SECOND MODIFICATION OF LEASE
Second Modification of Lease ("Agreement") made as of the 30th day of
April, 1997 between METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation
having its principal place of business at Xxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Landlord") and XXXX XXXXXXXX FRAGRANCES, INC., a Delaware corporation,
having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant heretofore entered into a certain written
lease dated January 13, 1992, as amended by Modification of Lease dated June 17,
1994 (collectively, the "Lease") wherein and whereby Landlord leased to Tenant,
and Tenant hired from Landlord, those certain premises (the "demised premises")
as shown on the plans annexed to the Lease as "Exhibit A" thereto on the 15th
floor in the building known as 000 Xxxxx Xxxxxx, in the Borough of Manhattan,
City, County and State of New York (the "Building");
WHEREAS, Landlord and Tenant wish to modify the Lease, subject to the
terms and conditions hereinafter set forth, to, inter alia, (i) reduce the
rentable area of the demised premises and (ii) extend the term of the Lease;
WHEREAS, the Lease is in full force and effect; and
WHEREAS, Landlord and Tenant desire to modify the Lease only in the
respects hereinafter stated.
NOW, THEREFORE, in consideration of the premises and the mutual
covenant., hereinafter contained, the parties hereto by these presents do
covenant and agree as follows:
All capitalized terms used herein without definition are used
herein with the meanings assigned to such terms in the Lease, unless the context
otherwise requires.
2. The term of the Lease is hereby extended to October 31, 2002
(the "Extension Period").
3 . Effective November 1, 1997 through and including the end of the
term of this Lease, Tenant's annual rent shall be amended to be Two Hundred
Twenty Thousand Five Hundred Forty Five Dollars ($220,545.00) per annum which
amount shall include the annual cost of electricity supplied by Landlord to the
demised premises on a rent inclusion basis of Sixteen Thousand Nine Hundred
Sixty Five Dollars ($16,965.00) per annum, the "Electric Charge".
Notwithstanding the foregoing, Landlord agrees to waive to the collection of
annual rent, including the Electric Charge [but not additional rent for "Real
Estate Taxes" (Article 35) or "Operating Expenses" (Article 36)] for the months
of November and December, 1997 and January, November and December, 1998. Further
with reference to the Electric Charge, Tenant acknowledges and affirms its
covenant contained in the Lease that its use of electric current in the demised
premises shall not at any time exceed the capacity of any of the electrical
conductors and facilities in or otherwise serving the demised premises and
Tenant shall not, without Landlord's prior written consent in each instance,
connect any major fixtures, appliances or equipment to the Building' electric
distribution system nor make any alteration or addition to the electric system
of the demised premises. In consideration of the foregoing, Landlord agrees that
during the Extension Period the Electric Charge shall not be increased.
4.A. Effective November 1, 1997, Tenant shall vacate and surrender to
Landlord a portion of the demised premises, the "Surrendered Space" (which
Landlord and Tenant acknowledge contains 1,295 rentable square feet) and,
accordingly, from and after November 1, 1997, the demised premises will be as
shown hatched on Exhibit A-1, attached hereto and made a part hereof (which
Exhibit A-1 shall also show the Surrendered Space, cross-hatched). On or before
November 1, 1997, Tenant shall vacate the Surrendered Premises and surrender
same to Landlord and all alterations, installations, additions and improvements
in and to the Surrendered Premises to the intent and purpose that the estate of
Tenant in and to the Surrendered Premises shall be wholly extinguished. Further
with respect to the Surrendered Space, Tenant shall vacate same on or before
November 1, 1997, broom clean with all personal property removed therefrom in
accordance with the terms of this Lease. In addition, Tenant
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hereby covenants that nothing has been done or suffered or will be done or
suffered whereby the estate granted in the Surrendered Space or any part
thereof, or said alterations, installations, additions or improvements, or any
part thereof, have been encumbered in any way whatever; that Tenant has and will
have good right to surrender the same; and that no one other than Tenant has
acquired, or will acquire, through or under Tenant, any right, title or interest
in or to the Surrendered Space or the term or estate thereby granted or in or to
said alterations, installations, additions and improvements or any part thereof.
B. Inasmuch as Tenant currently occupies the demised premises and is
fully aware of the condition thereof, Tenant agrees to accept the demised
premises in the condition which it exists on the first day of the Extension
Period. Further, Tenant understands and agrees that no materials whatsoever are
to be furnished by Landlord and no work whatsoever is to be furnished by
Landlord in connection with the demised premises or any part thereof except that
Landlord agrees, at its sole cost and expense, to demise the demised premises in
accordance with Exhibit A-1 in an expeditious manner.
5. Effective November 1, 1997, Tenant's "Base Tax Year" (Article 35)
shall be amended to be the fiscal tax year of the City of New York commencing
July 1, 1997 and ending June 30, 1998 and Tenant's "Base Operating Period"
(Article 36) shall be amended to be the calendar year commencing January 1, 1998
and Tenant's proportionate share for Real Estate Taxes and Operating Expenses
shall be amended to be "1.662 percent".
6. Tenant represents and warrants to Landlord that it has not dealt
with any real estate agents or brokers in connection with this Agreement other
than The Shorenstein Companies, ("TSC") whose fees, if any, Landlord agrees to
pay and that this Agreement was not brought about or procured through the use or
instrumentality of any other agent or broker. Tenant covenants and agrees to
indemnify and hold Landlord harmless from any and all claims for commissions and
other compensation made by any agent or agents and/or
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broker or brokers, other than TSC, based on any dealings between Tenant and any
agent or agents and/or broker or brokers, together with all costs and expenses
incurred by Landlord in resisting such claims (including, without limitation,
attorneys' fees).
7. Except as modified by this Agreement, the Lease and all the terms,
covenants, conditions, provisions, and agreements thereof are hereby in
all respects ratified, confirmed, and approved.
8. The Lease, as modified by this Agreement contains the entire understanding
between the parties. No other representations, warranties, covenants or
agreements have been made.
9. This Agreement may not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
10. This Agreement shall be binding upon, and inure to the benefit of the
parties hereto, their respective legal representatives, successors and,
except as other-wise provided in the Lease as modified by this Agreement,
their respective assigns.
11. The submission of this Agreement to Tenant shall not be construed as an
offer, nor shall Tenant have any rights with respect hereto, unless and until
Landlord shall execute a copy of this Agreement and deliver the same to Tenant.
IN WITNESS WHEREOF, the parties hereto have respectively executed this
Agreement as of the day and year first above written.
Landlord:
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/
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Tenant:
XXXX XXXXXXXX FRAGRANCE, INC.
By: /s/
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EXHIBIT A-1
[floor plan of demised premises]
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