New York-New York-601 West 26th Street Lease - 601 West Associates LLC and ScreamingMedia.net Inc.
2/94
STANDARD FORM OF LOFT LEASE
The Real Estate Board of New York, Inc.
Agreement of Lease, made as of this ___________ day of ________________ 1999
between 601 WEST ASSOCIATES LLC, HAVING AN ADDRESS AT 601 WEST 26th STREET,
SUITE 900, NEW YORK, NEW YORK 10001, Party of the first part, hereinafter
referred to as OWNER, and SCREAMINGMEDIA.NET, INC, HAVING AN ADDRESS AT 601 WEST
26th STREET NEW YORK, NEW YORK 10001, party of the second part, hereinafter
referred to as TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from Owner THE
SPACE KNOWN AS NINTH FLOOR NORTHEAST AS SHOWN ON EXHIBIT A ATTACHED HERETO (THE
"PREMISES") in the building known as 601 WEST 26th STREET in the Borough of
MANHATTAN, City of New York, for the term of TEN (10) YEARS (or until such term
shall sooner and cease and expire as hereinafter provided) to commence on the
COMMENCEMENT DATE* and to end on the 31st day of MARCH, TWO THOUSAND NINE and
both dates inclusive, at an annual rental rate *(HEREINAFTER DEFINED)
SEE ARTICLE 43 OF THE RIDER ANNEXED HERETO AND MADE A PART HEREOF
which Tenant agrees to pay in lawful money of the United States which shall be
legal tender in payment of all debts and dues, public and private, at the time
of payment, in equal monthly installments in advance on the first day of each
month during said term, at the office of Owner or such other place as Owner may
designate, without any set off or deduction on whatsoever, except that Tenant
shall pay the first ____ monthly installment(s) on the execution hereof (unless
this lease be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
Rent: 1. Tenant shall pay the rent as above and as hereinafter provided.
Occupancy: 2. Tenant shall use and occupy demised premises for
provided such use in accordance with the certificate of occupancy for the
building, if any, and for no other purposes.
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. Subject to the prior written consent of Owner, and to the provisions of
this article, Tenant, at Tenant's expense, may make alterations, installations,
additions or improvements which are nonstructural and which do not affect
utility services or plumbing and electrical lines, in or to the interior of the
demised premises using contractors or mechanics first approved in each instance
by Owner. Tenant shall, at its expense, before making any alterations,
additions, installations or improvements, obtain all permits, approval and
certificates required by any governmental or quasi-governmental bodies and (upon
completion) certificates of final approval thereof
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and shall deliver promptly duplicates of all such permits, approvals and
certificates to Owner. 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 actual notice thereof at
Tenant's expense, by payment or filing the bond required by law or otherwise.
All fixtures (other than Tenant's trade 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 demised 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 removed form the premises by Owner, at
Tenant's expense.
Repairs: 4. Through the term of this Lease, Owner shall maintain and repair
the structural exterior of and the public portions of the building including,
without limitation, the roof, foundation, footings, exterior, walls,
load-bearing walls, columns, beams, structural floor slabs and all building
systems up to the connection point of the same of the demised premises. Tenant
shall, throughout the term of this lease, take good care of the demised premises
including the bathrooms and lavatory facilities (if the demised premises
encompass the entire floor of the building) and the windows and window frames
and, the fixtures and appurtenances therein and at Tenant's sole cost and
expense promptly make all repairs thereto and to the building, whether
structural or nonstructural in nature, caused by or resulting from the
carelessness, omission, neglect or improper conduct of Tenant, Tenant's
servants, employees, invitees, or licenses, and whether or not arising from such
Tenant conduct or omission, when required by other provisions of this lease,
including Article 6. Tenant shall also repair all damage to the building and the
demised premises caused by the moving of Tenant's fixtures, furniture or
equipment. All the aforesaid repairs shall be of quality or class equal to the
original work or construction. If Tenant fails, after ten days notice, to
proceed with due diligence to make repairs required to be made by Tenant, the
same may be made by the Owner at the expense of Tenant, and the expenses thereof
incurred by Owner shall be collectible, as additional rent, after rendition of
a bill or statement therefor. If the demised premises be or become infested with
vermin, Tenant shall, at its expense, cause the same to be exterminated. Tenant
shall give Owner prompt notice of any defective condition in any plumbing,
heating system or electrical lines located in the demised premises and following
such notice, Owner shall remedy the condition with due diligence, but at the
expense of Tenant, if repairs are necessitated by damage or injury attributable
to Tenant. Tenant's servants, agents, employees, invitees or licensees as
aforesaid. Except as specifically provided in Article 9 or elsewhere in this
lease, there shall be no allowance to the Tenant for a diminution of rental
value and no liability on the part of Owner by reason of inconvenience,
annoyance or injury to business
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arising from Owner, Tenant or others making or failing to make any repairs,
alterations, additions or improvements in or to any portion of the building or
the demised premises or in and to the fixtures, appurtenances or equipment
thereof. It is specifically agreed that Tenant shall not be entitled to any set
off 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 any action for
damages for breach of contract. The provisions of this Article 4 with respect to
the making of repairs shall not apply in the case of fire or other casualty with
regard to which Article 9 hereof shall apply.
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 New York State Labor Law or any other applicable law or of
the Rules of the Board of Standards and Appeals, or of any other Board or body
having or asserting jurisdiction.
Requirements of Law; Fire Insurance: 6. Prior to the commencement of the lease
term, if Tenant is then in possession, and at all times thereafter Tenant shall,
at Tenant's sole cost and expense, 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, or the 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, arising out of Tenant's use or manner of use
thereof, or, with respect to the building, if arising out of Tenant's use or
manner of use of the demised premises of the building (including the use
permitted under the lease). Except as provided in Article 30 hereof, 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 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. 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 and 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. If by reason or failure
to comply with the foregoing 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 and parties, a schedule. or "make-up" or rate for the building
or demised premises issued by a body making fire insurance rates applicable to
said premises shall be conclusive evidence of the facts therein stated and of
the several items and changes in the fire insurance rates then applicable to
said premises. Tenant shall not place a load upon any floor of the demised
premises exceeding the floor load per square foot area for 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 judgment, to absorb and prevent
unreasonable vibration, noise and annoyance.
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Subordination: 7. This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the real property of which demised premises are a part and to all
renewals, modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument or subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised promises are a part. In confirmation of such subordination,
Tenant shall from time to time, execute promptly any certificate that Owner may
reasonably request.
Tenant's Liability Insurance Property Loss, Damage, Indemnity: 8. Owner or its
agents shall not be liable for any damage to property of Tenant or of others
entrusted to employees of the building, nor for loss of or damage to any
property of Tenant by theft or otherwise, nor for 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 shall not be liable for any damage caused by other Tenants or persons in,
upon or about said building or caused by operations in connection of any
private, public or quasi public work. If at any time any windows of the demised
premises are temporarily closed, darkened or bricked up (or permanently closed,
darkened or bricked up, if required by law) for any reason whatsoever including,
but not limited to Owner's own acts, Owner shall not be liable for any damage
Tenant may sustain thereby and Tenant shall not be entitled to any compensation
therefor nor abatement or diminution of rent nor shall the same release Tenant
from its obligations hereunder nor constitute an eviction. Tenant shall
indemnify and save harmless Owner against and from all liabilities, obligations,
damages, penalties, claims, costs and expenses for which Owner shall not be
reimbursed by insurance, including reasonable attorney's fees, paid, suffered or
incurred as a result of any breach by Tenant, Tenant's agents, contractors,
employees, invitees, or licensees, of any covenant or condition of this lease,
or the carelessness, negligence or improper conduct of Tenant, Tenant's agents,
contractors, employees, invitees or licensees. Tenant's liability under this
lease extends to the acts and omissions of any sub-tenant, and any agent,
contractor, employee, invitee or licencee of any sub-tenant. In case any action
or proceeding is brought against Owner by reason of any such claim, Tenant, upon
written notice from Owner, will, at Tenant's expense, resist or defend such
action or proceeding by counsel approved by Owner in writing, such approval not
to be unreasonably withheld.
Destruction, Fire and Other Casualty: 9. (a) If the demised premises or any
part thereof shall be damaged by fire or other casualty, Tenant shall give
immediate notice thereof to Owner and this lease shall continue in full force
and effect except as hereinafter set forth. (b) If the demised premises are
partially damaged or rendered partially unusable by fire or other casualty, the
damages thereto shall be repaired by and at the expense of 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 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
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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 Owner's rights and remedies
against Tenant under the lease provisions in effect prior to such termination,
and any rent owing shall be paid up to such date and any payments of rent made
by Tenant which were on account of any period subsequent to such date shall be
returned to Tenant. Unless Owner shall serve a termination notice as provided
for herein, Owner shall make the repairs and restorations under the conditions
of (b) and (c) hereof, with all reasonable expedition, subject to delays due to
adjustment of insurance claims, labor troubles and causes beyond Owner's
control. After any such casualty, Tenant shall cooperate with Owner's
restoration by removing from the premises as promptly as reasonably possible,
all of Tenant's salvageable inventory and movable 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 herein above shall relieve Tenant from
liability that may exist as a result or 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 a release or waiver shall not invalidate the insurance. If, and to the
extent, that such waiver can be obtained only by the payment of additional
premiums, then the party benefitting from the wavier 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 wavier 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. Notwithstanding the foregoing or anything to the
contrary contained herein, Tenant shall have the right to terminate this lease
upon ten (10) days' written notice to Landlord, if (i) twenty percent (20%) or
more of the demised premises shall be damaged by fire or casualty and if such
damage or destruction shall occur during the last two (2) years of the term of
this lease or any renewal term, or (ii) such damage or destruction is reasonably
estimated to take in excess of one hundred eighty (180) days to complete.
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 the title vesting in such proceeding and Tenant shall
have no claim for the value of any unexpired term of said lease. 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.
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Assignment, Mortgage, Etc.: 11. Tenant, for itself, its heirs, distributees,
executors, administrators, legal representatives, successors and assigns,
expressly covenants that it shall not assign, mortgage or encumber this
agreement, nor underlet, or suffer or permit the demised premises or any part
thereof to be used by others, without the prior written consent of Owner in each
instance, Transfer of the majority of the stock of a corporate Tenant or the
majority partnership interest of a partnership Tenant shall be deemed an
assignment. If this lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than Tenant, Owner may, after
default by Tenant, collect rent from the assignee, under-tenant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, under-tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve
Tenant from obtaining the express consent in writing of Owner to any further
assignment or underletting.
Electric Current: 12. Rates and conditions in respect to submetering or rent
inclusion, as the case may be, to be added in RIDER attached hereto. Tenant
covenants and agrees that at all times its use of electric current shall not
exceed the capacity of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical current 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, upon prior notice to Tenant, to examine the same
and to make such repairs, replacements and improvements as Owner may deem
necessary and reasonably desirable to any portion of the building or which Owner
may elect to perform in the premises after Tenant's failure to make repairs or
perform any work which Tenant is obligated to perform under this lease, or for
the purpose of complying with laws, regulations and other directions of
governmental authorities. Tenant shall permit Owner to use and maintain and
replace pipes and conduits in and through the demised premises and to erect new
pipes therein provided, wherever possible, they are within walls or otherwise
concealed. 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. Landlord shall exercise reasonable
efforts to minimize any inconvenience to Tenant or interference with Tenant's
use and enjoyment of the Demised Premises and its business operations in
connection with any repairs or other work, repairs, replacements and/or
improvements performed by Landlord under the Lease, or in connection with any
rights of access permitted to Landlord under the Lease, and Landlord shall carry
out such repairs, replacements, improvements or other work promptly and
diligently. Landlord acknowledges that such repairs, work or other access may be
intrusive to Tenant's patrons, and agrees, with respect to work within the
Premises, except in case of emergency, to (i) consult with Tenant, and (ii) make
reasonable efforts to schedule any such repairs, work or other access in such
manner, at such times, and in such locations as to create the least practicable
interference with Tenant's business operations. Throughout the term hereof,
Owner shall have the right to enter the demised premises at reasonable hours for
the purpose of showing the same to prospective
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purchasers or mortgagees of the building, and during the last six months of the
term for the purpose of showing the same to prospective tenants and may, during
said six months period, place upon the demised premises the usual notices "To
Let" and "For Sale" which notices Tenant shall permit to remain thereon without
molestation. If Tenant is not present to open and permit an entry into the
demised premises, Owner or Owner's agents may enter the same in the event of an
emergency 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 arid
such act shall have no effect on this lease or Tenant's obligation hereunder.
Vault, Vault Space, Area: 14. No Vaults, vault space or area, whether or not
enclosed or covered, not within the property line of the building is leased
hereunder anything contained in or indicated on any sketch, blue print or plan,
of 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, if used by
Tenant, whether or not specifically stated hereunder.
Occupancy: 15. Tenant will not at any time use or occupy the demised premises
in violation of the certificate of occupancy issued for the building of which
the demised premises are a part. Tenant has inspected the premises and accepts
them as is, subject to the riders annexed hereto with respect to Owner's work,
if any. In any event, Owner makes no representation as to the condition of the
premises and Tenant agrees to accept the same subject to violations, whether or
not of record. If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business, Tenant shall be responsible for
and shall procure and maintain such license or permit.
Bankruptcy: 16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by 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
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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 rental 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 relet 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 reletting shall be deemed to be the fair and reasonable rental value for
the part or the whole of the premises so relet during the term of the
reletting. 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 the payment of rent or additional rent; or if the
demised premises becomes vacant or deserted "or if this lease be rejected under
Section 235 of Title 11 of the U.S. Code (bankruptcy code);" 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 Tenant shall make default with respect to any other lease between
Owner and Tenant; or if Tenant shall have failed, after five (5) days written
notice, to redeposit with Owner any portion of the security deposited hereunder
which Owner has applied to the payment of any rent and additional rent due and
payable hereunder or failed to move into or take possession of the premises
within thirty (30) days after the Commencement Date of which fact Owner shall be
the sole judge; 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 during such default within such fifteen (15) day period,
and shall not thereafter with reasonable diligence and in good faith, proceed to
remedy or cure such default, then Owner may serve a written five (5) days'
notice of cancellation of this lease upon Tenant, and upon the expiration of
said five (5) days this lease and the term thereunder shall end and expire as
fully and completely as if the expiration of such five (5) day period were the
day herein definitely fixed for the end and expiration of this lease and the
term thereof and Tenant shall then quit and surrender the demised premises to
Owner but Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and the term
shall expire as aforesaid, or if Tenant shall make default in the payment of the
rent reserved herein of any item of additional rent herein mentioned or any part
of either or in making any other payment herein required; then in any of such
events Owner may without notice, re-enter the demised premises either by force
or otherwise, and dispossess
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Tenant by summary proceedings or otherwise, and the legal representative of
Tenant or other occupant of demised premises and remove their effects and hold
the premises as if this lease had not been made, and Tenant hereby waives the
service of notice of intention to re-enter or to institute legal proceedings to
that end. If tenant shall make default hereunder prior to the date fixed as the
commencement of any renewal or extension of this lease, Owner may cancel and
terminate such renewal or extension agreement by written notice.
Remedies of Owner and Waiver of Redemption: 18. In case of any such default,
re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a)
the rent, and additional rent, shall become due thereupon, and be paid up to the
time of such re-entry, dispossess and/or expiration, (b) Owner may relet 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 rent than that
in this lease, (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 subsequent lease or leases of the demised premises
for each month of the period which would otherwise have constituted the balance
of the term of the lease. The failure of Owner to relet the premises or any part
or part 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 reletting, such as legal
expenses, reasonable attorneys' fees, brokerage, advertising and for keeping the
demised premises in good order or for preparing the same, for reletting. 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 judgment,
considers advisable and necessary for the purpose of reletting 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 foresaid. Owner shall in no event be liable in any way whatsoever
for failure to re1et the demised premises, or in the event that the demised
premises are relet for failure to collect the rent thereof under such
reletting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Owner shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were nor 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.
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
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payment of money, including but not limited to reasonable attorney's fees, in
instituting, prosecuting or defending any action or proceedings, and prevails in
any such action or proceeding, then Tenant will reimburse Owner for such claims
so paid or obligations incurred with interest and costs. The foregoing expenses
incurred by reason of Tenant's default shall be deemed to be additional rent
hereunder and shall be paid by Tenant to Owner within ten (10) days of rendition
of any bill or statement to Tenant therefor. If Tenant's lease term shall have
expired at the time of making of such expenditures or incurring of such
obligations, such sums shall be recoverable by Owner as damages.
Building Alterations and Management: 20. Owner shall have the right at any time
without the same constituting an eviction and without incurring liability to
Tenant therefor to change the arrangement and/or location of public entrances,
passageways, doors, doorways, corridors, elevators, stairs, toilets or other
public parts of the building and to change the name, number or designation by
which the building may be known. There shall be no allowance to Tenant for
diminution of rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to business arising from Owner or other
Tenant 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 any controls of the manner of access to the
building by Tenant's social or business visitors as the Owner may deem necessary
for the security of the building and its occupants.
No Representations by Owner: 21. Neither Owner nor Owner's agents have made any
representations or promises with respect to the physical condition of the
building, the land upon which it is erected or the demised premises, the rents,
leases, expenses of operation or any other matter or thing affecting or related
to the demised premises or the building 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" on the date possession
is tendered and acknowledges that this 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
agreement between Owner and Tenant and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
End of Term: 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 from the demised premises. 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
proceeding
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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 34 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
Failure to Give Possession: 24. If Owner is unable to give possession of the
demised premises on date of the Commencement Date because of the fact that a
certificate of occupancy has not been procured or if Owner has not completed any
work required to be performed by Owner, Owner shall not be subject to any
liability for failure to give possession on said date and the validity of the
lease shall not be impaired under such circumstances, nor shall the same be
construed in any wise to extend the term of this lease, but the rent payable
hereunder shall be abated (provided Tenant is not responsible for Owner's
inability to obtain possession or complete any work required) until after Owner
shall have given Tenant notice that Owner is able to deliver possession in the
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
page one of this lease. The provisions of this article are intended to
constitute "an express provision to the contrary" within the meaning of Section
223-a of the New York Real Property Law.
No Waiver: 25. The failure of Owner to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this lease or
of any of the Rules or Regulations, set forth or hereafter adopted by Owner,
shall not prevent a subsequent act which would have originally constituted a
violation from having all the force and effect of an original violation. The
receipt by Owner of rent with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach and no provision of this lease
shall be deemed to have been waived by Owner unless such waiver be in writing
signed by Owner. No payment by Tenant or receipt by Owner of a lesser amount
than the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
of any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Owner may accept such check or payment without
prejudice to Owner's right to recover the balance of such rent or pursue any
other remedy in this lease provided. All checks tendered to Owner as and for the
rent of the demised premises shall be deemed payments for the account of Tenant.
Acceptance by Owner of rent from anyone other than Tenant shall not be deemed to
operate as an allotment to Owner by the payor of such rent or as a consent by
Owner to an assignment or subletting by Tenant of the demised premises to such
payor, or as a modification of the provisions of this lease. 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
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Owner's agent shall have any power to accept the keys of said premises prior to
the termination of the lease and the delivery of keys to any such agent or
employee shall not operate as a termination of the lease or a surrender of the
premises.
Waiver of Trial by Jury: 26. It is mutually agreed by and between Owner and
Tenant that the respective parties hereto shall and they hereby do waive trial
by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal injury or property damage)
on any matters whatsoever arising out of or in any way connected with this
lease, the relationship of Owner and Tenant, Tenant's use of or occupancy of
said premises, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Owner commences any proceeding or
action for possession including a summary proceeding for possession of the
premises, Tenant will not interpose any counterclaim of whatever nature or
description in any such proceeding including a counterclaim under Article 4
except for statutory mandatory counterclaims.
