EXHIBIT 10.5
AMENDMENT TO A LEASE FOR A DISTRIBUTION CENTER AND CORPORATE
HEADQUARTERS FACILITY BETWEEN THE COMPANY AND XXXXX MOUNTAIN ASSOCIATES,
DATED NOVEMBER 20, 1998.
LEASE MODIFICATION AGREEMENT
THIS LEASE MODIFICATION AGREEMENT, made this 20th day of November, 1998
by and between XXXXX MOUNTAIN ASSOCIATES, a New Jersey partnership, having an
office at 000 Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to
as "Landlord") and THE CHILDREN'S PLACE RETAIL STORES, INC., a Delaware
corporation having an office at Xxx Xxxxx Xxxxx, Xxxx Xxxxxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as "Tenant").
WITNESSETH:
WHEREAS, by Agreement of Lease dated June 30, 1998 (the "Lease")
Landlord leased to Tenant and Tenant hired from Landlord the building and
premises known as 000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx (hereinafter the
"Demised Premises"); and
WHEREAS, Landlord and Tenant wish to modify the Lease to extend the
term thereof and amend the Lease 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. This shall confirm that the "Commencement Date" as defined in
Section 1.01J of the Lease occurred on October 1, 1998.
2. The Term of the Lease is hereby extended from January 31, 2004
through and including January 31, 2007. Accordingly, the date "January 31, 2004"
appearing in the definition of "Expiration Date" under Section 1.01N is hereby
deleted and "January 31, 2007" substituted therefor.
3. Section 1.01O Fixed Rent is hereby amended and restated as follows:
O. Fixed Rent: Commencing on the Commencement Date through the date
which is the day before the second anniversary of the Commencement
Date, an amount at the annual rate of Five and 25/100 Dollars ($5.25)
multiplied by the number of square feet of Floor Space; from the second
anniversary of the Commencement Date through January 31, 2004, an
amount at the annual rate of Five and 50/100 Dollars ($5.50) multiplied
by the number of square feet of Floor Space of the Demised Premises;
and from and including February 1, 2004 through the January 31, 2007,
an amount at the annual rate of Six and 25/100 Dollars ($6.25)
multiplied by the number of square feet of Floor Space of the Demised
Premises
1
4. Section R2 of the Lease is hereby amended and restated as follows:
R2. Provided Tenant is in not in default under this Lease beyond any
applicable notice and/or cure periods, if any, and provided Tenant has
not assigned (other than to a permitted assignee under Section R6) this
Lease or sublet all or any portion of the Demised Premises and is
itself (or its permitted assignee as contemplated in Section R6) in
occupation and conducting business in the whole of the Demised Premises
in accordance with the terms of this Lease, Tenant expressly
acknowledging and agreeing that the option right contained herein is
personal to the original named Tenant (or its permitted assignee as
contemplated in Section R6), Tenant shall have one (1) option to extend
the Term of its lease of the Demised Premises, from the date upon which
this Lease would otherwise expire for one extended period of three (3)
years (herein referred to as an "Extended Period"), upon the following
terms and conditions:
1. If Tenant elects to exercise said option, it shall do so by
giving notice of such election to Landlord on or before the
date which is nine (9) months before the beginning of the
Extended Period. Tenant agrees that it shall have forever
waived its right to exercise any such option if it shall fail
for any reason whatsoever to give such notice to Landlord by
the time provided herein for the giving of such notice,
whether such failure is inadvertent or intentional, time being
of the essence as to the exercise of such option.
2. If Tenant elects to exercise said option, the Term shall be
automatically extended for the Extended Period without
execution of an extension or renewal lease. Within ten (10)
days after request of either party following the effective
exercise of such option, however, Landlord and Tenant shall
execute, acknowledge and deliver to each other duplicate
originals of an instrument in recordable form confirming that
such option was effectively exercised.
