1
EXHIBIT 10(k)(i)
FIRST AMENDMENT:
LEASE EXTENSION AND MODIFICATION AGREEMENT
AGREEMENT, made as of the first day of January 1998, by and between
LECHAR REALTY CORP., a New York corporation, with its principal office address
at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, hereinafter referred to as "Owner";
and LIZ CLAIBORNE INC., a Delaware corporation, qualified to do business in the
State of New York, with its principal office and showroom address at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, hereinafter referred to as "Tenant".
W I T N E S S E T H
WHEREAS, Owner and Tenant are parties to a written Agreement of Lease,
dated as of the 1st day of January 1990, hereinafter referred to as the
"Original Lease", as amended by letter agreement dated August 4, 1994, such
letter and the Original Lease are hereinafter collectively referred to as the
"Lease", for a portion(s) of the building at 0000 Xxxxxxxx, a/k/a 000 Xxxxxxx
Xxxxxx, Xxx Xxxx Xxxx, Xxx Xxxx, hereinafter referred to as the "Building"
(except as may be otherwise expressly specified in this document, all
definitions in the Lease remain in effect in this Agreement); and
WHEREAS, Tenant and Owner have agreed to modify the Lease upon the
terms and conditions hereinafter set forth (hereinafter referred to as this
"First Amendment"):
NOW, THEREFORE, in consideration of TEN ($10.00) DOLLARS in hand paid
to the other, and for other and further valuable consideration, including the
mutual covenants hereinafter set forth, Owner and Tenant agree as follows:
2
1. The Lease is amended and modified as follows:
A. ARTICLE 1 OF THE ORIGINAL LEASE, DEMISE AND RENT:
Exhibit A-1 attached hereto sets forth the Demised Premises
as of January 1, 1998.
9TH-13TH LINES: "for a term (the "Term") of twelve (12) years
... to commence on the 1st day of January nineteen hundred
and ninety, and to end on the 31st day of December two
thousand and one, both dates inclusive," is changed to:
"for a term (the "Term") of twenty-three (23) years,
commencing January 1, 1990, and expiring December 31, 2012,
both dates inclusive,".
13TH LINE: Exhibit B to the Original Lease, setting forth the
Fixed Annual Rent, is amended by modifying and changing the
1/1/99-12/31/01 rental amounts to now read:
"Period Fixed Annual Rent
------- ------------------
1/1/99-10/31/99 At a rate of $44.95 per rentable square foot per 12-month
period
11/1/99-12/31/12 At a rate of $35.00 per rentable square foot per 12-month
period"
Paragraph 2 of the letter agreement dated August 4, 1994,
between the parties hereto is modified so that from and after
November 1, 1999, the 9,006 rentable square feet of mezzanine
area in the Building referred to therein is leased to Tenant
at the same base rent as Tenant's other leased space in the
Building.
2
3
B. ARTICLE 36 OF THE ORIGINAL LEASE, TAXES:
PAGE 43 (TOP), ARTICLE 36(A)(ii): The following is added after the
words "...if any.": ", through December 31, 1998. Effective January
1, 1999, 'Base Taxes' shall mean the sum of fifty (50%) percent of
the Taxes payable during the Tax Year commencing on July 1, 1997 and
fifty (50%) percent of the Taxes payable during the Tax Year
commencing on July 1, 1998, in each instance including the
(Protected Amount, if any."
PAGE 44, ARTICLE 36(A)(x), 2ND LINE: "sewer rents and governmental
charges of any nature (to the extent not charged to Tenant pursuant
to another Article hereof)" is deleted, and the following is added to
Article 36 (A) (x), second line: "and business improvement district
taxes."
THE FOLLOWING IS ADDED TO ARTICLE 36 OF THE ORIGINAL LEASE: "(E)
Tenant shall continue to pay to Owner, through December 31, 1998, as
additional rent, within ten (10) days after Tenant's receipt of an
invoice therefor, Tenant's Proportionate Tax Share of business
improvement district taxes assessed against the Building Project."
C. ARTICLE 37 OF THE ORIGINAL LEASE, PORTERS WAGE AND CPI:
The title of this Article is amended to: "PORTERS WAGE AND CPI;
OPERATING EXPENSE ESCALATION"
ARTICLE 37(D)(i), PAGE 49, 2ND LINE: after "... during the Term,":
the following is added, "through October 31, 1999,".
ARTICLE 37(D)(i), PAGE 50: The following is added: "The Prior Wage
Rate Increase Per Square Foot shall be equal to that applicable for
1998 in determining the Current Wage Rate Increase effective January
1, 1999, with
3
4
Tenant being liable to pay the same amount it owed for and in
respect of 1998 under this Article, without application of Article
37 (D) (ii) below. No additional rent shall be payable in respect of
the period after October 1, 1999, based on changes in the Wage
Rate."
THE FOLLOWING IS ADDED TO ARTICLE 37: "(H) OPERATING EXPENSE
ESCALATION Effective January 1, 2000, subparagraph (A)-(D) and (F),
above, are hereby replaced with this provision and Tenant shall
thereupon and thereafter pay to Owner as additional rent, an
operating expense escalation in lieu of the escalations heretofore
provided under this Article 37, in accordance with the following:
a. Definitions: For the purpose of this Article, the following
definitions shall apply:
(i) The term "Base Year" as hereinafter set forth for the
determination of operating expense escalation, shall mean the
calendar year 1998.
(ii) The term the "Percentage" for purposes of computing
operating expense escalation, shall mean Tenant's
Proportionate Share as defined in Article 36, above.
(iii) The term "the Building Project" shall mean the
aggregate combined parcel of the Land and the Building, with
all the improvements thereof and thereon.
(iv) The term "Comparative Year" shall mean the twelve (12)
months of the Year 2000, and each subsequent period of twelve
(12) months.
(v) Except as may hereinafter otherwise be expressly
specified, the term "Expenses" shall mean the total of all
the costs and expenses incurred or borne by Owner with
respect to the operation and maintenance of the Building
Project and the services provided tenants therein, including,
but not limited to, the costs and expenses incurred for and
with respect to: steam and any other fuel; water rates
4
5
and sewer rents (to the extent not included in Taxes);
mechanical ventilation and air-conditioning (only to the
extent Owner is providing same to the Demised Premises per
Article 27(C)(ii), only, and to public or common areas of the
Building); heating; cleaning, by contract or otherwise, for
non-tenant areas only; elevators; escalators; porters and
matron service; Building electric current (i.e., Building
electric current shall be deemed to mean all electricity
purchased for the common areas and common elements of the
Building as determined by survey, and shall exclude that
which is redistributed to tenants in the Building);
protection and security; lobby decoration; repairs and/or
replacements of non-capital items which are appropriate for
the continued operation of the Building as a first-class
building; maintenance; painting and repair of non-tenant
areas (including any public or common areas); fire, extended
coverage, boiler and machinery, sprinkler, apparatus, public
liability and property damage, rental and plate glass
insurance and any other insurance as may be reasonably (i.e.
as would be required by an institutional lender) required by
a mortgagee, with customary deductibles; management fees;
supplies; wages, salaries, disability benefits, pensions,
hospitalization, retirement plans and group insurance
respecting employees of the Building up to and including the
building manager; uniforms and working clothes for such
employees and the cleaning thereof, and expenses imposed
pursuant to law or to any collective bargaining agreement
with respect to such employees; worker's compensation
insurance, payroll, social security, unemployment and other
similar taxes with respect to such employees; and reasonable
association fees or dues (pertaining to maintenance, upkeep
and repairs and operation of the non-tenant areas of the
Building Project only); costs and fees for accounting,
5
6
bookkeeping, auditing, consulting, legal and other
professional services; and sales and use taxes levied upon
any Expenses.
Provided, however, that the foregoing costs and expenses
shall exclude or have deducted from them as the case may be
and as shall be appropriate:
(a) Leasing commissions;
(b) Managing agents' fees or commissions in excess of the
rates then customarily charged for building management for
buildings of like class and character;
(c) Executives' salaries above the grade of building manager;
(d) Expenditures for capital improvements except those which
under generally accepted accounting principles ("GAAP") are
expensed and except for capital expenditures required by law,
in either of which cases portions of the cost thereof shall
only be included in Expenses only to the extent that such
costs are amortized on a straight line basis over the useful
life of the capital improvement, as set by GAAP;
(e) Expenses reimbursed by insurance or other third-party
payors, to the extent the proceeds actually cover, pay for or
reimburse expenses which were previously or would be included
in Expenses hereunder;
(f) Cost of repairs or replacements incurred by reason of
fire or other casualty or caused by the exercise of the
rights of eminent domain;
(g) Advertising and promotional expenditures, pertaining to
leasing or the Building Project in general or otherwise;
(h) Legal fees for disputes with tenants and/or mortgagees,
and all other legal and auditing fees except legal and
auditing fees reasonably incurred in connection with the
maintenance and operation of the Building Project or in
connection with
6
7
the preparation of statements required pursuant to additional
rent or lease escalation provisions;
(i) The incremental cost of furnishing services such as
overtime HVAC to any tenant at such tenant's expense; costs
incurred in performing work or furnishing services for
individual tenants (including this Tenant) at such tenant's
expense.
(j) The cost of electricity and other utilities furnished to
space leased or held available for lease to any tenant;
(k) Water charges and sewer rents that are separately metered
or otherwise paid for by specific tenants or that are
included within the definition of Taxes;
(l) Work performed to prepare space for leasing or to improve
leased space;
(m) Principal, interest and other payments or expenditures
made under, pursuant to or in connection with any loan,
including, without limitation, any mortgage encumbering the
Building Project or any interest therein;
(n) The cost of correcting defects (latent or otherwise) in
the construction of the Building;
(o) That portion of charges for cleaning, security and
elevator, air conditioning or other maintenance provided to
the Building Project, which are in excess of reasonably
competitive rates or which relate to any space leased or
available for lease, it being understood that such charges
shall only be included to the extent that they relate to
common areas and common elements of the Building Project;
(p) Payments for rented equipment, the cost of which
equipment would constitute an excluded capital expenditure if
the equipment were purchased (if not
7
8
excluded by reason of clause (d) above, such payments shall
be treated as a purchase under clause (d), above;
(q) Depreciation and other non-cash expenses.
(r) Penalty interest, late charges, penalties and penalty
surcharges imposed with respect to any costs otherwise
included in Expenses;
(s) Judgments, settlements and/or court costs and litigation
costs for any actions, claims, proceedings or violations of
law, or with respect to the enforcement of any leases or
licenses in the Building;
(t) Rent and other payments or expenditures made under,
pursuant to or in connection with any ground or underlying
lease or leases or any interest therein;
(u) Owner's and lender's title insurance;
(v) Taxes;
(w) Any expenditure, for which Owner is being or is to be
paid, compensated or reimbursed by any particular tenant(s)
or other party. There shall not be included in Expenses and
Tenant shall not be subject to expenses incurred outside
common areas by Owner for another tenant;
(x) The portion of wages, salaries or other compensation paid
to any employees who do not perform services exclusively for
the Building that is allocable to their other activities;
(y) Owner's general and administrative expenses not relating
to operation of the Building Project;
(z) Consulting fees relating to any capital expenditures,
except as to cost savings permitted below;
(aa) Any connection charges imposed by any utility service
providers to the Building, except if viewed by GAAP as an
Expense item;
8
9
(bb) Any costs representing an amount paid to a party
affiliated with or related to Owner which is in excess of the
amount which would have been paid in the absence of such
relationship (i.e., it shall not exceed then existing
reasonable competitive rates or prices);
(cc) The cost of installing, operating and maintaining any
specialty service or facility such as an observatory,
broadcasting facility, luncheon club, retail store, sundry
shop, newsstand, rooftop or other sign, concession or
athletic or recreational club. However, the cost of operating
and maintaining any of the foregoing shall be an includable
Expense, only if they are common areas of the Building and
are available without charge(s) to all tenants.
(dd) Costs resulting from the negligence, willful misconduct
or wrongful acts of Owner or its, agents, employees,
contractors or other tenants.
(ee) The cost of window cleaning, except for windows in
common and public areas.
If Owner shall purchase any item of capital equipment or make
any capital expenditure designed to result in savings or
reductions in Expenses, then the cost(s) of same shall be
included in expenses only to the extent of the savings or
reductions in Expenses resulting therefrom. Such costs of
capital equipment or capital expenditures are so to be
included in Expenses for the Comparative Years, on a straight
line basis, only to the extent that such items are amortized
over such period of time as are prescribed by GAAP. If Owner
shall lease any such item of capital equipment designed to
result in savings or reductions in Expenses, then the rental
and other costs paid pursuant to such leasing shall be
included in Expenses
9
10
for the Comparative Year in which they were incurred to the
extent of the savings realized thereby.
If during all or part of the Base Year or any Comparative
Year, Owner shall not furnish any particular item(s) of work
or service (which would constitute an Expense hereunder) to
portions of the Building Project due to the fact that such
portions are not occupied or leased, or because such item of
work or service is not required or desired by the tenant of
such portion, or such tenant is itself obtaining and
providing such item of work or service, or for other reasons,
then, for the purposes of computing the additional rent
payable hereunder, the amount of the expenses for such item
for such period shall be increased by an amount equal to the
additional operating and maintenance expenses which would
reasonably have been incurred during such period by Owner if
it had at its own expense furnished such item of work or
services to such portion of the Building Project.
b. 1. Commencing January 1, 2000, and continuously thereafter
during the Term, if the Expenses for any Comparative Year
shall be greater than the Expenses for the Base Year, Tenant
shall pay to Landlord as additional rent for such Comparative
Year, in the manner hereinafter provided, an amount equal to
the Percentage of the excess of the Expenses for such
Comparative Year, over the Expenses for the Base Year (such
amount being hereinafter called the "Expense Payment").
Following the expiration of each Comparative Year, but not
later than six (6) months thereafter, and after receipt of
necessary information and computations from Owner's certified
public accountant, Owner shall submit to Tenant a
10
11
statement, as hereinafter described, setting forth the
Expenses for the preceding Comparative Year, the Expenses for
the Base Year, and the Expense Payment, if any, due to Owner
from Tenant for such Comparative Year. If such statement
shows an Expense Payment due from Tenant to Owner with
respect to the preceding Comparative Year then (i) Tenant
shall make payment of any unpaid portion thereof within ten
(10) days after receipt of such statement (if Tenant may have
overpaid, then Owner shall either refund the amount overpaid
within ten (10) days of such statement being delivered to
Tenant, or at Owner's option give Tenant a base rent credit
in such amount to be applied by Tenant in the next ensuing
month); and (ii) Tenant shall also pay to Owner, as
additional rent, within ten (10) days after receipt of such
statement, an amount equal to the product obtained by
multiplying the total Expense Payment for the preceding
Comparative Year by a fraction, the denominator of which
shall be 12 and the numerator of which shall be the number of
months of the current Comparative Year which shall have
elapsed prior to the first day of the month immediately
following the rendition of such statement; and (iii) Tenant
shall also pay to Owner, as additional rent, commencing as of
the first day of the month immediately following the
rendition of such statement and on the first day of each
month thereafter until a new statement is rendered, 1/12th of
one hundred and five (105%) percent of the total Expense
Payment for the preceding Comparative Year. The payments
required to be made under (ii) and (iii), above, shall be
credited toward the Expense Payment due from Tenant for the
then current Comparative Year, subject to adjustment as and
when the statement for such current Comparative Year is
rendered by Owner. With respect to the Year 2000, the month
after Owner shall have submitted to Tenant an Expense
Statement for 1998 and an Expense
11
12
Statement for 1999 and continuing the first day of each
consecutive month through December 2000, Tenant shall pay its
Proportionate Share of the increase in 1999 Expenses over the
1998 Expenses multiplied by 105% in equal monthly
installments (i.e., determined by dividing Tenant's
Proportionate Expense Share by twelve with Tenant paying for
the months through the statement delivery date within ten
(10) days, and then monthly thereafter); such payment shall
be .on account of the Expense Payment due for the Year 2000
with any adjustment determined in 2001 as aforestated; it
being agreed that there is no Expense Payment in respect of
the Year 1999.
2. The statements of the Expenses to be furnished by Owner as
provided above shall be certified by Owner or its managing
agent, and shall be prepared in reasonable detail in
accordance with GAAP. The statements thus furnished to Tenant
shall constitute a final determination as between Owner and
Tenant of the Expenses for the period represented thereby,
unless Tenant within two (2) years after they are furnished
shall give a notice to Owner that it disputes their accuracy
or their appropriateness, which notice shall specify the
particular respects in which the statement is claimed to be
inaccurate or inappropriate. Pending the resolution of any
dispute respecting such statements, in accordance with
Article 45, below, Tenant shall pay the additional rent due
under this Article to Owner in accordance with the statements
furnished by Owner. Upon resolution of any such dispute,
monetary adjustment(s) determined by the arbitrator(s) to be
appropriate shall be made by the parties hereto.
3. In no event shall the fixed annual rent under this Lease
be reduced by virtue of this Article.
12
13
4. Upon the date of any expiration or termination of this
Lease whether the same be the date hereinabove set forth for
the expiration of the Term or any prior or subsequent date, a
proportionate share of said additional rent for the
Comparative Year during which such expiration or earlier
termination occurs shall immediately become due and payable
by Tenant to Owner, if it was not theretofore already billed
and paid. The said proportionate share shall be based upon
the length of time that this Lease shall have been in
existence during such Comparative Year. Owner shall, as soon
as reasonably practicable, compute the additional rent due
under this Article from Tenant, as aforesaid, which
computations shall either be based on that Comparative Year's
actual figures or be an estimate based upon the most recent
statements theretofore prepared by Owner and furnished to
Tenant under subdivisions 1 and 2, above. If an estimate is
used, then Owner shall cause statements to be prepared on the
basis of the Comparative Year's actual figures promptly after
they are available, and thereupon, Owner and Tenant shall
make appropriate adjustments of any estimated payments
theretofore made.
5. Owner's and Tenant's obligations to make the adjustments
referred to in subdivision 4, above, shall survive any
expiration or termination of this Lease.
6. Any delay or failure of Owner in billing any escalation
hereinabove provided shall not constitute a waiver of or in
any way impair the continuing obligation of Tenant to pay any
escalation hereunder, provided a xxxx therefor is furnished
to Tenant within two (2) years after the expiration of the
period to which such xxxx or invoice applies."
13
14
D. ARTICLE 43 OF THE ORIGINAL LEASE, RENT ABATEMENT & CONSTRUCTION
ALLOWANCE: The title to this Article is changed to: TENANT
REIMBURSEMENTS.
SUBPARAGRAPHS (A) AND (B) ARE DELETED, AND REPLACED WITH:
"(A) Subject to Owner's set-off(s) of any and all rent and additional
rent Tenant may owe Owner through November 1, 1999, on November 1,
1999, Tenant shall be entitled to payment from Owner of (and Owner
hereby agrees to pay Tenant ) $4,142,910.00 and Tenant shall be
entitled to an abatement of all base rent and Article 37 escalation
payments due in respect of the period from November 1, 1999 to and
including December 31, 1999, only.
(B) On December 1, 2012, Owner shall pay to Tenant the sum of
$632,944.00, together with interest on said principal sum calculated
from January 1, 2000, to the date of payment at four (4%) percent per
annum based upon a 360-360 day year, hereinafter referred to as the
'Payment'. The Payment shall be secured by Owner's delivery to Tenant
by January 5, 2000 of a zero-coupon bond with a rating of A or if
available, AA, as set by Standard & Poor's, earning interest at 4% per
annum. Owner shall receive the return of the bond given as security
from Tenant in exchange for the Payment, unless said security has been
negotiated prior thereto or otherwise disposed of by Tenant, in which
event the Payment shall be deemed to have been made in full. Owner
shall pay to Tenant, subject to set-off(s) for any rent and additional
rent then owing to Owner, yearly on the third business day after each
New Year Day, commencing January 2001 until the Payment is made, four
(4%) percent per annum, based upon a 360-360 day year, on the
14
15
actual amount of the cost to Owner of the aforestated zero-coupon bond
(this is hereinafter referred to as the "Interest Payment")."
(C) With respect to any sum which may be due to Tenant as set forth in
subparagraph (A) or (B), above, in the event that Owner does not remit
a sum due to Tenant thereunder within ten (10) days of receipt of
written notice from Tenant that same is due, but has not been
received, and Owner failing to thereupon pay the sum so noticed and
due, then Tenant shall be entitled to set-off such sum(s) due, with an
interest factor at the Interest Rate (calculated from the due date of
the payment) against Tenant's ensuing rental obligations to Owner."
E. ARTICLE 41 OF THE ORIGINAL LEASE, ADDITIONAL SPACE: Exhibits C-1 and
C-2 are replaced with Exhibits "New C-1" and "New C-2" annexed hereto,
which shall be Automatic Option Space and Contingent Option Space as
of January 1, 1998.
ARTICLE 41 (A), PAGE 62 (TOP), 7TH-10TH LINES: " , at the per square
foot fixed rental rate then applicable as provided in Exhibit B,
appropriately prorated for any partial calendar year and subject to
the provisions of
ARTICLE 43 BELOW IS DELETED AND CHANGED TO READ: " , at a per square
foot fixed base rental rate of ninety-five (95%) percent of the then
fair market rental value for the particular Automatic Option Space (It
being understood that the rents set forth on Exhibit B hereto shall be
inapplicable and disregarded.)"
15
16
ARTICLE 41(B), PAGE 63, 19TH-22ND LINES: " , at the per square foot
fixed rental rate then applicable as herein specified appropriately
prorated for any partial calendar year and subject to the provisions
of
ARTICLE 43 BELOW IS CHANGED TO: " , at a per square foot fixed base
rental rate of ninety-five (95%) percent of the then fair market
rental value for the particular Contingent Option Space (It being
understood that the rents set forth on Exhibit B hereto shall be
inapplicable and disregarded.)"
ARTICLE 41(E), PAGE 65: is deleted.
ARTICLE 41(F) (LAST SENTENCE) IS CHANGED TO READ: "However, upon
expiration or earlier termination of the lease for such space
(following renewal periods, if any, if expressly set forth in such
lease), Tenant shall have the right again to lease such space as
though it were Automatic Option Space, unless such space is leased by
Segrets, Xxxxx Xxxxx, Xxxxx Xxxxx, Xxxxx Xxxx or Xxxx Xxxxxxx or
successors to the business thereof, in which event Tenant shall have
the right to lease such space as though it were Contingent Option
Space."
F. ALL REFERENCES TO FREIGHT ELEVATOR #9 IN THE LEASE ARE CHANGED TO
"#11".
G. ARTICLE 55 OF THE ORIGINAL LEASE, OWNER REPRESENTATION:
3RD LINE: "Lechar Realty Associates, a New York partnership", is
changed (has been converted) to: "Lechar Realty, L.L.C., a New York
limited liability company,".
16
17
H. ARTICLE 3 OF THE ORIGINAL LEASE, ALTERATIONS:
ARTICLE 3(F), PAGE 0, XXX 0XX XXXXXXXX: requiring Tenant at Owner's
request to remove internal bathrooms, is deleted.
IN THE 2ND SENTENCE OF SAID SUBPARAGRAPH: shall not be construed so
as to require Tenant to remove any internal bathrooms.
IN THE EXISTING 4TH SENTENCE: "two (2)" is deleted.
IN THE EXISTING 5TH SENTENCE: "three (3)" is changed to: "two (2)".
I. ARTICLE 4 OF THE ORIGINAL LEASE. REPAIRS AND MAINTENANCE:
ARTICLE 4(D), MIDDLE OF PAGE 7: "Elevator #9" is changed to "Elevator
#11."
THE NEXT TO LAST SENTENCE IS CHANGED TO READ: "Tenant, at its sole
cost and expense, may install wiring, panels and signal buttons in the
#11 elevator to enable it to stop at floors it occupies and uses
between floor 1 through 34. Such changes shall be subject to Owner's
prior written consent, not to be unreasonably withheld or delayed."
J. ARTICLE 9 OF THE ORIGINAL LEASE. DESTRUCTION, FIRE AND OTHER
CASUALTY:
17
18
ARTICLE 9(F), PAGE 14: is deleted and replaced with: "Waiver of
Subrogation. Not-withstanding anything else to the contrary in this
Lease, each party shall look first to any insurance in its favor
before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent
that such insurance is in force and collectible and to the extent
permitted by law, Owner and Tenant each hereby releases and waives all
right of recovery against the other or any one claiming through or
under each of them by way of subrogation or otherwise. Each party
shall provide for this waiver of subrogation in its insurance
policy(ies) it maintains pursuant to Article 40 (B), below. If either
party fails to carry the insurance required in Article 40 (B), below,
such party shall be deemed to release and waive all rights of recovery
against the other party against the other party or anyone claiming
through or under each of them to the extent of the deficiency in
insurance coverage."
ARTICLE 9(K), 2ND SENTENCE, PAGE 15: "under Article 3 hereof, ..."
is changed to: "under Article 4, above,...".
K. ARTICLE 12 OF THE ORIGINAL LEASE. ASSIGNMENT, SUBLETTING AND
MORTGAGE:
ARTICLE 12 (C), LAST 3 LINES, PAGE 19 (TOP): "...of managing partner
and sole decision-maker of Lechar Realty Associates, the beneficial
owner of the Real Property." Is changed to: "...of manager and sole
decision-maker of Lechar Realty, L.L.C., the beneficial owner of the
Real Property."
18
19
PARAGRAPH (H) IS HEREBY DELETED IN ITS ENTIRETY AND REPLACED WITH: "(H)
If seventy (70%) percent or more of the rentable square feet in the
Building above the ground floor not leased to Tenant is occupied by
tenants in the apparel industry for showrooms and design, Tenant will
not permit any subtenant of the Demised Premises or any assignee of
this Lease to occupy more than fifty (50%) percent of the Demised
Premises for purposes other than showrooms and design facilities.
Illustrative of the foregoing, if Tenant presently was subleasing all
of the Demised Premises or had assigned this Lease, if more than
106,975 rentable square feet in the Building were occupied by tenants
in the apparel industry for showrooms and design, then Tenant could
not permit its sublessee or assignee to occupy more than 138,097
rentable square feet of the Demised Premises for purposes other than
apparel-related showrooms and design facilities."
L. ARTICLE 18 OF THE ORIGINAL LEASE. FEES AND EXPENSES:
ARTICLE 18(B), AT THE END OF THE NEXT TO LAST SENTENCE, ON PAGE 28:
The following is added: ", at the Interest Rate."
M. ARTICLE 27 OF THE ORIGINAL LEASE. SERVICES PROVIDED BY OWNER:
ARTICLE 27(A), PAGES 31-33: All references to "No. 9" or "#9" are
changed to "No.11" or "#11" with the reference being the "#11
elevator."
ARTICLE 27(A), 8TH LINE, PAGE 32 (TOP): "...servicing floors 1 through
19." is changed to:
19
20
"...servicing floors 1 through 34."
ARTICLE 27(A): The following is added: "In the event that any of the
freight elevators are not in working order, other than due to a
party's negligence or willful act, then each party agrees to cooperate
during such time period until Tenant or Owner, as the case may be, can
reasonably meet its needs and demands concerning its freight elevator
service."
N. ARTICLE 46 OF THE ORIGINAL LEASE. RIGHT TO EXTEND:
THE 3RD SENTENCE FROM THE END, PAGE 71: "There shall be no further
right of extension beyond December 31, 2021." is changed to read:
"There shall be no further right of extension beyond December 31,
2032."
O. ARTICLE 42 OF THE ORIGINAL LEASE. REMEASUREMENT:
8TH SENTENCE: "448,701" is changed to: "454, 987." [This also applies
to any other Article wherein "448,701" may appear.]
P. ARTICLE 38 OF THE ORIGINAL LEASE, ELECTRICITY: From and after the
date hereof, Article 38 of the original lease shall be deemed to be
replaced with the following:
"38. ELECTRICITY.
(A) Effective from and after the date hereof, Tenant
shall obtain and Owner shall supply electricity for all of Tenant's
reasonable electrical needs (as referred
20
21
to in subparagraph E, below) in the Demised Premises on a surveyed
basis but Tenant shall have the right at its sole cost and expense at
anytime during the Term to: (i) obtain all or any part of its
electricity from Owner on a submetered basis on the terms and
conditions set forth in Article 38(C) below; and/or (ii) obtain all or
any part of its electricity in accordance with the terms and
conditions set forth in Article 38(D) below directly from any utility
company serving the Building (a "Utility Company"), in each instance
by means of the existing building systems, feeders, risers and wiring
and/or any additional equipment required therefor, it being understood
that the cost of installing any such additional equipment as well as
the cost of splitting or segregating power lines shall be borne by
Tenant.
(B) (i) The charge to Tenant for Owner's furnishing
of electricity to Tenant on a survey basis (the "Electric Factor")
shall equal 103% of Owner's actual out-of-pocket cost to purchase such
electricity from the Utility Company supplying same to Owner. At any
time during the Term (but not more often than once annually) Owner or
Tenant may cause a survey to be prepared by a reputable, independent
electrical consultant (to be selected by Owner and reasonably
acceptable to Tenant if Owner is causing the survey to be prepared or
selected by Tenant and reasonably acceptable to Owner if Tenant is
causing the survey to be prepared), the cost of which survey shall be
borne by whomever of Owner or Tenant causes same to be prepared. The
purpose of said survey shall be to determine the cost to Owner (and
charge to Tenant) for the electricity being supplied to Tenant on a
survey basis. The Electric Factor shall, from time to time, be
determined on the basis of the service classification, charges, taxes
and rates at which Owner from time to time purchases electricity for
the Building ("Owner's Electric Rate").
Owner's Electric Rate shall reflect all discounts
received by Owner whether attributable to the Demised Premises, the
Building Project or otherwise. Any and all exemptions, abatements
and/or savings in Owner's Electric Rate and/or the cost of electricity
directly or indirectly (by submeter or survey) payable by Tenant,
arising under, or by virtue of, any incentive or similar programs
actually granted to or acquired by Tenant shall be, and be deemed to
belong to Tenant. Specifically and in furtherance
21
22
of the foregoing, Owner specifically acknowledges and agrees that: (i)
if Tenant is paying Owner for electricity pursuant to Article 38 (B)
or (C) hereof any such exemptions, abatements and/or savings during
the Utility Company's billing period shall be offset against and
deducted (whichever is appropriate) from the additional rent otherwise
due from Tenant to Owner for such billing period; and (ii) in any
other event (including, without limitation, if electricity is obtained
by Tenant pursuant to Article 38 (D) hereof), such exemptions,
abatements and/or savings shall belong to Tenant. Owner agrees (at no
cost to Owner) to cooperate with Tenant (by, for example executing any
necessary documents, forms, applications reasonably acceptable to
Owner) to facilitate Tenant's obtaining the exemptions, abatements
and/or savings herein described. Owner's actual out-of-pocket cost to
purchase electricity shall be determined by dividing Owner's cost of
electricity consumed in the Building Project for a specific billing
period by the number of kilowatt hours of electricity consumed in the
Building Project during such billing period.
(ii) If Owner's Electric Rate shall change
after the date hereof, the Electric Factor shall be adjusted to
reflect such change in Owner's cost of providing electricity to the
Demised Premises.
(iii) So long as any portion of Tenant's
electric usage is on a surveyed basis, Owner, at its cost and expense
may monitor by placement upon Tenant's major equipment (including air
conditioning) measuring devices or apparatus to ascertain that
Tenant's electric usage conforms to the survey hours upon which the
Electric Factor is based.
(C) (i) If Tenant elects to obtain electricity
for any of Tenant's electrical needs in all or any part of the Demised
Premises on a submetered basis, Tenant shall have the right, at
Tenant's expense and option, to install submeters (each, a "Submeter",
and collectively, the "Submeters") in the Building at such locations
and in such manner and of such type as Tenant shall deem reasonably
appropriate to facilitate the efficient measurement of the electricity
used by Tenant. From and after the
22
23
installation of the Submeters and continuing throughout the period of
time during the Term that such Submeters measure Tenant's electric
use, Tenant, at Tenant's sole cost and expense, shall maintain, repair
and replace the Submeters so that the same accurately measure Tenant's
consumption of electricity in the portion(s) of the Building served by
such Submeter(s) If Tenant shall fail to so maintain, repair or
replace any of the Submeters for ten (10) days after receipt of
written notice from Owner of the need for such maintenance, repair or
replacement Owner may at Owner's option (but Owner shall not be
obligated to) perform such maintenance, repair or replacement as Owner
deems necessary to ensure the accurate and efficient operation of such
Submeters and xxxx Tenant the reasonable costs and expenses incurred
in connection therewith, with the next payment then due from Tenant as
additional rent.
(ii) From and after the installation and
commencement of operation of any Submeter, Tenant shall pay to Owner
on account of the electricity thereafter consumed by Tenant, as
measured by such Submeter, an amount (the "Submetered Electricity
Charge") equal to 103% of Owner's actual out-of-pocket cost to
purchase the electricity consumed by Tenant as measured by such
Submeter(s) from the Utility Company supplying same. Tenant's monthly
electricity usage through Submeter(s) shall be determined by monthly
submeter readings (which shall be performed at Tenant's sole cost and
expense by an independent company (the "Submeter Reader") that is
reasonably acceptable to Owner). The method of calculating Owner's
actual out-of-pocket cost to purchase the electricity consumed by
Tenant shall be as set forth in Article 38 (B)(i) above. Accordingly,
the Submetered Electricity Charge shall equal 103% of the product
obtained by multiplying the number of kilowatt hours of electricity
measured by the Submeters in a given billing period by a fraction, the
numerator of which is Owner's actual out-of-pocket cost for all
electricity consumed in the Building Project during such billing
period and the denominator of which is the number of kilowatt hours of
electricity consumed in the Building Project during such billing
period.
23
24
(iii) Tenant shall pay the Submetered
Electricity Charge set forth on the Submeter Xxxx (as hereinafter
defined) within ten (10) days following its receipt of such xxxx. The
parties hereto agree to use their best reasonable efforts to arrange
to have all of the Submeters read within twenty-four (24) hours of
each other on a monthly basis and to have the Submeters read
concurrently with the Utility Company meter reading date for the
Building Project.
(iv) If at any time following the
installation and commencement of operation of the Submeters, any
Submeter(s) are not functioning properly, the Submetered Electricity
Charge for such period shall be deemed to be the amount obtained by
multiplying: (a) a fraction, the numerator of which is the Submetered
Electricity Charge for the affected space during the last full month
that the Submeter(s) were properly functioning and the denominator of
which is the actual number of days in such month; by (b) the number of
days such Submeter(s) were not properly functioning. Notwithstanding
the preceding sentence, such amount shall be appropriately adjusted if
as a result of material seasonal changes or Tenant obtaining
electricity in respect of different portions of the Demised Premises
directly from a Utility Company, electricity use during the comparison
period is substantially different.
(v) The Submeter Reader shall, during
the Term, deliver to Tenant all of the bills (the "Submeter Bills")
with respect to the Submetered Electricity Charge on a monthly basis.
Owner shall arrange to have a duplicate copy of all of the Building's
electric bills promptly sent to Tenant. Each Submeter Xxxx shall set
forth each of the component charges comprising the Submetered
Electricity Charge (and the calculations made to determine such
charges) as measured by each individual Submeter. In the event that
Tenant installs a totalizing meter for the purpose of demand
measurement, all of the Submeters will be read and one xxxx submitted
for each billing period. This xxxx shall set forth each of the
components used to calculate the Submetered Electricity Charge, and
the calculation based on Owner's Electric Rate made to
24
25
determine such charge. Owner shall maintain complete and accurate
records at its place of business set forth hereinabove of Owner's
Electric Rate each of the components thereof, all of the Building's
electric bills, submeter readings, engineer's reports and all related
matters in connection with electricity supplied to the Building and to
Tenant, which records, shall at all times, cover a period of not less
than the immediately preceding two (2) years. Such records shall be
made available to Tenant or Tenant's designee during normal business
hours upon Tenant's request. Owner, Tenant or either of their
designees may inspect any electric meters or Submeters in the Demised
Premises during normal business hours. Owner agrees that it shall
promptly send a copy of any Building electric xxxx it receives and any
other information reasonably required, to the Submeter Reader to
enable such company to prepare the Submeter Bills in accordance with
the terms of this Article.
(vi) If a central processing unit or any
other information collection or processing device is used in the
collection of and/or transmission of information from the Submeters
("CPU"), such CPU shall be accessible to Owner so that Owner can
monitor the Submeters and place service calls for the repair thereof
when it is deemed that any Submeter is not recording information
correctly. The decision to install a CPU shall belong solely to Tenant
and the cost of the initial installation thereof shall be borne solely
by Tenant. Under no circumstances shall Owner permit other tenants to
have access to or permit other tenants to have use of (or in any way
benefit from the installation by Tenant of) a CPU and Owner shall not
use same.
(vii) If Tenant elects to obtain
electricity on a submetered basis and thereafter, for any reason Owner
is not legally permitted to charge Tenant for submetered electricity
as provided herein, then Owner, at Tenant's election, if permitted
under applicable law shall either: (a) furnish electricity to Tenant
pursuant to the provisions of Article 38(B) above; or (b) furnish
electricity to Tenant pursuant to the provisions of Article 38(D)
below. In the event that Tenant is required by law to obtain
electricity pursuant to any method other than the one then being
utilized, such electricity shall be furnished to Tenant by means of
the then existing building system, feeders, risers
25
26
and wiring to the extent the same are suitable and safe for such
purposes. Any additional equipment which may be required for Tenant to
obtain electricity as may from time to time be required by law shall
be installed by Owner with the reasonable cost (including without
limitation the cost of labor, installation and costs incurred for
splitting power) to be shared equally between Owner and Tenant.
(D) If Tenant elects to obtain electricity for any
of Tenant's electrical needs in all or any part of the Demised
Premises directly from a Utility Company, the cost of such electricity
shall be paid by Tenant directly to such Utility Company, and Tenant
shall be responsible for the cost of installing equipment to
effectuate such method ( not to be included as a reimbursible item in
subparagraph E, below).
(E) If at anytime during the Term, there is
insufficient power in the Building to service Tenant's reasonable
needs, Owner, at its sole cost and expense shall take all actions
reasonably necessary (including without limitation applying for
additional power to a Utility Company serving the Building) to provide
Tenant with the electrical power it requires to conduct its business
at the Demised Premises unless Tenant has caused such insufficiency of
power through its negligent acts or willful misconduct in which event
such Owner's action shall be taken at the sole cost and expense of
Tenant. Notwithstanding anything to the contrary contained herein, in
order to insure that the existing capacity of the electrical equipment
in or otherwise serving the Demised Premises or the Building is not
exceeded and to avert any possible adverse effect upon the Building's
electrical service, Tenant shall not make any material alterations or
additions or connections to the electric system of the Demised
Premises or the Building existing as of the date hereof (unless same
are depicted on plans approved in writing by Owner), without obtaining
Owner's written direction as to which risers such additions,
alterations or connections should be connected to, which direction
shall not be unreasonably withheld or delayed. If Owner fails to give
Tenant such direction within fifteen (15) business days following a
request therefor, Owner shall be deemed to have given its direction to
Tenant to connect such addition or alteration to risers which Tenant
chooses in Tenant's reasonable business judgement, three (3) business
days after Tenant has delivered to Owner at anytime following twelve
(12) business days after the
26
27
initial request is made, a second request for direction notifying
Owner that Owner's direction will be deemed given if no response is
delivered to Tenant within said three (3) business day period. If
Tenant complies with Owner's directions regarding the location of the
connection to certain risers and such directions prove to be faulty,
inaccurate or insufficient, Owner shall reimburse Tenant for any and
all costs and expenses incurred by Tenant to: (i) transfer and
rearrange the connection of its installations or equipment to adequate
power lines; and (ii) repair any and all damage to Tenant's
improvements, installations or property caused by Tenant's reliance on
Owner's initial directions. If at any time during the Term as a result
of Tenant's excessive use of electricity in the Demised Premises,
Owner is required to install additional risers and related equipment
or transfer power from existing power lines to other existing power
lines (hereinafter collectively referred to as "Additional Electrical
Equipment") to supply Tenant with the electricity Tenant reasonably
requires, Tenant shall (subject to the terms of the next sentence)
reimburse Owner for the reasonable actual cost of such Additional
Electrical Equipment and the installation thereof within ten (10) days
of the presentation to Tenant of bills therefor. At the expiration or
earlier termination of this lease (unless such earlier termination
results from Tenant's breach of its obligations in this lease), Owner
shall promptly return to Tenant that percentage of the cost of such
Additional Electrical Equipment and the installation thereof paid by
Tenant ("Tenant's Electrical Equipment Cost") in the last six (6)
calendar years of the Term (as the same may have been extended),
together with interest at the Interest Rate plus three (3%) percent
accruing only from the expiration or earlier termination date of the
Term, as follows: (1) Twenty (20%) percent of the Tenant's Electrical
Equipment Cost actually paid by Tenant in the sixth (6th) to last
year; (2) Forty (40%) percent of Tenant's Electrical Equipment Cost
actually paid by Tenant in the fifth (5th) to last year; (3) Sixty
(60%) percent of Tenant's Electrical Equipment Cost actually paid by
Tenant in the fourth (4th) to last year; (4) Eighty (80%) percent of
Tenant's Electrical Equipment Cost actually paid by Tenant in the
third (3rd) to last year; and (5) One Hundred (100%) percent of
Tenant's Electrical Equipment Cost actually paid by Tenant in the
second (2nd) to last and last year. Owner shall not install any
Additional Electrical Equipment for which it intends to seek
reimbursement from Tenant without the consent of Tenant (which consent
shall not be
27
28
unreasonably withheld or delayed). Any request by Owner for Tenant's
consent to the installation of Additional Electrical Equipment shall
be accompanied by a statement setting forth at least the following:
(a) Owner's calculation of Tenant's excessive use of Electricity as
indicated by a survey (to be paid for by Owner), which shall be made
as close as possible to Owner's request for Tenant's consent,
measuring Tenant's total connected load for all equipment in the
Demised Premises at the time the survey is made; (b) the cost of such
Additional Electrical Equipment (accompanied by a proposal for the
supply and installation of such equipment competitive in price from a
reputable supplier and installer); and (c) proof that Tenant's
excessive use is causing the need for the Additional Electrical
Equipment. If Tenant and Owner cannot agree as to whether such
additional electrical equipment is required or as to the cost
therefor, they shall proceed to arbitration pursuant to Article 45
herein to resolve any dispute. The burden of proof shall be on Owner
to show that Tenant's use is excessive and to prove that Tenant's
excessive use of electricity is causing the need for Additional
Electrical Equipment. If Owner shall install such Additional
Electrical Equipment if same is required to supply Tenant with the
amount of electricity Tenant reasonably requires then Owner shall be
entitled to timely reimbursement from Tenant for the cost of the
Additional Electrical Equipment, subject to subparagraph (F) below.
For purposes of this Article, "excessive use" shall
mean that Tenant's total connected load in the Demised Premises on
average calculated separately for each area serviced by the same
risers and calculated on a per square foot basis, is significantly
more than Tenant's total connected load in the Demised Premises
calculated separately for each area serviced by the same risers and on
average and calculated on a per square foot basis, as of the date
hereof.
(F) If Tenant shall dispute any determination made
by Owner or Owner's electrical engineer or consultant ("Owner's
Engineer") with respect to electricity which is to be provided to
Tenant pursuant to this lease or the charges therefor, such dispute
shall be resolved by agreement between
28
29
Owner's Engineer and Tenant's electrical engineer or consultant
("Tenant's Engineer"). If Owner's Engineer and Tenant's Engineer
cannot resolve a dispute hereunder, they shall jointly select an
independent third consultant. If Owner's Engineer and Tenant's
Engineer are unable to agree on the selection of a third consultant
within thirty (30) days , then the third consultant shall be appointed
by the Real Estate Board of New York. Such consultant must have at
least ten (10) year's experience as an electrical consultant in New
York City. The third consultant shall collect whatever information and
data pursuant to whatever method, he/she deems reasonably necessary to
make his/her determination and shall conduct his/her own survey. In
making his/her determination, such third consultant shall not review
the determination of Owner's Engineer or Tenant's Engineer. The
finding of the third consultant shall be binding and conclusive upon
Owner and Tenant if the finding of the third consultant is within ten
(10%) percent of the findings of both Owner's Engineer and Tenant's
Engineer. If the finding of the third consultant varies from either
Tenant's or Owner's finding by more than ten (10%) percent, then the
determination of the third consultant shall not be binding upon either
Owner or Tenant. In such event and if the parties hereto cannot
resolve their dispute, then the dispute shall be submitted to
arbitration pursuant to Article 45 hereof. The fees of the third
consultant shall be split equally between Owner and Tenant. Until such
time as the dispute is resolved as hereinabove provided, Tenant shall
be obligated to pay the disputed charge without prejudice to Tenant's
position. Except as stated in the next sentence, if it is determined
that Tenant has overpaid, Tenant shall be entitled to a credit in the
amount of such excess plus interest at the Interest Rate against the
next succeeding payments due from Tenant for Fixed Rent and additional
rent and such credit shall be indicated on Tenant's rent xxxx. If such
dispute is resolved at the end of the Term or thereafter, any
overpayment by Tenant shall be paid by Owner to Tenant within ten (10)
days of the resolution of such dispute. The provisions of this Article
38(F) shall survive the expiration or earlier termination of the
Lease.
29
30
(G) If at anytime Tenant elects to change the method
by which it obtains or is billed for electricity pursuant to the
provisions of this Article 38, Owner shall not reduce or discontinue
the supply of electricity to Tenant until Tenant obtains such service
pursuant to such other method.
(H) Except as otherwise specified herein, Owner
shall not be liable in any way to Tenant for any failure or defect in
the supply, quantity or character of electric current furnished to the
Demised Premises other than as may result from Owner's negligent acts
or omissions or willful misconduct. Owner shall not take any
affirmative action to diminish the supply of electricity.
(I) Tenant, at Tenant's expense, shall purchase and
install all lamps, bulbs, tubes, ballasts and starters used in the
Demised Premises.
(J) Amounts due to Owner under this Article 38 shall
be deemed additional rent."
Q. ARTICLE 27 OF THE ORIGINAL LEASE, SERVICES PROVIDED BY OWNER:
SUBPARAGRAPH (C)(iii): is deleted in its entirety, and replaced with:
" (C)(iii) Any air conditioning equipment including AC Equipment (as
hereinafter defined) shall be the property of Owner upon the
expiration or earlier termination of this Lease. Subject to the
provisions of this subparagraph, Tenant may install such air
conditioning equipment as it may reasonably require to provide air
conditioning to the Demised Premises. Such equipment (including
Tenant's air conditioning equipment installed in the Demised Premises
prior to November 1, 1998), hereinafter referred to as "AC Equipment",
may include, without limitation, duct work, piping, electric lines,
defusers, controls and related
30
31
equipment, package units and cooling tower. Tenant shall be solely
responsible for promptly repairing and maintaining the AC Equipment at
Tenant's expense throughout the Term. Prior to installing any AC
Equipment, Tenant shall obtain Owner's written consent, if required
under Article 3 above, which consent shall not be unreasonably
withheld or delayed. Tenant shall keep Owner apprised in writing of
changes in AC Equipment. Owner hereby acknowledges that Tenant
currently intends to install a cooling tower on a portion of the roof
of the Building in a location reasonably acceptable to both parties
and Owner hereby consents to such installation at Tenant's sole cost
and expense (but at no charge from Owner), subject to Tenant providing
Owner with an engineer's report (such engineer to be selected (and
paid for) by Tenant and reasonably satisfactory to Owner) stating that
such installation will be structurally sound and will not otherwise
damage the Building. Owner hereby agrees to make available to Tenant,
without charge, a shaft area for installation of Tenant's water riser,
electrical riser, fresh air ducts and related equipment from the roof
of the Building to the basement of the Building in a mutually
acceptable location and size (both parties acting reasonably with
regard thereto, it being understood, however that Tenant shall have
priority with respect to the use of such shaft). Tenant shall
cooperate (at no additional cost to Tenant) in good faith with
Landlord to accommodate Landlord's use of such shaft. If Tenant needs
to install a new shaft for it's AC Equipment or Tenant's electrical
equipment, Tenant shall notify Landlord thereof in writing and Tenant
shall cooperate (at no additional cost to Tenant) in good faith with
Landlord to accommodate Landlord's possible use of such shaft. Tenant
agrees to timely pay for all water consumed by the AC Equipment as
measured by meters or submeters to be installed, repaired and
maintained therefor at Tenant's expense. Owner agrees, upon written
request of Tenant, to promptly register any water meter or submeter
installed by Tenant, at Tenant's expense, with the New York
31
32
City Agency having jurisdiction, and agrees that Tenant shall be
entitled to any credit, rebate, benefit allowed, given or paid with
respect to such meter, submeter or the water consumed by Tenant as
long as same does not adversely affect Owner. Tenant shall timely pay
all charges (sewer, water or other) in regard to any such meter(s) or
submeter(s). Owner agrees to make available up to 450 square feet of
mechanical space on a service floor of the building as and for
Tenant's AC Equipment and/or Tenant's electrical equipment, and up to
300 square feet of space in a basement switch gear room of the
Building as and for Tenant's electric equipment and/or if Tenant goes
to direct electric metering per Article 38 below, in a location
reasonably acceptable to both parties, for which Tenant shall
thereupon pay $12.50 per square foot per annum, as additional rent, in
equal monthly installments the first day in advance of each month
during the Term hereof, commencing the month that Tenant is given
possession of such space until the expiration or earlier termination
of this Lease, or such sooner time as Tenant ceases to use said space
for its AC Equipment or Tenant's electrical equipment.
