Exhibit 10.6
Xxxxx Road Annex
BUILDING LEASE AGREEMENT
This Lease Agreement (this "Lease") is entered into and made as of the
1st day of July, 1995, by and between Distribution Land Corp., a Delaware
corporation (hereinafter referred to as "Landlord") and Limited Too, Inc., a
Delaware corporation (hereinafter referred to as "Tenant").
WITNESSETH:
WHEREAS, Landlord is the owner of the fee simple title to an
approximately 11,479 acre parcel of land located on Xxxxx Road, Columbus, Ohio,
which land is depicted on Exhibit A attached hereto and incorporated herein by
this reference (the "Campus"); and
WHEREAS, the Campus is improved with, among other things, a certain
office/warehouse distribution facility containing approximately 100,600 square
feet of floor space as identified on the drawing of the Campus attached hereto
as Exhibit A (the "Building"); and
WHEREAS, Landlord wishes to (i) lease to Tenant the entire Building;
(ii) grant to Tenant the right to utilize, subject to the terms and conditions
of this Lease, portions of the land and improvements surrounding the Building;
and (iii) provide for the payment, by Tenant, of rent therefor and the
performance, by Tenant, of certain obligations with respect thereto; and
WHEREAS, Landlord, Tenant and certain other parties have entered into a
Services Agreement (the "Services Agreement") which relates, in part, to
certain aspects of the management, operation and ownership of the Building and
the Campus.
NOW, THEREFORE, in consideration of the premises described above and the
mutual promises set forth herein, Landlord and Tenant, intending to be legally
bound, hereby agree as follows:
I - LEASE OF BUILDING
1.01 -- Lease of Building. Landlord, in consideration of the rents and
covenants hereinafter set forth, does hereby demise, let and lease to Tenant,
and Tenant does hereby hire, take and lease from Landlord, on the terms and
conditions hereinafter set forth, the Building, to have and to hold the same,
with all appurtenances, unto Tenant for the Term hereinafter specified. Tenant
agrees that it will comply with the terms and conditions of the Services
Agreement as it relates to the Building and the Campus.
1.02 -- Basic Lease Provisions.
A. Building Address: 0000 Xxxxx Xxxx
Xxxxxxxx, Xxxx 00000
B. Building Description: a one-story office/distribution facility,
containing approximately 100,600 square feet of floor space,
33,248 square feet of which is office space, 7,112 square feet of
which is Building common area and 60,240 square feet of which is
distribution space
C. Building Square Footage: approximately 100,600 square feet
D. Term: Five (5) years, beginning on July 1, 1995 (the
"Commencement Date") and ending on June 30, 2000 (the
"Expiration Date")
E. Annual Base Rent:
(i) Office space -- $11.00 per square foot, or $365,728
(ii) Building common areas -- $11.00 per square foot, or
$78,232
(iii) Distribution space -- $2.85 per square foot, or $171,684
(iv) Total Annual Base Rent (for distribution and office space)
of $615,644
(v) The annual Base Rent shall be subject to periodic
adjustments as are provided in Section 4.02 of this Lease
F. Monthly Installments of Base Rent (for distribution and office
space): $51,303.67
G. Use: office-distribution use related to distribution for retail
sale of men's, women's and children's apparel, accessories,
personal care items and other products, and for all
administrative activities relating thereto
1.03 -- Description of the Building and the Common Areas.
H. The Building. The Building is depicted in the attached Exhibit A.
The address and description of the Building are specified in
Items A and B of the Basic Lease Provisions (which are set forth
in Section 1.02 of this Lease).
I. Common Areas. The Building is located within, and constitutes
a part of, the Campus. The Campus has been improved with the
Building, security buildings and facilities and roadways,
driveways, walkways, parking areas, loading areas, fences,
walls, hedges, plantings, poles, ponds, lakes, signs, utility
improvements, trees, plantings and other landscaping features
(the Campus, excluding the Building, all other buildings and
structures not subject to this Lease and further excluding those
areas and facilities identified on Exhibit B attached hereto and
made a part hereof by this reference, as said Exhibit B may be
amended from time to time, being referred to herein as the
"Common Areas").
II -- COMMON AREAS
2.01 -- Use of Common Areas. Subject to Landlord's right at any time to
use the Common Areas for its own purposes, Landlord hereby gives to Tenant, its
subtenants and their respective employees, agents, customers and invitees, the
nonexclusive right to use the Common Areas in common with and subject to the
same rights given to the tenants of other buildings and structures within the
Campus and their respective subtenants, employees, agents, customers and
invitees.
2.02 -- Rules and Regulations for Common Areas. The Common Areas shall
at all times be subject to the exclusive management and control of Landlord,
and Landlord shall have the right, from time to time, to establish, modify and
enforce reasonable rules and regulations with respect to all the Common Areas,
and the use of the Common Areas by Tenant, its subtenants and their respective
employees, agents, customers and invitees shall be subject to such rules and
regulations. Such rules and regulations may include, but shall not be limited
to, restrictions and parking, hours of operation, access routes, entry points
and similar matters.
2.03 -- Changes in Common Areas. Landlord may do and perform such acts
in and to the Common Areas as, in Landlord's business judgment, Landlord shall
determine to be advisable. Landlord hereby reserves the right to make
reconfigurations, alterations, additions, deletions or changes to the Common
Areas including, but not limited to, changes in size and configuration of the
Common Areas. Landlord also reserves the right to restrict and limit the use of
the Common Areas by Tenant, its subtenants and their respective employees,
agents, customers and invitees.
2.04 -- Maintenance of Common Areas. Subject to the provisions of
Section 4.03 hereof, Landlord shall adequately maintain the Common Areas in a
good and usable condition throughout the Term of this Lease.
2.05 -- Common Area Capital Improvements. Landlord may make capital
improvements to the Common Areas. In such case, Landlord may charge, as an
Operating Expense (as hereinafter defined), an amount equal to the annual
depreciation or amortization allowance with respect to the cost of such capital
improvements, as determined by Landlord in accordance with generally accepted
accounting principles, together with interest on such costs or the unamortized
balance thereof, at the rate as may be paid by or accrued on the books of
Landlord on the unamortized balance.
III -- TERM AND POSSESSION
3.01 -- Term. The Term of this Lease shall be for the period of years
and months specified in Item D of the Basic Lease Provisions, and shall begin
and end on the Commencement Date and Expiration Date, respectively, specified
in Item D of the Basic Lease Provisions, unless the Term of this Lease is
renewed, modified or terminated as provided elsewhere herein. If the
Commencement and Expiration Dates have not been established at the time of the
execution of this Lease, then Landlord and Tenant agree, upon demand of the
other, to execute a writing establishing the Commencement and Expiration Dates
as soon as the Commencement Date has been determined.
3.02 -- Tenant's Acceptance of the Building. Tenant hereby accepts the
Building in an "as is" condition and acknowledges that Landlord has made no
representations or warranties with respect thereto, and that Tenant has
inspected the Building and found it to be in satisfactory condition.
3.03 -- Surrender of the Building. Upon the expiration or earlier
termination of this Lease, or upon the exercise by Landlord of its right to
re-enter the Building without terminating this Lease, Tenant shall immediately
surrender the Building to Landlord, together with all alterations, improvements
and other property as provided elsewhere herein, in broom-clean condition and
in good order, condition and repair, except for ordinary wear and tear and
damage which Tenant is not obligated to repair, failing which Landlord may
restore the Building to such condition at Tenant's expense. Upon such
expiration or termination, Tenant may, provided Tenant is not then in default
and unless prohibited from doing so by other provisions of this Lease, remove
its personal property and trade fixtures. Tenant shall promptly repair any
damage caused by any such removal, and shall restore the Building to the
condition existing prior to the installation of the items so removed, ordinary
wear and tear and damage which Tenant is not obligated to repair excepted. If
Tenant fails to remove any and all such trade fixtures from the Building on the
Expiration Date or earlier termination of this Lease, all such trade fixtures
shall become the property of Landlord, unless Landlord elects to require their
removal, in which case Tenant shall, at its cost, promptly remove the same and
restore the Building to its prior condition.
3.04 -- Holding Over. In the event that Tenant shall not immediately
surrender the Building on the Expiration Date of the Term hereof, Tenant shall,
by virtue of the provisions hereof, become a tenant by the month at the monthly
rent in effect during the last month of the Term of this Lease, which monthly
tenancy shall commence with the first day next after the expiration of the Term
of this Lease. Tenant, as a monthly tenant, shall be subject to all of the
terms, conditions, covenants and agreements of this Lease. Tenant shall give to
Landlord at least thirty (30) calendar days written notice of any intention to
quit the Building, and Tenant shall be entitled to thirty (30) calendar days
written notice to quit the Building, unless Tenant is in default hereunder, in
which event Tenant shall not be entitled to any notice to quit, the usual
thirty (30) calendar days notice to quit being hereby expressly waived.
Notwithstanding the foregoing provisions of this Section 3.04, in the event
that Tenant shall hold over after the expiration of the Term of this Lease, and
if Landlord shall desire to regain possession of the Building promptly at the
expiration of the Term of this Lease, then, at any time prior to Landlord's
acceptance of rent from Tenant as a monthly tenant hereunder, Landlord, at its
option, may forthwith re-enter and take possession of the Building without
process, or by any legal process in force.
3.05 -- Termination of Lease. Upon at least thirty (30) days prior
written notice to the other at any time after the Commencement Date, either
Landlord or Tenant may terminate and cancel this Lease. Upon such cancellation
and termination, Tenant shall surrender the Building to Landlord in accordance
with Section 3.03 of this Lease.
IV -- RENT
4.01 -- Base Rent. Commencing on July 1, 1995, Tenant shall pay to
Landlord, as Base Rent for the Building, the annual sum specified in Item E of
the Basic Lease Provisions, payable in equal consecutive monthly installments
as specified in Item F of the Basic Lease Provisions, in advance, on or before
the first day of each and every calendar month during the Term of this Lease;
provided, however, that if the Expiration Date shall be a day other than the
last day of a calendar month, the Base Rent installment for such last
fractional month shall be prorated on the basis of the number of days during
the month this Lease was in effect in relation to the total number of days in
such month.
4.02 -- Base Rent Adjustments.
A. CPI Adjustments. On the third anniversary of the Commencement Date,
the Base Rent due and payable to Landlord shall be adjusted for the next
succeeding two (2) year period. The adjusted Base Rent for each year in each
such two (2) year period shall be equal to the Base Rent paid during the
immediately preceding twelve (12) month period (the "lease year") increased by
a percentage equal to the percentage increase in the CPI (as hereinafter
defined) computed by comparing the CPI figure for that month which is two
months prior to the adjustment date (the "adjustment month") with the CPI
figure for that month occurring thirty-six (36) months prior to the adjustment
month (the "base month"). For example, in computing the percentage increase for
the lease year commencing July 1, 2000, the percentage increase in the CPI
would be determined by comparing the CPI figure for May, 2000, the adjustment
month, with the CPI figure for May, 1997, the base month. For the purposes
hereof, "CPI" shall mean the Consumer Price Index, published by the Bureau of
Labor Statistics of the United States Department of Labor, in the column for
"all items" in the table titled "Consumer Price Index for all Urban Consumers:
U.S. City average, 1982-1984 = 100".
If the Index at any time herein is no longer published or issued,
Landlord and Tenant shall agree on such other index as is then generally
recognized for determination of purchasing power in the United States.
B. Capital Improvements. If Landlord shall, at any time after the
Commencement Date, install any equipment or make any other capital improvement
to the Building, then Landlord may add to the Base Rent (to be paid in monthly
installments), in each year during the useful life of such equipment or other
capital improvement, an amount equal to the annual depreciation or amortization
allowance with respect to the cost of such equipment or other capital
improvement, as determined by Landlord in accordance with generally accepted
accounting principles, together with interest on such cost or the unamortized
balance thereof at the rate as may be paid by or accrued on the books of
Landlord on the unamortized balance.
4.03 -- Additional Rent.
A. Definitions. For purposes of this Section 4.03, the following
definitions shall apply:
1. "Additional Rent"-- shall mean Tenant's proportionate share of
Landlord's Operating Expenses.
2. "Operating Expenses"--shall mean all costs and expenses of
any kind or nature incurred by Landlord in managing,
operating, equipping, policing, protecting, lighting, repairing,
replacing and maintaining the Common Areas in such manner as
Landlord shall deem to be appropriate, including, but not
limited to, the cost of management services for the Campus as
paid by Landlord pursuant to the Services Agreement (as
hereinafter defined), the costs incurred in connection with
security services and security personnel within the Common
Areas, the annual depreciation or amortization allowance with
respect to the cost of capital improvements made with respect to
the Common Areas, all the costs and expenses of management,
illumination and maintenance of common signs, cleaning,
lighting, snow removal, landscaping, supplies, the cost of
maintenance and replacement of equipment, reasonable
depreciation of maintenance equipment used in the operation and
maintenance of the Common Areas, total compensation and
benefits (including premiums for workers' compensation and
other insurance) paid to or on behalf of the employees involved
in the performance of the work specified herein, and an amount
equal to fifteen percent (15%) of the total of all the foregoing
costs and expenses to cover Landlord's administrative costs.
3. Tenant's proportionate share of the foregoing shall be
determined by multiplying the total expenses incurred by
Landlord or Landlord's designee for Operating Expenses by a
fraction, the numerator of which shall be the Building Square
Footage and the denominator of which shall be the total number
of square feet in all other office/distribution buildings
(including the shipping building but excluding security buildings,
maintenance and storage sheds and similar improvements)
located within the Campus; with the method of measurement to
be as reasonably determined by Landlord.
B. Payment Obligation. In addition to the Base Rent specified in this
Lease, Tenant shall, in each calendar year or partial calendar year during the
Term of this Lease, pay to Landlord the Additional Rent. The Additional Rent
shall be paid by Tenant in monthly installments, in such amounts as are
estimated and billed by Landlord at the beginning of each calendar year, each
installment being due on the first day of each calendar month. Within one
hundred twenty (120) days (or such additional time thereafter as is reasonable
under the circumstances) after the end of each calendar year, Landlord shall
deliver to Tenant a Statement of Additional Rent for such calendar year, and
the monthly installments paid or payable shall be adjusted between Landlord and
Tenant, the parties hereby agreeing that Tenant shall pay to Landlord or
Landlord shall credit Tenant's account or (if such adjustment is at the end of
the Lease Term) pay Tenant, as the case may be, within thirty (30) days of
receipt of such statement, such amounts as may be necessary to effect
adjustment to the actual Additional Rent for such calendar year. If the
Commencement Date shall be a day other than the first day of a calendar year,
or if the Expiration Date or other date of termination of this Lease shall be a
day other than the last day of a calendar year, then the Additional Rent for
such partial calendar year shall be prorated on the basis of the number of days
during the year this Lease was in effect in relation to the total number of
days in such year.
C. Tenant Verification. Tenant or its accountants shall have the right to
inspect, at reasonable times and in a reasonable manner during the forty-five
(45) calendar day period following the delivery of Landlord's statement of
Additional Rent, such of Landlord's books of account and records as pertain to
and contain information concerning such costs and expenses, in order to verify
the amounts thereof. If Tenant shall dispute any item or items included in the
determination of Additional Rent for a particular calendar year, and such
dispute is not resolved by the parties hereto within forty-five (45) calendar
days after the statement for such year was delivered to Tenant, then either
party may, within thirty (30) calendar days thereafter, request that a firm of
independent certified public accountants selected by Landlord render an opinion
as to whether or not the disputed item or items may properly be included in the
determination of Additional Rent for such year; and the opinion of such firm on
the matter shall be conclusive and binding upon the parties hereto. The fees
and expenses incurred in obtaining such an opinion shall be borne by the party
adversely affected thereby; and if more than one item is disputed and the
opinion adversely affects both parties, the fees and expenses shall be
apportioned accordingly. If Tenant shall not dispute any item or items included
in the determination of Additional Rent for a particular calendar year within
forty-five (45) calendar days after the statement for such year was delivered
to it, Tenant shall be deemed to have approved such statement.
4.04 -- Late Payment Service Charge; Interest. In the event any
installment of Base Rent, or any installment of Additional Rent, is not paid
when due, and such nonpayment continues for a period of ten (10) days after
Landlord gives to Tenant written notice of such nonpayment, then, for each and
every such payment, Tenant shall immediately pay a service charge equal to five
percent (5%) of the amount not timely paid, together with interest on the
amount not timely paid at the rate of eight percent (8%) per annum, from the
due date of such payment until paid. The provisions of this Section 4.04 shall
not be construed to extend the date for payment of Base Rent or Additional Rent
or to relieve Tenant of its obligations to pay all such items at the time or
times herein stipulated, and neither demand for, nor collection by Landlord of,
late payment service charges and interest pursuant to this Section 4.04 shall
be construed as a cure of any default in payment by Tenant.
V -- USE OF BUILDING
5.01 -- Specific Use. The Building shall be occupied and used
exclusively for the purposes-specified in Item I of the Basic Lease Provisions
and for purposes incidental thereto, and shall not be used for any other
purposes.
5.02 -- Covenants Regarding Use. In connection with its use of the
Building, Tenant agrees to do the following:
A. Tenant shall use the Building and conduct its business therein in a
safe, careful, reputable and lawful manner; shall keep any garbage, trash,
rubbish or other refuse in sealed containers within the interior of the
Building until removed and placed in a dumpster or other authorized container
for the deposit of garbage and refuse, which shall be located in an area
designated by Landlord; shall not permit such garbage, trash, rubbish or refuse
to accumulate; and shall have such garbage, trash, rubbish and refuse removed
from said designated area at least once per week.
B. Tenant shall not commit, nor allow to be committed, in, on or about
the Building any act of waste, including any act which might deface, damage or
destroy the Building or any part thereof; use or permit to be used within the
Building any hazardous substance, equipment, or other thing which might cause
injury to person or property or increase the danger of fire or other casualty
in, on or about the Building; or permit any objectionable or offensive noise or
odors to be emitted from the Building. Notwithstanding the foregoing, Landlord
acknowledges that Tenant will utilize certain distribution equipment which, but
for this sentence, might be deemed to violate this provision and use of such
equipment is expressly permitted.
C. Tenant shall not use the Building, or allow the Building to be used,
for any purpose or in any manner other than the permitted uses which would, in
Landlord's opinion, invalidate any policy of insurance now or hereafter carried
on the Building or increase the rate of premiums payable on any such insurance
policy. Should Tenant fail to comply with this covenant, Landlord may, at its
option, require Tenant to stop engaging in such activity or to reimburse
Landlord as additional rent for any increase in premiums charged during the
Term of this Lease on the insurance carried by Landlord on the Building and
attributable to the use being made of the Building by Tenant.
5.03 -- Access to and Inspection of the Building. Landlord, its
employees and agents shall have the right to enter any part of the Building, at
all reasonable times after reasonable notice, for the purpose of examining or
inspecting the same, showing the same to prospective purchasers, mortgagees or
tenants, and for making such repairs, alterations or improvements to the
Building as Landlord may deem necessary or desirable. Landlord shall incur no
liability to Tenant for such entry, except with respect to the negligence or
intentional, wrongful acts or omissions of Landlord, its agents, employees and
invitees, nor shall such entry constitute an eviction of Tenant or a
termination of this Lease, or entitle Tenant to any abatement of Rent therefor.
5.04 -- Compliance with Laws. Tenant shall comply with all laws,
statutes, ordinances, rules, regulations and orders of any federal, state,
municipal, or other government or agency thereof having jurisdiction over and
relating to the use and occupancy of the Building, including any such laws,
statutes or regulations requiring modifications or alterations to the Building.
5.05 -- Rules and Regulations. The Building shall at all times be
subject to the control of the Landlord, and Landlord shall have the right, from
time to time, to establish, modify and enforce reasonable rules and regulations
with respect to the Building, and the use of the Building by Tenant, its
subtenants and their respective employees, agents, customers and invitees shall
be subject to such rules and regulations. Such rules and regulations may
include, but shall not be limited to, restrictions upon Tenant's hours of
operation, noise levels within the Building, load placement and utility usage.
5.06 -- Special Amenities. Tenant intends to operate within the Building
certain "special amenities" for the benefit of Tenant, its subtenants and their
respective employees, agents, customers and invitees. Such special amenities
include the Building reception area, mail room and cafeteria. Tenant agrees and
acknowledges that the continued operation of such facilities is important to
Landlord and the effective operation of the Building and the Campus.
Accordingly, Tenant agrees that should Tenant either cease operation of any or
all of such special amenities or fail to continue to operate such special
amenities at the current level of service, then Landlord shall have the right,
but not the obligation, to recapture that portion of the Building in which such
special amenities are located (with an appropriate adjustment to Tenant's Base
Rent hereunder). Should Landlord so recapture that portion of the Building in
which the special amenities were located and thereafter commence to operate
such special amenities, then the costs incurred by Landlord in the operation of
such special amenities shall be Operating Expenses pursuant to Section 4.03
hereof.
5.07 -- Landlord's Use of the Building. Landlord may, from time to time
during the Term of the Lease, have the need or desire to utilize certain common
areas and facilities located within the Building. In such cases, after
reasonable notice and subject to availability, Landlord shall have the right,
on a temporary basis, to use and occupy such areas and facilities. Landlord
shall pay to Tenant a reasonable rent for the use of such common areas and
facilities and, in addition, shall pay all costs arising out of its use
thereof, including but not limited to the costs of any special janitorial
services or refuse collection required as a result of such use.
VI --UTILITIES AND OTHER BUILDING SERVICES
6.01 -- Electric, Gas, Water and Telephone Service. Landlord shall
contract with the appropriate public utilities companies or other providers
supplying electric, gas, water, sanitary sewer, telephone services and all
other utilities and services to the Building or to Tenant and shall pay
directly all charges for such services from and after the Commencement Date.
Thereafter, Landlord shall reasonably allocate those utility or service charges
attributable to the Building or to the Tenant and, on a periodic basis, provide
to Tenant a written statement detailing Tenant's allocation thereof. Tenant
shall pay to Landlord, within fifteen (15) days of Tenant's receipt of the
written statement therefor, all such utility and service charges. Provided,
however, that Tenant may, if such utilities or services are separately metered
for the Building or if Tenant, at its sole cost and expense, undertakes to have
such utilities or services separately metered for the Building, elect to
contract directly for all such services and to pay directly all charges
therefor.
6.02 -- Janitorial and Refuse Collection Service. Tenant shall contract
for janitorial and refuse collection services for the Building and shall pay
for all charges for such services.
6.03 -- Discontinuances and Interruptions of Utility Services. Landlord
shall not be liable to Tenant in damages or otherwise (i) if any utilities
shall become unavailable from any public utility company, public authority, or
any other person supplying or distributing such utility, or (ii) for any
interruption in any utility service (including, without limitation, any
heating, ventilation or air conditioning) caused by the making of any necessary
repairs or improvements or by any cause beyond Landlord's reasonable control,
and the same shall not constitute a termination of this Lease or an eviction of
Tenant.
6.04 -- Management. Tenant agrees and acknowledges that certain property
management services will be provided with respect to the Building pursuant to
the terms of the Services Agreement. Tenant shall pay, immediately upon receipt
of the xxxx therefor, all charges for property management services provided
relative to the Building in accordance with the terms and conditions of the
Services Agreement.
VII -- SIGNS
Tenant shall not inscribe, paint, affix or display any signs,
advertisements or notices on the Building or the Campus without Landlord's
prior written consent, which consent Landlord shall have no obligation to give
and which may be given or withheld in Landlord's sole discretion.
VIII -- REPAIRS, MAINTENANCE, ALTERATIONS, IMPROVEMENTS AND FIXTURES
8.01 -- Repair and Maintenance of Building. Tenant shall keep and
maintain the Building (including all doors, whether interior or exterior, any
plate glass in the exterior walls and doors, the roof, exterior and interior
structural walls, and the foundation) and the electrical, plumbing, heating,
ventilation and air conditioning systems serving the Building in good order,
condition and repair, and, except for damage which is covered by Landlord's
casualty insurance as provided in Article IX of this Lease, shall make all
necessary repairs to the Building and the electrical, plumbing, heating,
ventilation and air conditioning systems serving the Building, and will make
all replacements from time to time required thereto at its expense.
8.02 -- Alterations or Improvements. Tenant shall neither make, nor
permit to be made (by its subtenants or otherwise), any alterations or
improvements to the Building without obtaining the prior written consent of
Landlord, which consent shall not be unreasonably withheld. If Landlord allows
Tenant to make any such alterations or improvements, Tenant shall make the same
in accordance with all applicable laws and building codes, in a good and
workmanlike manner and in quality equal to or better than the original
construction of the Building, and shall comply with such requirements as
Landlord considers necessary or desirable, including, without limitation,
requirements as to the manner in which and the times at which such work shall
be done and the contractor or subcontractors to be selected to perform such
work. Tenant shall promptly pay all costs attributable to such alterations and
improvements and shall indemnify Landlord against any mechanics' liens or other
liens or claims filed or asserted as a result thereof and against any costs or
expenses which may be incurred as a result of building code violations
attributable to such work. Tenant shall promptly repair any damage to the
Building caused by any such alterations or improvements. Any alterations or
improvements to the Building, except movable equipment and trade fixtures,
shall become a part of the realty and the property of Landlord, and shall not
be removed by Tenant.
8.03 -- Trade Fixtures. Any trade fixtures installed in the Building by
Tenant at its own expense, such as movable partitions, counters, shelving, and
the like, may be removed on the Expiration Date or earlier termination of this
Lease, provided that Tenant is not then in default, that Tenant bears the cost
of such removal, and further that Tenant repairs, at its own expense, any and
all damage to the Building resulting from such removal. If Tenant fails to
remove any and all such trade fixtures from the Building on the Expiration Date
or earlier termination of this Lease, all such trade fixtures shall become the
property of Landlord, unless Landlord elects to require their removal, in which
case Tenant shall, at its cost, promptly remove the same and restore the
Building to its prior condition.
IX -- FIRE OR OTHER CASUALTY; CASUALTY INSURANCE
9.01 -- Substantial Destruction of the Building. If the Building should
be substantially destroyed or damaged (which, as used herein, means destruction
or material damages to at least fifty percent (50%) of the Building) by fire or
other casualty, then either party hereto may, at its option, terminate this
Lease by giving written notice thereof to the other party within thirty (30)
calendar days after the date of such casualty. In such event, all Base Rent and
Additional Rent due under this Lease shall be apportioned to and shall cease as
of the date of such casualty, and Tenant shall be given a reasonable period of
time, not to exceed 45 calendar days after receipt of written notice of
termination (or fourteen (14) days after giving notice of termination to
Landlord, as appropriate) under this Section 9.01, in which to remove its trade
fixtures and personal property, whereupon both parties shall be released from
all further obligations and liability hereunder (except for any obligations
previously incurred hereunder). If neither party exercises this option, then
the Building shall be reconstructed and restored, at Landlord's expense, to
substantially the same condition as it was prior to the casualty; provided,
however, that, if Tenant has made any additional improvements pursuant to
Section 8.02, Tenant shall reimburse Landlord for the cost of reconstructing
the same. In the event of such reconstruction, all Base Rent and Additional
Rent due under this Lease shall be abated from the date of the casualty until
substantial completion of the reconstruction repairs; and this Lease shall
continue in full force and effect for the balance of the Term. Landlord shall
use reasonable diligence in completing such reconstruction repairs.
9.02 -- Partial Destruction of the Building. If, prior to the
commencement of the last two (2) years of the lease Term, the Building should
be damaged by fire or other casualty, but not substantially destroyed or
damaged to the extent provided in Section 9.01, then such damaged part of the
Building shall be reconstructed and restored, at Landlord's expense, to
substantially the same condition as it was prior to the casualty; provided,
however, that, if Tenant has made any additional improvements pursuant to
Section 8.02, Tenant shall reimburse Landlord for the cost of reconstructing
the same. In such event, all Base Rent and Additional Rent due under this Lease
shall be abated in the proportion which the approximate area of the damaged
part bears to the total area in the Building from the date of the casualty
until substantial completion of the reconstruction repairs; and this Lease
shall continue in full force and effect for the balance of the Term. Landlord
shall use reasonable diligence in completing such reconstruction repairs.
If, subsequent to the commencement of the last two (2) years of the
Lease Term, the Building should be damaged by fire or other casualty, but not
substantially destroyed or damaged to the extent provided in Section 9.01, then
Landlord, at its option, may terminate this Lease by giving written notice
thereof to Tenant within thirty (30) calendar days after the date of such
casualty. In such event, all Base Rent and Additional Rent due under this Lease
shall be apportioned to and shall cease as of the date of such casualty, and
Tenant shall be given a reasonable period of time, not to exceed forty-five
(45) calendar days after receipt of termination notice as set forth above, in
which to remove its trade fixtures and personal property, whereupon both
parties shall be released from all further obligations and liability hereunder
(except for any obligations previously incurred hereunder). If Landlord does
not exercise its option to terminate, then such damaged part shall be
reconstructed and restored in accordance with the provisions of the first
paragraph of this Section 9.02.
9.03 -- Casualty Insurance. Tenant acknowledges and agrees that certain
policies of insurance will be acquired, in such amounts, with such coverages
and with such insurers as provided for in the Services Agreement. Tenant shall
pay, immediately upon receipt of the xxxx therefor, the costs of insurance so
acquired pursuant to the Services Agreement which relate to the Building in
accordance with the terms and conditions of the Services Agreement.
9.04 -- Waiver of Subrogation. Landlord and Tenant each hereby waive any
and all right that they may have to recover from the other damages for any loss
occurring to them by reason of any act or omission of the other, but only to
the extent that the waiving party is actually compensated therefor by
insurance; provided that, this waiver shall be effective only with respect to
loss or damage occurring during such time as the waiving party's coverage under
the appropriate policy of insurance is not adversely affected by this waiver.
If, in order to avoid such adverse effect, an endorsement must be added to any
insurance policy required hereunder, Landlord and Tenant shall cause such
endorsement immediately to be added and thereafter maintained throughout the
term of this Lease.
X -- GENERAL PUBLIC LIABILITY INDEMNIFICATION AND INSURANCE
10.01 -- Indemnification. Tenant shall assume the risk of, be
responsible for, and have the obligation to insure against, and indemnify
Landlord and hold it harmless from any and all liability for any loss, damage
or injury to person or property occurring in, on or about the Campus and the
Building, regardless of cause, except for that caused by the negligence or
intentional wrongful acts of Landlord and its employees, agents, customers and
invitees; and Tenant hereby releases Landlord from any and all liability for
the same. Landlord shall assume the risk of, be responsible for, and have the
obligation to insure against, and indemnify Tenant and hold it harmless from
any and all liability for any loss, damage or injury to person or property
resulting from the gross negligence or intentional wrongful acts of Landlord
and its employees, agents, customers and invitees; and Landlord hereby releases
Tenant from any and all liability for the same. The obligation to indemnify
hereunder shall include the duty to defend against any claims asserted by
reason of such loss, damage or injury and to pay any judgments, settlements,
costs, fees and expenses, including attorneys' fees, incurred in connection
therewith.
10.02 -- Tenant's Insurance. Tenant acknowledges and agrees that certain
policies of general liability and property damage insurance will be acquired,
in such amounts, with such coverages and with such insurers as provided for in
the Services Agreement. Tenant shall pay, immediately upon receipt of the xxxx
therefor, the costs of all insurance policies so acquired pursuant to the
Services Agreement which relate to the Building in accordance with the terms
and conditions of the Services Agreement.
XI -- TAXES
Tenant acknowledges and agrees that real and personal property taxes
relating to the Building will be paid as provided in the Services Agreement.
Tenant shall pay all such taxes attributable to the Building in accordance with
the terms and conditions of the Services Agreement immediately upon request, by
Tenant, of a written statement from Landlord detailing the cost thereof.
XII -- EMINENT DOMAIN
If the whole or any part of the Building shall be taken for public or
quasipublic use by a governmental or other authority having the power of
eminent domain, or shall be conveyed to such authority in lieu of such taking,
and if such taking or conveyance shall cause the remaining part of the Building
to be untenantable and inadequate for use by Tenant for the purpose for which
it was leased, then Tenant may, at its option, terminate this Lease as of the
date Tenant is required to surrender possession of the Building. In such event,
all Base Rent and Additional Rent due under this Lease shall be apportioned to
and shall cease as of the date Tenant is required to surrender possession of
the Building, and both parties shall be released from all further obligations
and liability hereunder (except for any obligations previously incurred
hereunder). If a part of the Building shall be taken or conveyed, but the
remaining part is tenantable and adequate for Tenant's use, then this Lease
shall be terminated as to the part taken or conveyed as of the date Tenant
surrenders possession; Landlord shall, to the extent that condemnation proceeds
are available, make such repairs, alterations and improvements (exclusive of
repairs, alterations or improvements to tenant improvements, if any, installed
by Tenant pursuant to Section 8.02) as may be necessary to render the part not
taken or conveyed tenantable; and all Base Rent and Additional Rent due under
this Lease shall be reduced in proportion to the part of the Building so taken
or conveyed. All compensation awarded for such taking or conveyance shall be
the property of Landlord, without any deduction therefrom for any present or
future estate of Tenant, and Tenant hereby assigns to Landlord all of its
right, title and interest in and to any such award. However, Tenant shall have
the right to recover from such authority, but not from Landlord, such
compensation as may be awarded to Tenant on account of moving and relocation
expenses and depreciation to and removal of Tenant's trade fixtures and
personal property and alterations or tenant improvements, if any, installed by
Tenant pursuant to Section 8.02.
XIII -- LIENS
If, because of any act or omission of Tenant or anyone claiming by,
through, or under Tenant, any mechanic's lien or other lien shall be filed
against the Building or against other property of Landlord (whether or not such
lien is valid or enforceable as such), Tenant shall, at its own expense, cause
the same to be discharged or bonded of record within a reasonable time, not to
exceed thirty (30) calendar days after the date Tenant becomes aware of the
filing thereof, and shall also indemnify Landlord and hold it harmless from any
and all claims, losses, damages, judgments, settlements, costs and expenses,
including attorneys' fees, resulting therefrom or by reason thereof.
XIV -- ASSIGNMENT AND SUBLETTING
Tenant will not assign, transfer, mortgage, or otherwise encumber this
Lease or sublet or rent (or permit occupancy or use of) the Building, or any
part thereof, without obtaining the prior written consent of Landlord, which
consent Landlord shall have no obligation to give and which may be given or
withheld in Landlord's sole discretion. Provided, however, that, in the case of
a sublease to any subtenant affiliated with the Tenant, Landlord's consent will
not be required so long as (i) Tenant utilizes the form of sublease which has
been prescribed by Landlord, and (ii) such subtenant executes and delivers to
Landlord an appropriate attornment agreement. For the purposes of this
provision, an "affiliated' subtenant shall mean any subtenant which controls,
is controlled by or is under common control with Landlord. The consent of
Landlord to any assignment or subletting, or, in the case of a subtenant
affiliated with the Tenant, a subletting without the Landlord's consent, shall
not be construed as a waiver or release of Tenant from the Terms of any
covenant or obligation under this Lease, nor shall the collection or acceptance
of rent from any such assignee, subtenant or occupant constitute a waiver or
release of Tenant of any covenant or obligation contained in this Lease, nor
shall any assignment or subletting be construed to relieve Tenant from
obtaining the consent in writing of Landlord to any further assignment or
subletting. In the event that Tenant defaults hereunder, Tenant hereby assigns
to Landlord the rent due from any subtenant of Tenant and hereby authorizes
each such subtenant to pay said rent directly to Landlord. All assignments or
sublettings by Tenant hereunder, whether with or without Landlord's consent,
shall be accomplished with and evidenced by assignment or subletting documents
which have been expressly approved by Landlord.
XV -- TRANSFER BY LANDLORD
15.01 -- Sale and Conveyance of the Building. Landlord shall have the
right to sell and convey the Building and the Campus at any time during the
Term of this Lease, subject only to the rights of Tenant hereunder; and such
sale and conveyance shall operate to release Landlord from liability hereunder
for all acts or omissions occurring after the date of such conveyance.
15.02 -- Subordination. Unless a mortgagee shall otherwise elect, as
provided in Section 15.03, this Lease is and shall be subject and subordinate
to the lien of any and all mortgages (which term "mortgages" shall include both
construction and permanent financing and shall include deeds of trust and
similar security instruments) which may now or hereafter encumber or otherwise
affect the Building, the Campus, or both, and to all and any renewals,
extensions, modifications, recastings or refinancings thereof. In confirmation
of such subordination, Tenant shall, at Landlord's request, promptly execute
any requisite or appropriate certificate or other document. Tenant agrees that
in the event that any proceedings are brought for the foreclosure of any such
mortgage, Tenant shall attorn to the purchaser at such foreclosure sale, if
requested to do so by such purchaser, and to recognize such purchaser as the
landlord under this Lease, provided that such purchaser agrees not to disturb
Tenant's possession and other rights under this Lease so long as Tenant is not
in default hereunder, and Tenant waives the provisions of any statute or rule
of law, now or hereafter in effect, which may give or purport to give Tenant
any right to terminate or otherwise adversely affect this Lease and the
obligations of Tenant hereunder, in the event that any such foreclosure
proceeding is prosecuted or completed.
15.03 -- Mortgagee's Unilateral Subordination. If a mortgagee shall so
elect by notice to Tenant or by the recording of a unilateral declaration of
subordination, this Lease and Tenants rights hereunder shall be superior and
prior in right to the mortgage of which such mortgagee has the benefit, with
the same force and effect as if this Lease had been executed, delivered and
recorded prior to the execution, delivery and recording of such mortgage,
subject, nevertheless, to such conditions as may be set forth in any such
notice of declaration which do not result in Tenant's occupancy under this
Lease being disturbed while Tenant is not in default hereunder.
15.04 -- Subordination to Covenants, Conditions and Restrictions. Tenant
agrees that this Lease shall be subordinate and subject to any covenants,
conditions, easements and restrictions ("CCR's") which Landlord, in its sole
discretion, hereafter grants or adopts with respect to or imposes upon the
Campus, or any portion thereof, as long as such CCR's do not substantially
impair Tenant's use of the Building for the permitted uses hereunder. In
confirmation of such subordination, Tenant shall, at Landlord's request,
promptly execute any requisite or appropriate certificate or other document.
15.05 -- Exculpation. If Landlord shall fail to perform any covenant,
term or condition of this Lease, upon Landlord's part to be performed, and if,
as a consequence of such default, Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied only out of the proceeds of sale
received upon execution of such judgment and levied thereon against the right,
title and interest of Landlord in the Building and out of rents or other income
from the Building receivable by Landlord, or out of the consideration received
by Landlord from the sale or other disposition of all or any part of Landlord's
right, title and interest in the Building, subject, nevertheless, to the rights
of any mortgagee, and neither Landlord nor any of the shareholders, directors
or officers of Landlord, shall be liable for any deficiency.
XIV - DEFAULTS AND REMEDIES
16.01 -- Defaults by Tenant. The occurrence of any one or more of the
following events shall be a default and breach of this Lease by Tenant:
A. Tenant shall fail to pay any monthly installment of Base Rent or
Additional Rent within five (5) calendar days after the same shall be due and
payable, or any other sum(s) within ten (10) calendar days after the same shall
be due and payable, such nonpayment continuing for a period of ten (10) days
after Landlord gives to Tenant written notice of such nonpayment.
B. Tenant shall fail to perform or observe any term, condition, covenant
or obligation required to be performed or observed by it under this Lease for a
period of thirty (30) calendar days or more after notice thereof from Landlord;
provided, however, that if the term, condition, covenant or obligation to be
performed by Tenant is of such nature that the same cannot reasonably be
performed within such thirty (30) day period, such default shall be deemed to
have been cured if Tenant commences such performance within said thirty (30)
day period and thereafter diligently undertakes to complete the same.
C. A trustee or receiver shall be appointed to take possession of
substantially all of Tenant's assets in or about the Building or of Tenant's
interest in this Lease (and Tenant does not regain possession within sixty (60)
calendar days after such appointment); Tenant makes an assignment for the
benefit of creditors; or substantially all of Tenant's assets in or about the
Building or Tenant's interest in this Lease are attached or levied upon under
execution (and Tenant does not discharge the same within sixty (60) calendar
days thereafter).
D. A petition in bankruptcy, insolvency, or for reorganization or
arrangement is filed by or against Tenant pursuant to any federal or state
statute (and, with respect to any such petition filed against it, Tenant fails
to secure a stay or discharge thereof within sixty (60) calendar days after the
filing of the same).
16.02 -- Remedies of Landlord. Upon the occurrence of any event of
default set forth in Section 16.01, Landlord shall have the following rights
and remedies, in addition to those allowed by law, any one or more of which may
be exercised without further notice to or demand upon Tenant:
E. Landlord may re-enter the Building and cure any default of Tenant, in
which event Tenant shall reimburse Landlord as additional rent for any costs
and expenses which Landlord may incur to cure such default; and Landlord shall
not be liable to Tenant for any loss or damage which Tenant may sustain by
reason of Landlord's action, regardless of whether caused by Landlord's
negligence or otherwise.
F. Landlord may terminate this Lease as of the date of such default, in
which event: (1) neither Tenant nor any person claiming under or through Tenant
shall thereafter be entitled to possession of the Building, and Tenant shall
immediately thereafter surrender the Building to Landlord; (2) Landlord may
re-enter the Building and dispossess Tenant or any other occupants of the
Building by force, summary proceedings, ejectment or otherwise, and may remove
their effects, without prejudice to any other remedy which Landlord may have
for possession or arrearages in rent; and (3) notwithstanding the termination
of this Lease (a) Landlord may recover from Tenant, as general damages, the
maximum amount allowed by law, which, at a minimum, shall be the present value
of the balance of the Base Rent and Additional Rent which would have been due
and payable for the balance of the Term of this Lease, less the present value
of the fair rental value of the Building for such period (with said present
values being determined using an eight percent (8%) discount rate), whereupon
Tenant shall be obligated to pay the same to Landlord, together with all loss
or damage which Landlord may sustain by reason of such termination and
re-entry, or (b) Landlord may relet all or any part of the Building for a term
different from that which would otherwise have constituted the balance of the
Term of this Lease, and for rent and on terms and conditions different from
those contained herein, whereupon Tenant shall immediately be obligated to pay
to Landlord, as liquidated damages, the difference between the rent provided
for herein and that provided for in any lease covering a subsequent reletting
of the Building, for the period which would otherwise have constituted the
balance of the Term of this Lease, together with all of Landlord's costs and
expenses for preparing the Building for reletting, including all repairs,
broker's and attorney's fees, and all loss or damage which Landlord may sustain
by reason of such termination, re-entry and reletting, it being expressly
understood and agreed that the liabilities and remedies specified in clauses
(a) and (b) hereof shall survive the termination of this Lease. Notwithstanding
the foregoing, Landlord shall use all reasonable efforts to mitigate its
damages.
G. Landlord may xxx for injunctive relief or to recover damages for any
loss resulting from the breach.
16.03 -- Non-Waiver of Defaults. The failure or delay by Landlord or
Tenant to enforce or exercise, at any time, any of the rights or remedies or
other provisions of this Lease shall not be construed to be a waiver thereof,
nor affect the validity of any part of this Lease or the right of Landlord or
Tenant thereafter to enforce each and every such right or remedy or other
provision. No waiver of any default and breach of the lease shall be held to be
a waiver of any other default and breach. The receipt by Landlord of less than
the full rent due shall not be construed to be other than a payment on account
of rent then due, nor shall any statement on Tenants check or any letter
accompanying Tenant's check be deemed an accord and satisfaction, and Landlord
may accept such payment without prejudice to Landlord's right to recover the
balance of the rent due or to pursue any other remedies provided in this Lease.
No act or omission by Landlord or its employees or agents during the Term of
this Lease shall be deemed an acceptance of a surrender of the Building, and no
agreement to accept such a surrender shall be valid unless in writing and
signed by Landlord.
XVII -- NOTICE AND PLACE OF PAYMENT
17.01 -- Notice. Any notice or other communication required or permitted
to be given to a party under this Lease shall be in writing, unless otherwise
specified in this Lease, and shall be given by one of the following methods to
such party at the address set forth in item H of the Basic Lease Provisions:
(1) it may be sent by registered or certified United States mail, return
receipt requested and postage prepaid, or (2) it may be sent by ordinary United
States mail or delivered in person or by courier, telecopier, telex, telegram,
interconnected computers, or any other means for transmitting a written
communication. Any such notice shall be deemed to have been given as follows:
(i) when sent by registered or certified United States mail, as of the date of
delivery shown on the receipt, or if not determinable, as of the second
calendar day after it was mailed, and (ii) when delivered by any other means,
upon receipt. Either party may change its address for notice by giving written
notice thereof to the other party.
17.02 -- Place of Payment. All rent and other payments required to be
made by Tenant to Landlord shall be delivered or mailed to Landlord at the
address specified in Item H of the Basic Lease Provisions, or any other address
Landlord may specify from time to time by written notice given to Tenant.
XVIII -- HAZARDOUS SUBSTANCES
Tenant shall not cause or permit any Hazardous Substance (as hereinafter
defined) to be used, stored, generated or disposed of on or in the Building by
Tenant, Tenant's agents, employees, contractors, invitees or sublessees,
without first obtaining Landlord's written consent. If Hazardous Substances are
used, stored, generated or disposed of on or in the Building, or if the
Building becomes contaminated in any manner for which Tenant is legally liable,
Tenant shall indemnify and hold harmless Landlord from any and all claims,
damages, fines, judgments, penalties, costs, liabilities or losses (including,
without limitation, a decrease in value of the Building, damages caused by loss
or restriction of rentable or usable space, or any damages caused by adverse
impact on marketing of the space, and any and all sums paid for settlement of
claims, attorneys' fees, consultant and expert fees) arising during or after
the Term of the Lease, and arising as a result of that contamination by Tenant.
This indemnification includes, without limitation, any and all costs incurred
because of any investigation of the site or any cleanup, removal or restoration
mandated by a federal, state or local agency or political subdivision. Without
limitation of the foregoing, if Tenant causes or permits the presence of any
Hazardous Substance on or in the Building and that results in contamination,
Tenant shall promptly, at its sole expense, take any and all necessary actions
to return the Building to the condition existing prior to the presence of any
such Hazardous Substance on or in the Building. Tenant shall first obtain
Landlord's approval for any such remedial action. As used herein, "Hazardous
Substance" means any substance that is toxic, ignitable, reactive or corrosive
and that is regulated by any local government, the State of Ohio, or the United
States Government. "Hazardous Substance" includes any and all materials or
substances that are defined as "hazardous waste", "extremely hazardous waste",
or a "hazardous substance" pursuant to state, federal or local government law.
"Hazardous Substance" includes, but is not restricted to, asbestos,
polychlorinated biphenyls, petroleum, petroleum products, and petroleum wastes.
XIX -- MISCELLANEOUS GENERAL PROVISIONS
19.01 -- Relocation of Tenant. Landlord shall have the right, at its
option upon giving to Tenant one hundred twenty (120) days prior written
notice, to relocate Tenant by substituting for the Building described herein
another building located within the Campus and containing at least as much area
as that contained in the Building. Such substituted space shall be improved by
Landlord, at its expense, with Tenant finish improvements comparable in
quantity and quality to those made in the Building. In the event, Landlord
exercises this relocation option, then Landlord shall pay all reasonable
expenses incurred by Tenant in connection with such relocation, including the
moving, door lettering, telephone relocation and other reasonable expenses. In
connection with such relocation, Landlord and Tenant shall amend this Lease as
necessary, including to change the description of the demised premises.
19.02 -- Termination of the Services Agreement. Pursuant to the terms of
this Lease, Tenant will pay real and personal property taxes, insurance costs
and property management costs relating to the Building in accordance with the
terms of the Services Agreement. In the event that either the Services
Agreement is terminated, regardless of the reason for such termination, or if
Tenant for any reason ceases to be a party to the Services Agreement, Landlord
and Tenant shall endeavor in good faith to negotiate a definitive amendment to
this Lease setting forth the manner in which those services relating to the
Building and previously covered under the Services Agreement will be provided
and the method of payment therefor. If Landlord and Tenant are unable to reach
an agreement hereunder within 90 days of the date upon which the Services
Agreement was either terminated or upon which Tenant ceased to be a party, then
Landlord shall have the right and option to terminate this Lease upon thirty
(30) days prior written notice to Tenant.
19.03 -- Definition of Rent. Any amounts of money to be paid by Tenant
to Landlord pursuant to the provisions of this Lease, whether or not such
payments are denominated "Base Rent" or "Additional Rent" and whether or not
they are to be periodic or recurring, shall be deemed "Base Rent" or
"Additional Rent" for purposes of this Lease; and any failure to pay any of the
same, as provided in Section 16.01 hereof, shall entitle Landlord to exercise
all of the rights and remedies afforded hereby or by law for the collection and
enforcement of Tenant's obligation to pay rent. Tenant's obligation to pay any
such Base Rent or Additional Rent, pursuant to the provisions of this Lease,
shall survive the expiration or other termination of this Lease and the
surrender of possession of the Building after any holdover period.
19.04 -- Estoppel Certificate. Tenant agrees, at any time and from time
to time, upon not less than ten (10) calendar days prior written notice by
Landlord, to execute, acknowledge and deliver to Landlord a statement in
writing (i) certifying that this Lease is unmodified and in full force and
effect (or, if there have been modifications, stating such modifications); (ii)
stating the dates to which the rent and any other charges hereunder have been
paid by Tenant; (iii) stating whether or not, to the best knowledge of Tenant,
Landlord is in default in the performance of any covenant, agreement or
condition contained in this Lease, and, if so, specifying each such default of
which Tenant may have knowledge; and (iv) stating the address to which notices
to Tenant should be sent. Any such statement delivered pursuant hereto may be
relied upon by any owner of the Building or the Campus, any prospective
purchaser of the Building, any mortgagee or prospective mortgagee of the
Building, or any prospective assignee of any such mortgagee.
19.05 -- Governing Law. This Lease shall be construed and enforced in
accordance with the laws of the State of Ohio.
19.06 -- Successors and Assigns. This Lease and the respective rights
and obligations of the parties hereto shall inure to the benefit of and be
binding upon the successors and assigns of the parties hereto, as well as the
parties themselves; provided, however, that Landlord, its successors and
assigns, shall be obligated to perform Landlord's covenants under this Lease
only during and in respect to their successive periods of ownership during the
Term of this Lease.
19.07 -- Severability of Invalid Provisions. If any provision of this
Lease shall be held to be invalid, void or unenforceable, the remaining
provisions hereof shall not be affected or impaired, and such remaining
provisions shall remain in full force and effect.
19.08 -- Certain Words, Gender and Headings. As used in this Lease, the
word "person" shall mean and include, where appropriate, an individual,
corporation, partnership or other entity; the plural shall be substituted for
the singular and the singular for the plural, where appropriate; and words of
any gender shall include any other gender. The topical headings of the several
paragraphs of this Lease are inserted only as a matter of convenience and
reference, and do not affect, define, limit or describe the scope or intent of
this Lease.
19.09 -- Quiet Enjoyment. So long as Tenant pays the prescribed rent and
performs or observes all of the terms, conditions, covenants and obligations of
this Lease required to be performed or observed by it hereunder, Tenant shall,
at all times during the Term hereof, have the peaceable and quiet enjoyment,
possession, occupancy and use of the Building, without any interference from
Landlord or any person or persons claiming the Building, by, through or under
Landlord.
19.10 -- Net Lease. It is the purpose and intent of Landlord and Tenant
that the rent shall be absolutely net to Landlord, so that this Lease shall
yield, net, to Landlord, the rent specified in Item E of the Basic Lease
Provision and the Additional Rent specified in Section 4.03, in each month
during the Term of this Lease, and that all costs, expenses and obligations of
every kind and nature whatsoever relating to the Building and the Common Areas,
which may arise or become due during or out of the Term of this Lease, shall be
paid by Tenant, except for such obligations and charges as have otherwise
expressly been assumed by Landlord in accordance with the terms and conditions
of this Lease.
19.11 -- Complete Agreement; Amendments. This Lease, including all
Exhibits, Riders and Addenda, constitutes the entire agreement between the
parties hereto; it supersedes all previous understandings and agreements
between the parties, if any, and no oral or implied representation or
understandings shall vary its terms; and it may not be amended, except by a
written instrument executed by both parties hereto.
19.12 -- Reasonable Modifications. Tenant will consent to such
reasonable modifications of this Lease as Landlord may hereafter find it
necessary to make in order to obtain mortgage financing, provided that such
modifications (a) do not change the rental to be paid hereunder or the length
of the Term of the Lease; and (b) do not impose obligations upon Tenant which
are substantially or practically more burdensome to it than the obligations
contained herein.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
Witnesses as to Landlord: LANDLORD:
Distribution Land Corp.,
a Delaware corporation
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------- -------------------------------
Print Name: XXXX X. XXXXXXX Xxxxxx X. Xxxxxxxxxxx,
Vice President - Real Estate
/s/ Xxxx X. Xxxxxx
----------------------------
Print Name: XXXX X. XXXXXX
ATTESTED BY:
/s/ Xxxx X. Xxxxxxx By: /s/ C. Xxxxx Xxxx
---------------------------- -------------------------------
Print Name: XXXX X. XXXXXXX C. Xxxxx Xxxx
Assistant Secretary
/s/ Xxxx X. Xxxxxx
----------------------------
Print Name: XXXX X. XXXXXX
Witnesses, as to Tenant: TENANT:
Limited Too, Inc., a
Delaware corporation
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------- -------------------------------
Print Name: XXXX X. XXXXXXX Xxxxxx X. Xxxxxxxxxxx,
Vice President - Real Estate
/s/ Xxxx X. Xxxxxx
----------------------------
Print Name: XXXX X. XXXXXX
ATTESTED BY:
/s/ Xxxx X. Xxxxxxx By: /s/ C. Xxxxx Xxxx
---------------------------- -------------------------------
Print Name: XXXX X. XXXXXXX C. Xxxxx Xxxx
Assistant Secretary
/s/ Xxxx X. Xxxxxx
----------------------------
Print Name: XXXX X. XXXXXX
STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this 12th day of
September, 1995, by Xxxxxx X. Xxxxxxxxxxx and C. Xxxxx Xxxx, Vice President -
Real Estate and Assistant Secretary, respectively, of Distribution Land Corp.,
a Delaware corporation, on behalf of the corporation.
/s/ Xxxx X. Xxxxxx
------------------------
Notary Public
[Notary Seal and Stamp]
STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this 12th day of
September, 1995, by Xxxxxx X. Xxxxxxxxxxx and C. Xxxxx Xxxx, Vice President-
Real Estate and Assistant Secretary, respectively, of Limited Too, Inc., a
Delaware corporation, on behalf of the corporation.
/s/ Xxxx X. Xxxxxx
------------------------
Notary Public
[Notary Seal and Stamp]
This Instrument Prepared By:
Vorys, Xxxxx, Xxxxxxx and Xxxxx
00 Xxxx Xxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
