Common use of Additional Space Clause in Contracts

Additional Space. Section 40.1 (A) Subject to the provisions of Section 40.5 hereof, if at any time during the Term (i) an entire floor or any portion of a floor having an area of ten thousand (10,000) rentable square feet or more which is above the ground floor of the Building (other than any floor of the Building demised to Tenant on the date hereof) (a "Floor Additional Space") or (ii) any portion of the second floor of the Building, if the Second Floor Premises shall then comprise a portion of the Premises (other than any space on the second floor of the Building demised to Tenant on the date hereof (a "Second Floor Additional Space"; any Floor Additional Space or Second Floor Additional Space is hereinafter referred to as "Additional Space"), shall become vacant and available for occupancy, then, provided that MONY is the Tenant hereunder and no Event of Default has occurred and is continuing, Landlord, prior to offering to lease such space to any Person, shall deliver a notice to MONY stating that Landlord is prepared to enter into a lease for such Additional Space (the "Additional Lease") with Tenant, which notice (the "Additional Lease Proposal") shall specify with respect to such Additional Space (a) the Space Factor for the Additional Space, (b) any "free rent" period to be 98 99 included in the Additional Lease, (c) the work which Landlord will perform, if any, to prepare such Additional Space for Tenant's initial occupancy, (d) the amount of money, if any, which Landlord will provide to Tenant in connection with the performance by Tenant of any such work, (e) the anticipated commencement date of the tern, of the Additional Lease, (f) the fact that Tenant shall have no right to assign the Additional Lease, in whole or in part, or sublease all or any portion of the Additional Lease, and (g) any other applicable terms and conditions not otherwise provided for in this Article 40.

Additional Space. Subject to all of the terms and conditions set forth in this Section 40.1 2.4, Landlord hereby grants to Tenant, the continuous first right to lease for the Applicable Term additional square footage located on the third (A3rd) Subject floor of the Building (the “Additional Space”) consisting of approximately 8,199 rentable square feet and which is depicted on Exhibit C-2 attached hereto (the “Right of First Offer”). Tenant’s rights hereunder shall be subject to any renewal, expansion option, first right of offer, first right of refusal or similar rights previously granted to (i) any tenant of the Project as of the Effective Date, (ii) now or hereafter granted to Zayo Group, LLC and its successors and assigns; or, (iii) to any tenant leasing any portion of the Additional Space after Tenant fails to exercise any Right of First Offer or Right of First Refusal (collectively, the “Superior Rights”). The Superior Rights as of the date of the Lease are described on Exhibit F attached hereto. The “Applicable Term” for which any First Offer Space will be leased to Tenant pursuant to the Right of First Offer will always be coterminous with the Term of this Lease and will therefore be the remaining Term of this Lease as of the date on which Tenant first becomes obligated to pay Rent for such First Offer Space. If such remaining Term is less than two years, then Tenant will be required to exercise the Renewal Option in order to lease the subject Additional Space and therefore the Applicable Term will run until the end of the Renewal Term if applicable. In the event less than two years remains in the Renewal Term, this Right of First Offer shall be deemed to have expired and be null, void and of no further effect. If, at any time while the Right of First Offer is in effect, any Additional Space, that is Available for Lease. Landlord will, prior to binding itself to a lease of such space to any third party (other than a party exercising Superior Rights), except as subject to Tenant’s rights hereunder, notify Tenant (an “Offer Notice”) of the availability of such Additional Space and the terms and conditions that Landlord is willing to lease such Additional Space to Tenant. The Offer Notice shall provide for the following: (i) an improvement allowance, based on a per rentable square foot basis, equal to $59.00 multiplied by a fraction the numerator of which is the scheduled number of months remaining in the Term as of the date such Additional Space will be added to the Premises and the denominator of which is 84, and (ii) Basic Rent shall be equal on a per rentable square foot basis as the Basic Rent for the Suite 350 Premises as provided in Paragraph 6 of Section 1.2, which shall then become Basic Rent for the Additional Space to Fair Market Basic Rent, which shall then become Basic Rent for