SECOND LEASE AMENDMENT
EXHIBIT 10.100.2
SECOND LEASE AMENDMENT
THIS SECOND LEASE AMENDMENT (“Amendment”) is executed as of this 30th day of November, 2010,
by and between 4300 VENTURE 34910 LLC, a Delaware limited liability company (“Landlord”), and
eTAILDIRECT LLC, an Ohio limited liability company (“Tenant”).
Background:
A. Landlord and Tenant entered into a certain Industrial Lease — Net dated as of October 1,
2007 (the “Initial Lease”), as amended by that certain First Lease Amendment dated September 29,
2009 (the “First Amendment”), whereby Tenant leased from Landlord and Landlord leased to Tenant
certain premises and future premises consisting of approximately 606,270 square feet of first floor
space plus approximately 120,000 square feet of basement space, all located in Building 3 of the
Columbus International Aircenter (the “Building”), located in the City of Columbus, County of
Franklin, State of Ohio;
B. Landlord and Tenant desire to amend the Lease to, among other things, provide for Tenant’s
early possession and improvement of a portion of the future premises.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants herein
contained and each act performed hereunder by the parties, Landlord and Tenant hereby agree that
the Initial Lease is amended as follows:
1. Delivery of the Studio Space. The “Studio Space” shall mean that certain
approximately 8,073 square feet as shown on Exhibit A-2 hereto and incorporated herein.
The Studio Space is currently a part of the future Leased Premises under the Lease. The Delivery
Date for the Studio Space shall be as of December 1, 2010, and Landlord shall deliver the Studio
Space on such date in accordance with Section 1.2 of the Lease; provided however, Tenant shall not
have a remeasurement right with respect to the Studio Space. Upon delivery, the Studio Space shall
be a part of the Leased Premises for all purposes under the Lease. The later of the date Landlord
so delivers the Studio Space and December 1, 2010 shall be the “Effective Date”.
2. Revised Delivery Schedule for Expansions of the Leased Premises; Revised Annual
Rent.
| (a) | As of the Effective Date, the table set forth in Section 1.2 is hereby deleted and restated: |
| Date of Delivery by | Approx. Square | Approx. Total Square | ||||||
| Landlord | Footage Delivered | Footage | ||||||
October 1, 2007 |
265,000 | 265,000 | ||||||
September 1, 2010 |
79,270 | 344,270 | ||||||
December 1, 2010 |
8,073 | 352,343 | ||||||
September 1, 2011 |
191,927 | 544,270 | ||||||
September 1, 2012 |
62,000 | 606,270 | ||||||
September 1, 2014 |
120,000 | 726,270 | ||||||
| (b) | As of the Effective Date, the table set forth in Section 1.6(b) is hereby deleted and restated: |
| Monthly | ||||||||||||||||||||||||
| Total 1st | 1st Floor | Bsm’t | Install’ts of | |||||||||||||||||||||
| Period | Floor SF | $/SF/yr | Bsm’t SF | $/SF/yr | Annual Rent | Annual Rent | ||||||||||||||||||
2/01/2008 to 12/31/2008 |
265,000 | $ | 2.25 | $ | 596,250.00 | $ | 49,687.50 | |||||||||||||||||
1/01/2009 to 8/31/2010 |
265,000 | $ | 2.10 | $ | 556,500.00 | $ | 46,375.00 | |||||||||||||||||
9/01/2010 to 11/30/2010 |
344,270 | $ | 2.00 | $ | 688,540.00 | $ | 57,378.33 | |||||||||||||||||
12/01/10 to 8/31/2011 |
352,343 | $ | 2.00 | $ | 704,686.00 | * | $ | 58,723.83 | ||||||||||||||||
9/01/2011 to 8/31/2012 |
544,270 | $ | 2.00 | $ | 1,088,540.00 | $ | 90,711.67 | |||||||||||||||||
9/01/2012 to 8/31/2013 |
606,270 | $ | 2.00 | $ | 1,212,540.00 | $ | 101,045.00 | |||||||||||||||||
9/01/2013 to 8/31/2014 |
606,270 | $ | 2.00 | $ | 1,212,540.00 | $ | 101,045.00 | |||||||||||||||||
9/01/2014 to 8/31/2015 |
606,270 | $ | 2.00 | 120,000 | $ | 0.30 | $ | 1,248,540.00 | $ | 104,045.00 | ||||||||||||||
9/01/2015 to 8/31/2016 |
606,270 | $ | 2.00 | 120,000 | $ | 0.35 | $ | 1,254,540.00 | $ | 104,545.00 | ||||||||||||||
9/01/2016 to 9/30/2017 |
606,270 | $ | 2.00 | 120,000 | $ | 0.40 | $ | 1,260,540.00 | $ | 105,045.00 | ||||||||||||||
First Option Term (5yrs.) |
606,270 | $ | 2.40 | 120,000 | $ | 0.50 | $ | 1,515,048.00 | $ | 126,254.00 | ||||||||||||||
Second Option Term (5 yrs.) |
606,270 | $ | 2.70 | 120,000 | $ | 0.50 | $ | 1,696,929.00 | $ | 141,410.75 | ||||||||||||||
| * | annualized number based on less than a full calendar year |
3. Tenant’s Work; Landlord’s Approval. Tenant shall build out the Studio Space in
full compliance with Section 9.4 of the Lease (Alterations) and in accordance with the plans and
specifications approved by Landlord. Landlord confirms that it has approved the DSW Photo Studio
Interior Alterations dated October 8, 2010 prepared by Ford & Associates Architects. At Tenant’s
cost, Tenant shall furnish all fixturing and other improvements needed for Tenant’s use. Landlord
shall have no obligation to perform improvements to the Studio Space nor any obligation to
contribute to or reimburse expenses relating to the improvements in the Studio Space.
