Exhibit 10.39
INDENTURE OF LEASE made as of this day of March, 2000, between 622
BUILDING COMPANY LLC, a New York limited liability company, having an office at
750 Lexington Avenue, New York, New York 10022 ("Landlord") and CMGI Inc., a
Delaware corporation having an office at 100 Brickstone Square, Andover,
Massachusetts 01810 ("Tenant").
W I T N E S S E T H :
ARTICLE 1
Premises; Term
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
the following space ("Demised Premises"): the entire 9/th/ and 11/th/ and part
of the 10th floors as shown crosshatched on the floor plan (Schedule A) attached
hereto, in the office building known as and by the street number 622 Third
Avenue, in the Borough of Manhattan, City and State of New York ("Building"),
upon and subject to the terms, covenants and conditions hereafter set forth.
TO HAVE AND TO HOLD the Demised Premises unto Tenant for a term
commencing on March 15, 2000 (the "Commencement Date") (subject to Section 2.01)
and ending on August 31, 2007 (the "Expiration Date"), or on such earlier date
upon which said term may expire or terminate pursuant to the conditions of this
Lease or pursuant to law.
IT IS MUTUALLY COVENANTED AND AGREED between Landlord and Tenant as
follows:
ARTICLE 2
Commencement of Term
Section 2.01. The term of this Lease, for which the Demised Premises
are hereby leased, shall commence on the Commencement Date, and the Landlord
shall deliver possession of the Demised Premises on the Commencement Date and
deliver a countersigned original of this Lease on or before such date. Delivery
of possession of the Demised Premises includes delivery of keys and reasonable
access to and from all portions of the Demised Premises.
Section 2.02. Tenant has fully inspected the Demised Premises, is
familiar with the condition thereof and agrees to accept possession of the same
on the Commencement Date. Landlord shall not be required to do any work therein
to make the same suitable for the operation of Tenant's business.
1
Section 2.03. Promptly after the Commencement Date, Landlord and
Tenant shall execute a statement in recordable form confirming the agreed upon
Commencement and Expiration Dates of this Lease, in accordance with the
foregoing provisions.
ARTICLE 3
Rent
Section 3.01. Tenant shall pay as rent for the Demised Premises, the
following:
(a) a fixed minimum rent (the "minimum rent") at the annual rate
of $3,375,000.00 per annum (or $281,250.00 per month), provided if the
Commencement Date is not the first day of a month, then the minimum rent
for such month shall be prorated; and
(b) all other sums and charges required to be paid by Tenant
under the terms of this Lease (including without limitation, the payments
required to be made under Article 22), which shall be deemed to be and are
sometimes referred to hereafter as additional rent.
Section 3.02. Notwithstanding the provisions of Section 3.01 hereof
and provided Tenant is not then in default under any of the provisions of this
Lease on its part to be performed, Tenant shall be entitled to an abatement of
the minimum rent only as follows: the amount of $281,250.00 for each of the
1/st/, 2/nd/, 3/rd/, 37/th/ and 49/th/ full months of the term succeeding the
Commencement Date. Tenant acknowledges that the consideration for the aforesaid
abatement of minimum rent is Tenant's agreement to perform all of the terms,
covenants and conditions of this Lease on its part to be performed. Tenant shall
be required to pay additional rent from and after the Commencement Date.
Section 3.03. The minimum rent shall be payable in equal monthly
installments in advance on the first day of each and every month during the term
of this Lease, except that the amount of $281,250.00 shall be paid upon the
execution of this Lease and applied to the payment of minimum rent for the
fourth (4th) full month of the term.
2
Landlord and Tenant agree that Tenant shall pay minimum rent,
additional rent and other amounts now due or hereafter to become due to the
Landlord or its agents as provided for in this Lease, (as and when due) directly
to the following lock-box account:
622 Building Company LLC
P.O. Box 41007
Newark, New Jersey 07101-8700
All rent checks shall be made payable to 622 Building Company LLC.
Section 3.04. Tenant shall pay the minimum rent and additional rent
in lawful money of the United States which shall be legal tender for the payment
of all debts, public and private, at the time of payment.
Section 3.05. The minimum rent and additional rent shall be payable
by Tenant without any set-off, abatement or deduction whatsoever and without
notice or demand, except as otherwise expressly provided herein.
ARTICLE 4
Use
Section 4.01. Tenant shall use and occupy the Demised Premises for
administrative, executive and general office purposes only, including a data
center and computer room.
Section 4.02. Notwithstanding the provisions of Section 4.01, Tenant
shall not use or allow the use of the Demised Premises or any part thereof (1)
for the cooking and/or sale of food, except that Tenant may have a coffee maker
and warm foods through a microwave; (2) for storage for sale of any alcoholic
beverage in the Demised Premises; (3) for the storage and/or sale of any product
or material from the Demised Premises; (4) for manufacturing or printing
purposes; (5) for the conduct of a school or training facility or similar type
of business which results in the presence of the general public in the Demised
Premises, except that Tenant may have training classes for its personnel
incidental to its business; (6) for the conduct of the business of an employment
agency or personnel agency; (7) for the conduct of any public auction or public
exhibition; (8) for occupancy by a foreign, United States, state, municipal or
other governmental or quasi-governmental body, agency or department or any
authority or other entity which is affiliated therewith or controlled thereby
and which has diplomatic or sovereign immunity or the like with respect to a
commercial lease; (9) for messenger or delivery service (excluding Tenant's own
employees or outside services); (10) as a public stenographer or typist; (11) as
a telephone or telegraph agency, except that Tenant as an incident to its
business may have audio visual and closed circuit television facilities and
other types of telecommunication equipment; (12) as a company engaged in the
business of renting office(s) or desk space in the Demised Premises; (13) as
medical offices or a laboratory; (14)
as a travel agency; (15) as a dating service; (16) as a restaurant; (17) as a
night club, discotheque, arcade or like kind establishments; (18) as a public or
quasi-public health facility, radiation treatment facility, methadone clinic or
other drug related clinic, abortion clinic, or for any practice conducted in or
through the format of a clinic; (19) as a pawn shop; (20) as an off-track
betting parlor; (21) as a homeless shelter, soup kitchen or similar use; (22)
for the sale or display or pornographic products or services; (23) for the use
or storage of flammable liquids or chemicals (unless incidental to a permitted
use); (24) as a funeral parlor; (25) for the sale or grooming of pets; or (26)
for any form of spiritualist services, such a fortune telling or reading.
Furthermore, the Demised Premises shall not be used for any purpose that would,
in Landlord's reasonable judgment, create unreasonable or excessive elevator or
floor loads, impair or interfere with any of the Building operations or the
proper and economic heating, air-conditioning, cleaning or any other services of
the Building, interfere with the use of the other areas of the Building by any
other tenants, or impair the appearance of the Building. Neither Tenant nor any
person within Tenant's control shall use, generate, store, treat and/or dispose
of any Hazardous Materials (as hereinafter defined) in, on, under or about the
Demised Premises, except for small quantities customarily used in offices and in
compliance with all applicable laws.
Section 4.03. If any governmental license or permit, other than a
Certificate of Occupancy or any license or permit required for the proper and
lawful conduct of Tenant's business in the Demised Premises, or any part
thereof, and if failure to secure such license or permit would in any way affect
Landlord, Tenant, at its expense, shall duly procure and thereafter maintain
such license or permit and submit the same for inspection by Landlord. Tenant
shall at all times comply with the terms and conditions of each such license or
permit.
Section 4.04. Tenant shall not at any time use or occupy, or permit
anyone to use or occupy, the Demised Premises, or do or permit anything to be
done in the Demised Premises, in violation of the Certificate of Occupancy, for
the Demised Premises or for the Building, and will not permit or cause any act
to be done or any condition to exist on the Demised Premises which may be
dangerous unless safeguarded as required by law, or which in law constitutes a
nuisance, public or private, or which may make void or voidable any insurance
then in force covering the Building and building equipment.
Section 4.05. Landlord represents that the existing Certificate of
Occupancy permits the use of the Demised Premises for the purposes set forth in
Section 4.01, and that Landlord shall not change the Certificate of Occupancy to
prohibit such uses.
ARTICLE 5
Alterations, Fixtures
Section 5.01. Tenant, without Landlord's prior consent, shall make no
structural alterations, installations, additions, or improvements in or to the
Demised Premises ("work") including, but not limited to, an air-conditioning or
cooling system, or any unit or part
thereof or other apparatus of like or other nature, railings, mezzanine floors,
galleries and the like. However, Tenant may make non-structural interior work,
subject to Landlord's prior written consent which shall not be unreasonably
withheld or delayed. Notwithstanding the foregoing, Tenant, without Landlord's
consent but subject to Landlord's approval of contractors, may make non-
structural interior work which does not affect the structural integrity of the
Building or the Building systems, does not affect the other tenants in the
Building, does not violate any mortgage, does not cost more than $50,000 in the
aggregate during any twelve (12) month period, and Tenant has given not less
than ten (10) days prior notice thereof. With respect to any work requiring
Landlord's approval and performance by any contractor other than Landlord,
Tenant shall pay to Landlord ten (10%) percent of the cost of such work for
supervision, coordination and other expenses incurred by Landlord in connection
therewith. However, such ten (10%) percent charge shall not apply to Tenant's
initial work in the Demised Premises nor does it apply to painting,
wallcovering, carpeting or furnishings. Tenant acknowledges that the ICIP
Program (as hereinafter defined) may impose requirements with respect to the
hiring and training practices, among other matters, of contractors and
subcontractors engaged to perform certain work in the Building for Tenant
(collectively, herein called "Tenant's Contractors"). To the extent required by
law, Tenant shall use Tenant's Contractors (subject to Landlord's approval )
that qualify under the applicable requirements of the ICIP Program for the
performance of Tenant's initial work and any subsequent alterations to the
Demised Premises and Tenant will require Tenant's Contractors to comply with the
provisions of the ICIP Program. If Landlord is notified of any violation of the
ICIP Program by Tenant's Contractors (to the extent such contractors are
required by law to comply with the ICIP Program) Landlord shall promptly advise
Tenant, and Tenant shall take all necessary actions to cure such violations.
Workers' compensation and public liability insurance and property damage
insurance, all in amounts and with companies and/or forms reasonably
satisfactory to Landlord, shall be provided and at all times maintained by
Tenant's contractors engaged in the performance of the work, and before
proceeding with the work, certificates of such insurance shall be furnished to
Landlord. If consented to by Landlord, all such work shall be done at Tenant's
sole expense and in full compliance with all governmental authorities having
jurisdiction thereover. Upon completion of such work, Tenant shall deliver to
Landlord full scale "as built" plans for the same. Landlord upon request of
Tenant, will waive its right to any lien upon Tenant's trade fixtures and
equipment, in such form as shall be reasonably acceptable to Landlord. All work
affixed to the realty or if not so affixed but for which Tenant shall have
received a credit, shall become the property of Landlord, subject to Tenant's
right to replace same during the term hereof with items of equal quality class
and value, and shall remain upon, and be surrendered with, the Demised Premises
as a part thereof at the end of the term or any renewal or extension term, as
the case may be, without allowance to Tenant or charge to Landlord, unless
Landlord elects otherwise on notice to Tenant given at the time that Landlord
has consented to the work. However, if Landlord shall elect at the time Tenant
requests consent to any work, otherwise, Tenant at Tenant's expense, at or prior
to any termination of this Lease, shall remove all such work or such portion
thereof as Landlord shall elect and Tenant shall restore the Demised Premises to
its original condition, reasonable wear and tear excepted, at Tenant's expense.
However, Tenant shall not be obligated to remove its initial work in the Demised
Premises. If any Building facilities or services, including but not
limited to air-conditioning and ventilating equipment installed by Landlord, are
adversely affected or damaged by reason of the work by Tenant, Tenant, at its
expense, shall repair such damage to the extent such damage has been caused by
Tenant's work and shall correct the work so as to prevent any further damage or
adverse effect on such facilities or services.
Section 5.02. Prior to commencing any work pursuant to the provisions
of Section 5.01, Tenant shall furnish to Landlord:
(a) Plans and specifications for the work to be done. However,
if Landlord fails to respond to Tenant's request for Landlord's consent to
the work within ten (10) business days after its receipt of such request
together with all required information, then Landlord shall be deemed to
have consented thereto.
(b) Copies of all governmental permits and authorizations which
may be required in connection with such work.
(c) A certificate evidencing that Tenant (or Tenant's contractor)
has procured workers' compensation insurance covering all persons employed
in connection with the work who might assert claims for death or bodily
injury against Landlord, Tenant, any mortgagee or the Building.
(d) Such additional personal injury and property damage insurance
(over and above the insurance required to be carried by Tenant pursuant to
the provisions of Section 9.03) as Landlord may reasonably require because
of the nature of the work to be done by Tenant.
(e) With respect to Tenant's work, other than Tenant's initial
work, exceeding the cost of $50,000, a bond or other security satisfactory
to Landlord, in the amount of one hundred ten (110%) percent of the
aggregate cost of the work, to insure completion of such work.
Section 5.03. Where furnished by or at the expense of Tenant (except
the replacement of an item theretofore furnished and paid for by Landlord or for
which Tenant has received a credit), all movable property, furniture,
furnishings, roller files, equipment and trade fixtures ("personalty") other
than those affixed to the realty in such manner as to cause material damage upon
its removal, shall remain the property of and shall be removed by Tenant on or
prior to any termination or expiration of this Lease, and, in the case of damage
by reason of such removal, Tenant, at Tenant's expense, promptly shall repair
the damage. If Tenant does not remove any such personalty, Landlord, after two
(2) business days notice to Tenant, at its election, (a) may cause the
personalty to be removed and placed in storage at Tenant's expense or (b) may
treat the personalty as abandoned and may dispose of the personalty as it sees
fit without accounting to Tenant for any proceeds realized upon such disposal.
Section 5.04. Tenant agrees that the exercise of its rights pursuant
to the
provisions of this Article 5 shall not be done in a manner which would create
any work stoppage, picketing, labor disruption or dispute or violate Landlord's
union contracts affecting the Building or interfere with the business of
Landlord or any Tenant or occupant of the Building. In the event of the
occurrence of any condition described above arising from the exercise by Tenant
of its right pursuant to the provisions of this Article 5, Tenant shall,
immediately upon notice from Landlord, cease the manner of exercise of such
right giving rise to such condition. In the event Tenant fails to cease such
manner of exercise of its rights as aforesaid, Landlord, in addition to any
rights available to it under this Lease and pursuant to law, shall have the
right to injunction. With respect to Tenant's work, Tenant shall make all
arrangements for, and pay all expenses incurred in connection with, use of the
freight elevators servicing the Demised Premises during those hours other than
as provided in Section 21.01(a) in accordance with Landlord's customary charges
therefor.
ARTICLE 6
Repairs
Section 6.01. Except as provided in Articles 10 and 14, Tenant shall
take good care of the Demised Premises and the fixtures wholly contained therein
and all portions of the HVAC, mechanical, plumbing and electrical systems wholly
contained within and exclusively serving the Demised Premises, and at its sole
cost and expense make all repairs thereto as and when needed to preserve them in
good working order and condition. All damage or injury to the Demised Premises
or the Building or to any building equipment or systems caused by Tenant moving
property in or out of the Building or by installation or removal of personalty
or resulting from negligence or conduct of Tenant, its employees, agents,
contractors, customers, invitees and visitors, shall be repaired, promptly by
Tenant at Tenant's expense, and whether or not involving structural changes or
alterations, to the satisfaction of Landlord. All repairs shall include
replacements or substitutions where necessary and shall be at least equal to
the quality, class and value of the property repaired, replaced or substituted
and shall be done in a good and workmanlike manner.
