1
Exhibit 10.1
AGREEMENT OF LEASE, made as of this _________ day of February 1999,
between R.A.A. REALTY COMPANY LP party of the first part, hereinafter referred
to as OWNER, and MEDSCAPE INC. party of the second part, hereinafter referred to
as TENANT,
W I T N E S S E T H :
Owner hereby leased to tenant and tenant hereby hires from Owner ENTIRE
SECOND FLOOR AS PER EXHIBIT A ANNEXED HERETO. OWNER SHALL NOT HAVE THE _________
TO RELOCATE THE TENANT TO ANOTHER PREMISES FOR ANY REASON in the building known
as 000 Xxxx 00xx Xxxxxx in the Borough of Manhattan, City of New York, for the
term of FIVE (5) YEARS AND FOUR (4) MONTHS (or until such term shall sooner
cease and expire as hereinafter provided) to commence on the 1st day of March
nineteen hundred and ninety-nine, and to end on the 30th day of June, two
thousand and four and both dates inclusive, at an annual rental rate of as per
Article 41 of Rider annexed hereto 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, 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).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with
2
Owner or with Owner's predecessor in interest, Owner may at Owner's option and
without notice to Tenant add the amount of such arrears to any monthly
installment of rent payable hereunder and the same shall be payable to Owner as
additional rent.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
RENT: 1. Tenant shall pay the rent as above and as hereinafter provided.
OCCUPANCY: 2. Tenant shall use and occupy demised premises for general and
executive offices provided such use is in accordance with the certificate of
occupancy for the building, if any, and for no other purpose.
ALTERATIONS: 3. Tenant shall make no changes in or to the demised premises of
any nature without Owner's prior written consent. Subject to the prior written
consent of Owner, and to the provisions of this article, Tenant, at Tenant's
expense, may make alterations, installations, additions or improvements which
are nonstructural and which do not affect utility services or plumbing or
electrical lines, in or to the interior of the demised premises using
contractors or mechanics first approved in each instance by Owner, not to be
unreasonably with-held. Tenant shall, at its expense, before making any
alterations, additions, installations or improvements obtain all permits,
approvals and certificates required by any governmental or quasi-governmental
bodies and (upon completion) certificates of final approval thereof and shall
deliver promptly duplicates of all such permits, approvals and certificates to
Owner. Tenant agrees to carry and will cause Tenant's contractors and
sub-contractors to carry such xxxxxxx'x compensation, general liability,
personal and property damage insurance as Owner may reasonably require. If any
mechanic's lien is filed against the demised premises, or the building of which
the same forms a
2
3
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 One hundred twenty (120) days thereafter, at Tenant's expense, by
payment or filing the bond required by law or otherwise. 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 demised premises by Tenant
prior to the expiration of 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 removed from the
premises by Owner, at Tenant's expense.
3
4
REPAIRS:* 4. Owner shall maintain and repair the exterior of and the public
portions of the building. Tenant shall, throughout the term of this lease, take
good care of the demised premises including the bathrooms and lavatory
facilities (if the demised premises encompass the entire floor of the building)
and the windows and window frames and, the fixtures and appurtenances therein
and at Tenant's sole cost and expense promptly make all repairs thereto and to
the building, whether structural or non structural in nature, caused by or
resulting from the carelessness, omission, neglect or improper conduct of
Tenant, Tenant's servants, employees, or licensees, arising from such Tenant
conduct or omission, when required by other provisions of this lease, including
Article 6. Tenant shall also repair all damage to the building and the demised
premises caused by the moving of Tenant's fixtures, furniture or equipment. All
the aforesaid repairs shall be of quality or class equal to the original work or
construction. If Tenant fails, after ten days notice, to proceed with due
diligence to make repairs required to be made by Tenant, the same may be made by
the Owner at the expense of Tenant, and the expenses thereof incurred by Owner
shall be collectable, as additional rent, after rendition of a xxxx or statement
therefor. If the demised premises be or become infested with vermin, Tenant
shall, at its expense, cause the same to be exterminated. Tenant shall give
Owner prompt notice of any defective condition in any plumbing, heating system
or electrical lines located in the demised premises and following such notice,
Owner shall remedy the condition with due diligence, but at the expense of
Tenant, if repairs are necessitated by damage or injury attributable to Tenant,
Tenant's servants, agents,
--------
*Owner hereby agrees to cause such repairs, replacements and
improvements to be made with reasonable promptness, and to take reasonable steps
to minimize any inconvenience to Tenant arising therefrom, provided however,
that this shall not obligate Owner to incur any additional overtime cost nor
entitle Tenant to deduct or xxxxx the rent or any other payment.
4
5
employees, invitees or licensees as aforesaid. Except as specifically provided
in Article 9 or elsewhere in this lease, there shall be no allowance to the
Tenant for a diminution of rental value and no liability on the part of Owner by
reason of inconvenience, annoyance or injury to business arising from Owner,
Tenant or others making or failing to make any repairs, alterations, additions
or improvements in or to any portion of the building or the demised premises or
in and to the fixtures, appurtenances or equipment thereof. It is specifically
agreed that Tenant shall not be entitled to any set off 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 any action for damages for breach of contract. The
provisions of this Article 4 with respect to the making of repairs shall not
apply in the case of fire or other casualty with regard to which Article 9
hereof shall apply.
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 New York State 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 INSURANCE: 6. Prior to the commencement of the lease
term, if Tenant is then in possession, and at all times thereafter Tenant shall,
at Tenant's sole cost and expense, 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, or the 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
5
6
of Tenant's use or manner of use thereof, or, with respect to the building, if
arising out of Tenant's use or manner of use of the demised premises of the
building (including the use permitted under the lease). Except as provided in
Article 30 hereof, 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 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. 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 and 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. If by reason of failure to comply with the foregoing 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" or rate for the building or demised premises
issued by a 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
6
7
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 maintained by
Tenant, at Tenant's expense, in settings sufficient, in Owner's judgment, to
absorb and prevent vibration, noise and annoyance. Limitation on load/sq. ft. is
120 Lbs. (One hundred twenty pounds).
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 or 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.
TENANT'S LIABILITY INSURANCE PROPERTY LOSS, DAMAGE, INDEMNITY: 8. Owner or its
agents shall not be liable for any damage to property of Tenant or of others
entrusted to employees of the building, nor for 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; Owner
or its agents shall not be liable for any damage caused by other tenants or
persons in, upon or about said building or caused by operations in connection of
any private, public or quasi public work. If at any time any windows of the
demised premises are temporarily
7
8
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 attorney's 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
carelessness, negligence or improper conduct 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. In case any action
or proceeding is brought against Owner by reason of any such claim, Tenant, upon
timely written notice from Owner, will, at Tenant's expense, resist or defend
such action or proceeding by counsel approved by Owner in writing, such approval
not to be unreasonably withheld.
DESTRUCTION, FIRE AND OTHER CASUALTY: 9. (a) If the demised premises or any part
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
8
9
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 forty-five (45) 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 Owner's 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 Owner's restoration by removing from
the premises as
9
10
promptly as reasonably possible, all of Tenant's salvageable inventory and
movable 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. Notwithstanding the foregoing, including Owner's
obligation to restore under subparagraph (b) above, each party shall look first
to any insurance in its favor before making any claim against the other party
for recovery for loss or damage resulting from fire or other casualty, and to
the extent that such insurance is in force and collectible and to the extent
permitted by law, Owner and Tenant each hereby releases and waives all right of
recovery with respect to subparagraphs (b), (d) and (e) above, against the other
or any one claiming through or under each of them by way of subrogation or
otherwise. The release and waiver herein referred to shall be deemed to include
any loss or damage to the demised premises and/or to any personal property,
equipment, trade fixtures, goods and merchandise located therein. The foregoing
release and waiver shall be in force only if both releasors' insurance policies
contain a clause providing that such a release or waiver shall not invalidate
the insurance. If, and to the extent, that such waiver can be obtained only by
the payment of additional premiums, then the party benefitting from the waiver
shall pay such premium within ten days after written demand or shall be deemed
to have agreed that the party obtaining insurance coverage shall be free of any
further obligation under the provisions hereof with respect to waiver of
subrogation. 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
10
11
waives the provisions of Section 227 of the Real Property Law and agrees that
the provisions 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. 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 fixtures and equipment at the end of the term and
provided further such claim does not reduce Owner's award.
ASSIGNMENT, MORTGAGE, ETC.: 11. Tenant, for itself, its heirs, distributees,
executors, administrators, legal representatives, successors 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 of
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 the part of Tenant herein contained. The consent by
11
12
Owner to an assignment or underletting shall not in any wise 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 or 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 wise 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 any portion of the building or which Owner may elect to perform in
the premises after Tenant's failure to make repairs or perform any work which
Tenant is obligated to perform under this lease, or for the purpose of complying
with laws, regulations and other directions of governmental authorities. 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, wherever possible, they are within walls or otherwise concealed. Owner
may, during the progress of any work in the demised premises, take all necessary
materials and equipment not 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
12
13
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 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 and may, during said six
months period, place upon the demised premises the usual notices "To Let" and
"For Sale" which notices Tenant shall permit to remain thereon without
molestation. 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 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 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 obligation 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 any 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
13
14
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, if used by Tenant, whether or not specifically leased hereunder.
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. If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business, Tenant shall be responsible for
and shall procure and maintain such license or permit.
BANKRUPTCY: 16. (A) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be canceled by Owner by 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; or (2) the making by Tenant
of an assignment or 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 thereafter be entitled to
possession of the premises demised but shall forthwith quit and surrender the
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 this lease.
14
15
(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
1to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rental 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 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 relet 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 reletting
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 becomes
15
16
vacant or deserted "or if this lease be rejected under Section 235 of Title 11
of the U.S. Code (bankruptcy code);" or if any execution or attachment shall be
issued against Tenant or any of Tenant's property whereupon the demised premises
shall be taken or occupied by someone other than Tenant; or if Tenant shall make
default with respect to any other lease between Owner and Tenant; or if Tenant
shall have failed, after_____ days written notice, to redeposit with Owner any
portion of the security deposited hereunder which Owner has applied to the
payment of any rent and additional rent due and payable hereunder or failed to
move into or take possession of the premises within _____ days after the
commencement of the term of this lease, of which fact Owner shall be the sole
judge; then in any one or more of such events, upon Owner serving a written
_____ days notice upon Tenant specifying the nature of said default and upon the
expiration of said _____ days, if Tenant shall have failed to comply with or
remedy such default, or if the said default or omission complained of shall be
of a nature that the same cannot be completely cured or remedied within said
_____ day period, and if Tenant shall not have diligently commenced during such
default within such fifteen (15) day period, and shall not thereafter with
reasonable diligence and in good faith, proceed to remedy or cure such default,
then Owner may serve a written five (5) days' notice of cancellation of this
lease upon Tenant, and upon the expiration of said five (5) days this lease and
the term thereunder shall end and expire as fully and completely as if the
expiration of such five (5) 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
16
17
or any item of additional rent herein mentioned or any part of either or in
making any other payment herein required; then and in any of such events Owner
may without notice, re-enter the demised premises either by force or otherwise,
and dispossess Tenant by summary proceedings or otherwise, 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 WAIVER OF REDEMPTION:** 18. In case of any such default,
re-entry, 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 or parts thereof, either in the name of Owner or otherwise, for a term or
terms, which may at Owner's option be less than or exceed the period which would
otherwise have constituted the balance of the term of this lease and may grant
concessions or free rent or charge a higher rental than that in this lease, (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 subsequent lease or leases of the demised premises for each month
of the period
--------------
**Owner shall use best efforts to relet the premises and shall be
obligated to mitigate the damages to the extent of rent collected upon
reletting, if and when such rent is collected, after deducting all actual
expenses incurred in such reletting.
17
18
which would otherwise have constituted the balance of the term of this lease.
The failure of Owner to re-let the premises or any part or parts thereof shall
not release or affect Tenant's liability for damages. In computing such
liquidated damages there shall be added to the said 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 month shall not 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 the purpose of 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 the 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,
18
19
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws.
FEES AND EXPENSES: 19. If Tenant shall default in the observance or performance
of any material 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
after ten (10) days without notice perform the obligation of Tenant thereunder.
If Owner, in connection with the foregoing or in connection with any default by
Tenant in the covenant to pay rent hereunder, makes any expenditures or incurs
any obligations for the payment of money, including but not limited to
reasonable attorney's fees, in instituting, prosecuting or defending any action
or proceedings, and prevails in any such action or proceeding, then Tenant will
reimburse Owner for such reasonable 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
of such expenditures or incurring of such obligations, such sums shall be
recoverable by Owner as damages.
BUILDING ALTERATIONS AND MANAGEMENT: 20. Owner shall have the right at any time
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
19
20
designation by which the building may be known. 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 Tenant 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 any 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.
NO REPRESENTATIONS BY OWNER: 21. Neither Owner nor Owner's agents have 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 demised premises or the building except as herein expressly set forth and
no rights, easements or licenses are acquired by Tenant by implication or
otherwise except as expressly set forth in the provisions of this lease. Tenant
has inspected the building and the demised premises and is thoroughly acquainted
with their condition and agrees to take the same "as is" on the date possession
is tendered 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 were 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 expresses the
agreement between Owner and Tenant and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in
20
21
whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification, 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, boom
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 from the demised premises. 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 Sunday, this lease shall expire at noon on the
preceding Saturday unless it be a legal holiday in which case it shall expire at
noon on the preceding business day.
QUIET 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 34 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 holding-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 if Owner has not competed any work required
to be performed by Owner, or for any
21
22
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 [wise]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 any work required) until after Owner shall have given Tenant notice
that Owner is able to deliver possession in the 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 than the demised premises prior to
the date specified at the 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 page one of 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.
NO WAIVER: 25. The failure of Owner 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 with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach and no provision of this lease
shall be deemed to have been waived by Owner unless such waiver be in writing
signed by Owner. No payment by Tenant or receipt by Owner of a lesser amount
than the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or
22
23
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. All checks tendered to Owner as and for
the rent of the demised premises shall be deemed payments for the account of
Tenant. Acceptance by Owner of rent from anyone other than Tenant shall not be
deemed to operate as an attornment to Owner by the payor of such rent or as a
consent by Owner to an assignment or subletting by Tenant of the demised
premises to such payor, or as a modification of the provisions of this lease. 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 lease 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 summary proceeding for possession of the
premises, Tenant will not interpose any counterclaim of
23
24
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 wise 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 is 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 beyond
Owner's sole control including, but not 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 residence address or business address of Tenant or left at any of the
aforesaid premises addressed to Tenant, and the time of the rendition of such
xxxx or statement and of the giving of such notice or communication shall be
deemed to be the time when the same is delivered to Tenant, mailed, or left at
the premises as herein provided. Any notice by Tenant to Owner
24
25
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.
WATER CHARGES: 29. If Tenant requires, uses or consumes water for any purpose in
addition to ordinary lavatory purposes (of which fact Tenant constitutes Owner
to be the sole judge) Owner may install a water meter and thereby measure
Tenant's water consumption for all purposes. Tenant shall pay Owner for the cost
of the meter and the cost of the installation, thereof, and throughout the
duration of Tenant's occupancy Tenant shall keep said meter and installation
equipment in good working order and repair at Tenant's own cost and expense in
default of which Owner may cause such meter and equipment to be replaced or
repaired and collect the cost thereof from Tenant, as additional rent. Tenant
agrees to pay for water consumed, as shown on said meter as and when bills are
rendered, and on default in making such payment Owner may pay such charges and
collect the same from Tenant, as additional rent. Tenant covenants and agrees to
pay, as additional rent, the sewer rent, charge or any other tax, rent, levy or
charge which now or hereafter is assessed, imposed or a lien upon the demised
premises or the realty of which they are part pursuant to law, order or
regulation made or issued in connection with the use, consumption, maintenance
or supply of water, water system or sewage or sewage connection system. If the
building or the demised premises or any part thereof is supplied with water
through a meter through which water is also supplied to other premises Tenant
shall pay to Owner as additional rent on the first day of each month,
________% ($ ) of the total meter charges as Tenant's portion. Independently
of and in addition to any of the remedies reserved to Owner hereinabove or
elsewhere in this lease, Owner may xxx for and
25
26
collect any monies to be paid by Tenant or paid by Owner for any of the reasons
or purposes hereinabove set forth.
SPRINKLERS: 30. Anything elsewhere in this lease to the contrary
notwithstanding, if the New York Board of Fire Underwriters, or the New York
Fire Insurance Exchange or any bureau, department or official of the federal,
state or city government recommend or require the installation of a sprinkler
system or that any changes, modifications, alterations or additional sprinkler
heads or other equipment be made or supplied in an existing sprinkler system by
reason of Tenant's business, or the location of partitions, trade fixtures, or
other contents of the demised premises, or for any other reason, or if any such
sprinkler system installations, modifications, alterations, additional sprinkler
heads or other such equipment, become necessary to prevent the imposition of a
penalty or charge against the full allowance for a sprinkler system in the fire
insurance rate set by any said Exchange or by any fire insurance company, Tenant
shall, at Tenant's expense, promptly make such sprinkler system installations,
changes, modifications, alterations, and supply additional sprinkler heads or
other equipment as required whether the work involved shall be structural or
non-structural in nature. Tenant shall pay to Owner as additional rent the sum
of $____________, on the first day of each month during the term of this lease,
as Tenant's portion of the contract price for sprinkler supervisory service.
ELEVATORS, HEAT, CLEANING: 31. As long as Tenant is not in default under any
[of] the covenants of this lease beyond the applicable grace period provided in
this lease for the curing of such defaults, Owner shall: (a) provide necessary
passenger elevator facilities on business days from 8 a.m. to 6 p.m. and on
Saturdays from 8 a.m. to 1 p.m.; (b) if freight elevator service is provided,
same shall be provided only on regular business days Monday through Friday
inclusive,
26
27
and on those days only between the hours of 9 a.m. and 12 noon and between 1
p.m. and 5 p.m.; (c) furnish heat, water and other services supplied by Owner to
the demised premises, when and as required by law, on business days from 8 a.m.
to 6 p.m. and on Saturdays from 8 a.m. to 1 p.m.; (d) clean the public halls and
public portions of the building which are used in common by all tenants. Tenant
shall, at Tenant's expense, keep the demised premises, including the windows,
clean and in order, to the reasonable satisfaction of Owner, and for that
purpose shall employ the person or persons, or corporation approved by Owner.
Tenant shall pay to Owner the cost of removal of any of Tenant's refuse and
rubbish from the building. Bills for the same shall be rendered by Owner to
Tenant at such time as Owner may elect and shall be due and payable hereunder,
and the amount of such bills shall be deemed to be, and be paid as, additional
rent. Tenant shall, however, have the option of independently contracting for
the removal of such rubbish and refuse in the event that Tenant does not wish to
have same done by employees of Owner. Under such circumstances, however, the
removal of such refuse and rubbish by others shall be subject to such rules and
regulations as, in the judgement of Owner, are necessary for the proper
operation of the building. Owner reserves the right to stop service of the
heating, elevator, plumbing and electric systems, when necessary, by reason of
accident, or emergency, or for repairs, alterations, replacements or
improvements, in the judgement of Owner desirable or necessary to be made, until
said repairs, alterations, replacements or improvements shall have been
completed. If the building of which the demised premises are a part supplies
manually operated elevator service, Owner may proceed diligently with
alterations necessary to substitute automatic control elevator service without
in any way affecting the obligations of Tenant hereunder.
27
28
SECURITY: 32. Tenant has deposited with Owner the sum of $22,000. - as security
for the faithful performance and observance by Tenant of the terms, provisions
and conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of 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 rent 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 reletting 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 or 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.
28
29
CAPTIONS: 33. 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 nor
the intent of any provision thereof.
DEFINITIONS: 34. The term "Owner" as used in this lease means only the owner of
the fee or of the leasehold of the building, 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 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 parties 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 legal meaning. The term "rent"
includes the annual rental rate whether so expressed or expressed in monthly
installments, and "additional rent." "Additional rent" means all sums which
shall be due to Owner from Tenant under this lease, in addition to the annual
rental rate. The term "business days" as used in this lease, shall exclude
Saturdays, Sundays and all days observed by the State or Federal Government as
legal holidays and those designated as holidays by the applicable building
service union employees service 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 delayed.
29
30
ADJACENT EXCAVATION-SHORING: 35. 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 the 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: 36. Tenant and Tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully, and comply strictly with, the
Rules and Regulations annexed hereto and such other and further reasonable Rules
and Regulations as Owner or Owner's agents may from time to time adopt. 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 or
Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing upon Owner within fifteen (15) 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 servants, employees, agents, visitors or licensees.
30
31
GLASS: 37. Owner shall replace, at the expense of the Tenant, any and all plate
and other glass damaged or broken from any cause whatsoever in and about the
demised premises. Owner may insure, and keep insured, at Tenant's expense, all
plate and other glass in the demised premises for and in the name of Owner.
Bills for the premiums therefor shall be rendered by Owner to Tenant at such
times as Owner may elect, and shall be due from, and payable by, Tenant when
rendered, and the amount thereof shall be deemed to be, and be paid, as
additional rent.
ESTOPPEL CERTIFICATE: 38. Tenant, at any time, and from time to time, upon at
least 10 days' prior notice by Owner, shall execute, acknowledge and deliver to
Owner, and/or to any other person, firm or corporation specified by Owner, a
statement certifying that this Lease is unmodified 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.
DIRECTOR BOARD LISTING: 39. If, at the request of and as accommodation to
Tenant, Owner shall place upon the directory board in the lobby of the building,
one or more names of persons other than Tenant, such directory board listing
shall not be construed as the consent by Owner to an assignment or subletting by
Tenant to such person or persons.
SUCCESSORS AND ASSIGNS: 40. The covenants, conditions and agreements contained
in this lease shall bind and inure to the benefit of Owner and Tenant and their
respective heirs, distributees, 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 for the collection of a judgement (or other
judicial process)
31
32
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.
Space to be filled in or deleted. Para 32 continued- Such
Security Deposit shall not bear any interest.
In Witness Whereof, Owner and Tenant have respectively signed
and sealed this lease as of the day and year first above written.
Witness for Owner: R.A.A. REALTY COMPANY LP
------------------------- ---------------------------
[L.S.]
Witness for Tenant: MEDSCAPE INC.
------------------------- ---------------------------
[L.S.]
32
33
Rider Agreement Dated February 1999.,
Between R.A.A. Realty Company LP., as Owner
and Medscape Inc., as Tenant.
-------------------------------------------
41. BASE RENT:
A. Tenant shall pay to the Owner base rent for the demised
premises in accordance with the provisions of the printed form of this Lease as
follows:
$153,333.- from 03/01/1999 to 06/30/2000 that is $9,583.33/mo
$119,000.- from 07/01/2000 to 06130/2001 that is $9,916.67/mo
$123,000.- from 07/01/2001 to 06/30/2002 that is $10,250.00/mo
$127,000.- from 07/01/2002 to 06/30/2003 that is $10,583.33/mo
$131,000.- from 07/01/2003 to 06/30/2004 that is $10,916.67/mo Rent
will be abated through April 15, 1999
42. OPTION TO RENEW:
A. Provided Tenant is not in default in any of the material
terms, covenants or condition of this Lease, including but not limited to the
obligation to pay rent or additional rent, and provided further that Owner has
not during the initial term of the Lease commenced any summary proceeding for
possession or rent that has resulted in a judgement in favor of Owner, whether
by stipulation or after trial, Tenant shall have the right to renew this Lease
for an additional Five (5) year term commencing July lst, 2004 and expiring June
30, 2009
The base rent for the renewal term shall be as follows:
$140,000.- from 07/01/2004 to 06/30/2005 that is $11,666.67/mo
$144,000.- from 07/01/2005 to 06/30/2006 that is $12,000.00/mo
$148,000.- from 07/01/2006 to 06/30/2007 that is $12,333.33/mo
$152,000.- from 07/01/2007 to 06/30/2008 that is $12,666.67/mo
$156,000.- from 07/01/2008 to 06/30/2009 that is $13,000.00/mo
-1-
34
B. If the Tenant exercises the option to renew the lease;
tenant shall notify Landlord in writing on or before December 31, 2003 that it
intends to renew the Lease. The failure by Tenant to notify Landlord timely of
its intention to renew shall constitute an affirmative election by Tenant not to
renew the lease upon which Landlord may reasonably rely, if it so desires to
recent the demised premises to a third party.
43. SUBLEASE
Owner represents and Tenant understands and agrees that
Owner is the proprietary lessee of the demised premises pursuant to a
Proprietary Lease between Owner, as lessee and 000 Xxxx 00xx Xxxxxx Owners Corp,
as lessor ("Owners Corporation"). All rights of Tenant are subject to the
Proprietary Lease. Tenant shall observe each and every covenant of the
Proprietary Lease on the part to be performed by Owner as lessee under the
Proprietary Lease. Observance of the terms, covenants and conditions of the
Proprietary Lease by the Tenant except the financial obligation shall be deemed
a substantial obligation of this tenancy. This lease is conditioned upon Owner's
obtaining the written consent from the Owner Corporation to this lease by
02/28/99.
44. PAYMENT OF RENT AND ADDITIONAL RENT
A. The payment of all rent and additional rent under this
lease shall constitute a substantial obligation of this tenancy entitling the
Owner to exercise all its rights and remedies under Article 17 of this lease.
B. It shall not constitute a bar, preclusion or election
of remedies against the enforcement of a landlord's rights and remedies under
Article 17 of this lease for nonpayment of rent or additional rent if the Owner
has already commenced a proceeding or action to recover the rent or additional
rent.
C. Tenant covenants and agrees that the monthly
installments of annual rent shall be paid by Tenant to Owner on or before the
first day of each month without notice or demand by Owner. In the event that
such installments of annual rental shall not be paid by the Fifth (5) day of the
month or any item of additional rent shall not be paid within the applicable
time period following written demand therefore, the owner shall give a written
notice to the Tenant. If the Tenant does not pay the amount due within three (3)
days of receipt of such written notice then the Tenant shall pay to the Owner as
additional rent, a late charge equal to two (2%) percent of such monthly
installment or item of additional rent .
D. If Owner receives from Tenant any payment less than the
sum of the annual rent, additional rent and other amount due under this Lease,
(Partial Payment), or Tenant is in arrears in payment of any amount due under
this Lease, in its sole discretion, may
-2-
35
allocate such Partial Payment or payment in whole or in part to any other
charges or to any combination thereof.
E. If the Tenant's checks are returned by his bank for any
reason whatsoever three times during the term of the lease, then, the Owner, at
Owner's option, shall have the right, to demand payment of future installments
of rent or additional rent by certified, bank or teller's check or by postal
money order.
45. CONDITION OF PREMISES
Tenant acknowledges that it has inspected demised premises
and is familiar with the physical condition of same and Tenant agrees to accept
the demised premises in their AS IS physical condition.
Owner represents that substantially all the friable
Asbestos Containing Material has been either removed or contained throughout the
building and in the demised premises. Owner will defend, indemnify and hold
harmless Tenant, its affiliates, its employees, agents and insurers, from and
against all losses, claims, damages, fines and expenses (including without
limitation reasonable legal fees) resulting from any environmental remediation
required by applicable laws, regulations or directives of properly constituted
governmental authorities as a result of the release of any toxic or hazardous
substance or waste on or about the Demised Premises by anyone other that Tenant,
its affiliates, its employees, agents or contractors.
46. USE
A. Tenant shall use and occupy the demised premises solely
for the use specified in Article 2 of the printed form of this lease and for no
other purposes. Tenant specifically covenants and agrees that Tenant shall not
use the demised premises or any part thereof, nor permit the demised premises of
any part thereof to be used for sleeping or residential purposes or for
overnight accommodations.
B. In addition, Tenant shall not suffer nor permit the
demised premises or any part thereof to be used in any manner, or anything to be
done therein, or suffer or permit anything to be brought into or kept therein,
which would in any way (i) violate any of the provisions of any grant, lease or
mortgage or requirements of public authorities (ii) make void or voidable any
fire or liability insurance policy then in force with respect to the building,
(iii) make unattainable or more difficult to obtain from reputable insurance
companies authorized to do business in New York State fire insurance with
extended coverage, or liability, elevator, boiler or any other insurance
maintained by Landlord, (iv) cause physical damage to the building or any part
thereof, (v) constitute a public or private nuisance, (vi) impair, the
appearance, character or reputation of the building, (vii) impair or interfere
with any of the building services or the proper
-3-
36
and heating, cleaning, or other servicing of the building or the demised
premises or impair or interfere with or tend to impair or interfere with the use
of the other areas of the building by, or occasion discomfort, annoyance or
inconvenience to, Owner or any of the other tenants or occupants of the
building, (viii) violate any of the terms, covenants or conditions contained in
this Lease, or (ix) be illegal, unlawful, or result in the creation of a public
or private nuisance.
C. Owner makes no representations, guarantees, or
acknowledgments that the use designated in the Lease by the Tenant is permitted
under any statute, ordinance, rule, regulation, or other present or future law
promulgated by any state, federal, municipal, or local government or agency or
authority thereof. In the event that said use is illegal or determined by any
notice of violation or order issued by the aforesaid appropriate governmental
authority, then upon six (6) days prior written notice given in accordance with
this Lease, this Lease and the term thereof shall expire on the last day of said
notice as if said day were the last day of the term of this Lease.
D. If any governmental licence or permit shall be required
for the proper and lawful conduct of Tenant's business, Tenant, at Tenant's sole
cost and expense, shall duly procure and thereafter maintain such licence or
permit and submit the same to inspection by Owner Tenant, at Tenant's sole cost
and expense, shall at all times comply with the terms and conditions of each
such licence or permit.
E. The Owner represents to the best of his knowledge that
the Premises may be used for an office and there are no outstanding violations
on the Premises, that the Landlord is aware, that would preclude Tenant from
obtaining a building permit for alterations.
47. BROKERAGE
The parties warrant and represent to each other that they
had no dealings with any broker or agent in connection with this Lease. The
Tenant shall have no obligation with respect to any commission payable to said
broker. The parties covenant and agree to hold each other harmless and indemnify
each other from and against any and all costs, expenses or liability for any
compensation, commissions, fees and charges claimed by any broker with respect
to this Lease or the negotiation thereof. The obligation of Tenant contained in
the Article shall survive the expiration or earlier termination of this Lease.
48. RUBBISH REMOVAL AND CLEANING
A. Tenant covenants and agrees to maintain the demised
premises and adjacent public and/or common areas in a condition of proper
cleanliness, orderliness and state of attractive appearance at all times. Tenant
shall also be responsible and shall contract for
-4-
37
the removal of all rubbish from the demised premises at its sole cost and
expense, in accordance with any and all applicable municipal codes and
regulations. If Tenant fails or refuses to remove any rubbish from, in or around
the demised premises, the Owner may contract to have same removed and the Tenant
shall pay for actual costs of said removal as additional rent.
49. INSURANCE
A. Tenant shall obtain or procure its own fire, rental,
liability, or other casualty insurance as may be required under the terms of
this Lease. Supplementary Article 9 of this Lease, each party shall look first
to any insurance in its favor before making any claim against the other party
for recovery of loss or damage resulting from fire or any other casualty.
B. (1) Tenant shall, at its sole cost and expense, procure
and maintain throughout the term of this Lease a comprehensive general liability
policy of insurance insuring Tenant, Owner and Owners Corporation against any
and all risks and/or liability for property damage and bodily injury to or death
of a person or persons in, on or about the demised premises, occasioned by or
arising out of or in connection with the use or occupancy of the demised
premises, and a fire insurance policy (including extended coverage, vandalism
and malicious mischief) covering the demised premises and Tenant's property.
Such policies must be obtained from an insurance company rated "A" or better by
A.M. Best Company, Inc. in an amount not less than $1,000,000.00 with respect to
the bodily injuries or to death of any one person, in an amount not less than
$1,000,000.00 per occurrence, and in an amount of not less than $250,000.00 for
property damage, and shall name Owner and Owner's Corporation as additional
insureds. Tenant will deliver the original policy and all original renewals of
said policy to owner on demand.
(2) Tenant shall at all times during this Lease is in
effect maintain for its own benefit, fire and casualty insurance for all the
contends, fixtures, personal, property, inventory and other moveable or
nonmoveable property of Tenant.
C. Tenant agrees to pay all premiums and charges for the
insurance required to be maintained by Tenant pursuant to the terms of this
Lease. If Tenant fails to make any such payments when due, or in the event of
its failure to deliver and/or pay the premium thereon, then Owner after giving
10 days written notice to the Tenant and opportunity to cure, may pay said
premium or charge (but in no event shall be obligated to do so), and upon
written demand to Tenant, Owner may collect said payment as additional rent, or
deem Tenant to be in default of substantial obligation of its tenancy. The
failure to maintain and/or renew the above policies of insurance shall
constitute a breach of a substantial obligation of this tenancy.
-5-
38
50. ADDITIONAL RENT
A. All payments, other than the base rental as adjusted
from time to time, to be made by Tenant pursuant to this Lease shall be deemed
additional rent, whether or not specifically so called, and, in the event of any
non-payment thereof, Owner shall have all rights and remedies provided for
herein or by law for non-payment of rent.
B. Should Tenant default in the timely performance of any
covenant, term or condition herein contained on Tenant's part to be performed,
Owner, at its option and without thereby waiving such a default, may perform or
cause the Managing Agent of the Building to perform the same for and on account
of, and at the expense of the Tenant after five (5) days written notice (except
in the event of an emergency, i.e., threat of personal injury and/or damage or
destruction of property, when no notice shall be required. Tenant shall pay as
an item of additional rent all costs and expenses which Owner may incur any of
Tenant's defaults within five (5) days following delivery of a written demand
therefore which costs and expenses shall included, but not be limited to,
materials, fees paid to architects, engineers, attorneys, contractors,
subcontractors fines and penalties.
C. Owner's failure during the term of this Lease to
prepare and deliver any statements of bills required to be delivered to Tenant
pursuant to the provisions of this lease, or Owner's failure to make a demand
for the payment of any item of additional rent, shall not in any way be deemed
to be a waiver of, or cause Owner to forfeit or surrender its rights to collect
such additional rent during the terms of this lease. Tenant's liability for the
payment of any item of additional rent shall survive the expiration or sooner
termination of this Lease.
51. NO WAIVER BY OWNER
A. The receipt of any rent, or any portion thereof,
whether specifically reserved or payable under any of the covenants herein
contain, after a default on the part of the Tenant (whether such rent is due
before or after such default) shall not be deemed to operate as a waiver of any
default or of any current default or of the right of Owner to enforce the
payment of any rent herein reserved or to declare a forfeiture to this Lease and
to recover the possession of the demised premises provided in this Lease. Nor
shall
B. Owner's acceptance of rent during any time in which
Tenant is in default of any provision hereunder shall not constitute a waiver of
such default, and Tenant specifically agrees and consents that rent must be paid
by Tenant during any default and Tenant specifically agrees that such acceptance
shall be made without prejudice to Owner's right to Terminate this Lease and
shall not be deemed a consent to any default of the Lease.
-6-
39
52. BILLS AND NOTICES
Supplementing Article 28 of this lease, any notice, xxxx,
statement, or communication required to be given under the terms of this Lease
by the Owner shall be sufficiently given by the Owner's agent or attorney-at-law
or in-fact, whether or not any authorization is annexed. Any notice, xxxx,
statement, or communication required to be given shall be sufficiently given
when mailed.
53. ELECTRICITY SERVICE
A. (1) Landlord shall redistribute or furnish electrical
energy to or for the use of Tenant in the Premises for the operation of the
lighting fixtures and the electrical receptacles installed in the Premises.
Tenant's electrical consumption shall be measured by the meter currently
installed in the Premises. The cost of electricity utilized by Tenant shall be
paid for by Tenant to Landlord as additional rent and shall be calculated at the
then applicable rate prescribed by the public utility company serving the
Premises for submetered electrical energy, plus (i) Landlord's charge for
overhead and supervision in the amount of ten percent (10%) of the total
electric xxxx and (ii) any taxes or other charges in connection therewith. If
any tax shall be imposed upon Landlord's receipts from the sale or resale of
electrical energy to Tenant, the prorata share applicable to the electrical
energy service received by Tenant shall be passed on to, included in the xxxx
of, and paid by Tenant if and to the extent permitted by law. Landlord shall
xxxx Tenant, monthly, for the cost of its consumption of electricity in the
Premises and Tenant shall pay the amount thereof at the time of payment of each
installment of Rent. If either the quantity of character of electrical services
is changed by the public utility or other company supplying electrical service
to the Building or is no longer available or suitable for Tenant's requirements,
no such change, unavailability or unsuitability shall constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution or rent, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord, or its agents, by reason of
inconvenience or annoyance to Tenant, or injury to or interruption of Tenant's.
(2) Any additional feeders or risers which are required to
supply any additional electrical requirements which Tenant may have, and all
other equipment proper and necessary in connection with such feeders or risers,
shall be installed by Landlord upon Tenant's request, at the sole cost and
expense of Tenant, provided that, in Landlord's reasonable judgment, such
additional feeders or riders are necessary and are permissible under application
laws and insurance regulations and the installation of such feeders or risers
will not cause permanent damage or injury to the Building or the Premises or
cause or create a dangerous or hazardous condition or entail excessive or
unreasonable alterations or interface with or disturb other tenants or occupants
of the Building. At no time shall the use of electrical energy in the Premises
exceed the capacity of the existing feeders or wiring installations then serving
the Premises. Tenant shall not make or perform, or permit the making or
performance of, any alterations to wiring installations or other electrical
facilities in or serving the Premises without the prior consent of
-7-
40
Landlord in each instance. Any such Alterations, additions or consent by
Landlord shall be subject to the provisions of this Lease including, but not
limited to, the provisions of Article 3 hereof.
(3) Landlord reserves the right to discontinue furnishing
electricity to Tenant in the Premises on not less than sixty (60) days' written
notice to Tenant. If Landlord exercises such right to discontinue, or is
compelled to discontinue furnishing electricity to Tenant, this Lease shall
continue in full force and effect and shall be unaffected thereby, except only
that from and after the effective date of such discontinuance, Landlord shall
not be obliged to furnish electricity to Tenant. If Landlord so discontinues
furnishing electricity to Tenant, Tenant shall arrange to obtain electricity
directly from the public utility or other company servicing the Building. Such
electricity may be furnished to Tenant by means of the then existing electrical
facilities serving the Premises to the extent that the same are available,
suitable and safe for such purposes. All meters and all additional panel boards,
feeders, risers, wiring and other conductors and equipment which may be required
to obtain electricity, of substantially the same quantity, quality and
character, shall be installed by Landlord at Tenant's sole cost and expense.
Landlord shall not voluntarily discontinue furnishing electricity to Tenant
until Tenant is able to receive electricity directly from the public utility or
other company servicing the Building.
(4) Landlord shall not be liable to tenant in any way for
any interruption, curtailment or failure or defect in the supply or character of
electricity furnished to the premises by reason of any requirement, act or
omission or Landlord or of any public utility or other company servicing the
Building with electricity or for any other reason except Landlord's negligence
or willful conduct.
B. Tenant shall not be released or excused from the
performance of any of its obligations under this Lease for any change in the
quantity or quality of service, failure or interruption or curtailment or
cessation of Utilities service for any reason whatsoever except Landlord's
negligence or willful misconduct and no such change, failure, interruption or
curtailment or cessation shall constitute a constructive or partial eviction or
entitle Tenant to an abatement of, offset against, or deduction from rent or
additional rent or impose any liability upon Owner.
C. Owner shall not be obligated to provide hot water, air
conditioning, and ventilation service to the demised premises.
54. ESTOPPEL CERTIFICATE
A. Upon Owner's written request, Tenant. shall confirm the
existence of this Lease and any modifications hereto as evidenced by a written
agreement, and/or specific terms hereof (said form shall hereinafter be referred
to as a "Estoppel Certificate"). Tenant shall within five (5) days from receipt
of an Estoppel Certificate, execute the same in the
-8-
41
presence of a notary public who shall thereafter complete the acknowledgment and
Tenant shall return said Estoppel Certificate to Owner and/or Owner's designee
by the means specified. All parties to whom said Estoppel Certificate is
addressed shall be absolutely entitled to rely upon the reservations of Tenant
therein contained and Tenant shall be forever barred from refuting any
statements therein set forth as of the date to which said Estoppel Certificate
speaks. Upon written request, Landlord shall deliver to tenant an Estoppel
Certificate.
B. If, in connection with obtaining financing, a bank,
insurance company, or other lending institution shall request reasonable
modifications in this Lease as a condition to such financing, Tenant will not
unreasonably withhold, delay or defer its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder or materially
adversely affect the leasehold interest or rights hereby created.
55. NO LIABILITY ON LANDLORD
A. Tenant shall indemnify and save Owner harmless against
(i) any and all claims against Owner of whatever nature arising from any
wrongful act, omission or negligence of Tenant, its contractors, licensees,
agents servants, employees, invitees and or visitors. (ii) any and all claims
against the owner arising from any accident, injury or damage occurring outside
of the demised premises but within or about the land and building where
accident, injury or damage result from any act, omissions or negligence of
Tenant, its contractors, licensees, agents, servants, employees, invitees and/or
visitors, (iii) any breach, violation or nonperformance of any of the terms,
covenants, and conditions contained in this lease on the part of the Tenant to
be fulfilled, kept, observed and performed.
This indemnity and hold harmless covenant shall include
indemnity from and against any and all liability, fines, suits, demands, costs
and expenses (including attorneys' fees and disbursements) of any kind or nature
incurred in connection with any such claim or proceeding brought thereon, and
the defense thereof by the owner. The indemnity and hold harmless covenant shall
survive the expiration or the earlier termination of the term of this Lease and
for any period of time prior to the commencement of the term of this Lease
during which Tenant was given access to the demised premises.
B. Tenant shall reimburse Owner as an item of additional
rent within ten (10) days following written demand therefor, for all
expenditures incurred by or damages or fines sustained or incurred by owner due
to Tenant's default of the provisions of this Article.
C. Notwithstanding anything provided in this Lease or
provided at law or in equity to the contrary, in the event that Tenant shall
obtain a monetary judgement against Owner in any action or proceeding, Tenant
shall seek satisfaction of such a judgement only from Owner's estate and
interest in the demised premises comprising of Cooperative Unit # 201/2, 203,
204, 205, 206, 207, 208, 209/10 in 000 Xxxx 00xx Xxxxxx Owners Corporation, and
-9-
42
not other property or other assets belonging to owner or its directors,
officers, partners, principals (disclosed or undisclosed) or employees shall be
subject to lien, levy, execution or other enforcement procedure for the
satisfaction of any such judgement arising from the relationship of landlord and
tenant hereunder, Tenant's use and occupancy of the demised premises or this
Lease. If Tenant shall acquire a lien on such other property or assets by
judgement or otherwise, Tenant shall promptly release such lien by executing and
delivering to Owner an instrument to the effect prepared by Owner, Tenant's
covenants as contained in the Article shall survive the expiration or the
earlier termination of the term of this Lease.
56. MECHANICS' LIEN
In no event shall any material or equipment be
incorporated into the demised premises in connection with any alterations,
installations, additions, improvements, repairs or replacements made by Tenant
including, but not limited to, Tenant's changes, which is subject to any lien,
encumbrance, chattel mortgage, security interest or charge of any kind
whatsoever, or is subject to any conditional sale or other similar or dissimilar
title retention agreement with this express written consent of Owner. Tenant
specifically covenants that any personal property which Tenant shall bring to or
install in the demised premises which requires special handling shall not be
subject to any security interest held by a third party. Any mechanic's or
materialman's lien filed against the lands and/or the building or Owner's
interest therein, for work claimed to have been done, or for materials claimed
to have been furnished to Tenant, shall be discharged by Tenant within one
hundred twenty (120) days thereafter, at Tenant's sole cost and expense, by
filing a bond as provided by law or otherwise. If Tenant shall fail to have
discharged any lien or encumbrance described in this Article, Owner, shall have
the right but not the obligation, to cause such lien or encumbrance to be
discharged by bonding or otherwise, and Tenant shall reimburse Owner as an item
of additional rent, for all actual costs and expenses which owner incurs,
including reasonable attorneys' fees and disbursements, within ten (10) days
following written demand.
57. GOVERNMENTAL REGULATIONS
A. In the event the Tenant makes any alterations,
decorations, installations, etc., including but not limited to, Tenant's
changes, if any, that do not comply with applicable building regulations,
administrative agency, governmental or quasi-governmental agency regulations, or
that may result in the imposition of any fines, penalties (civil or criminal) or
any monetary awards, costs or fees against Landlord, Tenant shall be liable for
any and all costs associated therewith including, but not limited to, attorney's
fees, architects' fees, engineering fees, penalties, fines, renovation costs,
construction costs, consultation and any and all other costs, which shall be
deemed additional rent and due upon receipt of Owner's statement therefor.
-10-
43
B. Supplementing the provisions of Article 6 hereof,
Tenant shall promptly comply with and give prompt notice to Owner of any notice
it receives of the violation of any present or future law, order, ordinance, or
regulation of any governmental entity, department, commission, or any direction
of any public officer pursuant to law or of the New York Board of Fire
Underwriters or the use or occupation thereof, and Tenant shall effect such
compliance its sole cost and expense.
58. LIMITATION ON RENT
A. If, at the commencement of, or at any time during the
term of this lease, the rent reserved in this Lease is not fully collectible by
reason of any federal, state, county or city law, proclamation, order or
regulation, or direction of a public officer or body pursuant to law, Tenant
agrees to take such steps as Owner may request to permit Owner to collect the
maximum rents which may be legally permissible from time to time during the
continuance of such legal rent restriction (but not in excess of the amounts
reserved therefore under this Lease). Upon the termination of such legal rent
restriction, Tenant shall pay to Owner to the extent permitted by law, an amount
equal to (a) the rents which would have been paid pursuant to this lease to such
legal rent restriction less (b) the rents paid by Tenant to Owner during the
period such legal rent restriction was in effect.
B. To the maximum extent permitted by law, Tenant hereby
waives any right to continued occupancy of the demised premises after the
expiration of the Lease imposed by any statute, rule or ordinance. If Tenant by
regulatory statute, rule or ordinance is entitled to continued occupancy, and so
long as such stature is in effect or applies to Tenant, then Tenant shall be
obligated to pay rent on a month-to-month basis at a new base rent equal to 125%
of the highest monthly rent set forth in this Lease plus any and all additional
rents denominated herein, and the terms herein shall ply to such statutory
tenancy to the extent they do not conflict with statute, rule or ordinance.
59. ENTIRE AGREEMENT
This Lease contains the entire understanding arrived at
between the parties and all prior discussions and negotiations are merged herein
and may not be extended, renewed, terminated, or otherwise modified except by an
instrument in writing signed by the party against whom enforcement of any such
modification if sought.
60. LEASE NOT BINDING UNLESS EXECUTED AND DELIVERED
It is specifically understood and agreed that this Lease
is offered to Tenant for signature subject to Owner's acceptance and approval
and that Tenant has hereunto
-11-
44
affixed its signature with the understanding that this Lease shall not in any
way bind owner until such time as the same has been approved and executed by
Landlord and delivered to Tenant.
61. SEVERABILITY
This lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease or any part thereof to be drafted. If any provision of this Lease shall be
determined to be void or unenforceable by any court of competent jurisdiction,
then such determination shall not affect any other provisions of this Lease, all
of which other provisions shall remain in full force and effect; and it is the
intention of the parties hereto that if any provision of this Lease is capable
of two constructions, one which would render the provision valid, then the
provision shall have the meaning which renders it valid.
62. NO COUNTERCLAIMS
Tenant shall and hereby does waive its right and agrees
not to interpose any counterclaim or set off, of whatever nature or description,
in any proceeding or action that may be instituted by Owner against Tenant to
recover rent, additional rent, other charges, possession, or for damages, or in
connection with any matters or claims whatsoever arising out of our in any way
connected with this lease, or any renewal, extension, holdover, or modification
thereof, or the relationship of owner and Tenant, or Tenant's use or occupancy
of said premises. This clause, as well as the "waiver of jury trial" provision
of this lease, shall survive the expiration, early termination, or cancellation
of this lease or the term thereof. Nothing herein contained, however, shall be
construed as a waiver of Tenant's right to commence a separate action on a bona
fide claim against Owner.
63. OWNER'S CONSENT
If Tenant shall request Owner's approval or consent and
Owner shall fail or refuse to give such approval or consent, Tenant shall not be
entitled to any damages for any withholding or delay of such approval or consent
by Owner except where it is determined that Owner's willfully acted in bad faith
it otherwise being intended that Tenant's sole remedy shall be an action for
injunction or specific performance (the rights to money damages or other
remedies being hereby specifically waived), and that such remedy shall be
available only in those cases where Owner shall have expressly agreed in writing
not to unreasonably withhold its consent or approval or where, as a matter of
law, Owner may not unreasonably withhold its consent or approval.
-12-
45
64. SUBORDINATION AND ATTORNMENT
A. This Lease and all rights of Tenant hereunder are and
shall be subject and subordinate in all respects to all underlying leases and to
all mortgages and building loan agreements, including without limitation
leasehold mortgages, which may now or hereafter affect the land and/or the
building and/or any of such leases, whether or not such mortgages shall also
cover other lands and/or buildings, to each and every advance made or hereafter
to be made under such mortgages and/or building loan agreements, and all
renewals, modifications, replacements, assignments, and extensions of such
leases, building loan agreements, mortgages and spreaders and consolidations of
such mortgages.
This Article shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly, at its sole cost and expense, execute and
deliver any instrument in recordable form that Owner, the lessor of any such
lease of the holder of any such mortgage or any of their respective assigns or
successors-in-interest may reasonably request to evidence such subordination.
The leases to which this Lease is, at the time referred to, subject and
subordinate pursuant to this Article are hereinafter sometimes called "superior
leases" and the mortgages to which this Lease is, at the time referred to,
subject and subordinate pursuant to this Article are hereinafter sometimes
called "superior mortgages" and the lessor of a superior lease or its
successor-in-interest, at the time referred to, is sometimes hereinafter called
a "lessor" and the holder of a superior mortgage or its successor-in-interest at
the time referred to is sometimes hereinafter called a "holder".
B. In the event of any act or omission of Owner which
would give tenant the right, immediately or after lapse of a period off time, to
cancel or terminate this lease, or to claim a partial or total eviction, Tenant
shall not exercise such right (i) until it has given written notice of such act
or omission to the lease, and (ii) unless such act or omission shall be one
which is not capable of being remedied by Owner or such holder or lessor within
a reasonable period of time, until a reasonable period of time, for remedying
such act or omission shall have elapsed following the giving of such notice and
following the time when such holder or lessor shall have become entitled under
such superior mortgage or superior lease, as the case may be, to remedy the same
(to which reasonable period shall in no event be less that the period to which
Owner would be entitled under this Lease otherwise, after similar notice, to
effect such remedy, ) provided such holder or lessor shall with due diligence
give Tenant written notice of its intention to and commence and continue to,
remedy such act or omission.
C. If the fee owner of the lands and/or building of which
the demised premises form a part, the lessor of a superior lease of the holder
of a superior mortgage shall succeed to the rights of Owner under this lease,
whether through possession or foreclosure action or through termination for any
reason of the leasehold estate covering the lands and/or building or by delivery
succeeding to Owner's rights (herein sometimes called "successor Landlord") and
upon such successor Owner's written agreement to accept Tenant's attornment,
Tenant shall attorn to and recognize such successor landlord as Tenant's
landlord under this
-13-
46
Lease. The foregoing provisions shall inure to the benefit of any such successor
Landlord, and shall be self-operative upon any demand, without requiring any
further instrument to give effect to said provisions. Tenant, however, upon
demand of any such successor landlord, agrees to execute, from time to time, an
instrument in confirmation of such attornment which is satisfactory to such
successor landlord. Upon such attornment this lease shall continue in full force
and effect for the remainder of the term originally demised under this lease as,
or as if it were, a direct lease between successor landlord and Tenant upon all
of the terms, covenants, conditions, agreements and provisions as are set forth
in this lease except that the successor landlord shall not:
(i) be liable for any previous act or omission of owner
under this Lease;
(ii) be subject to any offset, not expressly provided for
in this lease, which shall have theretofore accrued to Tenant against Owner or
(iii) be bound by any previous modification of this lease,
not expressly provided for in this lease, or by any previous prepayment of more
than one month's installments of fixed annual rent, unless such modification or
prepayment shall have been expressly approved in writing by the successor
landlord through or by reason of which the successor landlord shall have
succeeded to the rights of Owner under this lease.
D. Landlord hereby agrees to request from any lessor under
a Superior Lease, or trustee or mortgages of a Mortgage superior to the interest
of Tenant hereunder, an agreement in the standard form customarily employed by
such lessor, trustee or mortgagee pursuant to which such lessor, trustee, or
mortgagee shall agree that the leasehold estate granted to Tenant and the rights
of Tenant pursuant to this Lease to quiet and peaceful possession under this
Lease shall not be terminated, modified, affected or disturbed by an action
which any such trustee or mortgagee may take to foreclose any such mortgage, or
which any such lessor may take to terminate such Superior Lease. Such agreement
shall remain in effect so long as Tenant shall pay the Rent, escalations,
additional rents, and other amounts to be paid by Tenant under the Lease, within
any applicable grace periods provided for hereunder, without offsets or defenses
thereto, and as long as Tenant shall fully perform and comply with all the other
terms, covenants, conditions and provisions of this Lease on the part of the
Tenant to be performed or complied with.
65. OCCUPANCY TAX
Tenant shall pay any occupancy tax or rent tax now in
effect or hereafter enacted directly to the taxing authority responsible for the
collection of the same. In the event such occupancy tax or rent tax is payable
by Owner in the first instance or hereafter required to be paid by owner, such
tax shall be paid to owner additional rent within ten (10) days following
Owner's written demand therefor. Nothing contained herein shall be deemed to
require
-14-
47
Tenant to pay municipal, state, federal income, inheritance, estate,
succession, transferor gift or any corporate franchise tax imposed upon Owner.
66. REPAIRS AND MAINTENANCE
A. Tenant shall, at its sole cost and expense, take good
care of and make all interior repairs and replacements to the demised premises
and the fixtures and appurtenances therein, nonstructural, foreseen and/or
unforseen, and ordinary and/or extraordinary during the Term of this lease,
which shall include, without limitation, all repairs and replacements of the
demised premises, electrical, ventilating systems, floors, walls, ceiling,
doors, pipes, conduits appurtenant to the demised premises as and when needed so
as to preserve, maintain and/or keep the demised premises in good working order,
conditions and/or repair and in tenantable condition, reasonable wear and tear,
obsolescence and damage from the elements, fire and other casualty.
B. The quality of workmanship and materials used with
respect to the repairs, replacements, maintenance and other work required to be
done under the Article and/or Article 4 hereof shall be at least equal in
quality and class to the original materials and workmanship.
67. CONFLICTS
If there is any conflict between the terms contained in
the printed form lease and the terms contained in this Rider, the provisions of
this Rider shall govern.
68. HOLDING OVER
Should Tenant hold over in possession after the expiration
or sooner termination of the term of the Lease, such holding-over shall not be
deemed to extend or renew this Lease, but such holding-over shall be on the
terms and conditions of this Lease except that the charge for use and occupancy
for each calender month shall be 125% of the highest monthly rent set forth in
this Lease plus all items of additional rent set forth herein.
69. ASSIGNMENT AND SUBLETTING
Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assignees, expressly
covenants that it shall not assign, mortgage, pledge, encumber, or otherwise
transfer this Lease, nor underlet, nor suffer, nor permit the Premises or any
part thereof to be used or occupied by others (whether for desk space, mailing
privileges or otherwise), without the prior written consent of Landlord in each
instance
-15-
48
which shall not be unreasonably withheld or delayed. If this Lease be assigned,
or if the Premises or any part thereof be underlet or occupied by anybody other
than Tenant, Landlord may, after default by Tenant, collect rent from the
assignee, undertenant or occupant, and apply the net amount collected to the
Rent herein reserved, but no assignment, underletting, occupancy or collection
shall be deemed a waiver of the provisions hereof, the acceptance of the
assignee, undertenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Landlord to an assignment or underletting shall not in
any way be construed to relieve Tenant from obtaining the express consent in
writing of Landlord to any further assignment or underletting. In no event shall
any permitted sublessee assign or encumber its sublease or further sublet all or
any portion of its sublet space, or otherwise suffer or permit the sublet space
or any part thereof tor be used or occupied by others, without Landlord's prior
written consent, in each instance. Any assignment, sublease, mortgage, pledge,
encumbrance or transfer in contravention of this Article shall be void.
Owner hereby agrees that Tenant may allow all or part of
the premises to be occupied by its affiliates or sublet all or part of the
premises to its affiliates provided, that such agreements, terms, provisions and
conditions contained in this Lease. Owner shall cause to list Tenant and its
affiliates to be posted on the building directory in the lobby. Tenant may also
assign this Lease to an affiliate. A transfer of this Lease in connection with a
merger, sale of assets or corporate acquisition or reorganization shall not
require Landlord's consent, nor shall a transfer of Tenant's stock in connection
with a public offering, private placement or sale to any outside part
constitutes an assignment requiring Landlord's consent.
70. Notwithstanding anything to the contrary contained herein,
Owner shall remain responsible for maintaining and repairing the heating and
plumbing systems (except Air-conditioning) provided such repair results from
problems not caused by Tenant, its affiliates, its agents, its employees or its
contractors.
71. Tenant has requested and Owner has agreed to allow
non-powered bicycles to be brought in the Demised Premises, provided however
that, the freight elevators which are open on weekdays (Monday through Friday
between 10:00 a.m. to 6:00 p.m.) are used only to transport them from street
level floor to the 2nd floor).
Tenant shall assume all liability including but not
limited to theft, damage to property and any third party claim, with respect to
the bicycles being brought into the building.
72. Notwithstanding anything to the contrary contained herein,
Tenant shall have access to building 24 hours a day, 7 days a week by private
key. However, Owner shall not provide heat and freight elevator services on
holidays and after office hours.
-16-
49
73. Tenant is aware that currently the premises are occupied.
Owner shall try to deliver vacant premises by February 28, 1999. In the event
there is delay in delivering the vacant possession of the premises, then the
rent shall begin 45 days after delivery of vacant possession. Tenant may
terminate the lease if possession is not delivered by March 31, 1999.
R.A.A. Realty Company L.P.
--------------------------
Owner.
By: /s/
----------------------
Medscape Inc.
--------------------------
Tenant.
By: /s/ Xxxxxx Xxxxx
--------------------------
-17-
