EXHIBIT 10.57
LEASE
This lease is made February 7, 2001 between 1815 LLC ("Landlord"),
whose address is c/o Tri-Y, Inc., 0000 X. Xxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000,
and ADS ALLIANCE DATA SYSTEMS, INC. ("Tenant"), whose address is 000 XxxxXxxxxx
Xxxxx, Xxxxxxx, XX 00000 who hereby agree as follows:
Section 1 LEASE OF PREMISES. On the terms and subject to the conditions
set forth in this lease, Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the real property situated in Muskingum County, Ohio and
more fully described on the attached Exhibit A, including the 5,400 square foot
building (the "Building") and all other improvements thereon and appurtenances
thereto (the "Premises"), subject only to those matters listed on the attached
Exhibit A (the "Permitted Exceptions"). Landlord shall provide Tenant with at
least 50 paved parking spaces adjacent to the Premises as shown on Exhibit B
attached hereto. Such parking spaces shall be designated for the Tenant's sole
use. Landlord shall also provide Tenant with unrestricted driveway access from
the main road to the parking area. Tenant shall maintain such parking lot and
driveway at its expense, including without limitation snow removal.
Section 2 TERM. The initial term of this lease (the "Initial Term")
shall be a period of five (5) years commencing on the earlier of the following
dates (the "Commencement Date"): (a) the date which is 15 days after the
"Improvements" (as defined in Section9, below) have been substantially
completed, or (b) the date on which Tenant occupies and commences its business
operations in substantially the entire Premises, and ending on the date
preceding the fifth anniversary of the Commencement Date, both dates inclusive,
unless terminated earlier as provided herein. Tenant may at its option terminate
this lease early on the second or third anniversary of the Commencement Date, if
(x) Tenant gives Landlord at least ninety (90) days prior written notice
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of its election to terminate early, and (y) pays Landlord a sum of $75,000, such
sum shall be paid by Tenant on or before the termination date of the lease.
Section 3 RENTAL. During the Initial Term of this lease, Tenant shall
pay Landlord rent for the Premises in the amount of $13 per square foot, which
will be seventy thousand two hundred dollars ($70,200) per annum, payable in
twelve (12) equal monthly installments of five thousand eight hundred fifty
dollars ($5,850.00) each, due and payable in advance on the first day of each
calendar month during the term of this lease. For all purposes under this lease,
a "lease year" shall be the 12-month period from the Commencement Date through
the date immediately preceding the anniversary of the Commencement Date and each
successive 12-month period thereafter. It is the purpose and intent of the
Landlord and Tenant that, except for Landlord's obligations under this lease and
as otherwise provided in this lease, the rent shall be net to Landlord so that
this lease shall yield, net to Landlord, the rent specified in Section3 and
Section4 hereof in each year during the term of this lease and that all costs,
expenses and obligations normally paid for by the Tenant in a triple net lease
which becomes due during the term of this lease shall be paid by Tenant.
Unless otherwise provided under this lease, all payments to be made by
Tenant to Landlord under this lease shall be made by normal business methods and
shall be paid to Landlord at Landlord's address for receiving notices under
Section 20.
Landlord represents and warrants to Tenant that the Premises are free
and clear of all mortgages, deeds of trust, liens, or encumbrances, except for
the Permitted Exceptions, which include the first mortgage to be given to Bank
First which will secure a promissory note in the original principal amount not
to exceed $410,000 and that the First Mortgage is current to date and Landlord
is not otherwise in default thereunder. If Landlord defaults in making any
payment
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due on the First Mortgage, or on any other mortgage, deed or trust, security
interest, lien, or other claim which now or hereafter may encumber the Premises,
Tenant may, after five (5) days prior notice to Landlord (if permitted by the
mortgagee's non-disturbance agreement), make any such payments directly out of
the rent payments due Landlord under this lease. All such payments by Tenant
shall constitute a payment of rent to Landlord under this lease; provided that
nothing in this lease shall be construed as an assumption by Tenant of
Landlord's obligations under any such mortgage, security interest, lien, or
other claim.
