USE AND OCCUPANCY. (a) Tenant agrees to initially open and operate a DSW for the retail sales of shoes and other footwear in the Premises, fully staffed and stocked and equivalent to other DSW stores operated by Tenant in the State of Ohio. The Premises during the term of this Lease shall be occupied for the operating and conducting therein of a retail shoe store or any other lawful retail purpose. Any use other than a retail shoe store shall be consistent with the then existing character of the Center, and shall not violate those exclusives and prohibited uses set forth on Exhibit "E" attached hereto and made a part hereof, which are the exclusives and prohibited uses in effect for the Center as of the date hereof, for so long as and to the extent said exclusives and prohibited uses are still in full force and effect, as well as exclusives and prohibited uses hereafter granted for (i) tenants leasing more than 15,000 square feet of space elsewhere within the Center and (ii) Ulta(3) Cosmetics, for so long as and to the extent said exclusives are still in full force and effect. (b) For so long as Tenant is continuously and regularly operating its business in the Premises, Landlord will not lease any space within the Center or permit any space within the Center (to the extent Landlord has control) to be used by any person, persons, partnership or entity who devotes five percent (5%) or more of its selling area to the sale of footwear (the "Exclusive Use"). The foregoing limitation shall not apply to typical shoe departments found in department stores, junior department stores, general merchandise and discount stores, and clothing retailers, such as Filene's Basement, Marshalls, TJ Maxx and similar type stores so long as such shoe departments are consistent with the typical shoe departments of each such retailer. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing Exclusive Use. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(b), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within thirty (30) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, (ii) to cancel this Lease on one hundred eighty (180) days written notice to Landlord, and/or (iii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(b) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within sixty (60) days of Landlord's receipt of Tenant's notice. (c) Tenant shall at all times conduct its operations on the Premises in a lawful manner and shall, at Tenant's expense, comply with all laws, rules, orders, ordinances, directions, regulations, and requirements of all governmental authorities, now in force or which may hereafter be in force, which shall impose any duty upon Landlord or Tenant with respect to the business of Tenant and the use, occupancy or alteration of the Premises. Tenant shall comply with all requirements of the Americans with Disabilities Act, and shall be solely responsible for all alterations within the Premises in connection therewith. Tenant covenants and agrees that the Premises shall not be abandoned or left vacant and that only minor portions of the Premises shall be used for office or storage space in connection with Tenant's business conducted in the Premises. Without being in default of this Lease, Tenant shall have the right to cease operating (go dark) at any time and for whatever reason after the first (1st) lease year. Notwithstanding the foregoing, Tenant's right to vacate (go dark), shall not release or excuse the Tenant from any obligations or liabilities, including the payment of minimum rent and additional rent and other charges, under this Lease without the express written consent of Landlord. In the event Tenant fails to (i) open and operate within ninety (90) days after delivery of the Premises or (ii) operate for one hundred twenty (120) or more consecutive days, Landlord shall have the right, effective upon thirty (30) days prior written notice to Tenant, to terminate the Lease as Landlord's sole remedy, provided that if Tenant recommences operating fully stocked in substantially all of the premises within such thirty (30) days, Landlord's termination shall be null and void. In the event Tenant fails to open and operate as provided above or shall cease operating as provided above, Landlord's sole remedy on account thereof shall be limited to the right to elect to recapture the premises and terminate the Lease, whereupon there shall be no further liability of the parties hereunder. Such termination shall be effective upon written notice to Tenant any time prior to Tenant reopening for business in the Premises. Provided, however, in the event Landlord has not so elected to recapture, Tenant shall have right to notify Landlord of Tenant's intention to reopen for business in the Premises within sixty (60) days, followed by Tenant's actually reopening for business fully stocked in substantially all of the Premises within such sixty (60) day period, which notice and actual reopening shall toll Landlord's right to recapture. (d) Landlord and Tenant agree that no space in the Center, including the Premises, shall be used as a bowling alley, deep discount retailer, theater showing either film, television or the like or live entertainment, health club, games/amusement room, indoor playground, adult bookstore, flea market, bingo parlor, bar, tavern or cocktail lounge (except if incidental to a restaurant as permitted below), restaurant (except as permitted below), adult book or adult video store (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use), adult theater or "strip-tease" establishment, automotive maintenance or automotive repair facility, warehouse, car wash, pawn shop, check cashing service, establishment selling second hand goods, flea market, entertainment or recreational facility (as defined below), training or educational facility (as defined below); the renting, leasing, selling or displaying of any boat, motor vehicle or trailer; industrial or manufacturing purposes; a carnival, circus or amusement park; a gas station, facility for the sale of paraphernalia for use with illicit drugs, funeral home, blood bank or mortuary, gambling establishment, banquet hall, auditorium or other place of public assembly, second-hand or surplus store, gun range; the sale of fireworks; a veterinary hospital or animal raising facility; the storage of goods not intended to be sold from the Center; a video rental store (except as permitted below), karate center, central laundry or dry cleaning plant, supermarket or any facility which is illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dust or vapors or loud noise or sounds or is inconsistent with community oriented shopping centers. For the purposes of this Section 19(d), the phrase "entertainment or recreational facility" shall include, without limitation, a movie or live theater or cinema, bowling alley, skating rink, gym, health spa or studio, dance hall or night club, billiard or pool hall, massage parlor, health club, game parlor or video arcade (which shall be defined as any store containing more than five (5) electronic games) or any other facility operated solely for entertainment purposes (such as a "laser tag" or "virtual reality" theme operation), except for a "Curves" or similar operation provided the same is not located immediately adjacent to the Premises. For the purposes of this Section 19(d), the phrase "training or educational facility" shall include, without limitation, a beauty school, nail salon, xxxxxx college, reading room, place of instruction or any other operation catering primarily to students or trainees as opposed to customers. Notwithstanding the foregoing, Landlord may lease any premises in the Center for use as (i) a restaurant located no closer than one hundred feet (100') from the exterior walls of the Premises, (ii) a specialty grocery store or specialty supermarket (such as a Wild Oats) located no closer than one hundred feet (100') from the exterior walls of the Premises, and (iii) a national video rental store which has a prohibition against the rental or sale of adult videos and which is located no closer than one hundred feet (100') from the exterior walls of the Premises. The total floor area of all restaurants and medical, dental, professional and business offices located within the Center shall not exceed fifteen percent (15%) of the gross leasable area of the Center. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing restrictions. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(d), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within sixty (60) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, and/or (ii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(d) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within one hundred twenty (120) days of Landlord's receipt of Tenant's notice. (e) Landlord and Tenant agree that (a) no auction, fire or going-out-of-business sales shall be conducted in the Center except a going-out-of-business sale conducted during the last thirty (30) days of an existing retail operation, (b) no exterior identification signs attached to any building in the Center shall be (i) flashing, moving or audible signs or (ii) signs employing exposed neon tubes, exposed ballast boxes or exposed transformers, and (c) no sidewalk sales shall be allowed in the Center.

Appears in 2 contracts

Samples: Lease (Retail Ventures Inc), Lease (DSW Inc.)

USE AND OCCUPANCY. (a) Tenant agrees to initially open and operate a DSW for the retail sales of shoes and other footwear in the ~~Premises~~demised premises, fully staffed and stocked and equivalent to other DSW stores operated by Tenant in the State of ~~Ohio~~New York (the “Permitted Use”). ~~The Premises during the term of this Lease shall be occupied for the operating and conducting therein of a retail shoe store or~~ Tenant may thereafter change its use to any other lawful retail ~~purpose. Any~~ use, subject to (i) any restriction on use ~~other than a retail shoe store shall be consistent with~~ imposed by the ~~then existing character of the Center~~Master Lease, ~~and shall not violate~~ (ii) those exclusives and prohibited uses set forth on Exhibit ~~"E"~~ “D”, attached hereto and made a part hereof, which are the exclusives and prohibited uses in effect for the ~~Center~~ Building as of the date hereof, for so long as and to the extent said exclusives and prohibited uses are still in full force and effect, ~~as well as~~ and (iii) exclusives and prohibited uses hereafter granted for ~~(i)~~ tenants leasing more than ~~15,000~~ 20,000 square feet of space elsewhere within the ~~Center and (ii) Ulta(3) Cosmetics~~Building, for so long as and to the extent said exclusives are still in full force and effect. Landlord represents and warrants to Tenant that there is no restriction in the OEA, Master Lease or otherwise on the use of the demised premises by Tenant for the Permitted Use. Notwithstanding the foregoing, however, Tenant acknowledges that a claim may be asserted under the OEA that a restriction currently exists against the operation of a department store or discount department store in the Shopping Center. In the event that such a claim is asserted Landlord shall not be in default of the foregoing representation, but nevertheless agrees that it shall indemnify, defend and hold Tenant harmless in the event that Tenant incurs any loss, cost, damage or expense (including reasonable attorney’s fees and expenses) on account of any claim which is or may be asserted that Tenant’s use of the demised premises for the Permitted Use is not permitted or is restricted in any material manner by the terms of the OEA. (b) For so long as Tenant is continuously and regularly operating its business in the ~~Premises~~demised premises, Landlord will not lease any space within the ~~Center~~ Building or permit any space within the ~~Center (to the extent Landlord has control)~~ Building to be used by any person, persons, partnership or entity who devotes five percent (5%) or more of its selling area to the sale of footwear (the "“Exclusive Use"”). The foregoing limitation shall not apply to typical shoe departments found in department stores, junior department stores, general merchandise and discount stores, and clothing retailers, such as ~~Filene's Basement~~Target, ~~Marshalls, TJ Maxx~~ Marshalls and similar type ~~stores so long as such shoe departments are consistent with the typical shoe departments of each such retailer~~stores. ~~Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing Exclusive Use. Landlord~~ Tenant acknowledges that ~~in the event of a breach or an attempted or prospective breach of~~ this Section ~~19(b), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach~~ 20(b) applies only to the Building and that Master Landlord is not ~~cured within thirty (30) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted~~ restricted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, (ii) to cancel this Lease on one hundred eighty (180) days written notice to Landlord, and/or (iii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(b) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within sixty (60) days of Landlord's receipt of Tenant's noticeterms hereof. (c) Tenant shall at all times conduct its operations on the ~~Premises~~ demised premises in a lawful manner and shall, at Tenant's ’s expense, comply with all laws, rules, orders, ordinances, directions, regulations, and requirements of all governmental authorities, now in force or which may hereafter be in force, which shall impose any duty upon Landlord or Tenant with respect to the business of Tenant and the use, occupancy or alteration of the ~~Premises~~demised premises. Tenant shall comply with all requirements of the Americans with Disabilities Act, and shall be solely responsible for all alterations within the ~~Premises~~ demised premises in connection therewith. Tenant covenants and agrees that the ~~Premises~~ demised premises shall not be abandoned or left vacant and that only minor portions of the ~~Premises~~ demised premises shall be used for office or storage space in connection with Tenant's ’s business conducted in the ~~Premises~~demised premises. Without being in default of this Lease, Tenant shall have the right to cease operating (go dark) at any time and for whatever reason after the first ~~(1st) lease year~~day of operations. Notwithstanding the foregoing, Tenant's ’s right to vacate (go dark), shall not release or excuse the Tenant from any obligations or liabilities, including the payment of minimum rent and additional rent and other charges, under this Lease without the express written consent of Landlord. In the event Tenant fails to (i) open and operate within ninety (90) days after delivery of the ~~Premises~~ demised premises or (ii) operate for one hundred twenty (120) or more consecutive days, Landlord shall have the right, effective upon thirty (30) days prior written notice to Tenant, to terminate the Lease as Landlord's ’s sole remedy, provided that if Tenant recommences operating fully stocked in substantially all of the premises within such thirty (30) days, Landlord's ’s termination shall be null and void. In the event Tenant fails to open and operate as provided above or shall cease operating as provided above, Landlord's ’s sole remedy on account thereof shall be limited to the right to elect to recapture the premises and terminate the Lease, whereupon there shall be no further liability of the parties hereunder. Such termination shall be effective upon written notice to Tenant any time prior to Tenant reopening for business in the ~~Premises~~demised premises. Provided, however, in the event Landlord has not so elected to recapture, Tenant shall have right to notify Landlord of Tenant's ’s intention to reopen for business in the ~~Premises~~ demised premises within sixty (60) days, followed by Tenant's ’s actually reopening for business fully stocked in substantially all of the ~~Premises~~ demised premises within such sixty (60) day period, which notice and actual reopening shall toll Landlord's ’s right to recapture. Tenant acknowledges that if it ceases operating at the demised premises for a continuous period of eighteen (18) months, the Master Landlord may terminate the Master Lease as to the demised premises, and that if the Master Landlord exercises that right, this Lease shall automatically terminate. (d) Landlord and Tenant each agree that no during the term of this Lease, it shall not use or permit to be used any space in the ~~Center, including~~ Building for any use prohibited by the ~~Premises, shall be used as~~ Master Lease or for the operation of a ~~bowling alley, deep discount retailer, theater showing either film, television or the like or live entertainment, health club, games/amusement room, indoor playground, adult bookstore, flea market,~~ bingo parlor, bar, ~~tavern or~~ tavern, restaurant, cocktail ~~lounge (except if incidental to a restaurant as permitted below), restaurant (except as permitted below)~~lounge, adult book or adult video store (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use), adult theater or "“strip-tease" ” establishment, automotive maintenance or automotive repair facility, warehouse, car wash, pawn shop, check cashing service, establishment selling second hand goods, flea market, entertainment or recreational facility (as defined below), training or educational facility (as defined below); the renting, leasing, selling or displaying of any boat, motor vehicle or trailer; industrial or manufacturing purposes; a carnival, circus or amusement park; a gas station, facility for the sale of paraphernalia for use with illicit drugs, funeral home, blood bank or mortuary, gambling establishment, banquet hall, auditorium or other place of public assembly, second-hand or surplus store, gun range; the sale of fireworks; a veterinary hospital or animal raising facility; the storage of goods not intended to be sold from the Center; a video rental ~~store (except as permitted below)~~store, karate center, central laundry or dry cleaning plant, supermarket or any facility which is illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dust or vapors or loud noise or sounds or is inconsistent with community oriented shopping centers. For the purposes of this Section ~~19(d~~20(d), the phrase "“entertainment or recreational facility" ” shall include, without limitation, a movie or live theater or cinema, bowling alley, skating rink, gym, health spa or studio, dance hall or night club, billiard or pool hall, massage parlor, health club, game parlor or video arcade (which shall be defined as any store containing more than five (5) electronic games) or any other facility operated solely for entertainment purposes (such as a "“laser tag" ” or "“virtual reality" theme operation), except for a "Curves" or similar operation provided the same is not located immediately adjacent to the Premises. For the purposes of this Section 19(d), the phrase "training or educational facility" shall include, without limitation, a beauty school, nail salon, xxxxxx college, reading room, place of instruction or any other operation catering primarily to students or trainees as opposed to customers. Notwithstanding the foregoing, Landlord may lease any premises in the Center for use as (i) a restaurant located no closer than one hundred feet (100') from the exterior walls of the Premises, (ii) a specialty grocery store or specialty supermarket (such as a Wild Oats) located no closer than one hundred feet (100') from the exterior walls of the Premises, and (iii) a national video rental store which has a prohibition against the rental or sale of adult videos and which is located no closer than one hundred feet (100') from the exterior walls of the Premises. The total floor area of all restaurants and medical, dental, professional and business offices located within the Center shall not exceed fifteen percent (15%) of the gross leasable area of the Center. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing restrictions. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(d), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within sixty (60) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, and/or (ii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(d) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within one hundred twenty (120) days of Landlord's receipt of Tenant's notice. (e) Landlord and Tenant agree that (a) no auction, fire or going-out-of-business sales shall be conducted in the Center except a going-out-of-business sale conducted during the last thirty (30) days of an existing retail operation, (b) no exterior identification signs attached to any building in the Center shall be (i) flashing, moving or audible signs or (ii) signs employing exposed neon tubes, exposed ballast boxes or exposed transformers, and (c) no sidewalk sales shall be allowed in the Center.” theme

Appears in 1 contract

Samples: Lease (DSW Inc.)

