EXHIBIT 10.15
[LETTERHEAD OF SAGE REALTY CORPORATION APPEARS HERE]
May 6, 1997
CitySearch, Inc.
000 Xxxx Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, XX 00000
Re: Lease, dated May 6, 1997 (the "Lease"),
between Sage Realty Corporation, as Agent
("Landlord"), and CitySearch Inc. ("Tenant"),
for a portion of the third (3rd) floor (the
"Demised Premises") in the building known as
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
---------------------------------------------
Gentlemen:
This letter shall serve to confirm our understanding with respect to the
referenced Lease. All capitalized terms used herein shall have the meaning
ascribed to them in the Lease unless otherwise indicated.
Landlord, as agent for the owner of the building located 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Building"), and Tenant hereby agree that Tenant
shall occupy that portion of the 34th floor of the Building as shown on Exhibit
A annexed hereto and made a part hereof (the "Temporary Space") during the
period (the "Temporary Space Term") commencing on the date hereof and ending on
the earlier to occur of (i) the Commencement Date or (ii) October 1, 1997.
During the Temporary Space Term, Tenant shall occupy the Temporary Space
in accordance with all of the terms and conditions of the Lease which would be
applicable to the
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Temporary Space if the Temporary Space were the Demised Premises, except that
Tenant shall have no obligation to pay Fixed Rent or additional rent due under
Article 3 of the Lease and in lieu thereof, Tenant shall pay to Landlord the sum
of $2,647.88 per month for each month (pro-rated for any partial month)
occurring during the Temporary Space Term. It is understood and agreed that
Tenant shall not be obligated to pay to Landlord Fixed Rent or other charges for
usual services in connection with its occupancy of the Temporary Space but if
Tenant specifically requests and receives any overtime or additional services
from Landlord, Tenant shall pay Landlord's customary charges therefor.
In the event that Tenant shall fail to vacate and surrender the
Temporary Space on or prior to October 1, 1997, all of the provisions of Article
28 of the Lease shall be applicable to Tenant with respect to the Temporary
Space as if the Temporary Space were the Demised Premises under the Lease, and
Landlord shall have all of the rights of Landlord set forth in the Lease with
respect to the Temporary Space as if the Temporary Space were the Demised
Premises. For the purposes of Section 28.03, the average rent and additional
rent referred to therein shall with respect to the Temporary Space be deemed to
be $8,726.48 per month.
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Please execute a copy of this Letter Agreement where indicated to
acknowledge your agreement with the foregoing.
SAGE REALTY CORPORATION, AGENT
By: [SIGNATURE ILLEGIBLE]
-----------------------------
Accepted and Agreed to this
1st day of May, 1997.
CITYSEARCH, INC.
By: [SIGNATURE ILLEGIBLE]
------------------------
[LETTERHEAD OF SAGE REALTY CORPORATION APPEARS HERE]
May 6, 1997
CitySearch, Inc.
000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Re: Proposed lease (the "Lease") between Sage Realty
Corporation, as Agent ("Landlord"), and
CitySearch, Inc. ("Tenant") for space located in
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX (the
"Building")
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Gentlemen:
Notwithstanding the requirement contained in Section 3.01 of the Lease
to the effect that Tenant's checks must be drawn on a member of the New York
Clearinghouse Association, provided checks are received by Landlord on or before
the fifth (5th) Business Day of each calendar month, Tenant may utilize checks
which are drawn on a Californai bank which is not a member of the New York
Clearinghouse Association. In the event that any check is received after the
fifth (5th) Business Day of any calendar month, Tenant acknowledges that
Landlord may strictly enforce the terms and conditions of Section 3.01 and
require checks to be drawn on a bank which is a member of the New York
Clearinghouse Association.
Please sign a copy of this letter where indicated to acknowledge your
consent to the foregoing.
SAGE REALTY CORPORATION,
AS AGENT
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxx Xxxxxxx, Executive
Vice President
Accepted and Agreed to
this 1st day of May, 1997
CITYSEARCH, INC.
By: [SIGNATURE ILLEGIBLE]
------------------------
SAGE REALTY CORPORATION, AGENT
LANDLORD
and
CITYSEARCH, INC.
TENANT
INDENTURE OF LEASE
PREMISES: Part of the Third Floor
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
TABLE OF CONTENTS
-----------------
1. DEFINITIONS, TERM................................................. 1
2. COMMENCEMENT OF TERM.............................................. 2
3. FIXED RENT, ADDITIONAL RENTS AND RENT ADJUSTMENTS................. 3
REAL ESTATE TAX ADJUSTMENT........................................ 5
4. ELECTRICITY....................................................... 7
5. USE............................................................... 13
6. REPAIRS, ALTERATIONS AND LIENS.................................... 13
7. FLOOR LOAD, NOISE, WINDOW CLEANING................................ 20
8. LAWS, ORDINANCES, REQUIREMENTS OF PUBLIC AUTHORITIES ............. 21
9. INSURANCE, PROPERTY LOSS, REIMBURSEMENT........................... 22
10. DAMAGE OR DESTRUCTION BY FIRE OR OTHER CAUSE...................... 25
11. ASSIGNMENT, SUBLETTING, MORTGAGING................................ 27
12. NO LIABILITY ON LANDLORD.......................................... 33
13. MOVING OF HEAVY EQUIPMENT......................................... 34
14. CONDEMNATION...................................................... 34
15. ENTRY, RIGHT TO CHANGE PUBLIC PORTIONS OF THE BUILDING............ 35
16. BANKRUPTCY........................................................ 37
17. DEFAULTS AND REMEDIES AND WAIVER OF REDEMPTION.................... 38
18. LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS ................. 41
19. COVENANT OF QUIET ENJOYMENT....................................... 42
20. EXCAVATION........................................................ 42
21. SERVICES AND EQUIPMENT............................................ 42
22. DEFINITION OF LANDLORD............................................ 46
23. INVALIDITY OF ANY PROVISION....................................... 47
24. BROKER............................................................ 47
25. SUBORDINATION..................................................... 47
26. ESTOPPEL CERTIFICATE.............................................. 49
27. LEGAL PROCEEDINGS, WAIVER OF JURY TRIAL........................... 50
28. SURRENDER OF PREMISES/HOLDOVER.................................... 52
29. RULES AND REGULATIONS............................................. 53
30. NOTICES........................................................... 53
31. NO WAIVER; ENTIRE AGREEMENT....................................... 54
32. CAPTIONS.......................................................... 55
33. INABILITY TO PERFORM.............................................. 55
34. REPRESENTATION BY LANDLORD........................................ 56
35. NAME OF BUILDING.................................................. 56
36. SUCCESSORS AND ASSIGNS............................................ 56
37. DEFERRED COLLECTIONS.............................................. 56
38. FEES/INTEREST/LATE CHARGES........................................ 57
39. ABATEMENT OF RENT................................................. 57
40. SECURITY DEPOSIT.................................................. 58
41. TENANT'S EXPANSION OPTION......................................... 59
42. TENANT'S EXTENSION OPTION. ....................................... 62
Schedule A Floor Plan
Schedule B Work Letter
Schedule C Rule and Regulations
Schedule D Form of Letter of Credit
Schedule E Schedule of Building Holidays
Schedule F Electric Survey
ii
INDENTURE OF LEASE made as of this 6th day of May, 1997, between SAGE
REALTY CORPORATION, a New York corporation having its principal office at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Agent for the owner of the Building
hereinafter mentioned (herein "Landlord"), and CITYSEARCH, INC., a Delaware
corporation having its office at 000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000 (herein "Tenant").
W I T N E S S E T H:
ARTICLE 1.
DEFINITIONS, TERM
-----------------
Section 1.01. The terms defined in this Article shall, for all purposes of
this Lease and all agreements supplemental thereto, have the meanings herein
specified unless the context otherwise requires.
(a) "Building" shall mean the office building known as 000 Xxxx 00xx
Xxxxxx, in the Borough of Manhattan, City and State of New York. The plot of
land on which the Building is erected is hereinafter called the "Land."
(b) "Business Days" shall mean all days excluding Saturdays, Sundays
and days observed by the State of New York or Federal Government as legal
holidays, and further excluding holidays established by any union contract
applicable to employees at the Building. A schedule of holidays for calendar
year 1997 is attached hereto as Schedule E.
(c) "Commencement Date" shall have the meaning set forth in Section
2.02.
(d) "Demised Premises" shall mean a portion of the third (3rd) floor
of the Building, as shown on the Floor Plan annexed hereto as Schedule A and
made a part of this Lease, including all fixtures and equipment which at the
Commencement Date or during the Term of this Lease are attached thereto and
which become a part thereof.
(e) "Expiration Date" shall mean the last day of the month in which
the day prior to the seventh (7th) anniversary of the Commencement Date occurs,
or any sooner date of termination pursuant to the provisions hereof.
(f) "Fixed Rent" shall mean the annual rental payable by Tenant for
the Demised Premises in equal monthly installments as provided for in Article 3
of this Lease.
(g) "Interest Rate" shall mean the lesser of (i) 2% above the prime
commercial lending rate of Marine Midland Bank, N.A. in effect from time to time
or (ii) the maximum applicable legal rate, if any.
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(h) "Landlord's Work" shall mean the work agreed to be done by
Landlord in the Demised Premises as provided for in Schedule B hereof.
(i) "Lease" shall mean this Indenture of Lease and any and all
Schedules annexed hereto.
(j) "Term of this Lease" and "Term" shall mean the term of years
commencing on the Commencement Date and expiring on the Expiration Date, subject
to the terms and conditions hereinafter set forth.
Section 1.02. Landlord hereby leases to Tenant, and Tenant hereby rents
from Landlord, the Demised Premises, subject to the provisions hereinafter set
forth, together with appurtenances, including the right to use in common with
others the lobbies, elevators and other public portions of the Building.
TO HAVE AND TO HOLD unto Tenant, its successors and permitted assigns, for
the Term of this Lease or until the Term of this Lease sooner terminates as
hereinafter provided.
ARTICLE 2.
COMMENCEMENT OF TERM
--------------------
Section 2.01. Except as provided in Section 2.02 hereof, Tenant
acknowledges that it has examined the Demised Premises and is taking same "as
is" as of the Commencement Date. Tenant acknowledges that Landlord is not
required to do any work with respect thereto, except as set forth in Schedule B.
Section 2.02. The Term of this Lease and the payment of rent shall commence
on the date that the Demised Premises shall be Substantially Completed, as
defined in Schedule B (herein the "Commencement Date"). Promptly after the
Commencement Date, Landlord and Tenant agree to execute an agreement
("Commencement Date Agreement") in form and substance satisfactory to Landlord
setting forth, among other things, the Commencement Date and the Expiration Date
of this Lease.
The taking of possession by Tenant of the Demised Premises shall be deemed
an acceptance of same by Tenant and shall be conclusively deemed Substantial
Completion (as defined in Schedule B) of Landlord's Work. Such taking of
possession shall also be conclusive evidence, as against Tenant, that the
Demised Premises and the Building of which the same form a part were in good and
satisfactory condition at the time of such occupancy (except for so-called
"punchlist" items and latent defects, if any) and that the Demised Premises were
substantially as shown on Schedule A. Landlord shall, however, thereafter
complete any "punchlist" items required for completion of Landlord's Work.
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Section 2.03. If Landlord shall be unable to give possession of the Demised
Premises on the date anticipated for the commencement of the Term hereof for any
reason whatsoever, Landlord shall not be subject to any liability, nor shall the
validity of this Lease nor the obligations of Tenant hereunder be thereby
affected. Landlord shall use diligent efforts to substantially complete the work
necessary to deliver possession of the Demised Premises promptly, subject to any
delays beyond the reasonable control of Landlord. In the event that Landlord
shall be unable to give possession of the Demised Premises on or prior to August
1, 1997 (the" Outside Completion Date") (subject to extension by reason of force
majeure [set forth immediately below]), Tenant shall be entitled to a credit
against the first installments of Fixed Rent due hereunder (after taking into
account any abatement of Fixed Rent as provided in Article 39 hereof), in the
amount of $395.52 per day for each day beyond the Outside Completion Date that
Landlord shall remain unable to deliver possession of the Demised Premises. Any
delay in Landlord's substantial completion of Landlord's Work caused by labor
trouble, governmental controls, act of God, or any other cause beyond Landlord's
reasonable control shall extend such time period for Landlord to substantially
complete Landlord's Work and give possession of the Demised Premises to Tenant.
Without limiting the foregoing, the parties hereto expressly negate the
provisions of Section 223-a of the Real Property Law and agree that such Section
shall be inapplicable hereto. Tenant agrees that the provisions of this Article
are intended to constitute "an express provision to the contrary" within the
meaning of Section 223-a. If by reason of such delay, the Term of this Lease
shall commence subsequent to such anticipated date, the Term of this Lease shall
be deemed extended for the same period.
ARTICLE 3.
FIXED RENT, ADDITIONAL RENTS AND RENT ADJUSTMENTS
-------------------------------------------------
Section 3.01. During the Term of this Lease, Tenant shall pay, at
Landlord's address as herein set forth, or at such other address that Landlord
may from time to time designate, a Fixed Rent payable in lawful money of the
United States of America (by check of Tenant drawn on a bank that is a member of
the New York Clearinghouse Association) in equal monthly installments in advance
on the first day of each calendar month, without notice or demand, and without
setoff or deduction whatsoever at annual rates as follow:
(i) $164,785.44 per annum for the period beginning on the
Commencement Date and continuing through the day prior to
the first (1st) anniversary of the Commencement Date;
(ii) $173,605.44 per annum for the period beginning on the
first (1st) anniversary of the Commencement Date
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and continuing through the day prior to the second (2nd)
anniversary of the Commencement Date;
(iii) $178,060.44 per annum for the period beginning on the
second (2nd) anniversary of the Commencement Date and
continuing through the day prior to the third (3rd)
anniversary of the Commencement Date;
(iv) $191,515.44 per annum for the period beginning on the third
(3rd) anniversary of the Commencement Date and continuing
through the day prior to the fourth (4th) anniversary of
the Commencement Date;
(v) $205,240.44 per annum for the period beginning on the
fourth (4th) anniversary of the Commencement Date and
continuing through the day prior to the fifth (5th)
anniversary of the Commencement Date; and
(vi) $214,735.44 per annum for the period beginning on the fifth
(5th) anniversary of the Commencement Date and continuing
through the day prior to the sixth (6th) anniversary of the
Commencement Date; and
(vii) $224,365.44 per annum for the period beginning on the sixth
(6th) anniversary of the Commencement Date and continuing
through the Expiration Date.
If Tenant's obligation to pay Fixed Rent shall commence on a date
other than the first day of a calendar month, the first installment of Fixed
Rent shall be in an amount equal to that required to cover the period up to and
including the last day of the month wherein the obligation to pay Fixed Rent
occurs, computed on a per diem basis.
Section 3.02. The Fixed Rent does not take into account increases
of real estate taxes and/or expenses during the Term of this Lease or other
adjustments in rent, or other payments to be made by Tenant, during the Term of
this Lease. Provision therefor is hereinafter made.
Section 3.03. All costs, expenses, adjustments and payments which
Tenant is obligated to pay to Landlord pursuant to this Lease and/or its
Schedules shall be deemed additional rent whether or not denominated as such
and, in the event of nonpayment thereof, Landlord shall have all rights and
remedies with respect thereto as herein provided for in case of nonpayment of
Fixed Rent.
Tenant covenants and agrees to pay the Fixed Rent and additional
rent as in this Lease provided, when due.
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Section 3.04. For the purposes of this Section 3.04, the following
definitions shall apply:
(a) The term "Base Tax Year" as hereinafter set forth for the
determination of real estate tax escalation shall mean the period commencing on
July 1, 1997 and ending on June 30, 1998.
(b) The term "the Percentage" shall mean 2.38%.
(c) The term "Real Estate Taxes" shall mean all real estate taxes,
assessments, water and sewer rents, governmental levies, county taxes or any
other governmental charges, general or special, ordinary or extraordinary,
unforeseen as well as foreseen, of any kind or nature whatsoever, which are or
may be assessed or imposed upon the Land, the Building and the sidewalks, plazas
or streets in front of or adjacent thereto, including any tax, excise or fee
measured by or payable with respect to any rent, and levied against Landlord
and/or the Land and/or Building, under the laws of the United States, the State
of New York, or any political subdivision thereof, or by the City of New York,
or any political subdivision thereof. If, due to a future change in the method
of taxation or in the taxing authority, a franchise, income, transit, profit or
other tax or governmental imposition, however designated, shall be levied
against Landlord, and/or the Land and/or the Building, in substitution in whole
or in part for said Real Estate Taxes, or in lieu of additional real estate
taxes, then such franchise, income, transit, profit or other tax or governmental
imposition shall be deemed to be included within the definition of "Real Estate
Taxes" for the purposes hereof. In the event that the Real Estate Taxes for the
Base Tax Year shall include any charge with respect to any so called "Business
Improvement District" or similar charge (a "Bid Charge"), and if any such Bid
Charge is subsequently discontinued or eliminated, then, as of the date of such
discontinuance or elimination, the Real Estate Taxes for the Base Tax Year shall
be recalculated as if the Bid Charge had not originally been included therein.
(d) The term "Tax Year" shall mean every twelve-month consecutive
period commencing each July 1st during the Term of this Lease.
Real Estate Tax Adjustment
In the event that the Real Estate Taxes payable for any Tax Year shall
exceed the amount of such Real Estate Taxes, as finally determined, payable with
respect to the Base Tax Year, Tenant shall pay to Landlord, as additional rent
("Tenant's Tax Payment") for such Tax Year, an amount equal to the Percentage of
the excess. By or after the start of the Tax Year following the Base Tax Year,
and by or after the start of each Tax Year thereafter, Landlord shall furnish to
Tenant a statement of the
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Real Estate Taxes payable with respect to such Tax Year, and a statement of the
Real Estate Taxes payable during the Base Tax Year. Notwithstanding the
foregoing, in the event that the Real Estate Taxes for any Tax Year shall be
more than fifty (50%) percent in excess of the Real Estate Taxes for the
preceding Tax Year (or, with regard to the First Tax Year, more than fifty (50%)
percent in excess of the Real Estate Taxes for the Base Tax Year), Tenant's Tax
Payment shall be limited to the amount that Tenant's Tax Payment would be if
there had been only a fifty (50%) percent year to year increase in Real Estate
Taxes.
Within thirty (30) days after the issuance by the governmental authority
having jurisdiction thereover of tax bills for Real Estate Taxes assessed,
levied and/or imposed upon the Land and Building for any Tax Year, Landlord
shall submit to Tenant a photostatic copy of such xxxx and/or bills and
thereafter on or about each respective anniversary date shall submit a copy of
the tax xxxx and/or bills for the Real Estate Taxes assessed, levied or imposed
upon the Land and Building for such Tax Year, together with a statement which
shall indicate the amount, if any, of Tenant's Tax Payment. Landlord's failure
to submit copies of bills as aforesaid shall not be considered a default by
Landlord or a defense by Tenant to such tax payment.
Within thirty (30) days after the issuance of the statement Tenant shall
pay Tenant's Tax Payment in the amount set forth on such statement. Such
statement shall be conclusively deemed binding upon Tenant unless Tenant shall
have objected thereto in writing within thirty (30) days of receipt thereof.
In the event Landlord shall receive a final reduction or refund of Real
Estate Taxes for any Tax Year for which Tenant is obligated to pay any
additional rent under the provisions of this subsection B of Section 3.04, the
amount or the proceeds of such reduction or refund, less legal fees and other
expenses incurred in collecting the same or achieving such reduction, shall be
applied and allocated to the periods for which such final reduction or refund
was obtained, and proper adjustment shall be made between Landlord and Tenant.
Tenant has been advised that proceedings to protest the Real Estate Tax
Assessment for the Base Tax Year may have been filed and may result in a
reduction of Real Estate Taxes for the Base Tax Year.
Any payments or refunds due hereunder for any period of less than a full
Tax Year at the commencement or end of the Term of this Lease shall be equitably
prorated to reflect such event.
In addition to Tenant's obligation to pay Tenant's Tax Payment as
aforesaid, Tenant shall pay to Landlord as additional rent payable upon demand,
any occupancy tax or rent tax now in effect or hereafter enacted, if payable by
Landlord in the first instance or hereafter required to be paid by Landlord.
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Section 3.05. Upon the date of the expiration or any sooner termination of
this Lease, whether the same be the date hereinabove set forth as the expiration
of the Term of this Lease or any prior or subsequent date, a proportionate share
of the Fixed Rent, adjustments and additional rents for the year (calendar or
fiscal) in which such expiration or termination occurs, shall immediately become
due and payable by Tenant to Landlord as hereinafter provided, if not
theretofore already billed and paid. Such proportionate share shall be based
upon the length of time that this Lease shall have been in existence during such
year. Promptly after any such expiration or termination, Landlord shall compute
the amounts due from Tenant, as aforesaid, which computations shall either be
based on that year's actual figures or be an estimate based on the most recent
statements theretofore prepared by Landlord and furnished to Tenant pursuant to
this Lease. If an estimate is used, then Landlord shall promptly cause
statements to be prepared on the basis of the comparative year's actual figures
as soon as they are available, and within ten (10) days after such statement or
statements are prepared by Landlord and furnished to Tenant, Landlord and Tenant
shall make appropriate adjustments of any estimated payments theretofore made.
Tenant's obligation to pay any and all rents, adjustments and additional
rents under this Lease shall continue and shall cover all periods up to the
Expiration Date. Landlord's and Tenant's obligations to make the adjustments
hereinabove referred to shall survive any expiration or termination of this
Lease. Any delay or failure of Landlord in billing any Fixed Rent or additional
rent herein provided for shall not constitute a waiver of or in any way impair
the continuing obligation of Tenant to pay such rent adjustments hereunder.
ARTICLE 4.