Section 4 TENANT'S RENEWAL OPTIONS. Tenant shall have the options to
renew this lease for five (5) additional terms of two (2) years each (the
"Renewal Terms"). Each of Tenant's renewal options shall be exercisable by
Tenant's written notice to Landlord which states that Tenant thereby exercises
its renewal option under this Section 4 and shall be deemed exercised if Tenant
gives such a notice to Landlord: (a) at least 120 days prior to the end of the
Initial Term or the then current Renewal Term, of (b) if no more than 150 days
prior to the end of the Initial Term or the then current Renewal Term, Landlord
requests Tenant to notify Landlord if Tenant intends to renew, then Tenant shall
within 30 days after such written request from Landlord exercise or waive its
option to renew the Term. Any reference in this lease to the "term of this
lease" shall include the Renewal Term if Tenant exercises its renewal option
under this Section 4.
All terms and conditions of this lease which are applicable during the
Initial Term shall also be applicable during each Renewal Term, except that the
rent shall be adjusted to the amount set forth below.
RENEWAL TERM RENTAL PER SQUARE FOOT
First $13.25
Second $13.50
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Third $13.75
Fourth $14.00
Fifth $14.25
Section 5 TAXES AND ASSESSMENTS. Tenant shall pay or caused to be paid
when due (a) all taxes or charges now or hereafter imposed with respect to any
business conducted on the Premises or any fixtures or personal property
contained on the Premises or used in connection with Tenant's business on the
Premises, and (b) all installments of real estate taxes and assessments on the
Premises which become due and payable with respect to the term of this lease
(prorated to the Commencement Date and the termination date of this lease).
Section 6 UTILITIES. Tenant shall pay or cause to be paid all charges
for utility services used or consumed on the Premises during the term of this
lease, including without limitation water, sewer, gas, electricity, and
telephone. Landlord represents to Tenant that all such utility services are
currently available to the Premises through public rights-of-way or valid
easements in the following current capacities:
(a) Electric 600 Amp 120/208 Volt
(b) Water 6 inch main - 1 1/2" to Building
(c) Sewer 4 inch main
(d) Natural Gas Sufficient for Building
(e) Telephone Make 4" Conduit available for Vendor
from new power pole to building
Section 7 INSURANCE. Tenant shall maintain or cause to be maintained in
force, at all times during the term of this lease:
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(a) Comprehensive public liability insurance with respect to
the Premises having limits not less than Three Million Dollars ($3,000,000.00)
for bodily injury to any one person, Three Million Dollars ($3,000,000.00) for
bodily injuries arising out of one occurrence, and Two Hundred Fifty Thousand
Dollars ($250,000.00) for property damage. If coverage is not available in the
exact amounts stated, the coverage in the nearest higher amount available shall
be obtained;
(b) Fire and extended coverage insurance on the Premises in an
amount not less than then the current full insurable value of the Premises;
(c) Rent interruption insurance for the sole benefit of
Landlord in an amount not less than the annual rental then in effect; and
(d) Fire and extended coverage insurance with respect to all
Tenant's personal property within the Premises. Each insurance policy furnished
by Tenant under this Section 7 shall be issued by a reputable insurance company
licensed to do business in Ohio and reasonably approved by Landlord; and shall
name Tenant, Landlord, and any persons reasonably designated by Landlord as
insured parties therein; and shall provide for written notice to Landlord and
its designees at least ten (10) days prior to any cancellation, expiration
without renewal, or modification of such policy. Upon request, Tenant shall
furnish Landlord with certificates of coverage and evidence of payment of
premiums thereon from time to time. Tenant does hereby waive any and all rights
of recovery against Landlord for any insurable loss arising out of or occurring
to any of Tenant's property situated on the Premises, and to the extent
permitted by the policy providing such insurance, hereby agrees not to assign to
any insurer any right or cause of action for any insured damage to said Premises
which may occur during the term of this lease, provided that this waiver shall
not limit Tenant's rights to insurance proceeds under Section 12 below.
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Landlord does hereby waive any and all rights of recovery against Tenant for
loss arising out of or occurring to the Premises or any of Landlord's property
therein which loss is covered by insurance maintained under this lease, and to
the extent permitted by the policy providing such insurance, agrees not to
assign to any insurer any right or cause of action for insured damage to the
Premises which may occur during the term of this lease.
