EXHIBIT 10.90
THIRD LEASE MODIFICATION AGREEMENT
THIS THIRD LEASE MODIFICATION AGREEMENT, made this 30th day of August,
1999, between XXXXX MOUNTAIN INDUSTRIES, INC., a New York corporation, having an
office at 000 Xxxxx Xxxxx, X.X. Xxx 0000, Xxxxxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as "Landlord") and XXXXXXX CHAUS, INC., a New York
corporation having an office at 000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as "Tenant").
WITNESSETH:
WHEREAS, by Agreement of Lease dated March 26, 1984, as amended by Lease
Modification Agreement dated March 15, 1994 and Second Lease Modification
Agreement dated September 29, 1995 (collectively, the "Lease"), Landlord leased
to Tenant and Tenant hired from Landlord approximately 206,000 square feet of
ground floor space and approximately 70,000 square feet of mezzanine space
located at 000 Xxxxxxxx Xxxx xx Xxxxxxxx, Xxx Xxxxxx;
WHEREAS, the Expiration Date of the Lease is currently scheduled to occur
on June 30, 2000; and
WHEREAS, Tenant failed to exercise its option to extend the Term of the
Lease; and
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EXHIBIT 10.90
WHEREAS, Landlord and Tenant have agreed to permit Tenant's continued lease
and occupancy of the Premises beyond the current Expiration Date of the Lease on
terms and conditions as are more fully set forth below.
NOW, THEREFORE, for and in consideration of the Lease, the mutual covenants
herein contained and the considerations set forth herein, the parties agree as
follows:
1. The parties agree that the Term of the Lease and Tenant's lease of the
subject Premises shall continue beyond the current Expiration Date for
a period of four (4) years commencing July 1, 2000 and continuing
through June 30, 2004. Tenant acknowledges that its continued lease
and occupancy of the Premises pursuant to the terms and conditions set
forth herein does not constitute the exercise of any option to extend
the Term provided for in the Lease.
2. Commencing as of July 1, 2000 and continuing until June 30, 2004, the
Fixed Rent shall be at an annual rate of Five and 90/100 Dollars
($5.90) per square foot multiplied by 206,000 square feet payable in
monthly installments of $101,283.33.
3. (A) Landlord agrees that if, at any time during the Term, the Building
located at 000 Xxxxxxxxxx Xxxxxx (the "105 Building") becomes
available for lease (other than new leases negotiated with the
existing tenant or extensions or renewals of leases with the existing
Tenant), Landlord shall, provided Tenant is not in default of this
Lease beyond any applicable grace or cure periods, first notify
Tenant, in writing, of such availability, which notice shall set
forth the rent, terms and other conditions upon which Landlord would
be willing to lease the 105 Building to Tenant ("Landlord's Notice").
Tenant shall have a period of fifteen (15) business days following the
giving of Landlord's Notice to notify Landlord, in writing, of its
election to enter into a lease for the 105 Building upon the rent,
terms and conditions set forth in Landlord's Notice. If Tenant shall
notify Landlord in writing of its election to enter into such lease as
tenant for the 105 Building within the said fifteen (15) business day
period, Landlord shall deliver and Tenant shall execute a lease
incorporating the rent, terms and conditions set forth in Landlord's
Notice to Tenant with respect to the 105 Building. Time is of the
essence with respect to Tenant's exercise of its rights hereunder.
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EXHIBIT 10.90
(B) If Tenant shall fail to notify Landlord in writing of its election
to enter into such lease for the 105 Building within the fifteen (15)
business day period referred to in subsection (A) hereof, then,
subject to subparagraph (F) hereinbelow, the right granted to Tenant
as set forth in subsection (A) of this section with respect to the 105
Building shall automatically terminate and come to and end.
(C) If Tenant shall not elect to lease the 105 Building under the
terms and conditions set forth in Landlord's Notice within the fifteen
(15) business day period following Landlord's Notice then, subject to
subparagraph (F) hereinbelow, Landlord may thereafter lease the 105
Building free of the restrictions herein stated;
(D) The right granted Tenant under this Paragraph 3 shall terminate
and become null and void upon the expiration or sooner termination of
this Lease.
(E) Reference is made to subparagraph 3(A) hereinabove. Landlord
hereby agrees that the "terms and conditions upon which Landlord will
be willing to lease the 105 Building to Tenant" shall be substantially
similar (with the exception of the Rent) to the terms and conditions
of the existing Lease.
(F) Landlord hereby agrees that notwithstanding the fact that (i)
Tenant elects not to lease the 105 Building as described in
subparagraph 3(C) hereinabove, or (ii) Tenant fails to respond to
Landlord's Notice within the fifteen (15) business day period as
described in subparagraph 3(B) above, if, and only in the event
Landlord determines that it shall lease 105 Building to a prospective
tenant at a Fixed Rent which is less than ninety-five percent (95%) of
the Fixed Rent offered to Tenant in Landlord's Notice (the "Lesser
Fixed Rent"), then, Tenant shall once again be entitled to notice
("Landlord's Second Notice") of the availability of the 105 Building
at the Lesser Fixed Rent in the same manner as in subparagraph 3(A)
above; upon giving Tenant Landlord's Second Notice, the provisions of
subparagraph 3(A), (B) and (C) above shall apply as if Landlord's
Second Notice were Landlord's Notice, provided, however, the time
periods in each instance shall be reduced to five (5) business days.
4. The Option to Extend the Term contained in Paragraph 9 of the Second
Lease Modification Agreement is hereby deleted.
5. Except as provided herein, all of the terms and conditions of the
Lease, as amended above are in full force and effect and are confirmed
as if fully set forth herein.
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EXHIBIT 10.90
IN WITNESS WHEREOF, the parties hereto have caused this Lease Modification
Agreement to be duly executed as of the day and year of first above written.
XXXXX MOUNTAIN INDUSTRIES, INC.
("Landlord")
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Executive Vice President
XXXXXXX CHAUS, INC.
("Tenant")
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
