New York-New York-489 Fifth Avenue Lease - 489 Fifth LLC and Pogo.com Inc.
COPY
________________________________________________________ 2/94
STANDARD FORM OF OFFICE LEASE
The Real Estate Board of New York, Inc.
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Agreement of Lease, made as of this 25th day of May 2000, between 489 Fifth
LLC having an address c/o Tri-Realty Management Corp., 275 Madison Avenue, 30th
Floor, New York, New York 10016 party of the first part, hereinafter referred to
as OWNER, and Pogo.com Inc. with an address at 489 Fifth Avenue, New York, NY
10017 party of the second part, hereinafter referred to as TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from
Owner the entire third floor in the building known as 489 Fifth Avenue in the
Borough of New York, City of New York, for the term of five years (subject to
the terms set forth in the rider attached hereto) (or until such term shall
sooner cease and expire as hereinafter provided) to commence on the fifteenth
day of June two thousand, and to the end on the thirtieth day of May two
thousand and five both dates inclusive, at an annual rental rate of
See attached rider
which Tenant agrees to pay in lawful money of the United States which shall be
legal tender in payment of all debts and dues, public and private, at the time
of payment, in equal monthly installments in advance on the first day of each
month during said term, at the office of Owner or such other place as Owner may
designate, without any set off or deduction whatsoever, except that Tenant shall
pay the first monthly installment(s) on the execution hereof (unless this lease
be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent: 1. Tenant shall pay the rent as above and as hereinafter provided.
Occupancy: 2. Tenant shall use and occupy demised premises for
General and executive offices 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. Subject to the prior written consent of
Owner, and to the provisions of this article, Tenant, at Tenant's expense, may
make alterations, installations, additions or improvements which are
non-structural and which 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. 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 workman's
compensation, general liability, personal and property damage insurance as Owner
may require. 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 thereafter,
at Tenant's expense, by payment or filing the bond required by law. All fixtures
and all paneling, partitions, railings and like installations, installed in the
premises at any time, either by Tenant or by Owner on Tenant's behalf, shall,
upon installation, become the property of Owner and shall remain upon and be
surrendered with the demised premises unless Owner, by notice to Tenant no later
than twenty days prior to the date fixed as the termination of this lease,
elects to relinquish Owner's right thereto and to have them removed by Tenant,
in which event the same shall be removed from the premises by Tenant prior to
the expiration of the lease, at Tenant's expense. Nothing in this Article shall
be construed to give Owner title to or to prevent Tenant's removal of trade
fixtures, moveable office furniture and equipment, but upon removal of any such
from the premises or upon removal of other installations as may be required by
Owner, Tenant shall immediately and at its expense, repair and restore the
premises to the condition existing prior to installation and repair any damage
to the demised premises or the building due to such removal. All property
permitted or required to be removed, by Tenant at the end of the term remaining
in the premises after Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or may be removed from
the premises by Owner, at Tenant's expense.
Maintenance and Repairs:
4. Tenant shall, throughout the term of this lease, take good care of the
demised premises and the fixtures and appurtenances therein. Tenant shall be
responsible for all damage or injury to the demised premises or any other part
of the building and the systems and equipment thereof, whether requiring
structural or nonstructural repairs caused by or resulting from carelessness,
omission, neglect or improper conduct of Tenant, Tenant's subtenants, agents,
employees, invitees or licensees, or which arise out of any work, labor, service
or equipment done for or supplied to Tenant or any subtenant or arising out of
the installation, use or operation of the property or equipment of Tenant or any
subtenant. Tenant shall also repair all damage to the building and the demised
premises caused by the moving of Tenant's fixtures, furniture and equipment.
Tenant shall promptly make, at Tenant's expense, all repairs in and to the
demised premises for which Tenant is responsible, using only the contractor for
the trade or trades in question, selected from a list of at least two
contractors per trade submitted by Owner. Any other repairs in or to the
building or the facilities and systems thereof for which Tenant is responsible
shall be performed by Owner at the Tenant's expense. Owner shall 1. 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. 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. It is
specifically agreed that Tenant shall not be entitled to any setoff or reduction
of rent by reason of any failure of Owner to comply with the covenants of this
or any other article of this Lease. Tenant agrees that Tenant's sole remedy at
law in such instance will be by way of an action for damages for breach of
contract. The provisions of this Article 4 shall not apply in the case of fire
or other casualty which are dealt with in Article 9 hereof.
Window Cleaning:
5. Tenant will not clean nor require, permit, suffer or allow any window in
the demised premises to be cleaned from the outside in violation of Section 202
of the Labor Law or any other applicable law or of the Rules of the Board of
Standards and Appeals, or of any other Board or body having or asserting
jurisdiction.
Requirements of Law, Fire 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 use or manner of use thereof,
(including Tenant's permitted use) or, with respect to the building if arising
out of Tenant's use or manner of use of the premises or the building (including
the use permitted under the lease). Nothing herein shall require Tenant to make
structural repairs or alterations unless Tenant has, by its manner of use of the
demised premises or method of operation therein, violated any such laws,
ordinances, orders, rules, regulations or requirements with respect thereto.
Tenant may, after securing Owner to
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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 such laws, ordinances, orders, rules, regulations or requirements
provided same is done with all reasonable promptness and provided same is done
with all reasonable promptness and provided such appeal shall not subject Owner
to prosecution for a criminal offense or constitute a default under any lease or
mortgage under which Owner may be obligated, or cause the demised premises or
any part thereof to be condemned or vacated. Tenant shall not do or permit any
act or thing to be done in or to the demised premises which is contrary to law,
or which will invalidate or be in conflict with public liability, fire or other
policies of insurance at any time carried by or for the benefit of Owner with
respect to the demised premises or the building of which the demised premises
form a part, or which shall or might subject Owner to any liability or
responsibility to any person or for property damage. Tenant shall not keep
anything in the demised premises except as now or hereafter permitted by the
Fire Department, Board of Fire Underwriters, Fire Insurance Rating Organization
or other authority having jurisdiction, and then only in such manner and such
quantity to as not to increase the rate for fire insurance applicable to the
building, nor use the premises in a manner which will increase the insurance
rate for the building or any property located therein over that in effect prior
to the commencement of Tenant's occupancy. Tenant shall pay all costs, expenses,
fines, penalties, or damages, which may be imposed upon Owner by reason of
Tenant's failure to comply with the provisions of this article and if by reason
of such failure the fire insurance rate shall, at the beginning of this lease or
at any time thereafter, be higher than it otherwise would be, then Tenant shall
reimburse Owner, as additional rent hereunder, for that portion of all fire
insurance premiums thereafter paid by Owner which shall have been charged
because of such failure by Tenant. 2. In any action or proceeding wherein Owner
and Tenant are parties, a schedule or "make-up" of rate for the building or
demised premises issued by the New York Fire Insurance Exchange, or other body
making fire insurance rates applicable to said premises shall be conclusive
evidence of facts therein stated and of the several items and charges in the
fire insurance rates then applicable to said premises. Tenant shall not place a
load upon any floor of the demised premises exceeding the floor load per square
foot area which is was designed to carry and which is allowed by law. Owner
reserves the right to prescribe the weight and position of all safes, business
machines and mechanical equipment. Such installations shall be placed and
maintained by Tenant, at Tenant's expense, in settings sufficient, in Owner's
judgement, to absorb and prevent vibration, noise and annoyance.
Subordination:
7. This lease is subject and subordinate to all ground or underlying leases
and to all mortgages which may now or hereafter affect such leases or the real
property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property,
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall from time to time execute promptly any certificate that Owner may
request.
Property Loss, Damage Reimbursement Indemnity:
8. Owner or its agents shall nor be liable for any damage to property of
Tenant or of others entrusted to employees of the building, nor for loss of or
damage to any property of Tenant by theft or otherwise, nor for any injury or
damage to persons or property resulting from any cause of whatsoever nature,
unless caused by or due to the negligence of Owner, its agents, servants or
employees. Owner or its agents will not be liable for any such damage caused by
other Tenant's or persons in, upon or about said building or caused by
operations in construction of any private, public or quasi public work. If at
any time any windows of the demised premises are temporarily closed, darkened or
bricked up (or permanently closed, darkened or bricked up, if required by law)
for any reason whatsoever including, but not limited to Owner's own acts, Owner
shall not be liable for any damage Tenant may sustain thereby and Tenant shall
not be entitled to any compensation therefor, nor abatement or diminution of
rent nor shall the same release Tenant from its obligations hereunder nor
constitute an eviction. Tenant shall indemnify and save harmless Owner against
and from all liabilities, obligations, damages, penalties, claims, costs and
expenses for which Owner shall not be reimbursed by insurance, including
reasonable attorneys fees, paid, suffered or incurred as a result of any breach
by Tenant, Tenant's agents, contractors, employees, invitees, or licensees, of
any covenant or condition of this lease, or the carelessness, negligence or
improper conduct of the Tenant, Tenant's agents, contractors, employees,
invitees or licensees. Tenant's liability under this lease extends to the acts
and omissions of any sub-tenant, and any agent, contractor, employee, invitee or
licensee of any sub-tenant. In case any action or proceeding is brought against
Owner by reason of any such claim, Tenant, upon written notice from Owner, will,
at Tenant's expense, resist or defend such action or proceeding by counsel
approved by Owner in writing, such approval not to be unreasonably withheld.
Destruction, Fire and Other Casually:
9. (a) If the demised premises or any part thereof shall be damaged by fire
or other casualty, Tenant shall give immediate notice thereof to Owner and this
lease shall continue in full force and effect except as hereinafter set forth.
(b) If the demised premises are partially damaged or rendered partially unusable
by fire or other casualty, the damages thereto shall be repaired by and at the
expense of Owner and the rent and other items of additional rent, until such
repair shall be substantially completed, shall be apportioned from the day
following the casualty according to the part of the premises which is usable.
(c) If the 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 further or (whether or not
the demised premises are damaged in whole or in part) if the building shall be
to 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
Rider to be added If necessary
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. 3. (e) Nothing
contained hereinabove shall relieve Tenant from liability that may exist as a
result of damage from fire or other casualty. Notwithstanding the foregoing,
including Owner's obligation to restore under subparagraph (b) above, each party
shall look first to any insurance in its favor before making any claim against
the other party for recovery for loss or damage resulting from fire or other
casualty, and to the extent that such insurance is in force and collectible and
to the extent permitted by law, Owner and Tenant each hereby releases and waives
all right of recovery with respect to subparagraphs (b), (d), and (e) above,
against the other or any one claiming through or under each of them by way of
subrogation or otherwise. The release and waiver herein referred to shall be
deemed to include any loss or damage to the demised premises and/or to any
personal property, equipment, trade fixtures, goods and merchandise located
therein. The foregoing release and waiver shall be in force only if both
realtors' 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 benefiting from the waiver shall pay such premium within ten days after
written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions
hereof with respect to waiver of subrogation. Tenant acknowledges that Owner
will not carry insurance on Tenant's furniture and/or furnishings or any
fixtures or equipment, improvements, or appurtenances removable by Tenant and
agrees that Owner will not be obligated to repair any damage thereto or replace
the same. (f) Tenant hereby waives the provisions of Section 227 of the Real
Property Law and agrees that the provisions of this article shall govern and
control in lieu thereof.
Eminent Domain:
1O. If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purpose, then
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceeding and Tenant shall have no claim for the
value of any unexpired term of said lease and assigns to Owner, Tenant's entire
interest in any such award. Tenant shall have the right to make an independent
claim to the condemning authority for the value of Tenant's moving expenses and
personal property, trade fixtures and equipment, provided Tenant is entitled
pursuant to the terms of the lease to remove such property, trade fixture and
equipment at the end of the term and provided further such claim does not reduce
Owner's award.
Assignment, Mortgage, 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, under-tenant or occupant, and apply the net amount collected to the
rent herein reserved, but no such assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the
assignee, under-tenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Owner to an assignment or underletting shall not in
any wise be construed to relieve Tenant from obtaining the express consent in
writing of Owner to any further assignment or underletting.