Owner agrees to contribute $552,388.00 (the "AC Contribution") to
Tenant's cost of the AC Equipment installed by Tenant after November
1, 1998, such Contribution to be made ten (10) days after presentation
to Owner by Tenant of invoices indicating that at least such amount
has been paid by Tenant for AC Equipment. If Owner fails to pay the AC
contribution to Tenant for ten (10) days after notice that it is due,
Tenant shall be entitled to setoff the amount thereof with interest at
the Interest Rate (calculated from the due date of the payment)
against Tenant's ensuing rental obligations to Owner. Upon any
expiration or earlier termination of this Lease Tenant shall surrender
all AC Equipment in its existing condition."
32
33
2. Except as set forth in Paragraph 1, above, the Lease is in all
other respects ratified and confirmed. Each party confirms herewith
that the other party is not in default under any provision of the
Lease as of the date this Amendment is executed and delivered.
3. Owner and Tenant each represent that it has full authority to
execute and deliver this Agreement, subject to Paragraph 4, below.
4. This First Amendment shall have no legal force and effect unless
and until it is executed and delivered by both parties hereto, and any
required mortgagee consent is obtained in writing.
5. Owner acknowledges that Tenant is currently seeking financial
assistance from the New York City Industrial Development Agency and
the Empire State Development Corp. In the event either of the agencies
fails to induce and/or approve the final assistance packages being
sought by Tenant by May 31, 1999, Tenant shall have a right to
terminate and void this First Amendment by written notice delivered to
Owner by June 30, 1999. If Tenant becomes aware of a manner in which
Owner may benefit from any incentive program Tenant is negotiating or
has applied for, then Tenant shall promptly advise Owner of same in
writing.
IN WITNESS WHEREOF, The parties hereto have executed this First
Amendment, as of the day and year first above written.
LECHAR REALTY CORP. LIZ CLAIBORNE INC.
33
34
BY: /S/XXXX X. XXXXXXX BY: /S/XXXXXX XXXXXX
------------------ ----------------
XXXX X. XXXXXXX, PRESIDENT XXXXXX XXXXXX,
SENIOR VICE PRESIDENT-FINANCE
CHIEF FINANCIAL OFFICER
34
35
EXHIBIT A-1
-----------
UNIT NO. SQUARE FEET
-------- -----------
ROOM 201 15,730
ROOM 202 2,500
ROOM 203/203A 9,006
XXXX 000 17,401
XXXX 000 000
XXXX 000 7,870
XXXX 000 7,985
XXXX 000 2,355
ROOM 500 18,108
ROOM 601 6,155
ROOM 611 11,953
ROOM 700 18,000
ROOM 805 1,500
XXXX 000 2,368
XXXX 000 4,300
XXXX 000 1,036
XXXX 000 000
XXXX 000 3,914
XXXX 000 2,591
ROOM 897 2,070
ROOM 1201 1,742
35
36
UNIT NO. SQUARE FEET
-------- -----------
ROOM 1211 5,600
XXXX 0000 1,080
XXXX 0000 8,777
XXXX 0000 000
XXXX 0000 1,036
XXXX 0000 000
XXXX 0000 000
XXXX 0000 916
ROOM 1435 973
ROOM 1438 321
ROOM 1440 1,527
XXXX 0000 1,489
XXXX 0000 1,054
XXXX 0000 000
XXXX 0000 904
ROOM 1463 420
XXXX 0000/00 000
XXXX 0000 1,227
XXXX 0000 000
XXXX 0000 321
ROOM 1480 367
ROOM 1482 535
36
37
ROOM 1485 1,070
UNIT NO. SQUARE FEET
-------- -----------
ROOM 1490 1,605
XXXX 0000 17,939
XXXX 0000 8,417
XXXX 0000 6,996
XXXX 0000 2,862
XXXX 0000 9,441
XXXX 0000 7,559
XXXX 0000 6,203
XXXX 0000 3,236
XXXX 0000 1,690
XXXX 0000 1,565
XXXX 0000 1,300
XXXX 0000 2,775
XXXX 0000 3,799
XXXX 0000 3,763
XXXX 0000 2,831
XXXX 0000X 1,700
XXXX 0000 1,500
XXXX 0000 2,170
ROOM 2010 1,325
37
38
ROOM 2020 1,952
XXXX 0000 3,168
XXXX 0000 2,250
UNIT NO. SQUARE FEET
-------- -----------
ROOM 2202 2,816
XXXX 0000 2,509
XXXX 0000/00 3,882
XXXX 0000 1,746
---------
TOTALS: 276,521
38
39
EXHIBIT C-1
AUTOMATIC OPTION SPACE
RENTABLE INITIAL
SPACE SQUARE FOOTAGE EXPIRATION DATE TENANT
----- -------------- --------------- ------
------------------------------- ---------------------------- ---------------------------- ----------------------------
2301 791 12/31/98 City Girl Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
2303 2,100 10/31/99 Vacant
------------------------------- ---------------------------- ---------------------------- ----------------------------
2305 520 3/31/2001 Dennelle Sales &
Marketing Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
2701 1,345 6/30/99 Pretty Talk Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
2702 2,258 2/29/2008 St. Kitti Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
2703 2,439 7/31/99 Casa Maglia Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
2790 2,025 6/30/99 Pretty Talk Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
39
40
EXHIBIT C-2
CONTINGENT OPTION SPACE
RENTABLE INITIAL
SPACE SQUARE FOOTAGE EXPIRATION DATE TENANT
----- -------------- --------------- ------
------------------------------- ---------------------------- ---------------------------- ----------------------------
0900, 1000 & 1100 54,378 1/31/2007 Xxxxx Xxxxx Inc.
(entire 0xx, 00xx & 00xx 0xx Xxxxx: 18,170
floors) 10th Floor: 18,100
11th Floor: 18,108
------------------------------- ---------------------------- ---------------------------- ----------------------------
2100 & 2900 17,039 11/14/2003 Marisa Xxxxxxxxx Inc.,
(entire 21st & 29th floors) as successor to
Xxxxxxxx Xxxxxxxxx Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
2300 1,250 3/31/2000 Xxxxxxx Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
2304 & 2306 2,412 8/31/2000 St. Germain Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
2308 3,399 12/31/2002 GMR Fashions Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
2401 6,619 3/31/2006 Xxxxxxx Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
2402 & 2410 5,013 1/31/2007 Xxxxx Xxxxx Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
2501 & 2502 3,213 7/31/2003 Xxxxxxxx Xxxxxxx Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
2504, 2507 & 2508 6,541 1/31/2007 Xxxxxx Xxxxxxxxxx Apparel
------------------------------- ---------------------------- ---------------------------- ----------------------------
2601 & 2602 6,925 6/30/2006 Segrets Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
2604 2,829 6/30/2003 Segrets Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
2800 6,000 10/31/2006 Bimoteur Inc.
(entire 28th & 29th floors)
------------------------------- ---------------------------- ---------------------------- ----------------------------
3000 5,996 5/31/2004 Xxxxx Xxxxx Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
3102 2,333 X. Xxxxxxx
------------------------------- ---------------------------- ---------------------------- ----------------------------
3101 3,588 To be let,
presently vacant
------------------------------- ---------------------------- ---------------------------- ----------------------------
3200 4,335 To be let,
presently vacant
------------------------------- ---------------------------- ---------------------------- ----------------------------
3300 3,750 11/30/2001 Xxxxx Xxxx Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
3400 3,628 4/30/2002 Serrance Inc.
------------------------------- ---------------------------- ---------------------------- ----------------------------
40
