Exhibit 10.70


 


LEASE TERMINATION
AGREEMENT


 


THIS LEASE TERMINATION
AGREEMENT (this “Agreement”) made as of this 12th day of March, 2009 between
HARTZ MOUNTAIN ASSOCIATES, a New Jersey general partnership, having an office
at 400 Plaza Drive, P.O. Box 1515, Secaucus, New Jersey 07096-1515 (“Landlord”)
and THE CHILDREN’S PLACE SERVICES COMPANY, LLC, a Delaware limited liability
company, having an office at 915 Secaucus Road, Secaucus, New Jersey (“Tenant”);


 


WHEREAS by an Agreement
of Lease dated June 30, 1998, as amended by Letter Agreement dated June 30,
1998, Lease Modification Agreement dated November 20, 1998, Second Lease
Modification Agreement dated November 19, 2004, Consent to Assignment and
Assumption of Lease Agreement dated October 30, 2004, Lease Termination
Agreement dated May 3, 2006, and Agreement dated November 27, 2006 (collectively,
“the Lease”), Landlord leased certain Demised Premises (as that term is defined
in the Lease) at 915 Secaucus Road, Secaucus, New Jersey to Tenant; and


 


WHEREAS, the parties are
desirous of providing for the termination of the Lease Term prior to the date
provided in said Lease;


 


NOW, THEREFORE, in
consideration of Ten and 00/100 Dollars ($10.00) in hand paid by Tenant to
Landlord, the receipt and sufficiency of which are hereby acknowledged and the
mutual promises set forth herein, it is agreed that:


 


1.             Notwithstanding the
provisions of Article 1.01 N., the Lease shall terminate and Tenant shall
vacate the Demised Premises as of January 31, 2010 (the “New Expiration
Date”) with the same effect as though said date were the Expiration Date set
forth in the Lease.  Tenant shall vacate
and surrender the Demised Premises on the New Expiration Date in accordance
with Article 24 of the Lease.


 


2.             Notwithstanding the
provisions of Articles 1.01 O. and 3 of the Lease, but on the express condition
that Tenant shall not be in default of the 500 Plaza Drive Lease (defined
below) beyond the applicable notice and cure periods, if any, so established in
the 500 Plaza Drive Lease, Tenant’s obligation for the payment of Fixed Rent
under the Lease shall be suspended (and Tenant shall not be obligated to pay
same) effective February 1, 2009 and continuing through the New Expiration
Date (subject, however, to Tenant’s obligation to re-commence payment of the
Fixed Rent due under the Lease during any period of time prior to the New
Expiration Date that Tenant is in default of the 500 Plaza Drive Lease). Except
as expressly provided herein with respect to the Fixed Rent, Tenant agrees to continue
to promptly satisfy all accounts owing by reason of its occupancy of the Demised
Premises plus all applicable utility charges, real property taxes, maintenance
charges, and the cost of any repairs by reason of Tenant’s occupancy or removal
of its goods and equipment from the Demised Premises as set forth in the Lease.
It is agreed that all adjustments for charges detailed 


 

















 


hereunder (with the sole
exception of Fixed Rent) shall be made as of New Expiration Date.


 


3.             Tenant warrants that
in consideration of Landlord’s termination of the Lease, it shall vacate the Demised
Premises in accordance with Paragraph 1 of this Agreement.  In the event that Tenant shall not, for any
reason so vacate the Demised Premises, Landlord shall not be precluded from
pursuing Tenant for any further damages arising therefrom.  If Tenant shall vacate the Demised Premises
as provided herein and pay to Landlord all sums owing pursuant to paragraphs 2
and 6 hereof, Landlord shall thereafter return to Tenant its security deposit
(in the form of a Letter of Credit) in the amount of $175,000.00 as provided
for in Article 8 of the Lease. Notwithstanding anything contained herein
to the contrary, nothing contained in this Agreement shall release Tenant from
any of its obligations under Article 13 or Article 21 of the Lease.


 


4.             This agreement shall
inure to the benefit of and be binding upon the successors and assigns of the
parties hereto.


 


5.             Notwithstanding the
previous Paragraph, Tenant shall not enter into any agreements of assignment,
subletting or encumbrance pursuant to Article 11 of the Lease.


 


6.             In consideration of
Landlord’s consent to the termination of the Lease prior to its stated
Expiration Date, Tenant shall pay to Landlord, in good funds, as an Additional
Charge under the Lease, a “Termination Fee” in the amount of Three Million Five
Hundred Thousand and No/100 Dollars ($3,500,000.00) as follows:


 


(i) The sum of One
Million Seven Hundred Fifty Thousand and No/100 Dollars ($1,750,000.00) shall
be paid to Landlord upon execution and delivery of this Agreement; and


 


(ii)  The sum of One
Million Seven Hundred and Fifty Thousand and No/100 Dollars ($1,750,000.00)
shall be paid to Landlord on or before the date which is three (3) months
from the date of execution and delivery of this Agreement.


 


7.             Tenant represents
that its North American Industrial Classification System (“NAICS Code”) [as
that term is referred to in the Environmental Clean-Up Responsibility Act (“ISRA”),
N.J.S.A. 13:1K-1] is 5651.  Tenant
further represents that the Demised Premises do not constitute an “Industrial
Establishment” pursuant to ISRA.  In the
event Tenant is subject to ISRA, Tenant will comply with all statutes,
regulations, rules, ordinances, or other directives governing the termination
of Tenant’s Lease.


 


8.             The performance by
Tenant of its obligations under this Agreement shall not be deemed conditions
to the termination of the Lease as set forth in Paragraph 1. hereof.


 


9.             The Landlord and
Tenant represent and warrant to each other that the signatories hereto are duly
authorized to act on their respective behalf in the entering into this
Agreement.


 


10.           Tenant certifies
that:  (i) It is not acting,
directly or indirectly, for or on behalf of any person, 


 


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group, entity, or nation
named by any Executive Order or the United States Treasury Department as a
terrorist, “Specially Designated National and Blocked Person,” or other banned
or blocked person, entity, nation, or transaction pursuant to any law, order,
rule, or regulation that is enforced or administered by the Office of Foreign
Assets Control; and (ii)  it is not engaged in this transaction, directly
or indirectly on behalf of, or instigating or facilitating this transaction,
directly or indirectly on behalf of, any such person, group, entity, or nation.
Tenant hereby agrees to defend, indemnify, and hold harmless Landlord from and
against any and all claims, damages, losses, risks, liabilities, and expenses
(including attorney’s fees and costs) arising from or related to any breach of
the foregoing certification.


 


11.           Capitalized terms
referenced herein shall have the meaning ascribed to such terms in the Lease
unless otherwise set forth herein.


 


12.           This Agreement, and the
rights and obligations of the parties hereto, is/are expressly conditioned and
contingent upon the execution of that certain Lease Agreement by and between
500 Plaza Drive Corp., an affiliate of Landlord, and Tenant for premises
located at 500 Plaza Drive, Secaucus, New Jersey (the “500 Plaza Drive Lease”).
In the event the 500 Plaza Drive Lease is not executed and delivered by the
parties thereto, then this Agreement shall be deemed terminated, and the rights
and obligations of the parties hereunder shall be rendered null and void and
without further force and effect.


 


IN WITNESS WHEREOF, the
parties have caused this Lease Termination Agreement to be signed by their duly
authorized officers, and their corporate seals to be affixed hereto, the day
and year first above written.


 


 


	
   

  	
   

  	
  HARTZ MOUNTAIN
  ASSOCIATES

  
	
   

  	
  By:

  	
  Hartz Mountain
  Industries, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Irwin A. Horowitz

  
	
   

  	
   

  	
  Irwin A. Horowitz,
  Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  THE CHILDREN’S PLACE
  SERVICES COMPANY, LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles Crovitz

  	
   

  	
   

  	
  By:

  	
  /s/ Susan J. Riley

  
	
   

  	
  Name:

  	
  Charles Crovitz

  	
   

  	
   

  	
   

  	
  Name:

  	
  Susan J. Riley

  
	
   

  	
  Title:

  	
  Interim Chief Executive
  Officer

  	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Vice
  President

  
									



 


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Copyright © Hartz
Mountain Industries, Inc. 2003. All Rights Reserved. No portion of this
document may be reproduced without the express written consent of Hartz
Mountain Industries, Inc.


 


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