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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE YEAR ENDED DECEMBER 31, 1999
COMMISSION FILE NUMBER 000-25525
ABOUT.COM, INC.
(Exact Name of Registrant as Specified in its Charter)
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DELAWARE 7373 13-4034015
(State of Incorporation) (Primary Standard (I.R.S.Employer
Industrial Identification Number)
Classification Code)
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220 EAST 42ND STREET, 24TH FLOOR
NEW YORK, NEW YORK 10017
(212) 849-2000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
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SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
COMMON STOCK $.001 PAR VALUE
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. /X/ Yes / / No
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. / /
The aggregate market value of voting stock held by non-affiliates of the
registrant as of February 15, 2000 was $825,318,673, based on the last reported
sale price on the NASDAQ National Market on that date.
The number of shares outstanding of the registrant's common stock as of
February 15, 2000 was 16,562,438.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant's Proxy Statement for the 2000 Annual Meeting of
Stockholders, which is to be filed within 120 days of the end of the fiscal year
to which this report relates, are incorporated herein by reference.
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ABOUT.COM, INC.
1999 FORM 10-K ANNUAL REPORT
TABLE OF CONTENTS
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PART I
Item 1. Business.................................................... 3
Item 2. Properties.................................................. 22
Item 3. Legal Proceedings........................................... 22
Item 4. Submissions of Matters to a Vote of Security Holders........ 22
PART II
Item 5. Market for Registrant's Common Equity and Related 23
Stockholder Matters.........................................
Item 6. Selected Consolidated Financial Data........................ 24
Item 7. Management's Discussion and Analysis of Financial Condition 26
and Results of Operations...................................
Item 7A. Quantitative and Qualitative Disclosures About Market 31
Risk........................................................
Item 8. Consolidated Financial Statements and Supplementary Data.... 32
Item 9. Changes in and Disagreements with Accountants on Accounting 65
and Financial Disclosure....................................
PART III
Item 10. Directors and Executive Officers of the Registrant.......... 66
Item 11. Executive Compensation...................................... 66
Item 12. Security Ownership of Certain Beneficial Owners and 66
Management..................................................
Item 13. Certain Relationships and Related Transactions.............. 66
PART IV
Item 14. Exhibits, Financial Statements Schedules and Reports on Form 67
8-K.........................................................
Signatures............................................................ 69
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THIS REPORT CONTAINS FORWARD-LOOKING STATEMENTS BASED ON OUR CURRENT
EXPECTATIONS, ASSUMPTIONS, ESTIMATES AND PROJECTIONS ABOUT ABOUT.COM AND OUR
INDUSTRY. THESE FORWARD-LOOKING STATEMENTS INVOLVE RISKS AND UNCERTAINTIES.
ABOUT.COM'S ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE ANTICIPATED IN
SUCH FORWARD-LOOKING STATEMENTS AS A RESULT OF CERTAIN FACTORS, AS MORE FULLY
DESCRIBED IN THIS SECTION AND ELSEWHERE IN THIS REPORT. ABOUT.COM UNDERTAKES NO
OBLIGATION TO UPDATE PUBLICLY ANY FORWARD-LOOKING STATEMENTS FOR ANY REASON,
EVEN IF NEW INFORMATION BECOMES AVAILABLE OR OTHER EVENTS OCCUR IN THE FUTURE.
PART I
ITEM 1: BUSINESS
OVERVIEW
We operate ABOUT.COM, a platform comprised of a network of more than 700
highly-targeted, topic-specific web sites. Our network is differentiated by the
high quality and depth of content we provide to users through the efforts of
knowledgeable human guides who manage the sites, the volume of sites in our
network and the consistency of site structure and design across the network. The
sites provide high-quality original articles, moderated forums and chat rooms,
newsletters, easy access to related sites, tools, and functionality within the
ABOUT.COM network and extensive hand-picked links to web sites outside of
ABOUT.COM. We pre-screen, train and monitor our guides to ensure quality and
consistency across our network.
Our network has been one of the fastest growing properties among the top 25
Internet properties ranked by Media Metrix since we launched the About.com brand
in May 1999. According to Media Metrix, approximately 13.2 million unique users
visited ABOUT.COM in January 2000, making ABOUT.COM the tenth largest Internet
property overall.
We believe that the design of our network provides an attractive advertising
and electronic commerce platform for reaching highly concentrated groups of
users. Because our network is organized into channels of related sites, we
provide advertisers and electronic commerce marketers the ability to access
specific audiences through our highly targeted sites or use our channels or
network to reach broader audiences.
THE PLATFORM
We offer users a broad network of over 700 topic-specific sites in order to
help users find, learn and share information within and outside of our network.
In doing so, we create an environment in which advertisers can direct their
messages to targeted audiences ranging from all users of our network to the
users of a specific site.
HIGH-QUALITY, TOPIC-SPECIFIC SITES. Each of our topic-specific sites is
overseen by a guide who is knowledgeable about the site's topic. Our experienced
editorial staff pre-screens, trains and oversees these guides in order to ensure
a quality user experience. As a result of this guide management process, our
sites incorporate high-quality original articles, information and relevant
hand-picked links to web sites within and outside our network.
NETWORK BENEFITS. ABOUT.COM is designed to enable users to move rapidly and
efficiently throughout our network and to find relevant information on a wide
range of topics. To facilitate user navigation, we group our web sites into
broad, topical channels. All of our sites and channels are designed and
presented in a consistent manner so that users moving through ABOUT.COM can
easily find the information they are seeking. By using standard templates and a
patented guide-management methodology, we can easily and cost-effectively add
new sites to address new topics of interest and to develop event-driven and
seasonal web sites.
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ATTRACTIVE ADVERTISING AND ELECTRONIC COMMERCE PLATFORM. We believe our
network offers a broad range of advertising and electronic commerce marketing
opportunities. By organizing related sites into channels, we provide advertisers
and electronic commerce marketers with significant flexibility to select the
level of targeting that they want to achieve on ABOUT.COM. Advertisers and
electronic commerce marketers can access broad audiences by advertising across
our network or reach more targeted audiences by advertising in specific channels
or web sites.
PLATFORM STRUCTURE AND DEVELOPMENT
Our network currently consists of more than 700 topic-specific sites, each
of which focuses on a particular topic and is overseen by a knowledgeable and
paid guide. For ease of use and for enhanced advertising opportunities, we have
grouped our more than 700 topic-specific sites into the following 28 channels.
ARTS/LITERATURE
AUTOS
CITIES/TOWNS
Alaska/Hawaii
California
Midatlantic
Midwest
Mountain States
New England
Pacific Northwest
Southeast
Southwest
COMPUTING/TECHNOLOGY
EDUCATION
ENTERTAINMENT
FINANCE/INVESTING
FOOD/DRINK
GAMES
HEALTH/FITNESS
HOBBIES
HOME/GARDEN
INDUSTRY
INTERNET/ONLINE
JOBS/CAREERS
KIDS
NEWS/ISSUES
PARENTING/FAMILY
PEOPLE/RELATIONSHIPS
Adult Interest
PETS
REAL ESTATE
SHOPPING
SMALL BUSINESS
SOCIETY/CULTURE
SPORTS
STYLE
TEENS
TRAVEL
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We will continue to enhance the content and services offered at the channel
and site levels. Towards this end, we have created a cross-discipline team
structure to focus on the needs of particular channels. In those areas where we
believe our internal offering can compete successfully on an independent basis,
the relevant channel teams will focus their energy on the channel's further
development. In other selected areas, we may choose to strengthen our channel
offering by combining the benefits of our network with the tools or content of a
third party. These relationships can vary from providing content for a
particular area of a channel to sponsoring an entire channel. They also enable
us to increase the breadth of content on our network without incurring
significant development costs. These third-party channel development agreements
are typically at least 12 months in duration and require our partners to make
payments to us for development, placement and advertising. To date, we have
formed partnerships in the following channels:
- AboutShopping with ShopNow.com;
- AboutFinance with The Motley Fool;
- AboutComputing/Technology with CMP Media, Inc.;
- AboutHealth with OnHealth.com;
- Auto Channel with Cars.com;
- Jobs/Careers Channel with HotJobs.com;
- Real Estate Channel with Move.com; and
- Kids Channel with SurfMonkey.com.
We have also entered into partnerships to enhance our service offerings
across several of our channels. In the future, we may also expand our channel
offerings through the acquisition of complementary businesses and technologies.
DISTRIBUTION AND SYNDICATION PARTNERSHIPS
We believe that our distribution and syndication partnerships drive traffic
to ABOUT.COM. Through these partnerships, we typically provide content to a
partner's web site, and users can then link to ABOUT.COM for the full feature or
additional information on that topic. The flexibility and breadth of our content
enables us to partner with a broad range of Internet companies, including the
following:
- Search engines and Internet directories such as Ask Jeeves, Dogpile,
Earthlink, GoTo.com, Mamma, Metacrawler, Netscape Communications and
RealNames; and
- Content web sites such as Embark.com, Pogo.com, Sportsrocket and
Weather.com.
These agreements typically require us to make payments that are either fixed
or are based on the amount of user traffic directed from the partner's site to
ABOUT.COM. In addition, through our recently established affiliate marketing
program, third-party web sites can populate their site with our features and
content, and Internet users are linked to ABOUT.COM for additional content.
These agreements will require us to make payments that are based on the amount
of user traffic directed from the affiliate's site to ABOUT.COM. Through our
syndication partnerships, we provide content to a partner's web site for a fee.
We intend to continue to pursue distribution and syndication partnerships with
leading Internet service providers and popular web sites in the future.
SALES AND MARKETING
We believe our network provides a highly targeted platform for advertising
and electronic commerce over a broad range of consumer and business topics.
Sales of advertisements on ABOUT.COM are being generated primarily by our
internal advertising sales organization. Our internal advertising sales force
maintains close relationships with advertisers by consulting regularly with them
on design and placement of
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their Internet-based advertising, by providing them with advertising measurement
analysis and by providing a high level of customer support. As of December 31,
1999, we had an internal advertising sales organization consisting of 39
professionals located in New York, Los Angeles and San Francisco. We intend to
increase the size of our internal advertising sales organization.
Our advertisers typically enter into agreements with terms of between two
months and two years, under which they generally receive a guaranteed number of
impressions at a fixed rate. In some cases, these agreements entitle us to a
share of revenues generated by sales of merchandise or services over a
particular threshold resulting from direct links from ABOUT.COM. Advertisers
have significant flexibility in determining the placement of their
advertisements based on the level of targeting they want to achieve. We offer
numerous sizes and types of advertising placement, including banner
advertisements, button advertisements and text links. We also offer sponsorship
programs and other promotional opportunities to build brand awareness and to
drive traffic to the web sites of our advertisers.
The following is a list of some of the advertisers that have advertised on
ABOUT.COM during 1999:
1-800 Flowers
Astra Pharmaceuticals
BellSouth
Big Star Entertainment
BMG Music
Borders.com
Buy.com
Cars.com
Discover
Drugstore.com
e-Bay
eGreetings
First Alliance Corp.
Hewlett Packard
JC Penney
Kforce
Lifeminders.com
Lowestfare.com
Mail.com
Mapquest.com
Martha Stewart.com
Mondera.com
MotherNature.com
MSN Sidewalk
Netscape
Nicorette
Petopia
RealNames
Synergy Brands
Totally Wireless
Travelocity
VR Services
For several of our advertisers we have developed electronic commerce
promotions that integrate original content from ABOUT.COM with traditional
commercial advertising. We provide links to these integrated promotional sites
by prominently displaying the advertisement within ABOUT.COM. For example, we
have developed an online book store for Borders.com that integrates Borders'
book offerings with book reviews independently written by ABOUT.COM guides. As
part of this promotion, guides can make recommendations for books related to
their topic-specific sites that are linked to the Borders online book store. As
of December 31, 1999, over 520 guides had created annotated links to Borders
book store within their topic-specific sites. We believe these features create a
more relevant, engaging purchasing vehicle for users, while enhancing the value
of our network as an electronic commerce platform.
BRAND PROMOTION AND MARKETING
We believe that an aggressive brand promotion campaign will increase usage
of ABOUT.COM, as well as attract additional advertisers and electronic commerce
partners. We market our service through online advertising and have been
advertising in selected cities through traditional offline media, including
outdoor and radio advertisements and a national trade magazine campaign. We also
utilize public relations, trade shows and ongoing customer communications
programs. We intend to expand our marketing and brand promotion initiatives.
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GUIDE MANAGEMENT
As of December 31, 1999, our 704 guides, 466 of whom had been guides for at
least one year, were located in over 40 states and 18 countries. Through the
topic-specific sites, these independent contractors create annotated Internet
directories and original content, and moderate personal interaction tools such
as bulletin boards and chat. As of December 31, 1999, the guides were directly
supported by a team of 61 of our employees, including 36 editors and guide
managers. Editors regularly monitor each topic-specific site to assess the
relevance and quality of its features, the management of personal interaction
tools and compliance with our policies. Editors also provide weekly newsletters
and host chats with guides to better communicate topic-specific site tips,
including news, ideas for improving sites and marketing information. Guide
Managers oversee the guides' working relationships with our full-time employees
and serve as the guides' primary contact for non-content, non-marketing issues.
APPLICATION AND TRAINING. We recruit our guides through various methods,
including searches of the Internet for topic-specific sites run by individuals,
user inquiries, referrals by existing guides and Internet-based classified job
listings. Guide applications are available on ABOUT.COM and are screened by a
team of editors who read and evaluate the applicant's sample feature article and
Internet directories, as well as assess the applicant's knowledge of his or her
topic. Once an application is accepted, the applicant becomes an associate guide
and is placed into a four-week preliminary training class. During this period,
the associate guide is taught how to construct and maintain one of our
topic-specific sites, how to administer a bulletin board and chat, and how to
create features and newsletters. At the same time, we review the associate
guide's feature articles and directories for quality of organization,
annotation, completeness, direct linking to relevant pages within web sites and
writing skills. If the associate guide meets our qualification criteria at the
end of this period, his or her web site becomes a live topic-specific site and
the associate guide becomes a guide.
Following successful completion of the training class, each guide is placed
in a comprehensive 12-week follow-on training and quality control process.
During this period, the editorial staff provides guides with feedback on the
strengths and weaknesses of their sites and makes recommendations for further
improvements of both quality and consistency. At the end of this 12-week period,
the quality of the guide's site is rated. This rating is regularly revisited by
the editors and is one of the factors that determines a guide's minimum
compensation.
GUIDE CONTRACTS. Pursuant to the standard guide contract, we are granted an
exclusive perpetual license to use guide-developed ABOUT.COM content on the
Internet and on any other commercial online service, subject to the guide
sharing in any associated revenue. In addition, we also retain the right, on a
non-exclusive basis, to use the content in any offline media, subject to the
guide sharing in any associated revenue. The guides have agreed to share with us
any revenue derived from their use of this content in any offline media. The
standard guide contract is terminable by either party upon 15 days' prior
written notice.
GUIDE COMPENSATION. Guides are currently compensated based on the greater
of a monthly guarantee or a percentage of net advertising revenues generated by
the topic-specific sites on ABOUT.COM, which we distribute among the guides
based on the user traffic on each guide's respective topic-specific site. By
compensating guides based on the net advertising revenues of topic-specific
sites, the guides are provided incentives to help and encourage each other.
Guides are also currently entitled to share a percentage of net transaction
revenues and net syndication revenues. In addition, we may distribute a
discretionary bonus to guides based on outstanding content, exceptional
performance and longevity.
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OUR PROPRIETARY TEMPLATE
We have developed a proprietary template for the consistent presentation of
each topic-specific site's navigational features, content and personal
interaction tools. This template includes:
- a welcome page that promotes various aspects of a topic-specific site,
including the guide's latest featured article;
- the name, email address and photograph of the guide managing the
topic-specific site;
- an Internet directory that provides annotated links to the guide's
selected third-party Internet content, as well as links to other relevant
content within the network;
- an archive of the guide's original content features;
- a guide-created email newsletter to allow the site's users to stay in
touch with developments on the site and the site's particular topic;
- a guide-moderated bulletin board where users can post questions, opinions
or information;
- a chat room for users that is used for regularly scheduled, guide-hosted
chat sessions and unscheduled open chat;
- a guide-maintained events calendar that lists various activities and
events related to the site's specific topic; and
- a biography page that provides users with a personal profile of each
guide.
Our editors regularly identify noteworthy content features within the
topic-specific sites and highlight the content by creating a variety of
aggregated areas within ABOUT.COM (e.g., "ABOUT.COM TODAY") and email
newsletters. We believe these aggregated content areas and newsletters are
effective site promotion and user retention tools.
OPERATING INFRASTRUCTURE
Our operating infrastructure is designed to provide timely and efficient
delivery of the network to customers. Each page on a topic-specific site is
generated and delivered by one of our web and applications servers. Our network
uses FreeBSD, Solaris and Microsoft Windows NT for operating systems, and Apache
and IIS for Internet web server software. Our internal programming efforts are
written using a broad spectrum of programming languages.
The administrative control center is our patented Internet-based site
management environment. This center enables our guides to remotely manage their
topic-specific sites at any time via a password-protected interface in order to
preview and upload content, view usage and feedback reports, and access
administrative tools for newsletters, chat, bulletin boards and events
calendars.
In January 1998, we entered into an Internet-hosting agreement with
GlobalCenter to maintain all of our production servers at GlobalCenter's
Manhattan Data Center. This agreement was extended in January 1999 and is
terminable by either party upon 90 days' notice. GlobalCenter provides
comprehensive facilities management services, including human and technical
monitoring of all production servers 24 hours per day, seven days per week.
GlobalCenter provides the means of connectivity for ABOUT.COM's servers to
end-users via the Internet through high capacity transmission wires. These
connections link to many different parts of the Internet via a combination of
public and private peering agreements. The facility has two independent power
supplies, which are battery-powered, as well as two independent diesel
generators designed to provide power to these systems within seconds of a power
outage. The diesel generators can supply the data center's power for nine days
before refueling is required. GlobalCenter does not guarantee that our Internet
access will be uninterrupted, error-free or secure. Our operations are dependent
on GlobalCenter's ability to protect both its and our systems against damage
from fire, power
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loss, water damage, telecommunications failures, vandalism and other malicious
acts, and similar unexpected adverse events. Any disruption in the Internet
access provided by GlobalCenter could have a material adverse effect on our
business, results of operations and financial condition.
ABOUT.COM must accommodate a high volume of traffic and has in the past and
may in the future experience slower response times and system downtime for a
variety of reasons. An increase in volume of users accessing ABOUT.COM could
lead to systems failures or slower response times and adversely affect
advertising revenues. Users may become dissatisfied by any system failure that
interrupts our ability to provide ABOUT.COM to them or results in slower
response time. ABOUT.COM could also be affected by computer viruses, electronic
break-ins or other similar disruptions. Our insurance policies have low coverage
limits and therefore insurance may not adequately compensate us for any losses
that may occur due to any failures in our system or interruptions in our
service. Our business, results of operations and financial condition could be
materially adversely affected by any damage or failure that interrupts or delays
our operations.
All of our production data is copied to backup tapes each night and these
backup tapes are rotated to a third-party facility for off-site storage. We keep
all of our production servers behind packet-filtered routers and do not allow
any outside access to any administrative functions. Strict password management
and physical security measures are followed.
Our users and guides depend on Internet service providers, online service
providers and other web site operators for access to ABOUT.COM. Each of these
providers and operators has experienced significant outages in the past, and
could experience outages, delays and other difficulties due to system failures
unrelated to our systems. Moreover, the Internet infrastructure may not be able
to support continued growth in its use. Any of these problems could materially
adversely affect our business, results of operations and financial condition.
GOVERNMENT REGULATION AND LEGAL UNCERTAINTIES
GENERAL. There are an increasing number of laws and regulations pertaining
to the Internet. In addition, a number of legislative and regulatory proposals
are under consideration by federal, state, local and foreign governments and
agencies. Laws or regulations may be adopted with respect to the Internet
relating to liability for information retrieved from or transmitted over the
Internet, online content regulation, user privacy, taxation and quality of
products and services. Moreover, the applicability to the Internet of existing
laws governing issues such as intellectual property ownership and infringement,
copyright, trademark, trade secret, obscenity, libel, employment and personal
privacy is uncertain and developing. Any new legislation or regulation, or the
application or interpretation of existing laws, may decrease the growth in the
use of the Internet, which could in turn decrease the demand for our network,
increase our cost of doing business or otherwise have a material adverse effect
on our business, results of operations and financial condition.
LIABILITY FOR INFORMATION RETRIEVED FROM ABOUT.COM AND FROM THE
INTERNET. Content may be accessed on ABOUT.COM or on the web sites of our
distribution or syndication partners, and this content may be downloaded by
users and subsequently transmitted to others over the Internet. This could
result in claims against us based on a variety of theories, including
defamation, obscenity, negligence, copyright or trademark infringement or other
theories based on the nature, publication and distribution of this content.
These types of claims have been brought, sometimes successfully, against
providers of Internet services in the past. We could also be exposed to
liability with respect to third-party content that may be posted by users in
chat rooms or bulletin boards offered on the topic-specific sites. If any
information provided on ABOUT.COM, including information deemed to constitute
professional advice such as legal, medical, financial or investment advice,
contains errors or false or misleading information, third parties could make
claims against us for losses incurred in reliance on such information. ABOUT.COM
contains approximately 1,000,000 human-filtered annotated links to other web
sites. As a result, we may be subject to claims alleging that, by
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directly or indirectly providing links to other web sites, we are liable for
copyright or trademark infringement or the wrongful actions of third parties
through their respective web sites.
The Communications Decency Act of 1996, or CDA, was enacted to prohibit the
transmission over the Internet of indecent, obscene or offensive content. While
selected parts of the CDA have been deemed unconstitutional, provisions
protecting providers of Internet services from claims related to third-party
content remain effective. Under the CDA, a provider of Internet services will
generally not be treated as a publisher or speaker of any information available
on its service provided by a third-party content provider unless the provider of
Internet services exerts editorial control over the content or embraces the
content as its own. The Digital Millennium Copyright Act of 1998 provides
additional safe harbor defenses for Internet service providers under similar
conditions and upon compliance with procedural requirements specified in the
act. Our activities may prevent us from being able to take advantage of these
safe harbor provisions. In particular, while we do not edit the guide-developed
content prior to its availability on ABOUT.COM, we do monitor this content to
ensure compliance with our policies, which may subject us to claims that we are
the publisher of the content available on the topic-specific sites. In addition,
since we have exclusive online rights to all guide-developed content on
ABOUT.COM, we also aggregate this content for use on ABOUT.COM and for
syndication and distribution to third-party web sites and electronic commerce
partners. We may be subject to claims that we are the publisher of this
aggregated guide-developed content and to the extent that we exercise editorial
control over the content available on any site within our network, we increase
the risk that we will be found to be the publisher or speaker of that content.
While we attempt to reduce our exposure to this potential liability through,
among other things, provisions in guide agreements, user policies and
disclaimers, the enforceability and effectiveness of such measures are
uncertain.
Our general liability insurance may not cover all potential claims to which
we are exposed and may not be adequate to indemnify us for all liability that
may be imposed. Any imposition of liability that is not covered by insurance or
is in excess of insurance coverage could have a material adverse effect on our
business, results of operations and financial condition. Even if these claims do
not result in liability, we could incur significant costs in investigating and
defending against these claims. Potential liability for information disseminated
through ABOUT.COM could lead us to implement measures to reduce our exposure to
such liability, which may require the expenditure of substantial resources and
limit the attractiveness of our network to users.
STATUS OF THE GUIDES AS INDEPENDENT CONTRACTORS. We treat the guides as
independent contractors for tax and employee benefit purposes. One or more
jurisdictions may deem the guides to be our employees rather than independent
contractors and seek to impose taxes, interest and penalties on us. We could
have substantial tax and employee benefit liabilities if it were ultimately
determined that the guides are our employees. See "Risk Factors--We could incur
significant withholding taxes and employee benefits expenses if the guides were
deemed to be our employees rather than independent contractors."
ONLINE CONTENT REGULATIONS. Several federal, state and foreign statutes
prohibit the transmission of indecent, obscene or offensive content over the
Internet to particular groups of persons. In particular, the Children's Online
Privacy Protection Act (COPPA) and the Protection from Sexual Predators Act
place restrictions on Internet service providers and content providers to ensure
that safeguards are in place to prevent children from accessing adult content.
Our network includes links to sites with adult content and we may need to comply
with one or more of these acts. In addition, there is pending legislation which
seeks to ban Internet gambling and federal and state officials have taken action
against businesses that operate Internet gambling activities. The enforcement of
these statutes and initiatives, and any future enforcement activities, statutes
and initiatives, may result in limitations on the type of content and
advertisements available on ABOUT.COM. Legislation regulating online content
could dampen the growth in use of the Internet generally and decrease the
acceptance of the Internet as an advertising and electronic commerce medium,
which could have a material adverse effect on our business, results of
operations and financial condition.
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PRIVACY CONCERNS. The Federal Trade Commission, or FTC, is considering
adopting regulations regarding the collection and use of personal identifying
information obtained from individuals when accessing web sites, with particular
emphasis on access by minors. These regulations may include requirements that
companies establish certain procedures to, among other things:
- give adequate and appropriate notice to users regarding information
collection and disclosure practices;
- provide users with the ability to have personal identifying information
deleted from a company's database;
- provide users with access to their personal information and with the
ability to rectify inaccurate information; and
- clearly identify affiliations or a lack thereof with third parties that
may collect information or sponsor activities on a company's web site.
We are currently implementing a program designed to enhance the protection
of personal information collected online from children under 13 years of age, as
required by the FTC in COPPA which will go into effect on April 21, 2000. In
compliance with COPPA, we will:
- provide notice to users of our collection, use and disclosure practices;
- obtain verifiable parental consent for the collection, use or disclosure
of personal information collected online from children;
- provide parents with a description of, and in some cases, the actual
information that we have collected online from the child;
- allow parents to opt out of further use of the information;
- avoid conditioning participation in an activity on disclosure of
unnecessary information; and
- use reasonable data confidentiality, security and integrity procedures to
protect such information.
These regulations may also include enforcement and redress provisions. While
we are implementing programs designed to enhance the protection of the privacy
of our users, including children, these programs may not conform with any
regulations adopted by the FTC. Moreover, even in the absence of those
regulations, the FTC has begun investigations into the privacy practices of
companies that collect information on the Internet. One investigation resulted
in a consent decree pursuant to which an Internet company agreed to establish
programs to implement the principles noted above. The FTC has also investigated
companies' compliance with their stated privacy policies to ensure the accuracy
and truthfulness of companies' disclosures in their privacy policies. We may
become subject to similar investigations, or the FTC's regulatory and
enforcement efforts may adversely affect our ability to collect demographic and
personal information from users, which could have an adverse effect on our
ability to provide highly targeted opportunities for advertisers and electronic
commerce marketers. Any of these developments would have a material adverse
effect on our business, results of operations and financial condition.
We use cookies to target advertising on our site. Cookies are information
keyed to a specific server, file pathway or directory location that is stored on
a user's hard drive, possibly without the user's knowledge, which are used to
track demographic information and to target advertising and may become subject
to laws limiting or prohibiting their use. A number of Internet commentators,
advocates and governmental bodies in the United States and other countries have
urged the passage of laws limiting or abolishing the use of cookies. Limitations
on or elimination of our use of cookies could limit the effectiveness of our
targeting of advertisements, which could have a material adverse effect on our
business, results of operations and financial condition.
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The European Union, or EU, has adopted a directive that imposes restrictions
on the collection and use of personal data in the EU. Under the directive, EU
citizens are guaranteed rights to access their data, rights to know where the
data originated, rights to have inaccurate data rectified, rights to recourse in
the event of unlawful processing of their data and rights to withhold permission
to use their data for direct marketing. The directive could, among other things,
affect U.S. companies that collect information over the Internet from
individuals in EU member countries, and may impose restrictions that are more
stringent than current Internet privacy standard in the United States. In
particular, companies with offices located in EU countries will not be allowed
to send personal information to countries that do not maintain adequate
standards of privacy. The directive does not, however, specifically define what
standards of privacy are adequate. The United States has been negotiating with
the EU to establish safe harbor provisions which would allow the transfer of
data to the United States so long as certain specific safeguards are followed.
However, such safe harbors have not yet been adopted. As a result, the directive
may adversely affect the activities of entities such as us that engage in data
collection from users in EU member countries.
DATABASE PROTECTION. Legislative proposals made by the federal government
would afford broader protection to owners of databases of information, such as
stock quotes and sports scores. If enacted, owners of databases would have
certain protections and rights under copyright law for their databases. This
protection already exists in the EU. If enacted, this legislation could result
in an increase in the price of services that provide data to web sites and could
create potential liability for unauthorized use of these data. Either of these
possibilities could have a material adverse effect on our business, results of
operations and financial condition.
INTERNET TAXATION. A number of legislative proposals have been made at the
federal, state and local level, and by certain foreign governments, that would
impose additional taxes on the sale of goods and services over the Internet and
certain states have taken measures to tax Internet-related activities. Although
Congress recently placed a three-year moratorium on state and local taxes on
Internet access or on discriminatory taxes on electronic commerce, existing
state or local laws were expressly excepted from this moratorium. Further, once
this moratorium is lifted, some type of additional federal and/or state taxes
may be imposed upon Internet commerce. This legislation, or other attempts at
regulating commerce over the Internet, may substantially impede the growth of
commerce on the Internet and, as a result, adversely affect our opportunity to
derive financial benefit from those activities.
REVENUE SHARING ARRANGEMENTS. We enter into agreements with advertisers
under which we may be entitled to receive a share of revenues generated from the
purchase of goods and services through direct links from ABOUT.COM. These
agreements may expose us to additional legal risks and uncertainties, including
potential liabilities to customers of those products and services by virtue of
our involvement in providing access to those products or services, even if we do
not provide those products or services ourselves. Any indemnification provided
to us in our agreements with these parties, if available, may not be adequate.
DOMAIN NAMES. Domain names are Internet "addresses." The current system for
registering, allocating and managing domain names has been the subject of
litigation, including trademark litigation, and of proposed regulatory reform.
We have registered the domain name "ABOUT.COM." Although we are seeking to
register "ABOUT.COM" as a trademark in the United States, we may not
successfully obtain the registration and third parties may bring claims for
infringement against us for the use of this trademark. There can be no assurance
that our domain names will not lose their value, or that we will not have to
obtain entirely new domain names in addition to or in lieu of our current domain
names if reform efforts result in a restructuring of the current system.
JURISDICTIONS. Due to the global nature of the Internet, it is possible
that, although transmissions by us over the Internet originate primarily in New
York, the governments of other states and foreign countries might attempt to
regulate our transmissions or prosecute us for violations of their laws.
Existing laws may
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be modified, or new laws enacted, in the future. Any of the foregoing
developments could have a material adverse effect on our business, results of
operations and financial condition. In addition, as our network is available
over the Internet in multiple states and foreign countries, these jurisdictions
may claim that we are required to qualify to do business as a foreign
corporation in each of these states or foreign countries. Presently,we are
qualified to do business only in California, Georgia, Massachusetts, Minnesota,
New York and Utah, and failure by us to qualify as a foreign corporation in a
jurisdiction where we are required to do so could subject us to taxes and
penalties and could result in our inability to enforce contracts in these
jurisdictions. Any new legislation or regulation, the application of laws and
regulations from jurisdictions whose laws do not currently apply to our
business, or the application of existing laws and regulations to the Internet
and other online services could have a material adverse effect on our business,
results of operations and financial condition.
INTELLECTUAL PROPERTY
We seek to protect our proprietary rights, but our actions may be inadequate
to protect our patents, trademarks or other proprietary rights or to prevent
others from claiming violations of their proprietary rights. We have one United
States patent, four patent applications on file with the United States Patent
and Trademark Office and three international patent applications. We enter into
confidentiality agreements with our material employees, guides, consultants and
strategic partners, and generally control access to and distribution of our
proprietary information. Despite our efforts to protect our proprietary rights
from unauthorized use or disclosure, parties may attempt to disclose, obtain or
use our proprietary information. The steps we have taken may not prevent
misappropriation of our proprietary information. Third parties may infringe or
misappropriate our proprietary rights, which could have a material adverse
affect on our business, results of operations and financial condition. The
validity, enforceability and scope of protection of proprietary rights in
Internet-related industries is still evolving.
Furthermore, third parties may assert infringement claims against us. From
time to time we have been, and we expect to continue to be, subject to claims in
the ordinary course of our business, including claims of alleged infringement of
the trademarks and other intellectual property rights of third parties by us or
our guides. These claims by third parties and any resultant litigation, should
it occur, could subject us to significant liability for damages and could result
in the invalidation of our proprietary rights. In addition, even if we prevail,
any litigation could be time-consuming and expensive to defend, and could result
in the diversion of management's time and attention, any of which could
materially adversely affect our business, results of operations and financial
condition. Any claims from third parties may also result in limitations on our
ability to use the trademarks and other intellectual property subject to those
claims unless we enter into agreements with the third parties responsible for
those claims, which may be unavailable on commercially reasonable terms.
COMPETITION
We compete for users, advertisers and electronic commerce marketers with a
wide range of companies including the following:
- Internet "portal" companies, including Excite, Lycos and Yahoo!;
- Internet search engines and directories, including AskJeeves and
LookSmart;
- online content web sites, including C/net, ESPN.com and ZDNet.com;
- online personal homepage services, including GeoCities and Tripod;
- publishers and distributors of television, radio and print, including CBS,
Disney, NBC and Time Warner;
- general purpose consumer online services, including America Online and
Microsoft Network; and
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- web sites maintained by Internet service providers, including AT&T
WorldNet, EarthLink and MindSpring.
We believe that our ability to compete depends on many factors, many of
which are outside of our control. These factors include the quality of content
provided by us and our competitors, the ease of use of services developed either
by us or our competitors, the timing and market acceptance of new and enhanced
services developed either by us or our competitors, and sales and marketing
efforts of us and our competitors.
We also compete with television, radio, cable and print (traditional
advertising media) for a share of advertisers' total advertising budgets. If
advertisers perceive the Internet or ABOUT.COM to be a limited or ineffective
advertising medium, advertisers may be reluctant to devote a significant portion
of their advertising budget to Internet advertising or to advertise on
ABOUT.COM.
Please see "Risk Factors--We may not be able to compete successfully" for a
more detailed description of the risks of competition.
EMPLOYEES AND GUIDES
As of December 31, 1999, we had 300 full-time employees, including 95 in
marketing and sales, 72 in content, editorial and guide support, 34 in finance
and administration and 99 in product development, operations and technical
support. As of December 31, 1999, we had 704 guides and an additional 28 guides
in training. None of the guides are employed by us, but rather they are engaged
by us as independent contractors. None of our employees are represented by a
union. We believe our relationship with our employees and the guides is good.
CORPORATE HISTORY; RECENT ACQUISITIONS
We were incorporated in New York in June 1996 as General Internet Inc. and
we reincorporated in Delaware in December 1998 as MiningCo.com, Inc. In
March 1999, we completed our initial public offering of common stock and
concurrent placement, receiving net proceeds of approximately $81 million. We
changed our corporate name to About.com, Inc. in May 1999. In October 1999, we
received net proceeds of approximately $141 million in connection with our
follow-on offering of common stock.
In June 1999, we acquired VantageNet, which operates freepolls.com and hosts
polls, forums, surveys, guestbooks, message boards, horoscopes and other free
services for web sites.
In December 1999, we acquired North Sky, Inc., which operates
freeservers.com, provides web site development tools and is a hosting network
for thousands of web sites. North Sky markets its privately labeled and
co-branded solutions to businesses and organizations that want to offer tools to
enhance their web presence and traffic. Through its Domain Name Branding
proprietary network architecture, North Sky utilizes a company's name in the URL
of web sites and e-mail it offers, providing a complete online community
presence.
In January 2000, we acquired ExpertCentral.com, Inc., which operates a web
site that connects Internet users with specific questions to over 6000 rated
experts in 18 different information categories covering more than 300 topics.
In March 2000, we acquired Sombasa Media Inc., an online marketing company
empowering e-commerce through its individualized e-mail publications.
Each of VantageNet, based in St. Paul, Minnesota, North Sky, based in Orem,
Utah, ExpertCentral, based in Newton, Massachusetts, and Sombasa Media, based in
Boston, Massachusetts operate as independent subsidiaries of our company.
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RISK FACTORS THAT MAY AFFECT FUTURE RESULTS
BECAUSE WE HAVE ONLY BEEN IN BUSINESS FOR A SHORT PERIOD OF TIME, THERE IS
LIMITED INFORMATION UPON WHICH YOU CAN EVALUATE OUR BUSINESS.
We were incorporated in June 1996 and launched our network in April 1997.
Accordingly, you can only evaluate our business based on our limited operating
history. As a young company, we face risks and uncertainties relating to our
ability to successfully implement our business plan. If we are unsuccessful in
addressing these risks and uncertainties, our business, results of operations
and financial condition will be materially adversely affected.
WE HAVE LOST MONEY EVERY QUARTER AND EVERY YEAR, AND WE EXPECT TO LOSE MONEY IN
THE FUTURE.
If our revenues do not increase substantially, we may never become
profitable. We have not generated enough revenues to exceed the substantial
amounts we have spent to create, launch and enhance About.com and to grow our
business. Even if we do achieve profitability, we may not sustain or increase
profitability on a quarterly or annual basis in the future.
A portion of our historical revenues have been derived from barter
agreements. Approximately 10% of our revenues in 1998 and approximately 7% of
our revenues in 1999 were derived from agreements where we traded advertisements
on About.com in exchange for advertisements on other web sites without receiving
any cash payments. We expect that these barter revenues will account for less
than 10% of our total annual revenues in the future.
Our costs of revenues combined with our operating expenses have exceeded our
revenues for all quarters. We have historically funded our operations by selling
our stock and not by generating income from our business. At December 31, 1999,
our accumulated deficit was $81.8 million. We expect to continue to lose money
for the foreseeable future because we plan to continue to incur significant
expenses.
FLUCTUATIONS IN OUR OPERATING RESULTS MAY NEGATIVELY IMPACT OUR STOCK PRICE.
Our quarterly operating results may fluctuate significantly in the future
due to a variety of factors that could affect our revenues or our expenses in
any particular quarter. It is possible that in some future periods our results
of operations may be below the expectations of public market analysts and
investors. In this event, the price of our common stock is likely to fall.
You should not rely on our results of operations during any particular
quarter as an indication of our results for a full year or any other quarter.
Factors that may affect our quarterly results include:
- the demand for advertising on About.com;
- the number of Internet users on, and the frequency of their use of,
About.com, since our advertising revenues are typically based on user
traffic;
- our ability to attract and retain advertisers and electronic commerce
partners;
- fees we may pay for distribution or content or other costs we may incur as
we expand our operations;
- our ability to meet the minimum number of advertisements that we are
required to deliver to users by many of our advertising contracts, since
our failure to do this would result in our deferring recognition of the
related revenues and would reduce our available advertising inventory in
subsequent periods;
- changes in rates paid for advertising on About.com; and
- the timing and amount of our costs related to advertising sales and
marketing efforts.
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Our operating expenses are based in part on our expectations of our future
revenues and are relatively fixed in the short term. Given our limited operating
history and our difficulties in accurately estimating the user traffic
historically experienced on our website, user traffic on our website is
difficult to forecast accurately. Consequently, since revenues from Internet
advertising will make up a significant amount of our revenues for the
foreseeable future, our revenues are difficult to forecast accurately. In
particular, we intend to continue to expend significant amounts to build and
enhance brand awareness of About.com. We may be unable to adjust spending
quickly enough to offset any unexpected revenue shortfall. If we have a
shortfall in revenues in relation to our expenses, or if our expenses precede
increased revenues, then our results of operations and financial condition would
be materially adversely affected.
WE WILL ONLY BE ABLE TO EXECUTE OUR BUSINESS PLAN IF INTERNET USAGE GROWS.
Our business would be adversely affected if Internet usage does not grow.
Internet usage may be inhibited for any of the following reasons:
- the Internet infrastructure may not be able to support the demands placed
on it, and its performance and reliability may decline as usage grows;
- security and authentication concerns with respect to the transmission over
the Internet of confidential information, such as credit card numbers, and
attempts by unauthorized computer users, so-called hackers, to penetrate
online security systems; and
- privacy concerns, including those related to the ability of web sites to
gather user information without the user's knowledge or consent.
WE WILL ONLY BE ABLE TO EXECUTE OUR BUSINESS PLAN IF INTERNET ADVERTISING
INCREASES.
Our business, results of operations and financial condition would be
materially adversely affected if the Internet advertising market develops more
slowly than we expect or if we are unsuccessful in increasing our advertising
revenues. Revenues from Internet advertising will make up a significant amount
of our revenues for the foreseeable future. Since the Internet advertising
market is new and rapidly evolving, we cannot yet gauge its effectiveness as
compared to traditional advertising media.
The adoption of Internet advertising, particularly by those entities that
have historically relied upon traditional media for advertising, requires the
acceptance of a new way of conducting business, exchanging information and
advertising products and services. Advertisers that have traditionally relied
upon other advertising media may be reluctant to advertise on the Internet.
These businesses may find Internet advertising to be less effective than
traditional advertising media for promoting their products and services. Many
potential advertising and electronic commerce partners have little or no
experience using the Internet for advertising purposes. Consequently, they may
allocate only limited portions of their advertising budgets to Internet
advertising.
Advertisers and electronic commerce marketers may not advertise on About.com
or may pay less for advertising on About.com if they do not believe that they
can reliably measure the effectiveness of Internet advertising or the
demographics of the user viewing their advertisements. We use both internal
measurements and measurements provided to us by third parties. If these third
parties are unable to continue to provide these services, we would have to
perform them ourselves or obtain them from another provider. This could cause us
to incur additional costs or cause interruptions in our business while we are
replacing these services. In addition, we are implementing additional systems
designed to record demographic data on our customers. If we do not implement
these systems successfully, we may not be able to accurately evaluate the
demographic characteristics of our customers. Moreover, "filter" software
programs that limit or prevent advertising from being delivered to an Internet
user's computer are available. Widespread adoption of this software could
adversely affect the commercial viability of Internet advertising.
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To the extent that minimum guaranteed impression levels are not met over the
contract period, we defer recognition of the corresponding pro rata portion of
the revenues related to such unfulfilled obligation until the guaranteed
impression levels are achieved. Advertising based on impressions, or the number
of times an advertisement is delivered to users, represents substantially all of
our current revenues. To the extent that minimum impression levels are not
achieved for any reason, we may be required to provide additional impressions
after the contract term, which would reduce our advertising inventory.
Our revenues could be adversely affected if we are unable to adapt to other
Internet advertising pricing models if they are adopted. It is difficult to
predict which, if any, pricing models for Internet advertising will emerge as
industry standards. This makes it difficult to project our future advertising
rates and revenues.
WE MAY NOT BE ABLE TO ADAPT AS INTERNET TECHNOLOGIES AND CUSTOMER DEMANDS
CONTINUE TO EVOLVE.
To be successful, we must adapt to rapidly changing Internet technologies by
continually enhancing About.com and introducing new services to address our
users' changing demands. We could incur substantial costs if we need to modify
our services or infrastructure in order to adapt to changes affecting providers
of Internet services. Our business, results of operations and financial
condition could be materially adversely affected if we incurred significant
costs to adapt, or cannot adapt, to these changes.
THE DEVELOPMENT OF OUR BRAND IS ESSENTIAL TO OUR FUTURE SUCCESS.
If our brand marketing efforts are unsuccessful, our business, financial
condition and results of operations would be materially adversely affected. In
order to build our brand awareness, we must succeed in our brand marketing
efforts, provide high-quality services and increase user traffic on About.com.
These efforts have required, and will continue to require, significant expenses.
WE MAY NOT BE ABLE TO COMPETE SUCCESSFULLY.
Competition could result in less user traffic to About.com, price reductions
for our advertising inventory, reduced margins or loss of market share, any of
which would have a material adverse effect on our business, results of
operations and financial condition. We face intense competition for users and
for advertisers. We expect this competition to increase because there are no
substantial barriers to entry in our market. Competition may also increase as a
result of industry consolidation. We may not be able to compete successfully.
We believe that many of our existing competitors, as well as potential new
competitors, have longer operating histories, greater name recognition, larger
customer bases and significantly greater financial, technical and marketing
resources than we do. This may allow them to devote greater resources than we
can to the development and promotion of their services. These competitors may
also engage in more extensive research and development, adopt more aggressive
pricing policies and make more attractive offers to existing and potential
employees, guides, distribution partners and advertisers. Our competitors may
develop services that are equal or superior to About.com or that achieve greater
market acceptance than About.com.
In addition, current and potential competitors have established or may
establish cooperative relationships among themselves or with third parties to
increase the ability of their services to address the needs of advertisers and
electronic commerce marketers. As a result, it is possible that new competitors
may emerge and rapidly acquire significant market share.
For more information, please see "Business--Competition."
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WE DEPEND ON RELATIONSHIPS WITH THIRD PARTIES.
Our business, results of operations and financial condition could be
materially adversely affected if we do not establish and maintain distribution
relationships on commercially reasonable terms or if any of our distribution
relationships do not result in increased user traffic on About.com. A portion of
the users who come to About.com come from third-party web sites with which we
have non-exclusive, short-term distribution relationships. Since these web sites
may not attract significant numbers of users themselves, About.com may not
receive a significant number of additional users from these relationships.
Moreover, we may have to pay significant fees to establish additional
relationships or maintain existing relationships in the future.
We have entered into, and may continue to enter into, agreements with
advertisers or other third-party web sites that require us to exclusively
feature these parties for certain aspects of About.com. These exclusivity
agreements may limit our ability to enter into other advertising or sponsorship
agreements or other strategic relationships. Many companies we may pursue for
strategic relationships also offer competing services. As a result, these
competitors may be reluctant to enter into strategic relationships with us.
WE MAY NOT EFFECTIVELY MANAGE OUR GROWTH.
In order to execute our business plan, we must grow significantly. This
growth will place a significant strain on our personnel, management systems and
resources. If we do not manage growth effectively, our business, results of
operations and financial condition would be materially adversely affected. We
expect that the number of our employees, including management-level employees,
will continue to increase for the foreseeable future. In addition, we expect
that the number of guides will continue to increase as new topic-specific sites
are established. We must continue to improve our operational and financial
systems and managerial controls and procedures, and we will need to continue to
expand, train and manage our workforce. We must also maintain close coordination
among our technical, accounting, finance, marketing, sales and editorial
organizations.
REGULATORY AND LEGAL UNCERTAINTIES COULD HARM OUR BUSINESS.
Any new law or regulation pertaining to the Internet, or the application or
interpretation of existing laws, could decrease the demand for our network,
increase our cost of doing business or otherwise have a material adverse effect
on our business, results of operations and financial condition. There are, and
will be, an increasing number of laws and regulations pertaining to the
Internet. These laws or regulations may relate to liability for information
retrieved from or transmitted over the Internet, online content regulation, user
privacy, taxation and the quality of products and services. Moreover, the
applicability to the Internet of existing laws governing intellectual property
ownership and infringement, copyright, trademark, trade secret, obscenity,
libel, employment, personal privacy and other issues is uncertain and
developing.
WE MAY BE LIABLE FOR THE CONTENT WE MAKE AVAILABLE ON THE INTERNET.
We make content available on About.com and on the web sites of our
advertisers and distribution and syndication partners. The availability of this
content could result in claims against us based on a variety of theories,
including defamation, obscenity, negligence, copyright or trademark
infringement. Other claims may be brought based on the nature, publication and
distribution of our content or based on errors or false or misleading
information provided on About.com, including information deemed to constitute
professional advice such as legal, medical, financial or investment advice. We
could also be exposed to liability for third-party content accessed through
About.com's links to other websites or posted by users in chat rooms or bulletin
boards offered on our topic-specific sites. Our financial condition could be
materially adversely affected if we were found liable for information that we
make available. Implementing measures to reduce
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our exposure to this liability may require us to spend substantial resources and
limit the attractiveness of our services to customers.
IF WE ARE UNABLE TO SUCCESSFULLY INTEGRATE COMPLETED AND FUTURE ACQUISITIONS
INTO OUR OPERATION, THERE COULD BE AN ADVERSE EFFECT ON OUR BUSINESS AND RESULTS
OF OPERATIONS.
We have and may continue to acquire complementary businesses, products and
technologies in the future. Some of the risks attendant to these acquisitions
are:
- difficulties and expenses of integrating the operations and personnel of
acquired companies into our operations while preserving the goodwill of
the acquired entity;
- the additional financial resources that may be needed to fund the
operations of acquired companies;
- the potential disruption of our business;
- our management's ability to maximize our financial and strategic position
by incorporating acquired technology or businesses;
- the difficulty of maintaining uniform standards, controls, procedures and
policies;
- the potential loss of key employees of acquired companies;
- the impairment of relationships with employees and customers as a result
of changes in management; and
- increasing competition with other entities for desirable acquisition
targets.
Any of the above risks could prevent us from realizing significant benefits
from our acquisitions. In addition, the issuance of our common stock in
acquisitions will dilute our stockholder interests, while the use of cash will
deplete our cash reserves. Finally, if we are unable to account for our
acquisitions under the "pooling of interests" method of accounting, we may incur
significant, one-time write-offs and amortization charges. These write-offs and
charges could decrease our future earnings or increase our future losses.
WE COULD INCUR SIGNIFICANT WITHHOLDING TAXES AND EMPLOYEE BENEFITS EXPENSES IF
THE GUIDES WERE DEEMED TO BE OUR EMPLOYEES RATHER THAN INDEPENDENT CONTRACTORS.
One or more jurisdictions or taxing authorities, including the Internal
Revenue Service, may seek to treat the guides as our employees rather than
independent contractors. As a result, they may seek to impose taxes, interest or
penalties on us. In addition, employees are generally entitled to healthcare and
other benefits that are typically unavailable to independent contractors. Since
we believe that the guides are independent contractors, we would vigorously
oppose any claim to the contrary. However, our efforts to do so might not be
successful. We are not able to estimate accurately the quantitative effect that
these taxes or employee benefit costs would have on us if the guides were deemed
to be employees. Our business, results of operations and financial condition
would be materially adversely affected if these claims are made and we do not
prevail or if we are required to treat the guides as employees for tax or
employee benefit purposes or otherwise.
WE DEPEND ON OUR KEY EXECUTIVES AND WILL NEED ADDITIONAL PERSONNEL TO GROW OUR
BUSINESS.
Our future success depends, in part, on the continued service of our key
management personnel, particularly Mr. Scott P. Kurnit, our Chief Executive
Officer, and Mr. William C. Day, our President and Chief Operating Officer.
Although we are the beneficiary of a key person life insurance policy on
Mr. Kurnit's life, the loss of his services, or the services of other key
employees, would have a material adverse effect on our business, results of
operations and financial condition. Our future success also
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depends on our ability to attract, retain and motivate highly skilled employees,
including advertising sales personnel. Competition for employees in our industry
is intense. We may be unable to attract, assimilate or retain other highly
qualified employees in the future. We have from time to time in the past
experienced, and we expect to continue to experience in the future, difficulty
in hiring and retaining highly skilled employees with appropriate
qualifications.
THE PERFORMANCE OF ABOUT.COM IS CRITICAL TO OUR BUSINESS AND TO OUR REPUTATION.
Any system failure, including network, software or hardware failure, that
causes an interruption in our network or a decrease in responsiveness of
About.com could result in reduced user traffic on About.com and reduced revenue.
About.com has in the past experienced slower response times and interruptions in
service for a variety of reasons. About.com could also be affected by computer
viruses, electronic break-ins or other similar disruptions. Our insurance
policies have low coverage limits and therefore our insurance may not adequately
compensate us for any losses that may occur due to any interruptions to our
network.
In January 1998, we entered into an Internet-hosting agreement with
GlobalCenter, Inc. to maintain all of our production servers at GlobalCenter's
Manhattan Data Center. This agreement was extended in January 1999 and is
terminable by either party upon 90 days' notice. Our operations depend on
GlobalCenter's ability to protect its and our systems against damage from fire,
power loss, water damage, telecommunications failures, vandalism and other
malicious acts, and similar unexpected adverse events. Any disruption in the
Internet access provided by GlobalCenter could have a material adverse effect on
our business, results of operations and financial condition.
Our users and our guides depend on Internet service providers, online
service providers and other web site operators for access to About.com. Each of
these providers has experienced significant outages in the past, and could
experience outages, delays and other difficulties due to system failures
unrelated to our systems.
WE MAY BE UNABLE TO PROTECT OUR INTELLECTUAL PROPERTY AND WE MAY BE LIABLE FOR
INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS.
Third parties may infringe or misappropriate our patents, trademarks or
other intellectual property, which could have a material adverse effect on our
business, results of operations or financial condition. While we enter into
confidentiality agreements with our material employees, guides, consultants and
strategic partners, and generally control access to and distribution of our
proprietary information, the steps we have taken to protect our intellectual
property may not prevent misappropriation. In addition, we do not know whether
we will be able to defend our proprietary rights since the validity,
enforceability and scope of protection of proprietary rights in Internet-related
industries is still evolving.
Third parties may assert infringement claims against us. From time to time
in the ordinary course of business we have been, and we expect to continue to
be, subject to claims of alleged infringement of the trademarks and other
intellectual property rights of third parties. These claims and any resultant
litigation, should it occur, could subject us to significant liability for
damages. In addition, even if we prevail, litigation could be time-consuming and
expensive to defend, and could result in the diversion of our time and
attention. Any claims from third parties may also result in limitations on our
ability to use the intellectual property subject to these claims unless we are
able to enter into agreements with the third parties making these claims.
SEASONAL FACTORS MAY AFFECT OUR QUARTERLY OPERATING RESULTS.
Seasonality of user traffic on About.com and our advertising revenues may
cause our total revenues to fluctuate. User traffic on web sites has typically
declined during the summer and year-end vacation and holiday periods. We believe
that advertising sales in traditional media, such as television and radio,
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generally are lower in the first and third calendar quarters of each year.
Similar seasonal or other patterns may develop in our business.
WE CANNOT PREDICT OUR FUTURE CAPITAL NEEDS AND WE MAY NOT BE ABLE TO SECURE
ADDITIONAL FINANCING.
We may need to raise additional funds in the future in order to fund more
aggressive brand promotion or more rapid expansion, to develop new or enhanced
services, to respond to competitive pressures or to make acquisitions. Any
required additional financing may not be available on terms favorable to us, or
at all. If adequate funds are not available on acceptable terms, we may be
unable to fund our expansion, successfully promote our brand, or take advantage
of acquisition opportunities, develop or enhance services, respond to
competitive pressures or take advantage of acquisition opportunities, any of
which could have a material adverse effect on our business, results of
operations and financial condition. If additional funds are raised by our
issuing equity securities, stockholders may experience dilution of their
ownership interest and the newly issued securities may have rights superior to
those of the common stock. If additional funds are raised by our issuing debt,
we may be subject to limitations on our operations, including limitations on the
payment of dividends. We currently anticipate that the net proceeds from our
latest offering, together with currently available funds, will be sufficient to
meet our anticipated needs through at least 2000.
OUR OFFICERS AND DIRECTORS HAVE SIGNIFICANT INFLUENCE OVER US.
Our executive officers and directors, in the aggregate, beneficially own
approximately 20.5% of the common stock. These stockholders may be able to
exercise control over all matters requiring approval by our stockholders,
including the election of directors and approval of significant corporate
transactions. This concentration of ownership may also have the effect of
delaying or preventing a change in control of us, which could have a material
adverse effect on our stock price.
OUR STOCK PRICE HAS BEEN AND MAY CONTINUE TO BE VOLATILE.
The market price of our common stock has fluctuated in the past and is
likely to continue to be highly volatile and could be subject to wide
fluctuations. In addition, the Nasdaq National Market, where most publicly held
Internet companies are traded, has experienced extreme price and volume
fluctuations. These fluctuations often have been unrelated or disproportionate
to the operating performance of these companies. These broad market and industry
factors may materially adversely affect the market price of our common stock,
regardless of our actual operating performance. In the past, following periods
of volatility in the market price of a company's securities, securities class
action litigation often has been instituted against that company. Litigation
like this, if instituted, could result in substantial costs and a diversion of
management's attention and resources.
21
<PAGE>
ITEM 2: PROPERTIES
We are headquartered at 220 East 42nd Street, New York, New York, where we
lease an aggregate of approximately 42,000 square feet of space covering three
floors. The leases on these floors expire between 2000 and 2003. We also entered
into a six-month lease for approximately 3,000 square feet of commercial space
in Westchester, New York.
On December 31, 1999 we entered into a lease for approximately 169,000
square feet on six floors of the building located at 1440 Broadway, New York,
New York for our new corporate headquarters. Initially, the area within the
building available to us will be approximately 79,700 square feet, and will
increase over the next several years to approximately 169,000 square feet. The
term of the lease is for 15 years and provides for an option to extend the term
for an additional 5 years. The lease also provides for options to expand our
space within the building by up to an additional 3 floors.
We lease an office of approximately 5,000 square feet at 375 Franklin Road,
Marietta, Georgia that expires in February 2000 and provides for an option to
expand our space within the building by up to approximately 4,300 square feet.
We also lease a sales office of approximately 3,515 square feet located at 120
Montgomery Street, San Francisco, California that expires in July 2002. We lease
an office at 1508 North Technology Way, Orem, Utah that expires in July 2004 and
covers approximately 6,600 square feet. We lease an office at 85 Wells Avenue,
Newton, Massachusetts that expires in November 2002 and is for approximately
11,100 square feet. In addition, we lease a product development office at 360
North Robert Street, St. Paul, Minnesota that expires in 2002 and covers
approximately 1,730 square feet. We also lease an office of approximately
4200 square feet located at 320 Congress Street, Boston, Massachusetts that
expires in December 2000.
ITEM 3: LEGAL PROCEEDINGS
None.
ITEM 4: SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
22
<PAGE>
PART II
ITEM 5: MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
PRICE RANGE OF COMMON STOCK
Since May 20, 1999, our common stock has been traded on the Nasdaq National
Market under the symbol "BOUT." From March 24, 1999 until May 19, 1999, our
common stock was traded on the Nasdaq National Market under the symbol "MINE."
The following table sets forth, for the periods indicated, the high and low
sales prices per share for our common stock as reported by the Nasdaq National
Market:
<TABLE>
<CAPTION>
PRICE RANGE OF
COMMON STOCK
-----------------------------
HIGH LOW
------------- -------------
<S> <C> <C>
Year Ended December 31, 1999:
First Quarter (from March 24, 1999)......................... $89 1/2 $46 7/16
Second Quarter.............................................. 100 23
Third Quarter............................................... 58 3/4 19 1/2
Fourth Quarter.............................................. 94 3/4 40 1/2
</TABLE>
HOLDERS
On March 28, 2000, the reported last sale price for our common stock on the
Nasdaq National Market was $89 7/8 per share. As of February 15, 2000, there
were 152 holders of record of our common stock. In addition, there were
approximately 6,800 beneficial owners of our common stock, representing persons
whose stock is in nominee or "street name" accounts through brokers.
RECENT SALES OF UNREGISTERED SECURITIES
On December 14, 1999, we issued an aggregate of 501,585 shares of common
stock in exchange for all of the outstanding capital stock of North Sky, Inc.
On January 27, 2000, we issued an aggregate of 496,651 shares of our common
stock in exchange for all of the oustanding capital stock of
ExpertCentral.com, Inc.
On March 27, 2000, we issued 406,673 shares of common stock in exchange for
all of the outstanding capital stock of Sombasa Media Inc.
USE OF PROCEEDS FROM IPO
On March 29, 1999, we consummated the initial public offering of 3,450,000
shares of our common stock and a concurrent private placement of 107,527 shares
of our common stock (collectively, the "Initial Public Offering"). Net proceeds
from the Initial Public Offering were approximately $81.0 million.
From March 31, 1999 to December 31, 1999, we used approximately $55 million
of the proceeds from the Initial Public Offering for general corporate purposes,
capital expenditures, marketing expenditures related to marketing and branding
campaigns, the payment of debt obligations and cash paid in connection with the
acquisition of VantageNet.
On November 3, 1999 and November 17, 1999, we consummated the follow-on
offering of 3,110,000 shares of our common stock (the "Follow-on Offering"). Net
proceeds from the Follow-on Offering were approximately $145.7 million.
DIVIDEND POLICY
We have not declared or paid any cash dividends on our capital stock since
inception and do not expect to pay any cash dividends for the foreseeable
future. We currently intend to retain future earnings, if any, to finance the
expansion of our business.
23
<PAGE>
ITEM 6: SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated financial data set forth below with respect to
About.com's consolidated statement of operations for each of the years ended
December 31, 1999, 1998 and 1997 and with respect to About.com's consolidated
balance sheet as of December 31, 1999 and 1998 have been derived from the
audited consolidated financial statements that are included elsewhere herein.
The selected consolidated financial data set forth with respect to About.com's
statement of operations for the period ended December 31, 1996 and with respect
to About.com's balance sheet as of December 31, 1997 and 1996 are derived from
the audited financial statements of About.com which are not included herein. The
selected consolidated financial data set forth below is qualified in its
entirety by, and should be read in conjunction with, "Management's Discussion
and Analysis of Financial Condition and Results of Operations" and the
consolidated financial statements and the notes to those statements included
elsewhere herein.
<TABLE>
<CAPTION>
PERIOD FROM
JUNE 27,
1996
YEAR ENDED DECEMBER 31, (INCEPTION) TO
------------------------------ DECEMBER 31,
1999 1998 1997 1996
-------- -------- -------- --------------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
Consolidated Statement of Operations Data:
Revenues............................................ $ 26,962 $ 3,722 $ 391 $ --
Gross profit (loss)................................. 9,351 (494) (1,540) (91)
Total operating expenses............................ 67,821 14,398 6,801 2,290
Loss from operations................................ (58,471) (14,892) (8,341) (2,381)
Net loss............................................ (55,096) (15,578) (8,640) (2,438)
Net loss attributable to common stockholders........ (55,756) (16,808) (8,640) (2,438)
Basic and diluted net loss per common share......... (5.30) (9.71) (4.94) (1.20)
Weighted average shares outstanding used in basic
and diluted net loss per common share
calculation....................................... 10,519 1,732 1,749 2,035
</TABLE>
<TABLE>
<CAPTION>
AS OF DECEMBER 31,
-----------------------------------------
1999 1998 1997 1996
-------- -------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Consolidated Balance Sheet Data:
Cash and cash equivalents and short-term investments.... $161,714 $10,644 $ 303 $1,647
Long-term investments................................... 14,200 -- -- --
Working capital......................................... 157,940 4,231 (3,098) 1,195
Total assets............................................ 242,081 15,658 1,357 2,039
Convertible notes payable............................... -- -- 4,851 --
Notes payable, excluding current portion................ 695 621 3,630 3,972
Convertible preferred stock............................. -- 32,072 -- --
Total stockholders' (deficit) equity.................... 225,160 (24,662) (10,944) (2,425)
</TABLE>
24
<PAGE>
QUARTERLY RESULTS OF OPERATIONS
The following table sets forth certain unaudited consolidated quarterly
statement of operations data for the eight quarters ended December 31, 1999.
This information is unaudited, but in the opinion of management, it has been
prepared substantially on the same basis as the audited consolidated financial
statements appearing elsewhere in this report, and all necessary adjustments,
consisting only of normal recurring adjustments, have been included in the
amounts stated below to present fairly the unaudited consolidated quarterly
results of operations. The consolidated quarterly data should be read in
conjunction with our audited consolidated financial statements and the notes to
such statements appearing elsewhere in this report. The results of operations
for any quarter are not necessarily indicative of the results of operations for
any future period.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
----------------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31, MARCH 31,
1998 1998 1998 1998 1999
--------- --------- ------------- ------------ ---------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
Revenues............... $ 152 $ 396 $ 1,030 $ 2,144 $ 2,367
Gross profit (loss).... (411) (347) (202) 466 (3,572)
Total operating
expenses............. 1,536 2,359 4,084 6,419 8,368
Loss from operations... (1,947) (2,706) (4,286) (5,953) (11,940)
Net loss............... (2,425) (2,799) (4,356) (5,998) (11,922)
Net loss attributable
to common
stockholders......... (2,425) (3,062) (4,748) (6,573) (12,582)
Basic and diluted net
loss per common
share................ (1.43) (1.65) (2.69) (3.79) (4.07)
Weighted average shares
outstanding used in
basic and diluted net
loss per common share
calculation.......... 1,696 1,700 1,767 1,173 3,095
<CAPTION>
THREE MONTHS ENDED
-----------------------------------------
JUNE 30, SEPTEMBER 30, DECEMBER 31,
1999 1999 1999
---------- ------------- ------------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
Revenues............... $ 3,707 $ 7,884 $ 13,004
Gross profit (loss).... 779 3,789 8,355
Total operating
expenses............. 22,272 17,642 19,539
Loss from operations... (21,493) (13,853) (11,184)
Net loss............... (20,693) (13,173) (9,308)
Net loss attributable
to common
stockholders......... (20,693) (13,173) (9,308)
Basic and diluted net
loss per common
share................ (1.71) (1.08) (0.63)
Weighted average shares
outstanding used in
basic and diluted net
loss per common share
calculation.......... 12,083 12,205 14,673
</TABLE>
25
<PAGE>
ITEM 7: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
YOU SHOULD READ THE FOLLOWING DISCUSSION OF THE FINANCIAL CONDITION AND RESULTS
OF OPERATIONS OF ABOUT.COM TOGETHER WITH THE CONSOLIDATED FINANCIAL STATEMENTS
AND THE NOTES TO SUCH STATEMENTS INCLUDED ELSEWHERE IN THIS REPORT. THIS
DISCUSSION CONTAINS FORWARD-LOOKING STATEMENTS BASED ON OUR CURRENT
EXPECTATIONS, ASSUMPTIONS, ESTIMATES AND PROJECTIONS ABOUT ABOUT.COM AND OUR
INDUSTRY. THESE FORWARD-LOOKING STATEMENTS INVOLVE RISKS AND UNCERTAINTIES.
ABOUT.COM'S ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE ANTICIPATED IN
THESE FORWARD-LOOKING STATEMENTS AS A RESULT OF CERTAIN FACTORS, AS MORE FULLY
DESCRIBED IN THE "RISK FACTORS" SECTION AND ELSEWHERE IN THIS REPORT. WE
UNDERTAKE NO OBLIGATION TO UPDATE PUBLICLY ANY FORWARD-LOOKING STATEMENTS FOR
ANY REASON, EVEN IF NEW INFORMATION BECOMES AVAILABLE OR OTHER EVENTS OCCUR IN
THE FUTURE.
