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FIRST AMENDMENT TO LEASE
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This FIRST AMENDMENT TO LEASE (hereinafter called "First Amendment") is
made and entered into as of the 18th day of November, 1999 by and between EBS
BUILDING, L.L.C., a Delaware limited liability company ("Landlord"), and EDISON
BROTHERS STORES, INC., a Delaware corporation ("Tenant").
WITNESSETH:
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WHEREAS, Landlord and Tenant entered into a certain Standard Office
Lease dated September 30, 1998 (the "Lease") for certain premises (as more fully
described therein, the "Premises") located in the building known and numbered as
000 Xxxxx Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx; and
WHEREAS, on March 9, 1999, Tenant commenced voluntary reorganization
proceedings under Chapter 11 of the United States Bankruptcy Code in the United
States Bankruptcy Court for the District of Delaware (Case No. 99-529 (MFW));
WHEREAS, in connection with Tenant's assumption of the Lease pursuant
to Section 365 of the United States Bankruptcy Code, Tenant desires to surrender
certain portions of the Premises and Landlord is willing to accept the vacation
and surrender of said space and to terminate the Lease with respect thereto as
hereinafter provided;
WHEREAS, words and phrases having defined meanings in the Lease shall
have the same respective meanings when used herein, unless otherwise expressly
defined herein; and
WHEREAS, Landlord and Tenant desire to amend said Lease as hereinafter
set forth;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Section 1.5 of the Lease is hereby amended in its entirety to read
as follows:
1.5 LEASE COMMENCEMENT DATE: October 1, 1998
RENT COMMENCEMENT DATE: October 1, 1998
LEASE EXPIRATION DATE: March 31, 2000, subject to Section 3.1.
2. Section 1.6 of the Lease is hereby amended in its entirety to read
as follows:
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1.6 TERM: One (1) year and six (6) months, subject to Section 3.1.
3. Section 1.8 of the Lease is hereby amended in its entirety to read as
follows:
1.8 PREMISES: Through and including November 30, 1999, approximately
206,450 rentable square feet in the Building as depicted in Exhibit A
of this Lease; Rentable Area shall be 193,442 square feet, which
equals the Premises less the mezzanine areas as shown on Exhibit A.
Commencing on December 1, 1999 and through and including December 31,
1999, the Premises shall constitute approximately 28,774 rentable
square feet in the Building as depicted in Exhibit A-1 of this Lease;
Rentable Area shall be 25,187 square feet, which equals the Premises
less the mezzanine areas as shown on Exhibit A-1. Commencing on
January 1, 2000, the Premises shall constitute approximately 18,587
rentable square feet in the Building as depicted on Exhibit A-2 of
this Lease; Rentable Area shall be 15,000 square feet, which equals
the Premises less the mezzanine areas as shown on Exhibit A-2.
4. Section 1.9 of the Lease is hereby amended in its entirety to read as
follows:
1.9 SUITE NUMBER: N/A, FLOOR NUMBERS: Through and including November 30,
1999, Floors Two, Three, Four and Five, part of Floor One, and the
mezzanine levels of Floors One and Two. Commencing on December 1, 1999
and through and including December 31, 1999, Floor Two and the
mezzanine level of Floor Two. Commencing on January 1, 2000, part of
Floor Two (as described in Section 1.8 above) and the mezzanine level
of Floor Two.
5. Section 1.11 of the Lease is hereby deleted in its entirety to read as
follows:
1.11. ANNUAL BASE RENT AND MONTHLY BASE RENT INSTALLMENT: From the Rent
Commencement Date through and including November 30, 1999, Annual Base
Rent shall be $9.00 per square foot of Rentable Area per year; from
December 1, 1999 through March 31, 2000 (and thereafter during any
permitted period of month to month tenancy pursuant to Section 3.1
below), Annual Base Rent shall be $17.00 per square foot of Rentable
Area per year. Monthly Rent Installments shall be the amount of Annual
Base Rent divided by 12.
6. Section 1.14 of the Lease is hereby amended in its entirety to read as
follows:
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1.14 TENANT'S PROPORTIONATE SHARE: Through November 30, 1999, 44.56%;
commencing on December 1, 1999 through and including December 31,
1999, 5.80%; and commencing on January 1, 2000 and thereafter, 3.46%.
7. Section 1.17 of the Lease is hereby amended in its entirety to read as
follows:
1.17 NUMBER OF PARKING SPACES: RESERVED: 68 spaces on Xxxxx X-0 of the
garage in the Building, as depicted on Exhibit I-1 hereto, subject to
adjustment pursuant to Section 23.19 of this Lease. Effective January 1,
2000 the number of spaces on Xxxxx X-0 of the garage in the Building is
hereby reduced to thirty five (35), as depicted on Exhibit I-2 hereto,
subject to adjustment pursuant to Section 23.19 of this Lease. UNRESERVED:
107 spaces in the garage owned and operated by the Land Clearance for
Redevelopment Authority of the City of St. Louis and located on City Block
118 in the City of St. Louis (the "St. Louis Centre Garage"). Effective
December 1, 1999, the number of spaces in the St. Louis Centre Garage is
hereby reduced to zero.
8. Section 3.1 of the Lease is hereby amended by adding a new
grammatical paragraph at the end thereof to read as follows:
Unless this Lease shall have earlier terminated as provided herein and
unless Landlord shall have delivered to Tenant, on or before March 1, 2000,
a written notice of termination in respect of this Lease, and as long as
Tenant is not in default hereunder, after notice and opportunity to cure to
the extent provided in Article 17, this Lease shall not terminate, but
shall instead create a month-to-month tenancy for Tenant with regard to the
Premises commencing on April 1, 2000 on the same terms and conditions as
herein provided. This Lease may thereafter be terminated by Tenant upon
delivery of not less than thirty (30) days prior written notice of such
termination, but in any event such period of month to month tenancy
pursuant to this paragraph shall not extend beyond June 30, 2000.
9. Effective January 1, 2000, Section 3.3 of the Lease is hereby
amended in its entirety to read as follows:
3.3 BUILDING PLANNING. If, during the Term, Landlord requires the
Premises for use in conjunction with another suite or for other
reasons connected with the Building planning program, upon
notifying Tenant in writing, Landlord shall have the right to
move Tenant to other space in the Building which is comparable in
size to the then existing Premises, at Landlord's sole cost and
expense, and the terms and conditions of this Lease shall remain
in full force and effect, save and excepting that a revised
Exhibit A shall become part of this Lease and shall reflect the
location of the new space and Article 1 of this Lease shall be
amended to include all correct data as to the new space. In order
to be effective, any
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such notice delivered by Landlord shall contain the following
legend: "This notice constitutes a request for relocation
delivered pursuant to Section 3.3 of the Lease between EBS
Building, L.L.C. and Edison Brothers Stores, Inc." If the new
space does not meet with Tenant's reasonable approval, Tenant
shall have the right to cancel this Lease upon giving Landlord
thirty (30) days' written notice within ten (10) days after
receipt of Landlord's notification.
10. Article 10 of the Lease is hereby amended by replacing the phrase
"(f) during the last six (6) months of the Term to exhibit the Premises to
prospective lessees upon reasonable notice to Tenant;" with the phrase "(f) at
any time during the remainder of the Term to exhibit the Premises to prospective
lessees upon reasonable notice to Tenant;".
11. Article 15 of the Lease is hereby amended in its entirety to read
as follows:
ARTICLE 15
HOLDING OVER
Except as otherwise provided in Section 3.1, if Tenant without the
consent of Landlord retains possession of the Premises or any part thereof
after termination of the Term, Tenant shall pay to Landlord Rent at a rate
equal to two hundred fifty percent (250%) of the Rent payable for the month
immediately preceding the commencement of said holding over computed on a
per month basis for each month or part thereof (without reduction for any
partial month) that Tenant remains in possession, and in addition thereto,
Tenant shall pay Landlord all direct and consequential damages sustained by
reason of Tenant's retention of possession. Such retention of possession
shall constitute a month to month lease terminable in accordance with law.
12. Section 23.19 of the Lease is hereby amended in its entirety to
read as follows:
23.19. PARKING SPACES: Tenant shall have the use of the number of
reserved parking spaces in the Building parking garage as set forth in
Article 1 hereof and shown on Exhibit I-1 on a 24 hour basis. Landlord
shall xxxx such spaces as "reserved" but shall have no obligation to
monitor the use of such spaces and the location of such spaces may be
changed by Landlord from time to time. From and after December 1, 1999, the
number of parking spaces made available to Tenant in the garage in the
Building through December 31, 1999 may be reduced, at Landlord's option, to
thirty five (35) spaces upon one (1) weeks prior written notice from
Landlord to Tenant. Landlord and Tenant hereby acknowledge that, following
the exercise of such option by Landlord, ten (10) of the parking spaces in
the Building garage then to be provided to Tenant are considered "double"
parking spaces (by length or by width) and the same shall be counted as two
(2) parking spaces to Tenant under this Lease. The other fifteen
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(15) spaces in the Building garage are "single" spaces. Landlord's notice
shall specify the spaces to be surrendered by Tenant upon exercise of such
option.