Section 8 USE OF PREMISES. Tenant shall use the Premises during the
term of this lease for any and all purposes that are from time to time permitted
by applicable laws as applicable to Tenant's regular lines of business,
including without limitation the following: customer service center, collections
center, data processing, payment and remittance processing, and other general
office uses. Tenant shall use the Premises only in a lawful, careful, safe, and
proper manner and shall not commit or permit any waste of or on the Premises.
Tenant will not use, store, or dispose of any Hazardous Substances (as
hereinafter defined) on the Premises except for immaterial amounts that are
exempt from or do not give rise to any violation of the Environmental Laws (as
hereinafter defined) and except for the handling, use or storage of Hazardous
Substances in the normal course of Tenant's business conducted at the Premises
in accordance with the terms of this lease and in compliance with all
Environmental Laws. As used herein, "Hazardous Substances" shall mean and
include all hazardous substances, toxic substances, wastes, materials,
compounds, pollutants and contaminates including, without limitation, asbestos,
polychlorinated biphenyls and petroleum products that are included under or
regulated by the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, 42 U.S.C. 9601, et. seq., the Toxic Substances
Control Act, 15 U.S.C. 2601 et. seq., the Resource Conservation and Recovery
Act, 42 U.S.C. 6901, et. seq., the Water Quality Act of 1987, 33 U.S.C. 1251 et.
seq., and the Clean Air Act, 42 U.S.C. 7041, et. seq., any state and local
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statute, ordinance, law, code, rule, regulation or order regulating or imposing
liability (including strict liability) or standards of conduct regarding
Hazardous Substance (herein the "Environmental Laws"). Tenant shall indemnify
Landlord and hold Landlord harmless from and against any loss, damage, cost,
expense or liability (including strict liability) directly or indirectly arising
out of or attributable to the generation, storage, release, threatened release,
discharge or disposal during the term of this lease of Hazardous Substance on,
under, or from the Premises by Tenant or any employee, agents, contractors or
subcontractors of Tenant or by third persons occupying or present on the
Premises, under the direction or control of Tenant, including, without
limitation: (a) those damages or expenses arising under the Environmental Laws;
(b) the cost of any required or necessary repair, cleanup or detoxification of
the Premises, including the soil and ground water thereof, and the preparation
and implementation of any closure, remedial or other required plans; (c)
quantifiable damage to any natural resources; and (d) all reasonable costs and
expenses incurred by Landlord in connection with clauses (a), (b), and (c)
including, but not limited to reasonable attorney's fees. Tenant's obligations
shall survive the expiration or earlier termination of the term of this lease
for a period of one year after such expiration or termination.
Landlord (i) represents an warrants to Tenant that on the date of this
lease, the Premises, including all areas under and adjacent to the Premises, are
free from all Hazardous Substances and in compliance with all Environmental
Laws, and (ii) agrees to indemnify Tenant and hold Tenant harmless from and
against any loss, damage, cost (including strict liability) directly or
indirectly arising out of or attributable to the generation, storage, release,
threatened release, discharge or disposal prior to the term of this lease, or
the existence on the date of this lease, of Hazardous Substances on, under,
about, or from the Premises (whether caused by Landlord or
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any employee, agents, contractors or subcontractors of Landlord or by third
persons occupying or present on the Premises), including without limitation: (a)
those costs, penalties, damages or expenses arising under the Environmental
Laws; (b) the cost of any required or necessary investigation, repair, cleanup
or detoxification of the Premises, including the soil and ground water thereof,
and the preparation and implementation of any closure, removal, remedial or
other required plan or study; (c) damage to any natural resources; and (d) all
reasonable costs and expenses incurred by Tenant in connection with clauses (a),
(b), and (c) including, but not limited to reasonable attorney's fees.
Landlord's obligations shall survive the expiration or earlier termination of
the term of this lease for a period of one year after such expiration or
termination.
Section 9 IMPROVEMENTS. Landlord and Tenant have agreed upon a
construction plan which is attached hereto as Exhibit B.
Section 10 MAINTENANCE AND REPAIRS. Subject to Landlord's obligations
under the next paragraph of this section, Tenant shall, at Tenant's expense,
perform all maintenance to the interior, non-structural features of the
Premises, including without limitation the interior floors, walls, ceilings,
doors, windows; all heating, ventilation and air-conditioning (HVAC);
electrical; plumbing; lighting (including bulb replacement); and other systems,
fixtures, and equipment therein, to maintain the Premises in good order and
condition of repair and safety during the term of this lease, ordinary wear and
tear and damage by casualty excepted.