OVERVIEW
For the period from our incorporation on June 27, 1996 through April 1997,
our operating activities related primarily to the initial development of
ABOUT.COM, recruitment of employees and guides, and the establishment of our
organizational and technical infrastructure. Since the launch of our network in
April 1997, revenues and operating expenses have increased as we enhanced our
network of guides, expanded our editorial and operating staff, improved
ABOUT.COM's functions and features and promoted ABOUT.COM to increase brand
awareness. As part of our marketing efforts, we have conducted online campaigns
and, beginning in June 1998, an offline campaign consisting of a national trade
magazine print campaign, and outdoor and radio advertisements in selected
cities. In the second quarter of 1999, we conducted a significant offline
campaign consisting of a national print and television advertising campaign in
connection with the launch of the About.com brand.
To date, we have derived substantially all of our revenues from the sale of
advertisements on ABOUT.COM. We expect to derive our revenues principally from
the sale of advertising on ABOUT.COM for the foreseeable future. We currently
offer advertisers numerous sizes and types of advertising placements, including
banner advertisements, button advertisements and text links. We also offer
sponsorship programs and other promotional opportunities to build brand
awareness and drive user traffic to an advertiser's web site. To date, sales of
advertisements on ABOUT.COM have been generated primarily by our internal
advertising sales organization.
Advertisers on ABOUT.COM enter into agreements of typically between two
months and two years in duration. Pursuant to these agreements, we generally
guarantee a minimum number of impressions, or the number of times that an
advertisement is delivered to users of ABOUT.COM, to be delivered over a
specified period of time at a fixed rate. Revenues from advertising sales are
recognized ratably in the period in which the advertisement is displayed,
provided that we have no significant remaining obligations, at the lesser of the
ratio of impressions delivered over total guaranteed impressions or the straight
line basis over the term of the contract, and collection of the resulting
receivable is probable. Payments received from advertisers prior to displaying
their advertisements on ABOUT.COM are recorded as deferred revenues and are
recognized as revenues ratably as the advertisements are displayed. To the
extent these minimum guaranteed impression levels are not met ratably over the
contract period, we defer recognition of the corresponding pro rata portion of
the revenues related to such unfulfilled obligation until the guaranteed
impression levels are achieved. When there is no guarantee that we deliver a
minimum number of impressions over a specified period, we recognize revenue in
the period in which the impressions are delivered.
26
<PAGE>
Some agreements with advertisers entitle us to a share of revenues generated
by sales of merchandise and services over a particular threshold resulting from
direct links from ABOUT.COM. Through December 31, 1999, we had not recognized
any material revenues from these revenue sharing agreements. Any revenues we
derive from these revenue sharing agreements will be recognized upon
notification from our advertisers of sales attributable to ABOUT.COM.
Our agreements with our channel partners are typically at least 12 months in
duration and generally require our partners to make payments to us for
development, placement and advertising payments. We recognize any development
fees and placement fees ratably over the term of the agreement.
Approximately 7% of our revenues during the year ended December 31, 1999 and
approximately 10% of our revenues for the year ended December 31, 1998 were
generated by agreements where we traded advertisements on ABOUT.COM in exchange
for advertisements on third-party web sites without receiving any cash payment.
The corresponding expenses from these barter arrangements, which equal the
amount of the barter revenues from these arrangements, are included as a
component of cost of revenues. We anticipate that barter revenues will continue
to account for less than 10% of our total annual revenues.
Guide compensation is included as a component of cost of revenues. We
currently compensate guides at an amount equal to the greater of a monthly
minimum guarantee or a percentage of net advertising revenues generated in the
ABOUT.COM network. This revenue is distributed among the guides based on the
user traffic on their respective topic-specific sites as a percentage of traffic
for the whole network. Guides are also currently entitled to share a percentage
of net transaction revenues and net syndication revenues.
In connection with our initial public offering, we granted fully vested,
non-qualified stock options to purchase 199,500 shares of common stock to a
substantial majority of our guides. The exercise price per share of these
options was $25.00 and the options have two-year terms. Since the guides are
independent contractors, we recorded non-cash compensation expense of
approximately $3.6 million during the quarter ended March 31, 1999, representing
the fair market value of the options at the date of grant. This amount is
presented in a separate line item above the gross profit (loss) line.
Through December 31, 1999, we had recorded deferred compensation expense of
approximately $4.5 million in connection with the grant of stock options to
employees and directors, representing the difference between the deemed value of
the common stock at the date of grant for accounting purposes and the exercise
price of the related options. We amortize this non-cash expense over the vesting
period, typically four years, of the applicable options. Amortization of
deferred compensation expense was $1.1 million and $478,000 for the years ended
December 31, 1999 and 1998, respectively, of which $19,000 and $27,000 related
to deferred compensation expense for the grant of options to operations
personnel and has been included in the non-cash compensation expense line item
appearing above the gross profit (loss) line. We currently expect to amortize
the following amounts of deferred compensation expense annually:
2000--$0.6 million; 2001--$0.6 million; and 2002--$0.6 million. Such amount is
net of certain options which were forfeited in January 2000 and resulted in a
$1.1 million reduction in deferred compensation.
In June 1999, we acquired VantageNet, Inc. In connection with this
acquisition, we recorded goodwill and purchased intangibles of $2.5 million. We
are amortizing the goodwill and purchased intangibles related to this
acquisition over the expected period of benefit of 3 years.
In December 1999, we acquired North Sky, Inc. In connection with this
acquisition, we recorded goodwill and purchased intangibles of $37.7 million. We
are amortizing the goodwill and purchased intangibles related to this
acquisition over the expected period of benefit of 3 years.
RESULTS OF OPERATIONS
REVENUES. Revenues grew to approximately $27.0 million in 1999 from
$3.7 million for the year ended December 31, 1998 and $391,000 for the year
ended 1997. Barter revenue included in these amounts
27
<PAGE>
was $1.9 million, $366,000 and $73,000, respectively. This growth was primarily
attributable to an increase in (1) the number of advertisers and the average
commitment per advertiser, (2) user traffic on ABOUT.COM and (3) the number of
our sales people. During the year ended December 31, 1998, we derived 12%, or
$450,000, of our revenues from an advertising arrangement with Citibank, which
ended on December 31, 1998.
COST OF REVENUES. Cost of revenues consists primarily of guide
compensation, site hosting and depreciation costs incurred in connection with
developing our service, staff costs and related expenses of operations personnel
and barter advertising expenses. Cost of revenues were $14.0 million,
$4.2 million and $1.9 million for the years ended December 31, 1999, 1998 and
1997, respectively. This period-to-period growth in cost of revenues was
primarily attributable to an increase in the fees paid to guides, which
increased by $2.7 million from 1998 to 1999 and an additional $1.0 million from
1997 to 1998, and in site hosting and operations costs, which increased by
$5.1 million from 1998 to 1999 and an additional $0.6 million from 1997 to 1998,
which was due to growth in user traffic on ABOUT.COM combined with increased
staff costs necessary to support the expansion of our service.
NON-CASH COMPENSATION EXPENSE. For the years ended December 31, 1999 and
1998, amortization of deferred compensation expense relating to stock options
granted to operations personnel was $19,000 (excluding $3.6 million related to
guides) and $27,000, respectively. There were no non-cash compensation expenses
for the year ended December 31, 1997.
SALES AND MARKETING. Sales and marketing expenses consist primarily of
salaries and related expenses of sales and marketing personnel, sales
commissions, advertising, public relations and research. Sales and marketing
expenses were $48.6 million for the year ended December 31, 1999, $7.9 million
for the year ended December 31, 1998, and $1.8 million for the year ended
December 31, 1997. This period-to-period increase in sales and marketing
expenses was primarily attributable to the increased offline marketing and the
expansion of online advertising efforts, as well as increased sales and
marketing personnel and related expenses.
GENERAL AND ADMINISTRATIVE. General and administrative expenses consist
primarily of salaries and related costs for general corporate functions,
including finance, human resources, facilities and legal, along with
professional fees, bad debt expense and other general corporate expenses.
General and administrative expenses were $8.8 million, $2.9 million, and
$2.0 million for the years ended December 31, 1999, 1998 and 1997, respectively.
The increase in general and administrative expenses was primarily attributable
to increased salaries and related expenses associated with hiring additional
personnel, increased general corporate expenses and facility-related expenses
necessary to support the growth in our operations.
PRODUCT DEVELOPMENT. Product development expenses include staff and related
costs associated with the design, development and testing of ABOUT.COM and our
systems and editorial personnel costs. Product development expenses were
$8.4 million, $3.1 million and $3.0 million for the years ended December 31,
1999, 1998 and 1997, respectively. We launched our site in April 1997. Product
development expenses remained relatively constant from 1997 to 1998 due to
nonrecurring consulting fees associated with the pre-launch development of
ABOUT.COM incurred during the first six months of 1997, offset by an increase in
staffing levels in 1998. From 1998 to 1999 the increase in product development
expense was primarily staff and related expenses needed to support the growth
and development of ABOUT.COM.
NON-CASH COMPENSATION EXPENSE. For the years 1999 and 1998, amortization of
deferred compensation relating to stock options granted to non-operations
personnel amounted to $1.1 million and $451,000, respectively.
OTHER INCOME (EXPENSE), NET. Other income (expense), net was $3.4 million,
$(686,000) and $(299,000) for the years ended December 31, 1999, 1998 and 1997.
The change from 1998 to 1999 was related to increased interest income as a
result of our initial public offering and follow-on offering. The
28
<PAGE>
change from 1997 to 1998 was primarily attributable to interest accrued on
outstanding debt obligations and amortization of debt discount. During 1997, we
provided consulting services to Citibank for an aggregate amount of $450,000.
Pursuant to our agreement with Citibank, we agreed to provide strategic
assistance in creating, supporting and managing customized web sites around
which communities on specific areas of interest for the financial institution's
customers would be created. The term of the agreement was from June 20, 1997
through December 15, 1997. Fees generated by these services, net of expenses,
were recorded as other income, net, of which $350,000 was recorded for the year
ended December 31, 1997. We did not provide consulting services during 1998 and
do not anticipate providing consulting services in the future.
CUMULATIVE DIVIDENDS AND ACCRETION OF CONVERTIBLE PREFERRED
STOCK. Cumulative dividends and accretion on our convertible preferred stock
amounted to $659,600 and $1.2 million for the years ended December 31, 1999 and
1998, respectively.
LIQUIDITY AND CAPITAL RESOURCES
Since inception, we have financed our operations primarily through the
private placement of equity securities, the incurrence of indebtedness and the
sale of common stock in our public offerings. In March 1999, we received net
proceeds of approximately $81.0 million from our initial public offering and a
concurrent private placement of shares of our common stock. In October 1999, we
received net proceeds of approximately $140.6 million from a follow-on offering.
In November 1999, the underwriters purchased shares to cover over-allotments.
Net proceeds from this purchase were approximately $5.1 million.
To date, we have experienced negative cash flows from operating activities.
Net cash used in operating activities was $53.9 million, $9.8 million and
$6.0 million for the years ended December 31, 1999, 1998 and 1997, respectively.
Net cash used in operating activities resulted primarily from our net losses
during these periods, adjusted for certain non-cash items, and a higher level of
accounts receivable resulting from an increase in our revenues, which was
partially offset by increases in accounts payable, accrued expenses and deferred
revenue.
Net cash used in investing activities was $111.2 million, $2.9 million and
$148,000 for the years ended December 31, 1999, 1998 and 1997, respectively.
Prior to 1999, all net cash used in investing activities related to capital
expenditures, primarily for the acquisition of equipment. For the year ended
December 31, 1999, net cash used in investing activities consisted primarily of
$101.1 million related to investment in marketable securities with proceeds from
common stock, $8.5 million of capital expenditures, primarily for the
acquisition of equipment, $587,000 related to the acquisition of VantageNet,
$800,000 related to the purchase of certain intangible assets, and $183,000
related to the acquisition of North Sky.
Net cash provided by financing activities was $229.2 million, $23.1 million
and $4.8 million for the years ended December 31, 1999, 1998 and 1997,
respectively. Net cash provided by financing activities in 1997 was primarily
attributable to net proceeds received by us from the issuance of loans payable.
Net cash provided by financing activities in 1998 was primarily attributable to
net proceeds from the issuances of loans payable and preferred stock and the
exercise of warrants by investors in December 1998, and, to a lesser extent,
borrowings under a secured credit facility related to equipment financing. At
December 31, 1998, there was no additional availability under this credit
facility and the balance outstanding was $438,000, of which $154,000 is due in
1999, $157,000 in 2000 and $126,500 in 2001. For the year ended December 31,
1999, net cash provided by financing activities consisted primarily of
approximately $81.0 million in net proceeds received by us in connection with
the closing of our initial public offering and concurrent placement in
March 1999 and approximately $146.0 million of net proceeds related to the
closing of our follow-on offering.
As of December 31, 1999, we had $175.9 million of cash and cash equivalents,
short-term and long-term investments. Our principal capital commitments
consisted of obligations outstanding under capital and operating leases and a
secured credit facility. We have spent approximately $11.9 million on
29
<PAGE>
capital expenditures since inception, excluding capital lease agreements.
Although we have no material commitments for capital expenditures, we anticipate
that we will increase our capital expenditures and lease commitments consistent
with our anticipated growth in operations, infrastructure and personnel. We
currently anticipate that we will continue to experience significant growth in
our operating expenses for the foreseeable future and that our operating
expenses will be a material use of our cash resources.
Our ability to generate significant revenues is uncertain. We have incurred
substantial costs to create, launch and enhance ABOUT.COM and to grow our
business. We incurred net losses of $55.1 million, $15.6 million and
$8.6 million for the years ended December 31, 1999, 1998 and 1997, respectively.
At December 31, 1999, we had an accumulated deficit of $81.8 million. We expect
losses from operations and negative cash flow to continue for the foreseeable
future as a result of our expansion plans and our continuing significant
increases in operating expenses in the next several years. Although we have
experienced revenue growth in recent periods, our revenues may not remain at
their current level or increase in the future. If our revenues do not increase
substantially, we may not achieve profitability. Even if we achieve
profitability, we may not sustain or increase profitability on a quarterly or
annual basis in the future.
We currently believe that the net proceeds of our prior offerings, together
with our existing cash and cash equivalents short-term and long-term
investments, will be sufficient to meet our anticipated cash needs for working
capital and capital expenditures for at least the next twelve months. We may
need to raise additional funds in the future in order to fund more aggressive
brand promotion or more rapid expansion, to develop new or enhanced services, to
respond to competitive pressures or to make acquisitions. Any required
additional financing may not be available on terms favorable to us, or at all.
If adequate funds are not available or not available on acceptable terms, we may
be unable to fund our expansion, successfully promote our brand, develop or
enhance our network, respond to competitive pressures or take advantage of
acquisition opportunities, which could have a material adverse effect on our
business, results of operations and financial condition. If we raise additional
funds by issuing equity securities, stockholders may experience dilution of
their ownership interest and those securities may have rights superior to those
of the holders of the common stock. If we raise additional funds by issuing
debt, we may be subject to certain limitations on our operations, including
limitations on the payment of dividends.
YEAR 2000 COMPLIANCE
To date, our systems and software have not experienced any material
disruption due to the onset of the Year 2000, and we have completed our Year
2000 preparedness activities. However, we cannot assure that we will not
experience disruptions in the future as a consequence of the Year 2000 bug. We
cannot quantify the amount of our potential exposure, but do not believe it to
be material.
NEW ACCOUNTING PRONOUNCEMENTS
We continually assess the effects of recently issued accounting standards.
The impact of all recently adopted and issued accounting standards has been
disclosed in the Consolidated Financial Statements.
30
<PAGE>
ITEM 7A: QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
CURRENCY RATE FLUCTUATIONS. Our results of operations, financial position
and cash flows are not materially affected by changes in the relative values of
non-U.S. currencies to the U.S. dollar. We do not use derivative financial
instruments to limit our foreign currency risk exposure.
MARKET RISK. Our accounts receivable are subject, in the normal course of
business, to collection risks. We regularly assess these risks and have
established policies and business practices to protect against the adverse
effects of collection risks. As a result, we do not anticipate any material
losses in this area.
INTEREST RATE RISK. Our exposure to market rate risk for changes in
interest rates relates primarily to our investment portfolio. We have not used
derivative financial instruments in its investment portfolio. We invest our
excess cash in debt instruments of the U.S. Government and its agencies and
high-quality corporate issuers and, by policy, limit the amount of credit
exposure to any one issuer. We protect and preserve our invested funds by
limiting default, market and reinvestment risk.
Investments in both fixed rate and floating rate interest earning
instruments carry a degree of interest rate risk. Fixed rate securities may have
their fair market value adversely impacted due to a rise in their interest
rates, while floating rate securities may produce less income than expected if
interest rates fall. Due in part to these factors, our future investment income
may fall short of expectations due to changes in interest rates or we may suffer
losses in principal if forced to sell securities which have declined in market
value due to changes in interest rates.
31
<PAGE>
ITEM 8: CONSOLIDATED FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
ABOUT.COM, INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
Independent Auditors' Report................................ 33
Consolidated Balance Sheets as of December 31, 1999 and
1998...................................................... 34
Consolidated Statements of Operations for the years ended
December 31, 1999, 1998 and 1997.......................... 35
Consolidated Statements of Stockholders' (Deficit) Equity
for the years ended
December 31, 1999, 1998 and 1997.......................... 36
Consolidated Statements of Cash Flows for the years ended
December 31, 1999, 1998 and 1997.......................... 38
Notes to Consolidated Financial Statements.................. 40
Financial Statement Schedule--Valuation and Qualifying
Accounts.................................................. 64
</TABLE>
32
<PAGE>
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Stockholders
About.com, Inc.:
We have audited the accompanying consolidated balance sheets of
About.com, Inc. and subsidiaries as of December 31, 1999 and 1998, and the
related consolidated statements of operations, stockholders' (deficit) equity
and cash flows for each of the years in the three-year period ended
December 31, 1999. In connection with our audits of the consolidated financial
statements, we also have audited the financial statement schedule as listed in
the accompanying index. These consolidated financial statements and financial
statement schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated financial
statements and financial statement schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of
About.com, Inc. and subsidiaries as of December 31, 1999 and 1998, and the
results of their operations and their cash flows for each of the years in the
three-year period ended December 31, 1999 in conformity with generally accepted
accounting principles. Also, in our opinion, the related financial statement
schedule, when considered in relation to the basic consolidated financial
statements taken as a whole, present fairly, in all material respects, the
information set forth therein.
/s/ KPMG LLP
New York, New York
January 24, 2000
33
<PAGE>
ABOUT.COM, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------------
1999 1998
------------ ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................. $ 74,779,900 $ 10,644,300
Short-term investments.................................... 86,937,300 --
Accounts receivable, less allowance for doubtful accounts
of $780,000 and $146,000, respectively.................. 11,066,900 917,300
Prepaid and other current assets.......................... 1,353,900 100,000
------------ ------------
Total current assets.................................... 174,138,000 11,661,600
------------ ------------
Property and equipment, net................................. 9,401,200 3,302,000
Goodwill and other intangibles, net......................... 39,183,500 --
Long-term investments....................................... 14,196,600 --
Other assets, net........................................... 5,162,100 694,100
------------ ------------
Total assets............................................ $242,081,400 $ 15,657,700
============ ============
LIABILITIES AND STOCKHOLDERS' (DEFICIT) EQUITY
Current liabilities:
Accounts payable and accrued expenses..................... $ 13,420,800 $ 6,594,900
Guide fees payable........................................ 1,186,900 462,400
Deferred revenue.......................................... 1,018,700 --
Current portion of notes payable.......................... 411,900 154,000
Current installments of obligations under capital
leases.................................................. 157,000 219,000
------------ ------------
Total current liabilities............................... 16,195,300 7,430,300
------------ ------------
Notes payable, excluding current portion.................... 695,100 620,600
Deferred rent............................................... 21,300 47,700
Obligations under capital leases, excluding current
installments.............................................. 10,100 149,400
Redeemable convertible preferred stock, $0.001 par value:
Series A--3,346,715 shares authorized, issued and
outstanding at December 31, 1998; liquidation
preference of $1.50 per share plus unpaid dividends of
9% per annum ($5,325,700 in the aggregate at December
31, 1998)............................................... -- 5,259,700
Series B--6,597,596 shares authorized, issued and
outstanding at December 31, 1998; liquidation
preference of $1.80 per share plus unpaid dividends of
9% per annum ($12,602,100 in the aggregate at December
31, 1998)............................................... -- 12,448,300
Series C--8,717,949 shares authorized, 7,301,811 shares
issued and outstanding at December 31, 1998; liquidation
preference of $1.95 per share plus unpaid dividends of
9% per anum ($14,403,100 in the aggregate at
December 31, 1998)...................................... -- 14,363,700
Stockholders' (deficit) equity:
Preferred stock, $0.001 par value; 5,000,000 shares
authorized, no shares issued and outstanding............ -- --
Common stock, $0.001 par value; 50,000,000 shares
authorized, 16,175,367 and 2,202,558 shares isssued and
outstanding............................................. 16,200 2,200
Additional paid-in capital................................ 309,754,800 3,231,000
Deferred compensation..................................... (2,859,100) (1,238,900)
Accumulated deficit....................................... (81,752,300) (26,656,300)
------------ ------------
Total stockholders' (deficit) equity.................... 225,159,600 (24,662,000)
------------ ------------
Commitments and contingencies............................. -- --
Total liabilities and stockholders' (deficit) equity.... $242,081,400 $ 15,657,700
============ ============
</TABLE>
See accompanying notes to consolidated financial statements.
34
<PAGE>
ABOUT.COM, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------
1999 1998 1997
------------ ------------ -----------
<S> <C> <C> <C>
Revenues............................................. $ 26,962,400 $ 3,721,600 $ 390,600
Cost of revenues..................................... 13,981,100 4,188,300 1,931,000
Non-cash compensation................................ 3,630,600 27,000 --
------------ ------------ -----------
Gross profit (loss).......................... 9,350,700 (493,700) (1,540,400)
------------ ------------ -----------
Operating expenses:
Sales and marketing................................ 48,596,500 7,889,700 1,761,100
General and administrative......................... 8,772,200 2,943,900 1,993,800
Product development................................ 8,386,200 3,113,500 3,045,900
Amortization of goodwill and other intangibles..... 967,400 -- --
Non-cash compensation.............................. 1,099,000 451,000 --
------------ ------------ -----------
Total operating expenses..................... 67,821,300 14,398,100 6,800,800
------------ ------------ -----------
Loss from operations......................... (58,470,600) (14,891,800) (8,341,200)
------------ ------------ -----------
Other income (expense):
Other income, net.................................. 94,900 -- 349,800
Interest income.................................... 3,443,700 49,700 8,800
Interest expense................................... (164,000) (735,700) (657,800)
------------ ------------ -----------
Other income (expense), net...................... 3,374,600 (686,000) (299,200)
------------ ------------ -----------
Net loss............................................. (55,096,000) (15,577,800) (8,640,400)
------------ ------------ -----------
Cumulative dividends and accretion of convertible
preferred stock to liquidation value............... (659,600) (1,230,500) --
------------ ------------ -----------
Net loss attributable to common stockholders......... $(55,755,600) $(16,808,300) $(8,640,400)
============ ============ ===========
Basic and diluted net loss per common share.......... $ (5.30) $ (9.71) $ (4.94)
============ ============ ===========
Weighted average shares outstanding used in basic and
diluted net loss per common share calculation...... 10,518,713 1,731,598 1,748,850
============ ============ ===========
</TABLE>
See accompanying notes to consolidated financial statements.
35
<PAGE>
ABOUT.COM, INC.
CONSOLIDATED STATEMENT OF STOCKHOLDERS' (DEFICIT) EQUITY
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL TOTAL
-------------------- PAID-IN DEFERRED ACCUMULATED STOCKHOLDERS'
SHARES AMOUNT CAPITAL COMPENSATION DEFICIT EQUITY (DEFICIT)
--------- -------- ---------- ------------ ------------ ----------------
<S> <C> <C> <C> <C> <C> <C>
Balance as of December 31, 1996....... 1,816,255 $1,800 $ 11,500 $ -- $(2,438,100) $(2,424,800)
Cancellation of common stock.......... (367,802) (300) 300 -- -- --
Issuance of warrants in connection
with debt transacitons.............. -- -- 104,000 -- -- 104,000
Exercise of stock options............. 26,886 -- 13,600 -- -- 13,600
Issuance of stock options in lieu of
services............................ -- -- 3,300 -- -- 3,300
Net loss for the year ended December
31, 1997............................ -- -- -- -- (8,640,400) (8,640,400)
--------- ------ ---------- ---------- ----------- -----------
Balance as of December 31, 1997....... 1,475,339 1,500 132,700 -- (11,078,500) (10,944,300)
Issuance of warrants in connection
with debt transactions.............. -- -- 216,000 -- -- 216,000
Deferred compensation related to stock
options granted..................... -- -- 1,716,900 (1,716,900) -- --
Amortization of deferred
compensation........................ -- -- -- 478,000 -- 478,000
Exercise of stock options............. 87,583 100 77,100 -- -- 77,200
Issuance of common stock in connection
with the exercise of warrants....... 639,636 600 2,255,800 -- -- 2,256,400
Issuance of stock options and warrants
in lieu of services rendered........ -- -- 63,000 -- -- 63,000
Cumulative dividends on convertible
preferred stock..................... -- -- (1,196,800) -- -- (1,196,800)
Accretion of convertible preferred
stock to liquidation value.......... -- -- (33,700) -- -- (33,700)
Net loss for the year ended December
31, 1998............................ -- -- -- -- (15,577,800) (15,577,800)
--------- ------ ---------- ---------- ----------- -----------
Balance as of December 31,1998........ 2,202,558 2,200 3,231,000 (1,238,900) (26,656,300) (24,662,000)
</TABLE>
36
<PAGE>
ABOUT.COM, INC.
CONSOLIDATED STATEMENT OF STOCKHOLDERS' (DEFICIT) EQUITY
(CONTINUED)
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL TOTAL
------------------------ PAID-IN DEFERRED ACCUMULATED STOCKHOLDERS'
SHARES AMOUNT CAPITAL COMPENSATION DEFICIT EQUITY (DEFICIT)
---------- ----------- ------------ ------------- ------------ ----------------
<S> <C> <C> <C> <C> <C> <C>
Cumulative dividends on
convertible preferred
stock........................ -- -- (646,100) -- -- (646,100)
Accretion of convertible
preferred stock to
liquidation value............ -- -- (13,500) -- -- (13,500)
Issuance of common stock in
private placement............ 107,527 100 2,499,900 -- -- 2,500,000
Conversion of preferred stock
in connection with
About.com's IPO.............. 6,139,640 6,100 32,725,200 -- -- 32,731,300
Forgiveness and cancellation
of interest on Series A Notes
in connection with
About.coms' IPO.............. -- -- 341,300 341,300
Issuance of common stock in
initial public offering,
net.......................... 3,450,000 3,500 78,545,500 -- -- 78,549,000
Compensation expense related
to guide option grant........ -- -- 3,612,000 -- -- 3,612,000
Issuance of common stock in
connection with VantageNet
acquisition.................. 65,550 100 1,899,200 -- -- 1,899,300
Exercise of stock options and
warrants..................... 571,995 600 1,042,400 -- -- 1,043,000
Deferred compensation related
to stock options granted..... -- -- 2,775,500 (2,775,500) -- --
Amortization of deferred
compensation................. -- -- -- 1,119,500 -- 1,119,500
Issuance of common stock in
connection with Employee
Stock Purchase Plan.......... 26,512 -- 563,400 563,400
Issuance of common stock in
connection with follow-on
offering, net................ 3,110,000 3,100 145,693,300 145,696,400
Issuance of common stock in
connection with North Sky
acquisition.................. 501,585 500 37,521,500 -- -- 37,522,000
Deferred compensation related
to terminated employees...... (35,800) 35,800 --
Net loss for the year ended
December 31, 1999............ -- -- -- -- (55,096,000) (55,096,000)
---------- ----------- ------------ ----------- ------------ ------------
Balance as of December
31,1999...................... 16,175,367 $ 16,200 $309,754,800 $(2,859,100) $(81,752,300) $225,159,600
========== =========== ============ =========== ============ ============
</TABLE>
See accompanying notes to consolidated financial statements.
37
<PAGE>
ABOUT.COM, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------------
1999 1998 1997
------------- ------------ -----------
<S> <C> <C> <C>
Cash flows from operating activities:
Net loss.................................................. $ (55,096,000) $(15,577,800) $(8,640,400)
Adjustments to reconcile net loss to net cash used in
operating activities:
Depreciation and amortization........................... 3,858,400 567,600 213,400
Amortization of debt discount and issuance costs........ -- 236,400 89,800
Non-cash compensation expense........................... 4,729,600 478,000 --
Stock options and warrants issued in lieu of services
rendered.............................................. -- 63,000 3,300
Deferred interest on debt............................... -- 401,700 558,300
Other................................................... (26,400) (1,900) 10,500
Changes in operating assets and liabilities, net of
effect of acquisitions:
Accounts receivable, net.............................. (9,770,400) (799,000) (118,000)
Deposits.............................................. (4,293,500) (36,000) (26,500)
Other assets.......................................... (1,226,500) (100,000) --
Accounts payable and accrued expenses................. 6,229,100 5,222,900 1,219,100
Guide fees payable.................................... 724,500 305,100 157,300
Deferred revenue...................................... 1,018,700 (529,600) 529,600
------------- ------------ -----------
Net cash used in operating activities........... (53,852,500) (9,769,600) (6,003,600)
------------- ------------ -----------
Cash flows used in investing activities:
VantageNet acquisition, net............................... (586,600) -- --
North Sky acquisition, net................................ (182,800) -- --
Purchase of marketable securities......................... (206,981,800) -- --
Sale of marketable securities............................. 105,847,900 -- --
Purchase of intangible assets............................. (799,800) -- --
Capital expenditures...................................... (8,460,600) (2,941,900) (148,000)
------------- ------------ -----------
Net cash used in investing activities........... (111,163,700) (2,941,900) (148,000)
------------- ------------ -----------
Cash flows from financing activities:
Proceeds from issuance of common stock in connection with
the exercise of warrants................................ -- 2,256,400 --
Proceeds from issuance of common stock related to initial
public offering and concurrent placement, net........... 81,049,000 -- --
Proceeds from issuance of common stock related to
follow-on offering, net................................. 145,696,400 -- --
Proceeds from issuance of convertible preferred stock,
net..................................................... -- 18,181,700 --
Proceeds from issuance of loans payable................... -- 2,881,000 5,000,000
Proceeds from issuance of common stock in connection with
the exercise of options................................. 1,043,000 77,200 13,600
Proceeds from issuance of common stock in connection with
the Employee Stock Purchase Plan........................ 563,400 -- --
Proceeds from secured credit facility..................... 781,300 437,500 --
Principal payments under secured credit facility.......... (348,700) -- --
Principal payments under capital leases................... (201,300) (212,500) (83,800)
Deferred offering/financing costs......................... 568,700 (568,700) (122,300)
------------- ------------ -----------
Net cash provided by financing activities....... 229,151,800 23,052,600 4,807,500
------------- ------------ -----------
Net increase in cash and cash equivalents................. 64,135,600 10,341,100 (1,344,100)
Cash and cash equivalents at beginning of period.......... 10,644,300 303,200 1,647,300
------------- ------------ -----------
Cash and cash equivalents at end of period................ $ 74,779,900 $ 10,644,300 $ 303,200
============= ============ ===========
</TABLE>
See accompanying notes to consolidated financial statements.
38
<PAGE>
ABOUT.COM, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS (CONTINUED)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------
1999 1998 1997
----------- ---------- --------
<S> <C> <C> <C>
Supplemental disclosures of cash flow information:
Interest paid........................................... $ 164,000 $ 94,165 $ 8,100
=========== ========== ========
Noncash transactions:
Equipment acquired under capital leases................. $ -- $ 179,300 $485,400
=========== ========== ========
Barter revenue and expense.............................. $ 1,894,700 $ 365,700 $ 72,500
=========== ========== ========
Conversion of $4,950,000 of the convertible notes
payable-Series A notes together with $70,000 of
interest thereon into 3,346,715 shares of Series A
preferred stock on April 23, 1998..................... $ -- $5,020,000 $ --
=========== ========== ========
Conversion of $1,700,000 of the 8.25% notes payable
together with $305,800 of interest thereon into
1,114,327 shares of Series B preferred stock on April
23, 1998 $ -- $2,005,800 $ --
=========== ========== ========
Conversion of $2,800,000 of the convertible notes
payable-Series B notes together with $69,800 of
interest thereon into 1,594,380 shares of Series B
preferred stock on April 23, 1998..................... $ -- $2,869,800 $ --
=========== ========== ========
Conversion of $1,555,600 of the 8.25% notes payable
together with $226,400 of interest thereon into
913,856 shares of Series C preferred stock on November
13, 1998 $ -- $1,782,000 $ --
=========== ========== ========
Conversion of $1,081,000 of the convertible notes
payable-Series C notes together with $8,900 of
interest thereon into 558,917 shares of Series C
preferred stock on November 13, 1998.................. $ -- $1,089,900 $ --
=========== ========== ========
Conversion of Series A, B and C Preferred stock into
1,191,433, 2,348,572 and 2,599,455 shares of common
stock on March 24, 1999............................... $32,731,300 $ -- $ --
=========== ========== ========
Forgiveness and cancellation of interest on March 24,
1999.................................................. $ 341,300 $ -- $ --
=========== ========== ========
Issuance of common stock in connection with the
acquisition of VantageNet............................. $ 1,899,300 $ -- $ --
=========== ========== ========
Issuance of common stock in connection with the Employee
Stock Purchase Plan................................... $ 563,400 $ -- $ --
=========== ========== ========
Issuance of common stock in connection with the
acquisition of North Sky.............................. $37,522,000 $ -- $ --
=========== ========== ========
</TABLE>
See accompanying notes to consolidated financial statements.
39
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1999 AND 1998
(1) ORGANIZATION AND BUSINESS
About.com, Inc. ("About.com" or the "Company") was incorporated in New York
on June 27, 1996 (inception) as General Internet Inc. and commenced operations
on that date. In December 1998, General Internet Inc. changed its corporate name
to MiningCo.com, Inc. and reincorporated in Delaware. In May 1999,
MiningCo.com, Inc. changed its corporate name to About.com, Inc. About.com's
Internet service, ABOUT.COM, is a platform comprised of a network of more than
700 highly-targeted, topic-specific web sites. About.com's primary revenue
source is the sale of advertising.
About.com's business is characterized by rapid technological change, new
product and service development and evolving industry standards. Inherent in the
Company's business are various risks and uncertainties, including its limited
operating history, uncertain profitability, history of losses, anticipated
continuing losses, its dependence on the Internet and risks associated with
Internet advertising.
(2) SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES
(A) PUBLIC OFFERINGS AND CONCURRENT PLACEMENT
On February 23, 1999, About.com and Comcast Interactive Investments, Inc.
("Comcast") entered into a common stock purchase agreement pursuant to which
About.com agreed to sell $2,500,000 of common stock to Comcast. These common
shares were purchased directly from About.com in a private placement transaction
at a price of 93% of the initial public offering price per share (or $23.25 per
share). The underwriters did not receive any discount or commission related to
this transaction. The closing of the concurrent placement was contingent upon
the closing of About.com's initial public offering ("IPO").
On March 24, 1999, About.com completed its IPO, which resulted in the
issuance of 3,450,000 shares of common stock at $25.00 per share (which included
450,000 shares issued in connection with the exercise of the underwriters'
over-allotment option) and the concurrent placement of 107,527 shares to Comcast
at $23.25 per share. In addition, upon the closing of the IPO, 3,346,715,
6,597,596 and 7,301,811 shares of Series A, B and C convertible preferred stock,
respectively, automatically converted into 6,139,640 shares of common stock and
$341,300 in unsecured promissory notes payable was forgiven. Net proceeds from
the IPO and concurrent placement, after underwriting fees of $6.0 million and
offering costs of $1.7 million were approximately $81.0 million.
On October 29, 1999, About.com completed a follow-on public offering
resulting in the issuance of 3,000,000 shares of common stock at $49.875 per
share. Net proceeds from the offering, after underwriting fees of $8.3 million
and offering costs of $0.7 million, were approximately $140.6 million. On
November 19, 1999, the underwriters purchased 110,000 shares of common stock at
$49.875 per share to cover over-allotments. Net proceeds from this purchase,
after underwriting fees of $0.3 million, were approximately $5.1 million
(B) PRINCIPLES OF CONSOLIDATION
The Company's consolidated financial statements as of December 31, 1999 and
for the year ended December 31, 1999 include the accounts of the Company and its
wholly owned subsidiaries from their respective date of acquisition,
VantageNet, Inc. from June 14, 1999 and North Sky, Inc. from December 15, 1999.
All significant intercompany balances have been eliminated in consolidation.
40
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(2) SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
(C) USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and the
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenue and expenses during the reporting
period. Actual results could differ from those estimates.
(D) CASH AND CASH EQUIVALENTS
About.com considers all highly liquid securities with original maturities of
three months or less to be cash equivalents. Cash equivalents at December 31,
1999 were approximately $74.8 million, which consists of money market funds and
commercial paper. For the year ended December 31, 1998 cash equivalents were
approximately $10.6 million, which principally consisted of money market
accounts.
(E) INVESTMENTS
Short-term investments are classified as available-for-sale with a maturity
date from 90 days to one year and are available to support current operations or
to take advantage of other investment opportunities. These investments consist
of commercial paper and treasury notes which are stated at book value. Realized
gains, realized losses and declines in value, judged to be other-than-temporary
are included in other income. The cost of securities sold is based on the
specific-identification method and interest earned is included in interest
income. For the year ended December 31, 1999, short-term investments were
approximately $86.9 million.
Long-term investments consist entirely of treasury notes. For the year ended
December 31, 1999, long-term investments totaled approximately $14.2 million.
For the year ended December 31, 1999, About.com did not recognize any
material gains or losses upon the sale of securities. Dividend and interest
income is recognized when earned. At December 31, 1999, the fair value of
investments in marketable securities approximated cost and the unrealized
holding gains or losses were not material.
(F) PROPERTY AND EQUIPMENT
Property and equipment are stated at cost less accumulated depreciation and
amortization. Depreciation is computed using the straight-line method over three
years, which is the estimated useful life of the related assets. Leasehold
improvements are amortized over their estimated useful lives, or the term of the
related lease, whichever is shorter. Equipment under capital leases is stated at
the present value of minimum lease payments and is amortized using the
straight-line method over the shorter of the lease term or the estimated useful
life of the assets.
(G) GOODWILL
Goodwill and other purchased intangible assets are stated net of accumulated
amortization of $967,400 at December 31, 1999. Goodwill and other purchased
intangible assets are being amortized on a straight-line basis over the expected
period of benefit of three years.
41
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(2) SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
(H) OTHER ASSETS
As of December 31, 1999, other assets include security deposits and costs
incurred in connection with the purchase of URL names. In December 1999,
About.com set up a security deposit of $4.0 million related to a lease for new
office space. The deposit is held as a certificate of deposit. Security deposits
for current leases totaled $443,900. URL costs in the amount of $799,800 have
been capitalized and are being amortized over a 5-year period. As of
December 31, 1999, URL costs net of amortization amounted to $718,200. As of
December 31, 1998, other assets included security deposits of $125,400 and
deferred offering costs of $568,700. Deferred offering costs of $568,700 at
December 31, 1998 represented costs incurred in connection with About.com's
initial public offering. These costs were charged against additional paid-in
capital at the close of About.com's initial public offering on March 24, 1999.
(I) IMPAIRMENT OF LONG-LIVED ASSETS
About.com reviews its long-lived assets for impairment whenever events or
changes in circumstances indicate that the carrying amount of an asset may not
be recoverable. Recoverability of assets to be held and used is measured by a
comparison of the carrying amount of the assets to future net cash flows
expected to be generated by the assets. If the assets are considered to be
impaired, the impairment to be recognized is measured by the amount by which the
carrying amount of the assets exceeds the fair value of the assets. To date, no
impairment has occurred.
(J) INCOME TAXES
About.com accounts for income taxes using the asset and liability method.
Under this method, deferred tax assets and liabilities are recognized for the
future tax consequences attributable to differences between the financial
statement carrying amounts of existing assets and liabilities and their
respective tax bases and operating loss and tax credit carryforwards. Deferred
tax assets and liabilities are measured using enacted tax rates expected to
apply to taxable income in the years in which those temporary differences are
expected to be recovered or settled. The effect on deferred tax assets and
liabilities of a change in tax rates is recognized in results of operations in
the period that includes the enactment date.
(K) REVENUE AND EXPENSE RECOGNITION
REVENUE RECOGNITION
To date, substantially all of About.com's revenues have been derived from
the sale of advertisements on ABOUT.COM. About.com offers numerous sizes and
types of advertising placement, including banner advertisements, button
advertisements, text links and sponsorship programs. Advertising revenues are
derived principally from short-term advertising contracts in which About.com
typically guarantees a minimum number of impressions to advertisers over a
specified period of time for a fixed fee. Revenues from advertising sales are
recognized ratably in the period in which the advertisement is displayed,
provided that no significant About.com obligations remain, at the lesser of the
ratio of impressions delivered over total guaranteed impressions or the
straight-line basis over the term of the contract, and collection of the
resulting receivable is probable. Payments received from advertisers prior to
displaying their advertisements on ABOUT.COM are recorded as deferred revenue
and are recognized as revenue ratably as the advertisements are displayed.
Pursuant to its agreements with advertisers, About.com generally
42
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(2) SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
guarantees a minimum number of impressions (times that an advertisement appears
in pages viewed by the users of ABOUT.COM) to be delivered over a specified
period of time for a fixed fee. To the extent minimum guaranteed impression
levels are not met ratably over the contract period, About.com defers
recognition of the corresponding pro-rata portion of the revenues relating to
such unfulfilled obligations until the guaranteed impression levels are
achieved. When there is no guarantee of a minimum number of impressions over a
specified period of time, About.com recognizes revenues in the period in which
the advertisement is displayed. About.com's short-term advertising agreements
are generally terminable by either party upon relatively short notice. In
certain cases, these agreements are longer in duration and entitle About.com to
a share of revenues generated by sales over a particular threshold resulting
from direct links from ABOUT.COM. To date, About.com has not recognized any
material revenues from these revenue sharing agreements. About.com's revenue
derived from these revenue sharing agreements will be recognized by About.com
upon notification from its advertisers and electronic commerce partners of sales
attributable to ABOUT.COM.
A portion of About.com's revenues are from barter advertisements (agreements
whereby About.com trades advertisements on ABOUT.COM in exchange for
advertisements on third-party web sites). Barter advertising revenues and
expenses are recorded at the fair market value of services provided or received,
whichever is more determinable in the circumstances. Revenue from barter
advertising transactions is recognized as income when advertisements are
delivered on ABOUT.COM. Barter expense is recognized when About.com's
advertisements are run on third-party web sites, which is typically in the same
period when barter revenue is recognized. Barter expense is included as a
component of cost of revenues. Barter advertising revenues and expenses were
$1.9 million, $366,000 and $73,000 for the years ended December 31, 1999, 1998
and 1997, respectively.
At December 31, 1999, accounts receivable included approximately $331,000 of
unbilled receivables. At December 31, 1998, unbilled receivables were $417,000.
Such unbilled receivables represent the recognized sales value of short-term
advertising contracts that were earned but not billable to customers. The terms
of the related advertising contracts typically require billing at the end of 30,
60 or 90 days from the signing of the contract.
EXPENSE RECOGNITION--GUIDE COMPENSATION
About.com's guides are compensated at an amount equal to the greater of a
monthly minimum guarantee or a percentage of net advertising revenues generated
by the entire network, which is distributed among the guides based on the user
traffic on their respective sites. Net advertising revenues has been defined as
total advertising revenues received less particular types of non-cash revenues,
third-party advertising sales representative organization fees and marketing
expenses. Guides are currently entitled to a percentage of net transaction
revenues and net syndication revenues. In addition, management may distribute a
semi-annual discretionary bonus to guides. Guide compensation is included as a
component of cost of revenues, except for the non-cash compensation portion
which was recorded in connection with the grant of stock options to the guides
and presented as a separate line item above the gross profit (loss) line.
EXPENSE RECOGNITION--DISTRIBUTION AND SYNDICATION PARTNERSHIPS
About.com has entered into distribution and syndication partnership
agreements that drive traffic to ABOUT.COM. Through these partnerships,
About.com provides content to a partner's web site, and users can
43
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(2) SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
link to ABOUT.COM by clicking on the content. About.com has agreements to
provide content to some of the leading Internet service providers, content web
sites, search engines/Internet directories and broadband cable-related sites.
These short-term agreements typically require About.com to make payments, which
are expensed, that are either fixed or are based on the amount of user traffic
directed from the partner's site to ABOUT.COM. About.com's fixed fees are paid
on a monthly basis and contracts in which fees are paid in advance are deferred
and amortized over the contract term.
(L) PRODUCT DEVELOPMENT EXPENSES
Product development expenses include personnel and consulting costs
associated with the design, development and testing of ABOUT.COM and About.com's
systems and editorial personnel costs. About.com generally expenses its product
development expenses as incurred. In the first quarter of 1999, the Company
adopted the American Institute of Certified Public Accountants Statement of
Position 98-1, "Accounting for the Costs of Computer Software Developed or
Obtained for Internal Use." SOP 98-1 provides guidance for determining whether
computer software is internal-use software and on accounting for the proceeds of
computer software originally developed or obtained for internal use and then
subsequently sold to the public. It also provides guidance on capitalization of
the costs incurred for computer software developed or obtained for internal use.
The adoption of SOP 98-1 did not have a material effect on the Company's
consolidated financial statements.
(M) ADVERTISING EXPENSES
About.com expenses the costs of advertising its service as incurred. These
costs amounted to $41.1 million, $5.3 million, and $0.5 million for the years
ended December 31, 1999, 1998 and 1997, respectively, and are included in sales
and marketing in About.com's statements of operations.
(N) STOCK-BASED COMPENSATION
About.com accounts for its employee stock option plans in accordance with
the provisions of Accounting Principles Board ("APB") Opinion No. 25,
"Accounting for Stock Issued to Employees," and related interpretations.
Compensation expense related to employee stock options is recorded only if, on
the date of grant, the fair value of the underlying stock exceeds the exercise
price. About.com adopted the disclosure-only requirements of Statement of
Financial Accounting Standards ("SFAS") No. 123, "Accounting for Stock-Based
Compensation," which allows entities to continue to apply the provisions of APB
Opinion No. 25 for transactions with employees and provide pro forma net income
and pro forma earnings per share disclosures for employee stock as if the
fair-value-based method of accounting in SFAS No. 123 had been applied to these
transactions.
About.com accounts for non-employee stock-based awards in which goods or
services are the consideration received for the equity instruments issued based
on the fair value of the consideration received or the fair value of the equity
instrument issued, whichever is more reliably measured.
(O) BASIC AND DILUTED NET LOSS PER COMMON SHARE
About.com adopted SFAS No. 128, "Computation of Earnings Per Share," during
the year ended December 31, 1997. In accordance with SFAS No. 128 and the SEC
Staff Accounting Bulletin No. 98, basic
44
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(2) SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
earnings per share is computed using the weighted average number of common and
dilutive common equivalent shares outstanding during the period. Common
equivalent shares consist of the incremental common shares issuable upon the
conversion of the convertible preferred stock (using the if-converted method)
and shares issuable upon the exercise of stock options and warrants (using the
treasury stock method); common equivalent shares are excluded from the
calculation if their effect is anti-dilutive. Pursuant to SEC Staff Accounting
Bulletin No. 98, all options, warrants or other potentially dilutive instruments
issued for nominal consideration, prior to the anticipated effective date of an
initial public offering (including the IPO), are required to be included in the
calculation of basic and diluted net loss per share, as if they were outstanding
for all periods presented. As a result, About.com has included 218,890 shares of
common stock in the calculation of basic and diluted net loss per common share
for the 1998 and 1997 periods presented which relate to certain investor
warrants issued for nominal consideration, all of which were exercised in
December 1998 when About.com exercised its right to call those warrants (see
notes 9 and 11).
Diluted net loss per common share for the years ended December 31, 1999,
1998 and 1997 does not include the effects of options to purchase 3,142,591,
1,178,436 and 818,638 shares of common stock, respectively, 30,260, 68,708 and
427,003 common stock warrants, respectively, or 0, 6,139,640 and 0 shares of
convertible preferred stock on an "as if" converted basis, respectively, as the
effect of their inclusion is anti-dilutive during each period.
(P) STOCK SPLIT
All common share and per share amounts in the accompanying consolidated
financial statements have been adjusted retroactively for a 1.00-for-2.809
reverse stock split of About.com's common stock which was approved by the Board
of Directors and stockholders and effected on March 19, 1999.
(Q) COMPREHENSIVE INCOME
The Company reports comprehensive income in accordance with SFAS No. 130,
"Reporting Comprehensive Income." SFAS No. 130 establishes rules for the
reporting and display of comprehensive income and its components. SFAS No. 130
requires unrealized holding gains and losses, net of related tax effects, on
available for sale securities to be included in other comprehensive income until
realized. About.com's comprehensive net loss is equal to its net loss for all
periods presented.
(R) RECENT ACCOUNTING PRONOUNCEMENTS
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities", which establishes accounting and reporting
standards for derivative instruments, including derivative instruments embedded
in other contracts, and for hedging activities. SFAS No. 133 is effective for
all fiscal quarters of fiscal years beginning after June 15, 2000. This
statement is not expected to affect About.com as About.com currently does not
engage or plan to engage in derivative instruments or hedging activities.
45
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(3) BUSINESS AND CREDIT CONCENTRATIONS
Financial instruments which subject About.com to concentrations of credit
risk consist primarily of cash and cash equivalents, short-term investments,
accounts receivable, accounts payable and accrued liabilities. The carrying
amounts of these instruments approximate fair value. The carrying amount of
About.com's capital leases and other equipment financing obligations
approximates the fair value of these instruments based upon management's best
estimate of interest rates which are similar to the rates obtained in its
January and February 1999 lease line of credit (see note 13).
About.com maintains cash and cash equivalents with a domestic financial
institution. About.com performs periodic evaluations of the relative credit
standing of this institution. From time to time, About.com's cash balances with
this financial institution may exceed Federal Deposit Insurance Corporation
insurance limits.
About.com's customers are concentrated in the United States. About.com
performs ongoing credit evaluations, generally does not require collateral and
establishes an allowance for doubtful accounts based upon factors surrounding
the credit risk of each customer, historical trends and other information; to
date, such amounts have been within management's expectations.
For the year ended December 31, 1999, no customers accounted for over 10% of
total revenues generated by About.com and no customers accounted for over 10% of
gross accounts receivable at December 31, 1999.
For the year ended December 31, 1998, one customer accounted for
approximately 12% of total revenues generated by About.com. This advertising
arrangement ended on December 31, 1998. For the year ended December 31, 1998, a
third-party Internet advertising sales representative organization accounted for
approximately 21% of About.com's total revenues and accounted for approximately
35% of gross accounts receivable at December 31, 1998, totaling approximately
$376,000.
In June 1997, About.com entered into a consulting agreement with a major
financial institution pursuant to which About.com agreed to provide consulting
assistance in connection with the development of a customized web site for an
aggregate amount of $450,000. Fees in connection with this agreement have been
recognized as performance occurred under the terms of the agreement, net of any
expenses, and have been recorded as other income for the year ended
December 31, 1997. In connection with this agreement, About.com issued the
financial institution a warrant to purchase 35,600 shares of common stock at
$14.05 per share with an expiration date of December 31, 1999. The fair value of
the warrants, using the Black-Scholes model based upon the following
assumptions: risk-free interest rate of 6%; dividend yield of 0%; expected life
of 2.5 years; and volatility of 0%, was deemed insignificant on the date of
grant. In December 1999, all of these warrants were exercised in exchange for
29,567 shares of common stock in a cashless exercise.
46
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(4) PROPERTY AND EQUIPMENT
Property and equipment consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------
1999 1998
----------- -----------
<S> <C> <C>
Equipment and computer hardware, including assets under
capital leases of $664,700 and $664,700, respectively..... $12,286,300 $ 4,062,200
Leasehold improvements...................................... 405,900 32,400
Furniture and fixtures...................................... 328,800 17,800
----------- -----------
13,021,000 4,112,400
Less accumulated depreciation and amortization, including
assets under capital leases of $487,200 and $239,900,
respectively.............................................. (3,619,800) (810,400)
----------- -----------
Total....................................................... $ 9,401,200 $ 3,302,000
=========== ===========
</TABLE>
(5) INCOME TAXES
No provision for US federal or state income taxes has been recorded for any
period as About.com has incurred operating losses since inception.
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Significant components of
About.com's deferred tax assets for federal and state income taxes are as
follows:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------
1999 1998
----------- -----------
<S> <C> <C>
Deferred tax assets:
Net operating loss carryforwards................. $32,975,000 $10,745,000
Allowance for doubtful accounts.................. 389,000 61,000
Deferred compensation............................ 836,500 375,000
Depreciation..................................... 24,000 (20,000)
Deferred rent.................................... 9,000 20,000
----------- -----------
34,233,500 11,181,000
Less valuation allowance......................... (34,233,500) (11,181,000)
----------- -----------
Deferred tax assets................................ $ -- $ --
=========== ===========
</TABLE>
Realization of deferred tax assets is dependent upon future earnings, if
any. About.com has recorded a full valuation allowance against its deferred tax
assets since management believes that it is not more likely than not that these
assets will be realized. No income tax benefit has been recorded for all periods
presented because of the valuation allowance.
For the years ended December 31, 1999 and 1998, the valuation allowance for
the deferred tax assets increased by $23,052,500 and $6,534,000, respectively.
Of the total valuation allowance of $34,233,500, subsequently recognized tax
benefits, if any, in the amount of $401,900 will be applied directly to
contributed capital. This amount relates to the tax effect or employee stock
option deductions included in the Company's net operating loss carryforward.
47
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(5) INCOME TAXES (CONTINUED)
As of December 31, 1999, About.com had net operating loss carryforwards for
federal income tax purposes of approximately $78.5 million. There can be no
assurance that About.com will realize the benefit of the net operating loss
carryforwards. The federal net operating loss carryforwards are available to
offset future taxable income and expire at various times through 2019 if not
utilized.
Due to the "change in ownership" provisions of the Internal Revenue Code,
the availability of About.com's net operating loss and credit carryforwards may
be subject to an annual limitation against taxable income in future periods,
which could substantially limit the eventual utilization of these carryforwards.
(6) RELATED-PARTY TRANSACTIONS
At December 31, 1997, Mr. Scott P. Kurnit, About.com's Chief Executive
Officer and Chairman of the Board of Directors, elected to defer compensation in
the amount of $414,700, for accrued but unpaid salary and bonuses. In
January 1998, Mr. Kurnit converted $300,000 of that amount into a convertible
note payable (see note 9). During 1998, Mr. Kurnit elected to defer an
additional $67,000 of compensation, which at December 31, 1998 totaled $181,700,
and is included in accounts payable and accrued expenses. Such amount was paid
in full during 1999.
On April 20, 1998, About.com and a director of an investor in About.com
executed an advisory agreement pursuant to which the individual agreed to
provide consulting and advisory services to About.com including, but not limited
to, introducing About.com to members of the investment community and assisting
About.com with respect to financial and strategic matters. In consideration for
his services under the advisory agreement, the individual was issued a warrant
to purchase up to an aggregate of 21,360 shares of About.com's common stock, at
an exercise price of $5.06 per share. The warrant is exercisable at any time
during the 10-year period commencing on the date of the closing of a qualified
initial public offering (which would include the IPO). The fair value of the
warrant, using the Black-Scholes model and the following assumptions: risk-free
interest rate of 6%, dividend yield of 0%, expected life of ten years, and
volatility of 0%, resulted in a compensation charge of $36,000 during 1998. This
warrant had not been exercised as of December 31, 1999.
(7) ACQUISITIONS
VANTAGENET
On June 14, 1999, About.com formed About.com Acquisition Corp. ("AAC"), a
Delaware corporation and a wholly-owned subsidiary of About.com. AAC was merged
with and into VantageNet, Inc., a Minnesota corporation ("VantageNet"), with
VantageNet as the surviving corporation. The merger was effected pursuant to the
Agreement and Plan of Reorganization, dated June 14, 1999, by and among
About.com, AAC, VantageNet and certain stockholders thereof. As a result of the
merger, VantageNet became a wholly-owned subsidiary of About.com. VantageNet is
an Internet marketing company which utilizes electronic surveys and/or polling
tools.
The consideration paid by About.com in connection with the merger consisted
of $550,000 in cash and 65,550 newly issued shares of common stock, par value
$0.001, of About.com. The total purchase price for this transaction was
approximately $2.5 million. The difference between the fair market value of
48
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(7) ACQUISITIONS (CONTINUED)
VantageNet's net tangible assets and the purchase price has been accounted for
as goodwill and other purchased intangible assets and is being amortized over
the expected period of benefit of three years.
NORTH SKY
On December 14, 1999, AAC was merged with and into North Sky, Inc., a
Delaware corporation ("North Sky"), with North Sky as the surviving corporation.
The merger was effected pursuant to the Agreement and Plan of Reorganization,
dated November 30, 1999, by and among About.com, AAC, North Sky and certain
stockholders thereof. As a result of the merger, North Sky became a wholly-owned
subsidiary of About.com. North Sky offers web site hosting as well as
programming and design support for its customers.
The acquisition has been accounted for as a purchase business combination.
The consideration of $37.6 million paid by About.com in connection with the
merger consisted of 501,585 newly issued shares of common stock, par value
$0.001, of About.com valued at approximately $22.9 million and the assumption by
the Company of options to purchase shares of common stock of North Sky which
were exchanged for options to purchase approximately 330,166 shares of
About.com's common stock valued at approximately $14.6 million. These options
have ten year terms and vest over a four year period. The Company also incurred
acquisition costs of approximately $80,000. The difference between the fair
market value of North Sky's net tangible liabilities and the purchase price has
been accounted for as goodwill and other purchased intangible liabilities and is
being amortized over the expected period of benefit of three years.
<TABLE>
<CAPTION>
ACQUISITION NET TANGIBLE
ACQUIRED COMPANY EFFECTIVE DATE COSTS ASSETS/(LIABILITIES) INTANGIBLES/GOODWILL
- - ---------------- ---------------- ----------- -------------------- --------------------
<S> <C> <C> <C> <C>
VantageNet..................... June 14, 1999 $51,000 $ 24,000 $ 2,476,000
North Sky...................... December 6, 1999 $80,000 $(73,000) $37,675,000
</TABLE>
The following unaudited pro forma consolidated amounts give effect to the
acquisitions as if they had occurred on January 1, 1998, by consolidating the
results of operations of VantageNet and North Sky with the results of About.com
for the years ended December 31, 1999 and 1998. The pro forma adjustments
include the elimination of all intercompany transactions.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------
1999 1998
------------ ------------
<S> <C> <C>
Total revenues................................... $ 28,320,300 $ 3,975,800
Net loss attributable to common stockholders..... $(68,785,600) $(29,074,100)
Net loss per common share........................ $ (6.24) $ (12.65)
Weighted average shares used in net loss per
common share calculation (1)................... 11,021,562 2,298,733
</TABLE>
- - ------------------------
(1) The weighted average common shares used to compute pro forma basic net loss
per share includes the actual weighted average common shares outstanding for
the historical years ended December 31, 1999 and 1998, respectively, plus
the common shares issued in connection with the acquisition of VantageNet
and North Sky from January 1, 1998. The common stock issued in connection
with the acquisition of VantageNet and North Sky was 65,550 and 501,585
shares, respectively.
49
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(7) ACQUISITIONS (CONTINUED)
The unaudited pro forma consolidated statements of operations are not
necessarily indicative of the operating results that would have been achieved
had the transactions been in effect as of the beginning of the periods presented
and should not be construed as being representative of future operating results.
(8) NOTES PAYABLE
8.25% NOTES PAYABLE
The following summarizes the 8.25% Notes Payable activity during 1997 and
1998:
<TABLE>
<CAPTION>
PRINCIPAL INTEREST TOTAL
----------- --------- ----------
<S> <C> <C> <C>
Balance at January 1, 1997............................... $ 3,905,600 $ 66,100 $3,971,700
Conversion into convertible note payable-Series A on
August 27, 1997........................................ (650,000) -- (650,000)
Accrued interest during 1997............................. -- 308,400 308,400
----------- --------- ----------
Balance at December 31, 1997............................. 3,255,600 374,500 3,630,100
----------- --------- ----------
Conversion into Series B preferred stock on April 23,
1998................................................... (1,700,000) (305,800) (2,005,800)
Accrued interest from January 1, 1998 through
November 13, 1998...................................... -- 157,700 157,700
Conversion into Series C preferred stock on
November 13, 1998...................................... (1,555,600) (226,400) (1,782,000)
----------- --------- ----------
Balance at December 31, 1998............................. $ -- $ -- $ --
=========== ========= ==========
</TABLE>
On October 17, 1996, About.com executed a secured 8.25% Promissory Note
("8.25% Note") in the original principal amount of $3,905,600. On August 27,
1997, the 8.25% Note was amended to, among other things, reduce the principal
amount outstanding thereunder to $3,255,600, reflecting a reduction of $650,000
which was converted into a convertible note payable. In connection with the
execution of the convertible note payable (see note 9), About.com issued
warrants to purchase 24,105 shares of About.com's common stock at an exercise
price of $4.21 per share. The fair value of the warrants, using a Black-Scholes
model and the following assumptions: risk-free interest rate of 5.7%, dividend
yield of 0%, expected life of ten years and volatility of 0%, was deemed
insignificant on the date of grant.
On April 23, 1998, the 8.25% Note was amended again to, among other things,
(i) reduce the principal amount outstanding thereunder to $1,555,600, reflecting
a reduction of $1,700,000 which was simultaneously converted into 944,444 shares
of Series B convertible preferred stock ("Series B Preferred") (see notes 9 and
10), (ii) reduce the interest amount outstanding thereunder by $305,800, which
was simultaneously converted into 169,883 shares of Series B Preferred, and
(iii) provide that the remaining principal and interest would automatically
convert into shares of About.com's Series C convertible preferred stock
("Series C Preferred") upon the closing of the next financing conducted by
About.com if the next sale of equity to new investors on or prior to March 31,
1999 was at a price per share less than $3.00 per share (on a pre-split basis),
otherwise the note was due and payable on March 31, 1999. On November 13, 1998,
About.com issued 913,856 shares of About.com's Series C Preferred at $1.95 per
preferred share in consideration for the cancellation of the remaining
$1,555,600 of principal and $226,400 of interest outstanding under the 8.25%
Note. Upon the closing of the IPO, these 913,856 shares of About.com's Series C
Preferred converted into 325,333 shares of common stock.
50
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(8) NOTES PAYABLE (CONTINUED)
In January, June and July 1998, About.com issued to the holder of the 8.25%
Note warrants to purchase an additional 2,670, 2,111 and 4,119 shares of
About.com's common stock at an exercise price of $4.21 per share in
consideration for entering into a subordination agreement with another creditor
of About.com. The value attributed to the warrants, using a Black-Scholes
pricing model and the following assumptions: risk-free interest rate of 6.0%,
dividend yield of 0%, expected life of ten years and volatility of 0%, was
$18,000 in the aggregate, based upon the respective grant dates, which was
recorded as additional interest expense in 1998.
NOTES PAYABLE
During January 1998, About.com entered into an asset backed credit facility
with Phoenix Leasing Incorporated ("Phoenix") which was funded as About.com
pledged fixed assets as security to Phoenix. During the year ended December 31,
1998, About.com received a total loan of $507,700 and pledged $507,700 of fixed
assets as security. The effective interest rate of the credit facility is 18%.
As of December 31, 1999, the balance outstanding was $300,000 of which $157,000
is due in 2000 and $143,000 is due in 2001.
In January and February 1999, About.com entered into a lease line of credit
for $781,300 to finance capital equipment, of which $268,800 is due in 2000,
$273,300 in 2001, and $7,000 in 2002. The effective interest rate of the credit
facility was 16%. As of December 31, 1999, the balance outstanding was $566,100,
of which $254,900 is due within the next twelve months.
(9) CONVERTIBLE NOTES PAYABLE--SERIES A NOTES
The following summarizes the Convertible Notes Payable--Series A Notes
activity during 1997 and 1998:
<TABLE>
<CAPTION>
PRINCIPAL INTEREST TOTAL
----------- --------- -----------
<S> <C> <C> <C>
Balance at January 1, 1997............................... $ -- $ -- $ --
Issuance of notes between March 27, 1997 and
December 31, 1997...................................... 4,000,000 -- 4,000,000
Conversion of $650,000 of the 8.25% notes payable into a
Series A convertible note on August 27, 1998........... 650,000 -- 650,000
Accrued interest during 1997............................. -- 239,700 239,700
----------- --------- -----------
Balance at December 31, 1997............................. 4,650,000 239,700 4,889,700
----------- --------- -----------
Conversion of $300,000 of Mr. Kurnit's deferred
compensation into Series A convertible note............ 300,000 -- 300,000
Interest accrued through April 23, 1998.................. -- 154,800 154,800
Conversion into Series A preferred stock on April 23,
1998................................................... (4,950,000) (70,000) (5,020,000)
Conversion of remaining accrued interest into a newly
issued unsecured promissory note on April 23, 1998..... -- (324,500) (324,500)
----------- --------- -----------
Balance at December 31, 1998............................. $ -- $ -- $ --
=========== ========= ===========
</TABLE>
51
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(9) CONVERTIBLE NOTES PAYABLE--SERIES A NOTES (CONTINUED)
Between March 27, 1997 and January 15, 1998, About.com issued several
secured subordinated notes, which converted into Series A Notes ("Series A
Notes"), for an aggregate principal amount of $4,950,000, which amount included
(i) the conversion of $650,000 from the 8.25% Notes and (ii) the conversion of
$300,000 of deferred compensation owed to Mr. Kurnit. These notes bore interest
at a variable rate equal to the prime rate plus two percent per annum. At
December 31, 1997, prime rate plus 2% was 10.5%. Pursuant to their terms, the
principal due on the Series A Notes were automatically convertible into shares
of About.com's common stock or convertible preferred stock upon the closing of
the next equity financing conducted by About.com. The conversion price for these
notes, as provided for in the original note agreement, was $1.50 per preferred
share.
In connection with the issuance of this debt, About.com issued warrants to
purchase 218,890 shares of About.com's common stock at an exercise price of
$0.03 per share and 90,858 shares of About.com's common shares at an exercise
price of $4.21 per share (which includes warrants to purchase 24,105 shares
relating to the conversion of $650,000 from the 8.25% Notes), all of which
expire ten years from their date of issuance; provided that, under certain
circumstances, About.com could cancel the warrants after providing the holders
thereof a reasonable period of time to exercise the warrants prior to their
cancellation. The value attributed to the warrants was $106,000 for warrants
issued with an exercise price of $0.03 and $31,000 for warrants issued with an
exercise price of $4.21 per share. These values were estimated, using a
Black-Scholes pricing model, based on the following assumptions: risk-free
interest rate of 6.0%, dividend yield of 0%, expected life of 10 years and
volatility of 0%. These amounts were recorded as an original issue debt discount
and amortized to interest expense over the life of the loans. In December 1998,
About.com exercised its right to call certain investor warrants which resulted
in the issuance of 218,890 shares of common stock at $0.03 per share and 66,753
shares of common stock at $4.21 per share for net cash proceeds of approximately
$287,600. The remaining 24,105 warrants with an exercise price of $4.21 per
share were cancelled.
