EXHIBIT 10.57
STANDARD FORM OF OFFICE LEASE
The Real Estate Board of New York, Inc.
Agreement of Lease, made as of the 1st day of April, 2001, between
WESTPORT COMMUNICATIONS, LLC, a Delaware limited liability company, having an
address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Owner" or "Landlord") and
FIBERNET TELECOM GROUP, INC., a Delaware corporation, having an address at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Tenant")
W I T N E S S E T H:
Owner hereby leases to Tenant and Tenant hereby hires from Owner a portion
of the ground floor as shown hatched on Exhibit A annexed hereto (the "premises"
or "demised premises") in the building known as 00 Xxxxxx Xxxxxx (the "Building"
or "building"), in the Borough of Manhattan, City of New York, for the term (the
"Term") of fourteen (14) years and nine (9) months, to commence as of April 1,
2001 (the "Commencement Date"), and to expire on December 31, 2015 (the
"Expiration Date") (or until such Term shall cease and expire as hereinafter
provided), at the fixed annual rental rate (the "Fixed Rent") set forth in
Article 41,
which Tenant agrees to pay in lawful money of the United States which shall be
legal tender in payment of all debts and dues, public and private, at the time
of payment, in equal monthly installments in advance on the first day of each
month during said term, at the office of Owner or such other place as Owner may
designate [Insert 1], without any set off or deduction whatsoever, except that
Tenant shall pay the first monthly installment(s) on the execution hereof
------
(unless this lease be a renewal).
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent Occupancy: 1. Tenant shall pay the rent as above and as
hereinafter provided.
2. Tenant shall use and occupy the demised
premises for general office purposes, and, to
the extent permitted by the certificate of
occupancy for the Building, for
telecommunications facilities and ancillary
uses, and for no other purpose.
Tenant Alterations: 3. [Insert 2] If any mechanic's lien is filed
against the demised premises, or the building
of which the same forms a part, for work
claimed to have been done for, or materials
furnished to, Tenant, whether or not done
pursuant to this article, the same
shall be discharged by Tenant within [Insert
2a] days thereafter, at Tenant's expense, by
payment or filing the bond required by law.
All fixtures and all paneling, partitions,
railings and like installations, installed in
the premises at any time, either by Tenant or
by Owner on Tenant's behalf, shall, upon
installation, become the property of Owner
and shall remain upon and be surrendered with
the demised premises unless Owner, by notice
to Tenant no later than twenty days prior to
the date fixed as the termination of this
lease, elects to relinquish Owner's right
thereto and to have them removed by Tenant,
in which event the same shall be removed from
the premises by Tenant prior to the
expiration of the lease, at Tenant's expense.
Nothing in this Article shall be construed to
give Owner title to or to prevent Tenant's
removal of trade fixtures, moveable office
furniture and equipment, but upon removal of
any such from the premises or upon removal of
other installations as may be required by
Owner, Tenant shall immediately and at its
expense, repair and restore the premises to
the condition existing prior to installation
and repair any damage to the demised premises
or the building due to such removal. All
property permitted or required to be removed
by Tenant at the end of the term remaining in
the premises after Tenant's removal shall be
deemed abandoned and may, at the election of
Owner, either be retained as Owner's property
or may be removed from the premises by Owner,
at Tenant's expense. [Insert 3]
Maintenance and Repairs: 4. Tenant shall, throughout the term of this
lease, take good care of the demised premises
and the fixtures and appurtenances therein.
Tenant shall be responsible for all damage or
injury to the demised premises or any other
part of the building and the systems and
equipment thereof, whether requiring
structural or nonstructural repairs caused by
or resulting from carelessness, omission,
neglect or improper conduct of Tenant,
Tenant's subtenants, agents, employees,
invitees or licensees, or which arise out of
any work, labor, service or equipment done
for or supplied to Tenant or any subtenant or
arising out of the installation, use or
operation of the property or equipment of
Tenant or any subtenant. Tenant shall also
repair all damage to the building and the
demised premises caused by the moving of
Tenant's fixtures, furniture and equipment.
Tenant shall promptly make, at Tenant's
expense, all repairs in and to the demised
premises for which Tenant is responsible,
using only the contractor for the trade or
trades in question, selected from a list of
at least two contractors per trade submitted
by Owner. Any other repairs in or to the
building or the facilities and systems
thereof for which Tenant is responsible shall
be performed by Owner at the Tenant's
expense. Owner shall maintain in good
2
working order and repair the exterior and the
structural portions of the building,
including the structural portions of its
demised premises, and the public portions of
the building interior and the building
plumbing, electrical, heating and ventilating
systems (to the extent such systems presently
exist) serving the demised premises. Tenant
agrees to give prompt notice of any defective
condition in the premises for which Owner may
be responsible hereunder. There shall be no
allowance to Tenant for diminution of rental
value and no liability on the part of Owner
by reason of inconvenience, annoyance or
injury to business arising from Owner or
others making repairs, alterations, additions
or improvements in or to any appurtenances or
equipment thereof. It is specifically agreed
that Tenant shall not be entitled to any
setoff or reduction of rent by reason of any
failure of Owner to comply with the covenants
of this or any other article of this Lease.
Tenant agrees that Tenant's sole remedy at
law in such instance will be by way of an
action for damages for breach of contract.
The provisions of this Article 4 shall not
apply in the case of fire or other casualty
which are dealt with in Article 9 hereof.
Window Cleaning: 5. Tenant will not clean nor require, permit,
suffer or allow any window in the demised
premises to be cleaned from the outside in
violation of Section 202 of the Labor Law or
any other applicable law or of the Rules of
the Board of Standards and Appeals, or of any
other Board or body having or asserting
jurisdiction.
Requirements of Law, Fire 6. Prior to the commencement of the lease
Insurance, Floor Loads: term, if Tenant is then in possession and at
all times thereafter, Tenant, at Tenant's
sole cost and expense, shall promptly comply
with all present and future laws, orders and
regulations of all state, federal, municipal
and local governments, departments,
commissions and boards and any direction of
any public officer pursuant to law, and all
orders, rules and regulations of the New York
Board of Fire Underwriters, Insurance
Services Office, or any similar body which
shall impose any violation, order or duty
upon Owner or Tenant with respect to the
demised premises, arising out of Tenant's use
or manner of use thereof, (including Tenant's
permitted use) or, with respect to the
building if arising out of Tenant's use or
manner of use of the premises or the building
(including the use permitted under the
lease). Nothing herein shall require Tenant
to make structural repairs or alterations
unless Tenant has, by its manner of use of
the demised premises, or method of operation
therein, violated any such laws, ordinances,
orders, rules, regulations or requirements
with respect thereto. Tenant may, after
securing Owner to Owner's
3
satisfaction against all damages, interest,
penalties and expenses, including, but not
limited to, reasonable attorney's fees, by
cash deposit or by surety bond in an amount
and in a company satisfactory to Owner,
contest and appeal any such laws, ordinances,
orders, rules, regulations or requirements
provided same is done with all reasonable
promptness and provided such appeal shall not
subject Owner to prosecution for a criminal
offense or constitute a default under any
lease or mortgage under which Owner may be
obligated, or cause the demised premises or
any part thereof to be condemned or vacated.
Tenant shall not do or permit any act or
thing to be done in or to the demised
premises which is contrary to law, or which
will invalidate or be in conflict with public
liability, fire or other policies of
insurance at any time carried by or for the
benefit of Owner with respect to the demised
premises or the building of which the demised
premises form a part, or which shall or might
subject Owner to any liability or
responsibility to any person or for property
damage. Tenant shall not keep anything in the
demised premises except as now or hereafter
permitted by the Fire Department, Board of
Fire Underwriters, Fire Insurance Rating
Organization or other authority having
jurisdiction, and then only in such manner
and such quantity so as not to increase the
rate for fire insurance applicable to the
building, nor use the premises in a manner
which will increase the insurance rate for
the building or any property located therein
over that in effect prior to the commencement
of Tenant's occupancy. Tenant shall pay all
costs, expenses, fines, penalties, or
damages, which may be imposed upon Owner by
reason of Tenant's failure to comply with the
provisions of this article and if by reason
of such failure the fire insurance rate
shall, at the beginning of this lease or at
any time thereafter, be higher than it
otherwise would be, then Tenant shall
reimburse Owner, as additional rent
hereunder, for that portion of all fire
insurance premiums thereafter paid by Owner
which shall have been charged because of such
failure by Tenant. In any action or
proceeding wherein Owner and Tenant are
parties, a schedule or "make-up" of rate for
the building or demised premises issued by
the New York Fire Insurance Exchange, or
other body making fire insurance rates
applicable to said premises shall be
conclusive evidence of the facts therein
stated and of the several items and charges
in the fire insurance rates then applicable
to said premises. Tenant shall not place a
load upon any floor of the demised premises
exceeding the floor load per square foot area
which it was designed to carry and which is
allowed by law. Owner reserves the right to
prescribe the weight and position of all
safes, business machines and mechanical
equipment. Such installations shall be placed
and
4
maintained by Tenant, at Tenant's expense, in
settings sufficient, in Owner's judgement, to
absorb and prevent vibration, noise and
annoyance.
Subordination: 7. This lease is subject and subordinate to
all ground or underlying leases and to all
mortgages which may now or hereafter affect
such leases or the real property of which
demised premises are a part and to all
renewals, modifications, consolidations,
replacements and extensions of any such
underlying leases and mortgages. This clause
shall be self-operative and no further
instrument of subordination shall be required
by any ground or underlying lessor or by any
mortgagee, affecting any lease or the real
property of which the demised premises are a
part. In confirmation of such subordination,
Tenant shall from time to time execute
promptly any certificate that Owner may
request.
Property Loss, Damage 8. Owner or its agents shall not be liable
Reimbursement Indemnity: for any damage to property of Tenant or of
others entrusted to employees of the
building, nor for loss of or damage to any
property of Tenant by theft or otherwise, nor
for any injury or damage to persons or
property resulting from any cause of
whatsoever nature, unless caused by or due to
the negligence of Owner, its agents, servants
or employees, tenants or persons in, upon or
about said building or caused by operations
in construction of any private, public or
quasi public work. If at any time any windows
of the demised premises are temporarily
closed, darkened or bricked up (or
permanently closed, darkened, or bricked up,
if required by law) for any reason whatsoever
including, but not limited to Owner's own
acts, Owner shall not be liable for any
damage Tenant may sustain thereby and Tenant
shall not be entitled to any compensation
therefor nor abatement or diminution of rent
nor shall the same release Tenant from its
obligations hereunder nor constitute an
eviction. Tenant shall indemnify and save
harmless Owner against and from all
liabilities, obligations, damages, penalties,
claims, costs and expenses for which Owner
shall not be reimbursed by insurance,
including reasonable attorneys fees, paid,
suffered or incurred as a result of any
breach by Tenant, Tenant's agents,
contractors, employees, invitees, or
licensees, of any covenant or condition of
this lease, or the negligence [Insert 4] of
the Tenant, Tenant's agents, contractors,
employees, invitees, or licensees. Tenant's
liability under this lease extends to the
acts and omissions of any sub-tenant, and any
agent, contractor, employee, invitee or
licensee of any sub-tenant, and any agent,
contractor, employee, invitee or licensee of
any sub-tenant. [Insert 5] In case any action
or proceeding is brought against [Insert 6]
by reason of any such claim, [Insert 7] upon
5
written notice from [Insert 8], will, at
[Insert 9] expense, resist or defend such
action or proceeding by counsel approved by
[Insert 8] in writing, such approval not to
be unreasonably withheld.
Destruction, Fire and 9. (a) If the demised premises or any part
Other Casualty: thereof shall be damaged by fire or other
casualty, Tenant shall give immediate notice
thereof to Owner and this lease shall
continue in full force and effect except as
hereinafter set forth. (b) If the demised
premises are partially damaged or rendered
partially unusable by fire or other casualty,
the damages thereto shall be repaired by and
at the expense of Owner and the rent and
other items of additional rent, until such
repair shall be substantially completed,
shall be apportioned from the day following
the casualty according to the part of the
premises which is usable. (c) If the demised
premises are totally damaged or rendered
wholly unusable by fire or other casualty,
then the rent and other items of additional
rent as hereinafter expressly provided shall
be proportionately paid up to the time of the
casualty and thenceforth shall cease until
the date when the premises shall have been
repaired and restored by Owner (or sooner
reoccupied in part by Tenant then rent shall
be apportioned as provided in subsection (b)
above), subject to Owner's right to elect not
to restore the same as hereinafter provided.
(d) If the demised premises are rendered
wholly unusable or (whether or not the
demised premises are damaged in whole or in
part) if the building shall be so damaged
that Owner shall decide to demolish it or to
rebuild it, then, in any of such events,
owner may elect to terminate this lease by
written notice to Tenant, given within 90
days after such fire or casualty, or 30 days
after adjustment of the insurance claim for
such fire or casualty, whichever is sooner,
specifying a date for the expiration of the
lease, which date shall not be more than 60
days after the giving of such notice, and
upon the date specified in such notice the
term of this lease shall expire as fully and
completely as if such date were the date set
forth above for the termination of this lease
and Tenant shall forthwith quit, surrender
and vacate the premises without prejudice
however, to Landlord rights and remedies
against Tenant under the lease provisions in
effect prior to such termination, and any
rent owing shall be paid up to such date and
any payments of rent made by Tenant which
were on account of any period subsequent to
such date shall be returned to Tenant. Unless
Owner shall serve a termination notice as
provided for herein, Owner shall make the
repairs and restorations under the conditions
of (b) and (c) hereof, with all reasonable
expedition, subject to delays due to
adjustment of insurance claims, labor
troubles and causes beyond Owner's control.
After any such casualty, Tenant shall
cooperate with
6
Owner's restoration by removing from the
premises as promptly as reasonably possible,
all of Tenant's salvageable inventory and
moveable equipment, furniture, and other
property. Tenant's liability for rent shall
resume five (5) days after written notice
from Owner that the premises are
substantially ready for Tenant's occupancy.
(e) Nothing contained hereinabove shall
relieve Tenant from liability that may exist
as a result of damage from fire or other
casualty. [Insert 10] Tenant acknowledges
that Owner will not carry insurance on
Tenant's furniture and/or furnishings or any
fixtures or equipment, improvements, or
appurtenances removable by Tenant and agrees
that Owner will not be obligated to repair
any damage thereto or replace the same. (f)
Tenant hereby waives the provisions of
Section 227 of the Real Property Law and
agrees that the provision of this article
shall govern and control in lieu thereof.
Eminent Domain: 10. If the whole or any part of the demised
premises shall be acquired or condemned by
Eminent Domain for any public or quasi public
use or purpose, then and in that event, the
term of this lease shall cease and terminate
from the date of title vesting in such
proceeding and Tenant shall have no claim for
the value of any unexpired term of said lease
and assigns to Owner, Tenant's entire
interest in any such award. Tenant shall have
the right to make an independent claim to the
condemning authority for the value of
Tenant's moving expenses and personal
property, trade fixtures and equipment,
provided Tenant is entitled pursuant to the
terms of the lease to remove such property,
trade fixture and equipment at the end of the
term and provided further such claim does not
reduce Owner's award.
Assignment, Mortgage, 11. Tenant, for itself, its heirs,
Etc.: distributees, executors, administrators,
legal representative, successor and assigns,
expressly covenants that it shall not assign,
mortgage or encumber this agreement, nor
underlet, or suffer or permit the demised
premises or any part thereof to be used by
others, without the prior written consent of
Owner in each instance. Transfer of the
majority of the stock of a corporate Tenant
or the majority partnership interest of a
partnership Tenant shall be deemed an
assignment. If this lease be assigned, or if
the demised premises or any part thereof be
underlet or occupied by anybody other than
Tenant, Owner may, after default by Tenant,
collect rent from the assignee, under-tenant
or occupant, and apply the net amount
collected to the rent herein reserved, but no
such assignment, underletting, occupancy or
collection shall be deemed a waiver o this
covenant, or the acceptance of the assignee,
under-tenant or occupant as tenant, or a
release of Tenant from the further
performance by Tenant of covenants on
7
the part of Tenant herein contained. The
consent by Owner to an assignment or
underletting shall not in any way be
construed to relieve Tenant from obtaining
the express consent in writing of Owner to
any further assignment or underletting.
Electric Current: 12. Rates and conditions in respect to
submetering or rent inclusion, as the case
may be, to be added in RIDER attached hereto.
Tenant covenants and agrees that at all times
its use of electric current shall not exceed
the capacity of existing feeders to the
building or the risers of wiring installation
and Tenant may not use any electrical
equipment which, in Owner's opinion,
reasonably exercised, will overload such
installations or interfere with the use
thereof by other tenants of the building. The
change at any time of the character of
electric service shall in no way make Owner
liable or responsible to Tenant, for any
loss, damages or expenses which Tenant may
sustain.
Access to Premises: 13. Owner or Owner's agents shall have the
right (but shall not be obligated) to enter
the demised premises in any emergency at any
time, and, at other reasonable times, to
examine the same and to make such repairs,
replacements and improvements as Owner may
deem necessary and reasonably desirable to
the demised premises or to any other portion
of the building or which Owner may elect to
perform. [Insert 11] Tenant shall permit
Owner to use and maintain and replace pipes
and conduits in and through the demised
premises and to erect new pipes and conduits
therein provided they are concealed within
the walls, floor, or ceiling. Owner may,
during the progress of any work in the
demised premises, take all necessary
materials and equipment into said premises
without the same constituting an eviction nor
shall the Tenant be entitled to any abatement
of rent while such work is in progress nor to
any damages by reason of loss or interruption
of business or otherwise. Throughout the term
hereof Owner shall have the right to enter
the demised premises at reasonable hours
[Insert 12] for the purpose of showing the
same to prospective purchasers or mortgagees
of the building, and during the last six
months of the term for the purpose of showing
the same to prospective tenants. If Tenant is
not present to open and permit an entry into
the demised premises, Owner or Owner's agents
may enter the same whenever such entry may be
necessary or permissible by master key or
[Insert 13] forcibly and provided reasonable
care is exercised to safeguard Tenant's
property, such entry shall not render Owner
or its agents liable therefor, nor in any
event shall the obligations of Tenant
hereunder be affected. If during the last
month of the term Tenant shall have removed
all or substantially all of Tenant's property
therefrom Owner may
8
immediately enter, alter, renovate or
redecorate the demised premises without
limitation or abatement of rent, or incurring
liability to Tenant for any compensation and
such act shall have no effect on this lease
or Tenant's obligations hereunder.
Vault, Vault Space, Area: 14. No Vaults, vault space or area, whether
or not enclosed or covered, not within the
property line of the building is leased
hereunder, anything contained in or indicated
on any sketch, blue print or plan, or
anything contained elsewhere in this lease to
the contrary notwithstanding. Owner makes no
representation as to the location of the
property line of the building. All vaults and
vault space and all such areas not within the
property line of the building, which Tenant
may be permitted to use and/or occupy, is to
be used and/or occupied under a revocable
license, and if and such license be revoked,
or if the amount of such space or area be
diminished or required by any federal, state
or municipal authority or public utility,
Owner shall not be subject to any liability
nor shall Tenant be entitled to any
compensation or diminution or abatement of
rent, nor shall such revocation, diminution
or requisition be deemed constructive or
actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area
shall be paid by Tenant.
Occupancy: 15. Tenant will not at any time use or occupy
the demised premises in violation of the
certificate of occupancy issued for the
building of which the demised premises are a
part. Tenant has inspected the premises and
accepts them as is, subject to the riders
annexed hereto with respect to Owner's work,
if any. In any event, Owner makes no
representation as to the condition of the
premises and Tenant agrees to accept the same
subject to violations, whether or not of
record. [Insert 14]
Bankruptcy: 16. (a) Anything elsewhere in this lease to
the contrary notwithstanding, this lease may
be cancelled by Owner by the sending of a
written notice to Tenant within a reasonable
time after the happening of any one or more
of the following events: (1) the commencement
of a case in bankruptcy or under the laws of
any state naming Tenant as the debtor [Insert
15] or (2) the making by Tenant of an
assignment of any other arrangement for the
benefit of creditors under any state statute.
Neither Tenant nor any person claiming
through or under Tenant, or by reason of any
statute or order of court, shall therefore be
entitled to possession of the premises
demised but shall forthwith quit and
surrender to premises. If this lease shall be
assigned in accordance with its terms, the
provisions of this Article 16 shall be
applicable only to the party then owning
Tenant's interest in
9
this lease.
(b) It is stipulated and agreed that in
the event of the termination of this lease
pursuant to (a) hereof, Owner shall
forthwith, notwithstanding any other
provisions of this lease to the contrary, be
entitled to recover from tenant as and for
liquidated damages an amount equal to the
difference between the rent reserved
hereunder for the unexpired portion of the
term demised and the fair and reasonable
rental value of the demised premises for the
same period. In the computation of such
damages the difference between any
installment of rent becoming due hereunder
after the date of termination and the fair
and reasonable rental value of the demised
premises for the period for which such
installment was payable shall be discounted
to the date of termination at the rate of
four percent (4%) per annum. If such premises
or any part thereof be re-let by the Owner
for the unexpired term of said lease, or any
part thereof, before presentation of proof of
such liquidated damages to any court,
commission or tribunal, the amount of rent
reserved upon such re-letting shall be deemed
to be the fair and reasonable rental value
for the part or the whole of the premises so
re-let during the term of the re-letting.
Nothing herein contained shall limit or
prejudice the right of the Owner to prove for
and obtain as liquidated damages by reason of
such termination, an amount equal to the
maximum allowed by any statute or rule of law
in effect at the time when, and governing the
proceedings in which, such damages are to be
proved, whether or not such amount be
greater, equal to or less than the amount of
the difference referred to above.
Default: 17. (1) If Tenant defaults in fulfilling any
of the covenants of this lease other than the
covenants for the payment of rent or
additional rent; or if the demised premises
become [Insert 16]; or if any execution or
attachment shall be issues against Tenant or
any of Tenant's property whereupon the
demised premises shall be taken or occupied
by someone other then Tenant; or if this
lease be rejected under (S)325 of Title 11 of
the U.S. Code (bankruptcy code); then, in any
one or more such events, upon Owner serving a
written [Insert 17] days notice upon Tenant
specifying the nature of said default and
upon the expiration of said [Insert 17] days,
if tenant shall have failed to comply with or
remedy such default, or if the said default
or omission complained or shall be of a
nature that the same cannot be completely
cured or remedied within said [Insert 17] day
period, and if Tenant shall not have
diligently commenced curing such default
within such [Insert 17] days period, and
shall not thereafter with reasonable
diligence and in good faith, proceed to
10
remedy or cure such default, then Owner may
serve a written [Insert 18] days notice of
cancellation of this lease upon Tenant, and
upon the expiration of said [Insert 18] days
this lease and the term thereunder shall end
and expire as fully and completely as if the
expiration of such [Insert 18] day period
were the day herein definitely fixed for the
end and expiration of this lease and the term
thereof and Tenant shall then quit and
surrender the demised premises to Owner but
Tenant shall remain liable as hereinafter
provided.
(2) If the notice provided for in (1)
hereof shall have been given, and the term
shall expire as aforesaid; or if tenant shall
make default in the payment of the rent
reserved herein or any item of additional
rent herein mentioned or any part of either
or in making any other payment herein
required [Insert 19] then and in any such
events Owner may, without notice, re-enter
the demised premises either by force or
otherwise [Insert 20], and dispossess tenant
by summary proceedings or otherwise [Insert
20], and the legal representative of tenant
or other occupant of demised premises and
remove their effects and hold the premises as
if this lease had not been made, and Tenant
hereby waives the service of notice of
intention to re-enter or to institute legal
proceedings to that end. If Tenant shall make
default hereunder prior to the date fixed as
the commencement of any renewal or extension
of this lease, Owner may cancel and terminate
such renewal or extension agreement by
written notice.
