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Exhibit 10.56
AGREEMENT OF LEASE
LANDLORD:
JUBILEE LIMITED PARTNERSHIP,
an Ohio limited liability partnership
TENANT:
VALUE CITY DEPARTMENT STORES, INC.
an Ohio Corporation
PREMISES:
Xxxxx Xxxx Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, Xxxxxxxx
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AGREEMENT OF LEASE
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THIS AGREEMENT OF LEASE made as of _______________, 1998, between JUBILEE
LIMITED PARTNERSHIP, an Ohio limited liability partnership (the "Landlord"), and
VALUE CITY DEPARTMENT STORES, INC., an Ohio Corporation (the "Tenant").
Section 1. Basic Lease Provisions and Premises
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(a) Basic Lease Provisions.
(i) Name of Shopping Center: River Oaks West Shopping Center
(ii) Leasable Area of Premises: 102,120 s.f.
(iii) Gross Floor Area of Shopping Center: 240,202 s.f.
(iv) Primary Lease Term: Fifteen (15) years
(v) Annual Fixed Rent: 1-5 $612,720.00
6-10 $663,780.00
11-15 $714,840.00
(vi) Monthly Installment of Fixed Rent:
1-5 $51,060.00
6-10 $55,315.00
11-15 $59,570.00
(vii) Renewal Lease Terms: Three (3) terms of five (5) years each.
(viii) Annual Fixed Rent During Renewal Term:
16-20 $765,900.00
21-25 $816,960.00
26-30 $868,020.00
(ix) Monthly Installment of Fixed Rent During Renewal Terms:
16-20 $63,825.00
21-25 $68,080.00
26-30 $72,335.00
(b) Landlord hereby leases to Tenant, and Tenant hereby rents from
Landlord, the premises containing approximately 102,120 square feet and known as
River Oaks West and outlined in red on the site plan attached to this Lease as
Exhibit "A" and made a part hereof (the "Site Plan"), together with all
improvements now or to be constructed thereon, and all easements, rights,
privileges and interests appurtenant thereto (collectively referred to as the
"Premises"). The Premises constitute a portion of a shopping center known as
River Oaks West (the "Center"). Landlord represents and warrants to Tenant that
the Premises and Center are substantially shown on the Site Plan, including all
rights of access, ingress and egress, at the point shown on the Site Plan, in,
to, from and over any and all streets, ways or alleys adjoining the Center. The
real property comprising the Center is more particularly described on Exhibit
"B", attached hereto and made a part hereof.
(c) Landlord also grants to Tenant, its customers, employees, licensees,
invitees and subtenants a non-exclusive easement in common with the other
tenants of the Center for the use of all parking areas, driveways, outdoor
lighting facilities, sidewalks, service areas, landscaped areas (including all
landscaped areas adjacent to the Premises) footpaths, corridors and the other
areas intended for the non-exclusive use of the tenants of the Center
(collectively referred to as the "Common Areas"). Tenant shall also have the
right to use, on a non-exclusive basis with other tenants of the Center, the
areas, if any, on real estate adjacent to the Center and shown on the Site Plan.
Landlord covenants, represents and warrants that, during the Lease term, there
shall be reasonably adequate sidewalks, driveways and roadways for automotive
and pedestrian ingress and egress to and from Tenant's Premises and adjacent
public streets and highways.
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Section 2. Site Plan
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The Landlord covenants that the Center is or shall be developed in
accordance with the Site Plan and that it shall be used as a retail shopping
center throughout the term of this Lease. The Landlord may not modify or replace
the Site Plan without the prior written consent of the Tenant, which consent
shall not be unreasonably withheld or delayed. No such modification or
replacement shall (i) reduce the ratio of parking spaces to gross leaseable area
of buildings in the Center shown on the Site Plan, (ii) reduce or rearrange the
parking spaces cross-hatched on the Site Plan, (ii) interfere with truck access
to the loading doors of the Premises, (iv) interfere with customer access to the
Premises or the parking areas closest to the Premises, (v) interfere with the
visibility of the Premises from the roads providing direct access to the Center
or (vi) result in the construction of any buildings in the area designated "No
Build Area" on the Site Plan.
Section 3. Term
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(a) Subject to the terms and provisions of Section _____ hereof, the
"Commencement Date" of this Lease shall be the earlier of (i) the date on which
Tenant is open for business or (ii) sixty (60) days after possession of the
Premises.
(b) The construction term (the "Construction Term") of this Lease shall
begin on the Commencement Date and end on the "Rent Commencement Date" (as
hereinafter defined). During the Construction Term, the Tenant shall proceed to
renovate the Premises and to install and construct in the Premises certain
additional improvements, as provided in Section _____ hereof.
(c) The initial term (the "Initial Term") of the Lease shall (i) commence
on the date on which the Tenant opens for business in the Premises, but in no
event later than sixty (60) days after Tenant has taken possession of the
premises (the "Rent Commencement Date") and (ii) end on the last day of the
fifteenth (15) full Lease Year. The term "Lease Year" shall mean a period of
twelve consecutive calendar months. The first Lease Year during the term hereof
shall commence on the first day of the first February following the Rent
Commencement Date. Each subsequent Lease Year shall begin on the anniversary of
the first Lease Year.
(d) The Tenant shall have three (3) consecutive separate options to extend
the term of this Lease for successive renewal terms of five (5) Lease Years
each. The Tenant may exercise each such renewal option by giving written notice
to the Landlord at least six (6) months prior to the end of the then current
term or renewal term; provided, however, that if the Tenant fails to exercise
any renewal term option, the Tenant's rights to exercise the option shall not
expire until fifteen (15) days after written notice to the Tenant from the
Landlord of the Tenant's failure to exercise said option.
(e) The Construction Term, Initial Term and any renewal terms are
hereinafter collectively referred to as the "term".
(f) Beginning on the date of this Lease and ending on the Commencement
Date, the Tenant, its employees and agents shall have the right to enter the
Premises or any part thereof at reasonable times during regular business hours
for the purpose of making such inspections as the Tenant may deem reasonably
necessary; provided that (i) such entry does not interfere with the business, if
any, being operated in the Premises, and (ii) the Tenant shall restore the
Premises to substantially the same condition as existed on the date of this
Lease. In consideration of the Tenant's right to inspect the Premises, the
Tenant agrees to indemnify, defend and hold the Landlord harmless from any and
all loss, damage, claims, costs, demands or expenses (including reasonable
attorney's fees and litigation costs) resulting from such entry on the Premises
by the Tenant or its agents.
Section 4. Rent
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(a) During the Initial Term and any renewal term hereof, the Tenant agrees
to pay to the Landlord annual base rent in the amounts and for the periods set
forth below.
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Annual Rent
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Period Per Sq. Ft. Annual Rent Monthly Rent
Years 1-5 $6.00 $612,720.00 $51,060.00
Years 6-10 6.50 663,780.00 55,315.00
Years 11-15 7.00 714,840.00 59,570.00
Years 16-20 7.50 765,900.00 63,825.00
Years 21-25 8.00 816,960.00 68,080.00
Years 26-30 8.50 868,020.00 72,335.00
(b) Such rent shall be payable in advance in equal monthly installments
payable on the first day of each calendar month during the term hereof,
commencing on the first day of the first full calendar month following the Rent
Commencement Date. All payments of rent shall be made to the Landlord at the
address specified in Section _____ hereof or as the Landlord otherwise notifies
the Tenant in writing.
(c) If, at any time or times during the term, the Premises are remeasured
and it is determined from such remeasurement that the gross leaseable square
footage of the Premises as set forth in Section of this Lease is incorrect, the
annual rent shall be adjusted to equal the product of the actual gross leaseable
square footage of the Premises multiplied by the applicable amount of annual
rent per square foot as set forth in subparagraph (a) above. Upon the request of
either party, an Addendum to this Lease shall be executed setting forth the
actual gross leasable square footage of the Premises.
(d) Beginning with the first Lease Year, the Tenant shall pay to the
Landlord, in addition to the minimum rental, an annual percentage rent in the
amount, if any, by which the Tenant's "Gross Sales" (as hereinafter defined)
during each Lease Year, multiplied by two percent (2%) exceeds the annual base
rent for such Lease Year. The annual percentage rent shall be paid by the Tenant
to the Landlord within sixty (60) days after the end of each Lease Year. Each
such payment shall be accompanied by a statement signed by an authorized
representative of the Tenant setting forth the Tenant's Gross Sales for each
Lease Year. For purposes of permitting verification by the Landlord of the Gross
Sales reported by the Tenant, the Landlord shall have the right, upon not less
than five (5) days notice to the Tenant, to audit the Tenant's books and records
relating to the Gross Sales for a period of two (2) years after the end of each
Lease Year. If such an audit reveals that the Tenant has understated its Gross
Sales by more than three percent (3%), the Tenant, in addition to paying the
additional percentage rent due, shall pay the cost of the audit.
Within thirty (30) days after the end of each month during the term hereof,
the Tenant shall deliver to the Landlord a statement signed by an authorized
representative of the Tenant setting forth the Gross Sales during such month.
"Gross Sales" shall mean the aggregate amount, expressed in dollars, of all
sales of goods, whether made in full or discount prices or for cash or credit,
made in, on, or from the Premises by the Tenant, provided, however, that the
following shall be excluded from Gross Sales: (i) all credit, refunds, and
allowances granted to customers; (ii) all excise taxes, sales taxes, and other
taxes levied or imposed by any governmental authority upon or in connection with
such sales; (iii) bulk sales of goods in connection with the sale of the
Tenant's business; (iv) sales of fixtures, furniture and equipment not made in
the ordinary course of business; (v) sales of cigarettes and other tobacco
products; (vi) discount sales made to employees of the Tenant and the Tenant's
subsidiaries and affiliated corporations, if any; (vii) exchanges of merchandise
between the Tenant's warehouse or other stores and other similar movements of
merchandise; (viii) returns to suppliers; (ix) the proceeds from vending
machines and coin operated telephones and commissions on such proceeds to the
extent such proceeds and commissions are less than five percent (5%) of Gross
Sales exclusive of such proceeds and commissions; (x) uncollectible customer
charges and bad checks; (xi) disallowed credit card amounts and credit card
service charges or fees retained by the credit card company; (xii) delivery
charges; (xiii) finance charges paid directly to Tenant (which shall not include
credit card fees); (xiv) customer credit insurance; and (xv) extended product
warranty fees.
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Section 5. Taxes
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(a) "Real Estate Taxes" means all general and special real estate taxes,
special assessments and other ad valorem taxes, rates, levies and assessments
paid upon or with respect to the Premises, or, if the Premises is not separately
assessed for such purposes, the tax parcels comprising the Center, for a
calendar year or portion thereof to any governmental agency or authority and all
taxes specifically imposed in lieu of any such taxes. Nothing contained in this
Lease shall require the Tenant to pay any franchise, corporate, estate,
inheritance, succession, capital levy, business or transfer tax of the Landlord,
or any income, profits, gross receipts or renewal tax.
(b) Except as provided in subparagraph (c) below, the Landlord shall pay,
as and when they become due, all Real Estate Taxes payable upon or with respect
to the Center. The Landlord shall pay or cause the payment of all Real Estate
Taxes before any fine, penalty, interest or cost may be added thereto, become
due or be imposed by operation of law for the nonpayment or late payment
thereof. Should the Landlord fail to pay such Real Estate Taxes or any part
thereof, the Tenant shall have the right, at its sole election, after written
notice to the Landlord in accordance with Section , to cure such failure by
payment of the Real Estate Taxes and any interest and penalties due thereon and
may deduct the cost thereof, plus interest at the rate of ten percent (10%) per
annum (the "Default Rate"), from the next installment(s) of base rent and other
charges due hereunder. In no event shall the Tenant be liable for any discount
forfeited or penalty incurred as a result of late payment by another tenant. The
Landlord shall remain primarily responsible for such payment of Real Estate
Taxes notwithstanding the fact that such payment may be made by a tenant of the
Center or other third party pursuant to an agreement to which the Tenant is not
a party.
(c) If the Premises are separately assessed for Real Estate Taxes, the
Tenant shall pay, within thirty (30) days after invoice thereof (but not more
than forty-five (45) days prior to the due date thereof), all Real Estate Taxes
payable upon or with respect to the Premises. Should the Tenant fail to pay such
Real Estate Taxes or any part thereof within thirty (30) days after invoice
therefor (but not more than forty-five (45) days prior to the due date thereof),
the Landlord shall have the right, at its sole election, after written notice to
the Tenant in accordance with Section , to cure such failure by payment of such
Real Estate Taxes. Any such amount(s) paid by the Landlord shall constitute
additional rent due hereunder and shall bear interest at the Default Rate until
the Landlord is reimbursed for such amounts. Tenant shall only be liable for
interest and penalties thereon to the extent arising after such thirty (30) day
payment period but prior to the payment of such Real Estate Taxes by Tenant to
Landlord.
(d) If the Premises are not separately assessed for Real Estate Taxes, the
Tenant shall reimburse the Landlord for the Tenant's pro rata share of the Real
Estate Taxes payable upon or with respect to the Center exclusive of any
penalties or late charges within thirty (30) days after the Tenant's receipt of
the Landlord's statement therefor (but not more than forty-five (45) days prior
to the due date thereof), accompanied by the tax xxxx on which such statement is
rendered. The Tenant's pro rata share of the Real Estate Taxes shall be
calculated by multiplying the total tax assessed, net of any early payment
discounts available from the taxing authority at the time the Tenant's payment
is due, by a fraction, the numerator of which is the gross leasable square
footage of the Premises and the denominator of which is the total gross leasable
square footage of all buildings in the Center. Changes in applicable floor areas
in the Premises or in the Center shall result in corresponding pro rata
adjustments. Real Estate Taxes shall be prorated as of the Rent Commencement
Date and the expiration or earlier termination of this Lease, and, if
applicable, the Landlord shall promptly return to the Tenant any overpayment
made by the Tenant. All basements and mezzanine areas in which Landlord is
receiving rent or income shall be included.
(e) Landlord shall deliver to Tenant copies of all notices of proposed
increases in Taxes or proposed revaluation of any property that is included in
the calculation of Tenant's proportionate share of Taxes in time to permit
Tenant to contest such proposed increases or revaluation. If the Tenant disputes
the amounts of any Real Estate Taxes, it may contest and defend, and conduct any
necessary proceedings to avoid, such disputed taxes or assessments,
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and the Landlord shall cooperate with the Tenant in contesting the validity or
amount of such taxes, including joining in the signing of any protests or
pleadings that the Tenant may deem reasonably advisable to file. Any rebate made
on account of any Real Estate Taxes attributable to the Premises shall belong
to, and be paid to, the Tenant. During any such contest, the Tenant agrees to
prevent any public sale, foreclosure or any divesting thereby of the Landlord's
title to the Premises.
(f) Any special assessments for benefits on or to the Center installed
following the Commencement Date shall be included in Real Estate Taxes.
(Predevelopment and development assessments and impact fees shall not be
included in Real Estate Taxes or in other pro rata charges to Tenant.) Landlord
agrees to elect the longest period available under law for payment of such
assessments. Landlord agrees that such assessments shall be amortized to Tenant
over a term not less than ten (10) years, and that any unamortized assessment
remaining at the end of the Lease term shall be borne by Landlord. If special
assessments are permitted to be paid in installments, and if the payment of such
installments are permitted to be paid over a period in excess of ten (10) years,
then there shall be included in Real Estate Taxes for any fiscal year only the
amount of the installment of such assessment that would result had Landlord
elected to pay such assessment over the maximum number of installments permitted
by law to be paid without interest or penalties. Such installments shall be in
lieu of amortizing. Landlord will not submit improvements to a special
improvements district without Tenant's prior written consent unless such
submission shall not result in any charges to Tenant for such improvements.
Section 6. Utilities
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The Tenant shall pay all utility charges and deposits required to establish
accounts for gas, heat, light, water, sewer, electricity, garbage and other
utility use services supplied to the Premises during the term of this Lease. The
Premises shall be separately metered by Landlord for such charges. In the event
of any assignment or subletting of a portion of the Premises by the Tenant then,
at the Tenant's option, such assignment or subletting shall provide that either
(i) such portion of the Premises shall be separately metered for such charges or
(ii) the subtenant or assignee shall be required to pay its pro rata share of
such expenses (which pro rata share shall be the amount of such costs multiplied
by a fraction, the numerator of which shall be the number of gross leasable
square feet in that portion of the Premises that is assigned or sublet, and the
denominator of which shall be the gross leasable square footage of the
Premises).
Section 7. Use
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(a) The Tenant shall have the right to use the Premises for any retail
purpose excluding only those uses set forth in Exhibit "C", attached hereto and
made a part hereof (but only for so long as they remain in effect and have not
been otherwise waived in writing by the parties benefited thereby). The Landlord
represents and warrants to the Tenant that the Premises are properly zoned for
Tenant's stated use and that all use restrictions are set forth in Exhibit "C"
hereof and that the Tenant's use of the Premises as a full-line off price
department store does not violate any such use restrictions. The Tenant shall
not permit or suffer the use of the Premises for any unlawful purpose.
(b) The Landlord shall maintain in the Center a mix of tenants as will best
serve the interest of all tenants. So long as the Tenant is operating from the
Premises, the Landlord shall not lease, or approve or consent to any lease,
assignment or sublease of space in the Center to a full line off price
department store.
Section 8. Landlord and Tenant Work
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The Landlord agrees to provide, at its expense, the improvements to the
Premises described on Exhibit "D", attached hereto and made a part hereof (the
"Landlord's Work"). The Landlord's Work shall be deemed "substantially
completed" when all of the Landlord's Work has been completed except for punch
list items that do not affect the Tenant's use or the appearance of the
Premises. The Tenant agrees to provide, at its expense, after the completion
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of Landlord's Work, the improvements to the Premises described on Exhibit "E",
attached hereto and made a part hereof (the "Tenant's Work"). The Landlord's
Work and the Tenant's Work shall be done in a good and workmanlike manner and in
accordance with plans and specifications approved by the other party, which
approval shall not be unreasonably withheld or delayed, and shall be in
compliance with all applicable building codes, laws, ordinances and regulations.
The plans and specifications delivered for approval to the Tenant and the
Landlord, as applicable, shall be deemed approved if not approved or otherwise
acted upon within fifteen (15) days following receipt of such plans and
specifications. The Landlord and the Tenant shall obtain, at their own expense,
all necessary building permits for their respective work.