the Additional Space. Tenant will have until 5:00 p.m. on the seventh (7th) Business Day after Landlord’s delivery of an Offer Notice (the “ROFO Acceptance Deadline”) to notify Landlord that Tenant will lease all of the portion of the Additional Space described in the Offer Notice (an “ROFO Acceptance Notice “). If Tenant delivers its ROFO Acceptance Notice prior to the ROFO Acceptance Deadline, then Landlord and Tenant will execute an amendment to this Lease that incorporates such Additional Space into the Premises for the remaining Term hereof (including any renewal thereof), increases Tenant’s Share of Expenses Percentage to reflect the increase in rentable area of the Premises, provides for the Basic Rent to be paid by Tenant for the Additional Space for the remainder of the initial Term and for a tenant improvement allowance for improvements to such Additional Space per the Offer Notice. If Tenant does not exercise its Right of First Offer pursuant to the terms of this Section 2.4.1, Landlord may, subject to the provisions of Section 40.5 hereof2.5, if at any time during the Term (i) an entire floor or any portion of a floor having an area of ten thousand (10,000) rentable square feet or more which is above the ground floor of the Building (other than any floor of the Building demised to Tenant on the date hereof) (a "Floor Additional Space") or (ii) any portion of the second floor of the Building, if the Second Floor Premises shall then comprise a portion of the Premises (other than any space on the second floor of the Building demised to Tenant on the date hereof (a "Second Floor Additional Space"; any Floor Additional Space or Second Floor Additional Space is hereinafter referred to as "Additional Space"), shall become vacant and available for occupancy, then, provided that MONY is the Tenant hereunder and no Event of Default has occurred and is continuing, Landlord, prior to offering to lease such space to any Person, shall deliver a notice to MONY stating that Landlord is prepared to enter into a lease for such Additional Space (the "Additional Lease") with Tenant, which notice (the "Additional Lease Proposal") shall specify with respect to such Additional Space (a) the Space Factor for the Additional Space, (b) any "free rent" period to be 98 99 included in the Additional Lease, (c) the work which Landlord will perform, if any, to prepare such Additional Space for Tenant's initial occupancy, (d) the amount of money, if any, which Landlord will provide to Tenant in connection with the performance by Tenant of any such work, (e) the anticipated commencement date of the tern, of the Additional Lease, (f) the fact that Tenant shall have no right to assign the Additional Lease, in whole or in part, or sublease all or any portion of the Additional Lease, and (g) any other applicable terms and conditions not otherwise provided for in this Article 40.

Additional Space. Section 40.1 (A) Subject to the provisions of Section 40.5 hereof, if at any time during the Term (i) an entire floor or any portion of Tenant currently subleases from The ▇▇▇▇▇▇▇▇▇ Company Holdings LLC (“▇▇▇▇▇▇▇▇▇”), pursuant to a floor having an area of ten thousand sublease dated December 10, 2010 (10,000) rentable square feet or more which is above the ground floor of the Building (other than any floor of the Building demised to Tenant on the date hereof) (“▇▇▇▇▇▇▇▇▇ Sublease”), a "Floor Additional Space") or (ii) any portion of the second thirteenth (13th) floor of the Building, if substantially as shown hatched on the Second Floor plan annexed hereto as Exhibit A (“Additional Space A”), for a term expiring on February 23, 2013. Landlord hereby consents to the extension of the term of the ▇▇▇▇▇▇▇▇▇ Sublease through and including February 28, 2013 (the “Sublease Expiration Date”) and agrees that neither ▇▇▇▇▇▇▇▇▇ nor Tenant shall have any obligation to restore any Alterations currently existing in Additional Space A or to vacate and surrender Additional Space A to Landlord on the Sublease Expiration Date. (ii) In the event that the direct lease between Landlord and ▇▇▇▇▇▇▇▇▇ for premises including Additional Space A (the “▇▇▇▇▇▇▇▇▇ Lease”) shall be terminated, Landlord shall give notice to Tenant of such termination and, from the effective date of such termination through and including the Sublease Expiration Date, (x) Landlord shall recognize Tenant as its direct tenant in Additional Space A and (y) Tenant shall attorn to Landlord with respect to such space, pursuant to the then executory provisions of the ▇▇▇▇▇▇▇▇▇ Sublease, except that Landlord shall not be (A) liable for any previous act or omission of ▇▇▇▇▇▇▇▇▇ under the ▇▇▇▇▇▇▇▇▇ Sublease, (B) subject to any credit, offset, claim, counterclaim, demand or defense which may have accrued to Tenant or which