On April 23, 1998, About.com issued an aggregate of 3,346,715 shares of
Series A Preferred, at a purchase price of $1.50 per preferred share, to holders
of the Series A Notes, in consideration for the cancellation of all principal
owed under the Series A Notes and $70,000 of interest accrued under the
Series A Notes prior to August 12, 1997. All remaining interest under the
Series A Notes up through April 23, 1998 was evidenced by newly issued unsecured
promissory notes of About.com which amounted to $337,100 as of December 31,
1998. The notes bore interest at 6% and had no due date. In accordance with the
terms of the note upon the closing of a qualified initial public offering, all
amounts due under these unsecured promissory notes were automatically, by its
original terms, forgiven and canceled. Accordingly, such amount has been
recorded as a contribution to additional paid-in capital upon the closing of the
IPO.
52
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(9) CONVERTIBLE NOTES PAYABLE--SERIES A NOTES (CONTINUED)
The following summarizes the unsecured promissory notes activity during 1999
and 1998:
<TABLE>
<CAPTION>
PRINCIPAL INTEREST TOTAL
--------- -------- ---------
<S> <C> <C> <C>
Balance at January 1, 1998................... $ -- $ -- $ --
Conversion of remaining accrued interest on
Series A notes into a newly issued
unsecured promissory note on April 23,
1998....................................... 324,500 -- 324,500
Accrued interest during 1998................. -- 12,600 12,600
--------- -------- ---------
Balance at December 31, 1998................. 324,500 12,600 337,100
--------- -------- ---------
Accrued interest from January 1, 1999 through
March 24, 1999............................. -- 4,200 4,200
Contribution to additional paid-in capital in
connection with the forgiveness and
cancellation of interest on March 24,
1999....................................... (324,500) (16,800) (341,300)
--------- -------- ---------
Balance at December 31, 1999................. $ -- $ -- $ --
========= ======== =========
</TABLE>
(10) CONVERTIBLE LOAN PAYABLE--SERIES B NOTES
The following summarizes the Convertible Loans Payable--Series B Notes
activity during 1997 and 1998:
<TABLE>
<CAPTION>
PRINCIPAL INTEREST TOTAL
----------- -------- -----------
<S> <C> <C> <C>
Balance at January 1, 1997................ $ -- $ -- $ --
Issuance of Series B notes on November 26,
1997.................................... 1,000,000 -- 1,000,000
Accrued interest during 1997.............. -- 10,200 10,200
----------- -------- -----------
Balance at December 31, 1997.............. 1,000,000 10,200 1,010,200
----------- -------- -----------
Issuance of Series B notes in February
1998.................................... 1,800,000 -- 1,800,000
Accrued interest through April 23, 1998... -- 59,600 59,600
Conversion of the Series B notes and
accrued interest thereon into Series B
preferred stock on April 23, 1998....... (2,800,000) (69,800) (2,869,800)
----------- -------- -----------
Balance at December 31, 1998.............. $ -- $ -- $ --
=========== ======== ===========
</TABLE>
Between November 1997 and February 1998, About.com issued several secured
subordinated notes ("Series B Notes") for an aggregate principal amount of
$2,800,000, of which $1,000,000 bore interest at a variable rate equal to the
prime rate plus two percent per annum and $1,800,000 bore interest at 10%
percent per annum and were due on demand. At December 31, 1997, prime rate plus
2% was 10.5%. Pursuant to their terms, the Series B Notes were automatically
convertible into shares of About.com's Series B Preferred upon the closing of
the next equity financing conducted by About.com. The conversion price for these
notes, as provided for in the original note agreement, was $1.80 per preferred
share.
53
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(10) CONVERTIBLE LOAN PAYABLE--SERIES B NOTES (CONTINUED)
In connection with the issuance of this debt, About.com issued warrants to
purchase 250,192 shares of About.com's common stock at an exercise price of
$5.06 per share, all of which expire ten years from their date of issuance;
provided that, under certain circumstances, About.com may cancel the warrants
after providing the holders thereof a reasonable period of time to exercise the
warrants prior to their cancellation. The fair value of the warrants, using the
Black-Scholes model and the following assumptions: risk-free interest rate of
6.0%, dividend yield of 0%, expected life of 10 years and volatility of 0%, was
$150,000 and recorded as additional interest expense. In December 1998,
About.com exercised its right to call certain investor warrants which resulted
in the issuance of 250,192 shares of common stock at $5.06 per share for net
cash proceeds of approximately $1,266,000.
On April 23, 1998, About.com issued 1,594,380 shares of Series B Preferred,
at a purchase price of $1.80 per share, to holders of the Series B Notes, in
consideration for the cancellation of all indebtedness of About.com under the
Series B Notes. Upon the closing of the IPO, these 1,594,380 shares of Series B
preferred converted into 567,601 shares of common stock.
(11) CAPITALIZATION
AUTHORIZED SHARES
During 1996 and 1997, About.com amended and restated its certificate of
incorporation. As a result, at December 31, 1997, the total number of shares
which About.com was authorized to issue was 30,000,000; 26,500,000 of these
shares were common stock, each having a par value of $0.001; and 3,500,000
shares were preferred stock, each having a par value of $0.001. During each of
April 1998 and November 1998, About.com amended and restated its certificate of
incorporation. As a result, at December 31, 1998, the total number of shares
which About.com was authorized to issue was 53,662,260; 35,000,000 of these
shares were common stock, each having a par value of $0.001; and 18,662,260
shares were preferred stock, each having a par value of $0.001, of which
3,346,715, 6,597,596, and 8,717,949 have been designated as Series A Preferred,
Series B Preferred and Series C Preferred, respectively. Upon the closing of the
initial public offering, 3,346,715, 6,597,596 and 7,301,811 shares of Series A,
B and C convertible preferred stock, respectively, converted into 6,139,640
shares of common stock and About.com issued 3,557,527 shares of common stock in
connection with its initial public offering and concurrent placement. Upon the
closing of the initial public offering, About.com also amended and restated its
certificate of incorporation so that the Company is authorized to issue
50,000,000 shares of common stock and 5,000,000 shares of undesignated preferred
stock.
REDEEMABLE CONVERTIBLE PREFERRED STOCK
On April 23, 1998, About.com issued an aggregate of 3,346,715 shares of
Series A Preferred, at a purchase price of $1.50 per share, to holders of the
Series A Notes, in consideration for the cancellation of all principal owed
under the Series A Notes, amounting to $4,950,000, and $70,000 of interest
accrued under the Series A Notes prior to August 12, 1997. All remaining
interest under the Series A Notes up through April 23, 1998 was evidenced by
newly unsecured promissory notes of About.com which amounted to $337,100 as of
December 31, 1998. In March 1999, upon the closing of the initial public
offering, this amount together with interest accrued from January 1, 1999
through March 24, 1999 was forgiven and canceled and recorded as a contribution
to additional paid-in capital for an aggregate amount of $341,300.
54
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(11) CAPITALIZATION (CONTINUED)
On April 23, 1998 and in June 1998, About.com issued an aggregate of
6,597,596 shares of Series B Preferred, at a purchase price of $1.80 per share,
to (i) holders of the Series B Notes in consideration for the cancellation of
all indebtedness of About.com under the Series B Notes, amounting to $2,869,900,
(ii) the 8.25% Note holder, in consideration for the cancellation of $1,700,000
in principal and $305,800 in accrued interest, and (iii) $7,000,000 from other
investors. In March 1999, upon the closing of the initial public offering, the
6,597,596 shares of Series A Preferred were converted into 2,348,752 shares of
common stock.
In connection with the issuance of the Series B Preferred, About.com issued
warrants to purchase 107,695 shares of About.com's common stock at an exercise
price of $7.02 per share, all of which expire ten years from their date of
issuance; provided that, under certain circumstances, About.com may cancel the
warrants after providing the holders with a reasonable period of time to
exercise the warrants prior to their cancellation. In December 1998, About.com
exercised its right to call certain investor warrants which resulted in the
issuance of 103,801 shares of common stock at $7.02 per share for net cash
proceeds of approximately $702,800. The warrant for the remaining 3,894 shares
was cancelled.
On October 5, 1998, About.com delivered a number of convertible promissory
notes ("Series C Notes") in the aggregate principal amount of $1,081,000.
Pursuant to their terms, the Series C Notes were automatically convertible into
shares of About.com's Series C Convertible Preferred Stock ("Series C
Preferred"), at a conversion price equal to the lesser of $3.60 per share of
Series C Preferred or the purchase price per share of the Series C Preferred,
upon the closing of the next equity financing conducted by About.com. The
conversion price for the notes was $1.95 per preferred share which was the
highest price paid for the Company's preferred stock during such time period.
On November 13, 1998 and December 4, 1998, About.com issued an aggregate of
7,301,811 shares of Series C Preferred, at a purchase price of $1.95 per share,
to (i) holders of the Series C Notes in consideration for the cancellation of
all indebtedness of About.com under the Series C Notes, amounting to $1,089,900
(ii) the holders of the Series C Notes in consideration for the payment of
$2,322,000, (iii) the 8.25% Note holder, in consideration for the cancellation
of $1,782,000 in principal and accrued interest, and (iv) other investors in
consideration for the payment of $9,044,600, including $762,600 from existing
stockholders pursuant to participation rights granted to those stockholders. In
March 1999, upon the closing of the initial public offering, the 7,301,811
shares of Series C Preferred were converted into 2,599,455 shares of common
stock.
The following summarizes the Convertible Notes Payable--Series C Notes
activity during 1998:
<TABLE>
<CAPTION>
PRINCIPAL INTEREST TOTAL
----------- -------- -----------
<S> <C> <C> <C>
Balance at January 1, 1998................................. $ -- $ -- $ --
Issuance of notes on October 5, 1998....................... 1,081,000 -- 1,081,000
Accrued interest through November 13, 1998................. -- 8,900 8,900
Conversion into Series C preferred stock on November 13,
1998..................................................... (1,081,000) (8,900) (1,089,900)
----------- ------- -----------
Balance at December 31, 1998............................... $ -- $ -- $ --
=========== ======= ===========
</TABLE>
Each share of Series A Preferred, Series B Preferred and Series C Preferred
was entitled to a cumulative dividend at the rate of $0.135, $0.162, and $0.176
per share per annum, respectively, payable in
55
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(11) CAPITALIZATION (CONTINUED)
preference and priority to any payment of any cash dividend on common stock,
when and as declared by the Board of Directors of About.com. Cumulative
dividends on convertible preferred stock amounted to $1,196,800 and $1,842,900
as of December 31, 1998 and March 24, 1999, respectively. Upon the closing of a
qualified initial public offering (including the IPO), all cumulative dividends
were canceled. Each holder of Series A Preferred, Series B Preferred and
Series C Preferred shares were entitled to the number of votes equal to the
number of whole shares of common stock into which the shares of preferred stock
were convertible into on the date of the vote.
Each share of Series A Preferred, Series B Preferred and Series C Preferred
was convertible into 0.356 shares of common stock, as adjusted for dilutive
issuances of stock and other securities. In March 1999, upon the closing of the
IPO, 3,346,715, 6,597,596 and 7,301,811 shares of Series A, B and C convertible
preferred stock, respectively, representing all of the outstanding shares of
convertible preferred stock, automatically converted into 6,139,640 shares of
common stock.
<TABLE>
<CAPTION>
SERIES A SERIES B SERIES C
------------------------- -------------------------- --------------------------
SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT
----------- ----------- ----------- ------------ ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
Balance at January 1, 1998.................. -- $ -- -- $ -- -- $ --
Conversion of the $4,950,000 of the
convertible notes payable Series A
together with $70,000 of interest thereon
into Series A preferred stock on April 23,
1998...................................... 3,346,715 5,020,000 -- -- -- --
Conversion of $1,700,000 of the 8.25% notes
payable together with $305,800 of interest
thereon into Series B preferred stock on
April 23, 1998............................ -- -- 1,114,327 2,005,800 -- --
Conversion of $2,800,000 of the convertible
notes payable-Series B together with
$69,800 of interest thereon into Series B
preferred stock on April 23, 1998......... -- -- 1,594,380 2,869,800 -- --
Issuance of Series B preferred stock on
April 23, 1998 in consideration of cash
proceeds of $7 million.................... -- -- 3,888,889 7,000,000 -- --
Conversion of the remaining $1,555,600 of
8.25% notes payable together with $226,400
of interest thereon into Series C
preferred stock on November 13, 1998...... -- -- -- -- 913,856 1,782,000
Conversion of $1,081,000 of the convertible
notes payable-Series C together with
$8,900 of interest thereon into Series C
preferred stock on November 13, 1998...... -- -- -- -- 558,917 1,089,900
Issuance of Series C preferred on November
13, and December 4, 1998 in consideration
of cash proceeds of $11.4 million......... -- -- -- -- 5,829,038 11,366,600
----------- ----------- ----------- ------------ ----------- ------------
Balance at December 31, 1998................ 3,346,715 5,020,000 6,597,596 11,875,600 7,301,811 14,238,500
----------- ----------- ----------- ------------ ----------- ------------
Conversion of Series A, B, and C preferred
stock into 1,191,433, 2,348,752, and
2,599,455 shares of common stock,
respectively, upon the closing of the
IPO....................................... (3,346,715) (5,020,000) (6,597,596) (11,875,600) (7,301,811) (14,238,500)
----------- ----------- ----------- ------------ ----------- ------------
Balance at December 31 1999................. -- $ -- -- $ -- -- $ --
=========== =========== =========== ============ =========== ============
</TABLE>
56
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(11) CAPITALIZATION (CONTINUED)
<TABLE>
<CAPTION>
CARRYING
# OF PRICE PER DIVIDEND TOTAL VALUE AT 1998 1998
SHARES SHARE RATE CONSIDERATION ISSUANCE(1) ACCRETION DIVIDENDS
--------- --------- -------- ------------- ----------- --------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Series A................... 3,346,715 $1.50 $0.135 $ 5,020,000 $ 4,943,900 $10,100 $ 305,700
Series B................... 6,597,596 $1.80 $0.162 $11,875,600 $11,698,200 $23,600 $ 726,500
Series C................... 7,301,811 $1.95 $0.176 $14,238,500 $14,199,100 -- $ 164,600
------- ----------
$33,700 $1,196,800
======= ==========
</TABLE>
<TABLE>
<CAPTION>
LIQUIDATION LIQUIDATION
BALANCE AT VALUE VALUE EQUIVALENT
DECEMBER 31, 1999 1999 BALANCE AT AT DECEMBER 31, AT MARCH 24, SHARES OF
1998 ACCRETION DIVIDENDS MARCH 24, 1999 1998 1998 COMMON STOCK
------------ --------- --------- -------------- --------------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Series A............. $ 5,259,700 $ 3,500 $104,200 $ 5,367,400 $ 5,325,700 $ 5,429,900 1,191,433
Series B............. $12,448,300 $ 8,200 $246,500 $12,703,000 $12,602,100 $12,848,600 2,348,752
Series C............. $14,363,700 $ 1,800 $295,400 $14,660,900 $14,403,100 $14,698,500 2,599,455
------- -------- ----------- ---------
$13,500 $646,100 $32,731,300 6,139,640
======= ======== =========== =========
</TABLE>
- - ------------------------
(1) Includes offering related costs of $76,100, $177,460 and $39,400 for
Series A, B and C, respectively
COMMON STOCK
During 1996, About.com issued shares of common stock to its founders and
original employees at approximately $0.03 per share. About.com's right to
repurchase these shares in certain circumstances was to lapse over a period of
three years. During 1997, About.com's Board of Directors approved a resolution
to cancel these shares in exchange for incentive stock options. Accordingly, on
March 20, 1997, About.com canceled 367,802 common shares and exchanged these
shares on a one-for-one basis for participation in the 1997 Employee Stock
Incentive Plan. These incentive stock options were granted with an exercise
price equal to their fair market value, or $0.51 per share, at the date of grant
as determined by an independent valuation.
57
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(11) CAPITALIZATION (CONTINUED)
WARRANTS
Warrant activity during the periods indicated is as follows:
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE
WARRANTS EXERCISE
GRANTED PRICE
-------- --------
<S> <C> <C>
Outstanding at December 31, 1996......................... -- $ --
Granted.................................................. 427,003 3.14
Exercised................................................ -- --
Canceled................................................. -- --
-------- ------
Outstanding at December 31, 1997......................... 427,003 3.14
Granted.................................................. 309,340 5.60
Exercised................................................ (639,636) 3.53
Canceled................................................. (27,999) 4.60
-------- ------
Outstanding at December 31, 1998......................... 68,708 9.66
Granted.................................................. -- --
Exercised................................................ (38,448) 13.48
Cancelled................................................ -- --
-------- ------
Outstanding at December 31, 1999......................... 30,260 $ 4.81
======== ======
</TABLE>
All warrants are exercisable and have expiration dates generally ten years
from the date of grant.
The weighted-average fair value of warrants granted during 1998 was $1.03 on
the date of grant using a Black Scholes pricing model with the following
weighted-average assumptions for 1998: (i) risk-free interest rate-6.0%;
(ii) dividend yield-0.0%; and (iii) expected life-10 years.
As of December 31, 1998, the following number of warrants to purchase common
stock remain outstanding: 8,900 shares at $4.21 per share; 21,360 shares at
$5.06 per share; 2,848 shares at $6.32 per share; and 35,600 shares at $14.05
per share.
As of December 31, 1999, the following number of warrants to purchase common
stock remain outstanding: 8,900 shares at $4.21 and 21,360 shares at $5.06 per
share.
(12) STOCK OPTION PLAN
About.com's Board of Directors has authorized 996,800 shares at
December 31, 1997 and 1,886,800 shares at December 31, 1998 of its common stock
for issuance pursuant to its 1998 Stock Option/Stock Issuance Plan (successor
plan to About.com's 1997 Employee Incentive Stock Option Plan). On February 5,
1999, the Board of Directors and shareholders increased the authorized number of
shares authorized under the plan by 1,338,085 shares, effectively authorizing
3,224,885 in the aggregate. These options have ten year terms and have been
issued at the fair market value of About.com's common stock on the date of the
applicable grant (except for certain 1998 and 1999 options issued with exercise
prices less than the deemed fair value at the date of grant). Incentive options
granted to stockholders who own more than 10%
58
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(12) STOCK OPTION PLAN (CONTINUED)
of the outstanding stock of About.com must be issued at 110% of the fair market
value of the stock on the date that the options are granted.
On August 20, 1999, the Board of Directors authorized 400,000 shares under
About.com's 1999 Non-Officer Stock Option/Stock Issuance Plan, effectively
authorizing 3,624,885 shares in the aggregate.
On December 1, 1999, the Board of Directors authorized an additional 400,000
shares under About.com's 1999 Non-Officer Stock Option/Stock Issuance Plan,
effectively authorizing 4,024,885 shares in the aggregate.
In December 1999, the Board of Directors authorized the assumption of an
additional 330,166 shares related to the option plan assumed in the North Sky
acquisition, effectively authorizing 4,355,051 shares in the aggregate.
Stock option activity under the Plan during the periods indicated is as
follows:
<TABLE>
<CAPTION>
WEIGHTED AVERAGE
OPTIONS GRANTED EXERCISE PRICE
--------------- ----------------
<S> <C> <C>
Outstanding as of December 31, 1996......................... -- $ --
Granted..................................................... 892,818 $ 0.51
Exercised................................................... (26,886) 0.51
Canceled.................................................... (97,081) 0.51
--------- ------
Outstanding as of December 31, 1997......................... 768,851 0.51
Granted..................................................... 485,921 1.43
Exercised................................................... (87,583) 0.90
Canceled.................................................... (38,540) 0.64
--------- ------
Outstanding as of December 31, 1998......................... 1,128,649 0.87
Granted..................................................... 2,775,707 24.71
Exercised................................................... (503,071) 2.22
Canceled.................................................... (258,684) 23.44
--------- ------
Outstanding as of December 31, 1999......................... 3,142,591 $19.79
========= ======
Exercisable at December 31, 1998............................ 477,721 $ 0.55
========= ======
Exercisable at December 31, 1999............................ 901,880 $ 7.23
========= ======
Total options available as of December 31, 1998............. 643,682
=========
Total options available as of December 31, 1999............. 594,920
=========
</TABLE>
59
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(12) STOCK OPTION PLAN (CONTINUED)
The following table summarizes information about stock options outstanding
at December 31, 1999.
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE WEIGHTED NUMBER
NUMBER REMAINING AVERAGE EXERCISABLE WEIGHTED
ACTUAL RANGE OF OUTSTANDING CONTRACTUAL EXERCISE AT AVERAGE
EXERCISE PRICES AT 12/31/99 LIFE PRICE 12/31/99 EXERCISE PRICE
--------------------- ----------- ----------- -------- ----------- --------------
<S> <C> <C> <C> <C> <C>
$0.32--0.47 203,117 7.8 $ 0.37 142,895 $ 0.36
$0.51--0.63 425,793 7.2 $ 0.52 417,938 $ 0.52
$1.01--1.01 133,146 8.5 $ 1.01 43,484 $ 1.01
$2.81--4.21 278,224 9.1 $ 3.87 65,580 $ 3.30
$5.51--6.77 46,146 9.6 $ 6.40 16,708 $ 6.46
$22.38--32.50 1,589,756 8.5 $24.94 192,776 $24.85
$33.60--49.88 423,659 9.8 $44.34 15,000 $47.50
$50.50--56.50 42,750 9.4 $51.65 7,499 $51.50
------------------- --------- --- ------ ------- ------
$0.32--56.50 3,142,591 8.5 $19.79 901,880 $ 7.23
=================== ========= === ====== ======= ======
</TABLE>
The weighted-average remaining life of the 3,142,591 and 1,128,649 options
outstanding at December 31, 1999 and 1998 is 8.5 and 8.75 years, respectively.
For the twelve months ended December 31, 1998, About.com recorded deferred
compensation expense of approximately $1,716,900, in connection with the grant
of certain options to employees and directors, representing the difference
between the deemed fair value of About.com's common stock at the date of grant
for accounting purposes and the exercise price of the related options. This
amount is presented as a reduction of stockholders equity (deficit) and
amortized over the vesting period, typically four years, of the applicable
options. About.com granted approximately 485,921 options at a weighted average
exercise price of $1.43 per share; all of which were granted at less than the
deemed fair value at the date of grant. About.com has amortized $478,000 of
deferred compensation for the year ended December 31, 1998 of which $27,000 has
been included in cost of revenues. About.com has amortized $1.1 million of
deferred compensation for the year ended December 31, 1999, which $19,000 has
been included in cost of revenue. About.com expects to amortize the following
amounts of deferred compensation annually: 2000-$278,600; 2001-$278,600; and
2002-$222,000 (see note 13(b)).
In September 1997, About.com recorded compensation expense of approximately
$3,300 in connection with options granted outside of the Plan to consultants to
purchase 49,787 shares of common stock at an exercise price of $0.51 per share.
The fair value of the options was determined using the Black-Scholes model and
the following assumptions: risk-free interest rate of 5.7%, dividend yield of
0%, expected life of 10 years and volatility of 0%. During the year ended
December 31, 1999, 36,509 of these options were exercised.
About.com also recorded compensation expense of approximately $23,000 in
connection with options granted to consultants under the Plan in December 1998
to purchase 5,340 shares of common stock at an exercise price of $4.21 per
share. The fair value of the options was determined using the Black-Scholes
model and the following assumptions: risk-free interest rate of 6.0%, dividend
yield of 0%, and volatility of 0%. During the year ended December 31, 1999,
4,005 of these options have been exercised.
60
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(12) STOCK OPTION PLAN (CONTINUED)
In March 1999, About.com recorded a non-cash charge of $3.6 million for
guide compensation. About.com has granted fully vested, non-qualified stock
options to purchase 199,500 shares of common stock at an exercise price of
$25.00 per share to substantial majority of its guides. The options have a two
year term. Accordingly, such amount was recorded as a non-cash compensation
expense in About.com's statement of operations for the three months ended
March 31, 1999 with an offsetting increase in additional paid-in capital. During
the year ended December 31, 1999, 32,239 options were exercised.
Had About.com determined compensation expense based on the fair value on the
grant date for its stock options issued to employees under SFAS No. 123,
About.com's net loss would have been adjusted to the pro forma amounts indicated
below:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------
1999 1998 1997
------------ ------------ -----------
<S> <C> <C> <C>
Net loss attributable to common stockholders-as
reported........................................... $(55,755,600) $(16,808,300) $(8,640,400)
============ ============ ===========
Net loss attributable to common stockholders-pro
forma per SFAS No. 123............................. $(69,553,400) $(17,007,500) $(8,675,900)
============ ============ ===========
Basic and diluted net loss per common share-as
reported........................................... $ (5.30) $ (9.71) $ (4.94)
============ ============ ===========
Basic and diluted net loss per common share-pro forma
per SFAS No. 123................................... $ (6.61) $ (9.82) $ (4.96)
============ ============ ===========
</TABLE>
The per share weighted-average fair value of stock options granted during
1999, 1998 and 1997 was $25.24, $3.87 and $0.09, respectively, on the date of
grant using the Black Scholes option pricing model with the following
weighted-average assumptions for 1999, 1998 and 1997: (i) risk-free interest
rate-5.6%, 6% and 5.7%, respectively; (ii) dividend yield-0.0% for all years;
and (iii) expected life-4.0, 4.4 and 3.4 years, respectively. As permitted under
the provisions of SFAS No. 123, and based on the historical lack of a public
market for About.com's options, no factor for volatility has been reflected in
the option pricing calculation.
The Company's Employee Stock Purchase Plan ("ESPP") was adopted by the Board
of Directors in February 1999. The ESPP will provide eligible employees of the
Company the opportunity to apply a portion of their compensation to the purchase
of shares of the Company at a 15% discount. The Company has reserved 125,000
authorized but unissued shares of common stock for issuance under the ESPP. In
October 1999, 26,512 shares were purchased by employees through the ESPP.
(13) COMMITMENTS AND CONTINGENCIES
(A) LEASES
About.com leases certain facilities in New York and White Plains
(Westchester County) and equipment under non-cancelable operating leases. These
leases generally provide for rental increases at specified intervals. In
addition, About.com is a lessee, under several capital lease agreements with
third parties for certain equipment. Total rent expense for the years ended
December 31, 1999, 1998 and 1997 was $791,600, $320,600 and $320,900,
respectively.
61
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(13) COMMITMENTS AND CONTINGENCIES (CONTINUED)
In March and September 1999, About.com entered into two lease agreements to
expand its office space in New York. These leases expire on April 30, 2003 and
August 31, 2000, respectively. The minimum lease payments under these leases
amount to approximately $2.7 million and have been included as part of the
minimum lease payment schedule. In December 1999, we entered into a fifteen year
lease for approximately 169,000 square feet at 1440 Broadway, New York, New
York. The minimum lease payments under this lease amount to approximately
$120.1 million and have been included as part of the minimum lease payment
schedule.
Future minimum lease payments under non-cancelable operating leases and
capital leases as of December 31, 1999 are as follows:
<TABLE>
<CAPTION>
CAPITAL OPERATING
YEAR LEASES LEASES
- - ---- -------- ------------
<S> <C> <C>
2000................................................ $161,400 $ 3,080,800
2001................................................ 18,400 7,190,000
2002................................................ -- 7,126,700
2003................................................ -- 8,198,100
2004................................................ -- 8,063,600
Thereafter.......................................... -- 89,037,200
-------- ------------
Total minimum lease payments.................. 179,800 $122,696,400
============
Less amount representing interest (at rates ranging
from 9.7% to 18.7%)............................... 12,700
--------
Present value of net minimum lease payments......... 167,100
Less current installment of obligations under
capital leases.................................... 157,000
--------
Obligations under capital leases, excluding current
installments...................................... $ 10,100
========
</TABLE>
(B) EMPLOYMENT AGREEMENTS
At December 31, 1998, About.com had employment agreements with two senior
employees that provide for severance benefits, among other items. In the event
these agreements are terminated, About.com may be liable for severance up to
$420,000 payable during the year following that termination.
During January 1999, About.com entered into employment arrangements with two
employees. The employment arrangements provide for minimum salary levels, and
incentive compensation and severance benefits, among other items. About.com
granted 133,500 options in the aggregate to the two employees. The exercise
price of the options is $4.21 per share. As a result, About.com recorded
deferred compensation expense in the first quarter of 1999 of $2,775,400
relating to the 133,500 options for the difference between the deemed fair value
of About.com's common stock (the initial public offering price of $25.00 per
share for accounting purposes) and the exercise price of that option at the date
of grant of $4.21 per share. This amount has been presented as a reduction of
stockholders' equity and is being amortized over the four-year vesting period of
the applicable options. About.com has amortized $693,800 of deferred
compensation for the year ended December 31, 1999. About.com expects to amortize
the following
62
<PAGE>
ABOUT.COM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
DECEMBER 31, 1999 AND 1998
(13) COMMITMENTS AND CONTINGENCIES (CONTINUED)
amounts of deferred compensation annually: 2000-$323,700; 2001-$323,700; and
2002-$324,000. Such amount is net of certain options which were forfeited in
January 2000 and resulted in a $1.1 million reduction in deferred compensation.
During November 1999, the Company entered into an exclusive one-year
arrangement with a non-public company to provide personal homepage services. The
Company agreed to make payments, which are expensed, that are based on the
amount of advertising revenue generated on About.com's personal homepages. In
addition, the Company received vested and exercisable warrants to purchase
517,484 shares of preferred stock and warrants to purchase an additional
2,069,936 shares of preferred stock which periodically vest upon the achievement
of specified performance milestones, as defined. The warrants have an exercise
price of $2 per share and a 4-year exercise term. The fair value of these
517,484 warrants was deemed to be insignificant at December 31, 1999.
(14) SUBSEQUENT EVENT--(UNAUDITED)
On January 28, 2000, About.com announced a definitive agreement to acquire
ExpertCentral.com, Inc. ("ExpertCentral") pursuant to the terms of an Agreement
and Plan of Reorganization (the "Agreement") dated as of January 14, 2000, by
and among the About.com, ExpertCentral and ExpertCentral Acquisition Corp.
("ECAC"), a wholly-owned subsidiary of About.com. Subject to the conditions set
forth in the Agreement, ECAC merged with and into ExpertCentral, with
ExpertCentral as the surviving corporation.
The acquisition will be accounted for as a purchase business combination.
The consideration paid by About.com in connection with the merger consisted of
496,651 newly issued shares of common stock, par value $0.001, of About.com
valued at approximately $31.2 million and the assumption by the Company of
options to purchase shares of common stock of ExpertCentral which were exchanged
for options to purchase approximately 8,287 of About.com's common stock valued
at approximately $508,000. The Company also incurred acquisition costs of
approximately $200,000. The difference between the fair market value of
ExpertCentral's net tangible assets and the purchase price will be accounted for
as goodwill and other purchased intangible assets and will be amortized over the
expected period of benefit of three years.
63
<PAGE>
SCHEDULE II
ABOUT.COM, INC.
VALUATION AND QUALIFYING ACCOUNTS--
ALLOWANCE FOR DOUBTFUL ACCOUNTS
<TABLE>
<CAPTION>
BALANCE AT PROVISION BALANCE AT
BEGINNING FOR DOUBTFUL END
OF PERIOD ACCOUNTS DEDUCTIONS OF PERIOD
---------- ------------ ---------- ----------
<S> <C> <C> <C> <C>
For the year ended December 31, 1997:
Allowance for doubtful accounts.................. $ -- $ 6,000 $ -- $ 6,000
======== ======== ======== ========
For the year ended December 31, 1998:
Allowance for doubtful accounts.................. $ 6,000 $140,000 $ -- $146,000
======== ======== ======== ========
For the year ended December 31, 1999:
Allowance for doubtful accounts.................. $146,000 $763,400 $129,400 $780,000
======== ======== ======== ========
</TABLE>
64
<PAGE>
ITEM 9: CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
65
<PAGE>
PART III
ITEM 10: DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Reference is made to the information contained in the Company's proxy
statement to be mailed to stockholders within 120 days of the end of the fiscal
year to which this report relates, which information is incorporated herein by
reference.
ITEM 11: EXECUTIVE COMPENSATION
Reference is made to the information contained in the Company's proxy
statement to be mailed to stockholders within 120 days of the end of the fiscal
year to which this report relates, which information is incorporated herein by
reference.
ITEM 12: SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Reference is made to the information contained in the Company's proxy
statement to be mailed to stockholders within 120 days of the end of the fiscal
year to which this report relates, which information is incorporated herein by
reference.
ITEM 13: CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Reference is made to the information contained in the Company's proxy
statement to be mailed to stockholders within 120 days of the end of the fiscal
year to which this report relates, which information is incorporated herein by
reference.
66
<PAGE>
PART IV
ITEM 14: EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a)(1) Consolidated Financial Statements.
See Index to Consolidated Financial Statements at Item 8 of this Report.
(a)(2) Financial Statement Schedules.
See Schedule II--Valuation and Qualifying Accounts
(a)(3) Exhibits.
The following Exhibits are incorporated herein by reference or are filed
with this Report as indicated below:
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
- - --------------------- -----------
<C> <S>
2.1 Agreement and Plan of Reorganization, dated as of November
30, 1999, by and among About.com, Inc, North Sky, Inc., and
About.com Acquisition Corp. (Incorporated by reference to
Exhibit 2.1 of the Company's Current Report on Form 8-K,
dated December 15, 1999).
3.1 Second Amended and Restated Certificate of Incorporation.
(Incorporated by reference to Exhibit 3.3 of the Company's
Registration Statement on Form S-1 ("Registration Statement
No. 333-69881")).
3.2 Amended and Restated Bylaws. (Incorporated by reference to
Exhibit 3.5 of Registration Statement No. 333-698881).
3.3 Certificate of Ownership and Merger changing the name of the
Company from MiningCo.com, Inc. to About.com, Inc.
(Incorporated by reference to Exhibit 3.3 of the Company's
Registration Statement on Form S-1, No. 333-88507)
4.1 Specimen Common Stock certificate. (Incorporated by
reference to Exhibit 4.1 of Registration Statement No.
333-69881).
10.1 1997 Employee Incentive Stock Option Plan. (Incorporated by
reference to Exhibit 10.1 of Registration Statement No.
333-69881).
10.2 Amended and Restated 1998 Stock Option/Stock Issuance Plan.
(Incorporated by reference to Exhibit 10.9 of Registration
Statement No. 333-69881)
10.3 Second Amended and Restated Investors' Rights Agreement,
dated as of March 25, 1999. (Incorporated by reference to
Exhibit 10.13 of Registration Statement No. 333-69881).
10.4 Sublease, dated as of November 1, 1996, by and between the
Company and Minet, Inc., and Lease, dated as of January 27,
1998, by and between Two Twenty East Limited Partnership and
Minet, Inc. (Incorporated by reference to Exhibit 10.4 of
Registration Statement No. 333-69881).
10.5 Form of About.com, Inc. Guide Agreement. (Incorporated by
reference to Exhibit 10.5 of Registration Statement No.
333-69881).
10.6 Letter Agreement, dated as of October 20, 1996, by and
between the Company and Mr. Scott P. Kurnit, as amended.
(Incorporated by reference to Exhibit 10.6 of Registration
Statement No. 333-69881).
</TABLE>
67
<PAGE>
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
- - --------------------- -----------
<C> <S>
10.7 Agreement dated as of January 27, 1998, and Extension of
Agreement dated as of January 29, 1999, by and between the
Company and GlobalCenter, Inc. (Incorporated by reference to
Exhibit 10.7 of Registration Statement No. 333-69881).
10.8 Letter Agreement, dated as of July 28, 1996, by and between
the Company and Mr. Alan Wragg, as amended. (Incorporated by
reference to Exhibit 10.8 of Registration Statement No.
333-69881).
10.9 1999 Employee Stock Purchase Plan. (Incorporated by
reference to Exhibit 10.10 of Registration Statement No.
333-69881).
10.10 Letter Agreement, dated as of January 11, 1999, by and
between the Company and Mr. Todd B. Sloan. (Incorporated by
reference to Exhibit 10.11 of Registration Statement No.
333-69881).
10.11 Letter Agreement, dated as of March 16, 1999, by and between
the Company and Mr. Scott P. Kurnit. (Incorporated by
reference to Exhibit 10.14 of Registration Statement No.
333-69881).
10.12 Amended and Restated 1999 Non-Officer Stock Option/Stock
Issuance Plan. (Incorporated by reference to Exhibit 99.3 of
the Company's Registration Statement on Form S-8, dated
February 17, 2000)
10.13* Lease, dated December 31, 1999, by and between the Company
and 1440 Broadway Partners, L.L.C.
21.1* List of Subsidiaries.
23.1* Consent of KPMG LLP.
27.1* Financial Data Schedule.
</TABLE>
- - ------------------------
* Filed with this Report.
(b) Reports on Form 8-K.
On October 27, 1999, the Company filed a Form 8-K announcing its financial
results for the three and nine months ended September 30, 1999.
On December 15, 1999, the Company filed a Form 8-K announcing its
acquisition of North Sky, Inc.
(c) Exhibits. See Item 14(a) above.
(d) Financial Statements and Schedules. See Item 14(a) above.
68
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this Report to be signed on its behalf
by the undersigned, thereunto duly authorized in the City of New York, State of
New York, on this 30th day of March, 2000.
<TABLE>
<S> <C> <C>
ABOUT.COM, INC.
By: /s/ SCOTT P. KURNIT
-----------------------------------------
Scott P. Kurnit
CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, this Report has been signed by the following persons in the capacities
indicated on March 30, 2000:
<TABLE>
<CAPTION>
SIGNATURE TITLE(S)
--------- --------
<C> <S>
/s/ SCOTT P. KURNIT Chief Executive Officer and Chairman of the
------------------------------------------- Board of Directors (Principal Executive
Scott P. Kurnit Officer)
/s/ TODD B. SLOAN
------------------------------------------- Chief Financial Officer (Principal Officer and
Todd B. Sloan Principal Accounting Officer)
/s/ FRANK J. BIONDI
------------------------------------------- Director
Frank J. Biondi
/s/ RONALD UNTERMAN
------------------------------------------- Director
Ronald Unterman
/s/ MARC WATSON
------------------------------------------- Director
Marc Watson
/s/ DIXON R. DOLL
------------------------------------------- Director
Dixon R. Doll
/s/ KRISTOPHER WOOD
------------------------------------------- Director
Kristopher Wood
</TABLE>
69
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
- - --------------------- -----------
<C> <S>
2.1 Agreement and Plan of Reorganization, dated as of November
30, 1999, by and among About.com, Inc, North Sky, Inc., and
About.com Acquisition Corp. (Incorporated by reference to
Exhibit 2.1 of the Company's Current Report on Form 8-K,
dated December 15, 1999).
3.1 Second Amended and Restated Certificate of Incorporation.
(Incorporated by reference to Exhibit 3.3 of the Company's
Registration Statement on Form S-1 ("Registration Statement
No. 333-69881")).
3.2 Amended and Restated Bylaws. (Incorporated by reference to
Exhibit 3.5 of Registration Statement No. 333-698881).
3.3 Certificate of Ownership and Merger changing the name of the
Company from MiningCo.com, Inc. to About.com, Inc.
(Incorporated by reference to Exhibit 3.3 of the Company's
Registration Statement on Form S-1, No. 333-88507)
4.1 Specimen Common Stock certificate. (Incorporated by
reference to Exhibit 4.1 of Registration Statement No.
333-69881).
10.1 1997 Employee Incentive Stock Option Plan. (Incorporated by
reference to Exhibit 10.1 of Registration Statement No.
333-69881).
10.2 Amended and Restated 1998 Stock Option/Stock Issuance Plan.
(Incorporated by reference to Exhibit 10.9 of Registration
Statement No. 333-69881)
10.3 Second Amended and Restated Investors' Rights Agreement,
dated as of March 25, 1999. (Incorporated by reference to
Exhibit 10.13 of Registration Statement No. 333-69881).
10.4 Sublease, dated as of November 1, 1996, by and between the
Company and Minet, Inc., and Lease, dated as of January 27,
1998, by and between Two Twenty East Limited Partnership and
Minet, Inc. (Incorporated by reference to Exhibit 10.4 of
Registration Statement No. 333-69881).
10.5 Form of About.com, Inc. Guide Agreement. (Incorporated by
reference to Exhibit 10.5 of Registration Statement No.
333-69881).
10.6 Letter Agreement, dated as of October 20, 1996, by and
between the Company and Mr. Scott P. Kurnit, as amended.
(Incorporated by reference to Exhibit 10.6 of Registration
Statement No. 333-69881).
10.7 Agreement dated as of January 27, 1998, and Extension of
Agreement dated as of January 29, 1999, by and between the
Company and GlobalCenter, Inc. (Incorporated by reference to
Exhibit 10.7 of Registration Statement No. 333-69881).
10.8 Letter Agreement, dated as of July 28, 1996, by and between
the Company and Mr. Alan Wragg, as amended. (Incorporated by
reference to Exhibit 10.8 of Registration Statement No.
333-69881).
10.9 1999 Employee Stock Purchase Plan. (Incorporated by
reference to Exhibit 10.10 of Registration Statement No.
333-69881).
10.10 Letter Agreement, dated as of January 11, 1999, by and
between the Company and Mr. Todd B. Sloan. (Incorporated by
reference to Exhibit 10.11 of Registration Statement No.
333-69881).
</TABLE>
70
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
- - --------------------- -----------
<C> <S>
10.11 Letter Agreement, dated as of March 16, 1999, by and between
the Company and Mr. Scott P. Kurnit. (Incorporated by
reference to Exhibit 10.14 of Registration Statement No.
333-69881).
10.12 Amended and Restated 1999 Non-Officer Stock Option/Stock
Issuance Plan. (Incorporated by reference to Exhibit 99.3 of
the Company's Registration Statement on Form S-8, dated
February 17, 2000)
10.13* Lease, dated December 31, 1999, by and between the Company
and 1440 Broadway Partners, L.L.C.
21.1* List of Subsidiaries.
23.1* Consent of KPMG LLP.
27.1* Financial Data Schedule.
</TABLE>
71
<PAGE>
LEASE
LEASE dated as of December 31, 1999, between 1440 BROADWAY PARTNERS, LLC
("LANDLORD"), a Delaware limited liability company, having an office c/o Max
Capital Management Corp., 230 Park Avenue, New York, New York 10169, and
ABOUT.COM, INC. ("TENANT"), a Delaware corporation having an office at 220 East
42nd Street, New York, New York 10017.
WITNESSETH:
ARTICLE 1 1
DEMISE, PREMISES, TERM, RENTS
1.01 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the premises hereinafter described, in the building located at 1440
Broadway, in the Borough of Manhattan, City, County and State of New York
(hereinafter referred to as the "BUILDING"), on the parcel of land more
particularly described in Exhibit A (hereinafter referred to as the "Land"), for
the term hereinafter stated, for the rents hereinafter reserved and upon and
subject to the conditions (including limitations, restrictions and reservations)
and covenants hereinafter provided. Each party hereby expressly covenants and
agrees to observe and perform all of the conditions and covenants herein
contained on its part to be observed and performed.
1.02 (a) (i) The premises hereby leased to Tenant are the entire
rentable areas of the eighteenth (18th), nineteenth (19th) and twentieth (20th)
floors of the Building, as shown on the floor plans annexed hereto as EXHIBIT B.
Said premises together with all fixtures and equipment which at the
commencement, or during the Term (as hereinafter defined), of this lease are
attached thereto (except items not deemed to be included therein and removable
by Tenant as provided in Article 14) constitute and are hereinafter referred to
as the "PHASE I PORTION". The entire 19th floor of the Building is hereinafter
referred to as the "19TH FLOOR."
(ii) Landlord and Tenant acknowledge that a portion of the
19th Floor is occupied by a tenant (the "19TH FLOOR TENANT") whose lease expired
on December 31, 1999. Landlord represents to Tenant that Landlord has commenced,
and is diligently prosecuting, a
1
<PAGE>
holdover action against the 19th Floor Tenant. Landlord's failure or inability
to have the 19th Floor Tenant removed from the 19th Floor despite using such
diligent efforts shall not be a default by Landlord and shall not entitle Tenant
to exercise any rights or remedies whatsoever, except as otherwise expressly
provided in subsection 4.02(i) below.
(b) Landlord and Tenant acknowledge that Landlord presently leases
to various tenants (collectively, the "PHASE II TENANTS") portions of the
seventeenth (17th) floor of the Building, substantially where shown on the floor
plan annexed hereto as EXHIBIT B1, pursuant to various leases (collectively, the
"PHASE II LEASE"), the latest fixed expiration date of which is April 30, 2001
(taking into account Landlord's timely exercise of any termination rights of
Landlord contained in the Phase II Lease). The entire seventeenth (17th) floor
of the Building, together with all fixtures and equipment which on the Phase II
Effective Date (as hereinafter defined), or during the Term of this lease after
the Phase II Effective Date are attached thereto (except items not deemed to be
included therein and removable by Tenant as provided in Article 14) constitute
and are hereinafter referred to as the "PHASE II PORTION" and are identified as
such on said EXHIBIT B1. Those portions of the Phase II Portion which, on the
date hereof or from time to time hereafter prior to the Phase II Effective Date,
are, or become, vacant and free of tenancies and other occupancy agreements, are
hereinafter collectively referred to as the "VACANT PHASE II PORTION."
(c) Landlord and Tenant further acknowledge that Landlord presently
leases to various tenants (collectively, the "PHASE III TENANTS"), pursuant to
various leases (collectively, the "PHASE III LEASE"), the latest fixed
expiration date of which is October 31, 2000 (taking into account Landlord's
timely exercise of any termination rights of Landlord contained in the Phase III
Lease), portions of the twenty-first (21st) floor of the Building, substantially
where shown on the floor plan annexed hereto as EXHIBIT B2. The entire
twenty-first (21st) floor of the Building, together with all fixtures and
equipment which on the Phase III Effective Date (as hereinafter defined), or
during the Term of this lease after the Phase III Effective Date are attached
thereto (except items not deemed to be included therein and removable by Tenant
as provided in Article 14) constitute and are hereinafter referred to as the
"PHASE III PORTION" and are identified as such on said EXHIBIT B2. Those
portions of the Phase III Portion which, on the date hereof or from time to time
hereafter prior to the Phase III Effective Date, are, or become, vacant and free
of tenancies and other occupancy agreements, are hereinafter collectively
referred to as the "VACANT PHASE III PORTION."
(d) Landlord and Tenant further acknowledge that Landlord presently
leases to Federated Department Stores, Inc. (the "PHASE IV TENANT"), pursuant to
a lease dated August 1, 1997, as amended by agreement dated June 30, 1997 (the
"PHASE IV LEASE") which is fixed to expire on December 31, 2002, the entire
thirteenth (13th) floor of the Building, substantially where shown on the floor
plan annexed hereto as EXHIBIT B3. The entire thirteenth (13th) floor of the
Building, together with all fixtures and equipment which on the PHASE IV
Effective Date (as hereinafter defined), or during the Term of this lease after
the PHASE IV Effective Date are attached thereto (except items not deemed to be
included therein and removable by Tenant as provided in Article 14) constitute
and are hereinafter referred to as the "PHASE IV PORTION" and are identified as
such on said EXHIBIT B3.
2
<PAGE>
(e) At any time after the date of this lease, Tenant shall have the
right to request Landlord to perform in the Vacant Phase II Portion (as of the
date of such request), the Landlord's Work in respect of the Phase II Portion,
Tenant hereby agreeing that portions of the Landlord's Work to make the Vacant
Phase II Portion "ready for occupancy" (as defined in Article 4 hereof) may not
be capable of being substantially completed during such time that the Phase II
Portion is occupied by any of the Phase II Tenants. If Tenant makes such
request, Landlord agrees promptly to meet with Tenant to discuss and agree upon,
if possible, a schedule for Landlord to substantially complete the Landlord's
Work in the balance of the Phase II Portion after the Phase II Tenants have
vacated the Phase II Portion. If Landlord and Tenant cannot agree upon such a
schedule that is reasonably acceptable to both Landlord and Tenant, then
Landlord shall have no obligation to perform any Landlord's Work in the Vacant
Phase II Portion prior to all Phase II Tenants vacating the Phase II Portion. If
Landlord and Tenant agree upon a schedule that is reasonably acceptable to both
Landlord and Tenant, then, provided no Event of Default exists, Landlord shall
commence promptly (and thereafter proceed with due diligence) the Landlord's
Work in respect of the Phase II Portion in such Vacant Phase II Portion.
Notwithstanding anything contained in this lease which may be deemed to the
contrary, there shall be no penalties assessed against Landlord, and Tenant
shall have no rights or remedies against Landlord, in the event that the
Landlord's Work to be performed in the Vacant Phase II Portion (as opposed to
the entire Phase II Portion) is not completed by a certain date. From and after
the date (the "VACANT PHASE II EFFECTIVE DATE") that such Vacant Phase II
Portion is "ready for occupancy" (as defined in Article 4 hereof), such Vacant
Phase II Portion shall be added to the Phase I Portion as the premises leased
and demised to Tenant under this lease. From and after the date (the "PHASE II
EFFECTIVE DATE") that the entire Phase II Portion is "ready for occupancy" (as
defined in Article 4 hereof), the entire Phase II Portion (if no portion of the
Phase II Portion had previously been added to the Phase I Portion) or the
balance of the Phase II Portion (if any portion of the Phase II Portion had
previously been added to the Phase I Portion), as the case may be, shall be
added to the Phase I Portion as the premises leased and demised to Tenant under
this lease.
(f) At any time after August 31, 2001, Tenant shall have the right
to request Landlord to perform in the Vacant Phase III Portion (as of the date
of such request), the Landlord's Work in respect of the Phase III Portion,
Tenant hereby agreeing that portions of the Landlord's Work to make the Vacant
Phase III Portion "READY FOR OCCUPANCY" (as defined in Article 4 hereof) may not
be capable of being substantially completed during such time that the Phase III
Portion is occupied by any of the Phase III Tenants. If Tenant makes such
request, Landlord agrees promptly to meet with Tenant to discuss and agree upon,
if possible, a schedule for Landlord to substantially complete the Landlord's
Work in the balance of the Phase III Portion after the Phase III Tenants have
vacated the Phase III Portion. If Landlord and Tenant cannot agree upon such a
schedule that is reasonably acceptable to both Landlord and Tenant, then
Landlord shall have no obligation to perform any Landlord's Work in the Vacant
Phase III Portion prior to all Phase III Tenants vacating the Phase III Portion.
If Landlord and Tenant agree upon a schedule that is reasonably acceptable to
both Landlord and Tenant, then, provided no Event of Default exists, Landlord
shall commence promptly (and thereafter proceed with due diligence) the
Landlord's Work in respect of the Phase III Portion in such Vacant Phase III
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Portion. Notwithstanding anything contained in this lease which may be deemed to
the contrary, there shall be no penalties assessed against Landlord, and Tenant
shall have no rights or remedies against Landlord, in the event that the
Landlord's Work to be performed in the Vacant Phase III Portion (as opposed to
the entire Phase III Portion) is not completed by a certain date. From and after
the date (the "VACANT PHASE III EFFECTIVE DATE") that such Vacant Phase III
Portion is "ready for occupancy" (as defined in Article 4 hereof), such Vacant
Phase III Portion shall be added to the Phase I Portion (and to the Phase II
Portion, to the extent that the Phase II Portion was previously added to the
Phase I Portion as the premises leased and demised to Tenant under this lease)
as the premises leased and demised to Tenant under this lease. From and after
the date (the "PHASE III EFFECTIVE DATE") that is the later of (i) October 31,
2000, and (ii) the date on which the entire Phase III Portion is "ready for
occupancy" (as defined in Article 4 hereof), the entire Phase III Portion (if no
portion of the Phase III Portion had previously been added to the Phase I
Portion) or the balance of the Phase III Portion (if any portion of the Phase
III Portion had previously been added to the Phase I Portion) shall be added to
the Phase I Portion (and to the Phase II Portion, to the extent that the Phase
II Portion was previously added to the Phase I Portion as the premises leased
and demised to Tenant under this lease) as the premises leased and demised to
Tenant under this lease.
(g) From and after the date (the "PHASE IV EFFECTIVE DATE") that is
the later of (i) December 1, 2002,and (ii) the date on which the PHASE IV
Portion is "ready for occupancy" (as defined in Article 4 hereof), the PHASE IV
Portion shall be added to the PHASE I Portion (and to the PHASE II Portion
and/or to the PHASE III Portion, to the extent that the Phase II Portion and/or
the PHASE III Portion were previously added to the PHASE I Portion as the
premises leased and demised to Tenant under this lease) as the premises leased
and demised to Tenant under this lease.
(h) The Phase I Portion constitutes and is herein referred to as the
"DEMISED PREMISES," subject to the balance of this subsection (h), except that
if the Commencement Date has occurred but (i) the 19th Floor is not "ready for
occupancy," and (ii) neither Tenant, nor any person or entity claiming by,
through or under Tenant, has occupied any portion of the 19th Floor for the
transaction of business, then, except as otherwise provided in subsection
4.02(l) below, the 19th Floor shall only be added to, and shall only constitute
a part of, the "DEMISED PREMISES" on the date (the "19TH FLOOR EFFECTIVE DATE")
which is the earlier of (A) the date on which the entire 19th Floor is "ready
for occupancy" (as defined in Article 4 hereof) and (B) the date Tenant, or
person or entity claiming by, through or under Tenant, first occupies any
portion of the 19th Floor for the transaction of business. From and after the
Vacant Phase II Effective Date (if any), the Vacant Phase II Portion shall be
added to, and shall constitute a part of, the "DEMISED PREMISES." From and after
the Phase II Effective Date, the balance of the Phase II Portion (if the Vacant
Phase II Effective Date occurred) or the entire Phase II Portion (if the Vacant
Phase II Effective Date has not occurred) shall be added to, and constitute a
part of, the "DEMISED PREMISES." From and after the Vacant Phase III Effective
Date (if any), the Vacant Phase III Portion shall be added to, and shall
constitute a part of, the "DEMISED PREMISES." From and after the Phase III
Effective Date, the balance of the Phase III Portion (if the Vacant Phase III
Effective Date occurred) or the entire Phase III Portion (if the Vacant Phase
III Effective Date has not occurred) shall be added to, and constitute a part
of, the "DEMISED PREMISES." From and
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after the Phase IV Effective Date, the Phase IV Portion shall be added to, and
constitute a part of, the "DEMISED PREMISES."
(i) Notwithstanding the fact that the latest fixed expiration date
of the Phase II Lease is April 30, 2001 (taking into account Landlord's timely
exercise of any termination rights of Landlord contained in the Phase II Lease),
provided no Event of Defaults exists, Landlord agrees to use its "best efforts"
to have all Phase II Tenants surrender their respective portions of the Phase II
Portion in sufficient time for Landlord to make the entire Phase II Portion
ready for occupancy by December 31, 2000. For the purposes of the preceding
sentence, "best efforts" shall mean an obligation to use reasonable commercial
efforts, and shall not be interpreted to require Landlord to enter into any
agreement or undertaking to pay or otherwise confer or to actually pay or
otherwise confer anything of value to or for the benefit of a third-party
(including, without limitation, any of the Phase II Tenants), or to guarantee
any obligation. Landlord's failure or inability to obtain such surrenders
despite using such best efforts shall not be a default by Landlord and shall not
entitle Tenant to exercise any rights or remedies whatsoever, except as
otherwise expressly provided in subsection 4.02(i)(C) below.
(j) If (A) any Phase II Tenant fails to vacate and surrender the
PHASE II Portion on or before April 30, 2001, (B) any Phase III Tenant fails to
vacate and surrender the Phase III Portion on or before October 31, 2000, and/or
(C) the Phase IV Tenant fails to vacate and surrender the Phase IV Portion on or
before December 31, 2002, then and in any of such events, provided no Event of
Default exists, Landlord shall use its best efforts (as hereinafter defined) to
have all Phase II Tenants, all Phase III Tenants and/or the Phase IV Tenant, as
the case may be, removed from the Phase II Portion, the Phase III Portion and/or
the Phase IV Portion, as the case may be, as soon as is commercially practicable
after the applicable date. For the purposes of this subsection (j), "best
efforts" shall mean an obligation to use reasonable commercial efforts, and
shall not be interpreted to require Landlord to enter into any agreement or
undertaking to pay or otherwise confer or to actually pay or otherwise confer
anything of value to or for the benefit of a third-party (including, without
limitation, such tenant) or to take any affirmative action against any Phase II
Tenant, any Phase III Tenant and/or the Phase IV Tenant, other than commencing,
and diligently prosecuting, a holdover action against the Phase II Tenants, the
Phase III Tenants and/or the Phase IV Tenant at such time as Landlord has
reasonably determined that a holdover action is appropriate, but in no event
later than May 15, 2001 with respect to the Phase II Tenants, December 1, 2000
with respect to the Phase III Tenants and January 30, 2003 with respect to the
Phase IV Tenant, unless, in Landlord's reasonable determination, commencing such
holdover actions would delay, rather than accelerate, obtaining possession of
the Phase II Portion, the Phase III Portion and/or the Phase IV Portion, as the
case may be. Landlord's failure or inability to have such tenant removed from
the premises despite using such best efforts shall not be a default by Landlord
and shall not entitle Tenant to exercise any rights or remedies whatsoever,
except as otherwise expressly provided in subsection 4.02(i) below.
(k) If (i) Landlord is otherwise obligated to perform an obligation
under this Section 1.02 but for the existence of an Event of Default, and (ii)
Landlord does not terminate this lease as a result of such Event of Default and
accepts Tenant's cure of the default in question,
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then such obligation of Landlord shall be reinstated but the time periods (if
any) within which Landlord is obligated to perform such obligation shall be
extended by the number of days that Landlord was not obligated to perform such
obligation as a result of such Event of Default, plus any additional time that
may be reasonable, under the circumstances, for such obligation to be
reinstated. (For example, if such extended date occurs on a holiday or during a
holiday period and it would be reasonable, under the circumstances, for Landlord
to take the action in question after the holiday or holiday period, then such
extended date shall be extended further to a date after such holiday or holiday
period). In addition, if Landlord's obligations under this Section 1.02 are
extended as hereinbefore provided, then the date(s) by which Tenant may exercise
any rights or remedies under this lease as a result of Landlord failing to
perform such obligations by a certain date or within a certain period of time
(including any abatements of rent to which Tenant may be entitled) shall be
similarly extended, even if the right or remedy in question is not directly
conditioned in this lease to the performance by Landlord of such obligation.
(For example, if Tenant is entitled to an abatement of rent as a result of a
portion of the Demised Premises not being ready for occupancy by a certain date,
and a reason for such portion of the Demised Premises not being so ready for
occupancy is because of the holdover by an existing Tenant, and Landlord's
obligation to use it "best efforts" to have such existing Tenant surrender its
portion of the Demised Premises was extended as a result of an Event of Default,
then the date by which such portion of the Demised Premises is to be ready for
occupancy before Tenant is entitled to an abatement of rent shall be extended).
1.03 (a) The term of this lease (hereinafter referred to as the "TERM"
or "TERM"), for which the Demised Premises are hereby leased, shall commence on
a date (hereinafter referred to as the "COMMENCEMENT DATE") which shall be the
earlier of (i) the date on which the 18th and 20th floor portions of the PHASE I
Portion are "ready for occupancy" (as defined in Article 4 hereof) and (ii) the
date Tenant, or person or entity claiming by, through or under Tenant, first
occupies any portion of the PHASE I Portion for the transaction of business, and
shall end at noon on the last day of the calendar month in which occurs the day
next preceding the fifteenth (15th) anniversary of the Rent Commencement Date
(as hereinafter defined) (without taking into account any extension of the Phase
I Rent Abatement Period or the 19th Floor Rent Abatement Period (as such terms
are hereunder defined) pursuant to Section 4.02 below) (which ending date is
hereinafter referred to as the "EXPIRATION DATE"), or shall end on such earlier
date upon which said term may expire or be cancelled or terminated pursuant to
any of the conditions or covenants of this lease or pursuant to law, regardless
of whether or not the 19th Floor Effective Date, the Vacant Phase II Effective
Date, the PHASE II Effective Date, the Vacant Phase III Effective Date, the
PHASE III Effective Date or the Phase IV Effective Date shall have occurred. If
the term of this lease ends prior to the occurrence of the 19th Floor Effective
Date, the Vacant Phase II Effective Date, the PHASE II Effective Date, the
Vacant Phase III Effective Date, the PHASE III Effective Date or the Phase IV
Effective Date, the term of this lease shall not be reinstated if the conditions
to the occurrence of the 19th Floor Effective Date, the Vacant Phase II
Effective Date, the PHASE II Effective Date, the Vacant Phase III Effective
Date, the PHASE III Effective Date or the Phase IV Effective Date have
coincidentally theretofore or thereafter occurred. Promptly following the
Commencement Date, the 19th Floor Effective Date (provided the 19th Floor
Effective Date shall have occurred), the Vacant Phase II Effective Date
(provided the Vacant Phase II Effective Date shall have occurred), the PHASE II
Effective Date (provided
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the PHASE II Effective Date shall have occurred), the Vacant Phase III Effective
Date (provided the Vacant Phase III Effective Date shall have occurred), the
PHASE III Effective Date (provided the PHASE III Effective Date shall have
occurred) and the Phase IV Effective Date (provided the Phase IV Effective Date
shall have occurred), the parties hereto hereinafter sometimes referred to as
the "PARTIES") shall enter into a recordable supplementary agreement fixing the
dates of the Commencement Date, the 19th Floor Effective Date (provided the 19th
Floor Effective Date shall have occurred), the Vacant Phase II Effective Date
(provided the Vacant Phase II Effective Date shall have occurred), the PHASE II
Effective Date (provided the PHASE II Effective Date shall have occurred), the
Vacant Phase III Effective Date (provided the Vacant Phase III Effective Date
shall have occurred), the PHASE III Effective Date (provided the PHASE III
Effective Date shall have occurred) and the Phase IV Effective Date (provided
the Phase IV Effective Date shall have occurred) and the Expiration Date and if
they cannot agree on the Commencement Date, the 19th Floor Effective Date, the
Vacant Phase II Effective Date, the PHASE II Effective Date, the Vacant Phase
III Effective Date, the PHASE III Effective Date or the Phase IV Effective Date,
as the case may be, within fifteen (15) days after Landlord's request therefor,
such dates shall be determined by arbitration in the manner provided in Article
34.
(b) Notwithstanding anything to the contrary contained in this
lease, if the 19th Floor Effective Date occurs on the date that the Commencement
Date occurs, then the 19th Floor Effective Date shall be merged into the
Commencement Date; if the Vacant Phase II Effective Date occurs on the date that
the Phase II Effective Date occurs, then the Vacant Phase II Effective Date
shall be merged into the Phase II Effective Date; and if the Vacant Phase III
Effective Date occurs on the date that the Phase III Effective Date occurs, then
the Vacant Phase III Effective Date shall merge into the Phase III Effective
Date.
1.04 The "RENTS" reserved under this lease, for the term thereof, shall
be and consist of:
(a) "FIXED RENT" of:
(i) $2,438,368.00 per year, which shall be payable in equal
monthly installments of $203,197.33, during the period (the "FIRST RENT PERIOD")
commencing on the Rent Commencement Date and ending on the last day of the
calendar month in which occurs the day next preceding the fifth (5th)
anniversary of the Rent Commencement Date, both dates inclusive;
(ii) $2,650,400.00 per year, which shall be payable in equal
monthly installments of $220,866.67 during the period (the "SECOND RENT PERIOD")
commencing on the date next succeeding the last day of the First Rent Period and
ending on the fifth (5th) anniversary of the last day of the First Rent Period,
both dates inclusive; and
(iii) $2,862,432.00 per year, which shall be payable in equal
monthly installments of $238,536.00, during the period (the "THIRD RENT PERIOD")
commencing on the date next succeeding the last day of the Second Rent Period
and continuing thereafter throughout the remainder of the Term (except as
otherwise provided in Article 40 below); and
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(iv) in addition to the amounts set forth in subsections (i),
(ii) and (iii) above, with respect to the 19th Floor:
(A) $1,228,016.00 per year ($102,334.67 per month)
during the First Rent Period, commencing on the 19th Floor Rent Commencement
Date (as hereinafter defined) and continuing thereafter for the remainder of the
First Rent Period, to the extent the 19th Floor Rent Commencement Date has
occurred during the First Rent Period;
(B) $1,334,800.00 per year ($111,233.33 per month)
during the Second Rent Period, to the extent the 19th Floor Rent Commencement
Date has occurred during or prior to the Second Rent Period; and
(C) $1,441,584.00 per year ($120,132.00 per month)
during the Third Rent Period, to the extent the 19th Floor Rent
Commencement Date has occurred during or prior to the Third Rent Period;
and
(v) in addition to the amounts set forth in subsections
(i), (ii), (iii) and (iv) above, with respect to the Phase II Portion:
(A) $1,382,392.00 per year ($115,199.33 per month)
during the First Rent Period, commencing on the Phase II Effective Date
and continuing thereafter for the remainder of the First Rent Period, to
the extent the Phase II Effective Date has occurred during the First Rent
Period;
(B) $1,502,600.00 per year ($125,216.67 per month)
during the Second Rent Period, to the extent the Phase II Effective Date
has occurred during or prior to the Second Rent Period; and
(C) $1,622,808.00 per year ($135,234.00 per month)
during the Third Rent Period, to the extent the Phase II Effective Date has
occurred during or prior to the Third Rent Period; and
(vi) In addition to the amounts set forth in subsections (i),
(ii), (iii), (iv) and (v) above, with respect to the Phase III Portion:
(A) $1,064,256.00 per year ($88,688.00 per month) during
the First Rent Period, commencing on the PHASE III Effective Date and continuing
thereafter for the remainder of the First Rent Period, to the extent the Phase
III Effective Date has occurred during the First Rent Period;
(B) $1,156,800.00 per year ($96,400.00 per month) during
the Second Rent Period, to the extent the Phase III Effective Date has occurred
during or prior to the Second Rent Period; and
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(C) $1,249,344.00 per year ($104,112.00 per month)
during the Third Rent Period, to the extent the Phase III Effective Date has
occurred during or prior to the Third Rent Period; and
(vii) in addition to the amounts set forth in subsections (i),
(ii), (iii), (iv), (v) and (vi) above, with respect to the Phase IV Portion:
(A) $1,586,948.00 per year ($132,245.67 per month)
during the First Rent Period commencing on the Phase IV Effective Date and
continuing thereafter for the remainder of the First Rent Period, to the extent
the Phase IV Effective Date has occurred during the First Rent Period;
(B) $1,731,216.00 per year ($144,268.00 per month)
during the Second Rent Period, to the extent the Phase IV Effective Date has
occurred during or prior to the Second Rent Period; and
(C) $1,875,484.00 per year ($156,290.33 per month)
during the Third Rent Period, to the extent the Phase IV Effective Date has
occurred during or prior to the Third Rent Period, all of which Tenant covenants
and agrees to pay in advance on the first day of each and every calendar month
during the term of this lease (except that Tenant shall pay, upon the execution
and delivery of this lease by Tenant, the amount of $305,532.00, to be applied
against the first rents becoming due under this lease; and
(b) "ADDITIONAL RENT" consisting of all such other sums of money as
shall become due from and payable by Tenant to Landlord hereunder (for default
in payment of which Landlord shall have the same remedies as for a default in
payment of fixed rent); all to be paid to Landlord at its office, or such other
place, or to such agent and at such place, as Landlord may designate by notice
to Tenant, in lawful money of the United States of America.
