<PAGE> 1
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER: 000-27537
JUPITER COMMUNICATIONS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
13-4069996
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
627 BROADWAY
NEW YORK, NEW YORK 10012
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICER AND ZIP CODE)
(212) 780-6060
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
Check whether the registrant: (1) filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act 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
As of April 30, 2000, there were 15,455,657 shares of the registrant's
common stock outstanding.
<PAGE> 2
JUPITER COMMUNICATIONS, INC.
FORM 10-Q
INDEX
<TABLE>
<CAPTION>
PAGE
NUMBER
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Condensed Consolidated Financial Statements 3
Condensed Consolidated Balance Sheets at December 31, 1999 and March 31,
2000 (unaudited) 3
Unaudited Condensed Consolidated Statements of Operations for the three
months ended March 31, 1999 and 2000 4
Unaudited Condensed Consolidated Statements of Cash Flows for the three
months ended March 31, 1999 and 2000 5
Notes to Unaudited Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations 10
Item 3. Qualitative and Quantitative Disclosures about Market Risk 13
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 21
Item 2. Changes in Securities and Use of Proceeds 21
Item 3. Defaults Upon Senior Securities 21
Item 4. Submission of Matters to a Vote of Security Holders 21
Item 5. Other Information 21
Item 6. Exhibits and Reports on Form 8-K 21
</TABLE>
2
<PAGE> 3
PART I
FINANCIAL INFORMATION
ITEM 1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
JUPITER COMMUNICATIONS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31, 1999 MARCH 31, 2000
(unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 57,222,154 $ 48,929,611
Short-term investments 8,852,937 18,556,877
Accounts receivable, net 17,849,722 20,839,417
Marketable securities -- 3,425,352
Prepaid expenses and other current assets 3,156,851 4,334,645
Total current assets 87,081,664 96,085,902
Property and equipment, net 5,131,095 7,134,427
Goodwill and other intangible assets, net 4,526,071 24,548,624
Deferred tax assets 202,000 1,268,855
Other assets 238,744 253,889
Total assets $ 97,179,574 $ 129,291,697
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 2,764,013 $ 7,680,210
Accrued expenses 1,178,619 1,882,373
Accrued compensation 2,515,680 1,163,858
Convertible note payable -- 1,442,291
Deferred revenue 25,594,018 33,095,495
Total current liabilities 32,052,330 45,264,227
Deferred rent 129,716 148,799
Convertible notes payable 3,500,000 --
Common stock, $0.001 par value: 100,000,000 shares
authorized, 15,083,419 shares issued and outstanding at
March 31, 2000 14,500 15,083
Additional paid-in capital 63,212,533 83,615,744
Deferred compensation (504,819) (468,759)
Retained earnings (1,290,623) 1,903,618
Accumulated other comprehensive income (loss) 65,937 (1,187,015)
Total stockholders' equity 61,497,528 83,878,671
Commitments and contingencies -- --
Total liabilities and stockholders' equity $ 97,179,574 $ 129,291,697
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
3
<PAGE> 4
JUPITER COMMUNICATIONS, INC.
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31,
1999 2000
<S> <C> <C>
Revenues:
Research Services 3,446,767 11,232,869
Conferences 1,724,486 5,117,716
Other 845,390 809,115
Total revenues 6,016,643 17,159,700
Cost of services and fulfillment 2,955,210 6,664,417
Gross profit 3,061,433 10,495,283
Other operating expenses:
Sales and marketing 1,750,135 5,208,720
General and administrative expenses 1,511,023 5,179,513
Depreciation and amortization 124,458 881,163
Total other operating expenses 3,385,616 11,269,396
Interest income 2,918 908,794
Gain on sale of investments -- 5,894,601
Income (loss) before income tax (321,265) 6,029,282
Income tax expense -- 2,835,041
Net income (loss) (321,265) 3,194,241
Pro forma basic net income (loss) per common share (.03) .22
Pro forma diluted net income (loss) per common share (.03) .20
Pro forma basic weighted average common shares outstanding 10,318,359 14,602,999
Pro forma diluted weighted average common shares outstanding 10,318,359 15,901,104
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
4
<PAGE> 5
JUPITER COMMUNICATIONS, INC.
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31,
1999 2000
Cash flows from operating activities:
<S> <C> <C>
Net income (loss) (321,265) 3,194,241
Adjustments to reconcile net income (loss) to net cash
provided by operating activities:
Equity loss from investment in Methodfive LLC 26,510 --
Non-cash gain related to investment in Methodfive LLC -- (5,744,601)
Depreciation and amortization 124,458 899,178
Provision for allowance for doubtful accounts (3,381) 35,710
Amortization of deferred compensation -- 36,060
Changes in operating assets and liabilities, net
of effect of acquisition:
Increase in accounts receivable (329,382) (2,476,959)
Increase in prepaid expenses and other assets (716,022) (1,171,034)
Increase in security deposits (78,873) --
Increase in accounts payable 215,249 4,675,724
Decrease in accrued expenses (356,285) (1,145,519)
Increase in deferred revenues 2,390,697 7,476,954
Increase in deferred rent 129,256 19,083
Net cash provided by operating activities 1,080,962 5,798,837
Cash flows from investing activities:
Capital expenditures (447,073) (2,313,926)
Repayment of loan, related party 910 --
Purchase of investments -- (9,703,940)
Cash paid in connection with acquisition, net -- 23,675
Net cash used in investing activities (446,163) (11,994,191)
Cash flows from financing activities:
Repayment of notes payable -- (2,110,524)
Exercise of options -- 4,419
Net cash used in financing activities -- (2,106,105)
Effect of exchange rate changes on cash and cash
equivalents -- 8,915
Increase (decrease) in cash and cash equivalents 634,799 (8,292,544)
Cash and cash equivalents at beginning of period 216,144 57,222,155
Cash and cash equivalents at end of period 850,943 48,929,611
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
5
<PAGE> 6
JUPITER COMMUNICATIONS, INC. AND SUBSIDIARIES
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(1) ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Description of Business
Jupiter Communications, LLC (the "LLC") was organized on December 1, 1994
as a New York limited liability company. On October 8, 1999, the LLC was merged
with and into Jupiter Communications, Inc., a Delaware corporation ("Jupiter" or
the "Company") (see Note 4(a)). Jupiter is an internet commerce research firm
that provides companies with comprehensive views of industry trends, forecasts
and best practices. The Company's research services encompass Jupiter Research
Services, conferences, book-length studies, and custom research reports and
provide clients and customers with focused research and strategic planning
support as they develop interactive products and services.
(b) Unaudited Interim Condensed Consolidated Financial Information
The unaudited interim condensed consolidated financial statements of the
Company as of March 31, 2000 and for the three months ended March 31, 2000 and
1999 included herein have been prepared in accordance with the instructions for
Form 10-Q under the Securities Exchange Act of 1934, as amended, and Article 10
of Regulation S-X under the Securities Act of 1933, as amended. Accordingly,
they do not include all the information and footnotes required by generally
accepted accounting principles for complete financial statements. In the opinion
of management, all necessary adjustments, consisting only of normal recurring
adjustments, have been included in the accompanying unaudited financial
statements.
The results of operations for such periods are not necessarily indicative of
results expected for the full year or for any future period. For further
information, refer to the financial statements and notes thereto which are
included in the Company's Annual Report on Form 10-K filed with the Securities
and Exchange Commission on March 30, 2000.
(c) Principles of Consolidation
The Company's unaudited condensed consolidated financial statements as of
and for the three months ended March 31, 2000 include the accounts of the
Company and the accounts of Intelligence SE AB ("Intelligence"), a Swedish
research company, New Media Holdings PTY, Ltd. ("New Media Holdings"), an
Australian research company, and Internet Research Group ("IRG"), a California
research company, from March 16, 2000 (date of acquisition) (See Note 2). The
unaudited condensed consolidated financial statements for the three months ended
March 31, 1999 include only the accounts of Jupiter. All significant
intercompany balances and transactions have been eliminated.
(d) Foreign Currency Translation
Revenues and expenses related to the Company's foreign subsidiaries were
translated at the average monthly exchange rates prevailing during the period.
The assets and liabilities of the Company's foreign subsidiaries were translated
into U.S. dollars at the rate of exchange at the consolidated balance sheet
date. The resulting translation adjustment is reflected as a separate component
of stockholders' equity.
(e) Use of Estimates
The preparation of condensed consolidated 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 condensed consolidated financial statements and the reported amounts of
revenue and expenses during the reporting period. Actual results could differ
from those estimates.
(f) Goodwill and Other Intangible Assets
6
<PAGE> 7
Goodwill and other intangible assets are being amortized on a straight-line
basis over their expected period of benefit ranging from four to ten years.
Goodwill and other intangible assets are stated net of total accumulated
amortization of $326,742 and $772,472 at December 31, 1999 and March 31, 2000,
respectively.
(g) Actual and Pro Forma Basic and Diluted Net Income (Loss) Per Common Share
Basic net income (loss) per common share is computed by dividing net income
(loss) by the weighted average number of common shares outstanding for
the period. Diluted net income per common share is computed in the
same manner except that the weighted average number of common shares
assumes the exercise and conversion of certain options.
The following table sets forth the computation of actual and pro forma net
income (loss) per common share (in thousands, except per share data):
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
1999 2000
Proforma
<S> <C> <C>
Basic net income (loss) per common share (.03) .22
Diluted net income (loss) per common share (.03) .20
Net income (loss) (321) 3,194
Basic weighted average common shares outstanding 10,318 14,603
Common stock equivalents:
Stock options - 1,298
Diluted weighted average common shares outstanding 10,318 15,901
</TABLE>
The information for the three months ended March 31, 1999 is pro forma. Pro
forma basic and diluted net loss per common share is computed by dividing net
loss by the pro forma weighted average number of shares of common stock. Pro
forma weighted average number of shares of common stock gives effect to the
Company's reorganization from a limited liability company to a corporation in
October 1999. Pro forma weighted average number of shares of common stock does
not include any common stock equivalents because inclusion of common stock
equivalents would have been anti-dilutive.
7
<PAGE> 8
(h) Concentration of Risk
The Company's customers are concentrated in the United States. The Company
performs ongoing credit evaluations of its customers' financial condition and
generally does not require collateral and establishes an allowance for doubtful
accounts based upon factors surrounding the credit risk of customers, historical
trends and other information. To date, such losses have been within management's
expectations.
For the three months ended March 31, 1999 and 2000, there were no customers
that accounted for over 10% of revenues generated by the Company, or of gross
accounts receivable at December 31, 1999 and March 31, 2000.
(i) Recent Accounting Pronouncements
The Company is required to adopt SFAS No. 133 "Accounting for Derivative
Instruments and Hedging Activities" effective July 1, 2000, and has not yet
determined the effect SFAS No. 133 will have on its results of operations and
financial position. This statement is not required to be applied retroactively
to financial statements of prior periods.
FASB Interpretation No. 44, "Accounting for Certain Transactions Involving
Stock Compensation" ("FIN No. 44"), provides guidance for applying APB Opinion
No. 25, "Accounting for Stock Issued to Employees." With certain exceptions,
FIN No. 44 applies prospectively to new awards, exchanges of awards in a
business combination, modifications to outstanding awards and changes in
grantee status on or after July 1, 2000. The Company does not believe that the
implementation of FIN No. 44 will have a significant effect on its results of
operations.
In December 1999, the SEC issued Staff Accounting Bulletin No. 101, "Revenue
Recognition in Financial Statements" ("SAB No. 101"), which summarizes certain
of the SEC staff's views in applying generally accepted accounting principles
to revenue recognition in financial statements. The Company will be required to
adopt the accounting provisions of SAB No. 101 no later than the second
quarter of 2000. The Company does not believe that the implementation of SAB
No. 101 will have a significant effect on its results of operations.
(j) Segment Reporting
The Company has determined that it has no separately reportable business
segments.
(2) ACQUISITION
Internet Research Group
On March 16, 2000, Jupiter acquired all of the stock of Internet Research
Group ("IRG"), in exchange for 581,044 shares of common stock and 61,456 options
to purchase additional shares of common stock, at an aggregate value of
$20,399,375. The total purchase price for this transaction was approximately
$20,499,375 which includes expenses incurred by the Company of approximately
$100,000 related to the merger.
Of the purchase price, $52,172 was allocated to net assets. The historical
carrying amounts of such net assets approximated their fair values. The
difference between the purchase price and the fair value of the acquired net
assets of IRG was recorded as goodwill in the amount of $18,766,038 and is being
amortized on a straight line basis over its estimated expected life of 10 years.
The following unaudited pro forma consolidated financial information gives
effect to the above described acquisition as if it had occurred at the
beginning of the respective periods by consolidating the results of operations
of the Company and IRG for the three months ended March 31, 2000 and 1999.
Three Months Ended
March 31,
1999 2000
--------- ---------
Revenues......................... 6,878,799 18,579,157
Net income (loss)................ (725,931) 2,862,943
Basic net income (loss) per
common share.................... (.07) .19
Diluted net income (loss) per
common share.................... (.07) .17
Basic weighted average common
shares outstanding.............. 10,899,403 15,184,043
Diluted weighted average common
shares outstanding.............. 10,899,403 16,482,148
(3) STOCKHOLDERS' EQUITY
Deferred Compensation
The Company recorded deferred compensation of approximately $577,000,
representing the difference between the exercise price of unit options granted
in July 1999 and the fair value for accounting purposes of the underlying units
at the date of grant, assuming a fair value of the Company's units on the date
of grant of $11.00 per share. The $577,000 deferred compensation cost is being
amortized over the vesting period of the options. During the three months ended
March 31, 2000, the Company has amortized approximately $36,000 of the deferred
compensation.
Accumulated Other Comprehensive Loss
8
<PAGE> 9
Accumulated other comprehensive loss as of March 31, 2000 is comprised of an
after-tax unrealized loss of $1,252,394 to record the fair market value of the
142,723 shares of Xceed, Inc. at March 31, 2000, as well as a loss of $65,379
related to the foreign currency translation adjustment of Intelligence which was
acquired by the Company in July 1999.
Comprehensive net income (loss) was ($321,265) and $4,447,193 for the three
months ended March 31, 1999 and 2000, respectively.
(4) SUBSEQUENT EVENTS
(a) Acquisition of Net Market Makers, Inc.
In April 2000, the Company acquired all of the stock of Net Market Makers,
Inc. ("NMM"), a California company, in exchange for $20,500,000 and 274,680
shares of common stock valued at $8,721,090. The agreement calls for additional
consideration of up to $10,500,000 in cash to be paid if certain revenue targets
are met by NMM during 2000 and 2001. The acquisition will be accounted for
under the purchase method of accounting.
9
<PAGE> 10
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
THE FOLLOWING DISCUSSION OF OUR FINANCIAL CONDITION AND RESULTS OF
OPERATIONS SHOULD BE READ IN CONJUNCTION WITH THE CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS AND THE NOTES TO THOSE STATEMENTS INCLUDED ELSEWHERE IN
THIS QUARTERLY REPORT. THIS DISCUSSION CONTAINS FORWARD-LOOKING STATEMENTS THAT
INVOLVE RISKS AND UNCERTAINTIES. OUR ACTUAL RESULTS MAY DIFFER MATERIALLY FROM
THOSE ANTICIPATED IN THESE FORWARD-LOOKING STATEMENTS AS A RESULT OF VARIOUS
FACTORS, INCLUDING, BUT NOT LIMITED TO, THOSE SET FORTH UNDER "RISK FACTORS THAT
MAY AFFECT FUTURE RESULTS" AND ELSEWHERE IN THIS QUARTERLY REPORT, AND IN OTHER
REPORTS AND DOCUMENTS FILED FROM TIME TO TIME WITH THE SECURITIES AND EXCHANGE
COMMISSION.
OVERVIEW
We provide research and advice on Internet commerce. Senior executives at
our client companies utilize our research to make informed business decisions in
a complex and rapidly changing Internet economy. Our research, which is focused
solely on the global Internet economy, provides our clients with comprehensive
views of industry trends, forecasts and best practices. Our analysis, supported
by proprietary data, emphasizes specific, actionable findings.
Our revenues consist of Research Services, conferences and other revenues.
For the three months ended March 31, 2000, Research Services represented
approximately 65.5% of our total revenues. Jupiter Research Services is a
combination of proprietary written analysis, supporting data and access to our
analysts. We typically bill clients annually in advance and deliver the products
and services over the term of the contract. We also produce a wide range of
conferences which offer senior executives the opportunity to hear first-hand the
insights of our analysts and the leading decision makers in the Internet and
technology industries. Conference revenues consist of revenues from individual
attendees, sponsors, which display their logo in our conference program and/or
host a reception, and exhibitors, which receive a booth to promote their
companies. For the three months ended March 31, 2000, conferences represented
approximately 29.8% of our total revenues. Other revenues, which consist
primarily of book-length studies, newsletters and custom research, represented
approximately 4.7% of our total revenues for the three months ended March 31,
2000.
Research Services contracts are renewable contracts, typically annual, and
payable in advance. Accordingly, a substantial portion of our billings is
initially recorded as deferred revenue and amortized into revenue over the term
of the contract. Commission expense related to Jupiter Research Services is also
initially deferred and amortized into expense over the contract period in which
the related revenues are earned and amortized to income. Our contracts are
non-cancelable and non-refundable. Billings attributable to our conferences and
other products and services are initially recorded as deferred revenue and
recognized upon the completion of the event or project.
We have experienced rapid growth since our organization, and particularly
since our decision in late 1996 to focus our business on Research Services,
formerly known as Strategic Planning Services or SPS. Between 1995 and 1999, our
total revenues grew from $3.7 million to $38.1 million, a compound annual growth
rate of 79.1%. For the three months ended March 31, 2000, our revenues of $17.2
million represented an increase of 185.2% over revenues of $6.0 million for the
three months ended March 31, 1999. The number of our Jupiter Research Services
contracts has increased from 514 as of March 31, 1999 to 1,158 as of March 31,
2000. Our total contract value has increased from $15.2 million on March 31,
1999 to $50.5 million on March 31, 2000. We believe that total contract value is
a meaningful measure of the volume of our business. Total contract value
represents the annualized value of all outstanding Research Services contracts
without regard to the remaining duration of such contracts. Total contract
value, however, does not necessarily correlate to deferred revenue. Deferred
revenue represents unamortized revenue remaining on all outstanding and billed
contracts. As of March 31, 2000, deferred revenue related to Research Services
contracts totaled $26.7 million, which was 52.9% of our total contract value as
of such date.
To date, a substantial portion of expiring Research Services contracts have
been renewed for an equal or higher
10
<PAGE> 11
amount. Approximately 75% of contracts expiring during the twelve months ended
March 31, 2000 were renewed and approximately 95% of these contracts were
renewed for an equal or larger dollar amount. With this high customer renewal
rate, we believe we have a growing base of recurring revenues from our Research
Services.
We have a highly diversified client base, including companies in the
Internet, media, telecommunications, technology, financial services, retail,
travel, consumer products and professional services industries. No client
accounts for more than 2% of our total annual revenues.
Cost of services and fulfillment represents the costs associated with
production and delivery of our products and services, including the costs of
salaries, bonuses and related benefits for our research and conference
personnel, all associated editorial, travel and support services, and the costs
of producing our conferences. Sales and marketing expenses include salaries,
bonuses, employee benefits, travel expenses, promotional costs, sales
commissions and other costs incurred in marketing and selling our products and
services. General and administrative expenses include the costs of our finance
and technology groups and other administrative functions.
We have recorded deferred compensation of approximately $577,000,
representing the difference between the exercise price of unit options granted
in July 1999 and the fair value for accounting purposes of the underlying units
at the date of grant, assuming a fair value of our units on the date of grant of
$11.00 per share. The $577,000 deferred compensation cost is being amortized
over the vesting period of the options.
We have incurred net losses each year since our formation. Our net loss was
$613,000 in 1996, $2.3 million in 1997, $2.1 million in 1998 and $630,000 in
1999. We had a net profit of $3.2 million in the first quarter of 2000 and, as
of March 31, 2000, we had retained earnings of $1.9 million. The net profit in
the first quarter was due primarily to a $3.1 million after tax gain on the sale
of our shares of Methodfive LLC in exchange for shares of Xceed, Inc. We expect
to incur significant expenditures in the future associated with our domestic and
international expansion strategies. In particular, we intend to continue to
expand our research and sales personnel, and we intend to continue to invest in
technology, leasehold improvements and the development of additional research
practices and modules.
COMPARISON OF THREE MONTHS ENDED MARCH 31, 2000 AND 1999
Revenues. Total revenues increased 185.2% to $17.2 million in the three
months ended March 31, 2000, from $6.0 million in the three months ended March
31, 1999. Research Services revenues increased 225.8% to $11.2 million in the
three months ended March 31, 2000 from $3.4 million in the three months ended
March 31, 1999. The increases are attributable primarily to an increase in the
number of Research Services contracts to 1,158 at March 31, 2000 from 514 at
March 31, 1999 and an increase in average contract value to $43,600 at March 31,
2000 from $29,500 at March 31, 1999. These increases reflect an increase in the
number of users at, and research services purchased by, our client companies.
Total contract value increased to $50.5 million at March 31, 2000 from $15.2
million at March 31, 1999. The Research Services deferred revenue related to the
contract value at March 31, 2000 and March 31, 1999 was $26.7 million and $6.6
million, respectively.
Conference revenues increased 196.8% to $5.1 million in the three months
ended March 31, 2000 from $1.7 million in the three months ended March 31, 1999.
These revenues reflect the results of four conferences in the three months ended
March 31, 2000 and one conference in the three months ended March 31, 1999. The
increases are attributable to an increase in attendee, sponsor and exhibitor
revenues and the production of three additional conferences in the three months
ended March 31, 2000.
Other revenues decreased 4.3% to $809,000 in the three months ended March
31, 2000 from $845,000 million in the three months ended March 31, 1999. These
decreases reflect our decision to focus our business on Research Services and to
discontinue the sale of newsletters.
Cost of Services and Fulfillment. Cost of services and fulfillment
increased 125.5% to $6.7 million in the three months ended March 31, 2000 from
$3.0 million in the three months ended March 31, 1999. The increases are
attributable to the overall growth of our business, in particular the increased
research staffing for new and existing research practices. Gross margin
increased to 61.2% in the three months ended March 31, 2000 from 50.9% in the
three months ended March 31, 1999 because the growth in our client base and new
business exceeded the growth in
11
<PAGE> 12
the cost of providing our research services and conferences.
Sales and Marketing. Sales and marketing expenses increased 197.7% to $5.2
million in the three months ended March 31, 2000 from $1.8 in the three months
ended March 31, 1999. As a percentage of total revenues, these expenses
increased to 30.3% in the three months ended March 31, 2000 from 29.1% in the
three months ended March 31, 1999. The increases are primarily attributable to
an increased number of sales personnel and the corresponding commission costs
associated with increased revenues, as well as increased promotional costs for
our Research Services products.
General and Administrative. General and administrative expenses increased
242.8% to $5.2 million in the three months ended March 31, 2000 from $1.5
million in the three months ended March 31, 1999. The increases were primarily
attributable to increased personnel for the finance, human resources and
operations areas, increased operating costs relating to our internal technology
systems, higher costs for recruiting, retaining and training our staff, and
higher costs for staff travel and professional fees. As a percentage of total
revenues, these expenses increased to 30.2% in the three months ended March 31,
2000 from 25.1% in the three months ended March 31, 1999. This increase reflects
the fact that some of these expenses, such as personnel costs, increased at a
higher rate than our revenues.
Depreciation and Amortization. Depreciation and amortization expense
increased 608% to $881,000 in the three months ended March 31, 2000 from
$124,000 in the three months ended March 31, 1999. As a percentage of total
revenues, these expenses increased to 5.1% in the three months ended March 31,
2000 from 2.1% in the three months ended March 31, 1999. The increases are
primarily attributable to the acquisition of 45% of the Plug-In conference from
our partners, increased investment in capital assets, such as leasehold
improvements and IT infrastructure, as well as by amortization of goodwill
related to acquisitions in Sweden and Australia, as well as the IRG acquisition.
Interest income. Interest income increased to $909,000 in the three months
ended March 31, 2000 from $3,000 in the three months ended March 31, 1999. This
increase was caused by the investment of the net proceeds from our initial
public offering, all of which were invested in short-term, highly liquid
investment-grade securities.
Income tax expense. Income tax expense increased to $2.8 million for the
three months ended March 31, 2000 from $0 in the three months ended March 31,
1999. This increase was due primarily to a gain on the sale of our shares in
Methodfive LLC in exchange for shares of Xceed, Inc.
LIQUIDITY AND CAPITAL RESOURCES
Since inception, we have financed our operations primarily through private
placements of equity securities and the sale of common stock in our initial
public offering. Net cash provided by operating activities increased to $5.8
million for the three months ended March 31, 2000 from $1.1 million for the
three months ended March 31, 1999, due principally to an increased level of
business activity.
Net cash used in investing activities increased to $12.0 million for the
year ended March 31, 2000 from $446,000 for the three months ended March 31,
1999 due principally to investments made in investment-grade securities. In
addition, we increased capital expenditures for leasehold improvements, other
computer hardware and capitalizable software.
Net cash used in financing activities increased to $2.1 million for the
three months ended March 31, 2000 versus net cash used in financing activities
of $0 for the three months ended March 31, 1999. The increase was due to the
early repayment of one promissory note in its entirety and early repayment of a
portion of a second promissory note.
As of March 31, 2000, we had $48.9 million in cash and cash equivalents,
and $18.6 million invested in highly liquid investment-grade securities. We have
a $7.0 million committed line of credit, secured by substantially all of our
assets, under which there were no outstanding balances as of March 31, 2000. As
of March 31, 2000 none of the $62.4 million in net proceeds from our initial
public offering had been utilized.
12
<PAGE> 13
We expect to spend approximately $14 million in 2000 on technology,
including computer system enhancements, leasehold improvements, expansion of
operations and telecommunications upgrades. We anticipate that we will continue
to increase our capital expenditures and lease commitments consistent with our
anticipated growth in operations, infrastructure and personnel. In addition, we
anticipate that we will continue to evaluate investments in other businesses,
and continue to expand our sales and marketing programs and conduct more
aggressive brand promotions, any of which could reduce our liquidity. We also
anticipate that we will continue to experience growth in our operating expenses
to support our revenue growth, including the introduction of new Research
Services.
EFFECTS OF INFLATION
Due to relatively low levels of inflation in 1999 and the first quarter of
2000, inflation has not had a significant impact on our results of operations.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Currency Rate Fluctuation. 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 and Credit Risks. Our exposure to market risk for changes
in the interest rates relates primarily to our investment portfolio. We have not
used derivative financial instruments in our investment portfolio. We invest our
excess cash in debt instruments of the U.S. Government and its agencies and in
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.
RISK FACTORS THAT MAY AFFECT FUTURE RESULTS
IF WE ARE UNABLE TO ATTRACT AND RETAIN EXPERIENCED PERSONNEL, THE QUALITY OF OUR
RESEARCH PRODUCTS AND SERVICES MAY DECLINE, AND OUR ABILITY TO SELL OUR PRODUCTS
AND SERVICES MAY BE HARMED.
Our success depends in large part on the continued contributions of our
senior management team, research analysts and sales representatives. As of March
31, 2000, we had 65 research analysts and 94 sales representatives. We expect to
increase our hiring of research analysts and sales representatives significantly
in the next few years. We face intense competition in hiring and retaining
personnel from, among others, technology and Internet companies, market research
and consulting firms, print and electronic publishing companies and financial
services companies. Many of these firms have substantially greater financial
resources than we do to attract and retain qualified personnel from a limited
pool of attractive candidates. In addition, some people that we may attempt to
hire could be subject to non-competition agreements that could impede our
recruitment efforts. To the extent that we are unable to retain our existing
management, research analysts or sales representatives or that we are unable to
increase the number of research analysts and sales representatives that we hire,
our business and financial results may suffer.
13
<PAGE> 14
RAPID GROWTH IN OUR BUSINESS COULD STRAIN OUR MANAGERIAL, OPERATIONAL AND
FINANCIAL RESOURCES.
The anticipated future growth of our business will place a significant
strain on our managerial, operational and financial resources. We had 142
employees at December 31, 1998, 270 employees at December 31, 1999 and 354
employees at March 31, 2000. We anticipate hiring a substantial number of
research analysts, sales representatives and other employees in the foreseeable
future to expand our product and service offerings and to expand our sales of
such products and services. We also expect to continue to open additional
offices. For example, we recently opened an office in Munich, Germany and expect
to open an office in Tokyo, Japan in the second quarter of 2000. Furthermore, we
recently signed a lease for a new facility in New York City where we plan to
consolidate our current locations in New York City plus provide for future
growth. As we expand, we expect that we will need to continually improve our
financial and managerial controls, billing systems, reporting systems and
procedures. In addition, as we expand we will also need to increase our employee
training efforts. If we are unable to manage our growth effectively, our
business and financial results may suffer.
BECAUSE WE HAVE RECENTLY INTRODUCED MANY OF OUR PRODUCTS AND SERVICES, YOU HAVE
LIMITED INFORMATION UPON WHICH YOU CAN EVALUATE OUR BUSINESS.
We have recently launched many of the Research Services that we offer. As a
result, we have a limited operating history upon which you can evaluate our
business and the products and services that we offer. Due to our limited
operating history, it is difficult or impossible for us to predict future
results of operations. Moreover, due to our limited operating history, any
evaluation of our business and prospects must be made in light of the risks and
uncertainties frequently encountered by companies in new and rapidly evolving
markets such as ours. Many of these risks and uncertainties are discussed
elsewhere in this section. We cannot assure you that we will be successful in
addressing these risks and uncertainties. Our failure to do so could cause our
business and financial results to suffer.
WE HAVE A HISTORY OF ANNUAL OPERATING LOSSES WHICH MAY CONTINUE FOR THE
FORESEEABLE FUTURE.
We have incurred substantial costs to create, market and distribute our
products and services, to retain qualified personnel, including management,
research analysts and sales representatives, and to grow our business. As a
result, we incurred net losses of approximately $2.1 million in 1998 and
$630,000 in 1999. We intend to invest heavily in new products and services,
leasehold and technology improvements, new research and sales personnel and
international expansion. As a result, we will need to achieve significant
revenue increases to achieve and maintain profitability on an annual basis. The
number of clients for our research products and services, as well as the number
of attendees to our conferences, may grow more slowly than we anticipate or may
even decrease in the future. In addition, even if we become profitable on an
annual basis, we may not sustain or increase our profits on an annual basis in
the future.
OUR OPERATING RESULTS MAY FLUCTUATE IN FUTURE PERIODS, WHICH MAY CAUSE
VOLATILITY OR A DECLINE IN THE PRICE OF OUR STOCK.
Our revenues, expenses and operating results have varied in the past and
may fluctuate significantly in the future due to a variety of factors that are
outside of our control. These factors include, among others:
- the level and timing of new business and renewals of subscriptions to
our research products and services;
- changes in the market demand for research products or analysis
regarding Internet commerce;
- the levels of attendance at our Internet conferences; and
- the extent to which we experience increased competition.
The above factors could affect our quarterly as well as long-term financial
results. In particular, changes in the demand for our products, competition or
the levels of attendance at our Internet conferences each could have both
14
<PAGE> 15
short-term and long-term adverse effects on our business.
Our revenues, expenses and operating results may also fluctuate
significantly in the future as a result of business decisions made by us. These
decisions include, among others:
- the timing of the introduction and marketing of our new research
products and services;
- the timing of our conferences;
- changes in operating expenses; and
- the timing of acquisitions and the impact on our operations and our
operating results.
The sales of our research products and services and the success of our
conferences are difficult to forecast accurately. If our revenues fall short of
expectations, we may not be able to adjust our fixed expenses to compensate for
this shortfall on a timely basis. Further, as a strategy for remaining
competitive, we may have to make pricing, service or marketing decisions that
could cause our business and financial results to suffer.
Due to all the foregoing factors and other risks discussed in this section,
you should not rely on quarter-to-quarter comparisons of our results of
operations as an indication of future performance. It is possible that in some
future periods our results of operations may be below the expectations of
investors. In this event, the price of our common stock is likely to fall.
BECAUSE OUR REVENUES ARE SUBSTANTIALLY DEPENDENT ON THE SALE OF OUR RESEARCH
SERVICES, OUR BUSINESS MAY SUFFER IF WE HAVE DIFFICULTY IN ACQUIRING OR
RETAINING SUBSCRIBERS.
Our business and financial results are dependent on our ability to attract
and retain clients for our Research Services. In addition, our business model
assumes that we will be able to increase the level of research sales over time
to our existing clients. Revenues from the sale of Research Services, as a
percentage of our total revenues, were 41.9% in 1998, 60.7% in 1999 and 65.5% in
the first quarter of 2000.
Our ability to acquire and retain Research Services clients and our ability
to increase sales to existing clients is subject to a number of risks, including
the following:
- We may be unsuccessful in delivering high-quality and timely research
analysis to our clients;
- We may be unsuccessful in anticipating and understanding market trends
and the changing needs of our clients;
- The use of the Internet as a medium for commerce, both in the United
States and abroad, may not continue to grow as we currently anticipate;
- Our marketing programs designed to attract and retain clients may not
succeed; and
- We may not be able to hire and retain a sufficiently large number of
research and sales personnel in a very competitive job market.
If we are unable to retain existing clients, increase sales to existing
clients or attract a significant number of new Research Services clients, our
business and financial results may suffer.
OUR BUSINESS MAY SUFFER IF WE ARE UNABLE TO ATTRACT ATTENDEES, SPONSORS AND
EXHIBITORS TO OUR CONFERENCES.
Our business and financial results depend in part on our ability to attract
attendees, sponsors and exhibitors to our growing number of conferences.
Revenues from conferences, as a percentage of our total revenues, were 33.2%
15
<PAGE> 16
in 1998, 29.6% in 1999 and 29.8% in the first quarter of 2000. We cannot assure
you that we will be able to select topics for our conferences that potential
attendees, sponsors and exhibitors will find timely and interesting. We also
cannot assure you that our competitors will not produce conferences on similar
topics or that we will continue to be able to attract prominent industry leaders
to participate in our conferences. If we are unable to produce compelling
events, if we face increased competition for our conferences or if we are unable
to attract prominent speakers, the growth of our conference business will be
hindered. Our business and financial results may also suffer if we are forced to
cancel any conferences as a result of inclement weather or some other unexpected
event.
WE MAY NOT BE ABLE TO SUCCESSFULLY MAKE OR INTEGRATE ACQUISITIONS OF OTHER
COMPANIES, SERVICES OR PRODUCTS.
We have limited experience in acquiring other companies, services or
products. On March 16, 2000, we completed our acquisition of Internet Research
Group, a leading research and consulting firm focused exclusively on Internet
infrastructure markets. In April 2000, we completed our acquisition of Net
Market Makers, Inc., a leading provider of information and analysis regarding
business to business e-commerce. Although we have no present understanding or
agreement relating to any further acquisition, we do anticipate making other
acquisitions in the future. We cannot assure you, however, that we will be able
to complete future acquisitions successfully or to integrate an acquired entity
with our current business. In addition, the key personnel of the acquired
company may decide not to work for us. If we make other types of acquisitions,
we could have difficulty assimilating the acquired services or products. These
difficulties could disrupt our current business, distract our management and
employees, increase our expenses and adversely affect our results of operations.
Furthermore, we may incur debt or issue equity securities to pay for any future
acquisitions. The issuance of equity securities could be dilutive to our
existing shareholders.
OUR BUSINESS MAY SUFFER IF WE PROVE UNABLE TO ANTICIPATE MARKET TRENDS OR IF WE
FAIL TO PROVIDE INFORMATION THAT IS USEFUL TO OUR CLIENTS.
Our success depends in large part on our ability to anticipate, research
and analyze rapidly changing technologies and industries and on our ability to
provide this information in a timely and cost-effective manner. If we are unable
to continue to provide credible and reliable information that is useful to
companies engaged in online commerce, our business and financial results may
suffer.
Our research products and services, as well as our conferences, focus on
Internet commerce. Internet commerce is relatively new and is undergoing
frequent and dramatic changes, including the introduction of new products and
the obsolescence of others, shifting business strategies and revenue models, the
formation of numerous new companies and high rates of growth. Because of these
rapid and continuous changes in the Internet commerce markets, we face
significant challenges in providing timely analysis and advice. Many of the
industries and areas on which we focus are relatively new, and it is very
difficult to provide predictions and projections as to the future marketplace,
revenue models and competitive factors. In addition, many companies have not
embraced the use of the Internet as a medium for commerce and are unclear as to
how to allocate corporate resources effectively. As a result, some companies may
conclude that our research products are not useful to their businesses. Further,
the need to continually update our research requires the commitment of
substantial financial and personnel resources.
If our predictions or projections prove to be wrong, or if we are unable to
continually update our information, our reputation may suffer and demand for our
research products and services may decline. In addition, if companies do not
agree with our analysis of market trends and the areas on which we choose to
focus our efforts, our business and financial results may suffer.
WE FACE INTENSE COMPETITION IN PROVIDING OUR RESEARCH PRODUCTS AND SERVICES, AS
WELL AS IN PRODUCING CONFERENCES, AND SUCH COMPETITION IS LIKELY TO INCREASE IN
THE FUTURE.
We may not be able to compete successfully against current or future
competitors, and the competitive pressures that we face may cause our business
and financial results to suffer. Our principal current competitor is Forrester
Research, Inc. In 1999, Gartner Group, Inc., our largest stockholder, began
competing directly in providing research products related to Internet commerce.
Although Gartner Group has not been actively involved in our day-to-day
16
<PAGE> 17
operations since it first invested in us in October 1997, in the past we had
provided them with select confidential and proprietary data. As a result,
Gartner Group could use this confidential and proprietary data in developing and
marketing competing products and services. A number of other companies compete
with us in providing research and analysis related to a specific industry or
geographic area. In addition, our competitors include information technology
research firms, business consulting and accounting firms, electronic and print
publishing companies and equity analysts employed by financial services
companies.
Our ability to compete both in the United States and abroad depends upon
many factors, many of which are outside of our control. We believe that the
primary competitive factors determining success in our markets include the
quality and timeliness of our research and analysis, our ability to offer
products and services that meet the changing needs of our customers, the prices
we charge for our various research products and general economic conditions.
We expect competition to increase because of the business opportunities
presented by the growth of Internet commerce around the world. Competition may
also intensify as a result of industry consolidation, because the markets in
which we operate face few substantial barriers to entry or because some of our
competitors may provide additional or complementary services, such as consulting
services. Increased competition may result in reduced operating margins, loss of
market share and diminished value in our products and services, as well as
different pricing, service or marketing decisions.
Our current and potential competitors include many companies that have
substantially greater financial, information gathering and marketing resources
than we have. For example, Gartner Group and Forrester Research each had higher
revenues than we did during the first quarter of 2000, and each currently has
greater marketing resources than we have. This may allow them to devote greater
resources than we can to the promotion of their brand and to the development and
sale of their products and services. We cannot assure you that we will be able
to compete successfully against current and future competitors.
WE COULD FACE ADDITIONAL RISKS AND CHALLENGES IF WE CONTINUE TO EXPAND
INTERNATIONALLY.
Our business plan calls for accelerated international growth. For example,
we recently opened an office in Munich, Germany and expect to open an office in
Tokyo, Japan in the second quarter of 2000. Expansion into new geographic
territories requires considerable management and financial resources and may
negatively impact our near-term results of operations.
Our current international operations, as well as any future international
operations, are subject to numerous challenges and risks, including, but not
limited to, the following:
- political and economic conditions in various jurisdictions;
- fluctuations in currency exchange rates;
- tariffs and other trade barriers;
- adverse tax consequences; and
- difficulties in protecting intellectual property rights in
international jurisdictions.
We cannot assure you that one or more of these factors would not harm any
current or future international operations.