USE AND OCCUPANCY. (a) Tenant agrees to initially open and operate a DSW ~~for the retail sales of shoes and other footwear~~ Shoe Warehouse in the ~~Premises~~demised premises, fully staffed and stocked and equivalent to other DSW Shoe Warehouse stores operated by Tenant in the State of Ohio. The ~~Premises~~ demised premises during the term of this Lease shall be occupied for the operating and conducting therein of a retail shoe store or any other lawful retail ~~purpose~~purpose upon obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld. Any use other than a retail shoe store shall be consistent with the then existing character of the Shopping Center, and shall not violate those exclusives ~~and prohibited uses~~ set forth on Exhibit "E" attached hereto and made a part hereof, which are the exclusives ~~and prohibited uses~~ in effect for the Shopping Center as of the date hereof, for so long as and to the extent said exclusives and prohibited uses are still in full force and effect, as well as exclusives and prohibited uses hereafter granted for (i) tenants leasing more than 15,000 square feet of space elsewhere within the Center and (ii) Ulta(3) Cosmetics, for so long as and to the extent said exclusives are still in full force and effect, as well as exclusives hereafter granted for tenants leasing more than 20,000 square feet of space elsewhere within the Shopping Center. (b) For so long as Tenant is continuously and regularly operating its business in the ~~Premises~~demised premises, Landlord will not lease any space within the Shopping Center or permit any space within the Shopping Center ~~(to the extent Landlord has control)~~ to be used by any person, persons, partnership or entity who devotes five percent (5%) or more of its selling area to the sale of ~~footwear (the "Exclusive Use"). The foregoing limitation shall not apply to typical shoe departments found in department stores~~footwear, ~~junior department stores, general merchandise and discount stores, and clothing retailers, such as Filene's Basement, Marshalls,~~ except for TJ Maxx and ~~similar type stores~~ its subsidiaries, including HomeGoods, whose use clause under its lease is listed on Exhibit "F", attached hereto and made a part hereof, for so long as such ~~shoe departments are consistent with the typical shoe departments of each such retailer~~lease is in full force and effect. Any portion of the Shopping Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing Exclusive Use. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(b), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within thirty (30) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, (ii) to cancel this Lease on one hundred eighty (180) days written notice to Landlord, and/or (iii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(b) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within sixty (60) days of Landlord's receipt of Tenant's noticeexclusive. (c) Tenant shall at all times conduct its operations on the ~~Premises~~ demised premises in a lawful manner and shall, at Tenant's expense, comply with all laws, rules, orders, ordinances, directions, regulations, and requirements of all governmental authorities, now in force or which may hereafter be in force, which shall impose any duty upon Landlord or Tenant with respect to the business of Tenant and the use, occupancy or alteration of the ~~Premises~~demised premises. Tenant shall comply with all requirements of the Americans with Disabilities Act, and shall be solely responsible for all alterations within the ~~Premises~~ demised premises in connection therewith. Tenant covenants and agrees that the ~~Premises~~ demised premises shall not be abandoned or left vacant and that only minor portions of the ~~Premises~~ demised premises shall be used for office or storage space in connection with Tenant's business conducted in the ~~Premises~~demised premises. Without being in default of this Lease, Tenant shall have the right to cease operating (go dark) at any time and for whatever reason after the first (1st) lease year. Notwithstanding the foregoing, Tenant's right to vacate (go dark), shall not release or excuse the Tenant from any obligations or liabilities, including the payment of minimum rent and additional rent and other charges, under this Lease without the express written consent of Landlord. In the event Tenant fails to (i) open and operate within ninety (90) days after delivery of the ~~Premises~~ demised premises or (ii) operate for one hundred twenty (120) or more consecutive days, Landlord shall have the right, effective upon thirty (30) days prior written notice to Tenant, to terminate the Lease as Landlord's sole remedy, provided that if Tenant recommences operating fully stocked in substantially all of the premises within such thirty (30) days, Landlord's termination shall be null and void. In the event Tenant fails to open and operate as provided above or shall cease operating as provided above, Landlord's sole remedy on account thereof shall be limited to the right to elect to recapture the premises and terminate the Lease, whereupon there shall be no further liability of the parties hereunder. Such termination shall be effective upon written notice to Tenant any time prior to Tenant reopening for business in the ~~Premises~~demised premises. Provided, however, in the event Landlord has not so elected to recapture, Tenant shall have right to notify Landlord of Tenant's intention to reopen for business in the ~~Premises~~ demised premises within sixty (60) days, followed by Tenant's actually reopening for business fully stocked in substantially all of the ~~Premises~~ demised premises within such sixty (60) day period, which notice and actual reopening shall toll Landlord's right to recapture. (d) Landlord and Tenant agree that no space in the Shopping Center, including the ~~Premises~~demised premises, shall be used for any immoral uses or undesirable uses. For purposes hereof, undesirable uses are hereby defined as a bowling alley, deep discount retailer, theater showing either film, television or the like or live entertainment, health club, bar, games/amusement room, indoor playground, adult ~~bookstore,~~ bookstore or flea market, . (e) Tenant agrees that the demised premises may not be used for the operation of a bingo parlor, bar, ~~tavern or~~ tavern, restaurant, cocktail ~~lounge (except if incidental to a restaurant as permitted below), restaurant (except as permitted below)~~lounge, adult book or adult video store (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use), adult theater or "strip-tease" establishment, automotive maintenance or automotive repair facility, warehouse, car wash, pawn shop, check cashing service, establishment selling second hand goods, flea market, entertainment or recreational facility (as defined below), training or educational facility (as defined below); the renting, leasing, selling or displaying of any boat, motor vehicle or trailer; industrial or manufacturing purposes; a carnival, circus or amusement park; a gas station, facility for the sale of paraphernalia for use with illicit drugs, funeral home, blood bank or mortuary, gambling establishment, banquet hall, auditorium or other place of public assembly, second-hand or surplus store, gun range; the sale of fireworks; a veterinary hospital or animal raising facility; the storage of goods not intended to be sold from the Center; a video rental ~~store (except as permitted below)~~store, karate center, central laundry or dry cleaning plant, supermarket or any facility which is illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dust or vapors or loud noise or sounds or is inconsistent with community oriented shopping centers. For the purposes of this Section ~~19(d~~20(e), the phrase "entertainment or recreational facility" shall include, without limitation, a movie or live theater or cinema, bowling alley, skating rink, gym, health spa or studio, dance hall or night club, billiard or pool hall, massage parlor, health club, game parlor or video arcade (which shall be defined as any store containing more than five (5) electronic games) or any other facility operated solely for entertainment purposes (such as a "laser tag" or "virtual reality" theme operation)~~, except for a "Curves" or similar operation provided the same is not located immediately adjacent to the Premises~~. For the purposes of this Section ~~19(d~~20(e), the phrase "training or educational facility" shall include, without limitation, a beauty school, nail salon, xxxxxx college, reading room, place of instruction or any other operation catering primarily to students or trainees as opposed to customers. Notwithstanding the foregoing, Landlord may lease any premises in the Center for use as (i) a restaurant located no closer than one hundred feet (100') from the exterior walls of the Premises, (ii) a specialty grocery store or specialty supermarket (such as a Wild Oats) located no closer than one hundred feet (100') from the exterior walls of the Premises, and (iii) a national video rental store which has a prohibition against the rental or sale of adult videos and which is located no closer than one hundred feet (100') from the exterior walls of the Premises. The total floor area of all restaurants and medical, dental, professional and business offices located within the Center shall not exceed fifteen percent (15%) of the gross leasable area of the Center. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing restrictions. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(d), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within sixty (60) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, and/or (ii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(d) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within one hundred twenty (120) days of Landlord's receipt of Tenant's notice. (e) Landlord and Tenant agree that (a) no auction, fire or going-out-of-business sales shall be conducted in the Center except a going-out-of-business sale conducted during the last thirty (30) days of an existing retail operation, (b) no exterior identification signs attached to any building in the Center shall be (i) flashing, moving or audible signs or (ii) signs employing exposed neon tubes, exposed ballast boxes or exposed transformers, and (c) no sidewalk sales shall be allowed in the Center.

Appears in 1 contract

Samples: Lease (Retail Ventures Inc)

USE AND OCCUPANCY. (a) Tenant agrees to initially open and operate a DSW for the retail sales of shoes and other footwear in the Premises, fully staffed and stocked and equivalent to other DSW stores operated by Tenant in the State of ~~Ohio~~Virginia. The Premises during the term of this Lease shall be occupied for the operating and conducting therein of a retail shoe store or any other lawful retail purpose. Any use other than a retail shoe store shall be consistent with the then existing character of the Center, and shall not violate those exclusives and prohibited uses set forth on Exhibit "“E" ” attached hereto and made a part hereof, which are the exclusives and prohibited uses in effect for the Center as of the date hereof, for so long as and to the extent said exclusives and prohibited uses are still in full force and effect, as well as exclusives and prohibited uses hereafter granted for ~~(i)~~ tenants leasing more than 15,000 square feet of space elsewhere within the ~~Center and (ii) Ulta(3) Cosmetics~~Center, for so long as and to the extent said exclusives are still in full force and effect. (b) For so long as Tenant is continuously and regularly operating its business in the Premises, Landlord will not hereafter lease any space within the Center or permit any space within the Center ~~(to the extent Landlord has control)~~ to be used by any person, persons, partnership or entity who devotes ~~five~~ ten percent (510%) or more of its selling area to the sale of footwear (the "“Exclusive Use"”). The foregoing limitation shall not apply to typical shoe departments found in department stores, junior department stores, general merchandise and discount stores, and clothing retailers, such as Filene's ’s Basement, Marshalls, TJ Maxx and similar type stores so long as such tenants are operating their prototypical shoe ~~departments are consistent with the typical shoe departments of each such retailer~~department. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing Exclusive Use. In the event an owner of an existing leasehold interest at the Center who has the right as of the date hereof to engage in the Exclusive Use (an “Excluded Leasehold”), and such owner desires to assign or sublet its leasehold interest in the Center, or any part thereof, and in connection therewith Landlord’s consent is required or requested, whether with respect to such assignment or subletting or any modification of such Excluded Leasehold in connection therewith, then Landlord agrees that it shall condition its consent thereto to such owner of the Excluded Leasehold agreeing to thereafter being subject to the Exclusive Use. In the event any such third party contests Landlord’s right to condition its consent to such Excluded Leasehold thereafter being subject to the Exclusive Use, Landlord agrees to use commercially reasonable efforts to satisfy the provisions of this paragraph. In the event Landlord fails to exercise commercially reasonable efforts to cause such Excluded Leasehold to be subject to the Exclusive Use, Tenant shall be entitled to a reduction in minimum rent in accordance with the provisions of the immediately following paragraph. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(b), Tenant's ’s remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within thirty (30) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's ’s gross sales calculated according to Tenant's ’s standard procedures in accordance with generally accepted accounting principles, (ii) to cancel this Lease on ~~one hundred eighty~~ thirty (~~180~~30) days written notice to Landlord, and/or (iii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(b) is due to the breach of another tenant's ’s lease and Landlord is, in Tenant's ’s good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within sixty (60) days of Landlord's ’s receipt of Tenant's ’s notice. (c) Tenant shall at all times conduct its operations on the Premises in a lawful manner and shall, at Tenant's ’s expense, comply with all laws, rules, orders, ordinances, directions, regulations, and requirements of all governmental authorities, now in force or which may hereafter be in force, which shall impose any duty upon Landlord or Tenant with respect to the business of Tenant and the use, occupancy or alteration of the Premises. Tenant shall comply with all requirements of the Americans with Disabilities Act, and shall be solely responsible for all alterations within the Premises in connection therewith. Tenant covenants and agrees that the Premises shall not be abandoned or left vacant and that only minor portions of the Premises shall be used for office or storage space in connection with Tenant's ’s business conducted in the Premises. Without being in default of this Lease, Tenant shall have the right to cease operating (go dark) at any time and for whatever reason after the first (1st) lease year. Notwithstanding the foregoing, Tenant's ’s right to vacate (go dark), shall not release or excuse the Tenant from any obligations or liabilities, including the payment of minimum rent and additional rent and other charges, under this Lease without the express written consent of Landlord. In the event Tenant fails to (i) open and operate within ninety (90) days after delivery of the Premises or (ii) operate for one hundred twenty (120) or more consecutive days, Landlord shall have the right, effective upon thirty (30) days prior written notice to Tenant, to terminate the Lease as Landlord's ’s sole remedy, provided that if Tenant recommences operating fully stocked in substantially all of the premises within such thirty (30) days, Landlord's ’s termination shall be null and void. In the event Tenant fails to open and operate as provided above or shall cease operating as provided above, Landlord's ’s sole remedy on account thereof shall be limited to the right to elect to recapture the premises and terminate the Lease, whereupon there shall be no further liability of the parties hereunder. Such termination shall be effective upon written notice to Tenant any time prior to Tenant reopening for business in the Premises. Provided, however, in the event Landlord has not so elected to recapture, Tenant shall have right to notify Landlord of Tenant's ’s intention to reopen for business in the Premises within sixty (60) days, followed by Tenant's ’s actually reopening for business fully stocked in substantially all of the Premises within such sixty (60) day period, which notice and actual reopening shall toll Landlord's ’s right to recapture. (d) Landlord and Tenant agree that no space in the Center, including the Premises, shall be used as a bowling alley, deep discount retailer, theater showing either film, television or the like or live entertainment, health club, bar, games/amusement room, indoor playground, adult bookstore, flea market, bingo parlor, bar, ~~tavern or~~ tavern, restaurant, cocktail ~~lounge (except if incidental to a restaurant as permitted below), restaurant (except as permitted below)~~lounge, adult book or adult video store (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use), adult theater or "“strip-tease" ” establishment, automotive maintenance or automotive repair facility, warehouse, car wash, pawn shop, check cashing service, establishment selling second hand goods, flea market, entertainment or recreational facility (as defined below), training or educational facility (as defined below); the renting, leasing, selling or displaying of any boat, motor vehicle or trailer; industrial or manufacturing purposes; a carnival, circus or amusement park; a gas station, facility for the sale of paraphernalia for use with illicit drugs, funeral home, blood bank or mortuary, gambling establishment, banquet hall, auditorium or other place of public assembly, second-hand or surplus store, gun range; the sale of fireworks; a veterinary hospital or animal raising facility; the storage of goods not intended to be sold from the Center; a video rental ~~store (except as permitted below)~~store, karate center, central laundry or dry cleaning plant, supermarket or any facility which is illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dust or vapors or loud noise or sounds or is inconsistent with community oriented shopping centers. For the purposes of this Section 19(d), the phrase "“entertainment or recreational facility" ” shall include, without limitation, a movie or live theater or cinema, bowling alley, skating rink, gym, health spa or studio, dance hall or night club, billiard or pool hall, massage parlor, health club, game parlor or video arcade (which shall be defined as any store containing more than five (5) electronic games) or any other facility operated solely for entertainment purposes (such as a "“laser tag" ” or "“virtual reality" ” theme operation)~~, except for a "Curves" or similar operation provided the same is not located immediately adjacent to the Premises~~. For the purposes of this Section 19(d), the phrase "“training or educational facility" ” shall include, without limitation, a beauty school, nail salon, ~~xxxxxx~~ bxxxxx college, reading room, place of instruction or any other operation catering primarily to students or trainees as opposed to customers. Notwithstanding the foregoing, Landlord may lease any premises in the Center for use as ~~(i)~~ a restaurant ~~located~~ or supermarket provided that no ~~closer than one~~ part of the Center within two hundred feet (~~100'~~200’) ~~from the exterior walls~~ of the ~~Premises, (ii) a specialty grocery store or specialty supermarket (~~Premises shall be used for such as a Wild Oats) located no closer than one hundred feet (100') from the exterior walls of the Premises, and (iii) a national video rental store which has a prohibition against the rental or sale of adult videos and which is located no closer than one hundred feet (100') from the exterior walls of the Premisesuses. The total floor area of all restaurants and medical, dental, professional and business offices located within the Center shall not exceed ~~fifteen~~ ten percent (1510%) of the gross leasable area of the Center. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing restrictions. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(d), Tenant's ’s remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within sixty (60) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's ’s gross sales calculated according to Tenant's ’s standard procedures in accordance with generally accepted accounting principles, and/or (ii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(d) is due to the breach of another tenant's ’s lease and Landlord is, in Tenant's ’s good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within one hundred twenty (120) days of Landlord's ’s receipt of Tenant's ’s notice. (e) Landlord and Tenant agree that (a) no auction, fire or going-out-of-business sales shall be conducted in the Center except a going-out-of-business sale conducted during the last thirty (30) days of an existing retail operation, (b) no exterior identification signs attached to any building in the Center shall be (i) flashing, moving or audible signs or (ii) signs employing exposed neon tubes, exposed ballast boxes or exposed transformers, and (c) no sidewalk sales shall be allowed in the Center.

