AGREEMENT OF LEASE
DATED AS OF JANUARY 26, 1999
BETWEEN
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,
AS OWNER OR LANDLORD
AND
DOUBLECLICK INC.
AS TENANT
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TABLE OF CONTENTS
Page
Preamble A
Article 1 - Rent A
Article 2 - Occupancy A
Article 3 - Tenant Alterations A
Article 4 - Maintenance and Repairs A
Article 5 - Window Cleaning A
Article 6 - Requirements of Law, Fire Insurance, Floor Loads A
Article 7 - Subordination B
Article 8 - Property Loss, Damage Reimbursement Indemnity B
Article 9 - Destruction, Fire and Other Casualty B
Article 10 - Eminent Domain B
Article 11 - Assignment, Mortgage, Etc. B
Article 12 - Electric Current B
Article 13 - Access to Premises B
Article 14 - Vault, Vault Space, Area C
Article 15 - Occupancy C
Article 16 - Bankruptcy C
Article 17 - Default C
Article 18 - Remedies of Owner and Waiver of Redemption C
Article 19 - Fees and Expenses C
Article 20 - Building Alterations and Management C
Article 21 - No Representations by Owner C
Article 22 - End of Term D
Article 23 - Quiet Enjoyment D
Article 24 - Failure to Give Possession D
Article 25 - No Waiver D
Article 26 - Waiver of Trial by Jury D
Article 27 - Inability to Perform D
Article 28 - Bills and Notices D
Article 29 - Services Provided by Owners D
Article 30 - Captions D
Article 31 - Definitions D
Article 32 - Adjacent Excavation-Shoring D
Article 33 - Rules and Regulations D
Article 34 - Security E
Article 35 - Estoppel Certificate E
Article 36 - Successors and Assigns E Rules and Regulations F Text to Numbered
Insertions T-1
Article 37 - Provisions of Rider R-1
Article 38 - Rental R-1
Article 39 - Electricity and Steam R-2
Article 40 - [Intentionally Omitted]R-6
Article 41 - Condition Of Premises R-6
Article 42 - Adjustment Of Rents for Changes In Real Estate Taxes R-7
Article 43 - Additional Rental For Operating Expenses R-9
Article 44 - Tenant's Initial Work And Landlord's Work Contribution R-13
Article 45 - Tenant's Changes R-17
Article 46 - Broker R-20
Article 47 - Exculpatory Clause R-21
Article 48 - Indemnity - Liability Insurance R-21
Article 49 - Certificates R-23
Article 50 - Holding Over By Tenant R-23
Article 51 - Lease Not Binding Unless Executed And Delivered R-23
Article 52 - Assignment and Subletting R-23
Article 53 - Tenant's Option To Renew R-31
Article 54 - Tenant's Additional Covenants R-33
Article 55 - Special Restrictions R-36
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Article 56 - Miscellaneous R-37
Article 57 - Subordination R-40
Article 58 - Security R-41
Article 59 - The Roof/Set-Back Area R-43
Exhibit A-1 - Diagram of Sixteenth Floor
Exhibit A-2 - Diagram of Loading Bay #21 and Freight Elevator #F-8
Exhibit A-3 - Diagram of Roof/Set-Back Area
Exhibit A-4 - Diagram of Second Roof/Set-Back Area
Exhibit B - Description of Land
Exhibit C - Copy of Certificate of Occupancy
Exhibit D - Table of Rental Terms (Referenced in Article 52)
Exhibit E - Business Incentive Rate Application (Riders F & J)
Exhibit F - Form of Subordination, Non-Disturbance And Attornment Agreement
Exhibit G - Tenant's Rendering of Roof/Set-Back Area
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STANDARD FORM OF OFFICE LEASE
The Real Estate Board of New York, Inc.
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AGREEMENT OF LEASE, made as of this 26th day of January, 1999, between JOHN
HANCOCK MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation, having an
office at John Hancock Place, P.O. Box 111, Boston, Massachusetts 02117, party
of the first part, hereinafter referred to as OWNER or LANDLORD, and DOUBLECLICK
INC., a Delaware corporation having its place of business at 41 Madison Avenue,
New York, New York 10010, party of the second part, hereinafter referred to as
TENANT.
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from Owner (i)
the space on the sixteenth (16th) floor, as cross-hatched on the diagram annexed
hereto as Exhibit A-1 ("Interior Demised Area"), (ii) loading bay # 21 and
freight elevator #F-8, as cross-hatched on the diagram annexed hereto as Exhibit
A-2 and (iii) the area on the east and west sides of the rooftop/setback outside
the windowed portions of the area described in "(i)" above, as cross-hatched on
the diagram annexed hereto as Exhibit A-3 (the "Roof/Set-Back Area")
(collectively, the "demised premises"), in the building known as 450 West 33rd
Street (the "building") and situate on the land described on Exhibit B annexed
hereto in the Borough of Manhattan, City of New York, for the term of eleven
(11) years (or until such term shall sooner cease and expire as hereinafter
provided), to commence and expire as provided in Article 38 hereof, at an annual
rental as provided in Article 38 hereof, which Tenant agrees to pay in lawful
money of the United States which shall be legal tender in payment of all debts
and dues, public or private, at the time of payment, in equal monthly
installments in advance on the first day of each month during said term, at the
office of Owner or such other place as Owner may designate, without any set off
or deduction whatsoever, except as otherwise expressly set forth herein and
except that (i) if the Rent Commencement Date (as such term is defined in
Article 38 hereof) shall not occur on the first day of a month, the prorated
portion of the fixed rent for such month shall be due and payable on the Rent
Commencement Date and (ii) on the execution hereof, Tenant shall pay the first
monthly installment of fixed rent for (a) the month immediately subsequent to
the month in which the Rent Commencement Date shall occur if such Rent
Commencement Date shall not occur on the first day of a month or (b) the month
in which the Rent Commencement Date shall occur if such Rent Commencement Date
shall occur on the first day of a month.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
RENT: 1. Tenant shall pay the rent as above and as hereinafter provided.
OCCUPANCY: 2. Tenant shall use and occupy the demised premises for any legal
use (provided that the Roof/Set-Back Area may be used only for(U1) subject to
the terms and conditions set forth in this lease, including without
limitation Article 54 hereof, and Tenant may not use the demised premises for
any other purpose. Tenant shall at all times conduct its business in a
reputable manner, shall not violate Article 55 hereof, and shall keep the
demised premises in a neat and clean condition. No part of the demised
premises shall be used in violation of the certificate of occupancy of the
building, a copy of which is annexed hereto as Exhibit C.(U1a) No part of the
demised premises shall be used for cooking or as a restaurant or for the sale
of food or contrary to any of the other terms and conditions of this
lease,(U2)
TENANT 3. Tenant shall make no changes in or to the demised premises of
ALTERATIONS: any nature without Owner's prior written consent. Subject to the
prior written consent of Owner, and to the provisions of this article, Tenant,
at Tenant's expense, may make alterations, installations, additions or
improvements which are non-structural and which do not1 affect utility services
or plumbing and electrical lines, in or to the interior of the demised premises
by using contractors or mechanics first approved in each instance by Owner.
Tenant shall, before making any alterations, additions, installations or
improvements, at its expense, obtain all permits, approvals and certificates
required by any governmental or quasi-governmental bodies and (upon completion)
certificates of final approval thereof and shall deliver promptly duplicates of
all such permits, approvals and certificates to Owner and Tenant agrees to carry
and will cause Tenant's contractors and sub-contractors to carry such workman's
compensation, general liability,
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personal and property damage insurance as Owner may require. If any mechanic's
lien is filed against the demised premises, or the building of which the same
forms a part, for work claimed to have been done for, or materials furnished to,
Tenant, whether or not done pursuant to this article, the same shall be
discharged by Tenant within thirty days thereafter, at Tenant's expense, by
payment or filing the bond required by law. All fixtures and all paneling,
partitions, railings and like installations, installed in the premises at any
time, either by Tenant or by Owner on Tenant's behalf, shall, upon installation,
become the property of Owner and shall remain upon and be surrendered with the
demised premises unless Owner, by notice to Tenant no later than twenty days
prior to the date fixed as the termination of this lease, elects to relinquish
Owner's personal and property damage insurance as Owner may require. If any
mechanic's lien is filed against the demised premises, or the building of which
the same forms a part, for work claimed to have been done for, or materials
furnished to, Tenant, whether or not done pursuant to this article, the same
shall be discharged by Tenant within thirty days thereafter, at Tenant's
expense, by payment or filing the bond required by law. All fixtures and all
paneling, partitions, railings and like installations, installed in the premises
at any time, either by Tenant or by Owner on Tenant's behalf, shall, upon
installation, become the property of Owner and shall remain upon and be
surrendered with the demised premises unless Owner, by notice to Tenant no later
than twenty days prior to the date fixed as the termination of this lease,
elects to relinquish Owner's right thereto and to have them removed by Tenant,
in which event the same shall be removed from the premises by Tenant prior to
the expiration of the lease, at Tenant's expense. Nothing in this Article shall
be construed to give Owner title to or to prevent Tenant's removal of trade
fixtures, moveable office furniture and equipment, but upon removal of any such
from the premises or upon removal of other installations as may be required by
Owner, Tenant shall immediately and at its expense, repair and restore the
premises to the condition existing prior to installation and repair any damage
to the demised premises or the building due to such removal. All property
permitted or required to be removed, by Tenant at the end of the term remaining
in the premises after Tenant's removal shall be deemed abandoned and may, at the
election of owner, either be retained as Owner's property or may be removed from
the premises by Owner, at Tenant's expense.
MAINTENANCE 4. Tenant shall, throughout the term of this lease, take good
AND REPAIRS: care of the demised premises and the fixtures and appurtenances
therein.* Tenant shall be responsible for all damage or injury to the demised
premises or any other part of the building and the systems and equipment
thereof, whether requiring structural or nonstructural repairs caused by or
resulting from carelessness, neglect or improper conduct of Tenant, Tenant's
subtenants, agents, employees, invitees or licensees, or which arise out of
any work, labor, service or equipment done for or supplied to Tenant or any
subtenant or arising out of the installation, use or operation of the
property or equipment of Tenant or any subtenant.(2) Tenant shall also repair
all damage to the building and the demised premises caused by the moving of
Tenant's fixtures, furniture and equipment.(3) Tenant shall promptly make, at
Tenant's expense, all repairs in and to the demised premises for which Tenant
is responsible.(4) Any other repairs in or to the building or the facilities
and systems thereof for which Tenant is responsible shall be performed by
Owner at the Tenant's expense. Owner shall maintain in good working order and
repair the exterior and the structural portions of the building, including
the structural portions of its demised premises, and the public portions of
the building interior and the building plumbing, electrical, heating and
ventilating systems (to the extent such systems presently exist) not
exclusively serving the demised premises. Tenant agrees to give prompt notice
of any defective condition in the premises for which Owner may be responsible
hereunder. There shall be no allowance to Tenant for diminution of rental
value and no liability on the part of Owner by reason of inconvenience,
annoyance or injury to business arising from Owner or others making repairs,
alterations, additions or improvements in or to any portion of the building
or the demised premises or in and to the fixtures, appurtenances or equipment
thereof.(5) It is specifically agreed that Tenant shall not be entitled to any
setoff or reduction of rent by reason of any failure of
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* and all lobby areas exclusively serving the demised premises and, at
Tenant's sole cost and expense, make all non-structural repairs thereto as and
when needed to preserve them in good working order and condition including, but
not limited to, repairs, maintenance and cleaning with respect to the heating,
plumbing, sprinkler, air conditioning, ventilating and electrical systems
exclusively serving the demised premises, reasonable wear and tear, obsolescence
and damage from the elements, fire or other casualty excepted
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Owner to comply with the covenants of this or any other article of this
Lease.(6) Tenant agrees that Tenant's sole remedy at law in such instance
will be by way of an action for damages for breach of contract. The
provisions of this Article 4 shall not apply in the case of fire or other
casualty which are dealt with in Article 9 hereof.