Section 6.02. Landlord, at its expense, shall maintain and make all
repairs and replacements, structural and otherwise, to the exterior and public
portions of the Building, the Building systems up to its connection with the
Demised Premises, and to the Demised Premises, unless Tenant is required to make
them under the provisions of Section 6.01 or unless required as a result of the
performance or existence of alterations performed by Tenant or on Tenant's
behalf, in which event Tenant, at its expense, shall perform such maintenance,
repairs or replacements. Tenant shall notify Landlord of the necessity for any
repairs for which Landlord may be responsible in the Demised Premises under the
provisions of this Section. Landlord shall have no liability to Tenant by
reason of any inconvenience, annoyance, interruption or injury to business
arising from Landlord's making any repairs or changes which Landlord is required
or permitted by this Lease, or required by law, to make in or to any portion of
the Building or the Demised Premises, or in or to the fixtures, equipment or
appurtenances of the Building or the Demised Premises. Notwithstanding the
foregoing,
Landlord shall use reasonable efforts to make such repairs or changes in a
manner to minimize its interference with the normal conduct of Tenant's
business, provided Landlord shall not be required to employ overtime or premium
labor.
Section 6.03. Tenant shall not store or place any materials or other
obstructions in the lobby or other public portions of the Building, or on the
sidewalk abutting the Building.
ARTICLE 7
Floor Load; Noise
Section 7.01. Tenant shall not place a load upon any floor of the
Demised Premises which exceeds the load per square foot which such floor was
designed to carry (50 lbs. live per square foot).
Section 7.02. Business machines and mechanical equipment belonging to
Tenant which cause noise, vibration or any other nuisance that may be
transmitted to the structure or other portions of the Building or to the Demised
Premises, to such a degree as to be objectionable to Landlord or which interfere
with the use or enjoyment by other tenants of their premises or the public
portions of the Building, shall be placed and maintained by Tenant, at Tenant's
expense, in settings of cork, rubber or spring type vibration eliminators
sufficient to eliminate such objectionable or interfering noise or vibration.
ARTICLE 8
Laws, Ordinances, Requirements of Public Authorities
Section 8.01. (a) Subject to the provisions of this Article 8,
Tenant, at its expense, shall comply with all laws, orders, ordinances,
rules and regulations and directions of Federal, State, County and
Municipal authorities and departments thereof having jurisdiction over the
Demised Premises and the Building, including but not limited to the
Americans With Disabilities Act ("Governmental Requirements"), referable to
Tenant or the Demised Premises, arising by reason of Tenant's particular
manner of use of the Demised Premises (other than in contradistinction
merely for the office uses permitted in Section 4.01) or any installations
made therein by or at Tenant's request, or any default by Tenant under this
Lease.
(b) Except as otherwise provided herein, Tenant covenants and
agrees that Tenant shall, at Tenant's sole cost and expense, comply at all
times with all Governmental Requirements governing the use, generation,
storage, treatment and/or disposal of any "Hazardous Materials" (which term
shall mean any biologically or chemically active or other toxic or
hazardous wastes, pollutants or substances, including, without limitation,
asbestos, PCBs,
petroleum products and by-products, substances defined or listed as
"hazardous substances" or "toxic substances" or similarly identified in or
pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. (S) 9601 et seq., and as hazardous wastes under
the Resource Conservation and Recovery Act, 42 U.S.C. (S) 6010 et seq., any
chemical substance or mixture regulated under the Toxic Substance Control
Act of 1976, as amended, 15 U.S.C. (S) 2601 et seq., any "toxic pollutant"
under the Clean Water Act, 33 U.S.C. (S) 466 et seq., as amended, any
hazardous air pollutant under the Clean Air Act, 42 U.S.C. (S) 7401 et
seq., hazardous materials identified in or pursuant to the Hazardous
Materials Transportation Act, 49 U.S.C. (S) 1802 et seq., and any hazardous
or toxic substances or pollutant regulated under any other Governmental
Requirements). Tenant shall agree to execute, from time to time, at
Landlord's request, affidavits, representations and the like concerning
Tenant's best knowledge and belief regarding the presence of Hazardous
Materials in, on, under or about the Demised Premises, the Building or the
Land. Tenant shall indemnify and hold harmless Landlord, its partners,
officers, shareholders, members, directors and employees, Overlandlord and
any mortgagee (collectively, the "Indemnitees"), from and against any loss,
cost, damage, liability or expense (including attorneys' fees and
disbursements) arising by reason of any cleanup, removal, remediation,
detoxification action or any other activity required or recommended of any
Indemnitees by any government authority by reason of the presence in or
about the Land, the Building or the Demised Premises of any Hazardous
Materials, as a result of or in connection with the act or omission of
Tenant or any person or entity within Tenant's control or the breach of
this Lease by Tenant or any person or entity within Tenant's control. The
foregoing covenants and indemnity shall survive the expiration of any
termination of this Lease. Tenant, at its own cost and expense, may
contest, in any manner permitted by Governmental Requirements (including
appeals to a court, governmental department or authority having
jurisdiction), the validity or the enforcement of any Government
Requirements which Tenant is required to comply, and may defer compliance,
provided that (i) such non-compliance shall not subject Landlord to
criminal prosecution or subject the Land and/or Building to sale or any
lien, unless Tenant posts a bond to remove such lien, (ii) Tenant shall
indemnify Landlord against any cost, damage or injury from such non-
compliance, and if any mortgagee shall require, Tenant shall deliver a
surety bond by a surety company approved by such mortgagee and Landlord
with respect to such indemnity, and (iii) Tenant shall promptly, diligently
and continuously prosecute such contest. Landlord, at no expense to
Landlord, shall cooperate with Tenant and execute any required documents,
provided Landlord is reasonably satisfied that the facts set forth in such
documents are accurate.
(c) Landlord, at its expense, shall comply with and cure
Governmental Requirements relating to the public portions of the Building
and
to the Demised Premises, provided that Tenant is not obligated to comply
with them under the provisions of subdivision (a) of this Section.
Landlord, at its expense, may contest the validity of any Governmental
Requirements and postpone compliance therewith pending such contest.
(d) Landlord represents that on the Commencement Date the Demised
Premises will be free of Hazardous Materials and in compliance with
applicable Governmental Requirements. Landlord, at its expense, agrees to
remedy any condition arising out of a breach of the representations
contained in this subdivision (d) and agrees to indemnify and hold Tenant
harmless from and against any costs, expenses and damages arising out of a
breach of such representations.
Section 8.02. If Tenant receives written notice of any violation of
any Governmental Requirements applicable to the Demised Premises, it shall give
prompt notice thereof to Landlord.
Section 8.03. Tenant will not clean, nor allow any window in the
Demised Premises to be cleaned, from the outside in violation of Section 202 of
the Labor Law or the rules of the Board of Standards and Appeals or of any other
board or body having or asserting jurisdiction.
ARTICLE 9
Insurance
Section 9.01. Provided Tenant has notice of the applicable
provisions, Tenant shall not do or permit to be done any act or thing in or upon
the Demised Premises which will invalidate or be in conflict with the
Certificate of Occupancy for the Building or the terms of the insurance policies
covering the Building and the property and equipment therein; and, subject to
Section 8.01, Tenant, at its expense, shall comply with all rules, orders,
regulations and requirements of the New York Board of Fire Underwriters or any
other similar body having jurisdiction, and of the insurance carriers, and shall
not knowingly do or permit anything to be done in or upon the Demised Premises
in a manner which increases the rate of insurance for the Building or any
property or equipment therein over the rate in effect on the Commencement Date,
provided further that nothing in this Section shall prohibit the uses permitted
under Section 4.01.
Section 9.02. If, by reason of Tenant's failure to comply with the
provisions of Section 9.01 or any of the other provisions of this Lease, the
rate of insurance for the Building or the property and equipment of Landlord
shall be higher than on the Commencement Date, Tenant shall pay to Landlord any
additional or increased insurance premiums to the extent resulting therefrom
thereafter paid by Landlord, and Tenant shall make such payment forthwith on
demand of Landlord. In any action or proceeding wherein Landlord and Tenant
are parties, a schedule or "make up" of any insurance rate for the Building or
Demised Premises issued by the New York Fire Insurance Exchange, or other body
establishing fire insurance rates for the Building, shall be conclusive evidence
of the facts therein stated and of the several items and charges in the
insurance rates then applicable to the Building or Demised Premises.
Section 9.03. (a) Tenant covenants to provide on or before the
Commencement Date and to keep in force during the term hereof, the
following insurance coverage:
(i) For the benefit of Landlord, Tenant and any mortgagee, a
commercial policy of liability insurance protecting and indemnifying
Landlord, Tenant and any mortgagee against any and all claims for
personal injury, death or property damage occurring upon, in or about
the Demised Premises, and the public portions of the Building in
connection with any act of Tenant, its employees, agents, contractors,
customers, invitees and visitors including, without limitation,
personal injury, death or property damage resulting from any work
performed by or on behalf of Tenant, with coverage of not less than
$5,000,000.00 combined single limit for personal injury, death and
property damage arising out of one occurrence or accident.
(ii) Fire and extended coverage in an amount adequate to
cover the cost of replacement of all personal property, fixtures,
furnishings and equipment, including Tenant's work (as referred to in
Section 5.01), located in the Demised Premises.
(b) All such insurance shall (i) be effected under valid and
enforceable policies, (ii) be issued by insurers of recognized
responsibility authorized to do business in the State of New York, (iii)
contain a provision whereby the insurer agrees not to cancel the insurance
without thirty (30) days' prior written notice to Landlord, and (iv)
contain a provision that no act or omission of Tenant shall result in
forfeiture of the insurance as against Landlord.
On or before the Commencement Date, Tenant shall deliver to Landlord
duplicate originals of the aforesaid policies or certificates evidencing the
aforesaid insurance coverage, and renewal policies or certificates shall be
delivered to Landlord at least thirty (30) days prior to the expiration date of
each policy with proof of payment of the premiums thereof.
Section 9.04 Landlord shall maintain fire and extended coverage
insurance covering the Building in an amount required by the mortgagee, and
shall also
maintain liability insurance.
Section 9.05. Landlord and Tenant shall each secure an appropriate
clause in, or an endorsement upon, each fire or extended coverage policy
obtained by it and covering the Building, the Demised Premises or the personal
property, fixtures and equipment located therein or thereon, pursuant to which
the respective insurance companies waive subrogation or permit the insured,
prior to any loss, to agree with a third party to waive any claim it might have
against said third party. The waiver of subrogation or permission for waiver of
any claim herein before referred to shall extend to the agents of each party and
its employees and, in the case of Tenant, shall also extend to all other persons
and entities occupying or using the Demised Premises in accordance with the
terms of this lease. If and to the extent that such waiver or permission can be
obtained only upon payment of an additional charge, then, the party benefitting
from the waiver or permission shall pay such charge upon demand, or shall be
deemed to have agreed that the party obtaining the insurance coverage in
question shall be free of any further obligations under the provisions hereof
relating to such waiver or permission.
Subject to the foregoing provisions of this Section 9.05, and insofar
as may be permitted by the terms of the insurance policies carried by it, (i)
each party hereby releases the other with respect to any claim (including a
claim for negligence) which it might otherwise have against the other party for
loss, damages or destruction with respect to its property by fire or other
casualty (including rental value or business interruption, as the case may be)
occurring during the term of this Lease covered by insurance and (ii) Tenant
releases other tenants but only to the extent that the policies of such other
tenants permit a similar waiver for the benefit of Tenant and such other tenant
gives such a waiver.
ARTICLE 10
Damage by Fire or Other Cause
Section 10.01. If the Demised Premises shall be damaged by fire or
other casualty, the damage shall be repaired by and at the expense of Landlord
and the minimum rent and additional rent pursuant to the provisions of Article
22 until such repairs shall be made, shall be apportioned according to the part
of the Demised Premises which is usable and accessable by Tenant. Landlord
shall have no responsibility to repair any damage to Tenant's work (as referred
to in Section 5.01), the same being the responsibility of Tenant. No penalty
shall accrue for delays which may arise by reason of adjustment of insurance by
Landlord, unavoidable delays (as hereinafter defined), or any other cause beyond
Landlord's reasonable control. Tenant shall give notice to Landlord promptly
upon learning thereof in case of fire or other damage to the Demised Premises.
If the Demised Premises are totally or substantially damaged or are rendered
wholly or substantially unusable by fire or any such other casualty, or if the
Building shall be so damaged that Landlord shall decide to demolish it or to
rebuild it (whether or not the Demised Premises shall have been damaged),
Landlord at its election may terminate this Lease by written notice to Tenant,
within ninety (90) days after such fire or
other casualty, and thereupon the term of this Lease shall expire by lapse of
time upon the third (3rd) day after such notice is given, and Tenant shall
vacate and surrender the Demised Premises to Landlord. However, if more than
twenty-five (25%) percent of the rentable square feet of the Demised Premises
shall be damaged during the last year of the term hereof, either Landlord or
Tenant, at its election, may terminate this Lease by written notice to the other
within sixty (60) days after such fire or other casualty, and thereupon the term
of this Lease shall expire upon the third (3/rd/) day after such notice is given
and Tenant shall vacate and surrender the Demised Premises to Landlord. Tenant
shall not be liable under this Lease for anything accruing after the date of
such expiration. Notwithstanding the foregoing, if Landlord does not
substantially complete such repairs within six (6) months from the date of such
casualty (as such period may be extended pursuant to Article 34), then Tenant
may elect to terminate this Lease by notice to Landlord within ten (10) days
following the expiration of such time period, and thereupon the term of this
Lease shall expire on the thirtieth (30/th/) day after such notice is given and
Tenant shall vacate and surrender the Demised Premises to Landlord, unless
within such thirty (30) day period, Landlord substantially completes such
repairs, in which event this Lease shall remain in full force and effect. Tenant
hereby waives the provisions of Section 227 of the Real Property Law, and the
provisions of this Article shall govern and control in lieu thereof.
Section 10.02. No damages of compensation shall be payable by
Landlord nor shall Tenant make any claim for inconvenience, loss of business or
annoyance arising from any repair or restoration of any portion of the Demised
Premises or of the Building. Landlord shall use its best efforts to commence
and effect such repairs promptly and in such manner as not to unreasonably
interfere with Tenant's occupancy.
ARTICLE 11
Assignment, Subletting, Mortgaging
Section 11.01. Tenant will not, by operation of law or otherwise,
assign, mortgage or encumber this Lease, or sublet or permit the Demised
Premises or any part thereof to be occupied or used by others for desk space,
mailing privileges or otherwise, without Landlord's prior written consent in
each instance, which consent shall not be unreasonably withheld or delayed
subject to the provisions of Section 11.07. If this Lease be assigned, or if
the Demised 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 any assignment, subletting, mortgage or
encumbrance shall not in any manner be construed to relieve Tenant from
obtaining Landlord's express consent to any other or further assignment,
subletting, mortgage or encumbrance. In no event shall any permitted sublessee
assign or encumber its sublease or further sublet all or any portion of its
sublet space,
or otherwise suffer or permit the sublet space or any part thereof to be used or
occupied by others, without Landlord's prior written consent in each instance,
which consent shall not be unreasonably withheld or delayed subject to the
provisions of Section 11.07.