1.05 05 Tenant shall pay the fixed rent and additional rent herein
reserved promptly as and when the same shall become due and payable, without
demand therefor and without any abatement, deduction, setoff or claim
whatsoever, except as expressly authorized in this lease.
1.06 06 If the Rent Commencement Date, the 19th Floor Rent Commencement
Date, the PHASE II Effective Date, the PHASE III Effective Date or the Phase IV
Effective Date occur on a day other than the first day of a calendar month, the
fixed rent for such calendar month(s) shall be prorated.
1.07 07 Tenant acknowledges that it has no rights to any development
rights, "air rights" or comparable rights appurtenant to the Land and Building,
and consents, without further consideration, to any utilization of such rights
by Landlord and agrees, at no cost or expense to Tenant (other than a DE MINIMIS
cost or expense) to promptly execute and deliver any instruments
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which may be requested by Landlord, including instruments merging zoning lots,
evidencing such acknowledgment and consent. The provisions of this Section l.07
shall be deemed to be and shall be construed as an express waiver by Tenant of
any interest Tenant may have as a "party in interest" (as such quoted term is
defined in Section 12-10 Zoning Lot of the Zoning Resolution of the City of New
York) in the Land and Building.
1.08 Each and every covenant contained in this Article shall be deemed
separate and independent, and not dependent on any other term of this lease for
the use and occupancy of the Demised Premises by Tenant, and the performance of
any such term shall not be considered to be for rent or other payment for use of
the Demised Premises. It is understood that the consideration for the covenants
in this Article is the making of this lease, and the damages for failure to
perform same shall be in addition to and separate and independent of the damages
accruing by reason of default in observing any other term of this lease.
1.09 (a) For purposes of this lease, the term "RENT COMMENCEMENT Date"
shall mean the date which is six (6) months after the Commencement Date, it
being agreed and understood that Tenant shall have no obligation to pay any
fixed rent for the 18th, 20th and (if the 19th Floor Effective Date occurs on
the Commencement Date) 19th floors of the Building during the period (THE "PHASE
I RENT ABATEMENT PERIOD") from the Commencement Date through the date next
preceding the Rent Commencement Date.
(b) If the 19th Floor Effective Date occurs after the Commencement
Date, then for the purposes of this lease, the term "19TH FLOOR RENT
COMMENCEMENT DATE" shall mean the date which is six (6) months after the 19th
Floor Effective Date, it being agreed and understood that Tenant shall have no
obligation to pay any fixed rent for the 19th Floor during the period (the "19TH
FLOOR RENT ABATEMENT PERIOD") from the 19th Floor Effective Date through the
date next preceding the 19th Floor Rent Commencement Date.
(c) If, pursuant to subsections 4.02(i) below, the Phase I Rent
Abatement Period or (if the 19th Floor Effective Date occurs after the
Commencement Date) the 19th Floor Rent Abatement Period, is extended either for
the 18th, 19th or 20th floor portions of the Building, the abatement of fixed
rent shall be apportioned on a per rentable square foot basis, based upon the
rentable areas described in subsection 5.01(e) below, it being acknowledged and
agreed that except as otherwise provided in subsection 4.02(l) below, an
extension of the Phase I Rent Abatement Period and (if the 19th Floor Effective
Date occurs after the Commencement Date) an extension of the 19th Floor Rent
Abatement Period shall apply to the entire 18th, 19th and/or 20th floor
portions, as the case may be, of the Building.
1.10 Unless an Event of Default occurs during any of the following
periods and Landlord terminates this lease as a result of such Event of Default,
Landlord waives the right to collect:
(a) the fixed rent attributable to the Phase II Portion for the
period (the "PHASE II RENT ABATEMENT PERIOD") commencing on the Phase II
Effective Date and expiring 180 days, multiplied by the Phase II Term Fraction
(as hereinafter defined), thereafter,
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(b) the fixed rent attributable to the Phase III Portion for the
period (the "PHASE III RENT ABATEMENT PERIOD") commencing on the Phase III
Effective Date and expiring 180 days, multiplied by the Phase III Term Fraction
(as hereinafter defined), thereafter, and
(c) the fixed rent attributable to the Phase IV Portion for the
period (the "PHASE IV RENT ABATEMENT PERIOD") commencing on the Phase IV
Effective Date and expiring 180 days, multiplied by the Phase IV Term Fraction
(as hereinafter defined), thereafter.
ARTICLE 2 2
USE
2.01 (a) Tenant shall use and occupy the Demised Premises for executive
and general offices and for no other purpose.
(b) Notwithstanding anything to the contrary contained above or
elsewhere in this lease, but only to the extent permitted by the Certificate of
Occupancy for the Building and applicable laws and/or requirements of public
authorities and requirements of insurance bodies, portions of the Demised
Premises may be used for the following: (i) installation and operation of one or
more pantry areas for reheating of food but not for cooking, including microwave
oven, dwyer unit, one or more refrigerators and other similar equipment and
machines for the preparation and storage of food and beverages for Tenant's
officers and directors, employees, staff and business visitors; (ii) sale in the
Demised Premises for Tenant's officers and directors, employees, staff and
business visitors, by vending machines of any item the sale of which is not
prohibited by law, whether by Tenant or third parties; (iii) use of an area of
the Demised Premises as a lunchroom for consumption of food and beverages by
Tenant's officers and directors, employees, staff and business visitors; (iv)
installation and operation in the Demised Premises of electronic data, computer
and word processing equipment and similar business machines and printing and
other reproducing equipment; (v) installation and operation of communication
equipment (such as telecopiers, telex and the like); (vi) and exercise area
(with showers); and (vii) employee lounges.
(c) Notwithstanding anything in this lease to the contrary, the
Tenant covenants and agrees that during the term of this lease, it will not use
the Demised Premises or any part thereof, or permit the Demised Premises or any
part thereof to be used (i) for retail banking, trust company or safe deposit
business; (ii) as a retail commercial or savings bank, a trust company, a
savings and loan association, a loan company, or a credit union; (iii) for the
sale of travelers checks, money orders and/or foreign exchange; (iv) as a
mailing address or telephone answering service; (v) by the United States
Government, the City or State of New York, any foreign government, an autonomous
governmental corporation, a trade mission, the United Nations or any agency or
department of any of the foregoing, or any other person or entity having
sovereign or diplomatic immunity; (vi) as an employment agency, search firm or
similar enterprise; (vii) for classrooms or as a school, teaching center (other
than for employee training programs), learning center, studying center or
vocational training center; (viii) as a diagnostic medical center and/or for the
practice of medicine; or (ix) any use (other than the uses expressly permitted
in subsections 2.01 (a) and (b) above) which is prohibited under an existing
lease for space in the Building, provided Tenant has been given notice of such
prohibition, which notice
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may be given prior to, or after, the date on which such prohibited use is first
conducted in the Demised Premises.
2.02 If any governmental license or permit, other than a Certificate of
Occupancy for the mere occupancy of the Demised Premises for the purposes set
forth in Section 2.01(a), shall be required for the proper and lawful conduct of
Tenant's business in the Demised Premises, or any part thereof, Tenant, at its
expense, shall duly procure and thereafter maintain such license or permit and
submit the same for inspection by Landlord. Tenant shall at all times comply
with the terms and conditions of each such license or permit.
2.03 Tenant shall not at any time use or occupy, or suffer or permit
anyone to use or occupy, the Demised Premises, or do or permit anything to be
done in the Demised Premises, in violation of the Certificate of Occupancy for
the Demised Premises or for the Building or in violation of any laws and/or
requirements of public authorities, any requirements of insurance bodies, or any
superior mortgage or superior lease, provided, in the case of a superior
mortgage or superior lease, Tenant has been given notice of the applicable
prohibition or restriction contained therein, which notice may be given prior
to, or after, the date on which the prohibited or restricted use or occupancy is
first conducted in the Demised Premises. Landlord agrees that the mere use (as
opposed to the manner of use) of the Demised Premises for the purposes expressly
permitted under subsection 2.01(a) above shall not violate any of the foregoing.
ARTICLE 3 3
FAILURE TO GIVE POSSESSION
3.01 If the Demised Premises or any additional space to be included
within the Demised Premises shall not be available for occupancy by Tenant on
the specific date hereinbefore designated for the commencement of the term of
this lease or for the inclusion of such space for any reason whatsoever, then
this lease shall not be affected thereby but, in such case, said specific date
shall be deemed to be postponed until the date when the Demised Premises or the
additional space, as the case may be, shall be available for occupancy by
Tenant, and Tenant shall not be entitled to possession of the Demised Premises
or the additional space until the same are available for occupancy by Tenant;
provided, however, Tenant shall have no claim against Landlord (except as may
otherwise be expressly provided in this lease), and Landlord shall have no
liability to Tenant (except as may otherwise be expressly provided in this
lease) by reason of any such postponement of said specific date, and the parties
hereto further agree that any failure to have the Demised Premises or such
additional space available for occupancy by Tenant on said specific date or on
the Commencement Date shall in no way affect the obligations of Tenant hereunder
nor shall the same be construed in any way to extend the term of this lease.
This Section 3.01 shall be deemed to be an express provision to the contrary of
Section 223-a of the Real Property Law of the State of New York and any other
law of like import now or hereafter in force.
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ARTICLE 4 4
PREPARATION OF THE DEMISED PREMISES; LANDLORD'S WORK; POST-COMMENCEMENT
LANDLORD'S WORK; BASE BUILDING WORK
4.01 (a) Tenant acknowledges that it has made a full and complete
inspection of the Demised Premises, and Tenant agrees to accept same on the
Commencement Date (or, with respect to the 19th Floor, the Vacant Phase II
Portion, the balance of the Phase II Portion, the Vacant Phase III Portion, the
balance of the Phase III Portion and the Phase IV Portion, on the 19th Floor
Effective Date, on the Vacant Phase II Effective Date, on the Phase II Effective
Date, on the Vacant Phase III Effective Date, on the Phase III Effective Date
and on the Phase IV Effective Date, respectively) in their present "AS-IS"
condition, except for the performance of Landlord's Work and Post-Commencement
Landlord's Work (as such terms are hereinafter defined). Tenant acknowledges
that neither Landlord, nor Landlord's agent, has made any representations or
promises in regard to the Demised Premises, except as otherwise expressly set
forth in this lease. The opening for business by Tenant in the Demised Premises
(as such term is modified from time to time pursuant to subsection 1.02(h)
above) shall be conclusive evidence as against Tenant that the Demised Premises
were in good and satisfactory condition at the time such possession was taken
(except for the completion of any incomplete or defective items of Landlord's
Work or Post-Commencement Landlord's Work), however, Tenant's failure, refusal
or inability to open for business in the Demised Premises shall not be deemed
evidence that the Demised Premises were not in good or satisfactory condition or
that the Demised Premises were not ready for occupancy.
(b) Any installations, materials and work, other than the Landlord's
Work and the Post-Commencement Landlord's Work, which may be undertaken by or
for the account of Tenant to equip, decorate and furnish the Demised Premises
for Tenant's initial occupancy thereof (hereinafter referred to as "TENANT'S
WORK") shall be performed by Tenant, at Tenant's sole cost and expense in
accordance with the terms, covenants and conditions set forth in this lease,
including, without limitation, Articles 13 and 14 hereof. As part of Tenant's
Work, Tenant agrees to perform the work described in Sections 10.04 and 10.05
below. If at the time Tenant is ready to commence Tenant's Work the Landlord's
Work described in Paragraph 1 of Part II of Exhibit G hereto has not been
substantially completed, then until such Landlord's Work has been substantially
completed, Landlord shall provide the Demised Premises with temporary electric
power so as to enable Tenant to perform the Tenant's Work, at the rate of $1.00
per annum per rentable square foot of the Phase I Portion, the Vacant Phase II
Portion, the balance of the Phase II Portion, the Vacant Phase III Portion, the
balance of the Vacant Phase III Portion, and the Phase IV Portion, as the case
may be (prorated to the actual number of days between the Commencement Date, or
(with respect to the 19th Floor, the Vacant Phase II Portion, the balance of the
Vacant Phase II Portion, the Vacant Phase III Portion, the balance of the Phase
III Portion and the Phase IV Portion), the 19th Floor Effective Date, the Vacant
Phase II Effective Date, the Phase II Effective Date, the Vacant Phase III
Effective Date, the Phase III Effective Date and the Phase IV Effective Date,
respectively, and the date that the Landlord's Work described in Paragraph 1 of
Part II of Exhibit G hereto has been substantially completed), which sum shall
be paid to Landlord as additional rent within fifteen (15) days after Landlord's
demand therefor.
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4.02 (a) Landlord agrees to perform the work (collectively, the
"LANDLORD'S WORK") described in Part I of Exhibit G to this lease, which by this
reference is made a part hereof, and the work (collectively, the
"POST-COMMENCEMENT WORK") described in Part II of Exhibit G to this lease. The
Landlord's Work and the Post-Commencement Landlord's Work shall be performed by
Landlord, at its sole cost and expense.
(b) Each floor of the Phase I Portion (including the 19th Floor)
shall be "READY FOR OCCUPANCY" on the earliest date on which all of the
following conditions have been met:
(i) Landlord's Work, with respect to the floor in question,
has been (or is deemed to be) substantially completed, and when the only items
thereof remaining to be performed (hereinafter referred to as "PUNCH-LIST
ITEMS") are minor or insubstantial details of construction, mechanical
adjustment or decoration, the non-completion of which does not materially
interfere with Tenant's ability to perform any items of Tenant's Work therein or
with Tenant's use of such floor; and
(ii) Five (5) business days shall have elapsed from the date
on which Landlord gives Tenant a notice (a "COMPLETION NOTICE") that Landlord's
Work, with respect to such floor, has been or will be substantially completed.
(c) The entire Phase II Portion (or the Vacant Phase II Portion,
as the case may be) shall be deemed "READY FOR OCCUPANCY" on the earliest date
on which all of the following conditions have been met:
(i) Landlord's Work, with respect to the entire Phase II
Portion (or the Vacant Phase II Portion, as the case may be), has been (or is
deemed to be) substantially completed, and when the only items thereof remaining
to be performed (hereinafter referred to as "PUNCH-LIST ITEMS") are minor or
insubstantial details of construction, mechanical adjustment or decoration, the
non-completion of which does not materially interfere with Tenant's ability to
perform any items of Tenant's Work therein or with Tenant's use of the entire
Phase II Portion (or the Vacant Phase II Portion, as the case may be); and
(ii) Five (5) business days shall have elapsed from the date
on which Landlord gives Tenant a notice (a "COMPLETION NOTICE") that Landlord's
Work, with respect to the Vacant Phase II Portion or the balance of the Phase II
Portion, as the case may be, has been or will be substantially completed.
(d) The entire Phase III Portion (or the Vacant Phase III Portion,
as the case may be) shall be deemed "READY FOR OCCUPANCY" on the earliest date
on which all of the following conditions have been met:
(i) Landlord's Work, with respect to the entire Phase III
Portion (or the Vacant Phase III Portion, as the case may be), has been (or is
deemed to be) substantially completed, and when the only items thereof remaining
to be performed (hereinafter referred to as "PUNCH-LIST ITEMS") are minor or
insubstantial details of construction, mechanical adjustment
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or decoration, the non-completion of which does not materially interfere with
Tenant's ability to perform any items of Tenant's Work therein or with Tenant's
use of the entire Phase III Portion (or the Vacant Phase III Portion, as the
case may be); and
(ii) Five (5) business days shall have elapsed from the date
on which Landlord gives Tenant a notice (a "COMPLETION NOTICE") that Landlord's
Work, with respect to the Vacant Phase III Portion or the balance of the Phase
III Portion, as the case may be, has been or will be substantially completed.
(e) The Phase IV Portion shall be deemed "READY FOR OCCUPANCY" on
the earliest date on which all of the following conditions have been met:
(i) Landlord's Work, with respect to the Phase IV Portion, has
been (or is deemed to be) substantially completed, and when the only items
thereof remaining to be performed (hereinafter referred to as "PUNCH-LIST
ITEMS") are minor or insubstantial details of construction, mechanical
adjustment or decoration, the non-completion of which does not materially
interfere with Tenant's ability to perform any items of Tenant's Work therein or
with Tenant's use of the Phase IV Portion; and
(ii) Five (5) business days shall have elapsed from the date
on which Landlord gives Tenant a notice (a "COMPLETION NOTICE") that Landlord's
Work, with respect to the Phase IV Portion, has been or will be substantially
completed.
(f) Within fifteen (15) business days after the Commencement Date,
the 19th Floor Effective Date (if same occurs after the Commencement Date), the
Vacant Phase II Effective Date, the Phase II Effective Date, the Vacant Phase
III Effective Date, the Phase III Effective Date and the Phase IV Effective Date
(TIME BEING OF THE ESSENCE IN ALL CASES), Tenant shall notify Landlord of all
Punch-List Items that Tenant wants Landlord to complete with respect to the
Phase I Portion, the 19th Floor (if the 19th Floor Effective Date occurs after
the Commencement Date), the Vacant Phase II Portion, the balance of the Phase II
Portion, the Vacant Phase III Portion, the balance of the Phase III Portion and
the Phase IV Portion, respectively. To the extent that Tenant gives such notice
to Landlord in such time period, Landlord, with all reasonable dispatch, shall
complete all Punch-List Items set forth in said notice.
(g) If the substantial completion of the Landlord's Work (including
the Window Work (as defined in Exhibit G)) or Post-Commencement Landlord's Work,
in any portion of the Phase I Portion, the Vacant Phase II Portion, the balance
of the Phase II Portion, the Vacant Phase III Portion, the balance of the Phase
III Portion and/or the Phase IV Portion, or if the substantial completion of the
Lavatory Renovation Work (as defined in Exhibit G hereto) in any portion of the
Demised Premises, or if the substantial completion of any portion of the Base
Building Work (as defined in Section 4.09 below) in any portion of the Building,
shall be delayed due to any act or omission of Tenant or any of its employees,
agents or contractors (any such act of omission being hereinafter referred to as
a "TENANT DELAY"), then, in addition to the extensions referred to in subsection
1.02(k) above, the Landlord's Work or Post-Commencement
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Landlord's Work, as the case may be, in any such portions of the Phase I
Portion, the Vacant Phase II Portion, the balance of the Phase II Portion, the
Vacant Phase III Portion, the balance of the Phase III Portion and/or the Phase
IV Portion, as the case may be, or the applicable Lavatory Renovation Work, or
the Base Building Work in question, as the case may be, shall be deemed
substantially complete on the date it would have been substantially complete but
for such delay. For the purposes of this lease, a "TENANT DELAY" in
substantially completing the Landlord's Work (but not the Post-Commencement
Landlord's Work or the Lavatory Renovation Work) in any floor of the Phase I
Portion shall include a delay resulting from the use or occupancy by Tenant or
by any person claiming by, through or under Tenant (including Tenant's
contractors and subcontractors ) of the portions of the 19th Floor used and
occupied from and after the 19th Floor Effective Date (as such term is defined
in subsection 4.02(l) below), a "TENANT DELAY" in substantially completing the
Landlord's Work (but not the Post-Commencement Landlord's Work or the Lavatory
Renovation Work) in the Phase II Portion shall include a delay resulting from
the use or occupancy by Tenant or by any person claiming by, through or under
Tenant (including Tenant's contractors and subcontractors ) of the Vacant Phase
II Portion on or after the Vacant Phase II Effective Date, and a "TENANT DELAY"
in substantially completing the Landlord's Work (but not the Post-Commencement
Landlord's Work or the Lavatory Renovation Work) in the Phase III Portion shall
include a delay resulting from the use or occupancy by Tenant or by any person
claiming by, through or under Tenant (including Tenant's contractors and
subcontractors ) of the Vacant Phase III Portion on or after the Vacant Phase
III Effective Date.
(h) Each Completion Notice shall be deemed conclusive and binding
upon Tenant unless (except as otherwise expressly provided in subsection 4.02(l)
below), by giving Landlord notice (the "DISPUTE NOTICE") within five (5)
business days after Landlord gives the Completion Notice to Tenant (TIME BEING
OF THE ESSENCE IN ALL CASES), Tenant disputes the substantial completion (or
deemed substantial completion) of the Landlord's Work. Pending the resolution of
such dispute Tenant's obligation to pay fixed rent and additional rent shall
commence as if the Completion Notice was correct. If Landlord and Tenant cannot
resolve such dispute within fifteen (15) days after Landlord receives the
Dispute Notice from Tenant, such dispute shall be resolved by arbitration
pursuant to Article 34 below. If the dispute (whether by agreement or
arbitration) is resolved in Tenant's favor, then the commencement of Tenant's
obligation to pay fixed rent and additional rent shall be adjusted accordingly
and any overpayments of fixed rent or additional rent shall be applied against
the next installment(s) of fixed rent and additional rent due under this lease.
(i) (A) If the entire 18th and 20th floor portions of the Phase I
Portion are not ready for occupancy by April 1, 2000, then, as Tenant's sole and
exclusive right and remedy, the Phase I Rent Abatement Period for such floors
shall be extended by one and one-half (1 1/2) days for each day after April 1,
2000 that such floors of the Phase I Portion are not ready for occupancy, except
that if such floors of the Phase I Portion are not ready for occupancy by the
last day of the two (2) month period commencing on April 1, 2000, the Phase I
Rent Abatement Period for such floors of the Phase I Portion shall be extended
by two (2) days for each day after the last day of such two (2) month period
that such floors of the Phase I Portion are not ready for occupancy. Such
extension of the Phase I Rent Abatement Period shall not extend the Expiration
Date.
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(B) If the 19th Floor is not ready for occupancy by
April 1, 2000, then, as Tenant's sole and exclusive right and remedy, the Phase
I Rent Abatement Period for such floor (or the 19th Floor Rent Abatement Period
(if the 19th Floor Effective Date occurs after the Commencement Date, as the
case may be) shall be extended by two (2) days for each day after April 1, 2000
that such floor of the Phase I Portion is not ready for occupancy. Such
extension of the Phase I Rent Abatement Period or the 19th Floor Rent Abatement
Period shall not extend the Expiration Date.
(C) If the Phase II Portion is not ready for occupancy
by June 1, 2001,then, as Tenant's sole and exclusive right and remedy, the Phase
II Rent Abatement Period shall be extended by two (2) days for each day after
June 1, 2001 that the Phase II Portion is not ready for occupancy.
(D) If the Phase III Portion is not ready for occupancy
by December 1, 2002, then, as Tenant's sole and exclusive right and remedy, the
Phase III Rent Abatement Period shall be extended by two (2) days for each day
after December 1, 2002 that the Phase III Portion is not ready for occupancy.
(E) If the Phase IV Portion is not ready for occupancy
by December 1, 2003, then, as Tenant's sole and exclusive right and remedy, the
Phase IV Rent Abatement Period shall be extended by two (2) days for each day
after December 1, 2003 that the Phase IV Portion is not ready for occupancy.
(F) (i) If the Window Work for any floor of the Phase
I Portion is not substantially completed (or deemed substantially completed) by
May 15, 2000, then as Tenant's sole and exclusive right and remedy, the Phase I
Rent Abatement Period (or, if the 19th Floor Effective Date occurs after the
Commencement Date, the 19th Floor Rent Abatement Period) for the floor(s) in
question shall be extended by one and one-half (1 1/2) days for each day after
May 15, 2000 that the Window Work for such floor(s) of the Phase I Portion is
not substantially completed. Such extension of the Phase I Rent Abatement Period
or the 19th Floor Rent Abatement Period shall not extend the Expiration Date.
(ii) Notwithstanding anything contained in this
lease which may be deemed to the contrary, if by May 15, 2000, the entire 18th
and 20th floor portions of the Phase I Portion are not ready for occupancy, then
subsection (i) of this subsection (F) shall no longer be in force or effect for
the 18th and 20th floor portions of the Phase I Portion, and the substantial
completion of the Window Work on the 18th and 20th floor portions of the Phase I
Portion shall become a condition of the 18th and 20th floor portions of the
Phase I Portion being "ready for occupancy."
(iii) Notwithstanding anything contained in this
lease which may be deemed to the contrary, if by May 15, 2000, the entire 19th
Floor is not ready for occupancy, then subsection (i) of this subsection (F)
shall no longer be in force or effect for the 19th Floor, and the substantial
completion of the Window Work on the 19th Floor shall become a condition of the
19th Floor being "ready for occupancy."
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(G) (i) If the Lavatory Renovation Work is not
substantially completed (or deemed substantially completed) for any of the
floors of the Phase I Portion by July 1, 2000, then as Tenant's sole and
exclusive right and remedy, the Phase I Rent Abatement Period (or, if the 19th
Floor Effective Date occurs after the Commencement Date, the 19th Floor Rent
Abatement Period) for the floor(s) in question shall be extended by one (1) day
for each day after July 1, 2000 that the Lavatory Renovation Work for none of
floors of the Phase I Portion is substantially completed. Such extension of the
Phase I Rent Abatement Period or the 19th Floor Rent Abatement Period shall not
extend the Expiration Date.
(ii) If by July 1, 2000, (1) the Commencement Date
has occurred, (2) the Lavatory Renovation Work in respect of either the 18th
floor or 20th floor of the Phase I Portion has been substantially completed, and
(3) if, the Lavatory Renovation Work has been substantially completed on only
one (1) of such floors, the core lavatories on the other of such floors are in
reasonably good working order (which term, for the purposes of this subsection
(G), shall include being clean and presentable), then the Phase I Rent Abatement
Period in respect of the 18th and 20th floors of the Phase I Portion shall not
be extended pursuant to subsection (G)(i) above. If the events described in
clauses (1), (2) and (3) of this subsection (ii) occur after July 1, 2000 and
the Phase I Rent Abatement Period is being extended pursuant to subsection
(G)(i) above, then such extension shall end, with respect to the 18th and 20th
floor portions of the Phase I Portion on the date next preceding the date on
which the events described in clauses (1), (2) and (3) of this subsection (ii)
occur.
(iii) If by July 1, 2000, (1) the Commencement
Date and the 19th Floor Effective Date or the Partial 19th Floor Effective Date
has occurred, (2) the Lavatory Renovation Work in respect of at least one (1) of
floor of the Phase I Portion has been substantially completed, and (3) if, the
Lavatory Renovation Work has been substantially completed on fewer than all
three (3) floors of the Phase I Portion, the core lavatories on the other
floor(s) of the Phase I Portion are in reasonably good working order, then
neither the Phase I Rent Abatement Period nor the 19th Floor Rent Abatement
Period shall be extended pursuant to subsection (G)(i) above. If the events
described in clauses (1), (2) and (3) of this subsection (iii) occur after July
1, 2000 and the Phase I Rent Abatement Period or the 19th Floor Rent Abatement
Period is being extended pursuant to subsection (G)(i) above, then such
extension shall end for all of the Phase I Portion on the date next preceding
the date on which the events described in clauses (1), (2) and (3) of this
subsection (iii) occur, even if only the Partial 19th Floor Effective Date (as
opposed to the 19th Floor Effective Date) has occurred.
(iv) If by August 1, 2000, (1) the Lavatory
Renovation Work is not substantially completed for at least two (2) of the
floors of the Phase I Portion and (2) if by such date the 19th Floor Effective
Date or the Partial 19th Floor Effective Date has occurred, but the core
lavatories on the third (3rd) floor of the Phase I Portion are not in reasonably
good working order, then, as Tenant's sole and exclusive right and remedy, if
the Demised Premises is only the 18th and 20th floors, then the Phase I Rent
Abatement Period for the floor on which the Lavatory Renovation Work has not
been substantially complete shall be extended by one (1) day for each day after
August 1, 2000 that the Lavatory Renovation Work on such floor is not
substantially completed; and if the 19th Floor Effective Date or the Partial
19th Floor Effective Date has occurred, then the Phase I Rent Abatement Period
or the 19th Floor Rent Abatement
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Period, as the case may be, for the floor on which the Lavatory Renovation Work
has not been substantially complete shall be extended by one (1) day for each
day after August 1, 2000 that the Lavatory Renovation Work on such floor is not
substantially completed and the Phase I Rent Abatement Period or the 19th Floor
Rent Abatement Period, as the case may be, for the floor in respect of which the
core lavatories are not in reasonably good working order shall be extended by
one (1) day for each day after August 1, 2000 that such lavatory is not in
working order. Such extensions of the Phase I Rent Abatement Period or the 19th
Floor Rent Abatement Period shall not extend the Expiration Date.
(v) If by September 1, 2000, the Lavatory
Renovation Work is not substantially completed for the entire Phase I Portion,
then, as Tenant's sole and exclusive right and remedy, the Phase I Rent
Abatement Period for the floor on which the Lavatory Renovation Work has not
been substantially complete shall be extended by one (1) day for each day after
September 1, 2000 that the Lavatory Renovation Work on such floor is not
substantially completed. Such extensions of the Phase I Rent Abatement Period
shall not extend the Expiration Date.
(vi) Notwithstanding anything contained in this
lease which may be deemed to the contrary, if by July 1, 2000, the entire 18th
and 20th floor portions of the Phase I Portion are not ready for occupancy, then
this subsection (G) shall no longer be in force or affect for the 18th and 20th
floor portions of the Phase I Portion, and the substantial completion of the
Lavatory Renovation Work on the 18th and 20th floor portions of the Phase I
Portion shall become a condition of the 18th and 20th floor portions of the
Phase I Portion being "ready for occupancy."
(vii) Notwithstanding anything contained in this
lease which may be deemed to the contrary, if by July 1, 2000, the entire 19th
floor portion of the Phase I Portion is not ready for occupancy, then this
subsection (G) shall no longer be in force or affect for the 19th floor portion
of the Phase I Portion, and the substantial completion of the Lavatory
Renovation Work on the 19th floor portion of the Phase I Portion shall become a
condition of the 19th floor portion of the Phase I Portion being "ready for
occupancy."
(viii) For the purposes of clarification and
notwithstanding anything to the contrary contained in this lease, Landlord and
Tenant agree that if during the same period, the Phase I Rent Abatement Period
or the 19th Floor Rent Abatement Period for a particular floor of the Phase I
Portion would otherwise be extended as a result of a delay in the substantial
completion of both the Window Work and the Lavatory Renovation Work, then only
the provisions of this lease which provide for such extension as a result of a
delay in the substantial completion of the Window Work shall apply; except that
if during such period the Phase I Rent Abatement Period or the 19th Floor Rent
Abatement Period for a particular floor of the Phase I Portion is being extended
as a result of a delay in such floor being ready for occupancy, then only the
provisions of this lease which provide for such extension as a result of a delay
in such floor being ready for occupancy shall apply.
(j) The Window Work or Lavatory Renovation Work in any portion of
the Demised Premises shall not be substantially complete (or deemed
substantially completed) unless
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Landlord has given Tenant a notice (a "WW/LRW COMPLETION NOTICE") that the
Window Work or Lavatory Renovation Work in question has been or will be
substantially completed (or, pursuant to subsection 4.02(g) above, is deemed
substantially completed). Each WW/LRW Completion Notice shall be deemed
conclusive and binding upon Tenant unless, by giving Landlord notice (the
"DISPUTE NOTICE") within five (5) business days after Landlord gives the WW/LRW
Completion Notice to Tenant (TIME BEING OF THE ESSENCE IN ALL CASES), Tenant
disputes the substantial completion (or deemed substantial completion) of the
Window Work or Lavatory Renovation Work in question. Pending the resolution of
such dispute, Tenant's obligation to pay fixed rent and additional rent shall
commence or be reinstated, as the case may be, as if the WW/LRW Completion
Notice was correct. If Landlord and Tenant cannot resolve such dispute within
fifteen (15) days after Landlord receives the Dispute Notice from Tenant, such
dispute shall be resolved by arbitration pursuant to Article 34 below. If the
dispute (whether by agreement or arbitration) is resolved in Tenant's favor,
then the commencement or reinstatement, as the case may be, of Tenant's
obligation to pay fixed rent and additional rent shall be adjusted accordingly
and any overpayments of fixed rent or additional rent shall be applied against
the next installment(s) of fixed rent and additional rent due under this lease.
(k) For the purposes of clarification for subsection 4.02(i) above
and for all other provisions of this lease which use or refer to the term "ready
for occupancy," Tenant hereby acknowledges and agrees that as more particularly
provided in Subsection 4.02(g) above, but subject to Tenant's rights under
Subsection 4.02(h) above, the various portions of the Demised Premises can be
"ready for occupancy," thereby (with the giving of the various Completion
Notices) triggering the Commencement Date, the 19th Floor Effective Date, the
Vacant Phase II Effective Date, the Phase II Effective Date, the Vacant Phase
III Effective Date, the Phase III Effective Date and the Phase IV Effective
Date, as the case may be , prior to the Landlord's Work in the applicable
portion of the Demised Premises having actually been substantially completed, if
such actual substantial completion is delayed due to a Tenant Delay, but such
occurrence shall not relieve Landlord from its obligation to thereafter complete
the Landlord's Work.
(l) (i) Notwithstanding anything contained in this lease to the
contrary, if prior to the substantial completion (or deemed substantial
completion) of Landlord's Work in the entire 19th Floor, Landlord has
substantially completed Landlord's Work in one (1) or more portions of the 19th
Floor (such portion(s) being collectively referred to herein as the
"SUBSTANTIALLY COMPLETED 19TH FLOOR PORTIONS"), Landlord shall give notice to
Tenant thereof (such notice being hereinafter referred to as the "PARTIAL
SUBSTANTIAL COMPLETION NOTICE"). After receiving the Partial Substantial
Completion Notice, Tenant shall have the right to accept possession of the
Substantially Completed 19th Floor Portions. To exercise such right, Tenant
shall give notice (the "PARTIAL 19TH FLOOR Notice") to Landlord of Tenant's
desire to exercise such right within fifteen (15) days after Tenant receives the
Partial Substantial Completion Notice, in which event, effective on the date
(the "PARTIAL 19TH FLOOR EFFECTIVE DATE") which is the business day immediately
succeeding the date on which Tenant gives the Partial 19th Floor Notice to
Landlord, the Substantially Completed 19th Floor Portions shall be added to, and
constitute, a part of the Demised Premises. The Partial Substantial Completion
Notice shall set forth the rentable area of the portions of the 19th Floor in
question (as reasonably determined by
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Landlord in a manner consistent with the determination of the rentable square
foot area of the entire 19th Floor) and shall have attached to it a floor plan
of the portions of the 19th Floor in question. Unless Landlord and Tenant
otherwise expressly agree in writing, the giving of the Partial 19th Floor
Notice shall conclusively be deemed Tenant's acknowledgement and agreement that
all of the Landlord's Work in such portions of the 19th Floor has been
substantially completed in accordance with the applicable provisions of this
lease and that the rentable area of such portions of the 19th Floor is as set
forth in the Partial Substantial Completion Notice. If Tenant gives the Partial
19th Floor Notice, then at any time after the Partial 19th Floor Effective Date
Tenant shall have the right to perform Tenant's Work and to conduct business in
the Substantially Completed 19th Floor Portions, all in accordance with, and
subject to, the applicable provisions of this lease, including, without
limitation, the provisions of subsection 4.02(g) above.
(ii) If there is a Partial 19th Floor Effective Date, then
for all purposes of this lease (except as otherwise expressly provided in
subsection 4.02(i)(G) above), including subsections 4.02(i)(F)(i) and (iii)
above, the Substantially Completed 19th Floor Portion and the balance of the
19th Floor shall be treated as separate and distinct premises, with prorated
allocations and apportionments, on a per rentable square foot basis, of the
fixed rent, Tenant's Proportionate Share (as hereinafter defined), and 19th
Floor Rent Abatement Period between the two (2) portions of the 19th Floor, with
the 19th Floor Effective Date for the Substantially Completed 19th Floor Portion
being the Partial 19th Floor Effective Date.
4.03 (a) Landlord agrees to pay to Tenant, in accordance with, and
subject to, the provisions of this Section 4.03, an amount not to exceed the
lesser of (i) the cost for Tenant to perform all items of Tenant's Work in the
Phase I Portion, other than the cost of items which constitute Tenant's Property
(as hereinafter defined) and any other item which constitutes personal property
and which is removable from the Phase I Portion on the expiration or sooner
termination of the term of this lease, and (ii) $2,789,640.00 (such lesser
amount being hereinafter referred to as the "CONSTRUCTION PAYMENT"), provided
that at the time Landlord is otherwise obligated to make such payment of the
Construction Payment or any portion thereof, Tenant is not in breach or default
of its obligation to pay any fixed rent or additional rent (and Tenant has been
given notice of such default) and no Event of Default (as hereinafter defined)
then exists. Notwithstanding the foregoing, if at the time Landlord would
otherwise be obligated to pay the Construction Payment, the Phase II
Contribution Payment, the Phase III Contribution Payment or the Phase IV
Contribution Payment (as such terms are hereinafter defined), or any portions
thereof, but for the fact that at such time Tenant is in breach or default of
any of the terms, covenants and conditions of this lease on Tenant's part to
observe, perform or comply with, Landlord shall become obligated to pay the
Construction Payment, the Phase II Contribution Payment, the Phase III
Contribution Payment or the Phase IV Contribution Payment, as the case may be
(or the portion in question) when such breach or default is cured, provided that
this lease is then in full force and effect and the other conditions to
Landlord's obligation to pay same remain satisfied. Notwithstanding anything
contained in this lease to the contrary, no more than ten (10%) percent of the
Construction Payment may be used for architectural, engineering, space planning,
expediter and inspection fees, fees for all municipal and other permits,
licenses and approvals and other so-called "soft costs" (all of the foregoing
being herein referred to as the "SOFT COSTS"), and then only to the extent that
same are directly related to the Tenant's Work (as
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opposed to being related to furniture, furnishings or other non-"HARD COST"
items, none of which shall be paid for, or reimbursed by Landlord).
(b) Subject to the provisions of this Section, Landlord hereby
agrees to make periodic payments of portions of the Construction Payment to
Tenant as Tenant's Work progresses, in accordance with the terms and conditions
hereinafter set forth (the "CONSTRUCTION PAYMENT CONDITIONS"):
(i) Tenant shall submit to Landlord from time to time, but
not more often than once per month, requisitions (each such requisition being
herein referred to as a "TENANT'S Request") for such periodic payment with
respect to the portion(s) of Tenant's Work performed subsequent to the
immediately preceding Tenant's Request, the form of which Tenant's Request shall
be designated by Landlord (and reasonably satisfactory to Tenant's architect),
together with the following:
(w) a certificate from Tenant's architect, general
contractor or construction manager setting forth (1) such person's good faith
estimate of the then total cost of Tenant's Work (including, without limitation,
the Soft Costs) (hereinafter referred to as the "TOTAL COST") which Total Cost
shall be subject to Landlord's verification and which Total Cost shall be
adjusted from time to time as such Total Cost changes, (2) the amount of the
Total Cost (as same may have been so adjusted) that has been paid (either
directly by Tenant or from the Construction Payment), (3) the amount incurred or
paid by or on behalf of Tenant on account of Tenant's Work for the period
through the date of Tenant's Request, indicating the portion thereof for which
Tenant has not received a Percentage Payment (plus any retainage amount
permitted and not paid), and (4) copies of all construction contracts, change
orders and other agreements relating to the Tenant's Work, to the extent same
have not been theretofore submitted to Landlord (except for contracts, change
orders and other agreements in respect of portions of the Tenant's Work the
aggregate cost of which is less than $50,000.00, unless specifically requested
by Landlord);
(x) copies of invoices from the contractors and
subcontractors who performed the portions of Tenant's Work referred to in such
Tenant's Request, and from the materialmen and suppliers who supplied the
materials and supplies referred to in such Tenant's Request, and copies of all
invoices previously submitted to Landlord in connection with previous Tenant's
Requests, with an indication on such previously submitted invoices or other
evidence reasonably satisfactory to Landlord, that such previously submitted
invoices have been paid in full, less any retainage;
(y) a certificate from Tenant's architect and general
contractor or construction manager that (1) such portion of the Tenant's Work
has been substantially completed in accordance with all material aspects of the
Tenant's Plans (as such term is defined in Section 13.05 below) and revisions
thereto theretofore approved by Landlord; and (2) there are no violations or
liens against Landlord, the Demised Premises, the Land or the Building (or
against the holders of any interests in any of the foregoing) pending as a
result of such portion of the Tenant's Work; and
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(z) lien waivers not previously delivered to Landlord
from each contractor, subcontractor, materialman and supplier for all Tenant's
Work theretofore performed (less any permitted retainage amounts) other than the
Tenant's Work for which the then Tenant's Request is being submitted;
(ii) The contract with Tenant's general contractor or
construction manager shall provide for a reasonable retainage amount, but in no
event less than five (5%) percent; and
(iii) Such portion of the Tenant's Work has been performed in
material compliance with the applicable provisions of this lease.
(c) Landlord shall have the right, to be reasonably exercised,
from time to time to enter the Phase I Portion for the purpose of verifying that
such portion of Tenant's Work covered by Tenant's Request has been performed in
accordance with the Tenant's Plans and revisions thereto theretofore approved by
Landlord or otherwise to inspect any or all aspects of Tenant's Work, either by
Landlord's architect or by an independent architect retained by Landlord at its
sole cost and expense. If Landlord exercises such right and said architect shall
provide such verification (or if Landlord does not exercise such right), then,
provided the Construction Payment Conditions have been, and remain, satisfied,
within thirty (30) days after Landlord's receipt of Tenant's Request together
with the accompanying documentation, Landlord shall pay to Tenant the
"PERCENTAGE PAYMENT" (as such term is hereinafter defined) with respect to the
amounts shown on such Tenant's Request as being incurred or paid for the
portions of Tenant's Work reflected thereon (together with the amount of any
retainage to be released). For purposes hereof, the "PERCENTAGE PAYMENT" shall
mean fifty (50%) percent of the amounts shown on such Tenant's Request as being
incurred or paid, for portions of Tenant's Work reflected thereon. The balance
of the Construction Payment, if any, after the substantial completion of
Tenant's Work, shall be paid to Tenant in accordance with the terms and
conditions set forth in subsection (d) below.
(d) Subject to the provisions of this Section, Landlord hereby
agrees to pay the unfunded portion of the Construction Payment, if any, in
accordance with the terms and conditions hereinafter set forth (the "FINAL
CONSTRUCTION PAYMENT CONDITIONS"):
(i) After the substantial completion of the Tenant's Work,
Tenant shall submit to Landlord a requisition (herein referred to as the "FINAL
REQUEST") for such unfunded portion of the Construction Payment, the form of
which Final Request shall be designated by Landlord (and reasonably satisfactory
to Tenant's architect), together with the following:
(w) copies of invoices from the contractors and
subcontractors who performed the Tenant's Work, and from the materialmen and
suppliers who supplied the materials and supplies referred to in the Final
Request, and copies of all invoices previously submitted to Landlord in
connection with previous Tenant's Requests, with an indication on such
previously submitted invoices or other evidence reasonably satisfactory to
Landlord, that such previously submitted invoices have been paid in full, less
any retainage (other than those paid receipted invoices previously submitted to
Landlord pursuant to subsection (b) above);
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(x) a certificate from Tenant's architect and general
contractor or construction manager that (1) all Tenant's Work has been completed
in accordance with the Tenant's Plans and revisions thereto theretofore approved
by Landlord; (2) there are no violations or liens against Landlord, the Demised
Premises, the Building or the Land (or against the holders of any interests in
any of the foregoing) pending as a result of any of the Tenant's Work;
(y) lien waivers from each contractor, subcontractor,
materialman and supplier who have performed any Tenant's Work (other than those
invoices previously submitted to Landlord pursuant to subsection (b) above); and
(z) in respect of all Tenant's Work, as-built
drawings, and, to the extent specifically requested by Landlord, copies of
balancing reports, operating manuals, maintenance logs, warranties and
guaranties, sign-offs and inspection reports; and
(ii) All Tenant's Work has been performed in material
compliance with the applicable provisions of this lease.
(e) Promptly following the Final Request together with the aforesaid
accompanying documentation, Landlord shall have the right to enter the Phase I
Portion for the purpose of verifying that all of the Tenant's Work has been
completed and performed in accordance with all material aspects of the Tenant's
Plans and revisions thereto theretofore approved by Landlord, either by
Landlord's architect or by an independent architect retained by Landlord at its
sole cost and expense. If Landlord exercises such right and said architect shall
provide such verification (or if Landlord's does not exercise such right), then,
provided the Final Construction Payment Conditions have been, and remain,
satisfied, within thirty (30) days after Landlord's receipt of the Final Request
together with the accompanying documentation, Landlord shall pay to Tenant the
unfunded portion of the Construction Payment (such unfunded portion being
hereinafter referred to as the "FINAL PAYMENT").
(f) In no event shall the sum of the Percentage Payments and the
Final Payment with respect to the Phase I Portion exceed the lesser of (i)
$2,789,640.00 and (ii) the cost for Tenant to perform all items of Tenant's Work
in the Phase I Portion.
(g) If Tenant does not submit a final request then, within fifteen
(15) days after Landlord's request therefor, Tenant shall deliver to Landlord
all of the items listed in subsection 4.03(d)(i) above with respect to the
Tenant's Work performed in the Phase I Portion, the Phase II Portion, the Phase
III Portion and the Phase IV Portion.
4.04 Provided that the Vacant Phase II Effective Date or the Phase II
Effective Date shall have occurred, Landlord agrees to pay to Tenant, in
accordance with and subject to the provisions of Section 4.03, an amount not to
exceed the lesser of (i) the cost for Tenant to perform all items of Tenant's
Work in the Phase II Portion, other than the cost of items which constitute
Tenant's Property and any other item which constitutes personal property and
which is removable from the Phase II Portion on the expiration or sooner
termination of the term of this lease, and (ii) the "PHASE II CONTRIBUTION
AMOUNT" (as hereinafter defined; such lesser amount being hereinafter referred
to as the "PHASE II CONTRIBUTION PAYMENT"), provided that at the
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time Landlord is otherwise obligated to make such payment of the Phase II
Contribution Payment or any portion thereof, Tenant is not in breach or default
of its obligation to pay any fixed rent or additional rent and no Event of
Default then exists. The Phase II Contribution Payment shall be made subject to
and in accordance with all of the provisions of Section 4.03 above, except that
any reference to (i) Phase I Portion shall be deemed to refer to the Phase II
Portion, (ii) the dollar amount $2,789,640.00 shall be deemed to refer to the
Phase II Contribution Amount and (iii) Construction Payment shall be deemed to
refer to the Phase II Contribution Payment. For purposes of this Section 4.04,
the term "PHASE II CONTRIBUTION AMOUNT" shall mean the product of (x)
$1,051,820.00, multiplied by (y) a fraction (the "PHASE II TERM FRACTION"), the
numerator of which is the number of full calendar months during the period
commencing on the earlier of (A) the Phase II Effective Date, and (B) June 1,
2001 and ending on the Expiration Date, and the denominator of which is the
number of full calendar months during the Term.
4.05 Provided that the Vacant Phase III Effective Date or the Phase III
Effective Date shall have occurred, Landlord agrees to pay to Tenant, in
accordance with and subject to the provisions of Section 4.03, an amount not to
exceed the lesser of (i) the cost for Tenant to perform all items of Tenant's
Work in the entire Phase III Portion, other than the cost of items which
constitute Tenant's Property and any other item which constitutes personal
property and which is removable from the Phase III Portion on the expiration or
sooner termination of the term of this lease, and (ii) the "PHASE III
CONTRIBUTION AMOUNT" (as hereinafter defined; such lesser amount being
hereinafter referred to as the "PHASE III CONTRIBUTION PAYMENT"), provided that
at the time Landlord is otherwise obligated to make such payment of the Phase
III Contribution Payment or any portion thereof, Tenant is not in breach or
default of its obligation to pay any fixed rent or additional rent and no Event
of Default then exists. The Phase III Contribution Payment shall be made subject
to and in accordance with all of the provisions of Section 4.03 above, except
that any reference to (i) Phase I Portion shall be deemed to refer to the Phase
III Portion, (ii) the dollar amount $2,789,640.00 shall be deemed to refer to
the Phase III Contribution Amount and (iii) Construction Payment shall be deemed
to refer to the Phase III Contribution Payment. For purposes of this Section
4.05, the term "PHASE III CONTRIBUTION AMOUNT" shall mean the product of (x)
$809,760.00, multiplied by (y) a fraction (the "PHASE III TERM FRACTION"), the
numerator of which is the number of full calendar months during the period
commencing on the earlier of (A) the Phase III Effective Date, and (B) December
1, 2002 and ending on the Expiration Date, and the denominator of which is the
number of full calendar months during the Term.
4.06 Provided that the Phase IV Effective Date shall have occurred,
Landlord agrees to pay to Tenant, in accordance with and subject to the
provisions of Section 4.03, an amount not to exceed the lesser of (i) the cost
for Tenant to perform all items of Tenant's Work in the Phase IV Portion, other
than the cost of items which constitute Tenant's Property and any other item
which constitutes personal property and which is removable from the Phase IV
Portion on the expiration or sooner termination of the term of this lease, and
(ii) the "PHASE IV CONTRIBUTION AMOUNT" (as hereinafter defined); such lesser
amount being hereinafter referred to as the "PHASE IV CONTRIBUTION PAYMENT",
provided that at the time Landlord is otherwise obligated to make such payment
of the Phase IV Contribution Payment or any portion thereof, Tenant is not in
breach or default of its obligation to pay any fixed rent or additional rent and
no Event of
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Default then exists. The Phase IV Contribution Payment shall be made subject to
and in accordance with all of the provisions of Section 4.03 above, except that
any reference to (i) Phase I Portion shall be deemed to refer to the Phase IV
Portion, (ii) the dollar amount $2,789,640.00 shall be deemed to refer to the
Phase IV Contribution Amount and (iii) Construction Payment shall be deemed to
refer to the Phase IV Contribution Payment. For purposes of this Section 4.06,
the term "PHASE IV CONTRIBUTION AMOUNT" shall mean the product of (x)
$1,262,345.00, multiplied by (y) a fraction (the "PHASE IV TERM FRACTION"), the
numerator of which is the number of full calendar months during the period
commencing on the earlier of (A) the Phase IV Effective Date, and (B) December
1, 2003 and ending on the Expiration Date, and the denominator of which is the
number of full calendar months during the Term.
4.07 If Landlord does not pay any installment of the Construction
Payment, the Phase II Contribution Payment, the Phase III Contribution Payment
or the Phase IV Contribution Payment, as the case may be, when properly due
Tenant in accordance with, and subject to, the terms and conditions of this
lease and such failure continues for more than three (3) business days after
notice from Tenant that same is overdue, then provided Landlord did not or does
not notify Tenant prior to the expiration of said three (3) business day period
that it disputes that such payment is due Tenant in accordance with, and subject
to, the provisions of this lease, the amount of the Construction Payment, the
Phase II Contribution Payment, the Phase III Contribution Payment or the Phase
IV Contribution Payment, as the case may be, that is so properly due but not
paid, plus interest on the balance of such amount from time to time outstanding,
from the date such amount was due through the date next preceding the date of
which such amount is fully deducted (as hereinafter provided), at an annual
interest rate equal to the rate described in subsection 30.01(b) below, shall be
deducted from the next installment(s) of fixed rent and additional rent payable
hereunder.
4.08 (a) As soon as is practicable after the Commencement Date, the
Phase II Effective Date, the Phase III Effective Date and the Phase IV Effective
Date, as the case may be, Landlord shall perform the Post-Commencement
Landlord's Work in the corresponding portion of the Demised Premises (i.e., the
Phase I Portion, the Phase II Portion, the Phase III Portion and the Phase IV
Portion, respectively), and in doing so shall use all commercially reasonable
efforts to minimize interference with the performance of Tenant's Work in such
portions of the Demised Premises and with Tenant's use of such portions for the
purposes expressly permitted under this lease.
(b) If the Commencement Date and the 19th Floor Effective Date
have occurred, but the Post-Commencement Landlord's Work described in Paragraphs
3 and/or 5 of Part II of Exhibit G is not substantially completed (or deemed
substantially completed) by the Post-Completion Landlord's Work Outside Date (as
hereinafter defined), then, as Tenant's sole and exclusive right and remedy,
during the period commencing on the date next succeeding the Post-Completion
Landlord's Work Outside Date through the date next preceding the date on which
all such Post-Commencement Landlord's Work is substantially completed, the
annual fixed rent payable under this lease shall be reduced by $500.00 per day.
For the purposes of this subsection, "POST-COMPLETION LANDLORD'S WORK OUTSIDE
DATE" shall mean, with respect to the 18th and 20th floors of the Phase I
Portion, the date which is five (5) months after the Landlord's Work in respect
of such floors is actually substantially completed (as opposed to deemed
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substantially completed), with respect to each of the other floors of the
Demised Premises, the date which is five (5) months after the Landlord's Work in
respect of such floor is actually substantially completed (as opposed to deemed
substantially completed).
4.09 (a) In addition to Landlord's Work to be performed pursuant to this
Article, Landlord intends to perform substantially the work described in Exhibit
H hereto (such work being herein referred to as the "BASE BUILDING WORK") by the
time periods set forth in said Exhibit. Landlord shall have no obligation to
advise Tenant of any modifications to the Base Building Work.
(b) If any portion of the Base Building Work is not substantially
completed (or deemed substantially completed) by the corresponding date set
forth in said Exhibit H as the "Outside Completion Date" for such portion of the
Base Building Work, then, as Tenant's sole and exclusive right and remedy,
during the period commencing on the corresponding "Outside Completion Date"
through the date next preceding the date on which the portion of the Base
Building Work in question is substantially completed, the annual fixed rent
payable under this lease (prorated on a PER DIEM basis) shall be reduced by an
amount equal to the "Multiplier" for the corresponding portion of the Base
Building Work, multiplied by the rentable area of the Demised Premises during
such period.
ARTICLE 5 5
ADJUSTMENTS OF RENT
5.01 TAX ESCALATION. For the purpose of this lease:
(a) "TAXES" shall mean the real estate taxes and assessments and
special assessments imposed upon the Building and the Land including, without
limitation, any assessments for public improvement or benefit to the Building or
Land, or the locality in which the Land is situated, such as Business
Improvement District taxes and assessments. 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 in lieu of or as an addition to or as a
substitute for the whole or any part of the taxes, assessments, levies,
impositions or 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, or (ii) a tax, assessment, levy,
imposition or charge measured by or based in whole or in part upon the Demised
Premises and imposed upon Landlord, or (iii) a license fee measured by the rents
payable by Tenant to Landlord, then all such taxes, assessments, levies,
impositions or charges, or the part thereof so measured or based, shall be
deemed to be included within the term "Taxes" for the purposes hereof. The term
"TAXES" shall not include any income, franchise, transfer, inheritance, capital
stock or other similar tax imposed on Landlord unless, due to a future change in
the method of taxation, an income, franchise, transfer, inheritance, capital
stock or other tax shall be levied against Landlord in substitution for any tax
or increase therein which would otherwise constitute "Taxes", as defined in the
first sentence of this subsection (a), in which event such income, franchise,
transfer, inheritance, capital stock or other tax shall be deemed to be included
in the term "Taxes" but any such income or similar tax shall be computed as if
the Building and the Land were the only property of
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Landlord. If any assessment is paid by Landlord in installments, then only the
installments paid by Landlord in a given Tax Year shall be included in "Taxes"
for such Tax Year. If, by law, any assessment may be paid in installments but
Landlord chooses not to pay same in installments, then, for the purposes of
determining the Taxes for a given Tax Year: (i) such assessment shall be deemed
to have been payable in the maximum number of installments permitted by law, and
(ii) there shall be included in Taxes for each Tax Year the installments of such
assessment that would have been payable during such Tax Year had Landlord
elected to pay such assessment in the maximum number of installments, together
with any interest thereon that would payable during such Tax Year. "Taxes" shall
also include penalties and interest to the extent attributable to Tenant's
failure to timely and properly pay the Tax Payment (as hereinafter defined) as
required under this lease; but not penalties and interest attributable to any
other tenant's or Landlord's failure to timely and properly pay Taxes.
(b) "BASE TAX YEAR" shall mean the 2000/2001 Tax Year;
(c) "BASE TAX RATE" shall mean the Taxes for the Base Tax Year as
initially assessed, without giving effect to any subsequent reduction (other
than a reduction that corrects an error made by the taxing authority);
(d) "TAX YEAR" shall mean the fiscal year for which Taxes are
levied by the governmental authority;
(e) "TENANT'S PROPORTIONATE SHARE" shall mean 6.884%, which has
been computed on the basis of a fraction, the numerator of which is the agreed
rentable square foot area of the 18th and 20th floors of the Phase I Portion as
set forth below, and the denominator of which is the agreed rentable square foot
area of the Building as set forth below. Effective on the 19th Floor Effective
Date (or on the Commencement Date, if the 19th Floor Effective Date occurs on
the Commencement Date), Tenant's Proportionate Share shall be increased by
3.467%. Effective on the Phase II Effective Date, Tenant's Proportionate Share
shall be increased by 3.903%; effective on the Phase III Effective Date,
Tenant's Proportionate Share shall be increased by 3.005%; and effective on the
Phase IV Effective Date, Tenant's Proportionate Share shall be increased by
4.684%. The parties agree that the rentable square foot area of the Phase I
Portion shall be deemed to be 79,704 square feet (29,872 square feet of which is
attributable to the 18th floor, 26,696 square feet of which is attributable to
the 19th Floor, and 23,136 square feet of which is attributable to the 20th
floor), the rentable square foot area of the Phase II Portion shall be deemed to
be 30,052 square feet, the rentable square foot area of the Phase III Portion
shall be deemed to be 23,136 square feet, and the rentable square foot area of
the Phase IV Portion shall be deemed to be 36,067 square feet and that the
agreed rentable square foot area of the Building shall be deemed to be 770,000
square feet (hereinafter referred to as the "BUILDING AREA"). If the Partial
19th Floor Effective Date occurs before the 19th Floor Effective Date, or if the
Vacant Phase II Effective Date occurs before the Phase II Effective Date, or if
the Vacant Phase III Effective Date occurs before the Phase III Effective Date,
then on the Partial 19th Floor Effective Date, the Vacant Phase II Effective
Date and on the Vacant Phase III Effective Date, the Tenant's Proportionate
Share shall be increased based on the rentable area of the applicable Portion of
the 19th Floor, the Vacant Phase II Portion and Vacant Phase III Portion,
respectively, that is added to the Demised Premises, and the increases in
Tenant's Proportionate Share provided for above
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on the 19th Floor Effective Date, the Phase II Effective Date and/or the Phase
III Effective Date, as the case may be, shall be reduced by percentages by which
Tenant's Proportionate Share is increased on the Partial 19th Floor Effective
Date, the Vacant Phase II Effective Date and on the Vacant Phase III Effective
Date, respectively.
5.02 If the Taxes for any Tax Year shall be more than the Base Tax Rate,
Tenant shall pay, as additional rent for such Tax Year, an amount (the "TAX
PAYMENT") equal to Tenant's Proportionate Share of the amount by which the Taxes
for such Tax Year are greater than the Base Tax Rate. The Tax Payment and the
Base Tax Rate shall be appropriately prorated, if necessary, to correspond with
that portion of a Tax Year occurring within the Term of this lease that is
applicable to the various portions of the Demised Premises. The Tax Payment
shall be payable by Tenant within fifteen (15) days after receipt of a demand
from Landlord therefor (such demand being hereinafter referred to as a "TAX
STATEMENT"), which demand shall be accompanied by a copy of the tax bill or
notice of assessment for the Tax Year in respect of which a Tax Payment is being
demanded, together with Landlord's computation of the Tax Payment, but in no
event shall Tenant be obligated to make the Tax Payment more than forty-five
(45) days prior to the date on which the corresponding Taxes are due to the
taxing authority.
5.03 Notwithstanding the fact that the Tax Payment is measured by an
increase in Taxes, such increase is additional rent and shall be paid by Tenant
as provided herein regardless of the fact that Tenant may be exempt, in whole or
in part, from the payment of any taxes by reason of Tenant's diplomatic or other
tax exempt status or for any other reason whatsoever.
5.04 Only Landlord shall be eligible to contest the Taxes or the
assessed valuation of the Building or the Land, or to institute tax reduction or
other proceedings to reduce the Taxes or such assessed valuations, or to
negotiate for a reduction in the such assessed valuations prior to the issuance
of a notice of assessment or tax bill (all of the foregoing being collectively
referred to as the "TAX REDUCTION ACTIONS"). Landlord agrees to review the Taxes
for each Tax Year occurring within the term of this lease and make a good faith
determination as to whether or not Landlord shall formally or informally take
any Tax Reduction Action. If Landlord takes any Tax Reduction Action, then
Tenant shall pay to Landlord, within fifteen (15) days after Landlord's demand
therefor, Tenant's Proportionate Share (taking into account the adjustments
provided for in subsection 5.01(e) above) of the actual and out-of-pocket costs
and expenses (including attorneys' fees and disbursements) incurred or paid by
Landlord in taking the Tax Reduction Action (such costs and expenses being
herein referred to as the "TAX REDUCTION EXPENSES"). If Landlord receives a
refund of Taxes for any Tax Year in respect of which Tenant has made a Tax
Payment, Landlord shall return to Tenant Tenant's Proportionate Share of such
refund, less Tenant's Proportionate Share (taking into account the adjustments
provided for in subsection 5.01(e) above) of the Tax Reduction Expenses
attributable to such refund, except to the extent Tenant has already paid to
Landlord Tenant's Proportionate Share (taking into account the adjustments
provided for in subsection 5.01(e) above) of the Tax Reduction Expenses
attributable to such refund.
5.05 Intentionally omitted.
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5.06 (a) Anything in this Article 5 to the contrary notwithstanding,
in the event that the holder of any superior mortgage or the lessor of any
superior lease (as such terms are defined in Section 7.01 hereof) shall require
advance payments from Landlord on account of Taxes, then Tenant will pay
Tenant's Proportionate Share (taking into account the adjustments provided for
in subsection 5.01(e) above) of any amounts on account of Taxes required to be
paid or deposited in advance by Landlord to or with the holder of the superior
mortgage or the lessor of the superior lease to the extent that such payments
made by Landlord exceed the Base Tax Rate. Any payments to be made by Tenant
under this Section 5.06(a) shall be made ten (10) days prior to the date
Landlord is required to make such payments to the holder of the superior
mortgage or the lessor of the superior lease, provided Landlord has given Tenant
at least fifteen (15) days prior notice of such requirement;
(b) Anything in Sections 5.01 through 5.06 to the contrary
notwithstanding, in no event whatsoever shall the fixed rent be reduced below
the fixed rent initially set forth in Section 1.04(a) hereof as same may be
increased by provisions of this lease other than Sections 5.01 through 5.06.
5.07 EXPENSE ESCALATION. For purposes of this lease:
(a) "OPERATING EXPENSES" shall mean any or all expenses incurred
by Landlord in connection with the operation, maintenance and repair of the
Building, including all expenses incurred as a result of Landlord's compliance
with any of its obligations hereunder and such expenses shall include: (i)
salaries, wages, medical, surgical and general welfare benefits (including group
life insurance), pension payments and other fringe benefits of employees of
Landlord engaged in the operation and maintenance of the Building (the salaries
and other benefits aforesaid of such employees servicing the Building shall be
comparable to those of employees servicing buildings similar to the Building,
located in the Borough of Manhattan); (ii) payroll taxes, worker's compensation,
uniforms and dry cleaning for the employees referred to in subdivision (i);
(iii) the cost of all charges for steam, heat, ventilation, air conditioning and
water (including sewer rental) furnished to the public portions of the Building
and/or used in the operation of all of the service facilities of the Building
and the cost of all charges for electricity furnished to the public and service
areas of the Building and/or used in the operation of all of the service
facilities of the Building including any taxes on any of such utilities; (iv)
the cost of all charges for rent, casualty, war risk insurance (if obtainable
from the United States government) and of liability insurance for the Building
to the extent that such insurance is required to be carried by Landlord under
any superior lease or superior mortgage or if not required under any superior
lease or superior mortgage then to the extent such insurance is carried by
owners of buildings comparable to the Building; (v) the cost of all building and
cleaning supplies for the common areas of the Building and charges for telephone
for the Building; (vi) the cost of all charges for management, security,
cleaning and service contracts for the Building (if no managing agent is
employed by Landlord, there shall be included in Operating Expenses a sum equal
to 2.5% of all rents and other charges collected from tenants or other permitted
occupants of the Building); (vii) the cost of rentals of capital equipment
designed to result in savings or reductions in Operating Expenses which costs
shall not exceed the savings realized; (viii) the cost incurred , which are
non-capital expenditures, in connection with the maintenance and repair of the
Building; and (ix) expenditures for capital improvements (l) which under
generally
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accepted accounting principles as applied to real estate practice are expensed
or regarded as deferred expenses, or (2) which are required by any law enacted
after the date of this lease or any amendment enacted after the date of this
lease of any existing law, or (3) which are designed to result in a saving in
the amount of Operating Expenses, in any of such cases the cost thereof shall be
included in Operating Expenses for the Operational Year in which the costs are
incurred and subsequent Operational Years, amortized on a straight line basis,
over the useful life thereof as determined in accordance with generally accepted
accounting principles consistently applied (except that, with respect to a
capital improvement which is of the type specified in clause (3), such cost
shall be amortized over such period of time as Landlord reasonably estimates
such savings in Operating Expenses will equal Landlord's cost for such capital
improvement but in no event in excess of the amount of savings actually realized
in any Operational Year), with an interest factor in any of such cases equal to
two (2%) percent above the Prime Rate (as hereinafter defined) at the time of
Landlord's having incurred said expenditure. Landlord may use related or
affiliated entities to provide services (including management services) or
furnish materials for the Building provided that the rates or fees charged by
such entities are competitive with those charged by unrelated or unaffiliated
entities in the same area in the Borough of Manhattan as the Building, for the
same services or materials. Provision in this lease for an expense to be
Landlord's cost or expense (or sole cost or expense), or at Landlord's cost or
expense (or sole cost or expense) shall not affect the inclusion thereof, to the
extent provided above, in Operating Expenses. Operating Expenses shall exclude
or have deducted from them, as the case may be, and as shall be appropriate:
1. leasing and brokerage commissions in connection with
leases of space in the Building;
2. salaries, fringe benefits and other compensation of
personnel above the grade of building manager;
3. the cost of any electricity furnished to the Demised
Premises or any other space leased in the Building;
4. except as otherwise hereinabove provided, the cost of
any repair or replacement, alteration, addition or change which is a capital
expenditure under generally accepted accounting principles consistently applied;
5. the cost of services provided to Tenant or any of the
other tenants of the Building, including overtime HVAC, for which Landlord is
directly compensated, or has the right to be directly compensated, by Tenant or
any other tenant of the Building (except pursuant to provisions similar in
intent to Sections 5.07 through 5.11 hereof for the payment of a share of the
costs of operating the Building), which are not included in fixed rent;
6. the cost of repairs or replacements incurred by reason
of fire or other casualty, or condemnation;
7. advertising and promotional expenditures and any other
expense incurred in connection with the renting of space;
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8. legal and other professional or consulting fees
incurred in disputes with tenants, and legal, arbitration and auditing fees
other than legal, arbitration and auditing fees reasonably incurred (a) in
connection with the maintenance and operation of the Building or (b) in
connection with the preparation of statements required pursuant to rental
escalation provisions;
9. depreciation of the Building, equipment or other
improvements;
10. mortgage or other interest and/or debt service and/or
financing and refinancing costs in connection with any loan, secured or
unsecured; ground rents or any other payments under any superior leases;
11. any initial construction work performed by, or at the
expense of, Landlord for tenants, and tenant alteration work or change work,
including any utilities, fees or services incurred in connection with the
performance of such work;
12. painting and decorating of areas to be occupied by
tenants or licensees; special services (i.e., beyond the normal repair,
maintenance and operating of the Building) provided without extra charge, beyond
fixed rent, to some but not all tenants in the Building;
13. Taxes;
14. lease takeover costs and related expenses;
15. any wages, salaries, fringe benefits and other
compensation of Landlord's employees (except as set forth in Section 5.07(a)(i)
and (ii) above) or any general and administrative overhead of Landlord;
16. costs incurred with respect to a sale or purchase of all
or any portion of the Building or any interest therein or in connection with the
purchase or sale of any air or development rights;
17. any interest, fine, penalty or other late charges
payable by Landlord;
18. the cost of removing, encapsulating or otherwise abating
any asbestos or other hazardous materials in the Building except with respect to
any materials which are determined to be hazardous after the date of this lease;
19. franchise, income, transfer, gains, inheritance,
personal property or other tax imposed on Landlord;
20. the cost of the acquisition or installation of any
sculpture, paintings or other objects of art in excess of amounts typically
spent for such items in comparable buildings in the vicinity of the Building;
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21. the cost of performing work or furnishing services to or
for any tenant other than Tenant, at Landlord's expense, to the extent such work
or service is in excess of any work or service Landlord is obligated to provide
to Tenant or generally to other tenants in the Building at Landlord's expense;
22. amounts that would otherwise be included as an
"Operating Expense" which are reimbursed to Landlord from insurance proceeds,
provided, however, to the extent an amount that is so reimbursed from insurance
proceeds is not reimbursed in the Operational Year in which the amount in
question was included in "Operating Expenses," then at Landlord's option (1) the
Operating Expenses and the Operating Expense Payment for the Operational Year in
which the reimbursed amount in question was included in "Operating Expenses,"
shall be recalculated and the overpayment made by Tenant shall be credited
against rent, unless the term of this lease expires prior to a full crediting,
then same shall be refunded to Tenant, or (2) the reimbursed amount shall be
deducted from the then Operational Year's Operating Expenses; and
23. costs incurred to remedy violations of laws and/or
requirements of public authorities that exist on the date of this lease or which
arise by reason of the failure of Landlord (or Landlord's predecessor) to
construct, maintain or operate the Building or any part thereof in compliance
with such laws and/or requirements of public authorities (excluding the costs of
permits and approvals to comply with laws and/or requirements of public
authorities in the ordinary course of the operation of the Building).
If during all or part of the Base Operational Year (as hereinafter
defined) or any other Operational Year, Landlord shall not furnish any
particular item(s) of work or service (which would otherwise constitute an
Operating Expense hereunder) to office portions of the Building due to the fact
that (i) such portions are not occupied or leased, (ii) such item of work or
service is not required or desired by the tenant of such portion, or (iii) such
tenant is itself obtaining and providing such item of work or service, then, for
the purposes of computing Operating Expenses, the amount for such item and for
such period shall be deemed to be increased by an amount equal to the additional
costs and expenses which would reasonably have been incurred during such period
by Landlord if it had at its own expense furnished such item of work or services
to such portion of the Building or to such tenant.
(b) "OPERATIONAL YEAR" shall mean each calendar year during the
Term hereof.
(c) "BASE OPERATIONAL YEAR" shall be calendar year 2000;
(d) "OPERATING EXPENSE BASE" shall mean Operating Expenses for the
Base Operational Year;
(e) "TENANT'S PROJECTED SHARE OF OPERATING EXPENSES" shall mean
Tenant's Operating Expense Payment (as hereinafter defined), if any, for the
prior Operational Year divided by twelve (12) and payable monthly by Tenant to
Landlord as additional rent.
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5.08 After the expiration of the Base Operational Year, Landlord shall
furnish Tenant a statement setting forth the aggregate amount of the Operating
Expenses for the Base Operational Year. After the expiration of each Operational
Year after the Base Operational Year, Landlord shall furnish Tenant a statement
setting forth the aggregate amount of the Operating Expenses for such
Operational Year. The statement furnished under this Section 5.08 is hereinafter
referred to as an "OPERATING STATEMENT."
5.09 If the Operating Expenses for any Operational Year shall be more
than the Operating Expense Base, Tenant shall pay, as additional rent for such
Operational Year, an amount (the "OPERATING EXPENSE PAYMENT") equal to Tenant's
Proportionate Share (taking into account the adjustments provided for in
subsection 5.01(e) above) of the amount by which the Operating Expenses for such
Operational Year are greater than the Operating Expense Base. The Operating
Expense Payment shall be prorated, if necessary, to correspond with that portion
of an Operational Year occurring within the Term of this lease that is
applicable to the various portions of the Demised Premises. The Operating
Expense Payment shall be payable by Tenant within fifteen (15) days after
receipt of the Operating Statement.
5.10 Commencing with the first Operational Year after Landlord shall be
entitled to receive an Operating Expense Payment, Tenant shall pay to Landlord
as additional rent for the then Operational Year, Tenant's Projected Share of
Operating Expenses. If the Operating Statement furnished by Landlord to Tenant
at the end of then Operational Year shall indicate that Tenant's Projected Share
of Operating Expenses exceeded the Operating Expense Payment, Landlord shall
either (a) pay the amount of excess directly to Tenant concurrently with the
notice or (b) permit Tenant to credit the amount of such excess against the
subsequent payment of fixed rent or additional rent due hereunder; if such
Operating Statement furnished by Landlord to Tenant hereunder shall indicate
that the Operating Expense Payment exceeded Tenant's Projected Share of
Operating Expenses for the then Operational Year, Tenant shall pay the amount of
such excess to Landlord within fifteen (15) days after Landlord furnishes such
Operating Statement to Tenant.
5.11 Every Operating Statement given by Landlord pursuant to Section
5.08 shall be conclusive and binding upon Tenant unless (i) within 120 days
after the receipt of such Operating Statement Tenant shall notify Landlord that
it disputes the correctness of the Operating Statement, specifying in reasonable
detail either the particular respects in which, or the basis upon which, the
Operating Statement is claimed to be incorrect, and (ii) if such dispute shall
not have been settled by agreement, shall submit the dispute to arbitration
within 180 days after receipt of the Operating Statement. Landlord agrees, at no
cost expense to Landlord, to grant Tenant reasonable access to those books and
records of Landlord relevant to such dispute (other than privileged materials)
for the purpose of verifying Operating Expenses incurred by Landlord in the
Operational Year in question and to have and make copies of any and all bills
and vouchers relating to such dispute. Tenant agrees that Tenant will not
employ, in connection with any review or dispute under this lease, any person
who is to be compensated, in whole or in part, on a contingency fee basis. In
connection with any such review, audit or dispute, Tenant and its
representatives shall execute and deliver to Landlord a confidentiality
agreement, in form and substance reasonably satisfactory to Landlord and Tenant,
whereby such parties agree not to disclose to any third party any of the
information obtained in connection with such review or
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audit, or the substance of any admissions or stipulations by any party in
connection therewith, or of any resulting reconciliation, compromise or
settlement. Pending the determination of such dispute by agreement or
arbitration as aforesaid, Tenant shall within fifteen (15) days after receipt of
such Operating Statement, pay additional rent, if due, in accordance with the
Operating Statement and such payment shall be without prejudice to Tenant's
position. If the dispute shall be determined in Tenant's favor, Landlord shall,
within fifteen (15) days after Tenant's demand therefor, pay Tenant the amount
of Tenant's overpayment of the Operating Expense Payment, if any, resulting from
compliance with the Operating Statement, plus the reasonable out-of-pocket cost
actually paid by Tenant to the person who conducted the audit of Landlord's
books and records on Tenant's behalf in connection with verifying the Operating
Expenses for the Operational Year in question, but only if the actual
overpayment by Tenant of the actual Operating Expense Payment (as opposed to any
Tenant's Projected Share of Operating Expenses) is more than 108% of the
Operating Expense Payment so finally determined for the Operational Year in
question.
5.12 Landlord's failure during the lease term to prepare and deliver any
of the demands, tax bills, notices of assessment, statements, other notices or
other bills set forth in this Article 5, or Landlord's failure to make a demand,
shall not in any way cause Landlord to forfeit or surrender its rights to
collect any of the foregoing items of additional rent which may have become due
during the term of this lease. Notwithstanding the foregoing, and except in the
case where the term of this lease ends as a result of a default under any of the
terms, covenants or conditions in this lease on Tenant's part to observe,
perform or comply with, Landlord shall be deemed to have waived its right to
claim any Tax Payment for any Tax Year occurring (in whole or in part) during
the term of this lease if Landlord shall fail to render a Tax Statement with
respect to any such Tax Years within three (3) years after the last day of the
term of this lease, and Landlord shall be deemed to have waived its right to
claim any Operating Expense Payment for any Operational Year occurring (in whole
or in part) during the term of this lease if Landlord shall fail to render an
Operating Statement with respect to any such Operational Years within three (3)
years after the last day of the term of this lease.
ARTICLE 6 6
SECURITY DEPOSIT
6.01 Tenant has deposited with Landlord the sum of $4,000,000.00 by
Letter of Credit (as hereinafter defined) as security for the faithful
performance, observance and compliance with all of the terms, covenants and
conditions of this lease on Tenant's part to perform, observe or comply with. In
the event that Tenant defaults under any of the terms, covenants or conditions
in this lease on Tenant's part to observe, perform or comply with (including,
without limitation, the payment of any installment of fixed rent or any amount
of additional rent), and fails to cure such default after the giving of any
required notice and the expiration of any applicable cure period, then, to the
extent required for the payment of any fixed rent, additional rent, or any other
sums as to which Tenant is in default, or for any sum that Landlord may
reasonably expend or may be required to expend by reason of any such default
(including any damages or deficiency accrued before or after summary proceedings
or other re-entry by Landlord), (a) Landlord may notify the Issuing Bank (as
such term is defined in Section 6.03 hereof) and thereupon receive all of the
monies represented by the said Letter of Credit and use, apply, or retain the
whole or any part of
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such proceeds, or (b) in the event that Landlord is holding a cash security
pursuant to Section 6.03 below, Landlord may use, apply, or retain the whole or
any part of the cash security. In the event that Landlord applies or retains any
portion or all of such cash security or proceeds of such Letter of Credit, or
both, as the case may be, the amount not so used, applied or retained shall
continue to be treated as Tenant's security deposit, and Tenant shall restore
the amount so applied or retained within seven (7) days after Landlord's demand
therefor, so that, at all times, the amount deposited shall be $4,000,000.00,
subject to increase and/or reduction as hereinafter provided. On or before the
Phase III Effective Date, the amount of the Letter of Credit shall be increased
by $1,000,000.00 and on or before the Phase IV Effective Date, the Letter of
Credit shall be increased by an additional $1,000,000.00. In the event that
Tenant shall fully and faithfully comply with all of the material terms,
provisions, covenants and conditions of this lease, that portion, if any, of the
cash security or Letter of Credit, or both, as the case may be, not used,
applied or retained shall be returned to Tenant within thirty (30) days after
the Expiration Date and after delivery of possession of the entire Demised
Premises to Landlord, in accordance with, and subject to, the applicable
provisions of this lease.
6.02 To the extent that the security deposited under this Article is a
cash security deposit, Landlord agrees to deposit same into an interest bearing
account in a bank or savings and loan association to be selected, from time to
time, by Landlord in its sole discretion. Landlord agrees, further to hold said
security in such an account for the entire term of this lease, subject, however,
to the terms of Section 6.01 above with respect to the use, application or
retention of such security. To the extent permitted by law, Tenant agrees that
Landlord shall be entitled to receive and retain, as an administrative expense,
a sum equal to one (1%) percent per annum upon such security, and Landlord shall
have the right to withdraw such sum from time to time as Landlord shall
determine in is sole discretion. The balance of the interest earned on such
security shall, provided Tenant is not then in default under this lease, and to
the extent that same shall not be used, applied or retained pursuant to the
terms of Section 6.01 above, be paid to Tenant upon the request of Tenant, but
not more than once during any calendar year of the term of this lease. Unless
and until such interest shall be paid to Landlord and Tenant as herein provided,
the same shall be held as a part of the security deposited by Tenant, subject
to, and in accordance with, the terms of Section 6.01 above. Landlord shall not
be required to credit any security with the interest for any period during which
Landlord does not receive interest thereon.
6.03 (a) Any letter of credit (the "LETTER OF Credit") to be delivered
as security under this Article shall be a clean, irrevocable and unconditional
letter of credit issued by and drawn upon a commercial bank (hereinafter
referred to as the "ISSUING BANK") with offices for banking purposes in the City
of New York which is a member of the New York Clearinghouse Association (or any
successor thereto) or which is approved by Landlord, 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 be in the amount of
$4,000,000.00, subject to the increase in such amount as provided in Section
6.01 hereof or the reduction in such amount as provided in Sections 6.07 - 6.10
hereof. The Letter of Credit shall provide that:
(i) 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 only the Letter of Credit and a sight draft in the
amount to be drawn;
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(ii) The Letter of Credit shall be deemed to be automatically
renewed, without amendment, for consecutive periods of one year each, 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; and
(iii) The Letter of Credit shall be transferable by the
beneficiary thereof, without charge to the beneficiary, and that any failure to
pay the transfer charges shall not affect the beneficiary's ability to transfer
the Letter of Credit; the Letter of Credit may be transferred as aforesaid from
time to time, by the then beneficiary under the Letter of Credit; to effectuate
a transfer under the Letter of Credit, the beneficiary must notify the Issuing
Bank in a writing signed by an authorized signatory of beneficiary, of the name
and address of the transferee and of the effective date of the transfer; and
upon the Issuing Bank's receipt of such writing, the Issuing Bank will issue an
amendment to the Letter Credit that changes the name and address of the
beneficiary hereof and shall deliver the original of such amendment to the new
beneficiary/transferee and a copy thereof to the prior beneficiary/transferor.
(b) Landlord, after its receipt of the Non-Renewal Notice, shall
have the right, exercisable by a sight draft only, to receive the moneys
represented by the Letter of Credit, which moneys shall be held by Landlord as a
cash deposit pursuant to the terms of this Article pending the replacement of
such Letter of Credit.
6.04 In the event of a sale or transfer of the Land or the Building, or
the then Landlord's interest in the Land or the Building, or a leasing by the
then Landlord of the Land or the Building or of Landlord's interest therein,
Landlord shall, at no cost or expense to Landlord, transfer or assign such cash
security or Letter of Credit, or both, as the case may be, to the vendee,
transferee or lessee, and Landlord shall notify Tenant, by certified mail,
return receipt requested, of such sale, transfer or lease, together with the
name and address of such vendee, transferee or lessee, and, in accordance with
Section 7-105 of the New York General Obligations Law, Landlord shall thereupon
be released by Tenant from all liability for the return of such cash security or
Letter of Credit. In such event, Tenant agrees to look solely to the new
Landlord for the return of said cash security or Letter of Credit. It is agreed
that the provisions hereof shall apply to every transfer or assignment made of
said cash security or Letter of Credit to a new Landlord. In connection with the
foregoing, Tenant, at no cost to Landlord, shall reasonably cooperate with
Landlord and such vendee, transferee or lessee in connection with the transfer
or assignment of such security or Letter of Credit, including, without
limitation, executing and delivering, within ten (10) days after demand
therefor, any and all instruments, certificates, agreements or other documents
that Landlord, such vendee, transferee or lessee, the bank with which such
security is deposited or the Issuing Bank may require.
6.05 Tenant covenants that it will not assign or encumber, or attempt to
assign or encumber, such cash security or Letter of Credit, and that neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment, or attempted encumbrance.
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6.06 In the event that at any time during the term of this lease
Landlord, in Landlord's reasonable opinion, believes that circumstances have
occurred indicating that the Issuing Bank may be incapable of, unable to, or
prohibited from honoring the then existing Letter of Credit (hereinafter
referred to as the "EXISTING L/C") in accordance with the terms thereof, then,
upon the happening of either of the foregoing, Landlord may send written notice
to Tenant (hereinafter referred to as the "REPLACEMENT NOTICE") requiring Tenant
within forty-five (45) days to replace the Existing L/C with a new letter of
credit (hereinafter referred to as the "REPLACEMENT L/C") from an Issuing Bank
meeting the qualifications described in Section 6.03. Upon receipt of a
Replacement L/C meeting the qualifications of Section 6.03, Landlord shall
forthwith return the Existing L/C to Tenant. In the event that (a) a Replacement
L/C meeting the qualifications of Section 6.03 is not received by Landlord
within the time specified or (b) Landlord reasonably believes an emergency
exists, then in either event, the Existing L/C may be presented for payment by
Landlord and the proceeds thereof shall be held by Landlord in accordance with
Sections 6.01 and 6.02 subject, however, to Tenant's right, at any time
thereafter prior to a Tenant's default hereunder, to replace such cash security
with a new letter of credit meeting the qualifications of Section 6.03.
6.07 Tenant may, at any time after the four (4) year period commencing
on the Rent Commencement Date, request Landlord to reduce the amount of the
security deposit being held by Landlord under this Article to $5,000,000.00, in
which event, provided that at the time of such request (a) this lease is in full
force and effect, (b) Tenant has paid the fixed rent and additional rent for
such period, (c) no Event of Default then exists, (d) no Event of Default
occurred during the one (1) year period ending on the date that Tenant makes
such request, and (e) the amount of security then being held by Landlord under
this Article is at least $6,000,000.00, Landlord shall either return to Tenant
from the security deposit being held by Landlord under this Article the
difference between the amount of the security deposit being so held by Landlord
and $5,000,000.00, or, if such security is in the form of a Letter of Credit,
Landlord shall consent in writing to, and, at no cost to Landlord, (A) accept
from the Issuing Bank, an amendment to the Letter of Credit which reduces the
amount thereof to $5,000,000.00 but which does not otherwise amend or modify
same, and (B) if requested by the Issuing Bank, execute and deliver to the
Issuing Bank such instruments required by the Issuing Bank to effectuate such
reduction; or accept from the Issuing Bank a replacement Letter of Credit in the
amount of $5,000,000.00, but which is otherwise substantially identical to the
Letter of Credit then on deposit with Landlord, Landlord agreeing that upon its
receipt of said replacement Letter of Credit it shall return the Letter of
Credit then on deposit with Landlord to Tenant or to the Issuing Bank.
6.08 Tenant may, at any time after the five (5) year period commencing
on the Rent Commencement Date, request Landlord to reduce further the amount of
the security deposit being held by Landlord under this Article to $4,000,000.00,
in which event, provided that at the time of such request (a) this lease is in
full force and effect, (b) Tenant has paid the fixed rent and additional rent
for such period, (c) no Event of Default then exists, (d) no Event of Default
occurred during the one (1) year period ending on the date that Tenant makes
such request, and (e) the amount of security then being held by Landlord under
this Article is at least $5,000,000.00, Landlord shall either return to Tenant
from the security deposit being held by Landlord under this Article the
difference between the amount of the security deposit being so
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held by Landlord and $4,000,000.00, or, if such security is in the form of a
Letter of Credit, Landlord shall consent in writing to, and, at no cost to
Landlord, (A) accept from the Issuing Bank, an amendment to the Letter of Credit
which reduces the amount thereof to $4,000,000.00 but which does not otherwise
amend or modify same, and (B) if requested by the Issuing Bank, execute and
deliver to the Issuing Bank such instruments required by the Issuing Bank to
effectuate such reduction; or accept from the Issuing Bank a replacement Letter
of Credit in the amount of $4,000,000.00, but which is otherwise substantially
identical to the Letter of Credit then on deposit with Landlord, Landlord
agreeing that upon its receipt of said replacement Letter of Credit it shall
return the Letter of Credit then on deposit with Landlord to Tenant or to the
Issuing Bank.
6.09 Tenant may, at any time after the six (6) year period commencing on
the Rent Commencement Date, request Landlord to reduce further the amount of the
security deposit being held by Landlord under this Article to $3,000,000.00, in
which event, provided that at the time of such request (a) this lease is in full
force and effect, (b) Tenant has paid the fixed rent and additional rent for
such period, (c) no Event of Default then exists, (d) no Event of Default
occurred during the one (1) year period ending on the date that Tenant makes
such request, and (e) the amount of security then being held by Landlord under
this Article is at least $4,000,000.00, Landlord shall either return to Tenant
from the security deposit being held by Landlord under this Article the
difference between the amount of the security deposit being so held by Landlord
and $3,000,000.00, or, if such security is in the form of a Letter of Credit,
Landlord shall consent in writing to, and, at no cost to Landlord, (A) accept
from the Issuing Bank, an amendment to the Letter of Credit which reduces the
amount thereof to $3,000,000.00 but which does not otherwise amend or modify
same, and (B) if requested by the Issuing Bank, execute and deliver to the
Issuing Bank such instruments required by the Issuing Bank to effectuate such
reduction; or accept from the Issuing Bank a replacement Letter of Credit in the
amount of $3,000,000.00, but which is otherwise substantially identical to the
Letter of Credit then on deposit with Landlord, Landlord agreeing that upon its
receipt of said replacement Letter of Credit it shall return the Letter of
Credit then on deposit with Landlord to Tenant or to the Issuing Bank.
6.10 Tenant may, at any time after the seven (7) year period commencing
on the Rent Commencement Date, request Landlord to reduce further the amount of
the security deposit being held by Landlord under this Article to $2,000,000.00,
in which event, provided that at the time of such request (a) this lease is in
full force and effect, (b) Tenant has paid the fixed rent and additional rent
for such period, (c) no Event of Default then exists, (d) no Event of Default
occurred during the one (1) year period ending on the date that Tenant makes
such request, and (e) the amount of security then being held by Landlord under
this Article is at least $3,000,000.00, Landlord shall either return to Tenant
from the security deposit being held by Landlord under this Article the
difference between the amount of the security deposit being so held by Landlord
and $2,000,000.00, or, if such security is in the form of a Letter of Credit,
Landlord shall consent in writing to, and, at no cost to Landlord, (A) accept
from the Issuing Bank, an amendment to the Letter of Credit which reduces the
amount thereof to $2,000,000.00 but which does not otherwise amend or modify
same, and (B) if requested by the Issuing Bank, execute and deliver to the
Issuing Bank such instruments required by the Issuing Bank to effectuate such
reduction; or accept from the Issuing Bank a replacement Letter of Credit in the
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amount of $2,000,000.00, but which is otherwise substantially identical to the
Letter of Credit then on deposit with Landlord, Landlord agreeing that upon its
receipt of said replacement Letter of Credit it shall return the Letter of
Credit then on deposit with Landlord to Tenant or to the Issuing Bank.
6.11 Tenant's federal employer identification number is: 13-4034015.
ARTICLE 7 7
SUBORDINATION, NOTICE TO LESSORS AND MORTGAGEES
7.01 This lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all ground leases, overriding leases
and underlying leases of the Land and/or the Building now or hereafter existing
and to all mortgages which may now or hereafter affect the Land and/or the
Building and/or any of such leases, whether or not such mortgages shall also
cover other lands and/or buildings, to each and every advance made or hereafter
to be made under such mortgages, and to all renewals, modifications,
replacements and extensions of such leases and such mortgages and spreaders and
consolidations of such mortgages. This Section shall be self-operative and no
further instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute and deliver any instrument that
Landlord, the lessor of any such lease or the holder of any such mortgage or any
of their respective successors in interest may reasonably request to evidence
such subordination. In the event Tenant fails to execute and deliver to Landlord
such instrument within fifteen (15) days of request therefor, Landlord may, but
shall not be obligated to, execute such instrument for and on behalf of Tenant
as its attorneys-in-fact. In acknowledgment thereof, Tenant hereby appoints
Landlord as its irrevocable attorney-in-fact coupled with an interest solely to
execute and deliver any instruments required to carry out the intent of this
Section 7.01 on behalf of Tenant. The leases to which this lease is, at the time
referred to, subject and subordinate pursuant to this Article are hereinafter
sometimes referred to as "SUPERIOR LEASES" and the mortgages to which this lease
is, at the time referred to, subject and subordinate are hereinafter sometimes
referred to as "SUPERIOR MORTGAGES" and the lessor of a superior lease or its
successor in interest at the time referred to is sometimes hereinafter referred
to as a "LESSOR".
7.02 In the event of any act or omission of Landlord that would give
Tenant the right, immediately or after lapse of a period of time, to cancel or
terminate this lease, or to claim a partial or total eviction, or entitle Tenant
to any abatement or offset against the payment of rent, Tenant shall not
exercise such right (i) until it has given written notice of such act or
omission or the accrual of such claim or right, to the holder of each superior
mortgage and the lessor of each superior lease whose name and address shall
previously have been furnished to Tenant, and (ii) unless such act or omission
shall be one which is not capable of being remedied by Landlord or such mortgage
holder or lessor within a reasonable period of time, until a reasonable period
for remedying such act or omission shall have elapsed following the giving of
such notice and following the time when such holder or lessor shall have become
entitled under such superior mortgage or superior lease, as the case may be, to
remedy the same (which reasonable period shall in no event be less than the
period to which Landlord would be entitled under this lease or otherwise, after
similar notice, to effect such remedy, but no more than sixty (60) days after
the date such holder or lessor receives such notice (except to the extent is
entitled under this lease or
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otherwise to more than sixty (60) days)), provided such holder or lessor shall
with due diligence give Tenant written notice of intention to, and commence and
continue to remedy such act or omission.
7.03 If the lessor of a superior lease or the holder of a superior
mortgage shall succeed to the rights of Landlord under this lease, whether
through possession or foreclosure action or delivery of a new lease or deed, or
if a superior lease shall terminate or be terminated for any reason, then, at
the election and upon demand of the party so succeeding to Landlord's rights, as
the successor owner of the property of which the Demised Premises is a part, or
as the mortgagee in possession thereof, or otherwise (such party, owner or
mortgagee being herein sometimes called the "SUCCESSOR LANDLORD"), Tenant shall
attorn to and recognize such successor landlord as Tenant's landlord under this
lease, and shall promptly execute and deliver any instrument that such successor
landlord may reasonably request to evidence such attornment. Upon such
attornment, this lease shall continue in full force and effect as, or as if it
were, a direct lease between the successor landlord and Tenant, upon all of the
executory terms, conditions and covenants as are set forth in this lease and
shall be applicable after such attornment, except that the successor landlord
shall not be
(a) liable for any previous act or omission of Landlord (or its
predecessor in interest) under this lease, except for defaults of the Landlord
under this lease that are continuing after the successor landlord becomes the
Landlord under this lease;
(b) subject to any credits, offsets, claims, counterclaims,
demands or defenses which Tenant may have against Landlord (or its predecessors
in interest), except for offsets and defenses that are expressly set forth in
this lease;
(c) (except that to the extent the lessor of a superior lease or
holder of a superior mortgage (before becoming a successor landlord) otherwise
expressly agreed in writing, either in such superior lease or superior mortgage,
or in a subordination, non-disturbance and attornment agreement with Tenant)
bound by any previous modification of this lease or by any previous prepayment
of more than one month's fixed rent, unless such modification or prepayment
shall have been expressly approved in writing by the lessor of the superior
lease or the holder of the superior mortgage through or by reason of which the
successor landlord shall have succeeded to the rights of Landlord under this
lease;
(d) bound by any covenant to undertake or complete any
construction of the Demised Premises or any portion thereof or pay for or
reimburse Tenant for any costs incurred in connection with such construction,
except for Landlord's Work and Post-Commencement Landlord's Work;
(e) required to account for any security deposit of Tenant other
than any security deposit actually delivered to the successor landlord by
Landlord;
(f) liable for the obligations of Landlord under this lease for
any period of time other than such period as such successor landlord holds such
interest;
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(g) responsible for any monies owing by Landlord to the credit of
Tenant; and
(h) bound by any obligation to make any payment to Tenant or grant
or be subject to any credits. The foregoing provisions shall inure to the
benefit of any successor landlord, shall apply to the tenancy of Tenant
notwithstanding that this lease may terminate upon the termination of the
superior lease, and shall be self-operative upon any such demand, without
requiring any further instrument to give effect to said provisions. Tenant,
however, upon demand of any successor landlord, agrees to execute, from time to
time, an instrument in confirmation of the foregoing provisions, satisfactory to
such successor landlord, in which Tenant shall acknowledge such attornment.
Nothing contained in this Section 7.03 shall be construed to impair any right,
privilege or option of any successor landlord (except as may otherwise be
expressly set forth in this Section 7.03) or, except as otherwise provided in
this lease, to impair any right, privilege or option of Tenant.
7.04 If, in connection with obtaining financing or refinancing for the
Building, or Landlord's estate and interest therein, a lender shall request
reasonable modifications to this lease as a condition to such financing or
refinancing, Tenant will not withhold, delay or defer its consent thereto,
provided that such modifications do not increase the obligations of Tenant
hereunder (except, perhaps, to the extent that Tenant may be required to give
notices of any defaults by Landlord to such lender) or adversely affect Tenant's
rights or remedies under this lease or the leasehold interest hereby created.
7.05 (a) Notwithstanding anything contained in this Article to the
contrary, but provided that the Tenant named herein (or a Related Entity (as
defined in Section 9.11 below) of the Tenant named herein) or a successor to the
Tenant named herein (or to a Related Entity of the Tenant named herein) after a
Stock Transfer (as defined in said Section 9.11) is the then Tenant hereunder,
and such Tenant then occupies for its own account at least 57,000 rentable
square feet of the Demised Premises, Landlord shall obtain and deliver to Tenant
a Subordination, Non-Disturbance and Attornment Agreement (hereinafter referred
to as an "SNDA") for the benefit of Tenant from the holder of the superior
mortgage now in effect and from the holder of each new superior mortgage that
becomes effective after the date hereof and from the lessor under each superior
lease that becomes effective after the date hereof, which SNDA shall be in
recordable form and content then utilized by such holder or lessor and, with
respect to each new superior mortgage that becomes effective after the date
hereof and from the lessor under each superior lease that becomes effective
after the date hereof, shall be comparable to the SNDA obtained from the holder
of the superior mortgage now in effect, and which shall provide, in substance,
that as long as Tenant is not in default in the payment of fixed rent or
additional rent or any other term, covenant or condition of this lease, beyond
any applicable notice and cure period and provided Tenant attorns to such holder
or lessor, as the case may be, under the terms and provisions of this lease, (a)
its rights as Tenant hereunder shall not be affected or terminated, (b) its
possession of the Demised Premises shall not be disturbed, and (c) no action or
proceeding shall be commenced to remove or evict Tenant. (Notwithstanding the
foregoing, such occupancy requirement of 57,000 rentable square feet shall not
apply to the holder of the Superior Mortgage now in effect, and thereafter,
until the Demised Premises comprises 57,000 rentable square feet
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(or more), such 57,000 rentable square foot requirement shall be reduced to the
actual number of rentable square feet of the Demised Premises.) Until such time
as Landlord obtains and delivers to Tenant an SNDA from a holder of a superior
mortgage or from the lessor under a superior lease, this lease shall not be
subject or subordinate to the superior mortgage or superior lease in question.
Notwithstanding anything contained in this Section 7.05 to the contrary, to the
extent that the failure or inability of Landlord to deliver to Tenant an SNDA
from such holder or lessor results in this lease not being subject and
subordinate to such superior mortgage or superior lease, Landlord shall not be
obligated to obtain and deliver to Tenant an SNDA from such holder or lessor. In
addition, if Tenant fails to execute, acknowledge or deliver to Landlord or to
such holder or lessor such an SNDA within thirty (30) days after Landlord's
delivery of same to Tenant, whether or not such holder or lessor has already
executed same, this lease shall be subordinate to such superior mortgage or
superior lease, as the case may be, as set forth in Sections 7.01, 7.02 and 7.03
above, and Landlord shall be deemed to have fulfilled all of its obligations
under this Section with respect to obtaining an SNDA from such holder or lessor,
as the case may be.
(b) As between Tenant and the holder of any superior mortgage and/or
the lessor under any superior lease with whom Tenant has entered into an SNDA,
if any of the provisions of this Article 7 are inconsistent with the provisions
of such SNDA, the provisions of such SNDA shall govern.
ARTICLE 8
QUIET ENJOYMENT
8.01 So long as no Event of Default exists, Tenant shall peaceably and
quietly have, hold and enjoy the Demised Premises subject, nevertheless, to the
obligations, terms, covenants and conditions of this lease and, as provided in
Article 7, to the superior leases and the superior mortgages.
ARTICLE 9
ASSIGNMENT AND SUBLETTING
9.01 (a) 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 Demised Premises or any part
thereof, or suffer, or permit, the Demised Premises, or any part thereof, to be
used or occupied by others, without the prior written consent of Landlord in
each instance. If this lease be assigned, or if the Demised 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
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any portion of its sublet space, or otherwise suffer or permit the sublet space,
or any part thereof, to be used or occupied by others, without Landlord's prior
written consent in each instance.
(b) As used in this Article, except in the definition of the term
"RELATED ENTITY," the word "CONTROL," (including the derivations of the word
"CONTROL," such as "CONTROLLING" "CONTROLLED BY" or "UNDER COMMON CONTROL WITH"
or words of like import) shall mean: (i) ownership of more than 50% of the
outstanding voting capital stock of a corporation or more than 50% of the
beneficial interests of any other entity OR (ii) the ability effectively to
control or direct the business decisions of such corporation or entity. The term
"RELATED ENTITY" shall mean an entity which controls, is controlled by or is
under common control with Tenant, which for purposes hereof shall mean (x)
ownership by Tenant of more than 50% of the outstanding voting capital stock of
a corporation or more than 50% of the beneficial interests of any other entity
AND (y) the ability to effectively control or direct the business decisions of
such corporation or entity
9.02 (a) 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 Demised
Premises, Tenant shall give notice thereof to Landlord, which notice (the "A/S
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 thirty (30) nor more than 180 days (other than for any
proposed Excepted Subletting (as hereinafter provided) for which such 180 days
shall be extended to 270 days) after the giving of such notice; (b) a statement
setting forth, in reasonable detail, the identity of the proposed assignee or
subtenant, the nature of its business and its proposed use of the Demised
Premises; and (c) current financial information with respect to the proposed
assignee or subtenant, including its most recent financial report. In the case
of a proposed assignment, the entire Demised Premises shall be referred to as
the "LEASEBACK SPACE," and in the case of a proposed subletting, the portion of
the Demised Premises that Tenant desires to sublet shall be referred to as the
"LEASEBACK SPACE." IN LIEU of the conformed or photostatic copy of the proposed
sublease described in clause (a) hereof, the A/S Notice may be accompanied by a
term sheet or letter of intent (the "SUBLEASE TERM SHEET"), duly executed by
both Tenant and the proposed subtenant, which sets forth (A) the commencement
date and the expiration date of the proposed subletting, (B) the annual rental
payable during the term of the proposed subletting, (C) all material items of
additional rent payable under, or with respect to, the proposed sublease,
including, without limitation, any additional rent related to increases in real
estate taxes or operating expenses for the Building, increases in any price
index or wage or labor rate, and any sprinkler or water charges, (D) the amount
and form of any security to be deposited by the proposed subtenant, (E) the
dollar amount of any work which Tenant is willing to perform or pay for in the
Leaseback Space, (F) any concession or free rent period applicable to the
proposed subletting, (G) all other material terms and conditions of the proposed
subletting, and (H) if the Leaseback Space is not the entire Demised Premises,
the rentable area of the Leaseback Space and a floor plan thereof. Except for an
"Excepted Subletting" (as hereinafter defined) each A/S Notice given to Landlord
shall be deemed an offer from Tenant to Landlord whereby Landlord (or Landlord's
designee) may, at its option (hereinafter referred to as "LANDLORD'S OPTION"),
(i) sublease the Leaseback Space from Tenant upon the terms and conditions
hereinafter set forth (if the proposed transaction is a sublease of all or part
of the
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Demised Premises and the proposed subletting is not for all (or substantially
all) of the balance of the term of this lease), (ii) terminate this lease (if
the proposed transaction is an assignment or a sublease of all or substantially
all of the Demised Premises for a term expiring within the last fifteen (15%) of
the then balance of the term of this lease), or (iii) terminate this lease with
respect to the Leaseback Space (if the proposed transaction is a sublease of
part of the Demised Premises for a term expiring within the last fifteen (15%)
of the then balance of the term of this lease). Landlord's Option may be
exercised by Landlord by notice to Tenant at any time during the twenty (20) day
period (the "A/S REVIEW PERIOD") commencing on the date (the "A/S NOTICE DATE")
that Landlord has received the A/S Notice and all of the documentation and
information described in this Section 9.02; and through the last day of the A/S
Review Period Tenant shall not assign this lease nor sublet such space to any
person.
(b) In the event that Landlord exercises its Landlord's Option in
accordance with the provisions of Section 9.02(a) above and within twelve (12)
months thereof, Landlord re-leases (herein, the "SUCCEEDING LEASE") the
Leaseback Space or any portion thereof (the "RELET SPACE"), to any other person,
party or entity (herein, the "SUCCEEDING TENANT"), then Landlord agrees to pay
to Tenant the "SHARED EXCESS" (as such term is hereinafter defined), if any,
with respect to the ReLet Space, subject to and in accordance with the
provisions hereinafter contained. As used herein, the "SHARED EXCESS" shall mean
fifty (50%) percent of the amount by which (1) the fixed rent and additional
rent payable and actually paid by the Succeeding Tenant pursuant to the
Succeeding Lease for the ReLet Space for the portion of the term thereof
corresponding to the remainder of the term of this lease exceeds (2) the fixed
rent and additional rent payable by Tenant as set forth in this lease for the
corresponding part of the term with respect to the ReLet Space (the difference
between (1) and (2) being herein called the "OVERAGE"), after (3) Landlord has
recovered Landlord's reasonable and customary expenses, including without
limitation, for brokerage commissions, advertising expenses, attorneys' fees and
construction and design allowances, payments on account of work and/or
contributions to prepare the ReLet Space for the Succeeding Tenant's occupancy
(including the costs incurred by Landlord in physically separating the ReLet
Space from the balance of the Demised Premises), as well as Landlord's lost
income in rent concessions or due to vacancy, all of which shall be charged
against the first Overage actually received by Landlord until fully recovered.
The Shared Excess for the ReLet Space shall continue to be paid for so long as
the Overage is being received by Landlord, provided, however, that no Shared
Excess shall be required to be paid and no Overage shall apply at any time after
the term of this lease would have expired pursuant to its own terms. Any payment
to be made by Landlord to Tenant pursuant to this Section shall be payable
solely out of the Shared Excess, if any, if, as and when actually received by
Landlord to the extent attributable to the ReLet Space and to a portion of the
term of the Succeeding Lease corresponding to what would have been otherwise
unexpired term of this lease and shall be subject to the condition that there
shall not have been any uncured default by Tenant in observing or performing any
of the terms, covenants and conditions of this lease. If at the time Landlord
would otherwise be obligated to make a payment under this Section, but for the
fact that at such time Tenant is in breach or default of any of the terms,
covenants and conditions of this lease on Tenant's part to observe, perform or
comply with, Landlord shall become obligated to make such payment when such
breach or default is cured, provided Landlord accepts such cure and does not
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terminate this lease as a result of such default, and provided further the other
conditions to Landlord's obligation to make such payment remain satisfied.
9.03 (a) If Landlord exercises Landlord's Option to terminate this
lease in the case where Tenant desires either to assign this lease or sublet all
or substantially all of the Demised Premises, then, this lease shall end and
expire on the date that such assignment or sublet was to be effective or
commence, as the case may be, and the fixed rent and additional rent shall be
paid and apportioned to such date.
(b) If Landlord exercises Landlord's Option to terminate this
lease in part in any case where Tenant desires to sublet part of the Demised
Premises, then, (i) this lease shall end and expire with respect to such part of
the Demised Premises on the date that the proposed sublease was to commence; and
(ii) from and after such date the fixed rent and Tenant's Proportionate Share
shall be adjusted, based upon the proportion that the rentable area of the
Demised Premises remaining bears to the total rentable area of the Demised
Premises.
9.04 (a) If Landlord exercises Landlord's Option to sublet the
Leaseback Space, such sublease to Landlord or its designee (as subtenant) shall
be at the lower of (i) the rental rate per rentable square foot of fixed rent
and additional rent then payable pursuant to this lease and (ii) the rentals set
forth in the proposed sublease or in the Sublease Term Sheet, as the case may
be, and shall be for the same term as that of the proposed subletting, and such
sublease shall:
(v) be expressly subject to all of the covenants, agreements,
terms, provisions and conditions of this lease except such as are irrelevant or
inapplicable, and except as otherwise expressly set forth to the contrary in
this Section;
(w) be upon the same terms and conditions as those contained
in the proposed sublease, or in the Sublease Term Sheet, as the case may be,
except such as are irrelevant or inapplicable and except as otherwise expressly
set forth to the contrary in this Section;
(x) give the sublessee the unqualified and unrestricted right,
without Tenant's permission, to assign such sublease or any interest therein
and/or to sublet the Leaseback Space or any part or parts of the Leaseback Space
and to make any and all changes, alterations, decoration, installations, and
improvements in the space covered by such sublease (Landlord hereby agreeing
that Tenant shall not be obligated to remove or restore any such changes,
alterations, decorations, installations or improvements) and if the proposed
sublease will result in all or substantially all of the Demised Premises being
sublet, grant Landlord or its designee the option to extend the term of such
sublease for the balance of the term of this lease less one (1) day;
(y) provide that any assignee or further subtenant, of
Landlord or its designee, may, at the election of Landlord, be permitted to make
changes, alterations, decorations, installations and improvements in the
Leaseback Space or any part thereof and shall also provide in substance that any
such changes, alterations, decorations, installations and improvements in the
Leaseback Space therein made by any assignee or subtenant of Landlord or
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its designee may be removed, in whole or in part, by such assignee or subtenant,
at its option, prior to or upon the expiration or other termination of such
sublease provided that such assignee or subtenant, at its expense, shall repair
any damage and injury to that portion of the Leaseback Space so sublet caused by
such removal (Landlord hereby agreeing that Tenant shall not be obligated to
remove or restore any such changes, alterations, decorations, installations or
improvements); and
(z) also provide that (A) the parties to such sublease
expressly negate any intention that any estate created under such sublease be
merged with any other estate held by either of said parties, (B) any assignment
or subletting by Landlord or its designee (as the subtenant) may be for any
purpose or purposes that Landlord, in Landlord's uncontrolled discretion, shall
deem suitable or appropriate, (C) Tenant, at Tenant's expense, shall and will at
all times provide and permit reasonably appropriate means of ingress to and
egress from the Leaseback Space so sublet by Tenant to Landlord or its designee,
and (D) that at the expiration of the term of such sublease, Tenant will accept
the space covered by such sublease in its then existing condition, subject to
the obligations of the sublessee to make such repairs thereto as may be
necessary to preserve the premises demised by such sublease in good order and
condition.
(b) If Landlord exercises Landlord's Option to sublet the Leaseback
Space, then:
(i) Landlord shall indemnify and save Tenant harmless from all
obligations under this lease as to the Leaseback Space during the period of time
it is so sublet to Landlord;
(ii) Performance by Landlord, or its designee, under a
sublease of the Leaseback Space shall be deemed performance by Tenant of any
similar obligation under this lease and any default under any such sublease
shall not give rise to a default under a similar obligation contained in this
lease, nor shall Tenant be liable for any default under this lease or deemed to
be in default hereunder if such default is occasioned by or arises from any act
or omission of the tenant under such sublease or is occasioned by or arises from
any act or omission of any occupant holding under or pursuant to any such
sublease; and
(iii) Tenant shall have no obligation, at the expiration or
earlier termination of the term of this lease, to remove any alteration,
installation or improvement made in the Leaseback Space by Landlord (or its
designee).
9.05 In the event that Tenant complies with the provisions of Section
9.02 and Landlord does not exercise any Landlord's Option within the A/S Review
Period, and provided that no Event of Default then exists, Landlord's consent
(which must be in writing and in form reasonably satisfactory to Landlord) to
the proposed assignment or sublease shall not be unreasonably withheld,
conditioned or delayed, provided and upon the condition that:
(a) In Landlord's reasonable judgment the proposed assignee or
subtenant is engaged in a business and the Demised Premises, or the relevant
part thereof, will be used in a manner which (i) is in keeping with the then
standards of the Building, (ii) is limited to the use
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expressly permitted under this lease, and (iii) will not violate any negative
covenant as to use contained in any other lease of space in the Building,
Landlord agreeing to advise Tenant of any such negative covenants promptly upon
request;
(b) the proposed assignee or subtenant is a reputable person of
good character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable proof
thereof;
(c) if, on the date that Landlord receives the A/S Notice,
Landlord, in Landlord's reasonable determination, has available for leasing, or
expects to have available for leasing during the six (6) month period commencing
on such date, space in the Building that is comparable in size to the Demised
Premises (in the case of a proposed assignment by Tenant) or comparable in size
to the portion of the Demised Premises that Tenant desires to sublet (in the
case of a proposed subletting by Tenant), neither (i) the proposed assignee or
sublessee nor (ii) any person that, directly or indirectly, controls, is
controlled by, or is under common control with, the proposed assignee or
sublessee or any person who controls the proposed assignee or sublessee, is then
an occupant or tenant of any part of the Building;
(d) if, on the date that Landlord receives the A/S Notice,
Landlord, in Landlord's reasonable determination, has available for leasing, or
expects to have available for leasing during the six (6) month period commencing
on such date, space in the Building that is comparable in size to the Demised
Premises (in the case of a proposed assignment by Tenant) or comparable in size
to the portion of the Demised Premises that Tenant desires to sublet (in the
case of a proposed subletting by Tenant), the proposed assignee or sublessee is
not a person with whom Landlord is then, or shall have been during the previous
six (6) month period, negotiating to lease space in the Building;
(e) the proposed assignment agreement or sublease agreement, as
the case may be, shall be in form reasonably satisfactory to Landlord and shall
comply with the applicable provisions of this Article;
(f) at no time on any floor of the Demised Premises shall there be
off of the elevator lobby to the rentable space on such floor, more than three
(3) other separate entrances to the rentable space on such floor (other than the
space occupied by the then Tenant and any Related Entity of the then Tenant);
(g) the rental and other terms and conditions of the assignment or
sublease are in all material respects the same as those contained in the
proposed assignment or sublease furnished to Landlord pursuant to Section 9.02
or in the Sublease Term Sheet, as the case may be;
(h) Tenant shall not have: (i) advertised or publicized to the
public in any way the availability of the Demised Premises without prior notice
to, and approval by, Landlord, which approval shall not be unreasonably withheld
or delayed, nor shall any advertisement state the name (as distinguished from
the address) of the Building or the proposed rental, or (ii) listed
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the Demised Premises for subletting or assignment at a rental rate less than the
fixed rent and additional rent at which Landlord is then offering to lease other
space in the Building;
(i) the sublease shall not allow the use of the Demised Premises
or any part thereof for any purpose that is not expressly permitted under this
lease, subject to all of the terms, covenants, conditions, prohibitions,
restrictions and limitations set forth in this lease;
(j) the proposed assignee or sublessee is not a person entitled,
directly or indirectly, to diplomatic or sovereign immunity or is not subject to
service of process in New York State or to the jurisdiction of the State and
Federal Courts located in New York State; and
(k) the sublease shall not provide for an option on behalf of the
subtenant thereunder to extend or renew the term of such sublease beyond the
date which is one (1) day prior to the last day of the term of this lease or the
Extension Term (if any).
If within seventeen (17) days after the A/S Notice Date, Landlord fails to
respond to Tenant's request for Landlord's consent to the proposed assignment or
subletting (whether by granting or denying such consent or by requesting any of
the additional information or documentation to which Landlord is entitled under
this Article 9), Tenant may give to Landlord a second (2nd) notice notifying
Landlord that if within three (3) days after Landlord's receipt of such second
(2nd) notice Landlord fails to respond to Tenant's request for such consent,
such failure shall be deemed the granting of such consent. Thereafter, if
Landlord fails to respond to Tenant's request for such consent within such three
(3) day period, such consent shall be deemed given, but only to the proposed
assignment or subletting in question.
9.06 (a) Tenant shall reimburse Landlord within fifteen (15) days after
Landlord's demand, and as additional rent, for all reasonable and actual
out-of-pocket costs and expenses that may be incurred or paid by Landlord in
connection with all proposed assignments and sublettings, including, without
limitation, the costs of making investigations as to the acceptability of the
proposed assignee or subtenant, and legal costs incurred in connection with the
reviewing of the proposed assignment or subletting and all of the documents and
other information related thereto (which costs and expenses Tenant covenants and
agrees to reimburse to Landlord regardless of whether Landlord consents to the
proposed assignment or sublease or whether such consent is required hereunder).
(b) In the event that (i) Landlord fails to exercise any Landlord's
Option and consents to a proposed assignment or sublease and (ii) Tenant fails
to execute and deliver the assignment or sublease to which Landlord consented
within 120 days after the giving of such consent, then Tenant shall again comply
with all of the provisions and conditions of Section 9.02, before assigning this
lease or subletting all or part of the Demised Premises.
9.07 Except for any subletting by Tenant to Landlord or its designee
pursuant to the provisions of this Article, each subletting pursuant to this
Article shall be subject to all of the covenants, agreements, terms, provisions
and conditions contained in this lease. Notwithstanding any subletting and/or
acceptance of rent or additional rent by Landlord from any subtenant, Tenant,
except as otherwise expressly provided in Section 9.04 above, shall and will
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remain fully liable for the payment of the fixed rent and additional rent 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 Demised Premises by Tenant, or any person claiming through or under Tenant
(except as provided in Section 9.04), 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, or if
Landlord shall exercise any of its options under Section 9.02, 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.
9.08 With respect to each and every sublease or subletting, whether or
not consent is required under this Article, it is further agreed that:
(a) no subletting shall be for a term ending later than one day
prior to the expiration date of this lease;
(b) no sublease shall be valid, and no subtenant shall take
possession of the Demised Premises or any part thereof, until a true, complete,
fully-executed counterpart of such sublease has been delivered to Landlord; and
(c) each sublease shall provide that it is subject and subordinate
to this lease and to the matters to which this lease is or shall be subordinate,
and that, in the event of termination, re-entry, or dispossess by 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 (i) be liable for
any previous act or omission of Tenant under such sublease, (ii) be subject to
any offset, not expressly provided in such sublease, that theretofore accrued to
such subtenant against Tenant or (iii) 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, in either case not approved by Landlord in
writing, which approval (in the case of a modification) shall not be
unreasonably withheld, conditioned or delayed provided that all of the
applicable terms and conditions with respect to a proposed subletting are
satisfied, as if such modification were a new sublease (e.g., if the proposed
modification did not involve the subletting of additional space then Landlord's
Option would not apply thereto).
9.09 Any assignment or transfer, whether or not Landlord's consent is
required under this Article, 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 satisfactory to Landlord, whereby the assignee
shall assume all of the obligations of this lease on the part of
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Tenant to be performed or observed and whereby the assignee shall agree that the
provisions contained in Section 9.01 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 the fixed rent and
additional rent and for the other obligations of this lease on the part of
Tenant to be performed or observed.
9.10 If Landlord shall give its consent to any assignment of this lease
or to any sublease, Tenant shall in consideration therefor, pay to Landlord, as
additional rent:
(a) in the case of an assignment, an amount equal to 50% of all
sums and other consideration (collectively, the "ASSIGNMENT CONSIDERATION")
payable to Tenant by the assignee for or by reason of such assignment
(including, but not limited to (x) sums payable for the sale of Tenant's
fixtures, leasehold improvements, equipment, furniture, furnishings or other
personal property, less (y) in the case of a sale thereof, the then fair market
value thereof) and less the expenses, to the extent reasonable (such expenses
being hereinafter referred to as the "ASSIGNMENT EXPENSES") paid by Tenant for
alteration costs (or contributions in lieu thereof), advertising, brokerage or
consulting fees or commissions and legal fees in connection with such
assignment; and
(b) in the case of a sublease, an amount equal to 50% of all rents,
additional rents, charges and other consideration (collectively, the "SUBLETTING
CONSIDERATION") payable under the sublease to, or on behalf of, Tenant by, or on
behalf of, the subtenant, to the extent such amounts, in the aggregate, exceed
the fixed rent and additional rent accruing during the term of the sublease in
respect of the subleased space (at the rate per square foot payable by Tenant
hereunder) pursuant to the terms hereof (including, but not limited to (x) sums
payable for the sale or rental of Tenant's fixtures, leasehold improvements,
equipment, furniture or other personal property, less (y) in the case of the
sale thereof, the then fair market value thereof, and in the case of the rental
thereof, the amortization or depreciation deduction taken by Tenant on its
federal income tax return for such fixtures, leasehold improvements, equipment,
furniture, or other personal property that is attributable to the period that
same are so rented, Tenant hereby agreeing that in no event shall the difference
between the amount described in clause (x) and the amount described in clause
(y) be less than zero) and less the expenses, to the extent reasonable (such
expenses being hereinafter referred to as the "SUBLETTING EXPENSES") paid by
Tenant for alteration costs (or contributions in lieu thereof), advertising,
brokerage or consulting fees or commissions, the amount of any rent concessions
or abatements and legal fees in connection with such subletting.
The sums payable under subsection 9.10(a) shall be paid prior to the effective
date of the assignment in question, such payment being a condition precedent to
the effectiveness of Landlord's consent to such assignment, and the sums payable
under subsection 9.10(b) shall be paid to Landlord as and when the Subletting
Consideration is actually (and only to the extent) paid by the subtenant, as the
case may be. Together with Tenant's execution and delivery of such assignment or
sublease, as the case may be, Tenant shall deliver to Landlord a statement of
the
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Assignment Consideration and the Assignment Expenses, or the Subletting
Consideration and the Subletting Expenses, as the case may be, certified as
true, complete and correct by an officer or principal of Tenant. In the event of
any dispute with respect to the Assignment Consideration, the Assignment
Expenses, the Subletting Consideration or the Subletting Expenses, such dispute
shall be determined by arbitration in accordance with the provisions of Article
34 hereof.
9.11 (a) For the purpose of this Article, the following are "PROHIBITED
TRANSFERS" to which Section 9.01 shall apply as if any of such Prohibited
Transfers were an assignment of this lease: The issuance or transfer of
interests in Tenant or any guarantor of Tenant's obligations hereunder (a
"GUARANTOR") (whether stock, partnership interests, interests in a limited
liability company or otherwise) to a person or group of related persons, whether
in a single transaction or a series of related or unrelated transactions, in
such quantities that after such issuance or transfer, control of Tenant or such
Guarantor (as it shall be constituted after giving effect to such issuance or
transfer of interests in Tenant or Guarantor, as the case may be), directly or
indirectly, shall have changed, shall be deemed a Prohibited Transfer unless the
conditions of subsection (b) below are met. Any person or legal representative
of Tenant, to whom Tenant's interest under this lease passes by operation of
law, or otherwise, shall be bound by the provisions of this Article.
(b) Notwithstanding the foregoing, if Tenant or a Guarantor is a
corporation listed and traded on a nationally recognized stock exchange or
over-the-counter market, the transfer, sale or other disposition (including
issuance) of the stock of such corporation shall not be deemed an assignment of
this lease or a Prohibited Transfer. In addition, (i) transfers of the stock of
Tenant ("STOCK TRANSFERS") to a corporation into which or with which Tenant is
merged or consolidated or (ii) an assignment ("RELATED ENTITY ASSIGNMENT") or
sublease ("RELATED ENTITY SUBLEASE") to a Related Entity shall not be a
Prohibited Transfer and shall be permitted without Landlord's consent, provided
that: (A) in the case of a Stock Transfer or a Related Entity Assignment, the
successor to Tenant or assignee, as applicable, has a net worth, computed in
accordance with generally accepted accounting principles, at least equal to
$75,000,000.00; (B) in the case of a Stock Transfer or a Related Entity
Assignment, reasonable proof satisfactory to Landlord of such net worth shall
have been delivered to Landlord at least ten (10) days prior to the effective
date of any such transaction; (C) in the case of a Related Entity Assignment or
a Related Entity Sublease, such books and records of the then Tenant as may be
necessary to establish that any assignee or sublessee claimed by Tenant to be a
Related Entity is in fact a Related Entity shall have been delivered to Landlord
at least ten (10) days prior to the effective date of any such transaction; (D)
the purposes for which such successor to Tenant (in the case of a Stock
Transfer) or such assignee or sublessee (in the case of a Related Entity
Assignment or a Related Entity Sublease) shall use the Demised Premises (or the
applicable portions thereof) are limited to uses expressly permitted by this
lease (subject to all of the terms, covenants, conditions, prohibitions,
restrictions and limitations set forth in this lease); (E) an executed duplicate
original of the assignment and assumption agreement (in the case of a Related
Entity Assignment) or sublease (in the case of a Related Entity Sublease), shall
be delivered to Landlord for review by Landlord and Landlord's counsel, at least
ten (10) days prior to the effective date thereof; (F) Tenant (in the case of a
Stock Transfer or a Related Entity Sublease) or the assignor (in the case of a
Related Entity Assignment) shall and will remain fully liable for the payment of
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the fixed rent and additional rent due and to become due under this lease and
shall not be released from any of its obligations or liabilities under this
lease and Tenant shall be fully responsible and liable for all acts or omissions
of the sublessee (in the case of a Related Entity Sublease) or the assignee (in
the case of a Related Entity Assignment) or anyone claiming under or through
Tenant, or such sublessee or such assignee, as the case may be; and (G) such
assignee or sublessee (in the case of a Related Entity Assignment or a Related
Entity Sublease), as of the effective date of such assignment or the
commencement date of such sublease, as the case may be, and all times
thereafter, is a Related Entity. Simultaneously with the delivery of such
assignment and assumption agreement or sublease, Tenant shall deliver to
Landlord a certified copy of a duly adopted resolution of the board of directors
of both Tenant and the assignee or sublessee, as applicable, authorizing the
execution, acknowledgment and delivery of said assignment and assumption
agreement or sublease, and the transactions contemplated therein. In connection
with the information to be provided to Landlord pursuant to this Section,
Landlord shall have the right, at any reasonable time, and from time to time, to
examine such books and records of the then Tenant as may be necessary to
establish that such assignee or sublessee remains a Related Entity. Landlord's
Option and Section 9.10 above shall not apply to a Stock Transfer, a Related
Entity Assignment or a Related Entity Sublease, provided the conditions set
forth in clause (A) through (G) above are satisfied.
9.12 (a) Landlord's Option and the provisions of Section 9.10(b) (and
any obligation of Tenant to pay to Landlord any Subletting Consideration) shall
not apply to the subletting (an "EXCEPTED SUBLETTING") by Tenant of the first
60,000 rentable square feet of space (in the aggregate) in the Demised Premises
sublet by Tenant (such first 60,000 rentable square feet of space being
hereinafter referred to as the "EXCEPTED SUBLET SPACE"). (For the purposes of
clarification, if Tenant's first sublease is for 40,000 rentable square feet,
and such sublease expires, and Tenant re-sublets 30,000 rentable square feet of
the same 40,000 rentable square foot area, then the re-subletting of 10,000
rentable square of such 30,000 rentable square feet will not qualify as an
Excepted Subletting and such 10,000 rentable square feet will not qualify as
Excepted Sublet Space; however, if Tenant's first sublease is for 20,000
rentable square feet, and such sublease expires, and Tenant re-sublets the same
20,000 rentable square foot area, and such sublease expires, and Tenant
re-sublets again the same 20,000 rentable square foot area, then both of such
re-sublettings will qualify as an Excepted Subletting.) The remaining provisions
of this Article 9 (including, without limitation, Sections 9.02, 9.05, 9.06,
9.07 and 9.08) shall apply to any Excepted Subletting, except that subsections
9.05(c) and (d) shall be deemed modified by inserting immediately before the
word "space" on the third (3rd) lines thereof, the words "for approximately the
same period of the proposed Excepted Subletting" for an Excepted Subletting, the
term of which (including all extensions and renewals thereof that are provided
for in the proposed sublease in respect thereof, regardless of whether or not
the right or the option to so extend or renew is exercised) is two (2) years (or
less).
(b) For the purposes of this Section, a sublease, the term of
which (including all extensions and renewals thereof that are provided for in
the proposed sublease in respect thereof, regardless of whether or not the right
or the option to so extend or renew is exercised) is three (3) years (or less)
and which is to commence prior to the tenth (10th) anniversary of the
Commencement Date is referred to as a "SHORT TERM SUBLEASE." If at any time
after there are Excepted Sublettings for all 60,000 rentable square feet of the
Excepted Sublet Space, the area
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which constitutes the Excepted Sublet Space is less than 60,000 rentable square
feet as a result of one (1) or more of the Excepted Sublettings ending, then
Landlord's Option shall not apply to any Short Term Sublease that is a Small
Sublease (as hereinafter defined), but all other provisions of this Article
(including subsection 9.10(b) and any obligation of Tenant to pay to Landlord
any Subletting Consideration) shall apply to Short Term Subleases that are Small
Subleases. For the purposes of this Section, a "SMALL SUBLEASE" is a sublease of
a portion of the Demised Premises where the aggregate area of the Demised
Premises that is covered by such sublease (including all portions of the Demised
Premises in respect of which the prospective subtenant may sublease pursuant to
any rights or options set forth in such sublease or otherwise, regardless of
whether or not such rights or options are exercised), together with the
aggregate area of the Demised Premises covered by all other subleases (other
than Excepted Sublettings) and other occupancy agreements (i) then in effect
(regardless of whether or not the terms thereof have commenced and regardless of
whether or not such other subleases or other occupancy agreements are Short Term
Subleases) or (ii) for which Tenant is then requesting Landlord's approval or
consent to sublet (including, in the case of clauses (i) and (ii), all portions
of the Demised Premises in respect of which the subtenant or prospective
subtenant, as the case may be, may sublease pursuant to any rights or options
set forth in its sublease or proposed sublease, as the case may be or otherwise,
regardless of whether or not such rights or options are exercised), comprises a
rentable area that is no more than the difference between 60,000 rentable square
feet and the rentable area of the then Excepted Sublet Space.
9.13 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.
9.14 The listing of any name other than that of Tenant, whether on the
doors of the Demised Premises, on the Building directory, if any, or otherwise,
shall not operate to vest any right or interest in this lease or in the Demised
Premises, nor shall it be deemed to be the consent of Landlord to any assignment
or transfer of this lease, to any sublease of the Demised Premises, or to the
use or occupancy thereof by others.
9.15 Landlord hereby consents to a sublease by Tenant to the New York
City Industrial Development Agency (the "IDA") of Tenant's improvements to the
Demised Premises and a sub-sublease by the IDA to Tenant of such Tenant's
improvements, it being understood and agreed that such sublease and sub-sublease
shall be subject and subordinate in all respects to this lease and Landlord's
rights and remedies under this lease.
ARTICLE 10 10
COMPLIANCE WITH LAWS AND REQUIREMENTS OF PUBLIC AUTHORITIES
10.01 Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law and/or requirement of public authority, and
Tenant, at its expense, shall comply with all laws and/or requirements of public
authorities which shall, with respect to the
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Demised Premises or the use and occupation thereof, or the abatement of any
nuisance, impose any violation, order or duty on Landlord or Tenant, arising
from (i) Tenant's use of the Demised Premises, except for the mere occupancy of
the Demised Premises for purposes expressly set forth in Section 2.01(a) hereof,
(ii) the manner of conduct of Tenant's business or operation of its
installations, equipment or other property therein, (iii) any cause or condition
created by or at the instance of Tenant, other than by Landlord's performance of
any work for or on behalf of Tenant, or (iv) breach of any of Tenant's
obligations hereunder. However, Tenant shall not be so required to make any
structural or other substantial change in the Demised Premises unless the
requirement arises from Tenant's manner of use of the Demised Premises (as
distinguished from the mere use thereof for the purposes expressly permitted
pursuant to subsection 2.01(a) above) or from a cause or condition referred to
in clause (ii), (iii) or (iv) above. Furthermore, Tenant need not comply with
any such law and/or requirement of public authority so long as Tenant shall be
contesting the validity thereof, or the applicability thereof to the Demised
Premises, in accordance with Section 10.02. Landlord, at its expense, shall
comply with all other such laws and requirements of public authorities as shall
affect the Demised Premises, but may similarly contest the same subject to
conditions reciprocal to Subsections (a), (b) and (d) of Section 10.02.
10.02 Tenant may, at its expense (and if necessary, in the name of but
without expense to Landlord) contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any law or requirement of public authority, and Landlord shall
cooperate with Tenant in such proceedings, provided that:
(a) Landlord shall not be subject to criminal penalty or to
prosecution for a crime nor shall the Demised Premises or any part thereof be
subject to being condemned or vacated, by reason of non-compliance or otherwise
by reason of such contest;
(b) Tenant shall defend, indemnify and hold harmless Landlord
against all liability, loss or damage which Landlord shall suffer by reason of
such non-compliance or contest, including reasonable attorney's fees and other
expenses reasonably incurred by Landlord;
(c) such non-compliance or contest shall not constitute or result
in any violation of any superior lease or superior mortgage, or if such superior
lease and/or superior mortgage shall permit such non-compliance or contest on
condition of the taking of action or furnishing of security by Landlord, such
action shall be taken and such security shall be furnished at the expense of
Tenant; and
(d) Tenant shall keep Landlord advised as to the status of such
proceedings.
Without limiting the application of Subsection (a) above thereto, Landlord shall
be deemed subject to prosecution for a crime within the meaning of said
Subsection, if Landlord, or any officer of Landlord individually, is charged
with a crime of any kind or degree whatever, whether by service of a summons or
otherwise, unless such charge is withdrawn before Landlord or such officer (as
the case may be) is required to plead or answer thereto.
10.03 Tenant shall not cause or permit "HAZARDOUS MATERIALS" (as defined
below) to be used, transported, stored, released, handled, produced or installed
in, on or from the Demised
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Premises or the Building, except that Tenant may use and store limited
quantities of substances reasonably necessary in the ordinary operation and
maintenance of office equipment, provided such substances are used and stored
within the Demised Premises, in accordance with all applicable laws and/or
requirements of public authorities. The term "HAZARDOUS MATERIALS" shall, for
the purposes hereof, mean any flammable, explosive or radioactive materials,
hazardous wastes, hazardous and toxic substances or related materials, asbestos
or any material containing asbestos, or any other substance or material, as now
or hereafter defined as a hazardous material or a hazardous substance by any
federal, state or local law, ordinance, rule or regulation, now or at any time
hereafter in effect, including, without limitation, the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, the
Hazardous Materials Transportation Act, as amended, the Resource Conservation
and Recovery Act, as amended, and in the regulations adopted and publications
promulgated pursuant to each of the foregoing. In the event of a breach of the
provisions of this Article, Landlord shall, in addition to all of its rights and
remedies under this lease and pursuant to law, require Tenant to remove any or
all of such Hazardous Materials from the Demised Premises or the Building in the
manner prescribed for such removal by all requirements of law. The provisions of
this Article shall survive the expiration or sooner termination of this lease.
10.04 Notwithstanding anything to the contrary contained in this lease,
Tenant agrees that, except to the extent expressly a part of Landlord's Work or
Post-Commencement Landlord's Work, it shall be solely responsible, at its
expense, to cause the Demised Premises (including the lavatories within the
Demised Premises and all entrances and exits to and from the Demised Premises)
to be, and to remain throughout the term hereof, in compliance with the
provisions of the Americans With Disabilities Act of 1990 and any municipal
laws, ordinances and rules of like import, and any regulations adopted and
amendments promulgated pursuant to any of the foregoing (hereinafter referred to
collectively as the "ADA"), and Landlord shall have no obligation whatsoever in
connection therewith, except as otherwise expressly required in Exhibit G
hereto. Within ten (10) days after receipt, Tenant shall advise Landlord in
writing, and provide Landlord with copies of, any notices alleging violations of
the ADA relating to any portion of the Demised Premises; any claims made or
threatened in writing regarding non-compliance with the ADA and relating to any
portion of the Demised Premises; or any governmental or regulatory actions or
investigations instituted or threatened regarding non-compliance with the ADA
and relating to any portion of the Demised Premises. In addition, without
Landlord's prior written consent in each instance, no portion of the Demised
Premises shall be used in any manner, and no Changes shall be performed, if such
manner of use or such Changes requires that any alterations, changes, additions,
improvements or other work be performed or made to any portions of the Building
(outside the Demised Premises, except to the extent any of the foregoing is (or
will be) performed as a part of the Base Building Work) or the Land, which
consent may be withheld by Landlord in its sole and absolute discretion. If
Landlord gives its consent for such manner of use or Changes, then, Landlord, at
Tenant's sole cost and expense, shall perform or make such alterations, changes,
additions, improvements or other work, and Tenant shall pay to Landlord as
additional rent the cost and expense incurred or paid by Landlord to perform or
make same, within ten (10) days after Landlord's demand therefor, which demand
shall be accompanied by a reasonably detailed statement of the alterations,
changes, additions, improvements or other work so performed or made and the cost
and expense incurred or paid by
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Landlord. Nothing in this Section shall affect or reduce Landlord's obligations
under Sections 4.08 and 4.09 above.
10.05 Notwithstanding anything to the contrary contained in this lease,
Tenant agrees, at its sole cost and expense, to (a) install the Class E fire
safety system within the Demised Premises (the "CLASS E SYSTEM"), (b) connect
same to the Building's Class E fire safety system, and (c) thereafter maintain
the Class E System within the Demised Premises in compliance with all laws or
requirements of public authorities, provided that any reprogramming of the
Building's Class E fire safety system as a result of such installation and
connection shall be performed by Landlord at its cost and expense. Landlord
shall have no obligation whatsoever in connection with any Tenant caused Class E
compliance or otherwise in connection with the Class E System within the Demised
Premises. Landlord's Class E system contractor for the Building shall provide
the necessary service to repair and maintain Tenant's Class E system in the
Demised Premises and Tenant shall pay to Landlord, within fifteen (15) days
after Landlord's written demand as additional rent, the reasonable monthly cost
(based on Landlord's actual cost, without "mark-up") of providing such service
to the Demised Premises.
ARTICLE 11 11
INSURANCE
11.01 Tenant shall not violate, or permit the violation of, any
condition imposed by the standard fire insurance policy then issued for office
buildings in the Borough of Manhattan, City of New York, and shall not do,
permit anything to be done, keep, or permit anything to be kept, in the Demised
Premises which would (a) subject Landlord to any liability or responsibility for
personal injury, death or property damage; (b) increase the fire or other
casualty insurance rate on the Building or the property therein over the rate
which would otherwise then be in effect (unless Tenant pays the resulting
premium as provided in Section 11.04); or (c) result in insurance companies of
good standing refusing to insure the Building or any of such property in amounts
reasonably satisfactory to Landlord.
11.02 Tenant covenants to provide on or before the earlier to occur of
(i) the Commencement Date and (ii) ten (10) days from the date of this lease and
to keep in force during the term hereof the following insurance coverage which
coverage shall be effective on the Commencement Date:
(a) Commercial general liability insurance, with broad form
endorsement, containing an omnibus named insured provision naming as additional
insureds Landlord, Max Capital Management Corp., 1440 Broadway Partners Corp.,
and Morgan Guaranty Trust Company of New York (collectively, the "PRESENT
ADDITIONAL INSUREDS"), and the holders of all superior mortgages, the lessors
under all superior leases, Landlord's agents and all other persons and entities
designated by Landlord (but only to the extent that Landlord specifically
requests such holders, lessors, agents and other persons and entities to be so
named) and protecting Landlord, Tenant, all of Tenant's subtenants, and all such
other additional insureds, against (i) all claims, demands or actions for injury
to, or death of, persons or property, arising from, related to, or in any way
connected with the use or occupancy of the Demised Premises, or caused by
actions or omissions to act of Tenant, its agents, servants and contractors, or
of any person or
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entity claiming by, through or under Tenant, and (ii) all accidents occurring in
or about the Demised Premises. Such policy shall have limits of liability of not
less than $5,000,000.00 combined single limit coverage on a per occurrence
basis, including property damage, no more than $2,000,000.00 of which may be
covered under a so-called "umbrella" insurance policy. Such policy shall contain
a contractual liability coverage endorsement with respect to Tenant's
indemnification obligations under this lease, and shall include independent
contractors' coverage. Such insurance may be carried under a blanket policy
covering the Demised Premises and other locations of Tenant, if any, provided
such policy contains an endorsement (i) naming Landlord (and the above-mentioned
other persons and entities) as additional insureds, (ii) specifically
referencing the Demised Premises, and (iii) guaranteeing a minimum limit
available for the Demised Premises equal to the limits of liability required
under this lease;
(b) Worker's compensation, and, if required by applicable law,
disability and such other similar insurance, in statutory amounts, covering all
persons that are performing Changes (as hereinafter defined), or with respect to
whom death or bodily injury claims could be asserted against Landlord, the Land
or the Building, and endorsed to waive subrogation claims in favor of Landlord,
and each of the Present Additional Insureds and all other additional insureds
requested by Landlord; and
(c) property insurance coverage against all risk of loss or damage
from any cause whatsoever in an amount adequate to cover the cost of replacement
of all of personal property, fixtures, furniture, furnishings, valuable papers
and documents, data, leasehold improvements and equipment, including Tenant's
Work, Tenant's Property and all Changes, located in the Demised Premises.
All such policies shall be issued by companies of recognized responsibility
licensed to do business in New York State and rated by Best's Insurance Reports
or any successor publication of comparable standing and carrying a rating of A-
VIII or better or the then equivalent of such rating, and all such policies
shall contain a provision whereby the same cannot be cancelled or modified
unless Landlord and any additional insureds are given at least thirty (30) days
prior written notice of such cancellation or modification.
Prior to the time such insurance is first required to be carried by
Tenant and thereafter, at least fifteen (15) days prior to the expiration of any
such policies, Tenant shall deliver to Landlord either duplicate originals of
the aforesaid policies or certificates evidencing such insurance naming
Landlord, each Present Additional Insured and all other additional insureds
requested by Landlord as additional insureds, together with evidence of payment
for the policy. Such certificates shall also verify the primary nature of the
coverage and note the waiver of subrogation in favor of Landlord and each
Present Additional Insureds all other additional insureds requested by Landlord.
If Tenant delivers certificates as aforesaid, Tenant upon reasonable prior
notice from Landlord, shall make available to Landlord, at the Demised Premises,
duplicate originals of such policies from which Landlord may make copies
thereof, at Landlord's cost. 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. In addition in the event Tenant fails to
provide and keep in force the insurance required by this lease, at the times and
for
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the durations specified in this lease, Landlord shall have the right, but not
the obligation, at any time and from time to time, and without notice, to
procure such insurance and or pay the premiums for such insurance in which event
Tenant shall repay Landlord within five (5) days after demand by Landlord, as
additional rent, all sums so paid by Landlord and any costs or expenses incurred
by Landlord in connection therewith without prejudice to any other rights and
remedies of Landlord under this lease.
11.03 (a) Landlord and Tenant shall each secure an appropriate clause
in, or an endorsement upon, each property coverage policy obtained by it and
covering the Building, the Demised Premises, Tenant's Work, Tenant's Property
and Changes (as hereinafter defined) or the personal property, fixtures,
furnishings, valuable papers and documents, data, leasehold improvements and
equipment located therein or thereon, pursuant to which the respective insurance
companies waive subrogation or permit the insured, prior to any loss, to agree
with a third party to waive any claim it might have against said third party.
The waiver of subrogation or permission for waiver of any claim hereinbefore
referred to shall extend to the agents of each party and its employees and, in
the case of Tenant, shall also extend to all other persons and entities
occupying or using the Demised Premises. If and to the extent that such waiver
or permission can be obtained only upon payment of an additional charge then,
the party benefiting from the waiver or permission shall pay such charge within
fifteen (15) days after demand therefor, or shall be deemed to have agreed that
the party obtaining the insurance coverage in question shall be free of any
further obligations under the provisions hereof relating to such waiver or
permission. Tenant shall provide Landlord with a certificate of insurance
verifying this waiver in favor of Landlord, and each Present Additional insureds
all other additional insureds requested by Landlord, and their respective
employees and agents. Subject to the foregoing provisions of this Section 11.03
and to the provisions of subsections 11.03(b) and (c) below, and insofar as may
be permitted by the terms of the insurance policies carried by it, each party
and their respective employees and agents hereby releases the other with respect
to any claim (including a claim for negligence) which it might otherwise have
against the other party for loss, damages or destruction with respect to its
property by fire or other casualty (including rental value or business
interruption, as the case may be) occurring during the term of this lease or
during the move into and out of the Demised Premises.
(b) In the event that Tenant shall be unable at any time to obtain
one of the provisions referred to in subsection (a) above, in any of its
insurance policies, Tenant shall cause Landlord to be named in such policy or
policies as one of the additional insureds, but if any additional premium shall
be imposed for the inclusion of Landlord as such an additional insureds,
Landlord shall pay such additional premium upon demand or Tenant shall be
excused from its obligations under subsection (b) with respect to the insurance
policy or policies for which such additional premiums would be imposed. In the
event that Landlord shall have been named as one of the additional insureds in
any of Tenant's policies in accordance with the foregoing, Landlord shall
endorse promptly to the order of Tenant, without recourse, any check, draft, or
order for the payment of money representing the proceeds of any such policy, or
any other payment growing out of or connected with said policy, and Landlord
hereby irrevocably waives any and all rights in and to such proceeds and
payments.
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(c) In the event that Landlord shall be unable at any time to
obtain one of the provisions referred to in subsection (a) in any of its
insurance policies, Landlord shall, at Tenant's option, cause Tenant to be named
in such policy or policies as one of the additional insureds, but if any
additional premium shall be imposed for the inclusion of Tenant as such an
additional insureds, Tenant shall pay such additional premium upon demand. In
the event that Tenant shall have been named as one of the additional insureds in
any of Landlord's policies in accordance with the foregoing, Tenant shall
endorse promptly to the order of Landlord, without recourse, any check, draft,
or order for the payment of money representing the proceeds of any such policy,
or any other payment growing out of or connected with said policy, and Tenant
hereby irrevocably waives any and all rights in and to such proceeds and
payments.
11.04 If, by reason of a failure of Tenant to comply with the provisions
of Section 10.01 or Section 11.01, the rate of fire insurance with extended
coverage on the Building or equipment or other property of Landlord shall be
higher than it otherwise would be, Tenant shall reimburse Landlord, on demand,
for that part of the premiums for fire insurance and extended coverage paid by
Landlord because of such failure on the part of Tenant.
11.05 Landlord may, from time to time (but no more than five (5) times
during the initial term or two (2) times during any Extension Term (as
hereinafter defined), require that the amount of the insurance to be provided
and maintained by Tenant under Section 11.02 hereof be increased so that the
amount thereof adequately protects Landlord's interest but in no event in excess
of the amount that would be required by other tenants occupying similarly sized
space in first-class office buildings in the borough of Manhattan for office
use.
11.06 If any dispute shall arise between Landlord and Tenant with
respect to the incurring or the amount of any additional insurance premium
referred to in Section 11.03 or the increase in amount of insurance referred to
in Section 11.05, the dispute shall be determined by arbitration.
11.07 A schedule or make up of rates for the Building or the Demised
Premises, as the case may be, issued by the New York Fire Insurance Rating
Organization or other similar body making rates for fire insurance and extended
coverage for the premises concerned, shall be conclusive evidence of the facts
therein stated and of the several items and charges in the fire insurance rate
with extended coverage then applicable to such premises.
11.08 Each policy evidencing the insurance to be carried by Tenant under
this lease shall contain a clause that such policy and the coverage evidenced
thereby shall be primary with respect to any policies carried by Landlord, and
that any coverage carried by Landlord shall be excess insurance.
11.09 Landlord's sole obligation and liability with respect to
maintaining insurance coverage on or with respect to the Demised Premises or the
Building shall be to procure and maintain (a) comprehensive fire and extended
coverage insurance on the Building (exclusive of foundations and footings and
exclusive of Changes and the leasehold improvements made to the Building by
Tenant or the other tenants of the Building) on an "all-risk" full cost
replacement basis, and (b) comprehensive general liability insurance in such
form and amounts that are
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carried by prudent owners of buildings in New York City that are comparable to
the Building. Such insurance may be carried under a blanket policy covering the
Building and other locations of Landlord (or Landlord's affiliates), if any,
provided such coverage is separately provided for the Building.
ARTICLE 12
RULES AND REGULATIONS
12.01 Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations annexed hereto as Exhibit D, and such
reasonable changes therein (whether by modification, elimination or addition) as
Landlord at any time or times hereafter may make and communicate in writing to
Tenant, which do not unreasonably affect the conduct of Tenant's business in the
Demised Premises except as required by any laws and/or requirements of public
authorities or any requirements of insurance bodies; provided, however, that in
case of any conflict or inconsistency between the provisions of this lease and
any of the Rules and Regulations as originally promulgated or as changed, the
provisions of this lease shall control.
12.02 Nothing in this lease contained shall be construed to impose upon
Landlord any duty or obligation to Tenant to enforce the Rules and Regulations
or the terms, covenants or conditions in any other lease, as against any other
tenant, and Landlord shall not be liable to Tenant for violation of the same by
any other tenant or its employees, agents or visitors. However, Landlord shall
not enforce any of the Rules and Regulations in such manner as to discriminate
against Tenant or anyone claiming under or through Tenant.
ARTICLE 13
TENANT'S CHANGES
13.01 Tenant shall make no changes in or to the Demised Premises of any
nature without Landlord's prior written consent in each instance, except as
otherwise expressly permitted in this Article.
13.02 (a) With Landlord's prior written consent in each instance, which
consent shall not be unreasonably withheld, conditioned or delayed, Tenant may,
from time to time during the term of this lease, at its sole expense, make such
alterations, additions, installations, substitutions, improvements and
decorations (hereinafter collectively called "NONSTRUCTURAL CHANGES") in and to
the interior of the Demised Premises that are not structural in nature, that do
not result in, or require, an amendment to, or modification of, the certificate
of occupancy for the Building, and that do not otherwise affect the structural
parts or integrity of the Building and do not affect the proper functioning of
any of the Building's utilities, systems or services, as Tenant may reasonably
consider necessary for the conduct of its business therein, on the following
conditions:
(i) neither the outside appearance nor the strength of the
Building or any of its structural parts shall be affected;
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(ii) no part of the Building outside of the Demised Premises
shall be physically affected; and
(iii) the proper functioning of any of the mechanical,
electrical, sanitary and other service systems of the Building shall not be
adversely affected, and the usage of such systems by Tenant shall not be
increased in excess of that permitted under this lease.
(b) For the purposes of this Article, a "DECORATIVE CHANGE" shall
mean a Nonstructural Change that is entirely decorative in nature, does not
require the approval of any governmental or quasi-governmental authority and
conforms to the then design criteria of the Building (as established from time
to time by Landlord), and a "PERMITTED NONSTRUCTURAL CHANGE" shall mean a
Nonstructural Change that conforms to the then design criteria of the Building
(as established from time to time by Landlord) and does not require the approval
of any governmental or quasi-governmental authority, the cost of which, together
with the cost of all other Changes (other than Decorative Changes) that have not
been completed and fully paid for, is not more than $500,000.00 during the First
Rent Period, $550,000.00 during the Second Rent Period and $610,000.00 during
the Third Rent Period. Notwithstanding the foregoing, to the extent that adding
or replacing any cabling within the Demised Premises is otherwise a Permitted
Nonstructural Change, the cost thereof shall not be considered in the
limitations described in the preceding sentence. Landlord's approval shall be
deemed given for all Decorative Changes and Permitted Nonstructural Changes,
provided that (i) same are performed in accordance with, and subject to, this
Article and all other applicable provisions of this lease, and (ii) at least ten
(10) days prior to commencing any such Decorative Change or Permitted
Nonstructural Change, Tenant gives to Landlord a notice of Tenant's intention to
perform such Decorative Change(s) or Permitted Nonstructural Change(s), which
notice, to be effective, shall be accompanied by a reasonably detailed
description of the Decorative Change(s) or Permitted Nonstructural Change(s)
that Tenant intends to perform, the estimated commencement date and completion
date of such Decorative Change(s) or Permitted Nonstructural Change(s), and the
estimated cost thereof.
(c) For the purposes of this Article and Article 14 below, the
installation of a so-called UPS system shall be deemed a Nonstructural Change,
but not a Permitted Structural Change, and the UPS system itself shall be deemed
a Specialty Installation (as such term is defined and used in Article 14 below).
13.03 Tenant shall not make any alterations, additions, installations,
substitutions, improvements or decorations (hereinafter collectively referred to
as "STRUCTURAL CHANGES") (i) outside the Demised Premises; (ii) in or to the
exterior of the Demised Premises; (iii) in or to the interior Demised Premises
that are structural in nature or that otherwise affect the structural integrity
or parts of the Building or that affect the proper functioning of any of the
Building's utilities, systems or services, or (iv) which result in, or require,
an amendment to, or modification of, the certificate of occupancy for the
Building, without Landlord's prior written approval in each instance, which
approval may be withheld by Landlord in its absolute and sole discretion.
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13.04 Nonstructural Changes and/or Structural Changes (collectively,
"CHANGES") shall only be performed in accordance with and subject to, this
Article and the other applicable provisions of this lease.
13.05 Before commencing any Change (except for, subject to the
provisions of subsection 13.02(b) above, Decorative Changes and Permitted
Nonstructural Changes), Tenant shall advise Landlord thereof and shall submit to
Landlord proof reasonably satisfactory to Landlord of the total cost thereof
(including so-called "soft costs"), and, at its sole cost and expense, shall
prepare and submit to Landlord for Landlord's approval, reasonably detailed
plans and specifications therefor (such reasonably detailed plans and
specifications being herein referred to as "TENANT'S PLANS"), which approval
shall not be unreasonably withheld, conditioned or delayed for any Nonstructural
Changes described therein. Other than for Tenant's Work, the actual cost and
expense reasonably incurred and/or paid by Landlord in connection with the
review of the Tenant's Plans (and all revisions thereto), and the inspection of
the work in respect thereof, by Landlord and Landlord's architects, engineers
and other consultants and professionals shall be reimbursed by Tenant to
Landlord (as additional rent) within fifteen (15) days after Landlord's demand
therefor, Tenant hereby agreeing that neither Landlord's approval of the
Tenant's Plans (or any revisions thereto), nor its inspection of such work, nor
its right to inspect such work, shall impose upon Landlord any obligation or
liability whatsoever with respect thereto, including, without limitation, any
obligation or liability that might arise as a result of such work not being
performed in accordance with applicable laws and requirements or with the
Tenant's Plans (and revisions thereto) approved by Landlord or otherwise. The
review or approval by Landlord of any Tenant's Plans or any revisions thereto is
solely for Landlord's benefit, and is without any representation or warranty
whatsoever with respect to the adequacy, correctness or efficiency thereof or
otherwise. Neither the granting by Landlord of its approval of any Tenant's
Plans or any revisions thereto, nor Landlord's execution of any of the
applications referred to in Section 13.06 below, shall in any manner constitute
or be deemed to constitute a judgment or acknowledgment by Landlord as to their
legality or compliance with laws and/or requirements of public authorities.
Landlord may, as a condition of its approval, require Tenant to make revisions
in and to the plans and specifications and, except for Tenant's Work and for any
Changes made after Tenant's Work the cost of which, together with the cost of
all other Changes that have not been completed and fully paid for, is not more
than $500,000.00 during the First Rent Period, $550,000.00 during the Second
Rent Period and $610,000.00 during the Third Rent Period, to post a bond or
other security reasonably satisfactory to Landlord to insure the completion and
payment of the Change in question. Landlord shall respond, in reasonable detail,
to Tenant's request to approve Tenant's Plans within ten (10) business days
after Landlord receives a complete set of Tenant's Plans, and Landlord shall
respond, in reasonable detail, to Tenant's request to approve revisions to
Tenant's Plans within seven (7) business days after Landlord receives such
revisions. Except for an approval which is deemed given by Landlord under this
Section, Landlord's approval to any Tenant's Plans or revisions thereto shall
not be effective unless same is in writing. If within seven (7) business days
after Landlord receives a complete set of the Tenant's Plans (or if within seven
(7) business days after Landlord receives any requested revisions thereto),
Landlord fails to respond to Tenant's request for Landlord's approval thereof
(whether by granting or denying such approval or by requesting revisions or
further revisions), Tenant shall give to Landlord a second (2nd) notice
notifying Landlord that if
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within three (3) business days after Landlord's receipt of such second (2nd)
notice Landlord fails to respond to Tenant's request for such approval, such
failure shall be deemed the granting of such approval. Thereafter, if Landlord
fails to respond to Tenant's request for such approval within such three (3)
business day period (whether by granting or denying such approval or by
requesting revisions or further revisions to the Tenant's Plans), such approval
shall be deemed given, but only to the Tenant's Plans (or revisions) so
submitted. Tenant shall not use, employ or retain any contractor, construction
manager or mechanic, or permit the use, employment or retention of any
subcontractor, that has not been first approved by Landlord, which approval
shall not be unreasonably withheld or delayed. In selecting a general contractor
or construction manager, Tenant shall allow a general contractor or construction
manager selected by Landlord to bid on the job but nothing herein shall be
deemed to require Tenant to select such general contractor or construction
manager. Notwithstanding the foregoing, for all Changes (including all Tenant's
Work) involving electrical equipment or wiring (other than Tenant's computer
cabling and telecommunications wiring within the Demised Premises), heating,
ventilation and/or air-conditioning systems or equipment, plumbing equipment or
systems or Class E (or other fire and life safety) equipment or systems, Tenant
may only use contractors and subcontractors designated by Landlord, provided
that such contractors and subcontractors designated by Landlord are competitive
in price with comparable contractors and subcontractors for comparable work in
similar buildings in midtown Manhattan. As of the date of this lease, the
contractors and subcontractors listed on Exhibit J hereto are approved for the
corresponding trades set forth on said Exhibit, both for Changes and for the
Installation (as defined in Article 41 below). Landlord may remove any
contractor or subcontractor from such list at any time or from time to time, but
only in good faith and for cause.
13.06 Before commencing any Change, Tenant shall, at its expense, obtain
all permits, notices, approvals and certificates required by all governmental
and quasi-governmental authorities for the commencement and prosecution of such
Changes, and, upon completion, for the final approval of such Changes, and shall
cause Tenant's Changes to be performed in compliance therewith, as well as with
all applicable laws and/or requirements of public authorities and all applicable
requirements of insurance bodies, 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 Building. To the extent any such permits, notices,
approvals or certificates cannot be obtained unless Landlord has executed the
application therefor, Landlord, at no cost to Landlord, shall execute such
applications within five (5) days after Tenant's request therefor, provided that
no Event of Default exists and that all Tenant's Plans and revisions thereto
have been approved by Landlord. Duplicates of all such permits, notices,
approvals and certificates shall be delivered to Landlord before commencing such
Changes, and upon the completion thereof, as the case may be. Changes shall be
performed in such a manner as not to unreasonably interfere with or delay, and
(unless Tenant shall indemnify Landlord therefor to the Landlord's reasonable
satisfaction) as not to impose any additional expense upon Landlord in, the
maintenance or operation of the Building or any part thereof. Throughout the
performance of all Changes, Tenant shall, at its expense, carry, or cause to be
carried, worker's compensation insurance in statutory limits and general
liability insurance and personal and property damage insurance for any
occurrence in or about the Building as set forth in Article 11 of this lease.
All such insurance policies shall name Landlord and its agents, as parties
insured, be in such limits
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and be placed with insurers as provided in Article 11 above. Tenant shall
furnish Landlord with satisfactory evidence that such insurance is in effect
before the commencement of any Changes and, on request, at reasonable intervals
thereafter during the continuance of the Changes. If any Changes shall involve
the removal of any fixtures, equipment, or other property in the Demised
Premises (other than Tenant's Property), such fixtures, equipment, or other
property shall be promptly replaced, at Tenant's expense, with new fixtures,
equipment, or other property (as the case may be) of like utility and at least
equal value (taking into account that technology may have reduced the value of
such items from the time same were first installed in the Demised Premises)
unless Landlord shall otherwise expressly consent in writing, and Tenant shall,
upon Landlord's request, deliver to Landlord any such fixtures, equipment, or
property so removed. Any such fixtures, equipment so removed that Landlord does
not request to be delivered to Landlord shall be discarded and removed from the
Building by Tenant at Tenant's sole cost and expense. Promptly after the
substantial completion of each Change, and to the extent customarily prepared
therefor or required by applicable laws and/or requirements of public
authorities, Tenant, at its sole cost and expense, shall have prepared and
delivered to Landlord, as-built drawings, and copies of balancing reports,
operating manuals, maintenance logs, warranties and guaranties, sign-offs and
inspection reports with respect to the Changes in question.
13.07 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, the Changes that shall be issued by the Department
of Buildings or any other public or quasi-public authority having or asserting
jurisdiction. Tenant shall defend, indemnify and save Landlord harmless from and
against all mechanic's and other liens filed in connection with the Changes or
for any other work claimed to have been done for, or materials furnished to,
Tenant, whether or not done or furnished pursuant to this Article, including,
without limitation, the liens of any security interest in, conditional sales of,
or chattel mortgages upon, any materials, fixtures or articles so installed in
and constituting part of the Demised Premises, and against all costs, expenses
and liabilities incurred or paid 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 satisfy or discharge (by bonding
or otherwise) all such liens, and remove same from the record, within thirty
(30) days after Landlord makes written demand therefor. Nothing in this Section
shall prevent Tenant from granting a security interest or chattel mortgage in
any of Tenant's Property, provided that at no time shall any such security
interest or chattel mortgage encumber or otherwise affect Landlord, any estate
or interest in the Land or the Building (or any portions thereof or any interest
therein).
13.08 (a) No Change shall be done in a manner that would: (i) create any
work stoppage, picketing, labor disruption, or dispute; (ii) violate Landlord's
union contracts affecting the Land and/or Building; or (iii) interfere with the
business of Landlord or any tenant or occupant of the Building. 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 Article or any other
provision of this lease, 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,
at law or equity, and shall have the right to injunction without notice.
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(b) Tenant shall make all arrangements for, and pay all expenses
incurred in connection with, use of the freight elevators servicing the Demised
Premises. Landlord agrees that during the Freight Elevator Hours (as hereinafter
defined) on business days there shall be no charge for Tenant's normal use of
the freight elevator servicing the Demised Premises. However, Tenant
acknowledges that (x) Tenant's use of such freight elevator is non-exclusive and
subject to scheduling by Landlord, (y) if Tenant's use of such freight elevator
for transporting materials, supplies, equipment, machinery, furniture or
furnishings will, in Landlord's reasonable opinion, disrupt the operation of the
Building (including the normal use of the freight elevators) or cannot be
scheduled during the Freight Elevator Hours, then Tenant will only be permitted
to use such freight elevator during certain times other than during the Freight
Elevator Hours on business days, in which event Tenant shall be obligated to pay
for such usage at Landlord's then established rates, and (z) that there may be
times when minimum usage of the freight elevator is required, such as on weekend
days. Landlord agrees to use reasonable efforts to accommodate Tenant's freight
elevator and loading dock scheduling requirements for Tenant's initial Tenant
Work, subject to the foregoing provisions of this Section 13.05. Notwithstanding
the foregoing, provided no Event of Default exists, Tenant shall not be charged
for the use of such freight elevator to the extent such use is in connection
with the performance of Tenant's Work, and to the extent the Tenant's Work is
performed through the period ending on the date which is six (6) months after
the Commencement Date, with respect to the Phase I Portion; six (6) months after
the Vacant Phase II Effective Date, with respect to the Vacant Phase II Portion;
six (6) months after the Phase II Effective Date, with respect to the balance of
the Phase II Portion; six (6) months after the Vacant Phase III Effective Date,
with respect to the Vacant Phase III Portion; six (6) months after the Phase III
Effective Date, with respect to the balance of the Phase III Portion; six (6)
months after the Phase IV Effective Date, with respect to the Phase IV Portion;
and six (6) months after the Offer Space Lease Commencement Date (as hereinafter
defined), with respect to the corresponding Offer Space (as hereinafter
defined).
13.09 Notwithstanding anything to the contrary contained in this Article,
Tenant, at its sole cost and expense, but only with Landlord's prior written
approval (which approval shall not be unreasonably withheld, conditioned or
delayed) and only after consulting with Landlord, may perform cosmetic and
decorative Changes to the exterior portion of the Building immediately outside
the windows of the Demised Premises facing the courtyard of the Building so as
to improve and "enhance" the look of such exterior portions of the Building.
ARTICLE 14
TENANT'S PROPERTY
14.01 All fixtures, equipment, improvements and appurtenances attached
to or built into the Demised Premises at the commencement of or during the term
of this lease, whether or not by or at the expense of Tenant, shall be and
remain a part of the Demised Premises, shall be deemed the property of Landlord
and shall not be removed by Tenant, except as hereinafter in this Article
expressly provided.
14.02 All paneling, movable partitions, lighting fixtures, special
cabinet work, other business and trade fixtures, machinery and equipment,
communications equipment and office equipment, whether or not attached to or
built into the Demised Premises, which are installed in
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the Demised Premises by or for the account of Tenant, without expense to
Landlord, and can be removed without permanent structural damage to the
Building, and all furniture, furnishings and other articles of movable personal
property owned by Tenant and located in the Demised Premises, (all of which are
sometimes referred to as "TENANT'S PROPERTY") shall be and shall remain the
property of Tenant and may be removed by it at any time during the term of this
lease; provided that if any of Tenant's Property is removed, Tenant or any party
or person entitled to remove same shall repair or pay the cost of repairing any
damage to the Demised Premises or to the Building resulting from such removal.
Any equipment or other property for which Landlord shall have granted any
allowance or credit to Tenant or which has replaced such items originally
provided by Landlord at Landlord's expense shall not be deemed to have been
installed by or for the account of Tenant, without expense to Landlord, and
shall not be considered Tenant's Property. Anything contained in this Section
14.02 and in Section 14.03 below to the contrary, Tenant shall not be required
to replace any lighting fixtures installed by Tenant, or to repair minor holes
in the walls of the Demised Premises caused by the removal of such lighting
fixtures, or to re-sheetrock or re-paint or perform similar repairwork that may
be necessitated by the removal by Tenant of Tenant's Property, except to the
extent that any of the damage caused by such removal is extensive or excessive.
14.03 At or before the Expiration Date, or the date of any earlier
termination of this lease, or as promptly as practicable after such an earlier
termination date, Tenant at its expense, shall remove from the Demised Premises
all of Tenant's Property which is not attached to, or built into, the Demised
Premises except such items thereof as Tenant shall have expressly agreed in
writing with Landlord were to remain and to become the property of Landlord,
and, except as otherwise expressly set forth in this lease, shall fully repair
any damage to the Demised Premises or the Building resulting from such removal.
Tenant's obligation herein shall survive the termination of the lease.
14.04 Any other items of Tenant's Property (except money, securities and
other like valuables) which shall remain in the Demised Premises after the
Expiration Date or after a period of fifteen (15) days following an earlier
termination date, may, at the option of Landlord, be deemed to have been
abandoned, and in such case either may be retained by Landlord as its property
or may be disposed of, without accountability, at Tenant's expense in such
manner as Landlord may see fit.
14.05 (a) For purposes of this lease, "SPECIALTY INSTALLATION(S)"
shall mean installations consisting of kitchens (but not pantry areas), raised
computers floors, satellite dishes and antennas, fire suppression systems,
vaults, internal staircases, dumbwaiters, pneumatic tubes, vertical and
horizontal transportation systems and other installations of similar character
or nature that are above and beyond standard or typical office installations.
Unless otherwise expressly advised in writing by Landlord to the contrary, on or
before the Expiration Date or sooner termination of this lease, Tenant shall, at
its sole cost and expense, remove all Specialty Installation(s) from the Demised
Premises and restore all slab and wall penetrations to the condition that
existed prior to such penetrations (such removal and repair work being
hereinafter referred to as the "RESTORATION WORK").
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(b) Tenant's obligation and liability with respect to the removal
of Specialty Installation(s) and the performance of the Restoration Work shall
survive the Expiration Date (as same may be extended) or sooner expiration or
termination of this lease.
(c) n no event shall Tenant be obligated to remove or restore any
installations to the extent that same are typical or standard office
installations, notwithstanding anything to the contrary contained in Section
14.06 below.
14.06 Notwithstanding anything contained in this Article to the contrary,
except for Specialty Installations, for any Change (including Tenant's Work) for
which Tenant's Plans are submitted to Landlord for Landlord's approval, if
Landlord approves the Change and the Tenant's Plans in question, and together
with such approval Landlord notifies Tenant that Tenant will be required at the
end of the term of this lease to remove a particular installation or improvement
described in such Tenant's Plans, then Tenant shall remove such installation or
improvement on or prior to the last day of the term of this lease and (except as
otherwise expressly set forth in this lease) restore all damage to the Demised
Premises and the Building caused by such removal.
ARTICLE 15
REPAIRS AND MAINTENANCE
15.01 Tenant shall take good care of the Demised Premises. Tenant shall
promptly, at its sole cost and expense, make all nonstructural repairs to the
Demised Premises and the fixtures, equipment and appurtenances therein,
including all Building systems and equipment therein to the extent same
exclusively serve the Demised Premises or which have been installed or
materially modified in any way by or on behalf of Tenant, as and when needed to
preserve the Demised Premises (and all such fixtures, equipment and
appurtenances) in good working order and condition, except for reasonable wear
and tear. In addition, but subject to the provisions of Section 11.03 above,
Tenant, at its expense, shall promptly make all repairs, ordinary or
extraordinary, interior or exterior, structural or otherwise, in and about the
Demised Premises and the Building, as shall be required by reason of (i) the
performance or existence of Tenant's Work or Tenant's Changes, (ii) the
installation, use or operation of Tenant's Property in the Demised Premises,
(iii) the moving of Tenant's Property in or out of the Building, (iv) the
negligence or willful act of Tenant or any of its employees, agents or
contractors or (v) the use of any portion of the Demised Premises for a use that
is not permitted under this lease. Notwithstanding the foregoing, to the extent
that Tenant is obligated to perform any structural repairs to any portion of the
Demised Premises or other portion of the Building (including the Terrace Area
(as defined in Article 41 below) or is obligated to perform any repairs outside
of the Demised Premises, Landlord, at its election, may perform such repairs on
Tenant's behalf, in which event, Tenant shall reimburse Landlord for the actual
costs paid or incurred by Landlord to perform such repairs within fifteen (15)
days after Landlord's request therefor, which request shall be accompanied by a
reasonably detailed description of the repairs in question and the costs
thereof. Except if required by the negligence or other fault of Landlord or its
employees, agents or contractors, but subject to the provisions of Section 11.03
above and Landlord's obligation to perform the Window Work, Tenant, at its
expense, shall replace all materially damaged glass in or about the Demised
Premises and shall be responsible for all repairs, maintenance and replacement
of interior doors and wall and floor coverings in the Demised Premises and, for
the
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repair and maintenance of all lighting fixtures therein. All repairs made by
Tenant shall be made in accordance with Article 13 of this lease, as if such
repairs were a Change, subject to Landlord's right to make such repairs on
behalf of Tenant, as more particularly provided above.
15.02 Landlord, at its expense, shall keep and maintain the Building and
its systems and facilities serving the Demised Premises, including (subject to
the provisions of Section 15.01 above) the Building HV systems (as defined in
Section 17.02 below), provided same have not been modified by Tenant, and the
public and common areas thereof in good working order, condition and repair,
consistent with other first-class office buildings in the vicinity of the
Building which are approximately the same size and same age as the Building.
15.03 Except as may otherwise be expressly provided in this lease,
Landlord shall have no liability to Tenant by reason of any inconvenience,
annoyance, interruption or injury to business arising from Landlord, Tenant or
others making or failing to make any repairs or changes which, with respect to
Landlord, Landlord is required or permitted by this lease, or required by law to
make, in or to any portion of the Building or the Demised Premises, or in or to
the fixtures, equipment or appurtenances of the Building or the Demised
Premises, provided that Landlord shall use due diligence in making any repairs
and shall perform such repair work, except in case of emergency, at times
reasonably convenient to Tenant and otherwise in such manner as will not
materially interfere with Tenant's use of the Demised Premises; provided,
however, the foregoing shall not require Landlord to perform any such repairs or
changes on an overtime or premium time basis except in the case of an Abatement
Event or, in Landlord's reasonable determination, actually threatens the health
and safety of the occupants of the Demised Premises.
ARTICLE 16
ELECTRICITY
16.01 Subject to the terms of Section 16.09 below of this Article,
Landlord shall furnish electrical service, on a demand load basis, of seven (7)
watts per rentable square foot of the Demised Premises at the electrical
closet(s) serving the Demised Premises, for use in the Demised Premises, other
than for the operation of the Building HVAC systems (as hereinafter defined).
16.02 (a) For purposes of this Article:
(i) "USAGE" shall mean actual usage of electricity in the
Demised Premises as measured by the submeters to be installed by Landlord
pursuant to Exhibit G hereto for each calendar month or such other period as
Landlord shall determine during the term of this lease and shall include the
quantity and peak demand (kilowatt hours and kilowatts);
(ii) "LANDLORD'S RATE" shall mean Landlord's average cost per
kilowatt and average cost per kilowatt hour (including, in both cases, all
applicable taxes, surcharges, demand charges, energy charges, fuel adjustment
charges, time of day charges and other charges, adjustments and sums payable in
respect thereof) of purchasing electric current for the Building from the
company supplying electric current to the Building;
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(iii) "BASIC COST" shall mean the product of (a) Usage
multiplied by (b) the Landlord's Rate for the period that corresponds to the
period during which Usage was measured.
(iv) "TENANT'S COST" shall mean an amount equal to the sum of
(a) the Basic Cost plus (b) three (3%) percent of the Basic Cost for Landlord's
overhead and expenses in connection with submetering.
(b) Landlord shall, at Landlord's sole cost and expense, install one
or more meters and other necessary equipment to measure the amount of Usage.
Where more than one meter measures the amount of Usage, Usage through each meter
shall be totalized and billed conjunctively in accordance with the provisions of
this Article 16.
16.03 Landlord shall, from time to time but not more often than monthly,
furnish Tenant with an invoice indicating the period during which the Usage was
measured and the amount of Tenant's Cost payable by Tenant to Landlord for such
period. Within fifteen (15) days after receipt of each such invoice, Tenant
shall pay the amount of Tenant's Cost set forth thereon to Landlord as
additional rent. In addition, if any tax is imposed upon Landlord by any
municipal, state or federal agency or subdivision with respect to the purchase,
sale or resale of electrical energy supplied to Tenant hereunder, Tenant agrees
that to the extent permitted by law, such taxes shall be passed on to Tenant and
included in the bill to, and paid by, Tenant to Landlord, as additional rent.
16.04 Tenant hereby acknowledges that Landlord has made no
representation or warranty as to whether or not the electrical service described
in subsections (i) and (iii) above is or will be sufficient or adequate for
Tenant's electrical needs from time to time during the term of this lease. In
addition, Landlord shall not in any wise be liable or responsible to Tenant for
any loss, damage, or expense that Tenant may sustain or incur if either the
quantity or character of electrical service is changed, is no longer available,
or is unsuitable for Tenant's requirements, except to the extent that such
change, unavailability or unsuitability is due to the intentionally wrongful
acts or gross negligence of Landlord or its employees or agents.
16.05 In no event shall Tenant use or install any fixtures, equipment or
machines the use of which in conjunction with other fixtures, equipment and
machines in the Demised Premises would result in an overload of the electrical
circuits servicing the Demised Premises, provided that the electrical service
provided to the Demised Premises is no less than the service described in
Section 16.01 above.
16.06 (a) Tenant covenants and agrees that, at all times, its use of
electric current shall never exceed the capacity of the feeders to the Building
or the risers or wiring installation thereof, which shall not be less than the
capacity necessary to furnish the electric service described in Section 16.01
above. In connection therewith, Tenant expressly agrees that all installations,
alterations and additions of and to the electrical distribution system within
the Demised Premises shall be subject to Landlord's prior written approval in
each instance (which approval shall not be unreasonably withheld, conditioned or
delayed), and, if such approval shall be given, rigid conduit for risers only
shall be permitted. If, in connection with any request for
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such approval, Landlord shall, in its sole judgment, determine that additional
risers, feeders, wiring installation or other equipment are required, Landlord
shall, at the sole cost and expense of Tenant, install such additional risers,
feeders, wiring installations and other equipment that Landlord shall deem
necessary with respect thereto, provided, however, that, if Landlord shall
determine, in its sole judgment, that the same will cause permanent damage or
injury to the Building or to the Demised Premises, cause or create a dangerous
or hazardous condition, entail excessive or unreasonable alterations, repairs,
or expense, materially interfere with, or materially disturb, the other tenants
or occupants of the Building, or adversely affect Landlord's ability to supply
or furnish electricity to other portions of the Building at any time during the
term of this lease, then Landlord shall not be obligated to make such
installation, and Tenant shall not make the installation, alteration, or
addition to the electrical distribution system within the Demised Premises with
respect to which Tenant requested Landlord's approval. All of the aforesaid
costs and expenses are chargeable and collectible as additional rent, and shall
be paid by Tenant to Landlord within fifteen (15) days after rendition of any
bill or statement to Tenant therefor.
(b) Tenant shall furnish, install and replace, as required, all
lighting tubes, lamps, bulbs and ballasts required in the Demised Premises, at
Tenant's sole cost and expense. Subject to Tenant's rights under Section 14.02
above, all lighting tubes, lamps, bulbs and ballasts so installed shall become
Landlord's property upon the expiration or sooner termination of this lease.
Additionally, all fixtures, if same do not conform to the description set forth
hereafter, shall be lamped and ballasted (or relamped and reballasted)
throughout the Demised Premises by Tenant at its expense as follows: T8 energy
saving fluorescent lamps, ballasted with energy saving electronic type ballasts,
and incandescent fixtures shall be lamped with ER50W and ER75W type lamps.
16.07 In the event the meter(s) installed in the Demised Premises for
the measurement of electricity consumption in the Demised Premises or any
alternative submetering system installed by Landlord at a later date, becomes
prohibited (by applicable laws and/or requirements of public authorities) from
use, then Landlord, at its expense, may cause an independent electrical engineer
chosen by Landlord or an electrical consulting firm selected by Landlord
(hereinafter referred to as the "ELECTRICAL CONSULTANT") to survey and determine
Usage in, and Basic Cost for, the Demised Premises from time to time, at least
once per twelve (12) month period, and the Electrical Consultant shall make such
determination using criteria generally accepted in the Metropolitan New York
City area and Landlord's Rate in effect at the time, and shall include the
quantity and peak demand, for all electricity consumed by Tenant, plus three
(3%) percent of the Basic Cost for Landlord's expenses and administration fees.
The determination made by the Electrical Consultant shall be binding on both
Landlord and Tenant and such amount shall be deemed Tenant's Cost.
16.08 Notwithstanding anything in Section 16.07 to the contrary, Tenant
shall have the right as hereinafter provided, to contest any amounts determined
by the Electrical Consultant pursuant to Section 16.07 as shall be due to
Landlord as a result of any such survey. In the event that Tenant fails to send
a written notice (hereinafter referred to as an "OBJECTION NOTICE") to Landlord
within forty-five (45) days after the date of the Electrical Consultant's notice
containing said Usage and Basic Cost, such notice shall become conclusive and
binding upon Tenant. If Tenant disputes any such notice by sending an Objection
Notice within the time and in the
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manner hereinbefore provided, then Tenant shall, at its sole cost and expense,
have the right to engage an electrical engineer or electrical consulting firm
(hereinafter referred to as "TENANT'S Consultant") who shall promptly make a
survey (hereinafter referred to as the "DISPUTING SURVEY") indicating Tenant's
electrical usage in the Demised Premises. In the event that Landlord and Tenant
are unable to agree on the amount of Usage and Basic Cost within thirty (30)
days after the date Tenant furnishes Landlord with a copy of the Disputing
Survey, then the Electrical Consultant and Tenant's Consultant shall select a
mutually acceptable electrical engineer or electrical consulting firm
(hereinafter referred to as the "THIRD CONSULTANT") within ten (10) days after
the expiration of such thirty (30) day period. The Electrical Consultant and
Tenant's Consultant shall submit the dispute to the Third Consultant and the
determination by the Third Consultant shall be conclusive and binding upon
Landlord and Tenant, except that the Third Consultant's determination shall not
be less than or greater than the determinations of the Electrical Consultant and
Tenant's Consultant. During the pendency of any such dispute, Tenant shall pay
to Landlord the amount set forth in the Electrical Consultant's notice until the
dispute is finally determined in accordance with the provisions of this Section
and, in the event that such final determination is less than the amount set
forth in the Electrical Consultant's notice, Landlord shall, at Tenant's
election, refund to Tenant the amount of such excess payment or credit any such
excess against any amounts then due or becoming due to Landlord under this
lease. The cost of the Third Consultant shall be borne equally by Landlord and
Tenant.
16.09 Provided that it is physically possible for Tenant to receive the
electric service described in Section 16.01 above directly from one or more of
the companies or providers then serving the area in which the Building is
located, Landlord may discontinue the aforesaid service upon thirty (30) days'
notice to Tenant without being liable to Tenant therefor and without in any way
affecting this lease or the liability of Tenant hereunder, and the same shall
not be deemed to be a lessening or diminution of services within the meaning of
any law, rule, or regulation now or hereafter enacted, promulgated, or issued.
In the event that Landlord gives such notice of discontinuance, Landlord shall
permit Tenant to receive such service directly from one of such companies or
providers and shall permit Landlord's wires and conduits, to the extent safely
capable, to be used for such purpose. Any additional wires, conduits, or other
equipment necessary and proper in connection therewith shall be installed by
Landlord in accordance with the terms of, and subject to the conditions
contained in this Article. In the event that Landlord exercises its rights under
this Section 16.09, then: (a) Tenant shall contract for such electrical service
directly with the said company or provider for all of Tenant's electric current
requirements and (b) Landlord shall have no obligation to furnish electric
current to Tenant or the Demised Premises. Provided Tenant is diligently and in
good faith arranging to obtain electricity directly from said company or
provider, Landlord may not discontinue the electric service to the Demised
Premises until Tenant is able to contract directly for, and actually receive,
such electric service. All meters and all additional panel boards, feeders,
risers, wiring and other conductors and equipment which may be required to
obtain electricity, of substantially the same quantity, quality and character as
Landlord is obligated to furnish under Section 16.01, shall be installed by
Landlord: (1) at Landlord's expense, if Landlord shall have discontinued
furnishing electricity to the Demised Premises voluntarily, or (2) at Tenant's
expense, if Landlord shall have been compelled to discontinue furnishing
electricity to the Demised Premises by reason of any act or omission of Tenant
(other than the mere use of the Demised Premises for the purposes expressly
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permitted pursuant to subsection 2.01(a) above), or (3) at the equal expense of
Landlord and Tenant if such discontinuance shall have been by compulsion of law
or of any rule or regulation and not by reason of any act or omission of Tenant
(other than the mere use of the Demised Premises for the purposes expressly
permitted pursuant to subsection 2.01(a) above).
16.10 To assist Tenant in obtaining the benefits of Con Edison's Business
Incentive Rate for its electricity consumption at the Demised Premises, Landlord
shall execute the Business Incentive Rate Application (Riders F & J), a copy of
which is annexed hereto as Exhibit C. To the extent that Landlord shall receive
any reduction in the cost of electricity as a result thereof, the Basic Cost
shall be adjusted so that Tenant shall receive such reduction on a
dollar-for-dollar basis with the reduction received by Landlord.
ARTICLE 17
HEAT, VENTILATING AND AIR-CONDITIONING
17.01 For the purposes of this lease:
(a) "HEATING SEASON" shall mean October 15 through April 15;
(b) "BUSINESS DAYS" shall mean Mondays through Fridays, except such
days as are observed by the State or Federal government as legal holidays and
those days designated as holidays by the applicable building service union
employees contract (all of such holidays being hereinafter referred to as
"HOLIDAYS");
(c) "REGULAR HOURS" shall mean the hours between 8:00 A.M. and 8:00
P.M. on business days, and, with respect to heating service (as such term is
hereinafter defined) only, between the hours between 9:00 A.M. and 1:00 P.M. on
Saturdays, except for Saturdays that are Holidays; and
(d) "AFTER HOURS" shall mean, with respect to heating service, any
time other than regular hours during the Heating Season.
17.02 In accordance with, and subject to, the provisions of this Article,
Landlord shall furnish heat to the Demised Premises (the "HEATING SERVICE")
through the perimeter units presently located in the Demised Premises. The
systems through which Landlord so supplies the heating service to the Demised
Premises are herein referred to as the "BUILDING HV SYSTEMS."
17.03 At no additional cost to Tenant, but subject to energy conservation
requirements of governmental authorities, Landlord shall furnish adequate
heating service during regular hours during the Heating Season. If Tenant shall
require after hours heating service during the Heating Season, Landlord shall
furnish such after hours heating service but for such after hours heating
service on business days only, upon at least four (4) hours prior notice on such
business day, and for such after hours heating service on a day other than a
business day, only upon notice given not less than four (4) hours before the end
of regular hours on the immediately preceding business day, and at Landlord's
then prevailing hourly charges for providing such service, which shall be paid
by Tenant within fifteen (15) days after written demand as additional rent. As
of
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the date of this lease, the after hours heating service is $250 per hour. In the
event that such after hours heating service is requested and shared by Tenant
and other tenants, the cost thereof shall be prorated, on a rentable square foot
basis among all tenants who have requested and who are sharing such after hours
heating service. Notwithstanding anything contained in this lease which may be
deemed to the contrary, Landlord shall have no obligation to furnish after hours
heating service other than during the Heating Season.
17.04 Use of the Demised Premises, or any part thereof, in a manner
exceeding the design conditions (including occupancy and connected electrical
load) specified for the Building's HV systems or rearrangement of partitioning
which interferes with normal operation of the heating service in the Demised
Premises, may require changes in the Building's HV Systems. Such changes, so
occasioned, shall be made by Tenant, at its expense, subject to Landlord's prior
written approval of such changes, which approval may be withheld for any reason.
Tenant shall not make any change, alteration, addition or substitution to the
Building's HV systems without Landlord's prior written approval, which may be
withheld for any reason. Tenant shall keep or cause to be kept closed all
windows in the Demised Premises whenever the heating service is being provided.
In addition, Tenant agrees at all times to cooperate fully with Landlord and to
abide by all reasonable regulations and requirements which Landlord may
prescribe for the proper functioning and protection of the Building's HV
systems.
17.05 (a) (i) As part of Landlord's Work, Landlord is furnishing and
installing air-cooled air-conditioning units, including fans, blowers, chilling
equipment and thermostatic controls (collectively, the "AC UNITS"), as more
particularly described in Exhibit G hereto. As part of Tenant's Work, Tenant, at
Tenant's sole cost and expense, shall furnish, design, install and distribute
(all within the Demised Premises) the ductwork and any other facilities,
equipment and machinery required by Tenant to operate the AC Units
(collectively, "TENANT'S AC EQUIPMENT") related to the AC Units, from the
mechanical room in which the AC Units are installed by Landlord and shall, in
connection with such distribution, furnish, design, install, distribute and
locate Tenant's AC Equipment in accordance with the reasonable engineering,
design and locational requirements of Landlord, if any. All Tenant's AC
Equipment shall be installed by Tenant at its sole cost and expense and in
accordance with, and subject to, the applicable provisions of this lease, and
shall be located solely within the Demised Premises, except with the prior
written consent of Landlord (which consent shall not be unreasonably withheld,
conditioned or delayed), Tenant may connect the Tenant's AC Equipment on one (1)
floor of the Demised Premises to another floor of the Demised Premises, provided
that such floors are contiguous. In connection with such connection, Tenant
shall not drill through the floor slabs of the Demised Premises without
Landlord's prior written consent in each instance, which consent shall not be
unreasonably withheld, conditioned or delayed and shall be subject to the
provisions of Section 14.05 above, Tenant hereby agreeing that it shall be
reasonable for Landlord to withhold such consent if such connection can
reasonably be made without drilling through the floor slabs of the Demised
Premises.
(ii) In addition to the AC Units, Tenant, at Tenant's expense,
may furnish and install additional air-cooled air-conditioning units
(collectively, the "SUPPLEMENTAL UNITS") in the Demised Premises, to provide
supplemental air-conditioning to the Demised
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Premises. If Tenant so installs the Supplemental Units, Tenant, at Tenant's sole
cost and expense, shall furnish, design, install and distribute (all within the
Demised Premises) the ductwork, fans, blowers, chilling equipment, thermostatic
controls and other facilities, equipment and machinery (collectively, "TENANT'S
SUPPLEMENTAL AC EQUIPMENT") related to the Supplemental Units, and shall, in
connection with such distribution, furnish, design, install, distribute and
locate Tenant's Supplemental AC Equipment in accordance with the reasonable
engineering, design and locational requirements of Landlord, if any. The
Supplemental Units and all Tenant's Supplemental AC Equipment shall be installed
by Tenant at its sole cost and expense and in accordance with, and subject to,
the applicable provisions of this lease, and shall be located solely within the
Demised Premises, except as otherwise expressly permitted in the last sentence
of subsection (i) above. For the purposes of this lease, AC Units shall include
all Supplemental Units (if any) and Tenant's AC Equipment shall include all
Tenant's Supplemental AC Equipment (if any).
(iii) The louvers and the location thereof, to be used in
connection with the AC Units shall be designated by Landlord.
(b) Tenant shall, at its expense, properly and continuously maintain,
repair and cause any and all replacements of the AC Units and all Tenant's AC
Equipment. To the extent assignable, Landlord shall assign to Tenant all
manufacturer's warranties and guaranties issued for the AC Units (other than the
Supplemental Units). Tenant's obligation to maintain the AC Units and the
Tenant's AC Equipment shall include, but not be limited to, the periodic
cleaning and/or replacement of filters, replacement of fuses and belts, the
calibration of thermostats and all startup and shut down maintenance of the AC
Units and all Tenant's AC Equipment. Such maintenance obligations shall be
performed throughout the term of this lease, on Tenant's behalf, by a reputable
air-conditioning maintenance company engaged by Tenant at its expense. In the
event Tenant shall fail to engage an air-conditioning maintenance company as
aforesaid, then, notwithstanding anything contained in this lease which may be
deemed to the contrary, and in addition to all of Landlord's other rights and
remedies, Landlord may (but shall not be obligated to) perform such maintenance
and/or engage a competitively priced air-conditioning service company at
Tenant's expense to perform the aforesaid maintenance to the AC Units and
Tenant's AC Equipment, and Tenant shall pay as additional rent hereunder, within
fifteen (15) days after Landlord's demand therefor, all expenses incurred by
Landlord in connection therewith, which demand shall be accompanied by
reasonable substantiating evidence of such expenses. Landlord may exercise the
rights expressly provided for in the preceding sentence only after giving Tenant
notice of such failure and such failure continuing for ten (10) days after such
notice is given to Tenant, which ten (10) day period may be shortened, and which
notice requirement shall not be required, if an emergency condition exists and
under the circumstances the giving of such notice and/or waiting ten (10) days
is unreasonable. Landlord shall have the right, but not the obligation, at its
expense, to monitor and/or supervise the maintenance and repair of the AC Units
and the Tenant's AC Equipment, and Tenant shall, at its expense, follow all
reasonable instructions of Landlord relating to such maintenance and repair.
Tenant shall surrender the AC Units, Tenant's AC Equipment and all repairs,
additions and replacements thereto and thereof to Landlord in good working order
and condition on the expiration or sooner termination of this lease.
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(c) All electricity used in connection with the operation of the AC
Units and all Tenant's AC Equipment shall be measured by the metering system
described in Article 16 hereof and shall be supplied with electricity in
accordance with, and subject to, all of the terms, covenants and conditions
contained in said Article 16. The AC Units and all Tenant's AC Equipment shall
be operated by Tenant at Tenant's sole cost and expense. Tenant shall control
the hours of operation of the AC Units, however, Tenant, immediately upon
Landlord's request in the case of an emergency and upon prior reasonable (oral
or written) notice in all other cases, shall stop service of the AC Units and
the Tenant's AC Equipment when necessary, by reason of accident or emergency or
when necessary to maintain, or make repairs to, the Building or any of the
Building's systems. Tenant shall operate the AC Units and the Tenant's AC
Equipment in compliance with all applicable laws, orders and regulations,
including, but not limited to, the New York State Energy Conservation Code, as
the same may be from time to time amended. Tenant shall indemnify and save
Landlord harmless from and against all costs, expenses, fines, penalties,
liabilities and damages which may be imposed upon Landlord by reason of Tenant's
(or its contractors, subtenants, licensees, agents, servants, invitees or
visitors) failure to comply with the provisions of the preceding two sentences.
17.06 In no event may any window air-conditioning units be installed,
maintained or operated in any portion of the Demised Premises.
ARTICLE 18 18
LANDLORD'S OTHER SERVICES; YEAR 2000
18.01 Landlord shall provide public elevator service, passenger and
freight, by elevators serving the floor on which the Demised Premises are
situated during regular hours of business days with respect to the passenger
elevators, and during the hours (the "FREIGHT ELEVATOR HOURS") of 8:00 A.M. and
5:00 P.M. (excluding a one (1) hour lunch break) on business days with respect
to the freight elevator, and shall have at least two (2) passenger elevator
subject to call at all other times. Tenant acknowledges that Tenant's use of
such freight elevator is non-exclusive and subject to scheduling by Landlord.
Subject to the applicable provisions of this lease, at all times during the term
of this lease the Phase I Portion, the Phase II Portion, the Phase III Portion
and the Phase IV Portion shall be served by the same elevator bank.
18.02 Landlord shall cause the Demised Premises to be cleaned in
accordance with the cleaning specifications annexed hereto as EXHIBIT F. Tenant
shall pay to Landlord within fifteen (15) days after Landlord's demand the costs
incurred by Landlord for (a) extra cleaning work in the Demised Premises
required because of (i) misuse or neglect on the part of Tenant or its employees
or visitors, (ii) use of portions of the Demised Premises for preparation,
serving or consumption of food or beverages, data processing or reproducing
operations (in excess of customary office usage), private lavatories or toilets
or other special purposes requiring greater or more difficult cleaning work than
office areas, (iii) unusual quantity of interior glass surfaces, (iv)
non-building standard materials or finishes installed by Tenant or at its
request, (b) the cleaning work described in Schedule 1 to Exhibit F, and (c) the
removal from the Demised Premises and the Building of any refuse and rubbish of
Tenant in excess of that ordinarily accumulated daily in the routine of business
office occupancy. Landlord, its cleaning contractor
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and their employees shall have after hours access to the Demised Premises and
the free use of light, power and water in the Demised Premises as reasonably
required for the purpose of cleaning the Demised Premises in accordance with
Landlord's obligations hereunder.
18.03 Landlord shall furnish adequate domestic hot and cold water to the
floor(s) on which the Demised Premises are located through the existing wet
columns, for drinking, pantry, lavatory, make-up humidification and cleaning
purposes. If Tenant uses water for any other purpose Landlord, at Tenant's
expense, may install meters to measure only Tenant's consumption of water for
such other purposes, as the case may be, including the showers described in
subsection 2.01(b) above. Tenant shall pay for the quantities of cold water and
hot water shown on such meters, at Landlord's cost thereof, within fifteen (15)
days of the rendition of Landlord's bills therefor.
18.04 Landlord, at its expense, shall maintain the listing on the
Building directory of the names of Tenant and its permitted assignees and
sublessees, and the names of any of their respective officers and employees,
provided that the names so listed shall not (for so long as such directory shall
be a directory containing fixed lettering) take up more than Tenant's
Proportionate Share of the number of lines on the Building directory. In the
event Tenant shall require additional listing on the Building directory,
Landlord shall, to the extent space for such additional listing is available,
maintain such listings and Tenant shall pay to Landlord the then Building
standard charge for each such additional listing or any substitute listings. If
Landlord installs a computerized directory for general use, Tenant may have
Tenant's Proportionate Share of the listings thereon, at no charge.
18.05 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, air conditioning, electric, sanitary, elevator, or
other building systems serving the Demised 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 which 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. Landlord
shall take reasonable steps to minimize any inconvenience to Tenant in
connection with such stoppage; provided, however, the foregoing shall not
require Landlord to perform any such repairs or changes on an overtime or
premium time basis except in the case of an Abatement Event or, in Landlord's
reasonable determination, actually threatens the health and safety of the
occupants of the Demised Premises.
18.06 Landlord agrees to use commercially reasonable efforts to: (a)
investigate with its management and vendors the ability of the computer time
clocks and software which operate and/or control the Building equipment and
tenant billings to continue to operate without unreasonable interruption or
disruption after December 31, 1999 (the "MILLENNIUM Assessment"); and (b)
undertake commercially reasonable measures to fully address all potential
problems identified by the Millennium Assessment so as to avoid, unreasonable
interruption and/or disruption to the operation of the Building equipment and
tenant billings. Tenant and Landlord acknowledge that, notwithstanding
Landlord's commercially reasonable efforts to
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prevent the same, problems may occur in connection with the operation of the
Building's equipment and systems as a result of the Millennium Assessment and
that such problems, if any, will not excuse Tenant from fulfilling its duties
and obligations under this Lease, render Landlord liable for damages of any type
or nature or be considered a Landlord default hereunder.
18.07 (a) If (i) Landlord fails to provide any service or make any
repair which Landlord is expressly obligated to furnish or make under this lease
(other than whenever and for so long as may be necessary, by reason of
accidents, emergencies, strikes; or the making of or performing any repairs,
alterations, improvements, additions or changes which Landlord is required to
make or perform under this lease or by applicable laws and/or requirements of
public authorities or requirements of insurance bodies, now or hereafter in
effect, or which in good faith Landlord deems necessary; or 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) (such failure being hereinafter referred to as an "ABATEMENT EVENT"),
and such Abatement Event renders untenantable at least ten (10%) percent of the
rentable area of the Demised Premises (excluding any portion of the Demised
Premises that (I) is then vacant or (II) is occupied by any person or entity
(other than the named Tenant) that is obligated to continue to pay its rent or
other use or occupancy fees to Tenant regardless of the occurrence of the
Abatement Event (such portion(s) of the Demised Premises being hereinafter
referred to as the "EXCLUDED PORTIONS")) (Landlord and Tenant hereby agreeing
that the Demised Premises (or the applicable portion thereof) shall be deemed
untenantable if the Abatement Event reasonably prevents Tenant from using the
Demised Premises for the uses expressly permitted in this lease); (ii) Landlord
receives notice from Tenant of the Abatement Event and of the fact that Tenant
is prevented from, and has actually ceased, so using at least ten (10%) percent
of the rentable area of the Demised Premises (excluding any Excluded Portions)
and has actually vacated at least ten (10%) percent of the rentable area of the
Demised Premises (excluding any Excluded Portions) and of the specific portions
of the Demised Premises that Tenant is prevented from, and has actually ceased,
so using and has vacated (such notice being hereinafter referred to as the
"UNTENANTABILITY NOTICE"); (iii) for at least ten (10) consecutive business days
after Landlord's receipt of the Untenantability Notice, and as a result of the
Abatement Event, Tenant actually ceases using, and continues not to use, and has
vacated, such specific portions of the Demised Premises and such specific
portions comprise at least ten (10%) percent of the rentable area of the Demised
Premises and do not include any Excluded Portions; (iv) the Abatement Event is
not the result of any act or omission of Tenant, or Tenant's employees, agents,
contractors or invitees, or of any person or entity claiming by, through or
under any of the foregoing; and (v)no Event of Default shall then exist, then,
as Tenant's sole right and remedy, the rents payable by Tenant under this lease
shall be reduced as provided in subsection (b) below. The Untenantability
Notice, to be effective, shall specify (in reasonable detail) the portion(s) of
the Demised Premises (excluding any rentable area of any Excluded Portions)
which is/are untenantable as a result of the Abatement Event and the manner and
respects in which such portion is untenantable. Notwithstanding anything in this
Article which may be deemed to the contrary, in determining which portions of
the Demised Premises are untenantable, Excluded Portions shall not be
considered, except that the Excluded Portions shall be included in determining
the total rentable area of the Demised Premises for the purposes of determining
the fraction of the total rentable area of the Demised Premises that is
untenantable. Notwithstanding anything contained in this
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subsection (a) or in subsection (b) below to the contrary, the words "for at
least ten (10) consecutive business days after Landlord's receipt of the
Untenantability Notice, and" shall be deemed omitted from clause (iii) above for
an Abatement Event which results from the following situations, and for each of
such Abatement Events which result from the following situations (each such
situation being herein referred to as a "10 DAY EXCEPTION"), the words "which is
the eleventh (11th) consecutive business day after Landlord's receipt of the
Untenantability Notice" shall be deemed omitted from subsection (b) below and
replaced with the words "which is the date on which Landlord receives the
Untenantability Notice":
1. If Landlord fails to provide the heating service to the Demised
Premises (or any portion thereof), but only with respect to the first time that
Landlord is obligated to provide heating service to the Demised Premises (so
that if Tenant first occupies the Demised Premises prior to the first (1st) day
of a Heating Season and Landlord fails to provide heating service to the Demised
Premises (or any portion thereof) the first time heating service is required,
then the 10 Day Exception shall apply; but if Landlord provides heating service
to the Demised Premises the first time heating service is required (E.G., on
October 23), but on January 5 of the same Heating Season the heating service is
interrupted, the 10 Day Exception would not apply;
2. If Landlord fails to furnish the electric service required under
Section 16.01 above as a result of Landlord's failure to substantially complete
the Post-Commencement Landlord's Work described in Paragraph 1 of Part II of
Exhibit G below; and
3. If Tenant cannot occupy for the conduct of its business any portion
of the Demised Premises as a result of Landlord's failure to substantially
complete the Post-Commencement Landlord's Work described in Paragraph 4 of Part
II of Exhibit G below,
it being understood and agreed that the foregoing situations shall only result
in a 10 Day Exception and that all of the other conditions to the reduction of
rent provided for in subsection (b) below shall apply to said situations, except
that for situations 1 and 2 above, the phrase "actually ceases using, and
continues not to use, and has vacated," as such phrase is used in clause (iii)
above and as such phrase (or words similar to such phrase) is used in other
provisions of this Section, shall be deemed to include, in the alternative, a
requirement, condition or event, as the case may be, that the portion of the
Demised Premises is not used, and continues not to be used, since Tenant may not
have initially occupied the portion of the Demised Premises in question at the
time of the Abatement Event and, therefore, cannot "cease" using same.
(b) Provided that the conditions described in clauses (i) through
(v) of subsection (a) above have been satisfied, during the period (the
"ABATEMENT PERIOD") commencing on the date (the "ABATEMENT COMMENCEMENT DATE")
which is the eleventh (11th) consecutive business day after Landlord's receipt
of the Untenantability Notice, and ending on the last day that the Demised
Premises (or the applicable portion thereof) is untenantable as a result of the
Abatement Event (such last day being hereinafter referred to as the "ABATEMENT
EXPIRATION Date"), the fixed rent, Tax Payment and Operating Expense Payment
payable by Tenant under this lease that are attributable to the Abatement Period
shall be reduced by an amount (the "ABATEMENT AMOUNT") equal to (i) the annual
fixed rent, Tax Payment and the
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Operating Expense Payment, per rentable square foot, payable during, or
attributable to, the Abatement Period, divided by (ii) 365, and multiplied by
(iii) the number of days during the Abatement Period, and multiplied further by
(iv) the rentable area of the portion of the Demised Premises that is so
untenantable (as such area may change from time to time), excluding the rentable
area of any Excluded Portions. Notwithstanding anything contained in this
Article to the contrary, the Abatement Period shall end with respect to the
portion(s) of the Demised Premises in question, and the Abatement Expiration
Date shall be deemed to have occurred with respect to such portions, on the date
that either Tenant, or any person or entity claiming by, through or under Tenant
resumes using or occupying such portion(s) of the Demised Premises for any
reason (other than for inspection purposes, but including the performance of any
Changes), or on the date that the continuation of the untenantability results
from any act or omission of Tenant, or Tenant's employees, agents, contractors
or invitees, of any person or entity claiming by, through or under any of the
foregoing. In addition, and notwithstanding anything contained in this Article
to the contrary, the Abatement Period shall end for all portions of the Demised
Premises, and the Abatement Expiration Date shall be deemed to have occurred for
all portions of the Demised Premises, on the date that an Event of Default
occurs (the ending of the Abatement Period and the occurrence of the Abatement
Expiration Date, being in addition to all of Landlord's other rights and
remedies in respect of such default).
(c) Notwithstanding anything contained in this Article to the
contrary, the provisions of Article 22 of this lease shall supercede this
Article and shall govern, if the Abatement Event results from a fire or other
casualty. If it is not clear whether or not an Abatement Event results from a
fire or other casualty as opposed to any other cause, then the presumption shall
be that the Abatement Event resulted from a fire or other casualty.
(d) Notwithstanding anything contained in subsection (a) above to
the contrary, if within five (5) business days after Tenant gives the
Untenantability Notice to Landlord, Landlord notifies Tenant that Landlord
disputes Tenant's contention that at least ten (10%) percent of the rentable
area of the Demised Premises is untenantable, or that such untenantability
resulted from an Abatement Event, or that Tenant is entitled to the abatements
set forth in this Article, Tenant shall not be entitled to any reduction of the
annual fixed rent, the Tax Payment or the Operating Expense Payment until such
time as Landlord and Tenant agree, in writing, on such reduction, or, if
Landlord and Tenant fail to so agree within twenty (20) days after Landlord so
notifies Tenant, until such time as such dispute is settled by arbitration,
pursuant to subsection (e) below, in Tenant's favor, it being agreed that Tenant
shall have the right to submit such dispute to arbitration pursuant to said
subsection (e) within ninety (90) days after the last day of the twenty (20) day
period hereinbefore described. If Landlord and Tenant fail to so agree and
Tenant fails to submit such dispute to arbitration within the time period
hereinbefore set forth, such dispute shall be deemed resolved in Landlord's
favor, and Tenant shall not be entitled to any reduction or abatement of annual
fixed rent, Tax Payment or Operating Expense Payment. Furthermore, if the annual
fixed rent, the Tax Payment or the Operating Expense Payment is reduced pursuant
to subsections (a) and (b) above or this subsection (d), and thereafter Landlord
gives to Tenant a notice (the "ABATEMENT EXPIRATION NOTICE") stating that less
than ten (10%) percent of the rentable area of the Demised Premises is then
untenantable, or that one (1) or more of the portions of the Demised Premises in
question
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are not, or are no longer, untenantable, or that the untenantability which
entitled Tenant to such reduction of annual fixed rent no longer results from
the Abatement Event, then the Abatement Period (with respect to the applicable
portions of the Demised Premises) shall be deemed to have ended on the date
which is the earliest to occur of any of the foregoing events, unless Tenant
notifies Landlord that Tenant disputes Landlord's contention that any of such
events has occurred, and either (i) Landlord or Tenant agree otherwise in
writing, or (ii) if Landlord and Tenant fail so to agree within twenty (20) days
after Tenant so notifies Landlord, such dispute is settled by arbitration,
pursuant to said subsection (e), in Tenant's favor, it being agreed that Tenant
shall have the right to submit such dispute to arbitration pursuant to said
subsection (e) within ninety (90) days after the last day of the twenty (20) day
period hereinbefore described. If Landlord and Tenant fail so to agree and
Tenant fails to submit such dispute to arbitration within the time period
hereinbefore set forth, Tenant shall not be entitled to any further reduction of
annual fixed rent, the Tax Payment or the Operating Expense Payment as provided
in the Abatement Expiration Notice.
(e) Tenant may request arbitration of the matters described in
subsection (d) above, subject to the provisions of said subsection (d), by
notice from Tenant to Landlord, in the City of New York in accordance with the
then prevailing Expedited Procedures (the "EXPEDITED PROCEDURES") of the
Arbitration Rules for the Real Estate Industry of the American Arbitration
Association (or successor thereto) (presently Rules 56 through 60, as same may
be amended from time to time). The decision of the arbitrator shall be final and
conclusive. Subject to the terms of the immediately succeeding sentence,
judgment on the decision rendered by the arbitrator may be entered in any court
having jurisdiction thereof. In rendering such decision, the arbitrator shall
not add to, subtract from, or otherwise modify the provisions of this lease. The
fees and expenses of such arbitration shall be borne by the unsuccessful party,
however, each party shall be responsible for the fees and expenses of its
attorneys and witnesses.
(f) The rights and remedies of Tenant expressly set forth in this
Article shall be Tenant's only rights and remedies in respect of an Abatement
Event.
ARTICLE 19 19
ACCESS, CHANGES IN BUILDING FACILITIES, NAME
19.01 Except for the inside surfaces of all walls, windows and doors
bounding the Demised Premises, including exterior building walls, core corridor
walls and doors and any core corridor entrances and any space in or adjacent to
the Demised Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts,
electric or other utilities, sinks, elevators, fire stairs or other building
facilities and systems, and the use thereof, as well as access thereto through
the Demised Premises for the purpose of operation, maintenance, decoration and
repair, are reserved to Landlord, except that Landlord shall make available to
Tenant, within horizontal and vertical shafts from the basement service entrance
of the Building to the Building's core on any floor of the Demised Premises, as
selected by Tenant, sufficient space so as to allow Tenant to install in such
shafts two (2) four inch conduits to carry Tenant's telecommunications and data
cabling. In addition, Landlord shall make available to Tenant within a vertical
shaft from the Building's core on any floor of the Demised Premises, as selected
by Tenant, to the roof, for use in connection
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with the operation of the Equipment (as defined in Article 41 below), sufficient
space so as to allow Tenant to install in such shafts, risers and electricity
supply lines and data and other cables to the Equipment.
19.02 Tenant shall permit Landlord to install, use, replace, repair and
maintain pipes, ducts and conduits within the demising walls (as of the
Commencement Date, with respect to the Phase I Portion , as of the Phase II
Effective Date, with respect to the Phase II Portion, as of the Phase III
Effective Date, with respect to the Phase III Portion, and as of the Phase IV
Effective Date, with respect to the Phase IV Portion), bearing columns and
ceilings of the Demised Premises provided same are substantially concealed
within same and Landlord repairs any damage to the Demised Premises caused by
such installation, use, replacements, repair or maintenance.
19.03 Landlord or Landlord's agent shall have the right, upon reasonable
advance request (except in emergency as hereafter provided where no request need
be made) to enter and/or pass through the Demised Premises or any part thereof,
except for areas that Tenant has identified to Landlord in writing where money
or other valuables are kept (hereinafter referred to as "SECURITY AREAS") at
reasonable times during reasonable hours, (i) to examine the Demised Premises
and to show them to the fee owners, lessors of superior leases, holders of
superior mortgages, or prospective purchasers, mortgagees or lessees of the
Building as an entirety, and (ii) for the purpose of making such repairs or
changes in or to the Demised Premises or in or its facilities, as may be
provided for by this lease or as may be mutually agreed upon by the parties or
as Landlord may be required to make by law or in order to repair and maintain
said structure or its fixtures or facilities. Landlord shall be allowed to take
all materials into and upon the Demised Premises that may be reasonably required
for such repairs, changes, repainting or maintenance to the Demised Premises
only, without liability to Tenant, but Landlord shall not unreasonably interfere
with Tenant's use of the Demised Premises. Landlord shall also have the right to
enter on and/or pass through the Demised Premises, or any part thereof, at such
times as such entry shall be required by circumstances of emergency affecting
the Demised Premises or the Building. In such circumstances of emergency, a
policeman or fireman shall accompany Landlord's entry into any security area
whenever possible and Landlord will give Tenant prompt notice after such entry.
19.04 During the period of eighteen (18) months prior to the Expiration
Date Landlord may, upon reasonable advance notice, exhibit the Demised Premises
to prospective tenants.
19.05 Landlord reserves the right, at any time, without incurring any
liability to Tenant therefor, and without it constituting an actual or
constructive eviction, to make such changes in or to the Building and the
fixtures and equipment thereof, as well as in or to the size, composition,
number, arrangement or location of the public entrances, doors, doorways, halls,
passages, elevators, escalators and stairways and other public portions thereof,
as it may deem necessary or desirable, provided that (a) the services required
to be provided to Tenant pursuant to the provisions of this lease shall not be
adversely affected, and (b) the size of the Demised Premises shall not be
reduced and (c) Tenant shall, at all times, have ingress and egress to and from
the Building and the Demised Premises.
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19.06 (a) (i) For the purposes of this lease, "OCCUPANCY REQUIREMENT"
shall mean that this lease is in full force and effect, that no Event of Default
exists and that the Tenant named herein or a person that is a Related Entity to
the Tenant named herein or a successor to the Tenant named herein (or to a
Related Entity of the Tenant named herein) after a Stock Transfer, is the then
Tenant under this lease and occupies, for its own account, rentable area in the
Building of no less than an amount equal to ninety (90%) percent of the Phase I
Portion (to the extent that the Phase I Portion constitutes the Demised Premises
or a part of the Demised Premises), and after all of the Phase I Portion is (or
is part of) the Demised Premises, no less than an amount equal to the greater of
(A) 70,000 rentable square feet, and (B) ninety (90%) percent of the difference
between (1) the rentable area of all of the then Demised Premises, and (2)
60,000 rentable square feet (except to the extent that such failure to occupy is
due to a fire or other casualty, a temporary condemnation or a constructive
eviction).
(ii) Landlord may adopt any name for the Building, except that
during that portion of the term of this lease that the Occupancy Requirement is
satisfied, Landlord shall not adopt as the name the Building either (A) the name
of any company whose primary business is then in direct competition with the
then primary business of Tenant, or (B) the names of the following companies:
Microsoft, Yahoo, Lycos, Excite@home, Disney/Go Network (as opposed to any
company that includes the name "Disney"), Ask Jeeves, Look Smart, Priceline,
Amazon or iVillage, regardless (in the case of this clause (B)) of whether or
not the primary business of such companies is in direct competition with the
primary business of Tenant (Tenant hereby acknowledging that Landlord is not
acknowledging or agreeing that the primary business of any of such companies is
or is not in direct competition with the primary business of Tenant). Landlord
reserves the right to change the name (subject to the preceding sentence) or
address of the Building at any time. The names that Landlord may not adopt for
the Building pursuant to this subsection (ii) are herein referred to as the
"RESTRICTED NAMES," and the companies described or referred to in clauses (A)
and (B) above are hereinafter referred to as "RESTRICTED COMPANIES." For the
purposes of this Section, "adopting a name for the Building" shall include the
placing of an identification sign or plaque of the name in question on the
exterior of the Building, but shall not include the banners or the "Exterior
Signs" described in Article 45 below.
(iii) For the purposes of subsection 19.06(a)(ii)(A) above, if
Landlord notifies Tenant of a name that Landlord desires to adopt for the
Building, and Tenant fails to notify Landlord within fifteen (15) days (TIME
BEING OF THE ESSENCE) after Landlord gives such notice to Tenant that Tenant
believes that the name that Landlord desires to adopt is a Restricted Name, then
Tenant shall be deemed to have waived such prohibition with respect to such
name. In addition, if Tenant has not so waived such prohibition, and except as
otherwise provided in subsection (iv) below, if the Occupancy Requirement is
satisfied and Landlord and Tenant cannot agree that a name is or is not a
Restricted Name, then either party may request arbitration of such matter, by
notice from such party to the other, in the City of New York in accordance with
the then Expedited Procedures, and the other party shall submit to such
arbitration in accordance with the rules thereof. The decision of the arbitrator
shall be final and conclusive, and judgment on the decision rendered by the
arbitrator may be entered in any court having jurisdiction thereof. In rendering
such decision, the arbitrator shall not add to, subtract from, or otherwise
modify the provisions of this lease. The fees and expenses of such arbitration
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shall be borne by the unsuccessful party, however, each party shall be
responsible for the fees and expenses of its attorneys and witnesses.
(iv) Notwithstanding the foregoing, if at any time during the
term of this lease the Occupancy Requirement is not satisfied, and Landlord
adopts a name for the Building that would have been prohibited but for the fact
that the Occupancy Requirement was not satisfied, and thereafter the Occupancy
Requirement is again satisfied, Landlord shall not be obligated to rename or
unname the Building.
(b) Notwithstanding anything contained in this lease to the
contrary, if Landlord leases space in the Building to a Restricted Company,
Landlord may permit such Restricted Company to install a plaque on the exterior
of the Building that indicates a Restricted Name (such a plaque being
hereinafter referred to as a "RESTRICTED COMPANY PLAQUE"). If a Restricted
Company Plaque is so installed, then in addition to Tenant's rights under
Section 43.02 below, but provided the Occupancy Requirement is, and remains
satisfied, Landlord, at the request of Tenant and at the sole cost and expense
of Tenant (which cost and expense shall be reimbursed to Landlord by Tenant
within fifteen (15) days after Landlord's demand therefor), and subject to the
terms and conditions of this Article and otherwise in compliance with all laws
and/or requirements of public authorities, shall install a plaque containing
Tenant's name and/or registered or official logo, having a size that is
approximately the same size as the other Restricted Company Plaques, and made of
a material Landlord determines shall be in keeping with the design and character
of the Building and in a location of substantially comparable prominence as the
other Restricted Company Plaques, as reasonably determined by Landlord.
Landlord, at Tenant's sole cost and expense, shall maintain its plaque during
the Term (and any extensions thereof) or until earlier termination of this lease
and Tenant shall pay such costs and expenses (as additional rent) within fifteen
(15) days after the date of notice from Landlord. In the event that Landlord
shall deem it necessary in its sole reasonable judgment because of deterioration
or damage to such plaque, Tenant shall replace such plaque with a new plaque
with the same specifications (unless otherwise approved by Landlord) within
fifteen (15) days after the date of notice from Landlord. At Landlord's option,
Landlord may, at Tenant's sole cost and expense, remove the plaque and repair
all damage to the Building caused thereby, in the event that at any time (i) the
Occupancy Requirement is not satisfied, or (ii) there are no Restricted Company
Plaques on the exterior of the Building. In the event that Landlord shall deem
it necessary to remove Tenant's plaque in order to (x) make repairs, alterations
or improvements in, to or upon, the Building; or (y) comply with any law or
requirement of public authorities or (z) comply with any agreement between
Landlord and a third party, including, without limitation, superior mortgages or
superior leases, then the Landlord shall have the right to do so at Landlord's
sole cost and expense, provided that if the applicable law or requirement of
public authority permits the plaque to be restored, same is restored as promptly
as is reasonably practicable. For so long as the Occupancy Requirement is
satisfied, there shall be no more than two (2) Restricted Company Plaques, plus
Tenant's plaque on the exterior of the Building, except that during such time as
the Occupancy Requirement is satisfied but Tenant is otherwise not permitted to
have (and, in fact, does not have) its plaque on the exterior of the Building
pursuant to this Article, there shall be no more than three (3) Restricted
Company Plaques on the exterior of the Building.
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(c) Subject to the applicable provisions of this lease, including
Articles 13 and 14, there shall be no restriction on signage within the Demised
Premises.
19.07 For the purposes of Article 19, the term "Landlord" shall include
lessors of leases and the holders of mortgages to which this lease is subject
and subordinate as provided in Article 7.
19.08 Any reservation in this lease of a right by Landlord to enter upon
the Demised Premises and to make or perform any repairs, alterations or other
work in, to or about the Demised Premises which, in the first instance, is the
obligation of Tenant pursuant to this lease shall not be deemed to: (i) impose
any obligation on Landlord to do so, (ii) render Landlord liable (to Tenant or
any third party) for the failure to do so, or (iii) relieve Tenant from any
obligations to indemnify Landlord as otherwise provided elsewhere in this lease
19.09 Landlord agrees that, subject to the provisions of Section 21.03,
access to the Demised Premises and the Building will be available to Tenant 24
hours per day, 7 days per week, subject to Landlord's reasonable security
measures for the Building. A lobby desk shall be located in the Building lobby
and shall be staffed 24 hours per day, 7 days per week.
19.10 Tenant, at Tenant's sole cost and expense, shall directly arrange
and contract with an internet service provider (an "ISP") to provide internet
service to the Demised Premises and with a T-1 service provider (a "T-1
PROVIDER") to provide T-1 service to the Demised Premises. Tenant's ISP and T-1
Provider shall be subject to Landlord's prior written approval (which approval
shall not be unreasonably withheld, conditioned or delayed, except that if the
proposed ISP is the then ISP designated by Landlord for the Building or if the
proposed T-1 Provider is the then T-1 Provider designated by Landlord for the
Building (both of which providers, on the date of this lease, is Eureka
Communications, a non-exclusive provider of both such services in the Building),
such approval shall be deemed given. All wiring and related work required to be
performed within the Demised Premises to allow Tenant to access such internet
service and T-1 service, and all fees and charges charged by the ISP and the T-1
Provider, shall be paid directly to Tenant's ISP and T-1 Provider by Tenant.
ARTICLE 20
NOTICE OF ACCIDENTS
20.01 Tenant shall give notice to Landlord, promptly after Tenant learns
thereof, of (i) any accident in or about the Demised Premises for which Landlord
might be liable, (ii) all fires in the Demised Premises, (iii) all damages to or
defects in the Demised Premises, including the fixtures, equipment and
appurtenances thereof, for the repair of which Landlord might be responsible,
and (iv) all damage to or defects in any parts or appurtenances of the
Building's sanitary, electrical, heating, ventilating, air- conditioning,
elevator and other systems located in or passing through the Demised Premises or
any part thereof. Tenant's failure to give such prompt notice to Landlord shall
not relieve Landlord of any of its obligations under this lease, provided,
however, Tenant shall indemnify and save harmless Landlord and its agents
against and from any and all costs, expenses, damages, judgments, claims and
other liability of Landlord or its agents
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reasonably incurred or paid by Landlord or its agents as a result of Tenant's
failure to give such prompt notice, and provided further, that if Landlord is
delayed in performing its obligations under this lease as a result of Tenant's
failure to give such prompt notice, any rights or remedies Tenant may otherwise
have against Landlord shall be correspondingly delayed.
ARTICLE 21
NON-LIABILITY AND INDEMNIFICATION
21.01 Neither Landlord nor any agent or employee of Landlord shall be
liable to Tenant for any injury or damage to Tenant or to any other person or
for any damage to, or loss (by theft or otherwise) of, any property of Tenant or
of any other person, irrespective of the cause of such injury, damage or loss,
it being understood that no property, other than such as might normally be
brought upon or kept in the Demised Premises as an incident to the reasonable
use of the Demised Premises for the purpose herein permitted, will be brought
upon or be kept in the Demised Premises, except to the extent caused by the
intentionally wrongful act or gross negligence of Landlord, its agents or
employees.
21.02 (a) To the extent that Landlord shall not be entitled to
reimbursement from insurance proceeds and subject to the provisions of Section
11.03 above, Tenant shall indemnify and save harmless Landlord and its agents
against and from (i) any and all claims (x) arising from (A) the conduct or
management of the Demised Premises or of any business therein, (B) any default
under, or breach or, any of the terms, covenants or conditions of this lease on
Tenant's part to observe, perform or comply with, or (C) any work done, or any
condition created (other than by Landlord for Landlord's or Tenant's account) in
or about the Demised Premises during the term of this lease or during the period
of time, if any, prior to the Commencement Date that Tenant may have been given
access to the Demised Premises or during the period of time after the expiration
of the term of this lease that Tenant, or any person or entity claiming by,
through or under Tenant, remains in possession or occupancy of the Demised
Premises or any portion thereof, or (y) arising from any negligent or otherwise
wrongful act or omission of Tenant or any of its subtenants or licensees or its
or their employees, agents or contractors even if the claims described in (x) or
(y) above arise out of the concurrent negligence of Landlord, and (ii) all
reasonable costs, expenses and liabilities incurred in or in connection with
each such claim or action or proceeding brought thereon. In case any action or
proceeding be brought against Landlord by reason of any such claim, Tenant, upon
notice from Landlord, shall resist and defend such action or proceeding by
attorneys reasonably acceptable to Landlord, Landlord agreeing that the
attorneys for the insurance company providing Tenant's insurance are acceptable.
In no event shall Landlord be entitled to make a claim for consequential damages
under this subsection (a).
(b) To the extent that Tenant shall not be entitled to reimbursement
from insurance proceeds and subject to the provisions of Section 11.03 above,
Landlord shall indemnify and save harmless Tenant and its agents against and
from (i) any and all claims (x) arising from (A) the conduct or management of
the Building (other than the Demised Premises) or of any business therein, or
(B) any work or thing whatsoever done, or any condition created (other than by
Tenant) in or about the Building (other than the Demised Premises) during the
term of this lease, or (y) arising from any negligent or otherwise wrongful act
or omission of Landlord or any of its tenants or licensees or its or their
employees, agents or contractors if, and
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only if, the claims described in (x) or (y) above arise out of the sole
negligence, gross negligence or willful misconduct of Landlord or its agents and
employees, and (ii) all reasonable costs, expenses and liabilities incurred in
or in connection with each such claim or action or proceeding brought thereon.
In case any action or proceeding be brought against Tenant by reason of any such
claim, Landlord, upon notice from Tenant, shall resist and defend such action or
proceeding by attorneys reasonably acceptable to Tenant, Tenant agreeing that
the attorneys for the insurance company providing Landlord's insurance are
acceptable. In no event shall Tenant be entitled to make a claim for
consequential damages under this subsection (b).
21.03 Except as otherwise expressly provided in this lease, this lease
and the obligations of Tenant hereunder shall be in no wise affected, impaired
or excused because Landlord is unable to fulfill, or is delayed in fulfilling,
any of its obligations under this lease by reason of strike, other labor
trouble, governmental pre-emption or priorities or other controls in connection
with a national or other public emergency or shortages of fuel, supplies or
labor resulting therefrom, acts of God or other like cause beyond Landlord's
reasonable control.
ARTICLE 22
DESTRUCTION OR DAMAGE
22.01 If the Building or the Demised Premises shall be partially damaged
or partially destroyed by fire or other cause, the fixed rent and the additional
rent payable under Article 5 hereof shall be abated to the extent that the
Demised Premises shall have been rendered untenantable or inaccessible, for the
period from the date of such untenantability or inaccessibility to the date the
damage shall be repaired or restored to the extent necessary to make the Demised
Premises tenantable and accessible. If the Demised Premises shall be totally
(which shall be deemed to include substantially totally) damaged or destroyed or
rendered completely (which shall be deemed to include substantially completely)
untenantable or inaccessible on account of fire or other cause, the fixed rent
and the additional rent payable under Article 5 hereof shall abate as of the
date of the damage or destruction or untenantability, as the case may be,
through the date that is three (3) business days after the date on which the
repairs to the Building and the Demised Premises having been substantially
completed to the extent necessary to make the Demised Premises tenantable and
accessible, provided, however, that if Tenant, or any person or entity claiming
by, through or under Tenant, or any person or entity claiming by, through or
under Tenant, occupies a portion of the Demised Premises for the conduct of its
business during the period the restoration work is taking place and prior to the
date that the same are made tenantable, the fixed rent and such additional rent
attributable to the portions of the Demised Premises so occupied, on a per
rentable square foot basis, shall be reinstated from and after the date of such
occupancy.
22.02 If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other cause, then, provided this lease
shall not have been terminated as in Section 22.03 below provided, Landlord
shall repair the damage with reasonable dispatch after notice to it of the
damage or destruction; provided, however, that Landlord shall not be required to
repair or replace any of Tenant's Property nor to repair or restore any Tenant's
Work or Changes.
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22.03 If the Building shall be totally damaged or destroyed by fire or
other cause, or if the Building shall be so damaged or destroyed by fire or
other cause (whether or not the Demised Premises are damaged or destroyed) as to
require a reasonably estimated expenditure of more than twenty-five (25%)
percent of the full insurable value of the Building immediately prior to the
casualty, then in either such case Landlord may terminate this lease by giving
Tenant notice to such effect within ninety (90) days after the date of the
casualty. In case of any damage or destruction mentioned in this Article Tenant
may terminate this lease, by notice to Landlord, if Landlord has not
substantially completed the making of the required repairs within twelve (12)
months after the date of such damage or destruction, which twelve (12) month
period shall be extended for up to three (3) months if Landlord is delayed in
making such repairs by adjustment of insurance, labor trouble, governmental
controls, act of God, or any other cause beyond Landlord's reasonable control
(such twelve (12) month period, as same may be so extended by up to an
additional three (3) months, being hereinafter referred to as the "RESTORATION
PERIOD"). For Tenant's notice of termination to be effective, it must be sent
within forty-five (45) days after the last day of the Restoration Period, TIME
BEING OF THE ESSENCE. In addition, if any damage or destruction mentioned in
this Article occur, and Landlord does not elect to terminate this lease as
provided in this Section 22.03, then, provided Tenant has not elected to
terminate this lease pursuant to clause (B) below, within sixty (60) days after
such fire or other cause, Landlord shall deliver to Tenant a statement (the
"CONTRACTOR'S STATEMENT") from a contractor, construction manager, architect or
engineer, reasonably selected by Landlord, that sets forth such contractor's,
construction manager's, architect's or engineer's good faith estimate as to when
the repairs described in Section 22.02 above will be substantially complete. The
Contractor's Statement shall be without any representation or warranty on the
part of, or recourse against, Landlord or the person or entity that actually
gives such statement, except for Tenant's right to terminate this lease as
expressly hereinafter provided in the event that such statement is incorrect.
Notwithstanding anything contained in this Article 22 to the contrary, (A) if
such contractor, construction manager, architect or engineer estimates that the
repairs described in Section 22.02 above will be substantially complete more
than twelve (12) months after the date of such damage or destruction, or (B) if
the Demised Premises shall be totally damaged or destroyed by fire or other
cause during the last eighteen (18) months of the term of this lease, then,
Tenant, as Tenant's sole right and remedy, may elect to terminate this lease by
written notice to Landlord (such notice being hereinafter referred to as a
"TENANT ARTICLE 22 TERMINATION NOTICE") given within forty-five (45) days after
the date Tenant receives the Contractor's Statement, in the case of clause (A),
or within forty-five (45) days after the date of the fire or other cause, in the
case of clause (B), TIME BEING OF THE ESSENCE WITH RESPECT TO ALL OF SUCH DATES,
in which event, the term of this lease shall expire as fully and completely on
the date which is thirty (30) days after the date on which Tenant gives Landlord
the Tenant Article 22 Termination Notice, as if such date were the Expiration
Date and Tenant shall forthwith quit, surrender and vacate the Demised Premises
in accordance with the applicable provisions of this lease, without prejudice,
however, to Landlord's rights and remedies against Tenant under the provisions
of this lease in effect prior to such termination, and any fixed rent or
additional rent owing shall be paid up to such date and any payments of fixed
rent or additional rent made by Tenant which were on account of any period
subsequent to such date shall promptly be returned to Tenant. If Tenant fails to
give Landlord the Tenant Article 22 Termination Notice in the manner and in the
time period set forth above, then Tenant's right to terminate this lease shall
be
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null and void, and of no further force or effect, and this lease shall continue
in full force and effect, subject to the other provisions of this lease.
22.04 No damages, compensation or claim payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building pursuant
to this Article.
22.05 Notwithstanding any of the foregoing provisions of this Article,
if Landlord or the lessor of any superior lease or the holder of any superior
mortgage shall be unable to collect all of the insurance proceeds (including
rent insurance proceeds) applicable to damage or destruction of the Demised
Premises or the Building by fire or other cause, by reason of some action or
inaction on the part of Tenant or any of its employees, agents or contractors,
then, without prejudice to any other remedies which may be available against
Tenant, there shall be no abatement of Tenant's rents, but the total amount of
such rents not abated (which would otherwise have been abated) shall not exceed
the amount of the uncollected insurance proceeds.
22.06 Landlord will not carry insurance of any kind on Tenant's
Property, Changes or Tenant's Work.
22.07 The provisions of this Article shall be considered an express
agreement governing any case of damage or destruction of the Demised Premises by
fire or other casualty, and Section 227 of the Real Property Law of the State of
New York, providing for such a contingency in the absence of an express
agreement, and any other law of like import, now or hereafter in force, shall
have no application in such case.
ARTICLE 23
EMINENT DOMAIN
23.01 If the whole of the Building shall be lawfully taken by
condemnation or in any other manner for any public or quasi-public use or
purpose, this lease and the term and estate hereby granted shall forthwith
terminate as of the date of vesting of title in such taking (which date is
hereinafter also referred to as the "DATE OF THE TAKING"), and the rents shall
be prorated and adjusted as of such date.
23.02 If only a part of the Building shall be so taken, this lease shall
be unaffected by such taking, except that Tenant may elect to terminate this
lease in the event of a partial taking of one-third (1/3) (or more) of the
rentable area of the Demised Premises if the remaining area of the Demised
Premises shall not be reasonably sufficient for Tenant to continue feasible
operation of its business. Tenant shall give notice of such election to Landlord
not later than sixty (60) days after (i) notice of such taking is given by
Landlord to Tenant, or (ii) the date of such taking, whichever occurs sooner.
Upon the giving of such notice by Tenant this lease shall terminate on the date
of such taking and the rents shall be prorated as of such termination date. Upon
such partial taking and this lease continuing in force as to any part of the
Demised Premises, the rents apportioned to the part taken shall be prorated and
adjusted as of the date of taking and from such date the fixed rent for the
Demised Premises and additional rent payable pursuant to Article 5 shall be
appropriately adjusted according to the rentable area remaining.
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23.03 Landlord shall be entitled to receive the entire award in any
proceeding with respect to any taking provided for in this Article without
deduction therefrom for any estate vested in Tenant by this lease and Tenant
shall receive no part of such award, except as hereinafter expressly provided in
this Article. Tenant hereby expressly assigns to Landlord all of its right,
title and interest in or to every such award. Notwithstanding anything herein to
the contrary, Tenant may, at its sole cost and expense, make a claim with the
condemning authority for Tenant's moving expenses, the value of Tenant's
fixtures or Tenant's Changes which do not become part of the Building or
property of Landlord, provided however that Landlord's award is not thereby
reduced or otherwise adversely affected.
23.04 If the temporary use or occupancy of all or any part of the
Demised Premises shall be lawfully taken by condemnation or in any other manner
for any public or quasi-public use or purpose during the term of this lease,
Tenant shall be entitled, except as hereinafter set forth, to receive that
portion of the award for such taking which represents compensation for the use
and occupancy of the Demised Premises and, if so awarded, for the taking of
Tenant's Property and for moving expenses, and Landlord shall be entitled to
receive that portion which represents reimbursement for the cost of restoration
of the Demised Premises. This lease shall be and remain unaffected by such
taking and Tenant shall continue responsible for all of its obligations
hereunder insofar as such obligations are not affected by such taking and shall
continue to pay in full the fixed rent and additional rent when due. If the
period of temporary use or occupancy shall extend beyond the Expiration Date,
that part of the award which represents compensation for the use or occupancy of
the Demised Premises (or a part thereof) shall be divided between Landlord and
Tenant so that Tenant shall receive so much thereof as represents the period
prior to the Expiration Date and Landlord shall receive so much thereof as
represents the period subsequent to the Expiration Date. All moneys received by
Tenant as, or as part of, an award for temporary use and occupancy for a period
beyond the date to which the rents hereunder have been paid by Tenant shall be
received, held and applied by Tenant as a trust fund for payment of the rents
falling due hereunder.
23.05 In the event of any taking of less than the whole of the Building
which does not result in a termination of this lease, or in the event of a
taking for a temporary use or occupancy of all or any part of the Demised
Premises which does not extend beyond the Expiration Date, Landlord, at its
expense, and to the extent any award or awards shall be sufficient for the
purpose, shall proceed with reasonable diligence to repair, alter and restore
the remaining parts of the Building and the Demised Premises to substantially a
building standard condition to the extent that the same may be feasible and so
as to constitute a complete and tenantable Building and Demised Premises.
23.06 Should any part of the Demised Premises be taken to effect
compliance with any law or requirement of public authority other than in the
manner hereinabove provided in this Article, then (i) if such compliance is the
obligation of Tenant under this lease, Tenant shall not be entitled to any
diminution or abatement of rent or other compensation from Landlord therefor,
but (ii) if such compliance is the obligation of Landlord under this lease, the
fixed rent hereunder shall be reduced and additional rents under Article 5 shall
be adjusted in the same manner as is provided in Section 23.02 according to the
reduction in rentable area of the Demised Premises resulting from such taking.
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23.07 Any dispute which may arise between the parties with respect to
the meaning or application of any of the provisions of this Article shall be
determined by arbitration in the manner provided in Article 34.
ARTICLE 24
SURRENDER; HOLDOVER
24.01 On the last day of the term of this lease, or upon any earlier
termination of this lease, or upon any re-entry by Landlord upon the Demised
Premises, Tenant shall quit and surrender the Demised Premises to Landlord in
good order, condition and repair, except for ordinary wear and tear and damage
for which Landlord is responsible to repair pursuant to the provisions of this
lease, and Tenant shall remove all of Tenant's Property therefrom except as
otherwise expressly provided in this lease and, except as otherwise expressly
provided in this lease, shall restore the Demised Premises wherever such removal
results in damage thereto.
24.02 (a) In the event this lease is not renewed or extended or a new
lease is not entered into between the parties, and if Tenant shall then hold
over after the expiration of the term of this lease, and if Landlord shall then
not proceed to remove Tenant from the Demised Premises in the manner permitted
by law (or shall not have given written notice to Tenant that Tenant must vacate
the Demised Premises) irrespective of whether or not Landlord accepts rent from
Tenant for a period beyond the Expiration Date, the parties hereby agree that
Tenant's occupancy of the Demised Premises after the expiration of the term
shall be under a month-to-month tenancy commencing on the first day after the
expiration of the term, which tenancy shall be upon all of the terms set forth
in this lease except for Section 18.07, and Articles 39 and 40 except that
Tenant shall pay on the first day of each month of the holdover period as fixed
rent, an amount equal to one and one-half (1 1/2) times one-twelfth of the fixed
rent and additional rent payable by Tenant during the last year of the term of
this lease (I.E., the year immediately prior to the holdover period) for the
first month (or any portion thereof) of such holdover period and two (2) times
one-twelfth of the fixed rent and additional rent payable by Tenant during the
last year of the term of this lease for the each month (or portion thereof)
thereafter. It is further stipulated and agreed that if Landlord shall, at any
time after the expiration of the original term or after the expiration of any
term created thereafter, proceed to remove Tenant from the Demised Premises as a
holdover, the fixed rent for the use and occupancy of the Demised Premises
during any holdover period shall be calculated in the same manner as set forth
above. In addition to the foregoing, but subject to the provisions of subsection
30.02(b) below, Landlord shall be entitled to recover from Tenant all actual
out-of-pocket costs and expenses, resulting from such holdover, including all
attorneys' fees and disbursements and court costs incurred or paid by Landlord.
(b) Notwithstanding anything to the contrary contained in this
lease, the acceptance of any rent paid by Tenant pursuant to subsection 24.02(a)
above shall not preclude Landlord from commencing and prosecuting a holdover or
summary eviction proceeding, and the preceding sentence shall be deemed to be an
"agreement expressly providing otherwise" within the meaning of Section 232-c of
the Real Property Law of the State of New York.
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(c) All damages to Landlord by reason of holding over by Tenant
may be of the subject of a separate action and need not be asserted by Landlord
in any summary proceedings against Tenant. Tenant acknowledges that possession
of the Demised Premises must be surrendered to Landlord at the expiration or
sooner termination of the term of this lease. Tenant agrees to indemnify and
save Landlord harmless against all liabilities, costs, suits, demands, charges,
and expenses of any kind or nature, including attorneys' fees and disbursements,
resulting from a delay by Tenant in so surrendering the Demised Premises,
including, without limitation, any claims made by any succeeding tenant founded
on such delay, except that Landlord shall not be entitled to make a claim for
consequential damages under this Section 24.02 unless Tenant remains in
possession of the Demised Premises (or any portion thereof) for more than four
(4) months after the expiration of the term of this lease (without taking into
account any month-to-month tenancy that may be created under this Section
24.02).
ARTICLE 25
CONDITIONS OF LIMITATION
25.01 To the extent permitted by applicable law this lease and the term
and estate hereby granted are subject to the limitation that whenever Tenant
shall make an assignment of all or substantially all of the property of Tenant
for the benefit of creditors, or shall file a voluntary petition under any
bankruptcy or insolvency law, or an involuntary petition alleging an act of
bankruptcy or insolvency shall be filed against Tenant under any bankruptcy or
insolvency law, or whenever a petition shall be filed against Tenant under the
reorganization provisions of the United States Bankruptcy Act or under the
provisions of any law of like import, or whenever a petition shall be filed by
Tenant under the arrangement provisions of the United States Bankruptcy Act or
under the provisions of any law of like import, or whenever a permanent receiver
of Tenant or of or for the property of Tenant shall be appointed, then,
Landlord, (a) at any time after receipt of notice of the occurrence of any such
event, or (b) if such event occurs without the acquiescence of Tenant, at any
time after the event continues unstayed for one hundred and twenty (120) days,
Landlord may give Tenant a notice of intention to end the term of this lease at
the expiration of five (5) days from the date of service of such notice of
intention, and upon the expiration of said five (5) day period this lease and
the term and estate hereby granted, whether or not the term shall theretofore
have commenced, shall terminate with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 27.
25.02 This lease and the term and estate hereby granted are subject to
the further limitation that:
(a) whenever Tenant shall default in the payment of any
installment of fixed rent, or in the payment of any additional rent or any other
charge payable by Tenant to Landlord, on any day upon which the same ought to be
paid, and such default shall continue for ten (10) days after Landlord shall
have given Tenant a notice specifying such default; or
(b) whenever Tenant shall do or permit anything to be done,
whether by action or inaction, contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be remedied by
Tenant within thirty (30) days after Landlord shall have given to
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Tenant a notice specifying the same which thirty (30) days shall be reduced to
five (5) days for a default under Section 13.07, Article 33 and subsection
41.04(c), or, in the case of a happening or default (specifically excluding a
default under said Section 13.07, Article 33 and subsection 41.04(c)) which
cannot with due diligence be cured within a period of thirty (30) days and the
continuance of which for the period required for cure will not subject Landlord
to the risk of criminal liability (as more particularly described in Section
10.02) or termination of any superior lease or foreclosure of any superior
mortgage, if Tenant shall not, (i) within said thirty (30) day period advise
Landlord of Tenant's intention to duly institute all steps necessary to remedy
such situation, (ii) duly institute within said thirty (30) day period, and
thereafter diligently prosecute to completion all steps necessary to remedy the
same and (iii) complete such remedy within such time after the date of the
giving of said notice of Landlord as shall reasonably be necessary; or
(c) whenever any event shall occur or any contingency shall arise
whereby this lease or the estate hereby granted or the unexpired balance of the
term hereof would, by operation of law or otherwise, devolve upon or pass to any
person, firm or corporation other than Tenant, except as expressly permitted by
Article 9; or
(d) whenever Tenant shall abandon the Demised Premises (unless as
a result of a casualty) or whenever Tenant shall vacate any portion of the
Demised Premises and shall fail to secure and otherwise protect same, to the
reasonable satisfaction of Landlord and such failure continues for ten (10)
business days after Landlord's notice to Tenant of such failure, or
(e) when Tenant shall be in default in the observance or
performance of its obligations under any other lease in the Building, then in
any of said cases set forth in the foregoing Subsections (a), (b), (c) (d) and
(e), Landlord may give to Tenant a notice of intention to end the term of this
lease at the expiration of five (5) days from the date of the service of such
notice of intention, and upon the expiration of said five (5) days this lease
and the term and estate hereby granted, whether or not the term shall
theretofore have commenced, shall terminate with the same effect as if that day
were the Expiration Date, but Tenant shall remain liable for damages as provided
in Article 27.
ARTICLE 26
RE-ENTRY BY LANDLORD
26.01 If Tenant shall default in the payment of any installment of fixed
rent, or of any additional rent, on any date upon which the same ought to be
paid, and if such default shall continue for ten (10) days after Landlord shall
have given to Tenant a notice specifying such default, or if this lease shall
expire as in Article 25 provided, Landlord or Landlord's agents and employees
may immediately or at any time thereafter re-enter the Demised Premises, or any
part thereof, in the name of the whole, either by summary dispossess proceedings
or by any suitable action or proceeding at law, without being liable to
indictment, prosecution or damages therefor, and may repossess the same, and may
remove any persons therefrom, to the end that Landlord may have, hold and enjoy
the Demised Premises again as and of its first estate and interest therein. The
word re-enter, as herein used, is not restricted to its technical legal meaning.
In the event of any termination of this lease under the provisions of Article 25
or if Landlord shall re-enter the Demised Premises under the provisions of this
Article or in the event of the
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termination of this lease, or of re-entry, by or under any summary dispossess or
other proceeding or action or any provision of law by reason of default
hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord the
fixed rent and additional rent payable by Tenant to Landlord up to the time of
such termination of this lease, or of such recovery of possession of the Demised
Premises by Landlord, as the case may be, and shall also pay to Landlord damages
as provided in Article 27.
26.02 In the event of a breach or threatened breach by Landlord or
Tenant of any of their respective obligations under this lease, Tenant or
Landlord, as the case may be, shall also have the right of injunction. The
special remedies to which Landlord may resort hereunder are cumulative and are
not intended to be exclusive of any other remedies or means of redress to which
Landlord may lawfully be entitled at any time and Landlord may invoke any remedy
allowed at law or in equity as if specific remedies were not provided for
herein.
26.03 If this lease shall terminate under the provisions of Article 25,
or if Landlord shall re-enter the Demised Premises under the provisions of this
Article, or in the event of the termination of this lease, or of re-entry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all moneys, if any, paid by Tenant to Landlord, whether as
advance rent, security or otherwise, but such moneys shall be credited by
Landlord against any fixed rent or additional rent due from Tenant at the time
of such termination or re-entry and, at Landlord's option, against any damages
payable by Tenant under Article 27 or pursuant to law and against all other
amounts which are then, or which may thereafter become, payable to Landlord. Any
portion of such moneys that remain after Landlord credits same as hereinbefore
provided shall promptly be returned to Tenant.
ARTICLE 27
DAMAGES
27.01 If this lease is terminated under the provisions of Article 25, or
if Landlord shall re-enter the Demised Premises under the provisions of Article
26, or in the event of the termination of this lease, or of re-entry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant (after the giving of
any required notice and the expiration of any applicable cure period), Tenant
shall pay to Landlord as damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this lease or at
the time of any such re-entry by Landlord, as the case may be, represents the
then value of the excess, if any, discounted to present value at the rate of six
(6%) percent per annum, of:
1. the aggregate of the fixed rent and the additional rent
payable hereunder which would have been payable by Tenant (conclusively
presuming the additional rent to be the same as was payable for the year
immediately preceding such termination) for the period commencing with such
earlier termination of this lease or the date of any such re-entry, as the case
may be, and ending with the Expiration Date, had this lease not so terminated or
had Landlord not so re-entered the Demised Premises; over
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2. the aggregate rental value of the Demised Premises for
the same period; or
(b) sums equal to the fixed rent and the additional rent (as above
presumed) payable hereunder which would have been payable by Tenant had this
lease not so terminated, or had Landlord not so re-entered the Demised Premises,
payable upon the due dates therefor specified herein following such termination
or such re-entry and until the Expiration Date, provided, however, that if
Landlord shall relet the Demised Premises during said period, Landlord shall
credit Tenant with the net rents received by Landlord from such reletting, such
net rents to be determined by first deducting from the gross rents as and when
received by Landlord from such reletting the expenses incurred or paid by
Landlord in terminating this lease or in re-entering the Demised Premises and in
securing possession thereof, as well as the expenses of reletting, including
altering and preparing the Demised Premises for new tenants, brokers'
commissions, and all other expenses properly chargeable against the Demised
Premises and the rental therefrom; it being understood that any such reletting
may be for a period shorter or longer than the remaining term of this lease; but
in no event shall Tenant be entitled to receive any excess of such net rents
over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be
entitled in any suit for the collection of damages pursuant to this Subsection
to a credit in respect of any net rents from a reletting, except to the extent
that such net rents are actually received by Landlord. If the Demised Premises
or any part thereof should be relet in combination with other space, then proper
apportionment on a square foot basis (for equivalent space) shall be made of the
rent received from such reletting and of the expenses of reletting.
If the Demised Premises or any part thereof be relet by Landlord for the
unexpired portion of the term of this lease, or any part thereof, before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Demised Premises, or part thereof, so relet
during the term of the reletting.
27.02 Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this lease would have expired if
it had not been so terminated under the provisions of Article 25, or under any
provision of law, or had Landlord not re- entered the Demised Premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of any
default hereunder on the part of Tenant. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to prove for and obtain as
liquidated damages by reason of the termination of this lease or re-entry on the
Demised Premises for the default of Tenant under this lease, 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 any of the sums referred to
in Section 27.01.
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ARTICLE 28
WAIVER
28.01 Tenant, for Tenant, and on behalf of any and all persons claiming
through or under Tenant, including creditors of all kinds, does hereby waive and
surrender all right and privilege which they or any of them might have under or
by reason of any present or future law, to redeem the Demised Premises or to
have a continuance of this lease for the term hereby demised after being
dispossessed or ejected therefrom by process of law or under the terms of this
lease or after the termination of this lease as herein provided.
28.02 In the event that Tenant is in arrears in payment of fixed rent or
additional rent hereunder, Tenant waives Tenant's right, if any, to designate
the items against which any payments made by Tenant are to be credited, and
Tenant agrees that Landlord may apply any payments made by Tenant to any items
it sees fit, irrespective of and notwithstanding any designation or request by
Tenant as to the items against which any such payments shall be credited.
28.03 Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Demised
Premises, including any claim of injury or damage, or any emergency or other
statutory remedy with respect thereto.
28.04 The provisions of Articles 17 and 18 shall be considered expressed
agreements governing the services to be furnished by Landlord, and Tenant agrees
that any laws and/or requirements of public authorities, now or hereafter in
force, shall have no application in connection with any enlargement of
Landlord's obligations with respect to such services unless Tenant agrees, in
writing, to pay to Landlord, as additional rent, Landlord's reasonable charges
for any additional services provided.
28.05 If, at any time during the term of this lease, any requirement of
public authority shall have the effect of limiting, for any period of time, the
amount of the rents payable by Tenant, or receivable by Landlord, under this
lease, and the maximum rents so permitted to be paid by Tenant, or received by
Landlord, hereunder shall be less than the rents herein reserved, then:
(a) throughout the period of limitation, Tenant shall remain
liable for the maximum amount of rents that is lawfully payable; and
(b) if and when the period of limitation ends, the requirement of
public authority imposing such limitation is repealed, or such limitation is
restrained or rendered unenforceable by any order or ruling of a court of
appropriate jurisdiction:
(i) to the extent that the same is not prohibited by any
requirement of public authority, Tenant shall pay to Landlord, on demand, all
amounts that would have been due
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from Tenant to Landlord during the period of limitation, but that were not paid
because of the requirements of public authorities; and
(ii) thereafter, Tenant shall pay to Landlord all of the
rents reserved under this lease, all of which shall be calculated as if there
had been no intervening period of limitation.
ARTICLE 29 29
NO OTHER WAIVERS OR MODIFICATIONS
29.01 The failure of either party to insist in any one or more instances
upon the strict performance of any one or more of the obligations of this lease,
or to exercise any election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations of this lease or of the right to exercise such election, but the
same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. No executory agreement hereafter made
between Landlord and Tenant shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this lease, in whole
or in part, unless such executory agreement is in writing, refers expressly to
this lease and is signed by the party against whom enforcement of the change,
modification, waiver, release, discharge or termination or effectuation of the
abandonment is sought.
29.02 The following specific provisions of this Section shall not be
deemed to limit the generality of any of the foregoing provisions of this
Article:
(a) no agreement to accept a surrender of all or any part of the
Demised 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 Demised Premises. If Tenant
shall at any time request Landlord to sublet the Demised 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, except to the extent
such loss or damage results from the intentional wrongful act or gross
negligence of Landlord or its employees or agents.
(b) the receipt by Landlord or payment by Tenant of rent with
knowledge of breach of any obligation of this lease shall not be deemed a waiver
of such breach;
(c) no payment by Tenant or receipt by Landlord of a lesser amount
than the correct fixed rent or additional rent due hereunder shall be deemed to
be other than a payment on account, nor shall any endorsement or statement on
any check or any letter accompanying 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.
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ARTICLE 30
CURING TENANT'S DEFAULTS, ADDITIONAL RENT
30.01 (a) if Tenant shall default in the performance of any of
Tenant's obligations under this lease, Landlord, without thereby waiving such
default, may (but shall not be obligated to) perform the same for the account
and at the expense of Tenant, without notice, in a case of emergency, and in any
other case, only if such default continues after the expiration of (i) ten (10)
days from the date Landlord gives Tenant notice of intention so to do, or (ii)
the applicable grace period provided in Section 25.02 or elsewhere in this lease
for cure of such default, whichever occurs later;
(b) if Tenant is late in making any payment due to Landlord from
Tenant under this lease for five (5) or more days, then interest shall become
due and owing to Landlord on such payment from the date when it was due computed
at the rate of three (3%) percent per annum over the Prime Rate but in no event
in excess of the maximum legal rate of interest chargeable to corporations in
the State of New York.
30.02 (a) Bills for any reasonable expenses incurred by Landlord in
connection with any such performance by it for the account of Tenant, and bills
for all costs, expenses and disbursements of every kind and nature whatsoever,
including reasonable counsel fees, involved in collecting or endeavoring to
collect the fixed rent or additional rent or any part thereof or enforcing or
endeavoring to enforce any rights against Tenant, under or in connection with
this lease, or pursuant to law, other than as provided in subsection 30.02(b)
below, as well as bills for any property, material, labor or services provided,
furnished, or rendered, by Landlord or at its instance to Tenant, may be sent by
Landlord to Tenant monthly, or immediately, at Landlord's option, and, shall be
due and payable in accordance with the terms of such bills.
(b) If Tenant shall be in breach of any of Tenant's obligations
under this lease, and if Landlord, as a result thereof, shall make any
reasonable out-of-pocket payments for court costs and reasonable attorneys' fees
in instituting or prosecuting or defending any action or proceeding or in the
event Landlord shall make any such expenditures in connection with any action or
proceeding brought by Tenant under this lease, then, provided that Landlord
shall be the prevailing party in any such action or proceeding, Tenant shall
reimburse or pay Landlord for such reasonable costs and fees actually paid by
Landlord in connection with such action or proceeding.
(c) If Landlord shall be in breach of any of Landlord's
obligations under this lease, and if Tenant, as a result thereof, shall make any
reasonable out-of-pocket payments for court costs and reasonable attorneys' fees
in instituting or prosecuting or defending any action or proceeding or in the
event Tenant shall make any such expenditures in connection with any action or
proceeding brought by Landlord under this lease, then, provided that Tenant
shall be the prevailing party in any such action or proceeding, Landlord shall
reimburse or pay Tenant for such reasonable costs and fees actually paid by
Tenant in connection with such action or proceeding.
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(d) Notwithstanding anything to the contrary contained in
subsections (b) and (c) above, to the extent that this lease provides for a
mechanism to resolve disputes (such as arbitration), or if either party is
expressly permitted to dispute a demand or determination hereunder, then such
disputes shall not be deemed a breach under this lease and the dispute
mechanisms provided for in this lease shall supercede subsections (b) and (c)
above. In addition, in any provision of this lease which provides for the
payment of attorneys' fees or disbursements as a result of one of the parties to
this lease being in default hereunder, and the party alleging such default
institutes or prosecutes or defends any action or proceeding in connection with
such default, then the party otherwise entitled to such attorneys' fees or
disbursements shall not be entitled to same except as otherwise provided in
subsection (b) or (c) above.
ARTICLE 31
BROKER
31.01 Tenant covenants, warrants and represents that it had no
conversations or other communications with any broker or finder except
ColliersABR, Inc. and Insignia/ESG, Inc. (collectively, the "BROKER") in
connection with the leasing of the Demised Premises to Tenant and that, to
Tenant's best knowledge, there were no brokers or finders except the Broker
instrumental in consummating this lease. Tenant agrees to hold Landlord harmless
against any claims for a brokerage commission or consultation fees arising out
of any conversations or negotiations had by Tenant with any brokers or finders
except for the Broker.
31.02 Based upon the foregoing representation, Landlord has agreed to
pay, pursuant to separate agreements, a brokerage commission to the Broker.
31.03 Landlord covenants, warrants and represents that it had no
conversations or other communications with any broker or finder (except the
Broker) in connection with the leasing of the Demised Premises to Tenant and
that, to Landlord's best knowledge, there were no brokers or finders except the
Broker instrumental in consummating this lease. Landlord agrees to hold Tenant
harmless against any claims for a brokerage commission or consultation fees
arising out of any conversations or negotiations had by Landlord with any
brokers or finders, including the Broker.
ARTICLE 32
NOTICES
32.01 Except as otherwise expressly permitted in this lease, all
notices, demands, approvals, consents, requests and other communications which
under the terms of this lease, or under any statute, must or may be given or
made by the parties hereto, must be in writing (whether or not so stated
elsewhere in this lease), and must be made either (i) by depositing such notice
in the registered or certified mail of the United States of America, return
receipt requested, or (ii) by delivering such notice by a nationally recognized
commercial overnight courier ("NEXT BUSINESS DAY DELIVERY"), which courier
provides for delivery with receipt guaranteed, addressed to each party as
follows:
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If to Landlord: at the address set forth on the
first page of this lease
With a copy to: Greenberg Traurig
200 Park Avenue
New York, New York 10166
Attention: Robert J. Ivanhoe, Esq.
If to Tenant: About.com, Inc.
220 East 42nd Street, 24th Floor
New York, New York 10017
Attn: Alan Blaustein, Esq.
prior to the Commencement Date, and at
the Demised Premises (Attention: Alan
Blaustein, Esq., and, in a separate
notice, Attention: Mr. Todd Sloan), after
the Commencement Date,
with a copy of default
notices and termination
notices only to:
Loeb & Loeb, LLP
345 Park Avenue
New York, New York 10154
Attn: Scott I. Schneider, Esq.
32.02 All notices, demands, approvals, consents, requests and other
communications shall be deemed to have been delivered (i) if mailed as provided
for in this Article, on the date which is three (3) business days after mailing
or (ii) if sent by commercial courier, on the date which is one (1) business day
after dispatching. Either party may designate by notice in writing given in the
manner herein specified a new or other address to which such notice, demand,
approval, consent, request or other communication shall thereafter be so given
or made. Notwithstanding the foregoing all fixed rent and additional rent
statements, bills and invoices may be given by regular mail, hand-delivery or
facsimile machine and shall be deemed given upon receipt, and emergency repair
notices may be hand-delivered or sent via facsimile machine and shall be deemed
given upon receipt.
ARTICLE 33 33
ESTOPPEL CERTIFICATE
33.01 Within ten (10) business days after either party's request, the
other party shall execute and deliver to the requesting party a statement (i)
certifying that this lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications) and whether any options granted to
Tenant pursuant to the provisions of this lease have been exercised, (ii)
certifying the dates to which the fixed rent and additional rent have been paid
and the amounts thereof, (iii) stating whether or not, to the best knowledge of
the signer, the other party is in default in performance of any of its
obligations under this lease, or if Tenant is the certifying party, whether
Tenant is in default, and,
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if so, specifying each such default of which the signer may have knowledge, (iv)
stating whether Tenant has any rights to offsets or abatement of rent, (v)
stating whether Tenant has prepaid any rent for more than one month in advance,
and (vi) certifying such other information as the requesting party reasonably
requests, it being intended that any such statement delivered pursuant hereto
may be relied upon by others with whom the party requesting such certificate may
be dealing and their respective successors and/or assigns. Breach of the
foregoing will constitute Tenant's acknowledgement which may be relied on by any
person holding or proposing to acquire an interest in the Building, this lease
or any superior mortgage, that this lease is unmodified and in full force and
effect and will constitute, as to any such person, a waiver of any defaults on
Landlord's part which may exist prior to the date of such request. The foregoing
shall not limit any other rights and remedies available to Landlord for breach
of this Article.
ARTICLE 34
ARBITRATION
34.01 Either party may request arbitration of any matter in dispute
wherein arbitration is expressly provided in this lease as the appropriate
remedy. The party requesting arbitration shall do so by giving notice to that
effect to the other party, and both parties shall promptly thereafter jointly
apply to the American Arbitration Association (or any organization successor
thereto) in the City and County of New York for the appointment of a single
arbitrator.
34.02 The arbitration shall be conducted in accordance with the then
prevailing rules of the American Arbitration Association (or any organization
successor thereto) in the City and County of New York. In rendering such
decision and award, the arbitrator shall not add to, subtract from or otherwise
modify the provisions of this lease.
34.03 If for any reason whatsoever a written decision and award of the
arbitrator shall not be rendered within sixty (60) days after the appointment of
such arbitrator, then at any time thereafter before such decision and award
shall have been rendered either party may apply to the Supreme Court of the
State of New York or to any other court having jurisdiction and exercising the
functions similar to those now exercised by such court, by action, proceeding or
otherwise (but not by a new arbitration proceeding) as may be proper to
determine the question in dispute consistently with the provisions of this
lease.
34.04 All the expenses of the arbitration shall be borne by the parties
equally except that each party shall be responsible for the payment of its own
legal fees and disbursements and expert witness fees.
ARTICLE 35
NO OTHER REPRESENTATIONS, CONSTRUCTION, GOVERNING LAW, CONSENTS
35.01 Tenant expressly acknowledges and agrees that Landlord has not made
and is not making, and Tenant, in executing and delivering this lease, is not
relying upon, any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this lease or in any other
written agreement which may be made between the parties concurrently with the
execution and delivery of this lease and shall expressly refer to this lease.
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This lease and said other written agreement(s) made concurrently herewith are
hereinafter referred to as the "LEASE DOCUMENTS". It is understood and agreed
that all understandings and agreements heretofore had between the parties are
merged in the lease documents, which alone fully and completely express their
agreements and that the same are entered into after full investigation, neither
party relying upon any statement or representation not embodied in the lease
documents, made by the other.
35.02 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. This lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
lease to be drafted.
35.03 This lease shall be governed in all respects by the laws of the
State of New York applicable to agreements made and wholly executed therein
without reference to conflicts of laws principles.
35.04 (a) 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,
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; provided, however, that Tenant shall
not be deemed to have waived any claim for damages if there shall be an express
determination in the action, proceeding or arbitration hereinafter described
that Landlord acted maliciously or in bad faith in exercising its judgment or
withholding its consent or approval despite its agreement to act reasonably (in
which case Tenant shall have the right to its actual (but not consequential,
exemplary or punitive) damages. Except as otherwise expressly provided in the
preceding sentence, Tenant's sole remedy for any such failure, refusal, or delay
shall be an action for a declaratory judgment, specific performance, or
injunction, pursuant to the Simplified Procedure For Court Determination of
Disputes as set forth in the CPLR ss.3031 et seq. (or any successor thereto), or
(ii) in the City of New York in accordance with the Expedited Procedures, 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. The fees and expenses of such arbitration shall be borne by the
unsuccessful party), and, in either case, the decision shall be final and
conclusive.
(b) In addition, whenever in this lease Landlord is required to be
reasonable in the granting of any consent or approval or otherwise, Landlord
shall not be deemed to have been unreasonable in the refusal to give its consent
or approval or otherwise if: (a) Landlord is not permitted to do so under the
terms of any superior lease or superior mortgage or (b) the consent
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or approval of any superior lessor or holder of superior mortgagee is required
and has been denied or not given.
35.05 Submission by Landlord of this lease for execution by Tenant shall
confer no rights nor impose any obligations on either party unless and until
both Landlord and Tenant shall have executed this lease and duplicate originals
thereof shall have been delivered to the respective parties.
35.06 If there shall be more than one person named as Tenant herein, then
all such persons shall be deemed to be joint tenants in the leasehold estate
demised hereby, with joint and several liability hereunder.
35.07 Without Landlord's prior written consent, Tenant may not record this
lease. Tenant, at its sole cost and expense, may prepare a memorandum of this
lease. If (a) such memorandum contains only the minimum information required to
record a memorandum of lease in the State of New York and is otherwise
reasonably satisfactory to Landlord, and (b) Tenant, at its sole cost and
expense, prepares and delivers to Landlord (i) all documents and instruments (in
form and content reasonably satisfactory to Landlord) which Landlord's title
insurance company advises Landlord are necessary to remove said memorandum of
lease from the record, and (ii) the written authorization of Tenant (in form and
content reasonably satisfactory to Landlord) permitting Landlord to record and
file such documents and instruments upon, or at any time after, the expiration
of the term of this lease (as same may be from time to time amended), which
authorization shall include the authority to complete such documents and
instruments, including the insertion of dates and references to any amendments
of this lease, then Landlord shall execute and acknowledge said memorandum of
lease and permit Tenant to record same at Tenant's sole cost and expense.
35.08 Except as provided in Section 24.02 above, in no event shall
Landlord or Tenant be liable to the other for consequential, exemplary or
punitive damages.
ARTICLE 36
PARTIES BOUND
36.01 The obligations of this lease shall bind and benefit the
successors and assigns of the parties with the same effect as if mentioned in
each instance where a party is named or referred to, except that no violation of
the provisions of Article 9 shall operate to vest any rights in any successor or
assignee of Tenant and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained in Article 25.
However, the obligations of Landlord under this lease shall not be binding upon
Landlord herein named with respect to any period subsequent to the transfer of
its interest in the Building as owner or lessee thereof and in event of such
transfer said obligations shall thereafter be binding upon each transferee of
the interest of Landlord herein named as such owner or lessee of the Building,
but only with respect to the period ending with a subsequent transfer within the
meaning of this Article.
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36.02 Tenant shall look only to Landlord's estate and property in the
Building (including proceeds of insurance and condemnation) and, where expressly
so provided in this lease, to offset against the rents payable under this lease,
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 such
Landlord 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 Landlord and Tenant hereunder or Tenant's use or occupancy
of the Demised Premises.
ARTICLE 37
CERTAIN DEFINITIONS AND CONSTRUCTION
37.01 For the purposes of this lease and all agreements supplemental to
this lease, unless the context otherwise requires the definitions set forth in
EXHIBIT E annexed hereto shall be utilized.
37.02 The various terms which are bolded or underlined and defined in
other Articles of this lease or are defined in Exhibits annexed hereto, shall
have the meanings specified in such other Articles and such Exhibits for all
purposes of this lease and all agreements supplemental thereto, unless the
context shall otherwise require.
ARTICLE 38
ADJACENT EXCAVATION AND CONSTRUCTION; SHORING; VAULTS
38.01 If an excavation or other substructure work 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
shall be necessary to preserve the wall of or the Building from injury or damage
and to support the same by proper foundations without any claim for damages or
indemnity against Landlord, or diminution or abatement or rent.
38.02 No vaults, vault space or area, whether or not enclosed or
covered, not within the property line of the Building is leased hereunder,
anything contained in or indicated on any sketch, blue print or plan or anything
contained elsewhere in this lease to the contrary notwithstanding. Landlord
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, Landlord 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.