We also rely on local distributors in various countries, including
Singapore, Brazil and Israel, to distribute our Research Services. On March 29,
2000, we entered into an agreement with The Connection Group (BVI) Limited,
which does business as Web Connection, to market and distribute our research
products in China, Taiwan, Hong Kong and Korea. If any of these distribution
arrangements are terminated, we cannot assure you that we will able to replace
the terminated arrangement with an equally beneficial arrangement. We also
intend to enter into additional distribution arrangements in other countries but
we cannot
17
<PAGE> 18
assure you that we will be able to do so on acceptable terms. Our receipt of
revenues from these distribution arrangements and our joint venture agreement
may also be dependent on factors which are beyond our control, including the
efforts of the distributors and our joint venture partner.
OUR BUSINESS MAY SUFFER IF THE USE OF THE INTERNET AS A COMMERCIAL MARKETPLACE
DOES NOT CONTINUE TO GROW.
Because our company focuses solely on Internet commerce, our future success
depends on the continued development and acceptance of the Internet as a viable
commercial medium. However, the continued development and acceptance of the
Internet as a widely-used medium for commerce and communication is uncertain. A
number of factors could prevent such continued development and acceptance,
including the following:
- unwillingness of companies and consumers to shift their purchasing from
traditional vendors to online vendors;
- security and authentication concerns with respect to the transmission
of confidential information, such as credit card numbers, over the
Internet;
- privacy concerns, including those related to the ability of Web sites
to gather user information without the user's knowledge or consent; and
- significant uncertainty about the demand and market acceptance for
Internet advertising and the lack of standards to measure the
effectiveness of Internet advertising.
LAWS AND REGULATIONS COULD SLOW THE GROWTH OF THE INTERNET AND NEGATIVELY AFFECT
THE ACCEPTANCE OF THE INTERNET AS A COMMERCIAL MEDIUM.
Laws and regulations regarding Internet companies and commercial
transactions conducted over the Internet could slow the growth in use of the
Internet generally and decrease the acceptance of the Internet as a commercial
medium. For example, as the popularity and use of the Internet increases, it is
possible that a number of laws and regulations may be adopted in the United
States or in other countries covering issues such as taxation, intellectual
property matters, advertising and other areas. We cannot predict the impact, if
any, that future laws or regulations may have on our business.
OUR BUSINESS MAY SUFFER IF WE ARE UNABLE TO MAINTAIN OR ENHANCE AWARENESS OF THE
JUPITER BRAND OR IF WE INCUR EXCESSIVE EXPENSES ATTEMPTING TO PROMOTE THE
JUPITER BRAND.
We expect to expand our marketing activities to promote and strengthen the
Jupiter brand. Promoting and strengthening the Jupiter brand is critical to our
efforts to attract and retain clients for our research products, as well as to
increase attendance at our conferences. We believe that the importance of brand
recognition will likely increase due to the increasing number of competitors
entering our markets. In order to promote the Jupiter brand, in response to
competitive pressures or otherwise, we may find it necessary to increase our
marketing budget, hire additional marketing and public relations personnel or
otherwise increase our financial commitment to creating and maintaining brand
loyalty among our clients. If we fail to effectively promote and maintain the
Jupiter brand, or incur excessive expenses attempting to promote and maintain
the Jupiter brand, our business and financial results may suffer.
WE FACE POTENTIAL LIABILITY FOR INFORMATION THAT WE PUBLISH, PROVIDE AT
CONFERENCES OR DISSEMINATE THROUGH OUR RESEARCH ANALYSTS.
As a publisher and distributor of original research, market projections and
trend analyses, we face potential liability based on a variety of theories,
including defamation, negligence, copyright or trademark infringement or other
legal theories based on the nature, publication or distribution of this
information. Such claims, whether brought in the United States or abroad, would
likely divert management time and attention and result in significant cost to
investigate and defend, regardless of the merit of any such claims. The filing
of any such claims may also damage our reputation as a high-quality provider of
unbiased, timely analysis and result in client cancellations or overall
decreased demand for our products and services. In addition, if we become
subject to these types of claims and are not successful in our defense, we may
be forced to pay substantial damages. Our insurance may not adequately
18
<PAGE> 19
protect us against these claims.
DISRUPTION OF OUR WEB SITE DUE TO SECURITY BREACHES AND SYSTEM FAILURES COULD
HARM OUR BUSINESS AND RESULT IN CLIENT CANCELLATIONS.
Our infrastructure and the infrastructure of our service providers are
vulnerable to security breaches, computer viruses or similar disruptive problems
and system failures. These systems are also subject to telecommunications
failures, power loss and various other events. Any of these events, whether
intentional or accidental, could lead to interruptions or disruptions in the
general operation of our business. In addition, any of these events could also
lead to interruptions, delays or cessation of operation of our Web site, which
provides access to and distribution of many of our research products and
services. For example, many of our Research Services clients pay us so that
their employees can read our research solely on our Web site. As a result,
providing unimpeded access to our Web site is critical to servicing our clients
and providing superior customer service. Our inability to provide continuous
access to our Web site could cause some of our clients to discontinue purchasing
our research products and services, prevent or deter some people from purchasing
our research products and services and harm our business reputation.
WE ARE DEPENDENT ON KEY MANAGEMENT PERSONNEL FOR OUR FUTURE SUCCESS.
Our future success will depend in part on the continued service of a number
of key management personnel. We do not carry key person life insurance on any of
our management personnel. The loss of key management personnel, in particular
Gene DeRose, our Chief Executive Officer, or Kurt Abrahamson, our President and
Chief Operating Officer, could harm our business and financial results.
IF WE FAIL TO ADEQUATELY PROTECT OUR INTELLECTUAL PROPERTY OR FACE A CLAIM OF
INTELLECTUAL PROPERTY INFRINGEMENT BY A THIRD PARTY, WE MAY LOSE OUR
INTELLECTUAL PROPERTY RIGHTS AND BE LIABLE FOR SIGNIFICANT DAMAGES.
We provide our proprietary research products to hundreds of different
companies throughout the world, including some companies that compete with us in
some manner. As a result, any protective steps we have taken may be inadequate
to protect our intellectual property and to deter misappropriation of the
original research and analysis that we develop. We also may be unable to detect
the unauthorized use of our intellectual property or take appropriate steps to
enforce our intellectual property rights. Moreover, effective trademark,
copyright and trade secret protection may not be available in every country in
which we offer our research products and services to the extent these
protections are available in the United States.
Our failure to adequately protect our intellectual property, either in the
United States or abroad, could harm the Jupiter brand or our trademarks, devalue
our proprietary research and analysis and affect our ability to compete
effectively. Defending our intellectual property rights could result in the
expenditure of significant financial and managerial resources, which could harm
our financial results.
Furthermore, other parties may assert claims against us that we have
misappropriated a trade secret or infringed a patent, copyright, trademark or
other proprietary right belonging to them. Any infringement or related claims,
even if not meritorious, could be costly and time consuming to litigate, may
distract management from other tasks of operating the business and may result in
the loss of significant rights and the loss of our ability to operate our
business.
OUR DIRECTORS, OFFICERS AND PRINCIPAL STOCKHOLDERS EXERCISE SIGNIFICANT CONTROL
OVER US.
As of May 10, 2000, our officers, directors and existing stockholders who
owned greater than 5% of our outstanding common stock, and entities affiliated
with them, in the aggregate, beneficially owned approximately 43.0% of our
outstanding common stock. Specifically, Gartner Group, our largest stockholder,
beneficially owned approximately 19.1% of our outstanding common stock. These
stockholders acting together are, and Gartner Group acting alone may be, able to
exert substantial influence over all matters requiring approval by our
stockholders. These matters include the election and removal of directors and
any merger, consolidation or sale of all or substantially all of our assets. In
addition, they may dictate the management of our business and affairs. This
19
<PAGE> 20
concentration of ownership could have the effect of delaying, deferring or
preventing a change in control, or impeding a merger, consolidation, takeover or
other business combination.
FUTURE SALES OF OUR COMMON STOCK MAY NEGATIVELY AFFECT OUR STOCK PRICE
Sales of a substantial number of shares of our common stock in the public
market could cause the market price of our common stock to decline and could
impair our ability to raise additional capital through the sale of equity
securities.
OUR STOCK HAS EXPERIENCED, AND MAY CONTINUE TO EXPERIENCE, PRICE AND VOLUME
FLUCTUATIONS.
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 market prices of the securities of
Internet-related companies have been especially volatile. 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, companies that have experienced volatility
in the market price of their stock have been the object of securities class
action litigation. If we were the object of securities class action litigation,
it could result in substantial costs and a diversion of our management's
attention and resources.
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 to fund our operations,
to expand or enhance the range of products and services we offer or to respond
to competitive pressures and/or perceived opportunities. We cannot be sure that
additional financing will be available on terms favorable to us, or at all. If
adequate funds are not available when required or on acceptable terms, we may be
forced to cease our operations, and even if we are able to continue our
operations, our business and financial results may suffer.
WE HAVE ANTI-TAKEOVER PROVISIONS WHICH MAY MAKE IT DIFFICULT FOR A THIRD PARTY
TO ACQUIRE US.
Provisions of our certificate of incorporation, our bylaws and Delaware law
could make it more difficult for a third party to acquire us, even if doing so
might be beneficial to our stockholders.
WE DO NOT PLAN TO PAY DIVIDENDS IN THE FORESEEABLE FUTURE.
We have not declared or paid any cash dividends on our capital stock since
inception. We intend to retain any future earnings to finance the operation and
expansion of our business and do not anticipate paying any cash dividends in the
foreseeable future.
20
<PAGE> 21
PART II
OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
None.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS.
(a) Changes in Securities:
None.
(b) Recent Sales of Unregistered Securities:
In March 2000, we issued an aggregate of 581,044 shares of common stock
in exchange for all the outstanding capital stock of Internet Research Group.
(c) Use of Proceeds:
The effective date of our first registration statement, filed on Form
S-1 under the Securities Act of 1933 (File No. 333-84175) and relating to our
initial public offering of common stock, was October 7, 1999. A total of
3,258,750 shares of our common stock were sold by us to an underwriting
syndicate. The managing underwriters were Donaldson, Lufkin & Jenrette, Deutsche
Banc Alex. Brown, Thomas Weisel Partners LLC and DLJdirect Inc. The offering
commenced on October 8, 1999 at an initial public offering price of $21.00 per
share. The closing of the offering was held on October 14, 1999. The initial
public offering resulted in gross proceeds to us of approximately $68.4 million,
approximately $4.8 million of which was applied to the underwriting discount and
approximately $1.1 million of which was applied to related expenses. As a
result, net proceeds of the offering to us were approximately $62.5 million.
None of our net proceeds of the offering were paid by us, directly or
indirectly, to any of our directors, officers or general partners or any of
their associates, or to any persons owning ten percent or more of any class of
our equity securities, or any or our affiliates. Through March 31, 2000, none of
the proceeds had been utilized and they were invested in short-term, highly
liquid investment grade securities.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
None.
ITEM 5. OTHER INFORMATION.
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) The following exhibits are filed as part of this report:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
10.1 Lease Agreement between the registrant
and WXII/GDM Astor, L.L.C., dated March
17, 2000
27.1 Financial Data Schedule
</TABLE>
(b) We filed a Current Report on Form 8-K on March 30, 2000 announcing
the consummation of our acquisition of Internet Research Group and the
execution of a stock purchase agreement, pursuant to which we agreed to
purchase all the issued and outstanding shares of capital stock of Net
Market Makers.
21
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act, the Registrant
has duly caused this report to be signed on its behalf by the undersigned
thereunto duly authorized.
Date: May 15, 2000
JUPITER COMMUNICATIONS, INC.
/s/ JEAN K. ROBINSON
----------------------------------------------------
Name: Jean K. Robinson
Title: Chief Financial Officer
(principal financial and accounting officer)
22
<PAGE> 1
LEASE
between
WXII/GDM ASTOR, L.L.C.
Landlord
and
JUPITER COMMUNICATIONS, INC.
Tenant
Building:
21 Astor Place, New York, New York
Dated: March 17, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE 1. Demised Premises .......................................... 1
ARTICLE 2. Term ...................................................... 1
ARTICLE 3. Completion and Occupancy of the Premises .................. 2
ARTICLE 4. Rent ...................................................... 4
ARTICLE 5. Use ....................................................... 6
ARTICLE 6. Floor Load ................................................ 7
ARTICLE 7. Rent Adjustments .......................................... 7
ARTICLE 8. Insurance ................................................. 9
ARTICLE 9. Compliance with Laws ...................................... 11
ARTICLE 10. Improvements; Tenants Property ............................ 12
ARTICLE 11. Repairs ................................................... 14
ARTICLE 12. Electricity, Gas, Heating, Ventilation and Air Conditioning 15
ARTICLE 13. Cleaning and Other Services ............................... 17
ARTICLE 14. Damage to or Destruction of the Premises .................. 18
ARTICLE 15. Eminent Domain ............................................ 19
ARTICLE 16. Conditions of Limitation .................................. 20
ARTICLE 17. Re-Entry by Landlord; Remedies ............................ 21
ARTICLE 18. Curing Tenant's Defaults; Fees and Expenses ............... 23
ARTICLE 19. Non-Liability and Indemnification ......................... 23
ARTICLE 20. Surrender ................................................. 24
ARTICLE 21. Assignment, Mortgaging and Subletting ..................... 24
ARTICLE 22. Subordination and Attornment .............................. 28
ARTICLE 23. Access; Change in Facilities .............................. 29
ARTICLE 24. Inability to Perform ...................................... 30
ARTICLE 25. Legal Proceedings; Waiver of Counterclaims and Jury Trial . 30
ARTICLE 26. No Other Waiver ........................................... 31
ARTICLE 27. Arbitration ............................................... 31
ARTICLE 28. Quiet Enjoyment ........................................... 32
ARTICLE 29. Rules and Regulations ..................................... 32
ARTICLE 30. Building Name ............................................. 32
ARTICLE 31. Shoring; No Dedication .................................... 32
ARTICLE 32. Notice of Accidents ....................................... 33
ARTICLE 33. Vaults .................................................... 33
ARTICLE 34. Brokerage ................................................. 33
ARTICLE 35. Security Deposit .......................................... 33
ARTICLE 36. Window Cleaning ........................................... 34
ARTICLE 37. Consents .................................................. 34
ARTICLE 38. Notices ................................................... 35
ARTICLE 39. Estoppel Certificate; Financial Statements; Recording ..... 35
ARTICLE 40. Parties Bound ............................................. 36
ARTICLE 41. Hazardous Substances ...................................... 37
ARTICLE 42. Extension Option .......................................... 38
ARTICLE 43. Bankruptcy or Insolvency .................................. 39
ARTICLE 44. Miscellaneous ............................................. 40
ARTICLE 45. Antenna and Rooftop Space ................................. 42
ARTICLE 46. Historic Tax Credits/IDA Transaction ...................... 43
ARTICLE 47. Definitions; Construction of Terms ........................ 43
</TABLE>
<TABLE>
<S> <C> <C>
EXHIBIT A DESCRIPTION OF LAND ....................................... A-1
EXHIBIT B FLOOR PLAN ................................................ B-1
EXHIBIT C WORK LETTER ............................................... C-1
SCHEDULE A TO EXHIBIT C - LANDLORD'S WORK
SCHEDULE B TO EXHIBIT C - LOBBY SPECIFICATIONS
EXHIBIT D RULES AND REGULATIONS ..................................... D-1
EXHIBIT E FORM OF LETTER OF CREDIT .................................. E-1
EXHIBIT F CERTIFICATE OF OCCUPANCY .................................. F-1
</TABLE>
-i-
<PAGE> 3
LEASE, dated March 17, 2000 between WXII/GDM ASTOR, L.L.C. a Delaware limited
liability company, having an office at c/o GDM Projects LLC, 632 Broadway, Suite
601, New York. New York 10012 ("Landlord"), and JUPITER COMMUNICATIONS, INC., a
Delaware corporation, having an office at 627 Broadway, New York, New York 10022
("Tenant").
W I T N E S S E T H:
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE 1.
DEMISED PREMISES
Section 1.01 (a) Landlord hereby leases to Tenant, and Tenant hereby
hires from Landlord, the entire 4th, 5th and 6th floors (collectively, the
"Initial Premises"), more particularly described on the floor plans annexed
hereto as Exhibit B-1 and made a part hereof in the building ("Building")
located on the land ("Land") known by the street address 21 Astor Place, New
York, New York, in the Borough of Manhattan, City and State of New York, as more
particularly described in Exhibit A annexed hereto and made apart hereof, for
the term hereinafter stated, for the rents hereinafter reserved, and upon and
subject to the terms of this Lease.
(b) Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the entire 7th and 8th floors and a portion of the basement consisting
of approximately 500 square feet (collectively, the "First Additional
Premises"), more particularly described on the floor plans annexed hereto as
Exhibit B-2 and made a part hereof in the Building, for the term hereinafter
stated, for rents hereinafter reserved, and upon and subject to the terms of
this Lease.
(c) Landlord hereby leases to Tenant for a term to commence on the
Second Additional Commencement Date as set forth in Section 2.01(c), and Tenant
hereby hires from Landlord for a term to commence on the Second Additional
Commencement Date as set forth in Section 2.01(c), the entire 9th floor (the
"Second Additional Premises"), more particularly described on the floor plans
annexed hereto as Exhibit B-3 and made a part hereof in the Building, for the
term hereinafter stated, for rents hereinafter reserved, and upon and subject to
the terms of this Lease.
(d) Landlord hereby leases to Tenant for a term to commence on the
Third Additional Commencement Date as set forth in Section 2.01(d), and Tenant
hereby hires from Landlord for a term to commence on the Third Additional
Commencement Date as set forth in Section 2.01(d), the entire 2nd and 3rd floors
(collectively, the "Third Additional Premises"), more particularly described on
the floor plans annexed hereto as Exhibit B-4 and made a part hereof in the
Building, for the term hereinafter stated, for rents hereinafter reserved, and
upon and subject to the terms of this Lease.
(e) The Initial Premises, First Additional Premises, Second Additional
Premises and Third Additional Premises are sometimes hereinafter referred to
individually and collectively as the "Premises".
Section 1.02 Notwithstanding anything to the contrary contained herein,
Landlord shall have the unconditional right to use, occupy, let and sublet the
First Additional Premises, Second Additional Premises and Third Additional
Premises, respectively, until the First Additional Premises Commencement Date
(as hereinafter defined), Second Additional Premises Commencement Date (as
hereinafter defined) and Third Additional Premises Commencement Date (as
hereinafter defined), respectively, and Tenant shall have no right to occupy the
First Additional Premises, Second Additional Premises or Third Additional
Premises until the First Additional Premises Commencement Date, Second
Additional Premises Commencement Date and Third Additional Premises Commencement
Date, except as otherwise provided for herein. Notwithstanding the foregoing,
Landlord agrees not to let and/or sublet (a) the First Additional Premises and
Second Additional Premises and (b) the Third Additional Premises for a term
expiring later than June 30, 2002. Landlord agrees to use its best efforts
(including the commencement of an action and/or proceeding) to evict any
occupant which remains in the Third Additional Premises beyond June 30, 2002.
Notwithstanding that Landlord may be using such best efforts, in the event that
the Third Additional Premises is not delivered on or before the date provided
for in Section 3.04 below, Tenant shall be entitled to the extension of the rent
abatement period referred to therein until the occurrence of the Third
Additional Premises Commencement Date.
Section 1.03 The definitions of certain terms used in this Lease are
set forth in Section 47.01 and in various other Sections of this Lease.
ARTICLE 2.
TERM
Section 2.01 (a) The Initial Premises are leased for a term which shall
commence on a date (the "Commencement Date") which is the earlier of the date
(i) the Initial Premises are available for occupancy as determined pursuant to
Article 3, or (ii) Tenant or anyone claiming under or through Tenant shall first
occupy any part of the Initial Premises for the operation of its business, and
shall end on the last day of the one hundred eightieth (180th) full calendar
month after the Commencement Date ("Expiration Date") unless the Term shall
sooner terminate pursuant to any of the terms of this Lease or pursuant to law.
(b) The First Additional Premises are leased for a term which shall
commence on a date (the "First Additional Premises Commencement Date") which is
the earlier of the date (i) the First Additional Premises are available for
occupancy as determined pursuant to Article 3, or (ii) Tenant or anyone claiming
under or through Tenant shall first occupy any part of the First Additional
Premises for the operation of its business, and shall end on the Expiration
Date, unless the term shall sooner terminate pursuant to any of the terms of
this Lease or pursuant to law.
-1-
<PAGE> 4
(c) The Second Additional Premises are leased for a term which shall
commence on a date (the "Second Additional Premises Commencement Date") which is
the earlier of the date (i) the Second Additional Premises are available for
occupancy as determined pursuant to Article 3, or (ii) Tenant or anyone claiming
under or through Tenant shall first occupy any part of the Second Additional
Premises for the operation of its business, and shall end on the Expiration
Date, unless the term shall sooner terminate pursuant to any of the terms of
this Lease or pursuant to law.
(d) The Third Additional Premises are leased for a term which shall
commence on a date (the "Third Additional Premises Commencement Date") which is
the earlier of the date of (i) the Third Additional Premises are available for
occupy as determined pursuant to Article 3, or (ii) Tenant or anyone claiming
under or through Tenant shall first occupy any part of the Third Additional
Premises for the operation of its business, and shall end on the Expiration
Date, unless the term shall sooner terminate pursuant to any of the terms of
this Lease or pursuant to law.
(e) The term for each of the Initial Premises, First Additional
Premises, Second Additional Premises and Third Additional Premises is
hereinafter collectively referred to as the "Term".
Section 2.02 When each of the Commencement Date, First Additional
Premises Commencement Date, Second Additional Premises Commencement Date and
Third Additional Premises Commencement Date has occurred (subject to the
provisions of Section 3.07 below). Landlord and Tenant shall, upon the request
of either of them, execute a statement prepared by Landlord setting forth such
date (subject to the provisions of Section 3.07 below). Neither Landlord's
failure to request nor Tenant's failure to execute such agreement shall affect
the occurrence of such date (subject to the provisions of Section 3.07 below).
Section 2.03 Except as expressly provided in this Lease, Tenant
expressly waives any right to rescind this Lease under Section 223-a of the New
York Real Property Law or under any present or future statute of similar import
then in force and further expressly waives the right to recover any damages
which may result from Landlord's failure to deliver possession of the (a)
Initial Premises on the Commencement Date, (b) First Additional Premises on the
First Additional Premises Commencement Date, (c) Second Additional Premises on
the Second Additional Premises Commencement Date, and (d) Third Additional
Premises on the Third Additional Premises Commencement Date. Tenant agrees that
the provisions of this Article and Article 3 are intended to constitute "an
express provision to the contrary" within the meaning of said Section 223-a.
ARTICLE 3.
COMPLETION AND OCCUPANCY OF THE PREMISES
Section 3.01 Landlord agrees and covenants to (a) perform the work and
make the installations in the Premises as described and defined as "Landlord's
Work" in Exhibit C ("Work Letter"), and (b) to deliver to Tenant the (i) Initial
Premises on or before April 10, 2000, (ii) the First Additional Premises on or
before May 1, 2000, (iii) the Second Additional Premises on or before January 1,
2001, and (iv) the Third Additional Premises on or before July 1, 2002. All of
the terms of Exhibit C are incorporated herein as if fully set forth at length.
It is expressly understood that Landlord shall have no obligation to perform any
Tenant Work, as defined in Paragraph 3A of the Work Letter.
Section 3.02 (a) For the purposes of Section 2.01, the Initial
Premises, First Additional Premises, Second Additional Premises and Third
Additional Premises, as the case may be, shall be conclusively deemed available
for occupancy as soon as the following conditions shall have been met:
(i) Landlord's Work with respect to the Initial Premises,
First Additional Premises, Second Additional Premises and Third
Additional Premises, as the case may be, shall be substantially
completed in accordance with Exhibit C. Landlord's Work shall be deemed
substantially completed notwithstanding the fact that (A) minor or
insubstantial details of construction, mechanical adjustment or
decoration remain to be performed, subject to the provisions of Section
3.03 below (the "Punch List Items"); and/or (B) portions of Landlord's
Work have not been completed because under good construction scheduling
practice such work should be done after still uncompleted finishing or
other work to be done by or on behalf of Tenant is completed; and
(ii) Landlord shall have given Tenant five (5) days notice
that the condition described in clause (i) above has been satisfied.
(b) In no event shall the performance, the non-performance or the
failure to complete any Tenant Work affect the determination of when the
Premises or any floor thereof are available for occupancy.
(c) Landlord agrees to give Tenant at least ten (10) days prior written
notice of the projected date of the satisfaction of the condition set forth in
Section 3.02(a)(i). Notwithstanding the foregoing, Landlord's failure to give
Tenant such notice shall in no event affect the determination of the
Commencement Date, First Additional Premises Commencement Date, Second
Additional Premises Commencement Date or Third Additional Premises Commencement
Date, as the case may be, or Tenant's obligation to pay Fixed Rent and
Additional Rent as required pursuant to Article 4.
(d) Landlord covenants and agrees that on the Commencement Date (i) the
commercial portion of the lobby of the Building as more particularly described
as the cross-hatched area on the First Floor Plan attached hereto and made a
part hereof as Exhibit B, will be framed and partitioned with dry wall and
painted with a plain white finish, and (ii) one elevator dedicated to the
Premises shall be working and Tenant shall have shared access to the second
elevator in connection with the performance of Tenant's Work. Notwithstanding
anything to the contrary contained in this Section 3.02, Landlord agrees that
the lobby shall be completed (subject to Force Majeure, but in no event shall
any Force Majeure event extend Landlord's obligation hereunder by more than
sixty (60) days in the aggregate) in accordance with the specifications and
drawings attached hereto and made a part hereof as Schedule B to Exhibit C
(which have been approved by Tenant) on the date (the "Lobby Completion Date")
which is thirty (30) days after Landlord's receipt of a written notice from
Tenant notifying Landlord that Tenant has substantially completed Tenant's Work
with
-2-
<PAGE> 5
respect to the Initial Premises and the First Additional Premises. During the
period from the Commencement Date through the Lobby Completion Date, Landlord
agrees to provide Tenant with a clean and well lit lobby, and unobstructed
access through the lobby to the elevators dedicated to the Premises. If Landlord
shall fail to complete the lobby by the Lobby Completion Date (subject in all
cases to delays caused by Force Majeure or any acts of Tenant or Tenant's
agents, employees, contractors or subcontractors), then, if within fifteen (15)
days after receipt of Tenant's notice to Landlord of such non-completion (which
notice shall specify in reasonable detail any items which Tenant has theretofore
discovered were not completed in accordance with the schematic drawings),
Landlord shall not have completed the lobby, Tenant may complete the lobby and
Landlord shall reimburse Tenant within fifteen (15) business days after written
demand therefor, Tenant's reasonable, actual expenses incurred by Tenant in
connection with its completion of such work. In no event shall Tenant have the
right to rescind or terminate this Lease or surrender the Premises (or any part
thereof), if Landlord fails to complete the lobby.
Section 3.03 (a) Subject to Section 3.07 below, within twenty (20) days
after (i) receipt of Landlord's notice set forth in Section 3.02(a)(ii), and
(ii) Tenant has been afforded the opportunity to inspect the relevant portion of
the Premises, Tenant shall be entitled to deliver to Landlord a written notice
which shall describe in reasonable detail any items of Landlord's Work which
Tenant has theretofore discovered were not completed in accordance with this
Article 3 and Exhibit C. If Landlord receives such notice within such twenty day
period, and to the extent such incomplete work is not caused by any act or
omission of Tenant, its agents, employees or contractors, Landlord shall
complete or correct such incomplete work within sixty (60) days after Landlord
receives such notice from Tenant, subject in all cases to delays caused by
Tenant, its agents, employees or contractors, or due to Force Majeure (but in no
event shall any Force Majeure event extend Landlord's sixty day cure period
contained in this Section 3.03(a) by more than an additional sixty (60) days in
the aggregate). If Landlord shall not complete such work within such sixty day
period, then Tenant may complete such work and Landlord shall reimburse Tenant
within fifteen (15) business days after written demand therefor, Tenant's
reasonable, actual expenses incurred by Tenant in connection with its completion
of such work. Subject to Tenant's rights set forth in Section 3.07 below,
Landlord's failure to complete or correct such work shall in no event affect
Landlord's determination of the Commencement Date, First Additional Premises
Commencement Date, Second Additional Premises Commencement Date or Third
Additional Premises Commencement Date, as the case may be, or Tenant's
obligation to pay Fixed Rent and Additional Rent as required pursuant to Article
4.
(b) Within twelve (12) months after each of the Commencement Date,
First Additional Premises Commencement Date, Second Additional Premises
Commencement Date and Third Additional Premises Commencement Date, as the case
may be, Tenant shall be entitled to deliver to Landlord a written notice which
shall describe in reasonable detail any latent defects in the Premises and any
defects in Landlord's Work which Tenant has theretofore discovered with respect
to each of the Initial Premises, First Additional Premises, Second Additional
Premises and Third Additional Premises, as the case may be. If Landlord receives
such notice within such period, and to the extent such latent defects in the
Premises and any defects in Landlord's Work shall not have been caused by any
act or omission by Tenant, its agents, employees or contractors, Landlord shall
correct, or cause its contractors to correct, such latent defects in the
Premises and any defects in Landlord's Work within a reasonable time after
receipt of such notice from Tenant, subject in all cases to delays caused by
Tenant, its agents, employees or contractors, or due to Force Majeure.
Notwithstanding the foregoing, normal wear and tear during such twelve month
period shall not be deemed a latent defect.
Section 3.04 Notwithstanding anything to the contrary contained herein,
if the (a) Commencement Date shall not have occurred on or before April 10,
2000, (b) First Additional Premises Commencement Date shall not have occurred on
or before May 1, 2000, (c) Second Additional Premises Commencement Date shall
not have occurred on or before January 1, 2001, and (d) Third Additional
Premises Commencement Date shall not have occurred on or before July 1, 2002,
regardless of whether the Commencement Date, First Additional Premises
Commencement Date, Second Additional Premises Commencement Date, and/or Third
Additional Premises Commencement Date, as the case may be, shall have been
delayed due to Force Majeure, and such failure shall not have been caused by any
act or omission of Tenant, its agents, employees, contractors, subcontractors,
licensees and/or invitees, then the applicable rent abatement period set forth
in Section 4.05 below shall be extended two (2) days for each day that the
Commencement Date, First Additional Premises Commencement Date, Second
Additional Premises Commencement Date or Third Additional Premises Commencement
Date, as the case may be, shall not occur after the dates set forth above.
Section 3.05 Notwithstanding the provisions of Section 3.02, if there
is a delay in the availability for occupancy of either of the Initial Premises,
First Additional Premises, Second Additional Premises and/or Third Additional
Premises, due to any reason set forth in Paragraph 4 of Exhibit C, then the
Initial Premises, First Additional Premises, Second Additional Premises and/or
Third Additional Premises, as the case may be, shall be deemed available for
occupancy on the date when the same would have been available but for such delay
even though any work to be done by Landlord has not been commenced or completed,
and the additional cost to Landlord to complete either of the Initial Premises,
First Additional Premises, Second Additional Premises and/or Third Additional
Premises, as the case may be, occasioned by such delay shall be promptly paid by
Tenant to Landlord on demand as Additional Rent. For the purposes of the
preceding sentence, the expression "additional cost to Landlord" shall mean the
cost above such cost as would have been the aggregate cost to Landlord of
completing either of the Initial Premises, First Additional Premises, Second
Additional Premises and/or Third Additional Premises, as the case may be, had
there been no such delay. Tenant hereby indemnifies Landlord against any and all
liability arising out of any such delay. Nothing contained in this Section shall
limit or prejudice any of the other rights of Landlord under this Lease.
Section 3.06 Subject to Sections 3.03 and 3.07, the taking of occupancy
of the whole or any part of the Initial Premises, First Additional Premises,
Second Additional Premises and/or Third Additional Premises, as the case may be,
by Tenant shall be conclusive evidence, as against Tenant, that Tenant accepts
possession of the same and that the same and the Building were in good and
satisfactory condition at the time such occupancy was so taken and that the
Initial Premises, First Additional Premises, Second Additional Premises and/or
Third Additional Premises, as the case may be, were substantially as shown on
Exhibit B.
Section 3.07 Notwithstanding anything to the contrary contained herein,
if upon receiving Landlord's notice pursuant to Section 3.02(a)(ii) above,
Tenant shall desire to dispute Landlord's determination of the Commencement
Date, First Additional Premises Commencement Date, Second Additional Premises
Commencement or Third Additional Premises Commencement Date, as the case may be,
Tenant shall, within twenty (20) days after receipt of such Landlord's notice,
send Landlord a written notice specifying in reasonable detail Tenant's
objections to Landlord's determination of the commencement date in question,
then, Tenant, at its sole cost and expense, shall have the right within ninety
(90) days following the date Tenant sends Landlord such notice, to
-3-
<PAGE> 6
commence an action or proceeding for a determination of whether in fact the
Commencement Date, First Additional Premises Commencement Date, Second
Additional Premises Commencement Date or Third Additional Premises Commencement
Date, as the case may be, shall have occurred in accordance with the provisions
of Article 3. In connection with any such action or proceeding, Tenant shall be
entitled to make a claim for any and all rights and remedies against Landlord
which are available to Tenant at law and in equity or under this Lease
(including, without limitation, the right to extend the free rent period
pursuant to Section 3.04 and the right to recover any Fixed Rent paid to
Landlord for any period prior to the commencement date as finally determined by
a court of competent jurisdiction); provided, however, that nothing contained in
this Section 3.07 shall give Tenant the right to seek any termination or
rescission of this Lease or the surrender of the Premises (or any part thereof).
Notwithstanding the foregoing, during such twenty day period, ninety day period,
and/or during the pendency of any action, proceeding or appeal, Tenant shall
continue to be obligated to pay Fixed Rent and Additional Rent as required
pursuant to Article 4. In the event Tenant shall fail to (a) send Landlord its
notice within such twenty day period, or (b) commence an action or proceeding
within such ninety day period, Tenant shall be deemed to have waived its rights
to dispute the determination of the commencement date in question. Nothing
contained in this Section 3.07, shall affect Tenant's obligation to pay Fixed
Rent and Additional Rent as required pursuant to Article 4.
Section 3.08 Notwithstanding anything contained in this Lease to the
contrary and provided that (a) Tenant is not in breach or default of any of the
terms and conditions in this Lease on Tenant's part to observe or perform beyond
applicable notice and cure periods on the date (the "Outside Date") which is (i)
April 10, 2001 with respect to the Initial Premises, (ii) May 1, 2001 with
respect to the First Additional Premises, (iii) January 1, 2002 with respect to
the Second Additional Premises, and (iv) July 1, 2003 with respect to the Third
Additional Premises, (it being expressly agreed that the Outside Date for the
Initial Premises, First Additional Premises, Second Additional Premises, and/or
Third Additional Premises, as the case may be, shall be extended one day for
each day that Landlord shall be prevented from sending Landlord's Notice to
Tenant due to Force Majeure (which Force Majeure delay shall in no event exceed
four (4) months) or due to any act or omission by Tenant or any of Tenant's
employees, agents, contractors, subcontractors, architects or engineers, or by
anyone claiming through or under Tenant), and (b) on or before the Outside Date
for the Initial Premises, First Additional Premises, Second Additional Premises,
and/or Third Additional Premises, as the case may be, Landlord shall not have
sent the notice required by Section 3.02(a)(ii) above ("Landlord's Notice") to
Tenant, then Tenant shall have the right (subject to Landlord's right to cure in
the immediately following sentence) to (i) terminate this entire Lease if
Landlord shall have failed to deliver Landlord's Notice in respect of the
Initial Premises and/or the First Additional Premises, (ii) terminate a portion
of this Lease as to the Second Additional Premises if Landlord shall have failed
to deliver Landlord's Notice in respect of the Second Additional Premises,
and/or (iii) terminate a portion of this Lease as to the Third Additional
Premises if Landlord shall have failed to deliver Landlord's Notice in respect
of the Third Additional Premises, as the case may be, by notifying Landlord of
its intention to so terminate within fifteen (15) business days after the
Outside Date. If Tenant shall send such notice to Landlord as aforesaid and
Landlord shall not have delivered Landlord's Notice to Tenant with such fifteen
day period, this Lease (or portion thereof) shall be deemed terminated at the
expiration of such fifteen day period in which event, this Lease (or part
thereof) shall be of no further force or effect and neither party hereto shall
have any further rights or obligations hereunder. In the event of a partial
termination of this Lease Landlord and Tenant shall execute and deliver a
supplemental agreement modifying this Lease, as of the termination date, which
shall (A) eliminate the portion of the Premises with respect to which this Lease
is terminated, (B) eliminate the Fixed Rent set forth in Section 4.01(a) with
respect to the portion of the Premises so terminated and shall equitably reduce
the Additional Rent and Tenant's Proportionate Share in proportion to the
Premises remaining, and (C) modify the other terms of this Lease to reflect such
partial termination. If Tenant does not so terminate this Lease in the manner
and in the time period hereinbefore set forth, time being of the essence,
Tenant's right to so terminate this Lease shall be void and of no further force
and effect, and this Lease shall continue in full force and effect as if this
Section 3.08 were not a part hereof. Notwithstanding the foregoing, Tenant's
failure to exercise its right of termination under this Section 3.08, shall not
be deemed to affect Tenant's other rights under this Article 3 (including,
without limitation, Section 3.04 above).
ARTICLE 4.
RENT
Section 4.01 (a) Tenant shall pay to Landlord, without notice or
demand, in lawful money of the United States of America, by check drawn on a
bank or trust company which is a member of the New York Clearinghouse
Association or by wire transfer of federal funds, at the office of the Landlord
or at such other place as Landlord may designate, the following:
(i) An annual fixed rent ("Fixed Rent") for the Initial Premises of:
(A) $1,680,000.00 per annum ($140,000.00 per month) for
the period commencing on the Commencement Date
through and including the last day of the ninetieth
(90th) full calendar month after the Commencement
Date; and
(B) $1,764,000.00 per annum ($147,000.00 per month) for
the period commencing on the first (1st) day of the
ninety-first (91st) full calendar month after the
Commencement Date and throughout the remainder of the
Term; payable in equal monthly installments, in
advance, on the first (1st) day of each and every
calendar month during the Term.
(ii) An additional Fixed Rent for the First Additional Premises of:
(A) $1,120,000.00 per annum ($93,333.33 per month) for
the period commencing on the First Additional
Premises Commencement Date through and including the
last day of the ninetieth (90th) full calendar month
after the Commencement Date; and
(B) $1,176,000.00 per annum ($98,000.00 per month) for
the period commencing on the first (1st) day of the
ninety-first (91st) full calendar month after the
Commencement Date and throughout the remainder of the
Term; payable in equal monthly installments, in
advance, on the first (1st) day of each and every
calendar month during the Term.
-4-
<PAGE> 7
(iii) An additional annual Fixed Rent for the Second Additional
Premises of:
(A) $560,000.00 per annum ($46,666.66 per month) for the
period commencing on the Second Additional Premises
Commencement Date through and including the last day
of the ninetieth (90th) full calendar month after the
Commencement Date; and
(B) $588,000.00 per annum ($49,000.00 per month) for the
period commencing on the first (1st) day of the
ninety-first (91st) full calendar month after the
Commencement Date and throughout the remainder of the
Term; payable in equal monthly installments, in
advance, on the first (1st) day of each and every
calendar month during the Term.
(iv) An additional annual Fixed Rent for the Third Additional Premises
of:
(A) $1,120,000.00 per annum ($93,333.33 per month) for
the period commencing on the Third Additional
Premises Commencement Date through and including the
last day of the ninetieth (90th) full calendar month
after the Commencement Date; and
(B) $1,176,000.00 per annum ($98,000.00 per month) for
the period commencing on the first (1st) day of the
ninety-first (91st) full calendar month after the
Commencement Date and throughout the remainder of the
Term; payable in equal monthly installments, in
advance, on the first (1st) day of each and every
calendar month during the Term.
(v) Additional rent ("Additional Rent") consisting of all other sums of
money as shall become due from and be payable by Tenant hereunder (for default
in the payment of which Landlord shall have the same remedies as for a default
in the payment of Fixed Rent).