ELECTRICITY
-----------
Section 4.01. The Fixed Rent reserved in this Lease includes the agreed sum
of $20,785.44 per annum in consideration of which Landlord, as an additional
service, will supply Tenant with electricity for normal use in the Demised
Premises between the hours 8:00 A.M. and 6:00 P.M. on Business Days. Landlord
and Tenant agree that the aforesaid sum was determined based on an electrical
survey, a copy of which is annexed hereto as Schedule F and made a part hereof
(the "Electric Survey"). Electricity shall be supplied 24 hours a day, seven
days a week, however in the event Tenant uses electricity in excess of that
contemplated in the Electric Survey, the Fixed Rent reserved herein may be
increased as provided in Section 4.03 hereof. If Landlord's electric rates
(i.e., the public utility rate schedule at the time in question, including all
surcharges, taxes, fuel adjustments, taxes regularly passed on to consumers by
the public
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utility, and other sums payable in respect thereof for the supply of electric
energy to Landlord for the Building) are increased, the Fixed Rent reserved in
this Lease shall be adjusted by applying to the sum specified above, the same
percentage as such rate increase, and such adjusted Fixed Rent shall be billed
by Landlord to Tenant, with effect as of the date of the increase of Landlord's
electric rate. Landlord shall not be liable in any way to Tenant for any failure
or defect in the supply or character of electric energy furnished to the Demised
Premises by reason of any requirement, act or omission of the public utility
serving the Building with electricity or for any other reason not attributable
to the Landlord. At Landlord's option, Tenant shall purchase from the Landlord
or Landlord's agent all lighting tubes, lamps, bulbs and ballasts used in the
Demised Premises and Tenant shall pay Landlord's reasonable charges therefor
which shall be commercially competitive, for providing and installing same on
demand, as additional rent; if Landlord's charges shall cease to be commercially
competitive, Tenant shall no longer be required to purchase same from Landlord
or Landlord's agent
Section 4.02. Tenant's use of electric energy in the Demised Premises shall
not at any time exceed the capacity of any of the electrical conductors,
machinery and equipment in or otherwise serving the Demised Premises. In order
to insure that such capacity is not exceeded and to avert possible adverse
effect upon the Building electric service, Tenant shall not, without Landlord's
prior written consent in each instance, connect any additional fixtures,
machinery, appliances or equipment to the Building electric distribution system
or make any alteration or addition to the equipment specified on the Electric
Survey, or the electric system of the Demised Premises existing on the
Commencement Date other than lamps, typewriters, copiers, computer terminals,
copying machines, communications equipment such as telephones, fax machines,
appliances, and other small office machines necessary for Tenant's use of the
Demised Premises that consume comparable or less amounts of electricity. Should
Landlord grant such consent, all additional risers or other equipment required
therefor shall be provided by Landlord, and the cost thereof shall be paid by
Tenant upon Landlord's demand. As a condition to granting such consent, Landlord
may require Tenant to agree to an increase in the Fixed Rent by an amount which
will reflect the value to Tenant (which shall be based upon what Tenant would
pay the public authority for such service if the same were supplied directly to
Tenant) of the additional service to be furnished by Landlord, that is, the
potential additional electrical energy to be made available to Tenant based upon
the estimated additional capacity of such additional risers or other equipment.
If Landlord and Tenant cannot agree on the amount of such increase, Tenant shall
nevertheless pay the same as billed until such amount shall be determined by an
independent utility consultant to be selected by Landlord and paid equally by
Landlord and Tenant. The determination of the consultant shall be binding upon
the
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parties. When the amount of such increase is so determined, the parties shall
execute an agreement supplementary hereto to reflect such increase in the amount
of the Fixed Rent stated in this Lease and in the amount set forth in Section
4.01, effective from the date such additional service is made available to
Tenant, but such increase shall be effective from such date even if such
supplementary agreement is not executed.
Section 4.03. If there shall be an increase in the space constituting the
Demised Premises, or if Tenant's failure to maintain its machinery and equipment
in good order and repair causes greater consumption of electrical current, or if
Tenant uses electricity in excess of that contemplated in the Electric Survey,
the Fixed Rent herein reserved shall be increased accordingly. The amount of
such increase shall be billed by Landlord to Tenant, effective as of the date of
the increased usage. Such sum shall be due, and shall be paid by Tenant, as
additional rent hereunder at the time billed. If Tenant disputes the amount of
such increase, Tenant shall nevertheless pay the same as billed, and the amount
shall be determined by an independent utility consultant to be selected and paid
equally by Landlord and Tenant. The determination of the consultant shall be
binding upon the parties.
Section 4.04. A. Landlord reserves the right to discontinue furnishing
electric energy to Tenant in the Demised Premises at any time upon not less than
ninety (90) days prior written notice to Tenant provided that Landlord shall
have made such election as to the majority of all tenants occupying the Building
and further provided that electric service is available directly from the public
utility servicing the Building (Landlord hereby agreeing, unless otherwise
required by law, not to discontinue furnishing electricity to Tenant until such
time as Tenant is able to obtain same directly from the public utility). If
Landlord exercises such right of termination, this Lease shall continue in full
force and effect and shall be unaffected thereby, except only that, from and
after the effective date of such termination, Landlord shall not be obligated to
furnish electric energy to Tenant and the Fixed Rent under this Lease shall be
reduced by the amount set forth in Section 4.01, plus or minus the amount of any
change pursuant to Sections 4.01, 4.02, 4.03 and 4.05. If Landlord so
discontinues furnishing electric energy to Tenant, Tenant shall arrange to
obtain electric energy directly from the public utility company furnishing
electric service to the Building. Such electric energy may be furnished to
Tenant by means of the then existing Building system feeders, risers and wiring
to the extent that the same are available, suitable and safe for such purposes.
All meters and additional panel boards, feeders, risers, wiring and other
conductors and equipment which may be required to obtain electric energy
directly from such public utility company shall be installed and maintained by
Tenant at its expense.
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B. In the event that Landlord shall discontinue furnishing electric energy
to Tenant as provide above, if Tenant's cost of electric energy as charged by
the public utility shall be in excess of one hundred thirty (130%) percent of
the amount Tenant was paying to Landlord immediately preceding such
discontinuance (and provided that Tenant has not used amounts of electricity
more than when Landlord was furnishing electric energy to Tenant), then Tenant
shall have the option to terminate this Lease upon ten (10) days prior written
notice to Landlord and upon the expiration of such ten (10) day period, this
Lease shall cease and terminate and be of no further force or effect.
Section 4.05. Tenant covenants and agrees that at no time will the
connected electrical load serving the Demised Premises exceed 5 xxxxx per square
foot. Should Landlord consent to an increase in the connected electrical load,
as a condition to granting such consent, Landlord may require Tenant to agree to
an increase in the Fixed Rent by an amount which will reflect the value to
Tenant of the additional connected electrical load. If Tenant disputes the
amount, Tenant shall nevertheless pay the same as billed, and the amount shall
be determined by an independent utility consultant to be selected and paid
equally by Landlord and Tenant. The determination of the consultant shall be
binding upon the parties.
Section 4.06. If any tax is imposed upon Landlord with respect to
electrical energy furnished as a service to Tenant by any Federal, State or
Municipal Authority, Tenant covenants and agrees that where permitted by law or
applicable regulations, Tenant's pro rata share of such taxes shall be
reimbursed by Tenant to Landlord.
Section 4.07. (a) Landlord shall have the right to procure periodic
surveys made by an independent utility consultant selected by Landlord and if
such utility consultant determines that there has been (i) an increase in
Tenant's use of electrical current or (ii) the amount set forth in Section 4.01
is insufficient, then, the amount set forth in Section 4.01 shall be adjusted
and in addition to the other requirements and obligations imposed on Tenant in
this Article, Landlord shall pay the fees of the utility consultant making such
survey. The findings of such utility consultant shall be binding and conclusive
upon the parties. Notwithstanding anything contained in this Article 4 to the
contrary, provided Tenant continues to use amounts of electricity as
contemplated in the Electric Survey, Landlord agrees that the amount set forth
in Section 4.01 shall not be subject to increase for a period of two (2) years
after the Commencement Date.
(b) If Tenant wishes to dispute any determination of the
additional rental value of electricity service to the Demised Premises on the
basis of any survey made pursuant to Section 4.07(a) or as otherwise determined
pursuant
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to Sections 4.02 and 4.03 hereof, it shall notify Landlord to such effect
within thirty (30) days after receipt of written notice of such determination.
Unless and until such dispute is determined in Tenant's favor, Tenant shall pay
the Fixed Rent as computed in accordance with such determination. The dispute
shall be determined in the following manner: Tenant shall retain an independent
electrical engineer or consultant ("Tenant's Consultant") to review Landlord's
survey or other basis of Landlord for such determination, as the case may be,
and, if deemed advisable, to make an independent survey. Not later than thirty
(30) days after Tenant shall have given Landlord the notice of dispute, Tenant
shall deliver to Landlord (i) Tenant's Consultant's comments on Landlord's
survey or on Landlord's other basis for such determination, and/or (ii) Tenant's
Consultant's survey. Landlord shall refer such comments and/or survey to the
consultant who prepared the original survey or to its electrical consultant
("Landlord's Consultant") who shall meet with Tenant's Consultant for the
purpose of reaching agreement upon the additional rental value of the
electricity service to the Demised Premises. If they are unable to reach such
agreement within thirty (30) days after the delivery of such comments or report,
Landlord's Consultant and Tenant's Consultant shall appoint a disinterested
third electrical consultant, who shall, within twenty (20) days thereafter,
resolve whatever differences may remain between Landlord's Consultant and
Tenant's Consultant and on the basis of such resolution determine the additional
rental value of the electricity service to the Demised Premises. If Landlord's
Consultant and Tenant's Consultant are unable to agree upon a disinterested
third electrical consultant within the thirty (30) day period above specified
for agreement between Landlord's Consultant and Tenant's Consultant, and if the
parties are unable to agree upon such a third electrical consultant within ten
(10) days thereafter, either party, upon written notice to the other, may apply
for the appointment of such a third electrical consultant to the President of
the Real Estate Board of New York, Inc. or any organization successor thereto,
or in his absence or refusal or failure to act, to the Supreme Court of the
State of New York in the County of New York. The fees and expenses of
Landlord's Consultant shall be borne entirely by Landlord. The fees and
expenses of Tenant's Consultant shall be borne entirely by Tenant. The fees and
expenses of the disinterested third electrical consultant shall be shared
equally by Landlord and Tenant. If and to the extent that the additional rental
value of the electricity service to the Demised Premises shall be so determined
to be less than the value originally determined by Landlord's Consultant, the
amount of the resulting overpayment of the Fixed Rent shall be refunded by
Landlord to Tenant on Tenant's demand therefor.
Section 4.08. Notwithstanding the aforesaid provisions of this Article,
if, pursuant to an action of the Public Service Commission of the State of New
York, or otherwise, submetering of electricity is permitted at the Building
then Landlord shall,
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have the option, at Landlord's sole cost and expense, of installing submeters to
measure Tenant's electricity consumption. Upon installation of the submeters,
Tenant's electricity consumption and demand shall be measured by said submeters,
and subject to the terms and conditions of Section 4.09 hereof, Tenant agrees to
purchase such electricity from Landlord or Landlord's designated agent at
Landlord's electric rates, plus five (5%) percent thereof to reimburse Landlord
for administrative services in connection with supplying and billing such
electricity and for line loss. All such sums shall be paid by Tenant to
Landlord as additional rent hereunder. If more than one meter measures the
electricity consumption and demand of Tenant in the Building, the service
rendered through each meter shall be aggregated and billed in accordance with
the above rate classification, unless Landlord shall elect separate billing on a
per-meter basis. Landlord may at any time render bills for Tenant's consumption
and demand and Tenant shall pay the same within thirty (30) days following the
date the same are rendered. If Landlord exercises such right of submetering,
this Lease shall continue in full force and effect and shall be unaffected
thereby, except only that, from and after the effective date of such
submetering, the Fixed Rent under this Lease shall be reduced by the amount set
forth in Section 4.01, plus or minus the amount of any change pursuant to
Sections 4.01, 4.02, 4.03 and 4.05, and Tenant shall purchase electric energy
pursuant to this Section 4.08.
Section 4.09. If at any time during the Term of this Lease Tenant shall be
legally able to obtain electric energy from a third party supplier, Landlord
agrees that Tenant, upon not less than 30 days prior written notice, shall have
the option to do so. Such electric energy furnished by said third party
supplier may be furnished to Tenant by means of the then existing Building
system feeders, risers and wiring but only to the extent that same are
available, suitable and safe for such purposes. Any meters, panel boards,
feeders, risers, wiring and other conductors and equipment which may be required
to obtain electric energy directly from such third party supplier shall be
installed and maintained by Tenant at its sole cost and expense. If Tenant
exercises its option as aforesaid, this Lease shall continue in full force and
effect and shall be unaffected thereby, except only that, from and after the
date Tenant begins receiving electric energy from said third party supplier,
Landlord shall not be obligated to furnish electric energy to Tenant and the
Fixed Rent under this Lease shall be reduced by the amount set forth in Section
4.01, plus or minus the amount of any change pursuant to Sections 4.01, 4.02,
4.03 and 4.05.
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ARTICLE 5.
USE
---
Section 5.01. Tenant shall use and occupy the Demised Premises for
administrative, executive and general business office purposes only and for no
other purposes.
Section 5.02. Tenant shall not suffer or permit the Demised Premises or
any part thereof to be used in any manner, or suffer or permit anything to be
done therein, or suffer or permit anything to be brought into or kept in the
Demised Premises which would in any way (i) violate any law or requirement of
public authorities, (ii) cause structural injury to the Building or any part
thereof, (iii) interfere with the normal operation of the heating, air
conditioning, ventilating, plumbing or other mechanical or electrical systems of
the Building or the elevators installed therein, (iv) constitute a public or
private nuisance, or (v) alter the appearance of the exterior of the Building or
of any portion of the interior thereof other than the Demised Premises.
Tenant's signage on its entrance door shall be subject to Landlord's approval.
Section 5.03. Tenant shall not, without the prior written consent of
Landlord (which shall not be unreasonably withheld or delayed), allow a
"Servicing Company" (defined below) to install any telephone, data, information
or other communications equipment in the Demised Premises to service premises
occupied by persons other than Tenant and/or its affiliates. For example, the
Demised Premises may not be used as a so-called "switching" or "relay" station
serving third parties (that is, parties other than Tenant and its affiliates)
without such consent by Landlord. In granting such consent, Landlord may require
that the Servicing Company enter into a license agreement with Landlord
confirming that the Servicing Company shall have no independent rights in the
Demised Premises and that upon termination of this Lease, for whatever reason,
the Servicing Company will have no right to leave its equipment in the Demised
Premises. Landlord may make a reasonable charge to the Servicing Company for
allowing it to install its equipment in the Demised Premises. A "Servicing
Company" shall mean a person, firm, corporation or other entity other than
----------
Tenant whose equipment services not only the Demised Premises, but other
------
premises or parties as well.
ARTICLE 6.
REPAIRS, ALTERATIONS AND LIENS
------------------------------
Section 6.01. Tenant shall take good care of the Demised Premises and the
fixtures and appurtenances and equipment therein and, at its sole cost and
expense, make all repairs thereto as and when needed to preserve the aforesaid
in good working order and condition (other than structural repairs and repairs
to plumbing, wiring and other Building equipment for the general
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supply of water, heat, air-conditioning, gas and electricity which are not
caused by the carelessness, omission, neglect, improper conduct or other cause
of Tenant, its servants, employees, agents, visitors or licenses). Except to
the extent caused by the negligence of Landlord and its agents, all damage or
injury to the Demised Premises and to its fixtures, appurtenances and equipment
or to the Building of which the same form a part, or to its fixtures,
appurtenances and equipment caused by Tenant moving property, or resulting from
any air-conditioning unit or system, any short circuit, flow or leakage of
water, steam, illuminating gas, sewer gas, sewerage or odors, or by frost or by
bursting or leaking of pipes or plumbing works or gas, or from any other cause
of any other kind or nature whatsoever due to carelessness, omission, neglect,
improper conduct or other cause of Tenant, its servants, employees, agents,
visitors or licenses, shall be repaired, restored or replaced promptly by
Tenant, at its sole cost and expense, to the satisfaction of Landlord. If
Tenant fails to commence and diligently prosecute such repairs, restorations or
replacements, within the time period set within Section 17.01, (except in the
event of an emergency in which cease no notice shall be required), same may be
made by Landlord at the expense of Tenant and any actual out-of-pocket costs
incurred by Landlord therefor shall be collectible as additional rent or
otherwise, and shall be paid by Tenant within thirty (30) days after rendition
of a xxxx or statement therefor.
Section 6.02. Landlord shall, at its expense, make all repairs and
replacements, structural and otherwise, necessary in order to keep in good order
and repair the exterior of the Building and the public portions of the Building,
the need for which Landlord shall have knowledge (including the public halls and
stairways, plumbing, wiring and other Building equipment for the general supply
of water, heat, air-conditioning, gas and electricity) except repairs
hereinabove provided to be made by Tenant and repairs, the need for which Tenant
has not reported to Landlord. Except in the event of an emergency, all repairs
to be performed by Landlord which affect the Demised Premises shall be performed
upon not less than three (3) days prior written notice to Tenant, and Landlord
shall use reasonable efforts not to interfere with the conduct of Tenant's
business; provided that the foregoing shall not be deemed to require that
Landlord employ labor on an overtime or premium pay basis.
Section 6.03. All repairs, restorations or replacements by either party
shall be of first-class quality and done in good and workmanlike manner. Tenant
shall, and shall include in all contracts, subcontracts and purchase orders, a
requirement that such contractors, subcontractors or materialmen, as the case
may be, shall, cause all workers at the Demised Premises to work in a
cooperative manner with each other and with Building personnel and in a manner
which will not disrupt access to or use of the common areas of the Building,
cause any labor dispute with other
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workers in the Building, cause inconvenience to the other tenants in the
Building or interfere with the conduct of other tenants' business. Tenant
agrees that should Tenant, its agents and/or contractors, enter upon the Demised
Premises for the purpose of performing any work, the labor employed by Tenant or
anyone performing such work, for or on behalf of Tenant, shall always be
cooperative and compatible with the labor employed by Landlord or any
contractors or subcontractors of Landlord so as to prevent any labor dispute or
walk-out by Landlord's contractors and subcontractors. Should such labor be
uncooperative or incompatible, Landlord may require Tenant to withdraw such
labor from the Demised Premises. In the event Tenant or Tenant's contractor
shall enter upon the Demised Premises or any other part of the Building, Tenant
agrees to indemnify and save Landlord free and harmless, from and against any
and all claims whatsoever arising out of said entry or such work, except to the
extent such claim is due to the negligence of Landlord, its agents or
contractors. Tenant's agents and contractors and their employees shall comply
with the special rules, regulations and requirements of Building management
(which are applicable generally to all tenants of the Building), with respect
to the performance and coordination of said agents, contractors and their
employees so as to avoid intrusion into the operation of the Building and to
avoid disturbing the quiet enjoyment of other tenants.
Section 6.04. Tenant shall not store or place any materials or other
obstructions in the lobby or other public portions of the Building, or on the
sidewalk adjacent to the Building.
Section 6.05. Tenant shall do no work and shall make no alterations,
decorations, installations, additions or improvements in or to the Demised
Premises, including, but not limited to, installation of a water cooler, an air-
conditioning or cooling system unit or part thereof, or other apparatus of like
or other nature without Landlord's prior written consent, which consent shall
not be unreasonably withheld or delayed in the cease of alterations,
decorations, installations, additions or improvements in the Demised Premises
which are non-structural in nature and do not affect the structure, exterior or
common areas of the Building or adversely affect the functioning of the heating,
ventilating or air-conditioning, electrical, mechanical, plumbing or elevator
systems of the Building or other tenants' use thereof, and then only by
contractors or mechanics approved by Landlord ("Approved Contractors"). Such
approval must be obtained prior to any bidding for said work. For purposes
hereof, Landlord agrees that the term "decorations" shall not include the
hanging of paintings, pictures, artwork and bulletin boards in the Demised
Premises which are capable of being removed from the Demised Premises without
damage to the pictures or artwork and without damage, except to a de minimis
extent, to the Demised Premises. Landlord agrees that it shall respond to any
request for its consent to Tenant's proposed alterations,
-16-
decorations, installations, additions or improvements within five (5) Business
Days after receipt of all information and documents relevant thereto and if
Landlord shall fail to so respond within said five (5) Business Days, Landlord
shall be deemed to have consented to Tenant's proposed alterations, decorations,
installations, additions or improvements provided that Tenant's request for
consent contained a legend in bold typeface to the effect that Landlord's
failure to respond within said five (5) Business Days shall be deemed Landlord's
consent. If Landlord shall reject Tenant's proposed alterations, decorations,
installations, additions or improvements, in whole or in part, Landlord shall
state with reasonable specificity the basis for such rejection and shall suggest
changes, which, if incorporated, would make Tenant's proposed alterations,
decorations, installations, additions or improvements acceptable to Landlord.
Landlord covenants that it will maintain a list with a minimum of two (2)
Approved Contractors for each category of work (other than for electric work,
for painting and for carpeting, for which there may be only one (1) Approved
Contractor, for each such category) during the Term. The charges of such
Approved Contractors and the quality of their work shall be reasonably
competitive with other reputable contractors of comparable skill and experience
for similar work in similar buildings in Manhattan. A current list of Approved
Contractors has heretofore been delivered to Tenant, but Tenant understands and
agrees that such list may be changed in Landlord's sole discretion from time to
time, provided that Landlord shall always maintain the minimum number of
Approved Contractors as provided herein. Landlord shall throughout the Term,
deliver to Tenant an updated list of Approved Contractors upon Tenant's request
therefor. In the event Tenant claims that the charges of any such Approved
Contractor are not competitive as aforesaid, Tenant shall send notice to
Landlord asserting such claim, and if Landlord and Tenant cannot resolve such
dispute within fifteen (15) days after Landlord's receipt of Tenant's notice,
then, at Tenant's option such dispute shall be resolved by arbitration in
Manhattan by an arbitrator selected from the panel of retired judges maintained
by Comprehensive Alternative Dispute Resolution Enterprises, Inc. ("CADRE"). If
CADRE shall no longer exist or shall be unwilling or unable to act, such dispute
shall be resolved by another reputable commercial arbitration company which has
expedited arbitration procedures, as Landlord shall select (the "Company"),
provided, however, that Tenant may dispute Landlord's choice of the Company, in
which event the parties shall mutually agree upon the Company, and if the
parties shall be unable to agree upon the Company, the Company shall be
appointed by any judge of a court of competent jurisdiction in the City of New
York. Upon selection of the Company, the parties agree that the balance of this
Section 6.05 shall continue to apply with the substitution of the Company in
lieu of CADRE. If Tenant so desires to submit such dispute to CADRE, Tenant
shall notify Landlord of such desire, and within ten (10) Business Days
thereafter, Tenant shall make such submission and deliver all applicable
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applications and documents to CADRE with a copy of the entire submission being
delivered simultaneously to Landlord. The arbitration shall be conducted
pursuant to the then existing rules, regulations, practices and procedures of
CADRE for expedited arbitration, it being the intent of the parties to conduct
the arbitration in the most expeditious manner permitted by the rules. Any
determination pursuant to this Section shall be final and binding upon the
parties and each party shall pay its respective costs of any proceedings
pursuant to this Section (except that the prevailing party shall have the right
to be reimbursed for its reasonable fees and expenses within twenty (20) days
after submission of a xxxx therefor to the losing party). All such work,
alterations, decorations, installations, additions or improvements shall be done
at Tenant's sole expense and at such times and in such manner as Landlord may
from time to time designate and in full compliance with all governmental bodies
having jurisdiction thereover. Tenant's work, alterations, decorations,
installations, additions or improvements shall be completed free of all liens
and encumbrances and, as a condition to Landlord's consent to the making by
Tenant of alterations, decorations, installations, additions or improvements to
the Demised Premises, Tenant agrees to obtain, and deliver to Landlord, at the
earliest opportunity permitted by applicable law, written and unconditional
waivers of mechanics' liens upon the real property in which the Demised Premises
are located, for all work, labor and services to be performed and materials to
be furnished by them in connection with such work, signed by all contractors,
subcontractors, materialmen and laborers to become involved in such work. As a
condition to Landlord's permission to Tenant to make any alterations,
decorations, installations, additions or improvements to the Demised Premises
prior to the Commencement Date (including any initial installations), Landlord
may require that Tenant agree with Landlord to fixing the Commencement Date of
this Lease.
