve the Demised Premises (including, but
not limited to, any Class E Fire Alarm and Communication system and any
installations made or equipment installed therein as a result of any requirement
of New York City Local Law #16 of 1984 or any successor law of like import) in
good and safe working order and in first class repair and condition, except that
Tenant shall not be required to make any repairs or replacements to the Demised
Premises unless necessitated or occasioned by the acts, omissions or negligence
of Tenant or any person claiming through or under Tenant or any of their
servants, employees, contractors, agents, visitors or licensees, or by the
manner of use or occupancy of the Demised Premises by Tenant or any such person
(in contradistinction to the mere use or occupancy of the Demised Premises for
the purposes set forth in Section 2.01).
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For the purposes of this Article, any repairs or work involving asbestos or
other hazardous materials or involving compliance with Local Laws #5 of 1973,
#16 of 1984, #58 of 1987 and the Americans With Disabilities Act and any
successor laws of like import shall be deemed to be non-structural repairs or
replacements. Without affecting Tenant's obligations set forth in the preceding
sentence, Tenant, at Tenant's sole Cost and expanse, shall also (i) make all
repairs and replacements, and perform all maintenance as and when necessary, to
the lamps, tubes, ballasts, and starters in the lighting fixtures installed in
the Demised Premises, (ii) make all repairs and replacements, as and when
necessary, to Tenant's Personal Property and to any Alterations made or
performed by or on behalf of Tenant or any person claiming through or under
Tenant, and (iii) if the Demised Premises shall include any space on any ground,
street, mezzanine or basement floor in the Building, make all replacements, as
and when necessary, to all windows and plate and other glass in, on or about
such space, and obtain and maintain, throughout the Demised Term, plate glass
insurance policies issued by companies, and in form and amounts, satisfactory to
Owner, in which Owner, its agents and any lessor under any ground or underlying
lease shall be named as parties insured, and (iv) perform all maintenance and
make all repairs and replacements, as and when necessary, to any air
conditioning equipment, private elevators, escalators, conveyors or mechanical
systems (other than the Building's standard equipment and systems) which may be
installed in the Demised Premises by Owner, Tenant or others. However, the
provisions of the foregoing sentence shall not be deemed to give to Tenant any
right to install air conditioning equipment, elevators, escalators, conveyors or
mechanical systems. All repairs and replacements made by or on behalf of Tenant
or any person claiming through or under Tenant shall be made and performed in
conformity with, and subject to the provisions of Article 3 and shall be at
least equal in quality and class to the original work or installation. The
necessity for, and adequacy of, repairs and replacements pursuant to this
Article 5 shall be measured by the standard which is appropriate for first class
office buildings of similar construction and class in the Borough of Manhattan,
City of New York.
SECTION 5.02. Supplementing the provisions of Section 5.01,
Owner, at Owner's sole cost and expense, shall timely make (i) all structural
repairs to the Demised Premises as and when required, (ii) all repairs necessary
to furnish the plumbing, electrical, air conditioning, ventilating, heating and
elevator services required to be furnished by Owner to Tenant under the
provisions of Article 29, and (iii) all necessary repairs to the public portions
of the Building which affect Tenant's use and enjoyment of the Demised Premises,
except that Owner shall not be required to make any of the repairs referred to
in subdivision (i), (ii) or (iii) of this sentence if Tenant is obligated to
make such repairs pursuant to the provisions of Section 5.01. Notwithstanding
the foregoing provisions of this Section, Owner shall have no obligation to make
any repairs unless and until specific actual notice or the necessity therefor
shall have been given to Owner.
ARTICLE 6
COMPLIANCE WITH LAWS
SECTION 6.01. GENERAL COVENANTS: Tenant, at Tenant's sole cost
and expense, shall comply with all Legal Requirements (hereinafter defined)
which shall impose any duty upon Owner or Tenant with respect to the Demised
Premises or the use or occupation thereof, including, but not limited to, any
requirement that asbestos or other
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hazardous material installed in the Demised Premises by Tenant or any person
claiming through or under Tenant be removed or dealt with in any particular
manner, except that Tenant shall not be required to make any Alterations in
order so to comply unless such Alterations shall be necessitated or occasioned,
in whole or in part, by the acts, omissions, or negligence of Tenant or any
person claiming through or under Tenant or any of their servants, employees,
contractors, agents, visitors or licensees, or by the manner of use or occupancy
of the Demised Premises by Tenant or by any such person (in contradistinction to
the mere use or occupancy of the Demised Premises for the purposes set forth in
Section 2.01). For all purposes of this Lease the term "Legal Requirements"
shall mean all present and future laws, codes, ordinances, statutes,
requirements, orders and regulations, ordinary and extraordinary, foreseen and
unforeseen (including, but not limited to, the New York State Energy
Conservation Construction Code, New York City Local Laws #5 of 1973, #16 of 1984
and #58 of 1987 and the Americans with Disabilities Act, and any successor laws
of like import) of any Governmental Authority (hereinafter defined) and all
directions, requirements, orders and notices of violations thereof. For all
purposes of this Lease, the term "Governmental Authority" shall mean the United
States of America, the State of New York, the County of New York, the Borough of
Manhattan, the City of New York, any political subdivision thereof and any
agency, department, commission, board, bureau or instrumentality of any of the
foregoing, now existing or hereafter created, having jurisdiction over Owner,
Tenant, this Lease or the Real Property or any portion thereof. Any work or
installations made or performed by or on behalf of Tenant or any person claiming
through or under Tenant pursuant to the provisions of this Article shall be made
in conformity with, and subject to the provisions of Article 3. Compliance with
any requirement regarding asbestos or other hazardous material shall be made in
conformity with the provisions of Section 3.06.
SECTION 6.02. TENANT'S COMPLIANCE WITH OWNER'S FIRE INSURANCE:
Tenant shall not do anything, or permit anything to be done, in or about the
Demised Premises which shall (i) invalidate or be in conflict with the
provisions of any fire and/or other insurance policies covering the Building or
any property located therein, or (ii) result in a refusal by fire insurance
companies of good standing to insure the Building or any such property in
amounts reasonably satisfactory to Owner, or (iii) subject Owner to any
liability or responsibility for injury to any person or property by reason of
any business operation being conducted in the Demised Premises, or (iv) cause
any increase in the fire insurance rates applicable to the Building or property
located therein at the beginning of the Demised Term or at any time thereafter.
Tenant, at Tenant's expense, shall comply with all present and future rules,
orders, regulations and/or requirements of the New York Board of Fire
Underwriters and the New York Fire Insurance Rating Organization or any similar
body and the issuer of any insurance obtained by Owner covering the Building
and/or the Real Property, whether ordinary or extraordinary, foreseen or
unforeseen, including, but not limited to, any requirement that asbestos or
other hazardous material installed in the Demised Premises by Tenant or any
person claiming through or under Tenant be removed or dealt with in any
particular manner and any requirement of New York City Local Law #5 of 1973, #16
of 1984, #58 of 1987 and the Americans With Disabilities Act or any successor
laws of like import.
SECTION 6.03. FIRE INSURANCE RATES: In any action or
proceeding wherein Owned and Tenant are parties, a schedule or "make up" of
rates applicable to the Building or property located therein issued by the New
York Fire Insurance Rating Organization, or other similar body fixing such fire
insurance rates, shall be conclusive evidence of the facts therein
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stated and of the several items and charges in the fire insurance rates then
applicable to the Building or property located therein.
SECTION 6.04. Notwithstanding anything contained in Sections
6.01, 6.02 or 6.03 to the contrary, Tenant shall not be deemed to have caused
any increase in the fire insurance rates applicable to the Building or property
located therein at the beginning of the Demised Term or at any time thereafter,
nor shall Tenant be required to make any Alterations in order to comply with any
rules, orders, regulations or requirements of the New York Board Organization or
any similar body, unless such rates are increased, or such Alterations shall be
necessitated or occasioned, in whole or in part, by the acts, omissions or
negligence of Tenant or any person claiming through or under Tenant, or any of
their servants, employees, contractors, agents, visitors or licensees, or by the
manner of use or occupancy of the Demised Premises by Tenant or any such persons
(in contradistinction to the mere use or occupancy of the Demised Premises for
the purposes set forth in Section 2.01).
SECTION 6.05. Owner agrees solely to the extent that
non-compliance by Owner prevents Tenant from using the Demised Premises for its
normal business operations, Owner, at Owner's sole cost and expense, shall
comply with all Legal Requirements and with all rules, orders, regulations and
requirements of the New York Board of Fire Underwriters and the New York Fire
Insurance Rating Organization or any similar body and the issuer of any
insurance obtained by Owner covering the Building and/or the Real Property,
which shall impose any duty upon Owner or Tenant with respect to the Demised
Premises or the use or occupation thereof, or any public portion of the Building
which affects Tenant's use of the Demised Premises, all of which are of
Building-wide application and with which Tenant is not required to comply
pursuant to the provisions of Sections 6.01 or Section 6.02; provided, however,
Owner shall not be required to so comply unless and until Owner shall have
received notice of the necessity therefor from Tenant
SECTION 6.06. Owner shall have the right to contest, by
appropriate legal proceedings diligently conducted in good faith, at its own
cost and expense, the validity or application of any Legal Requirement with
which Owner is required to comply under the provisions of Section 6.05 provided
that such contest shall not subject Tenant to any criminal penalty or place
Tenant in imminent danger of being required to vacate the Demised Premises.
ARTICLE 7
SUBORDINATION ATTORNMENT, ETC.
SECTION 7.01. LEASE SUBORDINATION: This Lease and all rights
of Tenant under this Lease are, and shall remain, unconditionally subject and
subordinate in all respects to all ground and underlying leases now or hereafter
in effect affecting the Real Property or any portion thereof, and to all
mortgages which may now or hereafter affect such leases or the Real Property,
and to all advances made or hereafter to be made under such mortgages, and to
all renewals, modifications, consolidations, correlations, replacements and
extensions of, and substitutions for, such leases and mortgages (such leases as
above described are referred to herein collectively as the "Superior Lease" and
such mortgages as above described are referred to herein collectively as the
"Mortgage"). The foregoing provisions of this Section shall be self-operative
and no further instrument of subordination shall be required. In confirmation of
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such subordination, Tenant shall execute and deliver promptly any certificate or
other instrument which Owner, or any lessor under any Superior Lease, or any
holder of any Mortgage may request, and Tenant hereby, irrevocably constitutes
and appoints Owner and all such lessors and holders, acting jointly or
severally, as Tenant's agent and attorney-in-fact to execute any such
certificate or other instrument for or on behalf of Tenant. If, in connection
with obtaining financing with respect to the Building, the Real Property, or the
interest of the lessee under any Superior Lease, any recognized lending
institution shall request reasonable modifications of this Lease as a condition
of such financing, Tenant covenants not unreasonably to withhold or delay its
agreement to such modifications, provided that such modifications do not
materially increase the obligations, or materially and adversely affect the
rights, of Tenant under this Lease. No act or failure to act on the part of
Owner which would entitle Tenant under the terms of this Lease, or by law, to be
relieved of Tenant's obligations hereunder or to terminate this Lease shall
result in a release or termination of such obligations or a termination of this
Lease unless (i) Tenant shall have first given written notice of Owner's act or
failure to act to the holder or holders of any Mortgage and/or the lessor under
any Superior Lease of whom Tenant has been given written notice, specifying the
act or failure to act on the part of Owner which could or would give basis to
Tenant's rights; and (ii) the holder or holders of such Mortgage and/or the
lessors under any Superior Lease, after receipt of such notice, have failed or
refused to correct or cure the condition complained of within a reasonable time
thereafter, but nothing contained in this sentence shall be deemed to impose any
obligation on any such holder or lessor to correct or cure any such condition.
"Reasonable time" as used above means and includes a reasonable time to obtain
possession of the Building if any such holder or lessor elects to do so
(provided such holder or lessor institutes proceedings to obtain possession
within a reasonable time after notice from Tenant pursuant to the foregoing
provisions and conducts such proceedings with reasonable diligence) and a
reasonable time after so obtaining possession to correct or cure the condition
if such condition is determined to exist (provided such holder or lessor
commences said cure within ten (10) days after obtaining possession and
prosecutes the work required to cure with reasonable diligence).
SECTION 7.02. TENANT ATTORNMENT: If, at any time prior to the
expiration of the Demised Term, any Superior Lease under which Owner then shall
be the lessee shall terminate or be terminated for any reason, or the holder of
any Mortgage comes into possession of the Real Property or the Building or the
estate created by any Superior Lease by a receiver or otherwise, Tenant agrees,
at the election and upon demand of any owner of the Real Property, or of the
holder of any Mortgage so in possession, or of any lessee under any Superior
Lease covering the premises which include the Demised Premises, to attorn, from
time to time, to any such owner, holder, or lessee, upon the then executory
terms and conditions of this Lease, for the remainder of the term originally
demised in this Lease, provided that such owner, holder or lessee, as the case
may be, shall then be entitled to possession of the Demised Premises. The
provisions of this Section shall inure to the benefit of any such owner, holder,
or lessee, shall apply notwithstanding that, as a matter of law, this Lease may
terminate upon the termination of any Superior Lease, shall be self-operative
upon any such demand, and no further instrument shall be required to give effect
to said provisions. Tenant, however, upon demand of any such owner, holder, or
lessee, agrees to execute, from time to time, instruments in confirmation of the
foregoing provisions of this Section, satisfactory to any such owner, holder, or
lessee, acknowledging such attornment and setting forth the terms and conditions
of its tenancy. Nothing contained in this Section shall be construed to impair
any right otherwise exercisable by any such owner, holder, or lessee.
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Notwithstanding anything to the contrary set forth in this Article no such
owner, holder or lessee shall be bound by (i) any payment of any instalment of
Fixed Rent or increases therein or any additional rent which may have been made
more than thirty (30) days before the due date of such instalment (except
prepayments in the nature of security for the performance of Tenant's obligation
under this Lease), or (ii) any amendment or modification to this Lease which is
made without its consent.
SECTION 7.03. TENANT ESTOPPEL CERTIFICATE: From time to time,
within ten (10) days next following Owner's request, Tenant shall deliver to
Owner a written statement executed and acknowledged by Tenant, in form
satisfactory to Owner, (i) stating that this Lease is then in full force and
effect and has not been modified (or if modified, setting forth the specific
nature of all modifications), and (ii) setting forth the date to which the Fixed
Rent has been paid, and (iii) stating whether or not, to the best knowledge of
Tenant, Owner is in default under this Lease, and, if Owner is in default,
setting forth the specific nature of all such defaults and (iv) stating that
Tenant has accepted and occupied the Demised Premises and all improvements
required to be made by Owner pursuant to the provisions of this Lease, have been
made, if such be the case. Tenant acknowledges that any statement delivered
pursuant to this Section may be relied upon by any purchaser or owner of the
Building, or of the Real Property, or any part thereof, or of Owner's interest
in the Building or the Real Property or any Superior Lease, or by the holder of
any Mortgage, or by any assignee of the holder of any Mortgage, or by any lessor
under any Superior Lease.
SECTION 7.04. OWNER ASSIGNMENT OF LEASE AND RENTS: If Owner
assigns its interest in this Lease, or the rents payable hereunder, to the
holder of any Mortgage or the lessor under any Superior Lease, whether the
assignment shall be conditional in nature or otherwise, Tenant agrees that (a)
the execution thereof by Owner and the acceptance by such holder or lessor shall
not be deemed an assumption by such holder or lessor of any of the obligations
of the Owner under this Lease unless such holder or lessor shall, by written
notice sent to Tenant, specifically otherwise elect; and (b) except as
aforesaid, such holder or lessor shall be treated as having assumed Owner's
obligations hereunder only upon the foreclosure of such holder's Mortgage or the
termination of such lessor's Superior Lease and the taking of possession of the
Demised Premises by such holder or lessor, as the case may be.
SECTION 7.05. OWNER'S ESTOPPEL CERTIFICATE: From time to time,
within ten (10) days next following Tenant's request, Owner shall deliver to
Tenant a written statement executed and acknowledged by Owner, in form
satisfactory to Tenant, (i) stating that this Lease is then in full force and
effect and has not been modified (or if modified, setting forth the specific
nature of all modifications), and (ii) setting forth the date to which the Fixed
Rent has been paid, and (iii) stating whether or not, to the best knowledge of
Owner, Tenant is in default under this Lease, and, if Tenant is in default,
setting forth the specific nature of all such defaults and (iv) stating that
Tenant has accepted and occupied the Demised Premises and all improvements
required to be made by Owner pursuant to the provisions of this Lease, have been
made, if such be the case.
SECTION 7.06. Owner agrees within a reasonable time after the
execution and delivery of this Lease to request the then holder or holders of
the existing Mortgage to enter into an agreement substantially to the effect
that in the event of any foreclosure of the existing Mortgage, such holder or
holders will not make Tenant a party-defendant to such foreclosure (unless
required by law in order to obtain jurisdiction, but in such event, no judgment
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foreclosing this Lease will be sought) nor disturb its possession under this
Lease so long as there shall be no default by Tenant under this Lease beyond
applicable grace periods (any such agreement, or any agreement of similar
import, is referred to as a "Non-Disturbance Agreement" and any provisions in
any Mortgage substantially to the same effect as those contained in a
Non-Disturbance Agreement are referred to as "Non-Disturbance Provisions"). At
or about the time that Owner executes any future Mortgage, Owner agrees to
request the then holder or holders of such future Mortgage to enter into a
Non-Disturbance Agreement or include Non-Disturbance Provisions in such future
Mortgage. At or about the time that Owner executes any future Superior Lease of
the Real Property or the Building, Owner shall request the lessor thereof to
enter into an agreement substantially to the effect that in the event of the
termination of such Superior Lease by reason of the default or insolvency of the
lessee thereunder, such lessor will permit Tenant to attorn to such lessor and
will not disturb its possession under this Lease so long as there shall be no
default by Tenant under this Lease beyond applicable grace periods (any such
agreement, or any agreement of similar import, is referred to as a "Tenant
Recognition Agreement" and any provisions in any such Superior Lease
substantially to the same effect as those contained in a Tenant Recognition
Agreement are referred to as "Tenant Recognition Provisions"). If Owner is
unable in good faith to obtain any such Non-Disturbance Agreement,
Non-Disturbance Provisions, Tenant Recognition Agreement or Tenant Recognition
Provisions, neither the validity of this Lease nor the obligations of Tenant
under this Lease shall be affected thereby and Owner shall not be liable to
Tenant for its failure to obtain any such Non-Disturbance Agreement,
Non-Disturbance Provisions, Tenant Recognition Agreement or Tenant Recognition
Provisions, it being intended that Owner's sole obligation with respect to any
Non-Disturbance Agreement, Non-Disturbance Provisions, Tenant Recognition
Agreement or Tenant Recognition Provisions, shall be to request, in good faith,
(a) within a reasonable time after the execution and delivery of this Lease
(with respect to the existing Mortgage) and (b) at or about the date of
execution of any future Mortgage or Superior Lease (with respect to any future
Mortgage or Superior Lease) the then holders of any Mortgage or the then lessor
under the Superior Lease, as the case may be, to enter into such Non-Disturbance
Agreement (with respect to the existing Mortgage) or enter into such
Non-Disturbance Agreement or include Non-Disturbance Provisions in any future
Mortgage or enter into such Tenant Recognition Agreement or include Tenant
Recognition Provisions in any future Superior Lease, as the case may be. If
required by the holder of any Mortgage or by the lessor under any Superior
Lease, Tenant shall promptly join in any commercially reasonable Non-Disturbance
Agreement or Tenant Recognition Agreement to indicate its concurrence with the
provisions thereof. Owner will pay any commercially reasonable fee charged by
any holder or lessor for preparing such Agreement or Provisions.
ARTICLE 8
PROPERTY LOSS, ETC.
SECTION 8.01. Any Building employee to whom any property shall
be entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant's
agent with respect to such property and neither Owner nor Owner's agents shall
be liable for any loss of or damage to any such property by theft or otherwise.
Except as otherwise expressly set forth in this Lease, neither (i) the
performance by Owner, Tenant or others of any decorations, repairs, alterations,
additions or improvements in or to the Building or the Demised Premises, nor
(ii) the failure of Owner or others to make any such decorations, repairs,
alterations,
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additions or improvements, nor (iii) any damage to the Demised Premises or to
the property of Tenant, nor any injury to any persons, caused by other tenants
or persons in the Building, or by operations in the construction of any private,
public or quasi-public work, or by any other cause, nor (iv) any latent defect
in the Building or in the Demised Premises, nor (v) any temporary (i.e., six [6]
months or less) or permanent closing, darkening or bricking up of any windows of
the Demised Premises for any reason whatsoever beyond Owner's reasonable
control, nor any permanent closing, darkening or bricking up of any such windows
if required by law or in connection with any construction upon adjacent
property, nor (vi) any inconvenience or annoyance to Tenant or injury to or
interruption of Tenant's business by reason of any of the events or occurrences
referred to in the foregoing subdivisions (i) through (v), shall constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of rent, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Owner, or its agents, or any
lessor under any Superior Lease, other than such liability as may be imposed
upon Owner by law for Owner's negligence or the negligence of Owner's agents,
servants or employees in the operation or maintenance of the Building or for the
breach by Owner of any express covenant of this Lease on Owner's part to be
performed. Tenant's taking possession of the Demised Premises shall be
conclusive evidence, as against Tenant, that, at the time such possession was so
taken, the Demised Premises and the Building were in good and satisfactory
condition and Owner's Initial Construction was substantially completed.
ARTICLE 9
DESTRUCTION-FIRE OR OTHER CASUALTY
SECTION 9.01. OWNER'S REPAIR OBLIGATIONS: If the Demised
Premises shall be damaged by fire or other casualty and if Tenant shall give
prompt notice to Owner of such damage, Owner, at Owner's expense, shall repair
such damage. However, Owner shall have no obligation to repair any damage to, or
to replace, Tenant's Personal Property or any other property or effects of
Tenant. Except as otherwise provided in Section 9.03, if the entire Demised
Premises shall be rendered untenantable by reason of any such damage, the Fixed
Rent shall xxxxx for the period from the date of such damage to the earlier of
(x) the date ten (10) days next following the date when such damage shall have
been repaired or (y) the date upon which Tenant shall have completed its repairs
thereto and commenced the conduct of its business therein, and if only a part of
the Demised Premises shall be so rendered untenantable, the Fixed Rent shall
xxxxx for such period in the proportion which the area of the part of the
Demised Premises so rendered untenantable bears to the total area of the Demised
Premises. However, if, prior to the date when all of such damage shall have been
repaired, any part of the Demised Premises so damaged shall be rendered
tenantable and shall be used or occupied by Tenant or any person or persons
claiming through or under Tenant, then the amount by which the Fixed Rent shall
xxxxx shall be equitably apportioned for the period from the date of any such
use or occupancy to the date when all such damage shah have been repaired.
Tenant hereby expressly waives the provisions of Section 227 of the New York
Real Property Law, and of any successor law of like import then in force, and
Tenant agrees that the provisions of this Article shall govern and control in
lieu thereof. Notwithstanding the foregoing provisions of this Section, if,
prior to or during the Demised Term, (i) the Demised Premises shall be totally
damaged or rendered wholly untenantable by fire or other casualty, and if Owner
shall decide not to restore the Demised Premises, or (ii) the Building shall be
so damaged by (ire or
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other casualty that, in Owner's opinion, substantial alteration, demolition, or
reconstruction of the Building shall be required (whether or not the Demised
Premises shall have been damaged or rendered untenantable), then, in any of such
events, Owner, at Owner's option, may give to Tenant, within ninety (90) days
after such fire or other casualty, a five (5) days' notice of termination of
this Lease and, in the event such notice is given, this Lease and the Demised
Term shall come to an end and expire (whether or not said term shall have
commenced) upon the expiration of said five (5) days with the same effect as if
the date of expiration of said five (5) days were the Expiration Date, the Fixed
Rent shall be apportioned as of such date or as of any earlier date upon which
the Fixed Rent shall have abated as hereinabove provided in this Section and any
prepaid portion of Fixed Rent for any period after such date shall be refunded
by Owner to Tenant.
SECTION 9.02. OWNER'S SUBROGATION WAIVER PROVISIONS: Owner
shall attempt to obtain and maintain, throughout the Demised Term, in Owner's
fire insurance policies covering the Building, provisions to the effect that
such policies shall not be invalidated should the insured waive, in writing,
prior to a loss, any or all right of recovery against any party for loss
occurring to the Building. In the event that at any time Owner's fire insurance
carriers shall exact an additional premium for the inclusion of such or similar
provisions, Owner shall give Tenant notice thereof. In such event, if Tenant
agrees, in writing, to reimburse Owner for such additional premium for the
remainder of the Demised Term, Owner shall require the inclusion of such or
similar provisions by Owner's fire insurance carriers. As long as such or
similar provisions are included in Owner's fire insurance policies then in
force, Owner hereby waives (i) any obligation on the part of Tenant to make
repairs to the Demised Premises necessitated or occasioned by fire or other
casualty that is an insured risk under such policies, and (ii) any right of
recovery against Tenant, any other permitted occupant of the Demised Premises,
and any of their servants, employees, agents or contractors, for any loss
occasioned by fire or other casualty which is an insured risk under such
policies. In the event that at any time Owner's fire insurance carriers shall
not include such or similar provisions in Owner's fire insurance policies, the
waivers set forth in the foregoing sentence shall, upon notice given by Owner to
Tenant, be deemed of no further force or effect.
SECTION 9.03. TENANT NEGLIGENCE: Except to the extent
expressly provided in Section 9.02, nothing contained in this Lease shall
relieve Tenant of any liability to Owner or to its insurance carriers which
Tenant may have under law or the provisions of this lease in connection with any
damage to the Demised Premises or the Building caused by fire or other casualty.
Notwithstanding the provisions of Section 9.01, if any such damage, occurring
after any date when the waivers set forth in Section 9.02 are no longer in force
and effect, is due to the fault or neglect of Tenant, any person claiming
through or under Tenant, or any of their servants, employees, agents,
contractors, visitors or licensees, then there shall be no abatement of Fixed
Rent by reason of such damage.
SECTION 9.04. TENANT SUBROGATION WAIVER PROVISIONS: Tenant
acknowledges that it has been advised that Owner's insurance policies do not
cover Tenant's Personal Property or any other property of Tenant in the Demised
Premises; accordingly, it shall be Tenant's obligation to obtain and maintain
insurance covering its property in the Demised Premises and loss of profits
including, but not limited to, water damage coverage and business interruption
insurance. Tenant shall attempt to obtain and maintain, throughout the Demised
Term, in Tenant's fire and other insurance policies covering Tenant's Personal
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Property and other property of Tenant in the Demised Premises, and Tenant's use
and occupancy of the Demised Premises, and/or Tenants profits (and shall cause
any other permitted occupants of the Demised Premises to attempt to obtain and
maintain, in similar policies), provisions to the effect that such policies
shall not be invalidated should the insured waive, in writing, prior to a loss,
any or all right of recovery against any party for loss occasioned by fire or
other casualty which is an insured risk under such policies. In the event that
at any time the fire insurance carriers issuing such policies shall exact an
additional premium for the inclusion of such or similar provisions, Tenant shall
give Owner notice thereof. In such event, if Owner agrees, in writing, to
reimburse Tenant or any person claiming through or under Tenant, as the case may
be, for such additional premium for the remainder of the Demised Term. Tenant
shall require the inclusion of such or similar provisions by such insurance
carriers. As long as such or similar provisions are included in such insurance
policies then in force, Tenant hereby waives (and agrees to cause any other
permitted occupants of the Demised Premises to execute and deliver to Owner
written instruments waiving) any right of recovery against Owner, any lessors
under any Superior Leases, the holders of any Mortgage, and all other tenants or
occupants of the Building, and any servants, employees, agents or contractors of
Owner, or of any such lessor, or holder or any such other tenants or occupants,
for any loss occasioned by fire or other casualty which is an insured risk under
such policies. In the event that at any time such insurance carriers shall not
include such or similar provisions in any such insurance policy, the waiver set
forth in the foregoing sentence (or in any written instrument executed by any
other permitted occupant of the Demised Premises) shall, upon notice given by
Tenant to Owner, be deemed of no further force or effect with respect to any
insured risks under such policy from and after the giving of such notice. During
any period while any such waiver of right of recovery is in effect, Tenant, or
any other permitted occupant of the Demised Premises, as the case may be, shall
look solely to the proceeds of such policies to compensate Tenant or such other
permitted occupant for any loss occasioned by fire or other casualty which is an
insured risk under such policies.
SECTION 9.05. Owner agrees, during the Demised Term, to obtain
and keep in full force and effect insurance against loss or damage by fire or
other casualty to the Building and to all of Owner's property referred to in
Article 4 as may be insurable under then obtainable standard forms of "all-risk"
insurance policies in an amount equal to not less than (i) the amount sufficient
to avoid coinsurance or (ii) eighty (80%) percent of the replacement value of
the Building and such property exclusive of footings and foundations, whichever
is greater.
ARTICLE 10
EMINENT DOMAIN
SECTION 10.01. TAKING OF THE DEMISED PREMISES: If the whole of
the Demised Premises shall be acquired for any public or quasi-public use or
purpose, whether by condemnation or by deed in lieu of condemnation, this Lease
and the Demised Term shall end as of the date of the vesting of title with the
same effect as if said date were the Expiration Date. If only a part of the
Demised Premises shall be so acquired or condemned then, except as otherwise
provided in this Section, this Lease and the Demised Term shall continue in
force and effect but, from and after the date of the vesting of title, the Fixed
Rent shall be reduced
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in the proportion which the area of the part of the Demised Premises so acquired
or condemned bears to the total area of the Demised Premises immediately prior
to such acquisition or condemnation. If only a part of the Real Property shawl
be so acquired or condemned, then (i) whether or not the Demised Premises shall
be affected thereby, Owner, at Owner's option, may give to Tenant, within sixty
(60) days next following the date upon which Owner shall have received notice of
vesting of title, a five (5) days' notice of termination of this Lease, and (ii)
if the part of the Real Property so acquired or condemned shall contain more
than ten (10%) percent of the total area of the Demised Premises immediately
prior to such acquisition or condemnation, or if, by reason of such acquisition
or condemnation, Tenant no longer has reasonable means of access to the Demised
Premises, Tenant, at Tenant's option, may give to Owner, within sixty (60) days
next following the date upon which Tenant shall have received notice of vesting
of title, a five (5) days' notice of termination of this Lease. In the event any
such five (5) days' notice of termination is given, by Owner or Tenant, this
Lease and the Demised Term shall come to an end and expire upon the expiration
of said five (5) days with the same effect as if the date of expiration of said
five (5) days were the Expiration Date. If a part of the Demised Premises shall
be so acquired or condemned and this Lease and the Demised Term shall not be
terminated pursuant to the foregoing provisions of this Section. Owner, at
Owner's expense, shall restore that part of the Demised Premises not so acquired
or condemned to a self-contained rental unit. In the event of any termination of
this Lease and the Demised Term pursuant to the provisions of this Section, the
Fixed Rent shall be apportioned as of the date of such termination and any
prepaid portion of Fixed Rent for any period after such date shall be refunded
by Owner to Tenant.
SECTION 10.02. CONDEMNATION AWARD OR CLAIMS: In the event of
any such acquisition or condemnation of all or any part of the Real Property,
Owner shall be entitled to receive the entire award for any such acquisition or
condemnation, Tenant shall have no claim against Owner or the condemning
authority for the value of any unexpired portion of the Demised Term and Tenant
hereby expressly assigns to Owner all of its right in and to any such award.
Nothing contained in this Section shall be deemed to prevent Tenant from making
a claim in any condemnation proceedings for the value of any items of Tenant's
Personal Property which are compensable, in law, as trade fixtures, or for
Tenant's moving expenses.
ARTICLE 11
ASSIGNMENT AND SUBLETTING
SECTION 11.01. GENERAL COVENANT: Tenant, for itself, its
heirs, distributees, executors, administrators, legal representatives,
successors and assigns, covenants that, without the prior consent of Owner in
each instance, it shall not (i) assign whether by merger, consolidation or
otherwise, mortgage or encumber its interest in this Lease, in whole or in part,
or (ii) sublet, or permit the subletting of, the Demised Premises or any part
thereof, or (iii) permit the Demised Premises or any part thereof to be
occupied, or used for desk space (other than by affiliates), mailing privileges
or otherwise, by any person other than Tenant. The sale, pledge, transfer or
other alienation of (a) any of the issued and outstanding capital stock of any
corporate Tenant (unless such stock is publicly traded on a recognized security
exchange or over-the counter market) or (b) any interest in any partnership or
joint venture
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Tenant, however accomplished, and whether in a single transaction or in a series
of related and/or unrelated transactions, shall be deemed for the purposes of
this Section as an assignment of this Lease which shall require the prior
consent of Owner in each instance.
SECTION 11.02. OWNER'S RIGHTS UPON ASSIGNMENT: If Tenant's
interest in this Lease is assigned, whether or not in violation of the
provisions of this Article, Owner may collect rent from the assignee; if the
Demised Premises or any part thereof are sublet to, or occupied by, or used by,
any person other than Tenant, whether or not in violation of this Article,
Owner, after default by Tenant under tints Lease, may collect rent from the
subtenant, user or occupant. In either case, Owner shall apply the net amount
collected to the rents reserved in this Lease, but neither any such assignment,
subletting, occupancy, or use, whether with or without Owner's prior consent,
nor any such collection or application, shall be deemed a waiver of any term,
covenant or condition of this Lease or the acceptance by Owner of such assignee,
subtenant, occupant or user as tenant. The consent by Owner to any assignment,
subletting, occupancy or use shall not relieve Tenant from its obligation to
obtain the express prior consent of Owner to any further assignment, subletting,
occupancy or use. If this Lease is assigned to any person or entity pursuant to
any proceeding of the type referred to in Subsections 16.01(c) and 16.01(d), any
and all monies or other consideration payable or otherwise to be delivered in
connection with such assignment shall be paid or delivered to Owner, shall be
and remain the exclusive property of Owner and shall not constitute property of
Tenant or of the estate of Tenant within the meaning of any proceeding of the
type referred to in Subsections 16.01(c) and 16.01(d). Any and all monies or
other considerations constituting Owner's property under the preceding sentence
nor paid or delivered to Owner shall be held in trust for the benefit of Owner
add shall be promptly paid to or turned over to Owner. Any person or entity to
which this Lease is assigned pursuant to any proceeding of the type referred to
in Subsections 16.01(c) and 16.01 (d) shall be deemed without further act or
deed to have assumed all of the obligations arising under this Lease on and
after the date of such assignment. Any such assignee shall execute and deliver
to Owner upon demand an instrument confirming such assumption. The listing of
any name other than that of Tenant on any door of the Demised Premises or on any
directory or in any elevator in the Building, or otherwise, shall not operate to
vest in the person so named any right or interest in this Lease or in the
Demised Premises, or the Building, or be deemed to constitute, or serve as a
substitute for, any prior consent of Owner required under this Article, and it
is understood that any such listing shall constitute a privilege extended by
Owner which shall be revocable at Owner's will by notice to Tenant. Tenant
agrees to pay to Owner reasonable counsel fees incurred by Owner in connection
with any proposed assignment of Tenant's interest in this Lease or any proposed
subletting of the Demised Premises or any part thereof. Neither any assignment
of Tenant's interest in this Lease nor any subletting, occupancy or use of the
Demised Premises or any part thereof by any person other than Tenant, nor any
collection of rent by Owner from any person other than Tenant as provided in
this Section, nor any application of any such rent as provided in this Section
shall, in any circumstances, relieve Tenant of its obligation fully to observe
and perform the terms, covenants and conditions of this Lease on Tenant is part
to be observed or performed.
SECTION 11.03. SUBLET RIGHTS: A. As long as Tenant is not in
default under any of the terms, covenants or conditions of this Lease on
Tenant's part to be observed or performed after notice and beyond the expiration
of any applicable grace and cure periods, Tenant shall have the right to give
notice to Owner (referred to as a "Tenant's Section 11.03 Sublet Notice") of
Tenant's intention to sublet all or any part of the Demised Premises (the
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space which Tenant intends to sublet is referred to in this Section as the
"Section 11.03 Sublet Space"), which notice shall set forth the proposed
commencement and expiration dates of the term of such intended subletting (and,
if the Section 11.03 Sublet Space, or any portion thereof, shall constitute less
than an entire floor, such notice shall be accompanied by a floor plan
delineating such Section 11.03 Sublet Space or portion thereof).
B. Within a period of thirty (30) days after the
giving of Tenant's Section 11.03 Sublet Notice, if the Section 11.03 Sublet
Space shall contain all or substantially all of the Demised Premises and the
proposed subletting shall be for all or substantially all of the remainder of
the Demised Term, Owner, at Owner's option, may give to Tenant, a notice
terminating this Lease on the date (referred to as the "Earlier Termination
Date") immediately prior to the proposed commencement date set forth in Tenant's
Section 11.03 Sublet Notice but in no event shall the Earlier Termination Date
occur prior to the expiration of the thirty (30) day period set forth above,
and, in the event such notice is given, this Lease and the Demised Term shall
come to an end and expire on the Earlier Termination Date with the same effect
as if it were the Expiration Date, the Fixed Rent shall be apportioned as of the
Earlier Termination Date and any prepaid portion of Fixed Rent for any period
after such date shall be refunded by Owner to Tenant. Within a period of thirty
(30) days after the giving of Tenant's Section 11.03 Sublet Notice, Owner, at
Owner's option, may give to Tenant a notice (referred to as a "Section 11.03
Elimination Notice") electing to eliminate the Section 11.03 Sublet Space (after
the giving of such notice, such Space is referred to as the "Eliminated Space")
from the Demised Premises during the period (referred to as the "Elimination
Period") commencing on the date (referred to as the "Elimination Date") which is
the proposed commencement date set forth in Tenant's Section 11.03 Sublet
Notice, but, in any event, not earlier than the date next following the
expiration of the thirty (30) day period set forth above, and ending on the
proposed expiration date set forth in Tenant's Section 11.03 Sublet Notice. In
the event any Section 11.03 Elimination Notice shall be given, the provisions of
Section 11.04 shall apply to the Eliminated Space.
C. If, at the expiration of the thirty (30) day
period set forth in subsection B of this Section 11.03, (1) Owner shall not have
given a notice terminating this Lease or a Section 11.03 Elimination Notice, and
(2) Tenant is not in default under any of the terms, covenants or conditions of
this Lease on Tenant's part to be observed or performed after notice and beyond
the expiration of any applicably grace and cure periods, Owner agrees thereafter
not unreasonably to withhold its prior consent to a subletting by Tenant of the
Section 11.03 Sublet Space. Without Owner's prior consent, Tenant shall not
publicly advertise the Demised Premises or any part thereof for subletting at a
rental lower than the rental at which Owner is then offering to rent comparable
space in the Building. Any such subletting shall be (a) for substantially the
same term set forth in Tenant's Section 11.03 Sublet Notice, (b) for undivided
occupancy by the subtenant of that part of the Demised Premises affected
thereby, and (c) for the use permitted in this Lease, and at no time shall there
be more than three (3) occupants in addition to Tenant and its subsidiaries and
affiliates, on any one (1) floor. At least fifteen (15) days prior to any such
proposed subletting, Tenant shall submit to Owner a statement (referred to as
the "Proposed Sublet Statement") containing the name and address of the proposed
subtenant, the nature of the proposed subtenant's business and its current
financial status, if such status is obtained or obtainable by Tenant, and all of
the principal terms and conditions of the proposed subletting, including, but
not limited to, the proposed commencement and expiration dates of the term
thereof, and unless the Section 11.03 Sublet Space shall constitute an entire
floor or floors, the Xxxxxxxx Xxxxxx
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Xxxxxxxxx xxxxx xx accompanied by a floor plan delineating the Section 11.03
Sublet Space. Owner may, however, withhold such consent if, in Owner's
reasonable judgment, the occupancy of the proposed subtenant will tend to impair
the character or dignity of the Building or impose any additional burden upon
Owner in the operation of the Building or the proposed subtenant shall be a
person or entity with whom Owner is then actively negotiating to lease space in
the Building or in Owner's reasonable judgment the occupancy of the proposed
subtenant will tend to impair the reputation of (x) the Building as an
information technology center or (y) the door on which the Section 11.03 Sublet
Space is located as a floor for information technology tenants or if Owner has
any other reasonable objections to such subletting. In the event of any dispute
between Owner and Tenant as to the reasonableness of Owner's refusal to consent
to any such proposed subletting, such dispute shall be determined by arbitration
in the City of New York in accordance with the provisions of subsection 11.03E.
Any such determination shall be final and binding upon the parties, whether or
not a judgment shall be entered in any court. If the determination of any such
arbitration shall be adverse to Owner, Owner, nevertheless, shall not be liable
to Tenant for a breach of Owner's covenant not unreasonably to withhold such
consent, and Tenant's sole remedy in such event shall be to enter into the
proposed subletting.
D. The covenant of Owner contained in Subsection C of
this Section 11.03 not unreasonably to withhold its consent to a proposed
subletting by Tenant of the Section 11.03 Sublet Space shall apply only for a
period of three hundred sixty-five (365) days next following the expiration of
the thirty (30) day period set forth in Subsection B of this Section 11.03 and
shall not apply after the expiration of such three hundred sixty-five (365) day
period subject, however, to Tenant's right to give to Owner another Tenant's
Section 11.03 Sublet Notice pursuant to the provisions of subsection A of this
Section 11.03.
E. If Tenant desires to determine any dispute between
Owner and Tenant as to (a) the reasonableness of Owner's decision to refuse to
consent to any subletting in accordance with the provisions of this Section
11.03, or (b) the validity of any assignment of Tenant's interest in this Lease
in accordance with the provisions of Section 11.08 dispute shall be settled and
finally determined by arbitration in the City of New York in accordance with the
following provisions of this Section. Within five (5) business days next
following the giving of any notice by Tenant to Owner stating that it wishes
such dispute to be so determined, Owner and Tenant shall each give notice to the
other setting forth the name and address of an arbitrator designated by the
party giving such notice. If either party shall fail to give notice of such
designation within said five (5) business days, then the arbitrator chosen by
the other side shall make the determination alone. The two arbitrators shall
designate a third arbitrator. If the two arbitrators shall fail to agree upon
the designation of a third arbitrator within five (5) business days after the
designation of the second arbitrator, then either party may apply to the Supreme
County of the State of New York, New York County, or to any other court having
jurisdiction, for the designation of such arbitrator. All arbitrators shall be
persons who shall have had at least ten (10) years continuous experience in the
business of appraising or managing real estate or acting as real estate agents
or brokers in the Borough of Manhattan. The three arbitrators shall conduct such
hearings as they deem appropriate, making their determination in writing and
giving notice to Owner and Tenant of their determination as soon as practicable,
and if possible, within five (5) business days after the designation of the
third arbitrator; the concurrence of any two of said arbitrators shall be
binding upon Owner and Tenant, or, in the event no two of the arbitrators shall
render a concurrent determination, then the determination of the third
arbitrator designated shall be
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binding upon Owner and Tenant. Any award rendered in any arbitration held
pursuant to this Section shall be final and binding upon Owner and Tenant,
whether or not a judgment shall be entered in any court. Each party shall pay
its own counsel fees and expenses, if any, in connection with any arbitration
under this Section, including the expenses and fees of any arbitrator selected
by it in accordance with the provisions of this Section, and the parties shall
otherwise share all other expenses and fees of any such arbitration. The
arbitrators shall be bound by the provisions of this Lease, and shall not add
to, subtract from or otherwise modify such provisions.
SECTION 11.04. ELIMINATED SPACE: A. In the event any Section
11.03 Elimination Notice shall be given by Owner (i) the Eliminated Space shall
be eliminated from the Demised Premises during the Elimination Period; (ii)
Tenant shall surrender the Eliminated Space to Owner on or prior to the
Elimination Date in the same manner as if said Date were the Expiration Date;
(iii) if the Eliminated Space shall constitute less than an entire floor, (a)
Owner, at Owner's expense, shall have the right to make any alterations and
installations in the Demised Premises required, in Owner's judgment, reasonably
exercised, to make the Eliminated Space a self-contained rental unit with access
through corridors to the elevators and core toilets serving the Eliminated
Space, and if the Demised Premises shall contain any core toilets (for the
purposes of this Article, core toilets shall be deemed to include any unisex
toilets) or any corridors (including any corridors proposed to be constructed by
Owner pursuant to this subdivision [iii]), providing access from the Eliminated
Space to the core area, (b) Owner and any tenant or other occupant of the
Eliminated Space shall have the right to use such toilets and corridors in
common with Tenant and any other permitted occupants of the Demised Premises,
and the right to install signs and directional indicators in or about such
corridors indicating the name and location of such tenant or other occupant;
(iv) during the Elimination Period, the Fixed Rent and the Demised Premises Area
(as defined in Article 23) shall each be reduced in the proportion which the
area of the Eliminated Space bears to the total area of the Demised Premises
immediately prior to the Elimination Date and the applicable Tenant's Electrical
Share (as defined in Section 29.05) shall be reduced in the proportion which the
area of the Eliminated Space bears to the total area of that portion of the
Demised Premises on the floor on which the Eliminated Space is located
(including an equitable portion of the area of any corridors referred to in
subdivision (iii) of this sentence as part of the area of the Eliminated Space
for the purpose of computing all such reductions), and any prepaid portion of
Fixed Rent for any period after the Elimination Date allocable to the Eliminated
Space shall be refunded by Owner to Tenant and in the event that the Eliminated
Space shall be the entire Demised Premises, during the Elimination Period,
Tenant shall have no rights with respect to the Demised Premises nor any
obligations with respect to the Demised Premises, including, but not limited to,
any obligations to pay Fixed Rent or any increases therein or any additional
rent, (v) there shall be an equitable apportionment of any increase in the Fixed
Rent pursuant to Article 23 for the Escalation Year and Tax Escalation Year (as
defined in Article 23) in which said Elimination Date shall occur; (vi) if the
Elimination Period shall end prior to the Expiration Date, the Eliminated Space,
in its then existing condition, (provided it is usable for general offices as an
information technology and related media business [or is put in such condition
by Owner at Owner's expense prior to the Restoration Period]) shall be deemed
restored to and once again a part of the Demised Premises during the period
Referred to as the "Restoration Period") commencing an the date next following
the expiration of the Elimination Period and ending on the Expiration Date;
(vii) during the Restoration Period, if any, the Fixed Rent and the Demised
Premises Area, shall each be increased in the proportion which the area of the
Eliminated Space bears to the
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total area of the Demised Premises immediately prior to the commencement of the
Restoration Period and the applicable Tenant's Electrical Share shall be
increased in the proportion which the area of the Eliminated Space bears to the
total area of that portion of the Demised Premises on the floor on which the
Eliminated Space is located (including an equitable portion of the area of any
corridors referred to in subdivision (iii) of this sentence as a part of the
area of the Eliminated Space for the purpose of computing all such increases)
and in the event that the Eliminated Space shall be the entire Demised Demises,
during the Restoration Period, the Demised Premises, in its then existing
condition, (provided it is usable for general offices as an information
technology and related media business [or is put in such condition by Owner at
Owner's expense prior to the Restoration Period]) shall be deemed restored to
Tenant and Tenant shall have all rights with respect to the Demised Premises
which are set forth in this Lease and all obligations with respect to the
Demised Premises which are set forth in this Lease, including, but not limited
to, the obligations for the payment of Fixed Rent and any increases therein and
any additional rent (as they would have been adjusted if Tenant occupied the
Demised Premises during the Elimination Period); and (viii) there shall be an
equitable apportionment of any increase in the Fixed Rent pursuant to Article 23
for the Escalation Year and Tax Escalation Year in which the Restoration Period,
if any, shall commence; however, notwithstanding the foregoing, Owner and Tenant
acknowledge the possibility that all or any of the tenants or occupants of the
Eliminated Space may not have vacated and surrendered all or any portions of the
Eliminated Space to Owner by the Commencement of the Restoration Period;
accordingly, notwithstanding anything to the contrary contained in the foregoing
provisions of this Section, (1) the Restoration Period applicable to the
Eliminated Space shall not commence until the date upon which Owner shall give
Tenant possession of the Eliminated Space vacant and free of any occupancies and
(2) except as set forth in this sentence, neither the validity of this Lease nor
the obligations of Tenant under this Lease shall be affected thereby and (3)
Tenant waives any right to rescind this Lease and to recover any damages from
Owner which may result from the failure of Owner to deliver possession of all or
any portions of the Eliminated Space on the commencement of she Restoration
Period and Owner shall institute, within thirty (30) days after the commencement
of the Restoration Period, possession proceedings against any tenants and
occupants who have not so vacated and surrendered all or any portions of the
Eliminated Space, and shall prosecute such proceedings with reasonable
diligence.
B. At the request of Owner, Tenant shall execute and
deliver an instrument or instruments, in form reasonably satisfactory to Owner,
setting forth any modifications to this Lease contemplated in or resulting from
the operation of the provisions of this Section and Section 11.03; however,
neither Owner's failure to request any such instrument nor Tenant's failure to
execute or deliver any such instrument stall vitiate the effect of the
provisions of this Section and Section 11.03. The failure by Owner to exercise
its option under Section 11.03 with respect to any subletting shall not be
deemed a waiver of such option with respect to any extension of such subletting
or any subsequent subletting of the premises affected thereby or any other
portion of the Demised Premises. If (a) Owner shall (i) fail or refuse to
consent to any proposed subletting, or (ii) exercise any of its options under
this Section 11.03, or (b) any proposed subletting shall fail to be consummated
for any reason whatsoever, Tenant shall indemnify Owner from all loss, cost,
liability, damage and expense, including, but not limited to, reasonable counsel
fees and disbursements, arising from any claims against Owner by any broker or
other person, for a brokerage commission or other similar compensation in
connection with any such proposed subletting.
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C. Tenant agrees that (1) one-half (1/2) of any
increase in the rental value of the Demised Premises over and above the Fixed
Rent payable pursuant to the provisions of this Lease, as such Fixed Rent may be
increased from time to time pursuant to the provisions of this Lease, and (2)
any consideration paid to Tenant or any subtenant or other person claiming
through or under Tenant in connection with an assignment of Tenant's interest in
this Lease or the interest of any subtenant or other person claiming through or
under Tenant under any sublease whether or not such assignment shall be effected
with court approval in a proceeding of the types described in Subsection
16.01(c) or (d), or in any similar proceeding, or otherwise, shall accrue to the
benefit of Owner and not to the benefit of Tenant, or of any subtenant or other
person claiming through or under Tenant, or of the creditors of Tenant or of any
such subtenant or other person claiming through or under Tenant. Accordingly,
Tenant agrees that if Owner shall fail to exercise its option to sooner
terminate this Lease in connection with any proposed subletting by Tenant of all
or substantially all of the Demised Premises, or its option to eliminate the
Demised Premises or to eliminate from the Demised Premises any portion thereof,
in connection with any proposed subletting by Tenant of the entire Demised
Premises or any portion thereof, or if any subtenant or other person claiming
through or under Tenant shall sublet all or any portion of the Demised Premises,
Tenant shall pay to Owner a sum equal to one-half (1/2) of any Subletting
Profit, as such term is hereinafter defined. All rentals and other sums
(including, but not limited to, sums payable for the sale or rental of any
fixtures, leasehold improvements, equipment, furniture or other personal
property, less, in the case of the sale thereof, the then net unamortized [on a
straight-line basis over the term of this Lease or, in the event of a further
subletting; over the term of the initial sublease, as the case may be] cost
thereof, which were provided and installed in the sublet premises at the sole
cost and expense of Tenant or such subtenant or other person claiming through or
under Tenant and for which no allowance or other credit has been given by Owner)
paid by any subtenant to Tenant or to any subtenant or other person claiming
through or under Tenant in connection with (i) any subletting of the entire
Demised Premises in excess of the Fixed Rent then payable by Tenant to Owner
under this Lease, or (ii) any subletting of a portion of the Demised Premises in
excess of that proportion of the Fixed Rent payable by Tenant to Owner under
this Lease which the area of the portion Demised Premises so sublet bears to the
total area of the Demised Premises, are referred to, in the aggregate, as
"Subletting Profit"; provided, however, in computing any Subletting Profit there
shall first be deducted from such excess a reasonable brokerage commission
reasonable counsel fees, the reasonable cost of altering the sublet space, any
reasonable rental concessions and so-called takeover obligations and other
reasonable expenses incurred in connection with such subletting. Tenant agrees
that if Tenant, or any subtenant or other person claiming through or under
Tenant, shall assign or have assigned its interest as Tenant under this Lease or
its interest as subtenant under any sublease, as the case may be, whether or not
such assignment shall be effected with court approval in a proceeding of the
types described in Subsections 16.01(c) or (d), or in any similar proceeding, or
otherwise. Tenant shall pay to Owner a sum equal to any consideration payable to
Tenant or any subtenant or other person claiming through or under Tenant for
such assignment. All sums payable hereunder to Tenant shall be paid to Owner as
additional rent immediately upon such sums being paid to Tenant or to any
subtenant or other person claiming through or under Tenant and, if requested by
Owner, Tenant shall promptly enter into a written agreement with Owner setting
forth the amount of such sums to be paid to Owner, however, neither Owner's
failure to request the execution of such agreement nor Tenant's failure to
execute such agreement shall vitiate the provisions of this Section. For the
purposes of this Article, a
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trustee, receiver or other representative of the Tenant's or any subtenant's
estate under any federal or state bankruptcy act shall be deemed a person
claiming through or under Tenant.
D. Neither Owner's consent to any subletting nor
anything contained in this Section shall be deemed to grant to any subtenant or
other person claiming through or under Tenant the right to sublet all or any
portion of the Demised Premises or to permit the occupancy of all or any portion
of the Demised Premises by others. Neither any subtenant referred to in this
Section nor its heirs, distributees, executors, administrators, legal
representatives, successors nor assigns, without the prior consent of Owner in
each instance, shall (i) assign, whether by merger, consolidation or otherwise,
mortgage or encumber its interest in any sublease, in whole or in part, or (ii)
sublet, or permit the subletting of, that part of the Demised Premises affected
by such subletting or any portion thereof, or (iii) permit such part of the
Demised Premises affected by such subletting or any portion thereof to be
occupied or used for desk space, mailing privileges or otherwise, by any person
other than such subtenant and any sublease shall provide that any violation of
the foregoing provisions of this sentence shall be an event of default
thereunder. The sale, pledge, transfer or other alienation of (a) any of the
issued and outstanding capital stock of any corporate subtenant (unless such
stock is publicly traded on any recognized security exchange or over-the-counter
market) or (b) any interest in any partnership or joint venture subtenant,
however accomplished, and whether in a single transaction or in a series of
related or unrelated transactions, shall be deemed for the purposes of this
Section to be an assignment of such sublease which shall require the prior
consent of Owner in each instance and any sublease shall so provide.
SECTION 11.05. OWNER'S RIGHTS UPON LEASE DISAFFIRMANCE: A. In the event
that, at any time after Tenant may have assigned Tenant's interest in this
Lease, this Lease shall be disaffirmed or rejected in any proceeding of the
types described in Subsections 16.01(c) and (d), or in any similar proceeding,
or in the event of termination of this Lease by reason of any such proceeding or
by reason of lapse of time following notice of termination given pursuant to
Section 16.01 based upon any of the Events of Default set forth in said
Subsections, Tenant, upon request of Owner given within thirty (30) days next
following any such disaffirmance, rejection or termination (and actual notice
thereof to Owner in the event of a disaffirmance or rejection or in the event of
termination other than by act of Owner), shall (i) pay to Owner all Fixed Rent,
additional rent and other charges due and owing by the assignee to Owner under
this Lease to and including the date of such disaffirmance, rejection or
termination, and (ii) as "tenant", enter into a new lease with Owner of the
Demised Premises for a term commencing on the effective date of such
disaffirmance, rejection or termination and ending on the Expiration Date unless
sooner terminated as in such lease provided, at the same Fixed Rent and then
executory terms, covenants and conditions as are contained in this Lease, except
that (a) Tenant's rights under the new lease shall be subject to the possessory
rights of the assignee under this Lease and the possessory rights of any person
claiming through or under such assignee or by virtue of any statute or of any
order of any court, and (b) such new lease shall require all defaults existing
under this Lease to be cured by Tenant with due diligence, and (c) such new
lease shall require Tenant to pay all increases in the Fixed Rent reserved in
this Lease which, had this Lease not been so disaffirmed, rejected or
terminated, would have accrued under the provisions of Article 23 of this Lease
after the date of such disaffirmance, rejection or termination with respect to
any period prior thereto. In the event Tenant shall default in its obligation to
enter into said new lease for a period of ten (10) days next following Owner's
request therefor, then, in addition to all other rights and
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remedies by reason of such default, either at law or in equity, Owner shall have
the same rights and remedies against Tenant as if Tenant had entered into such
new lease and such new lease had thereafter been terminated as at the
commencement date thereof by reason of Tenant's default thereunder. Nothing
contained in this Section shall be deemed to grant to Tenant any right to assign
Tenant's interest in this Lease.
SECTION 11.06. Notwithstanding anything to the contrary
contained in this Lease, Tenant agrees that the stock of Tenant shall not be
sold, pledged, transferred or otherwise alienated except to or among Xxxxx
Xxxxxx, Xxxxx Xxxxx and Xxxx Xxxxxxx or any spouse of Xxxxx Xxxxxx, Xxxxx Xxxxx
and Xxxx Xxxxxxx or any of the lineal descendants of Xxxxx Xxxxxx, Xxxxx Xxxxx
and Xxxx Xxxxxxx or their spouses.
SECTION 11.07. Notwithstanding anything to the contrary
contained in the foregoing provisions of this Lease, including, but not limited
to, the provisions of this Article, a public offering of the stock or interest
of Tenant named herein on a recognized security exchange or over-the-counter
market shall not be considered an assignment of this lease requiring the prior
approval of Owner.
SECTION 11.08. Supplementing the provisions of Article 11, as
long as Tenant is not then in default under any of the terms, covenants or
conditions of this Lease on Tenant's part to be observed or performed, after
notice and expiration of applicable cure periods, Owner's consent shall not be
required to an assignment of Tenant's interest in this Lease to any person,
corporation, partnership, or other business entity which is a successor of
Tenant, either by merger or consolidation or the purchase of all or
substantially all of the assets, business and goodwill of N2K Inc., Tenant named
herein, provided that said person, corporation, partnership or other business
entity shall have a net worth, as determined in accordance with generally
accepted accounting principles consistently applied, at least equal to that of
Tenant named herein as of the date of this Lease, and provided further that such
successor, person, corporation, partnership or other business entity shall
continue to operate Tenant's present business in the Demised Premises and the
interest of Tenant named herein in this Lease is not the sole or principal asset
of Tenant named herein and such assignment is made for a good business purpose.
At the time of said proposed assignment, Tenant shall deliver to Owner a
reasonably detailed statement of the financial condition of the aforesaid
proposed assignee, prepared in accordance with generally accepted accounting
principles applied on a consistent basis, sworn to by an executive officer of
Tenant and the proposed Assignee, which statement shall rented the financial
condition of the aforesaid proposed assignee at that time. Notwithstanding
anything contained in this Section to the contrary, such assignment shall not be
valid if the aforesaid proposed assignee shall not have a net worth, at least
equal to that of Tenant as of the date of this Lease or the interest of Tenant
named herein in this Lease is the sole or principal asset of Tenant named herein
or such assignment is not made for a good business purpose. In the event of any
dispute between Owner and Tenant as to the validity of any such assignment such
dispute shall be determined by arbitration in the City of New York in accordance
with the provisions of Subsection 11.03E. Any such determination shall be final
and binding upon the parties whether or not a judgment shall be entered in any
court. If the determination of any such arbitration shall be adverse to Owner,
Owner, nevertheless, shall not be liable to Tenant and Tenant's sole remedy in
such event shall be to have the proposed assignment deemed valid. No such
assignment shall be valid, unless, within ten (10) days after the execution
thereof, Tenant shall deliver to Owner (I) a duplicate original instrument of
assignment in form and substance reasonably satisfactory to
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Owner duly executed by Tenant, acknowledged before a notary public, in customary
and reasonable form and substance in which Tenant shall (a) waive all notices of
default given to the assignee and ail other notices of every kind or
description, now or hereafter provided in this Lease, by statute or by rule of
law; (b) acknowledge that Tenant's obligations with respect to this Lease shall
not be discharged, released or impaired by (i) such assignment; (ii) any
amendment or modification of this Lease (whether or not the obligations of
Tenant are increased thereby); (iii) any further assignment or transfer of
Tenant's interest in this Lease; (iv) any non-exercise or waiver by Owner of any
right, remedy, power or privilege under or with respect to this Lease; (iv) any
waiver, consent, extension, indulgence or other act or omission with respect to
any of the obligations of Tenant under this Lease: (vi) any act or thing which,
but for the provisions of such assignment, might be deemed a legal or equitable
discharge of a surety or assignor, to all of which Tenant shall consent in
advance; it being the purpose and intent of Owner and Tenant that the
obligations of Tenant hereunder as assignor shall be absolute and unconditional
under any and all circumstances; and (II) an instrument in form and substance
reasonably satisfactory to Owner, duly executed by the proposed assignee,
acknowledged before a notary public, in which such proposed assignee shall
assume observance and performance of, and agree to be bound by, all of the
terms, covenants and conditions of this Lease on Tenant's part to be performed.
SECTION 11.09. A. Supplementing the provisions of Article 11,
as long as Tenant is not in default under any of the terms, covenants or
conditions of this Lease on Tenant's part to be observed and performed, after
notice and expiration of applicable cure periods, N2K Inc., Tenant named herein,
shall have the right, without the prior consent of Owner, to assign its interest
in this Lease, for the use permitted in this Lease, to any subsidiary or
affiliate of Tenant named herein, which is in the same general line of business
as Tenant named herein and only for such period as it shall remain such
subsidiary or affiliate. For the purposes of this Article: (a) a "subsidiary" of
Tenant named herein shall mean any corporation not less than fifty-one (51%)
percent of whose outstanding voting stock at the time shall be owned by Tenant
named herein, and (b) an "affiliate" of Tenant named herein shall mean Tenant's
parent and any corporation, partnership or other business entity which controls
or is controlled by, or is under common control with Tenant. For the purpose of
the definition of "affiliate" the word "control" (including, "controlled by" and
"under common control with") as used with respect to any corporation,
partnership or other business entity, shall mean the possession of the power to
direct or cause the direction of the management and policies of such
corporation, partnership or other business entity, whether through the ownership
of voting securities or contract. No such assignment shall be valid or effective
unless, within ten (10) days after the execution thereof, Tenant shall deliver
to Owner all of the following: (I) a duplicate original instrument of
assignment, in form and substance reasonably satisfactory to Owner, duly
executed by Tenant, in customary and reasonable form and substance in which
Tenant shall (a) waive all notices of default given to the assignee, and all
other notices of every kind or description now or hereafter provided in this
Lease, by statute or rule of law, and (b) acknowledge that Tenant's obligations
with respect to this Lease shall not be discharged, released or impaired by (i)
such assignment, (ii) any amendment or modification of this Lease, whether or
not the obligations of Tenant are increased thereby, (iii) any further
assignment or transfer of Tenant's interest in this Lease, (iv) any exercise,
non-exercise or waiver by Owner of any right, remedy, power or privilege under
or with respect to this Lease, (v) any waiver, consent, extension, indulgence or
other act or omission with respect to any other obligations of Tenant under this
Lease, (vi) any act or thing which, but for the provisions of such assignment,
might be deemed a legal or equitable discharge of a surety or
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assignor, to all of which Tenant shall consent in advance, it being the purpose
and intent of Owner and Tenant that the obligations of Tenant hereunder as
assignor shall be absolute and unconditional under any and all circumstances,
and (II) an instrument, in form and substance reasonably satisfactory to Owner,
duly executed by the assignee, in which such assignee shall assume the
observance and performance of, and agree to be bound by, all of the terms,
covenants and conditions of this Lease on Tenant's part to be observed and
performed.
B. Further supplementing the provisions of Article
11, as long as Tenant is not in default under any of the terms, covenants or
conditions of this Lease on Tenant's part to be observed and performed, after
notice and the expiration of applicable cure periods N2K Inc. Tenant named
herein, shall have the right without the prior consent of Owner, to sublet to,
or permit the use or occupancy of, all or any part of the Demised Premises by
any subsidiary or affiliate (as said terms are defined in Section 11.09A.) of
Tenant named herein for the use permitted in this Lease provided that such
subsidiary or affiliate is in the same general line of business as the Tenant
named herein and only for such period as it shall reattain such subsidiary or
affiliate and in the same general line of business as the Tenant named herein.
However, no such subletting shall be valid unless, prior to the execution
thereof, Tenant shall give notice to Owner of the proposed subletting, and
within ten (10) days prior commencement of said subletting, Tenant shall deliver
to Owner an agreement, in form and substance reasonably satisfactory to Owner,
duly executed by Tenant and said subtenant, in which said subtenant shall assume
performance of and agree to be bound by, all of the terms, covenants and
conditions of this Lease which are applicable to said subtenant and such
subletting. Tenant shall give prompt notice to Owner of any such use or
occupancy of all or any part of the Demised Premises and such use or occupancy
shall be subject and subordinate to all of the terms, covenants and conditions
of this Lease. No such use or occupancy shall operate to vest in the user or
occupant any right or interest in this Lease or the Demised Premises. For the
purposes of determining the number of subtenants or occupants in the Demised
Premises, the occupancy of any such permitted subsidiary or affiliate of Tenant
shall be deemed the occupancy of Tenant and such subsidiary or affiliate shall
not be counted as a subtenant or occupant for the purposes of Section 11.03 and
the provisions of Section 11.03 relating to Owner's option to terminate this
Lease and the provisions of Section 11.03 relating to Subletting Profits shall
not be applicable to any proposed subletting to any such subsidiary or affiliate
of Tenant pursuant to the provisions of this Section.
ARTICLE 12
OWNER'S INITIAL CONSTRUCTION
SECTION 12.01. Owner agrees to perform work and make
installations in the Demised Premises as set forth in Addendum A. Such work and
installations are referred to as "Owner's Initial Construction". All of the
terms, covenants and conditions of Addendum A are incorporated in this Lease by
reference and shall be deemed a part of this Lease as though fully set forth in
the body of this Lease.
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ARTICLE 13
ACCESS TO DEMISED PREMISES
SECTION 13.01. OWNER'S RIGHT TO ENTER: Owner and its agents
shall have the following rights in and about the Demised Premises: (i) to enter
the Demised Premises at all times to examine the Demised Premises or for any of
the purposes set forth in this Article or for the purpose of performing any
obligation of Owner under this Lease or exercising any right or remedy reserved
to Owner in this Lease, or complying with any Legal Requirement which Owner is
obligated to comply with hereunder, and if Tenant, its officers, partners,
agents or employees shall not be personally present or shall not open and permit
an entry into the Demised Premises at any time when such entry shall be
necessary or permissible, to use a master key or to forcibly enter the Demised
Premises: (ii) to erect, install, use and maintain pipes, ducts and conduits in
and through the Demised Premises: (iii) to exhibit the Demised Premises to
others; (iv) to make such decorations, repairs, alterations, improvements or
additions, or to perform such maintenance, including, but not limited to, the
maintenance of all heating, air conditioning, ventilating, elevator, plumbing,
electrical, telecommunication and other mechanical facilities, as Owner may deem
necessary or desirable; (v) to take all materials into and upon the Demised
Premises that may be required in connection with any such decorations, repairs,
alterations, improvements, additions or maintenance: add (vi) to alter, renovate
and decorate the Demised Premises at any time during the Demised Term if Tenant
shall have removed all or substantially all of Tenant's property from the
Demised Premises. The lessors under any Superior Lease and the holders of any
Mortgage shall have the right to enter the Demised Premises from time to hum
through their respective employees, agents, representatives and architects to
inspect the same or to cure any default of Owner or Tenant relating thereto.
Owner shall have the right, from time to time, to change the name, number or
designation by which the Building is commonly known which right shall include,
without limitation, the right to name the Building after any tenant of the
Building.
SECTION 13.02. OWNER'S RESERVATION RIGHTS TO PORTIONS OF THE
BUILDING: All parts (except surfaces facing the interior of the Demised
Premises) of all walls, windows and doors bounding the Demised Premises
(including exterior Building walls, core corridor walls, doors and entrances),
all balconies, terraces and roofs adjacent to the Demised Premises, all space in
or adjacent to the Demised Premises used for shafts, stacks, stairways, chutes,
pipes, conduits, ducts, fan rooms, heating, air conditioning, ventilating,
plumbing, electrical, telecommunication and other mechanical facilities,
closets, service closets and other Building facilities, and the use thereof, as
well as access thereto through the Demised Premises for the purposes of
operation, maintenance, alteration and repair, are hereby reserved to Owner.
Owner also reserves the right at any time to change the arrangement or location
of entrances, passageways, doors, doorways, corridors, elevators, stairs,
toilets and other public parts of the Building, provided any such change does
not permanently and unreasonably obstruct Tenant's access to the Demised
Premises. Nothing contained in this Article shall impose any obligation upon
Owner with respect to the operation, maintenance, alteration or repair of the
Demised Premises or the Building.
SECTION 13.03. ACCESS TO THIRD PARTIES: Owner and its agents
shall have the right to permit access to the Demised Premises, whether or not
Tenant shall be present, to any receiver, trustee, assignee for the benefit of
creditors, sheriff, marshal or court officer entitled to, or reasonably
purporting to be entitled to, such reasonable access for the purpose of taking
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possession of, or removing, any property of Tenant or any other occupant of the
Demised Premises, or for any other lawful purpose, or by any representative of
the fire, police, building, sanitation or other department of the City, State or
Federal Governments. Neither anything contained in this Section, nor any action
taken by Owner under this Section, shall be deemed to constitute recognition by
Owner that any person other than Tenant has any right or interest in this Lease
or the Demised Premises.
SECTION 13.04. NO ACTUAL OR CONSTRUCTIVE EVICTION: The
exercise by Owner or its agents or by the lessor under any Superior Lease or by
the holder of any Mortgage of any right reserved to Owner in this Article shall
not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Owner, or
its agents, or upon any lessor under any Superior Lease or upon the holder of
any Mortgage, by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise.
SECTION 13.05. Supplementing the provisions of Sections 13.01,
13.02 and 13.03, Owner agrees that except in cases of emergency, any entry upon
the Demised Premises pursuant to the provisions of said Sections shall be made
at reasonable times, and only after reasonable advance notice (which may be
retailed, delivered or left at the Demised Premises, notwithstanding any
contrary provisions of Article 27), and any work performed or installation made
pursuant to said Section shall be made with reasonable diligence and any such
entry, work or installations shall be made in a manner designed to minimize
interference with Tenant's normal business operations (however, nothing
contained in this Section shall be deemed to impose upon Owner any obligation to
employ contractors or labor at so-called overtime or other premium pay rates).
SECTION 13.06. Further supplementing the provisions of
Sections 13.01 and 13.03, Owner's right to exhibit the Demised Premises m others
shall be limited to insurance companies and representatives thereof, prospective
purchasers of the Real Property or the Building, holders or prospective holders
of any mortgage affecting the Real Property or the Building or any ground or
underlying lease, and other legitimate business visitors, and, during the last
eighteen (18) months of the Demised Term, any prospective tenant of the Demised
Premises.
SECTION 13.07. Further supplementing the provisions of Section
13.01, Owner agrees that any pipes, ducts or conduits installed in or through
the Demised Premises during the Demised Term pursuant to the provisions of
Section 13.01, shall either be concealed behind, beneath or within partitioning,
columns, ceilings or floors, or completely furred at points immediately adjacent
to partitioning, columns or ceilings, and that when the installation of such
pipes, ducts or conduits shall be completed, such pipes, ducts or conduits shall
not materially reduce the usable area of the Demised Premises.
SECTION 13.08. In the event that all or part of the Demised
Premises are rendered untenantable by reason of interruption or reduction of
services, Tenant may give to Owner written notice thereof. Owner agrees that if
after the expiration of ten (10) consecutive business days following receipt of
such notice, in which the Demised Premises are so untenantable as hereinabove
provided the Demised Premises or the applicable portion thereof shall continue
to be untenantable by reason of such interruption or reduction of services (but
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excluding any interruption caused by, or repair necessitated by, a casualty, a
taking by exercise of the right of eminent domain or the wrongful acts, wrongful
omissions or negligence of Tenant or anyone claiming by, through or under
Tenant, or their respective employees, agents, contractors or invitees), then,
commencing on the day after the expiration of such consecutive ten (10) day
period in which the Demised Premises are so untenantable as hereinabove
provided, Fixed Rent under Article 1 and increases thereof under Article 23
shall xxxxx until the Demised Premises, or such portion thereof as has been
rendered untenantable, are rendered tenantable, provided, (i) Tenant shall not
have been using or occupying all or such portion of the Demised Premises for the
conduct of its business; and (ii) if less than substantially all of the Demised
Premises are untenantable, Tenant shall continue to pay Fixed Rent under Article
1 and increases thereof under Article 23 with respect to the tenantable portion
of the Demised Premises which is satisfactory for the conduct of Tenant's normal
business based on the proportion that the rentable square feet of the tenantable
portion of the Demised Premises bears to the total rentable square feet of the
Demised Premises.
ARTICLE 14
VAULT SPACE
SECTION 14.01. The Demised Premises do not contain any vaults,
vault space or other space outside the boundaries of the Real Property,
notwithstanding anything contained in this Lease or indicated on any sketch,
blueprint or plan. Owner makes no representation as to the location of the
boundaries of the Real Property. All vaults and vault space and all other space
outside the boundaries of the Real Property which Tenant may be permitted to use
or occupy are to be used or occupied under a revocable license, and if any such
license shall be revoked, or if the amount of such space shall be diminished or
required by any Federal, State or Municipal Authority or by any public utility
company, such revocation, diminution or requisition shall not constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of rent, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Owner. Any fee, tax or charge
imposed by any governmental authority for any such vault, vault space or other
space shall be paid by Tenant.
ARTICLE 15
CERTIFICATE OF OCCUPANCY
SECTION 15.01. Tenant will not at any time use or occupy, or
permit the use or occupancy of the Demised Premises in violation of any
Certificate(s) of Occupancy covering the Demised Premises. Owner agrees that a
temporary or permanent Certificate(s) of Occupancy covering the Demised Premises
will be in force on the Commencement Date permitting the Demised Premises to be
used as "offices". Owner agrees not to change the Certificate(s) of Occupancy
covering the Demised Premises to prevent their use as offices in accordance with
the provisions of this Section. However, neither such agreement, nor any other
provision of this Lease, nor any act or omission of Owner, its agents or
contractors, shall be deemed to constitute a representation or warranty that the
Demised Premises, or any part thereof, may be lawfully used or occupied for any
particular purpose or in any particular manner, in contradistinction to mere
"office" use. In the event that during the Demised Term
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any such Certificate(s) of Occupancy covering the Demised Premises are not in
force and effect and (i) the loss of any such Certificate(s) of Occupancy is due
to the improper acts, improper omissions or negligence of Tenant or any person
claiming through or under Tenant or any of their servants, employees,
contractors, agents, visitors or licensees or (ii) Tenant is not required to
vacate the Demised Premises or any portion thereof by any action, proceeding or
direction of the applicable governmental authority, then neither Owner nor its
agents, nor the lessor under any ground or underlying lease nor the holder of
any mortgage affecting the Building or the Real Property shall have any
liability to Tenant by reason of the fact that any such Certificate(s) of
Occupancy covering the Demised Premises are not in force and effect and no such
fact shall constitute an actual or constructive eviction, in whole or in part,
or entitle Tenant to any abatement or diminution of rent or relieve Tenant from
any of its obligations under this Lease or impose any liability upon Owner.
ARTICLE 16
DEFAULT
SECTION 16.01. EVENTS OF DEFAULT: Upon the occurrence, at any
time prior to or during the Demised Term, of any one or more of the following
events (referred to herein, singly, as an "Event of Default" and collectively as
"Events of Default"):
(A) if Tenant shall default in the payment when due
of any installment of Fixed Rent or any increase in the Fixed
Rent or in the payment when due of any additional rent and
such default shall continue for a period of ten (10) days
after notice by Owner to Tenant of such default; or
(B) if Tenant shall default in the observance or
performance of any term, covenant or condition of this Lease
on Tenant's part to be observed or performed (other than the
covenants for the payment of Fixed Rent, any increase in the
Fixed Rent and additional rent) and Tenant shall fail to
remedy such default within thirty (30) days after notice by
Owner to Tenant of such default, or if such default is of such
a nature that it cannot be completely remedied within said
period of thirty (30) days and Tenant shall not commence,
promptly after receipt of such notice, or shall not thereafter
diligently prosecute to completion, all steps necessary to
remedy such default; or
(C) if Tenant shall file a voluntary petition in
bankruptcy or insolvency, or shall be adjudicated a bankrupt
or insolvent, or shall file any petition or answer seeking any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present
or any future federal bankruptcy act or any other present or
future applicable federal, state or other statute or law, or
shall make an assignment for the benefit of creditors, or
shall seek or consent to or acquiesce in the appointment of
any trustee, receiver or liquidator of Tenant or of all or any
part of Tenant's property; or
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(D) if, within ninety (90) days after the
commencement of any proceeding against Tenant, whether by the
filing of a petition or otherwise, seeking any reorganization,
arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future
federal bankruptcy act or any other present or future
applicable federal, state or other statute or law, such
proceeding shall not have been dismissed, or if, within ninety
(90) days after the appointment of any trustee, receiver or
liquidator of Tenant, or of all or any part of Tenant's
property, without the consent or acquiescence of Tenant, such
appointment shall not have been vacated or otherwise
discharged, or if any execution or attachment shall be issued
against Tenant or any of Tenant's property pursuant to which
the Demised Premises shall be taken or occupied or attempted
to be taken or occupied; or
(E) if Tenant shall default in the observance or
performance of any term, covenant or condition on Tenant's
part to be observed or performed under any other lease with
Owner of space in the Building and such default shall continue
beyond any grace period set forth in such other lease for the
remedying of such default; or
(F) if (i) Tenant's interest in this Lease shall
devolve upon or pass to any person, whether by operation of
law or otherwise, or (ii) there shall be any sale, pledge,
transfer or other alienation described in Section 11.01 of
this Lease which is deemed an assignment of this Lease for
purposes of said Section 11.01, except as expressly permitted
under Article 11;
then, during such time as such Event(s) of Default is/are continuing, Owner may
at any time, at Owner's option, give to Tenant a five (5) days' notice of
termination of this Lease and, in the event such notice is given, this Lease and
the Demised Term shall come to an end and expire (whether or not said term shall
have commenced) upon the expiration of said five (5) days with the same effect
as if the date of expiration of said five (5) days were the Expiration Date, but
Tenant shall remain liable for damages and all other sums payable pursuant to
the provisions of Article 18.
SECTION 16.02. "TENANT"/MONEYS RECEIVED: If, at any time (i)
Tenant shall be comprised of two (2) or more persons, or (ii) Tenant's
obligations under this Lease shall have been guaranteed by any person other than
Tenant, or (iii) Tenant's interest in this Lease shall have been assigned, the
word "Tenant", as used in Subsections (c) and (d) of Section 16.01, shall be
deemed to mean any one or more of the persons primarily or secondarily liable
for Tenant's obligations under this Lease. Any monies received by Owner from or
on behalf of Tenant during the pendency of any proceeding of the types referred
to in said Subsections (c) and (d) shall be deemed paid as compensation for the
use and occupation of the Demised Premises and the acceptance of any such
compensation by Owner shall not be deemed an acceptance of rent or a waiver on
the part of Owner of any rights under Section 16.01.
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ARTICLE 17
REMEDIES
SECTION 17.01. OWNER'S RIGHT OF RE-ENTRY AND RIGHT TO RELET:
If Tenant shall default in the payment when due of any installment of Fixed Rent
or in the payment when due of any increase in the fixed Rent or any additional
rent, or if this Lease and the Demised Term shall expire and come to an end as
provided in Article 16:
(A) Owner and its agents and servants may
immediately, or at any time after such default or after the
date upon which this Lease and the Demised Term shall expire
and come to an end, re-enter the Demised Premises or any part
thereof, without notice, either by summary proceedings or by
any other applicable action or proceeding, or by force or
otherwise which is permitted by law (without being liable to
indictment, prosecution or damages therefor), and may
repossess the Demised Premises and dispossess Tenant and any
other persons from the Demised Premises and remove any and all
of their property and effects from the Demised Premises; and
(B) Owner, at Owner's option, may relet the whole or
any part or parts of the Demised Premises, from time to time,
either in the name of Owner or otherwise, to such tenant or
tenants, for such term or terms ending before, on or after the
Expiration Date, at such rental or rentals and upon such other
conditions, which may include concessions and free rent
periods, as Owner, in its sole discretion, may determine.
Owner shall have no obligation to relet the Demised Premises
or any part thereof and shall in no event be liable for
refusal or failure to relet the Demised Premises or any part
thereof, or, in the event of any such reletting, for refusal
or failure to collect any rent due upon any such reletting,
and no such refusal or failure shall operate to relieve Tenant
of any liability under this Lease or otherwise to affect any
such liability; Owner, at Owner's option, may make such
repairs, replacements, alterations, additions, improvements,
decorations and other physical changes in and to the Demised
Premises as Owner, in its sole discretion, considers advisable
or necessary in connection with any such reletting or proposed
reletting, without relieving Tenant of any liability under
this Lease or otherwise affecting any such liability.
SECTION 17.02. WAIVER OF RIGHT TO REDEEM, ETC.: Tenant hereby
waives the service of any notice of intention to re-enter or to institute legal
proceedings to that end which may otherwise be required to be given under any
present or future law. Tenant, on its own behalf and on behalf of all persons
claiming through or under Tenant, including all creditors, does further hereby
waive any and all rights which Tenant and all such persons might otherwise have
under any present or future law to redeem the Demised Premises, or to re-enter
or repossess the Demised Premises, or to restore the operation of this Lease,
after (i) Tenant shall have been dispossessed by a judgment or by warrant of any
court or judge, or (ii) any lawful re-entry by Owner, or (iii) any expiration or
termination of this Lease and the Demised Term, whether such dispossess,
re-entry, expiration or termination shall be by operation of law or pursuant to
the provisions of this Lease. The words "re-enter", "re-entry" and "re-entered"
as used in this Lease shall not be deemed to be restricted to their technical
legal
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meanings. In the event of a breach or threatened breach by Tenant, or any
persons claiming through or under Tenant, of any term, covenant or condition of
this Lease on Tenant's part to be observed or performed, Owner shall have the
right to enjoin such breach and the right to invoke any other remedy allowed by
law or in equity as if re-entry, summary proceedings and other special remedies
were not provided in this Lease for such breach. The right to invoke the
remedies hereinbefore set forth in this Lease is cumulative and shall not
preclude Owner from invoking any other remedy allowed by law or in equity. Owner
agrees that the first sentence of this Section 17.02 shall not be deemed a
waiver of Tenant's right to be served with any notice of petition and petition
in any summary proceedings under the provisions of the Real Property Actions and
Proceedings Law of the State of New York and any successor law of like import
then in force.
ARTICLE 18
DAMAGES
SECTION 18.01. AMOUNT OF OWNER'S DAMAGES: If this Lease and
the Demised Term shall expire and come to an end as provided in Article 16, or
by or under any summary proceeding or any other action or proceeding, or if
Owner shall re-enter the Demised Premises as provided in Article 17, or by or
under any summary proceeding or any other action or proceeding, then, in any of
said events:
(A) Tenant shall pay to Owner all Fixed Rent,
additional rent and other charges payable under this Lease by
Tenant to Owner to the date upon which this Lease and the
Demised Term shall have expired and come to an end or to the
date of re-entry upon the Demised Premises by Owner, as the
case may be; and
(B) Tenant shall also be liable for and shall pay to
Owner, as damages, any deficiency (referred to as a
"Deficiency") between the Fixed Rent reserved in this Lease
for the period which otherwise would have constituted the
unexpired portion of the Demised Term and the net amount, if
any, of rents collected under any reletting effected pursuant
to the provisions of Section 17.01 for any part of such period
(first deducting from the rents collected under any such
reletting all of Owner's expenses in connection with the
termination of this Lease or Owner's re-entry upon the Demised
Premises and with such reletting including, but not limited
to, all repossession costs, brokerage commissions, legal
expenses, attorneys' fees, alteration costs and other expenses
of preparing the Demised Premises for such reletting). Any
such Deficiency shall be paid in monthly installments by
Tenant on the days specified in this Lease for payment of
installments of Fixed Rent. Owner shall be entitled to recover
from Tenant each monthly Deficiency as the same shall arise,
and no suit to collect the amount of the Deficiency for any
month shall prejudice Owner's right to collect the Deficiency
for any subsequent month by a similar proceeding. Solely for
the purposes of this Subsection (b), the term "Fixed Rent"
shall mean the Fixed Rent in effect immediately prior to the
date upon which this Lease and the Demised Term shall have
expired and come to
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an end, or the date of re-entry upon the Demised Premises by
Owner, as the case may be, adjusted, from time to time, to
reflect any increases which would have been payable pursuant
to any of the provisions of this Lease including, but not
limited to, the provisions of Article 23 of this Lease if the
term hereof had not been terminated; and
(C) At any time after the Demised Term shall have
expired and come to an end or Owner shall have re-entered upon
the Demised Premises, as the case may be, as a result of any
Event of Default set forth in Subsection (c) or (d) of Section
16.01 whether or not Owner shall have collected any monthly
Deficiencies as aforesaid, Owner shall be entitled to recover
from Tenant, and Tenant shall pay to Owner, on demand, as and
for liquidated and agreed final damages, a sum equal to the
amount by which the Fixed Rent reserved in this Lease for the
period which otherwise would have constituted the unexpired
portion of the Demised Term exceeds the then fair and
reasonable rental value of the Demised Premises for the same
period, both discounted to present worth at the rate of eight
(8%) percent per annum. If, before presentation of proof of
such liquidated damages to any court, commission or tribunal,
the Demised Premises, or any part thereof, shall have been
relet by Owner for the period which otherwise would have
constituted the unexpired portion of the Demised Term, or any
part thereof, the amount of rent reserved upon such reletting
shall be deemed, prima facie, to be the fair and reasonable
rental value for the part or the whole of the Demised Premises
so relet during the term of the reletting. Solely for the
purposes of this Subsection (c), the term "Fixed Rent" shall
mean the Fixed Rent in effect immediately prior to the date
upon which this Lease and the Demised Term shall have expired
and come to an end, or the date of re-entry upon the Demised
Premises by Owner, as the case may be, adjusted to reflect any
increases pursuant to the provisions of Article 23 for the
Escalation Year and Tax Escalation Year immediately preceding
such event.
SECTION 18.02. RENTS UNDER RELETTING: If the Demised Premises,
or any part thereof, shall be relet together with other space in the Building,
the rents collected or reserved under any such reletting and the expenses of any
such reletting shall be equitably apportioned for the purposes of this Article
18. Tenant shall in no event be entitled to any rents collected or payable under
any reletting, whether or not such rents shall exceed the Fixed Rent reserved in
this Lease. Nothing contained in Articles 16, 17 or this Article shall be deemed
to limit or preclude the recovery by Owner from Tenant of the maximum amount
allowed to be obtained as damages by any statute or rule of law, or of any sums
or damages to which Owner may be entitled in addition to the damages set forth
in Section 18.01.
ARTICLE 19
FEES AND EXPENSES; INDEMNITY
SECTION 19.01. OWNER'S RIGHT TO CURE TENANT'S DEFAULT: If
Tenant shall default in the observance or performance of any term, covenant or
condition of this Lease on Tenant's part to be observed or performed, Owner, at
any time thereafter and without notice in
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cases of emergency and in other cases after the expiration of thirty (30) days
after notice by Owner to Tenant thereof, may remedy such default for Tenant's
account and at Tenant's expense, without thereby waiving any other rights or
remedies of Owner with respect to such default.
SECTION 19.02. TENANT'S INDEMNITY AND LIABILITY INSURANCE
OBLIGATIONS: A. Tenant agrees to indemnify and save Owner and "Owner's
Indemnitees" (as hereinafter defined) harmless of and from all loss, cost,
liability, damage and expense including, but not limited to, reasonable counsel
fees, penalties and fines incurred in connection with or arising from (i) any
default by Tenant in the observance or performance of any of the terms,
covenants or conditions of this Lease on Tenant's part to be observed or
performed, or (ii) the breach or failure of any representation or warranty made
by Tenant in this Lease, or (iii) the use or occupancy or manner of use or
occupancy of the Demised Premises by Tenant or any person claiming through or
under Tenant, or (iv) any acts, omissions or negligence of Tenant or any such
person, or the contractors, agents, servants, employees, visitors or licensees
of Tenant or any such person, in or about the Demised Premises or the Building
either prior to, during, or after the expiration of, the Demised Term,
including, but not limited to, any acts, omissions or negligence in the making
or performing of any Alterations. Tenant further agrees to indemnify and save
harmless Owner and Owner's Indemnitees of and from all loss, cost, liability,
damage and expense, including, but not limited to, reasonable counsel fees and
disbursements incurred in connection with or arising from any claims by any
persons by reason of injury to persons or damage to property occasioned by any
use, occupancy, act, omission or negligence referred to in the preceding
sentence. "Owner's Indemnitees" shall mean the Owner, the shareholders or the
partners comprising Owner and its and their partners and shareholders, officers,
directors, employees, agents (including, without limitation, any leasing and
managing agents) and contractors together with the lessor under any Superior
Lease and the holder of any Mortgage. If any action or proceeding shall be
brought against Owner or Owner's Indemnitees based upon any such claim and if
Tenant, upon notice from Owner, shall cause such action or proceeding to be
defended at Tenant's expense by counsel acting for Tenant's insurance carriers
in connection with such defense or by other counsel reasonably satisfactory to
Owner, without any disclaimer of liability by Tenant or such insurance carriers
in connection with such claim, Tenant shall not be required to indemnify Owner
and Owner's Indemnitees for counsel fees in connection with such action or
proceeding.
B. Throughout the Demised Term Tenant shall maintain
comprehensive public liability and water legal liability insurance against any
claims by reason of personal injury, death and property damage occurring in or
about the Demised Premises covering, without limitation, the operation of any
private air conditioning equipment and any private elevators, escalators or
conveyors in or serving the Demised Premises or any part thereof, whether
installed by Owner, Tenant or others, and shall furnish to Owner duplicate
original policies of such insurance at least ten (10) days prior to the
Commencement Date and at least ten (10) days prior to the expiration of the term
of any such policy previously furnished by Tenant, in which policies Owner and
Owner's Indemnitees shall be named as parties insured, which policies shall be
issued by companies, and shall be in form and amounts, satisfactory to Owner.
SECTION 19.03. PAYMENTS: Tenant shall pay to Owner, within
fifteen (15) days next following rendition by Owner to Tenant of bills or
statements therefor: (i) sums
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equal to all expenditures made and monetary obligations incurred by Owner
including, but not limited to, expenditures made and obligations incurred for
reasonable counsel fees and disbursements, in connection with the remedying by
Owner, for Tenant's account pursuant to the provisions of Section 19.01, of any
default of Tenant, and (ii) sums equal to all losses, costs, liabilities,
damages and expenses referred to in Section 19.02, and (iii) sums equal to all
expenditures made and monetary obligations incurred by Owner including, but not
limited to, expenditures made and obligations incurred for reasonable counsel
fees and disbursements, in collecting or attempting to collect the Fixed Rent,
any additional rent or any other sum of money accruing under this Lease or in
enforcing or attempting to enforce any rights of Owner under this Lease or
pursuant to law, whether by the institution and prosecution of summary
proceedings or otherwise, and (iv) all other sums of money (other than Fixed
Rent) accruing from Tenant to Owner under the provisions of this Lease. Any sum
of money (other than Fixed Rent) accruing from Tenant to Owner pursuant to any
provision of this Lease including, but not limited to, the provisions of
Addendum A, whether prior to or after the Commencement Date, may, at Owner's
option, be deemed additional rent, and Owner shall have the same remedies for
Tenant's failure to pay any item of additional rent when due as for Tenant's
failure to pay any installment of Fixed Rent when due. Tenant's obligations
under this Article shall survive the expiration or sooner termination of the
Demised Term.
SECTION 19.04. TENANT'S LATE PAYMENTS - LATE CHARGES: If
Tenant shall fail to make payment of any installment of Fixed Rent or any
increase in the Fixed Rent or any additional rent within ten (10) days after the
date when such payment is due after more than two (2) occasions in any calendar
year, Tenant shall pay to Owner, in addition to such installment of Fixed Rent
or such increase in the Fixed Rent or such additional rent, as the case may be,
as a late charge and as additional rent, a sum equal to two (2%) percent per
annum above the then current prime rate (as the term "prime rate" is defined in
Section 31.03) charged by Chemical Bank or its successor of the amount unpaid
computed from the date such payment was due to and including the date of
payment.
SECTION 19.05. Owner agrees to indemnify and save Tenant
harmless of and from all loss, cost, liability, damage and expense, including,
but not limited to, reasonable counsel fees, penalties and fines incurred in
connection with or arising from (i) any default by Owner in the performance or
observance of any of the terms, covenants or conditions of this Lease on Owner's
part to be observed or performed, or (ii) any acts, omissions or negligence of
Owner or its employees, agents, contractors or servants in or about the Demised
Premises or the Building either prior to, during, or after, the expiration of
the Demised Term. Owner further agrees to indemnify and save harmless Tenant and
its agents of and from all loss, cost, liability, damage, and expense,
including, but not limited to, reasonable counsel fees incurred in connection
with or arising from any claims by any persons or damage to property occasioned
by any act, omission or negligence referred to in the preceding sentence. If any
action or proceeding shall be brought against Tenant or Tenant's agents based
upon any such claim and if Owner, upon notice from Tenant, shall cause such
action or proceeding to be defended at Owner's expense by counsel acting for
Owner's insurance carriers in connection with such defense or by other counsel
reasonably satisfactory to Tenant, without any disclaimer of liability by Owner
in connection with such claim, Owner shall not be required to indemnify Tenant
or Tenant's agents for counsel fees in connection with such action or
proceeding.
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SECTION 19.06. Owner shall pay to Tenant, within five (5) days
next following rendition by Tenant to Owner of statements therefor, or shall
credit Tenant, at Owner's election, against the next accruing monthly
installments of Fixed Rent, sums equal to all loss, costs, liabilities, damages
and expenses referred to in Section 19.05. Owner's obligations under this
Article shall survive the expiration or sooner termination of the Demised Term.
ARTICLE 20
ENTIRE AGREEMENT
SECTION 20.01. ENTIRE AGREEMENT: This Lease contains the
entire agreement between the parties and all prior negotiations and agreements
are merged in this Lease. Neither Owner nor Owner's agents have made any
representations or warranties with respect to the Demised Premises, the
Building, the Real Property or this Lease except as expressly set forth in this
Lease and no rights, easements or licenses are or shall be acquired by Tenant by
implication or otherwise unless expressly set forth in this Lease. This Lease
may not be changed, modified or discharged, in whole or in part, orally and no
executory agreement shall be effective to chant modify or discharge, in whole or
in part, this Lease or any provisions of this Lease, unless such agreement is a
forth in a written instrument executed by the party against whom enforcement of
the change, modification or discharge is sought. All references in this Lease to
the consent or approval of Owner shall be deemed to mean the written consent of
Owner, or the written approval of Owner, as the case may be, and no consent or
approval of Owner shall be effective for any purpose unless such consent or
approval is set forth in a written instrument executed by Owner.
ARTICLE 21
END OF TERM
SECTION 21.01. END OF TERM: On the date upon which the Demised
Term shall expire and come to an end, whether pursuant to any of the provisions
of this Lease or by operation of law, and whether or prior to the Expiration
Date, Tenant, at Tenant's sole cost and expense, (i) shall quit and surrender
the Demised Premises to Owner, broom clean and in good order and condition,
ordinary wear excepted, and (ii) shall remove all of Tenant's Personal Property
and all other property and effects of Tenant and all persons claiming through or
under Tenant (including, but not limited to, all telecommunications facilities)
from the Demised Premises and the Building, and (iii) shall repair all damage to
the Demised Premises and the Building occasioned by such removal. Owner shall
have the right to retain any property and effects which shall remain in the
Demised Premises after fifteen (15) days following the giving of a notice by
Owner to Tenant requesting such property be removed, which notice may be given
at any time after the expiration or sooner termination of the Demised Term, and
any net proceeds from the sale thereof, without waiving Owner's rights with
respect to any default by Tenant under the foregoing provisions of this Section.
Tenant expressly waives, for itself and for any person claiming through or under
Tenant, any rights which Tenant or any such person may have under the provisions
of Section 2201 of the New
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York Civil Practice Law and Rules and of any successor law of like import then
in force, in connection with any holdover summary proceedings which Owner may
institute to enforce the foregoing provisions of this Article. If said date upon
which the Demised Term shall expire and come to an end shall fall on a Sunday or
holiday, then Tenant's obligations under the first sentence of this Section
shall be performed on or prior to the Saturday or business day immediately
preceding such Sunday or holiday. Tenant's obligations under this Section shall
survive the expiration or sooner termination of the Demised Term.
ARTICLE 22
QUIET ENJOYMENT
SECTION 22.01. QUIET ENJOYMENT: Owner covenants and agrees
with Tenant that upon Tenant paying the Fixed Rent and additional rent reserved
in this Lease and observing and performing all of the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the Demised Premises during the Demised Term,
subject, however, to the terms, covenants and conditions of this Lease
including, but not limited to, the provisions of Section 37.01, and subject to
the Superior Lease and the Mortgage referred to in Section 7.01.
ARTICLE 23
TAX PAYMENTS AND OPERATING ESCALATION
SECTION 23.01. DEFINITIONS: In the determination of any
increase in the Fixed Rent under the provisions of this Article, Owner and
Tenant agree that the following terms shall have the following meanings:
A. The term "Tax Escalation Year" shall mean each fiscal year
commencing July 1st and ending on the following June 30th which shall include
any part of the Demised Term.
B. The term "Escalation Year" shall mean each calendar year
which shall include any part of the Demised Term.
C. The term "Taxes" shall be deemed to mean a sum equal to the
aggregate of: (i) the product determined by multiplying (a) the then applicable
full New York City real estate tax rate in effect with respect to the Borough of
Manhattan by (b) the then applicable assessed valuation of the Real Property (as
the same may be abated pursuant to the ICIP Program ([as hereinafter defined])
plus (ii) amounts assessed by any business improvement district in which the
Real Property is located plus (iii) any other assessments, special or otherwise,
upon or with respect to the Real Property imposed by the City or Country of New
York or any other taxing authority. If, due to any change in the method of
taxation, any franchise, income, profit, sales, rental, use and occupancy or
other tax or payments in lieu of any such taxes shall be substituted for, or
levied against Owner or any owner of the
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Building or the Real Property, in lieu of any real estate taxes or assessments
upon or with respect to the Real Property, such tax or payments in lieu of any
such taxes shall be included in the term Taxes for the purposes of this Article.
Notwithstanding anything to the contrary set forth in this Lease (including, but
not limited to, the provisions of Section 23.02) Taxes shall not include any
sums or amounts unless Owner is required to pay a corresponding sum or amount to
the appropriate taxing authority, business improvement district, tenant (as in
connection with payments or rent credits given or granted in connection with a
so called Pilot Program or the Tax Abatement Program [as hereinafter defined])
condominium owner or other bona fide person, which payments may be made either
by direct payments or direct credits granted to the appropriate taxing
authority, business improvement district, condominium owner, tenant or other
bona fide person or otherwise, it being the intention of the parties that Taxes
shall include only the aggregate amounts of money which Owner is obligated to
pay or credit to bona fide others in connection with any impositions, or sums
directly or indirectly in lieu thereof, which are levied or imposed against the
Real Property.
D. The term "Demised Premises Area" shall mean 13,319 square
feet.
E. The term "Building Area" shall mean 398,537 square feet. In
the event that at any time during the Demised Term Owner increases the "Building
Area" for any other tenant for the purposes of escalation then the "Building
Area" set forth in this Lease, automatically, shall be deemed increased to the
same amount as of the date of such increase for such other tenant.
F. The term "Tenant's Proportionate Share" shall mean the
fraction, the denominator of which is the Building Area and the numerator of
which is the Demised Premises Area.
G. (1) The term "Operating Expenses" shall, subject to the
provisions of Paragraph (2) of this Subsection 23.01.G, mean the aggregate
reasonable cost and expense actually incurred by Owner in the operation,
maintenance, management and security of the Real Property and any plazas,
sidewalks and curbs adjacent thereto including, without limitation, the cost and
expense of the following:
(a) salaries, wages, medical, surgical and general
welfare and other so-called "fringe" benefits (including group insurance and
retirement benefits) for employees (including, but not limited to, employees who
provide twenty-four (24) hour services, seven (7) days per week throughout the
year) of Owner or any contractor of Owner engaged in the cleaning, operation,
maintenance or management of the Real Property, or engaged for security purposes
and/or for receiving or transmitting deliveries to and from the Building, and
payroll taxes and workmen's compensation insurance premiums relating thereto,
(b) gas, steam, water and sewer rental,
(c) thirty-five (35%) percent of all electrical costs
incurred in the of the Building, provided, however, in the event that Owner
discontinues the redistribution or furnishing of electrical energy to the
tenants and occupants of the Building, then the cost and expense incurred by
Owner
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for electricity shall thereafter be deemed to be one hundred
(100%) percent of (i) the total cost and expense to Owner of
purchasing electricity for the Building less (ii) any
reimbursement to Owner by the tenants in the Building for the
payment for the Floor HVAC Units and the Floor Public Light
and Power (as said terms are defined in Section 29.05),
(d) utility taxes,
(e) rubbish removal,
(f) fire, casualty, liability, rent and
other insurance carried by Owner,
(g) repairs, repainting, replacement,
maintenance of grounds, and Included Improvements (as provided
in Paragraph (2) of this Subsection 23.01.G),
(h) Building supplies,
(i) uniforms and cleaning thereof,
(j) snow removal,
(k) window cleaning,
(l) service contracts with independent
contractors for any of the foregoing (including, but not
limited to, elevator, heating, air conditioning, ventilating,
sprinkler system, fire alarm and telecommunication equipment
maintenance),
(m) management fees (whether or not paid to
any person, firm or corporation having an interest in or under
common ownership with Owner or any of the persons, firms or
corporations comprising Owner) in the amount of one ($1.00)
dollar per rentable square foot of the Building Area in the
first Escalation Year which amount for management fees shall
increase in each Escalation Year subsequent to the first
Escalation Year by the same percentage of increase as the
percentage of increase in the aggregate of all other Operating
Expenses,
(n) legal fees and disbursements and other
expenses (excluding, however, legal fees and expenses incurred
in connection with any application or proceeding brought for
reduction of the assessed valuation of the Real Property or
any part thereof or legal fees and expenses incurred in
landlord/tenant matters),
(o) auditing fees,
(p) deleted,
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(q) all costs of compliance under the
provisions of any present or future Superior Lease other than
the payment of rental and impositions thereunder and increases
in the basic rent under such leases as a result of adjustments
in such basic rent, and
(r) all other costs and expenses incurred in
connection with the operation, maintenance, management and
security of the Real Property, and any plazas, sidewalks and
curbs adjacent thereto.
(2) The cost and expense of the following
shall be excluded from the calculation of operating expenses:
(a) leasing commissions and advertising and
promotional expenses;
(b) executives' salaries above the grade of
building manager and superintendent;
(c) capital improvements and replacements
which under general accepted accounting principles and
practice would be classified as capital expenditures, except
the cost and expense of any improvement, alteration,
replacement or installation which is either (i) required by
any Legal Requirement, or (ii) designed, in Owner's reasonable
judgment, to result in savings or reductions in Operating
Expenses or (iii) designed, in Owner's reasonable judgment, to
benefit the tenants of the Building (such improvements,
alterations, replacements and installations are referred to as
"Included Improvements"); the cost and expense of Included
Improvements whenever made shall be included in Operating
Expenses for any Escalation Year to the extent of (x) the
annual amortization or depreciation of the cost and expense to
Owner of such Included Improvements, as amortized on a
straight line basis over fifteen (15) years allocable to such
Escalation Year plus (y) an annual charge for interest upon
the unamortized or undepreciated portions of such cost and
expense at the average prime rate during the Escalation Year
in question (provided, however, with respect to the Included
Improvements referred to in (ii), the amount of such Included
Improvements included in Operating Expenses for any such
Escalation Year, inclusive of such charge for interest for
such Year allocable to such Included Improvement, shall not
exceed the amount of such savings or reductions for such
Escalation Year unless such savings or reductions in Operating
Expenses for prior Escalation Years exceeded, in the
aggregate, the amounts, inclusive of interest, paid by Tenant
to Owner with respect to such Included Improvements for such
prior Escalation Years (any such excess is referred to as a
"Shortfall"), in which event the amount of such Included
Improvements inclusive of interest included in Operating
Expenses for such Escalation Year shall not exceed the total
of the amount of such savings or reductions in Operating
Expenses for such Escalation Year plus such Shortfall as
aforesaid;
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(d) any other item which under generally
accepted accounting principles and practice would not be
regarded as an operating, maintenance or management expense;
(e) any item for which Owner is compensated
through proceeds of insurance;
(f) any specific compensation which Owner
receives from any tenant for services rendered to such tenant
by Owner above and beyond those services generally rendered by
Owner to tenants in the Building without specific compensation
therefor; and
(g) sixty-five (65%) percent of all
electrical costs incurred in the operation of the Building,
provided, however, in the event that Owner discontinues the
redistribution or furnishing of electrical energy to the
tenants and occupants of the Building, then the aforesaid
exclusion of sixty-five (65%) percent of such electrical costs
shall not apply;
(h) costs incurred in connection with the
original construction of the Building or in connection with
any major change in the Building, such as adding or deleting
floors which under generally accepted accounting principles
consistently applied are properly classified as capital
expenditure;
(i) deleted;
(j) depreciation or amortization;
(k) interest and principal payments on
mortgages and other debt costs, if any;
(l) costs of correcting defects in or
inadequacy of the design or construction of the Building;
(m) expenses directly resulting from the
negligence of the Owner, its agents, servants or employees or
another tenant;
(n) legal fees, space planners' fees, real
estate brokers' leasing commissions, accountants, consultants,
other third party experts and advertising expenses incurred in
connection with the original development or original leasing
of the Building or current or future leasing of the Building;
(o) costs for which Owner is reimbursed by
any tenant or occupant of the Building or by insurance by its
carrier or any tenant's carrier or by anyone else (excluding
any reimbursement from tenants pursuant to additional rent or
rent escalation provisions in the nature of this Article 23);
(p) any bad debt loss, rent loss, or
reserves for bad debts or rent loss;
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(q) costs associated with the operation of
the business of the partnership or entity which constitutes
the Owner, as the same are distinguished from the costs of
operation of the Building, including partnership accounting
and legal matters, costs of defending any lawsuits with any
mortgagee (except as the actions of Tenant may be in issue),
costs of selling, syndicating, financing, mortgaging or
hypothecating any of Owner's interest in the Building, costs
(including attorney's fees and costs of settlement judgments
and payments in lieu thereof) arising from the claims,
disputes or potential disputes in connection with potential or
actual claims, litigation or arbitrations pertaining to Owner
and/or the Building and/or the site upon which the Building is
situated;
(r) the wages and benefits of any executive
or administrative employee above building manager or
supervisor or any non-executive employee to the extent it does
not devote substantially all of his or her time to the
Building;
(s) fines, penalties and interest;
(t) amounts paid by Owner under any ground
lease;
(u) any recalculation of or additional
operating costs actually incurred more than two (2) years
prior to the year in which Owner proposes that such costs be
included;
(v) costs incurred in the removal,
containment, encapsulation, or disposal of or repair or
cleaning of areas affected by asbestos or other substances
installed by Owner in the Building which, at the time of such
installation, were deemed by any applicable federal, state or
municipal law, order, rule or regulation to be hazardous to
health or the environment and which were installed in
violation of law;
(w) costs incurred by Owner with respect to
goods and services (including utilities sold and supplied to
tenants and occupants of the Building) to the extent that
Owner would be entitled to reimbursement for such costs if
incurred by Tenant pursuant to this lease;
(x) costs, including permit, license and
inspection costs, incurred with respect to the installation of
tenant improvements made for new tenants in the Building or
incurred in renovating or otherwise improving, decorating,
painting or redecorating vacant space for tenants or other
occupants of the Building except for such costs which are
repairs which would have been made in the absence of such
leasing to such new tenants;
(y) Expenses in connection with services or
other benefits which are not provided to Tenant or for which
Tenant is charged directly but which are provided to another
tenant or occupant of the Building without a separate charge;
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(z) Overhead and profit increment paid to
Owner or to subsidiaries or affiliates of Owner for services
in the Building to the extent the same exceeds the costs of
such services rendered by unaffiliated third parties on a
competitive basis;
(aa) any compensation paid to clerks,
attendants or other persons in commercial concessions operated
by Owner;
(bb) rentals and other related expenses
incurred in leasing air conditioning systems, elevators or
other equipment ordinarily considered to be a capital nature
if purchased subject to subparagraph "c" with respect to
Included Improvements;
(cc) all items and services for which Tenant
or any other tenant in the Building reimburses Owner or which
Owner provides selectively to one or more tenants (other than
Tenant) without reimbursement;
(dd) electric power costs for which any
other tenant directly contracts with the local public service
company and pays therefor;
(ee) costs arising from Owner's political or
charitable contributions;
(ff) costs, other than those incurred in
ordinary maintenance, for sculpture, paintings or other
objects of art;
(gg) tax penalties incurred as a result of
Owner's negligence, inability or unwillingness to make
payments when due;
(hh) costs arising from the gross negligence
or fault of Owner or its agents, or any vendors, contractors,
or providers of materials or services selected or engaged by
Owner or its agents including, without limitation, the
selection of building materials;
(ii) Owner's general corporate overhead and
general and administrative expenses;
(jj) costs incurred by Owner due to the
violation by Owner or any tenant of the terms and conditions
of any lease of space in the Building;
(kk) the cost of any work or services
performed or other expenses incurred in connection with
installing, operating and maintaining any specialty service or
facility other than Common Building Facilities (e.g., an
observatory, broadcasting facility or any luncheon, athletic
or recreational club), provided, however, the exclusion set
forth in this subdivision (kk) shall not apply to the cost of
any building services furnished to an area of space leased to
another tenant and used by such tenant for such purposes for
itself alone (the term "Common Building Facilities" shall mean
all of the common
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facilities in or around the Building designed and intended for
use by the tenants of the Building in common with Owner and
each other, including, but not limited to, hallways, fire
stairs, elevator shaftways, voice, data and signal equipment,
if any, telephone and electric closets, truckdocks, public
restrooms, service areas, lobbies, landscaped areas, and all
other common and service areas of the Real Property and
Building).
H. The term "Base Operating Expenses" shall mean the sum of
$2,391,222.00. In the event that during the calendar year 1995 Owner enters into
a lease with any other non-retail space tenants in which Owner increases the sum
of Base Operating Expenses for any such other non-retail space tenant for the
purposes of escalation, then Base Operating Expenses set forth in this Lease,
automatically, shall be deemed increased to the same amount as of the date of
such increase for such other non-retail space tenant.
I. The term "Owner's Tax Statement" shall mean an instrument
containing a computation of any increase in the Fixed Rent in reasonable detail
pursuant to the provisions of Section 23.02A. of this Article.
J. The term "Owner's Operating Expense Statements" shall mean
an instrument in reasonable detail containing a computation of any increase in
the Fixed Rent pursuant to the provisions of Section 23.04 of this Article.
K. The term "Monthly Escalation Installment" shall mean a sum
equal to one-twelfth (1/12th) of the increase in the Fixed Rent payable pursuant
to the provisions of Subsection 23.04 A. for the Escalation Year with respect to
which Owner has most recently rendered an Owner's Operating Expense Statement,
appropriately adjusted to reflect (i) in the event such Escalation Year is a
partial calendar year, the increase in the Fixed Rent which would have been
payable for such Escalation Year if it had been a full calendar year, and (ii)
the amount by which current Operating Expenses as reasonably estimated by Owner
exceed Operating Expenses as reflected in such Owner's Operating Expense
Statement, and (iii) any net credit balance to which Tenant may be entitled
pursuant to the provisions of Subsection 23.05 C.
L. The term "Monthly Escalation Installment Notice" shall mean
a notice given by Owner to Tenant which sets forth the current Monthly
Escalation Installment; such Notice may be contained in a regular monthly rent
xxxx, in an Owner's Operating Expense Statement, or otherwise, and may be given
from time to time, at Owner's election.
M. Owner has applied for a certificate of eligibility from the
Department of Finance of the City of New York determining that Owner is eligible
to apply for exemption from tax payments for the Real Property pursuant to the
provisions of Section 11-256 through 11-267 (the "ICIP Program") of the
Administrative Code of the City of New York and the regulations promulgated
pursuant to the ICIP Program. Any such tax exemption for the Real Property is
referred to as "Tax Exemption" and the period of such Tax Exemption is referred
to as the "Tax Exemption Period." Owner agrees that Tenant shall not be required
to (a) pay Taxes or charges which become due because of the willful neglect or
fraud by Owner in connection with the ICIP Program or (b) otherwise relieve or
indemnify Owner from any personal liability arising under the ICIP Program,
except where imposition of such Taxes, charges or liability is occasioned by
actions of Tenant in violation of this Lease. Tenant
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agrees to report to Owner, as often as is necessary under such regulations, the
number of workers engaged in employment in the Demised Premises, the nature of
each worker's employment and the residency of each worker and to provide access
to the Demised Premises by employees and agents of the Department of Finance of
the City of New York at all reasonable times at the request of Owner. Tenant
represents to the Owner that, with n the seven (7) years immediately preceding
the date of this Lease, Tenant has not been adjudged by a court of competent
jurisdiction to have been guilty of (x) an act, with respect to a building,
which is made a crime under the provisions of Article 150 of the Penal Law of
the State of New York or any similar law of another state, or (y) any act made a
crime or violation by the provisions of Section 235 of the Real Property Law of
the State of New York, nor is any charge for a violation of such laws presently
pending against Tenant. Upon request of Owner, from time to time, Tenant agrees
to update said representation when required because of the ICIP Program and
regulations thereunder. Tenant further agrees to cooperate with Owner in
compliance with such ICIP Program and regulations to aid Owner in obtaining and
maintaining the Tax Exemption and, if requested by Owner, to post a notice in a
conspicuous place in the Demised Premises and to publish a notice in a newspaper
of general circulation the City of New York, in such form as shall be prescribed
by the Department of Finance stating that persons having information concerning
any violation by Tenant of Section 235 of the Real Property Law or any Section
of Article 150 of the Penal Law or any similar law of another jurisdiction may
submit such information to the Department of Finance to be considered in
determining Owner's eligibility for benefits. Tenant acknowledges that its
obligations under the provisions of Subsection 23.02A. may be greater if Owner
fails to obtain a Tax Exemption, and agrees that Owner shall have no liability
to Tenant nor shall Tenant be entitled to any abatement or diminution of rent if
Owner fails to obtain a Tax Exemption.
N. Owner and Tenant acknowledge that Tenant may apply for a
certificate of abatement from the Department of Finance of the City of New York
pursuant to the provisions of Title 4 of the Real Property Law of the State of
New York Section 11-704(i) of the Administrative Code of the City of New York
(the "Tax Abatement Program"). Owner agrees, at no cost or expense to Owner, to
cooperate with Tenant in its efforts to procure a certificate of abatement
including, if necessary, and if Owner approves of its contents, co-signing
Tenant's application for a certificate of abatement. Pursuant to the Tax
Abatement Program, Owner hereby informs Tenant that:
"(1) an application for abatement of real property taxes
pursuant to this title will be made for the premises;
(2) the rent, including amount payable by the tenant for real
property taxes, will accurately reflect any abatement of real property taxes
granted pursuant to this title for the premises;
(3) at least ten dollars per square foot or thirty-five
dollars per square foot must be spent on improvements to the premises and the
common areas, the amount being dependent upon the length of the lease and
whether it is a new or a renewal lease; and
(4) all abatements granted with respect to a building pursuant
to this title will be revoked if, during the benefit period, real estate taxes
or water or sewer charges are unpaid for more than one year, unless such
delinquent amounts are paid as provided in subdivision four of section four
hundred ninety-nine-f of this title."
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Owner and Tenant acknowledge that the Tax Abatement Program (a
copy of which has been initialled by both Owner and Tenant) has not yet been
enacted into law by the New York State Legislature. It is the intention of the
parties, however, that Tenant shall receive at least the benefits of this
initial Tax Abatement Program even if it is not enacted into law or is enacted
into law with lesser benefits given to Tenant. Accordingly, Owner and Tenant
agree that in the event that (a) the initial Tax Abatement Program is not
enacted into law or (b) a substituted tax abatement program (the "Substituted
Program") is enacted into law providing lesser benefits than the initial Tax
Abatement Program then, in the event of (a) Tenant shall receive all the
benefits of the initial Tax Abatement Program, as if same had been enacted or
effective with respect to the Real Property (which would initially be
approximately $1.12 per rentable square foot based on an assessment of
$8,600,000.00) or in the event of (b) Tenant shall receive the difference
between the benefits accorded to Tenant by the initial Tax Abatement Program and
the lesser benefits accorded to Tenant by the Substituted Program, as the case
may be, which benefits to which Tenant is entitled pursuant to the provisions of
this sentence shall be given at the same time they would have accrued under the
initial Tax Abatement Program, by way of a rent credit, to be applied against
the next accruing monthly installments of Fixed Rent, or if there are an
insufficient number of monthly installments of Fixed Rent remaining, shall be
paid to Tenant after the Expiration Date. In the event of any dispute between
the parties as to the determination of any rent credit to which Tenant shall be
entitled pursuant to the foregoing provisions of this Section, such dispute
shall be determined by arbitration in New York City in the same manner as
provided under Article 36.
Tenant agrees that Owner shall have no liability to Tenant nor
shall Tenant be entitled to any abatement or diminution of rent if Tenant fails
to obtain a certificate of abatement under the Tax Abatement Program.
SECTION 23.02. TAXES: A. The Fixed Rent for each Tax
Escalation Year shall be increased by a sum equal to Tenant's Proportionate
Share of Taxes for such Tax Escalation Year.
B. Unless the Commencement Date shall occur on a July 1st, any
increase in the Fixed Rent pursuant to the provisions of Subsection A of this
Section 23.02 for the Tax Escalation Year in which the Commencement Date shall
occur shall be apportioned in that percentage which the number of days in the
period from the Commencement Date to June 30th of such Tax Escalation Year, both
inclusive, bears o the total number of days in such Tax Escalation Year. Unless
the Demised Term shall expire on a June 30th, any increase in the Fixed Rent
pursuant to the provisions of said Subsection A for the Tax Escalation Year in
which the date of the expiration of the Demised Term shall occur shall be
apportioned in that percentage which the number of days in the period from July
1st of such Tax Escalation Year to such date of expiration, both inclusive,
bears to the total number of days in such Tax Escalation Year.
SECTION 23.03. CALCULATION AND PAYMENT OF TAXES: A. Owner
shall render to Tenant, either in accordance with the provisions of Article 27
an Owner's Tax Statement or Statements with respect to each Tax Escalation Year,
either prior to or during such Tax Escalation Year. Owner's failure to render an
Owner's Tax Statement with respect to any Tax Escalation Year shall not
prejudice Owner's right to recover any sums due to Owner hereunder with respect
to such Tax Escalation Year, unless same is not rendered within two (2) years,
nor shall it deprive Tenant of any credit to which it otherwise might be
entitled to for any Tax
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Escalation Year pursuant to the provisions of Subsection B of this Section
23.03. Tenant acknowledges that under present law, Taxes are payable by Owner
(i) with respect to a fiscal year commencing July 1st and ending on the
following June 30th, and (ii) in two (2) installments, in advance, the first of
which is payable on July 1st, and the second and final payment of which is
payable on the following January 1st. Within twenty (20) days next following
rendition of the first Owner's Tax Statement which shows an increase in the
Fixed Rent for any Tax Escalation Year, Tenant shall pay to Owner one-half of
the amount of the increase shown upon such Owner's Tax Statement for such Tax
Escalation Year (including any apportionment pursuant to the provisions of
Subsection B of Section 23.02); and, subsequently, provided Owner shall have
rendered to Tenant an Owner's Tax Statement, Tenant shall pay to Owner not later
than thirty (30) days prior to the date on which the installment of Taxes is
required to be paid by Owner a sum equal to one half (1/2) of Tenant's
Proportionate Share of Taxes payable with respect to such Tax Escalation Year as
shown on such Owner's Tax Statement. Tenant further acknowledges that it is the
purpose and intent of this Section 23.03 to provide Owner with Tenant's
Proportionate Share of Taxes thirty (30) days prior to the time such installment
of Taxes is required to be paid by Owner without penalty or interest.
Accordingly, Tenant agrees if the number of such installments and/or the date of
payment thereof and/or the fiscal year used for the purpose of Taxes shall
change then (a) at the time that any such revised installment is payable by
Owner, Tenant shall pay to Owner the amount which shall provide Owner with
Tenant's Proportionate Share of Taxes applicable to the revised installment of
Taxes then required to be paid by Owner, and (b) this Article shall be
appropriately adjusted to reflect such change and the time for payment to Owner
of Tenant's Proportionate Share of Taxes as provided in this Article shall be
appropriately revised so that Owner shall always be provided with Tenant's
Proportionate Share of Taxes thirty (30) days prior to the installment of Taxes
required to be paid by Owner. Notwithstanding the foregoing provisions of this
Subsection A to the contrary, in the event the holder of any mortgage affecting
the Real Property shall require Owner to make monthly deposits on account of
real estate taxes, then this Article shall be appropriately adjusted to reflect
the requirement that Owner make monthly deposits on account of real estate taxes
so that Owner shall always be provided with one-twelfth (1/12th) of Tenant's
Proportionate Share of Taxes with respect to any Tax Escalation Year thirty (30)
days prior to the payment by Owner of such monthly deposits on account of real
estate taxes.
B. If, as a result of any application or proceeding brought by
or on behalf of Owner for reduction of the assessed valuation of the Real
Property there shall be a decrease in Taxes for any Tax Escalation Year with
respect to which Owner shall have previously rendered an Owner's Tax Statement,
the next monthly installment or installments of Fixed Rent following such
decrease shall include an adjustment of the Fixed Rent for such Tax Escalation
Year reflecting a credit to Tenant equal to the amount by which (i) the Fixed
Rent actually paid by Tenant with respect to such Tax Escalation Year (as
increased pursuant to the operation of the provisions of Subsection A of Section
23.02) shall exceed (ii) the Fixed Rent payable with respect to such Tax
Escalation Year (as increased pursuant to the operation of the provisions of
Subsection A of Section 23.02) based upon such reduction of the assessed
valuation.
SECTION 23.04. OPERATING EXPENSES: A. If Operating Expenses in
any Escalation Year shall be in such an amount as shall constitute an increase
above Base Operating Expenses, the Fixed Rent for such Escalation Year shall be
increased by a sum equal to Tenant's Proportionate Share of any such increase.
In the event that Base Operating
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Expenses shall be in excess of Operating Expenses in any Escalation Year, in no
event shall Tenant be entitled to any such excess and the Fixed Rent shall not
be reduced in any way.
B. Unless the Commencement Date shall occur on a January 1st,
any increase in the Fixed Rent pursuant to the provisions of Subsection A of
this Section 23.04 for the Escalation Year in which the Commencement Date shall
occur shall be apportioned in that percentage which the number of days in the
period from the Commencement Date to December 31st of such Escalation Year, both
dates inclusive, bears to the total number of days in such Escalation Year.
Unless the Demised Term shall expire on December 31st any increase in the Fixed
Rent pursuant to the provisions of Subsection A of this Section 23.04 for the
Escalation Year in which the date of the expiration of the Demised Term shall
occur shall be apportioned in that percentage which the number of days in the
period from January 1st of such Escalation Year to such date of expiration, both
dates inclusive, bears to the total number of days in such Escalation Year.
C. In the determination of any increase in the Fixed Rent
pursuant to the foregoing provisions of this Section 23.04, if the Building
shall not have been fully occupied during an Escalation Year, Operating Expenses
for such Escalation Year shall be equitably adjusted (by including such
additional expenses as Owner would have incurred) to the extent, if any,
required to reflect full occupancy.
SECTION 23.05. CALCULATION AND PAYMENT OF OPERATING EXPENSES:
A. Owner shall render to Tenant, either in accordance with the provisions of
Article 27 or by personal delivery at the Demised Premises, an Owner's Operating
Expense Statement with respect to each Escalation Year on or before the next
succeeding October 1st. Owner's failure to render an Owner's Operating Expense
Statement with respect to any Escalation Year shall not prejudice Owner's right
to recover any sums due to Owner hereunder with respect to such Escalation Year
if same is rendered within two (2) years.
B. Within twenty (20) days next following rendition of the
first Owner's Operating Expense Statement which shows an increase in the Fixed
Rent for any Escalation Year, Tenant shall pay to Owner the entire amount of
such increase. In order to provide for current payments on account of future
potential increases in the Fixed Rent which may be payable by Tenant pursuant to
the provisions of Subsection 23.04.A, Tenant shall also pay to Owner at such
time, provided Owner has given to Tenant a Monthly Escalation Installment
Notice, a sum equal to the product of (i) the Monthly Escalation Installment set
forth in such Notice multiplied by (ii) the number of months or partial months
which shall have elapsed between January 1st of the Escalation Year in which
such payment is made and the date of such payment, less any amounts theretofore
paid by Tenant to Owner on account of increases in the Fixed Rent for such
Escalation Year pursuant to the provisions of the penultimate sentence of this
Subsection 23.05.B; thereafter Tenant shall make payment of a Monthly Escalation
Installment throughout each month of the Demised Term. Monthly Escalation
Installments shall be added to and payable as part of each monthly installment
of Fixed Rent. Notwithstanding anything to the contrary contained in the
foregoing provisions of this Article, prior to the rendition of the first
Owner's Operating Expense Statement which shows an increase in the Fixed Rent
for any Escalation Year, Owner may render to Tenant a pro-forma Owner's
Operating Expense Statement containing a bona fide estimate of the increase in
the Fixed Rent for the Escalation Year in which the Commencement Date shall
occur and/or the subsequent Escalation Year. Following the rendition of such
pro-forma Owner's Operating
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Expense Statement, Tenant shall pay to Owner a sum equal to one twelfth (1/12th)
of the estimated increase in the Fixed Rent shown thereon for such Escalation
Year or Years multiplied by the number of months which may have elapsed between
the Commencement Date and the month in which such payment is made and thereafter
pay to Owner, on the first day of each month of the Demised Term (until the
rendition by Owner of the first Owner's Operating Expense Statement) a sum equal
to one twelfth (1/12th) of the increase in the Fixed Rent shown on such
pro-forma Owner's Operating Expense Statement. Any sums paid pursuant to the
provisions of the immediately preceding sentence shall be credited against the
sums required to be paid by Tenant to Owner pursuant to the Owner's Operating
Expense Statement for the first Escalation Year for which there is an increase
in the Fixed Rent pursuant to the provisions of Subsection A.
C. Following rendition of the first Owner's Operating Expense
Statement and each subsequent Owner's Operating Expense Statement a
reconciliation shall be made as follows: Tenant shall be debited with any
increase in the Fixed Rent shown on such Owner's Operating Expense Statement and
credited with the aggregate amount, if any, paid by Tenant in accordance with
the provisions of Subsection B of this Section on account of future increases in
the Fixed Rent pursuant to Subsection 23.04 A. which has not previously been
credited against increases in the Fixed Rent shown on Owner's Operating Expense
Statements. Tenant shall pay any net debit balance to Owner within fifteen (15)
days next following rendition by Owner, either in accordance with the provisions
of Article 27 or by personal delivery at the Demised Premises of an invoice for
such net debit balance; any net credit balance shall be applied as an adjustment
against the next accruing monthly installments of Fixed Rent.
SECTION 23.06. DISPUTE RESOLUTION: A. In the event of any
dispute between Owner and Tenant arising out of the application of the Operating
Expense provisions of this Article, such dispute shall be determined by
arbitration in New York City in accordance with the provisions of Article 36.
Notwithstanding any such dispute and submission to arbitration, or any dispute
with respect to the Tax Escalation provisions of this Article (which dispute
shall not be subject to arbitration but which can only be prosecuted by the
institution of legal proceedings by Tenant), any increase in the Fixed Rent
shown upon any Owner's Operating Expense Statement or any Monthly Escalation
Installment Notice or any Owner's Tax Statement shall be payable by Tenant
within the time limitation set forth in this Article. If the determination in
such arbitration or legal proceedings shall be adverse to Owner, any amount paid
by Tenant to Owner in excess of the amount determined to be properly payable
shall be credited against the next accruing installments of Fixed Rent due under
this Lease. However, if there are no such installments, such amounts shall be
paid by Owner to Tenant within thirty (30) days following such determination.
B. In the event Tenant disagrees with any computation or other
matter contained in any Owner's Operating Expense Statement or any Monthly
Escalation Installment Notice, Tenant shall have the right to give notice to
Owner within one hundred eighty (180) days next following rendition of such
Statement or Notice setting forth the particulars of such disagreement. If the
matter is not resolved within ninety (90) days next following the giving of such
notice by Tenant, it shall be deemed a dispute which either party may submit to
arbitration pursuant to the provisions of Subsection A of this Section. If (i)
Tenant does not give a timely notice to Owner in accordance with the foregoing
provisions of this Subsection disagreeing with any computation or other matter
contained in any Owner's Operating Expense
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Statement or any Monthly Escalation Installment Notice and setting forth the
particulars of such disagreement, or (ii) if any such timely notice shall have
been given by Tenant, the matter shall not have been resolved and neither party
shall have submitted the dispute to arbitration within ninety (90) days next
following the giving of such notice by Tenant, Tenant shall be deemed
conclusively to have accepted such Owner's Operating Expense Statement or
Monthly Escalation Installment Notice, as the case may be, and shall have no
further right to dispute the same.
SECTION 23.07. COLLECTION OF INCREASES IN FIXED RENT: The
obligations of Owner and Tenant under the provisions of this Article with
respect to any increase in the Fixed Rent, or any credit to which Tenant may be
entitled, shall survive the expiration or any sooner termination of the Demised
Term. All sums payable by Tenant under this Article shall be collectible by
Owner in the same manner as Fixed Rent.
ARTICLE 24
NO WAIVER
SECTION 24.01. OWNER'S TERMINATION NOT PREVENTED: Neither any
option granted to Tenant or Owner in this Lease or in any collateral instrument
to renew or extend the Demised Term, nor the exercise of any such option by
Tenant or Owner, as the case may be, shall prevent Owner or Tenant, as the case
may be, from exercising any option or right granted or reserved to such party in
this Lease or in any collateral instrument or which Owner or Tenant may have by
virtue of any law, to terminate this Lease and the Demised Term or any renewal
or extension of the Demised Term either during the original Demised Term or
during the renewed or extended term. Any termination of this Lease and the
Demised Term shall serve to terminate any such renewal or extension of the
Demised Term and any right of Tenant or Owner, as the case may be, to any such
renewal or extension, whether or not Tenant or Owner, as the case may be, shall
have exercised any such option to renew or extend the Demised Term. Any such
option or right on the part of Owner or Tenant to terminate this Lease shall
continue during any extension or renewal of the Demised Term. No option granted
to Tenant or Owner to renew or extend the Demised Term shall be deemed to give
Tenant or Owner any further option to renew or extend.
SECTION 24.02. NO TERMINATION BY TENANT/NO WAIVER: No act or
thing done by Owner or Owner's agents during the Demised Term shall constitute a
valid acceptance of a surrender of the Demised Premises or any remaining portion
of the Demised Term except a written instrument accepting such surrender,
executed by Owner. No employee of Owner or of Owner's agents shall have any
authority to accept the keys of the Demised Premises prior to the termination of
this Lease and the Demised Term, and the delivery of such keys to any such
employee shall not operate as a termination of this Lease or a surrender of the
Demised Premises; however, if Tenant desires to have Owner sublet the Demised
Premises for Tenant's account, Owner or Owner's agents are authorized to receive
said keys for such purposes without releasing Tenant from any of its obligations
under this Lease, and Tenant hereby relieves Owner of any liability (except for
Owner's negligence or improper acts or improper omissions) for loss of, or
damage to, any of Tenant's property or other effects in connection with such
subletting. The failure by either party to seek redress for breach or violation
of, or to insist upon the strict performance of, any term, covenant or condition
of this
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Lease on the other party's part to be observed or performed, shall not prevent a
subsequent act or omission which would have originally constituted a breach or
violation of any such term, covenant or condition from having all the force and
effect of an original breach or violation. The receipt by Owner of rent with
knowledge of the breach or violation by Tenant of any term, covenant or
condition of this Lease on Tenant's part to be observed or performed shall not
be deemed a waiver of such breach or violation. Owner's failure to enforce any
Building Rule against Tenant or against any other tenant or occupant of the
Building shall not be deemed a waiver of any such Building Rule. No provision of
this Lease shall be deemed to have been waived by either party unless such
waiver shall be set forth in a written instrument executed by the party against
which such waiver is sought. No payment by Tenant or receipt by Owner of a
lesser amount than the aggregate of all Fixed Rent and additional rent then due
under this Lease shall be deemed to be other than on account of the first
accruing of all such items of Fixed Rent and additional rent then due, no
endorsement or statement on any check and no letter accompanying any check or
other rent payment in any such lesser amount and no acceptance of any such check
or other such payment by Owner shall constitute an accord and satisfaction, and
Owner may accept any such check or payment without prejudice to Owner's right to
recover the balance of such rent or to pursue any other legal remedy.
ARTICLE 25
MUTUAL WAIVER OF TRIAL BY JURY
SECTION 25.01. Owner and Tenant hereby waive trial by jury in
any action, proceeding or counterclaim brought by Owner or Tenant against the
other on any matter whatsoever arising out of or in any way connected with this
Lease, the relationship of landlord and tenant, the use or occupancy of the
Demised Premises by Tenant or any person claiming through or under Tenant, any
claim of injury or damage, and any emergency or other statutory remedy; however,
the foregoing waiver shall not apply to any action for personal injury or
property damage. The provisions of the foregoing sentence shall survive the
expiration or any sooner termination of the Demised Term. If Owner commences any
summary proceeding, or any other proceeding of like import, Tenant agrees: (i)
not to interpose any counterclaim of whatever nature or description in any such
summary proceeding, or any other proceeding of like import, unless failure to
interpose such counterclaim would preclude Tenant from asserting such claim in a
separate action or proceeding; and (ii) not to seek to remove to another court
or jurisdiction or consolidate any such summary proceeding, or other proceeding
of like import, with any action or proceeding which may have been, or will be,
brought by Tenant. In the event that Tenant shall breach any of its obligations
set forth in the immediately preceding sentence, Tenant agrees (a) to pay all of
Owner's attorneys' fees and disbursements in connection with Owner's enforcement
of such obligations of Tenant and (b) in all events, to pay all accrued, present
and future Fixed Rent and increases therein and additional rent payable pursuant
to the provisions of this Lease.
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ARTICLE 26
INABILITY TO PERFORM
SECTION 26.01. If, by reason of strikes or other labor
disputes, fire or other casualty (or reasonable delays in adjustment of
insurance), accidents, any Legal Requirements, any orders of any Governmental
Authority or any other cause beyond Owner's reasonable control, whether or not
such other cause shall be similar in nature to those hereinbefore enumerated,
Owner is unable to furnish or is delayed in furnishing any utility or service
required to be furnished by Owner under the provisions of Article 29 or any
other Article of this Lease or any collateral instrument, or is unable to
perform or make or is delayed in performing or making any installations,
decorations, repairs, alterations, additions or improvements, whether or not
required to be performed or made under this Lease or under any collateral
instrument, or is unable to fulfill or is delayed in fulfilling any of Owner's
other obligations under this Lease or any collateral instrument, no such
inability or delay shall constitute an actual or constructive eviction, in whole
or in part, or entitle Tenant to any abatement or diminution of rent, or relieve
Tenant from any of its obligations under this Lease, or impose any liability
upon Owner or its agents by reason of inconvenience or annoyance to Tenant, or
injury to or interruption of Tenant's business, or otherwise.
SECTION 26.02. If by reason of strikes or other labor
disputes, fire or other casualty (or reasonable delays in adjustment of
insurance), accidents, orders or regulations of any Federal, State, County or
Municipal authority, or any other cause beyond Tenant's reasonable control,
Tenant is unable to fulfill any of Tenant's obligations under this Lease or any
collateral instrument (with the exception of any obligations on Tenant's part to
pay any sum of money due Owner, including, without limitation, the payment of
Fixed Rent or increases thereof, or any additional rent, which monetary
obligation shall remain unaffected by the provisions of this Section 26.02),
Tenant shall not be required to fulfill such non-monetary obligations during the
period that Tenant is so unable to fulfill them by reason of the above,
provided, however, that Tenant shall employ reasonable diligence to attempt to
eliminate the cause of such inability referred to in this Section 26.02.
ARTICLE 27
NOTICES
SECTION 27.01. Except as otherwise expressly provided in this
Lease, any bills, statements, notices, demands, requests or other communications
given or required to be given under this Lease shall be effective only if
rendered or given in writing, sent by certified mail (return receipt requested
or by recognized courier guaranteeing overnight delivery or same day delivery
and providing dated evidence of receipt or refusal to receive delivery by the
addressee), addressed as follows:
(A) To Tenant (i) at Tenant's address set forth in
this Lease if mailed prior to Tenant's taking possession of the Demised
Premises, or (ii) at the Building if mailed subsequent to Tenant's taking
possession of the Demised Premises, or (iii) at any place where Tenant or any
agent or employee of Tenant may be found if mailed subsequent to Tenant's
vacating, deserting, abandoning or surrendering the Demised Premises, and (iv)
in all
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cases by photocopy, in like manner, to: Pryor, Cashman, Xxxxxxx & Xxxxx, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxxxxx, Esq., or
(b) To Owner at Owner's address set forth in this
Lease, with a copy to Xxxxxxxx & Fleece, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Partner-in-Charge, Xxxxx Management, or
(c) addressed to such other address as either Owner
or Tenant may designate as its new address for such purpose by notice given to
the other in accordance with the provisions of this Section. Any such xxxx,
statement, notice, demand, request or other communication shall be deemed to
have been rendered or given on the date when it shall have been received or
delivery refused by the addresses as indicated on the receipt as provided in
this Section.
Nothing contained in this Section 27.01 shall preclude, limit or modify Owner's
service of any notice, statement, demand or other communication in the manner
required by law, including, but not limited to, any demand for rent under
Article 7 of the New York Real Property Actions and Proceedings Law or any
successor law of like import.
ARTICLE 28
PARTNERSHIP TENANT
SECTION 28.01. If Tenant is a partnership or professional
corporation or limited liability company (or is comprised of two (2) or more
persons, individually and as co-partners of a partnership or shareholders of a
professional corporation or members of a limited liability company) or if
Tenant's interest in this Lease shall be assigned to a partnership or
professional corporation or limited liability company (or to two (2) or more
persons, individually and as co-partners of a partnership or shareholders of a
professional corporation or members of a limited liability company) pursuant to
Article 11 (any such partnership, professional corporation, limited liability
company and such persons are referred to in this Section as "Partnership
Tenant"), the following provisions of this Section shall apply to such
Partnership Tenant: (i) the liability of each of the persons comprising
Partnership Tenant shall be joint and several, individually and as a partner or
shareholder or member, with respect to all obligations of the Tenant under this
Lease whether or not such obligations arose prior to, during, or after any
period when any party comprising Partnership Tenant was a member or shareholder
of Partnership Tenant, and (ii) each of the persons comprising Partnership
Tenant, whether or not such person shall be one of the persons comprising Tenant
at the time in question, hereby consents in advance to, and agrees to be bound
by, any written instrument which may hereafter be executed, changing, modifying
or discharging this Lease, in whole or in part, or surrendering all or any part
of the Demised Premises to Owner, and by any notices, demands, requests or other
communications which may hereafter be given by Partnership Tenant or by any of
the persons comprising Partnership Tenant, and (iii) any bills, statements,
notices, demands, requests or other communications given or rendered to
Partnership Tenant or to any of the persons composing Partnership Tenant shall
be deemed given or rendered to Partnership Tenant and to all such persons and
shall be binding upon Partnership Tenant and all such persons, and (iv) if
Partnership Tenant shall admit new partners or shareholders or members, all of
such new partners or shareholders or members, as
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the case may be, shall, by their admission to Partnership Tenant, be deemed to
have assumed performance of all of the terms, covenants and conditions of this
Lease on Tenant's part to be observed and performed, and shall be liable for
such performance, together with all other parties, jointly or severally,
individually and as a partner or shareholder or member, whether or not the
obligation to comply with such terms, covenants or conditions arose prior to,
during or after any period when any party composing Partnership Tenant was a
member or shareholder of Partnership Tenant and (v) Partnership Tenant shall
give prompt notice to Owner of the admission of any such new partners, or
shareholders, or members, as the case may be, and, upon demand of Owner, shall
cause each such new partner or shareholder or member to execute and deliver to
Owner an agreement, in form satisfactory to Owner, wherein each such new partner
or shareholder or member shall so assume performance of all of the terms,
covenants and conditions of this Lease on Tenant's part to be observed and
performed whether or not the obligation to comply with such terms, covenants or
conditions arose prior to, during or after any period when any party comprising
Partnership Tenant was a member or shareholder of Partnership Tenant (but
neither Owner's failure to request any such agreement nor the failure of any
such new partner, shareholder or member to execute or deliver any such agreement
to Owner shall vitiate the provisions of subdivision (iv) or any other provision
of this Section).
ARTICLE 29
UTILITIES AND SERVICES
SECTION 29.01. ELEVATORS: Owner, at Owner's expense, shall
furnish necessary passenger elevator facilities twenty-four (24) hours per day
on business days (as defined in Section 31.01) and on Saturdays from 8:00 A.M.
to 6:00 P.M. and shall have a passenger elevator subject to call at all other
times. Tenant shall be entitled to the non-exclusive use of the freight elevator
in common with other tenants and occupants of the Building from 8:00 A.M. to
6:00 P.M. on business days, subject to such reasonable rules as Owner may adopt
for the use of the freight elevator. At any time or times all or any of the
elevators in the Building may, at Owner's option, be automatic elevators, and
Owner shall not be required to furnish any operator service for automatic
elevators. If Owner shall, at any time, elect to furnish operator service for
any automatic elevators, Owner shall have the right to discontinue furnishing
such service with the same effect as if Owner had never elected to furnish such
service.
SECTION 29.02. HEAT: As long as Tenant is not in default under
any of the terms, covenants or conditions of this Lease on Tenant's part to be
observed or performed, Owner, at Owner's expense, shall furnish heat to the
Demised Premises, as and when required by law, twenty-four (24) hours per day on
business days and on Saturdays from 8:00 A.M. to 6:00 P.M.
SECTION 29.03. AIR CONDITIONING AND VENTILATION: As long as
Tenant is not in default under any of the terms, covenants or conditions of this
Lease on Tenant's part to be observed or performed, Owner, at Owner's expense,
shall furnish and distribute to the Demised Premises (i) conditioned air at
reasonable temperatures, pressures and degrees of humidity and in reasonable
volumes and velocities, twenty-four (24) hours per day on business days and on
Saturdays from 8:00 A.M. to 6:00 P.M. during the months of May, June, July,
August, September and October when required for the comfortable occupancy of the
Demised
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Premises: and (ii) mechanical ventilation through the Building air conditioning
system twenty-four (24) hours per day on business days and on Saturdays from
8:00 A.M. to 6:00 P.M. throughout the year, except when conditioned air or heat
is being furnished. Notwithstanding the foregoing provisions of this Section,
Owner shall not be responsible if the normal operation of the Building air
conditioning system shall fail to provide conditioned air at reasonable
temperatures, pressures or degrees of humidity or in reasonable volumes or
velocities in any portions of the Demised Premises (a) which, by reason of any
machinery or equipment installed by or on behalf of Tenant or any person
claiming through or under Tenant, shall have an electrical load in excess of
four (4) xxxxx per square foot of usable area for all purposes (including
lighting and power excluding the Building heating, ventilation and air
conditioning system), or which shall have a human occupancy factor in excess of
one person per 100 square feet of usable area (the average electrical load and
human occupancy factors for which the Building air conditioning system is
designed) or (b) because of any rearrangement of partitioning or other
Alterations made or performed by or on behalf of Tenant or any person claiming
through or under Tenant. Whenever said air conditioning system is in operation,
Tenant agrees to cause all the windows in the Demised Premises to be kept closed
and to cause the Venetian blinds in the Demised Premises to be kept closed if
necessary because of the position of the sun. Tenant agrees to cause all the
windows in the Demised Premises to be closed whenever the Demised Premises are
not occupied. Tenant shall cooperate fully with Owner at all times and abide by
all regulations and requirements which Owner may reasonably prescribe for the
proper functioning and protection of the air conditioning and ventilating
system. In addition to any and all other rights and remedies which Owner may
invoke for a violation or breach of any of the foregoing provisions of this
Section, Owner may discontinue heating, air conditioning and ventilating service
during the period such violation or breach, and such discontinuance shall not
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Owner, or its agents,
by reason of inconvenience or annoyance to Tenant, or injury to or interruption
of Tenant's business, or otherwise.
SECTION 29.04. CLEANING: A. Tenant, at Tenant's expense, shall
keep the Demised Premises in order, shall cause the Demised Premises to be
cleaned and shall cause Tenant's refuse and rubbish to be removed, all at
regular intervals in accordance with standards and practices adopted by Owner
for the Building. Tenant shall cooperate with any waste and garbage recycling
program of the Building and shall comply with all reasonable rules and
regulations of Owner with respect thereto. Tenant, at Tenant's expense, shall
cause all portions of the Demised Premises used for the storage, preparation,
service or consumption of food or beverages to be cleaned daily in a manner
satisfactory to Owner, and to be exterminated against infestation by vermin,
roaches or rodents regularly and, in addition, whenever there shall be evidence
of any infestation.
B. Owner, at Owner's expense, shall clean the public portions
of the Building at regular intervals in accordance with practices and standards
adopted by Owner for the Building.
C. The removal of refuse and rubbish and the furnishing of
office cleaning services to Tenant by persons other than Owner and its
contractors shall be performed in accordance with such regulations and
requirements as, in Owner's judgment, are necessary for the proper operation of
the Building, and Tenant agrees that Tenant will not permit any
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person to enter the Demised Premises or the Building for such purposes, or for
the purpose of providing extermination services required to be performed by
Tenant pursuant to Subsection A of this Section, other than persons first
approved by Owner, such approval not unreasonably to be withheld.
SECTION 29.05. ELECTRICITY: A. Owner shall redistribute or
furnish electrical energy to or for the use of Tenant in the Demised Premises
for the operation of the lighting fixtures and the electrical receptacles
installed in the Demised Premises on the Commencement Date. If either the
quantity or character of electrical service is changed by the public utility
corporation supplying electrical service to the Building or is no longer
available or suitable for Tenant's requirements, no such change, unavailability
or unsuitability shall constitute an actual or constructive eviction, in whole
or in part, or entitle Tenant to any abatement or diminution of rent, or relieve
Tenant from any of its obligations under this Lease, or impose any liability
upon Owner, or its agents, by reason of inconvenience or annoyance to Tenant, or
injury to or interruption of Tenant's business or otherwise, unless such change,
unavailability or unsuitability is caused by Owner's negligence or willful
misconduct or the negligence or willful misconduct of Owner's agents, employees
or contractors.
B. Owner shall provide for an electrical load of eight (8)
xxxxx per square foot of usable area demand load other than during any period it
is prohibited from doing so by any laws, orders, rules and/or regulations of any
applicable governmental authorities (including, but not limited to, the New York
State Energy Conversation Construction Code) in which event the reference to
eight (8) xxxxx hereinabove set forth shall, during such period, be decreased to
the maximum number of xxxxx per usable square foot which is permitted by any
such laws, orders, rules and/or regulations. The foregoing shall be exclusive of
the electrical power for the Building HVAC systems. Solely for the proposes of
this section, the Demised Premises shall be deemed to contain 8,999 square feet.
Any additional feeders or risers to supply Tenant's additional electrical
requirements, and all other equipment proper and necessary in connection with
such feeders or risers shall be installed by Owner upon Tenant's request, at the
sole cost and expense of Tenant, provided, that, in Owner's judgment, such
additional feeders or risers are necessary and are permissible under applicable
laws and insurance regulations and the installation of such feeders or risers
will not cause permanent damage or injury to the Building or the Demised
Premises or cause or create a dangerous or hazardous condition or entail
excessive or unreasonable alterations or repairs to or interfere with or disturb
other tenants or occupants of the Building. Tenant covenants that at no time
shall the use of electrical energy in the Demised Premises exceed the capacity
of the existing feeders or risers or wiring installations then serving the
Demised Premises.
C. Prior to the Commencement Date Owner, at Owner's expense,
shall have installed a submeter or submeters in the Demised Premises to measure
Tenant's actual consumption of electricity in the entire Demised Premises.
Tenant shall pay to Owner, from time to time, upon demand, for the electricity
consumed in the Demised Premises, as determined by such submeter or submeters,
the actual cost to Owner of purchasing electricity for the Demised Premises (as
such actual cost is hereinafter defined) plus all applicable taxes thereon.
Owner's actual cost for Tenant's KW and KWH shall be determined by the
application of the Building's electric rate schedule per month to Tenant's
usage. With respect to any period when any such submeter is not in good working
order, Tenant shall pay Owner for electricity consumed in the portion of the
Demised Premises served by such submeter at the rate paid by Tenant to Owner
during the most recent comparable period when such
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submeter was in good working order. Tenant shall take good care of any such
submeter and all submetering installation equipment, at Tenant's sole cost and
expense, and make all repairs thereto occasioned by any acts, omissions or
negligence of Tenant or any person claiming through or under Tenant as and when
necessary to insure that any such submeter is, at all times during the Demised
Term, in good working order. With respect to the period (referred to as the
"Interim Periods"), if any, from the Commencement Date through the date
immediately prior to the date upon which the submeter or submeters shall be
operable, Tenant shall pay to Owner monthly on demand of Owner, for the
electricity consumed in the Demised Premises, a sum equal to one-twelfth
(1/12th) of the product of (x) $1.50 multiplied by (y) the Demised Premises
Area. With respect to any period during the Interim Period constituting less
than a full calendar month, the monthly payment referred to in the preceding
sentence shall he appropriately prorated.
D. (1) Owner may, at any time, elect to discontinue the
redistribution or furnishing of electrical energy. In the event of any such
election by Owner, (i) Owner agrees to give reasonable advance notice of any
such discontinuance to Tenant, (ii) Owner agrees to permit Tenant to receive
electrical service directly from the public utility corporation supplying
electrical service to the Building and to permit the existing feeders, risers,
wiring and other electrical facilities serving the Demised Premises to be used
by Tenant for such purpose to the extent they are suitable and safely capable,
(iii) Owner agrees to pay such charges and costs, if any, as such public utility
corporation may impose in connection with the installation of Tenant's meters,
(iv) the provisions of Subsection C of this Section 29.05 shall be deemed
deleted from this Lease, and (v) this Lease shall remain in full force and
effect and such discontinuance shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of rent, or relieve Tenant from any of its obligations under this Lease, or
impose any liability upon Owner or its agents by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise.
(2) Notwithstanding anything to the contrary
contained in subsection D(1) of this Section 29.05, Owner agrees that Owner
shall not voluntarily discontinue the redistribution or furnishing of electrical
energy until Owner shall have made or paid for all installations required to
provide Tenant with electrical service similar to the electrical service which
Tenant had in the Demised Premises immediately prior to such discontinuance and
the public utility corporation supplying electrical service to the Building has
agreed to furnish such service so that Tenant shall immediately upon such
discontinuance be able to receive electrical service directly from such public
utility corporation. Unless a shorter time is required by the public utility
corporation supplying electrical service to the Building, Owner shall give
Tenant at least ninety (90) days prior notice of any such discontinuance.
E. Notwithstanding anything to the contrary set forth in this
Lease, any sums payable or granted in any way by the public utility corporation
supplying electricity to the Building resulting from the installation in the
Demised Premises of energy efficient lighting fixtures, lamps, special
supplemental heating, ventilation and air conditioning systems or any other
Alterations, which sums are paid or given by way of rebate, direct payment,
credit or otherwise, shall be and remain the property of Owner, and Tenant shall
not be entitled to any portion thereof, unless such lighting fixtures, lamps,
supplemental heating, ventilation and air conditioning systems or other
Alterations were installed by Tenant, solely at Tenant's expense, without any
contribution, credit or allowance by Owner, in accordance with
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all of the provisions of this Lease. For the purposes of the preceding sentence
any such lighting fixtures, lamps, supplemental heating, ventilation and air
conditioning systems or other Alterations composing part of Owner's Initial
Construction shall be deemed installed solely at Tenant's expense. Nothing
contained in the foregoing, however, shall be deemed to obligate Owner to supply
or install in the Demised Premises any such lighting fixtures, lamps,
supplemental heating, ventilation and air conditioning systems or other
Alterations.
F. Tenant acknowledges that the Building heating, ventilating
and air conditioning system units serving the floors of the Building on which
the Demised Premises are located (each referred to herein as the "Floor HVAC
Unit") shall not be connected to the submeter(s) serving the Demised Premises,
but, instead, shall be connected to a separate meter(s) measuring the electrical
energy consumed by each such Floor HVAC Unit. Accordingly, Tenant agrees that
during the Demised Term, Tenant shall pay to Owner, from time to time upon
demand of Owner and submission by Owner to Tenant of invoices or bills therefor,
sixty-two and 13/100 (62.13%) percent (hereinafter "Tenant's Electrical Share")
of all amounts shown on said separate meter(s) for such Floor HVAC Unit serving
the tenth (10th) floor and twenty-two and 40/100 (22.40%) percent of all amounts
shown on said separate meter(s) for such Floor HVAC Unit serving the eleventh
(11th) floor (also hereinafter referred to as Tenant's Electrical Share).
G. Tenant acknowledges that the light and power systems
serving the public areas of the floors of the Building on which the Demised
Premises are located (each referred to herein as the "Floor Public Light and
Power") shall not be connected to the submeter(s) serving the Demised Premises
but, instead, shall be connected to a separate meter(s) measuring the electrical
energy consumed by each such Floor Public Light and Power. Accordingly, Tenant
agrees that during the Demised Term, Tenant shall pay to Owner, from time to
time upon demand of Owner and submission by Owner to Tenant of invoices or bills
therefor, the applicable Tenant's Electrical Shares of all amounts shown on said
applicable separate meter(s) for such applicable Floor Public Light and Power
for each floor of the Building on which the Demised Premises are located.
SECTION 29.06. WATER: Tenant shall only be permitted to use
and be given, water for ordinary lavatory, drinking, showering and a Xxxxx-type
unit purpose.
SECTION 29.07. OVERTIME PERIODS: The Fixed Rent does not
reflect or include any charge to Tenant for the furnishing or distributing of
any necessary elevator facilities, heat, conditioned air or mechanical
ventilation to the Demised Premises during periods (referred to as "Overtime
Periods") other than the hours and days set forth above in this Article for the
furnishing and distributing of such services. Tenant shall not be charged for
its initial move into the Demised Premises. Accordingly, if Owner shall furnish
any such elevator facilities, heat, conditioned air or mechanical ventilation to
the Demised Premises at the request of Tenant during Overtime Periods. Tenant
shall pay Owner for such services at the following rates as of the date of this
Lease: $10.00 Dollars per hour per floor receiving such services for
air-conditioning, $10.00 Dollars per hour per floor receiving such services for
ventilation, $10.00 Dollars per hour per floor receiving such services for
heating and $60.00 Dollars per hour for freight elevator service. Any increases
above such rates shall be in an amount equal to the actual increases after the
date of this Lease in the cost to Owner of furnishing such services. Owner shall
not be required to furnish any such services during Overtime Periods, unless
Owner has received reasonable advance notice from Tenant
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requesting such services. If Tenant fails to give Owner reasonable advance
notice requesting such services during any Overtime Periods, then, whether or
not the Demised Premises are habitable during such Overtime Periods, failure by
Owner to furnish or distribute any such services during such Overtime Periods
shall not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Owner or
its agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business or otherwise. If other tenants on the
applicable floor of the Demised Premises where overtime heat, conditioned air or
mechanical ventilation are requested by Tenant also request the same service for
the same period then the hourly charge shall be apportioned among the tenants
requesting the same services during the same periods.
SECTION 29.08. OWNER'S RIGHT TO STOP SERVICE: Owner reserves
the right to stop the service of the heating, air conditioning, ventilating,
elevator, plumbing, electrical or other mechanical systems or facilities in the
Building when necessary by reason of accident or emergency, or for repairs,
alterations, replacements or improvements, which, in the reasonable judgment of
Owner are desirable or necessary, until said repairs, alterations, replacements
or improvements shall have been completed. The exercise of such right by Owner
shall not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent, or relieve Tenant from
any of its obligations under this Lease, or impose any Liability upon Owner or
its agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise. Owner shall employ reasonable
diligence in attempting to restore the operation of any such system or
facilities without any obligation, however, to employ labor at overtime or other
premium pay rates, except that in cases where there is a material interference
with Tenant's business or the health or safety of the occupants of the Demised
Premises is adversely affected. Owner shall employ contractors or labor at
overtime or other premium pay rates.
ARTICLE 30
TABLE OF CONTENTS, ETC.
SECTION 30.01. TABLE OF CONTENTS/CAPTIONS: The Table of
Contents and the captions following the Articles and Sections of this Lease have
been inserted solely as a matter of convenience and in no way define or limit
the scope or intent of any provision of this Lease.
ARTICLE 31
MISCELLANEOUS DEFINITIONS,
SEVERABILITY AND INTERPRETATION PROVISIONS
SECTION 31.01. The term "business days" as used in this Lease
shall exclude Saturdays, Sundays and holidays, the term "Saturdays" as used in
this Lease shall exclude holidays and the term "holidays" as used in this Lease
shall mean all days observed as legal holidays by either the New York State
Government or the Federal Government.
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SECTION 31.02. The terms "person" and "persons" as used in
this Lease shall be deemed to include natural persons, firms, corporations,
associations and any other private or public entities, whether any of the
foregoing are acting on their own behalf or in a representative capacity.
SECTION 31.03. The term "prime rate" shall mean the rate of
interest announced publicly by Chemical Bank, or its successor, from time to
time, as Chemical Bank's or such successor's base rate, or if there is no such
base rate, then the rate of interest charged by Chemical Bank or its successor
to its most credit worthy customers on commercial loans having a ninety (90) day
duration.
SECTION 31.04. If any term, covenant or condition of this
Lease or any application thereof shall be invalid or unenforceable, the
remainder of this Lease and any other application of such term, covenant or
condition shall not be affected thereby.
SECTION 31.05. This Lease shall be construed without regard to
any presumption or other rule requiring construction against the party causing
this Lease to be drafted. In the event of any action, suit, dispute or
proceeding affecting the terms of this Lease, no weight shall be given to any
deletions or striking out of any of the terms of this Lease contained in any
draft of this Lease and no such deletion or strike out shall be entered into
evidence in any such action, suit or dispute or proceeding given any weight
therein.
ARTICLE 32
ADJACENT EXCAVATION
SECTION 32.01. If an excavation shall be made upon land
adjacent to the Real Property, or shall be authorized to be made, Tenant shall
afford to the person causing or authorized to cause such excavation license to
enter upon the Demised Premises for the purpose of doing such work as said
person shall deem necessary to preserve the walls and other portions of the
Building from injury or damage and to support the same by proper foundations and
no such entry shall constitute an actual or constructive eviction, in whole or
in part, or entitle Tenant to any abatement or diminution of rent, or relieve
Tenant from any of its obligations under this Lease, or impose any liability
upon Owner or said person.
ARTICLE 33
BUILDING RULES
SECTION 33.01. Tenant shall observe faithfully, and comply
strictly with, and shall not permit the violation of, the Building Rules set
forth in Schedule A annexed to and made a part of this Lease and such additional
reasonable Building Rules as Owner may, from time to time, adopt. All Of the
terms, covenants and conditions of Schedule A are incorporated in this Lease by
reference and shall be deemed part of this Lease as though fully set forth in
the body of this Lease. The term "Building Rules" as used in this Lease shall
include those set forth in Schedule A and those hereafter made or adopted as
provided in this Section. In case Tenant disputes the reasonableness of any
additional Building Rule hereafter
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adopted by Owner, the parties hereto agree to submit the question of the
reasonableness of such Building Rule for decision to the Chairman of the Board
of Directors of the Management Division of the Real Estate Board of New York,
Inc., or its successor (the "Chairman"), or to such impartial person or persons
as the Chairman may designate, whose determination shall be final and conclusive
upon Owner and Tenant. Tenant's right to dispute the reasonableness of any
additional Building Rule shall be deemed waived unless asserted by service of a
notice upon Owner within ten (10) days after the date upon which Owner shall
give notice to Tenant of the adoption of any such additional Building Rule.
Owner shall have no duty or obligation to enforce any Building Rule, or any
term, covenant or condition of any other lease, against any other tenant or
occupant of the Building, and Owner's failure or refusal to enforce any Building
Rule or any term, covenant or condition of any other lease against any other
tenant or occupant of the Building shall not constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Owner or its agents by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's
business, or otherwise.
SECTION 33.02. Any Building Rule not enforced generally
against other tenants of the Building shall not be enforced against Tenant.
Wherever the Building Rules provide for a matter to be determined by Owner or
its agents, Owner or its agents shall exercise their reasonable judgment with
respect thereto and any determination to be made by Owner or its agents
thereunder shall not be unreasonably withheld or delayed.
ARTICLE 34
BROKER
SECTION 34.01. Owner and Tenant each represent and warrant to
the other that with the exception of Xxxxx Realty Company, Owner's consultant,
X.X. Xxxxxxxxxxx & Company, Inc. is the sole broker with whom either party has
negotiated or otherwise dealt with in connection with the Demised Premises or in
bringing about this Lease. Owner and Tenant shall indemnify each other from all
loss, cost, liability, damage and expenses, including, but not limited to,
reasonable counsel fees and disbursements, arising from any breach of the
foregoing representation and warranty. Owner shall pay any commission or
compensation due hereunder pursuant to a separate agreement with such broker.
ARTICLE 35
SECURITY
SECTION 35.01. The sum of THIRTY-THREE THOUSAND TWO HUNDRED
NINETY-SEVEN and 50/100 ($33,297.50) DOLLARS representing security (referred to
as "Security") for the faithful performance and observance by Tenant of the
terms, covenants and conditions of this Lease on Tenant's part to be observed
and performed is due and payable at the time of the execution and delivery of
this Lease. In the event of any default by Tenant in the observance or
performance of any of the terms, covenants or conditions of this Lease on the
part of Tenant to be observed or performed including, but not limited to, any
default in the
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payment when due of any monthly installment of the Fixed Rent or increase in the
Fixed Rent payable pursuant to the provisions of Articles 23 or 29 or of any
additional rent, Owner may use or apply all or any part of the Security for the
payment to Owner for Tenant's account of any sum or sums due under this Lease
without thereby waiving any other rights or remedies of Owner with respect to
such default. Tenant agrees to replenish all or any part of the Security so used
or applied during the Demised Term. After (i) the Expiration Date or any other
date upon which the Demised Term shall expire and come to an end, and (ii) the
full observance and performance by Tenant of all of the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed,
including, but not limited to, the provisions of Article 21, Owner shall return
to Tenant the balance of the Security then held or retained by Owner. Owner
agrees that, unless prohibited by law or by the general policies of lending
institutions in New York City, Owner shall deposit the Security in an
interest-bearing savings account with a bank selected by Owner, in which event
all interest accruing thereon shall be added to and become part of the Security
and shall be retained by Owner under the same conditions as the sum originally
deposited as Security. Tenant agrees that Tenant shall not assign or encumber
any part of the Security, and no assignment or encumbrance by Tenant of all or
any part of the Security shall be binding upon Owner, whether made prior to,
during, or after the Demised Term. Owner shall not be required to exhaust its
remedies against Tenant or against the Security before having recourse to any
other form of security held by Owner and recourse by Owner to any form of
security shall not affect any remedies of Owner which are provided in this Lease
or which are available to Owner in law or equity. In the event of any sale,
assignment or transfer by Owner named herein (or by any subsequent Owner) of its
interest in the Building as owner or lessee. Owner (or such subsequent owner)
shall have the right to assign or transfer the Security to its grantee, assignee
or transferee and, in the event of such assignment or transfer and the
assumption of Owner's obligations under this Article by the grantee, assignee or
transferee, Owner named herein, (or such subsequent Owner) shall have no
liability to Tenant for the return of the Security and Tenant shall look solely
to the grantee, assignee or transferee for such return. A lease of the entire
Building shall be deemed a transfer within the meaning of the foregoing
sentence. Notwithstanding anything to the contrary set forth in the foregoing
provisions of this Article, Owner shall be entitled to retain the one (1%)
percent administrative fee permitted by law to be retained by landlords with
respect to security deposits.
ARTICLE 36
ARBITRATION, ETC.
SECTION 36.01. Any dispute (i) with respect to the
reasonability of any failure or refusal of Owner to grant its consent or
approval to any request for such consent or approval pursuant to the provisions
of Section 3.01 with respect to which request Owner has agreed, in such Section,
not unreasonably to withhold such consent or approval, or (ii) arising out of
the application of the Operating Expenses provisions of Article 23, which is
submitted to arbitration shall be finally determined by arbitration in the City
of New York in accordance with the rules and regulations then obtaining of the
American Arbitration Association or its successor. Any such determination shall
be final and binding upon the parties, whether or not a judgment shall be
entered in any court. In making their determination, the arbitrators shall not
subtract from, add to, or otherwise modify any of the provisions of this Lease.
Owner and Tenant may, at their own expense, be represented by counsel and employ
expert witnesses in
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any such arbitration. Any dispute as to the reasonableness of Owner's failure or
refusal to consent to any subletting in accordance with Section 11.03 or the
validity of any assignment in accordance with Section 11.08 shall be determined
by arbitration in accordance with Section 11.03E. Any dispute with respect to
the reasonability of any failure or refusal of Owner to grant its consent or
approval to any request for such consent or approval pursuant to any of the
provisions of this Lease (other than Sections 3.01 and 11.03) with respect to
which Owner has covenanted not unreasonably to withhold such consent or
approval, and any dispute arising with respect to the increases in Fixed Rent
due to the provisions of Section 23.02 shall be determined by applicable legal
proceedings. If the determination of any such legal proceedings, or of any
arbitration held pursuant to the provisions of this Section with respect to
disputes arising under Section 3.01 or the Operating Expense provisions of
Article 23 or any arbitration held pursuant to the provisions of Section 11.03E,
shall be adverse to Owner, Owner shall be deemed to have granted the requested
consent or approval, or be bound by any determination as to Taxes and Operating
Expenses and the increases in Fixed Rent relating thereto or the validity of any
assignment, but that shall be Tenant's sole remedy in such event and Owner shall
not be liable to Tenant for a breach of Owner's covenant not unreasonably to
withhold such consent or approval, or otherwise. Each party shall pay its own
counsel and expert witness fees and expenses, if any, in connection with any
arbitration held pursuant to the provisions of this Section and the parties will
share all other expenses and fees of any such arbitration.
ARTICLE 37
PARTIES BOUND
SECTION 37.01. The terms, covenants and conditions contained
in this Lease shall bind and inure to the benefit of Owner and Tenant and,
except as otherwise provided in this Lease, their respective heirs, distributee,
executors, administrators, successors and assigns. However, the obligations of
Owner under this Lease shall no longer be binding upon Owner named herein after
the sale, assignment or transfer by Owner named herein (or upon any subsequent
Owner after the sale, assignment or transfer by such subsequent Owner) of its
interest in the Building as owner or lessee, and in the event of any such sale,
assignment or transfer, such obligations shall thereafter be binding upon the
grantee, assignee or other transferee of such interest, and any such grantee,
assignee or transferee, by accepting such interest, shall be deemed to have
assumed such obligations. A lease of the entire Building shall be deemed a
transfer within the meaning of the foregoing sentence. Neither the partners
(direct or indirect) composing Owner, nor the shareholders (nor any of the
partners composing same), partners, directors or officers of any of the
foregoing (collectively, the "Owner's Parties") shall be liable for the
performance of Owner's obligations under this Lease. Tenant shall look solely to
Owner to enforce Owner's obligations hereunder and shall not seek any damages
against any of the Owner's Parties. Notwithstanding anything contained in this
Lease to the contrary, Tenant shall look solely to the estate and interest of
Owner, its successors and assigns, in the Real Property and Building for the
collection or satisfaction of any judgment recovered against Owner based upon
the breach by Owner of any of the terms, conditions or covenants of this Lease
on the part of Owner to be performed, and no other property or assets of Owner
or any of Owner's Parties shall be subject to levy, execution or other
enforcement procedure for the satisfaction of Tenant's remedies under or with
respect to either this Lease,
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the relationship of landlord and tenant hereunder, or Tenant's use and occupancy
of the Demised Premises.
ARTICLE 38
DELETED
ARTICLE 39
RENEWAL OPTION
SECTION 39.01. Provided (i) Tenant is not then in default
under any of the terms, covenants or conditions of this Lease on Tenant's part
to be observed or performed after notice and beyond the expiration of any
applicable grace and cure periods; and (ii) Tenant and its subsidiaries and
affiliates, in contradistinction to any subtenants or occupants, shall then be
in occupancy of at least fifty (50%) percent of the space leased to Tenant under
this Lease (for the purposes of this Article 39, any space leased to Tenant
under this Lease which has been eliminated from the Demised Premises pursuant to
Section 11.03 shall be deemed space leased to Tenant under this Lease), Tenant
shall have the single option to renew this Lease and the Demised Term for a
single renewal term (referred to as the "Renewal Term") of five (5) years
commencing on the date next following the Expiration Date set forth in Section
1.02.A and ending, unless sooner terminated pursuant to the terms, covenants and
conditions of this Lease or pursuant to law, on the last day (referred to as the
"Extended Expiration Date") of the calendar month in which the day immediately
preceding the fifth (5th) anniversary date of the commencement of the Renewal
Term shall occur. If Tenant exercises such option in accordance with the
provisions and limitations of this Article, this Lease and the Demised Term
shall be renewed for the Renewal Term at a Fixed Rent equal to the fair market
annual rental value of the Demised Premises as of the commencement date of the
Renewal Term, as agreed by the parties or determined in accordance with the
provisions of Section 39.03, but in no event shall the Fixed Rent for the
Renewal Term be less than the Fixed Rent in effect as of the Expiration Date
(before giving effect to any abatement or apportionment of the Fixed Rent) but
otherwise upon the same then executory terms, covenants and conditions as the
original Demised Term (including, but not limited to, Base Operating Expenses
set forth in Article 23).
SECTION 39.02. The option set forth in Section 39.01 may only
be exercised by notice given by Tenant to Owner on or prior to the date which is
fifteen (15) months immediately preceding the commencement date of the Renewal
Term. Time is of the essence with respect to the exercise of such option. Tenant
shall not have the right to give any such notice after the date which is fifteen
(15) months immediately preceding the commencement date of the Renewal Term, and
any notice given after said date, purporting to exercise such option shall be
void and of no force and effect.
SECTION 39.03. In the event Owner and Tenant are unable to
agree as to the fair market annual rental value of the Demised Premises for the
Renewal Term pursuant to Section 39.01 then, upon the demand of either Owner or
Tenant, such fair market annual rental value shall be determined by arbitration
as follows:
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(a) Owner and Tenant shall each appoint an arbitrator within
thirty (30) days after notice by either party requesting arbitration of the
issue. If either Owner or Tenant shall have failed to appoint an arbitrator
within such period of time, then such arbitrator shall be appointed by the
American Arbitration Association, or its successor pursuant to its rules for
commercial matters, or if at such time such association is not in existence and
has no successor, then by the presiding Justice of the Appellate Division, First
Department, of the Supreme Court of the State of New York, or any successor
court, upon request of either Owner or Tenant, as the case may be.
(b) The two arbitrators appointed, as above provided, shall
select a third arbitrator and if they fail to do so within thirty (30) days
after their appointment, such third arbitrator shall be appointed as above
provided for the appointment of an arbitrator in the event either party fails to
do so.
(c) All of such arbitrators shall be real estate appraisers or
brokers having at least fifteen (15) years of experience in such field in the
Borough of Manhattan, City of New York.
(d) The three arbitrators, selected as aforesaid, forthwith
shall convene and render their decision as promptly as practicable after the
appointment of the third arbitrator. The decision of such arbitrators shall be
in writing and the vote of the majority of them (or, if there be no majority
decision, then the decision of the last appointed arbitrator) shall be the
decision of all and binding upon Owner and Tenant whether or not a judgment
shall be entered in any court. Duplicate original counterparts of such decision
shall be sent by the arbitrators to both Owner and Tenant.
(e) The arbitrators, in arriving at their decision, shall be
entitled to consider all testimony and documentary evidence which may be
presented at any hearing as well as facts and data which the arbitrators may
discover by investigation and inquiry outside of such hearings. The arbitrators
shall be bound by the provisions of this Lease, and shall not add to, subtract
from, or otherwise modify such provisions. The cost and expense of such
arbitration shall be borne equally by Owner and Tenant, except that each party
shall pay its own counsel fees and expenses.
(f) Notwithstanding any findings of the arbitrators, such fair
market annual rental rate with respect to the Renewal Term shall not be less
than the Fixed Rent in effect as of the Expiration Date (before giving effect to
any abatement or apportionment of Fixed Rent).
(g) If the determination of the Fixed Rent for the Renewal
Term has not been made by the commencement of the Renewal Term, Tenant, until
such determination, shall continue to pay the minimum Fixed Rent required and
after such determination Tenant shall pay to Owner, upon demand, any additional
sums due to Owner as a result of such determination.
SECTION 39.04. Tenant, upon request of Owner, from time to
time, will execute and deliver to Owner an instrument in form reasonably
satisfactory to Owner stating whether or not Tenant has exercised the right to
renew contained in the provisions of Section 39.01 and, if Tenant has exercised
such right, setting forth the Fixed Rent for the Renewal
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Term. However, failure of Owner to request the execution and delivery of any
such instrument or failure of Tenant to execute and deliver such instrument
shall not vitiate the foregoing provisions of this Article.
SECTION 39.05. Notwithstanding the foregoing, and regardless
of the stage of any then arbitration proceeding with respect to the
determination of the fair market annual rental for the Renewal Term, Tenant
shall have the single right to rescind its notice of its option to renew this
Lease by notice to Owner not later than twelve (12) months immediately preceding
the commencement date of the Renewal Term, in such event, Tenant shall pay all
of Owner's costs in connection with any arbitration with respect to this
numbered Article. From and after such Tenant's notice, the provisions of this
Article 39 shall have no further force and effect. In the event that by the date
twelve (12) months immediately preceding the commencement date of the Renewal
Term the arbitration has not been concluded, Owner and Tenant shall notify the
arbitrators that the arbitration must be expeditiously concluded and the last
date upon which Tenant may exercise its right to rescind shall be extended to
the earlier of the date eleven (11) months immediately preceding the
commencement date of the Renewal Term or the date five (5) days following the
determination of the arbitration.
ARTICLE 40
TENANT'S RIGHT OF FIRST OFFER FOR ADDITIONAL SPACE
SECTION 40.01. TENANT'S FIRST OFFER RIGHT: Provided that (a)
Tenant is not then in default under any of the terms, covenants or conditions of
this Lease on Tenant's part to be observed or performed after notice and beyond
the expiration of any applicable grace and cure periods and (b) Tenant and its
subsidiaries and affiliates, in contradistinction to any subtenants or other
occupants, shall then be in occupancy of at least fifty (50%) percent of the
space leased to Tenant under this Lease (for the purposes of this Article 40 any
space leased to Tenant under this Lease which has been eliminated from the
Demised Premises pursuant to Section 11.03 shall be deemed space leased to
Tenant under this Lease), then Tenant shall have the right (sometimes referred
to herein as "Tenant's First Offer Right"), subject to the provisions of this
Article, exercisable in accordance with the provisions of Section 40.02, to
lease and add to the Demised Premises that portion of the tenth (10th) floor of
the Building indicated by outlining and diagonal markings on the floor plan
initialled by the parties and annexed hereto as Exhibit 3 (such space is
referred to herein as the "Additional Space"), if after the initial leasing by
Owner of such Additional Space it becomes "available for leasing" during the
Demised Term. Tenant acknowledges that Owner may initially lease the Additional
Space for whatever term, and upon all other terms, covenants and conditions, and
to whomever it desires in Owner's sole judgment. The Additional Space shall not
be deemed "available for leasing" if (a) the then tenant of the Additional Space
or any assignee, subtenant or other occupant holding through or under such
tenant shall enter into (i) any agreement with Owner extending the letting
agreement affecting the Additional Space or (ii) any new lease with Owner
affecting the Additional Space, or (b) any other tenant in the Building or any
assignee of such other tenant shall exercise any contractual option or right
which such tenant or assignee has to lease the Additional Space. Notwithstanding
the foregoing provisions of this Section 40.01, Tenant shall not have the right
to lease and add to the Demised Premises the Additional Space pursuant to
Tenant's First Offer Right which becomes available for leasing if, at the time
of the exercise of such Tenant's First Offer Right by Tenant, there are
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less than eighteen (18) months remaining of the Demised Term of this Lease,
unless Tenant has unconditionally exercised Tenant's single renewal option set
forth in Article 39 so as to extend the Demised Term for more than eighteen (18)
months.
SECTION 40.02. NOTICE OF TENTH (10TH) FLOOR AVAILABILITY AND
TENANT'S EXERCISE OF OPTION.
A. In the event that the Additional Space shall become or
about to become available for leasing in accordance with the provisions of
Section 40.01, Owner shall give notice thereof to Tenant (any such notice is
referred to as an "Owner's Availability Notice"), which Notice shall contain the
date such Space is expected to be vacant or available for leasing). Owner's
Availability Notice may be given up to fifteen (15) months prior to the date set
forth in such Notice upon which such Additional Space is expected to become
vacant and available for leasing (the date set forth in Owner's Availability
Notice on which such Additional Space is expected to become available for
leasing is sometimes referred to as an "Expected Vacancy Date"). Upon Owner
giving Tenant an Owner's Availability Notice, Tenant may exercise Tenant's First
Offer Right only by notice given to Owner within ten (10) days next following
the date of the giving of such Owner's Availability Notice, and by giving such
notice thereby lease and add such Additional Space to the Demised Premises for a
term to begin, subject to Section 40.03, on the Expected Vacancy Date; and any
notice given by Tenant to Owner exercising such Tenant's First Offer Right is
referred to as ("Tenant's First Offer Notice".)
B. It is understood and agreed that "time is of the essence"
with respect to Tenant's exercise of its Tenant's First Offer Right pursuant to
this Article and that if Tenant does not exercise such Tenant's First Offer
Right within the ten (10) day time limitation set forth in Subsection A above,
any notice purporting to exercise such Tenant's First Offer Right given after
the expiration of such time limitation shall be void and of no force and effect
and Tenant shall have no further right to lease and add the Additional Space to
the Demised Premises.
C. If Tenant exercises Tenant's First Offer Right in
accordance with the provisions of this Article 40, then the Additional Space
shall be leased by Tenant and added to the Demised Premises upon all of the then
executory terms, covenants and conditions as are contained in this Lease
(including, but not limited to, the provisions of Article 23 and the definition
of Base Operating Expenses set forth therein) except as otherwise provided in
this Article for a term to commence on the Expected Vacancy Date, as the same
may be accelerated or delayed pursuant to the provisions of Section 40.03.
SECTION 40.03. A. ACCELERATION OF FIRST OFFER VACANCY DATE. In
the event that the Additional Space shall become available for leasing sooner
than the Expected Vacancy Date because of the termination of the term of the
lease or occupancy affecting such Additional Space, Owner shall have the right
to accelerate the Expected Vacancy Date to such sooner date upon not less than
thirty (30) days notice to Tenant, provided that such date is not more than six
(6) months prior to the Expected Vacancy Date originally set forth in Owner's
Availability Notice.
B. HOLDOVER OCCUPANT. Owner and Tenant acknowledge the
possibility that all or any of the tenants or occupants of the Additional Space
may not have vacated and surrendered the Additional Space to Owner by the
Expected Vacancy Date. Accordingly,
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notwithstanding anything to the contrary contained in Sections 40.01 or 40.02 or
in any Owner's Availability Notice, if such tenants or occupants shall not have
vacated and surrendered the Additional Space to Owner by the Expected Vacancy
Date, then, the term of this Lease applicable to the Additional Space shall
commence on the date next following the day upon which the Additional Space
becomes vacant and Owner gives notice to Tenant of such vacancy.
C. LEASE NOT AFFECTED. In the event that the provisions of
this Section 40.03 shall apply, then, the parties agree that (a) the Expiration
Date shall not be affected by operation of the provisions of this Section 40.03;
(b) except as expressly set forth in this Section 40.03, neither the validity of
this Lease nor the obligations of Tenant under this Article 40 shall be affected
by operation of the provisions of this Section 40.03; (c) Tenant waives any
rights under Section 223-a of the Real Property Law of New York or any successor
statute of similar import to rescind this Lease or such Tenant's exercise of
Tenant's First Offer Right and further waives the right to recover any damages
against Owner which may result from the failure of Owner to deliver possession
of the Additional Space on the Expected Vacancy Date; and (d) Owner shall
institute, within thirty (30) days after the Expected Vacancy Date set forth in
Owner's Availability Notice, appropriate proceedings against any such Additional
Space tenants or occupants who have not vacated and surrendered all or any
portion of the Additional Space in order to obtain possession thereof, and shall
prosecute such proceedings to completion with reasonable diligence.
SECTION 40.04. MODIFICATION OF LEASE - INCLUSION OF THE
ADDITIONAL SPACE: In the event that Tenant shall timely exercise Tenant's First
Offer Right in accordance with the provisions of this Article then, on the
effective commencement date of the term applicable to the Additional Space, this
Lease shall be deemed modified as follows:
A. The Demised Premises shall include the Additional Space
(together with all appurtenances, fixtures, improvements, additions and other
property attached thereto or installed therein at the commencement of the term
applicable to the Additional Space or at any time during said term, other than
Tenant's Personal Property) for all purposes of this Lease;
B. The Fixed Rent reserved in this Lease shall be increased by
the fair market annual rental value of the Additional Space as of the
commencement dare of the demised term applicable thereto, as determined by
agreement between Owner and Tenant or by arbitration as provided in Section
40.06, but in no event shall such increase in the Fixed Rent per rentable square
foot, from time to time, be less than the Fixed Rent per rentable square foot in
effect from time to time applicable to the original portion of the Demised
Premises (before giving effect to any abatement or apportionment of such Fixed
Rent), and the monthly installments of the Fixed Rent shall each be increased
accordingly to conform with the foregoing. In the event that the term applicable
to the Additional Space shall commence on a date other than the first day of any
month, the monthly installment of the Fixed Rent for the month during which the
term applicable to the Additional Space shall occur shall be increased pro rata
to reflect such increase in the Fixed Rent;
C. The Demised Premises Area set forth in Section 23.01 shall
be increased by 2,033 square feet; and
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D. Tenant's Electrical Share of sixty-two and 13/100 (62.13%)
percent set forth in Section 29.05 shall be increased by twelve and 9/10 (12.9%)
percent.
SECTION 40.05. Tenant agrees to accept the Additional Space in
the condition which shall exist on the commencement date of the term applicable
thereto "as is" and further agrees that Owner shall have no obligation to
perform any work or make any installations in order to prepare the Additional
Space for Tenant's occupancy.
SECTION 40.06. In the event Owner and Tenant are unable to
agree as to the fair market annual rental value of the Additional Space, then,
upon the demand of either Owner or Tenant, such fair market annual rental value
shall be determined by arbitration as follows:
(a) Owner and Tenant shall each appoint an arbitrator
within thirty (30) days after notice by either party
requesting arbitration of the issue. If either Owner
or Tenant shall have failed to appoint an arbitrator
within such period of time, then such arbitrator
shall be appointed by the American Arbitration
Association, or its successor, or if at such time
such association is not in existence and has no
successor, then by the presiding Justice of the
Appellate Division, First Department, of the Supreme
Court of the State of New York, or any successor
court, upon request of either Owner or Tenant, as the
case may be.
(b) The two arbitrators appointed, as above provided,
shall select a third arbitrator and if they fail to
do so within thirty (30) days after their
appointment, such third arbitrator shall be appointed
as above provided for the appointment of an
arbitrator in the event either party fails to do so.
(c) All of such arbitrators shall be real estate
appraisers or brokers having at least fifteen (15)
years of experience in such field in the Borough of
Manhattan, City of New York.
(d) The three arbitrators, selected as aforesaid,
forthwith shall convene and render their decision as
promptly as practicable after the appointment of the
third arbitrator. The decision of such arbitrators
shall be in writing and the vote of the majority of
them (or, if there be no majority decision, then the
decision of the last appointed arbitrator) shall be
the decision of all and binding upon Owner and Tenant
whether or not a judgment shall be entered in any
court. Duplicate original counterparts of such
decision shall be sent by the arbitrators to both
Owner and Tenant.
(e) The arbitrators, in arriving at their decision, shall
be entitled to consider all testimony and documentary
evidence which may be presented at any hearing as
well as facts and data which the arbitrators may
discover by investigation and inquiry outside of such
hearings. The arbitrators shall be bound by the
provisions of this Lease, and shall not add to,
subtract from, or otherwise modify such provisions.
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The cost and expense of such arbitration shall be
borne equally by Owner and Tenant, apt that each
party shall pay its own counsel fees and expenses.
(F) Notwithstanding any findings of the arbitrators, such
fair market annual rental value per rentable square
foot and, accordingly, the Fixed Rent applicable to
the Additional Space from time to time per rentable
square foot shall not be less than the Fixed Rent per
rentable square foot in effect from time to time
applicable to the original of the Demised Premises
(before giving effect to any abatement or
apportionment of such Fixed Rent).
SECTION 40.07. Upon demand of Owner, Tenant will execute and
deliver to Owner an instrument in form satisfactory to Owner stating whether or
not Tenant has exercised the option contained in this Article and if Tenant has
exercised such option setting forth the effective commencement date of the term
applicable to the Additional Space and the Fixed Rent applicable to the
Additional Space. However, neither the failure of Owner to demand the execution
and delivery of such instrument nor the failure of Tenant to execute and deliver
such instrument shall vitiate the provisions of this Article.
ARTICLE 41
TENANT'S SINGLE TERMINATION OPTION
SECTION 41.01. For the purposes of this Section, the
"Notification Date" shall mean the date upon which Owner shall have notified
Tenant that at least 75,000 rentable square feet in the Building have been
leased to tenants pursuant to bona fide executed leases (whether or not the
tenants or occupants thereof are actually then in occupancy of the premises
demised in their leases) provided the notification by Owner to Tenant is true.
If the Notification Date has not yet occurred by January 1, 1998, then Tenant
shall have the single option, exercisable by notice to Owner on or prior to
February 1, 1998, to terminate this Lease as of June 30, 1998 provided (i) this
Lease has not been terminated previously pursuant to the provisions of this
Lease or pursuant to law and (ii) Tenant is not then in default under any of the
terms, covenants or conditions of this Lease on Tenant's part to be observed or
performed beyond the applicable grace period provided in this Lease for the
curing of such default. In the event Tenant shall give such notice of
termination pursuant to the provisions of this Section and shall otherwise
comply with the conditions of the exercise of Tenant's right to terminate this
Lease, this Lease and the Demised Term shall come to an end and expire on June
30, 1998 with the same force and effect as though June 30, 1998 were the
Expiration Date, unless sooner terminated pursuant to any other term, covenant
or condition of this Lease or pursuant to law. Notwithstanding anything to the
contrary set forth in this Section, in the event that the Notification Date
shall have occurred prior to the date upon which Tenant shall have exercised
Tenant's option to terminate this Lease as hereinabove provided, then thereupon
the option set forth in this Section shall be null and void and of no further
force and effect and Tenant shall have no further option under the provisions of
this Article. The fact that, subsequent to the Notification Date, less than
75,000 rentable square feet in the Building are leased to tenants pursuant to
bona fide executed leases (whether or not the tenants or occupants thereof are
actually then in occupancy of the premises demised in their leases) shall
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not affect the validity of the Notification Date or the fact that Tenant's
option set forth in this Section is of no further force and effect.
SECTION 41.02. Time is of the essence with respect to the
Notification Date and the exercise by Tenant of the option to terminate this
Lease in accordance with the provisions of Section 41.02 and any Notification
Date occurring after January 1, 1998 and any exercise by Tenant of the option
set forth in Section 41.01 after February 1, 1998 shall be void and of no force
and effect.
SECTION 41.03. Upon request of Tenant Owner shall deliver to
Tenant not more frequently than once every six (6) months a status report as to
the number of rentable square feet in the Building then leased to tenants
pursuant to bona fide executed leases. Owner's obligation under this Section
shall no longer apply after the earlier of the Notification Date or February 1,
1998.
SECTION 41.04. Upon request of either party, from time to
time, the parties will execute and deliver to each other an instrument, in form
reasonably satisfactory to both parties, stating that Tenant has not exercised
the option contained in Section 41.01 or that Tenant has exercised the option
contained in Section 41.01 or that the option contained in Section 41.01 is of
no further force and effect, as the ease may be. Failure of either party to
request the execution and delivery of such instrument or failure of either party
to execute such instrument, however, shall not vitiate the foregoing provisions
of this Article.
ARTICLE 42
SATELLITE DISH
SECTION 42.01. In the event that and as long as Owner installs
a master satellite dish ("Master Satellite Dish") in the Building, Owner shall
permit Tenant to connect to the Master Satellite Dish, upon payment to Owner of
any reasonable and competitive charges (in similar work and services in the
Borough of Manhattan) imposed by Owner in connection with the connection to and
use of the Master Satellite Dish. Tenant's cables connecting to the Master
Satellite Dish shall run through such conduits, pipes and shafts in the Building
designated by Owner. Tenant shall comply with all reasonable rules and
regulations imposed by Owner from time to time with respect to the use of the
Master Satellite Dish provided that ail such rules and regulations shall be
applied in a nondiscriminatory fashion with Tenant given "most favored nation
status" with respect to any rules and regulations and connection to and use of
the Master Satellite Dish (with appropriate adjustment based on the number of
square feet of the Demised Premises). Owner agrees to operate and maintain in
good condition the Master Satellite Dish throughout the period of Tenant's
connection thereto and make all repairs and replacements thereto as and when
needed.
SECTION 42.02. In the event that Owner does not install the
Master Satellite Dish on the roof of the Building or discontinues such Master
Satellite Dish, Tenant shall have the right to install (i) a Tenant's satellite
dish ("Tenant's Satellite Dish") of a size approved by Owner on the roof of the
Building, such approval not to be unreasonably withheld or delayed, the exact
location of which shall be designated by Owner, and (ii) cables connecting
Tenant's Satellite Dish to equipment in the Demised Premises running through
conduits, pipes or shafts
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in the Building, the exact location of which shall be designated by Owner. All
of the foregoing installations shall be made at Tenant's sole cost and expense
and in accordance with all the provisions of this Lease, including, but not
limited to, the provisions of Article 3 and Article 6. Owner shall have no
responsibility for the maintenance and repair of any such installations and
Tenant, at Tenant's sole cost and expense, shall keep all said installations in
good condition and make all necessary repairs and replacements thereto and to
the Building occasioned thereby. Upon the Expiration Date or sooner termination
of the Demised Term, or if required by any applicable governmental authorities,
or if Owner installs the Master Satellite Dish, Tenant, at Tenant's sole cost
and expense, shall, upon request of Owner, remove such installations and make
all repairs to the Building occasioned by such removal. Any of the foregoing
installations shall be subject to such conditions with respect to such
installations and the maintenance thereof as may reasonably be imposed by Owner
with Tenant entitled to "most favored nation status" with respect to such
conditions (with appropriate adjustment based on the number of square feet in
the Demised Premises). At Owner's election, such installations shall be made on
behalf of Tenant by Owner or a contractor or contractors designated by Owner
which contractors shall charge competitive prices for similar work in the
Borough of Manhattan in either event, at Tenant's sole cost and expense. Tenant
agrees that Tenant's Satellite Dish shall be designed in such a manner that it
shall not interfere with any other telecommunication equipment or satellite
dishes on the roof of the Building and all other tenants of the Building shall
be deemed third parry beneficiaries of the foregoing provision with the right to
enforce the same. Owner will cause a provision to the same effect to be included
in any other future lease of space in the Building or in any future agreement,
or consent, as the case may be, in which a tenant is given the right to install
similar equipment on the roof of the Building and all other tenants of the
Building, including Tenant, shall be deemed third party beneficiaries of such
provision with the right to enforce the same; in enforcing any such rights
Tenant may commence an action or proceeding in Owner's name, provided Owner
incurs no expense therefor and Tenant indemnifies Owner from all loss, cost,
liability, damage and expense, including, but not limited to, reasonable counsel
fees and disbursements, arising from any such action or proceeding; Owner
agrees, however, at no cost to Owner, to cooperate with Tenant with respect to
any such action or proceeding. Owner shall have no obligation to enforce any
such provision and no breach by any other tenant of the Building of its
obligations under said provision or resulting interference with Tenant's
Satellite Dish shall be deemed to constitute an actual or constructive eviction,
in whole or in part, or entitle Tenant to any abatement or diminution of rent,
or relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Owner or its agents by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business or otherwise.
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IN WITNESS WHEREOF, Owner and Tenant have respectively signed
and sealed this Lease as of the day and year first above written.
00 XXXXX XXXXXX COMPANY
Witness:
______________________________ By:________________________________
Owner
Name:
Title: Partner
N2K INC.
Witness:
Attest:
______________________________ By:________________________________
Tenant
Name:
Title:
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SCHEDULE A
BUILDING RULES
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls of the Building shall not be obstructed or
encumbered or used for any purpose other than ingress and egress to and from the
premises demised to any tenant or occupant. Any tenant whose premises are
situate on the ground floor of the Building shall, at said tenant's own expense,
keep the sidewalks and curb directly in front of said premises clean and free
from ice and snow.
2. No awnings or other projections shall be attached to the outside
walls or windows of the Building without the prior consent of Owner. No
curtains, blinds, shades, or screens shall be attached to or hung in, or used in
connection with, any window or door of the premises demised to any tenant or
occupant, without the prior consent of Owner. Such awnings, projections,
curtains, blinds, shades, screens or other fixtures must be of a quality, type,
design and color, and attached in a manner, approved by Owner.
3. No sign, advertisement, object, notice or other lettering shall be
exhibited, inscribed, painted or affixed on any part of the outside or inside of
the premises demised to any tenant or occupant of the Building without the prior
consent of Owner. Interior signs on doors and directory tablets, if any, shall
be of a size, color and style approved by Owner.
4. The sashes, sash doors, skylights, windows, and doors that reflect
or admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed, nor shall any bottles, parcels, or
other articles be placed on any window xxxxx.
5. No showcases or other articles shall be put in front of or affixed
to any part of the exterior of the Building, nor placed in the halls, corridors,
vestibules or other public parts of the Building.
6. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. No tenant
shall bring or keep, or permit to be brought or kept, any inflammable,
combustible or explosive fluid, material, chemical or substance in or about the
premises demised to such tenant.
7. No tenant or occupant shall xxxx, paint, doll into, or in any way
deface any part of the Building or the premises demised to such tenant or
occupant. No boring, cutting or stringing of wires shad be permitted, except
with the prior consent of Owner, and as Owner may direct. No tenant or occupant
shall install any resilient tile or similar floor covering in the premises
demised to such tenant or occupant except in a manner approved by Owner.
8. No bicycles, vehicles or animals of any kind shall be brought into
or kept in or about the premises demised to any tenant. No cooking shall be done
or permitted in the Building by any tenant without the approval of Owner. No
tenant shall cause or permit any unusual or objectionable odors to emanate from
the premises demised to such tenant.
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9. No space in the Building shall be used for manufacturing, for the
storage of merchandise, or for the sale of merchandise, goods or property of any
kind at auction.
10. No tenant shall make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with other tenants or occupants of the
Building or neighboring buildings or premises whether by the use of any musical
instrument, radio, television set or other audio device, unmusical noise,
whistling, singing, or in any other way. Nothing shall be thrown out of any
doors or windows.
11. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows, nor shall any changes be made in locks or the mechanism
thereof. Each tenant must, upon the termination of its tenancy, restore to Owner
all keys of stores, offices and toilet rooms, either furnished to, or otherwise
procured by, such tenant.
12. All removals from the Building, or the carrying in or out of the
Building or the premises demised to any tenant, of any safes, freight, furniture
or bulky matter of any description must take place at such time and in such
manner as Owner or its agents may determine, from time to time. Owner reserves
the right to inspect all freight to be brought into the Building and to exclude
from the Building all freight which violates any of the Building Rules or the
provisions of such tenant's lease.
13. No tenant shall use or occupy, or permit any portion of the
premises demised to such tenant to be used or occupied, as an office for a
public stenographer or typist, or as a xxxxxx or manicure shop, or as an
employment bureau. No tenant or occupant shall engage or pay any employees in
the Building, except those actually working for such tenant or occupant in the
Building, nor advertise for laborers, giving an address at the Building.
14. No tenant or occupant shall purchase spring water, ice, food,
beverage, lighting maintenance, cleaning, towels, or other like service, from
any company or persons not approved by Owner, such approval not unreasonably to
be withheld.
15. Owner shall have the right to prohibit any advertising by any
tenant or occupant which, in Owner's opinion, tends to impair the reputation of
the Building or its desirability as a building for offices, and upon notice from
Owner, such tenant or occupant shall refrain from or discontinue such
advertising.
16. Owner reserves the right to exclude from the Building, between the
hours of 6 P.M. and 8 A.M. on business days and at all hours on Saturdays,
Sundays and holidays, all persons who do not present a pass to the Building
signed by Owner. Owner will furnish passes to persons for whom any tenant
requests such passes. Each tenant shall be responsible for all persons for whom
it requests such passes and shall be liable to Owner for all acts of such
persons.
17. Each tenant, before closing and leaving the premises demised to
such tenant at any time, shall see that all entrance doors are locked and all
windows closed.
18. Each tenant shall, at its expense, provide artificial light in the
premises demised to such tenant for Owner's agents, contractors and employees
while performing janitorial or other cleaning services and making repairs or
alterations in said premises.
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00. No premises shall be used, or permitted to be used, for lodging or
sleeping or for any immoral or illegal purpose.
20. The requirements of tenants will be attended to only upon
application at the office of Owner. Building employees shall not be required to
perform, and shall not be requested by any tenant or occupant to perform, any
work outside of their regular duties, unless under specific instructions from
the office of Owner.
21. Canvassing, soliciting and peddling in the Building are prohibited
and each tenant and occupant shall cooperate in seeking their prevention.
22. There shall not be used in the Building, either by any tenant or
occupant or by their agents or contractors, in the delivery or receipt of
merchandise, freight or other matter, any hand trucks or other means of
conveyance except those equipped with rubber tires, rubber side guards and such
other safeguards as Owner may require.
23. If the premises demised to any tenant become infested with vermin,
such tenant, at its sole cost and expense, shall cause its premises to be
exterminated, from time to time, to the satisfaction of Owner, and shall employ
such exterminators therefor as shall be approved by Owner.
24. No premises shall be used, or permitted to be used, at any time, as
a store for the sale or display of goods, wares or merchandise of any kind, or
as a restaurant, shop, booth, bootblack or other stand; or for the conduct of
any business or occupation which predominately involves direct patronage of the
general public in the premises demised to such tenant, or for manufacturing or
for other similar purposes.
25. No tenant shall clean, or permit to be cleaned, any window of the
Building from the outside in violation of Section 202 of the New York Labor Law
or any successor law or statute, or of the rules of the Board of Standards and
Appeals or of any board or body having or asserting jurisdiction.
26. No tenant shall move, or permit to be moved, into or out of the
Building or the premises demised to such tenant, any heavy or bulky matter,
without the specific approval of Owner. If any such matter requires special
handling, only a person holding a Master Rigger's license shall be employed to
perform such special handling. No tenant shall place, or permit to be placed, on
any part of the floor or floors of the premises demised to such tenant, a load
exceeding the floor load per square foot which such floor was designed to carry
and which is allowed by law. Owner reserves the right to prescribe the weight
and position of safes and other heavy matter, which must be placed so as to
distribute the weight.
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ADDENDUM A
OWNER'S INITIAL CONSTRUCTION
I. Owner agrees to supply and install in the Demised Premises all of
the items set forth on Tenant's Plan referred to in Paragraph IV of this
Schedule unless prevented by job conditions or other circumstances beyond the
reasonable control of Owner. In consideration of the performance of such work by
Owner, Tenant shall pay to Owner, from time to time upon demand, whether or not
the Demised Term shall have commenced, a sum (referred to as "Tenant's
Construction Sum") equal to the amount, if any, by which the aggregate of: (a)
the actual cost and expense to Owner of supplying and installing all of the
items set forth on Tenant's Plan (including, but not limited to, the cost to
Owner of a field superintendent, operating engineer, laborers, freight elevator
costs, rubbish removal, temporary sprinklers and lighting, electric and heat,
protection, insurance, Building Department filing and expediting, Building
permits, any other governmental approvals, blueprint costs and every other item
which customarily would be considered a general condition and any construction
management or other fees paid to the general contractor or construction manager
who is performing Owner's Initial Construction) shall exceed the sum of FOUR
HUNDRED SIXTY-SIX THOUSAND ONE HUNDRED SIXTY-FIVE and 00/100 ($466,165.00)
DOLLARS. In the event that said sum of FOUR HUNDRED SIXTY-SIX THOUSAND ONE
HUNDRED SIXTY-FIVE and 00/100 ($466,165.00) DOLLARS shall be in excess of the
aggregate amounts set forth in subdivision (a) above, Tenant shall be entitled
to apply such excess against any of Tenant's architects, engineers or designers
fees incurred by Tenant in connection with Owner's Initial Construction and the
cost of any moving expenses and telecommunications and telephone systems
installed in the Demised Premises. In the event that any further excess remains
after such application Tenant shall not be entitled to any such further excess.
Any such sums due Owner shall be payable by Tenant to Owner, from time to time
whether or not the Demised Term shall have commenced, within five (5) days next
following the rendition of a statement therefor by Owner to Tenant. Tenant shall
furnish to Owner security satisfactory to Owner in an amount at least equal to
Owner's estimate of Tenant's Construction Sum within five (5) days after demand
by Owner therefor. In the event Owner's estimate of the amount of Tenant's
Construction Sum is increased, then Tenant shall increase the amount of such
security to an amount at least equal to such revised increased estimate of
Tenant's Construction Sum, within five (5) days after demand therefor by Owner.
In connection with Owner's Initial Construction, Owner agrees to employ
competitive bidding and to promptly submit copies of all bids to Tenant and to
engage the lowest responsible bidder in each category after advising Tenant of
the bidder selected and, if such bidder is not the lowest bidder, then the
reason for such selection. Tenant and its architect shall be permitted to
participate in the bidding process and awarding of all Contracts.
II. The work and installations required to be performed and made by
Owner pursuant to the provisions of Paragraph I of this Schedule shall be equal
to standards adopted by Owner for the Building. Owner's Initial Construction
shall constitute a single nonrecurring obligation on the part of Owner. In the
event the Lease is renewed or extended for a further term by agreement or
operation of law, Owner's obligation to perform Owner's Initial Construction
shall not apply to any such renewal or extension.
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III. Subject to the provisions of Paragraphs IV(4) and VI of this
Schedule, Owner's Initial Construction shall be substantially completed prior to
the Commencement Date. At any time after such substantial completion, Owner may
enter the Demised Premises to complete unfinished details of Owner's Initial
Construction and entry by Owner, its agents, servants, employees or contractors
for such purpose shall not constitute an actual or constructive eviction, in
whole or in part, or entitle Tenant to any abatement or diminution of rent or
relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Owner or its agents by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business, or otherwise.
IV. (1) Tenant has submitted to Owner a complete set of detailed
plans and specifications (referred to as "Tenant's Plan") for those Alterations
to the Demised Premises which Tenant desires Owner to perform as Owner's Initial
Construction. Copies of Tenant's Plan have been initialled by Owner and Tenant
and Owner has approved Tenant's Plan with the conditions set forth therein, if
any. Tenant's Plan consists substantially of the drawings indicated on the
letter of Tenant's architects annexed hereto as Exhibit 4. Tenant agrees that
any revisions to Tenant's Plan shall be signed, certified and sealed by a
registered architect, and, if required, engineer, duly licensed in the State of
New York and approved by Owner, such approval not to be unreasonably withheld,
so that Tenant's Plan and any revisions thereto may be filed with, and approved
by, the Department of Buildings of the City of New York.
(2) At or about the time that Owner performs Owner's Initial
Construction, Owner shall, at Owner's expense, supply and install a single
unisex toilet located outside the Demised Premises adjacent to the core toilets
on the floor, where designated by Owner. The supply and installation of such
unisex toilet shall not affect the substantial completion of Owner's Initial
Completion or the Commencement Date. Owner's Initial Construction shall be
performed in accordance with all Legal Requirements including, but not limited
to, the provisions of the Americans With Disabilities Act.
(3) In the event substantial completion of Owner's Initial
Construction shall be delayed by reason of Tenant's unreasonable delays in
submitting any other plans or specifications, or in supplying information, or in
approving plans or specifications or estimates, or in giving authorizations or
by reason of any Change Work (as hereinafter defined) or by reason of any other
similar acts or omissions of Tenant, then, in such event, Tenant agrees to pay
to Owner, as agreed liquidated damages for Tenant's failures aforesaid or for
such delays occasioned by Tenant's acts or omissions, as the case may be, sums
equal to one (1) day's rent applicable to the Second Rent Period for each day
that such failure or delay shall continue.
(4) Tenant, after the submission of Tenant Plan, may
designate, subject to Owner's approval, not unreasonably to be withheld,
substitute or additional work, materials or installations (referred to,
collectively, as "Change Work") to be supplied and installed by Owner in
replacement of, or in addition to, the work, materials and installations set
forth on Tenant's Plan provided that such Change Work; (i) is in compliance with
the provisions of Articles 3 and 6 of the Lease; (ii) is practical and
consistent with the physical conditions in the Building and with the plans for
the Building filed with the Department of Buildings of the City of New York:
(iii) will not impair Owner's ability to perform any of Owner's obligations
under the provisions of the Lease; (iv) will not affect any portions of the
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Building other than the Demised Premises; (v) complies with the provisions of
Section 29.05; (vi) shall (a) be signed, sealed and certified by a registered
architect and, if applicable, engineer duly licensed in the State of New York
and (b) comply with all applicable laws, orders, rules and regulations of
governmental authorities so that Tenant's Plan may without further amendment or
change be used for engineering drawings and specifications and filed with and
approved by the Department of Buildings of the City of New York; (vii) will not
tend to delay completion of Owner's Initial Construction; (viii) shall not
designate any area which shall have an electrical load in excess of four (4)
xxxxx per square foot of usable area for all purposes (including lighting and
power) or which shall have a human occupancy factor in excess of one (1) person
per one hundred (100) square feet of usable area; and (ix) is practical and
consistent with Tenant's Plan and does not represent a material change thereof.
At or about the time of the submission by Tenant to Owner of any Change Work, if
it appears to Owner that any item of Change Work designated by Tenant will tend
to delay completion of Owner's Initial Construction, or, notwithstanding Owner's
approval of any Change Work, if it subsequently appears to Owner that any item
of Change Work designated by Tenant will tend to delay completion of Owner's
Initial Construction, Owner in each case shall notify Tenant to that effect and
Tenant, within five (5) days after notice from Owner to that effect, will
designate, subject to the foregoing limitations (i) through (viii), other
available items of Change Work which will not so tend to delay completion. If
Tenant fails to make such designations within five (5) days after said notice
from Owner, Owner will have no obligation to supply or install the items set
forth m such Owner's notice or, at Owner's election, owner shall have the right
to perform such items of Change Work in accordance with the provisions of this
Schedule, except that, solely for the "purpose of determining whether or not
Owner's Initial Construction has been substantially completed and for the
purpose of fixing the Commencement Date, such items of Change Work and all other
related work and installations shall be deemed unfinished details of Owner's
Initial Construction which may be performed after the Commencement Date in
accordance with the provisions of Paragraph III of this Schedule and,
accordingly, shall not affect the Commencement Date.
V. INTENTIONALLY DELETED
VI. The approval of Tenant's Plan has stated which items
contained in Tenant's Plan, if any, will or might be subject to certain delays
in delivery and which might affect the date of substantial completion of Owner's
Initial Construction. Tenant may, within five (5) days after such notice from
Owner, designate, subject to the limitations (i) through (ix) set forth in
subparagraph (4) of Paragraph IV, other available items which will not be
subject to delays in delivery. If Tenant fails to timely make such designations,
Owner will have no obligation to supply or install the items set forth in such
Owner's notice or, at Owner's election, Owner shall have the right to perform
such items and for the purpose of determining whether or not Owner's Initial
Construction shall have been substantially completed and for the purpose of
fixing the Commencement Date, said items set forth in such notice and all other
related work and installations (sometimes hereinafter referred to collectively
as "Long Lead Items") shall be deemed unfinished details of Owner's Initial
Construction which may be performed by Owner after the substantial completion of
Owner's Initial Construction in accordance with the provisions of Paragraph III
of this Schedule and, accordingly, shall not affect the Commencement Date. Owner
and Tenant agree that notwithstanding anything to the contrary set forth in the
provisions of this Schedule the supply and installation of (the internal
stairway connecting the portions of the Demised Premises and different floors
shall be deemed a Long Lead Item.
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VII. In the event that the Commencement Date shall not have
occurred by December 22, 1995, as said date may be extended pursuant to the
provisions of this Paragraph VII, then Owner shall pay to Tenant a sum equal to
(a) ONE THOUSAND FOUR HUNDRED TWENTY-EIGHT and 57/100 DOLLARS ($1,428.57)
multiplied by (b) the number of days occurring between December 22, 1995 and the
later date immediately preceding the Commencement Date, both dates inclusive. At
Tenant's election such sum may be given to Tenant as a rent credit under the
Lease. The date December 22, 1995 set forth in this Section shall be extended by
a period equal to the aggregate of (i) the number of days, if any, of delays in
substantial completion of Owner's Initial Construction occasioned by reason of
Tenant's delays in submitting any other plans and specifications or in supplying
information, or in approving plans, specifications or estimates, or in giving
authorizations or by reason of any Change Work or by reason of any similar acts
or omissions of Tenant plus (ii) the number of days, if any, of delay or delays
in substantial completion of Owner's Initial Construction occasioned by reason
of strikes or other labor disputes, fire or other casualty (or reasonable delays
in adjustment of insurance), accidents, orders or regulations of any adjustment
of insurance) accidents, orders or regulations of any Federal, State, County or
Municipal authority, or by any other cause beyond Owner's control, whether or
not such other cause shall be similar in nature to those hereinbefore
enumerated.
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Exhibit 1
[Diagrams of Leased Space]
89
Exhibit 2
[Diagrams of Leased Space]
90
Exhibit 3
[Diagrams of Leased Space]
91
FIRST ADDITIONAL SPACE AGREEMENT
AGREEMENT made as of the 1st day of April, 1996 between 00
XXXXX XXXXXX COMPANY, a New York partnership having its principal office at 000
Xxxx Xxxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New York, as
landlord (referred to herein as "Owner"), and N2K INC., a Pennsylvania
corporation having an office at 00 Xxxxx Xxxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx,
Xxxxxx and State of New York, as tenant (referred to herein as "Tenant").
WITNESSETH:
WHEREAS:
(1) Under date of September 7, 1995, Owner and N2K,
Inc., a New York corporation, Tenant's predecessor-in-interest, entered into a
lease affecting portions of the tenth (10th) and eleventh (11th) floors in the
building (referred to herein as the "Building") known as 00 Xxxxx Xxxxxx,
Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New York; and
(2) N2K, Inc., a New York corporation, merged into
Tenant by statutory merger effective February 13, 1996; and
(3) Said lease, as modified by written agreement dated
December 31, 1995, is for a term (referred to herein as the "Demised Term")
which shall end on May 31, 2001, unless sooner terminated or extended pursuant
to any of the terms, covenants or conditions of said lease or pursuant to law,
and is referred to herein as the "Lease"; and the premises so leased to Tenant
pursuant to the provisions of the Lease, together with all appurtenances,
fixtures, improvements, additions and other property attached thereto or
installed therein at any time during the Demised Term other than Tenant's
Personal Property (as defined in the Lease), are referred to herein,
collectively, as the "Demised Premises"; and
92
(4) Tenant now desires to lease and add to the Demised
Premises that portion of the eleventh (11th) floor of the Building as shown on
Exhibit "1", initialled by the parties, which is annexed hereto and made part
hereof, and Owner is willing to lease said portion of the eleventh (11th) floor
to Tenant, subject to the provisions of this Agreement (said portion of the
eleventh (11th) floor of the Building, together with all appurtenances,
fixtures, improvements, additions and other property attached thereto or
installed therein at any time during the Demised Term, other than Tenant's
Personal Property as defined in the Lease, is referred to herein as the
"Additional Space"); and
(5) The Demised Term of the Lease applicable to the
Additional Space shall commence on a date (referred to as the "Additional Space
Commencement Date") fixed by Owner in a notice to Tenant, not sooner than ten
(10) days next following the date of the giving of such notice, which notice
shall state that Owner has, or prior to the Additional Space Commencement Date
will have, substantially completed Owner's Additional Construction (as
hereinafter defined); and
(6) All capitalized terms shall have the same meanings
ascribed to them in the Lease, unless otherwise set forth herein; and
(7) The parties desire to record herein their
understandings with respect to the foregoing.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties agree as follows:
FIRST: The Lease is hereby modified as follows:
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A. Owner hereby leases to Tenant and Tenant hereby
hires from Owner the Additional Space for a term to commence upon the
Additional Space Commencement Date and to end on the Expiration Date (as it may
be extended pursuant to the provisions of this Agreement or the Lease), unless
the Demised Term shall sooner terminate pursuant to any of the terms, covenants
or conditions of the Lease or pursuant to law.
B. Owner agrees to perform work and make
installations in the Additional Space as set forth in Addendum A. Such work
and installations are referred to as "Owner's Additional Construction". All of
the terms, covenants and conditions of Addendum A are incorporated in this
agreement by reference and shall be deemed a part of this agreement as though
fully set forth in the body of this agreement.
C. From and after the Additional Space Commencement
Date, the Lease shall be deemed modified, as follows:
(1) The Demised Premises shall include the
Additional Space for all purposes of the Lease;
(2) a. The Fixed Rent reserved in the Lease shall be
increased by FORTY TWO THOUSAND and 00/100 ($42,000) DOLLARS
per annum with respect to the period ("First Additional Space
Rent Period A") from the Additional Space Commencement Date to
the date 365 days next following the Additional Space
Commencement Date, SEVENTY TWO THOUSAND and 00/100 ($72,000)
DOLLARS per annum with respect to the period ("First
Additional Space Rent Period B") from the date next following
the expiration of First Additional Space Rent Period A to
December 31, 1997, and EIGHTY THOUSAND and 00/100 ($80,000)
DOLLARS per annum with respect to the remainder of the Demised
Term ("First Additional Space Rent Period C").
b. In the event that the Additional Space
Commencement Date shall occur on a date other than the first
(lst) day of any calendar month, then the increase in the
Fixed Rent for the month in which the Additional Space
Commencement Date shall occur shall be prorated.
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(3) The Demised Premises Area, as set forth in
Section 23.01. shall be increased by 4,000 square feet.
(4) Section 29.05B of the Lease shall be modified to
the extent that wherever the figure "8,999" appears, the
figure "11,702" shall be substituted in lieu thereof; and
(5) Section 29.05F of the Lease shall be modified to
the extent that wherever the figure "twenty two and 40/100
(22.40%) percent" appears, the figure "forty seven and
79/100(47.79%) percent" shall be substituted in lieu thereof;
and
(6) The provisions of Article 40 (entitled "Tenant's
Right of First Offer For Additional Space") is hereby deemed
deleted from the Lease and of no further force and effect.
SECOND: In the event that the Demised Term of the Lease
applicable to the Additional Space shall be less than five (5) full years then
the Demised Term shall be automatically extended to the last day of the
calendar month in which the day immediately preceding the fifth (5th)
anniversary of the Additional Space Commencement Date shall occur, unless
sooner terminated pursuant to the provisions of the Lease or pursuant to law;
any such extension shall be upon all of the then applicable executory terms,
covenants and conditions set forth in the Lease (including, but not limited to,
the provisions of Articles 23 and 29).
THIRD: Owner and Tenant each represent and warrant to the
other that with the exception of Xxxxx Realty Company, Owner's consultant,
Xxxxxxxxxxx & Company, L.L.C. is the sole broker with whom either party has
negotiated or otherwise dealt with in connection with the Additional Space or
in bringing about this Agreement. Owner and Tenant shall indemnify each other
from all loss, cost, liability, damage and expenses, including, but not limited
to, reasonable counsel fees and disbursements, arising from any breach of the
foregoing representation and warranty. Owner shall pay any commission or
compensation due hereunder pursuant to a separate agreement with such broker.
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FOURTH: Except to the extent expressly modified by the
foregoing provisions of this Agreement, the Lease is hereby ratified and
confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto have here unto set
their hands and seals as of the day and year first above written,
00 XXXXX XXXXXX COMPANY, Owner
BY: /s/ XXXXX XXXXX
-------------------------------
Xxxxx Xxxxx, Partner
N2K Inc., Tenant
BY: /s/ XXXXXXXX X. XXXXXXX
--------------------------------
Xxxxxxxx X. Xxxxxxx, Vice Chairman
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00
XXXXX XX XXX XXXX)
ss:
COUNTY OF NEW YORK)
On the 12th day of April, 1996, before me personally came
Xxxxxxxx X. Xxxxxxx to me known, who, being by me duly sworn, did depose and
say that he resides at 0 X. 00xx Xx., XX, XX that he is the Vice Chairman of N2K
Inc., the corporation described in and which executed the foregoing instrument;
and that he signed his name thereto by authority of the Board of Directors of
said corporation.
/s/ XXXX X. XXXXXXXXXX
----------------------
Notary Public
XXXX X. XXXXXXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 00-0000000
QUALIFIED IN NEW YORK COUNTY
COMMISSION EXPIRES AUGUST 29, 1996
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ADDENDUM A
OWNER'S ADDITIONAL CONSTRUCTION
I. Owner agrees to supply and install in the
Additional Space all of the items set forth on Tenant's Additional Plan
referred to in Paragraph IV of this Schedule unless prevented by job conditions
or other circumstances beyond the reasonable control of Owner. In
consideration of the performance of such work by Owner, Tenant shall pay to
Owner, from time to time upon demand, whether or not the Additional Space
Commencement Date shall have occurred, a sum (referred to as "Tenant's
Additional Construction Sum") equal to the amount, if any, by which the
aggregate of: (a) the actual cost and expense to Owner of supplying and
installing all of the items set forth on Tenant's Additional Plan (including,
but not limited to, the cost to Owner of a field superintendent, operating
engineer, laborers, freight elevator costs, rubbish removal, temporary
sprinklers and lighting, electric and heat, protection, insurance, Building
Department filing and expediting, Building permits, any other governmental
approvals, blueprint costs and every other item which customarily would be
considered a general condition and, if applicable, any construction management
or other fees paid to the general contractor or construction manager who is
performing Owner's Additional Construction) (such aggregate actual cost and
expense is referred to as "Owner Construction Cost") plus (b) if there is no
general contractor or construction manager who is performing Owner's
Additional Construction, ten (10%) percent of Owner's Construction Cost for
office overhead and as a construction management fee, shall exceed (c) the sum
of ONE HUNDRED FORTY THOUSAND AND 00/100 $140,000.00) DOLLARS. In the event
that said sum of ONE HUNDRED FORTY THOUSAND AND 00/100 $140,000.00) DOLLARS
shall be in excess of the aggregate amounts set forth in subdivision (a) and if
applicable, (b) above, Tenant shall be entitled to apply such excess against
any of Tenant's architects, engineers or designers fees incurred by Tenant in
connection with Owner's Additional Construction and the cost of any moving
expenses and telecommunications and telephone systems installed in the Demised
Premises. In the event that any further excess remains after such application
Tenant shall not be entitled to any such further excess. Any such sums due
Owner shall be payable by Tenant to Owner, from time to time whether or not the
Additional Space Commencement Date shall have occurred, within five (5) days
next following the rendition of a statement therefor by Owner to Tenant.
Tenant shall furnish to Owner security satisfactory to Owner in an amount at
least equal to Owner's estimate of Tenant's Additional Construction Sum within
five (5) days after demand by Owner therefor. In the event Owner's estimate of
the amount of Tenant's Additional Construction Sum is increased, then Tenant
shall increase the amount of such security to an amount at least equal to such
revised increased estimate of Tenant's Additional Construction Sum, within five
(5) days after demand therefor by Owner. In connection with Owner's Additional
Construction, Owner agrees to employ competitive bidding and to promptly submit
copies of all bids to Tenant and to engage the lowest responsible bidder in
each category after advising Tenant of the bidder selected and, if such bidder
is not the lowest bidder, then the reason for such selection. Tenant and its
architect shall be permitted to participate in the bidding process and awarding
of all contracts.
II. The work and installations required to be
performed and made by Owner pursuant to the provisions of Paragraph I of this
Schedule shall be equal to standards adopted by Owner for the Building. Owner's
Additional Construction shall constitute a single non-recurring obligation on
the part of Owner. In the event the Lease is renewed or extended for a further
term by agreement or operation of law, Owner's obligation to perform Owner's
Additional Construction shall not apply to any
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such renewal or extension.
III. Subject to the provisions of Paragraphs IV(4) and VI of
this Schedule, Owner's Additional Construction shall be substantially completed
prior to the Additional Space Commencement Date. At any time after such
substantial completion, Owner may enter the Demised Premises to complete
unfinished details of Owner's Additional Construction and entry by Owner, its
agents, servants, employees or contractors for such purpose shall not
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Owner or its agents
by reason of inconvenience or annoyance to Tenant, or injury to or interruption
of Tenant's business, or otherwise.
IV.(1) On or prior to April 22, 1996, Tenant, at Tenant's sole
cost and expense, shall prepare and submit to Owner a complete set of detailed
plans and specifications (referred to as "Tenant's Additional Plan") for those
Alterations to the Additional Space which Tenant desires Owner to perform as
Owner's Additional Construction. Tenant's Additional Plan shall include, but
shall not be limited to, engineering plans and specifications and Tenant's
Additional Plan shall indicate the heat factor, if any, of all equipment
intended to be used in, and the human load factor proposed for, each room or
other area. All engineering drawings and specifications in connection with
Tenant's Additional Plan (mechanical, electrical, plumbing, etc.) shall be
prepared by licensed professional engineers, at Tenant's expense, selected by
Tenant from a list of engineers submitted by Owner. Tenant's Additional Plan
shall not designate any area which shall have an electrical load in excess of
four (4) xxxxx per square foot of usable area for all purposes (including
lighting and power) or which shall have a human occupancy factor in excess of
one (1) person per one hundred (100) square feet of usable area (the average
electrical load and human occupancy factors for which the Building's HVAC
systems have been designed). Tenant's Additional Plan shall not designate any
work, materials or installations which (i) are not in compliance with the
provisions of Articles 3 and 6 of the Lease; (ii) are not practical and
consistent with the physical conditions in the Building and with the plans for
the Building filed with the Department of Buildings of the City of New York;
(iii) will impair Owner's ability to perform any of Owner's obligations under
the provisions of the Lease; (iv) will affect any portions of the Building
other than the Demised Premises; or (v) does not comply with the provisions of
Section 29.05, Tenant agrees that Tenant's Additional Plan and any revisions
thereto shall be, signed, certified and sealed by a registered architect, and,
if required, engineer, duly licensed in the State of New York and approved by
Owner, such approval not to be unreasonably withheld, so that Tenant's
Additional Plan and any revisions thereto may be filed with, and approved by,
the Department of Buildings of the City of New York.
Tenant's Additional Plan shall designate a sprinkler system,
and, accordingly, shall designate, subject to compliance with all laws, orders
and regulations of all governmental authorities having jurisdiction, the
location of sprinkler heads and associated piping. Tenant's Additional Plan
also shall designate all work in the Additional Space which is required so that
the Additional Space shall comply with all applicable provisions of the
Americans With Disabilities Act and Local Law #58. Owner's Additional
Construction shall be performed in accordance with all Legal Requirements
including, but not limited to, the provisions of the Americans With
Disabilities Act.
(2) Tenant's Additional Plan shall be subject to Owner's
approval, which Owner agrees not unreasonably to withhold or delay. Owner's
approval of Tenant's Additional Plan shall not, unless expressly set forth in
such approval, be deemed to authorize Tenant to make any Alterations
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in or about the Additional Space.
(3) In the event (i) Tenant on or prior to April 22, 1996,
shall fail to submit to Owner a Tenant's Additional Plan which shall meet with
Owner's approval, or (ii) substantial completion of Owner's Additional
Construction shall be delayed by reason of Tenant's unreasonable delays in
submitting any other plans or specifications, or in supplying information, or
in approving plans or specifications or estimates, or in giving authorizations
or by reason of any Change Work (as hereinafter defined) or by reason of any
other similar acts or omissions of Tenant, then, in such event, Tenant agrees
to pay to Owner, as agreed liquidated damages for Tenant's failures aforesaid
or for such delays occasioned by Tenant's acts or omissions, as the case may
be, sums equal to one (1) day's rent applicable to the Additional Space for the
first period of rent applicable thereto for each day that such failure or delay
shall continue.
(4) Tenant, after the submission of Tenant's Additional
Plan, may designate, subject to Owner's approval, not unreasonably to be
withheld, substitute or additional work, materials or installations (referred
to, collectively as "Change Work") to be supplied and installed by Owner in
replacement of, or in addition to, the work, materials and installations set
forth on Tenant's Additional Plan provided that such Change Work: (i) is in
compliance with the provisions of Articles 3 and 6 of the Lease; (ii) is
practical and consistent with the physical conditions in the Building and with
the plans for the Building filed with the Department of Buildings of the City
of New York; (iii) will not impair Owner's ability to perform any of Owner's
obligations under the provisions of the Lease; (iv) will not affect any
portions of the Building other than the Demised Premises; (v) complies with the
provisions of Section 29.05; (vi) shall (a) be signed, sealed and certified by
a registered architect and, if applicable, engineer duly licensed in the State
of New York and (b) comply with all applicable laws, orders, rules and
regulations of governmental authorities so that Tenant's Additional Plan may
without further amendment or change be used for engineering drawings and
specifications and filed with and approved by the Department of Buildings of
the City of New York; (vii) will not tend to delay completion of Owner's
Additional Construction; and (viii) shall not designate any area which shall
have an electrical load in excess of four (4) xxxxx per square foot of usable
area for all purposes (including lighting and power) or which shall have a
human occupancy factor in excess of one (1) person per one hundred (100) square
feet of usable area. At or about the time of the submission by Tenant to Owner
of any Change Work if it appears to Owner that any item of Change Work
designated by Tenant will tend to delay completion of Owner's Additional
Construction, or, notwithstanding Owner's approval of any Change Work, if it
subsequently appears to Owner that any item of Change Work designated by Tenant
will tend to delay completion of Owner's Additional Construction, Owner in each
case shall notify Tenant to that effect and Tenant, within five (5) days after
notice from Owner to that effect, will designate, subject to the foregoing
limitations (i) through (viii), other available items of Change Work which will
not so tend to delay completion. If Tenant fails to make such designations
within five (5) days after said notice from Owner, Owner will have no
obligation to supply or install the items set forth in such Owner's notice or,
at Owner's election, Owner shall have the right to perform such items of Change
Work in accordance with the provisions of this Schedule, except that, solely
for the purpose of determining whether or not Owner's Additional Construction
has been substantially completed and for the purpose of fixing the Additional
Space Commencement Date, such item of Change Work and all other related work
and installations shall be deemed unfinished details of Owner's Additional
Construction which may be performed after the Additional Space Commencement
Date in accordance with the provisions of Paragraph III of this Schedule and,
accordingly, shall not affect the Additional Space Commencement Date.
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V. INTENTIONALLY DELETED
VI. At or about the time that Owner shall notify Tenant of
the approval of Tenant's Additional Plan, such notice of approval shall state
which items contained in Tenant's Additional Plan, if any, will or might be
subject to certain delays in delivery and which might affect the date of
substantial completion of Owner's Additional Construction. Tenant may, within
five (5) days after such notice from Owner, designate, subject to the
limitations (i) through (viii) set forth in subparagraph (4) of Paragraph IV,
other available items which will not be subject to delays in delivery. If
Tenant fails to timely make such designations, Owner will have no obligation to
supply or install the items set forth in such Owner's notice or, at Owner's
election, Owner shall have the right to perform such items and for the purpose
of determining whether or not Owner's Additional Construction shall have been
substantially completed and for the purpose of fixing the Additional Space
Commencement Date, said items set forth in such notice and all other related
work and installations (sometimes hereinafter referred to collectively as "Long
Lead Items") shall be deemed unfinished details of Owner's Additional
Construction which may be performed by Owner after the substantial completion
of Owner's Additional Construction in accordance with the provisions of
Paragraph III of this Schedule and, accordingly, shall not affect the
Additional Space Commencement Date.
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[FLOOR PLAN]
EXHIBIT 1
This floor plan of a portion of the eleventh (11th) floor of the Building
known as 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, is annexed to this Agreement and
is made a part hereof solely to delineate by outlining and diagonal markings
the Additional Space. All areas, dimensions, conditions and locations are
approximate.
102
SECOND ADDITIONAL SPACE AGREEMENT
AGREEMENT made as of the 2nd day of April, 1996 between 00
XXXXX XXXXXX COMPANY, a New York partnership having its principal office
at 000 Xxxx Xxxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New York,
as landlord (referred to herein as "Owner"), and N2K INC., a Pennsylvania
corporation having an office at 00 Xxxxx Xxxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx,
Xxxxxx and State of New York, as tenant (referred to herein as "Tenant").
WITNESSETH:
WHEREAS:
(1) Under date September 7, 1995, Owner and N2K
Inc., a New York corporation, Tenant's predecessor interest, entered into a
lease affecting portions of the tenth (10th) and eleventh (11th) floors in the
building (referred to herein as the "Building") known as 00 Xxxxx Xxxxxx,
Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New York; and
(2) N2K Inc., a New York corporation, merged
into Tenant by statutory merger effective February 13, 1996; and
(3) Said lease, as modified by written
agreements dated December 31, 1995 and April 1, 1996 (said agreement dated
April 1; 1996 is referred to as the "First Additional Space Agreement"), is for
a term (referred to herein as the "Demised Term") which shall end on May 31,
2001, unless extended pursuant to the provisions of Article SECOND of the First
Additional Space Agreement or sooner terminated or extended pursuant to any of
the terms, covenants or conditions of said lease or pursuant to law, and is
referred to herein as the "Lease"; and the premises so leased to Tenant
pursuant
103
to the provisions of the Lease, together with all appurtenances, fixtures,
improvements, additions and other property attached thereto or installed
therein at any time during the Demised Term other than Tenant's Personal
Property (as defined in the Lease), are referred to herein, collectively, as
the "Demised Premises"; and
(4) Tenant now desires to lease and add to the Demised
Premises that portion of the tenth (10th) floor of the Building as shown on
Exhibit "1", initialled by the parties, which is annexed hereto and made part
hereof, and Owner is willing to lease said portion of the tenth (10th) floor to
Tenant, subject to the provisions of this Agreement (said portion of the tenth
(10th) floor of the Building, together with all appurtenances, fixtures,
improvements, additions and other property attached thereto or installed
therein at any time during the Demised Term, other than Tenant's Personal
Property as defined in the Lease, is referred to herein as the "Second
Additional Space"); and
(5) The Demised Term of the Lease applicable to the
Second Additional Space shall commence on a date (referred to as the "Second
Additional Space Commencement Date") fixed by Owner in a notice to Tenant, not
sooner than ten (10) days next following the date of the giving of such notice,
which notice shall state that Owner has, or prior to the Second Additional
Space Commencement Date will have, substantially completed Owner's Second
Additional Construction (as hereinafter defined); and
(6) All capitalized terms shall have the same meanings
ascribed to them in the Lease, unless otherwise set forth herein; and
(7) The parties desire to record herein their
understandings with respect to the foregoing.
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NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties agree as follows:
FIRST: The Lease is hereby modified as follows:
A. Owner hereby leases to Tenant and Tenant hereby
hires from Owner the Second Additional Space for a term to commence upon the
Second Additional Space Commencement Date and to end on the Expiration Date (as
it may have been extended pursuant to the First Additional Space Agreement or
as it may be extended pursuant to the provisions of this Agreement or the
Lease), unless the Demised Term shall sooner terminate pursuant to any of the
terms, covenants or conditions of the Lease or pursuant to law.
B. Owner agrees to perform work and make
installations in the Second Additional Space as set forth in Addendum A. Such
work and installations are referred to as "Owner's Second Additional
Construction". All of the terms, covenants and conditions of Addendum A are
incorporated in this agreement by reference and shall be deemed a part of this
agreement as though fully set forth in the body of this agreement.
C. From and after the Second Additional Space
Commencement Date, the Lease shall be deemed modified, as follows:
(1) The Demised Premises shall include the Second
Additional Space for all purposes of the Lease;
(2) a. The Fixed Rent reserved in the Lease shall be
increased by TWENTY EIGHT THOUSAND FOUR HUNDRED SIXTY-TWO AND
00/100 ($28,462.00) DOLLARS per annum with respect to the
period ("Second Additional Space Rent Period
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105
A") from the Second Additional Space Commencement Date to
December 31, 1997, and THIRTY TWO THOUSAND FIVE HUNDRED
TWENTY-EIGHT AND 00/100 ($32,528.00) DOLLARS per annum with
respect to the remainder of the Demised Term ("Second
Additional Space Rent Period B").
b. In the event that the Second Additional Space
Commencement Date shall occur on a date other than the first
(1st) day of any calendar month, then the increase in the
Fixed Rent for the month in which the Second Additional Space
Commencement Date shall occur shall be prorated.
(3) The Demised Premises Area, as set forth in Section
23.01, shall be increased by 2,033 square feet.
(4) Section 29.05B of the Lease shall be modified to
the extent that wherever the figure "8,999", as increased to
"11,702" by the First Additional Space Agreement, appears, the
figure "13,076" shall be substituted in lieu thereof; and
(5) Section 29.05F of the Lease shall be modified to
the extent that wherever the figure "sixty two and 13/100
(62,13%) percent" appears, the figure "seventy five and 03/100
(75.03%) percent" shall be substituted in lieu thereof.
SECOND, In the event that the Demised Term of the Lease
applicable to the Second Additional Space shall be less than five (5) full
years then the Demised Term shall be automatically extended to the last day of
the calendar month in which the day immediately preceding the fifth (5th)
anniversary of the Second Additional Space Commencement Date shall occur,
unless sooner terminated pursuant to the provisions of the Lease or pursuant to
law; any such extension shall be upon all of the then applicable executory
terms, covenants and conditions set forth in the Lease (including, but not
limited to, the provisions of Articles 23 and 29).
THIRD: Owner and Tenant each represent and warrant to the
other that with the exception of Xxxxx Realty Company, Owner's consultant,
Xxxxxxxxxxx & Company, L.L.C. is the sole broker with whom either party has
negotiated or otherwise dealt with in connection with the Second Additional
Space or in bringing about this Agreement. Owner and Tenant shall indemnify
each other from all loss, cost, liability, damage and expenses, including, but
not limited to, reasonable counsel fees
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106
and disbursements, arising from any breach of the foregoing representation and
warranty. Owner shall pay any commission or compensation due hereunder pursuant
to a separate agreement with such broker.
FOURTH: Except to the extent expressly modified by the
foregoing provisions of this Agreement, the Lease is hereby ratified and
confirmed in all respects
IN WITNESS WHEREOF, the parties hereto have here unto set
their hands and seals as of the day and year first above written.
00 XXXXX XXXXXX COMPANY, Owner
BY: /s/ XXXXX XXXXX
--------------------------------
Xxxxx Xxxxx, Partner
N2K INC., Tenant
BY: /s/ XXXXXXXX X. XXXXXXX
--------------------------------
Xxxxxxxx X. Xxxxxxx, Vice Chairman
-5-
000
XXXXX XX XXX XXXX)
ss:
COUNTY OF NEW YORK)
On the 12th day of April, 1996, before me personally came
Xxxxxxxx X. Xxxxxxx to me known, who, being by me duly sworn, did depose and
say that he resides at 0 X. 00xx Xx. XX, XX that he is the Vice Chairman of N2K
Inc., the corporation described in and which executed the foregoing instrument;
and that he signed his name thereto by authority of the Board of Directors of
said corporation.
/s/ XXXX X. XXXXXXXXXX
----------------------
Notary Public
XXXX X. XXXXXXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
No. 00-0000000
Qualified in New York County
Commission Expires August 29, 1996
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ADDENDUM A
OWNER'S SECOND ADDITIONAL CONSTRUCTION
1. Owner agrees to supply and install in the
Second Additional Space all of the items set forth on Tenant's Second
Additional Plan referred to in Paragraph IV of this Schedule unless prevented
by job conditions or other circumstances beyond the reasonable control of
Owner. In consideration of the performance of such work by Owner, Tenant shall
pay to Owner, from time to time upon demand, whether or not the Second
Additional Space Commencement Date shall have occurred, a sum (referred to as
"Tenant's Second Additional Construction Sum") equal to the amount, if any, by
which the aggregate of. (a) the actual cost and expense to Owner of supplying
and installing all of the items set forth on Tenant's Second Additional Plan
(including, but not limited to, the cost to Owner of a field superintendent,
operating engineer, laborers, freight elevator costs, rubbish removal,
temporary sprinklers and lighting, electric and heat, protection, insurance,
Building Department filing and expediting, Building permits, any other
governmental approvals, blueprint costs and every other item which customarily
would be considered a general condition and, if applicable, any construction
management or other fees paid to the general contractor or construction manager
who is performing Owner's Second Additional Construction) (such aggregate
actual cost and expense is referred to as "Owner Construction Cost") plus (b)
if there is no general contractor or construction manager who is performing
Owner's Second Additional Construction, ten (10%) percent of Owner's
Construction Cost for office overhead and as a construction management fee,
shall exceed (c) the sum of SEVENTY-ONE THOUSAND ONE HUNDRED FIFTY-FIVE AND
00/100 ($71,155.00) DOLLARS. In the event that said sum of SEVENTY-ONE
THOUSAND ONE HUNDRED FIFTY-FIVE AND 00/100 $71,155.00) DOLLARS shall be in
excess of the aggregate amounts set forth in subdivision (a) and if applicable,
(b) above, Tenant shall be entitled to apply such excess against any of
Tenant's architects, engineers or designers fees incurred by Tenant in
connection with Owner's Second Additional Construction and the cost of any
moving expenses and telecommunications and telephone systems installed in the
Demised Premises. In the event that any further excess remains after such
application Tenant shall not be entitled to any such further excess. Any such
sums due Owner shall be payable by Tenant to Owner, from time to time whether
or not the Second Additional Space Commencement Date shall have occurred,
within five (5) days next following the rendition of a statement therefor by
Owner to Tenant. Tenant shall furnish to Owner security satisfactory to Owner
in an amount at least equal to Owner's estimate of Tenant's Second Additional
Construction Sum within five (5) days after demand by Owner therefor. In the
event Owner's estimate of the amount of Tenant's Second Additional Construction
Sum is increased, then Tenant shall increase the amount of such security to an
amount at least equal to such revised increased estimate of Tenant's Second
Additional Construction Sum, within five (5) days after demand therefor by
Owner. In connection with Owner's Second Additional Construction, Owner agrees
to employ competitive bidding and to promptly submit copies of all bids to
Tenant and to engage the lowest responsible bidder in each category after
advising Tenant of the bidder selected and, if such bidder is not the lowest
bidder, then the reason for such selection. Tenant and its architect shall be
permitted to
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participate in the bidding process and awarding of all contracts.
II. The work and installations required to be performed and
made by Owner pursuant to the provisions of Paragraph I of this Schedule shall
be equal to standards adopted by Owner for the Building. Owner's Second
Additional Construction shall constitute a single non-recurring obligation on
the part of Owner. In the event the Lease is renewed or extended for a further
term by agreement or operation of law, Owner's obligation to perform Owner's
Second Additional Construction shall not apply to any such renewal or
extension.
III. Subject to the provisions of Paragraphs IV(4) and VI of
this Schedule, Owner's Second Additional Construction shall be substantially
completed prior to the Second Additional Space Commencement Date. At any time
after such substantial completion, Owner may enter the Demised Premises to
complete unfinished details of Owner's Second Additional Construction and entry
by Owner, its agents, servants, employees or contractors for such purpose shall
not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Owner or
its agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise.
IV.(1) On or prior to April 15, 1996, Tenant, at Tenant's sole
cost and expense, shall prepare and submit to Owner a complete set of detailed
plans and specifications (referred to as "Tenant's Second Additional Plan") for
those Alterations to the Second Additional Space which Tenant desires Owner to
perform as Owner's Second Additional Construction. Tenant's Second Additional
Plan shall include, but shall not be limited to, engineering plans and
specifications and Tenant's Second Additional Plan shall indicate the heat
factor, if any, of all equipment intended to be used in, and the human load
factor proposed for, each room or other area. All engineering drawings and
specifications in connection with Tenant's Second Additional Plan (mechanical,
electrical, plumbing, etc.) shall be prepared by licensed professional
engineers, at Tenant's expense, selected by Tenant from a list of engineers
submitted by Owner. Tenant's Second Additional Plan shall not designate any
area which shall have an electrical load in excess of four (4) xxxxx per square
foot of usable area for all purposes (including lighting and power) or which
shall have a human occupancy factor in excess of one (1) person per one hundred
(100) square feet of usable area (the average electrical load and human
occupancy factors for which the Building's HVAC systems have been designed).
Tenant's Second Additional Plan shall not designate any work, materials or
installations which (i) are not in compliance with the provisions of Articles 3
and 6 of the Lease; (ii) are not practical and consistent with the physical
conditions in the Building and with the plans for the Building filed with the
Department of Buildings of the City of New York; (iii) will impair Owner's
ability to perform any of Owner's obligations under the provisions of the
Lease; (iv) will affect any portions of the Building other than the Demised
Premises; or (v) does not comply with the provisions of Section 29.05. Tenant
agrees that Tenant's Second Additional Plan and any revisions thereto shall
be, signed, certified and sealed by a registered architect, and, if required,
engineer, duly licensed in the State of New York and approved by Owner, such
approval not to be unreasonably withheld, so that Tenant's Second
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Additional Plan and any revisions thereto may be filed with, and approved by,
the Department of Buildings of the City of New York.
Tenant's Second Additional Plan shall designate a sprinkler
system, and, accordingly, shall designate, subject to compliance with all laws,
orders and regulations of all governmental authorities having jurisdiction, the
location of sprinkler heads and associated piping. Tenant's Second Additional
Plan also shall designate all work in the Second Additional Space which is
required so that the Second Additional Space shall comply with all applicable
provisions of the Americans With Disabilities Act and Local Law #58. Owner's
Second Additional Construction shall be performed in accordance with all Legal
Requirements including, but not limited to, the provisions of the Americans
With Disabilities Act.
(2) Tenant's Second Additional Plan shall be subject to
Owner's approval, which Owner agrees not unreasonably to withhold or delay.
Owner's approval of Tenant's Second Additional Plan shall not, unless expressly
set forth in such approval, be deemed to authorize Tenant to make any
Alterations in or about the Second Additional Space.
(3) In the event (i) Tenant on or prior to April 15, 1996,
shall fail to submit to Owner a Tenant's Second Additional Plan which shall
meet with Owner's approval, or (ii) substantial completion of Owner's Second
Additional Construction shall be delayed by reason of Tenant's unreasonable
delays in submitting any other plans or specifications, or in supplying
information, or in approving plans or specifications or estimates, or in
giving authorizations or by reason of any Change Work (as hereinafter defined)
or by reason of any other similar acts or omissions of Tenant, then, in such
event, Tenant agrees to pay to Owner, as agreed liquidated damages for Tenant's
failures aforesaid or for such delays occasioned by Tenant's acts or omissions,
as the case may be, sums equal to one (1) day's rent applicable to the Second
Additional Space for the first period of rent applicable thereto for each day
that such failure or delay shall continue.
(4) Tenant, after the submission of Tenant's Second
Additional Plan, may designate, subject to Owner's approval, not unreasonably
to be withheld, substitute or additional work, materials or installations
(referred to, collectively as "Change Work") to be supplied and installed by
Owner in replacement of, or in addition to, the work, materials and
installations set forth on Tenant's Second Additional Plan provided that such
Change Work: (i) is in compliance with the provisions of Articles 3 and 6 of
the Lease; (ii) is practical and consistent with the physical conditions in the
Building and with the plans for the Building filed with the Department of
Buildings of the City of New York; (iii) will not impair Owner's ability to
perform any of Owner's obligations under the provisions of the Lease; (iv) will
not affect any portions of the Building other than the Demised Premises; (v)
complies with the provisions of Section 29.05; (vi) shall (a) be signed, sealed
and certified by a registered architect and, if applicable, engineer duly
licensed in the State of New York and (b) comply with all applicable laws,
orders, rules and regulations of governmental authorities so that Tenant's
Second Additional Plan may without further amendment or change be used for
engineering drawings and
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specifications and filed with and approved by the Department of Buildings of
the City of New York; (vii) will not tend to delay completion of Owner's Second
Additional Construction; and (viii) shall not designate any area which shall
have an electrical load in excess of four (4) xxxxx per square foot of usable
area for all purposes (including lighting and power) or which shall have a
human occupancy factor in excess of one (1) person per one hundred (100) square
feet of usable area. At or about the time of the submission by Tenant to Owner
of any Change Work if it appears to Owner that any item of Change Work
designated by Tenant will tend to delay completion of Owner's Second Additional
Construction, or, notwithstanding Owner's approval of any Change Work, if it
subsequently appears to Owner that any item of Change Work designated by Tenant
will tend to delay completion of Owner's Second Additional Construction, Owner
in each case shall notify Tenant to that effect and Tenant, within five (5)
days after notice from Owner to that effect, will designate, subject to the
foregoing limitations (i) through (viii), other available items of Change Work
which will not so tend to delay completion. If Tenant fails to make such
designations within five (5) days after said notice from Owner, Owner will have
no obligation to supply or install the items set forth in such Owner's notice
or, at Owner's election, Owner shall have the right to perform such items of
Change Work in accordance with the provisions of this Schedule, except that,
solely for the purpose of determining whether or not Owner's Second Additional
Construction has been substantially completed and for the purpose of fixing the
Second Additional Space Commencement Date, such items of Change Work and all
other related work and installations shall be deemed unfinished details of
Owner's Second Additional Construction which may be performed after the Second
Additional Space Commencement Date in accordance with the provisions of
Paragraph III of this Schedule and, accordingly, shall not affect the Second
Additional Space Commencement Date.
V. INTENTIONALLY DELETED
VI. At or about the time that Owner shall notify Tenant of
the approval of Tenant's Second Additional Plan, such notice of approval shall
state which items contained in Tenant's Second Additional Plan, if any, will or
might be subject to certain delays in delivery and which might affect the date
of substantial completion of Owner's Second Additional Construction. Tenant
may, within five (5) days after such notice from Owner, designate, subject to
the limitations (i) through (viii) set forth in subparagraph (4) of Paragraph
IV, other available items which will not be subject to delays in delivery. If
Tenant fails to timely make such designations, Owner will have no obligation to
supply or install the items set forth in such Owner's notice or, at Owner's
election, Owner shall have the right to perform such items and for the purpose
of determining whether or not Owner's Second Additional Construction shall have
been substantially completed and for the purpose of fixing the Second
Additional Space Commencement Date, said items set forth in such notice and all
other related work and installations (sometimes hereinafter referred to
collectively as "Long Lead Items") shall be deemed unfinished details of
Owner's Second Additional Construction which may be performed by Owner after
the substantial completion of Owner's Second Additional Construction in
accordance with the provisions of Paragraph III of this Schedule and,
accordingly, shall not affect the Second Additional Space Commencement Date.
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[FLOOR PLAN]
EXHIBIT 1
This floor plan of a portion of the tenth (10th) floor of the Building
known as 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, is annexed to this Agreement and
is made a part hereof solely to delineate by outlining and diagonal markings
the Second Additional Space. All areas, dimensions, conditions and locations
are approximate.
113
THIRD ADDITIONAL SPACE AGREEMENT
AGREEMENT made as of the 3rd day of April, 1996 between 00
XXXXX XXXXXX COMPANY, a New York partnership having its principal office at 000
Xxxx Xxxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New York, as
landlord (referred to herein as "Owner"), and N2K INC., a Pennsylvania
corporation having an office at 00 Xxxxx Xxxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx,
Xxxxxx and State of New York, as tenant (referred to herein as "Tenant").
WITNESSETH:
WHEREAS:
(1) Under date of September 7, 1995, Owner and N2K
Inc., a New York corporation, Tenant's predecessor in interest, entered into a
lease affecting portions of the tenth (10th) and eleventh (11th) floors in the
building (referred to herein as the "Building") known as 00 Xxxxx Xxxxxx,
Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New York, and
(2) N2K Inc., a New York corporation, merged into
Tenant by statutory merger effective February 13, 1996; and
(3) Said lease, as modified by written agreements
dated December 31, 1995, April 1, 1996 (said agreement dated April 1, 1996 is
referred to as the "First Additional Space Agreement") and April 2, 1996 (said
agreement dated April 2, 1996 is referred to as the "Second Additional Space
Agreement"), is for a term (referred to herein as the "Demised Term") which
shall end on May 31, 2001, unless extended pursuant to the provisions of
Article SECOND of the First and/or Second Additional Space Agreements or sooner
terminated or extended pursuant to any of the terms, covenants or, conditions
114
of said lease or pursuant to law, and is referred to herein as the "Lease"; and
the premises so leased to Tenant pursuant to the provisions of the Lease,
together with all appurtenances, fixtures, improvements, additions and other
property attached thereto or installed therein at any time during the Demised
Term other than Tenant's Personal Property (as defined in the Lease), are
referred to herein, collectively, as the "Demised Premises"; and
(4) Tenant now desires to lease and add to the Demised
Premises that portion of the eleventh (11th) floor of the Building as shown on
Exhibit "1", initialled by the parties, which is annexed hereto and made part
hereof, and Owner is willing to lease said portion of the eleventh (11th) floor
to Tenant, subject to the provisions of this Agreement (said portion of the
eleventh (11th) floor of the Building, together with all appurtenances,
fixtures, improvements, additions and other property attached thereto or
installed therein at any time during the Demised Term, other than Tenant's
Personal Property as defined in the Lease, is referred to herein as the "Third
Additional Space"); and
(5) The Third Additional Space is presently
temporarily occupied by New York New Media Association (the "Present Occupant")
whose lease shall expire upon the completion by Owner of the Present Occupant's
new space on the third (3rd) floor in the Building. Owner anticipates that
said new space shall be completed on or about July 1, 1996 and Owner shall use
reasonable diligence to complete same. The Demised Term of the Lease
applicable to the Third Additional Space shall commence on a date (referred to
as the "Third Additional Space Commencement Date") fixed by Owner in a notice
to Tenant, not sooner than ten (10) days next following the date of the giving
of such notice, which notice shall state that Owner has, or prior to the Third
Additional Space Commencement Date will have, substantially completed Owner's
Third Additional Work (as hereinafter defined); and
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(6) All capitalized terms shall have the same meanings
ascribed to them in the Lease, unless otherwise set forth herein; and
(7) The parties desire to record herein their
understandings with respect to the foregoing.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties agree as follows:
FIRST: The Lease is hereby modified as follows:
A. Owner hereby leases to Tenant and Tenant hereby hires
from Owner the Third Additional Space for a term to commence upon the Third
Additional Space Commencement Date and to end on the Expiration Date (as it may
have been extended pursuant to the First and/or Second Additional Space
Agreements or as it may be extended pursuant to the provisions of this
Agreement or the Lease), unless the Demised Term shall sooner terminate
pursuant to any of the terms, covenants or conditions of the Lease or pursuant
to law.
B. The work performed by Owner in the Third
Additional Space which was completed on or about December 22, 1995 together
with the work hereinafter set forth in this Paragraph B is referred to,
collectively, as "Owner's Third Additional Work". Owner, at Owner's expense,
shall paint the painted surfaces in the Third Additional Space with a single
coat of paint in flat finish in colors selected by Tenant from Building
standard colors, but not more than one (1) color in any room or other area. If
Tenant fails to designate its selection of paint colors by June 1, 1996 then
the Third Additional Space Commencement Date shall be deemed to occur on the
date upon which the Present Occupant shall
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have vacated and surrendered the Third Additional Space to Owner, and Owner may
enter the Third Additional Space after the Third Additional Space Commencement
Date to perform such painting, and any entry by Owner therefor shall not
constitute an actual or constructive eviction in whole or in part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any of
its obligations under the Lease, or impose any liability upon Owner, or its
agents, by reason of any inconvenience or annoyance to Tenant or injury to or
interruption of Tenant's business or otherwise.
C. From and after the Third Additional Space
Commencement Date, the Lease shall be deemed modified, as follows:
(1) The Demised Premises shall include the Third
Additional Space for all purposes of the Lease;
(2) a. The Fixed Rent reserved in the Lease shall be
increased by TWENTY-THREE THOUSAND TWO HUNDRED TWENTY-SIX AND
00/100 ($23,226.00) DOLLARS per annum with respect to the
period ("Third Additional Space Rent Period A") from the Third
Additional Space Commencement Date to December 31, 1997, and
TWENTY-SIX THOUSAND FIVE HUNDRED FORTY-FOUR AND 00/100
($26,544.00) DOLLARS per annum with respect to the remainder
of the Demised Term ("Third Additional Space Rent Period B").
Tenant shall not be required to pay any portion of the
increase in the Fixed Rent set forth in this subparagraph
C(2)a applicable solely to the Third Additional Space with
respect to the period ("Third Additional Space Rent Holiday
Period") from the Third Additional Space Commencement Date to
and including the date one hundred fifty (150) days thereafter
as said date of one hundred fifty (150) days is reduced by
multiplying it by the fraction the numerator of which is the
number of days from the Third Additional Space Commencement
Date to the Expiration Date and the denominator of which is
the number of days from December 22, 1995 to the Expiration
Date. During the Third Additional Space Rent Holiday Period
Tenant shall otherwise be required to comply with all of the
other terms, covenants and conditions of this Lease on
Tenant's part to be observed and performed, including, but not
limited to, the payment of all sums required to be paid
pursuant to the provisions of Articles 23 and 29. The date
next following the expiration of the Third Additional Space
Rent Holiday Period is referred to as the Third Additional
Space Rent Commencement Date.
b. In the event that the Third Additional Space
Rent Commencement Date shall occur on a date other than the
first (1st) day of any calendar month, then the increase in
the Fixed Rent for the month in which the Third Additional
Space Rent
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Commencement Date shall occur shall be prorated.
(3) The Demised Premises Area, as set forth in Section
23.01, shall be increased by 1,659 square feet.
(4) Section 29.05B of the Lease shall be modified to
the extent that wherever the figure "8,999", as increased to
"11,702" by the First Additional Space Agreement and "13,076"
by the Second Additional Space Agreement, appears, the
figure "14,197" shall be substituted in lieu thereof; and
(5) Section 29.05F of the Lease shall be modified to
the extent that wherever the figure "twenty two and 40/100
(22.40%) percent" as increased to the figure "forty seven and
79/100 (47.79%) percent", by the First Additional Space
Agreement, appears, the figure "fifty-eight and 32/100
(58.32%) percent" shall be substituted in lieu thereof.
SECOND: In the event that the Demised Term of the Lease
applicable to the Third Additional Space shall be less than five (5) full years
then the Demised Term shall be automatically extended to the last day of the
calendar month in which the day immediately preceding the fifth (5th)
anniversary of the Third Additional Space Commencement Date shall occur, unless
sooner terminated pursuant to the provisions of the Lease or pursuant to law;
any such extension shall be upon all of the then applicable executory terms,
covenants and conditions set forth in the Lease (including, but not limited to,
the provisions of Articles 23 and 29).
THIRD: Owner and Tenant each represent and warrant to the
other that with the exception of Xxxxx Realty Company, Owner's consultant,
Xxxxxxxxxxx & Company, L.L.C. is the sole broker with whom either party has
negotiated or otherwise dealt with in connection with the Third Additional
Space or in bringing about this Agreement. Owner and Tenant shall indemnify
each other from all loss, cost, liability, damage and expenses, including, but
not limited to, reasonable counsel fees and disbursements, arising from any
breach of the foregoing representation and warranty. Owner shall pay any
commission or compensation due hereunder pursuant to a separate agreement with
such broker.
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FOURTH: Except to the extent expressly modified by the
foregoing provisions of this Agreement, the Lease is hereby ratified and
confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto have here unto set
their hands and seals as of the day and year first above written.
00 XXXXX XXXXXX COMPANY, Owner
BY: /s/ XXXXX XXXXX
---------------------------------
Xxxxx Xxxxx, Partner
N2K INC., Tenant
BY: /s/ XXXXXXXX X. XXXXXXX
----------------------------------
Xxxxxxxx X. Xxxxxxx, Vice Chairman
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XXXXX XX XXX XXXX)
ss:
COUNTY OF NEW YORK)
On the 12th day of April, 1996, before me personally came
Xxxxxxxx X. Xxxxxxx to me known, who, being by me duly sworn, did depose and
say that he resides at 0 X. 00xx Xx, XX, XX that he is the Vice Chairman of N2K
Inc., the corporation described in and which executed the foregoing instrument;
and that he signed his name thereto by authority of the Board of Directors of
said corporation.
/s/ XXXX X. XXXXXXXXXX
-----------------------
Notary Public
XXXX X. XXXXXXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
Commission Expires August 29, 1996
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EXHIBIT 1
This floor plan of a portion of the eleventh (11th) floor of the Building
known as 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, is annexed to this Agreement and
is made a part hereof solely to delineate by outlining and diagonal markings
the Third Additional Space. All areas, dimensions, conditions and locations are
approximate.
[FLOOR PLAN]
00 XXXXX XXXXXX LEASE PLAN 11TH FLOOR PLAN
121
FOURTH ADDITIONAL SPACE AGREEMENT
AGREEMENT made as of the 15th day of October, 1996 between 00
XXXXX XXXXXX COMPANY, a New York partnership having its principal office at 000
Xxxx Xxxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New York, as
landlord (referred to herein as "Owner"), and N2K INC., a Pennsylvania
corporation authorized to transact business in the State of New York, having an
office at 00 Xxxxx Xxxxxx, Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New
York, as tenant (referred to herein as "Tenant").
W I T N E S S E T H:
WHEREAS:
1. Under date of September 7, 1995, Owner and N2K Inc., a New
York corporation, Tenant's predecessor in interest, entered into a lease
affecting portions of the tenth (10th) and eleventh (11th) floors in the
building (referred to herein as the "Building") known as 00 Xxxxx Xxxxxx,
Xxxxxxx xx Xxxxxxxxx, Xxxx, Xxxxxx and State of New York; and
2. N2K Inc., a New York corporation, merged into Tenant by
statutory merger effective February 13, 1996; and
3. Said lease, as modified by written agreements dated
December 31, 1995, April 1, 1996 (said agreement dated April 1, 1996 is referred
to as the "First Additional Space Agreement"), April 2, 1996 (said agreement
dated April 2, 1996 is referred to as the "Second Additional Space Agreement")
and April 3, 1996 (said agreement dated April 3, 1996 is referred to as the
"Third Additional Space Agreement"), is for a term (referred to herein as the
"Demised Term") which shall end on May 31, 2001, unless extended pursuant to the
provisions of Article SECOND of the First and/or Second and/or Third Additional
Space Agreements or sooner terminated or extended pursuant to any of the terms,
covenants or conditions of said lease or pursuant to law, and is referred to
herein as the "Lease"; and the premises so leased to Tenant pursuant to the
provisions of the Lease, together with all appurtenances, fixtures,
improvements, additions and other property attached thereto or installed therein
at any time during the Demised Term other than Tenant's Personal Property (as
defined in the Lease), are referred to herein, collectively, as the "Demised
Premises"; and
4. Tenant now desires to lease and add to the Demised Premises
the entire twenty-fifth (25th) and twenty-sixth (26th) floors of the Building
and Owner is willing to lease said entire twenty-fifth (25th) and twenty-sixth
122
(26th) floors to Tenant, subject to the provisions of this Agreement (said
entire twenty-fifth (25th) and twenty-sixth (26) floor of the Building, together
with all appurtenances, fixtures, improvements, additions and other property
attached thereto or installed therein at any time during the Demised Term, other
than Tenant's Personal Property as defined in the Lease, is referred to herein
as the "Fourth Additional Space"); and
5. The Demised Term of the Lease applicable to the Fourth
Additional Space shall commence on a date (referred to as the "Fourth Additional
Space Commencement Date") fixed by Owner in a notice to Tenant, not sooner than
ten (10) days next following the date of the giving of such notice, which notice
shall state that Owner has, or prior to the Fourth Additional Space Commencement
Date will have, substantially completed Owner's Fourth Additional Construction
(as more fully described in Addendum A, which is annexed hereto and made part
hereof); and
6. All capitalized terms shall have the same meanings ascribed
to them in the Lease, unless otherwise set forth herein; and
7. The parties desire to record herein their understandings
with respect to the foregoing.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties agree as follows:
FIRST : The Lease is hereby modified as follows:
A. Owner hereby leases to Tenant and Tenant hereby hires from
Owner the Fourth Additional Space for a term to commence upon the Fourth
Additional Space Commencement Date and to end on the Expiration Date (as it may
have been extended pursuant to the First and/or Second and Third Additional
Space Agreements or the Lease or pursuant to the provisions of this agreement),
unless the Demised Term shall sooner terminate pursuant to any of the terms,
covenants or conditions of the Lease or pursuant to law.
B. (1) Owner agrees to perform work and make installations in
the Fourth Additional Space as set forth in Addendum A. Such work and
installations are referred to as "Owner's Fourth Additional Construction". All
of the terms, covenants and conditions of Addendum A are incorporated in this
agreement by reference and shall be deemed a part of this agreement as though
fully set forth in the body of this agreement.
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(2) Owner agrees, upon request from Tenant on or prior to
November 15, 1996, at Owner's expense, to seal the opening between the 25th and
26th floors in a building standard and workmanlike manner in the location where
the stairwell between such floors had previously been located and Tenant,
subject to the provisions of the Lease and Addendum A which is annexed hereto
and made a part hereof, shall have the right to create an opening between such
floors in a location reasonably acceptable to Owner for the purpose of
installing a stairwell.
C. From and after the Fourth Additional Space Commencement
Date, the Lease shall be deemed modified, as follows:
(1) The Demised Premises shall include the Fourth
Additional Space for all purposes of the Lease;
(2) a. The Fixed Rent reserved in the Lease shall be
increased by TWO HUNDRED EIGHTY THOUSAND and 00/100 ($280,000.00) DOLLARS per
annum with respect to the first year of the Demised Term applicable to the
Fourth Additional Space (i.e., from the Fourth Additional Space Commencement
Date to the last day of the calendar month in which occurs the first (1st)
anniversary of the Fourth Additional Space Commencement Date), FOUR HUNDRED
EIGHTY and 00/100 ($480,000.00) DOLLARS per annum with respect to the next year
of the Demised Term applicable to the Fourth Additional Space, and FIVE HUNDRED
TWENTY THOUSAND and 00/100 ($520,000.00) DOLLARS per annum with respect to the
remainder of the Demised Term applicable to the Fourth Additional Space and the
monthly installments of Fixed Rent shall be increased accordingly.
b. In the event that the Fourth Additional Space
Commencement Date shall occur on a date other than the first (1st) day of any
calendar month, then the increase in the Fixed Rent for the month in which the
Fourth Additional Space Commencement Date shall occur shall be prorated.
(3) The Demised Premises Area, as set forth in Section
23.01, shall be increased by 20,000 square feet.
(4) With respect to the Fourth Additional Space only, the
following new Section 29.09 entitled "Electricity: Fourth Additional Space"
shall be deemed added to the Lease as of the date hereof, and Section 29.05
shall continue to apply to the previously leased portions of the Building by
Tenant:
"A. Owner shall redistribute or furnish electrical energy to
or for the use of Tenant in the Fourth
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Additional Space for the operation of the lighting fixtures and the electrical
receptacles installed in the Fourth Additional Space on the Commencement Date
and the operation of the Building heating, ventilating and air conditioning
system unit serving the floors of the Building on which the Fourth Additional
Space is located. If either the quantity or character of electrical service is
changed by the corporation(s) and/or other entity(ies) selected by Owner to
supply electrical service to the Building or is no longer available or suitable
for Tenant's requirements, or, if any equipment supplementing or ancillary to
such electrical service which is installed in the Building by or on behalf of
said corporation(s) and/or other entity(ies) malfunctions or fails to operate
for any reason while Tenant has made any connections to said equipment, no such
change, unavailability, unsuitability, malfunction or failure to operate shall
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Owner, or its agents,
by reason of inconvenience or annoyance to Tenant, or injury to or interruption
of Tenant's business or otherwise, unless such change, unavailability or
unsuitability is caused by Owner's negligence or willful misconduct or the
negligence or willful misconduct of Owner's agents, employees or contractors. In
the event the corporation(s) and/or other entity(ies) selected by Owner shall be
different from such corporation(s) and or other entity(ies) presently providing
electrical service to the Building as of the date hereof, any such new or
replacement corporation(s) and/or other entity(ies) selected by Owner shall be
reputable and provide competitive rates.
B. Owner shall provide for an electrical load of eight (8)
xxxxx per square foot of usable area demand load other than during any period it
is prohibited from doing so by any laws, orders, rules and/or regulations of any
applicable governmental authorities (including, but not limited to, the New York
State Energy Conservation Construction Code) in which event the reference to
eight (8) xxxxx hereinabove set forth shall, during such period, be decreased to
the maximum number of xxxxx per usable square foot which is permitted by any
such laws, orders, rules and/or regulations. The foregoing shall be exclusive of
the electrical power for the Building HVAC systems. Solely for the purposes of
this section, the Fourth Additional Space shall be deemed to contain 13,252
square feet. Any additional feeders or risers to supply Tenant's additional
electrical requirements, and all other equipment proper and necessary in
connection with such feeders or risers shall be installed by Owner upon Tenant's
request, at the sole cost and expense of Tenant; provided that, in Owner's
judgment,
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such additional feeders or risers are necessary and are permissible under
applicable laws and insurance regulations and the installation of such feeders
or riders will not cause permanent damage or injury to the Building or the
Fourth Additional Space or cause or create a dangerous or hazardous condition or
entail excessive or unreasonable alterations or repairs to or interfere with or
disturb other tenants or occupants of the Building. Tenant covenants that at no
time shall the use of electrical energy in the Fourth Additional Space exceed
the capacity of the existing feeders or risers or wiring installations then
servicing the Fourth Additional Space.
C. Prior to the Commencement Date Owner, at Owner's expense,
shall have installed a submeter or submeters in the Fourth Additional Space to
measure Tenant's actual consumption of electricity in the entire Fourth
Additional Space, including, but not limited to, all electricity required for
the operation of the Building heating, ventilating and air conditioning system
unit serving the floor of the Building on which the Fourth Additional Space are
located. Tenant shall pay to Owner, from time to time, upon demand, for the
electricity consumed in the Fourth Additional Space, as determined by such
submeter or submeters, the actual cost to Owner of purchasing electricity for
the Fourth Additional Space (as such actual cost is hereinafter defined) plus
all applicable taxes thereon. Owner's actual cost for Tenant's KW and KWH shall
be determined by the application of the Building's electric rate schedule per
month from the corporation(s) and/or other entity(ies) selected by Owner to
supply electrical service to the Building to Tenant's usage. With respect to any
period when any such submeter is not in good working order, Tenant shall pay
Owner for electricity consumed in the portion of the Fourth Additional Space
served by such submeter at the rate paid by Tenant to Owner during the most
recent comparable period when such submeter was in good working order. Tenant
shall take good care of any such submeter and all submetering installation
equipment, at Tenant's sole cost and expense, and make all repairs thereto
occasioned by any acts, omissions or negligence of Tenant or any person claiming
through or under Tenant as and when necessary to insure that any such submeter
is, at all times during the Demised Term, in good working order. With respect to
the period (referred to as the "Interim Period"), if any, from the Fourth
Additional Space Commencement Date through the date immediately prior to the
date upon which the submeter or submeters shall be operable, Tenant shall pay to
Owner monthly on demand of Owner, for the electricity consumed in the Fourth
Additional Space, a sum equal to one-twelfth (1/12th) of the product of (x)
$1.50 multiplied by (y) 20,000. With respect to any period during the Interim
Period constituting less than a
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full calendar month, the monthly payment referred to in the preceding sentence
shall be appropriately prorated.
D. (1) Owner may, at any time, elect to discontinue the
redistribution or furnishing of electrical energy. In the event of any such
election by Owner, (i) Owner agrees to give reasonable advance notice of any
such discontinuance to Tenant, (ii) Owner agrees to permit Tenant to receive
electrical service directly from the corporation(s) and/or other entity(ies)
selected by Owner to supply electrical service to the Building and to permit the
existing feeders, risers, wiring and other electrical facilities serving the
Fourth Additional Space to be used by Tenant for such purpose to the extent they
are suitable and safely capable, (iii) Owner agrees to pay such charges and
costs, if any, as such corporation(s) and/or other entity(ies) may impose in
connection with the installation of Tenant's meters, (iv) the provisions of
Subsection C of this Section 29.09 shall be deemed deleted from this Lease, and
(v) this Lease shall remain in full force and effect and such discontinuance
shall not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Owner or
its agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise.
(2) Notwithstanding anything to the contrary contained in
subsection D(1) of this Section 29.09, Owner agrees that Owner shall not
voluntarily discontinue the redistribution or furnishing of electrical energy
until Owner shall have made or paid for all installations required to provide
Tenant with electrical service similar to the electrical service which Tenant
had in the Fourth Additional Space immediately prior to such discontinuance and
the public utility corporation(s) and/or other entity(ies) supplying electrical
service to the Building has agreed to furnish such service so that Tenant shall
immediately upon such discontinuance be able to receive electrical service
directly from such public utility corporation(s) and/or other entity(ies).
Unless a shorter time is required by the public utility corporation(s) and/or
other entity(ies) supplying electrical service to the Building, Owner shall give
Tenant at least ninety (90) days prior notice of any such discontinuance.
E. Notwithstanding anything to the contrary set forth in this
Lease, any sums payable or granted in any way by the corporation(s) and/or other
entity(ies) selected by Owner to supply electricity to the Building resulting
from the installation in the Fourth Additional Space of energy efficient
lighting fixtures, lamps, special supplemental
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heating, ventilation and air conditioning systems or any other Alterations,
which sums are paid or given by way of rebate, direct payment, credit or
otherwise, shall be and remain the property of Owner, and Tenant shall not be
entitled to any portion thereof, unless such lighting fixtures, lamps,
supplemental heating, ventilation and air conditioning systems or other
Alterations were installed by Tenant, solely at Tenant's expense, without any
contribution, credit or allowance by Owner, in accordance with all of the
provisions of this Lease. For the purposes of the preceding sentence, any such
lighting fixtures, lamps, supplemental heating, ventilation and air conditioning
systems or other Alterations comprising part of Owner's Fourth Additional
Construction shall be deemed installed solely at Tenant's expense. Nothing
contained in the foregoing sentence, however, shall be deemed to obligate Owner
to supply or install in the Fourth Additional Space any such lighting fixtures,
lamps, supplemental heating, ventilation and air conditioning systems or other
Alterations.
SECOND: a. From and after the Fourth Additional Space
Commencement Date, the Demised Term shall be automatically extended to the last
day of the calendar month in which the day immediately preceding the date which
is five (5) months next following the fifth (5th) anniversary of the Fourth
Additional Space Commencement Date shall occur so that the Lease and the First,
Second, Third and Fourth Additional Space Agreements shall be co-terminous,
unless sooner terminated pursuant to the provisions of the Lease or pursuant to
law; any such extension shall be upon all of the then applicable executory
terms, covenants and conditions set forth in the Lease (including, but not
limited to, the provisions of Articles 23 and 29).
b. Supplementing the provisions of subsection D of
Section 1.02, after the determination of the Fourth Additional Space
Commencement Date, each party agrees, upon demand of the other, to execute,
acknowledge and deliver to each other, an instrument, in form reasonably
satisfactory to Owner, setting forth said Fourth Additional Space Commencement
Date and the Expiration Date, which instrument shall include the amounts of the
annual and monthly Fixed Rent for the remainder of the Demised Term.
THIRD: Owner and Tenant each represent and warrant to the
other that Xxxxxxxxxxx & Company, L.L.C. is the sole broker with whom either
party has negotiated or otherwise dealt with in connection with the Fourth
Additional Space or in bringing about this Agreement. Owner and Tenant shall
indemnify each other from all loss, cost, liability, damage and expenses,
including, but not limited
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to, reasonable counsel fees and disbursements, arising from any breach of the
foregoing representation and warranty. Owner shall pay any commission or
compensation due hereunder pursuant to a separate agreement with such broker.
FOURTH: As of the date hereof, each floor of the
Fourth Additional Space contains an Americans with Disabilities Act-compliant
core toilet.
FIFTH: Except to the extent expressly modified by the
foregoing provisions of this Agreement, the Lease is hereby ratified and
confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto have here unto set
their hands and seals as of the day and year first above written.
00 XXXXX XXXXXX COMPANY, Owner
By:[illegible on original]
-----------------------
N2K Inc., Tenant
By:/s/ Xxxxxxxx X. Xxxxxxx
-----------------------
Vice Chairman
8
000
XXXXX XX XXX XXXX )
ss:
COUNTY OF NEW YORK )
On the 10th day of October, 1996, before me personally came
Xxxxxxxx X. Xxxxxxx to me known, who, being by me duly sworn, did depose and say
that he resides at
, that he is the Vice Chairman of N2K Inc., the corporation
described in and which executed the foregoing instrument; and that he signed his
name thereto by authority of the Board of Directors of said corporation.
/s/ Xxxx X. Xxxxxxxxxx
----------------------
Notary Public
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ADDENDUM A
OWNER'S FOURTH ADDITIONAL CONSTRUCTION
I. Owner agrees to supply and install in the Fourth Additional
Space all of the items set forth on Tenant's Fourth Additional Plan referred to
in Paragraph IV of this Schedule unless prevented by job conditions or other
circumstances beyond the reasonable control of Owner. In consideration of the
performance of such work by Owner, Tenant shall pay to Owner, from time to time
upon demand, whether or not the Fourth Additional Space Commencement Date shall
have occurred, a sum (referred to as "Tenant's Fourth Additional Construction
Sum") equal to the amount, if any, by which the aggregate of: (a) the actual
cost and expense to Owner of supplying and installing all of the items set forth
on Tenant's Fourth Additional Plan (including, but not limited to, the cost to
Owner of a field superintendent, operating engineer, laborers, freight elevator
costs, rubbish removal, temporary sprinklers and lighting, electric and heat,
protection, insurance, Building Department filing and expediting, Building
permits, any other governmental approvals, blueprint costs and every other item
which customarily would be considered a general condition and, if applicable,
any construction management or other fees paid to the general contractor or
construction manager who is performing Owner's Fourth Additional Construction)
(such aggregate actual cost and expense is referred to as "Owner Construction
Cost") plus (b) if there is no general contractor or construction manager who is
performing Owner's Fourth Additional Construction, ten (10%) percent of Owner's
Construction Cost for office overhead and as a construction management fee,
shall exceed (c) the sum of SEVEN HUNDRED FORTY THOUSAND and 00/100
($740,000.00) DOLLARS. In the event that said sum of SEVEN HUNDRED FORTY
THOUSAND and 00/100 ($740,000.00) DOLLARS shall be in excess of the aggregate
amounts set forth in subdivision (a) and, if applicable, (b) above, Tenant shall
be entitled to apply such excess against any of Tenant's architects, engineers
or designers fees incurred by Tenant in connection with Owner's Fourth
Additional Construction and the cost of any moving expenses and
telecommunications and telephone systems installed in the Demised Premises. In
the event that any further excess remains after such application, Tenant shall
not be entitled to any such further excess. Any such sums due Owner shall be
payable by Tenant to Owner, from time to time, whether or not the Fourth
Additional Space Commencement Date shall have occurred, within five (5) days
next following the rendition of a statement therefor by Owner to Tenant. Tenant
shall furnish to Owner security satisfactory to Owner in an amount at least
equal to Owner's estimate of Tenant's Fourth Additional Construction Sum within
five (5) days after demand by Owner therefor. In the event Owner's estimate of
the amount of Tenant's Fourth
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Additional Construction Sum is increased, then Tenant shall increase the amount
of such security to an amount at least equal to such revised increased estimate
of Tenant's Fourth Additional Construction Sum, within five (5) days after
demand therefor by Owner. In connection with Owner's Fourth Additional
Construction, Owner agrees to employ competitive bidding and to promptly submit
copies of all bids to Tenant and to engage the lowest responsible bidder in each
category after advising Tenant of the bidder selected and, if such bidder is not
the lowest bidder, then the reason for such selection. Tenant and its architect
shall be permitted to participate in the bidding process and awarding of all
contracts.
II. The work and installations required to be performed and
made by Owner pursuant to the provisions of Paragraph I of this Schedule shall
be equal to standards adopted by Owner for the Building. Owner's Fourth
Additional Construction shall constitute a single non-recurring obligation on
the part of Owner. In the event the Lease is renewed or extended for a further
term by agreement or operation of law, Owner's obligation to perform Owner's
Fourth Additional Construction shall not apply to any such renewal or extension.
III. Subject to the provisions of Paragraphs IV(4) and VI of
this Schedule, Owner's Fourth Additional Construction shall be substantially
completed prior to the Fourth Additional Space Commencement Date. At any time
after such substantial completion, Owner may enter the Demised Premises to
complete unfinished details of Owner's Fourth Additional Construction and entry
by Owner, its agents, servants, employees or contractors for such purpose shall
not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of rent or relieve Tenant from any
of its obligations under this Lease, or impose any liability upon Owner or its
agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise.
IV. (1) On or prior to November 1, 1996 with respect to either
the twenty-fifth (25th) floor or the twenty-sixth (26th) floor and November 15,
1996 with respect to the other floor, Tenant, at Tenant's sole cost and expense,
shall prepare and submit to Owner a complete set of detailed plans and
specifications (referred to as "Tenant's Fourth Additional Plan") for those
Alterations to the Fourth Additional Space which Tenant desires Owner to perform
as Owner's Fourth Additional Construction. Tenant shall have the right to
designate which floor it elects to submit plans to Owner on or by November 1,
1996 and November 15, 1996. Tenant's Fourth Additional Plan shall include, but
shall not
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be limited to, engineering plans and specifications and Tenant's Fourth
Additional Plan shall indicate the heat factor, if any, of all equipment
intended to be used in, and the human load factor proposed for, each room or
other area. All engineering drawings and specifications in connection with
Tenant's Fourth Additional Plan (mechanical, electrical, plumbing, etc.) shall
be prepared by licensed professional engineers, at Tenant's expense, selected by
Tenant from a list of engineers submitted by Owner. Tenant's Fourth Additional
Plan shall not designate any area which shall have an electrical load in of
excess of four (4) xxxxx per square foot of usable area for all purposes
(including lighting and power) or which shall have a human occupancy factor in
excess of one (1) person per one hundred (100) square feet of usable area (the
average electrical load and human occupancy factors for which the Building's
HVAC systems have been designed). Tenant's Fourth Additional Plan shall not
designate any work, materials or installations which (i) are not in compliance
with the provisions of Articles 3 and 6 of the Lease; (ii) are not practical and
consistent with the physical conditions in the Building and with the plans for
the Building filed with the Department of Buildings of the City of New York;
(iii) will impair Owner's ability to perform any of Owner's obligations under
the provisions of the Lease; (iv) will affect any portions of the Building other
than the Demised Premises; or (v) does not comply with the provision of Section
29.09. Tenant agrees that Tenant's Fourth Additional Plan and any revisions
thereto shall be, signed, certified and sealed by a registered architect, and,
if required, engineer, duly licensed in the State of New York and approved by
Owner, such approval not to be unreasonably withheld, so that Tenant's Fourth
Additional Plan and any revisions thereto may be filed with, and approved by,
the Department of Buildings of the City of New York.
Tenant's Fourth Additional Plan shall designate a sprinkler
system, and, accordingly, shall designate, subject to compliance with all laws,
orders and regulations of all governmental authorities having jurisdiction, the
location of sprinkler heads and associated piping. Tenant's Fourth Additional
Plan also shall designate all work in the Fourth Additional Space which is
required so that the Fourth Additional Space shall comply with all applicable
provisions of the Americans With Disabilities Act and Local Law #58. Owner's
Fourth Additional Construction shall be performed in accordance with all Legal
Requirements including, but not limited to, the provisions of the Americans With
Disabilities Act.
(2) Tenant's Fourth Additional Plan shall be subject to
Owner's approval, which Owner agrees not
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unreasonably to withhold or delay. Owner's approval of Tenant's Fourth
Additional Plan shall not, unless expressly set forth in such approval, be
deemed to authorize Tenant to make any Alterations in or about the Fourth
Additional Space.
(3) In the event (i) on or prior to November 1, 1996 with
respect to the twenty-fifth (25th) or twenty-sixth (26th) floor and November 15,
1996 with respect to the other floor as designated by Tenant, Tenant shall fail
to submit to Owner a Tenant's Fourth Additional Plan which shall meet with
Owner's approval, or (ii) substantial completion of Owner's Fourth Additional
Construction shall be delayed by reason of Tenant's unreasonable delays in
submitting any other plans or specifications, or in supplying information, or in
approving plans or specifications or estimates, or in giving authorizations or
by reason of any Change Work (as hereinafter defined) or by reason of any other
similar acts or omissions of Tenant, then, in such event, Tenant agrees to pay
to Owner, as agreed liquidated damages for Tenant's failures aforesaid or for
such delays occasioned by Tenant's acts or omissions, as the case may be, sums
equal to one (1) day's rent applicable to the Fourth Additional Space for the
first period of rent applicable thereto for each day that such failure or delay
shall continue.
(4) Tenant, after the submission of Tenant's Fourth Additional
Plan, may designate, subject to Owner's approval, not unreasonably to be
withheld, substitute or additional work, materials or installations (referred
to, collectively, as "Change Work") to be supplied and installed by Owner in
replacement of, or in addition to, the work, materials and installations set
forth on Tenant's Fourth Additional Plan provided that such Change Work: (i) is
in compliance with the provisions of Articles 3 and 6 of the Lease; (ii) is
practical and consistent with the physical conditions in the Building and with
the plans for the Building filed with the Department of Buildings of the City of
New York; (iii) will not impair Owner's ability to perform any of Owner's
obligations under the provisions of the Lease; (iv) will not affect any portions
of the Building other than the Demised Premises; (v) complies with the
provisions of Section 29.09; (vi) shall (a) be signed, sealed and certified by a
registered architect and, if applicable, engineer duly licensed in the State of
New York and (b) comply with all applicable laws, orders, rules and regulations
of governmental authorities so that Tenant's Fourth Additional Plan may without
further amendment or change be used for engineering drawings and specifications
and filed with and approved by the Department of Buildings of the City of New
York; (vii) will not tend to delay completion of Owner's Fourth Additional
Construction; and (viii) shall not designate any area which shall have an
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electrical load in excess of four (4) xxxxx per square foot of usable area for
all purposes (including lighting and power) or which shall have a human
occupancy factor in excess of one (1) person per one hundred (100) square feet
of usable area. At or about the time of the submission by Tenant to Owner of any
Change Work, if it appears to Owner that any item of Change Work designated by
Tenant will tend to delay completion of Owner's Fourth Additional Construction,
or, notwithstanding Owner's approval of any Change Work, if it subsequently
appears to Owner that any item of Change Work designated by Tenant will tend to
delay completion of Owner's Fourth Additional Construction, Owner in each case
shall notify Tenant to that effect and Tenant, within five (5) days after notice
from Owner to that effect, will designate, subject to the foregoing limitations
(i) through (viii), other available items of Change Work which will not so tend
to delay completion. If Tenant fails to make such designations within five (5)
days after said notice from Owner, Owner will have no obligation to supply or
install the items set forth in such Owner's notice or, at Owner's election,
Owner shall have the right to perform such items of Change Work in accordance
with the provisions of this Schedule, except that, solely for the purpose of
determining whether or not Owner's Fourth Additional Construction has been
substantially completed and for the purpose of fixing the Fourth Additional
Space Commencement Date, such items of Change Work and all other related work
and installations shall be deemed unfinished details of Owner's Fourth
Additional Construction which may be performed after the Fourth Additional Space
Commencement Date in accordance with the provisions of Paragraph III of this
Schedule and, accordingly, shall not affect the Fourth Additional Space
Commencement Date.
V. INTENTIONALLY DELETED
VI. At or about the time that Owner shall notify Tenant of the
approval of Tenant's Fourth Additional Plan, such notice of approval shall state
which items contained in Tenant's Fourth Additional Plan, if any, will or might
be subject to certain delays in delivery and which might affect the date of
substantial completion of Owner's Fourth Additional Construction. Tenant may,
within five (5) days after such notice from Owner, designate, subject to the
limitations (i) through (viii) set forth in subparagraph (4) of Paragraph IV,
other available items which will not be subject to delays in delivery. If Tenant
fails to timely make such designations, Owner will have no obligation to supply
or install the items set forth in such Owner's notice or, at Owner's election,
Owner shall have the right to perform such items and for the purpose of
determining whether or not Owner's Fourth Additional Construction shall have
been substantially completed and for the purpose of
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fixing the Fourth Additional Space Commencement Date, said items set forth in
such notice and all other related work and installations (sometimes hereinafter
referred to collectively as "Long Lead Items") shall be deemed unfinished
details of Owner's Fourth Additional Construction which may be performed by
Owner after the substantial completion of Owner's Fourth Additional Construction
in accordance with the provisions of Paragraph III of this Schedule and,
accordingly, shall not affect the Fourth Additional Space Commencement Date.
6