Tenant may have against ▇▇▇▇▇▇▇▇▇ thereunder, (C) bound by any modification to the ▇▇▇▇▇▇▇▇▇ Sublease not consented to in writing by Landlord, (D) bound by any prepayment of rent under the ▇▇▇▇▇▇▇▇▇ Sublease for more than one month in advance, (E) required to account for or return any security deposit of Tenant under the ▇▇▇▇▇▇▇▇▇ Sublease (unless the same is actually delivered by ▇▇▇▇▇▇▇▇▇ to Landlord and Tenant would be entitled to the return thereof pursuant to the terms of the ▇▇▇▇▇▇▇▇▇ Sublease and the consent thereto executed by Landlord, ▇▇▇▇▇▇▇▇▇, and Tenant), and/or (F) bound by any obligation of ▇▇▇▇▇▇▇▇▇ to make any payment to Tenant or perform any work in Additional Space A. If Tenant shall attorn to Landlord pursuant to this Section 4(a)(ii), then for the balance of the term of the ▇▇▇▇▇▇▇▇▇ Sublease, (I) any default by Tenant thereunder shall be a default under the Lease (as amended by this Agreement), and (II) the Security Deposit held pursuant to the terms of the Lease (as amended by this Agreement) may be applied to cure a default by Tenant under the ▇▇▇▇▇▇▇▇▇ Sublease. (iii) Commencing on March 1, 2013 (“Commencement Date A”), Additional Space A shall be added to and shall be considered a part of the Premises shall then comprise demised under the Lease, upon the terms and conditions set forth in the Lease (except as otherwise expressly provided in this Agreement). (i) Landlord and Tenant acknowledge that BuyWithMe, Inc. (“BuyWithMe”) currently subleases from ▇▇▇▇▇▇▇▇▇ a portion of the Premises thirteenth (other than any space on the second 13th) floor of the Building Building, substantially as shown hatched on the plan annexed hereto as Exhibit B (“Additional Space B”). (ii) Commencing on the earlier to occur of (x) March 1, 2013 and (y) the date on which the ▇▇▇▇▇▇▇▇▇ Lease shall be terminated due to ▇▇▇▇▇▇▇▇▇’▇ default thereunder (such earlier date, “Commencement Date B”), Additional Space B shall be added to and shall be considered a part of the Premises demised under the Lease, upon the terms and conditions set forth in the Lease (except as otherwise expressly provided in this Agreement). (iii) If Landlord shall be unable to deliver possession of Additional Space B on any date set forth in Section 4(b)(ii) hereof for any reason whatsoever, Landlord shall not be subject to any liability therefor and the validity of the lease of Additional Space B shall not be impaired thereby nor the Expiration Date extended, but Commencement Date B shall be postponed until Additional Space B are available for occupancy by Tenant. Tenant expressly waives any right to rescind its lease of Additional Space B under Section 223-a of the New York Real Property Law or under any present or future statute of similar import then in force and further expressly waives the right to recover any damages that may result from Landlord’s failure to deliver possession of Additional Space B on any particular date. Tenant agrees that the provisions of this Section 4(b)(iii) are intended to constitute “an express provision to the contrary” within the meaning of said Section 223-a. Notwithstanding the foregoing, Landlord shall use commercially reasonable efforts (which shall not include an obligation to commence eviction proceedings against ▇▇▇▇▇▇▇▇▇ or BuyWithMe) to deliver Additional Space B to Tenant on or about the date intended as Commencement Date B as set forth in Section 4(b)(ii) hereof (a "Second Floor Additional Space"; any Floor the “Additional Space or Second Floor B Target Date”), and in the event that (x) ▇▇▇▇▇▇▇▇▇ and/or BuyWithMe shall hold over in the Additional Space is hereinafter referred B for more than thirty (30) days after the Additional Space B Target Date, and (y) Landlord shall actually collect holdover rental attributable to as "Additional Space"Space B from ▇▇▇▇▇▇▇▇▇ and/or BuyWithMe for the period commencing on the 31st day after the Additional Space B Target Date (such date, the “Extended Space B Holdover Date”), shall become vacant which holdover rental is in excess of the fixed rent and available for occupancyadditional rent at the rate payable by ▇▇▇▇▇▇▇▇▇ prior to the expiration of the term of the ▇▇▇▇▇▇▇▇▇ Lease (such excess, the “Space B Holdover Premium”), then, as Tenant’s sole and exclusive remedy for such delay in the occurrence of Commencement Date B, Tenant shall be entitled to a credit against the Fixed Rent payable by Tenant for Additional Space B equal to 50% of the Space B Holdover Premium actually paid to Landlord from and after the Extended Space B Holdover Date, provided further that MONY is Landlord shall have no liability to Tenant for any failure to collect the Space B Holdover Premium. (i) Landlord and Tenant hereunder and no Event of Default has occurred and is continuing, acknowledge that Dratfield