Subject to the continued effectiveness of the Parking Lease (as
defined below), Tenant shall have the use of the number of unreserved
parking spaces in the St. Louis Centre Garage as set forth in Article 1
hereof during Normal Business Hours and upon payment of the Monthly Rent
therefor set forth in Article 1 for such space(s), which Monthly Rent may
be changed by Landlord upon thirty (30) days advance written notice given
to Tenant to a rate not exceeding the lowest published (or otherwise
objectively verifiable) monthly rate in the St. Louis Centre Garage, but in
any event not lower than the rate for such spaces charged by the LCRA to
the Landlord pursuant to the Parking Lease. On November 30, 1999, Tenant
shall surrender 107 parking spaces in the St. Louis Centre Garage.
Unless Landlord shall have previously exercised its option to reduce
the number of parking spaces made available to Tenant in the Building
garage to thirty five (35) as set forth in the second preceding grammatical
paragraph, concurrent with the vacation and surrender of the Vacated
Premises by Tenant pursuant to Article 24 hereof Tenant shall surrender
thirty three (33) reserved parking spaces on Xxxxx X-0 of the garage in the
Building. Tenant shall then have the use of ten (10) "double" spaces and
fifteen (15) "single" spaces (for a total of thirty five (35) spaces). The
number of parking spaces made available to Tenant in the Building garage
from and after January 1, 2000 may be reduced, at Landlord's option, to
fifteen (15) "single" spaces upon one (1) weeks prior written notice from
Landlord to Tenant. The location of parking spaces made available to Tenant
from and after January 1, 2000 may be changed by Landlord from time to time
by delivery of written notice to Tenant.
13. Article 24 of the Lease is hereby amended in its entirety to read
as follows:
VACATION OF PORTION OF SECOND FLOOR SPACE
On or prior to December 31, 1999, Tenant shall vacate and surrender
that portion of the second floor of the Building designated on Exhibit A-2
of this Lease (the "Vacated Premises"). The Vacated Premises shall be
vacated and surrendered by Tenant in compliance with the provisions of
Article 16 of this Lease (and this Lease shall thereafter terminate with
respect to such space).
14. Article 26 of the Lease is amended in its entirety to read as
follows:
OPTION TO CAUSE EARLY SURRENDER OF SPACE
Landlord shall have the right to cause Tenant to vacate and
surrender to Landlord (and thereby effect the termination of this Lease
as to such vacated and
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surrendered portion of the Premises) any of Floors One, Three, Four
and Five of the Building on November 15, 1999. Thereafter, such
Floor(s) shall no longer constitute part of the Premises and Tenant
shall have no right to use or occupy such space. Landlord may exercise
the foregoing right by giving Tenant seven (7) days prior written
notice, which notice shall specify the Floor or Floors to be vacated
by Tenant. Concurrent with Tenant's vacation of any such space,
Landlord and Tenant shall enter into an amendment to this Lease in
form and substance satisfactory to Landlord to reflect the adjustment
to the dimensions of the Premises, the corresponding reduction of
rental amounts owed by Tenant at the then applicable annual rental
rate, and Tenant's Proportionate Share. Any space so vacated and
surrendered by Tenant shall be vacated and surrendered in compliance
with the provisions of Article 16 of this Lease (and this Lease shall
terminate with respect to such space).
15. Exhibit A to the Lease is hereby deleted and Exhibits A, A-1 and
A-2 attached to this Amendment are substituted therefor.
16. Exhibit I to the Lease is hereby deleted and Exhibits I-1 and I-2
attached to this Amendment are substituted therefor.
17. Miscellaneous.
a. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original and all such counterparts, taken together,
shall constitute but one and the same instrument. Facsimile signatures on any
counterpart shall be effective as an original signature, but the parties hereto
agree to deliver to the other original signatures within thirty (30) days after
the date of this Amendment.
b. Except as expressly amended and modified hereby, all of the terms
and provisions of this Lease shall remain unchanged and in full force and effect
and are hereby ratified and confirmed.
c. This Amendment shall inure to the benefit of the parties hereto and
their respective successors and assigns.
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IN WITNESS WHEREOF, Landlord and Tenant have respectively signed this
First Amendment to Indenture of Lease as of the day and year first written
above.
LANDLORD:
EBS BUILDING, L.L.C.
By: PricewaterhouseCoopers LLP, as Manager
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Partner
Date: November 18, 1999
TENANT:
EDISON BROTHERS STORES, INC.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Senior Vice President
Date: November 15, 1999