If Tenant shall fail to pay when due any installment of Fixed Rent or any
payment of Additional Rent for a period of ten (10) days after such installment
or payment shall have become due, Tenant shall pay interest thereon at the
Interest Rate, from the date when such installment or payment shall have become
due to the date of the payment thereof, and such interest shall be deemed
Additional Rent.
(b) There shall be no abatement of, deduction from, counterclaim or
setoff against, Fixed Rent or Additional Rent (collectively, "Rent") except as
otherwise specifically provided in this Lease.
Section 4.02 Notwithstanding the provisions of Section 4.01, Tenant
shall pay $233,333.33 on account of Fixed Rent upon the execution of this Lease,
which shall be credited on a per diem basis toward the payment of the
installment(s) of Fixed Rent first due and payable hereunder. If by reason of
any of the provisions of this Lease, either the Commencement Date, First
Additional Premises Commencement Date, Second Additional Premises Commencement
Date and/or the Third Additional Commencement Date, as the case may be, shall be
any day other than the first (1st) day of a calendar month, Fixed Rent for such
month shall be pro-rated on a per diem basis.
Section 4.03 Tenant covenants to (a) pay the Fixed Rent and Additional
Rent when due and (b) observe and perform and not to suffer or permit any
violation of Tenant's obligations under this Lease.
Section 4.04 If any of the rent payable under the terms of this Lease
shall be or become uncollectible, reduced or required to be refunded because of
any Legal Requirement, Tenant shall enter into such agreement(s) and take such
other steps (without additional expense to Tenant) as Landlord may reasonably
request and as may be legally permissible, to permit Landlord to collect the
maximum rents which from time to time during the continuance of such legal rent
restriction may be legally permissible (and not in excess of the amounts
reserved therefor under this Lease). Upon the termination of such legal rent
restriction, (a) the rents shall become and thereafter be payable in accordance
with the amounts reserved herein for the periods following such termination and
(b) Tenant shall pay to Landlord, to the maximum extent legally permissible, an
amount equal to, (i) the rents which would have been paid pursuant to this Lease
but for such legal rent restriction less, (ii) the rents and payments in lieu of
rents paid by Tenant during the period such legal restriction was in effect.
Section 4.05 Notwithstanding anything to the contrary contained herein,
Tenant shall not be required to pay Fixed Rent or Additional Rent with respect
to the: (a) Initial Premises for the period commencing on the Commencement Date
through and including the one hundred twentieth (120th) day immediately
following the Commencement Date, (b) First Additional Premises for the period
commencing on the First Additional Premises Commencement Date through and
including the one hundred twentieth (120th) day immediately following the First
Additional Premises Commencement Date, (c) Second Additional Premises for the
period commencing on the Second Additional Premises Commencement Date through
and including the one hundred twentieth (120th) day immediately following the
Second Additional Premises Commencement Date, and (d) Third Additional Premises
for the period commencing on the Third Additional Premises Commencement Date
through and including the ninetieth (90th) day immediately following the Third
Additional Premises Commencement Date, subject, in each instance, to further
extension in accordance with the provisions of Section 3.04 above; provided,
however, Tenant shall remain obligated to pay all charges for electricity and
other utilities and any fees reimbursable to Landlord pursuant to Article 10
and/or Exhibit C.
-5-
<PAGE> 8
ARTICLE 5.
USE
Section 5.01 Tenant shall use and occupy the Premises for executive,
general and administrative offices and the following incidental uses: (a) the
incidental use of computer rooms and employee training rooms and (b) the
incidental use of no more than 3,000 square feet of space in the Premises for
pantries and/or lunchrooms, and for no other purpose. The foregoing statement as
to the nature of the business to be conducted by Tenant in the Premises shall
not constitute a representation or guaranty by Landlord that such business may
be conducted in the Premises or is lawful or permissible under any
certificate(s) of occupancy issued for the Premises or the Building, or is
otherwise permitted by law. Landlord represents and warrants to Tenant that as
of the date hereof the current Certificate of Occupancy (subject to an
Alteration Permit) attached hereto and made a part hereof as Exhibit F allows
the use and occupancy of the Premises as specified in and permitted under this
Article 5. Landlord agrees not to amend any Certificate of Occupancy issued for
the Premises or the Building so as to prevent the uses permitted by this Lease.
Section 5.02 The use of the Premises for the purposes specified in
Section 5.01 shall not include and Tenant shall not use, or permit the use of
the Premises or any part thereof for:
(a) the sale of wine, ale, beer or other alcoholic beverages;
(b) the sale of any other products or materials kept in the Premises by
vending machines (except for vending machines provided for use by employees and
guests at the Premises) or otherwise, or demonstrations to the public, or as a
restaurant or bar, or for the sale of candy, food, cigarettes, cigars, tobacco,
newspapers, magazines, beverages, or similar items, or for the preparation,
dispensing or consumption of food or beverages (except with respect to the
preparation, dispensing or consumption of food or beverages for employees, but
subject to the limitation set forth in Section 5.01 above) in any manner
whatsoever;
(c) manufacturing or printing, except for the operation of normal
business office equipment and machines for Tenant's own requirements (as
distinguished from operation for commercial hire or for the sale of the products
or services to others) provided that such use shall not exceed that portion of
the electrical capabilities allocable to the Premises and shall be subject to
the provisions of this Lease;
(d) the rendition of medical, dental or other diagnostic or therapeutic
services, except that Tenant shall have the right to employ a resident nurse for
Tenant's employees normally working at the Premises;
(e) a school of any kind or an employment or placement agency;
(f) the conduct of a public auction of any kind;
(g) the conduct or maintenance of any gambling or gaming activities or
any political activities or any club activities, whether private or public;
(h) the offices or business of a governmental or quasi-governmental
bureau, department or agency, foreign or domestic, including an autonomous
governmental corporation or diplomatic or trade mission; or
(i) any use prohibited by Rule 13 of the Rules and Regulations attached
hereto as Exhibit D.
Section 5.03 Tenant shall not use, occupy, suffer or permit the
Premises or any part thereof to be used in any manner, or suffer or permit
anything to be brought into or kept therein, which would, (a) violate any
provision of any Superior Lease or Superior Mortgage (provided that the use and
occupancy permitted under Section 5.01 shall not be deemed to be a violation of
any provision of any such Superior Lease or Superior Mortgage), and (b) (i)
would adversely affect in more than a de minimis manner the appearance,
character or reputation of the Building as a first-class office building with
retail stores, (ii) subject to Section 9.01, violate any Legal Requirement or
Insurance Requirement, (iii) make void or voidable any insurance policy then in
force with respect to the Real Property or the Premises, (provided that the use
and occupancy permitted under Section 5.01 shall not be deemed to make void or
voidable any insurance policy then in force with respect to the Real Property or
the Premises), (iv) make unobtainable from reputable insurance companies
authorized to do business in New York State, at standard rates, any fire
insurance with extended coverage or liability, elevator, boiler or other
insurance, (provided that the use and occupancy permitted hereunder shall not be
deemed to make unobtainable any fire or liability insurance or other insurance
), (v) cause, or be likely to cause, injury or damage to the Real Property or
any part thereof or to any Building Equipment, (vi) constitute a public or
private nuisance, (vii) violate any certificate of occupancy for the Premises or
the Building, provided, however, that nothing herein contained shall limit
Tenant's ability to use the Premises for the uses permitted under Section 5.01
above, (viii) emit or discharge objectionable noise, fumes, vapors or odors into
the Building or the Building Equipment, (ix) impair or interfere with any of the
Building services, including the furnishing of electrical energy by Landlord or
the public utility company servicing the Building, as the case may be, or the
proper and economical cleaning, heating, ventilating, air-conditioning or other
servicing of the Building, Building Equipment or the Premises, (x) impair or
interfere with the use of any other area of the Building by, or occasion
discomfort annoyance or inconvenience to, Landlord or any other tenant, or (xi)
cause Tenant to default in any of its other obligations under this Lease. The
provisions of this Section, and the application thereof, shall not be deemed to
be limited in any way by the terms of any other Section of this Article or any
of the Rules and Regulations.
Section 5.04 If any governmental license or permit, other than a
certificate of occupancy, shall be required for the proper and lawful conduct of
Tenant's business in the Premises or any part thereof, then Tenant, at its
expense, shall duly procure and thereafter maintain such license or permit and
submit the same to Landlord for inspection. Tenant shall at all times comply
with the terms and conditions of each such license and permit, but in no event
shall failure to procure or maintain such license or permit by Tenant affect
Tenant's obligations hereunder.
Section 5.05 If Tenant engages in the cooking of food, beverages or
baked goods which is not incidental to Tenant's use as permitted in Section 5.01
above, Tenant shall, at Tenant's sole cost and expense, comply with all
applicable Legal Requirements
-6-
<PAGE> 9
and Insurance Requirements and, without limiting the generality of the
foregoing: (a) install dry chemical extinguishing devices (such as Ansul) and
such additional extinguishing devices, grease traps, gas cut-off valves and
other systems as are required by Legal Requirements and Insurance Requirements
and/or as are reasonably required by Landlord from time to time to ensure the
safe, orderly and sanitary operation of the Premises; (b) keep all such devices
and systems in good working order and repair and regularly serviced under a
maintenance agreement as may be required by Legal Requirements, Insurance
Requirements and/or as may be reasonably required by Landlord; (c) install a
Charcoal Filtered Waterwashing Hood (subject to Landlord's specifications) so as
to prevent odors, fumes and gases from emanating outside the Premises; it being
expressly agreed that in no event shall any equipment securing the Premises
(including, without limitation, such Charcoal Filtered Waterwashing Hood,
exhaust ducts or other ventilating equipment or duct work) penetrate the
perimeter of the Premises or the exterior of the Building; (e) place and store
Tenant's garbage and refuse in air-tight containers which shall be washed and
cleaned daily so as to prevent any fumes or odors from emanating from the
Premises; (f) store such garbage and refuse in such containers in the Premises
and prepare same for removal therefrom by the refuse removal contractor
servicing the Building; (g) keep in full force and effect throughout the Term, a
customary, full service preventative extermination contract with a licensed pest
control operator, reasonably acceptable to Landlord, to keep the Premises at all
time free from vermin, rats and mice, and (h) provide such safeguards that, in
Landlord's reasonable judgment, are necessary or advisable to prevent the
accumulation of such garbage or refuse from becoming a nuisance or otherwise
interfering with the safety, comfort or enjoyment of the Building by Landlord or
any other occupants of the Building or their customers, invitees or any others
lawfully in the Building.
ARTICLE 6.
FLOOR LOAD
Section 6.01 Tenant shall not place a load upon any floor of the
Premises that exceeds the live load per square foot requirements of the
Certificate of Occupancy dated October 25, 1984, a copy of which is annexed
hereto as Exhibit F. Subject to the preceding sentence, if Tenant wishes to
place any safes or vaults in the Premises, it may do so at its own expense after
giving notice to Landlord, but Landlord reserves the right to reasonably
prescribe their weight and position.
ARTICLE 7.
RENT ADJUSTMENTS
Section 7.01 In addition to the Fixed Rent hereinbefore reserved,
Tenant covenants and agrees to pay to Landlord, as Additional Rent, sums
computed in accordance with the following sections hereof.
(a) For the purposes of this Article and other provisions of this
Lease:
(i) The term "Taxes" shall mean all real estate taxes,
assessments, special assessments (including, without limitation, any
mall assessments), water and sewer rents, governmental levies, county
taxes or any other governmental charge, general or special, ordinary or
extraordinary, unforeseen as well as foreseen, of any and every kind or
nature whatsoever (exclusive of interest and penalties thereon), which
are or may be assessed or imposed upon the Real Property and the
sidewalks, plazas, streets and alleys in front of or adjacent thereto,
and any rights, including, without limitation, "air rights" or
"development rights", or interests appurtenant thereto under the laws
of the United States, the State of New York or any political
subdivision thereof or by the City of New York, or any political
subdivision thereof. If, due to a future change in the method of
taxation or in the taxing authority, a franchise, income, transit,
profit or other tax or governmental imposition, however designated
(including without limitation any tax, excise or fee, measured by or
payable with respect to any rents, licenses or other charges received
by Landlord and levied against Landlord and/or the Real Property) shall
be levied against Landlord and/or the Real Property in substitution, in
whole or in part, or as an addition to or in lieu of any Taxes, then
such franchise, income, transit, profit or other tax or governmental
imposition shall be deemed to be included within the definition of the
term "Taxes" for the purposes hereof, provided that any such tax,
imposition, fee, levy, charge or license imposed on the income of the
Real Property shall be computed as if the Real Property is the only
asset of the Landlord. The term "Taxes" shall not include (x) any
income, corporate franchise, estate, inheritance, succession, capital
stock or transfer tax levied on Landlord or (y) any increase in Taxes
as a result of an increase in the assessed value of the Real Property
solely attributable to the sale of the Real Property by Landlord. In
the event that the Building is converted to a condominium form of
ownership pursuant to Article 9-B of the New York Real Property Law,
then in such event, the term "Taxes" shall be deemed to mean Taxes
attributable to the condominium unit of which the Premises form a part.
At the reasonable request of Tenant with respect to any Tax Year
occurring within the Term, Landlord shall file (unless a settlement has
been reached prior to the last day before such filing for the
applicable Tax Year must be completed), and thereafter diligently
prosecute, a Protest (as hereinafter defined) to reduce the Taxes or
the assessed valuation of the Building with respect to each such Tax
Year so requested by Tenant. A "Protest" shall mean such necessary
administrative action(s) or court proceedings under applicable law as
shall be necessary to protest the assessed valuation of the Building.
Upon request of Tenant, Landlord shall provide Tenant with the names of
the attorneys pursuing any Protest on behalf of Landlord, and Landlord
shall, as the expense of Tenant, direct such attorneys to respond to
reasonable requests from Tenant (including, without limitation,
providing to Tenant copies of documents filed in connection with such
Protest). Tenant shall keep confidential all information and documents
so obtained (except that Tenant may disclose same if and to the extent
required by law). Tenant agrees to reimburse Landlord for all actual
costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) incurred by Landlord in connection
with a Protest requested by Tenant within ten (10) days after receipt
of Landlord's invoice therefor, provided that any reduction in or
savings in Taxes shall be applied first to reimburse Landlord and
Tenant, for expenses incurred in connection with a Protest.
(ii) The term "Base Tax Year" shall mean the twelve (12) month
period commencing on July 1, 2000 through and including June 30, 2001.
-7-
<PAGE> 10
(iii) The term "Base Taxes" shall mean $560,000.
(iv) The term "Tax Year" shall mean each twelve (12) month
period following the Base Tax Year, any portion of which period occurs
during the term of this Lease.
(v) The term "Tenant's Proportionate Share" shall mean (A)
52.45% for the period commencing with the Commencement Date and ending
on the day immediately preceding the Second Additional Premises
Commencement Date, and (B) 62.45% for the period commencing on the
Second Additional Premises Commencement Date and ending on the day
immediately preceding the Third Additional Premises Commencement Date
and (C) 82.45% for the period commencing on the Third Additional
Premises Commencement Date and ending on the Expiration Date. The
parties hereto acknowledge that Tenant's Proportionate Share is based
upon an assumption that the entire Building contains a total of 140,000
rentable square feet. The calculation of Tenant's Proportionate Share
is based upon a fraction the denominator of which is 140,000. In the
event that the Building is converted to a condominium form of ownership
and if the condominium unit of which the Premises form a part is less
than 100% of the Building, then in such event, the denominator of the
fraction for purposes of calculating Tenant's Proportionate Share shall
be equitably reduced by an amount equal to the portion of the Building
which is not included in the condominium unit of which the Premises
form a part.
(b) Tenant shall pay to Landlord, as Additional Rent hereunder, an
amount (the "Tax Payment") equal to Tenant's Proportionate Share of the amount,
if any, by which the Taxes for any Tax Year, any part of which shall occur
during the term of this Lease, shall exceed the Base Taxes payable, whether such
increase results from a higher tax rate or an increase in the assessed valuation
of the Land or the Building, or both, or from any other cause or reason
whatsoever except as otherwise provided in Section 7.01(a)(i) above. A copy of
the tax bill of The City of New York or other taxing authority imposing Taxes on
the Land or the Building shall be sufficient evidence of the amount of Taxes.
Notwithstanding the fact that the aforesaid Additional Rent is measured by
Taxes, such amount 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 status or for any
other reason whatsoever.
(c) With respect to each Tax Year occurring in whole or in part during
the term of this Lease, Tenant shall pay to Landlord the Tax Payment, in equal
monthly installments during the calendar year in which such Tax Year commences,
in the manner hereinafter described. At any time during the calendar year in
which a Tax Year commences, Landlord may furnish to Tenant a written estimate (a
"Tax Estimate") setting forth Landlord's estimate of the Tax Payment for such
Tax Year ("Estimated Tax Payment"). Such estimate shall be reasonably determined
by Landlord by applying to the most recently announced assessed value of the
Land and Building (whether final or otherwise) such tax rate as Landlord shall
anticipate is the tax rate to be finally determined for such Tax Year. Subject
to adjustment as hereinafter provided, Tenant shall pay Landlord on the first
day of each month during each calendar year occurring in whole or in part during
the term hereof, an amount equal to one-twelfth (1/12th) of the Estimated Tax
Payment for the Tax Year commencing during such calendar year. If Landlord
furnishes a Tax Estimate for the Tax Year subsequent to the commencement of the
calendar year in which such Tax Year begins, then (i) until the first day of the
month following the month in which the Tax Estimate is furnished to Tenant,
Tenant shall continue to pay to Landlord on the first day of each month an
amount equal to the monthly sum payable by Tenant to Landlord with respect to
the previous Tax Year, (ii) promptly after the Tax Estimate is furnished to
Tenant, Landlord shall give notice to Tenant stating whether the amount
previously paid by Tenant to Landlord during such calendar year was greater or
less than the installments of the Estimated Tax Payment to be paid during such
calendar year in accordance with the Tax Estimate, and (A) if there shall be a
deficiency, Tenant shall pay the amount thereof within ten (10) days after
demand therefor, or (B) if there shall have been an overpayment, Landlord shall
credit the amount thereof against the next monthly installments of the
Additional Rent payable under this Lease, and (C) on the first day of the month
following the furnishing to Tenant of the Tax Estimate, and monthly thereafter
until the rendering to Tenant of a Tax Statement (hereinafter defined) for such
Tax Year, Tenant shall pay to Landlord an amount equal to one-twelfth (1/12) of
the amount shown on such Tax Estimate. Within six (6) months of such Tax Year,
(x) Landlord shall furnish to Tenant a written statement (the "Tax Statement")
setting forth the Tax Payment for such Tax Year, which Tax Statement shall be
accompanied by a copy of the tax bill for such Tax Year and shall state whether
the sum of the installments previously paid by Tenant to Landlord pursuant to
the Tax Estimate or otherwise for such Tax Year was greater or less than the sum
of the installments of the Tax Payment to be paid for such Tax Year in
accordance with the Tax Statement, (y) any deficiency or overpayment shall be
disposed of in the manner of a deficiency or overpayment in Estimated Tax
Payment, and (z) on the first day of the month following the month in which the
Tax Statement is furnished to Tenant, and monthly thereafter until a new Tax
Estimate or Tax Statement is furnished to Tenant, Tenant shall pay to Landlord
an amount equal to one-twelfth (1/12th) of the Tax Payment shown on the Tax
Statement.
(d) If the Commencement Date, First Additional Premises Commencement
Date, Second Additional Premises Commencement Date, Third Additional Premises
Commencement Date and/or the Expiration Date, as the case may be, shall occur on
a date other than July 1 or June 30, respectively, any Additional Rent due and
payable under this Section 7.01 for the Tax Year in which the Commencement Date,
First Additional Premises Commencement Date, Second Additional Premises
Commencement Date, Third Additional Premises Commencement Date and/or the
Expiration Date shall occur shall be apportioned in that percentage which the
number of days in the period from the Commencement Date, First Additional
Premises Commencement Date, Second Additional Premises Commencement Date, Third
Additional Premises Commencement Date, as the case may be, to June 30 or from
July 1 to the Expiration Date, as the case may be, both inclusive, shall bear to
the total number of days in such Tax Year. In the event of a termination of this
Lease, any Additional Rent due and payable under this Section 7.01 shall be paid
or adjusted to Landlord or Tenant, as the case may be, within thirty (30) days
after submission of Landlord's Statement. In no event shall Fixed Rent ever be
reduced by operation of this Section 7.01(d) and the rights and obligations of
Landlord and Tenant under the provisions of this Section 7.01 with respect to
any Additional Rent shall survive the termination of this Lease for a period of
one (1) year.
Section 7.02 In addition to the Fixed Rent hereinbefore reserved,
Tenant covenants and agrees to pay to Landlord, as Additional Rent, a cumulative
annual three (3%) percent escalation on Fixed Rent (the "Operating Expense
Payment") which shall be in lieu of reimbursing Landlord for increases in the
operating expenses of the Building throughout the Term. The Operating Expense
Payment shall be payable commencing on (a) the first (1st) anniversary of the
Commencement Date and on the anniversary of such date in each succeeding year
thereafter with respect to the Initial Premises and the First Additional
Premises (provided the First Additional Premises is delivered to Tenant within
thirty (30) days after the Initial Premises), (b) the first (1st) anniversary of
the
-8-
<PAGE> 11
Second Additional Premises Commencement Date and on the anniversary of such date
in each succeeding year thereafter with respect to the Second Additional
Premises, and (c) the first (1st) anniversary of the Third Additional Premises
Commencement Date and on the anniversary of such date in each succeeding year
thereafter with respect to the Third Additional Premises. The Operating Expense
Payment shall be determined on each of the foregoing anniversary dates by
multiplying (x) the Fixed Rent (as escalated pursuant to the provision of this
Section 7.02) payable with respect to the premises in question during the twelve
(12) month period immediately preceding such anniversary date, by (y) three (3%)
percent. Such amount shall be paid in twelve (12) equal monthly installments on
the date Fixed Rent is payable hereunder. If by reason of any provision of this
Lease, either the Commencement Date, First Additional Premises Commencement
Date, Second Additional Premises Commencement Date, Third Additional Premises
Commencement Date and/or the Expiration Date, as the case may be, shall be any
day other than the first (1st) day of a calendar month, the Operating Expense
Payment payable hereunder for such month shall be prorated on a per diem basis.
ARTICLE 8.
INSURANCE
Section 8.01 Tenant shall not do or suffer or permit anything to be
done in or about the Premises or the Building which would: (a) subject Landlord
to any liability for injury to any person or property by reason of any activity
being conducted in the Premises, or by Tenant or anyone claiming under Tenant
elsewhere in the Building, (b) cause any increase in the fire insurance rates
applicable to the Building or the Building Equipment located therein, or (c)
result in the cancellation of or the assertion of any defense by the insurer to
any claim under any policy of insurance maintained by or for the benefit of
Landlord (subject to the terms of this Article).
Section 8.02 If, by reason of any act or omission on the part of Tenant
which is inconsistent with the use permitted hereunder, whether or not Landlord
has consented to the same, the rate of "all risk" or other type of insurance
maintained by Landlord on the Real Property or the Building Equipment or other
property of Landlord shall be higher than it otherwise would be, but for such
act or omission, Tenant shall reimburse Landlord for that part of the premiums
for such insurance paid by Landlord because of such act or omission on the part
of Tenant, which sum shall be Additional Rent and payable on demand. If, due to
the occupancy (which is inconsistent with the use and occupancy permitted
hereunder) or abandonment of, or Tenant's failure to occupy, the Premises as
herein provided, any such insurance shall be canceled by the insurance carrier,
then, in any of such events, Tenant hereby indemnifies Landlord against
liability which would have been covered by such insurance. Landlord shall give
Tenant notice of any such cancellation promptly after Landlord shall have
received written notice thereof. Tenant also shall pay any increase in premiums
on any rent insurance carried by Landlord for its protection against rent loss
through fire or other casualty if such increase shall result from any of the
foregoing events.
Section 8.03 In the event that any dispute should arise concerning
insurance rates, a schedule or "make up" of insurance rates for the Building or
the Premises, as the case may be, issued by the New York Fire Insurance Rating
Organization or other similar body making rates for "all risk" insurance for the
premises concerned, shall be conclusive evidence of the facts therein stated and
of the several items and charges in such rates then applicable to such premises.
Section 8.04 (a) Tenant shall obtain and keep in full force and effect
during the Term, at its own cost and expense, (i) Comprehensive General
Liability Insurance on an occurrence basis to afford protection in an amount of
not less than $10,000,000.00 (except during construction of Tenant's Work or any
other Improvements in which case such insurance shall be in an amount not less
than $20,000,000.00) for personal injury, death or property damage arising out
of any one occurrence or in any increased amount reasonably required by
Landlord, protecting Landlord, Landlord's agents, the Superior Lessor, the
Superior Mortgagee, the Fee Mortgagee and Tenant, as insureds against any and
all claims for personal injury, death or property damage occurring in, upon,
adjacent to or connected with the Real Property or any part thereof, and
containing a contractual liability endorsement covering the matters set forth in
Article 19 hereof; and (ii) insurance against loss or damage by fire, and such
other risks and hazards (including burglary, theft, breakage of glass within the
Premises and, if the Premises are located at or below grade, broad form flood
insurance) as are insurable under then available standard forms of "all risk"
insurance policies, to Tenant's Property and Improvements made at Tenant's sole
cost and expense for the full replacement cost value thereof (including an
"agreed amount" endorsement), protecting Landlord, Landlord's agents, the
Superior Lessor, the Superior Mortgagee, the Fee Mortgagee and Tenant as
insureds; and (iii) business interruption insurance in an amount of not less
than twelve (12) months of rent payable hereunder. During such time as Tenant
shall be constructing any Improvements, Tenant, at its sole cost and expense,
shall carry, or cause to be carried, (i) worker's compensation insurance
covering all persons employed in connection with the Improvements in statutory
limits, (ii) a completed operations endorsement to the Comprehensive Personal
Injury Liability and Property Damage Insurance policy referred to above, (iii)
builder's risk insurance, completed value form, covering all physical loss, in
an amount reasonably satisfactory to Landlord, and (iv) such other insurance, in
such amounts, as is customarily required by other landlords of similar office
buildings in Lower Manhattan.
(b) All such insurance shall be written in form and substance
reasonably satisfactory to Landlord by an insurance company with general policy
holder's ratings of not less than A and a financial rating of not less than
Class XIII as rated in the then most current available "Best's" insurance
reports, and licensed to do business in New York State and authorized to issue
such policies. Upon failure of Tenant to procure, maintain and place such
insurance and pay all premiums and charges therefor, Landlord, upon five (5)
days prior written notice to Tenant, may do so (but shall not be obligated) and
in such event Tenant agrees to pay the amount thereof to Landlord as Additional
Rent on demand. All policies of insurance procured by Tenant shall contain
endorsements providing that (i) such policies may not be materially changed,
amended, reduced, canceled (including for non-payment of premium) or allowed to
lapse with respect to Landlord, or any Superior Lessor, Superior Mortgagee or
Fee Mortgagee except after forty-five (45) days' prior notice from the insurance
company to each, sent by registered or certified mail, return receipt requested;
and (ii) Tenant shall be solely responsible for the payment of all premiums
under such policies and Landlord shall have no obligation for the payment
thereof notwithstanding that Landlord is or may be named as an insured. On the
Commencement Date the original insurance policies or appropriate certificates,
including evidence of the waivers of subrogation required pursuant to Section
8.05, shall be deposited with Landlord. Any endorsements to any such policies
shall also be deposited upon issuance thereof and each renewal or replacement of
a policy shall be so deposited at least twenty (20) days prior to the expiration
of such policy. Tenant shall not carry separate or
-9-
<PAGE> 12
additional insurance, concurrent in form or contributing, in the event of any
loss or damage with any insurance required to be obtained by Tenant under this
Lease.
Section 8.05 Each party agrees to use its best efforts to include in
each of its insurance policies (and, with respect to any equipment in the
Premises leased by Tenant, in the insurance policies covering such equipment
carried by Tenant or the lessors of such equipment) against loss, damage or
destruction by fire or other insured casualty, a waiver of the insurer's right
of subrogation against the other party, or if such waiver should be unobtainable
or unenforceable (a) an express agreement that such policy shall not be
invalidated if the insured waives or has waived before the casualty the right of
recovery against any party responsible for a casualty covered by the policy, or
(b) any other form of permission for the release of the other party. If such
waiver, agreement or permission shall not be, or shall cease to be, obtainable
without additional charge or at all, the insured party shall so notify the other
party promptly after learning thereof. In such case, if the other party shall
agree in writing to pay the insurer's additional charge therefor, such waiver,
agreement or permission shall (if obtainable) be included in the policy.
Section 8.06 As long as Landlord's casualty insurance policies include
the waiver of subrogation or agreement or permission to release liability
referred to in Section 8.05, Landlord, to the extent that such insurance is in
force and collectible, hereby waives any right of recovery against Tenant, any
other permitted occupant of the Premises, and any of their employees, agents or
contractors, for any loss occasioned by fire or any other insured casualty. In
the event that at any time Landlord's casualty insurance carriers shall not
include such or similar provisions in Landlord's policies, the waivers set forth
in the foregoing sentence shall, upon notice given by Landlord to Tenant, be
deemed of no further force or effect with respect to any insured risks under
such policies from and after the giving of such notice (or in the case such
insurer shall not be willing to grant such waiver for all of the required
parties, such waiver shall be of no force or effect only with respect to the
required parties not included in such waiver). In the event Landlord fails to
have casualty insurance in effect as required by this Article 8, the waiver set
forth in the first sentence of this Section 8.06 shall be in full force and
effect to the same extent as if such required insurance (containing a waiver of
subrogation) were in effect. During any period while the foregoing waiver of
rights to recovery is in effect, Landlord shall look solely to the proceeds of
such policies to compensate Landlord for any loss occasioned by fire or other
insured casualty. On the Commencement Date, Landlord shall provide Tenant with
evidence of the waiver of subrogation required pursuant to this Section 8.06.
Section 8.07 As long as Tenant's casualty insurance policies include
the waiver of subrogation or agreement or permission to release liability
referred to in Section 8.05, Tenant, to the extent that such insurance is in
force and collectible, hereby waives (and agrees to cause all other occupants of
the Premises to execute and deliver to Landlord, prior to or simultaneous with
such occupancy, instruments waiving) any right of recovery against Landlord, the
Superior Lessor, the Superior Mortgagee and the Fee Mortgagee and any of their
employees, agents or contractors, for any loss occasioned by fire or other
insured casualty. In the event that at any time Tenant's casualty insurance
carriers shall not include such or similar provisions in Tenant's policies, the
waiver set forth in the foregoing sentence shall, upon notice given by Tenant to
Landlord, be deemed of no further force or effect with respect to any insured
risks under such policies from and after the giving of such notice (or in the
case such insurer shall not be willing to grant such waiver for all of the
required parties, such waiver shall be of no force or effect only with respect
to the required parties not included in such waiver). In the event Tenant fails
to have casualty insurance in effect as required by this Article 8, the waiver
set forth in the first sentence of this Section 8.07 shall be in full force and
effect to the same extent as if such required insurance (containing a waiver of
subrogation) were in effect. During any period while the foregoing waiver of
right of recovery is in effect, Tenant, or any other occupant of the Premises,
as the case may be, shall look solely to the proceeds of such policies to
compensate Tenant or such other occupant for any loss occasioned by fire or
other insured casualty.
Section 8.08 Except as otherwise provided in Section 8.04, nothing
contained in Sections 8.05, 8.06 or 8.07 shall be deemed to impose upon Landlord
or Tenant any duty to procure or maintain any kinds of insurance or any
particular amounts or limits of any such kinds of insurance. The insurance
policies referred to in this Article 8 shall be deemed to include policies
procured and maintained by a party for the benefit of its lessor, mortgagee or
pledgee.
Section 8.09 Landlord shall obtain and maintain in full force and
effect during the Term, at its own cost and expense, (a) Commercial General
Liability Insurance in such amounts and with such deductibles reasonably
comparable to such insurance as is maintained by similarly situated landlords of
similar office buildings in Lower Manhattan, and (b) insurance against loss or
damage by fire, and such other risks and hazards as are insurable under then
available standard forms of "all risk" insurance policies, to the Building and
Landlord's Work for the full replacement cost value thereof.
-10-
<PAGE> 13
ARTICLE 9.
COMPLIANCE WITH LAWS
Section 9.01 (a) Tenant, at its sole cost and expense, shall comply
with all Legal Requirements and all Insurance Requirements that are applicable
to the Premises or the use thereof and shall give Landlord prompt notice of any
lack of compliance with any of the foregoing, except that Tenant shall not be
under any obligation to comply with any Legal Requirements or Insurance
Requirements requiring any structural alteration of the Premises unless said
alteration (i) is necessitated by a condition which has been otherwise created
by, or at the instance of, Tenant, (ii) is attributable to the particular use or
manner of use to which Tenant puts the Premises, other than as permitted by
Section 5.01, (iii) is required by reason of a breach of Tenant's obligations
hereunder, or (iv) is occasioned, in whole or in part, by any act, omission, or
negligence of Tenant or any person claiming through or under Tenant, or any of
their employees, agents, contractors, invitees or licensees. Tenant shall pay
all costs, expenses, fines, penalties and damages which may be imposed upon
Landlord, the Superior Lessor, the Superior Mortgagee or the Fee Mortgagee by
reason of or arising out of Tenant's failure to fully and promptly comply with
the provisions of this Section. Where any structural alteration of the Premises
is required by any such Legal Requirement or Insurance Requirement and, by
reason of the express exception hereinabove contained, Tenant is not obligated
to make such alteration, then Landlord shall make such alteration and pay the
cost thereof. Tenant need not comply with any such Legal Requirement or
Insurance Requirement so long as Tenant shall be contesting the validity or
applicability thereof in accordance with Section 9.01(b). Subject to the
provisions of this Article, Landlord, at its expense, shall comply with all
other Legal Requirements and Insurance Requirements as shall affect the
Premises, the Building and/or the Land, but may similarly defer compliance so
long as Landlord shall be contesting the validity or applicability thereof.
(b) Tenant, upon receipt of Landlord's prior written consent (which
consent shall not be unreasonably withheld or delayed), may contest the validity
or applicability of any Legal Requirement or Insurance Requirement that Tenant
is required to comply with pursuant to this Lease, and may defer compliance
during the pendency of such contest, provided:
(i) Tenant notifies Landlord, each Superior Lessor and each
Superior Mortgagee of Tenant's intention to institute such a contest at
least ten (10) business days prior to the institution or commencement
thereof;
(ii) true and complete copies of all documents, notices,
communications and instruments that Tenant submits, receives or
otherwise comes into possession of in connection with such contest are
immediately given to Landlord, each Superior Lessor and each Superior
Mortgagee concurrently with Tenant's submission, receipt or possession
of same in each instance;
(iii) any such deferral of compliance or contest shall not
subject Landlord, any Superior Lessor or any Superior Mortgagee to
criminal prosecution or subject all or any portion of the Building or
the Land to lien or sale (without limiting the application of the
above, Landlord shall be deemed subject to prosecution for a crime if
Landlord, or its managing agent, or any officer, director, partner,
member, manager, shareholder or employee of Landlord or its managing
agent as an individual, is charged with a crime of any kind or degree
whatsoever, whether by summons or otherwise);
(iv) any such deferral of compliance or contest shall not
interfere with the maintenance, management and operation of the
Building or Landlord's ability to obtain and/or retain all permits and
licenses necessary in connection therewith;
(v) Tenant shall promptly, diligently and continuously
prosecute such contest and keep Landlord advised as to the status of
the proceedings in respect thereof as and when requested by Landlord;
(vi) Tenant furnishes to Landlord security reasonably
satisfactory to Landlord indemnifying Landlord, against any loss or
injury by reason of such contest; and
(vii) if in the reasonable determination of Landlord, such
contest (regardless of whether such determination is made prior to or
after the institution or commencement thereof) will jeopardize or harm
the title, interests or rights of Landlord, in or to the Premises, the
Building, or the Land (or any portion thereof), Tenant, at Tenant's
sole cost, expense and liability, shall immediately cease and terminate
such action and/or proceeding.
Should Tenant desire to contest the validity or applicability of any such Legal
Requirement or Insurance Requirement, it may do so in the name of Tenant or
Landlord or both, provided (A) the same is conducted without cost or expense to
Landlord, and (B) Tenant furnishes to Landlord security reasonably satisfactory
to Landlord indemnifying Landlord, each Superior Lessor and Superior Mortgagee
against any loss or injury by reason of such contest. Subject to the foregoing,
Landlord shall without charge execute and deliver such papers as are reasonably
necessary or proper to permit Tenant to contest the validity or applicability of
any Legal Requirement or Insurance Requirement provided that Landlord shall be
satisfied that the facts set forth in such papers are true and accurate. Tenant
hereby indemnifies Landlord, each Superior Lessor and Superior Mortgagee against
all claims, damages, judgments, penalties, losses, expenses (including, without
limitation, legal expenses (which legal expenses shall be reasonable with
respect to Landlord's legal expenses) which are incurred or suffered as a result
of such contest and deferred compliance.
(c) Notwithstanding anything to the contrary contained in this Article 9,
Tenant shall not be required to perform any improvements to the Premises in
order to comply with Legal Requirements and/or Insurance Requirements that first
become applicable to the Premises during the last three (3) years of the Term,
unless such improvements shall be required for any of the reasons set forth in
clauses (i) through (iv) in Section 9.01(a). Tenant agrees to provide Landlord
with access to the Premises in order to permit Landlord to perform any such
improvements which are not the responsibility of Tenant pursuant to the
immediately preceding sentence. Notwithstanding the foregoing, If Tenant shall
exercise its Extension Option (as hereinafter defined in Article 42), Tenant
shall pay to Landlord, within fifteen (15) days following its exercise of such
Extension Option, an amount equal to the sums paid by Landlord for the
performance of any improvements necessary to comply with Legal Requirements
and/or Insurance Requirements which Tenant would have been obligated to perform,
but for the provisions of this Subsection (c). Tenant's exercise of the
Extension Option shall not be effective until Tenant shall have reimbursed
Landlord for any sums paid by Landlord pursuant to
-11-
<PAGE> 14
this Subsection (c). The provisions of this Subsection (c) shall apply to any
such improvements required to be made by Tenant during the last three (3) years
of the Extension Term (as hereinafter defined in Article 42).
Section 9.02 Any Improvements made or performed by or on behalf of
Tenant or any person claiming through or under Tenant pursuant to this Article
shall be made in conformity with and subject to the provisions of Article 10.
Section 9.03 Notwithstanding anything to the contrary contained
elsewhere in this Lease, if the New York Board of Fire Underwriters or the
Insurance Service Office or any other body exercising the same or similar
functions and having jurisdiction or cognizance of all or any part of the Real
Property or the Premises requires or recommends that (a) any changes,
modifications, alterations or the addition of sprinkler heads or other equipment
be made or supplied in the Building fire protection system by reason of Tenant's
particular use or manner of use, or the location of partitions, trade fixtures
or other contents of the Premises, or (b) for any reason, any such changes,
modifications, alterations or additions be made in the Premises only due to
Tenant's particular use or manner of use of the Premises, Landlord shall make
all such changes, modifications, alterations and additions and Tenant shall pay
the actual, reasonable cost thereof to Landlord as Additional Rent within ten
(10) business days after receipt of an invoice thereof.
ARTICLE 10.
