SECOND LEASE MODIFICATION AGREEMENT
AGREEMENT, made as of this 11th day of September, 1995, between
MID-CITY ASSOCIATES, a partnership with an office at 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter called 'Landlord'), and ANDOVER TOGS, INC., a
New York corporation with an office at Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter called 'Tenant').
W I T N E S S E T H:
WHEREAS, Landlord and Tenant are respectively the landlord and tenant
under that certain lease, dated as of August 18, 1994, covering the entire
rentable area of the 46th floor, and Storage Rooms 10B, 10C, 10E and 10F on the
10th floor, of the building (the 'Building') known as Xxx Xxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx which lease was modified by a certain First Lease Modification
Agreement, dated as of January 17, 1995 (which lease, as so modified, is
hereinafter called the 'Lease'); and
WHEREAS, the parties wish to modify the Lease (i) so as to delete
Storage Rooms 10B, 10C, 10E and 10F (the 'Deletion Space') from the premises
demised under the Lease, and (ii) so as to add to the premises demised under the
Lease approximately 1,390 rentable square feet of space on the 6th floor of the
Building (Room 602), approximately as shown on the space diagram annexed hereto
and made a part hereof (the 'Additional Space'), all in accordance with the
terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual promises herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that the
Lease shall be deemed to be, and the same hereby is, modified as follows:
1. Effective as of July 17, 1995 (the 'Effective Date'), the
Deletion Space is hereby deleted from the premises demised under the Lease.
On or before the Effective Date, Tenant shall vacate the
Deletion Space and surrender broom-clean possession thereof to Landlord in
accordance with the provisions of the Lease, as if the Deletion Date were the
date set forth in the Lease for the expiration of the leasing of the Deletion
Space.
Notwithstanding such deletion of the Deletion Space, Tenant
shall remain liable to Landlord for any rent, additional rent or other
obligations payable or accruing with respect to the Deletion Space prior to the
Effective Date and the surrender to Landlord of said space.
2. The Additional Space is hereby added to the premises demised
under the Lease for a term to commence as of the Effective Date and to end on
April 30, 2004 (unless it shall sooner terminate as in the Lease provided).
For the Additional Space: the fixed annual rental rate
(without electricity) shall be $21,570 a year; Tenant shall use the Additional
Space solely as and for storage and a mail room relating to Tenant's business,
and for no other purpose; the minimum ERIF under Section 27.04 of the Lease,
effective as of the Effective Date, shall be $3.00 per rentable square foot per
annum, which ERIF shall be subject to increases based on rate changes after such
date, or based on Tenant's consumption, as provided in said Section 27.04; there
shall be no cleaning services provided to the Additional Space; Tenant shall
take and accept possession of the Additional Space in its 'as is' condition,
with no obligation in Landlord to effect any work in and to such space, except
as provided in paragraph 3 below; for purposes of calculating real estate tax
escalation additional rent under Article 45, 'The Percentage' shall mean .0627
percent (.0627%); for purposes of calculating operating expense escalation
additional rent under Article 45, 'The Percentage' shall mean .0681 percent
(.0681%); and the provisions of Article 48 shall not apply to the Additional
Space. Except as herein set forth, the Additional Space otherwise is being
rented pursuant to all of the terms, covenants and conditions of the lease,
including, without limitation, the 'base tax year', 'base year' and 'comparative
year', each as defined in Article 45 of the Lease.
3. Landlord, at its expense, shall effect the following work in
and to the Additional Space, in a Building standard manner and using Building
standard materials: (i) the work set forth in Exhibit A hereto; and (ii) all
work needed to put the existing electrical outlets in working order. Landlord
shall effect such work promptly and expeditiously after the execution and
delivery of this Agreement.
4. Landlord, at its expense and with Tenant's cooperation, shall
furnish all necessary moving and other labor to move Tenant's personal property
from the Deletion Space to the Additional Space or the 46th floor portion of the
premises demised under the Lease, as Tenant may request.
Additionally, Tenant shall be entitled to a rent credit in an
amount equal to the reasonable out-of-pocket cost to Tenant, if any, of (i)
taking apart the existing storage racks and bins in the Deletion Space and
reassembling such racks and bins in the Additional Space, and (ii) transferring
Tenant's telephone service from the Deletion Space to the Additional Space. Such
rent credit shall be applied, until fully depleted, to the first fixed annual
rents (without electricity) due under the Lease with respect to the Additional
Space. Tenant shall provide Landlord with copies of invoices or other
documentation reasonable requested by Landlord to verify such cost.
