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Exhibit 10.4
EXECUTION VERSION
SUBLEASE (this "Sublease"), dated as of March 1, 2000, by and between THE
NPD GROUP, INC, a corporation organized and existing pursuant to the laws of the
State of New York, having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ("Sublandlord"), and MEDIA METRIX, INC., a corporation organized and
existing pursuant to the laws of the State of Delaware, having an address at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Subtenant").
W I T N E S S E T H:
WHEREAS, pursuant to an Agreement Lease ("Original Lease") by and between
352 P.A.S. ASSOCIATES ("Landlord"), as landlord, and Sublandlord, as tenant,
dated as of March 1, 2000 (the Original Lease, as the same may hereafter be
amended, the "Master Lease"), Landlord did demise and let unto Sublandlord, and
Sublandlord did hire and take from Landlord, the entire 6th floor, as more
particularly identified in the Master Lease (the "Premises"), in a building
known as and by the street address of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
(the "Building"); and
WHEREAS, Subtenant acknowledges and represents that it has received and
reviewed the Master Lease, a copy of which is attached hereto as Exhibit A and
that it is familiar with all the terms and conditions thereof; and
WHEREAS, Sublandlord wishes to sublet to Subtenant, and Subtenant desires
to hire and rent from Sublandlord the entire Premises, and Subtenant is desirous
of hiring and taking the Premises from Sublandlord, upon the terms, covenants
and conditions hereinafter set forth.
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NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Sublandlord and Subtenant hereby
agree as follows:
1. TERM. Sublandlord hereby subleases to Subtenant, and Subtenant hereby
hires from Sublandlord, the Premises for the purposes set forth in Article 2 of
the Master Lease for a term commencing on the "Commencement Date" as defined in
the Master Lease ("Commencement Date"), and ending, unless sooner terminated
pursuant to any of the provisions of the Master Lease, this Sublease or pursuant
to applicable law, on the day prior to the Expiration Date, as defined in the
Master Lease, at 5:00 p.m., ("Expiration Date"), upon the terms and conditions
set forth in this Sublease. If for any reason the term of the Master Lease is
terminated prior to the Expiration Date, this Sublease shall thereupon be
terminated automatically, and Sublandlord shall not be liable to Subtenant by
reason thereof unless said termination shall have been effected solely because
of, or shall have resulted solely from, the breach or default of Sublandlord
under the Master Lease with respect to an obligation not assumed by Subtenant
under this Sublease. In the event of a termination of the Master Lease for any
reason other than a default by Subtenant under this Sublease, the Rent
(hereinafter defined) for the month in which such termination occurs shall be
pro-rated based on the actual number of days in such month.
2. BASE RENT. Subtenant shall pay to Sublandlord as and for a monthly base
rent ("Base Rent") for the Premises the amount of one hundred percent (100%) of
the Fixed Rent (as defined in the Master Lease) as set forth on Schedule A of
the Master Lease, payable in advance and without notice or demand, commencing on
the Commencement Date and at least five (5) days prior to the first day of each
month during the term of this Sublease, except that Subtenant shall pay
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to Sublandlord the first full monthly installment with Subtenant's execution and
return of this Sublease.
3. ADDITIONAL RENT.
(a) In addition to the Base Rent set forth above, commencing on the
Commencement Date, Subtenant shall pay to Sublandlord as additional rent
("Additional Rent"), the following:
(i) to the extent not included in the Fixed Rent (as defined
in the Master Lease), additional rent equal to 100% of the amount payable
by Sublandlord, if any, pursuant to the Master Lease for electricity,
provided however, that if, pursuant to Article 46 of the Master Lease,
Subtenant shall install any extraordinary power equipment (i.e., equipment
not generally used in connection with office use) in the Premises (but
such installation shall be in accordance with the terms of the Master
Lease and this Sublease), in addition to any costs for electricity
specified above, Subtenant shall pay the entire cost of electricity, and
for any necessary additional electric capacity, for such equipment at the
rates and in the manner as specified in the Master Lease;
(ii) additional rent equal to 100% of the amount payable by
Sublandlord, if any, pursuant to Article 39 of the Master Lease;
(iii) additional rent equal to 100% of the amount payable by
Sublandlord pursuant to Article 40 of the Master Lease;
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(iv) 100% of any and all additional rent payable by
Sublandlord under any other provisions of the Master Lease, other than
payments made by Subtenant pursuant to subparagraphs (i), (ii) and (iii)
of this paragraph 3:
(v) the cost of any additional services or materials requested
of Landlord by or at the request of Subtenant; and
(vi) any other amounts payable by Subtenant pursuant to the
provisions of this Sublease.
(b) The aforesaid Additional Rent shall be payable by Subtenant to
Sublandlord not later than five (5) days prior to the corresponding due date for
such payment to be made to Landlord pursuant to the Master Lease and after
presentation by Sublandlord to Subtenant of the bills therefor (which bills
shall include a copy of the ▇▇▇▇ or invoice issued by Landlord to the extent
received by Sublandlord), whether issued during or after the term of this
Sublease. This paragraph 3 shall survive the expiration or termination of this
Sublease.
(c) Base Rent and Additional Rent is referred to in this Sublease
collectively as "Rent". Notwithstanding anything in this Sublease to the
contrary, provided that Sublandlord is entitled to any abatement of (or credit
against) Fixed Rent (as defined in the Master Lease), or any other amounts due
under the Master Lease (including, without limitation, the abatement referred to
in Article 37 (b) of the Master Lease), Subtenant shall be entitled to a
corresponding abatement of Base Rent under this Sublease.
4. DEFAULT IN PAYMENT OF RENT. If Subtenant shall fail to pay when due any
installment of Rent for a period of ten (10) days after the date due, Subtenant
shall pay interest thereon at the rate ("Default Rate") per annum equal to the
lesser of (i) the "Prime Rate", as
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published from time to time in the "Money Rates Section" of The Wall Street
Journal, plus five percent (5%), or (ii) the maximum interest rate permitted by
applicable law, from the date on which such installment or payment originally
was due (irrespective of the ten (10) day grace period) to the date of
Sublandlord's receipt of payment thereof (compounded monthly), and such interest
shall be deemed to be Additional Rent. Subtenant's payment of such interest
shall not be deemed a cure of the default in the payment of Rent and shall be
collectible in addition to all of Sublandlord's other rights and remedies in the
event of Subtenant's default in the payment of Rent.
5. PAYMENT OF RENT. All Rent shall be paid to Sublandlord, or as
Sublandlord may direct by written notice to Subtenant, in lawful money of the
United States of America which shall be legal tender for payment of all debts
and dues, public and private, at the time of payment, at the principal office of
Sublandlord, or such other place as Sublandlord may by notice designate, without
any abatement, deduction, set-off or counterclaim whatsoever. Sublandlord shall
have the same remedies for default in the payment of Additional Rent as for
default in the payment of Base Rent.
6. CONDITION OF PREMISES.
(a) The Premises are hereby sublet and shall be delivered to
Subtenant "as-is" on the date hereof. The execution and delivery of this
Sublease by Subtenant shall be conclusive evidence of delivery of the Premises
in compliance with the provisions of this Sublease.
(b) Neither Sublandlord nor Sublandlord's agents or representatives
have made any representations, warranties or promises with respect to the
condition, quality, permitted use, restrictions, value or adequacy of the
Premises and no rights, easements or licenses are granted
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by Sublandlord or acquired by Subtenant, by implication or otherwise, except as
expressly set forth in this Sublease.
7. RIGHTS OF SUBTENANT. Subtenant shall be entitled to the benefit of all
of the obligations of Landlord pursuant to the Master Lease with respect to the
Building and the Premises including but not limited to Landlord's obligations to
repair and restore and provide or render work and services, and Subtenant
acknowledges and agrees that such obligations are and shall be the
responsibility of Landlord and not those of Sublandlord. In the event Landlord
shall fail or refuse to comply with any of the terms of the Master Lease
affecting the Premises or the use or occupancy thereof by Subtenant or anyone
claiming by, under or through Subtenant, or if Landlord shall fail to issue any
consent pursuant to the Master Lease which Subtenant reasonably believes
Landlord is required to issue under the Master Lease, Subtenant shall have the
right, in its own name (and in the name of the Sublandlord, if Subtenant shall
have notified Sublandlord in writing that it intends to use Sublandlord's name
and the purpose therefor and such notice shall reaffirm Subtenant's obligation
to indemnify and hold Sublandlord harmless as set forth in this paragraph with
respect to any such action taken by Sublandlord. Subtenant shall indemnify and
hold Sublandlord harmless from and against any and all damages, losses,
penalties, fines, costs or expenses, including, without limitation, attorneys'
fees and costs, which Sublandlord may incur or be subject to as a result of any
action taken by Subtenant in accordance with this paragraph), and at its own
cost, to compel performance by Landlord pursuant to the terms of the Master
Lease, or to compel Landlord to issue such consent, and, provided Subtenant
indemnifies and holds Sublandlord harmless from any liability, loss, cost or
expense (including, without limitation, reasonable attorneys' fees and costs),
Sublandlord shall, at Subtenant's request and expense, (i) make
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application to Landlord for any consent Subtenant reasonably believes Landlord
is required to issue pursuant to the Master Lease, and/or (ii) enforce the terms
of the Master Lease against Landlord to the extent Landlord is not performing an
obligation under the Master Lease, which performance Subtenant reasonably
believes it is entitled to. Subtenant shall have no claim against Sublandlord by
reason of Landlord's failure or refusal to comply with any of the terms of the
Master Lease and no such failure or refusal shall be deemed a constructive
eviction hereunder, except to the extent that such failure or refusal is a
constructive eviction of Sublandlord, as tenant under the Master Lease. This
Sublease shall remain in full force and effect notwithstanding Landlord's
failure or refusal to comply with any of the terms of the Master Lease, and
Subtenant shall pay the Rent provided in this Sublease without any abatement,
deduction, set-off or counterclaim whatsoever, Subtenant's sole remedy being the
right to enforce the provisions of the Master Lease against Landlord as set
forth above. Subtenant shall look solely to Landlord for the performance of all
services required to be performed by Landlord under the Master Lease, and shall
not under any circumstances seek to require or require Sublandlord to perform
any of such services, nor shall Subtenant make any claim upon Sublandlord for
any damages, costs or expenses which arise by reason of the negligence, whether
by omission or commission, or intentional, willful or tortuous acts of Landlord.
Furthermore, Sublandlord shall have no liability to Subtenant by reason of any
inconvenience, annoyance, interruption or injury to business or operations
arising from Landlord's making any repairs, alterations or changes which
Landlord is required or permitted by the Master Lease, or required by law, to
make in or to any portion of the Building and/or the Premises, or in or to the
fixtures, equipment or appurtenances of the Building and/or the Premises.
Nothing in this paragraph
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gross negligence or willful misconduct.
8. REMEDIES. In addition to such rights and remedies as it may have
pursuant to applicable law, if Subtenant shall default under this Sublease,
Sublandlord shall have against Subtenant all of the rights and remedies granted
to Landlord pursuant to the Master Lease in the event of a default by
Sublandlord, as lessee under the Master Lease. In addition to the other rights
Sublandlord may have under the Master Lease (as incorporated in this Sublease),
this Sublease or pursuant to applicable law, if Subtenant shall fail to timely
perform any of its obligations under this Sublease, beyond the expiration of
applicable notice and cure periods, if any, then Sublandlord shall have the
right, but not the obligation, without notice to Subtenant in a case of
emergency and otherwise after five (5) days notice to Subtenant, without waiving
or releasing Subtenant from any obligations hereunder, to perform any such
obligation of Subtenant in such manner and to such extent as Sublandlord shall
reasonably deem necessary to cure such failure on the part of Subtenant.
Subtenant shall pay to Sublandlord upon demand any and all costs incurred by
Sublandlord in so doing, including, without limitation, attorneys' fees and
costs, together with interest thereon (compounded monthly) at the Default Rate
from the date of demand by Sublandlord therefor until the date Sublandlord is
reimbursed.
9. PROVISIONS OF THE MASTER LEASE.
(a) Except as otherwise provided in this Sublease, this Sublease is
in all respects subject to the terms and conditions of the Master Lease. Except
as otherwise provided in this Sublease, the terms, provisions, covenants,
stipulations, conditions, rights, obligations, remedies and agreements contained
in the Master Lease are incorporated in this Sublease by reference and are
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made a part hereof as if herein set forth at length and each and every
provision, term, condition and covenant of the Master Lease binding upon or
inuring to the benefit of Landlord thereunder shall, in respect of this
Sublease, bind or inure to the benefit of Sublandlord against Subtenant, and
each provision of the Master Lease binding upon or inuring to the benefit of
Sublandlord, as tenant thereunder shall, in respect of this Sublease, bind or
inure to the benefit of Subtenant against Sublandlord, with the same force and
effect as though those provisions were completely set forth in this document.
For the purpose of incorporation by reference of provisions of the Master Lease
into this Sublease, the words "Lessor" or "Landlord" or "Owner" (whether or not
capitalized) wherever used in the Master Lease, shall be construed to mean
"Sublandlord" and the words "Lessee" or "Tenant" (whether or not capitalized)
wherever used in the Master Lease shall be construed to mean "Subtenant", and
the words "Premises" or "Demised Premises" (whether or not capitalized), or
words of similar import, wherever used in the Master Lease, shall be construed
to mean "Premises" as defined in this Sublease, the words "Agreement", "lease",
"Lease", or words of similar import, wherever they appear in the Master Lease,
shall be construed to mean this Sublease, the word "rent" and words of similar
import, wherever used in the Master Lease, shall be construed to mean the Rent
payable under this Sublease, and the words "term", "Commencement Date" and
"Expiration Date", or words of similar import, wherever used in the Master
Lease, shall be construed to mean, respectively, the term of this Sublease and
the dates set for the beginning and the end of the term of this Sublease. To the
maximum extent possible, the provisions of the Master Lease incorporated by
reference into this Sublease shall be construed as consistent with and
complementary to the other provisions of this Sublease, but in the event of any
inconsistency, those provisions of this Sublease not incorporated by reference
from the Master Lease shall control. Except as expressly provided
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otherwise in paragraph 10(c) of this Sublease, Subtenant covenants and agrees to
perform and observe and to be bound by, all terms, covenants, obligations and
conditions of the Master Lease and the use thereof except, however, that
Subtenant shall not be obligated to pay the Fixed Rent (as defined in the Master
Lease) or additional rent reserved under the Master Lease (except as set forth
in paragraph 3 of this Sublease). Subtenant covenants and agrees not to do or
commit or suffer to be done or committed or fail to do any acts or things, or
create or suffer to be created, any conditions that might create or result in a
default or breach on the part of Sublandlord under any of the terms, covenants
or conditions of the Master Lease or render Sublandlord liable for any charge,
cost or expense thereunder.
(b) In order to facilitate the coordination of the provisions of
this Sublease with those of the Master Lease, the time periods contained in the
provisions of the Master Lease that are incorporated by reference into this
Sublease and for which the same action must be taken under both the Master Lease
and this Sublease (such as, for example and without limitation, the time period
for the curing of a default under this Sublease that is also a default under the
Master Lease, or for the response to a request by Subtenant which also requires
Landlord's consent), are changed for the purpose of incorporation by reference
by shortening or lengthening, as appropriate, that period in each instance by
five (5) days such that in each instance Subtenant shall have that much less
time to observe or perform hereunder than Sublandlord has as the tenant under
the Master Lease and Sublandlord shall have that much more time to observe,
perform, consent, approve, or otherwise act hereunder than Landlord has under
the Master Lease.
(c) Notwithstanding anything in this Sublease to the contrary, for
purposes of incorporation by reference into this Sublease, the following
provisions of the Master
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Lease are deemed deleted from the Master Lease and are expressly not
incorporated into this Sublease, except as otherwise provided below in this
subsection (c):
Article 28; for purposes of Articles 29, 46, 47, 60 and 62 (which
provisions are not deemed deleted from the Master Lease and which
are incorporated into this Sublease, as said Articles are hereafter
modified), the term "Owner" shall be deemed to mean Landlord; second
sentence of Article 35 is hereby modified to provide that any such
request by Subtenant shall be for a legitimate business purpose,
reasonably demonstrated, and Subtenant shall not make such request
more than twice in any one calendar year; the final two (2)
sentences of Article 9 (added by insert 9.2); Sub -Article 37(a);
Sub-Article 42(d); Sub-Article 44(c), as the same may apply to
Sublandlord; Article 50; Article 53; Article 61.
(d) In the event of termination, re-entry or dispossess by Landlord
of Sublandlord as tenant under the Master Lease, Landlord may, at its option,
take over all of the right, title and interest of Sublandlord under this
Sublease and Subtenant shall, at Landlord's option, attorn to Landlord pursuant
to the then executory provisions of this Sublease, except that Landlord shall
not (a) be liable for any previous act or omission of Sublandlord under this
Sublease, (b) be subject to any offset, not expressly provided in this Sublease,
which theretofore accrued to Subtenant against Sublandlord, or (c) be bound by
any previous modification of this Sublease (unless Landlord consents thereto) or
by any previous prepayment of more than one month's rent.
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10. WAIVER OF SUBROGATION. Subtenant, on behalf of itself and anyone
claiming through Subtenant by way of subrogation or otherwise, hereby releases
and waives all right of recovery against Sublandlord, Landlord and Sublandlord's
and Landlord's respective insurers. Similarly, in the event of any loss or
damage to the Premises resulting from fire or other casualty, Sublandlord agrees
to look first to any insurance it may carry to cover any losses to property
sustained by Sublandlord as a result of such fire or other casualty, and
Sublandlord on behalf of itself and its insurer(s), hereby releases and waives
all right of recovery against Subtenant, said release and waiver to be in force
only if Sublandlord's insurance policy contains a clause providing that such
release or waiver shall not invalidate the insurance and only if such a waiver
can be obtained without additional premium.
11. CASUALTY. If the Master Lease is terminated with respect to the
Premises, or any part thereof, as a result of fire or other casualty, this
Sublease shall automatically terminate at the same time with respect to such
portion. Sublandlord shall notify Subtenant of any such termination of the
Master Lease promptly after receipt of notice thereof from Landlord. In the
event the Premises are damaged or destroyed by fire or other casualty and the
Master Lease shall not be terminated, this Sublease shall continue in full force
and effect without abatement or diminution of the Rent. If the Master Lease is
terminated with respect to only a portion of the Premises, this Sublease shall
continue in full force and effect with respect to the balance of the Premises,
but the Rent shall be equitably pro-rated from and after the date of such
termination based on the portion of the Premises with respect to which this
Sublease was terminated.
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12. INSURANCE. (a) Subtenant shall, at its expense, obtain and keep in
force and effect during the term of this Sublease such insurance as is required
to be carried by Sublandlord as lessee under the Master Lease.
(b) On or prior to the Commencement Date, Subtenant shall deliver to
Sublandlord appropriate certificates of insurance, including evidence of waivers
of subrogation required pursuant to paragraph 10 of this Sublease and covering
Subtenant's contractual indemnity pursuant to paragraph 14 of this Sublease,
required to be carried by Subtenant pursuant to this paragraph 12. Evidence of
each renewal or replacement of a policy shall be delivered to Sublandlord at
least twenty (20) days prior to the expiration of such policy.
(c) Subtenant acknowledges that Sublandlord shall not carry
insurance on, and shall not be responsible for damage to, Subtenant's property
or the Improvements (hereinafter defined) or any leasehold improvements existing
in the Premises as of the date of this Sublease, and that Sublandlord shall not
carry insurance against, or be responsible for any loss suffered by Subtenant
due to, interruption of Subtenant's business.
13. EMINENT DOMAIN. If the Master Lease is terminated with respect to the
Premises, or any part thereof, as a result of condemnation, eminent domain or
other similar taking, this Sublease shall automatically terminate at the same
time, otherwise to remain in full force and effect.
14. INDEMNITY. In addition to any indemnification provisions incorporated
herein from the Master Lease, Subtenant shall indemnify Landlord and
Sublandlord, and Landlord's and Sublandlord's respective members, directors,
officers, shareholders, employees, agents, lenders and managing agents
("Sublandlord Indemnified Parties") against, and hold the Sublandlord
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Indemnified Parties harmless from, all claims, damages, losses, liabilities,
costs and expenses (including attorneys' fees and disbursements and court costs)
which Sublandlord may incur, pay or be subject to by reason of (i) the
non-performance or non-observance by Subtenant of the terms, covenants,
obligations and conditions of this Sublease or the Master Lease (as applicable
to Subtenant); (ii) any work done or improvements made in or to the Premises by
or on behalf of Subtenant, and (iii) any tortious act or negligence on the part
of Subtenant, its agents, contractors, servants, employees, invitees or
licensees, and any claims made or damages suffered or incurred as a result of
Subtenant's or its agents, contractors, servants, employees, invitees or
licensees, occupancy of the Premises and/or the Building.