IMPROVEMENTS; TENANTS PROPERTY
Section 10.01 Upon and subject to the terms of this Article (and, with
respect to improvements made in connection with Tenant's initial occupancy of
the Premises, subject to the terms of the Work Letter), Tenant, at anytime and
from time to time during the Term, at its sole cost and expense, may make
improvements in and to the Premises, excluding structural changes provided:
(a) The Improvements will not result in a violation of or require a
change in any certificate of occupancy applicable to the Premises or to the
Building;
(b) In the exercise of its reasonable judgment, Landlord shall
determine that (x) the character or appearance of the outside of the Building
shall not be adversely affected and (y) such Improvements shall not weaken or
impair (temporarily or permanently) the structure or lessen the value of the
Building either during the making of such Improvements or upon their completion;
(c) No part of the Building outside of the Premises shall be physically
affected;
(d) The proper or economical functioning of the Building Equipment, in
the reasonable opinion of Landlord, shall not be adversely affected;
(e) In performing the work involved in making such Improvements, Tenant
shall be bound by and observe all of the terms of this Article;
(f) Upon the termination of this Lease, Tenant shall comply with the
provisions of Section 10.07 with respect to the removal of Improvements;
(g) Tenant shall not use the elevators, other than during such hours
and on such days as are reasonably designated by Landlord from time to time, for
haulage or removal of materials or debris;
(h) Subject to the provisions of Section 10.02, before proceeding with
any improvements, Tenant shall submit to Landlord three copies of detailed plans
and specifications therefor, for Landlord's consent which, subject to Tenant's
compliance with the provisions of this Article 10, shall not be unreasonably
withheld, delayed or conditioned. Subject to the provisions of Article 37,
Tenant shall have the right to submit a dispute to arbitration pursuant to
Article 27 as to whether Landlord shall have reasonably withheld its consent to
the proposed Improvements pursuant to this Subsection (h). Landlord reserves the
right to disapprove any plans and specifications or any item therein in a manner
consistent with the provisions of this Article 10, and to condition its approval
upon Tenant making reasonable revisions to the plans and specifications and/or
supplying Landlord with additional reasonable information. Tenant shall
reimburse Landlord for all reasonable actual expenses incurred by Landlord to
third parties (i.e. architects and engineers) in connection with its decision as
to whether to approve the proposed Improvements. Any Improvements for which
consent has been received shall be performed substantially in accordance with
the approved plans and specifications therefor, and no material amendments or
additions thereto shall be made without the prior consent of Landlord in each
instance. Subject to the provisions of Article 37, if Landlord shall not respond
to Tenant's written notice requesting Landlord's approval of plans and
specifications submitted by Tenant to Landlord as provided in this Section
within fifteen (15) days (or within five (5) days with respect to any
resubmission of disapproved plans and specifications), after receipt by Landlord
of such notice accompanied by all such plans and/or specifications as are
required thereunder, and Landlord shall continue not to respond for a further
period of five (5) days after a second written notice is received by Landlord
from Tenant which shall specify the items to which Tenant's original notice
referred and which shall make reference to this Section, then Landlord shall be
deemed to approve such plans and/or specifications in respect of which Tenant
requested Landlord's approval in said original notice. Notwithstanding anything
to the contrary contained herein, provided Tenant otherwise complies with the
provisions of this Article 10, Tenant may, without the consent of Landlord and
without the submission of plans and specifications, install floor coverings,
objects of art, wall and ceiling coverings, window shades, decorative paneling,
doors, curtains, blinds and other similar improvements which are merely
decorative in nature.
(i) Tenant shall not be permitted to install and make part of the
Premises any materials, fixtures or articles which are subject to liens,
conditional sales contracts, chattel mortgages or security interests (as such
term is defined in the Uniform Commercial Code as in effect in the State of New
York at the time of the making of the Improvement);
-12-
<PAGE> 15
(j) No improvements which require the submission of plans and
specifications with the local building department or any other governmental
authority shall be undertaken except under the supervision of a licensed
architect or licensed professional engineer reasonably satisfactory to Landlord.
(k) The fire protection system design is not thereby modified, altered
or changed; and
(l) Tenant shall not (i) attach or affix any screws or fasteners to the
exterior curtain wall of the building or (ii) install, without the written
consent of Landlord, any materials that will come in contact with the exterior
curtain wall of the Building.
(m) Notwithstanding anything contained in this Section 10.01, Tenant
may, without the consent of Landlord, perform non-structural alterations which
do not (i) cost more than $75,000 in the aggregate during any twelve (12) month
period, and (ii) affect the structure of the Building or any Building Equipment,
provided that (A) Tenant provides Landlord with written notice of any such
non-structural alteration, together with plans and specifications therefore, and
(b) Tenant otherwise complies with the provisions of this Article 10.
Section 10.02 All Improvements shall at all times comply with all Legal
Requirements and Insurance Requirements and all Rules and Regulations (including
any Landlord may reasonably adopt in accordance with Article 29 with respect to
the making of Improvements) and shall be made at such times and in such manner
as Landlord may from time to time reasonably designate. Tenant, at its expense,
shall (a) obtain all necessary municipal and other governmental permits,
authorizations, approvals and certificates for the commencement and prosecution
of such Improvements and for final approval thereof upon completion, (b) deliver
three copies thereof to Landlord and (c) cause all Improvements to be performed
in a good and first-class workmanlike manner, using new materials and equipment
at least equal in quality to the original installations of the Building.
Landlord agrees, at no cost and expense to it, to cooperate reasonably with
Tenant and to execute such documents which are needed to procure such required
permits, authorization, approvals and certificates. Improvements shall be
promptly commenced and completed and shall be performed in such manner so as not
to unreasonably interfere with the occupancy of any other tenant nor delay or
impose any additional expense upon Landlord in the construction, maintenance,
cleaning, repair, safety, management, security or operation of the Building or
the Building Equipment; and if any such additional expense shall be incurred by
Landlord as a result of Tenant's performance of any Improvements, Tenant shall
pay such additional expense as Additional Rent upon demand. Tenant shall furnish
Landlord with satisfactory evidence that the insurance required during the
performance of the Improvements pursuant to Article 8 is in effect at or before
the commencement of the Improvements and, on request, at reasonable intervals
thereafter.
Section 10.03 Tenant, at its expense, shall promptly procure the
cancellation or discharge of all notices of violation arising from or otherwise
connected with Improvements which shall be issued by any public authority having
or asserting jurisdiction.
Section 10.04 Tenant shall promptly pay, in cash, the cost of all
Improvements. Tenant hereby indemnifies Landlord against liability for any and
all mechanic's and other liens filed in connection with any Improvements or
repairs, including the liens of any conditional sales of or chattel mortgages,
title retention agreements, security agreements or financing statements upon,
any materials or fixtures installed in and constituting part of the Premises.
Tenant, at its expense, shall procure the discharge of all such liens within
thirty (30) days after the filing of any such lien against the Premises or the
Real Property. If Tenant shall fail to cause any such lien to be discharged
within the period aforesaid, then, in addition to any other right or remedy,
Landlord, after three (3) days written notice to Tenant, may, but shall not be
obligated to, discharge the same either by paying the amount claimed to be due
or by deposit or bonding proceedings, and in any such event Landlord shall be
entitled, if it elects, to compel the prosecution of an action for the
foreclosure of such lien and to pay the amount of the judgment in favor of the
lien or with interest, costs and allowances. Any amount so paid by Landlord, and
all costs and expenses incurred by Landlord in connection therewith, shall
constitute Additional Rent and shall be paid by Tenant to Landlord on demand.
Section 10.05 All contractors, subcontractors, architects and engineers
shall be subject to the prior written approval of Landlord, which approval shall
not be unreasonably withheld (subject to Section 10.06).
Section 10.06 Tenant agrees that it will not at any time prior to or
during the Term, either directly or indirectly, employ or permit the employment
of any contractor, mechanic or laborer, or permit any materials in the Premises,
if the use of such contractor, mechanic or laborer or such materials would, in
Landlord's reasonable opinion, create any difficulty, strike or jurisdictional
dispute with other contractors, mechanics or laborers engaged by Tenant or
Landlord or others, or would in any way disturb the construction, maintenance,
cleaning, repair, management, security or operation of the Building or any part
thereof. In the event of any interference or conflict, Tenant, upon demand of
Landlord, shall cause all contractors, mechanics or laborers, or all materials
causing such interference, difficulty or conflict, to leave or be removed from
the Building immediately.
Section 10.07 All fixtures, equipment, improvements and appurtenances
attached to, or built into the Premises at the commencement of or during the
Term (collectively "Fixtures"), whether or not at the expense of Tenant, shall
be surrendered to Landlord upon the termination of this Lease except as
otherwise expressly provided in this Lease; provided, however, that any Fixtures
attached to, or built into, the Premises at the expense of Tenant shall be and
remain the property of Tenant during the Term and any Fixtures attached to, or
built into, the Premises at the expense of Landlord shall be and remain the
property of Landlord during the Term. Nothing in this Article 10 shall be
construed to give Landlord title to or prevent Tenant's removal of Tenant's
Property, but upon such removal from the Premises or upon removal of other
installations as may be required by Landlord, Tenant shall immediately and at
its expense, repair any damage to the Premises or the Building caused by such
removal. The term "Fixtures" shall include all electrical, plumbing, heating and
sprinkling equipment, fixtures, outlets, partitions, railways, gates, doors,
vaults, molding, radiator enclosures, cork, rubber, linoleum and composition
floors, ventilating, silencing, air conditioning and cooling equipment, and all
fixtures, equipment, improvements and appurtenances of a similar nature or
purpose attached to or built into the Premises, but shall not include any of
Tenant's Property. Notwithstanding the foregoing, Tenant shall be required to
remove any Specialty Improvement upon the expiration of the term. The term
"Specialty Improvement" shall mean any improvement which is not a customary
office Tenant improvement, such as raised floors, internal stair cases, slab
penetrations and/or other improvements of a similar nature.
-13-
<PAGE> 16
Section 10.08 No approval of plans or specifications by Landlord or
consent by Landlord allowing Tenant to make Improvements in the Premises shall
in any way be deemed to be an agreement by Landlord that the contemplated
Improvements comply with any Legal Requirements or Insurance Requirements or the
certificate of occupancy for the Building nor shall it be deemed to be a waiver
by Landlord of the compliance by Tenant with any of the terms of this Lease.
Notice is hereby given that neither Landlord, Landlord's agents, shall be liable
for any labor or materials furnished or to be furnished to Tenant upon credit,
and that no mechanic's or other lien for such labor or materials shall attach to
or affect any estate or interest of Landlord or the Superior Lessor, Superior
Mortgagee or Fee Mortgagee in and to the Premises or the Real Property.
Section 10.09 Tenant shall keep for a period of five (5) years, records
of Improvements costing in excess of $10,000 and of the cost thereof. Tenant
shall, within fifteen (15) days after demand by Landlord, furnish to Landlord
copies of such records.
Section 10.10 Landmarks Preservation. Tenant is hereby notified that
the Premises are subject to the jurisdiction of The City of New York Landmarks
Preservation Commission (the "LPC"). In accordance with Sections 25-305, 25-306,
25-309 and 25-310 of the Administrative Code of the City of New York and the
rules set forth in Title 63 of the Rules of the City of New York, all as the
same may be amended, revised and/or expanded, any demolition, construction,
reconstruction, alteration or minor work as described in such Sections and such
rules may not be commenced within or at the Premises without the prior written
approval of the LPC. Tenant is notified that such demolition, construction,
reconstruction, alterations or minor work includes, but is not limited to, (i)
work to the exterior of the Premises involving windows, signs, awnings,
flagpoles, banners and storefront alterations and (ii) interior work to the
Premises that (A) requires a permit from the Department of Buildings or (B)
changes, destroys or affects an interior architectural feature of an interior
landmark or an exterior architectural feature of an improvement that is a
landmark or located on a landmark site or in a historic district. Nothing
contained in this Section 10.10 shall be deemed to grant to Tenant any right to
perform any Improvements or other alterations to the Premises which require the
consent of the LPC; it being expressly agreed that Tenant shall make no such
Improvements or file any applications or other submissions in respect thereof to
LPC or any other governmental or quasi-governmental body, in each instance,
without the prior written consent of Landlord. Provided Landlord gives its
consent to such Improvements, Landlord agrees, at no cost to it, to (a)
cooperate reasonably with Tenant; (b) provide information reasonably requested
by Tenant or LPC; and (c) execute such documents and applications which are
needed with respect to the filing of any application or other submission with
the LPC.
Section 10.11 A.D.A.; Local Law 58. Except for the installation of
A.D.A. compliant rest rooms on each floor of the Premises by Landlord as part of
Landlord's Work, with respect to all means of access and egress to and from the
Premises (including all entrances and doorways) and within the Premises (which
shall include any and all means of access and egress to, from and between floors
comprising parts of the Premises if the Premises contain more than one such
floor, other than Building fire stairs and elevators), Tenant shall be
responsible for compliance with the Americans with Disabilities Act (42 U.S.C.
Section 12101 et seq.) and the regulations and Accessibility Guidelines for
Buildings and Facilities issued pursuant thereto, and with New York City Local
Law 58 of 1987, it being understood and agreed that Landlord shall, at its sole
cost and expense, be responsible for compliance with A.D.A. and all such
regulations and Local Law with respect to the public portions of the Building
(including, without limitation, all common areas, main entrance, elevators, fire
stairs and rest rooms on each floor of the Premises).
ARTICLE 11.
REPAIRS
Section 11.01 Tenant, at its sole cost and expense, shall take good
care of the following items (collectively, "Tenant Repair Items"): (a) the
Premises, (b) Building Equipment located in the Premises which exclusively
serves the Premises, (c) that portion of Building Equipment located in the
Premises which serves the Premises as well as other portions of the Building
(provided that Tenant shall not be responsible for the repair, maintenance
and/or replacement of any elevators, elevators shafts, electrical risers,
plumbing risers or other similar risers passing through the Premises, provided
such repairs, maintenance and/or replacements do not arise out of the events set
forth in clauses (i) through (iv) below), and (d) Tenant's Property and the
Fixtures. Tenant, at its sole cost and expense shall make and be responsible for
all repairs, replacements, interior or exterior, structural and otherwise,
ordinary or extraordinary as and when needed to preserve the Building and Tenant
Repair Items, the need for which arises out of (i) the installation, use,
existence or operation of Improvements, Tenant's Property or Fixtures, (ii) the
moving of Tenant's Property or Fixtures in or out of the Building or the
Premises, (iii) the acts, omissions, negligence or misuse of Tenant or any of
its subtenants or any of its or their employees, agents, contractors, licensees
or invitees or their use or occupancy or manner of use or occupancy of the
Premises otherwise than in accordance with the terms of this Lease (except fire
or other casualty caused by Tenant's negligence, if the fire or other casualty
insurance policies insuring Landlord are not invalidated and the rights of
Landlord are not adversely affected by this provision) or (iv) pursuant to the
provisions of Section 9.01, provided, however, that Landlord, at its option, may
make any of the foregoing repairs (other than repairs to Tenant's Property) and
in such event, Tenant shall pay to Landlord the actual reasonable cost thereof,
as Additional Rent, on demand. In no event shall Tenant be required to make, be
responsible for or pay for any repairs which are required as a result of the
negligence of Landlord, its agents, contractors, subcontractors or employees and
Landlord shall be responsible for all such repairs. Tenant, at its sole cost and
expense, shall promptly replace scratched, damaged or broken doors and glass in
and about the Premises and shall be responsible for all repairs and maintenance
of wall and floor coverings in the Premises. Tenant shall promptly make, at its
sole cost and expense, all repairs in or to the Premises for which it is
responsible. If the Premises shall include any space on any ground, street,
mezzanine or basement floor in the Building, Tenant, at its sole cost and
expense, shall make all necessary repairs to all windows and other glass in, on
or about such space and put, keep and maintain all portions of the Premises and
any sidewalks, curbs, entranceways, passageways and vaults adjoining and/or
appurtenant to the Premises in clean and orderly condition, free of dirt,
rubbish, snow, ice and other accumulations and unlawful obstructions. All
repairs made by or on behalf of Tenant or any person claiming through or under
Tenant shall be made and performed in conformity with the provisions of Article
10, and shall be at least equal in quality and class to the original work or
installation. Notwithstanding the foregoing, Landlord's repair obligation set
forth in Section 11.02 below shall include the repair, replacement and
maintenance of the (A) HVAC Units (as hereinafter defined) located on each floor
of the Premises for the first five (5) years of the Term and (B) boilers on the
roof of the Building and the hotwater heaters located in the rest rooms on each
floor of the Premises for the entire Term, provided that any such repairs
replacements and/or maintenance do not arise out of the events set forth in
clauses (i) through (iv) above. Landlord shall, at its sole cost and expense,
keep in full force and effect during such five year period a maintenance
contract for the HVAC Units. After the
-14-
<PAGE> 17
expiration of such five year period Tenant shall be responsible for the repair,
replacement and maintenance of such HVAC Units and shall at its expense, keep in
full force and effect throughout the remainder of the Term a maintenance
contract on such HVAC Units with a contractor approved in advance by Landlord.
Section 11.02 Landlord shall, at its sole cost and expense, be
responsible for making all repairs and replacements (to the extent not the
responsibility of Tenant to repair or replace under Section 11.01 above) to the
roof, foundation, footings, load-bearing columns, concrete slabs and
load-bearing walls of the Building (including load bearing columns, concrete
slabs, load bearing walls and the restrooms on each floor of the Premises),
common areas, lobby, exterior walls and windows, Building Equipment (including
all Building Equipment located in the Premises which are not the responsibility
of Tenant to repair or replace under Section 11.01 above) in a manner consistent
with an office building with retail stores in Lower Manhattan. Notwithstanding
the foregoing, Landlord shall not be required to make any such repairs and
replacements necessitated by (i) the acts or negligence of Tenant or any of its
agents, employees, contractors, subcontractors, subtenants, licensees,
concessionaires or (while in the Premises) invitees, (ii) Tenant's failure to
comply with any provisions of this Lease, (iii) Tenant's failure to properly
perform Tenant's Work, or (iv) Tenant's use of the roof as provided in this
Lease.
Section 11.03 Tenant recognizes and acknowledges that the operation of
the Building Equipment may cause vibration, noise, heat or cold which may be
transmitted throughout the Premises. Landlord shall have no obligation to
endeavor to reduce such vibration, noise, heat or cold beyond what is prevalent
in the Building.
ARTICLE 12.
ELECTRICITY, GAS, HEATING, VENTILATION AND AIR CONDITIONING
Section 12.01 Provision of Utilities. (a) Installation. Landlord shall
install the utility lines and facilities, for electricity, water, sewage and gas
to be supplied to the Premises and shall supply and install the heating and
air-conditioning units for the Premises, all in accordance with certain criteria
set forth in Exhibit C hereof and Tenant shall install such hook-ups thereto for
its own use as are required by it in accordance with the criteria set forth in
Exhibit C hereof, the rules and regulations set forth in Exhibit D hereof and
the rules and regulations of the public utility company or the governmental
agency supplying the same. Tenant shall not at any time overburden or exceed the
capacity of the mains, feeders, ducts, conduits or other facilities by which
such utilities are supplied to, distributed in or serve the Premises. If Tenant
desires to install any equipment which shall require additional utility
facilities or utility facilities of a greater capacity than the facilities
provided by Landlord as set forth in Exhibit C, such installation shall be
subject to the provisions of Article 10. Tenant agrees to pay Landlord, within
five (5) days after written demand therefor, the actual cost of providing such
additional utility facilities or utility facilities of a greater capacity. If
the utility charges provided in this Article 12 are not paid as provided herein,
Landlord may, in addition to any other remedies it may have, discontinue
furnishing any utility services supplied by it upon five (5) days written notice
of its intention to do so without liability to Tenant.
(b) Electricity. Subject to the provisions of this Article 12, Landlord
shall furnish electrical service to a panel box located in the Service Area (as
depicted in the floor plans for each floor of the Premises attached hereto as
Exhibit B (the "Service Area")) on each floor of the Premises for the use of
Tenant for the operation of Tenant's electrical systems and equipment in the
Premises, having the electrical capacity set forth in Exhibit C (the "Permitted
Capacity"). As part of Tenant's Work, Tenant shall connect to the
Landlord-furnished panel box located within the Service Area. Tenant shall be
solely responsible for furnishing and installing all service switches, panel
boards, junction boxes, transformers, wiring, risers, feeders, and other
equipment as is necessary to make all required connections from the Service Area
to the Premises for the provision of electricity to the Premises.
(c) Water. Pursuant to Exhibit C hereof, Landlord will (i) connect the
main water line of the building to the Service Area located on each floor of the
Premises and (ii) connect a water line from the Service Area on each floor of
the Premises to the bathrooms to be built on each floor as part of Landlord's
Work. Tenant shall be solely responsible for furnishing and installing such
other lines and equipment as is necessary to extend water from the Service Area
located on each floor of the Premises to the Premises, and any distribution
facilities in respect thereof in the Premises, all of which Tenant shall install
at its sole cost and expense in accordance with the criteria set forth in
Article 10, Exhibit C, Exhibit D and the rules and regulations of the applicable
utility company.
(d) Heat and Air-conditioning. Pursuant to Exhibit C hereof, Landlord
shall install (i) in the Service Area located on each floor of the Premises an
air-cooled air conditioning unit (the "HVAC Units"), and (ii) on the roof of the
Building a boiler(s), each of which shall be sufficient to adequately service
each respective floor of the Premises in accordance with the standards set forth
in Exhibit C. It is understood and agreed that, except for the HVAC Units and
the boiler(s) described in the previous sentence, Landlord is not obligated to
provide any heating or air-conditioning service or equipment to the Premises.
Subject to the provisions of Article 10, Tenant may install supplemental heating
and air conditioning equipment, including duct work, required to service its
needs in the Premises, provided such equipment does not exceed the Permitted
Capacity or otherwise interfere with any other Building Equipment.
Notwithstanding the foregoing, Tenant shall not install any through wall or
window mounted air-conditioning units in the Premises. Tenant further agrees to
keep the Premises at all times at a temperature sufficiently high to prevent the
freezing of water pipes and fixtures.
(e) Gas Service. Pursuant to Exhibit C hereof, Landlord shall furnish
gas service (valved and capped) to the Service Area located on each floor of the
Premises. Upon the receipt of the prior written approval of Landlord or
Landlord's representative in accordance with Article 10 and the applicable
utility company, Tenant shall install any further piping, lines and other
equipment as is necessary to extend gas service to satisfy its requirements from
each Service Area to the rest of the Premises.
Section 12.02 Sufficiency. Tenant acknowledges and agrees that the
utilities and facilities described herein and in Exhibit C are adequate for
Tenant's needs in respect of the use or consumption of any and all utility
service in the Premises. Without limitation to the foregoing, Tenant
acknowledges and agrees that the electrical service described in this Article 12
and in Exhibit C is adequate for Tenant's needs including, without limitation,
(i) Tenant's reasonable use of normal equipment and such lighting, electrical
appliances and other machines and equipment as Landlord may reasonably permit to
be installed in the Premises and (ii) the operation
-15-
<PAGE> 18
of the heating and air conditioning systems to be installed in the Premises, it
being agreed that in no event shall the electrical energy required by Tenant for
such uses exceed the capacities set forth on Exhibit C.
Section 12.03 Meters and Payment. (a) Landlord, at its own expense,
shall, on or before September 1, 2000, install a check meter, submeter or
submeters (and connections to Building Equipment measuring usage), at a
location(s) designated by Landlord, to measure Tenant's consumption of
electricity and gas in the Premises, which submeter(s) shall be maintained by
Landlord at its own expense.
(b) Tenant shall pay to Landlord, for its consumption of electricity at
the Premises, a sum equal to 105% of the product obtained by multiplying (i) the
Cost Per Kilowatt Hour, by (ii) the actual number of kilowatt hours of electric
current consumed by Tenant in such billing period. "Cost Per Kilowatt Hour"
means the total cost incurred by Landlord to provide electricity to the
commercial portions of the Building during a particular billing period,
including energy charges, demand charges, surcharges, time-of-day charges, fuel
adjustment charges, rate adjustment charges, taxes, rebates and any other
factors used by the utility company in computing its charges to Landlord,
divided by the total kilowatt hours purchased by Landlord to provide electricity
to the Building during such period. Such payments shall be made to Landlord, as
Additional Rent within five (5) days after bills therefor are rendered by
Landlord
(c) Tenant shall pay for all gas furnished to the Premises as shown on
said meters referred to herein and for all maintenance, repairs and replacements
to the equipment required to provide gas to the Premises and for all other costs
and expenses from time to time relating to gas service to the Premises. Such
payments, plus an amount equal to five percent (5%) of such payments which
represents Landlord's administrative charge for supervision and overhead, shall
be made to Landlord, as Additional Rent on demand after bills therefor are
rendered by Landlord.
(d) If any tax is imposed upon Landlord's receipts from the sale or
resale of any utility, including but not limited to electricity, to Tenant,
Tenant shall reimburse Landlord for such tax, if and to the extent permitted by
law. Where more than one submeter measures Tenant's consumption of any utility
in the Premises, the utility measured by each submeter shall be computed and
billed separately in accordance with the provisions set forth above.
(e) If for any period any check meter, submeter or submeters are not
installed or are not operational in the Premises, including the period of
Tenant's performance of Tenants Work, then, based upon Landlord's initial
estimate of Tenant's use of the utilities in the Premises ("Landlord's Initial
Estimate"), Tenant shall pay to Landlord as Additional Rent each month (i) an
amount equal to the product of (A) $1.50, subject to adjustment for any
increases in rates or taxes and (B) the number of rentable square feet in the
Premises, for electricity charges, and (ii) an amount equal to the product of
(A) $1.00, subject to adjustment for any increases in rates or taxes and (B) the
number of rentable square feet in the Premises, for gas charges. However,
notwithstanding anything contained herein to the contrary, Landlord, or a
consultant selected by Landlord, shall have the right to enter the Premises and
Tenant shall permit Landlord or said consultant to have access to Tenant's
electrical and gas facilities at all reasonable times to determine if Tenant's
use of the utilities in the Premises exceeds Landlord's Initial Estimate. If
Tenant's use of the utilities in the Premises does exceed Landlord's Initial
Estimate, Landlord shall have the right to furnish to Tenant a statement of
Landlord's determination as to the amount that Tenant shall pay Landlord on a
monthly basis for electricity and gas, and the same shall become binding upon
the parties unless, within thirty (30) days, Tenant notifies Landlord that it
disputes the amount of such payment, in which event the parties shall in good
faith make reasonable attempts to come to an agreement, and, if Landlord and
Tenant cannot agree thereon, the amount of such adjustment shall be determined,
based on standard practices, by an independent consultant selected by Landlord
and approved by Tenant, which approval shall not be unreasonably withheld or
delayed. Tenant shall permit said independent consultant to have access to the
Premises and Tenant's electrical, water and gas facilities for the foregoing
purpose at all reasonable times. The fee of such consultant shall be paid by
Tenant unless such consultant finds that Landlord's determination was overstated
by more than ten percent (10%), in which case the fee shall be paid by Landlord.
When the amount of such payment is so determined, Landlord and Tenant shall
execute a supplementary agreement to reflect such amount, which shall be
effective from the date of the unmetered usage of such utilities by Tenant and
be made retroactively if necessary. Any adjustment shall be effective even if
such supplementary agreement is not executed and delivered. Pending the
determination of the amount of the payment, Tenant shall pay to Landlord the
amount of such payment as specified in Landlord's statement. Thereafter if it is
determined that Tenant has overpaid, Tenant shall receive a credit against Fixed
Rent in the amount of the overpayment, said credit to be applied against the
next accruing installment(s) of Fixed Rent.
(f) Use of Utilities. Tenant shall at all times comply with the rules
and regulations of all of the utility companies supplying any utilities to the
Building, including, but not limited to, electricity, water, gas,
telecommunications, television and cable. Tenant shall not use any electrical
equipment that, would exceed the Permitted Capacity or interfere with electrical
service to other tenants of the Building. Tenant shall not make or perform, or
permit the making or performance of any alterations to wiring installations or
other electrical facilities in or serving the Premises, or make any additions to
the equipment or other appliances in the Premises that utilize electrical energy
other than in accordance with this Lease (including, without limitation, Article
10). Should Landlord grant such approval, all additional risers or other
equipment required therefor shall be provided by Tenant (or, at Landlord's
election, by Landlord) at Tenant's sole cost and expense, provided that Landlord
shall not be obligated to approve any such alteration or installation if, in
Landlord's judgment, the same are unnecessary or will cause permanent damage or
injury to the Building or the Premises or will cause or create a hazardous
condition or entail excessive or unreasonable alterations, repairs or expense or
interfere with or disturb other tenants.
Section 12.04 Service Disruption. Landlord shall not be liable in any
way to Tenant for any failure, defect or interruption of, or change in the
supply, character or quantity of, any utility service furnished to the Premises
for any reason unless caused solely by the gross negligence or willful
misconduct of Landlord or its agents, employees, contractors, invitees or
licensees, nor shall there be any allowance to Tenant for a diminution of rental
value, nor shall the same constitute an actual or constructive eviction of
Tenant, in whole or in part, or relieve Tenant from any of its Lease
obligations, and no liability shall arise on the part of Landlord by reason of
inconvenience, annoyance or injury to business, whether any such utility is
provided by public or private utility or by any generation system owned and
operated by Landlord. Landlord shall use commercially reasonable efforts to
minimize interference with Tenant's use and occupancy of the Premises as a
result of any such failure, defect or interruption of, or change in the supply,
character or quantity of, any such utility service, including the employment of
overtime labor.
-16-
<PAGE> 19
Section 12.05 Discontinuance of Service. Notwithstanding any provision
to the contrary contained in this Article 12, Landlord reserves the right to
discontinue furnishing all utilities, including, but not limited to electricity,
water and gas, to Tenant in the Premises on not less than thirty (30) days
notice to Tenant; provided, that Landlord is required to discontinue furnishing
such utility under applicable Legal Requirements or Insurance Requirements or
for reasons beyond Landlord's control. If Landlord is compelled to discontinue
furnishing such utility to Tenant, then this Lease shall continue in full force
and effect and shall be unaffected thereby, except that from and after the
effective date of such discontinuance, Landlord shall not be obligated to
furnish such utility to Tenant hereunder. If Landlord so discontinues furnishing
any utility, then Tenant shall arrange to obtain such utility directly from any
utility company or other provider serving the Premises to the extent available,
suitable and safe for such purposes. All equipment that may be required to
obtain electricity, water or gas, or any other utility, of substantially the
same quantity, quality and character shall be installed by Landlord, at the sole
cost and expense of Landlord or Tenant, if such discontinuance arises out of the
acts or omissions of Tenant. Landlord will not voluntarily discontinue
furnishing any utility to Tenant until Tenant is able to receive such utility
directly from the utility company or other company servicing the Building,
unless the utility company or other company is not prepared to furnish such
utility to the Premises on the date required as a result of Tenant's delay or
negligence in arranging for service, Tenant's refusal to provide the utility
company or other company with a deposit or other security reasonably requested
by the utility company, or Tenant's refusal to take any other action requested
by the utility company or other company.
Section 12.06 Conservation. Tenant further agrees to operate the
heating and air conditioning equipment in accordance with their design criteria
unless a recognized energy or water conservation program, guidelines,
regulations or recommendations promulgated by any Federal, State, City or other
governmental or quasi-governmental bureau, board, department, agency, office,
commission or other subdivision thereof or any successor thereto or other
organization serving a similar function shall provide for any reduction in
operations below said criteria in which case such equipment shall be operated so
as to provide reduced service in accordance with such program, guidelines,
regulations or recommendations. In addition, Tenant shall comply with any
utility conservation program required pursuant to Legal Requirements or
Insurance Requirements and any other reasonable program of a similar nature
which Landlord may institute from time to time and required of substantially all
of the tenants in the Building.
Section 12.07 Tenant has advised Landlord that Tenant may be entitled
to receive electric energy made available through Landlord to the Premises (or
any portion thereof) by Consolidated Edison ("Con Ed") at a reduced rate
pursuant to Con Ed's Business Incentive Rate program ("BIR Energy"). Landlord,
at Tenant's expense, agrees to reasonably cooperate with Tenant's efforts to
obtain BIR Energy, including, without limitation, by promptly executing and
delivering, upon the request of Tenant, any applications, documents or
instruments reasonably required by Tenant or Con Ed in connection therewith.
Further, Landlord agrees that Con Ed and persons authorized by them shall have
the right from time to time to enter upon any portion of the Building (which
such entry may be supervised by a representative of Landlord) on reasonable
advance notice to Landlord and otherwise in accordance with the provisions of
this Lease, for the purpose of inspecting the submeters. During each applicable
billing period during which Tenant receives BIR Energy, Landlord shall pass
along to Tenant (by credit or refund in its sole discretion) the full amount of
any credit or reduction with respect to the BIR Energy obtained exclusively by
Tenant that is received by Landlord (if any), with respect to the Premises from
Con Ed during or for such applicable billing period. The dollar amount by which
Landlord's electrical bills (or any of them) are reduced by Con Ed (whether such
reduction by way of credit or otherwise) during any applicable billing period,
as a result of the provision of BIR Energy, shall be referred to herein as the
"BIR Amount." The dollar amount of the credit or reduction set forth by Con Ed
on any of Landlord's electrical bills for any applicable billing period with
respect to the Premises shall be dispositive as between Landlord and Tenant of
the amount of the BIR Amount applicable to such applicable period. Landlord
shall use reasonable efforts to have Con Ed note on all of its bills such credit
or reduction with respect to the BIR Energy applicable to Tenant. Tenant hereby
indemnifies and agrees to hold Landlord harmless against any and all liability,
loss, damage, cost and expense (including reasonable attorneys' fees and
disbursements) incurred in connection with or arising from (a) Landlord's
execution and delivery of such applications, documents or instruments under this
Section 12.07, and (b) any adverse impact on Landlord's electric bills with
respect to other portions of the Building arising from the BIR Energy benefits
obtained by Tenant. Landlord agrees to maintain Con Ed as the electric service
provider for the Premises and shall not change such electric service provider at
any time during the Term.
ARTICLE 13.
CLEANING AND OTHER SERVICES
Section 13.01 (a) Tenant, at its sole cost and expense, shall cause the
Premises, including the interiors of the windows thereof, to be cleaned in
accordance with standards maintained by other similar, high quality office
buildings in Lower Manhattan. Tenant shall keep in full force and effect
throughout the Term a cleaning maintenance contract.
(b) Landlord, at its sole cost and expense, shall cause all public
portions of the Building, (including, the exterior of the windows of the
Premises), to be cleaned in accordance with standards maintained by other
similar high quality office buildings in Lower Manhattan. Landlord shall be
obligated to clean the exterior of the windows of the Premises not less than two
(2) times during any twelve (12) month period.
Section 13.02 Landlord, at Landlord's expense, shall dedicate to the
office portion of the Building two (2) elevators providing service twenty-four
(24) hours a day, seven (7) days a week. Landlord shall not be required to
furnish any operator service for automatic elevators. If Landlord shall, at
anytime, elect to furnish operator service for any automatic elevators, Landlord
shall have the right to discontinue furnishing such service. In the event of an
emergency or for the performance of any repairs, Landlord shall have the right
to discontinue, temporarily, the use of any one or more cars in any of the banks
provided reasonable elevator service is provided to the Premises.
Section 13.03 Landlord, at Landlord's expense, shall employ (a) a
porter(s) for the Building who will be available at the Building on business
days from 9:00 a.m. to 5:00 p.m. and who will be on call twenty-four (24) hours
a day, seven (7) days a week, and (b) a security guard who will be stationed in
the lobby of the Building on business days from 8:30 a.m. to 7:30 p.m. and on
Saturdays from 9:00 a.m. to 5:00 p.m.
-17-
<PAGE> 20
Section 13.04 Landlord shall supply reasonably adequate quantities of
hot and cold water to a point or points in the Premises for ordinary lavatory,
cleaning, drinking and sprinkler purposes. If Tenant requires, uses or consumes
water for any other purpose, Landlord may install a water meter and measure
Tenant's consumption of water for such other purpose. Tenant shall pay Landlord
the cost of any such meter and its installation and the cost of keeping such
meter and any such installation equipment in good working order and repair as
Additional Rent on demand. Tenant agrees to pay for water consumed as shown on
said meter and all sewer and any other rent, tax, levy or charge based thereon
which now or hereafter is assessed, imposed or a lien upon the Premises or the
Building, as and when bills are rendered.
Section 13.05 Landlord reserves the right to stop, interrupt or reduce
service of the heating, ventilating or air conditioning systems, elevator,
electrical energy, or plumbing or any other service or systems, solely if
necessary because of Force Majeure, Legal Requirements or Insurance Requirements
or for repairs. Landlord reserves the right to stop, interrupt or reduce service
of the heating, ventilating or air conditioning systems, elevator, electrical
energy, or plumbing or any other service or systems, because of improvements
which are necessary, or which are in the reasonable judgment of Landlord
desirable. Landlord shall have no liability to Tenant for failure to supply any
such service or system during such period. Landlord agrees, however, to provide,
if possible, reasonable advance notice to Tenant of such repairs and to use its
commercially reasonable efforts so that any such repairs, alterations and
improvements shall be made with a minimum amount of inconvenience to Tenant and
that Landlord will diligently proceed therewith to completion, subject to Force
Majeure. Landlord shall endeavor to temporarily interrupt any service set forth
herein during non-business hours if, in Landlord's reasonable judgment, such
interruption during non-business hours (a) may be performed without additional
expense to Landlord, and (b) shall not subject Landlord to any liability with
any other tenant in the Building.
Section 13.06 Only persons approved by Landlord in advance (which
approval shall not be unreasonably withheld) will be permitted to furnish
laundry, linen, towels, drinking water, ice, food, beverages, bootblacking,
barbering and other similar supplies and services to Tenant. Landlord may fix
the hours during which and the regulations under which said supplies and
services are to be furnished. However, Tenant, its regular office employees, or
invitees may personally bring food or beverages into the Building for
consumption within the Premises solely by Tenant, its regular office employees
or invitees. In all events, all food and beverages shall be carried in closed
containers.
Section 13.07 Only persons approved by Landlord in advance (which
approval shall not be unreasonably withheld) shall be permitted to act as
maintenance contractor for all waxing, polishing, lamp replacement, cleaning and
maintenance work in the Premises, provided that the quality thereof and the
charges therefor are reasonably comparable to that of other contractors
servicing a first class office building with retail space. Nothing herein
contained shall prohibit Tenant from performing such work for itself by use of
its own regular employees. Landlord may fix the hours during which and
regulations under which such services are to be furnished. Landlord expressly
reserves the right to act as or to designate at any time and from time to time,
an exclusive contractor for all or any one or more of said services, provided
that the quality thereof and the charges therefor are reasonably comparable to
that of other contractors; and Landlord furthermore expressly reserves the right
to exclude from the Building any person attempting to furnish any of said
services but not so designated by Landlord.
Section 13.08 Landlord will not be required to furnish any services,
including window or other cleaning services, except as otherwise expressly
provided in this Lease.
Section 13.09 Landlord shall, at the request of the Tenant, maintain
Tenant's proportionate share of the listings on the directory in the Building
lobby, which shall include the name of the Tenant and any officers or employees
of Tenant. Tenant shall deliver to Landlord, on or before the Commencement Date,
a list of all names to be in included in the directory. Tenant may deliver
revised listings to Landlord from time to time throughout the term (but Landlord
shall not be obligated to revise the directory more than once a month), without
additional charges therefor.
Section 13.10 Landlord agrees to provide at least two (2)
telecommunication service providers with access to the Building's existing riser
cable system. Subject to the provisions of Article 10, Tenant, at its sole cost
and expense, shall be responsible for connecting to the Building's existing
riser cable system.
ARTICLE 14.
DAMAGE TO OR DESTRUCTION OF THE PREMISES
Section 14.01 If the Premises or any part thereof shall be damaged or
rendered untenantable by fire or other insured casualty and Tenant gives prompt
notice thereof to Landlord and this Lease is not terminated pursuant to any
provisions of this Article, Landlord shall proceed, with reasonable diligence
after the collection of the insurance proceeds attributable to such damage, to
repair or cause to be repaired such damage to the Basic Construction of the
Premises and Landlord's Work. All other repairs required by reason of such
casualty shall be performed by Tenant, at its sole cost and expense, promptly
and with due diligence after the collection of its insurance proceeds. Except as
provided in Sections 8.08 and 14.07, and so long as Tenant is not in default
under this Lease beyond applicable notice and cure periods provided herein for
the cure thereof, Fixed Rent, Additional Rent and Tenant's Proportionate Share
shall be equitably abated to the extent that the Premises shall have been
rendered Untenantable, such abatement to be from the date of such damage to the
earlier of (x) the date Tenant shall first re-open for business or (y) the
ninetieth (90th) day immediately following the date the repairs to the Basic
Construction of the Premises and the Landlord's Work shall have been
substantially completed; provided, however, should Tenant reoccupy a portion of
the Premises for the operation of its business during the period the repair work
is taking place and prior to the date such damage is substantially repaired,
then the Fixed Rent allocable to such reoccupied portion, based upon the
proportion which the reoccupied portion of the Premises bears to the total area
of the Premises, shall be payable by Tenant from the date of such occupancy. The
term "substantially repaired" as used herein shall mean repaired except for
minor details or so-called "punch-list items", the non-performance of which
shall not preclude Tenant from reoccupying the affected portion or all of the
Premises, as the case may be, and conducting its business therein.
