1
Exhibit 10.1
XXXX'X BUILDING
---------------
SUBLEASE
--------
THIS SUBLEASE made as of this 15th day of September, 1997,
between XXXX'X BUILDING, LTD., a limited partnership organized under the laws of
the State of Ohio ("Sublessor"), and CIAO PLAYHOUSE, INC., an Ohio corporation
("Sublessee").
W I T N E S S E T H:
--------------------
Playhouse Square Foundation (the "Prime Lessee") leases from
the Board of Commissioners of Cuyahoga County, Ohio (the "Owner") certain
premises commonly known as the "Xxxx'x Building" (the "Building") pursuant to
Indenture of Lease dated as of September 1, 1987, as amended by Amendment No. 1
to Indenture of Lease dated as of May 5, 1992 (the "Lease").
The Lease is to be further amended by Amendment No. 2 to be
dated as of September 1, 1997 to, among other matters, extend the base lease
term until December 31, 2037.
Sublessor has leased from the Prime Lessee (the "First Tier
Sublease") a portion of the Building including that which is described herein as
the "Premises".
Sublessee desires to sublease the Premises so described from
Sublessor and Sublessor has agreed to and does hereby sublease to Sublessee,
subject to the Lease and First Tier Sublease, the portion of the first and
second floors of the Building consisting of ________ square feet of floor space
(the "Premises") as shown and described on the attached plan marked Exhibit A,
together with rights in common with others to the use of the common areas of the
Building in connection with the use of the Premises for restaurant and related
purposes as herein provided.
This lease is made on and is subject to the following terms
and conditions:
ARTICLE 1. TERM.
(A) The initial term of this lease shall be ten (10) years
beginning on the earlier of (i) the 1st day of January, 1998 or (ii) the date on
which Sublessee opens the Premises for business (such date being hereinafter
referred to as the "Commencement Date") and ending ten (10) years thereafter,
but no later than the 31st day of December, 2007 (unless such term shall sooner
cease and terminate as hereinafter provided).
(B) For the purpose of this lease, the term "lease year"
shall mean a period of 12 consecutive calendar months. The
2
first full lease year shall commence on the first day of the calendar month
following the month in which the Commencement Date occurs or January, 1998,
whichever is earlier, and each succeeding lease year shall commence on the
anniversary date of the preceding lease year. Any portion of the lease year
which is less than a lease year shall be a partial lease year.
ARTICLE 2. RENT.
(A) MINIMUM RENT.
(i) Sublessee covenants and agrees to pay to
Sublessor annual minimum rent pursuant to the schedule set in Appendix
I attached hereto. The minimum annual rent shall be paid by Sublessee
without notice, demand or set-off in equal monthly installments, in
advance, on or before the first day of each calendar month of this
Lease as set forth in such schedule. Rent for the first full month of
the term and any preceding partial calendar month shall be payable upon
the Commencement Date, provided, however, that in no event shall the
minimum rent obligation commence before the Sublessee opens the
Premises for business.
(B) REAL ESTATE TAXES AND ASSESSMENTS.
(i) Sublessee will pay to Sublessor as additional
rent, ______% of the real estate taxes and assessments assessed against
the parcel of which the Premises are a part, or the amount of such
taxes and assessments levied or assessed solely against the Premises,
to the extent that such taxes relate to the term of this lease, it
being agreed that to the extent such taxes relate to a period a portion
of which is outside of such term, such taxes shall be prorated on a per
diem basis.
For purposes of this paragraph, a tax xxxx shall be sufficient
evidence of the real estate taxes assessed against the parcel or the Premises.
Upon receipt of the tax xxxx by Sublessor, Sublessor shall give notice by
supplying a copy of such xxxx to Sublessee and Sublessee shall have thirty (30)
days from the receipt of the notice to make the rental payment required pursuant
to Article 2(B).
(C) PERCENTAGE RENT.
(i) In addition to the minimum rent and other charges
due Sublessor under the lease, Sublessee covenants and agrees to pay to
Sublessor fifty percent (50%) of Sublessee's Net Income, as defined in
Exhibit G attached hereto and made a part hereof.
(ii) Payments under the provision of Article 2(C)(i)
above, shall be due and payable sixty (60) days
- 2 -
3
after the first thirteen (13) weeks in any lease year or partial lease
year and sixty (60) days after the end of each succeeding 13 week
period in such lease year. The first 13 week period shall commence on
the first day of the first lease year, and each successive 13 week
period shall commence on the first day of the week immediately
following the end of the preceding 13 week period.
Within sixty (60) days after the end of each lease year,
Sublessee shall deliver to Sublessor a statement, together with any additional
payment due, certified by Sublessee's chief financial officer of the Net Income
for said lease year.
For any partial lease year the Percentage Rent shall be
prorated on the basis of the ratio of the number of days in such partial lease
year to 365. If the commencement date of this lease is a day other than the
first day of a month, the minimum annual rent and any other monthly charges
shall be prorated on the basis of the ratio of the number of days remaining in
the month from the rent commencement date to the number of days in the month.
(iii) During normal business hours Sublessor shall
have the right from time to time to have its accountants or
representatives audit all statements of Net Income and, in connection
with such audits to examine all of Sublessee's records (including all
supporting data). Sublessee shall make all such records readily
available for such examination at its headquarters which currently is
located in _______, ________. If any such audit discloses that the
actual Net Income by Sublessee exceeded that reported by more than two
percent (2%), Sublessee shall pay the cost of such audit and
examination, but not to exceed $3,000. If any such audit discloses that
the actual Net Income by Sublessee exceeded that reported by more than
five percent (5%), Sublessee shall pay one hundred and fifty percent
(150%) of the amount of the understatement in percentage rent. If any
such audit discloses that the actual Net Income by Sublessee exceeded
that reported by more than five percent (5%) for two (2) consecutive
lease years, Sublessor shall have the right to terminate this lease by
delivering written notice of termination to Sublessee within thirty
(30) days after receipt of the results of the audit. Any information
obtained by Sublessor pursuant to the provisions of this Article 2
shall be treated as confidential, except in any litigation or
arbitration proceedings between the parties and, except further, that
Sublessor may disclose such information to prospective buyers,
investors and lenders.
(D) Sublessee shall pay as additional rent any and all other
charges which are the responsibility of Sublessee under this lease and any and
all sums which may become due by reason of
- 3 -
4
the failure of Sublessee to comply with any or all of the covenants of this
lease and any and all damages, costs and expenses which Sublessor may suffer or
incur by reason of any default by Sublessee or failure on Sublessee's part to
comply with the covenants of this lease, and each of them. In the event
Sublessee disputes its liability for such additional rent, Sublessee may protest
the payment thereof, provided Sublessee, within ten (10) days following
Sublessor's demand for payment, (i) gives Sublessor a good faith reason for such
protest, in writing, and (ii) places funds equal to such disputed amount in an
interest bearing account. Upon resolution of the dispute the prevailing party
shall receive all funds deposited in such account together with any interest
accrued thereon.
ARTICLE 3. CONTINGENCY. If the parties shall be unable to
obtain the requisite permits for the work listed in Exhibit D of this lease on
or before November 15, 1997, provided the reason for the nonissuance of such
permits is due to no fault on the part of the Sublessee, and provided the
Sublessee used its best efforts to assist in obtaining such permits, Sublessee
shall have the right to terminate this lease on written notice to Sublessor with
no further liability on the part of either party to the other.
ARTICLE 4. SUBLESSOR'S AND SUBLESSEE'S WORK.
(A) Sublessor shall complete at its expense the work to the
building and/or the Premises as shown and specified in Exhibit B. Sublessor
shall also complete at Sublessor's expense, the work to the Premises and/or make
or cause to be made the expenditures as shown and specified in Exhibit C. The
Work and expenditures set forth in Exhibits B and C shall be called "Sublessor's
Work." Sublessor's Work shall be deemed approved by Sublessee in all respects
when Sublessee opens for business in the Premises except for such items of
Sublessor's work which are not completed or do not conform to Exhibits B and C
and as to which Sublessee shall have given notice to Sublessor within ninety
(90) days after Sublessee opens for business. Any disagreement which may arise
between Sublessor and Sublessee with reference to the work to be performed by
either Sublessor or Sublessee pursuant to this lease shall be resolved by the
decision of three architects, one of whom shall be chosen by the Sublessor, one
of whom shall be chosen by the Sublessee, and one of whom shall be chosen by the
other two architects, which decision shall be final and binding upon the
parties. Sublessor shall assign and transfer to the Sublessee any warranties
made to Sublessor by any contractors or subcontractors for the work outlined in
Exhibit B and C, to the extent that such warranties are so transferable without
additional cost to the Sublessor.
(B) Sublessee shall complete the work and installations to the
Premises in accordance with Sublessee's floor plan and reflected ceiling plan
attached hereto as Exhibit
- 4 -
5
D and in accordance with the outline specifications and schedules which
Sublessee agrees to provide to Sublessor within thirty (30) days of the date of
this Lease and which will subsequently be attached hereto as Exhibit E,
("Sublessee's Work").
(C) Sublessee's Work shall be performed in a good and
workmanlike manner, lien free, and in compliance with all applicable
governmental laws, rules and regulations and in accordance with all of the other
terms and conditions of this lease. Any contractor and/or subcontractor which
Sublessee elects to have perform Sublessee's Work in the Premises is subject to
Sublessor's prior written consent which consent shall not be unreasonably
withheld and which shall be given, if consent is to be given, within five (5)
business days after a written request has been received by Sublessor from
Sublessee. If such consent is not given or refused within said five days,
Sublessor shall be deemed to have consented to such contractor and/or
subcontractor. All signs used on the Premises shall be in accordance with the
sign plan as set forth in Article 38, below.
(D) Sublessee agrees to submit to Sublessor as provided in
Exhibits D and E, plans and specifications covering Sublessee's Work, in such
detail as Sublessor may reasonably require, and Sublessee agrees not to commence
work on any of the aforesaid Sublessee's Work, whether initially or at any time
during the term of this lease, until Sublessor has approved such plans and
specifications in writing and until Sublessee shall have supplied all the
details of all items depicted in Exhibit D as prerequisites to the commencement
of Sublessee's Work. Sublessee shall commence Sublessee's Work within five (5)
days after Sublessee takes possession of the Premises, or thereafter if
otherwise directed by Sublessor in writing the parties acknowledging that all of
the work on the Premises, whether characterized as Sublessee work or Sublessor
work, must be coordinated and take into account the theatre performance
schedules for all of the Playhouse Square theatres. Subject to such condition,
Sublessee shall diligently thereafter complete such work. Sublessee shall have
no claim whatsoever for damages against Sublessor for any delay in the date on
which the Premises shall be ready for commencement of Sublessee's Work.
(E) If there is some defect in the items supplied by or on
behalf of Sublessee as set forth in Exhibits D or E, or if Sublessee is not
performing Sublessee's Work consistent with Sublessee's plans and specifications
as approved by Sublessor, and Sublessee fails to cure such defect or defects in
the items to be supplied or in the performance of Sublessee's Work within 48
hours of notice thereof from Sublessor, Sublessor shall have the right, in
addition to all other remedies of Sublessor and without affecting the validity
or continued effectiveness of this lease, to take possession of the Premises and
physically prevent the continuation of the performance of Sublessee's Work until
such time as Sublessor in its sole judgment has determined that
- 5 -
6
the performance contemplated herein by Sublessee will proceed under the terms
hereof.
ARTICLE 5. USE.
(A) The Premises shall be occupied and used only for a
Restaurant and Banquet Facility.
(B) Sublessee agrees to operate one hundred percent (100%) of
the Premises at all times during the term of this lease unless prevented from
doing so because of fire, accident, or acts of God. Sublessee agrees to keep
open the Premises and diligently operate the business conducted therein, using a
sufficient number of adequately trained personnel for efficient service, during
such hours and on such days and evenings of the week as may be determined by
Sublessor and as generally set forth in the schedule set forth in Exhibit H.
Sublessee agrees to conduct Sublessee's business at all times in a first-class
manner consistent with reputable business standards and practices. Sublessee
agrees to keep the Premises and its stock in trade in first-class condition.
(C) Sublessee agrees promptly to comply with all laws,
ordinances, orders and regulations affecting the Premises and the cleanliness,
safety, operation and use thereof. Sublessee also agrees to comply with the
reasonable recommendations of any insurance company, inspection bureau or
similar agency with respect to the Premises. Sublessee agrees not to install any
electrical equipment or permit any use of the Premises that overloads the
applicable utility lines servicing the Premises other than as shown on plans and
specifications attached hereto.
(D) Sublessee agrees not to (a) permit any unlawful or immoral
practice to be carried on or committed on the Premises; (b) make any use of or
allow the Premises to be used in any manner or for any purpose that might
invalidate or increase the rate of insurance thereof; (c) keep or use or permit
to be kept or used on said Premises any flammable fluids or explosives other
than items consistent with normal and responsible restaurant operations, without
in each instance obtaining the prior written approval of Sublessor; (d) use the
Premises for any purpose whatsoever which might create a nuisance or injure the
reputation of the Premises or of the Building; (e) deface or injure the Building
or Premises other than signs and awnings approved by Sublessor; (f) overload the
floors (other than may be implicit in the Sublessee's plans and specifications
approved by Sublessor); or (g) commit or suffer any waste. Sublessee agrees to
pay any increase in the cost of insurance to Sublessor as a result of any
unauthorized use of the Premises by Sublessee, but such payment shall not
constitute in any manner a waiver by Sublessor of its right to enforce all of
the covenants and provisions of the lease. Sublessor agrees that the use set
forth in this Article 5 is deemed to not cause an increase in insurance.
- 6 -
7
ARTICLE 6. OCCUPANCY, ASSIGNMENT AND SUBLETTING.
(A) Sublessee shall not occupy nor permit others to occupy the
Premises, or any part thereof, other than as hereinbefore specified, nor shall
Sublessee voluntarily, involuntarily or by operation of law assign its
leasehold, or mortgage or pledge this lease, or sublet the Premises without the
prior written consent of Sublessor; provided that so long as Sublessee shall
remain liable under this lease. Sublessee shall have the right to assign this
lease or sublet the Premises without Sublessor's consent to a corporation or
other entity wholly owned, controlled by or in common control with Sublessee;
provided, further, that such assignee continues the use of the Premises as
contemplated by Article 5 and the additional rent payment remains due and
payable and calculated as provided herein. If Sublessor does consent in writing
to any assignment or sublease, such consent shall not in any way release
Sublessee from liability under any of the covenants or conditions of this lease,
and no such consent shall apply to any future or further assignment or sublease
nor bind Sublessor to give consent to any further or future assignment or
sublease. Any assignees or sublessees will be bound by the terms of this lease
and any modifications hereof as though such assignee or sublessee were an
original party hereto.
ARTICLE 7. ALTERATIONS. Sublessee will make no material
alterations, additions or improvements to the Premises without first submitting
a detailed description thereof to Sublessor (and if required by the Lease or
First Tier Sublease, to the Owner or Prime Lessee) and obtaining Sublessor's
and, if necessary, the Prime Lessee's and the Owner's prior written approval.
Notwithstanding the above, Sublessor shall not unreasonably withhold or delay
approval and in any event shall either approve or reject proposed alterations,
additions or improvements within thirty (30) days after request by Sublessee if
the following conditions are met:
(i) such alterations, additions or improvements
are reasonable non-structural alterations,
improvements or additions;
(ii) such alterations, improvements and additions
are entirely within the interior of the
Premises and will not affect the external
appearance of the Premises; and
(iii) such alterations, improvements or additions
do not affect the utilities supplied to the
Building outside of the Premises, the use
thereof by any other Tenant or the capacity
of the Building's utility systems available
for use by Sublessor or any other Tenant.
- 7 -
8
Sublessor further agrees that notwithstanding the first sentence of this Article
7, Sublessee may make reasonable alterations, relocations and additions to its
trade fixtures, furniture, equipment and other personal property not affixed to
the Building or any part thereof, in connection with its day-to-day operations,
without the consent of Sublessor. Sublessee's Work and all other alterations,
additions or improvements made by Sublessee and all fixtures permanently
attached to the Premises shall become the property of Sublessor and remain on
the Premises; or, at Sublessor's option, after written notice to Sublessee, any
or all of the foregoing shall be removed at the cost of Sublessee before the
expiration or sooner termination of this lease, and in such event Sublessee
shall repair all damage to the Premises caused by either installation or
removal. Sublessee shall not erect or place, or cause or allow to be erected or
placed, any sign, advertising matter, showcase or other article or matter in or
upon the stairways, lobbies, passages, outside walls, windows or sidewalks or
any other areas in, on or about the Building without the prior written consent
of Sublessor, other than those items approved by Sublessor at the time of
execution of this lease agreement.
ARTICLE 8. RULES AND REGULATIONS. The rules and regulations to
be attached to this lease no later than March 31, 1998 and marked Exhibit "F"
and such reasonable additions or modifications thereof as may from time to time
be made by Sublessor, the Prime Lessee or Owner, upon written notice to
Sublessee, shall be deemed a part of this lease with the same effect as though
written herein. Sublessee agrees that said rules and regulations will be
faithfully observed by Sublessee and Sublessee's employees and invitees.
ARTICLE 9. FIRE OR OTHER CASUALTY; WAIVER OF
SUBROGATION.
(A) If during the term of this lease or any renewal or
extension thereof, the Building is so damaged by fire or other casualty that the
Premises are rendered untenantable (whether or not the Premises are damaged) and
the Building cannot be repaired within one hundred eighty (180) working days,
then, at Sublessor's or Sublessee's option (which must be exercised, if at all,
by notice in writing given not more than thirty (30) days after such damage to
the other party), this lease shall terminate as of the date of such damage. In
such case, Sublessee shall pay the minimum rent, percentage rent and other
charges apportioned to the time of the damage, and Sublessor may enter upon and
repossess the Premises without further notice and with the right to use
reasonable force to take possession. If such repairs can be made within the said
one hundred eighty (180) working days and are covered by insurance the proceeds
of which are sufficient to rebuild or if Sublessor or Sublessee do not elect to
terminate this lease as aforesaid, then, to the extent that Sublessee is not
liable for such damage or repairs (due to the intentional
- 8 -
9
tortious or criminal act of Sublessee), the Building will be repaired by Owner
pursuant to the Lease. Owner may enter the Premises to repair the damage, and
rent shall be apportioned and suspended while Sublessee is deprived of use of
the Premises. If the Premises shall be only slightly damaged or if the damage to
the Building does not render the Premises untenantable then, unless Sublessee is
liable for such damage or repairs (due to the intentional tortious or criminal
act of Sublessee) Owner or Sublessor will repair whatever portion, if any, of
the Premises which may have been damaged by the fire or other insured against
casualty and which is Sublessor's or Owner's obligation to maintain under this
lease or the Prime Sublease or the Lease, and the rent shall not be apportioned
or suspended. If Sublessor or Owner repairs or rebuilds the Building as
aforesaid, Sublessee shall promptly repair or replace Sublessee's Work, its
fixtures, furniture, furnishings, floor coverings and stock in trade and
promptly reopen for business. If Sublessor does not elect to terminate this
lease as aforesaid and has not completed its repair or replacement of the
Building or the Premises within the aforesaid 180 working days, Sublessee may
elect to terminate this lease upon 30 days written notice to Sublessor, without
further cost or expense to Sublessee.
(B) Notwithstanding any other provision herein, Sublessor and
Sublessee hereby release each other from liability for loss or damage to the
property of the party granting such release, even if the loss or damage occurred
through the negligence of such other party or its partners, agents, servants,
invitees or employees, provided that this release shall be effective only with
respect to loss or damage (i) covered by insurance and (ii) occurring during
such time as the relevant insurance policy of the party granting such release
contains a clause to the effect that this release does not affect such policy or
the right of the insured to recover thereunder. Sublessor's policy shall have
such a waiver of subrogation clause, but if an additional premium is charged
therefore, the party benefiting therefrom, if it desires to have the waiver,
will pay to the other the amount of such additional premium promptly upon being
billed therefore.
ARTICLE 10. SUBLESSOR'S RIGHT TO ENTER.
(A) Sublessee will permit Sublessor, Sublessor's agents or
employees or any other person or persons authorized by Sublessor to inspect the
Premises at any reasonable time upon reasonable notice to Sublessee, and to
enter the Premises if Sublessor shall so elect, to make reasonable alterations,
improvements or repairs to the Building, or for any other reasonable purpose
related to the operation or maintenance of the Building, including showing the
space to prospective tenants during the last six (6) months of the initial term
of this lease and any renewal term. If at any time during the last three months
of the initial term of this lease or any renewal term,
- 9 -
10
Sublessee shall have removed all or substantially all of Sublessee's property
from the Premises. Sublessor may enter to alter, renovate and redecorate the
Premises, without abatement of rent, or in any other manner modifying the rights
and obligations of any party to this lease.
(B) In the event an emergency arises due to fire or other
casualty, Sublessor shall have the right of immediate entry into the Premises
for the purpose of mitigating the damage thereto. Sublessor shall in no way be
liable to the Sublessee for such entry other than for the negligence or willful
misconduct on the part of the Sublessor.
(C) If Sublessee shall not be personally present to open and
permit an entry into the Premises at any time when for any reason an entry is
authorized under this lease, Sublessor or Sublessor's agents may enter by a
master key, or may forcibly enter, without rendering Sublessor or its agents
liable for any damages therefor, and without in any manner affecting the rights
or obligations of any party to this lease, provided Sublessor or its agents
shall accord reasonable care to Sublessee's property.
ARTICLE 11. INSURANCE.
(A) Sublessee at its sole cost and expense, agrees to purchase
and keep in force and effect during the term hereof insurance under policies
issued by insurers reasonably acceptable to Sublessor on its merchandise,
inventory, contents, furniture, fixtures, furnishings, floor coverings,
equipment and other personal property located in the Premises, naming as insured
and protecting Sublessor, its agents and employees. Sublessee and, if required,
Owner from damage or other loss caused by fire or other casualty including, but
not limited to, vandalism, perils covered by extended coverage, theft, sprinkler
leakage, water damage (however caused), explosion of heating and cooling or
similar apparatus, and other similar risks in amounts not less than the full
insurable replacement value of such property. Further, Sublessee agrees to carry
business interruption insurance in such amounts and for such a period of time as
the parties hereto shall agree, in the exercise of reasonable judgment.
(B) Sublessee agrees to deliver, or cause to be delivered to
Sublessor at least five (5) days prior to the commencement of Sublessee's Work
under Article 4 hereof, a policy or certificate of insurance from a company
satisfactory to Sublessor providing public liability and property damage
coverage in the minimum amount of one million dollars ($1,000,000) for each
occurrence and in the aggregate naming Sublessee, its general contractor, all
subcontractors, and Sublessor, its employees and agents as insured parties
endorsed so as to cover any and all liability arising out of, or in any manner
connected with, the work to be performed on the Premises by Sublessee and,
- 10 -
11
a policy or certificate of insurance evidencing worker's compensation coverage
in the minimum amount required by state law.
(C) Sublessee agrees to maintain during the term hereof,
effective on the date Sublessee takes possession of the Premises, insurance
coverage with respect to the Premises for bodily injury, property damage and
personal injury liability and contractual liability insurance, each with a limit
of liability of five million dollars ($5,000,000) for each occurrence and in the
aggregate, all such insurance to include Sublessor and its employees and agents
as insured parties.
(D) Sublessee shall provide Sublessor with copies of policies
or certificates of coverage prior to the date Sublessee takes possession of the
Premises and from time to time thereafter as required by Sublessor evidencing
that the aforesaid insurance is in full force and effect. All policies and
certificates shall provide that a minimum of twenty (20) days' written notice
shall be given to Sublessor by any such insurance company prior to the
cancellation, termination or change of such coverage. All insurance herein
required shall be deemed to be additional obligations of Sublessee and not in
discharge of, or a limitation to, Sublessee's obligation to indemnify Sublessor
and its employees and agents under Article 13 hereof.
(E) Sublessee will not do or commit, or suffer or permit to be
done or committed, any act or thing which shall cause the insurance policies on
the Building (or any such policy) to become void or suspended, or which shall
cause the Building to be considered a more hazardous risk.
ARTICLE 12. RELEASE OF SUBLESSOR. Sublessor shall not be held
responsible for, and is hereby expressly relieved from, any and all liability by
reason of any injury, loss, or damage to persons or property in or about the
Premises, whether the same be due to fire, breakage, leakage, water flow, steam,
gas, use, misuse, abuse of elevators or defects therein, hatches, openings,
defective failure of water supply, or light or power, defects in electrical
wiring, plumbing or other equipment or mechanism, wind, lightning storm or any
other cause whatsoever, whether the loss, injury or damage be to the person or
property of Sublessee or any other person, unless such injury, loss or damage is
proximate result of the gross negligence of Sublessor, its agents or its
employees occurring entirely after the date of this lease.
ARTICLE 13. INDEMNITY. Sublessee agrees to indemnify, defend
and hold harmless Sublessor, its agents and employees, from and against all
claims, liabilities, losses, damages and expenses for injury to or death of any
person of loss of or damage to property in or upon the Premises and including
the person and property of Sublessee, its employees, agents, invitees, licensees
or others, it being understood and agreed
- 11 -
12
that all property kept, stored or maintained in or upon the Premises or in the
building shall be at the risk of Sublessee. The foregoing indemnity shall be in
addition to the Sublessee's obligation to supply the insurance as required by
Article 11 and not in discharge of or substitution for same.
If any damage to the Premises or other property of Sublessor
results from any act or neglect of Sublessee, its agents or employees, Sublessor
may at its option repair such damage, and Sublessee shall promptly on demand
reimburse Sublessor for the cost thereof to the extent same is not reimbursed to
Sublessor under Sublessor's insurance.
ARTICLE 14. REPAIR AND MAINTENANCE.
(A) Sublessee, at its sole cost and expense, shall make
additions, improvements, alterations and repairs to or on the Premises,
including the storefront, and to utility equipment used exclusively for the
Premises (including separate utility meters and all portions of electrical and
mechanical systems located within the Premises or servicing the Premises
exclusively) and to utility lines to the point of connection for Sublessee which
may be required to keep same in good order, condition and repair, and sanitary,
clean, safe, and in sightly appearance at all times during the term hereof,
including those required by any public authority unless specifically made
Sublessor's responsibility under the next paragraph. Any such work by Sublessee
shall be subject to Sublessor's prior written approval, not to be unreasonably
withheld or delayed, and Sublessor may, as agent for and on account of
Sublessee, but shall not be obligated to, deal directly with any such
authorities respecting their requirements for additions, improvements,
alterations and repairs. Sublessee's responsibility hereunder shall include,
without limitation and at its sole cost, replacement of mechanical equipment
required for the Premises and included within Sublessee's Work, fixtures, glass
(with glass of the same size and quality), floor covering and ceiling materials,
doors and door hardware and the decoration of the interior and storefront of the
Premises in order to maintain at all times a clean and sightly appearance. If
Sublessee refuses or neglects to make such replacements or to make repairs or to
maintain the Premises, or any part thereof, in a manner satisfactory to
Sublessor, using reasonable judgment, Sublessor shall have the right, upon
giving Sublessee ten (10) days written notice, (except in situations reasonably
deemed to be an emergency by Sublessor, in which case said notice provision is
hereby waived) if it elects to do so, to make such repairs or perform such
maintenance on behalf of and for the account of Sublessee and Sublessee shall
pay Sublessor's cost of such work promptly upon receipt of a xxxx therefore.
Sublessee shall not be responsible for any structural repairs to the Building.
- 12 -
13
(B) Sublessor agrees that Owner has agreed in the Lease to
keep the foundations, utility lines external to the Premises from the point of
connection for Sublessee, exterior walls other than the storefront and all
structural systems of the Building in good condition and repair. Sublessor
agrees to use its best efforts to cause Prime Lessee to cause Owner to perform
any such necessary repairs. Sublessor shall not be liable to Sublessee for any
damages caused by the items mentioned in the previous sentence being out of
repair unless Sublessor has had reasonable opportunity to cause the same to be
repaired after Sublessee has notified Sublessor, in writing, of the need of
same.
(C) During the term of this lease, Sublessee agrees to employ
a contractor or other person acceptable to the Sublessor in the exercise of
reasonable judgment, to perform annual maintenance and/or preventive maintenance
to the heating, cooling and ventilating units on the Premises. Sublessee further
agrees to provide and to pay for (i) regular nightly cleaning and janitorial
services for the Premises and (ii) window washing for the interior and exterior
of the Premises at least, once every month.
ARTICLE 15. UTILITIES.
(A) If steam, electricity, water and sewer are supplied by
Sublessor, Sublessee shall purchase the same from Sublessor or Sublessor's agent
at a base rate consisting of the charges, terms and rates for like quantities
and character of service in the utility company service classification in effect
at the time said service is used and under which Sublessor purchases service.
(B) Sublessee shall comply with all reasonable rules and
regulations which from time to time may be promulgated by Sublessor to conserve
fuel and/or energy. Sublessor shall not be liable to Sublessee for any loss or
damage or expense which Sublessee may sustain or incur if either the quantity or
character of utility service is changed without fault of Sublessor or is no
longer available or suitable for Sublessee's requirements. Any riser or risers
to supply Sublessee's requirements, upon written request of Sublessee, will be
installed by Sublessor, at the sole cost and expense of Sublessee, if, in
Sublessor's reasonable judgment the same are necessary and will not cause
permanent damage or injury to the Building or demised Premises or cause or
create a dangerous or hazardous condition or entail excessive or unreasonable
alterations, repairs or expense or interfere with or disturb other tenants or
occupants. In addition to the installation of such riser or risers, Sublessor
will, at the sole cost and expense of Sublessee, install all other equipment
proper and/or necessary in connection therewith, subject to the aforesaid terms
and conditions. Sublessee covenants and agrees that at all times
- 13 -
14
its use of electric current shall never exceed the capacity of existing feeders
to the building or the risers' wiring installations except with respect to any
riser requested by Sublessee and approved by Sublessor in accordance with the
provisions of this Article 15.
ARTICLE 16. EVENTS OF DEFAULT-REMEDIES.
(A) The following events, or any one or more of them, shall be
events of default under this lease:
(i) Sublessee shall fail to pay any minimum rent,
additional rent or other sum payable hereunder within ten (10) days
after written notice that the same is due and payable; provided,
however, that if Sublessee shall fail to pay such amount when due and
payable twice in any lease year, thereafter no written notice from
Sublessor shall be required for the remainder of such lease year to
create an event of default hereunder; or
(ii) Sublessee shall fail to perform or comply with
any of the other terms, covenants, agreements or conditions hereof and
such failure shall continue for more than fifteen (15) days after
written notice thereof from Sublessor; provided, however, that if the
default is of such a nature that it cannot be cured within fifteen (15)
days, Sublessee shall not be considered in default if Sublessee shall,
within such period, have commenced with due diligence and dispatch to
cure such default, and shall thereafter complete with due diligence and
dispatch the curing of such default; or
(iii) Sublessee shall fail to keep the Premises open
for business in accordance with the terms of Article 5 above; or
(iv) Sublessee shall have acted in a manner creating
the right of Sublessor to terminate this lease pursuant to Article
2(c)(iii); or
(v) Except as permitted by the provisions of Article
5, Sublessee shall vacate or desert the Premises or remove, attempt to
remove, or in Sublessor's reasonable judgment manifest an intention to
remove Sublessee's goods or property from the Premises, except in the
ordinary and usual course of business; or
(vi) Sublessee shall make a general assignment for
the benefit of creditors, or shall admit in writing Sublessee's
inability to pay Sublessee's debts as they become due, or shall file a
petition under any of Chapters 7, 11 or 13 of the Bankruptcy Reform Act
of 1978, or shall have entered against Sublessee an order for relief
under any
- 14 -
15
of Chapter 7, 11 or 13 of the Bankruptcy Reform Act of 1978, or shall
be adjudicated insolvent, or shall file a petition seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law
or regulation relating to bankruptcy or insolvency, or shall file an
answer admitting or not contesting the material allegations of a
petition against Sublessee in any such proceeding, or shall seek or
consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of Sublessee or any material part of Sublessee's properties.
(B) In the event of any such event of default (regardless of
the pendency of any proceeding which has or might have the effect of preventing
Sublessee from complying with the terms of this lease), Sublessor at any time
thereafter may exercise any one or more of the following remedies:
(i) Any rent (including charges collectible as
additional rent) overdue for a period of more than ten (10) days shall
bear interest at the "prime rate" (as hereinafter defined) plus three
percent (3%) per annum until paid, and such interest shall be
considered additional rent and shall be payable on demand. For purposes
of this lease, the term "prime rate" shall mean the rate charged by
National City Bank, Cleveland, Ohio, to its best risk commercial
borrowers on unsecured and unmatured obligations maturing within 90
days.
(ii) Sublessor may terminate this lease, without any
right by Sublessee to reinstate Sublessee's rights by payment of rent
due or other performance of the terms and conditions hereof. Upon such
termination Sublessee shall immediately surrender possession of the
Premises to Sublessor, and Sublessor shall immediately become entitled
to receive from Sublessee damages equal to the difference between the
aggregate rentals reserved for the balance of the then current term,
and the fair rental value of the Premises for similar use for that
period, determined as of the date of such termination; provided, that
the amount of such damages shall be discounted at the rate of 5% per
annum for the period from the date of payment by Sublessee to Sublessor
to the date of expiration of the term. Upon actual payment received by
Sublessor of the amount of damages under this provision (B)(ii) plus
Sublessor's reasonable cost of collection, including reasonable
attorneys' fees, Sublessor shall waive all other remedies available to
Sublessor and release Sublessee from any further liability hereunder.
(iii) With or without termination of this lease, as
Sublessor may elect, Sublessor may re-enter and repossess the Premises
or any part thereof, breaking open locked doors
- 15 -
16
if necessary, and lease the Premises, or any part thereof, to any other
person upon such terms as Sublessor shall deem reasonable, for a term
within or beyond the then current term of this lease; provided, that
any such reletting prior to termination shall be for the account of
Sublessee and Sublessee shall remain liable for (a) all minimum rent,
additional rent and other sums which would be payable under this lease
by Sublessee in the absence of such termination or repossession, less
(b) the net proceeds, if any, of any reletting effected for the account
of Sublessee after deducting from such proceeds all of Sublessor's
expenses in connection with such reletting (including, without
limitation, all repossession costs, brokerage commissions, attorneys'
fees and expenses, employee's expenses, reasonable alteration costs,
and expenses of preparation for such reletting). This paragraph shall
not be construed to obligate Sublessor to mitigate damages, if
Sublessor does not elect to do so.
If the Premises are at the time of default occupied by a
subtenant or assignee, Sublessor may, as Sublessee's agent, collect rents due
from such occupant and apply such rents to the rent and other amounts due
hereunder without in any way affecting Sublessee's obligation to Sublessor
hereunder. Such agency, being given for security, is hereby declared to be
irrevocable.
(C) Except as set forth above, no expiration or termination of
this lease pursuant hereto or by operation of law, and no repossession of the
Premises or any part thereof pursuant to paragraph (B) above or otherwise shall
relieve Sublessee of Sublessee's liabilities and obligations hereunder, all of
which shall survive such expiration, termination or repossession, and Sublessor
may, at its option, xxx for and collect rent and other charges due hereunder at
any time and from time to time as and when such charges accrue.
(D) Sublessor may remove all persons and property from the
Premises, and store such property in a public warehouse or elsewhere at the cost
of and for the account of Sublessee, without service of notice or resort to
legal process (all of which Sublessee expressly waives) and without being deemed
guilty of trespass or becoming liable for any loss or damage which may be
occasioned thereby. Sublessor shall have a lien for the payment of all sums
agreed to be paid by Sublessee herein upon all Sublessee's property, which lien
is to be in addition to any lien now or hereafter provided by law.
(E) Sublessee hereby expressly waives any and all rights of
redemption granted by or under any present or future law in the event this lease
is terminated or Sublessee is evicted or dispossessed by reason of violation by
Sublessee of any of the provisions of this lease.
- 16 -
17
(F) In the event of breach or threatened breach by Sublessee
of any provision of this lease, Sublessor shall have the right of injunction as
if other remedies were not provided for herein.
(G) Except as set forth in (B)(ii) above, no right or remedy
herein conferred upon or reserved to Sublessor is intended to be exclusive of
any other right or remedy herein or by law provided, but they shall be
cumulative and each shall be in addition to every other right or remedy given
herein or now or hereafter existing at law or in equity or by statute; and such
rights and remedies may be pursued singly, cumulatively and successively, as
Sublessor may elect.
(H) If Sublessee shall default in the performance of any
covenant required to be performed by it under this lease, Sublessor may perform
the same for and at the expense of Sublessee, after first giving notice to
Sublessee of its intention to do so. If Sublessor at any time is compelled to
pay, or elects to pay, any sum of money, or to do any act which will require the
payment of any sum of money, by reason of the failure of Sublessee to comply
with any provisions hereof, or if Sublessor is compelled to incur any expense,
including reasonable counsel fees, in instituting, prosecuting or defending
against any action or proceeding instituted by reason of any default of
Sublessee hereunder, the amount of such payments or expenses shall be paid by
Sublessee to Sublessor as additional rent the next day following such payment or
the incurring of such expenses upon which a regular monthly rental payment is
due, together with interest thereon at the Prime Rate plus three percent (3%)
per annum.
(I) No waiver by Sublessor of any breach by Sublessee of any
of Sublessee's obligations, agreements or covenants, hereunder shall be a waiver
of any subsequent breach or of any other obligation, agreement or covenant, nor,
shall any forbearance by Sublessor to seek a remedy for any breach by Sublessee
be a waiver by Sublessor of its rights and remedies with respect to such or any
subsequent breach.
(J) If proceedings shall be commenced by Sublessor to recover
possession, either at the end of the term or earlier termination of this lease,
or for nonpayment of rent or any other reason, Sublessee specifically waives the
right to the three days' notice.
ARTICLE 17. QUIET ENJOYMENT. Sublessor, for itself and
Sublessor's successors and assigns, covenants to and with Sublessee, its
successors and assigns, that Sublessee, its successors and assigns, upon
performing the covenants hereunder on its or their part to be performed and
subject to the Lease and Prime Sublease, shall and may peaceably and quietly
have, hold and enjoy the leased premises without let or hindrance from
- 17 -
18
Sublessor or anyone claiming by, through or under Sublessor. Sublessor covenants
to use its best efforts to secure from the Prime Lessee and from the Owner
agreements providing for the quiet enjoyment by the Sublessee of the Premises
for the term of this lease or, in the alternative, notice of and the opportunity
to cure any default under either the First Tier Sublease or the Lease, as the
case may be.
ARTICLE 18. SUBORDINATION. Sublessee agrees to execute and
deliver any document reasonably requested by Sublessor to subordinate or confirm
the subordination of this lease to any existing or future mortgage lien holder;
provided, however, that Sublessee shall not be required to execute and deliver
any such document unless and until the mortgagee agrees that so long as the
Sublessee is not in default in payment of rent or additional rent or in the
performance of any of the terms, covenants or conditions of this lease on the
Sublessee's part to be performed, the Sublessee's occupancy and possession of
the Premises and the Sublessee's rights and privileges under the lease shall not
be diminished or interfered with by the mortgagee during the initial term of
this lease or any renewal term.
ARTICLE 19. CONDEMNATION. In the event that the Premises is
taken or condemned for a public or quasi-public use, this lease shall terminate
if and when possession of the Premises is surrendered to the condemnor, and the
rent reserved hereunder shall xxxxx for the balance of the term. If only part of
the Premises is surrendered to the condemnor, and the remaining portion is,
within Sublessee's reasonable judgment, satisfactory for Sublessee's continuing
use of such space, this lease shall continue but rent shall xxxxx in proportion
to the Floor Area within the Premises taken by the condemnor. In any such event,
Sublessee waives all claims for leasehold damages against Sublessor and assigns
all claims for leasehold damages against the condemnor, if any, to Sublessor;
provided however, that Sublessee shall be entitled to seek an award for loss of
business, lost profits, relocation and/or moving expenses.
ARTICLE 20. LIMITATION ON SUBLESSOR'S LIABILITY. In the event
of default by Sublessor under any of the terms and provisions of this lease,
Sublessee hereby agrees that the liability of Sublessor, if any, shall be
limited solely to the assets of Sublessor or its successors and assigns, and in
no event shall any of the partners of Sublessor, be personally liable for any
breach by Sublessor of its covenants and obligations hereunder.
ARTICLE 21. PARTIES BOUND. This lease shall be binding upon,
and, inure to the benefit of, the parties hereto, their respective successors
and assigns, subject to the provisions of this lease restricting assignment
without consent. Notwithstanding the foregoing, or anything else herein
contained, in the event that Sublessor's interest or estate in the Premises
- 18 -
19
shall terminate by operation of law or foreclosure sale or for any other reason,
or if for any reason Sublessor ceases to be entitled to the rentals hereunder,
then in any such event Sublessor shall be released and relieved from all
liability and responsibility thereafter accruing to Sublessee in connection with
any of the terms, covenants or conditions to be performed by Sublessor under
this lease or by operation of law, and Sublessee shall look only to the
purchaser or other successor or assignee for such performance.
ARTICLE 22. NOTICES. Any notices required or permitted to be
given hereunder shall be in writing and delivered personally or sent by United
States certified mail, return receipt requested addressed as follows: if to
Sublessor, at 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxx, Attention: Xxx
Xxxxxxxxx, and if to Sublessee, at ____________________________. Attention:
______________. Any such notice shall be effective upon receipt or refusal of
delivery.
ARTICLE 23. CONDITIONS OF PREMISES. Sublessee hereby
acknowledges that Sublessee has examined the Premises and that taking possession
of the Premises shall be an acknowledgment by Sublessee that the Premises are in
good and tenantable condition, and satisfactory to Sublessee, at the beginning
of the term hereof. Sublessor is under no duty to make repairs or alterations at
the time of letting or at any time thereafter unless specially set forth
elsewhere herein. No agreement relative to any alterations, additions or
improvements, nor the failure of Sublessor to make such alterations, additions
or improvements if required by any such agreement, shall in any way affect the
payment of the rent at the time specified in this lease, except as set forth in
Article 3 above.
ARTICLE 24. EXCLUSIVITY. The Sublessor hereby covenants to
secure from the Prime Lessee the promise of the Prime Lessee not to lease to or
have any ownership interest in any other restaurant operation in any of the
space it controls in the Playhouse Square Theatres provided, however, that this
covenant shall not preclude the Prime Lessee from leasing or otherwise making
space available to third parties to stage dinners and other events on the
theatre stages or in the theatre lobbies or elsewhere in the complex, which
events are catered by persons other than Sublessee.
ARTICLE 25. NUMBER AND GENDER. For the purposes of this lease,
the singular shall include the plural and the plural shall include the singular,
and the masculine shall include the feminine and the neuter, and the neuter
shall include the masculine and feminine, as the context may require.
ARTICLE 26. CAPTIONS. The captions contained herein are for
the convenience of the parties only. They do not in any
- 19 -
20
way modify, amplify, alter or give full notice of the provisions hereof.
ARTICLE 27. AMENDMENTS. This lease may be modified or amended
only by an instrument in writing signed by the party against which enforcement
of such modification or amendment is sought.
ARTICLE 28. PARTIAL INVALIDITY. If any clause or provision of
this lease, or the application thereof to any person or in any circumstance,
shall to any extent be invalid or unenforceable, the remainder of this lease, or
the application of such clause or provision to persons or in circumstances other
than those as to which it is invalid or unenforceable, shall not be affected
thereby, and each clause and provision of this lease shall be valid and
enforceable to the fullest extent permitted by law.
ARTICLE 29. SUBLESSEE'S ESTOPPEL CERTIFICATE. Sublessee shall
deliver to Sublessor, within ten (10) days after request therefor, a certificate
to such person as Sublessor may designate, certifying that this lease is in full
force and effect and that there are no defaults by Sublessor or set-offs against
rent hereunder, and the date to which rent has been paid; provided, in the event
there are any alleged defaults or set-offs as aforesaid, such certificate shall
specify in precise detail the nature thereof.
ARTICLE 30. HOLDING OVER. If Sublessee shall fail to surrender
possession of the Premises, and to remove all of its property therefrom, upon
termination of this lease, then Sublessor may at its option treat Sublessee as a
tenant at will or as a tenant for one year, as Sublessor may elect, on all the
terms and conditions in effect during the final month of the lease term, except
that the minimum monthly rent during any such holdover period shall be 125% of
the rent payable by Sublessee during the final month of the lease term. For
purposes of this clause, the word "rent" shall include minimum rent, percentage
rent and all additional rent, including, without limitation, any amounts payable
under applicable escalation clauses: if escalation clauses involve annualized
calculations, a pro rata portion of rent escalation charges for the last year of
the lease term shall be considered an item of additional rent payable, during
the last month of the lease term.
ARTICLE 31. ENTIRE AGREEMENT. This lease constitutes the
entire agreement between the parties hereto. Except as set forth herein, there
are no promises, representations or understandings between the parties of any
kind or nature whatsoever.
ARTICLE 32. CHANGES TO BUILDING. Sublessor reserves the right
to make any alterations, modifications, changes or
- 20 -
21
additions to the Building and common areas it deems necessary or appropriate; to
change the identity and type of tenancies and the dimensions thereof, including
the alteration of lease lines as same adjoin common areas; to change the name of
the Building in which the Premises are located; to change the address or
designation of the Building in which the Premises are located; to convert common
areas into leasable areas (including installation of kiosks) or construct
temporary or permanent buildings or improvements in the common areas and change
the location or character of or make alterations in or additions to the common
areas; provided, however, that any of the same that may significantly affect
ingress and egress to and from or view of the Premises shall require the consent
of Sublessee, such consent not to be unreasonably withheld or delayed.
ARTICLE 33. LIENS. Sublessee agrees promptly to pay for any
work done or material furnished by or on behalf of Sublessee in or about the
Premises or any part of the Building and will not permit or suffer any lien to
attach to the Premises or all or any part of the Building and Sublessee shall
have no authority or power, express or implied, to create or cause any lien,
charge or encumbrance of any kind against the Premises or all or any part of the
Building. In the event any lien shall at any time be filed against the Premises
or against any part of the Building by reason of work, labor, services or
materials alleged to have been performed or furnished by, for or to Sublessee or
to anyone holding the Premises through or under Sublessee, Sublessee shall
within 30 days cause the same to be discharged of record or bonded to the
satisfaction of Sublessor. If Sublessee shall fail to cause such lien forthwith
to be so discharged or bonded after being notified of the filing thereof, then,
in addition to any other right or remedy of Sublessor, Sublessor may, upon ten
(10) days notice to Sublessee, discharge the same by paying the amount claimed
to be due, and the amount so paid by Sublessor and all costs and expenses,
including reasonable attorneys' fees incurred by Sublessor in procuring the
discharge of such lien, shall be due and payable by Sublessee to Sublessor as
additional rent on the first day of the next following month.
ARTICLE 34. OPTIONS TO EXTEND LEASE. Provided that Sublessee
is not then in default of the terms and conditions of this Lease, Sublessee
shall have the option to extend this Lease for two additional periods of five
(5) years each, the first period commencing on the first day of the month
following the month the initial term expires and terminating sixty (60) calendar
months thereafter, and the second period commencing on the first day of the
month following the month that the first renewal period expires and terminating
sixty (60) calendar months thereafter, upon all the same terms and conditions
contained herein or then in effect. In the event Sublessee desires to exercise
this option, Sublessee shall notify Sublessor, in writing, six (6) calendar
months before the existing term expires.
- 21 -
22
ARTICLE 35. OPERATION AND MAINTENANCE OF COMMON AREA.
Sublessor shall cause the common areas on the concourse level of the Building to
be kept in good, safe condition, illuminated, sightly in appearance and in good
order and repair and shall remove all rubbish, litter and, other debris
therefrom in a reasonable manner.
ARTICLE 36. CONSENT OF MORTGAGEES. Sublessor hereby agrees to
use reasonable efforts to induce any existing mortgagees holding mortgages
encumbering upon the Premises to enter into an agreement with the Sublessee, by
instrument in recordable form, to the effect that, in the event of default under
such mortgage or of foreclosure or other enforcement thereof, such mortgagee and
its successors and assigns and any purchasers at foreclosure sale will be bound
as Sublessor by all the terms of this lease, and will recognize and accept
Sublessee its successors, assignees or sublessees hereunder as the "Sublessee"
under this lease provided that Sublessee shall not be in default under the terms
and provisions of this lease beyond any time given Sublessee in this lease or by
law or otherwise to cure the default in question.
ARTICLE 37. BROKERS. Sublessor and Sublessee each represent
and warrant to the other that such party has had no dealings with any real
estate agent so as to entitle such agent to any commission in connection with
this lease other than the firm of Xxxxx and Xxxxx which was engaged by the Prime
Lessee and which firm will be entitled to a fee of $50,000 upon the successful
conclusion of this transaction. Such fee shall be considered as part of the
total development cost of the Premises. If for any reason any other commission
shall become due, the party dealing with such agent shall pay any such
commission and agrees to indemnify and save the other party harmless from any
and all claims for any such commissions and from any attorney fees and
litigation or other expenses relating to any such claim.
ARTICLE 38. MEMORANDUM OF LEASE - RECORDING.
Sublessor and Sublessee agree that in the event either party
hereto shall desire to record this lease, the parties hereto shall execute, a
memorandum or short form of this lease which memorandum or short form, and not
this lease, shall then be filed for record.
ARTICLE 39. SIGNS. Sublessor acknowledges that Sublessee has
presented a sign plan to Sublessor prior to the date of the execution of this
lease and that Sublessor has approved such sign plan with certain modifications
required by Sublessor. Any use of signs other than as set forth in the sign plan
so presented to and approved by Sublessor shall require the prior written
approval of the Sublessor. The cost of any sign permit or compliance with any
municipal sign ordinance and the
- 22 -
23
cost of obtaining any sign approval from any governmental unit or agency shall
be the sole responsibility of the Sublessee.
ARTICLE 40. LOCKS. Sublessee may change the locks on the
Premises from time to time so long as Sublessee shall provide Sublessor with a
key to any such lock.
IN WITNESS WHEREOF, the parties hereto have caused this
Sublease to be executed by their duly authorized representatives as of the day,
month and year first hereinabove written.
As to Sublessor
Signed and acknowledged XXXX'X BUILDING, LTD.
in the presence of:
/s/ Xxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------ -----------------------------
/s/ Xxxxxxxx X. Xxxxx Title Vice President
------------------------------ -------------------------
As to Sublessee
Signed and acknowledged CIAO PLAYHOUSE, INC.
in the presence of
/s/ Xxxxxxx Xxxxxxx By /s/ Xxxx X. Xxxxxxxxxxx
------------------------------ -----------------------------
/s/ Xxxxxxxxx X. Xxxxxx Title President
------------------------------ -------------------------
- 23 -
24
STATE OF OHIO )
) SS.
COUNTY OF CUYAHOGA )
The foregoing instrument was acknowledged before me this 23rd
day of October, 1997, by Xxxxxx Xxxxxxxxx as Vice President of Xxxx'x Building,
Ltd., a limited partnership.
/s/ Xxxxxxxx X. Xxxx
---------------------------------
Notary Public
STATE OF OHIO )
) SS.
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me this 13th
day of October, 1997, by Xxxx Xxxxxxxxxxx as President of CIAO Playhouse, Inc.,
an Ohio corporation.
/s/ Xxxxxx X. Xxxxx
---------------------------------
Notary Public
- 24 -
25
APPENDIX I
MINIMUM RENT SCHEDULE
Lease Year Annual Minimum Rent Monthly Payment
---------- ------------------- ---------------
1 $174.000 14.500
2 260.443 21.704
3-10 275.064 22.922
- 25 -
26
[To be added to Exhibits C, D and E when the same are completed.]
Sublessor and Sublessee hereby acknowledge that their costs, together with the
costs incurred or to be incurred by the Prime Lessee, to perform the work
described in Exhibits C, D and E shall, in the aggregate, amount to $3,200,000.
To the extent that upon completion of all improvements and the equipping of the
restaurant in the Premises, the total costs exceed $3,200,000, 50% of such
excess shall be paid to Sublessor by Sublessee as its allocable share of such
excess expenditures.
- 26 -
27
EXHIBIT G
---------
Net income shall mean, for purposes of this Sublease, all
revenue derived by the Sublessee from the operation of the restaurant and
banquet facility conducted from the Premises from whatever source less all
expenses incurred in the operation thereof including, without limitation, all
rental payments (other than Percentage Rent pursuant to Article 2(C) of the
Lease), labor costs, utility expense, cost of food and beverage inventory,
taxes, marketing and advertising expense, management fees (not to exceed 5% of
gross revenue provided, however, that up to 50% of such management shall be
deferred to a subsequent year if, in any given year, such deferral is necessary
to enable the Sublessee to pay all or a portion of the Minimum Rent set forth in
Article 2(A) of this lease), insurance costs, professional fees, annual repair,
maintenance and replacement costs, working capital reserves (in an amount agreed
upon by the Sublessor and the Sublessee) and reasonable reserves set aside on an
annual basis in an interest bearing, segregated account under the joint control
of Sublessor and the Sublessee for future capital repairs and replacements,
which account can be invaded only with the approval of the Sublessor, such
approval not to be unreasonably withheld.
- 27 -