Section 9. Tenant Alternations and Improvements
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The Tenant may, from time to time, make or cause to be made any interior
non-structural alterations, additions or improvements to the Premises without
the Landlord's consent. The construction of interior demising walls and interior
doors shall be deemed non-structural. The Tenant may make interior structural
and exterior alterations, additions or improvements to the Premises only with
the Landlord's prior written consent, which consent shall not be unreasonably
withheld or delayed. Any request to make such interior structural or external
alterations, additions or improvements shall be deemed approved if not approved
or otherwise acted upon within fifteen (15) days following request for such
approval. The Landlord agrees to execute and deliver upon the Tenant's request
any instrument or instruments which may be required by any public or
quasi-public authority for the purpose of obtaining any license or permit for
the making of such alterations or improvements.
Section 10. Landlord's Additional Covenants
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(a) Covenant Against Certain Uses. To the full extent permitted by law and
as a condition and inducement to Tenant to enter into this Lease, Landlord
agrees that Landlord will not lease, rent, occupy or permit to be occupied any
premises in the Center (and any enlargement or expansion thereof) to be used for
the operation of a bingo parlor, bar, tavern, cocktail lounge, restaurant, 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), automotive maintenance or automotive repair
facility, warehouse, car wash, pawn shop, check cashing service, establishment
selling second hand goods, or flea market, entertainment or recreational
facility (including bowling alley) or training or educational facility; for the
renting, leasing or selling or displaying therefore of any boat, motor vehicle
or trailer; or for industrial purposes. For the purpose hereof, 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, billiard or pool hall, massage parlor, health club, game
parlor or bingo parlor or video arcade (which shall be defined as any store
containing more than five (5) electronic games). The phrase "training or
educational facility" shall include, without limitation, a beauty school, 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 a restaurant
provided that Landlord complies with the restrictions set forth hereunder in
this Section (b). Notwithstanding anything to the contrary contained in this
Lease and subject to the provisions of Section above, no part of the Center
within four hundred feet (400') of Tenant's Building shall be used as a
restaurant (except that one restaurant, sit down type, not to exceed 2,500
square feet shall be permitted, provided, however, any such restaurant use shall
not offer liquor, beer or wine for sale).
(b) Landlord further agrees that Tenant shall have the right to approve any
changes in use or other alterations to any building within one hundred (100)
feet of the Premises.
(c) Landlord acknowledges that in the event of a breach or an attempted or
prospective breach hereof by Landlord, 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
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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, to cancel this Lease on thirty (30) days written notice to Landlord
and/or to full and adequate relief by temporary and permanent injunction;
provided that the remedy of lease cancellation shall not be applicable if the
violation of this Section 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.
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Section 11. Tenant's Property
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All equipment, inventory, trade fixtures and other property owned by the
Tenant and located in the Premises shall remain the personal property of the
Tenant and shall be exempt from the claims of the Landlord or any mortgagee or
lienholder of the Landlord without regard to the means by which they are
installed or attached. The Landlord expressly waives any statutory or common law
landlord's lien and any and all rights granted under any present or future laws
to levy or distrain for rent (whether in arrears or in advance) against the
aforesaid property of the Tenant on the Premises and further agrees to execute
any reasonable instruments evidencing such waiver, at any time or times
hereafter upon the Tenant's request. The Tenant shall have the right, at any
time or from time to time, to remove such trade fixtures or equipment. If such
removal damages any part of the Premises, the Tenant shall repair such damages.
Tenant is expressly authorized to finance, pledge, and encumber its own trade
fixtures, equipment, and inventory for purposes of financing such trade
fixtures, equipment and inventory.
Section 12. Signs
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(a) Announcements. Landlord agrees, upon execution of this Lease, to erect,
at Landlord's expense, a sign on the Premises. Such sign shall be a minimum of
four feet (4') by eight feet (8') and visible to the public, as set forth on
Exhibit "F" attached hereto and made a part hereof.
(b) Pylon and Building Signs. Landlord shall, at its sole cost and expense,
construct, erect and maintain at the location shown on the Site Plan, pylon
signs upon which Tenant's advertising panel shall be installed, and thereafter
throughout the Term of the Lease, Tenant shall have continuous representation on
the pylon sign(s) and Building sign and any replacement pylon sign in the same
position and size as shown on Exhibit "A". Landlord hereby approves the color of
Tenant's advertising panel for the pylon signs. The dimensions and structure of
the pylon sign, as well as the size of Tenant's advertising panel and its
placement in relation to other panels on the pylon signs shall be approved by
Tenant, in accordance with Tenant's sign requirements as identified on Exhibit
"F". Tenant shall have the right to install its standard signs on the exterior
of the Premises, as described on Exhibit "F" attached hereto. Landlord agrees to
provide an adequate building facia for Tenant's signs.
(c) Maintenance. Tenant agrees to maintain said advertising panel and
exterior building signs in a good state of repair, save the Landlord harmless
from maintenance or removal of such signs, provided that at the end of this
Term, the Tenant agrees to remove the same and repair any damages caused
thereby.
(d) Interior Signage. Tenant shall also have the right to place signs or
banners in the windows of the Premises, provided same are professionally done.
(e) Removal. Landlord agrees that at or before the time for surrender of
the Premises to Landlord, said Tenant may remove all the trade fixtures and
signs and all other personal property owned by Tenant in accordance with Section
herein.
Section 13-Assignment and Subletting
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Tenant shall have the right, without the consent of the Landlord, (i) to
grant licenses and/or concessions with the Premises, and (ii) to assign this
Lease or sublet all or any portion of the Premises to a parent, subsidiary or
affiliate corporation of the Tenant or to a successor by merger, acquisition or
consolidation of the Tenant, its parent or subsidiary or to a corporation
acquiring all or substantially all of the assets of the Tenant, its parent or
subsidiary; provided, however that Tenant shall remain fully liable hereunder.
Notwithstanding the foregoing, Tenant shall be released from all further
liability hereunder in the event such assignee (i) has a net worth of at least
Ten Million Dollars ($10,000,000.00), and (ii) has sufficient business
experience and a good business reputation.
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Tenant shall have the right, without the consent of Landlord, to assign
this Lease or sublet the Premises to any party or entity other than set forth in
the immediately preceding paragraph, so long as (i) such proposed use does not
violate any exclusive in the Center existing as of the date hereof, (ii) such
use is consistent with the general character of the Center, and (iii) the
proposed assignee or subtenant has sufficient business experience and a good
business reputation. In all other cases, Tenant may assign or sublet upon
obtaining the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. Tenant shall remain liable hereunder unless
such assignee or subtenant has a net worth greater than that of Tenant at the
time of such proposed assignment or subletting.
Section 14. Maintenance
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(a) The Tenant shall maintain at its expense the interior of the Premises,
including the doors and windows therein, in good condition and repair. The
Tenant shall repair defective work performed as part of the Tenant's Work but
shall have no obligation to repair any defective work performed by the Landlord
as part of the Landlord's Work.
(b) Tenant shall have the right to make alterations or additions to the
Premises at its sole cost and expense provided, nevertheless, that any such
alterations or additions shall be of good workmanship and material and shall not
reduce the size and strength of the then existing improvements. Tenant shall not
be required to remove any such additions or alterations or to restore the
Premises to their original condition at the termination of tenancy hereunder.
The Landlord hereby covenants and agrees to join with Tenant in applying for and
securing from any governmental authority having jurisdiction thereof, any
permits or licenses which may be necessary in connection with the making of any
alterations, additions, changes or repairs and the Landlord agrees, upon request
by the Tenant, to execute or join in the execution of any application for such
licenses and permits.
(c) The Landlord hereby assigns to the Tenant all manufacturers' and other
warranties applicable to that portion of the Premises and the equipment and
systems therein that the Tenant is obligated to maintain.
Section 15. Common Area Maintenance
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(a) From and after the Commencement Date, Landlord, at its cost and
expense, shall maintain the Common Areas and the Center clean and in good repair
so that Tenant and its customers, guests, invitees, officers and employees can
use and enjoy the same. The obligation of Landlord pursuant hereto shall
include, but not be limited to, the management and maintenance of the Center and
the pylon structure of Tenant's identification sign (if the same is affixed to a
pylon sign used in common with Landlord or other tenants in the Center, but not
Tenant's advertising panels), regular cleaning of the Common Areas, removal of
trash and debris from the Common Areas, repairing the asphalt and concrete
portions of the Common Areas (including potholes, curbs and sidewalks),
repairing common utility lines and facilities, repairing storm drains, repairing
parking lot lights, maintaining the landscaped portion of the Common Areas
(including regular grass cutting), maintaining floodlights and other necessary
means of illumination sufficient to illuminate the Common Areas during twilight
and evening hours that Tenant's store is open for business and in operation,
prompt removal of snow and ice on every occasion where safety of the Common
Areas is impeded, employing traffic control personnel (such as off-duty police
personnel), and periodically restriping the parking area. Landlord covenants
that such maintenance and repair shall be planned and preventative maintenance
undertaken in order to maintain the Common Areas in good usable condition so as
to avoid breakdown of maintenance and avoidable costly repairs. Landlord shall
not in any manner change the size, location, nature, design or use of the Common
Areas as shown on the Site Plan without the prior written consent of Tenant,
which shall not be unreasonably withheld unless the proposed change would
involve additional buildings of any kind or reduce the number of parking spaces,
or otherwise materially and adversely affect the access to or visibility of the
Premises, in any of which cases Tenant's approval may be withheld in its sole
discretion.