Remedies of Owner and 18. In case of any such default, re-entry,
Waiver of Redemption: expiration and/or dispossess by summary
proceedings or otherwise, (a) the rent shall
become due thereupon and be paid up to the
time of such re-entry, dispossess and/or
expiration, (b) Owner may re-let the premises
or any part thereof, either in the name of
Owner or otherwise, for a term or terms,
which may at Owner's option be less that or
exceed the period which would otherwise have
constituted the balance of the term of this
lese and may grant concessions or free rent
or charge a higher rental than that in this
lease, and/or (c) Tenant or the legal
representatives of Tenant shall also pay
Owner as liquidated damages for the failure
of Tenant to observe and perform said
Tenant's covenants herein contained, any
deficiency between the rent hereby reserved
and/or covenanted to be paid and the net
amount, if any, of the rents collected on
account of the lease or leases of the demised
premises for each month of the period which
would otherwise have constituted the balance
of the term of this lease. The failure of
Owner to re-let to premises or any part
thereof shall not release of effect Tenant's
liability for damages. In computing such
liquidated damages there shall be added to
the said
11
deficiency such expenses as Owner may incur
in connection with re-letting, such as legal
expenses, reasonable attorneys' fees,
brokerage, advertising and for keeping the
demised premises in good order or for
preparing the same for re-letting. Any such
liquidated damages shall be paid in monthly
installments by Tenant on the rent day
specified in this lease and any suit brought
to collect the amount of the deficiency for
any moth shall not be prejudice in any way
the rights of Owner to collect the deficiency
for any subsequent month by a similar
proceeding. Owner, in putting the demised
premises in good order or preparing the same
for re-rental may, at Owner's option, make
such alterations, repairs, replacements,
and/or decorations in the demised premises as
Owner, in Owner's sole judgment, considers
advisable and necessary for purposes or
re-letting the demised premises, and the
making of such alterations, repairs,
replacements, and/or decorations shall not
operate or be construed to release Tenant
from liability hereunder as aforesaid. Owner
shall in no event be liable in any way
whatsoever for failure to re-let the demised
premises, or in the event that the demised
premises are re-let, for failure to collect
the rent thereof under such re-letting, and
in no event shall Tenant be entitled to
receive any excess, if any, of such net rents
collected over the sums payable by Tenant to
Owner hereunder. In no event of a breach or
threatened breach by Tenant of any of the
covenants or provisions hereof, Owner shall
have the right of injunction and the right to
invoke any remedy allowed at law or in equity
as if re-entry summary proceedings and other
remedies were not herein provided for.
Mention in this lease of any particular
remedy, shall not preclude Owner from any
other remedy, in law or in equity. Tenant
hereby expressly waives any and all rights of
redemption granted by or under any present or
future laws in the event of Tenant being
evicted or dispossessed for any cause, or in
the event of Owner obtaining possession of
demised premises, by reason of the violation
by Tenant of any of the covenants and
conditions of this lease, or otherwise.
Fees and Expenses: 19. If Tenant shall default in the observance
or performance of any term or covenant on
Tenant's part to be observed or performed
under or by virtue of any of the terms or
provisions in any article of this lease,
after notice if required and upon expiration
of any applicable grace period if any,
(except in an emergency), then, unless
otherwise provided elsewhere in this lease,
Owner may immediately or at any time
thereafter and without notice perform the
obligation of Tenant thereunder. If Owner, in
connection with the forgoing or in connection
with any default by Tenant in the covenant to
pay rent hereunder [Insert 21], makes any
expenditures or incurs any obligations for
12
the payment of money, including but not
limited to reasonable attorneys' fees, in
instituting, prosecuting of defending any
action or proceeding, and prevails in any
such action or proceeding then Tenant will
reimburse Owner for such sums so paid or
obligations incurred with interest and costs.
The foregoing expenses incurred by reason of
Tenant's default shall be deemed to be
additional rent hereunder and shall be paid
by Tenant to Owner within ten (10) days of
rendition of any xxxx or statement to tenant
therefor. If Tenant's lease term shall have
expired at the time of making such
expenditures or incurring of such
obligations, such sums shall be recoverable
by Owner, as damages.
Building Alterations and 20. Owner shall have the right at any time
Management: without the same constituting an eviction and
without incurring liability to Tenant
therefor to change the arrangement and/or
location of public entrances, passageways,
doors, doorways, corridors, elevators,
stairs, toilets or other public parts of the
building and to change the name, number or
designation by which the building may be
known [Insert 22]. There shall be no
allowance to Tenant for diminution of rental
value and no liability on the part of Owner
by reason of inconvenience, annoyance or
injury to business arising from Owner or
other Tenants making any repairs in the
building or any such alterations, additions
and improvements, Furthermore, Tenant shall
not have any claim against Owner by reason of
Owner's imposition of such controls of the
manner of access to the building by Tenant's
social or business visitors as the Owner may
deem necessary for the security of the
building and its occupants. [Insert 23]
No Representations by 21. Neither Owner nor Owner's agents have
Owner: made any representations or promises with
respect to the physical condition of the
building, the land upon which it is erected
or the demised premises, the rents, leases,
expenses of operation or any other matter or
thing affecting or related to the premises
except as herein expressly set forth and no
rights, easements or licenses are acquired by
Tenant by implication or otherwise except as
expressly set forth in the provision of this
lease. Tenant has inspected the demised
premises and is thoroughly acquainted with
their condition and agrees to take the same
"as is" and acknowledges that the taking of
possession of the demised premises by Tenant
shall be conclusive evidence that the said
premises and the building of which the same
form a part where in good and satisfactory
condition at the time such possession was so
taken, except as to latent defects. All
understandings and agreements heretofore made
between the parties hereto are merged in this
contract, which alone fully and completely
13
expresses the agreement between Owner and
Tenant and executory agreement hereafter made
shall be ineffective to change, modify,
discharge or effect an abandonment of it in
whole or in part, unless such executory
agreement is in writing and signed by the
party against whom enforcement of the change,
modifications, discharge or abandonment is
sought.
End of Term: 22. Upon the expiration or other termination
of the term of this lease, Tenant shall quit
and surrender to Owner the demised premises,
broom clean, in good order and condition,
ordinary wear and damages which Tenant is not
required to repair as provided elsewhere in
this lease excepted, and Tenant shall remove
all its property. Tenant's obligation to
observe or perform this covenant shall
survive the expiration or other termination
of this lease. If the last day of the term of
this Lease or any renewal thereof, falls on a
Sunday, this lease shall expire on non on the
preceding Saturday unless it be a legal
holiday in which case it shall expire at noon
on the preceding business day.
Quite Enjoyment: 23. Owner covenants and agrees with Tenant
that upon Tenant paying the rent and
additional rent and observing and performing
all the terms, covenants and conditions, on
Tenant's part to be observed and performed,
Tenant may peaceably and quietly enjoy the
premises hereby demised, subject,
nevertheless, to the terms and conditions of
this lease including, but not limited to,
Article 31 hereof and to the ground leases,
underlying leases and mortgages hereinbefore
mentioned.
Failure to Give Possession: 24. If Owner is unable to give possession of
the demised premises on the date of the
commencement of the term hereof, because of
the hold-over or retention of possession of
any tenant, undertenant or occupants or if
the demised premises are located in a
building being constructed, because such
building has not been sufficiently completed
to make the premises ready for occupancy or
because of the fact that a certificate of
occupancy has not been procured or for any
other reason, Owner shall not be subject to
any liability for failure to give possession
on said date and the validity of the lease
shall not be impaired under such
circumstances, nor shall the same be
construed in any way to extend the term of
this lease, but the rent payable hereunder
shall be abated (provided Tenant is not
responsible for Owner's inability to obtain
possession or complete construction) until
after Owner shall have given Tenant written
notice that the Owner is able to deliver
possession in condition required by this
lease. If permission is given to Tenant to
enter into the possession of the demised
premises or to occupy premises other that
then demised premises prior to the date
specified as the
14
commencement of the term of this lease,
Tenant covenants and agrees that such
possession and/or occupancy shall be deemed
to be under all the terms, covenants,
conditions and provisions of this lease
except the obligation to pay the fixed annual
rent set forth in the preamble to this lease.
The provisions of this article are intended
to constitute "an express provision to the
contrary" within the meaning of Section 223-a
of the New York Real Property Law. [Insert
23a]
No Waiver: 25. The failure of [Insert 23b] to seek
redress for violation of, or to insist upon
the strict performance of any covenant or
condition of this lease or of any of the
Rules or Regulations, set forth or hereafter
adopted by Owner, shall not prevent a
subsequent act which would have originally
constituted a violation from having all the
force and effect of an original violation.
The receipt by owner of rent and/or
additional rent with knowledge of the breach
of any covenant of this lease shall not be
deemed a waiver of such breach an no
provision of this lease shall be deemed to
have been waived by [Insert 23b] unless such
waiver be in writing signed by [Insert 23c].
No payment by Tenant or receipt by Owner of a
lesser amount then the monthly rent herein
stipulated shall be deemed to be other than
on account of the earliest stipulated rent,
nor shall any endorsement or statement of any
check or any letter accompanying any check or
payment as rent be deemed an accord and
satisfaction, and Owner may accept such check
or payment without prejudice to Owner's right
to recover the balance of such rent or pursue
any other remedy in this lease provided. No
act or thing done by Owner or Owner's agents
during the term hereby demised shall be
deemed an acceptance of a surrender of said
premises, and no agreement to accept such
surrender shall be valid unless in writing
signed by Owner. No employee of Owner or
Owner's agent shall have any power to accept
the keys of said premises prior to the
termination of the leases and the delivery of
keys to any such agent or employee shall not
operate as a termination of the lease or a
surrender of the premises.
Waiver of Trial by Jury: 26. It is mutually agreed by and between
Owner and Tenant that the respective parties
hereto shall and they hereby do waive trial
by jury in any action proceeding or
counterclaim brought by either of the parties
hereto against the other (except for personal
injury or property damage) on any matters
whatsoever arising out of or in any way
connected with this lease, the relationship
of Owner and Tenant, Tenant's use of or
occupancy of said premises, and any emergency
statutory or any other statutory remedy, It
is further mutually agreed that in the event
Owner commences any proceeding or action for
possession including a
15
summary proceeding for possession of the
premises, Tenant will not interpose any
counterclaim of whatever nature or
description in any such proceeding including
a counterclaim under Article 4 except for
statutory mandatory counterclaims.
Inability to perform: 27. This lease and the obligation of Tenant
to pay rent hereunder and perform all of the
other covenants and agreements hereunder on
part of Tenant to be performed shall in no
way be affected, impaired or excused because
Owner is unable to fulfill any of its
obligations under this lease or to supply or
is delayed in supplying any service expressly
or impliedly to be supplied or is unable to
make, or is delayed in making any repair,
additions, alterations or decorations or in
unable to supply or is delayed in supplying
any equipment, fixtures, or other materials
if Owner is prevented or delayed from so
doing by reason of strike or labor troubles
or any cause whatsoever including, but no
limited to, government preemption or
restrictions 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 which have
been or are affected, either directly or
indirectly, by war or other emergency.
Bills and Notices: 28. Except as otherwise in this lease
provided, a xxxx, statement, notice or
communication which Owner may desire or be
required to give to Tenant, shall be deemed
sufficiently given or rendered if, in
writing, delivered to Tenant personally or
sent by registered or certified mail
addressed to Tenant at the building of which
the demised premises form a part or at the
last known resident address or business
address of Tenant or left at any of the
aforementioned premises addressed to Tenant,
and the time of the renditions of such xxxx
of statement and of the giving of such notice
or communications shall be deemed to be the
time when the same is delivered to Tenant,
mailed, or left at the premises as herein
provided. [Insert 24] Any notice by Tenant to
Owner must be served by registered or
certified mail addressed to Owner at the
address first hereinabove given or at such
other address as Owner shall designate by
written notice.
Services Provided by Owners: 29. [Insert 25] Owner shall provide: (a)
necessary elevator facilities on business
days from 8 a.m. to 6 p.m. and have one
elevator subject to call at all other times;
(b) heat to the demised premises when and as
required by law, on business days from 8 a.m.
to 6 p.m.; (c) water for ordinary lavatory
purposes, but if Tenant uses or consumed
water for any other purpose or in unusual
quantities (of which fact Owner shall be the
sole judge), Owner may install a water meter
at Tenant's expense which Tenant shall
thereafter maintain at Tenant's expense in
good
16
working order and repair to register
such water consumption and Tenant shall pay
for water consumed as shown on said meter as
additional rent as and when bills are
rendered; (d) the demised premises are to
kept clean by Tenant, at Tenant's sole
expense, in a manner reasonably satisfactory
to Owner and no one other than persons
approved by Owner shall be permitted to enter
said premises or the building of which they
are a part for such purpose. Tenant shall pay
Owner the cost of removal of any of Tenant's
refuse and rubbish from the building; (f)
Owner reserves the right to stop services of
the heating, elevators, plumbing, electric,
power systems or other services, if any, when
necessary by reason of accident or for
repairs, alterations, replacements or
improvements necessary or desirable in the
judgment of Owner for as long as may be
reasonably required by reason thereof. If the
building of which the demised premises are a
part supplies manually operated elevator
service, Owner at any time may substitute
automatic control elevator service and
proceed diligently with alterations necessary
therefor without in any way affecting this
lease of the obligation of Tenant hereunder.
Captions: 30. The Captions are inserted only as a
matter of convenience and for reference and
in no way define, limit or describe the scope
of this lease not the intent of any
provisions thereof.
Definitions: 31. The term "Office", or "offices" wherever
used in this lease, shall not be construed to
mean premises used as a store or stores, for
the sale or display, at any time, of goods,
wares or merchandise of any kind, or as a
restaurant, shop, booth, bootblack or other
stand, xxxxxx shop, or for other similar
purposes or for manufacturing. The term
"Owner" means a landlord or lessor, and as
used in this lease means only the owner, or
the mortgagee in possession, for the time
being of the land and building (or the owner
of a lease of the building or of the land and
building) of which the demised premises form
a part, so that in the event of any sale or
sales of said land and building or of said
lease, or in the event of a lease of said
building, or of the land and building, the
said Owner shall be and hereby is entirely
freed and relieved of all covenants and
obligations of Owner hereunder, and it shall
be deemed and construed without further
agreement between the partied or their
successors in interest, or between the
parties and the purchaser, at any such sale,
or the said lessee of the building, or of the
land and building, that the purchaser or the
lessee of the building has assumed and agreed
to carry out any and all covenants and
obligations of Owner, hereunder. The words
"re-enter" and "re-entry" as used in this
lease are not restricted to their technical
17
legal meaning. The term "business days" as
used in this lease shall exclude Saturdays,
Sundays and all days observed by the State of
Federal Government as legal holidays and
those designated as holidays by the
applicable building service union employees
services contract or by the applicable
Operating Engineers contract with respect to
HVAC service. Wherever it is expressly
provided in this lease that consent shall not
be unreasonably withheld, such consent shall
not be unreasonably [Insert 25a] delayed.
Adjacent Excavation-Shoring: 32. If an excavation shall be made upon land
adjacent to the demised premises, or shall be
authorized to be made, Tenant shall afford to
the person causing or authorized to cause
such excavation, license to enter upon the
demised premises for the purpose of doing
such work as said person shall deem necessary
to preserve the wall or building of which
demised premises form a part from injury or
damage and to support the same by proper
foundations without any claim for damages or
indemnity against Owner, or diminution or
abatement of rent.
Rules and Regulations: 33. Tenant and Tenant's services, employees,
agents, visitors, and licensees shall observe
faithfully, and comply strictly with, the
Rules and Regulations and such other and
further reasonable Rules and Regulations as
Owner or Owner's agents may from time to time
[Insert 26]. Notice of any additional rules
or regulations shall be given in such manner
as Owner may elect. In case Tenant disputes
the reasonableness of any additional Rule or
Regulation hereafter made or adopted by Owner
or Owner's agents, the parties hereto agree
to submit the question of the reasonableness
of such Rule or Regulation for decision to
the New York office of the American
Arbitration Association, whose determination
shall be final and conclusive upon the
parties hereto. The right to dispute the
reasonableness of any additional Rule and
Regulation upon tenant's part shall be deemed
waived unless the same shall be asserted by
services of a notice, in writing upon Owner
within [Insert 27] days after the giving of
notice thereof. Nothing in this lease
contained shall be construed to impose upon
Owner any duty or obligation to enforce the
Rules and Regulations or terms, covenants or
conditions in any other lease, as against any
other tenant and Owner shall not be liable to
Tenant for violation of the same by any other
tenant, its tenants, employees, agents,
visitors or licensees.
Security: 34. Tenant has deposited with Owner the sum
of $ * as security for the faithful
performance and observance by Tenant
----------
* $5,350,000.00 (the "Security Deposit")
18
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 rent and additional rent, Owner
may use, apply or retain the whole or any
part of the security so deposited to the
extent required for the payment of any rental
and additional rent or any other sum as to
which Tenant is in default or for any sum
which Owner may expend or may be required to
expend by reason of Tenant's default in
respect of any of the terms, covenants and
conditions of this lease, including but not
limited to, any damages or deficiency in the
re-letting of the premises, whether such
damages or deficiency accrued before or after
summary proceedings or other re-entry by
Owner. In the event that Tenant shall fully
and faithfully comply with all of the terms,
provisions, covenants and conditions of this
lease, the security shall be returned to
Tenant after the date fixed as the end of the
Lease and after delivery of entire possession
of the demised premises to Owner. In the
event of a sale of the land and building or
leasing of the building, of which the demised
premises form a part, Owner shall have the
right to transfer the security to the vendee
or lessee and Owner shall thereupon be
released by Tenant from all liability for the
return of such security; and Tenant agrees to
look to the new Owner solely for the return
of said security, and it is agreed that the
provisions hereof shall apply to every
transfer as assignment made of the security
to a new Owner. Tenant further covenants that
it will not assign or encumber or attempt to
assign or encumber the monies deposited
herein as security and that neither Owner nor
its successors or assigns shall be bound by
any such assignment, encumbrance, attempted
assignment or attempted encumbrance.
Estoppel Certificate: 35. Tenant, at any time, and from time to
time, upon at least 10 days' prior notice by
Owner, shall execute, acknowledge and deliver
by Owner, a statement certifying that this
Lease is unmodified and in full force and
effect (or, if there have been modifications,
that the same is in full force and effect as
modified and stating the modifications),
stating the dates to which the rent and
additional rent have been paid, and stating
whether or not there exists any default by
Owner under this Lease, and, if so specifying
each such default.
Successors and Assigns: 36. The covenants, conditions and agreements
contained in this lease shall bind and inure
to the benefit of Owner and Tenant and their
respective heirs, distributes, executors,
administrators, successors, and except as
otherwise provided in this lease, their
assigns. Tenant shall look only to Owner's
estate and interest in the land and building;
for the satisfaction of Tenant's remedies
19
for the collection of a judgment (or other
judicial process) against Owner in the event
of any default by Owner hereunder; and no
other property or assets of such Owner (or
any partner, member, officer or director
thereof, disclosed or undisclosed), shall be
subject to levy, execution or other
enforcement procedure for the satisfaction of
Tenant's remedies under or with respect to
this lease, the relationship of Owner and
Tenant hereunder, or Tenant's use and
occupancy of the demised premises.
In Witness Whereof, Owner and Tenant have respectfully signed and sealed
this lease as of the day and year first above written.
Witness for Owner: WESTPORT COMMUNICATIONS, LLC
By: Sixty Xxxxxx Management LLC
------------------------------------ ------------------------------------
Name: , Manger
----------------
Witness for Tenant: FIBERNET TELECOM GROUP, INC.
By:
------------------------------------ ------------------------------------
Name:
Title:
Employer ID No.:
ACKNOWLEDGEMENTS
CORPORATE OWNER CORPORATE TENANT
STATE OF NEW YORK, ss.: STATE OF NEW YORK, ss.:
County of County of
On this day of , 20 , On this day of , 20 ,
---- ----------- -- ---- ----------- --
before me personally came before me personally came to me known, who being
to me known, who being by me duly sworn, by me duly sworn,
did depose and say that he resides in ; did depose and say that he resides in ;
that he is the of that he is the of
----------- --------------- ------------- ---------------
the corporation described in and which the corporation described in and which
executed the foregoing instrument, as OWNER; executed the foregoing instrument, as OWNER;
that he knows the seal of said corporation; that he knows the seal of said corporation;
the seal affixed to said instrument is such the seal affixed to said instrument is such
corporate seal; that it was so affixed by corporate seal; that it was so affixed by order
order by the Board of Directors of said by the Board of Directors of said
corporation, and that he signed corporation, And that he signed his name
his name thereto by like order. thereto by like order.
-------------------------------------------- ------------------------------------------------
INDIVIDUAL OWNER INDIVIDUAL TENANT
STATE OF NEW YORK, ss.: STATE OF NEW YORK, ss.:
County of County of
On this day of , 20 , On this day of , 20 ,
---- ----------- -- ---- ----------- --
before me personally came to be known and before me personally came to be known and
known to me to be the individual described known to me to be the individual described
in and who, as OWNER, executed the foregoing in and who, as OWNER, executed the foregoing
instrument and acknowledged to me that instrument and acknowledged to me that
he executed the same. he executed the same.
20
-------------------------------------------- ------------------------------------------------
21
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN
ACCORDANCE WITH ARTICLE 33.
1. The sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by any
Tenant or under for any purpose other than for ingress or egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
Owner. There shall not be used in any space, or in the public hall of the
building, either by any Tenant or by jobbers or other in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
sideguards.
2. The water and wash closets and plumbing fixtures shall not be used for any
purposes other then those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any window of
the building and no Tenant shall sweep or throw or permit to be swept or thrown
from the demised premises any dirt or other substances into any of the corridors
or halls, elevators, or out of the doors or windows or stairways of the building
and Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the demised premises, or permit or suffer the demised
premises to be occupied or used in a manner offensive or objectionable to Owner
or other occupants of the building by reason of noise, odors, and/or vibrations,
or interfere in any way with other Tenants or those having business therein, nor
shall any bicycles, vehicles, animals, fish, or birds be kept in or about the
building. Smoking or carrying lighted cigars or cigarettes in the elevators of
the building is prohibited.
4. No awning or other projections shall be attached to the outside walls of the
building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premises if the
same is visible from the outside of the premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance door
of the premises. In the event of the violation of the foregoing by any Tenant,
Owner may remove same without any liability, and may charge the expense incurred
by such removal to Tenant or Tenants violating this rule. Interior signs on
doors and directory tablet shall be inscribed, painted or affixed for each
Tenant by Owner at the expense of such Tenant, and shall be of a size, color and
style acceptable to Owner.
6. No Tenant shall lay linoleum, or other similar floor covering, so that the
same shall come in direct contact with the floor of the demised premises, and,
if linoleum or other similar floor covering is desired to be used an interlining
of builder's deaden felt shall be first affixed to the
22
floor, by a paste or other material, soluble in water, the use of cement of
other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing locks
or mechanism thereof. [Insert 28] Each tenant must upon the termination of his
Tenancy, restore to Owner all keys of stores, offices and toilet rooms, either
furnished to, or otherwise procured by, such Tenant, and in the even of the loss
of any keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky material of any
description shall be delivered to and removed from the premises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reverses the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease or which there Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and each
Tenant shall cooperate to prevent the same. [Insert 29]
10. Owner reserves the right to exclude from the building all persons who do not
present a pass to the building signed by Owner. Owner will furnish passes to
persons for whom any Tenant requests same in writing. Each Tenant shall be
responsible for all persons for whom he requests same in writing. Each Tenant
shall be liable to Owner for all acts of such persons. Tenant shall not have a
claim against Owner by reason of Owner excluding from the building any person
who does not present such pass.
11. Owner shall have the right to prohibit any advertising by any Tenant which
in Owner's [Insert 30] opinion, tends to impair the reputation of the building
or its desirability as a building for offices, and upon written notice from
Owner, Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not cause or permit any odors of cooking or other processes, or
any unusual or other objectionable odors to emanate from the demised premises.
14. Tenant shall not move any safe, heavy machinery, heavy equipment, bulky
matter, or fixtures into or out of the building without Owner's prior written
consent. If such safe, machinery, equipment, bulky matter or fixtures requires
special handling, all work in connection therewith shall comply with the
Administrative Code of the City of New York and all other laws and regulations
applicable thereto and shall be done during such hours and Owner may designate.
15. Refuse and Trash. (1) Compliance by Tenant. Tenant covenants and agrees, at
its sole cost and expense to comply with all present and future laws, orders and
regulations of all state, federal, municipal, and local governments,
departments, commissions and boards regarding the collection, sorting,
separation and recycling of waste products, garbage, refuse and trash. Tenant
shall sort and separate such waste products, garbage, refuse and trash into such
categories as provided by law. Each separately sorted category of waste
products, garbage, refuse and trash
23
shall be placed in separate receptacles reasonably approved by Owner. Such
separate receptacles may, at Owner's option be removed from the demised premises
in accordance with a collection schedule prescribed by law. Tenant shall remove,
or cause to be removed by a contractor acceptable to Owner, at Owner's sole
discretion, such items as Owner may expressly designate. (2) Owner's Rights in
Event of Noncompliance. Owner has the option to refuse to collect or accept from
Tenant waste products, garbage, refuse or trash (a) that is not separated and
sorted as required by law, or (b) which consists of such items as Owner may
expressly designate for Tenant's removal, and to require Tenant to arrange for
such collection at Tenant's sole cost and expense, utilizing a contractor
satisfactory to Owner. Tenant shall pay all costs, expenses, fines, penalties,
or damages that may be imposed on Owner or Tenant by reason of Tenant's failure
to comply with the provisions of this Building Rule 15, and, at Tenant's sole
cost and expense, shall indemnify, defend and hold Owner harmless (including
reasonable legal fees and expenses) from and against any actions, claims and
suits arising from such noncompliance, utilizing counsel reasonably satisfactory
to Owner.
