1
Exhibit 10.7
CONFORMED COPY
AMENDMENT TO BUILDING LEASE AGREEMENT
-------------------------------------
This amendment to the Building Lease Agreement dated July 1,
1995 (the "LEASE AGREEMENT") between Distribution Land Corp., a Delaware
corporation (hereinafter referred to as "LANDLORD") and Too, Inc., a Delaware
corporation (successor to Limited Too, Inc., and hereinafter referred to as
"TENANT") is entered into and made as of the 23rd day of August, 1999, by and
between Landlord and Tenant.
W I T N E S S E T H:
WHEREAS, Tenant leases from Landlord a portion of a certain
office/warehouse distribution facility containing approximately 100,600 square
feet of floor space, identified on Exhibit A attached to the Lease Agreement
(the "BUILDING"), pursuant to the terms of the Lease Agreement; and
WHEREAS, the Building is located upon an approximately 11.479
acre parcel of land located on Xxxxx Road, Columbus, Ohio, which land is
depicted on Exhibit A attached to the Lease Agreement (the "CAMPUS"); and
WHEREAS, Landlord leases to Tenant the Building and has
granted to Tenant the right to utilize certain common areas and facilities
located within the Campus, all subject to the terms and conditions of the Lease
Agreement; and
WHEREAS, The Limited, Inc. ("THE LIMITED") and Tenant are, on
the date hereof, entering into a Distribution Agreement (the "DISTRIBUTION
AGREEMENT") pursuant to which Tenant will become an independent company from The
Limited;
WHEREAS, Landlord and Tenant desire to amend the Lease
Agreement as hereinafter provided; and
WHEREAS, Landlord is committing to provide approximately
80,000 square feet of floor space pursuant to this Amendment.
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:
SECTION 1. Definitions. Any capitalized terms not defined herein shall
have the meanings ascribed to them in the Lease Agreement.
SECTION 2. Amendments. Effective as of the date hereof, the parties
agree that the Lease Agreement shall be amended as follows:
2
(a) Section 1.02.D is deleted in its entirety and replaced with the
following:
"D.1 Initial Term: Two (2) years, beginning on the
Distribution Date (as defined in the Distribution
Agreement) (the "COMMENCEMENT DATE") and ending on
the second anniversary thereof (the "EXPIRATION
Date")"
"D.2 Renewal Option: One (1) one-year Renewal Option (on
the terms set forth in Section 3.06 hereof)
(b) Section 1.02G is deleted in its entirely and replaced with the
following:
"G. Use: office/warehouse distribution use related to
distribution for retail sale of girls', infants'
and toddlers' apparel, accessories, lifestyle and
personal care items and other products, and for all
administrative activities relating thereto"
(c) A new Section 1.02H is added, which reads as follows:
"H. Addresses for Notices and Payments:
Tenant: Too, Inc.
0000 Xxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxxxx
Landlord: Distribution Land Corp.
c/o The Limited, Inc.
Three Limited Parkway
X.X. Xxx 00000
Xxxxxxxx, Xxxx 00000
Attention: Corporate Real Estate
Department
(d) Section 1.03H shall be redesignated as "Section 1.03A" and all
references to Section 1.03H in the Lease Agreement shall be deemed to be
modified accordingly.
(e) Section 1.03I shall be redesignated as "Section 1.03B" and all
references to Section 1.03I in the Lease Agreement shall be deemed to be
modified accordingly.
(f) Section 2.04 is deleted in its entirety and replaced with the
following "Intentionally omitted".
(g) Section 3.05 is deleted in its entirety, and replaced with the
following:
3
"3.05 - RENEWAL OPTION. So long as Tenant is not in default
under the terms of this Lease, Landlord does hereby grant to Tenant the
right and option to extend and renew the Initial Term of this Lease for
one (1) additional period of one (1) year (herein the "RENEWAL TERM"),
beginning on the date immediately following the Expiration Date of the
Initial Term, upon the same terms, conditions, covenants and provisions
as are provided in this Lease (including the Base Rent). Unless Tenant
notifies Landlord, at least six (6) months prior to the expiration of
the Initial Term, of Tenant's intent not to extend and renew the Term
of this Lease, Tenant shall be deemed to have exercised its Renewal
Option in respect of the Renewal Term. If the Renewal Option is
exercised as provided herein, then this Lease shall be deemed to have
been amended on the Expiration Date of the Initial Term to reflect the
changes which will result from such extension of the Term of this
Lease, including the modification of all references in the Lease to the
"Term" thereof (as defined in Section 3.01) to include the Renewal Term
as well as the Initial Term."
(h) Section 4.02A is deleted in its entirety and replaced with the
following:
"A. ADJUSTMENT OF BASE RENT FOR PARTIAL USE OF
BUILDING BY LANDLORD. If, during the Term of this Lease,
Landlord (or any person authorized by Landlord) utilizes any
portion of the distribution space located in the Building,
Tenant's rent for any given month shall be reduced by an
amount equal to the product of (a) the number of square feet
of distribution space used by Landlord times (b) the Base Rent
for such distribution space (as provided in Item 1.02D(iii) of
the Basic Lease Provisions) times (c) a fraction, the
numerator of which is the number of days during such month
during which Landlord used such space and the denominator of
which is the number of days in such month."
(i) Section 4.02B is deleted and replaced in its entirety with the
following:
"B. ADJUSTMENT OF BASE RENT FOR CAPITAL IMPROVEMENTS.
From and after the Commencement Date, Tenant shall be solely
responsible for the costs of installing any equipment or
making any other capital improvement to the Building."