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(b) The Tenant shall reimburse the Landlord for its proportionate share of
the Landlord's "Common Area Maintenance Costs" (as hereinafter defined) plus a
fifteen (15%) administrive charge of the Common Area Maintenance Costs.
(c) As used herein, the term "Common Area Maintenance Costs" means all
reasonable costs actually paid by the Landlord for maintaining and repairing the
Common Areas. The following items shall be specifically excluded from Common
Area Maintenance Costs: (i) depreciation on maintenance equipment; (ii) all Real
Estate Taxes; (iii) financing costs, including, but not limited to, any and all
of Landlord's payments for (1) loan principal or interest, together with
expenses, thereto related in connection with such financing or any refinancing
during the term of this Lease, (2) ground lease rent, or (3) similar payments;
(iv) salaries of Landlord's employees or agents contracted through outside
services or employed by Landlord who are not exclusively engaged in the
day-to-day maintenance of the Center; (v) profit or xxxx-up; (vi) maintenance,
repairs, services or improvements on the buildings or other tenant premises,
except that periodic painting of the exterior of the buildings shall be an
allowable expense; (vii) costs of outside management services; (viii) Merchants
Association costs; (ix) Center advertising, promotions and promotional
materials; (x) remodeling of the Center, or any costs for renovation or
improvement to the Common Areas required as a result of other tenants within the
Center remodeling, adding an addition or renovating; (xi) enforcement costs -
any and all of Landlord's costs to compel full performance under leases with all
prior, existing, and prospective tenants at the Center, including, without
limitation all legal fees, costs and expenses to collect rental arrearages and
recover possession, or legal fees and expenses; (xii) leasing costs - any and
all of Landlord's costs of leasing space in the Center to all prior, existing
and prospective tenants, including, without limitation, consulting and marketing
fees, advertising expenses, brokerage commissions, legal fees, vacancy costs,
rent or other rent concessions, and/or refurbishment or improvement expenses;
(xiii) capital costs - any and all of the Landlord's capital costs,
improvements, alterations, repairs and/or replacements (including redesign and
retrofitting of existing capital improvements) to any part of the Center
including, but not limited to, resurfacing and/or replacement of paving; (xiv)
parking garage facilities - any and all of Landlord's expenses relating to any
parking garage facility or facilities on or about the property or comprising a
part of the Center; (xv) any improvement or construction charge which would
normally be and/or should have been in the original construction of the Center
and any repairs or replacements to the interior or exterior which are required
because of defective or faulty installation, materials, design or other latent
defects; (xvi) utility service and/or service lines (for any utility service)
repair, replacement, addition or maintenance charge except for those utility
service and lines within the Common Areas and are used by all tenants of the
Center; (xvii) any utility charge for usage of the Center if such usage is
charged to Tenant's Premises as a result of separate metering of the service or
services. In addition, any utility usage of the Common Areas which is as a
result of other tenants' extended operating hours shall be excluded, and the
cost of any utility, maintenance, service or repair provided to any other
premises in the Center; (xviii) any Common Areas Maintenance Costs incurred or
required prior to the commencement of this Lease; (xix) maintenance, repair or
replacement of Common Areas which is the result of Landlord's negligence in
performing preventative and/or planned maintenance which increases the costs to
maintain the Common Areas in good usable condition; (xx) off site repairs,
replacements or improvements; (xxi) any costs or expenses incurred by the
Landlord in bringing the Center, or any portion thereof, into compliance with
any applicable federal, state or local statutes, codes, ordinances or rules;
(xxii) reserves for anticipated future expenses; (xxiii) any bad debt loss, rent
loss or reserves for bad debts or rent loss; (xxiv) any cost related to the
operation of Landlord as an entity rather than the operating of the Center
including the cost and formation of the entity, internal accounting, legal
matters, preparation of tax returns, etc.; (xxv) any operating expense incurred
by Landlord with respect to other premises in the Center occupied or occupiable
by other tenants of the Center; and (xxvi) any expense for insured or uninsured
loss. Any allowable replacement of Common Areas which would constitute a
"capital expenditure" shall be amortized over the useful life of said
replacement and only the annual amortized portion of said cost shall be included
in Tenant's proportionate share of Common Areas Costs. The Tenant's
proportionate share of the Common Area Maintenance Costs, subject to Section (b)
above (the "Tenant's Share") shall be the amount of such costs multiplied by a
fraction, the numerator of which shall be the gross leasable area of the
Premises as set
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forth in Section hereof and the denominator of which shall be the gross leasable
area of all buildings in the Center.
(d) The Tenant shall pay the Tenant's Share to the Landlord in quarterly
payments in arrears. Within thirty (30) days after the end of each calendar
quarter, the Landlord shall give the Tenant a statement in reasonable detail,
together with all applicable invoices and receipts, setting forth the Common
Area Maintenance Costs for such quarter and the Tenant's Share. Subject to
subparagraph 15(b) above, the Tenant shall pay such amount to the Landlord
within thirty (30) days following receipt of such statement.
Section 16. Landlord's Maintenance and Repairs
----------------------------------------------
Landlord agrees that it shall, at its sole cost and expense, at all times
during the term of this Lease:
(a) Keep, repair and maintain in good order and condition (including
replacement, if necessary), the roof (including all components thereof) and the
interior and exterior structural portions of the Premises, including, without
limitation, the exterior walls (painted, cleaned and/or sandblasted, but
excluding plate glass windows, doors, door closure devices, door frames,
molding, locks and hardware); the window frames (but only to the extent repair
thereto is necessitated due to settling of the building or other structural
failure of the building); the foundation, structural parts of the floor; all
structural members; gutters, downspouts; duct work; automated sprinkler supply
line; and, electrical wiring from main circuit breaker panels (excluding the
circuit breaker) to the weatherboard and extending to the public utility power
sources. In addition, Landlord shall be responsible for "replacement" of major
equipment, including air condition and heating equipment, upon said equipment
being deemed unrepairable by a registered engineer selected by Tenant. Should
Landlord elect to renovate or remodel the exterior of said Premises, Landlord
may do so at Landlord's expense provided Tenant has approved the same.
(b) Make any repair or replacements which become necessary as the
consequence (whether with or without any intervening act, negligence, or default
under this Lease of Landlord, its employees, agents, licensees, or contractors)
of a condition Landlord is required to correct, as in the case of damage to the
ceiling which results from a roof leak.
(c) If Landlord fails to perform its maintenance obligations hereunder,
Tenant, after thirty (30) days written notice to Landlord (or upon such notice
as may be reasonable in the event of an emergency or in the event such repairs
are necessary in order to avoid damage to the Tenant's merchandise or
interference with the Tenant's business) may perform such unperformed
maintenance at the cost of the Landlord. Tenant may offset the cost of
performing the Landlord's maintenance obligations against the rent due
hereunder.
(d) In the event it shall become necessary to make any emergency repair
which would otherwise be required to be made by Landlord, Tenant shall use its
best efforts to contact Landlord, and in the event of its inability to do so,
Tenant may proceed forthwith to have the repairs made and pay the cost thereof
and promptly thereafter deliver a xxxx for such repairs to Landlord. In the
event the xxxx for such repairs is not paid within thirty (30) days after
Landlord's receipt of such xxxx, Tenant may deduct all of its costs and expenses
in connection therewith from up to one-half of each monthly installment of the
Fixed Rent thereafter becoming due until such sum shall be recovered in full.
Section 17. Surrender of Premises
---------------------------------
At the expiration of the term, the Tenant shall surrender the Premises in
good condition and repair, ordinary wear and tear and damage by fire and
casualty excepted.
Section 18. Insurance
---------------------
(a) The Tenant agrees that it will, at all times during the term of this
Lease, keep in full force and effect a policy of general liability insurance
with respect to the Premises and the
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business operated by the Tenant therein in which the limits shall not be less
than One Million Dollars ($1,000,000.00) in respect of personal injury and not
less than Five Hundred Thousand Dollars ($500,000.00) in respect of property
damage.
(b) The Landlord agrees that it will, at all times during the term of this
Lease, keep in full force and effect a policy of fire and extended coverage
("all-risk" form) insurance, insuring all improvements in the Center and the
Premises on full replacement cost basis, including:
(i) With respect to the Center, extended coverage and vandalism and
malicious endorsement, in an amount not less than the full replacement cost of
the buildings and improvements thereon; and
(ii) Sprinkler leakage insurance with respect to the Center (but not with
respect to Tenant's fixtures, furniture, equipment, stock, or inventory), in an
amount not less than one hundred percent (100%) of said replacement value.
(c) Landlord shall maintain a policy or policies of general comprehensive
public and property damage insurance for damages on account of injuries to
property or person, including, death, sustained by any person or persons while
within said Common Areas (including but not limited to parking lot and
sidewalks) in the amount of Five Million Dollars ($5,000,000.00) combined single
limit protection.
Landlord is to notify Tenant of any changes in the liability policy or if
there is a termination of that policy without replacement. At Tenant's request,
but not more frequently than twice each calendar year, Landlord will furnish to
Tenant evidence of such insurance.
