EXHIBIT 10.2
LEASE AGREEMENT AS OF AUGUST 12, 2003 BETWEEN ORLANDO CORPORATION
AND THE CHILDREN'S PLACE (CANADA), LP. TOGETHER WITH, INDEMNITY
AGREEMENT AS OF AUGUST 12, 2003 BETWEEN THE COMPANY AND ORLANDO
CORPORATION. TOGETHER WITH, SURRENDER OF LEASE AS OF AUGUST 12, 2003
BETWEEN THE COMPANY AND ORLANDO CORPORATION AND ORION PROPERTIES LTD.
DATED: August 12, 2003
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B E T W E E N:
ORLANDO CORPORATION
- and -
THE CHILDREN'S PLACE (CANADA), LP
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LEASE
Regarding 6040 Cantay Road
Mississauga, Ontario
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ORLANDO CORPORATION
INDUSTRIAL LEASE
TABLE OF CONTENTS
SECTION
ARTICLE I - DEMISE AND TERM
Premises.................................................................................................. 1.01
Term...................................................................................................... 1.02
Early Access.............................................................................................. 1.03
Options to Extend......................................................................................... 1.04
Acceptance of Premises.................................................................................... 1.05
Quiet Enjoyment........................................................................................... 1.06
ARTICLE II - RENT
Intent of Lease........................................................................................... 2.01
Basic Rent................................................................................................ 2.02
Calculation of Basic Rent................................................................................. 2.03
Additional Rent........................................................................................... 2.04
Deposit................................................................................................... 2.05
Payments to Landlord...................................................................................... 2.06
Overdue Rent.............................................................................................. 2.07
Set-Off................................................................................................... 2.08
Review of Tenant's Financial Statements................................................................... 2.09
Pre-Authorized Bank Debit................................................................................. 2.10
ARTICLE III - TAXES
Taxes Payable by Tenant................................................................................... 3.01
Payment of Taxes.......................................................................................... 3.02
Appeal of Assessment ..................................................................................... 3.03
Separate Assessment....................................................................................... 3.04
ARTICLE IV - HEATING AND UTILITIES
Utility Charges........................................................................................... 4.01
Heating................................................................................................... 4.02
Service Contracts......................................................................................... 4.03
ARTICLE V - MAINTENANCE AND REPAIR
Maintenance, Repairs and Replacements..................................................................... 5.01
View and Repair .......................................................................................... 5.02
Alterations............................................................................................... 5.03
Removal of Fixtures and Improvements...................................................................... 5.04
Construction Liens........................................................................................ 5.05
Landlord to Maintain and Repair........................................................................... 5.06
Repairs on Termination.................................................................................... 5.07
ARTICLE VI - ASSIGNING AND SUBLETTING
Assigning or Subletting................................................................................... 6.01
Change of Control......................................................................................... 6.02
Sublet of Part of Premises................................................................................ 6.03
Excess Rent............................................................................................... 6.04
Mortgage of Leasehold..................................................................................... 6.05
Advertising Premises...................................................................................... 6.06
Disposition by Landlord................................................................................... 6.07
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SECTION
ARTICLE VII - USE
Use of Leased Premises.................................................................................... 7.01
Observance of Law......................................................................................... 7.02
Waste and Nuisance........................................................................................ 7.03
Signs..................................................................................................... 7.04
Outside Storage........................................................................................... 7.05
Overloading Floors........................................................................................ 7.06
Parking................................................................................................... 7.07
ARTICLE VIII - INSURANCE AND INDEMNITY
Tenant's Insurance........................................................................................ 8.01
Landlord's Insurance...................................................................................... 8.02
Limit of Landlord's Liability............................................................................. 8.03
Limit of Tenant's Liability............................................................................... 8.04
Indemnity ................................................................................................ 8.05
ARTICLE IX - DAMAGE AND DESTRUCTION
Abatement of Rent......................................................................................... 9.01
Termination............................................................................................... 9.02
ARTICLE X - DEFAULT
Events of Default......................................................................................... 10.01
Right of Re-entry......................................................................................... 10.02
Reletting ................................................................................................ 10.03
Distress.................................................................................................. 10.04
Right of Landlord to Cure Defaults........................................................................ 10.05
Remedies Not Exclusive.................................................................................... 10.06
Non-Waiver ............................................................................................... 10.07
Recovery of Adjustments................................................................................... 10.08
ARTICLE XI - SUBORDINATION AND ACKNOWLEDGEMENTS
Mortgages................................................................................................. 11.01
Certificates.............................................................................................. 11.02
ARTICLE XII - ACCESS BY LANDLORD
Entry by Landlord......................................................................................... 12.01
Exhibiting Leased Premises................................................................................ 12.02
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SECTION
ARTICLE XIII - MISCELLANEOUS
Notice.................................................................................................... 13.01
Registration ............................................................................................. 13.02
Planning Act ............................................................................................. 13.03
Obligations as Covenant................................................................................... 13.04
Severability.............................................................................................. 13.05
Overholding .............................................................................................. 13.06
Unavoidable Delays........................................................................................ 13.07
Evidence of Payments...................................................................................... 13.08
Lien ..................................................................................................... 13.09
Time of Essence........................................................................................... 13.10
Law ...................................................................................................... 13.11
Captions/Headings......................................................................................... 13.12
Joint And Several Liability............................................................................... 13.13
Tenant Partnership........................................................................................ 13.14
Environmental Assessments................................................................................. 13.15
Environmental Matters..................................................................................... 13.16
Easements................................................................................................. 13.17
Entire Agreement ......................................................................................... 13.18
Effect Of Lease........................................................................................... 13.19
SCHEDULES
SCHEDULE "A" - Description of Lands
SCHEDULE "A-1" - Site Plan
SCHEDULE "B" - Definitions
SCHEDULE "C" - Exterior Maintenance/Repair Work
SCHEDULE "D" - Landlord's Work
THIS INDENTURE dated the 12th day of August, 2003,
BETWEEN:
ORLANDO CORPORATION
(Hereinafter called the "LANDLORD"),
OF THE FIRST PART;
-- and --
THE CHILDREN'S PLACE (CANADA), LP
BY TCP INVESTMENT CANADA II CORP., GENERAL PARTNER
(Hereinafter called the "TENANT"),
OF THE SECOND PART;
ARTICLE I - DEMISE AND TERM
PREMISES
1.01 WITNESSETH that in consideration of the rents, covenants and agreements
hereinafter reserved and contained on the part of the Tenant to be paid,
observed and performed, the Landlord does demise and lease unto the Tenant and
the Tenant leases from the Landlord, the Leased Premises.
TERM
1.02 To have and to hold the Leased Premises for and during the term of ten
(10) years commencing on the Commencement Date.
The Commencement Date shall be thirty (30) days following the date that the
Landlord notifies the Tenant that the Landlord's Work as set out in Schedule "D"
of this Lease is substantially complete, as certified by the Landlord's
Architect. The date of substantial completion is currently estimated to be on or
about March 1, 2004.
EARLY ACCESS
1.03 Provided that: (i) the Tenant has delivered to the Landlord this Lease
duly executed in form acceptable to the Landlord; and (ii) the Tenant has
delivered to the Landlord the deposit as set out in Section 2.05 of this Lease,
the Tenant shall be entitled to have early access ("Early Access") to the Leased
Premises for the period which is thirty (30) days following the date that the
Landlord notifies the Tenant that the Landlord's Work is substantially complete
(the "Early Access Period") in order for the Tenant to set up its distribution
equipment and racking in the Leased Premises. Upon taking such Early Access of
all or any part of the Leased Premises, the Tenant shall observe and perform all
of the Tenant's covenants and obligations set out in this Lease except that
Basic Rent and Additional Rent shall not be payable by the Tenant during the
Early Access Period.
OPTIONS TO EXTEND
1.04 If the Tenant is not then in default under this Lease and has not been in
material default beyond applicable notice and cure periods and further provided
that the Tenant has not been late in the payment of Rent hereunder on more than
two occasions in any twelve consecutive month period, then the Tenant shall have
two (2) options to extend this Lease for further terms of five (5) years each
upon the same terms and conditions contained in this Lease except:
(a) There shall be no Landlord's Work, Early Access, cap on
Capital Tax (Section 3.01 (d), cap on Exterior
Maintenance/Repair Work (Section 5.06 (a), or cap on
Landlord's Insurance (Section 8.02);
(b) There shall be no further option to extend the Lease after the
second option to extend; and
(c) The Basic Rent payable by the Tenant during the first extended
term shall be calculated at the annual rate of $7.84 per
square foot of the area of the Building and during the second
extended term shall be calculated at the annual rate of $9.40
per square foot of the area of the Building.
In order to exercise either extension option, the Tenant shall be required to
give unconditional written notice to the Landlord not less than six (6) months
before the expiry of the initial Term of the Lease or the first extended term,
as the case may be, failing which, all then unexercised options to extend will
become null and void.
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ACCEPTANCE OF PREMISES
1.05 The Tenant shall examine the Leased Premises before taking possession
thereof and such taking of possession shall be conclusive evidence as against
the Tenant that at the time thereof the Leased Premises were in good order and
satisfactory condition and that all promises, representations and undertakings
by or binding upon the Landlord with respect to any alteration, remodeling or
decorating of or installation of fixtures in the Leased Premises, have been
fully satisfied and performed by the Landlord. The Tenant acknowledges that the
existing leasehold improvements, if any, are acceptable and that the Tenant is
taking possession of the Leased Premises as is, subject to the completion of the
Landlord's Work set forth in Schedule "D" of this Lease. Notwithstanding
anything contained herein to the contrary, the Landlord and Tenant shall inspect
the Leased Premises at the time the Tenant is given occupancy thereof and the
parties shall jointly prepare a so-called punchlist of incomplete or defective
items in the Landlord's Work. Thereafter, the Landlord shall promptly complete
such incomplete items and remedy such defective items. The Landlord shall also
be responsible for correcting defects in the Landlord's Work not caused by the
Tenant and of which it is notified in writing within one (1) year after delivery
of the Leased Premises to the Tenant. The Landlord shall cooperate with the
Tenant in pursuing all construction guarantees relating to the construction of
the Leased Premises and the Landlord shall assign to the Tenant the benefit of
those construction guarantees relating to the items which the Tenant is required
to repair and maintain pursuant to this Lease.
QUIET ENJOYMENT
1.06 If the Tenant pays the Rent hereby reserved and observes and performs the
covenants on its part contained in this Lease, then the Tenant may peaceably
possess and enjoy the Leased Premises for the Term hereby granted without
disturbance from the Landlord or any other party lawfully claiming by, from or
under the Landlord.
ARTICLE II - RENT
INTENT OF LEASE
2.01 The Tenant acknowledges that it is intended and agreed that this is a
completely carefree net lease for the Landlord and that the Landlord is not
responsible during the Term or any renewal thereof for any taxes, impositions,
costs, charges, expenses or outlays of any nature or kind relating to the Leased
Premises, save only as specifically set out in this Lease, and that the Tenant
shall be responsible for and shall promptly pay all such taxes, costs,
impositions, charges, expenses and outlays.
BASIC RENT
2.02 Yielding and paying therefor yearly and every year during the Term unto
the Landlord as Basic Rent for the Leased Premises in lawful money of Canada:
(a) during the first five (5) years of the Term (the "First Rental
Period") the sum of $531,873.73 per annum to be paid in
advance, in equal consecutive monthly installments of
$44,322.81 on the first day of each and every month during the
First Rental Period to the Landlord, the first of such
payments to be made on the Commencement Date; and
(b) during the last five (5) years of the Term (the "Second Rental
Period") the sum of $623,543.17 per annum to be paid in
advance, in equal consecutive monthly instalments of
$51,961.93 on the first day of each and every month of the
Second Rental Period to the Landlord, the first of such
payments to be made on the commencement of the Second Rental
Period.
If the Term commences on any day other than the first or ends on any day other
than the last day of a month, then Basic Rent for the fractions of a month at
the commencement and at the end of the Term shall be adjusted pro rata on a per
diem basis.
CALCULATION OF BASIC RENT
2.03 The Basic Rent is calculated on the basis of the Rentable Area of the
Building being 95,489 square feet multiplied by: (a) $5.57 per square foot per
annum during the First Rental Period; and (b) $6.53 per square foot per annum
during the Second Rental Period. Prior to the Commencement Date, the Landlord
shall cause the floor area of the Leased Premises to be measured by its
Architect. The certificate of the Landlord's Architect regarding the measurement
of the Rentable Area of the Leased Premises shall be conclusive and binding upon
the parties absent manifest error. If the floor area of the Leased Premises, as
so measured, is more or less than the number of square feet attributed to the
Leased Premises by the provisions of this Lease then the Basic Rent payable
hereunder based upon the actual floor area of the Leased Premises shall be
adjusted in proportion to the square footage of the Leased Premises as so
measured, except that if the size of the Leased Premises exceeds 103% of the
square footage set forth in this Lease. Basic Rent shall be computed as if the
size of the Leased Premises contains 103% of the square footage set forth in
this Lease. In the event the Architect's certificate indicates the Rentable Area
of the Leased Premises to be other than 95,489 square feet, the Basic Rent shall
be adjusted accordingly.
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ADDITIONAL RENT
2.04 The Tenant shall pay Additional Rent due and owing to the Landlord within
ten (10) days of written demand therefor or otherwise hereinafter expressly set
out and all other Additional Rent on the due date thereof.
