EXHIBIT 10.31
FIRST LEASE MODIFICATION AGREEMENT
THIS FIRST LEASE MODIFICATION AGREEMENT, made this 30th day of April, 1999
by and between IMPORT XXXXX ASSOCIATES, a New Jersey limited partnership, having
an office at 000 Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred
to as "Landlord") and XXXXXX A.S.L., LTD., (formerly known as Sassco
Fashions, Ltd.), a Delaware corporation having an office at 00 Xxxxx Xxx,
Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "Tenant").
WITNESSETH:
WHEREAS, by Agreement of Lease dated August 20, 1996 (the "Lease") Landlord
leased to Tenant's predecessor-in-interest, The Xxxxxx Xxxx Companies, Inc. and
The Xxxxxx Xxxx Companies, Inc. hired from Landlord 292,894 square feet of Floor
Space located at 00 Xxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx (hereinafter the "Demised
Premises"); and
WHEREAS, Landlord and Tenant wish to modify the Lease to reflect an increase
in the area of the Demised Premises and amend the Lea5e accordingly;
NOW, THEREFORE, for and in consideration of the Lease, the mutual covenants
herein contained and the consideration set forth herein, the parties agree as
follows:
1. Incorporation by Reference; Defined Terms: The foregoing "WHEREAS"
recitals and definitions contained therein are hereby incorporated into this
First Lease Modification Agreement. Capitalized terms used but separately
defined "in this First Lease Modification Agreement shall have their respective
meaning used in the Lease.
2. Additional Premises: That certain space located on the first floor and
mezzanine in the Building containing 91,649 square feet of Floor Space (as more
particularly shown cross-hatched on Exhibit A annexed hereto and made a part
hereof) (the "Additional Premises") is hereby added to and deemed a part of the
Demised Premises effective on the Additional Premises Commencement Date (as
hereinafter defined) for the balance of the Term. Effective as of the Additional
Premises Commencement Date, the term "Demised Premises" as used in the Lease, as
amended hereby, shall be deemed to include the Additional Premises, for a total
of 384,543 square feet of Floor Space. Said Additional Premises is being leased
in its "as is" condition, as of the date hereof, subject to the removal
therefrom by the existing tenant thereof of its personal property, including,
without limitation, the existing racks and racking system in the Additional
Premises. Landlord shall cause any damage to the Demised Premises resulting from
such removal to be repaired prior to the Additional Premises Commencement Date
and shall deliver the Additional Premises to Tenant in broom-clean condition.
Such repair shall be deemed performed for the purposes of the foregoing sentence
notwithstanding the fact that minor or insubstantial details of construction,
mechanical adjustment or decoration remain to be performed, the noncompletion of
which does not materially interfere with Tenant's use of the Demised Premises.
Landlord represents and warrants that the roof of the Building over the
Additional Premises is leak-free and that the mechanical, electrical, sanitary,
HVAC and other Building systems servicing the Additional Premises are currently
"in good working order, or alternatively, Landlord shall cause same to be
leak-free and/or in good working order, as the case may be, on or before the
Additional Premises Commencement Date. Landlord shall obtain any initial or
continued certificate of occupancy for the Additional Premises, after which the
terms and provisions of Section 4.02 of the Lease shall apply.
For the purposes hereof, "Additional Premises Commencement Date" shall mean
the date on which actual possession of the Additional Premises shall have been
delivered to Tenant by notice to Tenant. It is anticipated that the Additional
Premises Commencement Date shall occur not later than July 31, 1999. In no event
shall the Additional Premises Commencement Date occur before June 15,1999. If
the Additional Premises Commencement Date shall not have occurred by July 31,
1999, then thereafter Tenant shall have the right to cancel and terminate this
First Lease Modification Agreement, by notice given to Landlord, if
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at all, not later than August 2, 1999, and if Tenant shall give such notice,
then as of August 2, 1999, this First Lease Modification Agreement shall be
deemed null and void ab initio. For the purposes of the preceding sentence, and
notwithstanding anything to the contrary in Section 32.01 of the Lease, notice
shall be given, if at all, as follows: either via hand-delivery (with evidence
of receipt), or via telecopier to Landlord at 000-000-0000 or 000-000-0000,
Attention: Xxxxx X. Xxxxxxxx, General Counsel, with a copy to 000-000-0000,
Attention: Xxxxxx X. Christoph, Vice President/Leasing, with the hard copy to
follow for delivery not later than August 3, 1999 via nationally recognized
overnight courier service.
3. Fixed Rent: Fixed Rent for the Additional Premises will be at the rates
set forth in the Lease (i.e. for the period from the Additional Premises
Commencement Date through December 31, 2001 an amount at the annual rate of
$5.00 multiplied by the Floor Space of the Additional Premises; and for the
period from January 1, 2002 through the Expiration Date, an amount at the annual
rate of $5.75 multiplied by the Floor Space of the Additional Premises).
4. Tenant's Fraction: From and after the Additional Premises Commencement
Date, Tenant's Fraction shall be 95.73% (i.e., 384,543/401,678).
5. Tenant Parking: Effective as of the Additional Premises Commencement
Date, Paragraph R5 and the accompanying Exhibit G to the Lease shall be deemed
deleted and the following substituted therefor:
R5. Tenant shall have the right during the Term hereof to use all of the
parking spaces on the Land, except for those parking spaces within the area
outlined in red on the attached Exhibit "X".
6. Section 13.05 of the Lease is hereby deleted and the following
substituted therefor:
13.05. Neither party shall be liable or responsible for, and each party
hereby releases the other from, all liability and responsibility to the
other and any person claiming by, through or under the other, by way of
subrogation for any injury, loss or damage to any person or property in or
around the Demised Premises or to the other's business covered by insurance
carried or required to be carried hereunder irrespective of the cause of
such injury, loss or damage, and each party shall require its insurers to
include in all of such party's insurance policies which could give rise to a
right of subrogation against the other a clause or endorsement whereby the
insurer waives any rights of subrogation against the other or permits the
insured, prior to any loss, to agree with a third party to waive any claim
it may have against said third party without invalidating the coverage under
the insurance policy.
7. Section 32.01 of the Lease is hereby amended so as to permit notices to
be sent via reputable, nationally recognized overnight courier service for next
day delivery. Notices sent via such method shall be deemed to have been given,
rendered or made upon receipt or refusal of receipt.
8. Notwithstanding anything to contrary contained in Section 36.13, in no
event shall Tenant be responsible for any compliance with ISRA or any costs or
expenses of and to the extent of any required cleanup or clean-up plan where the
spills or discharges which create the need for such compliance, cleanup or plan
occurred prior to the Commencement Date (with respect to the initial Demised
Premises) or the Additional Premises Commencement Date (with respect to the
Additional Premises), as the case may be, unless such spill or discharge is
caused by Tenant's acts or action or those of its contractors, agents or
employees.
9. Tenant hereby represents and warrants to Landlord that it has full right,
power and authority to enter into the transactions provided for in this First
Lease Modification Agreement.
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Except as modified by this First Lease Modification Agreement, the Lease and
all covenants, agreements, terms and conditions thereof shall remain in full
force and effect and are hereby in all respects ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have caused this First Lease
Modification Agreement to be duly executed as of the day and year first above
written.
("Landlord")
IMPORT XXXXX ASSOCIATES
By: XXXXX MOUNTAIN INDUSTRIES, INC.
By: /s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
Executive Vice President
("Tenant")
XXXXXX A.S.L., LTD.
By: /s/ XXXXXX X. XXXXXXXXX
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Xxxxxx X. Xxxxxxxxx
Chief Operating Officer and Secretary
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