Electric Current:
12. Rates and conditions in respect to submetering or rent inclusion, as
the case may be, to be added in RIDER attached hereto, Tenant covenants and
agrees that at all times its use of electric current shall not exceed the
capacity of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which, in Owner's
opinion, reasonably exercised, will overload such installations or interfere
with the use thereof by other Tenants of the building. The change at any time
of the character of electric service shall in no wise make Owner liable or
responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain.
Access to Premises:
13. Owner or Owner's agents shall have the right (but shall not be
obligated) to enter the demised premises in any emergency at anytime, and, at
other reasonable times, to examine the same and to make such repairs,
replacements and improvements as Owner may deem necessary and reasonably
desirable to the demised premises or to any other portion of the building or
which Owner may elect to perform. Tenant shall permit Owner to use and maintain
and replace pipes and conduits in and through the demised premises and to erect
new pipes and conduits therein provided they are concealed within the walls,
floor, or ceiling. Owner may, during the progress of any work in the demised
premises, take all necessary materials and equipment into said premises without
the same constituting an eviction nor shall the Tenant be entitled to any
abatement of rent while such work is in progress nor to any damages by reason of
loss or interruption of business or otherwise. Throughout the term hereof Owner
shall have the right to enter the demised premises at reasonable hours 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
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same to prospective Tenants. If Tenant is not present to open and permit an
entry into the demised premises, Owner or Owner's agents may enter the same
whenever such entry may be necessary or permissible by master key or forcibly
and provided reasonable care is exercised to safeguard Tenant's property, such
entry shall not render Owner or its agents liable therefor, nor in any event
shall the obligations of Tenant hereunder be affected. If during the last month
of the term Tenant shall have removed all or substantially all of Tenant's
property therefrom Owner may immediately enter, alter, renovate or redecorate
the demised premises without limitation or abatement of rent, or incurring
liability to Tenant for any compensation and such act shall have no effect on
this lease or Tenant's obligations hereunder.
Vault, Vault Space, Area:
14. No Vaults, vault space or area, whether or not enclosed or covered, not
within the property line of the building is leased hereunder, anything contained
in or indicated on any sketch, blue print or plan, or anything contained
elsewhere in this lease to the contrary notwithstanding. Owner makes no
representation as to the location of the property line of the building. All
vaults and vault space and all such areas not within the property line of the
building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if 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
abasement of rent, nor shall such revocation, diminuition 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) Anythng elsewhere in this lease to the contrary notwithstanding,
this lease may be cancelled by Owner by the sending of a written notice to
Tenant within a reasonable time after the happening of any one or more of the
following events: (1) the commencement of a case in bankruptcy or under the laws
of any state naming Tenant as the debtor: or (2) the making by Tenant of an
assignment or any other arrangement for the benefit of creditors under any state
statute. Neither Tenant nor any person claiming through or under Tenant, or by
reason of any statute or order of court, shall thereafter be entitled to
possession of the premises demised but shall forthwith quit and surrender the
premises. If this lease shall be assigned in accordance with its terms, the
provisions of this Article 16 shall be applicable only to the party then owning
Tenant's interest in this lease.
(b) it is stipulated and agreed that in the event of the termination of the
lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any other
provisions of this lease to the contrary, be entitled to recover from Tenant as
and for liquidated damages an amount equal to the difference between the rent
reserved hereunder for the unexpired portion of the term demised and the fair
and reasonable rental value of the demised premises for the same period. In the
computation of such damages the difference between any installment of rent
becoming due hereunder after the date of termination and the fair and reasonable
rental value of the demised premises for the period for which such installment
was payable shall be discounted to the date of termination at the rate of four
percent (4%) per annum. If such premises or any part thereof be re-let by the
Owner for the unexpired term of said lease, or any part thereof, before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amount of rent reserved upon such re-letting shall be deemed to be
the fair and reasonable rental value for the part or the whole of the premises
to re-let during the term of the re-letting. Nothing herein contained shall
limit or prejudice the right of the Owner to prove for and obtain as liquidated
damages by reason of such termination, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved, whether or not such amount
be greater, equal to, or less than the amount of the difference referred to
above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this lease
other than the covenants for the payment of rent or additional rent; or if the
demised premises become vacant or deserted: 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 ss 235 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; or if Tenant shall make default in the payment
of the rent reserved herein or any item of additional rent herein mentioned or
any part of either or in making any other payment herein required: then and in
any of such events Owner may without notice, re-enter the demised premises
either by force or otherwise, and dispossess Tenant by summary proceedings or
otherwise, and the legal representative of Tenant or other occupant of demised
premises and remove their effects and hold the premises as if this lease had not
been made, and Tenant hereby waives the service of notice of intention to
re-enter or to institute legal proceedings to that end. If Tenant shall make
default hereunder prior to the date fixed as the commencement of any renewal or
extension of this lease, Owner may cancel and terminate such renewal or
extension agreement by written notice.
Remedies of Owner and Waiver of Redemption:
18. In case of any such default, re-entry, expiration and/or dispossess by
summary proceedings or other wise, (a) the rent shall become due thereupon and
be paid up to the time of such re-entry, dispossess and/or expiration. (b) Owner
may re-let the premises or any part or parts thereof, either in the name of
Owner or otherwise, for a term or terms, which may at Owner's option be less
than or exceed the period which would otherwise have constituted the balance of
the term of this lease and may grant concessions or free rent or charge a higher
rental than that in this lease, and/or (c) Tenant or the legal representatives
of Tenant shall alto pay Owner as liquidated damages for the fallure 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 an 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, as 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 nor 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 reletting, 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 as
law or in equity as if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in equity. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or dispossessed for
any cause, or in the event of Owner obtaining possession of demised premises, by
reason of the violation by Tenant of any of the covenants and conditions of this
lease, or otherwise. 4.
Fees and Expenses:
19. If Tenant shall default in the observance or performance of any term or
covenant on Tenant's part to be observed or performed under or by virtue of any
of the terms or provisions in any article of this lease, after notice if
required and upon expiration of any applicable grace period if any, (except in
an emergency), then, unless otherwise provided elsewhere in this lease, Owner
may immediately or at any time thereafter and without notice perform the
obligation of Tenant thereunder. If Owner, in connection with the 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 to 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 (l0) days of rendition of any bill
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.
There shall be no allowance to Tenant for diminution of rental value and no
liability on the part of Owner by reason of inconvenience, annoyance or injury
to business arising from Owner or other Tenants making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
such controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants.
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 building and the demised
premises and is thoroughly acquainted with their condition and agrees to take
the same "as is" and acknowledges that the taking of possession of the demised
premises by Tenant shall be conclusive evidence that the said premises and the
building of which the same form a part were in good and satisfactory condition
at the time such posseision was to 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
<PAGE>
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:
22. Upon the expiration or other termination of the term of this lease,
Tenant shall quit and surrender to Owner the demised premises, broom clean, in
good order and condition, ordinary wear and damages which Tenant is not required
to repair as provided elsewhere in this lease excepted, and Tenant shall remove
all its property. Tenant's obligation to observe or perform this covenant shall
survive the expiration or other termination of this lease. If the last day of
the term of this Lease or any renewal thereof, falls on 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 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. 5.
No Waiver:
25. The failure of Owner to seek redress for violation of, or to insist
upon the strict performance of any covenant or condition of this lease or of any
of the Rules or Regulations, set forth or hereafter adopted by Owner, shall not
prevent a subsequent act which would have originally constituted a violation
from having all the force and effect of an original violation. The receipt by
Owner of rent 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 its obligations under this lease or to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment,
fixtures, or other materials if Owner is prevented or delayed from to 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 bill, 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
Rider to be added if necessary.
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 bill 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.
Services Provided by Owners:
29. As long as Tenant is not in default under any of the covenants of this
lease beyond the applicable grace period provided in this lease for the curing
of such defaults, Owner shall provide: (a) necessary elevator facilities on
business days from 8 a.m. to 6 p.m. and have one elevator subject to call at all
other times; (b) heat to the demised premises when and as required by law, on
business days from 8 a.m. to 6 p.m.; (c) water for ordinary lavatory purposes,
but if Tenant uses or consumes water for any other purposes or no unusual
quantities (of which fact Owner shall be the sole judge), Owner may install a
water meter as 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) cleaning service for the
demised premises on business days at owners expense provided that the same are
kept in order by Tenant. If, however, said premises are to be kept clean by
Tenant, it shall be done at Tenant's sole expense, in a manner reasonably
satisfactory to Owner and no one other than persons approved by Owner shall be
permitted to enter said premises or the building of which they are a part for
such purpose. Tenant shall pay Owner the cost of removal of any of Tenant's
refuse and rubbish from the building; (e) If the demised premises are serviced
by Owners air conditioning/cooling and ventilating system, air conditioning/
cooling will be furnished to tenant from May 15th through September 30th on
business days (Mondays through Fridays, holidays excepted) from 8:00 am. to 6:00
p.m., and ventilation will be furnished on business days during the aforesaid
hours except when air conditioning/cooling is being furnished as aforesaid. If
Tenant requires air conditioning/cooling or ventilation for more extended hours
or on Saturdays, Sundays or on holidays, as defined under Owner's contract with
Operating Engineers Local 94-94A, Owner will furnish the same at Tenant's
expense. RIDER to be added in respect to rates and conditions for such
additional service; (f) 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.
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, barber shop, or for other
similar purposes or for manufacturing. The term "Owner" means a landlord or
lessor, and as used in this lease means only the owner, or the mortgagee in
possession, for the time being of the land and building (or the owner of a lease
of the building or of the land and building) of which the demised premises form
a part, so that in the event of any sale or sales of said land and building or
of said lease, or in the event of a lease of said building, or of the land and
building, the said Owner shall be and hereby is entirely freed and relieved of
all covenants and obligations of Owner hereunder, and it shall be deemed and
construed without further agreement between the parties or their successors in
interest, or between the parties and the purchaser, as any such sale, or the
said lessee of the building, or of the land and building, that the purchaser or
the lessee of the building has assumed and agreed to carry out any and all
covenants and obligations of Owner, hereunder. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their technical legal
meaning. The term "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 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
<PAGE>
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.
Security:
34. Tenant has deposited with Owner the sum of $110,000.00 as security for
the faithful performance and observance by Tenant of the terms, provisions and
conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent or any other sum as to
which Tenant in default or for any sum which Owner may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this lease, including but not limited to, any
damages or deficiency in the re-letting of the premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Owner. In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this lease, the security
shall be returned to Tenant after the date fixed at the end of the Lease and
after delivery of entire possession of the demised premises to Owner. In the
event of a sale of the land and building or leasing of the building, of which
the demised premises form a part, Owner shall have the right to transfer the
security to the vendee or lessee and Owner shall thereupon be released by Tenant
from all liability for the return of such security; and Tenant agrees to look to
the new Owner solely for the return of said security, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to
Space to be filled in or deleted.
a new Owner. Tenant further covenants that it will not assign or encumber or
attempt to assign or encumber the monies deposited herein as security and that
neither Owner nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
Estoppel Certificate:
35. Tenant, at any time, and from time to time, upon as least 10 days'
prior notice by Owner, shall execute, acknowledge and deliver to Owner, and/or
to any other person, firm or corporation specified by Owner, a statement
certifying that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same as in full force and effect as
modified and stating the modifications), stating the dates to which the rent and
additional rent have been paid, and stating whether or not there exists any
default by Owner under this Lease, and, if so, specifying each such default.
Successors and Assigns:
36. The covenants, conditions and agreements contained in this lease
shall bind and inure to the benefit of Owner and Tenant and their respective
heirs, distributees, executors, administrators, successors, and except as
otherwise provided in this lease, their assigns. Tenant shall look only to
Owners 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.
489 Fifth LLC
Witness for Owner: By: /s/ Kenneth Grant
-----------------------------------
Name: Kenneth Grant
Title: Pres.