Section 11.02. If Tenant shall at any time or times during the term
of this Lease desire to assign this Lease or sublet all or part of the Demised
Premises, Tenant shall give notice thereof to Landlord, which notice shall be
accompanied by (a) a conformed or photostatic copy of the proposed assignment or
sublease, the effective or commencement date of which shall be not less than
thirty (30) nor more than 180 days after the giving of such notice, (b) a
statement setting forth in reasonable detail the identity of the proposed
assignee or subtenant, the nature of its business and its proposed use of the
Demised Premises, and (c) current financial information with respect to the
proposed assignee or subtenant, including, without limitation, its most recent
financial report. Such notice shall be deemed an offer from Tenant to Landlord
whereby Landlord (or Landlord's designee) may, at its option, (i) sublease such
space (hereinafter called the "Leaseback Space") from Tenant upon the terms and
conditions hereinafter set forth (if the proposed transaction is a sublease of
all or part of the Demised Premises), (ii) terminate this Lease (if the proposed
transaction is an assignment or a sublease (whether by one sublease or a series
of related or unrelated subleases) of all or substantially all of the Demised
Premises, or (iii) terminate this Lease with respect to the Leaseback Space (if
the proposed transaction is a sublease of part of the Demised Premises). Said
options may be exercised by Landlord by notice to Tenant at any time within
twenty (20) days after such notice has been given by Tenant to Landlord; and
during such twenty (20) day period Tenant shall not assign this Lease nor
sublet such space to any person.
Section 11.03. If Landlord exercises its option to terminate this
Lease in the case where Tenant desires either to assign this Lease or sublet
(whether by one sublease or a series of related or unrelated subleases) all or
substantially all of the Demised Premises, then this Lease shall end and expire
on the date that such assignment or sublet was to be effective or commence, as
the case may be, and the minimum rent and additional rent shall be paid and
apportioned to such date.
Section 11.04. If Landlord exercises its option to terminate this
Lease in part in any case there Tenant desires to sublet part of the Demised
Premises, then (a) this Lease shall end and expire with respect to such part of
the Demised Premises on the date that the proposed sublease was to commence; and
(b) from and after such date the minimum rent and additional rent shall be
adjusted, based upon the proportion that the rentable area of the Demised
Premises remaining bears to the total rentable area of the Demised Premises; and
(c) Landlord shall pay the costs incurred by Landlord in physically separating
such part of the Demised Premises from the balance of the Demised Premises and
in complying with any laws and requirements of any public authorities relating
to such separation.
Section 11.05. If Landlord exercises its option to sublet the
Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall
be at the lower of (i) the rental rate per rentable square foot of minimum rent
and additional rent then payable pursuant
to this Lease or (iii) the rentals set forth in the proposed sublease, and shall
be for the same term as that of the proposed subletting, and such sublease:
(a) shall be expressly subject to all of the covenants,
agreements, terms, provisions and conditions of this Lease except such as
are irrelevant or inapplicable, and except as otherwise expressly set forth
to the contrary in this Section;
(b) Such sublease shall be upon the same terms and conditions as
those contained in the proposed sublease, except such as are irrelevant or
inapplicable and except as otherwise expressly set forth to the contrary in
this Section;
(c) Such sublease shall give the sublesee the unqualified and
unrestricted right, without Tenant's permission, to assign such sublease or
any interest therein and/or to sublet the Leaseback Space and to make any
and all changes, alterations, and improvements in the space covered by such
sublease at no cost or liability to Tenant and if the proposed sublease
will result in all or substantially all of the Demised Premises being
sublet, grant Landlord or its designee the option to extend the term of
such sublease for the balance of the term of this Lease less one (1) day;
(d) Such sublease shall provide that any assignee or further
subtenant, of Landlord or its designee, may, at the election of Landlord,
be permitted to make alterations, decorations and installations in the
Leaseback Space or any part thereof and shall also provide in substance
that any such alterations, decorations and installations in the Leaseback
Space therein made by any assignee or subtenant of Landlord or its designee
may be removed, in whole or in part, by such assignee or subtenant, at its
option, prior to or upon the expiration or other termination of such
sublease provided that such assignee or subtenant, at its expense, shall
repair any damage and injury to that portion of the Leaseback Space so
sublet caused by such removal and restore to the condition such space was
in at the beginning of the sublease term for other than customary office
installations; and
(e) Such sublease shall also provide that (i) the parties to such
sublease expressly negate any intention that any estate created under such
sublease be merged with any other estate held by either of said parties,
(ii) any assignment or subletting by Landlord or its designee (as the
subtenant) may be for any purpose or purposes that Landlord, in Landlord's
reasonable discretion, shall deem suitable or appropriate, (iii) Landlord,
at Tenant's expense, may make such alterations as may be required or deemed
necessary by Landlord to physically separate the Leaseback Space from the
balance of the Demised Premises and to comply with any laws and
requirements of public authorities
relating to such separation, and (iv) that at the expiration of the term of
such sublease, Tenant will accept the space covered by such sublease in its
then existing condition, subject to the obligations of the sublessee to
make such repairs thereto as may be necessary to restore the premises
demised by such sublease to a comparable condition as such space was in at
the beginning of the sublease term.
Section 11.06. (a) If Landlord exercises its option to sublet the
Leaseback Space, Landlord shall indemnify and save Tenant harmless from all
obligations under this Lease as to the Leaseback Space during the period of
time it is so sublet to Landlord.
(b) Performance by Landlord, or its designee, under a sublease of
the Leaseback Space shall be deemed performance by Tenant of any similar
obligation under this Lease and any default under any such sublease shall
not give rise to a default under a similar obligation contained in this
Lease, nor shall Tenant be liable for any default under this Lease or
deemed to be in default hereunder if such default is occasioned by or
arises from any act or omission of any occupant holding under or pursuant
to any such sublease.
(c) Tenant shall have no obligation, at the expiration or earlier
termination of the term of this Lease, to remove any alteration,
installation or improvement made in the Leaseback Space by Landlord or by
any occupant thereof.
Section 11.07. In the event Landlord does not exercise an option
provided to it pursuant to Section 11.02 and provided that Tenant is not in
default in any of Tenant's obligations under this Lease, Landlord's consent
(which must be in writing and in form reasonably satisfactory to Landlord) to
the proposed assignment or sublease shall not be unreasonably withheld or
delayed, provided and upon condition that:
(a) Tenant shall have complied with the provisions of Section
11.02 and Landlord shall not have exercised any of its options under said
Section 11.02 within the time permitted therefor;
(b) In Landlord's judgment, the proposed assignee or subtenant is
engaged in a business and the Demised Premises, or the relevant part
thereof, will be used in a manner which (i) is limited to the use expressly
permitted under Sections 4.01 and 4.02 of this Lease, and (ii) is in
keeping with the then standards of the Building;
(c) The proposed assignee or subtenant is a reputable person of
good character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable
proof
thereof;
(d) Neither (i) the proposed assignee or sublessee nor (ii) any
person which, directly or indirectly, controls, is controlled by or is
under common control with, the proposed assignee or sublessee, is then an
occupant of any part of the Building other than the Demised Premises;
(e) The proposed assignee or sublessee is not a person with whom
Landlord is currently negotiating to lease space in the Building;
(f) The proposed sublease shall be in form reasonably
satisfactory to Landlord and shall comply with the provisions of this
Article;
(g) At any one time there shall not be more than four (4)
unrelated subtenants on any full floor and not more than two (2) unrelated
subtenants on any partial floor (including Landlord or its designee) in the
Demised Premises;
(h) Tenant shall reimburse Landlord on demand for any reasonable
costs that may be incurred by Landlord in connection with said assignment
or sublease, including, without limitation, the reasonable costs incurred
in making investigations as to the acceptability of the proposed assignee
or subtenant, and reasonable legal costs incurred in connection with the
granting of any requested consent;
(i) Tenant shall not have (i) advertised in any way the
availability of the Demised Premises without prior notice to Landlord, or
(ii) listed the Demised Premises at a rental rate less than the minimum
rent or additional rent at which Landlord is then offering to lease other
space in the Building; and
(j) The proposed subtenant or assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity and shall be
subject to the service of process in and the jurisdiction of the courts of
New York State.
Except for any subletting by Tenant to Landlord or its designee
pursuant to the provisions of this Article, each subletting pursuant to this
Article shall be subject to all of the covenants, agreements, terms, provisions
and conditions contained in this Lease. Notwithstanding any such subletting to
Landlord or any such subletting to any other subtenant and/or acceptance of rent
or additional rent by Landlord from any subtenant, Tenant shall and will remain
fully liable for the payment for the minimum rent and additional rent due and to
become due hereunder and for the performance of all the covenants, agreements,
terms, provisions and conditions contained in this Lease on the part of Tenant
to be performed and
all acts and omissions of any licensee or subtenant or anyone claiming under or
through any subtenant which shall be in violation of any of the obligations of
this Lease, and any such violation shall be deemed to be a violation by Tenant.
Tenant further agrees that notwithstanding any such subletting, no other person
claiming through or under Tenant (except as provided in Section 11.05) shall or
will be made except upon compliance with and subject to the provisions of this
Article. If Landlord shall decline to give its consent to any proposed
assignment or sublease (provided landlord has not unreasonably withheld or
delayed its consent), or if Landlord shall exercise its option under Section
11.02, Tenant shall indemnify, defend and hold harmless Landlord against and
from any and all loss, liability, damages, costs and expenses (including
reasonable counsel fees) resulting from any claims that may be made against
Landlord by the proposed assignee or sublessee or by any brokers or other
persons claiming a commission or similar compensation in connection with the
proposed assignment or sublease. Notwithstanding the foregoing, Tenant, without
Landlord's consent, may allow a portion of the Demised Premises to be occupied
by a majority owned subsidiary or an affiliate or related entity controlling,
controlled by or under common control with Tenant, provided such occupancy shall
not create any landlord and tenant relationship or privity as between Landlord
and any such occupant and Tenant shall give Landlord prior reasonable notice of
such proposed occupancy. Such occupancies shall not be counted towards the total
allowed under Section 11.07(g), and Landlord has no rights of termination or
recapture with respect to such occupancies.
Section 11.08. In the event that (a) Landlord fails to exercise its
options under Section 11.02 and consents to a proposed assignment or sublease,
and (b) Tenant fails to execute and deliver the assignment or sublease to which
Landlord consented within ninety (90) days after the giving of such consent,
then, Tenant shall again comply with all of the provisions and conditions of
Section 11.02 before assigning this Lease or subletting all or part of the
Demised Premises.
Section 11.09. With respect to each and every sublease or subletting
authorized by Landlord under the provisions of this Lease, it is further agreed:
(a) No subletting shall be for a term ending later than one day
prior to the expiration date of this Lease;
(b) No sublease shall be valid, and no subtenant shall take
possession of the Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord;
(c) Each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which this Lease is or
shall be subordinate, and that in the event of termination, re-entry or
dispossess by Landlord under this Lease Landlord may, at its option, take
over all of the right, title and interest of Tenant, as sublessor, under
such sublease, and such subtenant shall, at Landlord's option, attorn to
Landlord pursuant to the then
executory provisions of such sublease, except that Landlord shall not (i)
be liable for any previous act or omission of Tenant under such sublease,
(ii) be subject to any offset, not expressly provided in such sublease,
which thereto accrued to such subtenant against Tenant, or (iii) be bound
by any previous modification of such sublease or by any previous prepayment
of more than one month's rent.
Section 11.10. If Landlord gives its consent to any assignment of
this Lease or to any sublease, Tenant shall, in consideration therefor, pay to
Landlord, as additional rent:
(a) in the case of an assignment of this Lease or an assignment
by any sublease, an amount equal to one-half of all sums and other
considerations paid to Tenant from the assignee for such assignment or paid
to Tenant by any sublessee or other person claiming through or under Tenant
for such assignment (including, but not limited to sums paid for the sale
of Tenant's or sublessee's fixtures, leasehold improvements, less, in case
of a sale thereof, the then net unamortized or undepreciated cost thereof
determined on the basis of Tenant's or sublessee's federal income tax
returns). The sums payable to Landlord under this Section 11.10(a) shall
be paid to Landlord as and when paid by such assignee to Tenant; and
(b) in the case of a sublease, an amount equal to one-half of the
rents and charges and other consideration payable under the sublease to
Tenant by the subtenant or paid to Tenant by any such sublessee or other
person claiming through or under Tenant in connection with such subletting
which is in excess of all rent accruing during the term of the sublease in
respect of the subleased space (at the rate per square foot payable by
Tenant hereunder or such sublessee) pursuant to the terms of this Lease
(including, but not limited to, sums paid for the sale or rental of
Tenant's fixtures, leasehold improvements, less, in the case of the sale
thereof, the then net unamortized or undepreciated cost thereof determined
on the basis of Tenant's or sublessee's federal income tax returns). The
sums payable to Landlord under this Section 11.10(b) shall be paid to
Landlord as and when paid by such subtenant to Tenant.
(c) For the purposes of computing the sums payable by Tenant to
Landlord under subparagraphs (a) and (b) hereof, there shall be first
excluded from the consideration payable to Tenant by any assignee or
sublessee any transfer taxes, rent concession, reasonable attorneys' fees,
reasonable brokerage commissions, advertising costs and fix-up costs paid
by Tenant with respect to such assignment or subletting, but only to the
extent any such sums are allocable to the period of this Lease (in the case
of any assignment), or the term of any sublease.
Section 11.11. If Tenant or any subtenant is a corporation,
partnership, limited
liability company or other entity, the provisions of Section 11.01 shall apply
to a transfer (by one or more transfers) of a majority of the stock,
partnership, membership or other ownership interests or transfer of all or
substantially all of the assets of Tenant or such subtenant, as the case may be,
as if such transfer of a majority of the stock, partnership, membership or other
ownership interests or all or substantially all of the assets of Tenant or such
subtenant were an assignment of this Lease; but said provisions and the
provisions of Sections 11.02 and 11.10 shall not apply to transactions with a
corporation, partnership, limited liability company or other entity into or with
which Tenant or such subtenant is merged or consolidated, or to which all or
substantially all of the assets of Tenant are transferred, or to any
corporation, partnership, limited liability company or other entity which
controls or is controlled by Tenant or such subtenant or is under common control
with Tenant or such subtenant, provided that in any of such events (i) the
successor to Tenant or such subtenant has a net worth computed in accordance
with generally accepted accounting principles at least equal to the greater of
(1) the net worth of Tenant or such subtenant immediately prior to such merger,
consolidation or transfer, or (2) the net worth of Tenant herein named on the
date of this Lease or the net worth of such subtenant on the date of such
sublease, and (ii) proof satisfactory to Landlord of such net worth shall have
been delivered to Landlord at least ten (10) days prior to the effective date of
any such transaction. Notwithstanding the foregoing, without Landlord's consent,
subject to the provisions of Section 11.11 Tenant may assign this Lease, or
subject to the provision of the last paragraph of Section 11.07 and Section
11.09 Tenant may sublet a part of the Demised Premises, to a controlled
subsidiary or controlled affiliate of Tenant, provided a duly executed
counterpart of such assignment together with the assumption by the assignee or
duly executed counterpart of such sublease, as the case may be, is delivered to
Landlord upon the earlier of (a) at least ten (10) days prior to its effective
date or (b) within three (3) business days of the transaction to which such
asisgnment or sublease is not subject to confidentiality requirements but in no
event more than ten (10) days after the effective date. Such subleases shall not
be counted towards the total allowed under Section 11.07(g) and Landlord has no
rights of termination or recapture with respect to the subleases or assignments
permitted in this Section 11.11.