DEPOSIT
2.05 The Landlord acknowledges receipt of $38,180.68 which shall be held by the
Landlord together with an existing deposit of $13,781.25 held under the existing
lease for 6291 Ordan Drive, Mississauga, Ontario dated the 21st day of August,
2000 (the "Existing Lease"). If, prior to the Commencement Date, the Landlord
reduces such security under the terms of the Existing Lease then the Tenant
covenants and agrees to pay to the Landlord forthwith the amount of such
reduction and the amount of $51,961.93 (excluding GST) shall be held by the
Landlord as security for the full and faithful performance by the Tenant of all
the agreements, terms, covenants and conditions herein set forth and applied
against expenses or other costs or damages incurred by the Landlord and to be
payable as liquidated damages and not as penalty, upon forfeiture, default or
early termination, without prejudice to any further claims by the Landlord for
damages and/or any remedy for recovery thereof. In the event the Tenant observes
and performs the terms and conditions on its part under this Lease, such monies
shall be applied without interest on account of Basic Rent for the last month of
the Term.
PAYMENTS TO LANDLORD
2.06 All payments to be made by the Tenant to the Landlord under this Lease
shall be made at the address hereinafter designated or, at such other place or
places as the Landlord may designate in writing, or to such agent of the
Landlord as the Landlord may from time to time direct.
OVERDUE RENT
2.07 The Tenant shall pay the Landlord interest on all overdue Rent not paid
on the day appointed for payment thereof or within any applicable notice period
pursuant to Section 10.01(a) of this Lease, if any, all such interest to be
calculated from the date upon which the amount is first due hereunder or from
the expiry of any applicable notice period, if the Tenant is entitled to a
notice period pursuant to Section 10.01(a), until actual payment thereof and at
a rate being the lesser of three percent (3%) per annum in excess of the minimum
lending rate charged to prime commercial borrowers by the Landlord's bank from
time to time or the rate permitted by law (the "Lease Interest Rate"). However,
in the event the Tenant is late in the payment of Rent two or more times in any
twelve (12) consecutive month period then the foregoing interest shall be
calculated at the aforementioned rate on all overdue Rent calculated from the
date upon which such amount is first due hereunder until actual payment thereof.
SET-OFF
2.08 All Rent payable by the Tenant to the Landlord shall be paid without any
deduction, set-off or abatement whatsoever except as expressly hereinafter
provided.
REVIEW OF TENANT'S FINANCIAL STATEMENTS
2.09 If the Tenant is late in the payment of any Rent (or any part thereof) in
any two (2) consecutive months or more than twice in any twenty-four (24) month
period, then the Tenant shall, at its own cost and expense, forthwith provide
the Landlord upon demand with audited current financial statements to the extent
they are not publicly available so as to adequately enable it to determine to
its satisfaction the financial status of the Tenant.
PRE-AUTHORIZED BANK DEBIT
2.10 (INTENTIONALLY DELETED)
ARTICLE III - TAXES
TAXES PAYABLE BY TENANT
3.01 The Tenant shall pay:
(a) the Taxes charged on the Leased Premises, as determined
pursuant to Section 3.02 or Section 3.04, as the case may be,
which the Landlord estimates to be $1.63 per square foot of
Rentable Area of the Leased Premises per annum in the first
Year of the Term (based on 2002 tax rates for similar
buildings);
(b) all taxes, rates, duties, assessments and other charges that
are levied, rated, charged or assessed against or in respect
of all improvements, equipment and facilities and goods of the
Tenant on or in the Leased Premises or any part thereof;
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(c) every tax and license fee which is levied, rated, charged or
assessed against or in respect of every business carried on in
the Leased Premises or in respect of the use or occupancy
thereof or any part of the Lands or the Building by the Tenant
and every subtenant or licensee of the Tenant or against the
Landlord on account of its interest in the Leased Premises,
and whether in any case, any such taxes, rates, duties,
assessments or license fees are rated, charged or assessed by
any federal, provincial, municipal, school or other body
during the Term;
(d) Capital Tax (provided that Capital Tax shall not exceed the
rate of $0.10 per square foot of Rentable Area of the Leased
Premises during the first Year of the Term); and
(e) the full amount of any taxes in the nature of a business
transfer tax, value added tax, sales tax or any other tax
levied, rated, charged or assessed in respect of the Rent
payable by the Tenant under this Lease or in respect of the
rental of space under this Lease, whether characterized as a
goods and services tax, sales tax, value added tax, business
transfer tax or otherwise.
PAYMENT OF TAXES
3.02 (a) Subject to Section 3.04 of this Lease, the Tenant shall pay
the Taxes payable pursuant to paragraph (a) of Section 3.01 to
the lawful taxing authority when due or, if directed in
writing by the Landlord, the Tenant shall pay said Taxes to
the Landlord within ten (10) days' written demand therefor, or
the Landlord shall be entitled at any time or times in any
Year, upon at least fifteen (15) days' written notice to the
Tenant to require the Tenant to pay to the Landlord said Taxes
for such Year in equal monthly installments. Such monthly
amount shall be determined by dividing the Taxes by the number
of months for the period from January 1st in each Year of the
Term until the due date of the final installment of Taxes as
established by the applicable taxing authority from time to
time in each Year ("Installment Period") and shall be paid by
the Tenant to the Landlord, monthly as Additional Rent, on the
date of payment of monthly rental payments during the
Installment Period. The Landlord shall be entitled not more
than two (2) times during such Year, upon at least fifteen
(15) days' written notice to the Tenant, to reasonably revise
its estimate of the amount of increase of such Taxes and the
said monthly installment shall be revised accordingly. All
amounts received under this provision in any Year on account
of the estimated amount of such Taxes shall be applied in
reduction of the actual amount of such Taxes for such Year. If
the amount received is less than the actual Taxes, the Tenant
shall pay any deficiency to the Landlord as Additional Rent
within fifteen (15) days following receipt by the Tenant of
notice of the amount of such deficiency. If the amount
received is greater than the actual Taxes, the Landlord shall
either refund the excess to the Tenant as soon as possible
after the end of the Year in respect of which such payments
were made or, at the Landlord's option, shall apply such
excess against any amounts owing or becoming due to the
Landlord by the Tenant. If the Tenant pays Taxes to the lawful
taxing authority, then the Tenant shall deliver to the
Landlord within fifteen (15) days after the date on which such
Taxes are payable and due, official receipts evidencing
payment of same;
(b) Taxes payable pursuant to paragraphs (b) and (c) of Sections
3.01 shall be paid by the Tenant to the lawful taxing
authority when due;
(c) Taxes payable pursuant to paragraphs (d) and (e) of Sections
3.01 shall be paid to the Landlord within ten (10) days'
written demand therefor or at such time or times as the
Landlord from time to time determines by notice in writing to
the Tenant.
APPEAL OF ASSESSMENT
3.03 The Tenant shall not contest the amount or legality of the Taxes referred
to in this Section or make application for the reduction of such Taxes or of any
assessment upon which such Taxes are based without the prior written consent of
the Landlord, which consent shall not be unreasonably withheld or delayed. The
Tenant shall diligently prosecute any contest of Taxes for which it has received
the Landlord's written consent. During such proceedings to contest any such
Taxes, the Tenant shall pay to the Landlord or the taxing authority, as the case
may be, all Taxes in accordance with the terms of this Lease pending the
determination of such contest. The Tenant shall immediately on the determination
of such contest pay to the appropriate taxing authorities or the Landlord, as
the case may be, such additional amount as may be required to satisfy such Taxes
in full.
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SEPARATE ASSESSMENT
3.04 (a) If there is no separate assessment for Taxes with respect to
the Leased Premises, or if there is a separate assessment, but
such separate assessment, together with all other separate
assessments relating to the Leased Premises and such other
lands and/or buildings included in such assessment roll
("Complex"), do not aggregate the total assessment for the
Taxes for the Complex, then until such time as there is a
separate assessment for Taxes with respect to the Leased
Premises which, together with all other such separate
assessments, aggregate the total assessment for Taxes for the
Complex, and the Landlord has issued a direction to pay Taxes
pursuant to paragraph (b) of this Section 3.04, the Tenant
shall pay to the Landlord in accordance with Section 3.02 (a)
as Additional Rent its Proportionate Share of the Taxes for
the Complex, adjusting the occupied tax rate for the Tenant's
specific use of the Leased Premises, provided that the
Landlord, at its option, may apportion the total assessment
for Taxes for the Complex amongst the leaseable premises of
the Complex, including the Leased Premises, based on generally
accepted real estate appraisal practices. If there is no
separate assessment for Taxes as herein provided and the
Complex is not fully assessed as a commercial or industrial
property for determination of Taxes in any Year, then the
Landlord shall adjust the Taxes to an amount that would have
been determined if the Complex were fully assessed as an
occupied commercial or industrial property. If the Leased
Premises are at any time during the Term assessed for the
support of Separate Schools or if the Taxes are increased by
reason of any installations made in or upon or any alterations
made in or to the Leased Premises by the Tenant or by the
Landlord on behalf of the Tenant, the Tenant shall pay the
amount of such increase forthwith to the Landlord upon receipt
of notice thereof. For the purpose of this subparagraph 3.04
(a), "Proportionate Share" means that fraction having as its
numerator the area of the Building and having as its
denominator the Rentable Area of all Buildings in the Complex.
(b) If there is a separate assessment for Taxes with respect to
the Leased Premises, (which separate assessment shall be
deemed to include the valuation of the Leased Premises as
determined, from time to time, by the assessor for realty
taxation purposes of the Complex, as evidenced by such
documentation (including, without limitation, the assessor's
valuation and/or working papers) that may be available to the
Landlord, from time to time) and if such separate assessment
together with all other separate assessments for the Complex
aggregate the total assessment for Taxes for the Complex, and
if the Landlord so directs the Tenant shall pay as Additional
Rent the amount calculated by multiplying the assessment for
the Leased Premises by the applicable tax rate pertaining to
the Tenant's use of the Leased Premises on an occupied basis,
which amount shall, for the purposes of this Article III only
and notwithstanding anything else herein contained, be the
Tenant's "Proportionate Share" of Taxes for the Complex.
ARTICLE IV - HEATING AND UTILITIES
UTILITY CHARGES
4.01 The Tenant shall pay to the suppliers thereof on the due dates, all
charges for electric current and all other utilities supplied to or used in
connection with the Leased Premises. In no event shall the Landlord be liable
for any injury to the Tenant, its servants, gents, employees, customers or
invitees or to any property of the Tenant or to any property of any other
person, firm or corporation on or about the Leased Premises caused by an
interruption or failure in the supply of any such utilities to the Leased
Premises.
HEATING
4.02 The Tenant shall maintain the temperature in the Leased Premises at a
reasonable level to avoid damage occurring in or to the Leased Premises.
SERVICE CONTRACTS
4.03 The Tenant covenants and agrees to take out a standard servicing contract
with a capable and reputable company for the service and maintenance of the
heating units and furnaces and air conditioning equipment serving the Leased
Premises, such contract to include the monthly cleaning of exchangers and
replacement of filters, and to keep such contract in force at its own cost
throughout the Term and any renewal thereof. The Tenant agrees to provide the
Landlord with a copy of such servicing contract.
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ARTICLE V - MAINTENANCE AND REPAIR
MAINTENANCE, REPAIRS AND REPLACEMENTS
5.01 Subject only to Section 5.05 hereof, the Tenant shall at its own cost
repair, replace, maintain and keep the Leased Premises and every part thereof,
including without limitation the Leasehold Improvements and the heating,
ventilating and air conditioning equipment serving the Building, fixtures and
furnishings (whether or not installed or furnished by the Tenant), in good and
substantial repair and condition as a prudent owner would do, damage by fire and
any other perils against which the Landlord is required under this Lease to
insure excepted. The Tenant shall also keep the driveways, walkways, and parking
areas free and clear of snow and ice that the Tenant (including, without
limitation, the portion of the mutual driveway lying between the Lands that
serve the Leased Premises and the adjacent building). The Tenant agrees that
upon not less than twenty-four (24) hours notice (except in the case of
emergency when no notice shall be required) the Landlord may enter and view the
state of repair and condition and that the Tenant shall repair in accordance
with notice in writing from the Landlord; provided always that if the Tenant
shall not within fifteen (15) days' of such notice, commence and proceed
diligently with the execution of the repairs and works mentioned in such notice,
it shall be lawful for the Landlord to enter upon the Leased Premises and
execute such repairs and works at the expense of the Tenant, and in any and
every such case the Tenant covenants with the Landlord to pay to the Landlord
forthwith as Additional Rent all sums which the Landlord may have expended in
doing such maintenance and making such repairs and/or replacements together with
fifteen percent (15%) of such costs as a management and supervisory fee;
provided further that the doing of such maintenance or the making of any such
repairs or replacements by the Landlord shall not relieve the Tenant from its
obligation to maintain, repair and replace.
VIEW AND REPAIR
5.02 (INTENTIONALLY DELETED)
ALTERATIONS
5.03 The Tenant shall not, without the prior written approval of the
Landlord, make any installations, alterations, additions, partitions, repairs or
improvements in or to the Leased Premises, including, without limitation, doing
anything which might affect the structural portions of the Leased Premises or
the electrical, lighting, heating, ventilating, air-conditioning, sprinkler,
fire protection, roofing or other systems therein. The Tenant's request for
approval shall be in writing and accompanied by an adequate description of the
contemplated work, the final working drawings and specifications therefor; the
Landlord's costs of having its architects, engineers or others examine such
drawings and specifications shall be payable by the Tenant upon demand as
Additional Rent; the Landlord may require that any or all such work be done by
the Landlord's contractors or workmen or by contractors or workmen engaged by
the Tenant but first approved by the Landlord. All such work shall be subject to
inspection by and the reasonable supervision of the Landlord and shall be
performed in accordance with all Applicable Laws and any reasonable conditions
(including but not limited to a reasonable supervision fee of the Landlord to be
paid by the Tenant) and regulations imposed by the Landlord, and shall be
completed in a good and workmanlike manner and with reasonable diligence in
accordance with the approvals given by the Landlord. Any connections of
apparatus to the base electrical, plumbing, heating, ventilating or
air-conditioning systems shall be deemed to be an alteration within the meaning
of this Section. The Tenant shall, at its own cost and before commencement of
any work, obtain all necessary building or other permits and keep same in force.