Appears in 1 contract

Samples: Lease (DSW Inc.)

USE AND OCCUPANCY. (a) Tenant agrees to initially open and operate a ~~DSW~~ Filene’s Basement for the retail sales of ~~shoes~~ clothing and other ~~footwear~~ apparel in the Premises, fully staffed and stocked and equivalent to other ~~DSW~~ Filene’s Basement stores operated by Tenant in the State of Ohio. The Premises during the term of this Lease shall be occupied for the operating and conducting therein of a retail ~~shoe~~ store selling off price or discount apparel, shoes and accessories or any other lawful retail purpose. Any use other than a retail ~~shoe~~ store selling off price or discount apparel, shoes and accessories store shall be consistent with the then existing character of the Center, and shall not violate those exclusives and prohibited uses set forth on Exhibit "“E" ” attached hereto and made a part hereof, which are the exclusives and prohibited uses in effect for the Center as of the date hereof, for so long as and to the extent said exclusives and prohibited uses are still in full force and effect, as well as exclusives and prohibited uses hereafter granted for (i) tenants leasing more than 15,000 square feet of space elsewhere within the Center and (ii) ~~Ulta(3)~~ Ulta3 Cosmetics, for so long as and to the extent said exclusives are still in full force and effect. (b) For so long as Tenant or its permitted successor(s) or assign(s) is continuously and regularly operating ~~its business~~ in the ~~Premises~~Premises as a retail store selling off price or discount apparel, shoes and accessories, Landlord will not lease any space within the Center or permit any space within the Center (to the extent Landlord has control) (other than pursuant to the lease agreement between DSW Inc. and Landlord) to be used by any person, persons, partnership or entity ~~who devotes five percent (5%)~~ to sell off price or ~~more of its selling area to the sale of footwear~~ discount apparel, shoes and accessories, including, but not limited to, stores such as TJ Maxx, Marshall’s, Home Goods, A.X. Xxxxxx, Marmaxx, Winners, Rxxx Stores, and Lxxxxxxx’x (the "“Exclusive Use"”). The foregoing limitation shall not apply to typical shoe departments found in department stores, junior department stores, general merchandise and discount stores, and clothing retailers, such as Filene's Basement, Marshalls, TJ Maxx and similar type stores so long as such shoe departments are consistent with the typical shoe departments of each such retailer. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing Exclusive Use. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(b), Tenant's ’s remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within thirty (30) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's ’s gross sales calculated according to Tenant's ’s standard procedures in accordance with generally accepted accounting principles, (ii) to cancel this Lease on one hundred eighty (180) days written notice to Landlord, and/or (iii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(b) is due to the breach of another tenant's ’s lease and Landlord is, in Tenant's ’s good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within sixty (60) days of Landlord's ’s receipt of Tenant's ’s notice. (c) Tenant shall at all times conduct its operations on the Premises in a lawful manner and shall, at Tenant's ’s expense, comply with all laws, rules, orders, ordinances, directions, regulations, and requirements of all governmental authorities, now in force or which may hereafter be in force, which shall impose any duty upon Landlord or Tenant with respect to the business of Tenant and the use, occupancy or alteration of the Premises. Tenant shall comply with all requirements of the Americans with Disabilities Act, and shall be solely responsible for all alterations within the Premises in connection therewith. Tenant covenants and agrees that the Premises shall not be abandoned or left vacant and that only minor portions of the Premises shall be used for office or storage space in connection with Tenant's ’s business conducted in the Premises. Without being in default of this Lease, Tenant shall have the right to cease operating (go dark) at any time and for whatever reason after the first (1st) lease year. Notwithstanding the foregoing, Tenant's ’s right to vacate (go dark), shall not release or excuse the Tenant from any obligations or liabilities, including the payment of minimum rent and additional rent and other charges, under this Lease without the express written consent of Landlord. In the event Tenant fails to (i) open and operate within ninety (90) days after delivery of the Premises or (ii) operate for one hundred twenty (120) or more consecutive days, Landlord shall have the right, effective upon thirty (30) days prior written notice to Tenant, to terminate the Lease as Landlord's ’s sole remedy, provided that if Tenant recommences operating fully stocked in substantially all of the premises within such thirty (30) days, Landlord's ’s termination shall be null and void. In the event Tenant fails to open and operate as provided above or shall cease operating as provided above, Landlord's ’s sole remedy on account thereof shall be limited to the right to elect to recapture the premises and terminate the Lease, whereupon there shall be no further liability of the parties hereunder. Such termination shall be effective upon written notice to Tenant any time prior to Tenant reopening for business in the Premises. Provided, however, in the event Landlord has not so elected to recapture, Tenant shall have right to notify Landlord of Tenant's ’s intention to reopen for business in the Premises within sixty (60) days, followed by Tenant's ’s actually reopening for business fully stocked in substantially all of the Premises within such sixty (60) day period, which notice and actual reopening shall toll Landlord's ’s right to recapture. (d) Landlord and Tenant agree that no space in the Center, including the Premises, shall be used as a bowling alley, deep discount retailer, theater showing either film, television or the like or live entertainment, health club, games/amusement room, indoor playground, adult bookstore, flea market, bingo parlor, bar, tavern or cocktail lounge (except if incidental to a restaurant as permitted below), restaurant (except as permitted below), adult book or adult video store (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use), adult theater or "“strip-tease" ” establishment, automotive maintenance or automotive repair facility, warehouse, car wash, pawn shop, check cashing service, establishment selling second hand goods, flea market, entertainment or recreational facility (as defined below), training or educational facility (as defined below); the renting, leasing, selling or displaying of any boat, motor vehicle or trailer; industrial or manufacturing purposes; a carnival, circus or amusement park; a gas station, facility for the sale of paraphernalia for use with illicit drugs, funeral home, blood bank or mortuary, gambling establishment, banquet hall, auditorium or other place of public assembly, second-hand or surplus store, gun range; the sale of fireworks; a veterinary hospital or animal raising facility; the storage of goods not intended to be sold from the Center; a video rental store (except as permitted below), karate center, central laundry or dry cleaning plant, supermarket or any facility which is illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dust or vapors or loud noise or sounds or is inconsistent with community oriented shopping centers. For the purposes of this Section 19(d), the phrase "“entertainment or recreational facility" ” shall include, without limitation, a movie or live theater or cinema, bowling alley, skating rink, gym, health spa or studio, dance hall or night club, billiard or pool hall, massage parlor, health club, game parlor or video arcade (which shall be defined as any store containing more than five (5) electronic games) or any other facility operated solely for entertainment purposes (such as a "“laser tag" ” or "“virtual reality" ” theme operation), except for a "“Curves" ” or similar operation provided the same is not located immediately adjacent to the Premises. For the purposes of this Section 19(d), the phrase "“training or educational facility" ” shall include, without limitation, a beauty school, nail salon, ~~xxxxxx~~ bxxxxx college, reading room, place of instruction or any other operation catering primarily to students or trainees as opposed to customers. Notwithstanding the foregoing, Landlord may lease any premises in the Center for use as (i) a restaurant located no closer than one hundred feet (100'’) from the exterior walls of the Premises, (ii) a specialty grocery store or specialty supermarket (such as a Wild Oats) located no closer than one hundred feet (100'’) from the exterior walls of the Premises, and (iii) a national video rental store which has a prohibition against the rental or sale of adult videos and which is located no closer than one hundred feet (100'’) from the exterior walls of the Premises. The total floor area of all restaurants and medical, dental, professional and business offices located within the Center shall not exceed fifteen percent (15%) of the gross leasable area of the Center. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing restrictions. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(d), Tenant's ’s remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within sixty (60) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's ’s gross sales calculated according to Tenant's ’s standard procedures in accordance with generally accepted accounting principles, and/or (ii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(d) is due to the breach of another tenant's ’s lease and Landlord is, in Tenant's ’s good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within one hundred twenty (120) days of Landlord's ’s receipt of Tenant's ’s notice. (e) Landlord and Tenant agree that (a) no auction, fire or going-out-of-business sales shall be conducted in the Center except a going-out-of-business sale conducted during the last thirty (30) days of an existing retail operation, (b) no exterior identification signs attached to any building in the Center shall be (i) flashing, moving or audible signs or (ii) signs employing exposed neon tubes, exposed ballast boxes or exposed transformers, and (c) no sidewalk sales shall be allowed in the Center.

Appears in 1 contract

Samples: Lease (Retail Ventures Inc)

USE AND OCCUPANCY. ~~(a) Tenant agrees~~ 44.01 Subject to ~~initially open~~ and operate a DSW for the retail sales of shoes and other footwear in the Premises, fully staffed and stocked and equivalent to other DSW stores operated by Tenant in the State of Ohio. The Premises during the term of this Lease shall be occupied for the operating and conducting therein of a retail shoe store or any other lawful retail purpose. Any use other than a retail shoe store shall be consistent with the then existing character of the Center, and shall not violate those exclusives and prohibited uses set forth on Exhibit "E" attached hereto and made a part hereof, which are the exclusives and prohibited uses in effect for the Center as of the date hereof, for so long as and to the extent said exclusives and prohibited uses are still in full force and effect, as well as exclusives and prohibited uses hereafter granted for (i) tenants leasing more than 15,000 square feet of space elsewhere within the Center and (ii) Ulta(3) Cosmetics, for so long as and to the extent said exclusives are still in full force and effect. (b) For so long as Tenant is continuously and regularly operating its business in the Premises, Landlord will not lease any space within the Center or permit any space within the Center (to the extent Landlord has control) to be used by any person, persons, partnership or entity who devotes five percent (5%) or more of its selling area to the sale of footwear (the "Exclusive Use"). The foregoing limitation shall not apply to typical shoe departments found in department stores, junior department stores, general merchandise and discount stores, and clothing retailers, such as Filene's Basement, Marshalls, TJ Maxx and similar type stores so long as such shoe departments are consistent with the typical shoe departments of each such retailer. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing Exclusive Use. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(b), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within thirty (30) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, (ii) to cancel this Lease on one hundred eighty (180) days written notice to Landlord, and/or (iii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(b) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within sixty (60) days of Landlord's receipt of Tenant's notice. (c) Tenant shall at all ~~times conduct its operations on the Premises in a lawful manner and shall, at Tenant's expense, comply with all laws,~~ rules, ~~orders~~regulations, laws, ordinances, ~~directions, regulations,~~ statutes and requirements of all governmental ~~authorities, now in force or which may hereafter be in force, which shall impose any duty upon Landlord or Tenant with respect to the business of Tenant~~ authorities and the ~~use, occupancy or alteration~~ Fire Insurance Rating Organization and Board of ~~the Premises. Tenant shall comply with all requirements of the Americans with Disabilities Act~~Fire Insurance Underwriters, and ~~shall be solely responsible for all alterations within the Premises in connection therewith.~~ any similar bodies having jurisdiction thereof, Tenant covenants and agrees that it shall use the Demised Premises ~~shall not be abandoned or left vacant and that only minor portions~~ solely for the operation of a retail store for sale to the ~~Premises shall be used for office or storage space in connection with~~ public of men's and/or women's (and, at Tenant's ~~business conducted~~ option, children's) apparel, shoes, accessories and related items as sold in a majority of other J. Crew (non-outlet) retail stores (or which are not similar to, but are equal or better in quality, character and price point than, the ~~Premises. Without being~~ merchandise sold in ~~default~~ a majority of ~~this Lease~~other J. Crew retail stores, ~~Tenant shall have~~ including, without limitation, any items that are so equal or better that are sold through the ~~right~~ "J. Crew" catalogues), and, at Tenant's option, the retail sale to ~~cease operating (go dark) at any time~~ the public of home furnishings, furniture and related accessories, and for whatever reason after the first (1st) lease year. Notwithstanding the foregoing, Tenant's right to vacate (go dark), shall not release or excuse the Tenant from any obligations or liabilities, including the payment of minimum rent and additional rent and no other charges, under this Lease without the express written consent of Landlord. In the event Tenant fails to (i) open and operate within ninety (90) days after delivery of the Premises or (ii) operate for one hundred twenty (120) or more consecutive days, Landlord shall have the right, effective upon thirty (30) days prior written notice to Tenant, to terminate the Lease as Landlord's sole remedy, provided that if Tenant recommences operating fully stocked in substantially all of the premises within such thirty (30) days, Landlord's termination shall be null and void. In the event Tenant fails to open and operate as provided above or shall cease operating as provided above, Landlord's sole remedy on account thereof shall be limited to the right to elect to recapture the premises and terminate the Lease, whereupon there shall be no further liability of the parties hereunder. Such termination shall be effective upon written notice to Tenant any time prior to Tenant reopening for business in the Premises. Provided, however, in the event Landlord has not so elected to recapture, Tenant shall have right to notify Landlord of Tenant's intention to reopen for business in the Premises within sixty (60) days, followed by Tenant's actually reopening for business fully stocked in substantially all of the Premises within such sixty (60) day period, which notice and actual reopening shall toll Landlord's right to recapture. (d) Landlord and Tenant agree that no space in the Center, including the Premises, shall be used as a bowling alley, deep discount retailer, theater showing either film, television or the like or live entertainment, health club, games/amusement room, indoor playground, adult bookstore, flea market, bingo parlor, bar, tavern or cocktail lounge (except if incidental to a restaurant as permitted below), restaurant (except as permitted below), adult book or adult video store (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use), adult theater or "strip-tease" establishment, automotive maintenance or automotive repair facility, warehouse, car wash, pawn shop, check cashing service, establishment selling second hand goods, flea market, entertainment or recreational facility (as defined below), training or educational facility (as defined below); the renting, leasing, selling or displaying of any boat, motor vehicle or trailer; industrial or manufacturing purposes; a carnival, circus or amusement park; a gas station, facility for the sale of paraphernalia for use with illicit drugs, funeral home, blood bank or mortuary, gambling establishment, banquet hall, auditorium or other place of public assembly, second-hand or surplus store, gun range; the sale of fireworks; a veterinary hospital or animal raising facility; the storage of goods not intended to be sold from the Center; a video rental store (except as permitted below), karate center, central laundry or dry cleaning plant, supermarket or any facility which is illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dust or vapors or loud noise or sounds or is inconsistent with community oriented shopping centerspurpose. For the purposes of this Section ~~19(d)~~44.01, ~~the phrase~~ "~~entertainment or recreational facility~~J. Crew" shall ~~include~~mean the permitted other names referred to in Section 53.10 below. 44.02 Tenant covenants that Tenant will not use or suffer or permit any person to use the Demised Premises for any unlawful purpose and to obtain and maintain at Tenant's sole cost and expense all licenses and permits from any and all governmental authorities having jurisdiction of the Demised Premises which may be necessary for the conduct of Tenant's business thereon, including, without limitation, a ~~movie or live theater or cinema~~temporary certificate of occupancy for the Building permitting the demised premises to be used for retail purposes (as more particularly provided in Section 49.03 below). Tenant further covenants to comply with all applicable laws, ~~bowling alley~~resolutions, ~~skating rink~~codes, ~~gym~~rules and regulations of any department, ~~health spa or studio~~bureau, ~~dance hall or night club, billiard or pool hall, massage parlor, health club, game parlor or video arcade (which shall be defined as any store containing more than five (5) electronic games)~~ agency or any ~~other facility operated solely~~ governmental authority having jurisdiction over the operation in, or occupancy, maintenance and use of, the Demised Premises for ~~entertainment~~ the purposes ~~(such as a "laser tag" or "virtual reality" theme operation)~~set forth herein, except ~~for a "Curves" or similar operation provided the same is not located immediately adjacent~~ to the ~~Premises~~extent Landlord may, expressly under this lease, be required to comply with same. ~~For the purposes of this Section 19(d)~~Tenant will indemnify and save Landlord harmless from and against any claims, ~~the phrase "training~~ penalties, loss, damage or educational facility" shall include, without limitation, a beauty school, nail salon, xxxxxx college, reading room, place of instruction or any other operation catering primarily to students or trainees as opposed to customers. Notwithstanding the foregoing, Landlord may lease any premises in the Center for use as (i) a restaurant located no closer than one hundred feet (100') from the exterior walls of the Premises, (ii) a specialty grocery store or specialty supermarket (such as a Wild Oats) located no closer than one hundred feet (100') from the exterior walls of the Premises, and (iii) a national video rental store which has a prohibition against the rental or sale of adult videos and which is located no closer than one hundred feet (100') from the exterior walls of the Premises. The total floor area of all restaurants and medical, dental, professional and business offices located within the Center shall not exceed fifteen percent (15%) of the gross leasable area of the Center. Any portion of the Center which is sold expense imposed by ~~Landlord during the term shall contain a deed restriction incorporating the foregoing restrictions. Landlord acknowledges that in the event~~ reason of a breach or an attempted or prospective breach of this Section 19(d), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within sixty (60) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation violation of any ~~other remedy permitted by~~ applicable law or ~~equity or by this Lease, (i) to elect to pay in lieu~~ the rules and regulations of ~~Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according~~ governmental authorities having jurisdiction thereof relating to Tenant's ~~standard procedures~~ use and occupancy, unless the obligation to comply with such law, rules or regulations shall be Landlord's obligations pursuant to the expressed provisions of this lease. 44.03 At all times that Tenant is open for business and is not in ~~accordance with generally accepted accounting principles~~default (after the giving of any applicable notice and the expiration of any applicable cure period), ~~and/or~~ Landlord shall operate (iior cause to be operated) ~~to full~~ the balance of the Building in a first-class manner, and ~~adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation~~ shall not permit the occupancy thereof for any of the uses prohibited by Article 37 thereof or for an off-track betting establishment. 44.04 Landlord represents to Tenant that attached hereto as Exhibits C and D (which by this reference are made a part hereof) are true and complete copies of the Resolution (C 910115 ZSM), duly adopted by the New York City Planning Commission on March 6, 1991 (Calendar No. 14), approving the application for the grant of a special permit (as more particularly set forth in said Resolution), and the Declaration made the 6th day of March, 1991 and referred to in said Resolution, as modified by a First Modification to Declaration dated May 8, 1991 and a Second Modification of Declaration made as of the 11th day of December, 1995, and that the special permit referred to in said Resolution and the said Declaration, as so modified, are in full force and effect. Tenant hereby acknowledges that it has actual notice of said special permit. Tenant hereby acknowledges and agrees that this lease and Tenant's rights hereunder, are subject to said Resolution and to said Declaration, as so modified. Tenant shall not violate any of the covenants, restrictions, agreements, terms or conditions of said Resolution or said Declaration, as so modified, and as said Resolution or Declaration may be ~~applicable if the violation~~ modified or further modified. Provided Tenant, and all persons and entities claiming by, through or under Tenant, have not violated any of ~~this Section 19(d) is due~~ such covenants, restrictions, agreements, terms or conditions, Landlord shall maintain said special permit and Declaration, as so modified, in full force and effect, to the ~~breach~~ extent necessary to permit Tenant to use the demised premises for the purposes expressly permitted under this lease, but provided further that Tenant is in compliance with all of ~~another tenant's~~ its obligations under this lease that are necessary to permit Tenant to use the demised premises for such purposes. In furtherance of such maintenance obligation, Landlord shall perform the maintenance and ~~Landlord is~~repair work with respect to said special permit and Declaration (as modified), that is described in ~~Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within one hundred twenty (120) days of~~ Article 4 above. Promptly after Landlord's receipt of any notice of a violation of said Resolution or said Declaration, as modified, that relates to the interior or exterior of the demised premises, Landlord shall send a copy of such notice to Tenant~~'s notice~~. (e) Landlord and Tenant agree that (a) no auction, fire or going-out-of-business sales shall be conducted in the Center except a going-out-of-business sale conducted during the last thirty (30) days of an existing retail operation, (b) no exterior identification signs attached to any building in the Center shall be (i) flashing, moving or audible signs or (ii) signs employing exposed neon tubes, exposed ballast boxes or exposed transformers, and (c) no sidewalk sales shall be allowed in the Center.

Appears in 1 contract

Samples: Lease Agreement (Sonesta International Hotels Corp)

USE AND OCCUPANCY. (a) Tenant agrees to initially open and operate a DSW ~~for the retail sales of shoes and other footwear~~ in the ~~Premises~~demised premises, fully staffed and stocked and equivalent to other DSW stores operated by Tenant in the State of ~~Ohio~~Texas. The ~~Premises~~ demised premises during the term of this Lease shall be occupied for the operating and conducting therein of a retail shoe store or any other lawful retail ~~purpose~~purpose upon obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld. Any use other than a retail shoe store shall be consistent with the then existing character of the Shopping Center, and shall not violate those exclusives ~~and prohibited uses~~ set forth on Exhibit "E" attached hereto and made a part hereof, which are the exclusives ~~and prohibited uses~~ in effect for the Shopping Center as of the date hereof, for so long as and to the extent said exclusives and prohibited uses are still in full force and effect, as well as exclusives and prohibited uses hereafter granted for (i) tenants leasing more than 15,000 square feet of space elsewhere within the Center and (ii) Ulta(3) Cosmetics, for so long as and to the extent said exclusives are still in full force and effect, as well as exclusives hereafter granted for tenants leasing more than 20,000 square feet of space elsewhere within the Shopping Center. (b) For so long as Tenant is continuously and regularly operating its business in the ~~Premises~~demised premises, Landlord will not lease any space within the Shopping Center or permit any space within the Shopping Center ~~(to the extent Landlord has control)~~ to be used by any person, persons, partnership or entity who devotes five percent (5%) or more of its selling area to the sale of ~~footwear (the "Exclusive Use")~~footwear. The foregoing limitation shall not apply to typical shoe departments found in ~~department stores~~Target, ~~junior department stores, general merchandise and discount stores, and clothing retailers, such as Filene's Basement, Marshalls, TJ Maxx~~ Marshalls and similar ~~type stores so long as such shoe departments are consistent with the typical shoe departments of each such retailer~~stores. Any portion of the Shopping Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing Exclusive Use. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(b), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within thirty (30) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, (ii) to cancel this Lease on one hundred eighty (180) days written notice to Landlord, and/or (iii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(b) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within sixty (60) days of Landlord's receipt of Tenant's noticeexclusive. (c) Tenant shall at all times conduct its operations on the ~~Premises~~ demised premises in a lawful manner and shall, at Tenant's expense, comply with all laws, rules, orders, ordinances, directions, regulations, and requirements of all governmental authorities, now in force or which may hereafter be in force, which shall impose any duty upon Landlord or Tenant with respect to the business of Tenant and the use, occupancy or alteration of the ~~Premises~~demised premises. Tenant shall comply with all requirements of the Americans with Disabilities Act, and shall be solely responsible for all alterations within the ~~Premises~~ demised premises in connection therewith. Tenant covenants and agrees that the ~~Premises~~ demised premises shall not be abandoned or left vacant and that only minor portions of the ~~Premises~~ demised premises shall be used for office or storage space in connection with Tenant's business conducted in the ~~Premises~~demised premises. Without being in default of this Lease, Tenant shall have the right to cease operating (go dark) at any time and for whatever reason after the first (1st) lease year. Notwithstanding the foregoing, Tenant's right to vacate (go dark), shall not release or excuse the Tenant from any obligations or liabilities, including the payment of minimum rent and additional rent and other charges, under this Lease without the express written consent of Landlord. In the event Tenant fails to (i) open and operate within ninety (90) days after delivery of the ~~Premises~~ demised premises or (ii) operate for one hundred twenty (120) or more consecutive days, Landlord shall have the right, effective upon thirty (30) days prior written notice to Tenant, to terminate the Lease as Landlord's sole remedy, provided that if Tenant recommences operating fully stocked in substantially all of the premises within such thirty (30) days, Landlord's termination shall be null and void. In the event Tenant fails to open and operate as provided above or shall cease operating as provided above, Landlord's sole remedy on account thereof shall be limited to the right to elect to recapture the premises and terminate the Lease, whereupon there shall be no further liability of the parties hereunder. Such termination shall be effective upon written notice to Tenant any time prior to Tenant reopening for business in the ~~Premises~~demised premises. Provided, however, in the event Landlord has not so elected to recapture, Tenant shall have right to notify Landlord of Tenant's intention to reopen for business in the ~~Premises~~ demised premises within sixty (60) days, followed by Tenant's actually reopening for business fully stocked in substantially all of the ~~Premises~~ demised premises within such sixty (60) day period, which notice and actual reopening shall toll Landlord's right to recapture. (d) Landlord and Tenant agree that no space in the Shopping Center, including the ~~Premises~~demised premises, shall be used for any immoral uses or undesirable uses. For purposes hereof, undesirable uses are hereby defined as a bowling alley, deep discount retailer, theater showing either film, television or the like or live entertainment, health club, bar, games/amusement room, indoor playground, adult ~~bookstore,~~ bookstore or flea market, . (e) Tenant agrees that the demised premises may not be used for the operation of a bingo parlor, bar, ~~tavern or~~ tavern, restaurant, cocktail ~~lounge (except if incidental to a restaurant as permitted below), restaurant (except as permitted below)~~lounge, adult book or adult video store (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use), adult theater or "strip-tease" establishment, automotive maintenance or automotive repair facility, warehouse, car wash, pawn shop, check cashing service, establishment selling second hand goods, flea market, entertainment or recreational facility (as defined below), training or educational facility (as defined below); the renting, leasing, selling or displaying of any boat, motor vehicle or trailer; industrial or manufacturing purposes; a carnival, circus or amusement park; a gas station, facility for the sale of paraphernalia for use with illicit drugs, funeral home, blood bank or mortuary, gambling establishment, banquet hall, auditorium or other place of public assembly, second-hand or surplus store, gun range; the sale of fireworks; a veterinary hospital or animal raising facility; the storage of goods not intended to be sold from the Center; a video rental ~~store (except as permitted below)~~store, karate center, central laundry or dry cleaning plant, supermarket or any facility which is illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dust or vapors or loud noise or sounds or is inconsistent with community oriented shopping centers. For the purposes of this Section ~~19(d~~20(e), the phrase "entertainment or recreational facility" shall include, without limitation, a movie or live theater or cinema, bowling alley, skating rink, gym, health spa or studio, dance hall or night club, billiard or pool hall, massage parlor, health club, game parlor or video arcade (which shall be defined as any store containing more than five (5) electronic games) or any other facility operated solely for entertainment purposes (such as a "laser tag" or "virtual reality" theme operation)~~, except for a "Curves" or similar operation provided the same is not located immediately adjacent to the Premises~~. For the purposes of this Section ~~19(d~~20(e), the phrase "training or educational facility" shall include, without limitation, a beauty school, nail salon, xxxxxx college, reading room, place of instruction or any other operation catering primarily to students or trainees as opposed to customers. Notwithstanding the foregoing, Landlord may lease any premises in the Center for use as (i) a restaurant located no closer than one hundred feet (100') from the exterior walls of the Premises, (ii) a specialty grocery store or specialty supermarket (such as a Wild Oats) located no closer than one hundred feet (100') from the exterior walls of the Premises, and (iii) a national video rental store which has a prohibition against the rental or sale of adult videos and which is located no closer than one hundred feet (100') from the exterior walls of the Premises. The total floor area of all restaurants and medical, dental, professional and business offices located within the Center shall not exceed fifteen percent (15%) of the gross leasable area of the Center. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing restrictions. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(d), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within sixty (60) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, and/or (ii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(d) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within one hundred twenty (120) days of Landlord's receipt of Tenant's notice. (e) Landlord and Tenant agree that (a) no auction, fire or going-out-of-business sales shall be conducted in the Center except a going-out-of-business sale conducted during the last thirty (30) days of an existing retail operation, (b) no exterior identification signs attached to any building in the Center shall be (i) flashing, moving or audible signs or (ii) signs employing exposed neon tubes, exposed ballast boxes or exposed transformers, and (c) no sidewalk sales shall be allowed in the Center.

Appears in 1 contract

Samples: Lease (Retail Ventures Inc)

USE AND OCCUPANCY. (a) Tenant agrees to initially open and operate a DSW for the retail sales of shoes and other footwear in the ~~Premises~~demised premises, fully staffed and stocked and equivalent to other DSW stores operated by Tenant in the State of ~~Ohio. The Premises during~~ Michigan (the ~~term of this Lease shall be occupied~~ "Permitted Use"), or for ~~the operating and conducting therein of a retail shoe store or~~ any other lawful retail ~~purpose~~use upon obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld. Any use other than a retail shoe store shall be consistent with the then existing character of the Shopping Center, and shall not violate those exclusives and prohibited uses set forth on Exhibit "ED" attached hereto and made a part hereof, which are the exclusives and prohibited uses in effect for the Shopping Center as of the date hereof, for so long as and to the extent said exclusives and prohibited uses are still in full force and effect, as well as exclusives and prohibited uses hereafter granted for ~~(i)~~ tenants leasing more than ~~15,000~~ 20,000 square feet of space elsewhere within the ~~Center and (ii) Ulta(3) Cosmetics~~Shopping Center, for so long as and to the extent said exclusives are still in full force and effect. Landlord and Tenant acknowledge that Marshall's has an exclusive on the sale of apparel in the Shopping Center. Landlord agrees that it shall indemnify and hold Tenant harmless in the event that Tenant incurs any loss, cost, damage or expense on account of any claim by Marshall's or anyone claiming under Marshall's that Tenant's use of the demised premises for the Permitted Use violates the terms and conditions of the Marshall's lease. The foregoing indemnity shall expire and be of no further force and effect at such time as Landlord delivers to Tenant a waiver by Marshall's of the foregoing Marshall's exclusive as it relates to Tenant's rights hereunder, the terms and conditions of which shall be subject to Tenant's prior written approval, which approval shall not be unreasonably withheld. (b) For so long as Tenant is continuously and regularly operating its business in the ~~Premises~~demised premises, Landlord will not lease any space within the Shopping Center or permit any space within the Shopping Center (to the extent Landlord has control) to be used by any person, persons, partnership or entity who devotes five percent (5%) or more of its selling area to the sale of footwear (the "Exclusive Use"). The foregoing limitation shall not apply to (i) typical shoe departments found in department stores, junior department stores, general merchandise and discount stores, and clothing retailers, such as ~~Filene's Basement~~Target, ~~Marshalls, TJ Maxx~~ Marshalls and similar type ~~stores so long~~ stores; (ii) the existing tenants or their successors or assigns at the Shopping Center which presently have the right to sell shoes and other footwear, as set forth on Exhibit "E"; or (iii) any existing leases at the Shopping Center as same may be renewed, extended, modified or amended (except that no such ~~shoe departments are consistent with~~ renewal, extension, modification or amendment shall grant tenant the ~~typical shoe departments~~ right to engage in the Exclusive Use where such tenant did not previously have that right). Notwithstanding the foregoing, in the event an existing tenant at the Shopping Center which presently has the right to engage in the Exclusive Use assigns or sublets its portion of ~~each~~ the Shopping Center, and the assignment or sublet is subject to Landlord's consent, Landlord will condition its consent on such ~~retailer~~assignment or sublet being subject to the Exclusive Use to the extent Landlord has the right to do so. Any portion of the Shopping Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing Exclusive Use. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(b), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within thirty (30) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, (ii) to cancel this Lease on one hundred eighty (180) days written notice to Landlord, and/or (iii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(b) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within sixty (60) days of Landlord's receipt of Tenant's notice. (c) Tenant shall at all times conduct its operations on the ~~Premises~~ demised premises in a lawful manner and shall, at Tenant's expense, comply with all laws, rules, orders, ordinances, directions, regulations, and requirements of all governmental authorities, now in force or which may hereafter be in force, which shall impose any duty upon Landlord or Tenant with respect to the business of Tenant and the use, occupancy or alteration of the ~~Premises~~demised premises. Tenant shall comply with all requirements of the Americans with Disabilities Act, and shall be solely responsible for all alterations within the ~~Premises~~ demised premises in connection therewith. Tenant covenants and agrees that the ~~Premises~~ demised premises shall not be abandoned or left vacant and that only minor portions of the ~~Premises~~ demised premises shall be used for office or storage space in connection with Tenant's business conducted in the ~~Premises~~demised premises. Without being in default of this Lease, Tenant shall have the right to cease operating (go dark) at any time and for whatever reason after the first (1st) lease year. Notwithstanding the foregoing, Tenant's right to vacate (go dark), shall not release or excuse the Tenant from any obligations or liabilities, including the payment of minimum rent and additional rent and other charges, under this Lease without the express written consent of Landlord. In the event Tenant fails to (i) open and operate within ninety (90) days after delivery of the ~~Premises~~ demised premises or (ii) operate for one hundred twenty (120) or more consecutive days, Landlord shall have the right, effective upon thirty (30) days prior written notice to Tenant, to terminate the Lease as Landlord's sole remedy, provided that if Tenant recommences operating fully stocked in substantially all of the premises within such thirty (30) days, Landlord's termination shall be null and void. In the event Tenant fails to open and operate as provided above or shall cease operating as provided above, Landlord's sole remedy on account thereof shall be limited to the right to elect to recapture the premises and terminate the Lease, whereupon there shall be no further liability of the parties hereunder. Such termination shall be effective upon written notice to Tenant any time prior to Tenant reopening for business in the ~~Premises~~demised premises. Provided, however, in the event Landlord has not so elected to recapture, Tenant shall have right to notify Landlord of Tenant's intention to reopen for business in the ~~Premises~~ demised premises within sixty (60) days, followed by Tenant's actually reopening for business fully stocked in substantially all of the ~~Premises~~ demised premises within such sixty (60) day period, which notice and actual reopening shall toll Landlord's right to recapture. (d) Landlord ~~and Tenant agree~~ agrees that during the term of this Lease no space in the ~~Center, including~~ Shopping Center (excluding areas of the ~~Premises, shall~~ Shopping Center not owned by Landlord) will be used as for a ~~bowling alley, deep discount retailer~~flea market, theater showing either film, television or the like or live ~~entertainment~~entertainment (excluding the existing theatre building), bar (except as permitted by the next sentence), game/amusement room (except as permitted by the next sentence), bowling alley, indoor playground (except as permitted by the next sentence), or adult bookstore (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use). Notwithstanding the foregoing, spaces of the Shopping Center that are more than two-hundred (200) feet away from the demised premises may be used for a restaurant, bar, game/amusement room or indoor playground (provided that such bar or game/amusement room is incidental to a restaurant) and spaces of the Shopping Center that are more than six-hundred (600) feet away from the demised premises or any space in the rear of the Shopping Center which does not share the same parking field as Tenant may be used for a health club. The aforementioned restrictions shall not apply to the rights of tenant's under existing leases at the Shopping Center as the same may be renewed, ~~games/amusement room~~extended, ~~indoor playground~~modified or amended (except that no such renewal, ~~adult bookstore~~extension, ~~flea market,~~ modification or amendment shall grant a tenant the right to engage in any of the aforementioned prohibited uses where such tenant did not previously have that right). Tenant's under existing leases at the Shopping Center as of the date hereof not subject to the aforementioned restrictions are set forth on Exhibit "F" attached hereto and hereby made a part hereof (the "Excluded Tenants"). (e) Tenant agrees that the demised premises may not be used for the operation of a bingo parlor, bar, ~~tavern or~~ tavern, restaurant, cocktail ~~lounge (except if incidental to a restaurant as permitted below), restaurant (except as permitted below)~~lounge, adult book or adult video store (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use), adult theater or "strip-tease" establishment, automotive maintenance or automotive repair facility, warehouse, car wash, pawn shop, check cashing service, establishment selling second hand goods, flea market, entertainment or recreational facility (as defined below), training or educational facility (as defined below); the renting, leasing, selling or displaying of any boat, motor vehicle or trailer; industrial or manufacturing purposes; a carnival, circus or amusement park; a gas station, facility for the sale of paraphernalia for use with illicit drugs, funeral home, blood bank or mortuary, gambling establishment, banquet hall, auditorium or other place of public assembly, second-hand or surplus store, gun range; the sale of fireworks; a veterinary hospital or animal raising facility; the storage of goods not intended to be sold from the Center; a video rental ~~store (except as permitted below)~~store, karate center, central laundry or dry cleaning plant, supermarket or any facility which is illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dust or vapors or loud noise or sounds or is inconsistent with community oriented shopping centers. For the purposes of this Section ~~19(d~~20(e), the phrase "entertainment or recreational facility" shall include, without limitation, a movie or live theater or cinema, bowling alley, skating rink, gym, health spa or studio, dance hall or night club, billiard or pool hall, massage parlor, health club, game parlor or video arcade (which shall be defined as any store containing more than five (5) electronic games) or any other facility operated solely for entertainment purposes (such as a "laser tag" or "virtual reality" theme operation)~~, except for a "Curves" or similar operation provided the same is not located immediately adjacent to the Premises~~. For the purposes of this Section ~~19(d~~20(e), the phrase "training or educational facility" shall include, without limitation, a beauty school, nail salon, xxxxxx college, reading room, place of instruction or any other operation catering primarily to students or trainees as opposed to customers. Notwithstanding the foregoing, Landlord may lease any premises in the Center for use as (i) a restaurant located no closer than one hundred feet (100') from the exterior walls of the Premises, (ii) a specialty grocery store or specialty supermarket (such as a Wild Oats) located no closer than one hundred feet (100') from the exterior walls of the Premises, and (iii) a national video rental store which has a prohibition against the rental or sale of adult videos and which is located no closer than one hundred feet (100') from the exterior walls of the Premises. The total floor area of all restaurants and medical, dental, professional and business offices located within the Center shall not exceed fifteen percent (15%) of the gross leasable area of the Center. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing restrictions. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(d), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within sixty (60) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, and/or (ii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(d) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within one hundred twenty (120) days of Landlord's receipt of Tenant's notice. (e) Landlord and Tenant agree that (a) no auction, fire or going-out-of-business sales shall be conducted in the Center except a going-out-of-business sale conducted during the last thirty (30) days of an existing retail operation, (b) no exterior identification signs attached to any building in the Center shall be (i) flashing, moving or audible signs or (ii) signs employing exposed neon tubes, exposed ballast boxes or exposed transformers, and (c) no sidewalk sales shall be allowed in the Center.

Appears in 1 contract

Samples: Lease (Retail Ventures Inc)

USE AND OCCUPANCY. (a) Tenant agrees to initially open and operate a DSW ~~for the retail sales of shoes and other footwear~~ in the ~~Premises~~demised premises, fully staffed and stocked and equivalent to other DSW stores operated by Tenant in the State of ~~Ohio~~Virginia. The ~~Premises~~ demised premises during the term of this Lease shall be occupied for the operating and conducting therein of a retail shoe store or any other lawful retail purpose~~. Any~~ ; any use other than a retail shoe store shall be consistent with the then existing character of the Shopping Center, and shall not violate ~~those~~ exclusives ~~and prohibited uses set forth on Exhibit "E" attached hereto and made a part hereof, which are the exclusives and prohibited uses~~ then in effect for the Shopping Center ~~as of the date hereof,~~ for ~~so long as and to the extent said exclusives and prohibited uses are still in full force and effect, as well as exclusives and prohibited uses hereafter granted for (i)~~ tenants leasing more than ~~15,000~~ 20,000 square feet of space ~~elsewhere within the Center and (ii) Ulta(3) Cosmetics,~~ for so long as and to the extent said exclusives are still in full force and effect. Exclusives in effect for the Shopping Center as of the date hereof are set forth on Exhibit "E" as attached hereto and made a part hereof. (b) For so long as Tenant is continuously and regularly operating its business in the ~~Premises~~demised premises, Landlord will not lease any space within the Shopping Center or permit any space within the Shopping Center ~~(to the extent Landlord has control)~~ to be used by any person, persons, partnership or entity who devotes five percent (5%) or more of its selling area to the sale of ~~footwear (the "Exclusive Use")~~footwear. The foregoing limitation shall not apply to typical shoe departments found in ~~department stores~~Target, ~~junior department stores, general merchandise and discount stores, and clothing retailers, such as Filene's Basement, Marshalls, TJ Maxx~~ Marshalls and similar ~~type stores so long as such shoe departments are consistent with the typical shoe departments of each such retailer~~stores. Any portion of the Shopping Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing Exclusive Use. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(b), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within thirty (30) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, (ii) to cancel this Lease on one hundred eighty (180) days written notice to Landlord, and/or (iii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(b) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within sixty (60) days of Landlord's receipt of Tenant's noticeexclusive. (c) Tenant shall at all times conduct its operations on the ~~Premises~~ demised premises in a lawful manner and shall, at Tenant's expense, comply with all laws, rules, orders, ordinances, directions, regulations, and requirements of all governmental authorities, now in force or which may hereafter be in force, which shall impose any duty upon Landlord or Tenant with respect to the business of Tenant and the use, occupancy or alteration of the ~~Premises~~demised premises. Tenant shall comply with all requirements of the Americans with Disabilities Act, and shall be solely responsible for all alterations within the ~~Premises~~ demised premises in connection therewith. Tenant covenants and agrees that the ~~Premises~~ demised premises shall not be abandoned or left vacant and that only minor portions of the ~~Premises~~ demised premises shall be used for office or storage space in connection with Tenant's business conducted in the ~~Premises~~demised premises. Without being in default of this Lease, Tenant shall have the right to cease operating (go dark) at any time and for whatever reason after the first (1st) lease year. Notwithstanding the foregoing, Tenant's right to vacate (go dark), shall not release or excuse the Tenant from any obligations or liabilities, including the payment of minimum rent and additional rent and other charges, under this Lease without the express written consent of Landlord. In the event Tenant fails to (i) open and operate within ninety (90) days after delivery of the ~~Premises~~ demised premises or (ii) operate for one hundred twenty (120) or more consecutive days, Landlord shall have the right, effective upon thirty (30) days prior written notice to Tenant, to terminate the Lease as Landlord's sole remedy, provided that if Tenant recommences operating fully stocked in substantially all of the premises within such thirty (30) days, Landlord's termination shall be null and void. In the event Tenant fails to open and operate as provided above or shall cease operating as provided above, Landlord's sole remedy on account thereof shall be limited to the right to elect to recapture the premises and terminate the Lease, whereupon there shall be no further liability of the parties hereunder. Such termination shall be effective upon written notice to Tenant any time prior to Tenant reopening for business in the ~~Premises~~demised premises. Provided, however, in the event Landlord has not so elected to recapture, Tenant shall have right to notify Landlord of Tenant's intention to reopen for business in the ~~Premises~~ demised premises within sixty (60) days, followed by Tenant's actually reopening for business fully stocked in substantially all of the ~~Premises~~ demised premises within such sixty (60) day period, which notice and actual reopening shall toll Landlord's right to recapture. (d) Landlord and Tenant agree that no space in the Shopping Center, including the ~~Premises~~demised premises, shall be used for any immoral uses or undesirable uses. For purposes hereof, undesirable uses are hereby defined as a bowling alley, deep discount retailer, theater showing either film, television or the like or live entertainment, health club, bar, games/amusement room, indoor playground, adult ~~bookstore,~~ bookstore or flea market, . (e) Tenant agrees that the demised premises may not be used for the operation of a bingo parlor, bar, ~~tavern or~~ tavern, restaurant, cocktail ~~lounge (except if incidental to a restaurant as permitted below), restaurant (except as permitted below)~~lounge, adult book or adult video store (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use), adult theater or "strip-tease" establishment, automotive maintenance or automotive repair facility, warehouse, car wash, pawn shop, check cashing service, establishment selling second hand goods, flea market, entertainment or recreational facility (as defined below), training or educational facility (as defined below); the renting, leasing, selling or displaying of any boat, motor vehicle or trailer; industrial or manufacturing purposes; a carnival, circus or amusement park; a gas station, facility for the sale of paraphernalia for use with illicit drugs, funeral home, blood bank or mortuary, gambling establishment, banquet hall, auditorium or other place of public assembly, second-hand or surplus store, gun range; the sale of fireworks; a veterinary hospital or animal raising facility; the storage of goods not intended to be sold from the Center; a video rental ~~store (except as permitted below)~~store, karate center, central laundry or dry cleaning plant, supermarket or any facility which is illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dust or vapors or loud noise or sounds or is inconsistent with community oriented shopping centers. For the purposes of this Section ~~19(d~~20(e), the phrase "entertainment or recreational facility" shall include, without limitation, a movie or live theater or cinema, bowling alley, skating rink, gym, health spa or studio, dance hall or night club, billiard or pool hall, massage parlor, health club, game parlor or video arcade (which shall be defined as any store containing more than five (5) electronic games) or any other facility operated solely for entertainment purposes (such as a "laser tag" or "virtual reality" theme operation)~~, except for a "Curves" or similar operation provided the same is not located immediately adjacent to the Premises~~. For the purposes of this Section ~~19(d~~20(e), the phrase "training or educational facility" shall include, without limitation, a beauty school, nail salon, ~~xxxxxx~~ barber college, reading room, place of instruction or any other ~~operation~~ opxxxxxxn catering primarily to students or trainees as opposed to customers. Notwithstanding the foregoing, Landlord may lease any premises in the Center for use as (i) a restaurant located no closer than one hundred feet (100') from the exterior walls of the Premises, (ii) a specialty grocery store or specialty supermarket (such as a Wild Oats) located no closer than one hundred feet (100') from the exterior walls of the Premises, and (iii) a national video rental store which has a prohibition against the rental or sale of adult videos and which is located no closer than one hundred feet (100') from the exterior walls of the Premises. The total floor area of all restaurants and medical, dental, professional and business offices located within the Center shall not exceed fifteen percent (15%) of the gross leasable area of the Center. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing restrictions. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(d), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within sixty (60) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, and/or (ii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(d) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within one hundred twenty (120) days of Landlord's receipt of Tenant's notice. (e) Landlord and Tenant agree that (a) no auction, fire or going-out-of-business sales shall be conducted in the Center except a going-out-of-business sale conducted during the last thirty (30) days of an existing retail operation, (b) no exterior identification signs attached to any building in the Center shall be (i) flashing, moving or audible signs or (ii) signs employing exposed neon tubes, exposed ballast boxes or exposed transformers, and (c) no sidewalk sales shall be allowed in the Center.

Appears in 1 contract

Samples: Lease (Retail Ventures Inc)

USE AND OCCUPANCY. (a) Tenant agrees to initially open and operate a ~~DSW for the retail sales of shoes and other footwear in the Premises~~Filene’s Basement as an off-price, junior department store fully staffed and ~~stocked and equivalent to other DSW stores operated by Tenant in the State of Ohio~~stocked. The Premises during the term of this Lease ~~shall~~ may be occupied for the operating and conducting therein of ~~a retail shoe store or~~ any ~~other~~ lawful retail purpose. Any use other than a retail ~~shoe~~ junior department store shall be consistent with the then existing character of the Center, and shall not violate those exclusives and prohibited uses set forth on Exhibit "“E" ” attached hereto and made a part hereof, which are the exclusives and prohibited uses in effect for the Center as of the date hereof, for so long as and to the extent said exclusives and prohibited uses are still in full force and effect, as well as exclusives and prohibited uses hereafter granted for ~~(i)~~ tenants leasing more than ~~15,000~~ fourteen thousand (14,000) square feet of space elsewhere within the ~~Center and (ii) Ulta(3) Cosmetics~~Center, for so long as and to the extent said exclusives are still in full force and effect. (b) For so long as Tenant is continuously and regularly operating its business in the Premises, Landlord will not hereafter lease any space within the Center or permit any space within the Center (to the extent Landlord has control) to be used by any person, persons, partnership or entity ~~who devotes five percent (5%) or more of its selling area to the sale of footwear (the "Exclusive Use"). The foregoing limitation shall not apply to typical shoe departments found in department stores~~as an off-price, junior department ~~stores, general merchandise and discount stores, and clothing retailers, such as Filene's Basement, Marshalls, TJ Maxx and similar type stores so long as such shoe departments are consistent with~~ store or footwear store (the ~~typical shoe departments of each such retailer~~“Exclusive Use”). Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing Exclusive Use. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(b), Tenant's ’s remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within thirty (30) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's ’s gross sales calculated according to Tenant's ’s standard procedures in accordance with generally accepted accounting principles, (ii) to cancel this Lease on ~~one hundred eighty~~ thirty (~~180~~30) days written notice to Landlord, and/or (iii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(b) is due to the breach of another tenant's ’s lease and Landlord is, in Tenant's ’s good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within sixty (60) days of Landlord's ’s receipt of Tenant's ’s notice. (c) Tenant shall at all times conduct its operations on the Premises in a lawful manner and shall, at Tenant's ’s expense, comply with all laws, rules, orders, ordinances, directions, regulations, and requirements of all governmental authorities, now in force or which may hereafter be in force, which shall impose any duty upon Landlord or Tenant with respect to the business of Tenant and the use, occupancy or alteration of the Premises. Tenant shall comply with all requirements of the Americans with Disabilities Act, and shall be solely responsible for all alterations within the Premises in connection therewith. Tenant covenants and agrees that the Premises shall not be abandoned or left vacant and that only minor portions of the Premises shall be used for office or storage space in connection with Tenant's ’s business conducted in the Premises. Without being in default of this Lease, Tenant shall have the right to cease operating (go dark) at any time and for whatever reason after the first (1st) lease year. Notwithstanding the foregoing, Tenant's ’s right to vacate (go dark), shall not release or excuse the Tenant from any obligations or liabilities, including the payment of minimum rent and additional rent and other charges, under this Lease without the express written consent of Landlord. In the event Tenant fails to (i) open and operate within ninety (90) days after delivery of the Premises or (ii) operate for one hundred twenty (120) or more consecutive days, Landlord shall have the right, effective upon thirty (30) days prior written notice to Tenant, to terminate the Lease as Landlord's ’s sole remedy, provided that if Tenant recommences operating fully stocked in substantially all of the premises within such thirty (30) days, Landlord's ’s termination shall be null and void. In the event Tenant fails to open and operate as provided above or shall cease operating as provided above, Landlord's ’s sole remedy on account thereof shall be limited to the right to elect to recapture the premises and terminate the Lease, whereupon there shall be no further liability of the parties hereunder. Such termination shall be effective upon written notice to Tenant any time prior to Tenant reopening for business in the Premises. Provided, however, in the event Landlord has not so elected to recapture, Tenant shall have right to notify Landlord of Tenant's ’s intention to reopen for business in the Premises within sixty (60) days, followed by Tenant's ’s actually reopening for business fully stocked in substantially all of the Premises within such sixty (60) day period, which notice and actual reopening shall toll Landlord's ’s right to recapture. (d) Landlord and Tenant agree that no space in the Center, including the Premises, shall be used as a bowling alley, ~~deep discount retailer,~~ theater showing either film, television or the like or live entertainment, health club, bar, games/amusement room, indoor playground, adult bookstore, flea market, bingo parlor, bar, ~~tavern or~~ tavern, restaurant, cocktail ~~lounge (except if incidental to a restaurant as permitted below), restaurant (except as permitted below)~~lounge, adult book or adult video store (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use), adult theater or "“strip-tease" ” establishment, automotive maintenance or automotive repair facility, warehouse, car wash, pawn shop, check cashing service, establishment selling second hand goods, flea market, entertainment or recreational facility (as defined below), training or educational facility (as defined below); the renting, leasing, selling or displaying of any boat, motor vehicle or trailer; industrial or manufacturing purposes; a carnival, circus or amusement park; a gas station, facility for the sale of paraphernalia for use with illicit drugs, funeral home, blood bank or mortuary, gambling establishment, banquet hall, auditorium or other place of public assembly, second-hand or surplus store, gun range; the sale of fireworks; a veterinary hospital or animal raising facility; the storage of goods not intended to be sold from the Center; a video rental ~~store (except as permitted below)~~store, karate center, central laundry or dry cleaning plant, supermarket or any facility which is illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dust or vapors or loud noise or sounds or is inconsistent with community oriented shopping centers. For the purposes of this Section 19(d), the phrase "“entertainment or recreational facility" ” shall include, without limitation, a movie or live theater or cinema, bowling alley, skating rink, gym, health spa or studio, dance hall or night club, billiard or pool hall, massage parlor, health club, game parlor or video arcade (which shall be defined as any store containing more than five (5) electronic games) or any other facility operated solely for entertainment purposes (such as a "“laser tag" ” or "“virtual reality" ” theme operation)~~, except for a "Curves" or similar operation provided the same is not located immediately adjacent to the Premises~~. For the purposes of this Section 19(d), the phrase "“training or educational facility" ” shall include, without limitation, a beauty school, nail salon, ~~xxxxxx~~ bxxxxx college, reading room, place of instruction or any other operation catering primarily to students or trainees as opposed to customers. Notwithstanding the foregoing, Landlord may lease any premises in the Center for use as (i) a restaurant located no closer than one hundred feet (100') from the exterior walls of the Premises, (ii) a specialty grocery store or specialty supermarket (such as a Wild Oats) located no closer than one hundred feet (100') from the exterior walls of the Premises, and (iii) a national video rental store which has a prohibition against the rental or sale of adult videos and which is located no closer than one hundred feet (100') from the exterior walls of the Premises. The total floor area of all restaurants and medical, dental, professional and business offices located within the Center shall not exceed ~~fifteen~~ ten percent (1510%) of the gross leasable area of the Center. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing restrictions. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(d), Tenant's ’s remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within sixty (60) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's ’s gross sales calculated according to Tenant's ’s standard procedures in accordance with generally accepted accounting principles, and/or (ii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(d) is due to the breach of another tenant's ’s lease and Landlord is, in Tenant's ’s good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within one hundred twenty (120) days of Landlord's ’s receipt of Tenant's ’s notice. (e) Landlord and Tenant agree that (a) no auction, fire or going-out-of-business sales shall be conducted in the Center except a going-out-of-business sale conducted during the last thirty (30) days of an existing retail operation, (b) no exterior identification signs attached to any building in the Center shall be (i) flashing, moving or audible signs or (ii) signs employing exposed neon tubes, exposed ballast boxes or exposed transformers, and (c) no sidewalk sales shall be allowed in the Center.

Appears in 1 contract

Samples: Lease (Retail Ventures Inc)

USE AND OCCUPANCY. (a) Tenant agrees to initially open and operate a DSW for the retail sales of shoes and other footwear in the ~~Premises~~demised premises, fully staffed and stocked and equivalent to other DSW stores operated by Tenant in the State of ~~Ohio. The Premises during~~ Washington (the ~~term of this Lease shall be occupied~~ “Permitted Use”), or for ~~the operating and conducting therein of a retail shoe store or~~ any other lawful retail ~~purpose~~use upon obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld. Any use other than a retail shoe store shall be consistent with the then existing character of the Shopping Center, and shall not violate those exclusives and prohibited uses set forth on Exhibit "ED" attached hereto and made a part hereof, which are the exclusives and prohibited uses in effect for the Shopping Center as of the date hereof, for so long as and to the extent said exclusives and prohibited uses are still in full force and effect, as well as exclusives and prohibited uses hereafter granted for ~~(i)~~ tenants leasing more than 15,000 square feet of space elsewhere within the ~~Center and (ii) Ulta(3) Cosmetics~~Shopping Center, for so long as and to the extent said exclusives are still in full force and effect. In connection with the use exclusives and prohibited uses set forth on Exhibit "D", Landlord (i) acknowledges that Tenant is not leasing space in Buildings H, F or L as identified and described in the use exclusive for Old Navy, (ii) has not signed a lease with TJX as of the date hereof and agrees that upon executing any such lease will provide that DSW is carved-out as an exception to any use exclusive granted to such tenant, and (iii) Landlord shall indemnify, defend and hold harmless Tenant, Tenant’s officers, directors, employees and agents against any and all damages, claims and liabilities arising from any claim by Nordstrom Rack that Tenant is operating in violation of the use exclusive granted to such tenant. (b) For so long as Tenant is continuously and regularly operating its business in the ~~Premises~~demised premises, Landlord will not lease any space within the Shopping Center or permit any space within the Shopping Center (to the extent Landlord has control) to be used by any person, persons, partnership or entity who devotes ~~five~~ ten percent (510%) or more of its selling area to the sale of footwear (the "“Exclusive Use"”). The foregoing limitation shall not apply to ~~typical~~ (i) shoe departments found in department stores, junior department stores, general merchandise and discount ~~stores, and clothing retailers,~~ department stores such as ~~Filene's Basement~~Target, Marshalls, ~~TJ Maxx~~ TJX and ~~similar type stores~~ Kohls provided that such tenants are operating their shoe department consistent with their national prototypical shoe department; and (ii) the existing tenants or their successors or assigns at the Shopping Center which presently have the right to sell shoes and other footwear, as set forth on Exhibit "E", so long as such tenants are operating their prototypical shoe ~~departments are~~ department consistent with their national prototypical shoe department. Notwithstanding the ~~typical shoe departments~~ foregoing, in the event an existing tenant at the Shopping Center which presently has the right to engage in the Exclusive Use assigns or sublets its portion of ~~each~~ the Shopping Center, and the assignment or sublet is subject to Landlord’s consent, Landlord will condition its consent on such ~~retailer~~assignment or sublet being subject to the Exclusive Use to the extent Landlord has the right to do so. Any portion of the Shopping Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing Exclusive Use. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(b), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within thirty (30) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, (ii) to cancel this Lease on one hundred eighty (180) days written notice to Landlord, and/or (iii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(b) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within sixty (60) days of Landlord's receipt of Tenant's notice. (c) Tenant shall at all times conduct its operations on the ~~Premises~~ demised premises in a lawful manner and shall, at Tenant's expense, comply with all laws, rules, orders, ordinances, directions, regulations, and requirements of all governmental authorities, now in force or which may hereafter be in force, which shall impose any duty upon Landlord or Tenant with respect to the business of Tenant and the use, occupancy or alteration of the ~~Premises~~demised premises. Tenant shall comply with all requirements of the Americans with Disabilities Act, and shall be solely responsible for all alterations within the ~~Premises~~ demised premises in connection therewith. Tenant covenants and agrees that the ~~Premises~~ demised premises shall not be abandoned or left vacant and that only minor portions of the ~~Premises~~ demised premises shall be used for office or storage space in connection with Tenant's business conducted in the ~~Premises~~demised premises. Without being in default of this Lease, Tenant shall have the right to cease operating (go dark) at any time and for whatever reason after the first (1st) lease year. Notwithstanding the foregoing, Tenant's ’s right to vacate (go dark), shall not release or excuse the Tenant from any obligations or liabilities, including the payment of minimum rent and additional rent and other charges, under this Lease without the express written consent of Landlord. In the event Tenant fails to (i) open and operate within ninety (90) days after delivery of the ~~Premises~~ demised premises or (ii) operate for one hundred twenty (120) or more consecutive days, Landlord shall have the right, effective upon thirty (30) days prior written notice to Tenant, to terminate the Lease as Landlord's ’s sole remedy, provided that if Tenant recommences operating fully stocked in substantially all of the premises within such thirty (30) days, Landlord's ’s termination shall be null and void. In the event Tenant fails to open and operate as provided above or shall cease operating as provided above, Landlord's ’s sole remedy on account thereof shall be limited to the right to elect to recapture the premises and terminate the Lease, whereupon there shall be no further liability of the parties hereunder. Such termination shall be effective upon written notice to Tenant any time prior to Tenant reopening for business in the ~~Premises~~demised premises. Provided, however, in the event Landlord has not so elected to recapture, Tenant shall have right to notify Landlord of Tenant's ’s intention to reopen for business in the ~~Premises~~ demised premises within sixty (60) days, followed by Tenant's ’s actually reopening for business fully stocked in substantially all of the ~~Premises~~ demised premises within such sixty (60) day period, which notice and actual reopening shall toll Landlord's ’s right to recapture. (d) Landlord ~~and Tenant agree~~ agrees that during the term of this Lease no space in the ~~Center, including~~ Shopping Center (excluding areas of the ~~Premises, shall~~ Shopping Center not owned by Landlord) will be used as for a ~~bowling alley, deep discount retailer~~flea market, theater showing either film, television or the like or live entertainment, ~~health club, games/amusement room, indoor playground, adult bookstore, flea market, bingo parlor, bar, tavern or cocktail lounge (except if incidental to a restaurant as permitted below), restaurant~~ bar (except as permitted below), game/amusement room (except as permitted below), bowling alley, indoor playground (except as permitted below), or adult bookstore (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use). Landlord agrees that during the term of this Lease the spaces identified on the site plan as “Restaurant-Not Permitted” shall not be used as a restaurant, bar, or any establishment selling food products including but not limited to a coffee shop, candy store, bagel store, ice cream store or any fast food/sandwich shop establishment. Landlord agrees that during the term of this Lease the spaces identified on the site plan as “Health Club-Not Permitted” shall not be used as a health club, gym, yoga or fitness studio, karate studio, or weight loss clinic. In addition to the foregoing, Landlord and Tenant agree that space outside of the “Restaurant-Not Permitted” area may be used as a bar, game/amusement room or indoor playground provided that such uses are incidental to a restaurant use. The aforementioned restrictions shall not apply to the rights of tenant’s under existing leases at the Shopping Center as the same may be renewed, extended, modified or amended (except that no such renewal, extension, modification or amendment shall grant a tenant the right to engage in any of the aforementioned prohibited uses where such tenant did not previously have that right). (e) Tenant agrees that the demised premises may not be used for the operation of a bingo parlor, bar, tavern, restaurant, cocktail lounge, adult book or adult video store (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use), adult theater or "strip-tease" establishment, automotive maintenance or automotive repair facility, warehouse, car wash, pawn shop, check cashing service, establishment selling second hand goods, flea market, entertainment or recreational facility (as defined below), training or educational facility (as defined below); the renting, leasing, selling or displaying of any boat, motor vehicle or trailer; industrial or manufacturing purposes; a carnival, circus or amusement park; a gas station, facility for the sale of paraphernalia for use with illicit drugs, funeral home, blood bank or mortuary, gambling establishment, banquet hall, auditorium or other place of public assembly, second-hand or surplus store, gun range; the sale of fireworks; a veterinary hospital or animal raising facility; the storage of goods not intended to be sold from the Center; a video rental ~~store (except as permitted below)~~store, karate center, central laundry or dry cleaning plant, supermarket or any facility which is illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dust or vapors or loud noise or sounds or is inconsistent with community oriented shopping centers. For the purposes of this Section ~~19(d~~20(e), the phrase "entertainment or recreational facility" shall include, without limitation, a movie or live theater or cinema, bowling alley, skating rink, gym, health spa or studio, dance hall or night club, billiard or pool hall, massage parlor, health club, game parlor or video arcade (which shall be defined as any store containing more than five (5) electronic games) or any other facility operated solely for entertainment purposes (such as a "laser tag" or "virtual reality" theme operation)~~, except for a "Curves" or similar operation provided the same is not located immediately adjacent to the Premises~~. For the purposes of this Section ~~19(d~~20(e), the phrase "training or educational facility" shall include, without limitation, a beauty school, nail salon, xxxxxx college, reading room, place of instruction or any other operation catering primarily to students or trainees as opposed to customers. Notwithstanding the foregoing, Landlord may lease any premises in the Center for use as (i) a restaurant located no closer than one hundred feet (100') from the exterior walls of the Premises, (ii) a specialty grocery store or specialty supermarket (such as a Wild Oats) located no closer than one hundred feet (100') from the exterior walls of the Premises, and (iii) a national video rental store which has a prohibition against the rental or sale of adult videos and which is located no closer than one hundred feet (100') from the exterior walls of the Premises. The total floor area of all restaurants and medical, dental, professional and business offices located within the Center shall not exceed fifteen percent (15%) of the gross leasable area of the Center. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing restrictions. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(d), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within sixty (60) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, and/or (ii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(d) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within one hundred twenty (120) days of Landlord's receipt of Tenant's notice. (e) Landlord and Tenant agree that (a) no auction, fire or going-out-of-business sales shall be conducted in the Center except a going-out-of-business sale conducted during the last thirty (30) days of an existing retail operation, (b) no exterior identification signs attached to any building in the Center shall be (i) flashing, moving or audible signs or (ii) signs employing exposed neon tubes, exposed ballast boxes or exposed transformers, and (c) no sidewalk sales shall be allowed in the Center.

Appears in 1 contract

Samples: Lease (DSW Inc.)

USE AND OCCUPANCY. (a) Tenant agrees to initially open and operate a DSW for the retail sales of shoes and other footwear in the ~~Premises~~demised premises, fully staffed and stocked and equivalent to other DSW stores operated by Tenant in the State of ~~Ohio. The Premises during~~ Washington (the ~~term of this Lease shall be occupied~~ “Permitted Use”), or for ~~the operating and conducting therein of a retail shoe store or~~ any other lawful retail ~~purpose~~use upon obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld. Any use other than a retail shoe store shall be consistent with the then existing character of the Shopping Center, and shall not violate those exclusives and prohibited uses set forth on Exhibit ~~"E"~~ “D” attached hereto and made a part hereof, which are the exclusives and prohibited uses in effect for the Shopping Center as of the date hereof, for so long as and to the extent said exclusives and prohibited uses are still in full force and effect, as well as exclusives and prohibited uses hereafter granted for ~~(i)~~ tenants leasing more than 15,000 square feet of space elsewhere within the ~~Center and (ii) Ulta(3) Cosmetics~~Shopping Center, for so long as and to the extent said exclusives are still in full force and effect. In connection with the use exclusives and prohibited uses set forth on Exhibit “D”, Landlord (i) acknowledges that Tenant is not leasing space in Buildings H, F or L as identified and described in the use exclusive for Old Navy, (ii) has not signed a lease with TJX as of the date hereof and agrees that upon executing any such lease will provide that DSW is carved-out as an exception to any use exclusive granted to such tenant, and (iii) Landlord shall indemnify, defend and hold harmless Tenant, Tenant’s officers, directors, employees and agents against any and all damages, claims and liabilities arising from any claim by Nordstrom Rack that Tenant is operating in violation of the use exclusive granted to such tenant. (b) For so long as Tenant is continuously and regularly operating its business in the ~~Premises~~demised premises, Landlord will not lease any space within the Shopping Center or permit any space within the Shopping Center (to the extent Landlord has control) to be used by any person, persons, partnership or entity who devotes ~~five~~ ten percent (510%) or more of its selling area to the sale of footwear (the "“Exclusive Use"”). The foregoing limitation shall not apply to ~~typical~~ (i) shoe departments found in department stores, junior department stores, general merchandise and discount ~~stores, and clothing retailers,~~ department stores such as ~~Filene's Basement~~Target, Marshalls, ~~TJ Maxx~~ TJX and ~~similar type stores~~ Kohls provided that such tenants are operating their shoe department consistent with their national prototypical shoe department; and (ii) the existing tenants or their successors or assigns at the Shopping Center which presently have the right to sell shoes and other footwear, as set forth on Exhibit “E”, so long as such tenants are operating their prototypical shoe ~~departments are~~ department consistent with their national prototypical shoe department. Notwithstanding the ~~typical shoe departments~~ foregoing, in the event an existing tenant at the Shopping Center which presently has the right to engage in the Exclusive Use assigns or sublets its portion of ~~each~~ the Shopping Center, and the assignment or sublet is subject to Landlord’s consent, Landlord will condition its consent on such ~~retailer~~assignment or sublet being subject to the Exclusive Use to the extent Landlord has the right to do so. Any portion of the Shopping Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing Exclusive Use. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(b), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within thirty (30) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, (ii) to cancel this Lease on one hundred eighty (180) days written notice to Landlord, and/or (iii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(b) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within sixty (60) days of Landlord's receipt of Tenant's notice. (c) Tenant shall at all times conduct its operations on the ~~Premises~~ demised premises in a lawful manner and shall, at Tenant's ’s expense, comply with all laws, rules, orders, ordinances, directions, regulations, and requirements of all governmental authorities, now in force or which may hereafter be in force, which shall impose any duty upon Landlord or Tenant with respect to the business of Tenant and the use, occupancy or alteration of the ~~Premises~~demised premises. Tenant shall comply with all requirements of the Americans with Disabilities Act, and shall be solely responsible for all alterations within the ~~Premises~~ demised premises in connection therewith. Tenant covenants and agrees that the ~~Premises~~ demised premises shall not be abandoned or left vacant and that only minor portions of the ~~Premises~~ demised premises shall be used for office or storage space in connection with Tenant's ’s business conducted in the ~~Premises~~demised premises. Without being in default of this Lease, Tenant shall have the right to cease operating (go dark) at any time and for whatever reason after the first (1st) lease year. Notwithstanding the foregoing, Tenant's ’s right to vacate (go dark), shall not release or excuse the Tenant from any obligations or liabilities, including the payment of minimum rent and additional rent and other charges, under this Lease without the express written consent of Landlord. In the event Tenant fails to (i) open and operate within ninety (90) days after delivery of the ~~Premises~~ demised premises or (ii) operate for one hundred twenty (120) or more consecutive days, Landlord shall have the right, effective upon thirty (30) days prior written notice to Tenant, to terminate the Lease as Landlord's ’s sole remedy, provided that if Tenant recommences operating fully stocked in substantially all of the premises within such thirty (30) days, Landlord's ’s termination shall be null and void. In the event Tenant fails to open and operate as provided above or shall cease operating as provided above, Landlord's ’s sole remedy on account thereof shall be limited to the right to elect to recapture the premises and terminate the Lease, whereupon there shall be no further liability of the parties hereunder. Such termination shall be effective upon written notice to Tenant any time prior to Tenant reopening for business in the ~~Premises~~demised premises. Provided, however, in the event Landlord has not so elected to recapture, Tenant shall have right to notify Landlord of Tenant's ’s intention to reopen for business in the ~~Premises~~ demised premises within sixty (60) days, followed by Tenant's ’s actually reopening for business fully stocked in substantially all of the ~~Premises~~ demised premises within such sixty (60) day period, which notice and actual reopening shall toll Landlord's ’s right to recapture. (d) Landlord ~~and Tenant agree~~ agrees that during the term of this Lease no space in the ~~Center, including~~ Shopping Center (excluding areas of the ~~Premises, shall~~ Shopping Center not owned by Landlord) will be used as for a ~~bowling alley, deep discount retailer~~flea market, theater showing either film, television or the like or live entertainment, ~~health club, games/amusement room, indoor playground, adult bookstore, flea market, bingo parlor, bar, tavern or cocktail lounge (except if incidental to a restaurant as permitted below), restaurant~~ bar (except as permitted below), game/amusement room (except as permitted below), bowling alley, indoor playground (except as permitted below), or adult bookstore (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use). Landlord agrees that during the term of this Lease the spaces identified on the site plan as “Restaurant-Not Permitted” shall not be used as a restaurant, bar, or any establishment selling food products including but not limited to a coffee shop, candy store, bagel store, ice cream store or any fast food/sandwich shop establishment. Landlord agrees that during the term of this Lease the spaces identified on the site plan as “Health Club-Not Permitted” shall not be used as a health club, gym, yoga or fitness studio, karate studio, or weight loss clinic. In addition to the foregoing, Landlord and Tenant agree that space outside of the “Restaurant-Not Permitted” area may be used as a bar, game/amusement room or indoor playground provided that such uses are incidental to a restaurant use. The aforementioned restrictions shall not apply to the rights of tenant’s under existing leases at the Shopping Center as the same may be renewed, extended, modified or amended (except that no such renewal, extension, modification or amendment shall grant a tenant the right to engage in any of the aforementioned prohibited uses where such tenant did not previously have that right). (e) Tenant agrees that the demised premises may not be used for the operation of a bingo parlor, bar, tavern, restaurant, cocktail lounge, adult book or adult video store (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use), adult theater or "“strip-tease" ” establishment, automotive maintenance or automotive repair facility, warehouse, car wash, pawn shop, check cashing service, establishment selling second hand goods, flea market, entertainment or recreational facility (as defined below), training or educational facility (as defined below); the renting, leasing, selling or displaying of any boat, motor vehicle or trailer; industrial or manufacturing purposes; a carnival, circus or amusement park; a gas station, facility for the sale of paraphernalia for use with illicit drugs, funeral home, blood bank or mortuary, gambling establishment, banquet hall, auditorium or other place of public assembly, second-hand or surplus store, gun range; the sale of fireworks; a veterinary hospital or animal raising facility; the storage of goods not intended to be sold from the Center; a video rental ~~store (except as permitted below)~~store, karate center, central laundry or dry cleaning plant, supermarket or any facility which is illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dust or vapors or loud noise or sounds or is inconsistent with community oriented shopping centers. For the purposes of this Section ~~19(d~~20(e), the phrase "“entertainment or recreational facility" ” shall include, without limitation, a movie or live theater or cinema, bowling alley, skating rink, gym, health spa or studio, dance hall or night club, billiard or pool hall, massage parlor, health club, game parlor or video arcade (which shall be defined as any store containing more than five (5) electronic games) or any other facility operated solely for entertainment purposes (such as a "“laser tag" ” or "“virtual reality" ” theme operation)~~, except for a "Curves" or similar operation provided the same is not located immediately adjacent to the Premises~~. For the purposes of this Section ~~19(d~~20(e), the phrase "“training or educational facility" ” shall include, without limitation, a beauty school, nail salon, xxxxxx college, reading room, place of instruction or any other operation catering primarily to students or trainees as opposed to customers. Notwithstanding the foregoing, Landlord may lease any premises in the Center for use as (i) a restaurant located no closer than one hundred feet (100') from the exterior walls of the Premises, (ii) a specialty grocery store or specialty supermarket (such as a Wild Oats) located no closer than one hundred feet (100') from the exterior walls of the Premises, and (iii) a national video rental store which has a prohibition against the rental or sale of adult videos and which is located no closer than one hundred feet (100') from the exterior walls of the Premises. The total floor area of all restaurants and medical, dental, professional and business offices located within the Center shall not exceed fifteen percent (15%) of the gross leasable area of the Center. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing restrictions. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(d), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within sixty (60) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, and/or (ii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(d) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within one hundred twenty (120) days of Landlord's receipt of Tenant's notice. (e) Landlord and Tenant agree that (a) no auction, fire or going-out-of-business sales shall be conducted in the Center except a going-out-of-business sale conducted during the last thirty (30) days of an existing retail operation, (b) no exterior identification signs attached to any building in the Center shall be (i) flashing, moving or audible signs or (ii) signs employing exposed neon tubes, exposed ballast boxes or exposed transformers, and (c) no sidewalk sales shall be allowed in the Center.

