EXHIBIT 10.22
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FOURTH AMENDMENT TO LEASE
THIS FOURTH AMENDMENT TO LEASE (the "AGREEMENT") dated as of April 11,
2002 by and between 200 MADISON ASSOCIATES, L.P., a Delaware limited partnership
having an office c/o Xxxxxx Comfort & Sons, Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("LANDLORD") and FAB INDUSTRIES, INC., a Delaware corporation
with an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("TENANT").
W I T N E S S E T H:
WHEREAS, Landlord's predecessor-in-interest entered into a lease with
the Tenant dated December 8, 1988 which lease was amended by a Lease
Modification Agreement dated April 2, 1991, a Second Lease Modification
Agreement (the "SECOND LEASE MODIFICATION AGREEMENT") dated May 23, 1996 and
Landlord and Tenant have entered into a Third Amendment to Lease ("THIRD
AMENDMENT") dated as of April 24, 2000 (as so amended, the "LEASE") with respect
to a portion of the seventh (7th) floor (the "EXISTING Premises") of the
building (the "BUILDING") known as 000 Xxxxxxx Xxxxxx, located in the City,
County and State of New York, as more particularly described therein;
WHEREAS, Landlord and Tenant desire to relocate Tenant from the
Existing Premises to Suite 2300, consisting of a portion of the twenty-third
(23rd) floor of the Building, as depicted by cross-hatching on EXHIBIT "A"
attached hereto (the "PREMISES") pursuant to the terms, covenants and conditions
hereinafter set forth; and
WHEREAS, the parties desire to modify, amend and supplement the Lease
as hereinafter provided.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00)
paid by Tenant to Landlord and for other good and valuable consideration, the
mutual receipt and legal sufficiency of which are hereby acknowledged, the
parties hereby agree to modify, amend and supplement the Lease as follows:
1. Initially capitalized words used in this Agreement but not
otherwise defined herein shall have the meanings ascribed thereto in the Lease.
2. Landlord and Tenant hereby confirm that the expiration date of
the Lease is July 31, 2005 (the "EXPIRATION DATE").
3. On the date the Landlord substantially completes the
Landlord's Work (as hereinafter defined) (such date referred to as the
"EFFECTIVE DATE"), time being of the essence, Tenant shall vacate and surrender
the Existing Premises to Landlord. Effective as of the Effective Date, the
Existing Premises shall be deemed deleted from the Lease and the term
"PREMISES", as that term is used in the Lease, shall refer only to the Premises
and not the Existing Premises. From the date of this Agreement through the
Effective Date, the Tenant may continue to occupy the Existing Premises until
the
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Landlord substantially completes the Landlord's Work and the obligations of
Tenant hereunder shall be unaffected thereby and the Tenant shall continue to
pay rent and additional rent as set forth in the Lease for the Existing
Premises. It is hereby understood and agreed that Tenant shall not be required
to relocate to the Premises until the Tenant's telephone and computer systems
are operating in the Premises and accordingly, the Tenant hereby agrees to
promptly order and coordinate the performance of such work in the Premises
following the execution of this Agreement by the Landlord; PROVIDED, HOWEVER,
that if Tenant does not take reasonable steps in order to transfer the
aforementioned systems to the Premises within thirty (30) days after the
Effective Date, then the Landlord at the expense of the Tenant may take
reasonable commercial steps to relocate such systems to the Premises. Provided
Tenant's telephones and computer systems are operating. Tenant hereby agrees to
vacate and surrender the Existing Premises to the Landlord and move into the
Premises not later than two (2) business days following the date the Landlord
substantially completes the Landlord's Work. Landlord shall provide the Tenant
with oral notice that the Landlord's Work is substantially complete. If the
Tenant does not vacate and surrender the Existing Premises in accordance with
the terms and conditions of this Agreement, then the Tenant shall be responsible
to pay (i) the Fixed Rent and additional rent under the Existing Lease and (ii)
the rent and additional rent payable under this Agreement with respect to the
Premises and (iii) any actual damages incurred by the Landlord as a result of
the Tenant's failure to vacate, surrender and deliver the Existing Premises to
the Landlord in accordance with the terms of this Agreement. The Tenant hereby
agrees that it shall, in good faith, use its reasonable commercial efforts in
order to coordinate the relocation of its telephone system to the Premises with
the Landlord's performance of the Landlord's Work so as not to delay the
Tenant's relocation from the Existing Premises to the Premises.
4. (a) From and after the Effective Date and in lieu of the
amounts set forth in Section 4 of the Third Amendment, Tenant shall pay fixed
rent (herein, the "FIXED RENT") for the Premises in the amount of One Hundred
Forty Thousand Nine Hundred Forty-Eight Dollars and Fifty Cents ($140,948.50)
per annum payable in equal monthly installments in the amount of Eleven Thousand
Seven Hundred Forty-Five Dollars and Seventy-One Cents ($11,745.71) per month
for the period commencing on the Effective Date through and including the
Expiration Date.
(b) Tenant shall continue to pay all items of fixed rent
and additional rent payable under the Lease through and including the day
immediately preceding the Effective Date. The Tenant shall pay the Fixed Rent to
Landlord in lawful money of the United States which shall be legal tender in
payment of all debts and dues, public and private, at the time of payment, in
advance, in equal monthly installments on the first day of each month during the
term, at the office of Landlord as set forth above, or such other place as
Landlord may designate, without any set-off, counterclaim or deduction
whatsoever.
5. The provisions of Section 4 of the Third Amendment shall be of
no force and effect as of the Effective Date. From and after the Effective Date,
and notwithstanding anything contained herein to the contrary, provided Tenant
shall not be in default beyond applicable notice, grace and cure periods of its
obligations under this
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Lease, Tenant shall be entitled to receive credits against the fixed annual rent
(and not any item of additional rent) payable hereunder in the amount of One
Thousand Four Hundred Fifty-Two Dollars and Ninety-Five Cents ($1,452.95) per
month for the period from the Effective Date through and including July 31, 2005
(the "ABATEMENT").
6. Tenant shall continue to pay additional rent pursuant to the
terms and conditions of the Lease throughout the Lease term, PROVIDED, HOWEVER,
that effective as of the Effective Date, the term "PERCENTAGE" as set forth in
Section 40.3 of the Lease shall be deemed modified and shall be deemed to be
"0.959%." Tenant shall continue to pay tax escalation additional rent pursuant
to the terms and conditions of the Lease, unamended hereby, through and
including the day preceding the Effective Date.
7. From and after the Effective Date, and in lieu of the amounts
set forth in Section 6 of the Third Amendment (but the amounts set forth in the
Third Amendment shall continue to be effective through the day immediately
preceding the Effective Date). Tenant shall pay the following amounts to the
Landlord:
(a) Eight Thousand Six Hundred Twenty-Nine Dollars and
Thirty-Two Cents ($8,629.32) per annum payable in equal monthly installments in
the amount of Seven Hundred Nineteen Dollars and Eleven Cents ($719.11) for the
period from the Effective Date through and including April 30, 2003;
(b) Ten Thousand Four Hundred Seventy Dollars and Forty
Cents ($10,470.40) per annum payable in equal monthly installments in the amount
of Eight Hundred Seventy-Two Dollars and Fifty-Three Cents ($872.53) for the
period from May 1, 2003 through and including April 30, 2004;
(c) Twelve Thousand Four Hundred Twenty-Six Dollars and
Fifty-Four Cents ($12,426.54) per annum payable in equal monthly installments in
the amount of One Thousand Thirty-Five Dollars and Fifty-Five Cents ($1,035.55)
for the period from May 1, 2004 through and including April 30, 2005;
(d) Fourteen Thousand Four Hundred Ninety-Seven Dollars
and Thirty-Nine Cents ($14,497.39) per annum payable in equal monthly
installments in the amount of One Thousand Two Hundred Eight Dollars and Twelve
Cents ($1,208.12) for the period from May 1, 2005 through the expiration of the
term of the Lease.
8. Prior to the Effective Date, Tenant shall continue to pay for
electricity furnished to the Existing Premises in accordance with Article 41 of
the Lease on a rent inclusion basis. From and after the Effective Date and IN
ADDITION TO the Fixed Rent set forth herein, the Tenant shall pay Seventeen
Thousand Two Hundred Fifty-Nine Dollars ($17,259.00) per annum payable in equal
monthly installments in the amount of the One Thousand Four Hundred Thirty-Eight
Dollars and Twenty-Five Cents ($1,438.25) per month, which amount shall be
subject to increases, but not decreases, in accordance with Article 41 of the
Lease. Tenant shall pay such monthly payments on the first day of each month
during the Lease term together with monthly installments of fixed rent due
hereunder.
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9. Tenant acknowledges and represents to Landlord that it has
inspected the Premises and that it is fully familiar with the physical condition
and state of repair thereof, and Tenant does hereby agree to accept same in its
current condition and state of repair, subject to any and all defects therein,
latent or otherwise, "AS IS," and Landlord shall have no obligation to do any
work or make any installation, repair or alteration of any kind to or in respect
thereof, except as elsewhere in this Agreement otherwise expressly provided.
Further, the taking of possession of the Premises or any portion or portions
thereof by Tenant shall be conclusive evidence that same was in satisfactory
condition at the time such possession is so taken. Tenant, at its sole cost and
expense, shall be obligated to make all improvements to the Premises that are
necessary for the conduct of Tenant's business and operations. Tenant hereby
acknowledges that Landlord has fully performed any obligations under the Lease
(as so amended) which require the Landlord to perform any work in the Existing
Premises. Notwithstanding anything to the contrary set forth in this Agreement
or the Lease, the Landlord, at its cost and expense, shall (i) replace the
missing ceiling tiles in the Premises, (ii) paint the Premises using Building
standard materials in Building standard colors and (iii) shampoo and clean the
carpeting in the carpeted area of the Premises (collectively, the "LANDLORD'S
WORK"). Tenant hereby acknowledges that Landlord has fully performed any
obligations under the Lease which require the Landlord to perform any work in
the Existing Premises.
10. Tenant shall surrender and vacate the Existing Premises on or
before the Effective Date, in broom clean as is condition, as if the Effective
Date was the expiration date set forth in the Lease, ordinary wear and tear
excepted. Time shall be of the essence as to such date. Additionally, if Tenant
shall fail to remove its property from the Existing Premises by the Effective
Date, time being of the essence, then Landlord, without being guilty of any
trespass and without being held liable at law or in equity for such removal, may
at its option remove and store Tenant's property at the cost and expense of
Tenant and Tenant hereby releases Landlord of and from any and all liability by
reason thereof.
11. By their respective execution of this Agreement, Landlord and
Tenant each represents and warrants to the other, as to itself that it has the
full right, power and authority to enter into this Agreement and is in good
standing in its jurisdiction of formation and duly qualified to conduct business
in the State of New York.
12. Tenant acknowledges and agrees that, as of the date hereof,
its obligations under the Lease, as modified and amended by this Agreement, are
not subject to any reduction, limitation, impairment or termination for any
reason whatsoever, including, without limitation, any claim of waiver, release,
surrender or compromise and are not subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of any of the Tenant's obligations under the
Lease, as modified by this Agreement, or otherwise, arising prior to the date of
this Agreement.
13. The provisions of the Lease relating to notices are hereby
modified so that all notices to Landlord shall be addressed as follows: Landlord
at c/o Xxxxxx
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Comfort & Sons, Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Attention: Mr.
Xxxxx Xxxxxx, with a copy to Loeb Partners Realty LLC, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xx. Xxxxxx Xxxxxx and Xxxxxxxx & Xxxxxxxx LLP,
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X.
Xxxxxxxx, Esq. Notices to Tenant shall be addressed to the Tenant at the
Premises.
14. Tenant represents and warrants that it has not dealt with any
broker in connection with this Agreement other than Xxxxxx Comfort & Sons, Inc.
(the "BROKER") and Tenant does hereby indemnify and agree to hold Landlord
harmless from and against any and all liability, loss, claim, damage, cost or
expense (including, without limitation, reasonable attorneys' fees and
disbursements) arising out of or in connection with claims for commission made
against Landlord by any broker, finder or like agent who claims to have dealt
with Tenant in connection with the execution and delivery of this Agreement
(other than the Broker). Landlord shall pay the Broker any commission payable in
connection with this Agreement pursuant to separate agreement. This provision
shall survive the expiration of the Lease.
15. (a) Tenant shall have the option (the "RENEWAL OPTION")
to extend the term of this Lease for one (1) additional period of two (2) years
(the "RENEWAL TERM"). The Renewal Term shall commence on the date immediately
succeeding the Expiration Date and end on the anniversary of the Expiration
Date, provided that (i) this Lease shall not have been previously terminated in
accordance with the terms thereof, (ii) Tenant (and any affiliates that are
entitled to occupy the Premises in accordance with the terms and conditions of
this Lease) shall occupy the entire Premises for the conduct of its business and
(iii) no default shall have occurred and be continuing beyond the expiration of
any applicable notice or cure periods (x) on the date Tenant gives Landlord
written notice (the "RENEWAL NOTICE") of Tenant's election to exercise the
Renewal Option, or (y) on the Expiration Date. The Renewal Option may be
exercised with respect to the entire Premises only and shall be exercisable by
Tenant delivering the Renewal Notice to Landlord at least seven (7) months prior
to the Expiration Date. Time is of the essence with respect to the giving of the
Renewal Notice. Upon the giving of the Renewal Notice with respect to the
Renewal Term, Tenant shall have no further right or option to extend or renew
the Term of this Lease.
(b) If Tenant exercises the Renewal Option, the Renewal
Term shall be upon the same terms, covenants and conditions as those contained
in this Lease, except that (i) the fixed Rent shall be deemed to mean the Fixed
Rent as determined pursuant to subparagraph (c) of this Section 15, (ii) Tenant
shall not be entitled to any credit against the Fixed Rent and (iii) the
provisions of subparagraph (a) of this Section 15 concerning Tenant's right to
renew the Term shall not be applicable during the Renewal Term.
(c) The Fixed Rent for the Premises for the Renewal Term
shall be the annual fair market rental value of the Premises (the "FAIR MARKET
RENT") as of the first day of the Renewal Term (the "RENTAL Value") as
determined by Owner, but under no circumstances shall the Fixed Rent for the
Renewal Term be less than the aggregate of the Fixed Rent and the Additional
Rent payable by Tenant for the year
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immediately preceding the first month of the Renewal Term; provided, however,
that the Fair Market Rent for the first (1st) year of the Renewal Term shall be
ninety-five percent (95%) of the annual fair market rental value and the Fair
Market Rent for the second (2nd) year of the Renewal Term shall be the annual
fair market rental value. The Fair Market Rent shall be determined based upon
all relevant factors and assuming that Owner has had a reasonable time to locate
a tenant who rents with the knowledge of uses to which the Premises can be
adapted, and that neither Owner nor the prospective tenant is under any
compulsion to rent.
(d) If Tenant exercises the Renewal Option, for purposes
of determining the Fair Market Rent, the following procedures shall apply:
(i) The Fair Market Rent shall be determined by Owner
on the basis of the highest and best use (or such other use as may be permitted
under applicable Legal Requirements) of the Premises assuming that the Premises
are free and clear of all leases and tenancies (including this Lease) whether
improved or unimproved except, however, that the Fair Market Rent shall not be
less than the total Fixed Rent and additional rent payable by Tenant with
respect to the year immediately preceding the Renewal Term in question.
(ii) Owner shall give Tenant written notice (the
"RENT NOTICE") not later than nine (9) months prior to the Expiration Date (but
in no event later than sixty (60) days after the date Tenant delivers the
Renewal Notice to the Owner) which Rent Notice shall set forth Owner's
determination of the Fair Market Rent ("OWNER'S DETERMINATION").
(iii) If Owner's Determination exceeds the Fixed Rent
payable by Tenant on the Expiration Date then Tenant shall give Owner written
notice ("TENANT'S NOTICE"), within 30 days after Tenant's receipt of the Rent
Notice, as to whether Tenant accepts or disputes Owner's Determination. If
Tenant in Tenant's Notice accepts Owner's Determination or if Tenant fails or
refuses to give Tenant's Notice as aforesaid, Tenant shall be deemed to have
accepted Owner's Determination for the Renewal Term in accordance with the terms
of this Section 15. If Tenant in Tenant's Notice disputes Owner's Determination,
then Tenant's Notice shall contain Tenant's determination of the Fair Market
Rent ("TENANT'S DETERMINATION") as well as the name of an independent real
estate appraiser ("TENANT'S CONSULTANT"), to act as Tenant's representative if
Owner does not accept Tenant's Determination.
(iv) Owner shall give Tenant written notice ("OWNER'S
NOTICE"), within 20 days after Owner's receipt of Tenant's Determination, as to
whether Owner accepts or disputes Tenant's Determination. If Owner in Owner's
Notice disputes Tenant's Determination, Owner shall appoint an independent real
estate appraiser ("OWNER'S CONSULTANT") to act as Owner's representative. Not
later than ten (10) Business Days after Tenant's receipt of Owner's Notice,
Tenant's Consultant and Owner's Consultant shall meet (in person or by
telephone) to mutually agree upon the determination of the Fair Market Rent, and
their determination shall be final and binding upon the parties. If Owner's
Consultant and Tenant's Consultant shall be unable to reach
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such determination within 20 days after Tenant's receipt of Owner's Notice, both
of the Consultants shall each designate their final fair market rents, if they
have changed from the initial determination, and shall jointly select a third
independent real estate appraiser ("THIRD CONSULTANT") whose fee shall be borne
equally by Owner and Tenant. In the event that Owner's Consultant and Tenant's
Consultant shall be unable to jointly agree on the designation of the Third
Consultant within five days after they are requested to do so by either party,
then the parties agree to allow the American Arbitration Association or any
successor organization to designate the Third Consultant in accordance with the
rules, regulations and/or procedures then obtaining of the American Arbitration
Association or any successor organization.
(v) The Third Consultant shall conduct such hearings
and investigations as he may deem appropriate and shall, within 20 days after
the date of designation of the Third Consultant, chose either Owner's or
Tenant's Determination, as it may be modified at the time of their selection of
the Third Consultant, and such choice by the Third Consultant shall be
conclusive and binding upon Owner and Tenant. Each party shall pay its own
counsel fees and expenses, if any, in connection with any arbitration under this
subparagraph, including the expenses and fees of any Consultant selected by it
in accordance with the provisions hereof. Any Consultant appointed pursuant to
this Section 15 shall be an independent real estate appraiser with at least ten
years' experience in leasing and valuation of properties which are similar in
character to the Building, a member of the American Institute of Appraisers of
the National Association of Real Estate Boards, a member of the Society of Real
Estate Appraisers, and shall not have any personal or business relationship with
the either Owner or Tenant which might be, or have the appearance of, a conflict
of interest. The Consultants shall not have the power to add to, modify or
change any of the provisions of this Lease.
(e) After a determination has been made of the Rental
Value for the Renewal Term, the parties shall execute and deliver to each other
an instrument setting forth the Rental Value for the Renewal Term as hereinabove
determined.
(f) If the final determination of the Rental Value shall
not be made on or before the first day of the Renewal Term in accordance with
the provisions of this Section 15, pending such final determination Tenant shall
continue to pay, as the Fixed Rent for such Renewal Term, an amount equal to the
Fixed Rent and all Additional Rent payable for the year immediately preceding
the Renewal Term. In all instances Tenant shall continue to pay all Additional
Rent as set forth in the Lease. If, based upon the final determination hereunder
of the Rental Value, the payments made by Tenant on account of the Fixed Rent
for such portion of the Renewal Term were (i) less than the Rental Value payable
for the Renewal Term, Tenant shall pay to Owner the amount of such deficiency
within ten (10) days after demand therefor or (ii) greater than the Rental Value
payable for the Renewal Term, Owner, at its option but within thirty (30) days
of the final determination of Rental Value, shall either refund to Tenant or
credit towards the next payment or payments of Fixed Rent, the amount of such
excess until the excess, if any, has been fully credited to Tenant.
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16. Tenant shall continue to pay all items of Fixed Rent and
additional rent payable under the Lease for the Existing Premises through the
Effective Date and Tenant's obligations in respect thereof shall survive the
Effective Date.
17. The submission of this Agreement to Tenant shall not be
construed as an offer or a binding agreement, nor shall the Tenant have any
rights with respect thereto, unless and until Landlord shall execute a copy of
this Agreement and unconditionally deliver same to Tenant.
18. Except as expressly modified, amended and supplemented by this
Agreement, all of the terms, covenants and conditions of the Lease shall remain
in full force and effect.
19. This Agreement may not be changed orally but only by written
agreement signed by both parties.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first written above.
200 MADISON ASSOCIATES, L.P.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
FAB INDUSTRIES, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: President/Chief Operating
Officer
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 5th day of April in the year 2002 before me, the undersigned,
personally appeared Xxxxxx Xxxxx, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
capacity, and that by his /their signature on the instrument, the individual, or
the person upon behalf of which the individual acted, executed the instrument.
/s/ Xxxxxxx XxXxxxxxx
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Notary Public - Xxxxxxx XxXxxxxxx
[stamp of Xxxxxxx XxXxxxxxx]