[STANDARD FORM OF LEASE CAPTION]
24
INSERTS TO LEASE DATED AS OF APRIL 1, 2001 BETWEEN
WESTPORT COMMUNICATIONS LLC, AS LANDLORD, AND
FIBERNET TELECOM GROUP, INC., AS TENANT
1. in writing
2. See Article 54.
2a. sixty (60)
3. Notwithstanding anything to the contrary contained herein, Tenant shall be
obligated to remove any particular Alteration only if and to the extent that (i)
such Alteration is structural, and (ii) Landlord advised Tenant in writing at
the time it approved such Alteration that such Alteration must be removed at the
expiration or earlier termination of the Term. Tenant shall, in connection with
its removal of Alterations, also restore any damage resulting from such removal.
Landlord agrees that Tenant will not be required to restore the core drillings
for the installation of dark fiber and related conduit identified as such on its
plans for its initial Alterations, as approved by Landlord.
4. or wilful misconduct
5. Subject to Articles 47 and 73, Landlord shall indemnify and save harmless
Tenant against and from all liabilities, obligations, damages, penalties,
claims, costs and expenses, including reasonable attorneys' fees, paid, suffered
or incurred as a result of any breach by Landlord or Landlord's agents or
employees of any covenant or condition of this lease (except as expressly set
forth in this lease), or the negligence or wilful misconduct of Landlord or
Landlord's agents or employees. The indemnification obligation of Tenant and
Landlord, respectively, in this Article shall exclude consequential damages.
6. either party
7. the other party
8. the first party
9. the second party's
10. See Article 73.
11. In performing any such repairs, replacements and improvements, Landlord
shall use reasonable efforts to minimize its interference with Tenant's
permitted use of the demised premises.
12. and upon reasonable notice
13. , in the event of an emergency,
14. Landlord represents that a true copy of the certificate of occupancy for the
Building is annexed hereto as Exhibit B.
15. which, if involuntary, is not stayed or dismissed within 90 days after the
commencement thereof
16. abandoned
17. thirty (30)
18. ten (10)
19. and such default in payment is not cured within ten (10) days after written
notice from Landlord
20. in accordance with law
21. after any applicable notice and cure period
22. Any such changes shall not materially adversely affect Tenant's use and
occupancy of, or access to, the demised premises .
23. In performing such work, Landlord shall use reasonable efforts to minimize
its interference with Tenant's permitted use of the demised premises.
23a. See Article 50.
23b. either party
23c. such party
24. Copies of any notice (not including invoices) to Tenant shall be sent in
like manner to Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Chrysler Center, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxx Xxxxxx, Esquire.
25. Throughout the Term,
25a. conditioned or
26. reasonably adopt and uniformly enforce with respect to telecommunications
tenants and that are not inconsistent with this lease and do not unreasonably
interfere with Tenant's use of the demised premises as permitted hereby.
Landlord agrees to act reasonably in its application of the Rules and
Regulations.
27. sixty (60)
28. unless Tenant supplies Landlord with a key therefor.
29. The foregoing shall not prohibit Tenant's marketing Meet-Me Room Services
(as hereinafter defined) to the other tenants in accordance with this lease.
30. good faith
-ii-
RIDER TO LEASE DATED AS OF APRIL 1, 2001 BETWEEN
WESTPORT COMMUNICATIONS LLC, AS LANDLORD, AND
FIBERNET TELECOM GROUP, INC., AS TENANT
If and to the extent that any of the provisions of this rider conflict or
are otherwise inconsistent with any of the printed provisions of this lease,
whether or not such inconsistency is expressly noted in this rider, the
provisions of this rider shall prevail.
37. Definitions
The following terms contained in this Article 37 shall have the meanings
hereinafter set forth as such terms are used throughout this lease, including
the exhibits, schedules and riders hereto (if any).
(A) "Base Tax Year" shall mean the tax fiscal year July 1, 2000 to June 30,
2001.
(B) "Base Year Taxes" shall mean the Real Estate Taxes as finally
determined for the Base Tax Year.
(C) "Subsequent Tax Year" shall mean any tax fiscal year commencing on or
after July 1, 2001.
(D) "Tenant's Proportionate Share" shall mean 1.88%. Landlord and Tenant,
each having made such investigation as they respectively deemed necessary,
acknowledge and agree that, for all purposes of this lease, the demised premises
shall be deemed to contain 15,800 rentable square feet, and the Building shall
be deemed to contain 840,000 rentable square feet. Tenant acknowledges that
Landlord is making no representation as to the accuracy of the foregoing square
footages.
(E) "Broker" shall mean Xxxxxxxx Real Estate Co. Inc.
(F) "Law" shall mean any law, rule, order, ordinance, regulation or
requirement of any governmental authority having or asserting jurisdiction or
any order, rule, requirement or regulation of any utility company, insurer of
Landlord or the Board of Fire Underwriters (or successor organization), whether
now or hereafter in effect, and all amendments thereto.
38. Rental Payments
(A) All payments other than Fixed Rent to be made by Tenant pursuant to
this lease shall be deemed additional rent and, in the event of any non-payment
thereof, Landlord shall have all rights and remedies provided for herein or by
law for non-payment of rent.
(B) All payments of Fixed Rent and additional rent (collectively, "rent" or
"rental") to be made by Tenant pursuant to this lease shall be made by checks
drawn upon a New York City bank that is a member of the New York Clearing House
Association or any successor thereto.
(C) Unless Landlord shall otherwise expressly agree in writing, acceptance
of Fixed Rent or additional rent from anyone other than Tenant shall not relieve
Tenant of any of its obligations under this lease, including the obligation to
pay Fixed Rent and additional rent, and Landlord shall have the right at any
time, upon notice to Tenant, to require Tenant to pay the Fixed Rent and
additional rent payable hereunder directly to Landlord. Furthermore, such
acceptance of Fixed Rent or additional rent shall not be deemed to constitute
Landlord's consent to an assignment of this lease or a subletting or other
occupancy of the demised premises by anyone other than Tenant, nor a waiver of
any of Landlord's rights or Tenant's obligations under this lease.
(D) Landlord's failure to timely xxxx all or any portion of any amount
payable pursuant to this lease for any period during the Term shall neither
constitute a waiver of Landlord's right to ultimately collect such amount or to
xxxx Tenant at any subsequent time retroactively for the entire amount so
unbilled, which previously unbilled amount shall be payable within thirty (30)
days after being so billed.
39. Tax Escalation
(A) For purposes of this lease, "Real Estate Taxes" shall mean all the real
estate taxes and assessments imposed upon the Building and the land upon which
it is located ("Land") (including specifically, but without limitation,
so-called "BID" taxes) by any governmental authority having jurisdiction, and/or
any tax or assessment hereafter imposed in whole or in part in substitution for
such real estate taxes and/or assessments.
(B) If the Real Estate Taxes for any Subsequent Tax Year during the Term
exceed the Base Year Taxes (as initially imposed, if not finally determined when
a payment is due pursuant
to this Section (B)), Tenant shall pay Landlord Tenant's Proportionate Share of
such excess within fifteen (15) days after Landlord shall furnish to Tenant a
statement (the "Tax Statement") setting forth the amount thereby due and payable
by Tenant. If Real Estate Taxes are payable by Landlord to the applicable taxing
authority in installments, then Landlord shall xxxx Tenant for Tenant's
Proportionate Share of increased Real Estate Taxes in corresponding
installments, such that Tenant's payment is due not more than fifteen (15) days
prior to the date when Landlord is obligated to pay the Real Estate Taxes to the
applicable taxing authority. If the actual amount of Real Estate Taxes is not
known to Landlord as of the date of Landlord's Tax Statement, then Landlord may
nevertheless xxxx Tenant for such installment on the basis of a good faith
estimate, in which event Tenant shall pay the amount so estimated within fifteen
(15) days after receipt of such xxxx, subject to prompt refund by Landlord, or
payment by Tenant, upon a supplemental billing by Landlord once the amount
actually owed by Tenant is determined. Upon Tenant's request, Landlord shall
provide Tenant with a copy of the current tax xxxx used in the preparation of
the Tax Statement.
(C) If the Base Year Taxes ultimately are reduced to less than the Real
Estate Taxes initially imposed upon the Land and the Building for the Base Tax
Year, Tenant shall pay Landlord, promptly upon demand, any additional amount
thereby payable pursuant to Section (B) for all applicable Subsequent Tax Years.
(D) If Landlord receives any refund of Real Estate Taxes for any Subsequent
Tax Year for which Tenant has made a payment pursuant hereto, Landlord shall
(after deducting from such refund all expenses incurred in connection therewith)
pay Tenant, if not in default hereunder, Tenant's Proportionate Share of the net
refund. Tenant shall pay Landlord Tenant's Proportionate Share of the costs and
expenses of any nature (including, without limitation, consulting, appraisal,
legal and accounting fees) incurred by Landlord in good faith in connection with
any tax protest or other proceeding or arrangement leading or intending to lead
to a reduction in Real Estate Taxes, whether before or after the initial
assessment thereof.
(E) If any Subsequent Tax Year is only partially within the Term, all
payments pursuant hereto shall be appropriately prorated, based on the portion
of the Subsequent Tax Year that is within the Term. Except as limited by
Articles 9 and 10: (1) Tenant's obligation to make the payments required by
Sections (B), (C) and (D) shall survive the Expiration Date or any sooner
termination of this lease; and (2) Landlord's obligation to make the payments
required by Section (D) shall survive the Expiration Date or any sooner
termination of this lease pursuant to Articles 9 and 10.
(F) Each Tax Statement given by Landlord pursuant to Section (B) shall be
binding upon Tenant unless, within thirty (30) days after its receipt of such
Tax Statement, Tenant notifies Landlord of its disagreement therewith,
specifying the portion thereof with which Tenant disagrees. Pending resolution
of such dispute, Tenant shall, without prejudice to its rights, pay all amounts
determined by Landlord to be due, subject to prompt refund by Landlord (without
interest) upon any contrary determination.
40. Mortgagee Consent; Non-Disturbance
(A) This lease is conditioned upon the consent hereto by The Bank of New
York ("BNY"), the holder of the existing mortgage on the Land and Building. If
Landlord has not received the consent (the "Consent") to this lease from BNY
within forty-five (45) days after the execution and exchange of this lease
(which Consent Landlord shall seek with good faith and diligence), then this
lease shall be void and of no effect and neither party shall have any further
rights or obligations pursuant hereto, except with respect to Article 45 hereof.
Landlord will also use diligent, good faith efforts to obtain for Tenant's
benefit an agreement (an "NDA") in BNY's standard form (annexed hereto as
Exhibit C) to the effect that, in the event of any foreclosure of such mortgage,
BNY will not make Tenant a party defendant to such foreclosure (unless required
by applicable law, in which event Tenant would receive equivalent protection)
nor disturb its possession under this lease, provided Tenant shall not be in
default hereunder beyond any applicable notice and cure period. If Tenant has
not received an NDA from BNY within forty-five (45) days after the execution and
exchange of this lease, then Tenant shall have the right to terminate this lease
by notice to Landlord delivered within fifteen (15) days after the expiration of
such forty-five (45) day period, time being of the essence (but not after the
issuance of such NDA). If Tenant gives such notice, then this lease shall
immediately terminate and expire and be of no further force and effect and
neither party shall have any further rights or obligations pursuant hereto,
except with respect to Article 45 hereof.
(B) Landlord represents that BNY is the only Mortgagee (as defined in
Article 49).
(C) Landlord represents that there are no superior leasehold interests
except for those
held by Xxxxxx Telegraph Associates, L.P., with respect to which Tenant and
Xxxxxx Telegraph Associates, L.P. are executing and delivering a NDA
simultaneously herewith. See Section 77(C).
(D) Any subordination of this lease to any future mortgage shall be
conditioned upon Landlord's obtaining for Tenant's benefit an NDA from the
Mortgagee thereunder, in the Mortgagee's then standard form, with such changes
thereto as may reasonably be proposed by Tenant and that are reasonably
acceptable to the Mortgagee.
(E) Tenant agrees promptly to execute and deliver each NDA when presented
to it, and failure by Tenant to do so shall constitute Tenant's waiver, as the
case may be, of (i) its right to terminate this lease, in the case of the NDA
from BNY, or (ii) the condition set forth in Section (D), in the case of an NDA
from another Mortgagee.
41. Fixed Rent
The Fixed Rent (which includes an annual cumulative two and one-half
(2-1/2%) percent increase intended to reimburse Landlord for anticipated
increases in Building operating expenses in lieu of operating expense, porters'
wage and/or utility expense escalation) shall be as follows:
Period Fixed Rent (per annum)
------- ----------------------
Year 1 $1,027,000.00
Year 2 $4,202,675.00
Year 3 $4,307,742.00
Year 4 $4,415,435.00
Year 5 $4,525,821.00
Year 6 $4,638,967.00
Year 7 $4,754,941.00
Year 8 $4,873,815.00
Year 9 $4,995,660.00
Year 10 $5,120,551.00
Year 11 $5,248,565.00
Year 12 $5,379,779.00
Year 13 $5,514,274.00
Year 14 $5,652,131.00
Year 15 $5,793,434.00
As used in the above table (and elsewhere in this lease), "Year 1" is the
period beginning on the Commencement Date and ending on the last day of the
month in which occurs the first anniversary of the Commencement Date (or, if the
Commencement Date is the first day of a calendar month, ending on the day
immediately preceding the first anniversary of the Commencement Date). Each Year
following Year 1 is the one-year period (or such lesser period ending on the
expiration or earlier termination of the Term) beginning on the day after the
expiration of the previous Year. (This definition of the word "Year" only
applies when the word "Year" is capitalized.)
42. Electricity
(A) Landlord shall furnish for Tenant's use in the demised premises, at a
location designated by Landlord, up to fifteen (15) xxxxx of electric current
(at 120/208 volts) per rentable square foot upon and subject to the terms and
conditions set forth in this Article. In bringing such current from such
designated location to the premises, Tenant shall use only such electrical
contractors as are then on the approved list for the Building. Any additional
current required by Tenant shall be provided by Landlord, if available, at a
cost of $250.00 per amp (for 120/208 volt service) if provided during the twelve
(12) month period after the date hereof, and, if later provided, at Landlord's
then standard charge. Electrical service shall be sized for Tenant's estimated
ultimate demand as shown on its approved plans (although Landlord's approval of
such aspect of Tenant's plans shall not constitute any agreement on Landlord's
part to maintain the availability of such capacity for Tenant's future use) and
shall, initially, be downsized via a
fuse on the Building side of the service. Tenant shall be charged for additional
current capacity as the fuse size is changed at Tenant's request to increase the
electric capacity. If at any time during the Term, whether before or after
Tenant's capacity is increased or decreased, Landlord reasonably determines that
Tenant is not using any portion of the electric capacity then servicing the
demised premises, then Landlord shall have the right, after not less than thirty
(30) days notice to Tenant, to recapture any such capacity not then being used
by Tenant without compensation to Tenant; provided, however, that if within the
thirty (30) day period following delivery of such notice Tenant presents
Landlord's electrical consultant ("Landlord's Electrical Consultant") with
evidence reasonably acceptable to Landlord's Electrical Consultant that Tenant
will actually be using on a sustained basis all or a part of the capacity
intended to be recaptured by Landlord within thirty (30) days thereafter, which
evidence shall be supported by a memorandum prepared and signed by Tenant's
reputable independent electrical engineer or qualified consultant ("Tenant's
Electrical Consultant"), then Landlord will not recapture that portion (or all)
of the capacity intended to be recaptured by Landlord that Landlord reasonably
determines that Tenant has so proven it will be using. If Landlord so recaptures
any capacity and, at a later date, Tenant requires additional capacity, Landlord
shall use all reasonable efforts to provide the same and Tenant will not be
required to pay the per amp charge referred to above for such part of the
additional capacity as had been recaptured. Tenant's consumption of electrical
energy at the demised premises shall be measured by submeters to be installed
and maintained by Landlord at Tenant's expense.
(B) From and after the Commencement Date, Tenant shall purchase all
electric current consumed in or in connection with the demised premises from
Landlord or Landlord's designated agent and shall pay therefor an amount equal
to 110% of Landlord's Average Cost (as hereinafter defined) applied to the total
kilowatt-hours (or other appropriate unit of measurement of electricity)
consumed in the premises during the applicable billing period, based on readings
from time to time of the submeter(s) measuring Tenant's consumption of
electricity in the premises, which submeter(s) shall be installed and maintained
as above provided. "Landlord's Average Cost" for all purposes of this lease
shall be determined by dividing (y) the total dollar amount billed to the owner
of the Building for the Building by the utility company providing electric
current to the Building for the relevant billing period (the "Electric
Company")(including, without limitation, all charges for "demand," fuel,
"on-peak" and "off-peak" usage, "time of day" usage, energy supply and energy
delivery, taxes and all other relevant adjustments and charges) by (z) the total
kilowatt hours (or other appropriate unit of measurement) consumed by the
Building for such billing period.
(C) Where more than one submeter measures Tenant's consumption of
electricity, the service rendered through each submeter may be computed and
billed separately in accordance with the provisions hereof. Bills therefor shall
be rendered at such times as Landlord may elect and shall be payable within
thirty (30) days after a xxxx therefor is rendered to Tenant as additional rent.
If such bills are not paid within sixty (60) days after a xxxx therefor is
rendered to Tenant, Landlord may, upon ten (10) days additional notice to
Tenant, discontinue the service of electric current to the demised premises
without releasing Tenant from any liability under this lease and without
Landlord's agent incurring any liability for any damage or loss sustained by
Tenant by such discontinuance of service.
(D) Landlord shall not in any way be liable or responsible to Tenant for
any loss, damage or expense that Tenant may sustain or incur if either the
quantity or character of electric service is changed or is no longer available
or suitable for Tenant's requirements, unless resulting from Landlord's failure
to pay any amounts due to the Electric Company or otherwise to comply with the
rules, regulations or tariffs applicable to such service. Tenant's use of
electric current shall never exceed the capacity of existing feeders or risers
to, or wiring installations in, the Building and the demised premises (which
capacity shall be at least 15 xxxxx (at 120/208 volts) per rentable square foot,
as increased by any requested and furnished increase in capacity and as reduced
by any recapture of electric capacity permitted pursuant to Section (A)). Any
riser or risers to supply Tenant's electrical requirements will, upon written
request of Tenant, be installed by Landlord at the sole cost and expense of
Tenant if, in Landlord's reasonable judgment, the same are necessary and will
not cause adverse damage or injury to the Building or the operation thereof or
the demised premises, cause or create a dangerous or hazardous condition, entail
excessive or unreasonable alterations, repairs or expense or interfere with or
disturb other tenants or occupants. In addition to the installation of such
riser or risers, Landlord will also, at the sole cost and expense of Tenant,
install all other equipment proper and necessary in connection therewith,
subject to the aforesaid terms and conditions. All of such costs and expense
shall be paid by Tenant to Landlord within fifteen (15) days after rendition of
any xxxx or statement to Tenant therefor.
(E) Landlord may discontinue such service of electric current upon one
hundred twenty (or such lesser period as may be required by Law or by the
Electric Company) days notice to Tenant without being liable to Tenant therefor
or without in any way affecting this lease or the liability of Tenant hereunder
or causing a diminution of Fixed Rent. Such discontinuance shall not be deemed
to be a lessening or diminution of service within the meaning of any law, rule
or regulation now or hereafter enacted, promulgated or issued. In the event
Landlord gives such notice of discontinuance, Landlord shall permit Tenant to
receive such service direct from the Electric Company, in which event Tenant
shall, at its own cost and expense, furnish and install all risers, service
wiring, switches and other equipment necessary for such installation and
required by the Electric Company and, at its own cost and expense, maintain and
keep in good repair all such risers, wiring, switches and equipment. Provided
that Tenant proceeds promptly and diligently after receipt of Landlord's notice
to arrange to obtain electric current directly from the Electric Company,
Landlord may not discontinue electric service until Tenant is able to obtain
service directly from the Electric Company (unless Landlord is compelled to do
so by Law or the Electric Company).
(F) Tenant shall make no alterations or additions to the electric equipment
and/or appliances presently installed in the demised premises without the prior
written consent of Landlord in each instance, which consent will not be
unreasonably withheld. However, Tenant shall have the right to replace or
install typical Meet-Me Room (as hereinafter defined) or other
telecommunications equipment in the demised premises without obtaining
Landlord's consent, if such equipment does not cause Tenant's usage of electric
current in the demised premises to exceed the capacity for which Tenant's
service is then fused. Rigid conduit only will be allowed.
(G) If any tax is imposed upon Landlord's receipt from the sale or resale
of electric energy to Tenant by any federal, state or municipal authority, where
permitted by law, Tenant's pro-rata share of such taxes shall be paid by Tenant
to Landlord.
(H) Anything in Section (B) to the contrary notwithstanding, if the
Commencement Date shall occur prior to the installation and proper calibration
of the submeters, then (i) Tenant shall pay Landlord for Tenant's consumption of
electricity in the demised premises at the rate of $1,975.00 per month during
the period commencing on the Commencement Date and ending on the day prior to
the day on which Tenant commences business operations in all or any part of the
premises; and (ii) from and after the date on which Tenant commences business
operations in all or a portion of the demised premises and until the
installation and proper calibration of the submeters, Tenant shall pay Landlord
$7,900.00 per month on account, such payments to be retroactively adjusted based
on the average kilowatt hours (or other appropriate unit of measurement)
consumed by Tenant over the first three (3) months after installation and proper
calibration of the submeters. In addition, if during any time during the Term,
it shall be determined that the submeters servicing the demised premises were
malfunctioning, or if Tenant's capacity is increased prior to the installation
and proper calibration of any required additional meters, Tenant shall pay
Landlord an amount reasonably estimated by Landlord's Electrical Consultant to
be the amount that would have been payable by Tenant had such malfunction not
occurred or had the additional capacity been properly metered, as the case may
be.
(I) Landlord will advise Tenant (which need not be in writing and may be
given to a responsible person located at the premises) at least one (1) week (or
such shorter period as may be practicable under the circumstances) in advance of
any scheduled non-emergency shut-down of electric power to the demised premises
initiated by Landlord. Landlord will use reasonable efforts to notify Tenant
reasonably in advance of any other shut-down of power and to cooperate with
Tenant to arrange for alternative sources of power during the shut-down period.
(J) Anything in this Article to the contrary notwithstanding, if Tenant
disputes any determination made by Landlord or Landlord's Electrical Consultant
under Section (A) or Section (H) of this Article (including, without limitation,
a determination as to whether Landlord is permitted under the standards set
forth in Section (A) to recapture any of Tenant's electrical capacity), Tenant
may challenge such determination (but not any prior determination of Landlord or
Landlord's Electrical Consultant), within fifteen (15) days after receipt
thereof (time being of the essence), by submitting a different determination or
calculation made by Tenant's Electrical Consultant, who shall be paid by Tenant.
If Landlord's Electrical Consultant and Tenant's Electrical Consultant agree on
a determination, such agreement shall be conclusive upon the parties. If
Landlord's Electrical Consultant and Tenant's Electrical Consultant cannot
agree, they shall select a third reputable independent electrical engineer or
qualified consultant, to be paid equally by both parties, to make a binding
determination with respect to such dispute. If Landlord's Electrical Consultant
and Tenant's Electrical Consultant cannot select a third electrical engineer or
consultant, the same shall be selected by the Presiding Judge of the
Appellate Division of the Supreme Court of the State of New York, First
Department. No delay in the resolution of any such dispute shall affect the
effective date of any such determination.
43. Restrictions on Use
(A) Anything in Article 2 to the contrary notwithstanding, Tenant shall not
use or permit all or any part of the demised premises to be used for the: (1)
storage for purpose of sale of any alcoholic beverage in the demised premises;
(2) storage for retail sale of any product or material in the demised premises,
specifically excluding, however, the retail sale of telecommunications services;
(3) conduct of a manufacturing or printing business; (4) rendition of any health
or related services, conduct of a school or conduct of any business that results
in the presence of the general public in the demised premises; (5) conduct of
the business of an employment agency or executive search firm; (6) conduct of
any public auction, gathering, meeting or exhibition; (7) conduct of a stock
brokerage office or business; or (8) occupancy of a foreign, United States,
state, municipal or other governmental or quasi-governmental body, agency or
department or any authority or other entity that is affiliated therewith or
controlled thereby.
(B) Tenant shall not use or permit all or any part of the demised premises
to be used in any manner that is inconsistent with the character of the Building
or so as to impose any material additional burden upon Landlord in its
operation.
(C) Tenant shall not obtain or accept for use in the demised premises
towel, barbering, boot blacking, floor polishing, lighting maintenance, cleaning
or other similar services from any party not theretofore approved by Landlord
(which party's charges shall not be excessive) and Landlord will not
unreasonably withhold such approval. Such services shall be furnished only at
such hours, in such places within the demised premises and pursuant to such
regulations as Landlord prescribes.
44. Assignment, Etc.
Supplementing Article 11:
(A) Tenant shall neither: (i) publicly advertise the availability of all or
any part of the demised premises at a rental rate less than the rental rate at
which Landlord is then offering to lease comparable space in the Building; or
(ii) assign this lease to or sublet to or permit the occupancy of all or any
part of the demised premises by any other party that is then a tenant,
subtenant, licensee or occupant of any space in the Building or that has
negotiated with Landlord for space in the Building within the twelve (12) month
period preceding the date of Landlord's receipt of Tenant's Notice pursuant to
Section (B) (nor shall Tenant accept an assignment of a lease or sublet space
from any tenant, subtenant, licensee or occupant of any space in the Building).
(B) A transfer of more than a fifty (50%) percent beneficial interest in
Tenant (not including a transfer of publicly traded interests), whether such
transfer occurs at one time, or in a series of related transactions, and whether
of stock, partnership interest or otherwise, by any party in interest shall be
deemed an assignment of this lease (subject, however, to Section (N) hereof). If
Tenant wishes to assign this lease, sublet all or any part of the demised
premises or permit the demised premises to be occupied by any other party,
Tenant shall first notify Landlord ("Tenant's Notice"), specifying the name of
the proposed assignee, subtenant or occupant, the name of and character of its
business, its proposed use of the premises, the terms of the proposed
assignment, sublease or occupancy (including, without limitation, the
commencement and expiration dates thereof) and current information as to the
financial responsibility and standing of the proposed assignee, sublessee or
occupant and shall provide Landlord with such other information as it reasonably
requests. If only a portion of the demised premises is to be so sublet or
occupied, Tenant's Notice shall be accompanied by a reasonably accurate floor
plan, indicating such portion. The portion of the demised premises to which such
proposed assignment, sublease or occupancy is to be applicable is hereinafter
referred to as the "Space."
(C) Landlord may, within thirty (30) days after its receipt of Tenant's
Notice, by notice to Tenant ("Landlord's Notice"), require that (i) Tenant
sublease the Space to Landlord or its nominee, on the terms set forth in Section
(D), or (ii) this lease be terminated as to the Space for the period specified
in Tenant's Notice, on the terms set forth in Section (E). If Tenant's proposed
assignment or sublease is for more than fifty percent (50%) of the demised
premises, Landlord also may, by Landlord's Notice, terminate this lease as of
the proposed commencement date for such assignment, sublease or occupancy. If
Landlord fails to exercise such option, it shall not unreasonably withhold its
consent to the proposed assignment, sublease or occupancy (provided that the
proposed use of the premises by the proposed assignee, subtenant or occupant
complies with the terms of this lease, including, without limitation, Articles
2, 43 and 66 hereof), but such consent shall be deemed of no effect if such
assignment, sublease or occupancy is not consummated upon the terms set forth in
Tenant's Notice and within sixty (60) days after such consent is given.
(D) If Landlord requires that Tenant execute a sublease ("Sublease")
pursuant to Section (C)(i), the Sublease shall be upon the same terms as this
lease, except for such terms thereof as are inapplicable and except that: (i)
the term of the Sublease shall be the term specified in Tenant's Notice
commencing, at Landlord's option, on (a) the commencement date set forth in
Tenant's Notice, or (b) a date designated by Landlord which shall not be more
than thirty (30) days after the date of Landlord's Notice; (ii) the Fixed Rent
for the Sublease shall be the lesser of (a) the pro rata Fixed Rent for the
Space Tenant is then paying Landlord hereunder, or (b) the Fixed Rent set forth
in Tenant's Notice; (iii) Tenant's Proportionate Share for the Sublease shall be
determined based on the relative sizes of the Space and the initial demised
premises; (iv) the subtenant under the Sublease shall have the unrestricted
right to assign the Sublease or any interest therein, to further sublet all or
any part of the Space and/or to make any alterations, decorations, additions or
improvements in and to the Space (all or any part of which may be removed, at
Landlord's option, at any time, provided Landlord repairs all damage caused by
such removal); (v) Tenant, as sublandlord under the Sublease, shall, at its
expense: (a) erect all partitions required to separate the Space from the
remainder of the demised premises and install a separate submeter to measure the
consumption of electricity in the Space (or, in the alternative, the parties
shall agree on an equitable method to allocate electricity charges between the
Space and the balance of the premises) and (b) to the extent necessitated by the
Sublease, install all doors required for independent access from the Space to
the elevators, lavatories and staircases on the floor and install all equipment
and facilities (including, without limitation, men's and women's toilets)
required to comply with all applicable Laws and to enable Landlord to maintain
and service the Space and permit the Space to be used as an independent unit;
(vi) the Sublease shall provide that the termination of all or any portion of
this lease by merger is not thereby intended; and (vii) at the expiration of the
Sublease, the Space shall, subject to clause (iv), be returned to Tenant as then
existing.
(E) If Landlord requires that this lease be terminated as to the Space
pursuant to Section (C)(ii), then Landlord and Tenant shall execute and deliver
a supplementary agreement modifying this lease by eliminating the Space from the
demised premises for the term specified in Tenant's Notice commencing, at
Landlord's option, on (a) the commencement date set forth in Tenant's Notice, or
(b) a date designated by Landlord which shall not be more than thirty (30) days
after the date of Landlord's Notice, and, for such period, reducing the Fixed
Rent and additional rent payable hereunder on a pro rata basis, and otherwise
consistent with the provisions of Section (D) above.
(F) Anything herein to the contrary notwithstanding, Tenant may not assign
this lease or sublet all or any part of the demised premises (except pursuant to
Section (N)) prior to the expiration of the first year of the Term.
(G) No assignment of this lease shall be effective unless and until Tenant
delivers to Landlord duplicate originals of the instrument of assignment
(wherein the assignee assumes the performance of Tenant's obligations under this
lease) and any accompanying documents.
(H) In the event of any such assignment, Landlord and the assignee may
modify this lease in any manner, without notice to Tenant or Tenant's prior
consent, without thereby terminating Tenant's liability for the performance of
its obligations under this lease, except that any such modification which, in
any way, increases any of such obligations shall not, to the extent of such
increase only, be binding upon Tenant.
(I) No sublease of all or any part of the demised premises (except a
Sublease) shall be effective unless and until Tenant delivers to Landlord
duplicate originals of the instrument of sublease (containing the provision
required by Section (J)) and any accompanying documents. Any such sublease shall
be subject and subordinate to this lease.
(J) Any such sublease shall contain substantially the following provisions:
(1) "In the event of a default under any underlying lease of all or
any portion of the premises demised hereby that results in the termination of
such lease, the subtenant hereunder shall, at the option of the lessor under any
such lease ("Underlying Lessor"), attorn to and recognize the Underlying Lessor
as landlord hereunder and shall, promptly upon the Underlying Lessor's request,
execute and deliver all instruments necessary or appropriate to confirm such
attornment and recognition. Notwithstanding such attornment and recognition, the
Underlying Lessor shall not (a) be liable for any previous act or omission of
the landlord under
this sublease, (b) be subject to any offset, not expressly provided for in this
sublease, that shall have accrued to the subtenant hereunder against said
landlord, or (c) be bound by any modification of this sublease or by any
prepayment of more than one month's rent, unless such modification or prepayment
shall have been previously approved in writing by the Underlying Lessor. The
subtenant hereunder hereby waives all rights under any present or future law to
elect, by reason of the termination of such underlying lease, to terminate this
sublease or surrender possession of the premises demised hereby.
(2) This sublease may not be assigned or the premises demised
hereunder further sublet, in whole or in part, except as set forth in such
underlying lease."
(K) No assignment or sublease, whether or not consented to by Landlord and
whether or not any such consent is required, shall release Tenant from its
liability for the performance of Tenant's obligations hereunder during the
balance of the Term. Landlord's consent to any assignment or sublease shall not
constitute its consent to any (i) further assignment of this lease or of any
permitted sublease or (ii) further sublease of all or any portion of the
premises demised hereunder or under any permitted sublease. If a sublease to
which Landlord has consented is assigned or all or any portion of the premises
demised thereunder is sublet without the consent of Landlord in each instance
obtained, Tenant shall immediately terminate such sublease, or arrange for the
termination thereof, and proceed expeditiously to have the occupant thereunder
dispossessed.
(L) Tenant shall pay to Landlord, promptly upon demand therefor, all costs
and expenses (including, without limitation, reasonable attorneys' fees and
disbursements) incurred by Landlord in connection with any assignment of this
lease or sublease of all or any part of the demised premises.
(M) If Landlord shall give its consent to any assignment of this lease or
to any sublease or if Tenant shall otherwise enter into any assignment or
sublease permitted hereunder, Tenant shall in consideration therefor, pay to
Landlord, as and when payable to Tenant:
(1) in the case of an assignment, fifty (50%) percent of the amount,
if any, by which (a) all sums and other considerations paid to Tenant by the
assignee for or by reason of such assignment (including, but not limited to,
sums paid for the sale of Tenant's fixtures, leasehold improvements, equipment,
furniture, furnishings or other personal property less the then fair market
value thereof) exceeds (b) the amount of any rental concessions and work
allowance granted by Tenant or costs incurred by Tenant in preparing the demised
premises for the assignee's occupancy, plus all reasonable and customary
out-of-pocket expenses reasonably incurred by Tenant directly relating to such
assignment, such as the New York State and City Transfer Taxes (but not income
taxes), brokerage commissions, engineering, advertising and promotion expenses
and legal fees; and
(2) in the case of a sublease, fifty (50%) percent of the amount, if
any, by which (a) any rents, additional charges or other consideration payable
under the sublease to Tenant by the subtenant (including, but not limited to,
sums paid for the sale or rental of Tenant's fixtures, leasehold improvements,
equipment, furniture or other personal property, less, in the case of a sale
thereof, the then fair market value thereof) exceeds (b) the sum of (x) the
Fixed Rent and additional rent accruing during the term of the sublease in
respect of the Space (at the rate per square foot payable by Tenant hereunder)
pursuant to the terms of this lease and (y) the amount of any rental concessions
and work allowance granted by Tenant or costs incurred by Tenant in physically
separating the Space from the rest of the demised premises or otherwise in
preparing the Space for the subtenant's occupancy, plus all reasonable and
customary out-of-pocket expenses reasonably incurred by Tenant directly relating
to such subletting, such as the New York State and City Transfer Taxes (but not
income taxes), brokerage commissions, engineering, advertising and promotion
expenses and legal fees, all as amortized (without interest) over the term of
such sublease.
(N) Anything in Article 11 or this Article to the contrary notwithstanding,
but subject to all applicable provisions of this lease (including, without
limitation, Articles 0, 00 xxx 00 xxx Xxxxxxxx (X), (X), (X), (X), (X) and (L)
of this Article, but not including Sections (A), (B), (C), (D), (E), (F) or (M)
of this Article), Landlord's consent shall not be required to (w) any sublease
or assignment to, or occupancy by, any party controlling, controlled by or under
common control with Tenant ("control" and its variants meaning ownership of more
than fifty (50%) percent of the equity interests in the party in question); (x)
Tenant's assignment of this lease to any purchaser of all or substantially all
of Tenant's assets; (y) an acquisition of more than a fifty (50%) percent
interest in Tenant's stock or partnership or other equity interests; or (z) an
assignment of this lease to any entity that is a successor to Tenant either by
merger or consolidation: provided, however, in the case of a transaction
described in clause (x), (y) or (z),
that the net worth of the entity constituting Tenant after the consummation of
the transaction in question is not less than that of Tenant immediately prior
thereto. Tenant shall provide to Landlord copies of all documentation relevant
to the transaction in question within ten (10) days after the effective date
thereof.
(O) Landlord acknowledges that the business to be conducted by Tenant in
the demised premises requires the installation of certain communications
equipment owned by customers of Tenant in the demised premises, in order for
such customers to interconnect with Tenant's terminal facilities. Any such
arrangement shall not be subject to the terms of Article 11 or this Article, but
shall be subject to the terms and provisions of Article 66.
45. Brokerage
Each party represents that it dealt only with the Broker as broker in
connection with this lease. Landlord shall pay the Broker a commission therefor
pursuant to a separate agreement. Tenant shall indemnify Landlord against all
loss, damage, liability, cost and expense (including reasonable attorney's fees)
pertaining to any other brokerage commission or like compensation based on
alleged actions of Tenant or its agents or representatives. Landlord shall
indemnify Tenant against all loss, damage, liability, cost and expense
(including reasonable attorney's fees) pertaining to any such claim based on
alleged actions of Landlord or its agents or representatives. The parties'
liability hereunder shall survive any expiration or termination of this lease.
46. Building Directory
(A) Landlord shall, upon Tenant's request, list on the Building's directory
("Directory"), the names of Tenant, any other party occupying any part of the
demised premises pursuant hereto and their officers or employees, provided the
number of Directory lines so provided by Landlord does not exceed Tenant's
Proportionate Share of the Directory's capacity.
(B) The listing of any party's name other than Tenant's shall neither grant
such party any right or interest in this lease and/or the demised premises nor
constitute Landlord's consent to any assignment or sublease to or occupancy by
such party. Such listing may be terminated by Landlord at any time, without
prior notice. The initial listing(s) on the Directory shall be provided by
Landlord without charge to Tenant. Thereafter, Tenant shall pay Landlord's
standard fee for any work performed in connection with any additions, deletions
or changes to the Directory.
47. Exculpatory Clause
(A) Anything herein to the contrary notwithstanding, the liability of
Landlord and the partners of, or any other party that holds any interest in,
Landlord for negligence, failure to perform lease obligations or otherwise under
or in connection with this lease shall be limited to each of their respective
interests in the Land and Building and the net proceeds of the sale thereof or
any insurance proceeds or condemnation awards actually received by Landlord and
not applied toward restoration of the Building (subordinate to the rights of
mortgagees unaffiliated with Landlord). Tenant shall neither seek to enforce nor
enforce any judgment or other remedy against any other asset of Landlord, any
partner of Landlord or any party that holds any interest in Landlord.
(B) In any claim made by Tenant against Landlord alleging that Landlord has
acted unreasonably where Landlord had an obligation to act reasonably, Tenant
shall have no right to recover damages from Landlord and Tenant's sole and
exclusive recourse against Landlord shall be an action seeking specific
performance of Landlord's obligation to act reasonably.
48. Submission to Jurisdiction, Etc.
(A) This lease shall be deemed to have been made in New York County, New
York, and shall be construed in accordance with the laws of the State of New
York. All actions or proceedings relating, directly or indirectly, to this lease
shall be litigated only in courts located within the County of New York. Tenant,
any guarantor of the performance of its obligations hereunder ("Guarantor") and
their respective successors and assigns hereby subject themselves to the
jurisdiction of any state or federal court located within such county, waive the
personal service of any process upon them in any action or proceeding therein
and consent that such process may be served by certified or registered mail,
return receipt requested, directed to Tenant and any successor at Tenant's
address hereinabove set forth, to Guarantor and any successor at the address set
forth in the instrument of guaranty and to any assignee at the address set forth
in the instrument of assignment. Such service shall be deemed made two days
after such process is so mailed.
(B) If any legal proceeding is brought by one party against the other
regarding this lease, the prevailing party shall be reimbursed for its
reasonable attorney's fees with respect thereto by the other party.
(C) If any monies owing by Tenant under this lease are paid more than
fifteen (15) days after the date such monies are payable pursuant to the
provisions of this lease, Tenant shall pay Landlord interest thereon, at the
rate (the "Lease Rate") of two (2%) percent per annum over the so called "prime"
or "base" interest rate of Citibank N.A. from time to time in effect, for the
period from the date such monies were payable to the date such monies are paid.
(D) The submission of this lease to Tenant shall not constitute an offer by
Landlord to execute and exchange a lease with Tenant and is made subject to
Landlord's acceptance, execution and delivery thereof.
49. Requests by Mortgagee or Others
(A) If any present or prospective mortgagee of the Land, Building or any
leasehold interest therein (a "Mortgagee") requires, as a condition precedent to
issuing or extending its loan, the modification of this lease in such manner as
does not materially lessen Tenant's rights or increase its obligations
hereunder, Tenant shall not delay or withhold its consent to such modification
and shall execute and deliver such confirming documents therefor as such
Mortgagee requires.
(B) If Landlord, in conjunction with any proposed sale or mortgaging of all
or any portion of the Land and Building or any leasehold interest therein,
requests the delivery of certified financial statements or other information
relating to the financial condition of Tenant, Tenant shall deliver such
certified financial statements or such other information within ten (10) days
after Landlord's written request therefor.
50. Delivery of Demised Premises
Supplementing Article 21, the demised premises shall be leased to Tenant in
their "as is" condition as of the date hereof and Landlord shall not be required
to perform any work to prepare the demised premises for Tenant's occupancy,
except for the work described in Exhibit D ("Landlord's Work"). Landlord will
deliver possession of the demised premises to Tenant on the date of the
execution and exchange of this lease (but the Commencement Date shall be as set
forth on page 1 of the printed form regardless of when this lease is executed
and exchanged). Landlord will commence Landlord's Work promptly after execution
and exchange of this lease and will diligently prosecute the same to completion.
Completion of Landlord's Work is not a condition precedent to the occurrence of
the Commencement Date or Tenant's acceptance of delivery of the demised
premises. Tenant agrees to pay, as additional rent, one-half (1/2) of Landlord's
reasonable out-of-pocket cost of Landlord's Work within thirty (30) days after
being billed therefor. The taking of possession of the demised premises by
Tenant shall be conclusive evidence as against Tenant that, at the time such
possession was so taken, the demised premises and the Building were in good and
satisfactory condition, subject to completion of Landlord's Work, and subject
also to latent defects and to the provisions of Section 63(B).
51. Insurance
(A) During the Term, Tenant shall pay for and keep in force general
liability policies in standard form protecting against all liability occasioned
by accident or occurrence, subject to customary exclusions, and containing only
such "deductibles" as Landlord reasonably approves, such policies to be written
by recognized and well-rated insurance companies licensed to transact business
in the State of New York, authorized to issue such policies, and reasonably
approved by Landlord. The minimum limits of liability shall be a combined single
limit with respect to each occurrence in an amount of not less than $3,000,000
for injury (or death) and damage to property. If at any time during the Term it
appears that public liability or property damage limits in the City of New York
for buildings similarly situated, due regard being given to the use and
occupancy thereof, are higher than the foregoing limits, then Tenant shall
increase the foregoing limits accordingly. Landlord (and each member thereof in
the event Landlord is a partnership, joint venture or other entity) and
Landlord's managing agent (Landlord's current managing agent is Xxxxxxxx Real
Estate Co. Inc.) shall be named as additional insured in the aforesaid insurance
policies. Tenant shall also secure and keep in force "all risk" property
insurance, including loss by fire and, by means of the standard extended
coverage endorsement, loss or damage by such other casualties as may be covered
thereby, covering all of its personal property, equipment, trade fixtures,
goods, merchandise, furniture, furnishings and other items removable by Tenant
located in the premises for the full replacement value thereof from time to
time. All such policies shall provide that Landlord shall be afforded not less
than thirty (30) days' prior notice of
cancellation of said insurance. Tenant shall deliver Xxxxx 27 certificates of
insurance evidencing such policies, or certified copies or duplicate originals
of the policies and reasonably satisfactory evidence of payment of premiums, if
requested by Landlord. All premiums and charges for the aforesaid insurance
shall be paid by Tenant. If Tenant shall fail to maintain any such required
insurance, or to pay the premiums therefor when due, Landlord may obtain such
insurance or make such payment and the cost thereof to Landlord shall be repaid
to Landlord by Tenant on demand as additional rent. Tenant shall not violate or
permit to be violated any condition of any of said policies and Tenant shall
perform and satisfy the requirements of the companies writing such policies.
(B) Landlord will, or will cause its affiliate to, maintain such insurance
as may be required by the first Mortgagee or, if there is no first Mortgagee, as
would be maintained by a prudent owner of like property.
52. Bankruptcy
Without limiting any of the provisions of Articles 16, 17 or 18 hereof, if,
pursuant to Chapter 11 of Title 11, United States Code (the Bankruptcy Code), as
the same may be amended, Tenant is permitted to assign this lease in disregard
of the obligations contained in Articles 11 and 44 hereof, Tenant agrees that
adequate assurance of future performance by the assignee permitted under such
Code shall mean the deposit of cash security with Landlord in an amount equal to
the sum of one year's Fixed Rent then reserved hereunder plus an amount equal to
all additional rent payable under this lease for the calendar year preceding the
year in which such assignment is intended to become effective, which deposit
shall be held by Landlord, without interest, for the balance of the Term as
security for the full and faithful performance of all of the obligations under
this lease on the part of Tenant yet to be performed. If Tenant receives or is
to receive any valuable consideration for such an assignment of this lease, such
consideration, after deducting therefrom (A) the brokerage commissions, if any,
and other expenses reasonably incurred by Tenant for such assignment and (B) any
portion of such consideration reasonably designated by the assignee as paid for
the purchase of Tenant's property in the demised premises, shall be and become
the sole and exclusive property of Landlord and shall be paid over to Landlord
directly by such assignee. In addition, adequate assurance shall mean that any
such assignee of this lease shall have a net worth, exclusive of good will,
equal to at least fifteen (15) times the aggregate of the Fixed Rent reserved
hereunder plus all additional rent for the preceding calendar year as aforesaid.
53. Local Law 5/Required Alterations
Supplementing Article 6:
(A) All work performed or installations made by Tenant (or by Landlord at
Tenant's request and expense) in and to the demised premises shall be done in a
fashion such that the demised premises and the Building shall be in compliance
with the requirements of Local Law 5 of 1973 of The City of New York, as
heretofore and hereafter amended ("Local Law 5"). The foregoing shall include,
without limitation, (i) compliance with the compartmentalization requirements of
Local Law 5, (ii) relocation of existing fire detection devices, alarm signals
and/or communication devices necessitated by the alteration of the demised
premises, and (iii) installation of such additional fire control or detection
devices as may be required by Law as a result of Tenant's manner of use of the
demised premises. In addition, Tenant shall cause the demised premises to be
connected to the Building "Class E" system and arrange to have the demised
premises and Tenant added to the "Class E" computer.
(B) Except to the extent caused by the negligence or wilful misconduct of
Landlord or its agents or employees, Landlord shall not be responsible for any
damage to Tenant's fire control or detection devices nor shall Landlord have any
responsibility for the maintenance or replacement thereof. Tenant shall
indemnify Landlord from and against all loss, damage, cost, liability or expense
(including, without limitation, reasonable attorneys' fees and disbursements)
suffered or incurred by Landlord by reason of the installation and/or operation
of any such devices.
(C) All work and installations required to be undertaken by Tenant pursuant
to this Article shall be performed at Tenant's sole cost and expense and in
accordance with plans and specifications and by contractors previously approved
by Landlord.
(D) The fact that Landlord shall have heretofore consented to any
installations or alterations made by Tenant in the demised premises shall not
relieve Tenant of its obligations pursuant to this Article with respect to such
installations or alterations.
(E) If any utility company or governmental or quasi-governmental authority
requires any work, installation or improvement to be made to the Building in
connection with any
Alteration performed by Tenant, the installation or operation of equipment or
machinery in the demised premises or for any other reason relating to Tenant's
use or occupancy of the demised premises, Tenant shall reimburse Landlord for
the cost of such work, installation or improvement on demand.
54. Tenant's Alterations
(A) Tenant shall not make or perform, or permit the making or performance
of, any alterations, installations, improvements, additions or other physical
changes in or about the demised premises (collectively, "Alterations") without
Landlord's prior consent, which will not be unreasonably withheld provided that
such Alterations are performed only by contractors or mechanics first approved
by Landlord (which approval will not be unreasonably withheld), do not
materially and adversely affect any part of the Building other than the demised
premises (including, without limitation, the exterior thereof), do not
materially and adversely affect any service required to be furnished by Landlord
to Tenant or to any other tenant or occupant of the Building and do not reduce
the value or utility of the Building. All Alterations shall be done at Tenant's
expense and at such times and in such manner as Landlord may from time to time
reasonably designate pursuant to the reasonable conditions for Alterations
prescribed by Landlord for the Building ("Alteration Regulations"). Prior to
making any Alterations, Tenant (i) shall submit to Landlord detailed plans and
specifications (including layout, architectural, mechanical and structural
drawings) for each proposed Alteration and shall not commence any such
Alteration without first obtaining Landlord's approval of such plans and
specifications, (ii) shall, at its expense, obtain all permits, approvals and
certificates required by any governmental or quasi-governmental bodies, and
(iii) shall furnish to Landlord duplicate original policies of worker's
compensation insurance (covering all persons to be employed by Tenant and
Tenant's contractors and subcontractors in connection with such Alteration) and
comprehensive public liability (including property damage coverage) insurance in
such form, with such companies, for such periods and in such amounts as Landlord
may reasonably require, naming Landlord and its agents as additional insureds.
Upon completion of such Alteration, Tenant, at Tenant's expense, shall obtain
certificates of final approval of such Alteration required by any governmental
or quasi-governmental bodies and shall furnish Landlord with copies thereof and
shall, within thirty (30) days of such completion, deliver a set of final "as
built" drawings to Landlord reflecting the Alteration. All Alterations shall be
made and performed in accordance with the requirements of this lease and the
Alteration Regulations. All materials and equipment to be incorporated in the
demised premises as a result of all Alterations shall be new and first quality.
No such materials or equipment shall be subject to any lien, encumbrance,
chattel mortgage, title retention or security agreement. Tenant shall not, at
any time prior to or during the Term, directly or indirectly employ, or permit
the employment of, any contractor, mechanic or laborer in the demised premises,
whether in connection with any Alteration or otherwise, if, in Landlord's sole
but good faith discretion, such employment will interfere or cause any conflict
with other contractors, mechanics, or laborers engaged in the construction,
maintenance or operation of the Building by Landlord, Tenant or others. In the
event of any such interference or conflict, Tenant, upon demand of Landlord,
shall cause all contractors, mechanics or laborers causing such interference or
conflict to leave the Building immediately.
(B) No approval of any plans or specifications by Landlord or consent by
Landlord allowing Tenant to make any Alterations or any inspection of
Alterations made by or for Landlord shall in any way be deemed to be an
agreement by Landlord that the contemplated Alterations comply with any legal
requirements or insurance requirements or the certificate of occupancy for the
Building nor shall it be deemed to be a waiver by Landlord of the compliance by
Tenant of any provision of this lease.
(C) Tenant shall promptly reimburse Landlord for all actual fees, costs and
expenses including, but not limited to, those of architects and engineers,
incurred by Landlord to third parties in connection with the review of Tenant's
plans and specifications and inspecting the Alterations to determine whether the
same are being or have been performed in accordance with the approved plans and
specifications therefor and with all legal and insurance requirements. Copies of
bills evidencing such fees, costs and expenses will be provided to Tenant in a
timely manner upon Tenant's request.
(D) Tenant covenants that (i) it will expend not less than $6,000,000.00
(including up to $300,000.00 in the aggregate for any fees paid to Landlord
pursuant to Section 42(A) on account of additional electric capacity) in
constructing and equipping the demised premises as a so-called "meet-me room"
for the telecommunications industry ("Meet-Me Room"), and (ii) subject to force
majeure, at least fifty percent (50%) of such construction, as detailed in
Exhibit F ("Phase 1"), will be complete, at least $4,000,000.00 will have been
expended and the Meet-Me
Room will be at least partially (and significantly) operational by September 30,
2001 (the "Phase 1 Date"). Tenant will certify to Landlord that the foregoing
conditions have been met not later than the Phase 1 Date (subject to force
majeure) and will provide substantiation thereof reasonably acceptable to
Landlord. Tenant acknowledges that these covenants are a material inducement to
Landlord to enter into this lease and that any breach of any such covenant that
is not cured within thirty (30) days after notice thereof (subject to force
majeure) will constitute an immediate and material default hereunder. Within two
(2) months after the Phase 1 Date (subject to force majeure), Tenant shall
deliver to Landlord a schedule, certified by Tenant's chief financial officer,
setting forth in reasonable detail Tenant's cost for the initial construction
and equipping of the demised premises (the "Start-Up Cost"), together with
substantiation thereof reasonably acceptable to Landlord. The Start-Up Cost
shall not include any amounts paid to Landlord pursuant to Section 42(A),
although such costs, up to $300,000.00, may be used to meet the $6,000,000.00
expenditure requirement set forth above. It is understood and agreed that
construction of the Meet-Me Room may occur in two phases so that, after
completion of Phase 1, as aforesaid, the remaining work will be completed as
expeditiously as is feasible thereafter, using commercially reasonable and
diligent efforts to complete such installation, so long as at least
$6,000,000.00 has been expended and a Meet-Me Room business is fully operational
within fourteen (14) months after the Phase 1 Date (subject to force majeure).
(For the purposes of this lease, "force majeure" means events not within the
reasonable control of the applicable party, excluding, however, lack or
inadequacy of funds and including, without limitation, delays in obtaining
necessary governmental approvals so long as Tenant is proceeding diligently to
obtain same.)
(E) Landlord approves, in principle, subject to review and approval of
detailed plans and specifications therefor and Tenant's compliance with the
applicable provisions of this lease, Alterations that are typical for a
telecommunications installation, including, without limitation, HVAC, back-up
power, fuel tank, dry-pipe fire suppression system and a mobile generator plug
located inside the demised premises. Tenant may at its option cap any wet pipes
within and solely serving the demised premises so long as it does so in
compliance with the terms of this lease. Landlord agrees not to install any
additional wet pipes within the demised premises and will not permit any other
tenant to do so without Tenant's approval, which will not be unreasonably
withheld. Landlord will install drip pans under all such newly installed pipes
at Landlord's expense.
(F) Tenant acknowledges that no equipment that produces noise is to be used
or installed in the premises until Tenant has provided to Landlord a statement
from an acoustical engineer reasonably acceptable to Landlord to the effect that
he or she has evaluated the totality of Tenant's installation (separately and in
combination with the existing conditions in the demised premises, the Building,
and the neighborhood) and that, when installed and operational, such equipment
will not exceed the noise limitations of applicable Law. In addition, Tenant
covenants that, throughout the Term, it will make all commercially reasonable
efforts to minimize the noise attributable to its operations.
55. Estoppel Certificate
Tenant, at any time, and from time to time, upon at least ten (10) days'
prior notice by Landlord, shall execute, acknowledge and deliver to Landlord,
and/or to any other party, firm or corporation specified by Landlord
("Recipient"), a statement (1) 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), (2) stating
the dates to which Fixed Rent and additional rent have been paid, (3) stating
whether or not there exists any defaults by Landlord under this lease and, if
so, specifying each such default, (4) confirming (if such is the case) that
Tenant has accepted possession of and is currently occupying the demised
premises for the conduct of business and that all improvements required to be
made by Landlord (if any) have been completed to Tenant's satisfaction, (5)
stating the commencement and expiration dates of this lease, (6) stating whether
or not there are any existing defenses to or offsets against Landlord's
enforcement of this lease and Tenant's obligation to pay Fixed Rent and
additional rent hereunder, and (7) furnishing any other information that may be
reasonably requested by the Recipient.
56. Holdover
If Tenant holds over after the expiration of the Term, the parties hereby
agree that Tenant's occupancy of the demised premises after the expiration of
the Term shall be upon all of the terms set forth in this lease except that
Tenant shall pay as a use and occupancy charge for the holdover period an amount
equal to the higher of (A) an amount equal to one and a half times the pro rata
Fixed Rent and additional rent payable by Tenant during the last year of the
Term; or (B) an amount
equal to the then market rental value for the demised premises.
57. Conditional Limitation
In the event that twice in any twelve (12) month period (A) a default of
the kind set forth in Section 17(1) shall have occurred or (B) Tenant shall have
defaulted in the payment of Fixed Rent or additional rent, or any part of
either, and Landlord shall have commenced a summary proceeding to dispossess
Tenant in each such instance, then, notwithstanding that such defaults may have
been cured at any time after the commencement of such summary proceeding, any
further default by Tenant within such twelve (12) month period shall be deemed
to be a violation of a substantial obligation of this lease by Tenant and
Landlord may serve a written three (3) days' notice of cancellation of this
lease upon Tenant and, upon the expiration of said three (3) days, this lease
and the Term shall end and expire as fully and completely as if the expiration
of such three (3) day period were the day herein definitely fixed for the end
and expiration of this lease and the Term and Tenant shall then quit and
surrender the demised premises to Landlord, but Tenant shall remain liable as
elsewhere provided in this Lease.
58. Limitation on Rent
If, on the Commencement Date, or at any time during the Term, the Fixed
Rent or additional rent reserved in this lease is not fully collectible by
reason of any federal, state, county or city law, proclamation, order or
regulation, or any direction of any public officer or body pursuant to law and
of general application (collectively, "Rent Law"), Tenant agrees to take such
lawful steps as Landlord may reasonably request to permit Landlord to collect
the maximum rents that may be legally permissible from time to time during the
continuance of such Rent Law (but not in excess of the amounts reserved therefor
under this lease). Upon the termination of the effectiveness of such Rent Law,
Tenant shall pay to Landlord, to the extent permitted by the Rent Law, an amount
equal to (A) the Fixed Rent and additional rent that would have been paid
pursuant to this lease but for such Rent Law, less (B) the Fixed Rent and
additional rent paid by Tenant to Landlord during the period such Rent Law was
in effect.
59. Acceptance of Keys
If Landlord or Landlord's managing or rental agent accepts from Tenant one
or more keys to the demised premises in order to assist Tenant in showing the
demised premises for subletting or other disposition or for the performance of
work therein for Tenant or for any other purpose, the acceptance of such key or
keys shall not constitute an acceptance of a surrender of the demised premises
nor a waiver of any of Landlord's rights or Tenant's obligations under this
lease including, without limitation, the provisions relating to assignment and
subletting and the condition of the demised premises.
60. Security Deposit
(A) Supplementing Article 34, Tenant shall deliver as the Security Deposit
an irrevocable letter of credit (the "Letter of Credit") in the amount of the
Security Deposit issued by a New York City commercial bank acceptable to
Landlord in its sole discretion, and in the form of the letter of credit annexed
hereto as Exhibit G, to be held by Landlord as the Security Deposit in
accordance with Article 34 and this Article 60. The Letter of Credit shall (i)
initially expire not less than one (1) year from the Commencement Date or the
date of issuance if delivered to Landlord thereafter, (ii) provide for automatic
renewals for periods of not less than one (1) year, (iii) be presentable and
payable in Manhattan, and (iv) have a final expiration date not less than three
(3) months after the Expiration Date. In the event of a default by Tenant in the
performance of any of the terms, provisions and conditions of this lease that is
not cured within any applicable notice and/or cure period, Landlord shall be
permitted to draw down any portion or the entire amount of the Letter of Credit
and apply the proceeds or any part thereof in accordance with Article 34 of this
lease and retain the balance for the Security Deposit. Landlord agrees to give
an accounting to Tenant regarding the application of any such proceeds. Landlord
shall also have the right to draw down any portion or the entire amount of the
Letter of Credit in the event that Landlord receives notice that the date of
expiry of the Letter of Credit will not be extended by the issuing bank and
retain the proceeds for the Security Deposit. If Landlord shall have drawn
against the Letter of Credit and applied all or any portion thereof, or if
Landlord shall have applied any portion of any cash Security Deposit, then
Tenant shall deposit with Landlord, upon demand, a sufficient amount of cash to
bring the balance of the monies held by Landlord to the amount of the Security
Deposit. In addition, at any time that Landlord is holding cash as the Security
Deposit, Landlord may demand by notice to Tenant that Tenant provide a Letter of
Credit in the total amount of the required Security Deposit (upon receipt of
which Landlord will deliver the cash security to Tenant), and if Tenant fails to
provide such Letter of
Credit within twenty (20) days after such demand is given, Landlord may itself
arrange for the issuance thereof, using the cash security it is then holding,
and Tenant shall upon demand reimburse Landlord, as additional rent, for the
amount by which the cost thereof, including fees and other reasonable costs of
issuance, exceeds the cash security theretofore held by Landlord. Tenant's
failure to comply with the provisions of this Article will entitle Landlord to
exercise all the same remedies as are available in the event of a default in the
payment of Fixed Rent.
(B) Tenant will be permitted to reduce the amount of the Security Deposit
to (x) $4,350,000.00 at such time as it has completed and fully paid for Phase I
and has obtained all required permits and approvals therefor, the Meet-Me Room
is at least partially (but significantly) operational, Tenant has expended not
less than $4,000,000.00 of the Start-Up Cost and there are no liens filed with
respect to such work; (y) $3,500,000.00 at such time as it has completed and
fully paid for the entire construction and equipping of the Meet-Me Room and has
obtained all required permits and approvals therefor, the Meet-Me Room is fully
operational, and there are no liens filed with respect to such work; and (z)
$2,500,000.00 on the date that is five (5) years after Tenant has satisfied the
conditions listed in clause (y); provided in each such case that (i) as of the
applicable date of reduction, no default had occurred on Tenant's part that
remained uncured after notice and the expiration of the applicable grace period
and (ii) on such date no monetary or material non-monetary default exists. If
(notwithstanding the provisions of Section (A) above requiring that the Security
Deposit take the form of a letter of credit) the Security Deposit is in cash,
Landlord will pay to Tenant the amount of the applicable reduction within
fifteen (15) business days after Tenant's request therefor. If the Security
Deposit is a Letter of Credit, Landlord will accept a Letter of Credit in the
applicable reduced amount in exchange for the existing Letter of Credit, or will
enter into an amendment of the Letter of Credit reducing the amount thereof to
the applicable amount.
61. Definitions of "Landlord" and "Owner"
The terms "Owner" and "Landlord," whenever used in this lease (including,
without limitation, in Article 31), shall have the same meaning.
62. Landmark Designation
Tenant is hereby notified that the premises are subject to the jurisdiction
of the Landmarks Preservation Commission. In accordance with sections 25-305,
25-306, 25-309 and 25-310 of the Administrative Code of the City of New York and
the rules set forth in Title 63 of the Rules of the City of New York, any
demolition, construction, reconstruction, alteration or minor work as described
in such sections and such rules may not be commenced within or at the premises
without the prior written approval of the Landmarks Preservation Commission.
Tenant is notified that such demolition, construction, reconstruction,
alterations or minor work includes, but is not limited to, (a) work to the
exterior of the premises involving windows, signs, awnings, flagpoles, banners
and storefront alterations and (b) interior work to the premises that (i)
requires a permit from the Department of Buildings or (ii) changes, destroys or
affects an interior architectural feature of an interior landmark or an exterior
architectural feature of an improvement that is a landmark or located on a
landmark site or in a historic district.
63. Hazardous Materials
(A) Tenant shall not cause nor permit Hazardous Materials (as defined
below) to be used, transported, stored, released, handled, produced or installed
in or from the demised premises, except that inflammable or combustible (but not
explosive) items may be brought into and used within the demised premises in
limited quantities to the extent currently needed for the operation of customary
office equipment and except that fuel and lubricants may be brought into the
demised premises or Building in quantities required for the operation of
Tenant's generator and other Meet-Me Room equipment, so long as done in
compliance with all Laws. The term "Hazardous Materials" shall mean, for the
purposes hereof, any flammable, explosive or radioactive materials, hazardous
wastes, hazardous or toxic substances or related materials, asbestos or any
material containing asbestos, or any other substance or material, as defined by
any present or future Law, including, without limitation, the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, the
Hazardous Materials Transportation Act, as amended, the Resources Conservation
and Recovery Act, as amended, Superfund Amendment and Reauthorization Act of
1986 and in the regulations adopted and publications promulgated pursuant to
each of the foregoing. In the event of a breach of the provisions of this
Article, Landlord, in addition to all of its rights and remedies under this
lease and pursuant to Law, may require Tenant to remove any such Hazardous
Materials from the
demised premises or the Building in the manner prescribed for such removal by
all requirements of Law. The provisions of this Article shall survive the
expiration or sooner termination of this lease.
(B) Landlord shall not itself cause nor knowingly permit Hazardous
Materials to be used, transported, stored, released, handled, produced or
installed in, near or from the demised premises, or in any of Tenant's
installations throughout the Building, except that inflammable or combustible
(but not explosive) items may be brought into and used within the Building in
limited quantities to the extent currently needed for the operation and
maintenance of the Building or the business of any occupant in compliance with
all Laws. If, in connection with Tenant's initial renovation or later alteration
of the demised premises, or in any of its installations in other portions of the
Building, any friable asbestos or Hazardous Material (other than floor tile) is
discovered in the demised premises and is not the responsibility of Tenant as
above provided and is required by applicable Law to be removed or encapsulated,
then, as Tenant's sole remedy, Landlord will at Landlord's expense and with
reasonable promptness remove or encapsulate such friable asbestos or Hazardous
Material in accordance with Law and to the extent that all or any portion of the
demised premises are unusable as a result of the presence or remediation of such
friable asbestos or Hazardous Material, Fixed Rent and all additional rent
allocable to the unusable portion of the demised premises shall xxxxx until the
remediation is complete and such portion is rendered usable. Landlord shall have
no responsibility or liability with respect to floor tile, whether or not
asbestos-containing. Landlord shall provide Tenant with an ACP-5 form for the
premises with reasonable promptness after the execution and exchange of this
lease.
64. Interconnections
(A) Subject to Landlord's prior approval, which will not be unreasonably
withheld, Tenant shall have the right to install and run both vertical and
horizontal communication interconnections, via conduit, wave guide and ceramic
duct, provided that such installation is performed in accordance with all
applicable Laws and the relevant provisions of this lease (including, without
limitation, Articles 3, 6 and 54) and in accordance with plans and
specifications previously approved by Landlord. Prior to any cable pulls being
installed through any conduits running through other tenant spaces, Tenant shall
present a copy of an agreement between Tenant and such other tenant (reasonably
satisfactory to Landlord) whereby such other tenant consents to Tenant making
the proposed connection or other installation.
(B) All interconnections shall conform to the following specifications:
(1) The conduit shall be supported a minimum of every 10 linear feet.
(2) The conduit shall be tagged each 15 linear feet, with letters a
minimum of 2-1/2 inches in height, as required by Landlord in its approval
letter.
(3) All penetrations of fire-rated partitions or slabs shall be
fire-stopped with a UL approved material of equal or greater rating.
(4) Tenant shall inform the Building manager on completion of the
installation for final inspection and approval.
(5) Tenant's sub-contractor must coordinate all work with the building
manager and other tenants affected by the work.
(6) All conduit shall be rigid conduit or elastic metal tubing. Tenant
acknowledges that the use of any other type of conduit is inherently risky,
particularly in an environment, like the Building, that has very numerous
conduit runs and that will have many more. If, however, Tenant requests, and
Landlord permits, plastic flexible conduit (which will be permitted, if at all,
only for fiber cable), then Tenant acknowledges that such installation will be
at Tenant's sole risk, and Tenant hereby agrees to indemnify Landlord and its
partners, and the respective directors, officers, agents and employees of
Landlord and its partners (collectively, the "Landlord Parties"), and to hold
the Landlord Parties harmless, against and from all loss, damage, cost,
liability or expense (including, without limitation, reasonable attorneys' fees
and disbursements) suffered or incurred by Landlord by reason of any claim
arising from the installation and/or use of any such conduit or any damage
resulting to any cable installed therein, whether or not arising in whole or in
part from the negligence of any Landlord Party.
(C) Whether Tenant makes use of an existing means of interconnection in the
Building or installs a new means of interconnection, Tenant shall pay an annual
charge (the "Interconnection Charge"), payable in equal monthly installments
along with monthly installments of Fixed Rent, which, for each interconnection,
shall be 87.5% of the standard Building charge in effect as of the date of the
installation of that particular interconnection. The
present Building standard charge is $400.00 per 100 linear feet (or part
thereof) per annum. The Interconnection Charge, once established for a
particular interconnection, shall increase by four (4%) percent per annum on a
cumulative basis on January 1, 2002 and on each January 1 thereafter throughout
the Term. No Interconnection Charge shall be payable by Tenant with respect to
any interconnection that does not originate or terminate in the demised premises
and to which Tenant is not a party (originally or by assignment and assumption).
The Interconnection Charge shall not apply with respect to cross-connections (a
"cross-connection," for all purposes of this lease, meaning a connection that
originates and ends within, and does not leave, the demised premises).
(D) Tenant agrees that the charges set forth in Section (C) shall be
effective as of the date of Landlord's approval of the applicable installation.
If this lease is renewed, such charges during the renewal term may, at
Landlord's option, be increased to 87.5% of those then generally prevailing in
the Building.
(E) Tenant and Landlord agree that all interconnections between other areas
of the Building and the demised premises shall be requested and made by Tenant
rather than by Landlord or the other party or parties to the interconnection
and, subject to Section 66(D) and all other applicable provisions of this lease,
Tenant shall have exclusive control thereover. Tenant shall have the right to
charge its customers or other parties who wish to make interconnections to the
demised premises Tenant's market rates therefor (which shall be deemed to be
included in Meet-Me Room Fees, as hereinafter defined) and Tenant shall be
responsible for payment of the Interconnection Fee therefor to Landlord.
65. Landlord's Access
Supplementing Article 13, upon reasonable prior notice to Tenant (which
need not be in writing), except in an emergency when no notice shall be
required, Landlord and other tenants, licensees and occupants of the Building
shall have access to the Building electrical closets, electrical distribution
systems, shafts and conduits located within the demised premises.
66. Meet-Me Room
(A) Landlord expressly agrees that Tenant may license the use of portions
of the demised premises to its customers solely for the purpose of locating
equipment therein or maintaining interconnections therein, thereto and
therefrom, subject, however, to the following conditions:
(1) Such license shall be granted only upon the execution by Tenant
and its customers of an agreement ("Meet-Me Room License") that expressly
provides, among other things, that (i) such license and the rights of such
licensee shall at all times be subordinate to this lease and shall not be
binding on Landlord; (ii) such license shall be for equipment only and shall not
grant to the licensee the right to occupy any portion of the Building or the
demised premises; and (iii) such licensee agrees that, if this lease is
terminated or expires prior to the termination of the license then, at the
request of Landlord, it shall automatically attorn to and become the licensee of
Landlord without any change in the terms or other provisions of its license;
provided, however, that Landlord shall not be (w) bound by any payment of fees
for more than one month in advance (except that, for any Meet-Me Room License,
Tenant may collect Meet-Me Room Fees allocable to up to the first 12 months of
the term of such Meet-Me Room License upon the execution thereof provided it
notifies Landlord thereof at the time it delivers to Landlord a copy of such
Meet-Me Room License); (x) bound by any amendment or modification of a
Meet-Me-Room License that materially affects the amounts or due dates of the
payments to be made by the licensees or materially increases the services to be
provided unless made with Landlord's consent; (y) liable for any act or omission
of Tenant; or (z) subject to any offset or defenses that any licensee may have
against Tenant. No such Meet-Me-Room License shall become effective unless and
until Landlord has approved the licensee as required by subsection (2) and
Tenant has delivered a fully executed counterpart of such Meet-Me-Room License
to Landlord.
(2) Each such customer shall have been approved in writing by
Landlord, which approval may be granted or withheld in Landlord's sole
discretion. Landlord shall use reasonable efforts to grant or deny such approval
within five (5) business days after submission of a request therefor, and
failure by Landlord to respond to any such request within ten (10) days after
request shall be deemed to be approval thereof. All requests for approval shall
be in writing and shall be sent by hand delivery against a receipt to the
attention of the Building Manager at the Building and to the attention of Xxxxxx
Xxxxxx at the address set forth for Landlord at the top of the first page (or at
such other notice address for Landlord as Landlord may specify). If Tenant fails
to enter into a Meet-Me Room License with any approved customer and/or to
provide a
copy of the executed Meet-Me Room License with such customer within ninety (90)
days after the granting by Landlord of its approval, then Landlord's approval of
such customer shall automatically be deemed rescinded.
(3) Each Meet-Me Room License shall be assignable (outright and/or as
security) by Tenant to Landlord, and shall be at not less than market rates. A
copy of each Meet-Me Room License shall be delivered to Landlord within thirty
(30) days after the execution thereof.
(B) The demised premises and the operations therein and therefrom shall be
known as "60 Xxxxxx Street Meet-Me Room operated by FiberNet Telecom Group."
Such designation shall not be changed without Landlord's prior written consent.
All advertising and promotional materials relating to the demised premises, in
whatever format, shall be subject to the prior written consent of Landlord,
which will not be unreasonably withheld if such materials are consistent with
this lease.
(C) Tenant covenants that it will charge not less than market rates for all
services provided from, through, to, in or in connection with the demised
premises. Upon Landlord's request from time to time, Tenant will provide
Landlord with a schedule of its current charges.
(D) The demised premises shall at all times be a "carrier-neutral site,"
and Tenant shall, upon request by Landlord from time to time, provide
substantiation thereof reasonably acceptable to Landlord. If at any time Tenant
fails to maintain a "carrier-neutral site," or to provide substantiation
thereof, in each case as determined by Landlord in its good faith discretion
(subject, however, to Section (E)), (i) it shall constitute an immediate default
under this lease without the necessity of notice or the expiration of any cure
period, entitling Landlord to exercise all available rights and remedies, and
(ii) Landlord shall thereupon be relieved of its obligations under Article 74
for the balance of the Term. The term "carrier-neutral site" shall mean that, at
all times during the Term, the Meet-Me-Room operated within the demised premises
shall be operated and managed in a manner that will offer all collocation,
interconnection and other related services within the Meet-Me Room, at
prevailing market rates, terms and conditions and without preferential or
discriminatory policies or practices to the unfair benefit or detriment of a
licensee, as compared to any other licensee with which Tenant has entered (or in
the future enters) into a Meet-Me Room License, subject to changes in the
prevailing market rates, terms and conditions from time to time; provided,
however, that Tenant shall not be deemed to have violated the requirement to
maintain the Meet-Me Room as a "carrier-neutral site" if there is insufficient
space, equipment or systems in the Meet-Me Room to permit Tenant, in its
reasonable opinion, to service the requirements of a prospective licensee.
(E) Notwithstanding anything to the contrary contained herein, in the event
that Landlord and Tenant cannot agree as to whether Tenant is maintaining a
"carrier-neutral site," the parties agree to submit such dispute to arbitration
before a single arbitrator familiar with the telecommunications (and,
preferably, the interconnection) industry. Such arbitration shall be held in the
City, State and County of New York pursuant to the Expedited Procedures
provisions of the Commercial Arbitration Rules of the American Arbitration
Association, or any successor organization (presently Rules 53 through 57 and,
to the extent applicable, Rule 19); provided, however, that with respect to any
such arbitration, (a) the decision and award of the arbitrator shall be final
and conclusive on the parties and (b) judgment may be had and entered on the
decision and award of the arbitrator in any court of competent jurisdiction.
67. Percentage Rent - Meet-Me Room
(A) During and for each calendar year during the Term (including the
partial calendar year commencing on April 1, 2002), Tenant shall pay percentage
rent ("Percentage Rent") equal to the amount by which fifty (50%) percent of all
Meet-Me Room Fees (as hereinafter defined) for such year exceeds the Base
Amount, as hereinafter defined, for such year. For the purposes of this Article,
the period April 1, 2002 - December 31, 2002 is deemed to be the first "calendar
year" for which Percentage Rent is payable. (Percentage Rent cannot be a
negative number, but can be zero.) "Meet-Me Room Fees" constitute all revenues
received by Tenant (including, without limitation, the following services
utilized by Tenant or its affiliates, to be recognized as hereinafter set forth)
or any of its subtenants or affiliates (collectively, "Providers") in exchange
for Tenant's (or any Provider's) furnishing of (i) collocation services, (ii)
intra-Meet-Me Room circuits and/or (iii) all other services originating or
terminating (or both) within the demised premises or anywhere else in the
Building, other than communications connections strictly subject to the 19th
Floor Lease and revenue generated from the excluded services hereinafter set
forth (all such services other than the services excluded below being sometimes
hereinafter collectively called "Meet-Me Room Services"). Meet-Me Room Fees
shall be recognized on an
accrual basis, in accordance with generally accepted accounting principles,
consistently applied, and shall exclude (i) Transport Fees, as defined in
Article 68, or taxes thereon, (ii) taxes on Meet-Me Room Fees collected by
Tenant and paid to the taxing jurisdiction by Tenant, (iii) one-time costs
incurred by Tenant on behalf of its customers (such as site preparation work for
a particular customer) that Tenant passes through to such customer without any
xxxx-up or profit, and (iv) monies received by customers of the Meet-Me Room for
services rendered to their customers. Tenant shall recognize Meet-Me Room Fees
for Meet-Me Room Services provided to itself or its affiliates at the same rate
it charges for Meet-Me Room Services to others. Tenant shall, and shall cause
all other Providers to, record all Meet-Me Room Fees in a commercially
reasonable manner at the time received. Tenant shall keep at the demised
premises or at Tenant's executive offices within the New York metropolitan area
a full and accurate set of books and records adequately showing the amount of
Meet-Me Room Fees, consisting at least of such records as would normally be
examined by an independent accountant pursuant to accepted auditing standards in
performing an audit of Tenant's receipts. Such books and records shall be kept
in accordance with generally accepted accounting principles and practices, shall
be consistent with Exhibit H, and shall be retained by Tenant for a period of
not less than one (1) year following the end of the year to which they have
reference. Except with respect to a mortgagee or bona fide prospective purchaser
or underlying lessee of the entire Building (which mortgagee, purchaser or
underlying lessee is certified as such to Tenant), Landlord and its
representative shall hold in strict confidence all information received on any
audit, except where such information must necessarily be divulged as a result of
litigation or to comply with any applicable Laws, provided that in each such
case (except compliance with Laws and litigation between Landlord and Tenant)
Landlord shall provide reasonable prior notice to Tenant and shall use
reasonable efforts to avoid such disclosure. If Landlord is conducting an
examination and/or audit of Tenant pursuant to this Section, Tenant shall also
furnish to Landlord, solely relating to the demised premises, relevant portions
of all statements, information, and copies of sales and income tax reports and
returns and inventory records and other data evidencing Meet-Me Room Fees.
(B) Within forty-five (45) days following the end of each calendar quarter
of the Term, Tenant shall submit to Landlord a statement of Meet-Me Room Fees
for such quarter certified to be true and correct by the chief financial officer
of Tenant. No later than each May 1, Tenant shall furnish to Landlord (i) a
statement certified by the chief financial officer of Tenant setting forth the
amount of Meet-Me Room Fees for the preceding calendar year (the "Yearly
Statement"), and (ii) a statement certified by the chief financial officer of
Tenant setting forth the costs and expenses of operation of the Meet-Me Room
(not including Percentage Rent, Transport Fee Rent and the costs allocable to
the generation of Transport Fees) ("Expenses") for the preceding year ("Expense
Statement"). Expenses shall include all those items listed on Exhibit I as well
as all salaries, wages, medical, surgical and general welfare benefits
(including group life and medical insurance) and pension payments, payroll
taxes, worker's compensation, benefits, unemployment insurance, social security
and other similar taxes of or with respect to employees (including salespersons)
of Tenant and/or its affiliates and/or independent contractors (including
salespersons) engaged in the operation and maintenance of the demised premises.
If Tenant fails timely to submit a Yearly Statement, then the Percentage Rent
due with respect to the applicable year shall bear interest at the Lease Rate
from the first day of the year in which such Yearly Statement was due until the
date paid. If 50% of the aggregate Meet-Me Room Fees for such year exceeds the
Base Amount for such year, the amount of the excess shall be paid to Landlord
simultaneously with the submission of the Yearly Statement. All quarterly
Meet-Me Room Fees statements and the Yearly Statement and Expense Statement to
be supplied by Tenant to Landlord shall be in Tenant's usual form that it
provides to lenders, regulatory agencies and like parties. Each Yearly Statement
and Expense Statement sent to Landlord shall be conclusive and binding on
Landlord ninety (90) days after receipt thereof unless before the expiration of
said period Landlord sends Tenant written notice specifying the claimed
inaccuracies, in which event Tenant shall retain all applicable records until
the termination of such dispute. Landlord and/or Landlord's auditor shall have
the right, at its sole expense (except as set forth below), at any time after
ten (10) business days notice, once annually during normal business hours, to
inspect and/or audit the records of Tenant relating to Meet-Me Room Fees and
Expenses. If the Meet-Me Room Fees exceed those reported, Tenant shall
immediately pay any deficiency in Percentage Rent owing to Landlord (if any). If
Meet-Me Room Fees vary from those reported by three percent (3%) or more, Tenant
shall pay Landlord's cost of inspection and audit and shall pay interest on the
shortfall at a rate (the "Shortfall Interest Rate") equal to two (2%) percent
per annum in excess of the "prime rate" or "base rate" of Citibank, N.A. from
time to time in effect from the date of submission of the Yearly Statement in
question, if timely submitted (or, if not timely submitted, from the first day
of the year in which such Yearly Statement was due) until paid,
which Shortfall Interest Rate shall increase by one (1) percentage point for
each percent (rounded to the nearest percent) of variance in excess of three
(3%) percent (but in no event shall the Shortfall Interest Rate exceed the
maximum rate permitted by applicable law). If actual Expenses vary from those
reported on the Expense Statement by three percent (3%) or more, Tenant shall
pay Landlord's cost of inspection and audit. Notwithstanding the foregoing, if
Tenant disagrees with the determination of Landlord or its auditor as to the
amount of Meet-Me Room Fees or Expenses, Tenant shall have the right to
challenge such finding by a notice given to Landlord within thirty (30) days
after the date on which Landlord notifies Tenant of Landlord's or its auditor's
determination, which notice must be accompanied by a letter from an independent
certified public accountant retained by Tenant supporting Tenant's calculations.
If Tenant's accountant and Landlord's auditor cannot agree on the amount of
Meet-Me Room Fees or Expenses within fifteen (15) days after the date of
Tenant's notice challenging Landlord's determination of Meet-Me Room Fees or
Expenses, as the case may be, Landlord's auditor and Tenant's accountant shall
appoint an independent certified public accountant to resolve which of
Landlord's or Tenant's determination of the Meet-Me Room Fees or Expenses, as
the case may be, is most accurate (failing which agreement, such independent
certified public accountant shall be appointed, upon application by either
party, by the American Arbitration Association, in accordance with its then
rules). The finding of the accountant so appointed shall be made within thirty
(30) days after the date of such appointment and shall be binding on the
parties. The cost of such third accountant shall be borne by the unsuccessful
party in such dispute.
(C) The Base Amount for each year shall be as set forth in the following
table:
Calendar Year Base Amount
--------------------------------- -------------
April 1, 2002 - December 31, 2002 $2,362,500.00
2003 $3,228,750.00
2004 $3,309,469.00
2005 $3,392,205.00
2006 $3,477,011.00
2007 $3,563,936.00
2008 $3,653,034.00
2009 $3,744,360.00
2010 $3,837,969.00
2011 $3,933,918.00
2012 $4,032,266.00
2013 $4,133,073.00
2014 $4,236,400.00
2015 $4,342,310.00
The Base Amount shown in the preceding table shall be reduced for each year
in which Fixed Rent has been abated, whether pursuant to Article 9, Article 75,
Section 77(E), any other provision of this lease, by Law, pursuant to court
decree or arbitration award, by agreement of the parties, or otherwise, by the
aggregate amount of such abatement allocable to such year.
(D) The following examples illustrate the calculation of Percentage Rent:
(1) If Meet-Me Room Fees for the period April 1, 2002 - December 31,
2002 total $6,000,000.00, then Percentage Rent for 2002 is
($6,000,000/2)-$2,362,500.00=$637,500. If Meet-Me Room Fees for the same period
were $4,500,000, then Percentage Rent for 2002 would be
($4,500,000/2)-$2,362,500= -$112,500, therefore $0.
(2) If Meet-Me Room Fees for the period January 1, 2003 - December 31,
2003 total $10,000,000.00, then Percentage Rent for 2003 is
($10,000,000/2)-$3,228,750=$1,771,250. If Meet-Me Room Fees for the same period
were $7,000,000, then Percentage Rent for 2003 would be
($7,000,000/2)-$3,228,750=$271,250. If Meet-Me Room Fees for the same period
were $6,000,000, then Percentage Rent for 2003 would be
($6,000,000/2)-$3,228,750= -$328,750, therefore $0.
68. Percentage Rent - Transport Fees
(A) During and for each calendar year during the Term, commencing with
April 1, 2001 (and appropriately prorated for any partial calendar year), Tenant
shall pay percentage rent ("Transport Fee Rent") equal to twelve and one-half
(12.5%) percent of all Transport Fees (as hereinafter defined) for such calendar
year (or part thereof). "Transport Fees" constitute all revenues received by
Tenant or any Provider in exchange for Tenant's (or any Provider's) furnishing
of services that originate in the demised premises, cross the exterior wall of
the Building and terminate in a facility outside the Building. Transport Fees
shall be recognized on an accrual basis, in accordance with generally accepted
accounting principles, consistently applied, and shall not include (i) Meet-Me
Room Fees or taxes thereon, (ii) taxes on Transport Fees collected by Tenant and
paid to the taxing jurisdiction by Tenant, and (iii) monies received by
customers of the Meet-Me Room for services rendered to their customers. Tenant
shall recognize Transport Fees for services provided to itself or its Providers
at the same rate it charges for such services to others. Tenant shall, and shall
cause all other Providers to, record all Transport Fees in a commercially
reasonable manner at the time received. Tenant shall keep at the demised
premises or at Tenant's executive offices within the New York metropolitan area
a full and accurate set of books and records with respect to Transport Fees, as
provided in Section 67(A), the provisions of which shall be generally applicable
to Transport Fee Rent as well as to Percentage Rent.
(B) Within forty-five (45) days following the end of each calendar quarter
of the Term, Tenant shall submit to Landlord an unaudited statement of Transport
Fees for such quarter, certified to be true and correct by the chief financial
officer of Tenant. No later than each May 1, Tenant shall furnish to Landlord a
statement certified by the chief financial officer of Tenant setting forth the
amount of Transport Fees during the prior year (the "Yearly Transport Fee
Statement"), which shall be accompanied by payment in the amount of twelve and
one-half (12.5%) percent thereof. The provisions of Section 67(B) above,
including specifically (but without limitation) those provisions regarding audit
fees and interest on deficiencies and the mechanism for resolving disputes,
shall be generally applicable to Transport Fee Rent.
69. Landlord's Exercise of Self-Help
Any reservation of a right by Landlord to enter upon the demised premises
and to make or perform any repairs, alterations, or other work in, to, or about
the demised premises that, in the first instance, is Tenant's obligation
pursuant to this lease, shall not be deemed to (a) impose any obligation on
Landlord to do so; (b) render Landlord liable to Tenant or to any third party
for Landlord's failure to do so; or (c) relieve Tenant from any obligation to
indemnify Landlord as otherwise provided in this lease.
70. Real Estate Utility Corporation and Related Taxes
The parties acknowledge that New York City presently imposes a tax on
certain utility and/or telecommunications equipment located in and/or utilized
in connection with the demised premises ("REUC Tax") and that other governmental
authorities may hereafter impose similar taxes on such equipment (the REUC Tax
and such other taxes being hereinafter collectively called "Utility Taxes").
Tenant agrees to pay all Utility Taxes as and when due and payable, and, on the
first days of each August and February during the Term, to furnish Landlord with
reasonable substantiation of Tenant's timely payment of all Utility Taxes.
71. Tenant's Indemnity
In addition to Tenant's indemnity contained in Article 8, Tenant shall
indemnify and save harmless Landlord against and from all liabilities,
obligations, damages, penalties, claims, costs and expenses, including
reasonable attorneys' fees, paid, suffered or incurred by Landlord that occur in
or about the demised premises or that arise from the possession, use, occupancy,
management, repair, maintenance or control of the demised premises, or any
portion thereof, except to the extent caused by the negligence or wilful
misconduct of Landlord, its agents or employees. The last sentence of Article 8
shall apply to the foregoing indemnity.
72. Landlord's Right To Terminate Lease
(A) Landlord shall have the right, at any time, for any reason or for no
reason, at its sole discretion, by giving notice (the "Termination Notice") to
Tenant, to terminate this lease as set forth in this Article with the same
effect as if the effective date of such termination were the Expiration Date.
The right contained in this Article is in addition to, and not a replacement
for, Landlord's rights to terminate this lease elsewhere provided for herein by
reason of Tenant's default or otherwise. If Landlord exercises its right to
terminate this lease under this Article,
Tenant shall, on or before the Termination Date (as hereinafter defined), vacate
and surrender possession of the demised premises and all trade fixtures,
equipment and personal property therein (the "Internal MMR Equipment") to
Landlord in good order and condition (except for reasonable wear and tear and
damage caused by casualty not required by this lease to be repaired by Tenant),
and also including, if Landlord so requests in the Termination Notice, those
trade fixtures, equipment and other personal property located anywhere in the
Building (including on the roof or set-backs thereof), but not in the demised
premises, that is required to operate the demised premises as a Meet-Me Room
(collectively, the "External MMR Equipment") as Landlord may specify, which
delivery shall be free and clear of all liens, encumbrances, rights, privileges,
tenancies, occupancies and rights of occupancy of any kind whatsoever (other
than Meet-Me Room Licenses)(subject, however, to Section (C)). The External MMR
Equipment does not include any equipment located in or servicing the space
subject to the 19th Floor Lease that is not necessary to operate the demised
premises as a Meet-Me Room in the manner in which it was being operated by
Tenant prior to delivery of the Termination Notice. In addition, if Landlord so
requests in the Termination Notice, Tenant shall unconditionally assign (or
cause to be assigned) to Landlord all Meet-Me Room Licenses and other agreements
to which it or any Provider may be a party relating to the demised premises as
specified by Landlord (subject, however, to Section (D). Tenant will also
deliver to Landlord original counterparts of all such assigned Meet-Me Room
Licenses and other agreements and originals or photocopies of all relevant
correspondence. Landlord shall be entitled to a credit against all amounts
payable by Landlord to Tenant under this Article or elsewhere in this lease in
the amount of any Meet-Me Room Fees and Transport Fees under Meet-Me Room
Licenses and other agreements so assigned to Landlord that are allocable to any
period after the Termination Date. If such credit exceeds the amount payable by
Landlord to Tenant, then Tenant shall pay the shortfall to Landlord promptly
after the amount thereof has been determined
(B) Landlord's right to terminate this lease pursuant to this Article shall
be subject to the following conditions:
(1) In order to terminate this lease pursuant to this Article,
Landlord shall deliver the Termination Notice to Tenant specifying the effective
date of the termination (the "Termination Date"), which Termination Date shall
be not less than ninety (90) days after the date of the Termination Notice.
(2) If at the time Landlord sends the Termination Notice it is in
negotiations with one or more other unrelated parties to operate the demised
premises as a Meet-Me Room, or if Landlord enters into such negotiations within
ninety (90) days after sending the Termination Notice, then Landlord shall,
along with the Termination Notice (or within ten (10) days after commencing such
negotiations during such ninety (90) day period), set forth the material
business terms (the "New Terms") on which Landlord would be prepared to lease
the demised premises to an unrelated third party for the operation of a Meet-Me
Room (pursuant to a bona fide, arm's-length transaction). Tenant shall then have
the option, to be exercised by notice (the "Nullification Notice") delivered
within ten (10) days after delivery of the Termination Notice (as to which time
is of the essence), to nullify Landlord's exercise of the termination option,
the effectiveness of which nullification is conditioned upon (i) the execution
and delivery within forty-five (45) days after delivery of the Nullification
Notice of an amendment to this lease conforming it to the New Terms (the
"Amendment"), and (ii) delivery to Landlord along with the Nullification Notice
of a certified or bank check in the amount of $350,000.00 (the "Nullification
Payment"). Landlord and Tenant shall promptly begin and in good faith continue
the negotiation of the terms of the Amendment toward the end that it be
consummated within the 45-day deadline. If, however, for any reason (other than
Landlord's bad faith), the Amendment is not executed and exchanged by the date
that is forty-five (45) days after the date of the Nullification Notice, then
the Nullification Notice shall be of no effect, Landlord's exercise of its
termination option shall be fully effective (subject to subsection (3)), and
Landlord shall be entitled to retain the Nullification Payment as compensation
for its additional expenses, potential liability to third parties and potential
loss of the original proposed transaction incurred by reason of negotiating with
Tenant. Tenant agrees that the Nullification Payment is a reasonable liquidation
of Landlord's actual expenses and potential exposure and is not a penalty.
(3) If (x) Tenant fails timely to send a Nullification Notice with
respect to a set of New Terms, or (y) Tenant does send such a notice but the
parties fail to execute and deliver an Amendment with respect thereto, and if,
within twelve (12) months after the date on which Landlord sent the Termination
Notice, Landlord is prepared to lease the demised premises as a Meet-Me Room at
a net effective rental (taking into account any allowances, concessions and the
like, and using a discount rate equal to the then-current "prime rate" or "base
rate" of Citibank, N.A.) of less than 90% of the net effective rental reflected
in the set of New Terms
offered to Tenant in the Termination Notice, Landlord shall so notify Tenant (in
a "Second Notice"), setting forth the revised terms (the "Revised Terms") that
Landlord is prepared to accept from the third party, and offering to lease the
demised premises to Tenant upon such Revised Terms. Tenant shall then have the
option, to be exercised by notice (the "Acceptance Notice") delivered within ten
(10) days after delivery of the Second Notice (as to which time is of the
essence), to enter into a new lease with Landlord upon the Revised Terms, the
effectiveness of the exercise of which option is conditioned upon (i) the
execution and delivery within twenty (20) days after delivery of the Acceptance
Notice of an amendment to this lease conforming it to the Revised Terms (the
"Alternative Amendment"), and (ii) delivery to Landlord along with the
Acceptance Notice of a certified or bank check in the amount of $350,000.00 (the
"Acceptance Payment"). Landlord and Tenant shall promptly begin and in good
faith continue the negotiation of the terms of the Alternative Amendment toward
the end that it be consummated within the 20-day deadline. If, however, for any
reason (other than Landlord's bad faith), the Alternative Amendment is not
executed and exchanged by the date that is twenty (20) days after the date of
the Acceptance Notice, then the Acceptance Notice shall be of no effect,
Landlord shall have no obligation ever to offer the demised premises to Tenant
again (no matter what the outcome of Landlord's pending or future negotiations
with third parties and regardless of any change in the terms thereof), and
Landlord shall be entitled to retain the Acceptance Payment as compensation for
its additional expenses, potential liability to third parties and potential loss
of the second proposed transaction incurred by reason of negotiating with
Tenant. Tenant agrees that the Acceptance Payment is a reasonable liquidation of
Landlord's actual expenses and potential exposure and is not a penalty.
(4) If Landlord and Tenant enter into an Amendment or an Alternative
Amendment, then Landlord shall have no right to send a Termination Notice to
Tenant until on or after the fifth (5th) anniversary of the date of the
execution and exchange of the Amendment or the Alternative Amendment, as the
case may be.
(5) If Landlord effectively terminates this lease pursuant to this
Article, within thirty (30) days after the later to occur of (a) Tenant's
delivery of the Schedule (as hereinafter defined) and (b) the Termination Date,
and provided Tenant shall have complied with its obligations under Section (A),
Landlord shall pay to Tenant a termination fee (the "Termination Fee")
consisting of (i) the unamortized balance of the Start-Up Cost, as of the
Termination Date (determined on a straight-line basis for each piece of
equipment's useful life), plus (ii) an amount equal to a twenty (20%) percent
per annum internal rate of return on such unamortized balance, as of the end of
each Year. If the Termination Date is prior to the second anniversary of the
Commencement Date, then there shall be added to the Termination Fee (iii) an
amount equal to an additional twenty (20%) percent per annum internal rate of
return on such unamortized balance, as of the end of Year 1 and Year 2, of the
Start-Up Cost for the first two years of the Term. Tenant shall provide Landlord
with a schedule detailing the various components of the Start-Up Cost and their
respective useful lives, certified true and correct by Tenant's chief financial
officer and based on generally accepted accounting principles, consistently
applied, together with Tenant's calculation of the termination fee payable by
Landlord (collectively, the "Schedule"). If such Schedule reflects a Start-Up
Cost that varies materially from the schedule submitted by Tenant pursuant to
Section 54(D), or if Tenant failed to submit such Section 54(D) schedule by the
time Landlord sent the Termination Notice, then Landlord shall have the right to
rescind the Termination Notice within sixty (60) days after receipt of the
Schedule.
(6) The Termination Fee shall decrease by 10% of its initial amount
for each month (appropriately pro rated for any partial month) between the
Termination Date and the date on which Tenant delivers possession of the demised
premises, the Internal MMR Equipment and the External MMR Equipment, all in the
condition required under Section (A), and has complied with its other
obligations under Section (A). For example, if Tenant holds over for one and one
half (1-1/2) months, the Termination Fee is decreased by 15%.
(7) Any portion of the Termination Fee not paid when due shall bear
interest at the Lease Rate from the date due until the date paid.
(8) Notwithstanding anything to the contrary contained in this
Article, Landlord's right to terminate this lease pursuant to this Article shall
be effective only so long as either (a) at least one of Xxxxxxx Xxxxxx, Xxxxxx
Xxxxxx, Xxxxxxx Xxxxx and Xxxxx Xxxxxxx control, whether by contract or
ownership, the management and operation of the Building, or (b) such right is
exercised by a mortgagee or purchaser at foreclosure who has succeeded to the
interest of Landlord.
(9) Landlord shall have no obligation to pay the Termination Fee or
any other amounts referred to in this Article with respect to any termination of
this lease other than a
termination made pursuant to this Article.
(C) (1) If Landlord elects to require that Tenant deliver possession of or
permit Landlord to use any External MMR Equipment, then Landlord shall have the
exclusive use thereof for up to nine (9) months after the Termination Date, and,
in consideration therefor, Landlord shall pay to Tenant the fair market value of
such use (the "FMV"), to be determined by agreement between Tenant and Landlord
or, failing such agreement within thirty (30) days after the Termination Date,
as set forth below. In no event shall the Landlord be required to pay for, nor
shall the FMV include, the value of any equipment, whether or not meeting the
definition of External MMR Equipment, the cost of which was included in the
determination of the Start-Up Cost and, moreover, Landlord shall succeed to
ownership of such equipment without the nine-month limitation. Landlord shall be
entitled to use the External MMR Equipment from and after the Termination Date
even if the payment to be made by Landlord therefor has not yet been determined
or is in dispute.
(2) If Landlord and Tenant cannot reach agreement as to the FMV by the
date that is thirty (30) days after the Termination Date, Landlord and Tenant
shall each select a reputable, qualified, seller or appraiser of equipment of
the type of the External MMR Equipment (such sellers or appraisers are referred
to herein, respectively, as "Landlord's Expert" and "Tenant's Expert"), who
shall confer promptly after their selection by Landlord and Tenant and shall
negotiate in good faith to agree upon the FMV. If Landlord's Expert and Tenant's
Expert cannot reach agreement within sixty (60) days after the Termination Date,
then, no later than the date that is seventy (70) days after the Termination
Date, they shall designate a third reputable, qualified, seller or appraiser of
equipment of the type of the External MMR Equipment (the "Independent Expert").
Concurrently with such appointment, Landlord's Expert and Tenant's Expert shall
each submit a letter to the Independent Expert, with a copy to Landlord and
Tenant, setting forth such Expert's estimate of the FMV (respectively
"Landlord's Expert's Letter" and "Tenant's Expert's Letter").
(3) The Independent Expert shall conduct such investigations as he or
she may deem appropriate and shall, within ten (10) days after the date of his
or her designation, choose either the FMV set forth in Landlord's Expert's
Letter or that set forth in Tenant's Expert's Letter to be the FMV and such
choice shall be binding upon Landlord and Tenant. Landlord and Tenant shall each
pay the fees and expenses of its respective Expert. The fees and expenses of the
Independent Expert shall be shared equally by Landlord and Tenant.
(D) In addition to use of the External MMR Equipment as above provided,
Landlord shall have the right to maintain and to use, with no limitation as to
time, through Tenant's or its Provider's conduit, all interconnections to and
from the demised premises that are in existence as of the Termination Date;
provided, however, that with respect to those interconnections (and only those
interconnections) that were in existence on April 1, 2001, Landlord shall pay to
Tenant a monthly fee equal to the fair market value of such use, determined in
accordance with Section (C). Landlord shall be entitled to use such
interconnections from and after the Termination Date even if the payment to be
made by Landlord therefor has not yet been determined or is in dispute.
(E) If Landlord elects to terminate this lease pursuant to this Article and
either continues operation of the Meet-Me Room itself or leases or licenses the
operation thereof to a third party and requires Tenant to assign to the operator
its then effective Meet-Me Room Licenses, then Landlord shall pay to Tenant an
"Assignment Fee" based on the value of the Meet-Me Room Licenses remaining in
effect after the Termination Date, and depending on when the Termination Date
occurs.
(1) If the Termination Date occurs during Years 1-5:
(a) The Assignment Fee will be paid in six (6) semi-annual
installments, the first of which shall be paid within thirty (30) days after the
Expenses for the Meet-Me Room for the calendar year preceding the Termination
Date, as shown on the Expense Statement for such preceding calendar year, have
been determined (after resolution of any outstanding dispute, as provided in
Section 67(C))(the amount of such Expenses, as so determined, being symbolized
by the letter "E"), and each remaining installment to be paid six (6) months
after the due date of the preceding installment.
(b) Let "T" equal the aggregate amount of the Meet-Me Room Fees
payable under each license or other agreement remaining in effect after the
Termination Date (not including any agreement with Tenant or any Provider as
licensee) for the lesser of (x) the remaining term, from and after the
Termination Date (without renewals) of each such license or agreement or (y)
three (3) years. T will include the amount of any Meet-Me Room Fees that are
allocable to a period after the Termination Date and for which Landlord receives
a credit pursuant to the last two sentences of Section (A). (For example, if two
Meet-Me Room Licenses are in effect after a Termination Date occurring in Year
3, one with five years remaining in its term, with annual Meet-Me Room Fees of
$10,000,000, $20,000,000 $30,000,000, $40,000,000 and $50,000,000 respectively,
allocable to the first, second, third, fourth and fifth years, respectively,
following the Termination Date ("year" for the purpose of this provision meaning
the 365 day period beginning on the Termination Date); and the second with 18
months remaining in its term, with Meet-Me Room Fees of $1,000,000 per month,
then T would be $78,000,000 ($60,000,000 for the first Meet-Me Room License and
$18,000,000 for the second.)
(c) Each of the six installments of the Assignment Fee is equal
to 37.5% of (T/12 minus E/2). The Assignment Fee cannot be a negative number
(but can equal zero).
(d) The following examples illustrate the calculation of the
Assignment Fee:
(i) Assume that T is $48,000,000 and E is $5,000,000. Each
of the six installments of the Assignment Fee would thus be $48,000,000 divided
by 12, or $4,000,000, minus $2,500,000, multiplied by .375, for a total of
$562,500 for each of the six installments.
(ii) If T is $48,000,000 and E is $7,000,000, then each
installment of the Assignment Fee is $187,500.
(2) If the Termination Date occurs during Years 6-10:
(a) The Assignment Fee will be paid in four (4) semi-annual
installments, the first of which shall be paid within thirty (30) days after E
has been determined, and each remaining installment to be paid six (6) months
after the due date of the preceding installment.
(b) Let "T" equal the aggregate amount of the Meet-Me Room Fees
payable under each license or other agreement remaining in effect after the
Termination Date for the lesser of (x) the remaining term, from and after the
Termination Date (without renewals) of each such license or agreement or (y) two
(2) years, subject to the credit provided for in the last two sentences of
Section (A) above.. (Using the previous example, T would be $48,000,000
($30,000,000 for the first Meet-Me Room License and $18,000,000 for the
second.))
(c) Each of the four (4) installments of the Assignment Fee is
equal to 37.5% of (T/8 minus E/2).
(d) The following examples illustrate the calculation of the
Assignment Fee with respect to a termination Date in Years 6-10:
(i) Assume that T is $24,000,000 and E is $3,000,000. Each
of the four installments of the Assignment Fee would thus be $24,000,000 divided
by 8, or $3,000,000, minus $1,500,000, multiplied by .375, for a total of
$562,500 for each of the four installments.
(ii) If T is $24,000,000 and E is $4,000,000, then each
installment of the Assignment Fee is $375,000.
(3) If the Termination Date occurs during Years 11 - Lease Expiration:
(a) The Assignment Fee will be paid in two (2) semi-annual
installments, the first of which shall be paid within thirty (30) days after E
has been determined, and the second to be paid six (6) months after the due date
of the preceding installment.
(b) Let "T" equal the aggregate amount of the Meet-Me Room Fees
payable under each license or other agreement remaining in effect after the
Termination Date for the lesser of (x) the remaining term, from and after the
Termination Date (without renewals) of each such license or agreement or (y) one
(1) year, subject to the credit provided for in the last two sentences of
Section (A) above. (Using the previous example, T would be $22,000,000
($10,000,000 for the first Meet-Me Room License and $12,000,000 for the second.)
(c) Each of the two (2) installments of the Assignment Fee is
equal to 37.5% of (T/4 minus E/2).
(d) The following examples illustrate the calculation of the
Assignment Fee:
(i) Assume that T is $20,000,000 and E is $5,000,000. Each
of the two installments of the Assignment Fee would thus be $20,000,000 divided
by 4, or $5,000,000, minus $2,500,000, multiplied by .375, for a total of
$937,500 for each of the two installments.
(ii) If T is $16,000,000 and E is $7,000,000, then each
installment of the Assignment Fee is $187,500.
(4) Appropriate pro-rations shall be made for Meet-Me Room Licenses
with remaining terms not equal to a whole number of years.
(5) If, between the date on which T is calculated and the date on
which the payment of any installment of the Assignment Fee is due, one or more
of the Meet-Me Room Licenses is cancelled by the licensee for any reason other
than the licensor's failure to perform its obligations thereunder, then the
Assignment Fee shall be recalculated to reflect a new value for T based on the
reduction in Meet-Me Room Fees, any remaining installments of the Assignment Fee
shall be adjusted to reflect such new value, and Landlord shall be entitled to a
credit against the next installment of the Assignment Fee in the amount of any
over-payment of the preceding installment(s) of the Assignment Fee.
(F) Between the date of the Termination Notice and the Termination Date,
Tenant will continue to operate the demised premises in the ordinary course of
business and in good faith in the same fashion as it would have done had
Landlord not terminated this lease.
(G) If Landlord elects to terminate this lease pursuant to this Article and
either continues operation of the Meet-Me Room itself or leases or licenses the
operation thereof to a third party, it will permit Tenant to retain the use of
up to 100 square feet to the extent being used by Tenant in the conduct of its
business as of the date of the Termination Notice, for which Tenant shall pay
the same rate charged to other Meet-Me Room users. In addition, Landlord will
not refuse in a discriminatory manner to permit Tenant to use other Meet-Me Room
Services and facilities from and after the Termination Date.
(H) Within thirty (30) days after the later of the Termination Date and
Tenant's surrender of possession of the demised premises in accordance with this
Article, Landlord will return to Tenant any balance of the Security Deposit to
which Tenant is entitled pursuant to this lease.
73. Waiver of Subrogation
(A) Anything in this lease to the contrary notwithstanding, Landlord and
Tenant shall each, by diligent, good faith efforts, endeavor to secure an
appropriate clause in, or an endorsement upon, each fire or extended coverage or
rent or business interruption 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
issuing such insurance policies waive subrogation or permit the insured, prior
to any loss, to agree with a third party to waive any claim it might have
against such third party. The waiver of subrogation or permission for waiver of
any claim hereinbefore referred to shall extend to (i) the agents of each party
and its employees, (ii) in the case of Tenant, to all other parties occupying or
using the demised premises in accordance with the terms of this lease, and (iii)
in the case of Landlord, to all general and limited partners of Landlord. If and
to the extent that such waiver or permission can be obtained only upon payment
of an additional charge, the party benefiting from the waiver or permission
shall pay such charge upon 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 of this Section (A) relating to such waiver or
permission.
(B) Each party agrees to look first to any insurance in its favor
(including rent loss or business interruption, as the case may be) before making
any claim against the other party for recovery for loss or damage resulting from
fire or other casualty. Subject to Section (A) of this Article, but only insofar
as may be permitted by the provisions of the insurance policies carried by it,
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, damage or destruction with respect to its property by fire or other
casualty (or for rent loss or business interruption) occurring during the Term,
to the extent covered by the insurance that it maintains (or, if greater, that
it was required to maintain pursuant to any other provision of this lease).
74. Exclusive Right; Landlord Cooperation
(A) So long as this lease is in full force and effect and the demised
premises are being operated as a Meet-Me Room, but subject to Tenant's
continuing compliance with Section 66(D), Landlord agrees not to (i) enter into
any new leases, or (ii) amend any existing leases, or (iii) enter into any
license or other agreement, or (iv) except to the extent required by its
existing obligations, consent to a new use under any lease, sublease, license or
other agreement, in each case so as to permit any other space in the Building to
be used as a Meet-Me Room. The obligation of Landlord is limited to not leasing
or consenting to the use of the applicable premises for such purpose or
purposes, and in no event shall Landlord be liable for damages or otherwise in
the event any tenant or subtenant of any other space or any licensee or other
party having an agreement with Landlord shall otherwise engage in such business,
but Landlord will use all commercially reasonable efforts to enforce the
provisions in the leases, licenses or other agreements to which Landlord is a
party that prohibit such use.
(B) Landlord agrees to cooperate with Tenant's reasonable requests in
marketing Tenant's Meet-Me Room to other tenants of the Building, at no expense
to Landlord. Landlord will use good faith efforts to attempt to provide in all
new leases for space in the Building that the tenants thereunder are required to
make all interconnections by way of the Meet-Me Room; provided, however, that so
long as Landlord is acting in good faith Landlord will have no liability nor
shall any of Tenant's obligations under this lease be reduced or affected should
any lease fail so to provide or should Landlord fail to enforce or attempt to
enforce any such provision. Landlord agrees not unreasonably to interfere with
Tenant's Alterations or operations within the demised premises so long as Tenant
is performing its obligations under this lease, subject, however, to the terms
and provisions of this lease and to force majeure.
75. Landlord's Interference with Tenant's Operations
Anything in this lease to the contrary notwithstanding, if, as a result of
Landlord's failure to provide a service that it is obligated to provide under
this lease (whether or not as a result of Landlord's negligence, but not
including failure to provide electricity unless caused by the negligence or
wilful misconduct of Landlord), the entire demised premises or any portion
thereof (other than a de minimis portion) becomes unusable for Tenant's
operation of its business for a period of five (5) consecutive business days
after notice thereof by Tenant to Landlord specifying such failure by Landlord,
then, provided Tenant shall have discontinued the use of the affected portion of
the demised premises for its operations during such period and such
discontinuance thereafter continues, the Fixed Rent and additional rent shall
xxxxx with respect to the affected portion commencing on the sixth (6th)
business day after the giving of the aforesaid notice until the date on which
the affected portion of the demised premises become usable for Tenant's
operations, regardless of any delay by Tenant in resuming such operations.
76. Fuel Tank Space
(A) Landlord shall lease to Tenant and Tenant shall lease from Landlord,
throughout the Term, that portion of the basement of the Building shown hatched
on Exhibit J annexed hereto (the "Basement Space"). The Basement Space may be
used solely for the installation of a fuel tank and equipment related thereto
(collectively, the "Fuel Tank") in compliance with Law. Tenant shall be
responsible, at Tenant's expense, for the construction of a demising wall
separating the Basement Space from the balance of the basement, such wall to be
constructed in compliance with Law and with plans and specifications approved by
Landlord, which approval will not be unreasonably withheld or delayed. Tenant
shall pay Fixed Rent for the Basement Space at the initial rate of $20,050.00
per annum, increasing by two and one-half (2-1/2%) percent thereof, cumulative,
on the first day of each Year, commencing with Year 2, throughout the Term
(which Fixed Rent for the Basement Space shall be in addition to that payable
with respect to the demised premises). To the extent applicable, the Basement
Space shall be deemed to be part of the demised premises and all of the
provisions of the Lease shall be applicable thereto; however, the electrical
capacity to which Tenant is entitled shall not be increased by reason of any
square footage contained in the Basement Space, and Landlord shall not be
required to supply any services whatsoever, including, without limitation, heat
and electricity, to the Basement Space (except that the Basement Space will be
supplied with such electrical capacity, if any, as currently exists therein).
Subject to Tenant's compliance with all applicable provisions of this lease,
including, without limitation, Landlord's approval of the plans and
specifications therefor, which approval will not be unreasonably withheld or
delayed, Landlord approves, in principle, Tenant's performance of such
Alterations as may be necessary to bring required services to the Basement
Space, as well as such Alterations as may be necessary to connect the equipment
therein or thereon to the demised premises. At the expiration or sooner
termination of the Term, Tenant hereby agrees to remove all equipment and other
property (including, without limitation, the Fuel Tank) from the Basement Space.
Tenant further agrees to
repair any damage to the Basement Space caused by Tenant's use of such spaces
or its removal of such equipment and property and to indemnify and save harmless
Landlord from and against all loss, damage, liability, cost and expense of any
nature (including, without limitation, reasonable attorneys' fees and expenses)
by reason of accidents, damage, injury or loss to any and all persons and
property, or either, whosoever or whatsoever resulting from or arising in
connection with Tenant's use of such space, except to the extent caused by
Landlord's negligence or wilful misconduct or that of Landlord's employees or
agents.
(B) Landlord makes no representations concerning the condition of the
Basement Space or the equipment, if any, located thereon. Tenant agrees to
accept the Basement Space in its "as is" condition on the date hereof. Landlord
shall not be required to perform any work to prepare the Basement Space for
Tenant's occupancy.
(C) Tenant may use the Fuel Tank to service both the demised premises and
the space on the 19th floor of the Building leased to Tenant or Tenant's
affiliate pursuant to the lease dated February 17, 1998, as amended (the "19th
Floor Lease"). If Landlord terminates this lease pursuant to Article 73,
Landlord will either permit Tenant (or its affiliate who is then the tenant
under the 19th Floor Lease) to retain the Basement Space on the terms above set
forth, or will provide alternative space for the installation of a fuel tank on
similar terms and conditions for the balance of the term of the 19th Floor
Lease.
77. Miscellaneous
(A) Supplementing Article 13, Landlord agrees to consult with Tenant in
good faith in connection with the location of any water pipes that Landlord may
wish to install through the premises so as to minimize the potential for any
damage to Tenant's equipment.
(B) Landlord agrees to provide to Tenant, simultaneously with its execution
and delivery of this lease and thereafter upon Tenant's request made at not
unreasonably frequent intervals, a letter in substantially the form annexed as
Exhibit K to facilitate Tenant's financings.
(C) Landlord's interest in the demised premises derives under a lease
between it as tenant and Xxxxxx Telegraph Associates, L.P. ("Overlandlord") as
landlord dated simultaneously herewith. Tenant and Overlandlord (which is also
the ground lessor of the Building) are entering into a consent, subordination,
non-disturbance and attornment agreement in the form of Exhibit L simultaneously
herewith with respect to Overlandlord's positions as overlandlord and as ground
lessor. Any subordination of this lease to any future ground or underlying lease
shall be conditioned upon Landlord obtaining, for Tenant's benefit, a
subordination, non-disturbance and attornment agreement from the ground or
underlying lessor in the form of Exhibit L or in such other form as shall be
reasonably acceptable to Tenant.
(D) Tenant acknowledges having been advised by Landlord that it will be
necessary for Landlord to plate the ceiling of the demised premises (the
"Plating Work") to protect against interference from the electrical vaults.
Landlord will commence the Plating Work (at Landlord's expense) prior to or
reasonably promptly after the execution and exchange of this lease and will
prosecute the same with reasonable diligence and continuity thereafter,
side-by-side with Tenant's initial Alterations. Landlord and Tenant will
cooperate with each other in the scheduling and performance of their respective
work toward the end that there shall be as little delay as practicable in the
completion of Tenant's work (Tenant hereby acknowledging that it has requested
that Landlord delay commencement of the Plating Work pending further advice from
Tenant and that Landlord's agreement to do so will not constitute a delay for
purposes of the following sentence). If, however, as the sole result of the
Plating Work, Tenant is delayed in its completion of its initial Alterations or
in its ability to commence operations in the demised premises, then (i) Fixed
Rent shall xxxxx by one (1) day for each day within the period of such delay,
and (ii) the Phase 1 Date shall be delayed by one (1) day for each day of such
delay.
AMENDMENT OF LEASE
AGREEMENT dated as of this 30th day of January, 2002 between WESTPORT
COMMUNICATIONS, LLC, a Delaware limited liability company, having an office at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and FIBERNET TELECOM
GROUP, INC., a Delaware corporation, having an address at 000 Xxxxxxxxx Xxxxxx,
Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into an agreement of lease dated as of
April 1, 2001 (the "Existing Lease"), pursuant to which Landlord now leases to
Tenant and Tenant now leases from Landlord a portion of the ground floor more
particularly described in the Lease in the building known as 00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx ("Building"); and
WHEREAS, Landlord and Tenant wish to amend the Existing Lease as set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, Landlord and Tenant agree that the Existing Lease is hereby
modified as follows:
1. All defined terms used herein shall have the meanings ascribed to them
in the Existing Lease unless otherwise defined herein. The Existing Lease, as
amended by this Agreement and as the same may be hereafter amended, is
hereinafter referred to as the "Lease".
2. Section 66(A)(2) of the Existing Lease is hereby amended by adding the
following:
"Notwithstanding anything to the contrary herein contained, Tenant shall
have the right to add language to the Meet-Me Room License granting the
licensee the right without the obligation of obtaining Tenant's or
Landlord's prior approval to assign or transfer such Meet-Me Room License
to (i) any party controlling, controlled by or under common control with
the licensee ("control" and its variants meaning ownership of more than
fifty percent (50%) of the equity interests in the party in question), (ii)
any purchaser of all or substantially all of the licensee's assets, (iii)
any entity that is a successor to the licensee either by merger or
consolidation, provided, however, that (x) the net worth of the entity
constituting the licensee after the consummation of the transaction in
question is not less than that of the licensee immediately prior thereto,
and (y) that the entity constituting the licensee after the consummation of
the transaction in question has experience in the telecommunications
industry at least equal to that of the licensee immediately prior thereto,
and (z) the entity constituting the licensee after the consummation of the
transaction in question is not an entity, or affiliated with an entity,
with respect to which Landlord theretofore denied approval of the issuance
of a Meet-Me Room License. The licensee shall be required to deliver to
Landlord and to Tenant copies of all documentation relevant to the
transaction in question, as well as substantiation of the satisfaction of
conditions set forth in this paragraph reasonably satisfactory to Landlord,
within ten (10) days after the effective date of such transaction. If
Landlord approves any Meet-Me-Room License with the above referenced or
similar language, Tenant shall have no further obligation to secure
Landlord's prior approval with respect to any assignment or transfer of
such Meet-Me Room License to a qualifying assignee or transferee."
3. Section 66(B) of the Existing Lease is hereby amended by striking the
second sentence thereof and replacing such sentence with the following:
"Notwithstanding anything to the contrary herein contained, Tenant shall have
the right to
perform reasonable advertising and to utilize reasonable promotional materials
relating to the demised premises without the prior approval of Landlord.
Additionally, Tenant shall have the right to add language to the Meet-Me-Room
License granting the licensee the right to perform reasonable advertising and to
utilize reasonable promotional materials related to the demised premises without
the prior approval of Tenant or Landlord. In each such case all such advertising
and promotional materials must be accurate in all respects and not misleading
when taken as a whole, particularly with respect to the role of Tenant as
operator of the Meet-Me Room as opposed to as owner of the Building and with
respect to the role of the licensee as licensee and not as owner of the Building
or operator of the Meet-Me Room."
4. Except as modified by this Agreement, the Existing Lease and all
covenants, agreements, terms and conditions thereof shall remain in full force
and effect and the Existing Lease, as so modified, is hereby ratified and
confirmed.
5. The covenants, agreements, terms and conditions contained in this
Agreement shall bind and inure to the benefit of the parties hereto and their
respective successors and, except as otherwise provided in the Lease, their
respective assigns.
6. This Agreement may not be challenged orally, but only by a writing
signed by the party against whom enforcement is sought.
7. The submission of this Agreement to Tenant shall not constitute an offer
by Landlord to execute and exchange this Agreement with Tenant and is made
subject to Landlord's acceptance, execution and delivery hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
WESTPORT COMMUNICATIONS, LLC
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
FIBERNET TELECOM GROUP, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
By its execution below, the undersigned acknowledges its consent to this
Agreement.
XXXXXX TELEGRAPH ASSOCIATES, L.P., a New York
limited partnership, Overlandlord
By: Sixty Xxxxxx Management LLC
-2-
By:
-------------------------------------
Name: , Manager
------------------------
-3-
AMENDMENT OF LEASE
AGREEMENT dated as of this 7th day of November, 2002 between WESTPORT
COMMUNICATIONS, LLC, a Delaware limited liability company, having an office at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and FIBERNET EQUAL
ACCESS, LLC, a New York limited liability company, having an address at 000
Xxxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and FiberNet Telecom Group, Inc., Tenant's predecessor,
entered into an agreement of lease dated as of April 1, 2001 (the tenant's
interest in which was assigned to Tenant by assignment dated as of April 1, 2001
and amended by agreement (the "First Amendment") dated as of January 30, 2002
(as so amended, the "Existing Lease"), pursuant to which Landlord now leases to
Tenant and Tenant now leases from Landlord a portion of the ground floor more
particularly described in the Lease in the building known as 00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx ("Building"); and
WHEREAS, Landlord and Tenant wish to amend the Existing Lease as set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
hereinafter contained, Landlord and Tenant agree that the Existing Lease is
hereby amended as follows:
8. All terms contained in this Agreement shall, for the purposes hereof,
have the same meanings ascribed to them in the Existing Lease unless otherwise
defined herein. As used herein, the term "Lease" shall mean the Existing Lease
as amended by this Agreement and as the same may be hereafter amended.
9. (A) Landlord has approved the water-cooled supplemental air
conditioning system with a capacity of ninety (90) tons (the "Supplemental
System") installed by Tenant. Subject to all applicable provisions of the Lease
(including specifically, but without limitation, Article 27), Landlord agrees to
reserve for Tenant's use the condenser water necessary to operate the
Supplemental System.
(B) Commencing as of May 1, 2002, Tenant shall pay Landlord a charge
in the initial amount of $90,000.00 ($1,000.00 per ton) per annum ("Condenser
Water Charge") for condenser water reserved for Tenant's use pursuant to
subparagraph (A) hereinabove. On January 1, 2003, and on each January 1
thereafter throughout the Term, the Condenser Water Charge will increase by two
and one-half (2-1/2%) percent of the Condenser Water Charge in effect on the
immediately preceding day. The Condenser Water Charge shall be paid in twelve
(12) equal monthly installments, on the first day of each month during the Term,
as additional rent.
(C) Tenant shall, at its expense, make all necessary repairs and
perform all necessary maintenance work to maintain the Supplemental System in
working order and condition.
10. The parties acknowledge and agree that the incorrect space was
identified as the Basement Space in the Existing Lease. Consequently, the space
shown cross-hatched on Exhibit A annexed hereto, located in the basement of the
Building, is hereby substituted for the space shown on Exhibit J to the Existing
Lease. Fixed Rent for the Basement Space remains as set forth in the Existing
Lease.
11. Landlord acknowledges receipt of (i) Fixed Rent payable pursuant to the
Lease to and including April 30, 2002 (not including Fixed Rent for the Basement
Space) and (ii) all
additional rent payable pursuant to the Lease that has been billed to date
except for arrears in the aggregate amount of $33,647.05 as set forth in Exhibit
B annexed hereto. By check subject to collection being delivered simultaneously
herewith, Tenant is paying such arrears and Fixed Rent for the Basement Space
payable to and including April 30, 2002 in the amount of $10,025.00 (for a total
of $43,672.05).
12. Tenant has delivered to Landlord original counterparts of lien waivers
with respect to all construction theretofore performed by or on behalf of Tenant
in the Building (including, without limitation, Phase 1) with the exception of
O'Hara Contracting. Tenant covenants that it will obtain a bond protecting
Landlord against any mechanics lien filed by O'Hara Contracting.
13. Provided and upon condition that no default on Tenant's part shall
occur which continues after any applicable notice and/or cure period, Fixed Rent
for Year 2 (not including Fixed Rent for the Basement Space, which is not being
reduced) shall be reduced to $1,052,675.00 per annum. If after the date of this
Agreement a default exists which is not cured within the applicable notice
and/or cure period, then (i) Fixed Rent for Year 2 shall immediately
retroactively be increased to its original amount of $4,202,675.00 per annum
(not including Fixed Rent for the Basement Space), and (ii) Tenant shall within
five (5) business days pay to Landlord any Fixed Rent in arrears by reason of
such retroactive increase.
14. In lieu of Percentage Rent and Transport Fee Rent for the three-month
period beginning January 1, 2003 and ending on March 31, 2003, Tenant will pay
to Landlord one-half (1/2) of the Meet-Me Room Fees and twelve (12%) percent of
the Transport Fees received by Tenant which are allocable to such three-month
period. Payments under this Paragraph will be due and payable monthly in arrears
on or before the last day of the succeeding month. The provisions of Articles 67
and 68 of the Existing Lease regarding reports, record-keeping, audits and
interest on incorrect payments shall be applicable to payments due under this
Paragraph.
15. Tenant hereby waives its right to the scheduled $1,000,000.00 reduction
in the Security Deposit pursuant to clause (x) of Section 60(B) of the Existing
Lease (which Landlord acknowledges Tenant has met the conditions to receipt of),
and authorizes and directs Landlord to make partial draws upon the Letter of
Credit (or to apply the Security Deposit, if the Security Deposit is not in the
form of a Letter of Credit) to pay (i) Fixed Rent first becoming due under the
Lease with respect to the period beginning May 1, 2002 and ending March 31, 2003
and (ii) $75,000 to reimburse Landlord for one-half of the reasonable
out-of-pocket cost of Landlord's Work, which Tenant acknowledges is due and
owing to Landlord. In no event shall Landlord apply more than $1,000,000.00 of
the Security Deposit pursuant to this Paragraph 8, but this sentence shall not
serve to limit Landlord's right to draw upon the Letter of Credit or apply the
Security Deposit as otherwise provided in the Lease. All amounts owing under the
Lease not paid out of the Security Deposit shall be paid by Tenant to Landlord
when due. Notwithstanding anything to the contrary contained in the Lease,
Tenant shall not be required to replenish the Security Deposit with respect to
applications of the Security Deposit made pursuant (but only made pursuant) to
this Paragraph 8.
16. The covenants, agreements, terms and conditions contained in this
Agreement shall bind and inure to the benefit of the parties hereto and their
respective successors, and, except as otherwise provided in the Lease, their
respective assigns.
17. Except as amended by this Agreement, the Existing Lease and all
covenants, agreements, terms and conditions thereof shall remain in full force
and effect and the Existing Lease, as so amended, is hereby in all respects
ratified and confirmed. This Agreement
-5-
represents the entire understanding and agreement of the parties with respect to
the subject matter hereof.
18. Tenant covenants, represents and warrants that Tenant has had no
dealings or communications with any broker or agent in connection with the
consummation of this Agreement other than Xxxxxxxx Real Estate Co. Inc. (the
"Broker") and Tenant covenants and agrees to indemnify Landlord from and against
all costs, expenses (including reasonable attorneys' fees and disbursements) and
liability for any commission or other compensation claimed by any broker or
agent (other than the Broker) with respect to this Agreement. Landlord shall pay
any commission due to Broker on account of the execution of this Agreement. This
Paragraph shall survive the termination of this Agreement.
19. This Agreement may not be changed orally, but only by a writing signed
by the party against whom enforcement thereof is sought.
20. The submission of this Agreement to Tenant shall not constitute an
offer by Landlord to execute and exchange this Agreement with Tenant and is made
subject to Landlord's acceptance, execution and delivery thereof.
21. Landlord and Fibernet Telecom Group, Inc. were parties to the First
Amendment notwithstanding that at the time the First Amendment was executed, the
tenant's interest in the Lease had been assigned to Tenant. Tenant and Landlord
hereby ratify and confirm the First Amendment as if they had been the parties
thereto.
-6-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
WESTPORT COMMUNICATIONS, LLC
By:
-----------------------------------------
Name:
Title:
FIBERNET EQUAL ACCESS, LLC
By:
-----------------------------------------
Name:
Title:
By its execution below, the undersigned acknowledges its consent to this
Agreement.
XXXXXX TELEGRAPH ASSOCIATES, L.P., a New York
limited partnership, Overlandlord
By: Sixty Xxxxxx Management LLC
By:
--------------------------------------
Name: , Manager
------------------------
By its execution below, the undersigned acknowledges its agreement to be bound
by this Agreement and the First Amendment jointly and severally with Tenant.
FIBERNET TELECOM GROUP, INC.
By:
-----------------------------------------
Name:
Title:
-7-
AMENDMENT OF LEASE
AGREEMENT dated as of April 1, 2003 between WESTPORT COMMUNICATIONS, LLC, a
Delaware limited liability company, having an office at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Landlord"), and FIBERNET EQUAL ACCESS, LLC, a New York
limited liability company, having an address at 000 Xxxxxxxxx Xxxxxx, Xxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and FiberNet Telecom Group, Inc., Tenant's predecessor,
entered into an agreement of lease dated as of April 1, 2001 (the "Original
Lease") (the tenant's interest in which was assigned to Tenant by assignment
dated as of April 1, 2001) and amended by agreements dated as of January 30,
2002 and November 7, 2002 (as so amended, the "Existing Lease"), pursuant to
which Landlord now leases to Tenant and Tenant now leases from Landlord a
portion of the ground floor and a portion of the basement more particularly
described in the Existing Lease in the building known as 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx; and
WHEREAS, Landlord and Tenant wish to amend the Existing Lease as set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
hereinafter contained, Landlord and Tenant agree that the Existing Lease is
hereby amended as follows:
22. All terms contained in this Agreement shall, for the purposes hereof,
have the same meanings ascribed to them in the Existing Lease unless otherwise
defined herein. As used herein, the term "Lease" shall mean the Existing Lease
as amended by this Agreement and as the same may be hereafter amended.
23. (A) For the purposes of this Agreement, the following definitions shall
apply:
(1) "FiberNet Entity" means each of Tenant, FiberNet Telecom
Group, Inc. ("FTG") and their respective direct or indirect subsidiaries
("subsidiary" for this purpose meaning any entity in which Tenant or FTG has a
direct or indirect equity interest of at least 50%);
(2) "FiberNet Entity Agreement" means any material agreement to
which any FiberNet Entity is a party in the capacity of borrower or debtor;
(3) "FiberNet Event of Default" means the occurrence of an "Event
of Default" on the part of a FiberNet Entity under and as defined in a FiberNet
Entity Agreement, or (if the term "Event of Default" is not defined in any such
FiberNet Entity Agreement) the occurrence of any default on the part of a
FiberNet Entity under such FiberNet Entity Agreement which continues after the
giving of any required notice and the lapse of any applicable cure period
provided for in such FiberNet Entity Agreement;
(4) "CEO Event" means the failure by Xxxxxxx Xxxx to hold and
fulfill the title, responsibilities and authority of the Chief Executive Officer
of FTG, other than solely by reason of his death or disability;
(5) "Abatement Default" means the occurrence of (i) a default
under the Lease which continues after any applicable notice and/or cure period,
(ii) a FiberNet Event of Default, or (iii) a CEO Event; and
(6) "End Date" means the last day of the first 12-month period in
which either (i) Meet-Me Room Fees plus Transport Fees equal at least
$1,800,000.00, or (ii) gross revenues from operations for all FiberNet Entities
combined ("FiberNet Revenues") equal
at least $37,000,000.00. Tenant shall submit to Landlord, within ten (10)
business days after written request from Landlord, such financial statements and
other data as may be reasonably necessary to monitor such Meet-Me Room Fees,
Transport Fees and FiberNet Revenues (in addition to the records required to be
submitted to Landlord under the provisions of the Original Lease).
(B) Tenant represents that there is no FiberNet Entity Agreement
presently existing other than the Amended and Restated Credit Agreement, as
amended, among FiberNet Operations, Inc., Devnet L.L.C., Deutsche Bank AG New
York Branch, as Administrative Agent, et al. (the "DB Agreement"), a true copy
of which Tenant represents has been furnished to Landlord. Tenant covenants that
it will (i) advise Landlord whenever it files a report on Form 10K, 10Q or 8K
with the Securities and Exchange Commission at the same time such report is so
filed, (ii) notify Landlord of any FiberNet Event of Default promptly after the
occurrence thereof, simultaneously furnish Landlord with a copy of any notice
initiating such FiberNet Event of Default, and provide to Landlord a copy of any
publicly filed report in connection therewith at the same time such report is
filed, (iii) provide copies of any Non-Confidential material amendments to the
DB Agreement promptly after the execution thereof, and (iv) notify Landlord of
any additional FiberNet Entity Agreements or amendments to any thereof and
promptly provide Landlord with copies thereof, to the extent Non-Confidential.
"Non-Confidential" means any agreement which is publicly filed or which is not
made confidential by its own commercially reasonable terms.
(C) The occurrence of a FiberNet Event of Default or a CEO Event prior
to the End Date shall, at Landlord's option, constitute an immediate default
under the Lease, as to which there shall be no notice required nor any
opportunity to cure on Tenant's part, and which shall permit Landlord
immediately to exercise all rights it may have pursuant to Articles 17 or 18 of
the Lease or otherwise available to Landlord pursuant to the Lease or at law or
in equity or by statute.
(D) Provided and upon condition that no Abatement Default occurs,
then, for the period beginning as of April 1, 2003 and continuing until the End
Date, Fixed Rent (not including Fixed Rent for the Basement Space, which is not
being reduced) shall be as set forth in subparagraph (E) below. At such time as
the End Date or an Abatement Default occurs, then, at Landlord's option, (i)
Fixed Rent (not including Fixed Rent for the Basement Space) shall immediately
be increased to its original amount as set forth in the Original Lease from and
after the occurrence of the End Date or such Abatement Default, and (ii) Tenant
shall, within five (5) business days after the occurrence of an Abatement
Default, pay to Landlord the lesser of $2,000,000.00 or the aggregate amount of
the reductions in Fixed Rent theretofore taken by Tenant pursuant to this
Paragraph. Tenant acknowledges that it is of the utmost importance to Landlord
and the well-being of the other tenants of the Building utilizing the Meet-Me
Room that the current chief executive officer of FTG maintain his leadership
role over the FiberNet Entities and that the FiberNet Entities maintain their
financial stability; that the provisions of this subparagraph were a material
inducement to Landlord to enter into this Agreement; that the failure of the
current chief executive officer of FTG to maintain his leadership role and/or of
FiberNet to maintain its financial stability will cause Landlord material and
substantial damage which cannot easily be calculated; and that therefore the
provisions of this subparagraph are fair and reasonable.
(E) Fixed Rent (not including Fixed Rent for the Basement Space) shall
be as set forth below for the period from April 1, 2003 (which is the first day
of Year 3) until the End Date, subject, however, to the provisions of
subparagraph 2(D):
-9-
Period Fixed Rent (per annum)
------- ----------------------
Year 3 $1,078,992.00
Year 4 $1,105,967.00
Year 5 $1,133,616.00
Year 6 $1,161,956.00
Year 7 $1,191,005.00
Year 8 $1,220,780.00
Year 9 $1,251,300.00
Year 10 $1,282,582.00
Year 11 $1,314,647.00
Year 12 $1,347,513.00
Year 13 $1,381,201.00
Year 14 $1,415,731.00
Year 15 $1,451,124.00
24. In lieu of Percentage Rent for the period beginning on April 1, 2003
and ending on the End Date (or the date on which Fixed Rent is restored to the
amount payable under the Original Lease pursuant to subparagraph 2(D)), Tenant
will pay to Landlord fifty (50%) percent of the Meet-Me Room Fees received by
Tenant which are allocable to such period. Payments under this Paragraph will be
due and payable quarterly in arrears within forty-five (45) days following the
end of each calendar quarter. The provisions of Article 67 of the Original Lease
regarding reports, record-keeping, audits and interest on incorrect payments
shall be applicable to payments due under this Paragraph. On the day immediately
following the End Date (or the date on which Fixed Rent is restored to the
amounts payable under the Original Lease pursuant to subparagraph 2(D)), all
provisions of Article 67 of the Original Lease shall once again apply. The
provisions of Article 68 of the Original Lease shall continue to apply from and
after April 1, 2003 and shall not be affected by this Agreement except to the
extent provided in Paragraph 4.
25. Notwithstanding anything to the contrary contained herein or in the
Existing Lease, Landlord may elect, upon notice to Tenant, to defer payment of
any amounts becoming due under Articles 67 and 68 of the Original Lease or under
Paragraph 3 of this Agreement, which amounts shall nonetheless be considered to
be accrued additional rent covered by the provisions of the Lease applicable to
the Security Deposit. Amounts deferred at the option of Landlord shall not bear
interest during the period of the Landlord-initiated deferral.
26. Tenant acknowledges that it has no present right to reduce the amount
of the Security Deposit below its current level of $4,350,000.00. Tenant will be
permitted to reduce the amount of the Security Deposit to $3,500,000.00 at such
time as (i) it has completed and fully paid for the entire construction and
equipping of the Meet-Me Room and has obtained all required permits and
approvals therefor, (ii) the Meet-Me Room is fully operational, and (iii) there
are no liens filed with respect to such work; provided that (x) as of the date
of reduction, no Abatement Default had occurred (after the date of this
Agreement) and (y) on such date no
-10-
monetary or material non-monetary default exists under the Lease.
Notwithstanding the provisions of Section 60(B) of the Original Lease, in no
event shall the Security Deposit be reduced below $3,500,000.00.
27. (A) In consideration for the Fixed Rent reductions provided for in this
Agreement, Article 72 of the Original Lease is deleted in whole and the
following is substituted therefor:
"72. Landlord's Right To Terminate Lease
(A) Landlord shall have the right, at any time, for any reason or
for no reason, at its sole discretion, by giving notice (the "Termination
Notice") to Tenant, to terminate this lease as set forth in this Article
with the same effect as if the effective date of such termination were the
Expiration Date. The right contained in this Article is in addition to, and
not a replacement for, Landlord's rights to terminate this lease elsewhere
provided for herein by reason of Tenant's default or otherwise. If Landlord
exercises its right to terminate this lease under this Article, Tenant
shall, on or before the Termination Date (as hereinafter defined), vacate
and surrender possession of the demised premises and all trade fixtures,
equipment and personal property therein (the "Internal MMR Equipment") to
Landlord in good order and condition (except for reasonable wear and tear
and damage caused by casualty not required by this lease to be repaired by
Tenant), and also including, unless and to the extent Landlord otherwise
specifies in the Termination Notice, the right to use, as provided in
Section (C), those trade fixtures, equipment and other personal property
located anywhere in the Building (including on the roof or set-backs
thereof), but not in the demised premises, that are required to operate the
demised premises as a Meet-Me Room (collectively, the "External MMR
Equipment"), which delivery and right to use shall be free and clear of all
liens, encumbrances, rights, privileges, tenancies, occupancies and rights
of occupancy of any kind whatsoever (other than Meet-Me Room Licenses). The
External MMR Equipment does not include any equipment located in or
servicing the space subject to the 19th Floor Lease that is not necessary
to operate the demised premises as a Meet-Me Room in the manner in which it
was being operated by Tenant prior to delivery of the Termination Notice.
In addition, unless and to the extent Landlord otherwise specifies in the
Termination Notice, Tenant shall unconditionally assign (or cause to be
assigned) to Landlord all Meet-Me Room Licenses and other agreements to
which it or any Provider may be a party relating to the demised premises.
Tenant will also deliver to Landlord original counterparts of all such
assigned Meet-Me Room Licenses and other agreements and originals or
photocopies of all relevant correspondence. Tenant shall pay to Landlord,
promptly after the amount thereof has been determined, the amount of any
Meet-Me Room Fees and Transport Fees under Meet-Me Room Licenses and other
agreements so assigned to Landlord that are allocable to any period after
the Termination Date.
(B) Landlord's right to terminate this lease pursuant to this
Article shall be subject to the following conditions:
(1) In order to terminate this lease pursuant to this
Article, Landlord shall deliver the Termination Notice to Tenant specifying
the effective date of the termination (the "Termination Date"), which
Termination
-11-
Date shall be not less than ninety (90) days after the date of the
Termination Notice.
(2) Notwithstanding anything to the contrary contained in
this Article, Landlord's right to terminate this lease pursuant to this
Article shall be effective only so long as either (a) at least one of
Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx Xxxxx and Xxxxx Xxxxxxx control,
whether by contract or ownership, the management and operation of the
Building, or (b) such right is exercised by a mortgagee or purchaser at
foreclosure who has succeeded to the interest of Landlord.
(C) If Landlord elects to require that Tenant permit Landlord to
use any External MMR Equipment, then Landlord shall have the exclusive use
thereof for up to nine (9) months after the Termination Date, at no charge.
(D) In addition to use of the External MMR Equipment as above
provided, Landlord shall have the right to maintain and to use, with no
limitation as to time, through Tenant's or its Provider's conduit, all
interconnections to and from the demised premises that are in existence as
of the Termination Date; provided, however, that Landlord's right to use,
free of charge, the fiber infrastructure installed pursuant to the 19th
Floor Lease, as approved by Landlord, shall be limited to nine (9) months
after the Termination Date.
(E) Between the date of the Termination Notice and the
Termination Date, Tenant will continue to operate the demised premises in
the ordinary course of business and in good faith in the same fashion as it
would have done had Landlord not terminated this lease.
(F) If Landlord elects to terminate this lease pursuant to this
Article and either continues operation of the Meet-Me Room itself or leases
or licenses the operation thereof to a third party, it will permit Tenant
to retain the use of up to 100 square feet to the extent being used by
Tenant in the conduct of its business as of the date of the Termination
Notice, for which Tenant shall pay the same rate charged to other Meet-Me
Room users. In addition, Landlord will not refuse in a discriminatory
manner to permit Tenant to use other Meet-Me Room Services and facilities
from and after the Termination Date.
(G) Within thirty (30) days after the later of the Termination
Date and Tenant's surrender of possession of the demised premises in
accordance with this Article, Landlord will return to Tenant any balance of
the Security Deposit to which Tenant is entitled pursuant to this lease."
(B) If the End Date occurs and Tenant timely pays Fixed Rent in
accordance with the Original Lease for two (2) years thereafter then, upon the
end of such two-year period, provided that (x) as of such date, no Abatement
Default had occurred (after the date of this Agreement) and (y) on such date no
monetary or material non-monetary default exists under the Lease, Article 72 of
the Original Lease shall thereupon be reinstated and the provisions of
subparagraph (A) of this Paragraph 6 shall be void and of no further effect.
28. Tenant agrees to reimburse Landlord, within ten (10) days after demand,
for (i) Landlord's documented out-of-pocket legal fees and disbursements
incurred in connection with the preparation and negotiation of this Agreement,
and (ii) Landlord's documented out-of-pocket expenses incurred to confirm that
there are no liens of record with respect to work contracted for
-12-
or on behalf of Tenant, not to exceed $20,000.00 in the aggregate.
29. The covenants, agreements, terms and conditions contained in this
Agreement shall bind and inure to the benefit of the parties hereto and their
respective successors, and, except as otherwise provided in the Lease, their
respective assigns.
30. Except as amended by this Agreement, the Existing Lease and all
covenants, agreements, terms and conditions thereof shall remain in full force
and effect and the Existing Lease, as so amended, is hereby in all respects
ratified and confirmed. This Agreement represents the entire understanding and
agreement of the parties with respect to the subject matter hereof.
31. Tenant covenants, represents and warrants that Tenant has had no
dealings or communications with any broker or agent in connection with the
consummation of this Agreement other than Xxxxxxxx Real Estate Co. Inc. (the
"Broker") and Tenant covenants and agrees to indemnify Landlord from and against
all costs, expenses (including reasonable attorneys' fees and disbursements) and
liability for any commission or other compensation claimed by any broker or
agent (other than the Broker) with respect to this Agreement. Landlord shall pay
any commission due to Broker on account of the execution of this Agreement. This
Paragraph shall survive the termination of this Agreement.
32. This Agreement may not be changed orally, but only by a writing signed
by the party against whom enforcement thereof is sought.
33. The submission of this Agreement to Tenant shall not constitute an
offer by Landlord to execute and exchange this Agreement with Tenant and is made
subject to Landlord's acceptance, execution and delivery thereof.
[balance of page intentionally left blank]
-13-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
WESTPORT COMMUNICATIONS, LLC
By:
-----------------------------------------
Name:
Title:
FIBERNET EQUAL ACCESS, LLC
By:
-----------------------------------------
Name:
Title:
By its execution below, the undersigned acknowledges its consent to this
Agreement.
XXXXXX TELEGRAPH ASSOCIATES, L.P., a New York
limited partnership, Overlandlord
By: Sixty Xxxxxx Management LLC
By:
--------------------------------------
Name: , Manager
------------------------
By its execution below, the undersigned acknowledges its agreement to be bound
by this Agreement and the Existing Lease jointly and severally with Tenant.
FIBERNET TELECOM GROUP, INC.
By:
-----------------------------------------
Name:
Title:
-14-
