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Please fill in the definition that can. be found in the attached abstract. do not use google !!!!!!!!!!!!!THIS AGREEMENT OF LEASE (this “Lease”), made as of this ___ day of _________________, 2017 (the “Effective Date”) by and between LANDLORD LLC, having an office at 3 Magellan Circle, Suite 2300, New York, New York 10019 (“Landlord”) and WHOLEASE 72, LLC, a New York limited liability company, having an address at 72 Jefferson Avenue, New York, New York 10016 (“Tenant”). 1. BASIC LEASE TERMS..BASIC LEASE TERMS. A. Definitions.Definitions. The following definitions contained in this subsection A of this Article 1 shall have the meanings hereinafter set forth used throughout this Lease and the Exhibits and Schedules (if any) annexed hereto and made a part hereof.
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THIS AGREEMENT OF LEASE (this “Lease”), made as of this ___ day of _________________, 2017
(the “Effective Date”) by and between LANDLORD LLC, having an office at 3 Magellan Circle, Suite
2300, New York, New York 10019 (“Landlord”) and WHOLEASE 72, LLC, a New York limited
liability company, having an address at 72 Jefferson Avenue, New York, New York 10016
(“Tenant”).
1.
BASIC LEASE TERMS.
A.
Definitions.
The following definitions contained in this subsection A of this
Article 1 shall have the meanings hereinafter set forth used throughout this Lease and the Exhibits
and Schedules (if any) annexed hereto and made a part hereof.
(i)
“Additional Rent” shall mean any and all amounts which are or become
due and owing under the terms of this Lease which are not Base Rent.
(ii)
“Base Tax Year” shall mean the Tax Year beginning July 1, 2018 and
expiring June 30, 2019.
(iii)
“Broker(s)” shall mean Skyfall Leasing LLC, as agent for the Tenant.
(iv)
“Building” the building known as 72 Jefferson Avenue, County, City and
State of New York.
(v)
“Commencement Date” shall mean the later to occur of: (i) November 1,
2017, or (ii) the Twelfth Floor Delivery Date.
(vi)
“Expiration Date” shall mean the last day of the month in which the ten (10)
year anniversary of the Commencement Date occurs.
(vii)
“Landlord’s Initial Construction” shall mean the work and installations as
applicable to each floor of the Premises, as more specifically set forth and
itemized on Schedule B annexed hereto and made a part hereof.
(viii)
“Lease Year” shall mean for the first (1st) Lease Year the period of time
commencing on the Commencement Date and ending on the day
immediately prior to the one (1) year anniversary of the Commencement
Date. Each succeeding Lease Year shall commence on the day immediately
succeeding the end of the immediately preceding Lease Year, and shall end
on the one (1) year anniversary of the last day of the immediately preceding
Lease Year. The final Lease Year shall end on the Expiration Date, or if the
Renewal Option is exercised, the last day of the Renewal Term.
(ix)
“Permitted Uses” shall mean as administrative, general and executive
office space, including without limitation, an open shared, creative work
environment for third parties and other lawful uses directly ancillary thereto
and for no other purpose.
(x)
“Premises” shall mean the entire second (2nd) floor (the “Second Floor”),
the entire third (3rd) floor (the “Third Floor”), and the entire twelfth (12th)
floor (the “Twelfth Floor”) of the Building, collectively, as all are more
specifically identified on Exhibit 1 annexed hereto and made a part hereof,
subject to the delivery of each floor in accordance with the terms of this
Lease. The term Premises shall be subject to inclusion of the Seventh Floor
Offer Space in accordance with Article 44 below, and the Eleventh Floor Put
Space in accordance with Article 47 below.
(xi)
“Real Property” shall mean the Building together with the plot of land upon
which such building stands.
(xii)
“Rent” or “Base Rent” shall mean those base rent schedules annexed
hereto and made a part hereof as Schedule E.
(xiii)
“Rent Commencement Date” shall mean: (x) with respect to the Twelfth
Floor, the Commencement Date, (y) with respect to the Second Floor, the
Second Floor Delivery Date, and (z) with respect to the Third Floor, the
Third Floor Delivery Date.
1
(xiv)
“Second Floor Delivery Date” shall mean the date upon which Landlord
tenders to Tenant possession of the Second Floor to Tenant with Landlord’s
Initial Construction, as applicable to the Second Floor, Substantially
Complete, and with the Delivery Conditions applicable to the Twelfth Floor
satisfied.
(xv)
“Security Deposit” shall mean the amount of Two Hundred Thousand
dollars and 00/100 ($200,000.00), subject to the terms and conditions of
Article 32 below.
(xvi)
“Tenant Delay” means any delay which Landlord actually encounters in the
performance of Landlord’s Initial Construction under this Lease by reason
of any act or omission of any nature of Tenant, its agents or contractors,
including, without limitation, delays due to changes in or additions to
Landlord’s Initial Construction requested by Tenant, delays by Tenant in
submission of information or giving authorizations or approvals or delays
due to the postponement of any Landlord’s Initial Construction at the
request of Tenant. Tenant shall pay to Landlord any actual, reasonable outof-pocket costs or expenses incurred by Landlord to third parties by reason
of any Tenant Delay (it being understood that, unless a different time frame
is set forth elsewhere in this Lease, Tenant shall have five (5) business days
to submit information or give authorizations or approvals as and when
requested by Landlord).
(xvii)
“Tenant’s Proportionate Share” shall mean 25.41%. Landlord and Tenant
agree that for the purposes of this Lease and any modifications to be made
to Tenant’s Proportionate Share during the initial Term or the Renewal
Term as expressly provided for in this Lease, one (1) full floor of the
Building is deemed to have a Tenant Proportionate Share equal to 8.47%.
(xviii)
“Third Floor Delivery Date” shall mean the date upon which Landlord
tenders to Tenant possession of the Third Floor to Tenant with Landlord’s
Initial Construction, as applicable to the Third Floor, Substantially Complete
and with the Delivery Conditions applicable to the Third Floor satisfied.
(xix)
“Twelfth Floor Delivery Date” shall mean the date upon which Landlord
tenders to Tenant possession of the Twelfth Floor to Tenant with Landlord’s
Initial Construction, as applicable to the Twelfth Floor, Substantially
Complete and with the Delivery Conditions applicable to the Twelfth Floor
satisfied.
Notwithstanding anything to the contrary contained in this subsection A of this Article 1,
Articles 1 through 48 of this Lease shall control the rights and obligations of the parties hereto.
B.
Demise.
Subject to and upon the terms and conditions of this Lease,
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises. In
addition, Tenant shall have the non-exclusive license to use the public and common areas within
the Building as necessary to access the Premises and comply with its obligations under this Lease.
C.
Term. This Lease shall be for a term (the “Term”) which commences on the
Commencement Date and ends on the Expiration Date, unless sooner terminated pursuant to any
of the terms, covenants or conditions of this Lease or pursuant to law. In the event that the date set
forth above for the Commencement Date is not a date certain, then within ten (10) business days
of Landlord’s request, Tenant and Landlord shall join in the execution of an agreement stipulating
the Commencement Date (and Second Floor Delivery Date, Third Floor Delivery Date, and Twelfth
Floor Delivery Date, Seventh Floor Offer Space Inclusion Date, and Eleventh Floor Put Space
Inclusion Date, as applicable), the Rent Commencement Date, and the Expiration Date of this
Lease, substantially in the form annexed hereto and made a part hereof as Exhibit 2 (the
“Commencement Letter”) for each floor of the Building making up the Premises as applicable. In
the event Tenant fails to execute and deliver such Commencement Letter to or deliver to Landlord
a written statement setting forth Tenant’s objection to the dates set forth in any Commencement
Letter and specific and itemized reasons therefore, within ten (10) days from Tenant’s receipt
thereof, then, in such case, the Commencement Date, the Rent Commencement Date and the
Expiration Date set forth in the applicable Commencement Letter shall be deemed conclusive and
binding upon Tenant, provided however, such failure to execute the Commencement Letter shall
not affect the effectiveness of the terms and provisions of this Lease.
D.
Rent.
(i)
Landlord and Tenant acknowledge and agree that Landlord will be
2
delivering the Premises to Tenant in multiple deliveries and not all floors will be delivered on the
date and therefore the Base Rent applicable to each floor of the Premises will not commence
simultaneously. Therefore, commencing as of the: (a) Commencement Date, and continuing
throughout the Term, Tenant shall pay Landlord the annual Base Rent set forth on Schedule E
annexed hereto and made a part hereof, as applicable to the Twelfth Floor, and (b) the Second
Floor Delivery Date, and continuing throughout the Term, Tenant shall pay Landlord the annual
Base Rent set forth on Schedule E annexed hereto and made a part hereof, as applicable to the
Second Floor, and (c) the Third Floor Delivery Date, and continuing throughout the Term, Tenant
shall pay Landlord the annual Base Rent set forth on Schedule E annexed hereto and made a part
hereof, as applicable to the Third Floor, all of which shall be payable without demand, on or in
advance of the first (1st) day of each month in equal monthly installments, in lawful money (legal
tender for public or private debts) of the United States of America, at the office of Landlord or such
other place as Landlord may designate from time to time upon at least ten (10) days written notice
to Tenant, without any set-off, offset, abatement or deduction whatsoever, except as otherwise
expressly provided for in this Lease, and except that Tenant shall pay the first (1 st) monthly
installment, in the form of either a certified or official bank check, upon Tenant’s execution of this
Lease. By way of clarification and not limitation, it is understood that the Base Rents set forth on
Schedule E provide for amounts applicable to all Lease Years throughout the Term, and therefore,
in the event any applicable portion of the Premises is not delivered on the first (1 st) day of a Lease
Year, the payment of Base Rent at the rate applicable to such Lease Year shall be prorated for the
balance of such Lease Year in which the applicable portion of the Premises is delivered. If the
Rent Commencement Date, with respect to a floor, occurs on a date other than the first (1st) day of
a calendar month, Tenant shall pay to Landlord on or before the first (1st) day of the next month
the monthly installment of Rent for such floor for such partial month on a pro rata basis (based on
the actual number of days in the commencement month), and the first (1st) month’s Base Rent paid
by Tenant as described above for such floor shall be applied to the first (1st) full calendar month of
the Term for the floor for which Base Rent shall be due and payable. Such payment, together with
the sum paid by Tenant as first month’s Base Rent upon the execution of this Lease, shall
constitute payment for such floor of the Base Rent for the period from the Rent Commencement
Date for such floor to and including the last day of the next succeeding calendar month.
(ii)
In lieu of operating expenses escalations Tenant has agreed to pay to
Landlord a cumulative and compounding annual increase in the Base Rent, throughout the Term
of the Lease and any renewal thereof, in the amount of two and one-quarter (2.25%) percent per
annum. Such increase is included in the calculation of Base Rent as such is set forth on Schedule
E annexed hereto and made a part hereof.
E.
Base Rent Credit.
(i)
Notwithstanding
anything
to
the
contrary
hereinabove set forth, provided that at the time credit against the Base Rent set forth in this Article
1(E) (collectively, the “Base Rent Credit”) is to be applied, this Lease shall be in full force and effect
and Tenant shall not be in default of any of the terms or conditions of this Lease, beyond the
expiration of applicable notice, grace and cure periods, Tenant shall be entitled to a credit against
the Base Rent, as follows:
(a)
As applicable to the Base Rent which becomes due and payable for the Twelfth
Floor, Tenant shall be entitled to a credit against the Base Rent from the
Commencement Date through and including the day prior to the eight (8) month
anniversary of the Commencement Date in an amount equal to Four Thousand
Three Hundred and Thirty-Three dollars and 33/100 ($4,333.33) per month; and
(b)
As applicable to the Base Rent which becomes due and payable for the Second
Floor, Tenant shall be entitled to a credit against the Base Rent from the Second
Floor Delivery Date through and including the day prior to the eight (8) month
anniversary of the Second Floor Delivery Date in an amount equal to Four
Thousand Three Hundred and Thirty-Three dollars and 33/100 ($4,333.33) per
month; and
(c)
As applicable to the Base Rent which becomes due and payable for the Third Floor,
Tenant shall be entitled to a credit against the Base Rent from the Third Floor
Delivery Date through and including the day prior to the eight month (8) month
anniversary of the Third Floor Delivery Date in an amount equal to Four Thousand
Three Hundred and Thirty-Three dollars and 33/100 ($4,333.33) per month.
(ii)
The foregoing Base Rent Credit shall be null and void “ab initio” if at any time prior
to the three (3) year anniversary of the Commencement Date, Landlord terminates this Lease or reenters or repossesses the Premises on account of any default of Tenant under this Lease, beyond
expiration of applicable notice and cure periods, and in such event Landlord shall be entitled to
recover from Tenant, in addition to all other amounts Landlord is entitled to recover, the then
3
unamortized portion of the Base Rent Credit herein provided for, assuming such Base Rent Credit
is amortized on a straight-line basis over the Term.
F.
Delivery Period.
If Landlord is unable to deliver possession of a
portion of the Premises to the Tenant with Landlord’s Initial Construction Substantially Completed
on or prior to the ninety (90) day anniversary of the Effective Date of the Lease (the, “Delivery
Date”), then Tenant shall receive an abatement of the Base Rent, which is applicable to such
portion of the Premises for which Landlord has not tendered to Tenant with Landlord’s Initial
Construction, as applicable to such floor, Substantially Complete, at a rate of one (1) day for each
day after the Delivery Date through the earlier of: (a) the sixty (60) day anniversary of the Delivery
Date, and (b) in the case of the Second Floor the Second Floor Delivery Date, the Third Floor the
Third Floor Delivery Date or Twelfth Floor the Twelfth Floor Delivery Date, respectively, and as
applicable, which days shall commence at the end of eight (8) month anniversary of the Rent
Commencement Date(s) for the applicable floor(s), and be in addition to the Base Rent Credit (the
“Abatement Bonus”). If Landlord has failed to deliver a portion of the Premises to Tenant with
Landlord’s Initial Construction Substantially Completed as of the date which is the sixty (60)
anniversary of the Delivery Date, then Tenant shall receive an abatement of Base Rent, which is
applicable to such portion of the Premises for which Landlord has not tendered to Tenant with
Landlord’s Initial Construction, as applicable to such floor, Substantially Complete, at a rate of two
(2) days for each day after the sixty (60) day anniversary of the Delivery Date through the earlier of:
(a) the one hundred and twenty (120) day anniversary of the Delivery Date, and (b) in the case of
the Second Floor the Second Floor Delivery Date, the Third Floor the Third Floor Delivery Date or
Twelfth Floor the Twelfth Floor Delivery Date, respectively, and as applicable, which days shall
commence at the end of the application of the Abatement Bonus. In the event that Second Floor
Delivery Date, Third Floor Delivery Date and Twelfth Floor Delivery Date have all not occurred on
or prior to the date which is the one hundred and twenty (120) day anniversary of the Delivery Date
(the “Cancellation Date”), Tenant shall have the right to terminate this Lease, upon written notice
to Landlord (the “Cancellation Notice”) which must be delivered to Landlord within thirty (30) days
of the Cancellation Date, and in the event that Tenant timely delivers the Cancellation Notice to
Landlord exercising such termination right, and provided that the Second Floor Delivery Date, the
Third Floor Delivery Date and the Twelfth Floor Delivery Date have all not occurred within such
thirty (30) day period, this Lease shall terminate and be of no further force and effect as of thirty
(30) days after delivery of the Cancellation Notice, and Landlord shall promptly return to Tenant
any Rent and any Security Deposit (as defined below) delivered by Tenant to Landlord, whereupon
neither party shall have any further obligation hereunder, except for any provisions that expressly
survive the termination of this Lease. In the event that Tenant fails to timely deliver the
Cancellation Notice to Landlord as required in this Article 1(F): (x) the Lease shall remain in full
force and effect, and (y) Tenant shall have no further right of cancellation. Notwithstanding the
previous sentence, in the event that Landlord shall be delayed or hindered in or prevented from
delivering the Premises to Tenant on or before the Delivery Date by reason of Force Majeure
Causes, strikes, lock-outs, labor trouble, delays in governmental/landmarks approvals, inability to
procure materials, failure of power, restrictive governmental laws or regulations, riots,
insurrection, war or other reason of like nature not the fault of Landlord, or by reason of a Tenant
Delay as such term is defined herein, then such failure to deliver the affected portion of the
Premises shall be excused for the period of the delay and all the time periods relating to such
affected portion set forth in this Article 1(F) shall be extended for a period equivalent to the period
of such delay. In the event that the Lease is terminated under the terms of this Article 1(F) such
failure to deliver shall not be deemed an event of default by the Landlord and Landlord shall not be
liable to Tenant for any damages for Landlord’s failure to deliver the Premises, or otherwise,
whatsoever and Tenant sole and exclusive right, remedy and recourse, shall be to terminate the
Lease pursuant to the terms and conditions of this Article 1(F) and receive a prompt return of all
Base Rent and Additional Rent which was delivered to Landlord, and a return of the Security
Deposit pursuant to Article 32 below. As a condition to Tenant’s exercise of the termination right
set forth in this Article 1(F) together with the delivery of the Cancellation Notice, Tenant shall
deliver to Landlord a check payable to Landlord (or a wire transfer of immediately available funds)
in the amount of the Initial Tenant Improvement Payment (as such term is defined in Article 46(a)
below) less the total sum of all Base Rent payments which Tenant had delivered to Landlord under
this Lease, (including, without limitation the first (1 st) monthly installment of Base Rent paid upon
Tenant’s execution of this Lease) on or prior to the Cancellation Date, provided that Tenant shall
have no obligation to deliver to Landlord any such payment if Tenant shall not have received the
Initial Tenant Improvement Payment.
2.
USE AND OCCUPANCY.
A.
Permitted Uses. Tenant shall use and occupy the Premises for the Permitted Uses,
and for no other purpose.
4
B.
Use Prohibitions.
Anything contained herein to the contrary notwithstanding,
Tenant shall not use the Premises or any part thereof, or permit the Premises or any part thereof to
be used, (i) for the business of photographic, multilith or multigraph reproductions or offset
printing, (ii) as an employment agency (except for an executive placement firm and legal and other
professional search firms which do not hold public castings or callings), labor union office,
physician’s …
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