3. The Extended Period shall be upon the same terms and
conditions as are in effect immediately preceding the
commencement of such Extended Period; provided, however, that
Tenant shall have no right or option to extend the Term for
any period of time beyond the expiration of the Extended
Period and, provided further, that in the Extended Period the
Fixed Rent during the Extended Period shall be at ninety-five
percent (95%) of Fair Market Value ("FMV"). FMV shall be
determined by mutual agreement of the parties. If the parties
are unable to agree on the FMV within thirty (30) days of
Tenant's exercise of its option, the parties shall choose a
licensed Real Estate Appraiser who shall determine the FMV.
The cost of said Real Estate Appraiser shall be borne equally
by the parties. If the parties are unable to agree on a
licensed Real Estate Appraiser within forty-five (45) days of
Tenant's exercise of its option, each party shall select one
Appraiser to appraise the FMV. All appraisals shall be
rendered within thirty (30) days of appointment of the
respective Appraiser appointed under this paragraph. If the
difference between the two appraisals is 20% or less of the
lower appraisal, then the FMV shall be the average of the two
appraisals. If the difference between the two appraisals is
greater than 20% of the lower appraisal, the two Appraisers
shall select a third licensed Real Estate Appraiser to
appraise the FMV. The FMV shall in such case be the average of
the three appraisals. The cost of the third appraisal shall be
borne equally by the parties.
Anything to the contrary contained herein notwithstanding, the
Fixed Rent for the Extended Period shall not be less than the
Fixed Rent for the period immediately preceding the Extended
Period for which the Fixed Rent is being calculated.
4. Any termination, expiration, cancellation or surrender of
this Lease shall terminate any right or option for the
Extended Period not yet exercised.
5. Landlord shall have the right, for thirty (30) days after
receipt of notice of Tenant's election to exercise the option
to extend the Term, to reject Tenant's election if Tenant gave
such notice while Tenant was in default beyond any applicable
notice and/or cure periods, if any, in the performance of any
of its obligations under the Lease, and such rejection shall
automatically render Tenant's election to exercise such option
null and void and of no effect.
6. The option provided herein to extend the Term of the Lease
may not be severed from the Lease or separately sold, assigned
or otherwise transferred.
5. Provided Tenant is in not in default under the Lease beyond any
applicable notice and/or cure periods, if any, and provided Tenant has not
assigned (other than to a permitted assignee under Section R6) the Lease or
sublet all or any portion of the Demised Premises and is itself (or its
permitted assignee as contemplated in Section R6) in occupation and conducting
business in the whole of the Demised Premises in accordance with the terms of
this Lease, Tenant expressly acknowledging and
2
agreeing that the termination right contained herein is personal to the original
named Tenant (or its permitted assignee as contemplated in Section R6), Tenant
shall have the right to terminate the Lease effective as of January 31, 2004, by
giving written notice to Landlord to such effect not later than May 1, 2003.
Tenant's right to terminate as aforesaid and the effectiveness of Tenant's
termination notice, at Landlord's sole option, shall be conditioned upon (i)
there occurring on and after the exercise of the termination right herein
contained through and including January 31, 2004 no default by Tenant beyond any
applicable notice and/or cure period in the payment to Landlord of Fixed Rent
and/or Additional Charges accruing and due and payable during such period; and
(ii) payment by Tenant to Landlord of all Rent due to the date of termination.
Subject to the terms of the immediately preceding sentence, upon termination,
(i.e. January 31, 2004) the Lease shall be deemed terminated with the same
effect as if the effective date of such termination were the expiration date of
the Term. Tenant agrees that it shall have forever waived its right to exercise
the termination right herein contained if it shall fail for any reason
whatsoever to give such notice to Landlord by May 1, 2003, whether such failure
is inadvertent or intentional, time being of the essence as to the exercise of
such termination right.
6. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Lease
Modification Agreement to be duly executed as of the day and year first above
written.
XXXXX MOUNTAIN ASSOCIATES
BY: XXXXX MOUNTAIN INDUSTRIES, INC.
(Landlord)
By: /s/ Xxxxx X. Xxxxxxxx
----------------------
Xxxxx X. Xxxxxxxx
Executive Vice President
THE CHILDREN'S PLACE RETAIL STORES,
INC.,
(Tenant)
By: /s/ Xxxxxxx Xxxxxx
-------------------
Xxxxxxx Xxxxxx
President/Chief Operating
Officer
3