Landlord shall not be liable for any failure of the air-conditioning and
ventilating equipment in the Demised Premises installed by Landlord caused by
any work, alterations, decorations, installations, additions or improvements by
Tenant, and Tenant shall correct any such condition causing such failure
promptly upon notice from Landlord of the need therefor. If Tenant shall fail
to correct same, Landlord may make such correction and charge Tenant for the
cost thereof. Such sum due Landlord shall be deemed additional rent and shall
be paid by Tenant promptly upon being billed therefor.
Section 6.06. Prior to commencing any work pursuant to the provisions of
Section 6.05, Tenant shall furnish to Landlord:
(i) Copies of all governmental permits and authorizations which may be
required in connection with such work.
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(ii) A certificate evidencing that Tenant (or Tenant's contractors) has
(have) procured workers' compensation insurance covering all persons employed in
connection with the work who might assert claims for death or bodily injury
against Landlord, "Overlandlord" (as hereinafter defined), Tenant or the
Building.
(iii) Such additional personal injury and property damage insurance (over
and above the insurance required to be carried by Tenant pursuant to the
provisions of Article 9) as Landlord may reasonably require because of the
nature of the work to be performed by Tenant.
Section 6.07. All work, alterations, decorations, installations, additions
or improvements upon the Demised Premises made by either party, including all
paneling, decorations, partitions, railings, mezzanine floors, galleries and the
like, affixed to the realty or for which Tenant shall have received a credit or
contribution shall, unless Landlord elects otherwise (which election shall be
made by giving a notice pursuant to the provisions of Article 30 not less than
thirty (30) days prior to the expiration or other termination of this Lease or
any renewal or extension thereof) become the property of Landlord and shall
remain upon, and be surrendered with the Demised Premises as a part thereof at
the end of the Term or renewal or extension term, as the case may be. In the
event that Landlord shall elect otherwise, then such alterations, decorations,
installations, additions or improvements which are atypical of an ordinary
office installation (atypical shall be deemed to include, but not be limited to,
a raised floor, louvered windows, any kitchen facility, any vault and any audio
or video installation), made by Tenant upon the Demised Premises as Landlord
shall select shall be removed by Tenant, and Tenant shall restore the Demised
Premises to its original condition as of the Commencement Date (ordinary wear
and tear and damage by fire or other casualty excepted), at its own cost and
expense, at or prior to the expiration of the Term. Landlord hereby agrees that
no item of Landlord's Work shall be required to be removed by Tenant at the end
of the Term hereof.
Where furnished by or at the expense of Tenant (except where same is a
replacement of an item theretofore furnished and paid for by Landlord or against
which Tenant has received a credit or contribution from Landlord), all movable
property, furniture, furnishings and trade fixtures other than those affixed to
the realty so that they cannot be removed without material damage shall remain
the property of Tenant and shall be removed from the Demised Premises on or
before the Expiration Date. In the event of damage to the Demised Premises or
the Building by reason of such removal, Tenant shall restore the same to good
order and condition (normal wear and tear excepted). If Tenant should desire
to leave any part of such property in the Demised Premises upon the expiration
of the Term, it shall so notify Landlord in writing not less than thirty (30)
days prior to the expiration of
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the Term, specifying the items of property which it desires to so leave. If
within fifteen (15) days after the service of such notice Landlord shall request
Tenant to remove any of the said property, Tenant shall, at its expense, at or
before the expiration of the Term, remove said property and, in case of damage
to the Demised Premises or the Building by reason of such removal, restore the
Demised Premises to good order and condition (normal wear and tear and damage by
fire or other casualty excepted).
Section 6.08. Landlord shall not be responsible for supervision and/or
coordination in respect to Tenant's activities pursuant to this Lease.
Landlord's managing agent shall perform such supervision and coordination and,
with respect to any work, alteration, decoration, addition or improvement
costing more than $15,000, Tenant agrees to pay such managing agent, promptly
upon being billed therefor, a sum equal to six (6%) percent of the cost of such
work for indirect costs, field supervision and coordination in connection
therewith. Tenant agrees to keep records of Tenant's work, alterations,
decorations, additions and improvements costing in excess of $15,000 and of the
cost thereof. Tenant agrees to furnish to Landlord's managing agent copies of
such records certified as correct by Tenant within forty-five (45) days after
Landlord's managing agent's request therefor. Notwithstanding anything
contained herein to the contrary, the supervisory fee described above shall not
apply to any work performed by Tenant in preparation for its initial occupancy
of the Demised Premises.
Section 6.09. Tenant will not do any act or suffer any act to be done
which will in any way encumber the title of Landlord or Tenant in and to the
Demised Premises or the Building or the Land, nor will the interest or estate of
Landlord or Tenant in the Demised Premises or the Building or the Land be in any
way subject to any claim by way of lien or encumbrance, whether by operation of
law or by virtue of any express or implied contract by Tenant.
Section 6.10. Tenant will not suffer or permit any liens to stand against
the Demised Premises, the Building or the Land or any part thereof, by reason of
any work, labor, services or materials done for, or supplied to, or claimed to
have been done for, or supplied to, Tenant, or anyone holding the Demised
Premises or any part thereof through or under Tenant. If any such lien is at
any time filed against the Demised Premises or the Building or the Land, Tenant
will cause the same to be discharged of record within thirty (30) days after the
date that Tenant first has actual knowledge of filing of the same, by either
payment, deposit or bonding (and the failure of Tenant to do so shall be a
material default hereunder entitling Landlord to give a notice to Tenant
pursuant to the provisions of Section 17.01 (1) hereof). In addition to any
other right or remedy of Landlord Landlord may, but will not be obligated to,
procure the
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discharge of such lien either by paying the amount claimed to be due by deposit
in court or bonding, and/or Landlord will be entitled, if Landlord so elects, to
compel the prosecution of an action for the foreclosure of such lien by the
lienor and to pay the amount of the judgment, if any, in favor of the lienor
with interest computed at the Interest Rate, costs and allowances. Any amount
paid or deposited by Landlord for any of the aforesaid purposes, and all legal
and other expenses of Landlord, including, without limitation, attorneys' fees
incurred in defending such action or in procuring the discharge of such lien,
with all necessary disbursements in connection therewith, will become due and
payable on the date of payment or deposit, as additional rent.
Section 6.11. Nothing in this Lease will be deemed to be, or construed in
any way as constituting, the consent or request of Landlord, express or implied
by inference or otherwise, to any person, firm or corporation for the
performance of any labor or the furnishing of any materials for any
construction, rebuilding, alteration or repair of or to the Demised Premises,
the Building or the Land or any part thereof, nor as giving Tenant any right,
power or authority to contract for or permit the rendering of any services or
the furnishing of any materials which might in any way give rise to the right to
file any lien against Landlord's interest in the Demised Premises, the Building
or the Land.
ARTICLE 7.
FLOOR LOAD, NOISE, WINDOW CLEANING
----------------------------------
Section 7.01. Tenant shall not place a load upon any floor of the Demised
Premises which exceeds 120 pounds per square foot which is the load per square
foot which such floor was designed to carry and which is allowed by law.
Section 7.02. Business machines and mechanical equipment belonging to
Tenant which cause noise or vibration that may be transmitted to the structure
of the Building or the Demised Premises to such a degree as to be objectionable
to Landlord shall be placed and maintained by the party owning the machines or
equipment, at such party's expense, in settings of cork, rubber or spring type
vibration eliminators sufficient to eliminate noise or vibration.
Section 7.03. Tenant will not clean, nor require, permit, suffer or allow
any window in the Demised Premises to be cleaned from the outside in violation
of Section 202 of the Labor Law or of the rules of the Board of Standards and
Appeals or of any other board or body having or asserting jurisdiction. Prior
to the Commencement Date, Landlord, at its sole cost and expense, shall (i)
replace any broken glass in the exterior windows of the Demised Premises and
(ii) clean the inside and outside (to the extent practical) of such windows.
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ARTICLE 8.
LAWS, ORDINANCES, REQUIREMENTS OF PUBLIC AUTHORITIES
----------------------------------------------------
Section 8.01. Tenant shall, at its expense, comply with all laws, orders,
ordinances and regulations or any direction made pursuant to any law, ordinance,
rule, regulation or order of any public office or officer which or who shall,
with respect to the particular manner of use of the Demised Premises (as opposed
to mere use and occupancy as contemplated by Article 5) or to any abatement of
nuisance, impose any violation, order or duty upon Landlord or Tenant arising
from Tenant's particular manner of use of the Demised Premises (as opposed to
mere use and occupancy as contemplated by Article 5), or as a result of any
installations made therein (whether or not in compliance with the work article
hereof) by Tenant or at Tenant's request, or required by reason of a breach of
any of Tenant's covenants or agreements hereunder.
Section 8.02. If Tenant should desire to contest the validity of any such
law, ordinance, rule, regulation or order with which Tenant is obligated to
comply, it may, at its expense, carry on such contest and non-compliance by it
during such contest (so long as Tenant proceeds with due diligence) shall not
constitute a breach of this Lease provided that it shall, to the satisfaction of
Landlord, indemnify and hold Landlord harmless from and against all liability
for any loss, damages and expenses (including, without limitation, attorneys'
fees) which might result from or be incurred in connection with such contest or
noncompliance. Notwithstanding the foregoing, non-compliance as aforesaid shall
not commence or continue if it might subject Landlord to any fine or penalty or
to prosecution for a crime, or if it would constitute a default by Landlord
under any mortgage or lease affecting the Building and/or the Land.
Section 8.03. If Tenant receives written notice of any violation of law,
ordinance, rule, regulation or order applicable to the Demised Premises, it
shall give prompt notice thereof to Landlord.
Section 8.04. Except as aforesaid, Landlord shall, at its expense, comply
with or cause to be complied with, all laws, ordinances, rules, regulations and
orders of federal, state, county and municipal authorities and any direction
made pursuant to law of any public officer or officers which shall, with respect
to the public portions of the Building, impose any violation, order or duty upon
Landlord or Tenant and with respect to which Tenant is not obligated by Section
8.01 to comply. Except as aforesaid, Landlord shall further, at its expense,
comply with or cause to be complied with, all laws, ordinances, rules,
regulations and orders of federal, state, county and municipal authorities and
any direction made pursuant to law of any public officer or officers which
affect Tenant's use or enjoyment of, or access to, the Demised Premises and with
respect
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to which Tenant is not obligated by Section 8.01 to comply. Landlord may, at its
expense, contest the validity of any such law, ordinance, rule, order or
regulation.
Section 8.05. Landlord hereby agrees to comply with all present and future
laws, ordinances, rules, regulations and orders which are violated as a result
of any conditions to the Demised Premises which exist immediately prior to the
Commencement Date ("Pre-Existing Conditions"). Landlord further agrees to
indemnify and hold Tenant harmless from and against any loss, costs or expenses
which Tenant may incur arising out of the existence of any such Pre-Existing
Condition which violates any present or future laws, ordinances, rules,
regulations and orders as aforesaid.
ARTICLE 9.
INSURANCE, PROPERTY LOSS, REIMBURSEMENT
---------------------------------------
Section 9.01. Tenant shall not do or permit to be done any act or thing
upon the Demised Premises which will invalidate or be in conflict with the
Certificate of Occupancy or the terms of the New York State standard form of
fire, boiler, sprinkler, water damage or other insurance policies covering the
Building and the fixtures and property therein and Tenant shall, at its own
expense, comply with all rules, orders, regulations or requirements of the New
York Board of Fire Underwriters or any other similar body having jurisdiction
and shall not knowingly do or permit anything to be done in or upon the Demised
Premises in a manner which increases the rate of fire insurance upon the
Building or on any property or equipment located therein over the rate in effect
at the commencement of the Term of this Lease. Landlord agrees to provide Tenant
with a copy of any notice of increase in the rate of fire insurance caused by
Tenant, and Tenant shall have the right to take action to prevent such increase
if any cure period is available to Landlord to remedy the conditions which
caused such increase.
Section 9.02. If, by reason of any action or omission of Tenant, the rate
of fire, boiler, sprinkler, water damage or other insurance (with extended
coverage) on the Building or on the property and equipment of Landlord shall be
higher than it otherwise would be, Tenant shall reimburse Landlord for that part
of the fire, boiler, sprinkler, water damage or other insurance premiums
thereafter paid by Landlord which shall have been charged because of such
failure by Tenant, and Tenant shall make the reimbursement on the first day of
the month following such payment by Landlord or such other tenants. In any
action or proceeding wherein Landlord and Tenant are parties, a schedule or
"make up" of any insurance rate for the Building or Demised Premises issued by
the New York Fire Insurance Exchange, or other body establishing fire insurance
rates for the Building, shall be conclusive evidence of the facts therein stated
and of the several items and charges in the insurance rates then applicable
-23-
to the Building or Demised Premises. Landlord agrees to provide Tenant with a
copy of any notice of increase in the rate of fire insurance caused by Tenant,
and Tenant shall have the right to take action to prevent such increase if any
cure period is available to Landlord to remedy the conditions which caused such
increase.
Section 9.03. Tenant, at Tenant's own cost and expense, shall maintain
insurance protecting and indemnifying Landlord and Tenant (and at Landlord's
request, the landlord under any ground or underlying lease [herein
"Overlandlord"], as well as the holder of any mortgage affecting the Land, the
Building or both) against any and all claims for injury or damage to persons or
property for the loss of life or of property occurring upon, in or about the
Demised Premises and the public portions of the Building used by Tenant, its
employees, agents, contractors, customers and invitees arising out of the
negligent act or omission of any of the foregoing, such insurance to afford
minimum protection during the Term of this Lease of not less than a single
combined limit of $2,000,000 in respect of property damage and bodily injury or
death to any one person or in respect of any one occurrence or accident (which
may be maintained by umbrella coverage). Landlord may from time to time
require that the amount of liability insurance to be maintained by Tenant under
this Article be increased so that Landlord shall be adequately protected giving
due consideration to all relevant circumstances and conditions. Landlord hereby
agrees to maintain throughout the Term the insurance required to be maintained
by Landlord pursuant to the mortgage currently encumbering the Building (or, if
no mortgage shall encumber the Building, commercially reasonable levels of fire
and extended coverage insurance covering the Building and general liability
insurance in amounts and types customarily carried by owners of similar
buildings in the area of the Building.
All such insurance shall be effected under valid and enforceable policies
(which may cover the Demised Premises and other locations), shall be issued by
insurers of recognized responsibility and shall contain a provision whereby the
insurer agrees not to cancel the insurance without ten (10) days' prior written
notice to Landlord.
On or before the Commencement Date of this Lease, Tenant shall furnish
Landlord with a certificate evidencing the aforesaid insurance coverage and
renewal certificates shall be furnished to Landlord at least thirty (30) days
prior to the expiration date of each policy for which a certificate was
theretofore required to be furnished.
Section 9.04. Tenant shall give Landlord immediate notice in case of a
fire or accident in the Demised Premises or the Building, or of defects therein
or in any fixtures or equipment promptly after Tenant becomes aware of the same.
-24-
Section 9.05. Tenant shall indemnify and hold Landlord harmless from and
against all liabilities, suits, claims, demands and actions, and costs and
expenses of any kind or nature, due to or arising out of any injury to person or
property, including death resulting at any time therefrom, occurring in or about
the Demised Premises (unless caused by or due to the negligence or willful
misconduct of Landlord, its agents, employees, contractors or invitees, in which
event Tenant's indemnification herein shall be only to the extent, if any, of
Tenant's negligence or willful misconduct or that of Tenant's agents, employees,
contractors or invitees). To the extent of any valid and collectible insurance
furnished by Tenant for the protection of Landlord, Tenant's obligation to
indemnify and hold Landlord harmless against liability which is covered by such
insurance shall be deemed, to the extent thereof, to be satisfied.
Section 9.06. Landlord and Tenant shall each endeavor to secure an
appropriate clause in, or an endorsement upon, each fire or extended coverage or
rent insurance policy obtained by it and covering the Building, the Demised
Premises or the personal property, fixtures and equipment located therein or
thereon, pursuant to which the respective insurance companies waive subrogation
or permit the insured, prior to any loss, to agree with a third party to waive
any claim it might have against said third party. The parties hereto shall give
prompt notice to the other in the event such clause is or becomes unavailable.
The waiver of subrogation or permission for waiver of any claim shall extend to
the agents of each party and the employees of each party and its respective
agents and, in the case of Tenant, shall also extend to all other persons and
entities occupying or using the Demised Premises. If and to the extent that
such waiver or permission can be obtained only upon payment of an additional
charge, then the party benefiting from the waiver or permission shall pay such
charge upon written demand, or shall be deemed to have agreed that the party
obtaining the insurance coverage in question shall be free of any further
obligations under the provisions hereof relating to such waiver or permission.
Subject to the foregoing provisions of this Section 9.06, each party hereby
releases the other with respect to any claim (including a claim for negligence)
which it might otherwise have against the other party for loss, damages or
destruction with respect to its properly by fire or other casualty (including
rental value or business interest, as the case may be) occurring during the Term
of this Lease.
Section 9.07. Tenant agrees to look solely to Landlord's estate and
interest in the Land and Building, or the lease of the Building, or of the Land
and Building, and the Demised Premises, and the proceeds of any casualty
insurance policy thereon, for the satisfaction of any right or remedy of Tenant
for the collection of a judgment (or other judicial process) requiring the
payment of money by Landlord, in the event of any liability
-25-
by Landlord, and no other property or assets of Landlord shall be subject to
levy, execution, attachment, or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to this Lease, the relationship of
Landlord and Tenant hereunder, or Tenant's use and occupancy of the Demised
Premises, or any other liability of Landlord to Tenant.
ARTICLE 10.
DAMAGE OR DESTRUCTION BY FIRE OR OTHER CAUSE
--------------------------------------------
Section 10.01. If the Building or the Demised Premises shall be partially
or totally damaged or destroyed by fire or other cause, then whether or not the
damage or destruction shall have resulted from the fault or neglect of Tenant,
or its employees, agents or visitors (and if this Lease shall not have been
terminated as in this Article 10 hereinafter provided), Landlord shall to the
extent permitted by available insurance proceeds, repair the damage and restore
and rebuild the Building and/or the Demised Premises (without limiting the
rights of any insurance company, subrogated to Landlord's rights hereunder
pursuant to the terms of any insurance policy as to which Landlord shall have
been unable to obtain a waiver of subrogation in accordance with Section 9.06
hereof to seek recovery from Tenant, and any rights of Landlord under any other
provisions of this Lease or at law or in equity), with reasonable dispatch
after notice to it of the damage or destruction; provided, however, that
Landlord shall not be required to repair or replace any of Tenant's property.
Notwithstanding anything contained herein to the contrary, in no event shall
Tenant be relieved of liability or responsibility for damage or destruction
resulting from the fault or neglect of Tenant if the insurance policies carried
by Landlord on the Building do not contain a waiver of the right of subrogation.
Section 10.02. If the Building or the Demised Premises shall be partially
destroyed by fire or other cause, the rents payable hereunder shall be abated to
the extent that the Demised Premises shall have been rendered untenantable and
for the period from the date of such damage or destruction to the date the
damage shall be repaired or restored. If the Demised Premises or a major part
thereof shall be totally (which shall be deemed to include substantially
completely) untenantable on account of fire or other cause, the rent shall xxxxx
as of the date of the damage or destruction and until Landlord shall repair,
restore and rebuild the Building and the Demised Premises, provided, however,
that should Tenant occupy or reoccupy a portion of the Demised Premises during
the period the Demised Premises are made completely untenantable, rents
allocable to such portion shall be payable by Tenant from the date of such
occupancy.
Section 10.03. If the Building or Demised Premises shall be totally
damaged or destroyed by fire or other cause, or if the
-26-
Building shall be so damaged or destroyed by fire or other cause that Landlord
shall decide not to restore or rebuild it, then in either such case Landlord may
terminate this Lease by giving Tenant notice to such effect within ninety (90)
days after the date of the casualty, provided, however, that in the event of a
total damage or destruction to the Building, Landlord shall have made such
election as to all or substantially all of the tenants occupying the Building.
If the Demised Premises shall be substantially damaged or destroyed during the
final two (2) years of the Term, each of Landlord and Tenant shall have the
option, to be exercised by giving written notice to the other, within thirty
(30) days of the occurrence of such damage, to terminate this Lease and the Term
and estate hereby granted as of the date of such damage or destruction. In case
of any damage or destruction mentioned in this Article 10, Tenant may terminate
this Lease by notice to Landlord, (x) unless, in the reasonable opinion of a
reputable architect or contractor selected by Landlord, and reasonably
satisfactory to Tenant, who shall be experienced with regard to restoration of
comparable buildings following such a casualty (which opinion shall be delivered
to Tenant within forty-five (45) days following the occurrence of such damage),
the damage or destruction can be repaired and restored such that the Building
and the Demised Premises shall be tenantable within nine (9) months following
the occurrence of such damage (subject to extension as set forth immediately
below), or (y) if Landlord has not completed the making of the required repairs
and restored and rebuilt the Building and the Demised Premises within nine (9)
months from the date of such damage or destruction, or within such period after
such date (not exceeding three (3) months) as shall equal the aggregate period
Landlord may have been delayed in doing so by adjustment of insurance, labor
trouble, governmental controls, act of God, or any other cause beyond Landlord's
reasonable control, and such termination shall be effective upon the expiration
of thirty (30) days after the date of such notice. Upon the termination of
this Lease as provided above, Tenant may remove its fixtures, personal property
and inventory from the Demised Premises.
