TABLE OF CONTENTS
STANDARD OFFICE LEASE
ARTICLE 1.00
BASIC LEASE TERMS
Section 1.01 Parties 1
Section 1.02 Leased Premises 1
Section 1.03 Term 1
Section 1.04 Fixed Minimum Rent 1
Section 1.05 Notification Addresses 2
Section 1.06 Permitted Use 2
ARTICLE 2.00
RENT
Section 2.01 Fixed Minimum Rent 2
Section 2.02 Operating Expenses 2
Section 2.03 Definition of Operating Expenses 3
Section 2.04 Late Payment Charge 3
Section 2.05 Increase in Insurance Premiums 3
Section 2.06 Security Deposit 3
Section 2.07 Holding Over 3
Section 2.08 Taxes and Assessments 3
ARTICLE 3.00
OCCUPANCY AND USE
Section 3.01 Use 5
Section 3.02 Signs 5
Section 3.03 Compliance with Laws, Rules and Regulations 5
Section 3.04 Warranty of Possession 5
Section 3.05 Inspection 5
ARTICLE 4.00
UTILITIES AND SERVICE
Section 4.01 Utilities 5
Section 4.02 Theft or Burglary 6
Section 4.03 Janitorial Service 6
Section 4.04 Excess Utility Consumption 6
Section 4.05 Window Coverings 6
Section 4.06 Charge for Service 6
ARTICLE 5.00
REPAIRS AND MAINTENANCE
Section 5.01 Lessor Repairs 6
Section 5.02 Lessee Repairs 7
Section 5.03 Request for Repairs 7
Section 5.04 Lessee Damages 7
ARTICLE 6.00
ALTERATIONS AND IMPROVEMENTS
Section 6.01 Construction of Improvements 7
Section 6.02 Detailed Plans and Specifications 8
Section 6.03 Approval of Plans 8
Section 6.04 Construction of Improvements;
Substantial Completion 8
Section 6.05 Lessee's Architect and Correction of Work 9
Section 6.06 Change Orders 9
Section 6.07 Entry Prior to the Completion Date 9
Section 6.08 Lessor's Construction Warranties 10
Section 6.09 Completion of Improvements 10
Section 6.10 Lessee Improvements 12
ARTICLE 7.00
CASUALTY AND INSURANCE
Section 7.01 Substantial Destruction 13
Section 7.02 Partial Destruction 13
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Section 7.03 Property Insurance 13
Section 7.04 Waiver of Subrogation 14
Section 7.05 Insurance Indemnification 14
Section 7.06 Lessor to Hold Harmless 14
ARTICLE 8.00
CONDEMNATION
Section 8.01 Substantial Taking 15
Section 8.02 Partial Taking 15
ARTICLE 9.00
ASSIGNMENT OR SUBLEASE
Section 9.01 Lessor Assignment 16
Section 9.02 Lessee Assignment 16
Section 9.03 Conditions of Assignment 16
Section 9.04 Rights of Mortgagee 17
Section 9.05 Estoppel Certificates 17
ARTICLE 10.00
DEFAULT AND REMEDIES
Section 10.01 Default by Lessee 18
Section 10.02 Remedies for ▇▇▇▇▇▇'s Default 18
ARTICLE 11.00
RELOCATION
Section 11.01 Relocation 19
ARTICLE 12.00
DEFINITIONS
Section 12.01 Abandon 19
Section 12.02 Act of God or Force Majeure 19
Section 12.03 Building or Project 19
Section 12.04 Commencement Date 19
Section 12.05 Completion Date 19
ARTICLE 13.00
MISCELLANEOUS
Section 13.01 Waiver 20
Section 13.02 Act of God 20
Section 13.03 Attorney's Fees 21
Section 13.04 Successors 21
Section 13.05 Allocation of Rent 21
Section 13.06 Bankruptcy or Insolvency 21
Section 13.07 Captions 24
Section 13.08 Notice 24
Section 13.09 Submission of Lease 24
Section 13.10 Corporate Authority 24
Section 13.11 Severability 24
Section 13.12 Lessor's Liability 25
Section 13.13 Broker Indemnification 25
Section 13.14 Consent 25
Section 13.15 Hazardous Materials 25
ARTICLE 14.00
AMENDMENT AND LIMITATION OF WARRANTIES
Section 14.01 Entire Agreement 26
Section 14.02 Amendment 26
Section 14.03 Limitation of Warranties 26
ARTICLE 15.00
OTHER PROVISIONS 27
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ARTICLE 16.00
SIGNATURES
ACKNOWLEDGMENTS 27
RULES AND REGULATIONS 28
EXHIBIT A 30
EXHIBIT B 31
EXHIBIT C 32
EXHIBIT D 35
EXHIBIT E 36
EXHIBIT F 37
ADDENDUM TO LEASE
STANDARD OFFICE LEASE 38
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ARTICLE 1.00 BASIC LEASE TERMS
1.01 PARTIES. THIS LEASE AGREEMENT ("Lease") is entered into by and
between the following Lessor and Lessee: CONTINENTAL ACQUISITIONS, INC., an Ohio
corporation ("Lessor"), ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇-▇▇▇▇ and WORLD FINANCIAL NETWORK NATIONAL BANK (U.S.) ("Lessee"), ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
1.02 LEASED PREMISES. In consideration of the rents, terms, provisions
and covenants of this Lease, Lessor hereby leases, lets and demises to Lessee
the land depicted in the attached Exhibit A which is located north of ▇▇▇▇▇▇
Road in Westerville, Ohio together with a 100,800 (approximate sq. ft.) building
(the "Building") and parking, landscaping and related improvements to be
constructed on the land pursuant to the terms of this Lease (collectively, with
the Building, the parking, landscaping and related improvements to the land
which are to be made pursuant to the terms of this Lease are known as the
"Improvements"). The land depicted in Exhibit A and the Improvements are
hereinafter referred to as the "leased premises". As promptly as possible after
the date hereof, Lessor shall cause a survey of the leased premises to be
prepared of the leased premises and the legal description prepared pursuant to
such survey shall be substituted as Exhibit A to this Lease.
1.03 TERM. Subject to and upon the conditions set forth herein, the
term of this Lease shall commence on the "completion date", which Lessor shall
use its best efforts to establish as January 26, 1991, and shall terminate One
Hundred Twenty (120) months thereafter.
1.04. FIXED MINIMUM RENT. Fixed minimum rent is $54,936.00 per month
for the first sixty (60) months, subject to adjustment as provided in the
following paragraphs of this Section 1.04. Fixed minimum rent for months 61
through 120 shall be 110.7% of the fixed minimum rent for the first 60 months,
as the same shall be adjusted pursuant to this Section 1.04.
Certain of Lessor's costs of construction which were factors in the
determination of the foregoing fixed minimum rent amount for the first sixty
(60) months were based on estimates of the amounts such items will cost or the
amounts of the bids to be received by Lessor from subcontractors to perform such
work. Such estimated items (the "Audit Items") and the estimated costs of such
items (the "Audit Item Estimates") are listed on the attached Exhibit ▇. ▇▇▇▇▇▇
shall give ▇▇▇▇ ▇▇▇▇▇ or any successor Director of Credit Operations of Lessee
prompt notice (which may be by telephone) of the receipt by Lessor of bids to
perform Audit Items which are subject to being bid (the "Audit Bid Items")
and, as part of such notice, Lessor shall, give to Lessee a recommendation as to
the bid to accept.
Items to notify Lessor of ▇▇▇▇▇▇'s preference as to the bid to accept. If the
total amount of the accepted bids for Audit Bid Items plus the actual costs of
other Audit Items shall be different (either less or more) than the sum of the
Audit Item Estimates for the Audit Items as set forth in Exhibit C, the fixed
monthly rent for the first sixty (60) months shall be adjusted by an amount
equal to the product of (a) the net difference between the Audit Item Estimates
for all Audit Items and the actual costs for all Audit Items, multiplied by (b)
.00967. Upon request by ▇▇▇▇▇▇, Lessor shall provide to Lessee reasonable
documentation showing the actual costs to Lessor for any or all of the Audit
Items. Lessee shall have the right to audit Lessor's books and records with
respect to Audit items.
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Attached hereto as Exhibit D is a list of certain additional items of
construction that ▇▇▇▇▇▇ has requested that Lessor cause to be performed (the
"Additional Items"). Lessor shall request bids for the performance of the
Additional Items. Lessee shall have the same rights and responsibilities with
respect to notice of and expression of preference as to bids for Additional
Items as Lessee has with respect to Audit Bid Items. The fixed monthly rent for
the first sixty (60) months of the lease shall be increased by the product of
(a) the total of Lessor's actual costs for the Additional Items multiplied by
(b) .01322.
In the event that any Change Orders are approved or requested by ▇▇▇▇▇▇
and the Net Change Order Cost is a positive number (as calculated pursuant to
Section 6.06), the Net Change Order Cost shall be reflected in the fixed minimum
rent as follows: monthly rent for the first sixty (60) months of the Lease shall
be increased by an amount equal to the product of (a) the Net Change Order Cost
multiplied by (b) .00967.
In the event that the Net Change Order Cost is a negative number, the Net
Change Order Cost shall be reflected in the fixed minimum rent as follows:
monthly rent for first sixty (60) months of the Lease shall be decreased by an
amount equal to the product of (a) the Net Change Order Cost multiplied by (b)
.00967.
If Lessee requests Lessor to make additional improvements after
completion of the leased premises, Lessee shall pay the agreed cost of such
requested improvements within thirty (30) days after receipt of an invoice
therefor.
1.05 NOTIFICATION ADDRESSES. (See 13.08).
Lessor's Address: ▇▇▇▇▇▇'s Address:
Continental Acquisitions, Inc. World Financial Network National
c/o Continental Real Estate Companies Bank (U.S.)
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Attention: Property Management
1.06 PERMITTED USE. General office and uses incidental thereto
including, without limitation, the operation of a cafeteria for Lessee's
employees and use of the parking lot and building for the occasional
entertainment of employees and guests.
ARTICLE 2.00 RENT
2.01 FIXED MINIMUM RENT. ▇▇▇▇▇▇ agrees to pay monthly as fixed minimum
rent during the term of this Lease the amounts of money set forth in Section
1.04 of this Lease, which amounts shall be payable to Lessor at the address
stated in Section 1.05 above. The first monthly installment of rent shall be
due and payable on the date of execution of this Lease by Lessee, and a like
monthly installment shall be due and payable on or before the first day of each
calendar month succeeding the completion date during the term of this Lease;
provided, if the completion date should be a date other than the first day of a
calendar month, the monthly rental set forth above shall be prorated to the end
of that calendar month, and the monthly rental payable on the first day of the
month next succeeding the completion date shall be equal to such prorated
amount. Lessee shall pay, as additional rent, all other sums due and payable
under this Lease on the date set forth herein by which such payments are to be
made.
2.02 OPERATING EXPENSES. Subject to the provisions of Sections 3.03,
5.01, 6.08, 7.02 and 8.02, Lessee shall be responsible for the maintenance of
both the interior and exterior portions of the leased premises and shall pay the
operating expenses associated therewith.
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2.03 DEFINITION OF OPERATING EXPENSES. [Intentionally Omitted.]
2.04 LATE PAYMENT CHARGE. Other remedies for nonpayment of rent
notwithstanding, if the monthly rental payment is not received by Lessor on or
before the tenth (10th) day of the month for which the rent is due, or if any
other payment due Lessor by Lessee is not received by Lessor on or before the
tenth (10th) day following receipt of an invoice or accounting, a late payment
charge of five percent (5%) of such past due amount shall become due and payable
in addition to such amounts owed under this Lease.
2.05 INCREASE IN INSURANCE PREMIUMS. If an increase in any insurance
premiums paid by Lessor for the Building is caused by ▇▇▇▇▇▇'s use of the leased
premises in a manner other than as set forth in Section 1.06, or if Lessee
vacates the leased premises and causes an increase in such premiums, then Lessee
shall pay as additional rent the amount of such increase to Lessor.
2.06 SECURITY DEPOSITS. [Intentionally Omitted.]
2.07 HOLDING OVER. In the event that Lessee does not vacate the leased
premises upon the expiration or termination of this Lease, Lessee shall be a
tenant for month to month for the holdover period and all of the terms and
provisions of this Lease shall be applicable during that period, except that,
unless Lessee and Lessor shall be negotiating for a renewal or extension of this
Lease, Lessee shall pay Lessor as fixed minimum rent for the period of such
holdover an amount equal to 150% of the fixed minimum rent which would have been
payable by ▇▇▇▇▇▇ had the holdover period been a part of the original term of
this Lease, based on the fixed minimum rent payable for the period immediately
prior to such expiration or termination. ▇▇▇▇▇▇ agrees to vacate and deliver
the leased premises to Lessor upon ▇▇▇▇▇▇'s receipt of notice from ▇▇▇▇▇▇ to
vacate and the expiration of any notice period required by law. The rental
payable during the holdover period shall be payable to Lessor on demand. Except
to the extent provided in the first sentence of this Section 2.07, no holding
over by ▇▇▇▇▇▇, without the consent of Lessor, shall operate to extend the term
of this Lease. In addition to rental due during any holdover period, in the
event Lessee fails to surrender the leased premises upon termination or
expiration of this Lease, then ▇▇▇▇▇▇ shall indemnify Lessor against loss or
liability resulting from any delay of Lessee in not surrendering the leased
premises including, but not limited to, any amounts required to be paid to third
parties who had or have a right to occupy the leased premises and were unable to
occupy said premises and any attorneys' fees related thereto. Any fixed minimum
rent paid by Lessee with respect to the holdover period pursuant to the
provisions of this Section 2.07 in excess of the fixed minimum rent that would
have been payable if determined in accordance with the rates in effect
immediately prior to the termination or expiration of the Lease shall be
credited against ▇▇▇▇▇▇'s indemnity obligation, if any.
2.08 TAXES AND ASSESSMENTS.
2.08.01 PAYMENT OF TAXES. Lessee shall pay, as the same become
due and payable, all taxes and assessments levied or imposed upon the leased
premises or any part thereof, during the entire term of this Lease (including
any renewals) commencing upon the completion date. Lessor shall provide Lessee
with a copy of all tax bills for the leased premises promptly upon ▇▇▇▇▇▇'s
receipt thereof. Lessee shall provide Lessor within ten (10) days after the
date for payment of such taxes and assessments, a receipt showing payment for
such taxes and assessments, unless Lessee shall have protested the same in good
faith and shall have provided for the payment thereof upon the determination of
such protest. If the taxing authority shall commence formal proceedings to
foreclose its lien on the leased premises or to otherwise collect the taxes and
assessments with respect to the leased premises from Lessor, Lessee shall
promptly cause such taxes and assessments to be paid, without
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prejudice to ▇▇▇▇▇▇'s right to contest the amount of such taxes and assessments.
Any penalties or interest accruing on such taxes which Lessee is obligated to
pay hereunder shall also be paid by ▇▇▇▇▇▇, unless Lessor shall have failed to
provide Lessee with copies of the tax bill with respect to which the penalties
or interest are due at least 10 days prior to the due date of such taxes, in
which event all penalties and interest with respect to such installment shall be
paid by Lessor.
2.08.02 EXCLUDED TAXES. Notwithstanding anything contained
herein to the contrary, ▇▇▇▇▇▇'s obligation hereunder shall not include any
assessment levied prior to the completion date, nor any special assessment
levied in respect of public or quasi-public improvements necessary for the
construction or operation of any property other than the leased premises,
including without limitation, the installation of water or sewer mains or the
construction, paving or widening of public streets or roads for the benefit of
such other property. Nothing herein contained shall be construed to include as
taxes and assessments levied or imposed upon the leased premises any
inheritance, estate, succession, transfer, gift, franchise, corporation, income
or net profit tax that is or may be imposed on Lessor. Taxes and assessments
for the first year of the term and for the last year of the term (including, if
applicable, the first option term or second option term), shall be prorated. If
any assessment or charge is payable in installments, ▇▇▇▇▇▇'s obligation in
respect thereof shall be determined as if ▇▇▇▇▇▇ had elected to pay the
assessment in installments, and Lessee shall be responsible for only those
installments or parts of installments which would be attributable to the term of
this Lease (including the first or second option term, if exercised). Lessor
shall cause the leased premises to become a separate tax parcel as soon as
practicable after the date hereof and, in all events, prior to the completion
date. If Lessor shall fail to cause the leased premises to become a separate
tax parcel at the time Lessee's obligation to pay taxes shall commence
hereunder, Lessee's obligation to pay such taxes shall be limited to the taxes
based on the value of the Building, and a pro rata share of the taxes based on
the value of the land in the tax parcel, which pro rata share shall be equal to
the product of such taxes based on the value of the land in the tax parcel
multiplied by a fraction, the numerator of which is the area in square feet of
the leased premises and the denominator of which is the area in square feet of
the entire tax parcel.
2.08.03 CONTESTS OF TAXES AND ASSESSMENTS. Lessee shall, at
its expense, upon notice to Lessor, have the right to contest any and all such
real estate taxes and assessments in its own name or in the name of and on
behalf of Lessor. Lessor shall, on the request of ▇▇▇▇▇▇, cooperate in such
contest, except for the cost thereof. If the taxing authority shall commence
formal proceedings to foreclose its lien on the leased premises or to otherwise
collect the taxes and assessments with respect to the leased premises from
Lessor, Lessee shall promptly cause such taxes and assessments to be paid,
together with any penalties and interest thereon (subject to the provisions of
Section 2.08.01) without prejudice to ▇▇▇▇▇▇'s right to contest the amount of
such taxes and assessments.
2.08.04 FAILURE TO PAY TAXES. If Lessee fails to pay such
taxes and assessments, Lessor may do so upon thirty (30) days prior written
notice to Lessee (unless Lessee is contesting the amount thereof pursuant to
Section 2.08.03) but shall not be obligated to do so, and such payment made by
Lessor shall be due from Lessee at the time of and along with the monthly
installment of rent for the month next succeeding the month in which such taxes
are paid by ▇▇▇▇▇▇, together with interest at the rate of fifteen percent (15%)
per annum.
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ARTICLE 3.00 OCCUPANCY AND USE
3.01 USE. ▇▇▇▇▇▇ agrees that the leased premises shall be used and
occupied only for the purpose as set forth in Section 1.06. Lessee shall occupy
the leased premises and conduct its business in a lawful manner and in a manner
so as not to create a nuisance. Lessee shall neither permit any waste on the
leased premises nor allow the leased premises to be used in any way which would
be extra hazardous on account of fire or which would in any way render void the
fire insurance on the Building.
3.02 SIGNS. No sign of any type or description shall be erected,
placed, or painted on the exterior portions of the leased premises or project
except those signs submitted to Lessor and approved by Lessor in writing.
3.03 COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Lessee, at
Lessee's sole cost and expense, shall comply with all laws, ordinances,
orders, rules and regulations of state, federal, municipal or other agencies
or bodies having jurisdiction over the use, condition or occupancy of the
leased premises. Lessee will comply with the rules and regulations of the
Building or project adopted by Lessor which are set forth and attached to
this Lease. Notwithstanding anything contained in this Lease to the contrary,
there shall be no obligation on the part of Lessee to comply with any of the
laws, directions, rules or regulations referred to which may require
structural alterations, structural changes, structural repairs, or structural
additions; all of which required structural alterations, changes, repairs or
additions shall be the obligation of Lessor unless made necessary by the
negligence or default of Lessee, in which event, Lessee shall comply at its
expense.
3.04 WARRANTY OF POSSESSION. Lessor warrants that it has the right and
authority to execute this Lease, and Lessee, upon payment of the required rents
and subject to the terms, conditions, covenants and agreements contained in this
Lease, shall have quiet possession of the leased premises during the full term
of this Lease as well as any extension or renewal thereof. Lessor shall not be
responsible for the acts or omissions of any third party not claiming by or
through ▇▇▇▇▇▇ that may interfere with ▇▇▇▇▇▇'s use and enjoyment of the leased
premises.
3.05 INSPECTION. Upon reasonable advance notice to Lessee, Lessor or
its authorized agents shall at any and all reasonable times have the right to
enter the leased premises to inspect the same, to supply any service to be
provided by Lessor, to show the leased premises to prospective purchasers or to
show the leased premises to prospective lessees during the last year of the term
of the Lease, and to repair the leased premises. Lessee hereby waives any claim
for damages for injury or inconvenience to or interference with ▇▇▇▇▇▇'s
business, any loss of occupancy or use of the leased premises, and any other
loss occasioned thereby; provided that Lessor shall undertake reasonable efforts
to minimize the disruption to Lessee's business as a result of such entry by
Lessor and if Lessor shall cause physical damage to the leased premises or
Lessee's personal property contained therein as a result of such entry, Lessor
shall promptly repair or replace the same at its own cost and expense. Lessor
shall not, have the right to retain a key to the building on the leased
premises. Lessor shall have the right to use any and all means which Lessor may
deem proper to enter the leased premises in an emergency without liability
therefor. Lessee shall provide Lessor with a list of persons having keys to the
Building and their home telephone numbers.
ARTICLE 4.00 UTILITIES AND SERVICE
4.01 UTILITIES. Lessee shall contract for and pay for all water, gas,
electricity and other utilities services during the term of this Lease which are
required by Lessee. Lessee shall pay all telephone charges for the leased
premises. From and after the time
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Lessee is permitted to occupy the leased premises for installation of its
furniture, fixtures and equipment until Substantial Completion of the January 26
Improvements (as hereinafter defined), Lessor shall continue to pay all utility
charges with respect to the leased premises, but within 10 days after receipt by
Lessee of copies of paid bills for utility services during such period, Lessee
shall reimburse Lessor for one-half of the cost of the utility services during
such period. During the period, if any. after Substantial Completion of the
January 26 Improvements and Substantial Completion of all Improvements, Lessor
shall continue to pay all bills for utility services but within 10 days after
receipt by ▇▇▇▇▇▇ of copies of paid bills for utility services during such
period, Lessee shall reimburse Lessor for a portion of the costs for utility
services during such period in an amount equal to the total utilities costs
during such period multiplied by the Partial Completion Fraction (as hereinafter
defined). Upon Substantial Completion of all Improvements, all utilities shall
be transferred into ▇▇▇▇▇▇'s name and paid by ▇▇▇▇▇▇.
4.02 THEFT OR BURGLARY. Lessor shall not be liable to Lessee for
losses to ▇▇▇▇▇▇'s property or personal injury caused by criminal acts or entry
by unauthorized persons into the leased premises or the Building.
4.03 JANITORIAL SERVICE. Lessee shall contract for and obtain
janitorial services to the leased premises and public areas of the Building at
Lessee's expense with such frequency as Lessee shall deem proper. Lessee shall
keep the leased premises in clean and orderly condition in accordance with
customary practices in Columbus, Ohio for similar office buildings.
4.04 EXCESS UTILITY CONSUMPTION. [Intentionally Omitted.]
4.05 WINDOW COVERINGS. Lessee shall be responsible for the purchase
and installation of window coverings for the Building.
4.06 CHARGE FOR SERVICE. [Intentionally Omitted.]
ARTICLE 5.00
5.01 LESSOR REPAIRS. Except as provided in Section 5.02 hereof, Lessor
shall keep the foundation, the structural soundness of the exterior walls,
structural parts, beams and members, the floors, floor slabs and other
structural components in good repair. Lessor shall make all repairs, interior
and exterior, if caused by shifting or settling of the foundation, footings or
floor slab (including replacements of all plate glass and other components of
the Building damaged thereby). Lessor shall at its own cost and expense without
chargeback to Lessee perform the maintenance and repair obligations set forth in
this Section and in Section 6.08. Except as expressly provided in this Lease,
Lessor shall not be liable to Lessee for any damage or inconvenience, and Lessee
shall not be entitled to any abatement or reduction of rent by reason of
repairs, alterations or additions made by Lessor under this Lease. Lessor shall,
at its own cost and expense without chargeback to Lessee, repair or replace any
damage or injury to all or any part of the leased premises caused by any act or
omission of Lessor or Lessor's agents, employees, invitees, licensees or
visitors. Lessor shall perform all maintenance and repair obligations which are
its responsibility hereunder so as to minimize the disruption of and
interference with ▇▇▇▇▇▇'s business. If Lessor shall enter the leased premises
to perform repairs to the Building and the performance of such repairs would
cause a material disruption such that Lessee cannot transact its business,
Lessee may require Lessor to perform such repairs during the period from 10:00
p.m. to 6:00 a.m. and during such additional hours, if any, when Lessee shall
not be conducting its business in the leased premises. If the repairs Lessor is
to perform shall be lengthy in duration, Lessee shall undertake reasonable
efforts, without being required to disrupt its business or make the conduct of
the same materially more
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inconvenient, to enable Lessor to perform all or more of such repairs during
daytime hours. In the event Lessor shall fail to make repairs, maintenance or
replacements required herein within 30 days after notice (except in an emergency
in which case Lessor shall respond immediately upon notice), Lessee shall have
the right, but not the obligation, to make said repairs, maintenance or
replacements on behalf of Lessor, and to ▇▇▇▇ ▇▇▇▇▇▇ for the cost thereof, with
such amount to be paid by Lessor to Lessee within 15 days of the date of
Lessee's bill. If Lessor shall fail to reimburse Lessee for such costs within 15
days, interest shall thereafter accrue on the amounts billed at the rate of 15%
per annum and Lessee, at its option, may withhold amounts equal to such costs
and interest from payments of rent or other payments falling due under this
Lease; provided, however, any notice given or required to be given Lessor under
this Section 5.01 shall also be given to any mortgagee of the leased premises of
whom Lessee has been notified, and Lessee shall have no right of offset until
▇▇▇▇▇▇ has satisfied all of the conditions set forth in the Lease to ▇▇▇▇▇▇'s
right of offset and ▇▇▇▇▇▇ has given such notice to ▇▇▇▇▇▇'s mortgagee, ▇▇▇▇▇▇
agrees to give Lessor prompt written notice of the need for any repair,
maintenance or replacement of which Lessee has actual knowledge. Notwithstanding
any other notice provision in this Lease, notice for repairs, maintenance or
replacements deemed by Lessee to be of an emergency nature can be made in any
reasonable manner calculated to give Lessor actual notice.
5.02 LESSEE REPAIRS. Lessee shall, at its own cost and expense, repair
or replace any damage or injury to all or any part of the leased premises caused
by any act or omission of Lessee or Lessee's agents, employees, invitees,
licensees or visitors and repair or replace damage or injury to any portion of
the leased premises, including but not limited to the roof, interior walls and
partitions, floor surfaces, interior doors and fixtures that Lessor is not
responsible to repair or replace pursuant to Section 5.01 hereof. Lessee shall
maintain the heating, ventilating and air conditioning system at its sole cost
an expense. Lessee shall keep the parking lot, grounds and Interior portions of
the leased premises in a clean and orderly condition and shall maintain the
parking lot, grounds and interior, non-structural portions of the leased
premises in good condition and repair. Lessee shall keep the parking lots clear
of ice and snow in a manner Lessee deems prudent. Lessee shall cause all lawns
to be mowed and all landscaping to be properly maintained. If Lessee fails to
make such repairs or replacements or perform such maintenance, within 15 days
after notice from Lessor, Lessor may, at its option,, make the repairs or
replacements or perform the maintenance, and the reasonable cost of such
repairs, replacements or maintenance shall be charged to Lessee as additional
rent and shall become payable by Lessee with the payment of the rent next due
hereunder together with interest at the rate of 15% per annum.
5.03 REQUEST FOR REPAIRS. Subject to Section 5.01, all requests for
repairs or maintenance that are the responsibility of Lessor pursuant to any
provision of this Lease must be made in writing to Lessor in accordance with
Section 13.08 hereof.
5.04 LESSEE DAMAGES. Lessee shall not allow any damage to be committed
on any portion of the leased premises or Building, and at the termination of
this Lease, by lapse of time or otherwise, ▇▇▇▇▇▇ shall deliver the leased
premises to Lessor in as good condition as existed at the commencement date of
this Lease, ordinary wear and tear and damage by fire, casualty or condemnation
excepted. The cost and expense of any repairs necessary to restore the
condition of the leased premises shall be borne by ▇▇▇▇▇▇.
ARTICLE 6.00 ALTERATIONS AND IMPROVEMENTS
6.01 CONSTRUCTION OF IMPROVEMENTS. Lessor shall design and construct
the Improvements in accordance with the Project Summary, the Plans (as
hereinafter defined) and this Lease.
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6.02 DETAILED PLANS AND SPECIFICATIONS. Lessor shall use its best
efforts to develop detailed plans and specifications (the "Plans") as soon as
possible after the date hereof for construction of the improvements. The Plans
shall be consistent with the summary of the construction to be performed by
Lessor attached hereto as Exhibit B (the "Project Summary"), the final terms
agreed to in meetings by Lessor and Lessee, all state, federal, county and
municipal laws, rules, regulations, orders and judgments, (collectively the
"Requirements of Law"), including, without limitation, all zoning and
environmental requirements, and with all easements, restrictions or reservations
affecting the leased premises. As a specific provisions with respect to the
foregoing, as promptly as practicable after execution of this Lease by the
parties hereto, Lessor and Lessee shall prepare and approve detailed plans and
specifications for the construction of the parking lot. Upon completion of the
Plans, the Plans shall be initialed by Lessor and Lessee and shall be attached
to and become a part of this Lease as Exhibit E hereto, or identified in a
written addendum which will be attached to and become part of this Lease as
Exhibit E hereto.
6.03 APPROVAL OF PLANS. No plans, drawings or specifications shall be
deemed to be part of the Plans until approved in writing by ▇▇▇▇▇▇. On or
before August 28, 1990, Lessor, shall submit complete dimensioned architectural,
structural and mechanical drawings for construction of the Improvements. On or
before August 28, 1990, ▇▇▇▇▇▇ will submit complete finishing plans for ▇▇▇▇▇▇'s
Work in the interior of the Improvements. ▇▇▇▇▇▇ agrees to review each phase of
the Plans within five (5) business days after receipt thereof. If ▇▇▇▇▇▇
disapproves of any aspect of the proposed Plans, Lessee shall advise Lessor of
the reasons for such disapproval, and shall review any resubmitted Plans within
three (3) business days after receipt thereof. All of the Plans shall be
subject to the approval of Lessee. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ mutually agree that they
will exercise good faith judgment in matters involving the preparation and
approval of Plans and ▇▇▇▇▇▇ and ▇▇▇▇▇▇ further agree that in the interest of
maintaining the work schedule for the project, the Lessor may commence site work
prior to final approval of Plans as provided for in this Section 6.03.
6.04 CONSTRUCTION OF IMPROVEMENTS; SUBSTANTIAL COMPLETION. Promptly
upon ▇▇▇▇▇▇'s approval of the Plans, Lessor shall procure, at its own sole cost
and expense, all necessary licenses, permits, approvals and authorizations
required by any applicable Requirement of Law, and shall promptly and diligently
construct the Improvements in good and workmanlike manner, using first class
workmanship and new, first class materials. Lessor shall use its best efforts
to achieve Substantial Completion of the Improvements on or before January 18,
1991. As used herein, "Substantial Completion" means the date when construction
of the Improvements is sufficiently complete, in accordance with the Plans, so
that Lessee can occupy or utilize the Improvements for use as its office and all
service areas required for the operation of the leased premises for its intended
use, including, without limitation, the cafeteria, computer room and restrooms,
shall be fully operational and the CRT terminals, ▇▇▇▇▇▇▇ furniture and
telephone system have been installed and are fully operational. Without limiting
the generality of the foregoing, Substantial Completion shall not be deemed to
have occurred until such time as a certificate of occupancy for the leased
premises has been issued; the leased premises has passed all applicable fire and
safety inspections; all ceilings and lighting are in and operative; the parking
lot and all entrances to the leased premises have been constructed and paved in
accordance with the Plans; all walls and partitions which are Lessor's
responsibility have been erected, with doors installed, and have received final
painting or wall covering excluding striping of the walls by Lessee; all
carpeting and flooring have been installed; all heating, ventilation, air
conditioning, plumbing and electrical systems have been installed and are in
good working condition; debris caused by Lessor's contractors and utility
companies other than the telephone company have been removed, the leased
premises have been cleaned and are in broom-clean condition; and exclusive
possession of the leased premises, free and clear of Lessor's contractors, prior
tenants, occupants, leases or rights of occupancy is available for delivery to
Lessee. From time to time during the preparation of a construction schedule for
the leased premises and during the course
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of construction, Lessor shall provide to Lessee a progress chart showing
approximate target dates for completion of various aspects of the construction
and whether such construction is expected to be completed by such target dates
and shall further advise Lessee in writing no later than ten (10) days after
each calendar month of all delays in construction during the calendar month
which have been occasioned by conditions Lessor deems to be beyond its
reasonable control and which delays would have the result of extending the time
for completion of the Improvements. Notwithstanding anything to the contrary
provided in Section 13.02 of this Lease, the commencement of the Penalty Period
shall not be extended for any delays caused by an act of God or force majeure to
the extent that such delays shall be "made up" later in the same or any
subsequent construction phase. For example, if construction shall be delayed two
days during one phase of construction due to force majeure, but a subsequent
phase of construction shall be completed such that completion of the project is
only one day behind schedule, the commencement of the Penalty Period shall be
extended by only one day.
6.05 ▇▇▇▇▇▇'S ARCHITECT AND CORRECTION OF WORK. Lessee shall have the
right, at its own expense, to hire an architect ("▇▇▇▇▇▇'s Architect") for the
purpose of reviewing the Plans, monitoring progress of the construction of the
Improvements, or both. Lessor shall give ▇▇▇▇▇▇'s Architect access to the
leased premises at all times that work on the Improvements is in progress, and
at all other reasonable times, for the purpose of monitoring the progress of
construction and the compliance of the construction with the Plans.
6.05.01 Subject to the limitations on Lessor's obligation to
repair defects in the leased premises as provided in Sections 5.01 and 6.08,
Lessor shall promptly correct all work which is defective or fails to conform to
the Plans whether observed before or after Substantial Completion and whether or
not fabricated, installed or completed. Lessor shall bear all costs of
correcting such defective work.
6.05.02 Lessor shall bear the cost of repairing all work of
Lessee or separate contractors destroyed or damaged by the performance of
Lessor's obligations to correct its work as provided in this Section 6.05.
6.06 CHANGE ORDERS. A "Change Order" is a written order to Lessor
signed by ▇▇▇▇▇▇ issued after acceptance of the Plans, authorizing a change in
the Plans, the Project Summary or the work. The net aggregate increase or
decrease in the cost of constructing the Improvements which results from all
Change Orders is the "Net Change Order Cost," which shall be a positive number
in the event the Change Orders result in a net increase in the cost of
constructing the Improvements, or a negative number if the Change Orders result
in a net decrease. A Change Order signed by Lessor indicates his agreement
therewith, including the adjustment in the Net Change Order Cost. Lessor shall
be under no obligation to approve any Change Order requested by ▇▇▇▇▇▇ (a) if
the aggregate of all Net Change Order Costs after giving effect to such Change
Order would result in a net increase of $300,000 or more, or (b) unless Lessee
agrees to modify this Lease to reflect any extended date for Substantial
Completion of the Improvements which Lessor reasonably determines will be
required as a result of the proposed changes. Lessee may order changes in the
work within the general scope of the Plans consisting of additions, deletions or
other revisions, the Net Change Order Cost being adjusted accordingly. All such
changes in the work shall be authorized by Change Order, and shall be performed
under the applicable conditions of the Plans.
6.07 ENTRY PRIOR TO THE COMPLETION DATE. At such time as construction
of the Improvements has progressed to such point that installation of ▇▇▇▇▇▇'s
telephone system, fixtures or equipment can be accomplished without unreasonably
interfering with the progress of construction, Lessor shall so notify Lessee,
and Lessee shall thereupon have the right from time to time to enter upon the
leased
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premises for the purpose of making such installations. At such time as Lessee
shall begin to place its personal property in the leased premises, Lessee shall
have the right to cause security personnel to be stationed on the leased
premises at Lessee's cost and expense for the purpose of preventing loss of or
damage to ▇▇▇▇▇▇'s property. If Lessee shall desire to install or place
additional personal property on the leased premises prior to the completion
date, Lessor may require the execution and delivery of a reasonable hold
harmless letter or agreement by Lessee as a condition to placing such items on
the leased premises. Any such entry shall be subject to all of the terms and
conditions of this Lease, except that no rent or other charges (except as
otherwise provided in Section 4.01) shall be payable in respect to any time
prior to the Completion Date unless Lessee begins to operate its business in
which event rent shall be payable on a pro rata per diem basis to the
Completion Date. Each party shall use reasonable efforts, and shall cause its
contractors to use reasonable efforts, to coordinate the respective work being
done by them without interfering with work being done by the other.
6.08 ▇▇▇▇▇▇'S CONSTRUCTION WARRANTIES.
6.08.01 Lessor warrants and represents that the Improvements,
when completed, shall comply with the Plans and all applicable Requirements of
Law. If within one year after the date of Substantial Completion, any of the
work performed by Lessor pursuant to this Article 6.00 is found to be defective
or not in accordance with the Plans, or otherwise not in compliance with other
documents referred to in the preceding sentence, the Lessor shall correct it
after receipt of written notice from Lessee to do so. Lessee shall give notice
of non-complying or defective work within a reasonable time after discovery of
the condition. With respect to Building components, other than the roof, for
which manufacturers', materialmens' and contractors' warranties shall be issued,
Lessor shall assign such warranties to the Lessee promptly upon expiration of
Lessor's one-year construction warranty period. Lessor shall obtain a ten-year
warranty for the roof which shall be issued in the names of ▇▇▇▇▇▇ and Lessee.
Lessor shall cause a factory-certified installer to install the roof and shall
permit a factory representative to supervise the installation of the roof.
Lessor shall use its best efforts to secure manufacturers warranties for
Building components so that they may be assignable to Lessee.
6.08.02 Nothing contained in this Section 6.08 shall be
construed to establish a period of limitation with respect to any other
obligation which Lessor might have under the Plans or this Lease, including
Sections 6.08.03 and 7.06 hereof. The establishment of the time period of one
year after the date of Substantial Completion relates only to the specific
obligation of Lessor to correct the work, and has no relationship to the time
within which its obligation to comply with other provisions of this Lease may be
sought to be enforced, nor to the time within which proceedings may be commenced
to establish Lessor's liability with respect to its obligations other than
specifically to correct the work.
6.08.03. In addition to Lessor's repair obligations set forth in
Section 5.01 or elsewhere in this Lease, Lessor shall be responsible for and
repair and replace, at its sole cost and expense, all latent defects in Lessor's
construction of the Improvements which shall be discovered during the two-year
period after Substantial Completion of the Improvements. Lessee shall give
notice of latent defects within a reasonable time after discovery of the same.
If ▇▇▇▇▇▇ shall discover a latent defect in Lessor's construction of the
improvements during such two-year period in the course of a repair of the leased
premises by ▇▇▇▇▇▇, Lessee shall give Lessor a reasonable opportunity to inspect
such defect and Lessee shall then be entitled to complete such repair and
require reimbursement of the costs thereof from Lessor pursuant to Section 5.01
of this Lease.
6.09 COMPLETION OF IMPROVEMENTS.
6.09.01 If Lessor shall determine during the course of
construction that it may not be able to accomplish Substantial Completion of all
Improvements in accordance with the Plans on or
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before January 26, 1991, Lessor shall give prompt notice of such determination
to Lessee. Lessor shall thereafter undertake to achieve Substantial Completion
on or before January 26, 1991 of all interior Improvements in the area depicted
in Exhibit F and marked by crosshatching, all exterior Improvements and all
other Improvements designated by Lessee (the "January 26 Improvements"). If
Lessor shall accomplish Substantial Completion of the January 26 Improvements by
January 26, 1991, Lessee shall accept delivery of the January 26 Improvements
and Lessee's obligation to pay fixed minimum rent and additional rent shall
commence on January 26, 1991; provided that the proportion of fixed minimum
rent, taxes and insurance that Lessee shall be obligated to pay for January 1991
and thereafter until all Improvements are substantially completed shall be equal
to the product of the full amounts of such rent, taxes and insurance that would
have been payable by Tenant if all Improvements had been substantially completed
on January 26 multiplied by a fraction (the "Partial Completion Fraction"), the
numerator of which is the area, in square feet, of the floor space of the
interior January 26 Improvements and the denominator of which is the area, in
square feet, of the total floor space within the Building. Lessor shall use its
best efforts to cause the remaining Improvements to be completed by February 9,
1991. After January 26, 1991, Lessor shall cause the uncompleted portion of the
Building to be barricaded off from the January 26 Improvements when appropriate,
and Lessor shall undertake reasonable efforts to minimize disruption of Lessee's
business as a result of Lessor's completion of the balance of the Improvements.
6.09.02 Subject to the provisions of Section 13.02, if
Substantial Completion of the Improvements has not occurred on or before
xxxxxxxxxxxxxxxxxxxxxxx or such other date as may be mutually agreed upon
between Lessor and Lessee, then for the period following the Outside Date
until Substantial Completion (the "Penalty Period"), a penalty (the
"Penalty") equal to the product of the number of days in the Penalty Period
times $1667 (the "Per Diem Penalty") shall accrue. If the January 26
Improvements shall have been substantially completed on or before January 26,
1991, but the remaining Improvements shall not have been completed by the
Outside Date, the per diem penalty shall be equal to the product of the Per
Diem Penalty multiplied by the difference between one and the Partial
Completion Fraction. Lessee shall recover the Penalty by offsetting the
amount of such Penalty against Lessee's obligations to pay fixed minimum rent
and additional rent as provided herein until such time as the amount offset
by Lessee shall equal the amount of the Penalty. Should Substantial
Completion not occur prior to XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, Lessee
shall have the right to notify Lessor and ▇▇▇▇▇▇'s construction lender that
▇▇▇▇▇▇ has elected to complete the construction of the Improvement itself by
giving thirty (30) days advance notice of such election to Lessor and the
construction lender, and the right to give such notice (the "Takeover
Notice") shall extend until June 9, 1991. Promptly upon the expiration of
the 30-day notice period (if Lessor has not caused Substantial Completion to
occur during such period and Lessor's construction lender has not exercised
its right, if any, to complete construction of the Improvements and commenced
the completion of the Improvements), Lessor and Lessor's affiliates shall
assign to Lessee all rights of Lessor or Lessor's affiliates in and to all
contracts which are designated by Lessee for the construction of the
Improvements or for supplying materials for the Improvements. Lessor shall
cause all such contracts to be in a form so that they are assignable by
Lessor to Lessee and so that Lessee shall not have any liability to the other
parties to such contracts except with respect to services provided or
materials delivered after the assignment of the contracts to Lessee. Upon the
effectiveness of the Takeover Notice, Lessee shall have the right to go upon
the leased premises to complete the construction of the Improvements in
accordance with the Plans and such Change Orders as have been previously
approved by ▇▇▇▇▇▇. If ▇▇▇▇▇▇ shall complete the construction of the
Improvements pursuant to this Section 6.09.02, ▇▇▇▇▇▇, ▇▇▇▇▇▇'s successors
and the architects of ▇▇▇▇▇▇ and ▇▇▇▇▇▇'s successors
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shall have the same right of inspection as is given to Lessee in Section 6.05,
and Lessee shall promptly and diligently complete the construction of the
Improvements in a good and workmanlike manner and in compliance with all
Requirements of Law, using first class workmanship and new, first class
materials. Notwithstanding anything to the contrary provided in Sections 5.01
and 6.08, Lessor shall not be responsible for the repair of any Improvements and
shall not be deemed to have made any warranties with respect to the Improvements
if Lessee shall complete the construction of the Improvements, except that
Lessor shall be responsible for the repair of Improvements, to the extent
provided in Section 5.01, and shall be deemed to have made the warranties set
forth in Section 6.08 with respect to any and all discrete portions of the
Improvements which were completed by Lessor. Lessor shall cause Lessee to be a
party to the construction loan agreement with ▇▇▇▇▇▇'s construction lender,
which loan agreement shall recognize and provide for the foregoing rights of
Lessee and shall provide for the payment of all remaining, unpaid construction
draws to Lessee after Lessee shall have taken over construction of the
Improvements, subject to the same draw requirements as were applicable to
Lessor. If the remaining construction draws shall be insufficient to pay
Lessee's actual, reasonable costs of completion of the Improvements, the excess
of the costs over the remaining loan draws (plus an imputed interest factor on
such unpaid excess costs at the rate of interest Lessor is required to pay on
its construction loan) shall be recoverable by offsetting such amounts against
Lessee's obligations to pay fixed minimum rent and additional rent as provided
herein until such time as the amount offset by Lessee shall equal the amount of
such excess costs plus interest at the foregoing rate. The foregoing right of
offset for excess costs shall be in addition to the right of offset to recover
the Penalty, and the offset for excess costs shall occur before the offset for
the Penalty shall commence. If Lessee shall have completed the construction of
the Improvements, ▇▇▇▇▇▇'s obligation to pay rent shall be deemed to have
commenced on the earliest of (a) the date of the issuance of a certificate of
occupancy for the leased premises, (b) the date Lessee shall have commenced the
operation of its business in the leased premises, or (c) the date Lessee should
have been able to commence the operation of its business in the leased premises
if the completion of the construction of the Improvements by Lessee had been
prosecuted with due diligence, subject, however, to force majeure.
6.10 LESSEE IMPROVEMENTS. Lessee shall not make or allow to be made
any alterations or physical additions in or to the leased premises without
first obtaining the written consent of Lessor, which shall not be
unreasonably withheld, provided that Lessee shall be permitted to make
non-structural site alterations or additions to the interior of the Building
which in each instance cost less than $100,000 without the prior written
consent of Lessor and further provided that Lessee shall be permitted to
construct a generator room at the rear of the Building so long as the same is
not visible from ▇▇▇▇▇▇▇ Road and to construct a microwave tower on the
leased premises without the prior written consent of Lessor. Lessee shall
provide Lessor with copies of all plans and specifications for Lessee's
improvements. Lessee warrants and represents that all of Lessee's
improvements shall be in compliance with all laws, ordinances, orders, rules
and regulations of state, federal, municipal or other agencies or bodies
having jurisdiction over the use, condition or occupancy of the leased
premises. Lessee shall cause all of its improvements to be modified to
comply with all such laws promptly upon receipt of notice that such
improvements are not in compliance. Any alterations, physical additions or
improvements to the leased premises made by Lessee shall at once become the
property of Lessor and shall be surrendered to Lessor upon the termination of
this Lease; provided, however, Lessor, at its option, may require Lessee to
remove any physical additions and/or repair any alterations in order to
restore the leased premises to the condition existing at the time Lessee took
possession, all costs of removal and/or alterations to be borne by Lessee.
This clause shall not apply to moveable equipment at the end of the term of
this Lease.
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ARTICLE 7.00 CASUALTY AND INSURANCE
7.01 SUBSTANTIAL DESTRUCTION. If the leased premises should be totally
destroyed by fire or other casualty, or if the leased premises should be damaged
so that rebuilding cannot reasonably be completed within 150 days after the date
of written notification by Lessee to Lessor of the destruction, this Lease may
be terminated by either party hereto by written notice to the other party given
within thirty (30) days after such fire or casualty; provided, however, that if
it shall be Lessor who elects to terminate the Lease, Lessee may prevent the
Lease from being terminated if Lessee shall deliver to Lessor within fifteen
(15) days of receipt by Lessee of Lessor's notice of termination a written
waiver and release of ▇▇▇▇▇▇'s right, if any, to cancel the Lease as provided in
Section 15.04 for all or a part of the period in which such right is available
to Lessee and, if necessary, a written exercise of one of renewal options set
forth in Section 15.01 so that the minimum remaining term of this Lease after
giving effect to such notice from Lessee shall be at least five full years.
Lessee shall not have the right to prevent the termination of the Lease by
Lessor if Lessee shall have previously given notice of its election to cancel
the Lease pursuant to Section 15.04 or if Lessee shall have failed to exercise
its option to renew the Lease by the dates specified in Section 15.01.
7.02 PARTIAL DESTRUCTION. If the leased premises should be partially
damaged by fire or other casualty, and rebuilding or repairs can reasonably be
completed within 60 days from the date of written notification by Lessee to
Lessor of the destruction, this Lease shall not terminate. If the leased
premises should be partially damaged by fire or other casualty, and rebuilding
or repairs can reasonably be completed within less than 150 but more than 60
days from the date of written notification by Lessee to Lessor of the
destruction, this Lease shall not terminate unless the damage or destruction
shall occur during the fourth through tenth years of this Lease, the 14th or
15th years of this Lease or the 19th or 20th years of this Lease, in which event
Lessor may terminate this Lease by giving written notice to Lessee within thirty
(30) days after such fire or casualty of ▇▇▇▇▇▇'s election to terminate the
Lease. If Lessor shall give such a notice of termination, Lessee shall have the
same right to prevent a termination of the Lease as is provided above in Section
7.01. If the Lease shall not be terminated pursuant to Section 7.01 or 7.02,
Lessor shall at its sole risk and expense proceed with reasonable diligence to
rebuild or repair the Building or other Improvements to substantially the same
condition in which they existed prior to the damage. If the leased premises are
to be rebuilt or repaired and are untenantable in whole or in part following the
damage, the rent payable under this Lease during the period for which the leased
premises are untenantable shall be adjusted to such an extent as may be fair and
reasonable under the circumstances. In the event that Lessor fails to complete
the necessary repairs or rebuilding within a reasonable period of time under the
circumstances after the date of written notification by Lessee to Lessor of the
destruction, Lessee may at its option terminate this Lease by delivering written
notice of termination to Lessor, whereupon all rights and obligations under this
Lease shall cease to exist. If this Lease shall be terminated pursuant to
Section 7.01 or 7.02, the rent shall be abated for the unexpired portion of the
Lease, effective as of the date of the written notification of termination is
given by one party to the other.
7.03 PROPERTY AND LIABILITY INSURANCE. Commencing not later than the
date of Substantial Completion of the Improvements, Lessee shall at all times
during the term of this Lease maintain a policy or policies of insurance with
the premiums paid in advance for fire, lightning, windstorm, hail, explosion,
and extended coverage insurance with the so-called "All Risk" endorsement,
issued by and binding upon some Responsible Insurance Carrier, insuring the
Building against all risk of direct physical loss for the full replacement cost
of the Building structure and its improvements and service equipment as of the
date of the loss (other than excavation
-13-
and foundation costs), with such deductibles as Lessee and its affiliates carry
in the course of their businesses. Lessor shall be named as an additional
insured as its interests may appear with respect to all such property insurance
policies maintained by Lessee with respect to the Building and Improvements and
the holder of any mortgage of whom ▇▇▇▇▇▇ has received notice as hereinafter
provided shall also be named as an additional insured pursuant to a standard
mortgagee clause or endorsement. Lessee may self-insure for loss of, or damage
to, ▇▇▇▇▇▇'s personal property (including, but not limited to, any furniture,
machinery, goods or supplies) upon or within the leased premises and any trade
fixtures installed or paid for by Lessee upon or within the leased premises.
Commencing not later than the date of Substantial Completion of the
Improvements, Lessee shall procure and keep in effect during the term hereof
with a Responsible Insurance Carrier public liability and property damage
insurance protecting Lessor and Lessee from all causes, including their own
negligence, having minimum limits of liability of One Million and 00/100 Dollars
($1,000,000.00) for damages resulting to one person, Two Million and 00/100
Dollars ($2,000,000.00) for damages resulting from one casualty, and Five
Hundred Thousand and 00/100 Dollars ($500,000.00) for property damage resulting
from any one occurrence, with such deductibles as Lessee and its affiliates
customarily carry in the course of their business. Except as provided in Section
7.06, Lessee shall be responsible for and pay to Lessor or such other person as
Lessor shall direct the amounts of any loss or damage within the deductibles
carried by Lessee with respect to any insurance required to be carried by Lessee
under this Section 7.03. Certificates evidencing all policies to be carried
hereunder by ▇▇▇▇▇▇ shall be delivered to ▇▇▇▇▇▇ and to the holder of any
mortgage affecting the leased premises on or before the date of Substantial
Completion of the Improvements, provided that ▇▇▇▇▇▇ shall have received
reasonable prior written notice of such mortgagee's name and address. At least
ten (10) days prior to the expiration date of any policy, certificates
evidencing the renewal or replacement policy for such insurance shall be
delivered by Lessee to Lessor and such mortgagee. All such policies shall
contain agreements by the insurers that (i) any loss properly payable to Lessor
and to the holder of any mortgage to whom a loss may be payable shall be payable
notwithstanding any act or negligence of Lessee which might otherwise result in
forfeiture of said insurance, and (ii) such policies shall not be cancelled or
modified except upon ten (10) days' prior written notice to each named insured
and loss payee. In the event Lessee shall fail to procure any insurance required
by this Section 7.03 and after ten (10) days' written notice to Lessee of such
failure, Lessor may, at its option, procure the same for the account of Lessee,
and the cost thereof shall be paid to Lessor as additional rent upon receipt by
Lessee of bills therefor. "Responsible Insurance Carrier" means an insurance
company licensed to and authorized to do business in the State of Ohio and rated
in Best's Insurance Guide or any successor thereto (or if there be none, an
organization having a national reputation) as having a general policyholder
rating of at least "A, Class X". Notwithstanding anything to the contrary
hereinabove contained, Lessee, at its option, may include any of the insurance
coverage hereinabove set forth in a general or blanket policy of insurance
provided that any such general or blanket policy shall provide, or the insurer
thereunder shall furnish Lessor with written assurance, that the policy limits
required hereunder are satisfied by such policy and that such coverage and
limits will be not less than that which would be provided under separate
policies even if there is a total loss of all properties covered by the blanket
policy.
7.04 WAIVER OF SUBROGATION. Anything in this lease to the contrary
notwithstanding, Lessor and Lessee hereby waive and release each other of and
from any and all right of recovery, claim, action or cause of action, against
each other, their agents, officers and employees, for any loss or damage which
is covered by insurance provided for hereunder, is required to be covered by
insurance under the provisions of Section 7.03 or is otherwise carried by such
party, regardless of cause or origin, including negligence of Lessor or Lessee
and their agents, officers and employees. Lessor and
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Lessee agree immediately to give their respective insurance companies which have
issued policies of insurance with respect to the leased premises, written notice
of the terms of the mutual waivers contained in this section, and to have the
insurance policies properly endorsed to reflect the waiver of such rights of
subrogation against ▇▇▇▇▇▇ and Lessee by the insurer.
7.05 INSURANCE INDEMNIFICATION. Except with respect to events
described in Section 7.06, Lessee shall indemnify, defend and hold Lessor
harmless from and against any and all expenses, liabilities, obligations,
damages, penalties, claims, accidents, costs and expenses, including reasonable
attorneys' fees, paid, suffered or incurred for death or damage or injury to
persons or property in, on or about the leased premises from any cause
whatsoever.
7.06 LESSOR TO HOLD HARMLESS.
7.06.01. CONSTRUCTION. Lessor will indemnify Lessee and save it
harmless from and against any and all expenses, liabilities, obligations,
damages, penalties, claims, accidents, costs and
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expenses, including reasonable attorneys' fees, paid, suffered or incurred for
death or damage or injury to persons or property in whole or in part out of the
design or construction of the Improvements by Lessor or Lessor's agents,
contractors or employees.
7.06.02. BREACH OF LEASE. Lessor will indemnify Lessee and save
it harmless from and against any and all expenses, liabilities, obligations,
damages, penalties, claims, accidents, costs and expenses, including reasonable
attorneys' fees, paid, suffered or incurred for death or damage or injury to
persons or property in whole or in part as a result of any breach by Lessor,
Lessor's agents, independent contractors, servants, employees or licensees of
any covenant or condition of this Lease, including without limitation the
obligation of Lessor to repair the structural portions of the leased premises as
provided in Section 5.01 or as the result of the carelessness, negligence or
improper conduct of Lessor, ▇▇▇▇▇▇'s agent, servants and employees, or as a
result of the breach by Lessor of any warranty contained in this Lease.
7.06.03. DEFENSE OF ACTION. In case any action or proceeding is
brought against Lessee by reason of any claim against which ▇▇▇▇▇▇ is to
indemnify Lessee pursuant to Section 7.06.01 or 7.06.02, Lessor, upon written
notice from ▇▇▇▇▇▇, will, at ▇▇▇▇▇▇'s expense, resist or defend such action or
proceeding.
ARTICLE 8.00 CONDEMNATION
8.01 SUBSTANTIAL TAKING. If all or a substantial part of the leased
premises are taken for any public or quasi-public use under any governmental
law, ordinance or regulation, or by right of eminent domain or by purchase in
lieu thereof, and the taking would prevent or materially interfere with the use
of the leased premises for the purpose for which it is being used or if the
total parking spaces on the leased premises shall be less than 675 because of
one or more takings, this Lease shall terminate and the rent shall be abated
during the unexpired portion of this Lease effective on the date physical
possession is taken by the condemning authority; provided that if a portion of
the parking lot shall be taken and the Lease would otherwise terminate pursuant
to the foregoing provisions, Lessor shall have a period of 45 days after such
taking to reconfigure the parking lot or to provide additional parking to Lessee
adjacent to or abutting the leased premises, without any public roadways
intervening between the parcels, so that the total parking spaces exclusively
available to Lessee shall exceed 675. No reconfiguration of the parking lot
shall materially impede access to the streets serving the leased premises or
access to the Building. The parking lot as reconfigured shall be in compliance
with all applicable laws and regulations, including zoning codes. Lessee shall
have no claim to the condemnation award, except that Lessor shall be required to
pay to Lessee out of the proceeds of Lessor's award received as a result of such
taking ▇▇▇▇▇▇'s unamortized cost of leasehold improvements, such amortization to
be on a straight-line basis over the scheduled original term of this Lease;
provided that if the award to Lessor for all improvements on the leased premises
shall be less than the combined cost of Lessor's and ▇▇▇▇▇▇'s improvements (the
"Total Cost"), ▇▇▇▇▇▇'s share of the award for the improvements on the leased
premises shall be equal to the product of the total award for improvements to
the leased premises multiplied by a fraction, the numerator of which is ▇▇▇▇▇▇'s
unamortized cost of leasehold improvements and the denominator of which is the
Total Cost. Lessor shall undertake reasonable efforts to cause the condemning
authority to separately value ▇▇▇▇▇▇'s Improvements. In addition, Lessee may
make any other claim permitted under Ohio law against the condemning authority,
as long as any award to Lessee shall in no way reduce the award to Lessor.
8.02 PARTIAL TAKING. If a portion of the leased premises shall be
taken for any public or quasi-public use under any governmental law, ordinance
or regulation, or by right of eminent domain or by purchase in lieu thereof, and
this Lease is not terminated as
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provided in Section 8.01 above, Lessor shall at Lessor's sole risk and expense,
restore and reconstruct the Building and other improvements on the leased
premises to the extent necessary to make it reasonably tenantable. The rent
payable under this Lease during the unexpired portion of the term shall be
adjusted to such an extent as may be fair and reasonable under the
circumstances. Except to the extent provided in Section 8.01 for a taking of
▇▇▇▇▇▇'s improvements, ▇▇▇▇▇▇ shall have no claim to the condemnation award;
however, Lessee may make any other claim permitted under Ohio law against the
condemning authority, as long as any award to Lessee shall in no way reduce the
award to Lessor.
ARTICLE 9.00 ASSIGNMENT OR SUBLEASE
9.01 LESSOR ASSIGNMENT. Lessor shall have the right to sell, transfer
or assign, in whole or in part, its rights and obligations under this Lease and
in the Building. Any such sale, transfer or assignment shall operate to release
Lessor from any and all liabilities under this Lease arising after the date of
such sale, assignment or transfer.
9.02 LESSEE ASSIGNMENT.
9.02.01 Lessee shall not assign this Lease, or allow it to be
assigned by operation of law or otherwise (including without limitation by
transfer of a majority interest of stock, merger, or dissolution, which transfer
of majority interest of stock, merger or dissolution shall be deemed an
assignment) or mortgage or pledge the same, or sublet the leased premises, in
whole or in part, without the prior written consent of Lessor. No assignee or
sublessee of the leased premises or any portion thereof may assign or sublet the
leased premises or any portion thereof. Notwithstanding anything contained in
this Lease to the contrary, (i) Landlord shall not unreasonably withhold its
consent to any assignment of this Lease or subletting of the entire leased
premises, and (ii) Tenant may assign this Lease or sublet the leased premises,
without Landlord's prior written consent, when such assignment or subletting is
to a parent, subsidiary or other affiliate, or is in connection with a merger or
consolidation or the sale of substantially all of the assets of Tenant to
another corporation. In no event shall any assignment of this Lease or sublease
of all or any portion of the leased premises ever release Lessee or any
guarantor of this Lease from any obligation or liability hereunder.
9.02.02 Notwithstanding anything herein to the contrary, the
transfer, assignment or hypothecation of any stock or interest of Tenant shall
not be deemed an assignment or transfer of this Lease or Tenant's interest in
and to the leased premises within the meaning and provisions of this Section
9.02 so long as the common stock of either Tenant or Tenant's parent is traded
in the over-the-counter market or is listed on a national stock exchange.
9.03 CONDITIONS OF ASSIGNMENT.
9.03.01 If Lessee desires to assign or sublet all or any part
of the leased premises and ▇▇▇▇▇▇'s consent to such assignment shall be
required pursuant to Section 9.02, Lessee shall so notify Lessor at least 15
days in advance of the date on which Lessee desires to make such assignment
or sublease. Such written notice shall be accompanied by a copy of the
proposed assignment or sublease and such information as ▇▇▇▇▇▇ might request
concerning the proposed sublessee or assignee to allow Lessor to make
informed judgments as to the financial condition, reputation, operations and
general desirability of the proposed sublessee or assignee. Following receipt
of such notice and additional information as Lessor may request, Lessor at
its option may:
(A) consent to the proposed assignment or sublease; or
(B) refuse, after a review of the appropriate documentation, to
consent to the proposed assignment or sublease.
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9.03.02 Lessor shall be deemed to have consented to the
proposed assignment or sublease unless ▇▇▇▇▇▇ gives ▇▇▇▇▇▇ written notice
providing otherwise within fifteen (15) days after ▇▇▇▇▇▇'s receipt of ▇▇▇▇▇▇'s
notice of the proposed assignment or sublease.
9.03.03 Upon the occurrence of an event of default, if all or
any part of the leased premises are then assigned or sublet, Lessor, in addition
to any other remedies provided by this Lease or provided by law, may, at its
option, collect directly from the assignee or sublessee all rents becoming due
to Lessee by reason of the assignment or sublease. Any collection directly by
Lessor from the assignee or sublessee shall not be construed to constitute a
novation or a release of Lessee or any guarantor from the further performance of
its obligations under this Lease.
9.04 RIGHTS OF MORTGAGEE. Lessee accepts this Lease subject and
subordinate to any recorded mortgage lien presently existing or hereafter
created upon the Building or project and to all existing recorded restrictions,
covenants, easements and agreements with respect to the Building or project;
provided that, as a condition to Lessee's obligations under this Lease, Lessee
and the holder of any mortgage lien which shall be placed on the leased premises
prior to Substantial Completion of the Improvements shall enter into a
subordination, non-disturbance and attornment agreement on terms mutually
satisfactory within 15 days of the date of the execution of the mortgage by
Lessor, which agreement shall provide, INTER ALIA, that the mortgagee shall not
disturb the tenancy of Lessee, so long as Lessee is not in default of its
obligations under this Lease beyond any applicable notice and cure periods, and
that any undisbursed construction loan proceeds shall be made available for the
purposes set forth in Section 6.09 of this Lease (subject to Lessor's reasonable
requirements). Lessor shall use its best efforts to cause any such mortgagee to
agree that insurance proceeds and condemnation awards shall be used for the
repair and restoration of the leased premises when so provided in Sections 7.02
and 8.02 of this Lease. Lessee agrees to subordinate ▇▇▇▇▇▇'s interest under
this Lease to any mortgage lien placed on the leased premises after Substantial
Completion of the Improvements, provided that as a condition to such
subordination Lessee and such mortgagee shall enter into a mutually satisfactory
non-disturbance, subordination and attornment agreement which shall include a
covenant by the mortgagee not to disturb the tenancy of Lessee, so long as
Lessee is not in default of its obligations under this Lease beyond any
applicable notice and cure periods. Lessor shall use its best efforts to cause
any such mortgagee to agree that insurance proceeds and condemnation awards
shall be used for the repair and restoration of the leased premises when so
provided in Sections 7.02 and 8.02 of this Lease. If the interests of Lessor
under this Lease shall be transferred by reason of foreclosure or other
proceedings for enforcement of any first mortgage on the leased premises, Lessee
shall be bound to the transferee (sometimes called the "Purchaser"), under the
terms, covenants and conditions of this Lease for the balance of the term
remaining, including any extensions or renewals, with the same force and effect
as if the Purchaser were Lessor under this Lease, and ▇▇▇▇▇▇ agrees to attorn to
the Purchaser, including the first mortgagee under any such mortgage if it be
the Purchaser, as its Lessor.
9.05 ESTOPPEL CERTIFICATES. ▇▇▇▇▇▇ agrees to furnish, from time to
time but in no more frequent intervals than twice in any 12 month period, within
ten (10) days after receipt of a request from Lessor or Lessor's mortgagee, a
statement certifying, if accurate, the following: Lessee is in possession of the
leased premises; the leased premises are acceptable; the Lease is in full force
and effect; the Lease is unmodified; ▇▇▇▇▇▇ claims no present charge, lien, or
claim of offset against rent; the rent is paid for the current month, but is not
prepaid for more than one month and will not be prepaid for more than one month
in advance; there is no existing default by reason of some act or omission by
▇▇▇▇▇▇; and such other matters as may be reasonably required by Lessor or
Lessor's mortgagee.
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ARTICLE 10.00 DEFAULT AND REMEDIES
10.01 DEFAULT BY ▇▇▇▇▇▇. The following shall be deemed to be events of
default by Lessee under this Lease:
(A) Lessee shall fail to pay any installment of rent or any
other payment required pursuant to this Lease within three
days after receipt of written notice of the nonpayment
thereof from Lessor;
(B) Lessee shall fail to comply with any term, provision or
covenant of this Lease, other than the payment of rent, and
the failure is not cured within 30 days after written
notice to Lessee, or within a reasonable time thereafter if
the default is of such a nature that it cannot be cured
within such 30-day period, and Lessee does not thereafter
complete the same with reasonable diligence;
(C) Lessee shall file a petition or be adjudged bankrupt or
insolvent under any applicable federal or state bankruptcy
or insolvency law or admit that it cannot meet its
financial obligations as they become due; or a receiver or
trustee shall be appointed for all or substantially all of
the assets of the Lessee; or Lessee shall make a transfer
in fraud of creditors or shall make an assignment for the
benefit of creditors; or
(D) Lessee shall do or permit to be done any act which results
in a lien being filed against the leased premises or the
Building and/or project of which the leased premises are a
part and Lessee shall fail to cause such lien to be bonded
off or released of record within 30 days after receipt of
notice from Lessor of the filing of the claim of such lien.
10.02 REMEDIES FOR ▇▇▇▇▇▇'S DEFAULT. Upon the occurrence of any event of
default set forth in this Lease, Lessor shall have the option to pursue any one
or more of the remedies set forth herein without any notice or demand.
(A) Lessor may enter upon and take possession of the leased
premises by process of law and lock out, expel or remove
▇▇▇▇▇▇ and any other person who may be occupying all or any
part of the leased premises without being liable for any
claim for damages, and relet the leased premises on behalf
of ▇▇▇▇▇▇ and receive the rent directly by reason of the
reletting. Lessee agrees to pay Lessor on demand any
deficiency that may arise by reason of any reletting of the
leased premises; further, ▇▇▇▇▇▇ agrees to reimburse Lessor
for any expenditures made by it in order to relet the
leased premises, including, but not limited to, reasonable
and necessary remodeling and repair costs; provided that if
the term of the new lease upon reletting shall extend
beyond the scheduled expiration date of this Lease,
▇▇▇▇▇▇'s obligation to reimburse Lessor for remodeling
costs shall be prorated and equal to the product of such
reasonable and necessary remodeling costs multiplied by a
fraction, the numerator of which is the unexpired term of
this Lease as of the time of an event of default by Lessee
and the denominator of which is the term of the new lease
entered into by Lessor and the new tenant, without giving
effect to any unexercised options to extend such new lease.
(B) Lessor may enter upon the leased premises without being
liable for any claim for damages, and do whatever Lessee is
obligated to do under the terms of this Lease. ▇▇▇▇▇▇
agrees to reimburse Lessor on
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demand for any expenses which Lessor may incur in
effecting compliance with ▇▇▇▇▇▇'s obligations under this
Lease; further, ▇▇▇▇▇▇ agrees that Lessor shall not be
liable for any damages resulting to Lessee from effecting
compliance with ▇▇▇▇▇▇'s obligations under this Lease
unless caused by the negligence or reckless conduct of
Lessor.
(C) Lessor may terminate this Lease, in which event ▇▇▇▇▇▇
shall immediately surrender the leased premises to Lessor,
and if ▇▇▇▇▇▇ fails to surrender the leased premises,
Lessor may, without prejudice to any other remedy which it
may have for possession or arrearages in rent, enter upon
and take possession of the leased premises by process of
law, and lock out, expel or remove Lessee and any other
person who may be occupying all or any part of the leased
premises without being liable for any claim for damages.
▇▇▇▇▇▇ agrees to pay on demand the amount of all loss and
damage which Lessor may suffer by reason of the termination
of this Lease under this section, whether through inability
to relet the leased premises on satisfactory terms or
otherwise.
Notwithstanding any other remedy set forth in this Lease, in the event
Lessor has made rent concessions of any type or character, or waived any fixed
minimum rent, and Lessee fails to take possession of the leased premises on the
commencement or completion date or otherwise defaults at any time during the
term of this Lease, the rent concessions, including any waived fixed minimum
rent, shall be cancel led and the amount of the fixed minimum rent and other
rent that would be due if there were no rent concessions shall be due and
payable immediately as if no rent concessions or waiver of any fixed minimum
rent had ever been granted. A rent concession or waiver of the fixed minimum
rent shall not relieve Lessee of any obligation to pay any other charge due and
payable under this Lease, including without limitation any sum due under Section
2.02 hereof. Notwithstanding anything contained in this Lease to the contrary,
this Lease may be terminated by Lessor only by mailing or delivering written
notice of such termination to Lessee, and no other act or omission of Lessor
shall be construed as a termination of this Lease.
ARTICLE 11.00 RELOCATION
11.01 RELOCATION. [Intentionally omitted.]
ARTICLE 12.00 DEFINITIONS
12.01 ABANDON. [Intentionally omitted.]
12.02 ACT OF GOD OR FORCE MAJEURE. An "act of God" or "force majeure"
is defined for purposes of this Lease as strikes, lockouts, sit-downs, material
or labor restrictions by any governmental authority, unusual transportation
delays, riots, floods, washouts, explosions earthquakes, fire, storms, weather
(including wet grounds or inclement weather which prevents construction), acts
of the public enemy, wars, insurrections and any other cause not reasonably
within the control of Lessor or Lessee, as applicable, and which by the exercise
of due diligence Lessor or Lessee is unable, wholly or in part, to prevent or
overcome.
12.03 BUILDING OR PROJECT. "Building" or "Project" as used in this
Lease means the Building and/or project described in Section 1.02, including the
leased premises and the land upon which the Building or project is situated.
12.04 COMMENCEMENT DATE. [Intentionally omitted.]
12.05 COMPLETION DATE. "Completion Date" shall be the date on which
Substantial Completion (as defined in Section 6.04) of the Improvements erected
and to be erected upon the leased premises
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shall have been accomplished in accordance with the plans and specifications
described in Article 6.00. Subject to the provisions of Section 6.09, the
Completion Date shall constitute the commencement of the term of this Lease for
all purposes, whether or not Lessee has actually taken possession. Lessor shall
use its best efforts to establish the completion date as the date set forth in
Section 1.03. Upon Substantial Completion, Lessee shall deliver to Lessor a
letter accepting the leased premises as suitable for the purposes for which they
are let, subject to punchlist items, and, unless said date is after the date
Lessee takes possession of the leased premises or unless said date is objected
to by Lessor, the date of such letter shall constitute the completion date.
Whether or not ▇▇▇▇▇▇ has executed such a letter of acceptance, taking
possession of the leased premises by ▇▇▇▇▇▇ shall be deemed to establish
conclusively that the improvements have been completed in accordance with the
plans and specifications, are suitable for the purposes for which the leased
premises are let, and that the leased premises are in good and satisfactory
condition as of the date possession was so taken by ▇▇▇▇▇▇, except for latent
defects and punchlist items, if any. Punchlist items shall be completed within
30 days after preparation of the punchlist or within a reasonable time
thereafter if such items are of such nature that they cannot be completed within
such 30-day period, and Lessor shall complete the same with reasonable
diligence. If Lessor shall fail to complete the punchlist items within the time
period set forth in the preceding sentence, Lessee shall have the same rights
with respect to such items as provided to Lessee in Section 5.01 with respect to
Lessor's failure to make timely repairs that are its responsibility.
ARTICLE 13.00 MISCELLANEOUS
13.01 WAIVER. Failure of Lessor or Lessee to declare an event of
default immediately upon its occurrence, or delay in taking any action in
connection with an event of default, shall not constitute a waiver of the
default, but Lessor or Lessee shall have the right to declare the default at any
time and take such action as is lawful or authorized under this Lease. Pursuit
of any one or more of the remedies set forth in Article 10.00 above shall not
preclude pursuit of any one or more of the other remedies provided elsewhere in
this Lease or provided by law, nor shall pursuit of any remedy constitute
forfeiture or waiver of any rent or damages accruing to Lessor or Lessee by
reason of the violation of any of the terms, provisions or covenants of this
Lease. Failure by Lessor or Lessee to enforce one or more of the remedies
provided upon an event of default shall not be deemed or construed to constitute
a waiver or the default or of any other violation or breach of the terms,
provisions and covenants contained in this Lease.
13.02 ACT OF GOD. Neither party shall be required to perform any
covenant or obligation in this Lease, or be liable in damages or for the Penalty
provided in Section 6.09.02, so long as the performance or non-performance of
the covenant or obligation is delayed, caused or prevented by an act of God,
force majeure or by the other party; provided that the Takeover Notice Date as
provided in Section 6.09.02 of this Lease shall not be subject to extension due
to an act of God or force majeure; further provided, that the foregoing
provisions shall not excuse either party from the prompt payment of any charges
or expenses due hereunder, including, without limitation, ▇▇▇▇▇▇'s obligation to
pay fixed minimum rent and additional rent. By way of example but not
limitation, it is hereby acknowledged and agreed that any delay in Lessor's
substantially completing the improvements caused by the acts or omissions of
Lessee, including, but not limited to, ▇▇▇▇▇▇'s failure to timely install (or
furnish for installation by Lessor, as may be required in this Lease) its
fixtures and furniture, phone switch equipment, kitchen equipment and/or
carpeting, shall be deemed a delay caused by the other party for which the
Outside Date shall be extended accordingly.
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13.03 ATTORNEYS' FEES. If during the term of this Lease, Lessor or
Lessee institutes any action or proceeding against the other relating to the
provisions of this Lease or any default hereunder, the unsuccessful party in
such action or proceeding agrees to reimburse the successful party for the
reasonable expenses of such action, including reasonable attorneys' fees and
disbursements incurred by the successful party, regardless of whether the action
or proceeding is prosecuted to judgment. The term "attorneys' fees" wherever
used in this Lease, shall mean only the reasonable charges for services actually
performed and rendered, of independent, outside legal counsel who are not the
employees of the party in question.
13.04 SUCCESSORS. This Lease shall be binding upon and inure to the
benefit of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ and their respective heirs, personal
representatives, successors and assigns. It is hereby covenanted and agreed
that should ▇▇▇▇▇▇'s interest in the leased premises cease to exist for any
reason during the term of this Lease, then notwithstanding the happening of such
event this Lease nevertheless shall remain unimpaired and in full force and
effect, and ▇▇▇▇▇▇ hereunder agrees to attorn to the then owner of the leased
premises.
13.05 ALLOCATION OF RENT. Lessor and ▇▇▇▇▇▇ agree that no portion of
the fixed minimum rent paid by ▇▇▇▇▇▇ after the expiration of any period during
which such rent was abated shall be allocated by Lessor or Lessee to such
abatement period, nor is such rent intended by the parties to be allocable to
any abatement period.
13.06 BANKRUPTCY OR INSOLVENCY. It is understood and agreed that the
following shall apply in the event of the bankruptcy or insolvency of ▇▇▇▇▇▇:
(i) If a petition is filed by, or an order for relief is
entered against Lessee under Chapter 7 of the United States
Bankruptcy Code (the "Bankruptcy Code") and the trustee for
Lessee elects to assume this Lease for the purpose of
assigning it, such election or assignment, or both, may be
made only if all of the terms and conditions of
subparagraphs (ii) and (iv) below are satisfied. To be
effective, an election to assume this Lease must be in
writing and addressed to ▇▇▇▇▇▇, and, in ▇▇▇▇▇▇'s business
judgment, all of the conditions hereinafter stated, which
Lessor and ▇▇▇▇▇▇ acknowledge to be commercially
reasonable, must have been satisfied. If the trustee fails
so to elect to assume this Lease within sixty (60) days
after his appointment, this Lease shall be deemed to have
been rejected, and ▇▇▇▇▇▇ shall then immediately be
entitled to possession of the leased premises without
further obligation to Lessee pr the trustee, and this Lease
shall be terminated. Lessor's right to be compensated for
damages in the bankruptcy proceeding, however, shall
survive such termination.
(ii) If Lessee files a petition for reorganization under
Chapters 11 or 13 of the Bankruptcy Code, or if a
proceeding filed by or against Lessee under any other
chapter of the Bankruptcy Code is converted to a Chapter
11 or 13 proceeding, and ▇▇▇▇▇▇'s trustee or Lessee as
debtor-in-possession fails to assume this Lease within
sixty (60) days from the date of the filing of such
petition or conversion, then the trustee or the debtor-in-
possession shall be deemed to have rejected this Lease.
To be effective, any election to assume this Lease must be
in writing addressed to ▇▇▇▇▇▇ and, in ▇▇▇▇▇▇'s business
judgment, all of the following conditions, which Lessor and
▇▇▇▇▇▇ acknowledge to be commercially reasonable, must have
been satisfied:
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(a) The trustee or the debtor-in-possession has cured
all defaults hereunder or, with respect to defaults
that the trustee or debtor-in-possession has not
cured, has provided to Lessor adequate assurance, as
defined in this Subparagraph (ii), that:
(1) The trustee or debtor-in-possession will cure
all monetary defaults under this Lease within
ten (10) days from the date of assumption;
and
(2) The trustee or debtor-in-possession will cure
all non-monetary defaults under this Lease
within thirty (30) days from the date of
assumption.
(b) The trustee or the debtor-in-possession has
compensated Lessor, or has provided Lessor with
adequate assurance, as hereinafter defined, that
within ten (10) days from the date of assumption,
Lessor will be compensated for any pecuniary loss it
has incurred arising from the default of Lessee, the
trustee, or the debtor-in-possession, as recited in
the Lessor's written statement of pecuniary loss
sent to the trustee or debtor-in-possession.
(c) The trustee or the debtor-in-possession has provided
Lessor with adequate assurance of the future
performance of each of ▇▇▇▇▇▇'s obligations under
this Lease; provided, however, that:
(1) From and after the data of assumption of this
Lease, the trustee or the debtor-in-
possession shall pay the fixed minimum rent
payable under this Lease in advance in equal
monthly installments on each date that such
fixed minimum rent is payable and shall pay
all additional rent payable hereunder when
due;
(2) The trustee or debtor-in-possession shall
also deposit with Lessor, as security for the
timely payment of rent, an amount equal to
three months fixed minimum rent and other
monetary charges accruing under this Lease;
(3) If not otherwise required by the terms of
this Lease, the trustees or the debtor-in-
possession shall pay in advance, on each day
that any installment of fixed minimum rent is
payable, one-twelfth of Lessee's pro rata
share of operating expenses and other
obligations of Lessee under this Lease; and
(4) The obligations imposed upon the trustee or
the debtor-in-possession will continue for
Lessee after the completion of bankruptcy
proceedings.
(d) For purposes of this subparagraph (ii), "adequate
assurance" means that:
(1) Lessor determines that the trustee or the
debtor-in-possession has, and will continue
to have, sufficient unencumbered assets,
after payment of all secured obligations and
-22-
administrative expenses, to assure ▇▇▇▇▇▇
that the trustee or debtor-in-possession
will have sufficient funds timely to fulfill
Lessee's obligations under this Lease and to
keep the leased premises properly staffed
with sufficient employees to conduct a fully
operational, actively promoted business in
the leased premises; and
(2) An order shall have been entered segregating
sufficient cash payable to Lessee and/or a
valid and perfected first lien and security
interest shall have been granted in property
of Lessee, trustee, or debtor-in-possession
which is acceptable in value and kind to
Lessor, to secure for the benefit of the
Lessor the obligation of the trustee or
debtor-in-possession to cure all monetary and
non-monetary defaults under this Lease within
the time periods set forth above.
(iii) In the event this Lease is assumed by a trustee appointed
for Lessee or by Lessee as debtor-in-possession under the
provisions of subparagraph (ii) above and, thereafter,
Lessee is either adjudicated a bankrupt or files a
subsequent petition for arrangements under Chapter 11 of
the Bankruptcy Code, then Lessor may, at its option,
terminate this Lease and all the Lessee's rights under it,
by giving written notice of Lessor's election so to
terminate.
(iv) If the trustee or the debtor-in-possession has assumed this
Lease, pursuant to subparagraph (i) or (ii) above, the
trustee or debtor-in-possession, as the case may be, may
assign ▇▇▇▇▇▇'s interest under this Lease or the estate
created by that interest to another person only if the
intended assignee has provided adequate assurance of future
performance, as defined in this subparagraph (iv), of all
of the terms, covenants, and conditions of this Lease.
(a) For the purposes of this subparagraph (iv),
"adequate assurance of future performance" means
that each of the following conditions has been
satisfied:
(1) The assignee has submitted a current
financial statement, audited by a certified
public accountant, which shows a net worth of
working capital in amounts determined by
Lessor to be sufficient to assure the future
performance by the assignee of the Lessee's
obligations under the Lease;
(2) If requested by ▇▇▇▇▇▇, the assignee has
obtained guarantees of the assignee's
obligations hereunder, in form and substance
satisfactory to Lessor, from one or more
persons who satisfy Lessor's standards of
creditworthiness; and
(3) Lessor has obtained all consents or waivers
from third parties which may be required
under any lease, mortgage, financing
arrangement, or other agreement by which
Lessor is bound, to enable Lessor to permit
such assignment.
(v) When, pursuant to the Bankruptcy Code, the trustee or the
debtor-in-possession is obligated to pay reasonable use and
occupancy charges for the use of
-23-
all or part of the leased premises, it is agreed that
such charges will not be less than the fixed minimum rent
as defined in this Lease, plus additional rent and other
monetary obligations of Lessee included herein.
(vi) Neither Lessee's interest in this Lease nor any estate of
Lessee created in this Lease shall pass to any trustee,
receiver, assignee for the benefit of creditors, or any
other person or entity, or otherwise by operation of law
under the laws of any state having jurisdiction of the
person or property of Lessee, unless Lessor consents in
writing to such transfer. Lessor's acceptance of rent or
any other payments from any trustee, receiver, assignee,
person, or other entity will not be deemed to have waived,
or waive, either the requirement of Lessor's consent or
▇▇▇▇▇▇'s right to terminate this Lease as the result of any
transfer of ▇▇▇▇▇▇'s interest under this Lease without such
consent.
13.07 CAPTIONS. The captions appearing in this Lease are inserted only
as a matter of convenience and in no way define, limit, construe or describe the
scope or intent of any section.
13.08 NOTICE. All rent and other payments required to be made by Lessee
shall be payable to Lessor at the address set forth in Section 1.05 or at any
address within the United States as Lessor may specify to Lessee from time to
time by written notice given in accordance with this Section 13.08. All
payments required to be made by Lessor to Lessee shall be payable to Lessee at
the address set forth in Section 1.05, or at any other address within the United
States as Lessee may specify to Lessor from time to time by written notice given
in accordance with this Section 13.08. Any notice or document required or
permitted to be delivered by the terms of this Lease shall be deemed to be
delivered (whether or not actually received) when deposited in the United States
mail, postage prepaid, certified mail, return receipt requested, addressed to
the parties at the respective, addresses set forth in Section 1.05 or at any
other address within the United States as one party has specified to the other
from time to time by written notice given in accordance with this Section 13.08.
13.09 SUBMISSION OF LEASE. Submission of this Lease to Lessee for
signature does not constitute a reservation of space or an option to lease.
This Lease is not effective until execution by and delivery to both Lessor and
▇▇▇▇▇▇.
13.10 CORPORATE AUTHORITY. Lessee represents that it is not a "tax-exempt
entity" as such term is defined in Section 168(h)(2) of the Internal Revenue
Code of 1986. Each of the persons executing this Lease on behalf of Lessor and
▇▇▇▇▇▇ does hereby personally represent and warrant that Lessor or Lessee, as
applicable, is a duly authorized and existing corporation, that Lessor or
Lessee, as applicable, is qualified to do business in the state in which the
leased premises are located, that the corporation has full right and authority
to enter into this Lease, and that each person signing on behalf of the
corporation is authorized to do so. Lessee further represents and warrants to
Lessor that any and all approvals from any federal, state or local governmental
or quasi-governmental agency or instrumentality (including by way of example but
not limitation, the Comptroller of the Currency) necessary for Lessee to enter
into this Lease have been received by ▇▇▇▇▇▇.
13.11 SEVERABILITY. If any provision of this Lease or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Lease and the application of such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
-24-
13.12 LESSOR'S LIABILITY. If Lessor shall be in default under this
Lease and, if as a consequence of such default, Lessee shall recover a money
judgment against Lessor, such judgment shall be satisfied only out of the right,
title and interest of Lessor in the Building as the same may then be encumbered
and identifiable rents, profits and proceeds therefrom and neither Lessor nor
any person or entity comprising Lessor shall be liable for any deficiency. In
no event shall Lessee have the right to levy execution against any property of
Lessor nor any property or entity comprising Lessor other than its interest in
the Building as herein expressly provided.
13.13 BROKER INDEMNIFICATION. ▇▇▇▇▇▇ agrees to indemnify and hold
harmless ▇▇▇▇▇▇ from and against any liability or claim, whether meritorious or
not, arising with respect to any broker whose claim arises by, through or on
behalf of ▇▇▇▇▇▇. ▇▇▇▇▇▇ agrees to indemnify and hold harmless Lessor from and
against any liability or claim, whether meritorious or not, arising with respect
to any broker whose claim arises by, through or on behalf of ▇▇▇▇▇▇. Lessor
shall pay a broker's commission to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Real Estate Broker, in
accordance with the commission agreement between ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
13.14 CONSENT. Wherever provision is made in this Lease or the attached
Exhibits for the approval of a party hereto, such approval shall not be
unreasonably withheld, delayed or conditioned.
13.15. HAZARDOUS MATERIALS.
13.15.01 For purposes of this Lease hazardous materials
("Hazardous Materials") shall include, but shall not be limited to, any
substances, materials or wastes that are regulated by any local governmental
authority, the State of Ohio, or the United States of America because of toxic,
flammable, explosive, corrosive, reactive, radioactive or other properties that
may be hazardous to human health or the environment. Hazardous Materials also
include, without limitation, any materials or substances that are listed in the
United States Department of Transportation Hazardous Materials Table (49 CFR
172.01) as amended from time to time. Subject to the fourth rule and regulation
set forth in the attachment to this Lease, ▇▇▇▇▇▇ agrees that it will not use,
handle, generate, treat, store or dispose of, or permit the use, handling,
generation, treatment, storage or disposal of any Hazardous Materials in, on,
under, around or above the leased premises now or at any future time and will
indemnify, defend and save Lessor harmless from any and all actions,
proceedings, claims and losses of any kind, including but not limited to those
arising from injury to any person, including death, damage to or loss of use or
value of real or personal property, and costs of investigation and cleanup or
other environmental remedial work, which may arise in connection with Hazardous
Materials introduced to the leased premises by Lessee or any of its agents,
contractors or employees.
If at any time during the term of this Lease it is determined that
there are any Hazardous Materials located in, on, under, around, or above the
leased premises which are introduced to the leased premises by Lessee or any of
its agents, contractors, or employees, that are subject to any federal, state or
local environmental law, statute, ordinance or regulation, court or
administrative order or decree, or private agreement ("Environmental
Requirements"), including Environmental Requirements requiring special handling
of Hazardous Materials in their use, handling, collection, storage, treatment or
disposal, Lessee shall commence with diligence within thirty (30) days after
receipt of notice of the presence of the Hazardous Materials and shall continue
to diligently take all appropriate action, at ▇▇▇▇▇▇'s sole expense, to comply
with all such Environmental Requirements. Failure of Lessee to comply with all
Environmental Requirements shall constitute an event of default under this
Lease.
13.15.02 Lessor represents and warrants to Lessee that Lessor
knows of no Hazardous Materials that have been used, handled, generated,
treated, stored or disposed of in, on, under, around or
-25-
above the leased premises. Lessor agrees that it will not use, handle, generate,
treat, store or dispose of, or permit the use, handling, generation, treatment,
storage or disposal of any Hazardous Materials in, on, under, around or above
the leased premises now or at any future time and will indemnify, defend and
save Lessee harmless from any and all actions, proceedings, claims and losses of
any kind, including but not limited to those arising from injury to any person,
including death, damage to or loss of use or value of personal property, and
costs of investigation and cleanup or other environmental remedial work, which
may arise in connection with Hazardous Materials introduced to the leased
premises by Lessor or any of its agents, contractors or employees.
If at any time during the term of this Lease it is determined that
there are any Hazardous Materials located in, on, under, around, or above the
leased premises which are introduced to the leased premises by Lessor or any of
its agents, contractors, or employees, that are subject to any federal, state or
local environmental law, statute, ordinance or regulation, court or
administrative order or decree, or private agreement ("Environmental
Requirements"), including Environmental Requirements requiring special handling
of Hazardous Materials in their use, handling, collection, storage, treatment or
disposal, Lessor shall commence with diligence within thirty (30) days after
receipt of notice of the presence of the Hazardous Materials and shall continue
to diligently take all appropriate action, at Lessor's sole expense, to comply
with all such Environmental Requirements.
If Hazardous Materials shall be found in, on, under or above the
leased premises and bringing the leased premises into compliance with all
applicable Environmental Requirements would cause the leased premises to be
rendered untenantable in whole or in part or would prevent Lessee from operating
its business in the leased premises in the normal course and such Hazardous
Materials shall not have been introduced to the leased premises by Lessee or any
of its agents, contractors or employees, and if such untenantability or
inability to operate in the normal course continues for more than 150 days
following the discovery of such Hazardous Materials, then until such
untenantability or inability has ended, Lessee (and Lessor, unless Lessor or any
of its agents, contractors or employees shall have introduced the Hazardous
Materials to the leased premises) shall have the right to terminate this Lease
by written notice to the other at any time after such 150 day period. During
any period when the leased premises is untenantable or Lessee is prevented from
operating its business therein in the normal course due to the presence of
Hazardous Materials and if Lessee has not breached its obligations under Section
13.15.01, fixed minimum rent and other charges payable hereunder shall be abated
in proportion to the floor area of the leased premises so affected.
ARTICLE 14.00 AMENDMENT AND LIMITATION OF WARRANTIES
14.01 ENTIRE AGREEMENT. IT IS EXPRESSLY AGREED BY ▇▇▇▇▇▇, AS A MATERIAL
CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH THE
SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF
THE PARTIES; THAT THERE ARE, AND WERE NO VERBAL REPRESENTATIONS, WARRANTIES AND
UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES PERTAINING TO THIS LEASE OR
TO THE EXPRESSLY MENTIONED WRITTEN EXTRINSIC DOCUMENTS NOT INCORPORATED IN
WRITING IN THIS LEASE.
14.02 AMENDMENT. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR
EXTENDED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY ▇▇▇▇▇▇ AND ▇▇▇▇▇▇.
14.03 LIMITATION OF WARRANTIES. ▇▇▇▇▇▇ AND ▇▇▇▇▇▇ EXPRESSLY AGREE THAT
THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE,
AND THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND ThOSE EXPRESSLY SET FORTH
IN THIS LEASE.
-26-
RULES AND REGULATIONS
1. ▇▇▇▇▇▇ agrees to furnish Lessee 2 keys without charge.
Additional keys will be furnished at a nominal charge. All keys to leased
premises shall be surrendered to Lessor upon termination of this Lease.
2. ▇▇▇▇▇▇'s contractors and installation technicians shall comply
with ▇▇▇▇▇▇'s rules and regulations pertaining to construction and
installation. This provision shall apply to all work performed on or about
the leased premises or project, including installation of telephones,
telegraph equipment, electrical devices and attachments and installations of
any nature affecting floors, walls, woodwork, trim, windows, ceilings and
equipment or any other physical portion of the leased premises or project.
3. Lessee shall not at any time occupy any part of the leased
premises or project as sleeping or lodging quarters.
4. Lessee shall not place, install or operate on the leased premises
or in any part of the Building any engine or place or use in or about the leased
premises or project any explosives, gasoline, kerosene, oil, acids, caustics, or
any flammable, explosive or hazardous material without the written consent of
Lessor; provided that Lessee shall be permitted to keep a generator on the
leased premises and fuel to operate the same for the purpose of temporary
generation of electricity during power failures, so long as the storage and use
of such generator and fuel shall be in compliance with all applicable laws,
codes and regulations. Lessee shall also be permitted to keep ordinary cleaning
materials, paints and solvents on the leased premises to the extent reasonably
required for Lessee to perform its maintenance obligations under this Lease.
5. Lessor will not be responsible for lost or stolen personal
property, equipment, money or jewelry from the leased premises or the project
regardless of whether such loss occurs when the area is locked against entry or
not.
6. No dogs, cats, fowl, or other animals shall be brought into or
kept in or about the leased premises or project.
7. Employees of Lessor shall not receive or carry messages for or to
any Lessee or other person or contract with or render free or paid services to
any Lessee or to any of Lessee's agents, employees or invitees.
8. None of the parking, plaza, recreation or lawn areas, entries,
passages, doors, elevators, hallways, stairways or atrium shall be blocked or
obstructed or any rubbish, litter, trash, or material of any nature placed,
emptied or thrown into these areas.
9. The water closets and other fixtures shall not be used for any
purpose other than those for which they were constructed, and any damage
resulting to them from misuse or by the defacing or injury of any part of the
Building shall be borne by the person who shall occasion it. No person shall
waste water by interfering with the faucets or otherwise.
10. [Intentionally Omitted.]
11. Nothing shall be thrown out of the windows or doors of the
Building or down the stairways or other passages.
12. [Intentionally Omitted.]
13. All responsibility for damage to vehicles or persons is assumed by
the owner of the vehicle or its driver.
14. [Intentionally Omitted.]
-28-
15. Lessor shall not be liable for any damages from the stoppage of
elevators for necessary or desirable repairs or improvements or delays of any
sort or duration in connection with the elevator service.
16. [Intentionally Omitted.]
17. [Intentionally Omitted.]
18. [Intentionally Omitted.]
19. [Intentionally Omitted.]
-29-
EXHIBIT "C"
UNITED CREDIT SERVICES
"AUDIT BID ITEMS"
AUDIT ITEMS
AUDIT BID ITEMS ESTIMATES
EARTHWORK
Includes clear and grub, mass excavation and fill, truck off excess top
soil and unacceptable fill, stripping and re-spreading of topsoil.
$108,180.00
SITE UTILITIES
Includes domestic and fire water service lines to the building, fire
protection line (and hydrants) to the building, sanitary sewer to the
building, storm sewers, root drain laterals to the building, and site gas
service to the building.
$ 84,515.00
LANDSCAPING $ 30,000.00
IRRIGATION $ 25,000.00
INSTALL TENANTS CARPET $ 29,190.00
FURNISH AND INSTALL VINYL WALL BASE $ 8,530.00
FURNISH AND INSTALL VCT $ 5,480.00
EXHIBIT "D"
ADDITIONAL ITEMS
Switch room (computer room) work, including mechanical, electrical, fire
suppression and protection, and flooring work, plus architectural and
construction fees for the same.
Painted sidewalk.
Security system.
The cost of all Additional Items provided by Lessor pursuant to this
Exhibit "D" shall be fully amortized over the initial ten (10) year term of the
Lease and paid for by Lessee by means of an increase in the fixed minimum rent
as set forth in Section 1.04 of the Lease. In the event Lessee elects to cancel
this Lease in accordance with Section 15.04 of the Lease Addendum, Lessee shall
pay to Lessor not later than the date the Final Payment is due (as defined in
Section 15.04 of the Lease), in addition to any other payments required to be
made to Lessor by Lessee pursuant to said Section 15.04, the unamortized amount
of such Additional Items as of the Final Payment date.
To the extent Additional Items are of a nature that they can be removed
from the leased premises, Lessee shall be entitled to remove the items listed
above at the end of the Lease term and retain possession thereof, provided (a)
such termination is not the result of ▇▇▇▇▇▇'s default hereunder; (b) Lessee
repairs any and all physical damage to the remaining Improvements caused by such
removal; and (c) if applicable, ▇▇▇▇▇▇ has paid the sums required by the
preceding paragraph.
-35-
EXHIBIT "E"
TO BE INSERTED.
-36-
ADDENDUM TO LEASE DATED JULY 2, 1990
BETWEEN CONTINENTAL ACQUISITIONS, INC. AND
WORLD FINANCIAL NETWORK NATIONAL BANK (U.S.)
SECTION 15.01 RENEWAL OPTION: Provided that at the end of the primary
term of this Lease Lessee is not in default of any of the terms, conditions or
covenants contained in this Lease beyond any applicable cure period, Lessee
(unless Lessee is an assignee or sublessee of the Lease to whom assignment or
subletting of the Lease required the prior consent of Lessor under Section 9.03)
is hereby granted an option to renew this Lease for two (2) additional terms of
five (5) years each on the same terms and conditions contained herein except:
a) the second renewal opt ion term will contain no further renewal
opt ions unless expressly granted by ▇▇▇▇▇▇ in writing;
b) the fixed minimum rent for the first renewal term shall be equal
to 110.3% of the fixed minimum rent payable during months 61 through 120
of this Lease, and the fixed minimum rent for the second renewal term
shall be equal to 109.8% of the fixed minimum rent payable during the
first renewal term;
c) rent payments for each renewal term will commence on the first day
of the renewed term; and
d) if ▇▇▇▇▇▇ desires to renew this ▇▇▇▇▇ ▇▇▇▇▇▇ will notify Lessor of
its intention to renew no later than six (6) months prior to the
expiration date of the original Lease term or six (6) months prior to the
end of the first renewal term.
SECTION 15.02. PROJECT SUMMARY: Attached hereto and made a part hereof
is Exhibit "B" which is a summary of Lessors work for the project.
SECTION 15.03. COMPLETION DATE: [Intentionally Omitted.]
-38-
SECTION 15.04. CANCELLATION OPTION: Lessor hereby grants to Lessee the
option to cancel this Lease effective at any time after the expiration of the
sixtieth (60th) month from the completion date of this Lease until the
expiration of the one hundred eleventh (111th) month from the completion date of
this Lease provided Lessee (i) gives Lessor at least twelve (12) months prior
written notice specifying therein the effective date of the cancellation (which
effective date shall in no event be prior to the sixtieth (60th) month of the
lease term) and (ii) on the effective date of the cancellation and on the same
day of each month thereafter for the next eight consecutive months pay to Lessor
an amount equal to the monthly fixed minimum rent payable by Lessee for the 61st
through 120th months of the Lease as provided in Section 1.04 of this Lease (the
Buyout Payments). Lessee shall also pay to Lessor a pro rata share of all real
estate taxes and insurance premiums payable by Lessor with respect to the leased
premises during the nine-month period after the effective date of the
cancellation of the Lease (the Cancellation Period') and Lessee shall reimburse
Lessor for all utility charges reasonably incurred by Lessor to maintain the
leased premises in good condition during the Cancellation Period. Lessee shall
reimburse Lessor for any taxes, insurance premiums or utility charges paid by
Lessor during the Cancellation Period upon the later of 15 days of a demand for
payment of the same by Lessor or the due date of the next Buyout Payment.
Lessee shall pay the reasonably estimated taxes, insurance premiums and utility
charges applicable to the balance of the Cancellation Period which have not been
previously paid by Lessee together with the last installment of the Buyout
Payments (the "Final Payment"). Lessor shall prepare and submit to Lessee its
reasonable estimate of the unpaid taxes, insurance premiums and utility charges
for the balance of the Cancellation Period to Lessee at least 10 days prior to
the due date of the Final Payment., Lessee shall also pay together with the
Final Payment the amounts required to be paid by Lessee pursuant to the
provisions of Exhibit "D".
-39-
SECTION 15.05. HALON LANGUAGE: Lessee acknowledges that during the term
of this Lease, its Halon installation may be legally banned or subject to
mandatory modification or conversion to some other fire protection system.
▇▇▇▇▇▇ agrees that it will not, on the basis of such legal ban or mandatory
modification or conversion, claim frustration of purpose, seek termination of
the Lease, or seek abatement of rent. In addition, ▇▇▇▇▇▇ acknowledges and
agrees that Lessee shall, at ▇▇▇▇▇▇'s sole cost and expense, (i) comply with any
applicable laws, ordinances, orders, rules and regulations affecting the Halon
installation including any which require the removal, modification or conversion
thereof, and (ii) remove such Halon installation at Lessor's request upon the
termination of this Lease.
-40-
FIRST AMENDMENT OF LEASE
THIS FIRST AMENDMENT OF LEASE (the "Amendment") is entered into by and
between CONTINENTAL ACQUISITIONS, INC., an Ohio corporation ("Lessor"), and
WORLD-FINANCIAL NETWORK NATIONAL BANK (U.S.) ("Lessee") as of the 11th day of
September, 1990.
WHEREAS, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ entered into an office lease as of July 2,
1990 providing for the construction and leasing of a 100,800 (approximate)
square foot building on ▇▇▇▇▇▇▇ Road in Westerville, Ohio (the "Lease"); and
WHEREAS, ▇▇▇▇▇▇ and Lessee desire to amend the Lease as
hereinafter set forth;
NOW THEREFORE, in consideration of the mutual covenants herein contained
and contained in the Lease, Lessor and Lessee, intending to be legally bound,
agree as follows:
Section 1. AMENDMENT. The second sentence of Section 6.04 of the Lease
is hereby amended in its entirety to read as follows:
Lessor shall use its best efforts to achieve Substantial Completion of
the Improvements on or before January 26, 1991.
Section 2. CONTINUED EFFECT. Except as amended hereby, the terms
of the Lease remain in full force and effect and are confirmed by the parties
hereto.
LESSOR LESSEE
CONTINENTAL ACQUISITIONS, INC. WORLD FINANCIAL NETWORK NATIONAL BANK (U.S.)
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------- ------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and CEO
----------------------------- ------------------------------------
(Type Name and Title) (Type Name and Title)
Witness: Witness:
--------------------- ----------------------
Witness: Witness:
--------------------- ----------------------
ACKNOWLEDGMENTS
STATE OF OHIO )
) SS:
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this, _______ day of
____________________, 1990, by _____________________ of Continental
Acquisitions, Inc., an Ohio corporation, on behalf of the corporation.
My commission expires:
----------------- -----------------------
Notary Public
STATE OF OHIO )
) SS SEAL
COUNTY OF _______________)
The foregoing instrument was acknowledged before me this _______ day of
__________________________________ , 1990, by
____________________________________________________________ as
___________________________________ of World Financial Network National Bank
(U.S.), a National Banking Association, on behalf of the association.
My commission expires:
---------- --------------------------------
Notary Public
SECOND AMENDMENT OF LEASE
THIS SECOND AMENDMENT OF LEASE is entered into by and between PARTNERS AT
BROOKSEDGE, an Ohio general partnership ("Lessor"), and WORLD FINANCIAL NETWORK
NATIONAL BANK (U.S.) ("Lessee") as of the 16th day of November, 1990.
WHEREAS, Continental Acquisitions, Inc. ("CAI"), ▇▇▇▇▇▇'s predecessor in
interest, and ▇▇▇▇▇▇ entered into an office lease as of July 2, 1990 providing
for the construction and leasing of a 100,800 (approximate) square foot building
on ▇▇▇▇▇▇▇ Road in Westerville, Ohio, which lease was amended by a first
amendment of lease between CAI and Lessee dated as of September 11, 1990
(collectively, the lease and the first amendment of lease are herein referred to
as the "Lease"); and
WHEREAS, ▇▇▇▇▇▇ and Lessee desire to amend the Lease as hereinafter set
forth;
NOW THEREFORE, in consideration of the mutual covenants herein contained
and contained in the Lease, Lessor and Lessee, intending to be legally bound,
agree as follows:
Section 1. AMENDMENTS.
1.1. SECTION 6.04. The second sentence of Section 6.04 of the
Lease is hereby amended in its entirety to read as follows:
Lessor shall use its best efforts to achieve Substantial Completion of
the Improvements on or before January 26, 1991.
1.2. SECTION 6.09.02. The third sentence from the end of
Section 6.09.02 is hereby amended in its entirety to read as follows:
If the construction draws which are made available to Lessee shall be
insufficient to pay Lessee's actual, reasonable costs of completion of
the Improvements, the excess of the costs over such loan draws (plus an
imputed interest factor on such unpaid excess costs at the rate of
interest Lessor is required to pay on its construction loan) shall be
recoverable by offsetting such amounts against Lessee's obligations to
pay fixed minimum rent and additional rent as provided herein until such
time as the amount offset by Lessee shall equal the amount of such excess
costs plus interest at the foregoing rate.
Section 2. LEGAL DESCRIPTION OF THE LEASED PREMISES. As contemplated in
Section 1.02 of the Lease, Lessor has caused a survey of the leased premises to
be prepared. The legal description prepared pursuant to such survey is attached
hereto as Exhibit A and such description shall be deemed to be substituted as
Exhibit A to the Lease.
Section 3. CONTINUED EFFECT. Except as amended hereby, the terms of the
Lease remain in full force and effect and are confirmed by the parties hereto.
IN THE PRESENCE OF: PARTNERS AT BROOKSEDGE, an Ohio
General Partnership
By: Continental Properties, an Ohio General
Partnership
By:
-------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Managing General Partner
-------------------------
-------------------------
By: Nationwide Property Management, Inc.,
an Ohio corporation, a Partner
------------------------- By:
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Vice President and General
Manager
-------------------------
WORLD FINANCIAL NETWORK NATIONAL BANK (U.S.)
------------------------- By:
--------------------------------------
Its: PRESIDENT & CHIEF EXECUTIVE
OFFICER
-------------------------
ACKNOWLEDGMENTS
STATE OF OHIO )
)SS:
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this 16th day of
November, 1990, by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as the managing general partner of
Continental Properties, an Ohio general partnership, a partner of Partners of
Brooksedge, an Ohio general partnership, on behalf of such partnerships.
-------------------------------
Notary Public
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ATTORNEY AT LAW
NOTARY PUBLIC STATE OF OHIO
MY COMMISSION HAS NO EXPIRATION DATE
SECTION 147.03 R. C.
STATE OF OHIO )
)SS:
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this 16th day of
November, 1990, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as vice president and general manager of
Nationwide Property Management, Inc., an Ohio corporation and a partner of
Partners of Brooksedge, an Ohio general partnership, on behalf of such
corporation and partnership.
-------------------------------------
Notary Public
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ATTORNEY AT LAW
NOTARY PUBLIC STATE OF OHIO
MY COMMISSION HAS NO EXPIRATION DATE
SECTION 147.03 R. C.
STATE OF OHIO )
)SS:
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this 15th day of
November, 1990, by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as president and CEO of World Financial
Network National Bank (U.S.), a National Banking Association, on behalf of the
association.
------------------------------------
Notary Public
▇▇▇▇▇▇▇ ▇▇▇▇▇
NOTARY PUBLIC, STATE OF OHIO
MY COMMISSION EXPIRES xxxxxxxxxxxx
-2-
JOINDER BY GUARANTOR
The undersigned, THE LIMITED, INC., Guarantor ("Guarantor") of the Lease
pursuant to the certain Guarantee dated July 2, 1990 (the "Guarantee") does by
its execution below expressly join the foregoing Subordination, Nondisturbance
and Attornment Agreement and acknowledge and agree as follows (with all defined
terms contained therein to have the same meanings herein):
1. Guarantor does hereby acknowledge, consent to and agree to be
bound by all of the matters set forth in the foregoing Agreement.
2. Guarantor does hereby agree that, from and after the date hereof,
Guarantor shall provide to Mortgagee in the manner and at the address provided
for in paragraph II of the foregoing Agreement any notice given or received by
Guarantor under the terms and conditions of or in connection with the Lease or
the Guarantee.
3. As of the date hereof, Guarantor hereby certifies as follows,
knowing that Mortgagee will rely upon the accuracy of the information contained
herein in making the Loan:
(a) The Lease, as described in the foregoing Agreement, is the Lease
to which the Guarantee is appended and applies;
(b) The Guarantee is presently in full force and effect, has not been
amended, supplemented, extended, renewed, terminated, changed or
assigned in any respect, and no waiver of any provision thereof is
presently in effect;
(c) Guarantor hereby acknowledges and consents to and agrees to be
bound by the Assignment pursuant to which Continental
Acquisitions, Inc., the original "Lessor" under the Lease,
assigned to Lessor all of its rights under the Lease, and further
hereby recognizes Lessor as the "Lessor" under the Lease;
(d) Guarantor has no knowledge of any charge, lien, claim or defense
arising in favor of ▇▇▇▇▇▇ or Guarantor under the Lease or the
Guarantee;
(e) To the best knowledge of Guarantor, there are no defaults by
Lessor or Lessee and no existing conditions or events which, with
the giving of notice or the passage of time or both, would
constitute or become defaults of Lessor or Lessee, that have
occurred and presently exist under the Lease; and
10
(f) There are no actions, whether voluntary or otherwise, pending
against Guarantor under the bankruptcy or insolvency laws of the
United States or any state thereof which would prevent Guarantor
from fulfilling its obligations under the Guarantee.
IN WITNESS WHEREOF, the undersigned Guarantor has caused this
instrument to be executed and delivered by its duly authorized representative
as of this 15th day of November, 1990.
Signed and acknowledged THE LIMITED, INC.
in the presence of:
By:
---------------------------------- ------------------------------
Its: EXECUTIVE VICE PRESIDENT, CHIEF
FINANCIAL OFFICER
----------------------------------
STATE OF OHIO )
) SS:
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this 15th day of
November, 1990, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the EXECUTIVE V.P. AND C.F.O. of THE
LIMITED, INC., an Ohio corporation, on behalf of said corporation.
------------------------------------
Notary Public
▇▇▇▇▇▇▇ ▇▇▇▇▇
NOTARY PUBLIC, STATE OF OHIO
MY COMMISSION EXPIRES xxxxxxxxxxxx
This Instrument Prepared By:
VORYS, ▇▇▇▇▇, ▇▇▇▇▇▇▇ AND ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
P. O. Box 1008
Columbus, Ohio 43215
11
EXHIBIT A
CITY OF WESTERVILLE -- 9.894 ACRE TRACT
Being situated in Quarter Township (2), Township (2) North, Range 17 West of the
United States Military Lands in the City of Westerville, County of Franklin,
State of Ohio and being a part of that land owned by the City of Westerville of
record in Deed Volume 3031 Page 628 and Deed Volume 2509 Page 698 in the
Franklin County Recorder's Office and being more particularly described as
follows:
Beginning at an iron pin in the north right-of-way line of ▇▇▇▇▇▇▇ Road being
North 85deg. 38" 23" West of distance of 70.01 feet from the southwest corner of
the Vinda Ltd. tract of record in O.R. 10634 P. J-12;
thence from the place of beginning North 85deg. 38" 23" West along the north
right-of-way line of ▇▇▇▇▇▇▇ Road a distance of 612.22 feet to a point
referenced by an iron pin North 85deg. 38" 23" West, 20.00 feet;
thence North 37deg. 20" 35" West a distance of 26.61 feet to point referenced
by an iron pin South 10deg. 57" 14" West, 20.00 feet;
thence North 10deg. 57" 14" East a distance of 657.62 feet to an iron pin;
thence North 76deg. 02" 02" East a distance of 321.86 feet to an iron pin;
thence South 22deg. 25" 49" East along a westerly boundary of Foxtrail
Condominium Phase 2 (C.P.B. 35 P. 17) and Vinda Ltd. (O.R. 6834 P. D-17) a
distance of 172.06 feet to an iron pin;
thence South 85deg. 16" 13" East along the southerly boundary of said Vinda
Ltd. a distance of 241.16 feet to an iron pin;
thence South 4deg. 20" 38" West along the westerly boundary of Vinda Ltd. (O.R.
10634 P. J-12) a distance of 225.19 feet to a point in the north right-of-way
line of Wetherby Lane;
thence North 85deg. 39" 22" West a distance of 50.00 feet to a point;
thence South 4deg. 20" 38" West along the west right-of-way line of Crossbrook
Boulevard a distance of 373.98 feet to a point;
12
thence along the arc of a curve to the right having a delta angle of 90deg.
00" 59",
a radius of 20.00 feet and whose chord bears South 49 21' 04" West a chord
distance of 28.29 feet to the place of beginning, containing 9.894 acres, more
or less, of which 0.863 acres are out of the tract with parcel number 3030 and
9.031 acres are out of the tract with parcel number 1436.
The above description was prepared by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Professional
Surveyor, No. 5666, in June 1990.
13
July 2, 1990
▇▇. ▇▇▇▇▇ ▇▇▇▇
Continental Acquisitions, Inc.
Continental Real Estate Companies
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Lease at ▇▇▇▇▇▇▇ Road, Westerville, Ohio with World Financial
Network National Bank ("Lessee")
Dear ▇▇. ▇▇▇▇:
The purpose of this letter is to confirm that The Limited, Inc. is the
sole shareholder of Lessee.
Very truly yours
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
Chief Financial Officer
GUARANTEE
For and as a material inducement to CONTINENTAL ACQUISITIONS, INC.
(Lessor) to enter into the foregoing Lease with World Financial Network National
Dank (U.S.) (Lessee) for the leased premises, as defined in the Lease Agreement
and for good and valuable consideration, the undersigned, intending to be
legally bound hereby, does hereby covenant and agree with Lessor, its successors
and assigns, that:
(a) If said ▇▇▇▇▇▇, its Successors or assigns, shall default at any
time during the term granted by said Lease in the payment of Fixed
Minimum Rent, Additional Rental Payments or any other payment(s)
required under the Lease Agreement, or in the Performance of any
of the terms, Covenant. or conditions of said Lease Agreement on
the part of Lessee to be performed thereunder, and if any such
default shall not be remedied by Lessee within any cure period
provided Lessee pursuant to the terms of the Lease, then the
undersigned shall, on demand, pay to Lessor, its successors or
assigns, (i) the said Fixed Minimum Rent, Additional Rental
Payments and all other payments required under the Lease
Agreement, or any arrears thereof; and (ii) all damages that may
arise or be incurred by Lessor in consequence of Lessee's default
under said Lease, including all reasonable attorney' fees that may
be incurred by Lessor in enforcing Lessee's covenants and
agreements thereunder or that may be incurred by Lessor in
enforcing the covenants and agreement of the undersigned
hereunder, upon ten (10) days' notice from Lessor of any such
default or defaults by Lessee, during which period Guarantor shall
have the right to cure or cause Lessee to cure any such default;
(b) The Undersigned may, at Lessor's option, be joined in any action
against or proceeding commenced by Lessor against Lessee in
connection with or based upon said Lease or any term, covenant or
condition thereof, and that recovery may be had against the
undersigned in such action or proceeding against the undersigned
without Lessor, its successors or assigns, first asserting,
prosecuting or exhausting any remedy or claim against Lessee, its
successors or assigns;
(c) This Guarantee shall remain and continue in full force and effect
as to any renewal, extension, modification or amendment of said
Lease;
(d) The validity of this Guarantee and the obligation of the
undersigned hereunder shall in no manner be terminated, affected
or impaired by reason of any action which Lessor may take or fail
to take against Lessee or by reason of any waiver of, or failure
to enforce, any of the rights or remedies reserved to Lessor in
said Lease, or otherwise, or by reason of the bankruptcy or
insolvency of Lessee and whether or not the term of said Lease
shall terminate by reason of said bankruptcy or insolvency.
(e) So long as Lessee is controlled by the undersigned, the
undersigned waives notice of any and all notices or demands which
may be given by Lessor to Lessee, irrespective of whether or not
required to be given to Lessee under the terms of said ▇▇▇▇▇. If,
at any time during the term of the Lease, ▇▇▇▇▇▇ should no longer
be controlled by the undersigned, the undersigned may so notify
Lessor, and thereafter Lessor shall send copies of all notices
given to Lessee to the undersigned simultaneously with the giving
of such notices to ▇▇▇▇▇▇.
(f) Any notice or demand required or permitted to be delivered by the
terms of this Guarantee shall be in writing and shall be deemed to
be delivered (whether or not actually
received when deposited in the United States Mail, postage
prepaid, return receipt requested, addressed to Lessor and
Lessee at the respected address set forth in Section 1.05
of the Lease Agreement and addressed to the undersigned at
The Limited, Inc., Two Limited Parkway, Columbus, Ohio 43235,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, or at any other address within
the United States as one party has specified to the other
from time to time by written notice given in accordance with this
Subparagraph (f).
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be
executed by its duly authorized officer as of this 2nd day of JULY, 1990.
Signed in the presence of: GUARANTOR: LIMITED, INC.,
a Delaware corporation
By:
---------------------------- ----------------------------------
Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- Title: CHIEF FINANCIAL OFFICER
[LETTERHEAD OF CONTINENTAL REAL ESTATE COMPANIES]
January 9, 1996 CERTIFIED RECPT. # P 825 498 059
Limited Credit Services
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
RE: Lease between World Financial Network Bank (The Limited) and
Partners at Brooksedge dated July 2, 1990, for leased premises
at ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇:
Pursuant to Lease Section 1.04, base rent for the leased premises increases
to $832,889.53/yr., which is 110.7% of the fixed minimum rent for the first
60 months, effective February 1, 1996.
Commencing February 1, 1996, please submit the monthly rental payment of
$69,407.46 to:
Partners at Brooksedge
Attn: Accounting
P. O. Box 712
Columbus, Ohio 43215
Please do not hesitate to call me if you have any questions. Thank you.
Sincerely,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Property Management
cc: Lease File
Accounting
THIRD AMENDMENT OF LEASE
THIS THIRD AMENDMENT OF LEASE (the "Third Amendment") is entered into by
and between PARTNERS AT BROOKSEDGE, an Ohio general partnership ("Lessor"),
and WORLD FINANCIAL NETWORK NATIONAL BANK (U.S.) ("Lessee") as of the 18 day
of February, 1991.
WHEREAS, Continental Acquisitions, Inc. ("CAI"), ▇▇▇▇▇▇'s predecessor in
interest, and ▇▇▇▇▇▇ entered into an office lease as of July 2, 1990
providing for the construction and leasing of a 100,800 (approximate) square
foot building on ▇▇▇▇▇▇▇ Road in Westerville, Ohio, which lease was amended
by a first amendment of lease between CAI and ▇▇▇▇▇▇ dated as of September
11, 1990 and a second amendment of lease between Lessor and Lessee dated as
of November 16, 1990 (collectively, the lease, the first amendment of lease
and the second amendment of lease are herein referred to as the "Lease"); and
WHEREAS, ▇▇▇▇▇▇ and Lessee desire to amend the Lease as hereinafter set
forth;
NOW THEREFORE, in consideration of the mutual covenants herein contained
and contained in the Lease, Lessor and Lessee, intending to be legally bound,
agree as follows:
Section 1. COMPLETION DATE. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ agree that the
"completion date", as defined in Section 1.03 of the Lease, is January 23,
1991 and ▇▇▇▇▇▇ and ▇▇▇▇▇▇ further agree that the term of the Lease commenced
on January 23, 1991 and will expire on January 31, 2001, subject to earlier
termination or to extension as provided in the Lease.
Section 2. FIXED MINIMUM RENT. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ acknowledge and agree
that the fixed minimum rent as set forth in the first textual paragraph of
Section 1.04 of the Lease has been adjusted for the cost of Audit Items,
Additional Items and Net Change Order Costs as provided in Section 1.04 of
the Lease. Lessor and Lessee agree that the fixed minimum rent that shall be
payable by Lessee to Lessor for the first 60 months of the Lease term shall
be $62,698.70 per month. The monthly rental payable on February 1, 1991 is
$25,965.55, which consists of the difference between the adjusted monthly
rental as set forth herein and the advance rental payment of $54,936.00 made
by Lessee upon execution of the Lease plus rent for the month of January,
1991 in the amount of $18,202.85 pro rated in accordance with Section 2.01 of
the Lease. Monthly rental in the full adjusted amount of $62,698.70 shall be
due and payable beginning March 1, 1991.
Section 3. CONTINUED EFFECT. Except as amended hereby, the terms of
the Lease remain in full force and effect and are confirmed by the parties
hereto.
IN THE PRESENCE OF: PARTNERS AT BROOKSEDGE, an Ohio
General Partnership
By: Continental Properties, an Ohio
General Partnership, a Partner
/s/ [ILLEGIBLE] By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------- ---------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Managing General Partner
/s/ [ILLEGIBLE]
---------------------------------
By: Nationwide Property Management,
Inc., an Ohio corporation, a Partner
/s/ [ILLEGIBLE] By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------- ---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Vice President and General Manager
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
WORLD FINANCIAL NETWORK NATIONAL
BANK (U.S.)
/s/ [ILLEGIBLE] By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------- --------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President and Chief Executive Officer
/s/ [ILLEGIBLE]
---------------------------------
ACKNOWLEDGEMENTS
STATE OF OHIO )
)ss:
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this 22nd day of
February, 1991, by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as the managing general partner of
Continental Properties, an Ohio general partnership, a partner of Partners of
Brooksedge, an Ohio general partnership, on behalf of such partnerships.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Notary Public
STATE OF OHIO )
)ss: [SEAL]
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this 22nd day of
February, 1991, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as vice president and general manager
of Nationwide Property Management, Inc., an Ohio corporation and a partner of
Partners of Brooksedge, an Ohio general partnership, on behalf of such
corporation and partnership.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Notary Public
STATE OF OHIO )
)ss: [SEAL]
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this 20th day of
February, 1991, by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as president and CEO of World Financial
Network National Bank (U.S.), a National Banking Association, on behalf of
the association.
[SEAL] /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Notary Public
JOINDER BY GUARANTOR
The undersigned Guarantor of the Lease does hereby consent to the
foregoing Third Amendment and all previous amendments of the Lease and
acknowledges and affirms that the guaranty executed by the Guarantor with
respect to the Lease remains in full force and effect, notwithstanding the
amendments thereto. Guarantor acknowledges and agrees that its guaranty shall
extend to all rental payments and other obligations of Lessee as set forth in
the Third Amendment.
In the presence of: THE LIMITED, INC.
/s/ [ILLEGIBLE] By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------- ---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ [ILLEGIBLE] Its: Executive Vice President
--------------------------------- ---------------------------------
Chief Financial Officer