(d) The party obligated to maintain the insurance policies hereunder shall,
within fifteen (15) days after request therefor, deliver to the other party a
certificate of insurance naming the other party as an additional insured and
evidencing that the insurance required hereunder is in full force and effect.
All insurance required hereunder may be carried under blanket policies
maintained by the party required to maintain such insurance.
(e) The Landlord and the Tenant agree that with respect to any loss which
is required to be covered by insurance hereunder, the one carrying or required
to carry such insurance and suffering such loss releases the other of and from
any and all claims with respect to such loss. The Landlord and the Tenant
further agree that their respective insurance policies shall provide for an
appropriate waiver of subrogation reflecting this release.
(f) The net proceeds of the insurance referred to in Section (b) shall be
applied to the restoration of the Premises. Any surplus proceeds shall belong to
the Landlord. Landlord agrees to convey any insurance proceeds received by
Landlord to a title company or lender mutually agreed to by the parties hereto
to hold in escrow for rebuilding if Landlord is required to rebuild.
(g) Tenant shall be named as an additional insured in Landlord's public
liability and property damage insurance policies. Any insurance required to be
maintained by Landlord under this Section 18 may be maintained under a so-called
blanket policy or policies; may contain reasonable deductible provisions
customary for similar properties in the Center locale and consistent with sound
insurance practices; and, the insurance required to be maintained shall include
a clause waiving any right of subrogation against Tenant. Tenant shall pay to
Landlord monthly, as additional rent, Tenant's pro rata share of the premiums
for the insurance described above. Landlord shall charge Tenant for its pro rata
share of the foregoing insurance separately from Common Areas expense charges,
and Landlord shall not add an administrative charge as a part of such insurance
expense.
(h) Landlord represents that the insurance premiums payable by Landlord for
the coverage enumerated herein shall be at rates which are commercially
reasonably, and comparable to the rates paid by other owners of similarly-sized,
first-class shopping centers for similar coverage in the metropolitan area. In
the event Tenant is able to locate an insurance
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carrier (or carriers) of comparable quality and expertise as Landlord's carrier
which will provide to Landlord identical coverage at rates which are less than
the premium rates charged by Landlord's insurance carrier, Tenant's
Proportionate Share of insurance premiums shall be calculated based upon the
rates quoted by Tenant's proposed insurance carrier or carriers (whether or not
Landlord elects to obtain the insurance coverage required hereunder from such
source or sources) which Tenant shall make available to Landlord.
Section 19. Compliance with Governmental Regulations
----------------------------------------------------
(a) Except as provided in subparagraph (c) below, the Tenant shall, at its
cost and expense, comply with the lawful requirements of all municipal, state,
federal and other applicable governmental authorities arising as a result of the
Tenant's particular use of the Premises; provided, however, that the Tenant
shall have no obligation to make any additions, alterations or improvements to
the Premises required by such governmental authorities if the cost of such
additions, alterations or improvements exceeds Ten Thousand Dollars ($10,000.00)
or if less than two years remain in the term hereof.
(b) Except as provided in subparagraph (c) below, the Landlord shall, at
its sole cost and expense, comply with all other lawful requirements of all
municipal, state, federal or other applicable governmental authorities arising
as a result of or in connection with the use and occupancy of the Premises and
the Common Areas or the failure of the Landlord's Work to comply with such
requirements.
(c) As used in this subparagraph, the Americans with Disabilities Act
("ADA") shall mean the Americans with Disabilities Act of 1990, 42 U.S.C.
Section 1201, et. seq., and all implementing regulations. The Landlord and the
Tenant intend to comply with the ADA and the parties hereby agree to allocate
responsibility for such compliance as follows:
(i) Except as provided in subsection (ii) below, the Landlord shall
have responsibility to comply with the requirements of the ADA in all Common
Areas and in the Premises. Such compliance responsibility shall include, but
shall not be limited to, the obligation to remove architectural and
communication barriers in the Common Areas and the Premises where such removal
is readily achievable.
(ii) Except as provided in subsection (i) above, the Tenant shall have
responsibility to comply with the requirements of the ADA in the Premises to the
extent that such requirements require the Tenant to make interior non-structural
changes or improvements to the Premises. Such responsibility shall include, but
shall not be limited to, the obligation to remove architectural and
communication barriers in the Premises created by the Tenant's trade fixtures
and leasehold improvements made by the Tenant where such removal is readily
achievable.
(iii) If building alterations are commenced by Landlord and involve
the Common Areas, it shall be the Landlord's responsibility to comply with the
standards of accessibility required under the ADA and its implementing
regulations.
(iv) Except as provided in subsection (v) below, if building
alterations are commenced by Tenant and involve the Premises, it shall be the
Tenant's responsibility to comply with the standards of accessibility required
under the ADA and its implementing regulations.
(v) In the event the Landlord and the Tenant shall agree as part of
the terms and conditions of the Lease that the Landlord, at the Landlord's
expense, shall construct improvements on the Premises or any part thereof, it
shall be the Landlord's responsibility to comply with the standards of
accessibility for such new construction.
(vi) Each party shall be responsible for the ADA compliance of its own
standards, criteria, administrative methods, eligibility criteria, policies,
practices and procedures.
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(vii) The Tenant shall be responsible for the provisions of any
"auxiliary aids and services," as such term is defined and used in the ADA, to
its customers, clients and patrons, if and to the extent required in connection
with the operation of its business or occupancy of the Premises.
(viii) To the extent permitted by the ADA, if either the Landlord or
the Tenant can demonstrate that barrier removal is not readily achievable in an
area in which either party has responsibility for ADA compliance, the party
responsible for compliance, as herein provided, shall make use of alternatives
to barrier removal, if such alternatives are readily achievable.
Section 20. Damage
------------------
(a) If the Premises shall be damaged by fire or other casualty, the
Landlord shall collect the proceeds of such insurance and immediately and with
all due diligence commence to repair such damage at its expense. From the date
the damage occurs to the date the repairs are complete, the rent due hereunder
shall be reduced by the same percentage as the percentage of the Premises which,
in the Tenant's reasonable judgment, cannot be safely, economically or
practically used for the operation of the Tenant's business. Anything herein to
the contrary notwithstanding, if in the Tenant's reasonable judgment, any damage
or destruction to the Premises from any cause whatsoever cannot be repaired
within one hundred eighty (180) days following the date such damage occurs, the
Tenant may terminate this Lease by written notice to the Landlord given within
ninety (90) days following the occurrence of such damage. In addition, if any
damage or destruction to the Premises from any cause whatsoever cannot be
repaired, in the Landlord's reasonable judgment, within one hundred eighty (180)
days following the date such damage occurs and the Landlord elects not to repair
such damage, the Landlord shall have the right to terminate this Lease by
written notice to the Tenant given within ninety (90) days after the date such
damage occurred provided that no more than three (3) calendar years remain in
the term hereof. Notwithstanding the foregoing, if at the time the Landlord
gives such termination notice any of the renewal options provided for in the
Lease have not yet been exercised and the Tenant exercises a renewal option
within thirty (30) days after receipt of the Landlord's termination notice, then
this Lease shall not be terminated and the Landlord shall promptly commence
restoration of the Premises.
(b) In the event of a termination of the Lease pursuant to this paragraph,
all insurance proceeds payable by reason of damage under policies required to be
carried hereunder (excluding any insurance proceeds attributable to damage to
the Tenant's inventory, trade fixtures, business or leasehold improvements paid
for by the Tenant) shall be paid to the Landlord.
Section 21-Condemnation
-----------------------
If all or any part of the Premises or the Center shall be taken under the
power of eminent domain, (i) this Lease shall terminate as to the part so taken
on the date on which the Tenant is required to yield possession thereof, (ii)
the Landlord shall make such repairs and alterations as may be necessary in
order to restore the part not taken to a condition satisfactory for the Tenant's
use, and (ii) the rent due hereunder shall be reduced by the same percentage as
the percentage of the Premises or the Center so taken. If the portion so taken
of the Premises, the Center or the Common Areas or access thereto substantially
impairs the Tenant's use of the Premises or the economic viability of the
business then being operated by the Tenant in the Premises, the Tenant shall
have the option to terminate this Lease at any time following the date on which
the Landlord or the Tenant is required to yield possession of the area so taken.
Section 22. Indemnification
---------------------------
Subject to the insurance requirements of Section , the Landlord hereby
indemnifies the Tenant, and the Tenant hereby indemnifies the Landlord for any
cost, damage or expense incurred or suffered by the other as a result of the
negligence or other act or omission of the indemnifying party.
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Section 23. Quiet Enjoyment
---------------------------
Landlord warrants that Tenant shall have the continuous and uninterrupted
quiet enjoyment and exclusive possession of the Premises and the non-exclusive
right to use the Common Areas during the term of this Lease. In the event that,
at any time during the term hereof, Tenant's quiet enjoyment and possession is
deprived for more than sixty (60) days as a result of a defect in the title of
Landlord to the Center and/or the Premises, and Landlord fails or refuses to
cure such defect within such sixty (60) day period, Tenant shall have the right,
at its option, to terminate this Lease without prejudice to any other right or
remedy it may have at law or equity or under this Lease.
Section 24. Landlord's Covenants
--------------------------------
The Landlord represents (i) that it has the right to enter into this Lease,
(ii) that it has good and marketable title to the Premises, (iii) that the
Premises, including without limitation, the roof and HVAC system, are in good
condition and repair, (iv) that the Premises is properly zoned for use by the
Tenant as a full-line off price department retail location, (v) that the
Landlord has obtained all necessary approvals and permits from appropriate
governmental authorities for the development of the Center in accordance with
the Site Plan and for the construction and occupancy of the Premises by Tenant
as a full-line off price department retail location, and (vi) that the Landlord
has entered into no leases, agreements or restrictive covenants that would
prohibit or interfere with the use of the Premises by the Tenant as a off
price-full line department store retail location.
Section 25. Hazardous Substances
--------------------------------
(a) "Hazardous Substances", as used herein, shall mean all "hazardous
substances" (as defined in the Comprehensive Environmental Response Compensation
and Liability Act of 1980, 42 U.S.C. paragraph 9601 et seq. and the regulations
promulgated pursuant thereto, as amended [the "Act"]); any other toxic or
hazardous waste, material or substance as defined under any other federal state
or local law, rule, regulation or ordinance; petroleum products and any other
pollutant or environmental contaminant. "Remediate" or "remediation" as used
herein shall mean "remediate" or "remediation" as defined in the Act.
(b) During the term of the Lease, the Tenant shall not: (i) release, spill,
leak, store, generate or accumulate any Hazardous Substances in, on or under the
Premises (except that the Tenant may store ordinary and necessary quantities of
cleaning, office and pest control supplies stored in a safe and lawful manner
and immaterial quantities of petroleum products may be discharged from the
operation of motor vehicles on the Premises); (ii) install any underground
storage tanks in, on or under the Premises; (iii) accumulate tires, spent
batteries, mining spoil, debris or other solid waste (except for rubbish in
containers for normal scheduled disposal in compliance with all applicable
laws); or (iv) drain, fill or modify wetlands on the Premises (except in
compliance with all applicable laws).
(c) The Tenant shall notify the Landlord immediately upon the Tenant's
learning during the term of this Lease that: (i) any duty in subparagraph (b)
has been violated; (ii) there has been a release, discharge or disposal of any
Hazardous Substance on any property contiguous to the Premises such that
contamination of the Premises is possible; (iii) the Premises are the subject of
any third party claim or action, because of any environmental condition on or
originated from the Premises. The Tenant shall promptly provide the Landlord
with copies of all correspondence to or from third parties, including, but not
limited to, governmental agencies, regarding environmental conditions on or
originating from the Premises.
(d) The Tenant shall indemnify and agrees to hold the Landlord harmless
from and against all costs, liability and damages suffered by the Landlord as a
result of a breach of the Tenant's duties hereunder.
(e) The Landlord hereby represents and warrants that: (i) it has not used,
generated, discharged, released or stored any Hazardous Substances on, in or
under the Center and has
17
received no notice and has no knowledge of the presence in, on or under the
Center of any such Hazardous Substances; (ii) there have never been any
underground storage tanks at the Center, whether owned by the Landlord or its
predecessors in interest; (iii) there are not and have never been accumulated
tires, spent batteries, mining spoil, debris or other solid waste (except for
rubbish and containers for normal scheduled disposal in compliance with all
applicable laws) in, on or under the Center; (iv) it has not spilled, discharged
or leaked petroleum products other than de minimis quantities in connection with
the operation of motor vehicles on the Center; (v) there has been no draining,
filling or modification of wetlands (as defined by federal, state or local law,
regulation or ordinance) at the Center; and (vi) there is no asbestos or
asbestos-containing material in the Premises. The representations and warranties
set forth in this subparagraph (e) shall apply to any contiguous or adjacent
property owned by the Landlord, whether or not the Landlord is in possession.
(f) If any such Hazardous Substances are discovered at the Center (unless
introduced by the Tenant, its agents or employees) or if any asbestos or
asbestos containing material is discovered in the Premises, and removal,
encapsulation or other remediation is required by applicable laws, the Landlord
immediately and with all due diligence and at no expense to the Tenant shall
take all measures necessary to comply with all applicable laws and to remove
such Hazardous Substances or asbestos from the Center and/or encapsulate or
remediate such Hazardous Substances or asbestos, which removal and/or
encapsulation or remediation shall be in compliance with all environmental laws
and regulations, and the Landlord shall repair and restore the Center at its
expense. From the date such Hazardous Substances are discovered at the Center to
the date such removal, encapsulation, remediation and restoration is complete,
the rent due hereunder shall be reduced by the same percentage as the percentage
of the Premises which, in the Tenant's reasonable judgment, cannot be safely,
economically or practically used for the operation of the Tenant's business.
Anything herein to the contrary notwithstanding, if in the Tenant's reasonable
judgment, such removal, encapsulation, remediation and restoration cannot be
completed within one hundred eighty (180) days following the date such Hazardous
Substances or asbestos are discovered, the Tenant may terminate this Lease by
written notice to the Landlord, which notice shall be effective on Landlord's
receipt thereof. Landlord shall comply with OSHA 29 CFR 1910.1001 (j) to notify
tenants, including Tenant, of asbestos related activities in the Premises and
the Center including, but not limited to, selection of the certified/licensed
asbestos abatement contractor, scope of the abatement work, and final clearance
testing procedures and results.
(g) If any of the representations or warranties set forth in subparagraph
(e) are incorrect, misleading or breached, if any Hazardous Substances are
discovered at the Center (unless introduced by the Tenant, its agents or
employees) or if any asbestos or asbestos containing material is discovered in
the Premises, all costs incurred by the Tenant as the result of such breach or
discovery of such Hazardous Substances or asbestos shall be borne by the
Landlord, and the Landlord hereby indemnifies and agrees to hold the Tenant and
the Tenant's officers, directors, stockholders, employees and agents harmless
from and against all such costs, liability and damages including, without
limitation, all third-party claims (including sums paid in settlement thereof,
with or without legal proceedings) for personal injury or property damage, and
all judgments, compensatory and punitive damages, penalties, fines, costs,
losses, attorneys' fees (through all levels of proceedings), costs of
remediation and removal, consultants' and experts' fees, and all costs incurred
in enforcing this indemnity.
(h) Beginning on the date of this Lease, the Tenant shall have the right to
conduct an environmental study of the Premises and the Center, and the Landlord
agrees to cooperate with and to provide access to the Center and the Premises to
the Tenant and its agents. If the Tenant discovers any Hazardous Substances at
the Center or any asbestos or asbestos containing materials in the Premises as a
result of such environmental study, the Tenant shall have the right to terminate
in accordance with Section hereof.
(i) The obligations of the Landlord and the Tenant hereunder shall survive
the expiration or earlier termination of this Lease and any extensions hereof.
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Section 26. Default by Tenant-Remedies
--------------------------------------
(a) Each of the following shall be deemed a default by Tenant and a breach
of this Lease: (i) filing of a petition by Tenant for adjudication as a bankrupt
or an adjudication as a bankrupt or for reorganization or for an arrangement
under any federal or state statute, except a Chapter 11 Bankruptcy where rent is
being paid and the terms of the Lease are being complied with; (ii) involuntary
dissolution or liquidation of Tenant; (iii) appointment of a permanent receiver
or a permanent trustee of all or substantially all the property of Tenant, if
such appointment shall not be vacated within one hundred and twenty (120) days;
(iv) taking possession of the property of Tenant by any governmental officer or
agency pursuant to statutory authority for dissolution, rehabilitation,
reorganization or liquidation of the Tenant if such taking of possession shall
not be vacated within one hundred and twenty (120) days; (v) making by the
Tenant of an assignment for the benefit of creditors.
If any event mentioned in this subdivision (a) shall occur, Landlord may
thereupon or at any time thereafter elect to cancel this Lease by thirty (30)
days notice to the tenant in possession and this Lease shall terminate on the
day in such notice specified with the same force and effect as if that date were
the date herein fixed for the expiration of the term of the Lease.
(b) (i) Default in the payment of the base rent reserved for a period of
twenty (20) days after notice. In the event Tenant deducts from base rent or
other charges hereunder such sums expended by Tenant to remedy defects or make
repairs upon Landlord's failure to perform its obligations hereunder, such
action by Tenant shall not be construed as a default in the payment of fixed
rent or other charges hereunder.
(ii) A default in the performance of any other covenant or condition
of this Lease on the part of the Tenant to be performed for a period of thirty
(30) days after notice. For purposes of this subdivision (b) (ii) hereof, no
default on the part of Tenant in performance of work required to be performed or
acts to be done or conditions to be modified shall be deemed to exist if steps
shall have been commenced by Tenant diligently after notice to rectify the same
and shall be prosecuted to completion with reasonable diligence, subject,
however, to unavoidable delays.
(c) In cases of any such default under Section (b) and at any time
thereafter following the expiration of the respective grace periods above
mentioned, Landlord may serve a notice upon the Tenant electing to terminate
this Lease upon a specified date not less than twenty (20) days after the date
of serving of such notice and this Lease shall then expire on the date so
specified as if that date had been originally fixed as the expiration date of
the term herein granted; however, a default under Section (b) hereof shall be
deemed waived if such default is cured before the date specified for termination
in the notice of termination served on Tenant.