Analytics Inc. (“DAI”) currently leases from Landlord, pursuant to a direct lease (the “DAI Lease”), a portion of the sixteenth (16th) floor of the Building, substantially as shown hatched on the plan annexed hereto as Exhibit C (“Additional Space C”; Additional Space C, together with Additional Space A and Additional Space B, collectively, the “Additional Space”). (ii) Commencing on the earlier to occur of (x) February 1, 2015 and (y) the date on which the DAI Lease shall be terminated due to DAI’s default thereunder (such earlier date, “Commencement Date C”), Additional Space C shall be added to and shall be considered a part of the Premises demised under the Lease, upon the terms and conditions set forth in the Lease (except as otherwise expressly provided in this Agreement). From and after Commencement Date C, Tenant shall be a full floor Tenant on the sixteenth floor of the Building, substantially as shown hatched on the plan annexed hereto as Exhibit C-1. (iii) If Landlord shall be unable to deliver possession of Additional Space C on any date set forth in Section 4(c)(ii) hereof for any reason whatsoever, Landlord shall not be subject to any liability therefor and the validity of the lease of Additional Space C shall not be impaired thereby nor the Expiration Date extended, but Commencement Date C shall be postponed until Additional Space C is available for occupancy by Tenant. Tenant expressly waives any right to rescind its lease of Additional Space C under Section 223-a of the New York Real Property Law or under any present or future statute of similar import then in force and further expressly waives the right to recover any damages that may result from Landlord’s failure to deliver possession of Additional Space C on any particular date. Tenant agrees that the provisions of this Section 4(c)(iii) are intended to constitute “an express provision to the contrary” within the meaning of said Section 223-a. Notwithstanding the foregoing, Landlord shall use commercially reasonable efforts (which shall not include an obligation to commence eviction proceedings against DAI) to deliver Additional Space C to Tenant on or about the date intended as Commencement Date C as set forth in Section 4(c)(ii) hereof (the “Additional Space C Target Date”), and in the event that (x) DAI shall hold over in Additional Space C for more than thirty (30) days after the Additional Space C Target Date, and (y) Landlord shall actually collect holdover rental attributable to Additional Space C from DAI for the period commencing on the 31st day after the Additional Space C Target Date (such date, the “Extended Space C Holdover Date”), which holdover rental is in excess of the fixed rent and additional rent at the rate payable by DAI prior to offering the expiration of the term of the DAI Lease (such excess, the “Space C Holdover Premium”), then, as Tenant’s sole and exclusive remedy for such delay in the occurrence of Commencement Date C, Tenant shall be entitled to lease such space a credit against the Fixed Rent payable by Tenant for Additional Premises C equal to any Person50% of the Space C Holdover Premium actually paid to Landlord from and after the Extended Space C Holdover Date, shall deliver a notice to MONY stating provided further that Landlord is prepared shall have no liability to enter into a Tenant for any failure to collect the Space C Holdover Premium. (d) Tenant shall lease for such each portion of the Additional Space in its “as is” condition as of the applicable commencement date as set forth in this Section 4, it being understood and agreed that (the "Additional Lease"i) with Tenant, which notice (the "Additional Lease Proposal") shall specify Landlord makes no representations or warranties with respect to such Additional Space (a) the Space Factor for the Additional Space, ; (bii) in no event shall Landlord be obligated to ▇▇▇▇▇ any "free rent" period to be 98 99 included Hazardous Materials existing in the Additional LeaseSpace unless Landlord introduces such Hazardous Materials into the Additional Space after the date of this Agreement; and (iii) except as otherwise expressly provided in Section 10 hereof, (c) the Landlord shall not be obligated to perform any work which Landlord will perform, if any, to prepare such the Additional Space for Tenant's initial ’s occupancy, (d) the amount of money, if any, which Landlord will provide to Tenant in connection with the performance by Tenant of any such work, (e) the anticipated commencement date of the tern, of the Additional Lease, (f) the fact that Tenant shall have no right to assign the Additional Lease, in whole or in part, or sublease all or any portion of the Additional Lease, and (g) any other applicable terms and conditions not otherwise provided for in this Article 40.