WINDOW 5. Tenant will not clean nor require, permit, suffer or allow any
CLEANING: window in the demised premises to be cleaned from the outside in
violation of Section 202 of the Labor Law or any other applicable law or of the
Rules of the Board of Standards and Appeals, or of any other Board or body
having or asserting jurisdiction.
REQUIREMENTS 6. Prior to the commencement of the lease term, if Tenant is OF
LAW, FIRE then in possession, and at all times thereafter, Tenant, at
INSURANCE, Tenant's sole cost and expense, shall promptly comply with all
FLOOR LOADS present and future laws, orders and regulations of all state,
federal, municipal and local governments, departments, commissions and boards
and any direction of any public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters, Insurance
Services Office, or any similar body which shall impose any violation, order
or duty upon Owner or Tenant with respect to the building if arising out of
Tenant's use or manner of use of the premises or the building (including the
use permitted under the lease). Nothing herein shall require Tenant to make
structural repairs or alterations unless Tenant has, by its(7) manner of use
of the demised premises or method of operation therein, violated any such
laws, ordinances, orders, rules, regulations or requirements with respect
thereto. Tenant may, after securing Owner to Owner's satisfaction against all
damages, interest, penalties and expenses, including, but not limited to,
reasonable attorney's fees, by cash deposit or by surety bond in an amount
and in a company satisfactory to Owner, context and appeal any such laws,
ordinances, orders, rules, regulations or requirements provided same is done
with all reasonable promptness and provided such appeal shall not subject
Owner to prosecution for a criminal offense or constitute a default under any
lease or mortgage under which owner may be obligated, or cause the demised
premises or any part hereof to be condemned or vacated. Tenant shall not do
or permit any act or thing to be done in or to the demised premises which is
contrary to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by or for
the benefit of Owner with respect to the demised premises or the building of
which the demised premises form a part(8) or which shall or might subject
Owner to any liability or responsibility to any person or for property
damage. Tenant shall not keep anything in the demised premises except as now
or hereafter permitted by the Fire Department, Board of Fire Underwriters,
Fire Insurance Rating Organization or other authority having jurisdiction,
and then only in such manner and such quantity so as not to increase the rate
for fire insurance applicable to the building, nor use the premises in a
manner which will increase the insurance rate for the building or any
property located therein over that in effect prior to the commencement of
Tenant's occupancy. Tenant shall pay all costs, expenses, fines, penalties,
or damages, which may be imposed upon owner by reason of Tenant's failure to
comply with the provisions of this article and if by reason of such failure
the fire insurance rate shall, at the beginning of this lease or at any time
thereafter, be higher than it otherwise would be, then Tenant shall reimburse
Owner, as additional rent hereunder, for that portion of all fire insurance
premiums therafter paid by owner which shall have been charged because of
such failure by Tenant. In any action or proceeding wherein owner and Tenant
are parties, a schedule of "make-up" of rate for the building or demised
premises issued by the New York Fire Insurance Exchange, or other body making
fire insurance rates applicable to said premises shall be conclusive evidence
of the facts therein stated and of the several items and charges in the fire
insurance rates then applicable to said premises. Tenant shall not place a
load upon any floor of the demised premises exceeding the floor load per
square foot area which it was designed to carry and which is allowed by law.*
Owner reseves the right(9) to prescribe the weight and position of all safes,
business machines and mechanical equipment. Such installations shall be
placed and maintained by Tenant, at Tenant's expense, in setting sufficient,
in Owner's judgment, to absorb and prevent vibration, noise and annoyance.(10)
SUBORDINATION: 7. This lease is subject and subordinate to all ground or
underlying leases
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Rider to be added if necessary
* or which it may lawfully carry pursuant to any reinforcement for which
the work was approved by Landlord and performed by Tenant pursuant to the
provisions of this lease.
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and to all mortgages which may now or hereafter affect such leases or the real
property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operating and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall from time to time execute promptly any certificate that Owner may
request.
PROPERTY LOSS, 8. Owner or its agents shall not be liable for any damage to
DAMAGE property of Tenant or of others entrusted to employees of the
REIMBURSEMENT building, nor for loss of or damage to any property of Tenant
INDEMNITY by theft or otherwise, nor for any injury or damage to persons
or property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless
caused by or due to the negligence of Owner, its agents, servants or
employees. Owner or its agents will not be liable for any such damage caused
by other tenants or persons in, upon or about said building or caused by
operations in construction of any private, public or quasi public work. If at
any time any windows of the demised premises are temporarily closed, darkened
or bricked up (or permanently closed, darkened or bricked up, if required by
law) for any reason whatsoever including, but not limited to Owner's own
acts, Owner shall not be liable for any damage Tenant may sustain thereby and
Tenant shall not be entitled to any compensation therefor nor abatement or
diminution of rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction.(11) Tenant shall indemnify and save
harmless Owner against and from all liabilities, obligations, damages,
penalties, claims, costs and expenses for which Owner shall not be reimbursed
by insurance, including reasonable attorneys fees, paid, sub-contractors,
employees, invitees, or licensees, of any covenant or condition of this
lease, or the carelessness, negligence or improper conduct of the Tenant,
Tenant's agents, contractors, employees, invitees or licensees. Tenant's
liability under this lease extends to the acts and omissions of any
sub-tenant, and any agent, contractor, employee, invitee or licensee of any
sub-tenant. In case any action or proceeding is brought against Owner by
reason of any such claim, Tenant, upon written notice from Owner, will at
Tenant's expense, resist or defend such action or proceeding by counsel
approved by Owner in writing, such approval not to be unreasonably withheld.
DESTRUCTION, 9. (a) If the demised premises or any part thereof shall be
FIRE AND damaged by fire or other casualty, Tenant shall give
OTHER immediate notice thereof to Owner and this lease shall
CASUALTY: continue in full force and effect except as hereinafter set
forth. (b) If the demised premises are partially damaged or rendered
partially unusable by fire or other casualty, the damages thereto shall be
repaired by and at the expense of Owner and the rent and other items of
additional rent, until such repair shall be substantially completed, shall be
apportioned from the day following the casualty according to the part of the
premises which is usable. (c) If the demised premises are totally damaged or
rendered wholly unusable by fire or other casualty, then the rent and other
items of additional rent as hereinafter expressly provided shall be
proportionately paid up to the time of the casualty and thenceforth shall
cease until the date when the premises shall have been repaired and restored
by Owner )(or sooner reoccupied in part by Tenant then rent shall be
apportioned as provided in subsection (b) above), subject to Owner's right to
elect not to restore the same as hereinafter provided. (d) If the demised
premises are rendered wholly unusuable(12) or (whether or not the demised
premises are damaged in whole or in part) if the building shall be(13) Owner
shall decide to demolish it or to rebuild it, then, in any of such events,
Owner may elect to terminate this lease by written notice to Tenant, given
within (14), whichever is sooner, specifying a date for the expiration of the
lease, which date shall not be more than 60 days after the giving of such
notice, and upon the date specified in such notice the term of this lease
shall expire as fully and completely as if such date were the date set forth
above for the termination of this lease and Tenant shall forthwith quit,
surrender and vacate the premises without prejudice however, to Landlord's
rights and remedies against Tenant under the lease provisions in effect prior
to such
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termination, and any rent owing shall be paid up to such date and any
payments of rent made by Tenant which were on account of any period subsequent
to such date shall be returned to Tenant.(15) Unless Owner(16) shall serve a
termination notice as provided for herein, Owner shall make the repairs and
restorations under the conditions of (b) and (c) hereof, with all reasonable
expedition, subject to delays due to adjustment of insurance claims, labor
troubles and causes beyond Owner's control. After any such casualty, Tenant
shall cooperate with Owner's restoration by removing from the premises as
promptly as reasonably possible, all of Tenant's salvageable inventory and
moveable equipment, furniture, and other property. Tenant's liability for rent
shall resume five (5) days after written notice from Owner that the premises are
substantially ready for Tenant's occupancy. (e) Nothing contained hereinabove
shall relieve Tenant from liability that may exist as a result of damage from
fire or other casualty. Notwithstanding the foregoing, including Owner's
obligation to restore under subparagraph (b) above, each party shall look first
to any insurance in its favor before making any claim against the other party
for recovery for loss or damage resulting from fire or other casualty, and to
the extent that such insurance is in force and collectible and to the extent
permitted by law, Owner and Tenant each hereby releases and waives all right of
recovery against the other or any one claiming through or under each of them by
way of subrogation or otherwise.(17) The release and waiver herein referred to
shall be deemed to include any loss or damage to the demised premises and/or to
any personal property, equipment, trade fixtures, goods and merchandise located
therein. The foregoing release and waiver shall be in force only if both
releasors' insurance policies contain a clause providing that such a release or
waiver shall not invalidate the insurance. If, and to the extent, that such
waiver can be obtained only b the payment of additional premiums, then the party
benefiting from the waiver shall pay such premium within ten days after written
demand or shall be deemed to have agreed that the party obtaining insurance
coverage shall be free of any further obligation, Tenant acknowledges that Owner
will not carry insurance on Tenant's furniture and/or furnishings or any
fixtures or equipment, improvements, or appurtenances removable by Tenant and
agrees that Owner will not be obligated to repair any damage thereto or replace
the same. (f) Tenant hereby waives the provisions of this article shall govern
and control in lieu thereof.
EMINENT 10. If the whole or substantially all of the demised premises
DOMAIN shall be acquired or condemned by Eminent Domain for any public
or quasi public use or purpose, then and in that event, the term of this
lease shall cease and terminate from the date of title vesting in such
proceeding and Tenant shall have no claim for the value of any unexpired term
of said lease and assigns to Owner, Tenant's entire interest in any such
award.(18) Tenant shall have the right to make an independent claim to the
condemning authority for the value of Tenant's moving expenses and personal
property, trade fixtures and equipment(19) provided Tenant is entitled
pursuant to the terms of the lease to remove such property, trade fixture and
equipment at the end of the term and provided further such claim does not
reduced Owner's award.
ASSIGNMENT, 11. Tenant, for itself, its heirs, distributees, executors,
MORTGAGE, administrators, legal representative, successor and assigns,
ETC.: expressly covenants that it shall not assign, mortgage or
encumber this agreement, nor underlet, or suffer or permit the demised premises
or any part thereof to be used by others, without the prior written consent of
Owner in each instance. Transfer of the majority of the stock of a corporate
Tenant or the majority partnership interest of a partnership Tenant shall be
deemed an assignment. If this lease be assigned, or if the demised premises or
any part thereof be underlet or occupied by anybody other than Tenant, Owner
may, after default by Tenant, collect rent from the assignee, under-tenant or
occupant, and apply the net amount collected to the rent herein reserved, but no
such assignment, underletting, occupancy or collection shall be deemed a waiver
of this covenant, or the acceptance of the assignee, under-tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting.
ELECTRIC 12. Rates and conditions in respect to submetering or rent
CURRENT: inclusion, as the case may be, to be added in RIDER attached
hereto. Tenant covenants
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and agrees that at all times its use of electric current shall not exceed the
capacity of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which, in Owner"
opinion, reasonably exercised, will overload such installations or interfere
with the use thereof by other tenants of the building. The change at any time of
the character of electric service shall in no wise make Owner liable or
responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain.
ACCESS TO 13. Owner or Owner's agents shall have the right (but shall
PREMISES: not be obligated) to enter the demised premises in any
emergency at any time, and, at other reasonable times, to examine the same
and to make such repairs, replacements and improvements as Owner may deem
necessary and reasonably desirable to the demised premises or to any other
portion of the building or which Owner may elect to perform.(20) Tenant shall
permit Owner to use and maintain and replace pipes and conduits in and
through the demised premises and to erect new pipes and conduits therein
provided they are concealed within the walls, floor, or ceiling. Owner may,
during the progress of any work in the demised premises, take all necessary
materials and equipment into said premises without the same constituting an
eviction nor shall the Tenant(21) be entitled to any abatement of rent while
such work is in progress nor to any damages by reason of loss or interruption
of business or otherwise. Throughout the term hereof Owner shall have the
right to enter the demised premises at reasonable hours(22) for the purpose
of showing the same to prospective purchasers or mortgagees of the building,
and during the last six months of the term for the purpose of showing the
same to prospective tenants. If Tenant is not present to open and permit an
entry into the demised premises, Owner or Owner's agents may enter the same
whenever such entry may be necessary or permissible by master key or forcibly
and provided reasonable care is exercised to safeguard Tenant's property,
such entry shall not render Owner or its agents liable therefor, nor in any
event shall the obligations of Tenant hereunder be affected. If during the
last month of the term Tenant shall have removed all or substantially all of
Tenant's property therefrom Owner may immediately enter, alter, renovate or
redecorate the demised premises without limitation or abatement of rent, or
incurring liability to Tenant for any compensation and such act shall have no
effect on this lease or Tenant's obligations hereunder.
VAULT, VAULT 14. No Vaults, vault space or area, whether or not enclosed or
SPACE, AREA: covered, not within the AREA: property line of the building
is leased hereunder, anything contained in or indicated on any sketch, blue
print or plan, or anything contained elsewhere in this lease to the contrary
notwithstanding. Owner makes no representation as to the location of the
property line of the building. All vaults and vault space and all such areas
not within the property line of the building, which Tenant may be permitted
to use and/or occupy, is to be used and/or occupied under a revocable
license, and if any such license be revoked, or if the amount of such space
or area be diminished or required by any federal, state or municipal
authority or public utility. Owner shall not be subject to any liability nor
shall Tenant be entitled to any compensation or diminution or abatement of
rent, nor shall such revocation, diminution or requisition be deemed
constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant.
OCCUPANCY: 15. Tenant will not at any time use or occupy the demised
premises in violation of the certificate of occupancy issued for the building
of which the demised premises are a part. Tenant has inspected the premises and
accepts them as is, subject to the riders annexed hereto with respect to
Owner's work, if any. In any event, Owner makes no representation as to the
condition of the premises and Tenant agrees to accept the same subject to
violations, whether or not of record.
BANKRUPTCY: 16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this
<PAGE>
lease may be cancelled by Owner by sending of a written notice to Tenant within
a reasonable time after the happening of any one or more of the following
events: (1) the commencement of a case in bankruptcy or under the laws of any
state naming Tenant as the debtor; or (2) the making by Tenant of an assignment
or any other arrangement for the benefit of creditors under any state statute.
Neither Tenant nor any person claiming through or under Tenant, or by reason of
any statute or order of court, shall thereafter be entitled to possession of the
premises demised but shall forthwith quit and surrender the premises. If this
lease shall be assigned in accordance with its terms, the provisions of this
article 16 shall be applicable only to the party then owning Tenant's interest
in this lease.
(b) it is stipulated and agreed that in the event of the termination
of this lease pursuant to (a) hereof, owner shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages an amount equal to the difference between
the rent reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof be re-let by the Owner for the unexpired term of said lease, or any
part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such re-letting
shall be deemed to be the fair and reasonable rental value for the part or the
whole of the premises so re-let during the term of the re-letting. Nothing
herein contained shall limit or prejudice the right of the Owner to prove for an
obtain as liquidated damages by reason of such termination, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
DEFAULT: 17. (1) If Tenant defaults in fulfilling any of the covenants of
this lease other than the covenants for the payment of rent or additional
rent; or if the demised premises(23); or if any execution or attachment shall
be issued against Tenant or any of Tenant's property whereupon the demised
premises shall be taken or occupied by someone other than Tenant; or if this
lease by rejected under Section. 235 of Title 11 of the U.S. Code (bankruptcy
code); then, in any one or more of such events, upon owner serving a
written(24) days notice upon Tenant specifying the nature of said default and
upon the expiration of said(24) days, if Tenant shall have failed t comply
with or remedy such default , or if the said default or omission complained
of shall be of a nature that the same cannot be completely cured or remedied
within said (24) day period, and if Tenant shall not have diligently
commenced curing such default within such (24) day period, and shall not
thereafter with reasonable diligence and in good faith, proceed to remedy or
cure such default, then Owner may serve a written (25) days' notice of
cancellation of this lease upon Tenant, and upon the expiration of said(25)
days this lease and the term thereunder shall end and expire as fully and
completely as if the expiration of such(25) day period were the day herein
definitely fixed for the end and expiration of this lease and the term
thereof and Tenant shall then quit and surrender the demised premises to
Owner but Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been
given, and the term shall expire as aforesaid; or if Tenant shall make
default in the payment of the rent reserved herein or any item of additional
rent herein mentioned or any part of either or in making any other payment
herein required(26) then and in any of such events Owner may without notice,
re-enter the demised premises either by force or otherwise, and dispossess
Tenant by summary proceedings or otherwise, and the legal representative of
Tenant or other occupant of demised premises and remove their effects and
hold the premises as if this lease had not been made, and Tenant hereby
waives the service of notice of intention to re-enter or to institute legal
proceedings to that end.
REMEDIES OF 18. In case of any such default, re-entry, expiration and/or
OWNER AND dispossess by summary proceedings or otherwise, (a) the
WAIVER OF rent shall become due thereupon and be paid up to the time of
REDEMPTION such re-entry, the dispossess and/or expiration, (b) Owner
may re-let the premises or any part or parts
<PAGE>>
thereof, either in the name of Owner or otherwise, for a term or terms, which
may at Owner's option be less than or exceed the period which would otherwise
have constituted the balance of the term of this lease and may grant concessions
or free rent or charge a higher rental than that in this lease, and/or (c)
Tenant or the legal representatives of Tenant shall also pay Owner as liquidated
damages for the failure of Tenant to observe and perform said Tenant's covenants
herein contained, any deficiency between the rent hereby reserved and/or
covenanted to be paid and the net amount, if any, of the rents collected on
account of the lease or leases of the demised premises for each month of the
period which would otherwise have constituted the balance of the term of this
lease. The failure of Owner to re-let the premises or any part or parts thereof
shall not release or affect Tenant's liability for damages. In computing such
liquidated damages there shall be added to the said deficiency such expenses as
Owner may incur in connection with re-letting, such as legal expenses,
reasonable attorneys' fees, brokerage, advertising and for keeping the demised
premises in good order or for preparing the same for re-letting. Any such
liquidated damages shall be paid in monthly installments by Tenant on the rent
day specified in this lease and any suit brought to collect the amount of the
deficiency for any month shall not prejudice in any way the rights of Owner to
collect the deficiency for any subsequent month by a similar proceeding. Owner,
in putting the demised premises in good order or preparing the same for
re-rental may, at Owner's option, make such alterations, repairs, replacements,
and/or decorations in the demised premises as Owner, in Owner's sole judgment,
considers advisable and necessary for the purpose of re-letting the demised
premises, and the making of such alterations, repairs, replacements, and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Owner shall in no event be liable in any way whatsoever
for failure to re-let the demised premises, or in the event that the demised
premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Owner shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Owner obtaining
possession of demised premises, by reason of the violation by Tenant of any of
the covenants and conditions of this lease, or otherwise.
FEES AND 19. If Tenant shall default in the observance or performance
EXPENSES: of any term or covenant on Tenant's part to be observed
or performed under or by virtue of any of the terms or provisions in any article
of this lease, after notice if required and upon expiration of any applicable
grace period if any, (except in an emergency), then, unless otherwise provided
elsewhere in this lease, Owner may immediately or at any time thereafter and
without notice perform the obligation of Tenant thereunder. If Owner, in
connection with the foregoing or in connection with any default by Tenant in the
covenant to pay rent hereunder, makes any(27) expenditures or incurs any
obligations for the payment of money, including but not limited to reasonable
attorneys' fees, in instituting, prosecuting or defending any action or
proceeding, and prevails in any such action or proceeding then Tenant will
reimburse owner for such sums so paid or obligations incurred with interest and
costs. The foregoing expenses incurred by reason of Tenant's default shall be
deemed to be additional rent hereunder and shall be paid by Tenant to Owner
within ten (10) days of rendition of any bill or statement to Tenant therefor.
If Tenant's lease term shall have expired at the time of making of such
expenditures or incurring of such obligations, such sums shall be recoverable by
Owner, as damages.
BUILDING 20. Owner shall have the right at any time without the same
ALTERATIONS constituting an eviction and without incurring liability to
AND MANAGEMENT: Tenant therefor to change the arrangement and/or location
of public entrances, passageways, doors, doorways, corridors, elevators,
stairs, toilets or other public parts of the building and to change the name,
number or designation by which the building may be known(28) shall be no
allowance to Tenant for diminution of rental value and no liability on the
part of Owner by reason of inconvenience, annoyance or injury to business
arising from Owner or other Tenants making any repairs in the building or any
such alterations, additions and improvements. Furthermore, Tenant shall not
have any claim against Owner by reason if Owner's imposition of such(29)
controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants.
<PAGE>
NO 21. Neither Owner nor Owner's agents have made any
REPRESENTATIONS representations or promises with respect to the physical
BY OWNER: condition of the building, the land upon which it is erected
or the demised premises, the rents, leases, expenses of operation or any other
matter or thing affecting or related to the premises except as herein expressly
set forth and no rights, easements or licenses are acquired by Tenant by
implication or otherwise except as expressly set forth in the provisions of this
lease. Tenant has inspected the building and the demised premises and is
thoroughly acquainted with their condition and agrees to take the same "as is"
and acknowledges that the taking of possession of the demised premises by Tenant
shall be conclusive evidence that the said premises and the building of which
the same form a part were in good and satisfactory condition at the time such
possession was so taken, except as to latent defects. All understandings and
agreements heretofore made between the parties hereto are merged in this
contract, which alone fully and completely expresses the agreement between Owner
and Tenant and any executory agreement hereafter made shall be ineffective to
change, modify, discharge or effect an abandonment of it in whole or in part,
unless such executory agreement is in writing and signed by the party against
whom enforcement of the change, modification, discharge or abandonment is
sought.
END OF TERM: 22. Upon the expiration or other termination of the term of
this lease, Tenant shall quit and surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear and damages which Tenant is
not required to repair as provided elsewhere in this lease excepted, and Tenant
shall remove all it property. Tenant's obligation to observe or perform this
covenant shall survive the expiration of other termination of this lease. If the
last day of the term of this Lease or any renewal thereof, falls on Sunday, this
lease shall expire at noon on the preceding Saturday unless it be a legal
holiday in which case it shall expire at noon on the preceding business day.
QUIET 23. Owner covenants and agrees with Tenant that upon Tenant
ENJOYMENT: paying the rent and additional rent and observing and
performing all the terms, covenants and conditions, on Tenant's part to be
observed and performed, Tenant may peaceably and quietly enjoy the premises
hereby demised, subject, never-the-less, to the terms and conditions of this
lease including, but not limited to, Article 31 hereof and to the ground leases,
underlying leases and mortgages hereinbefore mentioned.
FAILURE TO 25. [Deleted]
GIVE POSSESSION:
NO WAIVER: 26. The failure of Owner(30) to seek redress for violation of,
or to insist upon the strict performance of any covenant or condition of this
lease or of any of the Rules or Regulations, set forth or hereafter adopted
by Owner, shall not prevent a subsequent act which would have originally
constituted a violation from having all the force and effect of an original
violation. The(31) receipt by Owner of rent and/or additional rent with
knowledge of the breach of any covenant of this lease shall not be deemed a
waiver of such breach and no provision of this lease shall be deemed to have
been waived by (32) unless such waiver be in writing signed by (32). No
payment by Tenant or receipt by Owner of a lesser amount than the monthly
rent herein stipulated shall be deemed to be other than on account of the
earliest stipulated rent, nor shall any endorsement or statement of any check
or any letter accompanying any check or payment as rent be deemed an accord
and satisfaction, and Owner may accept such check or payment without
prejudice to Owner's right to recover the balance of such rent or pursue any
other remedy in this lease provided. No act or thing done by Owner or Owner's
agents during the term hereby demised shall be deemed an acceptance of a
surrender of said premises, and no agreement to accept such surrender shall
be valid unless in writing signed by Owner. No employee of Owner or Owner's
agent shall have any power to accept the keys of said premises prior to the
termination of the lease and the deliver of keys to any such agent or
employee shall not operate as termination of the lease or a surrender of the
premises.
WAIVER OF 27. It is mutually agreed by and between Owner and Tenant that
TRIAL BY JURY: the respective parties JURY: hereto shall and they hereby
do waive trial by jury in any action proceeding or counterclaim brought by
either of the parties hereto against the other (except for personal injury or
property damage) on any matters whatsoever arising out of or in any way
connected with this lease, the relationship of Owner and Tenant, Tenant's use
of or occupancy of said premises, and any emergency statutory or any other
statutory remedy. It is further mutually agreed that in the event Owner
commences any proceeding or action for possession including a summary
proceeding for possession of the premises, Tenant will not interpose any
counterclaim of whatever nature or description in any such proceeding
including a counterclaim under Article 4 except for statutory mandatory
counterclaims.
<PAGE>
INABILITY TO 28. (33)Lease and the obligation of Tenant to pay rent
PERFORM: hereunder and perform all of the other covenants and
agreements hereunder on part of Tenant to be performed shall in no wise be
affected, impaired or excused because Owner is unable to fulfill any of its
obligations under this lease or to supply or is delayed in supplying any
service expressly or impliedly to be supplied or is unable to make, or is
delayed in making any repair, additions, alterations or decorations or is
unable to supply or is delayed in supplying any equipment, fixtures, or other
materials if Owner is prevented or delayed from so doing by reason of strike
or labor troubles or any cause whatsoever including, but not limited to,
government preemption or restrictions or by reason of any rule, order or
regulation of any department or subdivision thereof of any government agency
or by reason of the conditions which have been or are affected, either
directly or indirectly, by war or other emergency.(33a)
BILLS AND 29. Except as otherwise in this lease provided, a bill,
NOTICES: statement, notice or communication which Owner may desire or
be required to give to Tenant, shall be deemed sufficiently given or rendered
if, in writing, delivered to Tenant personally or sent by registered or
certified mail(34) and the time of the rendition of such bill or statement
and of the giving of such notice or communication shall be deemed to be the
time when the same is delivered to Tenant.(35) Any notice by Tenant to Owner
must be served by registered or certified mail addressed to Owner at the
address first hereinabove given or at such other address as Owner shall
designate by written notice.
SERVICES 30. As long as(36) Owner shall provide: (a) necessary elevator
PROVIDED BY facilities on business days from 8 a.m. to 6 p.m. and have one
OWNERS: elevator subject to call at all other times; (b) heat to the
demised premises when and as required by law, on business days(36a); (c)
water for ordinary lavatory purposes, but if Tenant uses or consumes water
for any other purposes or in unusual quantities (of which fact Owner shall be
the sole judge), Owner may install a water meter at Tenant's expense which
Tenant shall maintain at Tenant's expense in good working order and repair to
register such water consumption and Tenant shall pay for water consumed as
shown on said meter as additional rent as and when bills are rendered(37)
said premises are to be kept clean by Tenant, at Tenant's sole expense, in a
manner reasonably satisfactory to Owner and no one other than persons
approved by Owner shall be permitted to enter said premises or the building
of which they are a part for such purpose. Tenant shall pay Owner the cost of
removal of any of Tenant's refuse and rubbish from the building; (e) Owner
reserves the right to stop services of the heating, elevators, plumbing,
air-conditioning, electric, power systems or cleaning or other services, if
any, when necessary by reason of accident or for repairs, alterations,
replacements or improvements necessary or desirable in the judgment of Owner
for as long as may be reasonably required by reason thereof. If the building
of which the demised premises are a part supplies manually operated elevator
service, Owner at any time may substitute automatic control elevator service
and proceed diligently with alterations necessary therefor without in any
wise affecting this lease or the obligation of Tenant hereunder.
CAPTIONS: 31. The Captions are inserted only as a matter of convenience
and for reference and in no way define, limit or describe the scope of this
lease nor the intent of any provisions thereof.
DEFINITIONS: 32. The term "office", or "offices", wherever used in this
lease, shall not be
<PAGE>
construed to mean premises used as a store or stores, for the sale or display,
at any time, of goods, wares or merchandise, of any kind, or as a restaurant,
shop, booth, bootblack or other stand, barber shop, or for other similar
purposes or for manufacturing. The term "Owner" means a landlord or lessor, and
as used in this lease means only the owner, or the mortgagee in possession, for
the time being of the land and building (or the owner of a lease of the building
or of the land and building) of which the demised premises form a part, so that
in the event of any sale or sales of said land and building or of said lease, or
in the event of a lease of said building, or of the land and building, the said
Owner shall be and hereby is entirely freed and relieved of all covenants and
obligations of Owner(38) hereunder, and it shall be deemed and construed without
further agreement between the parties or their successors in interest, or
between the parties and the purchaser, at any such sale, or the said lessee of
the building, or of the land and building, that the purchaser or the lessee of
the building has assumed and agreed to carry out any and all covenants and
obligations of Owner, hereunder. The words "re-enter" and "re-entry" as used in
this lease are not restricted to their technical legal meaning. The term
"business days" as used in this lease shall exclude Saturdays, Sundays and all
days as observed by the State or Federal Government as legal holidays and those
designated as holidays by the applicable building service union employees
service contract or by the applicable Operating Engineers contract with respect
to HVAC service. Wherever it is expressly provided in this lease that consent
shall not be unreasonably withheld, such consent shall not be unreasonably
delayed.
ADJACENT 33. If an excavation shall be made upon land adjacent to the
EXCAVATION- demised premises, or shall be authorized to be made, Tenant
SHORING: shall afford to the person causing or authorized to cause such
excavation, license to enter upon the demised premises for the purpose of doing
such work as said person shall deem necessary to preserve the wall or the
building of which demised premises form a part from injury or damage and to
support the same by proper foundations without any claim for damages or
indemnity against Owner, or diminution or abatement of rent.
RULES AND 34. Tenant and Tenant's servants, employees, agents, visitors
REGULATIONS: and licensees shall observe faithfully, and comply with, the
Rules and Regulations as Owner's agents may from time to time adopt.(39)
Notice of any additional rules or regulations shall be given(40). In case
Tenant disputes the reasonableness of any additional Rule or Regulation
hereafter made or adopted by Owner or Owner's agents, the parties hereto
agree to submit the question of the reasonableness of such Rule or Regulation
for decision to the New York office of the American Arbitration Association,
whose determination shall be final and conclusive upon the parties hereto.
The right to dispute the reasonableness of any additional Rule or Regulation
upon Tenant" part shall be deemed waived unless the same shall be asserted by
service of a notice, in writing upon Owner within (41) days after the giving
of notice thereof. Nothing in this lease contained shall be construed to
impose upon Owner any duty or obligation to enforce the Rules and Regulations
or terms, covenants or conditions in any other lease, as against any other
tenant and Owner shall not be liable to Tenant for violation of the same by
any other tenant, its servants, employees, agents, visitors or licensees.(42)
SECURITY: 35. Tenant has deposited with Owner the sum of $ as
security
<PAGE>
for the faithful performance and observance by Tenant of the terms, provisions
and conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent or any other sum as to
which Tenant is in default or for any sum which Owner may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this lease, including, but not limited to, any
damages or deficiency in the re-letting of the premises, whether such damages or
deficiency in the re-letting of the premises, whether such damages or deficiency
accrued before or after summary proceedings or other re-entry by Owner. In the
event that Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this lease, the security shall be
returned to Tenant after the date fixed as the end of the Lease and after
delivery of entire possession of the demised premises to Owner. In the event of
a sale of the land and building or leasing of the building, of which the demised
premises form a part, Owner shall transfer the security to the vendee or lessee
and Owner shall thereupon be released by Tenant from all liability for the
return of such security; and Tenant agrees to look to the new Owner solely for
the return of said security and it is agreed that the provisions hereof shall
apply to every transfer or assignment made of the security to a new owner.
Tenant further covenants that it will not assign or encumber or attempt to
assign or encumber the monies deposited herein as security and that neither
Owner nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
ESTOPPEL 36. Tenant, at any time, and from time to time, upon at least
CERTIFICATE: 10 days' prior notice by Owner, shall execute, acknowledge and
deliver to Owner, and/or to any other person, firm or corporation specified by
Owner, a statement certifying that this Lease is unmodified and in full force
and effect (or, if there have been modifications, that the same in full force
and effect as modified and stating the modifications), stating the dates to
which the rent and additional rent have been paid, and stating whether or not
there exists any default by Owner under this Lease, and, if so, specifying each
such default.
SUCCESSORS 37. The covenants, conditions and agreements contained in this
AND ASSIGNS: lease shall bind and inure to the benefit of Owner and Tenant
and their respective heirs, distributees, executors, administrators, successors,
and except as otherwise provided in this lease, their assigns. Tenant shall look
only to Owner's estate and interesting the land and building(43) for the
satisfaction of Tenant's remedies for the collection of a judgment (or other
judicial process) against Owner in the event of any default by Owner hereunder,
and no other property or assets of such Owner (or any partner, member, officer
or director thereof, disclosed or undisclosed), shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to this lease, the relationship of Owner and
Tenant hereunder, or Tenant's use and occupancy of the demised premises.
See Rider annexed hereto and made a part hereof containing Articles 37-59
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
Witness for Owner: JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY, Landlord
By:[illegible]
------------------------------------ ------------------------------------
DOUBLECLICK INC.
Witness for Tenant: Tenant
------------------------------------ ---------------------------------------
By:/s/ Jeff Epstein Chief Financial
Officer
------------------------------------
<PAGE>
ACKNOWLEDGEMENTS
CORPORATE OWNER
STATE OF NEW YORK, ss.:
On this _____ day of __________, 19___, before me personally came
__________ to me known, who being by me duly sworn, did depose and say that he
resides in __________; that he is the __________ of __________ the corporation
described in and which executed the foregoing instrument, as OWNER; that he
knows the seal of said corporation; the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation, and that he signed his name thereto by like order.
INDIVIDUAL OWNER
STATE OF NEW YORK, ss.:
On this _____ day of __________, 19___, before me personally came
__________ to me known to be the individual described in and who, as OWNER;
executed the foregoing instrument and acknowledged to me that __________ he
executed the same.
CORPORATE TENANT
STATE OF NEW YORK, ss.:
COUNTY OF
On this _____ day of __________, 19___, before me personally came __________ to
me known, who being by me duly sworn, did depose and say that he resides in
__________; that he is the __________ of __________ the corporation described in
and which executed the foregoing instrument, as TENANT; that he knows the seal
of said corporation; the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation,
and that he signed his name thereto by like order.
INDIVIDUAL TENANT
STATE OF NEW YORK, ss.:
On this _____ day of __________, 19___, before me personally came
__________ to me known to be the individual described in and who, as TENANT;
executed the foregoing instrument and acknowledged to me that __________ he
executed the same.
GUARANTY
FOR VALUE RECEIVED, and in consideration for, and as an inducement to Owner
making the within lease with Tenant, the undersigned guarantees to Owner,
Owner's successors and assigns, the full performance and observance of all the
covenants, conditions and agreements, therein provided to be performed and
observed by Tenant, including the "Rules and Regulations" as therein provided,
without requiring any notice of non-payment, non-performance, or non-observance,
or proof, or notice, or demand, whereby to charge the undersigned therefor, all
of which the undersigned hereby expressly waives and expressly agrees that the
validity of this agreement and the obligations of the guarantor hereunder shall
in no wise be terminated, affected or impaired by reason of the assertion by
Owner against Tenant of any of the rights or remedies reserved to Owner pursuant
to the provisions of the within lease. The undersigned further covenants and
agrees that this guaranty shall remain and continue in full force and effect as
to any renewal, modification or extension of this lease and during any period
when Tenant is occupying the premises as a "statutory tenant." As a further
inducement to Owner to make this lease and in consideration thereof, Owner and
the undersigned covenant and agree that in any action or proceeding brought by
either Owner or the undersigned against the other or any matters whatsoever
arising out of, under, or by virtue of the terms of this lease or of this
guarantee that Owner and the undersigned shall and do hereby waive trial by
jury.
Dated: 19
--------------- --
------------------------------------
Guarantor
<PAGE>
------------------------------------
Witness
------------------------------------
Guarantor's Residence
------------------------------------
Business Address
------------------------------------
Firm Name
STATE OF NEW YORK ) ss.:
COUNTY OF )
On this _____ day of __________, 19___, before me personally came __________ to
me known to me to be the individual described in, and who executed the foregoing
Guaranty and acknowledged to me that he executed the same.
------------------------------------
Notary
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 33.
1. The sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by any
Tenant or used for any purpose other than for ingress or egress from the demised
premises and for delivery of merchandise and equipment in a prompt and efficient
manner using elevators and passageways designated for such delivery by Owner.
There shall not be used in any space, or in the public hall of the building,
either by any Tenant or by jobbers or others in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and
sideguards. If said premises are situated on the ground floor of the building,
Tenant thereof shall further, at Tenant's expense, keep the sidewalk and curb in
front of said premises clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for any
purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any window of
the building and no Tenant shall sweep or throw or permit to be swept or thrown
from the demised premises any dirt or other substances into any of the corridors
or halls, elevators, or out of the doors or windows or stairways of the building
and Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the demised premises, or permit or suffer the demised
premises to be occupied or used in a manner offensive or objectionable to Owner
or other occupants of the building by reason of noise, odors, and/or vibrations,
or interfere in any way with other Tenants or those having business therein, nor
shall any bicycles, vehicles, animals, fish, or birds be kept in or about the
building.(44) Smoking or carrying lighted cigars or cigarettes in the elevators
of the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls of the
building without the prior written consent of Owner.(44a)
<PAGE>
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premise if the
same is visible from the outside of the premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance door
of the premises. In the event of the violation of the foregoing by any Tenant,
Owner may remove same without any liability, and may charge the expense incurred
by such removal to Tenant or Tenants violating this rule. Interior signs on
doors and directory tablet shall be inscribed, painted or affixed for each
Tenant by Owner at the expense of such Tenant, and shall be of a size, color and
style acceptable to Owner.
6. No Tenant shall mark, paint, drill into, or in any way deface any part of
the(45). No boring, cutting or stringing of wires shall be permitted(46), except
with the prior written consent of Owner, and as Owner may direct. No Tenant
shall lay linoleum, or other similar floor covering, so that the same shall come
in direct contact with the floor of the demised premises, and, if linoleum or
other similar floor covering is desired to be used as an interlining of
building's deadening felt shall be first affixed to the floor, by a paste or
other material, soluble in water, the use of cement or other similar adhesive
material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing locks
or mechanism thereof. Each Tenant must, upon the termination of his Tenancy,
restore to Owner all keys of stores, offices and toilet rooms, either furnished
to, or otherwise procured by, such Tenant, and in the event of the loss of any
keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to and removed from the premises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease or which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and each
Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building all persons who do not
present a pass to the building signed by Owner. Owner will furnish passes to
persons for whom any Tenant requests same in writing. Each Tenant shall be
responsible for all persons for whom he requests such pass and shall be liable
to Owner for all acts of such persons. Tenant shall not have a claim against
Owner by reason of Owner excluding from the building any person who does not
present such pass.
11. Owner shall have the right to prohibit any advertising by any Tenant which
in Owner's opinion, tends to impair the reputation of the building or its
desirability as a building for offices, and upon written notice from Owner,
Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the demised
premises, any inflammable, combustible, explosive, or hazardous fluid, material,
chemical or substance, or cause or permit any(48) odors of cooking or other
processes, or any unusual or other objectionable odors to permeate in or emanate
from the demised premises.
13. If the building contains central air conditioning and ventilation, Tenant
agrees to keep all windows closed at all times and to abide by all rules and
regulations issued by Owner with respect to such services. If Tenant requires
air conditioning or ventilation after the usual hours, Tenant shall give notice
in writing to the building superintendent prior to 3:00 p.m. in the case of
services required on week days, and prior to 3:00 p.m. on the day prior in case
of after hours service required on weekends or on holidays. Tenant shall
cooperate with Owner in obtaining maximum effectiveness of the cooling system by
lowering and closing venetian blinds and/or drapes and curtains when the sun's
rays fall directly on the windows of the demised premises.
14. Tenant shall not move any safe, heavy machinery, heavy equipment, bulky
matter, or fixtures into or out of the building without Owner's prior written
consent(49). If such safe,
<PAGE>
machinery, equipment, bulky matter or fixtures requires special handling,
all work in connection therewith shall comply with the Administrative Code of
the City of New York and all other laws and regulations applicable thereto and
shall be done during such hours as Owner may designate.
15. Refuse and Trash. (1) Compliance by Tenant. Tenant covenants and agrees, at
its sole cost and expense, to comply with all present and future laws, orders,
and regulations of all state, federal, municipal, and local governments,
departments, commissions and boards regarding the collection, sorting,
separation and recycling of waste products, garbage, refuse and trash. Tenant
shall sort and separate such waste products, garbage, refuse and trash into such
categories as provided by law. Each separately sorted category of waste
products, garbage, refuse and trash shall be placed in separate receptacles
reasonably approved by Owner. such separate receptacles may, at Owner's option,
be removed from the demised premises in accordance with a collection schedule
prescribed by law. Tenant shall remove, or cause to be removed by a contractor1
acceptable to Owner, at Owner's sole discretion, such items as Owner may
expressly designate. (2) Owner's Rights in Event of Noncompliance. Owner has the
option to refuse to collect or accept from Tenant waste products, garbage,
refuse or trash (a) that is not separated and sorted as required by law or (b)
which consists of such items as Owner may expressly designate for Tenant's
removal, and to require Tenant to arrange for such collection at Tenant's sole
cost and expense, utilizing a contractor satisfactory to Owner. Tenant shall pay
all costs, expenses, fines, penalties, or damages that may be imposed on Owner
or Tenant by reason of Tenant's failure to comply with the provisions of this
Building Rule 15, and, at Tenant's sole cost and expense, shall indemnity,
defend and hold Owner harmless (including reasonable legal fees and expenses)
from and against any actions, claims and suits arising from such noncompliance,
utilizing counsel reasonably satisfactory to Owner.
<PAGE>
TEXT TO NUMBERED INSERTIONS (1)
TO (50) TO AGREEMENT OF LEASE DATED
AS OF JANUARY 26, 1999 BETWEEN
JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY, AS LANDLORD, AND
DOUBLECLICK INC., AS TENANT
---------------------------------------
(U1) Insert: "a running track, a totally enclosed basketball court
(enclosed by a wall or chain link fence), a ping-pony table, eating
and sitting areas, garden areas, provided that the particular manner
of engaging in the foregoing uses will not be hazardous, and for other
recreational outdoor uses, in each case, in a high-quality manner;
provided such other recreational outdoor uses are approved by
Landlord, which approval shall not be unreasonably withheld or
delayed, and provided that Tenant complies with all the other terms
and conditions of this lease and that the other recreational outdoor
uses are safe uses and all installations are visually attractive).
Tenant shall not use the Roof/Set-Back Area in a manner that disturbs
other tenants in the building. Tenant shall, at Tenant's expense,
reduce or eliminate noise or vibration caused by Tenant's roof
installations as to which complaints have been made from tenants
within the building, and if Tenant shall reduce (as opposed to
eliminating) such noise or vibrations, Tenant shall reduce such noise
or vibrations to such an extent so that all such complaints shall
cease. Articles 54 and 55 of this lease, except to the extent
inconsistent with the terms and conditions of this Article and of
Articles 4, 8 and 59 of this lease, shall apply to the Roof/Set-Back
Area. Tenant's use of the demised premises shall be"
(Ula) Insert: "Such certificate of occupancy is a temporary certificate of
occupancy, which has expired. Landlord covenants that Landlord will
have such temporary certificate of occupancy renewed prior to the
submission to the Buildings Department of Tenant's alteration
application for the plans and specifications for the Tenant
Improvements after Landlord's approval of such plans and
specifications pursuant to the terms and conditions of this lease,
provided that if Landlord shall not have renewed such temporary
certificate of occupancy prior to such submission to the Buildings
Department, Tenant shall receive an additional day of fixed rent
abatement pursuant to Article 38(E) for each day thereafter until
Landlord shall renew such temporary certificate of occupancy."
(U2) Insert: ", except that Tenant may use the Interior Demised Area for
cooking (provided that Tenant properly vents the cooking area to the
roof, the cooking area is waterproofed and Tenant complies with all
legal requirements) and may install vending machines, in each case for
the benefit of its employees and business invitees, and not for
consumption or sale to the general public."
(1) Insert: "adversely"
(2) Insert: "provided that Landlord shall be responsible for maintaining
and repairing any installations or other work within the demised
premises performed by Landlord, but solely to the extent and for the
duration of any warranty given to Landlord in connection with such
installation or other work, with Tenant being responsible for
maintaining and repairing such installation or other work to the
extent such maintenance or repairs either are not covered by any such
warranty or if any such warranty has expired. "
(3) Insert: "Tenant shall be responsible for maintaining the Roof/Set-Back
Area in good order and repair, but Tenant shall not be responsible for
repairs to the Roof/Set-Back Area if such repairs are necessitated by
the actions of Landlord or another tenant or by casualties involving
the equipment or fixtures of Landlord or another tenant. Tenant shall
also be responsible for repairs to any other portion of the roof or
the building caused by Tenant. Landlord, at Landlord's election, but
at Tenant's cost and expense, as additional rent, may make those
repairs and alterations required or desired to be made by Tenant to
the Roof/Set-Back Area. As soon as reasonably possible after the date
of this lease, Landlord shall install a new roof designed and approved
by Tenant, such approval not to be unreasonably withheld, in the areas
to be used by Tenant (which installation shall
<PAGE>
include the removal and disposal of the existing roof in such areas),
and Landlord's cost of the installation of such new roof (and the
removal and disposal of such existing roof), which cost shall be
competitively priced, shall be deemed to be additional rent hereunder,
payable by Tenant upon demand. If Landlord shall not have completed
the installation of such new roof (and the removal and disposal of
such existing roof) within 60 days after the later of Landlord's and
Tenant's approvals of the plans and specifications therefor, subject
to extension of such 60 day period by reason of force majeure events,
Tenant shall have the right, upon not less than 10 days' prior written
notice to Landlord, at Tenant's sole cost and expense, to install (or
complete the installation of) such new roof (and the removal and
disposal of such existing roof) in accordance with the plans and
specifications previously approved by Landlord and Tenant."
(4) Insert: "using contractors and subcontractors selected by the Tenant
from Landlord's list of approved contractors and subcontractors, and
if Tenant uses any of the contractors or subcontractors on Landlord's
list, such contractors or subcontractors shall be deemed approved by
Landlord for the work for which Tenant has requested such list, or if
none of such contractors or subcontractors on Landlord's list are
acceptable to Tenant, Tenant shall submit the names of the contractors
or subcontractors which Tenant desires to use, for Landlord's consent,
which shall not be unreasonably withheld, delayed or conditioned."
(5) Insert: "provided that Landlord uses reasonable efforts to minimize
interference with Tenant's business"
(6) Insert: "except as otherwise expressly set forth herein"
(7) Insert: `particular"
(8) Insert: ", provided that nothing contained in any policies of
insurance issued to John Hancock Mutual Life Insurance Company shall
require Tenant to discontinue its use of the demised premises as
permitted by this lease and provided further that if any provision of
any policy of insurance issued to a successor or assign of John
Hancock Mutual Life Insurance Company as owner of the building shall
require Tenant to discontinue its use of the demised premises as
permitted by this lease, such successor or assign shall use good faith
efforts to obtain an insurance policy in replacement of such policy
which shall permit such use by Tenant and if such successor or assign
shall obtain such a replacement insurance policy, Tenant shall pay the
increased cost thereof, if any, as additional rent under this lease,"
(9) Insert: ", to be reasonably exercised when the weight of the safe,
business machine or item of mechanical equipment shall be less than
one half of the rated live load under the certificate of occupancy of
the building,"
(10) Insert: "Notwithstanding anything in this lease to the contrary,
Landlord, at its expense, will promptly cure all violations of record
affecting the building (other than the demised premises), not
attributable to Tenant or anyone acting on Tenant's behalf or to
Tenant's particular use of the demised premises or to Tenant's
improvements, that will interfere with Tenant's ability to obtain any
building permits, sign-offs or amendments to the certificate of
occupancy for the lawful use by Tenant of the demised premises.
(11) Insert: "Equipment, including without limitation, all vents, now
existing on the east and west sides of the second roof set-back areas,
as cross-hatched on the diagram annexed hereto as Exhibit A-4, shall
remain and shall not be moved, altered or interfered with by Tenant,
but Landlord may not place any other equipment thereon that would, in
any way, interfere with or diminish the views from the interior of the
demised premises or the amount of light that enters the demised
premises, provided that if Landlord is unable, after using reasonable
efforts, to place equipment elsewhere on the roof because it does not
have sufficient capacity therefor, Landlord may place such equipment
on the second roof set-back areas (and, if need be, diminish the views
and light entering the demised premises), provided that for a period
of thirty (30) days Landlord will use good faith efforts to work
together with Tenant in mutually agreeing on a location that will
permit the installation of such equipment and be satisfactory to
Tenant; provided further that if
<PAGE>
the parties do not mutually agree on a location within such thirty
(30) day period, Landlord can nonetheless make such installation, but
Landlord will use its best efforts to restrict the number of windows
blocked thereby. Notwithstanding the foregoing, Tenant understands
that Landlord reserves the right to put signage on the upper roof on
top of the building in the future and, if necessary, to relocate, at
Landlord's expense, Tenant's skylights to an area, and with a design
thereof, approved by Tenant, such approval not to be unreasonably
withheld or delayed. In any event, such relocation of skylights shall
be performed by Landlord, at Landlord's expense, if the amount of
light transmitted through the skylights is reduced by more than 50% by
Landlord's placement of such signage. In connection with any such
relocation of skylights, Landlord agrees that such relocation shall be
performed without interference with Tenant's business, so that to the
extent that any such interference would occur, such work shall be
performed after Tenant's regular business hours. If it shall not be
possible for Landlord to relocate Tenant's affected skylights pursuant
to the terms and provisions of this paragraph, Landlord may
nevertheless, at Landlord's sole cost and expense, remove such
skylights and restore the affected area to its condition existing
immediately prior to the installation of such skylights, and Landlord
shall reimburse Tenant for Tenant's cost of installation of such
skylights, all such reimbursements not to exceed an aggregate of
$100,000. Further, except to the extent Landlord has waived recovery
against Tenant pursuant to Article 9,"
(12) Insert: "during the last 24 months of the term (subject to Tenant's
right to exercise its renewal option, but if Tenant exercises its
renewal option, Landlord shall not be required to repair the damage
unless and until Tenant has not cancelled the exercise of its renewal
option, as provided in Article 53 of this lease, within the time
period provided therefor in this lease),"
(13) Insert: "damaged such that the cost to rebuild would exceed twenty
percent (20%) of the full insurable value of the building and"
(14) Insert: "60 days after such fire or casualty, or 20 days after
adjustment of the insurance claim for such fire or casualty if it
affects any portion of the building outside the demised premises (or
45 days after such fire or casualty, or 15 days after adjustment of
the insurance claim for such fire or casualty if it affects the
demised premises only),"
(15) Insert: "If (x) the demised premises are substantially damaged or
access thereto is denied, in either event, during the remaining
eighteen (18) months of the term of this lease such that the repairs
to be made by Landlord would take in excess of five (5) months to
repair, or (y) if the demised premises are substantially damaged, or
if access to the demised premises is denied, by reason of fire or
other casualty at any time during the term of this lease such that the
repairs to be made by Landlord would take in excess of nine (9) months
from Landlord's receipt of the insurance proceeds in the case of
damage solely to the demised premises or such access and thirty (30)
months from Landlord's receipt of insurance proceeds in the case of
damage to the building outside the demised premises or such access, in
each case subject to extension of such nine (9) and thirty (30) month
periods due to force majeure events, Tenant shall have the right to
terminate this lease by written notice to Landlord given within 45
days of the casualty."
(16) Insert: "or Tenant"
(17) Insert: "with respect to damage to the demised premises or the
building caused by fire or other casualty that is covered by insurance
carried by the parties hereunder or which is required to be carried by
the parties hereunder. John Hancock Mutual Life Insurance Company
agrees that for as long as John Hancock Mutual Life Insurance Company
(but not any of its successors or assigns as Landlord) is Landlord, it
will carry and keep in force "all risk", extended coverage property
insurance covering the building to a limit of not less than 100% of
the full replacement cost thereof."
(18) Insert: "If more than twenty-two and one-half percent (22-1/2%) of the
demised premises are condemned and, in Tenant's reasonable opinion,
Tenant can no longer operate its business in the demised premises in a
commercially reasonable manner, Tenant may terminate this lease upon
thirty (30) days notice following Tenant's receipt of notice of such
taking. If Tenant does not terminate this lease by reason of the
preceding sentence,
<PAGE>
the fixed rent shall be adjusted on a pro rata basis. Further, Tenant
shall be entitled to retain all proceeds of a temporary taking, and
this lease shall be unaffected thereby. "
(19) Insert: ", and the unamortized costs of Tenant's other leasehold
improvements in excess of the unamortized amount of Landlord's Work
Contribution therefor (the amortization of Landlord's Work
Contribution for each such leasehold improvement being calculated at
the same rate as the rate of amortization for such leasehold
improvement), provided that the condemnation award with respect to any
such leasehold improvement is first applied against the unamortized
amount of Landlord's Work Contribution allocable to such leasehold
improvement, and"
(20) Insert: "Landlord shall use reasonable efforts when entering the
demised premises or making any repairs therein, to minimize any
interference with Tenant's business."
(21) Insert: ", except as otherwise expressly set forth herein,"
(22) Insert: "and upon reasonable prior notice"
(23) Insert: "are abandoned"
(24) Insert: "thirty (30)"
(25) Insert: "seven (7)"
(26) Insert: "and such monetary default continues for a period of ten (10)
days after notice to Tenant that same was due and not paid, provided
that no such notice need be given to phrase "Payment Due on a
Recurring Basis" shall mean a payment the amount of which is fixed by
this lease or the amount of which does not differ from period to
period during the term of this lease)"
(27) Insert: "reasonable"
(28) Insert: "; provided that reasonable access to the building and the
demised premises remains. Except as expressly set forth in this lease
to the contrary, and subject to the provisions of Article 13 hereof,
there"
(29) Insert: "reasonable"
(30) Insert: "or Tenant"
(31) Insert: "payment by Tenant or the"
(32) Insert: "the non-breaching party"
(33) Insert: "Except as expressly otherwise provided herein, this"
(33a) Insert: "(herein celled "force majeure events")"
(34) Insert: ", return receipt requested, and addressed to Tenant, prior to
occupancy by Tenant for the conduct of its business, at 41 Madison
Avenue, New York, New York 10010, Attn: Elizabeth Wang, Esq., and
following the date that Tenant occupies the demised premises for the
conduct of its business, at the demised premises, Attn: Elizabeth
Wang, Esq., and in each case, with a copy to Loeb & Loeb LLP, 345 Park
Avenue, New York, New York 10154, Attn: Scott I. Schneider, Esq. "
(35) Insert: "or when delivery is refused"
(36) Insert: "this lease is in effect,"
(36a) Insert: "at any time required by Tenant from January 1 to March 31 and
from October 1 to December 31 of each year or on such other dates
during such year that steam shall be provided to tenants of the
building"
<PAGE>
(37) Insert: "(Owner shall install water meters at Tenant's expense to
measure Tenant's use of water only in the kitchen of the demised
premises and only in the showers in the demised premises, with Tenant
being responsible for maintaining such meters in good working order
and repair, to measure such water consumption and Tenant shall pay for
water consumed as shown on said meters as additional rent as and when
bills are
(38) Insert: "thereafter accruing"
(39) Insert: "and furnish to Tenant"
(40) Insert: "in accordance with Article 28."
(41) Insert: "thirty (30)"
(42) Insert: "Landlord agrees not to discriminate against Tenant in
enforcing any such Rules and Regulations. In the event of any
inconsistency between the provisions of this lease and the provisions
of the Rules and Regulations now or hereafter adopted, the provisions
of this lease shall govern."
(43) Insert: "(including all insurance and condemnation proceeds, but only
to the extent not used for repair or restoration of the demised
premises or the building)"
(44) Insert: "provided that bicycles which enter the building through
loading bay #21 and freight elevator #F-8 may be kept within the
demised premises and that, to the extent permitted by law, vehicles
may be kept in loading bay #21."
(44a) Insert: ", which approval shall not be unreasonably withheld or
delayed, and, with respect to the installation of any awning or other
projection on any wall of the Roof/Set-Back Area, such installation
shall be performed in compliance with the terms and conditions of
Articles 3, 45 and 59 of this lease."
(45) Insert: "demised premises or the building, except that Tenant may
mark, paint or drill into the demised premises pursuant, and subject,
to all the other terms, covenants and conditions of this lease."
(46) Insert: "outside of the demised premises"
(47) Insert: "or at any time through Tenant's exclusive freight elevator,
subject to the sharing of the use of such elevator with the tenant of
the 12h floor of the building if such tenant shall elect to use such
elevator pursuant to Article 56 (I) of this lease"
(48) Insert: "unreasonable"
(49) Insert: "not to be unreasonably withheld if Tenant shall use Tenant's
exclusive freight elevator therefor, it being understood that Tenant
may be required to share the use of such freight elevator with the
tenant of the 12~ floor of the building pursuant to Article 56 (1) of
this lease"
(50) Insert: "reasonably"
<PAGE>
RIDER ATTACHED TO AND MADE A PART OF LEASE
DATED AS OF JANUARY 26, 1999 BETWEEN JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY, AS LANDLORD, AND DOUBLECLICK INC., AS TENANT.
37. PROVISIONS OF RIDER:
This rider is annexed to and made a part of the printed portion of this
lease to which it is attached and in each instance in which the provisions of
this rider shall contradict or be inconsistent with the printed provisions of
the printed portion of this lease, as constituted without this rider, the
provisions of this rider shall prevail and govern and the contradicted or
inconsistent printed provisions of the printed portion of this lease shall be
deemed amended accordingly.
38. RENTAL:
(A) The rents reserved under this lease, shall be and consist of:
(1) fixed rent (sometimes hereinafter called the "fixed rent" or
"fixed annual rent") which shall be payable by Tenant in equal monthly
installments in advance on the first day of each and every calendar month during
the term of this lease at an annual rental rate of:
(i) ONE MILLION FOUR HUNDRED FORTY-SEVEN THOUSAND EIGHT HUNDRED
SEVENTY-EIGHT AND 75/lOOths DOLLARS ($1,447,878.75) for the period from the
Commencement Date (as such term is hereinafter defined) to and including
the day immediately preceding the fifth (5th) anniversary of the Rent
Commencement Date; and
(ii) ONE MILLION FIVE HUNDRED NINETY-EIGHT THOUSAND NINE HUNDRED
SIXTY-ONE AND 75/lOOths DOLLARS ($1,598,961.75) for the period from the
fifth (5th) anniversary of the Rent Commencement Date until the expiration
of the term; and
(2) additional rent (hereinafter "additional rent") consisting of
all such other sums of money as shall become due from and payable by Tenant to
Landlord hereunder (for default in payment of which Landlord shall have the same
remedies as for a default in payment of fixed rent). Unless otherwise provided
in this lease, such additional rental shall be payable in equal monthly
installments in advance concurrently with and in the same manner as the fixed
rent referred to in Sub-Article "(A)(1)" supra,
all to be paid to Landlord at its office, or such other place, or to such agent
and at such place, as Landlord may designate by notice to Tenant, in lawful
money of the United States of America, which shall be legal tender in payment of
all debts and dues, public and private at the time of payment.
(B) Any proration of rents or credits provided for in this lease shall
be made in the ratio of the periods of time involved and refund (or credit
against rents then or thereafter due) for overpayment of rents or payment of
rents due or accrued shall be made accordingly on demand.
(C) Tenant shall pay the fixed rent and additional rent herein
reserved promptly as and when the same shall become due and payable, without
demand therefor and without any abatement, deduction or offset whatsoever except
as expressly provided in this lease.
(D) The term of this lease shall commence on the date of this lease
(hereinafter called the "Commencement Date") and shall expire (unless such term
shall sooner cease and expire as elsewhere provided in this lease) on the day
immediately preceding the eleventh (11th) anniversary of the Commencement Date.
(E) Provided that no monetary default or no nonmonetary material
default shall have occurred and be continuing during the one-year period for
which the following credit is to be applied (provided further that Tenant shall
be entitled to be reimbursed by Landlord for any fixed rent or additional rent
paid by Tenant during such one-year period for which Tenant
<PAGE>
would otherwise have been entitled to receive such credit upon Tenant's cure of
such monetary default or such non-monetary material default), Tenant shall have
the right to use and occupy the demised premises free of fixed annual rent only
(but not against any additional rent or other charges, except for the abatement
for electricity and steam charges provided in Article 39(E)) for the period from
the Commencement Date to and including the day immediately preceding the first
anniversary of the Commencement Date. For purposes of this lease, the term "Rent
Commencement Date" shall be deemed to be the day which shall be the first
anniversary of the Commencement Date. If the Rent Commencement Date or the date
of expiration of the term of this lease shall not occur on the first day of a
month or the last day of a month, respectively, fixed rent for the month in
which the Rent Commencement Date or the date of expiration of the term, as the
case may be, shall occur, shall be prorated.
39. ELECTRICITY AND STEAM:
(A) Tenant covenants and agrees to purchase all electric current
used in the demised premises from Landlord or Landlord's designated agent for
the sum of (a) the product of (x) 105% of Landlord's Monthly Cost Per Kilowatt
Hour and (y) Tenant's aggregate monthly consumption of and demand for
electricity in the demised premises as determined by the electricity meters in
the demised premises and (b) Landlord's actual out-of-pocket costs and expenses
in reading the electricity meters and administering the electricity meter
billing. As used herein, the phrase "Landlord's Monthly Cost Per Kilowatt Hour"
shall mean (i) the total charges for electricity charged to and paid by Landlord
to the public utility serving the building calculated on a monthly basis
(including energy charges, consumption and demand charges, all applicable
surcharges, time-of-day charges, fuel adjustment charges, rate adjustment
charges and any other factors used by the public utility company in computing
its charges to Landlord), divided by (ii) the total kilowatt hours purchased by
Landlord during such period. Tenant covenants and agrees to purchase all steam
used in and for the demised premises from Landlord or Landlord's designated
agent for the sum of (a) the product of (x) 105% of Landlord's Monthly Cost Per
M/LB and (y) the aggregate monthly consumption of steam in or for the demised
premises as determined by the steam meters in the demised premises and (b)
Landlord's actual out-of-pocket costs and expenses in reading the steam meters
and administering the steam meter billing. As used herein, the phrase
"Landlord's Monthly Cost Per M/LB" shall mean (i) the total charges for steam
charged to and paid by Landlord to the public utility serving the building
calculated on a monthly basis (including energy charges, all applicable
surcharges, time-of-day charges, fuel adjustment charges, rate adjustment
charges and any other factors used by the public utility in computing its
charges to Landlord), divided by (ii) the total M/LB's of steam purchased by
Landlord during such period. As used herein, the term "M/LB" shall mean one
thousand pounds of steam. Where more than one meter measures Tenant's
consumption of and demand for electricity and steam (including, but not limited
to such electric energy and steam as is provided in connection with the
operation of the heating, ventilating and air conditioning equipment serving the
demised premises and all computer and other equipment in the demised premises),
the service rendered through each meter may be computed and billed separately in
accordance with the provisions hereof. Notwithstanding anything to the contrary
contained herein, in no event shall the amount billed to Tenant for electricity
and steam hereunder be less than 100% of Landlord's cost therefor. Bills
therefor shall be rendered at such times as Landlord may elect and shall be
payable within fifteen (15) days of demand therefor. If any tax is imposed upon
Landlord's receipts from the sale or resale of electrical energy and steam to
Tenant by any federal, state, or municipal authority, Tenant agrees that where
permitted by law, such taxes shall, without duplication of other amounts paid by
Tenant hereunder, be passed on to, and included in the bill of, and paid by
Tenant to Landlord. All payments hereunder shall be additional rent.
(B) Tenant's use of electric current and steam in and for the
demised premises shall not at any time exceed the capacity of any of the
existing electrical and steam feeders, risers, conductors, equipment and wiring
installation and/or pipes in or otherwise serving the demised premises or exceed
the existing electrical or steam capacity exclusively serving the demised
premises, except with Landlord's prior written consent as provided below, and
Tenant may not use any electrical or steam equipment which, in Landlord's
reasonable opinion, will overload such installations or interfere with the use
thereof by other tenants of the building. Tenant shall not make or perform or
permit the making or performing of, any alterations to wiring or other
electrical facilities or steam pipes or other steam facilities in or serving the
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demised premises without Landlord's prior written consent in each instance. Such
written consent shall not be unreasonably withheld or delayed by Landlord,
provided that, in Landlord's reasonable judgment, Tenant's alterations will not
cause permanent damage or injury to the building or the demised premises or
cause or create a dangerous or hazardous condition or interfere with or disturb
other tenants or occupants of the building (except that with respect to
alterations which are intended to increase amperage to the demised premises or
to increase the existing electrical or steam capacity exclusively serving the
demised premises, Landlord may withhold or delay its consent in Landlord's sole
discretion). The electrical and steam capacity servicing the demised premises as
of the date of this lease shall remain for Tenant's use during the term of this
lease.
(C) Landlord shall not be liable or responsible in any way to
Tenant for any failure or defect or change in the supply or character of
electric energy or steam furnished to the demised premises by reason of any
requirement, act or omission of the public utility serving the building with
electricity and steam or for any other reason whatsoever, nor shall interruption
or curtailment of any such services constitute a constructive or partial
eviction, nor entitle Tenant to any compensation or abatement or withholding of
rent, except for Landlord's willful misconduct or gross negligence or Landlord's
failure to pay its bills.
(D) Landlord reserves the right to discontinue furnishing
electric energy or steam to Tenant at any time upon sixty (60) days' written
notice to Tenant, and from and after the effective date of such termination,
Landlord shall no longer be obligated to furnish Tenant with electric energy or
steam, provided, however, that such termination date shall be extended for a
time reasonably necessary for Tenant to make arrangements utility company
servicing the building. If Landlord shall so discontinue furnishing electricity
or steam to Tenant, this lease shall remain unaffected thereby and shall
continue in full force and effect; and thereafter Tenant shall diligently
arrange to obtain electric service or steam directly from the public utility
company servicing the building, and may utilize the then existing electric or
steam feeders, risers, pipes and wiring serving the demised premises to the
extent available and safely capable of being used for such purpose and, with
respect to electric service, only to the extent of Tenant's then authorized
connected load. Landlord shall be obligated to pay no part of any cost required
for Tenant's direct electric or steam service. Landlord shall, in no event,
discontinue furnishing electricity or steam to Tenant until such time as Tenant
has obtained electricity or steam, as the case may be, directly from the public
utility.