If a default occurs subsequent to Tenant's assignment or subletting of the
Premises, Landlord may proceed to terminate this Lease in the manner described
above, provided: (i) a copy of the specified notices shall be served upon the
original Tenant herein as well as the party entitled to possession, and (ii)
Tenant shall be entitled to timely rectify any defaults occurring after such
assignment or subletting.
If Tenant assigns this Lease or sublets the Premises, Landlord, when giving
notice to said assignee or subtenant or any future assignee or subtenant in
respect of any default, shall also serve a copy of such notice upon the original
Tenant (herein called the "Original Tenant"), and no notice of default shall be
effective until a copy thereof is so given to the Original Tenant. The Original
Tenant shall have the same period after receipt of such notice to cure such
default as is given to Tenant therefor under this Lease. If this Lease
terminates or this Lease and the term hereof ceases and expires because of a
default of such assignee or subtenant after an assignment of this Lease or
sublease shall have been made, Landlord shall promptly give to the Original
Tenant notice thereof; and the Original Tenant shall have the option,
exercisable by the giving of notice by the Original Tenant to Landlord within
ten (10) days after receipt by the Original Tenant of Landlord's notice, to cure
any default and become Tenant under a new lease for the remainder of the term of
this Lease (including any renewal periods) upon all of the same terms and
conditions as then remain under this Lease, and such
19
new lease shall commence on the date of termination of this Lease, except that
if the Original Tenant is occupying less than ten percent (10%) of the Premises,
Landlord may deliver to the Original Tenant, together with Landlord's notice, a
release as to all future liability under this Lease.
(d) In case this Lease shall be terminated as hereinbefore provided, or by
legal proceedings, Landlord or its agents may, immediately or any time
thereafter, re-renter and resume possession of the Premises or such part
thereof, and remove all persons and property therefrom, by a suitable action or
proceeding at law. No re-entry by Landlord shall be deemed an acceptance of a
surrender of this Lease.
(e) In case this Lease shall be terminated as hereinbefore provided,
Landlord shall, in its own name but as agent for Tenant, if the Lease be not
terminated, or if the Lease be terminated in its own behalf, use its best
efforts to mitigate its damages and relet the whole or any portion of the
Premises for any sum which may be reasonable, giving due consideration to the
rents reserved herein and in connection with any such lease, Landlord may make
such changes in the character of the improvements on the Premises as may be
appropriate or helpful in effecting such lease. Landlord shall not in any event
be required to pay Tenant any surplus of any sums received by Landlord on a
reletting of the Premises in excess of the rent reserved in this Lease.
(f) In case this Lease shall be terminated as provided in Section (c),
subject to rebuttal by Tenant, Landlord shall be entitled to recover from the
Tenant, the following: (i) a sum equal to all reasonable expenses, if any,
including reasonable counsel fees, incurred by Landlord in recovering possession
of the Premises, and all reasonable costs and charges for the care of said
Premises while vacant, which damages, less the avails of reletting, shall be due
and payable by Tenant to Landlord; and (ii) a sum equal to the amount of all
rent and other charges reserved under this Lease which shall be due and payable
by Tenant to Landlord on the several days on which the rent and other charges
reserved in this Lease would have become due and payable, less the greater of
(1) the fair rental value of the Premises, or (2) the net rent, if any,
collected by Landlord on reletting the Premises; that is, upon each of such days
Tenant shall pay to Landlord the amount of deficiency then existing after
receipt of credit for the fair rental value or net rent collected by Landlord.
Any excess amounts of rent collected by Landlord shall be credited against
future rent. Such net rent collected on reletting shall be computed by deducting
from the gross rents collected all necessary expenses incurred in connection
with reletting of the Premises or any part thereof, including reasonable
brokers' commissions.
(g) Separate actions may be maintained by Landlord against Tenant from time
to time to recover any damages which, at the commencement of any such action,
have then or theretofore become due and payable to the Landlord under this
Section without waiting until the end of the then current term.
Section 27. Landlord's Default
------------------------------
In the event that the Landlord defaults in the performance of any of its
obligations hereunder and such default continues uncured (by the Landlord or any
mortgagee of the Center) for thirty (30) days after written notice from the
Tenant to the Landlord (and to any mortgagee of the Center for whom the Tenant
has been provided a name and address) and such default is reasonably capable of
being cured within thirty (30) days, then, in addition to all other rights and
remedies provided by law, the Tenant shall have the right to cure such default
and offset the cost of such cure against the rents and other amounts due
hereunder; provided, however, that if such default is not reasonably capable of
being cured within thirty (30) days, the period for curing such default shall be
extended for so long as the Landlord (or its mortgagee) is proceeding with
reasonable diligence to cure such default. Provided further that in the case of
an emergency, the Tenant shall be required to give only such notice as is
reasonable under the circumstances.
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Section 28. Conditions to Lease
-------------------------------
(a) The obligations of the Landlord and the Tenant hereunder are contingent
upon the fulfillment of the following conditions:
(i) Approvals. Tenant shall have obtained the approvals of all third
parties as are necessary with respect to this Lease, including, but not limited
to, temporary or permanent certificates of occupancy, or both, as the case may
be, permitting the use of the Premises for the permitted use herein.
(ii) Environmental Matters. The Tenant shall have obtained any
environmental study required by Tenant showing to the Tenant's satisfaction that
the Premises and the Center are free from contamination by any Hazardous
Substances or other environmental contaminants, including asbestos, PCB's and
other restricted contaminants.
(iii) Status of Title. The Tenant shall have obtained any title
evidence required by Tenant showing that the Landlord is vested with fee simple
title to the Center and can lease to the Tenant the Premises and grant to the
Tenant the rights in and to the Center set forth in this Lease, subject only to
Real Estate Taxes for the current year which are not yet due and payable and
easements and restrictions of record to the extent they do not, in the
reasonable opinion of the Tenant, materially adversely affect marketability of
title or the Tenant's contemplated use of the Premises and the Center.
(iv) Nondisturbance Agreement. The Landlord shall have delivered to
the Tenant the non-disturbance agreement(s) as provided in Section below.
(v) Zoning. That the Premises are zoned for business and for the use
of Tenant's business, and Tenant approving all local authority requirements,
whether such requirements were approved, pre-lease execution or after lease
execution.
(vi) Signage. That Tenant will be permitted by the necessary
authorities to install the necessary signs of the size and color as shown and
identified on Exhibit "F", which signs will be the minimum size and quantity
acceptable to Tenant. Landlord agrees to cooperate with Tenant in securing the
necessary sign permits and approvals by the necessary authorities.
(vii) Utilities. That Tenant be provided by Landlord all necessary
utilities to the Premises including storm and sanitary sewer, domestic and fire
sprinkler water service, natural gas and electrical service (208/230 volt)
satisfactory to Tenant. The fire sprinkler system shall have adequate flow and
pressure to meet N.F.P.A. requirements.
(viii) Related Party Lease. In the event that a party related to or
affiliated with Tenant has entered into a separate lease agreement with Landlord
for space in the Center, all contingencies have been satisfied in said related
or affiliated party lease and said related or affiliated party lease is in full
force and effect.
Section 29. Nondisturbance
--------------------------
If this Lease or the Tenant's rights hereunder are subordinate to the lien
of any deed of trust, mortgage, or any other security instrument or lien
encumbering the Premises or the Center, or if the Landlord leases pursuant to a
ground lease or other lease any portion of the Center, the Landlord shall obtain
for the benefit of the Tenant (and without cost to the Tenant) a non-disturbance
agreement in form satisfactory to the Tenant. Such non-disturbance agreement
shall provide that if a foreclosure or other proceeding is brought to enforce
the lien of such deed of trust, mortgage, lien or security instrument or a
termination of any such ground or underlying lease, then the ground lessor or
holder of the note secured by any such deed of trust or mortgage or the
purchaser at such a foreclosure sale shall recognize this Lease and all the
Tenant's rights hereunder shall continue in full force and effect.
21
Section 30. Landlord's Construction
-----------------------------------
(a) Construction. Landlord agrees that it is anticipated that it will
complete construction of the Premises and improvements prior to the Commencement
Date of the Lease in accordance with Exhibit "D" (Landlord's Construction Work),
and including Landlord's Working Drawings approved by Tenant.
(b) Parking Requirements. Landlord agrees that throughout the term of this
Lease and any renewal terms hereunder, parking facilities shall be provided by
Landlord so that the minimum number of parking spaces (for standard-size
American cars) in the Center shall be at least five and one-half (5.5) per one
thousand (1,000) square feet of gross leasable area.
(c) Commencement of Construction. Construction contemplated by the Working
Drawings shall be commenced by Landlord as soon as reasonably possible. Landlord
agrees to apply for any required regulatory approvals as soon as reasonably
possible and prosecute the application with all due diligence. Landlord shall
use its reasonable best efforts to cause the contractor to complete such
construction expeditiously. Landlord shall furnish Tenant, within thirty (30)
days after commencement of construction, a schedule showing when different
portions of construction are scheduled to be started and completed according to
the various subdivisions of the Working Drawings.