(j) Section 4.03 is deleted in its entirety and replaced with the
following "Intentionally omitted" and all references to "Additional Rent" and
"Operating Expenses" in the Lease Agreement shall be deemed to be deleted.
(k) Section 4.04 is deleted in its entirety and replaced with the
following
"4.04 - INTEREST DUE UPON LATE PAYMENT. If Tenant fails to pay
any installment of Base Rent within 30 days of the date on which
payment is due as provided in Section 4.01 hereof (the "PAYMENT DATE"),
Tenant shall be obligated to pay in addition to the amount due on such
Payment Date, interest on such
4
amount at the prime, or best, rate (as quoted from time to time in the
Wall Street Journal) compounded monthly from the relevant Payment Date
through the date of payment. The provisions of this Section 4.04 shall
not be construed to extend the date for payment of Base Rent or to
relieve Tenant of its obligations to pay Base Rent at the time or times
herein stipulated, and neither demand for, nor collection by Landlord
of, interest pursuant to this Section 4.04 shall be construed as a cure
of any default in payment by Tenant."
(l) Section 5.01 is amended by replacing the words "Item I" with the
words "Item G".
(m) Section 5.06 is deleted in its entirety and replaced with the
following "Intentionally omitted".
(n) Section 9.03 is amended by adding the following at the end of the
existing text:
"Landlord shall not be responsible for, and shall not be
obligated to insure against, any loss or damage to any
personal property of Tenant or which Tenant may have in the
Building, or any trade fixture installed or paid for by Tenant
in the Building, or any additional improvements which Tenant
may construct in the Building."
(o) Section 10.02 is amended by adding the following at the end of the
existing text:
"Tenant agrees to maintain liability insurance with a minimum
policy limit of $5 million ($5,000,000)."
(p) Section 19.01 is deleted in its entirety and replaced with the
following:
"19.01 - RELOCATION OF TENANT. Tenant acknowledges that
Landlord retains the right, in its sole discretion, upon ninety (90)
days' prior written notice, to require Tenant to relocate prior to the
Expiration Date if Landlord believes such relocation to be necessary to
enable proposed developments on the present site of the Building. In
such event, Landlord shall make available approximately 80,000 square
feet of alternative office and warehouse space to Tenant on terms
substantially the same as set forth herein. Tenant hereby acknowledges
that Landlord shall bear no responsibility for any claims of any kind,
including for disruption of business, which Tenant might otherwise
bring against Landlord in any respect relating to such relocation. In
connection with such relocation, Landlord and Tenant shall amend this
Lease as necessary, including to change the description and square
footage of the demised premises. Landlord will use reasonable efforts
to prevent any relocation contemplated by this Section 19.01 from
occurring, but cannot provide any assurance that a relocation will not
be required.
5
Tenant shall bear all costs of any relocation described in the
immediately preceding paragraph, including, but not limited to, the
costs of relocating personnel, systems and fixtures and any costs of
any modifications or renovations required at such new premises;
provided, however, that Landlord shall bear all costs of any such
relocation if all of the following conditions are satisfied: (a)
Landlord requires Tenant to vacate the Building prior to June 15, 2001,
(b) Tenant is relocated to space other than the Abercrombie & Fitch
Home Office space in Reynoldsburg, Ohio (the "A&F OFFICE SPACE") and
(c) Tenant's relocation is to space that is temporary and not expected
to be Tenant's ongoing and permanent headquarters location as mutually
determined in good faith by the Tenant and Landlord. Tenant agrees that
if (x) Tenant is relocated to the A&F Office Space or (y) Landlord is
required to bear the costs of Tenant's relocation pursuant to the
proviso of the immediately preceding sentence, then Landlord shall have
the right to approve the selection of the contractor AND the final
modification/renovation plans prior to the commencement of such
modification/renovation."
SECTION 3. No Other Modifications. Except as amended hereby, the Lease
Agreement shall remain unchanged and the Lease Agreement as amended hereby shall
remain in full force and effect.
SECTION 4. Governing Law. This Amendment shall be construed and
enforced in accordance with the laws of the State of Ohio.
SECTION 5. Successors and Assigns. This Amendment 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.
SECTION 6. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be deemed an original and said counterparts
shall together constitute one and the same instrument, binding all of the
parties hereto, notwithstanding all of the parties are not signatory to the
original or the same counterparts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Witnesses as to Landlord: LANDLORD:
DISTRIBUTION LAND CORP.
/s/Xxxxx X. Xxxxxxxx By: /s/ C. Xxxxx Xxxx
------------------------------ -----------------------------
Print Name:XXXXX X. XXXXXXXX Name: C. Xxxxx Xxxx
Title: Vice President
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
6
Witnesses as to Tenant: TENANT:
TOO, INC.
____________________________ By: /s/ Xxxx X. Xxxxxxxxxx
Print Name:__________________ ---------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President - Chief
Financial Officer
____________________________
Print Name:__________________
7
STATE OF OHIO,
----
COUNTY OF FRANKLIN , SS:
-------------
The foregoing instrument was acknowledged before me this 23rd day of
August, 1999, by C. Xxxxx Xxxx, Vice President of Distribution Land Corp., a
Delaware corporation, on behalf of the corporation.
/s/ Xxxxx X. Xxxxxxxx
--------------------------
Notary Public
[Notarial Seal]
STATE OF ______________________,
COUNTY OF ____________________, SS:
The foregoing instrument was acknowledged before me this _____ day of
August, 1999, by Xxxx X. Xxxxxxxxxx, Vice President - Chief Financial Officer,
of Too, Inc., a Delaware corporation, on behalf of the corporation.
----------------------------------
Notary Public
[Notarial Seal]
