Consent to Assignment and Assumption of Lease


                                                                                  Exhibit 10.2    

 

CONSENT
TO ASSIGNMENT AND ASSUMPTION OF LEASE




This
Consent to Assignment and Assumption of Lease (“Consent”) dated
as of March 11, 2005, is made by and among FIFTH AVENUE 58/59 ACQUISITION CO.
L.P. (“Landlord”), a
Delaware limited partnership, having an address at c/o Macklowe Management Co.,
Inc., 142 West 57th Street,
New York, New York 10019, ACTIVATED COMMUNICATIONS, INC. (“Assignor”), a
Delaware corporation, having an address at 767 Fifth Avenue, New York, New York
10019, and SOUTHERN UNION COMPANY (“Assignee”), a
Delaware corporation, having an address at One PEI Center, Wilkes-Barre, PA
18711.




WHEREAS,
by Agreement of Lease (the “Original
Lease”) dated
as of August 28, 2001 between Trump 767 Fifth Avenue, LLC (“Trump”)
(Landlord’s predecessor-in-interest), as landlord, and Assignor, as tenant,
Trump did demise and let to Assignor, and Assignor did hire and take from Trump,
a portion of the fiftieth (50th) floor
in the building known as 767 Fifth Avenue, New York, New York (the “Building”), said
premises being known as Unit 50D, as more particularly described in the Original
Lease (the “Demised
Premises”);
and




WHEREAS,
by Lease Assignment and Assumption dated September 30, 2004 (“Assignment
and Assumption”),
Assignor assigned the Lease to Assignee. The Original Lease, as amended by this
Consent, is hereinafter referred to as the “Lease”;
and




WHEREAS,
by this Consent, Tenant has requested Landlord’s consent to the Assignment and
Assumption; and




WHEREAS,
Landlord is willing to execute the Consent, subject to all of the terms and
provisions herein contained.




ACCORDINGLY,
in consideration of the mutual covenants herein contained, the parties agree as
follows:




1.  Landlord
hereby consents to the assignment of the Lease by Assignor to Assignee pursuant
to the Assignment and Assumption annexed hereto as Exhibit A, but subject to the
terms and provisions of this Consent.




2.  Assignor
and Assignee acknowledge and agree that the Lease expiration date is June 30,
2014.




3.  This
consent shall not be deemed a consent to the alteration of the Demised Premises,
to the subletting of all or any portion of the Demised Premises, or to the
further assignment of the Lease. Pursuant to the Lease, Landlord’s consent in
writing must be obtained prior to any further assignment of the Lease and prior
to any alteration or subletting of the Demised Premises.




4.  Assignee
hereby assumes all of the obligations of Assignor arising under the Lease from
and after the Commencement Date of the Lease and agrees to be bound by and to
perform all of the terms, covenants, agreements, provisions, and conditions of
the Lease on Assignor’s part to be performed or observed from and after the
Commencement Date of the Lease.




5.  This
Consent, the occupancy of the Demised Premises by Assignee, the assumption of
Assignor’s obligations by Assignee, and the acceptance of rent by Landlord from
Assignee shall not be deemed to be a waiver or release of any of the obligations
of Assignor under the Lease.




6.  The
liability of Assignor under the Lease, and the due performance by Assignor of
the obligations on its part to be performed under the Lease, shall not be
discharged, released or impaired in any respect by an agreement or stipulation
made by Landlord or any grantee or assignee of Landlord, by way of mortgage or
otherwise, extending the time of, or modifying or amending any of the
obligations contained in the Lease, or by any waiver or failure of Landlord to
enforce any of the obligations on Assignor’s part to be performed under the
Lease. If any such agreement or modification operates to increase the
obligations of Assignee, or any of its successors or permitted assigns, under
the Lease, the liability of Assignor or any of its successors in interest
(unless such party shall have expressly consented in writing to such agreement
or modification) shall continue to be no greater than if such agreement or
modification had not been made. To charge Assignor and its successors in
interest, no demand or notice of any default shall be required. Assignor for
itself and each of its successors in interest hereby expressly waive any such
demand or notice.




7.  Assignor
represents that, as of the date hereof, all of the obligations of Landlord under
the Lease have been complied with and performed by Landlord and any payments
required to be made by Landlord to Assignor under the Lease have been
made.




8.  Assignee
and Assignor each represents and warrants to Landlord that (a) the information
supplied to Landlord by each of Assignee and Assignor in connection with
obtaining this Consent (including, but not limited to, all summaries, financial
statements, notices, and other documents) is true and complete; (b) no
consideration has been or will be paid by Assignee for or in connection with the
assignment of the Lease or the sale of any furniture, furnishings, fixtures, or
improvements in the Demised Premises that has not been disclosed in the
Assignment and Assumption; and (c) Exhibit A is a complete and correct copy of
the Assignment and Assumption and that there are no other agreements between
them relating to the Assignment and Assumption, or the use or occupancy of the
Demised Premises or the furniture, furnishings fixtures, or improvements
therein. The representations and warranties contained in this paragraph shall be
deemed incorporated in the Lease and the inaccuracy of any of such
representations and warranties shall constitute a default under the Lease
entitling Landlord to exercise any or all of the remedies for default provided
in the Lease or otherwise available at law or in equity, provided, however, that
each of Assignor and Assignee shall be responsible only for its own
misstatements under clause (a) above.




9.  Any
notice, demand, consent, approval, disapproval, or statement (collectively,
“Notices”) given
under the Lease or under this Consent shall be given in accordance with the
terms of Article 31 of the Lease, except that such Notices, if given to
Landlord, shall be addressed to Landlord c/o Macklowe Management Co., Inc.,
Attn.: William S. Macklowe, 142 West 57th Street,
New York, New York 10019 with a copy to Macklowe Management Co., Inc., Attn.:
Jason Grebin, Esq., 142 West 57th Street,
New York, New York 10019, and if given to Assignor, shall be addressed to
Assignor only at its address first above set forth in this Consent and, if given
to Assignee, shall be addressed to Assignee at its address first set forth in
this Consent. Landlord, Assignor and Assignee each may designate a different
address for Notices to it in a Notice given to the other parties under this
Paragraph. This Consent shall not be effective until executed by each of
Landlord, Assignee and Assignor.




10.  This
Consent shall be governed and construed in accordance with New York Law without
regard to conflicts of law rules.




11.  Landlord
and Assignor confirm to Assignee that the Lease is in full force and effect.
Neither Landlord, Assignor nor Assignee is aware of any existing default by the
other under the Lease, nor of any event that would, after notice and/or the
passage of time, constitute a default by the other.




12.  Assignor
covenants to deliver to Landlord, contemporaneously with the delivery of this
Consent to Landlord, a check, subject to collection, made payable to the order
of Landlord, in the sum of $2,500.00, representing legal fees incurred by
Landlord in connection with the granting of this Consent. At Landlord's option,
the validity and enforceability of this Consent is expressly conditioned upon
Assignor delivering said check and the collection thereof.

























IN
WITNESS WHEREOF, this Consent has been executed as of the day and year first
above written.





	
      
	
      
	
      
	
                                              FIFTH
      AVENUE 58/59 ACQUISITION CO. L.P.




                               
By: Fifth Avenue 58/59 Acquisition Co. GP Corp.

 


	
      By:
	
      /s/
      William S. Macklowe

	 	
      William
      S. Macklowe, Vice President







                               
ACTIVATED COMMUNICATIONS, INC., Assignor





	
      By:
	
      /s/
      M. Schiehle

	
      Name:
	
      M.
      Schiehle

	
      Date:
	
      March
      11, 2005










                               
SOUTHERN UNION COMPANY, Assignee





	
      By:
	
      /s/
      George L. Lindemann

	
      Name:
	
      George
      L. Lindemann

	
      Date:
	
      March
      11, 2005