(d) Completion of Construction of Premises. Upon completion of
construction, Landlord shall satisfy the following conditions:
(i) Landlord shall furnish Tenant with a temporary certificate of
occupancy and other necessary approvals which must be issued by the appropriate
governmental authorities for the occupancy and use of the Premises as
contemplated. Landlord agrees to provide a permanent certificate of occupancy as
soon as available in the ordinary course of the issuing authority's practice;
(ii) The architect engaged by Landlord shall execute his certificate
of completion of the Premises in a good and workmanlike manner substantially in
accordance with Landlord's Construction Work (Exhibit "D"), and the Working
Drawings and readiness for occupancy and deliver it to Tenant;
(iii) Landlord agrees that Tenant shall have the right, at Tenant's
option, to inspect the Premises during and upon completion (and prior to Tenant
taking possession) to determine compliance by Landlord of Landlord's
Construction Work (Exhibit "D"), and the Working Drawings. Landlord agrees to
correct or change those items which are deemed by Tenant as not in compliance
prior to Tenant taking possession;
(iv) Landlord shall complete repair or replacement of all items
presented by Tenant to Landlord in the form of a "punch list" within thirty (30)
days after Tenant shall present such list to Landlord. Tenant shall present such
"punch list" to Landlord within a reasonable period, not to exceed ninety (90)
days, after Landlord's completion of the Premises. Tenant shall be permitted to
cure such punch list at Landlord's expense and deduct the cost of the same from
its next rental installment due hereunder in the event Landlord fails to
complete such "punch list" within such thirty (30) day period.
(e) Remainder of Improvements.
(i) Except as presently exists or as otherwise provided herein or as
shown on Exhibit "A", no improvement or structure in the Center (including all
outlot pads) shall be of a height greater than twenty feet (20') above ground
level nor contain more than one (1) story or a basement or mezzanine. The
foregoing notwithstanding, Landlord shall have the right to construct one or
more one (1) story buildings in the area designated on Exhibit "A" as
"Landlord's Future Building Area" provided that there is sufficient parking to
comply with local zoning ordinances and Section (b) without Landlord's applying
for a variance therefrom. Landlord agrees that if Landlord builds on any part of
"Landlord's Future Building Area", as designated on the Site Plan - Exhibit "A",
Landlord will not apply for a variance from the local
22
zoning ordinances for the purpose of reducing the amount of space which must be
provided for parking.
(ii) In performing any construction work, repairs or maintenance in
the Center after Tenant has taken physical possession of the Premises, Landlord
shall use its reasonable efforts to prevent any interference with the operation
of the Center and the business of Tenant or any subtenant or licensee of Tenant.
(f) Guarantees. In addition to any guarantees provided to Tenant in Exhibit
"D", Landlord shall unconditionally guarantee all of Landlord's Work against
defective workmanship and materials for one (1) year from the Commencement Date.
Further, Landlord shall assign and pass through to Tenant all manufacturer's
warranties on all equipment provided to Tenant as part of Landlord's
construction obligations.
Section 31. Holding Over
------------------------
Any holding over after the expiration of the term shall be construed to
create a tenancy from month-to-month at the rent herein specified (prorated on a
monthly basis) and shall otherwise be on the terms and conditions specified in
this Lease as far as applicable.
Section 32. For Rent Signs
--------------------------
The Landlord shall have the right during the last sixty (60) days of the
term, to place one for rent or for sale sign, not exceeding two feet by two feet
in size, on one window of the Premises. The Tenant shall also allow the
Landlord, or its agents, during such sixty (60) day period to show the Premises
to prospective tenants or purchasers during reasonable business hours by prior
appointment provided that there is no interference with the conduct of the
Tenant's business.
Section 33. Successors
----------------------
The covenants, conditions and terms contained in this Lease shall bind and
inure to the benefit of the Landlord, the Tenant and their respective successors
and assignees.
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Section 34. Waiver
------------------
The waiver by the Landlord or the Tenant of any breach of any provision of
this Lease or the failure by the Landlord or the Tenant to insist upon the
strict observance of any provisions shall not be deemed to be a waiver of such
provision or any subsequent breach thereof.
Section 35. Notices
-------------------
Any notice, demand, request or other instrument which may be, or is
required to be given under this Lease, shall be in writing and delivered in
person or by courier service or by United States certified mail, postage
prepaid, and shall be addressed:
(a) if to the Landlord, at 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000-0000,
or at such other address as Landlord may designate by written notice; with a
copy of same to sent in like manner to Vice President, Real Estate, 0000 Xxxxx
Xxxx, Xxxxxxxx, Xxxx 00000 and to the Legal Department, 1800 Xxxxx Road,
Columbus, Ohio.
(b) if to the Tenant, at the Premises, or at such other address as Tenant
may designate by written notice.
All notices shall be effective upon receipt or refusal of receipt.
Section 36. Brokers
-------------------
INTENTIONALLY DELETED
Section 37. Memo of Lease
-------------------------
Landlord and Tenant agree not to record this Lease, and instead agree to
execute and acknowledge a Memorandum of Lease for recording ("Memorandum"),
attached to this Lease as Exhibit "H". Landlord and Tenant agree that the
Memorandum will be suitable for recording with the County Recorder of the county
in which the Center is situated and agree that such Memorandum shall be
recorded. Landlord shall be obligated at its expense to record the memorandum
and forward recorded copies to Tenant.
Section 38. Estoppel Certificate
--------------------------------
Each party shall, upon request from the other at any time and from time to
time, execute, acknowledge and deliver to the other a written statement within
twenty (20) days of the request therefor certifying as follows: (i) that this
Lease is unmodified and in full force and effect (or, if there has been a
modification, stating the nature thereof and that the Lease is in full force and
effect as modified); (ii) that to the best of such party's knowledge, there are
no uncured defaults on the part of the other party (or if any such defaults
exist, the specific nature and extent thereof); (iii) the date to which any rent
and other charges under the Lease have been paid in advance, if any; and (iv)
such other matters as such party may reasonably request. Tenant acknowledges
that any such statement requested by Landlord and delivered by Tenant shall be
relied upon by a prospective purchaser, mortgagee or encumbrancer of the
Premises or the Center or any prospective assignee of any such mortgage or
encumbrance thereof.
Section 39. Landlord's Consent
------------------------------
In any case where Landlord's approval or consent is required under the
terms of this Lease, such consent or approval shall be in writing and shall not
be unreasonably or arbitrarily withheld by the Landlord, nor shall the Landlord
require the payment of any money before giving such consent other than a
reasonable charge for the processing of the application for and preparation of
the consent.
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Section 40. Marketable Title
----------------------------
Landlord hereby covenants and warrants (i) that Landlord owns indefeasible
title to the Center; (ii) there are no legal impediments to the use by Tenant of
the Premises as a full-line off price department store in accordance with the
terms of this Lease; (iii) the Center is free and clear of any and all liens and
encumbrances, easements and restrictions, except ad valorem taxes not due and
payable and those matters set forth in Exhibit "C" hereto, none of which shall
encroach upon the Premises or hinder or interfere with Tenant's use and
enjoyment thereof in accordance with this Lease; (iv) that Landlord has full
right and is duly authorized to enter into the terms of this Lease, and that the
execution of this Lease in no way violates or breaches any of the material terms
and conditions of any of the documents forming the title to the Center, or
violates or breaches any of the terms and conditions of any mortgages or other
documents encumbering the Center; and (v) that the Tenant at all times shall
have unobstructed and adequate means of ingress and egress between each of the
entrances to the Premises and a public street or public highway, as shown on
Exhibit "A". Before tendering the Premises for fixturing, the Landlord shall
deliver to the Tenant a title insurance binder or opinion of counsel evidencing
the state of Landlord's title as of a date not earlier than the date hereof and
an opinion of counsel regarding the state of such title shall be delivered to
the Tenant sixty (60) days prior to acceptance of possession by the Tenant. The
aforementioned title insurance binder shall contain as an exhibit any deed
restrictions on the Premises or Center. Tenant and Landlord covenant that the
signatures to this Lease have full right and power to enter into this Lease for
the full Term and upon all conditions contained herein. This Lease shall become
effective only upon execution and delivery thereof by Landlord and Tenant.
Section 41. Governing Law
-------------------------
This Agreement shall be governed by and construed in accordance with the
laws of the state in which the Premises are located.
IN WITNESS WHEREOF, the parties have executed this Agreement of Lease
effective the date first set forth above.
Signed and Acknowledged
in the presence of:
LANDLORD:
JUBILEE LIMITED PARTNERSHIP
an Ohio limited partnership
BY: Schottenstein Professional Asset Management
----------------------- Corporation, a Delaware Corporation
its Managing General Partner
----------------------- BY:
-------------------------------------------
Xxx Xxxxxxxxxxxxx, President
TENANT:
VALUE CITY DEPARTMENT STORES, INC.
----------------------- a Delaware Corporation
BY:
----------------------- -------------------------------------------
Xxxxxx X. Xxxxxx, Pres. and C.E.O.
25
STATE OF __________ :
: SS.
COUNTY OF _________ :
The foregoing instrument was acknowledged before me this ____ day of
________________, 19__, by _______________________________,
______________________ of _______________________________________, a
_____________________________, for and on behalf of said
-------------------------------
Notary Public
STATE OF __________ :
: SS.
COUNTY OF _________ :
The foregoing instrument was acknowledged before me this ____ day of
________________, 19__, by _______________________________,
______________________ of _______________________________________, a
_____________________________, for and on behalf of said
-------------------------------
Notary Public
04/29/99
26
EXHIBIT C
Below is a list of the retail uses that are currently restricted in the
Center:
