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FIRST AMENDMENT TO LEASE
BETWEEN
000-000 XXXXXXX XXXXXX LIMITED PARTNERSHIP, LANDLORD
AND
G-lll LEATHER FASHIONS, INC., Tenant
PREMISES:
ENTIRE 34TH AND 35TH FLOORS
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX
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FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment") made as of the 1st day of
July, 2000, by and between 000-000 XXXXXXX XXXXXX LIMITED PARTNERSHIP, a New
York limited partnership, having an office c/o Newmark & Company Real Estate,
Inc. ("Landlord"), and G-lll LEATHER FASHIONS, INC., a New York corporation,
having an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Tenant").
WITNESSETH:
WHEREAS, by Agreement of Lease dated as of June, 1993 (such lease, as the
same may have been or may hereafter be amended, is hereinafter called the
"Lease"), Landlord's predecessor-in-interest, did demise and let unto Tenant and
Tenant did hire and take from Landlord's predecessor-in-interest the entire
thirty-fourth (34th) and thirty-fifth (35th) floors (collectively, the "demised
premises") as more particularly described in the Lease in the building (the
"Building") known by the street address 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx;
WHEREAS, the term of the Lease currently expires on January 31, 2003;
WHEREAS, Tenant desires to extend the term of the Lease and Landlord is
agreeable thereto on the terms and conditions hereinafter set forth; and
WHEREAS, Landlord and Tenant desire to modify and amend the Lease as
hereinafter provided.
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained and other good and valuable consideration, the adequacy and receipt of
which are hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. All capitalized terms used herein shall have the meanings ascribed to
them in the Lease unless otherwise specifically set forth herein to the
contrary.
2. The term of the Lease is hereby extended for an additional term (the
"Extended Term") of ten (10) years and nine (9) months commencing on July 1,
2000 (the "Extended Term Commencement Date") and ending on March 31, 2011 (the
"Expiration Date"), as if the Expiration Date was originally set forth in the
Lease as the expiration date thereof, instead of January 31, 2003.
3. Effective as of the first day of the Extended Term:
(a) The fixed annual rent to be paid by Tenant to Landlord under the
Lease during the Extended Term shall be abated during the period commencing on
the Extended Term Commencement Date and ending on December 31, 2000, and
thereafter shall be payable as follows:
(i) For the period commencing on January 1, 2001 and ending on
December 31, 2001, the fixed annual rent shall be Five Hundred Fifty Two
Thousand Four Hundred Forty-Eight and 00/100 Dollars ($552,448.00) per year, or
Forty Six Thousand Thirty-Seven and 33/100 Dollars ($46,037.33) per month;
(ii) For the period commencing on January 1, 2002 and ending on
December 31, 2002, the fixed annual rent shall be Five Hundred Sixty-Nine
Thousand Twenty-One and 44/100 Dollars ($569,021.44) per year, or Forty-Seven
Thousand Four Hundred Eighteen and 45/100 Dollars ($47,418.45) per month;
(iii) For the period commencing on January 1, 2003 and ending on
December 31, 2003, the fixed annual rent shall be Five Hundred Eighty-Six
Thousand Ninety-Two and 08/100 Dollars ($586,092.08) per year, or Forty-Eight
Thousand Eight Hundred Forty-One and 01/100 Dollars ($48,841.01) per month;
(iv) For the period commencing on January 1, 2004 and ending on
December 31, 2004, the fixed annual rent shall be Six Hundred Three Thousand Six
Hundred Seventy-Four and 85/100 Dollars ($603,674.85) per year, or Fifty
Thousand Three Hundred Six and 24/100 Dollars ($50,306.24) per month;
(v) For the period commencing on January 1, 2005 and ending on
December 31, 2005, the fixed annual rent shall be Six Hundred Twenty-One
Thousand Seven Hundred Eighty Five and 09/100 Dollars ($621,785.09) per year, or
Fifty-One Thousand Eight Hundred Fifteen and 42/100 Dollars ($51,815.42) per
month;
(vi) For the period commencing on January 1, 2006 and ending on
December 31, 2006, the fixed annual rent shall be Seven Hundred Twenty-Five
Thousand Three Hundred Fifty-Nine and 97/100 Dollars ($725,359.97) per year, or
Sixty Thousand Four Hundred Forty-Six and 66/100 Dollars ($60,446.66) per month;
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(vii) Notwithstanding anything to the contrary contained herein,
for the period commencing on January 1, 2006 and ending on March 31, 2006, the
fixed annual rent shall be abated;
(viii) For the period commencing on January 1, 2007 and ending on
December 31, 2007, the fixed annual rent shall be Seven Hundred Forty-Four
Thousand Five Hundred Seventy One and 01/100 Dollars ($744,571.01) per year, or
Sixty-Two Thousand Forty-Seven and 58/100 Dollars ($62,047.58) per month;
(ix) For the period commencing on January 1, 2008 and ending on
December 31, 2008, the fixed annual rent shall be Seven Hundred Sixty-Four