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ARTICLE 39
RIGHT OF FIRST OFFER
39.01 For the purposes of this Article, the rentable area of the entire
fifteenth (15th), sixteenth (16th) and twenty-second (22nd) floors of the
Building, substantially shown in hatching on Exhibit K hereto (which by this
reference is made a part hereof) is hereinafter referred to as the "SUBJECT
SPACE." If at any time during the term of this lease, Landlord intends to lease
to a "bona fide third party tenant" (as hereinafter defined) all or any portion
of the Subject Space (the portion of the Subject Space that Landlord so intends
to lease at the time in question being hereinafter referred to as the "OFFER
SPACE"), then, provided that at such time this lease is in full force and effect
and no Event of Default exists, Landlord shall give to Tenant notice of
Landlord's intention to so lease the Offer Space (the "OFFER SPACE NOTICE")
setting forth the material terms and conditions upon which Landlord is willing
to lease the Offer Space. The Offer Space Notice shall set forth the following
terms (the "OFFER TERMS"): (a) the commencement date of the proposed letting
(the "OFFER SPACE LEASE COMMENCEMENT DATE") and the expiration date of the
proposed letting (the "OFFER SPACE LEASE EXPIRATION DATE"), which shall be,
subject to the provisions of Section 39.06, the Expiration Date of this lease,
(b) the annual rental payable during the Offer Space Term (as hereinafter
defined), (c) any material additional rent payable with respect to the Offer
Space, including, without limitation, any additional rent related to increases
in real estate taxes or operating expenses for the Building, increases in any
price index or wage or labor rate, and any sprinkler or water charges, (d) the
dollar amount of any work which Landlord is willing to perform or pay for in the
Offer Space (including performing in the Offer Space any Landlord's Work, to the
extent not previously performed in the Offer Space), (e) any concession or free
rent period applicable to the proposed letting, (f) any other terms and
conditions which Landlord deems material, (g) the rentable area of the Offer
Space (which rentable area shall be reasonably determined by Landlord in good
faith, in a manner consistent with the method used to measure the rentable area
of the Demised Premises and shall be conclusive and binding upon Tenant), and
(h) a floor plan of the Offer Space. During the ten (10) business day period
commencing on the date that Landlord gives the Offer Space Notice to Tenant,
Tenant shall have the option (the "OFFER SPACE OPTION") to lease the Offer Space
from Landlord for the period (the "OFFER SPACE TERM") commencing on the Offer
Space Lease Commencement Date and expiring on the Offer Space Lease Expiration
Date. Tenant shall exercise the Offer Space Option by giving Landlord notice
thereof (the "EXERCISE NOTICE") on or before the last day of such ten (10)
business day period (which last day is hereinafter referred to as the "EXERCISE
NOTICE Date"), TIME BEING OF THE ESSENCE.
39.02 Tenant shall not have the Offer Space Option if at the time Landlord
intends to lease the Offer Space to a bona fide third-party tenant, (a) this
lease is not in full force and effect, or (b) an Event of Default exists.
39.03 Notwithstanding anything contained in this Article to the contrary,
the Offer Space Option shall be deemed revoked, null and void, and of no further
force or effect, and the Exercise Notice (or purported Exercise Notice) given in
connection with Tenant's attempt to exercise the Offer Space Option shall be
ineffective and void AB INITIO as an Exercise Notice, (a) if Tenant fails to
give the Exercise Notice to Landlord on or before the Exercise Notice Date,
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TIME BEING OF THE ESSENCE, in the manner hereinbefore provided (except as
otherwise expressly provided in Section 39.06 below), or (b) if the notice given
to Landlord amends, modifies or supplements (or attempts or purports to amend,
modify or supplement) any of the Offer Terms set forth in the Offer Space
Notice, or (c) if at the time of the giving of the Exercise Notice, this lease
is not in full force and effect, or there exists an Event of Default, or (d) if
Tenant fails to duly execute, acknowledge and deliver to Landlord a lease
agreement or amendment of this lease (in either case an "OFFER SPACE LEASE")
with respect to the Offer Space, prepared by Landlord and substantially in the
form and content set forth in Section 39.04 below, within ten (10) business days
after Landlord delivers counterparts of the Offer Space Lease to Tenant, or (e)
if the guarantors under any guaranty in respect of this lease or the Demised
Premises fail to duly execute, acknowledge and deliver to Landlord, together
with the Offer Space Lease, an amendment to such guaranty, prepared by Landlord,
which covers the Offer Space Lease and the Offer Space, or (f) if on the Offer
Space Lease Commencement Date, this lease is not in full force and effect or
there exists an Event of Default.
39.04 If Tenant shall give the Exercise Notice to Landlord on or before
the Exercise Notice Date, TIME BEING OF THE ESSENCE, and in the manner set forth
in Section 39.01 above, the parties hereto shall enter into the Offer Space
Lease with respect to the Offer Space, which Offer Space Lease shall contain all
of the same terms, covenants and conditions contained in this lease, except
that:
(a) Those terms and conditions set forth in the Offer Space Notice
that are expressly different than the corresponding provisions in this lease,
shall supersede and replace such corresponding provisions, or shall modify such
corresponding provisions accordingly, excluding Article 2 of this lease
(Landlord hereby agreeing that Article 2 of this lease shall govern) and
regardless whether the Offer Terms included a security deposit, no additional
security deposit shall be required under the Offer Space Lease;
(b) Those terms and conditions set forth in the Offer Space Notice
that are in addition to the terms and conditions of this lease, shall be added
to the Offer Space Lease;
(c) Articles 4, this 39 and 41 and Exhibit G (to the extent that
Landlord's Work has not been previously performed in the Offer Space) of this
lease shall be omitted, unless the Offer Space Notice provides otherwise (in
which case such provisions shall be amended accordingly) and the Offer Space
Lease shall provide that Tenant has inspected the Offer Space, is fully familiar
with the condition thereof, shall accept possession of the Offer Space on the
Offer Space Lease Commencement Date in its then "as-is" condition and
acknowledges that neither Landlord, nor any of Landlord's representatives agents
or employees, has made any representations or warranties with respect to the
Offer Space, except to the extent the Offer Space Notice provides otherwise, in
which case such provisions shall be amended accordingly; and
(d) The Offer Space Lease shall contain a provision, and this
lease shall be amended to contain a provision, that a default of any of the
terms, covenants or conditions of the Offer Space Lease or this lease, as the
case may be, on Tenant's part to observe, perform or
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comply with (after any required notice and the expiration of any applicable cure
period), shall be an "Event of Default" under both this lease and the Offer
Space Lease;
(e) The Offer Space Lease shall provide that the Offer Space may
be serviced by the Equipment (as defined in Article 41 below), but the Offer
Space Lease shall not contain a separate provision similar to said Article 41;
and
(f) Article 40 of this lease shall be incorporated into the Offer
Space Lease if the Extension Option (as hereinafter defined) has not then been
exercised.
39.05 Notwithstanding anything contained in this Article to the contrary,
the Offer Space Option shall apply only to, and may not be exercised by any
person or entity other than, the Tenant expressly named in this lease or a
Related Entity to the Tenant expressly named in this lease or a successor to the
Tenant named herein (or to a Related Entity of the Tenant named herein) after a
Stock Transfer, provided the Tenant expressly named herein or such Related
Entity or such successor is the then Tenant under this lease and occupies, on
its own behalf, at least 57,000 rentable square feet of the Demised Premises.
(Notwithstanding the foregoing, until the Demised Premises comprises 57,000
rentable square feet (or more), such 57,000 rentable square foot requirement
shall be reduced to the actual number of rentable square feet of the Demised
Premises.) In addition, the Offer Space Option shall apply only to the first
letting of each Offer Space after the date hereof and shall not apply to any
Offer Space in respect of which an Offer Space Option has been waived, rejected
or revoked or deemed to have been waived, rejected or revoked. For the purposes
of this Article, a "BONA FIDE THIRD PARTY TENANT" shall mean any person or
entity with whom Landlord has no direct or indirect relationship (other than as
a prospective tenant of the Building) that is leasing such space for its own
use. Therefore, Tenant shall have no Offer Space Option if Landlord desires or
intends to lease the Offer Space to a person or entity that is not a bona fide
third-party tenant. Landlord makes no representation or warranty as to the
present or future availability of the Subject Space, except that Landlord
represents to Tenant that no existing tenant of any of the Offer Space has any
right or option to extend its lease of its portion of the Offer Space..
39.06 If Landlord gives to Tenant the Offer Space Notice and if Tenant
fails to give the Exercise Notice to Landlord on or before the Exercise Notice
Date and in the manner hereinbefore provided, and thereafter Landlord intends to
lease the Offer Space to a bona fide third party tenant at a net effective rent
(the "THIRD PARTY NER") that is less than ninety-five (95%) percent of the net
effective rent reflected in the Offer Space Terms (the "OFFER SPACE NER"), then,
subject to and in accordance with the provisions of this Article, Landlord shall
give to Tenant a new Offer Space Notice, and Tenant shall have the Offer Space
Option with respect to such new Offer Space Notice, as set forth above, except
that the new Offer Space Notice shall set forth such new terms and conditions.
Tenant hereby acknowledges and agrees that the term for which Landlord intends
to lease the Offer Space to a bona fide third party tenant may be greater than
or less than the Offer Space Term and that in such case, for the purpose of
comparing the Third Party NER to the Offer Space NER, Landlord shall, in good
faith, adjust the Third Party NER, to the extent necessary, to what the Third
Party NER would have been if the term for which Landlord intended to lease the
Offer Space to a bona fide third party tenant were
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the Offer Space Term. For the purposes of this Section, "NET EFFECTIVE RENT"
shall mean, on a dollar per rentable square foot basis, the present value of the
projected future rent payments, including escalations, free rent and amortized
landlord concessions, expressed as an equivalent annuity over the lease term or
the remaining portion of the lease term, using the same discount rate (expressed
monthly or annually) for all calculations. The dollar cost per rentable square
foot is calculated by dividing the actual gross annuity amount by the rentable
area in question.
39.07 If for any reason, the Offer Space Option is not exercised in
accordance with, and subject to, the applicable provisions of this Article, or
is waived, rejected or revoked or deemed waived, rejected or revoked, Landlord
may, but shall not be obligated, at any time or from time to time, lease,
license or otherwise permit the use of, all or any portions of the Offer Space
upon any terms and conditions that are acceptable to Landlord.
39.08 Except as expressly set forth in this lease, Tenant shall not have
any option to lease the Offer Space or any portions thereof or any other portion
of the Building except for the Phase II Portion, the Phase III Portion and the
Phase IV Portion.
ARTICLE 40
EXTENSION OPTION
40.01 Tenant shall have the option (the "EXTENSION OPTION") to extend the
term of this lease for a term (the "EXTENSION TERM") of five (5) years to
commence on the date (the "EXTENSION TERM COMMENCEMENT DATE") next succeeding
the Expiration Date and to expire on the date (the "EXTENSION TERM EXPIRATION
DATE") which is the fifth (5th) anniversary of the Expiration Date, which
Extension Option shall be exercised only by Tenant giving to Landlord notice
thereof (the "EXTENSION EXERCISE NOTICE") on or before the date (the "EXTENSION
EXERCISE NOTICE DATE") which is eighteen (18) months prior to the Expiration
Date, TIME BEING OF THE ESSENCE.
40.02 Notwithstanding anything contained in this lease to the contrary,
Tenant shall not have the Extension Option if on the date Tenant gives to
Landlord the Extension Exercise Notice, (a) this lease is not in full force and
effect, or (b) an Event of Default exists.
40.03 In addition to the provisions of Section 40.02 above, and
notwithstanding anything contained in this lease to the contrary, the Extension
Option shall be deemed revoked, null and void, and of no further force or
effect, and the Extension Exercise Notice (or purported Extension Exercise
Notice) given in connection with Tenant's attempt to exercise the Extension
Option shall be ineffective and void AB INITIO as an Extension Exercise Notice,
(a) if Tenant fails to give the Extension Exercise Notice to Landlord on or
before the Extension Exercise Notice Date (TIME BEING OF THE ESSENCE) in the
manner hereinbefore provided, or (b) if at the time of the giving of the
Extension Exercise Notice, this lease is not in full force and effect, or there
exists an Event of Default, or (c) if the guarantors under any guaranty in
respect of this lease or the demised premises fail to duly execute, acknowledge
and deliver to Landlord within ten (10) days after Landlord's request therefor,
an amendment to such guaranty, prepared by Landlord, which covers the Extension
Term, or (d) if prior to the Extension Term
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Commencement Date, this lease or the term hereof has ended, expired or is not
otherwise in full force and effect, or an Event of Default occurs.
Notwithstanding anything contained in this lease which may be deemed to the
contrary, if Tenant exercises the Extension Option, but prior to the Extension
Term Commencement Date, this lease or the term hereof has ended, expired or is
not otherwise in full force and effect as a result of any Event of Default,
then, solely for the purposes of calculating the damages to which Landlord is
entitled under Articles 25, 26 and 27 of this lease, the term of this lease
shall be deemed to have been extended by the Extension Term, and the annual
Extension Rent (as hereinafter defined) for the Extension Term shall be deemed
to be the fixed rent in effect on the last day of the initial term of this
lease, without taking into account any abatements thereof under Article 9 hereof
or otherwise.
40.04 The Extension Term, if any, shall be upon, and subject to, all of
the terms, covenants and conditions provided in this lease for the initial term
hereof (including, without limitation, subsections 5.01(b) and 5.07(c)), except
that:
(a) any terms, covenants, or conditions hereof that are expressly
or by their nature inapplicable to the Extension Term (including, without
limitation, Articles 4, 39, this 40 and Exhibit G hereof) shall not apply during
the Extension Term; and
(b) the annual fixed rent payable by Tenant during the Extension
Term (hereinafter referred to as the "EXTENSION RENT") shall, subject to
adjustment as otherwise in this lease provided, be an amount equal to
ninety-five (95%) percent of the fair market rental value of the Demised
Premises, to be determined as provided in Sections 40.05 and 40.06 hereof and to
be calculated as of the Extension Term Commencement Date on the basis of a new
letting of the Demised Premises for the Extension Term for a term of five (5)
years (but taking into account the fact that the Base Tax Year and the Base
Operational Year are not changed and taking into account the testimony and
documentary evidence, and the facts and data, referred to in subsection 40.06(d)
below). The amount which equal the fair market rental value of the Demised
Premises for the Extension Term is herein referred to as the "FMV AMOUNT."
40.05 The initial determination of the FMV Amount shall be made by
Landlord. Landlord shall give notice (a "RENT Notice") to Tenant of the proposed
FMV Amount on or before the date which is three (3)) months prior to the
Extension Term Commencement Date. The FMV Amount so determined by Landlord shall
be deemed conclusive and binding upon Tenant unless on or before the date (the
"DETERMINATION DATE") which is forty-five (45) days after Landlord gives to
Tenant the Rent Notice (a) Tenant gives to Landlord notice (the "DISPUTE
NOTICE") that Tenant disputes the FMV Amount so determined by Landlord, or (b)
Landlord and Tenant agree in writing (which agreement (an "FMV AGREEMENT") shall
be duly executed and delivered by Landlord and Tenant) upon the fixed rent for
the Extension Term. If Tenant sends to Landlord a Dispute Notice within the time
and in the manner hereinbefore provided, and if Landlord and Tenant fail to so
agree upon the fixed rent for the Extension Term, the FMV Amount for the
Extension Term shall be determined by arbitration pursuant to Section 40.06
below.
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40.06 If Tenant gives to Landlord a Dispute Notice in respect of the FMV
Amount so determined by Landlord as provided in Section 40.05 above, and
Landlord and Tenant fail to execute and deliver an FMV Agreement on or before
the Determination Date, then the FMV Amount for the Extension Term shall be
determined by arbitration as follows:
(a) Landlord and Tenant shall each appoint an arbitrator by
written notice given to the other party hereto not later than thirty (30) days
after the Determination Date, which arbitrators may then be regularly employed
or engaged by Landlord and Tenant. If either Landlord or Tenant fail to appoint
an arbitrator within such period of time and thereafter fail to do so by written
notice given within a period of five (5) days after notice by the other party
requesting the appointment of such arbitrator, then such arbitrator shall be
appointed by the American Arbitration Association or its successor (the branch
office of which is located in or closest to the City and State of New York),
upon request of either Landlord or Tenant, as the case may be;
(b) the two (2) arbitrators appointed as above provided shall
attempt to reach an agreement as to the FMV Amount, and in the event that they
are unable to do so within thirty (30) days after their joint appointment, then
they shall appoint a third (3rd) arbitrator by written notice given to both
Landlord and Tenant, and, if they fail to do so by written notice given within
sixty (60) days after their appointment, such third (3rd) arbitrator shall be
appointed as above provided for the appointment of an arbitrator in the event
either party fails to do so. Such third (3rd) arbitrator shall not then be
regularly employed or engaged by either Landlord or Tenant or any of their
respective affiliates;
(c) all of such arbitrators shall be New York State licensed real
estate brokers having not less than ten (l0) years experience in representing
owners or tenants in commercial leasing transactions in respect of first-class
office buildings in midtown Manhattan; and
(d) the arbitrators, selected as aforesaid, forthwith shall
convene and render their decision in accordance with the then applicable rules
of the American Arbitration Association or its successor, which decision shall
be strictly limited to a determination of the FMV Amount (as defined in Section
40.04 above), within thirty (30) days after the appointment of the second (2nd)
arbitrator or the third (3rd) arbitrator, as the case may be. The decision of
such arbitrators shall be in writing. If the first two (2) arbitrators appointed
as above provided reach an agreement as to the FMV Amount, said agreement shall
be the decision of the arbitrators. If a third (3rd) arbitrator is appointed as
above provided, then such third (3rd) arbitrator's decision shall be limited to
selecting the determination of the FMV Amount made by either the first (1st)
arbitrator or the second (2nd) arbitrator. Insofar as the same is in compliance
with the provisions and conditions of this Article, the decision of the
arbitrators shall be binding upon Landlord and Tenant. Duplicate original
counterparts of such decision shall be sent forthwith by the arbitrators by
certified mail, return receipt requested, to both Landlord and Tenant. The
arbitrators, in arriving at their decision (including the third (3rd)
arbitrator, notwithstanding the fact that the third (3rd) aribtrator's decision
is limited as hereinbefore provided), shall be entitled to consider all
testimony and documentary evidence that may be presented at any hearing, as well
as facts and data which the arbitrators may discover by
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investigation and inquiry outside such hearings. If, for any reason whatsoever,
a written decision of the arbitrators shall not be rendered within thirty (30)
days after the appointment of the third (3rd) arbitrator, then, at any time
thereafter before such decision shall have been rendered, either party may apply
to the Supreme Court of the State of New York or to any other court having
jurisdiction and exercising the functions similar to those now exercised by such
court, by action, proceeding or otherwise (but not by a new arbitration
proceeding) as may be proper, to determine the question in dispute consistently
with the provisions of this lease. The cost and expense of such arbitration,
action, proceeding, or otherwise shall be borne equally by Landlord and Tenant,
but Landlord and Tenant shall each pay their own attorneys' fees and
disbursements and witnesses fees.
40.07 If Tenant gives to Landlord a Dispute Notice in respect of the FMV
Amount so determined by Landlord as provided in Section 40.05, and the fixed
rent for the Extension Term shall not be finally determined pursuant to the
terms of Section 40.05 or 40.06 hereof on or before the Extension Term
Commencement Date, then:
(a) The annual fixed rent payable by Tenant during the Extension
Term until the fixed rent for the Extension Term shall be so finally determined
shall, subject to adjustment as herein provided, be equal to the annual fixed
rent, Tax Payment and Operating Expense Payment in effect on the last day of the
initial term of this lease, without taking into effect any abatement, offset or
reduction (collectively, the "EXTENSION MINIMUM RENT"); and
(b) If the fixed rent for the Extension Term, as finally
determined pursuant to the terms of Section 40.06 hereof, shall be greater or
less than the Extension Minimum Rent, then (i) the annual fixed rent payable by
Tenant for the balance of the Extension Term shall be and become the fixed rent
as so finally determined, and (ii) if the fixed rent for the Extension Term, as
so determined, shall be greater than the Extension Minimum Rent, Tenant shall,
within twenty (20) days after Landlord's demand therefor, pay to Landlord an
amount equal to the difference between (x) the sum of the actual fixed rent
payments paid to Landlord during the Extension Term before such final
determination and (y) the sum of the fixed rent payments that would have been
payable by Tenant if the fixed rent for the Extension Term had been finally
determined prior to the Extension Term Commencement Date; or if the fixed rent
for the Extension Term, as so determined, shall be less than the Extension
Minimum Rent, Landlord shall, within twenty (20) days after Tenant's demand
therefor pay to Tenant an amount equal to the difference between the sum of the
amount described in clause (x) above and the sum of the amount described in
clause (y) above. If Landlord does not pay such difference within such twenty
(20) day period and such failure continues for more than three (3) business days
after notice from Tenant that same is overdue, then such difference shall be
deducted from the next installment(s) of fixed rent and additional rent payable
hereunder.
40.08 If, in accordance with and subject to, all of the terms, covenants
and conditions contained in this Article, the term of this lease is extended for
the Extension Term, then "EXPIRATION DATE," as such term is used in this lease,
shall mean the "EXTENSION TERM EXPIRATION DATE," and "TERM OF THIS LEASE" (and
comparable words), shall mean the initial term of this lease, as extended by the
Extension Term. Notwithstanding anything which may be
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contained in this lease to the contrary, Landlord shall have no obligation or
duty, nor shall Landlord be required, to make any repairs, installations,
alterations or improvements to the Demised Premises or any portion thereof
(including, without limitation, painting, finishing, plastering or decorating),
with respect to the Extension Term, provided, however, that nothing contained in
this sentence shall affect Landlord's obligations to perform the repairs that
Landlord is expressly required to make under this lease. Except as expressly set
forth in this Article, Tenant shall not have any option or right to extend or
renew the term of this lease.
ARTICLE 41
SATELLITE DISH INSTALLATION
41.01 For the period (the "DISH TERM") commencing on the Commencement
Date and ending on the earlier of (a) the last day of the term of this lease,
and (b) the termination or revocation of license provided for in this Article
(such license being hereinafter referred to as the "DISH LICENSE"), Tenant shall
have the right, in accordance with, and subject to, the provisions of this
Article, to install, maintain, repair, use and operate on the roof of the
Building, at its sole cost and expense one (1) satellite dish and support
equipment (such satellite dish and support equipment being hereinafter
collectively referred to as the "EQUIPMENT"), which Equipment shall be cabled to
the Demised Premises through a riser designated by Landlord and shall not
penetrate the roof of the Building, subject to all of the applicable terms,
covenants and provisions of this Article, and subject to Landlord's prior
written approval (which approval shall not be unreasonably withheld, conditioned
or delayed) including, without limitation, approval as to location, which
approval shall also be required for modifications to, and the removal of, the
same. In connection with such installation, maintenance, repair, use and
operation (collectively, the "DISH PERMITTED USES"), Tenant shall comply with
all laws, ordinances, orders, rules, regulations and requirements of all
governmental and quasi-governmental authorities having jurisdiction of or over
the installation, maintenance, repair, use, operation or removal of the
Equipment, or the use of the Roof Space (as hereinafter defined) or any other
portion of the Building (collectively, "DISH LAWS"), regardless of whether such
compliance requires, at any time during the Dish Term, the making of alterations
to the Building (which alterations may only be made in accordance with, and
subject to, the applicable provisions of this Article) or other expenditures,
whether foreseen or unforeseen, ordinary or extraordinary; shall, prior to
commencing the installation of the Equipment, provide Landlord with a radiation
hazard analysis satisfactory to Landlord, and prior to commencing the
installation of the Equipment, and from time to time thereafter, but not more
frequently than once every three (3) years within ten (10) days after Landlord's
request therefor, provide Landlord with the affidavit of a licensed and
certified engineer, stating that the Equipment complies with the Dish Laws; and
shall procure, maintain and pay for all permits, certificates, consents,
authorizations and licenses required therefor, including all renewals thereof
(collectively, "DISH PERMITS"). All reasonable costs and expenses paid or
incurred by or on behalf of Landlord in connection with the Equipment, the
Installation (as hereinafter defined) and the Dish Permitted Uses, shall be
reimbursed to Landlord, from time to time, within fifteen (15) days after
Landlord gives to Tenant Landlord's itemized invoice therefor, together with
reasonable evidence of the amounts so paid or incurred by Landlord.
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41.02 (a) The portion of the roof of the Building on which the Equipment
are to be located, which portion shall be reasonably designated by Landlord and
shall be of sufficient size for the Equipment, is herein referred to as the
"ROOF SPACE." Tenant shall use the Roof Space for the Dish Permitted Uses, as
hereinbefore and hereinafter provided, and for no other purpose. Tenant shall
not make, or permit to be made, any alteration, installation, improvement,
substitution or addition to the Roof Space or any other portion of the Building,
except as expressly permitted under this lease.
(b) Tenant shall not cause or permit Hazardous Materials to be
used, transported, stored, released, handled, produced or installed in, on or
from the Roof Space. In the event of a breach of the provisions of this
subsection (b), Landlord shall, in addition to all of its rights and remedies
under this lease and pursuant to law, require Tenant to remove any or all of
such Hazardous Materials from the Roof Space in the manner prescribed for such
removal by all requirements of law.
41.03 Tenant shall not at any time use or occupy, or suffer or permit
anyone to use the Roof Space or any other portion of the Building, or do or
permit anything to be done in the Roof Space or in any other portion of the
Building, which would (a) have a material adverse effect on, in the reasonable
judgment of Landlord, (i) the proper and economical rendition of any service
required to be furnished to any tenant or other occupant or user of portions of
the Building, (ii) the use or enjoyment of any part of the Building by any other
tenant or other occupant or user of portions of the Building, or (iii) the
appearance, character or reputation of the Building as a first-class facility,
or (b) violate the Certificate of Occupancy for the Building or any Dish Laws
(including zoning and building codes) or the Dish Permits.
41.04 (a) Before commencing the installation of the Equipment or any other
alterations, improvements, additions or other work or changes related thereto
(such installation and other alterations, improvements, additions and other work
and changes being hereinafter referred to as the "INSTALLATION"), Tenant, at its
sole cost and expense, shall prepare and submit to Landlord for Landlord's
approval, reasonably detailed plans and specifications therefor, which approval
shall not be unreasonably withheld, conditioned or delayed. The cost and expense
reasonably incurred and/or paid by Landlord in connection with the review of
said plans and specifications (and all revisions thereto), and the inspection of
the work in respect thereof, by Landlord and Landlord's architects, engineers
and other consultants and professionals shall be reimbursed by Tenant to
Landlord within fifteen (15) days after Landlord gives to Tenant Landlord's
itemized invoice therefor (together with reasonable evidence of the amounts so
paid or incurred by Landlord), Tenant hereby agreeing that neither Landlord's
approval of plans or specifications, nor its inspection of such work, nor its
right to inspect such work, shall impose upon Landlord any obligation or
liability whatsoever with respect thereto, including, without limitation, any
obligation or liability that might arise as a result of such work not being
performed in accordance with applicable laws and requirements or with the plans
and specifications approved by Landlord or otherwise. Landlord may, as a
condition of its approval, require Tenant to make revisions in and to such plans
and specifications. Landlord shall respond, in reasonable detail, to Tenant's
request to approve said plans and specifications within ten (10) business days
after Landlord receives a complete set of said plans and specifications, and
Landlord shall respond, in reasonable detail, to Tenant's request to approve
revisions to said
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plans and specifications within seven (7) business days after Landlord receives
such revisions. Landlord's approval to any of said plans and specifications or
revisions thereto shall not be effective unless same is in writing. If within
seven (7) business days after Landlord receives a complete set of said plans and
specifications (or if within seven (7) business days after Landlord receives any
requested revisions thereto), Landlord fails to respond to Tenant's request for
Landlord's approval thereof (whether by granting or denying such approval or by
requesting revisions or further revisions), Tenant shall give to Landlord a
second (2nd) notice notifying Landlord that if within three (3) business days
after Landlord's receipt of such second (2nd) notice Landlord fails to respond
to Tenant's request for such approval, such failure shall be deemed the granting
of such approval. Thereafter, if Landlord fails to respond to Tenant's request
for such approval within such three (3) business day period (whether by granting
or denying such approval or by requesting revisions or further revisions to said
plans and specifications), such approval shall be deemed given, but only to the
plans and specifications (or revisions) so submitted. Tenant shall not use,
employ or retain any contractor or mechanic, or permit the use, employment or
retention of any subcontractor, that has not been first approved by Landlord,
which approval shall not be unreasonably withheld, conditioned or delayed.
(b) Before commencing the Installation, Tenant shall, at its
expense, obtain all permits, notices, approvals and certificates required by all
governmental and quasi-governmental authorities for the commencement and
prosecution thereof, and, upon completion, for the final approval thereof, and
shall cause the Installation to be performed in compliance therewith, as well as
with all applicable laws and requirements of public authorities and all
applicable requirements of insurance bodies, in a good and workmanlike manner,
using new materials and equipment. Duplicates of all such permits, notices,
approvals and certificates shall be delivered to Landlord before commencing the
Installation, and upon the completion thereof, as the case may be. The
Installation shall be performed in such a manner as not to unreasonably
interfere with or delay, and (unless Tenant shall indemnify Landlord therefor to
the Landlord's reasonable satisfaction) as not to impose any additional expense
upon Landlord in, the maintenance or operation of the Building. Throughout the
performance of the Installation and the performance of any repair or maintenance
work to the Equipment, Tenant shall, at its expense, carry, or cause to be
carried, worker's compensation insurance in statutory limits and general
liability insurance and personal and property damage insurance for any
occurrence in or about the Building as set forth in Article 11 of this lease.
All such insurance policies shall name Landlord, each Present Additional Insured
and all other additional insureds requested by Landlord, and their respective
agents as additional insureds, be in such limits as Landlord may reasonably
prescribe and be placed with insurers reasonably satisfactory to Landlord.
Tenant shall furnish Landlord with satisfactory evidence that such insurance is
in effect before the commencement of the Installation and, on request, at
reasonable intervals thereafter during the performance of the Installation.
(c) Tenant shall, at its expense and with diligence and dispatch,
procure the cancellation or discharge of all notices of violation arising from,
or otherwise directly connected with, the Installation that shall be issued by
the Department of Buildings or any other public or quasi-public authority having
or asserting jurisdiction. Tenant shall defend, indemnify and save Landlord
harmless from and against all mechanic's and other liens filed in connection
with the Installation or for any other work claimed to have been done for, or
materials furnished to,
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Tenant, pursuant to this Article, including, without limitation, the liens of
any security interest in, conditional sales of, or chattel mortgages upon, any
materials, fixtures or articles so installed in and constituting part of the
Building, and against all costs, expenses and liabilities incurred or paid 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 satisfy or discharge all such liens (by bonding or otherwise), and remove
same from the record, within thirty (30) days after Landlord makes written
demand therefor
(d) The Installation, as well as the maintenance, repair and
operation of the Equipment, shall be done in a manner so as not to: (i) create
any work stoppage, picketing, labor disruption, or dispute; (ii) violate
Landlord's union contracts affecting the Building or the land on which it is
located; or (iii) unreasonably or materially interfere with the business of
Landlord or any tenant or occupant of the Building. In the event of the
occurrence of any condition described above, Tenant shall, promptly upon notice
from Landlord, cease whatever it is doing that is giving rise to such condition.
In the event that Tenant fails to cease whatever it is doing that is giving rise
to such condition as aforesaid, Landlord, in addition to any rights available to
it under this Article, at law or equity, shall have the right to injunction
without notice. Tenant shall make all arrangements for, and pay all expenses
incurred in connection with, use of the freight elevators of the Building,
subject to the provisions of Section 13.08 above, including the last sentence
thereof, but, with respect to such last sentence, only to the extent that the
Installation is performed during Tenant's Work.
41.05 Intentionally Deleted Prior to Execution.
41.06 All of Tenant's obligations and liabilities under Article 11 of this
lease (subject, however, to Section 11.03) shall apply to the Equipment and the
Roof Space as if the Roof Space were a part of the Demised Premises. In
addition, Tenant shall procure, maintain and pay for such liability and property
damage insurance as Landlord shall reasonably require in connection with the
Installation and the, maintenance, repair and operation of the Equipment, in
form, substance and with limits of liability reasonably approved, in writing, by
Landlord. Tenant shall have Landlord, the holders of all superior mortgages, the
lessors under all superior leases, the agents and representatives of all of the
foregoing and all other entities and persons reasonably designated by Landlord,
named as additional insureds on all such insurance policies.
41.07 Other than the electricity that Landlord is expressly obligated to
supply to the Demised Premises pursuant to Article 16 of this lease, Landlord
shall not be obligated to provide any additional electricity for the operation
of the Equipment. Subject to Section 19.01 above, Tenant, at its sole cost and
expense, shall bring the electricity required to operate the Equipment from the
Demised Premises to the Roof Space, in accordance with, and subject to, the
provisions of Section 16.04 of this lease. The electricity used for the
operation of the Equipment shall be part of "Usage" (as such term is defined and
used in Article 16 of this lease) and Tenant shall pay for such Usage in
accordance, and subject to, the provisions of said Article 16.
41.08 (a) Tenant covenants and agrees that the installation, maintenance,
repair, operation and removal of the Equipment on the roof of the Building or in
any other part of the Building shall be at the sole risk of Tenant. Neither
Landlord, nor any agent or employee of
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Landlord, nor any person or entity claiming by, through or under Landlord or
such agent or employee, shall be responsible or liable for any injury or damage
to, or loss of, the Equipment, by reason of theft, fire or other casualty, or
otherwise, whether or not resulting from any negligent acts or omissions.
Tenant, at Tenant's sole cost and expense, shall promptly repair any and all
damage to the roof of the Building and to any part of the Building caused by or
resulting from the installation, maintenance, repair, operation or removal of
the Equipment, and shall promptly maintain the Equipment in good working
condition, and promptly make all repairs thereto and replacements thereof;
provided, however, that all maintenance, repair and replacement work shall be
performed only by a contractor or contractors reasonably designated or approved
by Landlord. If Tenant fails to so maintain, or make any repairs to or
replacements of, the Equipment, the roof of the Building or any other part of
the Building, Landlord may, but shall not be obligated to, perform such
maintenance or make such repairs or replacements, and Tenant shall reimburse
Landlord for all reasonable costs and expenses paid or incurred by Landlord as a
result thereof, within fifteen (15) days after Landlord gives to Tenant
Landlord's itemized invoice therefor, together with reasonable evidence of the
amounts so paid or incurred by Landlord.
(b) Tenant shall indemnify and hold Landlord harmless from and
against any and all actions, proceedings, liabilities, obligations, claims,
damages, deficiencies, losses, judgments, suits, expenses and costs (including,
without limitation, reasonable legal fees and disbursements) in connection with
or resulting from the Dish Permitted Uses or the presence or removal of the
Equipment or other use thereof. Tenant further covenants and agrees that the
Equipment and any related equipment erected or installed by Tenant pursuant to
the provisions of this Article shall be erected, installed, repaired, maintained
and operated by Tenant at the sole cost and expense of Tenant and without
charge, cost or expense to Landlord.
(c) Tenant hereby acknowledges that Landlord has made no
representations or warranties as to whether the roof of the Building is suitable
for the installation, maintenance or operation of the Equipment, or whether the
Equipment can be used for its intended purpose.
41.09 The parties agree that Tenant's use of the roof of the Building is
non-exclusive and Landlord may use, and/or permit any other person or entity to
use, any other portion of the Building for any purpose, including the
installation of other satellite dishes, antennae, generators and/or
communications systems. Tenant shall not permit its use of the roof of the
Building, or the installation, operation, maintenance, repair or removal of the
Equipment, to impair, unreasonably interfere with or materially adversely affect
Landlord's or such other person's or entity's data transmission and reception
via their respective antennas or satellite dishes, and support equipment, if
any, or to interfere with or adversely affect the operation or use of any of the
Building's systems or services, and Landlord shall use commercially reasonable
efforts to cause the antennas and satellite dishes of others on the roof of the
Building not to unreasonably interfere with the transmission from, or reception
to, the Equipment. In no event shall the maximum level of microwave emissions
from the Equipment, when combined with all other microwave emissions from the
Building, exceed an amount equal to the total microwave emissions allowable for
the Building as determined by the governmental authorities having jurisdiction
thereof. Tenant's use of the roof of the Building for the Dish Permitted Uses
shall be without charge to Tenant, except as otherwise expressly provided in
this lease.
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41.10 Tenant acknowledges that it is fully familiar with the condition of
the roof of the Building, and that it has examined, investigated and inspected
the roof of the Building (or has had adequate opportunity to have examined,
investigated and inspected the roof of the Building) and has had adequate
opportunity to conduct such further examinations, investigations and inspections
of the roof of the Building as it deemed necessary or desirable. Neither
Landlord, nor any of its agents or representatives, has made or does make any
representations or warranties as to the physical condition of the roof, or as to
whether any portion of the roof (including the Roof Space) can be used for the
installation or operation of an antenna or satellite dish, or as to whether any
laws, orders, regulations, directions, rules or requirements permit, prohibit,
restrict or limit Tenant in any way to so install and operate, or from so
installing and operating, an antenna on the Roof Space or any other portion of
the Building, or as to whether any of the required permits, certificates,
consents, authorizations and licenses will be issued or given.
41.11 Nothing contained in this Article, including, without limitation,
the incorporation or application of certain provisions of this lease to the
installation, operation and maintenance of the Equipment and the Roof Space,
shall grant (or be deemed to have granted) any leasehold or other possessory
rights, title, estates or interests in or to the Roof Space or any other portion
of the Building. Tenant's use of the Roof Space, and its right to install,
operate and maintain the Equipment, is a license, and shall be subject to
Section 713, Paragraph 7 of the New York Real Property Actions and Proceedings
Law and all other applicable laws. Landlord may, by giving notice to Tenant,
temporarily or permanently revoke the within license (a) in order to allow the
making of any and all repairs, replacements, changes, modifications,
improvements, decorations or substitutions (collectively, "REPAIRS") to the Roof
Space or any other portion of the Building, which Landlord, in Landlord's
discretion, deems necessary or desirable, (b) if the whole or any portion of the
Roof Space or the Building shall be damaged or destroyed by fire or other
casualty, or acquired or condemned for any public or quasi-public use or
purpose, (c) if Landlord is temporarily or permanently prohibited, prevented or
limited from permitting Tenant to use the Roof Space on account of any law,
order, regulation, direction, rule or requirement or by reason of strikes, labor
troubles, accidents, inability to obtain insurance at commercially reasonable
rates, repairs or any other cause beyond Landlord's reasonable control, or (d)
if Tenant's maintenance, use or operation of the Equipment impairs, unreasonably
interferes with or materially adversely affects Landlord's or any other person's
or entity's data transmission or reception via their respective antennae or
satellite dishes, and support equipment (other than antennae or satellite dishes
of other tenants of the Building that are installed on the roof of the Building
after the installation of the Equipment), or the proper operation or use of any
of the Building's systems or services (all of the foregoing described in clauses
(a) through (d) being hereinafter collectively referred to as "UNAVOIDABLE
EVENTS", and individually as an "UNAVOIDABLE EVENT"). If in connection with any
Unavoidable Event, Landlord temporarily revokes the within license, then this
Article and the obligations of Tenant to observe, perform and comply with all of
the terms, covenants and conditions in this Article on Tenant's part to observe,
perform and comply with, shall not be affected, impaired or excused on account
thereof. If in connection with any of the foregoing, Landlord does not so revoke
the within license, Landlord shall use reasonable efforts to minimize
interference with Tenant's operation of the Equipment during the time that the
Repair is being performed, the Roof Space is being repaired in connection with
such fire, other casualty, acquisition or condemnation, or the Unavoidable
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Event is being corrected, as the case may be. If Landlord permanently revokes
the within license, Landlord shall not be subject to any liability nor shall
Tenant be entitled to any compensation or abatement of the rent or additional
rent under this lease, nor shall such revocation be deemed a constructive or
actual eviction from any portion of the Demised Premises. Notwithstanding
anything contained in this Section to the contrary, Landlord may not permanently
revoke the within license if upon the completion of the Repair, the completion
of any repair in respect of such fire, other casualty, acquisition or
condemnation, or the completion of such correction, as the case may be, the roof
of the Building continues to be used for the installation and operation of an
antenna or satellite dish by tenants of the Building, in which case, if the
existing Roof Space is not available for the Equipment, then Landlord shall
designate new Roof Space..
41.12 Landlord reserves the right, without any liability to Tenant, to
stop service of any systems or services serving the Roof Space or the Equipment,
or the rendition of any of the other services required of Landlord under this
Article, whenever and for so long as may be necessary, by reason of accidents,
emergencies, strikes or the making of repairs or changes which Landlord is
required by this Article 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. If Landlord stops any such service or system or
the rendition of any of such other services, and such event materially
interferes with Tenant's use of the Equipment, then Landlord shall use
commercially reasonable efforts to resume the service or system as soon as
possible , except that nothing contained in this lease shall require Landlord to
incur overtime costs or expenses or other bonus or incentive fees to perform
work on a fast-track or expedited basis.
41.13 Tenant shall give notice to Landlord, promptly after Tenant learns
thereof, of (a) any accident in or about the Roof Space or related to the
Equipment, (b) all fires in or to the Roof Space or any of the Equipment, (c)
all damages to or defects in the Roof Space.
41.14 Notwithstanding anything to the contrary contained in this, Landlord
shall have no obligation to repair any damage to, or to replace the Equipment or
any fixtures, furniture, furnishing, equipment or other property or effects of
Tenant related to the Equipment.
41.15 Tenant shall not directly or indirectly, by operation of law, or
otherwise, assign or otherwise transfer the Dish License or its rights under
this Article, or underlet, sublet, or sublicense, the Dish License, any of such
rights, or any portion of the Roof Space. Tenant acknowledges and agrees that
the Dish License and the rights granted to Tenant pursuant to this Article, are
granted exclusively for the enjoyment of Tenant hereunder, and for no other
persons or entities and only during such time as such Tenant is the tenant under
this lease. Under no circumstances may Tenant charge for the use of the
Equipment. Except as set forth in the preceding sentence, if Tenant assigns any
of its right, title or interest in this lease, or sublets, or permits any person
or entity to use, any portion of the Roof Space, then the Dish License and all
such rights shall be revoked and terminated on the effective date of such
assignment or the commencement date of such sublease or use, as the case may be.
41.16 The Equipment and related equipment installed by Tenant pursuant to
the provisions of this Article shall be and remain Tenant's property, and, upon
the expiration of the
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Dish Term, or such earlier date selected by Tenant, shall be removed by Tenant,
at Tenant's sole cost and expense, and Tenant shall repair any damage to the
roof of the Building, or any other portion or portions of the Building caused by
or resulting from said removal. If Tenant fails so to remove the Equipment and
related equipment, Landlord may remove same, as a duly authorized agent of
Tenant, and store the same in the name and at the expense and risk of Tenant or
those claiming through or under it, without in any way being liable for
conversion or negligence by reason of said acts of Landlord or anyone claiming
under it or by reason of the negligence of any person in caring for said
property while in storage. Any property of Tenant not removed on or before the
last day of the Dish Term shall be deemed abandoned in which event, at
Landlord's election, either (a) such property shall become the property of
Landlord without any further right in or claim by Tenant or (b) Landlord may
remove such property from the Roof Space and the Building and dispose of such
property in Landlord's sole discretion, all at the expense of Tenant.
41.17 If prior to the expiration of the term of this lease, all or
substantially all of the Equipment has been removed and not replaced within one
(1) year after such removal, the Dish License shall be permanently terminated
and revoked as of the last day of such one (1) year period.
41.18 Landlord, upon thirty (30) days' prior written notice to Tenant, may
reasonably relocate the Equipment and related equipment to other areas of the
Building and roof thereof, which relocation shall be at Landlord's cost and
expense (except as hereinafter provided), and which right of relocation shall be
in addition to any and all of Landlord's other rights and remedies available at
law or in equity if the necessity therefor results from any failure of Tenant to
observe, perform or comply with any of the terms, covenants or conditions
contained in this Article. If the necessity of such relocation results from such
failure, then the cost and expense of such relocation shall be paid by Tenant to
Landlord within fifteen (15) days after Landlord's demand therefor.
41.19 Landlord shall have the right to assign or transfer its obligations
under this Article, separate and apart from its interest, obligations and
liabilities in, under and to this lease, to an entity responsible for the
management of the roof of the Building, or any other third party, at any time,
and in such event the obligations of Landlord under this Article shall not be
binding upon the Landlord with respect to any period subsequent to the
assignment or transfer of its obligations under this Article or with respect to
the roof of the Building, and in the event of such assignment or transfer, said
obligations shall thereafter be binding upon each assignee or transferee or
subsequent assignee or transferee, but only with respect to the period ending
with a subsequent assignment or transfer within the meaning of this Section. If
such assignee or transferee shall request that Tenant enter into a direct
agreement between Tenant and such transferee or assignee evidencing the
agreements set forth herein Tenant hereby agrees to promptly execute and deliver
any such instrument that Landlord or such transferee or assignee may reasonably
request, provided that such agreement is upon substantially identical terms and
conditions as set forth in this Article, and shall not increase Tenant's
obligations hereunder or reduce its rights hereunder or under an SNDA, and
provided same shall be at no cost to Tenant other than the cost to review same.
In the event such direct agreement is executed, this Article shall thereupon be
terminated and be of no further force or effect.
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ARTICLE 42
EMERGENCY GENERATOR
42.01 Landlord agrees that in the event Landlord shall furnish and install
an emergency generator or similar back-up energy supply system in the Building
(a "GENERATOR") then, to the extent that the Generator has sufficient excess
capacity (the "EXCESS CAPACITY") beyond the capacity that Landlord determines is
necessary to operate the elevators, heating, ventilating and air conditioning,
common area electric and other Building services or systems, Tenant shall be
permitted, at its sole cost and expense, to connect to the Generator (in a
location and in a manner designated by Landlord, Landlord reserving the right to
require Tenant to utilize Landlord's designated contractor to perform the work
related to such connection, provided that Landlord's contractor's prices are
competitive) to utilize an amount not to exceed Tenant's Proportionate Share of
the Excess Capacity (as determined by Landlord) ("TENANT'S GENERATOR
ALLOCATION"). Tenant shall pay, within twenty (20) days after Landlord demand as
additional rent, such charges as Landlord may impose for Tenant's use of the
Generator, provided that such charges are based upon rates that do not exceed
Landlord's then prevailing rates for supplying electricity from the Generator to
other Building tenants. Tenant shall not utilize electricity from the Generator
in an amount which shall exceed Tenant's Generator Allocation and Tenant's use
of electricity shall otherwise be subject to the provisions of Sections 16.04,
16.05 and 1606 of this lease. Nothing contained herein shall be deemed to
require Landlord to furnish and install the Generator and Tenant agrees that
Landlord shall have no liability to Tenant, nor shall Tenant's obligations
hereunder be in any way effected, by reason of Landlord's failure to install the
Generator.
ARTICLE 43
VIDEO SCREEN/PLAQUE
43.01 Landlord has informed Tenant that Landlord is contemplating the
installation of a video screen display (which may contain multiple video screens
or monitors, together with related equipment and installations) on a wall in the
Building lobby, using technology, content, equipment and at a location to be
determined by Landlord in its sole discretion (the "VIDEO SCREEN"). Tenant
acknowledges that Landlord has no obligation whatsoever to install or maintain
the Video Screen at any time during the Term and Tenant agrees that Landlord
shall have no liability to Tenant, nor shall Tenant's obligations hereunder be
affected, by reason of Landlord's failure to install a Video Screen. In the
event that Landlord determines, in its sole discretion, to install a Video
Screen, and provided none of the conditions set forth in subsections (a) through
(e) of Section 43.02 shall exist, Landlord shall grant to Tenant (and such other
Building tenants or other users as Landlord may, in its sole discretion,
determine) the non-exclusive right to use the Video Screen for its own
proprietary information and content, subject to Landlord's prior written
approval, which shall not be unreasonably withheld or delayed. Subject to the
provisions of this Section 43.01, Tenant, at no additional charge therefor,
except as otherwise provided in this lease, shall be permitted to use its
pro-rata share (based upon the proportion that (x) the rentable square foot area
of space in the Building then occupied by Tenant for its own use or for the use
of any Related Entities, bears to (y) the Building Area) of the Video Screen
during business hours on business days as reasonably and equitably determined by
Landlord. Tenant agrees and acknowledges that, depending on the nature of the
equipment and
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capabilities of the Video Screen, Tenant's pro rata use of the Video Screen (as
so determined by Landlord) may be based on fairly allocating a number of screens
or monitors at a given time comprising a portion of the Video Screen for a
particular duration, or the entire Video Screen for a particular duration, using
a weighted computation of the overall utilization of the Video Screen (as
reasonably determined by Landlord). Tenant's use of the Video Screen shall be
subject to such rules and regulations as may be promulgated by Landlord from
time to time with respect to the Video Screen, provided that such rules and
regulations shall not unreasonably discriminate against Tenant.
43.02 If Landlord shall determine not to install a Video Screen in the
Building lobby (and until such time as Landlord, in its sole discretion, shall
determine to install a Video Screen in the Building lobby), and provided the
Occupancy Requirement is, and remains satisfied, Landlord, at the request of
Tenant and at the sole cost and expense of Tenant (which cost and expense shall
be reimbursed to Landlord by Tenant within fifteen (15) days after Landlord's
demand therefor), and subject to the terms and conditions of this Article and
otherwise in compliance with all laws and/or requirements of public authorities,
shall install a plaque containing Tenant's name and/or registered or official
logo, having a size of up to three (3') in height and up to four (4') in width,
and made of a material Landlord determines shall be in keeping with the design
and character of the Building lobby and in an appropriate location of reasonable
prominence as reasonably determined by Landlord. Landlord, at Tenant's sole cost
and expense, shall maintain the plaque during the Term (and any extensions
thereof) or until earlier termination of this lease and Tenant shall pay such
costs and expenses (as additional rent) within fifteen (15) days after the date
of notice from Landlord. In the event that Landlord shall deem it necessary in
its sole reasonable judgment because of deterioration or damage to such plaque,
Tenant shall replace such plaque with a new plaque with the same specifications
(unless otherwise approved by Landlord) within fifteen (15) days after the date
of notice from Landlord. At Landlord's option, Landlord may, at Tenant's sole
cost and expense, permanently remove the plaque and repair all damage to the
Building caused thereby, in the event that at any time the Occupancy Requirement
is not satisfied. In the event that Landlord shall deem it necessary to remove
Tenant's plaque in order to (x) make repairs, alterations or improvements in, to
or upon, the Building; or (y) comply with any law or requirement of public
authorities or (z) comply with any agreement between Landlord and a third party,
including, without limitation, superior mortgages or superior leases, then the
Landlord shall have the right to do so at Landlord's sole cost and expense,
provided that if the applicable law or requirement of public authority permits
the plaque to be restored, same is restored as promptly as is reasonably
practicable.
ARTICLE 44
TERRACE
44.01 Landlord represents that the Terrace Area has a live load capacity
of 100 pounds per square foot. During the term of this lease, but only during
such portion of the term that the entire rentable area of the 19th Floor is part
of the Demised Premises, and only to the extent permitted by, and subject to,
(a) all applicable laws and/or requirements of public authorities, and (b) the
requirements of the insurance companies insuring Landlord's interest in the
Building, and subject to the reasonable rules and regulations of Landlord (which
shall include, but not be limited to, rules and regulations that in Landlord's
reasonable opinion, minimize risk of injury or
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damage to persons and property or that involve avoiding increases in the
premiums charged to Landlord by such insurance companies (unless such increases
are paid by Tenant)), Tenant may, at its sole cost and expense, but without
charge therefor by Landlord (except as otherwise provided in this Article), use
the terrace located on the 19th Floor, substantially where shown in hatching on
Exhibit I hereto (which by this reference is made a part hereof) (such portion
of the Building being hereinafter referred to as the "TERRACE AREA") for the
placement of, and sitting on, chairs, for eating, reading and lounging, and for
the placement of plants and planters, and for no other purpose. For the purposes
of the preceding sentence, "requirements of the insurance companies insuring
Landlord's interest in the Building" shall include the suggestions of such
insurance companies that involve minimizing risk of injury or damage to persons
and property or that involve avoiding increases in the premiums charged to
Landlord by such insurance companies. To the extent that the premiums charged by
such insurance companies are increased as a result of the use of the Terrace
Area, Tenant shall pay to Landlord, as additional rent, the amount of such
increases within fifteen (15) days after Landlord's demand therefor from time to
time. If, and to the extent, that Landlord's insurance policies for the Building
will not include, or exclude, liability and damage relating to the Terrace Area
(or other portions of the Building) as a result of the mere use of the Terrace
Area, Tenant shall not be permitted to use the Terrace Area. Landlord represents
that the Terrace Area has a live load capacity of 100 pounds per square foot.
44.02 Tenant shall be responsible and liable for such access and for all
persons using the Terrace Area, including, subject to Section 42.01 above and
the other applicable provisions of this lease, the installation, at Tenant's
sole cost and expense, of reasonable security devices and systems to insure that
there is no unauthorized use of the Terrace Area. Neither Landlord, nor any of
its agents or employees, shall be liable for any damage to, or theft of, any
materials, supplies or other property, nor for any injury or damage to persons,
in connection with, resulting from, or relating to, such access and such use of
the Terrace Area. In addition, the use of the Terrace Area shall in no way
interfere with or disturb the operation or maintenance of the Building or the
other tenants and occupants of the Building or their use and occupancy thereof.
Tenant shall take all necessary steps to minimize noise emanating from the
Terrace Area and in no event shall Tenant permit music (live or recorded) or
other amplified sounds to be played, performed or made on or from the Terrace
Area. Tenant shall indemnify and hold Landlord, its agents and employees,
harmless, from and against any and all actions, proceedings, liabilities,
obligations, claims, damages, deficiencies, losses, judgments, suits, expenses
and costs (including, without limitation reasonable legal fees and
disbursements) in connection with, resulting from, or relating to, the use of
the Terrace Area. Except for an assignment of all of Tenant's rights, title and
interest in and to this lease in accordance with, and subject to, the applicable
provisions of this lease, Tenant shall not directly or indirectly, or by
operation of law, or otherwise, assign or otherwise transfer its rights to use
the Terrace Area or let any other person or entity (other than Tenant's
employees and business invitees and permitted subtenants of the 19th Floor) use
the Terrace Area or any portion thereof. Nothing contained in this Article or
elsewhere shall be deemed to grant Tenant (or any person claiming by, through or
under Tenant) a leasehold interest in the Terrace Area. Tenant's use of the
Terrace Area is a license, and shall be subject to Section 713, Paragraph 7 of
the New York Real Property Actions and Proceedings Law and all other applicable
laws. On or before the Expiration Date or sooner termination or expiration of
the term of this lease or of such license, or the sooner date on which the
entire
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rentable area of the 19th Floor is no longer a part of the Demised Premises,
Tenant shall remove from the Terrace Area all of its property and repair any and
all damage (other than ordinary wear and tear and damage for which Tenant is not
responsible hereunder) to the Terrace Area occurring during, or by reason of,
the use thereof by Tenant or by any other person or entity claiming by, through
or under Tenant, and to all other portions of the Building caused by its use of
the Terrace Area or such removal. If for any reason Landlord is prohibited or
prevented from permitting Tenant to use the Terrace Area, including, without
limitation, a fire or other casualty to any portion of the Building, or on
account of any rule, order or regulation of any federal, state, county or
municipal authority or any department, subdivision or agency thereof, or any
other legal or insurance requirement, including, without limitation, applicable
zoning laws, then, for so long as Landlord is so prohibited or prevented,
Tenant's right to use the Terrace Area shall be terminated and revoked,
permanently or temporarily, as the case may be, and Tenant, within three (3)
business days after Landlord's written request, shall remove from the Terrace
Area all of its property, repair any and all damage (other than ordinary wear
and tear and damage for which Tenant is not responsible hereunder) to the
Terrace Area and to all other portions of the Building caused by its use of the
Terrace Area or such removal, and Landlord shall not be subject to any liability
nor shall Tenant be entitled to any compensation or abatement of the rent or
additional rent under this lease, nor shall such revocation or termination be
deemed a constructive or actual eviction from any portion of the Demised
Premises. Tenant, at Tenant's sole cost and expense, shall promptly repair all
damage (other than ordinary wear and tear and damage for which Tenant is not
responsible hereunder) to the Terrace Area and other portions of the Building
caused by Tenant's use of the Terrace Area, including, without limitation,
moving and removing materials, supplies and other property to and from the
Terrace Area. In addition, Tenant shall use the Terrace Area in compliance with,
and subject, all applicable laws and/or requirements of public authorities and
all requirements of insurance bodies. Tenant hereby acknowledges that Tenant has
not relied upon any representation or warranty, express or implied, in
connection with the Terrace Area and that Landlord has made no such
representations or warranties, including, without limitation, any representation
or warranty as to whether the Terrace Area is suitable for Tenant's use or
whether the Terrace Area can be legally used for the purposes described herein.
Tenant shall use the Terrace Area in its then as-is condition, Tenant hereby
agreeing that Landlord shall not be obligated to perform any alterations,
repairs, improvements, remediation, compliance with laws or other work
whatsoever in connection with Tenant's use of the Terrace Area, other than
performing any work required for the Terrace Area to have a live load capacity
of 100 pounds per square foot and for the Terrace Area otherwise to remain
structurally sound. Tenant has fully inspected the Terrace Area, is fully
familiar with the condition thereof. Notwithstanding anything contained in this
subsection to the contrary, Tenant shall not be permitted to make any
alterations or improvements, or perform any other work whatsoever, in or to the
Terrace Area, without Landlord's prior written consent in each instance, except
that Tenant may make Nonstructural Changes to the Terrace Area in accordance
with, and subject to, the provisions of Article 13 and 14, as if the Terrace
Area were a part of the Demised Premises, except that none of such Nonstructural
Changes shall be deemed a Permitted Nonstructural Change, and all installations
and improvements to the Terrace Area shall be deemed Specialty Installations.
During Tenant's use of the Terrace Area, the insurance that Tenant is required
to maintain under Article 11 above shall include the Terrace Area. Tenant shall
not be obligated to make any structural repairs to the Terrace Area except those
(subject to the provisions of Section
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11.03 above) that are required by reason of (i) the performance or existence of
Tenant's Work or Tenant's Changes, (ii) the installation, use or operation of
Tenant's Property in the Terrace Area, (iii) the moving of Tenant's Property in
or out of the Terrace Area, (iv) the negligence or willful act of Tenant or any
of its employees, agents or contractors or (v) the use of any portion of the
Terrace Area for a use that is not permitted under this lease. Notwithstanding
anything contained in this lease to the contrary, any structural repairs to the
Terrace Area required by any of the reasons set forth in clauses (i) through (v)
of the preceding sentence shall be made by Tenant at its cost and expense,
unless Landlord elects to perform same pursuant to the provisions of Article 15
above.
44.03 All of Landlord's rights under Article 19 of this lease with respect
to the Demised Premises shall apply to the Terrace Area. If at any time during
the term of this lease, Tenant's right to use the Terrace Area terminates, ends
or is revoked, then Landlord shall, to the extent permitted by, and subject to,
(a) all applicable laws and/or requirements of public authorities, and (b) the
requirements of the insurance companies insuring Landlord's interest in the
Building, close off the access to the Demised Premises from the Terrace Area.
44.04 Notwithstanding anything contained in this Article to the contrary,
until the 19th Floor Effective Date occurs, the reference in this Article to the
"entire rentable area of the 19th Floor" shall be deemed a reference to the
entire rentable area of the Substantially Completed 19th Floor Portions, it
being understood and agreed that until the 19th Floor Effective Date occurs, if
reasonable access to the Terrace Area from the Substantially Completed 19th
Floor Portions cannot reasonably be provided by Landlord, then Landlord shall
not be required to give Tenant access to the Terrace Area until the 19th Floor
Effective Date occurs.
ARTICLE 45
BANNERS; EXTERIOR SIGNS
45.01 Landlord has advised Tenant that Landlord intends to install,
subject to obtaining all necessary licenses, permits or other approvals required
by all applicable governmental authorities, banners over the Broadway and 40th
Street entrances to the Building. Landlord agrees that, for so long as the
Occupancy Requirement is satisfied, Tenant may have the right to use one (1)
banner above each of such entrances, subject to and in accordance with the
provisions of this Article. Landlord may reserve one (1) banner of its choice
above each Building entrance for Landlord's own use and shall give Tenant the
first right to designate the banner location from those that remain available
over each entrance that Tenant desires to use. If Tenant desires to use and
maintain banners, it shall notify Landlord thereof together with its desired
location. Promptly after Landlord receives Tenant's notice , Landlord shall
appoint a recognized expert (the "SIGNAGE EXPERT") in signage licensing and
marketing arrangements in the Times Square area, having at least five (5) years
of experience, to determine the annual fair market value of such banner to a
third party license thereof in an arms length transaction (the "BANNER FMV").
Promptly after Landlord receives the Signage Expert's determination of the fair
market value thereof, Landlord shall notify Tenant thereof and Tenant shall have
thirty (30) days (TIME BEING OF THE ESSENCE) after receipt of such determination
to notify Landlord that it accepts or rejects the right to display the banners
at the Banner FMV. Failure by Tenant to respond within such thirty (30) day
period (TIME BEING OF THE ESSENCE) shall be deemed to be
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Tenant's rejection of such right to display banners. If Tenant shall elect to
accept the right to display the banners in accordance with the provisions
hereof, Landlord may, after the expiration of each year, appoint a Signage
Expert to again determine the then Banner FMV. Upon Landlord's receipt of the
Banner FMV from the Signage Expert, Landlord shall notify Tenant of the Signage
Expert's determination, and Tenant shall have thirty (30) days (TIME BEING OF
THE ESSENCE) to renew the right to use the banner for an additional one (1) year
period at the newly determined Banner FMV. Failure by Tenant to respond within
such thirty (30) day period (TIME BEING OF THE ESSENCE) shall be deemed to be
Tenant's election to renew at the newly determined Banner FMV. Tenant's right to
use and display banners in accordance with this Article shall be deemed a
license for one (1) year (subject to renewals as aforesaid), shall terminate
when the Occupancy Requirement is no longer satisfied, and shall be subject to
such additional reasonable rules and regulations as Landlord may adopt with
respect thereto (provided same do not unreasonably discriminate against Tenant).
The banners shall be of such design and materials and in accordance with such
other criteria as Landlord shall establish, from time to time. Tenant shall pay,
as a license fee for the use of the banners, the Banner FMV, which shall be paid
to Landlord in equal monthly installments in advance in the same time and manner
as fixed rent, and any default in the payment thereof shall give Landlord the
same rights and remedies as in the case of a default in the payment of fixed
rent hereunder.
45.02 Provided that (a) the Occupancy Requirement is then satisfied and (b)
Tenant shall then be licensing the banners in accordance with the provisions of
Section 45.01 above, Tenant shall have the right of first offer to license any
additional banners or building exterior advertisement signs that Landlord
intends to license (collectively, "EXTERIOR SIGNS") to non-Building tenants or
occupants (collectively, "NON-TENANTS") in accordance with the provisions of
this Section. In the event that Landlord desires to license any Exterior Signage
to Non-Tenants, Landlord shall first send Tenant written notice thereof (an
"OFFER NOTICE") setting forth (i) a description, in reasonable detail, of the
subject Exterior Sign, (ii) the term of the license, (iii) the fees and other
charges to be payable thereunder, and (iv) any other material business terms of
the proposed license for the Exterior Sign (the "SIGNAGE TERMS"). The Offer
Notice shall be deemed an offer by Landlord to license to Tenant the subject
Exterior Sign upon the Signage Terms. Within thirty (30) days after Tenant's
receipt of the Offer Notice (TIME BEING OF THE ESSENCE), Tenant shall notify
Landlord in writing (an "ACCEPTANCE NOTICE") if Tenant desires to license from
Landlord the subject Exterior Sign upon the Signage Terms and such other terms
and conditions as are contained in Landlord's then standard form of signage
licensing agreement for the Building (provided that the Offer Terms are not
modified thereby). If Tenant sends an Acceptance Notice within the time and in
the manner hereinbefore provided, and shall execute and deliver Landlord's then
standard form of license agreement on the Signage Terms within ten (10) business
days after Landlord's submission thereof to Tenant, Landlord shall license to
Tenant the subject Exterior Sign to Tenant on the Signage Terms. If Tenant fails
to send an Acceptance Notice within the thirty (30) day period (TIME BEING OF
THE ESSENCE) or to execute Landlord's then standard term of license agreement on
the Signage Terms within such ten (10) business day period), then, subject to
the next succeeding sentence, the right of first offer for such Exterior Sign
shall terminate and expire, Tenant shall have no further right to license such
Exterior Sign and Landlord shall be free to license such Exterior Sign to any
party upon such terms as Landlord may deem appropriate. Notwithstanding the
foregoing, in the event
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<PAGE>
that Tenant fails to send an Acceptance Notice as hereinbefore provided and
Landlord thereafter intends to license the subject Exterior Sign to a Non-Tenant
upon terms materially more favorable to the licensee than the Signage Terms (the
parties hereto agreeing that materially more favorable to licensee shall mean
that the economic terms, taken as a whole on a net present value basis, are at
least seven (7%) percent more favorable to licensee than the Signage Terms),
Landlord shall send Tenant a revised Offer Notice setting forth the more
favorable Signage Terms, and the same provisions of this Section shall apply
thereto, except that Tenant shall be
126
<PAGE>
required to send the Acceptance Notice within ten (10) days (TIME BEING OF THE
ESSENCE) after Tenant's receipt of the Offer Notice setting forth the revised
Signage Terms.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this lease as of
the date first above written.
LANDLORD:
1440 BROADWAY PARTNERS, LLC
a Delaware limited liability company
By: 1440 BROADWAY PARTNERS CORP.,
Its Managing Member
By: Max Capital Management Corp.,
Manager
By:
------------------------------
Adam C. Hochfelder, President
TENANT
ABOUT.COM, INC.
By:
------------------------------
Name:
Title:
127
<PAGE>
Exhibit 21.1
List of Subsidiaries
VantageNet, Inc. (Minnesota)
North Sky, Inc. (Delaware)
ExpertCentral.com, Inc. (Delaware)
Sombasa Media Inc. (Delaware)
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENENT ACCOUNTANTS
The Board of Directors
About.com, Inc.:
We consent to incorporation by reference in the registration statements on
Form S-8 (Nos. 333-30562, 333-93303, 333-91555 and 333-74931) of About.com, Inc.
and subsidiaries of our report dated January 24, 2000, relating to the
consolidated balance sheets of About.com, Inc. and subsidiaries as of
December 31, 1999 and 1998, and the related consolidated statements of
operations, stockholders' (deficit) equity and cash flows for each of the years
in the three-year period ended December 31, 1999, and the related financial
statement schedule, which report appears in the December 31, 1999, annual report
on Form 10-K of About.com, Inc.
/s/ KPMG LLP
New York, New York
March 29, 2000
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0
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