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Exhibit
10.10
SIXTH AMENDMENT TO
LEASE
THIS SIXTH AMENDMENT TO LEASE
(hereinafter referred to as the “Sixth Amendment”) is
made effective as of this 27th day of January, 2006, by and between
PARTNERS AT BROOKSEDGE, an Ohio general partnership
(hereinafter referred to as “Lessor”), ADS ALLIANCE
DATA SYSTEMS, INC., a Delaware corporation (hereinafter
referred to as “Lessee”) and ALLIANCE DATA SYSTEMS
CORPORATION, a Delaware corporation (hereinafter referred to a
“Guarantor”).
RECITALS
| A. |
Continental Acquisitions, Inc., as Lessor, and World Financial
Network National Bank (U.S.) (hereinafter referred to as
“WFN”), as Lessee, entered into a Lease dated
July 2, 1990 for certain space located at 220 West Schrock
Road, Westerville, Ohio 43081, and being part of “Brooksedge
Corporate Center”. |
| B. |
The interest of Continental Acquisitions, Inc. as
“Lessor” under the Lease was subsequently assigned on
August 28, 1990 to Lessor. |
| C. |
The Lease was amended by that certain First Amendment of Lease
between WFN and Lessor dated September 11, 1990, that certain
Second Amendment of Lease between WFN and Lessor dated
November 16, 1990, that certain Third Amendment of Lease
between WFN and Lessor dated February 18, 1991, that certain
Fourth Amendment to Lease dated June 1,2000, and that certain
Fifth Amendment to Lease dated June 30, 2001. |
| D. |
The interest of WFN as “Lessee” under the Lease was
subsequently assigned on February 1, 1998 to Lessee. The Lease
as amended and assigned is hereinafter collectively referred to as
the “Lease”. |
| E. |
Guarantor has guaranteed the obligations of the Lessee under
the Lease pursuant to a certain “Guarantee” dated
June 1, 2000 (hereinafter referred to a
“Guarantee”). |
| F. |
The current term of the Lease expires on May 31, 2006, and
Lessee has one (1) option to renew the Lease for an additional
term of five (5) years. Lessee wishes to exercise its renewal
option under the Lease on the terms set forth herein. |
PROVISIONS
| 1. |
Incorporation of Recitals. The Recitals portion
of this Sixth Amendment is hereby incorporated by this reference to
the same extent and as fully as though it were here rewritten in
its entirety. All capitalized, terms not otherwise defined herein
shall have the same meaning set forth in the Lease. |
| 2. |
Exercise of Renewal. Lessee hereby exercises its
remaining option to renew the term of the Lease for an additional
term of five (5) years on the terms contained in the Lease.
Accordingly, the term of the Lease is hereby extended from its
current expiration date of May 31, 2006 to and including
May 31, 2011. Lessee shall have no further right or option to
extend the term of the Lease. |
| 3. |
Renewal Rent. Lessee shall pay Fixed Minimum Rent
during the extended term under paragraph 2 above in the following
annual and monthly amounts: |
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Period
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Annual Amount |
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Monthly
Installment |
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Amount
per s.f. |
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June 1, 2006 through and including
May 31, 2011
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$ |
921,312.00 |
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$ |
76,776.00 |
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$ |
9.14 |
| 4. |
Lessor’s Work, in consideration of the
extension of the term of the Lease under paragraph 2 above, Lessor
shall perform certain work at the Premises as described on
Exhibit A attached hereto and made a part hereof
(hereinabove and hereinafter referred to as the
“Lessor’s Work”). |
Lessor shall procure all
necessary licenses, permits, approvals and authorizations for
Lessor’s Work, and shall promptly and diligently construct
Lessor’s Work in a good and workmanlike manner.
Lessee shall reasonably
cooperate with Lessor in the scheduling of contractors and
subcontractors to complete Lessor’s Work and will make the
Premises available as reasonably required to allow the timely
prosecution and completion of Lessor’s Work. Work that may
disrupt daily operations or present safety concerns must be
performed after 11:00 p.m. Such cooperation will include, without
limitation, the coordination of temporary shut down of HVAC and
other building systems to be replaced or repaired, restrictions on
parking areas to be repaved or repaired, and the relocation of
furniture, equipment and other of Tenant’s personal property
for interior work within the Premises.
Lessor shall use its
reasonable efforts to achieve Substantial Completion (as
hereinafter defined) of Lessor’s Work on or before
June 1,2006 (hereinabove and hereinafter referred to as the
“Completion Date”); provided that if Tenant
unreasonably interferes with the completion of Lessor’s Work,
the Completion Date shall be extended one (1) day for each day
of unreasonable interference. Further, if Lessor is delayed,
hindered or prevented from the performance of Lessor’s Work
by reason of strikes, lock-outs labor troubles, inability or
procure materials, failure of power, inadequate power, restrictive
governmental laws or regulations, severe weather conditions,
disaster, riots, insurrection, war, or other reason of a like
nature not the fault of Lessor in performing Lessor’s Work,
the Completion Date shall be extended for the period of the
delay.