Section 14.02 (a) If the Premises shall be totally damaged or rendered
wholly Untenantable by fire or other casualty and Landlord has not terminated
this Lease pursuant to Section 14.03, Landlord shall within sixty (60) days from
the date of such damage
-18-
<PAGE> 21
or destruction, deliver to Tenant a written notice setting forth Landlord's
architect's estimate of the substantial completion date for the repairs
("Landlord's Repairs") required by Landlord to be made under Section 14.01. In
the event that such estimate shall provide that Landlord's Repairs cannot be
substantially completed within nine (9) months from the date of such damage or
destruction, (exclusive of delay due to Force Majeure or adjustment of insurance
which such delay shall in no event exceed three (3) months), then, within thirty
(30) days after Tenant's receipt of such notice, Tenant may terminate this
Lease, by giving Landlord thirty (30) days notice of such termination. If such
notice of termination shall be given, this Lease shall terminate as of the date
provided in such notice of termination with the same affect as if that date were
the Expiration Date, without prejudice, however, to Landlord's rights and
remedies against Tenant under the terms of this Lease. In the event that Tenant
does not exercise its option to terminate this Lease, Landlord shall have nine
(9) months from the date of such damage or destruction and such additional time
after such date (but in no event to exceed three (3) months), as shall equal the
aggregate period Landlord may have been delayed in doing so by Force Majeure or
adjustment of insurance (the "Repair Period") to substantially complete
Landlord's Repairs. If Landlord has not given Tenant notice that it has
substantially completed Landlord's Repairs within the Repair Period, then,
within thirty (30) days after the date on which Landlord is required to complete
the repairs pursuant to this Section, Tenant may serve notice on Landlord of its
intention to terminate this Lease, and, if within said thirty (30) day period
Landlord shall not have substantially completed the making of Landlord's
Repairs, this Lease shall terminate on the expiration of such thirty (30) day
period as if such termination date were the Expiration Date without prejudice,
however, to Landlords and Tenant's rights and remedies against the other under
the terms of this Lease.
(b) If at anytime during the Term (i) more than thirty-five (35%) percent
of the Premises shall be damaged and rendered Untenantable by fire or other
casualty, and (ii) Landlord has not terminated this Lease pursuant to Section
14.03, then Tenant shall have the right, exercisable within thirty (30) days
after the date of such fire or casualty, to notify Landlord in writing that it
is terminating this Lease
Section 14.03 If the Premises shall be totally damaged or rendered wholly
Untenantable by fire or other casualty or if the Building shall be so damaged by
fire or other casualty that substantial alteration or reconstruction of the
Building shall, in Landlord's sole opinion, be required (whether or not the
Premises shall have been damaged by such fire or other casualty), then in any
such event Landlord may, at its option, terminate this Lease, by giving Tenant
thirty (30) days' notice of such termination, within ninety (90) days after the
date of such fire or other casualty. In the event that such notice of
termination shall be given, this Lease shall terminate as of the date provided
in such notice of termination (whether or not the Term shall have commenced)
with the same affect as if that date were the Expiration Date without prejudice,
however, to Landlord's rights and remedies against Tenant under the terms of
this Lease. If, at any time prior to Landlord giving Tenant the aforesaid notice
of termination or commencing the repairs pursuant to Section 14.01, there shall
be a Successor Landlord, such Successor Landlord shall have a further period of
sixty (60) days from the date of so taking possession to terminate this Lease by
thirty (30) days' notice to Tenant and in the event that such a notice of
termination shall be given, this Lease shall terminate as of the date provided
in such thirty (30) day notice of termination (whether or not the Term shall
have commenced) with the same effect as if that date were the Expiration Date
without prejudice, however, to Landlord's (or Successor Landlord's) rights
against Tenant under the terms of this Lease.
Section 14.04 Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting in any way
from any such damage by fire or other casualty or the repair thereof. Landlord
shall not be obligated to carry insurance of any kind on Tenant's Property or
any improvements made at Tenant's sole cost and expense, and Landlord shall not
be obligated to repair any damage thereto or replace the same.
Section 14.05 Except as expressly provided in Section 8.06, nothing
herein contained shall relieve Tenant from any liability to Landlord or to its
insurers in connection with any damage to the Premises or the Building by fire
or other casualty if Tenant shall be legally liable in such respect.
Section 14.06 This Article shall be considered an express agreement
governing any cases of damage to or destruction of the Building or any part
thereof by fire or other casualty, and Section 227 Real Property Law of the
State of New York providing for such a contingency in the absence of such
express agreement, and any other law of like import now or hereafter enacted,
shall have no application in such case.
Section 14.07 Notwithstanding any of the foregoing provisions of this
Article, if, by reason of some action or inaction on the part of Tenant or any
of its employees, agents, licensees or contractors, either (a) Landlord or the
Superior Lessor, the Superior Mortgagee or the Fee Mortgagee shall be unable to
collect all of the insurance proceeds (including rent insurance proceeds)
applicable to damage or destruction of the Premises or the Building by fire or
other casualty or (b) the Premises or the Building shall be damaged or destroyed
or rendered completely or partially Untenantable on account of fire or other
casualty then, without prejudice to any other remedy which may be available
against Tenant, the abatement of rent provided for in this Article shall not be
effective to the extent of the uncollected insurance proceeds and Landlord shall
have no obligation to restore the Basic Construction of the Premises or
Landlord's Work.
ARTICLE 15.
EMINENT DOMAIN
Section 15.01 If the whole of the Real Property or the Premises shall
be acquired or condemned by eminent domain for any public or quasi-public use or
purpose, this Lease shall terminate as of the date of the vesting or acquisition
of title in the condemning authority with the same effect as if said date were
the Expiration Date.
(a) If less than the whole of the Real Property or the Premises is
acquired or condemned by eminent domain (whether or not such acquisition or
condemnation may have rendered the Premises (or remainder thereof) commercially
unsuitable for the Permitted Uses), neither Landlord nor Tenant shall have the
right to terminate this Lease and this Lease and all of the terms and provisions
thereof shall continue in full force and effect, except that the Fixed Rent,
Additional Rent payable hereunder and Tenant's Proportionate Share shall be
reduced, as of the date of the vesting or acquisition of title in the condemning
authority, in the same
-19-
<PAGE> 22
proportion that the area of the Premises acquired or condemned bears to the
original Premises demised and, to the extent Landlord shall receive an award in
condemnation, Landlord shall repair those items which it is required to repair
under Section 14.01 as near to its former condition as the circumstances will
permit; provided, however, that Landlord, in any event, shall not be required to
spend for such restoration work any amounts in excess of the amount collected by
Landlord as damages for the condemnation of such portion of the Premises, and
Tenant, at Tenant's expense, shall make all necessary repairs and alterations to
Tenant's Work and all of its trade fixtures, decorations, signs and contents.
Notwithstanding the provisions of this Subsection (b), provided that Tenant
shall not be in default under any of the terms, covenants and conditions of this
Lease beyond applicable notice and cure periods contained herein, Tenant shall
have the right to terminate this Lease upon thirty (30) days prior written
notice to Landlord if fifteen (15%) percent or more of the Premises is acquired
or condemned.
(b) Notwithstanding anything to the contrary set forth in this Lease,
if more than fifteen (15%) percent of the Building shall be acquired or
condemned as aforesaid or if any part of the Building is acquired or condemned
so as to render, in Landlord's reasonable business judgment, the remainder
commercially unsuitable for use as a mixed use building, Landlord shall have the
right, by written notice given to Tenant within thirty (30) days after the date
of such acquisition or condemnation, to terminate this Lease, such termination
to be effective as of the date of the vesting or acquisition of title in the
condemning authority.
Section 15.02 In the event of any such acquisition or condemnation of
all or any part of the Real Property, Landlord shall be entitled to receive the
entire compensation or award for any such acquisition or condemnation. Tenant
shall have no claim against Landlord or the condemning authority, for the value
of any unexpired portion of the Term or for Tenant's leasehold interest and
Tenant hereby expressly assigns to Landlord all of its right, title and interest
in and to any such award, and also agrees to execute any and all further
documents that may be required in order to facilitate the collection thereof by
Landlord. Nothing contained in this Section shall be deemed to prevent Tenant
from making a separate claim in any condemnation proceeding for any moving
expenses or for the value of any Tenant's Property which would be removable at
the end of the Term pursuant to the provisions of Article 10 and for the
unamortized cost of Tenant's Improvements, but only if such award shall be made
by a condemnation court in addition to, and shall not adversely affect or result
in a reduction of, the award made by it for the Real Property and the Building
Equipment so taken.
Section 15.03 If the temporary use or occupancy of all or any part of
the Premises shall be condemned or taken for any public or quasi-public use or
purpose during the Term, this Lease and the Term shall be and remain unaffected
by such condemnation or taking and Tenant shall continue responsible for all of
its obligations hereunder (except to the extent prevented from so doing by
reason of such condemnation or taking) and it shall continue to pay the rent in
full. In the event of any such condemnation or taking, Tenant shall be entitled
to appear, claim, prove and receive the entire award unless the period of
temporary use or occupancy extends beyond the Expiration Date, in which event
Landlord shall be entitled to appear, claim, prove and receive that portion of
the award as represents the cost of restoration of the Premises and the balance
of any such award shall be apportioned between Landlord and Tenant as of the
Expiration Date. At the termination of such occupancy prior to the Expiration
Date, Tenant, at its own expense, will restore the Premises as nearly as
possible to their condition prior to the condemnation or taking. Notwithstanding
the foregoing, any lump sum award received by Tenant as compensation for
temporary use and occupancy of the Premises shall be delivered to and held by
Landlord in trust for the making of rent payments. The rights and interests of
Landlord and Tenant to any award received or receivable with respect to a
condemnation or taking for temporary use or occupancy shall be in all other
respects governed by the applicable provisions of the Superior Lease and the
Superior Mortgage and in the event of any conflict between the terms of this
Section and of the Superior Lease and the Superior Mortgage, those of the
Superior Lease and the Superior Mortgage shall govern.
Section 15.04 If the grade of any street upon which the Real Property
is situated or abuts shall be changed by any competent authority, this Lease and
the Term shall nevertheless continue in full force and effect, and Landlord
shall be entitled to collect from such authority the entire award or
compensation that may be made in such proceedings. Tenant hereby expressly
assigns to Landlord all of its right, title and interest in and to every such
award or compensation and agrees to execute any and all further documents that
may be required in order to facilitate the collection thereof by Landlord.
Section 15.05 The terms "condemnation" and "acquisition" as used herein
shall include any agreement in lieu of or in anticipation of the exercise of the
power of eminent domain between the Superior Lessor or Landlord and any
governmental authority authorized to exercise the power of eminent domain. In
the event that there shall be any dispute between Landlord and Tenant arising
out of the provisions of this Article, such dispute shall be settled by
arbitration pursuant to Article 27.
Section 15.06 Should any part of the Premises be taken to effect
compliance with any Legal Requirement other than in the manner hereinabove
provided in this Article, then if such compliance is the obligation of Tenant,
Tenant shall not be entitled to any diminution or abatement of rent or other
compensation from Landlord therefor, but if such compliance is the obligation of
Landlord, the rent shall be equitably adjusted in the manner provided in Section
15.01.
ARTICLE 16.
CONDITIONS OF LIMITATION
Section 16.01 This Lease and the Term and estate hereby granted are
subject to the limitations that:
(a) if Tenant shall file a voluntary petition in bankruptcy or
insolvency, or shall be adjudicated a bankrupt or insolvent, or shall file any
petition or answer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or
any future federal bankruptcy code or any other present or future applicable
federal, state or other statute or law (foreign or domestic), or shall make an
assignment for the benefit of creditors or shall seek or consent or acquiesce in
the appointment of any trustee, receiver or liquidator of Tenant or of all or
any part of Tenant's Property; or
(b) if, within sixty (60) days after the commencement of any proceeding
against Tenant, whether by the filing of a petition or otherwise, seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future federal bankruptcy code or any
other present or future applicable federal, state or other statute or law
(foreign or domestic), such proceeding shall not have been dismissed, or if,
within sixty (60) days after the appointment of any trustee,
-20-
<PAGE> 23
receiver or liquidator of Tenant or of all or any part of Tenant's Property,
without the consent or acquiescence of Tenant, such appointment shall not have
been vacated or otherwise discharged, or if any execution or attachment shall be
issued against Tenant or any of Tenant's Property pursuant to which the Premises
shall be taken or occupied or attempted to be taken or occupied; or
(c) if any financial statement or other financial information furnished
by Tenant or Guarantor pursuant to the provisions of this Lease or at the
request of Landlord (including credit bureau reports or statements) shall
evidence or disclose either net worth or net assets of Tenant or Guarantor at
least 50% less than the net worth or net assets, as the case may be, shown in
either the immediately prior financial statement or in the financial statement
furnished at the time of execution of this Lease of Tenant or Guarantor, as the
case may be, and Tenant fails to furnish to Landlord promptly after notice from
Landlord to Tenant requesting it, an additional security deposit so that the
aggregate amount of security then held by Landlord shall be equal to the
aggregate of the Fixed Rent and Additional Rent payable hereunder for the twelve
(12) full calendar months immediately preceding such notice, which security
shall be held by Landlord pursuant to the terms of Article 35 until Tenant or
Guarantor, as the case may be, shall furnish succeeding annual financial
statements to Landlord evidencing increases of not less than 25% over each prior
statement of Tenant and Guarantor, as the case may be, in both net worth and net
assets; or
(d) if Tenant shall default in the payment when due of any installment
of Fixed Rent or in the payment when due of any Additional Rent, and such
default shall continue for a period of five (5) days after notice by Landlord to
Tenant of such default; provided, however, that Tenant shall not be entitled to
receive from Landlord more than two (2) notices in any twelve (12) month period
for its failure to pay Fixed Rent or Additional Rent and thereafter Landlord
shall not be obligated to provide Tenant with notice of such default for a
period of the following twelve (12) months; or
(e) if Tenant shall default in the performance of any term of this
Lease on Tenant's part to be performed (other than the payment of Fixed Rent and
Additional Rent) and Tenant shall fail to remedy such default within twenty (20)
days after notice by Landlord to Tenant of such default, or if such default is
of such a nature that it cannot be completely remedied within said period of
twenty (20) days if Tenant shall not (x) promptly upon the giving by Landlord of
such notice, advise Landlord of Tenant's intention to institute all steps
necessary to remedy such situation, (y) promptly institute and thereafter
diligently prosecute to completion all steps necessary to remedy the same, and
(z) complete such remedy within a reasonable time after the date of the giving
of said notice by Landlord; and in any event prior to such time as would either
(i) subject Landlord, Landlord's agents, the Superior Lessor, the Superior
Mortgage or the Fee Mortgagee to prosecution for a crime or (ii) cause a default
under the Superior Lease or the Superior Mortgage (provided Landlord shall have
delivered a copy of such Superior Lease or Superior Mortgage to Tenant); or
(f) if any event shall occur or any contingency shall arise whereby
this Lease or the estate hereby granted or the unexpired balance of the Term
would, by operation or law or otherwise devolve upon or pass to any person other
than Tenant except as is expressly permitted under Article 21;
then in any of said events Landlord may give to Tenant notice of intention to
terminate this Lease to end the Term and the estate hereby granted at the
expiration of three (3) days from the date of the giving of such notice, and, in
the event such notice is given, this Lease and the Term and estate hereby
granted (whether or not the Term shall have commenced) shall terminate upon the
expiration of said three (3) days with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 17.
Section 16.02 Nothing in Section 16.01 shall be deemed to require
Landlord to give the notice therein provided for prior to the commencement of a
summary proceeding for nonpayment of rent or a plenary action for the recovery
of rent on account of any default in the payment of the same, it being intended
that such notices are for the sole purpose of creating a conditional limitation
hereunder pursuant to which this Lease shall terminate and if Tenant thereafter
remains in possession or occupancy, it shall become a holdover tenant.
Section 16.03 If at any time, (a) Tenant shall be comprised of two or
more persons, or (b) there is a Guarantor of any of Tenant's obligations under
this Lease, the word "Tenant", as used in Subsections (a) and (b) of Section
16.01 and this Section 16.03, shall mean any one or more of the persons
primarily or secondarily liable for Tenant's obligations under this Lease.
Section 16.04 If the notice provided for in Section 16.01 shall have
been given and this Lease shall be terminated, then, in any such event, Landlord
may without notice terminate all services.
ARTICLE 17.
RE-ENTRY BY LANDLORD; REMEDIES
Section 17.01 (a) If Tenant shall default in the payment when due of
any installment of Fixed Rent or in the payment when due of any Additional Rent
and such default shall continue for a period of five (5) days after notice from
Landlord to Tenant of such default or if this Lease and the Term shall terminate
as provided in Article 16:
(i) Landlord and Landlord's agents may immediately, or at any
time after such default or after the date upon which this Lease and the
Term shall terminate, re-enter the Premises or any part thereof,
without notice (except as required by law), either by summary
proceedings or by any other applicable action or proceeding, or by
force or otherwise (without being liable to indictment, prosecution or
damages thereof), and may repossess the Premises and dispossess Tenant
and any other persons from the Premises and remove any and all of its
or their property and effects from the Premises, without liability for
damage thereto, to the end that Landlord may have, hold and enjoy the
Premises and in no event shall reentry be deemed an acceptance of
surrender of this Lease; and
(ii) Landlord, at its option, may relet the whole or any part
or parts of the Premises from time to time, either in the name of
Landlord or otherwise, to such tenant or tenants, for such term or
terms ending before, on or after the Expiration Date, at such rental or
rentals and upon such other terms and conditions, which may include
concessions and free rent
-21-
<PAGE> 24
periods, as Landlord, in its sole discretion, may determine. Landlord
shall have no obligation to relet the Premises or any part thereof and
shall in no event be liable for refusal or failure to relet the
Premises or any part thereof, or, in the event of such reletting, for
refusal or failure to collect any rent upon any such reletting and no
such refusal or failure shall operate to relieve Tenant of any
liability under this Lease or otherwise to affect any such liability.
Landlord, at Landlord's option, may make such repairs, improvements,
alterations, additions, decorations and other physical changes in and
to the Premises as Landlord, in its sole discretion, considers
advisable or necessary in connection with any such reletting or
proposed reletting, without relieving Tenant of any liability under
this Lease or otherwise affecting any such liability.
(b) No such re-entry or taking possession of the Premises by Landlord
shall be construed as an election by Landlord to terminate this Lease, unless
Landlord gives written notice to Tenant of such election. In the event Landlord
relets the whole or any part or parts of the Premises pursuant to this Article
17 without terminating this Lease, Landlord may at any time thereafter elect to
terminate this Lease for such previous default.
Section 17.02 Tenant, on its own behalf and on behalf of all persons
claiming through or under Tenant, including all creditors, does hereby expressly
waive any and all rights, so far as is permitted by law, which Tenant and all
such persons might otherwise have to (a) the service of any notice of intention
to re-enter or to institute legal proceedings to that end, (b) redeem the
Premises or any interest therein, (c) re-enter or repossess the Premises, or (d)
restore the operation of this Lease, after Tenant shall have been dispossessed
by a judgment or by a warrant of any court or judge, or after any re-entry by
Landlord, or after any termination of this Lease, whether such dispossess,
re-entry by Landlord or termination shall be by operation of law or pursuant to
the provisions of this Lease. The words "re-enter", "re-entry" and "re-entered"
as used in this Lease shall not be deemed to be restricted to their technical
legal meanings.
Section 17.03 In the event of any breach or threatened breach by Tenant
or any person claiming through or under Tenant of any of the terms of this
Lease, Landlord shall be entitled to enjoin such breach or threatened breach and
shall have the right to invoke any right allowed at law or in equity, by statute
or otherwise, as if re-entry, summary proceedings or other specific remedies
were not provided for in this Lease.
Section 17.04 If this Lease shall terminate as provided in Article 16,
or by or under any summary proceeding or any other action or proceeding, or if
Landlord shall re-enter the Premises as provided in this Article, or by or under
any summary proceeding or any other action or proceeding, then, in any of said
events:
(a) Tenant shall pay to Landlord all rent to the date upon which this
Lease shall have been terminated or to the date of re-entry upon the Premises by
Landlord, as the case may be;
(b) Landlord shall be entitled to retain all monies, if any, paid by
Tenant to Landlord, whether as advance rent, security or otherwise, but such
monies shall be credited by Landlord against any rent due at the time of such
termination or re-entry or, at Landlord's option, against any damages payable by
Tenant;
(c) Tenant shall be liable for and shall pay to Landlord, as damages,
any deficiency between the rent payable hereunder for the period which otherwise
would have constituted the unexpired portion of the Term (conclusively presuming
the Additional Rent to be the same as was payable for the year immediately
preceding such termination or re-entry) and the net amount if any of rents ("Net
Rent") collected under any reletting effected pursuant to the provisions of
Section 17.01 for any part of such period (first deducting from the rents
collected under any such reletting all of Landlord's reasonable expenses in
connection with the termination of this Lease or Landlord's re-entry upon the
Premises and in connection with such reletting, including, without limitation,
all repossession costs, brokerage commissions, legal expenses, alteration costs
and other expenses of preparing the Premises for such reletting);
(d) Any deficiency in accordance with subdivision (c) above shall be
paid in monthly installments by Tenant on the days specified in this Lease for
the payment of installments of Fixed Rent. Landlord shall be entitled to recover
from Tenant each monthly deficiency as the same shall arise and no suit to
collect the amount of the deficiency for any month shall prejudice Landlord's
right to collect the deficiency for any prior or subsequent month by a similar
proceeding. Alternatively, suit or suits for the recovery of such deficiencies
may be brought by Landlord from time to time at its election;
(e) Whether or not Landlord shall have collected any monthly
deficiencies as aforesaid, Landlord shall be entitled to recover from Tenant,
and Tenant shall pay Landlord, on demand, as and for liquidated and agreed final
damages and not as a penalty, a sum equal to the amount by which the Fixed Rent
and Additional Rent payable hereunder for the period to the Expiration Date from
the latest of the date of termination of this Lease, the date of re-entry or the
date through which monthly deficiencies shall have been paid in full
(conclusively presuming the Additional Rent to be the same as payable for the
year immediately preceding such termination or re-entry) exceeds the then fair
and reasonable rental value of the Premises for the same period, both discounted
at the rate of 6% per annum to present worth. If, before presentation of proof
of such liquidated damages to any court, commission or tribunal, the Premises,
or any part thereof, shall have been relet by Landlord for the period which
otherwise would have constituted the unexpired portion of the Term, or any part
thereof, the amount of rent upon such reletting shall conclusively be deemed to
be the fair and reasonable rental value for the part or the whole of the
Premises (as the case may be) so relet during the term of the reletting; and
(f) In no event shall Tenant be entitled (i) to receive any excess of
any Net Rent under subdivision (c) over the sums payable by Tenant to Landlord
hereunder or (ii) in any suit for the collection of damages pursuant to this
Section, to a credit in respect of any Net Rent from a reletting except to the
extent that such Net Rent is actually received by Landlord prior to the
commencement of such suit. If the Premises or any part thereof should be relet
in combination with other space, then proper apportionment on a square foot area
basis shall be made of the rent received from such reletting and the expenses of
reletting.
Section 17.05 (a) If this Lease be terminated as provided in Article 16
or by or under any summary proceeding or any other action or proceeding, or if
Landlord shall re-enter the Premises, Tenant covenants and agrees,
notwithstanding anything to the contrary contained in this Lease;
-22-
<PAGE> 25
(i) That the Premises shall be, upon such earlier termination
or re-entry, in the same condition as that in which Tenant has agreed
to surrender them to Landlord on the Expiration Date;
(ii) That Tenant, on or before the occurrence of any event of
default hereunder, shall have performed every covenant contained in
this Lease for the making of any Improvement to the Premises or for
repairing any part thereof; and
(iii) That, for the breach of either Subdivision (i) or (ii)
of this Subsection, or both, Landlord shall be entitled immediately,
without notice or other action by Landlord, to recover, and Tenant
shall pay, as and for agreed damages therefor, the then cost of
performing such covenants, plus interest thereon at the Interest Rate
for the period between the date of the occurrence of any default and
the date when any such work or act, the cost of which is computed,
should have been performed under the other terms of this Lease had such
default not occurred.
(b) 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 occupation of the Premises by Tenant, and the performance of any
such term shall not be considered to be rent or other payment for the use of
said 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 the
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.
Section 17.06 Except as set forth in Section 19.06, nothing herein
contained shall be construed as limiting or precluding the 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.
Section 17.07 Each right of Landlord and Tenant provided for in this
Lease shall be cumulative and shall be in addition to every other right provided
for in this Lease or now or hereafter existing at law or in equity, by statute
or otherwise, and the exercise or beginning of the exercise by Landlord of any
one or more of such rights shall not preclude the simultaneous or later exercise
by Landlord and Tenant of any or all other rights provided for in this Lease or
now or hereafter existing at law or in equity, by statute or otherwise.
ARTICLE 18.
CURING TENANT'S DEFAULTS; FEES AND EXPENSES
Section 18.01 If Tenant shall default in the performance of any term of
this Lease on Tenant's part to be performed beyond any applicable notice and
cure periods, Landlord, without thereby waiving such default and without
liability to Tenant in connection therewith, may, but shall not be obligated to,
perform the same for the account and at the expense of Tenant, without notice in
case of emergency and upon five (5) days' prior notice in all other cases,
Landlord may enter the Premises at any time to cure any default without any
liability to Tenant. Bills for any reasonable expenses incurred by Landlord in
connection with any such performances or involved in collecting or endeavoring
to collect rent or enforcing or endeavoring to enforce any rights against Tenant
under or in connection with this Lease or pursuant to law, including any cost,
expense and disbursement involved in instituting and prosecuting summary
proceedings, as well as bills for any property, material, labor or services
provided, furnished or rendered, including reasonable attorneys' fees and
disbursements, shall be paid by Tenant as Additional Rent on demand. In the
event that Tenant is in arrears in payment of Fixed Rent or Additional Rent,
Tenant waives Tenant's right, if any, to designate the items against which any
payments made by Tenant are to be credited and Landlord may apply any payments
made by Tenant to any items Landlord sees fit, irrespective of and
notwithstanding any designation or requests by Tenant as to the items against
which any such payments shall be credited.
ARTICLE 19.
NON-LIABILITY AND INDEMNIFICATION
Section 19.01 Neither Landlord nor Landlord's agents, officers,
directors, shareholders, partners or principals (disclosed or undisclosed) shall
be liable to Tenant or Tenant's agents, employees, contractors, invitees or
licensees or any other occupant of the Premises, and Tenant hereby indemnifies
Landlord against any loss, cost, liability, claim, damage, expense (including
reasonable attorneys' fees and disbursements), penalty or fine incurred in
connection with or arising from any injury to Tenant (or to any of Tenant's
agents, employees, contractors, subcontractors, guests, invitees, licensees,
concessionaires and/or subtenants) for any damage to, or loss (by theft or
otherwise) of, any of Tenant's Property or of the property of any of Tenants'
agents, employees, contractors, subcontractors, guests, invitees, licensees,
concessionaires and/or subtenants, irrespective of the cause of such injury,
damage or loss, unless due to the negligence or willful misconduct of Landlord
or Landlord's agents, employees, contractors, invitees or licensees, it being
understood that no property, other than such as might normally be brought upon
or kept in the Premises as incidental to the reasonable use of the Premises for
the purposes herein permitted will be brought upon or be kept in the Premises;
provided, however, that even if due to any such negligence of Landlord or
Landlord's agents, Tenant waives, to the full extent permitted by law, any claim
for consequential damages in connection therewith. Landlord and Landlord's
agents shall not be liable, to the extent of Tenant's insurance coverage, for
any loss or damage to any person or property even if due to the negligence of
Landlord or Landlord's agents. Any Building employee to whom any property shall
be entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant's
agent with respect to such property and neither Landlord nor Landlord's agents
shall be liable for any loss of or damage to any such property by theft or
otherwise.
Section 19.02 Neither any (a) performance by Landlord, Tenant or others
of any repairs, improvements, alterations, additions, installments,
substitutions, betterments or decorations in or to the Real Property, Building
Equipment or Premises, (b) failure of Landlord or others to make any repairs or
improvements, (c) damage to the Building Equipment, Premises or Tenant's
Property, (d) injury to any persons, caused by other tenants or persons in the
Building, or by operations in the construction of any private, public or
quasi-public work, or by any other cause, (e) latent defect in the Building,
Building Equipment or Premises, (f)
-23-
<PAGE> 26
temporary covering or bricking up of any windows of the Premises for any reason
whatsoever including Landlord's own acts, nor any permanent covering or bricking
up of any such windows if required by any Legal Requirement or Insurance
Requirement or the declaration, nor (g) inconvenience or annoyance to Tenant or
injury to or interruption of Tenant's business by reason of any of the events or
occurrences referred to in the foregoing subdivisions (a) through (f), shall
impose any liability on Landlord to Tenant, other than such liability as may be
imposed upon Landlord by law or for Landlord's negligence or willful misconduct
or the negligence or willful misconduct of Landlord's agents, employees,
contractors, invitees or licensees, in the operation or maintenance of the
Building or the Building Equipment or for the breach by Landlord of any express
covenant of this Lease on Landlord's part to be performed. No representation,
guaranty or warranty is made or assurance given that the communications or
security systems, devices or procedures of the Building will be effective to
prevent injury to Tenant or any other person or damage to, or loss (by theft or
otherwise) of, any of Tenant's Property or of the property of any other person,
and Landlord reserves the right to discontinue or modify at any time such
communications or security systems or procedures without liability to Tenant.
Section 19.03 Tenant hereby indemnifies Landlord against liability in
connection with or arising from (a) any default by Tenant in the performance of
any of the terms of this Lease on Tenant's part to be performed, or (b) the use
or occupancy or manner of use or occupancy of the Premises by Tenant or any
person claiming under Tenant in violation of the provisions of this Lease, or
(c) any acts, omissions or negligence of Tenant or its contractors,
subcontractors, agents, employees, invitees or licensees, in or about the
Premises or the Real Property either prior to, during or after the expiration
of, the Term.
Section 19.04 Tenant shall pay to Landlord as Additional Rent, within
ten (10) days following rendition by Landlord to Tenant of bills or statements
therefor, sums equal to all losses, costs, liabilities, claims, damages, fines,
penalties and expenses referred to in Section 19.03.
Section 19.05 The provisions of Sections 19.01 and 19.03 are subject to
the provisions of Sections 8.06 and 8.07 and in the event of any inconsistency
the provisions of 8.06 and 8.07 shall control.
Section 19.06 Landlord agrees that in any action brought against Tenant
by Landlord, Landlord will not make a claim against Tenant for consequential
damages (as opposed to actual damages); provided that nothing contained in this
Section 19.06 shall be deemed to limit Landlord's right to (a) seek such damages
as set forth in Article 17 and elsewhere in this Lease (which shall not be
deemed consequential damages), and (b) indemnification under this Article 19,
even if it would result in Tenant paying consequential damages.
ARTICLE 20.
SURRENDER
Section 20.01 On the Expiration Date or upon the sooner termination of
this Lease or upon any reentry by Landlord upon the Premises, Tenant shall, at
its sole cost and expense, quit, surrender, vacate and deliver the Premises to
Landlord "broom clean" and in good order, condition and repair except for
ordinary wear, tear and damage by fire or other insured casualty, together with
all Improvements and Fixtures (except as otherwise provided for in this Lease).
Tenant shall remove from the Real Property all of Tenant's Property (excluding
any of Tenants Property which is affixed or attached to the Premises) and all
other personal property and personal effects of all persons claiming through or
under Tenant, and shall pay the cost of repairing all damage to the Premises and
the Real Property occasioned by such removal. Any Tenant's Property or other
personal property which shall remain in the Premises after the termination of
this Lease shall be deemed to have been abandoned and either may be retained by
Landlord as its property or may be disposed of in such manner as Landlord may
see fit. If such Tenant's Property or other personal property or any part
thereof shall be sold, Landlord may receive and retain the proceeds of such sale
as the property of Landlord. Any expense incurred by Landlord in removing or
disposing of such Tenant's Property or other personal property shall be
reimbursed to Landlord by Tenant as Additional Rent on demand.
Section 20.02 If the Expiration Date or the date of sooner termination
of this Lease shall fall on a day which is not a business day, then Tenant's
obligations under Section 20.01 shall be performed on or prior to the
immediately preceding business day.
Section 20.03 Tenant expressly waives, for itself and for any person
claiming through or under Tenant, any rights which Tenant or any such person may
have under the provisions of Section 2201 of the New York Civil Practice Law and
Rules and of any similar or successor law of same import then in force, in
connection with any holdover proceedings which Landlord may institute to enforce
the provisions of this Article.
Section 20.04 The parties recognize that the damage to Landlord
resulting from any failure of Tenant to timely surrender possession of the
Premises will be substantial and will be impossible to accurately measure.
Tenant agrees that if possession of the Premises is not delivered to Landlord on
the Expiration Date (or any sooner termination date), Tenant, at the option of
the Landlord, shall pay to Landlord, as liquidated damages and not as a penalty
and in lieu of consequential damages, a monthly rental equal to the greater of
(a) three (3) times the Fixed Rent and Additional Rent payable during the last
month of the Term or (b) the then current Fair Market Value Rent for the
Premises, and Tenant shall continue to occupy the Premises subject to all of the
other terms and conditions of this Lease insofar as the same are applicable to a
month-to-month tenancy.
Section 20.05 Tenant's obligations under this Article shall survive the
termination of this Lease.
ARTICLE 21.
ASSIGNMENT, MORTGAGING AND SUBLETTING
Section 21.01 Neither this Lease nor any part hereof nor the interest
of Tenant in any sublease or the rentals thereunder, shall, by operation of law
or otherwise, be assigned, mortgaged, pledged, encumbered or otherwise
transferred by Tenant, Tenant's
-24-
<PAGE> 27
legal representatives or successors in interest and neither the Premises, nor
any part thereof, nor any Tenant's Property shall be encumbered in any manner by
reason of any act or omission on the part of Tenant or anyone claiming under or
through Tenant, or shall be sublet or be used, occupied or utilized for desk
space or for mailing privileges by anyone other than Tenant, without the prior
consent of Landlord. which consent shall not be unreasonably withheld or
delayed. For purposes of this Article 21, (i) the issuance of interests in
Tenant, Guarantor or any subtenant (whether stock, partnership interest or
otherwise) to any 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, such person or group shall have control of Tenant,
Guarantor or such subtenant, shall be deemed an assignment of this Lease or such
sublease, as the case may be, (ii) a transfer of more than 50% in interest of
Tenant, Guarantor or any subtenant (whether stock, partnership interest or
otherwise) by any party or parties in interest whether in a single transaction
or a series of related or unrelated transactions shall be deemed an assignment
of this Lease, or such sublease, as the case may be, (iii) a take-over agreement
shall be deemed an assignment of this Lease, (iv) 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
21, and (v) a modification, amendment or extension of a sublease which alters
the terms thereof in more than a de minimis manner shall be deemed a sublease.
Any assignment, sublease, mortgage, pledge, encumbrance or transfer by Tenant in
contravention of this Article 21 shall be void. For the purposes of clause (ii)
of the preceding sentence, stock ownership shall be determined in accordance
with the principles set in Section 544 of the Internal Revenue Code of 1954, as
the same existed on August 16, 1954. If Tenant shall assign this Lease or sublet
the Premises or a portion thereof in accordance with this Article 21, any such
assignee or subtenant may use the Premises for the uses permitted hereunder.
Notwithstanding anything contained in this Section 21.01, the public offering or
trading of Tenant's stock on a nationally recognized exchange or on the NASDAQ
over-the-counter or "small-cap issues" markets shall not constitute an
assignment for purposes hereof and shall be permitted without Landlord's
consent.
Section 21.02 If this Lease be assigned, whether or not in violation of
the terms of this Lease, Landlord may collect rent from the assignee. If the
Premises or any part thereof be sublet or be used or occupied by anybody other
than Tenant, whether or not in violation of this Lease, Landlord may, after
default beyond applicable notice and cure periods, if any, collect rent from the
subtenant or occupant. In either event, Landlord may apply the net amount
collected to the rent herein reserved. The consent by Landlord to an assignment,
transfer, encumbering or subletting pursuant to any provision of this Lease
shall not in any way be considered to relieve Tenant from obtaining the express
prior consent of Landlord to any other or further assignment, transfer,
encumbering or subletting. References in this Lease to use or occupancy by
anyone other than Tenant shall not be construed as limited to subtenants and
those claiming under or through subtenants but as including also licensees and
others claiming under Tenant, immediately or remotely. The listing of any name
other than that of Tenant or any permitted assignee or subtenant on any door of
the Premises or on any directory or in any elevator in the Building, or
otherwise, shall not operate to vest in the person so named any right or
interest in this Lease or the Premises, or be deemed to constitute, or serve as
a substitute for, any consent of Landlord required under this Article, and it is
understood that any such listing shall constitute a privilege extended by
Landlord, revocable at Landlord's will by notice to Tenant. Tenant agrees to pay
to Landlord reasonable attorneys' fees and disbursements incurred by Landlord in
connection with any proposed assignment of this Lease or any proposed subletting
of the Premises or any part thereof. Neither any assignment of this Lease nor
any subletting, occupancy or use of the Premises or any part thereof by any
person other than Tenant, nor any collection of rent by Landlord from any person
other than Tenant, nor any application of any such rent as provided in this
Article shall, under any circumstances, be deemed a waiver of any of the
provisions of Section 21.01 or relieve, impair, release or discharge Tenant of
its obligations fully to perform the terms of this Lease (as same may be amended
or modified from time to time) on Tenant's part to be performed and Tenant shall
remain fully and primarily liable therefor.
Section 21.03 No assignment consented to by Landlord hereunder shall be
valid unless, within ten (10) days after the execution thereof, Tenant shall
deliver to Landlord a duplicate original instrument of assignment and assumption
in form and substance reasonably satisfactory to Landlord, duly executed by
Tenant and by the assignee, in which such assignee shall assume performance of
all terms of this Lease on Tenant's part to be performed.
Section 21.04 (a) Notwithstanding anything contained in Sections 21.01
and 21.02 to the contrary, in the event that at any time Tenant desires to
sublet all or any full floor(s) of the Premises (but not the entire Premises)
for a term which shall expire during the last year of the Term (as such Term may
be extended pursuant to Article 42 hereof) or to assign its interest in this
Lease, Tenant shall give Landlord written notice thereof, which notice shall be
accompanied by (i) with respect to an assignment of this Lease, the date Tenant
desires the assignment to be effective, (ii) with respect to a sublet of all or
any full floor(s) of the Premises (A) the date Tenant desires the subletting to
be effective and (B) a description of the portion of the Premises to be sublet,
(iii) the principal terms and conditions of the proposed assignment or
subletting, including without limitation, the proposed rent payable, the
proposed commencement and expiration dates of the terms of the proposed
subletting, or the effective date of the proposed assignment, and (iv) such
other information as Landlord may reasonably request within ten (10) days after
Landlord's receipt of Tenant's Notice. Such notice shall be deemed an offer from
Tenant to Landlord whereby Landlord may elect to (i) terminate this Lease in its
entirety, if the proposed transaction is an assignment of the Lease or a
subletting of all or seven of eight floors of the Premises for the remainder of
the Term, or (ii) terminate this Lease as to the full floor(s) proposed to be
sublet, if the proposed transaction is a subletting of more than three (3)
floors in the aggregate. Such right shall be exercised by written notice from
Landlord to Tenant within thirty (30) days after receipt of Tenant's notice. If
Landlord shall send such notice, Tenant shall vacate and surrender the Premises
or any full floor(s) proposed to be sublet, on or before the date specified in
said notice (the "termination date") which shall be not earlier than one (1) day
before the effective date of the proposed assignment or subletting and not later
than sixty (60) days from the date of Landlord's termination notice to Tenant.
