AGREEMENT OF SUB-SUBLEASE
This AGREEMENT OF SUB-SUBLEASE (this "Sublease") dated as of December 27,
1995, between G-III APPAREL GROUP, LTD., a Delaware corporation having an office
at 345 West 37th Street, New York, New York 10018-4202 ("Sublandlord") and
EUROPE CRAFT IMPORTS, INC., a New Jersey corporation, having an office at
15 Enterprise Avenue, Secaucus, New Jersey ("Subtenant")
W I T N E S S E T H :
WHEREAS, Sublandlord has subleased certain premises consisting of warehouse
space and an outlet store located at 15 Enterprise Avenue, Secaucus, New Jersey
(the "G-III Premises") from GWC Investments ("GWC") pursuant to a certain
Sublease Agreement dated March 9, 1990 as amended by a certain First Amendment
to Sublease Agreement dated December 21, 1993 (as amended, the "GWC Lease");
WHEREAS, the G-III Premises is a portion of the premises that were leased
to GWC by 15 Enterprise Avenue Associates, L.P. (the "Overlandlord") pursuant to
a certain Lease (the "Main Lease") defined as the "Lease" under the GWC Lease;
and
WHEREAS, Sublandlord desires to sub-sublease to Subtenant the warehouse
portion of the G-III Premises as such portion is shown in hatching on Exhibit A
attached hereto (the "Subleased Premises") which Subleased Premises are intended
to include, without limitation, (i) all portions of the existing building
occupied by Sublandlord or leased by Sublandlord under the GWC Lease except for
the existing outlet store and (ii) the Existing Trucking Area (as defined in the
GWC Lease) leased to Sublandlord and Subtenant desires to sub-sublease from
Sublandlord the Subleased Premises, on the terms and conditions hereinafter set
forth;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Demise and Term. Sublandlord hereby sub-subleases to Subtenant, and
Subtenant hereby sub-subleases from Sublandlord the Subleased Premises.
Notwithstanding the foregoing, Sublandlord and Sublandlord's officers,
representatives, employees, agents, contractors, customers and invitees shall
have the right of ingress and egress on and over the Existing Trucking Area at
all times to these remaining portions of G-III premises not sub-subleased to
Subtenant hereunder. The term of this Sublease shall commence on the date (the
"Commencement Date") which is ten (10) days following the later to occur of (i)
the date which is two (2) business days from the date Sublandlord shall notify
Subtenant that GWC and the Overlandlord shall have consented to this Sublease
and Sublandlord shall have delivered a copy of such consents to Subtenant, or
(ii) the delivery to Subtenant of the Non-Disturbance Agreements as
described in Paragraph 30, below and ending on March 8, 2000 (the "Expiration
Date"), unless sooner terminated or canceled as provided in this Sublease.
Sublandlord shall deliver possession of the Subleased Premises to Subtenant
vacant and broom-clean on the Commencement Date.
2. Subordinate to Main Lease and Sublease. This Sublease is and shall be
subject and subordinate to the GWC Lease and the Main Lease, and to the matters
to which the GWC Lease or the Main Lease are or shall be subject and
subordinate. A copy of the GWC Lease and the Main Lease have been delivered to
and examined by Subtenant.
3. Incorporation by Reference. A. The terms, covenants and conditions of
the GWC Lease, whether or not the same are expressly referred to herein, are
incorporated herein by reference (except to the extent that they are
inapplicable to, or modified by the provisions of, this Sublease). To the extent
that the terms, covenants and conditions of the Main Lease are incorporated into
the GWC Lease (as such terms, covenants and conditions may have been modified by
the GWC Lease), such terms, covenants and conditions are incorporated herein by
reference. For the purpose of incorporation by reference, each and every term,
covenant and condition of the GWC Lease binding upon or inuring to the benefit
of the sublessor thereunder shall, in respect of this Sublease, bind or inure to
the benefit of Sublandlord, and each and every term, covenant and condition of
the GWC Lease binding upon or inuring to the benefit of the sublessee thereunder
shall, in respect of this Sublease, bind or inure to the benefit of Subtenant,
with the same force and effect as if such terms, covenants and conditions were
completely set forth in this Sublease, and as if the words "sublessor" and
"sublessee", or words of similar import, wherever the same appear in the GWC
Lease, were construed to mean, respectively, "Sublandlord" and "Subtenant" in
this Sublease, and as if the words "Demised Premises," or words of similar
import, wherever the same appear in the GWC Lease, were construed to mean
"Subleased Premises" in this Sublease, and as if the word "Sublease," or words
of similar import, wherever the same appear in the GWC Lease, were construed to
mean this "Sublease."
B. The grace periods and time limits contained in the GWC Lease for the
giving of notices, making of demands or performing of any act, condition or
covenant on the part of the tenant thereunder, or for the exercise by the tenant
thereunder of any right, remedy or option, are changed for the purposes of
incorporation herein by reference by shortening the same in each instance by
one-half, so that in each instance Subtenant shall have one-half less time to
observe or perform hereunder than Sublandlord has as the tenant under the GWC
Lease. All notices of default under the Main Lease or the GWC Lease shall be
delivered to Subtenant in accordance with Section 26 hereof and by hand to the
addresses set forth in such section.
C. The following provisions of the GWC Lease shall be deemed deleted
for the purposes of incorporation by reference in this Sublease: Articles 1, 2,
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3(a), 3(b), 4(b), 6(e), 8, 9(a), 10(b) through 10(h), 13, 14, 18, 21, 28(b),
30(n), 31, 34, 36, 40, 43(j), 45, 46C.(1), 46C.(3), 46C.(4), 46G. and 46I. and
Exhibits A and E.
D. Article 11 of the GWC Lease is hereby modified to provide that
Subtenant shall be allocated a total of 94 parking spaces of the 109 spaces
allocated to Sublandlord thereunder on an unreserved basis; provided, however,
that at the request of either party hereto, Sublandlord and Subtenant shall
agree that each party's allocated spaces shall be reserved at reasonable
locations for the conduct of each party's business.
E. If any of the express provisions of this Sublease shall conflict
with any of the provisions of the GWC Lease or the Main Lease incorporated by
reference, such conflict shall be resolved in every instance in favor of the
express provisions of this Sublease.
4. Performance by Sublandlord. A. Subtenant shall not in any event have
any rights in respect of the Subleased Premises greater than Sublandlord's
rights under the GWC Lease. Notwithstanding any provision of this Sublease to
the contrary, as to obligations contained in this Sublease by the incorporation
by reference of the provisions of the GWC Lease or the Main Lease, Sublandlord
shall not be required to make any payment or perform any obligation, and
Sublandlord shall have no liability to Subtenant for any matter whatsoever,
except for Sublandlord's obligation to pay the rent and additional rent due
under the GWC Lease and for Sublandlord's obligation to use reasonable and
diligent efforts, upon request of Subtenant, to cause GWC to observe and perform
its obligations under the GWC Lease. Without limiting Sublandlord's obligations
under Section 10 hereof, Sublandlord shall not be responsible for any failure,
delay or interruption, for any reason whatsoever, of the obligations, services
or facilities to be furnished or performed by the GWC or the Overlandlord, or
otherwise, including, without limitation, heat, air conditioning, electricity,
water, elevator service and cleaning service, if any, or GWC's breach of the
covenant of quiet enjoyment set forth in Article 20 of the GWC Lease; and no
failure to furnish or observe, or delay or interruption of, any such
obligations, services or facilities shall give rise to any (a) abatement,
diminution or reduction of Subtenant's obligations under this Sublease provided,
however, that Subtenant may withhold the Fixed Rent (as hereinafter defined) to
the extent Sublandlord is withholding Basic Rent (as such term is defined under
the GWC Lease) otherwise payable under the GWC Lease, or (b) liability on the
part of Sublandlord. If Sublandlord shall have the right to withhold rent under
the express terms and provisions of the GWC Lease based upon the failure of GWC
to perform its obligations thereunder, Subtenant shall have the right to
withhold rent hereunder to the extent such right applies to the Subleased
Premises.
B. If GWC shall default in any of its obligations to Sublandlord with
respect to the Subleased Premises, Subtenant shall be entitled to participate
with Sublandlord in the enforcement of Sublandlord's rights against GWC (and to
receive 100% of any recovery or relief obtained), but Sublandlord shall have no
obligation to bring any action or proceeding or to take any steps to enforce
Sublandlord's rights
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against GWC. If Subtenant shall request that Sublandlord commence an action or
proceeding against GWC and Sublandlord brings such an action or proceeding, such
action or proceeding so instituted by Sublandlord shall be at the expense of
Subtenant. In lieu of requesting that Sublandlord commence an action or
proceeding against GWC, however, Subtenant shall have the right to take such
action in its own name (including, without limitation, the commencement and
pursuit of an action or proceeding against GWC) and, for that purpose and only
to such extent, all of the rights of Sublandlord to enforce the obligations of
GWC under the Lease are hereby conferred upon and are conditionally assigned to
Subtenant and Subtenant hereby is subrogated to such rights (including, without
limitation, the benefit of any recovery or relief); provided, however, that
Subtenant shall only have such rights if Subtenant shall not be in either
monetary default or material non-monetary default under this Sublease beyond any
applicable grace or cure period. Subtenant shall indemnify and hold Sublandlord
harmless from and against any loss, cost, liability, claim, damage, expense
(including, without limitation, reasonable attorneys' fees), penalties and fines
incurred in connection with or arising out of the taking of any such action by
Subtenant.
5. No Breach of Main Lease. Neither Sublandlord nor Subtenant shall do
or permit to be done any act or thing which may constitute a breach or violation
of any term, covenant or condition of the GWC or the Main Lease, whether or not
such act or thing is permitted under the provisions of this Sublease. As of the
date hereof, Sublandlord has no knowledge, after due inquiry, that any uncured
defaults exist under the GWC Lease or the Main Lease.
6. No Privity of Estate. Nothing contained in this Sublease shall be
construed to create privity of estate or of contract between Subtenant and the
GWC or the Overlandlord.
7. Rent. A. Subtenant shall pay to Sublandlord rent (the "Fixed Rent")
hereunder at the rate per annum, and in such equal monthly installments as is
set forth in Exhibit B attached hereto and made a part hereof, five (5) business
days before the first day of each month during the term of this Sublease,
subject to the grace and cure periods set forth in Articles 26 and 27 of the GWC
Lease as modified by Section 3.B. hereof. If the Commencement Date shall be a
date other than the first day of the calendar month, then the rent for any such
partial calendar month in which the Commencement Date occurs shall be prorated
on a per-diem basis and shall be payable on the Commencement Date. Upon the
execution of this Sublease, Subtenant shall pay to Sublandlord an amount equal
to one monthly installment of Fixed Rent and Sublandlord shall give Subtenant a
credit for such amount against the monthly installment that otherwise would have
been due for the first full month of the term hereof.
B. Fixed Rent and all other amounts payable by Subtenant to Sublandlord
under this Sublease (the "Additional Charges") shall be paid promptly when due,
after any notice and the expiration of any applicable cure period set forth in
Articles 26 and 27 of the GWC Lease as modified by Section 3.B. hereof, and
without
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deduction, abatement, counterclaim or setoff of any amount or for any reason
whatsoever. Fixed Rent and Additional Charges shall be paid to Sublandlord in
lawful money of the United States at the address of Sublandlord set forth at the
head of the Sublease or to such other person or at such other address as
Sublandlord may from time to time designate by notice to Subtenant. No payment
by Subtenant or receipt by Sublandlord of any lesser amount than the amount
stipulated to be paid hereunder shall be deemed other than on account of the
earliest stipulated Fixed Rent or Additional Charges; nor shall any endorsement
or statement on any check or letter be deemed an accord and satisfaction, and
Sublandlord may accept any check or payment without prejudice to Sublandlord's
right to recover the balance due or to pursue any other remedy available to
Sublandlord.
C. In the event that any Additional Charges accrue with respect to any
period that does not occur during the term of this Sublease, then Subtenant
shall have no liability for any Additional Charges accruing during such period.
If any Additional Charges are payable under this Sublease with respect to any
period which is partially included in the term of this Sublease, then such
Additional Charges shall be pro-rated, based on the actual number of days of
such period occurring during the term to the total number of days in such
period.
8. Security Deposit. Subtenant is depositing with Sublandlord
simultaneously herewith, the sum of $120,000 with Sublandlord, which deposit
shall constitute security (the "Security") for the full and timely performance
by Subtenant of all of the terms, covenants and conditions of this sublease on
Subtenant's part to be performed. Sublandlord shall have the right, without
notice to Subtenant, and regardless of the exercise of any other remedy
Sublandlord may have by reason of Subtenant's default, to apply any part of the
Security to cure any default of Subtenant, and, if Sublandlord does so,
Subtenant shall upon demand deposit with Sublandlord the amount so applied so
that Sublandlord shall have on deposit the full amount of the Security at all
times during the term of this Sublease as provided above. In the event of an
assignment or transfer of the leasehold estate under the GWC Lease pursuant to a
bona fide arms-length transaction, Sublandlord shall have the right to transfer
the Security to the assignee and, to the extent the Security is actually
transferred, a Sublandlord shall thereupon be automatically released by
Subtenant from all liability for the return of the Security and Subtenant shall
look solely to the assignee for the return of the Security, and the foregoing
provisions of this sentence shall apply to every transfer made of the Security
to a new assignee of Sublandlord's interest in the GWC Lease. The Security shall
not be assigned or encumbered by Subtenant without the prior written consent of
Sublandlord, and any such assignment or encumbrance without such consent shall
be void.
In lieu of cash, Subtenant shall have the right to deliver to Sublandlord
for the Security an irrevocable, unconditional letter of credit (the "Letter of
Credit") subject to the terms and conditions set forth hereinbelow. The Letter
of Credit shall be a "clean" letter of credit issued by a bank reasonably
satisfactory to Sublandlord, and shall be substantially in the form of Exhibit D
to the GWC Lease. The Letter of Credit
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may have an initial term of no greater than one (1) year and shall be extended
automatically by the issuing bank or replaced by Subtenant with another letter
of credit which complies with the foregoing requirements at least thirty (30)
days prior to its expiration. It is agreed that in the event (i) Subtenant
defaults in the performance of any of the terms, provisions, covenants and
conditions of this Sublease beyond the expiration of any applicable grace or
cure period, or (ii) the Letter of Credit is not extended or replaced by
Subtenant in a manner which complies with the foregoing provisions, Sublandlord
shall have the right but shall not be required to, from time to time without
prejudice to any other remedy Sublandlord may have on account thereof, to
present the Letter of Credit for payment and to retain the proceeds as the
Security in the event of an occurrence under clause (ii) above, or in the event
of an occurrence under clause (i) above, to use, apply or retain the whole or
any part of the proceeds to the extent required for the payment of sum as to
which Subtenant is in default or for any sum which Sublandlord may reasonably
expend or may be reasonably required to expend by reason of Subtenant's default,
and Subtenant shall within thirty (30) days replenish any funds so used, applied
or retained by Sublandlord.
9. Taxes and Utilities, Property Expenses and Insurance Premiums. A. In
addition to the Fixed Rent payable hereunder, Subtenant shall pay to
Sublandlord, 96% of the cost of electricity (but not water or sewer charges)
(pursuant to Article 3(c)(ii) of the GWC Lease), to the extent payable by
Sublandlord under the GWC Lease. Sublandlord shall pay all amounts due for real
estate taxes and insurance premiums under Article 3 and Article 43,
respectively, of the GWC Lease.
B. Subtenant shall pay all amounts due under Section 9A for utilities
within ten (10) days of the delivery to Subtenant by Sublandlord of a demand
therefor, which demand shall include a copy of the statement to Sublandlord from
GWC for such item together with a copy of Sublandlord's check in payment of such
statement.
C. Subtenant's sole obligation to pay rent, additional rent and
Additional Charges under this Sublease is expressly set forth in this Sublease
and Subtenant shall have no obligation to pay additional rent or charges
required under the GWC Lease except for obligations, if any, of Sublandlord that
are deemed additional rent under the GWC Lease provided that such obligations
arise solely from the negligence or wrongful acts of Subtenant and not otherwise
payable in the ordinary course of business.
10. Maintenance and Repairs. A. Sublandlord shall keep the Subleased
Premises in good condition and shall perform all maintenance and make all
repairs and replacements to the structural and non-structural portions of the
Subleased Premises and of the Building of which the Subleased Premises are a
part (including, without limitation, the roof) and the equipment and systems
servicing the Subleased Premises on the date hereof (including, without
limitation, the plumbing, electrical, air-conditioning, heating and sprinkler
systems). In addition, Sublandlord shall perform and pay 100% of the amount
payable by Sublandlord, or to be performed by
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Sublandlord, under Article 10 of the GWC Lease, including, without limitation,
the following items: (i) sprinkler maintenance; (ii) snow removal; (iii) parking
area maintenance, including the fence and exterior lighting; (iv) landscaping
and (v) HVAC maintenance.
B. Subtenant shall perform all maintenance and make all repairs to all
equipment and systems installed by Subtenant in the Subleased Premises, subject
to the provisions set forth in this Section 10.
C. Except as provided herein, Subtenant shall pay the costs and
expenses arising from for all services ordered by Subtenant relating to
Subtenant's use of the Subleased Premises, including, without limitation,
rubbish removal and extermination.
11. Use. Subtenant shall use and occupy the Subleased Premises for the
warehousing and distribution of wearing apparel and accessories for Subtenant's
business and such other purposes as are permitted by the GWC Lease and for no
other purpose. Subtenant shall comply with the certificate of occupancy relating
to the Subleased Premises and with all laws, statutes, ordinances, orders,
rules, regulations and requirements of all federal, state and municipal
governments and the appropriate agencies, officers, departments, boards and
commissions thereof, and the board of fire underwriters or the fire insurance
rating organization or similar organization performing the same or similar
functions, whether now or hereafter in force, applicable to the Subleased
Premises.
12. Failure to Deliver Possession. A. Subject to Article 29, Sublandlord
shall deliver possession of the Subleased Premises to Subtenant on the
Commencement Date, as the same may be extended due to force majeure, as
hereinafter defined (the "Delivery Date"). If Sublandlord is unable to vacate
and deliver possession of any portion of the Subleased Premises on the
Commencement Date, by reason of strike or labor troubles, government preemption
in connection with a National Emergency, any rule, order or regulation of any
department or subdivision thereof of any government agency, the conditions of
supply and demand which have been or are affected by war or other emergency, or
any other cause whatsoever beyond Sublandlord's reasonable control (any of the
foregoing being a "force majeure"), then the Commencement Date shall be deemed
to be extended by the length of time such force majeure shall continue.
Sublandlord shall use reasonable efforts to minimize the effects of any force
majeure.
B. Subject to the provisions of subsection (a) above, if Sublandlord is
unable to give possession of the Subleased Premises on or before the Delivery
Date for any reason, Sublandlord shall not be subject to any liability for
failure to give possession on or before said date and the validity of this
Sublease shall not be impaired under such circumstances, but the Commencement
Date shall be postponed until the date on which the Subleased Premises are
delivered to Subtenant. Notwithstanding anything to the contrary contained
herein, if Sublandlord has not
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delivered possession of the Subleased Premises to Subtenant within 60 days of
the date hereof, Subtenant shall have the right to cancel this Sublease by
notice to Sublandlord whereupon Sublandlord shall return to Subtenant the
Security Deposit together with any interest thereon and any other amounts
theretofore paid by Subtenant to Sublandlord.
13. Condition of Subleased Premises. A. Without limiting the provisions of
Section 10 hereof, Subtenant is leasing the Subleased Premises "AS IS" and
Sublandlord shall have no obligation to furnish, render or supply any work,
labor, services, material, fixtures, equipment or decorations to make the
Subleased Premises ready for Subtenant's occupancy except as herein provided. In
making this Sublease, Subtenant has relied solely on such investigations,
examinations and inspections as Subtenant has chosen to make. Subtenant
acknowledges that Sublandlord has afforded Subtenant the opportunity for full
and complete investigations, examinations, and inspections. Sublandlord shall
remove all of its personal property from the Subleased Premises other than the
items described on Exhibit C attached hereto and made a part hereof. Such items
shall be in "as-is" condition, shall be maintained by Subtenant at its sole cost
such property shall remain the property of Sublandlord, except for the apparel
racking and conveyor system which is the property of GWC and which Subtenant is
using pursuant to Article 37 of the GWC Lease.
B. Sublandlord represents to Subtenant that no filing with the New
Jersey Department of Environmental Protection or any other agency having
jurisdiction under ISRA, is required as a result of this Sublease.
14. Indemnity. A. Subtenant shall indemnify, defend and hold harmless
Sublandlord from and against all losses, costs, damages, expenses and
liabilities, including, without limitation, reasonable attorneys' fees, which
Sublandlord may incur or pay out by reason of (a) any accidents, damages or
injuries to persons or property occurring in, on or about the Subleased Premises
(unless the same shall have been caused by Sublandlord's negligence), (b) any
breach or default hereunder on Subtenant's part, (c) any work done in or to the
Subleased Premises (except for any work done in the Subleased Premises by
Sublandlord) or (d) any act, omission or negligence on the part of Subtenant,
its officers, employees, agents, customers or invitees, or any person claiming
through or under Subtenant. The provisions hereof shall survive the expiration
or sooner termination of this Sublease.
B. Sublandlord shall indemnify, defend and hold harmless Subtenant from
and against all losses, costs, damages, expenses and liabilities, including,
without limitation, reasonable attorneys' fees, which Subtenant may incur or pay
out by reason of (a) any accidents, damages or injuries to persons or property
occurring in, on or about the portions of the G-III Premises occupied by
Sublandlord (unless the same shall have been caused by Subtenant's negligence)
or (b) any work done in or to the Subleased Premises (except for any work done
in the Subleased Premises by Subtenant). The provisions hereof shall survive the
expiration or sooner termination of this Sublease.
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15. Releases. Subtenant hereby releases GWC and the Overlandlord or anyone
claiming through or under the Overlandlord by way of subrogation or otherwise to
the extent that Sublandlord released GWC and the Overlandlord from liability or
responsibility pursuant to the provisions of the GWC Lease, and Subtenant will
cause its insurance carriers to include any clauses or endorsements in favor of
GWC which Sublandlord is required to provide pursuant to the provisions of the
GWC Lease.
16. Consents and Approvals. In any instance when Sublandlord's consent or
approval is required under this Sublease, Sublandlord's refusal to consent to or
approve any matter shall be deemed reasonable if such consent or approval has
not been obtained from GWC under the GWC Lease or the Overlandlord, provided,
however, that if the consent of GWC and the Overlandlord for any request shall
be obtained, the consent of Sublandlord shall be deemed to be given for such
request. Sublandlord shall use diligent efforts to obtain the consent of GWC and
the Overlandlord to such matters as Subtenant may request. If Subtenant shall
seek the approval by or consent of Sublandlord and Sublandlord shall fail or
refuse to give such consent or approval, then, provided such failure or refusal
is not in bad faith, Subtenant shall not be entitled to any damages for any
withholding or delay of such approval or consent by Sublandlord, it being
intended that Subtenant's sole remedy shall be an action for injunction or
specific performance and that said remedy of an action for injunction or
specific performance shall be available only in those cases where Sublandlord
shall have expressly agreed in writing not to unreasonably withhold or delay its
consent.
17. Termination of GWC Lease or Main Lease. Subject to Sections 5 and 30
of this Sublease, if for any reason (i) the term of the Main Lease shall
terminate prior to the expiration date of this Sublease or (ii) the term of the
GWC Lease shall terminate by reason of the termination of the Main Lease or for
any reason other than the negligence or wrongful acts or default of Sublandlord
under the GWC Lease or this Sublease, then this Sublease shall thereupon be
terminated and Sublandlord shall not be liable to Subtenant by reason thereof.
18. Environmental. Sublandlord represents that Sublandlord has not received
any notices of any violations of any Laws (as such term is defined in the GWC
Lease) nor is Sublandlord aware of the existence of any environmental
contamination in the Subleased Premises which constitutes a violation of the
Laws as of the date hereof.
19. Signage. Subtenant shall have the use of the existing sign at the
Subleased Premises and Subtenant may change such sign to display Subtenant's
name thereon provided that Subtenant complies with all of the obligations of
Sublandlord for such sign under the GWC Lease.
20. Alterations. Subtenant shall not make or cause, suffer or permit the
making of any alteration, addition, change, replacement, installation or
addition in
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or to the Subleased Premises without obtaining the prior consent of Sublandlord
in each instance, except in accordance with Section 9(b) of the GWC Lease and
Section 6 of the Main Lease; provided that if the consent of GWC and the
Overlandlord to the foregoing shall not be required under the terms of the GWC
Lease or the Main Lease, respectively, then no such consent of Sublandlord shall
be required. Subtenant shall be obligated to maintain any such alteration,
addition, change, replacement, installation or addition at Subtenant's sole cost
and expense and Subtenant shall remove any of the same at the expiration of the
term hereof to the extent required by GWC or the Overlandlord pursuant to the
terms of the GWC Lease or the Main Lease, respectively.
21. Right to Cure Defaults. A. If Subtenant shall at any time fail to make
any payment or perform any other obligation of Subtenant hereunder, then
Sublandlord shall have the right, but not the obligation, without waiving or
releasing Subtenant from any obligations of Subtenant hereunder, to make such
payment or perform such other obligation of Subtenant in such manner and to such
extent as Sublandlord shall deem necessary, and in exercising any such right, to
pay any incidental costs and expenses, employ attorneys, and incur and pay
reasonable attorneys' fees. Subtenant shall pay to Sublandlord upon demand all
sums so paid by Sublandlord and all incidental costs and expenses of Sublandlord
in connection therewith, together with interest thereon at the rate of one
percent (1%) per calendar month or any part thereof or the then maximum lawful
interest rate, whichever shall be less, from the date of the making of such
expenditures.
B. If Sublandlord shall default in the payment of any Basic Rent under
the GWC Lease after any required notice and the expiration of any applicable
grace period, Subtenant shall have the right to pay such amount directly to GWC
and deduct such amount from the rent payable hereunder.
22. Brokerage. Sublandlord and Subtenant represents to the other that no
broker or other person had any part, or was instrumental in any way, in bringing
about this Sublease. Sublandlord or Subtenant shall pay, and shall indemnify,
defend and hold harmless the other from and against, any claims made by any
broker or other person for a brokerage commission, finder's fee, or similar
compensation, by reason of or in connection with this Sublease, and any loss,
liability, damage, cost and expense (including, without limitation, reasonable
attorneys' fees) in connection with such claims if such broker or other person
claims to have had dealings with such party or its representatives.
23. No Waiver. The failure of Sublandlord to insist in any one or more
cases upon the strict performance or observance of any obligation of Subtenant
hereunder or to exercise any right or option contained herein shall not be
construed as a waiver or relinquishment for the future of any such obligation of
Subtenant or any right or option of Sublandlord. Sublandlord's receipt and
acceptance of Fixed Rent or Additional Charges, or Sublandlord's acceptance of
performance of any other obligation by Subtenant, with knowledge of Subtenant's
breach of any provision of this Sublease, shall not be deemed a waiver of such
breach. No waiver by Sublandlord of any term,
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covenant or condition of this Sublease shall be deemed to have been made unless
expressed in writing and signed by Sublandlord.
24. Complete Agreement. There are no representations, agreements,
arrangements or understandings, oral or written, between the parties relating to
the subject matter of this Sublease which are not fully expressed in this
Sublease. This Sublease cannot be changed or terminated orally or in any manner
other than by a written agreement executed by both parties.
25. Successors and Assigns. The provisions of this Sublease, except as
herein otherwise specifically provided, shall extend to, bind and inure to the
benefit of the parties hereto and their respective personal representatives,
heirs, successors and permitted assigns. In the event of any assignment or
transfer of the leasehold estate under the GWC Lease, pursuant to an arms-length
transaction, the transferor or assignor, as the case may be, shall be and hereby
is entirely relieved and freed of all obligations under this Sublease.
26. Notices. All communications and notices hereunder shall be in writing
and shall be deemed given when delivered by hand or by certified mail, return
receipt requested, addressed as follows or to such other address as either party
may notify the other in accordance with the provisions hereof.
To Sublandlord:
G-III Apparel Group, Ltd.
345 West 37th Street
New York, New York 10018-4202
Attn: Mr. Alan Feller
- with a copy to -
Fulbright & Jaworski L.L.P.
666 Fifth Avenue
New York, New York 10103
Attn: Neil Gold, Esq.
To Subtenant:
Europe Craft Imports, Inc.
15 Enterprise Avenue
Secaucus, New Jersey
-11-
- with copies to -
Herrick, Feinstein L.L.P.
2 Park Avenue
New York, New York 10016
Attn: Carl F. Schwartz, Esq.
and
Europe Craft Imports, Inc.
475 Fifth Avenue
3rd Floor
New York, New York 10016
Attn: Mr. Charles Ramat
All notices except notice of change of address shall be deemed given when
sent, and notice of change of address shall be deemed given when received.
27. Insurance Policies. Whenever any insurance coverage is required to be
obtained or maintained by Sublandlord under Section 15 of the GWC Lease,
Subtenant shall obtain and maintain such insurance coverage with respect to the
Subleased Premises only, naming as insureds thereunder GWC, Sublandlord and
Subtenant, as their respective interests may appear, and any other party
required to be named under the provisions of the GWC Lease.
28. Interpretation. Irrespective of the place of execution or performance,
this Sublease shall be governed by and construed in accordance with the laws of
the State of New Jersey. If any provision of this Sublease or the application
thereof to any person or circumstance shall, for any reason and to any extent,
be invalid or unenforceable, the remainder of this Sublease and the application
of that provision to other persons or circumstances shall not be affected but
rather shall be enforced to the extent permitted by law. The table of contents,
captions, headings and titles, if any, in this Sublease are solely for
convenience of reference and shall not affect its interpretation. This Sublease
shall be construed without regard to any presumption or other rule requiring
construction against the party causing this Sublease to be drafted. If any words
or phrases in this Sublease shall have been stricken out or otherwise
eliminated, whether or not any other words or phrases have been added, this
Sublease shall be construed as if the words or phrases so stricken out or
otherwise eliminated were never included in this Sublease and no implication or
inference shall be drawn from the fact that said words or phrases were so
stricken out or otherwise eliminated. Each covenant, agreement, obligation or
other provision of this Sublease shall be deemed and construed as a separate and
independent covenant of the party bound by, undertaking or making same, not
dependent on any other provision of this Sublease unless otherwise expressly
provided in this Sublease. All terms and words used in this Sublease, regardless
of the number or gender in which they are used, shall be deemed to include any
other number and any other gender as the context may
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require. The word "person" as used in this Sublease shall mean a natural person
or persons, a partnership, a corporation or any other form of business or legal
association or entity.
29. Consents. This Sublease shall have no effect until GWC and the
Overlandlord shall have given their respective written consents (the "Consents")
hereto in a form reasonably satisfactory to Subtenant. Sublandlord shall use its
best efforts to obtain the Consents and shall pay all costs, including legal
fees, charged by GWC or the Overlandlord for the review hereof and the granting
of the Consents. If despite such best efforts, the Consents are not given within
sixty (60) days after the date hereof (a) Sublandlord shall not be obligated to
take any further action to obtain such consent, and (b) this Sublease shall be
deemed null and void and of no effect.
30. Non-disturbance Agreements. Simultaneously with the request for the
Consents, Sublandlord shall use its best efforts to obtain from GWC and the
Overlandlord Non-Disturbance Agreements in a form substantially similar to the
form of Exhibit H to the GWC Lease, for Subtenant under this Sublease with such
modifications thereto as Subtenant may reasonably request (including, without
limitation, the right to assert against the new landlord Subtenant's defenses
against Sublandlord). Sublandlord's use of best efforts shall in no event
include the requirement that Sublandlord commence any litigation or similar
proceeding or incur any expenses in excess of those expenses incurred in
obtaining the Consents. If despite such best efforts, the Non-Disturbance
Agreements are not delivered to Subtenant within 60 days from the date hereof
(a) Sublandlord shall not be obligated to take any further actions to obtain
such Non-Disturbance Agreements and (b) unless this condition shall be waived by
Subtenant, this Sublease shall be deemed null and void and of no effect. It is
the intention of the parties that the provisions of this paragraph are intended
for the benefit of Subtenant only and Subtenant shall have the right to waive
the provisions of this paragraph.
31. Termination. Subtenant shall have the right to terminate this Sublease
at any time upon not less than six (6) months notice to Sublandlord, provided
that Subtenant shall not be in default in any of its monetary obligations
hereunder either at the time of the delivery of such notice or on the date of
the termination hereof.
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In Witness Whereof, Sublandlord and Subtenant have executed this
Sublease as of the day and year first above written.
S U B L A N D L O R D:
G-III APPAREL GROUP, LTD.
By: ________________________________
Name:
Title:
S U B T E N A N T:
EUROPE CRAFT IMPORTS, INC.
By: ________________________________
Name:
Title:
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EXHIBIT A
Description of the Subleased Premises
Copy of blueprint layout of subleased premises indicating layout,
dimensions and boundaries.
-15-
EXHIBIT B
Fixed Rent Payments
Annual
Fixed Rent Monthly Installments
---------- --------------------
$720,000 $60,000
-16-
EXHIBIT C
Personal Property to Remain in Subleased Premises
racking and conveyor systems
rails
trolleys
packaging tables
wooden pallets
alarm system
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FIRST AMENDMENT TO AGREEMENT OF SUB-SUBLEASE
This FIRST AMENDMENT TO AGREEMENT OF SUB-SUBLEASE (this "Agreement") dated
as of February 16, 1996, between G-III APPAREL GROUP, LTD., a Delaware
corporation having an office at 345 West 37th Street, New York, New York
10018-4202 ("Sublandlord") and EUROPE CRAFT IMPORTS, INC., a New Jersey
corporation, having an office 15 Enterprise Avenue, Secaucus, New Jersey
("Subtenant")
W I T N E S S E T H :
WHEREAS, Sublandlord and Subtenant have entered into a certain Agreement of
Sub-sublease dated as of December 27, 1995 (the "Sublease") for certain premises
(the "Subleased Premises") located at 15 Enterprise Avenue, Secaucus, New Jersey
as more particularly described in the Sublease;
WHEREAS, the Subleased Premises is a portion of the premises (the "G-III
Premises") subleased to Sublandlord by GWC Investments ("GWC") pursuant to a
certain Sublease Agreement dated March 9, 1990 as amended by a certain First
Amendment to Sublease Agreement dated December 21, 1993;
WHEREAS, the G-III Premises is a portion of the premises that were leased
to GWC by 15 Enterprise Avenue Associates, L.P. (the "Overlandlord") pursuant to
a certain Lease defined as the "Lease" under the GWC Lease; and
WHEREAS, Sublandlord and Subtenant desire to amend the Sublease to provide,
inter alia, for a reduction in the size of the Subleased Premises, on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. All capitalized terms used in this Agreement shall have the respective
meanings ascribed thereto in the Sublease unless otherwise defined herein.
2. The Subleased Space is hereby reduced by an area consisting of an
aggregate of approximately 3,800 square feet (the "G-III Storage Space") in two
locations in the warehouse space consisting of approximately 1,230 square feet
and 2,570 square feet, respectively, as more particularly shown in
cross-hatching on Exhibit A attached hereto. All references in the Sublease to
the Subleased Premises are deemed to be to the Subleased Premises reduced as set
forth in this Agreement.
3. The annual Fixed Rent payable under the Sublease is hereby reduced by
the amount of $22,800 from $720,000 to $697,200. Exhibit B to the Sublease is
hereby deleted in its entirety and Exhibit B hereto is hereby inserted in its
stead.
4. The following language shall be inserted in Section 1 of the Sublease
following the words "Paragraph 30, below": "or (iii) the delivery to Subtenant
of proof reasonably satisfactory to Subtenant that Sublandlord has obtained the
approval of HMDC to the occupancy by Subtenant of the Subleased Premises
(including, without limitation a certificate of continued occupancy)."
5. Section 9 of the Sublease is hereby amended by deleting the percentage
"96%" therefrom and inserting the percentage "93%" in its stead.
6. Prior to the Commencement Date, Sublandlord, at Sublandlord's sole cost
and expense, shall install all necessary barriers to separate the Subleased
Premises from the G-III Storage Space in accordance with (a) applicable laws and
regulations, including, without limitation, the regulations of the Hackensack
Meadowlands Development Commission ("HMDC") and (b) specifications reasonably
requested by Subtenant in order to provide adequate security for Subtenant's
property. Subtenant shall permit Sublandlord reasonable access to the 2,570
square foot portion of the G-III Storage Space located along the northerly wall
of the warehouse provided that Sublandlord shall indemnify and hold Subtenant
harmless for any damage to Subtenant's property arising from Sublandlord's
access to such space.
7. Immediately upon the execution and delivery hereof, Sublandlord shall
request that GWC and the Overlandlord give their respective written consents
hereto at the same time each of GWC and the Overlandlord give their respective
consents to the Sublease. Sublandlord shall obtain such consents in such a form
and in such time period as are specified in Section 29 of the Sublease. If the
consents required hereunder are not obtained by February 27, 1996, (a)
Sublandlord shall not be obligated to take any further action to obtain such
consent, and (b) this Agreement shall be deemed null and void and of no effect.
Subtenant hereby acknowledges that Subtenant has waived any right Subtenant may
have to terminate the Sublease arising from the failure of Sublandlord to obtain
a non-disturbance agreement from Overlandlord as required under Section 30
thereof.
8. Promptly upon the occurrence of the Commencement Date, Sublandlord
intends to apply to the HMDC for the necessary approval to operate the existing
outlet store at the G-III Premises as currently operated (including, without
limitation, maintaining the current size of the outlet store) without the
requirement that Sublandlord occupy any portion of the G-III Storage Space. If
Sublandlord shall obtain such approval, Sublandlord shall have the right to
terminate this Agreement (other than the provisions of Paragraph 4 above) at any
time upon not less than six (6) months' notice to Subtenant, whereupon (a) at
Subtenant's request, Sublandlord shall remove any barriers installed by
Sublandlord to separate the G-III Storage Space from
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the Subleased Premises and restore the Subleased Premises to its condition prior
to the installation of such barriers, (b) this Amendment shall be null and void,
(c) the Subleased Premises shall be deemed to include the G-III Storage Space
and (d) all of the terms and provisions of the Sublease shall govern thereafter.
9. Except as expressly supplemented by this Agreement, the terms and
provisions of the Sublease are hereby ratified and confirmed.
10. This Agreement shall be binding on all parties and their successors and
assigns and may not be modified or amended orally, but only in writing signed by
Sublandlord and Subtenant.
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this Agreement
as of the day and year first above written.
S U B L A N D L O R D:
G-III APPAREL GROUP, LTD.
By: ________________________________
Name:
Title:
S U B T E N A N T:
EUROPE CRAFT IMPORTS, INC.
By: ________________________________
Name:
Title:
-3-
EXHIBIT A
Description of the G-III Storage Space
-4-
EXHIBIT A
Description of the G-III Storage Space
Copy of blueprint floorplan of the G-III storage space, indicating
layout dimensions and property line.
EXHIBIT B
Fixed Rent Payments
Annual
Fixed Rent Monthly Installments
---------- --------------------
$697,200 $58,100
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