Thousand Three Hundred Fifty-Eight and 38/100 Dollars ($764,358.38) per year, or
Sixty-Three Thousand Six Hundred Ninety-Six and 53/100 Dollars ($63,696.53) per
month;
(x) For the period commencing on January 1, 2009 and ending on
December 31, 2009, the fixed annual rent shall be Seven Hundred Eighty-Four
Thousand Seven Hundred Thirty-Nine and 38/100 Dollars ($734,739.38) per year, or
Sixty Five Thousand Three Hundred Ninety-Four and 95/100 ($65,394.95) per month;
and
(xi) For the period commencing on January 1, 2010 and ending on
December 31, 2010, the fixed annual rent shall be Eight Hundred Five Thousand
Seven Hundred Thirty-One and 80/100 Dollars ($805,731.80) per year, or
Sixty-Seven Thousand One Hundred Forty-Four and 32/100 Dollars ($67,144.32) per
month; and
(xii) For the period commencing on January 1, 2011 and ending on
March 31, 2011, the fixed annual rent shall be Eight Hundred Twenty-Seven
Thousand One Hundred Eighty-Four and 64/100 Dollars ($827,184.64) per year, or
Sixty-Eight Thousand Nine Hundred Thirty-Two and 05/100 Dollars ($68,932.05) per
month.
Except as set forth above, the fixed annual rent shall be paid by
Tenant to Landlord in equal monthly installments in advance on the first day of
each and every month without any set-off or deduction whatsoever in the manner
provided in the Lease.
(b) The Fourth Article of the Lease is hereby deleted and the
following is substituted therefor:
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"Tenant shall use and occupy the demised premises for showroom,
design, general offices and sales offices for sale at wholesale
and not retail, of all apparel and accessories."
(c) The Tenth Article of the Lease is hereby deleted and the
following is substituted therefor:
"TENTH: - (i) Tenant shall not (A) assign or otherwise transfer this Lease
or the term and estate hereby granted, (B) sublet the demised premises or
any part thereof or allow the same to be used or occupied by others or in
violation of Fourth Article hereof, (C) mortgage, pledge or encumber this
Lease or the demised premises or any part thereof in any manner or permit
any lien to be filed against this Lease, the demised premises or the
Building by reason of any act or omission on the part of Tenant or enter
into any agreement which would permit the filing of a lien by any broker
(except for a broker's agreement in connection with a proposed assignment
by Tenant of its rights and obligations under the Lease or a sublease of
all or a portion of the demised premises), or (D) advertise, or authorize a
broker to advertise, for a subtenant or an assignee at a specified rental
rate, without, in each instance, obtaining the prior consent of Landlord,
except as otherwise expressly provided in this Article 10. For purposes of
this Article 10, (w) the transfer of a majority of the issued and
outstanding capital stock of any corporate tenant, or of a corporate
subtenant, or the transfer of a majority of the total interest in any
partnership tenant or subtenant, however accomplished, whether in a single
transaction or in a series of related or unrelated transactions, shall be
deemed an assignment of this Lease, or of such sublease, as the case may
be, except that the transfer of the outstanding capital stock of any
corporate tenant, or subtenant, shall be deemed not to include the sale of
such stock by persons or parties, through the "over-the-counter market" or
through any recognized stock exchange, other than those deemed "insiders"
within the meaning of the Securities Exchange Act of 1934 as amended
(provided, however, that any transfer of stock of Tenant or any affiliate
of Tenant by Xxxxxx Xxxxxxxx to members of his immediate family for estate
planning purposes shall not be deemed to effect an assignment of the
Lease), (x) a takeover agreement shall be deemed a transfer of this Lease,
(y) any person or legal representative of Tenant, to whom Tenant's interest
under this Lease passes by
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operation of law, or otherwise, shall be bound by the provisions of this
Article 10, and (z) a modification, amendment or extension of a sublease
shall be deemed a sublease.
(ii) The provisions of subparagraph (i) hereof shall not apply to
transactions with a corporation into or with which Tenant is merged or
consolidated or with an entity to which substantially all of Tenant's
assets are transferred or, if Tenant is a partnership, with a successor
partnership (provided such merger or transfer of assets is for a good
business purpose and not principally for the purpose of transferring the
leasehold estate created hereby, and provided further, that either the (x)
the assignee has a net worth at least equal to or in excess of the net
worth of Tenant immediately prior to such merger or transfer, or (y) such
assignee delivers a letter of credit, in the form annexed hereto as Exhibit
A, in the amount equal to the product of (A) twelve (12) and (B) the then
prevailing monthly fixed rent).