As used herein,
“Substantial Completion” means the date (x) when
construction of Lessor’s Work is sufficiently complete so
that Lessee can utilize the improvements to be constructed as part
of lessor’s Work, and (y) any certificate of occupancy
(temporary or final) required for Lessor’s Work is issued for
the Premises. “Substantial Completion” shall not
require the completion of punchlist items or other non-essential
items which according to customary constructions practices are
deferred until more suitable weather or other conditions permit
their installation.
Lessor shall pay the cost of
construction for Lessor’s. Work, including, without
limitation, all engineering and design fees and necessary licenses,
permits, approvals and authorizations, up to a maximum of
$2,200,000.00. If at any time the cost of construction of
Lessor’s Work as described above will exceed $2,200,000.00
(including, without [imitation, cost increases because of any
change orders thereto approved in writing by Lessor and Lessee),
Lessee shall pay to Lessor the amount of such excess within thirty
(30) days after invoicing by Lessor.
Except as provided above in
this Lease, Lessee accepts the Premises “as is”, and
Lessor shall not have any obligation to construct any improvements,
alterations or additions to the Premises other than Lessor’s
Work. If Lessee should request Lessor to perform any additional
work to the Premises either before or after the date of this Sixth
Amendment, all such work done by Lessor, at Lessee’s request
shall be at Lessee’s expense and shall be paid for by Lessee
depositing with Lessor, prior to the commencement of such other
work, a sum equal to the cost for such work, as reasonably •.
estimated by Lessor; and upon completion thereof, appropriate
adjustment shall be made between Lessor and Lessee based upon the
actual cost of the work.
| 5. |
Confidentiality. Lessor and its employees and or
designated third party agents shall not during the Term, or at any
time after the termination or expiration of the Term, directly or
indirectly use, or disclose to any person or entity any information
learned about Lessee or Lessee’s affiliated entities,
including, without limitation, the names of any Lessee’s or
its affiliate’s customers, financial data and marketing
information, pricing data or any other information concerning the
business of Lessee or its affiliates or the manner of operation,
plans, formulae, compositions, systems, techniques, inventions,
machines, computer programs, security systems or procedures,
production, marketing, or merchandising methods, processes, systems
of Lessee or its affiliates or other data of any kind, nature, or
description relating to Lessee or its affiliates. Lessor will
require each of its employees and designated third party’s
having access to Lessee’ facilities to sign a nondisclosure
agreement that is at least as restrictive as that attached as
Exhibit B. |
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| 6. |
No Other Changes: Ratification of Lease and
Guarantee. This Sixth Amendment shall only modify or amend
the Lease to the extent provided herein and all other conditions,
covenants and agreements in the Lease shall remain in full force
and effect. Subject to the terms of this Sixth Amendment, Lessor
and Lessee do hereby ratify and confirm in their entirety the
conditions, covenants and agreements contained in the Lease, and
Guarantor hereby ratifies and confirms in their entirety the
conditions, covenants and agreements contained in the Guarantee. If
there is a conflict between the provisions contained in this Sixth
Amendment and the provisions of the Lease, this Sixth Amendment
shall control. |
| 7. |
Miscellaneous. The governing law provisions set
forth in the Lease shall also be applicable to this Sixth
Amendment. The captions at the beginning of the several paragraphs
of this Sixth Amendment are for the convenience of the reader and
shall be ignored in construing this Sixth Amendment. This Sixth
Amendment may be executed in several counterparts and each of such
counterparts shall be deemed to be an original hereof. |
IN WITNESS WHEREOF, Lessor,
Lessee and Guarantor have executed this Sixth Amendment effective
as of the date first set forth above.
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PARTNERS AT
BROOKSEDGE,
an Ohio general partnership
(“Lessor”)
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| By: |
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Franklin E.
Kass, Managing General Partner |
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ADS ALLIANCE DATA SYSTEMS,
INC.,
a Delaware corporation
(“Lessee”)
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| By: |
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Paul D.
Fabara, Chief Operating Officer, Retail Services |
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ALLIANCE DATA SYSTEMS CORPORATION,
a Delaware corporation
(“Guarantor”)
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| By: |
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Robert P
Armiak, Vice President/Treasurer |
STATE OF OHIO
COUNTY OF FRANKLIN
The foregoing instrument was
acknowledged before me this 27 th day of January, 2006 by Franklin E. Kass, Managing General
Partner of PARTNERS AT BROOKSEDGE, an Ohio general partnership, on
behalf of the partnership.
Notary Public:
Nannette C. Buel
STATE OF OHIO
COUNTY OF FRANKLIN
The foregoing instrument was
acknowledged before me this 24 th day of February, 2006 by Paul D. Fabara, Chief Operating
Officer, Retail Services of ADS ALLIANCE DATA SYSTEMS, INC.,
a
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