Once consent of the Landlord has been obtained in connection with any such work,
the Tenant shall not make any modifications thereto (including, without
limitation changes required in order to obtain a building permit) unless and
until it has submitted revised drawings and specifications to the Landlord and
obtained the Landlord's further written approval of the proposed changes. The
Tenant shall not apply for any applicable permits or approvals unless the Tenant
provides to the Landlord a copy of the approval or permit application, as the
case may be, together with all supporting documentation or drawings attached
thereto and obtains the Landlord's authorization in writing to submit such
application to the relevant authority. Notwithstanding anything to the contrary
set forth in this Section 5.03, the Tenant may, without the Landlord's consent
but with prior notice to the Landlord, make alterations to the interior of the
Leased Premises which do not alter, modify or in any other manner whatsoever
affect the structural portions of the Leased Premises or the roof of the
Building and the exterior of the Leased Premises or the structural integrity of
the Building of which the Leased Premises shall form a part, or the plumbing,
electrical, heating, ventilating, air-conditioning, or mechanical systems or
installations in the Leased Premises, provided that any such single alteration
does not involve a cost in excess of $50,000.00 and does not require a building
permit.
REMOVAL OF FIXTURES AND IMPROVEMENTS
5.04 Leasehold Improvements shall immediately become the property of the
Landlord upon affixation or installation without compensation therefor to the
Tenant but the Landlord is under no obligation to repair, maintain or insure
Leasehold Improvements. Leasehold Improvements shall not be removed from the
Leased Premises either during or at the expiration or earlier termination of the
Term, except that the Tenant shall, at the end of the Term remove such Leasehold
Improvements installed or constructed by or on behalf of the Tenant as the
Landlord may require to be removed and restore the Leased Premises provided that
the Tenant shall not be required to remove any Leasehold Improvements or other
alterations made to the Leased Premises after the completion of the Landlord's
Work which the Landlord and in respect of which the Landlord, at the time of
giving its approval, has exempted from this removal and restoration requirement.
The Tenant may, during the Term, remove its trade fixtures provided that such
trade fixtures are immediately replaced by trade fixtures of equal or better
value. The Tenant shall at the expiration or earlier termination of the Term
remove its trade fixtures. Any removal of Leasehold Improvements and/or the
Tenant's trade fixtures shall be done at the Tenant's sole cost and expense and
the Tenant shall forthwith repair at its own cost any damage caused to the
Leased Premises or any part thereof by the installation or removal of Leasehold
Improvements and/or trade fixtures. If the Tenant does not remove its trade
fixtures at the expiration or earlier termination of the Term, then the trade
fixtures shall, at the option of the Landlord, become the property of the
Landlord and may be removed from the Leased Premises and/or sold or otherwise
disposed of by the Landlord in such manner as it deems advisable. For greater
certainty, the Tenant's trade fixtures shall not include any heating,
ventilating or air-conditioning equipment or other building services or floor
covering affixed to the floor of the Leased Premises. The obligations of the
Tenant set forth in this Section shall survive the expiry or other termination
of the Term.
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CONSTRUCTION LIENS
5.05 The Tenant covenants to pay promptly all its contractors and material men
and do any and all things necessary to minimize the possibility of a lien
attaching to the Leased Premises or to any part of the Building or the Lands
and, should any such lien be made or filed, the Tenant shall take the necessary
steps (including posting security with the appropriate court if necessary)
discharge the same forthwith (after notice thereof is given to the Tenant), but
in any event not later than ten (10) days after notice, at the Tenant's expense.
In the event the Tenant shall fail to cause any such lien to be discharged as
aforesaid, then, in addition to any other right or remedy of the Landlord, the
Landlord may, but it shall not be so obligated, vacate from title or discharge
same by paying into Court the amount necessary to vacate the lien or by paying
directly to any such lien claimant the amount of the claim, and the amount so
paid by the Landlord and all costs and expenses including but not limited to
solicitor's fees (on a solicitor and client basis), incurred for the discharge
of such lien shall be due and payable by the Tenant to the Landlord as
Additional Rent on demand. In the event that any lien claimant in respect of
work performed on behalf of the Tenant commences an action in which the Landlord
is named as a party defendant and service of the statement of claim is effected
upon the Landlord, the Tenant shall indemnify the Landlord for all of its legal
costs.
LANDLORD TO MAINTAIN AND REPAIR
5.06 (a) The Landlord shall perform at the Tenant's cost and expense,
the maintenance and repair work listed in Schedule "C" hereto
(the "Exterior Maintenance/Repair Work"). The Tenant shall,
forthwith upon demand, pay to the Landlord the costs and
expenses incurred by the Landlord from time to time in
connection with the Exterior Maintenance/Repair Work, plus a
management fee of fifteen percent (15%) of such costs and
expenses; provided that such cost, including the management
fee, shall not exceed the rate of $0.25 per square foot of
Rentable Area of the Leased Premises for the first Year of the
Term.
(b) The Tenant shall perform the snow removal work on the Leased
Premises at its sole cost and expense and as such the Exterior
Maintenance/Repair Work shall not include any requirement on
the part of the Landlord to perform such snow removal work.
(c) The Landlord shall repair and/or replace, if necessary, at its
own expense, the footings, foundations, bearing walls,
structural steel and metal roof deck (excluding without
limitation the roof membrane) of the Building unless such
repairs or replacements are caused by or arise from the
negligent or willful acts or omissions of the Tenant, its
officers, employees, agents, contractors or those for whom in
law the Tenant is responsible, in which case the Tenant shall
bear the cost of such repairs and/or replacement together with
the Landlord's management fee of fifteen percent (15%) of such
costs and expenses.
REPAIRS ON TERMINATION
5.07 At the expiration or sooner termination of the Term the Tenant shall,
at its own expense:
(a) deliver up possession of the Leased Premises to the Landlord
together with all Leasehold Improvements which the Tenant is
required or permitted to leave therein or thereon in the same
condition in which the Tenant is required under this Lease to
repair and maintain the Leased Premises, free and clear of all
encumbrances and in a clean and tidy condition and free of all
rubbish and to deliver to the Landlord all keys and security
devices;
(b) remove from the Leased Premises, at the option of and to the
satisfaction of the Landlord, all machine bases, cabling
(electrical or otherwise), piping (pneumatic, water or
otherwise) and wiring (electrical, computer or otherwise)
installed by or on behalf of the Tenant;
(c) remove any and all materials which may be deemed by any
applicable legislation as contaminated or hazardous (and which
have been brought onto the Leased Premises by or on behalf of
the Tenant or which are a result of the Tenant's use or
occupation of the Leased Premises), and clean up any and all
resultant contamination in compliance with all Applicable Laws
and regulations; and
(d) remove from the Leased Premises at the option of the Landlord,
in compliance with all Applicable Laws and regulations, any
and all storage and/or holding tanks (whether above or below
ground) installed by or on behalf of the Tenant and all pits
and trenches created by or on behalf of the Tenant.
The covenants contained in this Section shall survive the expiry or other
termination of the Term and if the Tenant should breach any of the foregoing
provisions of this Section then, without prejudice to or limitation of any of
the rights or remedies of the Landlord hereunder or at law and in addition to
paying any costs or expenses incurred by the Landlord, plus fifteen percent
(15%) of such amounts, the Tenant shall continue to pay Rent for so long as it
may reasonably take to complete with diligence the required repairs, removal,
restoration or clean-up at the rate applicable for the immediately preceding
rental period.
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ARTICLE VI - ASSIGNING AND SUBLETTING
ASSIGNING OR SUBLETTING
6.01 (a) The Tenant shall not assign this Lease or sublet or franchise,
license, grant concessions in, or otherwise part with or share
possession of the Leased Premises, or any part thereof, (each
of the foregoing hereinafter referred to as a "Transfer")
without the prior written consent of the Landlord; at the time
the Tenant requests such consent the Tenant shall deliver to
the Landlord such information in writing (the "required
information") as the Landlord may reasonably require,
including, without limitation, a copy of the proposed offer or
agreement, if any, to Transfer and the name, address and
nature of business and evidence as to the financial strength
of the proposed assignee or subtenant or other user (any of
the foregoing hereinafter referred to as a "Transferee"); upon
receipt of such request and all required information, the
Landlord shall have the right, exercisable within fourteen
(14) days after such receipt, to terminate this Lease if the
request relates to all of the Leased Premises or, if the
request relates to a portion of the Leased Premises only, the
Landlord shall have the right to terminate this Lease with
respect to such portion and the Rent payable by the Tenant
under this Lease shall abate in the proportion that the area
of the portion of the Leased Premises for which this Lease is
terminated bears to the area of the Leased Premises.
Notwithstanding the foregoing, if the Landlord exercises its
right to terminate this Lease, in whole or in part, as
aforesaid, the Tenant shall have the right to revoke the
Transfer request and nullify the Landlord's termination right
upon notice give to the Landlord within ten (10) business days
following the exercise of the Landlord's termination right. If
the Landlord exercises such right and the Tenant does not
revoke the Transfer request, the Tenant shall surrender
possession of the Leased Premises or such portion thereof, as
the case may be, not less than sixty (60) days and not more
than ninety (90) days following the Landlord's notice of
exercise of its right hereunder in accordance with all the
provisions of this Lease relating to the surrender of the
Leased Premises at the expiration of the Term and all Rent and
other charges shall be deemed to be adjusted accordingly and
the Lease shall be deemed to be amended accordingly, as of the
date of actual surrender. If the Landlord does not exercise
such right, then the Landlord's prior written consent shall
not be unreasonably withheld or delayed.
Notwithstanding anything else herein contained, in no event
shall any Transfer of this Lease release or relieve the Tenant
in any regard whatsoever from any of its obligations or
liabilities under or in respect of this Lease including any
renewal or extension thereof.
PROVIDED however, and it is made a condition to any Transfer
requiring the Landlord's consent that:
(i) The proposed Transferee of this Lease shall agree in
writing with the Landlord to assume and perform all
of the terms, covenants, conditions and agreements by
this Lease imposed upon the Tenant herein in a form
to be reasonably approved by the Landlord (which form
shall also be executed by the Tenant) and shall
obtain any required occupancy approval from the local
building and fire departments and provide evidence
thereof to the Landlord prior to taking occupancy of
the Leased Premises;
(ii) Except in the case of an assignment of this Lease,
the Transferee shall also waive any rights which it
may have at common law in respect of relief from
forfeiture and any rights it may have pursuant to
Sections 21 and 39 (2) of the Commercial Tenancies
Act (Ontario), as amended from time to time;
(iii) The Tenant shall pay the Landlord all reasonable
legal fees in connection with the Transfer;
(iv) The consent of the Landlord is not a waiver of the
requirement of the Landlord's consent for subsequent
Transfers;
(v) The acceptance by the Landlord of Rent from a
Transferee without the Landlord's consent shall not
constitute a waiver of the requirement of such
consent nor shall it constitute an acceptance of such
party as the Tenant;
(vi) The Landlord may, at its option, cancel (i) any
options to renew the Lease or extend the Term
provided that in the case of an assignment of this
Lease consented to by the Landlord, the Landlord may
not cancel such option; and/or (ii) any rights of
first refusal or first opportunity on additional
space;
(vii) The Leased Premises, at the time of the Transfer,
shall comply in all respects with the standard of
repair and maintenance required of the Tenant
pursuant to this Lease and the Lease shall otherwise
be in good standing;
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(viii) If the Transfer of the Leased Premises does not take
place within one hundred and twenty (120) days of the
giving of consent by the Landlord (or such longer
period as may be agreed upon by the parties) the
consent shall, at the Landlord's option, expire and
become null and void; and
(ix) If, following any assignment of this Lease, it is
disaffirmed, disclaimed or terminated by any trustee
in bankruptcy of a Transferee, the original Tenant
named in this Lease will be deemed on notice from the
Landlord given within sixty (60) days from the date
of such disaffirmation, disclaimer or termination to
have entered into a Lease with the Landlord
containing the same terms and conditions as in this
Lease.
(b) If a Transfer occurs without the consent of the Landlord when
required, the Landlord may collect Rent from the party in
whose favour the Transfer was made and apply the net amount
collected to the Rent herein reserved but no such Transfer
will be considered a waiver of this covenant or the acceptance
of the party in whose favour the Transfer was made as a tenant
hereunder.
(c) The Landlord shall not be liable for any claims or actions by
or for any damages, liabilities, losses or expenses of the
Tenant arising out of the Landlord unreasonably withholding
its consent to any Transfer and the Tenant's only recourse
shall be to bring an application for a declaration that the
Landlord shall grant its consent to such Transfer.
(d) Notwithstanding anything to the contrary contained in this
Lease, the Tenant shall have the right, without consent but on
prior written notice to the Landlord, to effect a Transfer to
an affiliate of the partners that comprise The Children's
Place (Canada), LP as at the date of this Lease (as that term
is defined in the Business Corporations Act (Ontario)) (herein
called a "Permitted Transferee") provided that such Transferee
signs and delivers to the Landlord prior to the date of such
Transfer, a form of lease assumption agreement reasonably
satisfactory to the Landlord in accordance with the provisions
of this Lease. In no event shall such Transfer of the Lease
release or relieve the Tenant from any of its obligations or
liabilities under or in respect this Lease.