(iii) Any assignment or transfer, whether made with Landlord's consent as
required by subparagraph (i) or without Landlord's consent pursuant to
subparagraph (ii) hereof, shall be made only if, and shall not be effective
until, the assignee shall execute, acknowledge and deliver to Landlord a
recordable agreement (unless the assignment shall be a "deemed" assignment
by reason of a transfer of a majority interest in Tenant), in form and
substance reasonably satisfactory to Landlord, whereby the assignee shall
assume the obligations and performance of this Lease and agree to be
personally bound by and upon all of the covenants, agreements, terms,
provisions and conditions hereof on the part of Tenant to be performed or
observed and whereby the assignee shall agree that the provisions of
subparagraph (i) hereof shall, notwithstanding such an assignment or
transfer, continue to be binding upon it in the future. Tenant covenants
that, notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this Lease, and notwithstanding the
acceptance of fixed annual rent by Landlord from an assignee or transferee
or any other party, Tenant shall remain fully and primarily liable for the
payment of the fixed annual rent and additional rent due and to become due
under this Lease and for the performance of all of the covenants,
agreements, terms, provisions and conditions of this Lease on the part of
Tenant to be performed or observed.
(iv) The liability of Tenant, and the due performance by Tenant of the
obligations on its part to be performed under this Lease, shall not
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such payment within thirty (30) days after the giving of such notice,
then Tenant shall be entitled to offset the amount not paid against
the next rent coming due under the Lease. Notwithstanding anything
herein to the contrary, such offset right shall not be binding upon
nor inure to any mortgagee or superior lessor.
(E) If pursuant to the exercise of any of Landlord's options pursuant
to this subparagraph (v) this Lease is terminated as to only a portion of
the demised premises, then the fixed annual rent payable hereunder and the
additional rent payable pursuant to the terms of this Lease shall be
adjusted in proportion to the portion of the demised premises affected by
such termination.
(vi) In the event that Landlord does not exercise any of the options
available to it pursuant to subparagraph (v) hereof, Landlord shall not
unreasonably withhold or delay its consent to an assignment of this Lease
or a subletting of the whole or any part of the demised premises for
substantially the remainder of the term of this Lease, provided:
(A) Tenant shall furnish Landlord with the name and business address
of the proposed subtenant or assignee and information with respect to the
nature and character of the proposed subtenant's or assignee's business, or
activities, such references and current financial information with respect
to net worth, credit and financial responsibility as are reasonably
satisfactory to Landlord, and an executed counterpart of the sublease or
assignment agreement;
(B) The proposed subtenant or assignee is a party whose financial net
worth, credit and financial responsibility is, considering the
responsibilities involved, reasonably satisfactory to Landlord;
(C) The nature and character of the proposed subtenant or assignee,
its business or activities and intended use of the demised premises is, in
Landlord's reasonable judgment, in keeping with the standards of the
Building and the floor or floors on which the demised premises are located;
(D) The proposed subtenant or assignee is not then an occupant of any
part of the Building or a party who dealt with Landlord or Landlord's agent
(directly or through a broker) with respect
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to space in the Building during the six (6) months immediately preceding
Tenant's request for Landlord's consent;
(E) All costs incurred with respect to providing reasonably
appropriate means of ingress and egress from the sublet space or to
separate the sublet space from the remainder of the demised premises shall,
subject to the provisions of this Lease with respect to alterations,
installations, additions or improvements be borne by Tenant;
(F) Each sublease shall specifically state that (x) it is subject to
all of the applicable terms, covenants, agreements, provisions, and
conditions of this Lease, (y) the subtenant will not have the right to a
further sublease thereunder (except the subtenant of an entire floor of the
demised premises shall have all the rights to assign and sublease afforded
to the named Tenant herein (i.e., G-III Leather Fashions, Inc.); provided,
notwithstanding the provisions of subparagraph (vii)(B) of this Article 10,
such subtenant shall pay to Landlord any and all rents, additional charge
or other consideration payable under such sub-sublease or otherwise to
subtenant by the sub-subtenant which is in excess of the fixed annual rent
and additional rent accruing during the term of such sub-sublease in
respect of the sub-subleased space (at the rate per square foot payable by
subtenant thereunder) pursuant to the terms of this Lease (including, but
not limited to, sums paid for the sale or rental of subtenant's fixtures,
leasehold improvements, equipment, furniture or other personal property,
less, in the case of the sale thereof, the then net unamortized or
undepreciated cost thereof determined on the basis of subtenant's federal
income tax returns), and less the reasonable costs of effecting such
transaction, including, without limitation, brokerage commissions, legal
fees and build out costs, or to allow the demised premises to be used by
others, without the consent of Landlord in each instance, and (z) a consent
by Landlord thereto shall not be deemed or construed to modify, amend or
affect the terms and provisions of this Lease, or Tenant's obligations
hereunder, which shall continue to apply to the premises involved, and the
occupants thereof, as if the sublease had not been made;
(G) Tenant shall together with requesting Landlord's consent
hereunder, have paid Landlord any reasonable out-of-pocket costs incurred
by Landlord to review the requested consent including any attorneys fees
incurred by Landlord;
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(H) The proposed subtenant or assignee is not (w) a retail branch of a
bank trust company, safe deposit business, savings and loan association or
loan company; (x) an employment or recruitment agency; (y) school, college,
university or educational institution whether or not for profit; (z) a
government or any subdivision or agency thereof;
(I) In the case of a subletting of a portion of the demised premises,
the layout of the portion so sublet shall be commercially reasonable and
suitable for normal renting purposes and such subletting will not result in
more than two (2) occupants (including Tenant) occupying the demised
premises; and
(J) Tenant shall not have advertised or listed with any brokers the
proposed assignment or subletting at a rental rate less than the rental
rates then being charged under leases being entered into by Landlord for
comparable space in the Building.
(vii) If Tenant shall assign this Lease or sublease all or any part of the
demised premises, Tenant shall pay to Landlord, as additional rent:
(A) in the case of an assignment, an amount equal to one-quarter (1/4)
of all sums and other considerations paid to Tenant by the assignee for or
by reason of such assignment or otherwise (including, but not limited to,
sums paid for the sale of Tenant's fixtures, leasehold improvements,
equipment, furniture, furnishings or other personal property, less, in the
case of a sale thereof, the then net unamortized or undepreciated cost
thereof determined on the basis of Tenant's federal income tax returns);
and
(B) in the case of a sublease, one-quarter (1/4) of the amount equal
to any and all rents, additional charge or other consideration payable
under the sublease or otherwise to Tenant by the subtenant which is in
excess of the fixed annual rent and additional rent accruing during the
term of the sublease in respect of the subleased space (at the rate per
square foot payable by Tenant hereunder) pursuant to the terms hereof
(including, but not limited to, sums paid for the sale or rental of
Tenant's fixtures, leasehold improvements, equipment, furniture or other
personal property, less, in the case of the sale thereof, the then net
unamortized or undepreciated cost thereof determined on the basis of
Tenant's federal income tax returns).
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The sums payable under this subparagraph (vii) shall be paid to Landlord as
and when paid by the subtenant or assignee, as the case may be, to Tenant.
(viii) If Tenant defaults in the payment of any rent, Landlord is
authorized to collect any rents due or accruing from any assignee,
subtenant or other occupant of the demised premises and to apply the net
amounts collected to the fixed annual rent and additional rent reserved
herein. The receipt by Landlord of any amounts from an assignee or
subtenant, or other occupant of any part of the demised premises shall not
be deemed or construed as releasing Tenant from Tenant's obligations
hereunder or the acceptance of that party as a direct tenant."
(d) The Twelfth Article of the Lease is hereby supplemented with the
following:
"(c) Notwithstanding anything to the contrary, Landlord shall have the
right and privilege to serve at any time up to six (6) months prior to the
expiration of the term of this Lease, a notice upon Tenant that any
'nonstandard alterations' shall be removed and, in the event of service of
such notice, Tenant will, at Tenant's cost and expense, remove the same in
accordance with such request and repair any damage to the demised premises
caused by such removal; provided that Landlord shall have advised Tenant at
the time it consented to any such nonstandard alteration that Landlord may
require its removal at the end of the Lease term, if and to the extent that
Tenant shall have requested in writing such advice from Landlord when it
requested Landlord's consent to such alteration. For the purposes of this
Article 12, a 'nonstandard alteration' shall mean auditoriums or similar
type special use areas, vaults, atriums, kitchen equipment and
installations, internal stairways, slab reinforcements, raised floors or
other alterations which impede the installation of duct work or other
normal installations above the finished ceiling or which are not suitable
for normal office occupancy or which would be unusually difficult or costly
to remove in comparison to usual alterations required for general office
purposes. Notwithstanding the foregoing, it is understood and agreed by the
parties hereto that all improvements and other alterations to the demised
premises made by or on behalf of Tenant prior to July 1, 2000, shall be
deemed to be standard alterations which Landlord may not require Tenant to
remove."
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(e) The Twenty-Second Article of the Lease is hereby deleted and the
following is substituted therefor:
"(i) Tenant agrees that Landlord shall furnish electricity to
Tenant on a 'submetering' basis. Landlord shall install any submeters
reasonably required in Landlord's judgment in the demised premises for the
purposes of this Article, at Tenant's sole cost and expense. Electricity
and electric service, as used herein, shall mean any element affecting the
generation, transmission, and/or distribution or redistribution of
electricity, including, but not limited to, services which facilitate the
distribution of service.
(ii) Tenant covenants and agrees to purchase electricity from
Landlord or Landlord's designated agent at charges, terms and rates,
including, without limitation, fuel adjustments and taxes, equal to those
specified in the Con Edison SC#4-I rate schedule effective on the date
Landlord first provides electricity to the demised premises on a
submetering basis (the "effective" date), or any successor rate schedule or
service classification, plus five percent (5%) for transmission line loss
and other redistribution costs. Where more than one (1) meter measures the
service of Tenant in the Building, then the service registered by each
meter shall be aggregated and billed at the applicable rate as if there
were only one (1) sub-meter measuring Tenant's aggregate use in the entire
demised premises. Bills therefore shall be rendered at such times as
Landlord may elect and the amount, as computed from a meter, shall be
deemed to be, and be paid as, Additional Charges. If any tax is imposed by
any Federal, State or Municipal authority upon Landlord's receipts from the
sale or resale of electrical energy to Tenant hereunder, Tenant covenants
and agrees that where permitted by law, Tenant's pro-rata share of such
taxes shall be included in the amount of Additional Charges to be paid by
Tenant to Landlord hereunder.
(iii) If all or part of the submetering additional rent payable
in accordance with this Article 22 becomes uncollectible or reduced or
refunded by virtue of any law, order or regulation, the parties agree that,
at Landlord's option, in lieu of submetering Additional Charges, and in
consideration of Tenant's use of the Building's electrical distribution
system and receipt of redistributed electricity and payment by Landlord of
consultant's fees and other redistribution costs, the fixed annual rent to
be paid under this Lease shall be increased by an "alternative charge"
which shall be the
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average per rentable square foot rate payable by Tenant for electricity
during the prior twelve (12) month period pursuant to this Article.
(iv) Landlord shall not be liable for any loss or damage or
expense which Tenant may sustain or incur if either the quantity or
character of electric service is changed or is no longer available or
suitable for Tenant's requirements. Tenant covenants and agrees that at all
times its use of electric current shall never exceed the capacity of
existing feeders to the Building or wiring installation. Any riser or
risers to supply Tenant's electrical requirements, upon written request of
Tenant, will be installed by Landlord, at the sole cost and expense of
Tenant, if, in Landlord's reasonable judgment, the same are reasonably
necessary and will not cause permanent damage or injury to the Building or
demised premises or cause or create a dangerous or hazardous condition or
entail excessive or unreasonable alterations, repairs or expenses or
otherwise interfere with or disturb other tenants or occupants of the
Building, except to a de minimis extent. In addition to the installation of
such riser or risers, Landlord will also at the sole cost and expense of
Tenant, install all other equipment proper and necessary in connection
therewith subject to the aforesaid terms and conditions. The parties
acknowledge that they understand that it is anticipated that electric
rates, charges, etc., may be changed by virtue of time-of-day rates or
other methods of billing, electricity purchases and the redistribution
thereof, and that the references in the foregoing paragraphs to changes in
methods of or rules on billing are intended to include any such changes.
Anything hereinabove to the contrary notwithstanding, in no event is the
submetering additional rent or any "alternative charge", to be less than an
amount equal to the total of Landlord's payment to public utilities and/or
other providers for the electricity consumed by Tenant (and any taxes
thereon or on redistribution of same) plus five percent (5%) for
transmission line loss and other redistribution costs. Landlord reserves
the right to terminate the furnishing of electricity upon sixty (60) days'
prior written notice to Tenant; provided Landlord terminates the furnishing
of electricity to at least fifty percent (50%) of the tenants of the
Building (not including those retail tenants on the ground floor of the
Building) to whom Landlord is furnishing electricity on a submetered basis,
in which event the Tenant may make application directly to the public
utility and/or other providers for the Tenant's entire separate supply of
electric current and Landlord shall permit its wires and conduits, to the
extent available and safely capable, to be used for such purpose, but only
to the extent of Tenant's then
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authorized load. Any meters, risers, or other equipment or connections
reasonably necessary to furnish electricity on a submetering basis or to
enable Tenant to obtain electric current directly from such utility and/or
other providers shall be installed at Tenant's sole cost and expense. Only
rigid conduit or electrical metal tubing (EMT) will be allowed. Landlord,
upon the expiration of the aforesaid sixty (60) days' prior written notice
period may discontinue furnishing the electric current but this Lease shall
otherwise remain in full force and effect.
(v) Tenant's use of electric energy in the demised premises shall
not at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the demised premises. In order to insure
that such capacity is not exceeded and to avert possible adverse effect
upon the Building's distribution of electricity via the Building's electric
system, Tenant shall not, without Landlord's prior consent in each instance
(which consent shall not be unreasonably withheld or delayed), connect any
fixtures, appliances or equipment (other than normal business machines and
personal computers, which do not materially increase Tenant's electrical
consumption) to the Building's electric system or make any alterations or
additions to the electric system of the demised premises existing on the
Extended Term Commencement Date. Landlord shall continue to make electrical
energy available to the demised premises in accordance with current
practice.
(vi) (1) Upon Tenant's request therefor, Landlord shall provide
Tenant with utility invoices and other reasonable documentation supporting
its computation of Additional Charges hereunder.
(2) At Landlord's option, Tenant shall purchase from
Landlord or Landlord's agent all lighting tubes, lamps, bulbs and ballasts
used in the demised premises and Tenant shall pay Landlord's reasonable
charges for providing and installing same, on demand, as additional rent."
(f) Tenant shall simultaneously upon execution of the First Amendment
of Lease dated as of July 1, 2000 (the "Amendment") deliver to Landlord
additional cash security in the amount of Thirty Thousand, Thirty and 83/100
Dollars ($30,030.83). With Tenant's delivery of this additional cash security,
the amount of security provided for in the Thirty-Eighth Article of the
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Lease is hereby amended to be the aggregate amount of Fifty-Six Thousand Five
Hundred Ninety and 83/100 Dollars ($56,590.83).
(g) The Thirty-Ninth Article of the Lease is hereby amended as
follows:
(i) All references to "five (5) days" in subparagraph (a) thereof
are hereby deleted and "fifteen (15) days" is substituted therefor.
(ii) Subparagraph (b) thereof is hereby amended by deleting
proviso (1) therefrom and substituting the following therefor:
"(1) if Tenant shall make default in the payment of the rent
reserved herein for a period of five (5) days after receipt of
written notice from Landlord that same is past due or default in
the payment of additional rent due herein for a period of fifteen
(15) days after receipt of written notice from Landlord that same
is past due..."
(h) The Forty-Eighth Article of the Lease is hereby amended such that
notices sent by Tenant to Landlord shall be sent as set forth in the Lease to
c/o Newmark & Company Real Estate, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. A copy of any default or any other notices shall be sent to Arent Fox
Xxxxxxx Xxxxxxx & Xxxx, PLLC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx Xxxxxx, Esq. The Forty-Eighth Article of the Lease is hereby
further amended such that a copy of notices sent by Landlord to Tenant shall
also be sent to Fulbright & Xxxxxxxx L.L.P., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx, Esq.
(i) The Fifty-Seventh Article of the Lease is hereby deleted.
(j) The term "base tax year" as set forth in the Fifty-Eighth Article
of the Lease is hereby amended to mean "the New York City real estate tax year
commencing July 1, 2000 and ending June 30, 2001".
(k) The Sixty-Fifth Article of the Lease is hereby deleted and the
following is substituted therefor:
"SIXTY-FIFTH: - Within fifteen (15) days after the Amendment has been fully
executed, Landlord shall pay Tenant, as a contribution to the cost of
Tenant's work to prepare the demised premises for Tenant's occupancy, the
amount of One Hundred Six Thousand Two Hundred Forty and 00/100
($106,240.00) Dollars. On February 1, 2006,
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Landlord shall pay Tenant, as a second (2nd) contribution to the cost of
Tenant's work to prepare the demised premises for Tenant's occupancy, the
amount of Three Hundred Eighteen Thousand Seven Hundred Twenty and 00/100
($318,720.00) Dollars."
(I) The Sixty-Sixth Article of the Lease is hereby deleted and the
following is substituted thereof:
"SIXTY-SIXTH: - (i) If Tenant shall fail to pay any installment of fixed
annual rent for more than five (5) days after the same becomes due and
payable or any amount of additional rent for more than fifteen (15) days
after the same becomes due and payable (collectively, the "Default
Periods"), Tenant shall pay Landlord a late charge of ten cents ($0.10) for
each dollar of such fixed annual rent or additional rent as shall not have
been paid to Landlord within said respective Default Periods. Such late
charge shall be without prejudice to any of Landlord's rights and remedies
hereunder or at law for nonpayment of rent, shall be in addition thereto
and shall be deemed to be additional rent. Notwithstanding anything to the
contrary contained herein, Tenant shall be permitted to pay an installment
of fixed annual rent late once per calendar year without incurring a late
charge, provided such payment is received no later than the tenth (10th)
day of the month in which such payment is due. Further, notwithstanding
anything to the contrary contained herein, Landlord shall waive the late
charge for one (1) late payment of additional rent by Tenant per calendar
year, provided such payment is received no later than thirty (30) days
after the date such payment was due.
(ii) If in accordance with the Thirty-Ninth Article of the Lease, Tenant
shall be in default in the payment of (A) any installment of fixed annual
rent or any amount of additional rent or (B) any other sum of money which
shall become due and payable by Tenant to Landlord pursuant to the terms of
this Lease or by reason of Tenant's occupancy of the demised premises, in
addition to (and not in lieu of) the late charge provided for in
subparagraph (i) above, Tenant shall pay interest thereon at a rate equal
to the lesser of four percent (4%) above the prime rate per annum from time
to time set forth in The Wall Street Journal, calculated on the basis of
the actual days elapsed, based on a 360-day year, or the minimum rate of
interest allowed by applicable law(s), if any, then prevailing, from the
date on which such installment or payment is due to the date of payment
thereof, and such interest shall be deemed to be additional rent.
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(iii) Except as required by statute and under the laws, nothing contained
in Article 39 or in this Article 66 shall be deemed to require Landlord to
give the notices therein or herein (if any) provided for prior to the
commencement of a summary proceeding for nonpayment of rent or a plenary
action for the recovery of rent on account of any default in the payment of
the same, it being intended that such notices are for the sole purpose of
creating a conditional limitation hereunder pursuant to which this Lease
shall terminate and if Tenant thereafter remains in possession or
occupancy, it shall become a holdover tenant."
(m) The Sixty-Seventh Article of the Lease is hereby deleted and the
following is substituted therefor:
"SIXTY-SEVENTH: - (i) This Lease shall be governed in all respects by the
laws of the State of New York.
(ii) If, in connection with obtaining financing for the Building, a bank,
insurance company or other lending institution shall request reasonable
modifications to this Lease as a condition to such financing, Tenant will
not unreasonably withhold, delay or defer its consent thereto, provided
that such modifications do not increase the obligations of Tenant
hereunder, decrease the obligations of Landlord hereunder, except to a de
minimis extent, or otherwise materially or adversely affect Tenant's
leasehold interest hereby created.
(iii) Tenant shall not be entitled to exercise any right of termination or
other option granted to it by this Lease (if any) at any time when Tenant
is in monetary default, after applicable notice, grace and/or cure periods,
in the performance or observance of any of the covenants, terms, provisions
or conditions on its part to be performed or observed under this Lease.
(iv) Tenant shall not occupy any space in the Building (by assignment,
sublease or otherwise) other than the demised premises or other premises
leased to Tenant directly by Landlord (except if the named Tenant herein is
subsequently purchased by a third party which leases space in the
Building), except with the prior written consent of Landlord in each
instance..
(v) Tenant acknowledges that it has no rights to any development rights,
"air rights" or comparable rights appurtenant to the land or building, and
consents, without further consideration, to any utilization
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of such rights by Landlord and agrees to promptly execute and deliver any
instruments which may be requested by Landlord, including instruments which
may be reasonably requested by Landlord, including instruments merging
zoning lots, evidencing acknowledgment and consent. The provisions of this
paragraph shall be deemed to be and shall be construed as an express waiver
by Tenant of any interest Tenant may have as a "party in interest" (as such
quoted term is defined in Section 12 Zoning Lot of the Zoning Resolution of
the City of New York) in the building or the land.
(vi) Any and all payments and charges to be paid by Tenant hereunder other
than the annual rent payable pursuant to this Lease shall be additional
rent hereunder for non-payment of which Landlord shall have all of the
remedies provided herein or at law.
(vii) If this Lease be a renewal of an existing lease between the parties
or their predecessors in interest, then any obligation of Tenant for the
payment of rent or additional rent or the performance of any obligation
under such existing lease which accrues prior to the expiration thereof
shall constitute an obligation under this Lease, except as modified by the
Amendment (as that term is defined in Article 38 of this Lease), for
non-payment or non-performance for which Landlord shall have all of the
remedies provided herein."
(n) The Sixty-Eighth Article of the Lease is hereby deleted and the
following is substituted therefor:
"SIXTY-EIGHTH: - As a material inducement to Landlord for entering into
this Lease, Tenant covenants and agrees that except for the inside surfaces
of all walls, windows and doors bounding the demised premises, all of the
remainder of the Building is exclusively reserved to Landlord, subject to
Tenant's right to use the common areas of the Building in accordance with
the applicable provisions of this Lease (including, without limitation, the
lobby, elevators and core bathrooms, as opposed to private bathrooms, on
the thirty-fourth (34th) and thirty-fifth (35th) floors of the Building).
Notwithstanding anything to the contrary contained herein, Tenant shall
have the right to use in accordance with the Lease, the electric and
telephone closets and so-called "slop" sinks on the thirty-fourth (34th)
and thirty-fifth (35th) floors of the Building."
(o) The Sixty-Ninth Article of the Lease is hereby deleted.
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(p) The second sentence of the Twenty-First Article of the Lease shall
be amended to read as follows:
"Landlord or Landlord's agents shall have the right to enter the demised
premises at reasonable times after notice (which may be oral) to Tenant to
examine the same..."