The Term shall end on such termination date as if such date was the Expiration
Date. If a part of the Premises is surrendered to Landlord pursuant hereto,
Landlord and Tenant shall execute and deliver a supplementary agreement
modifying this Lease, as of the day following such surrender, by eliminating
such surrendered space from the Premises, equitably reducing the rent allocable
to the remaining Premises and appropriately modifying the other terms of this
Lease to reflect the elimination of such surrendered space from the Premises. If
Landlord shall terminate this Lease pursuant to this Section 21.04(a), Landlord
shall be free to lease the Premises (or any part thereof) to any party
whatsoever without liability to Tenant, provided, however, with respect to a
partial termination of this Lease, Landlord shall not lease the surrendered
portion of the Premises to a direct competitor of Tenant . If Landlord shall not
elect to terminate this Lease pursuant to this Section 21.04(a), the other
provisions of this Article 21 shall apply with respect to any proposed assignee
or subtenant.
(b) In the event that (x) within thirty (30) days after Tenant shall
have requested Landlord's consent to any such subletting or assignment and shall
have submitted to Landlord all items required by Section 21.04(a), Landlord does
not exercise its
-25-
<PAGE> 28
option to terminate this Lease, in whole or in part, as referred to in Section
21.04(a), or (y) Tenant shall have requested Landlord's consent to a subletting
of a portion of the Premises (including, a portion of any floor) for a term
which expires earlier than one (1) year prior to the expiration of the Term,
Landlord's consent to such subletting or assignment, as the case may be, shall
not be unreasonably withheld, provided that all of the following conditions have
been satisfied:
(i) In the reasonable judgment of Landlord the proposed
subtenant or assignee, as the case may be, is of a character and
financial worth such as is in keeping with the standards of Landlord in
those respects for the Building, and the nature of the proposed
subtenant's or assignee's business and its reputation is in keeping
with the character of the Building and its tenancies;
(ii) The purposes for which the proposed subtenant or assignee
intends to use the Premises or the applicable portion thereof are
permitted by and not prohibited by this Lease;
(iii) Tenant shall not have advertised in any way the
availability of all or part of the Premises without Landlord's consent,
which shall not be unreasonably withheld, and no advertisement shall
state the proposed rental at a rental rate less than the greater of (x)
the rent then payable hereunder for such space or (y) the rent at which
Landlord is then offering to lease comparable space in the Building;
(iv) The proposed occupancy shall not impose an extra burden
upon the Building Equipment or building services;
(v) There shall not be more than one (1) subtenant (including
Landlord or its designee) per floor in the Premises;
(vi) The proposed sublease shall prohibit any assignment or
subletting, except as otherwise provided in Sections 21.08, 21.09 and
21.10 of this Lease;
(vii) The proposed assignment shall prohibit any assignment or
subletting, except as otherwise provided in this Lease.
(viii)The proposed sublease shall be expressly subject and
subordinate to all of the provisions of this Lease;
(ix) Tenant shall not be in default in the performance of any
of its obligations under this Lease beyond applicable notice and cure
periods either at the time Landlord's consent to such subletting or
assignment is requested or at the commencement of the term of any
proposed sublease or upon the effective date of any such assignment;
(x) Tenant shall reimburse Landlord for any reasonable
third-party costs (including, without limitation, reasonable attorney's
fees) that may be incurred by Landlord in connection with said sublease
or assignment, including the costs of making investigations as to the
acceptability of a proposed subtenant or assignee;
(xi) The proposed subtenant or assignee shall not then be a
tenant of any space in the Building or a related corporation of any
other tenant or a party who dealt with Landlord or Landlord's agent
(either directly or through a broker) for the rental of any space in
the Building within the six (6) months immediately preceding Tenant's
request for Landlord's consent, provided that there is comparable space
available for lease in the Building by Landlord;
(xii) The proposed subtenant or assignee shall not be
entitled, directly or indirectly, to diplomatic or sovereign immunity
and shall be subject to the service of process in, and the jurisdiction
of the courts of, New York State; and
(xiii)The proposed subtenant or assignee shall not be a person
then negotiating with Landlord or Landlord's agent (either directly or
through a broker) for the rental of any space in the Building, provided
that there is comparable space available for lease in the Building by
Landlord;
(c) Subject to Article 37, Tenant shall have the right to submit a
dispute to arbitration pursuant to Article 27 as to whether Landlord shall have
reasonably withheld its consent to such proposed assignment or subletting,
except that such arbitration shall be held in accordance with the then
prevailing rules for Expedited Arbitration of the American Arbitration
Association.
(d) With respect to each and every sublease or subletting or assignment
authorized by the provisions of this Section, it is further agreed and
understood between Landlord and Tenant as follows:
(i) No subletting shall be for a term ending later than one
(1) day prior to the Expiration Date and that part, if any, of the
proposed term of any sublease or any renewal or extension thereof which
shall extend beyond a date one (1) day prior to the Expiration Date or
the sooner termination of the Term, is hereby deemed to be a nullity;
and
(ii) There shall be delivered to Landlord, within ten (10)
days after the commencement of the term of the proposed sublease,
notice of such commencement, or in the case of an assignment, notice of
the effectiveness of such assignment.
(e) In the event Landlord fails to exercise its rights under Section
21.04(a) above, or consents to any assignment or subletting pursuant to this
Article 21, and Tenant fails to execute and deliver an assignment or sublease,
as approved by Landlord within one hundred eighty (180) days after receipt of
such approval, then Tenant shall again comply with all of the requirements of
this Article 21 before assigning this Lease or subletting all or any part of the
Premises.
Section 21.05 Notwithstanding anything to the contrary herein, if
Landlord shall consent to any assignment or subletting and Tenant shall either
(a) receive any consideration from its assignee in connection with the
assignment of this Lease, Tenant shall
-26-
<PAGE> 29
pay over to Landlord so much, if any, of such consideration (including, without
limitation, sums designated by the assignee as paid for the purchase of Tenant's
Property in the Premises), less the then net unamortized or undepreciated costs
of Tenant's Work and Improvements (to the extent not performed or provided by
Landlord at Landlord's expense, or paid by Landlord) as determined on the basis
of the amortization schedule therefor utilized by Tenant in Tenant's federal
income tax returns, and the brokerage commissions and attorneys' fees and
disbursements (including, without limitation, actual up front, out of pocket
payments for improvement allowances, free rent or other concessions paid at or
prior to the effective date of such assignment), reasonably incurred by Tenant
for such assignment or (b) sublet the Premises or any portion thereof to anyone
for rents, additional charges or other consideration (including, without
limitation, sums designated by the subtenant as paid for the purchase or rental
of Tenant's Property in the Premises), less the then net unamortized or
undepreciated cost of Tenant's Work and Improvements (to the extent not
performed or provided by Landlord at Landlord's expense, or paid by Landlord)
determined on the basis of the amortization schedule therefor utilized by Tenant
in Tenant's federal income tax returns, which for any period shall exceed the
rents payable for the subleased space under this Lease for the same period,
Tenant shall pay Landlord, as Additional Rent, such excess less brokerage
commissions and attorneys' fees and disbursements (including, without
limitation, actual up front, out of pocket payments for improvement allowance or
other concessions paid at or prior to the effective date of such sublease),
reasonably incurred by Tenant for such subletting. All sums payable to Landlord
pursuant to Section 21.05(a) shall be paid on the effective date of such
assignment and all sums payable to Landlord pursuant to Section 21.05(b) shall
be paid on the date or dates such sums are paid to Tenant by the subtenant.
Notwithstanding anything to the contrary set forth in this Section 21.05, to the
extent Landlord shall not have any termination rights with respect to any
subletting under Section 21.04(a) above, Tenant shall only be required to pay to
Landlord fifty (50%) percent of the amount Tenant would be required to pay to
Landlord pursuant to this Section 21.05(b) with respect to such subletting.
Section 21.06 If Landlord shall recover or come into possession of the
Premises before the date herein fixed for the termination of this Lease,
Landlord shall have the right, at its option, to take over any and all subleases
or subletting of the Premises or any part thereof made by Tenant and to succeed
to all the rights of said subleases and subletting or such of them as it may
elect to take over. Tenant hereby expressly assigns and transfers to Landlord
such of the subleases and sublettings as Landlord may elect to take over at the
time of such recovery of possession, such assignment and transfer not to be
effective until the termination of this Lease or re-entry by Landlord hereunder
or if Landlord shall otherwise succeed to Tenant's estate in the Premises, at
which time Tenant shall upon request of Landlord, execute, acknowledge and
deliver to Landlord such further assignments and transfers as may be necessary
to vest in Landlord the then existing subleases and sublettings. Every
subletting hereunder is subject to the condition and by its acceptance of and
entry into a sublease, each subtenant thereunder shall be deemed conclusively to
have thereby agreed from and after the termination of this Lease or re-entry by
Landlord hereunder of if Landlord shall otherwise succeed to Tenant's estate in
the Premises, that such subtenant shall waive any right to surrender possession
or to terminate the sublease and, at Landlord's election, such subtenant shall
be bound to Landlord for the balance of the term of such sublease and shall
attorn to and recognize Landlord, as its landlord, under all of the then
executory terms of such sublease, except that Landlord shall not (i) be liable
for any previous act, omission or negligence of Tenant under such sublease, (ii)
be subject to any counterclaim, defense or offset not expressly provided for in
such sublease, which theretofore accrued to such subtenant against Tenant, (iii)
be bound by any previous modification or amendment of such sublease or by any
previous prepayment of more than one month's rent and additional rent which
shall be payable as provided in the sublease, unless such modification or
prepayment shall have been approved in writing by Landlord, (iv) be obligated to
repair the subleased space or the Building or any part thereof, in the event of
total or substantial total damage beyond such repair as can reasonably be
accomplished from the net proceeds of insurance actually made available to
Landlord, (v) be obligated to repair the subleased space or the Building or any
part thereof, in the event of partial condemnation beyond such repair as can
reasonably be accomplished from the net proceeds of any award actually made
available to Landlord as consequential damages allocable to the part of the
subleased space or the Building not taken or (vi) be obligated to perform any
work in the subleased space or the Building or to prepare them for occupancy
beyond Landlord's obligations under this Lease, and the subtenant shall execute
and deliver to Landlord any instruments Landlord may reasonably request to
confirm such attornment. Each subtenant or licensee of Tenant shall be deemed
automatically upon and as a condition of occupying or using the Premises or any
part thereof, to have given a waiver of the type described in and to the extent
and upon the conditions set forth in Section 8.07.
Section 21.07 In the event that, at any time after Tenant named herein
may have assigned its interest in this Lease, this Lease shall be disaffirmed or
rejected in any proceeding of the types described in subdivisions (a) or (b) of
Section 16.01 or in any similar proceeding, or in the event of termination of
this Lease by reason of any such proceeding or by reason of lapse of time
following notice of termination given pursuant to Article 16 based upon any of
the conditions of limitation set forth in said subdivisions, Tenant named
herein, upon request of Landlord given within thirty (30) days after such
disaffirmation or rejection or termination (and actual notice thereof to
Landlord in the event of a disaffirmance or rejection or in the event of
termination other than by an act of Landlord), shall (a) pay to Landlord all
Fixed Rent, Additional Rent and other charges due and owing by the assignee to
Landlord under this Lease to and including the date of such disaffirmance,
rejection or termination, and (b) as "tenant", enter into a new lease with
Landlord of the Premises for a term commencing on the effective date of such
disaffirmance, rejection or termination and ending on the Expiration Date,
unless sooner terminated as in such lease provided, at the same Fixed Rent and
upon the then executory terms, covenants and conditions as are contained in this
Lease, except that (i) the rights of Tenant named herein under the new lease
shall be subject to the possessory rights of the assignee under this lease and
the possessory rights of any persons claiming through or under such assignee or
by virtue of any statute or of any order of any court, (ii) such new lease shall
require all defaults existing under this Lease to be cured by Tenant named
herein with due diligence, and (iii) such new lease shall require Tenant named
herein to pay all Additional Rent which, had this Lease not been so disaffirmed,
rejected or terminated, would have become due under the provisions of Article 7
after the date of such disaffirmance, rejection or termination with respect to
any period prior thereto. In the event Tenant named herein shall default for a
period of ten (10) days after Landlord's request in its obligations to enter
into said new lease then, in addition to all other rights and remedies by reason
of such default, either at law or in equity, Landlord shall have the same rights
and remedies against Tenant named herein as if it had entered into such new
lease and such new lease had thereafter been terminated as at the commencement
date thereof by reason of the default thereunder of Tenant named herein.
Section 21.08 Notwithstanding the provisions of Section 21.01 and
Section 21.04, Landlord's consent will not be required for an assignment of this
Lease in connection with transactions with an entity into or with which Tenant
is merged or consolidated so long as: (i) such entity shall agree with Landlord
to be bound by all of the obligations of Tenant hereunder; (ii) such assignment
shall not relieve Tenant of any of the obligations hereunder; (iii) such
transfer was made for a legitimate independent business purpose and not for the
purpose of transferring this Lease; and (iv) the successor to Tenant has a net
worth computed in accordance with generally accepted accounting principles of at
least equal to the greater of (A) the net worth of Tenant immediately prior to
such merger or consolidation, and (B) the net worth of the original Tenant on
the date of this Lease.
-27-
<PAGE> 30
Section 21.09 Notwithstanding the provisions of Section 21.01, in the
event that Tenant sells its business to another entity by way of sale of all of
the stock or other ownership interests therein or assets thereof, no consent of
Landlord will be required (and the provisions of Sections 21.04 and 21.05 shall
not apply) to an assignment of this Lease to said acquiring entity, provided
that (and it shall be a condition of the validity of any such assignment): (i)
such entity shall agree, pursuant to a written assumption agreement, to be bound
by all of the obligations of Tenant hereunder, including the requirements of
Article 5; (ii) such assignment shall not relieve Tenant of any of its
obligations hereunder; (iii) such transfer was made for a legitimate independent
business purpose and not for the purpose of transferring this Lease; (iv) Tenant
shall furnish Landlord with information regarding the (A) financial condition of
the acquiring entity, (B) nature of the acquiring entity's business, and (C)
identity of the owners of the acquiring entity (unless the acquiring entity is
publicly traded); (vi) no lawsuits are then pending or threatened between
Landlord or any Affiliate of Landlord and the proposed assignee (or any
Affiliate thereof); and (vii) the proposed assignee is not entitled, directly or
indirectly, to diplomatic or sovereign immunity, regardless of whether the
proposed assignee agrees to waive such diplomatic or sovereign immunity.
Section 21.10 Notwithstanding the provisions of Section 21.01,
Landlord's consent shall not be required for an assignment of this Lease or a
sublease of the Premises (in whole or in part) to an Affiliate of the Tenant
(but only for such period of time as such Person remains an Affiliate of the
Tenant), it being agreed that the subsequent transfer of Control, or any other
transaction(s) having the overall effect that such Person ceases to be such an
Affiliate of the Tenant, shall be treated as if such transfer or transactions(s)
were, for all purposes, an assignment of this Lease to a third party not an
Affiliate of the Tenant governed by the provisions of this Article 21.
Section 21.11 For the purposes of this Article 21, the following terms
shall have the meanings indicated:
(a) "Affiliate" shall mean, with respect to any Person, any other
Person that, directly or indirectly (through one or more intermediaries),
Controls, is Controlled by, or is under common Control with, such first Person.
(b) "Control" shall mean, (i) (a) the ownership, directly or
indirectly, of more than 50% of the voting stock of a corporation, or (b) in the
case of any Person that is not a corporation, the ownership, directly or
indirectly, of more than 50% of the beneficial ownership interests in such
Person, or (ii) in the case of any such Person, the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person.
ARTICLE 22.
SUBORDINATION AND ATTORNMENT
Section 22.01 Provided that Landlord obtains from any future Superior
Mortgagee and/or Superior Lessor an agreement to the effect that, so long as no
event of default shall at the time have occurred and be continuing hereunder
after applicable notice and cure periods, (a) Tenant and its permitted
subtenants and assigns shall not be made a party to any proceeding to foreclose
the Superior Mortgage or to terminate the Superior Lease; (b) that Tenant's
possession of the Premises under the terms of this Lease, shall not be
terminated or disturbed as a result of the foreclosure of any Superior Mortgage
or termination of any Superior Lease; and (c) that such Superior Mortgagee or
Superior Lessor, as the case may be, will recognize Tenant as the direct tenant
of such Superior Mortgagee or Superior Lessor on all of the terms and conditions
of this Lease subject to the provisions hereinafter set forth; together with
such other terms as are customarily contained in the Superior Mortgagee's or
Superior Lessee's form of subordination, non-disturbance and attornment
agreement (the "Subordination Agreement"), then this Lease and all rights of
Tenant hereunder are and shall be subject and subordinate in all respects to (i)
all present and future ground leases, operating leases, superior leases,
overriding leases and underlying leases and grants of term of the Land and the
Building or any portion thereof (collectively, including the applicable items
set forth in subdivision (iv) of this Section 22.01, the "Superior Lease"), (ii)
all mortgages and building loan agreements, including leasehold mortgages and
spreader and consolidation agreements, which may now or hereafter affect the
Land, the Building or the Superior Lease (collectively, including the applicable
items set forth in subdivisions (iii) and (iv) of this Section 22.01, the
"Superior Mortgage") whether or not the Superior Mortgage shall also cover other
lands or buildings or leases except that a mortgage on the Land only shall not
be a Superior Mortgage so long as there is in effect a Superior Lease which is
not subordinate to such mortgage, (iii) each advance made or to be made under
the Superior Mortgage, and (iv) all renewals. modifications, replacements,
supplements, substitutions and extensions of the Superior Lease and the Superior
Mortgage and all spreader and consolidations of the Superior Mortgage. The
provisions of this Section shall be self-operative and no further instrument of
subordination shall be required, provided Tenant receives the Subordination
Agreement. In confirmation of such subordination, Tenant shall promptly execute
and deliver, at its own cost and expense, any instrument, in recordable form if
requested, that Landlord, the Superior Lessor or the Superior Mortgagee may
reasonably request to evidence such subordination; and if Tenant fails to
execute, acknowledge or deliver any such instrument within fifteen (15) days
after the request therefor, Tenant shall be in default of this Lease. The
Superior Mortgagee may elect that this Lease shall have priority over its
Superior Mortgage and, upon notification Superior Mortgagee to Tenant, this
Lease shall be deemed to have priority over such Superior Mortgage, whether this
Lease is dated prior to or subsequent to the date of such Superior Mortgage. If,
in connection with the obtaining, continuing or renewing of financing for which
the Building, Land or the interest of the lessee under the Superior Lease
represents collateral, in whole or in part, a savings or commercial bank or
trust company, insurance company, savings and loan association, a welfare,
pension or retirement fund or system or any other lender shall be or be willing
to become the Superior Mortgagee and shall request reasonable modifications of
this Lease as a condition of such financing (whether in the Subordination
Agreement or otherwise), Tenant will not unreasonably withhold or delay its
consent thereto, provided that such modifications do not increase the
obligations of Tenant hereunder or adversely affect Tenant's leasehold interest
or otherwise diminish the rights of Tenant hereunder in any material respect.
Landlord represents that, as of the date of this Lease, (A) there are no
Superior Mortgages encumbering the Premises except the Superior Mortgage held by
Whitehall Street Real Estate Limited Partnership XI, and (B) there are no
Superior Leases encumbering the Premises.
Section 22.02 Landlord hereby notifies Tenant that this Lease may not
be canceled or surrendered, or modified or amended so as to reduce the rent,
shorten the Term or adversely effect in any other respect to any material extent
the rights of Landlord hereunder and that Landlord may not accept prepayments of
any installments of rent except for prepayments in the nature of security for
the performance of Tenant's obligations hereunder, without the consent of the
Superior Lessor and the Superior Mortgagee
-28-
<PAGE> 31
in each instance, except that said consent shall not be required for the
institution or prosecution of any action or proceedings against Tenant by reason
of a default on the part of Tenant under the terms of this Lease.
Section 22.03 If, at any time prior to the termination of this Lease,
the Superior Lessor or the Superior Mortgagee or any person, of the Superior
Lessor's or Superior Mortgagee's or such person's successors or assigns (the
Superior Lessor, Superior Mortgagee and any such person or successor or assign
being herein collectively referred to as "Successor Landlord") shall succeed to
the rights of Landlord under this Lease through possession or foreclosure or
delivery of a new lease or deed or otherwise, Tenant agrees, at the election and
upon request of any such Successor Landlord, to fully and completely attorn,
from time to time, to and recognize any such Successor Landlord, as Tenant's
landlord under this Lease upon the then executory terms of this Lease; provided
such Successor Landlord shall agree in writing to accept Tenant's attornment.
The foregoing provision of this Section shall inure to the benefit of any such
Successor Landlord, shall apply notwithstanding that, as a matter of law, this
Lease may terminate upon the termination of the Superior Lease, shall be
self-operative upon any such demand, and no further instrument shall be required
to give effect to said provisions. Tenant, however, upon demand of any such
Successor Landlord agrees to execute, from time to time, instruments to evidence
and confirm the foregoing provisions of this Section reasonably satisfactory to
any such Successor Landlord, acknowledging such attornment and setting forth the
terms and conditions of its tenancy. Upon such attornment this Lease shall
continue in full force and effect as a direct lease between such Successor
Landlord and Tenant upon all of the then executory terms of this Lease except
that such Successor Landlord shall not be (a) liable for any previous act or
omission or negligence of Landlord under this Lease; (b) subject to any
counterclaim, defense or offset, not expressly provided for in this Lease and
asserted with reasonable promptness, which theretofore shall have accrued to
Tenant against Landlord; (c) obligated to perform any work; (d) bound by any
previous modification or amendment of this Lease or by any previous prepayment
of more than one month's rent, unless such modification or prepayment shall have
been approved in writing by the Superior Lessor or the Superior Mortgagee
through or by reason of which the Successor Landlord shall have succeeded to the
rights of Landlord under this Lease; (e) obligated to repair the Premises or the
Building or any part thereof, in the event of total or substantial damage beyond
such repair as can reasonably be accomplished from the net proceeds of insurance
actually made available to Successor Landlord; or (f) obligated to repair the
Premises or the Building or any part thereof, in the event of partial
condemnation beyond such repair as can reasonably be accomplished from the net
proceeds of any award actually made available to Successor Landlord, as
consequential damages allocable to the part of the Premises or the Building not
taken. Nothing contained in this Section shall be construed to impair any right
otherwise exercisable by any such owner, holder or lessee.
Section 22.04 If any act or omission by Landlord would give Tenant the
right, immediately or after lapse of time, to cancel or terminate this Lease or
to claim a partial or total eviction, Tenant will not exercise any such right
until (a) it has given written notice of such act or omission to each Superior
Mortgagee and each Superior Lessor, whose name and address shall have previously
been furnished to Tenant, by delivering notice of such act or omission addressed
to such party at its last address so furnished and (b) a reasonable period for
remedying such act or omission shall have elapsed following such giving of
notice and following the time when such Superior Mortgagee or Superior Lessor
shall have become entitled under such Superior Mortgage or Superior Lease, as
the case may be, to remedy the same (which shall in no event be less than the
period to which Landlord would be entitled under this Lease to effect such
remedy) provided such Superior Mortgagee or Superior Lessor shall, with
reasonable diligence, give Tenant notice of intention to, and commence and
continue to, remedy such act or omission or to cause the same to be remedied.
Section 22.05 (a) This Lease and Tenant's rights hereunder are, and
shall at all times be, superior to any condominium declaration, by-laws and
other instruments (collectively, the "Declaration") that may be recorded in
order to subject the Building to a condominium form of ownership pursuant to
Article 9-B of the New York Real Property law or any successor statute. Landlord
agrees that neither the Declaration nor any provision thereof shall be effective
to limit or otherwise adversely affect Tenant's rights under this Lease, or to
increase any of Tenant's obligations under this Lease. Notwithstanding the
foregoing, Landlord may amend the Declaration without Tenant's consent, provided
that such Declaration (as amended) (a) remains subject and subordinate to this
Lease and (b) does not otherwise adversely affect Tenant's rights or increase
Tenant's obligations under this Lease.
(b) In the event the Building is converted to a
condominium form of ownership, Landlord hereby agrees and covenants that, at all
times during the Term, there shall be a single holder of fee title to the unit
of the condominium of which the Premises form a part.
ARTICLE 23.
ACCESS; CHANGE IN FACILITIES
Section 23.01 (a) Nothing herein contained shall be construed as a
letting by Landlord to Tenant of, (i) the faces of exterior walls, (ii) the
space below the underside of the Premises, (iii) the land below the sub-base of
or air rights above, the Premises or the Building, (iv) the roof, or (v) the
common areas and facilities of the Building. All parts (except surfaces facing
the interior of the Premises) of all walls, windows and doors bounding the
Premises, all balconies, terraces, stairs, landings and roofs adjacent to the
Premises, all space in or adjacent to the Premises used for shafts, stacks,
stairways, conduits, pipes, ductwork, air conditioning rooms, telephone rooms,
fan rooms, heating, ventilating, air conditioning, plumbing, electrical and
other mechanical facilities, service closets and other Building Equipment, and
the use thereof, as well as access thereto through the Premises for the purpose
of operation, decoration, cleaning, maintenance, safety, security, alteration
and repair, are hereby reserved to Landlord. Notwithstanding the foregoing,
subject to the provisions of this Lease, Tenant shall have the right in common
with other tenants of reasonable access to, and use of, the conduits, shafts,
telephone rooms, stacks, stairways, pipes, ductwork, plumbing, electrical and
other mechanical facilities, provided such access and use does not interfere
with the proper functioning of the Building System, the operations of the
Building and/or the use and occupancy by other tenants in the Building of their
respective premises. Landlord reserves the right, at any time, without incurring
any liability to Tenant therefor, to make such changes in or to the Building
Equipment, as well as in the entrances, doors, corridors, elevators, stairs,
landings, toilets and other public parts of the Building, as it may deem
necessary or desirable, provided any such change (a) does not unreasonably
deprive Tenant of access to the Premises and (b) does not unreasonably interfere
with the use of the Premises or the services furnished to the Premises, for an
unreasonable length of time, and (c) does not result in a breach of any covenant
contained herein on the part of Landlord to observe and perform.
(b) Notwithstanding anything contained herein, Tenant shall
have the right to approve (which approval
-29-
<PAGE> 32
shall not be unreasonably withheld, conditioned or delayed) any Major Alteration
(as hereinafter defined) to the lobby in the Building. For purposes of the
foregoing sentence, the term "Major Alteration" shall mean any alteration within
the commercial portion of the lobby that (i) materially affects the appearance
of the lobby and (ii) costs in excess of $250,000 in the aggregate. In the event
Tenant shall fail to respond to Landlord's written notice requesting Tenant's
approval of any Major Alteration within seven (7) business days after receipt of
Landlord's notice, then Tenant shall be deemed to have approved such Major
Alteration. Nothing contained in this Section 23.01(b) shall be applicable to
any Superior Mortgagee or anyone else who acquires title from a Superior
Mortgagee or who acquires title after foreclosure of any Superior Mortgage.
Section 23.02 Tenant shall permit Landlord to install, use and maintain
pipes, ducts, wires and conduits within or through the Premises, or through the
walls, columns and ceilings therein, provided that the installation work is
performed at such times and by such methods as will not unreasonably interfere
with Tenant's use and occupancy of the Premises, or damage the appearance
thereof, or adversely affect the layout of the Premises. Landlord shall endeavor
to install any such pipes, ducts, wires and conduits in the walls, columns or
ceilings of the Building, provided such installation in the walls, columns or
ceilings is structurally possible and consistent with good engineering
practices. Landlord, at its expense, shall promptly repair any damage caused by
any such installations, use or maintenance. Where access doors are required in,
or adjacent to the Premises for mechanical trades, Landlord shall furnish and
install such access doors and confine their location wherever practical to
closets, coatrooms, toilet rooms, corridors and kitchen or pantry rooms.
Landlord and Tenant shall cooperate with each other in the location of
Landlord's and Tenant's facilities requiring such access doors.
Section 23.03 Landlord or Landlord's agents or designees shall have the
right to enter the Premises at all reasonable times, whether or not during
normal business hours but upon reasonable advance notice to Tenant, except in an
emergency in which case no notice shall be required, for any of the purposes
specified in this Article and (a) to examine the Premises or for the purpose of
performing any obligation of Landlord or exercising any right reserved to
Landlord in this Lease; (b) to exhibit the Premises to prospective purchasers
and current or prospective mortgagees or lessors; (c) during the last twelve
(12) months of the Term, to exhibit the Premises to prospective tenants; (d) to
make or cause to be made such repairs or improvements, or to perform such
maintenance, including the maintenance of Building Equipment, (i) as Landlord
may deem necessary or desirable or (ii) as may be required pursuant to any Legal
Requirements; (e) to take into and store upon the Premises all materials that
may be required in connection with any such repairs, improvements or
maintenance; and (f) to alter, renovate and decorate the Premises after the
expiration or earlier termination of this Lease. Landlord agrees however, that
all such repairs, entries, improvements and maintenance shall be made with a
minimum of inconvenience to Tenant and Landlord will diligently proceed
therewith to completion but without obligation to employ overtime labor and
subject to Force Majeure. If Tenant, its agents or employees shall not be
present or shall not permit any entry into the Premises at any time when such
entry shall be permissible, Landlord may, in the event of an emergency, use a
master key or forcibly enter the Premises. The Superior Lessor, the Superior
Mortgagee and the Fee Mortgagee shall each have the right to enter the Premises
at all times to examine the Premises or for the purpose of exercising any right
reserved to Landlord under this Section.
Section 23.04 Landlord or Landlord's agents shall have the right to
permit access to the Premises at any time, whether or not Tenant shall be
present, for any lawful purpose, by any representative of fire, police,
building, sanitation or other department or instrumentality of the borough,
city, state or federal governments. Nothing contained in, nor any action taken
by Landlord under, this Section shall be deemed to constitute recognition by
Landlord that any person other than Tenant has any right or interest in this
Lease or the Premises.
Section 23.05 Landlord reserves the right to light, from time to time,
all or any portion of the Premises at night for display purposes but shall
reimburse or credit Tenant, at Landlord's option, for any expenses for
electricity incurred by Tenant for such display lighting after 9:00 P.M.
Section 23.06 The exercise of any right reserved to Landlord in this
Article in accordance herewith, shall be without liability of Landlord to Tenant
except with respect to the gross negligence or willful misconduct of Landlord,
its agents, employees and contractors in connection therewith.
ARTICLE 24.
INABILITY TO PERFORM
Section 24.01 Except as set forth in Articles 3 and 4, this Lease and
the obligations of Tenant to pay rent and perform all of the terms of this Lease
on the part of Tenant to be performed shall in no way be affected because
Landlord is unable or delayed in fulfilling any of its obligations under this
Lease or by reason of Force Majeure. Landlord shall in each instance exercise
reasonable diligence to effect performance when and as soon as possible.
However, Landlord shall be under no obligation to employ overtime labor, except
as otherwise set forth in this Lease.
ARTICLE 25.
LEGAL PROCEEDINGS; WAIVER OF COUNTERCLAIMS AND JURY TRIAL
Section 25.01 In the event Landlord commences any summary proceeding or
action for non-payment of rent, Tenant covenants and agrees that it will not
interpose, by consolidation of actions or otherwise, any counterclaim or other
claim seeking affirmative relief of whatsoever nature or description in any such
proceeding other than mandatory counterclaims. To the extent permitted by
applicable law, Landlord and Tenant hereby waive trial by jury in any action or
proceeding, and with respect to any claim asserted in such action or proceeding,
brought by either of the parties 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 Premises, any claim of
injury or damage, or any emergency or other statutory remedy with respect
thereto. Tenant hereby represents to Landlord that it is not entitled, directly
or indirectly, to diplomatic or sovereign immunity and Tenant agrees that in all
disputes arising, directly
-30-
<PAGE> 33
or indirectly out of this Lease, Tenant shall be subject to service of process
in, and the jurisdiction of the courts of, the State of New York. The provisions
of this Article shall survive the Expiration Date or sooner termination of this
Lease.
ARTICLE 26.
NO OTHER WAIVER
Section 26.01 The failure of Landlord or Tenant to insist in any
instance upon the strict performance of any term of this Lease, or to exercise
any right herein contained, shall not be construed as a waiver or relinquishment
for the future of the performance of such obligation of this Lease or of the
right to exercise any such right, but the same shall continue and remain in full
force and effect with respect to any subsequent breach, act or omission.
Section 26.02 The following specific provisions of this Section shall
not limit the generality of the provisions of this Article:
(a) No agreement to accept a surrender of all or any part of the
Premises or this Lease shall be valid unless in writing and signed by Landlord.
No delivery of keys shall operate as a termination of this Lease or a surrender
of the Premises or this Lease. Without limiting the generality of the preceding
sentence, if, subject to the provisions of Article 21, Tenant shall at any time
request Landlord to sublet the Premises for Tenant's account, Landlord or
Landlord's agent is authorized to receive said keys for such purpose 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.
(b) The receipt or acceptance by Landlord of rent with knowledge of
breach by Tenant of any term 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 rent shall be deemed to be other than a payment on account, nor
shall any endorsement or statement on any check or any accompanying letter be
deemed to effect or evidence 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 right of Landlord.
(d) Neither any option granted to Tenant in this Lease or in any
collateral instrument to renew or extend the Term, nor the exercise of any such
option by Tenant, shall prevent Landlord from exercising any option or right
granted or reserved to Landlord in this Lease or in any collateral instrument or
that Landlord may otherwise have, to terminate this Lease or any renewal or
extended term. Any termination of this Lease shall serve to terminate any such
renewal or extension whether or not Tenant shall have exercised any option to
renew or extend the Term. Any such option or right on the part of Landlord to
terminate this Lease shall continue during any extension or renewal of the Term.
No option granted to Tenant to renew or extend the Term shall be deemed to give
Tenant any further option to renew or extend the Term.
(e) No waiver by Landlord in favor of any other tenant or occupant of
the Building shall constitute a waiver in favor of the Tenant named herein.
ARTICLE 27.
ARBITRATION
Section 27.01 The parties hereto shall not be deemed to have agreed to
determination of any dispute arising out of this Lease by arbitration unless
determination is such manner shall have been specifically provided for in this
Lease.
Section 27.02 The party desiring arbitration shall give notice to that
effect to the other party and shall in such notice appoint a person as
arbitrator on its behalf. Within ten (10) days, the other party by notice to the
original party shall appoint a second person as arbitrator on its behalf. The
arbitrators thus appointed shall appoint a third person, and such three
arbitrators shall as promptly as possible determine such matter, provided,
however, that:
(a) if the second arbitrator shall not have been appointed as
aforesaid, the first arbitrator shall proceed to determine such matter; and
(b) if the two arbitrators appointed by the parties shall be unable to
agree, within ten (10) days after the appointment of the second arbitrator, upon
the appointment of a third arbitrator, they shall give written notice to the
parties of such failure to agree, and if the parties fail to agree upon the
selection of such third arbitrator within ten (10) days after the arbitrators
appointed by the parties give notice as aforesaid, then within five (5) days
thereafter either of the parties upon notice to the other party may request such
appointment by the American Arbitration Association (or any organization
successor thereto), or in its absence, refusal, failure or inability to act, may
apply for a court appointment of such arbitrator.
Section 27.03 Each arbitrator shall be a fit and impartial person who
shall have had at least ten (10) years' experience in the County of New York in
a calling connected with the matter of the dispute.
Section 27.04 The arbitration shall be conducted, to the extent
consistent with this Article, in accordance with the then prevailing rules of
the American Arbitration Association (or any other organization successor
thereto.) The decision and award shall be rendered by the arbitrators, upon the
concurrence of at least two of their number, within thirty (30) days after the
appointment of the third arbitrator, or, in the case of a determination by a
single arbitrator pursuant to subdivision (a) of Section 27.02 within thirty
(30) days after the expiration of the period during which a second arbitrator
may be appointed. Such decision and award shall be in writing and shall be final
and conclusive on the parties, and counterpart copies thereof shall be delivered
to each of the parties. In
-31-
<PAGE> 34
rendering such decision and award, the arbitrators shall not add to, subtract
from or otherwise modify the provisions of this Lease. Judgment may be had on
the decision and award of the arbitrator(s) so rendered in any court of
competent jurisdiction.
Section 27.05 Each party shall pay the fees and expenses of the one of
the two original arbitrators appointed by or for such party and the fees and
expenses of the third arbitrator and all other expenses of the arbitration
(other than the fees and disbursements of attorneys or witnesses for each party)
shall be borne by the parties equally.
Section 27.06 Notwithstanding the provisions of this Article, if any
delay in complying with any requirement of this Lease by Tenant might subject
Landlord to any fine or penalty, or to prosecution for a crime, or if it would
constitute a default by Landlord under the Superior Mortgage or the Superior
Lease, Landlord may exercise its right under Article 18 to remedy such default
and in such event the sole question to be determined by the arbitrators under
this Article shall be whether Tenant is liable under Article 18 for Landlord's
costs and expenses of curing such default.
ARTICLE 28.
QUIET ENJOYMENT
Section 28.01 If, and so long as, Tenant pays the rent and keeps,
observes and performs each and every term of this Lease on the part of Tenant to
be kept, observed and performed within applicable notice and cure periods (if
any), Tenant shall peaceably and quietly enjoy the Premises throughout the Term
without hindrance by Landlord or any person lawfully claiming through or under
Landlord, subject to the terms of this Lease and of the Superior Lease and the
Superior Mortgage. This covenant shall be construed as a covenant running with
the Land and shall not be construed as a personal covenant or obligation of
Landlord, except to the extent of Landlord's interest in this Lease and then
subject to the terms of Section 40.02.
ARTICLE 29.
RULES AND REGULATIONS
Section 29.01 Tenant and its employees, agents, invitees and licensees
shall faithfully observe and comply with, and shall not permit violation of, the
Rules and Regulations annexed hereto as Exhibit D, and such reasonable changes
therein and additions thereto as Landlord hereafter may make and communicate to
Tenant ("Rules and Regulations"). Tenant's right to dispute the reasonableness
of any changes in the Rules and Regulations and additional Rules and Regulations
shall be deemed waived unless asserted to Landlord within thirty (30) days after
Landlord shall have given Tenant notice of the adoption of any such additional
Rules and Regulations. In case of any conflict or inconsistency between the
provisions of this Lease and any Rules and Regulations, the provisions of this
Lease shall control. Landlord shall have no duty or obligation to enforce any
Rule or Regulation, or any term, covenant or condition of any lease, against any
other tenant, and Landlord's failure or refusal to enforce any Rule or
Regulation, or any term, covenant or condition of any other lease against any
other tenant shall be without liability of Landlord to Tenant. Landlord shall
not discriminate against Tenant in the enforcement of the Rules and Regulations.
Section 29.02 Notwithstanding anything to the contrary in any of the
Rules and Regulations, whenever Landlord shall claim by notice to Tenant that
Tenant is violating any of the provisions of the Rules and Regulations and
Tenant shall in good faith dispute such claim to Landlord within thirty (30)
days after service of Landlord's notice of the violation, the dispute shall be
determined by arbitration pursuant to Article 27.
ARTICLE 30.