Section 10.04. No damages, compensation or claim shall be payable by
Landlord for inconvenience, loss of business or annoyance arising from any
repair or restoration of any portion of the Demised Premises or of the Building
pursuant to this Article 10. Landlord shall endeavor to effect such repair or
restoration promptly and in such manner as not unreasonably to interfere with
Tenant's business, provided no additional costs, for labor at overtime or
premium rates, or otherwise, are incurred thereby.
Section 10.05. Tenant covenants and agrees to cooperate with Landlord, the
landlord under any ground or underlying lease to which this Lease is subject and
subordinate or any mortgagee of any mortgage to which this Lease is subordinate
in their
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attempts to collect insurance proceeds (including rent insurance proceeds)
payable to any of such parties.
Section 10.06. Landlord will not carry separate insurance of any kind on
Tenant's property and Landlord shall not be obligated to repair any damage
thereto or replace the same.
Section 10.07. In the event of the termination of this Lease pursuant to
any of the provisions of this Article 10, this Lease and the Term and estate
hereby granted shall expire as of the date of such termination with the same
effect as if that were the Expiration Date, and the Fixed Rent and additional
rent payable hereunder shall be apportioned as of such date.
Section 10.08. The provisions of this Article 10 shall be considered an
express agreement governing any case of damage or destruction of the Demised
Premises by fire or other casualty, and Section 227 of the Real Property Law of
the State of New York providing for a contingency in the absence of an express
agreement, and any other law of like import, now or hereafter in force, shall
have no application to the Demised Premises and this Lease.
ARTICLE 11.
ASSIGNMENT, SUBLETTING, MORTGAGING
----------------------------------
Section 11.01. (a) Tenant will not by operation of law or otherwise,
assign, mortgage or otherwise encumber this Lease, nor the estate and Term
hereby granted, nor sublet or permit the Demised Premises or any part thereof to
be used by others, without Landlord's prior written consent in each instance.
The consent by Landlord to any assignment or subletting shall not in any manner
be construed to relieve Tenant from obtaining Landlord's express written consent
to any other or further assignment or subletting.
If Tenant desires to assign or sublet all or any portion of the Demised
Premises, Tenant agrees to use as its exclusive rental agent for such purpose
the then designated leasing agent of the Building and to notify such leasing
agent of its desire to assign this Lease or sublet the Demised Premises. Upon
obtaining a proposed assignee or sublessee, upon terms satisfactory to Tenant,
Tenant shall submit to Landlord in writing (1) the name of the proposed assignee
or subtenant; (2) the terms and conditions of the proposed assignment or
subletting; (3) the nature and character of the business of the proposed
assignee or subtenant and any other information reasonably requested by
Landlord.
Upon receipt of the foregoing submission from Tenant Landlord shall have
the following options to be exercised within fifteen (15) Business Days from the
date of such receipt:
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1. If an assignment shall be proposed or if a proposed subletting shall
be for all or substantially all of the Demised Premises, Landlord shall have the
option to terminate this Lease effective as of the date proposed by Tenant for
such assignment or subletting.
2. If a proposed sublease shall be for less than all or substantially
all of the Demised Premises or if it shall be for less than the balance of the
Term of this Lease, Landlord shall have the option to terminate this Lease as to
the portion of the Demised Premises proposed to be sublet for such portion of
the Term as is included in such proposed sublease, effective as of the effective
date of such proposed sublease. In the event of the exercise of such option
under this subparagraph 2, the rent and all other charges payable hereunder
shall be equitably apportioned, and Tenant shall be responsible for the cost of
constructing any necessary demising walls.
3. (a) Landlord shall have the option to require Tenant to execute an
assignment or sublease to Landlord, or to any party designated by Landlord, upon
the same terms and conditions as contemplated with the proposed assignee or
subtenant, except that (A) Landlord (or Landlord's designee) as assignee or
sublessee shall have an express unlimited right to further assign or sublease to
others and to make any alterations required in connection therewith, and (B) the
rent or consideration payable under such assignment or sublease to Landlord (or
Landlord's designee) shall be the lower of (i) the rental payable by Tenant to
Landlord under this Lease, or (ii) the rental payable by the proposed assignee
or subtenant pursuant to the assignment or sublease originally proposed by
Tenant.
(b) If Landlord shall not exercise any of its foregoing options
within the time set forth above, provided Tenant shall not then be in default
hereunder, Landlord's consent to any such proposed assignment or subletting
shall not be "unreasonably" withheld, as described in paragraph (c) of this
Section 11.01.
If Landlord shall not exercise any of the options described in paragraph
(a) above and Tenant shall thereupon assign this Lease or sublet all or any
portion of the Demised Premises, then and in that event Tenant shall pay to
Landlord as additional rent the difference, if any, between the Fixed Rent plus
additional rent allocable to that part of the Demised Premises affected by such
assignment or sublease pursuant to the provisions of this Lease, and the Fixed
Rent and additional rent payable by the assignee or sublessee to Tenant. Such
additional rent payments shall be made monthly within five (5) days after
receipt of the same by Tenant. Any other cash or other consideration payable to
Tenant in connection with such assignment or sublease or the sale of Tenant's
property in connection therewith shall be similarly paid over to Landlord when
and as received by Tenant.
-29-
If Tenant fails to consummate any proposed assignment or subletting to
which Landlord shall have consented within sixty (60) days after granting such
consent, paragraph (a) shall again apply to said proposed assignment or
subletting.
No option exercised by Landlord pursuant to the above provisions of
paragraph (a), and no assignment or sublease made to Landlord under the above
provisions of paragraph (a), shall be binding upon any purchaser of any ground
or underlying lease who acquires such ground or underlying lease by reason of
the foreclosure of any mortgage to which this Lease is subordinate, nor upon any
assignee of any ground or underlying lease who takes such assignment in lieu of
such foreclosure, it being understood, however, that such purchaser or assignee
may, at its option, elect to enforce such option, assignment or sublease.
(c) In determining reasonableness with respect to its consent to a
proposed assignment or sublease by Tenant, Landlord may take into consideration
all relevant factors surrounding the proposed assignment or sublease, including,
without limitation, the following:
(i) the financial stability and business reputation of the
proposed assignee or subtenant;
(ii) the nature of the business and the proposed use of the
Demised Premises by the proposed assignee or subtenant in relation to the
majority of other tenants in the Building;
(iii) that the proposed assignee or subtenant shall not be a tenant
of other space in the Building or a party which has dealt with Landlord or
Landlord's agent (directly or through a broker) with respect to space in the
Building during the six (6) months immediately preceding Tenant's request for
Landlord's consent, provided Landlord has space in the Building for such
proposed assignee or subtenant;
(iv) restrictions contained in leases of other tenants of the
Building;
(v) the effect that the proposed assignee's or subtenant's
occupancy or use of the Demised Premises would have upon the operation and
maintenance of the Building and Landlord's investment therein;
(vi) that not more than one entity shall occupy the Demised
Premises at any time.
Section 11.02. If this Lease shall be assigned, or if the Demised Premises
or any part thereof be sublet or occupied by any person or persons other than
Tenant, Landlord may after default by Tenant, collect rent from the assignee,
subtenant or occupant and apply the net amount collected to the rent herein
reserved,
-30-
but no such assignment, subletting, occupancy or collection of rent shall be
deemed a waiver of the covenants in this Article, nor shall it be deemed
acceptance of the assignee, subtenant or occupant as a tenant, or a release of
Tenant from the full performance by Tenant of all the terms, conditions and
covenants of this Lease.
Section 11.03. Each assignee or transferee shall assume and be deemed to
have assumed this Lease and shall be and remain liable jointly and severally
with Tenant for the payment of the rent, additional rent and adjustments of
rent, and for the due performance of all the terms, covenants, conditions and
agreements herein contained on Tenant's part to be performed for the Term of
this Lease. Notwithstanding the forgoing, in the event of an assignment of this
Lease to an entity whose business and intended use of the Demised Premises is
acceptable to Landlord and which has a net worth, as determined in accordance
with generally accepted accounting principals, at least equal to the net worth,
similarly determined, of Tenant as of the date of this Lease then, in such
event, Landlord agrees to release Tenant from any and all liability arising
under this Lease from after the effective date of such assignment. No
assignment shall be binding on Landlord unless such assignee or Tenant shall
deliver to Landlord a duplicate original of the instrument of assignment which
contains a covenant of assumption by the assignee of all of the obligations
aforesaid and shall obtain from Landlord the aforesaid written consent prior
thereto.
Section 11.04. For the purposes of this Lease, any sale, transfer or
assignment of any of the stock of a corporate Tenant or any transfer in the
control of Tenant by operation of law or otherwise shall be deemed an
assignment.
Section 11.05. The listing of any name other than that of Tenant, whether
on the doors of the Demised Premises, on the Building directory or otherwise,
shall not operate to vest any right or interest in this Lease or the Demised
Premises. It is expressly understood that any such listing is a privilege
extended by Landlord that is revocable at will by written notice to Tenant.
Section 11.06. Tenant shall reimburse Landlord for any costs incurred by
Landlord to review the requested consent provided in Article 11, including
attorneys' fees.
Section 11.07. If Landlord shall recover or come into possession of the
Demised Premises before the Expiration Date, Landlord shall have the right to
take over any sublease made by Tenant and to succeed to all lights of Tenant
thereunder, Tenant hereby assigning (effective as of the date of Landlord's
succession of Tenant's estate in the Demised Premises) such subleases as
Landlord may elect to take over. Every subletting hereunder shall be subject to
the condition that, from and after
-31-
the termination of this Lease or re-entry by Landlord hereunder or other
succession by Landlord to Tenant's estate in the Demised Premises, the subtenant
under such sublease shall waive any right to surrender possession or to
terminate the sublease and, at Landlord's election, shall be bound to Landlord
for the balance of the term thereof and shall attorn to and recognize Landlord,
as its landlord, under all of the then executory terms of such sublease, except
that Landlord shall not be (a) liable for any previous act, omission or
negligence of Tenant under such sublease, (b) subject to any counterclaim,
defense or offset theretofore accruing to such subtenant against Tenant, (c)
bound by any previous modification or amendment of such sublease made without
Landlord's consent or by any previous prepayment of more than one month's rent
and additional rent unless paid as provided in the sublease, or (d) obligated to
perform any repairs or other work in the subleased space or the Building beyond
Landlord's obligations under this Lease, and each subtenant shall execute and
deliver such instruments as Landlord may reasonably request to evidence and
confirm such attornment.
Section 11.08. Notwithstanding anything to the contrary elsewhere
contained herein (including Section 11.01(a) hereof), provided that Tenant shall
not be in default in any of the terms of this Lease beyond notice and the
expiration of any applicable grace period, Tenant may, without Landlord's
consent but upon not less than ten (10) days' prior written notice to Landlord,
sublet to any corporations or other business entities which control, are
controlled by, or are under common control with Tenant (herein referred to as a
"Related Entity") all or part of the Demised Premises or permit any Related
Entity to occupy the same for any of the purposes permitted to Tenant, subject
however to compliance with Tenant's obligations under this Lease. Such
subletting or occupancy shall not be deemed to vest in any such Related Entity
any right or interest in this Lease nor shall such subletting or occupancy
relieve, release, impair or discharge any of Tenant's obligations hereunder.
Tenant shall deliver to Landlord a copy of any such sublease or occupancy
agreement for all or any portion of the Demised Premises.
Section 11.09. Notwithstanding anything to the contrary elsewhere
contained herein (including Section 11.01(a), which shall not be applicable to
an assignment or transfer pursuant to this Section 11.09), Tenant may, upon
prior written notice to Landlord, assign or transfer its entire interest in this
Lease and the leasehold estate hereby created to a "Successor Corporation" (as
such term is hereinafter defined) of Tenant, provided that Tenant shall not be
in default in any of the terms of this Lease beyond notice and the expiration of
any applicable grace period. A "Successor Corporation", as used in this Section,
shall mean (a) a corporation into which or with which Tenant, its corporate
successors or permitted assigns, is merged or consolidated, in accordance with
applicable statutory provisions for the merger or consolidation of a
corporation,
-32-
provided that by operation of law or by effective provisions contained in the
instruments of merger or consolidation, the liabilities of the corporations
participating in such merger or consolidation are assumed by the corporation
surviving such merger or consolidation, or (b) a corporation, partnership or
other business entity acquiring this Lease and the Term and the estate hereby
granted, the goodwill and all or substantially all of the other property and
assets (other than capital stock of such acquired corporation) of Tenant, its
corporate successors or permitted assigns, and assuming all or substantially all
of the liabilities of Tenant, its corporate successors or permitted assigns, or
(c) any corporate successor to a Successor Corporation becoming such by either
of the methods described in subdivisions (a) and (b) above, provided that, (x)
immediately after giving effect to any such merger or consolidation, or such
acquisition and assumption, as the case may be, the corporation, partnership or
other business entity surviving such merger or created by such consolidation or
acquiring such assets and assuming such liabilities, as the case may be, shall
have a net worth, as determined in accordance with generally accepted accounting
principles, at least equal to the greater of (i) the net worth, similarly
determined, of Tenant, immediately prior to such merger or consolidation or such
acquisition and assumption, as the case may be, or (ii) the net worth, similarly
determined, of Tenant as of the date of this Lease and (y) proof of such net
worth, as evidenced by a statement from a certified public accounting firm
reasonably satisfactory to Landlord shall have been delivered to Landlord at
least ten (10) days prior to the effective date of any such merger or
consolidation, or acquisition and assumption, as the case may be. Upon the
compliance with the foregoing provisions of this Section 11.09, and the delivery
to Landlord of the agreement of the Successor Corporation, in form and substance
satisfactory to Landlord, to assume all the terms of this Lease to be performed
by Tenant, and to be bound thereby, the corporation, partnership or other
business entity so assigning or transferring this Lease shall thereafter be
released and discharged from any obligations thereafter arising under this
Lease.
Section 11.10. In the event that any subtenant approved by Landlord
pursuant to the terms and conditions of this Article 11 (not including any
subtenant for which Landlord's consent is not required pursuant to the terms and
conditions of this Article 11) occupies substantially all of the Demised
Premises for the balance of the Term and provided such subtenant agrees to
attorn to Landlord upon all of the terms and conditions of this Lease (including
the Fixed Rent and additional rent payable under this Lease by Tenant (computed
at the rate per square foot payable by Tenant hereunder)), Landlord shall, upon
the written request of Tenant, deliver to such subtenant a non-
disturbance/attornment agreement in Landlord's then standard form.
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ARTICLE 12.
NO LIABILITY ON LANDLORD
------------------------
Section 12.01. Landlord or its agents shall not be liable for any damage
to property of Tenant or of others entrusted to employees of the Building, nor
for the loss of or damage to any property of Tenant by theft or otherwise.
Landlord or its agents shall not be liable for any injury or damage to persons
or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain or snow, leaks from any part of the Building or from
the pipes, appliances or plumbing works or from the roof, street or sub-surface
or from any other place or by dampness or by any other cause of whatsoever
nature, unless caused by or due to the negligence of Landlord, its agents,
servants or employees; nor shall Landlord or its agents be liable for any such
damage caused by other tenants or persons in the Building or caused by
operations in construction of any private, public or quasi-public work; nor
shall Landlord be liable for any latent defect in the Demised Premises or in the
Building of which they form a part.
If at any time any windows of the Demised Premises are temporarily closed
("temporarily" for the purposes of this Section 12.01 meaning a period not in
excess of thirty (30) consecutive days), darkened or bricked up for any reason
whatsoever (other than by reason of Landlord's own arbitrary, unjustified
acts), Landlord shall not be liable for any damage Tenant may sustain thereby,
and Tenant shall not be entitled to any compensation therefor nor abatement of
rent nor shall the same release Tenant from its obligations hereunder nor
constitute an eviction. In the event that the windows are closed, darkened or
bricked up for more than thirty (30) consecutive days (and same shall not have
been required by law), there shall be, as Tenant's sole remedy, an equitable
abatement for the Fixed Rent and additional rent hereunder until such condition
shall be remedied. Landlord agrees that Landlord will not permanently close,
darken or brick up the windows of the Demised Premises unless required by law.
ARTICLE 13.
MOVING OF HEAVY EQUIPMENT
-------------------------
Section 13.01. Tenant shall not move any safe, heavy equipment or bulky
matter in or out of the Building without Landlord's written consent, which
consent Landlord agrees not to unreasonably withhold or delay. For purposes
hereof, the term "bulky matter" shall not include ordinary personal computers
and related equipment. If the movement of such items requires special handling,
Tenant agrees to employ only persons holding a Master Riggers License to do said
work and all such work shall be done in full compliance with the Administrative
Code of the City of New York and other municipal requirements. All such
movements
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shall be made during hours which will least interfere with the normal operations
of the Building, and all damage caused by such movement shall be promptly
repaired by Tenant at Tenant's expense.
ARTICLE 14.
CONDEMNATION
------------
Section 14.01. In the event that the whole or any material portion of the
Demised Premises shall be lawfully condemned or taken in any manner for any
public or quasipublic use, this Lease and the Term and estate hereby granted
shall forthwith cease and terminate as of the date of vesting of title. In the
event that only an immaterial part of the Demised Premises shall be so condemned
or taken, then, effective as of the date of vesting of title, the rent hereunder
for such part shall be abated. In the event that only a part of the Building
shall be so condemned or taken, then (a) if substantial structural alteration or
reconstruction of the Building shall in the reasonable opinion of Landlord be
necessary or appropriate as a result of such condemnation or taking (whether or
not the Demised Premises be affected), Landlord may, at its option, terminate
this Lease and the Term and estate hereby granted as of the date of such vesting
of title by notifying Tenant in writing of such termination within sixty (60)
days following the date on which Landlord shall have received notice of vesting
of title, or (b) if Landlord does not elect to terminate this Lease, as
aforesaid, this Lease shall be and remain unaffected by such condemnation or
taking, except that the Fixed Rent and additional rent shall be abated to the
extent, if any, hereinbefore provided in this Article 14. In the event that
only a part of the Demised Premises shall be so condemned or taken and this
Lease and the Term and estate hereby granted are not terminated as hereinbefore
provided, Landlord will, at its expense, restore with reasonable diligence the
remaining structural portions of the Demised Premises as nearly as practicable
to the same condition as it was prior to such condemnation or taking.
In the event of termination in any of the cases hereinabove provided in
this Article 14, this Lease and the Term and estate hereby granted shall expire
as of the date of such termination with the same effect as if that were the date
hereinbefore set for the expiration of the Term of this Lease, and the rent
hereunder shall be apportioned as of such date.
In the event of any condemnation or taking hereinabove mentioned of all or
a part of the Building, Landlord shall be entitled to receive the entire award
in the condemnation proceeding, including any award made for the value of the
estate vested by this Lease in Tenant, and Tenant hereby expressly assigns to
Landlord any and all right, title and interest of Tenant now or hereafter
arising in or to any such award or any
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part thereof, and Tenant shall be entitled to receive no part of such award.
ARTICLE 15.
ENTRY, RIGHT TO CHANGE PUBLIC PORTIONS OF THE BUILDING
------------------------------------------------------
Section 15.01. Tenant shall permit Landlord to erect, use and maintain
pipes and conduits in and through the Demised Premises. All such pipes and
conduits shall either be concealed above the suspended ceiling area, or within
the demising walls or installed in the service columns, or shall be installed
along the walls of the Demised Premises and appropriately enclosed, where
feasible. In the event the construction deprives the Tenant of the use of a
material or substantial portion of the usable area of the Demised Premises
(other than on a temporary basis), the Tenant shall be entitled to an pro rata
abatement of rent for the space so permanently taken. Landlord agrees that in
the event more than ten (10%) of the Demised Premises is permanently taken
pursuant to this Article 15 and such taking materially interferes with Tenant's
ability to conduct its business in the balance of the Demised Premises, Tenant
shall, within thirty (30) days after such permanent taking, have the right to
cancel and terminate this Lease upon written notice to Landlord. Landlord or
its agents or designees shall have the right, but only upon not less than ten
(10) days prior notice (except in emergencies, in which event no notice shall be
required) given to Tenant or any authorized employee of Tenant at the Demised
Premises, to enter the Demised Premises at reasonable times during business
hours, for the purpose of making such repairs or alterations as shall be
required or as Landlord shall have the right to make by the provisions of this
Lease. Landlord shall be allowed to take all material into and upon the Demised
Premises that may be required for the repairs and alterations above mentioned
without the same constituting an eviction of Tenant in whole or in part, and the
rent reserved hereunder shall in no wise xxxxx, except as otherwise provided in
this Lease, while said repairs or alterations are being made, by reason of loss
or interruption of the business of Tenant because of the prosecution of any such
work, or otherwise. Landlord agrees to do any work pursuant to this Article in
such a manner so as not to unreasonably interfere with Tenant's business,
provided no additional costs, for labor at overtime or premium rates, or
otherwise, are incurred thereby (unless the health or safety of Tenant's
employees is threatened, in which event Landlord shall employ overtime labor if
doing so will eliminate such threat) and at Tenant's option a representative of
Tenant may be present during the performance of any such work.
Section 15.02. During the twelve (12) months prior to the expiration of
the Term of this Lease, Landlord may exhibit the Demised Premises to prospective
tenants. Landlord shall also have the right to enter the Demised Premises for
the purpose of
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inspecting the same or exhibiting the same to prospective purchasers or lessees
of the entire Building or to prospective mortgagees of the property of which the
Demised Premises forms a part. The holders of any mortgage of Landlord's
interest in the property, or such holders' agents or designees, shall also have
such right of inspection for itself and for any prospective assignees of any
such mortgagees. Landlord agrees, to the extent practicable, to give Tenant
reasonable prior notice of any exhibition or inspection pursuant to this Section
15.02 and to perform any such exhibition or inspection at times convenient to
Tenant and in a manner so as to minimize interference with Tenant's business.
Section 15.03. Landlord shall have the right at any time without thereby
creating an actual or constructive eviction or incurring liability to Tenant
therefor, to change the arrangement or location of such of the following as are
not contained within the Demised Premises or any part thereof: entrances,
passageways, elevators, doors and doorways, corridors, stairs, toilets and other
like public service portions of the Building, provided any such changes do not
require Tenant to perform any work in the Demised Premises and further provided
such changes do not unreasonably interfere with Tenant's access to and use of
the Demised Premises.
ARTICLE 16.