15. REIMBURSEMENT OF SUBLANDLORD/CONTEST BY SUBTENANT. If Sublandlord is
requested by Landlord to reimburse Landlord for expenditures made by Landlord
because of a breach of any of the obligations of Sublandlord under the Master
Lease which are the obligation of Subtenant to perform pursuant to the terms of
this Sublease, Sublandlord shall promptly notify Subtenant of such demand, and
Subtenant shall thereafter have five (5) days less than the number of days which
Sublandlord has to remit payment to Landlord for such expenditure, to contest
such payment as hereinafter provided. Provided Subtenant may contest such
payment without such contest constituting a breach of the Master Lease and
without exposing Sublandlord to liability, prosecution or penalty, Subtenant may
proceed to contest such expenditure at its own cost and expense. If Subtenant is
unable to contest such expense without same constituting a default under the
Master Lease and without exposing Sublandlord to liability, prosecution or
penalty, Subtenant shall immediately pay to Sublandlord all amounts demanded by
Landlord, but in such event, Subtenant shall be entitled to exercise whatever
rights Sublandlord may have against Landlord
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relating to such charges, in accordance with applicable law, provided, however,
that Subtenant indemnifies, defends and holds Sublandlord harmless from and
against any and all claims, losses, liabilities, costs and expenses (including
reasonable attorneys' fees and disbursements) which Sublandlord may incur as a
result thereof.
16. BROKER. Subtenant and Sublandlord hereby represent and warrant to each
other that neither has dealt with any broker or real estate agent in connection
with this Sublease. Subtenant and Sublandlord hereby agree to indemnify, defend
and hold the other harmless from and against any and all claims, losses,
liabilities, costs and expenses (including reasonable attorneys' fees and
disbursements), resulting from any claims that may be made against the other by
any brokers, agents or persons claiming a commission, fee or other compensation
by reason of this Sublease, if the same shall arise or result or claim to arise
or result by, through or on account of any act of the Subtenant or Sublandlord,
as the case may be.
17. SUBORDINATION. This Sublease is subject and subordinate to the Master
Lease as well as to all of the instruments and matters to which the Master Lease
is subordinate.
18. NOTICES. Any notice or other communication by either party to the
other relating to this Sublease (other than a ▇▇▇▇ or statement for Rent due
sent by Sublandlord, provided that this provision shall not be deemed to require
Sublandlord to send any ▇▇▇▇ or statement of Rent due) shall be in writing and
shall be deemed to have been duly given upon receipt when delivered to the
recipient party in person (against signed receipt) or three (3) days after being
mailed by United States Registered or Certified Mail, return receipt requested,
postage prepaid, and addressed: (a) if to Sublandlord, at the address
hereinabove set forth, Attention: ▇▇▇▇▇ ▇▇▇▇, with a copy sent in the same
manner to Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇,
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., and (b) if to Subtenant, at the address
hereinabove set forth, with a copy sent in the same manner to Fried, Frank,
Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. Either party may by notice to the other party
designate a different address within the United Stated to which notices shall be
sent.
19. ASSIGNMENT AND SUBLETTING. Subtenant expressly covenants and agrees
that it shall not assign, mortgage, pledge or encumber this Sublease nor sublet
the Premises or any part thereof, nor suffer or permit the Premises or any part
thereof to be used or occupied by others, except strictly in accordance with
Articles 11 and 43 of the Master Lease, and, in addition, in any instance under
the Master Lease where Landlord's consent is required, Sublandlord's consent
shall also be required, but Sublandlord covenants and agrees not to unreasonably
withhold or delay its consent in such instance if Landlord has consented
thereto, provided, however, if Sublandlord shall not grant or deny its consent
(which denial shall be accompanied by a reasonably detailed statement setting
forth the reasons for such denial) on or prior to the date Landlord issues its
consent (provided that to the extent Subtenant makes such request directly to
Landlord, Subtenant requests such consent from Sublandlord at the time it
requests consent from Landlord and provides Sublandlord with all the information
required under the Master Lease to be provided regarding such sublease),
Sublandlord shall be deemed to have consented thereto. If this Sublease be
assigned, or if the Premises or any part thereof be sublet or occupied by anyone
other than Subtenant, Sublandlord may, after default by Subtenant, collect rent
from the assignee, subtenant or occupant, and apply the net amount collected to
the Rent reserved in this Sublease, but no such assignment, subletting,
occupancy, or collection by Sublandlord shall be deemed a waiver of the covenant
set
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forth above or the acceptance of the assignee, subtenant or occupant as
subtenant or a release of Subtenant from the further performance by Subtenant of
covenants and agreements on the part of Subtenant contained in this Sublease.
20. QUIET ENJOYMENT. Sublandlord covenants that it shall do nothing to
disturb Subtenant's quiet enjoyment of the Premises during the term of this
Sublease if and so long as Subtenant shall observe and perform all of the
covenants, provisions, terms and conditions of this Sublease and the Master
Lease (as applicable to Subtenant).
21. HOLDOVER. Subtenant expressly assumes the obligations of Sublandlord,
including but not limited to the indemnity under the Master Lease (which shall
apply to a holdover by Subtenant only), in the event possession of the Premises
is not surrendered at the Expiration Date or sooner termination of the term of
this Sublease.
22. RESTORATION UPON TERMINATION. Upon the termination of this Sublease,
Subtenant shall remove from the Premises such fixtures, installations, equipment
and alterations made or installed by Subtenant as Sublandlord shall designate.
To the extent Sublandlord shall not require their removal at the termination of
this Sublease, any such fixtures, installations, equipment and alterations shall
become the property of Sublandlord at the termination of this Sublease.
23. SUBTENANT'S IMPROVEMENTS. All Subtenant's improvement work (the
"Improvements") necessary to prepare the Premises for occupancy or otherwise
performed in the Premises shall be undertaken by Subtenant or by contractors
engaged by Subtenant with Landlord's written approval in accordance with the
Master Lease. It is understood that the entire cost of Improvements and all
related costs shall be borne and paid for by Subtenant and that Sublandlord
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shall have no obligation to offer any "construction allowance" or otherwise
make any contribution to the cost of any Improvements or any other costs
incurred in the preparation of the Premises for Subtenant's occupancy, except as
expressly set forth in paragraph 26 of this Sublease. All labor employed by
Subtenant in connection with Improvements shall be harmonious and compatible
with the labor employed by Landlord. Subtenant shall cause all Improvements to
be constructed in a good and ▇▇▇▇▇▇▇ like manner by reputable contractors who
are experienced in undertaking construction projects in first class office
buildings in the New York County, New York area and are otherwise approved by
Landlord in writing. Subtenant shall proceed with reasonable diligence with any
construction begun by Subtenant in accordance with approved plans using new,
first quality materials and construction procedures. Landlord's approval of such
work shall be required if such approval is required pursuant to the Master
Lease, and Sublandlord agrees to submit on behalf of, and at the expense of,
Subtenant, any requests for such consent. Sublandlord covenants and agrees not
to unreasonably withhold or delay its consent to the performance by Tenant of
any Improvements if Landlord has consented thereto, provided, however, if
Sublandlord shall not grant or deny its consent (which denial shall be
accompanied by a reasonably detailed statement setting forth the reasons for
such denial) on or prior to the date Landlord issues its consent (provided that
to the extent Subtenant makes such request directly to Landlord, Subtenant
requests such consent from Sublandlord at the time it requests consent from
Landlord and provides Sublandlord with all the information required under the
Master Lease to be provided regarding such Improvements, such as plans and
specifications, if any), Sublandlord shall be deemed to have consented thereto.
If, in accordance with the Master Lease, Landlord shall require the removal of
such Improvements or any part thereof prior to the expiration of the term of the
Master Lease and the restoration of the Premises
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or any part thereof to the condition existing prior to the installation of such
Improvements, Subtenant shall remove the Improvements (or part thereof) required
by Landlord to be removed and restore the Premises to the condition prior to the
installation of such Improvements in accordance with the Master Lease.
24. CONSTRUCTION INSURANCE. Supplementing the Master Lease, at all times
during the construction of Improvements, Subtenant shall maintain (i) casualty
insurance in builder's risk form, covering Landlord, Sublandlord, Subtenant and
Subtenant's contractors, as their interests may appear, against loss or damage
by fire, vandalism, and malicious mischief and other such risks as are
customarily covered by the so-called "broad form extended coverage endorsement"
upon the Improvements and all materials stored at the Premises and all
materials, equipment, supplies and temporary structures of all kinds incident to
the Premises and upon the builder's machinery, tools and equipment, all on a
completed value basis for the full insurable value at all times, which builder's
risk insurance shall contain an express waiver of any right of subrogation by
the insurer against Sublandlord and Landlord; (ii) statutory workmen's
compensation as required by the State of New York; and (iii) comprehensive
general liability insurance with limits as required by paragraph 12 above. The
policies of insurance shall contain an endorsement whereby cancellation shall
not occur until the insurance company has given to Sublandlord and Landlord at
least thirty (30) days prior written notice by United States Certified Mail,
return receipt requested.
25. COMPLIANCE WITH LAWS. Subtenant shall comply at its expense with the
provisions of Article 6 of the Master Lease which are applicable to Sublandlord,
as tenant under the Master Lease, which provisions are hereby incorporated by
reference herein. Subtenant shall apply for and obtain at its expense all
governmental authorizations required in connection with the
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construction of any Improvements or in connection with any other work in the
Premises, other than pursuant to paragraph 26.
26. SUBLANDLORD'S WORK. Intentionally Omitted.
27. CONSENT OF LANDLORD. This Sublease is subject to the written consent
of Landlord, and notwithstanding the execution of this Sublease by the parties
hereto, the term of this Sublease shall not commence until Landlord consents in
writing thereto in accordance with the terms of the Master Lease.
28. ENTIRE AGREEMENT/MODIFICATIONS TO MASTER LEASE. This Sublease
contains the entire agreement between the parties relating to the subject matter
hereof and supersedes all prior negotiations, conversations, correspondence and
agreements. There are no representations or warranties that are not set forth
herein. No waiver, modification or termination of this Sublease or any portion
thereof shall be valid or effective unless in writing signed by the parties
hereto. Sublandlord shall not amend, modify or otherwise change or voluntarily
terminate or surrender the Master Lease, without in each instance obtaining
Subtenant's prior written consent.
29. SUCCESSORS AND ASSIGNS. The terms, conditions and covenants of this
Sublease shall be binding on and inure to the benefit of Sublandlord and
Subtenant and their respective successors, and except as otherwise provided in
this Sublease, their assigns.
30. NO OFFER TO SUBLEASE. The delivery of drafts of this Sublease to
Subtenant or its counsel shall not be deemed to be an offer to Subtenant to
sublease the Premises, it being expressly understood that this Sublease shall
not be binding upon Sublandlord unless and until it is duly executed by both
Subtenant and Sublandlord and consented to in writing by Landlord.
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31. GOVERNING LAW. This Sublease shall be governed by and construed in
accordance with the laws of the State of New York as if it were a contract
negotiated, entered into and wholly performed within the State of New York.
32. HEADINGS/CONSTRUCTION. The paragraph headings and captions in this
Sublease are for reference only and are not be given any effect whatsoever in
construing the provisions of this Sublease. Subtenant understands, acknowledges
and agrees that (a) this Sublease has been freely negotiated by both parties
hereto with the assistance of competent counsel, and (b) in any controversy,
dispute, contest, proceeding or action over the meaning, interpretation,
validity or enforceability of this Sublease, or any term, provision, agreement
or condition herein, there shall be no inference, presumption or conclusion
drawn whatsoever against either party by virtue of such party having drafted, or
caused to be drafted, this Sublease or any portion hereof, and, to the fullest
extent possible, this Sublease and all of its provisions shall be construed
without regard to any presumption or other rule requiring construction against
the party drafting, or causing to be drafted, this Sublease.
33. SUBTENANT'S AUTHORITY. If Subtenant is a corporation, limited
liability company, partnership or other business entity, each person executing
this Sublease on behalf of Subtenant (or other entity executing this Sublease on
behalf of Subtenant) represents and warrants that Subtenant is duly organized,
incorporated or formed in accordance with of the laws of, or duly qualified and
authorized to do business if a foreign corporation, limited liability company,
partnership or other business entity in, the State of New York (a copy of such
authority to be provided to Sublandlord upon request). In addition, each person
executing this Sublease is an officer, manager, member, general partner or the
substantial equivalent thereof of Subtenant (or other
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entity executing this Sublease on behalf of Subtenant) and that he or she is
duly authorized to execute, acknowledge and deliver this Sublease to Sublandlord
(a copy of a resolution and/or incumbency certificate or other evidence of such
authority reasonably satisfactory to Sublandlord to be provided to Sublandlord
upon request).
34. COUNTERPARTS. This Sublease may be executed in any number of
counterparts, each of which shall be deemed an original and all of which, when
taken together, shall constitute one and the same instrument, binding on the
parties as if all parties had signed one document on the same signature page,
and the signature of any party to any counterpart shall be deemed a signature
to, and may be appended or attached to, any other counterpart by Sublandlord.
35. SECURITY. (a) Subtenant shall, upon its execution and return of this
Sublease to Sublandlord, deposit with Sublandlord as security for the full and
faithful performance and observance by Subtenant of the terms, provisions,
covenants and conditions of this Sublease, and any modifications hereof, the sum
of $130,333.32 in cash ("Security").
(b) Sublandlord may, at its sole option, retain, use or apply the
whole or any part of the Security to the extent required for payment of any of
the following items not paid by Subtenant prior to the due date therefor,
including the expiration of any notice and cure period applicable thereto, if
any:
(1) Base Rent;
(2) Additional Rent;
(3) other sums as to which Subtenant is obligated to pay under
this Sublease;
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(4) sums which Sublandlord may expend or may be required to
expend by reason of Subtenant's default under this Sublease;
(5) loss or damage that Sublandlord may suffer by reason of
Subtenant's default, including, without limitation, any damages incurred
by Sublandlord; and
(6) all costs incurred by Sublandlord in connection with the
cleaning or repair of the Premises.
(c) In no event shall Sublandlord be obligated to apply the
Security, or any portion thereof. Sublandlord's right to bring an action or
special proceeding to recover damages or otherwise to obtain possession of the
Premises before or after any default or termination of this Sublease shall not
be affected by Sublandlord's holding of the Security.
(d) The Security shall not be nor be deemed (1) a limitation on
Sublandlord's damages or other rights and remedies available under this
Sublease, or at law or in equity; (2) a payment of liquidated damages, or (3) an
advance payment of Base Rent or Additional Rent.
(e) If Sublandlord uses, applies or retains all or any portion of
the Security, Subtenant shall restore and replenish the Security to its original
amount within five (5) days after written demand from Sublandlord. In addition,
Sublandlord shall have the right to require Subtenant to deposit an additional
sum with Sublandlord at any time the Base Rent shall increase under this
Sublease such that at all times Sublandlord shall have a Security equal to four
(4) months of the then payable monthly Base Rent.
(f) Sublandlord shall not be required to keep the Security separate
or segregated from its own funds, and may commingle the Security with its own
funds, except as
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required by law. Sublandlord shall have no fiduciary responsibilities or trust
obligations whatsoever with regard to the Security and shall not assume the
duties of a trustee for the Security.
(g) Sublandlord shall not be required to keep or maintain the
Security in an interest bearing account, except as required by law. If
Sublandlord, at its option, elects to keep or maintain the Security in an
interest bearing account, Sublandlord shall be entitled to receive and retain
all interest that accrues thereon, and Sublandlord shall pay all taxes on said
interest.
(h) If Subtenant shall fully and faithfully comply with all of the
terms, provisions, covenants and conditions of this Sublease, and any
modifications hereof, any part of the Security not used, applied or retained by
Sublandlord pursuant to this Sublease shall be returned to Subtenant within
sixty (60) days after Subtenant has discharged all of its then known obligations
under this Sublease, and any modifications hereof, but in no event earlier than
the Expiration Date. In no event shall the release of the Security, or any
portion thereof, by Sublandlord be deemed to release Subtenant from any
liability under this Sublease, or affect Subtenant's indemnification obligations
under this Sublease, which arise, accrue or first become known to Sublandlord
after the release of any remaining Security.
(i) Subtenant shall not, and shall not attempt to, assign, pledge or
otherwise encumber the Security, and Sublandlord and its successors and assigns
shall not be bound by any, or any attempted, assignment, pledge or other
encumbrance.
(j) In the event of a sale, assignment or transfer of Sublandlord's
interest in the Master Lease, Sublandlord shall have the right to transfer the
Security to the purchaser, assignee or transferee, as the case may be, and
Sublandlord shall thereupon automatically be released by Subtenant from all
liability for the return of the Security (unless it is thereafter transferred
back
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to Sublandlord), and Subtenant agrees to look solely to the purchaser, assignee
or transferee for the return of the Security.
(k) The acceptance by Sublandlord of the Security submitted by
Subtenant shall not render this Sublease effective unless and until Sublandlord
shall have executed and returned to Subtenant a fully executed copy of this
Sublease.
(l) For purposes of this Sublease, the phrase "Letter of Credit"
shall mean a clean, unconditional and irrevocable letter of credit which (i) is
issued by a bank or other institution reasonably satisfactory to Sublandlord
having a retail office in New York County, New York at which office the Letter
of Credit may be presented for payment, (ii) is for an amount equal to the
Security, (iii) expires not less than five (5) years from the date of issuance
thereof, (iv) is payable to Sublandlord upon presentation only of a sight draft
and written certification to the issuer of such Letter of Credit stating that
Sublandlord is entitled to draw down such letter of credit in accordance with
the terms of this Sublease, (v) provides that prior to the expiration or
termination thereof, the issuer thereof will provide notice to Sublandlord of
the non-renewal or termination thereof at least sixty (60) days prior to the
expiration or termination thereof, (vi) is freely transferrable by Sublandlord
without cost to Sublandlord, and (vii) is otherwise in form and substance
reasonably satisfactory to Sublandlord.
(m) In lieu of the Security, Subtenant shall have the right to
deposit and maintain with Sublandlord during the entire term of this Sublease a
Letter of Credit in the amount of the Security. If (i) any default beyond
applicable notice and cure periods occurs under this Sublease, or (ii)
Sublandlord transfers its right, title and interest under the Master Lease to a
third party and the issuer of the Letter of Credit does not consent to the
transfer of such Letter of Credit
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to such third party or if Subtenant at its expense, upon request of Sublandlord,
fails or refuses to replace the Letter of Credit delivered to Sublandlord with a
Letter of Credit issued to such third party, or (iii) Sublandlord receives
notice or becomes aware that the issuer of the Letter of Credit does not intend
to renew it prior to the expiration thereof, and Subtenant shall fail to provide
a replacement Letter of Credit no later than thirty (30) days prior to the
expiration of the Letter of Credit then in Sublandlord's possession, then, in
any of such events, Sublandlord may, at its option, draw down the Letter of
Credit then in its possession in full prior to the expiration thereof and the
proceeds thereof shall then be held and maintained by Sublandlord as the
Security. Subtenant shall pay all costs and expenses related to or in any way
arising out of the performance by Subtenant of its obligations under this
paragraph, including, without limitation, the issuance, delivery, replacement,
draw upon, transfer, maintenance or other matters relating to the Letter of
Credit, it being understood that Sublandlord shall incur no cost or expense in
connection therewith.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Sublease on
or as of the day and year first above
THE NPD GROUP, INC., Sublandlord
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Print Name: ▇▇▇▇▇ ▇▇▇▇
Print Title: SR VICE PRESIDENT
MEDIA METRIX, INC., Subtenant
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Print Title: Chief Financial Officer
Exhibits:
--------
A - Copy of Master Lease
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EXHIBIT A
---------
Copy of the Master Lease Attached
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STANDARD FORM OF OFFICE LEASE
The Real Estate Board of New York, Inc.
Agreement of Lease, made as of this 1st day of March 2000, between 352 P.A.S.
ASSOCIATES having an office c/o M.D. Carlisle Construction Corp., ▇▇-▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ party of the first part, hereinafter referred
to as OWNER, and THE NPD GROUP, INC. having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ party of the second part, hereinafter referred to as
TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from Owner the
sixth (6th) Floor substantially as shown on the floor plan annexed hereto as
Exhibit "A" (the "demised premises") in the building known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ (the "Building") in the Borough of Manhattan, City of New York, for the
term of approximately ten (10) Lease Years (as defined in Section 37 herein) and
four (4) months (or until such term shall sooner cease and expire as hereinafter
provided) to commence on the Commencement Date (as defined in Article 37 herein)
and to end on the Expiration Date (as defined in Article 37 herein) both dates
inclusive, at an annual rental rate as set forth in Schedule "A" annexed hereto
(the "Fixed Rent"), plus additional rent consisting of all other sums of money
as shall become due and payable by Tenant to Owner hereunder ("additional rent")
(Fixed Rent and additional rent together may be referred to herein, from time to
time, as "rent"), which Tenant agrees to pay in lawful money of the United
States, which shall be legal tender in payment of all debts and dues, public and
private, at the time of payment, in equal monthly installments in advance on the
first day of each month during said term, at the office of Owner or such other
place as Owner may designate, without any setoff or deduction whatsoever, except
that Tenant shall pay the first one monthly installment(s) on the execution
hereof (unless this lease be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent Occupancy:
1. Tenant shall pay the rent as above and as herematter provided.
2. Tenant shall use and occupy demised premises for administrative and executive
offices [SEE ARTICLE 38] and for no other purpose.
