AMENDED AND RESTATED LEASE ASSIGNMENT
AMENDED AND RESTATED LEASE ASSIGNMENT (this "Assignment") made as of this
11th day of February, 1999, by and between CYGNE DESIGNS, INC., a Delaware
corporation, having an office at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Assignor") and ONSITE VENTURES, LLC, a Delaware limited liability company,
having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Assignee").
WITNESSETH:
WHEREAS, X.X. Xxxxx Operating Partnership, L.P. ("Landlord"),
successor-in-interest to 0000 Xxxxxxxx LLC, successor in interest to Nineteen
New York Properties Limited Partnership, and Assignor have heretofore entered
into an Agreement of Lease, dated as of August 16, 1991 (the "Original Lease")
as the same has been heretofore amended, split and assigned only as described in
Schedule A attached hereto (said lease, as so amended, the "Lease");
WHEREAS, numerous of the amendments of the Original Lease and other related
documents constituting a part of the Lease are no longer effective as between
Landlord and Assignor so that only the Lease is effective as of the date hereof;
WHEREAS, numerous of the amendments of the Original Lease constituting a
part of the Lease added and removed various additional space in the building,
however, all of such additional spaces are no longer demised to Assignor and the
entire second (2"") floor and the second (2"") floor mezzanine (collectively,
the "Premises") located in the building known as 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx (the "Building"), are the only spaces currently demised to Assignor upon
and subject to all of the terms, covenants and conditions of the Lease; and
WHEREAS, Assignor desires to assign the Lease and all of its rights
thereunder to Assignee, and Assignee is willing to accept the assignment and to
assume Assignor's obligations under the Lease upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter contained, it is mutually covenanted and agreed as follows:
1. ASSIGNMENT OF LEASE
A. Assignor hereby assigns to Assignee all of Assignor's right, title and
interest in and to the Lease and the term and estate thereby granted to Assignee
as of the date (the "Effective Date") which shall be the later to occur of (i)
March 1, 1999 (or at the option of Assignee, such earlier date as Assignor has
substantially vacated possession of the Premises) and (ii) the date that
Assignor and Assignee shall receive fully executed counterpart originals of
Landlord's unconditional consent to this Assignment in the form of Schedule B
attached hereto with such immaterial modifications
thereof as are reasonably satisfactory to Assignor and Assignee or such other
form of consent as is reasonably satisfactory to Assignor and Assignee (the
"Consent"). Assignee hereby assigns the Lease to Assignee as of the Effective
Date and Assignee agrees to perform all of the terms, covenants, conditions and
agreements contained in the Lease to be performed by Assignor thereunder on and
after the Effective Date.
B. On or within two (2) business days after the Effective Date, all
payments of fixed rent or additional rent under the Lease shall be prorated and
adjusted as of the date which is the later of March 15, 1999 or fifteen (15)
days after the date on which Assignor and Assignee have received fully executed
counterpart originals of the Consent.
C. If the Consent is not received by the date which is thirty (30) days
after Assignor has submitted to Landlord a request for Landlord's consent to
this Assignment in accordance with the Lease, or if at any time Landlord
indicates in writing that it is unwilling to issue the Consent, then Assignor or
Assignee shall have the right to terminate this Agreement and any sums
theretofore paid by Assignee to Assignor shall be immediately returned to
Assignee whereupon such termination shall be effective.
D. On the Effective Date, Assignor shall deliver vacant broom clean
possession of the Premises to Assignee with the Furniture (hereinafter defined)
in the Premises, with the Premises and the Furniture in their "as is" condition
on the date hereof, subject to reasonable wear and tear after the date hereof
and with no tenants or occupants in the Premises.
2. WARRANTIES
A. Assignee warrants and represents that it is a duly formed and validly
existing limited liability company in good standing under the laws of the State
of Delaware and has full power and authority to execute this Assignment and to
perform its obligations set forth hereunder.
B. Assignor warrants and represents to Assignee that:
(i) It is a duly formed and validly existing corporation in good standing
under the laws of the State of Delaware and has full power and authority to
execute this Assignment and perform its obligations set forth hereunder.
(ii) The Lease is in full force and effect and the Lease has not been
assigned, modified, supplemented, subleased, or amended except as set forth in
this Assignment and Schedule A hereto.
(iii) True, accurate and complete copies of the Lease has been delivered to
Assignee.
(iv) As of the date hereof, the Premises demised to Assignor under the
Lease consists only of the second (2nd) floor and the second (2nd) floor
mezzanine and all of the other spaces demised under the Lease are no longer
demised to Assignor.
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(v) The Lease represents the entire agreement between Landlord and Assignor
in effect on the date hereof with respect to the Premises.
(vi) To the actual knowledge of Assignor, no default exists by Landlord or
Assignor under the Lease and no event has occurred which with the giving of
notice and/or the expiration of any applicable grace period would constitute a
default by Landlord or Assignor under the Lease.
(vii) No written notice of default has been given by Landlord or Assignor
under the Lease which remains uncured.
(viii) All rents, additional rents and other sums now due and payable under
the Lease have been paid by Assignor to Landlord. All rents, additional rents
and other sums payable under the Lease for the period through and including the
Effective Date shall be timely paid by Assignor to Landlord when due and copies
of the invoices and checks with respect thereto shall be sent to Assignee when
such payments are made to Landlord. Assignor has caused to be delivered to
Assignee true, accurate and complete copies of the invoices for all rents,
additional rents and other sums payable under the Lease during the six (6)
months preceding the date hereof and the most recent annual reconciliations as
to real estate taxes and operating expenses under the Lease.
(ix) To the actual knowledge of Assignor, there is no asbestos, asbestos
containing material or hazardous material in the Premises or the walls,
ceilings, floors of the Premises.
(x) Assignor shall grant Assignee and its architects, designers,
contractors, agents and employees reasonable access to the Premises on
reasonable telephone notice to Assignor from and after the date hereof for all
reasonable purposes.
(xi) The Rent (as defined in the Lease) per annum is: (A) for the period
from April 26, 1996 through and including April 25, 1999, $739,484.20, (B) the
period commencing on April 26, 1999 through and including April 25,2002,
$843,539.20, and (C) for the period commencing April 26, 2002 through and
including July 31, 2010, $982,279.20.
3. INDEMNITY
A. Assignor agrees to indemnify, defend and hold harmless Assignee, its
successors and assigns, from and against any and all claims, liabilities and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) of any nature whatsoever suffered or incurred by Assignee, its
successors and assigns, arising out of: (i) any injuries to persons or damage to
property which occurred in, on or about the Premises, arising out of the acts or
omissions of Assignor, its agents, employees, contractors, invitees or
licensees, or any party acting by, through or under such parties which shall
have occurred prior to the Effective Date; (ii) any breach or default by
Assignor, its agents, contractors, invitees, licensees or employees of any
covenant, agreement term, provision or condition of the Lease which shall have
occurred prior to the Effective Date (iii) any work done in or to the Premises
prior to the Effective Date; (iv) any act, omission or negligence of Assignor,
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its agents, contractors, invitees, licensees or employees, which shall have
occurred prior to the Effective Date; or (v) the conduct of Assignor's business
in, or use and occupancy of, the Premises by Assignor prior to the Effective
Date. If any action or proceeding is brought against Assignee by reason of any
such claim, Assignor, upon written notice from Assignee, shall, at Assignor's
sole cost and expense, resist or defend such action or proceeding using counsel
approved by Assignee, which approval shall not be unreasonably withheld or
delayed. The provisions of this paragraph shall survive the expiration or
earlier termination of the term of the Lease.
B. Assignee agrees to indemnify, defend and hold harmless Assignor, its
successors and assigns, from and against any and all claims, liabilities and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) of any nature whatsoever suffered or incurred by Assignor, its
successors or assigns, arising out of: (i) any injuries to persons or damage to
property occurring in, on or about the Premises, arising out of the acts or
omissions of Assignee, its agents, contractors, employees, invitees or
licensees, or any party acting by, through or under such parties which shall
occur on or after the Effective Date or as a result of any access to the
Premises under Paragraph 2(b)(x); (ii) any breach or default by Assignee, its
agents, contractors, employees, invitees or licensees of any covenant,
agreement, term, provision or condition of the Lease which shall occur on or
after the Effective Date; (iii) any work done in or to the Premises on or after
the Effective Date; (iv) any act, omission or negligence of Assignee, its
agents, contractors, employees, invitees or licensees which shall occur on or
after the Effective Date; or (v) the conduct of Assignee's business in, or use
and occupancy of, the Premises by Assignee on or after the Effective Date. If
any action or proceeding is brought against Assignor by reason of any such
claim, Assignee, upon written notice from Assignor, shall, at Assignee's sole
cost and expense, resist or defend such action or proceeding as to such party
using counsel approved by Assignor, which approval shall not be unreasonably
withheld or delayed. The provisions of this paragraph shall survive the
expiration or earlier termination of the term of the Lease.
4. FIXTURES AND EQUIPMENT
Assignor shall remove from the Premises all computers; fax machines;
photocopying equipment; cutting, sewing and pressing equipment; thirty (30)
filing cabinet, all furniture and cabinets located in the office of Xxxxxxx
Xxxxxx; and the furniture expressly listed on Schedule C attached hereto and
incorporated herein by this reference; but no other furniture, fixtures or
equipment. All other furniture, fixtures and equipment in the Premises on the
Effective Date, including without limitation, the telephone system, telephone
units and all related equipment (collectively, the "Furniture") are hereby
transferred and conveyed to Assignee without consideration as of the Effective
Date and thereafter shall be the property of Assignee. Assignor and Assignee
shall share any sales or other taxes due with respect to the transfer of the
Furniture to Assignee.
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5. PERCENTAGE RENT
No person having an interest in the possession, use, occupancy or
utilization of the Premises shall enter into any lease, sublease, license,
concession or other agreement for use, occupancy or utilization of such space
which provides for a rental or other payment for such use, occupancy or
utilization based in whole or in part on the income or profits derived by any
person from the property so leased, used, occupied or utilized other than an
amount based on a fixed percentage or percentages of gross receipts or sales,
and that any such purported lease, sublease, concession or other agreement shall
be absolutely void and ineffective ab initio.
6. SECURITY DEPOSIT
On or within two (2) business days after the Effective Date, as to which
date time is of the essence, Assignee shall pay to Assignor, by certified check,
an amount equal to the lesser of the cash security deposit actually held by
Landlord pursuant to the Lease as set forth in the Consent or $250,000. As of
the Effective Date, Assignor assigns all of Assignor's interest in the security
deposit then held by Landlord under the Lease to Assignee.
7. BROKER
A. Assignor covenants, represents and warrants that it has had no dealings
or communications with any broker or agent in connection with this matter except
for Insignia/Xxxxxx X. Xxxxxx Co., Inc. ("Insignia"), and Xxxxxxx & Wakefield,
Inc. ("C & W"). Assignor agrees to indemnify and hold Assignee harmless from and
against any and all cost, expense (including reasonable attorneys' fees) and
liability for any compensation, commissions or charges claimed by Insignia, or
any other broker or agent, claiming to have dealt exclusively with Assignor with
respect to this matter. Assignor agrees to pay any commission due to Insignia.
B. Assignee covenants, represents and warrants that it has had no dealings
or communications with any broker or agent in connection with this matter except
for Insignia and C & W. Assignee agrees to indemnify and hold Assignor harmless
from and against any and all cost, expense (including reasonable attorneys'
fees) and liability for any compensation, commissions or charges claimed by any
other broker or agent, other than Insignia, claiming to have dealt exclusively
with Assignee with respect to this matter. Assignee agrees to pay any commission
due to C&W.
8. NOTICES
A. All notices required or desired to be given under this Lease Assignment
shall be by registered or certified mail, return receipt requested, to the
following addresses of the parties:
Assignor: Cygne Designs, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attention: Chief Financial Officer
With a copy to: Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Assignee: Onsite Ventures LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxx
With a copy to: Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Notice shall be given to any other address which Assignor or Assignee shall
specify by notice given in the same form as prescribed herein.
B. The date of the giving of a notice shall be deemed to be, unless
otherwise specifically provided herein to the contrary, the date when the same
is mailed as herein provided.
9. MISCELLANEOUS
A. All capitalized terms used but not defined herein shall have the
meanings set forth in the Lease. In the event of a conflict between the original
terms of the Lease and the terms of this Assignment, the terms of this
Assignment shall control.
B. This Assignment shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns. This Assignment
may not be amended or modified orally.
C. If any term, provision, condition or covenant of this Assignment or the
application thereof to any party or circumstances shall, to any extent, be held
invalid or unenforceable, the remainder of this Assignment, or the application
of such term, provision, condition or covenant to persons or circumstances other
than those as to whom or which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Assignment shall be valid
and enforceable to the fullest extent permitted by law.
D. Headings in this Assignment are solely for the convenience of the
parties and are not a part of this Assignment.
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E. This Assignment may be executed in several counterparts, and all so
executed shall constitute one Assignment binding on all parties hereto,
notwithstanding that all parties are not signatories to the original or the same
counterpart.
F. This Assignment shall be governed by and construed in accordance with
the laws of the State of New York.
G. The representations and warranties contained in this Agreement shall
survive the Effective Date.
H. This Assignment amends and restates a certain Lease Assignment executed
by Assignor and Assignee dated as of February 11, 1999.
IN WITNESS WHEREOF, the parties hereto have respectively executed this
Lease Assignment as of the day and year first above written.
CYGNE DESIGNS, INC., Assignor
By: /s/ Xxx X. Xxxxx
------------------------------------
Xxx X. Xxxxx
Vice President
ONSITE VENTURES, LLC, Assignee
By: /s/ Xxxxx Xxxxx
------------------------------------
Xxxxx Xxxxx
President and Chief Operating Officer
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 1st day of March, 1999, before me personally came Xxx X. Xxxxx, to
me known, being duly sworn by me, did depose and say that he resides at 0000
Xxxxxxxx, Xxx Xxxx, that he is the vice president of CYGNE DESIGNS, INC., a
Delaware corporation, the corporation mentioned in, and which executed the
foregoing instrument and that he signed his name thereto by order of the Board
of Directors of said corporation.
[NOTARY STAMP]
M. XXXXXX XXXXXXX XX.
Notary Public, State of New York
No. 02MA5047468 /s/ M. Xxxxxx Xxxxxxx, Xx.
Qualified in New York County ------------------------------
Commission Expires Aug. 7, 0000 Xxxxxx Xxxxxx
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On this___ day of February, 1999, before me personally came Xxxxx Xxxxx, to
me known, being duly sworn by me, did depose and say that he resides at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, that he is the Chief Operating Officer of
Onsite Ventures, LLC, a Delaware limited liability company, the company
mentioned in, and which executed the foregoing instrument and that he signed his
name thereto by order of the Managers of said company.
------------------------------
Notary Public
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SCHEDULE A
1. Agreement of Lease between Nineteen New York Properties Limited Partnership
("Original Landlord") and Assignor dated August 7, 1991 with respect to the
Premises ("Original Lease").
2. Second Amendment of Lease between Original Landlord and Assignor dated May
31, 1993 with respect to a portion of the sixth (6th) floor of the Building (the
"Second Amendment").
3. Third Amendment of Lease between Original Landlord and Assignor dated
December 1, 1993 terminating the First License Agreement and the Second License
Agreement and adding certain additional premises on the ninth (9th) floor of the
Building (the "Third Amendment").
4. Fourth Amendment of Lease between Original Landlord and Assignor dated June
24, 1994 (the "Fourth Amendment") extending the term of the Lease with respect
to the Premises and the space demised by the Second Amendment (the "Fourth
Amendment").
5. Fifth Amendment of Lease between Original Landlord and Assignor dated March
31, 1995 (the "Fifth Amendment") terminating the Third Amendment and adding
certain additional premises located on the ninth (9th) floor of the Building
(the "Fifth Amendment").
6. Letter Agreement between Original Landlord and Assignor dated May 17, 1995
adjusting the security deposit under the Lease and amending the Fifth Amendment
(the "Second Letter Agreement").
7. Sixth Amendment and Severance of Lease between 1372 Broadway, LLC (the
"Intervening Landlord") and Assignor dated September 20, 1996 (the "Sixth
Amendment") severing the space demised by the Second Amendment and the Fifth
Amendment, as amended by the Second Letter Agreement, into a separate lease (the
"New Lease") such that the premises demised under the Original Lease as amended
by the Fourth Amendment and Paragraph 3(g) of the Fifth Amendment consists only
of the Premises.
8. Letter Agreement between Intervening Landlord, Assignor and AnnTaylor, Inc.
dated September 20, 1996 consenting to the Sixth Amendment and the Assignment to
AnnTaylor executed pursuant to the Sixth Amendment (the "Fourth Letter
Agreement").
9. Partial Surrender Agreement between Intervening Landlord and Assignor dated
January 31, 1997 (the "Partial Surrender Agreement") terminating the Fifth
Amendment.
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SCHEDULE B
FORM OF CONSENT
THIS CONSENT, dated as of February __, 1999 among CYGNE DESIGNS, INC., a
Delaware corporation, having a place of business at 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (hereinafter called "Assignor"), ONSITE VENTURES, LLC. a Delaware
limited liability company having a place of business at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter called "Assignee") and X.X. XXXXX OPERATING
PARTNERSHIP, L.P., a limited partnership having an office do X.X. Xxxxx Realty
Corp., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called
"Landlord"),
WITNESETH:
Pursuant to an Amended and Restated Lease Assignment between Assignor and
Assignee dated February 10, 1999 (the "Assignment"), Assignor has sold,
assigned, transferred and set over unto Assignee all the right, title and
interest of Assignor in and to the Lease (as defined in Scheduled A attached
hereto and made a part hereof) covering premises consisting of the second (2nd)
floor and the second (2nd) floor mezzanine (the "Premises") in the building
known as 0000 Xxxxxxxx (the "Building") in the City, County and State of New
York, and the term and estate granted by the Lease, to have and to hold the same
unto Assignee from the Effective Date (as defined in the Assignment) for all the
rest, residue and remainder of the term of the Lease yet to come and unexpired.
Landlord hereby consents to the foregoing assignment of the Lease by
Assignor to Assignee, upon the following terms and conditions, to each of which
Assignor and Assignee expressly agree:
1. The parties agree that the Premises demised under the Lease as of the
date hereof consist only of the second (2nd) floor and the second (2nd) floor
mezzanine of the Building and that the only documents effective as of the date
hereof and constituting the Lease are: (a) the Original Lease, as defined in
Schedule A (the "Original Lease"), (b) the Fourth Amendment, as defined in
Scheduled A (the "Fourth Amendment"), and (c) Paragraphs 2(a)(iii)(a),
2(b)(x)(a), 2(c)(xi)(b), 2(d) and 2(e) of the Sixth Amendment (as defined in
Schedule A, and together with the Original Lease, the Fourth Amendment and such
provisions of the Sixth Amendment collectively, the "Existing Lease").
2. Pursuant to the Assignment, Assignor assigns to Assignee, effective as
of the Effective Date, all of Assignor's right, title and interest in (a) the
Existing Lease, (b) the security deposit made pursuant to the Existing Lease,
and (c) the rent and additional rent prepaid under the Existing Lease. Assignor
will deliver possession of the Premises to Assignee on the Effective Date.
3. Except as expressly provided in Paragraphs 1 and 11(b) hereof, nothing
herein contained shall be construed to modify, waive, impair or affect any of
the covenants, agreements, terms, provisions or conditions contained in the
Existing Lease, or to waive any breach of Assignor
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in the due keeping, observance or performance thereof; and all provisions of the
Existing Lease are hereby mutually declared to be in full force and effect.
4. Assignee, for Assignee and the successors and assigns of Assignee, has
accepted the assignment contained in the Assignment and hereby recognizes all of
the covenants, agreements, terms, provisions and conditions contained in the
Existing Lease, and has assumed and agreed to pay the rent, additional rent,
damages and all other sums payable by the tenant under the Existing Lease from
and after the Effective Date, and to keep and perform, and to permit no
violation of, each and every covenant, agreement, term, provision and condition
therein set forth on the part and on behalf of the tenant to be kept and
performed under the Existing Lease.
5. This Consent shall not be assignable.
6. This Consent shall not be construed as a consent by Landlord to, or as
permitting, any other or further assignment of the Lease by Assignor or by
Assignee, and no further or other assignment of the Lease, in whole or in part,
shall be made by Assignor or Assignee or the successors and assigns of either
without the written consent of Landlord first had and obtained in every case.
7. Assignor and Assignee agree that the provisions of Article 12 of the
Original Lease, as amended by the Fourth Amendment shall, notwithstanding the
Assignment, continue to be binding upon Assignor and Assignee with respect to
all future assignments and transfers with the same effect as if Assignee had
been the tenant named in the Existing Lease.
8. Assignor and Assignee shall be and remain jointly and severally liable
and responsible at all times during the term of the Existing Lease for the
payment of the fixed rent, additional rent, damages and all other sums payable
by the tenant thereunder, and under and upon all of the covenants, agreements,
terms, provisions and conditions of the Lease on the part and on behalf of the
tenant to be kept and performed. Notwithstanding anything to the contrary
contained in this Consent, Assignor shall not have liability or obligations with
respect to: (a) any amendments, modifications or extensions of the Existing
Lease entered into between Landlord and Assignee after the date hereof unless
Assignor consents thereto in writing or (b) any amendments or modifications of
the Existing Lease contained in Paragraphs 11 (b)(vii) and (viii) of this
Consent.
9. Landlord shall be under no obligation to commence proceedings or exhaust
its remedies against Assignee before proceeding against Assignor, or against
Assignor before proceeding against Assignee, for any redress provided for in the
Existing Lease, this Consent or by law.
10. The obligations of Assignor under the Existing Lease and this Consent
shall not be discharged or otherwise affected by reason of the giving or
withholding of any consent or approval for which provision is made in the
Existing Lease (provided that Landlord complies with the
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provisions of the Existing Lease and this Consent) or by reason of any amendment
or modification of the Lease hereafter entered into by Landlord and Assignee
with the consent of Assignor.
11. (a) Assignor hereby represents and warrants to Landlord (a) that
Assignor is engaged in a business or activity, and the Premises will be used in
a manner, which (i) is in keeping with the then standards of the Building, (ii)
is limited to the use of the Premises for the uses permitted under the Lease,
and (iii) will not violate any negative covenant as to use contained in any
other lease in the Building and (b) that Assignee is a reputable person or
entity of good character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable proof
thereof
(b) Landlord represents, warrants and agrees to and only for the benefit of
Assignee that:
(i) The Existing Lease is in full force and effect and neither the Existing
Lease nor the Lease have been assigned, modified, supplemented, subleased or
amended except as set forth in Schedule A hereto.
(ii) As of the date hereof, the Premises demised to Assignor under the
Existing Lease consist only of the second (2nd) floor and the second (2nd) floor
mezzanine and all of the other spaces demised under the Lease are no longer
demised to Assignor.
(iii) To the best of Landlord's knowledge after no independent inquiry or
investigation, the Existing Lease represents the entire agreement between
Landlord and Assignor in effect on the date hereof
(iv) To the best of Landlord's knowledge after no independent inquiry or
investigation, no default exists by Assignor under the Existing Lease and no
event has occurred which with the giving of notice and/or the expiration of any
applicable grace period would constitute a default by Assignor under the
Existing Lease.
(v) No written notice of default has been given by Landlord or Assignor
under the Existing Lease which remains uncured.
(vi) Landlord represents that there are presently no mortgages, ground
leases or other superior leases encumbering the Building.
(vii) Landlord agrees not to unreasonably withhold its consent to
Alterations to be performed by Assignee to prepare the Premises for Assignee's
initial occupancy (provided such Alterations are typical interior office
Alterations which do not affect the structure or the structural elements of the
Building and do not adversely affect the Building's mechanical systems or
services as determined by Landlord in its reasonable discretion), or to any
contractors or sub-contractors performing any such alterations. Provided that
such Alterations are performed subject to and in accordance with the terms of
the Existing Lease, including Article 3, such Alterations may include,
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without limitation, the relocation of the staircase to the second (2nd) floor
mezzanine, the installation of additional electrical risers and/or the
installation of telecommunications wiring from the Premises to the street.
(viii) Landlord agrees that Landlord shall not require restoration by
Assignee: (A) of any Alterations to the Premises made prior to the date hereof,
or (B) of any typical interior office Alterations made after the date hereof by
Assignee as determined by Landlord, in Landlord's reasonable discretion.
Following request by Assignee, Landlord shall notify Assignee if any restoration
shall be required simultaneously with Landlord's giving of consent to any such
proposed Alterations. Notwithstanding the foregoing, if Assignee elects to
expand the existing second (2nd) floor mezzanine then Landlord shall have the
right to require restoration thereof and restoration of related Alterations to
the Building in connection therewith.
(ix) Subject to and in accordance with the terms of the Existing Lease,
Landlord agrees that Assignee may use the Premises for general and
administrative offices and a telecommunications and data center.
(x) The Original Lease is hereby amended to delete the second sentence of
Paragraph 40. Subject to compliance by Assignee with all applicable laws, rules
and codes and compliance by Assignee with the terms of the Existing Lease at
Assignee's sole cost, Landlord confirms that the first sentence of Paragraph 40
of the Original Lease is in full force and effect on the date hereof, provided
and upon the condition that prior to exercising the Mezzanine Expansion Option,
Assignee shall deliver to Landlord an additional Security Deposit in an amount
reasonably determined by Landlord to be equal to the cost of restoring the
mezzanine to its size and condition as of the date hereof and to cure any damage
to the Building in connection therewith, which Security Deposit shall be held
and applied in accordance with the terms of Article 32 of the Existing Lease. In
addition, the third sentence of Article 40 shall be modified to reflect that
Tenant's Preliminary Plans shall be prepared by a structural engineer reasonably
acceptable to Landlord.
(xi) The expiration date of the Existing Lease is July 31, 2010.
(xii) Landlord is presently holding a security deposit in the amount of
$229,516.00 pursuant to the Existing Lease. Notwithstanding the foregoing, if
Landlord acting reasonably shall determine that interest which has accrued on
the security deposit has not been paid to Assignor, then Landlord shall promptly
forward up to $7,000.00 of such interest to Assignor.
12. NOTICES
All notices required or desired to be given under this Agreement shall be
sent by registered or certified mail, return receipt requested. All notices to
Assignee shall be sent to the following address:
Assignee: Onsite Ventures, LLC,
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000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx Xxxxx
All notices to Assignor shall be sent by certified mail, return receipt
requested, to the following address:
Assignor: Cygne Designs, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Financial Officer
Notwithstanding the foregoing, notices hereunder may be sent to any other
address which Assignor or Assignee shall specify by notice given in the same
form as prescribed herein. The date of the giving of a notice shall be deemed to
be, unless otherwise specifically provided herein to the contrary, the date when
the same is mailed as herein provided.
13. This Consent embodies the entire agreement of the parties hereto with
respect to the subject matter of this Consent, and it supersedes any prior
agreements, whether written or oral, with respect to the subject matter of this
Consent. This Consent may be modified only by a written instrument duly executed
by the parties hereto. The terms and provisions of this Consent will inure to
the benefit of, and will be binding upon, the successors, assigns, personal
representatives, heirs, devisees, and legatees of the parties hereto.
14. Assignor and Assignee each agree to indemnify, defend and hold Landlord
harmless from and against any and all loss, liability, damages, costs and
expenses (including reasonable counsel fees and disbursements) resulting from
any claims that may be made against Landlord by any brokers or other persons
claiming a commission or similar compensation in connection with the assignment
of the Existing Lease or the Premises. As between Assignor and Assignee, any
liability arising from this Paragraph shall be allocated as provided in the
Assignment.
15. The Existing Lease as modified by this Consent and all covenants,
agreements, terms and conditions thereof shall remain in full force and effect
and are hereby in all respects ratified and confirmed. Assignor hereby confirms
that Landlord is not in default under any provisions of the Existing Lease, that
there are no presently existing claims, counterclaims or defenses with respect
to the Existing Lease and, to the extent any such claims, counterclaims and/or
defenses may exist or may have existed, Assignor hereby agrees to waive the
same.
16. Simultaneously herewith, Assignor will pay to Landlord's counsel all
reasonable costs and expenses incurred in connection with the preparation and
negotiation of this Consent.
IN WITNESS WHEREOF, this Assignment with Consent has been duly executed by
the parties hereto as of the day and year first above written.
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CYGNE DESIGNS, INC. Assignor
By:
-------------------------------------
Xxxxxxx Xxxxxx
Chairman and Chief Executive Officer
ONSITE VENTURES, LLC, Assignee
By: /s/ Xxxxx Xxxxx
------------------------------------
Xxxxx Xxxxx, President and
Chief Operating Officer
X.X. XXXXX OPERATING PARTNERSHIP, L.P.
By: X.X. Xxxxx Realty Corp., its general partner
By:________________________________
Name: __________________________
Title: _________________________
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SCHEDULE C
ADDITIONAL FURNITURE
AREA CONTENTS TO BE KEPT
---- -------------------
General All art work; 8 rolling racks; Macbeth
light box
Lobby 3 wooden benches from Philippines
Xxx Xxxxx'x Office 5 chairs
Xxx Xxxxx' Office All furniture
Conference Room A One of the 3 conference tables; metal
railings; art work.
Conference Room B Metal railings; art work.
Conference Room C Metal railings; art work.
Secretarial Office across from
Xxxxxxx Xxxxxx'x Office 5 chairs
General Counsel's Office All furniture is owned personally by
General Counsel and will be removed by
him at his own expense
Offices 2 and 3 from Southeast
Corner of Premises All furniture
Accounting Cubicle next to
Manufacturing Conference Room 1 glass desk (broken glass top)
Manufacturing Conference Room Conference table; 11 chairs
Design Storage Room Marble tabletop and base; two
upholstered chairs
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