--------------------------------- ---------------------------------------
Pogo.com Inc.
Witness for Tenant; By: /s/ Mark Mitchell
----------------------------------
Name: Mark Mitchell
Title: Senior Vice Pres.
--------------------------------- ---------------------------------------
LINDA GREENBERG
NOTARY PUBLIC STATE OF NEW YORK
NO. 4707597
QUALIFIED IN NASSAU COUNTY
COMMISSION EXPIRES APRIL 30, 2001
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. an 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 New York
On this 25th day of May, 2000 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 Senior VP of Pogo.com, the corporation described in and which
executed the foregoing instrument, as TENANT; that he known 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 describcd in and who, as
TENANT, executed the foregoing instrument and acknowledged to me that he
executed the same.
-------------------------------------
<PAGE>
GUARANTY
FOR VALUE RECEIVED and in consideration for, and as an inducement to Owner
making the within lease with Tenant the undersigned guarantees to Owner, Owner's
successors and assigns, the full performance and observance of all the
covenants, conditions and agreements, therein provided to be performed and
observed by Tenant, including the "Rules and Regulations" as therein provided,
without requiring any notice of non-payment, non-perfomance, or non-observance,
or proof, or notice, or demand, whereby to charge the undersigned therfor, all
of which the undersigned hereby expressly waives and expressly agrees that the
validity of this agreement and the obligations of the guarantor hereunder shall
in no wise be terminated, affected or impaired by reason of the assertion by
Owner against Tenant of any of the rights or remedies undersigned further
covenants and agrees that this guaranty shall remain and continue in full force
and effect as to any renewal, modification or extension of this lease and during
any period when Tenant is occupying the premises as a "statutory tenant." As a
further inducement to Owner to make this lease and in consideration thereof,
Owner and the undersigned covenant and agree that in any action or proceeding
brought by either Owner or the undersigned covenant and agree that in any action
or proceeding brought by either Owner or the undersigned against the other on
any matters whatsoever arising out of, under, or by virtue of the terms of this
lease or of this guarantee that Owner and the undersigned against the other on
any matters whatsoever arising out of, under, or by virtue of the terms of this
lease or of this guarantee that Owner and the undersigned shall and do hereby
waive trial by jury.
Dated: ______________________________ 19__
-------------------------------------
Guarantor
-------------------------------------
Witness
-------------------------------------
Guarantor's Residence
-------------------------------------
Business Address
-------------------------------------
Firm Name
STATE OF NEW YORK ) ss.:
COUNTY OF )
On this _____________ day of _______________, 19__, before me personally came
_____________________________ to me known and known to me to be the individual
described in, and who executed the foregoing Guaranty and acknowledged to me
that he executed the same.
------------------------------------
Notary
IMPORTANT -- PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS
LEASE IN ACCORDANCE WITH ARTICLE 33.
1. The sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by any
Tenant or used for any purpose other than for ingress or egress from the demised
premises and for delivery of merchandise and equipment in a prompt and efficient
manner using elevators and passageways desingated for such delivery by Owner.
There shall not be used in any space, or in the public hall of the building,
either by any Tenant or by jobbers or others in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and
sideguards. If said premises are situated on the ground floor of the building,
Tenant thereof shall further, at Tenant's expense, keep the sidewalk and curb in
front of said premises clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for any
purpose other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any window of
the building and no Tenant shall sweep or throw or permit to be swept or thrown
from the demised premises any dirt or other substances into any of the corridors
or halls, elevators, or out of the doors or windows or stairways of the building
and Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the demised premises, or permit or suffer the demised
premises to be occupied or used in a manner offensive or objectionable to Owner
or other occupants of the building by reason of noise, odors, and/or vibrations,
or interfere in any way with other Tenants or those having business therein,
nor shall any bicycles, vehicles, animals, fish, or birds be kept in or about
the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls of the
building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premise if the
same is visible from the outside of the premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance door
of the premises. In the event of violation of the foregoing by any Tenant, Owner
may remove same without any liability, and may charge the expense incurred by
such removal to Tenant or Tenants violating this rule. Interior signs on doors
and directory tablet shall be inscribed, painted or affixed for each Tenant by
Owner at the expense of such Tenant, and shall be of a size, color and style
acceptable by Owner.
6. No Tenant shall mark, paint, drill into, or in any way deface any part of the
demised premises or the building of which they form a part. No boring, cutting
or stringing of wires shall be permitted, except with the prior written consent
of Owner, and as Owner may direct. No Tenant shall lay linoleum, or other
similar floor covering, so that the same shall come in direct contact with the
floor of the demised premises, and, if linoleum or other similar floor covering
is desired to be used an interlining of builder's deadening felt shall be first
affixed to the floor, by a paste or other material, soluble in water, the use
of cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing locks
or mechanism thereof. Each Tenant must, upon the termination of his Tenancy,
restore to Owner all keys of stores, offices and toilet rooms, either furnished
to, or otherwise procured by, such Tenant, and in the event of the loss of any
keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to an removed from the premises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease or which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and each
Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building all persons who do not
present a pass to the building signed by Owner. Owner will furnish passes to
persons for whom any Tenant requests same in writing. Each Tenant shall be
responsible for all persons for whom he requests such pass and shall be liable
to Owner for all acts of such persons. Tenant shall not have a claim against
Owner by reason of Owner excluding from the building any person who does not
present such pass.
11. Owner shall have the right to prohibit any advertising by any Tenant which
in Owner's opinion, tends to impair the reputation of the building or its
desirability as a building for offices, and upon written notice from Owner,
Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the demised
premises, any inflammable, combustible, explosive, or hazardous fluid, material,
chemical or substance, or cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors to permeate in or
emanate from the demised premises.
13. If the building contains central air conditioning and ventilation, Tenant
agrees to keep all windows closed at all times and to abide by all rules and
regulations issued by Owner with respect to such services. If Tenant requires
air conditioning or ventilation after the usual hours, Tenant shall give notice
in writing to the building superintendent prior to 3:00 p.m. in the case of
services required on week days, and prior to 3:00 p.m. on the day prior in the
case of after hours service required on weekends or on holidays. Tenant shall
cooperate with Owner in obtaining maximum effectiveness of the cooling system by
lowering the closing venetian blinds and/or drapes and curtains when the sun's
rays fall directly on the windows of the demised premises.
14. Tenant shall not move any safe, heavy machinery, heavy equipment, bulky
matter, or fixtures into or out of the building without Owner's prior written
consent. If such safe, machinery, equipment, bulky matter or fixtures requires
special handling, all work in connection therewith shall comply with the
Administrative Code of the City of New York and all other laws and regulations
applicable thereto and shall be done during such hours as Owner may designate.
15. Refuse and Trash. (1) Compliance by Tenant. Tenant covenants and agrees, at
its sole cost and expense, to comply with all present and future laws, orders,
and regulations of all state, federal, municipal, and local governments,
departments, commissions and boards regarding the collection, sorting,
separation and recycling of waste products, garbage, refuse and trash. Tenant
shall sort and separate such waste products, garbage, refuse and trash into such
categories as provided by law. Each separately sorted category of waste
products, garbage, refuse and trash shall be placed in separate receptacles
reasonably approved by Owner. Such separate receptacles may, at Owner's option,
be removed from the demised premises in accordance with a collection schedule
prescribed by law. Tenant shall remove, or cause to be removed by a contractor
acceptable to Owner, at Owner's sole discretion, such items as Owner may
expressly designate. (2) Owner's Rights in Event of Noncompliance. Owner has the
option to refuse to collect or accept from Tenant waste products, garbage,
refuse or trash (a) that is not separated and sorted as required by law or (b)
which consists of such items as Owner may expressly designate for Tenant's
removal, and to require Tenant to arrange for such collection at Tenant's sole
cost and expense, utilizing a contractor satisfactory to Owner. Tenant shall pay
all costs, expenses, fines, penalties, or damages that may be imposed on Owner
or Tenant by reason of Tenant's failure to comply with the provisions of this
Building Rule 15, and, at Tenant's sole cost and expense, shall indemnity,
deferred and hold Owner harmless (including reasonable legal fees and expenses),
from and against any actions, claims and suits arising from such noncompliance,
utilizing counsel reasonably satisfactory to Owner.
Address
Premises
================================================================================
To
================================================================================
STANDARD FORM OF
OFFICE LEASE
The Real Estate Board of New York, Inc.
Copyright 1994. All rights Reserved.
Reproduction in whole or in
part prohibited.
================================================================================
Dated 19
Rent Per Year
Rent Per Month
Term
From
To
Drawn by ____________________________________________________________________
Checked by __________________________________________________________________
Entered by __________________________________________________________________
Approved by _________________________________________________________________
================================================================================
<PAGE>
INSERTS TO OFFICE LEASE BETWEEN
489 FIFTH, LLC AND POGO.COM INC.
FOR PREMISES LOCATED ON THE 3RD FLOOR OF
489 FIFTH AVENUE~ NEW YORK, NEW YORK
------------------------------------
1. , at Owners expense
2. , provided, however, that notwithstanding the foregoing, Tenant shall not
be liable or required to pay any amount whatsoever with regard to
conditions that were in existence when Tenant took possession of the
demised premises.
3, if Owner has kept Tenant reasonably informed regarding the progress
toward being substantially ready to as to enable Tenant to make
reasonable arrangements regarding temporary space it may have taken
4, Notwithstanding anything hereinto the contrary, Owner shall make
reasonable commercial efforts to relet the demised premises.
5. If owner has not tendered possession of the demised premises to Tenant on
or before September 15, 2000, Tenant may cancel this Lease by written
notice to Owner which cancellation shall be effective immediately and
in such event Owner shall immediately return to Tenant all amounts paid
by Tenant.
<PAGE>
Rider To Lease Dated May, 2000,
Between 489 Fifth LLC, Owner,
and Pogo.com Inc., Tenant
------------------------
37. Conflicts. In the event of any conflict between any of the
provisions of this Rider and any of the provisions, printed or typewritten, of
the printed portion of this lease, the provisions of this Rider shall control.
38. As Is. (a) Notwithstanding any provision of this lease to the
contrary, Tenant shall accept possession of the demised premises "AS IS" on the
date the term of this lease shall commence and Owner shall have no obligation to
furnish, render or supply any work, labor, services, equipment, materials,
decorations, furniture or fixtures to make the demised premises ready or
suitable for Tenant's use or occupancy, except that Owner shall, at its expense,
in a building standard manner, using building standard materials, as soon as
practicable after the existing tenant vacates and surrenders the demised
premises, perform the following work ("Owner's Work"):
1. Clean window sills and window blinds and
2. Paint and carpet entire premises.
(b) The annual fixed rent under this lease (which amount includes
$16,500.00 per annum in respect of electric energy furnished to the demised
premises) shall be $264,000 per annum from June 15, 2000 through May 30, 2005.
(c) Prepayment of Rent. Tenant shall pay two and one-half months rent,
including electric, ($55,000) upon the execution and delivery of this Lease. The
payment made by Tenant on the date of execution shall be credited on a pro-rata
basis against the rent payment for the first two and one-half months. Tenant
shall pay the remaining prorated portion, if any, of the third month's rent on
or before the first day of such month. A prorated monthly installment shall be
paid if the Term of this Lease terminates on a day other than the last day of a
month.
(d) Early Termination. Should the Lease terminate for any reason before
May 30, 2005, Tenant shall pay to Owner the unamortized portion of the costs of
(i) Owner's work done in or to Demised Premises at any time during the term of
the Lease including any such work done at the commencement of the Term, (ii) any
commissions paid by Owner with respect to this Lease, and (iii) all legal fees
incurred by owner with respect to this Lease.