4. Purpose. Section 1.6(a) of the Initial Lease is hereby deleted in its entirety and
restated:
| (a) | Purpose (See Section 3.1): The Leased Premises shall be used only for warehouse, distribution, photo studio and offices related to the foregoing, and any other use shall require Landlord’s prior consent, which consent shall not be unreasonably withheld, conditioned or delayed. |
5. Representations and Warranties.
(a) Tenant represents and warrants to Landlord as follows: (i) The execution, delivery and
performance of this Amendment will not result in any breach of, or constitute any default under,
any agreement or other instrument to which Tenant is a party or by which Tenant might be bound;
(ii) The execution, delivery and performance by Tenant of this Amendment have been duly authorized
by Tenant, and there are no third party consents required for Tenant to enter into this Amendment
or to perform its obligations hereunder; and (iii) The person executing this Amendment on behalf of
Tenant represents and warrants that such person is duly authorized to act on behalf of Tenant in
executing this Amendment, and that this Amendment constitutes a valid and legally binding
obligation of Amendment enforceable against Tenant in accordance with its terms.
(b) Landlord hereby represents and warrants to Tenant as follows: (i) The execution, delivery
and performance of this Amendment will not result in any breach of, or constitute any default
under, any agreement or other instrument to which Landlord is a party or by which Landlord or the
Leased Premises might be bound and will not result in the imposition of any lien or encumbrance
against the Leased Premises or the Lease; (ii) The execution, delivery and performance by Landlord
of this Amendment have been duly authorized by Landlord, and all third party consents required for
this Amendment have been obtained by Landlord, specifically including but not limited to the
consent and approval of Landlord’s mortgage lender, if any; and (iii) The person executing this
Amendment on behalf of Landlord represents and warrants that such person is duly authorized to act
on behalf of Landlord in executing this Amendment, and that this Amendment constitutes a valid and
legally binding obligation of Landlord enforceable against Landlord in accordance with its terms.
6. Incorporation of Background. The above Background paragraphs are hereby
incorporated into this Amendment as if fully set forth herein.
7. Definitions; Definition of Lease. Except as otherwise provided herein, the
capitalized terms used in this Amendment shall have the definitions set forth in the Initial Lease.
As used in the Initial Lease and herein, “Lease” shall mean the Initial Lease and First Lease
Amendment as modified by and together with this Amendment.
8. Entire Agreement. The Lease, as amended by this Amendment, constitutes the entire
agreement between Landlord and Tenant regarding the Lease and the subject matter contained herein
and supersedes any and all prior and/or contemporaneous oral or written negotiations, agreements or
understandings.
9. Lease Ratification. The Lease, as modified herein, is in full force and effect,
and the parties hereby ratify the same. The Lease and this Amendment shall be binding upon the
parties and their respective successors and assigns. To the extent the terms and conditions of the
Lease conflict with or are inconsistent with this Amendment, the terms and conditions of this
Amendment shall control.
10. Counterparts. This Amendment may be executed in counterparts, each of which shall
be deemed a part of an original and all of which together shall constitute one agreement.
Signature pages may be detached from the counterparts and attached to a single copy of this
Amendment to form one document.
11. DSW’s Consent to Amendment; Ratification of Guaranty. DSW Inc. has, and assumes,
no obligations, liabilities or responsibilities under this Lease, except that DSW Inc. delivered to
Landlord a Guaranty dated as of October 1, 2008 under which DSW Inc. guaranteed the performance of
Tenant under the Initial Lease. DSW Inc. delivered the Guaranty as an inducement to Landlord to
enter into the Initial Lease. DSW Inc. hereby consents to this Amendment, and DSW Inc. hereby
affirms and ratifies the Guaranty as to Tenant’s performance under the Lease, as modified by this
Amendment.
[signatures appear on the following page]
IN WITNESS WHEREOF, the parties have caused this Second Lease Amendment to be executed on the
day and year first written above.
| LANDLORD: 4300 VENTURE 34910 LLC, a Delaware limited liability company |
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| By: | 0000 XXXX XXXXX XXXXXX LLC, | |||||||||||||||||
| an Ohio limited liability company, its Member |
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| By: | JUBILEE-AIRCENTER, L.L.C., | |||||||||||||||||
| a Delaware limited liability company, its Managing Member |
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| By: | JUBILEE LIMITED PARTNERSHIP, | |||||||||||||||||
| an Ohio limited partnership, its Managing Member |
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| By: | SCHOTTENSTEIN PROFESSIONAL | |||||||||||||||||
| ASSET MANAGEMENT CORPORATION, a Delaware corporation, its General Partner |
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| By: | /s/ Xxx Xxxxxxxxxxxxx | |||||||||||||||||
| Print Name: | Xxx Xxxxxxxxxxxxx | |||||||||||||||||
| Title: | President & Chairman | |||||||||||||||||
| TENANT: eTAILDIRECT LLC an Ohio limited liability company |
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| By: | /s/ Xxxxxxx Xxxxxx | |||
| Print Name: | Xxxxxxx Xxxxxx | |||
| Title: | EVP | |||
[acknowledgments appear on the following pages]
DSW Inc., an Ohio corporation, joins in this Amendment solely for purpose of paragraph 11 of
this Amendment, and for no other purpose. Except for the obligations of DSW Inc. expressly set
forth in paragraph 11 of this Amendment, DSW Inc. has, and assumes, no obligations, liabilities or
responsibilities under this Amendment. Subject to the foregoing:
| DSW INC., an Ohio corporation |
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| By: | /s/ Xxxxxxx Xxxxxx | |||
| Print Name: | Xxxxxxx Xxxxxx | |||
| Title: | EVP | |||