CHANGE OF CONTROL
6.02 If the Tenant is a private corporation and any part or all of the
corporate shares shall be transferred by sale, assignment, amalgamation,
bequest, inheritance, operation of law or other disposition or dispositions so
as to result in a change in the control of the corporation, such change of
control shall be considered a Transfer of this Lease and shall be subject to the
provisions of Section 6.01 hereof. The Tenant shall make available to the
Landlord upon its request for inspection and copying, all books and records of
the Tenant, any assignee or subtenant and their respective shareholders which,
alone or with other data, may show the applicability or inapplicability of this
Section. So long as the Tenant is The Children's Place (Canada), LP or its
permitted Transferee, a change in the effective voting control of the Tenant
effected by a transfer of shares of the Tenant in a recognized stock exchange in
Canada or the United States of America shall not require the consent of the
Landlord; however, the Tenant shall provide notice thereof to the Landlord.
SUBLET OF PART OF PREMISES
6.03 Notwithstanding anything else to the contrary provided in this Lease
and/or any act or rule of law or regulation now or hereafter in force to the
contrary, the Landlord may in its sole and unfettered discretion refuse to give
its consent to any Transfer by the Tenant of less than the whole of the Leased
Premises resulting in more than three (3) separate premises therein.
EXCESS RENT
6.04 In the event that the Basic Rent payable under any Transfer is in excess
of the Basic Rent reserved hereunder or is in excess of the proportionate Basic
Rent reserved in the event of a sublease of part of the Leased Premises, whether
the excess be in the form of cash, goods or services from the Transferee or
anyone acting on its behalf, the Tenant shall pay fifty percent (50%) of such
excess to the Landlord immediately upon receipt thereof, after the Tenant shall
have deducted any brokerage fees or other expenses incurred related to such
Transfer; in the event that such excess is represented by goods or services
rendered to the Tenant or its nominee, the value of those goods or services
shall be determined by the Landlord and Tenant and fifty percent (50%) of that
value shall be paid in cash to the Landlord immediately upon such determination.
Notwithstanding anything to the contrary set forth herein, the Tenant shall not
be required to make any payment described in this Section 6.04 in connection
with a transfer to a Permitted Transferee.
MORTGAGE OF LEASEHOLD
6.05 The Tenant shall not mortgage, pledge, hypothecate or otherwise encumber
all or any portion of the Tenant's interest in this Lease or the Leasehold
Improvements and shall not permit any lender to register any security interest
against title to the Lands.
-10-
ADVERTISING PREMISES
6.06 The Tenant shall not advertise or allow the Leased Premises or a portion
thereof to be advertised as being available for assignment, sublease or
otherwise without the prior written approval of the Landlord as to the form,
size, content and location of such advertisement, which approval shall not be
unreasonably withheld, provided that (i) no such advertising shall contain any
reference to the Rent for the Leased Premises and (ii) any such advertising
shall be on a standard ground-mounted real estate sign.
DISPOSITION BY LANDLORD
6.07 If the Landlord sells or leases the Leased Premises or any part thereof,
or assigns this Lease, and to the extent that the covenants and obligations of
the Landlord under this Lease are assumed by the purchaser, lessee or assignee,
the Landlord, without further written agreement, will be discharged and relieved
of liability under the said covenants and obligations.
ARTICLE VII - USE
USE OF LEASED PREMISES
7.01 (a) Subject to paragraph (b) of this Section, the Tenant shall not
use the Leased Premises nor allow the Leased Premises to be
used for any purpose other than warehousing and distribution
of non hazardous and environmentally friendly products and
ancillary office use related thereto, but only to the extent
(i) in compliance with the provisions of this Lease and (ii)
permitted by all Applicable Laws, by-laws and other
governmental regulations from time to time in force.
(b) The Tenant covenants to not use or permit the Leased Premises
to be used for any retail sales whatsoever.
OBSERVANCE OF LAW
7.02 The Tenant shall comply promptly with and conform to the requirements of
all applicable statutes, by-laws, laws, regulations, ordinances and orders from
time to time or at any time in force during the Term and any renewal thereof and
affecting the condition, maintenance, repair, use or occupation of the Leased
Premises (or equipment therein) and with every applicable regulation, order and
requirement of the Insurance Advisory Organization or any body having similar
functions or of any liability or fire insurance company by which the Landlord
and the Tenant or either of them may be insured at any time during the Term or
renewal thereof, and, in the event of the default of the Tenant under the
provisions of this Section, the Landlord may itself comply with any such
requirements as aforesaid and the Tenant will forthwith pay all costs and
expenses incurred by the Landlord plus a management fee of fifteen percent (15%)
of such costs and expenses in this regard and the Tenant agrees that all such
costs and expenses shall be recoverable by the Landlord as if the same were
Additional Rent reserved and in arrears under this Lease.
WASTE AND NUISANCE
7.03 (a) The Tenant shall not do, suffer or permit any waste, damage,
disfiguration or injury to the Leased Premises or the fixtures
and equipment thereof and shall not use or permit to be used
any part of the Leased Premises for any dangerous, noxious or
offensive trade or business nor cause or permit any fire alarm
to be falsely triggered (and in the case of any alarm response
charge levied by the local fire department the cost thereof,
plus the Landlord's fifteen percent (15%) management fee,
shall be paid by the Tenant to the Landlord on demand), nor
use the Leased Premises in any manner which, in the opinion of
the Landlord acting reasonably, is detrimental to the
Building, nor keep, sell, use, handle or dispose of any goods
or things which may be objectionable nor cause or maintain any
nuisance in, at or on the Leased Premises nor cause any
annoyance, nuisance or disturbance to the occupiers or owners
of any adjoining lands and/or premises and shall keep the
Leased Premises free of hazardous waste and contamination.
(b) The Tenant covenants and agrees to utilize the Leased Premises
and operate its business in a manner so that no part of the
Leased Premises or surrounding lands are used to generate,
manufacture, refine, treat, transport, store, handle, dispose
of, transfer, produce or process any Hazardous Substances,
except in strict compliance with all applicable federal,
provincial and municipal statutes, by-laws and regulations,
including without limitation, environmental, land use and
occupational and health and safety laws, regulations,
requirements, permits, statutes, by-laws and regulations.
Furthermore, and without limiting the foregoing, the Tenant
covenants and agrees with the Landlord not to install any
underground storage tanks at the Leased Premises. Further the
Tenant hereby covenants and agrees to indemnify and save
harmless the Landlord and those for whom the Landlord is in
law responsible from any and all losses, costs, claims,
damages, liabilities, expenses or injuries caused or
contributed to by any Hazardous Substances which are at any
time located, handled, placed, stored or incorporated in any
part of the Leased Premises. The Tenant hereby agrees that the
Landlord or its authorized representatives shall have the
right at the Landlord's expense, to conduct such environmental
site reviews and Investigations (herein "Audit") as it may
deem necessary for the purposes of ensuring compliance with
this Section 7.03 provided that if such Audit discloses that
the Tenant is in violation of this Section 7.03, such Audit
shall be at the Tenant's expense, payable as Additional Rent
within fifteen (15) days of receipt of an invoice therefore.
The Tenant's obligations pursuant to this Section 7.03 shall
survive the expiration or earlier termination of the Term.
-11-
SIGNS
7.04 The Tenant covenants and agrees not to affix or display or cause to be
affixed or displayed any sign or signs on any part of the Building visible from
its exterior (including, without limitation, the window signage), without the
prior written approval of the Landlord, which approval shall not be unreasonably
withheld or delayed, and subject to applicable municipal and other governmental
regulations. The Tenant shall at its own cost remove all such signage at the
expiration of the Term, or other sooner termination thereof, and forthwith
repair all damage which may be caused or occasioned by such affixing and/or
removal and this covenant shall survive the expiry or other termination of the
Term. Subject to the foregoing, the Tenant shall be entitled to place one
building mounted corporate sign on the exterior of the Leased Premises in a
location to be agreed upon by the Landlord and Tenant as well as on any pylon,
monument, directional or peripheral sign on the Leased Premises denoting its
occupancy therein, all at the Tenant's sole cost and expense; provided, however,
it shall be the Landlord's responsibility to provide the electrical wiring to
the exterior building mounted corporate sign location.
OUTSIDE STORAGE
7.05 The Tenant shall not store any goods or matter of any kind outside the
Building without the express written consent of the Landlord first had and
obtained. Notwithstanding anything to the contrary set forth herein, the Tenant
shall be permitted to have trailers parked in the chain-link fenced-in area
adjacent to shipping/receiving area being provided by the Landlord in accordance
with Schedule "D".
OVERLOADING FLOORS
7.06 The Tenant covenants that it will not bring upon the Leased Premises or
any part thereof any machinery, equipment, article or thing that, by reason of
its weight, size, configuration, operation or otherwise, might damage the Leased
Premises and will not at any time overload or damage the floors of the Leased
Premises. The Tenant shall remove any such machinery, equipment (including but
not limited to mobile equipment such as a forklift), article or thing within
five (5) days' written notice thereof and if any damage is caused to the Leased
Premises by any machinery, equipment, article or thing or by overloading, the
Tenant shall forthwith repair such damage at its own expense to the satisfaction
of the Landlord.
PARKING
7.07 The Tenant shall have the right to park not more than eighty (80) cars
belonging to its employees, servants, agents, contractors and invitees in those
areas on the Lands designated by the Landlord from time to time as parking areas
for the Leased Premises and shall not park nor permit its employees, servants,
agents, contractors or invitees to park in any other areas whatsoever. The
Tenant shall not park nor permit to be parked any vehicles (cars, trucks,
trailers, or otherwise) anywhere on the Lands at any time other than at such
areas so designated by the Landlord. The Landlord acknowledges that the Tenant
will have trailers parked in the chain-link fenced-in area for truck/trailer
parking adjacent to shipping/receiving area being provided by the Landlord in
accordance with Schedule "D".
ARTICLE VIII - INSURANCE AND INDEMNITY
TENANT'S INSURANCE
8.01 The Tenant shall, at its expense, obtain and maintain in force
throughout the Term and any period when it is in possession of the Leased
Premises, in the name of the Tenant with the Landlord and the Landlord's
mortgagee (if any) as additional insureds, the following insurance:
(a) Public Liability insurance, written on a comprehensive basis,
with coverage against third-party claims for bodily injury,
including death, and property damage (including but not
limited to personal injury liability, blanket contractual
liability, products liability, employers liability, owners &
contractors protective liability, and tenant's legal liability
for the full replacement cost of the Leased Premises) with
such coverage to include the activities and operations
conducted by the Tenant, or for which the Tenant is legally
liable, and any other person performing work on behalf of the
Tenant and those for whom the Tenant is in law responsible, in
amounts required by the Landlord and any mortgagee of the
Building or any part thereof from time to time but in no event
less than Five Million Dollars ($5,000,000.00) per occurrence;
and
(b) All risks insurance covering all property owned by the Tenant,
or installed by or on behalf of the Tenant, located within the
Leased Premises and all other property for which the Tenant is
responsible pursuant to this Lease and/or which has been
installed by or on behalf of the Tenant (including without
limitation chattels, equipment, machinery, furniture,
inventory, fixtures, property of others in your care, custody
or control, and all Leasehold Improvements) in an amount equal
to the full (100%) replacement value thereof; and
-12-
(c) If the Tenant modifies the Leased Premises to install its own
boilers, pressure vessels or air-conditioning equipment, the
Tenant shall obtain comprehensive boiler and machinery
insurance on a blanket repair and replacement basis with
limits for each accident in an amount of at least the
replacement cost of all leasehold improvements and of all
boilers, pressure vessels, air conditioning equipment and
miscellaneous electrical apparatus or mechanical equipment
owned or operated by the Tenant or by others (except for the
Landlord) on behalf of the Tenant in the Leased Premises, or
relating to or serving the Leased Premises; and
(d) Business interruption insurance in an amount that will
reimburse the Tenant for direct or indirect loss of earnings
attributable to all perils insured against under Section 8.01
(b) and (c) herein, and other perils commonly insured against
by prudent tenants, or attributable to prevention of access to
the Leased Premises as a result of those perils; and
(e) (i) Environmental Impairment Liability insurance ("EIL"
insurance) for claims arising from the use of or
operations at the Leased Premises, including coverage
for sudden and accidental and gradual pollution
conditions, and including incidents arising out of
the storage, disposal, release or escape of any
Hazardous Substances into or upon the Leased
Premises, land, sediments, soils, groundwater,
atmosphere, or any watercourse or body of water, and
for all third-party claims for bodily injury or
property damage as well as the cost of clean-up
and/or remediation of any contamination or
environmental hazard in, upon or around the Leased
Premises, Lands and adjoining lands, which insurance
shall be issued for a limit of no less than Five
Million Dollars ($5,000,000.00) per claim; and
(ii) In the case of the Tenant in use and occupation of
the Leased Premises being The Children's Place
(Canada), LP, the Landlord acknowledges that as of
the Commencement Date the Tenant is not required to
obtain "gradual pollution" insurance unless the
Landlord, in its discretion, determines at any time
thereafter that the Leased Premises contains
Hazardous Substances for which the Tenant is
responsible or the use permitted under this Lease is
modified or changed, with or without the Landlord's
consent, at which time the Tenant shall comply with
the original requirement for "EIL" insurance set out
in Section 8.01 (e) (i) above covering both sudden
and accidental and gradual pollution exposures. In
the event the Tenant is not required to obtain
"gradual pollution" insurance pursuant to this
Section 8.01 (e) (ii), the Tenant shall obtain
Limited Pollution liability insurance covering claims
for bodily injury or property damage resulting from a
sudden and accidental discharge, emission, dispersal,
seepage, leakage, migration, release or escape of
Pollutants in or upon land, the atmosphere, drainage
or sewage system, watercourse or any body of water,
upon or around the Leased Premises, lands and
adjoining lands, and/or caused by the heat, smoke or
fumes from a fire which becomes uncontrollable or
breaks out from where it was intended to be, as well
as the cost of clean-up and/or remediation of any
contamination or environmental hazard arising from
the use of or operations at the Leased Premises, with
a limit of no less than Five Million Dollars
($5,000,000.00) per claim. In all other instances
"EIL" insurance in accordance with Section 8.01 (e)
(i) shall be obtained by the Tenant including,
without limitation, upon any assignment of this Lease
or sublease of all or part of the Leased Premises.
(f) Standard owners form automobile insurance
providing third-party liability insurance with Two
Million Dollars ($2,000,000.00) inclusive limits, and
accident benefits insurance, covering all licensed
vehicles owned or operated by or on behalf of the
Tenant; and
(g) Such other forms of insurance as may be reasonably required by
the Landlord and its mortgagee from time to time.
All policies shall: (i) contain a cross liability and/or severability of
interest clause; (ii) be primary and non-contributing to any other insurance
available to the Landlord and/or its mortgagee(s); (iii) not be invalidated with
respect to the interests of the Landlord and its mortgagee(s) by reason of any
breach or violation of warranties, representations, declarations or conditions
contained in the policies; and (iv) contain an undertaking by the insurers to
notify the Landlord and its mortgagee(s) in writing not less than sixty (60)
days prior to any material change, cancellation or termination thereof and shall
be subject only to such deductibles and exclusions as are reasonable and
customary to businesses similar to that of the Tenant. All policies written
pursuant to paragraph (b), (c) or (d) of this Section shall contain a waiver of
any subrogation rights which the Tenant's insurers may have against the Landlord
and its mortgagees. Any policy written pursuant to paragraph (e) of this Section
shall include a contractual liability clause and coverage for liability arising
from the escape of Hazardous Substances (whether sudden or accidental or
gradual) from any storage tanks, whether above ground or below ground, if any
such storage tanks are present at the Leased Premises. The Tenant shall promptly
furnish, upon request from the Landlord, verification of compliance with the
provisions of this Section.
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The Tenant agrees to furnish upon request from the Landlord verification of
compliance with the provisions of this Section 8.01. The Tenant may self insure
the coverage provided for under Section 8.01(b) if the Tenant's Net Worth as
verified by a current audited balance sheet discloses that the Tenant's Net
Worth exceeds Fifty Million Dollars ($50,000,000.00) provided that in such case
the Tenant shall be deemed to have received insurance proceeds in the event of
any loss to the extent of such loss. Notwithstanding anything to the contrary
contained in this Lease, the Tenant's obligation to carry the insurance required
herein may be satisfied by a blanket policy of insurance maintained by the
Tenant provided that (i) the amount of such blanket policy is reasonable in
relation to the number of locations covered; (ii) the coverage afforded will not
be reduced or diminished by reason thereof; (iii) the Leased Premises under this
Lease are specifically referenced in the Tenant's policy; and (iv) all other
requirements of this Section are met. "Net Worth" shall mean the shareholders
equity in the Tenant (being the amount of its total assets in excess of the
amount of its total liabilities) less its goodwill and other intangible assets
as set forth in its current audited balance sheet.
LANDLORD'S INSURANCE
8.02 The Landlord shall, throughout the Term, keep at the sole cost and
expense of the Tenant, the Building and appurtenances thereto, insured to the
following extent:
(a) against such loss or damage as are customarily insured against
under a policy of insurance commonly known as a Multi-Peril or
All-Risk policy;
(b) blanket broad boiler and pressure vessel insurance including
repair or replacement;
(c) loss of rental income insurance with respect to fire and other
usual perils for which such insurance is customarily issued
for a period (as selected by the Landlord) of not less than
six (6) months and not more than twelve (12) months for the
Basic Rent and other sums payable as Additional Rent under
this Lease; and
(d) other casualties as are customarily insured against under
insurance contracts normally entered into from time to time
during the Term by owners of buildings in the area of a
character similar to the Leased Premises in such amounts as in
the reasonable opinion of the Landlord is necessary to protect
the Landlord against loss or damage.
Notwithstanding anything contained in this Lease, including but not limited to
the covenant of the Landlord to take out the aforesaid insurance or the
contribution of the Tenant to the cost of such insurance, nothing in this Lease
shall confer any insurable interest upon the Tenant in respect of such insurance
and the Tenant acknowledges that it has no right to receive the proceeds or any
part thereof from such insurance policies. All policies written pursuant to
paragraphs (a), (b) and (c) of this Section shall contain a waiver of any
subrogation rights which the Landlord's insurers may have against the Tenant or,
if such waiver is not available from the Landlord's insurer, the Landlord shall
arrange to add the Tenant as an additional insured on such coverage. The
Landlord, on an annual basis, shall provide the Tenant with certificates
endorsing the foregoing coverage. Insurance costs under this Section shall not
exceed the rate of $0.05 per square foot of Rentable Area of the Leased Premises
per annum for the first Year of the Term.
LIMIT OF LANDLORD'S LIABILITY
8.03 (a) The Landlord shall not be responsible in any way for any
injury to any person (including but not limited to death) or
for any loss of or damage to any property belonging to the
Tenant or to other occupants of the Leased Premises or to
their respective employees, agents, invitees, licensees or
other persons from time to time attending at the Leased
Premises while such person or property is in or about the
Leased Premises, including without limiting the foregoing, any
loss of or damage to any property caused by theft or breakage,
or by steam, water, rain or snow or for any loss or damage
caused by or attributable to the condition or arrangements of
any electrical or other wiring or for any damage caused by
smoke or for any other loss whatsoever with respect to the
Leased Premises, goods placed therein or any business carried
on therein.
(b) In the event that the Leased Premises [or the Complex] or any
part or parts thereof are closed, inaccessible or unusable by
reason of damage, necessary repair or by virtue of any other
cause or condition whatsoever, whether within or beyond the
Landlord's control, the Landlord shall not be liable or
responsible in any way for any loss of business or any other
damage to or loss, direct, indirect, consequential or
otherwise sustained or suffered by the Tenant nor shall the
Tenant be entitled to any abatement of Rent, except, in the
case of damage to the Leased Premises and as expressly
provided in Article IX hereof.
LIMIT OF TENANT'S LIABILITY
8.04 The Tenant shall not be liable to the Landlord for any direct injury,
loss or damage required to be insured by the Landlord pursuant to Section 8.02
to the extent of the proceeds actually recovered by the Landlord or which would
have been recovered had the Landlord complied with its insurance obligations
hereunder, and which is in excess of $50,000.00 per occurrence, whether or not
such injury loss or damage is caused by the Tenant, or its officers, directors
or employees, provided that the Tenant promptly advises the Landlord of the
occurrence of such injury loss or damage, and the Tenant shall be and is hereby
released in respect of the same, it being understood and agreed that the
Landlord shall not be required to look to its insurance under Section 8.02
hereof for losses of $50,000.00 or less and in such case the Tenant shall be
responsible for the cost thereof.
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INDEMNITY
8.05 (INTENTIONALLY DELETED)
ARTICLE IX - DAMAGE AND DESTRUCTION
ABATEMENT OF RENT
9.01 If the Building or any portion thereof is damaged or destroyed by fire or
by other casualty against which the Landlord is required to insure under this
Lease, Rent shall abate in proportion to the area of that portion of the
Building which, in the reasonable opinion of the Landlord's insurer, is thereby
rendered unfit for the purposes of the Tenant bears to the area of the entire
Building (but only to the extent to which the Landlord actually receives
proceeds under its loss of rental income insurance or which would have been
received if the Landlord had complied with its obligations under paragraph (c)
of Section 8.02) until the Building is repaired and rebuilt as certified by the
Landlord's Architect and the Landlord agrees that it will, with reasonable
diligence, repair and rebuild the Building, subject to Section 9.02. The
Landlord's obligation to rebuild and restore the Building shall not include the
obligation to rebuild, restore, replace or repair any chattel, fixture,
Leasehold Improvements, or any other thing that is the property of the Tenant
and/or for which the Tenant is to maintain insurance under paragraph (b) and (c)
of Section 8.01 (in this Section collectively called "Tenant's Improvements");
the Building shall be deemed repaired and rebuilt when the Landlord's Architect
certifies that the Building has been substantially repaired and rebuilt to the
state where the Tenant could occupy it for the purpose of rebuilding, restoring,
replacing or repairing the Tenant's Improvements. The issuance of the
certificate of the Landlord's Architect shall not relieve the Landlord of its
obligation to complete the repairing and rebuilding as aforesaid, but the Tenant
shall forthwith after issuance of such certificate proceed to rebuild, restore,
replace and repair the Tenant's Improvements, and the provisions of Section 5.03
shall apply to such work, mutatis mutandis.
TERMINATION
9.02 Notwithstanding the provisions of Section 9.01 hereof, if:
(a) the Building or any portion thereof is damaged or destroyed by
any cause whatsoever and cannot in the reasonable opinion of
the Landlord be rebuilt or made fit for the purposes of the
Tenant as aforesaid within one hundred and eighty (180) days
from the date of such damage or destruction; or
(b) the Building is damaged or destroyed by an uninsured peril,
the Landlord may, at its option, terminate this Lease by giving to the Tenant,
within sixty (60) days' after the date of such damage or destruction, notice of
termination and thereupon Rent shall be apportioned and paid to the date of such
damage or destruction and the Tenant shall immediately deliver up possession of
the Leased Premises to the Landlord. If the Landlord does not elect to terminate
the Lease it shall repair and rebuild the Building in accordance with the
provisions of Section 9.01 hereof.
ARTICLE X - DEFAULT
EVENTS OF DEFAULT
10.01 An "Event of Default" shall occur whenever:
(a) the Tenant fails to pay the Rent hereby reserved or any part
thereof within ten (10) days after Tenant's receipt of written
notice thereof given by the Landlord to the Tenant.
(Notwithstanding the foregoing, it is understood and agreed
that if the Tenant is a party other than The Children's Place
(Canada), LP or a Permitted Transferee specified in Section
6.01 of this Lease and the Landlord is required to give
written notice twice in any 12 consecutive month period during
the Term to that other party, then the Landlord shall not be
required to thereafter give notice and an Event of Default
shall occur if the other party fails to pay Rent, or any part
thereof, on the day appointed for payment thereof whether
lawfully demanded or not);
(b) the Tenant shall have breached or failed to comply with any of
its covenants and agreements contained in this Lease (save for
non-payment of Rent) and shall have failed to remedy such
breach or non-compliance within fifteen (15) days (or such
longer period as may reasonably be required, having regard to
the nature of the default) after written notice thereof given
by the Landlord to the Tenant;
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(c) the Tenant shall make any assignment for the benefit of
creditors or become bankrupt or insolvent or take the benefit
of any Act now or hereinafter in force for bankrupt or
insolvent debtors;
(d) the Tenant is a corporation and any order shall be made for
the winding-up of the Tenant or other termination of the
corporate existence of the Tenant;
(e) the Tenant makes or attempts to make a bulk sale of assets not
in the ordinary course of the Tenant's business;
(f) a trustee, receiver, interim receiver, receiver and manager,
custodian or liquidator is appointed for the business,
property, affairs or revenue of the Tenant and such appointed
individual is not removed within ten (10) days;
(g) this Lease or any of the Tenant's assets on the Leased
Premises are taken or seized under writ of execution, an
assignment, pledge, charge, debenture or other security
instrument;
(h) the Tenant abandons or attempts to abandon the Leased
Premises;
(i) the Tenant makes or applies to the relevant authority for a
permit or approval for, any installation, alteration,
addition, modification or improvement to the Leased Premises
without the prior written approval or authorization of the
Landlord as required under Section 5.03 hereof;
(j) the Leased Premises shall be used by any person other than the
Tenant or the Tenant's permitted assignees or for any purpose
other than as set out in Section 7.01;
(k) any insurance policy on the Building or any part thereof shall
be cancelled or shall be threatened by the insurer to be
cancelled or the coverage thereunder reduced in any way by the
insurer by reason of the use or occupation of the Leased
Premises or any part thereof by the Tenant and the Tenant
shall have failed to remedy the condition giving rise to such
cancellation, threatened cancellation or reduction of coverage
within forty-eight (48) hours' written notice given by the
Landlord to the Tenant;
(l) the Tenant sells or disposes of the goods, chattels or
equipment in the Leased Premises or removes, commences or
threatens to remove them from the Leased Premises so that in
the opinion of the Landlord there would not, in the event of
such sale, disposal or removal, be sufficient goods on the
Leased Premises subject to distress which would satisfy all
Rent due or accruing hereunder for a period of six (6) months;
(m) the Tenant shall at any time during the Term or renewal
thereof use the Leased Premises, whether within the use
permitted by Section 7.01 or not, in a manner which imposes
upon the Landlord any obligation to modify, extend, alter or
replace any part of the Leased Premises or any of the
machinery, equipment or other facilities used in connection
with the Leased Premises, which obligation is not fulfilled by
the Tenant at its own cost in a timely manner; or
(n) the Leased Premises are vacant for any period in excess of
fifteen (15) days other than during repairs or renovations.
Notwithstanding the Bankruptcy and Insolvency Act (Canada) or otherwise, upon
the occurrence of an Event of Default, the then current month's Rent and next
ensuing three (3) months' Rent shall immediately become due and be paid by the
Tenant to the Landlord as accelerated Rent and the Landlord may immediately
distrain for the same together with any Rent arrears then unpaid.
RIGHT OF RE-ENTRY
10.02
(a) Upon the occurrence of an Event of Default, the Landlord may
at any time thereafter, upon notice to the Tenant, re-enter
the Leased Premises or any part thereof in the name of the
whole and terminate this Lease and all the rights of the
Tenant thereunder.
(b) If and whenever the Landlord exercises its option to re-enter
the Leased Premises and terminate this Lease pursuant to
paragraph (a) of this Section:
(i) the Tenant shall immediately vacate the Leased
Premises and the Landlord may remove or cause to be
removed from the Leased Premises the Tenant and/or
any other occupant or occupants thereof and remove
all property therefrom and sell or dispose of such
property as the Landlord considers appropriate
without liability for loss or damage and without
prejudice to the rights of the Landlord to recover
arrears of Rent or damages incurred by the Landlord;
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(ii) the Landlord shall be immediately entitled to the
payment of Rent up to the date of termination
together with all expenses incurred by the Landlord
in respect of such termination.
RELETTING
10.03 At any time when the Landlord is entitled to re-enter the Leased
Premises or terminate this Lease, the Landlord may without notice to the Tenant
and without terminating the Lease enter upon and take custody of the Leased
Premises in the name of and as agent of the Tenant, together with all the
Tenant's improvements, fixtures and furnishings, and sublet the Leased Premises
in the name of and as the agent of the Tenant on whatever terms the Landlord may
deem appropriate but no such action by the Landlord shall waive any of the
obligations of the Tenant or limit the subsequent exercise of any of the
Landlord's remedies for default. If the Landlord shall sublet the Leased
Premises as aforesaid, the Landlord shall be entitled to receive all sublease
rent and apply the same in its discretion to any indebtedness of the Tenant to
the Landlord under this Lease and/or to the payment of any costs and expenses of
reletting, and the Landlord shall be liable to account to the Tenant only for
the excess, if any, of monies actually received by it. If the sublease rent is
less than is necessary to pay and discharge all the then existing and continuing
obligations of the Tenant hereunder, the Tenant shall pay such deficiency to the
Landlord upon demand from time to time. Notwithstanding any such re-entry and
subletting without termination, the Landlord may at any time thereafter
terminate this Lease by reason of the previous or any other default under the
Lease and the provisions of Section 10.02 shall apply.
DISTRESS
10.04 (INTENTIONALLY DELETED)
RIGHT OF LANDLORD TO CURE DEFAULTS
10.05 After the provision of any notice and/or applicable cure period as may
be provided for in this Lease, if any, if the Tenant fails to perform or cause
to be performed any of the covenants or obligations of the Tenant herein, the
Landlord shall have the right (but shall not be so obligated) to perform or
cause to be performed and to do or cause to be done such things as may be
necessary or incidental thereto (including without limiting the foregoing, the
right to make repairs, installations, erections and expend monies), and all
payments, expenses, charges, fees and disbursements incurred or paid by or on
behalf of the Landlord in respect thereof shall be paid by the Tenant to the
Landlord within ten (10) days' written demand therefor together with all
reasonable legal and administrative costs of the Landlord in respect thereof.
REMEDIES NOT EXCLUSIVE
10.06 Mention in this Lease of any particular remedy or remedies in respect of
any default or threatened default by the Tenant in the performance of its
obligations shall not preclude the Landlord from exercising, or limit the extent
of, any other remedy in respect thereof, whether at law, in equity or pursuant
to any express provision hereof. No remedy shall be interpreted as exclusive or
dependent upon any other remedy, and the Landlord may from time to time exercise
any one or more of such remedies independently or in combination.
NON-WAIVER
10.07 No condoning, excusing or overlooking by the Landlord or the Tenant of
any default, breach or non-observance by the other party at any time or times in
respect of any covenant, proviso or condition herein contained shall operate as
a waiver of the Landlord's or the Tenant's rights hereunder in respect of any
continuing or subsequent default, breach or non-observance, or so as to defeat
or affect in any way the rights of the Landlord or the Tenant herein in respect
of any such continuing or subsequent default or breach, and no waiver shall be
inferred from or implied by anything done or omitted by the Landlord or the
Tenant, save only an express waiver by the Landlord or the Tenant in writing.
RECOVERY OF ADJUSTMENTS
10.08 The Landlord shall have (in addition to any other right or remedy of the
Landlord) the same rights and remedies in the event of default by the Tenant in
payment of any amount payable by the Tenant hereunder as the Landlord would have
in the case of default in payment of Rent.
-17-
ARTICLE XI - SUBORDINATION AND ACKNOWLEDGEMENTS
MORTGAGES
11.01 At the option of the Landlord or the applicable mortgagee, chargee or
trustee (as the case may be), this Lease shall be subject and subordinate to any
and all mortgages, charges and deeds of trust (and instruments supplemental
thereto), which may now or at any time hereafter affect the Leased Premises in
whole or in part, or the Lands, or the Building whether or not any such
mortgage, charge or deed of trust affects only the Leased Premises or the Lands
or the Building or affects other premises as well. The Tenant acknowledges and
agrees that any such mortgagee, chargee or trustee may unilaterally postpone and
subordinate its mortgage, charge or deed of trust to this Lease and any
renewals, modifications, consolidations, replacements or extensions thereof to
the intent that this Lease and all right, title and interest of the Tenant in
the Leased Premises shall be prior to the rights of such mortagee, chargee or
trustee as fully as if such Lease had been executed and registered before the
registration of the mortgage, charge or deed of trust, as applicable. On request
at any time and from time to time of the Landlord or of the mortgagee, chargee
or trustee under any such mortgage, charge or deed of trust, the Tenant shall
promptly, at no cost to the Landlord or mortgagee, chargee or trustee, but
provided that the holder of any such mortgage, charge or deed of trust agrees in
writing with the Tenant not to disturb the Tenant's use and occupation of the
Leased Premises so long as the Tenant is not in default under this Lease beyond
applicable notice and cure periods:
(a) attorn to such mortgagee, chargee or trustee and become its
tenant of the Leased Premises or the tenant of the Leased
Premises of any purchaser from such mortgagee, chargee or
trustee in the event of an exercise of any permitted power of
sale contained in any such mortgage, charge or deed of trust
for the then unexpired residue of the Term on the terms herein
contained; and/or
(b) postpone and subordinate this Lease to such mortgage, charge
or deed of trust to the intent that this Lease and all right,
title and interest of the Tenant in the Leased Premises shall
be subject to the rights of such mortgagee, chargee or trustee
as fully as if such mortgage, charge or deed of trust had been
executed and registered and the money thereby secured had been
advanced before the execution of this Lease (and
notwithstanding any authority or consent of such mortgagee, or
trustee, express or implied, to the making of this Lease).
Any such attornment or postponement and subordination shall extend to all
renewals, modifications, consolidations, replacements and extension of any such
mortgage, charge or deed of trust and every instrument supplemental or ancillary
thereto or in implementation thereof. The Tenant shall forthwith execute any
instruments of attornment or postponement and subordination which may be so
requested to give effect to this Section. The Tenant shall, if required, also
confirm to the Landlord's mortgagee: (i) that no prepayments of rent (except as
provided in this Lease) and no material amendments of this Lease shall be
binding on such mortgagee unless the mortgagee consents thereto; (ii) that the
mortgagee shall not be liable for any default of the Landlord under this Lease
arising prior to the mortgagee becoming a mortgagee in possession of the Leased
Premises or succeeding to the Landlord's interest in this Lease; (iii) that the
mortgagee shall be responsible for landlord obligations only so long as the
mortgagee realizes on its security by entering into ownership, possession or
control of the Leased Premises; and (iv) that the Tenant will deliver such
mortgagee, simultaneously with delivery to the Landlord, a copy of any notice to
the Landlord alleging default by the Landlord of its obligations under this
Lease; provided however, in no event shall the Tenant be required to provide
such confirmation more than two (2) times in any twelve (12) month period
without charge to the Landlord.
CERTIFICATES
11.02 The Tenant shall, within not more than ten (10) days' written request
therefor, execute and return to the Landlord or its mortgagee as required by the
Landlord from time to time and without cost to the Landlord or its mortgagee, a
statement in writing certifying that this Lease is unmodified and in full force
and effect (or if modified, stating the modifications and that the Lease is in
full force and effect as modified), the amount of the annual Basic Rent then
being paid hereunder, the dates to which the same, by installment or otherwise,
and other charges hereunder have been paid, whether or not there is any existing
default on the part of the Landlord of which the Tenant has notice, and any
other information reasonably required; provided however, in no event shall the
Tenant be required to provide such confirmation more than two (2) times in any
twelve (12) month period without charge to the Landlord.
ARTICLE XII - ACCESS BY LANDLORD
ENTRY BY LANDLORD
12.01 (INTENTIONALLY DELETED)
EXHIBITING LEASED PREMISES
12.02 The Tenant shall permit the Landlord or its agents to exhibit the Leased
Premises to prospective tenants during the last six (6) months of the Term
thereof during normal business hours upon at least 24 hours advance notice.
Notwithstanding the foregoing, in the event the Tenant does not exercise any
option that is available to it to renew or extend the Term, the Landlord may
(during business hours after at least twenty-four (24) hours notice) exhibit the
Leased Premises at any time after the earlier of the date the Tenant notifies
the Landlord that it will not be exercising such option or, in the absence of
such notice, the last day on which the Tenant may exercise such option.
-18-
ARTICLE XIII - MISCELLANEOUS
NOTICE
13.01 (a) Any notice, request, statement or other writing pursuant to
this Lease shall be deemed to have been given if mailed by
registered prepaid post or by facsimile transmission as
follows:
In the case of the Landlord, to:
ORLANDO CORPORATION
6205 Airport Road
5th Floor
Mississauga, Ontario
L4V lE3
Attention: President
Facsimile #: (905) 677-2824
In the case of the Tenant, to:
THE CHILDREN'S PLACE (CANADA), L.P.
c/o The Children's Place Retail Stores, Inc.
915 Secaucus Road
Secaucus, NJ 07094
Attention: Vice President of Real Estate
Facsimile #: (201) 558-2832
With a copy to:
THE CHILDREN'S PLACE (CANADA), L.P.
c/o The Children's Place Retail Stores, Inc.
915 Secaucus Road
Secaucus, NJ 07094
Attention: General Counsel's office
Facsimile #: (201) 558-2840
and such notice shall be deemed to have been received by the
Landlord or the Tenant (as applicable) on the third business
day after the date on which it shall have been so mailed
(provided that in the event that there is an interruption of
postal service, the aforesaid period shall be extended for a
period equivalent to the period of such interruption) or on
the day of facsimile transmission if made before 5:00 p.m.
Eastern Time on a business day, otherwise on the business day
next following, as evidenced by a written confirmation of such
facsimile transmission.
(b) Notice shall also be sufficiently given if and when the same
shall be delivered, in the case of notice to the Landlord, to
an executive officer of the Landlord, and in the case of
notice to the Tenant to him personally or to an executive
officer of the Tenant located at the address provided for
notice herein if the Tenant is a corporation. Such notice, if
delivered, shall be conclusively deemed to have been given and
received at the time of such delivery. If in this Lease two or
more persons are named as Tenant, such notice shall also be
sufficiently given if and when the same shall be delivered
personally to any one of such persons. Provided that either
party may, by notice to the other, from time to time designate
another address in Canada or the U.S.A. to which notices
mailed more than ten (10) days thereafter shall be addressed.
REGISTRATION
13.02 The Tenant covenants and agrees with the Landlord that the Tenant will
not register or record this Lease or any part thereof against the title to the
Lands or any part thereof except by way of notice which shall be subject to the
prior written approval of the Landlord not to be unreasonably withheld or
delayed and which shall only describe the parties, the Leased Premises, and the
Term and any options to renew or extend (as applicable). The Tenant covenants to
execute and return to the Landlord such notice, prepared by the Landlord in
registrable form setting out the aforesaid details, within ten (10) days'
written request therefor. The Landlord, on its own behalf, may also register
notice of this Lease, or a short form thereof, against title to the Lands and
the Tenant hereby appoints the Landlord as its agent for the purpose of
preparing and submitting any Land Transfer Tax affidavit required in connection
with such registration.
-19-
PLANNING ACT
13.03 Where applicable, this Lease shall be subject to the condition that it
is effective only if the Planning Act (Ontario) is complied with. Pending such
compliance, the Term and any renewal periods shall be deemed to be for a total
period of one (1) day less than the maximum lease term permitted by law without
such compliance.
OBLIGATIONS AS COVENANTS
13.04 Each obligation or agreement of the Landlord or the Tenant expressed in
this Lease, even though not expressed as a covenant, is considered to be a
covenant for all purposes.
SEVERABILITY
13.05 Any provision of this Lease that is determined to be illegal or
unenforceable at law shall be considered separate and severable from the
remaining provisions which shall remain in force and be binding upon the
Landlord and the Tenant.
OVERHOLDING
13.06 If the Tenant shall continue to occupy all or part of the Leased
Premises after the expiration of the Term with the consent of the Landlord, and
without any further written agreement, the Tenant shall be a monthly tenant at
one hundred and twenty-five percent (125%) of the monthly Basic Rent payable
during the last year of this Lease and otherwise on the terms and conditions
herein set out except as to length of tenancy.
UNAVOIDABLE DELAYS
13.07 Whenever and to the extent the Landlord is unable to fulfill or shall be
delayed or restricted in the fulfillment of any obligation hereunder by reason
of being unable to obtain the material, goods, equipment, service, utility or
labour required to enable it to fulfill such obligation or by reason of any
statute, law, regulation, by-law or order or by reason of any other cause beyond
its reasonable control, whether of the same nature as the foregoing or not, the
Landlord shall be relieved from the fulfillment of such obligation for so long
as such cause continues and the Tenant shall not be entitled to compensation for
any inconvenience, nuisance or discomfort thereby occasioned. There shall be no
deduction from the Rent or other monies payable under this Lease by reason of
any such failure or cause.