BUILDING NAME
Section 30.01 The Building may be designated and known by any name or
address Landlord may choose and such designated name or address may be changed
from time to time in Landlord's sole discretion. Tenant agrees not to refer to
the Building by any name or address other than as designated by Landlord. The
Building may be named after any person, firm or otherwise, whether or not such
name is, or resembles, the name of a tenant of the Building. In no event shall
Tenant use, in connection with its business or otherwise, any photographic or
other type of representation of the Building. In the event the Building is named
after any person, firm or otherwise, Tenant, in connection with its business or
otherwise, shall not refer to the Building by such name but shall only use the
street address of the Building. Notwithstanding anything to the contrary set
forth in this Section 30.01, at all times during the Term in which Tenant and/or
an Affiliate (as defined in Section 21.11 above) occupies at least fifty (50%)
percent of the Building, (x) the Building shall be designated and known as "The
Jupiter Building", and (y) provided Tenant obtains Landlord's prior written
consent, which consent shall not be unreasonably withheld, Tenant shall have the
right to change the Building name, provided that such change in name shall be
related to the tenant then in occupancy of at least 50% of the Building. Subject
to the provisions of Article 37, Tenant shall have the right to submit a dispute
to arbitration pursuant to Article 27 as to whether Landlord shall have
reasonably withheld its consent to such change in the Building's name pursuant
to this Section 30.01.
ARTICLE 31.
SHORING; NO DEDICATION
Section 31.01 If an excavation or other substructure work shall be
undertaken or authorized upon the land adjacent to the Building or in the vaults
beneath the Building or in subsurface space adjacent to said vaults, Tenant,
without liability on the part of Landlord therefor, shall afford Landlord or the
person causing such excavation or other substructure work, license to enter upon
the Premises for the purpose of doing such work as Landlord or such person shall
deem necessary to protect any of the walls or structures
-32-
<PAGE> 35
of the Building or surrounding land from injury or damage and to support the
same by proper foundations, pinning and/or underpinning, and, except in case of
emergency, Landlord shall endeavor to have such entry accomplished during
reasonable hours in the presence of a representative of Tenant, who shall be
designated by Tenant promptly upon Landlord's request. Such license to enter
shall be without liability of Landlord to Tenant.
Section 31.02 Landlord shall have the right to erect any gate, chain or
other obstruction or to close off any portion of the Real Property to the public
at any time but only to the extent necessary to prevent a dedication thereof for
public use, provided that Landlord shall (a) use best efforts to minimize the
duration of such restricted access and (b) give Tenant reasonable advance notice
thereof.
ARTICLE 32.
NOTICE OF ACCIDENTS
Section 32.01 Tenant shall give notice to Landlord, promptly after
Tenant learns thereof, of any accident, emergency, occurrence for which Landlord
might be liable, fire or other casualty and all damages to or defects in the
Premises, the Building or the Building Equipment for the repair of which
Landlord might be responsible or which constitutes Landlord's property. Such
notice shall be given by facsimile or personal delivery to the address of
Landlord then in effect for notices.
ARTICLE 33.
VAULTS
Section 33.01 No vaults, vault space or other space not within the
property line of the Building is leased hereunder notwithstanding anything
contained in or indicated on any sketch, blueprint or plan, or elsewhere in this
Lease to the contrary. Landlord makes no representation as to the location of
the property line of the Building. All vaults and vault space and all other
space not within the property line of the Building, which Tenant may be
permitted to use and/or occupy, are to be used and/or occupied under a license
revocable by Landlord on ten (10) days' notice to Tenant, and if any such
license shall be revoked by Landlord, or if the amount of any such vaults, vault
space or other space shall be diminished or required by any federal, state or
municipal authority or public utility, Landlord shall be without liability to
Tenant. Any fee, tax or charge imposed by any governmental authority for any
such vault, vault space or other space shall be paid by Tenant, as Additional
Rent, within five (5) days after Landlord's demand therefor. Landlord shall have
the right from time to time, to substitute for the basement space, if any, then
occupied by Tenant, comparable space in the basement, provided Landlord shall
(a) give Tenant at least thirty (30) days' notice of Landlord's intention to do
so, and (b) relocate Tenant's Property at Landlord's sole cost and expense.
ARTICLE 34.
BROKERAGE
Section 34.01 Landlord and Tenant each represent to the other that in
the negotiation of this Lease it dealt with no brokers other than Newmark &
Company Real Estate, Inc. and that as far as it is aware said broker is the sole
broker who negotiated this Lease. Landlord agrees to pay said broker a
commission in accordance with a separate agreement. Each party hereby
indemnifies the other against liability arising out of any inaccuracy or alleged
inaccuracy of the above representation by the indemnifying party. Landlord shall
have no liability for brokerage commissions arising out of an assignment or a
sublease by Tenant and Tenant shall and does hereby indemnify Landlord and hold
it harmless from any and all liability for brokerage commissions arising out of
any such assignment or sublease. The covenants, representations and agreements
of Tenant and Landlord set forth in this Section 34.01 shall survive the
termination of this Lease.
ARTICLE 35.
SECURITY DEPOSIT
Section 35.01 Tenant has deposited with Landlord the sum of
$4,480,000.00 (the "security deposit") by good, unendorsed certified or official
bank check drawn upon a bank which is a member of the New York Clearing House
Association or by delivery of the Letter of Credit (as hereinafter defined) as
security for the full and punctual performance by Tenant of all of the terms of
this Lease.
Section 35.02 In lieu of a cash deposit, Tenant may deliver the
security deposit to Landlord in the form of a clean, irrevocable,
non-documentary and unconditional letter of credit (the "Letter of Credit")
issued by and drawable upon any commercial bank, trust company, national banking
association or savings and loan association with offices for banking and drawing
purposes in the City of New York (the "Issuing Bank"), which has outstanding,
unsecured, uninsured and unguaranteed indebtedness, or shall have issued a
letter of credit or other credit facility that constitutes the primary security
for an outstanding indebtedness (which is otherwise uninsured and unguaranteed),
that is then rated, without regard to qualification of such rating by symbols
such as "+" or "-" or numerical notation, "Aa" or better by Moody's Investment
Service and "AA" or better by Standard & Poor's Ratings Service (and is not on
credit-watch with negative implication), and has combined capital, surplus and
undivided profits of not less than $500,000,000. The Letter of Credit shall (i)
name Landlord as beneficiary, (ii) be in the amount of the security deposit,
(iii) have a term of not less than one year, (iv) permit multiple drawings, (v)
be fully transferable by Landlord without payment of any fees or charges, and
(vi) otherwise be in form and content satisfactory to Landlord; provided,
however, that Landlord shall in no event be obligated to accept a Letter of
Credit for any amount less than $25,000. If upon the transfer of the Letter of
Credit, any fees or charges shall so be imposed, then such fees or charges shall
be payable solely by Tenant and the Letter of Credit shall so specify. The
Letter of Credit shall provide
-33-
<PAGE> 36
that it shall be deemed automatically renewed, without amendment, for
consecutive periods of one year each thereafter during the Term through the date
that is at least thirty (30) days after the Expiration Date, unless the Issuing
Bank sends a notice (the "Non-Renewal Notice") to Landlord by certified mail,
return receipt requested, not less than thirty (30) days prior to the
then-current expiration date of the Letter of Credit, stating that the Issuing
Bank has elected not to renew the Letter of Credit. Landlord shall have the
right, upon receipt of a Non-Renewal Notice, to draw the full amount of the
Letter of Credit, by sight draft on the Issuing Bank, and shall thereafter hold
or apply the cash proceeds of the Letter of Credit pursuant to the terms of this
Article 35. The Letter of Credit shall state that drafts under and in compliance
with the terms of the Letter of Credit will be duly honored upon presentation to
the Issuing Bank at an office location in New York City. The Letter of Credit
shall be subject in all respects to the Uniform Customs and Practice for
Documentary Credits (1993 revision), International Chamber of Commerce
Publication No. 500. Tenant shall be deemed to have complied with its
obligations set forth in this Section 35.02 if Tenant shall deliver to Landlord
a Letter of Credit substantially in the form of the Letter of Credit attached
hereto as Exhibit E.
Section 35.03 In the event Tenant defaults in the performance of any of
the terms, covenants or conditions of this Lease, including the payment of rent
beyond applicable notice and cure periods (if any), Landlord may use, apply or
retain the whole or any part of the cash security deposit or may notify the
Issuing Bank and thereupon receive all or a portion of the security deposit
represented by the Letter of Credit, and use, apply or retain the whole or any
part of such proceeds, as the case may be, to the extent required for the
payment of any rent or for any reasonable sum which Landlord may expend or may
be required to expend by reason of Tenant's default in respect of any of the
terms of this Lease, including any damages or deficiency in the re-letting of
the Premises, whether accruing before or after summary proceedings or other
re-entry by Landlord. In the case of every such use, application or retention,
Tenant shall, on demand, pay to Landlord the sum so used, applied or retained
which shall be added to the security deposit so that the same shall be
replenished to its former amount. If Tenant shall fully and punctually comply
with all of the terms of this Lease, the security deposit, without interest,
shall be returned to Tenant within thirty (30) days after the termination of
this Lease and delivery of exclusive possession of the Premises to Landlord.
Section 35.04 In the event of a sale or lease of the Building or the
Real Property, Landlord shall have the right to transfer the cash security
deposit or the Letter of Credit, as applicable, to the vendee or lessee and upon
such transfer to such vendee or lessee, Landlord shall ipso facto be released by
Tenant from all liability for the return of the security deposit; and Tenant
agrees to look solely to the new landlord for the return of said cash security
deposit or Letter of Credit; and it is agreed that the provisions hereof shall
apply to every transfer or assignment made of the security deposit to a new
landlord. Tenant shall promptly execute such documents reasonably requested by
Landlord as may be necessary to accomplish any such transfer or assignment of
the security deposit. Tenant shall not assign or encumber or attempt to assign
or encumber the cash security deposit or Letter of Credit and neither Landlord
nor its successors or assigns shall be bound by any such assignment, encumbrance
or attempted assignment or encumbrance.
Section 35.05 Provided that (i) this Lease is then in full force and
effect and Tenant shall not then be in breach or default under any of the terms,
covenants or conditions in this Lease on Tenant's part to observe or perform
beyond applicable notice and cure periods on both the date of any written
request of Tenant for the return of a portion of the Security Deposit and on the
date that the same is to be returned hereunder, (ii) Tenant's initial work shall
have been completed with no mechanics liens having been filed against the
Premises or the Building which were not discharged by Tenant as required under
this Lease and (iii) Tenant's certified public accountant delivers to Landlord a
certificate stating that Tenant's net worth as of such date is not less than
Tenant's net worth on the date hereof, then Tenant may, upon the seventh (7th)
anniversary of the Initial Commencement Date, give Landlord written notice
requesting that Landlord reduce the amount of the Security Deposit to an amount
equal to $2,754,917.30 (the "Reduced Security"). If Tenant has delivered to
Landlord a Letter of Credit in lieu of a cash deposit pursuant to Section 35.02,
then, in order for the aforementioned written request for the Reduced Security
to be effective, it must be accompanied by a replacement Letter of Credit in the
amount of the Reduced Security and otherwise satisfy the requirements of Section
35 hereof. Upon receipt by Landlord of any replacement Letter of Credit pursuant
to the terms herein, Landlord shall return to Tenant the original Letter of
Credit then held by Landlord.
ARTICLE 36.
WINDOW CLEANING
Section 36.01 Tenant will not (a) require, permit, suffer or allow the
cleaning of any window in the Premises from the outside (within the meaning of
Section 202 of the New York Labor Law or any successor statute thereto) unless
the equipment and safety devices required by all Legal Requirements, including
Section 202 of the New York Labor Law or any successor statute thereto, are
provided and used; or (b) permit, suffer or allow the cleaning of the outside of
any window from within the Premises except by persons employed by Landlord; and
Tenant hereby indemnifies Landlord against liability as a result of the Tenant's
(i) requiring, permitting, suffering or allowing any window in the Premises to
be cleaned from the outside in violation of any Legal Requirement or (ii)
permitting, suffering or allowing the outside of any window to be cleaned from
within the Premises other than by persons employed by Landlord.
ARTICLE 37.
CONSENTS
Section 37.01 (a) With respect to any matter herein in which Landlord
may not unreasonably withhold, condition or delay its consent or approval, if
Landlord shall be required to obtain the consent or approval of any Superior
Mortgagee or any Superior Lessor pursuant to the Superior Mortgage and/or
Superior Lease in respect to such matter, Landlord shall in no event be deemed
to have unreasonably withheld or delayed any such request for consent or
approval, if any of the foregoing parties shall have withheld or denied such
consent or approval or otherwise have not responded to a request for such
consent or approval. If Landlord shall so determine that any such matter
requires the consent or approval of any of the foregoing parties, Landlord shall
use good faith reasonable efforts to obtain from such parties such consent or
approval; provided that Tenant shall submit to Landlord, upon Landlord's request
therefor, all plans specifications or other materials or documents as may be
reasonably required by such parties
-34-
<PAGE> 37
(whether pursuant to any Superior Mortgage or Superior Lease) in connection with
each such parties respective consideration of such request. Tenant upon request
of Landlord shall submit same to Landlord at least ten (10) days (or such longer
period as may be provided in this Lease or otherwise required by Landlord from
time to time) prior to the time (if any) that Landlord may be required to submit
same to such parties so that Landlord shall have sufficient time to forward same
thereto without Landlord becoming in violation of any Superior Mortgage or
Superior Lease, as applicable. It is expressly understood that in no event shall
Tenant communicate with any of the foregoing parties in respect of any matter to
which consent or approval may be required thereunder or any matter pertaining to
this Lease.
(b) Wherever it is specifically provided in this Lease that a party's
consent is not to be unreasonably withheld, a response to a request for such
consent shall also not be unreasonably delayed or conditioned, except as set
forth in this Lease. If either Landlord or Tenant considers that the other has
unreasonably withheld or delayed a consent, it shall so notify the other party
within ten (10) days after receipt of notice of denial of the requested consent
or, in case notice of denial is not received, within twenty (20) days after
making its request for the consent.
Section 37.02 Tenant hereby waives any claim against Landlord which it
may have based upon any assertion that Landlord has unreasonably withheld or
unreasonably delayed any such consent, and Tenant agrees that its sole remedy
shall be an action or proceeding to enforce any such provisions or for specific
performance, injunction or declaratory judgment. In the event of such
determination, the requested consent shall be deemed to have been granted;
however, Landlord shall have no liability to Tenant for its refusal or failure
to give such consent. The sole remedy for Landlord's unreasonable withholding or
delaying of consent shall be as provided in this Section. Notwithstanding
anything contained in this Section 37.02, the foregoing limitation on Tenant's
remedies shall not be deemed applicable if a court of competent jurisdiction
determines (which determination shall be final and non-appealable) that Landlord
exercised bad faith in unreasonably withholding its consent to any assignment or
subletting requiring Landlord's consent under Article 21.
ARTICLE 38.
NOTICES
Section 38.01 (a) Except as otherwise expressly provided in this Lease
or pursuant to any Legal Requirement, any bills, statements, notices, demands,
requests, consents, or other communications (collectively, "notices") given or
required to be given under or in connection with this Lease or pursuant to any
Legal Requirement shall be effective only if in writing and,
(i) (A) if to Tenant, then sent either by (1) registered or
certified mail, return receipt requested, postage prepaid, or (2)
Federal Express or other reputable overnight courier, in each such case
at Tenant's address set forth in this Lease if mailed prior to the
Initial Commencement Date or at the Building if subsequent to the
Commencement Date with a copy to Robinson Silverman Pearce Aronsohn &
Berman LLP, 1290 Avenue of the Americas, New York, New York 10104,
Attention: Erik Kahn, Esq., or to such other address as Tenant may
designate for such purpose by like notice, (B) if to Landlord, then
sent either by (1) registered or certified mail, return receipt
requested, postage prepaid or (2) Federal Express or other reputable
overnight courier, to Landlord's address as set forth in this Lease,
with a copy to Parker Chapin LLP 405 Lexington Avenue, 7th floor, New
York, New York 10174 Attention: Stephen E. Estroff, Esq. or to such
other or further address or addresses as Landlord may designate for
such purpose by like notice; or (C) if to any other person, sent by
registered or certified mail, return receipt requested and postage
prepaid addressed to such person's last known principal address or to
such other address as such person may designate to Landlord and Tenant
as its address for such purpose by like notice.
(ii) Notices shall be deemed given and effective as of the
date of receipt set forth on the return receipt or the receipt of the
overnight courier. Notices given by counsel for either party shall be
deemed valid notices if addressed and sent in accordance with the
provisions of this Article.
Section 38.02 (a) Notwithstanding the provisions of Section 38.01,
notices requesting after hours services, pursuant to Article 12 may be given by
delivery to the Building superintendent or any other person in the Building
designated by Landlord to receive such notices.
(b) If there occurs any interruption of certified and registered mail
service lasting more than five (5) consecutive business days, notices may be
given by facsimile or personal delivery, but shall not be effective until
personally received by an executive officer of a party which is a corporation,
or a partner of a party which is a partnership or a principal of any other
entity.
ARTICLE 39.
ESTOPPEL CERTIFICATE; FINANCIAL STATEMENTS; RECORDING
Section 39.01 (a) At any time and from time to time upon not less than
fifteen (15) days' prior notice by Landlord or the Superior Lessor or Superior
Mortgagee to Tenant, Tenant shall, without charge, execute, acknowledge and
deliver a statement in writing addressed to such party as Landlord, or the
Superior Lessor or the Superior Mortgagee, as the case may be, may designate
(with such additions or changes as may be reasonably requested), certifying all
or any of the following: (i) that this Lease is unmodified and in full force and
effect (or if there have been modifications, that this Lease is in full force
and effect as modified and stating the modifications), (ii) whether the Term has
commenced and Fixed Rent and Additional Rent have become payable hereunder and,
if so, the dates to which they have been paid, (iii) whether or not, to the best
knowledge of the signer of such certificate, Landlord is in default in
performance of any of the terms of this Lease and, if so, specifying each such
default of which the signer may have knowledge, (iv) whether Tenant has accepted
possession of the Premises, (v) whether Tenant has made any claim against
Landlord under this Lease and, if so, the nature thereof and the dollar amount,
if any, of such claim, (vi) whether, to the best knowledge of the signer of the
certificate, there exist any offsets or defenses against enforcement of any of
the terms of this Lease upon the part of
-35-
<PAGE> 38
Tenant to be performed, and, if so, specifying the same, (vii) either that
Tenant does not know of any default in the performance of any provision of this
Lease or specifying any default of which Tenant may have knowledge and stating
what action Tenant is taking or proposes to take with respect thereto, (viii)
that, to the knowledge of Tenant, there are no proceedings pending or threatened
against Tenant or Guarantor before or by any court or administrative agency
which, if adversely decided, would materially and adversely affect the financial
condition or operations of Tenant or Guarantor or, if any such proceedings are
pending or threatened to the knowledge of Tenant, specifying and describing the
same and (ix) such further information with respect to the Lease or the Premises
as Landlord may reasonably request or the Superior Mortgagee or Superior Lessor
may require, it being intended that any such statement delivered pursuant hereto
may be relied upon by any prospective purchaser of the Real Property or any part
thereof or of the interest of Landlord in any part thereof, by any mortgagee or
prospective mortgagee thereof, by any lessor or prospective lessor thereof, by
any lessee or prospective lessee thereof, or by any prospective assignee of any
mortgage thereof.
(b) The failure of Tenant to execute, acknowledge and deliver to
Landlord a statement in accordance with the provisions of this Section within
said twenty (20) day period shall constitute an acknowledgment by Tenant, which
may be relied on by any person who would be entitled to rely upon any such
statement, that such statement as submitted by Landlord is true and correct.
(c) At any time and from time to time, but on no more than two (2)
occasions during any calendar year, upon not less than fifteen (15) days' prior
notice by Tenant to Landlord, Landlord shall, without charge, execute,
acknowledge and deliver a statement in writing, addressed to such party as
Tenant may designate, certifying all or any of the following: (i) that this
Lease is unmodified and in full force and effect (or if there have been
modifications, that this Lease is in full force and effect as modified and
stating the modifications), (ii) whether the Term has commenced and Fixed Rent
and Additional Rent have become payable hereunder and, if so, the dates to which
they have been paid, (iii) whether or not, to the actual knowledge of the signer
of such certificate, Tenant is in default in performance of any of the terms of
this Lease or whether Landlord has sent any notices of default to Tenant and, if
so, specifying each such default of which the signer may have knowledge, (iv)
whether Tenant has accepted possession of the Premises, (v) whether Landlord has
made any claim against Tenant under this Lease and, if so, the nature thereof
and the dollar amount, if any, of such claim, (vi) whether, to the actual
knowledge of the signer of the certificate, there exist any offsets or defenses
against enforcement of any of the terms of this Lease upon the part of Landlord
to be performed, and, if so, specifying the same, (vii) either that Landlord has
received no notice of any default in the performance of any provision of this
Lease or specifying the default of which Landlord has received notice and
stating what action Landlord is taking or proposes to take with respect thereto,
and (vii) such further reasonably available information with respect to the
Lease or the Premises as Tenant may reasonably request, it being intended that
any such statement delivered pursuant hereto may be relied upon by any
prospective purchaser of the interest of Tenant in this Lease or any part
thereof or any sublessee or prospective sublessee of the Premises or any part
thereof.
Section 39.02 Tenant will furnish to Landlord:
(a) Within one hundred twenty (120) days after the end of each fiscal
year of Tenant and each Guarantor, respectively, annual consolidated financial
statements (balance sheets and profit and loss statements) of Tenant and each
Guarantor, respectively, in comparative form, certified by an independent
certified public accountant of recognized standing (selected by Tenant or such
Guarantor, as the case may be) if such certified statements are delivered to
shareholders or any other party, and otherwise certified by the chief financial
officer of Tenant or such Guarantor, as the case may be; and
(b) Such other information regarding the condition (financial or
otherwise) of Tenant and each Guarantor as Landlord may reasonably request.
Each financial statement of Tenant and each Guarantor shall be accompanied by a
certificate of its chief financial officer specifying in reasonable detail
whether a material adverse change in the business, condition (financial or
otherwise), operations or prospects of Tenant or its affiliates or such
Guarantor or its affiliates has occurred during the period covered by such
statement.
Section 39.03 Subject to Section 44.09, Tenant agrees not to record
this Lease or any other document related hereto.
ARTICLE 40.
PARTIES BOUND
Section 40.01 The terms 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 21 shall operate to vest any right 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 16.
Section 40.02 (a) The term "Landlord" shall mean only the owner at that
time in question of the present landlord's interest in the Building and in the
event of a sale or transfer of the Building (by operation of law or otherwise),
or in the event of the making of a lease of all or substantially all of the
Building, or in the event of a sale or transfer (by operation of law or
otherwise) of the leasehold estate under any such lease, the grantor, transferor
or lessor, as the case may be, shall be and hereby is (to the extent of the
interest or portion of the Building or leasehold estate sold, transferred or
leased) automatically and entirely released and discharged, from and after the
date of such sale, transfer or leasing, of all liability in respect of the
performance of any of the terms of this Lease on the part of Landlord thereafter
to be performed; provided that the purchaser, transferee or lessee
(collectively, "Transferee") shall be deemed to have assumed and agreed to
perform, subject to the limitations of this Section and Section 22.04 (and
without further agreement between the then parties hereto, or among such parties
and the Transferee) and only during and in respect of the Transferee's period of
ownership of the Landlord's interest under this Lease, all of the terms of this
Lease on the part of Landlord to be performed during such period of ownership,
which terms shall be deemed to "run with the land" it being intended that
Landlord's obligations hereunder shall, as limited by this Article, be binding
on Landlord, its successors and assigns, only during and in respect of their
respective successive periods of ownership.
-36-
<PAGE> 39
(b) No recourse shall be had on any of Landlord's obligations hereunder
or for any claim based thereon or otherwise in respect thereof against any
incorporator, subscriber to the capital stock, shareholder, officer or director,
past, present or future, of any corporation or any past, present or future
member or manager of any limited liability company or any partner (general or
limited) or joint venturer which shall be Landlord hereunder or included in the
term "Landlord" or of any successor of any such corporation, or against any
principal, disclosed or undisclosed, or any affiliate of any party which shall
be Landlord or included in the term "Landlord," whether directly or through
Landlord or through any receiver, assignee, trustee in bankruptcy or through any
other person, firm or corporation, whether by virtue of any constitution,
statute or rule of law or by enforcement of any assessment or otherwise, all
such liability being expressly waived and released by Tenant.
(c) Tenant shall look solely to Landlord's estate and interest in the
Building (including, to the extent of a final non-appealable judgment entered
against Landlord, undistributed rent proceeds, issues or profits therefrom) for
the satisfaction of any right of Tenant for the collection of a judgment or
other judicial process or arbitration award requiring the payment of money by
Landlord and no other property or assets of Landlord, Landlord's agents,
incorporators, shareholders, officers, directors, partners, principals
(disclosed or undisclosed) or affiliates shall be subject to levy, lien,
execution, attachment, or other enforcement procedure for the satisfaction of
Tenant's rights and remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder or under law, or Tenant's use and
occupancy of the Premises or any other liability of Landlord to Tenant.
Section 40.03 (a) The term "Tenant" shall mean the Tenant herein named
or any assignee or other successor in interest (immediate or remote) of the
Tenant herein named, which at the time in question is the owner of the Tenant's
estate and interest granted by this Lease; but the foregoing provisions of this
subsection shall not be construed to permit any assignment of this Lease or
subletting of the Premises or to relieve the Tenant herein named or any assignee
or other successor in interest (whether immediate or remote) of the Tenant
herein named from the full and prompt performance of Tenant's obligations
hereunder.
(b) No recourse shall be had on any of Tenant's obligations hereunder
or for any claim based thereon or otherwise in respect thereof against any
incorporator, subscriber to the capital stock, shareholder, officer or director,
past, present or future, of any corporation or any past, present or future
member or manager of any limited liability company or any partner (general or
limited) or joint venturer which shall be Tenant hereunder or included in the
term "Tenant" or of any successor of any such corporation, or against any
principal, disclosed or undisclosed, or any affiliate of any party which shall
be Tenant or included in the term "Tenant," whether directly or through Tenant
or through any receiver, assignee, trustee in bankruptcy or through any other
person, firm or corporation, all such liability being expressly waived and
released by Tenant.
Section 40.04 Nothing contained in this Lease shall be deemed to confer
upon any tenant, or anyone claiming under or through any tenant, any right to
insist upon, or to enforce against Landlord or Tenant, the performance of
Tenant's obligations hereunder.
Section 40.05 The submission by Landlord to Tenant of this Lease in
draft form shall be deemed submission solely for Tenant's consideration and not
for acceptance and execution. Such submission shall have no binding force and
effect, shall not constitute an option for the leasing of the Premises, and
shall not confer any rights or impose any obligations upon either party. The
submission by Landlord of this Lease for execution by Tenant and the actual
execution and delivery thereof by Tenant to Landlord shall similarly have no
binding force and effect on Landlord or Tenant unless and until Landlord shall
have executed this Lease and a counterpart thereof shall have been delivered to
Tenant.
ARTICLE 41.
HAZARDOUS SUBSTANCES
Section 41.01 (a) Tenant shall not (i) cause or permit to be brought to
the Building or the Land any hazardous substances, (ii) cause or permit the
storage or use of hazardous substances in any manner not permitted by any Legal
Requirements or Insurance Requirements applicable to the Land, the Building, or
the Premises or any part thereof, to Tenant's use thereof or to Tenant's
observance of any provision of this Lease, or (iii) cause or permit the escape,
disposal or release of any hazardous substances on or in the vicinity of the
Building or Land; provided, that nothing herein shall prevent Tenant's use of
such reasonable amounts of hazardous substances customarily used in the ordinary
course of operation of Tenant's business in the Premises in accordance with this
Lease if such use is for such ordinary course of such operation and is in
accordance with all Legal Requirements and Insurance Requirements applicable to
the Land, the Building or the Premises, or any part thereof, to Tenant's use
thereof or to Tenant's observance of any provision of this Lease.
(b) Landlord shall deliver the Premises to Tenant as provided in
Article 3 free of any asbestos and Landlord shall be responsible, at its sole
cost and expense, to promptly remove in accordance with Legal Requirements, any
asbestos found in the Premises at any time during the Term.
Section 41.02 As used herein, the term "hazardous substances" shall
mean (a) "hazardous wastes" as defined by the Resource, Conservation and
Recovery Act of 1976 (42 U.S.C. Section 9601 et seq.,), as amended, and
regulations promulgated thereunder, (b) any "hazardous, toxic or dangerous
waste, substance or material" specifically defined as such in (or for purposes
of) the Comprehensive Environmental Response, Compensation and Liability Act of
1980 (42 U.S.C. Section 9601 et seq.), as amended and regulations promulgated
thereunder, and (c) any hazardous, toxic or dangerous chemical, biological or
other waste, substance or material as defined in any so-called "superfund" or
"superlien" law or any other federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree now or hereafter in effect regulating,
relating to or imposing liability or standards of conduct concerning such waste,
substance or material; including, without limiting the generality of the
foregoing, asbestos, radon, urea formaldehyde, polychlorinated biphenyls, and
petroleum products including gasoline, fuel oil, crude oil and various
constituents of such products. Without limiting the generality of Article 19
hereof, Tenant agrees that the covenants and warranties contained in this
Article are included within the matters as to which the indemnities by Tenant
set forth in Article 19 apply.
Section 41.03 The covenants contained in this Article shall survive the
expiration or earlier termination of this Lease.
-37-
<PAGE> 40
ARTICLE 42.
EXTENSION OPTION
Section 42.01 (a) Provided that Tenant and/or an Affiliate (as defined
in Section 21.11 above) is then occupying at least sixty (60%) percent of the
Premises, Tenant shall have the option (the "Extension Option) to extend the
Term for the five (5) year period (the "Extension Term") commencing on the date
(the "Extension Term Commencement Date") which is the day next succeeding the
Expiration Date, and ending on the date (the "Extension Term Expiration Date")
which is the fifth (5th) anniversary of the Expiration Date (as such term is
defined herein but without regard to the Extension Option set forth in this
Article 42), both dates inclusive, in accordance with, and subject to, the
terms, covenants and conditions hereinafter expressly set forth. If Tenant
desires to exercise the Extension Option, Tenant shall do so by sending to
Landlord written notice (the "Extension Notice") of Tenant's exercise of the
Extension Option on or before the date (the "Extension Notice Date") which is
nine (9) months prior to the Expiration Date.
(b) If Tenant exercises the Extension Option in accordance with, and
subject to, all of the terms, covenants and conditions contained in this
Article, then effective on the Expiration Date, the Term shall be extended by
the Extension Term, upon all of the terms, covenants and conditions contained in
this Lease, without any further right of extension, except that (i) the Fixed
Rent during the Extension Term shall be in an amount equal to the greater of (x)
the Fixed Rent, including, without limitation, any increases therein pursuant to
the provisions of Article 7 hereof or (y) Ninety-Five Percent (95%) of the Fair
Market Value Rent (as determined pursuant to subsection (c) below) and shall in
either case be subject to an escalation during the Extension Term of three
percent (3%) per annum (as set forth in Section 7.02) and (ii) the "Base Tax
Year" shall be the Tax Year in which the Extension Term Commencement Date shall
occur.
(c) For purposes hereof, "Fair Market Value Rent" shall mean the then
prevailing annual fair market rent which a willing new tenant unrelated to
Landlord would pay for the Premises in its then existing condition for the
Extension Term, on a non-renewal, non-expansion basis and subject to the terms
and conditions of this Lease (including, without limitation, Article 5, but
excluding the Extension Option and Exhibit C), and taking into account the: (i)
base rentals at which leases are being concluded for comparable space in the
Building and in comparable buildings in the same rental area as the Building,
(ii) the new Base Tax Year (which shall be the Tax Year in which the Extension
Term Commencement Date shall occur), (iii) the cumulative amount of the
operating expense escalation set forth in Article 7, (iv) absence of a work
allowance and/or rent concession and cash contribution, (v) physical condition,
size, location and configuration of the Premises at the time of commencement of
the term valued as a whole single block of space, (vi) payment of a full
brokerage commission that Landlord would be required to pay in connection with
Tenant's Exercise of its Extension Option, if paid by Landlord, and (vii) such
other relevant factors. Landlord shall notify Tenant in writing of Landlord's
determination of Fair Market Value Rent at least six (6) months prior to the
Extension Term Commencement Date. Tenant shall notify Landlord in writing within
thirty (30) days after such notice from Landlord whether Tenant agrees or
disagrees with Landlord's determination. If Tenant disagrees with Landlord's
determination, such written notice shall set forth the name and address of an
appraiser (the "Tenant's Appraiser") to act on behalf of Tenant in connection
with the determination of Fair Market Value Rent as set forth below. If Tenant
shall fail to send such notice within the time period and in the manner
prescribed above, and such failure shall continue thereafter for a further
period of five (5) days after Tenant's receipt of a second notice (which second
notice shall specify such failure and make reference to this Subsection (c),
then Landlord's determination of Fair Market Value Rent shall govern. If Tenant
shall have given such notice in accordance with the foregoing requirements, Fair
Market Value Rent shall be determined as follows:
(i) Landlord, within fifteen (15) days after its receipt of
such notice from Tenant, shall send written notice to Tenant in which
Landlord shall appoint an appraiser ("Landlord's Appraiser") to act on
behalf of Landlord in connection with the determination of Fair Market
Value Rent as set forth below, which notice shall set forth the name
and address of such appraiser. If (x) Landlord shall fail to appoint
Landlord's Appraiser within said fifteen (15) day period, and (y) such
failure shall continue for seven (7) days after Landlord receives
written notice of such failure from Tenant, then Tenant may apply to
the American Arbitration Association or any organization which is the
successor thereto (the "AAA") for --- appointment of Landlord's
Appraiser.
(ii) After the appointment of both Tenant's Appraiser and
Landlord's Appraiser (collectively, the "Appraisers"), the Appraisers
shall jointly appoint, by written instrument delivered to both Landlord
and Tenant within ten (10) days after the appointment of Landlord's
Appraiser, a third appraiser to act in connection with the dispute in
question (herein called the "Arbitrator"); it being agreed that if the
Appraisers shall fail to appoint the Arbitrator within the aforesaid
ten (10) day period, then either Landlord or Tenant may apply to the
AAA, or if the AAA shall refuse or fail to act, to a court of competent
jurisdiction in the State of New York, for the appointment of the
Arbitrator.
(iii) Within ten (10) days after the appointment of the
Arbitrator, Landlord and Tenant shall each simultaneously submit to the
Arbitrator, in sealed envelopes, written appraisals prepared by
Landlord's Appraiser and Tenant's Appraiser, respectively, setting
forth such party's opinion of the Fair Market Value Rent (such
statement submitted by Landlord's Appraiser is hereinafter referred to
as "Landlord's Appraiser's Rent Submission" and such statement
submitted by Tenant's Appraiser is hereinafter referred to as "Tenant's
Appraiser's Rent Submission").
(iv) The decision of the Arbitrator shall be limited to the
selection of which of Landlord's Appraiser's Rent Submission or the
Tenant's Appraiser's Rent Submission, in the Arbitrator's opinion, more
accurately reflects the Fair Market Value Rent given the parameters
therefor set forth above in this subsection (C); and
(v) Each of Landlord's Appraiser, Tenant's Appraiser and the
Arbitrator shall be a qualified member of the American Institute of
Real Estate Appraisers (or any successor of such Institute, or if such
organization or successor shall no longer be in existence, a recognized
national association or institute of appraisers), possess a valid and
current MAI designation, and shall have at least ten (10) years'
experience in office leasing in the Borough of Manhattan, City and
State of New York. Each of Landlord's Appraiser, Tenant's Appraiser and
the Arbitrator appointed hereunder (whether appointed by Landlord,
Tenant or any other person(s), organization or court) shall not then be
employed by Landlord, Tenant or any affiliate of Landlord or Tenant,
and, in all other respects, shall be impartial.
-38-
<PAGE> 41
(vi) If, as of the first day of the Extension Term, the Fair
Market Value Rent shall not have been determined pursuant to this
subsection (C), then (x) for the period (if any) from the first day of
the Extension Term until the date upon which the Fair Market Value Rent
shall have been so determined (the "Pre-Determination Period"), Tenant
shall make payments, on account of the Fixed Rent for the Premises (and
as and when Fixed Rent is payable hereunder), at a per annum rate equal
to the per annum amount set forth in Landlord's Appraiser's Rent
Submission and (y) upon the determination of the Fair Market Value
Rent, such determination shall be retroactively applied to the
Pre-Determination Period and (i) if the payments made by Tenant
pursuant to clause (x) above on account of the Fixed Rent attributable
to the Pre-Determination Period were less than the Fixed Rent as
finally determined hereunder to be payable for such period, then
Tenant, within thirty (30) days after demand therefor, shall pay to
Landlord the amount of the resulting deficiency, or (ii) if the
payments made by Tenant pursuant to clause (x) above on account of the
Fixed Rent attributable to the Pre-Determination Period were in excess
of Fixed Rent as finally determined hereunder to be payable for such
period, then the amount of such excess (as reduced by any amount
payable by Tenant under this Lease which, as of the date such excess is
determined, has not been collected by Landlord) shall be credited by
Landlord against the next subsequent payments of Fixed Rent and/or
Additional Rent payable by Tenant pursuant to this Lease. Each party
shall pay the fees, costs and expenses of the broker or appraiser
selected by such party and the fees, costs and expenses of the
Arbitrator shall be shared equally by Landlord and Tenant.
(d) TIME SHALL BE OF THE ESSENCE WITH RESPECT TO ALL DATES SET FORTH IN
SECTIONS 42.01 THROUGH 42.03.
Section 42.02 If, in accordance with and subject to, all of the terms,
covenants and conditions contained in this Article, the Term is extended for the
Extension Term, then "Expiration Date," as such term is used in this Lease,
shall mean the "Extension Term Expiration Date" (or the date of sooner
termination of this Lease pursuant hereto or pursuant to applicable law) and
"Term", as such term is used in this Lease, shall mean the Term, as extended by
the Extension Term. Notwithstanding anything which may be contained in this
Lease to the contrary, Exhibit C shall not apply during the Extension Term.
Section 42.03 Notwithstanding anything contained in this Lease to the
contrary, Tenant shall have no option to extend the Term for the Extension Term
and the Extension Option shall be void and of no further force or effect, if:
(a) the Expiration Date has occurred, or this Lease has otherwise been
terminated, or (b) Tenant fails to send to Landlord the Extension Notice on or
before the Extension Notice Date, time being of the essence, in accordance with
Sections 42.01(A), or (c) if at the time Tenant sends to Landlord the Extension
Notice, Tenant is in default under any of the monetary or material non-monetary
terms, covenants or conditions in this Lease on Tenant's part to observe or
perform under this Lease beyond any applicable notice and grace period therefor
provided herein. Without limiting any of the foregoing provisions of this
Section 42.03 and notwithstanding anything contained in this Lease to the
contrary, if during the period commencing on the date immediately succeeding the
date on which Tenant sends to Landlord the Extension Notice and ending on the
Extension Term Commencement Date, both dates inclusive, Tenant shall be or
become in default of any of the monetary or material non-monetary terms,
covenants or conditions in this Lease on Tenant's part to observe or perform and
such default is not cured within the applicable grace or cure period, if any,
set forth in this Lease, Landlord may (but shall not be obligated to) send to
Tenant a notice (the "Extension Option Termination Notice") terminating and
revoking the Extension Option and Tenant's exercise thereof, in which event,
effective on the date Landlord sends to Tenant the Extension Option Termination
Notice, Tenant shall have no option to extend or further extend the Term for the
Extension Term and the Extension Option shall be terminated, revoked, void and
of no further force or effect.
Section 42.04 Except as expressly set forth in this Article, Tenant
shall not have any option or right to extend or renew the Term.
ARTICLE 43.
BANKRUPTCY OR INSOLVENCY
Section 43.01 Neither Tenant's interest in this Lease, nor any estate
hereby created in Tenant nor any interest herein or therein, shall pass to any
debtor-in-possession, trustee, or receiver or assignee for the benefit of
creditors or otherwise by operation of law except as may specifically be
provided pursuant to the Bankruptcy Code.
Section 43.02 If (a) Tenant shall file a voluntary petition in
bankruptcy or insolvency, or shall be adjudicated a bankrupt or insolvent, or
shall file any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the
present or any future federal bankruptcy act or any other present or future
applicable federal, state or other statute or law (foreign or domestic), or
shall make an assignment for the benefit of creditors or shall seek or consent
or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant
or of all or any part of Tenant's Property; or (b) within sixty (60) days after
the commencement of any proceeding against Tenant or Tenant's Guarantor, whether
by the filing of a petition or otherwise, seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future federal bankruptcy law or any other present
or future applicable federal, state or other statute or law (foreign or
domestic), such proceeding shall not have been dismissed, or if, within sixty
(60) days after the appointment of any trustee, receiver or liquidator of Tenant
or of all or any part of Tenant's Property, without the consent or acquiescence
of Tenant, such appointment shall not have been vacated or otherwise discharged,
or if any execution or attachment shall be issued against Tenant or any of
Tenant's Property pursuant to which the Premises shall be taken or occupied or
attempted to be taken or occupied; or (c) the interest or estate created in
Tenant hereby shall be taken in execution or by other process of law, or (d)
Tenant's Guarantor, if any, or his executors, administrators, successors or
assigns, if any, shall be adjudicated insolvent or bankrupt or file for
bankruptcy protection pursuant to the provisions of the bankruptcy or insolvency
laws of any state and/or the Bankruptcy Code or a receiver or trustee of the
property of Tenant's Guarantor, if any, shall be appointed by reason of the
insolvency or inability of Tenant's Guarantor, if any, to pay its debts, or (e)
any assignment shall be made of the property of Tenant or Tenant's Guarantor, if
any, for the benefit of creditors, then and in any such events, notwithstanding
any automatic stay applicable in bankruptcy or any other law(s), Landlord may
give to Tenant notice of intention to terminate this Lease to end the Term and
the estate hereby granted at the expiration of three (3) days from the date of
the giving of such notice, and, in the event such notice is given, this Lease
and the Term and estate hereby granted (whether or not the Term shall have
commenced) shall terminate upon the expiration of said three (3) days with the
same effect as if that day were the
-39-
<PAGE> 42
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 16 and Tenant and Tenant's Guarantor shall remain liable as herein
provided.
Section 43.03 Tenant or Tenant's Guarantor, if any, shall not cause or
give cause for the appointment of a trustee or receiver of the assets of Tenant
or Tenant's Guarantor, if any, and shall not make any assignment for the benefit
of creditors, or become or be adjudicated insolvent. The allowance of any
petition under any insolvency law except under the Bankruptcy Code or the
appointment of a trustee or receiver of Tenant or Tenant's Guarantor, if any, or
of the assets of either of them, shall be conclusive evidence that Tenant
caused, or gave cause therefor, unless such allowance of the petition, or the
appointment of a trustee or receiver, is vacated within thirty (30) days after
such allowance or appointment. Any act described in this Section 43.03 shall be
deemed a material breach of Tenant's obligations hereunder, and this Lease shall
thereupon automatically terminate. Landlord does, in addition, reserve any and
all other remedies provided in this Lease or in law.
Section 43.04 (a) Upon the filing of a petition by or against Tenant
under any chapter of the Bankruptcy Code, Tenant, as debtor and as debtor in
possession, and any trustee who may be appointed agree as follows: (i) to
perform each and every obligation of Tenant under this Lease including, without
limitation, the continuous and uninterrupted occupancy and use of the Premises
as is required under Article 7 until such time as this Lease is either rejected
or assumed by order of the United States Bankruptcy Court; (ii) to pay monthly
in advance on the first day of each month as reasonable compensation for use and
occupancy of the Premises an amount equal to all minimum rent and other charges
otherwise due pursuant to this Lease and to pay Percentage Rent monthly as set
forth in this Lease; (iii) to reject or assume this Lease within sixty (60) days
of the filing of such petition under Chapter 7 of the Bankruptcy Code or within
one hundred twenty (120) days (or such shorter term as Landlord, in its sole
discretion, may deem reasonable so long as notice of such period is given) of
the filing of a petition under any other chapter of the Bankruptcy Code, Tenant
hereby knowingly and voluntarily waiving any right to seek time additional to
the minimum period set forth in 11 U.S.C. Section 365(d)(4) or any similar
statute to assume or reject this Lease and hereby acknowledging that there does
not exist, nor could there exist, cause to seek such extension; (iv) to give
Landlord at least forty-five (45) days prior written notice of any proceeding
relating to any assumption of this Lease; (v) to give Landlord at least thirty
(30) days prior written notice of any abandonment of the Premises; any such
abandonment to be deemed a rejection of this Lease; (vi) to do all other things
of benefit to Landlord otherwise required under the Bankruptcy Code; (vii) to be
deemed to have rejected this Lease in the event of the failure to comply with
any of the above; and (viii) to have consented to the entry of an order by an
appropriate United State Bankruptcy Court providing all of the above, waiving
notice and hearing of the entry of same.
(b) No default of this Lease by Tenant, either prior to or subsequent
to the filing of such a petition, shall be deemed to have been waived unless
expressly done so in writing by Landlord.
(c) It is understood and agreed that this is a Lease of real property
in a shopping center as such a lease is described in Section 365(b)(3) of the
Bankruptcy Code.
(d) Included within and in addition to any other conditions or
obligations imposed upon Tenant, any Trustee, or any successor of Tenant as
adequate assurance of future performance in the event of assumption and/or
assignment are the following: (i) the cure of any monetary defaults and the
reimbursement of pecuniary loss within not more than thirty (30) days of
assumption and/or assignment; (ii) the deposit of an additional sum equal to
three (3) months' rent to be held pursuant to the terms of Article 34 of this
Lease; (iii) the use of the Premises as set forth in Article 7 and the quality,
quantity and/or lines of merchandise of any goods or services required to be
offered for sale are unchanged; (iv) the reorganized debtor or assignee of such
debtor in possession or of Tenant's trustee demonstrates in writing that it has
sufficient background including, but not limited to, substantial retailing
experience in entertainment/retail facilities of comparable size and financial
ability to operate a retail establishment out of the Premises in the manner
contemplated in this Lease and meet all other reasonable criteria of Landlord as
did Tenant upon execution of this Lease; (v) the prior written consent of each
Superior Mortgagee to which this Lease has been assigned as collateral security;
and (vi) the Premises, at all times, remains a single retail establishment and
no physical changes of any kind may be made to the Premises unless in compliance
with the applicable provisions of this Lease. Tenant also expressly acknowledges
and agrees that neither Tenant nor any successor in interest (including but not
limited to a trustee in bankruptcy appointed to serve as trustee for Tenant) may
assume or assign Tenant's rights under this Lease pursuant to 11 U.S.C. Section
365 (or any similar statute) unless, in addition to the provisions of 11 U.S.C.
Section 365(b)(3), each of the following conditions, which Landlord and Tenant
acknowledge are commercially reasonable in the context of a bankruptcy
proceeding, have been fully satisfied and Landlord has so acknowledged in
writing that: (A) The assumption of the Lease will not breach any provision in
any other lease, mortgage, financing agreement or other agreement by which
Landlord is bound relating to the Building; (B) The assumption of the Lease will
not disrupt, in Landlord's judgment, the tenant mix of the Building or any other
attempt by Landlord to provide a specific variety of retail stores in the
Building which, in Landlord's judgment, would be most beneficial to all of the
tenants and patrons of the Building and would enhance the image, reputation, and
profitability of the Building; (C) The assumption of the Lease will not change
the quality, quantity and/or lines of merchandise of any goods or services
required to be offered for sale; and (D) The assumption of the Lease will not
result in alteration of the Premises from a single retail location or the making
of physical changes of any kind to the Premises unless in compliance with the
applicable provisions of this Lease.
(e) For purposes of this Article 43, the word "Tenant" shall mean any
one or more persons primarily or secondarily liable for Tenant's obligations
under the Lease.
ARTICLE 44.
MISCELLANEOUS
Section 44.01 This Lease contains the entire agreement between the
parties and all prior negotiations and agreements are merged into this Lease.
This Lease may not be changed, modified, abandoned or discharged, in whole or in
part, nor any of its provisions waived except by a written instrument which (a)
expressly refers to this Lease, (b) is executed by the party against whom
enforcement of the change, modification, abandonment, discharge or waiver is
sought and (c) is permissible under the Superior Mortgage and the Superior
Lease.
-40-
<PAGE> 43
Section 44.02 Tenant expressly acknowledges that neither Landlord nor
Landlord's agents has made or is 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, and no rights, easements or licenses are or shall be acquired by Tenant
by implication or otherwise unless expressly set forth in this Lease.
Section 44.03 Any apportionment or prorations of rent to be made under
this Lease shall be computed on the basis of a 360 day year, with twelve (12)
months of thirty (30) days each.
Section 44.04 The laws of the State of New York applicable to contracts
made and to be performed wholly within the State of New York shall govern and
control the validity, interpretation, performance and enforcement of this Lease.
Section 44.05 (a) If Tenant is a corporation, each person executing
this Lease on behalf of Tenant hereby covenants, represents and warrants that
Tenant is a duly incorporated or duly qualified (if foreign) corporation and is
authorized to do business in the State of New York (a copy of evidence thereof
to be supplied to Landlord upon request); and that each person executing this
Lease on behalf of Tenant is an officer of Tenant and that he is duly authorized
to execute, acknowledge and deliver this Lease to Landlord (a copy of a
resolution to that effect to be supplied to Landlord upon request).
(b) If Landlord is a corporation or a limited liability company, each
person executing this Lease on behalf of Landlord hereby covenants, represents
and warrants that Landlord is a duly incorporated In the case of a corporation)
or duly organized (in the case of a limited liability company) or duly qualified
(if foreign) and is authorized to do business in the State of New York (a copy
of evidence thereof to be supplied to Tenant upon request); and that each person
executing this Lease on behalf of Tenant is an officer of Landlord (in the case
of a corporation) or a member and/or manager of Landlord (in the case of limited
liability company) and that he is duly authorized to execute, acknowledge and
deliver this Lease to Tenant (a copy of a resolution, in the case of a
corporation, or consent of all members and managers, in the case of limited
liability company, to that effect to be supplied to Tenant upon request).
Section 44.06 If Tenant is a general partnership (or is comprised of 2
or more persons, individually, or as joint venturers or as copartners of a
partnership) or if Tenant's interest in this Lease shall be assigned to a
partnership (or to 2 or more persons, individually, or as joint venturers or as
copartners of a partnership) pursuant to Article 21 (any such partnership and
such persons are referred to in this Article as "Partnership Tenant"), the
following provisions of this Section shall apply to such Partnership Tenant: (a)
the liability of each of the parties comprising Partnership Tenant shall be
joint and several, and (b) each of the parties comprising Partnership Tenant
hereby consents in advance to, and agrees to be bound by, any modifications,
termination, discharge or surrender of this Lease which may hereafter be made
and by any notices, demands, requests or other communications which may
hereafter be given by Partnership Tenant or by any of the parties comprising
Partnership Tenant, and (c) any bills, statements, notices, demands, requests or
other communications given or rendered to Partnership Tenant or to any of the
parties comprising Partnership Tenant shall be deemed given or rendered to
Partnership Tenant and to all such parties and shall be binding upon Partnership
Tenant and all parties, and (d) if Partnership Tenant shall admit new partners,
all such new partners shall, by their admission to Partnership Tenant, be deemed
to have assumed performance of all of the terms, covenants and conditions of
this Lease on Tenant's part to be observed and performed, and (e) Partnership
Tenant shall give prompt notice to Landlord of the admission of any such new
partners, and upon demand of Landlord, shall cause each such new partner to
execute and deliver to Landlord an agreement in form reasonably satisfactory to
Landlord, wherein each such new Partner shall assume performance of all of the
terms, covenants and conditions of this Lease on Tenant's part to be observed
and performed (but neither Landlord's failure to request any such agreement nor
the failure of any such new partner to execute or deliver any such agreement nor
the failure of any such new partner to execute or deliver any such agreement to
Landlord shall vitiate the provisions of Subdivision (d) of this Section 44.06).
Section 44.07 Landlord, at its sole cost and expense, shall install and
maintain, the sign(s) and/or plaque(s) shown on the drawing(s) annexed hereto
and made a part hereof as Exhibit H (which Landlord hereby approves) in location
shown on such drawing(s). Notwithstanding the foregoing, Tenant's sign shall not
exceed 3 feet in height by 3 feet in length. If said drawings are not annexed
hereto as Exhibit H, Tenant shall submit its proposed sign and/or plaque
drawings to Landlord for Landlord's prior approval. All features of such sign(s)
and/or plaque(s) including, without limitation, the size, color, materials and
location of same shall be subject to (i) Landlord's prior written approval which
approval shall not be unreasonably withheld, and (ii) the prior written approval
of the LPC. Subject to the provisions of Article 37, if Landlord shall fail to
respond to Tenant's written notice requesting Landlord's approval of signage
within fifteen (15) days after receipt by Landlord of such notice accompanied by
all drawings, plans and specifications reasonably required by Landlord to review
such request, and Landlord shall fail to respond within ten (10) days after
receipt of a second notice from Tenant (which such notice shall refer to the
original notice and this Section 44.07), then Landlord shall be deemed to have
approved such signage. Tenant, at is sole cost and expense, shall have the right
to change such signage, provided that Tenant complies with the provisions of
this Section 44.07. In the event Tenant elects to change its signage and
Landlord shall have approved such change in signage in accordance with the
provisions hereof, Landlord, at Tenant's expense, shall change Tenant's signage
and Tenant shall pay to Landlord the actual cost of such work upon receipt of an
invoice therefor. Subject to the provisions of Article 37, Tenant shall have the
right to submit a dispute to arbitration pursuant to Article 27 as to whether
Landlord shall have reasonably withheld its consent to Tenant's proposed signage
pursuant to this Section 44.07. Tenant, at its sole cost and expense, shall have
the right to install a sign in the commercial portion of the lobby, provided
Tenant complies with the provisions of this Section 44.07. Landlord hereby
agrees that provided Tenant and/or an Affiliate occupies more than 50% of the
Building, Landlord shall not allow or permit another sign (other than a listing
in the Building's directory) to be installed in the commercial portion of the
lobby or at the entrance of the Building.
Section 44.08 All Exhibits to this Lease are hereby incorporated into
and made a part of this Lease.
Section 44.09 Within ten (10) days after Landlord's receipt of a
request therefor from Tenant (or contemporaneously with the execution of this
Lease if requested by Tenant), Landlord shall execute, acknowledge and deliver
to Tenant a short form or memorandum of this Lease in recordable form, which may
be recorded by Tenant. Within ten (10) days after receipt of a request therefor
from Tenant, Landlord shall execute, acknowledge and deliver to Tenant a short
form or memorandum of any amendment to or modification of this Lease, in
recordable form and otherwise in form reasonably satisfactory to Landlord, each
of which memoranda may be recorded by Tenant. Recording, filing and like charges
imposed by any governmental agency to effect such
-41-
<PAGE> 44
recording shall be paid by Tenant. Upon the termination of this Lease, Tenant
shall execute, acknowledge and deliver to Landlord all necessary instrument(s)
in recordable form evidencing a termination of this Lease and sufficient to
discharge any memorandum hereof of record. Landlord shall execute any documents
reasonably required in connection with the recording or discharge of any
Memorandum of this Lease and Tenant shall pay for all recording, filing and like
charges imposed by any governmental agency to effect such recording.
Section 44.10 If Landlord and Tenant shall prevail against the other
with respect to any claim relating to this Lease or any part thereof, or the
collection of any Rent due or to become due hereunder, or recovery of possession
of the Premises then the non-prevailing party shall, upon demand, reimburse the
prevailing party for the prevailing party's attorneys' fees, disbursements and
court costs.
ARTICLE 45.
ANTENNA AND ROOFTOP SPACE
Section 45.01 (a) Landlord agrees that, subject to all Legal
Requirements, the Insurance Requirements, this Lease and the conditions and
limitations hereinafter stipulated, during the Term, Tenant, at its sole cost
and expense, shall have a non-exclusive license to install in a location on a
portion of the rooftop of the Building to be designated by Landlord in its sole
and absolute discretion (the "Antenna Area") and thereafter maintain, repair,
operate and replace one satellite antenna (the "antenna") provided (i) the
antenna shall not exceed 3 feet in height by 3 feet in length, by 3 feet in
width or, if applicable, 3 feet in diameter; (ii) the size and dimensions of the
antenna and any reasonably required support structures and associated
maintenance access structures shall be subject to Landlord's prior written
consent in Landlord's sole discretion; (iii) such antenna installation and
position of such antenna and reasonably required support structures and
associated maintenance access structures shall comply with all Legal
Requirements; (iv) the installation of any electrical or communications lines
("Wiring") and related equipment in connection with the installation and
operation of the antenna, (including, without limitation, the location and the
routing of all Wiring and related equipment in connection therewith) shall (A)
be at Tenant's sole cost and expense, (B) be subject to Landlord's prior written
consent, in Landlord's sole discretion and in accordance with the provisions of
Article 10, and (C) comply with Legal Requirements and Insurance Requirements;
and (v) the antenna, reasonably required support structures, maintenance access
structures, Wiring and related equipment shall be installed, maintained and kept
in repair by Tenant, at Tenant's sole cost and expense. Tenant shall be
responsible for the payments of any fees and taxes which may be imposed by any
governmental agency in connection with the installation and use of such antenna.
(b) The parties agree that Tenant's use of the rooftop of the Building,
is a non-exclusive use and Landlord may permit the use of any other portion of
the roof to any other person, firm or corporation for any use including the
installation of other antennas, rooftop equipment, wiring and support equipment
provided the same do not unreasonably interfere with Tenant's installations on
the roof or reception or transmission of signals.
(c) For the purpose of installing, servicing or repairing the antenna,
Wiring and related equipment, Tenant shall have access to the rooftop of the
Building at all reasonable times upon reasonable advance notice, subject to
Landlord's reasonable safeguards for the security and protection of the
Building, the Building Equipment and installations and equipment of other
tenants or occupants of the Building as may be located on the roof of the
Building. Landlord shall have the right, at Tenant's expense, to assign a
representative to be present during the duration of Tenant's access to the
rooftop.
(d) Without limiting Landlord's obligations under this Lease, Tenant,
at Tenant's sole cost and expense, agrees to promptly and faithfully obey,
observe and comply with all Legal Requirements, Insurance Requirements and this
Lease in any manner affecting or relating to Tenant's use of said roof, and the
installation, repair, maintenance and operation of the antenna, Wiring and
related equipment erected or installed by Tenant pursuant to the provisions of
this Section 45.01. Tenant, at Tenant's sole cost and expense, shall secure and
thereafter maintain all permits and licenses required for the installation and
operation of the antenna, and any support structures and related equipment
erected or installed by Tenant, including, without limitation, any approval,
license or permit required from the Federal Communications Commission or
otherwise pursuant to Legal Requirements. Landlord shall, at no cost to it,
reasonably cooperate (which shall include executing and delivering all necessary
and proper filings with governmental or quasi-governmental entities) with Tenant
in obtaining such approvals, licenses and permits.
(e) Tenant agrees that Tenant will pay for all electrical service
required for Tenant's use of the antenna, and related equipment erected or
installed by Tenant and Tenant further agrees that such electric service shall
feed off the supply of electrical energy furnished to the Premises as provided
in this Lease.
(f) The antenna, support structures, Wiring and related equipment
installed by Tenant, pursuant to the provisions of Section 45.01 shall be
Tenant's personal property, and, upon the expiration of the term of this Lease,
or upon its earlier termination in any manner, shall be removable by Tenant at
Tenant's sole cost and expense. Tenant, at Tenant's sole cost and expense, shall
promptly repair any and all damage to the rooftop of the Building and to any
other part of the Building caused by or resulting from the installation,
maintenance and repair, operation or removal of the antenna, support structures,
Wiring and related equipment erected or installed by Tenant and restore said
affected areas to their condition as existed prior to the installation of the
antenna, and related equipment, ordinary wear and tear and casualty excepted.
(g) Tenant's antenna, Wiring and related equipment shall not interfere
with (i) Building Equipment or other installations located on the roof, (ii)
other portions of the Building, (iii) other tenant's in the Building (including,
without limitation, any occupants of the penthouses, and/or (iv) the reception
and transmission of communications signals by other tenants.
(h) Landlord shall have the right at its sole and absolute discretion,
upon not less than fifteen (15) days prior written notice to Tenant, to relocate
the antenna (and all Wiring and other equipment related thereto), to any
reasonably comparable space on the rooftop of the Building. Tenant shall
reimburse Landlord for all actual, reasonable costs and expenses incurred by
Landlord in connection with any such relocation.
-42-
<PAGE> 45
(i) Tenant hereby indemnifies Landlord against liability in connection
with or arising from the installation, maintenance, use and operation of the
antenna. The foregoing indemnification is in addition to, and not in lieu of,
the obligations of Tenant under Section 19.03.
ARTICLE 46.
HISTORIC TAX CREDITS/IDA TRANSACTION
Section 46.01 Landlord has advised Tenant that Landlord has made an
application with the National Park Service through the New York State Historical
Preservation Office (the "Historical Preservation Office") for certain tax
credits in connection with the performance of alterations to the Building. In
order to receive such tax credits Landlord is required to furnish the Historical
Preservation Office with evidence of all sums expended in performing any
Improvements to the Building (including any work performed by Tenant). Upon
written request by Landlord, Tenant (at no cost or expense to it) agrees, within
fifteen (15) days after receipt of such request, to promptly deliver to Landlord
such bills, receipts, invoices, records and other documents related to any
Improvements performed by Tenant in the Building.
Section 46.02 Landlord hereby acknowledges and agrees that Tenant is
entering into an arrangement with agencies of the City and State of New York,
including, without limitation, the New York City Economic Development
Corporation and/or the IDA (such City or State agencies are referred to herein,
collectively, as the "Agency") pursuant to which Tenant will be receiving
various benefits including, without limitation, relief from sales and use tax in
connection with the purchase of equipment, machinery, trade fixtures and other
similar items for use in the Premises and the electric benefits provided for in
Section 12.07 hereof. Landlord hereby agrees to reasonably cooperate with
Tenant, at Tenant's expense, including, without limitation, by promptly
executing and delivering, upon request of Tenant, such applications, documents
or instrument as are reasonably required by Tenant in connection with any such
benefits. Tenant hereby indemnifies and agrees to hold Landlord harmless against
any and all liability, loss, damage, cost and expense (including reasonable
attorneys' fees and disbursements) incurred in connection with or arising from
Landlord's execution and delivery of such applications, documents or instruments
under this Section 46.02.
ARTICLE 47.
DEFINITIONS; CONSTRUCTION OF TERMS
Section 47.01 For the purposes of this Lease and all agreements
supplemental to this Lease:
(a) "AAA" shall have the meaning given in Section 42.01(c)(i).
(b) "Additional Rent" shall have the meaning given in Section
3.01(a)(v).
(c) "Affiliate" shall have the meaning given in Section 21.11(a)/
(d) "antenna" shall have the meaning given in Section 45.01(a).
(e) "Antenna Area" shall have the meaning given in Section 45.01(a).
(f) "Appraisers" shall have the meaning given in Section
42.01(c)(ii).
(g) "Arbitrator" shall have the meaning given in Section
42.01(c)(ii).
(h) "Bankruptcy Code" shall mean the United States Bankruptcy Code
(11 U.S.C. Section 101 et seq., as amended).
(i) "Basic Construction of the Premises" shall mean the structural
steel and masonry walls, the floor slabs, the structural ceilings and demising
walls of the Premises and the Building Equipment up to the point of connection
to the Premises.
(j) "Base Tax Year" shall have the meaning given in Section
7.01(a)(ii).
(k) "Building" shall have the meaning given in Section 1.01.
(l) "Building Equipment" shall mean all machinery, apparatus,
equipment, personal property, fixtures and systems of every kind and nature
whatsoever now or hereafter attached to or used in connection with the operation
or maintenance of the Building, including all electrical, heating, mechanical,
sanitary, fire protection, utility, power, plumbing, cleaning, fire prevention,
refrigeration, ventilating, air cooling, air conditioning, elevator and
escalator systems, apparatus and equipment, and any and all renewals and
replacements of any thereof; but excluding, however, (i) Tenant's Property, (ii)
property of any other tenant, (iii) property of contractors servicing the
Building and (iv) improvements for water, gas, steam and electricity and other
similar equipment owned by any public utility company or any governmental agency
or body.
(m) "Commencement Date" shall have the meaning given in Section
2.01(a).
(n) "Control" shall have the meaning given in Section 21.11(b).
(o) "Estimated Tax Payment" shall have the meaning given in Section
7.01(c).
(p) "Expiration Date" shall have the meaning given in Section
2.01(a).
-43-
<PAGE> 46
(q) "Extension Notice" shall have the meaning given in Section
42.01(a).
(r) "Extension Notice Date" shall have the meaning given in Section
42.01(a).
(s) "Extension Option" shall have the meaning given in Section
42.01(a).
(t) "Extension Option Termination Notice" shall have the meaning
given in Section 42.03.
(u) "Extension Term" shall have the meaning given in Section
42.01(a).
(v) "Extension Term Commencement Date" shall have the meaning given
in Section 42.01(a).
(w) "Fair Market Value Rent" shall have the meaning given in Section
42.01(c).
(x) "Fee Mortgage" shall mean, collectively, any mortgage which does
not constitute a Superior Mortgage and which encumbers the Land and all
renewals, modifications, replacements, substitutions, supplements, extensions,
spreaders, and consolidation thereof.
(y) "Fee Mortgagee" shall mean, collectively, all holders at the
time of the Fee Mortgage.
(z) "First Additional Commencement Date" shall have the meaning
given in Section 2.01(b).
(aa) "First Additional Premises" shall have the meaning given in
Section 1.01(b)
(bb) "Fixed Rent" shall have the meaning given in Section 3.01(a).
(cc) "Fixtures" shall have the meaning given in Section 10.07.
(dd) "Force Majeure" shall mean any and all causes beyond Landlord's
or Tenant's reasonable control, including delays caused by Tenant or Landlord,
as the case may be, other tenants, governmental restriction, regulation or
control, labor dispute, strike, accident, mechanical breakdown, shortages or
inability to obtain labor, fuel, steam, water, electricity or materials, acts of
God, enemy action, civil commotion, fire or other casualty. As a condition to
any claim of Force Majeure by a party, the party claiming Force Majeure shall be
required to send the other party a written notice describing in reasonable
detail the nature of the Force Majeure event within fifteen (15) days after
actual knowledge of the occurrence of such event.
(ee) "Guarantor" shall mean any person(s) who guarantees any or all
of Tenant's obligations under this Lease.
(ff) "Hazardous Substance" shall have the meaning given in Section
41.02.
(gg) "Improvements" shall mean improvements made by or on behalf of
Tenant or any person claiming through or under Tenant.
(hh) "improvements" shall mean improvements, alterations, additions,
substitutions, betterments and decorations.
(ii) "Initial Premises" shall have the meaning given in Section
1.02(a).
(jj) "Insurance Requirements" shall mean all requirements of any
insurance policy covering or applicable to all or any part of the Real Property
or the Premises or the use thereof, all requirements of the issuer of any such
policy and all orders, rules, regulations, recommendations and other
requirements of the New York Board of Fire Underwriters or the Insurance Service
Office or any other body exercising the same or similar functions and having
jurisdiction or cognizance of all or any part of the Real Property or the
Premises.
(kk) "Interest Rate" shall mean a rate per annum equal to the lesser
of (a) 2% above the prime rate in effect from time to time (but in no event less
than 13% per annum) or (b) the maximum applicable legal rate, if any.
(ll) "Issuing Bank" shall have the meaning given in Section 35.02.
(mm) "Land" shall have the meaning given in Section 1.01.
(nn) "Landlord" shall have the meaning given in Section 40.02.
(oo) "Landlord's Appraiser" shall have the meaning given in Section
42.01(c)(i).
(pp) "Landlord's Appraiser's Rent Submission" shall have the meaning
given in Section 42.01(c)(iii).
(qq) "Landlord's Repairs" shall have the meaning given in Section
14.02(a).
(rr) "Landlord's Work" shall have the meaning given in Exhibit C.
(ss) "Legal Requirements" shall mean laws, statutes and ordinances
(including building codes and zoning regulations and ordinances) and the orders,
rules, regulations, directives and requirements of all federal, state, county,
city and borough departments, bureaus, boards, agencies, offices, commissions
and other subdivisions thereof, or of any official thereof, or of
-44-
<PAGE> 47
any other governmental, public or quasi-public authority, whether now or
hereafter in force, which may be applicable to the Real Property or the Premises
or any part thereof or the sidewalks, curbs or areas adjacent thereto, and all
requirements, obligations and conditions of all instruments of record on the
date of this Lease.
(tt) "Letter of Credit" shall have the meaning given in Section
35.02.
(uu) "Net Rent" shall have the meaning given in Section 17.04(c).
(vv) "Non-Renewal Notice" shall have the meaning given in Section
35.02.
(ww) "Operating Expense Payment" shall have the meaning given in
Section 7.02.
(xx) "Partnership Tenant" shall have the meaning given in Section
44.06.
(yy) "Permitted Capacity" shall have the meaning given in Section
12.01(b).
(zz) "Pre-Determination Period" shall have the meaning given in
Section 42.01(c)(vi).
(aaa) "Premises" shall have the meaning given in Section 1.01.
(bbb) "prime rate" shall mean the annual rate of interest from time
to time publicly announced by The Chase Manhattan Bank, N.A., as its prime
lending rate.
(ccc) "Punch List Items" shall have the meaning given in Section
3.03(a).
(ddd) "Real Property" shall mean the Building and the Land and all
easements, air rights, development rights and other appurtenances thereto.
(eee) "Reduced Security" shall have the meaning given in Section
35.05.
(fff) "Rent" shall have the meaning given in Section 4.01(b).
(ggg) "Repair Period" shall have the meaning given in Section
14.02(a).
(hhh) "Rules and Regulations" shall have the meaning given in
Section 29.01.
(iii) "Second Additional Premises Commencement Date" shall have the
meaning given in Section 2.01(c).
(jjj) "Second Additional Premises" shall have the meaning given in
Section 1.01(c).
(kkk) "Security Deposit" shall have the meaning given in Section
35.01.
(lll) "Service Area" shall have the meaning given in Section
12.01(b).
(mmm) "Substantially Repaired" shall have the meaning given in
Section 14.01.
(nnn) "Successor Landlord" shall have the meaning given in Section
22.04.
(ooo) "Superior Lease" shall have the meaning given in Section
22.01.
(ppp) "Superior Lessor" shall mean, collectively, all lessors at the
time of the Superior Lease.
(qqq) "Superior Mortgage" shall have the meaning given in Section
22.01.
(rrr) "Superior Mortgagee" shall mean, collectively, all holders at
the time of the Superior Mortgage.
(sss) "Tax Estimate" shall have the meaning given in Section
7.01(b).
(ttt) "Tax Statement" shall have the meaning given in Section
7.01(c).
(uuu) "Tax Year" shall have the meaning given in Section
7.01(a)(iii).
(vvv) "Taxes" shall have the meaning given in Section 7.01(a)(i).
(www) "Tenant" shall have the meaning given in Section 40.03.
(xxx) "Tenant's Appraiser" shall have the meaning given in Section
42.01(c).
(yyy) "Tenant's Appraiser's Rent Submission" shall have the meaning
given in Section 42.01(c)(iii).
(zzz) "Tenant's Property" shall mean all fixtures, improvements and
other property (including, without limitations, computers and peripherals,
personal computers, telecommunications equipment, business machines and
software, together with all repairs, replacements, improvements, substitutions
and renewals thereof or therefor, and parts, additions and accessories
-45-
<PAGE> 48
incorporated therein or official thereto), (i) installed at the sole expense of
Tenant, (ii) with respect to which Tenant has not been granted any credit or
allowance by Landlord, (iii) which are removable without material damage to the
Premises and (iv) which are not replacements of any property of Landlord,
whether any such replacement is made at Tenant's expense or otherwise.
(aaaa) "Tenant's Proportionate Share" shall have the meaning given
in Section 7.01(a)(iv).
(bbbb) "Tenant's Work" shall have the meaning given in Exhibit C.
(cccc) "Term" shall have the meaning given in Section 2.01(a).
(dddd) "Third Additional Premises Commencement Date" shall have the
meaning given in Section 2.01(d).
(eeee) "Third Additional Premises" shall have the meaning given in
Section 1.01(d).
(ffff) "Untenantable" shall mean the extent to which Tenant is
actually unable to use any or all of the Premises in the normal course of its
business.
(gggg) "Wiring" shall have the meaning given in Section 45.01(a).
(hhhh) "Work Letter" shall have the meaning given in Section 3.01.
Section 47.02 (a) If any of the provisions of this Lease, or the
application thereof to any person or circumstance, 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.
(b) If any term of this Lease is found invalid or unenforceable to any
extent by a final judgment or award which shall not be subject to change by
appeal, then either party may initiate an arbitration in accordance with the
provisions of Article 27. Said arbitrators shall devise a valid and enforceable
substitute term for this Lease which shall as nearly as possible carry out the
intention of the parties with respect to the term of this Lease found invalid or
unenforceable. Such substitute term as so devised shall thereupon be deemed a
part of this Lease.
Section 47.03 For the purposes of this Lease and all agreements
supplemental to this Lease, unless the context otherwise requires:
(a) The terms "include", "including" and "such as" shall be construed
as if followed by the phrase "without being limited to". The words "herein",
"hereof', "hereby", "hereunder" and words of similar import shall be construed
to refer to this Lease as a whole and not to any particular Article or Section
unless expressly so stated.
(b) The term "obligations of this Lease" and words of like import,
shall mean the covenants to pay rent and all of the other terms of this Lease.
Any provision in this Lease that one party or the other or both shall do or not
do or shall cause or permit or not cause or permit a particular act, condition
or circumstance shall be deemed to mean that such party so covenants or both
parties so covenant, as the case may be.
(c) The term "Tenant's obligations hereunder", and words of like
import, and the term "Landlord's obligations hereunder", and words of like
import, shall mean the obligations of this Lease which are to be performed or
observed by Tenant, or by Landlord, as the case may be. Reference to
"Performance" of either party's obligations and words of like import shall be
construed as "performance and observance". Tenant's obligations hereunder shall
be construed in every instance as conditions as well as covenants.
(d) Reference to Tenant being "in default hereunder", or words of like
import, shall mean that Tenant is in default in the performance of one or more
of Tenant's obligations hereunder.
(e) Reference to Landlord as having "no liability to Tenant" or being
"without liability to Tenant", shall mean that Tenant is not entitled to
terminate this Lease, or to claim actual or constructive eviction, partial or
total, or to receive any abatement or diminution of rent, or to be relieved in
any manner of any of its other obligations hereunder, or to be compensated for
loss or injury suffered or to enforce any other right or kind of liability
whatsoever against Landlord under or with respect to this Lease or with respect
to Tenant's use or occupancy of the Premises.
(f) The term "repair" shall be deemed to include restoration,
rebuilding and replacement as may be necessary to achieve and maintain good
working order and condition.
(g) Reference to "termination of this Lease" and words of like import
includes expiration or sooner termination of this Lease and the Term and the
estate hereby granted or cancellation of this Lease pursuant to any of the
provisions of this Lease or to law. Upon the termination of this Lease, the Term
and estate granted by this Lease shall end at noon of the date of termination as
if such date were the Expiration Date and neither party shall have any further
obligation or liability to the other after such termination except (i) as shall
be expressly provided for in this Lease, and (ii) for such obligations as by
their nature or under the circumstances can only be, or by the provisions of
this Lease, may be, performed after such termination, and, in any event, unless
expressly otherwise provided in this Lease, any liability for a payment or
refund (which shall be apportioned as of such termination) which shall have
accrued to or with respect to any period ending at the time of termination shall
survive the termination of this Lease.
-46-
<PAGE> 49
(h) The term "the terms of this Lease" or "the terms of this Article"
shall be deemed to include all terms, covenants, conditions, provisions,
obligations, limitations, restrictions, reservations and agreements of this
Lease or such Article, as the case may be.
(i) The term "right" shall be deemed to include rights, remedies,
powers and privileges.
(j) The term "rent" or "rents" shall be deemed to mean Fixed Rent and
Additional Rent.
(k) The term "Landlord's agents" shall be deemed to include all agents,
contractors, and employees of Landlord.
(l) The term "Person" or "person" shall be deemed to include
individuals, corporations, partnerships, firms, associations and any other legal
entities.
(m) The term "tenant" shall be deemed to include any and all occupants
of the Building.
(n) approval and the consent by either party to any particular action
shall not in any way be considered as relieving the other party from obtaining
the express consent to any subsequent or further action.
(o) The words "Tenant hereby indemnifies Landlord against liability"
and words of similar import shall mean that Tenant hereby agrees to and hereby
does indemnify, hold and save Landlord and Landlord's agents, employees,
contractors, officers, directors, shareholders, partners and principals
(disclosed or undisclosed) harmless from and against any and all cost,
liability, claim, damage, fine, penalty and expense, including reasonable
attorneys' fees and disbursements, but the same shall not be construed as
indemnifying any of the foregoing named persons against its own negligence or
willful misconduct.
(p) Words and phrases used in the singular shall be deemed to include
the plural and vice versa, and nouns and pronouns used in any particular gender
shall be deemed to include any other gender.
(q) The rule of "ejusdem generis" shall not be applicable to limit a
general statement following or referable to an enumeration of specific matters
to matters similar to the matters specifically mentioned.
(r) All references in this Lease to numbered or lettered Articles,
Sections, Subsections, Subdivisions and Exhibits are references to Articles,
Sections, Subsections and Subdivisions of this Lease, and Exhibits annexed to
(and thereby made part of) this Lease, as the case may be, unless the context
clearly indicates the contrary.
(s) Each term, covenant, agreement, obligation or other provision of
this Lease on Tenant's part to be performed shall be deemed and construed as a
separate and independent covenant of Tenant, not dependent upon any of the other
terms of this Lease. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted. In the event of any action, suit, arbitration, dispute or
proceeding affecting the terms of this Lease, no weight shall be given to any
deletions or striking out of any of the terms of this Lease contained in any
draft of this Lease and no such deletion or strike out shall be entered into
evidence in any such action, suit, arbitration, dispute or proceeding nor given
any weight therein.
Section 47.04 The various terms which are 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 clearly
indicates the contrary.
Section 47.05 The Article headings in this Lease and the Table of
Contents to this Lease are inserted only as a matter of convenience or
reference, and are not to be given any effect in construing this Lease.
IN WITNESS WHEREOF Landlord and Tenant have duly executed this Lease as
of the day and year first above written.
<TABLE>
<S> <C>
WITNESS WXII/GDM ASTOR, L.L.C.
By: GDM 124 HUDSON DEVELOPMENT LLC,
MEMBER
By:
- ---------------------------------------- -----------------------------------------
Name:
Title:
WITNESS JUPITER COMMUNICATIONS, INC.
By:
- ---------------------------------------- -----------------------------------------
Name:
Title:
</TABLE>
-47-
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-END> MAR-31-2000
<CASH> 48,929,611
<SECURITIES> 18,556,877
<RECEIVABLES> 20,988,519
<ALLOWANCES> 149,102
<INVENTORY> 0
<CURRENT-ASSETS> 96,085,902
<PP&E> 8,273,708
<DEPRECIATION> 1,139,281
<TOTAL-ASSETS> 129,291,697
<CURRENT-LIABILITIES> 45,264,227
<BONDS> 0
0
0
<COMMON> 15,083
<OTHER-SE> 83,863,588
<TOTAL-LIABILITY-AND-EQUITY> 129,291,697
<SALES> 17,159,700
<TOTAL-REVENUES> 17,159,700
<CGS> 6,664,417
<TOTAL-COSTS> 17,933,813
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 56,732
<INCOME-PRETAX> 6,029,282
<INCOME-TAX> 2,835,041
<INCOME-CONTINUING> 3,194,241
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,194,241
<EPS-BASIC> 0.22
<EPS-DILUTED> 0.20
</TABLE>