Section 11.12. Any assignment or transfer, whether made with
Landlord's consent pursuant to Section 11.06 or without Landlord's consent
pursuant to Section 11.10, shall be made only if, and shall not be effective
until, the assignee shall execute, acknowledge and deliver to Landlord an
agreement in form and substance reasonably satisfactory to Landlord whereby the
assignee shall assume the obligations of this Lease on the part of Tenant to be
performed or observed and whereby the assignee shall agree that the provisions
in this Article 11 shall, notwithstanding such assignment or transfer, continue
to be binding upon it in respect of all future assignments and transfers. The
original named Tenant covenants that, notwithstanding any assignment or
transfer, whether or not in violation of the provisions of this Lease, and
notwithstanding the acceptance of minimum rent and/or additional rent by
Landlord from an assignee, transferee, or any other party, the original named
Tenant shall remain fully liable for the payment of the minimum rent and
additional rent and for the other obligations of this Lease on the part of
Tenant to be performed or observed.
Section 11.13. The joint and several liability of Tenant and any
immediate or remote successor in interest of Tenant and the due performance of
the obligations of this Lease on Tenant's part to be performed or observed shall
not be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this Lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this Lease.
Section 11.14. The listing of any name ot her than that of Tenant,
whether on the doors of the Demised Premises, or the Building directory, if any,
or otherwise, shall not operate to vest any right or interest in this Lease or
in the Demised Premises, nor shall it be deemed to be the consent of Landlord to
any assignment or transfer of this Lease, to any sublease of the Demised
Premises, or to the use or occupancy thereof by others. Landlord at its cost,
shall provide Tenant up to thirty (30) listings in the main lobby for Tenant and
permitted occupants and subtenants.
ARTICLE 12
Liability and Indemnity by Landlord and Tenant
Section 12.01. Each party shall indemnify the other against and save
the other harmless from any liability to and claim by or on behalf of any
person, firm, governmental authority, corporation or entity for personal injury,
death or property damage, arising:
(a) (i) with respect to Tenant, from its use of the Demised
Premises, or from any work whatsoever done or omitted to be done by Tenant,
its employees, agents, contractors, customers, invitees or visitors, or
from any accident thereat, and (ii) with respect to Landlord, from any work
whatsoever done or omitted to be done in the Building by Landlord, its
agents, contractors or employees; and
(b) from any breach or default by either party of and under any
of the terms, covenants and conditions of this Lease on such party's part
to be performed.
Each party also shall indemnify the other against and save the other
harmless from all costs, reasonable counsel fees, expenses and penalties
incurred by the other in connection with any such liability or claim other than
such liability or claim incurred as a result of such party's negligence or
willful misconduct.
If any action or proceeding shall be brought against either party in
connection with any such liability or claim, the other party (the "Indemnitor")
, on notice from the party against whom such action or proceeding was commenced
(the "Indemitee") , shall defend such action or proceeding, at the Indemnitor's
expense, by counsel reasonably satisfactory to the Indemnitee , or by the
attorney for the Indemnitor's insurance carrier whose insurance policy
covers the liability or claim.
Section 12.02. Landlord shall not be liable for any damage to
property of Tenant or of others entrusted to employees of the Building, nor for
the loss of or damage to any property of Tenant by theft or otherwise, except if
due to the negligence or willful act of Landlord, its agents, contractors or
employees. Landlord and its agents shall not be liable for any injury or damage
to persons or property resulting from fire, explosion, falling plaster, steam,
gas, electricity, water, rain or snow or leaks from any part of the Building or
from the pipes, appliances or plumbing works or from the roof, street or sub-
surface or from any other place or by dampness or by any other cause of
whatsoever nature, except if due to the negligence or willful act of Landlord,
its agents, contractors or employees; nor shall Landlord be liable for any such
damage caused by other tenants or persons in the Building or caused by
operations in construction of any public or quasi-public work. If, at any time
any windows of the Demised Premises are permanently closed, darkened or bricked
up by reason of the requirements of law or temporarily closed or darkened by
reason of repairs, alterations or maintenance by Landlord, Landlord shall not be
liable for any damage Tenant may sustain thereby and Tenant shall not be
entitled to any compensation therefor nor abatement of rent nor shall the same
release Tenant from its obligations hereunder nor constitute an eviction.
Tenant shall give immediate notice to Landlord upon its discovery of
accidents in the Demised Premises.
Section 12.03. (a) If in this Lease it is provided that Landlord's
consent or approval as to any matter will not be unreasonably withheld, and
it is established by a court or body having final jurisdiction thereover
that Landlord has been unreasonable, the only effect of such finding shall
be that Landlord shall be deemed to have given its consent or approval; but
Landlord shall not be liable to Tenant in any respect for money damages by
reason of withholding its consent.
(b) If there is a dispute between Landlord and Tenant under Section
11.07 relating to the reasonableness of the withholding of a consent or
approval by Landlord, Tenant may, at its option, as its sole and exclusive
remedy, submit such dispute to arbitration in the City of New York under
the Expedited Procedures provisions of the Commercial Arbitration Rules of
the American Arbitration Association or any successor (the "AAA")
(presently Rules E-1 through E-10 and, to the extent applicable, Section R-
19); provided, however, that with respect to any such arbitration, (i) the
list of arbitrators referred to in Rule E-5 shall be returned within five
(5) days from the date of mailing; (ii) the parties shall notify the AAA by
telephone, within four (4) days of any objections to the arbitrator
appointed and will have no right to object if the arbitrator so appointed
was on the list submitted by the AAA and was not objected to in accordance
with Rule E-5; (iii) the Notice of hearing referred to in Rule E-8 shall be
four (4) days in advance of the hearing; (iv) the hearing shall be held
within seven (7) days after the appointment of the arbitrator; (v) the
arbitrator shall have no right to award damages; and (vi) the decision and
award of the arbitrator shall be final and conclusive on the parties. The
sole issue to be submitted to the arbitrator, which shall be included as
part of his oath, shall be the reasonableness of Landlord's determination
to withhold consent or approval under the provisions of this Lease. The
arbitrators conducting any arbitration shall be bound by the provisions of
this Lease and shall not have the right or power to consider, determine or
resolve any other issue or dispute between the parties, or to add to,
subtract from, or otherwise modify such provisions. Landlord and Tenant
agree to sign all documents and to do all other things necessary to submit
any such matter to arbitration upon request of the other and further agree
to, and hereby do, waive any and all rights they or either of them may at
any time have to revoke their agreement hereunder to submit to arbitration
and to abide by the decision rendered thereunder. Each of the arbitrators
shall have at least ten (10) years' experience in the business of managing
real estate or acting as a real estate broker with first-class office
buildings located in Manhattan. Each party hereunder initially shall pay
its own costs, fees and expenses in connection with any arbitration or
other action or proceeding brought under this Article 12, and the expenses
and fees of the arbitrators selected initially shall be shared equally by
Landlord and tenant, provided, however, that the losing party shall
reimburse the prevailing party for its reasonable expenses paid to
unrelated third parties in connection with the foregoing. Notwithstanding
any contrary provisions hereof, if Tenant shall submit such dispute to
arbitration, then Landlord and Tenant agree that (i) the arbitrators may
not award or recommend any damages to be paid by either party, and (ii) in
no event shall either party be liable for, nor be entitled to recover, any
damages.
ARTICLE 13
Moving of Heavy Equipment
Tenant shall not move any safe, heavy equipment or bulky matter in or
out of the Building without Landlord's written consent, which shall not be
unreasonably withheld. If the movement of such items requires special handling,
Tenant agrees to employ only persons holding a Master Rigger's License to do
said work and all such work shall be done in full compliance with the
Administrative Code of the City of New York and other municipal requirements.
All such movements shall be made during hours which will least interfere with
the normal operations of the Building, and all damage caused by such movement
shall be promptly repaired by Tenant at Tenant's expense.
ARTICLE 14
Condemnation
Section 14.01. In the event that the whole or more than ten (10%)
percent of the Demised Premises shall be condemned or taken in any manner for
any public or quasi-public use, this Lease and the term and estate hereby
granted shall forthwith cease and terminate as of the date of vesting of title.
In the event that ten (10%) percent or less of the Demised Premises shall be so
condemned or taken, then, effective as of the date of vesting of title, the
minimum rent and additional rent hereunder for such part shall be equitably
abated and this Lease shall continue as to such part not so taken. In the event
that only a part of the Building shall be so condemned or taken, then (a) if
substantial structural alteration or reconstruction of the Building shall, in
the opinion of Landlord, be necessary or appropriate as a result of such
condemnation or taking (whether or not the Demised Premises be affected),
Landlord may, at its option, terminate this Lease and the term and estate hereby
granted as of the date of such vesting of title by notifying Tenant in writing
of such termination within sixty (60) days following the date on which Landlord
shall have received notice of the vesting of title, or (b) if Landlord does not
elect to terminate this Lease, as aforesaid, this Lease shall be and remain
unaffected by such condemnation or taking, except that the minimum rent and
additional rent shall be abated to the extent, if any, hereinbefore provided.
In the event that only a part of the Demised Premises shall be so condemned or
taken and this Lease and the term and estate hereby granted are not terminated
as hereinbefore provided, Landlord, out of the portion of the award allocated
for such purpose , will restore with reasonable diligence the remaining
structural portions of the Demised Premises as nearly as practicable to the same
condition as it was in prior to such condemnation or taking.
Section 14.02. In the event of termination in any of the cases
hereinabove provided, this Lease and the term and estate hereby granted shall
expire as of the date of such termination with the same effect as if that were
the Expiration Date and the rent hereunder shall be apportioned as of such date.
Section 14.03. In the event of any condemnation or taking hereinabove
mentioned of all or a part of the Building, Landlord shall be entitled to
receive the entire award in the condemnation proceeding, including any award
made for the value of the estate vested by this Lease in Tenant, and Tenant
hereby expressly assigns to Landlord any and all right, title and interest of
Tenant now or hereafter arising in or to any such award or any part thereof, and
Tenant shall be entitled to receive no part of such award. Notwithstanding the
foregoing, Tenant may make a separate claim for Tenant's moveable trade fixtures
and moving expenses, provided the same shall not affect or reduce Landlord's
award.
ARTICLE 15
Entry, Right to Change Public Portions of the Building
Section 15.01. Tenant shall permit Landlord to erect, use and
maintain pipes and conduits in and through the walls, within the ceiling or
below the floors of the Demised Premises. Landlord, or its agents or designee
shall have the right, on prior written notice
(except no notice in an emergency), to enter the Demised Premises for the
purpose of making such repairs or alterations as Landlord shall desire, shall be
required or shall have the right to make under the provisions of this Lease; and
shall also have the right to enter the Demised Premises for the purpose of
inspecting them or exhibiting them to prospective purchasers or lessees of the
entire Building or to prospective mortgagees or to prospective assignees of any
such mortgagees. Landlord shall, during the progress of any work in the Demised
Premises, be allowed to take all material into and upon the Demised Premises
that may be required for the repairs or alterations above mentioned without the
same constituting an eviction of Tenant in whole or in part and the rent
reserved shall in no wise abate, except as otherwise provided in this Lease,
while said repairs or alterations are being made. However, Landlord shall use
reasonable efforts to make such repairs or alterations in a manner to minimize
its interference with the normal conduct of Tenant's business, provided Landlord
shall not be required to employ overtime or premium labor.
Section 15.02. During the twelve (12) months prior to the expiration
of the term of this Lease, Landlord may exhibit the Demised Premises to
prospective tenants.
Section 15.03. Landlord shall have the right at any time without
thereby creating an actual or constructive eviction or incurring any liability
to Tenant therefor, to change the arrangement or location of such of the
following as are not contained within the Demised Premises: entrances,
passageways, doors and doorways, corridors, elevators, stairs, toilets, and
other like public service portions of the Building; and to put so-called "solar
film" or other energy-saving installations on the inside and outside of the
windows. All parts (except surfaces facing the interior of the Demised Premises)
of all walls, windows and doors bounding the Demised Premises (including
exterior Building walls, exterior core corridor walls, exterior doors and
entrances), all space in or adjacent to the Demised Premises used for shafts,
stacks, stairways, chutes, pipes, conduits, ducts, fan rooms, heating, air
cooling, plumbing and other mechanical facilities, service closets and other
Building facilities are not part of the Demised Premises and Landlord shall have
the use thereof, as well as access thereto through the Demised Premises for the
purposes of operation, maintenance, alteration and repair. However, Landlord
shall use reasonable efforts to make such repairs or alterations in a manner to
minimize its interference with the normal conduct of Tenant's business, provided
Landlord shall not be required to employ overtime or premium labor.
Section 15.04. Landlord shall have the right at any time to name the
Building as it desires and to change any and all such names at any time
thereafter.
ARTICLE 16
Conditional Limitations, Etc.
Section 16.01. If at any time during the term of this Lease:
(a) Tenant or any guarantor of this Lease shall file a petition
in bankruptcy or insolvency or for reorganization or arrangement or for the
appointment of a receiver of all or a portion of Tenant's or such
guarantor's property, or
(b) Any petition of the kind referred to in subdivision (a) of
this Section shall be filed against Tenant or such guarantor and such
petition shall not be vacated, discharged or withdrawn within ninety (90)
days, or
(c) Tenant or such guarantor shall be adjudicated a bankrupt by
any court, or
(d) Tenant or such guarantor shall make an assignment for the
benefit of creditors, or
(e) a permanent receiver shall be appointed for the property of
Tenant or such guarantor by order of a court of competent jurisdiction by
reason of the insolvency of Tenant or such guarantor (except where such
receiver shall be appointed in an involuntary proceeding, if he shall not
be withdrawn within ninety (90) days after the date of his appointment),
then Landlord, at Landlord's option, may terminate this Lease on five (5) days'
notice to Tenant, and upon such termination, Tenant shall quit and surrender the
Demised Premises to Landlord.
Section 16.02 (a) If Tenant assumes this Lease and proposes to
assign the same pursuant to the provisions of the Bankruptcy Code, 11
U.S.C. (S) 101 et seq. (the "Bankruptcy Code") to any person or entity who
shall have made a bona fide offer to accept an assignment of this Lease on
terms acceptable to Tenant, then notice of such proposed assignment,
setting forth (i) the name and address of such person, (ii) all of the
terms and conditions of such offer, and (iii) the adequate assurance to be
provided Landlord to assure such person's future performance under the
Lease, including, without limitation, the assurance referred to in section
365(b)(1) of the Bankruptcy Code, shall be given to Landlord by Tenant not
later than twenty (20) days after receipt by Tenant but in no event later
than ten (10) days prior to the date that Tenant shall make application to
a court of competent jurisdiction for authority and approval to enter into
such assignment and assumption, and Landlord shall thereupon have the prior
right and option, to be exercised by notice to Tenant given at any time
prior to the effective date of such proposed assignment, to accept an
assignment of this Lease upon the same terms and conditions and for the
same consideration, if any, as the bona fide offer made by such person,
less any brokerage commissions which may be payable out of the
consideration to be paid by such person for the assignment of this Lease.