5. A. Subject to the provisions of subdivision B of this
paragraph 5, at any time after the first year of the term of the leasing of the
Additional Space, Landlord, upon ninety (90) days' prior written notice to
Tenant (the 'Substitution Notice'), shall have the right to substitute
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for the Additional Space other storage space in the Building (the 'Substitute
Storage Space'), provided that such Substitute Storage Space shall be
substantially equivalent in area to the Additional Space. Any such substitution
of space shall be deemed to be effective as of the last day of the month in
which the last day of the aforedescribed ninety (90) day notice period occurs
(the 'Substitution Date'). From and after the Substitution Date, the Lease (as
modified hereby) and all of its terms, including, without limitation, the rental
rate for the Additional Space as set forth herein, (i) shall no longer apply to
the Additional Space, except with respect to obligations which accrued on or
prior to the Substitution Date; and (ii) shall apply to the Substitute Storage
Space as if said Substitute Storage Space had been said originally demised
Additional Space. Notwithstanding the foregoing, Tenant shall be permitted to
continue to occupy the Additional Space for a period of thirty (30) days after
the Substitution Date, which occupancy shall be pursuant to all of the terms,
covenants and conditions of the Lease (as modified hereby), except that Tenant
shall not be required to pay any rent or additional rent. On or before such
thirtieth (30th) day after the Substitution Date, Tenant shall vacate the
Additional Space and surrender broom clean possession thereof to Landlord in
accordance with the provisions of the Lease, as if such thirtieth (30th) day
after the Substitution Date were the date set forth in the Lease (as modified
hereby) for the expiration of the leasing of the Additional Space.
Landlord agrees that, prior to the Substitution Date, at its
expense, it will paint the walls, doors and trim in the Substitute Storage
Space, painted surfaces only, Building standard colors, one coat, one color per
room, color to be selected by Tenant (dark colors and additional colors per room
will be charged for as additional rent). Additionally, Landlord at its expense
and with Tenant's cooperation, shall furnish all necessary moving and other
labor to move Tenant's personal property from the Additional Space to the
Substitute Storage Space or Tenant's office premises, as Tenant may request.
Tenant shall be entitled to a rent credit in an amount equal
to the reasonable out-of-pocket cost to Tenant, if any, of (i) taking apart the
then existing storage racks and bins in the Additional Space and reassembling
such racks and bins in the Substitute Storage Space, and (ii) transferring
Tenant's then existing telephone service from the Additional Space to the
Substituted Storage Space. Such rent credit shall be applied, until fully
depleted, to the first fixed annual rents (without electricity) due under the
Lease with respect to the Substitute Storage Space. Tenant shall provide
Landlord with copies of invoices or other documentation reasonable requested by
Landlord to verify such cost.
B. Notwithstanding anything contained in the foregoing
subdivision A to the contrary, Tenant, within thirty (30) days after it has been
given the Substitution Notice by Landlord, instead of accepting the Substitute
Storage Space, may elect to cancel such Substitution Notice and to delete the
Additional Space from the then existing demised premises under the Lease. Tenant
shall exercise such election by giving Landlord notice thereof on or before the
last day of such thirty (30) day period. Such deletion shall be deemed effective
as of the Substitution Date. Time shall be of the essence with respect to
Tenant's exercise of such election in accordance with the terms hereof. On or
before the Substitution Date, Tenant shall vacate the Additional Space and
surrender broom clean possession thereof to Landlord in
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accordance with the provisions of the Lease, as if the Substitution Date were
the date set forth in the Lease (as modified hereby) for the expiration of the
term of the leasing of the Additional Space. Notwithstanding such deletion of
the Additional Space, Tenant shall remain liable to Landlord for any rent,
additional rent or other obligations payable or accruing with respect to the
Additional Space prior to the Substitution Date and the surrender to Landlord of
said space.
C. If and so long as Tenant is not in default beyond any grace
period in its obligation to pay any rent or additional rent under the Lease (as
modified hereby), Tenant shall have the option to delete from the premises
demised under the Lease all but not part of the Additional Space, upon ninety
(90) days' prior written notice to Landlord. Such deletion shall be deemed
effective as of the last day of the calendar month in which the last day of the
aforedescribed ninety (90) day period occurs (the 'Deletion Date'). Time shall
be of the essence in connection with the exercise by Tenant of any election in
accordance with the terms hereof. On or before the Deletion Date, Tenant shall
vacate the Additional Space and surrender broom clean possession thereof to
Landlord in accordance with the provisions of the Lease, as if the Deletion Date
were the date set forth in the lease for the expiration of the term of the
leasing of the Additional Space. Tenant, however, shall remain liable to
Landlord for any rent, additional rent, or other obligations payable or accruing
with respect to the Additional Space prior to the Deletion Date and the
surrender to Landlord of possession of the Additional Space.
6. Except as herein modified, all of the terms, covenants and
conditions of the Lease are and shall remain in full force and effect and are
hereby ratified and confirmed.
7. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective legal representatives, successors and
permitted assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year fist above written.
WITNESS: (As to Landlord) MID-CITY ASSOCIATES
By: Helmsley-Spear, Inc., Agent
----------------------------- By:
-----------------------------
Name: Xxxxxx X. North
Title: Vice President
WITNESS: (As to Tenant) ANDOVER TOGS, INC.
----------------------------- By:
-----------------------------
Name:
Title:
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