4. Each party hereto covenants, warrants and represents to the other party
that it has had no dealings, conversations or negotiations with any broker other
than Newmark & Company Real Estate, Inc., concerning the execution and delivery
of this Amendment. Each party hereto agrees to defend, indemnify and hold
harmless the other party against and from any claims for any brokerage
commissions and all costs, expenses and liabilities in connection therewith,
including, without limitation, reasonable attorneys' fees and disbursements,
arising out of its respective representations and warranties contained in this
Paragraph 4 being untrue. Landlord shall pay any brokerage fees which may be due
to Newmark & Company Real Estate, Inc. in connection with this Amendment
pursuant to a separate agreement.
5. Except as expressly set forth in this Amendment, the terms and
conditions of the Lease shall continue in full force and effect without any
change or modification and shall apply for the balance of the term of the Lease
as hereby extended. In the event of a conflict between the terms of the Lease
and the terms of this Amendment, the terms of this Amendment shall govern.
6. This Amendment shall not be altered, amended, changed, waived,
terminated or otherwise modified in any respect or particular, and no consent or
approval required pursuant to this Amendment shall be effective, unless the same
shall be in writing and signed by or on behalf of the party to be charged.
7. This Amendment shall be binding upon and shall inure to the benefit of
the parties hereto and to their respective heirs, executors, administrators,
successors and permitted assigns.
8. All prior statements, understandings, representations and agreements
between the parties, oral or written, are superseded by and merged in this
Amendment, which alone fully and completely expresses the agreement between them
in connection with this transaction and which is entered into after full
investigation, neither party relying upon any statement, understanding,
representation or agreement made by the other not embodied in this Amendment
relating to the demised premises. Landlord acknowledges that Tenant occupies
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other space in the Building pursuant to separate agreements between Landlord and
Tenant which may be renewed and amended from time to time.
9. No failure or delay of either party in the exercise of any right or
remedy given to such party hereunder or the waiver by any party of any condition
hereunder for its benefit (unless the time specified herein for exercise of such
right or remedy has expired) shall constitute a waiver of any other or further
right or remedy nor shall any single or partial exercise of any right or remedy
preclude other or further exercise thereof or any other right or remedy. No
waiver by either party of any breach hereunder or failure or refusal by the
other party to comply with its obligations shall be deemed a waiver of any other
or subsequent breach, failure or refusal to so comply.
10. This Amendment shall be interpreted and enforced in accordance with the
laws of the state in which the demised premises are located without reference to
principles of conflicts of laws.
11. If any provision of this Amendment shall be unenforceable or invalid,
the same shall not affect the remaining provisions of this Amendment and to this
end the provisions of this Amendment are intended to be and shall be severable.
Notwithstanding the foregoing sentence, if (i) any provision of this Amendment
is finally determined by a court of competent jurisdiction to be unenforceable
or invalid in whole or in part, (ii) the opportunity for all appeals of such
determination have expired, and (iii) such unenforceability or invalidity alters
the substance of this Amendment (taken as a whole) so as to deny either party,
in a material way, the realization of the intended benefit of its bargain, such
party may terminate this Amendment within thirty (30) days after the final
determination by notice to the other. If such party so elects to terminate this
Amendment, then this Amendment shall be terminated and neither party shall have
any further rights, obligations or liabilities hereunder, except those
obligations which expressly survive the termination of this Amendment.
12. LANDLORD AND TENANT HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY,
UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY RIGHT EACH MAY HAVE TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER ARISING IN TORT OR CONTRACT)
BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS AMENDMENT OR ANY OTHER DOCUMENT EXECUTED AND DELIVERED BY
EITHER PARTY IN CONNECTION HEREWITH (INCLUDING ANY ACTION TO RESCIND OR CANCEL
THIS AMENDMENT ON THE GROUNDS THAT THIS AMENDMENT WAS FRAUDULENTLY INDUCED OR IS
OTHERWISE VOID OR VOIDABLE).
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13. This Amendment may be executed in any number of counterparts. It is not
necessary that all parties sign all or any one of the counterparts, but each
party must sign at least one counterpart for this Amendment to be effective.
14. This Amendment shall not be binding upon either party unless and until
it is fully executed and delivered to both parties.
* * * * *
[The remainder of this page is left intentionally blank; the signature page
follows]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of
the date and year first above written.
LANDLORD:
000-000 XXXXXXX XXXXXX LIMITED PARTNERSHIP
By: 500-512 ArCap LLC, its General Partner
By: Archon Capital, L.P., its sole
Member
By: WH MezzCo GP, L.L.C., its
General Partner
By: /s/ Xxxx X. Xxxx
-----------------------------
Name: Xxxx X. Xxxx
Title: Vice President
By: GS MezzCo GP, L.L.C., its General
Partner
By:
-----------------------------
Name:
Title:
TENANT:
G-III LEATHER FASHIONS, INC.
By: XXXXX X. XXXXXX
-----------------------------------------
Name: XXXXX X. XXXXXX
Title: CFO
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