Appears in 1 contract

Samples: Lease Agreement (Retail Ventures Inc)

USE AND OCCUPANCY. (a) Tenant agrees to initially open and operate a DSW ~~for the retail sales of shoes and other footwear~~ in the ~~Premises~~demised premises, fully staffed and stocked and equivalent to other DSW stores operated by Tenant in the State of ~~Ohio~~Florida. The ~~Premises~~ demised premises during the term of this Lease shall be occupied for the operating and conducting therein of a retail shoe store or any other lawful retail ~~purpose~~purpose upon obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld. Any use other than a retail shoe store shall be consistent with the then existing character of the Shopping Center, and shall not violate those exclusives ~~and prohibited uses~~ set forth on Exhibit "E" attached hereto and made a part hereof, which are the exclusives ~~and prohibited uses~~ in effect for the Shopping Center as of the date hereof, for so long as and to the extent said exclusives and prohibited uses are still in full force and effect, as well as exclusives and prohibited uses hereafter granted for (i) tenants leasing more than 15,000 square feet of space elsewhere within the Center and (ii) Ulta(3) Cosmetics, for so long as and to the extent said exclusives are still in full force and effect, as well as exclusives hereafter granted for tenants leasing more than 20,000 square feet of space elsewhere within the Shopping Center. (b) For so long as Tenant is continuously and regularly operating its business in the ~~Premises~~demised premises, Landlord will not lease any space within the Shopping Center or permit any space within the Shopping Center ~~(to the extent Landlord has control)~~ to be used by any person, persons, partnership or entity who devotes five percent (5%) or more of its selling area to the sale of footwear (the "Exclusive Use"). The foregoing limitation shall not apply to typical shoe departments found in department stores, junior department stores, general merchandise and discount stores, and clothing retailers, such as Filene's Basement, Marshalls, TJ Maxx and similar type stores so long as such shoe departments are consistent with the typical shoe departments of each such retailerfootwear. Any portion of the Shopping Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing Exclusive Use. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(b), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within thirty (30) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, (ii) to cancel this Lease on one hundred eighty (180) days written notice to Landlord, and/or (iii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(b) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within sixty (60) days of Landlord's receipt of Tenant's noticeexclusive. (c) Tenant shall at all times conduct its operations on the ~~Premises~~ demised premises in a lawful manner and shall, at Tenant's expense, comply with all laws, rules, orders, ordinances, directions, regulations, and requirements of all governmental authorities, now in force or which may hereafter be in force, which shall impose any duty upon Landlord or Tenant with respect to the business of Tenant and the use, occupancy or alteration of the ~~Premises~~demised premises. Tenant shall comply with all requirements of the Americans with Disabilities Act, and shall be solely responsible for all alterations within the ~~Premises~~ demised premises in connection therewith. Tenant covenants and agrees that the ~~Premises~~ demised premises shall not be abandoned or left vacant and that only minor portions of the ~~Premises~~ demised premises shall be used for office or storage space in connection with Tenant's business conducted in the ~~Premises~~demised premises. Without being in default of this Lease, Tenant shall have the right to cease operating (go dark) at any time and for whatever reason after the first (1st) lease year. Notwithstanding the foregoing, Tenant's right to vacate (go dark), shall not release or excuse the Tenant from any obligations or liabilities, including the payment of minimum rent and additional rent and other charges, under this Lease without the express written consent of Landlord. In the event Tenant fails to (i) open and operate within ninety (90) days after delivery of the ~~Premises~~ demised premises or (ii) operate for one hundred twenty (120) or more consecutive days, Landlord shall have the right, effective upon thirty (30) days prior written notice to Tenant, to terminate the Lease as Landlord's sole remedy, provided that if Tenant recommences operating fully stocked in substantially all of the premises within such thirty (30) days, Landlord's termination shall be null and void. In the event Tenant fails to open and operate as provided above or shall cease operating as provided above, Landlord's sole remedy on account thereof shall be limited to the right to elect to recapture the premises and terminate the Lease, whereupon there shall be no further liability of the parties hereunder. Such termination shall be effective upon written notice to Tenant any time prior to Tenant reopening for business in the ~~Premises~~demised premises. Provided, however, in the event Landlord has not so elected to recapture, Tenant shall have right to notify Landlord of Tenant's intention to reopen for business in the ~~Premises~~ demised premises within sixty (60) days, followed by Tenant's actually reopening for business fully stocked in substantially all of the ~~Premises~~ demised premises within such sixty (60) day period, which notice and actual reopening shall toll Landlord's right to recapture. (d) Landlord and Tenant agree that no space in the Shopping Center, including the ~~Premises~~demised premises, shall be used for any immoral uses or undesirable uses. For purposes hereof, undesirable uses are hereby defined as a bowling alley, deep discount retailer, theater showing either film, television or the like or live entertainment, health club, bar, games/amusement room, indoor playground, adult ~~bookstore,~~ bookstore or flea market, . (e) Tenant agrees that the demised premises may not be used for the operation of a bingo parlor, bar, ~~tavern or~~ tavern, restaurant, cocktail ~~lounge (except if incidental to a restaurant as permitted below), restaurant (except as permitted below)~~lounge, adult book or adult video store (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use), adult theater or "strip-tease" establishment, automotive maintenance or automotive repair facility, warehouse, car wash, pawn shop, check cashing service, establishment selling second hand goods, flea market, entertainment or recreational facility (as defined below), training or educational facility (as defined below); the renting, leasing, selling or displaying of any boat, motor vehicle or trailer; industrial or manufacturing purposes; a carnival, circus or amusement park; a gas station, facility for the sale of paraphernalia for use with illicit drugs, funeral home, blood bank or mortuary, gambling establishment, banquet hall, auditorium or other place of public assembly, second-hand or surplus store, gun range; the sale of fireworks; a veterinary hospital or animal raising facility; the storage of goods not intended to be sold from the Center; a video rental ~~store (except as permitted below)~~store, karate center, central laundry or dry cleaning plant, supermarket or any facility which is illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dust or vapors or loud noise or sounds or is inconsistent with community oriented shopping centers. For the purposes of this Section ~~19(d~~20(e), the phrase "entertainment or recreational facility" shall include, without limitation, a movie or live theater or cinema, bowling alley, skating rink, gym, health spa or studio, dance hall or night club, billiard or pool hall, massage parlor, health club, game parlor or video arcade (which shall be defined as any store containing more than five (5) electronic games) or any other facility operated solely for entertainment purposes (such as a "laser tag" or "virtual reality" theme operation)~~, except for a "Curves" or similar operation provided the same is not located immediately adjacent to the Premises~~. For the purposes of this Section ~~19(d~~20(e), the phrase "training or educational facility" shall include, without limitation, a beauty school, nail salon, xxxxxx college, reading room, place of instruction or any other operation catering primarily to students or trainees as opposed to customers. Notwithstanding the foregoing, Landlord may lease any premises in the Center for use as (i) a restaurant located no closer than one hundred feet (100') from the exterior walls of the Premises, (ii) a specialty grocery store or specialty supermarket (such as a Wild Oats) located no closer than one hundred feet (100') from the exterior walls of the Premises, and (iii) a national video rental store which has a prohibition against the rental or sale of adult videos and which is located no closer than one hundred feet (100') from the exterior walls of the Premises. The total floor area of all restaurants and medical, dental, professional and business offices located within the Center shall not exceed fifteen percent (15%) of the gross leasable area of the Center. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing restrictions. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(d), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within sixty (60) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, and/or (ii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(d) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within one hundred twenty (120) days of Landlord's receipt of Tenant's notice. (e) Landlord and Tenant agree that (a) no auction, fire or going-out-of-business sales shall be conducted in the Center except a going-out-of-business sale conducted during the last thirty (30) days of an existing retail operation, (b) no exterior identification signs attached to any building in the Center shall be (i) flashing, moving or audible signs or (ii) signs employing exposed neon tubes, exposed ballast boxes or exposed transformers, and (c) no sidewalk sales shall be allowed in the Center.

Appears in 1 contract

Samples: Lease (Retail Ventures Inc)

USE AND OCCUPANCY. (a) Tenant agrees to initially open and operate a DSW ~~for the retail sales of shoes and other footwear~~ Shoe Warehouse in the ~~Premises~~demised premises, fully staffed and stocked and equivalent to other DSW Shoe Warehouse stores operated by Tenant in the State of Ohio. The ~~Premises~~ demised premises during the term of this Lease shall be occupied for the operating and conducting therein of a retail shoe store or any other lawful retail ~~purpose~~purpose upon obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld. Any use other than a retail shoe store shall be consistent with the then existing character of the Shopping Center, and shall not violate those exclusives ~~and prohibited uses~~ set forth on Exhibit "E" attached hereto and made a part hereof, which are the exclusives ~~and prohibited uses~~ in effect for the Shopping Center as of the date hereof, for so long as and to the extent said exclusives and prohibited uses are still in full force and effect, as well as exclusives and prohibited uses hereafter granted for (i) tenants leasing more than 15,000 square feet of space elsewhere within the Center and (ii) Ulta(3) Cosmetics, for so long as and to the extent said exclusives are still in full force and effect, as well as exclusives hereafter granted for tenants leasing more than 20,000 square feet of space elsewhere within the Shopping Center. (b) For so long as Tenant is continuously and regularly operating its business in the ~~Premises~~demised premises, Landlord will not lease any space within the Shopping Center or permit any space within the Shopping Center ~~(to the extent Landlord has control)~~ to be used by any person, persons, partnership or entity who devotes five percent (5%) or more of its selling area to the sale of ~~footwear (the~~ footwear, except for American Signature Home, Inc. and its successors and assigns, whose use clause under its lease is listed on Exhibit "~~Exclusive Use~~F"~~). The foregoing limitation shall not apply to typical shoe departments found in department stores~~, ~~junior department stores~~attached hereto and made a part hereof, ~~general merchandise and discount stores, and clothing retailers, such as Filene's Basement, Marshalls, TJ Maxx and similar type stores~~ for so long as such ~~shoe departments are consistent with the typical shoe departments of each such retailer~~lease is in full force and effect. Any portion of the Shopping Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing Exclusive Use. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(b), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within thirty (30) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, (ii) to cancel this Lease on one hundred eighty (180) days written notice to Landlord, and/or (iii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(b) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within sixty (60) days of Landlord's receipt of Tenant's noticeexclusive. (c) Tenant shall at all times conduct its operations on the ~~Premises~~ demised premises in a lawful manner and shall, at Tenant's expense, comply with all laws, rules, orders, ordinances, directions, regulations, and requirements of all governmental authorities, now in force or which may hereafter be in force, which shall impose any duty upon Landlord or Tenant with respect to the business of Tenant and the use, occupancy or alteration of the ~~Premises~~demised premises. Tenant shall comply with all requirements of the Americans with Disabilities Act, and shall be solely responsible for all alterations within the ~~Premises~~ demised premises in connection therewith. Tenant covenants and agrees that the ~~Premises~~ demised premises shall not be abandoned or left vacant and that only minor portions of the ~~Premises~~ demised premises shall be used for office or storage space in connection with Tenant's business conducted in the ~~Premises~~demised premises. Without being in default of this Lease, Tenant shall have the right to cease operating (go dark) at any time and for whatever reason after the first (1st) lease year. Notwithstanding the foregoing, Tenant's right to vacate (go dark), shall not release or excuse the Tenant from any obligations or liabilities, including the payment of minimum rent and additional rent and other charges, under this Lease without the express written consent of Landlord. In the event Tenant fails to (i) open and operate within ninety (90) days after delivery of the ~~Premises~~ demised premises or (ii) operate for one hundred twenty (120) or more consecutive days, Landlord shall have the right, effective upon thirty (30) days prior written notice to Tenant, to terminate the Lease as Landlord's sole remedy, provided that if Tenant recommences operating fully stocked in substantially all of the premises within such thirty (30) days, Landlord's termination shall be null and void. In the event Tenant fails to open and operate as provided above or shall cease operating as provided above, Landlord's sole remedy on account thereof shall be limited to the right to elect to recapture the premises and terminate the Lease, whereupon there shall be no further liability of the parties hereunder. Such termination shall be effective upon written notice to Tenant any time prior to Tenant reopening for business in the ~~Premises~~demised premises. Provided, however, in the event Landlord has not so elected to recapture, Tenant shall have right to notify Landlord of Tenant's intention to reopen for business in the ~~Premises~~ demised premises within sixty (60) days, followed by Tenant's actually reopening for business fully stocked in substantially all of the ~~Premises~~ demised premises within such sixty (60) day period, which notice and actual reopening shall toll Landlord's right to recapture. (d) Landlord and Tenant agree that no space in the Shopping Center, including the ~~Premises~~demised premises, shall be used for any immoral uses or undesirable uses. For purposes hereof, undesirable uses are hereby defined as a bowling alley, deep discount retailer, theater showing either film, television or the like or live entertainment, health club, bar, games/amusement room, indoor playground, adult ~~bookstore,~~ bookstore or flea market, . (e) Tenant agrees that the demised premises may not be used for the operation of a bingo parlor, bar, ~~tavern or~~ tavern, restaurant, cocktail ~~lounge (except if incidental to a restaurant as permitted below), restaurant (except as permitted below)~~lounge, adult book or adult video store (defined for the purposes hereof as a store devoting ten percent (10%) or more of its floor space to offering books and/or video materials for sale or for rent which are directed to or restricted to adult customers due to sexually explicit subject matter or for any other reason making it inappropriate for general use), adult theater or "~~strip-tease~~striptease" establishment, automotive maintenance or automotive repair facility, warehouse, car wash, pawn shop, check cashing service, establishment selling second hand goods, flea market, entertainment or recreational facility (as defined below), training or educational facility (as defined below); the renting, leasing, selling or displaying of any boat, motor vehicle or trailer; industrial or manufacturing purposes; a carnival, circus or amusement park; a gas station, facility for the sale of paraphernalia for use with illicit drugs, funeral home, blood bank or mortuary, gambling establishment, banquet hall, auditorium or other place of public assembly, second-hand or surplus store, gun range; the sale of fireworks; a veterinary hospital or animal raising facility; the storage of goods not intended to be sold from the Center; a video rental ~~store (except as permitted below)~~store, karate center, central laundry or dry cleaning plant, supermarket or any facility which is illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dust or vapors or loud noise or sounds or is inconsistent with community oriented shopping centers. For the purposes of this Section ~~19(d~~20(e), the phrase "entertainment or recreational facility" shall include, without limitation, a movie or live theater or cinema, bowling alley, skating rink, gym, health spa or studio, dance hall or night club, billiard or pool hall, massage parlor, health club, game parlor or video arcade (which shall be defined as any store containing more than five (5) electronic games) or any other facility operated solely for entertainment purposes (such as a "laser tag" or "virtual reality" theme operation)~~, except for a "Curves" or similar operation provided the same is not located immediately adjacent to the Premises~~. For the purposes of this Section ~~19(d~~20(e), the phrase "training or educational facility" shall include, without limitation, a beauty school, nail salon, xxxxxx college, reading room, place of instruction or any other operation catering primarily to students or trainees as opposed to customers. Notwithstanding the foregoing, Landlord may lease any premises in the Center for use as (i) a restaurant located no closer than one hundred feet (100') from the exterior walls of the Premises, (ii) a specialty grocery store or specialty supermarket (such as a Wild Oats) located no closer than one hundred feet (100') from the exterior walls of the Premises, and (iii) a national video rental store which has a prohibition against the rental or sale of adult videos and which is located no closer than one hundred feet (100') from the exterior walls of the Premises. The total floor area of all restaurants and medical, dental, professional and business offices located within the Center shall not exceed fifteen percent (15%) of the gross leasable area of the Center. Any portion of the Center which is sold by Landlord during the term shall contain a deed restriction incorporating the foregoing restrictions. Landlord acknowledges that in the event of a breach or an attempted or prospective breach of this Section 19(d), Tenant's remedies at law would be inadequate. Therefore, in any such event, if such breach is not cured within sixty (60) days after written notice from Tenant to Landlord, Tenant shall be entitled, at its option and without limitation of any other remedy permitted by law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and percentage rent due under this Lease two percent (2%) of Tenant's gross sales calculated according to Tenant's standard procedures in accordance with generally accepted accounting principles, and/or (ii) to full and adequate relief by temporary or permanent injunction. Notwithstanding the foregoing, the remedy of lease cancellation shall not be applicable if the violation of this Section 19(d) is due to the breach of another tenant's lease and Landlord is, in Tenant's good faith judgment, diligently pursuing appropriate legal proceedings to halt the violation and such violation is so halted within one hundred twenty (120) days of Landlord's receipt of Tenant's notice. (e) Landlord and Tenant agree that (a) no auction, fire or going-out-of-business sales shall be conducted in the Center except a going-out-of-business sale conducted during the last thirty (30) days of an existing retail operation, (b) no exterior identification signs attached to any building in the Center shall be (i) flashing, moving or audible signs or (ii) signs employing exposed neon tubes, exposed ballast boxes or exposed transformers, and (c) no sidewalk sales shall be allowed in the Center.

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Samples: Lease (Retail Ventures Inc)

Common use of USE AND OCCUPANCY Clause in Contracts