BANKRUPTCY
----------
Section 16.01. (a) Anything elsewhere in this Lease to the contrary
notwithstanding, this Lease may be cancelled by Landlord by the sending of a
written notice to Tenant within a reasonable time after the happening of any one
or more of the following events: (i) Tenant shall (A) have applied for or
consented to the appointment of a receiver, trustee, liquidator, or other
custodian of Tenant or any of its properties or assets, (B) have made a general
assignment for the benefit of creditors, (C) have commenced a voluntary case for
relief as a debtor under the United States Bankruptcy Code or filed a petition
to take advantage of any bankruptcy, reorganization, insolvency, readjustment of
debts, dissolution or liquidation law or statute or an answer admitting the
material allegations of a petition filed against it in any proceeding under any
such law, or (D) be adjudicated a bankrupt or insolvent; or (ii) without the
acquiescence or consent of Tenant an order, judgment or decree shall have been
entered by any court of competent jurisdiction approving as properly filed a
petition seeking relief under the United States Bankruptcy Code or any
bankruptcy, reorganization, insolvency, readjustment of debts, dissolution or
liquidation law or statute with respect to Tenant or appointing a receiver,
trustee, liquidator or other custodian of all or a substantial part of its
properties or assets, and such order, judgment or decree shall have continued
unstayed and in effect for any period
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of not less than sixty (60) days. Neither Tenant, nor any person claiming
through or under Tenant (except for any subtenant who has received a non-
disturbance/attornment agreement from Landlord in accordance with Section 11.10
hereof) or by reason of any statute or order of court, shall thereafter be
entitled to possession of the Demised Premises, but shall forthwith quit and
surrender the Demised Premises. If this Lease shall be assigned in accordance
with its terms, the provisions of this Article shall be applicable only to the
party then owning Tenant's interest in this Lease.
(b) It is stipulated and agreed that in the event of the termination of
this Lease pursuant to paragraph (a) hereof, Landlord shall forthwith,
notwithstanding any other provisions of this Lease to the contrary but subject
to applicable law, be entitled to recover from Tenant as and for liquidated
damages an amount equal to the difference between the rent reserved hereunder
for the unexpired portion of the Term demised and the then fair and reasonable
rental value of the Demised Premises for the same period. In the computation of
such damages the difference between any installment of rent becoming due
hereunder after the date of termination and the fair and reasonable rental value
of the Demised Premises for the period for which such installment was payable
shall be discounted to the date of termination at one (1%) percent above the
then prime commercial lending rate of Marine Midland Bank N.A. If the Demised
Premises or any part thereof be re-let by Landlord for the unexpired Term of
this Lease, or any part thereof, before the presentation of proof of such
liquidated damages to any court, commission or tribunal, the amount of rent
reserved upon such re-letting shall be prima facie evidence as to the fair and
reasonable rental value for the part or the whole of the Demised Premises so re-
let during the term of the re-letting. Nothing herein contained shall limit or
prejudice the Right of Landlord to prove for and obtain as liquidated damages by
reason of such termination, an amount equal to the maximum allowed by any
statute or rule in effect at the time when, and governing the proceedings in
which, such damages are to be approved, whether or not such amount be greater,
equal to, or less than the amount of the difference referred to above.
Notwithstanding the foregoing provisions of this Section 16.01(b), if this Lease
shall be terminated as a result of any of the conditions described in Section
16.01(a), then, in such event, Landlord agrees to use commercially reasonable
efforts to relet the Demised Premises and thus to mitigate Tenant's damages
provided for in this Section 16.01(b).
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ARTICLE 17.
DEFAULTS AND REMEDIES AND WAIVER OF REDEMPTION
----------------------------------------------
Section 17.01. (1) If (A) Tenant defaults in fulfilling any of the
covenants of this Lease, (i) with respect to the covenant for the payment of
Fixed Rent or additional rent, if such default shall continue for five (5) days,
and (ii) with respect to any other covenants, if such default shall continue for
twenty (20) days, in either event, after Landlord shall have given to Tenant a
written notice specifying such default, or (B) the Demised Premises become
vacant or abandoned, or (C) in the case of the happening of a default or
omission (other than in the payment of Fixed Rent, additional rent or other
charges hereunder and other than the failure to cause a lien against the Demised
Premises, the Building or the Land to be discharged of record within the time
period provided elsewhere in this Lease) which cannot with due diligence be
completely cured or remedied within such twenty (20) day period, if Tenant
shall not have diligently commenced curing such default within such twenty (20)
day period, and shall not thereafter with reasonable diligence and in good
faith be proceeding to remedy or cure such default, then, in any such case,
Landlord may give to Tenant a notice of intention to terminate this Lease upon
the expiration of five (5) days from the service of such notice of intention,
and upon the expiration of said five (5) days, this Lease and the Term hereof
shall terminate, and Tenant shall then quit and surrender the Demised Premises
to Landlord, but Tenant shall remain liable as hereinafter provided.
(2) If (A) the notice provided for in (1) hereof shall have been given,
and the Term shall expire as aforesaid; or (B) if Tenant shall make any default
in the payment of Fixed Rent or additional rent herein reserved, or any part of
either, or in making any other payment herein provided within the time period
provided for in subsection (1) above; or (C) if any execution or attachment
shall be issued against Tenant or any of Tenant's property whereupon the Demised
Premises shall be taken or occupied or attempted to be taken or occupied by
someone other than Tenant; or (D) if Tenant shall fail to move into or take
possession of the Demised Premises within ninety (90) days after commencement of
the Term of this Lease, of which facts Landlord shall be the sole judge; then in
any of such events Landlord may, to the extent legally permissible without
further notice, re-enter the Demised Premises either by force or otherwise, and
dispossess Tenant and the legal representatives of Tenant or any other occupants
of the Demised Premises by summary proceedings or otherwise and remove their
effects and hold the Demised Premises as if this Lease had not been made. If
Tenant shall make default hereunder, beyond the expiration of any applicable
notice and cure periods, prior to the date fixed as the commencement of any
renewal or extension of this Lease, Landlord may cancel and terminate such
renewal or extension agreement by written notice, but Tenant shall remain liable
as hereinafter provided.
-39-
Section 17.02. In case of any such default, after the expiration of the
applicable notice and cure periods provided in Section 17.01(1), re-entry,
expiration and/or dispossess by summary proceedings or otherwise, (i) the rent
shall become due thereupon and be paid up to the time of such re-entry,
dispossess and/or expiration together with such costs as Landlord may incur for
legal expenses, reasonable attorneys' fees, brokerage and/or putting the Demised
Premises in good order, or for preparing the same for re-rental; (ii) Landlord
may re-let the Demised Premises or any part or parts thereof, either in the name
of Landlord or otherwise, for a term or terms, which may at Landlord's option be
less than or exceed the period which would otherwise have constituted the
balance of the Term of this Lease and may grant concessions or free rent; and/or
(iii) Tenant or the legal representatives of Tenant shall also pay Landlord as
liquidated damages for the failure of Tenant to observe and perform Tenant's
covenants herein contained, at the election of Landlord, either:
(a) a sum which at the time of such termination of this Lease or at the
time of any such re-entry by Landlord, as the case may be, represents the then
value of the excess, if any, of (1) the aggregate of the installments of Fixed
Rent and the additional rent (if any) which would have been payable hereunder
by Tenant, had this Lease not so terminated, for the period commencing with
such earlier termination of this Lease or the date of any such re-entry, as
the case may be, and ending with the date hereinbefore set for the expiration
of the full term hereby granted pursuant to Articles 1 and 2 hereof, over (2)
the aggregate rental value of the Demised Premises for the same period, said
lump sum to be discounted to the Expiration Date of this Lease at the then
prevailing prime rate of interest; or
(b) sums equal to the aggregate of the installments of Fixed Rent and
additional rent (if any) which would have been payable by Tenant had this Lease
not so terminated, or had Landlord not so re-entered the Demised Premises,
payable upon the due dates therefor specified herein following such termination
or such re-entry and until the date hereinbefore set for the expiration of the
full Term hereby granted; provided, however, that if Landlord shall re-let the
Demised Premises during said period, Landlord shall credit Tenant with the net
rents received by Landlord for such re-letting, such net rents to be determined
by first deducting from the gross rents as and when received by Landlord from
such re-letting the expenses incurred or paid by Landlord terminating this Lease
or of re-entering the Demised Premises and of securing possession thereof,
including, without limitation, attorneys' fees and costs of removal and storage
of Tenant's property, as well as the expenses of re-letting, including
repairing, restoring, altering, decorating and preparing the Demised Premises
for new tenants, brokers' commissions, advertising costs, reasonable attorneys'
fees, and all other similar or dissimilar expenses chargeable against the
Demised Premises and the rental therefrom in connection with such
-40-
re-letting, it being understood that any such re-letting may be for a period
equal to or shorter or longer than the remaining Term of this Lease; provided,
further, that (1) in no event shall Tenant be entitled to receive any excess of
such net rents over the sums payable by Tenant to Landlord hereunder, (2) in no
event shall Tenant be entitled in any suit for the collection of damages
pursuant to this paragraph (b) to a credit in respect of any net rents from a
re-letting except to the extent that such net rents are actually received by
Landlord prior to the commencement of such suit, and (3) if the Demised Premises
or any part thereof should be re-let in combination with other space, then
proper apportionment on a square foot area basis shall be made of the rent
received from such re-letting and of the expenses of re-letting.
For the purpose of paragraph (a) of this Section 17.02, the amount of
additional rent which would have been payable by Tenant under Article 3 hereof
for each year, as therein provided, ending after such termination of this Lease
or such re-entry, shall be deemed to be an amount equal to the amount of such
additional rent payable by Tenant for the calendar year and Tax Year ending
immediately preceding such termination of this Lease or such re-entry. Suit or
suits for the recovery of such damages, or any installments thereof, may be
brought by Landlord from time to time at its election, and nothing contained
herein shall be deemed to require Landlord to postpone suit until the date when
the Term of this Lease would have expired if it had not been terminated under
the provisions of Articles 16 or 17 hereof, or under any provision of law, or
had Landlord not re-entered the Demised Premises.
Landlord, at Landlord's option, may make such alterations, repairs,
replacements and/or decorations in the Demised Premises as Landlord in
Landlord's sole judgment considers advisable and necessary for the purpose of
re-letting the Demised Premises; and the making of such alterations and/or
decorations shall not operate or be construed to release Tenant from any
liability hereunder as aforesaid. Landlord shall in no event be liable in any
way whatsoever for failure to re-let the Demised Premises, or in the event that
the Demised Premises are re-let, for failure to collect the rent thereof under
such reletting. In the event of a breach or threatened breach by Tenant of any
of the covenants or provisions hereof, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity as
if re-entry, summary proceedings and other remedies were not herein provided
for. Mention in this Lease of any particular remedy shall not preclude
Landlord from any other remedy, in law or in equity. Tenant hereby expressly
waives any and all rights of redemption granted by or under any present or
future laws in the event of Tenant being evicted or dispossessed for any cause,
or in the event of Landlord obtaining possession of the Demised Premises, by
reason of the violation by Tenant of any of the covenants and conditions of this
Lease, or otherwise.
-41-
ARTICLE 18.
LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS
------------------------------------------------
Section 18.01. If Tenant shall default in the observance or performance of
any term or covenant on its part to be observed or performed under or by virtue
of any of the terms or provisions in any Article of this Lease and such default
shall continue beyond any applicable notice and cure period (provided, however,
in the case of an emergency neither notice nor the expiration of any cure
periods shall be necessary), Landlord, without being under any obligation to do
so and without thereby waiving such default, may remedy such default for the
account and at the expense of Tenant. If Landlord makes any expenditures or
incurs any obligations for the payment of money in connection therewith,
including, but not limited to, attorneys' fees in instituting, prosecuting or
defending any action or proceedings, such sums paid or obligations incurred with
interest computed at the Interest Rate and costs shall be deemed to be
additional rent hereunder and shall be paid to it by Tenant on demand.
ARTICLE 19.
COVENANT OF QUIET ENJOYMENT
---------------------------
Section 19.01. Landlord covenants that upon Tenant paying the rent and
additional rents and observing and performing all the terms, covenants and
provisions of this Lease on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the Demised Premises, subject nevertheless to
the terms and conditions of this Lease.
ARTICLE 20.
EXCAVATION
----------
Section 20.01. In the event that an excavation should be made for building
or other purposes upon land adjacent to the Building, or should be authorized to
be made, Tenant shall, if necessary, afford to the person or persons causing or
authorized to cause such excavation, license to enter upon the Demised Premises
for the purpose of doing such work as shall reasonably be necessary to protect
or preserve the wall or walls of the Building, or the Building, from injury or
damage and to support them by proper foundations, pinning and/or underpinning.
ARTICLE 21.
SERVICES AND EQUIPMENT
----------------------
Section 21.01. So long as Tenant is not in default under any of the
covenants of this Lease, Landlord shall, at its cost and expense:
-42-
(a) Provide necessary elevator facilities on Business Days from 8:00 A.M.
to 6:00 P.M. and shall have sufficient elevators available at all other times.
At Landlord's option, the elevators shall be operated by automatic control or by
manual control, or by a combination of both of such methods. Tenant shall have
access to the Demised Premises twenty-four (24) hours a day, seven (7) days per
week.
(b) Maintain and keep in good order and repair the heating system
installed by Landlord. The aforesaid system will be operated by Landlord when
seasonably required on Business Days, and shall be effective from 8:00 A.M. to
6:00 P.M. Landlord shall have no responsibility or liability for the ventilating
conditions and/or temperature of the Demised Premises during the hours or days
Landlord is not required to furnish heat pursuant to this paragraph. Any use or
occupancy of the Demised Premises during the hours or days Landlord is not so
required to furnish heat to the Demised Premises shall be at the sole risk,
responsibility and hazard of Tenant. If the Demised Premises shall be
uninhabitable during such times as Landlord is not required to furnish heat to
the Demised Premises pursuant to this paragraph, such condition shall not
constitute nor be deemed to be a breach or a violation of this Lease or of any
provision thereof, nor shall it be deemed an eviction nor shall Tenant claim
or be entitled to claim any abatement of rent nor make any claim for any damages
or compensation by reason of such condition of the Demised Premises. It is
Landlord's recommendation that Tenant cause all of the windows in the Demised
Premises to be kept closed to facilitate proper functioning of the heating
system. If Tenant shall elect not to do so, any improper functioning of the
heating system resulting therefrom shall be the sole responsibility of Tenant
to cure (at Tenant's sole cost and expense). Tenant shall keep entirely
unobstructed all of the vents, intakes, outlets and grilles, at all times and
shall comply with and observe all reasonable regulations and requirements
prescribed by Landlord for the proper functioning of the heating system.
(c) Air-conditioning service ("A/C Service") shall be furnished to the
Demised Premises by way of an existing air-cooled package type air-conditioning
unit (the "A/C Unit"). Tenant shall, at Tenant's expense, maintain and repair
and replace (as necessary) the A/C Unit, including, without limitation, the
periodic cleaning of filters, replacement of fuses and bets, the calibration of
thermostats and all start-up and shutdown maintenance of the A/C Unit. Landlord
hereby agrees to "balance" the A/C Service in the Demised Premises as part of
Landlord's Work, however, it is understood that Landlord shall have no further
obligation to "balance" the A/C Service after the Commencement Date. Such
maintenance obligations shall be performed throughout the Term by a reputable
air-conditioning maintenance company engaged by Tenant at Tenant's expense (and
first approved by Landlord). Tenant shall pay on demand all
-43-
expenses incurred in connection with the maintenance and repair of the A/C Unit.
In the event of the total breakdown of the A/C Unit In such a manner that the
same cannot reasonably be repaired, Landlord shall replace the A/C Unit at its
own cost and expense. All electricity used in connection with the operation of
the A/C Unit shall be supplied by Landlord upon and subject to all of the terms
and conditions contained in Article 4 hereof. The existing A/C Unit, and any
replacements thereof or additional units installed by Tenant during the Term,
shall be and remain at all times the property of Landlord, and Tenant shall
surrender the A/C Unit and all such repairs and replacements to Landlord in good
working order and condition on the Expiration Date. If any permit or license
shall be required for the operation of any A/C Unit serving the Demised
Premises, Landlord shall have the option of obtaining the same on Tenant's
behalf and at Tenant's expense, or requiring Tenant, at Tenant's expense, to
obtain and maintain any such permit or license. It is Landlord's recommendation
that Tenant cause all of the windows in the Demised Premises to be kept closed
to facilitate proper functioning of the A/C Unit. If Tenant shall elect not to
do so, any improper functioning of the A/C Unit resulting therefrom shall be the
sole responsibility of Tenant to cure (at Tenant's sole cost and expense).
Tenant shall keep entirely unobstructed all of the vents, intakes, outlets and
grilles, at all times and shall comply with and observe all reasonable
regulations and requirements prescribed by Landlord for the proper functioning
of the A/C Unit.
(d) Furnish hot and cold water for lavatory, drinking and office cleaning
purposes. If Tenant requires, uses or consumes water for any other purpose,
Tenant agrees to Landlord installing a meter or meters or other means to measure
Tenant's water consumption, and Tenant further agrees to reimburse Landlord for
the cost of the mater or meters and the installation thereof, and to pay for the
maintenance of said meter equipment and/or to pay Landlord's cost of other means
of measuring such water consumption by Tenant. Tenant shall reimburse Landlord
the cost of all water consumed, as measured by said meter or meters or as
otherwise measured, including sewer rents.
Section 21.02. A. Landlord reserves the right to interrupt, curtail or
suspend the services required to be furnished by Landlord under this Article 21
when the necessity therefor arises by reason of accident, emergency, mechanical
breakdown, or when required by any law, order or regulation of any federal,
state, county or municipal authority, or for any other cause beyond the
reasonable control of Landlord. Landlord shall use due diligence to complete
all required repairs or other necessary work as quickly as possible so that
Tenant's inconvenience resulting therefrom may be for as short a period of time
as circumstances will permit. No diminution or abatement of rent or other
compensation shall or will be claimed by Tenant as a result therefrom, nor shall
this Lease or any of the
-44-
obligations of Tenant be affected or reduced by reason of such interruption,
curtailment or suspension.
B. Notwithstanding the foregoing, in the event that as a result of such
interruption, curtailment or suspension of services not necessitated by
Tenant's acts and not occurring as a result of a requirement of law or a
situation beyond Landlord's reasonable control, Tenant shall be unable to
conduct and shall actually discontinue conducting its normal business operations
in the Demised Premises for a period of ten (10) consecutive Business Days or
longer and shall notify Landlord of such discontinuance at the inception of such
period (the "Inception Notice"), then Tenant shall be entitled to an abatement
of the Fixed Rent and additional rent payable with respect to the Demised
Premises for the period beginning on the day after the Demised Premises were so
rendered unusable for the conduct of Tenant's normal business operations (and
such Inception Notice was given) and ending on the earlier of the date on which
(a) Tenant resumes occupancy of the Demised Premises for the conduct of its
business or (b) the Demised Premises are rendered usable for the conduct of
Tenant's business operations (regardless of any delay by Tenant in thereafter
resuming such business operations).
Section 21.03. Landlord will not be required to furnish any other
services, except as otherwise provided in this Lease.
Section 21.04. (a) Tenant, at its sole cost and expense, shall cause the
Demised Premises to be exterminated on a monthly basis to the satisfaction of
Landlord and shall for such purposes employ exterminators designated by
Landlord, which exterminators charges shall be reasonably comparable to the
charges of other exterminators of similar skill, quality and experience for
similar services in similar buildings in Manhattan.
(b) If Tenant shall have facilities on the Demised Premises for
cooking, drinking, eating, washing and/or storage of food, or similar items,
Tenant shall, on a weekly basis, cause the portion of the Demised Premises on
which such facilities are located to be exterminated to the satisfaction of
Landlord by exterminators designated by Landlord. The foregoing shall not,
however, constitute any approval or consent to the use of the Demised Premises
for such purposes.
(c) If Tenant fails to comply with the provisions of this Section,
Landlord, in addition to any other remedies available to it under this Lease or
pursuant to law, may perform such service, and the cost therefor shall be paid
by Tenant on demand as additional rent hereunder.
Section 21.05. Tenant shall clean the Demised Premises and arrange for the
removal of all rubbish and refuse therefrom in accordance with the standards of
the Building (the "Building
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Standard"). Tenant shall employ for such purposes only the maintenance and
trash removal contractors designated by Landlord for use in the Building (such
contractors' charges to be reasonably comparable to the charges of other
contractors of similar skill, quality and experience for similar services in
similar buildings in Manhattan). All such charges shall be paid promptly by
Tenant directly to such contractors.
Section 21.06. It is expressly agreed that only Landlord or any one or
more persons, firms or corporations authorized in writing by Landlord will be
permitted to sell, deliver or furnish any food or beverages, either personally
or through the use of vending machines, for consumption within the Demised
Premises or elsewhere in the Building. Landlord expressly reserves the light to
act as or to designate at any time, or from time to time, an exclusive supplier
or suppliers of such food and beverages; and Landlord further expressly reserves
the right to exclude from the Building any person, firm or corporation
attempting to deliver or purvey any such food or beverages but not so designated
by Landlord. It is understood, however, that Tenant or regular office employees
of Tenant who are not employed by any supplier of such food or beverages or by
any person, firm or corporation engaged in the business of purveying such food
or beverages, may personally bring food or beverages into the Building for
consumption within the Demised Premises by employees and invitees of Tenant, but
not for resale to or for consumption by any other tenant. Landlord may fix in
its absolute discretion, at any time and from time to time, the hours during
which, the regulations under which, foods and beverages may be brought into the
Building by regular employees of Tenant. Notwithstanding the foregoing, it is
understood that Tenant or regular office employees of Tenant who are not
employed by any supplier of such food or beverages or by any person, firm or
corporation engaged in the business of purveying such food or beverages, may
personally bring food or beverages into the Building for consumption within the
Demised Premises by employees of Tenant, but not for resale to or for
consumption by any other tenant. It is further understood that Tenant may order
food and beverages for delivery to Tenant in the Demised Premises for
consumption by Tenant's employees and invitees from contractors, restaurants and
caterers selected by Tenant, without obtaining Landlord's prior consent,
provided, however, that if Landlord determines that the delivery by any such
contractor, restaurant or caterer poses a security risk to the Building
personnel or to other tenants in the Building or otherwise causes a nuisance or
disruption in the Building, Landlord may exclude same from the Building.
ARTICLE 22.
DEFINITION OF LANDLORD
----------------------
Section 22.01. The term "Landlord" wherever used in this Lease shall be
limited to mean and include only the owner or
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owners at the time in question of the Land and the Building or the Building or
the tenant under a ground or underlying lease affecting the Land and the
Building or the Building, or both, to whom this Lease may be assigned, or a
mortgagee in possession, so that in the event of any sale, assignment or
transfer of the Land and the Building or the Building, or of such ground or
underlying lease, such owner, tenant under a ground lease or mortgagee in
possession shall thereupon be released and discharged from all covenants,
conditions and agreements of Landlord thereafter accruing hereunder; but such
covenants, conditions and agreements shall be binding upon each new owner,
tenant under a ground or underlying lease, or mortgagee in possession for the
time being of the Land and the Building, until sold, assigned or transferred.
ARTICLE 23.
INVALIDITY OF ANY PROVISION
---------------------------
Section 23.01. If any term, covenant, condition or provision of this Lease
or the application thereof to any circumstance or to any person, firm or
corporation shall be invalid or unenforceable to any extent, the remaining
terms, covenants, conditions and provisions of this Lease, or the application
thereof to any circumstances or to any person, firm or corporation other than
those as to which any term, covenant, condition or provision is held invalid or
unenforceable, shall not be affected thereby and each remaining term, covenant,
condition and provision of this Lease shall be valid and shall be enforceable to
the fullest extent permitted by law.
ARTICLE 24.
BROKER
------
Section 24.01. The parties hereto agree that Xxxxx Xxxx and
SageGroupAssociates Inc. (collectively, the "Brokers") were the only brokers who
negotiated and brought about this transaction, and Landlord agrees to pay the
Brokers a commission therefor as per separate agreements. Tenant represents and
warrants that it has not dealt with any broker other than the Brokers with
respect to the Demised Premises, and Tenant agrees to indemnify and save
Landlord harmless from any claims made by other brokers claiming to have dealt
with Tenant. Landlord represents that it has not dealt with any broker other
than the Brokers, and Landlord agrees to indemnify and save Tenant harmless from
any claims made by other brokers claiming to have dealt with Landlord.
ARTICLE 25.
SUBORDINATION
-------------
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Section 25.01. This Lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the Building of which the Demised Premises forms a part, and to all
renewals, modifications, consolidations, replacements and extensions thereof.
This clause shall be self-operative, and no further instrument of subordination
shall be required by any mortgagee. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Landlord may request. Tenant
hereby constitutes and appoints Landlord the Tenant's attorney-in-fact to
execute any such certificate or certificates for and on behalf of Tenant.
Section 25.02. At the option of Landlord or any successor landlord or the
holder of any mortgage affecting the Demised Premises, Tenant agrees that
neither the cancellation nor termination of any ground or underlying lease to
which this Lease is now or may hereafter become subject or subordinate, nor any
foreclosure of a mortgage affecting said premises, nor the institution of any
suit, action, summary or other proceeding against Landlord herein or any
successor landlord, or any foreclosure proceeding brought by the holder of any
such mortgage to recover possession of such property, shall by operation of law
or otherwise result in cancellation or termination of this Lease or the
obligations of Tenant hereunder, and upon the request of any such landlord,
successor landlord, or the holder of such mortgage, Tenant covenants and agrees
to attorn to Landlord or to any successor to Landlord's interest in the Demised
Premises, or to such holder of such mortgage or to the purchaser of the
mortgaged premises in foreclosure.
Section 25.03. In the event of any act or omission by Landlord which would
give Tenant the right to terminate this Lease or to claim a partial or total
eviction, pursuant to the terms of this Lease, if any, Tenant will not exercise
any such right until:
(i) it has given written notice of such act or omission to the following
(whose names and addresses shall previously have been furnished to Tenant) by
delivering such notice of such act or omission addressed to the last address so
furnished:
(a) the holder of any first mortgage, and
(b) the landlord under any ground or underlying lease to which this
Lease is subject and subordinate; and
(ii) a reasonable period for remedying such act or omission shall have
elapsed following such giving of notice during which such parties, or any of the
parties, with reasonable diligence, following the giving of such notice, has not
commenced and continued to remedy such act or omission or to cause the same to
be remedied.
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Section 25.04. If, in connection with obtaining financing, a banking,
insurance or other recognized institutional lender shall request reasonable
modifications in this Lease as a condition to such financing, Tenant will not
unreasonably withhold, delay or defer its consent thereto, provided that such
modifications do not, in Tenant's good faith opinion, increase the obligations
of Tenant hereunder or materially or adversely affect the leasehold interest
hereby created or Tenant's use and enjoyment of the Demised Premises or reduce
Landlord's obligations under the Lease.
Section 25.05. Landlord agrees to use its best efforts to obtain from its
current and any future mortgagee for the benefit of Tenant a Subordination, Non-
disturbance and Attornment Agreement in such mortgagee's standard form, provided
that such "best efforts" shall not require Landlord to expend any sum of money
(other than its legal expenses and processing expenses (if any) charged by the
mortgagee for processing said Subordination, Non-disturbance and Attornment
Agreement) and further provided that Landlord shall have no liability
whatsoever, and the obligations of the parties hereto shall not be affected in
any manner whatsoever, if any such mortgagee shall fail to deliver such
agreement.
ARTICLE 26.
ESTOPPEL CERTIFICATE
--------------------
Section 26.01. Tenant agrees, at any time, and from time to time, upon not
less than ten (10) days prior notice from Landlord, to execute, acknowledge and
deliver to Landlord a statement in writing addressed to Landlord certifying that
this Lease is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), stating the dates to which the Fixed Rent, additional rental
and other charges have been paid, and stating whether or not to the best
knowledge of the signer of such certificate, there exists any default in the
performance of any covenant, agreement, term, provision or condition contained
in this Lease, and any claim or offset in favor of Tenant, and, if any,
specifying each such default, claim or offset in favor of Tenant, and, if any,
specifying each such default, claim or offset of which signer may have
knowledge, it being intended that any such statement delivered pursuant hereto
may be relied upon by Landlord and by any purchaser or prospective purchaser of
the Building and/or the Land and by any mortgagee or prospective mortgagee of
any mortgage affecting the Building and/or the Land, and by any landlord under a
ground or underlying lease affecting the Land or the Building.
Section 26.02. Landlord agrees, at any time, and from time to time, upon
not less than ten (10) days prior notice from Tenant, to execute, acknowledge
and deliver to Tenant a statement
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in writing addressed to Tenant certifying that this Lease is unmodified and in
full force and effect (or, if there have been modifications, that the same is in
full force and effect as modified and stating the modifications), stating the
dates to which the Fixed Rent, additional rent and other charges have been paid,
and stating whether or not, to the best knowledge of the signer of such
certificate for and on behalf of Landlord, there exists any default in the
performance of any covenant, agreement, term, provision or condition contained
in this Lease and, if any, specifying each such default of which such signer may
have knowledge.
ARTICLE 27.
LEGAL PROCEEDINGS, WAIVER OF JURY TRIAL
---------------------------------------
Section 27.01. Landlord and Tenant hereby waive, to the extent such waiver
is not prohibited by law, the right to a jury trial in any action, summary
proceeding or legal proceeding between or among the parties hereto or their
successors arising out of this Lease or Tenant's occupancy of the Demised
Premises or Tenant's right to occupy the Demised Premises.
Section 27.02. Tenant hereby waives the right to interpose a counterclaim
(other than a mandatory counterclaim) in any summary proceeding instituted by
Landlord against Tenant or in any action instituted by Landlord for unpaid rent
or additional rent under this Lease.
Section 27.03. A. Subject to the provisions of Section 27.03B, in the
event Tenant claims or asserts that Landlord has violated or failed to perform a
covenant of Landlord not to unreasonably withhold or delay Landlord's consent or
approval, or in any case where Landlord's reasonableness in exercising its
judgment is in issue, Tenant's sole remedy shall be an action for specific
performance, declaratory judgment or injunction, and in no event shall Tenant be
entitled to any money damages for a breach of such covenant, and in no event
shall Tenant claim or assert any claims in any money damages in any action or by
way of set-off, defense or counterclaim, and Tenant hereby specifically waives
the right to any money damages or other remedies.
B. In the event that Tenant shall request Landlord's consent
to an assignment of this Lease or a proposed subletting or occupancy of all or
any portion of the Demised Premises or to any proposed alteration, decoration,
installation, addition or improvement ("Tenant Improvement") to the Demised
Premises and Tenant believes that Landlord has unreasonably withheld or delayed
the same, such dispute, but no other matter whatsoever (except for any other
matter under this Lease for which arbitration is provided as the method of
dispute resolution, in which event such matter shall be resolved in a separate
arbitration proceeding), shall be resolved by
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arbitration in Manhattan by an arbitrator selected from the panel of retired
judges maintained by Comprehensive Alternative Dispute Resolution Enterprises,
Inc. ("CADRE"). If CADRE shall no longer exist or shall be unwilling or unable
to act, such dispute shall be resolved by another reputable commercial
arbitration company which has expedited arbitration procedures which meet the
time frame set forth herein, as Landlord shall select (the "Company"), provided,
however, that Tenant may dispute Landlord's choice of the Company, in which
event the parties shall mutually agree upon the Company, and if the parties
shall be unable to agree upon the Company, the Company shall be appointed by any
judge of a court of competent jurisdiction in the City of New York. Upon
selection of the Company the parties agree that the balance of this Section
27.03B shall continue to apply with the substitution of the Company in lieu of
CADRE. If Tenant so desires to submit such dispute to CADRE, Tenant shall
notify Landlord of such desire, and within ten (10) Business Days thereafter,
Tenant shall make such submission and deliver all applicable applications and
documents to CADRE with a copy of the entire submission being delivered
simultaneously to Landlord. The arbitration shall be conducted pursuant to the
then existing rules, regulations, practices and procedures of CADRE and provided
such rules so permit, CADRE shall select a single arbitrator (who shall be
impartial and shall have experience regarding the matter to be determined)
within five (5) Business Days after Tenant's submission or application, the
arbitration shall commence two (2) Business Days thereafter and shall be
conducted for at least seven (7) hours on each Business Day thereafter until
completion, each party having no more than a total of fifteen (15) hours to
present its case and to cross-examine or interrogate persons supplying
information or documentation on behalf of the other party. If such rules do not
permit such expedited procedure, then such rules of CADRE shall govern, it being
the intent of the parties to conduct the arbitration in the most expeditious
manner permitted by the rules. The arbitrator shall make a determination within
five (5) Business Days after conclusion of the arbitration; such determination
to be strictly limited to whether or not Landlord's failure to consent to any
proposed assignment of this Lease or proposed sublease or occupancy of all or
any portion of the Demised Premises or proposed Tenant Improvement, was
reasonable, and, if such failure shall be found to be unreasonable, whether the
same was in bad faith. No monetary award shall be awarded as a result of any
proceeding pursuant to this Section, Landlord's sole responsibility in the event
of a negative determination being the requirement of granting its consent to
Tenant's proposed assignment, sublease or occupancy or proposed Tenant
Improvement, as the case may be, except that (i) the prevailing party shall have
the right to be reimbursed for its reasonable fees and expenses within twenty
(20) days after submission of a xxxx therefor to the losing party, and (ii) in
the event that pursuant to this arbitration procedure Landlord shall be found to
have acted in bad faith in withholding its consent to Tenant's
-51-
proposed assignment, sublease or occupancy, but, due solely to the delay caused
by such procedure, Tenant's proposed assignee or sublessee or occupant shall not
be obligated to assume this Lease or sublease or occupy the proposed portion of
the Demised Premises, Landlord shall, at Tenant's option be required to step
into the position of such assignee or sublessee or occupant upon the terms and
conditions contained in the submission required to be made to Landlord
(including, if the same would have been the obligation of the subtenant or
occupant, constructing, at Landlord's own cost and expense any required demising
walls). Any determination pursuant to this Section shall be final and binding
upon the parties and each party shall pay its respective costs of any
proceedings pursuant to this Section (except that the prevailing party shall
have the right to be reimbursed for its reasonable fees and expenses within
twenty (20) days after submission of a xxxx therefor to the losing party).
ARTICLE 28.
SURRENDER OF PREMISES/HOLDOVER
------------------------------
Section 28.01. Upon the expiration or other termination of the Term of
this Lease, Tenant shall quit and surrender the Demised Premises in good order
and condition, ordinary wear and tear and damage by fire or other casualty, the
elements and any cause beyond Tenant's reasonable control excepted, and shall
remove all its property therefrom, except as otherwise provided in this Lease.
Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of the Term of this Lease.
Section 28.02. If at any time during the last month of the Term of this
Lease, Tenant shall have removed all or substantially all of Tenant's property
from the Demised Premises, Landlord may, and Tenant irrevocably grants to
Landlord a license to, immediately enter and alter, renovate and redecorate the
Demised Premises, without diminution or abatement of rent, or incurring
liability to Tenant for any compensation, and such acts shall have no effect on
this Lease.
Section 28.03. Tenant agrees it shall indemnify and save Landlord harmless
against all costs, claims, loss or liability resulting from delay by Tenant in
surrendering the Demised Premises upon expiration or sooner termination of the
term of this Lease, including, without limitation, any claims made by any
succeeding tenant founded on such delay unless such delay was caused by
Landlord. The parties recognize and agree that the damage to Landlord resulting
from any failure by Tenant timely to surrender the Demised Premises will be
substantial, will exceed the amount of monthly rent theretofore payable
hereunder, and will be impossible of accurate measurement. Tenant therefore
agrees that if possession of the Demised Premises is not surrendered to Landlord
within two (2) days after the date of the
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expiration or sooner termination of the Term of this Lease, then Tenant will pay
Landlord as liquidated damages for each month and for each portion of any month
during which Tenant holds over in the Demised Premises after expiration or
sooner termination of the Term of this Lease, a sum equal to two (2) times the
average rent and additional rent which was payable per month under this Lease
during the six (6) month period preceding such expiration or termination of the
Term of this Lease. Notwithstanding, the foregoing, provided that during the
six (6) month period immediately preceding the Expiration Date, Tenant has
entered into a new lease or has been negotiating in good faith the terms of a
new lease, in either case to commence on or prior to the Expiration Date, then
Tenant shall pay Landlord as liquidated damages for each month and for each
portion of any month, not to exceed six (6) months, during which Tenant holds
over in the Demised Premises after expiration of the Term of this Lease, only a
sum equal to the average rent and additional rent which was payable per month
under this Lease during the six (6) month period preceding such expiration of
the Term of this Lease. After six (6) months beyond the Expiration Date, the
provisions of the immediately preceding sentence shall not apply. The aforesaid
obligations shall survive the expiration of sooner termination of the Term of
this Lease.
ARTICLE 29.
RULES AND REGULATIONS
---------------------
Section 29.01. Tenant, its servants, employees, agents, visitors, and
licensees shall observe faithfully and comply strictly with the rules and
regulations set forth in Schedule C attached hereto and made a part hereof.
Landlord shall have the right from time to time during the Term of this Lease to
make reasonable changes in and additions to the rules thus set forth. Landlord
agrees not to enforce the rules and regulations against Tenant in a
discriminatory manner unless compliance is necessitated due to the manner in
which Tenant uses and occupies the Demised Premises, or any act or omission by
Tenant.
Section 29.02. Any failure by Landlord to enforce any rules and
regulations now or hereafter in effect, either against Tenant or any other
tenant in the Building, shall not constitute a waiver of any such rules and
regulations.
ARTICLE 30.
NOTICES
-------
Section 30.01. Any notice, request or demand permitted or required to be
given by the terms and provisions of this Lease, or by any law or governmental
regulation, either by Landlord to Tenant or by Tenant to Landlord, shall be in
writing. Unless otherwise required by such law or regulation, such notice,
-53-
request or demand shall be given, and shall be deemed to have been served and
given by Landlord and received by Tenant, when Landlord (1) shall have deposited
such notice, request or demand by registered or certified mail enclosed in a
securely closed postpaid wrapper, in a United States Government general or
branch post office, addressed to Tenant at the Demised Premises, and (2) until
Tenant has moved its offices to the Demised Premises, shall have deposited such
notice, request or demand by registered or certified mail enclosed in a securely
closed postpaid wrapper in such a post office addressed to Tenant at its address
as stated on the first page of this Lease. Additionally a copy of all notices to
Tenant shall be sent to Tenant at: CitySearch, Inc., 000 Xxxx Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000 Att: Chief Financial Officer. Such
notice, request or demand shall be given, and shall be deemed to have been
served and given by Tenant and received by Landlord, when Tenant shall have
deposited such notice, request or demand by registered or certified mail
enclosed in a securely closed postpaid wrapper in such a post office addressed
to Landlord at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Either party may, by
notice as aforesaid, designate a different address or addresses for notices,
requests or demands to it.
ARTICLE 31.
NO WAIVER; ENTIRE AGREEMENT
---------------------------
Section 31.01. The failure of Landlord to seek redress for violation of,
or to insist upon the strict performance of, any covenant or condition of this
Lease, or any of the Rules and Regulations set forth or hereafter adopted by
Landlord shall not prevent a subsequent act which would have originally
constituted a violation from having all the force and effect of an original
violation. The receipt by Landlord of rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach. The failure
of Landlord to enforce any of the Rules and Regulations set forth, or hereafter
adopted, against Tenant and/or any other tenant in the Building shall not be
deemed a waiver of any such Rules and Regulations. No provision of this Lease
shall be deemed to have been waived by Landlord, unless such waiver be in
writing signed by Landlord. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement on any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy in this Lease provided.
Section 31.02. This Lease with the Schedules annexed hereto, if any,
contains the entire agreement between Landlord and Tenant, and any executory
agreement hereafter made between
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Landlord and Tenant shall be ineffective to change, modify, waive, release,
discharge, terminate, or effect an abandonment of this Lease, in whole or in
part, unless such executory agreement is in writing and signed by the party
against which enforcement of the change, modification, waiver, release,
discharge, termination or the effecting of the abandonment is sought.
ARTICLE 32.
CAPTIONS
--------
. .
Section 32.01. The captions of Articles in this Lease are inserted only as
a matter of convenience and for reference, and they in no way define, limit or
describe the scope of this Lease or the intent of any provision thereof.
ARTICLE 33.
INABILITY TO PERFORM
--------------------
Section 33.01. This Lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on the
part of Tenant to be performed shall in no way be affected, impaired or excused
because Landlord is unable to fulfill any of its obligations under this Lease or
to supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make, or is delayed in making any repair, additions,
alterations or decorations or is unable to supply or is delayed in supplying any
equipment or fixtures if Landlord is prevented or delayed from so doing by
reason of strike or labor troubles or any outside cause whatsoever including but
not limited to, governmental preemption in connection with a National Emergency
or by reason of any rule, order or regulation of any department or subdivision
thereof of any government agency or by reason of the conditions of supply and
demand which have been or are affected by war or other emergency. This Lease and
the obligation of Landlord to perform all of the covenants and agreements
hereunder on the part of Landlord to be performed shall, except as otherwise
specifically set forth herein, in no way be affected, impaired or excused
because Tenant is unable to fulfill any of its obligations under this Lease
(expressly excluding the obligation of Tenant to pay any Fixed Rent, additional
rent or any other monetary item hereunder) if Tenant is prevented or delayed
from so doing by reason of strike or labor troubles or any outside cause
whatsoever beyond the reasonable control of Tenant (which shall not be deemed to
include Tenant's failure to possess or inability to procure sufficient funds or
to obtain labor and/or materials at a below average price) including but not
limited to, governmental preemption in connection with a National Emergency or
by reason of any rule, order or regulation of any department or subdivision
thereof of any government agency or by reason of
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the conditions of supply and demand which have been or are affected by war or
other emergency.
ARTICLE 34.
NO REPRESENTATION BY LANDLORD
-----------------------------
Section 34.01. Landlord or Landlord's agents have made no representations
or promises with respect to the Building, the Land or the Demised Premises
except as herein expressly set forth, and no rights, easements or licenses are
acquired by Tenant by implication or otherwise except as expressly set forth in
the provisions of this Lease. The taking of possession of the Demised Premises
by Tenant shall be conclusive evidence, as against Tenant, that Tenant accepts
said premises and that the Demised Premises and the Building of which the same
form a part were in good and satisfactory condition at the time such possession
was so taken subject to Landlord's obligation under Section 2.02 hereof.
ARTICLE 35.
NAME OF BUILDING
----------------
Section 35.01. The Building may be known as or by such name as Landlord,
in its sole discretion, may elect, and Landlord shall have the right from time
to time to change such designation or name without Tenant's consent.
ARTICLE 36.
SUCCESSORS AND ASSIGNS
----------------------
Section 36.01. The covenants, conditions and agreements contained in this
Lease shall bind and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and, except as otherwise
provided herein, their assigns.
ARTICLE 37.
DEFERRED COLLECTIONS
--------------------
Section 37.01. If all or any part of the Fixed Rent or additional rents,
as above defined, shall at any time become uncollectible, reduced or required to
be refunded by virtue of any rules, regulations, orders, laws and ordinances
(including, without limitation, rent control or stabilization laws), or
governmental or quasi-governmental authorities having jurisdiction ("Laws and
Ordinances"), then for the period prescribed by said Laws and Ordinances, Tenant
shall pay to Landlord the maximum amounts permitted pursuant to said Laws and
Ordinances. Upon the expiration of the applicable period of time
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during which such amounts shall be uncollectible, reduced or refunded, Tenant
shall pay to Landlord as additional rent, within fifteen (15) days after demand,
all such uncollected, reduced or refunded amounts that would have been payable
for the period absent such Laws and Ordinances; provided, however, that the
retroactive collection thereof shall then be lawful.
ARTICLE 38.
FEES/INTEREST/LATE CHARGES
--------------------------
Section 38.01. Whenever any default by Tenant causes Landlord to incur
attorneys' fees and/or any other costs or expenses, Tenant agrees that it shall
pay and/or reimburse Landlord for such fees, costs or expenses promptly upon
being billed therefor. Landlord and Tenant hereby agree that the non-prevailing
party in any legal proceeding between them shall pay the reasonable legal fees
and disbursements of the prevailing party within thirty (30) days after receipt
of a xxxx therefor. In the event of any settlement of such proceeding, or any
partial award to either party, the parties shall each pay their own legal fees
and disbursements and neither party shall be responsible for payment to the
other for the same.
Section 38.02. If any monies owing by Tenant under this Lease are paid
more than ten (10) days after the date such monies are payable pursuant to the
provisions of this Lease, Tenant shall pay Landlord interest thereon, at the
Interest Rate, for the period from the date such monies were originally payable
to the date such monies are paid. In the event that three (3) times in any
twelve (12) month period Tenant shall have defaulted beyond any applicable
notice and cure period in the payment of Fixed Rent or additional rent, or any
part of either, then any further default by Tenant within such twelve (12) month
period shall permit Landlord to collect from Tenant, upon demand, in addition to
any interest payable pursuant to this Article 38, or elsewhere in this Lease, a
late charge equal to the amount of Fixed Rent and additional rent so due
multiplied by a percentage equal to the then prime rate of interest charged by
Marine Midland Bank, N.A. as compensation to Landlord for the costs incurred by
it as a result of such defaults, Landlord and Tenant acknowledging that the
actual amount of such costs would be impossible to ascertain.
ARTICLE 39.
ABATEMENT OF RENT
-----------------
Section 39.01. Anything herein to the contrary notwithstanding, provided
this Lease shall be in full force and effect and Tenant shall not be in default
hereunder beyond any applicable notice and grace periods, the Fixed Rent shall
xxxxx
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at the rate of $4,166.66 per month for a period of six (6) months from and after
the Commencement Date.
ARTICLE 40.
SECURITY DEPOSIT
----------------
Section 40.01. Upon execution of this Lease, Tenant shall deliver to
Landlord an irrevocable letter of credit (the "Letter of Credit") in the amount
of $26,250 issued by a New York City commercial bank acceptable to Landlord in
its discretion, and in the form of the letter of credit annexed hereto as
Schedule D, to be held by Landlord as security ("Security Deposit") for the
faithful performance and observance by Tenant of the terms, provisions and
conditions of this Lease. It is agreed that in the event Tenant defaults, in
respect of any of the terms, provisions and conditions of this Lease, including,
but not limited to, the payment of Fixed Rent or additional rent, Landlord may
draw down upon the Letter of Credit and use, apply or retain the whole or any
part of the proceeds thereof to the extent required for the payment of any Fixed
Rent and additional rent or any other sum as to which Tenant is in default or
for any sum which Landlord may expend or may be required to expend by reason of
Tenant's default in respect of any of the terms, covenants and conditions of
this Lease, including, but not limited to, any damages or deficiency in the re-
letting of the Demised Premises, whether such damages or deficiency accrued
before or after summary proceedings or other re-entry by Landlord. In the event
that Tenant shall fully and faithfully comply with all of the terms, provisions,
covenants and conditions of this Lease, the Security Deposit shall be returned
promptly to Tenant after the date fixed as the Expiration Date hereof and after
delivery of entire possession of the Demised Premises to Landlord. In the event
of an assignment by Landlord of its interest in the Lease, Landlord shall have
the right to transfer the Security Deposit to the assignee and Landlord shall
thereupon be released by Tenant from all liability for the return of such
Security Deposit and Tenant agrees to look to the assignee solely for the return
of said Security Deposit, and it is agreed that the provisions hereof shall
apply to every transfer or assignment made of the Security Deposit to a new
assignee. Tenant further covenants that it will not assign or encumber or
attempt to assign or encumber the Security Deposit and that neither Landlord nor
its successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
Section 40.02. In the event of a default by Tenant of any of the terms,
provisions and conditions of this Lease Landlord shall be permitted to draw down
the entire amount of the Letter of Credit (or a portion thereof) and apply the
proceeds (or a portion thereof) in accordance with Section 40.01 of this Article
-58-
and retain the balance for the Security Deposit required hereunder.
Section 40.03. If Landlord shall apply all or any portion of the Security
Deposit (by way of a draw on the Letter of Credit), then Tenant shall deposit
with Landlord, upon demand, a sufficient amount of cash or an additional Letter
of Credit to bring the balance of cash and the Letter of Credit held by Landlord
hereunder to the amount of the Security Deposit. Any use by Landlord of all or
any portion of the Security Deposit pursuant to the provisions hereof shall be
deemed an involuntary payment by Tenant and shall not be deemed a waiver by
Landlord of Tenant's default or Landlord's right to terminate this Lease
pursuant to the provisions of this Lease.
Section 40.04. Provided Tenant has not been in default under the terms and
conditions of the Lease during the first eighteen (18) months of the Term,
Landlord shall return the Letter of Credit to Tenant upon the expiration of said
eighteen (18) month period. Upon the return of the Letter of Credit as
aforesaid, this Article 40 shall be deemed to be null and void and of no further
force and effect.
ARTICLE 41.
TENANT'S EXPANSION OPTION
-------------------------
Section 41.01. In the event that Tenant has notified Landlord in writing
that it desires to lease additional space in the Building (any such space is
hereinafter referred to as the "Expansion Space") and provided same becomes
available for direct leasing (i.e., a lease of such space expires or is
----
terminated and such space is not leased again by the same tenant or occupant, or
the successors or assigns or subtenants of such tenant or occupant, by renewal
or a new lease or modification of a previous lease, and such space is not
subject to any other lease or an option contained in another lease, or the space
is not subject to a lease as of the date hereof, and the space is not one with
respect to which Landlord has commenced negotiations with any other proposed
tenant), then, Landlord shall send Tenant a notice setting forth the date on
which Landlord has obtained, or anticipates obtaining, vacant possession of the
Expansion Space. Upon Landlord giving such a notice, provided this Lease shall
be in full force and effect and provided that Tenant shall not be in default
hereunder beyond any applicable notice and grace period either as of the date of
Tenant's exercise of the expansion option herein described or as of the day
which would otherwise be the first day of Tenant's leasing of the Expansion
Space (which conditions regarding default may be waived by Landlord in its sole
discretion), and further provided that there shall be not less than five (5)
years remaining in the Term as of the Expansion Space Commencement Date (as
hereinafter defined) (unless Tenant shall simultaneously exercise its extension
option contained in Article 42 hereof), then Tenant shall have the
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option, exercisable by notice to Landlord given within five (5) days after
Landlord's notice to Tenant, time being of the essence with respect to Tenant's
notice, to lease the Expansion Space from Landlord upon the terms and conditions
hereinafter set forth. In the event Tenant fails to exercise its option to
accept the Expansion Space within five (5) days from the date of the applicable
notice from Landlord, Landlord shall have the right to lease the Expansion Space
to any other proposed tenant for any term whatsoever and Tenant shall be deemed
to have waived its rights to the Expansion Space.
Section 41.02. If Tenant exercises its option to lease the Expansion Space
in a timely manner, then on the date (the "Expansion Space Commencement Date")
Landlord delivers possession of the Expansion Space to Tenant, the Expansion
Space shall be added to the Demised Premises. Tenant acknowledges that it will
take the Expansion Space "as-is", and Landlord shall not be obligated to perform
any work, furnish any materials, or give Tenant any rent credit or work
allowance or any sum of money with respect thereto, and the Expansion Space
shall become part of the Demised Premises upon and subject to all of the terms
and conditions of this Lease (including the provisions of Section 2.02 hereof
with regard to latent defects and Section 8.05 with respect to Pre-Existing
Conditions), except that the Fixed Rent payable by Tenant for the Expansion
Space shall be equal to the greater of (i) the Fixed Rent then in effect from
time to time for the Demised Premises (on a per square foot basis) including all
escalations and additional rent payable as herein provided or (ii) the fair
market rental value of the Expansion Space (the "Expansion FMRV"). The
Expansion FMRV shall be determined in accordance with the following procedure:
(i) Immediately after the exercise by Tenant of its option
contained herein, Landlord and Tenant shall use their best efforts to agree
upon the Expansion FMRV. In the event Landlord and Tenant cannot reach
agreement within fifteen (15) Business Days after the date of Tenant's
notice of exercise of its option contained herein, Landlord and Tenant
shall each select a reputable, licensed real estate broker having an office
in New York County and familiar with the rentals then being charged in the
Building and in comparable buildings (respectively, "Landlord's Broker" and
"Tenant's Broker") who shall confer promptly after their selection by
Landlord and Tenant and shall use their best efforts to agree upon the
Expansion FMRV, taking into consideration all relevant factors, including,
as a primary factor, the rental which Landlord is then commanding or
requiring for leases of comparable space in the Building (or, if there is
then no comparable space in the Building, taking into consideration the
quality of non-comparable space in the Building relative to the Expansion
Space). If
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Landlord's Broker and Tenant's Broker cannot reach agreement within forty-
five (45) days after the date of Tenant's notice of exercise of its option
contained herein, then within ten (10) days thereafter, they shall
designate a third reputable, licensed real estate broker having an office
in New York County (the "Independent Broker"). Upon the failure of
Landlord's Broker and Tenant's Broker to agree upon the designation of the
Independent Broker, then the Independent Broker shall be appointed by the
appropriate official of the Real Estate Board of New York, Inc. upon ten
(10) days notice, or by any other real estate trade organization exercising
functions similar to those exercised by The Real Estate Board of New York,
Inc. Concurrently with such appointment, Landlord's Broker and Tenant's
Broker shall each submit a letter to the Independent Broker, with a copy to
Landlord and Tenant, setting forth such broker's estimate of the Expansion
FMRV, taking into consideration the factors described above (respectively,
"Landlord's Broker's Letter" and "Tenant's Broker's Letter").
(ii) In the event the Expansion FMRV set forth in Landlord's
Broker's Letter and Tenant's Broker's Letter shall differ by less than
$2.50 per square foot for any year during the remainder of the Term, then
the Expansion FMRV shall not be determined by the Independent Broker, and
the Expansion FMRV shall be the average of the Expansion FMRV set forth in
Landlord's Broker's Letter and Tenant's Broker's Letter. In the event the
Expansion FMRV set forth in Landlord's Broker's Letter and Tenant's
Broker's Letter shall differ by more than $2.49 per square foot per annum
for any year during the remainder of the Term, the Independent Broker shall
conduct such investigations and hearings as he may deem appropriate and
shall, within sixty (60) days after the date of his designation, choose
either the rental set forth in Landlord's Broker's Letter or Tenant's
Broker's Letter to be the Expansion FMRV during the Term and such choice
shall be binding upon Landlord and Tenant. Landlord and Tenant shall each
pay the fees and expenses of its respective broker. The fees and expenses
of the Independent Broker shall be shared equally by Landlord and Tenant.
Section 41.03. In the event the Fixed Rent for the Expansion Space shall
not have been determined prior to the Expansion Space Commencement Date, then
the Fixed Rent for the Expansion Space to be paid by Tenant to Landlord until
such determination has been made shall be the Fixed Rent for the Demised
Premises (on a per square foot basis) immediately
-61-
preceding the Expansion Space Commencement Date, including all escalations or
additional rent payable pursuant to Article 3 hereof or as otherwise provided
herein. After such determination of the Fixed Rent for the Expansion Space has
been made, any excess rental for the Expansion Space theretofore paid by Tenant
to Landlord shall be credited by Landlord against the next ensuing monthly
installments of Fixed Rent payable by Tenant to Landlord and any deficiency in
Fixed Rent due from Tenant to Landlord attributable to the Expansion Space shall
be immediately paid.
Section 41.04. Promptly after Tenant exercises its option to lease the
Expansion Space and the Fixed Rent for the Expansion Space shall have been
determined, Landlord and Tenant shall execute and deliver an agreement (i)
incorporating the Expansion Space into the definition of the Demised Premises,
(ii) setting forth the Fixed Rent for the Expansion Space, (iii) amending
Section 3.04 to reflect the increase in the Percentage attributable to the
Expansion Space and the increase in the Wage Rate Factor attributable to the
Expansion Space and (iv) amending Section 4.01 to reflect the increase in the
dollar amount set forth therein attributable to such Expansion Space; provided
the failure of the parties to enter into such an agreement shall not affect
their respective rights and obligations hereunder.
Section 41.05. Under no circumstances shall Landlord have any liability
for the failure of any occupant of all or a portion of the Expansion Space to
vacate same at the end of the term of such occupant's lease. Landlord agrees to
take such actions as are reasonable, in its sole judgment, to obtain vacant
possession of any such space at the end of such term provided Landlord's failure
to deliver such possession to Tenant shall in no event affect the enforceability
of this Lease.
ARTICLE 42.
TENANT'S EXTENSION OPTION
-------------------------
Section 42.01. Provided this Lease shall then be in full force and effect
and Tenant shall not be in default hereunder beyond any applicable notice or
grace period either as of the date of Tenant's exercise of the extension option
described herein or as of the day which would otherwise be the first day of the
Extension Term, as defined herein (which conditions regarding default may be
waived by Landlord in its sole discretion), Tenant shall have the right, at its
option, to extend the Term for a single five (5) year period (the "Extension
Term"). The Extension Term shall commence on the day immediately following the
original Expiration Date and shall expire on the day prior to the fifth (5th)
anniversary of such date unless the Extension Term shall sooner end pursuant to
any of the terms, covenants or conditions of this Lease or pursuant to law.
Tenant shall give Landlord written notice of Tenant's intention to exercise such
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option on or before the date which is nine (9) months prior to the original
Expiration Date, the time of exercise being of the essence, and upon the giving
of such notice, this Lease and the Term shall be extended without execution or
delivery of any other or further documents, with the same force and effect as if
the Extension Term had originally been included in the Term and the Expiration
Date shall thereupon be deemed to be the last day of the Extension Term. All of
the terms, covenants and conditions of this Lease shall continue in full force
and effect during the Extension Term, including items of additional rent and
escalation which shall remain payable on the terms herein set forth, except that
the Fixed Rent shall be as determined in accordance with Section 42.02 of this
Article and Tenant shall have no further right to extend the Term pursuant to
this Article.
Section 42.02. The Fixed Rent payable by Tenant for the Demised Premises
during the Extension Term shall be the greater of (i) the Fixed Rent then in
effect, including all escalations and additional rent payable as herein
provided, or (ii) the fair market rental value of the Demised Premises taking
into consideration all relevant factors, including, as a primary factor, the
rental which Landlord is then commanding or requiring for comparable space in
the Building (or, if there is then no comparable space in the Building, taking
into consideration the quality of non-comparable space in the Building relative
to the Demised Premises) (fair market rental value taking into account the
foregoing is hereinafter referred to as the "FMRV"). The FMRV shall be
determined in accordance with the following procedure:
(i) Immediately after the exercise by Tenant of its option under
Section 42.01 above, Landlord and Tenant shall use their best efforts to
agree upon the FMRV. In the event Landlord and Tenant cannot reach
agreement within fifteen (15) Business Days after the date of Tenant's
notice of exercise of its option, Landlord and Tenant shall each select a
reputable qualified, licensed real estate broker having an office in New
York County and familiar with the rentals then being charged in the
Building and in comparable buildings (respectively, "Landlord's Broker" and
"Tenant's Broker") who shall confer promptly after their selection by
Landlord and Tenant and shall use their best efforts to agree upon the
FMRV. If Landlord's Broker and Tenant's Broker cannot reach agreement
within sixty (60) days after the date of Tenant's notice of exercise of its
option, then within ten (10) days thereafter, they shall designate a third
reputable, licensed real estate broker having an office in New York County
(the "Independent Broker"). Upon the failure of Landlord's Broker and
Tenant's Broker to agree upon the designation of the Independent Broker,
then the Independent Broker shall be appointed by the appropriate official
of The Real Estate Board of New York, Inc. upon ten (10) days notice, or by
any other real estate trade
-63-
organization having jurisdiction and exercising functions similar to those
exercised by The Real Estate Board of New York, Inc. Concurrently with such
appointment, Landlord's Broker and Tenant's Broker shall each submit a
letter to the Independent Broker, with a copy to Landlord and Tenant,
setting forth such broker's estimate of the FMRV (respectively, Landlord's
Broker's Letter" and "Tenant's Broker's Letter").
(ii) In the event the FMRV set forth in Landlord's Broker's Letter
and Tenant's Broker's Letter shall differ by less than $2.50 per square
foot for each year during the Extension Term, then the FMRV shall not be
determined by the Independent Broker, and the FMRV shall be the average of
the FMRV set forth in Landlord's Broker's Letter and Tenant's Broker's
Letter. In the event the FMRV set forth in Landlord's Broker's Letter and
Tenant's Broker's Letter shall differ by more than $2.49 per square foot
per annum for any year during the Extension Term, the Independent Broker
shall conduct such investigations and hearings as he may deem appropriate
and shall, within sixty (60) days after the date of his designation, choose
either the rental set forth in Landlord's Broker's Letter or Tenant's
Broker's Letter to be the FMRV during the Extension Term and such choice
shall be binding upon Landlord and Tenant. Landlord and Tenant shall each
pay the fees and expenses of its respective broker. The fees and expenses
of the Independent Broker shall be shared equally by Landlord and Tenant.
Section 42.03. In the event the Extension Term shall commence prior to
determination of the Fixed Rent during the Extension Term as herein provided,
then the Fixed Rent to be paid by Tenant to Landlord until such determination
has been made shall be the Fixed Rent for the twelve (12) month period
immediately preceding the commencement of the Extension Term, including all
escalations or additional rent payable pursuant to Article 3 hereof or as
otherwise provided herein. After such determination has been made for the Fixed
Rent during the Extension Term, any excess rental for the Extension Term
theretofore paid by Tenant to Landlord shall be credited by Landlord against the
next ensuing monthly Fixed Rent payable by Tenant to Landlord and any deficiency
in Fixed Rent due from Tenant to Landlord during the Extension Term shall be
immediately paid.
Section 42.04. Promptly after the Fixed Rent has been determined, Landlord
and Tenant shall execute and deliver an agreement setting forth the Fixed Rent
for the Extension Term, as finally determined, provided the failure of the
parties to do so shall not affect their respective rights and obligations
hereunder.
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IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
SAGE REALTY CORPORATION, AGENT
By: [SIGNATURE ILLEGIBLE]
-----------------------------------
Landlord
CITYSEARCH, INC.
By: [SIGNATURE ILLEGIBLE]
-----------------------------------
Tenant
State of California
County of Los Angeles
On May 1, 1997 before me, XXXXXX XXXXXXX, NOTARY PUBLIC
----------- ------------------------------------------------------
DATE NAME, TITLE OF OFFICER . E.G. "XXXX XXX, NOTARY PUBLIC"
personally appeared XXXXXXX XXXXXXXXX
-------------------------------------------------------------
NAME(S) OF SIGNER(S)
[_] personally known to me - OR - [X] proved to me on the basis of satisfactory
evidence to be the person(s) whose
name(s) is/are subscribed to the within
instrument and acknowledged to me that
he/she/they executed the same in
his/her/their authorized capacity(ies),
and that by his/her/their signature(s)
on the instrument the person(s), or the
entity upon behalf of which the,
person(s) acted, executed the
instrument.
[SEAL APPEARS HERE] WITNESS my hand and official seal.
/s/ Xxxxxx Xxxxxxx
----------------------------------------
SIGNATURE OF NOTARY
--------------------------------- OPTIONAL -------------------------------------
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
[_] INDIVIDUAL
[_] CORPORATE OFFICER
OFFICE LEASE
_______________________________ ---------------------------------------
TITLE(S) TITLE OR TYPE OF DOCUMENT
[_] PARTNER(S) [_] LIMITED
[_] GENERAL /////////////////////////
---------------------------------------
NUMBER OF PAGES
[_] ATTORNEY-IN-FACT
[_] TRUSTEE(S)
[_] GUARDIAN/CONSERVATOR /////////////////////
[_] OTHER:_________________________ ---------------------------------------
_______________________________ DATE OF DOCUMENT
_______________________________
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES) ONE
---------------------------------------
___________________________________ SIGNER(S) OTHER THAN NAMED ABOVE
___________________________________
ACKNOWLEDGEMENTS
State of New York )
ss.:
County of Queens )
On the 7th day of May 1997, before me personally came Xxxxxx Xxxxxxx
to me known, who being by me duly sworn, did depose and say that he resides at
[SIGNATURE ILLEGIBLE] that he is the Executive VP of SAGE REALTY COPORATION, 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.
[SIGNATURE ILLEGIBLE]
---------------------------------
Notary Public
CORPORATE TENANT
----------------
State of New York )
ss.:
County of New York)
On the ____ day of __________________ 1997, before me personally came
______________________ to me known, who being by me duly sworn, did depose and
say that he resides at _________________________________; that (s)he is the
____________ of CITYSEARCH, INC., the corporation described in and which
executed the above instrument; and that (s)he signed (her) his name by authority
of the Board of Directors of such corporation.
______________________________
Notary Public
SCHEDULE "A"
FLOOR PLAN
SEE ATTACHED
[FLOOR PLAN APPEARS HERE]
SCHEDULE "B"
LANDLORD'S WORK
I. PLANS AND WORK
1. Plan Submission
---------------
Tenant has submitted to Landlord for review and approval complete and
detailed final architectural, mechanical and engineering plans and
specifications labeled 3-GN, 3-WL, 3-KC, 3-DM, 3-ET (all dated 4/22/97) and 3-CP
and 3-DT (all dated 4/28/97) prepared by Xxxxx Xxxx Associates showing the
alterations required by Tenant to the Demised Premises in order to prepare the
Demised Premises for Tenant's occupancy. In addition to submission of the
aforesaid plans and specifications, Tenant shall also furnish any and all
documents and information which Landlord may reasonably require for submission
to its insurance compan(ies), mortgagee(s), contractors and other interested
parties.
2. Authorization to Proceed
------------------------
The plans and specifications, as approved by Landlord, are hereinafter
referred to as the "Final Plans" and all work required by the Final Plans to be
preformed by Landlord is hereinafter referred to as "Landlord's Work." Landlord
shall perform Landlord's Work in accordance with good construction practices
using new or like new materials.
The submission of the Final Plans to Landlord shall be deemed
authorization by Tenant for Landlord to proceed with the work shown on the Final
Plans, subject to the provisions hereof. Any approvals required to be given by
either party shall be deemed given, unless within five (5) days after any
submission the party receiving the same notifies the submitting party of an
objection thereto. Any architect or designer now or hereafter acting for or on
behalf of Tenant shall be deemed an agent of Tenant and authorized to bind
Tenant in all respects.
3. Compliance with Laws & Codes
----------------------------
Landlord hereby agrees to be responsible for Landlord's Work meeting
applicable laws, rules, ordinances, requirements and or regulations of any
governmental or quasi-governmental authority having jurisdiction thereover.
Neither Landlord's approval of the Final Plans, performance of the Landlord's
Work nor any statement made herein or in the body of the Lease shall constitute
an express or implied representation of Landlord that any or all work performed
and installation supplied pursuant to the Final Plans is suitable for the
particular requirements of Tenant or any specific or general use and purpose of
Tenant.
-2-
4. Filing with Governmental Agencies
---------------------------------
Landlord shall cause the Final Plans and/or appropriate building
notices and forms relating thereto to be filed with and approved by any
governmental and quasi-governmental authorities having jurisdiction over
Landlord's Work. All costs, fees and expenses incurred in connection with
obtaining the approvals of and filings with such governmental and quasi-
governmental authorities as well as all engineering and architectural costs
associated therewith, if any, shall be paid for by Landlord. Any additional
approvals or filings necessitated by changes made by Tenant to the Final Plans
shall be at the sole cost and expense of Tenant.
5. Architectural & Engineering Services
------------------------------------
The Final Plans shall be prepared by Tenant at Landlord's own cost and
expense.
The air conditioning system to serve the Demised Premises will be
designed and initially balanced at Landlord's expense. Any changes to the Final
Plans and any changes to the original air-conditioning design necessitated by
any changes made by Tenant to the Final Plans shall be at Tenant's expense.
6. Entry by Tenant
---------------
Prior to the Commencement Date, entry by Tenant, its agents,
contractors or subcontractors, in or on the Demised Premises for performance of
work in the Demised Premises not included within Landlord's Work, or for any
other purpose whatsoever, shall be at Tenant's sole risk and responsibility.
Upon the request of Landlord, Tenant shall deliver to Landlord policies and
certificates of insurance reasonably satisfactory to Landlord. In the event
Tenant or Tenant's contractor shall enter upon or perform work in the Demised
Premises or any other part of the Building, Tenant agrees to indemnify and save
Landlord free and harmless, from and against any and all claims whatsoever
arising out of said entry or such work.
Tenant agrees that should Tenant, its agents, contractors or
subcontractors, enter upon the Demised Premises for the purpose of performing
any work not included within Landlord's Work, or for any other purpose
whatsoever, the labor employed by Tenant or anyone performing such work, for or
on behalf of Tenant, shall always be harmonious and compatible with the labor
employed by Landlord or any agents, contractors or subcontractors of Landlord.
Should such labor be unharmonious or incompatible, Landlord may require Tenant,
its agents and/or contractors to withdraw from the Demised Premises. Tenant's
agents, contractors and subcontractors and their respective employees shall
comply with the special rules, regulations and requirements of Building
management for the performance and coordination of said agents,
-3-
contractors, subcontractors and their employees so as to avoid the intrusion
into the operation of the Building and to avoid disturbing the quiet enjoyment
of other tenants.
As a condition to Landlord's permission to Tenant to make any of
Tenant's installations in the Demised Premises, Landlord may require that Tenant
agree with Landlord the fixing of the Commencement Date of this Lease.
Landlord agrees to remain responsible for one (1) year following
substantial completion of Landlord's Work to cure all defects in workmanship,
design, materials or equipment with respect to Landlord's Work (notice of which
shall be given to Landlord within such one (1) year period), and for a longer
period, if and to the extent that the cure of any such defect is covered under
the terms of any warranty or guaranty that Landlord may have received from any
supplier, contractor or subcontractor.
II. SUBSTANTIAL COMPLETION
----------------------
Landlord's Work shall be deemed to be substantially completed
("Substantially Completion" or "Substantial Completion") on the date (the
"Substantial Completion Date") when Landlord's Work shall have been completed in
accordance with the Final Plans with the exception of punchlist items (i.e.,
insubstantial details of construction, mechanical adjustment or decoration which
remain to be performed in connection with Landlord's Work which shall be
completed with reasonable promptness after the Commencement Date). Landlord
hereby agrees to cause its contractor to cooperate with Tenant's contractors in
order to phase the construction of Landlord's Work with Tenant's work provided
that completion of Landlord's Work will not be delayed nor the cost of
Landlord's Work be increased thereby.
III. DELAYS
------
The term "Tenant Delay" shall mean any delay that Landlord may
encounter in the completion Landlord's Work by reason of any act, neglect,
failure or omission of Tenant, its agents, servants, contractors, architect or
employees, in the performance of Tenant's obligations under this Schedule B,
including:
l. Changes
-------
Any delay due to changes made by or on behalf of Tenant in the Final Plans;
2. Tenant Work
-----------
Any delay caused by work by or on behalf of tenant, other than Landlord's Work
as described in the Final Plans; and
-4-
3. Non-payment of Tenant Contribution
----------------------------------
Non-payment of any installment of Tenant's Contribution (as defined in Section
IV below), or any other payment required of Tenant under this Schedule B or
elsewhere in the Lease, when due.
If the Substantial Completion Date shall be delayed by reason of a
Tenant Delay, the Demised Premises shall be deemed to be Substantially Completed
for purposes of the Commencement Date (as defined in the Lease) as of the date
that the Demised Premises would have been Substantially Completed but for any
such Tenant Delay, as determined by Landlord in its reasonable discretion,
whether or not any such Tenant Delay could have been avoided by the commitment
by Landlord of additional personnel to the performance of Landlord's Work. In
addition, Tenant shall, promptly upon demand, reimburse Landlord for all damages
resulting from such Tenant Delay.
IV. LIABILITY FOR ABOVE BUILDING STANDARD WORK
------------------------------------------
Tenant shall be liable to Landlord or Landlord's designated agent for
costs incurred by Landlord in the completion of Landlord's Work to the extent
that such costs are incurred as a result of a change requested by Tenant in the
work as shown on the Final Plans. In computing the cost to Tenant of any change
to the Final Plans requested by Tenant, Landlord agrees to charge Tenant only
for the increased cost of Landlord's Work (i.e. deducting any savings which it
realizes by reason of such change from any increase it incurs by reason of such
change). Landlord or Landlord's agent shall inform Tenant by notice of the
cost of such extra work which shall be payable by Tenant together with a
handling and supervision fee as charged by Landlord's contractor which shall not
exceed twenty-one percent (21%) (such costs together with such fee being
collectively, "Tenant's Contribution") as additional rent within ten (10) days
of delivery to Tenant of an invoice for same. Landlord shall perform such extra
work only if Tenant approves the cost thereof in writing within three (3) days
from Landlord's notice thereof.
SCHEDULE "C"
RULES AND REGULATIONS
---------------------
l. The rights of tenants in the entrances, corridors, elevators and
escalators of the Building are limited to ingress to and egress from the
tenants' premises for the tenants and their employees, licensees and invitees,
and no tenant shall use, or permit the use of, the entrances, corridors,
escalators or elevators for any other purpose. No bicycles, dogs or other
animals may be brought into the Building by Tenant, or its employees, licensees
or invitees. No tenant shall invite to the tenant's premises, or permit the
visit of, persons in such numbers or under such conditions as to interfere with
the use and enjoyment of any of the plazas, entrances, corridors, escalators,
elevators and other facilities of the Building by other tenants. Fire exits and
stairways are for emergency use only, and they shall not be used for any other
purposes by the tenants, their employees, licensees or invitees. No tenant
shall encumber or obstruct, or permit the encumbrance or obstruction of, any of
the sidewalks, plazas, entrances, corridors, escalators, elevators, fire exits
or stairways of the Building. Landlord reserves the right to control and
operate the public portions of the Building and the public facilities, as well
as facilities furnished for the common use of the tenants, in such manner as it
deems best for the benefit of the tenants generally.
2. The cost of repairing any damage to the public portions of the
Building or the public facilities or to any facilities used in common with other
tenants, caused by a tenant or the employees, licensees or invitees of the
tenant, shall be paid by such tenant.
3. Landlord may refuse admission to the Building outside of ordinary
business hours to any person not known to the watchman in charge or not having a
pass issued by Landlord or not properly identified, and may require all persons
admitted to or leaving the Building outside of ordinary business hours to
register. Tenant's employees, agents and visitors shall be permitted to enter
and leave the Building whenever appropriate arrangements have been previously
made between Landlord and Tenant with respect thereto. Each tenant shall be
responsible for all persons for whom he requests such permission and shall be
liable to Landlord for all acts of such persons. Any person whose presence in
the Building at any time shall, in the judgment of Landlord, be prejudicial to
the safety, character, reputation and interests of the Building or its tenants
may be denied access to the Building or may be ejected therefrom. In case of
invasion, riot, public excitement or other commotion, Landlord may prevent all
access to the Building during the continuance of the same, by closing the doors
or otherwise, for the safety of the tenants and protection of property in the
Building. Landlord may require any person leaving the Building with any package
or other object to exhibit a pass from the tenant from whose
C-2
premises the package or object is being removed, but the establishment and
enforcement, or failure to enforce, of such requirements shall not impose any
responsibility on Landlord for the protection of any tenant against the removal
of property from the premises of the tenant. Landlord shall, in no way, be
liable to any tenant for damages or loss arising from the admission, exclusion
or ejection of any person to or from the tenant's premises or the Building under
the provisions of this rule.
4. Except to the extent otherwise permitted in the lease, no tenant
shall obtain or accept or use in its premises ice, drinking water, food,
beverage, towel, barbering, boot blacking, floor polishing, lighting
maintenance, cleaning or other similar services from any persons not authorized
by Landlord in writing to furnish such services, provided always that the
charges for such services by persons authorized by Landlord are not excessive.
Such services shall be furnished only at such hours, in such places within the
tenant's premises and under such regulations as may be fixed by Landlord.
5. No awnings or other projections over or around the windows shall
be installed by any tenant and only such window blinds as are supplied, or
permitted by Landlord shall be used in a tenant's premises.
6. There shall not be used in any space, or in the public halls of
the Building, either by Tenant or by jobbers or others, in the delivery or
receipt of merchandise or mail, any hand trucks, except those equipped with
rubber tires and side guards.
7. All entrance doors in each tenant's premises shall be left locked
when the tenant's premises are not in use. Entrance doors shall not be left
open at any time. All windows in each tenant's premises shall be kept closed at
all times, and all blinds or drapes therein above the ground floor shall be
lowered or closed when and as reasonably required because of the position of the
sun, during the operation of the Building air conditioning system to cool or
ventilate the tenant's premises.
8. No noise, including the playing of any musical instruments, radio
or television, which, in the judgment of Landlord, might disturb other tenants
in the Building shall be made or permitted by any tenant and no cooking shall be
done in Tenant's premises except as expressly approved by Landlord. Tenant may
heat food (but not xxxx) items in the Demised Premises using a microwave or
toaster oven. Nothing shall be done or permitted in any tenant's premises and
nothing shall be brought into or kept in any tenant's premises which would
impair or interfere with any of the Building services or the proper and economic
heating, cleaning or other servicing of the Building or the premises, or the use
or enjoyment by any other tenant of any other premises, nor shall there be
installed by any tenant any
C-3
ventilating, air conditioning, electrical or other equipment of any kind which,
in the judgment of Landlord, might cause any such impairment or interference.
No dangerous, inflammable, combustible or explosive object or material shall be
brought into the Building by any tenant or with the permission of any tenant
(which shall not be deemed to include ordinary office supplies in small
quantities as shall be necessary for the conduct of Tenant's business.)
9. Tenant shall not permit any cooking or food odors emanating from
the Demised Premises to seep into other portions of the Building.
10. No acids, vapors or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the Building
which may damage them. The water and wash closets and other plumbing fixtures
in or serving any tenant's premises shall not be used for any purpose other than
the purpose for which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other foreign substances shall be deposited therein.
All damages resulting from any misuse of the fixtures shall be borne by the
tenant who, or whose servants, employees, agents, visitors or licensees, shall
have caused the same.
11. No signs, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any tenant on any part of the
outside or inside the premises or the Building without the prior written consent
of Landlord. In the event of the violation of the foregoing by any tenant,
Landlord may remove the same without any liability, and may charge the expense
incurred by such removal to the tenant or tenants violating this rule. Interior
signs and lettering on doors and elevators shall be inscribed, painted, or
affixed for each tenant by Landlord at the expense of such tenant, and shall be
of a size, color and style acceptable to Landlord.
12. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows in any tenant's premises, and no lock on any door
therein shall be changed or altered in any respect. Duplicate keys for a
tenant's premises and toilet rooms shall be procured only from Landlord, which
may make a reasonable charge therefor which charge shall be equal to Landlord's
out of pocket cost therefor. Upon the termination of a tenant's lease, all keys
to the tenant's premises and toilet rooms shall be delivered to Landlord.
13. No tenant shall xxxx, paint, drill into, or in any way deface any
part of the Building or the premises demised to such tenant (which shall not be
deemed to include display or installation of such items as bulletin boards,
pictures, etc.) Not boring, cutting or stringing of wires shall be permitted,
except with the prior written consent of Landlord, and as
C-4
Landlord may direct. Not tenant shall install any resilient tile or similar
floor covering in the premises demised to such tenant except in a manner
approved by Landlord.
14. 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 or advertise for laborers giving an address at the Building.
15. No premises shall be used, or permitted to be used, at any time,
as a store for the sale or display of goods or merchandise or any king, or as a
restaurant, shop, booth, bootblack or other stand, or for the conduct of any
business or occupation which involves direct patronage of the general public on
the premises demised to such tenant, or for manufacturing or for other similar
purposes.
16. The requirements of tenants will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside for the regular duties, unless under
special instructions from the office of the Landlord.
17. Each tenant shall, at its expense, provide artificial light in
the premised demised to such tenant for Landlord's agents, contractors and
employees while performing janitorial or other cleaning services and making
repairs or alterations in said premises.
18. Employees of Tenant shall not loiter around the hallways,
stairways, elevators, front, roof or any other part of the Building used in
common by the occupants thereof.
19. Any cuspidors or similar containers or receptacles used in the
Demised Premises shall be cared for and cleaned by and at the expense of Tenant.
20. Any and all wet and/or food garbage, including coffee grinds, is
to be deposited in a plastic liner bag in a waste basket or other receptacle.
21. Tenant shall separate all refuse and rubbish of Tenant in
accordance with the methods and procedures set forth, from time to time, by
Landlord.
SCHEDULE "D"
FORM OF LETTER OF CREDIT
Dated:____________________
Sage Realty Corporation, As Agent
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Irrevocable Clean Letter of Credit
----------------------------------
Gentlemen:
By order of our client, ________________________________________, we
hereby open our clean Irrevocable Letter of Credit No. _____ in your favor for
an amount not to exceed in the aggregate $_______________ U.S. Dollars effective
immediately.
Funds under this credit are available to you against your site draft
drawn on us mentioning thereon our Credit No. _______.
This Letter of Credit shall expire sixteen months from the date
hereof, provided, however, that it is a condition of this Letter of Credit that
it shall be deemed automatically extended, from time to time, without amendment,
for one year from the expiry date hereof and from each and every future expiry
date, unless at least thirty (30) days prior to any expiry date we shall notify
you by registered mail that we elect not to consider this Letter of Credit
renewed for any such additional period.
This Letter of Credit is transferable and may be transferred one or
more times. However, no transfer shall be effective unless advice of such
transfer is received by us in the form attached signed by you.
We hereby agree with you that all drafts drawn or negotiated in
compliance with the terms of this Letter of Credit will be duly and promptly
honored upon presentment and delivery of your draft to our office at
__________________________________ if negotiated on or prior to the expiry date
as the same may from time to time be extended.
D-2
Except as otherwise specified herein, this Letter of Credit is subject
to the Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500.
Very truly yours,
(Name of Bank)
By:____________________
Re: Credit ___________________
Issued By: ___________________
Gentlemen:
For value received, the undersigned beneficiary irrevocably transfers
to:
____________________________
(Name of Second Beneficiary)
____________________________
(Address)
all rights of the undersigned beneficiary to draw under the above Letter of
Credit in its entirety.
By this transfer, all rights of the undersigned beneficiary in such
Letter of Credit are transferred to the second beneficiary and the second
beneficiary shall have the sole rights of beneficiary thereof, including the
sole rights relating to any amendments whether increases or extensions or other
amendments and whether now existing or hereafter made. All amendments are to be
advised direct to the second beneficiary without necessity of any consent of or
notice of the undersigned beneficiary.
The advice of such Letter of Credit is returned herewith, and we ask
you to endorse the assignment on the reverse thereof and forward it direct to
the second beneficiary with your customary notice of transfer.
Enclosed is remittance of $100.00 in payment of your transfer
commission and in addition thereto we agree to pay you on demand any expenses
which may be incurred by you in connection with this transfer.
Very truly yours,
Signature of Beneficiary
SIGNATURE AUTHENTICATED
(Bank)
(Authorized Signature)
1997 HOLIDAY OBSERVANCES
SCHEDULE" "E"
LOCAL #32B/J LOCAL #94 SAGE REALTY LIFT CO.
(CLEANING)* (ENGINEERS) * (ELEVATORS)
NEW YEAR'S DAY
WEDNESDAY, JANUARY 1 X X X X
-----------------------------------------------------------------------------------
XXXXXX XXXXXX XXXX DAY
MONDAY, JANUARY 20 X - - -
-----------------------------------------------------------------------------------
LINCOLN'S BIRTHDAY
WEDNESDAY, FEBRUARY 12 - - - X
-----------------------------------------------------------------------------------
PRESIDENT'S DAY
MONDAY, FEBRUARY 17 X - X X
-----------------------------------------------------------------------------------
GOOD FRIDAY
FRIDAY, MARCH 28 X - - -
-----------------------------------------------------------------------------------
MEMORIAL DAY
MONDAY, MAY 26 X X X X
-----------------------------------------------------------------------------------
INDEPENDENCE DAY
FRIDAY, JULY 4 X X X X
-----------------------------------------------------------------------------------
LABOR DAY
MONDAY, SEPTEMBER 1 X X X X
-----------------------------------------------------------------------------------
COLUMBUS DAY
MONDAY, OCTOBER 13 X - X X
-----------------------------------------------------------------------------------
VETERAN'S DAY
TUESDAY, NOVEMBER 11 - - - X
-----------------------------------------------------------------------------------
THANKSGIVING DAY
THURSDAY, NOVEMBER 27 X X X X
-----------------------------------------------------------------------------------
DAY AFTER THANKSGIVING
FRIDAY, NOVEMBER 28 X - X X
-----------------------------------------------------------------------------------
CHRISTMAS
THURSDAY, DECEMBER 25 X X X X
-----------------------------------------------------------------------------------
DAY AFTER CHRISTMAS
FRIDAY, DECEMBER 26 - - X -
-----------------------------------------------------------------------------------
NEW YEAR'S DAY
THURSDAY, JANUARY 1, 1998 X X X X
-----------------------------------------------------------------------------------
DAY AFTER NEW YEAR'S
FRIDAY, JANUARY 2, 1998 - - X -
-----------------------------------------------------------------------------------
LOREC INC.
ELECTRIC EVALUATION REPORT
--------------------------
For: Sage Realty Corporation Date: 4/25/97
Re: CitySearch
3rd floor, Portion
000 Xxxx 00xx Xxxxxx, NYC
SUMMARY OF DATA PROVIDED:
-------------------------
------------------------
Energy Demand
Kwhrs Kw
------------------------
Lighting 2,593 11.99
Misc Equipment 672 2.90
Computers 2,784 9.90
HVAC 5 mos 2,188 10.96
------------------------
Totals 8,237 35.75
------------------------
Evaluation Under Utility Rate
-----------------------------
Utility: Con Edison
Rate: SC4-I Winter/Summer rates averaged
Fuel Adj 0.008611
Rate Adj 0.080526
Energy $237 kwhrs@ $0.0543 $447.24
Fuel Adj: $237 kwhrs@ $0.008611 $70.92
Demand 35.7 kw@ $26.93 $962.70
Subtotal $1,480.86
Rate Adj Av 1996 8.0526% $119.25
Subtotal $1,600.11
Sales Tax 8.25% $132.01
---------
Total Value per Month $1,732.12
---------------------
----------------------------------
Annual Value: $20,785.44
==================================
LOREC. inc
--------------------------------------------------------------------------------
Electricity Evaluation Report
For: Sage Realty Corporation Date 4/25/97
Re: CitySearch
3rd Floor, Portion, 320 West 13 Street, NYC
Data Submitted:
QTY W Each Description Comm Coinc Hours: Kw K whrs
Load Factor month Demand
---------------------------------------------------------------------------------------------------------------------------
Lighting
---------------------------------------------------------------------------------------------------------------------------
1 11,625 Lighting per space 11,625 1.00 210 11.63 2,441
---------------------------------------------------------------------------------------------------------------------------
28 20 Dark Lamp 560 0.50 165 0.28 94
---------------------------------------------------------------------------------------------------------------------------
2 40 Exit 80 1.00 730 0.08 38
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Lighting Totals 12,265 11.99 2,593
---------------------------------------------------------------------------------------------------------------------------
Misc Equipment
---------------------------------------------------------------------------------------------------------------------------
1 400 Refrigerator 400 0.65 100 0.30 40
---------------------------------------------------------------------------------------------------------------------------
1 1,200 Micro Wave 1,200 0.10 2 0.10 2
---------------------------------------------------------------------------------------------------------------------------
1 500 Coffee Maker 500 0.50 40 0.30 20
---------------------------------------------------------------------------------------------------------------------------
1 400 Phone Switch 400 1.00 730 0.40 292
---------------------------------------------------------------------------------------------------------------------------
1 26 Fax 26 1.00 80 0.00 2
---------------------------------------------------------------------------------------------------------------------------
1 26 Fax 36 0.50 10 0.00 0
---------------------------------------------------------------------------------------------------------------------------
1 2,200 Copier 2,200 0.69 100 1.30 220
---------------------------------------------------------------------------------------------------------------------------
1 1,200 Copier 1,200 0.40 80 0.50 96
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Equipment Totals 5,962 2.90 672
---------------------------------------------------------------------------------------------------------------------------
Computers
---------------------------------------------------------------------------------------------------------------------------
25 344 PC + Monitor 9,632 0.90 210 8.70 2,923
---------------------------------------------------------------------------------------------------------------------------
25 0 Lamp 0 0.00 0 0.00 0
---------------------------------------------------------------------------------------------------------------------------
1 150 Printer 150 0.90 150 0.10 23
---------------------------------------------------------------------------------------------------------------------------
1 150 Printer 150 0.50 50 0.10 8
---------------------------------------------------------------------------------------------------------------------------
1 500 File Server 500 0.90 730 0.50 365
---------------------------------------------------------------------------------------------------------------------------
1 500 SQL Server 500 0.90 730 0.50 365
---------------------------------------------------------------------------------------------------------------------------
Computer Totals 10,932 9.90 2,784
---------------------------------------------------------------------------------------------------------------------------
HVAC
---------------------------------------------------------------------------------------------------------------------------
2 17,300 15 Ton A/C 35,000 0.75 150 26.30 5,250
---------------------------------------------------------------------------------------------------------------------------
(5 Month/Yr)
---------------------------------------------------------------------------------------------------------------------------
HVAC Total 35,000 26.30 5,250
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Installation List Page 1
