Exhibit 10(Q)
SUBLEASE
THIS SUBLEASE is dated as of the day of , 1997, between REVLON
CONSUMER PRODUCTS CORPORATION a Delaware corporation ("Sublessor"), having an
office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and THE COSMETIC CENTER,
INC., a Delaware corporation ("Sublessee"), having an office at ______________.
.
WITNESSETH:
WHEREAS, pursuant to a lease ("Main Lease"), dated as of March , 1989,
between General Motors Corporation ("GM"), as landlord, and Revlon, Inc., as
tenant, Sublessor has leased certain premises located on (i) the 49th floor and
defined in the Main Lease as the "49 Floor Premises" and (ii) the concourse
level and defined in the Main Lease as the "Concourse Premises" in the building
(the "Building") located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx;
WHEREAS, Xxxxxxxxxx Associates, L.P. ("Landlord") is the
successor-in-interest to GM under the Lease; and
WHEREAS, Sublessor is the successor-in-interest to Revlon, Inc. under the
Lease; and
WHEREAS, Sublessee is a subsidiary of Sublessor which is "controlled by or
under common control with" Sublessor within the meaning of Section 8.03 of the
Lease; and
WHEREAS, Sublessee desires to sublease from Sublessor and Sublessor is
willing to sublease to Sublessee the Concourse Premises (the "Premises"), on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, it is hereby agreed as follows:
1. Sublessor hereby leases to Sublessee and Sublessee hereby takes and
hires from Sublessor the Premises, for a term ("Term") commencing on the date
hereof ("Commencement Date") and ending at noon on December 30, 2004
("Expiration Date"), unless such Term shall be sooner terminated as provided
herein.
2. A. The rent reserved under this Sublease for the Term hereby created
shall be and consist of:
(i) Fixed rent ("Fixed Rent"), consisting of (a) base rent ("Base
Rent") at the rate of per annum (in equal monthly installments of
) for the period commencing on the Commencement Date and
continuing through and including , and per annum
(in equal monthly installments of ) for the period commencing on
, and continuing through and including the Expiration Date, and
(b) charges for electric current at the rate of per annum (in
equal monthly installments of ); which Fixed Rent shall be
payable in equal monthly installments commencing on the Commencement Date
and thereafter payable at least five (5) Business Days (as defined in
Paragraph 2B hereof) prior to the first day of each month during the Term,
except that the first installment of Fixed Rent due hereunder and the first
installment of Additional Sublease Rent due in accordance with Paragraphs
2A (ii) (a) and (b) shall be payable by Sublessee upon the execution of
this Sublease; and
(ii) Additional rent ("Additional Sublease Rent") as follows:
(a) seven percent (7%) of any and all increases in "Taxes" (as
defined in Section 4.01(c) of the Main Lease) above the Base Year Taxes,
which for purposes of this Sublease shall mean Taxes payable for the New
York City real estate tax year commencing July 1, 1996, and ending June
30, 1997;
(b) seven percent (7%) of any and all increases in the "Wage Rate"
(as defined in Section 5.01(d) of the Main Lease) above the "Base Rate",
which for purposes of this Sublease shall mean the Wage Rate in effect
for the twelve month period commencing January 1, 1997;
(c) seven percent (7%) of any and all increases in "Building Energy
Costs" (as defined in Section 5.01(c) of the Main Lease) above the "Base
Building Energy Costs", which for purposes of this Sublease shall mean
Building Energy Costs incurred during the twelve month period commencing
January 1, 1997;
(d) seven percent (7%) of any and all costs, expenses, charges,
payments or adjustments under the Main Lease as shall be allocable to
the premises demised under the Main Lease generally other than the fixed
annual rental specified therein and the matters set forth in clauses
(a), (b), (c) and (e) of this Paragraph 2A(ii); and
(e) one hundred percent (100%) of any and all costs, expenses,
charges, payments or adjustments under the Main Lease which are
attributable solely to the Premises other than the fixed annual rental
specified therein and the matters set forth in clauses (a), (b), (c),
and (d) of this Paragraph 2A(ii).
Sublessee shall only be obligated hereunder to pay to Sublessor such portion of
any such Additional Sublease Rent as shall be allocable to the period commencing
on the Commencement Date and ending on the Expiration Date. Additional Sublease
Rent shall be payable to Sublessor within five (5) days after billing by
Sublessor therefor, without any deduction, offset, abatement, defense and/or
counterclaim whatsoever.
B. "Rent" shall mean Fixed Rent and Additional Sublease Rent payable
hereunder, collectively. "Business Days" shall mean all days other than days on
which banks in the City of New York are required or permitted to close in
accordance with federal or state laws. "Losses" means all losses, costs,
liabilities, claims, damages, penalties, fines and expenses (including, without
limitation, attorneys' fees and expenses).
C. If the Commencement Date shall not occur on the first day of a calendar
month, or the Expiration Date shall not occur on the last day of a calendar
month, Rent for the month in which the Commencement Date or Expiration Date
occurs, as the case may be, shall be prorated on a per diem basis.
D. In the event that any sums payable by Sublessor under the Main Lease are
adjusted by Landlord at the end of a year or other period, then either (i)
Sublessee shall pay to Sublessor, within five (5) Business Days after billing
therefor, Sublessee's allocable portion of any deficiencies payable to Landlord
by reason of such adjustment, which obligation of Sublessee shall survive the
termination of this Sublease, or (ii) Sublessor shall credit against the next
payments of Additional Sublease Rent coming due hereunder Sublessee's allocable
portion of any refund or credit received by Sublessor from Landlord by reason of
such adjustment, except that if no further payments of Additional Sublease Rent
shall be due hereunder, then Sublessor shall refund such amount to Sublessee
promptly upon receipt of the same from Landlord. Statements rendered by Landlord
or Sublessor shall be conclusive and binding upon Sublessee for the purpose of
determining amounts payable by Sublessee under this Sublease.
E. Fixed Rent and, except as otherwise specifically provided in this
Sublease, Additional Sublease Rent shall be paid by Sublessee to Sublessor,
without notice or demand therefor, in lawful money of the United States of
America, by check drawn on a bank that is a member of the New York Clearing
House Association, at the address of Sublessor set forth herein or at such other
address as may be designated by Sublessor from time to time. Sublessor shall
have the same rights and remedies in the event of default or non-payment of
Additional Sublease Rent as are available to Sublessor in connection with a
default or non-payment of Fixed Rent. If any amount payable by Sublessee or
repayable to Sublessee as provided for herein shall be determined after
termination of this Sublease, such amount shall nevertheless be payable by
Sublessee or repayable to Sublessee, as the case may be, in the same manner as
if this Sublease had not terminated.
F. If any installment of Rent is not paid on or before the date on which it
is due, Sublessee shall also pay to Sublessor on demand, as Additional Sublease
Rent, interest thereon, from the original due date until paid, at an annual rate
of the lesser of (i) two percent (2%) plus the "prime" or "base" interest rate
announced by Citibank, N.A., New York, New York (or any successor thereto) from
time to time or (ii) the maximum rate permitted by law.
3. Sublessee is thoroughly acquainted with the condition of the Premises
and agrees to accept the Premises on the Commencement Date AS-IS and with all
defects, and agrees that Sublessor is not required to perform any work or
furnish materials of any kind, nature or description to the Premises either
prior to the Commencement Date or at any other time during the Term of this
Sublease. Sublessee is the successor by merger to Prestige Fragrance and
Cosmetics, Inc. ("PFC"), which has been in possession of the Premises since the
"Commencement Date" of the Main Lease. No alterations, installations,
renovations or other items of work are necessary to prepare the Premises for
Sublessee's occupancy.
4. Sublessee shall observe and perform, for the benefit of Sublessor and
Landlord, all of the terms, covenants, conditions, and obligations contained in
the Main Lease to be performed and observed on the part of Sublessor, as the
tenant thereunder, during the Term of this Sublease with respect to the
Premises, other than (i) the covenants of Sublessor to pay Landlord the fixed
annual rental reserved under the Main Lease, and (ii) the covenants of Sublessor
to pay to Landlord additional rent for increases in Taxes, Wage Rates, Building
Energy Costs and electricity, Sublessee's obligations with respect to Rent
having been separately set forth hereinabove. Sublessee shall refrain from doing
or causing to be done, or suffering or permitting any thing or act to be done,
which would or might constitute a breach or default under the Main Lease or
might cause the Main Lease or the rights of Sublessor, as tenant under the Main
Lease, to be canceled, terminated, forfeited, surrendered or materially
impaired, or which would or might make Sublessor liable for any Losses, it being
expressly agreed that any such breach or violation or default shall constitute a
material breach by Sublessee of a material obligation under this Sublease.
Sublessee shall indemnify, defend and hold Sublessor harmless from and against
any and all Losses incurred in connection with or arising out of Sublessee's
failure to perform those terms, covenants and conditions of the Main Lease which
are or shall be applicable to Sublessee, and all amounts payable on account of
such indemnity shall be
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deemed Additional Sublease Rent and shall be payable upon demand. This Sublease
is subject and subordinate in all respects to the Main Lease, and to the matters
to which the Main Lease is subject and subordinate, and Sublessor may (but shall
not be obligated to) exercise all of the rights, privileges, claims, powers and
remedies with respect to the Premises reserved to Landlord under the Main Lease,
to the same extent as if fully set forth herein at length, including, without
limitation, the rights (x) arising out of any default in the payment of money or
otherwise, (y) to give, refuse to give or receive any consent, notice, waiver or
approval, and (z) to exercise any election or option (including, without
limitation, election of remedies). This Sublease is also subject to any
amendments to the Main Lease or supplemental agreements hereafter made between
Landlord and Sublessor, provided that any such amendments and/or supplemental
agreements do not increase the monetary obligations of Sublessee under this
Sublease or otherwise materially and adversely affect Sublessee or its use of
the Premises.
5. The Premises shall be occupied and used by Sublessee only in accordance
with Article 2 of the Main Lease as specifically incorporated herein and for no
other purpose or manner of use. The continued use of the Premises as heretofore
operated by PFC shall be deemed to constitute compliance with such provision for
all purposes of this Sublease. Sublessee agrees to provide the employees of
Sublessor and its affiliates (hereinafter defined) with the same discounts on
sale and other preferential treatment with which Sublessee provides its own
employees from time to time. Sublessee shall be entitled to demand presentation
of a valid and current employer identification card or equivalent evidence of
employment before granting such discount or other preferential treatment. Such
preferential treament may include, but not be limited to, special pricing or
discounts on items sold. For purposes of this Paragraph 5 and Paragraph 26
hereof, an "affiliate" shall mean any entity controlling, controlled by, or
under common control with Sublessor. "Control" shall have the meaning given to
such term in the Main Lease.
6. A. Except as otherwise provided either in this Paragraph 6 or elsewhere
in this Sublease, this Sublease shall specifically incorporate all of the terms,
covenants, conditions and provisions of the Main Lease (the incorporated terms,
covenants, conditions and provisions being hereinafter collectively referred to
as the "Incorporated Articles"). Sublessor shall have all the rights, but none
of the obligations, of Landlord under the Incorporated Articles. Sublessee shall
be entitled, during the term of this Sublease (i) to receive all services,
utilities, repairs and facilities to be provided by Landlord under the Main
Lease, subject to and in accordance with the provisions of the Main Lease
relating to the furnishing of such services, utilities, repairs and facilities,
and (ii) to have all the rights and benefits afforded to Sublessor by the Main
Lease, except as otherwise provided in this Sublease and except that the
following provisions of the Main Lease shall be deemed to be inapplicable, as
between Sublessor and Sublessee (but shall continue in full force and effect
with respect to the relationship between Landlord and Sublessor), with respect
to this Sublease: Article 1 (except that the definition of "Building", "49th
Floor Premises" and "Concourse Premises" are specifically incorporated herein);
the first sentence of Section 2.01; Article 3; Section 4.01(d); Section 4.04;
the third sentence of Section 4.05; Section 5.01(f); Section 5.03(b); Section
6.04; Article 7; Article 8 (other than Section 8.02 which is specifically
incorporated herein by reference); Section 12.05; Section 14.02; the first
sentence of Section 17.02 ; Lines 7- 40 on page 41; Section 21.03; Section
21.08; Section 31.01; Section 36.02; Article 40; Section 41.02 and any other
provision contained in the Main Lease relating expressly and solely to the 49th
Floor Premises.
B. Anything contained herein to the contrary notwithstanding, the specific
inclusion of any article of the Main Lease shall not require Sublessee to make
double payments of any charges or escalations thereunder. Any reference to
"demised Premises" or "Premises" in the Incorporated Articles shall be deemed a
reference to the Premises herein. If there shall be any inconsistency between
the Incorporated Articles and the express provisions of this Sublease, such
provisions of this Sublease shall govern. Notwithstanding the foregoing, any
reference to the Main Lease without reference to the Incorporated Articles or to
any specific provisions of the Main Lease shall mean all terms covenants,
conditions and provisions of the Main Lease.
C. Sublessor shall have no responsibility or liability of any nature
whatsoever to Sublessee as a consequence of any default of or by Landlord under
the Main Lease or for Landlord's failure or delay in furnishing to Sublessee or
the Premises any services of any kind whatsoever which Landlord is required to
furnish to Sublessor or to the Premises. In furtherance (and without limitation)
of the foregoing, Sublessee agrees that Sublessor shall have no obligation to
furnish heat, air conditioning, electricity, cleaning service, and/or any other
building services of any kind whatsoever, and that Sublessor shall not be
obligated to make any repairs or restorations of any kind whatsoever in the
Premises, Building or building facilities.
D. If Landlord shall default in any of its obligations to Sublessor with
respect to the Premises, Sublessee shall be entitled to participate with
Sublessor in the enforcement of Sublessor's rights against Landlord (and in any
recovery or relief obtained), but Sublessor shall have no obligation to bring
any action or proceeding or to take any steps to enforce Sublessor's rights
against Landlord. Any action or proceeding so instituted by Sublessor shall be
at the expense of Sublessee. If, after written request from Sublessee, Sublessor
shall fail or refuse to take appropriate action for the enforcement of
Sublessor's rights against Landlord, Sublessee shall have the right to take such
action in its own name and, for that purpose and only to
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such extent, the rights of Sublessor to enforce the obligations of Landlord
under the Main Lease with respect to the Premises are hereby conferred upon and
are conditionally assigned to Sublessee and Sublessee hereby is subrogated to
such rights (including, without limitation, the benefit of any recovery or
relief); provided, however, that (i) Sublessee shall only have such rights if
Sublessee shall not be in default under this Sublease and (ii) Sublessor shall
have the right to require Sublessee to discontinue such action if, in the
reasonable opinion of Sublessor, such action may cause a cancellation,
forfeiture, termination or material impairment of the rights of Sublessor under
the Main Lease. Sublessee shall indemnify, defend and hold Sublessor harmless
from and against any and all Losses incurred in connection with or arising out
of the taking of any such action by Sublessee.
7. A. All alterations, decorations, installations, additions, fixtures,
equipment and improvements in and to the Premises made by either Sublessor or
Sublessee (collectively, the "Leasehold Improvements"), except for movable
furniture, counters, shelving and equipment installed at Sublessee's expense
(collectively, "Sublessee's Property"), shall be and remain part of the Premises
and shall not be removed by Sublessee. Sublessee's Property shall be and remain
the property of Sublessee, may be removed by it at any time during the term of
this Sublease, and shall be removed by Sublessee at the termination of this
Sublease, whereupon Sublessee shall repair any damage caused by such removal.
Notwithstanding anything to the contrary contained herein, if Sublessee has made
any Alterations (as defined in Paragraph 7B hereof) to the Premises
(irrespective of whether Sublessor has consented to such Alterations) and if
Sublessor shall be required by Landlord pursuant to the terms of the Main Lease
to (i) remove all or any part of the Leasehold Improvements at the termination
of this Sublease and (ii) repair any damage occasioned to the Premises or the
Building by reason of such removal, Sublessor shall have the right to require
Sublessee to so remove such Leasehold Improvements and so repair the Premises.
Any of Sublessee's Property which shall remain in the Premises following the
termination of this Sublease and the vacation of the Premises by Sublessee may,
at the option of Sublessor, be deemed to have been abandoned and either may be
retained by Sublessor as its property or be removed and disposed of, without
accountability and at Sublessee's expense, in such manner as Sublessor may see
fit, with any damage to the Premises or the Building caused by such removal to
be repaired at Sublessee's expense. As a courtesy Sublessor shall use reasonable
efforts to notify Sublessee prior to such removal, but shall have no liability
to Sublessee for failure to so notify.
B. Sublessee shall make no alterations, decorations, installations,
additions or improvements (collectively, "Alterations") in the Premises without
the prior written consent of Sublessor, which consent Sublessor shall not
unreasonably withhold provided that Landlord has consented thereto and that
Sublessee complies with all applicable provisions of the Main Lease and this
Sublease. Any Alterations so consented to shall be performed by Sublessee, at
its sole cost and expense, in accordance with the applicable provisions of this
Sublease and the Main Lease.
8. Supplementing Sections 10.04 and 10.05 of the Main Lease, Sublessee
shall, at its sole cost and expense, obtain and maintain in full force and
effect during the Term, (i) a policy of fire and extended coverage insurance
insuring the Leasehold Improvements, Sublessee's Property and other personal
property in the Premises against loss of damage by fire or other casualty, in an
amount equal to the full replacement value thereof, and (ii) a policy of
comprehensive/commercial general public liability and property damage insurance
with broad form contractual liability endorsement, insuring against loss of
life, bodily injury and/or property damage with respect to the Premises and the
business operated by Sublessee in the Premises, with limits of liability of not
less than $3,000,000 for combined single limit, bodily injury and property
damage liability or such greater amount as may be required by Landlord or
Sublessor from time to time. All insurance required to be carried by Sublessee
hereunder shall be effected under valid and enforceable policies issued by
reputable solvent insurers with a rating by A.M. Best of not less than "A"-X,
licensed and admitted to do business in the State of New York, and shall
otherwise conform to the applicable provisions of the Main Lease and shall name
Landlord, Sublessor (and any other parties required to be named under the Main
Lease) as additional insureds. Evidence of such insurance, in form acceptable to
Sublessor, shall be delivered to Sublessor prior to the Commencement Date.
9. Sublessee hereby assumes all risk of loss or physical damage to its
property occurring as a result of fire or other casualty or theft, and Sublessee
hereby releases and waives all right of recovery for loss or damage to property
resulting from fire or other casualty or theft against Sublessor or anyone
claiming through or under Sublessor by way of subrogation or otherwise.
10. Neither Sublessor nor any agent, representative or employee of
Sublessor has made any representations, agreements or promises with respect to
the Building or the Premises or the use thereof, other than those expressly set
forth in this Sublease, and no rights are to be deemed acquired by Sublessee, by
implication or otherwise, except those expressly granted herein. This Sublease
contains the entire agreement between Sublessor and Sublessee with respect to
the Premises, and all prior negotiations and agreements are merged in this
Sublease. Any agreement made between Sublessor and Sublessee shall
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be ineffective to change, modify, waive, release, discharge, terminate or effect
an abandonment or surrender of this Sublease, in whole or in part, unless such
agreement is in writing and signed by both parties and consented to by Landlord
if such consent is required by the Main Lease.
11. In the event that Sublessee shall default in the performance of any
monetary obligations under this Sublease and the same is not cured within three
(3) Business Days after written notice thereof from Sublessor, or in the event
that Sublessee shall default in the performance of any non-monetary obligations
under this Sublease or any of the terms, covenants and conditions on the
tenant's part to be performed under the Main Lease and the same is not cured
within the earlier to occur of (a) twenty (20) days after receipt of written
notice thereof from Sublessor or (b) the expiration of one-half (1/2) the grace
or cure period afforded Sublessor under the Main Lease (if such non-monetary
default under this Sublease is a violation of a provision of the Main Lease that
has been incorporated by reference into this Sublease), then Sublessor shall
have the same rights and remedies with respect to such default as are given to
Landlord under the Main Lease with respect to defaults by the tenant under the
Main Lease, all with the same force and effect as though the provisions of the
Main Lease with respect to defaults and the rights and remedies of Landlord
thereunder in the event thereof were set forth at length herein. If Sublessee
shall default in the performance of any of Sublessee's obligations under this
Sublease or under the provisions of the Main Lease, and such default shall
continue beyond any grace period provided for in this Sublease, Sublessor,
without thereby waiving such default, may, at Sublessor's option, perform the
same for the account and at the expense of Sublessee. If Sublessor makes any
expenditures or incurs any obligations for the payment of money, including,
without limitation, attorney's fees and/or other professional fees and/or
expenses, in instituting, prosecuting or defending any action or proceeding, by
reason of any default of Sublessee under this Sublease, such sums paid or
obligations incurred, with interest thereon at an annual rate equal to the
lesser of (i) two percent (2%) plus the "prime" or "base" interest rate
announced by Citibank, N.A., New York, New York (or any successor thereto) from
time to time or (ii) the maximum rate permitted by law, shall be deemed to be
Additional Sublease Rent and shall be paid by Sublessee to Sublessor on demand.
12. Neither Sublessor nor its shareholders, partners, officers, directors,
agents, representatives or employees, contractors, or licensees shall be liable
to Sublessee, its agents, representatives, employees, contractors or licensees,
and Sublessee shall indemnify, defend and hold harmless Sublessor, its
shareholders, partners, officers, directors, agents, representatives and
employees and Landlord (collectively, the "Indemnified Parties," and each
individually an "Indemnified Party") from and against any and all Losses
incurred in connection with or arising from any injury to Sublessee or to any
other person or for any damage to the Premises or for any damage to, or loss (by
theft or otherwise) of, any of Sublessee's Property and/or of the property of
any other person, irrespective of the cause of such injury, damage or loss other
than Sublessor's gross negligence or willful misconduct. Sublessee shall
indemnify, defend and hold harmless the Indemnified Parties from and against any
and all Losses incurred in connection with or arising from (a) any default by
Sublessee in the observance or performance of any of the terms, covenants or
conditions of this Sublease and/or the Main Lease on Sublessee's part to be
observed or performed, or (b) the use or occupancy or manner of use or occupancy
of the Premises by Sublessee or any person claiming by, through or under
Sublessee, or (c) the condition of the Premises, or (d) any acts, omissions,
carelessness, negligence or reckless or willful misconduct of Sublessee or any
such person, or the contractors, agents, representatives, employees, servants,
visitors or licensees of Sublessee or any such person, in or about the Premises
or the Building either prior to, during, or after the expiration of the Term of
this Sublease. If any action or proceeding shall be brought against any
Indemnified Party hereunder by reason of any such claim, Sublessee, upon notice
from Sublessor or such other Indemnified Party, agrees to resist or defend such
action or proceeding and to employ counsel therefor reasonably satisfactory to
Sublessor. Sublessee shall pay to Sublessor or the applicable Indemnified Party
on demand all sums which may be owing to Sublessor or such other Indemnified
Party hereunder by reason of the provisions of this Paragraph 12. Sublessee's
obligations under this Paragraph 12 shall survive the termination of this
Sublease. All amounts payable to Sublessor or Landlord under this Paragraph 12
shall constitute "Rent" under this Sublease.
13. Any notice, demand or communication which, under the terms of this
Sublease or under any statute or municipal regulation (unless provided to the
contrary in such statute or regulation), must or may be given by the parties
hereto, may also be given on behalf of such party by its counsel and shall be
effective only if in writing and given or made by personal delivery on Business
Days between the hours of 9:00 a.m. and 5:00 p.m. or by mailing the same by
registered or certified mail, postage prepaid, return receipt requested, or by
reliable overnight courier (such as Federal Express) with all charges prepaid
and delivery receipted for, addressed as follows: if to Sublessee, at its
address as set forth on page 1 hereof, and in each instance, with a copy to:
Attention: , and, if
to Sublessor, at its address set forth on page 1 hereof, marked "Sublease
Notice", Attention: Vice President for Real Estate. Either party, however, may
designate a new or other address or person to which such notice, demand or
communication shall thereafter be
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given, made or mailed. Any notices, demands or communications given hereunder
shall be deemed delivered on the date of such personal delivery or on the third
(3rd) Business Day after such mailing.
14. In the event that Sublessee shall require overtime heating, ventilating
or air conditioning, or cleaning in excess of that normally provided by
Landlord, or any other service for which Landlord may impose a separate charge,
Sublessee shall notify Landlord directly and shall request Landlord to xxxx
Sublessee directly for any charges therefor. If Landlord fails to respond to
Sublessee, Sublessor shall, at Sublessee's cost, make such request to Landlord
on Sublessee's behalf. If such charges shall be billed by Landlord to Sublessor,
Sublessee shall reimburse Sublessor for the full amount of the charges made by
Landlord for providing such services, such reimbursement to be paid on demand.
All amounts to be so reimbursed to Sublessor shall constitute "Rent" under this
Sublease.
15. Sublessee acknowledges that it has received and reviewed a copy of the
Main Lease.
16. Sublessee hereby waives the right to interpose a counterclaim in any
summary proceeding instituted to remove Sublessee from the Premises or in any
action instituted for unpaid Rent under this Sublease, except any counterclaim
which would be waived if not so brought.
17. Neither this Sublease nor the term and estate hereby granted nor any
interest in the Premises shall be assigned, mortgaged, pledged, encumbered or
otherwise transferred by Sublessee, by operation of law or otherwise, and
neither the Premises, nor any part hereof, shall be sublet or used or occupied,
or utilized for desk space or for mailing privileges, by any one other than
Sublessee without the prior written consent of Sublessor in each instance,
provided that the provisions of the Main Lease with respect to a proposed
subletting shall be complied with and subject to the rights of Landlord with
respect thereto, and further provided that the provisions of Sections 8.05, 8.06
and 8.07 of the Main Lease shall be applicable to such subletting as between
Sublessor and Sublessee so that Sublessor shall have the same rights given to
Landlord thereunder with respect to such subletting (including, without
limitation, the right to collect from Sublessee, as Additional Rent, all of any
rents, additional charges or other consideration payable to Sublessee by its
sublessee which is in excess of the proportionate share of Fixed Rent and
Additional Rent payable in accordance with this Sublease accruing during the
term of such sublease in respect of the subleased portion of the Premises
pursuant to and in accordance with the terms of Section 8.07 of the Main Lease).
18. Sublessee shall pay directly to the City of New York all occupancy and
rent taxes which may be payable by Sublessee with respect to Rent and shall pay
directly to the appropriate taxing authority any and all other taxes the payment
of which shall be imposed directly on the occupant of the Premises.
19. In the event of and upon the termination or cancellation of the Main
Lease pursuant to the terms and provisions thereof, this Sublease shall
automatically cease and terminate.
20. Sublessor and Sublessee represent and warrant each to the other that
the party making such representation has not (a) dealt with any broker, finder
or similar person who could be entitled to a commission, fee or other
compensation in connection with the consummation of this Sublease, or (b) held
any conversations or prior negotiations with any broker, finder or similar
person concerning the renting of the Premises to Sublessee which would entitle
such broker, finder or person to receive a commission, fee or other compensation
in connection with this Sublease. Each party shall indemnify, defend and hold
the other harmless from and against any and all claims for a commission, fee or
other compensation arising from a breach of the foregoing warranty. The
provisions of this Paragraph 20 shall survive the termination of this Sublease.
21. Reference in this Sublease to "termination" of this Sublease includes
expiration or earlier termination of the term hereof or cancellation of this
Sublease pursuant to any of the provisions of this Sublease or pursuant to law.
Upon the termination of this Sublease, the term and estate granted by this
Sublease shall end at noon on the date of termination as if such time and date
were the time and date of expiration of the Term hereof, and neither party shall
have any further obligation or liability to the other after such termination,
except (i) as shall be expressly provided for in this Sublease, and (ii) for
such obligations as by their nature or under the circumstances can only be, or
by the provisions of this Sublease, may be, performed after such termination
and, in any event, unless otherwise expressly provided in this Sublease any
liability for a payment which shall have accrued to or with respect to any
period ending at the time of such termination shall survive the termination of
this Sublease.
22. Each right and remedy of Sublessor provided for in this Sublease shall
be cumulative and shall be in addition to every other right and remedy provided
for in this Sublease or now or hereafter existing at law or in equity or by
statute or otherwise.
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23. The terms, covenants and conditions contained in this Sublease shall
bind and inure to the benefit of Sublessor and Sublessee and their respective
successors and assigns, except that no violation of the provisions of Paragraph
17 hereof shall operate to vest any rights in any successor or assignee of
Sublessee. It is understood and agreed that the obligations of Sublessor under
this Sublease shall not be binding upon Sublessor with respect to any period
subsequent to the transfer of its interest in the Main Lease, and that in the
event of such transfer said obligations shall be binding upon the transferee of
Sublessor's interest as tenant under the Main Lease, but only with respect to
the period commencing on the date of such transfer and ending on the date of a
subsequent transfer thereof.
24. If any term, covenant, condition or provision of this Sublease, or the
application thereof to any circumstance or to any person, firm or corporation,
shall be invalid or unenforceable to any extent, the remaining terms, covenants,
conditions and provisions of this Sublease, or the application thereof to any
circumstances or to any person, firm or corporation, other than those as to
which any term, covenant, condition or provision is held invalid or
unenforceable, shall not be affected thereby, and each remaining term, covenant,
condition and provision of this Sublease shall be valid and shall be enforceable
to the fullest extent permitted by law.
25. This Sublease shall not be binding on Sublessor or Sublessee until it
has been executed by both parties and a copy thereof delivered to each party.
26. If any transaction or event shall occur which would result in Sublessee
no longer being controlled by, under common control with or in control of
Sublessor, as such terms are defined in Section 8.03 of the Main Lease, then
this Sublease shall become expressly conditioned on the receipt of the written
consent of Landlord ("Landlord's Consent") to this Sublease. In the event
Landlord's Consent is not received within thirty (30) days following the
occurrence of such transaction or event then the Term of this Sublease shall
automatically expire on the 31st day. Upon the redelivery of possession of the
Premises to Sublessor and the return of any payments theretofore made by
Sublessee in respect of Fixed Rent or Sublease Additional Rent, neither party
shall have any further rights or obligations under this Sublease. With respect
to this Sublease, Sublessee shall cooperate in good faith with Sublessor in
obtaining Landlord's Consent and shall comply with any reasonable request made
of Sublessee by Sublessor or Landlord in connection with the procurement of
Landlord's Consent. With respect to this Sublease, Sublessor shall not be
obligated to make any payment, relinquish any right or increase its obligations
under the Main Lease in order to obtain Landlord's Consent.
27. During the Term of this Sublease, Sublessor shall promptly give to
Sublessee copies of any and all notices, including notices of default, of any
kind or nature given to or received from Landlord with respect to the Premises
or this Sublease.
28. Sublessor hereby represents and warrants to Sublessee as follows:
(a) The Main Lease is in full force and effect and Sublessor has
received no notice from Landlord that a default presently exists under the
Main Lease;
(b) The copy of the Main Lease attached hereto is a true and complete
copy of the Main Lease and all amendments thereto; and
(c) The current term of the Main Lease expires on December 31, 2004.
29. Sublessor agrees that, during the Term of this Sublease, Sublessor
shall not voluntarily cause the termination of the Main Lease, or take any
action which would cause the Main Lease to be canceled, terminated, forfeited or
surrendered.
30. If at anytime during the Term of this Sublease, Sublessor terminates
its Purchase and Supply Agreement, dated , 199 , with Sublessee and
does not agree to continue to supply products for resale at the Premises,
Sublessee shall have the right at any time thereafter to terminate this Sublease
upon ninety (90) days' prior written notice to Sublessor.
31. Either party shall, without charge, at any time hereafter, within
twenty (20) Business Days after receipt of written request from the other,
certify by written instrument, duly executed and acknowledged, to any ground
lessee, mortgagee or purchaser, or assignee or sublessee of Sublessee permitted
under the provisions of this Sublease, the following: (a) whether this Sublease
has been supplemented or amended, and if so, the substance and manner of such
supplement or amendment; (b) the existence of any default under this Sublease as
to which such party is aware on the part of the nonexecuting party, and, if so,
a description of such default; (c) the Commencement Date and the Expiration Date
of this Sublease; (d) Any other factual matters specifically concerning this
Sublease as may reasonably be so requested. Any such certificate may be relied
upon by the addressee thereof and shall be binding upon the certifying party as
against such addressee.
32. In the event either party hereto brings or commences legal proceedings
to enforce any of the terms of this Sublease, the successful party in such
action shall then be entitled to receive and shall receive from the other of
said parties, in every
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such action commenced, a reasonable sum as attorneys' fees and costs, to be
fixed by the court in the same action, provided that such sum shall be based
solely on reimbursement for payment by the other party calculated at standard
hourly rates and not upon any recovery or award constituting a percentage or
"contingency" fee.
33. To the extent permitted under the Main Lease, Sublessee may insure for
the amount of any insurance required to be carried under this Sublease by
Sublessee, under a blanket policy or policies, covering other liabilities of
Sublessee and its subsidiaries, controlling or affiliated corporation.
34. To the fullest extent permitted by the Main Lease, Sublessor hereby
waives, releases and relinquishes any and all liens upon and rights of
distraint, levy, attachment or recourse to (whether arising by virtue of
statute, common law or otherwise) the trade fixtures, furnishings, signs,
equipment, machinery, cash registers, point of sale terminals, inventory and
personal property in the Premises. Although the foregoing waiver, release and
relinquishment shall be self-operative without the necessity for any further
instrument or document, Sublessor hereby agrees to furnish, at Sublessee's sole
cost and expense, to Sublessee or any lessor, lender, vendor or other supplier
under any lease, conditional sale, chattel mortgage or other security
arrangement, any consignor, any holder of reserved title or any holder of a
security interest, upon written request from time to time, waivers of
Sublessor's liens upon and right to distraint, levy, attachment or recourse with
respect thereto and exempting the same from distraint, levy, attachment or
recourse.
35. This Sublease shall be governed and construed in accordance with the
laws of the State of New York.
36. This Sublease shall be construed without regard to any presumption or
other rule requiring construction against the party causing it to be drafted,
both parties having been represented by counsel and both having contributed to
the final drafting of this Sublease.
IN WITNESS WHEREOF, Sublessor and Sublessee have duly executed this
Sublease as of the day and year first above written.
SUBLESSOR:
REVLON CONSUMER PRODUCTS CORPORATION
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By:
Title:
SUBLESSEE:
THE COSMETIC CENTER, INC.
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By:
Title:
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