(E) As soon as reasonably possible after the date of this Lease,
(i) Tenant shall diligently proceed, as a credit against Landlord's Work
Contribution (as hereinafter defined), to install and to make fully operational
steam and electricity meters and all equipment in connection therewith to
measure Tenant's demand for and consumption of electric energy and steam in the
demised premises. Until such electricity meters are fully operational, Tenant
shall pay Landlord additional rent at an annual rate of $50,361.00 for Tenant's
demand for and consumption of electricity in the demised premises until the date
Tenant shall have completed its initial improvements and first taken occupancy
of the demised premises for the purpose of conducting Tenant's normal office
operations and thereafter at an annual rate of $125,902.50. Until such steam
meters are fully operational, Tenant shall pay Landlord additional rent at an
annual rate of $25,180.50 for Tenant's consumption of steam in and for the
demised premises. Notwithstanding the foregoing, Tenant shall receive
electricity and steam at no charge for the period from the date of this lease
until the date (the "Electricity and Steam Charge Starting Date") which shall be
the first to occur of: (i) the 120th day after the date of this lease or (ii)
the date that Tenant shall first start performing improvements in the demised
premises which shall not be base building work (i.e., work affecting the
building fixtures and systems-existing in the demised premises on the date of
this lease),but work which is intended to improve the demised premises for
Tenant's particular use thereof.
Upon the first billing by Landlord to Tenant after the first
reading of such electricity and steam meters, the parties shall adjust the
amount paid by Tenant for the period after the Electricity and Steam Charge
Starting Date, and Tenant shall be responsible to pay, as additional rent, an
amount for Tenant's demand for and consumption of electricity and steam in and
for the demised premises for the period from the Electricity and Steam Charge
Starting Date until such first reading (calculated pursuant to Sub-Article (A)
of this Article) based upon Landlord's reasonable projection of the readings
from such meters for the period from the
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Electricity and Steam Charge Starting Date until such first reading, Tenant,
however, receiving a credit for all sums paid Landlord for electricity and steam
for the period from the Electricity and Steam Charge Starting Date until such
first reading. If the amount for which Tenant shall be responsible shall exceed
the credit, Tenant shall promptly pay the excess to Landlord within fifteen (15)
days after demand as additional rent. If the amount for which Tenant shall be
responsible shall be less than the aforementioned credit, Landlord shall give
Tenant a credit for such difference against the first amounts for fixed rent or
additional rent for which Tenant shall thereafter be liable.
(F) At Tenant's election, Tenant shall have the right to obtain
electric service or steam for the demised premises directly from the public
utility supplying the same. In such event, Tenant shall pay all costs, expenses
and any and all other amounts required in obtaining such service, and Landlord
shall no longer furnish Tenant with electricity or steam, as the case may be, as
otherwise hereinafter provided in this Article, and Tenant may utilize the then
existing electric and steam feeders, risers, pipes and wiring serving the
demised premises to the extent available and safely capable of being used for
such purpose and, with respect to electric service, only to the extent of
Tenant's then authorized connected load.
(G) (1) Tenant shall have the right for a period of 180 days after
the Commencement Date to give Landlord written notice (the back-up
Electricity Notice") that Tenant elects to receive up to 400 amperes of
"back-up" electricity (at 460/480 volts) from the building generator in the
event of failure of electricity from the public utility or other energy provider
serving the building, provided that if during such 180 day period any
prospective tenant or tenants of space in the building shall require "back-up"
electricity from the building generator and Landlord shall not have sufficient
capacity in excess of 400 amperes (at 460/480 volts) from the building generator
to meet the needs of such prospective tenant or tenants, Landlord may give
written notice of the deficiency ("Landlord's Initial Generator Notice") to
Tenant, and Tenant shall have ten (10) business days after Landlord's Initial
Generator Notice is given to Tenant to give Landlord the Back-up Electricity
Notice, provided further, that if Tenant shall fail to give Landlord the Back-up
Electricity Notice within such ten (10) business day period, Tenant shall be
deemed to have waived its right under this Sub-Article to receive the number of
amperes of "back-up" electricity (at 460/480 volts) representing the deficiency
set forth in Landlord's Initial Generator Notice, provided further that if
Tenant shall give Landlord the Back-up Electricity Notice within such ten (10)
business day period, Tenant shall be obligated to make the additional rent
payments (with respect to the number of amperes of back-up" electricity (at
460/480 volts) representing the deficiency set forth in Landlord's Initial
Generator Notice) set forth in the immediately succeeding sentence hereof for a
minimum of five (5) years (the "Minimum Period") from the Generator Payment
Commencement Date (as hereinafter defined). If Tenant shall give Landlord the
Back-up Electricity Notice as provided above, Tenant shall pay Landlord
additional rent per annum therefor equal to the product of (i) $100.00 and (ii)
the number of amperes of "back-up" electricity elected to be received (and not
previously waived) by Tenant in the Back-up Electricity Notice, payable in
monthly installments at the same time and in the same manner as the fixed rent
whether or not (i) there shall be any such failure of electricity or (ii) Tenant
shall be actually receiving such back-up electricity from the building
generator, commencing on the earlier of (x) the date that Tenant shall complete
its connection to the building generator or (y) the 90th day after the day
Tenant shall give Landlord the Back-up Electricity Notice (such earlier date,
the "Generator Payment Commencement Date").
(2) If at any time after Tenant shall have given Landlord the Back-up
Electricity Notice, another tenant or tenants, or prospective tenant or tenants,
of space in the building shall require "back-up" electricity from the building
generator and Landlord shall not have sufficient capacity in excess of the
number of amperes of "back-up" electricity elected by Tenant in the Back-up
Electricity Notice to meet the needs of such tenant or tenants or prospective
tenant or tenants, Landlord may give written notice or notices of the deficiency
(each a "Landlord's Second Generator Notice") to Tenant. Tenant shall thereupon
have ten (10) business days after a Landlord's Second Generator Notice is given
to Tenant to give Landlord notice (each a "Tenant's Generator Election Notice")
that Tenant either elects (i) to cancel its right to receive back-up electricity
under this Sub-Article with respect to the number of amperes of "back-up"
electricity (at 460/480 volts) representing the deficiency set forth in
Landlord's Second Generator Notice, in which case, Tenant, at Tenant's sole cost
and expense, within sixty (60) days after Tenant's Generator Election Notice
shall be given to Landlord, shall perform,
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complete and fully pay for the Disconnection Work (as hereinafter defined) with
respect to such number of amperes of "back-up" electricity (at 460/480 volts)
set forth in Landlord's Second Generator Notice, whereupon Tenant's liability
for additional rent payments for "back-up" electricity under this Sub-Article
with respect to such number of amperes of "back-up" electricity (at 460/480
volts) set forth in Landlord's Second Generator Notice shall cease (with the
last monthly installment therefor being prorated for the period of such month
prior to the day such Disconnection Work has been completed and fully paid for
by Tenant) or (ii) to be connected to the building generator with respect to the
number of amperes of "back-up" electricity (at 460/480 volts) representing the
deficiency set forth in Landlord's Second Generator Notice and to make
additional rent payments therefor as set forth in this SubArticle for the
Minimum Period from the day Tenant's Generator Election Notice electing this
clause (ii) is given to Landlord. If Tenant shall have failed to give Landlord
Tenant's Generator Election Notice on or prior to the tenth (10th) business day
after Landlord's Second Generator Notice shall have been given to Tenant, Tenant
shall be deemed to have elected to proceed pursuant to clause (i) of the
immediately preceding sentence and Tenant shall proceed to carry out the
provisions of such clause (i)(with such tenth (10th) business day being deemed,
for the purposes of such clause (i), to be the day that Tenant's Generator
Election Notice shall have been given to Landlord).
(3) Notwithstanding anything in this Sub-Article to the contrary
(x) as to any amounts of amperes of "back-up" electricity that Tenant has
elected to receive that are not subject to a Minimum Period and (y) as to any
amperes of "backup" electricity that are subject to a Minimum Period and for
which at least four (4) years of such Minimum Period have elapsed, Tenant shall
thereafter be free at Tenant's sole cost and expense, upon 180 days' prior
written notice to Landlord ("Tenant's Disconnection Notice"), to disconnect its
connection to the building generator and remove the equipment and wiring
previously providing such connection without damage to the building generator or
the rest of the building (referred to herein as the "Disconnection Work"), upon
Tenant's payment to Landlord, as additional rent, together with the giving of
Tenant's Disconnection Notice, of a lump sum equal to the aggregate of twelve
(12) additional monthly installment payments by Tenant pursuant to clause (1) of
this Sub-Article (G), in each case in respect of such amperes of "back-up"
electricity being disconnected. On the 180 day after Tenant's Disconnection
Notice shall have been given to Landlord, together with the lump sum payment
referred to in the immediately preceding sentence, provided that Tenant shall
have completed the Disconnection Work and fully paid therefor, Tenant's
liability for additional rent payments for back-up electricity in respect of
such amperes of "back-up" electricity being so disconnected under this
SubArticle shall cease (with the last monthly installment thereof being prorated
for the period of such month prior to such 180th day).
(4) If Tenant shall exercise the right to receive such back-up
electricity, to the extent such right shall not be waived pursuant to clause (1)
of this Sub-Article (G), Tenant shall pay all the costs and expenses of
connecting to the building generator and, to the extent such right shall not be
waived, cancelled or terminated, Tenant shall pay Landlord additional rent at
the rate of $0.14 per kilowatt hour for actual usage of such back-up
electricity. In connection with Tenant's disconnection to the building
generator, Tenant shall perform and complete, and fully pay for, the
Disconnection Work.
40. INTENTIONALLY OMITTED:
41. CONDITION OF PREMISES:
Neither Landlord nor Landlord's agents have made any representations
or promises with respect to the physical condition of the building, the land or
the demised premises, the rents, leases, retable square foot area, usable square
foot area, expenses of operation or any other matter or thing affecting or
related to the demised premises or the building except as herein expressly set
forth and no rights, easements, or licenses are acquired by Tenant by
implication or otherwise except as expressly set forth in the provisions of this
lease. Tenant acknowledges that Tenant has examined the demised premises, the
utility systems serving the building, demised premises, and all fixtures and
equipment in or serving the demised premises on the date hereof (including all
connection points to the Class E fire alarm system on the 16th floor of the
building (Landlord represents that all such points will be functional on the
Commencement Date), it being understood that no reprogramming charges shall be
passed through to Tenant in connection
<PAGE>
therewith)(which fixtures and equipment shall remain Landlord's property and
which Tenant shall not remove from the demised premises or the building and
which Tenant will repair and maintain throughout the term of this lease) and is
thoroughly acquainted with their condition and has accepted the condition
thereof "as-is," and acknowledges that the taking of possession of the demised
premises by Tenant shall be conclusive evidence that the building, the demised
premises and the aforementioned utility systems and fixtures and equipment were
in good and satisfactory condition at the time possession was taken (Landlord
represents that the overhead doors of loading bay #21, freight elevator #