EVIDENCE OF PAYMENTS
13.08 The Tenant shall produce to the Landlord upon request, satisfactory
evidence of due payment by the Tenant of all payments required to be made by the
Tenant under this Lease.
LIEN
13.09 (INTENTIONALLY DELETED)
TIME OF ESSENCE
13.10 Time shall be of the essence of this Lease and every part thereof.
LAW
13.11 This Lease shall be governed by and construed in accordance with the
laws of the Province of Ontario.
CAPTIONS/HEADINGS
13.12 The captions appearing in the margin of this Lease and in the headings
to the Articles of this Lease have been inserted as a matter of convenience of
reference only and do not in any way whatsoever define, limit or enlarge the
scope or meaning of this Lease or any part thereof.
JOINT AND SEVERAL LIABILITY
13.13 If the Tenant shall be comprised of more than one (1) party, the
liability of each such party under this Lease shall be joint and several.
TENANT PARTNERSHIP
13.14 If the Tenant shall be a partnership, each person who shall be a member
of such partnership or successor thereof shall be and continue to be jointly and
severally liable for the performance and observance of all covenants,
obligations and agreements of the Tenant under this Lease even if such person
ceases to be a member of such partnership or successor thereof.
-20-
ENVIRONMENTAL ASSESSMENTS
13.15 The Landlord or its agent shall have the right to enter upon the Leased
Premises and conduct environmental assessment audits from time to time during
the Term or any renewal thereof.
ENVIRONMENTAL MATTERS
13.16 The Landlord agrees that the Leased Premises, not taking into account
the Tenant's use, shall be in compliance with all Applicable Laws as at the date
they are delivered to the Tenant. The Landlord also warrants that to the best of
its knowledge there has been no extra hazardous use of the Leased Premises, nor
installation of any asbestos. The Landlord covenants and agrees, at its own
expense, to be responsible for and to complete the removal, remediation or
clean-up, in accordance with all Applicable Laws of: (i) any and all Hazardous
Substances existing at or prior to the Early Access Period, or that migrate onto
the Leased Premises (including both surface and subsurface migration) from
adjoining lands, that in either case exceed the Ministry of Environment
guidelines as set out in the publication entitled Guideline for Remediation at
Contaminated Sites in Ontario for industrial/commercial property where it is
reasonably demonstrated that such contamination is injurious or detrimental to
the health of the Tenant's employees or the Tenant's use or occupation of the
Leased Premises; and (ii) any Hazardous Substances in or at the Leased Premises
caused by the Landlord or the Landlord's Employees or contractors.
EASEMENTS
13.17 The Tenant acknowledges that the Lands are subject to such rights-of-way
and other easements as are designated, if any, in Schedule "A" hereto. The
Tenant agrees to postpone this Lease, upon demand by the Landlord to:
(a) such further easements in favour of adjoining lands for
purposes of ingress and egress as may be requested by the
Landlord from time to time; and
(b) easements regarding utilities or sewers as may be required
from time to time.
ENTIRE AGREEMENT
13.18 The Tenant acknowledges that there have been no representations made by
the Landlord which are not set out in the Lease. The Tenant further acknowledges
that the Lease constitutes the entire agreement between the Landlord and Tenant
and may not be modified except as herein explicitly provided or by subsequent
agreement in writing duly signed by the Landlord and the Tenant.
-21-
EFFECT OF LEASE
13.19 This Indenture and everything herein contained shall extend to and bind
and may be taken advantage of by the respective heirs, executors,
administrators, successors and assigns, as the case may be, of each of the
parties hereto, subject to the granting of consent by the Landlord as provided
herein to any assignment or sublease, and where there is more than one tenant or
there is a female party or a corporation, the provisions hereof shall be read
with all grammatical changes thereby rendered necessary and all covenants shall
be deemed joint and several.
IN WITNESS WHEREOF the parties hereto have duly executed
this Lease.
LANDLORD: ORLANDO CORPORATION
Per: /s/ Doug Kilner
-------------------------------------
Authorized Signing Officer
Name: Doug Kilner
Position: President
Per: /s/ William O'Rourke
-------------------------------------
Authorized Signing Officer
Name: William O'Rourke
Position: SVP, Finance
WE HAVE AUTHORITY TO BIND THE CORPORATION.
TENANT: THE CHILDREN'S PLACE (CANADA), LP
BY TCP INVESTMENT CANADA II CORP., GENERAL PARTNER
Per: /s/ Mario Ciampi
-------------------------------------
Authorized Signing Officer
Name: Mario Ciampi
Position: SVP
Per: /s/ Steven Balasiano
-------------------------------------
Authorized Signing Officer
Name: Steven Balasiano
Position: Vice President
I/WE HAVE AUTHORITY TO BIND THE CORPORATION
SCHEDULE "A"
DESCRIPTION OF LANDS
P.I.N. 13214-0025 (LT)
PCL BLOCK 11-1, SEC 43M1023; PT BLK 11, PL 43M1023, PART 13, 18 TO 25, 43R20960;
S/T LT1028851, LT1558169, LT1558170 MISSISSAUGA
SUBJECT TO EASEMENTS TO CREATE A MUTUAL DRIVEWAY SERVICING THE LEASED PREMISES
AND THE ADJACENT LANDS FOR BRITANNIA ROAD WEST.
SCHEDULE "A-1"
SITE PLAN
SCHEDULE "B"
DEFINITIONS
For the purposes of this Lease:
(a) "ADDITIONAL RENT" means all amounts payable by the Tenant under the
provisions of this Lease, whether payable to the Landlord or otherwise,
over and above Basic Rent.
(b) "APPLICABLE LAWS" means any statutes, laws, by-laws, regulations,
ordinances, and requirements of governmental and other public
authorities having jurisdiction over or in respect of the Leased
Premises or Building, or any portion thereof, and all amendments
thereto at any time and from time to time, and including but not
limited to the Environmental Protection Act, R.S.O.1990, c.E.19, as
amended, and the Canadian Environmental Protection Act, R.S.C. 1985.
(c) "BASIC RENT" means those amounts set out as Basic Rent in Section 2.02
of this Lease.
(d) "BUILDING" means the building erected on the Lands and municipally
known as 6040 Cantay Road in the City of Mississauga, in the Regional
Municipality of Peel.
(e) "CAPITAL TAX" means the amount imputed by the Landlord in respect of
capital or place of business taxes, excises, rates, duties and
assessments presently or hereafter levied, imposed, rated, charged or
assessed from time to time upon the Landlord and/or the owners of the
Leased Premises by any government or other applicable taxing authority,
based upon, in whole or in part, a reference to or on account of the
capital employed or invested by the Landlord and/or the owners of the
Lands, the Building and improvements thereto, or on account of its or
their ownership thereof. Capital Tax shall be calculated (i) as if the
Leased Premises were the only property of the Landlord but without
reference to exempted amounts, (ii) on the basis of the Landlord's
determination of the amount of capital attributable thereto, and (iii)
by multiplying the amount of capital by the applicable tax rate imposed
without any discounts, adjustments or reductions.
(f) "HAZARDOUS SUBSTANCES" means, without limitation, any and all hazardous
substances, hazardous waste, dangerous goods, toxic waste, toxic
substance, contaminants, pollutants or related materials, including
without limitation, heavy oil, pesticides, flammables, explosives,
radioactive materials, asbestoses, urea formaldehyde foam insulation,
radon gas, PCB, any products of waste, or any other contaminants,
pollutants, substances or products declared to be hazardous or toxic
under the Applicable Laws.
(g) "LANDLORD'S ARCHITECT" means a qualified architect, engineer or Ontario
Land Surveyor from time to time chosen by the Landlord.
(h) "LANDS" means the parcel of land hatched on the Site Plan attached as
Schedule "A-1", being part of the lands described in Schedule "A"
hereto.
(i) "LEASE" means this Lease and any schedules annexed hereto and any
amendments from time to time made to this Lease in accordance with the
provisions herein set out.
(j) "LEASED PREMISES" means the Lands and the Building.
(k) "LEASEHOLD IMPROVEMENTS" means all fixtures (save for trade fixtures),
installations, additions, improvements and alterations made, erected or
installed in or on the Leased Premises by or on behalf of the Tenant.
(l) "PROPORTIONATE SHARE" means that fraction having as its numerator the
Rentable Area of the Building and having as its denominator the
Rentable Area of all buildings in the Complex as defined in Section
3.04 of this Lease.
(m) "RENT" means Basic Rent and Additional Rent.
Page #2 of Schedule "B"
(n) "RENTABLE AREA OF THE BUILDING" means the area of the Building measured
in accordance with the SIOR standard of measurement for industrial
buildings.
(o) "TAXES" means all taxes, rates, duties, levies and assessments
whatsoever (imposed by any and all taxing authorities having
jurisdiction) levied, charged or assessed upon the Lands and Building
or upon any part or parts thereof and all improvements now or hereafter
erected or placed on the Lands, or charged against the Landlord on
account thereof, including but not limited to local improvement charges
(but excluding profit and excess profit taxes and taxes assessed upon
the income of the Landlord). In addition to the foregoing, Taxes shall
include any and all taxes, charges, levies or assessments which may in
the future be levied, charged or assessed in lieu thereof or in
addition thereto. Taxes shall also include all costs and expenses
incurred by the Landlord in obtaining or attempting to obtain a
reduction or prevent an increase in the amount thereof and the cost of
all consultants, solicitors and accountants retained by the Landlord
with respect thereto. Taxes shall also include a management fee of up
to five percent (5%) per annum of the foregoing amounts incurred for
the Landlord's services in administering, determining and appealing the
Taxes, as may be applicable.
(p) "TERM" means that period of time set out in Section 1.02 of this Lease
(and any and all extensions or renewals thereof, as may be applicable).
(Q) "TRANSFER" has the meaning ascribed thereto in paragraph (a) of Section
6.01 of this Lease.
(R) "TRANSFEREE" has the meaning ascribed thereto in paragraph (a) of
Section 6.01 of this Lease.
(S) "YEAR" means each calendar year, the whole or part of which is included
within the Term. (q)
SCHEDULE "C"
EXTERIOR MAINTENANCE/REPAIR WORK
Building Repairs - General Minor caulking, clean-up and repairs of a general
nature.
Roof Repairs: Maintain and repair roof as required to keep the roof in a well-maintained condition.
Painting: Paint outside doors and frames, bollards, roof flashing and rooftop units as required.
Electrical Repairs: Maintain and repair outside lights, replace ballasts and lamps as required.
Paved Areas: Maintain and repair all asphalt and paved areas (including but not limited to pavement
surface, curbs, sidewalks, catchbasins and concrete dolley pads).
Parking Lot Sweeping: Sweep entire parking lot.
Parking Lot Striping: Line paint parking areas.
Landscaping: Fertilizing, weed spraying, lawn cutting, till and edge all beds and tree pits,
pruning all shrubs as required, spraying of insects on trees and shrubs. Pruning
and root feeding all trees and replacing dead plant material as required.
Lawn Sprinklers: Start-up and winterize irrigation system, replace sprinkler heads as required and maintain
system.
Spring Clean-Up: General spring clean-up of debris accumulated over the winter months.
Window Cleaning: Clean exterior windows six (6) times per year
SCHEDULE "D"
LANDLORD'S WORK
The Landlord shall, at its own expense, provide the following work to the Leased
Premises prior to the Commencement Date. Such work shall be completed in a good
and workmanlike manner, subject to delays by causes beyond the Landlord's
reasonable control.
The Leased Premises will comprise exterior materials of architectural precast
panels to the office, with tinted thermopane, sealed float glass units in
colored aluminum frames. The warehouse area will have insulated, prefinished
metal panels.
Heights Nominally 10'-0" to the suspended acoustic ceiling in the office area and
30'-0" to the underside of the structural steel in the warehouse.
Office Area Finishes Suspended T-bar ceiling with 2'-0" x 4'-0" acoustic tile, lay-in. All
interior partitions to be 10'-0" high. Steel stud and drywall, 2"
fiberglass sound attenuation batts between metal studs in the partitions
designated as insulated. Doors to be 3'-0" x 7'-0" in hollow metal frames,
including hardware. Landlord to provide glass vestibule at main entrance to
the office area. Male/female washrooms are provided within this space for
the office area and a separate set of washrooms for the warehouse
employees, in accordance with a mutually agreed upon partitioning layout
and local codes. Landlord to provide electric, wiring to the office area
with voice and data outlets / connection points at locations designated by
the Tenant. Flooring and millwork for the office and washrooms area to be
installed by Tenant.
Lunchroom To accommodate twenty-five (25) employees, complete with counters by the
Tenant, provision for a refrigerator, microwave, hot/cold running water and
electrical for vending equipment as mutually agreed.
HVAC Supply all labor, equipment, and materials that are required for the
complete installation and testing of the new heating, ventilating and
air-conditioning systems to the office. Heating and air-conditioning by
means of a constant volume system. Supply and install heating to the
warehouse area by means of gas-fired unit heaters, suspended from joists.
Electrical Main electrical service to be 600 amps, 347/600V, 3 phase, 4 wire. The
following general illumination is provided: Office - 65 FC by commercial
fluorescent fixtures, Warehouse - 30 FC by metal halide HID lighting,
400-watt fixtures, one fixture per 550 s.f. of warehouse area.
Concrete Floors The floor slab to the office area, to be four-inch (4") concrete with one
layer of reinforcing mesh, finished and cured. The floor slab to the
warehouse area to be seven-inch (7") concrete reinforced with 25 kg/m3
steel fibers reinforcing. Traprock floor hardener shall be applied at the
rate of 60 lbs./100 sq. ft. premixed. No provision is made for pads, pits
or bases. Bay sizes to be 36'-0" X 45'-0". Landlord to provide Defined
Traffic F min 40 floor flatness tolerance to 22,680 s. f. of contiguous
warehouse space where designated by the Tenant.
Fire Protection Landlord to supply and install a standard wet-type sprinkler system to
light hazard requirements in the office. Landlord to supply and install an
E.S.F.R. sprinkler system in the warehouse.
Overhead Doors Supply and install fourteen (14) 8'-0" X 10'-0" insulated metal,
manually operated overhead doors at shipping and receiving area, each
complete with door seal, rubber bumpers, and 35,000 lb. manually operated
dock leveler. Supply and install one (1) 12'-0" X 10'-0" insulated metal,
electrically operated overhead doors with four (4) steel pipe protection
bollards.
Exterior Landscaping and sodding provided for entire site, with asphalt-paved
driveways and parking areas. Landlord to provide chain-link fenced-in area
for truck/trailer parking adjacent to shipping/receiving area.
Page #2 of Schedule "D"
Items Not Included The following items have not been included: Winter construction charges,
other floor loadings or finishes, garbage protecting equipment, furniture,
signs, security or other alarm systems, computer rooms, process electrical
or mechanical, task lighting, additional lighting to suit racking layout,
cooling to the production area, painting structural steel or deck, truck
restraints, canopy over truck area, pit for scale, flammable/hazardous
material storage room, process drains and interceptors, carousels, and
G.S.T.
INDEMNITY AGREEMENT
THIS AGREEMENT is dated the 12th day of August, 2003
B E T W E E N:
ORLANDO CORPORATION
(hereinafter called the "LANDLORD")
OF THE FIRST PART;
- and -
THE CHILDREN'S PLACE RETAIL STORES, INC.
(hereinafter called the "INDEMNIFIER")
OF THE SECOND PART;
IN ORDER TO induce the Landlord to enter into the Lease dated the 12th day of
August , 2003 between Orlando Corporation (as Landlord) and The Children's Place
(Canada), LP (the "Tenant") by TCP Investment Canada II Corp., General Partner
regarding the property municipally known as 6040 Cantay Road, in the City of
Mississauga, Province of Ontario (the "Lease") and more particularly described
therein, and other good and valuable consideration (the receipt and sufficiency
of which consideration is hereby acknowledged) the Indemnifier hereby makes the
following Indemnity and agreement (the "Indemnity") with and in favour of the
Landlord:
1. The Indemnifier shall at all times, perform and observe all covenants,
provisoes, conditions and agreements on the part of the Tenant to be
performed or observed under the Lease including but not limited to the
payment of Rent and all other amounts from time to time payable under
the Lease.
2. The Indemnifier shall indemnify the Landlord with respect to all loss
to and damage that may be suffered by the Landlord in consequence of
any default by the Tenant in the performance and/or observance of all
of the Tenant's obligations and covenants under the Lease.
3. The Indemnifier's obligation pursuant to this Indemnity is that of a
principal obligor and not a mere guarantor or surety and the
Indemnifier shall be jointly and severally bound with the Tenant to
the Landlord for the due performance of all of the Tenant's
obligations under the Lease
4. If any default shall be made by the Tenant in the performance of any of
its obligations under the Lease, the Landlord shall not be bound or
required to proceed against the Tenant or any other obligated person or
to have recourse to or exhaust any security from time to time held by
it for the performance of such obligation or to pursue any other remedy
whatsoever which may be available to it, before proceeding against the
Indemnifier.
5. The obligations of the Indemnifier under this Indemnity shall in no way
be released, discharged or reduced and the rights of the Landlord under
this Indemnity shall in no way be prejudiced or impaired by any
neglect, delay or forbearance of the Landlord in demanding, requiring
or enforcing performance by the Tenant of any of its obligations under
the Lease or by the Indemnifier of any of its obligations under this
Indemnity or by granting any extensions of time for performance or by
waiving any performance (except as to a particular performance which
has been expressly waived in writing by the Landlord) or by permitting
or consenting to any assignment or subletting referred to in the Lease
or by the dissolution of the Tenant or any other event or occurrence
which would have the effect in law of terminating the existence or
obligations of the Tenant prior to the expiration of the term of the
Lease (except by the voluntary acceptance by the Landlord of a
surrender of the Lease) or by any agreements or other dealings between
the Landlord and the Tenant having the effect of amending or altering
the Lease or the obligations of the Tenant thereunder or by any want of
notice by the Landlord to the Indemnifier of any default of the Tenant
or by any other matter, thing, act or omission of the Landlord
whatsoever.
-2-
6. Without limiting the generality of the foregoing, the liability of the
Indemnifier under this Indemnity shall not be (and shall be deemed to
not have been) waived, released, discharged, impaired or affected by
reason of the release or discharge of the Tenant in any receivership,
bankruptcy, winding-up or other creditors' proceedings or the
repudiation, rejection, disaffirmance or disclaimer of the Lease in any
proceeding including, without limitation, any proceeding under the
Bankruptcy and Insolvency Act (Canada) and shall continue with respect
to the periods prior thereto, thereunder and thereafter, for and with
respect to the Term as if the Lease had not been disaffirmed or
disclaimed.
7. The obligations of the Indemnifier pursuant to this Indemnity shall
extend to the Term of the Lease and to any overholding by the Tenant
thereafter and to any renewal or extension of the Term of the Lease
which results from the exercise by the Tenant of any right or option
contained in the Lease.
8. The Indemnifier shall only be released by payment in full of all monies
that the Landlord would have received pursuant to the Lease, if the
Lease had continued throughout the Term thereof unless the Lease shall
have been terminated by the Landlord for any reason other than an Event
of Default occurring under the Lease or the Landlord shall have
voluntarily accepted a surrender of the Lease. Notwithstanding the
foregoing, the Landlord agrees that following receipt of a written
request accompanied by the Tenant's current audited financial
statements, it will fully release the Indemnifier from its obligations
hereunder should the Landlord be satisfied on the basis of such
financial statements (and such other financial information and records
as the Landlord may reasonably require) that the tangible net worth of
The Children's Place (Canada), LP exceeds ($Cdn.) Twenty Million
($20,000,000.00) Dollars. For the purpose of determining whether such
threshold has been met, tangible net worth shall be deemed to be the
amount of the limited partnership's total assets in excess of the
amount of its total liabilities, less its goodwill and other intangible
assets; and any such release, in order to be effective, shall be in
writing signed by the Landlord.
9. This Indemnity shall be governed by and construed in accordance with
the laws of the Province of Ontario.
10. The Indemnifier shall submit to the jurisdiction of the governing laws
of the Lease and any action or proceedings brought by the Landlord to
enforce its rights pursuant to this Indemnity.
11. Any notice, request, demand or other writing pursuant to this Indemnity
shall be sufficiently given if delivered by hand and left at the
recipient's address, or transmitted by telecopier, addressed as
follows:
In the case of notice to the Landlord to:
Orlando Corporation
5th Floor
6205 Airport Road
Mississauga, Ontario
L4V 1E3
Attention: President
Facsimile No: (905) 677-2824
And in the case of notice to the Indemnifier to:
The Children's Place Retail Stores, Inc.
915 Secaucus Road
Secaucus, NJ 07094
Attention: Vice President, Real Estate
Facsimile No: (201) 558-2832
With a copy to the General Counsel
Facsimile No: (201) 558-2840
-3-
Either the Landlord or the Indemnifier may from time to time by notice
given in accordance with the provisions of this Section, change its
address or other details pertaining to such address set out above, and
from and after the date, such notice is deemed to have been received as
hereinafter provided, the address or other details set out above
pertaining to the party giving such notice shall be deemed amended in
accordance with such notice.
Any notice given as aforesaid and delivered by hand or facsimile shall
be deemed to have been received on the date of delivery or transmission
as the case may be.
12. The expressions "Event of Default", "Landlord", "Tenant", "Term" and
"Rent" and other terms or expressions where used in this Indemnity,
respectively, have the same meaning as in the Lease.
13. The Indemnifier hereby acknowledges receipt of an executed copy of the
Lease and this Indemnity.
14. Wherever in this Indemnity reference is made to either the Landlord or
the Tenant, the reference is deemed to apply also to the respective
heirs, executors, administrators, successors and assigns and permitted
assigns, respectively, of the Landlord and the Tenant, as the case may
be, named in the Lease. Any assignment by the Landlord of any of its
interest in the Lease operates automatically as an assignment to such
assignee of the benefit of this Indemnity.
IN WITNESS WHEREOF the Landlord and the Indemnifier have
signed this Indemnity.
LANDLORD: ORLANDO CORPORATION
Per: /s/ Doug Kilner
-------------------------------
Name: Doug Kilner
Title: President
Per: /s/ William O'Rourke
Name: William O'Rourke
Title: SVP, Finance
We have the Authority to Bind the Corporation
INDEMNIFIER: THE CHILDREN'S PLACE RETAIL STORES, INC.
Per: /s/ Mark Rose
-------------------------------
Name: Mark Rose
Title: Vice President
Per: /s/ Susan Schiller
----------------------------------------
Name: Susan Schiller
Title: Vice President
I/We have the Authority to Bind the Corporation
SURRENDER OF LEASE
THIS AGREEMENT dated of the 12th day of August, 2003
B E T W E E N:
ORLANDO CORPORATION, AND
ORION PROPERTIES LTD.
(hereinafter called the "Landlord")
OF THE FIRST PART
- and -
THE CHILDREN'S PLACE (CANADA), LP
BY TCP INVESTMENT CANADA II CORP., GENERAL PARTNER
(hereinafter called the "Tenant")
OF THE SECOND PART
WHEREAS:
(a) By a lease dated the 21st day of August, 2000 between the
Landlord and HMV Canada Inc. (herein "HMV"), as tenant (the
"Lease"), the Landlord did demise and lease unto HMV, for a
term of five (5) years commencing on the 1st day of October,
2000 and ending on the 30th day of September, 2005 (the
"Term"), the premises municipally known as 6291 Ordan Drive
and being more particularly described in the Lease (the
"Leased Premises");
(b) Pursuant to an assignment dated April 10, 2002 (the
"Assignment"), HMV assigned the Lease to the Tenant effective
the 15th day of May, 2002;
(c) By a consent to assignment dated the 5th day of April, 2002,
the Landlord gave its consent to the Assignment; and
(c) The Tenant and Landlord have entered into a lease dated as of
August 12, 2003 (the "New Lease") in respect of the premises
municipally known as 6040 Cantay Road, Mississauga and the
Tenant has agreed to surrender the Lease and vacate the Leased
Premises as of the day before the commencement date of the New
Lease (the "Surrender Date").
NOW THEREFORE THIS AGREEMENT WITNESSETH that, in consideration
of the covenants herein contained and other good and valuable consideration (the
receipt and adequacy of which is hereby acknowledged), the parties hereto hereby
agree as follows:
1. The Tenant hereby assigns, surrenders and yields up unto the Landlord, its
successors and assigns, the Lease and the Leased Premises and the unexpired
residue of the Term subsequent to the Surrender Date to the intent that the Term
subsequent to the Surrender Date and all estate and right of the Tenant in the
Leased Premises subsequent to the Surrender Date shall be merged and
extinguished in the reversion expectant thereon, and covenants with the Landlord
that it has the right, full power and absolute authority to assign, surrender
and yield up the Lease and the Leased Premises.
3. The Tenant releases the Landlord from any and all liability arising under or
by virtue of the Lease other than liability which the Lease expressly provides
will continue after any termination of the Lease.
4. Provided that: (a) the Tenant has paid to the Landlord the Rent and all other
amounts owing and/or are payable by the Tenant under the Lease up to and
including the Surrender Date; (b) the Tenant has performed, complied with and
satisfied all of the Tenant's covenants, obligations and liabilities under
and/or in respect of the Lease up to and including the Surrender Date; and (c)
the Tenant surrenders to the Landlord vacant possession of the Leased Premises
in accordance with the provisions of the Lease by no later than the Surrender
Date, then the Landlord releases the Tenant from liability arising or accruing
under the Lease subsequent to the Surrender Date provided that the Tenant shall
not be released with respect to any environmental contamination of the Leased
Premises that may accrue or arise prior to the Surrender Date or any liability
of the Tenant which the Lease expressly provides will continue after any
termination of the Lease.
5. The within surrender and the Tenant's within release shall be effective as of
the Surrender Date.
6. This Agreement shall enure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns.
-2-
IN WITNESS WHEREOF the parties hereto have executed this Agreement
LANDLORD: ORLANDO CORPORATION
Per: /s/ Doug Kilner
---------------------------------------
Authorized signing officer
Name: Doug Kilner
Title: President
Per: /s/ William O'Rourke
---------------------------------------
Authorized signing officer
Name: William O'Rourke
Title: SVP, Finance
We Have Authority to Bind The Corporation
LANDLORD: ORION PROPERTIES LTD., (BY ITS AUTHORIZED
PROPERTY MANAGER ORLANDO CORPORATION
Per: /s/ Doug Kilner
---------------------------------------
Authorized signing officer
Name: Doug Kilner
Title: Authorized Signing Officer
Per: /s/ William O'Rourke
---------------------------------------
Authorized signing officer
Name: William O'Rourke
Title: Authorized Signing Officer
We Have Authority to Bind The Corporation
TENANT: THE CHILDREN'S PLACE (CANADA), LP
BY TCP INVESTMENT CANADA II CORP.,
GENERAL PARTNER
Per: /s/ Mark Rose
---------------------------------------
Authorized signing officer
Name: Mark Rose
Title: Vice President
Per: /s/ Susan Schiller
---------------------------------------
Authorized signing officer
Name: Susan Schiller
Title: Vice President
I/We Have Authority to Bind The Corporation