Tenant Alterations:
3. Tenant shall make no changes in or to the demised premises of any nature
without Owner's prior written consent which consent shall not be reasonably
withheld or delayed. Subject to the prior written consent of Owner, and to the
provisions of this article, Tenant, at Tenant's expense, may make alterations,
installments, additions or improvements which are nonstructural and that do not
affect utility services or plumbing and electrical lines, in or to the interior
of the demised premises by using contractors or mechanics first approved in each
instance by Owner. Owner shall not unreasonably withhold or delay its approval
of contractors, mechanics, or subcontractors which Tenant proposes to use for
alterations, installations, additions or improvements, and provided such
contractors, mechanics or subcontractors shall be harmonious and compatible with
the labor employed by Owner in the Building, it being agreed that if in Owner's
reasonable judgment such labor is incompatible Tenant shall forthwith upon
Owner's demand withdraw such labor from the demised premises. Tenant shall,
before making any alterations, additions, installations or improvements, at its
expense, obtain all permits, approvals and certificates required by any
governmental or quasi-governmental bodies and (upon completion) certificates of
final approval thereof and shall deliver promptly duplicates of all such
permits, approvals and certificates to Owner, and Tenant agrees to carry and
will cause Tenant's contractors and sub-contractors to carry such workers'
compensation, general liability, personal and property damage insurance as Owner
may require reasonably. If any mechanic's lien is filed against the demised
premises, or the building of which the same forms a part, for work claimed to
have been done for, or materials furnished to, Tenant, whether or not done
pursuant to this article, the same shall be discharged by Tenant within thirty
days after Tenant receives notice thereof, at Tenant's expense, by payment or
filing the bond required by law. All fixtures and all paneling, permanent
partitions, railings and like installations, installed in the premises at any
time, either by Tenant or by Owner on Tenant's behalf, shall, upon installation,
become the property of Owner and shall remain upon and be surrendered with the
demised premises unless Owner, by notice to Tenant no later than twenty days
prior to the date fixed as the termination of this lease, elects to relinquish
Owner's right thereto and to have them removed by Tenant in which event the same
shall be removed from the premises by Tenant prior to the expiration of the
lease, at Tenant's expense. Notwithstanding the preceding sentence, Tenant shall
not be required to restore the demised premises to its condition prior to any
alterations unless at the time Owner grants its consent to such alterations
Owner advises Tenant in writing that Owner will require Tenant to remove such
alterations at the expiration or earlier termination of this lease. Nothing in
this Article shall be construed to give Owner title to or to prevent Tenant's
removal of trade fixtures, moveable office furniture and equipment, but upon
removal of any such from the premises or upon removal of other installations as
may be required by Owner, Tenant shall immediately and at its expense, repair
and restore the premises to the condition existing prior to installation and
repair any damage to the demised premises or the building due to such removal.
All property permitted or required to be removed, by Tenant at the end of the
term remaining in the premises after Tenant's removal shall be deemed abandoned
and may, at the election of Owner, either be retained as Owner's property or may
be removed from the premises by Owner, at Tenant's expense. [SEE ARTICLE 45]
Maintenance and Repairs:
4. Tenant shall, throughout the term of this lease, take good care of the
demised premises and the fixtures and appurtenances therein. Tenant shall be
responsible for all damage or injury to the demised premises or any other part
of the building and the systems and equipment thereof, whether requiring
structural or nonstructural repairs caused by or resulting from carelessness,
omission, neglect or intentional or unlawful conduct of Tenant, Tenant's
subtenants, agents, employees, invitees or licensees, or which arise out of any
work, labor, service or equipment done for or supplied to Tenant or any
subtenant or arising out of the installation, use or operation of the property
or equipment of Tenant or any subtenant. Tenant shall also repair all damage to
the building and the demised premises caused by the moving of Tenant's fixtures,
furniture and equipment. Tenant shall promptly make, at Tenant's expense, all
repairs in and to the demised premises for which Tenant is responsible, using
only the contractor approved by Owner, such approval not to be unreasonably
withheld or delayed. Any other repairs in or to the building or the facilities
and systems thereof for which Tenant is responsible shall be performed by Owner
at the Tenant's reasonable expense. Owner shall maintain in good working order
and repair the exterior and the structural portions of the building, including
the structural portions of its demised premises, and the public portions of the
building interior and the building plumbing, electrical, heating and ventilating
systems (to the extent such systems presently exist) serving the demised
premises. Tenant agrees to give prompt notice of any defective condition in the
premises for which Owner may be responsible hereunder, upon Tenant becoming
aware thereof. There shall be no allowance to Tenant for diminution of rental
value and no liability on the part of Owner by reason of inconvenience,
annoyance or injury to business arising from Owner or others making repairs,
alterations, additions or improvements in or to any portion of the building or
the demised premises or in and to the fixtures, appurtenances or equipment
thereof, provided Owner uses all reasonable efforts to avoid interference with
Tenant's business during the course of such work. It is specifically agreed that
Tenant shall not be entitled to any setoff or reduction of rent by reason of any
failure of Owner to comply with the covenants of this or any other article of
this lease. Tenant agrees that Tenant's sole remedy at law in such instance will
be by way of an action for damages for breach of contract. The provisions of
this Article 4 shall not apply in the case of fire or other casualty, which are
dealt with in Article 9 hereof. [SEE ARTICLE 54]
Window Cleaning:
5. Tenant will not clean nor require, permit, suffer or allow any window in the
demised premises to be cleaned from the outside in violation of Section 202 of
the Labor Law or any other applicable law or of the Rules of the Board of
Standards and Appeals, or of any other Board or body having or assessing
jurisdiction.
Requirements of Law, Fire Insurance, Floor Loads:
6. Prior to the commencement of the lease term, if Tenant is then in possession,
and at all times thereafter, Tenant, at Tenant's sole cost and expense, shall
promptly comply with all present and future laws, orders and regulations of all
state, federal, municipal and local governments, departments, commissions and
boards and any direction of any public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters, Insurance
Services Office, or any similar body which shall impose any violation, order or
duty upon Owner or Tenant with respect to the demised premises, whether or not
arising out of Tenant's specific use or manner of use thereof (including
Tenant's permitted use) or, with respect to the building if arising out of
Tenant's specific use or manner of use of the premises or the building
(including the use permitted under the lease). Nothing herein shall require
Tenant to make structural repairs or alternations unless Tenant has, by its
manner of use of the demised premises or method of operation therein, violated
any such laws, ordinances, orders, rules, regulations or requirements with
respect thereto. Tenant may, after securing Owner to Owner's satisfaction
against all damages, interest, penalties and expenses, including, but not
limited to, reasonable attorney's fees, by cash deposit or by surety bond in an
amount and in a company satisfactory to Owner, contest and appeal any
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such laws, ordinances, orders, rules, regulations or requirements provided same
is done with all reasonable promptness and provided such appeal shall not
subject Owner to prosecution for a criminal offense or constitute a default
under any lease or mortgage under which Owner may be obligated, or cause the
demised premises or any part thereof to be condemned or vacated. Tenant shall
not do or permit any act or thing to be done in or to the demised premises that
is contrary to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by or for the
benefit of Owner with respect to the demised premises or the building of which
the demised premises form a part, or which shall or might subject Owner to any
liability or responsibility to any person or for property damage. Tenant shall
not keep anything in the demised premises except as now or hereafter permitted
by the Fire Department, Board of Fire Underwriters, Fire Insurance Rating
Organization or other authority having jurisdiction, and then only in such
manner and such quantity so as not to increase the rate for fire insurance
applicable to the building, nor use the premises in a manner that will increase
the insurance rate for the building or any property located therein over that in
effect prior to the commencement of Tenant's occupancy. Tenant shall pay all
costs, expenses, fines, penalties, or damages, which may be imposed upon Owner
by reason of Tenant's failure to comply with the provisions of this article and
if by reason of such failure the fire insurance rate shall, at the beginning of
this lease or at any time thereafter, be higher than it otherwise would be, then
Tenant shall reimburse Owner, as additional rent hereunder, for that portion of
all fire insurance premiums thereafter paid by Owner which shall have been
charged because of such failure by Tenant. In any action or proceeding wherein
Owner and Tenant are parties, a schedule or "makeup" of rate for the building or
demised premises issued by the New York Fire Insurance Exchange, or other body
making fire insurance rates applicable to said premises shall be conclusive
evidence of the facts therein stated and of the several items and charges in the
fire insurance rates then applicable to said premises. Tenant shall not place a
load upon any floor of the demised premises exceeding the floor load per square
foot area that it was designed to carry and that is allowed by law. Owner
reserves the right to prescribe the weight and position of all safes, business
machines and mechanical equipment. Such installations shall be placed and
maintained by Tenant, at Tenant's expense, in settings sufficient, in Owner's
judgement, to absorb and prevent vibration, noise and annoyance. [SEE ARTICLE
41]
Subordination:
7. This lease is subject and subordinate to all ground or underlying leases and
to all mortgages which may now or hereafter affect such leases or the real
property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument or subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall from time to time execute promptly any certificate that Owner may
request. [SEE ARTICLE 42]
Property Loss, Damage Reimbursement Indemnity:
8. Owner or its agents shall not be liable for any damage to property of Tenant
or of others entrusted to employees of the building, nor for loss of or damage
to any property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless caused
by or due to the intentional acts or negligence of Owner, its agents, servants
or employees. Owner or its agents will not be liable for any such damage caused
by other tenants or persons in, upon or about said building or caused by
operations in construction of any private, public or quasi-public work. If at
any time any windows of the demised premises are temporarily closed, darkened or
bricked up (or permanently closed, darkened or bricked up, if required by law)
for any reason whatsoever, including, but not limited to, Owner's own acts for
any reasonable business purpose, Owner shall not be liable for any damage Tenant
may sustain thereby and Tenant shall not be entitled to any compensation
therefor nor abatement or diminution of rent nor shall the same release Tenant
from its obligations hereunder nor constitute an eviction. Tenant shall
indemnify and save harmless Owner against and from all liabilities, obligations,
damages, penalties, claims, costs and expenses for which Owner shall not be
reimbursed by insurance, including reasonable attorney's fees, paid, suffered or
incurred as a result of any breach by Tenant, Tenant's agents, contractors,
employees, invitees, or licensees, of any covenant or condition of this lease,
or the carelessness, negligence, or unlawful or intentional acts conduct of
Tenant, Tenant's agents, contractors, employees, invitees or licensees. Tenant's
liability under this lease extends to the acts and omissions of any subtenant,
and any agent, contractor, employee, invitee or licensee of any subtenant. In
case any action or proceeding is brought against Owner by reason of any such
claim, Tenant, upon written notice from Owner, will, at Tenant's expense, resist
or defend such action or proceeding by counsel approved by Owner in writing,
such approval not to be unreasonably withheld; any counsel appointed by an
insurance carrier providing coverage therefor shall be deemed acceptable to
Owner and Tenant. [SEE ARTICLE 48]
Destruction, Fire and Other Casualty:
9. (a) If the demised premises or any part thereof shall be damaged by fire or
other casualty, Tenant shall give immediate notice thereof to Owner and this
lease shall continue in full force and effect except as hereinafter set forth.
(b) If the demised premises are partially damaged or rendered partially unusable
by fire or other casualty, the damages thereto shall be repaired by and at the
expense of the Owner and the rent and other items of additional rent, until such
repair shall be substantially completed, shall be apportioned from the day
following the casualty according to the part of the premises that is usable. (c)
If the demised premises are totally damaged or rendered wholly unusable by fire
or other casualty, then the rent and other items of additional rent as
hereinafter expressly provided shall be proportionately paid up to the time of
the casualty and thenceforth shall cease until the date when the premises shall
have been repaired and restored by Owner (or sooner reoccupied in part by Tenant
then rent shall be apportioned as provided in subsection (b) above), subject to,
Owner's right to elect not to restore the same as hereinafter provided. (d) If
the demised premises are rendered wholly unusable or (whether or not the demised
premises are damaged in whole or in part) if the building shall be so damaged
that Owner shall decide to demolish it or to rebuild it, then, in any of such
events, Owner may elect to terminate this lease by written notice to Tenant,
given within 90 days after such fire or casualty, or 30 days after adjustment of
the insurance claim for such fire or casualty, whichever is sooner, specifying a
date for the expiration of the lease, which date shall not be more than 60 days
after the giving of such notice, and upon the date specified in such notice the
term of this lease shall expire as fully and completely as if such date were the
date set forth above for the termination of this lease and Tenant shall
forthwith quit, surrender and vacate the premises without prejudice however, to
Landlord's rights and remedies against Tenant under the lease provisions in
effect prior to such termination, and any rent owing shall be paid up to such
date and any payments of rent made by Tenant which were on account of any period
subsequent to such date shall be returned to Tenant. Unless Owner shall serve a
termination notice as provided for herein, Owner shall make the repairs and
restorations under the conditions of (b) and (c) hereof, with all reasonable
expedition, subject to delays due to adjustment of insurance claims, labor
troubles and causes beyond Owner's control. After any such casualty, Tenant
shall cooperate with Owner's restoration by removing from the premises as
promptly as reasonably possible, all of Tenant's salvageable inventory and
moveable equipment, furniture, and other property. Tenant's liability for rent
shall resume five (5) days after written notice from Owner that the premises are
substantially ready for Tenant's occupancy. (e) Nothing contained hereinabove
shall relieve Tenant from liability that may exist as a result of damage from
fire or other casualty. Notwithstanding the foregoing, including Owner's
obligation to restore under subparagraph (b) above, each party shall look first
to any insurance in its favor before making any claim against the other party
for recovery for loss or damage resulting from fire or other casualty, and to
the extent that such insurance is in force and collectible and to the extent
permitted by law, Owner and Tenant each hereby releases and waives all right of
recovery with respect to subparagraphs (c), (d), and (e) above, against the
other or any one claiming through or under each of them by way of subrogation or
otherwise. The release and waiver herein referred to shall be deemed to include
any loss or damage to the demised premises and/or to any personal property,
equipment, trade fixtures, goods and merchandise located therein. The foregoing
release and waiver shall be in force only if both releasors' insurance policies
contain a clause providing that such a release or waiver shall not invalidate
the insurance. If, and to the extent, that such waiver can be obtained only by
the payment of additional premiums, then the party benefitting from the waiver
shall pay such premium within ten days after written demand or shall be deemed
to have agreed that the party obtaining insurance coverage shall be free of any
further obligation under the provisions hereof with respect to waiver of
subrogation. Tenant acknowledges that Owner will not carry insurance on Tenant's
furniture and/or furnishings or any fixtures or equipment, improvements, or
appurtenances removable by Tenant and agrees that Owner will not be obligated to
repair any damages thereto or replace the same. (f) Tenant hereby waives the
provisions of Section 227 of the Real Property Law and agrees that the
provisions of this article shall govern and control in lieu thereof. Owner
represents to Tenant that its has casualty insurance equal to replacement value
of the building in full force and effect, which policy contains a waiver of
subrogation provision inuring to the benefit of Tenant. Owner covenants and
agrees with Tenant to maintain such policy in effect for the term of this lease.
[See Articles 44 and 55]
Eminent Domain:
10. If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi-public use or purpose, then,
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceeding and Tenant shall have no claim for the
value of any unexpired term of said lease and assigns to Owner, Tenant's entire
interest in any such award. Tenant shall have the right to make an independent
claim to the condemning authority for the value of Tenant's moving expenses and
personal property, trade fixtures and equipment, provided Tenant is entitled
pursuant to the terms of the lease to remove such property, trade fixtures and
equipment at the end of the term and provided further such claim does not reduce
Owner's award.
Assignment, Mortgage, Etc.:
11. Tenant, for itself, its heirs, distributees, executors, administrators,
legal representative, successor and assigns, expressly covenants that it shall
not assign, mortgage or encumber this agreement, nor underlet, or suffer or
permit the demised premises or any part thereof to be used by others, without
the prior written consent of Owner in each instance. Transfer of the majority of
the stock of a corporate Tenant or the majority partnership interest of a
partnership Tenant shall be deemed an assignment. If this lease be assigned, or
if the demised premises or any part thereof be underlet or occupied by anybody
other than Tenant, Owner may, after default by Tenant, collect rent from the
assignee, undertenant or occupant, and apply the net amount collected to the
rent herein reserved, but no such assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the
assignee, 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 Owner to an assignment or underletting shall not in
any wise be construed to relieve Tenant from obtaining the express consent in
writing of Owner to any further assignment or underletting. [See Article 43]
Electric Current:
12. Rates and conditions in respect to submetering or rent inclusion, as the
case may be, to be added in ARTICLE 46. Tenant covenants and agrees that at all
times its use of electric current shall not exceed the capacity of existing
feeders to the building or the risers or wiring installations and Tenant may not
use any electrical equipment that in Owner's opinion, reasonably exercised, will
overload such installations or interfere with the use therof by other tenants or
the building. The change at any time of the character of electric service shall
in no wise make Owner liable or responsible to Tenant, for any loss, damages or
expenses that Tenant may sustain. [SEE ARTICLE 46]
Access to Premises:
13. Owner or Owner's agents shall have the right (but shall not be obligated) to
enter the demised premises in an emergency at any time, and, at other reasonable
times upon prior notice (which may be oral), to examine the same and to make
such repairs, replacements and improvements as Owner may deem necessary and
reasonably desirable to the demised premises or to any other portion of the
building or which Owner may elect to perform. During any such entry or access,
Owner shall use all reasonable efforts to avoid interference with Tenant's
business. Tenant shall permit Owner to use and maintain and replace pipes and
conduits in and through the demised premises and to erect new pipes and conduits
therein provided they are concealed within existing walls, floor, or ceiling.
Owner may, during the progress of any work in the demised premises, take all
necessary materials and equipment into said premises without the same
constituting an eviction nor shall Tenant be entitled to any abatement of rent
while such work is in progress nor to any damages by reason of loss or
interruption of business or otherwise; all such work shall be completed by Owner
with all reasonable diligence and Owner shall use its best efforts to avoid
interference with Tenant's business during the performance of such work. Owner
shall insure that all contractor's performing any portion of such work shall be
licensed and carry liability insurance and such other insurance as shall be
required by law. Throughout the term hereof Owner shall have the right to enter
the demised premises upon reasonable prior notice (written or oral), except in
the case of an emergency, in which instance prior notice shall notice shall not
be required at reasonable hours for the purpose of showing the same to
prospective purchasers or mortgagees of the building, and during the last six
months of the term for the purpose of showing the same to prospective tenants.
If Tenant is not present to open and permit an entry into the demised premises,
Owner or Owner's agent may enter the same whenever such entry may be necessary
or permissible by master key or forcibly and provided reasonable care is
exercised to safeguard Tenant's property, such entry shall not render Owner or
its agents liable therefor, not in any event shall the obligations of Tenant
hereunder be affected. If during the
31
last month of the term Tenant shall have removed all or substantially all of
Tenant's property therefrom (for the foregoing purposes, Tenant shall be deemed
to have removed substantially all Tenant's property therefrom if and to the
extent that the only property remaining in the demised premises is property
which Owner might reasonably conclude had been abandoned) Owner may immediately
enter, alter, renovate or redecorate the demised premises without limitation or
abatement of rent, or incurring liability to Tenant for any compensation and
such act shall have no effect on this lease or Tenant's obligations hereunder.
[See Article 57]
14. No vaults, vault space or area, whether or not enclosed or covered, not
within the property line of the building is leased hereunder, anything contained
in or indicated on any sketch, blueprint or plan, or anything contained
elsewhere in this lease to the contrary notwithstanding. Owner makes no
representation as to the location of the property line of the building. All
vaults and vault space and all such areas not within the property line of the
building, which Tenant may be permitted to use and/or occupy, are to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any federal,
state or municipal authority or public utility, Owner shall not be subject to
any liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant.
Occupancy:
15. Tenant will not at any time use or occupy the demised premises in violation
of the certificate of occupancy issued for the building of which the demised
premises are a part. Tenant has inspected the premises and accepts them as is,
subject to the riders annexed hereto with respect to Owner's work, if any. In
any event, Owner makes no representation as to the condition of the premises and
Tenant agrees to accept the same subject to violations, whether or not of
record.
Bankruptcy:
16. (a) Anything elsewhere in this lease to the contrary notwithstanding, this
lease may be canceled by Owner by the sending of a written notice to Tenant
within a reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of any
state naming Tenant as the debtor which is not dismissed within forty-five (45)
days; or (2) the making by Tenant of an assignment or any other arrangement for
the benefit of creditors under any state statute. Neither Tenant nor any person
claiming through or under Tenant, or by reason of any statute or order of court,
shall thereafter be entitled to possession of the demised premises but shall
forthwith quit and surrender the premises. If this lease shall be assigned in
accordance with its terms, the provisions of this Article 16 shall be applicable
only to the party then owning Tenant's interest in this lease.
(b) It is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages an amount equal to the difference between
the rent reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof be re-let by Owner to a third party in an arms-length transaction,
for the unexpired term of said lease, or any part thereof, before presentation
of proof of such liquidated damages to any court, commission or tribunal, the
amount of rent reserved from such re-letting shall be deemed to be the fair and
reasonable rental value for the part or the whole of the premises so re-let
during the term of the re-letting. Nothing herein contained shall limit or
prejudice the right of the Owner to prove for and obtain as liquidated damages
by reason of such termination, an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing the proceedings
in which, such damages are to be proved, whether or not such amount be greater,
equal to, or less than the amount of the difference referred to above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this lease; or
if the demised premises are abandoned; or if any execution or attachment shall
be issued against Tenant or any of Tenant's property whereupon the demised
premises shall be taken or occupied by someone other than Tenant; or if this
lease be rejected under Section 365 of Title 11 of the U.S. Code (bankruptcy
code); or if Tenant shall fail to move into or take possession of the premises
within thirty (30) days after the commencement of the term of this lease, then,
in any one or more of such events, upon Owner serving a written fifteen (15)
days' notice upon Tenant specifying the nature of said default and upon the
expiration of said fifteen (15) days, if Tenant shall have failed to comply with
or remedy such default, or if the said default or omission complained of shall
be of a nature that the same cannot be completely cured or remedied within said
fifteen (15) day period, and if Tenant shall not have diligently commenced
curing such default within such fifteen (15) day period, and shall not
thereafter with reasonable diligence and in good faith, proceed to remedy or
cure such default, then Owner may serve a written five (5) days' notice of
cancellation of this lease upon Tenant, and upon the expiration of said five (5)
days this lease and the term thereunder shall end and expire as fully and
completely as if the expiration of such five (5) day period were the day herein
definitely fixed for the end and expiration of this lease and the term thereof
and Tenant shall then quit and surrender the demised premises to Owner but
Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and
the term shall expire as aforesaid; then Owner may without notice hereunder,
but in accordance with the notice requirements of applicable statutes, reenter
the demised premises either by force or otherwise, and dispossess Tenant by
summary proceedings or otherwise, and the legal representative of Tenant or
other occupant of demised premises and remove their effects and hold the
premises as if this lease had not been made, and Tenant hereby waives the
service of notice of intention to reenter or to institute legal proceedings to
that end. If Tenant shall make default hereunder prior to the date fixed as the
commencement of any renewal or extension of this lease, Owner may cancel and
terminate such renewal or extension agreement by written notice.
Remedies of Owner and Waiver of Redemption:
18. In case of any such default, reentry, expiration and/or dispossess by
summary proceedings or otherwise, (a) the rent shall become due thereupon and be
paid up to the time of such reentry, dispossess and/or expiration, (b) Owner may
re-let the premises or any part or parts thereof, either in the name of Owner or
otherwise, for a term or terms, which may at Owner's opinion be less than or
exceed the period which would otherwise have constituted the balance of the term
of this lease and may grant concessions or free rent or charge a higher rental
than that in this lease, and/or (c) Tenant or the legal representatives of
Tenant shall also pay Owner as liquidated damages for the failure of Tenant to
observe and perform said Tenant's covenants herein contained, any deficiency
between the rent hereby reserved and/or covenanted to be paid and the net
amount, if any, of the rents collected on account of the lease or leases of the
demised premises for each month of the period which would otherwise have
constituted the balance of the term of this lease. The failure of Owner to
re-let the premises or any part or parts thereof shall not release or affect
Tenant's liability for damages. In computing such liquidated damages there shall
be added to the said deficiency such expenses as Owner may incur in connection
with re-letting, such as legal expenses, reasonable attorneys' fees, brokerage,
advertising and for keeping the demised premises in good order or for preparing
the same for re-letting. Any such liquidated damages shall be paid in monthly
installments by Tenant on the rent day specified in this lease and any suit
brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Owner to collect the deficiency for any
subsequent month by a similar proceeding. Owner, in putting the demised premises
in good order or preparing the same for re-rental may, at Owner's option, make
such alterations, repairs, replacements, and/or decorations in the demised
premises as Owner, in Owner's sole judgement, considers advisable and necessary
for the purpose of re-letting the demised premises, and the making of such
alterations, repairs, replacements, and/or decorations shall not operate or be
construed to release Tenant from liability hereunder as aforesaid. Owner shall
in no event be liable in any way whatsoever for failure to re-let the demised
premises, or in the event that the demised premises are re-let, for failure to
collect the rent thereof under such re-letting, and in no event shall Tenant be
entitled to receive any excess, if any, of such net rents collected over the
sums payable by Tenant to Owner hereunder. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof, Owner
shall have the right of injunction and the right to invoke any remedy allowed at
law or in equity as if reentry, summary proceedings and other remedies were not
herein provided for. Mention in this lease of any particular remedy shall not
preclude Owner from any other remedy, in law or in equity. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or dispossessed for
any cause, or in the event of Owner obtaining possession of demised premises, by
reason of the violation by Tenant of any of the covenants and conditions of this
lease, or otherwise.
Fees and Expenses:
19. If Tenant shall default in the observance of performance of any term or
covenant on Tenant's part to be observed or performed under or by virtue of any
of the terms or provisions in any article of this lease, after notice if
required and upon expiration of any applicable grace period, if any (except in
an emergency), then, unless otherwise provided elsewhere in this lease, Owner
may immediately or at any time thereafter and without notice perform the
obligation of Tenant thereunder. If Owner, in connection with the foregoing or
in connection with any default by Tenant in the covenant to pay rent hereunder,
makes any expenditures or incurs any obligations for the payment of money,
including but not limited to reasonable attorneys' fees, in instituting,
prosecuting or defending any action or proceeding, and prevails in any such
action or proceeding then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Owner within ten (10) days of rendition of any ▇▇▇▇
or statement to Tenant therefor. If Tenant's lease term shall have expired at
the time of making of such expenditures or incurring of such obligations, such
sums shall be recoverable by Owner, as damages.
Building Alterations and Management:
20. Owner shall have the right at any time without the same constituting an
eviction and without incurring liability to Tenant therefor to change the
arrangement and/or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building and
to change the name, number or designation by which the building may be known,
provided same does not materially diminish or eliminate Tenant's access to the
demised premises. There shall be no allowance to Tenant for diminution of rental
value and no liability on the part of Owner by reason of inconvenience,
annoyance or injury to business arising from Owner or other Tenants making any
repairs in the building or any such alterations, additions and improvements.
Furthermore, Tenant shall not have any claim against Owner by reason of Owner's
imposition of such controls of the manner of access to the building by Tenant's
social or business visitors as Owner may deem necessary for the security of the
building and its occupants. See Article 58
No Representations by Owner:
21. Neither Owner nor Owner's agents have made any representations or promises
with respect to the physical condition of the building, the land upon which it
is erected or the demised premises, the rents, leases, expenses of operation or
any other matter or thing affecting or related to the premises except as herein
expressly set forth and no rights, easements or licenses are acquired by Tenant
by implication or otherwise except as expressly set forth in the provisions of
this lease. Tenant has inspected the demised premises and is thoroughly
acquainted with their condition and agrees to take the same "as is" and
acknowledges that the taking of possession of the demised premises by Tenant
shall be conclusive evidence that the said premises of which the same form a
part were in good and satisfactory condition at the time such possession was so
taken, except as to latent defects. All understandings and agreements heretofore
made between the parties hereto are merged in this contract, which alone fully
and completely expresses the agreement between Owner and Tenant, and any
executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of it in whole or in part, unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
End of Term: Vault, Vault Space, Area:
22. Upon the expiration or other termination of the term of this lease, Tenant
shall quit and surrender to Owner the demised premises, broom clean, in good
order and condition, ordinary wear and damages which Tenant is not required to
repair as provided elsewhere in this lease excepted, and Tenant shall remove all
its property. Tenant's obligation to
32
observe or perform this covenant shall survive the expiration or other
termination of this lease. If the last day of the term of this Lease or any
renewal thereof, falls on Sunday, this lease shall expire at noon on the
preceding Saturday unless it be a legal holiday in which case it shall expire at
noon on the preceding business day.
Quiet Enjoyment:
23. Owner covenants and agrees with Tenant that upon Tenant paying the rent and
additional rent and observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of this lease, including, but not limited to, Article 31
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
Failure to Give Possession:
24. If Owner is unable to give possession of the demised premises on the date of
the commencement of the term hereof, because of the holding-over or retention of
possession of any tenant, undertenant or occupants or if the demised premises
are located in a building being constructed, because such building has not been
sufficiently completed to make the premises ready for occupancy or because of
the fact that a certificate of occupancy has not been procured or for any other
reason, Owner shall not be subject to any liability for failure to give
possession on said date and the validity of the lease shall not be impaired
under such circumstances, nor shall the same be construed in any wise to extend
the term of this lease, but the rent and additional rent or other charges or
payments due hereunder payable hereunder shall be abated (provided Tenant is not
responsible for Owner's inability to obtain possession or complete construction)
until after Owner shall have given Tenant written notice that the Owner is able
to deliver possession in condition required by this lease. If permission is
given to Tenant to enter into the possession of the demised premises or to
occupy premises other than the demised premises prior to the date specified as
the commencement of the term of this lease, Tenant covenants and agrees that
such possession and/or occupancy shall be deemed to be under all the terms,
covenants, conditions and provisions of this lease except the obligation to pay
the fixed annual rent set forth in the preamble to this lease. The provisions of
this article are intended to constitute "an express provision to the contrary"
within the meaning of Section 223-a of the New York Real Property Law.
No Waiver:
25. The failure of Owner or Tenant to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this lease or
of any of the Rules or Regulations, set forth or hereafter adopted by Owner,
shall not prevent a subsequent act which would have originally constituted a
violation from having all the force and effect of an original violation. The
receipt by Owner of rent and/or additional rent with knowledge of the breach of
any covenant of this lease shall not be deemed a waiver of such breach and no
provision of this lease shall be deemed to have been waived by Owner unless such
waiver be in writing signed by Owner. No payment by Tenant or receipt by Owner
of a lesser amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement of any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Owner may accept such check or
payment without prejudice to Owner's right to recover the balance of such rent
or pursue any other remedy in this lease provided. No act or thing done by Owner
or Owner's agents during the term hereby demised shall be deemed an acceptance
of a surrender of said premises, and no agreement to accept such surrender shall
be valid unless in writing signed by Owner. No employee of Owner or Owner's
agent shall have any power to accept the keys of said premises prior to the
termination of the lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of the premises.
Waiver of Trial by Jury:
26. It is mutually agreed by and between Owner and Tenant that the respective
parties hereto shall and they hereby do waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other (except for personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with this lease, the relationship of
Owner and Tenant, Tenant's use of or occupancy of said premises, and any
emergency statutory or any other statutory remedy. It is further mutually agreed
that in the event Owner commences any proceeding or action for possession
including a summary proceeding for possession of the premises, Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding including a counterclaim under Article 4 except for statutory
mandatory counterclaims.
Inability to Perform:
27. This Lease and the obligation of Tenant to pay rent hereunder and perform
all of the other covenants and agreements hereunder on part of Tenant to be
performed shall in no wise be affected, impaired or excused because Owner is
unable to fulfill any of is obligations under this lease or to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment,
fixtures, or other materials if Owner is prevented or delayed from so doing by
reason of strike or labor troubles or any cause whatsoever including, but not
limited to, government preemption or restrictions or by reason of any rule,
order or regulation of any department or subdivision thereof of any government
agency or by reason of the conditions which have been or are affected, either
directly or indirectly, by war or other emergency.
Bills and Notices:
28. Except as otherwise in this lease provided, a ▇▇▇▇, statement, notice or
communication which Owner may desire or be required to give to Tenant, shall be
deemed sufficiently given or rendered if, in writing, delivered to Tenant
personally or sent by registered or certified mail addressed to Tenant at the
building of which the demised premises form a part or at the last known
residence address or business address of Tenant or left at any of the aforesaid
premises addressed to Tenant, and the time of the rendition of such ▇▇▇▇ or
statement and of the giving of such notice or communication shall be deemed to
be the time when the same is delivered to Tenant, mailed, or left at the
premises as herein provided. Any notice by Tenant to Owner must be served by
registered or certified mail addressed to Owner at the address first hereinabove
given or at such other address as Owner shall designate by written notice.
[SEE ARTICLE 61]
Services Provided by Owners:
29. Owner shall provide: (a) necessary elevator facilities on business days
from 8:00 a.m. to 6:00 p.m. and have one elevator subject to call at all other
times; (b) heat to the demised premises when and as required by law, or as
reasonably required by weather conditions, as reasonably determined by Owner,
on business days from 8:00 a.m. to 6:00 p.m.; (c) water for ordinary lavatory
purposes, but if Tenant uses or consumes water for any other purposes or in
unusual quantities (of which fact Owner shall be the sole judge), Owner may
install a water meter at Tenant's expense, which Tenant shall thereafter
maintain at Tenant's expense in good working order and repair to register such
water consumption and Tenant shall pay for water consumed as shown on said
meter as additional rent as and when bills are rendered; (d) Owner reserves the
right to stop services of the heating, elevators, plumbing, air-conditioning,
electric, power systems or cleaning or other services, if any, when necessary
by reason of accident or for repairs, alterations, replacements or improvements
necessary or desirable in the judgment of Owner for as long as may be
reasonably required by reason thereof. If the building of which the demised
premises are a part supplies manually operated elevator service, Owner at any
time may substitute automatic control elevator service and proceed diligently
with alterations necessary therefor without in any wise affecting this lease or
the obligation of Tenant hereunder. See Article 47. The same shall be done with
a minimum of inconvenience to Tenant. Tenant shall have access to the demised
premises 24 hours per day, seven days per week.
Captions:
30. The Captions are inserted only as a matter of convenience and for reference
and in no way define, limit or describe the scope of this lease nor the intent
of any provisions thereof.
Definitions:
31. The term "office" or "offices," wherever used in this lease, shall not be
construed to mean premises used as a store or stores, for the sale or display,
at any time, of goods, wares or merchandise, of any kind, or as a restaurant,
shop, booth, bootblack or other stand, barbershop or for other similar purposes
or for manufacturing. The term "Owner" means a landlord or lessor, and as used
in this lease means only the owner, or the mortgagee in possession, for the time
being of the land and building (or the owner of a lease of the building or of
the land and building) of which the demised premises form a part, so that in the
event of any sale or sales of said land and building or of said lease, or in the
event of a lease of said building, or of the land and building, the said Owner
shall be and hereby is entirely freed and relieved of all covenants and
obligations of Owner hereunder, and it shall be deemed and construed without
further agreement between the parties or their successors in interest, or
between the parties and the purchaser, at any such sale, or the said lessee of
the building, or of the land and building, that the purchaser or the lessee of
the building has assumed and agreed to carry out any and all covenants and
obligations of Owner, hereunder. The words "reenter" and "reentry" as used in
this lease are not restricted to their technical legal meaning. The term
"business days" as used in this lease shall exclude Saturdays, Sundays and all
days as observed by the State or Federal Government as legal holidays and those
designated as holidays by the applicable building service union employees
service contract or by the applicable Operating Engineers contract with respect
to HVAC service. Wherever it is expressly provided in this lease that consent
shall not be unreasonably withheld, such consent shall not be unreasonably
delayed.
Adjacent Excavation-Shoring:
32. If an excavation shall be made upon land adjacent to the demised premises,
or shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as said person shall deem necessary to
preserve the wall or the building of which demised premises form a part from
injury or damage and to support the same by proper foundations without any claim
for damages or indemnity against Owner, or diminution or abatement of rent.
Rules and Regulations:
33. Tenant and Tenant's servants, employees, agents, visitors and licensees
shall observe faithfully, and comply strictly with, the Rules and Regulations
and such other and further reasonable Rules and Regulations as Owner or Owner's
agents may from time to time adopt. Notice of any additional rules or
regulations shall be given in such manner as Owner may elect. In case Tenant
disputes the reasonableness of any additional Rule or Regulation hereafter made
or adopted by Owner or Owner's agents, the parties hereto agree to submit the
question of the reasonableness of such Rule or Regulation for decision to the
New York office of the American Arbitration Association, whose determination
shall be final and conclusive upon the parties hereto. The right to dispute the
reasonableness of any additional Rule or Regulation upon Tenant's part shall be
deemed waived unless the same shall be asserted by service of a notice, in
writing upon Owner within fifteen (15) days after the giving of notice thereof.
Nothing in this lease contained shall be construed to impose upon Owner any duty
or obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease, as against any other tenant and Owner shall not
be liable to Tenant for violation of the same by any other tenant, its servants,
employees, agents, visitors or licensees. The rules and regulations for the
Building shall apply uniformly to all tenants in the Building and shall be
enforced in a non-discriminatory manner by Owner.
Security:
34.
33
[See Article 53]
Estoppel Certificate:
35. Tenant, at any time, and from time to time, upon at least twenty (20) days'
prior notice by Owner, shall execute, acknowledge and deliver to Owner, and/or
to any other person, firm or corporation specified by Owner, a statement
certifying that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), stating the dates to which the rent and
additional rent have been paid, and stating whether or not to the best of
Tenant's knowledge there exists any default by Owner under this Lease, and, if
so, specifying each such default. Owner, at any time, and from time to time,
upon at least 10 days' prior notice by Tenant, shall execute, acknowledge and
deliver to Tenant, and/or to any other person, firm or corporation specified by
Tenant, a statement certifying that this Lease is unmodified and in full force
and effect (or, if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), stating the dates to
which the rent and additional rent have been paid, and stating whether or not,
to the best of Owner's knowledge, there exists any default by Tenant under this
Lease, and, if so, specifying each such default.
Successors and Assigns:
36. The covenants, conditions and agreements contained in this lease shall bind
and inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns. Tenant shall look only to Owner's estate
and interest in the land and building, for the satisfaction of Tenant's remedies
for the collection of a judgment (or other judicial process) against Owner in
the event of any default by Owner hereunder, and no other property or assets of
such Owner (or any partner, member, officer or director thereof, disclosed or
undisclosed), shall be subject to levy, execution or other enforcement procedure
for the satisfaction of Tenant's remedies under or with respect to this lease,
the relationship of Owner and Tenant hereunder, or Tenant's use and occupancy of
the demised premises.
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
352 P.A.S. ASSOCIATES
Witness for Owner: By: CABLE BUILDING ASSOC., GENERAL PARTNER
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ASSOC., GENERAL
PARTNER
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------- ---------------------------------------
THE NPD GROUP, INC.
Witness for Tenant:
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------- ---------------------------------------
ACKNOWLEDGEMENTS
CORPORATE OWNER
STATE OF NEW YORK, ss.:
County of
On this day of , 19 , before me
personally came , to me known, who being by
me duly sworn, did depose and say that he resides in
; that he is the
of , the
corporation described in and which executed the foregoing instrument, as OWNER;
that he knows the seal of said corporation; the seal affixed to said instrument
is such corporate seal; that it was so affixed by order of the Board of
Directors of said corporation, and that he signed his name thereto by like
order.
-------------------------------------------------
INDIVIDUAL OWNER
STATE OF NEW YORK, ss.:
County of
On this day of , 19 , before me
personally came , to be known and known to
me to be the individual described in and who, as OWNER, executed the foregoing
instrument and acknowledged to me that
he executed the same.
-------------------------------------------------
CORPORATE TENANT
STATE OF NEW YORK, ss.:
County of
On this day of , 19 , before me
personally came , to me known, who being by
me duly sworn, did depose and say that he resides in
; that he is the
of , the
corporation described in and which executed the foregoing instrument, as TENANT;
that he knows the seal of said corporation; the seal affixed to said instrument
is such corporate seal; that it was so affixed by order of the Board of
Directors of said corporation, and that he signed his name thereto by like
order.
-------------------------------------------------
INDIVIDUAL TENANT
STATE OF NEW YORK, ss.:
County of
On this day of , 19 , before me
personally came , to be known and known to
me to be the individual described in and who, as TENANT, executed the foregoing
instrument and acknowledged to me that
he executed the same.
-------------------------------------------------
34
RIDER TO OFFICE LEASE DATED AS OF MARCH 1, 2000
BETWEEN
352 P.A.S. ASSOCIATES, AS OWNER
AND
THE NPD GROUP, INC., AS TENANT.
---------------------------------
TABLE OF CONTENTS
37. TERM. COMMENCEMENT DATE AND FIXED RENT ABATEMENT .................. -1-
38. USE OF DEMISED PREMISES ........................................... -1-
39. TAXES ............................................................. -2-
40. DEEMED OPERATING EXPENSE .......................................... -4-
41. COMPLIANCE WITH LAWS .............................................. -4-
42. ATTORNMENT AND NOTICE TO OWNER .................................... -4-
43. ASSIGNMENT AND SUBLETTING ......................................... -5-
44. INSURANCE ......................................................... -1l-
45. TENANT'S WORK AND ALTERATIONS ..................................... -12-
46. ELECTRIC ENERGY ................................................... -15-
47. OWNER'S SERVICES .................................................. -16-
48. INDEMNIFICATION ................................................... -17-
49. LATE CHARGE ....................................................... -17-
50. BROKER ............................................................ -17-
51. MISCELLANEOUS PROVISIONS .......................................... -17-
52. DELIVERY OF THE DEMISED PREMISES .................................. -20-
53. SECURITY DEPOSIT .................................................. -20-
54. MAINTENANCE AND REPAIRS ........................................... -20-
55. DAMAGE AND DESTRUCTION ............................................ -21-
56. INTENTIONALLY OMITTED ............................................. -21-
57. ACCESS TO THE DEMISED PREMISES .................................... -21-
58. BUILDING ALTERATIONS .............................................. -21-
59. HAZARDOUS MATERIALS ............................................... -21-
60. CLEANING AND RUBBISH REMOVAL ...................................... -22-
61. NOTICES ........................................................... -22-
35
62. OWNER'S CONTRIBUTION .............................................. -25-
Schedule A - Fixed Rent
Exhibit A - Floor Plan
Exhibit B - Owner's Base Building Work
-2-
36
RIDER TO LEASE BETWEEN
352 P.A.S. ASSOCIATES, AS OWNER,
AND THE NPD GROUP, INC.. AS TENANT
In the event of a conflict between this Rider and the form lease which
precedes this Rider, the provisions of this Rider shall prevail.
37. TERM, COMMENCEMENT DATE AND FIXED RENT ABATEMENT. (a) The term
of this lease shall commence on the Commencement Date (herein defined) and shall
end at 11:59 p.m. on last day of the calendar month which is the fourth (4th)
month after the tenth (10th) Lease Year (defined below) (the "Expiration Date")
or on such earlier date upon which the term of this lease shall expire or be
cancelled or terminated pursuant to any of the terms, conditions or covenants of
this lease or pursuant to law. "Commencement Date" shall be the date on which
the work set forth on Exhibit B annexed hereto ("Owner's Base Building Work")
shall be substantially completed; Owner's Base Building Work shall be deemed to
have been substantially completed even though minor details or adjustments may
not then be completed. Owner shall give Tenant written notice five (5) days
prior to substantial completion of Owner's Base Building Work. "Lease Year"
shall mean, for the first Lease Year, the period from the Commencement Date to
the last day of the month in which the first anniversary of the Commencement
Date shall occur unless the Commencement Date is the first day of a month, in
which case the first Lease Year shall end on the day prior to the first
anniversary of the Commencement Date, and thereafter a "Lease Year" shall mean
each period of twelve (12) consecutive months occurring during the Term. If the
Expiration Date shall be any day other than the last day of a Lease Year, then
the period from the day after the last day of the last Lease Year to the
Expiration Date shall be referred to as the "Last Partial Lease Year".
(b) If the Commencement Date or Expiration Date occurs on a
day other than the first day of a calendar month, the Fixed Rent and additional
rent for such partial calendar month shall be prorated based on the actual
number of days in such month. Notwithstanding anything contained this lease
and exhibits (including Schedule A) to the contrary, provided Tenant is not in
default of this lease beyond any applicable notice and grace period, at the time
monthly Fixed Rent is due and payable to Owner for the first (full calendar),
second, thirteenth and fourteenth months of the term, Tenant shall be entitled
to an abatement of the monthly Fixed Rent which would otherwise be due and
payable for such first, second, thirteenth and fourteenth month of the term.
(c) Upon demand of either party, the parties shall enter into
a written agreement setting forth the Commencement Date and the Expiration Date
of this lease.
38. USE OF DEMISED PREMISES. Supplementing the provisions of Article
2 of this lease:
(a) Tenant shall not at any time use or occupy the demised
premises or the Building, or suffer or permit anyone to use or occupy the
demised premises, or do anything in the demised premises or the Building, or
suffer or permit anything to be done in, brought into or kept on the demised
premises, which in any manner in the reasonable discretion of Owner (i) violates
the certificate of occupancy for the demised premises, if any, or for the
Building; (ii) causes or is liable to cause injury to the demised premises or
the Building or any equipment, facilities or systems therein; (iii) constitutes
a violation of the laws and requirements of any public authorities or the
requirements of insurance bodies (however Owner represents that as of the date
hereof (i) Owner has not received written notice of any violation of the laws
and requirements of any public authorities or the requirements of insurance
bodies and (ii) the demised premises may lawfully be used and occupied for the
purposes set forth in Article 2); (iv) impairs or tends to impair the character,
reputation or appearance of the Building as now exists; (v) impairs or tends to
impair the proper and economic maintenance, operation and repair of the Building
and/or its equipment, facilities or systems; (vi) materially annoys or
inconveniences or tends to annoy or inconvenience other tenants or occupants of
the Building; (vii) constitutes a nuisance, public or private; (viii) makes
unobtainable from reputable insurance companies authorized to do business
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37
in New York State any fire insurance with extended coverage, or liability,
elevator, boiler or other insurance at standard rates required to be furnished
by Owner under the terms of any mortgages covering the demised premises or
causes any increase in premiums on policies carried by Owner; or (ix) discharges
objectionable fumes, vapors or odors into the Building's flues or vents or
otherwise in such manner as may unreasonably offend other tenants or occupants
of the Building.
(b) Tenant shall not use, or suffer or permit anyone to use,
the demised premises or any part thereof, for (i) the business of photographic
reproductions and/or offset printing (except that Tenant may use part of the
demised premises for photographic reproductions and/or offset printing in
connection with, either directly or indirectly, its own business and/or
activities), (ii) an agency, department or bureau of the United States
Government, any state or municipality within the United States or any foreign
government, or any political subdivision of any of them, (iii) an employment
agency or travel agency, (iv) a banking, trust company, or safe deposit
business, (v) a savings bank, a savings and loan association, or a loan company,
(vi) the sale of travelers' checks and/or foreign exchange, (vii) a stock
brokerage office or for stock brokerage purposes, (viii) a restaurant and/or bar
and/or the sale of confectionery and/or soda and/or beverages and/or sandwiches
and/or ice cream and/or baked goods (except for a cafeteria for the use of
Tenant's employees and invited guests), (ix) a school or classroom, (x) medical
or psychiatric offices, (xi) conduct of an auction, (xii) gambling activities or
(1) the conduct of obscene, pornographic or similar disreputable activities,
(xii) any charitable, religious, union or other not-for-profit organization, or
(xiv) any tax exempt entity within the meaning of Section 168(h)(2)(A) of the
Internal Revenue Code of 1986, or any successor or substitute statute, or rule
or regulation applicable thereto, as same may be amended.
(c) If any governmental license or permit (other than a
certificate of occupancy for the entire Building and/or the demised premises or
equipment use permits for the HVAC Equipment (as hereinafter defined)), shall be
required for the proper and lawful conduct of Tenant's particular business in
the demised premises or any part thereof (as opposed to Tenant's use of the
demised premises for general offices), Tenant, at its expense, shall duly
procure and thereafter maintain such license or permit and submit the same to
Owner for inspection. Tenant shall at all times comply with the terms and
conditions of each such license or permit.
39. TAXES. (a) The terms defined below shall for the purposes of
this lease have the meanings herein specified:
(i) "Taxes" shall mean all real estate taxes, sewer
rents, water frontage charges, and assessments, special or otherwise, levied,
assessed or imposed by the City of New York or any other taxing authority upon
or with respect to the Building and the land thereunder (the "Land") and all
taxes assessed or imposed with respect to the rentals payable hereunder other
than general income and gross receipts taxes (except that general income and
gross receipts taxes shall be included if covered by the provisions of the
following sentence) and other than penalties or interest imposed upon Owner by
virtue of Owner's failure to pay Taxes in a timely manner. Taxes shall also
include any taxes, charges or assessments levied, assessed or imposed by any
taxing authority in addition to or in lieu of the present method of real estate
taxation, provided such additional or substitute taxes, charges and assessments
are computed as if the Building were the sole property of the Owner subject to
said additional or substitute tax, charge or assessment. With respect to any Tax
Year, all expenses, including customary legal fees, experts' and other
witnesses' fees, incurred in contesting the validity or amount of any Taxes or
in obtaining a refund of Taxes, shall be considered as part of the Taxes for
such Tax Year, however, such expenses shall not exceed the amount of any refund
or reduction achieved by said proceedings. Tenant hereby waives any right to
institute or join in tax certiorari proceedings or other similar proceedings
contesting the amount or validity of any Taxes.
(ii) "Base Tax Year" shall mean an amount equal to the
Taxes for the twelve (12) month period commencing on July 1, 2000.
(iii) "Base Taxes" shall mean the Taxes payable for the
Base Tax Year.
-4-
38
(iv) "Tax Year" shall mean each period of twelve (12)
months, commencing on the first day of July of each such period, in which occurs
any part of the term of this lease or such other period of twelve (12) months
occurring during the term of this lease as hereafter may be duly adopted as the
fiscal year for real estate tax purposes of the City of New York.
(v) "Tax Statement" shall mean an instrument or
instruments setting forth the amount payable by Tenant for a specified Tax Year
pursuant to this Article.
(vi) "Tenant's Percentage" shall mean 6.25%.
(b) If Taxes payable for any Tax Year or any part thereof
shall exceed the Base Taxes, Tenant shall pay to Owner as additional rent an
amount (herein called the "Tax Payment") equal to Tenant's Percentage of the
amount by which the Taxes for such Tax Year are greater than the Base Taxes,
which amount shall be payable as hereinafter provided.
(c) The Tax Payment shall be payable by Tenant, in its
entirety with respect to each installment then due to the appropriate taxing
authority, as an Additional Charge, within twenty (20) days after Tenant shall
have received a Tax Statement from Owner (which Tax Statement shall be
accompanied by a copy of the relevant tax ▇▇▇▇ from the applicable taxing
authority and a copy of the tax ▇▇▇▇ for the Base Taxes) but in no event sooner
than thirty (30) days prior to the date that such installment of Taxes is due to
the applicable taxing authority. Owner's failure to render a Tax Statement with
respect to any Tax Year shall not prejudice Owner's right thereafter to render a
Tax Statement with respect to any such Tax Year nor shall the rendering of a Tax
Statement prejudice Owner's right thereafter to render a corrected Tax Statement
for that Tax Year.
(d) If the amount of Taxes payable during the Base Tax Year is
reduced by final determination of legal proceedings, settlement or otherwise,
the reduced amount of such Taxes shall determine the amount of the Tax Payment
pursuant to this Article. The Tax Payments theretofore paid or payable under
this Article shall be recomputed on the basis of such reduction, and the Tenant
shall pay to Owner as additional rent within thirty (30) days after being billed
therefor, any deficiency between the amount of the Tax Payments theretofore
computed and the amount thereof due as a result of such recomputation. Owner
represents to Tenant that neither the Building or the land upon which it is
located is subject to a tax abatement or reduction which shall end or diminish
during the term of this lease.
(e) In the event Taxes for any Tax Year or part thereof shall
be reduced after Tenant shall have paid Tenant's Tax Payment in respect of such
Tax Year, Owner shall set forth in the first Tax Statement thereafter submitted
to Tenant the amount of such refund; and, provided that Tenant is not then in
default, beyond any applicable grace periods (or until such time as Tenant cures
such default), if any, under this lease, Tenant shall receive a credit (or at
the end of the term a refund, provided nothing contained herein shall require
Owner to make a refund if Owner shall receive a reduction in Taxes after the
expiration of one (1) year after the expiration or earlier termination of this
lease) against the installment or installments of rent next falling due equal to
Tenant's Percentage of such refund (after deducting from such total refund the
costs and expenses, including, without limitation, appraisal, accounting and
legal fees of obtaining same, to the extent such costs and expenses were not
included in the Taxes for such Tax Year), but in no event shall the credit or
refund exceed the amount of the additional rent paid by Tenant with respect to
Taxes for said Tax Year, and in no event shall the costs and expenses of
obtaining such refund exceed the amount of the refund.
(f) The expiration or termination of this lease during any Tax
Year for any part or all of which there is a Tax Payment due under this Article
shall not affect the rights or obligations of the parties hereto respecting such
Tax Payment and any Tax Statement relating to such Tax Payment may, on a pro
rata basis, be sent to Tenant subsequent to, and all such rights and obligations
shall survive, any such expiration or termination for a period of one year. Any
payments due under such Tax Statement shall be payable within thirty (30) days
after such statement is sent to Tenant.
-5-
39
40. DEEMED OPERATING EXPENSE. In lieu of an operating expense,
Tenant shall pay to Owner, (in addition to the Fixed Rent and any Taxes payable
by Tenant under Article 39 herein and any other additional rent which may be due
hereunder), as additional rent, a Deemed Operating Expense (the "Deemed
Operating Expense") at the following annual rates, payable in equal monthly
installments on the first of each:
Lease Year 1 - $0.00 per year (Year 1 to cover the period from the
Commencement Date through and including the last day of the
calendar month in which the first (1st) anniversary of the
Commencement Date occurs);
Lease Year 2 - $ 11,730.00 per year, $ 977.50 per month;
Lease Year 3 - $ 23,811.90 per year, $ 1,984.33 per month;
Lease Year 4- $ 36,256.26 per year, $ 3,021.36 per month;
Lease Year 5 - $ 49,073.94 per year, $ 4,089.50 per month;
Lease Year 6 - $ 62,966.16 per year, $ 5,247.18 per month;
Lease Year 7 - $ 77,275.15 per year, $ 6,439.60 per month;
Lease Year 8 - $ 92,013.40 per year, $ 7,667.78 per month;
Lease Year 9 - $107,193.80 per year, $ 8,932.82 per month;
Lease Year 10- $122,829.62 per year, $10,235.80 per month;
Last Partial
Lease Year - $138,934.51 per year, $11,577.88 per month.
The Deemed Operating Expense is intended to be an index in the
nature of a cost of living index, and is not intended to reflect the actual
operating costs of the Building.
41. COMPLIANCE WITH LAWS. If any capital improvement is made to the
Building or the Land during any calendar year during the term in compliance with
requirements of any Federal, state or local law or governmental regulation,
whether or not such law or regulation is valid or mandatory, then, if such
capital improvement was necessitated by reason of or in connection with Tenant's
manner of use of the demised premises, Tenant shall pay to Owner, immediately
upon demand therefor, Tenant's Percentage of the reasonable annual amortization,
with interest, of the cost of such improvement in each calendar year during the
term during which such amortization occurs.
42. ATTORNMENT AND NOTICE TO OWNER. Supplementing the provisions of
Article 7 of this lease:
(a) If at any time or times during the term of this lease, (i)
the Owner of the demised premises shall be the holder of a leasehold estate
covering premises of which the demised premises are a part, and if such
leasehold estate shall expire or terminate for any reason, or (ii) if the
Building, Land or the Owner's aforesaid leasehold estate shall now or hereafter
be affected by a mortgage, then Tenant shall, at the election and upon demand of
any owner of the premises of which the demised premises are a part, or of any
mortgagee in possession thereof, attorn to any such owner or mortgagee upon the
terms and conditions set forth herein for the remainder of the term of this
lease. The foregoing provisions shall inure to the benefit of any such owner or
mortgagee and shall, in the event of any such election and demand, be
self-operative without the necessity of the execution of any further
instruments; but Tenant agrees upon the demand of any such owner or mortgagee to
execute, acknowledge and deliver any instrument or instruments confirming such
attornment. The foregoing provisions shall not be construed to limit or preclude
any other rights which such owner or mortgagee may then have under law or
otherwise.
(b) In the event of an act or omission or alleged act or
omission by Owner which would give Tenant the right to terminate this lease or
to ▇▇▇▇▇ the payment of rent or to claim a partial or total eviction, Tenant
shall not exercise any such right unless (i) Tenant shall first have given
written notice as required herein of such act or omission to Owner and to the
holder of any mortgage on the Building (whose name and address shall previously
have been furnished to Tenant) and (ii) neither Owner nor any mortgagee shall
have commenced to cure such act or omission within a reasonable period of time
following the giving of such notice
-6-
40
(which reasonable period shall in no event be less than the period to which
Owner would be entitled under this lease or otherwise, after similar notice, to
effect such remedy).
(c) If, in connection with the procurement, continuation or
renewal of any financing for which the Land or the Building represents
collateral in whole or in part, an institutional lender shall request reasonable
modifications of this lease as a condition of such financing, Tenant will not
withhold its consent thereto; provided that such modifications do not increase
the obligations of Tenant under this lease or adversely affect any rights of
Tenant under this lease or decrease or diminish the obligations of Owner under
this lease. If, in connection with the procurement, continuation or renewal of
any financing for which the Land or the Building represents collateral in whole
or in part, an institutional lender shall request financial statements from
Tenant or any guarantor of Tenant's obligations hereunder, Tenant shall deliver
or cause such guarantor to deliver, as the case may be, to such institutional
lender such financial statements which such institutional lender shall
reasonably request provided the same shall then be in existence, provided,
however, that Owner and such institutional lender shall cause such financial
statements to be kept confidential (unless otherwise compelled by a court of
competent jurisdiction).
(d) Upon request by Tenant, Owner shall, with respect to any
future ground or underlying leases to which this lease may be subject and to all
mortgages that hereafter affect such leases or the real property of which the
demised premises are a part, use reasonable efforts to cause to be delivered to
Tenant a non-disturbance and attornment agreement in the usual form approved by
such mortgagee, ground or underlying lessor and reasonably acceptable to Tenant,
provided, however, in no event shall Owner have an obligation to deliver (or
cause to be delivered) a non-disturbance and attornment agreement to Tenant. The
term "reasonable efforts" as used in the immediately preceding sentence shall
not require Owner to expend any sum of money or to commence any action or
proceeding to cause the procurement of any non-disturbance and attornment
agreement. Once Owner shall have requested of such mortgagee, ground lessor or
underlying lessor, that a non-disturbance and attornment agreement be delivered
to Tenant, then Owner shall have no further obligation with respect to obtaining
such non-disturbance and attornment agreement.
43. ASSIGNMENT AND SUBLETTING. (a) Tenant shall not, whether
voluntarily, involuntarily, or by operation of law or otherwise (i) assign or
otherwise transfer this lease or the term and estate hereby granted, or offer or
advertise to do so, (ii) sublet the demised premises or offer or advertise to do
so, or allow the same to be used, occupied or utilized by anyone other than
Tenant, (iii) mortgage, pledge, encumber or otherwise hypothecate this lease or
the demised premises or any part thereof in any manner whatsoever or (iv) permit
the demised premises or any part thereof to be occupied, or used for desk space,
mailing privileges or otherwise, by any person other than Tenant, without in
each instance obtaining the prior written consent of Owner which consent shall
not be unreasonably withheld or delayed, subject to Subparagraph (g) hereof.
Notwithstanding anything to the contrary contained herein, Owner hereby consents
to a sublease of the whole demised premises to Media Metix, Inc. (the "Permitted
Media Metrix Sublease"). Owner agrees that the provisions of subsection (g)
hereof shall not apply with respect to the Permitted Media Metrix Sublease.
(b) Tenant expressly covenants and agrees that a transfer of
more than fifty percent (50%) (at any one time or, in the aggregate from time to
time) of the shares (excluding a publicly held corporation whose shares are
traded on a national stock exchange, and excluding the transfer of shares in
connection with an initial public offering and listing of Tenant's stock on a
national stock exchange) of any class of the issued and outstanding stock of
Tenant, its successors or assigns or the issuance of additional shares of any
class of its stock to the extent of more than 50% of the number of shares of
said class of stock issued and outstanding at the time that it became the tenant
hereunder (excluding a publicly held corporation whose shares are traded on a
national stock exchange) or the sale or transfer of more than 50% of the
partnership, joint venture or other unincorporated association interests of
Tenant, its successors or assigns shall constitute an assignment of this lease
and, unless in each instance the prior written consent of Owner has been
obtained, shall constitute a default under this lease and shall entitle Owner to
exercise all rights and remedies provided for herein in the case of default. The
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provisions of this Subparagraph (b) shall not apply to transactions with a
corporation into or with which Tenant is merged or consolidated or to
transactions with a corporation, partnership or other business entity to which
substantially all of Tenant's assets are transferred or to any entity
("Affiliate") which controls or is controlled by Tenant or is under common
control with Tenant, provided that in any of such events (i) the successor to
Tenant is a reputable entity of good character and has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
greater of (l) the net worth of Tenant immediately prior to such merger,
consolidation or transfer, or (2) the net worth of the Tenant herein named on
the date of this lease, (ii) proof reasonably satisfactory to Owner of such net
worth shall have been delivered to Owner at least five (5) days prior to the
effective date of any such transaction, (iii) a duplicate original instrument of
assignment in form and substance satisfactory to Owner, duly executed by Tenant,
shall have been delivered to Owner at least five (5) days prior to the effective
date of any such transaction, if such an assignment is prepared or necessary and
(iv) an instrument in form and substance satisfactory to Owner, duly executed by
the assignee, in which such assignee assumes (as of the Commencement Date)
observance and performance of, and agrees to be personally bound by, all of the
terms, covenants and conditions of this lease on Tenant's part to be performed
and observed shall have been delivered to Owner at least five (5) days prior to
the effective date of any such transaction. For purposes of this Subparagraph
(b), the term "control", "controlled by" and "under common control with" shall
mean, in the case of a corporation, ownership or voting control, directly or
indirectly, of at least fifty-one (51%) percent of all the voting stock, and in
case of a joint venture or partnership or similar entity, ownership, directly or
indirectly, of at least 51% of all the general or other partnership (or similar)
interests therein.
(c) If this lease be assigned, whether or not in violation of
the provisions of this lease, Owner may collect rent from the assignee. If the
demised premises are sublet or used or occupied by anybody other than Tenant,
whether or not in violation of this lease, Owner may, after default by Tenant,
and expiration of Tenant's time to cure such default, collect rent from the
subtenant or occupant. In either event, Owner may apply the net amount collected
to the Fixed Rent and additional rent herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of the
provisions of Subparagraph (a), or the acceptance of the assignee, subtenant or
occupant as tenant, or a release of Tenant from the performance by Tenant of
Tenant's obligations under this lease. The consent by Owner to a particular
assignment, mortgaging, subletting or use or occupancy by others shall not in
any way be considered a consent by Owner to any other or further assignment,
mortgaging or subletting or use or occupancy by others not expressly permitted
by this Article. References in this lease to use or occupancy by others (that
is, anyone other than Tenant) shall not be construed as limited to subtenants
and those claiming under or through subtenants but shall also include licensees
and others claiming under or through Tenant, immediately or remotely.
(d) Any assignment or transfer, whether made with or without
Owner's consent, shall be made only if, and shall not be effective until, the
assignee shall execute, acknowledge and deliver to Owner an agreement in form
and substance satisfactory to Owner 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 Subparagraph (a) 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
Fixed Rent and/or additional rent by Owner from an assignee, transferee, or any
other party, the original named Tenant shall remain fully liable for the payment
of the Fixed Rent and additional rent and for the other obligations of this
lease on the part of Tenant to be performed or observed, except as may otherwise
be agreed to by Owner in writing.
(e) 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 Owner extending the time of, or modifying any of the
obligations of, this lease, or by any waiver or failure of Owner to enforce any
of the obligations of this lease, except for any material modification of this
lease which increases the
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obligations of Tenant hereunder after the Tenant named herein shall assign or
transfer its interest in this lease.
(f) The listing of any name other than that of Tenant, whether
on the doors of the demised premises or the Building directory, 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 Owner to any assignment or
transfer of this lease or to any sublease of the demised premises or to the use
or occupancy thereof by others.
(g) Notwithstanding anything to the contrary contained in this
Article, if Tenant shall at any time or times during the term of this lease
desire to assign this lease or sublet all or any portion of the demised
premises, Tenant shall give notice thereof to Owner, and (except with respect to
assignments permitted without Owner's consent pursuant to Section 43(b)) which
notice shall be accompanied by a conformed or photostatic copy of a term sheet
(the "Offer Sheet") executed by the proposed assignee or subtenant, which Offer
Sheet shall contain (i) 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, (ii) current financial information
with respect to the proposed assignee or subtenant, including, without
limitation, its most recent certified financial statements and (iii) the
Material Terms (herein defined) of the proposed assignment or sublet, including,
without limitation, the commencement date of such assignment or sublet, which
commencement date shall be at least sixty (60) days after the Tenant's delivery
to Owner of the Offer Sheet. Such notice shall be deemed an offer from Tenant to
Owner whereby Owner (or Owner's designee) may, at its option, (i) sublease such
space from Tenant upon the terms and conditions set forth in the Offer Sheet and
as hereinafter set forth (if the proposed transaction is a sublease of all or
part of the demised premises) or (ii) terminate this lease (if the proposed
transaction is an assignment or a sublease of all or substantially all of the
demised premises) or (iii) terminate this lease with respect to the space
covered by the proposed sublease (if the proposed transaction is a sublease of
part of the demised premises for the balance or substantially the balance of the
term of this lease). Said option may be exercised by Owner by notice to Tenant
at any time within thirty (30) days after such notice has been given by Tenant
to Owner; and during such 30-day period Tenant shall not assign this lease or
sublet the demised premises to any person or entity; Owner's failure to respond
within such time period shall be deemed a response by Owner declining to
exercise such option.
For purposes of this Article 43, the term "Material Terms" shall,
with respect to a proposed assignment or subletting pursuant to this Article 43,
be deemed to include the following items: term of the proposed subletting, all
applicable monetary terms (including, without limitation, any fixed or base
rent, operating expense or ▇▇▇▇▇▇ wage escalations, rent abatements, free rent
periods, security deposits and any other payments which may be made in
consideration for the assignment of this lease), renewal rights, expansion
rights, rights of first refusal or first offer, rights of termination and any
payments associated therewith, and construction allowances or contributions.
(h) If Owner exercises its option to terminate this lease in
the case where Tenant desires either to assign this lease or sublet 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 Fixed Rent and additional rent shall be paid and
apportioned to such date.
(i) If Owner exercises its option to terminate this lease with
respect to the space covered by Tenant's proposed sublease in any case where
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; (b) from and after such date the
Fixed 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) Tenant shall pay to Owner, within thirty
(30) days after notice, as additional rent hereunder the reasonable costs
incurred by Owner 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, unless under
such proposed
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subletting, Tenant's subtenant was to pay such expenses, in which case Owner
shall be responsible for such costs.
(j) If Owner exercises its option to sublet the portion(s) of
the demised premises which Tenant desires to sublet, such sublease to Owner or
its designee (as subtenant) shall be at the lower of (i) the rental rate per
rentable square foot of Fixed Rent and additional rent then payable pursuant to
this lease or (ii) the rentals set forth in the Offer Sheet, and shall be for
the same term as that of the Offer Sheet, and:
(i) The sublease 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 Article;
(ii) Such sublease shall be upon the same terms and
conditions as those to be contained in the Offer Sheet (and such other terms as
Owner and Tenant shall mutually and in good faith agree upon), except such as
are irrelevant or inapplicable and except as otherwise expressly set forth to
the contrary in this Article;
(iii) Such sublease shall give the sublessee the
unqualified and unrestricted right, without Tenant's permission, to assign such
sublease or any interest therein and/or to sublet the space covered by such
sublease or any part or parts of such space and to make any and all changes,
alterations, and improvements in the space covered by such sublease provided
that the sublessee shall remain liable thereunder for all obligations under such
sublease;
(iv) Such sublease shall provide that any assignee or
further subtenant of Owner or its designee, may, at the election of Owner, be
permitted to make alterations, decorations and installations in such space or
any part thereof and shall also provide in substance that any such alterations,
decorations and installations in such space therein made by any assignee or
subtenant of Owner 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 such space so sublet caused by
such removal;
(v) Such sublease shall also provide that (a) 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, (b) any assignment or subletting by Owner or its designee (as the
subtenant) may be for any purpose or purposes that Owner, in Owner's
uncontrolled discretion, shall deem suitable or appropriate, (c) Tenant, at
Tenant's expense, shall and will at all times provide and permit reasonably
appropriate means of ingress to and egress from such space so sublet by Tenant
to Owner or its designee, (d) Owner, at Owner's expense, may make such
alterations as may be required or deemed necessary by Owner to physically
separate the subleased space from the balance of the demised premises in order
to make such subleased space a self-contained rental unit and to comply with any
laws and requirements of public authorities relating to such separation, and (e)
that at the expiration of the term of such sublease, Tenant will accept the
demised premises in its then existing condition, subject to the obligations of
the sublessee to make such repairs thereto as may be necessary to preserve the
premises demised by such sublease in good order and condition; and
(vi) Except as set forth above, with respect to any
sublease to Owner or its designee, Owner or such designee shall accept and take
such subleased premises "as is" and if Owner or any such designee or any
subsequent subtenant of Owner or such designee, immediate or remote, shall make
any improvements to said subleased premises, Tenant shall, at the Expiration
Date, or sooner expiration of the term of this lease, have no obligation to
restore to its condition as of the date of this lease or subsequent thereto any
space so sublet nor to remove therefrom any improvements made therein by Owner
or its designee or any immediate or remote subtenant of either. If said sublease
shall terminate or expire prior to one month before the Expiration Date, said
premises so subleased shall be returned to Tenant with all facilities necessary
for the use and occupancy of said premises as general offices, including,
without limitation, ceilings, walls, light fixtures, electrical outlets, air
conditioning and heating systems,
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in good working order and repair and otherwise in a tenantable condition. In
addition, Tenant shall not be deemed in default under this lease to the extent
any obligation hereunder is assumed by Owner, its designee or any subtenant of
either pursuant to any sublease of said premises, immediate or remote, if Owner,
its designee or any subtenant of either, immediate or remote, shall default in
its obligations under such sublease or shall otherwise cause a default under
this lease, including without limitation, the obligation to pay any rent,
additional rent or other charges thereunder, and Tenant shall be excused from
payment to Owner of an amount equal to the amount to be paid by Owner, its
designee or any subtenant of either, immediate or remote, under such sublease,
which amount shall be automatically credited against the amounts due by Tenant
to Owner under this lease to Owner.
(k) In the event Owner does not exercise its options pursuant
to Subparagraph (g) to so sublet the demised premises or terminate this lease in
whole or in part and providing that Tenant is not in default of any of the
monetary obligations imposed hereunder, beyond applicable grace periods, if any,
of any of Tenant's obligations under this lease, either at the time Owner's
consent to such assignment or sublease is requested or at the commencement of
the term of any proposed sublease or on the effective date of any such
assignment, Owner's consent (which must be in writing and in form reasonably
satisfactory to Owner) to the proposed assignment or sublease shall not be
unreasonably withheld or delayed, provided and upon condition that:
(i) Tenant shall have complied with the provisions of
Subparagraph (g) and Owner shall not have exercised any of its options under
said Subparagraph (g) within the time permitted therefor;
(ii) In Owner's reasonable judgment the proposed
assignee or subtenant is engaged in a business and the demised premises will be
used in a manner which (a) is in keeping with the then standards of the
Building, (b) is limited to the use expressly permitted under Article 2 and does
not violate Article 38, and (c) will not violate any negative covenant as to use
contained in any other lease of space in the Building;
(iii) The proposed assignee or subtenant is a reputable
person of good character and with sufficient financial worth considering the
responsibility involved, and Owner has been furnished with reasonable proof
thereof;
(iv) Neither (a) the proposed assignee or sublessee nor
(b) any person which, directly or indirectly, controls, is controlled by, or is
under common control with, the proposed assignee or sublessee or any person who
controls the proposed assignee or sublessee, is then an occupant of any part of
the Building;
(v) The proposed assignee or sublessee is not a person
with whom Owner is then negotiating to lease space in the Building;
(vi) The proposed assignee or sublessee is not entitled,
directly or indirectly, to diplomatic or sovereign immunity and is subject to
the service of process in, and the jurisdiction of the courts of, New York
State;
(vii) The form of the proposed sublease shall be in form
reasonably satisfactory to Owner and shall comply with the applicable provisions
of this Article;
(viii) There shall not be more than two (2) subtenants
(not including Owner or its designee) of the demised premises;
(ix) The rental and other terms and conditions of the
sublease are the same as those contained in the Offer Sheet furnished to Owner
pursuant to Subparagraph (g);
(x) Tenant shall reimburse Owner within ten (10) days
after notice for any actual costs that may be incurred by Owner in connection
with said assignment or sublease, including, without limitation, the costs of
making investigations as to the acceptability
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of the proposed assignee or subtenant, and legal costs incurred in connection
with the granting of any requested consent; and
(xi) Tenant shall not have (a) advertised or publicized
in any way the availability of the demised premises without prior notice to and
approval by Owner, which approval shall not be unreasonably withheld nor shall
any advertisement state the name (as distinguished from the address) of the
Building or the proposed rental, (b) listed the demised premises for subletting,
whether through a broker, agent, representative, or otherwise at a rental rate
less than the lesser of (x) the Fixed Rent and additional rent then payable
hereunder for such space, or (y) the Fixed Rent and additional rent at which
Owner is then offering to lease other space in the Building.
(l) In the event that (a) Owner fails to exercise any of its
options under Subparagraph (g), and consents to a proposed assignment or
sublease, and (b) Tenant fails to execute and deliver an assignment or sublease
consistent with the material terms of the Offer Sheet within sixty (60) days
after the giving of such Offer Sheet, then, Tenant shall again comply with all
of the provisions and conditions of Subparagraph (g) before assigning this lease
or subletting all or part of the demised premises.
(m) With respect to each and every sublease or subletting
authorized by Owner under the provisions of this lease, it is further agreed:
(i) No subletting shall be for a term ending later than
one day prior to the Expiration Date of this lease.
(ii) No sublease shall be valid, and no subtenant shall
take possession of the demised premises until an executed counterpart of such
sublease has been delivered to Owner.
(iii) 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
Owner under this lease Owner 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 Owner's option, attorn to Owner pursuant to the then
executory provisions of such sublease, except that Owner shall not (a) be liable
for any previous act or omission of Tenant under such sublease, (b) be subject
to any offset, not expressly provided in such sublease, which theretofore
accrued to such subtenant against Tenant, or (c) be bound by any previous
modification of such sublease or by any previous prepayment of more than one
month's rent, unless consented to by Owner.
(n) If the Owner shall give its consent to any assignment of
this lease or to any sublease, Tenant shall in consideration therefor, pay to
Owner, as additional rent:
(i) In the case of an assignment, an amount equal to
one-half of all sums and other considerations (less reasonable costs of any real
estate brokers employed by Tenant in connection therewith, attorney's fees and
costs, transfer taxes, rent concessions or work allowances and advertising) paid
to Tenant by the assignee for or by reason of such assignment (including, but
not limited to, sums paid for the sale of Tenant's fixtures, leasehold
improvements, equipment, furniture, furnishings or other personal property,
less, in the case of a sale thereof, the then net unamortized or undepreciated
cost thereof determined on the basis of a certified statement of Tenant's
accountant with respect to Tenant's federal income tax returns); and
(ii) In the case of a sublease one-half of any rents,
additional charges or other consideration payable under the sublease to Tenant
by the subtenant which is in excess of the Fixed Rent and additional rent
accruing during the term of the sublease in respect of the subleased space (at
the rate per square foot payable by Tenant hereunder) pursuant to the terms
hereof (including, but not limited to, sums paid for the sale or rental of
Tenant's fixtures, leasehold improvements, equipment, furniture or other
personal property, less, in the case of the
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sale thereof, the then net unamortized or undepreciated cost thereof determined
on the basis of a certified statement of Tenant's accountant with respect to
Tenant's federal income tax returns and less reasonable costs of any real estate
brokers employed by Tenant in connection therewith, attorney's fees and costs,
transfer taxes, rent concessions or work allowances and advertising; such costs
being referred to herein, collectively, as "Subletting Costs"). The sums payable
under this Subparagraph shall be paid to Owner as and when paid by the subtenant
to Tenant and the Subletting Costs shall not be deducted in a single lump-sum,
but rather shall be amortized over the remaining term of the Lease.
(o) Except for any subletting by Tenant to Owner or its
designee pursuant to the provisions of this Article, each subletting shall be
subject to all of the covenants, agreements, terms, provisions and conditions
contained in this lease. Notwithstanding any subletting to any other subtenant
(other than Owner or its designee) and/or acceptance of rent or additional rent
by Owner from any subtenant, Tenant shall and will remain fully liable for the
payment of the Fixed 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 and
further subletting of the demised premises by Tenant or any person claiming
through or under Tenant (except as provided in Subparagraph (j)) shall or will
be made except upon compliance with and subject to the provisions of this
Article. If Owner shall decline to give its consent to any proposed assignment
or sublease, or if Owner shall exercise any of its options under Subparagraph
(g), Tenant shall indemnify, defend and hold harmless Owner 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 Owner 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.
44. INSURANCE. Supplementing the provisions of Article 9 of this
lease:
(a) Tenant, at its expense, shall maintain at all times during
the term of this lease public liability insurance in respect of the demised
premises and the conduct or operation of business therein, with Owner and its
managing agent, if any, and Owner's mortgagee(s) whose names and addresses shall
previously have been furnished to Tenant, as additional named insureds, with
limits of not less than $3,000,000 for bodily injury or death to any one person
and $5,000,000 for bodily injury or death to any number of persons in any one
occurrence, and $1,000,000 for property damage. Tenant shall deliver to Owner
and any additional named insured such fully paid-for policies or certificates of
insurance, in form satisfactory to Owner issued by the insurance company or its
authorized agent, at least ten (10) days before the commencement date. Tenant
shall procure and pay for renewals of such insurance from time to time before
the expiration thereof, and Tenant shall deliver to Owner and any additional
named insured such renewal policy or a certificate thereof at least fifteen (15)
days before the expiration of any existing policy. All such policies shall be
issued by companies of recognized responsibility licensed to do business in New
York State, and all such policies shall contain a provision whereby the same
cannot be cancelled or modified unless Owner and any additional named insured
are given at least twenty (20) days' prior written notice of such cancellation
or modification.
(b) Owner may from time to time require that the amount of the
insurance to be maintained by Tenant under Subparagraph (a) be increased, to the
amount which is then customarily required by prudent owners of similar office
buildings in Manhattan, including rent insurance.
(c) Tenant and Owner shall secure an appropriate clause in, or
an endorsement upon, each of their respective insurance policies covering or
applicable (in the case of Tenant) to the demised premises and the personal
property, fixtures and equipment located therein or thereon and the Building (in
the case of Owner), pursuant to which Owner and
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Tenant's 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 without invalidating the coverage under said insurance
policy. The waiver of subrogation or permission for waiver of any claim obtained
by Tenant shall extend to Owner and its agents and employees and each mortgagee
of Owner. Each party hereby releases the other party, with respect to any claim
(including a claim for negligence) which it might otherwise have against the
other party, for loss, damage or destruction with respect to its property
occurring during the term of this lease to the extent to which it is, or is
required to be, insured under a policy or policies containing a waiver of
subrogation as provided in the preceding subdivisions of this section.
45. TENANT'S WORK AND ALTERATIONS. Supplementing the provisions of
Article 3 of this lease:
(a) Owner shall not unreasonably withhold its consent to any
non-structural changes, alterations, installations, additions or improvements
(collectively, "Tenant's Work") provided such Tenant's Work is performed only by
contractors or mechanics approved by Owner, which approval shall not be
unreasonably withheld, and (i) in the reasonable opinion of Owner, the Tenant's
Work will not materially adversely affect the proper functioning of the
Building's mechanical, electrical, sanitary, plumbing, heating,
air-conditioning, ventilating, utility or any other service systems, (ii) the
Tenant's Work will not result in a violation of, or require a change in, any
certificate of occupancy applicable to the demised premises or the Building,
(iii) the outside appearance, usefulness or rentability of the Building or any
part thereof will not be affected in any way, and such Tenant's Work shall not,
in the sole opinion of Owner, exercised in good faith, weaken or impair
(temporarily or permanently) the structure of the demised premises or the
Building either in the course of the making of such Tenant's Work or upon its
completion, and (iv) no part of the Building outside of the demised premises
will be physically affected. Notwithstanding anything to the contrary contained
herein, Owner's consent shall not be required for purely decorative or cosmetic
Tenant's Work.
(b) Prior to commencing any Tenant's Work in the demised
premises, Tenant shall submit to Owner for Owner's written approval complete
drawings, plans and specifications (collectively, "Tenant's Plan") for such
Tenant's Work. Tenant's Plan shall be fully detailed and shall show complete
dimensions, shall not be in conflict with Owner's basic plans for the Building,
shall not require any changes in the structure of the Building and shall not be
in violation of any laws, orders, rules or regulations of any governmental
department or bureau having jurisdiction of the demised premises.
Notwithstanding the foregoing, with respect to any Tenant's Work which is purely
decorative in nature and which does not require the filing of plans and
specifications with any governmental authority, Tenant shall only be required to
submit a schematic design or description in reasonably sufficient detail for
Owner to determine the work to be performed.
(c) After submission to Owner of Tenant's Plan, Owner shall
within fifteen (15) days thereafter either approve same or shall set forth in
writing the particulars in which Owner does not approve same (in default of
which Owner shall be deemed to have approved same), in which latter case Tenant
shall, within fifteen (15) business days after Owner's notification, return to
Owner appropriate corrections thereto. Such corrections shall be subject to
Owner's approval, such approval to be subject to the same standards set forth in
Section 45(a) above. Tenant shall pay to Owner, within 10 days after being
billed and as additional rent, any reasonable out-of-pocket charges or expenses
Owner may incur in reviewing Tenant's Plan, except that Tenant shall not be
required to pay the charges or expenses incurred by Owner in reviewing Tenant's
Plan for any Tenant's Work in preparing the demised premises for Tenant's
initial occupancy thereof. Tenant agrees that any review or approval by Owner of
Tenant's Plans is solely for Owner's benefit, and without any representation or
warranty whatsoever to Tenant with respect to the adequacy, legality,
correctness or efficiency thereof or otherwise.
(d) Tenant further agrees that if Tenant makes any changes in
Tenant's Plan subsequent to its approval by Owner and if Owner consents to such
changes (such consent
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to be subject to the same standards set forth in Section 45(a) above), Tenant
shall pay to Owner all costs and expenses caused by such changes, which Owner
may incur or sustain by reason of delays or changes necessitated in the
performance by Owner of any construction or work it is performing in the
Building; it being understood and agreed, however, that Owner shall have the
right to refuse to consent to any such changes (in accordance with the standards
set forth in Section 45(a) above). Any charges payable under this section shall
be paid by Tenant from time to time within twenty (20) days after notice as
additional rent, whether or not the lease term shall have commenced.
(e) If Tenant fails to correct Tenant's Plan in any particular
as hereinabove required, Owner shall, after fifteen (15) days written notice,
have the right to make such corrections on Tenant's behalf; but the foregoing
right shall not preclude the exercise by Owner of any other right or remedy
which it may have in such event.
(f) Following compliance by Tenant with its obligations under
the foregoing sections of this Article, Tenant, at its sole cost and expense,
shall procure all required permits and authorizations of all municipal
departments and governmental subdivisions having jurisdiction over the demised
premises and shall thereafter timely commence Tenant's Work in order to complete
same within a reasonable period of time. Tenant's Work shall be diligently
pursued and shall be performed in a good and workmanlike manner at Tenant's sole
cost and expense in accordance with Tenant's Plan as approved by Owner.
(g) Tenant agrees that in the performance of Tenant's Work (i)
neither Tenant nor its agents or employees shall unreasonably interfere with the
work being done by Owner and its agents and employees, (ii) that Tenant shall
comply with any reasonable work schedule, rules and regulations proposed by
Owner, its agents or employees, (iii) that the labor employed by Tenant shall be
harmonious and compatible with the labor employed by Owner in the Building, it
being agreed that if in Owner's reasonable judgment the labor is incompatible
Tenant shall forthwith upon Owner's demand withdraw such labor from the demised
premises, (iv) that Tenant shall procure and deliver to Owner workmen's
compensation, public liability, property damage and such other insurance
policies, in such amounts as shall be reasonably acceptable to Owner in
connection with Tenant's Work, and shall upon Owner's request cause Owner to be
named as an additional insured thereunder (it being agreed that Owner shall not
request public liability insurance to exceed $5 million hereunder), (v) that
Tenant shall hold Owner harmless from and against any and all claims arising
from or in connection with any act or omission of Tenant or its agents or
employees, (vi) that Tenant's Work shall be performed in accordance with the
approved Tenant's Plan and in compliance with the laws, orders, rules and
regulations of any governmental department or bureau having jurisdiction of the
demised premises, and (vii) that Tenant shall promptly pay for Tenant's Work in
full and shall not permit any lien to remain a lien on the demised premises or
the Building after receiving Notice of same.
(h) Intentionally Omitted.
(i) (a) Except as set forth in subsection (b) hereof all
fixtures installed or used by Tenant in the demised premises shall be fully paid
for by Tenant in cash and shall not be subject to conditional bills of sale,
chattel mortgage or other title retention agreements which are recorded or filed
against the Building ("Chattel Mortgages").
(b) Tenant may execute and deliver Chattel Mortgages
provided and upon the conditions that:
(1) the holder of the Chattel Mortgage ("Holder")
shall have agreed (A) to give notice to Owner of any default by Tenant under the
terms and provisions of the Chattel Mortgage, and (B) prior to the exercise of
any remedies by the Holder, to give Owner a reasonable period after said notice
to cure (if Owner elects, but without any obligation of Owner to do so) any
default by Tenant under the Chattel Mortgage;
(2) Tenant shall not assign, sublet, mortgage,
hypothecate, pledge, lease or otherwise transfer or encumber Tenant's interest
in this lease or the demised
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premises or the Building in connection with, or as collateral or security for,
the payment and performance of Tenant under the terms of the Chattel Mortgage,
and any chattel mortgage shall be subject and subordinate to all superior leases
and to all superior mortgages and any extensions and modifications thereof which
may now or hereafter affect the demised premises or the Building;
(3) Any sums or costs expended or incurred by
Owner in curing any of Tenant's defaults under the Chattel Mortgage shall be
payable, within twenty (20) days after demand, by Tenant as additional rent
hereunder;
(4) In the event of default by the Tenant under
the Chattel Mortgage, the Holder shall agree that in the event the Holder
removes the equipment or fixtures secured by said Chattel Mortgage that the
Holder will restore the demised premises to the condition of same existing
immediately prior to such removal and shall repair any and all damage caused by
such removal and restoration.
46. ELECTRIC ENERGY. (a) Electric current will be supplied to the
demised premises at the commencement of the term in accordance with the
provisions of Subparagraph (b) of this Paragraph 46. Except for customary office
equipment, Tenant agrees that it will make no electrical installations,
alterations, additions or changes to electrical equipment or appliances without
the prior written consent of Owner in each instance, which consent shall not be
unreasonably withheld or delayed; provided that Tenant's use of electric current
shall never exceed the capacity of the then existing feeders to the Building or
the risers or wiring installation serving the demised premises. Tenant will at
all times comply with the rules, regulations, terms and conditions applicable to
service, equipment, wiring and requirements of the public utility supplying
electricity to the Building. In the event that, in Owner's sole judgment,
Tenant's electrical requirements necessitate installation of additional risers,
feeders or other proper and necessary equipment, the same shall be installed by
Owner at Tenant's sole expense, which shall be chargeable and collectible as
additional rent and paid within twenty (20) days after rendition of a ▇▇▇▇ to
Tenant therefor. Rigid conduit only will be allowed. Owner shall not be liable
in any way to Tenant for any failure or defect in the supply or character of
electrical service furnished to the demised premises by reason of any
requirement, act or omission of the public utility serving the Building or for
any other reason not attributable to Owner's negligence.
(b) Electric current will be supplied by Owner to service
Tenant's usual operating equipment and Tenant will pay Owner or Owner's
designated agent, as additional rent for such service, one hundred seven (107%)
percent of the actual cost payable by Owner for supplying electric current for
Tenant's consumption. Owner covenants and agrees to supply at least the same
quantity of electric current to the demised premises throughout the term of the
Lease as is currently supplied to the demised premises as of the date hereof.
Tenant's usage shall be determined by meter or submeter installed by Owner, at
Owner's expense, for the purpose of measuring such consumption, which meter or
submeter shall separately measure only Tenant's usage and demand of electric
energy (except in the case of a subletting of a portion of the demised
premises). Where more than one meter measures the service to Tenant, the service
rendered through each meter shall be computed and billed conjunctively in
accordance with the provisions hereinabove set forth. Bills for electric energy
shall be rendered at such time as Owner may elect and the amount, as computed
from the meter, shall be, and be paid as, additional rent. Such bills shall be
paid by Tenant within thirty (30) days after the same are rendered and failure
to pay shall be an event of default. If any tax is imposed upon Owner's receipts
from the sale or resale of electric current to Tenant by any federal, state or
municipal authority, Tenant agrees that where permitted by law, Tenant's
Percentage of such taxes shall be passed on to, and included in the ▇▇▇▇ of, and
paid by Tenant to Owner.
47. OWNER'S SERVICES. Supplementing the provisions of Article 29 of
this lease:
(a) Owner will, when and to the extent reasonably requested by
Tenant, furnish additional elevator or heating services upon such terms and
conditions as shall be
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determined by Owner in its sole reasonable discretion; and Tenant shall pay to
Owner within thirty (30) days after notice as additional rent Owner's then
Building standard charge for such additional services. Tenant shall remove any
and all of its refuse and rubbish from the Building. Notwithstanding anything to
the contrary contained herein, Tenant shall not be required to pay any freight
elevator charges during its initial move-in.
(b) Owner, at its expense, shall furnish adequate water to the
floor on which the demised premises are located for drinking, lavatory and
cleaning purposes. Such water shall be furnished at the Building wet columns and
the cost of piping and other equipment or facilities required to supply such
water to the demised premises from such wet columns shall be paid by Tenant to
the extent not set forth in the Tenant's Plan. If Tenant uses water for any
other purpose, Owner may install and maintain, at Tenant's expense, meters to
measure Tenant's consumption of water for such other purposes. Tenant shall
reimburse Owner for the quantities of water shown on such meters and Owner's
reasonable charge for the production of any hot water, within thirty (30) days
after notice.
(c) As part of Owner's Base Building Work, Owner will furnish
to Tenant two (2) new 15 ton air-cooled air-conditioning units to service only
the demised premises and associated distribution equipment (the "AC Equipment")
and shall assign to Tenant any and all applicable warranties relating to such AC
Equipment, to the extent Owner shall be in actual possession of the same. The
installation of the AC Equipment shall be performed by Tenant at its sole cost
and expense and in accordance with the terms of this lease. Other than Owner's
obligation throughout the term of this lease for repairs to and, if necessary,
replacement of the condenser except where such repairs or replacement results
from Tenant's acts or failure to properly maintain the condenser, Tenant shall
be solely responsible for the maintenance, operation and repair of the AC
Equipment and shall replace parts as and when necessary, and shall obtain and
keep in full force and effect during the term of this lease a service contract,
with a contractor or contractors approved by Owner (such approval not to be
unreasonably withheld or delayed), to service and maintain the AC Equipment.
Upon Owner's request, Tenant shall deliver to Owner a duplicate copy of each
such service contract within ten (10) days of such request. In addition to the
foregoing, Tenant shall pay all electricity costs in connection therewith which
shall be calculated pursuant to Article 46 hereof. Such air-conditioning system
shall at all times be the property of Owner, Tenant shall abide by all
reasonable regulations which Owner may prescribe for the proper functioning and
protection of the air-conditioning system and Tenant shall deliver such system
to Owner in good working order on the Expiration Date, ordinary wear and tear
excepted.
(d) Tenant shall, at its sole cost and expense, in a manner
and with cleaning personnel reasonably acceptable to Owner, clean the demised
premises daily on each business day. If Tenant shall utilize the Building trash
carting service, Tenant shall pay Owner the established charge therefor,
provided such charge is comparable to the charge for such services in other
first class buildings located in mid-town Manhattan. Owner shall have no
obligation to provide cleaning services in the demised premises.
(e) Tenant shall, at its sole cost and expense, and in
accordance with the terms and conditions set forth in this lease, install a
Class-E fire alarm distribution system within the demised premises to a point of
connection designated by Owner. Owner shall, at its sole cost and expense, "tie
in" Tenant's distribution system to the building Class-E fire alarm system.
(f) Owner shall maintain the Building in a manner consistent
with that of other office buildings located on Park Avenue South.
48. INDEMNIFICATION. Tenant shall indemnify and hold harmless Owner
and Owner's mortgagee and its and their respective partners, directors,
officers, agents and employees from and against any and all claims arising from
or in connection with (a) the conduct or management of the demised premises or
of any business therein, or any work or thing whatsoever done, or any condition
created (other than by Owner) in the demised premises during the term of this
lease; (b) any act, omission or negligence of Tenant or any of its subtenants or
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licensees or its or their partners, directors, officers, agents, employees or
contractors; (c) any accident, injury or damage whatever (unless caused solely
by Owner's negligence or willful act or that of Owner's employees, agents or
contractors) occurring in, at or upon the demised premises; and (d) any breach
or default by Tenant in the full and prompt payment and performance of Tenant's
obligations under this lease; together with all costs, expenses and liabilities
incurred in or in connection with each such claim or action or proceeding
brought thereon, including, without limitation, all reasonable attorneys' fees
and expenses (less any amount recovered by Owner as a result of the payment to
Owner of any insurance proceeds). In case any action or proceeding be brought
against Owner and/or its mortgagee and/or its or their partners, directors,
officers, agents and/or employees by reason of any such claim, Tenant, upon
notice from Owner or such mortgagee, shall resist and defend such action or
proceeding (by counsel reasonably satisfactory to Owner or such mortgagee,
counsel designated by Tenant's insurance carrier being hereby deemed reasonably
satisfactory).
49. LATE CHARGE. In addition to any other remedies Owner may have
under this lease, and without reducing or adversely affecting any of Owner's
rights and remedies hereunder, if any Fixed Rent or additional rent or damages
payable hereunder by Tenant to Owner are not paid within five (5) days of the
date when due, Tenant shall pay Owner as additional rent, on or before the first
day of the following month, six cents (6(cents)) for each dollar so overdue in
order to defray Owner's administrative and other costs in connection therewith.
50. BROKER. Owner and Tenant warrant and represent to each other
that they have not dealt with any broker except NEWMARK & COMPANY REAL ESTATE,
INC. (the "Broker") in connection with this lease and that they have had no
conversations or negotiations with any broker except the Broker concerning the
leasing of the demised premises. Owner and Tenant agree to indemnify and hold
each other harmless against and from any claims for any brokerage commissions
and all costs, expenses and liabilities in connection therewith, including,
without limitation, attorneys' fees and expenses, arising out of any
conversations or negotiations had by the respective indemnitor with any broker
or finder, however characterized, other than the Broker. Owner covenants and
agrees that Owner shall be solely responsible for the payment of any commission
or other compensation due to the Broker in connection with this lease and Owner
shall indemnify, defend and hold harmless Tenant from and against any and all
claims for commission, fee or other compensation by the Broker, including,
without limitation, reasonable attorneys' fees and charges.
51. MISCELLANEOUS PROVISIONS. (a) No agreement shall be effective to
change, modify, waive, release, discharge, terminate or effect an abandonment of
this lease, in whole or in part, unless such agreement is in writing, refers
expressly to this lease and is signed by the party against whom enforcement of
the change, modification, waiver, release, discharge, termination or
effectuation of the abandonment is sought.
(b) Except as otherwise expressly provided in this lease, the
obligations of this lease shall bind and benefit the successors and assigns of
the parties hereto with the same effect as if mentioned in each instance where a
party is named or referred to; provided, however, that no violation of the
provisions of Article 43 shall operate to vest any rights in any successor or
assignee of Tenant.
(c) If Owner or a successor in interest is an individual
(which term as used herein includes aggregates of individuals, such as joint
ventures, general or limited partnerships or associations), such individual
shall be under no personal liability with respect to any of the provisions of
this lease, and if such individual is in breach or default with respect to its
obligations under this lease, Tenant shall look solely to the equity of such
individual in the Land and Building of which the demised premises form a part
for the satisfaction of Tenant's remedies and in no event shall Tenant attempt
to secure any personal judgment against Owner or against any partner, principals
(disclosed or undisclosed), employee or agent of Owner by reason of such default
by Owner.
(d) The submission by Owner of the lease in draft form shall
be deemed submitted solely for Tenant's consideration and not for acceptance and
execution. Such submis-
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sion shall have no binding force or effect and shall confer no rights nor impose
any obligations, including brokerage obligations, on either party unless and
until both Owner and Tenant shall have executed the lease and duplicate
originals thereof shall have been delivered to the respective parties.
(e) If any of the Fixed Rent or additional rent payable under
the terms and provisions of this lease shall be or become uncollectible, reduced
or required to be refunded because of any act or law enacted by a governmental
authority, Tenant shall enter into such agreement(s) and take such other steps
(without additional expense to Tenant) as Owner may request and as may be
legally permissible to permit Owner 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 Fixed 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 Owner promptly upon being billed, to the maximum extent
legally permissible, an amount equal to (i) the Fixed Rent and/or additional
rent which would have been paid during such rent restriction 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.
(f) As a further inducement to Owner to enter into this lease
with Tenant, Tenant hereby agrees that with respect to the service of a notice
of petition or petition upon Tenant by Owner in any proceeding commenced by
Owner against Tenant under the Real Property Actions and Proceedings Law of the
State of New York, service of such notice of petition or petition in any such
proceedings shall be effective if made upon Tenant at the demised premises,
irrespective of the fact that Tenant's principal office or principal place of
business, or any other office or place of business of Tenant is located at a
place other than the demised premises.
(g) This lease shall be deemed to have been jointly prepared
by both of the parties hereto, and any ambiguities or uncertainties herein shall
not be construed for or against either of them.
(h) In no event shall Tenant be entitled to make, nor shall
Tenant make any claim, and Tenant hereby waives any claim, for money damages,
nor shall Tenant claim any money damages by way of set-off, counterclaim or
defense, based upon any claim or assertion by Tenant that Owner has unreasonably
withheld or unreasonably delayed any consent or approval to any matter where
such consent or approval is required pursuant to this lease, but Tenant's sole
remedy shall be an action or proceeding to enforce any such provision, or for
specific performance, injunction or declaratory judgment, and such remedy shall
be available only in those cases where Owner has expressly agreed in writing not
to unreasonably withhold or delay its consent or where as a matter of law Owner
may not unreasonably withhold or delay its consent. The parties agree that any
claim or assertion by Tenant that Owner has unreasonably withheld or
unreasonably delayed any consent or approval to any matter where such consent or
approval is required pursuant to this lease, may be brought by means of
expedited arbitration pursuant to and in accordance with the rules of the
American Arbitration Association.
(i) It is understood and agreed that Owner shall be under no
obligation hereunder until this lease has been executed by Owner and delivered
to Tenant. Owner's deposit of any checks delivered by Tenant in connection with
Tenant's execution of this lease shall not constitute Owner's execution and
delivery of this lease.
(j) If Tenant is a partnership (or is comprised of two (2) or
more persons, individually and/or as copartners of a partnership) or if Tenant's
interest in this lease shall be assigned to a partnership (or to two (2) or more
persons, individually and/or as copartners of a partnership) pursuant to the
terms hereof (any such partnership and such persons are referred to in this
Paragraph as "Partnership Tenant"), the following provisions shall apply to such
Partnership Tenant: (a) the liability of each of the parties comprising
Partnership Tenant shall be joint and several; (b) each of the parties
comprising Partnership Tenant hereby consents in advance to, and agrees to be
bound by, any written instrument which may hereafter be executed,
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changing, modifying or discharging this lease, in whole or in part, or
surrendering all or any part of the demised premises to Owner or renewing or
extending this lease and by any notices, demands, requests or other
communications which may hereafter be given, by Partnership Tenant or by any of
the parties comprising Partnership Tenant; (c) any bills, statements, notices,
demands, requests or other communications given or rendered to Partnership
Tenant or to any of the parties comprising Partnership Tenant shall be deemed
given or rendered to Partnership Tenant and to all such parties and shall be
binding upon Partnership Tenant and all such parties; (d) if Partnership Tenant
shall admit new partners, all of such new partners shall, by their admission to
Partnership Tenant, be deemed to have assumed performance of all of the terms,
covenants and conditions of the lease on Tenant's part to be observed and
performed; (e) Partnership Tenant shall give prompt notice to Owner of the
admission of any such new partners, and upon demand of Owner, shall cause each
such new partner to execute and deliver to Owner an agreement in form
satisfactory to Owner, wherein each such new partner shall assume performance of
all of the terms, covenants and conditions of this lease on Tenant's part to be
observed and performed (but neither Owner's failure to request any such
agreement nor the failure of any such new partner to execute or deliver any such
agreement to Owner shall vitiate the provisions of subdivision (d) of this
Article). Notwithstanding the foregoing, the provisions of this Article shall
not apply to the estate of any deceased partner of Partnership Tenant.
(k) Tenant, its permitted assignees and sublessees, may have
up to fifteen (15) listings in any Building directory located in the Building
lobby at no cost to Tenant. Owner, from time to time, but not more frequently
than once a month, shall, at Tenant's expense, make such changes in the listings
as Tenant shall request.
(l) In case suit shall be brought because of the breach of
this lease on the part of Tenant or Owner and a breach shall be established, the
prevailing party shall be entitled to recover all expenses incurred therefor,
including reasonable attorneys' fees.
52. DELIVERY OF THE DEMISED PREMISES. (a) Except as otherwise set
forth in this lease, Tenant hereby accepts possession of the demised premises
broom-clean and otherwise in their "as is" condition and free of any other
tenants and personal property, Tenant acknowledging that the demised premises
and the Building are in good and satisfactory condition as of the date hereof
and that Owner shall not be obligated to perform any work whatsoever to prepare
them for Tenant, except as otherwise set forth in this lease.
(b) Tenant waives any right to rescind this lease under
Section 223(a) of the Real Property Law of the State of New York and further
waives any damages which may result from any delay in delivery of possession of
the demised premises.
(c) Tenant acknowledges that the existing sprinkler system in
the demised premises may not comply with existing applicable legal requirements.
Tenant agrees to accept possession of the demised premises irrespective of such
non-compliance and shall, in connection with the Tenant's Work, install a
sprinkler system which shall comply with all applicable legal requirements.
53. SECURITY DEPOSIT. (a) Tenant has deposited with Owner the sum of
$130,333.32 as security for the full and faithful performance and observance by
Tenant of Tenant's covenants and obligations under this lease. The term
"Security Amount" shall mean the amount initially deposited by Tenant with Owner
(ie., $130,333.32). If Tenant defaults beyond applicable notice and cure periods
in the full and prompt payment and performance of any of Tenant's covenants and
obligations under this lease, including, but not limited to, the payment of
Fixed Rent and additional rent, Owner may, but shall not be required to, use,
apply or retain the whole or any part of the security so deposited and the
interest accrued thereon, if any, to the extent required for the payment of any
Fixed Rent and additional rent, including, but not limited to, any damages or
deficiency in the reletting of the demised premises, whether such damages or
deficiency accrue before or after summary proceedings or other re-entry by
Owner. If Owner shall so use, apply or retain the whole or any part of the
security or the interest accrued
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thereon, if any, Tenant shall upon demand immediately deposit with Owner a sum
equal to the amount so used, applied or retained, as security as aforesaid
failing which Owner shall have the same rights and remedies as for the
non-payment of Fixed Rent beyond the applicable grace period. If Tenant shall
fully and faithfully comply with all of Tenant's covenants and obligations under
this lease, the security or any balance thereof, with the interest thereon, to
which Tenant is entitled, shall be returned or paid over to Tenant within ten
(10) days after the Expiration Date and after delivery to Owner of the demised
premises. In the event of any sale, transfer or leasing of Owner's interest in
the Building whether or not in connection with a sale, transfer or leasing of
the Land to a vendee, transferee or lessee, Owner shall have the right to
transfer the unapplied part of the security and the interest thereon, if any, to
which Tenant is entitled, to the vendee, transferee or lessee, and Owner shall
thereupon be released by Tenant from all liability for the return or payment
thereof, and Tenant shall look solely to the new owner for the return or payment
of the same. The provisions of the preceding sentence shall apply to every
subsequent sale, transfer or leasing of the Building, and any successor of Owner
may, upon a sale, transfer, leasing or other cessation of the interest of such
successors in the Building, whether in whole or in part, pay over any unapplied
part of said security to any vendee, transferee or lessee of the Building and
shall thereupon be relieved of all liability with respect thereto. Except in
connection with a permitted assignment of this lease, Tenant shall not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security or any interest thereon to which Tenant is entitled, and neither Owner
nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance. In any event, in the
absence of evidence satisfactory to Owner of an assignment of the right to
receive the security, or the remaining balance thereof, Owner may return the
security to the original Tenant regardless of one or more assignments of this
lease.
(b) Any cash security held under the terms of this lease shall be
placed by Owner in a segregated interest bearing bank account, at a banking
institution with a retail branch in New York County, New York and which is
covered by FDIC insurance, for the security deposits being maintained by Owner
and will not be co-mingled with other general funds of Owner. Except for a one
(1%) percent per annum administrative fee which Owner may retain, all interest
that may accrue thereon shall belong to Tenant and shall be paid to Tenant not
more often than once annually. The obligation to pay any taxes, whether income
or otherwise, related to or affecting any interest earned of such security shall
be the sole responsibility of Tenant. Tenant shall, promptly after demand,
furnish Owner with its tax identification number.
(c) (i) For purposes of this Article, the term "Letter of Credit"
means a clean, unconditional and irrevocable letter of credit which (i) is
issued by a bank or other institution acceptable to Owner having an office in
New York City at which such letter of credit may be presented for payment, (ii)
is for an amount equal to the Security Amount, (iii) expires not less than one
(1) year from the date of issuance thereof, (iv) is payable to Owner upon
presentation only of a sight draft and written certification to the issuer of
such letter of credit stating that Owner is entitled to draw down such letter of
credit in accordance with the terms of this lease, (v) provides for the
automatic extension of such letter of credit for additional periods of one (1)
year from the initial and each future expiration date thereof (the last such
extension to provide for the continuance of such letter of credit for at least
forty-five (45) days beyond the Expiration Date) unless the bank issuing same
gives Owner written notice by certified mail, return receipt requested, of its
intention not to renew such letter of credit not less than sixty (60) days prior
to the initial or any future expiration date of such Letter of Credit, and (vi)
is otherwise in form and substance reasonably acceptable to Owner.
(ii) Tenant shall have the right, either (i) in lieu of
the funds required to be deposited with Owner pursuant to Section 53(a), or (ii)
at any time thereafter in substitution for such funds, to deposit and maintain
with Owner as the security deposit referred to in Section 53(a) a Letter of
Credit in the amount of the Security Amount. Each Letter of Credit (or the
proceeds thereof) shall be deposited and maintained with Owner as security for
the faithful performance and observance by Tenant of the terms, provisions and
conditions of this lease, and if(x) any default beyond applicable notice and
cure periods occurs under this lease, or (y) Owner transfers its right, title
and interest under this lease to a third party and the bank issuing such Letter
of Credit does not consent to the transfer of such Letter of Credit to such
third party, or (z)
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notice is given by the bank issuing such Letter of Credit that it does not
intend to renew the same, as above provided, and Tenant shall fail to replace
the same prior to the expiration thereof with a new Letter of Credit, then, in
any such event, Owner may draw on such Letter of Credit, and the proceeds of
such Letter of Credit (the "Letter of Credit Proceeds") shall then be held and
applied as security (and be replenished, if necessary) as provided in this
Article; provided that, with respect the circumstance described in clause (y)
above, prior to drawing on such Letter of Credit, Owner shall provide Tenant
with fifteen (15) days prior written notice and Tenant shall have the right,
within such fifteen (15) day period, to substitute a replacement Letter of
Credit which satisfies the requirement of clause (y), and with respect to the
circumstance described in clause (z) above, Owner shall endeavor to give written
notice prior to drawing on such Letter of Credit and Tenant shall have the right
to substitute a replacement Letter of Credit, provided if the substitution is
not made by the fifteenth (15th) day prior to the expiration of the Letter of
Credit, Owner may draw on such existing Letter of Credit. In the event that the
Letter of Credit shall be drawn upon and applied on account of Tenant's
obligations under this lease, Tenant shall immediately replenish such security
so that Owner shall at all times have a Security Deposit (hereinafter defined)
in the amount of the Security Amount. All cash or Letters of Credit expressly
permitted under the terms of this lease shall, when and for so long as same
shall be deposited and maintained with Owner as security for the faithful
performance and observance by Tenant of the terms, provisions and conditions of
this lease in accordance with the terms hereof, be included in the definition of
"Security Deposit" for all purposes of this Article. If Tenant shall fully and
punctually comply with all of the terms and conditions of this lease, then the
Letter of Credit then in Owner's possession (provided that same has not been
drawn upon pursuant to this Article) shall be returned to Tenant within thirty
(30) days after the expiration or termination of this lease and delivery of
exclusive possession of the demised premises to Owner in accordance herewith.
Tenant shall pay all costs and expenses related to or in any way arising out of
or in connection with the performance by Tenant of any of its obligations under
this Article, including, without limitation, the issuance, delivery,
replacement, existence, drawdown or any other disposition or circumstance
involving or affecting the Letter of Credit. Tenant hereby agrees to indemnify
and hold Owner harmless from and against any and all liability, loss, or damage
which Owner may incur (a) under any Letter of Credit deposited hereunder
(including, without limitation, any replacement thereof or Letter of Credit
Proceeds therefrom), or (b) as a result of any claims or demands which may be
asserted against Owner by the issuer of any Letter of Credit, except to the
extent such claims arise as a result of Owner's negligence or wilful
misconduct.
54. MAINTENANCE AND REPAIRS. Supplementing the provisions of Article
4 of this lease:
(a) Owner shall use reasonable efforts to enclose any pipes or
conduits installed by Owner within existing floors, walls, ceilings, columns or
closets.
(b) In performing all work, making all repairs and installing
all pipes and conduits, Owner shall use reasonable efforts to minimize
interference with Tenant's normal business operations (although Owner shall not
thereby be required to incur overtime or other additional expense to do so).
(c) Upon completion of such work, repairs and installations,
Owner shall use reasonable efforts to prevent a material reduction in the usable
area of the demised premises and the affected portions of the demised premises
shall, to the extent reasonably possible, be restored to substantially their
condition immediately prior to the performance of such work, repairs or
installations.
55. DAMAGE AND DESTRUCTION. Further supplementing the provisions of
Article 9 of this lease, anything in Article 9 to the contrary notwithstanding:
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56
(a) Within sixty days after any event of damage or destruction
to the demised premises by fire or other casualty, Owner shall deliver to Tenant
an estimate setting forth its estimate as to the reasonable time required to
repair such damage.
(b) If the estimated time period as determined pursuant to the
provisions of subsection (a) of this Article 55 exceeds six (6) months from the
date of such casualty, Tenant may elect to terminate this lease by notice to
Owner not later than thirty (30) days following the receipt of such
determination. If Tenant makes such election, the term of this lease shall
expire upon the thirtieth (30th) day after notice of such election is given by
Tenant and Tenant shall vacate the demised premises and surrender the same to
Owner. If(i) Tenant fails to make such election or is not permitted to make such
election because the estimate is less than six (6) months, and (ii) if, as a
result of a strike, labor dispute, unavailability of materials, war, fire, act
of God or other cause beyond Owner's reasonable control, Owner fails to repair
the demised premises within six (6) months after the expiration of the estimated
time period for repair as finally determined pursuant to the provisions of
subsection (a) of this Article 55, Tenant may elect to terminate this lease by
notice to Owner not later than thirty (30) days following the expiration of such
additional six-month period. If Tenant makes such election, the term shall
expire upon the thirtieth (30th) day after notice of such election is given by
Tenant and Tenant shall vacate the demised premises and surrender the same to
Owner. Tenant shall have no further options to cancel this lease under this
Article 55.
56. INTENTIONALLY OMITTED.
57. ACCESS TO THE PREMISES. Supplementing the provisions of Article
13 of this lease, anything to the contrary in Article 13 notwithstanding, Owner
shall give Tenant reasonable advance notice of proposed entry or access (except
in the event of an emergency, in which event such right of entry and access
shall be unrestricted), so as to enable Tenant to have a representative present
on all such occasions if Tenant wishes to do so.
58. BUILDING ALTERATIONS. Supplementing the provisions of Article 20
of this lease, Owner's right to change the arrangement and/or location of public
entrances, passageways, doors, doorways, corridors, elevators, toilets,
staircases or other public parts of the Building shall be exercised so as to not
materially reduce the usable areas of the demised premises or materially
adversely affect Tenant's access thereto.
59. HAZARDOUS MATERIALS. Tenant shall not cause or permit any
Hazardous Materials (hereinafter defined) to be used, stored, transported,
released, handled, produced or installed in, on or from the demised premises or
the Building except in accordance with law. "Hazardous Materials", as used
herein, shall mean any flammables, explosives, radioactive materials, hazardous
wastes, hazardous and toxic substances or related materials, asbestos or any
material containing asbestos, or any other substance or material as defined by
any Federal, state or local environmental law, ordinance, rule or regulation,
including, without limitation, the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, the Resource Conservation
and Recovery Act, as amended, and in the regulations adopted and publications
promulgated pursuant to each of the foregoing. In the event of a breach of the
provisions of this Paragraph, Owner shall have the right, in addition to all
other rights and remedies of Owner under this lease or at law, to require Tenant
to remove any such Hazardous Materials from the demised premises in the manner
prescribed for such removal by laws and requirements of any public authorities.
Owner represents, that as of the date hereof, Owner has not brought in to the
demised premises asbestos or asbestos containing materials and shall deliver the
demised premises free thereof. The provisions of this Paragraph shall survive
the expiration or termination of this lease. Owner shall deliver to Tenant,
within 30 days of Tenant's written request therefor, ACP-5 documentation with
respect to the demised premises.
60. CLEANING AND RUBBISH REMOVAL. Tenant shall provide its own
cleaning services and shall remove or cause to be removed all rubbish from the
demised premises at its own cost and expense, during the term hereof using
contractors approved by Owner which approval shall not be unreasonably withheld
or delayed and with respect to all rubbish to be removed from the demised
premises, shall place the same or cause the same to be placed in the
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57
freight elevator area in watertight bags or containers or in such other bags or
containers as Owner shall from time to time reasonably designate. Tenant agrees
to segregate all rubbish in accordance with rules and regulations reasonably
established by Owner.
61. NOTICES. Supplementing the provisions of Paragraph 28 hereof:
Except as otherwise in this lease provided, all notices hereunder shall be in
writing and shall be served by registered or certified mail, return receipt
requested, or by overnight courier service regularly maintaining a record of
receipt to any party hereto at the address hereinabove set forth; such notices
to Tenant shall be sent to the attention of ▇▇. ▇▇▇▇▇ ▇▇▇▇, with a copy of any
such notice sent to Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq. Any such notice shall be deemed given and
effective on the date set forth on the return receipt or the date delivered by
overnight courier service.
62. OWNER'S CONTRIBUTION. (a) Provided Tenant shall not be in
default under this lease beyond any notice and grace period, or promptly upon
cure of any default, Owner shall reimburse Tenant for the cost of Tenant's Work
performed by Tenant to prepare the demised premises for Tenant's use and
occupancy (including furniture and fixtures) in an amount up to $230,000.00
("Owner's Contribution") upon the terms and conditions hereinafter set forth.
Within ten (10) business day after completion of Tenant's Work, Owner shall pay
to Tenant Owner's Contribution upon the delivery to Owner of (1) a certificate
of the licensed architect or engineer employed by Tenant to supervise Tenant's
Work certifying (i) the total cost of Tenant's Work (which certification shall
substantiate such total costs to the reasonable satisfaction of Owner) and (ii)
that Tenant's Work has been performed and completed substantially in accordance
with the provisions of this lease and the plans and specifications theretofore
approved by Owner, (2) evidence satisfactory to Owner establishing that all sums
due and owing to contractors, subcontractors and materialmen have been paid,
including general releases and final lien waivers and (3) that all governmental
authorities (including without limitation the New York City Department of
Buildings) have issued final approval of the work as built and occupancy of the
demised premises.
(b) The right to receive reimbursement for the cost of
Tenant's Work as set forth in this Article 62 shall be for the exclusive benefit
of Tenant, it being the express intent of the parties hereto that in no event
shall such right be conferred upon or for the benefit of any third party,
including, without limitation, any contractor, subcontractor, materialman,
laborer, architect, engineer, attorney or any other person, firm or entity.
(c) If the cost of Tenant's Work shall exceed the Owner's
Contribution, Tenant shall be responsible for the excess. If the Owner's
Contribution shall exceed the cost of Tenant's Work performed in the demised
premises for the period from the Commencement Date to the first anniversary,
Tenant shall thereafter have no right, title or interest in the excess.
IN WITNESS WHEREOF, Owner and Tenant have executed this lease
as of the day and year first above written.
[SIGNATURE PAGES TO FOLLOW].
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58
352 P.A.S. Associates, Owner
Witness for Owner: By: CABLE BUILDING ASSOC., GENERAL PARTNER
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ASSOC., GENERAL PARTNER
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------- ---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: PARTNER
THE NPD GROUP, INC., Tenant
Witness for Tenant:
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------- ---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Sr Vice President
▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
COUNTY OF NEW YORK )
On the 1 day of March in the year 2000 before me, the undersigned,
personally appeared ▇▇▇▇ ▇. ▇▇▇▇▇, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature(s) on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Notary Public
▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public, State of New York
No. 02PO5041841
Qualified In New York County
Commission Expires April 10, 2001
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60
TENANT
UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Within New York State)
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
On the 24th day of February in the year 2000 before me, the undersigned,
personally appeared ▇▇▇▇▇ ▇▇▇▇, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Signature and Office of individual
taking acknowledgment.
▇▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public, State of New York
No. 01ED6028007
Qualified In Nassau County
Commission Expires July 19, 2001
UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Outside of New York State)
State of _______________
County of_____________ ) ss.:
On the _____ day of_______________ in the year ______,before me, the
undersigned, personally appeared _________________________,personally known to
me or proved to me on the basis of satisfactory evidence to be the individual(s)
whose name(s) is (are) subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their capacity(ies), that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument, and that
such individual made such appearance before the undersigned in the
___________________. (Insert the city or other political subdivision and the
state or country or other place the acknowledgment was taken).
________________________________________
Signature and Office of individual
taking acknowledgment.
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SCHEDULE "A"
------------
Fixed Rent
Period Fixed Rent
------ ----------
Lease Years 1 through 5: $391,000.00 per year, payable $32,583.33 per
month.
Lease Years 6 to and including $414,000.00 per year, payable $34,500.00 per
the Expiration Date: month.
62
EXHIBIT "A"
-----------
Floor Plan
(Attached)
63
EXHIBIT "A"
-----------
Floor Plan
[GRAPHIC OMITTED]
64
EXHIBIT "B"
Owner's Base Building Work
Owner shall, at its sole cost and expense, and in accordance with applicable
law, perform the following work:
1. Owner shall demolish the entire 6th Floor in a manner consistent with the
Building's standards;
2. Owner shall install new Building standard lot line windows for those windows
designated on Exhibit A; and
3. Owner shall install new Building standard ADA compliant men's and women's
bathrooms in Building standard locations.
4. Owner will furnish to Tenant two (2) new 15 ton air-cooled air-conditioning
units to service only the demised premises and associated distribution
equipment.
65
352 P.A.S. ASSOCIATES
c/o M.D. Carlisle Construction Corp.
▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
March 1, 2000
The NPD Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Lease (the "Lease"), dated as of March 1,2000, of the 6th floor at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Building") between
352 P.A.S. Associates ("Landlord") and The NPD Group,
Inc.("Tenant"')
Ladies and Gentlemen:
Enclosed are two fully executed originals of the Lease for your files.
Landlord is in receipt of a letter of credit which Tenant has proposed to
substitute for its check previously submitted as and for the security deposit
due under the Lease. As you know, the proposed letter of credit does not conform
to the requirements of Article 53 of the Lease and contains terms which are
objectionable to Landlord for reasons discussed by our respective counsel.
This will confirm that Tenant has represented to Landlord that Tenant has
applied for and will obtain an amendment to the letter of credit to revise the
terms of such letter of credit to conform to Article 53 of the Lease (as
modified hereby) and to Landlord's other reasonable requests. Provided an
acceptable amendment to the letter of credit is delivered to Landlord, Landlord
agrees to waive the Lease requirement that such letter of credit automatically
renew until the date which is forty five (45) days after the Lease expiration
date, provided such letter of credit states that the issuing bank will notify
Landlord no less than 60 days prior to the letter of credit expiration date, and
further provided that Tenant deposit substitute security at such time so that
Tenant, at all times during the Lease term, maintains the required security as
provided for in Article 53 of the Lease.
Landlord shall exchange the previously deposited security deposit check
with Tenant upon receipt of an acceptable amendment to the letter of credit as
aforesaid.
66
Should Tenant fail to use best efforts to promptly deliver an acceptable
amendment of letter of credit to Landlord, the same shall be a default under the
Lease.
Sincerely,
352 P.A.S. ASSOCIATES
By: CABLE BUILDING ASSOC., GENERAL PARTNER
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ASSOC., GENERAL PARTNER
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: PARTNER
Agreed and Accepted this 1st day of March, 2000.
The NPD Group, Inc.
By:____________________________
Name:
Title:
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