New York-New York-675 Third Avenue Lease - Royal Realty Corp. and NetGravity Inc.
MANHATTAN PACIFIC MANAGEMENT CO., INC.
A Macklowe Organization
Company April 15, 1997
515 East 72nd Street
New York, New York 10021
142 West 57th Street
New York, New York 10019
212/265.5900 Re: Renewal Lease
Fax: 212/554.5894
Dear Tenant:
Enclosed please find your renewal lease. In
accordance with paragraph #33 of the lease rider
to the original lease, please note that effective
July 1, 1997, Riverterrace's rent stabilized
status expires and at the expiration of your
lease, your apartment is no longer subject to Rent
Stabilization Regulations.
Should you have any questions in this regard
please contact Joanie Schumacher in the Rental
Office at 988-5551.
Looking forward to your continued residency.
Sincerely yours,
/s/ Ronnie Rosen
Ronnie Rosen
Leasing Administrator
<PAGE>
YORK 72 ASSOCIATES
MANHATTAN PACIFIC MANAGEMENT CO., INC.
142 WEST 57TH STREET
NEW YORK, NEW YORK 10019
*LEASE RENEWAL AGREEMENT*
DATE: April 15, 1997 LEASE EXPIRATION August 31, 1997
------------------------- ------------------
John K. Donnelly APT.# 16F CURRENT RENT $3865.00
------------------------------ ----------------------
515 East 72nd Street CURRENT SECURITY $3865.00
------------------------------ -------------------
New York, New York 10021
------------------------------
Dear Tenant:
As you know, your lease will expire on the date shown above. Manhattan Pacific
Management is pleased to offer you a renewal on one of the following terms to be
selected by you:
<TABLE>
<CAPTION>
NEW ADDITIONAL TENANTS
RENT SECURITY INITIALS
<S> <C> <C> <C>
1) ONE YEAR LEASE @ 6% INCREASE $4096.90 $231,90
-------- ------- --------
2) TWO YEAR LEASE @ 8% INCREASE $4174.20 $309.20
-------- ------- --------
</TABLE>
To indicate your renewal term, please circle and initial the new rent amount.
Return all signed copies of this letter to us together with the additional
security 60 days of receipt of this letter. If you do not return this letter to
us within 60 days together with the additional security your lease shall expire
on 8/31/97, and we will expect you to vacate your apartment by the date your
lease expires.
This Lease Renewal Agreement constitutes a binding agreement between us and
incorporates all of the terms of the existing lease except any reference to the
Rent Stabilization Code shall be hereby deemed deleted and except where
otherwise specifically modified, changed or amended hereby.
Thank you for giving this your prompt attention. We look forward to your
continued tenancy.
Very truly yours,
MANHATTAN PACIFIC MANAGEMENT
TENANT'S SIGNATURE /s/ [Illegible]
------------------------------------
LEASE AMOUNT ACCEPTED
----------------------------------
OWNER'S SIGNATURE
--------------------------------------
<PAGE>
WINDOW GUARDS REQUIRED
LEASE NOTICE TO TENANT
YOU ARE REQUIRED BY LAW to have window guards installed if a child 10 years
of age or younger lives in your apartment.
YOUR LANDLORD IS REQUIRED BY LAW to install window guards in your
apartment:
* if you ASK him to put in window guards at any time (you need not give
a reason)
OR
* if a child 10 years of age or younger lives in your apartment.
IT IS A VIOLATION OF LAW to refuse, interfere with installation, or remove
window guards where required.
CHECK ONE
/ / CHILDREN 10 YEARS OF AGE
OR YOUNGER LIVE IN MY APARTMENT
/ / NO CHILDREN 10 YEARS OF AGE OR
YOUNGER LIVE IN MY APARTMENT
/ / I WANT WINDOW GUARDS EVEN
THOUGH I HAVE NO CHILDREN
10 YEARS OF AGE OR YOUNGER
/s/ John R. Donnelly
------------------------------
TENANT (PRINT)
/s/ John R. Donnelly
------------------------------
TENANT SIGNATURE
FOR FURTHER INFORMATION CALL:
Window Falls Prevention Program
New York City Department of Health
125 Worth Street, Room 222A
New York, New York 10013
(212) 788-4270
<PAGE>
------------------------------
STANDARD FORM OF OFFICE LEASE
------------------------------
The Real Estate Board of New York, Inc.
AGREEMENT OF LEASE, made as of this 2nd day of March 1998, between ROYAL REALTY
CORP., agent for Owner, having an address at 1155 Avenue of the Americas, 9th
Floor, New York, New York 10036 party of the first part, hereinafter referred to
as OWNER, and NET GRAVITY, INC., having an address at 1700 So. Amphlett Blvd.,
Ste. 350, San Mateo, CA party of the second part, hereinafter referred to as
TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner
a portion of the third floor known as room 315-25 and shown on the cross-hatched
floor plan attached hereto as Exhibit "A" in the building known as 675 Third
Avenue, in the Borough of Manhattan, City of New York, for the term and at an
annual rental rate as set forth in the rider annexed hereto and made part
hereof, which rental 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 one monthly installment of rent ($10,571.79), to
be applied against rent due after the end of the "free rent" period specified in
Article 37, 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 herein-
after provided.
Occupancy: 2. Tenant shall use and occupy demised premises for
executive and general offices, including software
research and development, 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 which consent will not
be unreasonably withheld, 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 4. Tenant shall throughout the term of this lease, take
Repairs: good care of the demand premises and the fixtures and
appurtenances therein; however, Owner shall provide the
cleaning services described in EXHIBIT B attached to this lease. Tenant shall be
responsible for all damage or injury to the demised premises or any other part
of the building and the system 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 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 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 6. Prior to the commencement of the lease term, if Tenant
Law, Fire is then in possession, and at all times thereafter,
Insurance, Floor Tenant, at Tenant's sole cost and expense, shall
Loads: 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
<PAGE>
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 to 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 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 of the building of which the demised premises form a
part, or which shall or might subject Owner to any liability or
responsibility to any person or for property damage. Tenant shall not keep
anything in the demised premises except as now or hereafter permitted by the
Fire Department, Board of Fire Underwriters, Fire Insurance Rating
Organization or other authority having jurisdiction, and then only in such
manner and such quantity so as not to increase the rate for fire insurance
applicable to the building, nor use the premises in a manner 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. 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 the facts therein stated and of the several items and charges to 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 it was designed to carry and which is allowed by law.
Owner reserves the right to prescribe the weight and position of all safes,
business machines and mechanical equipment. Such installations shall be
placed and maintained by Tenant, at Tenant's expense, in settings sufficient,
in Owner's 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, 8. Owner or its agents shall not be liable for any damage
Damage to property of Tenant or of others entrusted to
Reimbursement employees of the building, nor for loss of or damage to
Indemnity: 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 tenants or persons in, upon or about
said building or caused by operations in construction of any private, public or
quasi-public work. If at any time any windows of the demised premises are
temporarily closed, darkened or bricked up (or permanently closed, darkened or
bricked up, if required by law) for any reason whatsoever including, but not
limited to Owner's own acts, Owner shall not be liable for any damage Tenant may
sustain thereby and Tenant shall not be entitled to any compensation therefor
nor abatement of 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 unreasonable withheld.
Destruction, Fire 9. (a) If the demised premises or any part thereof shall
and Other Casualty: 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 (whether or not the demised
premises are damaged in whole or in part) if the building shall be so damaged
that Owner shall decide to demolish it or to rebuild it, then, in any of such
events, Owner may elect to terminate this lease by written notice to Tenant,
given within 90 days after such fire or casualty, or 30 days after adjustment of
the insurance claim for such fire or casualty, whichever is sooner, specifying a
date for the expiration of the lease, which date shall not be more than 60 days
after the giving of such notice, and upon the date specified in such notice the
term of this lease shall expire as fully and completely as if such date were the
date set forth above for the termination of this lease and Tenant shall
forthwith quit, surrender and vacate the premises without prejudice however, to
Landlord's rights and remedies against the 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 adjustments of insurance claims, labor
troubles and causes beyond Owner's control. After any such casualty, Tenant
shall cooperate with Owner's restoration by removing from the premises as
promptly as reasonably possible, all of Tenant's salvageable inventory and
moveable equipment, furniture, and other property. Tenant's liability for rent
shall resume five (5) days after written notice from Owner that the premises are
substantially ready for Tenant's occupancy. (e) Nothing contained hereinabove
shall relieve Tenant from liability that may exist as a result of damage from
fire or other casualty. Notwithstanding the foregoing, including Owner's
obligation to restore under subparagraph (b) above, each party shall look first
to any insurance in its favor before making any claim against the other party
for recovery for loss or damage resulting from fire or other casualty, and to
the extent that such insurance is in force and collectible and to the extent
permitted by law. Owner and Tenant each hereby releases and waives all right of
recovery with respect to subparagraphs (b), (d), and (e) above, against the
other or any one claiming through or under each of them by way of subrogation or
otherwise. The release and waiver herein referred to shall be deemed to include
any loss or damage to the demised premises and/or to any personal property,
equipment, trade fixtures, goods and merchandise located therein. The foregoing
release and waiver shall be in force only if both releasors' insurance policies
contain a clause providing that such 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: 10. If the whole or any part of the demised premises shall
be acquired or condemned by Eminent Domain for any
public or quasi public use or purpose, then and in that event, the term of this
lease shall cease and terminate from the date of title vesting in such
proceeding and Tenant shall have no claim for the value of any unexpired term of
said lease and assigns to Owner, Tenant's entire interest in any such award.
Tenant shall have the right to make an independent claim to the condemning
authority for the value of Tenant's moving expenses and personal property, trade
fixtures and equipment, provided Tenant is entitled pursuant to the terms of the
lease to remove such property, trade fixtures and equipment at the end of the
term and provided further such claim does not reduce Owner's award.
Assignment, 11. Subject to Article 46 of this Lease, Tenant, for
Mortgage, Etc.: 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 are as set forth in
Article 38 of this Lease. Tenant covenants and agrees that at all times its use
of electric current shall not exceed the capacity of existing feeders to the
building or the risers or wiring installation and Tenant may not use any
electrical equipment which, in Owner's opinion, reasonably exercised, will
overload such installations or interfere with the use thereof by other tenants
of the building. The change at any time of the character of electric service
shall in no wise make Owner liable or responsible to Tenant, for any loss,
damages or expenses which Tenant may sustain.
Access to Premises: 13. Owner or Owner's agents shall have the right (but shall
not be obligated) to enter the demised premises in any
emergency at any time, and, at other reasonable times, to examine the same and
to make such repairs, replacements and improvements as Owner may deem necessary
and reasonably desirable to 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. Owner will use
reasonable efforts to minimize interference with the conduct of tenant's
business; however, in no event will Owner be obligated to incur any form of
overtime costs or expenses. Throughout the term hereof Owner shall have the
right to enter the demised premises at reasonable hours and upon reasonable
oral, written, telephonic or other notice (except no notice shall be required in
an emergency) 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
<PAGE>
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 14. No Vaults, vault space or area, whether or not enclosed
Space, Area: 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 abatement of rent,
nor shall such revocation, diminution or requisition be deemed constructive or
actual eviction. Any tax, fee or charge of municipal authorities for such vault
or area shall be paid by Tenant.
Occupancy: 15. Tenant will not at any time use or occupy the demised
premises in violation of the certificate of occupancy
issued for the building of which the demised premises are a part. Tenant has
inspected the premises and accepts them as is, subject to Article 43 of this
Lease. In any event, Owner makes no representation as to the condition of the
premises and Tenant agrees to accept the same subject to violations, whether or
not of record.
Bankruptcy: 16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be 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 this lease pursuant to (a) hereof, Owner shall forthwith,
notwithstanding any other provisions of this lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rent reserved hereunder for the unexpired portion of the
term demised and the fair and reasonable rental value of the demised premises
for the same period. In the computation of such damages the difference between
any installment of rent becoming due hereunder after the date of termination and
the fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof be re-let by 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 so re-let during the term of the re-letting. Nothing
herein contained shall limit or prejudice the right of the Owner to prove for
and obtain as liquidated damages by reason of such termination, an amount equal
to the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
Default: 17. (1) If Tenant defaults in fulfilling any of the
covenants of this lease other than the covenants for
the payment of rent or additional rent, or if the demised premises 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
Section 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 to 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 payments
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 (illegible) to re-enter or to institute legal proceedings
to that end. If Tenant shall make default hereunder prior to the date filed 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 18. In case of any such default, re-entry, expiration,
and Waiver of and/or dispossess by summary proceedings or otherwise,
Redemption: (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 also pay Owner as liquidated
damages for the failure of Tenant to observe and perform said Tenant's covenants
herein contained, any deficiency between the rent hereby reserved and/or
covenanted to be paid and the net amount, if any, of the rents collected on
account of the lease or leases of the demised premises for each month of the
period which would otherwise have constituted the balance of the term of this
lease. The failure of Owner to re-let the premises or any part or parts thereof
shall not release or affect Tenant's liability for damages. In computing such
liquidated damages there shall be added to the said deficiency such expenses as
Owner may incur in connection with re-letting, such as legal expenses,
reasonable attorneys' fees, brokerage, advertising and for keeping the demised
premises in good order or for preparing the same for re-letting. Any such
liquidated damages shall be paid in monthly installments by Tenant on the rent
day specified in this lease and any suit brought to collect the amount of the
deficiency for any month shall not prejudice in any way the rights of Owner to
collect the deficiency for any subsequent month by a similar proceeding. Owner,
in putting the demised premises in good order or preparing the same for
re-rental may, at Owner's option, make such alterations, repairs, replacements,
and/or decorations in the demised premises as Owner, in Owner's sole judgement,
considers advisable and necessary for the purpose of re-letting the demised
premises, and the making of such alterations, repairs, replacements, and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Owner shall in no event be liable in any way whatsoever
for failure to re-let the demised premises, or in the event that the demised
premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any of
the covenants or provisions hereof, Owner shall have the right of injunction and
the right to invoke any remedy allowed at law or in equity as if 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 convenants and conditions of this lease, or otherwise.
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 so paid or obligations incurred with interest and
costs. The foregoing expenses incurred by reason of Tenant's default shall be
deemed to be additional rent hereunder and shall be paid by Tenant to owner
within fifteen (15) 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 20. Owner shall have the right at any time without the same
Alterations and constituting an eviction and without incurring
Management: 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 21. Neither Owner nor Owner's agents have made any
by Owner: 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 possession was so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreements 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 24. If Owner is unable to give possession of the demised
Possession: premises on the date of the commencement of the term
hereof, because of the holding-over or removal of
possession of any tenant, undertenant or occupant 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 to 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 of 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.
The 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 and 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 the 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 26. It is mutually agreed by and between Owner and
Tenant by Jury: that the respective parties hereto shall and they
hereby do waiver 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 27. This Lease and the obligation of Tenant to pay rent
Perform: hereunder and perform all of the other covenants and
agreements hereunder on part of Tenant to be performed
shall in no wise be affected, impaired or excused because Owner is unable to
fulfill any of its obligations under this lease or to supply or is delayed in
supplying any service expressly or impliedly to be supplied or is unable to
make, or is delayed in making any repair, additions, alterations or decorations
or is unable to supply or is delayed in supplying any equipment, fixtures, or
other materials if Owner is prevented or delayed from so doing by reason of
strike or labor troubles or any cause whatsoever 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 or by recognized overnight courier addressed to
Tenant at the building of which the demised premises form a part or at the
last known residence address or business address of Tenant or left at any of
the aforesaid premises addressed to Tenant and the time of the [ILLEGIBLE] of
such bill or statements 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 as such other address as Owner shall
designate by written notice.
Services Provided 29. As long as Tenant is not in default under any of the
by Owners: 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 in
unusual quantities (of which fact Owner shall be the sole judge), Owner may
install a water meter at Tenant's expense which Tenant shall thereafter
maintain at Tenant's expense in good working order and repair to register
such water consumption and Tenant shall pay for water consumed as shown on
said meter as additional rent as and when bills are rendered; (d) cleaning
service for the demised premises on business days at Owner's expense provided
that the same are kept in order by Tenant; (e) if the demised premises are
serviced by Owner's 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 a.m. 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 enurely freed and relieved of all covenants and
obligations of Owner hereunder, and it shall be deemed and construed without
further agreement between the parties or their successors in interest, or
between the parties and the purchaser, at any such sale, or the said lessee
of the building, or of the land and building that the purchaser or the lessee
of the building has assumed and agreed to carry out any and all covenants and
obligations of Owner, hereunder. The words "re-enter" and "re-entry" as used
in this lease are not restricted to their technical legal meaning. The term
"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 32. If an excavation shall be made upon land adjacent to
Excavation-Shoring: 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 damages 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 33. Tenant and Tenant's servants, employees, agents,
Regulations: 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 $42,287.16
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 payments of rent
and additional rent, Owner may use, apply or retain the whole or any part of the
security so deposited to the extent required for the payment of any rent and
additional rent or any other sum as to which Tenant is in default or for any sum
which Owner may expend or may be required to expend by reason of Tenant's
default in respect of any of the terms, covenants and conditions of this lease,
including but not limited to, any damages or deficiency in the 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 as the end of the Lease and after delivery of entire possession of
the demised premises to Owner except that if after twenty four (24) months from
the Commencement Date Tenant has faithfully performed and observed the
provisions and conditions of this Lease and has not defaulted 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, then Owner will at that
time refund to Tenant security in an amount equal to one monthly installment of
rent; and except that if after fourty eight (48) months from the Commencement
Date Tenant has faithfully performed and observed the provisions and conditions
of this Lease and has not defaulted 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, and Tenant has provided to Owner its audited financial
statements for all the years in which it has been a party to this Lease and said
financial statements reflect a net operating profit, then Owner will at that
time refund to Tenant additional security in an amount equal to one monthly
installment of rent. In the event of a sale of the land and building or leasing
of the building, of which the demised premises form a part, Owner shall have the
right to transfer the security to the vendee or lessee and Owner shall thereupon
be released by Tenant from all liability for the return of such security; and
Tenant agrees to look to the new Owner solely for the return of said security,
and it is agreed that the provisions hereof shall apply to every transfer or
assignment made of the security to a new Owner. Tenant further covenants that
it will not assign or encumber or attempt to 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 35. Tenant, at any time, and from time to time, upon at
Certificate: least twenty (20) days prior notice by Owner, shall
execute, acknowledge and deliver to Owner and/or to any
other person, firm or corporation specified by Owner, a statement certifying
that this Lease is unmodified and in full force and effect (or if there
have been modifications, that the same is in full force and effect as modified
and stating the modifications), stating the dates to which the rent and
additional rent have been paid, and stating whether or not there exists any
default by Owner under this Lease, and, if so, specifying each such default.
Successors and 36. The covenants, conditions and agreements contained in
Assigns: this lease shall bind and inure to the benefit of Owner
and Tenant and their respective heirs, distributees,
executors, administrators, successors, and except as otherwise provided in
this lease, their assigns. Tenant shall look only to Owner's estate and
interest in the land and building, for the satisfaction of Tenant's remedies
for the collection of a judgment (or other judicial process) against Owner in
the event of any default by Owner hereunder, and no other property or assets
by such Owner (or any partner, member, officer or director thereof disclosed
or undisclosed), shall be subject to (illegibly) execution or other
enforcement procedure for the satisfaction of Tenant's remedies under or with
respect to this lease, the relationship of Owner and Tenant hereunder, or
Tenant's use and occupancy of the demised premises.
--------------------
- Space to be filled in or deleted.
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
Witness for Owner: ROYAL REALTY CORP., Agent
-----------------------------------
By: /s/ Douglas Durst
----------------------------------- -----------------------------------
Name: Douglas Durst
Title: President
Witness for Tenant: NET GRAVITY, INC.
-----------------------------------
By: /s/ Stephen E. Recht
----------------------------------- -----------------------------------
Name: Stephen E. Recht
Title: Vice President
Finance & Administration
Chief Financial Officer
ACKNOWLEDGMENTS
CORPORATE OWNER
STATE OF NEW YORK
County of New York
On this 2nd day of March 1998, before me personally came Douglas Durst
to me known, who being by me duly sworn, did depose and say that: he resides
in NY, NY that he is the President of Royal Realty Corp. the corporation
described in and which executed the foregoing instrument, as OWNER, that he
knows the seal of said corporation; the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board of
Directors of said corporation, and that he signed his name thereto by like
order.
/s/ Bobbie Martowicz
------------------------------
BOBBIE MARTOWICZ
NOTARY PUBLIC State of New York
No. O1MAS016842
Qualified in New York County
Commission Expires August 23, 1999
CORPORATE TENANT
STATE OF NEW YORK
County of New York
On this day of 19 , before me personally came to me
know, who being by me duly sworn, did depose and say that he resides in
that he is the of the corporation described
in and which executed the foregoing instrument, as TENANT, that he knows the
seal of said corporation; the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the Board of Directors of said
corporation, and that he signed his name thereto by like order.
------------------------------
INDIVIDUAL OWNER
STATE OF NEW YORK
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.
------------------------------
INDIVIDUAL TENANT
STATE OF NEW YORK
County of
On this day of 19 , before me personally came to be
known and known to me to be the individual described in and who, as TENANT,
executed the foregoing instrument and acknowledged to me that he
executed the same.
------------------------------
<PAGE>
- 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 designated 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 or
rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for any
purposes 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
herein nor shall any business vehicles, animals, fish, or birds be kept in or
about the building. Smoking or carrying lighted cigars or cigarettes in the
elevators of the building is prohibited.
4. No awnings or other protections shall be attached to the outside walls of
the building without the prior written consent of Owner.
5. No sign, advertisements, 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 the Tenant may appear on the entrance
door of the premises. In the event of the 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 direction 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 to 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 the 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 (illegible) 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 and 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 of 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 used 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 work days and prior to 3:00 p.m. on the day prior in 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 and 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, as
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 indemnify,
defend 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 FOR OF
OFFICE
LEASE
The Real Estate Board of New York, Inc.
-C- 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>
LEASE RIDER
THIS RIDER CONTAINS 36 PAGES, EACH AND EVERY ONE OF WHICH FORMS A PART OF THE
LEASE DATED 3-2, 1998 BETWEEN ROYAL REALTY CORP., AGENT, AS OWNER, AND NET
GRAVITY, INC., AS TENANT.
37: A. This Lease and the term hereof shall commence on the date (the
"Commencement Date") on which the work outlined in Article 43 is substantially
complete and the demised premises are ready for Tenant's occupancy, and shall
expire on August 31, 2003 (the "Expiration Date"), or on such earlier date upon
which said term may expire or be cancelled or terminated pursuant to any of the
conditions or covenants of this Lease or pursuant to law. Owner agrees to give
Tenant not less than ten (10) days advance written notice of the Commencement
Date. Following Tenant's receipt of such notice, Tenant's architect may inspect
the demised premises and may provide Owner with a "punch list" of items to be
completed by Owner. Owner shall promptly complete any such punch list items.
Tenant shall commence the payment of fixed annual rent ("Fixed Rent") on
the Commencement Date, in the amount of one hundred twenty six thousand eight
hundred sixty one and 50/100 ($ 126,861.50) Dollars per annum ($ 10,571.79 per
month) from the Commencement Date until and including the thirty-sixth (36th)
month thereafter; and one hundred thirty four thousand one hundred thirty one
and 50/100 ($ 134,131.50) Dollars per annum ($ 11,177.63 per month) from the
thirty-seventh (37th) month following the Commencement Date through and
including the remainder of the term of this Lease, which shall expire on August
31, 2003.
Fixed rent shall be payable in equal monthly installments (during the
applicable fiscal year) in advance on the first day of each month during the
term of this Lease at the office of Owner or such other place as Owner may
designate, without any offset or deduction whatsoever, except that in the event
the Lease shall commence on a day other than the first day of a calendar month,
the rental for that month shall be prorated.
All rent and additional rent payable under this Lease shall be paid by
check of Tenant drawn on a bank which is either (a) a member of or clears its
checks through the New York Clearing House Association (the "NYCHA"), or (b) a
bank with a New York City banking office which clears checks in the same period
of time as NYCHA bank. Failure to pay rent by such a check shall be deemed a
material default by Tenant under this Lease, except that Tenant may wire funds
constituting the Fixed Rent pursuant to any separate written agreement as may
exist from time to time between Tenant and Owner relating to such form of
payment.
Anything to the contrary provided for hereinabove notwithstanding, so long
as Tenant shall not be in breach or default of any of the terms and provisions
of this Lease beyond any applicable notice or grace periods, Tenant shall not be
obligated to pay $ 9,693.33 of each monthly payment of the Fixed Rent provided
for hereinabove for that period of time commencing on the Commencement Date and
ending on the sixtieth (60th) day thereafter, both dates inclusive; and (ii)
shall receive a rent credit equal to $ 9,087.50 to be used toward's Tenant's
third (3rd) monthly payment of the Fixed Rent. Tenant shall, however, continue
to be obligated to pay any and all additional rent (including, but not limited
to, ERIF under Article 38 and additional rent payable under Articles 38 and 39
hereof) and other charges payable by Tenant hereunder in accordance with the
terms of this Lease, commencing on the Commencement Date.
B. Except as set forth in the "punch list," the taking of possession of
the demised premises shall be deemed an acceptance of the same by Tenant and
shall be deemed substantial completion by
<PAGE>
Owner of all of Owner's work in accordance with Tenant's approved plans and
specifications for the purposes of determining the Commencement Date. For the
purposes of this Article, the work to be done by owner shall be deemed
substantially complete even though minor details or adjustments which shall not
materially interfere with Tenant's use of the demised premises may not then have
been completed, but which work Owner agrees will thereafter be completed with
due diligence. If there is a delay in the substantial completion of the demised
premises, or a portion thereof, due to (i) any act or omission by Tenant, its
contractors, subcontractors, architects, space designers, agents or employees,
(ii) special work, changes, alterations or additions in Tenant's plans required
or requested by Tenant or (iii) delays by Tenant in submitting any plans and/or
specifications, supplying information or estimates, giving authorizations or
other approvals, then the demised premises shall be deemed substantially
complete, and the Commencement Date shall be deemed to have occurred, on the
date on which the demised premises or such portion would have been substantially
complete but for such Tenant delay, even though work to be done by Owner has not
been commenced or completed.
C. Promptly after the Commencement Date, Owner and Tenant will execute an
agreement in recordable form, hereafter referred to as the "Commencement Date
Agreement," stating among other things the Commencement Date of the term of this
Lease. Tenant's failure or refusal to sign the same shall in no event affect
Owner's designation of the Commencement Date.
38: A. With reference to Article 12 hereof, Owner shall furnish to Tenant
electricity for normal business purposes as provided in Paragraph 38E in the
demised premises at no additional charge or rental, subject however to future
adjustments after the Commencement Date, in the event that there is an increase
or decrease in the public utility rate schedule or utility or sales taxes
thereon pursuant to which electricity shall be furnished to Owner by the public
utility company serving the Building in which the demised premises are located
and the Tenant shall have the right so long as it shall not be in default in the
performance of the terms of this Lease to use electricity on an unmetered basis
as an additional service. Each such adjustment shall be computed by multiplying
the electrical rent inclusion factor ("ERIF") set forth in Paragraph 38E, as
adjusted, by the percentage of increase or decrease, as the case may be, in the
public utility rate schedule or utility or sales taxes thereon applicable to the
Building and by adding or subtracting the product thereof to or from said ERIF
to determine the amount of the adjusted rent and the adjusted ERIF.
B. In order that personal safety and property of the tenants, occupants
and Owner of the demised premises may not be imperiled by overtaxing of the
capacity of the electrical distribution system of the demised premises or of the
Building, Tenant agrees that without the prior written consent of Owner, Tenant
shall not make any changes in, or alterations to the electrical system of the
demised premises as the installation of said system shall be indicated by the
final electrical plans submitted by the Tenant to Owner.
C. Owner shall not be liable to Tenant for any loss, damage or expense
resulting from change in the quantity or character of the electric service or
its being no longer suitable for Tenant's requirements or due to cessation or
interruption of the supply of electricity.
D. Owner, upon thirty (30) days' prior written notice to Tenant, may
discontinue the service of electricity to Tenant without affecting the tenancy,
this Lease or Tenant's liability hereunder and without liability for loss or
damage caused to Tenant by such discontinuance; except that, in the event of the
discontinuance of such service, Tenant shall be entitled to a monthly rent
reduction equal to the then ERIF and Owner shall thereafter have no obligation
to furnish electrical energy to Tenant. Owner, in that event, shall permit
Tenant to purchase
-2-
<PAGE>
electricity directly from the public utility system servicing the Building and
shall permit Owner's electrical distribution system to be used for that purpose
to the extent that it is available and may safely be so used.
E. As of the date of this Lease, the ERIF is eight hundred seventy eight
and 46/100 ($ 878.46) Dollars per month, which factor is based upon Tenant's
use, during regular business hours, of lighting fixtures and electrically
operated equipment which operate on a standard 120 volt convenience receptacle
on a 15 Amp general purpose branch circuit with not less than eight (8) outlets
on such circuit. The use of electricity on other than regular business hours or
for fixtures or equipment which are not accommodated by such base receptacles
may be permitted within the limitation of Paragraph 38B provided that the ERIF
shall be increased in an amount to be determined from a survey made by a
reputable independent electrical engineer or consultant selected by Owner.
39: The annual rental rate hereinbefore set forth shall be adjusted from time
to time as in this Article provided to reflect increases in Owner's expenses
incurred in operating the Building and Tenant shall pay such rental, as adjusted
pursuant to the provisions hereof, as herein before provided. Owner shall have
all of the rights and remedies for Tenant's failure to make a payment under this
Article as Owner has for Tenant's failure to pay Fixed Rent.
A. For the purposes of this Article:
1. "BASE TAX" shall mean Taxes as finally determined for the Base Tax
Year.
2. "BASE TAX YEAR", shall mean the fiscal year July 1, 1997 to June 30,
1998, inclusive.
3. "TAX YEAR" shall mean each successive New York City real estate fiscal
year commencing on July 1st and expiring on June 30th. If the present use of
July 1 to June 30 real estate tax year shall change, then, such changed tax year
shall be used with appropriate adjustment for the transition.
4. "TAXES" shall mean the total of all real estate taxes, assessments,
special and extraordinary assessments, business improvements district charges
and assessments and government levies imposed upon or with respect to the land
and Building of which the demised premises are a part and any franchise, income,
profit, value added, use, or other tax imposed in addition to, in whole or
partial substitution for, or in lieu of an increase (in whole or part), in such
taxes, whether due to a change in the method of taxation or otherwise.
5. "TENANT'S PERCENTAGE" shall mean for purposes of this Lease and all
calculations in connection herewith one and twenty four hundredths percent
(1.24%), which percentage has been computed on the basis of a fraction, the
numerator of which is the agreed rentable square foot area of the demised
premises and the denominator of which is the agreed rentable square foot area of
the Building, both as set forth below. The parties agree that, for purposes of
this Article and the calculations to be made hereunder, the agreed rentable
square foot area of the demised premises shall be deemed to be 3,635 square
feet, and that the agreed rentable square foot area of the Building shall be
deemed to be 293,973 square feet.
6. (a) "BASE RATE" shall mean the minimum regular hourly wage rate for Porters
in Class A office buildings established by agreement between the Realty Advisory
Board on Labor Relations, Inc., ("Realty Advisory Board") and Local 32B-J of the
Building Service Employees International Union AFL-CIO ("Local 32B") in effect
as of January 1, 1998.
-3-
<PAGE>
(b) "Operating Expense Rate" shall mean, for any calendar year, the
minimum regular hourly wage rate for Porters in Class A office buildings then
established by agreement between the Realty Advisory Board and Local 32B or by
the successors to either or both of them. (This rate shall be used in
computations under this Article whether or not Porter's wages are actually paid
by or for Owner or by independent contractors who furnish such services to the
demised premises.)
If any such agreement shall require the regular employment of Porters on
days or hours when overtime or other premium pay rates are in effect, then the
term "minimum regular average hourly wage rate," as used to determine the
Operating Expense Rate, shall mean the average hourly wage rate for the hours in
a calendar week during which Porters are required to be regularly employed
(e.g., if as of February 1, 1987, an agreement between the Realty Advisory Board
and Local 32B required the regular employment of Porters for forty (40) hours
during a calendar week at a regularly hourly wage rate of $8.50 for the first
thirty (30) hours and at an overtime hourly average wage rate of $12.00 for the
remaining ten (10) hours, then the minimum regular average hourly wage rate
under this subsection as of February 1, 1987 would be the sum arrived at by
dividing the total weekly average wages of $375 by the total number of required
hours of employment which is forty (40), resulting in a minimum regular average
hourly wage rate of $9.375). The computation of the minimum regular average
hourly wage rate shall be on the same basis whether based on an hourly or other
pay scale but predicated on the number of required hours in a calendar week.
If the prescribed work week shall be less than forty (40) hours, then the
minimum regular average hourly wage rate shall be adjusted to an average amount
for forty (40) hours, taking into consideration the overtime hourly wage rate
for the number of hours between the prescribed work week and forty (40) hours
(in the same manner as above provided where the prescribed work week is forty
(40) hours, with a portion of the hours being subject to a regular hourly wage
rate and the balance subject to an overtime hourly wage rate). If length of
service shall be a factor in determining any element of wage, it shall be
conclusively presumed that all employees have at least five (5) years of
service.
Each reference to "the minimum regular hourly wage rate" in this Lease is
to such wage rate exclusive of so-called "fringe benefits."
7. The term "Porters" shall mean that classification of employee engaged
in the general maintenance and operation of Class A Office Buildings most nearly
comparable to the classification now applicable to porters in the current
agreements between the Realty Advisory Board and Local 32B (which classification
is presently termed "others" in said agreement).
8. The term "Class A Office Buildings" shall mean office buildings in the
same class or category as the Building under any building operation agreement
between the Realty Advisory Board and Local 32B, regardless of the designation
given to such office buildings in any such agreement.
B. If the Operating Expense Rate in effect as of January 1st of any
year of the term of this Lease shall be such as to constitute an increase above
the Base Rate, then Tenant shall pay to Owner, as additional rent, for such year
an amount equal to a sum computed at the rate of one cent per square foot of the
rentable area in the demised premises for each one cent or part thereof that the
Operating Expense Rate in effect as of January 1st of any year of the Lease
shall constitute an increase above the "Base Rate". For example, assuming the
area of the demised premises were 1,000 rentable square feet and assuming there
were a 15 cent increase in the Operating Expense Rate, there would be a $150.00
increase in the annual rent by reason thereof (1 cent x 15 x 1,000). Owner
shall advise Tenant by a written statement (an
-4-
<PAGE>
"Operating Expense Rate Statement") by Owner's accountant or by Owner or its
agent, of any change in Operating Expense Rate and the effective date thereof.
Such Operating Expense Rate statement shall show the Tenant's new annual rental
rate caused by each change and the monthly installments which shall be
one-twelfth (1/12) thereof, and the manner in which the adjustment is computed
with appropriate adjustment if the Commencement Date shall not be the first day
of a calendar month. Any decrease in annual rental rate under this Paragraph B
can be applied only to reduce prior increases under this Paragraph.
Each Operating Expense Rate Statements furnished to Tenant shall constitute
a final determination as between Owner and Tenant of the Operating Expense Rates
for the periods represented thereby, unless Tenant, within fifteen (15) days
after they are furnished, shall give a notice to Owner, which notice shall
specify the particular respects in which the disputed Operating Expense Rate
Statement is alleged to be inaccurate or inappropriate. Pending the resolution
of such dispute, Tenant shall pay any increases above the Base Rate in
accordance with the Operating Expense Rate Statements furnished by Owner and
Paragraph B of this Article.
C. The annual rental rate shall be increased for each Tax Year during the
term of this Lease by Tenant's Percentage of the amount by which the Taxes Owner
is required to pay in each such Tax Year exceeds the Base Tax. Owner shall
advise Tenant, by a written statement (a "Tax Statement") by Owner's accountant
or by Owner or its agent, of any change in Taxes and the effective date thereof.
The Tax Statement shall show Tenant's new annual rental rate caused by each
change and the monthly installments shall be one-twelfth (1/12th) thereof, and
the manner in which the adjustment is computed, including any adjustments in
real estate tax assessments affecting the Taxes for any Tax Year. Said
one-twelfth (1/12th) of such increase shall be due and payable with monthly
installments of Fixed Rent.
Notwithstanding the foregoing, if Taxes are required to be paid prior to
the expiration of the appropriate calendar quarter or calendar half-year or
whatever other period by which Taxes must be paid or prior to the expiration of
any Tax Year to avoid a penalty or late charge, then Owner may immediately elect
to bill Tenant for its above specified percentage of any increase in Taxes in
excess of the Base Tax with respect to such calendar quarter, half-year or
other period of such Tax Year, as the case may be, and Tenant shall pay same
within fifteen(15) days thereafter. Any decrease in annual rental rate under
this Paragraph C can be applied only to reduce prior increases under this
Paragraph. To the extent that the change is relevant to a period for which
Tenant has paid its monthly installments of Fixed Rent, a retroactive lump sum
payment shall be made by Tenant within fifteen (15) days of being billed for the
same by Owner. If, prior to any increase in the annual rent pursuant to this
Paragraph C, Owner shall have obtained a reduction of the proposed assessed
valuation of the land and Building of which the demised premises are a part and
therefore of the Taxes, then the term "Taxes" for that Tax Year shall be deemed
to include the amount of Owner's expenses in obtaining such reduction of the
proposed assessed valuation, including attorneys' and appraisers, fees.
The Tax Statements furnished to Tenant shall constitute a final
determination as between Owner and Tenant of the Taxes for the periods
represented thereby, unless (i) the Taxes for any such period are subsequently
reduced by tax certiorari proceedings or otherwise, or (ii) Tenant, within
thirty (30) days after they are furnished, shall give a notice to Owner, which
notice shall specify the particular respects in which the disputed Tax Statement
is alleged to be inaccurate or inappropriate. Pending the resolution of such
dispute, Tenant shall pay Tenant's Percentage of the Taxes to Owner in
accordance with the Tax Statements furnished by Owner. Tenant shall have the
right to receive a copy of any tax bill or
-5-
<PAGE>
statement upon which the disputed Tax Statement is based within twenty (20) days
after demand therefor.
D. Owner's failure to render a Tax Statement and/or an Operating Expense
Rate Statement with respect to any time period shall not prejudice Owner's right
to render such a statement retroactively with respect to such period. The
obligations of Tenant under the provisions of this Article with respect to any
increase in the rent shall survive the expiration or sooner termination of the
term. Following rendition of an Operating Expense Rate Statement which shows an
increase in the rent for any Operating Expense Rate year, Tenant shall pay to
Owner an the first day of each month during such Operating Expense Rate year a
sum equal to one-twelfth (1/12th) of the increase in the rent shown upon such
Operating Expense Rate Statement for such Operating Expense Rate year. If any
such Operating Expense Rate Statement shall be rendered after the commencement
of any operating Expense Rate year, Tenant shall pay to Owner on the first day
of the calendar month next following the rendition of such Operating Expense
Rate Statement (in addition to the payment required by the immediate preceding
sentence), a sum equal to one-twelfth (1/12th) of the increase in the rent for
such Operating Expense Rate year shown on such statement multiplied by the
number of months which may have elapsed between January 1st of such Operating
Expense Rate year and the month in which such payment is required to be made.
All sums payable by Tenant to Owner pursuant to the provisions of this Article
shall be collectible by Owner in the same manner as any installment of Fixed
Rent.
E. In the event that any controversy arises concerning: (i) the
designation under this Article of a successor to any of the organizations named
herein, in the event any or all shall no longer exist; or (ii) the proper
substitute for the "Operating Expense Rate" if a rate for or the category in
which Porters are presently classified shall cease to exist, then, such
controversy shall be determined by arbitration in accordance with the provisions
of Article 40 hereof. Pending the entry of a judgment confirming the award in
such arbitration, the annual rental rate shall be payable in accordance with
Owner's initial determination. The arbitrators shall not have the authority to
modify this Lease or substitute a different method of calculating rental
adjustments other than as expressly set forth herein.
40: Whenever in this Lease it is provided that a dispute shall be determined by
arbitration, the arbitration shall be conducted as provided in this Article.
The party desiring such arbitration shall give written notice to that effect to
the other, specifying the dispute to be arbitrated and the name and address of
the person designated to act as the arbitrator in its behalf. Within ten (10)
days after said notice is given, the other party shall give written notice to
the first party, specifying the name and address of the person designated to act
as arbitrator on its behalf. If the second party fails to notify the first
party of the appointment of its arbitrator as aforesaid by the time above
specified, then the appointment of the second arbitrator shall be made in the
same manner as hereinafter provided for the appointment of a third arbitrator.
The arbitrators so chosen shall meet within ten (10) days after the second
arbitrator is appointed and within thirty (30) days thereafter shall decide the
dispute. If within said period they cannot agree upon their decision, they
shall appoint a third arbitrator and if they cannot agree upon said appointment,
the third arbitrator shall be appointed upon their application or upon the
application of either party, by the American Arbitration Association in the City
of New York. The three arbitrators shall meet and decide the dispute. A
decision in which two of the three arbitrators concur shall be binding and
conclusive upon the parties. In designating arbitrators and in deciding the
dispute, the arbitrator shall act in accordance with the rules then in force of
the American Arbitration Association subject, however, to such limitations as
may be placed upon them by the provisions of this Lease. Each party shall pay
the fees and expenses of the arbitrator appointed by or on behalf of it, and
-6-
<PAGE>
each shall pay one-half of the fees and expenses of the third arbitrator, if
any.
The obligation of Owner and Tenant to submit a dispute to arbitration is
limited to disputes arising under those Articles of this Lease which
specifically provide for arbitration.
41: Each party covenants, warrants and represents to the other party that the
sole broker with whom such party has dealt in this transaction is The Staubach
Company of New York (the "Broker"), and that no conversations or negotiations
were had by such party with any broker or finder other than the Broker
concerning this Lease or the renting of the demised premises. Each party agrees
to indemnify, defend and hold the other party harmless from and against any and
all claims for fees and commissions and against any liability (including
reasonable attorneys' fees and disbursements) arising out of any conversations
or negotiations had by the indemnifying party with any broker or finder other
than the Broker concerning this Lease.
In reliance on the foregoing representation, Owner has agreed to pay the
Broker's commission, if any, pursuant to separate agreement.
42: This Lease is not to be considered binding upon Owner or Tenant, unless and
until it is signed by Owner and Tenant and duplicate originals hereof are
delivered to Owner and Tenant.
43: Notwithstanding anything to the contrary contained herein, Tenant
acknowledges that it has inspected the demised premises, is fully familiar with
the condition thereof, and agrees to take possession of the demised premises on
the Commencement Date in their present "as-is" condition. Owner shall not be
required to perform any alterations or decorations or furnish any materials in
or to the demised premises in order to suit them for Tenant's occupancy, except
that Owner at its sole cost and expense, shall make the following modifications
in a good and workmanlike manner in accordance with all applicable laws to the
premises using building standard materials:
1) Furnish and install new building standard carpet or vinyl composition
tile throughout the demised premises. Where carpeting is installed,
it shall be Shaw Contract Carpet Internet Collection, in colors
selected by Tenant from samples submitted by Owner. Furnish and
install 4" high vinyl base, cover or straight, on all partitions and
columns, in color selected by Tenant.
2) Paint all surfaces currently painted in the demised premises, not more
than one color per room, two coats, standard of the building, in
colors selected by Tenant.
3) Furnish and install pantry, adjacent to an existing wet column,
consisting of 6'0" plastic laminate countertop with upper and lower
cabinets, sink, faucet and under-counter refrigerator, per attached
plan attached as Exhibit "B-1" hereto.
4) Furnish existing entry door with lockset and two (2) sets of keys.
In no event, however, shall Owner be required to employ any "overtime"
labor or pay any "overtime" or other premium pay rate in connection with any of
the foregoing work set forth in this Article 43.
All work to be performed in the demised premises shall be in conformance
with the building standards attached hereto as Exhibit "C".
44: ADDENDUM to Article 29 (e) of printed form of Lease - If Tenant shall
require HVAC service at any time other than during
-7-
<PAGE>
business hours on business days, Owner shall furnish such service (herein called
"after hours air-conditioning service") upon advance written notice from Tenant
as specified below. Tenant shall pay to Owner the sum of $250.00 per hour for
overtime air-cooling and $225.00 per hour for overtime heat on Owner's demand as
additional rent. Such sums shall be increased over the term of this Lease as
Owner's cost for providing the service is increased including the cost of labor,
maintenance (including the cost of replacement parts), utilities, depreciation
and supplies used in providing such after hours air-conditioning service. If
Tenant shall not pay the same, Tenant shall also pay interest thereon at the
rate then announced by Citibank, N.A. (or The Chase Manhattan Bank, N.A. if
Citibank shall not then have an announced prime rate) as its prime rate (the
"PRIME RATE"). Requests for after hours service shall be submitted in writing
to the Building manager, by a person designated by Tenant as authorized to make
such requests, before 1:00 P.M. on a non-holiday weekday for such weekday and at
least thirty-six (36) hours prior to a holiday or weekend.
Owner shall furnish, if required and to the extent available (but in no
event to exceed one ton per year), condenser water for Tenant's supplemental
air-conditioning systems, at a cost of $630.00 per ton per year. If after the
date of this Lease, the cost to Owner of furnishing condenser water for such
air-conditioning system shall be increased, then the aforesaid cost to Tenant
shall be increased to fairly reflect the amount of the actual increase incurred
by Owner.
Tenant acknowledges that the base building HVAC system that will service
the demised premises has been designed to perform in accordance with the
specifications set forth on EXHIBIT "D" attached hereto.
45: ADDENDA to Rules and Regulations of printed form of Lease:
A. Because of requirements of Local Law 5 regarding certain fire safety
regulations, it is necessary that Owner know at all times the approximate number
of persons within the demised premises after normal business hours (i.e. after
6:00 P.M. on weekdays and on weekends and holidays). Accordingly, within thirty
(30) days after the date hereof, Tenant shall submit to owner its best estimate
of the number of Tenant's employees, agents, visitors and other persons which
Tenant expects to occupy the demised premises at any time after normal business
hours. Prior to 5:00 P.M. of each weekday or prior to 5:00 P.M. on the day
preceding a weekend or holiday, Tenant shall inform the building manager's
office whenever Tenant knows, or has reason to believe, that the number of its
employees, agents, visitors and other persons occupying the demised premises
after normal working or business hours that evening or the next day(s), as the
case may be, will exceed this estimate. Tenant also shall keep reasonable
records which indicate the number of persons entering and leaving the demised
premises after normal business hours, and shall provide copies of such records
to Owner at Owner's request.
B. At the expiration of the term of this Lease, if Owner shall not
require Tenant to remove any supplemental air-conditioning system which Tenant
has installed or utilized in its demised premises, Owner reserves the right to
require Tenant, at Tenant's own sole cost and expense, to (i) remove the
refrigerant from said supplemental air-conditioning system, in full compliance
with all applicable provisions of this Lease and with any and all applicable
laws, ordinances, orders, rules, and regulations relating to such removal and
(ii) promptly repair any and all damage caused by, or resulting from, such
removal.
46: A. Tenant or its legal representatives, will not by operation of law or
otherwise, assign (in whole or in part), mortgage or encumber this Lease, or
sublet or permit the demised premises or any part thereof to be used or occupied
by others,
-8-
<PAGE>
without Owner's prior written consent in each instance. The consent by Owner to
any assignment or subletting, whether by Tenant or by any other tenant in the
Building, shall not be waiver of or constitute a diminution of Owner's right to
withhold its consent to any other assignment or subletting and shall not be
construed to relieve Tenant from obtaining Owner's express written consent to
any other or further assignment or subletting. Such reasonable attorneys' fees
as may be incurred by Owner in connection with Tenant's request for consent to
an assignment or subletting shall be paid by Tenant.
B. If Tenant or its legal representatives desires to assign this Lease or
sublet all or any-portion of the demised premises, Tenant shall promptly notify
the then managing agent of the Building in writing of its desire to assign or
sublet. Upon obtaining a proposed assignee or subtenant upon acceptable terms,
Tenant shall submit to Owner in writing: (1) the name of the proposed assignee
or subtenant; (2) the terms of the proposed assignment or sublease; and (3) the
nature and character of the business which the proposed assignee or subtenant
will conduct in the demised premises, together with all financial data
concerning it; and thereafter Tenant shall submit to Owner any other information
concerning the assignment or sublease which Owner may request.
Owner shall have the option to be exercised within thirty (30) days from
the submission of the aforesaid information: (i) to cancel this Lease with
respect to the space to be sublet for the duration of the proposed sublease;
or (ii) to require the Tenant to execute and deliver an assignment or
sublease to Owner (or its designee) upon the same terms as submitted by
Tenant to Owner, except that Owner shall have the unrestricted right to
assign or sublet and/or alter the space. In the event of a proposed
assignment, or of a proposed sublease which, in the aggregate with all other
subleases, demises 50% or more of the demised premises, Owner shall have the
further option to be exercised within the said thirty (30) day period, to
cancel and terminate Tenant's Lease effective on the date of Tenant's
proposed assignment or sublease, in which event this Lease and the term
hereof shall expire and terminate on the date as if it was the date herein
fixed for the termination and expiration of the term of this Lease.
C. If Owner shall not exercise either of its foregoing options within the
time set forth above, its consent to the proposed assignment or subletting shall
not be unreasonably withheld; PROVIDED, HOWEVER, that, without limiting the
generality of the foregoing, in no event shall Owner be required to grant its
consent thereto if in the reasonable exercise of its judgment it determines
that:
1. The financial condition or general reputation for good character of
the proposed assignee or subtenant is insufficient or not consistent with the
obligations and responsibilities undertaken by the proposed assignment or
sublease; or
2. The proposed business to be conducted in the demised premises is not
appropriate for the Building or in keeping with the character of the existing
tenancies or permitted by this Lease, or the use is not expressly permitted by
this Lease; or
3. The nature of the occupancy of the proposed assignee or subtenant will
cause a greater density of employees or traffic or make greater demands on the
Building's services or facilities than that made by Tenant; or
4. Tenant has made assignments or sublettings, which have changed the
configuration of the demised premises; or
5. Tenant proposes to assign or sublet to one who at the time is a tenant
(or subsidiary or affiliate of a tenant) or a person in possession of premises
in the Building, or any of the
-9-
<PAGE>
buildings known as 205 East 42nd Street, 733 Third Avenue and 655 Third Avenue,
or to one with whom owner or a related entity is negotiating a lease or sublease
for space in the Building or any of said other buildings known as 205 East 42nd
Street, 733 Third Avenue and 655 Third Avenue; or
6. The assignee or subtenant shall have or enjoy diplomatic immunity; or
7. Such proposed subletting would result in the demised premises being
divided into more than two (2) rental units in the aggregate including Tenant's
premises; or
8. Tenant has advertised that its rental of the proposed space to be
assigned and/or sublet is less than the Fixed Rent plus escalations under
Articles 38 and 39 applicable to such space; or
9. Any combination of the foregoing conditions exists.
If this Lease shall be assigned or sublet in accordance with this Article,
such assignee or subtenant shall not be permitted to further assign or sublet in
whole or in part.
If this Lease shall be assigned, or it the demised premises or any part
thereof be sublet or occupied by any person or persons other than Tenant, Owners
may, after default by Tenant, collect rent from the assignee, subtenant or
occupant and apply the net amount collected to the rent herein reserved, but no
such assignment, subletting, occupancy or collection of rent shall be deemed a
waiver of the covenants in this Article, nor shall it be deemed acceptance of
the assignee, subtenant or occupant as a tenant or a release of Tenant from the
full performance by Tenant of all the terms, conditions and covenants of this
Lease.
Each permitted assignee or transferee shall assume and to deemed to have
assumed this Lease and shall be and remain liable jointly and severally with
Tenant for the payment of the rent and additional rent and for the due
performance of all the terms, covenants, conditions and agreement herein
contained on Tenant's part to be performed for the term of this Lease. No
assignment shall be effective unless Tenant shall promptly deliver to Owner a
duplicate original of the instrument of assignment, in form reasonably
satisfactory to Owner, containing a covenant of assumption by the assignee of
all of the obligations aforesaid and Tenant shall have obtained from Owner the
aforesaid written consent, prior thereto.
Notwithstanding any provision of this Lease to the contrary, 50% of any
rentals and/or consideration paid or payable by the subtenant or assignee in
excess of the rentals reserved and/or payable under this Lease shall be paid by
Tenant to Owner as and when received by Tenant, less expenses proven to have
been incurred by Tenant in assigning this Lease or subleasing its space. Such
expenses shall include, but not be limited to brokerage fees, attorneys' fees
and disbursements, advertising costs, reasonable concessions, including, without
limitation, free rent or work contributions, and the costs incurred in
connection with alterations, decorations and installations made by Tenant in the
space to be occupied.
47: If the demised premises become infested with vermin, Tenant, at its sole
cost and expense, shall cause the demised premises to be exterminated, from time
to time, to the satisfaction of Owner, and shall employ such exterminators
therefor as shall be approved by Owner.
48: Owner represents that according to the current definition of friable
asbestos, as that term is used by the Environmental Protection Agency of the
United States, there is no friable
-10-
<PAGE>
asbestos within the demised premises. If at any time during the term of this
Lease it becomes apparent that there is any friable asbestos in the demised
premises (other than any occasioned by Tenant) , Tenant shall promptly advise
Owner of the same in writing, in which case, as Tenant's sole right, remedy and
recourse, Owner shall, with reasonable diligence, remove such friable asbestos.
49: Tenant shall not cause or permit any Hazardous Materials (as defined below)
to be used, transported, stored, released, handled, produced or installed in, on
or from, the Demised Premises or the Building, except for such Hazardous
Materials (such as cleaning and photocopying fluids) that are customarily used
in the operation of offices, provided that such Hazardous Materials are used in
compliance with all laws and/or requirements of public authorities. The term
"Hazardous Materials" shall mean any flammable, explosive, or radioactive
materials, or hazardous wastes, hazardous and toxic substances, or related
materials, asbestos or any material, containing asbestos, or any other such
substance or material, as defined by any federal, state or local environmental
law, ordinance, rule or regulation including, without limitation, the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, the Hazardous Materials Transportation Act, as amended, the Resource
Conservation and Recovery Act, as amended, and in the regulations adopted and
publications promulgated pursuant to each of the foregoing. In the event of a
breach by Tenant of the provisions of this Article 49, Owner shall, in addition
to all of its rights and remedies under this Lease and pursuant to law, require
Tenant to remove any such Hazardous Materials from the demised premises or the
Building in the manner prescribed for such removal by all requirements of law.
The provisions of this Article 49 shall survive the expiration or sooner
termination of this Lease.
50: In the event of any conflict or inconsistency between the provisions of
this Rider and the provisions of the printed form of Lease to which the Rider is
annexed, the provisions of this Rider shall govern and control.
51: A. Tenant shall not violate, or permit the violation of, any condition
imposed by the standard fire insurance policy then issued for office buildings
in the Borough of Manhattan, City of New York, and shall not do, permit anything
to be done, keep, or permit anything to be kept, in the demised premises that
would: (i) subject Owner to any liability or responsibility for personal injury,
death, or property damage; (ii) increase the fire or other casualty insurance
rate on the building or the property therein over the rate that would otherwise
then be in effect (unless Tenant pays the resulting premium as provided in
Section F of this Article 51); or (iii) result in insurance companies of good
standing refusing to insure the building or any of such property in amounts
reasonably satisfactory to Owner.
B. Tenant covenants to provide on or before the Commencement Date, and to keep
in force during the term hereof, the following insurance coverage:
(i) for the benefit of Owner and Tenant, a comprehensive policy of
liability insurance protecting Owner and Tenant against any liability
whatsoever occasioned by accident on or about the demised premises or any
appurtenances thereto. Such policy is to be written by good and solvent
insurance companies authorized to do business in the State of New York, and
the limits of liability thereunder shall not be less than the respective
amounts of Three Million ($3,000,000.00) Dollars of combined single limit
coverage on a per occurrence basis and Three Hundred Thousand ($300,000.00)
Dollars in respect of property damage. Such insurance may be carried under
a
-11-
<PAGE>
blanket policy or policies covering the demised premises and other
locations of Tenant, if any; and
(ii) fire and extended coverage in an amount adequate to cover the cost of
replacement of all personal property, fixtures, furnishing and equipment,
including Tenant's Work, located in the demised premises. Such policy
shall be written by good and solvent insurance companies authorized to do
business in the State of New York.
Prior to the time that such insurance is first required to be carried by
Tenant, and thereafter, at least thirty (30) days prior to the expiration of any
such policies, Tenant agrees to deliver to Owner either duplicate originals of
the aforesaid policies or certificates evidencing such insurance, provided that
said certificate contains an endorsement that such insurance may not be amended
or otherwise modified or canceled except upon thirty (30) days' prior written
notice to Owner, together with evidence of payment for the policy. Attached
hereto as EXHIBIT "E" is a sample insurance certificate showing the lower
right-hand "Cancellation" section requirements which must be fulfilled to
conform the certificate to the provisions of this Section. Tenant's failure to
provide and keep in force the aforementioned insurance shall be regarded as a
material default hereunder, entitling Owner to exercise any or all of the
remedies as provided in this Lease in the event of Tenant's default.
C. Owner and Tenant shall each endeavor to secure an appropriate clause
in, or an endorsement upon, each fire or extended coverage policy obtained by it
and covering the building, the demised premises, or the personal property,
fixtures and equipment located therein or thereon, pursuant to which the
respective insurance companies waive subrogation or permit the insured, prior to
any loss, to agree with a third party to waive any claim it might have against
said third party. The waiver of subrogation or permission for waiver of any
claim hereinbefore referred to shall extend to the agents of each party and its
employees and, in the case of Tenant, shall also extend to all other persons
and entities occupying or using the demised premises in accordance with the
terms of this Lease. If. and to the extent that, such waiver or permission can
be obtained only upon payment of an additional charge, then, except as provided
in Sections D and E of this Article 51, the party benefiting from the waiver or
permission shall pay such charge upon demand, or shall be deemed to have agreed
that the party obtaining the insurance coverage in question shall be free of any
further obligations under the provisions hereof relating to such waiver or
permission.
D. In the event that Tenant shall be unable at any time to obtain one of
the provisions referred to in Section C above in any of its insurance policies,
Tenant shall cause Landlord to be named in such policy or policies as one of the
assureds, but if any additional premium shall be imposed for the inclusion of
Owner as such an assured, Owner shall pay such additional premium upon demand or
Tenant shall be excused from its obligations under Section C with respect to the
insurance policy or policies for which such additional premiums would be
imposed. In the event that Owner shall have been named as one of the assureds
in any of Tenant's policies in accordance with the foregoing, Owner shall
endorse promptly to the order of Tenant, without recourse, any check, draft, or
order for the payment of money representing the proceeds of any such policy, or
any other payment growing out of or connected with said policy, and Owner hereby
irrevocably waives any and all rights in and to such proceeds and payments.
E. In the event that owner shall be unable at any time to obtain one of
the provisions referred to in Section C above in any of its insurance policies,
Owner shall, at Tenant's option, cause Tenant to be named in such policy or
policies as one of the assureds, but if any additional premium shall be imposed
for the inclusion of Tenant as such an assured, Tenant shall pay such additional
premium upon demand. In the event that Tenant shall
-12-
<PAGE>
have been named as one of the assureds in any of Owner's policies in accordance
with the foregoing, Tenant shall endorse promptly to the order of Owner, without
recourse, any check, draft, or order for the payment of money representing the
proceeds of any such policy, or any other payment growing out of or connected
with said policy, and Tenant hereby irrevocably waives any and all rights in and
to such proceeds and payments.
F. Subject to the provisions of Sections C. D and E above, and insofar as
may be permitted by the terms of the insurance policies carried by it, each
party hereby releases the other with respect to any claim (including a claim for
negligence) that it might otherwise have against the other party for loss,
damages, or destruction with respect to its property by fire or other casualty
(including rental value or business interruption, as the case may be) occurring
during the term of this lease.
G. If, by reason of a failure of Tenant to comply with the provisions of
Section A, of this Article 51, the rate of fire insurance with extended
coverage on the building or equipment or other property of Owner shall be higher
than it otherwise would be, Tenant shall reimburse Owner, on demand, for that
part of the premiums for fire insurance and extended coverage paid by Owner
because of such failure on the part of Tenant.
H. If any dispute shall arise between Owner and Tenant with respect to
the incurrence or amount of any additional insurance premium referred to in
Section F above, the dispute shall be determined by arbitration.
I. A schedule or make-up of rates for the building or the demised
premises, as the case may be, issued by the New York Fire Insurance Rating
Organization or other similar body making rates for fire insurance and extended
coverage for the premises concerned, shall be conclusive evidence of the facts
therein stated and of the several items and charges in the fire insurance rate
with extended coverage then applicable to such premises.
52: A. Tenant hereby acknowledges and agrees that: (i) this Lease is expressly
subordinate to all of the following: (a) that certain Mortgage (the "Morgan
Mortgage Document") and that certain Consolidation, Modification, Spreader and
Extension Agreement (the "Spreader Agreement"), both dated as of January 18,
1994, by and among 205 Associates, L.P., The Durst Buildings Corporation, Durst.
Partners, 675 Associates, and David Durst, Richard Siegler, Douglas Durst,
Jonathan Durst and Seymour B. Durst, as trustees, collectively as mortgagors,
and Morgan Guaranty Trust Company of New York, as Trustee under Declaration of
Trust dated December 9, 1960 as Amended for the Commingled Pension Trust Fund
(Fixed Income - Mortgages) ("Morgan"), as mortgagee; (b) that certain Mortgage
(the "BNY Mortgage Document") and that certain Agreement of Consolidation and
Modification of Mortgage, Assignment of Leases and Rents and Security Agreement
(the "Consolidation Agreement"; the Morgan Mortgage Document; the Spreader
Agreement, the BNY Mortgage Document and the Consolidation Agreement are
sometimes collectively referred to herein as the "Mortgages"), both dated as of
February 3. 1997, by and among 205 Associates L.P., The Durst Buildings
Corporation, 675 Associates L.L.C., David Durst, Richard Siegler, Douglas Durst,
Jonathan Durst, Shirley Durst and Carola Durst, as trustees, Sendur Partners
L.L.C. and Durst Partners L.L.C., collectively as mortgagors (together with
mortgagors under the Spreader Agreement, "Mortgagors") and The Bank of New
York, as mortgagee (together with Morgan, "Mortgagees"); and (C) all amendments,
extensions, consolidations, modifications or replacements thereof; (ii) in the
event of a default under this Lease by Owner, Tenant shall promptly notify
Mortgagees in writing of such default and Mortgagees shall have the opportunity
(but not the obligation) to cure such default; and (iii) Tenant shall furnish to
Mortgagors and Mortgagees a certificate, within ten (10) days after the making
of a request therefor by Mortgagors or either of the Mortgagees, setting forth
(a) whether this Lease is in full
-13-
<PAGE>
force and effect; (b) stating whether or not any default or event which, with
notice or passage of time or both, would constitute a default, has occurred; (c)
listing all amendments, modifications, assignments or extensions of lease; and
(d) containing such other information as may be reasonably requested by such
Mortgagee; such certificates shall be furnished at Tenant's expense.
B. In addition to the foregoing and notwithstanding anything to the
contrary which may be contained in this Lease, Tenant agrees that in the event
of the enforcement by any Mortgagee of the remedies provided for by law or by
the Mortgages, Tenant will, on request of any person succeeding to the interest
of Mortgagors as a result of such enforcement, automatically attorn to said
successor in interest without change to this Lease, provided that any persons
succeeding to the interest of Mortgagors as a result of such enforcement shall
not be (w) bound by any payment of rent or additional rent for more than one (1)
month or regular billing period in advance; (x) bound by any alteration,
amendment, modification or amendment to this Lease which has not been consented
to by such Mortgagee; (y) liable for any act or omission of any prior lessor; or
(z) subject to any offset or defenses which Tenant may have against any prior
lessor.
Upon request by such successor in interest to Mortgagors, Tenant shall
execute and deliver an instrument confirming such attornment.
53: Owner shall in no event be subject to any claim for damages occasioned by
any default by Owner of any obligation to be performed by Owner under this Lease
so long as Owner, with due diligence after the receipt of written notice of such
default from Tenant, remedies such default as soon as practicable. With respect
to any provision of this Lease which specifically requires that Owner shall not
unreasonably withhold or delay its consent or approval, Tenant in no event shall
be entitled to make, nor shall Tenant make, any claim, and Tenant hereby waives
any claim, for any sum of money whatsoever as damages, costs, expenses,
attorneys' fees or disbursements, whether affirmatively or by way of setoff,
counterclaim or defense, based upon any claim or assertion by Tenant that Owner
has unreasonably withheld or delayed such consent or approval hereof, Tenant's
sole remedy for the claimed unreasonable withholding or delaying by Owner of its
consent or approval shall be an action or proceeding brought and prosecuted
solely at Tenant's own cost and expense to enforce such provision, for specific
performance, injunction or declaratory judgment.
54: A. No recourse shall be had on any of Owner's obligations under this
Lease or for any claim based thereon or otherwise in respect thereof against,
any incorporator of Owner, subscriber to Owner's capital stock, shareholder,
employee, agent, officer or director, past, present or future, of any
corporation or any partner or joint venturer of any partnership or joint venture
which shall be Owner hereunder or included in the term "Owner" or of any
successor of any such corporation, or against any principal, disclosed or
undisclosed, or any such corporation, or against any principal, disclosed or
undisclosed, of any affiliate of any party which shall be Owner or included in
the term "Owner," whether directly or through Owner or through any receiver,
assignee, agent, trustee in bankruptcy or through any other person, firm or
corporation, whether by virtue of any constitution, statute or rule of law or by
enforcement of any assessment or penalty or otherwise, all such liability being
expressly waived and released by Tenant.
B. Tenant shall look only and solely to Owner's estate and interest in
and to the Building and the rents and profits therefrom for the satisfaction of
any right of Tenant arising out of this Lease or for the collection of judgment
or other judicial process or arbitration award requiring the payment of money by
Owner, and no other property or assets of Owner, Owner's agents, incorporators,
shareholders, employees, officers, directors,
-14-
<PAGE>
partners, agents, principal (disclosed or undisclosed, joint venturers, or
affiliates shall be subject to levy, lien, execution, attachment, or other
enforcement procedure for the satisfaction of Tenant's rights and remedies under
or with respect to this Lease, the relationship of owner and Tenant hereunder or
under law, or Tenant's use and occupancy of the demised premises or any other
liability of Owner to Tenant.
55: Without limiting any of the foregoing provisions of this Article, if
pursuant to the Bankruptcy Code, as the same may be amended, Tenant is permitted
to assign or otherwise transfer this Lease (whether in whole or in part in
disregard of the restrictions contained in Article 46 and/or Article 16),
Tenant agrees that adequate assurance of future performance by the assignee or
transferee permitted under such Code shall mean the deposit of cash security
with Owner in an amount equal to the sum of one year's Fixed Rent then reserved
hereunder plus an amount equal to all additional rent payable by Tenant pursuant
to this Lease for the calendar year preceding the year in which such assignment
is intended to become effective, which deposit shall be held by Owner, without
interest, for the balance of the term as a security for the full and faithful
performance of all of the obligations under this Lease on the part of Tenant yet
to be performed. If Tenant receives or is to receive any valuable consideration
for such an assignment or transfer (in part or in whole) of this Lease, such
considerations, after deducting therefrom any portion of such consideration
reasonably designated by the assignee or transferee as paid for the purchase of
Tenant's personal property in the demised premises, shall be and become the sole
exclusive property of Owner and shall be paid over to Owner directly by such
assignee or transferee. Any such assignee or transferee may only use the
demised premises as executive offices for an assignee or transferee whose main
business is the same as Tenant's and such occupancy may not increase the number
of individuals occupying the demised premises at the time a petition for
bankruptcy (or reorganization) is filed by or against Tenant. In addition,
adequate assurance shall mean that any such assignee or transferee of this Lease
shall have a net worth (exclusive of good will) equal to at least fifteen (15)
times the aggregate of the annual Fixed Rent reserved hereunder plus all
additional rent for the preceding calendar year as aforesaid. Such assignee or
transferee shall expressly assume this Lease by an agreement in recordable form.
56: ADDENDA to Article 3 of the printed form of Lease:
Notwithstanding anything contained herein to the contrary, in the event
that Tenant makes, or causes, permits or authorizes to be made, any alterations,
modifications or decorations to the demised premises which in any manner affect
the existing or proposed Building standard security system, Tenant agrees that
concurrently with the making of any such alterations, modifications or
decorations, Tenant shall, at Tenant's sole cost and expense, modify such
existing or proposed system, or add any additional security devices to such
existing or proposed system, which nay be required in Owner's sole judgment.
In making any alterations, installations, additions or improvements to the
demised premises, Tenant must comply with the Building Rules and Regulations For
Tenant Alterations attached hereto as EXHIBIT "F".
57: Tenant acknowledges its understanding that Owner under this lease is the
Tenant under a ground lease dated April 30, 1964, affecting the property of
which the premises demised hereby form a part. Tenant agrees that
notwithstanding any cancellation or other termination of the ground lease this
lease shall remain in full force and effect and Tenant shall forthwith attorn to
the party or parties who may succeed to the interest of Owner under this Lease.
-15-
<PAGE>
58: Tenant and its employees, contractors, agents and invitees shall comply
with the Rules and Regulations in effect, from time to time, with regard to the
Building's security system. The current Rules and Regulation with regard
thereto are the following:
During the hours of 8 a.m. to 6 p.m. Monday through Friday ("NORMAL
BUSINESS HOURS") only persons displaying Kastle Systems "key tag"
identification ("KEYTAG") to the lobby attendant shall be granted access to
the Building. Landlord will provide a reasonable number of Keytags to
Tenant at no charge when Tenant takes possession of the demised premises.
Thereafter, Landlord will charge a rate to be specified by Owner for any
additional Keytags requested by Tenant. During Normal Business Hours,
anyone not displaying the Keytag to the lobby attendant shall obtain access
to the Building only (i) if that person's arrival was pre-arranged with the
lobby attendant with a list of anticipated visitors, or (ii) if not on a
pre-arranged list, the person's arrival to the Building can be announced
via telephone and then approved by Tenant. After Normal Business Hours,
access to the Building shall only be obtained by Keytag holders swiping
their Keytag on the Keytag reader outside the Building's front doors or by
utilizing the telephone link to Kastle Systems personnel, who will in turn
call the Tenant's premises to attempt to gain Tenant's approval for access
of persons not holding a Keytag.
59: In the event that, at any time during the term of this Lease, Owner and
Tenant shall be engaged in litigation of any nature relating to this Lease,
Owner shall have the right, during the entire period of such litigation, to
enter the demised premises at any time, whether or not Tenant or its agent or
representatives is present, for the purpose of showing the same to prospective
tenants.
60: Notwithstanding anything to the contrary in the printed form of Lease,
Owner shall have access to the demised premises upon reasonable oral, written,
telephonic or other notice during the last twelve (12) months of the term of
this Lease for the purpose of showing the demised premises to prospective
tenants.
OWNER:
ROYAL REALTY CORP.,
Agent
By: /s/ Douglas Durst
-------------------------
Name: Douglas Durst
Title: President
TENANT:
NET GRAVITY, INC.
By: /s/ Stephen E. Recht
-------------------------
Name: Stephen E. Recht
Title: Vice President
Finance & Administration
Chief Financial Officer
-16-
<PAGE>
EXHIBIT A
FLOOR PLAN
(follows immediately)
<PAGE>
[FLOOR PLAN]
<PAGE>
EXHIBIT B
CLEANING SPECIFICATIONS
OFFICE CLEANING ON BUSINESS DAYS
1. Desk and table tops are dusted nightly.
2. All horizontal and vertical surfaces are dusted nightly.
3. All glass top desks and tables are damp wiped nightly.
4. All composition tile flooring is thoroughly dust mopped nightly with
treated cloth. All corners are cleaned.
5. Carpeted areas thoroughly vacuumed weekly; additionally, high traffic areas
of floor vacuumed nightly.
6. Ash trays are emptied and damp wiped nightly.
7. Low dusting of furniture is done nightly.
8. All waste baskets are emptied nightly.
9. Desk trays are dusted nightly.
10. Hi-dusting - quarterly.
11. Window cleaning, both interior and exterior - approximately four times
annually.
LAVATORIES - PUBLIC - NIGHTLY - Monday through Friday, inclusive (excluding
holidays as described in Lease).
1. Sweep and wash and scrub all lavatory flooring, using germicide in the
water.
2. Wash and polish all mirrors, powder shelves, brightwork, etc., including
flushometers, piping toilet seat hinges.
3. Wash both sides of all toilet seats.
4. Wash and disinfect all basins, bowls and urinals.
5. Dust all partitions, tile walls, dispensers and receptacles.
6. Empty and clean paper towel and sanitary disposal receptacles.
7. Remove wastepaper to designated area in the loading dock.
8. Fill toilet tissue holders.
LAVATORIES - PUBLIC - PERIOD CLEANING
1. Machine scrub flooring monthly.
2. Wash all partitions, tile walls and enamel surfaces once a month, using
proper disinfectant monthly.
3. Wash all metal ceiling once per annum.
4. Dust all lighting fixtures once a month.
5. Do all high dusting once a month.
<PAGE>
EXHIBIT B-1
PLAN WITH MODIFICATIONS
(follows immediately)
<PAGE>
[FLOOR PLAN]
<PAGE>
EXHIBIT C
BUILDING STANDARDS
(follows immediately)
<PAGE>
BUILDING STANDARDS
PARTITIONS
Constructed of 2 1/2 steel studs and a layer of 5/8" gypsum board on
each side. Partitions are insulated to several inches above hung ceiling and
one layer of gypsum board is carried above the hung ceiling to the slab above.
DOORS & BUCKS
Bucks are 16 gauge steel, welded, with flat trim. Doors are 3'-0",
flush, fire proof, solid core, birch veneer, paint grade.
HARDWARE
Doors are hung with one and one half pairs of ball bearing butts and are
fitted with door bumpers and Schlage D series Rhodes design, dull chrome finish,
latch or lock sets. Where locks are required they are set up in a master key
system.
ACOUSTIC HUNG CEILING
A mechanically suspended push up type ceiling with exposed splines and
24" x 24" mineral fissured tegular edge tile, Armstrong Travertone or equal.
FLOOR COVERING
Carpeting, floor tile or other, durable floor covering with vinyl base.
ELECTRIC
Lighting: 2' x 4', recessed fixtures, with 3 T-8 32 watt fluorescent
lamps with acrylic lenses and Magne-Tex 3 lamp electronic ballasts, Lightolier
Ventilume 1 or equal. Silent type wall switches, not less than one per room.
Power: 110 volt duplex electrical receptacles located in partitions
or columns or in prefabricated knockouts in peripheral air conditioning
enclosure with not more than 8 outlets, initially on each circuit.
1
<PAGE>
TELEPHONE
Telephone and signal wiring shall be run in conduit or must be teflon
coated and run in cable trays in hung ceiling with conduit stub-ups into hung
ceiling. Stub-ups must terminate in an approved box in partitions. A maximum
of 25 feet of cable may run in hung ceiling between stub-ups and cable trays.
All loose wiring shall be neatly bundled and secured to black iron or steel
structure. No wiring shall be secured to ductwork.
AIR CONDITIONING
The air conditioning system will be a variable air volume system which
will be designed to:
Maintain indoor drybulb temperature of 75 degrees F., plus or minus 3
degrees F., when the outdoor temperature is between 15 degrees F. and 65 degrees
F. during the heating season.
Maintain indoor drybulb temperature of 75 degrees F., plus or minus 3
degrees F., and approximately 50% relative humidity when outside conditions
are not more than 89 degrees F. drybulb and 75 degrees F. wetbulb, during the
cooling season.
The above noted performance standards are based upon the following
conditions of internal heat and moisture gain:
a) one person per 100 square feet
b) a maximum of 3.5 watts per square foot for lighting and power
combined.
c) the use of internal shading devices (venetian blinds)
Landlord shall not be required to meet the above standards if directed
otherwise at any time by any governmental authority having jurisdiction.
VENETIAN BLINDS
All windows shall have 1" wide tapeless venetian blinds. Blinds shall have
polyester yarn braided ladders and dacron lift cords. Tilting mechanism shall
be controlled by a tilt rod of corrosion resistant steel, aluminum or lucite.
Blinds shall be installed in the pockets provided at the window head and shall
be in a color selected by the Landlord.
2
<PAGE>
PAINTING
All surfaces normally painted shall be painted in colors selected by
Tenant. Wall covering may be used.
SPRINKLES
Sprinkler heads shall be the concealed type installed in accordance with
the codes, rules and regulations established by the governmental authorities
having jurisdiction. All sprinkler piping-shall be concealed above the hung
ceiling.
3
<PAGE>
EXHIBIT D
HVAC SPECIFICATIONS
(follows immediately)
<PAGE>
EXHIBIT E
INSURANCE CERTIFICATE
(follows immediately)
<PAGE>
<TABLE>
<CAPTION>
<S><C>
-----------------------------------------------------------------------------------------------------------------------------------
[LOGO] CERTIFICATE OF INSURANCE
-----------------------------------------------------------------------------------------------------------------------------------
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO
RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND
OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW
---------------------------------------------------------------------------------
COMPANIES AFFORDING COVERAGE
---------------------------------------------------------------------------------
COMPANY
A
-----------------------------------------------------------------------------------------------------------------------------------
INSURED COMPANY
B
---------------------------------------------------------------------------------
COMPANY
C
---------------------------------------------------------------------------------
COMPANY
D
---------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
COVERAGES
-----------------------------------------------------------------------------------------------------------------------------------
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY
PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH
THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE
TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
-----------------------------------------------------------------------------------------------------------------------------------
CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS
LTR. DATE (MM/DD/YY) DATE (MM/DD/YY)
-----------------------------------------------------------------------------------------------------------------------------------
A GENERAL LIABILITY
/X/ COMMERCIAL GENERAL LIABILITY GENERAL AGGREGATE $
/ / CLAIMS MADE /X/ OCCUR PRODUCTS - COMP/OF AOO $
/ / OWNER'S & CONTRACTOR'S PROT PERSONAL & ADV INJURY $
/X/ BROAD FORM VENDORS EACH OCCURRENCE $
------------------ FIRE DAMAGE (Any illegible) $
/ / M & D EXP (illegible) $
-----------------------------------------------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $
A /X/ ANY AUTO
/ / ALL OWNED AUTOS BODILY INJURY $
/ / SCHEDULED AUTOS (Per person) $
/X/ HIRED AUTOS BODILY INJURY $
/X/ NON-OWNED AUTOS (Per instance) $
/ / PROPERTY DAMAGE $
---------------
-----------------------------------------------------------------------------------------------------------------------------------
DAMAGE LIABILITY AUTO ONLY - EA ACCIDENT $
/ / ANY AUTO OTHER THAN AUTO ONLY:
/ / EACH ACCIDENT $
--------------- AGGREGATE $
-----------------------------------------------------------------------------------------------------------------------------------
EXCESS LIABILITY EACH OCCURRENCE $
/ / UMBRELLA FORM AGGREGATE $
/ / OTHER THAN UMBRELLA FORM $
-----------------------------------------------------------------------------------------------------------------------------------
WORKERS COMPENSATION AND /X/ STATUTORY LIMITS
A EMPLOYERS LIABILITY EACH ACCIDENT $
B THE PROPRIETOR/ /X/ INCL BEARER - POLICY LIMIT $
PARTNERS/EXECUTIVE / / EXCL BEARER - EACH EMPLOYEE $
OFFICERS ARE:
-----------------------------------------------------------------------------------------------------------------------------------
OTHER
-----------------------------------------------------------------------------------------------------------------------------------
[ILLEGIBLE]
-----------------------------------------------------------------------------------------------------------------------------------
CERTIFICATE HOLDER CANCELLATION
-----------------------------------------------------------------------------------------------------------------------------------
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED or amended BEFORE THE
EXPIRATION DATE THEREOF, THE [ILLEGIBLE] COMPANY WILL HAVE 30 DAYS WRITTEN NOTICE
TO THE CERTIFICATE HOLDER NAMED TO THE LEFT.
---------------------------------------------------------------------------------
AUTHORIZED REPRESENTATIVE
-----------------------------------------------------------------------------------------------------------------------------------
ACORD [ILLEGIBLE]
-----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT F
BUILDING RULES AND REGULATIONS FOR TENANT ALTERATIONS
(follows immediately)
<PAGE>
BUILDING RULES & REGULATIONS FOR TENANT ALTERATIONS
I. GENERAL
A. All alterations, decorations, installations, repairs, improvements
and/or replacements (which shall hereinafter be called
"Alteration(s)" and which are sometimes referred to as "Tenant's
Work" in the lease) in, to or about the Demised Premises shall be
performed in accordance with all applicable provisions of the Lease.
B. Landlord reserves the right to withhold its consent of any Alteration
due to Tenant's non-compliance with any of the regulations or
guidelines contained in this Exhibit or in the Lease.
C. Landlord's review and approval of Tenant's drawings is for conformance
with the Building Standards only and is not a review for compliance
with any law, ordinance, code or insurance requirement, nor a review
of the adequacy of Tenant's design. No such approval or comments shall
constitute a waiver of the obligation that the Alteration complies
with all laws, ordinances or codes.
D. Landlord's approval or disapproval of the Alteration shall in no event
change or modify any provisions of the Lease.
II. SUBMISSION OF DRAWINGS
A. Tenant shall submit for Landlord's review and written approval, prior
to the commencement of work, three (3) sets of Tenant's complete
architectural and complete engineering drawings including but not
limited to mechanical, electrical, plumbing, sprinkler and structural
drawings.
B. All drawings submitted for Landlord's review and approval must be
signed and sealed by Tenant's Registered Architect and/or Professional
Engineer, licensed to conduct business in the State of New York.
<PAGE>
C. Where the Alteration appears to affect the Building's systems and/or
structure, Landlord reserves the right to refer Tenant's drawings to
Landlord's consulting engineers for review. The cost for such review,
approval and/or inspection of Tenant's Alteration shall be at Tenant's
cost and expense.
III. DEPARTMENT OF BUILDINGS FILING REQUIREMENTS
A. Prior to the commencement of the Alteration, Tenant's architect or
other representative designated by Tenant, shall file all drawings
relative to Tenant's Alterations with the N.Y.C. Department of
Buildings and all other governmental agencies having jurisdiction.
B. Tenant shall pay the cost of all filing and permit fees necessary to
secure all required approvals and permits from the N.Y.C. Department
of Buildings and all other governmental agencies having jurisdiction.
C. No work shall commence without a permit issued by the N.Y.C.
Department of Buildings. Copies of all N.Y.C. Department of Buildings
approved applications, permits and drawings are to be submitted to
Landlord prior to the start of the Alteration.
D. All work shall comply with all rules, regulations, codes, laws and
ordinances of the city, state and federal governmental agencies having
jurisdiction, including without limitation, those relative to the
Americans With Disabilities Act.
E. Upon the completion of the Alteration, Tenant shall submit to Landlord
copies of all final sign-offs from the N.Y.C. Department of Buildings
and all other governmental agencies having jurisdiction.
IV. INSURANCE
A. Tenant's general contractor and sub-contractor shall submit to
Landlord, or its agent, as a condition of Landlord's consent to
Tenant's use of such general contractor or sub-contractor, and prior
to the start of the Alteration, the following insurance certificates
which shall be maintained at their own expense, until the completion
of the Alteration:
2
<PAGE>
1) Certificates of Workers', Compensation insurance and of New York
Disability Benefits insurance covering all persons to be employed
in connection with such Alteration, including all those to be
employed by all contractors and sub-contractors.
2) Certificate of Comprehensive General Liability insurance
including Bodily Injury, Property Damage, Personal Injury, Broad
Form Contractual liability and Completed Operations, with a
minimum limit of $3,000,000 combined single limit per occurrence
and $5,000,000 in the aggregate unless higher limits are
expressed in the lease. The required limits may be provided by a
single policy or by a combination of primary and umbrella/excess
policies. Certificates must name the Landlord, its Managing
Agent, and any other party at interest as additional insureds.
A list of these parties can be obtained at the Building Office.
Such certificates shall also evidence a hold harmless and
indemnity agreement on the part of the contractors and sub-
contractors in favor of the certificate holder.
3. Certificate of automobile liability insurance with a combined
single limit (Bodily Injury & Property Damage) of at least
$1,000,000.
4. At the Landlord's option, "Builders Risk" coverage on the
Alterations may be required in an amount satisfactory to the
Landlord.
B. Unless otherwise agreed to by the Landlord, all insurance coverage is
to be provided by insurance carriers licensed to do business in the
State of New York. Certificates must provide for at least thirty (30)
days prior written notice to the certificate holder, on an unequivocal
basis, in the event of cancellation, non-renewal or material change.
V. BUILDING SERVICES
A. Any shutdown of any mechanical system or electric service required by
Tenant shall be requested through the Building Office in writing, at
least 48 hours prior to the requested shutdown date. Shutdowns shall
be scheduled on non-business days or on business days between 7:00PM
and 6:00AM with all work completed during this time. Shutdowns shall
be performed by
3
<PAGE>
Landlord's personnel or designated contractors at Tenant's cost and
expense.
B. The use of the elevators for hoisting materials, equipment and the
removal of rubbish shall only be permitted during non-business hours
or on non-business days and shall be arranged and scheduled through
the Building Office. Tenant shall be required to pay an hourly charge
for overtime elevator use.
C. Landlord will not assume any responsibility for any disturbance to
Tenant or deficiency created in any mechanical system or electrical
service to the Demised Premises by reason of the Alteration.
VI. DEMOLITION AND CONSTRUCTION
A. Tenant shall submit to Landlord for Landlord's approval, a complete
list of Tenant's general contractor and sub-contractors, including
name, business address and phone number, proposed to perform work
within the Demised Premises.
B. Tenant shall use only materials and employ labor which will not result
in labor difficulty or interruption of Landlord's operation of the
Building.
C. All work and materials shall be equal to the Building Standards.
D. All demolition work and other such work which creates disturbance or
annoyance to the Building operations or other tenants in the building
(including but not limited to chopping, coring, welding, sawing, etc.)
is to be scheduled with the Building Office and performed before 8:00
AM or after 6:00 PM on business days.
E. During any such times that Tenant's Alteration or demolition to,
within or about the Demised Premises require that the fire protection
afforded by the Class "E" system be temporarily disabled, Tenant's
contractors, at Tenant's cost and expense, shall maintain a fire watch
which is required by the trade or governmental authorities having
jurisdiction. In addition to the above required fire watch, Landlord
will provide a fire watch, at Tenant's cost and expense, for all work
which is performed outside the Demised Premises.
4
<PAGE>
F. Tenant shall cause its general contractor and subcontractors to keep
the Demised Premises clean and orderly at all times. All public areas
such as elevator lobbies, corridors, toilet rooms, etc. and all
equipment and property belonging to the Building shall be protected
from damage during the course of construction. The cleaning of the
public area affected by the Alteration will be performed by Building
personnel at Tenant's expense.
G. Tenant's general contractor and/or sub-contractors shall:
1. Protect and seal off the elevator lobby doors to prevent dust and
dirt from entering the elevator shafts and equipment.
2. Protect the perimeter HVAC or heating units from dust and dirt.
3. Seal off all supply and return grills, diffusers and ducts to
prevent dust from entering the Building air conditioning and
ventilating system.
4. Protect all Class "E" fire alarm devices and wiring.
H. Tenant shall only use the services of Landlord's contracted fire alarm
service vendor or other contractor designated by Landlord to adjust,
test, alter, relocate, add to, or remove equipment connected to the
Building Class "E" system required by or resulting from the
Alteration, at Tenant's cost and expense.
I. Tenant shall only use the services of Landlord's contracted Building
Management System vendor or other contractor designated by Landlord to
adjust, test, alter, relocate, add to, or remove equipment connected
to the Building Management System, required by or resulting from the
Alteration, at Tenant's cost and expense.
VII. MISCELLANEOUS
A. Tenant is not Permitted to mount any equipment in the Building
Electric Closets, Telephone Closets or Mechanical Equipment Rooms
without prior written approval from Landlord.
5
<PAGE>
B. All unused wiring, conduit, equipment, piping, materials and/or
previously installed work which is no longer being utilized is to be
removed back to its source.
C. Tenant shall not install any outside louvers or modify the existing
exterior facade of the Building in any way without the prior written
approval of Landlord.
D. All locking devices must be keyed and mastered to the Building Keying
system.
E. Tenant shall be responsible for all Alterations which impact existing
Building systems and shall ensure that such work is integrated so as
not to adversely affect the Building systems.
F. Access doors must be provided to all Building and Tenant equipment.
All valves, piping and equipment are to be tagged and clearly
identified.
G. No outlets, switches or other devices are to be chopped into any core
wall.
H. All toilet rooms, pantries with dishwasher, supplemental mechanical
rooms and other such rooms requiring the use of water shall be
provided with floor drains and shall be membrane waterproofed over the
entire room with the membrane run up a minimum of 4" on all partitions
and columns.
6
<PAGE>
State of California
County of San Mateo
On 2/24/98 before me, CATHERINE M. BYRNE personally appeared STEPHEN E. RECHT
personally known to me - or -
--
X proved to me on the basis of satisfactory evidence to be the person(s) whose
-- name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity, and
that by his/her/their signature(s) on the instrument the person(s) or entity
upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal,
[SEAL]
/s/ Catherine M. Byrne
------------------------------
Catherine M. Byrne
NOTARY PUBLIC
<PAGE>
"WELCOME TO SERVCORP"
This Lease is made between the Landlord (1), the Tenant (2a)
and the Guarantor (2b) below.
--------------------------------------------------------------------------------
DATE
--------------------------------------------------------------------------------
1 SERVCORP OFFICE
--------------------------------------------------------------------------------
CITY: Shinjuku, Tokyo
--------------------------------------------------------------------------------
LANDLORD: Servcorp Japan K.K.
--------------------------------------------------------------------------------
ACN:
--------------------------------------------------------------------------------
ADDRESS: Level 11, Park West Building
--------------------------------------------------------------------------------
6-12-1 Nishi Shinjuku
--------------------------------------------------------------------------------
Shinjuku-ku, Tokyo
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
2a TENANT
--------------------------------------------------------------------------------
COMPANY NAME: Net Gravity
--------------------------------------------------------------------------------
ACN:
--------------------------------------------------------------------------------
ADDRESS: 1700 S. Amphlett Blvd. Suite 350
--------------------------------------------------------------------------------
San Mateo, CA 94402-2715
--------------------------------------------------------------------------------
USA
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
2b GUARANTOR
--------------------------------------------------------------------------------
NAME: STEPHEN E. RECHT, CFO
--------------------------------------------------------------------------------
RESIDENTIAL ADDRESS: 33 MONTICELLO AVE
--------------------------------------------------------------------------------
PIEDMONT, CA 94611 USA
--------------------------------------------------------------------------------
PASSPORT/DRIVERS LICENCE NO: 053707527
--------------------------------------------------------------------------------
DATE ISSUE/ISSUING STATE OR COUNTRY:
1/27/94 USA
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
3 BANK
--------------------------------------------------------------------------------
LANDLORD BANK:
Tokyo Mitsubishi Bank
Nishi Shinjuku Branch
--------------------------------------------------------------------------------
LANDLORD ACCOUNT NAME:
Servcorp Japan K.K.
--------------------------------------------------------------------------------
LANDLORD ACCOUNT NUMBER:
Saving 1102434
--------------------------------------------------------------------------------
TENANT BANK
--------------------------------------------------------------------------------
TENANT ACCOUNT NAME:
--------------------------------------------------------------------------------
TENANT ACCOUNT NUMBER:
--------------------------------------------------------------------------------
START DATE OF PERIODICAL PAYMENT: / /
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
4 TENANT'S HEAD OFFICE
--------------------------------------------------------------------------------
CONTACT NAME:
Jason A. Martin
--------------------------------------------------------------------------------
ADDRESS:
1700 S. Amphlett Blvd. Suite 350
--------------------------------------------------------------------------------
San Mateo, CA 94402-2715
--------------------------------------------------------------------------------
TELEPHONE NO:
650-655-2069
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5 INITIAL INVOICE DETAILS
--------------------------------------------------------------------------------
RENT FIRST MONTH: 420,000 - 1/2/98 TO 28/2/98
--------------------------------------------------------------------------------
SECURITY DEPOSIT: 420,000 - 1 month rental
--------------------------------------------------------------------------------
TELEPHONE CONNECTION:
13,500 -
--------------------------------------------------------------------------------
FACSIMILE CONNECTION: -
--------------------------------------------------------------------------------
PARKING: -
--------------------------------------------------------------------------------
DIRECTORY BOARD: -
--------------------------------------------------------------------------------
SUNDRIES: -
--------------------------------------------------------------------------------
Consumption Tax 21,675
--------------------------------------------------------------------------------
TOTAL AMOUNT DUE:
875,175
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6 FOR SERVCORP USE ONLY
--------------------------------------------------------------------------------
THE LANDLORD HEREBY LEASES THE PREMISES KNOWN AS
SUITE NUMBER 18
--------------------------------------------------------------------------------
TERM COMMENCEMENT DATE: 1/2/98
--------------------------------------------------------------------------------
INITIAL TERM ENDING DATE: (Refer to Holding Over Clause) 31/3/98
--------------------------------------------------------------------------------
TERM OF THE LEASE: 2 (moneys) OUTGOINGS: 2.5%
--------------------------------------------------------------------------------
RENT PER MONTH 420,000 1/2/98 TO 31/3/98
--------------------------------------------------------------------------------
RENT PER MONTH / / TO / /
--------------------------------------------------------------------------------
FIRST SCHEDULE - INCLUDED IN RENTAL
--------------------------------------------------------------------------------
EXECUTIVE DESKS: 3 EXECUTIVE CHAIRS: 1
VISITORS CHAIRS: 1 3 DRAWER FILING CABINET 1
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
7 COMMENTS
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
RENT [ILLEGIBLE]
--------------------------------------------------------------------------------
SERVICES [ILLEGIBLE]
--------------------------------------------------------------------------------
SECURITY DEPOSIT [ILLEGIBLE]
--------------------------------------------------------------------------------
HOLDING OVER [ILLEGIBLE]
--------------------------------------------------------------------------------
INSURANCE [ILLEGIBLE]
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
The Tenant and Guarantor confirm that the [ILLEGIBLE]
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
We [ILLEGIBLE]
--------------------------------------------------------------------------------
Signed for and on behalf of the Landlord
--------------------------------------------------------------------------------
Name (printed)
--------------------------------------------------------------------------------
Date
--------------------------------------------------------------------------------
Signature
--------------------------------------------------------------------------------
The Common Seal of
Servcorp Japan
was affixed to the
document in the
presence of:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Signed by Guarantor
/s/ Stephen E. Recht
--------------------------------------------------------------------------------
Name (printed)
STEPHEN E. RECHT
--------------------------------------------------------------------------------
Date: 1/28/98
--------------------------------------------------------------------------------
Signature
/s/ Stephen E. Recht
--------------------------------------------------------------------------------
In the presence of:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Signed for and on behalf of the Tenant
--------------------------------------------------------------------------------
Name (printed):
STEPHEN E. RECHT, CFO
--------------------------------------------------------------------------------
Date: 1/28/98
--------------------------------------------------------------------------------
Driver's License or Passport No.:
--------------------------------------------------------------------------------
Signature
/s/ Stephen E. Recht, CFO
--------------------------------------------------------------------------------
The Common Seal of
Net Gravity
was affixed to this document
in the presence of: