1
Exhibit 10.2.11.a
LEASE CANCELLATION AGREEMENT
----------------------------
THIS LEASE CANCELLATION AGREEMENT is made at Mentor, Ohio, this____ day
of April, 2001, by and between ▇▇▇▇▇▇▇/WEST FINANCE PARTNERS V, LIMITED
PARTNERSHIP (hereinafter called the "Lessor"), and D.I.Y. HOME WAREHOUSE, INC.
(hereinafter called the "Lessee").
WHEREAS, pursuant to a Lease dated August 6, 1971 (which Lease,
together with all amendments, is hereinafter referred to as the "Prime Lease"),
Developers Diversified leased the property described on Exhibit A (the
"Property") to ▇.▇. ▇▇▇▇▇▇ Company; and
WHEREAS, a Memorandum of Lease was filed for record on December 23,
1971 in Volume 18, Page 996, and an Amendment to Memorandum of Lease was filed
on September 7, 1972 in Volume 19, Page 543, and an Amendment to Lease and
Reservation, Non-exclusive Right, Privilege and Easement was filed for record on
July 29, 1975 in Volume 21, Page 1241, all in the Lake County Records; and
WHEREAS, Lessor is the successor to Developers Diversified under the
Prime Lease; and
WHEREAS, pursuant to an Assignment and Assumption of Lease and Sublease
dated December 22, 1994 (the "Lease") between KMART CORPORATION f/k/a ▇.▇.
▇▇▇▇▇▇ Company (hereinafter called "Kmart") and the Lessee, the Lessee leases
the property described on Exhibit A (the "Property"); and
WHEREAS, the Lessor is the successor to Kmart's interest under the
Lease;
WHEREAS, a Notice of Assignment and Assumption of Lease respecting the
Lease was filed for record on January 6, 1995 in Volume 1081, Page 868 in the
Lake County Records; and
WHEREAS, the Lessee desires to cancel and terminate the Lease; and
2
WHEREAS, the Lessor is willing to accept such cancellation and
termination as of the _____ day of April, 2001 (the "Effective Date");
NOW, THEREFORE, in consideration of the aforesaid, the Lessor and the
Lessee agree as follows:
1. CANCELLATION OF THE LEASE. The Lease is deemed canceled and
terminated as of the Effective Date. Lessee agrees that it is responsible for
the payment of all rent and the performance and observance of all of the other
terms, conditions, covenants and agreements under the Lease to the Effective
Date.
2. WARRANTIES. The Lessor hereby represents and warrants to the Lessee
that it is the true and lawful owner of the Property, that the Lessor is the
true and lawful owner of KMart's interest under the Lease, and that it has good
right and full power and authority to execute and deliver this Agreement. The
Lessee hereby represents and warrants to the Lessor that it is the tenant under
the Lease, that it has not assigned or conveyed its interest thereunder, and
that it has good right and full power and authority to execute and deliver this
Agreement.
3. BINDING EFFECT. This Agreement and the agreements, covenants,
benefits and obligations created hereby will inure to the benefit of and are
binding upon the parties hereto and their respective heirs, predecessors,
successors, transferees, lessees and assigns.
4. MODIFICATION OR AMENDMENT. This Agreement may not be modified or
amended in any respect or rescinded, in whole or in part, except with the
express written consent of the Lessor and the Lessee. This Agreement contains
the entire agreement between the parties with respect to the subject matter set
forth herein, and all prior agreements, discussions and negotiations are hereby
superceded.
5. NOTICES. All notices, requests, waivers or other communications
given under this Agreement must be in writing and must be deemed properly served
when delivered by hand or
2
3
when sent, postage prepaid by United States registered or certified mail, return
receipt requested, or by overnight express mail courier addressed to the last
known address of the intended recipient.
6. GOVERNING LAW. This Agreement will be governed and construed in
accordance with the laws of the State of Ohio.
7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts each of which will be deemed an original and all of which together
will be deemed to constitute one and the same instrument and will be effective
upon execution of any one or more counterparts by each of the parties hereto and
delivery of one or more of such counterparts (or a facsimile thereof) to the
other party.
IN WITNESS WHEREOF, the parties have executed this Lease Cancellation
Agreement the day and year first above written.
Signed in the presence of: ▇▇▇▇▇▇▇/WEST FINANCE PARTNERS V,
LIMITED PARTNERSHIP
--------------------------------- By: ▇▇▇▇▇▇▇ Capital LLC, General Partner
--------------------------------- By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Member
LESSOR
D.I.Y. HOME WAREHOUSE, INC.
By:
--------------------------------- --------------------------------------
Title
And:
--------------------------------- --------------------------------------
Title
LESSEE
3
4
STATE OF NEW YORK )
)SS:
COUNTY OF NEW YORK )
On the ____ day of April, 2001, before me, the undersigned, a Notary
Public in and for said State, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇, personally
known to me, or proved to me, on the basis of satisfactory evidence, to be the
individual whose name is subscribed to the within instrument, and acknowledged
to me that he executed the same in his capacity, and that by his signature on
the instrument, the individual, or the person upon behalf of which the
individual acted, executed the instrument.
---------------------
NOTARY PUBLIC
STATE OF OHIO )
)SS:
COUNTY OF______ )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared D.I.Y. HOME WAREHOUSE, INC., by _______________________, its
_________________ and ____________________________, its ___________________,who
executed the foregoing instrument and who acknowledged that they did sign the
foregoing instrument for and on behalf of said corporation being thereunto duly
authorized, and that the same is their free act and deed individually and as
such officers and the free act and deed of said corporation. IN TESTIMONY
WHEREOF, I have hereunto set my hand and official seal at _________________,
Ohio, this _____ day of April, 2001.
---------------------
Notary Public
4
5
EXHIBIT A TO LEASE CANCELLATION AGREEMENT
EXHIBIT A