Inability to Perform: 27. This lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in no wise be affected, impaired or excused
because Owner is unable to fulfill any of its obligations under this lease or to
supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make, or is delayed in making any repair, additions,
alterations or decorations or is unable to supply or is delayed in supplying any
equipment, fixtures or other materials if Owner is prevented or delayed from
doing so by reason of strike or labor troubles or any cause whatsoever beyond
Owner's sole control including, but not limited to, government preemption or
restrictions or by reason of any rule, order or regulation of any department or
subdivision thereof or any government agency or by reason of the conditions
which have been or are affected, either directly or indirectly, by war or other
emergency.
Bills and Notices: 28. Except as otherwise in this lease provided, a bill
statement, notice or communication which Owner may desire or be required to give
to Tenant, shall be deemed sufficiently given or rendered if, in writing,
delivered to Tenant personally or sent by registered or certified mail addressed
to Tenant in accordance with Article 63 of the Rider and the time of the
rendition of such bill or statement and of the giving of such notice or
communication shall be deemed to be the time when the same is delivered to
Tenant, mailed, or left at the premises as herein provided. Any notice by Tenant
to Owner must be served by registered or certified mail addressed to Owner in
accordance with Article 63 of the Rider or at such other address as Owner shall
designate by written notice.
Sprinklers: 30. Anything elsewhere in this lease to the contrary
notwithstanding, if the New York Board of Fire Underwriters or the New York Fire
Insurance Exchange or any bureau, department or official of the federal, state
or city government recommend or require the installation of a sprinkler system
or that any changes, modifications, alterations, or additional sprinkler heads
or other equipment be made or supplied in an existing sprinkler system by reason
of Tenant's business, or the location of partitions, trade
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fixtures, or other contents of the demised premises, or for any other reason, or
if any such sprinkler system installations, modifications, alterations,
additional sprinkler heads or other such equipment, become necessary to prevent
the imposition of a penalty or charge against the full allowance for a sprinkler
system in the fire insurance rate set by any said Exchange or by any fire
insurance company, Tenant shall, at Tenant's expense promptly make such
sprinkler system installations, changes, modifications, alterations, and supply
additional sprinkler heads or other equipment as required whether the work
involved shall be structural or nonstructural in nature. See Article 49.
Elevators, Heat, Cleaning: 31. As long as Tenant is not in default under any
of the covenants of this lease beyond the applicable grace period provided in
this lease for the curing of such defaults, Owner shall: (a) provide necessary
passenger elevator facilities on business days from 8 a .m. to 6 p.m. and on
Saturdays from 8 a.m. to 1 p.m.; (b) if freight elevator service is provided,
same shall be provided only on regular business days Monday through Friday
inclusive, and on those days only between the hours of 9 a.m. and 12 noon and
between 1 p.m. and 5 p.m.; (c) furnish heat, water and other services supplied
by Owner to the demised premises, when and as required by law, on business days
from 8 a.m. to 6 p.m. and on Saturdays from 8 a.m. to 1 p.m.; (d) clean the
public halls and public portions of the building which are used in common by all
tenants. Tenant shall, at Tenant's expense, keep the demised premises, including
the windows, clean and in order, to the reasonable satisfaction of Owner, and
for that purpose shall employ the person or persons, or corporation approved by
Owner. Tenant shall pay to Owner the cost of removal of any of Tenant's refuse
and rubbish from the building. Bills for the same shall be rendered by Owner to
Tenant at such time as Owner may elect and shall be due and payable hereunder,
and the amount of such bills shall be deemed to be, and be paid as, additional
rent. Tenant shall, however, have the option of independently contracting for
the removal of such rubbish and refuse in the event that Tenant does not wish to
have same done by employees of Owner. Under such circumstances, however, the
removal of such refuse and rubbish by others shall be subject to such rules and
regulations as, in the judgment of Owner, are necessary for the proper operation
of the building. Owner reserves the right to stop service of the heating,
elevator, plumbing and electric systems, when necessary, by reason of accident,
or emergency, or for repairs, alterations, replacements or improvements, in the
judgment of Owner desirable or necessary to be made, until said repairs,
alterations, replacements or improvements shall have been completed. If the
building of which the demised premises are a part supplies manually operated
elevator service, Owner may proceed diligently with alterations necessary to
substitute automatic control elevator service without in any way affecting the
obligations of Tenant hereunder.
Captions: 33. 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 provision thereof.
Definitions: 34. The term "Owner" as used in this lease means only the owner of
the fee or of the leasehold of the building, or the mortgage in possession, for
the time being of the land and building (or the owner of a lease of the building
or of the land and building) of which the demised premises form a part, so that
in the event of any sale or sales of said land and building or of said lease, or
in the event of a lease of said building, or of the land and building, the said
Owner shall be and hereby is entirely freed and relieved of all covenants and
obligations of Owner hereunder, and it shall be deemed and construed without
further agreement between the parties or their successors in interest, or
between
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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 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 "rent"
includes the annual rental rate whether so expressed or expressed in monthly
installments, and "additional rent." "Additional rent" means all sums which
shall be due to Owner from Tenant under this lease, in addition to the annual
rental rate. The term 'business days" as used in this lease, shall exclude,
Saturdays, Sundays and all days observed by the State or Federal Government as
legal holidays and those designated as holidays by the applicable building
service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service. Wherever it is expressly
provided in this lease that consent shall not be unreasonably withheld, such
consent shall not be unreasonably delayed.
Adjacent Excavation Shoring: 35. If an excavation shall be made upon land
adjacent to the demised premises, or shall be authorized to be made, Tenant
shall afford to the person causing or authorized to cause such excavation,
license to enter upon the demised premises for the purpose of doing such work as
said person shall deem necessary to preserve the wall or the building of which
demised premises form a part from injury or damage and to support the same by
proper foundations without any claim for damages or indemnity against Owner, or
diminution or abatement of rent.
Rules and Regulations: 36. Tenant and Tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully, and comply strictly with, the
Rules and Regulations annexed hereto and such other and further reasonable Rules
and Regulations as Owner or Owner's agents may from time to time adopt. Notice
or any additional rules or regulations shall be given in such manner as Owner
may elect. In case Tenant disputes the reasonableness of any additional Rule or
Regulation hereafter made or adopted by Owner or Owner's agents, the parties
hereto agree to submit the question of the reasonableness of such Rule or
Regulation for decision to the New York office of the American Arbitration
Association, whose determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rule or
Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing upon Owner within fifteen (15) days
after the giving of notice thereof. Nothing in this lease contained shall be
construed to impose upon Owner any duty or obligation to enforce the Rules and
Regulations or terms, covenants or conditions in any other lease, as against any
other tenant and Owner shall not be liable to Tenant for violation of the same
by any other tenant, its servants, employees, agents, visitors or licensees.
Glass: 37. Owner shall replace, at the expense of the Tenant, any and all plate
and other glass damaged or broken from any cause whatsoever in and about the
demised premises. Owner may insure, and keep insured, at Tenant's expense, all
plate and other glass in the demised premises for and in the name of the Owner.
Bills for the premiums therefor shall be rendered by Owner to Tenant at such
times as Owner may elect, and shall be due, from, and payable by, Tenant when
rendered, and the amount thereof shall be deemed to be, and be paid, as
additional rent.
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Estoppel Certificate: 38. Tenant, at any time, and from time to time, upon at
least 10 days' prior notice by Owner, shall execute, acknowledge and deliver to
Owner, and/or to any other person, firm or corporation specified by Owner, a
statement certifying that this lease is unmodified 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.
Directory Board Listing: 39. If, at the request of and as accommodation to
Tenant, Owner shall place upon the directory board in the lobby of the building,
one or more names of persons other than Tenant, such directory board listing
shall not be construed as the consent by Owner to an assignment or subletting by
Tenant to such person or persons.
Successors and Assigns: 40. The covenants, conditions and agreements contained
in this lease shall bind and inure to the benefit of Owner and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this lease, their assigns. Tenant shall look
only to Owner's estate and interest in the land and building for the
satisfaction of Tenant's remedies for the collection of a judgement (or other
judicial process) against Owner in the event of any default by Owner hereunder,
and no other property or assets of such Owner (or any partner, member, officer
or director thereof, disclosed or undisclosed), shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to this lease, the relationship of Owner and
Tenant hereunder, or Tenant's use and occupancy of the demised premises.
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
Witness for Owner: 601 WEST ASSOCIATES LLC
_____________________________ BY: ______________________ [L.S.]
Name:
Title:
Witness for Tenant: SCREAMINGMEDIA.NET, INC.
_____________________________ BY: ______________________ [L.S.]
Name:
Title:
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<PAGE> 17
ACKNOWLEDGMENTS
CORPORATE TENANT
STATE OF NEW YORK, SS.:
County of
On this day of , 19 , before me
personally came to me known, who being by me duly sworn, did depose and
say that he resides in that he is the of
the corporation described in and which executed the foregoing instrument, as
TENANT; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that is was so affixed by order of the
Board of Directors of said corporation, and that he signed his name thereto by
like order.
INDIVIDUAL TENANT
STATE OF NEW YORK, SS.:
County of
On this day of , 19 , before me
personally came to be known and known to me to be the individual
described in and who, as TENANT, executed the foregoing instrument and
acknowledged to me that he executed the same.
IMPORTANT -- PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF THIS LEASE IN ACCORDANCE
WITH ARTICLE 36.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed 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 from ice, snow, dirt and 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
of 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 buildings by reason of noise, odors, and or
vibrations, or interfere in any way, with other Tenants or those having business
therein, nor shall any bicycles, vehicles, animals, fish, or birds be kept in or
about the building. Smoking or carrying lighted cigars or cigarettes in the
elevators of the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls of
the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premises if the
same is visible from the outside of the premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance door
of the premises. In the event of 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 directory tablet shall be inscribed, painted or affixed for each
Tenant by Owner at the expense of such Tenant, and shall be of a size, color and
style acceptable 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 Owner, and as Owner may direct. No Tenant shall lay linoleum, or
other similar floor covering, so that the same shall come in direct contact with
the floor of the demised premises, and, if linoleum or other similar floor
covering is desired to be used, an interlining of builder's deadening felt shall
be first affixed to the floor by a paste or other material, soluble in water,
the use of cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing locks
or mechanism thereof. Each Tenant must, upon the termination of his Tenancy,
restore to Owner all keys of stores, offices and toilet rooms, either furnished
to, or otherwise procured by, such Tenant, and in the event of the loss of any
keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to 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. No tenant shall obtain for use upon the demised premises ice, drinking
water, towel and other similar services, or accept barbering or bootblacking
services in the demised premises, except from persons authorized by Owner, and
at hours and under regulations fixed by Owner. 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. Notwithstanding the foregoing, Owner
shall not be required to allow Tenant or any person to enter or remain in the
building, except on business days from 8:00 a.m. to 6:00 p.m. and on Saturdays
from 8:00 a.m. to 1:00 p.m. 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 loft building, 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
promises, any inflammable, combustible, or 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 permute in or
emanate from the demised premises.
13. Tenant shall not use the demised premises in a manner which disturbs or
interferes with other Tenants in the beneficial use of their premises.
SEE SUPPLEMENTAL RULES AND REGULATIONS PURSUANT TO ARTICLE 36 ANNEXED HERETO AND
HEREBY MADE A PART HEREOF TO WHICH TENANT AGREES TO BE BOUND BY EXECUTION OF
THIS LEASE.
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RIDER
ANNEXED TO LEASE DATED AS OF MARCH __, 1999
BETWEEN
601 WEST ASSOCIATES, LLC, AS LANDLORD
AND
SCREAMINGMEDIA.NET, INC., AS TENANT
41. RIDER PROVISIONS PREVAIL.
If and to the extent that any of the provisions of this Rider conflict
or are otherwise inconsistent with any of the preceding printed provisions of
this Lease, or of the Rules and Regulations attached to this Lease, whether or
not such inconsistency is expressly noted in this Rider, the provisions of this
Rider shall prevail, and in case of inconsistency with said Rules and
Regulations, shall be deemed a waiver of such Rules and Regulations.
42. COMMENCEMENT OF TERM.
The commencement date of the term of this Lease ("Commencement Date")
shall be the earliest to occur of (i) the date on which Landlord's Work (as
hereinafter defined) to be performed in the Premises is substantially completed
(as hereinafter defined), or (ii) the date on which Landlord's Work in the
Premises would have been substantially completed but for Tenant's Delay (as
hereinafter defined) or, (iii) the date Tenant or anyone claiming under or
through Tenant first occupies the Premises for the conduct of its business.
43. FIXED RENTAL AND ADDITIONAL RENTAL.
43.1 Tenant covenants to pay Landlord, at the above address, or at such
other address as Landlord shall designate:
43.1.1 A fixed rental ("Fixed Rental") at an annual rate of:
(i) $210,000.00 per year ($17,500.00 per month)
for the lease year commencing on the
Commencement Date (defined in Article 42
above and continuing thereafter to and
including March 31, 2002;
(ii) $231,000.00 per year ($19,250.00 per month)
for the lease year commencing April 1, 2002,
and continuing thereafter to and including
March 31, 2006;
(iii) $252,000.00 per year ($21,000.00 per month)
for the lease year commencing April 1, 2006,
and continuing thereafter to and including
March 31, 2009 (the "Termination Date").
Fixed Rental shall be payable by Tenant by check drawn on a bank which
is a member of the New York City Clearing House Association, having an office in
the City of New York, in lawful money of the United States, in equal monthly
installments in advance at the office of Landlord without previous demand
therefor and without any setoff or deduction whatsoever, on the first day of
each and every calendar month throughout the term of this Lease, except that the
first monthly installment of Fixed Rental due hereunder shall be paid on the
execution of this Lease. Provided that Landlord countersigns and delivers a
fully executed copy of this Lease, Landlord may deposit the first monthly
payment of rent. So long as Tenant is not in default hereunder at the time that
the Fixed Rental becomes due and payable, the payment made on this date shall be
applied to the first installment of Fixed Rental due; otherwise, the same shall
be applied to the damages, if any, to which Landlord is entitled upon Tenant's
breach of this Lease. If the payment made on the date of this Lease is
uncollectible, the Lease shall, at Landlord's option, be of no force and effect,
ab initio, whether or not Tenant shall have entered into possession of the
Premises. If the Commencement Date (as defined in Article 42 above) occurs on a
day other than the first day of a calendar month, the Fixed Rental for such
calendar month shall be prorated, and the balance of the first month's Fixed
Rental theretofore paid shall be credited against the next monthly installment
of Fixed Rental.
Tenant's obligation to pay for the cost of
electricity for the Premises shall commence on the Commencement Date,
43.1.2 Additional rental ("Additional Rental"), consisting of
all such monies other than Fixed Rental as shall be due and payable under this
lease by Tenant.
43.2 Provided that Tenant is not then in default under the terms of
this Lease, Tenant shall be entitled to a one-time, nonrecurring credit against
the obligation to pay Fixed Rental, in the amount of $87,500.00, (the "Credit")
to be applied as follows: (i) $52,500.00 against the Fixed Rental due commencing
on the Commencement Date and continuing thereafter through the end of the third
month following the Commencement Date. If the Commencement Date is a date other
than the first day of a month, then this portion of the Credit shall be
prorated, and the balance shall be applied against the Fixed Rental due for the
fourth month following the Commencement Date, (ii) $17,500.00 against the Fixed
Rental due for March 2000, and (iii) $17,500.00 against the Fixed Rental due for
April 2000. Notwithstanding the foregoing, the Credit shall not be applied
against any Additional Rental, electricity charges, or other like sums from time
to time payable by Tenant pursuant to this Lease, which amounts shall be paid
without abatement in accordance with the terms of this Lease,
44. RENT ESCALATION -- CONSUMER PRICE INDEX.
44.1 Definitions: For the purposes of this Article, the following
definitions shall apply:
(a) The term "Price Index" shall mean the "Consumer Price
Index" published by the bureau of Labor Statistics of
the U.S. Department of Labor, All Urban Consumers
("CPI-U") New York-Northern New Jersey-Long
Island-All Items (1982-84 = 100) or a successor or
substitute index appropriately adjusted.
(b) The term "Base Price Index" shall mean the Price
Index for the month of February 1999.
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44.2 Effective as of each April 1 (the "Change Date") throughout the
term of this Lease, commencing April 1, 2000, there shall be made cost of living
adjustments of the Fixed Rental payable hereunder. The adjustment shall be based
on the percentage difference between the Price Index for the applicable
preceding month of February and the Base Price Index.
(a) In the event the Price Index for February in any
calendar year during the term of this Lease reflects
an increase over the Base Price Index, then the Fixed
Rental herein provided to be paid as of the April 1st
following such month of February shall be multiplied
by the percentage increase between the Price Index
for February of such applicable calendar year and the
Base Price Index, and the resulting sum shall be
added to such annual Fixed Rental, effective as of
April 1st. Said adjusted Fixed Rental shall
thereafter he payable hereunder in equal monthly
installments, until it is readjusted pursuant to the
terms of this Lease. Landlord agrees that the
adjusted Fixed Rental in any one-lease year shall not
be greater than One Hundred Four Percent (104%) of
the adjusted Fixed Rental for the previous lease
year.
(b) The following illustrates the intentions of the
parties hereto as to the computation of the
aforementioned cost of living adjustment in the
annual Fixed Rental payable hereunder,
Assuming that said annual Fixed Rental is $10,000,
that the Base Price Index was 102.0 and that the
Price Index for the month of February 2000 was 105.0,
then the percentage increase thus reflected, i.e.,
2.94% (3.0/102.0 multiplied by 100), would be
multiplied by $10,000, and said annual Fixed Rental
would be increased by $294.00 effective as of April
1, 2000 (paid in equal monthly installments).
44.3 In the event that the Price Index ceases to use 1982-84 = 100 as
the basis of calculation, or if a substantial change is made in the terms or
number of items contained in the Price Index, then the Price Index shall be
adjusted to the figure that would have been arrived at had the manner of
computing the Price Index in effect at the date of this Lease not been altered.
In the event such Price Index (or a successor or substitute index) is not
available, a reliable governmental or other nonpartisan publication evaluating
the information theretofore used in determining the Price Index shall be used.
44.4 No adjustments or recomputations, retroactive or otherwise, shall
be made due to any revision which may later be made in the first published
figure of the Price Index for any month.
44.5 Landlord will cause statements of the cost of living adjustments
provided for in Section 44.2 to be prepared in reasonable detail and delivered
to Tenant.
44.6 In no event shall the Fixed Rental provided to be paid under this
Lease (as increased pursuant to this Article 44) be reduced by virtue of the
provisions of this Article.
44.7 Any delay or failure of Landlord, in computing or billing for the
rent adjustments herein above provided, shall not constitute a waiver of or in
any way impair the continuing obligation of Tenant to pay such rent adjustments
hereunder.
44.8 Notwithstanding any expiration or termination of this Lease prior
to the expiration date (except in the case of a cancellation by mutual
agreement) Tenant's obligation to pay Fixed Rental as adjusted under this
Article shall continue and shall cover all periods up to the expiration date,
and shall survive any expiration of this Lease.
45. AS IS CONDITION; LANDLORD'S WORK.
45.1 Tenant has thoroughly examined the Premises (including the
terrace) and is fully familiar with the condition thereof, and, except as
specifically set forth in this Lease, neither Landlord nor Landlord's agents
have made any representations, warranties or promises, either express or
implied, with regard to the physical condition of the Building, or the Premises,
the use or uses to which the Premises may be put, or the condition of any
mechanical, plumbing, electrical, flue, ventilation or exhaust systems servicing
the Premises. It is expressly understood that Landlord shall not be liable for
any latent or patent defects in the Premises. Tenant agrees to accept the
Premises "as is" and in such condition as the same may be in at the Commencement
Date, and, except for the work set forth on Exhibit B attached hereto, Landlord
shall not be obligated or required to do any work or to make any alterations or
decorations or install any fixtures, equipment or improvements, or make any
repairs or replacements to or in the Premises to prepare or fit the same for
Tenant's use or for any other reason whatsoever. Unless specifically agreed
otherwise, all Landlord's Work shall be of material, design, finish and color of
the building standard adopted from time to time by Landlord. The installations,
facilities, materials and work so to be furnished, installed and performed in
the Premises by Landlord at its expense are hereinafter and in Exhibit B
referred to as "Landlord's Work." All other installations, facilities, materials
and work which may be undertaken by or for the account of Tenant to prepare,
equip, decorate and furnish the Premises for Tenant's occupancy, shall be at
Tenant's expense, and are hereinafter called "Tenant's Work." In the event
specific locations or dimensions are not provided for the furnishing or
installation of any particular item of Landlord's Work, the judgment of Landlord
reasonably exercised shall be binding on Tenant. In no event shall Landlord be
required to provide any material, work or installation not specifically
described or included in Landlord's Work.