39. Real Estate Taxes. (a) For the purpose of this Article:
(i) The term "Taxes" shall mean (1) the real
estate taxes, vault charges, assessments and special assessments imposed on the
building and/or the land on which the building is erected (excluding business
improvement district charges) and (2) any expenses incurred by Owner in
contesting the same. If at any time during the term of this lease the methods of
taxation prevailing on the date hereof shall be altered to that in lieu of, or
as an addition to, or as a substitute for, the whole or any part of such real
estate taxes, vault charges, assessments and special assessments now imposed on
real estate, there shall be levied, assessed and imposed (x) a tax, assessment,
levy, imposition, license fee or charge wholly or partially as a capital levy or
otherwise on the rents received therefrom, or (y) any other additional or
substitute tax, assessment, levy, imposition, fee or charge, then all such
taxes, assessments, levies, impositions, fees or charges shall be deemed to be
included within the term "Taxes" for the purposes hereof. Real Estate taxes do
not include any payment measured by Landlord's revenue or profit, nor interest
or penalties on taxes.
(ii) The term "Base Tax Year' shall mean the
Tax Year ending June 30, 2001. The first increase shall be July 1, 2001.
(iii) The term "Base Tax" shall mean the
Taxes for the Base Tax Year.
(iv) The term "BID Charges" shall mean
business improvement district charges imposed on the building and/or the land on
which the building is erected, and any expenses incurred by Owner in contesting
the same.
(v) The term "Tax Year" shall mean the
period of 12 calendar months beginning July 1st.
(vi) The term "Tenant's Share" shall mean
3.67 percent.
(b) (i) If the Taxes for any Tax Year shall exceed the Base
Tax, Tenant shall pay for such Tax Year an amount ("Tax Payment") equal to
Tenant's Share of such excess, and (ii) Tenant shall pay for each Tax Year an
amount ("BID Payment") equal to Tenant's Share of the BID Charges for that Tax
Year. If a Tax Year ends after the expiration or termination of the term of this
lease, the Tax Payment and BID Charges therefor shall be prorated to correspond
to that portion of such Tax Year occurring
<PAGE>
within the term of this lease. If the real estate fiscal tax year of the City of
New York shall be changed during the term of this lease, any Taxes or BID
Charges for a real estate fiscal tax year, a part of which is included within a
particular Tax Year and a part of which is not so included, shall be apportioned
on the basis of the number of days in the real estate fiscal tax year included
in the particular Tax Year for the purpose of making the computations under this
Article.
(c) The Tax Payment and BID Payment shall be payable by Tenant
within 30 days after receipt of a demand from Owner, which demand shall be
accompanied by Owner's computation of the Tax Payment and BID Payment (a copy of
the relevant tax bills shall be sent by Owner to Tenant with each demand).
Notwithstanding the foregoing, at Owner's option, to be exercised at any time
during the term of this lease upon notice to Tenant, Tenant shall pay on the
first day of each month, on account of the Tax Payment or the BID Payment for
the next Tax year, an amount equal to one-twelfth of the Tax Payment or the BID
Payment for the preceding Tax Year. If the aggregate payments on account of the
Tax Payment or the BID Payment in any Tax Year shall exceed the Tax Payment or
the BID Payment for that Tax Year, the excess shall, at Owner's option, either
be credited against subsequent payments under this Article or promptly refunded
to Tenant; and if the Tax Payment or the BID Payment for any Tax Year shall
exceed the aggregate payments on account of the Tax Payment or the BID Payment,
the excess shall be promptly paid by Tenant.
(d) If the Base Tax is reduced as a result of an appropriate
proceeding or otherwise, Owner shall adjust the amount of each Tax Payment
previously made, and Tenant shall pay the amount of the adjustment on the next
rent installment date immediately following receipt of a demand therefor from
Owner setting forth the amount of the adjustment. If in any Tax Year the
building or the land is entitled to any abatement of or exemption from Taxes or
BID Charges (or any assessment or rate which comprises Taxes or BID Payment),
such abatement or exemption shall not be taken into account in determining
Tenant's Tax Payment for that Tax Year.
(e) If Owner shall receive a refund of the Taxes or the BID
Charges for any Tax Year, Owner shall pay to Tenant Tenant's Share of the net
refund (after deducting from such total refund the costs and expenses of
obtaining same which have not previously been included in Taxes or BID Charges
under this lease); but (i) such payment to Tenant shall not exceed Tenant's Tax
Payment or BID Payment actually paid for such Tax Year and (ii) if Tenant is
then in default in the payment of any fixed rent or additional rent, Owner shall
first apply that refund to the defaulted payments.
40. Wage Rates. (a) For the purpose of this Article:
(i) The term "Wage Rate" shall mean the minimum
standard hourly wage rate from time to time prescribed for porters and persons
engaged in the general maintenance and operation of buildings of the type and in
the vicinity of the building of which the demised premises are a part pursuant
to an agreement ("Agreement") between the Realty Advisory Board on Labor
Relations, Incorporated (or any successor thereto) and the Building Service
Employees International Union Local 32B-32J, AFL-CIO (or any successor thereto)
covering the wage rates for porters and persons engaged in the general
maintenance and operation of buildings of the type and in the vicinity of the
building of which the demised premises are a part. The term "minimum standard
hourly wage rate" shall not include payroll taxes and other governmental
deductions (including, without limitation, unemployment insurance, workers
compensation, disability, withholding, social security, and health care
deductions) and fringe benefits (including, without limitation, vacations,
holidays, health insurance, pensions and other retirement plans, training fund
contributions, sick leave, jury duty, clinics and birthday and bereavement
days). If at any time (1) an Agreement provides for (x) a standard work week of
less than 40 hours and/or (y) the payment of overtime or premium rates during
the standard employment hours for porters and such persons, then, for the
purpose of this Article, the term "minimum standard hourly wage rate" shall mean
the total weekly wages which Owner or the contractor performing cleaning
services for Owner is required to pay to porters and such persons for a 40-hour
work week divided by 40; or (2) an Agreement is not in effect prescribing such
"minimum standard hourly wage rate" for porters and such persons, computations
and payments shall be made upon the basis of the minimum standard hourly wage
rate, payroll taxes and fringe benefits actually payable to porters and such
persons by Owner or by the contractor performing cleaning services for Owner. If
the minimum standard hourly wage rate for porters and such persons shall
increase during any calendar year effective retroactively to the beginning of
that calendar year, the minimum standard hourly wage rate for that calendar year
shall be deemed to include the entire amount of the increase as if it had been
in effect on the first day of such calendar year, otherwise, any increase during
a calendar year shall be effective from the effective date of the increase. If
as the result of any government action, any freeze or limitation is imposed on
the wages of porters and such persons for any calendar year, then for that
calendar year, for the purposes of this Article, the Wage Rate shall be deemed
to have increased from the prior calendar year by an amount equal to the greater
of the actual increase for that year or an amount equal to the increase for the
last calendar year for which a freeze or limitation was not in effect over the
calendar year prior to that calendar year.
(ii) The term "Base Wage Rate" shall mean the Wage
Rate in effect on January 1, 2001.
(iii) The term "Operating Statement" shall mean a
written statement prepared by Owner or its agent, setting forth Owner's
computation of the sum payable by Tenant under this Article.
-2-
<PAGE>
(b) For each full or partial calendar year during the term of
this lease, Tenant shall pay an annual amount ("Operating Payment") equal to the
sum obtained by multiplying (i) the amount by which the Wage Rate (as the same
changes from time to time) exceeds the Base Wage Rate, by (y) 5,500 provided,
however, that there shall be no Operating Payment until January 1, 2002.
(c) Each time the Wage Rate changes Owner shall furnish to
Tenant an Operating Statement Tenant shall pay to Owner on the first day of each
month following the furnishing of that Operating Statement an amount equal to
one-twelfth of the Operating Payment shown on that Operating Statement, until a
new Operating Statement is furnished. If, however, Owner shall furnish any
Operating Statement subsequent to the Wage Rate change in question (or
subsequent to the effective date of any change), then (i) until the first day of
the month following the month in which the Operating Statement is furnished to
Tenant, Tenant shall pay to Owner on the first day of each month an amount equal
to the then current monthly sum payable by Tenant to Owner under this Article;
(ii) promptly after the new Operating Statement is furnished to Tenant, Owner
shall give notice to Tenant stating whether the installments of the Operating
Payment previously made were greater or less than the installments of the
Operating Payment which should have been made since the last change in the Wage
Rate and (x) if there shall be a deficiency, Tenant shall pay the amount thereof
within 10 days after demand therefor, or (y) if there shall have been an
overpayment, Owner shall (at its option) either promptly refund to Tenant the
amount thereof or permit Tenant to credit the amount thereof against subsequent
payments under this Article; and (iii) on the first day of the month following
the month in which the Operating Statement is furnished to Tenant, and monthly
thereafter until a new Operating Statement is furnished to Tenant, Tenant shall
pay to Owner an amount equal to one-twelfth of the Operating Payment shown on
such Operating Statement.
(d) Each Operating Statement shall be conclusive and binding
upon Tenant unless within 45 days after the receipt of such Operating Statement
Tenant shall notify Owner that it disputes the accuracy of the Operating
Statement, specifying the particular respects in which the Operating Statement
is claimed to be inaccurate. If such dispute shall not have been settled by
agreement, either party may submit the dispute to arbitration as provided in
Article 64, within 90 days after receipt of such Operating Statement; and
pending the determination of such dispute by agreement or arbitration as
aforesaid, Tenant shall pay additional rent in accordance with Owner's
statement, without prejudice to Tenant's position. If the dispute shall be
determined in Tenant's favor Owner shall promptly pay to Tenant the amount of
Tenant's overpayment of additional rent resulting from compliance with Owner's
Operating Statement.
(e) If a calendar year ends after the expiration or
termination of this lease, the Operating Payment for that calendar year shall be
prorated to correspond to that portion of the calendar year occurring within the
term of this lease.
41. Electric Energy. (a) Subject to the provisions of this Article,
Owner shall cause to be furnished to Tenant the electric energy that Tenant
shall require in the demised premises on a "rent inclusion" basis; and Tenant
shall not be charged for such electric energy by way of measuring the same on
any meter or otherwise, such electric energy being included in Owner's services
which are covered by the fixed rent (as adjusted pursuant to this Article). Such
electric energy shall be furnished to Tenant through the existing electric
energy system for Tenant's reasonable use in connection with lighting, and such
other electric fixtures, appliances and equipment as Owner shall permit to be
installed in the demised premises. Owner shall not be liable in any way to
Tenant for any failure or defect in the supply or character of electric energy
furnished to the demised premises by reason of any requirement, act or omission
of the public utility supplying the building with electric energy or for any
other reason not attributable to Owner. Tenant, at its sole cost and expense,
shall furnish and install all replacement lighting tubes, lamps, bulbs and
ballasts required in the demised premises.
(b) The annual fixed rent set forth in this lease includes an
annual charge for electric energy equal to $16,500.00 (the "Initial Electric
Charge"). At Owners option, on or after the date the term of this lease shall
commence, an electrical consultant selected and paid by Owner shall make a
survey of the electric lighting and power load in the demised premises (and the
manner of use and demand thereof) to determine the average monthly electric
current consumption and demand therein. The fixed rent shall be increased to
compensate Owner for furnishing Tenant with electric energy as an additional
service by an amount, if any, computed by said consultant, by which the Initial
Electric Charge is exceeded by Tenant's average monthly electric current
consumption and demand (as determined by said consultant) as applied to Owner's
public utility rate schedule as same would apply if such consumption constituted
all of the electric energy purchased and demanded by Owner under such public
utility rate schedule (but in no event less than Owner's total cost of electric
energy furnished to all of the Tenant's of the building, as determined by said
consultant, multiplied by a fraction, the numerator of which is the electric
energy furnished to Tenant, as determined by said consultant, and the
denominator of which is the electric energy furnished to all of the Tenant's of
the building including Tenant as determined by said consultant). The
determinations and computations of said consultant shall be binding and
conclusive upon the parties. Such increase shall be effective as of the date the
term of this lease shall commence. The amount of such increase for the period
from the date the term of this lease shall commence to the last day of the month
in which said consultant shall make his determination shall be paid within 10
days after Owner furnishes Tenant with a statement thereof. Thereafter, such
increase shall be added to the fixed rent and shall be paid monthly in advance
on the first day of each and every month during the term of this lease. Owner,
its agents and consultants, may survey the
-3-
<PAGE>
electrical fixtures, appliances and equipment in the demised premises and
Tenant's use of electric energy therein from time to time after the initial
survey described in this paragraph to determine if Tenant is complying with its
obligations under this Article or if the increase in the fixed rent under this
Article should be adjusted. Each such increase in the fixed rent shall be
effective from the date of each such subsequent survey and shall be paid in the
manner described above. If any bills under this Article are not paid when due,
Owner may, without further notice, discontinue the service of electric energy to
the demised premises without releasing Tenant from any liability under this
lease and without Owner or Owners agent incurring any liability for damage or
loss sustained by Tenant by such discontinuance of service.
(c) Tenant's use of electric energy in the demised premises
shall not at any time exceed the capacity of any of the electrical conductors
and equipment in or otherwise serving the demised premises. In order to insure
that such capacity is not exceeded and to avert any possible adverse effect on
the building's electric service and/or distribution system, Tenant shall not,
from and after the date the term of this lease shall commence, without Owners
prior consent in each instance, connect any fixtures, appliances or equipment,
or make any alternation or addition, to the electric system of the demised
premises or the building. If Owner shall give such consent, all additional
risers or other equipment required therefor shall be furnished and installed by
Owner and the cost thereof shall be paid by Tenant to Owner on demand. As a
condition to giving such consent, Owner shall have the right to increase the
fixed rent as provided in this Article, as determined by an electrical
consultant selected by Owner and paid by Tenant. The determination of said
consultant shall be binding and conclusive upon the parties. Each such increase
in the fixed rent shall be effective from the date such additional electric
energy is made available to Tenant and shall be paid in the manner described in
paragraph (b) of this Article.
(d) If at any time and from time to time during the term of
this lease Owner's public utility rate schedule (which shall include, without
limitation, fuel charges and other charges for electric energy) shall be
increased or decreased (using Owner's rate schedule in effect on the date of the
initial survey under paragraph (b) of this Article as the base rate schedule),
all previous increases in the fixed rent under this Article shall be increased
or decreased in the same percentage, effective from the effective date of any
such increase or decrease in said public utility rate schedule.
(e) The parties shall execute, acknowledge and deliver to each
other a supplemental agreement in such form as Owner shall reasonably require to
reflect each change in the fixed rent under this Article, but notwithstanding
the date on which such agreement is executed (or whether any such agreement is
executed) any such change shall be effective as of the effective date described
in the paragraph which provides for such change.
(f) The electric energy required for the operation of the
heating, ventilating and air-conditioning equipment which serves the demised
premises shall be supplied and paid for pursuant to the provisions of this
Article, except that to the extent such equipment serves portions of the
building other than the demised premises, the cost of such electric energy shall
be apportioned among the portions served, in proportion of their respective
square footage of rentable area.
(g) Owner reserves the right to discontinue furnishing
electric energy to Tenant in the demised premises at any time upon not less than
45 days' notice to Tenant only if Owner also discontinues fumishing electric
energy to all other Tenant's in the Building at the same time. If Owner
exercises such right, this lease shall continue in full force and effect and
shall be unaffected thereby, except that from and after the effective date of
such discontinuance Owner shall not be obligated to furnish electric energy to
Tenant and the fixed rent payable under this lease shall be reduced by the sum
of $16,500.00 per annum plus the aggregate of all increases in the fixed rent
made pursuant to this Article (but the provisions of paragraph (f) of this
Article shall continue to apply). If Owner discontinues furnishing electric
energy to Tenant, Tenant shall arrange to obtain electric energy directly from
the public utility company supplying electric energy to the building. Such
electric energy may be furnished to Tenant by means of the then existing
building system feeders, risers, and wiring to the extent that the same are
available, suitable and safe for such purposes, as determined solely by Owner.
All meters and additional panel boards, feeders, risers, wiring and other
conductors and equipment which may be required to obtain electric energy
directly from such public utility company shall be furnished and installed by
Owner at Tenant's expense.
(h) If at any time during the term of this lease Owner shall
be permitted to meter or submeter Tenant's consumption of electric energy, Owner
shall have the right to cause Tenant's consumption of electric energy to be
metered or submetered. If Owner shall exercise such right, this lease shall
remain in full force and effect and shall be unaffected thereby, except that (i)
Owner shall, at Tenant's sole cost and expense, furnish, install and maintain
all such meters or submeters and all feeders, risers and wiring required in
connection with such metering or submetering, and (ii) from and after the date
Owner shall complete the installation of such meters, submeters, feeders, risers
and wiring, Tenant shall purchase electric energy from Owner and shall from time
to time, within five days after demand (accompanied by Owner's computation of
the amount then due), pay to Owner all charges for Tenant's consumption of
electric energy as measured by such meters or submeters. The charge paid by
Tenant to Owner shall be the sum of (i) an amount determined by applying
Tenant's consumption of and demand for electric energy as set forth on the
submeter or submeters serving the demised premises to the rates (including
applicable surcharges, demand charges, energy charges, fuel adjustment charges,
taxes and other sums payable with respect thereto) of the Service Classification
pursuant to which Owner purchases electric energy from the utility company
servicing
-4-
<PAGE>
the building and (ii) Owner's administrative charge for overhead and supervision
equal to 10% of the amount referred to in clause (i) above, and if and to the
extent permitted by law, When more than one meter measures the service of
Tenant, the service rendered through each meter may be computed and billed
separately in accordance with this paragraph. Tenant shall comply with the
General Rules, Regulations, Terms and Conditions applicable to Service,
Equipment Wiring and Changes in Requirements in accordance with the requirements
of the public utility supplying electric energy to the building in the same
manner as if Tenant was serviced directly by such utility. Owner shall have the
right at any time to discontinue such metering or submetering, in which event
the provisions of this paragraph shall not apply and Owner, at its cost and
expense, shall restore the electric service to its condition prior to the
commencement of such metering or submetering.
(i) If any tax or other charge is imposed upon
Owner's receipt of additional rent under this Article, such taxes or other
charges shall be passed on to, and included in the bill of, and paid by, Tenant.
42. Utility Expenses. (a) For the purpose of this Article:
(i) The term "Utility Expenses" shall mean all costs
and expenses paid or incurred by Owner or on Owner's behalf in respect of gas,
steam, electricity, heat, ventilation, air-conditioning, water, telephone and
other utilities furnished to the building (including, without limitation, the
common areas thereof), together with any taxes on such utilities, which are not
paid by any other tenant of the building.
(ii) The term "Base Utility Year" shall mean the
calendar year commencing January 1, 2000.
(iii) The term "Utility Year" shall mean each
calendar year following the Base Utility Year.
(iv) The term "Utility Statement" shall mean a
written statement prepared by Owner or its agent, setting forth Owner's
computation of the sum payable by Tenant under this Article for a particular
Utility Year.
(v) The term "Tenant's Share" shall mean 3.67
percent.
(b) For each Utility Year commencing during the term of this
lease, Tenant shall pay to Owner an annual amount ("Utility Payment") equal to
Tenant's Share of the amount by which the Utility Expenses for such Utility
Year exceed the Utility Expenses for the Base Utility Year.
(c) At Owner's option, Owner shall furnish to Tenant, prior to
the commencement of each Utility Year, a written statement setting forth Owner's
estimate of the Utility Payment for such Utility Year. Tenant shall pay to Owner
on the first day of each month during such Utility Year an amount equal to
one-twelfth of Owners estimate of the Utility Payment for such Utility Year. If,
however, Owner shall furnish any such estimate for a Utility Year subsequent to
the commencement thereof, then (i) until the first day of the month following
the month in which the estimate is furnished to Tenant, Tenant shall pay to
Owner on the first day of each month an amount equal to the monthly sum payable
by Tenant to Owner under this Article in respect of the last month of the
preceding Utility Year; (ii) promptly after the estimate is furnished to Tenant,
Owner shall give notice to Tenant stating whether the installments of the
Utility Payment previously made for such Utility Year were more or less than the
installments of the Utility Payment to be made for such Utility Year in
accordance with the estimate, and (x) if there shall be a deficiency, Tenant
shall pay the amount thereof within 10 days after demand therefor or (y) if
there shall have been an overpayment, Owner shall either promptly refund to
Tenant the amount thereof or permit Tenant to credit the amount thereof against
subsequent payments under this Article; and (iii) on the first day of the month
following the month in which the estimate is furnished to Tenant, and monthly
thereafter throughout the remainder of such Utility Year, Tenant shall pay to
Owner an amount equal to one-twelfth of the Utility Payment shown on the
estimate. Owner may, from time to time during each Utility Year, furnish to
Tenant a revised statement of Owner's estimate of the Utility Payment for such
Utility Year, and in such case, the Utility Payment for such Utility Year shall
be adjusted and paid or refunded, as the case may be, in the same manner as
provided in the preceding sentence.
(d) Within 120 days after the end of each Utility Year Owner
shall furnish to Tenant a Utility Statement for such Utility Year. If the
Utility Statement shall show that the sums paid by Tenant under this Article
exceeded the Utility Payment to be paid by Tenant for such Utility Year, Owner
shall either promptly refund to Tenant the amount of such excess or permit
Tenant to credit the amount of such excess against subsequent payments under
this Article; and if the Utility Statement for such Utility Year shall show that
the sums so paid by Tenant were less than the Utility Payment to be paid by
Tenant for such Utility Year, Tenant shall pay the amount of such deficiency
within 10 days after demand therefor.
(e) Each such Utility Statement given by Owner pursuant to
paragraph (d) shall be conclusive and binding upon Tenant unless within 45 days
after the receipt of such Utility Statement Tenant
-5-
<PAGE>
shall notify Owner that it disputes the accuracy of the Utility Statement,
specifying the particular respects in which the Utility Statement is claimed to
be inaccurate. If such dispute shall not have been settled by agreement, either
party may submit the dispute to arbitration as provided in Article 64, within 90
days after receipt of such Utility Statement. Pending the determination of such
dispute by agreement or arbitration as aforesaid, Tenant shall within 10 days
after receipt of such Utility Statement, pay additional rent in accordance with
Owner's statement, without prejudice to Tenant's position. If the dispute shall
be determined in Tenant's favor, Owner shall promptly pay to Tenant the amount
of Tenant's overpayment of additional rent resulting from compliance with
Owner's Utility Statement.
(f) If a Utility Year ends after the expiration or termination
of this lease, the Utility Payment for that Utility Year shall be prorated to
correspond to that portion of the Utility Year occurring within the term of this
lease.
(g) If Owner shall make any capital improvements to the
building and/or install any machinery or equipment in the building, which is
made, installed or becomes operational after the Base Utility Year, and which
has the effect of reducing the expenses which otherwise would be included in
Utility Expenses, the amount of such reduction in Utility Expenses which would
have been incurred by Owner during each Utility Year of the term of this lease
shall be included in Utility Expenses for each Utility Year of the term of this
lease.
43. Capital Improvements. (a) For the purposes of this Article:
(i) The term "Capital Improvement" shall mean any
repair, alteration, replacement or improvement (which are capitalized under
generally accepted accounting principles) performed by or on behalf of Owner in
respect of the land or the building by reason of laws and requirements of any
public authorities or the requirements of any insurance bodies required by any
Legal Requirement enacted after the Commencement Date or a change enacted after
the Commencement Date to a law in effect on the Commencement Date, or (ii)
designed, in Owner's reasonable judgment, to result in savings or reductions in
Operating Expenses or (iii) designed, in Owner's reasonable judgment, to benefit
all or substantially all of the Tenants of the Building.
(ii) The term "Capital Improvement Expenses" shall
mean all costs and expenses paid or incurred by or on behalf of Owner in respect
of any Capital Improvement.
(iii) The term "Amortization Period" shall mean the
number of months over which Owner amortizes any Capital Improvement.
(iv) The term "Applicable Interest Rate" shall mean
the lesser of (x) the annual interest rate from time to time announced by
Citibank, N.A. for its most credit-worthy corporate borrowers for unsecured
business loans having a term of 90 days or less and (y) the maximum legal rate
of interest for transactions of a similar nature.
(v) The term "Capital Improvement Statement" shall
mean a written statement prepared by Owner or its agent setting forth Owner's
computation of the sum payable by Tenant under this Article.
(vi) The term "Tenant's Share" shall mean 3.67
percent.
(b) In addition to any other sums to be paid by Tenant to
Owner under this lease, if Owner shall perform any Capital Improvement during
the term of this lease, then for each calendar month during the term of this
lease following the substantial completion of the Capital Improvement, Tenant
shall pay to Owner, as additional rent, Tenant's Share of an amount obtained by
dividing (x) the Capital Improvement Expenses in respect of such Capital
Improvement by (y) the applicable Amortization Period.
(c) As soon as practicable following the completion of each
Capital Improvement, Owner shall furnish to Tenant a Capital Improvement
Statement. Commencing with the first day of the calendar month following the
furnishing of a Capital Improvement Statement and thereafter on the first day
each calendar month during the term of this lease, Tenant shall pay to Owner the
monthly sum set forth on such statement, together with interest thereon at the
Applicable Interest Rate, as and when the monthly installments of fixed rent are
due and payable. If such statement is furnished subsequent to the first day of
the calendar month following substantial completion of the Capital Improvement
in question, then the first monthly payment shall include all monthly
installments from the first day of the calendar month following substantial
completion.
(d) The provisions of this Article shall apply to each Capital
Improvement during the term of this lease.
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44. Additional Rent. Notwithstanding any provision of this lease to the
contrary, all sums of money, other than the fixed rent, as shall become due from
and payable by Tenant to Owner under this lease shall be deemed to be additional
rent.
45. Survival. Any obligation of Owner or Tenant which by its nature or
under the circumstances can only be, or by the provisions of this lease may be,
performed after the expiration or earlier termination of this lease, and any
liability for a payment which shall have accrued to or with respect to any
period ending at the time of such expiration or termination, unless expressly
otherwise provided in this lease, shall survive the expiration or earlier
termination of this lease. No delay by Owner in rendering any bill or statement
shall be deemed a waiver or release of Tenant's obligation to make the payment
reflected on that bill or statement.
46. Certain Restrictions. In addition to any other restrictions set
forth in this lease, Tenant shall not (a) use any other area within or adjacent
to the building for the sale or display of any merchandise, for solicitations or
demonstrations or for any other business, occupation, undertaking or activity,
(b) store any trash or garbage in any area other than inside the demised
premises (and Tenant shall, at Tenant's sole cost and expense, attend to the
daily disposal of trash), (c) suffer, permit or commit any waste or any nuisance
or other act or thing in the demised premises which may disturb any other tenant
or occupant in the building or permit any activity within or from the demised
premises which, in Owner's sole judgment, is obscene, pornographic or lewd, (d)
permit music or any other sounds in the demised premises to be heard outside of
the demised premises, (e) use or permit or suffer the use of any machines or
equipment in the demised premises which cause vibration or noise that may be
transmitted to or heard outside of the demised premises, (f) permit odors or
fumes beyond the demised premises, (g) to the extent possible, permit its
customers or delivery men to loiter immediately outside the demised premises or
the building, (h) place or install, or permit or suffer to be placed or
installed, or maintain, any sign upon or outside the demised premises or the
building, nor shall Tenant place or maintain on the glass of any window or door
of the demised premises, or inside the demised premises, any sign, decoration,
lettering, advertising matter, display (which can be seen from outside the
demised premises), shade or blind or other thing of any kind, (i) park trucks or
other delivery vehicles so as to interfere with the use of any driveways, walks
or entrances, (j) place or install, or permit or suffer to be placed, installed
or maintained, any awning, canopy, banner, flag, pennant, aerial, antenna or the
like upon or outside the demised premises or the building, (k) use any portion
of the demised premises for the conduct of any public auction, gathering,
meeting or exhibition, the rendering of any health or related services, the
conduct of a school or employment or personnel agency, the conduct of any
business which results in the presence of the general public in the demised
premises, or in any other manner which, in Owner's reasonable opinion, creates
excessive traffic or use of the building services, or (l) cause or permit, as
the result of any intentional or unintentional act or omission on the part of
Tenant, its agents, employees, Tenant's, subtenant's or other occupants of the
demised premises to release Hazardous Substances (as defined in this Article) in
or from any portion of the demised premises in violation of any Environmental
Laws. Tenant shall indemnify, defend and hold harmless Owner, and its
successors, assigns, and each of their partners, employees, agents, officers and
directors from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, losses, costs or expenses of whatever kind or nature,
known or unknown, contingent or otherwise, including, without limitation,
reasonable attorneys' and consultants' fees and disbursements and investigation
and laboratory fees arising out of, or in any way related to: (i) the presence,
disposal, release or threat of release of any Hazardous Substance as a result of
any act or omission of Tenant, its agents, employees, Tenant's, subtenant's,
invitees or other occupants of the demised premises, in or from or affecting the
demised premises; (ii) any personal injury (including wrongful death) or
property damage (real or personal) arising out of or related to any such
Hazardous Substance; (iii) any lawsuit brought or threatened, settlement reached
or government order relating to such Hazardous Substance; and (iv) any
violations of laws, orders, regulations, requirements or demands or governmental
authorities by Tenant. "Hazardous Substance" shall mean "solid waste" or
"hazardous waste", "hazardous material", "hazardous substance", and "petroleum
product" as defined in the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Hazardous Material Transportation Act, the Federal Water Pollution Control Act
and the Superfund Amendments and Reauthorization Act of 1986, any laws relating
to underground storage tanks, and any similar or successor federal law, state
law or local statutes and ordinances and any rules, regulations and policies
promulgated thereunder, as any of such federal, state and local statutes,
ordinances and regulations may be amended from time to time (collectively,
"Environmental Laws").
47. Insurance. (a) Tenant, at its expense, shall maintain at all times
during the term of this lease and at all times when Tenant is in possession (and
cause its subtenants or any other person or entity occupying any portion of the
demised premises by, through or under Tenant) at all times during the term of
this Lease and at all times when Tenant (or such other person or entity) is in
possession of the demised premises (i) public liability insurance in respect of
the demised premises and the conduct or operation of Tenant's business therein,
with Owner and Owner's managing agent, if any, as additional named insureds,
with a combined single limit of not less than $2,000,000 and (ii) insurance
(without deductible) covering all of Tenant's property, including, without
limitation, Tenant's furniture, fixtures, machinery, equipment and other
personal property and any property of third parties located in the demised
premises ("Tenant's Property") against at risks and perils for physical loss and
damage, including, without limitation, insurance for water and sprinkler damage,
and including, without limitation, coverage for business interruption, in an
amount equal to 100 percent of the full replacement value of Tenant's Property
(as increased from time to time), the policy for which shall, if obtainable (and
subject to the payment of any additional premium by Owner as provided in
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Article 9), contain a clause providing that the release or waiver referred to in
Article 9 shall not invalidate the insurance.
(b) Tenant shall deliver to Owner such policies or
certificates of such policies (in form acceptable to Owner) prior to the
commencement of the term of this lease (and with respect to any insurance
required by Owner pursuant to Article 3, prior to the commencement of any
alteration). 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 insureds such renewal policy or certificate at least 30
thirty (30) days before the expiration of any existing policy. All such policies
(and all insurance required by Owner pursuant to Article 3) shall name as
additional named insureds Owner, Owner's managing agent and any other persons or
entities designated by Owner, shall be issued by companies reasonably
satisfactory to Owner and all such policies shall contain a provision whereby
the same cannot be canceled or modified unless Owner and any additional named
insureds are given at least 30 thirty (30) days' prior written notice of such
cancellation or modification, including, without limitation, any cancellation
resulting from the non-payment of premiums. Owner shall have the right at any
time and from time to time, but not more frequently than once every two years,
to require Tenant to increase the amount of the insurance maintained by Tenant
under this Article, as reasonably determined by Owner, provided that such amount
shall not exceed the amount which is comparable to the amount then generally
required of Tenant's in similar space in similar buildings in the general
vicinity of the building.
(c) Owner, at its expense, shall maintain insurance covering
the Building against loss or damage by fire and such other risks as Owner shall
determine, in such amounts, with such companies and with such deductibles as
Owner shall determine. The policy shall, if obtainable (and subject to the
payment of any additional premium by Tenant as provided in Article 9), contain a
clause providing that the release or waiver referred to in Article 9 shall not
invalidate the insurance.
(d) Any reference in this lease to Tenant's contractors shall
include, without limitation, all contractors, subcontractors, materialmen and
others performing any work in the demised premises for Tenant (other than
Tenant's employees), whether retained directly by Tenant or by any contractor.
48. Sale of Stock or Partnership Interests. If at any time the original
Tenant named herein or the then Tenant shall be a corporation, partnership,
limited partnership or other entity, any transfer of voting stock or partnership
or other interests resulting in the person or persons who shall have control of
such corporation, partnership, limited partnership or other entity (whether
through the ownership of voting stock, general partner interests, other
ownership interests, management or other agreements, or otherwise) immediately
before such transfer, ceasing to have control, except as the result of transfers
by inheritance, shall be deemed to be an assignment of this lease as to which
Owner's consent shall have been required.
49. Security Deposit. If Owner shall use, apply or retain the whole or
any part of the security deposit described in Article 34, Tenant shall upon
demand immediately deposit with Owner a sum equal to the amount so used, applied
or retained, as security as aforesaid. The Security Deposit shall be made by
certified check.
50. Arrears. If Tenant is in arrears in the payment of rent or
additional rent, Tenant waives Tenant's right, if any, to designate the items
against which any payments made by Tenant are to be credited, and Tenant agrees
that Owner may apply any payments made by Tenant to any items Owner sees fit,
irrespective of and notwithstanding any designation or request by Tenant as to
the items against which any such payments shall be credited.
51. Broker. Tenant represents to Owner that no broker other than The
Realty Management Corp. and Colliers ABR Inc. (the "Brokers") was instrumental
in consummating this lease and that Tenant had no conversations or negotiations
with any broker other than the Brokers concerning the leasing of the demised
premises. Tenant agrees to indemnify, defend and hold harmless Owner against and
from any claims for any brokerage commissions or other compensation which are
made by any broker other than the Brokers, and all costs, expenses and
liabilities in connection therewith, including, without limitation, attorneys'
fees and expenses. Owner shall pay any commission due the Brokers pursuant to a
separate agreement between Owner and the Brokers.
52. No Owner Liability. Owner, its partners and principals, disclosed
or undisclosed, shall have no personal liability under this lease. Tenant shall
look only to Owner's interest in the land and the building (or the proceeds
thereof) for the satisfaction of Tenant's remedies for the collection of a
judgment (or other judicial process) requiring the payment of money by Owner in
the event of any default by Owner hereunder, and no other property or assets of
Owner or its partners or principals, disclosed or undisclosed, shall be subject
to lien, 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 or occupancy of the demised premises. If
Tenant shall acquire a lien on such other property or assets by judgment or
otherwise, Tenant shall promptly release such lien by executing and delivering
to Owner any instrument, prepared by Owner, required for such lien to be
released.
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53. lnterpretation. Irrespective of the place of execution or
performance, this lease shall be governed by and construed in accordance with
the law of the State of New York. If any provision of this lease or the
application thereof to any person or circumstance shall, for any reason and to
any extent, be invalid or unenforceable the remainder of this lease and the
application of that provision to other persons or circumstances shall not be
affected but rather shall be enforced to the extent permitted by law. This lease
shall be construed without regard to any presumption or other rule requiring
construction against the party causing this lease to be drafted. Each covenant,
agreement, obligation or other provision of this lease on Tenant's part to be
performed, shall be deemed and construed as a separate and independent covenant
of Tenant; not dependent on any other provision of this lease. All terms and
words used in this lease, regardless of the number or gender in which they are
used, shall be deemed to include any other number and any other gender as the
context may require.
54. Owner's Consent. If Tenant shall request Owner's approval or
consent and Owner shall fail or refuse to give such consent or approval, Tenant
shall not be entitled to any damages for any withholding or delay of such
approval or consent by Owner, it being intended that Tenant's sole remedy shall
be an action for injunction or specific performance and that such remedy shall
be available only in those cases where Owner shall have expressly agreed in
writing not to unreasonably withhold its consent or approval or where as a
matter of law Owner may not unreasonably withhold its consent or approval.
55. Interest. In addition to any other remedies Owner may have under
this lease, Tenant shall pay to Owner interest at the prime rate of Citibank
N.A. plus 2% on any rent or additional rent paid more than ten days after the
same is due, which interest shall be paid for the period commencing on the date
such rent or additional rent was first due and ending on the date the same is
paid.
56. Execution of Lease. Notwithstanding any provision of this lease, or
any law or rule, to the contrary, or the execution of this lease by Tenant, this
lease shall not bind Owner, nor shall Tenant be permitted the benefits of this
lease, unless and until one or more counterparts of this lease are executed by
Owner and delivered to Tenant.
57. Managing Agent. Any bill, statement, notice or communication given
by Owner to Tenant in accordance with Article 28 may be signed and delivered by
the managing agent of the building with the same force and effect as if signed
and delivered by Owner. Until Owner shall give notice to Tenant of a change, the
managing agent of the building shall be Tri Realty Management Corp., 275 Madison
Avenue, New York, New York 10016.
58. Security Interests. Tenant shall not grant or create, or permit to
be created, any security interest in or lien upon any fixtures, installed or
placed in the demised premises by Tenant or Owner.
59. Rent Control. If the fixed rent or any additional rent shall be or
become uncollectible by virtue of any law, governmental order or regulation, or
direction of any public officer or body pursuant to law, Tenant shall enter into
such agreement or agreements and take such other action as Owner may request, as
may be legally permissible. to permit Owner to collect the maximum fixed rent
and additional rent which may from time to time during the continuance of such
rent restriction be legally permissible, but not in excess of the amounts of
fixed rent and additional rent payable under this lease. Upon the termination of
such rent restriction prior to the expiration of the term of this lease (a) the
fixed rent and additional rent, after such termination, shall become payable
under this lease in the amount of the fixed rent and additional rent set forth
and (b) Tenant shall pay to Owner, if legally permissible, an amount equal to
(i) the fixed rent and additional rent which would have been paid pursuant to
this lease, but for such rent restriction, less (ii) the fixed rent and
additional rent paid by Tenant to Owner during the period that such rent
restriction was in effect.
60. Holding Over. If the demised premises are not surrendered and
vacated as and at the time required by this lease (time being of the essence),
Tenant shall be liable to Owner for (a) all losses, costs, liabilities and
damages which Owner may incur by reason thereof, including, without limitation,
attorneys' fees, and Tenant shall indemnify, defend and hold harmless Owner
against all claims made by any succeeding Tenant's against Owner or otherwise
arising out of or resulting from the failure of Tenant timely to surrender and
vacate the demised premises in accordance with the provisions of this lease, and
(b) per diem use and occupancy in respect of the demised premises equal to two
times the fixed rent and additional rent payable under this lease for the last
year of the term of this lease (which amount Owner and Tenant presently agree is
the minimum to which Owner would be entitled, is presently contemplated by them
as being fair and reasonable under such circumstances and is not a penalty). In
no event, however, shall this Article be construed as permitting Tenant to hold
over in possession of the demised premises after the expiration or termination
of the term of this lease.
61. Tenant's Work. (a) Subject to the provisions of this Article,
Article 3, all other provisions of this lease, and the rules and regulations of
the building now or hereafter in effect, Owner's consent to the performance by
Tenant of work ("Tenant's Work") consisting of nonstructural alterations to the
demised premises in accordance with Tenant's Plans (as defined below) shall not
be unreasonably withheld or delayed, provided that (i) Tenant is not then in
default under this lease, (ii) Tenant's Work is not structural, (iii) the
outside appearance of the building shall not be affected, (iv) Tenant's Work
shall not affect any structural part of the building, (v) no part of the
building outside of the demised premises shall be affected, (vi) the mechanical,
electrical, plumbing and other service and utility systems of the building shall
not be affected,
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and (vii) Tenant's Work shall comply with the applicable provisions of this
lease and law. Any Tenant's Work which is required to be performed by Tenant
pursuant to any provision of this lease which is structural or which affects any
mechanical, electrical, plumbing or other service or utility system of the
building shall be performed in accordance with this Article and all other
applicable provisions of this lease, or may, at Owner's option, be performed by
Owner at Tenant's expense (in which event, Tenant shall pay Owner in
installments, in advances, as the work progresses).
(b) Prior to the commencement of any Tenant's Work, Tenant
shall submit to Owner for its approval two sets of complete plans, drawings and
specifications, suitable for filing ("Tenant's Plans"), including, without
limitation, all mechanical, electrical, air conditioning and other utility
systems and facilities, for Tenant's Work, prepared by an architect and/or
engineer duly licensed in the State of New York. Within 15 days following
Owner's receipt of Tenant's Plans, Owner shall review or cause the same to be
reviewed and shall thereupon return to Tenant one set of Tenant's Plans with
Owner's approval (which shall not be unreasonably withheld) or disapproval noted
thereon, and if same shall be disapproved in any respect Owner shall state the
reasons for such disapproval. If Owner shall not approve Tenant's Plans Tenant
shall, within five days of receipt thereof, cause its architect or engineer to
make such changes to Tenant's Plans as Owner shall require and shall thereupon
resubmit the same to Owner for its approval. To the extent required pursuant to
any mortgage affecting the building, Tenant's Plans shall also be subject to the
prior approval of the holder of such mortgage. Following the approval of
Tenant's Plans, the same shall be final and shall not be changed by Tenant
without the prior approval of Owner, which shall not unreasonably be withheld
(and such mortgagee, if required), except as may be required by law. Tenant
shall give prior notice to Owner of any changes required by law and shall
furnish Owner (and such mortgagee, if required) with copies of all such required
changes in Tenant's Plans. Owner's approval of Tenant's Plans or of any
revisions shall not constitute an opinion or agreement by Owner that the same
are structurally sufficient or the Tenant's Plans are in compliance with law,
nor shall such approval impose any present or future liability on Owner or waive
any of Owners's rights under this lease. Owner's approval of Tenant's Plans
shall be conditioned upon Tenant employing licensed persons and firms (where
required by law) and labor for the performance of Tenant's Work so as not to
cause any jurisdictional or other labor disputes in the building. In any event,
all contractors Tenant proposes to employ shall be bondable and shall be subject
to Owner's prior approval, which will not be unreasonably withheld or delayed.
Such approval shall be requested by Tenant prior to the commencement of any
Tenant's Work.
(c) Promptly following Owner's approval of Tenant's Plans,
Tenant shall secure or cause to be secured, at Tenant's expense, all necessary
approvals of Tenant's Plans from all govermmental authorities having
jurisdiction and all permits and licenses necessary to perform Tenant's Work.
Prior to the commencement of any Tenant's Work, Tenant shall furnish Owner with
copies of Tenant's Plans as approved by such governmental authorities and copies
of such permits and licenses; provided, however, that the filing of any
applications with any governmental authorities for such approval or for any
permits or licenses required to perform Tenant's Work shall be done by Rethy
Associates, Inc. or another person or entity designated by Owner. Prior to such
filing, Tenant shall submit copies of such applications to Owner for its
approval, which shall not unreasonably be withheld or delayed.
(d) Upon Tenant having secured the approvals from Owner and
from governmental authorities as required under this Article, Tenant shall
promptly (i) enter into a construction contract in form and substance approved
by Owner, which approval shall not be unreasonably withheld or delayed, provided
such contract shall include, among other terms, indemnification, insurance,
bonding and release of lien provisions satisfactory to Owner, shall be submitted
on the basis of a lump sum contract price, shall provide for a retainage of not
less than 10% in connection with any progress payments to be made to the
contractor prior to the completion of Tenant's Work and shall otherwise comply
with the terms of this lease, with a general contractor and/or construction
manager approved by Owner and (ii) furnish Owner with a copy of such executed
contract.
(e) Prior to the commencement of Tenant's Work, Tenant shall
provide Owner with such security as Owner shall reasonably request to ensure
lien free completion of and full payment for all of Tenant's Work. A lien bond
shall satisfy this requirement.
(f) Following compliance by Tenant with its obligations under
the foregoing provisions of this Article, Tenant shall promptly commence or
cause to be commenced Tenant's Work and shall complete or cause the same to be
completed with reasonable diligence, in a first-class, workmanlike manner in
accordance with the approved Tenant's Plans, all licenses and permits, this
lease, all applicable laws, ordinances and regulations of all governmental and
insurance authorities and all applicable requirements of the Board of Fire
Underwriters. All of Tenant's Work shall be performed in a manner so as to cause
no inconvenience or disturbance to other Tenants or contractors in the building.
Any heavy demolition work, core drilling or other slab penetrations to be
performed by Tenant as part of Tenant's Work shall be performed on business days
before 8:00 A.M. or after 6:00 P.M. Tenant shall cause all construction work to
be performed in a reasonable manner and shall comply with Owner's work
regulations for the building (including, without limitation, the payment of
charges for services).
(g) Tenant's Work shall not include any structural changes to
the demised premises or to the building or impair the structural soundness
thereof, and all of Tenant's Work shall be performed within the demised
premises. Tenant's Work shall in no event interfere with or impair the use of
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other portions of the building or its services, including, without limitation,
the plumbing, heating, ventilating, air conditioning and electrical systems, by
Owner or other occupants of the building.
(h) Tenant shall pay its contractors, laborers,
subcontractors, materialmen and suppliers in accordance with their respective
agreements with Tenant, shall not cause or suffer any liens, mortgages, chattel
liens, or other title retention or security agreements to be placed on the
demised premises, any improvements therein or the building. Nothing contained in
this Article or elsewhere in this lease shall be construed in any way as
constituting any consent or authorization to Tenant to subject the land or the
building or any part of the land or the building or any improvements or other
personal property therein or the interest or estate of Owner or of the lessor
under any underlying lease to any lien or charge in respect of Tenant's Work,
All contracts or agreements made by Tenant with any third party for the
furnishing of any labor or materials in connection with Tenant's Work (or any
other work or alterations by Tenant) shall expressly provide that the contractor
or materialman shall look solely to Tenant for the payment of any labor or
materials furnished to the demised premises pursuant to such contract or
agreement and that neither Owner nor the lessor under any underlying lease shall
have any responsibility or liability for the payment thereof.
(i) Promptly following the completion of Tenant's Work, Tenant
shall obtain and submit to Owner copies of all final govemmental and fire
underwriters' approvals or certificates evidencing the completion thereof in
compliance with all governmental and fire underwriters' requirements.
(j) Upon the completion of Tenant's Work and the approval
thereof by Tenant's architect and if required by Owner, Owner's architect as
provided in this Article, Tenant shall deliver to Owner the general contractor's
affidavit to the effect that (i) all work and materials covered by the final
Application for Payment has been completed and/or installed in accordance with
Tenant's Plans, or such changes thereto which Owner may have previously
approved, and (ii) all laborers, materialmen and subcontractors employed by the
general contractor have been paid in full, except such as may be stated and in
respect of any such unpaid laborers, materialmen and/or subcontractors, the
amount then due and owing to them, which affidavit shall be accompanied by lien
releases from all such parties and/or such other data establishing payment or
satisfaction of all other obligations in respect of Tenant's Work.
(k) Nothing contained in this Article shall limit the
provisions of Article 3 or any other provisions of this lease, except as
specifically set forth in this Article, The provisions of this Article are in
addition to the provisions contained in Article 3 and elsewhere in this lease.
62. Americans with Disabilities Act. Notwithstanding any provision
of this lease to the contrary, Tenant shall, at its expense, subject to all of
the provisions of this lease, comply with all aspects of the Americans with
Disabilities Act, as now or hereafter constituted (the "ADA"), with respect to
the demised premises, whether or not such compliance is required as the result
of Tenant's business, Tenant's work, Tenant's use or manner of use of the
demised premises or the building (including the use permitted under this lease),
or Tenant's method of operation or whether or not such compliance requires
structural changes to the demised premises. If Tenant's business, Tenant's work,
Tenant's use or manner of use or Tenant's method of operation requires changes
to any portion of the building or areas adjacent to the building in order to
comply with the ADA, either (i) Tenant shall discontinue such business, use or
method of operation, or (ii) Owner shall have the option of either terminating
this lease (in which event this lease shall end on the 30th day following
Owner's notice and Tenant shall vacate the demised premises on such date,
without further liability or obligation of Owner or Tenant, beyond that date) or
performing those changes at Tenant's expense (in which event, Tenant shall pay
Owner for the expense of the changes, plus 15% of the expense, in installments,
in advance, as the work is performed).
63. Confidentiality. Tenant shall hold in confidence and shall not
disclose to third parties, and shall cause its officers, directors, employees,
representatives, brokers, attorneys and advisers to hold in confidence and not
disclose to third parties, this lease and its terms, as hereby or hereafter
amended, and any information relating to Owner or the building, if any, provided
by Owner to Tenant in connection with this lease, as hereby or hereafter amended
(collectively, the "Information"), except to the extent any Information (a) must
be disclosed by order of any court or regulatory agency, or by law (b) is
publicly known or becomes publicly known other than through the acts of Tenant,
or any of its officers, directors, employees, representatives, brokers,
attorneys or advisers, or (c) must be disclosed by Tenant in connection with any
financing or sale, any subletting of the demised premises, or any assignment of
this lease, as hereby or hereafter amended, by Tenant.
64. Arbitration. If any provision of this lease shall refer any dispute
to arbitration, then either party may apply to the New York office of the
American Arbitration Association to appoint an individual to resolve the
dispute. The individual must be a person who has experience in commercial real
estate in New York for at least the past 15 years. The application shall request
that such decision be made within 30 days. If the American Arbitration
Association or the appointed individual fails or refuses to act within the
required time period, either party may apply to the President of the Real Estate
Board of New York, Inc. for such determination. To the extent the same are
relevant to the decision of such individual, the provisions of this lease shall
apply. The determination of such individual shall be binding and conclusive on
Owner and Tenant. All fees, cost and expenses of the foregoing shall be paid by
the parties equally, but each party shall be responsible for its own attorney's
and witness fees.
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65. Assignment and Subletting. (a) If Tenant shall at any time during
the term of this lease desire to assign this lease or sublet all of the demised
premises Tenant shall give notice thereof to Owner, which notice shall be
accompanied by (i) a conformed or photostatic copy of the proposed assignment or
sublease, the effective or commencement date of which shall be at least 30 days
after the giving of such notice, (ii) a statement setting forth in reasonable
detail the identity of the proposed assignee or subtenant, the nature of its
business and its proposed use of the demised premises, and (iii) current
financial information with respect to the proposed assignee or subtenant,
including, without limitation, its most recent financial report. Such notice
shall be deemed an offer from Tenant to Owner whereby Owner may, at its option,
terminate this lease. Said option may be exercised by Owner by notice to Tenant
at any time within 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 such
space to any person. Tenant reserves the option to sublet no more than two rooms
to a third party closely affiliated with Tenant. Tenant shall remain fully
liable under this Lease for its obligations and responsibilities hereunder,
including, but no limited to the obligation to pay the full amount of rent, and
for any additional obligations and responsibilities, if any, arising from such
subletting.
(b) If Owner exercises its option to terminate this lease,
Tenant and Guarantor, if any, shall be fully and completely relieved from all
liabilities under the Lease, from that day forward, and 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, Tenant shall vacate the demised premises on or
before such date, and the fixed rent and additional rent shall be paid and
apportioned to such date.
(c) If Owner does not exercise its option pursuant to
paragraph (a) of this Article, provided Tenant is not then in default under this
lease, Owner's consent (which must be in writing and in form 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
paragraph (a) of this Article, Owner shall not have exercised its option under
said paragraph (a) of this Article within the time permitted therefor and Tenant
is not then in default under this lease;
(ii) In Owner's 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 and (b)
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
reputable, of good character and has sufficient financial worth considering the
responsibility involved, and Owner has been furnished with reasonable proof
thereof; and is not any of the following: employment or travel agency (or
offices therefor); government or quasi-government or agency or department
thereof or owned in whole or in part by a government or quasi-government or
agency or department thereof (or offices therefor); charity, not-for-profit
organization or other organization dependent in whole or in part on charitable
contributions (or offices therefor); or any person or entity who shall create,
in Owner's reasonable opinion, any excessive traffic or use of the building
services;
(iv) Neither (a) the proposed assignee or subtenant
nor (b) any person which, directly or indirectly, controls, is controlled by, or
is under common control with, the proposed assignee or subtenant or any person
who controls the proposed assignee or sublessee, is then an occupant of any
part of the building or any other building in the County of New York owned or
operated under a ground or underlying lease by Owner or any person which,
directly or indirectly, controls, is controlled by, or is under common control
with Owner or any person who controls Owner;
(v) The proposed assignee or subtenant is not a
person with whom Owner is then negotiating (or with whom Owner has within the
prior six-month period negotiated) the lease of space in the building;
(vi) The form of the proposed sublease or assignment
shall be in form satisfactory to Owner and shall comply with the applicable
provisions of this Article;
(vii) The rental and other terms and conditions of
the sublease are the same as those contained in the proposed sublease furnished
to Owner pursuant to paragraph (a) of this Article;
(viii) Tenant shall reimburse Owner on demand for any
reasonable costs that may be incurred by Owner in connection with said
assignment or sublease, including, without limitation, legal costs incurred in
connection with the granting of any requested consent;
(ix) Tenant shall not have (1) advertised or
publicized in any way the availability of the demised premises without prior
notice to and approval by Owner, nor shall any advertisement state the name (as
distinguished from the address) of the building or the proposed rental, or (2)
listed the demised premises for subletting, whether through a broker, agent,
representative, or otherwise at a rental rate less than the greater of (x) the
fixed rent and additional rent then payable hereunder for such
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space, or (y) the fixed rent and additional rent at which Owner is then offering
to lease other space in the building.; and
(x) Tenant shall have employed Owner's leasing agent
for the building as Tenant's exclusive agent in connection with the sublease or
assignment.
(d) Each subletting pursuant to this Article shall be subject
to all of the covenants, agreements, terms, provisions and conditions contained
in this lease. Notwithstanding any such subletting or assignment and/or
acceptance of rent or additional rent by Owner from any subtenant or assignee,
Tenant shall and will remain fully liable for (and any assignee shall assume the
obligation 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, subtenant, assignee
or anyone claiming under or through any subtenant or assignee 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 or assignment, no other and further
subletting of the demised premises or assignment by Tenant or any person
claiming through or under Tenant 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 its option under paragraph (a) of this Article, 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 subtenant
or by any brokers or other persons claiming a commission or similar compensation
in connection with the proposed assignment or sublease.
(e) If (i) Owner fails to exercise its option under paragraph
(a) of this Article and consents to a proposed assignment or sublease, and (ii)
Tenant fails to execute and deliver the assignment or sublease to which Owner
consented within 45 days after the giving of such consent, then Tenant shall
again comply with all of the provisions and conditions of paragraph (a) of this
Article before assigning this lease or subletting all of the demised premises.
(f) 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 or any part thereof, 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 (1) be liable
for any previous act or omission of Tenant under such sublease, (2) be subject
to any offset; not expressly provided in such sublease, which theretofore
accrued to such subtenant against Tenant, or (3) be bound by any previous
modification of such sublease or by any previous prepayment of more than one
month's rent.
(g) If 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
all sums and other consideration paid to Tenant by the assignee for or by reason
of such assignment; and
(ii) in the case of a sublease, 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. The sums payable under this paragraph shall be
paid to Owner as and when paid by the subtenant to Tenant.
(h) Notwithstanding anything herein to the contrary, Owner's
consent shall not be required for an assignment to sublease to an "Affiliate" of
Tenant. "Affiliate" means a corporation or other entity directly controlled by,
controlling, or under common control with Tenant. No such assignment shall be
valid or effective unless, within ten (10) days after the execution thereof,
Tenant shall deliver to Owner all of the following: (l) a duplicate original
instrument of assignment, in form and substance reasonably satisfactory to
Owner, duly executed by Tenant, in which Tenant shall (a) waive all notices of
default given to the assignee, and all other notices of every kind or
description now or hereafter provided in this Lease, by statute or rulee of law,
and (b) Tenant shall acknowledge that Tenant's obligations with respect to this
Lease shall not be discharged, released or impaired by (i) such assignment, (ii)
any amendment or modification of this Lease, whether or not the obligations of
Tenant are increased thereby, (iii) any further assignment or transfer of
Tenant's interest in this Lease, (iv) any exercise, non-exercise or waiver by
Owner of any right, remedy, power
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<PAGE>
or privilege under or with respect to this Lease, (v) any waiver, consent,
extension, indulgence or other act or omission with respect to any other
obligations of Tenant under this Lease, (vi) any act or thing which, but for the
provisions of such assignment, might be deemed a legal or equitable discharge of
a surety or assignor, to all of which Tenant shall consent in advance, it being
the purpose and intent of Owner and Tenant that the obligations of Tenant
hereunder as assignor shall be absolute and unconditional under any and all
circumstances, and (ll) an instrument, in form and substance reasonably
satisfactory to Owner, duly executed by the assignee, in which such assignee
shall assume the observance and performance of, and agree to be bound by, all of
the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed.
66. Overtime HVAC. Subject to all of the provisions of this lease,
including, without limitation, Article 27 and Article 29, the rules and
regulations now or hereafter in force, and to all laws and other legal
requirements, including, without limitation, the requirements of insurance
companies, if (i) Tenant shall require air-conditioning or heat at times or on
days other than the times and days set forth in this lease, (ii) Tenant shall
have given Owner reasonable prior notice and (iii) Tenant is not then in default
under this lease following the giving of any required notice and the expiration
of the applicable cure period, Owner shall provide such air-conditioning or heat
through the existing system, upon reasonable advance notice from Tenant. Tenant
shall pay to Owner, within 10 days following the receipt of Owner's bill, a
charge equal to Owner's then established charges therefor.
67. Cancellation Option. Notwithstanding any provision of this lease to
the contrary, Tenant shall have the one-time right, at its option, to cancel
this lease, effective 11:59 P.M. New York Time on May 30, 2004 (the "Option
Date"). Tenant may exercise such option by delivering to Owner, not later than
December 1, 2003 (time being of the essence), a notice advising Owner of
Tenant's exercise of such option. In the event that Tenant timely exercises its
option to cancel this lease as provided herein, this lease and the term and the
estate granted hereby shall be wholly extinguished, and the term of this lease
shall expire, on the Option Date in the same manner and with the same force and
effect as if the Option Date was initially set forth in this lease as the
expiration date of this lease. In the event that Tenant does not timely exercise
its option to cancel this lease as provided herein, the option to cancel shall
terminate, and Tenant shall have no further right or option to cancel this
lease.
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IN WITNESS WHEREOF, the parties have duly executed this Rider as of the
day and year first above written.
489 FIFTH LLC
By: /s/ Kenneth Grant
-----------------------------------
Name: Kenneth Grant
Title: Pres.
Pogo.com Inc.
By: /s/ Mark Mitchell
-----------------------------------
Name: Mark Mitchell
Title: Senior Vice Pres.
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