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Exhibit 10.1
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AGREEMENT OF LEASE
between
CHARNEY-FPG 114 41ST STREET LLC
Landlord,
and
HAMPSHIRE GROUP, LIMITED
Tenant
Premises at 114 West 41st Street
New York, New York
July 11, 2007
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<PAGE>
TABLE OF CONTENTS
Page
----
1. Term;
Rent..............................................................1
2.
OMITTED.................................................................4
3. Rentable Square
Feet....................................................4
4. Maintenance and
Repairs.................................................4
5. Window
Cleaning.........................................................5
6. Requirements of Law and Fire Insurance; Floor
Loads....................5
7.
OMITTED.................................................................7
8. Property Loss, Damage, Reimbursement,
Indemnity.........................7
9. Destruction, Fire and Other
Casualty....................................8
10. Eminent
Domain.........................................................11
11.
OMITTED................................................................12
12.
OMITTED................................................................12
13. Access to Leased
Premises..............................................12
14. Vault, Vault Space,
Area...............................................13
15. Occupancy; Certificate of
Occupancy....................................13
16.
Bankruptcy.............................................................15
17.
Default................................................................16
18. Remedies of Landlord and Waiver of
Redemption..........................17
19. Fees and
Expenses......................................................18
20. Building Alterations and
Management....................................19
21. No Representations by
Landlord.........................................19
22.
OMITTED................................................................20
23. Quiet
Enjoyment........................................................20
(i)
<PAGE>
24. Failure to Give
Possession.............................................20
25. No
Waiver..............................................................20
26. Waiver of Trial by
Jury................................................21
27. Inability to
Perform...................................................21
28.
OMITTED................................................................21
29. Services Provided by
Landlord..........................................21
30.
Captions...............................................................22
31. Construction of Certain
Terms..........................................22
32. Adjacent Excavation
Shoring............................................23
33. Rules and
Regulations..................................................23
34. Annual Escalation for Fixed Annual Rent in Lieu of Operating
Expense...24
35. Estoppel
Certificate...................................................24
36. Successors and
Assigns.................................................24
37. Certain Defined
Terms..................................................25
38. Real Estate Tax Escalation
Payments....................................30
39. Electric
Current.......................................................33
40. End of Term; Holding
Over..............................................38
41. Condition of Leased Premises; Landlord's Work; Landlord's
Common
Area
Improvements......................................................39
42. Tenant
Changes.........................................................43
43. Subordination and
Attornment...........................................52
44.
Insurance..............................................................55
45.
Omitted................................................................57
46. Additional Rent; Late
Charges..........................................57
47. Rooftop
Antenna........................................................58
(ii)
<PAGE>
48. Assignment, Mortgaging, Subletting,
Etc................................60
49. Overtime Services; Other
Services......................................68
50. Use; Compliance with
Laws..............................................70
51.
Brokerage..............................................................72
52.
Miscellaneous..........................................................72
53.
OMITTED................................................................74
54. Legal Rent
Restrictions................................................74
55. Existing Lease and Surrender
Agreement.................................74
56.
Consents...............................................................74
57. Patriot
Act............................................................75
58.
Notices................................................................75
59. Security
Deposit.......................................................77
60. Right of First
Offer...................................................79
61. Option to
Extend.......................................................85
62. 2nd and 3rd Floor
Options..............................................88
63.
Signage................................................................88
64. Prohibited
Uses........................................................90
65. Relocation of Basement
Premises........................................91
66.
Abatements.............................................................92
67. Expedited
Arbitration..................................................93
(iii)
<PAGE>
LIST OF SCHEDULES AND EXHIBITS
Schedule 1 Applicable Per Square Foot Rent
EXHIBIT A - Leased Premises
EXHIBIT B - Form of Letter of Credit
EXHIBIT C-1 - Landlord's Work
EXHIBIT C-2 - Landlord's Common Area Improvements
EXHIBIT C-3 - Drawing of Landlord's Common Area Improvements
EXHIBIT D - Cleaning Specifications
EXHIBIT E - OMITTED
EXHIBIT F - OMITTED
EXHIBIT G - Construction Rules for Tenant Changes
EXHIBIT H - Rules and Regulations
EXHIBIT I - Prior Rights
EXHIBIT J - HVAC Specifications
EXHIBIT K - Nondisturbance Agreement with Existing Mortgagee
EXHIBIT L - Landlord's Current Approved Contractor List
(iv)
<PAGE>
AGREEMENT OF LEASE
Agreement of Lease dated as of July 11, 2007 between CHARNEY-FPG
114
41ST STREET, LLC, a Delaware limited liability company, having
an address at c/o
George Comfort & Sons, Inc., 200 Madison Avenue, New York,
New York 10016,
("Landlord"), and Hampshire Group, Limited, a Delaware
corporation, having a
place of business at 119 West 40th Street, New York, NY 10018
("Tenant").
W I T N E S S E T H :
- - - - - - - - - -
Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord
the "Leased Premises" as defined in Article 37 hereof, in the
Building as
defined in Article 37 hereof, for the Term as defined in Article
1.A hereof, at
the Fixed Annual Rent as set forth in Article 1 hereof.
The parties hereto, for themselves, their heirs,
distributees,
executors, administrators, legal representatives, successors and
assigns, hereby
covenant as follows:
1. Term; Rent.
A. The term (the "Term") (a) shall commence on the First
Commencement Date (as defined below) and (b) shall end at 11:59
p.m. on the last
day of the calendar month in which occurs the 15th anniversary
of the Latest
Rent Commencement Date (the "Expiration Date") (subject however
to extension
pursuant to Article 61) or on such earlier date upon which the
Term shall expire
or be canceled or terminated pursuant to any of the conditions
or covenants of
this Lease or pursuant to law.
B. The rents (the "Rent") which Tenant agrees to pay shall be
and
consist of:
(i) fixed rent ("Fixed Annual Rent"), (a) for the Office
Premises, as set forth on Schedule 1 attached hereto and made a
part hereof,
which Fixed Annual Rent shall be payable commencing on the First
Rent
Commencement Date (as to each rentable square foot of the
Initial Premises, as
set forth in Article 3 hereof) and on the Extra Floor Rent
Commencement Date if
the Extra Floor is not part of the Initial Premises (as to each
rentable square
foot of the Extra Floor, as set forth in Article 3 hereof), and
(b) for the
Basement Premises, on the Basement Rent Commencement Date in
each instance
ending on the Expiration Date, in the amounts set forth in
Article 1C(ii)
hereof; and
(ii) additional rent ("Additional Rent") consisting of Tax
Payments (as defined below), amounts due under Article 39 (other
than the
Electric Charge (as defined below) to the extent included in the
Fixed Annual
Rent), and all other sums of money, costs, expenses, or charges
of any kind or
amount whatsoever as shall be due and payable by Tenant to
Landlord under this
Lease, the Existing Lease and the Surrender Agreement (but in
the case of
amounts due under the Existing Lease
<PAGE>
or the Surrender Agreement, only those amounts which are due and
unpaid for any
period during or prior to the holdover period but remain unpaid
at any time
during which Tenant is holding over in the premises leased to
Tenant pursuant to
the Existing Lease); provided, however, that Fixed Annual Rent
shall not be
considered to be "Additional Rent".
C. (i) The Fixed Annual Rent for the Office Premises shall
be the amounts set forth on Schedule 1 attached hereto and made
a part hereof.
(ii) For the Basement Premises, the Fixed Annual Rent
(inclusive of the Electric Charge but subject to the other
provisions of Article
39) shall be as follows:
(a) From the Basement Rent Commencement Date through
and including the day prior to the 5th anniversary of the
Basement Rent
Commencement Date, $23,500.00 per annum or $1,958.34 per
month;
(b) From the 5th anniversary of the Basement Rent
Commencement Date to the day prior to the 10th anniversary of
the Basement Rent
Commencement Date, $26,000.00 per annum or $2,166.67 per month;
and
(c) From the 10th anniversary of the Basement Rent
Commencement Date through the Expiration Date, $28,500.00 per
annum or $2,375.00
per month.
(d) The parties agree and acknowledge that the Fixed
Annual Rent for the Basement Premises is not subject to any CPI
Adjustment or
other adjustment (except as expressly set forth in this
paragraph C, Article 39,
and Article 65).
D. If any Rent Commencement Date occurs on a day other than
the
first day of a calendar month, or if the Expiration Date occurs
other than on
the last day of a calendar month, the Fixed Annual Rent and
Additional Rent for
such partial calendar month shall be prorated.
E. As shown on Exhibit C-1, Landlord shall remove fire
stairways
B and D in the Office Premises (as such stairways are shown on
Exhibit A) and
shall fill in the slabs (the "Slab Work") on or before the date
specified for
the completion of such work on Exhibit C-1.
F. Tenant shall pay the Fixed Annual Rent during the Term as
set
forth above (as such amounts shall be increased from time to
time as provided on
Schedule 1) and as hereinafter provided. Tenant shall pay all
Rent due hereunder
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.
Fixed Annual
Rent shall be paid in equal monthly installments in advance on
the first day of
each month during the Term, by wire transfer or at the office of
Landlord or
such other place as Landlord may
(2)
<PAGE>
designate by notice to Tenant, without any setoff or deduction
whatsoever,
except as expressly provided herein, except that Tenant shall
pay the first
monthly installment(s) for each floor of the Leased Premises on
or before the
Rent Commencement Date for each respective floor and for the
Basement Premises
on or before the Basement Rent Commencement Date.
G. Notwithstanding anything to the contrary hereinabove
contained, (i) if the First Commencement Date shall not have
occurred (other
than to the extent due to a Tenant Delay or Force Majeure) by
September 1, 2007,
then the First Rent Commencement Date shall be extended by one
day for each day
after September 1, 2007 but on or before September 30, 2007
until such First
Commencement Date occurs; and (ii) if the First Commencement
Date shall not have
occurred (other than to the extent due to a Tenant Delay or
Force Majeure) by
October 1, 2007, the First Rent Commencement Date shall be
extended by two days
for each day thereafter that the First Commencement Date shall
occur after
October 1, 2007 until the First Commencement Date shall
occur.
H. In the event the Extra Floor is not part of the Initial
Premises and if (i) the Extra Floor Commencement Date shall not
have occurred
(other than to the extent due to a Tenant Delay or Force
Majeure) by November 1,
2007, then the Extra Floor Rent Commencement Date shall be
extended by one day
for each day after November 1, 2007 but on or before November
30, 2007 until
such Extra Floor Commencement Date occurs, and (ii) the Extra
Floor Commencement
Date shall not have occurred other than because of a Tenant
Delay or Force
Majeure by December 1, 2007, then the Extra Floor Rent
Commencement Date shall
be extended for two days for each day thereafter that the Extra
Floor
Commencement Date shall occur.
I. If (i) the Basement Commencement Date shall not have
occurred
on or before November 1, 2007 other than because of a Tenant
Delay or Force
Majeure, then the Basement Rent Commencement Date shall be
extended by one day
for each day after November 1, 2007 but on or before November
30, 2007 until the
Basement Commencement Date occurs, and (ii) the Basement
Commencement Date shall
not have occurred by December 1, 2007 other than because of a
Tenant Delay or
Force Majeure, then the Basement Rent Commencement Date shall be
extended for
two days for each day that the Basement Commencement Date shall
occur after
December 1, 2007 until the Basement Commencement Date shall
occur.
J. Landlord agrees to use good faith efforts to commence the
Landlord's Common Area Improvements (as shown on Exhibits C-2
and C-3) by
September 1, 2007, and thereafter in good faith to diligently
prosecute such
improvements to completion. Landlord anticipates that Landlord's
Common Area
Improvements shall be Substantially Completed by June 30, 2008.
If Landlord's
Common Area Improvements are not Substantially Completed by June
30, 2008 (as
such date may be extended due to Tenant Delay or Force Majeure),
and if after
June 30, 2008, Landlord at any time is not diligently
prosecuting the Landlord's
Common Area Improvements to completion, then each of the Rent
Commencement Dates
shall
(3)
<PAGE>
be delayed by one-half (1/2) day for every day during such
period that
Landlord was not diligently prosecuting such improvements.
Without limiting the
foregoing provisions of this subsection J, Landlord agrees to
commence and
thereafter proceed diligently therewith Landlord's Common Area
Improvements to
the 41st Street Lobby prior to commencing the other Landlord's
Common Area
Improvements.
K. The Fixed Annual Rent for the Basement Premises set forth
herein is based on the assumption that the area of the Basement
Premises is
1,000 square feet. In the event the Basement Premises as finally
determined is
less than 1,000 square feet, the Fixed Annual Rent for the
Basement Premises
shall be adjusted on a pro rata basis.
L. For the purposes of Paragraphs G, H, I and J above, the
aggregate delay under all such paragraphs due to Force Majeure
shall not exceed
90 days.
2. OMITTED.
3. Rentable Square Feet. Tenant and Landlord agree that, with
the Slab
Work being performed, the current deemed rentable square footage
of the Office
Premises on floors 4, 5, 6, 7 and 8 is 76,945 rentable square
feet, and that the
current rentable square footage of each of floors 4, 5, 6, 7 and
8 is 15,389.
4. Maintenance and Repairs.
A. Tenant shall, throughout the Term, take good care of the
Leased Premises and the fixtures and appurtenances therein.
Subject to Article
9, Tenant shall be responsible for all damage or injury to the
Leased Premises
or any other part of the Building and the systems and equipment
thereof, whether
requiring structural or nonstructural repairs, if caused by, or
resulting from,
omission, improper conduct or negligence of a Tenant Party, or
which arise out
of any work, labor, service or equipment done for, or supplied
to, Tenant or any
subtenant or occupant in the Leased Premises or any part thereof
(except to the
extent caused by the improper acts or negligence of a Landlord
Party), or
arising out of the installation, use or operation of the
property or equipment
of Tenant or any subtenant (except to the extent caused by the
improper acts or
negligence of a Landlord Party). Tenant shall also repair all
damage to the
Building and the Leased Premises caused by the moving of
Tenant's fixtures,
furniture and equipment (except to the extent caused by the
negligence or
willful misconduct of a Landlord Party). Tenant shall promptly
make, at Tenant's
expense, all repairs in and to the Leased Premises for which
Tenant is
responsible, which repairs shall be performed subject to the
provisions hereof
governing Tenant Changes. Any other repairs in or to the
Building or the
facilities and systems thereof for which Tenant is responsible,
shall be
performed by Landlord, at Tenant's reasonable expense.
B. Except for those obligations of Tenant or to the extent
caused
by the negligence or willful misconduct of a Tenant Party,
Landlord shall
(4)
<PAGE>
maintain in good working order and repair the exterior and the
structural
portions of the Building (including the sidewalks adjacent to
the Building),
including the structural portions of the Leased Premises
(including the roof
subject to Article 47), and the public portions of the Building
interior and the
Building plumbing, electrical, HVAC (so as to continue to be
capable of meeting
the specifications set forth in Exhibit J) and other Building
systems serving
the Leased Premises (except that Tenant shall be responsible for
the maintenance
of the VAC distribution system (ductwork) and the VAC machinery
(if any)
installed by Tenant other than damage thereto caused by the
negligence or
willful misconduct of a Landlord Party), as well as the freight
and passenger
elevators and security and life safety systems. Tenant agrees to
give notice of
any defective condition in the Leased Premises for which
Landlord may be
responsible hereunder promptly after Tenant becomes aware
thereof.
C. Except as otherwise expressly provided herein (including
in
Article 66), there shall be no allowance to Tenant for
diminution of rental
value and no liability on the part of Landlord by reason of
inconvenience,
annoyance or injury to business arising from Landlord or others
making repairs,
alterations, additions or improvements in or to any portion of
the Building or
the Leased Premises, or in and to the fixtures, appurtenances or
equipment
thereof. Landlord shall cause all such work to be done in a
commercially
reasonable manner. It is specifically agreed that, except as
otherwise expressly
provided herein (including in Article 66), Tenant shall not be
entitled to any
setoff or reduction of Rent by reason of any failure of Landlord
to comply with
the covenants of this or any other Article of this Lease. The
provisions of this
Article 4 shall not apply in the case of fire or other casualty,
which are dealt
with in Article 9 hereof.
5. Window Cleaning. Tenant will not clean nor require, permit,
suffer
or allow any window in the Leased Premises to be cleaned from
the outside in
violation of Article 202 of the Labor Law or any other
applicable law, or of the
Rules of the Board of Standards and Appeals, or of any other
Board or body
having or asserting jurisdiction.
6. Requirements of Law and Fire Insurance; Floor Loads.
A. Subject to the last sentence of Section 42A, Tenant shall
not
at any time, prior to or during the Term, either directly or
indirectly, use any
contractors or labor or materials whose use in Landlord's
reasonable judgment
would create, or creates, any difficulty with other contractors
or labor
employed by Tenant or Landlord or others in the construction,
maintenance or
operation of the Leased Premises or the Property. Subject to
Article 4 and
Article 50 hereof, nothing in this Lease shall require Tenant to
make structural
repairs or structural alterations unless Tenant has, by its
manner of use of the
Leased Premises or method of operation therein (other than mere
generic office
use) or by reason of the performance of any Tenant Changes,
violated any Legal
Requirements. Tenant may, after securing Landlord to Landlord's
reasonable
satisfaction against all reasonably foreseeable damages,
interest, penalties and
expenses, including, but not limited to, reasonable attorney's
fees, by cash
deposit or by surety bond in an amount and from a company
reasonably
satisfactory to Landlord,
(5)
<PAGE>
contest and appeal any such Legal Requirements, provided same is
done with all
reasonable promptness and provided such appeal shall not (i)
subject Landlord to
prosecution for a criminal offense, or (ii) constitute a default
under any
Superior Lease or Superior Mortgage of the Property under which
Landlord may be
obligated (and a copy of which defaulting provisions Landlord
has delivered to
Tenant upon written request of Tenant), or (iii) cause the
Leased Premises or
any part thereof to be condemned or vacated, or (iv) subject
Landlord to a civil
penalty or fine unless Tenant indemnifies and holds Landlord
harmless from and
against all liabilities, costs, expenses, losses and damages in
connection with
or relating thereto.
B. Tenant shall not do or permit any act or thing to be done
(other than by a Landlord Party) in or to the Leased Premises
which is contrary
to Legal Requirements, 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 Landlord with respect to the Leased Premises or the
Building, or
which shall or might subject Landlord to any liability or
responsibility to any
person, or for property damage. Tenant shall not keep anything
in the Leased
Premises, except as now or hereafter permitted by the Fire
Department, Board of
Fire Underwriters, Fire Insurance Rating Organization or other
authority having
jurisdiction, and then only in such manner and such quantity so
as not to
increase the rate for fire insurance applicable to the Building,
nor use the
Leased Premises in a manner which will increase the insurance
rate for the
Building or any property located therein over that in effect
prior to the
commencement of Tenant's occupancy. Tenant shall pay all costs,
expenses, fines,
penalties, or damages which may be imposed upon Landlord by
reason of Tenant's
failure to comply with the provisions of this Article, and if by
reason of such
failure the fire insurance rate shall, at the beginning of this
Lease, or at any
time thereafter, be higher than it otherwise would be, then,
Tenant shall
reimburse Landlord, as additional rent hereunder, for that
portion of all fire
insurance premiums thereafter paid by Landlord which shall have
been charged
because of such failure by Tenant. In any action or proceeding
wherein Landlord
and Tenant are parties, a schedule or "make-up" of rate for the
Building or the
Leased Premises issued by the New York Fire Insurance Exchange,
or other body
making fire insurance rates applicable to said premises shall be
conclusive
evidence of the facts therein stated and of the several items
and charges in the
fire insurance rates then applicable to said premises.
C. Tenant shall not place a load upon any floor of the
Leased
Premises exceeding the floor load per square foot area which it
was designed to
carry and which is allowed by law. To the best of Landlord's
actual knowledge,
the floor load of the office space portions of the Leased
Premises is 50 pounds
per square foot. All safes, business machines and mechanical
equipment shall be
placed and maintained by Tenant, at Tenant's expense, in
settings sufficient, in
Landlord's reasonable judgment, to absorb and prevent vibration,
noise and
annoyance.
(6)
<PAGE>
7. OMITTED.
8. Property Loss, Damage, Reimbursement, Indemnity.
A. Landlord 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
misconduct of
Landlord or any Landlord Party. Landlord or its agents will not
be liable for
any such damage caused by other tenants or persons in, upon or
about said
Building, or caused by operations in construction of any
private, public or
quasi public work. If at any time any windows of the Leased
Premises are
temporarily closed, darkened or bricked up (or permanently
closed, darkened or
bricked up, if required by Legal Requirement) for any reason
whatsoever
including, but not limited to, Landlord's own acts, Landlord
shall not be liable
for any damage Tenant may sustain thereby, and Tenant shall not
be entitled to
any compensation therefor, nor abatement or diminution of rent,
nor shall the
same release Tenant from its obligations hereunder, nor
constitute an eviction.
B. Subject to Article 44 B and the release and waiver set
forth
in Article 9E, Tenant shall indemnify and save harmless
Landlord, Landlord's
partners, members, agents and employees against and from all
liabilities,
obligations, damages, penalties, claims, costs and expenses for
which Landlord
shall not be reimbursed by insurance, including reasonable
attorneys' fees,
paid, suffered or incurred as a result of any breach by Tenant,
Tenant's
Affiliates, Tenant's agents, contractors, employees, invitees,
subtenants or
licensees (collectively, including Tenant, the "Tenant
Parties"), of any
covenant or condition of this Lease, or the carelessness,
negligence or improper
conduct of any Tenant Party. Tenant's liability under this Lease
extends to the
acts and omissions during the Term and any holdover period of
any subtenant and
any occupant of the Leased Premises, and of any agent,
contractor, employee,
invitee or licensee of any subtenant and any occupant of the
Leased Premises
during the Term and any holdover period. In case any action or
proceeding is
brought against Landlord by reason of any such claim, Tenant,
upon written
notice from Landlord, will, at Tenant's expense, resist or
defend such action or
proceeding by counsel approved by Landlord in writing, such
approval not to be
unreasonably withheld. Tenant shall not be obligated to make any
indemnification
as provided above in this paragraph to the extent such
indemnification is
prohibited under Article 5-322.1 of the New York General
Obligations Law.
C. Subject to Article 36, Article 44B and to Paragraph A of
this
Article, the release and waiver set forth in Article 9E and
except as otherwise
expressly provided in this Lease, Landlord shall indemnify and
save harmless
Tenant, Tenant's agents and employees against and from all
liabilities,
obligations, damages, penalties, claims, costs and expenses for
which Tenant
shall not be reimbursed by insurance, including reasonable
attorneys' fees,
paid, suffered or incurred as a result of any breach by Landlord
or by
Landlord's agents, contractors or employees (collectively,
including
(7)
<PAGE>
Landlord, the "Landlord Parties"), of any covenant or condition
of this Lease,
or the negligence or willful misconduct of any Landlord Party.
In case any
action or proceeding is brought against Tenant by reason of any
such claim,
Landlord, upon written notice from Tenant, will, at Landlord's
expense, resist
or defend such action or proceeding by counsel approved by
Tenant in writing,
such approval not to be unreasonably withheld.
D. The provisions of paragraphs B and C shall survive the
expiration or sooner termination of this Lease.
9. Destruction, Fire and Other Casualty.
A. If the Leased Premises or any part thereof shall be damaged
by
fire or other casualty, Tenant shall give immediate notice
thereof to Landlord,
and this Lease shall continue in full force and effect except as
hereinafter set
forth. If the Leased Premises are partially damaged or rendered
partially
unusable by fire or other casualty or if due to fire or casualty
the Leased
Premises are not accessible, the damage to the Leased Premises
and the access
thereto shall be repaired to the Restoration Condition by, and
at the expense
of, Landlord, and the Rent, until the date 20 days after the
date such repair
shall be substantially completed (or if sooner, the date Tenant
reoccupies the
damaged or inaccessible portion of the Leased Premises), shall
be apportioned
from the day following the casualty, according to the part of
the Leased
Premises which is usable by Tenant for the normal operation of
Tenant's business
or used by Tenant whichever is sooner.
B. If the Leased Premises are totally damaged or rendered
wholly
unusable and/or inaccessible by fire or other casualty, then the
Rent, as
hereinafter expressly provided, shall be proportionately paid up
to the time of
the casualty, and thenceforth shall cease until the date 20 days
after the date
on which the Leased Premises and the access therefor shall have
been repaired
and restored by Landlord to the Restoration Condition (or if
sooner, the date
Tenant reoccupies the damaged portion of the Leased Premises),
and the Rent
shall be apportioned as provided in Paragraph A above), subject
to Landlord's
right to elect not to restore the same as hereinafter
provided.
C. If (i) the Leased Premises are rendered wholly unusable
or
wholly inaccessible as a result of fire or other casualty
(whether or not the
Leased Premises are damaged in whole or in part) or (ii) if the
Building shall
be so damaged that Landlord shall decide to demolish it, then,
in either of such
events, Landlord may elect to terminate this Lease by written
notice to Tenant
(the "Landlord Termination Notice"), given within ninety (90)
days after such
fire or other casualty, specifying a date for the expiration of
this Lease,
which date shall not be more than thirty (30) days after the
giving of such
notice, and upon the date specified in such notice the Term
shall expire as
fully and completely as if such date were the date set forth
above for the
expiration of this Lease, and Tenant shall forthwith quit,
surrender and vacate
the Leased Premises without prejudice however, to Landlord's
rights and remedies
against
(8)
<PAGE>
Tenant hereunder in effect prior to such termination, and any
Rent owing
shall be paid up to the specified 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. The election permitted to Landlord pursuant to this
Paragraph C shall
not be effective unless leases (including this Lease) covering
an aggregate of
at least sixty percent (60%) of the office rentable square feet
in the Building
are terminated.
D. Unless Landlord or Tenant shall serve a termination notice
as
provided for in this Article 9, Landlord shall use commercially
reasonable
efforts to collect all applicable insurance proceeds, and shall,
after receipt
of all applicable insurance proceeds, make the repairs and
restorations to the
Restoration Condition under the conditions of Paragraphs 9A and
9B hereof, with
all reasonable expedition, subject to delays resulting from
Force Majeure. After
any such casualty, Tenant shall cooperate with Landlord's
restoration by
removing from the Leased 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 20 days after
the Leased
Premises are substantially complete in accordance with the
provisions hereof.
Anything contained herein to the contrary notwithstanding, if
the applicable
Rent Commencement Date has not occurred with respect to the part
of the Leased
Premises that is the subject of the abatement of Rent pursuant
to this Article
9, then the Rent Commencement Date with respect to such part of
the Leased
Premises shall be extended one day for each day of the abatement
period pursuant
to this Article 9.
E. Each party agrees to seek to have included in each of its
fire
and extended coverage and rent or business interruption
insurance policies
(insuring the Building and any other Landlord's property therein
in case of
Landlord, and insuring Tenant's property located in the Leased
Premises, Tenant
Changes and other Tenant's improvements and betterments in the
case of Tenant),
against loss, damage or destruction by fire or other casualty,
an appropriate
clause or endorsement pursuant to which the respective insurance
companies waive
the insurer's right of subrogation or permit the insured, prior
to any loss, to
agree with a third party to waive any claim it may have against
a third party
during the Term, or if such waiver should be unobtainable or
unenforceable, (i)
an express agreement that such policy shall not be invalidated
if the insured
waives the right of recovery against any party responsible for a
casualty
covered by the policy before the casualty or (ii) any other form
of permission
for the release of the other party. If such waiver, agreement or
permission
shall not be, or shall cease to be, obtainable from either
party's then current
insurance company, the insured party shall so notify the other
party promptly
after learning thereof, and shall use its commercially
reasonable efforts to
obtain the same from another insurance company. Subject to the
foregoing
provisions of this Paragraph E and insofar as may be permitted
by the terms of
the insurance polices carried by it, each party hereby releases
the other party
(and any parties claiming by or through such other party), with
respect to any
claim (including a claim for negligence) which it might
otherwise have against
the other party, for loss, damage or destruction with respect to
its property by
fire or other casualty (including rental value or business
interest, as the case
may be,) occurring during the Term which is, or is required to
be, insured under
a policy or policies
(9)
<PAGE>
(inclusive of retentions and deductibles) containing a waiver of
subrogation or
permission to release liability, as provided in the preceding
subsections of
this subsection E. Nothing contained in this subsection E shall
be deemed to
relieve either party of any duty imposed elsewhere in this Lease
to repair,
restore or rebuild or to nullify any abatement of rents provided
for elsewhere
in this Lease. Tenant acknowledges that Landlord will not carry
insurance on
Tenant's furniture, furnishings, fixtures, equipment,
betterments and
improvements and Tenant Changes and agrees that Landlord will
not be obligated
to repair any damage thereto or replace the same.
F. Tenant hereby waives the provisions of Article 227 of the
Real
Property Law and agrees that the provisions of this Article 9
shall govern and
control in lieu thereof.
G. If the Leased Premises or any part thereof or the means
of
access thereto or building systems servicing the same shall be
damaged by fire
or other casualty, and Landlord is required to or elects to
repair and restore
the Leased Premises and common areas of the Building, Landlord
shall, within
ninety (90) days after such damage or destruction, provide
Tenant with a written
notice (the "Restoration Notice") of the estimated date (as
determined by an
independent architect or engineer or contractor selected by
Landlord) on which
the restoration of the Leased Premises (and access thereto) and
the common areas
of the Building affecting Tenant, if applicable, shall be
substantially
completed. If such estimated date is more than twelve (12)
months after the date
of such damage or destruction, Tenant may terminate this Lease
by notice to
Landlord, which notice shall be given within thirty (30) days
after the date
Landlord provides the Restoration Notice (time being of the
essence), and such
termination shall be effective upon the giving of Tenant's
notice. Failure by
Tenant to provide such notice within such thirty (30) day period
shall be deemed
an election by Tenant not to terminate this Lease except as
expressly provided
in the next sentence. In addition, if Tenant does not elect to
terminate this
Lease as set forth above in this Paragraph G, and if Landlord
has not
substantially completed the required repairs and restored the
Leased Premises
and access thereto within 12 months (or such longer period as
was originally
estimated in the Restoration Notice, as such 12-month period may
be extended by
sixty (60) days or for up to ninety (90) additional days for
Force Majeure
provided that in the case of Force Majeure Landlord has given
Tenant written
notice of such extension) (such date, the "Restoration Date"),
then Tenant shall
have the further right to elect to terminate this Lease upon
written notice to
Landlord within thirty (30) days after the expiration of the
Restoration Date
(time being of the essence) and such election shall be effective
upon the
expiration of thirty (30) days after the date of such notice
from Tenant, unless
Landlord substantially completes such restoration as provided
herein within such
thirty (30) day period.
H. As used in this Article 9, "substantially completed"
means
that Landlord has restored the applicable portion of the Leased
Premises and/or
the Building to substantially the Restoration Condition.
(10)
<PAGE>
10. Eminent Domain.
A. If all or substantially all of the Building or the Leased
Premises or access thereto shall be taken by condemnation or in
any other manner
for any public or quasi-public use or purpose, this Lease and
the term and
estate hereby granted shall terminate as of the date of vesting
of title on such
taking (herein called "Date of the Taking") as if that were the
date originally
set forth as the Expiration Date of this Lease, and the Rent
shall be prorated
and adjusted as of such date.
B. If more than twenty (20%) percent of the Leased Premises
shall
be so taken and the remaining area of the Leased Premises shall
not be
sufficient, in Tenant's reasonable judgment, for Tenant to
continue the
operation of its business, Tenant may terminate this Lease by
giving Landlord
notice to that effect within thirty (30) days after the Date of
the Taking (time
being of the essence) and this Lease shall terminate on the Date
of the Taking,
and the Fixed Annual Rent (shall be prorated and adjusted as of
the Date of the
Taking as if that were the date originally set forth as the
Expiration Date.
Upon a partial taking and this Lease continuing in force as to
any part of the
Leased Premises, the Rent shall be adjusted according to the
rentable area
remaining (taking into account whether the remaining portion of
the Leased
Premises is a portion of the Office Premises or the Basement
Premises). Anything
contained herein to the contrary notwithstanding, if the
applicable Rent
Commencement Date has not occurred with respect to the part of
the Leased
Premises that is the subject of the abatement of Rent pursuant
to this Article
10, then the Rent Commencement Date with respect to such part of
the Leased
Premises shall be extended one day for each day of the
applicable abatement
period pursuant to this Article 10.
C. Landlord shall be entitled to receive the entire award or
payment in connection with any taking without deduction
therefrom for any estate
vested in Tenant by this Lease, including the value of any
unexpired portion of
the Term, and Tenant shall receive no part of such award except
as hereinafter
expressly provided in this Article 10. Tenant hereby expressly
assigns to
Landlord all of its right, title, and interest in and to every
such award or
payment; provided, however, that Tenant shall have the right to
make a separate
claim for its relocation expenses, and for any of Tenant's
fixtures and personal
property taken other than that for which Tenant used any portion
of Landlord's
Contribution.
D. If the temporary use or occupancy of all or any part of
the
Leased Premises shall be taken by condemnation or in any other
manner for any
public or quasi-public use or purpose during the Term, Tenant
shall be entitled
to receive the entire award or payment for such taking and this
Lease shall be
and remain unaffected by such taking and Tenant shall continue
to be responsible
for all of its obligations hereunder and shall continue to pay
the Rent when
due. If the period of temporary use or occupancy shall extend
beyond the
Expiration Date of this Lease, that part of the award which
represents
compensation for the use and occupancy of the Leased Premises
(or a part
thereof) shall be divided between Landlord and Tenant so that
Tenant shall
receive so much thereof as represents the period up to and
including such
(11)
<PAGE>
Expiration Date and Landlord shall receive so much thereof as
represents the
period after such Expiration Date. All monies paid as, or as
part of, an award
for temporary use and occupancy for a period beyond the date to
which the Fixed
Annual Rent and Additional Rent have been paid, shall be held
and applied by
Landlord as a trust fund for payment of the Rent becoming due
hereunder.
11. OMITTED.
12. OMITTED.
13. Access to Leased Premises.
A. Landlord and Landlord's agents shall have the right (but
shall
not be obligated) to enter the Leased Premises in any emergency
or at the
direction of any governmental or quasi-governmental authority or
governmental
agent at any time, and shall also have the right to enter the
Leased Premises at
other times for other reasons (which include, without
limitation, for the
purpose of making repairs, replacements and improvements as
Landlord may deem
necessary and reasonably desirable to the Leased Premises or to
any other
portion of the Building or which Landlord may elect to perform);
provided,
however, and notwithstanding any contrary provision of this
Lease except in case
of emergency or at the direction of any governmental authority
or governmental
agent, Landlord shall give Tenant at least one Business Day's
notice of such
entry. Tenant shall have the right to cause a representative of
Tenant to
accompany Landlord on any such entry into the Leased Premises.
Tenant shall
permit Landlord to use, maintain and replace pipes, ducts, and
conduits in and
through the Leased Premises and to erect new pipes, ducts, and
conduits therein,
but (notwithstanding anything to the contrary herein) only if
they are concealed
within the then-existing walls, floors, or ceilings or if not
commercially
reasonable then boxed. Landlord may, during the progress of any
work in the
Leased Premises, take all necessary materials and equipment into
said Leased
Premises without the same constituting an eviction, nor shall
the 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, except as
set forth in Article 66. In performing such work, Landlord shall
use
commercially reasonable efforts to minimize interference with
the operation of
Tenant's business. Landlord shall not store any unreasonable
amounts of
construction materials or equipment in the Leased Premises.
B. Subject to the notice requirements of Paragraph 13A,
throughout the Term hereof, Landlord shall have the right to
enter the Leased
Premises at reasonable hours for the purpose of showing the same
to prospective
purchasers or mortgagees of the Building, and during the last
twelve (12) months
of the Term, for the purpose of showing the same to prospective
tenants. If, in
any emergency or at the direction of any governmental or
quasi-governmental
authority or governmental agent Tenant is not present to open
and permit an
entry into the Leased Premises, Landlord or Landlord's agents
may enter the same
whenever such entry may be necessary or permissible by master
key or forcibly,
and provided reasonable care is exercised to
(12)
<PAGE>
safeguard Tenant's property, such entry shall not render
Landlord or its agents
liable therefor, nor shall the obligations of Tenant hereunder
be affected.
C. Any reservation of a right by Landlord to enter upon the
Leased Premises to inspect the same and/or to make or perform
any repairs,
alterations, or other work in, to, or about the Leased Premises
which, in the
first instance, is Tenant's obligation pursuant to this Lease,
shall not be
deemed to (i) impose any obligation on Landlord to do so, (ii)
render Landlord
liable to Tenant or any third party for the failure to do so, or
(iii) relieve
Tenant from any obligation to indemnify Landlord as otherwise
provided elsewhere
in this Lease.
14. Vault, Vault Space, Area. 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, blueprint or
plan, or anything contained elsewhere in this Lease to, the
contrary
notwithstanding. Landlord makes no representation as to the
location of the
property line of the Building. All vaults and vault space and
all such areas not
within the property line of the Building, which Tenant may be
permitted to use
and/or occupy, are to be used and/or occupied under a revocable
license, and if
any such license be revoked, or if the amount of such space or
area be
diminished or required by any federal, state or municipal
authority or public
utility, Landlord shall not be subject to any liability, nor
shall Tenant be
entitled to any compensation or diminution or abatement of rent,
nor shall such
revocation, diminution or requisition be deemed constructive or
actual eviction.
Any tax, fee or charge of municipal authorities for such vault
or area shall be
paid by Tenant.
15. Occupancy; Certificate of Occupancy.
A. Tenant will not at any time use or occupy the Leased
Premises
in violation of the certificate of occupancy issued for the
Building, provided
that the certificate of occupancy permits the Leased Premises to
be used for
"office" use. Landlord makes no representation as to the
condition of the Leased
Premises, and Tenant agrees to accept the same subject to
violations, whether or
not of record, except as expressly provided herein to the
contrary, subject,
however, to Landlord's other obligations hereunder.
B. In the event of a building code violation affecting the
Office
Premises or the Building that prevents Tenant from obtaining a
building permit
for Tenant's Initial Changes, Landlord agrees to cause any such
violation to be
cured and removed as of record, but shall not be obligated to
take any action
under this paragraph B regarding such violation to the extent
that such
violation did not actually prevent Tenant from obtaining a
building permit. In
the event Tenant has taken all necessary action to obtain a
building permit but
is actually prevented from obtaining a building permit solely
because of any
such violation, the First Rent Commencement Date and/or the
Extra Floor Rent
Commencement Date, as the case may be, shall be extended by the
number of days
to the extent that Tenant was actually delayed in obtaining a
building permit
because of such violation and Tenant shall not commence
(13)
<PAGE>
the performance of the Tenant's Initial Changes as a result
thereof. In the
event that (i) Tenant takes occupancy of and uses (or attempts
to take occupancy
of and/or use) the Office Premises for Permitted Uses prior to
the issuance of a
temporary certificate of occupancy (the "TCO"), (ii) Tenant has
obtained and
delivered to Landlord all final sign-offs required by law in
connection with
Tenant's Work in order for Landlord to apply for or obtain a
TCO, (iii) the
failure to obtain the TCO is not caused by the acts or omissions
of Tenant, its
agents or contractors (including those related to or arising
from Tenant's
Initial Changes), and (iv) a violation results solely and
directly from Tenant's
mere use for a Permitted Use as opposed to a particular manner
of use, Landlord
shall pay any and all fines solely and directly resulting from
such
violation(s); it being understood and agreed that (except as
expressly provided
in this Paragraph B) Tenant shall not be entitled to a reduction
or abatement of
Fixed Annual Rent or other compensation on account of the
failure to obtain such
TCO. Anything contained herein to the contrary notwithstanding,
and without
limiting the foregoing provisions of this Article 15B, in the
event that Tenant
is required to vacate or is prevented from taking occupancy of
the Office
Premises solely as a result of a final unappealable order issued
by a judicial
or other governmental agency to cease and desist occupancy of
the Office
Premises based on non-issuance of a certificate of occupancy for
the Office
Premises, (or is otherwise required by Legal Requirements to
vacate or is
prohibited by Legal Requirements from taking occupancy), and
violation of such
order or other Legal Requirement would subject Tenant or its
officers,
directors, employees or shareholders to criminal liability which
will result in
imprisonment, and so long as Tenant actually vacates the entire
Office Premises
or is prevented from taking occupancy, as the case may be, and
such order or
other Legal Requirement was not the result of any Tenant Changes
or any act or
omission of Tenant, its agents, contractors or subcontractors
(other than mere
occupancy and use, or attempted occupancy and use, of the Office
Premises for a
Permitted Use as opposed to a particular manner of use), the
Fixed Annual Rent
for the Office Premises shall abate from the date Tenant
actually vacates the
Office Premises until such time as the entire Office Premises
may be occupied or
is occupied for the operation of its business (or if the Rent
Commencement Date
has not yet occurred, the Rent Commencement Date shall be
extended by the number
of days that Tenant's initial occupancy was postponed, or by the
number of days
that Tenant was not permitted to occupy). If notwithstanding
such order being
issued, Landlord shall request Tenant to occupy the Office
Premises and provided
such occupancy shall not subject Tenant or its officers,
directors or employees
to criminal liability and Tenant is able to conduct its ordinary
business in the
Office Premises, Tenant shall occupy the Office Premises and
Landlord shall
indemnify and hold Tenant harmless from and against any fines,
penalties (and
any judgment in connection therewith) and costs and expenses
including, without
limitation, reasonable attorney's fees and disbursements,
incurred or suffered
by Tenant arising out of such occupancy.
C. Tenant at its cost and expense shall be responsible for
securing administrative sign offs from all necessary municipal
agencies required
for compliance with New York City codes on applications filed
for Tenant Changes
and shall deliver a letter of completion to Landlord or its
agent. Thereupon
Landlord will
(14)
<PAGE>
proceed with the necessary steps to schedule and coordinate a
certificate of
occupancy inspection with the Department of Buildings.
D. Landlord shall diligently and in a commercially
reasonably
manner, at its sole cost and expense, seek to obtain a permanent
certificate of
occupancy for the Building, and until such time as Landlord
obtains a permanent
certificate of occupancy, Landlord shall at all times, after
obtaining the first
TCO as provided in this Lease, keep a TCO in effect, which TCO
or permanent
certificate of the occupancy for the Building shall permit
"office" use.
16. Bankruptcy.
A. Anything elsewhere in this Lease to the contrary
notwithstanding, this Lease may be cancelled by Landlord by the
sending of a
written notice to Tenant after the happening of any one or more
of the following
events: (i) within 90 days after the commencement of a case in
bankruptcy or
under the laws of any state naming Tenant (or a guarantor, if
any, of any of
Tenant's obligations under this Lease) as the debtor; or (ii)
within 30 days
after the making by Tenant (or a guarantor, if any, 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 be entitled to possession of the Leased
Premises but shall
forthwith quit and surrender the Leased 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 or
responsible for Tenant's obligations under this Lease.
B. It is stipulated and agreed that in the event of the
termination of this Lease pursuant to Paragraph 16A hereof,
Landlord shall
forthwith, notwithstanding any other provisions of this Lease to
the contrary,
be entitled to recover from Tenant as and for liquidated
damages, an amount
equal to the difference between the rent reserved hereunder for
the unexpired
portion of the term demised and the fair and reasonable rental
value of the
Leased 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
Leased 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
Leased Premises or any part thereof be re-let by Landlord for
the unexpired term
of this Lease, or any part thereof, before presentation of proof
of such
liquidated damages to any court, commission or tribunal, the
amount of rent
reserved upon such re-letting shall be deemed to be the fair and
reasonable
rental value for the part or the whole of the Leased Premises so
re-let during
the term of the re-letting. Nothing herein contained shall limit
or prejudice
the right of Landlord 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
(15)
<PAGE>
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.
C. Without limiting any of the foregoing provisions of this
Article 16 or Articles 17 or 18 hereof, if, pursuant to the
Bankruptcy Code of
1978, as the same may be amended, Tenant is permitted to assign
this Lease in
disregard of the obligations contained in Article 48 hereof,
Tenant agrees that
adequate assurance of future performance by the assignee
permitted under such
Code shall mean the deposit of cash security with Landlord in an
amount equal to
the sum of six (6) months Fixed Annual Rent then reserved
hereunder plus an
amount equal to all Additional Rent payable under this Lease for
the calendar
year preceding the year in which such assignment is intended to
become
effective, which deposit shall be held by Landlord for the
balance of the Term
as security for the full and faithful performance of all of the
obligations
under this Lease on the part of Tenant yet to be performed. If
Tenant receives
or is to receive any valuable consideration for such an
assignment of this
Lease, sixty (60%) percent of such consideration shall be and
become the sole
and exclusive property of Landlord and shall be paid over to
Landlord directly
by such assignee. In addition, adequate assurance shall mean
that any such
assignee of this Lease shall have a tangible net worth,
exclusive of good will,
equal to at least ten (10) times the aggregate of the Fixed
Annual Rent reserved
hereunder plus all Additional Rent for the preceding calendar
year as aforesaid.
17. Default.
A. If (i) Tenant defaults in the payment of Rent (a "Payment
Default"); or (ii) Tenant defaults in fulfilling any of the
covenants of this
Lease other than the covenants for the payment of rent or
additional rent; if
any execution or attachment shall be issued against Tenant or
any of Tenant's
property, whereupon the Leased Premises shall be taken or
occupied by someone
other than Tenant; or if this Lease be rejected under ss.365 of
Title 11 of the
U.S. Code (Bankruptcy Code); or if Tenant shall have failed,
after five (5)
Business Days' written notice, to redeposit with Landlord any
portion of the
security deposit hereunder which Landlord has applied to the
payment of any Rent
due and payable hereunder; or if Tenant shall be in default with
respect to any
other lease between Landlord and Tenant after the applicable
notice and cure
periods set forth therein; then, in any one or more of such
events, upon
Landlord serving a written thirty (30) days' notice (or in the
case of a Payment
Default, a written five (5) Business Days' notice which may be
the demand notice
as provided in Article 7 of the New York State Real Property
Actions and
Proceedings Law) upon Tenant specifying the nature of said
default, and upon the
expiration of said thirty (30) days (or in the case of a Payment
Default, five
(5) Business Days), if Tenant shall have failed to comply with
or remedy such
default, or if the said default or omission complained of shall
be other than a
Payment Default and 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 curing such default within such thirty
(30) day
period, or shall not thereafter with reasonable diligence and in
good faith,
proceed to remedy or cure such default, then Landlord may serve
a written five
(5) days' notice of cancellation of this
(16)
<PAGE>
Lease upon Tenant (a "5-Day Notice"), and upon the expiration of
said five (5)
days this Lease and the Term shall end and expire as fully and
completely on the
expiration of such five (5) day period, and Tenant shall then
quit and surrender
the Leased Premises to Landlord, but Tenant shall remain liable
as hereinafter
provided.
B. If the 5-Day Notice provided for in the Paragraph 17A
hereof
shall have been given, and the Term shall expire as aforesaid;
then, and in any
of such events, Landlord may without notice, re-enter the Leased
Premises and
dispossess Tenant by summary proceedings or otherwise, and the
legal
representative of Tenant or other occupant of the Leased
Premises, and remove
their effects and hold the Leased 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.
C. Landlord shall not be deemed in default in fulfilling any
of
the covenants of this Lease unless and until Tenant serves a
written five (5)
Business Days' notice upon Landlord specifying the nature of
said default, and
Landlord's failure to comply with or remedy such default within
said five (5)
Business Days or if the said default or omission complained of
shall be other
than a Payment Default and shall be of a nature that the same
cannot be
completely cured or remedied within said five (5) day period,
and if Landlord
shall not have diligently commenced curing such default within
such five (5) day
period, or shall not thereafter with reasonable diligence and in
good faith,
proceed to remedy or cure such default. The provisions of this
paragraph C are
expressly subject to, and shall in no event limit, the rights
and remedies of
Tenant under Articles 1G, H, I, J, 41, 42, and 66.
18. Remedies of Landlord and Waiver of Redemption.
A. In case of any such re-entry, expiration and/or dispossess
by
summary proceedings or otherwise, (i) the Rent shall become due
thereupon and be
paid up to the time of such re-entry, dispossess and/or
expiration, (ii)
Landlord may re-let the Leased Premises or any part or parts
thereof, either in
the name of Landlord or otherwise, for a term or terms, which
may at Landlord's
option be less than or exceed the period which would otherwise
have constituted
the balance of the Term, and may grant concessions or free rent
or charge a
higher rental than that in this Lease, and/or (iii) Tenant or
the legal
representatives of Tenant shall also pay to Landlord as
liquidated damages for
the failure of Tenant to observe and perform said Tenant's
covenants herein
contained, and any deficiency between the rent hereby reserved
and/or covenanted
to be paid and the net amount, if any, of the rents collected on
account of the
lease or leases of the Leased Premises for each month of the
period which would
otherwise have constituted the balance of the Term. The failure
of Landlord to
relet the Leased 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
Landlord may incur
in good faith in connection with re-letting, such as legal
expenses, reasonable
attorney's fees, brokerage, advertising and for keeping the
Leased Premises in
good order or for preparing the same for re-letting. Any such
reasonable
liquidated damages shall be
(17)
<PAGE>
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 Landlord to collect the
deficiency for
any subsequent month by a similar proceeding. Landlord, in
putting the Leased
Premises in good order or preparing the same for re-rental may,
at Landlord's
option, make such alterations, repairs, replacements, and/or
decorations in the
Leased Premises as Landlord, in Landlord's sole judgment,
considers advisable
and necessary for the purpose of re-letting the Leased 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.
Landlord shall in no event be liable in any way whatsoever for
failure to re-let
the Leased Premises, or in the event that the Leased Premises
are re-let, for
failure to collect the rent thereof under such re-letting, and
in no event shall
Tenant be entitled to receive any excess, if any, of such net
rents collected
over the sums payable by Tenant to Landlord hereunder.
B. In lieu of the remedies set forth in Article 18A,
Landlord,
upon a termination of the Lease pursuant to Article 17, may
collect as damages
the amount set forth in Article 16A.
C. In the event of a breach or threatened breach by Tenant of
any
of the covenants or provisions hereof, Landlord 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 Landlord from
any other remedy, in law or in equity. Tenant hereby waives any
and all rights
of redemption granted by or under any expressly present or
future laws in the
event of Tenant being evicted or dispossessed for any cause, or
in the event of
Landlord obtaining possession of the Leased Premises, by reason
of the violation
by Tenant of any of the covenants and conditions of this Lease,
or otherwise.
19. Fees and Expenses.
A. 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
applicable notice and cure periods (except in an emergency),
then, unless
otherwise provided elsewhere in this Lease, Landlord may
immediately, or at any
time thereafter and without notice, perform the obligation of
Tenant thereunder.
If Landlord, in connection with the foregoing, or in connection
with any default
by Tenant hereunder, makes any expenditures or incurs any
obligations for the
payment of money, including but not limited to reasonable
attorneys' fees, in
instituting, prosecuting or defending any action or proceeding,
then Tenant will
reimburse Landlord 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
Landlord within ten (10) days of rendition of any bill or
statement to Tenant
therefor. If the Term shall have expired at the time of making
of such
(18)
<PAGE>
expenditures or incurring of such obligations, such sums shall
be recoverable by
Landlord, as damages.
B. If Tenant, in connection with any default by Landlord
hereunder after applicable notice and cure periods, makes any
expenditures or
incurs any obligations for the payment of money, including but
not limited to
reasonable attorneys' fees, in instituting, prosecuting or
defending any action
or proceeding, and prevails in any such action or proceeding,
then Landlord will
reimburse Tenant for such sums so paid, or obligations incurred,
with interest
and costs. The foregoing expenses incurred by reason of
Landlord's default shall
be paid by Landlord to Tenant within ten (10) days of rendition
of any bill or
statement to Landlord therefore and if not, Tenant may, at its
election, offset
such amount against the Rent next coming due. If the Term shall
have expired at
the time of making of such expenditures or incurring of such
obligations, such
sums shall be recoverable by Tenant, as damages.
20. Building Alterations and Management. Landlord shall have the
right
at any time without the same constituting an eviction and
without incurring
liability to Tenant therefor, and provided that there is no
material adverse
effect on the services provided to Tenant and Tenant has
reasonable access to
the Office Premises and to the Basement Premises (subject to
Article 65 hereof)
and to the common areas of the Building, to change the
arrangement and/or
location of public areas of the Building such as the following
public areas:
public entrances, (provided however Landlord agrees, upon
completion of
Landlord's Common Area Improvements, not to eliminate the 41st
Street lobby and
entrance to the Building on 41st Street), passageways, doors,
doorways,
corridors, elevators, stairs, toilets or other public parts of
the Building, and
(subject to Tenant's possible rights under Article 63) to change
the name,
number or designation by which the Building may be known.
Without limiting the
provisions of the foregoing sentence, if Landlord elects to
change the address
of the Building (including, without limitation, by denoting the
address of the
Building by reference to an area of Manhattan, such as Bryant
Park or Times
Square), then at Landlord's request, Tenant shall cooperate with
Landlord to
register such new address with the U.S. Postal Service (or other
applicable
governmental agency, as necessary or advisable). Subject to
Article 66, there
shall be no allowance to Tenant for diminution of rental value
and no liability
on the part of Landlord by reason of inconvenience, annoyance or
injury to
business arising from Landlord or other tenants making any
repairs in the
Building or any such alterations, additions and improvements.
Furthermore,
Landlord shall have the right to impose and Tenant shall not
have any claim
against Landlord by reason of Landlord's imposition of such
controls on access
and the manner of access to the Building by Tenant Parties and
Tenant's social
or business visitors as Landlord may deem necessary for the
security of the
Building and its occupants (but in no event will Landlord impose
or enforce such
controls in a discriminatory manner against Tenant).
21. No Representations by Landlord. Except as expressly provided
in
this Lease, neither Landlord nor Landlord'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 Leased Premises, the rents,
leases, expenses of
operation or any other
(19)
<PAGE>
matter or thing affecting or related to the Leased Premises, 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. Except
for the Existing
Lease and the Surrender Agreement, all understandings and
agreements heretofore
made between the parties hereto are merged in this Lease, which
alone fully and
completely expresses the agreement between Landlord 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.
22. OMITTED
23. Quiet Enjoyment. Landlord covenants and agrees with Tenant
that
while this Lease is in full force and effect and so long as
Tenant is not in
default after notice and expiration of any applicable cure
period, Tenant may
peaceably and quietly enjoy the Leased Premises hereby demised,
subject,
nevertheless, to the terms and conditions of this Lease
including, but not
limited to, Article 31 hereof, and to the ground leases,
underlying leases and
mortgages mentioned herein.
24. Failure to Give Possession. If Landlord is unable to
give
possession of the Leased Premises on the dates as and when set
forth in this
Lease because of the holding-over or retention of possession of
any tenant,
undertenant or occupants, or if the Leased Premises or Building
has not been
sufficiently completed to make the Leased Premises ready for
occupancy in
accordance with the terms hereof, or because of the fact that a
certificate of
occupancy has not been procured, or for any other reason,
Landlord shall not be
subject to any liability (subject however to Article 1G, H and
I) 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, but the Rent payable hereunder shall be abated until
Landlord delivers
possession in condition required by this Lease. The provisions
of this article
are intended to constitute "an express provision to the
contrary" within the
meaning of Article 223-a of the New York Real Property Law.
25. No Waiver. The failure of Landlord 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 Landlord 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 failure of Tenant to seek redress for violation
of, or to insist
upon the strict performance of, any covenant or condition of
this Lease 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
Landlord or payment by Tenant 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
Landlord or
Tenant unless such waiver be in writing signed by Landlord or
Tenant, as the
case may be. No payment
(20)
<PAGE>
by Tenant or receipt by Landlord 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 Landlord may accept such check or payment
without prejudice to
Landlord's right to recover the balance of such rent or pursue
any other remedy
in this Lease provided. No payment by Landlord or receipt by
Tenant of a lesser
amount than properly due under this Lease shall be deemed to be
other than on
account and Tenant may accept such check or payment without
prejudice to
Tenant's right to recover the balance thereof or pursue any
other remedy in this
Lease provided. No act or thing done by Landlord or Landlord's
agents during the
term hereby demised shall be deemed an acceptance of a surrender
of the Leased
Premises, and no agreement to accept such surrender shall be
valid, unless in
writing signed by Landlord. No employee of Landlord or
Landlord's agent shall
have any power to accept the keys of said premises prior to the
expiration of
this Lease, and the delivery of keys to any such agent or
employee shall not
operate as a termination of this Lease or a surrender of the
Leased Premises.
26. Waiver of Trial by Jury. It is mutually agreed by and
between
Landlord 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, on any matters
whatsoever
arising out of, or in any way connected with, this Lease, the
relationship of
Landlord and Tenant hereunder, Tenant's use of, or occupancy of,
the Leased
Premises, and any emergency statutory or any other statutory
remedy. It is
further mutually agreed that in the event Landlord commences any
proceeding or
action for possession, including a summary proceeding for
possession of the
Leased Premises, Tenant will not interpose any counterclaim of
whatever nature
or description in any such proceeding, including a counterclaim
under Article 4,
except for mandatory counterclaims.
27. Inability to Perform. 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 (except to the extent expressly set forth in
this Lease,
including Article 66) because Landlord is unable to fulfill any
of its
obligations under this Lease, or to supply, or is delayed in
supplying, any
service expressly or impliedly to be supplied, or is unable to
make, or is
delayed in making, any repair, additions, alterations, or
decorations, or is
unable to supply, or is delayed in supplying, any equipment,
fixtures, or other
materials, if Landlord is prevented or delayed from so doing by
reason of Force
Majeure. In any event Landlord agrees to use commercially
reasonable efforts to
perform its obligations under this Lease.
28. OMITTED.
29. Services Provided by Landlord. As supplemented by the
provisions
of Article 49, during the Term, Landlord shall provide the
following services:
(21)
<PAGE>
A. at least four (4) elevators that serve floors 1 through 10
(at
least two (2) of which shall be passenger elevators and at least
one of which
shall be a freight/passenger elevator) in the 41st Street lobby
during Business
Hours on Business Days, with at least one (1) passenger elevator
subject to call
in the 41st Street lobby at all other times;
B. except for the Basement Premises, heat to the Leased
Premises
in accordance with the specifications on Exhibit J, during
Business Hours;
C. except for the Basement Premises, hot and cold water for
ordinary lavatory purposes; cold water for make-up water to
humidification
systems in the data center; and cold water for ordinary pantry
and cleaning
purposes; provided, however, if in Landlord's good faith
judgment Tenant uses or
consumes water for any other purpose or in unusual quantities,
Landlord may
install a water meter at Tenant's expense, which Tenant shall
thereafter
maintain at Tenant's expense in good working order and repair,
to register such
water consumption, and Tenant shall pay for water consumed as
shown on said
meter as additional rent as and when bills are rendered; and
provided further
that Tenant expressly acknowledges that the electricity for any
hot-water heater
providing hot water to the Leased Premises or any portion
thereof shall be
measured on Tenant's submeter(s) and, accordingly, that all
electrical charges
therefor shall be paid by Tenant;
D. except for the Basement Premises, condenser water for the
base
building air conditioning/cooling in accordance with the
specifications set
forth on Exhibit J during Business Hours, and access to outside
air for
ventilation in accordance with the specifications set forth on
Exhibit J, 24
hours a day, 365 days a year. Landlord will also make available
to Tenant for
its supplemental needs up to 50 tons of condenser water, 24
hours a day, 365
days a year, at an annual cost of $500 per ton (and Tenant shall
pay no tap-in
fee).
E. Subject to Landlord's obligations under Article 27 and to
Article 66, Landlord reserves the right to stop services of the
heating,
ventilating, elevators, plumbing, air-conditioning, electric,
power systems or
cleaning or other services, if any, when necessary by reason of
accident, or for
repairs, alterations, replacements or improvements necessary or
desirable in the
judgment of Landlord, or to comply with Legal Requirements, for
as long as may
be reasonably required by reason thereof. Landlord agrees to use
commercially
reasonable efforts to mitigate such interruption of
services.
30. Captions. The captions are inserted only as a matter of
convenience and for reference, and in no way define, limit or
describe the scope
of this Lease nor the intent of any provisions thereof.
31. Construction of Certain Terms. The term "office", or
"offices",
wherever used in this Lease, shall not be construed to mean
premises used as a
retail store or stores, for the retail sale at any time, of
goods, wares or
merchandise, of any
(22)
<PAGE>
kind, or as a restaurant, shop, booth, bootblack or other stand,
barber shop, or
for other similar purposes, or for manufacturing other than
sample making.
The term "Landlord" means a landlord or lessor, and as used in
this
Lease means only the Landlord, or the mortgagee in possession
for the time
being, of the Property (or the landlord of a lease of the
Building or of the
Property) of which the Leased Premises form a part, so that in
the event of any
sale or sales or conveyance, assignment or transfer of said
Property, or of this
Lease, or in the event of a lease of said Building, or of the
Property, the said
Landlord shall be, and hereby is, entirely freed and relieved of
all covenants
and obligations of Landlord hereunder, and it shall be deemed
and construed
without further agreement between the parties or their
successors in interest,
or between the parties and the purchaser, at any such sale, or
the said lessee
of the Building, or of the land and Building, that the
purchaser, grantee,
assignee or transferee or the lessee of the Building has assumed
and agreed to
carry out any and all covenants and obligations of Landlord,
hereunder.
The words "re-enter" and "re-entry as used in this Lease are
not
restricted to their technical legal meaning.
Wherever it is expressly provided in this Lease that consent
shall not
be unreasonably withheld, such consent shall not be unreasonably
withheld,
delayed or conditioned.
32. Adjacent Excavation Shoring. If an excavation shall be made
upon
land adjacent to the Leased 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 Leased Premises for the purpose of
doing such work as
said person shall deem necessary to preserve the wall or the
Building, of which
Leased Premises form a part, from injury or damage, and to
support the same by
proper foundations, without any claim for damages or indemnity
against Landlord,
or diminution or abatement of rent. Landlord agrees to endeavor
to have such
person use commercially reasonable efforts to minimize
interference with the
conduct of Tenant's business.
33. Rules and Regulations. Tenant and Tenant's employees,
agents,
visitors, subtenants and licensees shall observe faithfully, and
comply strictly
with, the rules and regulations set forth on Exhibit H and such
other and
further reasonable Rules and Regulations as Landlord and
Landlord's agents may
from time to time adopt (collectively, the "Rules and
Regulations") upon
reasonable advance notice to Tenant (but in no event less than
30 days except in
compliance with and as required by Legal Requirements). In case
Tenant disputes
the reasonableness of any additional Rules or Regulations
hereafter made or
adopted by Landlord or Landlord's agents, the parties hereto
agree to submit the
question of the reasonableness of such Rules or Regulations for
decision to the
New York office of the American Arbitration Association ("AAA"),
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 or a notice, in
(23)
<PAGE>
writing, upon Landlord, within thirty (30) days after the giving
of notice
thereof. Nothing in this Lease contained shall be construed to
impose upon
Landlord 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
Landlord shall not be liable to Tenant for violation of the same
by any other
tenant, its servants, employees, agents, visitors or licensees,
provided,
however, that the Rules and Regulations shall be enforced
against Tenant only in
a nondiscriminatory manner.
34. Annual Escalation for Fixed Annual Rent in Lieu of
Operating
Expense. In lieu of a passthrough of operating expenses
hereunder, Tenant shall
pay to Landlord the increases in Fixed Annual Rent set forth on
Schedule 1
resulting from the CPI Adjustment.
35. Estoppel Certificate.
A. Tenant, at any time, and from time to time, upon at least
ten
(10) days prior notice by Landlord, shall execute, acknowledge
and deliver to
Landlord, and/or to any other person, firm or corporation
specified by Landlord,
a statement certifying that this Lease is unmodified and in full
force and
effect (or, if there have been modifications, that the same is
in full force and
effect as modified and stating the modifications), stating the
dates to which
the Rent and Additional Rent have been paid, and stating whether
or not, to
Tenant's knowledge, there exists any default by Landlord under
this Lease, and,
if so, specifying each such default and such other information
as shall be
required of Tenant.
B. Landlord, at any time, and from time to time, upon at
least
ten (10) days prior notice by Tenant, shall execute, acknowledge
and deliver to
Tenant, and/or to any other person, firm or corporation
specified by Tenant, a
statement certifying that this Lease is unmodified and in full
force and effect
(or, if there have been modifications, that the same is in full
force and effect
as modified and stating the modifications), stating the dates to
which the Rent
and has been paid, and stating whether or not, to actual
Landlord's knowledge,
there exists any default by Tenant under this Lease, and, if so,
specifying each
such default and such other information as shall be required of
Landlord.
36. Successors and Assigns. The covenants, conditions and
agreements
contained in this Lease shall bind and inure to the benefit of
Landlord and
Tenant and their respective heirs, distributees, executors,
administrators,
successors, and except as otherwise provided in this Lease,
their assigns.
Tenant shall look only to Landlord's estate and interest in the
Property, and
any insurance proceeds thereof, for the satisfaction of Tenant's
remedies for
the collection of a judgment (or other judicial process) against
Landlord in the
event of any default by Landlord hereunder, and no other
property or assets of
such Landlord (or any partner, member, officer or director
thereof, disclosed or
undisclosed), shall be subject to levy, execution or other
enforcement procedure
for the satisfaction of Tenant's remedies under, or with
respect
(24)
<PAGE>
to, this Lease, the relationship of Landlord and Tenant
hereunder, or Tenant's
use and occupancy of the Leased Premises.
37. Certain Defined Terms. In addition to the other terms which
are
elsewhere defined in this Lease, each of the following
capitalized terms has the
meaning set forth below:
"AAA" is defined in Article 33.
"ADA" is defined in Article 48C.
"Additional Rent" is defined in Article 1B.
"Affiliate" is defined in Article 48N.
"Available" is defined in Article 60 M(ii).
"Basement Premises" means a single unit containing approximately
1,000
square feet in a location designated by Landlord in the basement
of the
Building.
"Basement Commencement Date" means the date on which Landlord
delivers
possession of the Basement Premises to Tenant vacant, broom
clean, with demising
walls constructed, a door with hardware installed and lighting
installed and
free of all asbestos.
"Basement Rent Commencement Date" means the date six (6) months
after
the Basement Commencement Date; provided, however, if after the
Basement
Commencement Date, Tenant can demonstrate that solely as a
direct result of a
Landlord Delay, Tenant was actually delayed in taking possession
of the Basement
Premises, the Basement Rent Commencement Date will be extended
by the number of
days of such Landlord's Delay.
"Building" means the building, fixtures, equipment and other
improvements and appurtenances known as 114 West 41st Street and
as 113-119 West
40th Street in the Borough of Manhattan, City, County and State
of New York.
"Business Days" is defined in Article 49A.
"Business Hours" is defined in Article 49A.
"Commencement Date" means the First Commencement Date, the Extra
Floor
Commencement Date (if any), and/or the Basement Commencement
Date.
""CPI Adjustment" means 100%, plus the lesser of (A) 1.5% and
(B) five
(5) times the percentage increase (if any) in the CPI-U for the
month
immediately preceding the first month of each Rent Year
commencing with the
Second Rent Year over the CPI-U for the same calendar month in
the preceding
calendar year. The
(25)
<PAGE>
increase in the Consumer Price Index shall be determined on an
annual basis,
except that there shall be excluded from the computation thereof
any month or
months or years during which the percentage increase in the
Consumer Price Index
shall be zero or a negative number, and only months or years
with "positive"
percentages shall be considered.
"CPI-U" means the United States Department of Labor, Bureau of
Labor
Statistics, Consumer Price Index for New York-Northern N.J.-Long
Island, for all
Urban Consumers, All Items (1982-84=100), or a successor or (if
there is no
longer a CPI-U or successor thereto) a reasonable substitute
index appropriately
adjusted.
"Electric Company" is defined in Article 39A.
"Existing Lease" is defined in the definition of "Surrender
Agreement."
"Exhibit C" means Exhibits C-1, C-2 and C-3, collectively.
"Extra Floor" means the 5th floor, unless the 5th floor is a
part of
the Initial Premises.
"Extra Floor Commencement Date" means (if the Extra Floor is not
part
of the Initial Premises) the date on which the Extra Floor is
delivered to
Tenant vacant and with the Pre-Commencement Date Work thereon
Substantially
Completed and otherwise in accordance with the requirements of
this Lease;
provided, however, that if and to the extent that the Extra
Floor Commencement
Date is delayed due to any Tenant Delay, then such Extra Floor
Commencement Date
shall be deemed to have occurred as of the date that it would
have occurred if
such Tenant Delay had not taken place.
"Extra Floor Rent Commencement Date" means the date six (6)
months
after the Extra Floor Commencement Date, provided, however, if
after the Extra
Floor Commencement Date, Tenant can demonstrate that solely as a
direct result
of Landlord Delay, Tenant is actually delayed from performing
Tenant's Initial
Changes on the Extra Floor and Tenant is actually delayed in
taking possession
of the Extra Floor for the ordinary conduct of its business, the
Extra Floor
Rent Commencement Date will be extended by the number of days of
such Landlord
Delay, provided further however, the extension of the Extra
Floor Rent
Commencement Date shall be prorated and applicable only to that
area of the
Extra Floor directly impacted or directly affected by a Landlord
Delay or
failure to timely complete an item or items of work as shown on
Exhibit C
("Affected Area"), provided further however, if any additional
area of the Extra
Floor is also affected or impacted and Tenant is able to
demonstrate such effect
or impact to Landlord's reasonable satisfaction (notwithstanding
that all of
Landlord's Work is completed in such additional area), such
additional area of
the Extra Floor shall also be deemed an Affected Area for the
purposes of
extending the Extra Floor Rent Commencement Date.
(26)
<PAGE>
"First Commencement Date" means the date the Initial Premises
is
delivered to Tenant vacant and with the Pre-Commencement Date
Work thereon
Substantially Completed and otherwise in accordance with the
requirements of
this Lease; provided, however, that if and to the extent that
the First
Commencement Date is delayed due to any Tenant Delay, then such
First
Commencement Date shall be deemed to have occurred as of the
date that it would
have occurred if such Tenant Delay had not taken place.
"First Rent Commencement Date" means the date six (6) months
after the
First Commencement Date, provided, however, if after the First
Commencement
Date, Tenant can demonstrate that solely as a direct result of a
Landlord Delay,
Tenant is actually delayed from performing Tenant's Initial
Changes in the
Initial Premises and Tenant is actually delayed in taking
possession of the
Initial Premises for the ordinary conduct of its business, the
First Rent
Commencement Date will be extended by the number of days of such
Landlord Delay,
provided further however, the extension of the First Rent
Commencement Date
shall be prorated and applicable only to that area of the
Initial Premises
directly impacted or directly affected by a Landlord Delay or
failure to timely
complete an item or items of work as shown on Exhibit C
("Affected Area"),
provided further however, if any additional area of the Initial
Premises is also
affected or impacted and Tenant is able to demonstrate such
effect or impact to
Landlord's reasonable satisfaction (notwithstanding that all of
Landlord's Work
is completed in such additional area), such additional area of
the Initial
Premises shall also be deemed an Affected Area for the purposes
of extending the
First Rent Commencement Date.
"Fixed Annual Rent" is defined in Article 1.
"Force Majeure" means the inability to fulfill any obligations
under
this Lease or the inability to supply, or to be delayed in
supplying, any
service expressly or impliedly to be supplied or the inability
to make, or to be
delayed in making any repair, additions, alterations or
decorations or the
inability to supply, or to be delayed in supplying, any
equipment or fixtures if
prevented or delayed from so doing by reason of strike or labor
troubles or any
cause whatsoever beyond Landlord's reasonable control other than
lack of funds,
including, but not limited to government preemption in
connection with a
National Emergency 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 of supply and demand which have been or are affected
by war, civil
disturbance or other emergency, expressly excluding, in all
cases, lack of
funds.
"Initial Premises" means (a) the full floors of the portion of
the
Leased Premises located on floors 4, 6, 7 and 8 of the Building
(if possession
of the 5th floor is not delivered at the same time as such
floors), or (b) the
full floors of the Leased Premises located on floors 4, 5, 6, 7
and 8 of the
Building.
"Landlord's Agent" means George Comfort & Sons, Inc.
"Landlord's Contribution" means $3,077,800.00, subject to
Article 42.
(27)
<PAGE>
"Landlord Delay" means actual delay to Tenant occurring after
the
Commencement Date or the Extra Floor Commencement Date, as the
case may be, (i)
in commencing, performing and/or completing Tenant's Initial
Changes to the
Initial Premises and/or the Extra Floor and (ii) in taking
possession of the
Initial Premises and/or the Extra Floor for the ordinary conduct
of its business
(provided that Tenant is not using the Initial Premises or the
Extra Floor, as
the case may be, for any purpose other than performing Tenant
Changes), as to
which Tenant has given Landlord prompt notice, and which delay
is due solely to
either of the following:
(a) failure of Landlord to Substantially Complete the
Post-Commencement Work on or before the respective dates set
forth on Exhibit C
other than because of a Tenant Delay or Force Majeure (to the
extent such Force
Majeure delay does not exceed 90 days in the aggregate), except
if as a result
of the failure described in this clause (a) such failure shall
only actually
delay Tenant in taking possession of the Initial Premises and/or
the Extra
Floor, as the case maybe, for the ordinary conduct of its
business and Tenant is
not using the Initial Premises or the Extra Floor for any
purpose other than
performing Tenant's Changes, such failure shall be considered a
Landlord Delay;
and
(b) three (3) Business Days after Landlord has notice of the
existence
of asbestos in the Office Premises which Landlord is obligated
to remove under
Article 41J
"Latest Rent Commencement Date" means the First Rent
Commencement Date
or if later, the Extra Floor Rent Commencement Date.
"Leased Premises" means (1) all of floors 4, 5, 6, 7 and 8 of
the
Building shown on Exhibit A, other than the cross-hatched
sections (except that
during any period that the Extra Floor has not yet been
delivered, the Leased
Premises shall not include floor 5) and (2) the Basement
Premises. For avoidance
of doubt, the Leased Premises do not include the following
areas, if and to the
extent cross-hatched on Exhibit A: those elevators, fire
stairways, telecom
closets, equipment rooms and certain other enclosed areas
reserved by Landlord
for electrical, plumbing, telecommunications, or utilities
services, or for
other systems, services, or structural components serving the
Building.
"Legal Requirements" is defined in Article 50.
"New Tenant Rights" shall mean the extension or renewal rights
of any
tenant with respect to ROFO Premises that such tenant leases
pursuant to Article
60I and 60J hereof.
"Office Premises" means the Leased Premises other than the
Basement
Premises.
"Permitted Conduits" is defined on Exhibit C-1.
(28)
<PAGE>
"Permitted Uses" means, as to the Office Premises, general,
executive
and administrative offices, showrooms, sample making and design
rooms of Tenant
subject to all Legal Requirements, and as to the Basement
Premises, means
storage only of Tenant's personal property.
"Portion" means any one or more full floors of the Initial
Premises.
"Property" means the Building and the land (the "Land") on which
the
Building is situated (also known as Block 993, Lot 22).
"Rent" is defined in Article 1.
"Rent Commencement Date" means the First Rent Commencement Date,
the
Extra Floor Rent Commencement Date (if any) or the Basement Rent
Commencement
Date.
"Restoration Condition" means (A) as to the common areas of
the
Building, that such areas have been restored to the
substantially similar or
comparable condition they were in immediately prior to the
casualty; (B) as to
the Leased Premises, that the Leased Premises are in
substantially the same
condition they were required to be in upon Substantial
Completion of all
Landlord's Work.
"Rent Year" is defined on Schedule 1.
"Security Deposit" is initially $2,000,000, as more particularly
set
forth in Article 59.
"Substantially Complete" or "Substantial Completion" is defined
in
Article 41G.
"Surrender Agreement" means the Surrender Agreement among
Landlord, Hampshire Designers Inc., and Tenant, dated the date
hereof with
respect to the existing lease dated April 4, 1996 between ERV
Trust, DRH Trust,
Estate of Sybil B. Brown, as Owner, and Hampshire Designers
Inc., as Tenant,
relating to the 21st and 22nd floors of the Building (such lease
as amended,
modified and extended from time to time, the "Existing
Lease"),
"Tenant Delay" means actual delay (as to which Landlord has
given
Tenant prompt notice) affecting Landlord's Work resulting in a
delay in a
Commencement Date or a Rent Commencement Date, due to (i)
Landlord's performance
of any work which Landlord is not required to perform under this
Lease, and
which work was requested by Tenant; (ii) the failure of Tenant
to submit, within
the time periods set forth on Exhibit C-1, any plans and/or
specifications
(including supplying information, approving plans,
specifications or estimates,
giving authorizations) if and to the extent required under Items
A3 or D2 of
Exhibit C-1 or Tenant's failure to cooperate to agree on a
pathway as specified
in item C2 on Exhibit C-1; or (iii) caused in whole or in part
by default on the
part of Tenant.
(29)
<PAGE>
"Tenant Parties" is defined in Article 8B.
"Tenant's Broker" means CB Richard Ellis, Inc.
"Tenant's Percentage" means 22.562%; or (prior to delivery of
the 5th
floor) 18.050%.
"Term" is defined in Article 1A.
38. Real Estate Tax Escalation Payments.
A. For each Tax Year (hereinafter defined) during the Term,
Tenant shall pay, as Additional Rent, the Tax Payment
(hereinafter defined) for
such Tax Year.
B. Tax Definitions.
(i) The term "Real Estate Taxes" shall mean the sum of (a)
the real estate taxes and assessments, business improvement
district taxes,
charges and assessments, and special assessments, vault taxes,
government
levies, municipal taxes, county taxes and any governmental
charge, ordinary or
extraordinary, unforeseen as well as foreseen, of any kind or
nature whatsoever,
levied, assessed or imposed upon the Property, and on any rights
or interests
appurtenant thereto, payable by Landlord for any Tax Year and
(b) reasonable
costs and attorneys' and experts' fees and court or other
administrative costs
and disbursements incurred by Landlord, or any of its agents or
contractors, in
connection with tax certiorari proceedings instituted and
negotiations prior to
instituting formal proceedings, for the purposes of reducing any
Real Estate
Taxes. If, at any time during the Term, the methods of taxation
prevailing as of
the date of this Lease shall be altered so that, in lieu of, or
as an addition
to, or as a substitute for, the whole or any part of the real
estate taxes,
assessments, levies, impositions or charges now levied, assessed
or imposed,
there shall be levied, assessed or imposed a tax, assessment,
levy, imposition
or charge wholly or partially as a capital levy, or on the
rents, licenses or
other charges received with respect to the Property, then all
such taxes,
assessments, levies, impositions or charges payable shall be
deemed to be
included within the term "Real Estate Taxes" for the purposes
hereof. A true and
correct copy of the applicable tax bill of The City of New York
or other taxing
authority imposing Real Estate Taxes on the Property shall be
evidence of the
amount of Real Estate Taxes and shall accompany any Tax
Statement or demand by
Landlord for any Tax Payment. Notwithstanding the fact that the
aforesaid
Additional Rent is measured by Real Estate Taxes, such amount is
Additional Rent
and shall be paid by Tenant as provided herein regardless of the
fact that
Tenant may be exempt, in whole or in part, from the payment of
any Real Estate
Taxes for any reason whatsoever.
(ii) Notwithstanding anything to the contrary contained
herein but subject to the provisions of the second sentence of
subparagraph 2(a)
above, the term "Real Estate Taxes" shall exclude (a) net
income, gross
receipts, franchise, "value added" or similar taxes; gains,
transfer,
succession, gift, excise, profit,
(30)
<PAGE>
unincorporated business or any capital stock tax; special
assessments expressly
levied against another tenant or occupant in the Building due to
improvements
made by such other tenant or occupant; and inheritance tax or
estate tax imposed
or constituting a lien upon Landlord or all or any part of the
Land or Building,
and (b) fines for violations of law, and penalties and interest
for the late
payment of Real Estate Taxes to the extent that Tenant has duly
and timely made
all Tax Payments.
(iii) The term "Base Tax Year" shall mean the period
commencing July 1, 2008 and ending June 30, 2009.
(iv) The term "Tax Year" shall mean each twelve (12) month
fiscal period commencing on July 1 and ending on June 30 of the
following year,
any portion of which fiscal period occurs during the Term.
(v) "Tax Payment" means (a) the amount by which the Real
Estate Taxes payable for a Tax Year exceed the Real Estate Taxes
payable for the
Base Tax Year, multiplied by (b) Tenant's Percentage.
C. Tax Payments.
With respect to each Tax Year after the Base Year occurring
in whole or in part during the Term, Tenant shall pay to
Landlord the Tax
Payment in the manner hereinafter described. At any time after
the date which is
thirty (30) days prior to the commencement of each Tax Year
after the Base Year,
Landlord may furnish to Tenant a written statement (a "Tax
Statement") setting
forth the amount of Real Estate Taxes for such Tax Year, the
amount of Real
Estate Taxes for the Base Tax Year, Tenant's Percentage and the
amount of the
Tax Payment (if any) for such Tax Year. Tenant shall pay the Tax
Payment for
each such Tax Year to Landlord as Additional Rent in two
installments within 20
days after receipt by Tenant of the Tax Statement; provided,
however, that
unless the Real Estate Taxes become payable in more frequent
installments, the
due dates of any such installment shall not be less than 180
days after the
prior such payment but in any event not less than 30 days prior
to the date
Landlord is obligated to pay the Real Estate Taxes without
interest or penalty.
D. Landlord shall timely seek to reduce the assessed valuation
of
the Property on an annual basis (and only Landlord shall be
entitled to
institute tax reduction or other proceedings to reduce the
assessed valuation of
the Property, the Land or the Building). Should Landlord be
successful in any
such reduction proceedings and obtain a refund or reduction of
any Real Estate
Taxes for any Tax Year for which Tenant has paid the Tax
Payment, Landlord shall
credit against the Rent next coming due Tenant's Percentage of
such net refund
(to the extent of the Tax Payment paid by Tenant).
E. In the event that the assessed valuation which had been
utilized in computing the Real Estate Taxes payable for the Base
Tax Year is
reduced (as a result of settlement, final determination of legal
proceedings or
otherwise, but subject to the proviso at the end of this
subsection) then (i)
the Real Estate Taxes for
(31)
<PAGE>
the Base Tax Year shall be retroactively adjusted to reflect
such reduction,
(ii) all Tax Payments theretofore made by Tenant shall be
recalculated based on
the reduced amount of Real Estate Taxes for the Base Tax Year
and (iii) all
amounts due from Tenant to Landlord by reason of such
recalculation shall be
payable by Tenant to Landlord within ten (10) days after the
rendition of a
demand therefor; provided, however, and notwithstanding anything
to the contrary
in this Lease, in no event shall the calculation of Base Year
Taxes or Real
Estate Taxes for a Tax Year subsequent to the Base Tax Year for
purposes of
calculating the Tax Payment hereunder reflect any temporary or
permanent
reduction in the assessed valuation for the Property, or
otherwise in the Base
Year Taxes or Real Estate Taxes for a Tax Year subsequent to the
Base Tax Year,
which reduction is due to a tax abatement program (regardless of
whether such
abatement has actually caused a reduction in the assessed
valuation and/or the
Base Year Taxes or Real Estate Taxes for a Tax Year subsequent
to the Base Tax
Year).
F. Except as otherwise expressly provided hereby and subject
to
Tenant's rights hereunder to dispute the correctness of any
statement, bill or
demand furnished by Landlord with respect to any item of
Additional Rent
provided for in this Article 38, Tenant's obligation to make any
payment
provided for in this Article 38 shall be absolute and not
conditioned on the
happening of any act, thing or occurrence, including without
limitation the time
or timeliness at or with which such statement, bill or demand is
furnished to or
made upon Tenant. Except as expressly provided herein,
Landlord's failure during
the Term to prepare and deliver any statements or bills required
to be delivered
to Tenant hereunder, or Landlord's failure to make a demand
under this Article
38, shall not in any way be deemed to be a waiver of, or cause
Landlord to
forfeit or surrender its rights to collect, any Additional Rent
which may have
become due pursuant to this Article 38 during the Term, Tenant's
liability for
the Additional Rent due under this Article 38 shall survive the
expiration or
sooner termination of this Lease provided however Landlord may
not furnish a
demand for a Tax Payment more than three (3) years after the end
of any
applicable Tax Year unless Landlord receives a revised or
subsequent bill from
the City of New York, in which event Landlord may furnish a
demand for a Tax
Payment for such revised or subsequent bill, but for no more
than one (1) year
after receipt of such revised or subsequent bill.
G. Except as otherwise expressly provided in this Lease, in
no
event shall any adjustment of any Tax Payment result in a
decrease of any Fixed
Annual Rent hereunder, it being agreed and understood that the
Tax Payment is an
obligation supplemental to Tenant's obligations to pay Fixed
Annual Rent.
H. If a Tax Year shall end after the expiration or termination
of
the Term, the Additional Rent payable by Tenant in respect
thereof shall be
prorated on a per diem basis to correspond to that portion of
such year
occurring within the Term.
I. Each Tax Statement shall be conclusive and binding upon
Tenant
unless (i) on or before the date which is sixty (60) days (time
being of the
essence) after the delivery by Landlord to Tenant of such Tax
Statement, Tenant
shall
(32)
<PAGE>
notify Landlord that Tenant disputes the correctness thereof,
specifying (to the
extent commercially reasonable) the particular respects in which
Tenant believes
such statement may be incorrect. Pending the determination of
such dispute,
Tenant shall pay any disputed portion of the relevant Tax
Payment to Landlord
(as and when otherwise payable to Landlord under this Article)
and Tenant shall
pay any undisputed portion of the relevant Tax Payment in
accordance with the
applicable Tax Statement, invoice or bill (and Landlord shall
promptly refund or
credit against the Rent next coming due, any overpayment by
Tenant following the
determination of such dispute).
J. Tenant shall pay to Landlord upon demand, as Additional
Rent,
any occupancy tax or rent tax now in effect or hereafter
enacted, which Landlord
is now or hereafter required to pay with respect to the Rent
payable hereunder.
39. Electric Current.
A. Landlord agrees to furnish or have available six (6) watts
of
electric current per rentable square foot (demand load)
terminating at a
disconnect switch or switches provided by Landlord for Tenant's
use (including
any and all supplemental air conditioning equipment installed by
or for Tenant,
its subtenants or occupants of the Office Premises) on each
floor of the Office
Premises (but no more than 2 disconnect switches per floor)
throughout the Term
(in addition to the electric current consumed by the base
building air
conditioning machinery serving the Office Premises), upon and
subject to the
terms and conditions set forth in this Article 39; it being
acknowledged by the
parties that Tenant will obtain electric current initially to
the Office
Premises either directly from the Electric Company or on a
submetered basis and
to the Basement Premises on a rent-inclusion basis. Tenant is to
be responsible
for the distribution of such electricity from such disconnect
switches
throughout the Office Premises. From and after the First
Commencement Date,
Tenant shall purchase all electric current consumed in the
Leased Premises
(including, without limitation, such electric energy as is
consumed in
connection with the operation of the ventilation and air
conditioning equipment
servicing the Leased Premises) from Landlord or Landlord's
designated agent or
the Electric Company (as hereinafter defined), at Landlord's
option, from time
to time. Except for the Basement Premises for which Tenant will
pay Landlord the
Electric Charge (as hereinafter defined), and/or at such time as
Tenant is a
direct customer of the Electric Company, in consideration
thereof, Tenant will
pay to Landlord as additional rent a sum equal to (i)
"Landlord's Cost Rate" (as
that term is hereinafter defined) plus 3%, for the relevant
billing period
multiplied by (ii) the total kilowatt hours recorded on Tenant's
submeter or
submeters during such billing period if supplied on a submetered
basis, or
directly to the Electric Company, as the case may be.
"Landlord's Cost Rate"
shall mean the average rate per kilowatt hour at which Landlord
purchases
electricity for the entire Building from the utility company
providing electric
service to the Building (the "Electric Company") for the
relevant billing
period, including without limitation, all fuel adjustments,
surcharges and
taxes. Tenant's consumption of electrical energy at the Leased
Premises will be
measured by (a) existing meters or meters to be installed by the
Electric
Company or (b) existing submeters installed or at Landlord's
expense to be
installed by Landlord. Except as
(33)
<PAGE>
provided in paragraphs E and J of this Article, throughout the
Term Landlord
shall maintain all such submeters (but not direct Electric
Company meters) in
good order and condition at its sole cost and expense except for
the negligence,
willful misconduct or misuse of a Tenant Party in which event it
shall be at
Tenant's cost and expense.
B. During any time that electric service is supplied on a
submetered basis, where more than one submeter measures Tenant's
electric
service (including such electric energy as is consumed by the
ventilation and
air conditioning equipment servicing only the Leased Premises),
the service
rendered through each submeter (including, without limitation,
if and when
installed pursuant to Article 39G(ii), the submeter measuring
electric
consumption in the Basement Premises) shall be aggregated and
billed to Tenant
in accordance with the provisions hereof. Bills therefor may be
rendered monthly
and shall be payable within thirty (30) days, as additional
rent. Each bill
shall include such backup materials as shall reasonably evidence
the calculation
of the amount charged, including copies of meter readings and
statements from
the Electric Company detailing Landlord's Cost Rates.
C. Tenant covenants that at no time shall the use of
electrical
energy in the Leased Premises exceed 6 watts per rentable square
foot, demand
load, plus the capacity required by the base building air
conditioning equipment
(the "Electrical Capacity") from the existing conductors,
risers, equipment
servicing the Building, feeders or wiring installations then
serving the Leased
Premises and the Building or overload such installations or
interfere with the
use thereof by other tenants of the Building. In furtherance of
the foregoing
and to avert any possible adverse effect upon the Property's
electrical system,
Tenant shall not, without the prior written consent of Landlord,
make or
perform, or permit the making or performing of, any alteration
to connections,
capacity risers, switches, wiring installations or other
electrical facilities
in or serving the Leased Premises or the Property. If Tenant
requires additional
electrical capacity in addition to the Electrical Capacity, and
gives notice
thereof to the Landlord, then Landlord may, subject to this
Paragraph C and to
Landlord's approval, not to be unreasonably withheld, elect to
provide, or
permit the installation of, additional capacity at Tenant's sole
cost and
expense (which expense shall have been approved in advance by
Tenant and shall
include the cost to bring any such additional power to the
Leased Premises from
the electrical vault in the Building's basement), provided such
additional
capacity shall be permitted by all Legal Requirements and shall
not have an
adverse effect upon the Property's electrical system or the
availability of
adequate electrical capacity for the other occupants thereof or
common areas of
the Building. Supplementing the foregoing, but subject to the
immediately
preceding sentence, if the electrical power available to service
the Office
Premises is at any time insufficient to meet Tenant's needs, and
Tenant shall
give notice thereof to Landlord, then Landlord (if commercially
reasonable), to
the extent then commercially available, shall at Tenant's cost
and expense (if
such expense shall have been approved in advance by Tenant) file
a request with
the Electric Company for such additional electrical power as
Tenant shall
request, and, to the extent made available by the Electric
Company, Landlord
shall make such additional electrical power available to service
the Office
Premises. Tenant
(34)
<PAGE>
shall bear all expense of bringing any such additional power to
the Property or
any part thereof and otherwise to the Office Premises.
D. Landlord shall not in any way be liable or responsible to
Tenant for any loss, damage or expense which Tenant may sustain
or incur if
either the quantity or character of electric service is changed
or is no longer
available or suitable for Tenant's requirements, except to the
extent resulting
from Landlord's negligence, willful misconduct, or if electric
service is
provided on a rent inclusion or submetered basis, failure to pay
the Electric
Company (but, in no event, will Landlord have any responsibility
for
consequential damages). Any riser or risers necessary to supply
Tenant's
electrical requirements in excess of those specified in
Paragraph A will be
installed by Landlord at the sole reasonable cost and expense of
Tenant (as
approved in advance by Tenant) and only if, in Landlord's
reasonable judgment,
the same is reasonably practicable and will not cause adverse
damage or injury
to the Building or the operation thereof or the Leased Premises,
or cause or
create a dangerous or hazardous condition. In addition to the
installation of
such riser or risers, Landlord will also, at the sole reasonable
cost and
expense of Tenant (as approved in advance by Tenant), install
all other
equipment proper and necessary in connection therewith, subject
to the aforesaid
terms and conditions. In each instance in this Paragraph D where
Tenant has the
right to approve an expense, Landlord shall have no obligations
until the
approval of Tenant is so delivered to Landlord. All of such
costs and expenses
shall be paid by Tenant to Landlord within twenty (20) days
after rendition of
any bill or statement to Tenant therefor, as additional
rent.
E. In the event that electric service is provided on a
submetered
or rent inclusion basis and provided Landlord does not
discriminate against
Tenant, Landlord may discontinue such service of electric
current upon ninety
(90) days (or such lesser time as may be required by Legal
Requirements or the
Electric Company) to Tenant without being liable to Tenant
therefor and without
in any way affecting this Lease or the liability of Tenant
hereunder or causing
a diminution of Fixed Annual Rent except to the extent the Fixed
Annual Rent was
increased in consideration of Landlord furnishing electric
current. Such
discontinuance is not to be deemed to be a lessening or
diminution of service
within the meaning of any law, rule or regulation now or
hereafter enacted,
promulgated or issued. If Landlord so discontinues furnishing
electric current
to Tenant, Tenant shall arrange to obtain electric current
directly from the
Electric Company. Such electric current may be furnished to
Tenant by means of
the then existing building system feeders, risers and wiring to
the extent that
the same are available, suitable and safe for such purposes. If
Landlord elects
to discontinue furnishing electric current to Tenant, all meters
and additional
panel boards, feeders, risers, wiring and other conductors and
equipment that
may be required to obtain and to measure Tenant's consumption of
electric
current directly from the Electric Company shall be installed
and maintained by
the Electric Company. Provided Tenant proceeds promptly and
diligently after
receipt of Landlord's notice to arrange to obtain and to measure
Tenant's
consumption of electric current directly from the Electric
Company, Landlord may
not discontinue electric service until Tenant is able to obtain
service
(35)
<PAGE>
directly from the Electric Company (unless Landlord is compelled
to do so by
Legal Requirement or the Electric Company).
F. Anything in Paragraph A to the contrary notwithstanding,
if
during any time during the Term (the "Relevant Period") that
electric service is
provided on a submetered basis and submeters have not yet been
installed or it
is determined that the submeters servicing any portion of the
Office Premises
(an "Affected Area") are or were not properly calibrated or were
malfunctioning,
Tenant shall pay Landlord for electricity for the Affected Area
for each day of
any Relevant Period (i) prior to the substantial completion of
Tenant's Initial
Changes at the rate of $1.00 per annum per rentable square foot
of the Affected
Area, and (ii) from and after the substantial completion of
Tenant's Initial
Changes at the rate of $2.25 per annum per rentable square foot
of the Affected
Area.
G. (i) Landlord shall make available electrical energy to
the
Basement Premises, for lighting only, on a rent-inclusion basis
through existing
receptacles (or any similar receptacles that may be reasonably
designated by
Landlord) in a reasonable manner, and Tenant shall pay to
Landlord $1,000.00 per
annum as additional Fixed Annual Rent (the "Electric Charge") in
respect thereof
for normal storage use of electricity for lighting in the
Basement Premises. The
parties acknowledge that the Electric Charge is included in the
Fixed Annual
Rent for the Basement Premises as set forth in Article 1C(ii)
and is subject to
decrease in accordance with Article 1C if the area of the
Basement Premises is
less than 1,000 square feet.
(ii) If at any time, Landlord desires to submeter Tenant's
use of electricity in the Basement Premises in lieu of providing
electricity on
a rent inclusion basis set forth above (or if at any time
Landlord is prohibited
by Legal Requirements from providing electricity on a rent
inclusion basis),
then Landlord, at its sole cost and expense, may install (and
except for the
wrongful acts or omissions of Tenant or a Tenant Party maintain)
a meter and/or
a submeter to measure the cost of Tenant's electricity, and from
and after the
installation of such meter or submeter, the Electric Charge
shall be deducted
from the Fixed Annual Rental for the Basement Premises, and
Tenant shall
thereafter pay monthly to Landlord for electricity attributable
to the Basement
Premises, as Additional Rent within ten (10) days after
rendition of bills, a
sum equal to (a) "Landlord's Cost Rate" plus 3%, for the
relevant billing
period, multiplied by (b) the total kilowatt hours recorded on
Tenant's submeter
or submeters for the Basement Premises during such billing
period.
H. If any tax (other than income tax) is imposed upon
Landlord's
receipts from the sale or resale of electrical energy to Tenant
by any federal,
state, city or local authority, the share of such tax allocable
to the
electrical energy service attributable to Tenant shall be passed
on to and paid
by Tenant as Additional Rent if and to the extent permitted by
law. Landlord
agrees to permit Tenant to use the existing feeders, risers,
wiring and other
electrical facilities serving the Leased Premises, for the
purpose of receiving
electrical energy, to the extent they are available,
(36)
<PAGE>
suitable and safely capable without damage or injury to the
Building or the
operation thereof or cause or create a hazardous or dangerous
condition.
I. If either the quantity or character of electrical service
is
changed by the Electric Company then supplying electrical
service to the
Property or any part thereof, or is no longer available or
suitable for Tenant's
requirements, then no such change, unavailability or
unsuitability shall
constitute an actual or constructive eviction, in whole or in
part, or entitle
Tenant to any abatement or diminution of rent, or relieve Tenant
from any of its
obligations under this Lease, or impose any liability upon
Landlord or
Landlord's agent for any loss, damage or expense which Tenant
may sustain or
incur except if the unavailability of electricity is caused
solely by the
wrongful acts or omissions of Landlord.
J. If Landlord is prohibited by Legal Requirements from
providing
electricity on a rent inclusion basis and on a submetered basis,
Landlord may
discontinue the furnishing of electrical energy to the Leased
Premises, provided
that the applicable charges shall also be discontinued when
Landlord
discontinues furnishing electricity to the Leased Premises. In
the event of any
such prohibition by Legal Requirements, (i) Landlord agrees to
give not less
than 90 days advance notice of any such discontinuance to Tenant
unless such
notice is not feasible under the circumstances, in which event
Landlord will
give Tenant such reasonable advance notice as is possible
(except that if Tenant
shall be unable, after reasonable and diligent efforts, to
obtain electric
service from the Electric Company within said notice period,
Landlord shall use
reasonable efforts to continue to furnish electricity to Tenant
with respect to
the Leased Premises until such time as Tenant shall obtain
electrical service
directly from the Electric Company, provided that Tenant shall
have used, and at
all times shall continue to use, reasonable and diligent efforts
to obtain such
alternative electrical service), (ii) Landlord agrees, at
Tenant's sole cost and
expense, (a) to install any necessary electrical meter equipment
and (b) to
perform any necessary rewiring, and (iii) this Lease shall
remain in full force
and effect and such discontinuance shall not constitute an
actual or
constructive eviction, in whole or in part, or entitle Tenant to
any abatement
or diminution of rent except as expressly provided in this
Subsection, or
relieve Tenant from any of its obligations under this Lease, or
impose any
liability upon Landlord.
K. If Landlord elects to sell to Tenant bulbs, lamps
(including
incandescent and fluorescent), starters and ballasts used in the
Leased
Premises, then Tenant shall pay to Landlord Landlord's
reasonable customary
charge for the cost of providing and installing the same.
L. Landlord's failure during the Term to prepare and deliver
any
statements or bills under this Article 39 or Landlord's failure
to make a demand
under this Article 39 or any other provisions of this Lease,
shall not in any
way be deemed to be a waiver of, or cause Landlord to forfeit or
surrender its
rights to collect, any amount which may have become due pursuant
to this Article
39 during the Term, provided, however, unless Landlord receives
a revised or
retroactive bill from the Electric
(37)
<PAGE>
Company, Landlord may not send a bill or statement under this
Article 39 later
than three (3) years after the date such bill or statement would
have been due
and payable by Tenant had such bill or statement been rendered
timely or (if
later) one year after receipt of a revised or retroactive bill.
Except as set
forth in the immediately preceding sentence or as otherwise
expressly provided
herein, Tenant's liability for any amounts due under this
Article 39 shall
continue unabated during the remainder of the Term and shall
survive the
expiration or sooner termination of this Lease.
M. Landlord shall have the right at any time and from time
to
time during the Term (at Landlord's sole cost and expense) to
require tenant to
contract for electricity service with an alternative electrical
service provider
("ASP") or ASPs designated by Landlord so long as each such ASP
shall then be
providing electrical service to similar office buildings in New
York City and
the then charge to Tenant is not greater than that then being
paid by Tenant to
Tenant's existing electrical energy provider and the character
and quality of
the service is in all respects at least equal as that provided
by the public
utility. In any such event the ASP shall be deemed the Electric
Company but all
other terms and conditions of this Lease shall remain
unchanged.
40. End of Term; Holding Over.
A. Upon the expiration or other termination of the Term,
Tenant
shall quit and surrender to Landlord the Leased Premises,
"broom-clean," in good
order and condition, ordinary wear and tear and damage by
insured casualty or
which Tenant is not required to repair as provided elsewhere in
this Lease
excepted, and Tenant shall remove all its property and any
Specialty Alterations
which Tenant is required to remove. Should Tenant remain in
possession of the
Leased Premises after the Expiration Date or sooner termination
of the Term,
then, in addition to any of the rights of Landlord set forth
below in this
Article 40, Tenant shall pay to Landlord, as use and occupancy
for each month or
portion of a month during which Tenant holds over in the Leased
Premises after
the Expiration Date or sooner termination of this Lease, a sum
equal to (i) for
the first 60 days of such holdover, 150% of the aggregate of the
annual Fixed
Annual Rent and Tax Payment which were payable under this Lease
during the last
twelve (12) months of the Term, divided by 12, prorated on a per
diem basis; and
(2) from and after the 61st day of such holdover, 200% of the
aggregate of that
portion of the Fixed Annual Rent and Tax Payment whi
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