Except in instances covered by Section 12 or Section 13, which will be
governed by such sections, Landlord shall, at its expense, maintain the roof,
exterior walls, foundation, subfloors, common driveways and structure of the
Building in good order and condition of repair and safety. If Landlord fails to
perform or commence the performance of (and thereafter diligently prosecute
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them to completion) the maintenance or repair of such items shall commence
within 15 days and be completed in a reasonable time after receipt of notice of
the need thereof from Tenant, Tenant may, at its option and upon prior written
notice to Landlord, perform such maintenance or repair obligations and the
amount of all costs and expenses incurred by Tenant shall be paid to Tenant upon
demand, or at Tenant's option Tenant may offset such amount against future rent
obligations of Tenant; provided that nothing in this lease shall be construed as
an assumption by Tenant of Landlord's obligation to perform such obligations.
This right shall be in addition to, and not in limitation of, any other rights
which Tenant may have under this lease for Landlord's failure to perform such
obligations.
Section 11 ALTERATIONS, SIGNS, MECHANICS' LIENS. Tenant shall have the
right from time to time to make changes, alterations, or additions in or to the
Premises or to restore, remove, replace, or reconstruct all or any part of the
Premises (hereinafter collectively, called an "alteration") provided that: (a)
no such alteration shall reduce or otherwise impair the value of the Premises;
(b) all costs relating to any such alteration shall be paid by Tenant; (c) if
such alteration is structural in nature, pierces the roof or any exterior wall
of the Building, or is estimated to cost more than Twenty-Five Thousand Dollars
($25,000), then Landlord shall have given its prior consent to the alterations
being made, which consent will not be unreasonably withheld; and (d) any such
alteration shall be made in compliance with all requirements of any governmental
authority having jurisdiction.
Tenant shall have the right from time to time attach, install, and
furnish to an in the Premises (including without limitation the land, building,
and other improvements) fixtures, signs, equipment, and personal property
relating to Tenant's use of the Premises. Landlord shall have no right, title,
or interest to or in any such fixtures, signs, equipment, and personal property,
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and Tenant shall remove them at any time at or prior to the end or sooner
termination of the term of this lease. Tenant shall pay the cost of all repairs
of damage caused by such removal. Tenant shall have the right to install, at its
expense, a monument sign near the main access road to the Building to be
approved by Landlord and meet Local Building Codes.
Section 12 RESTORATION. If all or any part of the Premises is damaged
or destroyed at any time during the term of this lease and the cost to repair
such damage or destruction is less than 50% of the Premises as reasonably
estimated by Landlord and agreed by Tenant, then Tenant shall repair or restore
the Premises to their previous or better condition with all reasonable speed,
and for this purpose Landlord shall have the right to use all insurance proceeds
payable in connection with such damage or destruction, and if all such insurance
proceeds are not made available to Tenant for this purpose, Tenant shall have
the right to terminate this lease. If such destruction or damage occurs during
the first sixty (60) months of the term of this lease, Tenant shall have the
option to terminate this lease and any further liability hereunder in which case
all insurance proceeds shall be paid to the Landlord: If such destruction or
damage occurs after the first sixty (60) months of the term of this lease and
such damage or destruction is greater than 50% of the Premises, Landlord and
Tenant shall each then have the option to terminate this lease and any further
liability hereunder in which case, all insurance proceeds shall be paid to
Landlord.
If neither Tenant nor Landlord elects to exercise an applicable option
to terminate this lease by notice to the other within sixty (60) days after
their agreement upon the estimated cost of the repair, then Tenant shall proceed
to repair or restore the Premises to their previous or better condition with all
reasonable speed.
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In the event that any damage or destruction to the Premises occurs
which does not result in a termination of this lease, the rental payable by
Tenant shall be abated during the period of any restoration or repair of the
Premises, in such proportion that the floor area of the Building of which the
Tenant is deprived as a result of such damage or destruction or the repair or
restoration necessitated thereby bears to the total floor area of the Building.
If all or any part of the Premises is damaged or destroyed, Tenant
promptly shall notify Landlord thereof.
Section 13 CONDEMNATION. If all or materially all of the Premises or
the Building is taken in appropriation proceedings or by right of eminent
domain, then this lease shall terminate as of the date Tenant is deprived of
physical possession thereof and the rent and other charges under this lease to
be paid by Tenant shall be paid to that date. For purposes of this lease,
"materially all of the Premises or the Building" shall be considered as having
been taken if the portion which is taken would leave remaining a portion which
(due either to the area so taken or the location of the parts taken) would not
under then existing economic conditions, zoning laws, building regulations or
Tenant's current or anticipated needs readily accommodate improvements or a
nature similar to those improvements comprising the Premises at the time of such
taking of size sufficient, together with improvements not taken, to permit
Tenant in Tenant's reasonable determination to operate its business in a
reasonably efficient manner.
If less than materially all of the Premises or the Building is taken in
appropriation proceedings or by right of eminent domain, then this lease shall
not terminate and all damages and compensation awarded for such taking shall be
reinvested in to the Premises or the Building to the extent necessary to restore
the Premises and the Building to the same or better condition as the same were
in immediately prior to such taking, and the balance, if any, shall be payable
to
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Landlord. In that event, an equitable amount of the rent otherwise payable under
this lease shall be abated until the Premises are so restored, considering all
relevant factors, including, but not limited to, the limitations to Tenant's use
of the Premises resulting from the taking and the amount of the damages and
compensation paid to Landlord which is not reinvested in the Premises or the
Building. If this lease is terminated upon any such taking as described in the
preceding paragraph, then all compensation or damages awarded for such taking
shall belong to the Landlord.
For the purposes in this Section 13, any negotiated sale to a public or
quasi-public authority under threat of condemnation shall be deemed to
constitute a taking by such public or quasi-public authority under the power of
eminent domain. Tenant shall have the right to participate with Landlord on an
equal basis in the negotiations with any public or quasi-public authority.
Section 14 MORTGAGE BY LANDLORD. Subject to the last sentence of this
Section14, this lease and Tenant's rights under this lease shall be subject and
subordinate to the First Mortgage (as defined in Section3) and to any subsequent
first mortgage granted by Landlord upon the Premises either before or after the
date of this lease and delivered as security for any bona fide loan made to
Landlord. Tenant shall execute, acknowledge, or verify and deliver any and all
instruments that may be reasonably requested by such mortgagee from time to time
to permit or expedite disbursement to Landlord or such other person of the
proceeds of such mortgage loan; provided that Tenant shall have no liability
whatsoever with respect to any such mortgage loan. Prior to the date of this
lease, Landlord has procured from the holder of the First Mortgage, and Landlord
shall procure from any future mortgagee of any mortgage on the Premises, a
non-disturbance agreement providing, in form and content satisfactory to Tenant,
that Tenant's rights under this lease shall not be disturbed by any such
mortgagee or any purchaser at foreclosure in the event of a default
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by Landlord under such mortgage or otherwise so long as Tenant is in compliance
with the terms of this lease.
Section 15 DEFAULT.
(a) TENANT DEFAULTS. Each of the following shall be deemed an
event of default by Tenant under this lease:
(i) Failure by Tenant to make any payment of rent
to Landlord when due and failure to cure such nonpayment
within ten (10) days after Landlord gives Tenant to do so;
(ii) Failure by Tenant to make any other payment or
perform or observe any other obligation or condition to be
performed or observed by Tenant under this lease within thirty
(30) days after Landlord gives Tenant notice to do so or, if
because of the nature of such default it cannot reasonable be
corrected within such thirty (30) day period, failure by
Tenant to commence correction within such thirty (30) day
period and thereafter to expeditiously and continuously
prosecute the correction to completion;
(iii) Tenant's interest created by this lease is
taken in execution or other process of law; or
(iv) Tenant or any entity which has guaranteed the
obligations of Tenant under the lease (a) is insolvent, is
adjudicated bankrupt, or seeks any relief as a debtor by any
bankruptcy proceeding pursuant to the provisions of any state
or federal law; (b) has any receiver or trustee of its
property appointed by reason of insolvency or inability to pay
debts; or (c) makes or permits an assignment of its property
for the benefit of creditors.
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Immediately upon the occurrence of an event of default or at any time
thereafter, unless such default has been cured by Tenant or waived by Landlord,
Landlord may at its option elect either to: (A) continue this lease in full
force and effect notwithstanding the occurrence of such event of default, or (B)
terminate this lease, in which event all rights and interests of Tenant in and
to the Premises and this lease shall terminate and Landlord shall be entitled
immediately to re-enter and re-lease the Premises at the best possible rent
obtainable, but Tenant shall remain liable for the amount by which the rent
payable by Tenant under this lease exceeds the rent received upon such
re-letting, if any. Any and all monthly deficiencies in the rent so payable by
Tenant shall be paid monthly on the date required for payment of rent under
Section3. The remedies provided herein shall be without prejudice to any other
remedies which Landlord may have for the recovery of the arrears of rent or for
damages for the Tenant's breach of this lease.
(b) LANDLORD DEFAULTS. Failure by Landlord to make any payment
or perform or observe any other obligation or condition to be performed or
observed by Landlord under this lease within thirty (30) days after Tenant gives
Landlord notice to do so (or such shorter time as may be appropriate, such as
for a necessary repair under Section10 above) or, if because of the nature of
such default it cannot reasonably be corrected within such thirty (30) day (or
shorter) period, failure by Landlord to commence correction within such thirty
(30) day or shorter period and thereafter to expeditiously and continuously
prosecute the correction to completion shall be deemed an event of default by
Landlord under this lease.
Immediately upon the occurrence of an event of default or at any time
thereafter, unless such default has been cured by Landlord or waived by Tenant,
Tenant may at its option elect either to: (A) continue this lease in full force
and effect notwithstanding the occurrence of such event of default, or (B)
terminate this lease, in which event Tenant shall be released from all of
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its obligations under this lease. The remedies provided herein shall be without
prejudice to any other remedies which Tenant may have for damages for the
Landlord's breach of this lease.
(c) RIGHT TO CURE DEFAULTS. If either party fails to perform
and observe all obligations and conditions to be performed and observed by it
under this lease within the time periods set forth in (a) and (b) above, then
the non-defaulting party may, but shall not be obligated to, cause the
performance and observance of the obligation or condition to which the default
relates, and any and all costs and expenses incurred by the non-defaulting party
in connection therewith, including without limitation reasonable attorneys'
fees, shall thereupon be due and payable immediately from the defaulting party,
with interest thereon at a rate equal to one percent (1%) per month (12% per
annum) from the time such costs and expenses were paid until reimbursed or, in
Tenant's case, until Tenant offsets any such amount against its rent obligation
under this lease.
Section 16 SURRENDER AND HOLDING OVER. Tenant shall deliver and
surrender possession of the Premises to landlord upon the expiration of this
lease or its earlier termination for any reason, in substantially as good
condition and repair as the same shall be on the Commencement Date, or as the
same may be put by Landlord or Tenant, ordinary wear and tear and damage from
casualty excepted. If Tenant, or any party claiming under Tenant, remains in
possession of the Premises, or any part thereof, after expiration or any
termination of this lease, Tenant or such party claiming under Tenant shall be
deemed a Tenant from month-to-month on the same terms and conditions set forth
in this lease, subject to termination by either party upon thirty (30) days'
prior written notice to the other party.
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Section 17 MEMORANDUM OF LEASE. Upon request of either party, this
lease or a memorandum of this lease shall be recorded for the purpose of giving
public notice of the rights and obligations of Landlord and Tenant under this
lease.
Section 18 ASSIGNMENT AND SUBLEASE. Tenant shall have the right, from
time to time, to assign its rights under this lease or sublet all or any portion
of the Premises to any person or organization selected by Tenant, upon such
terms and conditions as may be agreed upon between Tenant and such assignee or
sublessee, provided that: (a) Landlord shall have given its consent to such
assignment or sublease, which consent shall not be unreasonably withheld or
delayed: provided that Landlord's consent shall not be required for any
assignment or sublease by Tenant to Tenant's parent company, subsidiary or any
entity of which Tenant or Tenant's parent company, subsidiary or any entity of
which Tenant or Tenant's parent company owns more than fifty percent (50%) of
the voting interests thereof: (b) no such assignment or sublease shall excuse or
otherwise affect any liability of Tenant under this lease, and Tenant shall
remain fully liable to perform and observe all obligations and conditions to be
performed and observed by Tenant under this lease; and (c) the term of any such
sublease shall not exceed the then remaining term of this lease.
Landlord may assign its rights and obligations under this lease at any
time during the term of this lease, and after any such assignment shall not be
liable for any obligations of Landlord under this lease, provided that any such
assignment shall be subject to this lease and all of Tenant's rights hereunder
and provided further that Landlord's assignee assumes in writing all of
Landlord's obligations under this lease. Tenant shall attorn to any assignee of
Landlord which so assumes Landlord's obligations.
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Section 19 NON-WAIVER. No failure by either party to enforce its rights
or seek its remedies upon any default shall affect or constitute a waiver of
such party's right to enforce that right, or seek that remedy with respect to
that default or any prior or subsequent default.
Section 20 NOTICES. Any notice, consent, or other communication
required or desired to be given to either party under this lease shall be in
writing and shall be deemed given when delivered personally to that party's
address set forth at the beginning of this lease (in the case of Tenant a copy
of which shall be sent to ADS Alliance Data Systems, Attention: Xxxx Xxxxx,
00000 Xxxxxxxxx Xxxxxxx, Xxxxxx, XX 75252) or when deposited in the United
States mail, first class, postage prepaid, addressed to that party at that same
address or, in either case, at such other address as that party may theretofore
have designated in notice to the party giving notice.
Section 21 ESTOPPEL CERTIFICATE. Either party to this lease shall from
time to time during the term of this lease, promptly after request of the other
party, execute and deliver to the other party a statement certifying that this
lease is in full force and effect, the date through which the rentals and other
charges hereunder have been paid, and any other factual matter reasonably
requested by the other party.
Section 22 ADDITIONAL WARRANTIES. Landlord represents and warrants to
Tenant that: (a) Landlord has good and marketable fee simple title to the
Premises except for the permitted exception in Attachment A; (b) Landlord has
unrestricted capacity, power, and right to enter into and perform this lease in
accordance with its provisions without joinder or consent of anyone else; (c)
the Premises are not situated within the one-hundred (100) year floodplain; (d)
Tenant shall be entitled to lawfully, peaceably, and quietly hold, occupy, and
enjoy the Premises during the term of this lease without hindrance or
molestation from Landlord or any person or organization claiming any legal or
equitable interest or rights in or to the Premises; (e) the
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Building and all fixtures and systems therein are in good and operable condition
and were constructed in compliance with all applicable laws, ordinances, codes,
and regulations (including without limitation the Americans with Disabilities
Act); and (f) the Premises are zoned under a classification which permits
Tenant's intended use thereof without any license, permits, or variances, except
for any required occupancy permit which will be obtained upon completion of the
Improvements.
Section 23 SEVERABILITY. The intention of the parties to this lease is
to comply fully with all laws governing leases, and this lease shall be
construed consistently with all such laws to the extent possible. If and to the
extent that any court of competent jurisdiction is unable to so construe part or
all of any provision of this lease, and holds part or all of that provision to
be invalid, such invalidity shall not affect the balance of that provision or
the remaining provisions of this lease, which shall remain in full force and
effect.
Section 24 GOVERNING LAW. The Premises is located in the State of Ohio
and it is the intention of the parties to this lease that all questions
concerning the intention, validity, or meaning of this lease or relating to the
rights and obligations of the parties with respect to performance under this
lease shall be construed and resolved according to the laws of the State of
Ohio.
Section 25 NO THIRD PARTY BENEFIT. This lease is intended for the
exclusive benefit of the parties to this lease and their respective successors
and permitted assigns, and nothing contained in this lease shall be construed as
creating any right or benefit in or to any third party.
Section 26 CAPTIONS. The captions of the various sections of this lease
are not part of the context of this lease, but are only labels to assist in
locating those sections, and shall be ignored to construing this lease.
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Section 27 EXHIBITS. Each exhibit and addendum, if any, referred to in
this lease hereby is incorporated in this lease by reference. All obligations of
any party under any such exhibit or addendum shall be considered an obligation
under this lease.
Section 28 GENDERS AND NUMBERS. When permitted by the context, each
pronoun used in this lease includes the same pronoun in other genders or
numbers, and each noun used in this lease includes the same noun in other
numbers.
Section 29 COMPLETE AGREEMENT. This document (including each exhibit or
addendum, in any, referred to in this document) contains the entire agreement
between the parties and supersedes all prior or contemporaneous discussions,
negotiations, representations, or agreements relating to the subject matter of
this lease. No change to this lease shall be made or be binding on any party
unless made in writing and signed by each party to this lease.
Section 30 SUCCESSORS. This lease shall be binding upon, inure to the
benefit of, and be enforceable by and against the respective successors and
permitted assigns of each party to this lease.
Section 31 INDEMNIFICATION.
(a) Tenant, shall assume, pay and at all time indemnify,
protect and save Landlord harmless from any and all loss, liability, damage and
expense for injuries to person (including death) or property of others arising
or resulting from the use or occupancy by Tenant of the Premises or resulting
from any tortious or negligent act or default of Tenant, its employees, agents,
or invitees on, or in said Premises, together with all costs and expenses
(including reasonable legal fees) incurred with respect to any such claim,
demand or legal proceeding brought against Landlord
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(b) Landlord shall assume, pay and at all times indemnify,
protect and save Tenant harmless from any and all loss, liability, damage and
expense for injuries to person (including death) or property of others arising
or resulting from any tortious or negligent act or default of Landlord, its
employees or agents, together with all costs and expenses (including reasonable
legal fees) incurred with respect to any such claim, demand or legal proceeding
brought against Tenant.
Section 32 MUTUAL INDEMNIFICATION. Each party shall indemnify the other
party against any and all losses, damages, liabilities, or claims arising
directly or indirectly out of: (a) any failure of any representation or warranty
of such party to be correct and complete when made or any failure by such party
to fully perform and observe all obligations and conditions to be performed or
observed by such party under this lease, whether any such failure is innocent,
negligent, or intentional; and (b) any and all costs and expenses (including
reasonable legal fees) relating to any of the matter set forth in subparagraph
(a), above. All rights and remedies under this section are cumulative and in
addition to all other rights or remedies under this lease or any applicable
laws.
Section 33 BROKERAGE FEE. Landlord shall pay all real estate or leasing
commissions and brokerage fees payable in connection with this lease. Tenant
represents to Landlord that Tenant has not dealt with or entered into any
agreement with any persons or entities that would require the payment of any
real estate or leasing commission or brokerage fees in connection with this
lease.
Section 34 TAX INCENTIVES. Landlord agrees that (a) it shall cooperate
and assist Tenant as reasonably requested by Tenant in Tenant's efforts to
secure the benefit of certain tax incentives, and (b) if these incentives are
challenged at any time during the term of this lease, Landlord shall
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use its best efforts to assist Tenant in objecting to and overcoming such
challenge. Section34 shall not require Landlord to incur expenses or costs,
including, but not limited to, professional fees or expenses, but Tenant shall
not be obligated to reimburse Landlord for any such costs or expenses which
Landlord may elect to incur.
Witnesses as to Landlord: 1815 LLC
/s/ [illegible] By: /s/ [illegible]
--------------------------------- --------------------------------------
Name: [illegible]
----------------------------
/s/ [illegible] Its: PARTNER
--------------------------------- --------------------------------------
Name: [illegible]
----------------------------
Witnesses as to Tenant: ADS Alliance Data Systems, Inc.
/s/ [illegible] By: /s/ Xxxxxx X. Xxxxxx
--------------------------------- --------------------------------------
Xxxxxx X. Xxxxxx
EVP & CAO
Name: [illegible] Its: EVP & CAO
--------------------------------- --------------------------------------
/s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
----------------------------
STATE OF OHIO, COUNTY OF FRANKLIN, ss:
The foregoing instrument was acknowledged before me this 8th day of
FEBRUARY, 2001, by XXXX XXXX the PARTNER of 1815 LLC, a LIMITED LIABILITY CO, on
behalf of the 1815 LLC.
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/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Notary Public
STATE OF TEXAS, COUNTY OF DALLAS, ss:
The foregoing instrument was acknowledged before me this 6th day of
FEBRUARY, 2001, by XXXXXX X. XXXXXX the EVP & CAO of ADS Alliance Data Sytems,
Inc., a Delaware corporation, on behalf of the Corporation.
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Notary Public
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