(b) If this Lease is assigned to any person or entity pursuant
to the provisions of the Bankruptcy Code, any and all monies or other
considerations payable or otherwise delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant
or of the estate of Tenant within the meaning of the Bankruptcy Code. Any
and all monies or other considerations constituting Landlord's Property
under the preceding sentence not paid or delivered to Landlord shall be
held in trust for the benefit of Landlord and shall be promptly paid to
Landlord.
(c) Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code, shall be deemed without
further act or deed to have assumed all of the obligations arising under
this Lease on and after the date of such assignment. Any such assignee
shall upon demand execute and deliver to Landlord an instrument confirming
such assumption.
(d) Nothing contained in this Section shall, in any way,
constitute a waiver of the provisions of this Lease relating to assignment.
Tenant shall not, by virtue of this Section, have any further rights
relating to assignment other than those granted in the Bankruptcy Code.
(e) Notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of Landlord under this Lease,
whether or not expressly denominated as rent, shall constitute rent for the
purposes of Section 502(b)(6) of the Bankruptcy Code.
(f) The term "Tenant" as used in this Section includes any
trustee, debtor in possession, receiver, custodian or other similar
officer.
Section 16.03. If this Lease shall terminate pursuant to the
provisions of Section 16.01:
(a) Landlord shall be entitled to recover from Tenant arrears in
minimum rent and additional rent and, in addition thereto as liquidated
damages, an amount equal to the difference between the minimum rent and
additional rent for the unexpired portion of the term of this Lease which
had been in force immediately prior to the termination effected under
Section 16.01 of this Article and the fair and the reasonable rental value
of the Demised Premises, on the date of termination, for the same period,
both discounted at the rate of eight (8%) percent per annum to the date of
termination; or
(b) Landlord shall be entitled to recover from Tenant arrears in
minimum rent and additional rent and, in addition thereto as liquidated
damages, an amount equal to the maximum allowed by 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 or less
than the amount referred to in subdivision (a) of this Section.
Section 16.04. (a) If Tenant shall fail to make any payment of any
minimum rent or additional rent when the same becomes due and payable, or
if the Demised Premises become deserted, or if Tenant shall fail to cancel
or discharge any mechanic's lien or other lien within the time period as
provided in Section 17.02, and if any of the foregoing defaults shall
continue for a period of seven (7) days after notice thereof by Landlord,
or
(b) If Tenant shall be in default in the performance of any of
the other terms, covenants and conditions of this Lease and such default
shall not have been remedied within thirty (30) days after notice by
Landlord to Tenant specifying such default and requiring it to be remedied;
or where such default reasonably cannot be remedied within such period of
thirty (30) days, if Tenant shall not have commenced the remedying thereof
within such period of time and shall not be proceeding with due diligence
to remedy it,
then Landlord, at Landlord's election, may terminate this Lease on five (5)
days' notice to Tenant, and upon such termination Tenant shall quit and
surrender the Demised Premises to Landlord.
Section 16.05. If this Lease shall terminate as provided in this
Article or if Tenant shall be in default in the payment of minimum rent or
additional rent when the same become due and payable, and such default shall
continue for a period of seven (7) days after notice by Landlord to Tenant,
(a) Landlord may re-enter and resume possession of the Demised
Premises and remove all persons and property therefrom either by summary
dispossess proceedings or by a suitable action or proceeding, at law or in
equity, or by force or otherwise, without being liable for any damages
therefor, and
(b) Landlord may re-let the whole or any part of the Demised
Premises for a period equal to, greater or less than the remainder of the
then term of this Lease, at such rental and upon such terms and conditions
as Landlord shall deem reasonable to any tenant it may deem suitable and
for any use and purpose it may deem appropriate. Landlord shall not be
liable in any respect for failure to re-let the Demised Premises or, in the
event of such re-letting, for failure to collect the rent thereunder and
any sums received by Landlord on a re-letting in excess of the rent
reserved in this Lease shall belong to Landlord.
Section 16.06. If this Lease shall terminate as provided in this
Article or by summary proceedings (except as to any termination under Section
16.01), Landlord shall be entitled to recover from Tenant as damages, in
addition to arrears in minimum rent and additional rent,
(a) an amount equal to (i) all expenses incurred by Landlord in
recovering possession of the Demised Premises and in connection with the
re-letting of the Demised Premises, including, without limitation, the cost
of repairing, renovating or remodeling the Demised Premises, (ii) the cost
of performing any work required to be done by Tenant under this Lease,
(iii) the cost of placing the Demised Premises in the same condition as
that in which Tenant is required to surrender them to Landlord under this
Lease, and (iv) all brokers' commissions and legal fees incurred by
Landlord in re-letting the Demised Premises, which amounts set forth in
this subdivision (a) shall be due and payable by Tenant to Landlord at such
time or times as they shall have been incurred; and
(b) an amount equal to the deficiency between the minimum rent
and additional rent which would have become due and payable had this Lease
not terminated and the net amount, if any, of rent collected by Landlord on
re-letting the Demised Premises. The amounts specified in this subdivision
shall be due and payable by Tenant on the several days on which such
minimum rent and additional rent would have become due and payable had this
Lease not terminated. Tenant consents that Landlord shall be entitled to
institute separate suits or actions or proceedings for the recovery of such
amount or amounts, and Tenant hereby waives the right to enforce or assert
the rule against splitting a cause of action as a defense thereto.
Landlord, at its election, which shall be exercised by the
service of a notice on Tenant, at any time after such termination of this Lease,
may collect from Tenant and Tenant shall pay, in lieu of the sums becoming due,
under the provisions of subdivision (b) of this Section, an amount equal to the
difference between the minimum rent and additional rent which would have become
due and payable had this Lease not terminated (from the date of the service of
such notice to the end of the term of this Lease which had been in force
immediately prior to any termination effected under this Article) and the then
fair and reasonable rental value of the Demised Premises for the same period,
both discounted to the date of the service of such notice at the rate of eight
(8%) percent per annum.
Section 16.07. Tenant, for itself and for all persons claiming
through or under it, hereby waives any and all rights which are or may be
conferred upon Tenant by any present or future law to redeem the Demised
Premises after a warrant to dispossess shall have been issued or after judgment
in an action of ejectment shall have been made and entered.
Section 16.08. The words "re-enter" and "re-entry", as used in this
Article, are not restricted to their technical legal meanings.
Section 16.09. Landlord shall not be required to give any notice of
its intention to re-enter, except as otherwise provided in this Lease.
Section 16.10. In any action or proceeding brought by Landlord
against Tenant, predicated on a default in the payment of minimum rent or
additional rent, Tenant shall not have the right to and shall not interpose any
set-off or counterclaim of any kind whatsoever, other than a claim which would
be legally barred for failure to raise as a counterclaim in such action or
proceeding. If Tenant has any claim, Tenant shall be entitled only to bring an
independent action therefor; and if such independent action is brought by
Tenant, Tenant shall not be entitled to and shall not consolidate it with any
pending action or proceeding brought by Landlord against Tenant for a default in
the payment of minimum rent or additional rent.
ARTICLE 17
Mechanic's Liens
Section 17.01. If, subject to and notwithstanding Landlord's consent
as required under this Lease, Tenant shall cause any changes, alterations,
additions, improvements, installations or repairs to be made to or at the
Demised Premises or shall cause any labor to be performed or material to be
furnished in connection therewith, neither Landlord nor the Demised Premises,
under any circumstances, shall be liable (except for Landlord's payment
obligations pursuant to Article 38) for the payment of any expense incurred or
for the value of any work done or material furnished, and all such changes,
alterations, additions, improvements, installations and repairs and labor and
material shall be made, furnished and performed upon Tenant's credit alone and
at Tenant's expense, and Tenant shall be solely and wholly responsible to
contractors, laborers, and materialmen furnishing and performing such labor and
material. Nothing contained in this Lease shall be deemed or construed in any
way as constituting the consent or request of Landlord, express or implied, to
any contractor, laborer or materialman to furnish or to perform any such labor
or material.
Section 17.02. If, because of any act or omission (or alleged act or
omission) of Tenant any mechanic's or other lien, charge or order for the
payment of money shall be filed against the Demised Premises or the Building or
Landlord's estate as tenant under any ground or underlying lease (whether or not
such lien, charge or order is valid or enforceable as such), for work claimed to
have been for, or materials furnished to, Tenant, Tenant, at Tenant's expense,
shall cause it to be cancelled or discharged of record by bonding or otherwise
within twenty (20) days after such filing, and Tenant shall indemnify Landlord
against and save Landlord harmless from and shall pay all reasonable costs,
expenses, losses, fines and penalties, including, without limitation, reasonable
attorneys' fees, resulting therefrom.
ARTICLE 18
Landlord's and Tenant's Right to Perform Obligations
Section 18.01. If Tenant shall default in the performance of any of
the terms or covenants and conditions of this Lease, Landlord, without being
under any obligation to do so and without hereby waiving such default, may
remedy such default for the account and at the expense of Tenant. Any payment
made or expense incurred by Landlord for such purpose (including, but not
limited to, reasonable attorneys' fees) with interest at the maximum legal rate,
shall be deemed to be additional rent hereunder and shall be paid by Tenant to
Landlord on demand, or at Landlord's election, added to any subsequent
installment or installments of minimum rent.
Section 18.02. If Landlord shall fail to perform any repair or
maintenance obligation required to be performed by Landlord in the Demised
Premises pursuant to the provisions of this Lease, then Tenant shall give
Landlord written notice (the "Repair Notice") stating the repair or maintenance
obligation which affects the Demised Premises. If Landlord fails to remedy the
condition set forth in the Repair Notice within thirty (30) days after it was
given, then to the extent such repair or maintenance may be performed by Tenant
solely within the Demised Premises, Tenant may perform the same. Landlord shall
reimburse Tenant for the reasonable, actual costs and expenses of performing the
same, within twenty (20) after receipt from Tenant of paid receipts therefor,
together with waivers of liens with respect thereto.
ARTICLE 19
Covenant of Quiet Enjoyment
Landlord covenants that upon Tenant paying the minimum rent and
additional rent and observing and performing all the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed, Tenant
and all persons claiming through or under Tenant may peaceably and quietly enjoy
the Demised Premises, subject nevertheless to the terms and conditions of this
Lease, and provided, however, that no eviction of Tenant by reason of the
foreclosure of any mortgage now or hereafter affecting the Demised Premises,
whether such termination is by operation of law, by agreement or otherwise,
shall be construed as a breach of this covenant nor shall any action be brought
against Landlord by reason thereof.
ARTICLE 20
Excavation
In the event that construction is to be commenced or an excavation is
made or authorized for building or other purposes upon land adjacent to the
Building, Tenant shall, if necessary, afford to the person or persons causing or
authorized to commence construction or cause such excavation or to engage in
such other purpose, license to enter upon the Demised Premises for the purpose
of doing such work as shall reasonably be necessary to protect or
preserve the Building, from injury or damage and to support the Building and any
new structure to be built by proper foundations, pinning and/or underpinning, or
otherwise. However, Landlord shall cause reasonable efforts to be made to have
such work performed in a manner to minimize any interference with the normal
conduct of Tenant's business, provided overtime or premium labor shall not be
required to be employed to perform such work.
ARTICLE 21
Services and Equipment
Section 21.01. Landlord shall, at its cost and expense:
(a) Provide operatorless passenger elevator service Mondays
through Fridays from 8:00 A.M. to 6:00 P.M., holidays excepted. A
passenger elevator will be available at all other times. A freight
elevator shall be available Mondays through Fridays, holidays excepted,
only from 8:00 to 6:00 P.M. The freight elevator shall be available on a
"first come, first served" basis during the said days and hours and on a
reservation "first come, first served" basis other than on said days and
hours at Landlord's customary charges therefor.
(b) Maintain and repair the Building standard heating,
ventilating and air conditioning system servicing the Demised Premises (the
"HVAC System") installed by Landlord, except for those repairs which are
the obligation of Tenant pursuant to Article 6 of this Lease. The HVAC
System will be operated by Landlord as and when required by law, or for the
comfortable occupancy of the Demised Premises (as determined by Landlord)
throughout the year on Mondays through Fridays, holidays excepted, from
8:00 A.M. to 6:00 P.M.; provided that Tenant shall draw and close the
draperies or blinds for the windows of the Demised Premises whenever the
HVAC system is in operation and the position of the sun so requires and
shall, at all times, cooperate fully with Landlord and abide by all of the
Rules and Regulations which Landlord may prescribe for the proper
functioning of the HVAC System. Landlord agrees to operate the HVAC System
servicing the Demised Premises in accordance with their design criteria
unless energy and/or water conservation programs, guidelines or laws and/or
requirements of public authorities, shall provide for any reduction in
operations below said design criteria in which case such equipment shall be
operated so as to provide reduced service in accordance therewith. Tenant
expressly acknowledges that some or all windows are or may be hermetically
sealed and will not open and Landlord makes no representation as to the
habitability of the Demised Premises at any time the HVAC System is not in
operation. Tenant hereby expressly waives any claims against Landlord
arising out of the cessation of operation of the HVAC System, or the
suitability of the Demised Premises when the same is not
in operation, whether due to normal scheduling or the reasons set forth in
Section 21.03. Said system is designed to be capable of manufacturing,
within tolerances normal in first-class office buildings, inside space
conditions averaging 78 degrees Fahrenheit dry bulb and 50% relative
humidity when outside conditions are 95 degrees Fahrenheit dry bulb and 75
degrees Fahrenheit wet bulb, and a temperature of not lower than an average
of 68 degrees Fahrenheit when outside temperature is 50 degrees Fahrenheit
or lower. Landlord will not be responsible for the failure of the HVAC
System if such failure results from the occupancy of the Demised Premises
by more than an average of one (1) person for each one hundred (100) square
feet in any separate room or area, and upon a combined lighting and
standard electrical load not to exceed three (3) watts per usable square
foot (excluding the Building HVAC), or if Tenant shall install and operate
machines, incandescent lighting and appliances the total connected
electrical load in excess of the Building's electrical specifications, as
determined by Landlord's consulting engineers. If Tenant shall occupy the
Demised Premises at an occupancy rate of greater than that for which the
HVAC System was designed, or if the total connected electrical load is in
excess of the Building's electrical specifications, as determined by
Landlord's consulting engineers, or if Tenant's partitions shall be
arranged in such a way as to interfere with the normal operation of the
HVAC System, Landlord may elect to make changes to the HVAC System or the
ducts through which it operates required by reason thereof, and the cost
thereof shall be reimbursed by Tenant to Landlord, as additional rent,
within twenty (20) days after presentation of a bill therefor. Landlord,
throughout the term, shall have free access to all mechanical installations
of Landlord, including but not limited to air-cooling, fan, ventilating and
machine rooms and electrical closets, and Tenant shall not construct
partitions or other obstructions that may interfere with Landlord's free
access thereto, or interfere with the moving of Landlord's equipment to and
from the enclosures containing said installations. Neither Tenant nor any
person or entity within Tenant's control shall at any time enter the said
enclosures or tamper with, adjust, touch or otherwise in any manner affect
said mechanical installations, except as set forth herein with respect to
the thermostatic controls within the Demised Premises.
(c) Provide Building standard cleaning services in Tenant's
office space and public portions of the Building, except no services shall
be performed Saturdays, Sundays and holidays, in accordance with Schedule
"D" annexed hereto and made part hereof. If, however, any additional
cleaning of the Demised Premises is to be done by Tenant, it shall be done
at Tenant's sole expense, in a manner reasonably satisfactory to Landlord
and no one other than persons approved by Landlord shall be permitted to
enter the Demised Premises or the Building for such purpose. Tenant, at its
own cost, may utilize its own employees or outside contractors to perform
additional cleaning services in the Demised Premises, provided such
employees or outside contractors do not
cause any labor disruption or dispute or violate Landlord's union contracts
affecting the Building. However, such use of outside contractors shall be
subject to the right of Landlord to match the costs chargeable by such
outside contractors, in which event Landlord shall perform such services at
such cost, to be paid by Tenant within twenty (20) days after being billed
therefor. Tenant shall pay to Landlord the cost of removal of any of
Tenant's refuse and rubbish from the Demised Premises and the Building (i)
to the extent that the same, in any one day, exceeds the average daily
amount of refuse and rubbish usually attendant upon the use of such Demised
Premises as offices, as described and included in Landlord's cleaning
contract for the Building or recommended by Landlord's cleaning contractor,
and (ii) related to or deriving from the preparation or consumption of food
or drink, excluding food or drink for normal business use. Bills for the
same shall be rendered by Landlord to Tenant at such time as Landlord may
elect and shall be due and payable as additional rent within twenty (20)
days after the time rendered. Tenant, at Tenant's expense, shall cause the
Demised Premises to be exterminated from time to time to the satisfaction
of Landlord and additionally shall cause all portions of the Demised
Premises used for the storage, preparation, service or consumption of food
or beverages to be cleaned daily in a manner reasonably satisfactory to
Landlord, and to be treated against infestation by vermin, rodents or
roaches, whenever there is evidence of any infestation. Tenant shall not
permit any person to enter the Demised Premises or the Building for the
purpose of providing such extermination services, unless such persons have
been approved by Landlord. If so requested by Landlord, Tenant shall store
any refuse generated by the consumption of food or beverages on the Demised
Premises in a cold box or similar facility.
(d) Furnish hot and cold water for lavatory and drinking
purposes. If Tenant requires, uses or consumes water for any other
purposes, Landlord may install a meter or meters or other means to measure
Tenant's water consumption, and Tenant shall reimburse Landlord for the
cost of the meter or meters and the installation thereof, and shall pay for
the maintenance of said meter equipment and/or pay Landlord's cost of other
means of measuring such water consumption by Tenant. Tenant shall pay to
Landlord on demand the cost of all water consumed as measured by said meter
or meters or as otherwise measured, including sewer rents.
(e) If Tenant shall require and request any of the foregoing
services at times other than above provided, and if such request is made at
least twenty-four (24) hours prior to the time when such additional
services are required, Landlord will provide them and Tenant shall pay to
Landlord promptly thereafter the charges therefor at the then Building
standard rate charged to other tenants in the Building.
Section 21.02. Holidays shall be deemed to mean all federal holidays,
state holidays and Building Service Employees Union Contract holidays.
Section 21.03. Landlord reserves the right to interrupt, curtail or
suspend the services required to be furnished by Landlord under this Lease when
necessary by reason of accident, emergency, mechanical breakdown or when
required by any law, order or regulation of any Federal, State, County or
Municipal authority, or for any other cause beyond the control of Landlord.
Landlord shall use due diligence to complete all required repairs or other
necessary work as quickly as possible so that Tenant's inconvenience resulting
therefrom may be for as short a period of time as circumstances will reasonably
permit. Except as otherwise provided in this Lease, Tenant shall not be
entitled to nor shall Tenant make claim for any diminution or abatement of
minimum rent or additional rent or other compensation, nor shall this Lease or
any of the obligations of Tenant be affected or reduced by reason of such
interruption, curtailment, suspension, work or inconvenience.
Section 21.04. Tenant shall reimburse Landlord promptly for the
actual out-of-pocket cost to Landlord of removal from the Demised Premises and
the Building of any refuse and rubbish of Tenant not covered by the Cleaning
Specifications (Schedule D) and Tenant shall pay all bills therefor when
rendered.
Section 21.05. If Tenant shall request Landlord to furnish any
services in addition to those hereinabove provided or perform any work not
required under this Lease, and Landlord agrees to furnish and/or perform the
same, Tenant shall pay to Landlord promptly thereafter the charges therefor,
which charges are deemed to be additional rent and payable as such.
Section 21.06. Landlord shall provide security in the Building lobby
and Tenant shall have access to the Demised Premises twenty-four (24) hours per
day, seven (7) days per week, subject to emergencies, police power and Article
34.
Section 21.07. Landlord represents that the Building facility
equipment is Y2K ready and the Building shall be operated and maintained as a
first-class building similar to other first-class buildings in the vicinity of
the Building.
ARTICLE 22
Escalation
Section 22.01. Taxes. Tenant shall pay to Landlord, as additional
rent, tax escalation in accordance with this Section:
(a) Definitions: For the purpose of this Section, the following
definitions shall apply:
(i) The term "Tax Base Factor" shall mean the average of
the real estate taxes for the Building Project for the periods from
July 1, 1999 to June 30, 2000, and from July 1, 2000 to June 30, 2001,
as finally determined.
(ii) The term "The Building Project" shall mean the parcel
of Land described in Schedule B of this Lease with all improvements
erected thereon.
(iii) The term "Comparative Tax Year" shall mean the New
York City real estate tax year commencing on July 1, 2001 and each
subsequent New York City real estate tax year. If the present use of
July 1-June 30 New York City real estate tax year shall hereafter be
changed, then such changed tax year shall be used with appropriate
adjustment for the transition.
(iv) The term "Real Estate Taxes" shall mean the total of
all taxes and special or other assessments and charges of any Special
Business Improvement District levied, assessed or imposed at any time
by any governmental authority: (a) upon or against the Building
Project, and (b) in connection with the receipt of income or rents
from the Building Project to the extent that same shall be in lieu of
all or a portion of any of the aforesaid taxes or assessments, or
additions or increases thereof. Income, franchise, transfer,
inheritance, corporate, mortgage recording or capital stock taxes of
Landlord, or penalties or interest thereon, shall be excluded from
"Real Estate Taxes" for the purposes hereof. If, due to a future
change in the method of taxation or in the taxing authority, or for
any other reason, a franchise, income, transit, profit or other tax or
governmental imposition, however designated, shall be levied against
Landlord in substitution in whole or in part for the Real Estate
Taxes, or in lieu of or addition to or increase of Real Estate Taxes,
then such franchise, income, transit, profit or other tax or
governmental imposition shall be included within "Real Estate Taxes."
Tenant acknowledges that the Tax Escalation Payment (as hereinafter
defined) constitutes a method by which Landlord is seeking to
compensate for increases in expenses and that the Tax Escalation
Payment shall be calculated and paid by Tenant to Landlord whether or
not Real Estate Taxes have then been paid by Landlord.
(v) The term "the Percentage" for purposes of computing
tax escalation, shall mean 8.573%.
(b) (i) In the event that the Real Estate Taxes payable for
any Comparative Tax Year shall exceed the Tax Base Factor, Tenant
shall pay to Landlord, as additional rent for such Comparative Tax
Year, an amount for tax escalation ("Tax Escalation Payment")equal to
the Percentage of the excess. Before or after the start of each
Comparative Tax Year, Landlord shall furnish to Tenant a statement of
the Tax Escalation Payment payable for such Comparative Tax Year,
together with a copy of the tax bill. Tenant shall make its aforesaid
Tax Escalation Payment to Landlord, in installments in the same manner
and not later than thirty (30) days prior to the last date that Real
Estate Taxes are payable by Landlord to the governmental authority. If
a statement is furnished to Tenant after the commencement of the
Comparative Tax Year in respect of which such statement is rendered,
Tenant shall, within twenty (20) days thereafter, pay to Landlord an
amount equal to those installments of the total Tax Escalation Payment
then due. If, during the term of this Lease, Real Estate Taxes are
required to be paid, in full or in monthly or other installments, on
any other date or dates than as presently required, or if Landlord
shall be required to make monthly deposits of Real Estate Taxes to the
holder of any mortgage, then Tenant's Tax Escalation Payment(s) shall
be correspondingly adjusted so that the same are due to Landlord in
corresponding installments not later than thirty (30) days prior to
the last date on which the applicable installment of such Real Estate
Taxes shall be due and payable to the governmental authority or such
mortgagee.
(ii) If in any tax certiorari proceeding regarding Real
Estate Taxes payable for any Comparative Tax Year or in otherwise
establishing such taxes, Landlord has incurred expenses for legal
and/or consulting services rendered in applying for, negotiating or
obtaining a reduction of the assessment upon which the Real Estate
Taxes are predicated, Tenant shall pay an amount equal to the
Percentage of such expenses.
(iii) The statements of the Tax Escalation Payment to be
furnished by Landlord as provided above shall constitute a final
determination as between Landlord and Tenant of the Tax Escalation
Payment for the periods represented thereby, except for mathematical
error in computation.
(iv) In no event shall the fixed minimum rent under this
Lease be reduced by virtue of this Section 22.01.
(v) Upon the date of any expiration or termination of
this Lease, whether the same be the date hereinabove set forth for the
expiration of the term or any prior or subsequent date, a
proportionate share of the Tax Escalation Payment for the Comparative
Tax Year during which such expiration or termination occurs shall
immediately become due and payable by Tenant to Landlord, if it was
not theretofore already billed and paid, or due and payable by
Landlord to Tenant if the amount paid by Tenant exceeded such
proportionate share. The said proportionate share shall be based upon
the length of time that this Lease shall have been in existence during
such Comparative Tax Year. Prior to or promptly after said expiration
or termination, Landlord shall compute the Tax Escalation Payment due
from or owed to Tenant, as aforesaid and Tenant shall promptly pay
Landlord any amount unpaid. If Landlord shall receive a refund or a
tax credit of any amount of Real Estate Taxes for any Comparative Tax
Year for which Tenant has made a payment, Landlord shall pay to Tenant
within fifteen (15) days of its receipt of such refund the Percentage
of any such refund, less the Percentage of any legal fees and other
expenses provided for in Section 22.01(b)(ii) to the extent the same
have not theretofore been paid by Tenant.
(vi) Landlord's and Tenant's obligations to make the
adjustments referred to in subdivision (v) above shall survive any
expiration or termination of this Lease.
(vii) Any delay or failure of Landlord in billing any Tax
Escalation Payment hereinabove provided shall not constitute a waiver
of or in any way impair the continuing obligation of Tenant to pay
such Tax Escalation Payment hereunder.
(viii) Notwithstanding any language to the contrary
contained in this Lease, Landlord and Tenant agree that for the
purposes of this Section 22.01, Real Estate Taxes and Tax Escalation
Payments shall be calculated without regard to any deductions,
credits, abatements, or deferral of Real Estate Taxes which Landlord
may receive pursuant to Sections
11.256 through 11-267 of the Administrative Code of the City of New
York, authorized by Title 2-D of Article 4 of the New York Real
Property Tax Law and any and all rules and regulations promulgated
thereunder (herein collectively called the "ICIP Program").
Section 22.02. Porter's Wage Rate. Tenant shall pay to the Landlord,
as additional rent, a porter's wage rate escalation in accordance with this
Section:
(a) For the purpose of this Section, the following definitions
shall apply:
(i) "Wage Rate" shall mean the minimum regular hourly rate
of wages in effect as of January 1st of each year (whether paid by
Landlord or any contractor employed by Landlord) computed as paid over
a forty hour week to Porters in Class A office buildings pursuant to
an Agreement between Realty Advisory Board on Labor Relations,
Incorporated, or any successor thereto, and Local 32B-32J of the
Building Service Employees International Union, AFL-CIO, or any
successor thereto; and provided, however, that if there is no such
agreement in effect prescribing a wage rate for Porters, computations
and payments shall thereupon be made upon the basis of the regular
hourly wage rate actually payable in effect as of January 1st of each
year, and provided, however, that if in any year during the term, the
regular employment of Porters shall occur on days or during the hours
when overtime or other premium pay rates are in effect pursuant to
such Agreement, then the term "hourly rate of wages" as used herein
shall be deemed to mean the average hourly rate for the hours in a
calendar week during which Porters are regularly employed (e.g., if
pursuant to an agreement between Realty Advisory Board and the Local
the regular employment of Porters for forty hours during a calendar
week is at a regular hourly wage rate of $3.00 for the first thirty
hours, and premium or overtime hourly wage rate of $4.50 for the
remaining ten hours, then the hourly rate of wages under this Article
during such period shall be the total weekly rate of $135.00 divided
by the total number of regular hours of employment, forty or $3.375).
Notwithstanding the foregoing, if at any time such hourly wage rate is
different for new hire and old hire Porters, then thereafter such
hourly wage rate shall be based on the weighted average of the wage
rates for the different classifications of Porters.
(ii) "Base Wage Rate" shall mean the Wage Rate in effect
on January 1, 2000.
(iii) The term "Porters" shall mean that classification of
non-supervisory employees employed in and about the Building who
devote a major portion of their time to general cleaning, maintenance
and miscellaneous services essentially of a non-technical and non-
mechanical nature and are the type of employees who are presently
included in the classification of "Class A-Others" in the Commercial
Building Agreement between the Realty Advisory Board and the aforesaid
Union.
(iv) The term "minimum regular hourly rate of wages" shall
not include any payments for fringe benefits or adjustments of any
kind.
(v) The term "Multiplication Factor" shall mean 75,000.
(b) If the Wage Rate for any calendar year during the term shall
be increased above the Base Wage Rate, then Tenant shall pay, as additional
rent, an amount equal to the product obtained by multiplying the
Multiplication Factor by 100% of the number of cents (including any
fraction of a cent) by which the Wage Rate is greater than the Base Wage
Rate, such payment to be made in equal one-twelfth (1/12th) monthly
installments commencing with the first monthly installment of minimum rent
falling due on or after the effective date of such increase in Wage Rate
(payable retroactive from said effective date) and continuing thereafter
until a new adjustment shall have become effective in accordance with the
provisions of this Article. Landlord shall give Tenant notice of each
change in Wage Rate which will be effective to create or change Tenant's
obligation to pay additional rent pursuant to the provisions of this
Section 22.02 and such notice shall contain Landlord's calculation in
reasonable detail and certified as true by an authorized partner of
Landlord or of its managing agent, of the annual rate of additional rent
payable resulting from such increase in Wage Rate. Such amounts shall be
prorated for any partial calendar years during the term.
(c) Every notice given by Landlord pursuant to Section 22(b)
hereof shall be conclusive and binding upon Tenant, except for manifest
error.
(d) The "Wage Rate" is intended to be a substitute comparative
index of economic costs and does not necessarily reflect the actual
costs of wages or other expenses of operating the Building. The Wage Rate
shall be used whether or not the Building is a Class A office building and
whether or not Porters are employed in the Building and without regard to
whether such employees are members of the Union referred to in subsection
(a) hereof.
ARTICLE 23
Electricity
Section 23.01.
(a) Landlord shall provide electricity to the Demised Premises
on a submetering basis from the existing risers and switches on the floor.
Tenant's consumption of electricity shall be measured by one independent
time of day (or use) submeter furnished and installed by Landlord, at the
cost of Tenant, and read by Landlord. If Tenant shall require electricity
exceeding the available service capacity, any additional risers, feeders
and similar electrical equipment which may be required, shall be installed
by Landlord, at the expense of Tenant, to and for the use of Tenant in the
Demised Premises during the term hereof. Any riser(s) shall terminate at a
disconnect switch to be located at a point designated by Landlord in
electrical closet(s) on the floor of the Demised Premises. Such disconnect
switch shall be the sole source from which Tenant is to obtain electricity.
Such submeter shall at all times be maintained by Tenant, at its expense,
unless damaged due to the negligence of Landlord, its agents, employees or
contractors. Tenant covenants and agrees to purchase electric power from
Landlord or Landlord's designated agent at charges, terms and rates set,
from time to time, during the term of this Lease by Landlord but not more
than those specified in the service classification in effect from time to
time pursuant to which Landlord then purchases electric current from the
Electric Service Provider or Alternate Service Provider (as said terms are
hereinafter defined), as the case may be, plus a fee equal to five (5%)
percent of such charges, representing agreed upon administrative and
overhead costs to Landlord. Bills therefor shall be rendered monthly or at
such other times as Landlord may elect together with copies of the submeter
printouts showing the totalized demand for the meter and copies of the
applicable public utility rate schedule pursuant to which Landlord is then
purchasing electricity for the Building, and the amount, as computed from
such meter, shall be deemed to be, and be paid as, additional rent, within
ten (10) days thereafter, without any set-off or deduction. If any tax is
imposed upon Landlord's receipt from the sale or resale of electric energy
to Tenant by any federal, state or municipal authority, Tenant covenants
and agrees that, where permitted by law, Tenant's pro rata share of such
taxes shall be passed on to, and included in the bill of, and paid by,
Tenant to Landlord.
(b) Landlord has advised Tenant that presently Con Edison
("Electric Service Provider") is the utility company selected by Landlord
to provide electricity service for the Building. Notwithstanding the
foregoing, if permitted by law, Landlord shall have the right at any time
and from time to time during the term of this Lease to either contract for
service from a different company or companies providing comparable
electricity service at comparable or lower rates (each such company shall
hereinafter be referred to as an "Alternate Service Provider") or continue
to contract for service from the Electric Service Provider.
(c) Tenant shall cooperate with Landlord, the Electric Service
Provider, and any Alternate Service Provider at all times and, as
reasonably necessary, shall allow Landlord, Electric Service Provider, and
any Alternate Service Provider reasonable access to the Building's electric
lines, feeders, risers, wiring, and any other machinery within the Demised
Premises.
Section 23.02. Landlord shall not be liable in any way for any loss,
damage or expense that Tenant may sustain or incur by reason of or any failure,
change, interruption or defect in the supply or character of electric energy
furnished to the Demised Premises by reason of any requirement, act or omission
of the Electric Service Provider or Alternate Service Provider (as said terms
are hereinafter defined) serving the Building with electricity and no such
failure, change, interruption or defect shall constitute an act of constructive
eviction, in whole or in part, or entitle Tenant to any abatement of minimum
rent or additional rent or relieve Tenant of its obligations under this Lease.
Tenant shall furnish and install, at its sole cost and expense, all lighting
fixtures, tubes, lamps, bulbs, ballasts and outlets relating to Tenant's
electrical equipment.
Section 23.03. Tenant's connected electrical load in the Demised
Premises, including lighting, shall not at any time exceed the capacity of any
of the electrical conductors and equipment in or servicing the Demised Premises
which capacity Landlord represents to be six (6) watts per usable square foot
(excluding the Building HVAC). In order to insure that such capacity is not
exceeded and to avert possible adverse effect upon the Building electric
service, Tenant shall not, without Landlord's prior consent in each instance,
make any alteration or addition to the electric system of the Demised Premises
existing on the Commencement Date, nor connect any additional fixtures,
appliances or equipment that would exceed the electrical capacity of the Demised
Premises represented by Landlord. Should Landlord grant such consent, all
additional risers or other equipment required therefor shall be provided by
Landlord and the cost thereof shall be paid by Tenant.
Section 23.04. Landlord reserves the right to discontinue furnishing
electric energy at any time, whether or not Tenant is in default under this
Lease, upon not less than thirty (30) days' notice to Tenant, provided Landlord
discontinues furnishing electricity to all other tenants in the Building. If
Landlord exercises such right of discontinuance, 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 obligated to furnish electric energy to Tenant. If Landlord so
elects to discontinue furnishing electric energy to Tenant, Tenant shall arrange
to obtain electric energy directly from the public utility company furnishing
electric service to the Building. Notwithstanding the foregoing, Landlord shall
not discontinue furnishing electric energy until Tenant is able to obtain such
electric energy directly from said public utility. Such electric energy may be
furnished to Tenant by means of the then existing Building system feeders,
risers and wiring to the extent that they are available, suitable and safe for
such purposes. All meters and additional panel boards, feeders, risers, wiring
and other conductors and equipment which may be required to obtain electric
energy directly from such public utility company, and which are to be located
within the Demised Premises, shall be installed by Landlord at its expense if
such discontinuance was voluntary, or installed by Landlord at Tenant's expense
if such discontinuance was required by law or the utility company. Thereafter,
all of such equipment shall be maintained by Tenant at its expense.
ARTICLE 24
Broker
Landlord and Tenant covenant and represent that the sole brokers who
negotiated and brought about this transaction were Cushman Realty Corporation,
CRF Partners, Inc. and Cohen Brothers Realty Corporation. Landlord agrees to
pay a commission therefor to Cushman Realty Corporation and Cohen Brothers
Realty Corporation as per separate agreements and Landlord shall not be
responsible for any separate payment to CRF Partners, Inc. . Landlord and
Tenant agree to hold the other harmless against any claims for a brokerage
commission arising out of a breach by the other of the representations contained
in this Article.
ARTICLE 25
Subordination and Ground Lease
Section 25.01. This Lease is subject and subordinate to (a) all
ground and underlying leases on the Land and/or Building now or hereafter
existing, and (b) to all mortgages which may now or hereafter affect any such
ground and underlying leases or the Land and/or the Building, and to all
renewals, modifications, amendments, consolidations, replacements or extensions
of any of the foregoing. This clause shall be self-operative and no further
instrument of subordination shall be required. However, in confirmation of such
subordination, Tenant, at any time and from time to time, shall execute
promptly, and within fifteen (15) days of such request, any certificate and
document that Landlord may reasonably request which reasonably evidences such
subordination. Landlord, within forty-five (45) days from the date hereof,
agrees to obtain from Credit Suisse First Boston Mortgage Capital, LLC, the
holder of the existing mortgage which is a lien on the Building Project, an
agreement (the "non-disturbance and attornment agreement") providing in
substance that Tenant's possession
of and rights in the Demised Premises and under this Lease shall remain
undisturbed, so long as Tenant is not in default under the provisions of this
Lease, after any notice and the expiration of any applicable periods of grace,
and provided Tenant agrees in said instrument to attorn to such mortgagee as its
landlord under this Lease. If a fully executed and acknowledged original copy of
such non-disturbance and attornment agreement is not delivered to Tenant within
such forty-five (45) day period, Tenant, as its sole remedy for Landlord's
failure to obtain the non-disturbance and attornment agreement, may by notice
given within fifteen (15) days after the expiration of such forty-five (45) day
period, terminate this Lease on a date specified in such notice which shall not
be later than thirty (30) days after the date of said notice, unless prior to
such termination date all such copies are delivered to Tenant or Tenant elects
to rescind such notice. In the event of such termination, neither Landlord nor
Tenant shall have any further liability to each other except that Landlord shall
return to Tenant all moneys given to Landlord upon the execution of this Lease.
Concurrently with the execution of this Lease, Tenant has executed a non-
disturbance and attornment agreement with respect to such mortgagee. It is
further agreed that this Lease shall not be subject and subordinate to and
Tenant shall not be required to attorn to any mortgages or any ground or
underlying leases which may hereafter affect the Building Project, unless the
holder of each such mortgage or lessor under each such lease executes such non-
disturbance and attornment agreement in the then customary form of such
mortgagee or lessor.
Section 25.02. (a) The Tenant covenants and agrees that if by reason
of a default under any underlying lease, or under any mortgage, such
underlying lease and the leasehold estate of the Landlord in the Demised
Premises is terminated, or the Land and/or the Building are foreclosed upon
or transferred in lieu of a foreclosure, the Tenant will attorn to the then
holder of the reversionary interest in the premises demised by this Lease
or the foreclosure purchaser or transferee in lieu of foreclosure, and will
recognize such holder, purchaser or transferee as the Tenant's Landlord
under this Lease, unless, subject to any non-disturbance agreement, the
lessor under such underlying lease or the holder of any such mortgage
shall, in any proceeding to terminate such underlying lease or foreclose
such mortgage, elects to terminate this Lease and the rights of Tenant
hereunder provided, however, the holder of the reversionary interest or the
foreclosure purchaser or transferee in lieu of foreclosure shall not be (i)
liable for any act or omission or negligence of Landlord under this Lease;
(ii) subject to any counterclaim, defense or offset, not expressly provided
for in this Lease and asserted with reasonable promptness which theretofore
shall have accrued to Tenant against Landlord; (iii) obligated to perform,
undertake or complete any work in the Demised Premises or to prepare it for
occupancy; (iv) bound by any previous modification or amendment of this
Lease or by any previous prepayment of more than one (1) month's rent,
unless such modification or prepayment shall have been approved in writing
by the holder of such Mortgage; (v) obligated to repair the Demised
Premises, or the Building, or any part thereof, in the event of any damage
beyond such repair as can reasonably be accomplished
from the net proceeds of insurance actually made available to the then
holder of the reversionary interest or the foreclosure purchaser or
transferee in lieu of foreclosure; (vi) obligated to repair the Demised
Premises or the Building, or any part thereof, in the event of partial
condemnation of the Demised Premises or the Building; (vii) required to
account for any security deposit of Tenant unless actually delivered to
such holder, purchaser or transferee by Landlord; (viii) bound by any
obligation to make any payment to Tenant or grant any credits, except for
services, repairs, maintenance and restoration provided for under this
Lease to be performed by Landlord after the date of attornment; or (ix)
responsible for any monies owing by Landlord to Tenant. Nothing contained
in this subparagraph shall be construed to impair any right otherwise
exercisable by any such holder, purchaser or transferee. Tenant agrees to
execute and deliver, at any time and from time to time, upon the request of
the Landlord of or the lessor under any such underlying lease or the holder
of any such mortgage any instrument which may be necessary or appropriate
to evidence such attornment. The Tenant further waives the provisions of
any statute or rule or law now or hereafter in effect which may give or
purport to give Tenant any right of election to terminate this Lease or to
surrender possession of the premises demised hereby in the event any
proceeding is brought by the lessor under any underlying lease or the
holder of any such mortgage to terminate the same, and agrees that, subject
to any non-disturbance agreement, unless and until any such lessor or
holder, in connection with any such proceeding, shall elect to terminate
this Lease and the rights of Tenant hereunder, this Lease shall not be
affected in any way whatsoever by any such proceeding.
(b) Upon Tenant's receipt of a written notice from the lessor
under any underlying lease or the holder of any such mortgage to the effect
that (i) the lessor of said underlying lease or the holder of any such
mortgage is entitled to send a notice to the Landlord, as tenant under said
underlying lease, terminating said lease, or such holder is entitled to
performance by Tenant under the Lease, and (ii) the Tenant should pay the
minimum rent and additional rent thereafter due and payable under this
Lease to said lessor or the holder of any such mortgage at a place
designated in such notice, Tenant shall pay such minimum rent and
additional rent to said lessor under said underlying lease or the holder of
any such mortgage at such designated place until such time as said lessor
or holder shall notify Tenant that Landlord is no longer in default under
said underlying lease or such mortgage and that Tenant may resume paying
all minimum rent and additional rent thereafter due and payable under this
Lease to Landlord. Tenant shall have no liability to the Landlord for
paying any minimum rent or additional rent to said lessor under the
underlying lease or holder of any such mortgage or otherwise acting in
accordance with the provisions of any notice sent to it under this
paragraph and shall be relieved of its obligations to pay Landlord any
minimum rent or additional rent under this
Lease to the extent such payments are made to said lessor under the
underlying lease.
Section 25.03. In the event of any act or omission by Landlord which
would give Tenant the right to terminate this Lease or to claim a partial or
total eviction, pursuant to the terms of this Lease, if any, Tenant will not
exercise any such right until:
(a) it has given a written notice to cure (concurrently with any
notice given to Landlord), regarding such act or omission to the holder of
any mortgage and to the landlord of any ground or underlying lease, whose
names and addresses shall previously have been furnished to Tenant,
addressed to such holder and landlord at the last addresses so furnished,
and
(b) a reasonable period of time (not to exceed the period in
this Lease or the ground lease or the mortgage, as the case may be) for
remedying such act or omission shall have elapsed following such giving of
notice and the expiration of any grace period applicable thereto in favor
of Landlord hereunder, during which such holder and landlord, or any of
them, with reasonable diligence, following the giving of such notice, shall
not have commenced and is or are not continuing to remedy such act or
omission or to cause the same to be remedied.
Section 25.04. If, in connection with obtaining financing for the
Building, or of Landlord's interest in any ground or underlying lease, a
banking, insurance or other recognized institutional lender shall request
modifications in this Lease as a condition to such financing, Tenant will not
withhold, delay or defer its consent thereto and its execution and delivery of
such modification agreement, provided that such modifications do not increase
the obligations (including the monetary obligations) of Tenant hereunder or
adversely affect the leasehold interest hereby created or Tenant's use and
enjoyment of the Demised Premises or Tenant's rights or reduce the Building's
services or Landlord's obligations.
Section 25.05. Landlord represents that the only mortgage covering
the Land and Building is the existing mortgage held by Credit Suisse First
Boston Mortgage Capital, LLC, that there are no defaults thereunder by Landlord,
and that there is no present ground or underlying lease covering the Land and
Building.
ARTICLE 26
Estoppel Certificate
Landlord and Tenant shall at any time, and from time to time, within
ten (10) business days after so requested by the other execute, acknowledge and
deliver to the other , a statement addressed to the other or its designee or the
holder of any mortgage encumbering the Land and/or Building (a) certifying that
this Lease is unmodified and in full force and effect
(or, if there have been modifications, that the same is in full force and effect
as modified and stating the modifications), (b) stating the dates to which the
minimum rent and additional rent have been paid, (c) stating whether or not
there exists any default by the other under this Lease, and, if so, specifying
each such default, and (d) such other information as may be required by
Landlord, Tenant or any mortgagee, it being intended that any such statement may
be relied upon by Landlord, Tenant, by any mortgagee or prospective mortgagee of
any mortgage affecting the Building or the leasehold estate under any ground or
underlying lease affecting the land described in Schedule B and/or Building and
improvements thereon, or may be relied upon by the landlord under any such
ground or underlying lease or a purchaser of Lessee's estate under any such
ground or underlying lease or any interest therein, or any assignee of Tenant.
ARTICLE 27
Waiver of Jury Trial
Tenant hereby waives the right to trial by jury in any summary
proceeding that may hereafter be instituted against it or in any action or
proceeding that may be brought by Landlord on matters which are connected with
this Lease, or any of its provisions or Tenant's use or occupancy of the Demised
Premises, including any claims for injury or damage, or any emergency or other
statutory remedy with respect thereto.
ARTICLE 28
Surrender of Premises
Section 28.01. Upon the expiration or other termination of the term
of this Lease, Tenant shall quit and surrender the Demised Premises, vacant,
broom clean, in good order and condition, ordinary wear and tear and damage by
fire or other casualty excepted, and shall remove all its personal property
therefrom. Tenant's obligation to observe or perform this covenant shall
survive the expiration or other termination of the term of this Lease.
Section 28.02. In the event Tenant shall remain in possession of the
Demised Premises after the expiration or other termination of the term of this
Lease, such holding over shall not constitute a renewal or extension of this
Lease. Landlord, may, at its option, elect to treat Tenant as one who is not
removed at the end of the term, and thereupon be entitled to all of the remedies
against Tenant provided by law in that situation or Landlord may elect to
construe such holding over as a tenancy from month-to-month, subject to all of
the terms and conditions of this Lease, except as to the duration thereof, and
the minimum rent shall be due, in either of such events, at a monthly rental
rate equal to two (2) times the monthly installment of minimum rent which would
otherwise be payable for such month, together with any and all additional rent.
Tenant shall also be responsible for and hereby indemnifies Landlord against any
claims made by any succeeding tenant or prospective tenant founded upon Tenant's
delay in surrendering the Demised Premises to Landlord.
ARTICLE 29
Rules and Regulations
Section 29.01. Tenant, its servants, employees, agents, visitors and
licensees shall observe faithfully and comply with the rules and regulations set
forth in Schedule "C" attached hereto and made a part hereof. Landlord shall
have the right from time to time during the term of this Lease to make
reasonable changes in and additions to the rules thus set forth provided such
changes and additions are applicable to all other office tenants in the
Building. All rules and regulations shall be enforced in a non-discriminatory
manner.
Section 29.02. Any failure by Landlord to enforce any rules and
regulations now or hereafter in effect, either against Tenant or any other
tenant in the Building, shall not constitute a breach hereunder or waiver of any
such rules and regulations.
ARTICLE 30
Successors and Assigns and Definitions
Section 30.01. The covenants, conditions and agreements contained in
this Lease shall bind and enure to the benefit of Landlord and Tenant and their
respective distributees, legal representatives, successors and, except as
otherwise provided herein, their assigns.
Section 30.02. The term "Landlord" as used in this Lease, so far as
the covenants and agreements on the part of Landlord are concerned shall be
limited to mean and include only the owner or owners at the time in question of
the tenant's estate under any ground or underlying lease covering the Land
described in Schedule B hereto annexed and/or the fee title of Landlord covering
the Land and/or the Building and improvements thereon. In the event of any
assignment or assignments of such tenant's estate or transfer of such title,
Landlord herein named (and in case of any subsequent assignment or transfer, the
then assignor or transferor) shall be automatically freed and relieved from and
after the date of such assignment or transfer of all personal liability as
respects to performance of any of Landlord's covenants and agreements thereafter
to be performed, and such assignee or transferee shall be bound by all of such
covenants and agreements; it being intended that Landlord's covenants and
agreements shall be binding on Landlord, its successors and assigns only during
and in respect of their successive periods of such ownership.
However, in any event, the members in Landlord shall not have any
personal liability or obligation by reason of any default by Landlord under any
of Landlord's covenants and agreements in this Lease. In case of such default,
Tenant will look only to Landlord's estate, as tenant, under such ground or
underlying lease and/or its interest in the Land and/or Building, to recover any
loss or damage resulting therefrom; and Tenant shall have no right to
nor shall Tenant assert any claim against nor have recourse to Landlord's other
property or assets to recover such loss or damage.
Section 30.03. All pronouns or any variation thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural as the identity of
the person or persons may require; and if Tenant shall consist of more than one
(1) person, the obligations of such persons, as Tenant, under this Lease, shall
be joint and several.
Section 30.04. The definitions contained in Schedule E annexed hereto
are hereby made a part of this Lease.
ARTICLE 31
Notices
Any notice, statement, certificate, request, approval, consent or
demand required or permitted to be given under this Lease shall be in writing
sent by registered or certified mail (or reputable, commercial overnight courier
service) return receipt requested, addressed, as the case may be, to Landlord,
at 750 Lexington Avenue, New York, New York 10022, and to Tenant prior to its
occupancy of the Demised Premises at its address hereinbefore first set forth,
and after its occupancy at the Demised Premises with copies to Chief Financial
Officer and General Counsel, CMGI, Inc., 100 Brickstone Square, Andover,
Massachusetts 01810, or to such other addresses as Landlord or Tenant
respectively shall designate in the manner herein provided. Such notice,
statement, certificate, request, approval, consent or demand shall be deemed to
have been given on the date when mailed, as aforesaid, or on the date of
delivery by overnight courier.
ARTICLE 32
No Waiver; Entire Agreement
Section 32.01. The specific remedies to which Landlord may resort
under the provisions of this Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which Landlord may be
lawfully entitled in case of any breach or threatened breach by Landlord of any
of the terms, covenants and conditions of this Lease. The failure of Landlord or
Tenant to insist upon the strict performance of any of the terms, covenants and
conditions of this Lease, or to exercise any right or remedy herein contained,
shall not be construed as a waiver or relinquishment for the future of such
term, covenant, condition, right or remedy. A receipt by Landlord of minimum
rent or additional rent with knowledge of the breach of any term, covenant or
condition of this Lease shall not be deemed a waiver of such breach. This Lease
may not be changed or terminated orally. In addition to the other remedies in
this Lease provided, Landlord shall be entitled to seek to restrain by
injunction, the violation or attempted or threatened violation of any of the
terms, covenants and conditions of this Lease or to a decree, any court having
jurisdiction in the matter, compelling
performance of any such terms, covenants and conditions.
Section 32.02. No receipt of monies by Landlord from Tenant, after
any re-entry or after the cancellation or termination of this Lease in any
lawful manner, shall reinstate the Lease; and after the service of notice to
terminate this Lease, or after commencement of any action, proceeding or other
remedy, Landlord may demand, receive and collect any monies due, and apply them
of account of Tenant's obligations under this Lease but without in any respect
affecting such notice, action, proceeding or remedy, except that if a money
judgment is being sought in any such action or proceeding, the amount of such
judgment shall be reduced by such payment.
Section 32.03. If Tenant is in arrears in the payment of minimum rent
or additional rent, Tenant waives its right, if any, to designate the items in
arrears against which any payments made by Tenant are to be credited and
Landlord may apply any of such payments to any such items in arrears as
Landlord, in its sole discretion, shall determine, irrespective of any
designation or request by Tenant as to the items against which any such payments
shall be credited.
Section 32.04. No payment by Tenant nor receipt by Landlord of a
lesser amount than may be required to be paid hereunder shall be deemed to be
other than on account of any such payment, nor shall any endorsement or
statement on any check or any letter accompanying any check tendered as payment
be deemed an accord and satisfaction and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
payment due or pursue any other remedy in this Lease provided.
Section 32.05. This Lease and the Schedules annexed hereto constitute
the entire agreement between Landlord and Tenant referable to the Demised
Premises, and all prior negotiations and agreements are merged herein.
Section 32.06. If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
ARTICLE 33
Captions
The captions of Articles in this Lease are inserted only as a matter
of convenience and for reference and they in no way define, limit or describe
the scope of this Lease or the intent of any provision thereof.
ARTICLE 34
Inability to Perform
If the performance or observance by Landlord or Tenant of any of the
terms, covenants and conditions of this Lease on the part of Landlord or Tenant
to be performed shall be delayed by reason of unavoidable delays (as hereinafter
defined), then the time for the performance or observance thereof shall be
extended for the period of time as Landlord or Tenant shall have been so
delayed, provided Tenant shall continue, notwithstanding unavoidable delays, to
be obligated to pay minimum rent and additional rent without abatement.
Notwithstanding anything to the contrary contained in this Lease, if
Landlord shall fail to provide services or perform work or repairs, as provided
in this Lease (collectively, an "Interruption"), and such Interruption shall
materially impair the customary operation of Tenant's business in all or any
part of the Demised Premises (other than a de minimis part), and if (i) such
Interruption shall continue for a period in excess of thirty (30) consecutive
days following receipt by Landlord of notice from Tenant describing such
Interruption and (ii) such Interruption shall not have been caused by an act or
omission in violation of this Lease by or the negligence of Tenant, or of Tenant
agents, servants, employees or contractors (an Interruption that satisfied all
of the foregoing conditions being referred to hereinafter as a "Material
Interruption"), then Tenant shall be entitled to an abatement of the minimum
rent and escalation rent payable under Article 22 (such abatement to be prorated
if only a part of the Demised Premises shall be so affected by such Material
Interruption),which shall begin on the 31st consecutive day of such Material
Interruption and shall end upon the date such Material Interruption has been
terminated.
The words "unavoidable delays", as used in this Lease shall mean (a)
the enactment of any law or issuance of any governmental order, rule or
regulation (i) prohibiting or restricting performance of work of the character
required to be performed by Landlord under this Lease, or (ii) establishing
rationing or priorities in the use of materials, or (iii) restricting the use of
labor, and (b) strikes, lockouts, acts of God, inability to obtain labor or
materials, enemy action, civil commotion, fire, unavoidable casualty or other
similar types of causes beyond the reasonable control of Landlord, other than
financial inability.
ARTICLE 35
No Representations by Landlord
Neither Landlord nor any agent or employee of Landlord has made any
representation whatsoever with respect to the Demised Premises except as
expressly set forth in this Lease.
ARTICLE 36
Rent Control
In the event the minimum rent and/or additional rent or any part
thereof provided to be paid by Tenant under the provisions of this Lease during
the demised term shall become uncollectible or shall be reduced or required to
be reduced or refunded by virtue of any federal, state, county or city law,
order or regulation, or by any direction of a public officer or body pursuant to
law, or the orders, rules, code or regulations of any organization or entity
formed pursuant to law, Tenant shall enter into such agreement(s) and take such
other steps (without additional expense or liability to Tenant) as Landlord may
reasonably request and as may be legally permissible to permit Landlord to
collect the maximum rents which from time to time during the continuance of such
legal rent restriction may be legally permissible (and not in excess of the
amounts reserved therefor under this Lease). Upon the termination of such legal
rent restriction, (a) the minimum rent and/or additional rent shall become and
thereafter be payable in accordance with the amounts reserved herein for the
periods following such termination, and (b) Tenant shall pay to Landlord
promptly upon being billed, to the maximum extent legally permissible, an amount
equal to (i) minimum rent and/or additional rent which would have been paid
pursuant to this Lease but for such legal rent restriction less (ii) the rents
paid by Tenant during the period such legal rent restriction was in effect.
ARTICLE 37
Landlord's Contribution
Subject to the provisions of Article 5 of this Lease, and except for
the work to be performed by Landlord pursuant to Section 2.02, Tenant agrees to
perform the initial work and installations required to make the Demised Premises
suitable for the conduct of Tenant's business. Tenant agrees to deliver to
Landlord, for Landlord's approval the plans and specifications for Tenant's
initial work within sixty (60) days following the Commencement Date (the
"initial work"). Landlord agrees to contribute up to the sum of $1,912,500.00
("Landlord's Contribution") toward the cost of such work, which shall include
hard and soft costs. Landlord shall pay to Tenant, from time to time, but not
more often that once a month, ninety (90%) percent of the cost of the work
requested by Tenant theretofore performed by the contractor, provided Tenant
delivers to Landlord concurrently with its request, receipted bills of the
contractor involved approved by Tenant, a certificate by Tenant's architect that
such bills have been approved and the work or materials evidenced by such bills
have been satisfactorily performed or delivered and a waiver of mechanic's lien
signed by the contractor with respect to the amount paid as evidenced by the
receipted bill, such payment to be made to Tenant within ten (10) days after
receipt of Tenant's request together with the aforesaid documentation. Within
ten (10) days after Landlord receives a certificate from Tenant's architect
stating that Tenant's work has been substantially completed, that the same has
been performed in compliance with all applicable Governmental Requirements and
the approved plans and specifications and delivery to Landlord, if applicable,
of the final "sign-off" letters and equipment use permits (as necessary) for all
work performed from the applicable municipal authorities, Landlord shall pay to
Tenant the aggregate of the ten (10%) percent sums retained
by Landlord. Landlord shall have no obligation or responsibility to pay any cost
exceeding the amount of Landlord's Contribution. If the amount Tenant expends
for the cost exceeds the amount of Landlord's Contribution, Tenant shall be
responsible for the payment to the contractors of the excess. If said amount is
less than the amount of Landlord's Contribution, Landlord shall apply such
difference to the payment of minimum rent as and when the same would otherwise
become due and payable under this Lease. Tenant shall indemnify and hold
Landlord harmless from and against any and all claims, costs and expenses in
connection with such work exceeding the amount of Landlord's Contribution.
ARTICLE 38
Roof Equipment
Tenant shall have the right to use its prorata share of the available
area on the roof designated by Landlord for the purpose of locating and/or
installing, at its own cost and expense, a satellite dish, antenna and/or
telecommunications equipment (collectively "Equipment"). However, if Landlord
thereafter is required to use additional area on the roof in connection with the
operation of the Building, and no other area on the roof is then available for
such purpose, Tenant's prorata share thereof shall be reduced accordingly and
Tenant shall remove its Equipment from such area and repair any damage caused
thereby. Tenant shall also have the right, subject to the provisions of Article
5, to install in the Building core area, risers, ducts, conduits or other
facilities, necessary to connect such Equipment to the Demised Premises or the
Additional Space (as hereinafter defined) then leased by Tenant. All such
Equipment and connecting facilities shall be installed and maintained in a
manner not to disturb the other tenants in the Building, the operation of the
Building systems therein, in compliance with all applicable Governmental
Requirements, and subject to plans showing the type of Equipment and connecting
facilities to be installed and its location and manner of installation, such
plans to be approved by Landlord. Tenant shall cause the Equipment to be covered
under Tenant's liability insurance policy. Tenant shall indemnify and hold
Landlord harmless from and against any loss, claim, damage or expense in
connection with or relating to the installation, maintenance and operation of
such Equipment and connecting facilities. Tenant, at its own cost, shall repair
any damage to the Building, roof and/or Demised Premises caused by such work,
and shall at all times maintain and repair the Equipment and wiring, including
any required replacements thereof.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
622 BUILDING COMPANY LLC,
By: 622 Building Corp.,
its managing member
By: /s/ Charles Steven Cohen
-------------------------------------------
Charles Steven Cohen, President
Landlord
CMGI, INC.
By: /s/ Andrew J. Hajducky III
-------------------------------------------
Andrew J. Hajducky III
Executive Vice President, CFO and Treasurer
Tenant