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Exhibit
10.20
STANDARD FORM OF LOFT
LEASE
The Real Estate Board of New
York
AGREEMENT OF LEASE, made as
of this 15thday of March in the year 2007, between
11 West 19 th Associates LLC c/o Kaufman Management
Co. 450 7 th Avenue, New York, NY 10123 party of the first part, hereinafter
referred to as OWNER, and Epsilon Data Management LLC with offices
at 601 Edgewater Dr., Mailstop 5/406 party of the second part,
hereinafter referred to as TENANT, Wakefield, MA 01880.
WITNESSETH: Owner hereby
leases to Tenant and Tenant hereby hires from Owner the entire
9 th
and entire 10
l1
floors (the
“premises” or the “demised premises”) in
the building known as 11 West 19 th Street New York, NY 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 on the Commencement Date, herein defined, and
to end on January 31, 2018 (the “Expiration
Date”), and both dates inclusive, at the annual base rental
rate as set forth in Article 41 of rider made part of this lease,
which Tenant agrees to pay in lawful money of the United States
which shall be legal tender in payment of all debts and dues,
public and private, at the time of payment, in equal monthly
installments in advance on the first day of each month during said
term, at the office of Owner or such other place as Owner may
designate, without any setoff or deduction whatsoever, except as
set forth herein. Tenant shall pay the first (1 st ) monthly installment of annual
lease rent on the execution hereof. A portion of the building which
includes the demised premises is also known as 16 West 20
th
Street and Tenant shall have
right, vis a vis Owner, to use 16 West 20 th Street as its address.
The parties hereto, for
themselves, their heirs, distributes, executors, administrators,
legal representative, 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 general office
use.
provided such use is in accordance with
the certificate of occupancy for the building, if any, and for no
other purpose.
Alterations
:
3. Tenant shall make no
changes in or to the demised premises of any nature without
Owner’s prior written consent. Subject to obtaining the prior
written consent of Owner and to the provisions of this article,
which consent shall not be unreasonably withheld, delayed or
conditioned. Tenant, at Tenant’s expense, may make
alterations, installations, additions or improvements which are
nonstructural and which do not affect utility services or plumbing
and electrical lines, in or to the interior of the demised premises
using contractors or mechanics first reasonably approved in each
instance by Owner. Tenant shall, at its expense, before making any
alterations, additions, installations or improvements 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. Tenant
agrees to carry, and will cause Tenant’s contractors and
subcontractors to carry, such worker’s compensation,
commercial general liability, personal and property damage
insurance as Owner may reasonably 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 (30) days after notice to Tenant, at
Tenant’s expense, by payment or filing a bond as permitted by
law. All fixtures and all paneling, partitions, railings and like
installations installed in the demised 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 one hundred (100) days prior to
the date fixed as the termination of this lease, elects to
relinquish Owner’s right thereto and to have them removed by
Tenant, in which event the same shall be removed from the demised
premises by Tenant prior to the expiration of the lease, at
Tenant’s expense except that Tenant shall have no obligation
to remove the same unless they (a) are not generally usable by
other office tenants and (b) Owner so indicates to Tenant in
writing at the time Owner approves the plans for the installation
thereof. 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 same
from the demised premises, or upon removal of other installations
as may be required by Owner, Tenant shall immediately, and at its
expense, repair and restore the demised premises to the condition
existing prior to any such installations (normal wear and tear
excepted), 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
demised premises after Tenant’s removal shall be deemed
abandoned and may, at the election of Owner, either be retained as
Owner’s property or removed from the demised premises by
Owner, at Tenant’s expense.
Repairs
:
4. Owner shall keep in good
repair and condition the exterior of and the public portions of the
building and property on which it is located including, without
limitation, roofs and exterior windows (except those forming part
of the 20 th Street elevator lobby), all structural elements, and all
building plumbing, heating and life safety systems, and shall keep
all sidewalks free of snow and ice. Owner’s obligations
hereunder and under Article 31 shall be provided in a manner
consistent with comparable office
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buildings in the area. Tenant
shall, throughout the term of this lease, take good care of the
demised premises including the bathrooms and lavatory facilities
(if the demised premises encompass the entire floor of the
building), the interior windows and window frames and the exterior
windows forming a part of the 20 th Street elevator lobby, and the fixtures
and appurtenances therein, and at Tenant’s sole cost and
expense promptly make all repairs thereto and to the building,
whether structural or non-structural in nature, caused by, or
resulting from, the carelessness, omission, neglect or improper
conduct of Tenant, Tenant’s servants, employees, invitees, or
licensees, and whether or not arising from Tenant’s conduct
or omission, when required by other provisions of this lease,
including article 6. Tenant shall also repair all damage to the
building and the demised premises caused by the moving of
Tenant’s fixtures, furniture or equipment. All the aforesaid
repairs shall be of quality or class equal to the original work or
construction. If Tenant fails, after fifteen (15) days notice,
to proceed with due diligence to make repairs required to be made
by Tenant, the same may be made by Owner at the expense of Tenant,
and the expenses thereof incurred by Owner shall be collectible, as
additional rent, after rendition of a bill or statement therefore.
If the demised premises be or become infested with vermin, Tenant
shall, at its expense, cause the same to be exterminated. Tenant
shall give Owner prompt notice of any defective condition in any
plumbing, heating system or electrical lines located in the demised
premises and following such notice, Owner shall remedy the
condition with due diligence, but at the expense of Tenant if
repairs are necessitated by damage or injury attributable to
Tenant, Tenant’s servants, agents, employees, invitees or
licensees as aforesaid. Except as specifically provided in Article
9 or elsewhere in this lease, there shall be no allowance to Tenant
for a diminution of rental value and no liability on the part of
Owner by reason of inconvenience, annoyance or injury to business
arising from Owner, Tenant or others making or failing to make any
repairs alterations, additions or improvements in or to any portion
of the building or the demised premises, or in and to the fixtures,
appurtenances or equipment thereof. It is specifically agreed that
Tenant shall not be entitled to any setoff or reduction of rent by
reason of any failure of Owner to comply with the covenants of this
or any other article of this lease except as otherwise provided
herein. Tenant agrees, subject to the foregoing sentence, 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 with respect to the making of repairs shall not
apply in the case of fire or other casualty with regard to which
Article 9 hereof shall apply.
Window Cleaning
:
5. Tenant will not clean nor
require, permit, suffer or allow any window in the demised premises
to be cleaned from the outside in violation of Section 202 of
the New York Sate Labor Law or any other applicable law, or of the
Rules of the Board of Standards and Appeals, or of any other Board
or body having or asserting jurisdiction.
Requirements of Law,
Fire Insurance, Floor Loads :
6. Prior to the commencement
of the lease term, if Tenant is then in possession, and at all
times thereafter, Tenant shall at Tenant’s sole cost and
expense, promptly comply with all present and future laws, orders
and regulations of all state, federal, municipal and local
governments, departments, commissions and boards and any direction
of any public officer pursuant to
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law, and all orders, rules and
regulations to the Insurance Services Office, or any similar body
which shall impose any violation, order or duty upon Owner or
Tenant with respect to the demised premises, whether or not arising
out of Tenant’s use or manner of use thereof, or, with
respect to the building, if arising out of Tenant’s
particular use or manner of use of the demised premises of the
building (including the use permitted under the lease). Except as
provided in Article 30 hereof, nothing herein shall require Tenant
to make structural repairs or alterations unless Tenant has, by its
particular manner of use of the demised premises or method of
operation therein, violated any such laws, ordinances, orders,
rules, regulations or requirements with respect thereto. Tenant
shall not do or permit any act or thing 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, 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 and other
authority having jurisdiction, and then only in such manner and
such quantity so as not to increase the rate for fire insurance
applicable to the building, nor use this demised premises in a
manner which will increase the insurance rate for the building or
any property located therein over that in effect prior to the
commencement of Tenant’s occupancy. If by reason of failure
to comply with the foregoing the fire insurance rate shall, at the
beginning of this lease or at any time thereafter, be higher than
it otherwise would be, then Tenant shall reimburse Owner, as
additional rent hereunder for that portion of all fire insurance
premiums thereafter paid by Owner which, shall have been charged
because of such failure by Tenant. In any action or proceeding
wherein Owner and Tenant are parties, a schedule or
“make-up” or rate for the building or demised premises
issued by a body making fire insurance rates applicable to said
premises shall be conclusive evidence of the facts therein stated
and of the several items and 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 reserves the right to reasonably prescribe
the weight and position of all safes, business machines and
mechanical equipment. Such installations shall be placed and
maintained by Tenant, at Tenant’s expense, in settings
sufficient, in Owner’s reasonable judgment, to absorb and
prevent vibration, noise and annoyance.
Subordination
:
7. This lease is subject and
subordinate to all ground or underlying leases and to all mortgages
which may now or hereafter affect such leases or the real property
of which the demised premises are a part, and to all renewals,
modifications, consolidations, replacements and- extensions of any
such underlying leases and mortgages. This clause shall be
self-operative and no further instrument or subordination shall be
required by any ground or underlying lessor or by any mortgagee,
affecting any lease or the real property of which the demised
premises are a part. In confirmation of such subordination, Tenant
shall from time to time execute promptly any certificate that Owner
may request.
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Tenant’s Liability
Insurance Property Loss, Damages, Indemnity :
8. Owner or its agents shall
not be liable for any damage to property of Tenant or of others
entrusted to employees of the building, nor for loss of, or damage
to, any property of Tenant by theft or otherwise, nor for any
injury or damage to persons or property resulting from any cause of
whatsoever nature, unless caused by, or due to, the negligence or
willful acts of Owner, its agents, servants or employees; Owner or
its agents, shall not be liable for any damage caused by other
tenants or persons in, upon or about said building or caused by
operations in connection of any private, public or quasi public
work. If at any time any windows of the demised premises are
temporarily closed, darkened or bricked up (or permanently closed,
darkened or bricked up, if required by law) for any reason
whatsoever including, but not limited to, Owner’s own acts,
Owner shall not be liable for any damage Tenant may sustain
thereby, and Tenant shall not be entitled to any compensation
therefore nor abatement or diminution of rent, nor shall the same
release Tenant from its obligations hereunder nor constitute an
eviction. Tenant shall indemnify and save harmless Owner against
and from all liabilities, obligations, damages, penalties, claims,
costs and expenses for which Owner shall not be reimbursed by
insurance, including reasonable attorney’s fees, paid,
suffered or incurred as a result of any breach by Tenant,
Tenant’s agents, contractors, employees, invitees, or
licensees, of any covenant or condition of this lease, or the
carelessness, negligence or improper conduct of Tenant,
Tenant’s agents, contractors, employees, invitees or
licensees. Tenant’s liability under this lease extends to the
acts and omissions of any subtenant, and any agent, contractor,
employee, invitee or licensee of any subtenant. In case any action
or proceeding is brought against Owner by reason of any such claim,
Tenant, upon written notice from Owner, will, at Tenant’s
expense, resist or defend such action or proceeding by counsel
approved by Owner in writing, such approval not to be unreasonably
withheld.
Destruction, Fire and
Other Casualty :
9. (a) If the demised
premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall give immediate notice thereof to Owner and
this lease shall continue in full force and effect except as
hereinafter set forth, (b) If the demised premises are
partially damaged or rendered partially unusable by fire or other
casualty, the damages thereto shall be repaired by, and at the
expense of, Owner, and the rent and other items of additional rent,
until such repair shall be substantially completed, shall be
apportioned from the day following the casualty according to the
part of the demised 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 demised premises shall have been repaired
and restored by Owner (or sooner reoccupied in part by Tenant then
rent shall be apportioned as provided in subsection
(b) above), subject to Owner’s right to elect not to
restore the same as hereinafter provided, (d) If the demised
premises are rendered wholly unusable or (whether or not the
demised premises are damaged in whole or in part) if the building
shall be so damaged that Owner shall decide to demolish it or to
rebuild it, then, in any of such events, Owner may elect to
terminate this lease by written notice to Tenant, given within
ninety (90) days after such fire or casualty, or thirty
(30) days after adjustment of the insurance claim for such
fire or casualty, whichever is sooner, specifying a date for the
expiration of the lease, which date shall not be more than sixty
(60) days after the giving of such notice, and
5
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
demised premises without prejudice however, to Owner’s rights
and remedies against Tenant under the lease provisions in effect
prior to such termination, and any rent owing shall be paid up to
such date, and any payments of rent made by Tenant which were on
account of any period subsequent to such date shall be returned to
Tenant. Unless Owner shall serve a termination notice as provided
for herein, Owner shall make the repairs and restorations under the
conditions of (b) and (c) hereof, with all reasonable
expedition, subject to delays due to adjustment of insurance
claims, labor troubles and causes beyond Owner’s control.
After any such casualty, Tenant shall cooperate with Owner’s
restoration by removing from the demised premises as promptly as
reasonably possible, all of Tenant’s salvageable inventory
and movable equipment, furniture, and other property.
Tenant’s liability for rent shall resume five (5) days
after written notice from Owner that the demised 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 anything contained to the contrary in subdivisions
(a) through (e) hereof, including Owner’s
obligation to restore under subparagraph (b) above, each party
shall look first to any insurance in its favor before making any
claim against the other party for recovery for loss or damage
resulting from fire or other casualty, and to the extent that such
insurance is in force and collectible, and to the extent permitted
by law, Owner and Tenant each hereby releases and waives all right
of recovery with respect to subparagraphs (b), (d) and
(e) above, against the other or any one claiming through or
under each of them by way of subrogation or otherwise. The release
and waiver herein referred to shall be deemed to include any loss
or damage to the demised premises and/or to any personal property,
equipment, trade fixtures, goods and merchandise located therein.
The foregoing release and waiver shall be in force only if both
releasors’ insurance policies contain a clause providing that
such a release or waiver shall not invalidate the insurance. If,
and to the extent, that such waiver can be obtained only by the
payment of additional premiums, then the party benefiting from the
waiver shall pay such premium within ten (10) days after
written demand or shall be deemed to have agreed that the party
obtaining insurance coverage shall be free of any further
obligation under the provisions hereof with respect to waiver of
subrogation. Tenant acknowledges that Owner will not carry
insurance on Tenant’s furniture and/or furnishings or any
fixtures or equipment, improvements, or appurtenances removable by
Tenant, and agrees that Owner will not be obligated to repair any
damage thereto or replace the same, (f) Tenant hereby waives
the provisions of Section 227 of the Real Property Law and
agrees that the provisions of this article shall govern and control
in lieu thereof.
Eminent Domain
:
10. If the whole or any part
of the demised premises shall be acquired or condemned by Eminent
Domain for any public or quasi public use or purpose, then and in
that event, the term of this lease shall cease and terminate from
the date of title vesting in such proceeding and Tenant shall have
no claim for the value of any unexpired term of said lease. Tenant
shall have the right to make an independent claim to the condemning
authority for the value of Tenant’s moving expenses and
personal
6
property, trade fixtures and equipment,
provided Tenant is entitled pursuant to the terms of the lease to
remove such property, trade fixtures and equipment at the end of
the term, and provided further such claim does not reduce
Owner’s award.
Assignment Mortgage,
Etc. :
11. Tenant, for itself, its
heirs, distributees, executors, administrators, legal
representatives, successors and assigns, expressly covenants that
it shall not assign, mortgage or encumber this agreement, nor
underlet, or suffer or permit the demised premises or any part
thereof to be used by others, without the prior written consent of
Owner in each instance. Transfer of the majority of the stock of a
corporate Tenant or the majority interest in any partnership or
other legal entity which is 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,
undertenant 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, undertenant 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
way be construed to relieve Tenant from obtaining the express
consent in writing of Owner to any further assignment or
underlining.
Electric Current
:
12. Rates and conditions in
respect to submetering or rent inclusion, as the case may be, to be
added in RIDER attached hereto. Tenant covenants and agrees that at
all times its use of electric current shall not exceed the capacity
of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which,
in Owner’s opinion, reasonably exercised, will overload such
installations or interfere with the use thereof by other tenants of
the building. The change at anytime of the character of electric
service shall in no way make Owner liable or responsible to Tenant,
for any loss, damages or expenses which Tenant may
sustain.
Access to Premises
:
13. Owner or Owner’s
agents shall have the right (but shall not be obligated) to enter
the demised premises in any emergency at any time, and, at other
reasonable times, upon reasonable prior notice, to examine the same
and to make such repairs, replacements and improvements as Owner
may deem’ necessary and reasonably desirable to any portion
of the building, or which Owner may elect to perform in the demised
premises after Tenant’s failure to make repairs, or perform
any work which Tenant is obligated to perform under this lease, or
for the purpose of complying with laws, regulations and other
directions of governmental authorities. Tenant shall permit Owner
to use, maintain and replace pipes, ducts, and conduits in and
through the demised premises, and to erect new pipes, ducts, and
conduits therein provided, wherever possible, that they are within
walls or otherwise concealed. Owner may, during the progress of any
work in the demised premises, take all necessary materials and
equipment into said premises without the same constituting an
eviction, nor shall Tenant be entitled to any abatement of rent
while such work is in progress, nor to any damages by reason of
loss or interruption of business or otherwise. Throughout the term
hereof Owner shall have the right to enter the demised premises at
reasonable hours, upon
7
reasonable prior notice, for the purpose
of showing the same to prospective purchasers or mortgagees of the
building, and during the last six (6) months of the term for
the purpose of showing the same to prospective tenants, and may,
during said six months period, place upon the demised premises the
usual notices “To Let” and “For Sale” which
notices Tenant shall permit to remain thereon without molestation.
If Tenant is not present to open and permit an entry into the
demised premises, Owner or Owner’s agents may enter the same
whenever such entry may be necessary in an emergency by master key
or forcibly, and provided reasonable care is exercised to safeguard
Tenant’s property, such entry shall not render Owner or its
agents liable therefore, or in any event shall the obligations of
Tenant hereunder be affected.
Vault Vault Space,
Area :
14. No vaults, vault space or
area, whether or not enclosed or covered, not within the property
line of the building is leased hereunder, anything contained in or
indicated on any sketch, blue print or plan, 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, if used by Tenant,
whether or not specifically leased hereunder.
Occupancy
:
15. Tenant will not at any
time use or occupy the demised premises in violation of the
certificate of occupancy issued for the building of which the
demised premises are a part. In any event, Owner makes no
representation as to the condition of the demised premises and
Tenant agrees to accept the same subject to violations, whether or
not of record. If any governmental license or permit shall be
required for the proper and lawful conduct of Tenant’s
business, Tenant shall be responsible for, and shall procure and
maintain, such license or permit.
Bankruptcy
:
16. (a) Anything elsewhere in
this lease to the contrary notwithstanding, this lease may be
cancelled by Owner by the sending or 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 (or a
guarantor of any of Tenant’s obligations under this lease) as
the debtor; or (2) the making by Tenant (or a guarantor of any
of Tenant’s obligations under this lease) 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 by entitled to possession of the premises demised but
shall forthwith quit and surrender the demised 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.
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(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 fail” 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 the demised premises or any part
thereof be relet by the Owner for the unexpired term of said lease,
or any part thereof, before presentation of proof of such
liquidated damages to any court, commission or tribunal, the amount
of rent reserved upon such reletting shall be deemed to be the fair
and reasonable rental value for the part or the whole of the
demised premises so re-let during the term of the re-letting.
Nothing herein contained shall limit or prejudice the right of the
Owner to prove for and obtain as liquidated damages by reason of
such termination, an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing
the proceedings in which, such damages are to be proved, whether or
not such amount be greater, equal to, or less than the amount of
the difference referred to above.
Default :
17. (1) If Tenant
defaults in fulfilling any of the covenants of this lease other
than the covenants for the payment of rent or additional rent; or
if this lease be rejected under §365 of Title 11 of the U.S.
Code (Bankruptcy Code); or if any execution or attachment shall be
issued against Tenant or any of Tenant’s property whereupon
the demised premises shall be taken or occupied by someone other
than Tenant, or if a default shall occur under the Guaranty, as
hereinafter defined, in (a) the payment of any sums due
thereunder which shall continue for thirty (30) days after
notice of such non-payment to the guarantor thereunder,
(b) delivery of any estoppel certificate required to be
delivered pursuant thereto which shall not have been delivered
within ten (10) days after written notice that the time period
for delivery of the estoppel certificate as set forth in Section
lO.d of the guaranty has expired, (c) posting any required
security deposit within the time required thereunder or
(d) the breach if any representation, warranty or covenant
thereunder in any material respect which shall not be remedied
within thirty (30) days after notice to such guarantor, then
in any one or more of such events, upon Owner serving a written
thirty (30) days notice upon Tenant specifying the nature of
said default, and upon the expiration of said thirty
(30) days, if Tenant shall have failed to comply with or
remedy such default, or if the said default or omission complained
of shall be of a nature that the same cannot be completely cured or
remedied within said thirty (30) day period, and if Tenant
shall not have diligently commenced during such default within such
thirty (30) day period, and shall not thereafter with
reasonable diligence and in good faith, proceed to remedy or cure
such default, then Owner may serve a written five (5) days
notice of cancellation of this lease upon Tenant, and upon the
expiration of said five (5) days this lease and the term
thereunder shall end and expire as fully and completely as if the
expiration of such (5) day period were the day herein
definitely fixed for the end and expiration of this lease and the
term thereof and Tenant shall then quit and surrender the demised
premises to Owner but Tenant shall remain liable as hereinafter
provided.
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(2) If the notice provided
for in (1) hereof shall have been given, and the term shall
expire as aforesaid; or if Tenant shall be in 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 and such default shall continue for more
than ten (10) days after written notice from Owner; 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 demised premises as if this lease
had not been made, and Tenant hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that
end. If Tenant shall make default hereunder prior to the date fixed
as the commencement of any renewal or extension of this lease after
notice and expiration of any applicable cure period, Owner may
cancel and terminate such renewal or extension agreement by written
notice.
Remedies of Owner and
Waiver of Redemption :
18. In case of any such
default after expiration of any applicable grace period following
any required notice from Owner, re-entry, expiration and/or
dispossess by summary proceedings or otherwise, (a) the rent,
and additional rent, shall become due thereupon and be paid up to
the time of such re-entry, dispossess and/or expiration,
(b) Owner may re-let the demised premises or any part or parts
thereof, either in the name of Owner or otherwise, for a term or
terms, which may at Owner’s option be less than or exceed the
period which would otherwise have constituted the balance of the
term of this lease and may grant concessions or free rent or charge
a higher rental than that in this lease, (c) Tenant or the
legal representatives of Tenant shall also pay Owner as liquidated
damages for the failure of Tenant to observe and perform said
Tenant’s covenants herein contained, any deficiency between
the rent hereby reserved and/or covenanted to be paid and the net
amount, if any, of the rents collected on account of the subsequent
lease or leases of the demised premises for each month of the
period which would otherwise have constituted the balance of the
tern of this lease. The failure of Owner to re-let the demised
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 reletting the
demised premises, and the making of such alterations, repairs,
replacements, and/or decorations shall not operate or be construed
to release Tenant from liability hereunder as aforesaid. Owner
shall in no event be liable in any way whatsoever for failure to
re-let the demised premises, or in
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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, in 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.
Fees and Expenses
:
19. If Tenant shall default
in the observance or performance of any term or covenant on
Tenant’s part to be observed or performed under or by virtue
of any of the terms or provisions in any article of this lease,
after the expiration of any applicable notice and/or grace period,
if any, (except in an emergency), then, unless otherwise provided
elsewhere in this lease, Owner may immediately or at any time
thereafter, and without notice, perform the obligation of Tenant
thereunder. If Owner, in connection with the foregoing or in
connection with any default by Tenant in the covenant to pay rent
hereunder, makes any expenditures or incurs any obligations for the
payment of money, including but not limited to attorney’s
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 constituting an eviction and
without incurring liability to Tenant therefor to change the
arrangement and or location of public entrances, passageways,
doors, doorways, corridors, elevators, stairs, toilets or other
public parts of the building (but not the 20 th Street elevator lobby) and to change the
name, number or designation by which the building may be known.
Except as provided herein, there shall be no allowance to Tenant
for diminution of rental value and no liability on the part of
Owner by reason of inconvenience, annoyance or injury to business
arising from Owner or other Tenant making any repairs in the
building or any such alterations, additions and
improvements.
No Representations by
Owner :
21. Neither Owner nor
Owner’s agents have made any representations or promises with
respect to the physical condition of the building, the land upon
which it is erected or the demised premises, the rents, leases,
expenses of operation, or any other matter or thing affecting or
related to the demised premises 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 the taking of
possession of the demised premises by Tenant shall be conclusive
evidence that the said premises were in good and
satisfactory
11
condition at the time such possession
was so taken, except as to latent defects and punch list items. All
understandings and agreements heretofore made between the parties
hereto are merged in this contract, which alone fully and
completely expresses the agreement between Owner and Tenant and any
executory agreement hereafter made shall be ineffective to change,
modify, discharge or effect an abandonment of it in whole or in
part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification,
discharge or abandonment is sought.
End of Term
:
22. Upon the expiration or
other termination of the term of this lease, Tenant shall quit and
surrender to Owner the demised premises, “broom clean,”
in good order and condition, ordinary wear and damages which Tenant
is not required to repair as provided elsewhere in this lease
excepted, and Tenant shall remove all its property from the demises
premises. Tenant’s obligation to observe or perform this
covenant shall survive the expiration or other termination of this
lease. If the last day of the term of this lease, or any renewal
thereof, falls on Sunday this lease shall expire at 11:59 p.m. on
the preceding Saturday, unless it be a legal holiday, in which case
it shall expire at 11:59 p.m. on the preceding business day and in
such event the rent shall apportioned as of such earlier
date.
Quiet Enjoyment
:
23. Owner covenants and
agrees with Tenant that upon Tenant paying the rent and additional
rent and observing and performing all the terms, covenants and
conditions, on Tenant’s part to be observed and performed,
Tenant may peaceably and quietly enjoy the premises hereby demised,
subject, nevertheless, to the terms and conditions of this lease
including, but not limited to, Article 34 hereof, and to the ground
leases, underlying leases and mortgages hereinbefore
mentioned.
Failure to Give
Possession :
24. If Owner is unable to
give possession of the demised premises on the date of the
commencement of the term hereof because of the holding-over or
retention of possession of any tenant, undertenant or occupants, or
if the demised premises are located in a building being
constructed, because such building has not been sufficiently
completed to make the premises ready for occupancy or because of
the fact that a certificate of occupancy has not been procured, or
if Owner has not completed any work required to be performed by
Owner, or for any other reason, Owner shall not be subject to any
liability for failure to give possession on said date and the
validity of the lease shall not be impaired under such
circumstances, nor shall the same be construed in any way to extend
the term of this lease, but the rent payable hereunder shall be
abated (provided Tenant is not responsible for Owner’s
inability to obtain possession or complete any work required) until
after Owner shall have given Tenant notice that Owner is due to
deliver possession in the condition required by this lease. If
permission is given to Tenant to enter into possession of the
demised premises, or to occupy premises other than the demised
premises, prior to the date specified as the commencement of the
term of this lease, Tenant covenants and agrees that such
possession and/or occupancy shall be deemed to be under all the
terms, covenants, conditions and provisions of this lease, except
the obligation to pay the fixed annual rent set forth in page one
of this lease. The provisions of this article are intended to
constitute “an express provision to the contrary”
within the meaning of Section 223-a of the New York Real
Property Law.
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No Waiver :
25. The failure of Owner or
Tenant to seek redress for violation of, or to insist upon the
strict performance of, any covenant or condition of this lease, or
of any of the Rules or Regulations, set forth or hereafter adopted
by Owner, shall not prevent a subsequent act, which would have
originally constituted a violation, from having all the force and
effect of an original violation. The receipt by Owner of rent with
knowledge of the breach of any covenant of this lease shall not be
deemed a waiver of such breach, and no provision of this lease
shall be deemed to have been waived by Owner unless such waiver be
in writing signed by Owner. No payment by Tenant, receipt by Owner,
of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent,
nor shall any endorsement or statement of any check or any letter
accompanying any check or payment as rent be deemed an accord and
satisfaction, and Owner may accept such check or payment without
prejudice to Owner’s right to recover the balance of such
rent or pursue any other remedy in this lease provided. All checks
tendered to Owner as and for the rent of the demised premises shall
be deemed payments for the account of Tenant. Acceptance by Owner
of rent from anyone other than Tenant shall not be deemed to
operate as an attornment to Owner by the payor of such rent, or as
a consent by Owner to an assignment or subletting by Tenant of the
demised premises to such payor, or as a modification of the
provisions of this lease. No act or thing done by Owner or
Owner’s agents during the term hereby demised shall be deemed
an acceptance of a surrender of said premises, and no agreement to
accept such surrender shall be valid unless in writing signed by
Owner. No employee of Owner or Owner’s agent shall have any
power to accept the keys of said premises prior to the termination
of the lease, and the delivery of keys to any such agent or
employee shall not operate as a termination of the lease or a
surrender of the demised premises.
Waiver of Trial by
Jury :
26. It is mutually agreed by
and between Owner and Tenant that the respective parties hereto
shall, and they hereby do, waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto
against the other (except for personal injury or property damage)
on any matters whatsoever arising out of or in any way connected
with this lease, the relationship of Owner and Tenant,
Tenant’s use of or occupancy of demised 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 demised premises, Tenant will not interpose any
counterclaim, of whatever nature or description, in any such
proceeding, including a counterclaim under Article 4, except for
statutory mandatory counterclaims.
Inability to Perform
:
27. This lease and the
obligation of Tenant to pay rent hereunder and perform all of the
other covenants and agreements hereunder on part of Tenant to be
performed shall in no way 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 express or
impliedly, to be supplied, or is unable to make, or is delayed in
making, any repairs, additions, alterations or decorations, or is
unable to supply, or is delayed in supplying any equipment,
fixtures or other materials, if Owner is prevented or delayed from
doing so by reason of strike or labor troubles, or any cause
whatsoever
13
beyond Owner’s sole control
including, but not limited to, government preemption or
restrictions, or by reason of any rule, order or regulation of any
department or subdivision thereof of any government agency, or by
reason of the conditions which have been or are affected, either
directly or indirectly, by war or other emergency.
Bills and Notices
:
28. Except as otherwise in
this lease provided, any notice, statement, demand or other
communication required or permitted to be given, rendered or made
by either party to the other, pursuant to this lease or pursuant to
any applicable law or requirement of public authority, shall be in
writing (whether or not so stated elsewhere in this lease) and
shall be deemed to have been properly given, rendered or made, if
sent by registered or certified mail (express mail, if available)
return receipt requested, or by courier guaranteeing overnight
delivery and furnishing a receipt in evidence thereof, addressed to
the other party at the address hereinabove set forth (except that
after the date specified as the commencement of the term of this
lease, Tenant’s address, unless Tenant shall give notice to
the contrary, shall be the building), and shall be deemed to have
been given, rendered or made (a) on the date delivered, if
delivered to a party personally, (b) on the date delivered, if
delivered by overnight courier or (c) on the date which is
four (4) days after being mailed. Either party may, by notice
as aforesaid, designate a different address or addresses for
notices, statements, demand or other communications intended for
it. Notices given by Owner’s managing agent shall be deemed a
valid notice if addressed and set in accordance with the provisions
of this Article. Routine building operational notices may be hand
delivered to the demised premises.
Water Charges
:
29. If Tenant requires, uses
or consumes water for any purpose in addition to ordinary lavatory
purposes Owner may install a water meter at its expense and thereby
measure Tenant’s water consumption for all purposes.
Throughout the duration of Tenant’s occupancy, Owner shall
keep said meter and installation equipment in good working order
and repair If such separate metering is installed, Tenant agrees to
pay for water consumed, as shown on said meter as and when bills
are rendered, and in the event Tenant defaults in the making of
such payment, Owner may pay such charges and collect the same from
Tenant as additional rent. Tenant covenants and agrees to pay, as
additional rent, the sewer rent, charge or any other tax, rent or
levy which now or hereafter is assessed, imposed or a lien upon the
demised premises, or the realty of which they are a part, pursuant
to any law, order or regulation made or issued in connection with
the use, consumption, maintenance or supply of water, the water
system or sewage or sewage connection or system. Independently of,
and in addition to, any of the remedies reserved to Owner
hereinabove or elsewhere in this lease. Owner may sue for and
collect any monies to be paid by Tenant, or paid by Owner, for any
of the reasons or purposes hereinabove set forth.
Sprinklers
:
30. Anything elsewhere in
this lease to the contrary notwithstanding, if the New York Board
of Fire Underwriters or the New York Fire Insurance Exchange or any
bureau, department or official of the federal, state or city
government recommend or require the installation of a sprinkler
system, or that any changes, modifications, alterations or
additional sprinkler heads or other equipment be made or supplied
in an existing sprinkler system by reason of
Tenant’s
14
business, the location of partitions,
trade fixtures, or other contents of the demised premises, or for
any other reason, or if any such sprinkler system installations,
modifications, alterations, additional sprinkler heads or other
such equipment, become necessary to prevent the imposition of a
penalty or charge against the full allowance for a sprinkler system
in the fire insurance rate set by said Exchange or any other body
making fire insurance rates, or by any fire insurance company,
Tenant shall, at Tenant’s expense, promptly make such
sprinkler system installations, changes, modifications,
alterations, and supply additional sprinkler heads or other
equipment as required, whether the work involved shall be
structural or non-structural in nature.
Elevators, Heat,
Cleaning :
31. Owner shall:
(a) provide necessary passenger elevator facilities on
business days from 8 a.m. to 6 p.m. and on Saturdays from 8 a.m. to
1 p.m.; (b) provide freight elevator service free of charge
only on regular business days, Monday through Friday inclusive, and
on those days only between the hours of 9 a.m. and 12 noon and
between 1 p.m. and 5 p.m.; (c) furnish heat and other services
supplied by Owner to the demised premises, when and as required by
law, on business days from 8 a.m. to 9 p.m. and on Saturdays from 8
a.m. to 2 p.m.; (d) clean the public halls and public portions
of the building which are used in common by all tenants; and
(e) provide water at all times. Tenant shall, at
Tenant’s expense, keep the demised premises, including the
windows, clean and in order, to the reasonable satisfaction of
Owner, and for that purpose shall employ person or persons, or
corporations approved by Owner. Tenant shall pay to Owner the cost
of removal of any of Tenant’s refuse and rubbish from the
building. Bills for the same shall be rendered by Owner to Tenant
at such time as Owner may elect, and shall be due and payable
hereunder, and the amount of such bills shall be deemed to be, and
be paid as additional rent. Tenant shall, however, have the option
of independently contracting for the removal of such rubbish and
refuse in the event that Tenant does not wish to have same done by
employees of Owner. Under such circumstances, however, the removal
of such refuse and rubbish by others shall be subject to such rules
and regulations as, in the judgment of Owner, are necessary for the
proper operation of the building. Owner reserves the right to stop
services of the heating, elevator, plumbing and electric systems,
when necessary, by reason of accident or emergency or for repairs,
alterations, replacements or improvements, which in the judgment of
Owner are desirable or necessary to be made, until said repairs,
alterations, replacements or improvements shall have been
completed. If the building of which the demised premises are a part
supplies manually operated elevator service, Owner may proceed
diligently with alterations necessary to substitute automatic
control elevator service without in any affecting the obligations
of Tenant hereunder.
See article #69
Security :
32. Tenant has deposited with
Owner the sum of $0 as security for the faithful performance and
observance by Tenant of the terms, provisions and conditions of
this lease. It is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this
lease including, but not limited to, the 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
15
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 there-letting of the demised
premises, whether such damages or deficiency accrued before or
after summary proceedings or other re-entry by Owner. In the case
of every such use, application or retention, Tenant shall, within
five (5) days after demand, pay to Owner the sum so used,
applied or retained which shall be added to the security deposit so
that the same shall be replenished to its former amount. 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 within ten (10) days
after the date fixed as the end of the lease, and after delivery of
entire possession of the demised premises to Owner and payment by
Tenant of all billed invoices. In the event of a sale of the land
and building or leasing of the building, of which the demised
premises form a part, Owner shall have the right to transfer the
security to the vendee or lessee, and Owner shall thereupon be
released by Tenant from all liability for the return of such
security, and Tenant agrees to look to the new Owner solely for the
return of said security, and it is agreed that the provisions
hereof shall apply to every transfer or assignment made of the
security to a new Owner. Tenant further covenants that it will not
assign or encumber, or attempt to 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.
Captions :
33. The Captions are inserted
only as a matter of convenience and for reference,, and in no way
define, limit or describe the scope of this lease nor the intent of
any provision thereof.
Definitions
:
34. The term
“Owner” as used in this lease means only the owner of
the fee or of the leasehold of the building or the 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 or conveyance, assignment or transfer of said land
and building or of said lease, or in the event of a lease of said
building, or of the land and building the said Owner shall be and
hereby is entirely freed and relieved of all covenants and
obligations of Owner hereunder, to the extent 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
“rent” includes the annual rental rate whether so
expressed or expressed in monthly installments, and
“additional rent.” “Additional rent” means
all sums which shall be due to Owner from Tenant under this lease,
in addition to the annual rental rate. The term “business
days” as used in this lease, shall exclude Saturdays, Sundays
and all days observed by the State or Federal Government as legal
holidays, and those designated as holidays by the applicable
building service union employees service contract, or by the
applicable Operating Engineers contract with respect to HVAC
service. Wherever it is expressly provided in this lease that
consent shall not be unreasonably withheld, such consent shall not
be unreasonably delayed.
16
Adjacent
Excavation-Shoring :
35. If an excavation shall be
made upon land adjacent to the demised premises, or shall be
authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, a license to enter upon the
demised premises for the purpose of doing such work as said person
shall deem necessary to preserve the wall of the building, of which
demised premises form a part, from injury or damage, and to support
the same by proper foundations, without any claim for damages or
indemnity against Owner, or diminution or abatement of
rent.
Rules and Regulations
:
36. Tenant and Tenant’s
servants, employees, agents, visitors, and licensees shall observe
faithfully, and comply strictly with, the Rules and Regulations
annexed hereto and such other and further reasonable Rules and
Regulations as Owner or Owner’s agents may from time to time
adopt. Notice of any additional Rules or Regulations shall be given
in such manner as Owner may elect. In case Tenant disputes the
reasonableness of any additional Rules or Regulations hereafter
made or adopted by Owner or Owner’s agents, the parties
hereto agree to submit the question of reasonableness of such Rules
or Regulations 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 Rules or Regulations upon
Tenant’s part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing, upon Owner, within
fifteen (15) days after the giving of notice thereof. Nothing
in this lease contained shall be construed to impose upon Owner any
duty or obligation to enforce the Rules and Regulations or terms,
covenants or conditions in any other lease, as against any other
tenant, and Owner shall not be liable to Tenant for violation of
the same by any other tenant, its servants, employees, agents,
visitors or licensees. Owner shall not, however, enforce any Rules
and Regulations in a discriminatory manner. Notwithstanding any
other provision hereof, in the event of an inconsistency between
the Rules and Regulations and this lease, the provisions of this
lease shall prevail.
Glass :
37. Owner shall replace, at
the request and expense of Tenant, any and all plate and other
glass damaged or broken from any cause whatsoever outside the
20 th Street elevator lobby. Bills for the premiums therefore shall
be rendered by Owner to Tenant at such times as Owner may elect,
and shall be due from, and payable by Tenant when rendered, and the
amount thereof shall be deemed to be, and be paid as, additional
rent
38. SEE RIDER
Directory Board
Listing :
39. If, at the request of,
and as accommodation to, Tenant, Owner shall place upon the
directory board in the lobby of the building, one or more names of
persons or entities other than Tenant, such directory board listing
shall not be construed as the consent by Owner to an assignment or
subletting by Tenant to such persons or entities.
Successors and Assigns
:
40. The covenants, conditions
and agreements contained in this lease shall bind and inure to the
benefit of Owner and their respective heirs, distributees,
executors, administrators, successors, and except as otherwise
provided in this lease, their assigns.
17
IMPORTANT - PLEASE
READ
RULES AND REGULATIONS
ATTACHED TO AND MADE A PART OF THIS LEASE IN ACCORDANCE WITH
ARTICLE 36.
1. The sidewalks, entrances,
(other than the 20 th Street elevator lobby) driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed
or encumbered by 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 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 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. The
20 th Street elevator lobby is not part of the demised
premises.
2. The water and wash closet
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 substance shall be
deposited therein, and the expense of any breakage, stoppage, or
damage resulting from the violation of this rule shall be borne by
Tenant, whether or not caused by Tenant, its clerks, agents,
employees or visitors.
3. No carpet, rug or other
article shall be hung or shaken out of any window of the building;
and Tenant shall not sweep or throw, or permit to be swept or
thrown substances from the demised premises, any dirt or other
substance into any of the corridors of halls, elevators, or out of
the doors or windows or stairways of the building, and Tenant shall
not use, keep, or permit to be used or kept, any foul or noxious
gas or substance in the demised premises, or permit or suffer the
demised premises to be occupied or used in a manner offensive or
objectionable to Owner or other occupants of the buildings by
reason of noise, odors, and or vibrations, or interfere in any way,
with other tenants or those having business therein, nor shall any
bicycles, vehicles, animals, fish or birds be kept in or about the
building. Smoking or carrying lighted cigars or cigarettes in the
elevators of the building is prohibited.
4. No awnings or other
projections shall be attached to the outside walls of the building
without the prior written consent of Owner.
5. No sign, advertisement,
notice or other lettering shall be exhibited, inscribed, painted or
affixed by Tenant on any part of the outside of the demised
premises or the building, or on the inside of the demised premises
if the same is visible from the outside of the demised premises,
without the prior written consent of Owner, except that the name of
Tenant may appear on the entrance door of the demised premises. In
the event of the violation of the foregoing by Tenant, Owner may
remove same without any liability, and may charge the expense
incurred by such removal to Tenant. Interior signs on doors and
directory tablet shall be inscribed, painted, or affixed for Tenant
by Owner at the expense of Tenant, and shall be of a size, color
and style acceptable to Owner.
6. Tenant shall not mark,
paint, drill into, or in any way deface any part of the demised
premises or the building of which they form a part. No boring,
cutting, or stringing of wires shall be permitted, except with the
prior written consent of Owner, and
18
as Owner may direct. Tenant shall not
lay linoleum, or other similar floor covering, so that the same
shall come in direct contact with the floor of the demised
premises, and, if linoleum or other similar floor covering is
desired to be used, an interlining of builder’s deadening
felt shall be first affixed to the floor, by a paste or other
material, soluble in water, the use of cement or other similar
adhesive material being expressly prohibited.
7. No additional locks or
bolts of any kind shall be placed upon any of the doors or windows
by Tenant. Nor shall any changes be made in exiting locks or
mechanism thereof. 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, Tenant, and
in the event of the loss of any keys, so furnished, 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 demised premises only on
the freight elevators and through the service entrances and
corridors, and only during hours, and in a manner approved by
Owner. Owner reserves the right to inspect all freight to be
brought into the building, and to exclude from the building all
freight which violates any of these Rules and Regulations of the
lease, of which these Rules and Regulations are a part.
9. Tenant shall not obtain
for use upon the demised premises ice, drinking water, towel and
other similar services, or accept barbering or bootblacking
services in the demised premises, except from persons authorized by
Owner, and at hours and under regulations fixed by Owner.
Canvassing, soliciting and peddling in the building is prohibited
and 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. Tenant shall
be responsible for all persons for whom it requests such pass, and
shall be liable to Owner for all acts of such persons.
Notwithstanding the foregoing, Owner shall not be required to allow
Tenant or any person to enter or remain in the 19
th
Street entrance or the
20 th Street building entrance (as contrasted with the 20
lh
Street elevator lobby
entrance), except on business days from 8:00 a.m. to 6:00 p.m. and
on Saturdays from 8:00 a.m. to 1:00 p.m. Tenant shall not have a
claim against Owner by reason of Owner excluding from the building
any person entering the 19 th Street entrance or the 20 th Street building entrance (as contrasted with the 20
th
Street elevator lobby
entrance) who does not present such pass.
11. Owner shall have the
right to prohibit any advertising by Tenant which in Owner’s
opinion, tends to impair the reputation of the building or its
desirability as a loft building, and upon written notice from
Owner, Tenant shall refrain from or discontinue such
advertising.
12. Tenant shall not bring,
or permit to be brought or kept, in or on the demised premises, any
inflammable, combustible, explosive, or hazardous fluid, material,
chemical or substance, or cause or permit any odors of cooking or
other processes, or any unusual or other objectionable odors, to
permeate in, or emanate from, the demised premises.
13. Tenant shall not use the
demised premises in a manner which disturbs or interferes with
other tenants in the beneficial use of their premises.
19
14. 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. Tenant shall remove, or cause to be
removed by a contractor acceptable to Owner, at Owner’s sole
discretion, such items as Owner may expressly designate.
(2) Owner’s Rights in Event of Noncompliance. Owner has
the option to refuse to collect or accept from Tenant waste
products, garbage, refuse or trash (a) that is not separated
and sorted as required 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 14, and, at Tenant’s sole cost and expense,
shall indemnify, defend and hold Owner harmless (including
reasonable legal fees and expenses) from and against any actions,
claims and suits arising from such noncompliance, utilizing counsel
reasonably satisfactory to Owner.
20
IN WITNESS WHEREOF, Owner and Tenant
have respectively signed and sealed this lease as of the day and
year first above written.
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| Witness
for Owner |
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11 West 19 th Associates LLC |
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By: |
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Block
Buildings LLC, Manager |
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By: |
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Thomas
Block, President |
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Or by
Gordon, Girvin, CFO |
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Or by
Robert Heun, VP |
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| Witness for
Tenant: |
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Epsilon Data Management LLC |
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By: |
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Alan M
Utay, Vice President |
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and
Secretary |
ACKNOWLEDGEMENT
STATE OF TEXAS,
ss.
COUNTY OF COLLIN
On the 9th day of
March in the year 2007, before me, the undersigned, a Notary Public
in and for said State, personally appeared Alan M. Utay ,
personally known to me or proved to me on the basis of
satisfactory evidence to the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledges to me that
he/she/they executed the same in his/her/their capacity(ies), and
that by his/her/their signature(s) on the instrument, the
individuals), or the person upon behalf of which the individual(s)
acted, executed the instrument.
21
RIDER ATTACHED AND MADE PART
OF LEASE DATED: March 15, 2007
-between-
11 WEST 19TH ASSOCIATES
LLC
OWNER
- and -
EPSILON DATA MANAGEMENT
LLC
for space consisting of the
entire 9th and entire 10th floors
in building located
at
11 West 19th Street, New
York, New York
If and to the extent that any of the
provisions of this Rider conflict or are otherwise inconsistent
with any of the preceding provisions of this lease, or of the Rules
and Regulations attached to this lease or hereafter adopted,
whether or not such inconsistency is expressly noted in this Rider,
the provisions of this Rider shall prevail.
| 41. |
Free Rent / Rental Schedule : |
TENANT shall not be required to pay base
rent until the Rent Commencement Date, as hereinafter defined.
TENANT shall be responsible for the payment of electric charges
commencing on the Commencement Date, as hereinafter
defined.
TENANT shall pay to OWNER base rental as
follows:
PERIOD: Rent Commencement Date through
January 31, 2008 $2,177,864.00 per annum, ($181,488.67 per
month);
PERIOD: February 1, 2008 through
January 31, 2009 $2,215,977.00 per annum, ($184,664.75 per
month);
PERIOD: February 1, 2009 through
January 31, 2010 $2,254,756.00 per annum, ($187,896.33 per
month);
PERIOD: February 1, 2010 through
January 31, 2011 $2,294,214.00 per annum, ($191,184.50 per
month);
PERIOD: February 1, 2011 through
January 31, 2012 $2,334,363.00 per annum, ($194,530.25 per
month);
PERIOD: February 1,2012 through
January 31,2013 $2,577,807.00 per annum, ($214,817.25 per
month);
PERIOD: February 1, 2013 through
January 31, 2014 $2,622,918.00 per annum, ($218,576.50 per
month);
PERIOD: February 1, 2014 through
January 31, 2015 $2,668,819.00 per annum, ($222,401.58 per
month);
PERIOD: February 1, 2015 through
January 31, 2016 $2,715,524.00 per annum, ($226,293.67 per
month);
PERIOD: February 1, 2016 through
January 31, 2017 $2,763,045.00 per annum, ($230,253.75 per
month);
PERIOD: February 1, 2017 through
January 31, 2018 $2,811,399.00 per annum, ($234,283.25 per
month).
| 42. |
Condition of Delivery of Premises : |
A) OWNER shall perform and pay for the
following work (“Owner’s Work”) as a condition of
delivery of the demised premises, said work to commence promptly
following lease signing:
1) Subject to the provisions of
Section 45E hereof, OWNER shall deliver base building HVAC
units to provide sixty (60) tons of air conditioning to each
floor of the demised premises; provided, however, TENANT shall be
obligated to perform all work necessary to install such units in
the demised premises (including, without limitation, the
performance of all ductwork).
2) OWNER shall renovate the
bathrooms on each of the floors of the demised premises in a
building standard manner {i.e., one (1) men’s and
one (1) women’s per floor), using fixtures and finishes
similar to the sixth (6 th ) floor bathroom. Such bathrooms shall be handicap
accessible and otherwise be in compliance with all applicable legal
requirements.
3) OWNER shall provide building standard
fireproofing throughout the demised premises as needed.
4) OWNER shall install new 3/4 inch
plywood flooring throughout the demised premises.
5) OWNER shall sound-proof the water
pump room located on the 10th floor.
The “Commencement Date”
shall be the first non-holiday weekday after the Delivery
Requirements (as defined below) have been satisfied and TENANT has
been provided full access to the demised premises. The
“Delivery Requirements” shall mean the occurrence of
all of the following conditions: (i) the demised premises are
vacant, broom clean, free of all tenants and occupants,
(ii) all building systems serving the demised premises are
fully operational, (iii) access to the demised premises and
all elevators and other facilities serving the demised premises are
in good working order and readily available, (iv) that
Owner’s Work is complete, and (v) that the Design Build
Program (as defined in Article 45 hereof) is complete, other than
“punchlist” items and the demised premises are in
compliance with all applicable laws and other governmental
requirements and that any applicable governmental permits and
approvals necessary to permit TENANT to occupy the demised premises
for general office purposes have been obtained. The phrase
“punchlist items” shall mean (a) minor or
insubstantial details of construction, mechanical adjustment or
decoration which remain to be performed and (ii) portions of
Owner’s Work or the Design Build Program which have not been
completed because under good construction scheduling practice such
work should be done after still incomplete finishing or other work
to be done by or on behalf of TENANT is completed. OWNER shall give
TENANT not less than two (2) business days prior written
notice of the actual Commencement Date.
Notwithstanding any other provision
hereof, TENANT shall have the right to enter upon the demised
premises from and after July 23, 2007 for the purpose of
fixturing and to otherwise prepare the demised premises for its
occupancy provided that such entry does not delay the Delivery
Requirements. Any such early entry by TENANT shall be subject to
all the terms and provisions hereof except that TENANT shall not be
required to pay base rent or additional rent during such period of
early occupancy.
Subject to the terms of Article 45
hereof, The “Rent Commencement Date” shall be the date
which is the later to occur of (i) October 1, 2007, and
(ii) forty-four (44) days after the Commencement
Date.
B) Electricity : OWNER, at its
cost, shall deliver electrical capacity to the demised premises at
points reasonable determined by OWNER. The electrical service shall
be capable of supporting TENANT’S electrical loads up to a
maximum connected load of 12 volt-amperes per useable square foot
inclusive of TENANT’S lighting, air conditioning, and general
power loads. OWNER shall furnish this electrical capacity to the
demised premises on a submetered basis and TENANT covenants and
agrees to purchase same from OWNER or OWNER’S designated
agent in accordance with the electrical rider attached hereto.
Notwithstanding anything to the contrary, OWNER represents that 6
watts per usable square foot for normal office use excluding
air-conditioning will be delivered to the demised premises
throughout the term.
C) Freight Elevators : OWNER
shall provide and TENANT shall be permitted to use the freight and
passenger elevators on a non-exclusive basis for construction and
move-in during normal business hours at no charge. Usage of freight
elevators other than during normal business hours (both during
construction, move-in and ongoing) will be provided by OWNER
subject to additional charges. The present hourly charge for
after-hours elevator usage is $235.00 per hour.
D) Shaft Space : OWNER will
provide to TENANT TENANT’S proportionate share of secure
shaft space from the Telecom “Point of Entry” in tire
building to the premises. TENANT shall have the right to choose its
own telecommunications provider.
2
E) Life Safety Systems : OWNER
shall provide, at its cost, a base building fire alarm system
capable of supporting typical office space on each floor of the
demised premises with a maximum of 10 zones per floor for
connection to the fire alarm devices to be installed by Owner as
part of the Design Build Program. Under the Design Build Program
Owner shall install a complete fire alarm system coverage on the
floors as required by governmental agencies having
jurisdiction.
F) Sprinkler : OWNER, at its
cost, will deliver a building sprinkler system the capacity of
which will be sufficient to service a sprinkler distribution system
throughout the demised premises meeting the NYC building codes.
Such sprinkler distribution system will be performed and paid for
as part of the Design Build Program.
G) ACP-5 Certificate :
OWNER shall deliver an ACP-5 Certificate to TENANT promptly after
lease execution covering the demised premises and the 20
th
Street elevator
lobby.
| 43. |
20th Street Lobby and Elevators; |
A) The existing mechanical
system associated with the 20th Street elevators shall be upgraded
by OWNER, at its cost, per specifications attached as Exhibit A.
OWNER will also perform a cosmetic renovation on each of the two
(2) 20 l Street elevator cabs which services the demised premises (each,
an “Elevator Cab”, collectively, the “Elevators
Cabs”) at a cost of $25,000 per Elevator Cab. In the event
that TENANT, at its election, desires a higher standard of cosmetic
upgrade than $25,000 per cab will provide, TENANT shall pay any
additional cost to upgrade the Elevator Cabs provided that it has
first approved such additional cost in writing. Such upgrade and
renovation work will begin and be completed within the first 36
months of the term. TENANT will have design input only with respect
to the cab design but must respond promptly. Upon completion of.
such mechanical upgrade and renovation work, OWNER will also assign
to TENANT any and all warranties in OWNER’S possession
relating to the two (2) 20 th Street elevators servicing the demised premises (collectively,
the “Elevators”). Notwithstanding any other provision
hereof, if OWNER fails to complete such mechanical upgrade and
cosmetic renovation work within such 36 month period, TENANT shall
have the right to perform such work and all costs expended by
TENANT in connection therewith may, at TENANT’S option, be
offset against rent due hereunder. OWNER will be responsible for
the general maintenance and repair of the Elevators until the
upgrade and renovation is completed.
B) Upon completion of the upgraded
mechanical system and cosmetic renovation of the Elevator Cabs,
TENANT shall be responsible, at its own cost and expense, for the
operation and maintenance of the Elevators (but not for capital
expenditures which are not covered by warranties or the elevator
service contract) using OWNER’S designated elevator
maintenance company provided such company is competent and accepts
competitive terms and conditions. Any expenditures of a capital
nature which are not covered by warranties or the elevator service
contract shall be performed by OWNER, at OWNER’S expense,
however, TENANT shall reimburse OWNER, on a monthly basis for a pro
rata share of such expenditures. TENANT’S pro
rata share shall determined by fully amortizing the
expenditures, without interest, over the useful life of the item
and charging to TENANT the monthly amortizable amount during each
remaining month of the term after such work is completed until such
expenditure has been fully amortized or the term ends, whichever
shall first occur.
C) Subject to compliance with
Articles 3 and 54 of this lease, at any time after the execution
and delivery of this lease TENANT shall have the right to enter
upon and perform alteration and remodeling work in the 20
th
Street elevator lobby of the
building. Further, notwithstanding any other provision hereof,
OWNER will provide a $100,000 rent credit towards improvements on
the 20th Street elevator lobby. Said credit must be used within 18
months of Commencement Date (subject to delays in such work caused
by OWNER or due to force majeure), or any unused portion will be
forfeited. Credit will be given upon TENANT providing OWNER with
paid construction bills and lien waivers in connection with such
lobby improvements. Amounts spent by TENANT for this work up to
$100,000, plus interest, must be included in the termination
payment under Section 45.
D) TENANT, at TENANT’S
expense, shall be permitted to install its own security system
(which may be a card access security system) in the premises and/or
the 20th Street elevator lobby. Further, prior to the Commencement
Date, OWNER, at its expense, will tie-in its fire safety system to
provide emergency exit to 20th Street from the fire stairs leading
to the 20 th
3
Street elevator lobby. OWNER
will limit access for all other floors other than TENANT’S to
such stairwell that leads to the 20th Street elevator lobby for
emergency purposes only. It is further understood and agreed that
in the event the 19th Street elevators become inoperable due to an
unforeseen event, TENANT will grant non-related tenants elevator
reasonable access until such time 19th Street elevators are
returned to service (which OWNER shall cause to occur as soon as
practicable); otherwise the 20 th Street elevator lobby shall be exclusively for TENANT’S
use. Notwithstanding the foregoing, if any such use of the
20 th Street elevator lobby by other building tenants, whether
pursuant to this Section 43.C or Section 44A, below,
exceeds ten (10) days, then OWNER shall pay to TENANT, within
ten (10) days of receipt of written invoice, a pro-rata share
of the costs of maintaining and operating the 20 th Street elevator lobby and the elevators
therein, including the cost of the security services provided for
such lobby, as such pro rata share is reasonably determined by
TENANT.
| 44. |
19th Street Lobby and Elevators: |
A) Elevators/Fire Stairs: OWNER will
install new elevator cabs and mechanicals in the 19th Street lobby
passenger elevators on or before May 31, 2008. OWNER shall
operate all elevators within the elevator bank servicing the
premises at all times during building hours, subject to emergencies
and repairs and maintenance and at all other times will provide at
least two passenger elevators subject to call. It is further
understood and agreed that during the renovation of the 19th Street
elevators, non-related tenants shall have access to the 20th Street
elevators, subject to Section 43C above.
B) Building Services/Access: TENANT will
have access to the premises seven (7) days per week, subject
to closure for emergencies and as required by law, twenty-four
(24) hours per day. OWNER shall provide heating and air
conditioning to the building lobbies and heat to the premises
Monday thru Friday 8:00 a.m. to 9:00 p.m. and Saturday from 8:00
a.m. to 2:00 p.m. consistent with the operation of similar office
buildings. [After hours heat will be provided to the demised
premises, at TENANT’S request and at TENANT’S cost but
such cost shall be equal to the cost to OWNER to provide the same
without markup, overhead or profit.]
| 45. |
Design/Build Program : |
A) Following the receipt of the Approved
Plans (as hereinafter defined), OWNER shall cause the work set
forth in such Approved Plans for the Design Build Program (as
hereinafter defined) to be performed by StructureTone, Inc.
(“StructureTone”) substantially in accordance with the
Approved Plans. The budget (the “Budget”), construction
schedule (the “Construction Schedule”) and design
criteria/plans (the “Design Plans”) of the Design
Building Program are attached hereto and made a part hereof as
Exhibits D-l, D-2 and D-3, respectively. Subject to any TENANT
Delay, as defined in Section 45D hereof, OWNER shall use
commercially reasonable efforts to substantially complete the
Design Build Program in accordance with the Construction Schedule,
without being obligated to employ overtime labor or to incur any
extraordinary costs in connection therewith.
B) OWNER and TENANT have agreed upon a
price for the hard and soft costs of the Design Build Program of
$5,064,800.00 (the “Design Build Allowance”) based upon
the Budget and the Designed Plans. OWNER shall contribute the sum
of $2,026,000.00 (“OWNER’S Portion”) toward the
Design Build Allowance and TENANT shall contribute the sum of
$3,038,800.00 (“TENANT’S Portion”) toward the
Design Build Allowance. Any hard and soft costs of the Design Build
Program in excess of the Design Build Allowance shall be paid by
OWNER, except that TENANT shall be responsible for any cost
increases above the Design Build Allowance as a result of any
“change orders” requested by TENANT, provided that
TENANT has first approved the amount of the cost increase for the
change order in writing (“TENANT Change Order
Increases”). Any such TENANT Change Order Increases shall be
payable in accordance with the procedures set forth in
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