46. SUBSTANTIAL COMPLETION.
46.1 The Premises shall be deemed ready for occupancy on the date that
Landlord's Work in the Premises shall have been substantially completed. The
Premises shall be substantially completed when all major items of construction
have been substantially completed and the Premises is accessible and reasonably
usable, notwithstanding the fact (i) that minor or insubstantial details of
construction, mechanical adjustment or decoration remain to be performed, the
noncompletion of which do not materially interfere with Tenant's use of the
Premises (so-called "punch-list" items), and (ii) that Landlord's Work has been
substantially completed except for portions thereof which shall be completed
upon the completion of Tenant's Work.
46.2 If the completion of Landlord's Work shall be delayed due to any
act or omission of Tenant or any of its employees, agents or contractors or any
failure to plan or to execute Tenant's Work diligently and expeditiously, for
which Landlord shall give Tenant five (5) days' written notice ("Tenant's
Delay"), the Premises shall be deemed ready for occupancy on the date when they
would have been ready but for the Tenant's Delay.
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46.3 If and when Tenant shall take actual possession of the Premises,
it shall be conclusively presumed that the same were in satisfactory condition
as of the date of such taking of possession, unless within ten (10) days after
such date Tenant shall give Landlord notice specifying the respects in which the
Premises were not in satisfactory condition.
47. TENANT'S INITIAL INSTALLATIONS.
47.1 Tenant agrees, at Tenant's sole cost and expense, to cause the
Premises to be improved in accordance with the plans approved by Landlord in
writing ("Approved Plan") (which improvement is hereinafter referred to as
"Tenant's Initial Installations"), which approval shall not be unreasonably
withheld or delayed. Tenant's obligation hereunder shall include, without
limitation, the obligation to pay for all soft costs, environmental and other
investigatory expenses, construction expenses, filings, architectural fees,
engineering fees and other like items necessary in order to lawfully complete
Tenant's Initial Installations. Tenant's performance of Tenant's Initial
Installations shall be performed with due diligence and in a good and
workmanlike manner so that the same shall be completed (subject to delays beyond
the reasonable control of Tenant; provided that in the event of such delay(s)
Tenant shall use its reasonable efforts to minimize the effect of such delay and
shall resume performance promptly after the cause of such delay has been
eliminated and thereafter shall carry out Tenant's Initial Installations with
due diligence to completion) not later than ninety (90) days following the date
on which Landlord shall have consented to the Approved Plans. Tenant's Initial
Installations shall be performed and the quality, materials and appearance of
Tenant's Initial Installations shall, unless otherwise specifically agreed to by
Landlord, be equivalent to or exceed in all respects, the Building standard
installations of Landlord. Tenant, upon request, shall be provided with a list
of building standard specifications, standards and materials; however, Tenant's
failure to request the same shall not excuse Tenant from compliance with the
foregoing requirement.
47.2 During the period following the date of this Lease and during the
performance by Landlord of Landlord's Work, if any, Tenant agrees to submit to
Landlord for Landlord's review and approval all items mentioned in Article 69
below of this Lease with respect to Alterations as the same may pertain to
Tenant's Initial Installations. Landlord shall either approve or comment on
Tenant's submissions within ten (10) calendar days after receipt, which approval
or comments shall not be unreasonably withheld, delayed, or conditioned (in the
case of an approval). If any of Tenant's submissions are not approved by
Landlord, Tenant shall resubmit any disapproved items within five (5) business
days after receipt of Landlord's comments. Tenant's Initial Installations shall
be commenced promptly after receipt by Tenant of all permits and approvals
necessary for the same to be legally carried out and after delivery to Landlord
of all items that must be delivered prior to the commencement of any
Alterations. All of Tenant's Initial Installations shall be performed in
accordance with the provisions of Article 69 below of this Lease.
47.3 Landlord approves T. Lee Contracting, Inc., having an address at
156 Attorney Street, New York, New York 10002, as the contractor for Tenant's
Initial Installations.
47.4 Tenant agrees to maintain, at Tenant's sole cost and expense,
William Vittaco for the purpose of expediting the filing of building plans and
obtaining its building permit in connection with Tenant's Initial Installation.
48. ESCALATIONS FOR INCREASE IN REAL ESTATE TAXES.
48.1 For each Tax Year or portion thereof occurring in whole or in part
during the term or any renewal term of this Lease, Tenant shall pay, as
Additional Rental, the Tax Payment (hereafter defined) for such Tax Year or
portion thereof.
48.2 "Taxes" shall mean the total of all real estate taxes and
assessments and special assessments, business improvement district charges, and
other levies of a similar nature levied, assessed or imposed upon or against the
land, the Landlord and/or Building located at 601 West 26th Street, New York,
New York (individually referred to hereinafter as the "Land" and the
"Building"). If at any time during the term of this Lease the methods of
taxation prevailing at the commencement of the term hereof shall be altered so
that if and to the extent that in lieu of or as a substitute for the whole or
any part of the taxes, assessments, levies or impositions of charges now levied,
assessed or imposed on real estate and the improvements thereon, there shall be
levied, assessed or imposed: (i) a tax, assessment, levy, imposition or charge
wholly or partially as capital levy or otherwise on the rents received
therefrom; (ii) a tax, assessment, levy, imposition or charge measured by or
based in whole or in part upon the Building or the Land or the Premises and
imposed upon Landlord; (iii) a license fee measured by the rents payable by
Tenant to Landlord; or (iv) any additional or substitute tax assessment, levy,
imposition or charges against the Land and/or the Building; then all such taxes,
assessments, levies, impositions or charges or part thereof so measured or
based, shall be deemed to be included with the term "Taxes." Notwithstanding the
provisions of this Article 48 to the contrary, the term "Taxes" shall not
include corporation, franchise, income, profit or capital levy taxes, or
inheritance, succession, estate, gift or transfer taxes. Landlord shall use its
best efforts to minimize Taxes, including, without limitation, contesting same.
48.3 "Tax Year" shall mean the fiscal year for which Taxes are levied
by the applicable governmental authority.
48.4 "Base Tax" shall mean the Taxes payable in the fiscal year
commencing July 1, 1999 and ending June 30, 2000 (such fiscal year being
hereinafter referred to as the "Base Tax Year").
48.5 "Tenant's Proportionate Share" shall mean 0.50%.
48.6 If the Taxes for any Tax Year occurring wholly or partially within
the term of this Lease or any renewal or extension thereof shall be greater than
the Base Tax, Tenant shall pay as Additional Rental for such Tax Year a sum
equal to Tenant's Proportionate Share of the amount by which the Taxes for such
Tax Year are greater than the Base Tax (which amount is hereinafter called the
"Tax Payment"). Should this Lease commence or terminate prior to the expiration
of a Tax Year, such Tax Payment shall be prorated to correspond with that
portion of a Tax Year occurring within the term of this Lease. Tenant's
obligation to pay such Additional Rental and Landlord's obligation to refund
pursuant to Paragraph 48.7 below, as the case may be, shall survive the
termination or sooner expiration of this Lease.
48.7 Only Landlord shall be eligible to institute proceedings to
contest the Taxes or reduce the assessed valuation of the Land and Building.
Landlord shall be under no obligation to contest the Taxes or the assessed
valuation of the Land and Building for any Tax Year or to refrain from
contesting the same, and may settle any such contest on such terms as Landlord
in its sole judgment considers proper. If Landlord shall receive a refund for
any Tax Year for which a Tax Payment shall have been made by Tenant pursuant to
Paragraph 48.6 above, Landlord shall repay to Tenant, with reasonable
promptness, Tenant's Proportionate Share of such refund after deducting from
such refund Tenant's Proportionate Share of the reasonable costs and expenses
(including experts' and attorneys' fees) of obtaining such refund. If the
assessment for the Base Tax Year shall be reduced from the amount originally
imposed after Landlord shall have rendered a comparative statement (as provided
in Paragraph 48.8 below) to Tenant with respect to a Tax Year, the amount of
each Tax Payment shall be retroactively adjusted in accordance with
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such change, and Tenant, on Landlord's demand, shall pay any retroactive
increase in Additional Rental resulting from such adjustment.
48.8 Landlord shall render to Tenant a comparative statement, with a
copy of the then current tax bill, showing the amount of the Base Tax, the
amount of the Taxes for the then current Tax Year, and the Tax Payment, if any,
due from Tenant for such Tax Year. The Tax Payment shown on such comparative
statement shall be paid in full by Tenant to Landlord within ten (10) days after
Tenant's receipt of such comparative statement, or, at Landlord's option, shall
be paid in two (2) installments on July 1 and January 1 of each Tax Year. At the
election of Landlord, the Tax Payment may be billed by Landlord and paid by
Tenant in equal monthly installments, together with installments of Fixed Rental
payable under this Lease. Tenant shall pay the amount of the Tax Payment shown
on such comparative statement (or the balance of a proportionate installment
thereof, if only an installment is involved) concurrently with the installment
of Fixed Rental then or next due, or if such statement shall be rendered at or
after the termination of this Lease, within ten (10) days after such rendition.
Each comparative statement shall be conclusive and binding on Tenant, unless
within ten (10) days after receipt of such comparative statement, Tenant shall
notify Landlord of any discrepancy in specific detail. Pending the determination
of such dispute, by agreement or otherwise, Tenant shall pay the Tax Payment set
forth on the comparative statement.
49. WATER, SEWER AND SPRINKLER CHARGES.
Tenant shall pay to Landlord, as additional rent hereunder, Tenant's
Proportionate Share of (i) any and all water meter and/or frontage charges and
sewer rents levied, assessed or imposed against the Building and the Land and
(ii) all charges paid by Landlord for sprinkler supervisory services for the
Building. The amounts payable to Tenant under the preceding sentence shall be
payable on the first day of each and every month during the term of this Lease
commencing from and after the Commencement Date.
50. ALL ADDITIONAL RENTAL PAYMENTS.
50.1 Landlord's delay or failure during the term of this Lease to
prepare and deliver any statements or bills required to be delivered to Tenant
under Articles 48, 49 and 50 shall not in any way be deemed to be a waiver of,
or cause Landlord to forfeit or surrender its rights to collect any Additional
Rental which may have become due pursuant to these Articles during the term of
this Lease. Tenant's liability for Additional Rental due under Articles 48, 49
and 50 shall continue unabated during the remainder of the term of this Lease
and shall survive the expiration or sooner termination of this Lease.
50.2 In no event shall any adjustment of any payments payable by Tenant
in accordance with the provisions of Articles 48, 49 and 50 result in a decrease
in the Fixed Rental or any Additional Rental theretofore payable by Tenant
pursuant to these Articles.
50.3 If any Additional Rental is payable with respect to any period
that shall end after the expiration or termination of this Lease, the Additional
Rental payable by Tenant in respect thereof shall be prorated to correspond to
that portion of such Escalation Year occurring within the term of this Lease.
51. ASSIGNMENT AND SUBLETTING.
51.1 Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this Lease or any of
its rights or estates hereunder, sublet the Premises or any part thereof, or
permit the Premises, or any part thereof to be used or occupied by others,
pursuant to a management agreement, license agreement or otherwise, without the
prior written consent of Landlord in each instance. If this Lease be assigned,
or if the Premises or any part thereof be sublet or occupied by anybody other
than Tenant, Landlord 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 assignment, subletting, occupancy or collection shall be
deemed a waiver of the provisions hereof, the acceptance of the assignee,
subtenant or occupant as tenant, or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant herein contained.
Landlord's consent to an assignment or subletting shall not, in any wise, be
construed to relieve Tenant from obtaining Landlord's express written consent to
any further assignment or subletting. In no event shall any permitted sublessee
assign or encumber its sublease, further sublet all or any portion of its sublet
space or otherwise suffer to permit the sublet space, or any part thereof, to be
used or occupied by others, without Landlord's prior written consent in each
instance. A modification, amendment or extension of a sublease shall be deemed
to be a subletting.
51.2 If Tenant shall, at any time or times during the term of this
Lease, desire to assign this Lease or sublet all or part of the Premises, Tenant
shall give notice thereof to Landlord, which notice shall be accompanied by: (a)
a conformed or photostatic copy of the proposed assignment or sublease, the
effective or commencement date of which shall be not less than fifteen (15) nor
more than forty-five (45) days after the giving of such notice; (b) a statement
setting forth, in reasonable detail, the identity of the proposed assignee or
subtenant and its principals, the nature of its business and its proposed use of
the Premises; and (c) current financial information with respect to the proposed
assignee or subtenant and its principals, including its (and their) most recent
financial report(s).
51.3 No assignment or subletting shall be made:
11.3.1 by the legal representatives of Tenant or by any person
to whom Tenant's interest under this Lease passes by operation of law, except in
compliance with the provisions of this Article; or
51.3.2 to any person or entity for the conduct of a business
which is not in keeping with the Certificate of Occupancy and applicable zoning
laws.
51.4 The sublease shall expressly prohibit the use of the Premises or
any part thereof for any use other than the use set forth in paragraph 2 of the
prefixed printed form.
51.5 In the event that Tenant fails to execute and deliver the
assignment or sublease to which Landlord consented within ninety (90) days after
the giving of such consent, then Tenant shall again comply with all of the
provisions and conditions of Article 51.2 before assigning this Lease or
subletting all or part of the Premises.
51.6 Each subletting pursuant to this Article shall be subject to all
of the applicable covenants, agreements, terms, provisions and conditions
contained in this Lease. Notwithstanding any such subletting and/or acceptance
of rent or additional rent by Landlord from any subtenant, Tenant shall and will
remain fully liable for the payment of the Fixed Rental
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and Additional Rental due, and to become due, hereunder, for the performance of
all of the covenants, agreements, terms, provisions and conditions contained in
this Lease on the part of Tenant to be performed and for all acts and omissions
of any licensee, subtenant, or any other person claiming under or through any
subtenant that shall be in violation of any of the obligations of this Lease,
and any such violation shall be deemed to be a violation by Tenant. Tenant
further agrees that, notwithstanding any such subletting, no other and further
subletting of the Premises by Tenant, or any person claiming through or under
Tenant shall, or will be made, except upon compliance with, and subject to, the
provisions of this Article. If Landlord shall decline to give its consent to any
proposed assignment or sublease, Tenant shall indemnify, defend and hold
Landlord harmless from and against any and all losses, liabilities, damages,
costs and expenses (including reasonable counsel fees) resulting from any claims
that may be made against Landlord by the proposed assignee or subtenant or by
any brokers or other persons claiming a commission or similar compensation in
connection with the proposed assignment or sublease.
51.7 With respect to each and every sublease or subletting, it is
further agreed that:
51.7.1 no subletting shall be for a term ending later than one
day prior to the expiration date of the term of this Lease;
51.7.2 no sublease shall be valid, and no subtenant shall take
possession of the Premises or any part thereof, until an executed counterpart of
such sublease has been delivered to Landlord;
51.7.3 each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which this Lease is or shall be
subordinate, and that, in the event of termination, reentry, or dispossess by
Landlord under this Lease, Landlord may, at its option, take over all of the
right, title and interest of Tenant as sublandlord under such sublease, and such
subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then
executory provisions of such sublease, except that Landlord shall not: (a) be
liable for any previous act or omission of Tenant under such sublease; (b) be
subject to any offset, not expressly provided in such sublease, that theretofore
accrued to such subtenant against Tenant; or (c) be bound by any previous
modification of such sublease or by any previous prepayment of more than one
month's fixed rent or any additional rent then due.
51.8 Any assignment or transfer shall be made only if, and shall not be
effective until, the assignee shall execute, acknowledge and deliver to Landlord
an agreement, in form and substance reasonably satisfactory to Landlord, whereby
the assignee shall assume all of the obligations of this Lease on the part of
Tenant to be performed or observed and whereby the assignee shall agree that the
provisions contained in Article 51.1 shall, notwithstanding such assignment or
transfer, continue to be binding upon it in respect of all future assignments
and transfers. The original named Tenant covenants that, notwithstanding any
assignment or transfer, whether or not in violation of the provisions of this
Lease, and notwithstanding the acceptance of fixed rent and/or additional rent
by Landlord from an assignee, transferee, or any other party, the original named
Tenant shall remain fully liable for the payment of Fixed Rental and Additional
Rental and for the other obligations of this Lease on the part of the Tenant to
be performed or observed.
51.9 In no event shall Tenant be entitled to make, nor shall Tenant
make, any claim, and Tenant hereby waives any claims, for money damages (nor
shall Tenant claim any money damages by way of set-off counterclaim or defense)
based upon any claim or assertion by Tenant that Landlord has unreasonably
withheld or unreasonably delayed its consent or approval to a proposed
assignment or subletting as provided for in this Article. Tenant's sole remedy
shall be an action or proceeding to enforce any such provision, or for specific
performance, injunction or declaratory judgment.
51.10 If applicable, one or more sales or transfers, by operation of
law or otherwise, or creation of new stock, partnership, membership or voting
interests, aggregating in excess of fifty percent (5 0%) of (i) the voting stock
of any corporate tenant, or (ii) the limited or general partnership interest in
any partnership tenant, or (iii) the membership interests in any limited
liability company tenant, whether in a single transaction or in a series of
transactions, shall be deemed an assignment within the meaning of this Article
and shall require Landlord's prior written consent. From time to time, if
applicable, at Landlord's request, Tenant shall provide Landlord with a
statement of Tenant, certified by Tenant's Secretary, of its then current
shareholders and persons having a beneficial interest in the shares of stock of
Tenant, the names of such shareholders and beneficial interest holders, and the
percentage of shares held by each of them.
51.11 The joint and several liability of Tenant and any immediate or
remote successor in interest to Tenant, and the due performance of the
obligations of this Lease on Tenant's part to be performed or observed, shall
not be discharged, released, or impaired in any respect by any agreement or
stipulation made by Landlord extending the time of, or modifying any of the
obligations of this Lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this Lease.
51.12 The listing of any name other than that of Tenant, whether on the
doors of the Premises, or otherwise, shall not operate to vest any right or
interest in this Lease or in the Premises, nor shall it be deemed to be the
consent of Landlord to any assignment or transfer of this Lease, to any sublease
of the Premises, or to the use or occupancy thereof by others.
51.13 If Tenant shall enter into any subleases, assignments or other
agreements for the occupancy of the Premises or any portion thereof, or if there
is a transfer of this Lease by operation of law, or otherwise, and if Tenant
shall receive any consideration from its assignee, subtenant or licensee for or
in connection with the assignment or the subletting, as the case may be, or, if
Tenant shall sublet or otherwise permit occupancy of the Premises at a rental
rate (including Additional Rental) or other periodic aggregate consideration,
Tenant shall pay to Landlord, upon receipt, as Additional Rental hereunder,
one-half of such consideration or excess.
51.14 [IN ORDER TO CHANGE, NEED INSERT] As long as Interactive Media is
the Tenant, Tenant shall have the right, subject to the terms and conditions
hereinafter set forth, without the consent of Landlord, but subject to Tenant's
satisfaction of the conditions set forth in Articles 51.2, 51.3 and 51.8 above,
to assign its interest in this Lease (i) to any corporation which is a successor
to Tenant either by merger or by consolidation, (ii) to a purchaser of all or
substantially all of Tenant's assets (provided such purchaser shall have also
assumed substantially all of Tenant's liabilities), or (iii) to an entity which
shall control, be under the control of, or be under common control with Tenant
(any such entity referred to in this clause (iii) being a Related Entity).
52. LIMITATION OF LIABILITY.
12.1 If Landlord shall be an individual, joint venture, tenancy in
common, co-partnership, limited liability company, unincorporated association,
or other unincorporated aggregate of individuals and/or entities or a
corporation, Tenant shall look only to such Landlord's estate and property in
the Land and the Building for the satisfaction of Tenant's remedies for the
collection of a judgment (or other judicial process) requiring the payment of
money by Landlord in the event of any default by Landlord hereunder, and no
other property or assets of Landlord or any member, partner or principal of
Landlord shall be
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subject to levy, execution or other enforcement procedure for
the satisfaction of Tenant's remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder or Tenant's use or occupancy of
the Premises.
52.2 If Tenant shall request Landlord's consent or approval pursuant to
any of the provisions of this Lease or otherwise, and Landlord shall fail or
refuse to give, or shall delay in giving, such consent or approval, including,
but not limited to, Article 51 above, Tenant shall in no event make, or be
entitled to make, any claim for damages (nor shall Tenant assert, or be entitled
to assert, any such claim by way of defense, set-off, or counterclaim) based
upon any claim or assertion by Tenant that Landlord unreasonably withheld or
delayed its consent or approval, and Tenant hereby waives any and all rights
that it may have from whatever source derived, to make or assert any such claim.
Tenant's sole remedy for any such failure, refusal, or delay shall be an action
for a declaratory judgment, specific performance, or injunction, and such
remedies shall be available only in those instances where Landlord has expressly
agreed in writing not to unreasonably withhold or delay its consent or approval
or where, as a matter of law, Landlord may not unreasonably withhold or delay
the same.
53. INDEMNIFICATION.
Tenant shall, at all times and at its sole cost and expense, indemnify,
defend and hold Landlord, any holder of a Superior Mortgage (defined below), and
any lessor under a Superior Lease (defined below), together with their
respective agents, affiliates, employees, partners, members, officers, directors
and shareholders (collectively, the "Indemnitees") harmless from and against any
and all claims, suits, actions, damages, fines, charges, penalties, losses,
liens, fees, costs, court costs, expenses (including, but not limited to, all
reasonable fees and disbursements of attorneys, architects, engineers and other
professionals engaged by one or more Indemnitees) and liabilities which may be
incurred by or imposed on any Indemnitee or which may arise in connection with
any claims, suits or actions, the investigation thereof or the defense of any
action or proceeding brought thereon, or from the enforcement of this indemnity,
or from and against any orders, judgments and/or decrees which may be entered or
which may arise, wholly or in part, with respect to or on account of: (a) any
personal injury, bodily injury, loss of life and/or damage to property that may
occur or be claimed by or with respect to any person(s) or property on or about
the Premises or the appurtenances thereto or upon the adjacent vaults (if any),
sidewalks, ramps, curbs or streets, and resulting from the use, misuse,
occupancy, operation and/or management of the Premises by Tenant, its
successors, permitted assigns or any subcontractors, or by other persons or
entities claiming by, through or under Tenant, or by their respective agents,
employees, contractors, licensees, invitees, guests or other such persons or
entities, except to the extent such injury, loss and/or damage is due to
Landlord's willful or grossly negligent acts or omissions, (b) the breach of any
term, covenant or condition of this Lease by Tenant, its successors, permitted
assigns or any subcontractors, or by other persons or entities claiming by,
through or under Tenant, or by their respective agents, employees, contractors,
licensees, invitees, guests or other such persons or entities, (c) the filing of
any mechanic's or materialmen's lien or of any other attachment or encumbrance
against the Land and/or the Building due to work done by or on behalf of Tenant,
(d) the condition of the Premises, including any repairs, replacements, changes
or Alterations which Tenant has or will perform or fail to perform therein, or
(e) Tenant's use or storage of any Hazardous Materials (defined below). All such
actions, suits, claims, damages and/or proceedings shall be resisted and
defended by Tenant at its sole cost and expense. Landlord shall in no event be
liable for any injury or damage to the Premises or to Tenant or any successors,
permitted assigns or subcontractors, or other persons claiming by, through or
under Tenant or their respective agents, employees, licensees, invitees,
business visitors and guests or other such persons, or to any property of any
such persons. Tenant shall promptly reimburse each Indemnitee for any and all
expenditures covered by this indemnity and hold harmless.
54. INSURANCE.
54.1 Tenant shall obtain and keep in full force and effect during the
term of this Lease:
54.1.1 a policy of commercial general public liability insurance,
including bodily injury and property damage coverage, with a broad form
contractual liability endorsement or its equivalent, naming Tenant as insured
and protecting Landlord, Landlord's employees and managing agent, and any
mortgagees or lessors having an interest in the Building, as additional insureds
(issued on an "occurrence" basis and not a "claims made" basis) against claims
for personal injury, death and/or third-party property damage occurring in or
about the Premises or the Building, and under which the insurer agrees to waive
any right of recovery such insurer may have had against Landlord, Landlord's
employees and managing agent, and any mortgagees or lessors having an interest
in the Building and to indemnify, defend and hold Landlord harmless from and
against, among other things, all cost, expense and/or liability (including,
without limitation, reasonable attorneys' fees) arising out of or based upon any
and all claims, accidents, injuries and damages occurring in, on or about the
Premises (whether or not such claims, accidents, injuries and damages occurred
as a result of Landlord's negligence). Such policy shall contain a provision
that no act or omission of Tenant shall affect or limit the obligation of the
insurance company to pay the amount of any loss sustained to Landlord. The
minimum limits of liability applicable exclusively to the Premises shall be a
combined single limit with respect to each occurrence in an amount of not less
than $1,000,000.00 (or in any increased amount (or in the form of an umbrella
liability policy for "excess" liability coverage) required by Landlord in the
exercise of Landlord's commercially reasonable discretion); and
54.1.2 insurance against loss or damage by fire and such other
risks and hazards (including burglary, theft, vandalism, sprinkler leakage,
water damage, explosion, breakage of glass within the Premises and, if the
Premises are located at or below grade, broad form flood insurance) as are
insurable under then available standard forms of "all risk" insurance policies
to Tenant's personal property and business equipment and fixtures (hereinafter,
"Tenant's Property") and, whether or not such alterations or tenant improvements
had been paid for or performed by Tenant, any alterations and tenant
improvements in and to the Premises (hereinafter, "Tenant's Work") for the full
replacement cost value thereof (with such policy having a deductible not in
excess of an amount to be determined by Landlord in the exercise of Landlord's
commercially reasonable discretion) protecting Tenant, Landlord, Landlord's
employees and managing agent, and any mortgagees or lessors having an interest
in the Building; and
54.1.3 business interruption insurance in an amount sufficient to
cover Tenant's lost profits and continuing expenses during the period Tenant is
unable to do business in the Premises.
54.2 Prior to the time such insurance is first required to be carried
by Tenant and thereafter, at least thirty (30) days prior to the expiration or
other termination of any such policies, Tenant agrees to deliver to Landlord
evidence of payment for the policies and true and complete copies of the actual
policies together with certificates evidencing such insurance. All such policies
shall contain endorsements that (a) such insurance may not be modified or
cancelled or allowed to lapse except upon thirty (30) days' written notice to
Landlord by certified mail, return receipt requested, containing the policy
number and the names of the insured and the certificate holder, and (b) Tenant
shall be solely responsible for payment of all premiums under such policies and
Landlord shall have no obligation for the payment thereof notwithstanding that
Landlord is or may be named as an additional insured. Tenant's failure to
provide and keep in force the aforementioned insurance shall be regarded as a
material default hereunder, entitling Landlord to exercise any or all of the
remedies as provided in this Lease in the event of Tenant's default. All
insurance required to be carried by Tenant pursuant to the terms of this Lease
shall be effected under valid and enforceable policies issued by reputable and
independent insurers permitted to do business in the State of New York which
rate, in Best's Insurance Guide, or any successor thereto (or if there be none,
an organization having a national reputation), as having a general policy-holder
rating of "A" and a financial rating of at least "XIII." Tenant shall not carry
separate or additional insurance, whether concurrent or contributing, in the
event of any loss or damage, with any insurance required to be obtained by
Tenant under this Lease.
54.3 All policies to be maintained by Tenant hereunder and by Landlord
with respect to the Building shall contain a provision that no act or omission
of Landlord or Tenant, as the case may be, shall affect or limit the obligation
of the insurer to pay the amount of any loss sustained.
54.4 The parties hereto shall procure an appropriate clause in, or
endorsement on, any "all risk" or fire or extended coverage insurance covering
the Premises, the Building, the personal property, fixtures or equipment located
thereon or therein, pursuant to which the insurance companies waive subrogation
or consent to a waiver of right of recovery by the insured prior to any loss.
The waiver of subrogation or permission for waiver of the right of recovery in
favor of Tenant shall also extend to all other persons or entities occupying or
using the Premises in accordance with the terms of the Lease. If the payment of
an additional premium is required for the inclusion of such waiver of
subrogation provisions or consent to a waiver of right of recovery, each party
shall advise the other of the amount of any such additional premiums by written
notice and the other party shall pay the same 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
consent. It is expressly understood and agreed that Landlord will not be
obligated to carry insurance on Tenant's Property or Tenant's Work or insurance
against interruption of Tenant's business.
54.5 Each party hereby waives all rights of recovery, claim, action,
cause of action and releases the other party with respect to any claim
(including a claim for negligence) which it might otherwise have against the
other party for loss, damage or destruction with respect to its property
(including rental value or business interruption) occurring during the term of
this Lease to the extent to which such party is insured under a policy
containing a waiver of subrogation or naming the other party as an additional
assured, as provided in this Article. If notwithstanding the recovery of
insurance proceeds by either party for loss, damage or destruction of its
property (or rental value or business interruption) the other party is liable to
the first party with respect thereto or is obligated under this Lease to make
replacement, repair or restoration, then provided the first party's right of
full recovery under its insurance policies is not thereby prejudiced or
otherwise adversely affected, the amount of the net proceeds of the first
party's insurance against such loss, damage or destruction shall be offset
against the second party's liability to the first party therefor, or shall be
made available to the second party to pay for the replacement, repair or
restoration, as the case may be. Tenant shall advise insurers of the foregoing
and such waiver shall be part of each policy maintained by Tenant which applies
to the Premises, any part of the Premises or Tenant's use and occupancy of any
part thereof.
55. ELECTRIC CURRENT.
55.1 Tenant agrees that Tenant shall not make any electrical or
mechanical installations, alterations, additions or changes to the electrical
equipment or appliances in the Premises (except that Tenant may connect standard
office equipment without Landlord's consent) without the prior written consent
of Landlord, in each such instance and Tenant will at all times comply with the
rules and regulations applicable to the service, equipment, wiring and
requirements of Landlord and of the utility company supplying electricity to the
Building. Tenant covenants and agrees that at all times its use of electricity
will not exceed the capacity of existing feeders to the Building or the risers
or wiring installations therein and Tenant shall not use any electrical
equipment which, in Landlord's sole reasonable judgment, will overload such
installations or interfere with the use thereof by other tenants in the
Building. In the event that Tenant's electrical requirements above those needed
for normal office use necessitate installation of an additional riser, risers or
other proper and necessary equipment or services, including additional
ventilating or air conditioning, the same shall be provided or installed by
Landlord at Tenant's sole expense, provided Tenant's proposed installations
shall be reasonably accommodated in the Building and shall not be detrimental,
in Landlord's sole judgment, to the
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proper and economic functioning of the Building or the use and enjoyment by
other tenants therein. Any such installations shall be paid for by Tenant prior
to Landlord's commencement of the work therefor, such charges shall be
chargeable and collectible as additional rent. In all electrical installations,
rigid conduits only will be allowed.
If either the quantity or character of the electrical service is
changed by the utility company supplying electrical service to the Building or
is no longer available or suitable for Tenant's requirements, no such change,
unavailability or unsuitability shall constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of Fixed Rental or Additional Rental, or relieve Tenant from any of its
obligations under this Lease or impose any liability upon Landlord, or its
agents, by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise, unless such change,
unavailability or unsuitability is due to Landlord's negligence or wrongful act,
55.2 Electricity shall be furnished by Landlord to Tenant on a
"submetering" basis, as follows:
55.2.1 If not already installed, Landlord shall, at its sole
cost and expense, install a meter or meters for the purpose of measuring the
electric current consumed in the Premises; and
With respect to the Premises and/or any portion(s) thereof
that constitute less than a full floor of the Building, Landlord may, at its
option, either:
55.2.2 Install a meter to measure the amount of Usage
(hereinafter defined) with respect solely to the Premises and/or to such,
portion(s); or
55.2.3 Measure the amount of Usage with respect thereto
through common meter(s).
Landlord shall, from time to time, furnish 'Tenant with a
statement indicating the appropriate period during which the Usage was measured
and the amount of Tenant's Cost payable by Tenant to Landlord for furnishing
electrical current. Within ten (10) days after receipt of each such statement,
Tenant shall pay to Landlord as Additional Rental hereunder, the amount of
Tenant's Cost as set forth thereon, plus an amount equal to the actual
out-of-pocket costs and expenses incurred by Landlord in connection with reading
such meters and preparing bills therefor, failing which Landlord may, upon ten
(10) days' written notice to Tenant, discontinue the service of electric current
to the Premises without releasing Tenant from any liability under this Lease and
without Landlord or Landlord's agent incurring any liability to Tenant from any
damage or loss sustained by Tenant by reason of such discontinuance of service.
For the purposes of this subsection, "Usage" shall mean the
number of kilowatt hours of electric current consumed in the Premises, as
measured by a meter or meters through which the electric current supplied to the
Premises is drawn, for each calendar month or such other period as Landlord
shall determine during the term of this Lease. In the event that all or a
portion of the Premises is serviced by a meter that also services other space in
the Building, then Usage with respect to the Premises or the portion thereof
serviced by a common meter, as the case may be, shall be deemed to be an amount
equal to the product of:
(x) The number of kilowatt hours measured by such meter,
multiplied by
(y) The result (hereinafter called "Tenant's Electric
Share") of:
(1) The rentable area of the Premises divided by
(2) The aggregate rentable area of the premises
serviced by such meter.
"Rate" shall mean the amount per kilowatt hour that would be
charged, at the time in question, by the public utility company supplying
electric current to the Building, at the rate schedule payable by Landlord from
time to time, including, without limitation, all applicable surcharges, demand
charges, time-of-day charges, energy charges, fuel adjustment charges, rate
adjustment charges, taxes, and other sums payable in respect thereof.
"Tenant's Cost" shall mean an amount equal to 110% of the
product of the Rate multiplied by the Usage. If any tax is imposed upon
Landlord's receipt from the sale or resale of electrical energy or gas or
telephone service to Tenant by any Federal, State or Municipal Authority, Tenant
covenants and agrees that where permitted by law, Tenant's pro-rata share of
such taxes shall be passed on to, and in included in the bill of, and paid by,
Tenant to Landlord.
55.3 Landlord reserves the right to terminate the furnishing of
electricity on a submetering basis upon thirty (30) days' written notice to
Tenant, in which event, Tenant shall not be released from any liability under
this Lease and Tenant may make application directly to the public utility for
the Tenant's entire separate supply of electric current and Landlord shall
permit its wire and conduits, to the extent available and safely compatible, to
be used for such purpose. Any meters, risers or other equipment or connections
necessary to enable Tenant to obtain electric current directly from such
utility, shall be installed at Tenant's sole cost and expense. Rigid conduits
only will be allowed. Landlord, upon the expiration of the aforementioned thirty
(30) days' written notice to Tenant, may discontinue furnishing the electric
current, but this Lease shall otherwise remain in full force and effect on all
of its terms.
55.4 Any meter(s) installed by Landlord pursuant to this Article shall
be maintained and repaired by Tenant at Tenant's sole cost and expense.
56. BROKER.
Tenant represents and warrants to Landlord that Tenant neither
consulted nor negotiated with any broker or finder with regard to the rental of
the Premises from Landlord, other than New mark & Company and S.L. Realty Corp.,
whose commission shall be paid by Landlord pursuant to Landlord's separate
agreement with said broker. The parties agree to indemnify and hold each other
harmless from any damages, costs and expenses (including reasonable attorneys'
fees incurred in defending an action or claim or enforcing this indemnity)
suffered by the other party by reason of any claim or action for a commission by
any other person, partnership or corporation. The provisions of this Article
shall survive the expiration or earlier termination of this Lease.
57. BINDING EFFECT.
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It is specifically understood and agreed that this Lease is offered to
Tenant for signature by the managing agent of the Building solely in its
capacity as such agent and subject to Landlord's acceptance and approval, and
that Tenant shall have affixed its signature hereto with the understanding that
such act shall not, in any way, bind Landlord or its agent until such time as
this Lease shall have been executed by Landlord and delivered to Tenant.
58. LATE FEE.
In the event that any payment to be made by Tenant hereunder shall
become overdue for a period in excess of seven (7) days, a "late charge" equal
to Three Percent (3%) of the overdue payment may be charged by Landlord and
shall be payable by Tenant as Additional Rental on the 1st day of the month
following Landlord's demand therefor.
59. SECURITY.
59.1 It is agreed that in the event Tenant defaults under the terms of
this Lease beyond the expiration of all grace and notice periods, Landlord may
(but shall not be required to) use, apply or return the whole or any part of the
security so deposited for any sum Landlord may expend by reason of Tenant's
default, or for the payment of any past-due rental. In the event Landlord shall
apply all or any portion of Tenant's security in accordance with this lease,
Tenant shall promptly deposit with Landlord an amount sufficient to restore such
security to the amount set forth in Article 34. If Landlord retains or applies
all or a portion of Tenant's security deposit as a result of Tenant's default in
the payment of Fixed Rental or Additional Rental and Tenant fails to restore
the same as aforesaid, Tenant's failure to restore such security deposit shall
be deemed to be a default in the payment of Additional Rental, for default in
the payment of which Landlord shall have the same remedies as for a default in
the payment of Fixed Rental.
59.2 In the event of a sale or lease of the Building, Landlord shall
have the right to transfer the security to the purchaser, and, to the extent
such funds (or letter of credit, if applicable) are or is actually transferred
by Landlord, Landlord shall thereupon be released by Tenant from all liability
for the return of such security.
59.3 Tenant agrees that it shall not assign or encumber the funds
deposited as security hereunder.
59.4 In lieu of depositing all cash for the security deposit hereunder,
Tenant may deliver cash security in the amount of $70,000 and a clean,
irrevocable and unconditional letter of credit issued by and drawn upon a
commercial bank which is a member of the New York Clearing House Association
(hereinafter referred to as the "Issuing Bank") with offices for banking
purposes in the City of New York and having a net worth of not less than
$100,000,000, which letter of credit shall have a term of not less than one
year, be in form and content satisfactory to Landlord, be for the account of
Landlord, and initially be in the amount of $70,000. If Tenant elects to provide
a letter of credit, the letter of credit shall provide that:
59.4.1 The Issuing Bank shall pay to Landlord or its duly
authorized representative an amount up to the face amount of the letter of
credit upon presentation of the letter of credit and a sight draft in the amount
to be drawn, together with a certificate executed on behalf of Landlord.,
stating that as of the date of such certificate, Tenant is in default under this
Lease beyond any applicable period of notice and/or cure and that the amount
drawn by Landlord represents funds that are due and payable to Landlord under
the Lease;
59.4.2 The letter of credit shall be deemed to be
automatically renewed, without amendment (except as provided below with respect
to reduction in face amount), for consecutive periods of one year each during
the entire term of this Lease (the last such automatic renewal to expire not
earlier than a date which is one (1) month after the expiration date of the term
of this Lease) unless the Issuing Bank sends written notice (hereinafter called
the "Non-Renewal Notice") to Landlord by certified or registered mail, return
receipt requested, not less than thirty (30) days next preceding the then
expiration date of the letter of credit, that it elects not to have such letter
of credit renewed;
59.4.3 Landlord, after receipt of the Non-Renewal, Notice,
shall have the right, exercisable by a sight draft and an affidavit indicating
that Tenant is still obligated under the Lease, to receive the monies
represented by the letter of credit (which monies shall be held as a cash
security deposit pursuant to the provisions of Article 32 and this Article); and
59.4.4 Upon Landlord's sale of the Building, or the transfer
of Landlord's interest therein, or a leasing of the Building, the letter of
credit shall be transferable by Landlord to the purchaser, vendee or transferee,
and all expenses of such transfer shall be paid by Landlord.
60. HOLDOVER.
Tenant expressly waives, for itself and for any person claiming through
or under Tenant, any rights which Tenant or any such person may have under the
provisions of Section 2201 of the New York Civil Practice Law and Rules and of
any similar or successor law of same import then in force, in connection with
any holdover proceedings which Landlord may institute to enforce the provisions
of this Lease. If the Premises are not surrendered upon the termination of this
Lease, Tenant hereby indemnifies Landlord against liability resulting from the
delay by Tenant in so surrendering the Premises, including any claims made by
any succeeding tenant or prospective tenant founded upon such delay. In the
event Tenant remains in possession of the Premises after the termination of
this Lease, without the execution of a new lease, Tenant, at the option of
Landlord, shall be deemed to be occupying the Premises as a tenant from month to
month, at a monthly rental equal to two (2) times the Fixed Rental and
Additional Rental payable during the last month of the term, subject to all of
the other terms of this Lease insofar as the same are applicable to a
month-to-month tenancy. Tenant's obligations under this Paragraph shall survive
the termination of this Lease.
61. APPLICABLE LAW.
This Lease shall be governed in all respects by the laws of the State
of New York. Tenant hereby specifically consents to jurisdiction in the State of
New York in any action or proceeding arising out of this Lease and/or the use
and occupation of the Premises and waives any right to trial by jury and the
right to interpose any counterclaim in any summary proceeding commenced by
Landlord. If Tenant at any time after date of execution hereof or during the
term hereof shall not be a New York partnership or a New York corporation or a
foreign corporation qualified to do business in New York State, Tenant shall
designate in writing an agent in New York County for service under the laws of
the State of New York for the entry of a personal judgment against Tenant.
Tenant, by notice to Landlord, shall have the right to change such agent,
provided that at all times there shall be an agent in New York County for
service. In the event of any revocation by Tenant of such agency, such
revocation shall be void and have no force and effect unless and until a new
agent has been designated for service and Landlord notified to such effect. If
any such agency designation shall require a filing in the office of the Clerk of
the County of New York, same shall be promptly accomplished by Tenant, at its
expense, and a certified copy transmitted to Landlord.
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62. HAZARDOUS MATERIALS.
Tenant shall not cause or permit any Hazardous Materials (hereinafter
defined) to be used, stored, transported, released, handled, produced or
installed in, on or from the Premises or the Building. "Hazardous Materials," as
used herein, shall mean any flammables, explosives, radioactive materials,
hazardous wastes, hazardous and toxic substances or related materials, asbestos
or any material containing asbestos, or any other substance or material as
defined by any federal, state or local environmental law, ordinance, rule or
regulation, including, without limitation, the Comprehensive Environmental
Response Compensation and Liability Act of 1980, as amended, the 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. Landlord represents and warrants to Tenant
that as of the date hereof, Landlord has not received notification of any kind
from any regulatory agency stating, and has no knowledge or belief, that the
Building is targeted for a Hazardous Materials cleanup. Landlord shall be fully
and completely liable for any and all clean-up costs and any and all other
charges, fees and penalties (civil and criminal) imposed by any governmental
authority with respect to the presence, use, disposal, transportation,
generation or sale of Hazardous Materials on the Premises by any person or
entity other than Tenant or Tenant's agents, employees, licensees or
contractors. For the purpose of this provision, "Hazardous Materials" means and
includes any hazardous, toxic or dangerous waste, substance or material defined
as such in (or for purposes of) the Comprehensive Environmental Response and
Liability Act, any so-called "Superfund" or "Superlien" law, or any other
requirement or any governmental authority regulating, relating to, or imposing
liability or standards of conduct concerning, any asbestos, hazardous,
radioactive, toxic or dangerous waste, substance or material as not or at any
time hereafter in effect.
63. NOTICES.
Any notice or demand which, under the terms of this Lease or under any
statute, must or may be given or made by the parties hereto, shall be in
writing, and shall be given or made by mailing the same by certified mail,
return receipt requested, or by personal delivery, addressed to the parties at
their respective addresses herein above mentioned, with a copy of any notice to
Landlord to be delivered simultaneously in the same manner to Landlord's
attorneys, Greenstein Starr Gerstein & Rinaldi LLP, 57 West 38th Street, New
York, New York 10018, Attention: Victor Gerstein, Esq., and with a copy of any
notice to Tenant to be delivered simultaneously in the same manner to Tenant's
attorneys, Donovan & Giannuzzi, 405 Park Avenue, New York, New York 10022,
Attention: Nicholas T. Donovan, Esq. Either party, however, may designate in
writing such new or other address to which such notice or demand shall
thereafter be so given, made or mailed. Any notice given hereunder shall be
deemed delivered on the third (3rd) day after the notice is deposited in a
United States General branch post office, maintained by the United States
Government in the City of New York, enclosed in a certified, prepaid wrapper
addressed as hereinbefore provided, or, if sent by hand, on the date the same is
actually delivered.
64. ADDENDUM TO ARTICLE 16- BANKRUPTCY.
64.1 If Tenant assumes this Lease and proposes to assign the same
pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. 101 et seq. (the
"Bankruptcy Code") to any person or entity who shall have made a bona fide offer
to accept an assignment of this Lease on terms acceptable to Tenant, then notice
of such proposed assignment, setting forth (i) the name and address of such
person, (ii) all of the terms and conditions of such offer, and (iii) the
adequate assurance to be provided Landlord to assure such person's future
performance under the Lease, including, without limitation, the assurance
referred to in Section 365(b)(3) of the Bankruptcy Code, shall be given to
Landlord by Tenant not later than twenty (20) days after receipt by Tenant, but
in no event later than ten (10) days prior to the date that Tenant shall make
application to a court of competent jurisdiction for authority and approval to
enter into such assignment and assumption, and Landlord shall thereupon have the
prior right and option, to be exercised by notice to Tenant given at any time
prior to the effective date of such proposed assignment, to accept an assignment
of this Lease upon the same terms and conditions and for the same consideration,
if any, as the bona fide offer made by such person, less any brokerage
commissions which may be paid by such person for the assignment of this Lease.
64.2 Any person or entity to which this Lease is assigned pursuant to
the provisions of the Bankruptcy Code shall be deemed without further act or
deed to have assumed all of the obligations arising under this Lease on and
after the date of such assignment. Any such assignee shall, upon demand, execute
and deliver to Landlord an instrument confirming such assumption.
64.3 Nothing contained in this Article shall, in any way, constitute a
waiver of the provisions of this Lease relating to assignment. Tenant shall not,
by virtue of this Article, have any further rights relating to assignment other
than those granted in the Bankruptcy Code.
64.4 Notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of Landlord under 'this Lease, whether
or not expressly denominated as rent, shall constitute rent for the purposes of
Section 502(b)(7) of the Bankruptcy Code.
64.5 The term "Tenant," as used in this Article, includes any trustee,
debtor in possession, receiver, custodian or other similar officer.
65. RENT CONTROL.
In the event the Fixed Rental or Additional Rental or any part thereof
provided to be paid by Tenant under the provisions of this Lease during the
demised term shall become uncollectible or shall be reduced or required to be
reduced or refunded by virtue of any federal, state, county or city law, order
or regulation, or by any direction of a public officer or body pursuant to law,
or the orders, rules, code or regulations of any organization or entity formed
pursuant to law, whether such organization or entity be public or private, then
Landlord, at its option, may at any time thereafter terminate this Lease by not
less than thirty (30) days' written notice to Tenant, on a date set forth in
said notice, in which event this Lease and the term hereof shall terminate and
come to an end on the date fixed in said notice as if the said date were the
Expiration Date. Landlord shall not have the right to so terminate this Lease if
Tenant, within such period of thirty (30) days, shall, in writing, lawfully
agree that the rentals herein reserved are a reasonable rental and agrees to
continue to pay said rentals, and if such agreement by Tenant shall then be
legally enforceable by Landlord.
66. REPAIRS.
66.1 Notwithstanding anything contained in Articles 3, 4, 6 or
elsewhere in this Lease, all repairs and other work which Tenant is required to
perform under any provision of this Lease may be performed by Landlord at
Tenant's cost, provided, however, that Tenant shall have ten (10) days' notice
prior to Landlord's undertaking of any non-emergency repair which Landlord
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intends to undertake. Tenant shall be permitted to perform such non-emergency
repair if it diligently pursues the undertaking thereof within such ten (10) day
period. Landlord shall exercise reasonable efforts to minimize any inconvenience
to Tenant or interference with Tenant's use and enjoyment of the Demised
Premises, and Landlord shall carry out such repairs, replacements, improvements
or other work promptly and diligently. Tenant shall pay the cost of such repairs
and other work, as Additional Rental, within ten (10) days after rendition of a
statement therefor by Landlord.
66.2 In addition to Tenant's obligations under Article 4, Tenant, at
its sole cost and expense, shall take good care of the Premises and all
improvements and personal property located therein, including, without
limitation, all furniture, fixtures, machinery, equipment and all other personal
property and stock purchased by Tenant and used in connection with the operation
of its business at the Premises (all of the foregoing being hereinafter
collectively referred to as "Tenant's Property"), and Tenant shall make all
necessary repairs to the Premises and/or Tenant's Property in accordance with
the provisions contained herein, whether ordinary, extraordinary, foreseen, or
unforeseen, provided, however, that Tenant shall not be obligated to make any
repairs to the extent that the same is necessitated by the negligent acts or
omissions of Landlord, its agents, employees or contractors. Nevertheless, any
damage to the Building (including, without limitation, the Premises and the
roof), interior and exterior, arising from or caused by the negligence or
omissions of Tenant (or its agents, servants, employees, invitees or
contractors) shall be the liability of Tenant.
66.3 When used in this Article, the term "repairs" shall include
replacements and substitutions of all property when necessary, of a quality,
class and value at least equal to the property replaced or substituted.
66.4 Anything contained in this Lease to the contrary notwithstanding,
Tenant acknowledges that it shall be Tenant's responsibility to clean, maintain
and repair (subject to applicable legal requirements, including the requirements
of the New York City Landmarks Preservation Commission) the windows and window
frames in the Premises and any and all interior bathrooms within the Premises at
Tenant's sole cost and expense.
66.5 Nothing contained herein shall obligate Tenant to make any
structural repairs to the Premises except if caused by or resulting from the
carelessness, omission, neglect or improper conduct of Tenant, Tenant's
employees, contractors, invitees or licensees. Tenant acknowledges that it shall
be Tenant's responsibility to repair any leaks in the bathrooms or emanating
through the windows in the Premises. The obligation to repair any other leaks in
the pipes servicing the Premises shall be that of Landlord, except if the same
are caused by or resulting from the carelessness, omission, neglect or improper
conduct of Tenant, Tenant's employees, contractors, invitees or licensees.
67. CONDITIONAL LIMITATION.
If Tenant shall default in the payment of the rent reserved herein, or
any items of Additional Rental herein mentioned, or any part of either, during
any two (2) months, whether or not consecutive, in any twelve (12) month period,
and Landlord served upon Tenant petitions and notices of petition to dispossess
Tenant by summary proceedings in each such instance, then, notwithstanding that
such defaults may have been cured prior to the entry of a judgment against
Tenant, any further default in the payment of any moneys due Landlord hereunder
which shall continue for more than ten (10) days shall be deemed to be
deliberate, and Landlord may thereafter serve a written ten (10) days' notice of
cancellation of this Lease, and the term hereunder shall end and expire as
fully and completely as if the expiration of such ten (10) day period were the
day herein definitely fixed for the end and expiration of this Lease and the
term thereof, and Tenant shall then quit and surrender the Premises to Landlord,
but Tenant shall remain liable as elsewhere provided in this Lease.
68. LANDLORD'S SERVICES.
68.1 Landlord shall furnish Tenant with the following services:
68.1.1 Non-exclusive passenger elevator service during regular
hours (that is, between the hours of 8:00 a.m. and 6:00 p.m.) of business days
(which term is used to mean all days except Saturdays, Sundays, those days that
are observed by the State or Federal governments as legal holidays, and those
days designated as holidays by the applicable building service union employees'
contract) through the year ("Regular Hours"). At all other times, Landlord shall
have one elevator subject to call.
27.1.2 Non-exclusive freight elevator service during Regular
Hours (that is, between the hours of 8:00 a.m. and 6:00 p.m.) of business days
(which term is used to mean all days except Saturdays, Sundays, those days that
are observed by the State or Federal governments as legal holidays, and those
days designated as holidays by the applicable building service union employees'
contract) through the year ("Regular Hours"). Use of the freight elevator shall
be arranged by Tenant on not less than twenty-four (24) hours prior notice and
shall be provided by Landlord to the extent that no conflict exists with other
tenants or other parties requesting such usage (all such conflicts to be
resolved by Landlord, in Landlord's sole discretion) and Tenant shall reimburse
Landlord for all costs relating thereto. If Tenant's initial occupancy or
relocation into or out of the Building requires the use of the freight elevator
or other standard services at times other than Regular Hours, Tenant shall
reimburse Landlord for all costs relating to such elevator usage or other
services.
68.2 All waste and garbage shall be removed from the Premises to the
outside of the Building, at Tenant's sole cost and expense, on a daily basis, by
a private sanitation company independently contracted for and paid for by
Tenant. Tenant shall not store any garbage, cartons or inventory outside of the
Premises. Tenant covenants and agrees, at its sole cost and expense, to comply
with all present and future laws, orders and regulations of all state, federal,
municipal and local governmental, 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.
68.3 Landlord reserves the right, without any liability to Tenant
(except as otherwise expressly provided in this Lease), to stop operating any of
the heating, ventilating, electric, sanitary, elevator, or other Building
systems serving the Premises, and to stop the rendition of any of the other
services required of Landlord under this Lease, whenever and for so long as may
be necessary by reason of accidents, emergencies, strikes, or the making of'
repairs or changes that Landlord is required by this Lease or by law to make or
in good faith deems necessary, by reason of difficulty in securing proper
supplies of fuel, steam, water, electricity, labor, or supplies, or by reason of
any other cause beyond Landlord's reasonable control.
69. TENANT'S ALTERATIONS.
69.1 Tenant may, without the consent of Landlord, from time to time
during the term of this lease and at Tenant's sole expense, make such
alterations, additions, installations, substitutions, improvements and
decorations (hereinafter collectively
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called changes and, as applied to changes provided for in this Article, Tenant's
Changes) in and to the Premises, the estimated cost of which does not exceed
$40,000.00 as Tenant may reasonably consider necessary for the conduct of its
business therein, on the following conditions:
69.1.1 the outside appearance or strength of the Building, or
of any of its structural parts, shall not be materially and adversely affected;
69.1.2 no part of the Building outside of the Premises shall
be physically affected;
69.1.3 the proper functioning of any of the mechanical,
electrical, sanitary and other service systems of the Building and/or the
Premises shall not be adversely affected, and the usage of such systems by
Tenant shall not be increased, subject to Tenant's right to upgrade the
electrical capacity servicing the Premises;
69.1.4 before proceeding with any change either costing in
excess of $40,000.00 (exclusive of the costs of decorating work and of any
architect's and engineer's fees), or involving any change to the mechanical,
electrical, sanitary, HVAC and/or other service systems, irrespective of cost,
Tenant shall submit to Landlord, for Landlord's prior approval, plans and
specifications for the work to be done, drawn by a registered architect or duly
licensed engineer. Without limiting the generality of the foregoing, Tenant
shall cause to be prepared all drawings, plans and specifications, and all other
reports, applications and materials, required by the Department of Buildings of
the City of New York, the Department of Labor and any other governmental
authorities having jurisdiction with respect to Tenant's Changes and any permits
and special licenses which may be required for or in connection with Tenant's
Changes or the permitted use. Any and all filings of such drawings, plans,
specifications, reports, applications and other materials with the Department of
Buildings of the City of New York, the Department of Labor and any other
governmental authorities having jurisdiction shall be made solely by Tenant at
Tenant's sole cost and expense. Landlord shall reasonably cooperate with Tenant
in connection with the execution and delivery of documents necessary to obtain
work permits. Nothing herein shall be deemed to, or operate to create any
liability or other obligation on the part of Landlord in the event that any such
filings shall not be approved by the Department of Buildings of the City of New
York or any other governmental authority having jurisdiction, unless caused by
Landlord's failure to reasonably cooperate with Tenant's requests. Landlord may,
as a condition of its consent, require Tenant to reimburse Landlord for
Landlord's out-of-pocket cost for an independent architect or engineer to review
the plans and specifications and make revisions in and to the plans and
specifications.
69.2 Tenant shall, at its expense, obtain all necessary governmental
licenses, permits and certificates for the commencement and prosecution of
Tenant's Changes, and, upon completion, obtain all necessary signoffs and
certificates of acceptance and completion which may be required from such
governmental authorities, and Tenant shall cause Tenant's Changes to be
performed in compliance with such licenses, permits and certificates, as well as
with all applicable laws, codes, ordinances, regulations and requirements of
public authorities (including, without limitation, the New York City Landmarks
Commissions [the "Landmarks Commission"]) and all applicable standards and
requirements of insurance bodies, the New York Board of Fire Underwriters, the
National Electric Code, the Occupational Safety and Health Administration, the
American Society of Heating, Refrigeration and Air Conditioning Engineers,
I.S.O., and any similar or successor bodies thereto, in a good and workmanlike
manner, using new materials and equipment of a quality and class at least equal
to the original installations in the Premises. Tenant's Changes shall be
performed during the hours of 9:00 a.m. to 5:00 p.m. on days other than
Saturdays, Sundays and holidays in such a manner as not to unreasonably
interfere with or delay, and (unless Tenant shall indemnify Landlord therefor to
the latter's reasonable satisfaction) so as not to impose any additional expense
upon Landlord in the maintenance or operation of the Premises, and so as not to
interfere with the safety, use, occupancy, comfort or quiet enjoyment of any
other tenant or occupant of the Building. If Landlord incurs any costs or
expenses in connection with the performance of Tenant's Changes, other than
those set forth in the previous sentence, Tenant shall reimburse Landlord for
the actual costs and expenses incurred by Landlord. Throughout the performance
of Tenant's Changes, Tenant shall, at its expense, carry, or cause to be
carried, builder's risk insurance, insuring against loss from fire, vandalism or
other risks as are customarily covered by a broad-form extended coverage
endorsement on a completed value basis for the full insurable value at all
times, workers' compensation insurance in statutory limits, and general
liability insurance for any occurrence in or about the Building, all as set
forth in, and written by insurance companies described in, Article 54 hereof.
All such insurance policies (other than the workers' compensation) shall name
Landlord and its agents as additional parties insured, and shall be in such
limits as Landlord may reasonably prescribe and be placed with insurers
satisfactory to Landlord. Tenant shall furnish Landlord with satisfactory
evidence that such insurance is in effect at or before the commencement of
Tenant's Changes and, on request, at reasonable intervals thereafter during the
continuance of Tenant's Changes. Tenant shall not cause damage to the Building,
building systems or any personal property of Landlord or any other tenant or
occupant of the Building, and in the event of any such damage will promptly
repair any such damage to Landlord's satisfaction. If any of Tenant's Changes
shall involve the removal of any fixtures, equipment, or other property in the
Premises that are not Tenant's property, such fixtures, equipment, or other
property shall be, upon Landlord's request, stored and preserved, and returned
to Landlord upon the expiration or sooner termination of this lease. All
electrical and plumbing work in connection with Tenant's Changes shall be
performed by contractors or subcontractors licensed therefor by all governmental
agencies having or asserting jurisdiction and satisfactory to Landlord.
69.3 For the purposes of this Article 69, Tenant shall select and use
general contractors and subcontractors, and electrical engineers and plumbers,
from a list of those pre-approved by Landlord. In the event Tenant desires to
use a general contractor or subcontractor, or electrical engineer or plumber,
not on Landlord's list, Tenant shall (a) obtain Landlord's prior written
consent, and (b) pay to Landlord, as Additional Rental, a
supervisory/administrative fee in an amount equal to Ten Percent (10%) of the
"hard" costs of the construction.
69.4 Tenant, at its sole cost and expense, shall: (i) furnish evidence
satisfactory to Landlord that all of Tenant's Changes have been completed and
paid for in full and that any and all liens therefor that have been or might be
filed have been discharged of record (by payment, bond, order of a court of
competent jurisdiction, or otherwise) or waived, and that no security interests
relating thereto are outstanding; (ii) pay Landlord for the cost of any Tenant's
Changes done for Tenant by Landlord, and all other charges due hereunder; (iii)
to the extent not previously provided, furnish to Landlord the insurance and
certificates required by this Lease; and (iv) if an architect has been used,
furnish an affidavit in the form recommended by the American Institute of
Architects from Tenant's registered architect certifying that all work performed
in the Premises is substantially in accordance with the plans and
specifications.
69.5 Tenant shall, at its expense and with diligence and dispatch,
procure the cancellation or discharge of all notices of violation arising from,
or otherwise connected with, Tenant's Changes that shall be issued by the
Department of Buildings of the City of New York, the Landmarks Commission, or
any other public or quasi-public authority having or asserting jurisdiction.
Tenant shall defend, indemnify and save Landlord harmless from and against any
and all notices of violation and mechanic's and other liens filed in connection
with Tenant's Changes, including the liens of any security interest in,
conditional
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sales of, or chattel mortgages upon, any materials, fixtures, or articles so
installed in and constituting part of the Premises, and against all costs,
expenses and liabilities incurred in connection with any such lien, security
interest, conditional sale, or chattel mortgage or any action or proceeding
brought thereon. Tenant, at its expense, shall procure the satisfaction or
discharge of, by bonding, payment or otherwise, all such liens within thirty
(30) days after Landlord makes written demand therefor. Notice is hereby given
that neither Landlord, Landlord's agents, nor any mortgagee shall be liable for
any labor or materials furnished or to be furnished to Tenant upon credit, and
that no mechanic's or other lien for such labor or materials shall attach to or
affect any estate or interest of Landlord, or any mortgagee in and to the
Premises or the Building.
69.6 Tenant agrees that the exercise of its rights pursuant to the
provisions of this Article shall not be done in a manner that would, in the
reasonable judgment of Landlord: (a) create any work stoppage, picketing, labor
disruption, or dispute; or (b) violate the Building's union contracts affecting
the Land and/or Building or Landlord's union and/or service contracts, if any,
affecting the Premises. In the event of the occurrence of any condition
described above arising from Tenant's exercise of any of its rights pursuant to
the provisions of this subparagraph 69.7, Tenant shall, immediately upon notice
from Landlord, cease the manner of exercise of such right giving rise to such
condition. In the event that Tenant fails to cease such manner of exercise of
its rights as aforesaid, Landlord, in addition to any rights available to it
under this lease and pursuant to law, shall have the right to seek an
injunction.
69.7 Any approval or consent by Landlord shall in no way obligate
Landlord in any manner whatsoever in respect to the finished product designed
and/or constructed by Tenant, nor be deemed a representation of warranty of
Landlord as to the adequacy or sufficiency of any matter approved or consented
to for Tenant's purposes or otherwise. Any deficiency in design or construction,
although approved by Landlord, shall be solely the responsibility of Tenant.
69.8 Landlord shall have the right to inspect Tenant's Work at any time
to verify compliance by Tenant with the provisions of this Article.
69.9 Subject to the terms of this Article, Tenant may, at its sole cost
and expense (i) install a heating, ventilation and air conditioning unit, in a
location to be approved by landlord, (ii) install restrooms in accordance with
plans prepared or approved by Landlord and (iii) install additional
telecommunication infrastructures.
70. SUBORDINATION AND ATTORNMENT.
70.1 This Lease and all rights of Tenant hereunder are, and shall be,
subject and subordinate to: (i) all mortgages and building loan agreements,
including leasehold mortgages and spreader and consolidation agreements, which
may now or hereafter affect the Land or the Building (collectively, including
the applicable items set forth in subparagraphs 70.4 and 70.5 below, the
"Superior Mortgage") whether or not the Superior Mortgage shall also cover other
lands or buildings or leases, (ii) each advance made or to be made under the
Superior Mortgage; and (iii) all amendments, modifications, supplements,
renewals, substitutions, refinancings and extensions of the Superior Mortgage
and all spreaders and consolidations of the Superior Mortgage. The provisions
of this Article shall be self-operative and no further instrument of
subordination shall be required. Tenant shall promptly execute and deliver, at
its own expense, any instrument, in recordable form, if requested, that Landlord
or the Superior Mortgagee may reasonably request at any time and from time to
time to evidence such subordination; and if Tenant fails to execute, acknowledge
or deliver any such instrument within fifteen (15) days after request therefor,
Tenant hereby irrevocably constitutes and appoints Landlord as Tenant's
attorney-in-fact, coupled with an interest, to execute, acknowledge and deliver
any such instruments for, and on behalf of, Tenant. The Superior Mortgagee may
elect that this Lease shall be deemed to have priority over such Superior
Mortgage, whether this Lease is dated prior to, or subsequent to, the date of
such Superior Mortgage.
70.2 Landlord shall use its best efforts to obtain from the holder of
any Superior Mortgage an agreement in recordable form between the holder of the
Superior Mortgage and Tenant providing in substance that so long as Tenant shall
not be in default under this lease beyond any period of time given to Tenant to
cure such default and shall be in actual occupancy of the Premises, that the
holder of such Superior Mortgage shall not name or join Tenant as a party
defendant or otherwise in any suit, proceeding or action to enforce, nor will
this Lease be terminated by enforcement of any rights given to such holder of
the Superior Mortgage or its successors or assigns pursuant to the terms,
covenants or conditions contained in the Superior Mortgage (including the
foreclosure of the same) or otherwise disturb the right of Tenant to the quiet
enjoyment of the Premises in the event of the enforcement of the terms of the
Superior Mortgage by such holder (including the foreclosure of the same); except
that to the extent required by law, Tenant may be named in such proceeding so
long as the relief requested does not contravene the provisions of this Section,
Provided Landlord shall have used its best efforts to obtain such agreement,
Landlord shall have no liability to Tenant in the event the holder of a Superior
Mortgage shall fail or refuse to issue the agreement referred to in this Section
or shall fail to comply with the terms and provisions thereof. Tenant shall
join in any agreement issued by the holder of the Superior Mortgage to evidence
its agreement and consent thereto and to any other such terms as may be
reasonably required by the holder of the Superior Mortgage as a condition to its
issuance of such agreement, provided that any such agreement shall not increase
the obligations or reduce the rights of Tenant under this Lease. In connection
with Landlord's attempts to obtain a non-disturbance agreement, Landlord shall
in no event be required to (x) make any payment to the holder of any Superior
Mortgage or incur any expense other than reasonable attorneys' fees in
connection with such holder's review of this Lease and the preparation of such
agreement, or (y) alter any of the terms of any existing or future Superior
Mortgage, or (z) commence any action against any holder of a Superior Mortgage.
70.3 Landlord hereby notifies Tenant that this Lease may not be
cancelled or surrendered, or modified or amended so as to reduce the Rentals,
shorten the term or adversely affect in any other respect, to any material
extent, the rights of Landlord hereunder, and that Landlord may not accept
prepayments of any installments of Fixed Rental or Additional Rental except for
prepayments in the nature of security for the performance of Tenant's
obligations hereunder without the consent of any Superior Mortgagee in each
instance, except that said consent shall not be required for the prosecution of
any action or proceedings against Tenant by reason of a default on the part of
Tenant under the terms of this Lease.
70.4 If, at any time prior to the termination of this Lease, any
Superior Mortgagee or any other person or the successors or assigns of the
foregoing (collectively referred to as "Successor Landlord") shall succeed to
the rights of Landlord under this Lease, Tenant agrees, at the election and upon
request of any such Successor Landlord, to fully and completely attorn to and
recognize any such Successor Landlord, as Tenant's Landlord under this Lease
upon the then executory terms of this Lease, provided such Successor Landlord
shall agree in writing to accept Tenant's attornment. The foregoing provisions
of this subparagraph shall inure to the benefit of any such Successor Landlord,
shall be self-operative upon any such demand, and no further instrument shall be
required to give effect to said provisions. Upon the request of any such
Successor Landlord, Tenant shall execute and deliver, from time to time,
instruments satisfactory to any such Successor Landlord in recordable form, if
requested, to evidence and confirm the foregoing provisions of this
subparagraph, acknowledging such attornment and setting
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forth the terms and conditions of its tenancy. Tenant hereby constitutes and
appoints Landlord attorney-in-fact for Tenant to execute any such instrument,
for and on behalf of Tenant, such appointment being coupled with an interest.
Upon such attornment this Lease shall continue in full force and effect as a
direct Lease between such Successor Landlord and Tenant upon all of the then
executory terms of this Lease except that such Successor Landlord shall not be:
(i) liable for any previous act or omission or negligence of Landlord under this
Lease; (ii) subject to any counterclaim, defense or offset, not expressly
provided for in this Lease and asserted with reasonable promptness, which
theretofore shall have accrued to Tenant against Landlord; (iii) bound by any
previous modification or amendment of this Lease made after the granting of such
senior interest, or by any previous prepayment of more than one month's Fixed
Rental or Additional Rental, unless such modification or prepayment shall have
been approved in writing by any Superior Mortgagee through or by reason of which
the Successor Landlord shall have succeeded to the rights of Landlord under this
Lease; (iv) obligated to repair the Premises or the Building or any part
thereof, in the event of total or substantial damage beyond such repair as can
reasonably be completed with the net proceeds of insurance actually made
available to Successor Landlord, provided all insurance to be maintained by the
Landlord hereunder is thus maintained; or (v) obligated to repair the Premises
or the Building or any part thereof, in the event of partial condemnation beyond
such repair as can reasonably be completed with the net proceeds of any award
actually made available to Successor Landlord, or consequential damages
allocable to the part of the Premises or the Building not taken. Nothing
contained in this subparagraph shall be construed to impair any right otherwise
exercisable by any such Successor Landlord.
70.5 If any act or omission by Landlord would give Tenant the right,
immediately or after lapse of time, to cancel or terminate this Lease or to
claim a partial or total eviction, Tenant will not exercise any such right until
(i) it has given written notice of such act or omission to each Superior
Mortgagee, whose name and address shall have previously been furnished to
Tenant, by delivering notice of such act of omission addressed to each such
party at its last address so furnished, and (ii) a reasonable period for
remedying such act or omission shall have elapsed following such giving of
notice and following the time when such Superior Mortgagee shall have become
entitled under such Superior Mortgage, as the case may be, to remedy the same
(which shall in no event be less than the period to which Landlord would be
entitled under this Lease to effect such remedy) provided such Superior
Mortgagee shall, with reasonable diligence, give Tenant notice of its intention
to remedy such act or omission and shall commence and continue to act upon such
intention.
71. MISCELLANEOUS.
71.1 Tenant hereby agrees to pay, as Additional Rental, all attorneys'
fees and disbursements (and all other court costs or expenses of legal
proceedings) which Landlord may incur or pay out by reason of, or in connection
with:
71.1.1 Any action or proceeding by Landlord to terminate this
Lease for reasonable cause;
71.1.2 Any other action or proceeding by Landlord against
Tenant (including, but not limited to, any arbitration proceeding);
71.1.3 Any action or proceeding brought by Tenant against
Landlord (or any officer, partner or employee of Landlord) in which Tenant fails
to secure a final unappealable judgment against Landlord; and
71.1.4 Any other appearance by Landlord (or any officer,
partner or employee of Landlord) as a witness or otherwise in any action or
proceeding whatsoever involving or affecting Tenant or this Lease.
Tenant's obligations under this Paragraph shall survive the
expiration of the term hereof or any other termination of this Lease. This
Paragraph is intended to supplement, and not to limit, other provisions of this
Lease pertaining to indemnities and/or attorneys' fees.
71.2 If any of the provisions of this Lease, or the application thereof
to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
provision or provisions to persons or circumstances other than those as to whom
or which it is held invalid or unenforceable, shall not be affected thereby, and
every provision of this Lease shall be valid and enforceable to the fullest
extent permitted by law.
71.3 No agreement to accept a surrender of all or any part of the
Premises shall be valid unless in writing and signed by Landlord. The delivery
of keys to an employee of Landlord or of its agent shall not operate as a
termination of this Lease or a surrender of the Premises. If Tenant shall, at
any time, request Landlord to sublet the Premises for Tenant's account, Landlord
or its agent is authorized to receive said keys for such purposes without
releasing Tenant from any of its obligations under this Lease, and Tenant hereby
releases Landlord from any liability for loss or damage to any of Tenant's
property in connection with such subletting.
71.4 The receipt by Landlord of rent with knowledge of breach of any
obligation of this Lease shall not be deemed a waiver of such breach.
71.5 No payment by Tenant, or receipt by Landlord, of a lesser amount
than the correct Fixed Rental or Additional Rental due hereunder shall be deemed
to be other than a payment on account, nor shall any endorsement or statement on
any check or payment be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance or pursue any other remedy in this Lease or at law provided.
71.6 The terms "person" and "persons" as used in this Lease shall be
deemed to include natural persons, firms, corporations, associations and any
other private or public entities.
71.7 If Tenant is in arrears in the payment of Fixed Rental or
Additional Rental, Tenant waives its right, if any, to designate the items in
arrears against which any payments made by Tenant are to be credited, and
Landlord may apply any of such payments to any such items in arrears as
Landlord, in its sole discretion, shall determine, irrespective of any
designation or request by Tenant as to the items against which any such payments
shall be credited.
71.8 The terms "Owner" and "Landlord" as used in this Lease are
interchangeable. The terms "Article" and "Paragraph" as used in this Lease are
interchangeable.
71.9 If Tenant is a corporation, the person executing this Lease on
behalf of Tenant hereby covenants, represents and warrants that Tenant is duly
incorporated and is authorized to do business in New York State and that the
person executing this Lease on behalf of Tenant is an officer of the corporation
authorized to execute this Lease.
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72. LEASE NOT BINDING UNLESS EXECUTED.
Submission by Landlord of this Lease for execution by Tenant shall
confer no rights nor impose any obligations on either party unless and until (i)
Tenant shall have submitted to Landlord (a) at least four copies of this Lease
to Landlord, duly executed by or on behalf of Tenant (and in the case that
Tenant is a corporation, Tenant shall submit to Landlord a duly executed
resolution of Tenant's board of directors authorizing this Lease), (b) separate
checks payable to the direct order of Landlord on a bank account in Tenant's
name in the amount of the first monthly installment of Fixed Rental payable upon
the execution of this Lease and the security deposit, (c) a certificate of
insurance in form required in this Lease and (d) any other deliveries
specifically called for under this Lease to be submitted to Landlord on or prior
to the commencement date of the Term and (ii) Landlord shall have countersigned
this Lease and duplicate originals thereof shall have been delivered by Landlord
to Tenant. In the event Landlord countersigns and delivers this Lease to Tenant
at a time when any of the aforementioned deliveries have not been received by
Landlord or are not in proper form, this Lease shall be effective, but Tenant
shall remain obligated to provide such deliveries, the same not being waived by
Landlord, unless Landlord specifically waives receipt of the same in writing.
73. SUBMISSION TO JURISDICTION.
This Lease shall be deemed to have been made in New York County, City
and State of New York, and shall be construed in accordance with the laws of the
State of New York. All actions or proceedings relating, directly or indirectly,
to this Lease, shall be litigated only in courts located within the County of
New York. Tenant, any guarantor of the performance of its obligations hereunder,
and their successors and assigns, hereby subject themselves to the jurisdiction
of any state or federal court located within such county, waive personal service
of any process upon them in any action or proceeding therein, and consent that
such process be served by certified or registered mail, return receipt
requested, directed to the Tenant and any successor at Tenant's address herein
above set forth, or to Guarantor and any successor at the address set forth in
the instrument of guaranty and to any assignee at the address set forth in the
instrument of assignment. Such service shall be deemed made three (3) days after
such process is so mailed.
74. QUALIFICATIONS AS TO USE.
Tenant shall not suffer or permit the Premises or any part thereof to
be used in any manner or anything to be done therein, or suffer or permit
anything to be brought into or kept therein, which would in any way, (i) violate
any of the provisions of any Superior Mortgage or Superior Lease, or the
requirements of public authorities, (ii) make void or voidable any fire or
liability insurance policy, then in force with respect to the Building; (iii)
make unobtainable from reputable insurance companies authorized to do business
in the State of New York any fire insurance with extended coverage, or
liability, elevator, boiler, or other insurance required o be furnished by
Landlord under the terms of any Superior Mortgage or Superior Lease at standard
rates, if obtainable at such rates prior to the execution and delivery of this
Lease; (iv) cause or in Landlord's reasonable opinion be likely to cause
physical damage to the Building or any part thereof; (v) constitute a public or
private nuisance or otherwise violate any law relating to the protection of the
environment or requiring manufacture, treatment or disposal of any material used
by Tenant at the Premises in any particular manner; (vi) impair, in the sole
opinion of Landlord, the appearance, character or reputation of the Building;
(vii) discharge objectionable fumes, vapors or odors into the Building air
conditioning system or into the Building flues or vents not designed to receive
them or otherwise in a manner as may offend other tenants or occupants of the
Building; (viii) impair or interfere with any of the Building services or the
proper and economic heating, cleaning, air conditioning or other servicing of
the Building or the Premises, or impair or interfere with or tend to impair or
interfere with the use of any of the other areas of the Building by, or occasion
discomfort, annoyance or inconvenience to, Landlord or any of the other tenants
or occupants of the Building, any such impairment or interference to be in the
sole judgment of Landlord; (ix) violate any provision of law pursuant to which
Landlord may incur civil or criminal liability as a result of Tenant's action,
including, without limitation, civil or criminal forfeiture, padlocking or other
restraint of the Premises or the Building by governmental authority; (x)
increase the pedestrian traffic in and out of the Premises and/or the Building
above an ordinary level or (xi.) engage in the sale of any product from the
Premises or the Building in violation of 15 U.S.C.A. Section 1051 et seq. or any
similar federal or state law. Landlord shall not be liable for the violation by
any tenant or other party of the rules and regulations of the Building or for
such other party's breach of its lease.
75. PARTNERSHIP TENANT.
If Tenant is a partnership (or is comprised of two [2] or more persons,
individually and as co-partners of a partnership), or if Tenant's interest in
this Lease shall be assigned to a partnership (or to two [2] or more persons,
individually and as co-partners of a partnership) pursuant to Article 51 (any
such partnership and such persons are referred to in this Article as
"Partnership Tenant"), the following provisions of this Article shall apply to
such Partnership Tenant: (i) the liability of each of the parties comprising
Partnership Tenant shall be joint and several, and (ii) each of the parties
comprising Partnership Tenant hereby consents in advance to, and agrees to be
bound by, any written instrument which may hereafter be executed, changing,
modifying or discharging this Lease, in whole or in part, or surrendering all or
any part of the Premises to Landlord, and by any notices, demands, requests or
other communications which may hereafter be given by Partnership Tenant or by
any of the parties comprising Partnership Tenant, and (iii) any bills,
statements, notices, demands, requests or other communications given or rendered
to Partnership Tenant and all such parties shall be binding upon Partnership
Tenant and all such parties, and (iv) if Partnership Tenant shall admit new
partners, all of such new partners shall, by their admission to Partnership
Tenant, be deemed to have assumed performance of all of the terms, covenants
and conditions of this Lease on Tenant's part to be observed and performed, and
(v) Partnership Tenant shall give prompt notice to Landlord of the admission of
any such new partners, and upon demand of Landlord, shall cause each such new
partner to execute and deliver to Landlord an agreement in form satisfactory to
Landlord, wherein each such new partner shall assume performance of all the
terms, covenants and conditions of this Lease on Tenant's part to be observed
and performed (but neither Landlord's failure to request any such agreement nor
the failure of any such new partner to execute or deliver any such agreement to
Landlord shall vitiate the provisions of subdivision (iv) of this Article).
76. CERTIFICATE OF OCCUPANCY.
Tenant shall not at any time use or occupy the Premises in violation of
the Certificate of Occupancy issued for the Premises or for the Building, and in
the event that any department of the City or State of New York shall hereafter
at any time contend and/or declare by notice, violation, order or in any other
manner whatsoever that the Premises are used for a purpose which is a violation
of such Certificate of Occupancy, Tenant shall, upon ten (10) days' written
notice from Landlord, immediately discontinue such use of the Premises. Failure
by Tenant to discontinue such use after such notice shall be considered a
default in the fulfillment of a covenant of this Lease, and Landlord shall have
the right to terminate this Lease immediately, and in addition thereto shall
have the right to exercise any and all rights and privileges and remedies given
to Landlord by and pursuant to the provisions of Articles 17 and 18 hereof.
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77. ACCESS TO PREMISES
Tenant understands and agrees that all parts (except surfaces facing
the interior of the Premises) of all walls, windows and doors bounding the
Premises (including exterior Building walls, core corridor walls, doors and
entrances), all balconies, terraces and roofs adjacent. to the Premises, all
space in or adjacent to the Premises used for shafts, stacks, stairways, chutes,
pipes, conduits, ducts, fan rooms, heating, air cooling, plumbing and other
mechanical facilities, service closets and other Building facilities are not
part of the Premises, and Landlord shall have the use thereof, as well as access
thereto, subject to Article 13 of this Lease, through the Premises for the
purposes of operation, maintenance, alteration and repair.
78. USE OF PREMISES.
Supplementing Article 2, under no circumstances whatsoever shall the
Premises or any part thereof be used: (1) as a multiple tenancy; (2) by a
foreign or domestic governmental agency; (3) as a betting parlor or gambling
casino; (4) by a utility company; (5) as a restaurant, luncheonette or coffee
shop; (6) for the on-premises or off-premises sale of alcoholic beverages or as
a catering or events facility; (7) for the sale of candy or cigarettes; (8) as
an amusement arcade or for use of video games, pinball machines or other
customer-attracting devices; (9) for the playing of amplified music, for live
entertainment, for dancing or as a discotheque or club; (10) for the sale,
display or rental of "adult" or pornographic books, magazines or videos; (11) as
a medical, psychiatric, abortion, drug or alcohol clinic; (12) as an employment
agency or search firm; (13) for retail, manufacturing or residential use; and/or
(14) for any use other than the use set forth in Article 2.
79. EXCLUSION OF PERSONS FROM PREMISE AND DELIVERY SYSTEMS.
Landlord reserves the right to exclude from all portions of the
Building at any time or times during the term hereof, all messengers, couriers
and delivery people other than those who are employees of Tenant. In such event
Landlord shall accept on behalf of Tenant all deliveries of mail, air courier
packages, express packages and other packages sent by similar means (including
any hand deliveries of such mail and packages), shall permit messengers and
couriers to pick up mail or packages left by Tenant, and shall provide an area
to be used for such purposes to which Tenant's employees shall deliver mail and
packages to be picked up by others and from which such employees shall pick up
and distribute mail and packages to be delivered to Tenant, provided, however,
that Landlord may elect to provide such distribution to Tenant at Tenant's
expense. Tenant shall comply with Landlord's rules relating to such area and
services. Neither Landlord nor Landlord's agents or security personnel shall be
liable to Tenant or Tenant's agents, employees, contractors, customers, clients,
invitees or licensees or to any other person for, and Tenant hereby indemnifies
Landlord and Landlord's agents and security personnel against, liability in
connection with or arising out of damage to mail or packages, or the performance
or non-performance by Landlord or any person acting by, through or under the
direction of Landlord of the services set forth in this Paragraph (including any
liability in respect of the property of such persons), unless due to the gross
negligence or willful misconduct of Landlord or Landlord's agents or security
personnel. No representation, guaranty or warranty is made or assurance given
that the communications or security systems, devices or procedures of the
Building will be effective to prevent injury to Tenant or any other person or
damage to, or loss (by theft or otherwise) of, any property of Tenant or of any
other person, and Landlord reserves the right to discontinue or modify at any
time such communications or security systems or procedure without liability to
Tenant.
80. ADDENDUM TO RULES AND REGULATIONS.
The following additional Rules and Regulations are hereby incorporated
into and made a part of the Rules and Regulations set forth at the end of the
printed form of the Lease:
80.1 Fire exits and stairways are for emergency use only, and they
shall not be used for any other purpose by Tenant or Tenant's employees,
licensees or invitees. Landlord reserves the right to control and operate the
public portions of the Building and the public facilities, as well as facilities
furnished for the common use of the tenants, in such manner as it deems best for
the benefit of the tenants generally.
80.2 Notwithstanding anything provided to the contrary in this Lease,
Tenant shall not cause any machinery, equipment, sign, banner, or any other
thing to protrude from the Premises to the exterior of the Building beyond the
horizontal plane of the exterior windows of the Premises or beyond the Premises
within the interior of the Building.
80.3 Attached hereto as Exhibit C is a copy of additional Rules and
Regulations for the Building.
81. SCAFFOLDING.
In the event Landlord shall desire (or becomes obligated) to modify
portions of the Building or to alter or renovate the same or clean, repair or
waterproof the Building's facade (whether at Landlord's option or to comply with
law), Landlord may erect scaffolding, "bridges" and other temporary structures
to accomplish the same, notwithstanding that such structures may obscure signs
or windows forming a part of the Premises, and notwithstanding that access to
portions of the Premises may be temporarily diverted or partially obstructed,
provided, however, that Landlord agrees to use reasonable efforts to minimize
impairment of access to the Premises. Landlord shall not be liable to Tenant or
any party claiming through Tenant for loss of business or other consequential
damages arising out of any change in the Building or temporary diversion or
partial obstruction resulting from such alteration, renovation, repair or
cleaning, out of the foregoing structures, or out of any noise, dust and debris
from the performance of work in connection therewith, nor out of the disruption
of Tenant's business or access to the Premises necessary to perform such
repairs, nor shall any matter arising out of any of the foregoing be deemed a
breach of Landlord's covenant of quiet enjoyment or entitle Tenant to any
abatement of rent.
82. TENANT'S CANCELLATION OPTION:
Provided that Tenant is not then in default in respect of all of its
material obligations hereunder, Tenant shall have the one-time option (the
"Termination Option") to cancel this Lease effective as of March 31, 2005 (the
"Option Termination Date") exercisable by Tenant's giving irrevocable written
notice ("Tenant's Notice") to Landlord of Tenant's exercise on or before
December 1, 2004 (time being of the essence as to Tenant's obligation to give
Tenant's Notice by such date). If Tenant duly and timely serves the Termination
Notice and on the further condition that (i) Tenant shall pay to Landlord when
due Fixed Rental and Additional Rental through the Option Termination, (ii)
Tenant shall pay to Landlord in certified or bank funds the sum of $70,000.00,
and (iii) Tenant shall surrender vacant and broom-clean possession of the
Premises to Landlord on the Option Termination Date in accordance with the
provisions of this Lease, free and clear of all tenancies, subtenancies and
occupancy rights, then this Lease shall cease and expire on the Option
Termination Date with the same force and effect as if the Option
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Termination Date were the Termination Date. After delivery of Tenant's Notice,
Landlord shall not be obligated to thereafter offer to Tenant the right to lease
the Other Space.
83. ACCOMMODATION RIGHT OF FIRST OFFER.
Provided this Lease is in full force and effect and Tenant is not in
material default in respect of its obligations hereunder after notice and beyond
any applicable period of grace, if at any time Landlord determines that space on
the ninth (or seventh if landlord exercises its option under Article 84 below)
floor of the Building (the "Other Space") will be offered for lease, Landlord
shall send a notice to Tenant specifying the rent at which and the other terms
and conditions upon which the Other Space is being offered. Tenant shall then
have the right, exercisable within thirty (30) days after the date of Landlord's
notice, to notify Landlord in writing of Tenant's desire to lease the Other
Space for the rent and on the other terms and conditions set forth in Landlord's
notice, in which event Landlord and Tenant shall promptly execute a lease (or a
modification of this Lease) for such space at the rent and other terms and
conditions specified in Landlord's notice. In the event Tenant fails to exercise
its option for the space specified in the notice, within such thirty (30) day
period, or if Tenant exercises such option within such thirty (30) day period
but Landlord and Tenant have not entered into a lease (or a modification of this
Lease) within thirty (30) days after the date of Tenant's notice of exercise
because of Tenant's unwillingness or failure so to do, then Landlord shall
thereafter be free to lease the Other Space to any third party at such rent and
upon such conditions as Landlord may determine in its sole discretion.
84. THE PREMISES.
Landlord shall have the right, in its sole discretion, to substitute
the Demised Premises for a space on the seventh floor of the northeast portion
of the Building, which right Landlord shall exercise by written notice delivered
to Tenant within thirty (30) days of the date of this Lease, time being of the
essence, provided, however, that Landlord fulfills the following obligations:
84.1 the Alternate Space shall be substantially the same size and
quality of the Demised Premises set forth on Exhibit A, and Landlord otherwise
complies with the terms of this Lease;
84.2 the Alternate Space is delivered to Tenant in the manner, and on
the date, set forth in this Lease;
84.3 the Base Rent payable by Tenant shall be reduced by $1.00 per
rentable square foot of the Alternate Space throughout the Term of the Lease;
and
84.4 all of the remaining terms and conditions of this Lease shall
apply to the Alternate Space.
85. LANDLORD'S WORK TO COMMON AREAS
85.1 Landlord shall complete the following work to the common areas of
the Building within twenty-four (24) months from the date of this Lease:
85.1.1 Build a new common corridor on the 9th Floor by April 30, 1999;
85.1.2 Renovate the lobby of the Building by July 30, 2001; and
85.1.3 Install new elevators serving the 9th Floor by July 30, 2001.
85.2 In the event any of the above listed items of work is not
substantially completed within six (6) months of the respective dates set forth
in Section 85.1 (except 'for the work described in Section 85.1.1, which
abatement will commence on the date which is two (2) months after April 1,
1999), then Tenant shall be entitled to an abatement against its obligation to
pay Fixed Rent only for the item of work not so completed, in an amount equal to
five percent (5%) of the Fixed Rent (prorated on a daily basis). Each abatement
(to the extent Tenant is entitled to same) shall commence on the date which is
six months after the date by which the item of work was to have been completed
(except for the work described in Section 85.1.1, which abatement will commence
on the date which is two (2) months after April 1, 1999) and shall terminate on
the date the work is substantially completed, as determined by Landlord. In no
event (i) shall Tenant be entitled to an abatement greater than fifteen percent
(15%) of the Fixed Rental or (ii) shall Tenant be entitled to an abatement for
any item of work if it is completed within six (6) months of the date provided
in 85.1 above.
86. TENANT ACCESS TO BUILDING CONDUIT
To the extent present in the Building, and to the extent accessible
from the Premises, and provided Tenant and Landlord do not incur any costs in
connection therewith, Landlord shall permit Tenant to have access for the
purpose of connecting to the fiber optic lines and copper telecommunications
lines in the Building. Tenant shall obtain all necessary consents from Bell
Atlantic for the connection to the lines, and Landlord shall not charge Tenant a
usage fee for use of the lines.
LANDLORD
601 WEST ASSOCIATES, LLC
BY: SLB MANAGER, LLC
BY: /s/ SLB MANAGER, LLC
--------------------
Name:
Title:
TENANT:
SCREAMINGMEDIA.NET, INC.,
BY: /s/ Alan S. Ellman
--------------------
Name: Alan S. Ellman
Title: President
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EXHIBIT A
DESCRIPTION OF PREMISES
[This drawing of the Premises is only an approximation of the space demised, and
Landlord makes no representation that the dimensions indicated on this drawing
are the actual dimensions of the Premises.]
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EXHIBIT B
TO LEASE BETWEEN
601 WEST ASSOCIATES, LLC, AS LANDLORD,
AND SCREAMINGMEDIA.NET, INC., AS TENANT
LANDLORD'S WORK
1. Paint entire Premises.
2. Acid clean all windows and paint all window frames.
3. Repair, re-putty or replace any damaged window panes.
4. Erect demising wall or walls necessary to create the Premises in
"shell" condition.
5. Install a heating, ventilation and air conditioning unit to serve the
Premises. Tenant shall be responsible and shall pay for the
installation of ductwork.
6. Provide electric lines to connection point of the Premises.
7. Provide 300 amps of electricity servicing the Premises to the
connection point thereof.
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EXHIBIT C
ADDITIONAL RULES & REGULATIONS OF BUILDING
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STARRETT LEHIGH BUILDING
601 West 26th Street
New York, New York 10001
------------------------
SUPPLEMENTAL RULES AND REGULATIONS
PURSUANT TO LEASE ARTICLE 36
Note: The following constitute SUPPLEMENTAL RULES AND REGULATIONS (collectively
"SUPPLEMENTAL Rules ") pursuant to Article 36 of each Tenant's lease ("Lease").
These SUPPLEMENTAL RULES are in addition to Rules and Regulations 1 through 13,
which are set forth on the Lease form itself, and are intended to and shall
remain in full force and effect notwithstanding the promulgation of these
SUPPLEMENTAL RULES.
14. No Tenant shall sponsor or hold an Event (as hereinafter defined)
in the Building without (i) the express prior written consent of the Owner, (ii)
the payment, in advance, of any and all expenses, costs and fees specified by
the Owner in connection therewith, and (iii) otherwise in conformity with these
SUPPLEMENTAL RULES. As used in these SUPPLEMENTAL RULES, the term "Event" shall
include a show, party, reception, or other gathering of people, held solely in
accordance with the "use" clause for Tenant's premises as set forth in Tenant's
lease, which has been consented to by Owner in accordance herewith, at which any
of the following occur: invitations are issued; the Event is the subject of
pre-Event publicity in trade or general news media; music or any other form of
entertainment is presented; a sound system is employed; food and/or liquor is
served, or more than fifty (50) people are present. Any request for Owner's
consent to an Event shall be on such form(s) and accompanied by such
documentation establishing compliance with these SUPPLEMENTAL RULES and
applicable provisions of law as Owner may from time-to-time prescribe or
require.
15. No Tenant shall sponsor or hold an Event in the Building (A) which
is not permitted under the Certificate of Occupancy for the Building or is
otherwise in violation of any applicable law, and (B) without first obtaining
(i) a Temporary Place of Assembly Permit from The New York City Department of
Buildings, and (ii) a Temporary On-Premises Liquor or Caterer's License from the
New York State Liquor Authority. Any prior written consent of the Owner to any
proposed Event shall be deemed conditioned upon Tenant obtaining such Temporary
Place of Assembly Permit and Temporary On-Premises Liquor License, and
compliance by Tenant in all other respects with all applicable provisions of law
and these SUPPLEMENTAL RULES.
16. An Event shall be held only in the space demised to the Tenant
under the Lease or in such other space within the Building, if any, as may be
expressly designated by Owner in writing. Ingress and egress to/from the
Building for an Event shall only be through the main entrance/exit to/from the
Building and common areas (such as the lobby, passenger elevator, and directly
connecting hallways), or such other entrance/exit and interior portions of the
Building, if any, as may be expressly designated by Owner.
17. Owner may condition consent to an Event upon the Event being
attended by a maximum number of people fixed by Owner, fewer than the maximum
number permitted by law.
18. No Event shall be held or sponsored by a Tenant which in army way,
shape, manner or form (A) constitutes a nuisance or danger of any kind, (B)
gives rise to a hazardous condition of any kind, or (C) violates Temporary Place
of Assemble Permit, the Temporary On-Premises Liquor or Caterer's License, the
New York City Building Code, the New York City Fire Code, the New York Alcoholic
Beverage Control Law, the New York Penal Law, or any other applicable provision
of law. Without in any way limiting the generality of the foregoing, no Tenant
shall: (i) invite or permit a greater number of people to attend an Event than
the greatest number permitted under (a) the Temporary Place of Assembly Permit
or any other applicable provision of law, and without (b) the Owner's consent;
(ii) hold or sponsor an Event which includes the use of open flames to cook
food, or for any other purpose; nor (iii) hold or sponsor an Event which (a)
involves the playing of music (whether live or produced or broadcast through any
medium) on weekdays, prior to 9:00 A.M. or after 6:00 P.M., or on weekends and
legal holidays, prior to 9:00 A.M. or after 6:00 P.M., (b) results in loud or
offensive noises of any kind; and (c) involves or results in the illegal use of
sale of controlled substances or the illegal serving of alcohol to minors within
the Building
19. Any Tenant holding or sponsoring an Event in the Building shall be
responsible for all clean-up and restoration to pre-Event condition of all
Building common areas used for the Event. Such clean-up and restoration shall be
completed with three (3) hours after the conclusion of the Event, but in no case
later than 8:00 A.M. the following morning.
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20. An Event may be attended only by Tenant's employees, independent
contractors and invitees. Tenant shall not suffer or permit any of its invitees
to trespass into areas of the Building in which the Event is not being held or
which are not designated by the Owner for ingress/egress to/from the Event. Any
Tenant holding or sponsoring an Event in the Building shall arrange for an
adequate number of professional licensed Security personnel to be continuously
present at the Building, from no later than one (1) hour prior to the scheduled
starting time of the Event; to no earlier than one (1) hour after the scheduled
ending time of the Event, for the purposes of limiting attendance to Tenant's
employees, independent contractors and invitees, preventing trespassing, crowd
control, and to insure compliance with these SUPPLEMENTAL RULES and applicable
law. Such arrangements shall include (A) one security guard at each
entrance/exit to the Building to be utilized in connection with the Event, one
(1) security guard stationed at the Event itself; and one (1) security guard to
patrol the elevator and hallways to be used in connection with the Event, and
(B) such additional number of security personnel as shall be appropriate taking
into account the nature of the Event, the number of invitees, the extent of
Event publicity and any and all other relevant circumstances.
21. No Tenant holding or sponsoring an Event in the Building shall use
the words "Starrett," "Lehigh" or "Starrett-Lehigh" (or any abbreviation or
variation thereof) on any invitation to, or publicity for, or advertisement of,
such Event without the express prior written consent of the Owner.
22. No Tenant shall hold or sponsor an Event in the Building without
first obtaining and delivering to Owner a Certificate of Insurance (or other
proof of insurance acceptable to Owner) with respect to such Event, naming Owner
as an additional insured thereunder and otherwise acceptable to Owner in form
and substance, and with such coverage limits as Owner determines to be
acceptable taking into account the nature of the Event, the number of invitees,
the extent of pre-Event publicity and any and all other relevant circumstances.
23. Any Tenant who holds or sponsors an Event in the Building shall be
fully responsible for any and all injury or damages caused by, or arising out of
or in connection with, the Event, including but not limited to personal injury
and property damage. In the case of physical damage to the Building, other than
damage in the premises demised to Tenant under the Lease, Owner shall have the
exclusive right (but not the obligation) to have such damage repaired, in which
case Tenant shall pay or reimburse Owner for the cost of such repair(s) within
three (3) business days of demand therefor accompanied by a copy of the bill for
the repair(s). No Tenant shall hold or sponsor an Event in the Building without
first executing and delivering to Owner a duly executed waiver, release and
indemnity and hold harmless agreement, in a form acceptable to Owner, providing
that Tenant waives and releases Owner with respect to, and agrees to indemnify,
defend and hold Owner free and harmless from and against any and all costs,
demands, claims, suits, actions, proceedings, orders, judgments, writs, decrees,
forfeitures, subpoenas, warrants, and the like, arising out of or in connection
with the Event (collectively "Claims"), including but not limited to demands for
the payment of principal sums, interest and penalties, and including but not
limited to the legal expenses incurred by Owner (including legal fees, costs,
disbursements, and expenses) in enforcing rights against Tenant or defending
against any such Claim through counsel of Owner's choice.
24. No Tenant shall hold or sponsor an Event in the Building without
first delivering to Owner, in a form acceptable to Owner, a duly executed and
acknowledged statement that violation of these SUPPLEMENTAL RULES shall be
deemed a material breach of the Lease.
25. No noise or other activity, including the playing of musical
instruments, radio, television or other sound reproduction system, which would,
in Owner's judgment, disturb other tenants in the Building, shall be made or
permitted by Tenant.
26. The Owner may refuse admission to the Building outside of ordinary
business hours (8:00 A.M. to 6:00 P.M.) to any person not having a pass issued
by the Owner or not properly identified, and may require all persons admitted to
or leaving the Building, outside of ordinary business hours, to register.
27. All entrance doors in Tenant's demised premises shall be left
locked by Tenant when the demised premises are not in use. Entrance doors shall
be kept closed at all times.
28. All locks affording access to Tenant's demised premises and to
circulation within the demised premises shall be conformed to Owner's master key
system.
29. The requirements of Tenant will be attended to only upon
application to the Building Superintendent at his office in the Building.
Building employees shall not be requested by Tenant, and will not be permitted,
to perform any work or services specifically for Tenant, unless expressly
authorized to do so by the Building Superintendent.
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30. Tenant shall not at any time store or keep any material, supplies,
furniture, furnishings or equipment of any kind in any machine room or in any
mechanical or electrical equipment room in the Building whether such room be
within or outside the demised premises.
31. Owner may charge Tenant for changes to the Building's
directory(ies) subsequent to the initial listings. All requests for directory
listings shall be in writing on Tenant's letterhead signed by an authorized
officer of Tenant.
32. In no event and under no circumstances shall freight, furniture,
business equipment and bulky matters of any description be brought into or used
in any passenger elevators in the Building, it being understood that such items
shall be moved into and, out of the Building and between floors therein only on
the freight elevator and otherwise in accordance with other applicable Rules.
33. All Tenant's employees, will be issued Building ID cards.
Replacement cards are $10.00 each. Cards can be obtained at the Building
Manager's office during regular office hours. All cards will be numbered and
controlled by the Building Manager.
34. Effective 9:00 A.M., November 23, 1998, loading dock and freight
elevator hours are from 8:00 A.M. to 6:00 P.M., Monday through Friday. The use
of a freight elevator at any other time shall be subject to Owner's prior
written consent and shall be conditioned Upon payment of overtime charges
therefor at such hourly rate and minimum hours as Owner may specify.
35. Effective January 1, 1999:
(a) All major deliveries must be coordinated with the Building
Manager to insure proper handling.
(b) No messengers or deliveries of any kind will be allowed
beyond the Concierge Desk at the main Building entrance on 26th Street during
Off hours. The Tenant will be notified of the delivery and must come to the
lobby and accept or refuse the package.
(c) All messengers must register in the Lobby at the Building
Entrance on 26th Street prior to making delivery to Tenant.
(d) Hand trucks and luggage carriers must only use freight
elevator.
(e) No equipment, furniture, typewriters, etc. may be removed
from the Building at any time unless a pass authorizing such removal has been
signed by the Tenant's authorized officer. Passes may be in the form of written
authorization on Tenant's letterhead and signed by an authorized official or on
a Building pass.
(f) Trucks entering the Building or using the freight elevator
shall be limited to a maximum length of twenty (20) feet bumper-to-bumper.
36. At no time shall animals be brought or kept in the
Building.
37. At no time shall bicycles be brought or kept in the
Building, nor shall roller blades and/or roller skates be used in any portion of
the Building.
38. No smoking shall be allowed in any public areas of this
Building.
39. Owner reserves the right to rescind, alter, waive, expand
or add any rule or regulation at any time prescribed for the Building when, in
its judgment, it deems it necessary, desirable or proper for its best interest
and for the best interests of the tenants thereof, and no alteration or waiver
of any rule or regulation in favor of one tenant shall operate as an alteration
or waiver in favor of any other tenant. Owner shall not be responsible to Tenant
for the non-observance or violation by any other tenant of any of' the rules and
regulations at any time prescribed for the Building.
40. If attendance of Owner's personnel and/or service
contractors shall be required, as determined by Owner in its sole discretion, in
connection with the use by Tenant of freight elevators or other Building
services or equipment, Tenant shall pay to Owner on demand, as additional rent,
such amount as Owner shall determine to be appropriate as a charge for Owner's
personnel and/or service contractors but there shall be no charge for Tenant's
initial move into the Building.
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41. These SUPPLEMENTAL RULES shall be effective on the date
hereof.
Dated: New York, New York
November 20, 1998
601 WEST ASSOCIATES LLC, OWNER
601 West 26th Street
New York, New York 10001
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The City of New York
DEPARTMENT OF BUILDINGS
Executive Offices
60 Hudson Street, New York 10013\
SATISH K. BABBAR, R.A.
Assistant Commissioner
Technical Affairs
(212) 312-8324
--------------------------
TECHNICAL
POLICY AND PROCEDURE NOTICE #7/96
--------------------------
TO Distribution
FROM: Satish K. Babbar, R.A.
Assistant Commissioner
DATE: June 24, 1996
SUBJECT: Temporary Places of Assembly
EFFECTIVE: immediately
PURPOSE: To establish uniform requirements for the issuance of a letter
of acceptance to have a temporary place assembly.
SPECIFICS: The following procedure shall be implemented:
I. The applicant, a Professional Engineer or Registered Architect
(P.E./RA), should submit a request letter for a Temporary Place of
Assembly permit at least ten (10) business days in advance of the
planned event at the respective borough office. A request received less
than three (3) business days prior to the event cannot be assured
review and acceptance.
The following documents shall be submitted:
A. The request letter shall be filed in the Borough
Commissioner's Office and include: event description,
date(s), time(s), place of event, maximum occupancy
and owner's authorization for the use of the
premises.
B. Plans in triplicate, which shall include:
1. Seal & signature of the P.E./R.A.
2. Layout details showing seating, aisles,
travel distances, exits, etc.
3. Construction details for tent(s),
bleacher(s), booth(s), stage(s),
structure(s), etc. (DOB application for
construction shall also be filed in this
case).
4. Fire protection to be available at the
premises, such as sprinklers, standpipes,
hand fire extinguishers, and location of
nearest fire hydrants.
5. Emergency measures such as emergency
lighting, emergency generator, fire alarm
system, etc.
6. Parking area location and layout, when
necessary.
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7. Sanitary facilities unless waived by the
Borough Commissioner.
8. Provisions for access to and use of the
premises by people with physical
disabilities.
C. A description of the safety measures to be provided
for review by the Borough Commissioner:
1. F.D. N.Y. Certified Fire Guards
2. Communication lines to be made available
during the event to the Fire and Police
Departments.
D. A Signed and Sealed Statement by the P.E.-R.A.
ensuring that the premises will be in accordance with
the accepted plans.
E. Controlled Inspections, where required by the Borough
Commissioner must be hand delivered or faxed to the
Department during business hours prior to the event.
II. The Borough Office shall:
A. Charge a fee of two hundred fifty dollars ($250) For
processing of the request received at least ten (10) business
days prior to the scheduled event. Additional charge of one
hundred dollars ($100) per day will be due for each day that
the request letter is received less than the ten (10) business
days prior to the event.
B. For a major event, through the Chief Plan Examiner or higher
level staff consult the Fire arid Police Departments and other
emergency services prior to acceptance, as appropriate.
C. Retain the original documents filed.
D. Return two copies of the accepted documents to the P.E./R.A.,
of which one copy shall be made available at the site before
and during the event for consultation by the appropriate
authorities.
E. Fax copies of the acceptance letter to the:
1. Local police precinct and firehouse.
2. Emergency Response Team
60 Hudson Street, 14th Floor
Attn.: James O'Malley
(212) 312-8013 - Fax (212) 312-8012
3. New York City Police Department
One Police Plaza
Operations Division, 8th Floor
New York, New York 10038
Attn.: Inspector Thomas Mullen, Commanding Officer
(212) 374-5500 Fax (212) 374-3840
(for events with over 500 people)
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STARRETT LEHIGH BUILDING EVENT APPROVAL APPLICATION
TO: 601 WEST ASSOCIATES, LLC
PURSUANT TO THE SUPPLEMENTAL RULES OF THE STARRETT LEHIGH BUILDING (BUILDING)
CONCERNING EVENTS HELD IN THE BUILDING. THE TENANT IDENTIFIED BELOW HEREBY
REQUESTS THE CONSENT OF THE OWNER TO THE EVENT DESCRIBE BELOW. ALL ITALICIZED
TERMS HAVE THE SAME MEANING AS IN THE SUPPLEMENTAL RULES ATTACHED TO AND WHICH
FORM PART OF THE TENANT'S LEASE.
Name of Tenant _________________________________________________________________
Leased Space # ______ Name of Responsible Individual ___________________________
Tenant's Telephone # ____ __________ Tenant's FAX # ____________________________
Date of Proposed Event _______________ Time of Proposed Event __________________
Nature of Proposed Event _______________________ # of invitees _________________
Proposed Location of Event within Building: Tenant's Space ___ Other (specify)__
________________________________________________________________________________
Has Tenant obtained a Temporary Place of Assembly Permit from the NYC Dept. of
Buildings? ____ Yes _____ No. If yes, attach copy of NYC Dept. of Buildings
Permit Application and Permit to this application. If no, NYC Dept. of
Buildings Permit Application and Permit MUST be submitted to Owner prior to
approval of application.
Will liquor be served at the proposed Event? ____Yes ____ No. If yes, has Tenant
obtained a Temporary On-Premises Liquor or Caterer's License from the NYS Liquor
Authority? ___ Yes ____ No. If yes, attach to application. If no, License MUST
be submitted to Owner prior to approval of application.
Has Tenant prepared a detailed Statement of the type(s) and source(s) of all
food to be served at the proposed Event (or Statement that no food will be
service)? ___Yes ___No If yes, attach to application. If no, Statement MUST be
submitted to Owner prior to approval of application.
Has Tenant prepared an accurate Plan showing all means of ingress and egress
(including designation of corridors and other common areas) proposed to be
utilized in connection with the proposed Event? ___Yes ____ No If yes, attach to
application. If no, Plan MUST be submitted to Owner prior to approval of
application.
Has Tenant obtained a Certificate of Insurance with respect to the proposed
Event? ____ Yes ____ No If yes, attach to application. If no, Certificate MUST
be submitted to Owner prior to approval of application.
Has Tenant arranged for professional licensed security personnel to be present
at the Building in connection with the proposed Event? ____Yes ____No If yes,
attach a copy of Tenant Contract with the security agency or personnel, together
with proof of licensing. If no, the Contract and proof of licensing MUST be
submitted to Owner prior to approval of application.
Has Tenant executed an Indemnification of Owner with respect to the proposed
Event on the form prescribed by Owner for that purpose? ____Yes ____No If yes,
attach to application. If no, Indemnification MUST be submitted to Owner prior
to approval of application.
Tenant acknowledges and agrees to pay the following fees and costs of Owner in
connection with the proposed Event. Non-Refundable Application Processing Fee -
$500; Maintenance/Clean Up Crew Fee - $200 minimum plus $50/hour for each hour
(or part thereof) after 4 hour's; Elevator Overtime (6 PM - 9 AM) - $300 minimum
plus $75/hour for Maintenance/Clean Up Crew Fee -$200 minimum plus $50/hour for
each hour (or part thereof) after 4 hours; Elevator Overtime (6 PM - 9 AM) -
$300 minimum plus $75/hour for each hour (or part thereof) after 4 hours;
Building Security Overtime (6 PM - 9 AM) - $200 minimum plus $50/hour for each
hour (or part thereof) after 4 hours.
Is the Non-Refundable Application Processing Fee being paid by Tenant at this
time?
___Yes ____ No If yes, attach to application. If no, Fee MUST be paid prior to
processing of application by Owner.
Does Tenant anticipate incurring Overtime expenses? ____Yes ____No If yes,
Tenant acknowledge that approval of application, is expressly conditional upon
payment, of minimum costs and fees of $700 in accordance with above schedule,
prior to date of
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proposed Event. If no, Tenant acknowledges that approval of application, is
expressly conditional upon payment of minimum costs and fees of $200 in
accordance with above schedule, prior to date of proposed Event. Such minimum
fees and costs are in addition to the Non-Refundable Application Processing Fee.
Tenant shall have no right to hold or sponsor the Event if such fees and costs
are not paid.
Tenant agrees that additional fees and costs, over and above the minimum fees
and costs set forth above, if any, shall be paid as follows: if ascertainable
and billed by Owner prior to the proposed Event. Immediately upon billing and in
any event prior to the Event; if not ascertainable prior to the proposed Event,
as soon as practicable after being ascertained and billed, and in any event not
later than the 1st day of the month immediately following the month in which
such fees and costs are billed by Owner to Tenant (Fees and costs billed alter
the Event shall be deemed additional rent under the Lease.)
Tenant certifies that it has read and is familiar with the Supplemental Rules;
that it agrees that the proposed Event shall in all respects be governed by the
same; and that violation of the Supplemental Rules shall be deemed a material
breach of Tenant's Lease. Tenant acknowledges that Owner retains no rights to
approve or disapprove submissions and/or this application, as the case may be,
in accordance with the Supplemental Rules and applicable Law.
Date of Application: _____________________
AUTHORIZED SIGNATORY FOR TENANT/APPLICANT:
__________________________________________
PRINT NAME & TITLE BELOW:
__________________________________________
FOR OWNER:
Date: _________________________
____ APPROVED _____ DISAPPROVED
____ APPROVED ON CONDITION THAT TENANT ______________________
______________________________________________________________
AUTHORIZED SIGNATORY FOR OWNER:
__________________________________________
PRINT NAME & TITLE BELOW:
__________________________________________
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INDEMNIFICATION
To induce 601 West Associates LLC, Owner ("Owner") of the Starrett
Lehigh Building, located at 601 West 26th Street, New York, New York 10001
("Building") to accept process and approve an application by _________________
____________________ ("Tenant") to hold an event in the Building on _________
_______ ("Event"), pursuant to the Supplemental Rules and Regulations of the
Building attached to and part of Tenant's Lease, Tenant hereby agrees to waive
and release Owner with respect to, and indemnify, defend and hold Owner harmless
from and against, any and all costs, demands, claims, suits, actions,
proceedings, orders, judgments, writs, decrees, forfeitures, subpoenas,
warrants, and the like, arising out of or in connection with the Event
(collectively, "Claims"), including but not Limited to demands for the payment
of principal sums, interest and penalties, and including but not limited to the
legal expenses incurred by Owner (including legal fees, costs, disbursements and
expenses) in enforcing rights against Tenant or defending against any such Claim
through counsel of Owner's choice.
IN WITNESS WHEREOF, the undersigned has executed this Indemnification
at New York, New York on the ___ day of ___________, _____.
________________________________________
TYPE/PRINT NAME OF TENANT
By: ____________________________________
(Authorized Signatory) (Title)
________________________________________
TYPE/PRINT NAME OF AUTH. SIGN.
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Acknowledgment - Individual
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the _____day of ______________ before me personally appeared
_________ _______, known to me, who, being by me duly sworn, did depose and say
that (s)he is the Tenant named in and who executed the foregoing
indemnification.
________________________________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the _____day of ______________ before me personally appeared
_________ _______, known to me, who, being by me duly sworn, did depose and say
that (s)he resides at _________________________; that (s)he is the
____________________ of __________________________________, the Tenant named in
and on behalf of whom/which (s)he executed the foregoing Indemnification that
(s)he signed his/her name thereto by order of the Tenant; and that if the Tenant
is a corporation the scale of which has been affixed to the foregoing
instrument, that the same is by order of the Board of Directors of such
corporation.
________________________________________
Notary Public
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TABLE OF CONTENTS
<TABLE>
<S> <C>
1. RIDER PROVISIONS PREVAIL.................................................................. 18
2. COMMENCEMENT OF TERM...................................................................... 18
3. FIXED RENTAL AND ADDITIONAL RENTAL........................................................ 18
4. RENT ESCALATION -CONSUMER PRICE INDEX..................................................... 18
5. AS IS CONDITION; LANDLORD'S WORK.......................................................... 19
6. SUBSTANTIAL COMPLETION.................................................................... 19
7. TENANT'S INITIAL INSTALLATIONS............................................................ 20
8. ESCALATIONS FOR INCREASE IN REAL ESTATE TAXES............................................. 20
9. WATER, SEWER AND SPRINKLER CHARGES........................................................ 21
10. ALL ADDITIONAL RENTAL PAYMENTS............................................................ 21
11. ASSIGNMENT AND SUBLETTING................................................................. 21
12. LIMITATION OF LIABILITY................................................................... 23
13. INDEMNIFICATION........................................................................... 23
14. ELECTRIC CURRENT.......................................................................... 23
15. BROKER.................................................................................... 24
16. BINDING EFFECT............................................................................ 25
17. LATE FEE.................................................................................. 25
18. SECURITY.................................................................................. 25
19. HOLDOVER.................................................................................. 25
20. APPLICABLE LAW. .......................................................................... 25
21. HAZARDOUS MATERIALS....................................................................... 26
22. NOTICES................................................................................... 26
23. ADDENDUM TO ARTICLE 16-BANKRUPTCY......................................................... 26
24. RENT CONTROL.............................................................................. 26
25. REPAIRS................................................................................... 27
26. CONDITIONAL LIMITATION.................................................................... 27
27. LANDLORD'S SERVICES....................................................................... 27
28. TENANT'S ALTERATIONS...................................................................... 28
</TABLE>
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<PAGE> 48
<TABLE>
<S> <C>
29. SUBORDINATION AND ATTORNMENT.............................................................. 29
30. MISCELLANEOUS............................................................................. 30
31. LEASE NOT BINDING UNLESS EXECUTED......................................................... 31
32. SUBMISSION TO JURISDICTION................................................................ 31
33. QUALIFICATIONS AS TO USE.................................................................. 31
34. PARTNERSHIP TENANT........................................................................ 31
35. CERTIFICATE OF OCCUPANCY.................................................................. 31
36. ACCESS TO PREMISES........................................................................ 32
37. USE OF PREMISES........................................................................... 32
38. EXCLUSION OF PERSONS FROM PREMISE AND DELIVERY SYSTEMS.................................... 32
39. ADDENDUM TO RULES AND REGULATIONS......................................................... 32
40. SCAFFOLDING............................................................................... 32
41. TENANT'S CANCELLATION OPTION.............................................................. 32
42. ACCOMMODATION RIGHT OF FIRST OFFER........................................................ 33
43. THE PREMISES.............................................................................. 33
44. LANDLORD'S WORK TO COMMON AREAS........................................................... 33
45. TENANT ACCESS TO BUILDING CONDUIT......................................................... 33
</TABLE>
47