Exhibit 10.44
L E A S E
LANDLORD: JUBILEE LIMITED PARTNERSHIP
0000 XXXXXX XXXXXX
XXXXXXXX, XXXX 00000-0000
TENANT: SHONAC CORPORATION DBA
DSW SHOE WAREHOUSE
0000 XXXX XXXXX XXXXXX
XXXXXXXX, XXXX 00000
PREMISES: Approximately 25,600 square feet at
Oakland Square Shopping Center
Troy, Michigan
TABLE OF CONTENTS
Page
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SECTION 1. PREMISES 1
SECTION 2. TERM 1
SECTION 3. COMMENCEMENT DATE 1
SECTION 4. RENEWAL OPTIONS 3
SECTION 5. MINIMUM RENT 3
SECTION 6. PERCENTAGE RENT 5
SECTION 7. SECURITY DEPOSIT - DELETED BY INTENTION 7
SECTION 8. RIGHT TO REMODEL 7
SECTION 9. UTILITIES 8
SECTION 10. GLASS 9
SECTION 11. PERSONAL PROPERTY 9
SECTION 12. RIGHT TO MORTGAGE 9
SECTION 13. SUBLEASE OR ASSIGNMENT 10
SECTION 14. COMMON AREAS 11
SECTION 15. OPERATION OF COMMON AREAS 11
SECTION 16. COMMON AREA MAINTENANCE, TENANT'S SHARE 12
SECTION 17. EMINENT DOMAIN 14
SECTION 18. TENANT'S TAXES 15
SECTION 19. RISK OF GOODS 15
SECTION 20. USE AND OCCUPANCY 15
SECTION 21. NUISANCES 18
SECTION 22. WASTE AND REFUSE REMOVAL 18
SECTION 23. DESTRUCTION OF PREMISES 18
SECTION 24. LANDLORD REPAIRS 19
SECTION 25. TENANT'S REPAIRS 20
SECTION 26. COVENANT OF TITLE AND PEACEFUL POSSESSION 22
SECTION 27. TENANT'S AND LANDLORD'S INSURANCE; INDEMNITY 22
SECTION 28. REAL ESTATE TAXES 26
SECTION 29. TENANT'S INSURANCE CONTRIBUTION 28
SECTION 30. FIXTURES 28
SECTION 31. SURRENDER 28
SECTION 32. HOLDING OVER 29
SECTION 33. NOTICE 29
SECTION 34. DEFAULT 29
SECTION 35. WAIVER OF SUBROGATION 33
SECTION 36. LIABILITY OF LANDLORD; EXCULPATION 33
SECTION 37. RIGHTS CUMULATIVE 34
SECTION 38. MITIGATION OF DAMAGES 34
SECTION 39. SIGNS 35
SECTION 40. ENTIRE AGREEMENT 35
SECTION 41. LANDLORD'S LIEN - DELETED BY INTENTION 35
SECTION 42. BINDING UPON SUCCESSORS 35
SECTION 43. HAZARDOUS SUBSTANCES 35
SECTION 44. TRANSFER OF INTEREST 37
SECTION 45. ACCESS TO PREMISES 37
SECTION 46. HEADINGS 37
SECTION 47. NON-WAIVER 37
SECTION 48. SHORT FORM LEASE 38
SECTION 49. ESTOPPEL CERTIFICATE 38
SECTION 50. TENANT'S REIMBURSEMENT 38
SECTION 51. TENANT'S TERMINATION RIGHT 39
SECTION 52. NO BROKER 39
SECTION 53. UNAVOIDABLE DELAYS 40
SECTION 54. TIMELY EXECUTION OF LEASE: 40
SECTION 55. ACCORD AND SATISFACTION 40
SECTION 56. WAIVER OF JURY TRIAL 40
SECTION 57. LEASEHOLD FINANCING 41
LIST OF EXHIBITS:
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EXHIBIT "A-1" SITE PLAN
EXHIBIT "A-2" LEGAL DESCRIPTION
EXHIBIT "B" LANDLORD'S WORK
EXHIBIT "C" TENANT'S WORK
EXHIBIT "D" SUBORDINATION, NON DISTURBANCE AND ATTORNMENT AGREEMENT
EXHIBIT "E" EXCLUSIVES
EXHIBIT "F" TENANTS WHO CAN SELL SHOES
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EXHIBIT "G-1" TENANT SIGNAGE
EXHIBIT "G-2" TENANT IMPROVEMENTS
EXHIBIT "H" LANDLORD'S AGREEMENT
EXHIBIT "I" LANDLORD'S WAIVER
EXHIBIT "J" LENDER RECOGNITION AND NON-DISTURBANCE AGREEMENT
EXHIBIT "K" GROUND LESSOR RECOGNITION AND NON-DISTURBANCE AGREEMENT
EXHIBIT "L-1" GROSS SALES DEFINITION
EXHIBIT "L-2" GROSS SALES REDUCTION
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L E A S E
THIS AGREEMENT OF LEASE, made this 30th day of August, 2002, by and
between Jubilee Limited Partnership, an Ohio limited partnership (hereinafter
referred to as "Landlord"), with offices at 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000-0000 and Shonac Corporation, an Ohio corporation, dba DSW Shoe Warehouse
with offices at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (hereinafter
referred to as "Tenant").
W I T N E S S E T H:
SECTION 1. PREMISES
(a) Landlord, in consideration of the rents to be paid and
covenants and agreements to be performed by Tenant, does hereby lease unto
Tenant the premises (hereinafter referred to as the "premises" or "demised
premises") in the Shopping Center (hereinafter referred to as the "Shopping
Center"), known as Oakland Square Shopping Center in the City of Xxxx, and State
of Michigan, containing or to contain approximately 50,000 square feet of
leasable space on 5 acres. The location, size, and area of the demised premises
and of the Shopping Center shall be substantially as shown on Exhibit "A-1"
attached hereto and made a part hereof. A legal description of the Shopping
Center is shown on Exhibit "A-2" attached hereto and made a part hereof.
Landlord shall not change the configuration of the Shopping Center so as to
materially adversely affect access to, visibility of or parking for the premises
without the prior written consent of Tenant.
(b) The demised premises shall have a ground floor area of
approximately 25,600 square feet with approximate dimensions of 137' x 187'.
SECTION 2. TERM
The term of this Lease shall commence on the commencement date (as
hereinafter defined) and shall continue through February 28, 2013.
SECTION 3. COMMENCEMENT DATE
(a) As herein used, the phrase "commencement date" shall mean the
earlier of: (i) the day Tenant opens for business in the demised premises, or
(ii) ninety (90) days after Landlord has delivered to Tenant possession of the
demised premises as same are to be substantially completed by Landlord and ready
for occupancy, as in (b) below. Landlord agrees to deliver the demised premises
to Tenant with Landlord's work completed between September 15, 2002 and November
15, 2002 (the "Delivery Period"). If Landlord does not deliver the demised
premises to Tenant as required herein by November 15, 2002, Tenant may defer
delivery until January 2, 2003. If Landlord does not deliver the demised
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premises to Tenant thereafter on or before February 28, 2003, Tenant may
terminate this Lease or defer delivery until May 1, 2003. In the event that the
demised premises and Landlord's Work are not substantially completed and
delivered to Tenant on or before the Final Delivery Date, the minimum rent due
hereunder shall be adjusted so that, after the Rent Commencement Date, the
Tenant shall receive a credit against minimum rent thereafter due Landlord equal
to one (1) day of minimum rent for each day after the Final Delivery Date until
delivery of the demised premises is made to Tenant consistent with the terms of
this Lease, including substantial completion of the Landlord's Work. Tenant
shall not be obligated to accept possession of the demised premises prior to the
later of (a) substantial completion of Landlord's Work, (b) the first day of the
Delivery Period and (c) the Final Delivery Date. Time is of the essence
regarding all dates set forth in this Section 3(a). Landlord shall obtain a
certificate of occupancy for the demised premises as part of Landlord's Work.
(b) Possession of the demised premises shall not be deemed to have
been given to Tenant unless the demised premises are ready for the installation
of Tenant's fixtures and finishing work by Tenant, and are free of any violation
of laws, ordinances, regulations and building restrictions relating to the
possession or use of or construction upon the demised premises, and until
Landlord has substantially completed Landlord's Work as set forth on Exhibit
"B", attached hereto and made a part hereof. Landlord shall obtain a certificate
of occupancy for the demised premises as part of Landlord's Work.
(c) Prior to the date on which possession is delivered to Tenant
as aforesaid, Tenant shall have the right to enter the demised premises at its
own risk rent-free for the purpose of preparing for its occupancy, installing
fixtures and equipment, and receiving merchandise and other property, provided
that it does not unreasonably interfere with Landlord's construction activities.
All work other than that to be performed by Landlord is to be done by Tenant
within ninety (90) days after the date possession of the demised premises has
been delivered to Tenant, at Tenant's expense in accordance with the provisions
of this Lease and as set forth in the schedule entitled Description of Tenant's
Work and attached hereto as Exhibit "C" and made a part hereof. All Tenant's
Work shall be performed lien free by Tenant, in a good and workmanlike manner
(employing materials of good quality) in compliance with all governmental
requirements. In the event a mechanic's lien is filed against the demised
premises or the Shopping Center on account of Tenant's Work, Tenant shall
discharge or bond off same within ten (10) days from the filing thereof. If
Tenant fails to discharge said lien, Landlord may bond off or pay same without
inquiring into the validity or merits of such lien, and all sums so advanced
shall be paid on demand by Tenant as additional rent.
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(d) From the date upon which the demised premises are delivered to
Tenant for its work until the commencement date of the lease term, Tenant shall
observe and perform all of its obligations under this Lease (except Tenant's
obligation to operate and pay minimum rent, percentage rent and "Tenant's
Proportionate Share" (defined in Section 16(c) below) of "Maintenance Costs"
(defined and provided for in Section 16(b) hereof "real estate taxes" (defined
and provided for in Section 28(b) hereof) and insurance (provided for in Section
28 hereof). In the event Tenant fails to open for business within one hundred
twenty (120) days after the date possession of the demised premises has been
delivered to Tenant, Landlord, in addition to any and all other available
remedies, may require Tenant to pay to Landlord, in addition to all other rent
and charges herein, as liquidated damages and not as a penalty, an amount equal
to one-three hundred sixty five thousandths (1/365) of the annual minimum rent
for each day such failure to open continues.
SECTION 4. RENEWAL OPTIONS
(a) Provided Tenant has fully complied with all of the terms,
provisions, and conditions on its part to be performed under this Lease and is
not in default under this Lease, Tenant may, by giving written notice to the
Landlord at least seven (7) months on or before the expiration of the initial
term of this Lease, extend such term for a period of five (5) years upon the
same covenants and agreements as are herein set forth, except that the minimum
rent during the first renewal term shall be increased to Fifty-three Thousand
Five Hundred Twenty-five and 33/100 Dollars ($53,525.33) each month.
(b) Provided Tenant has fully complied with all of the terms,
provisions and conditions on its part to be performed under this Lease, is not
in default under this Lease and has exercised its first option to renew
hereunder, Tenant may, by giving written notice to the Landlord at least seven
(7) months on or before the expiration of the first extended term of this Lease,
extend such term for an additional period of five (5) years upon the same
covenants and agreements as the first extended term except that the minimum rent
(as increased pursuant to Section 4(a) above) during this second renewal term
shall be further increased to Fifty-nine Thousand Nine Hundred Forty-eight and
37/100 Dollars ($59,948.37) each month.
SECTION 5. MINIMUM RENT
(a) Tenant agrees to pay to Landlord, as minimum rent for the
demised premises, equal consecutive monthly installments of Forty Two Thousand
Six Hundred Sixty Six and 67/100 Dollars ($42,666.67), commencing on the
commencement date, and continuing on the first day of each calendar month during
years one (1) through five (5) of the initial term of this Lease, and monthly
installments of
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Forty Seven Thousand Seven Hundred Eighty Six and 67/100 Dollars ($47,786.67)
each calendar month during years six (6) through the remainder of the initial
term of this Lease. All such rental shall be payable to Landlord in advance,
without prior written notice or demand and without any right of deduction,
abatement, counterclaim or offset whatsoever (unless specifically permitted in
this Lease). In no event shall Tenant have the right to offset more than
twenty-five percent (25%) of minimum rent in any calendar month, and Tenant
shall have no right to offset against any additional rent other than any
percentage rent payable hereunder. As used in this Lease, the terms "minimum
rent" and "minimum rental" mean the minimum rental set forth in this Section
5(a) as adjusted pursuant to Section 4 hereof. As used in this Lease, the terms
"rent and "rental" mean minimum rental, percentage rental, additional rental and
all other sums due and owing from Tenant to Landlord under this Lease.
(b) If the Lease term shall commence on a day other than the first
day of a calendar month or shall end on a day other than the last day of a
calendar month, the minimum rental for such first or last fractional month shall
be such proportion of the monthly minimum rental as the number of days in such
fractional month bears to the total number of days in such calendar month.
(c) Until further notice to Tenant, all rental payable under this
Lease shall be payable to Landlord and mailed to Landlord at 0000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000-0000.
(d) In the event any sums required under this Lease to be paid are
not received when due, then all such amounts shall bear interest from the due
date thereof until the date paid at the rate of interest equal to two percent
(2%) over the prime rate in effect from time to time as established by National
City Bank, Columbus, Ohio (the "Interest Rate"), and shall be due and payable by
Tenant without notice or demand, Tenant shall pay the foregoing interest thereon
in addition to all default remedies of Landlord pursuant to Section 34 below.
(e) Notwithstanding anything herein contained to the contrary,
Tenant shall initially pay to Landlord as additional rental, simultaneously with
the payment of minimum renal called for under Section 5(a) above, Three Dollars
($3.00) per square foot, payable in equal monthly installments of Six Thousand
Four Hundred and 00/100 Dollars ($6,400.00), as the estimated monthly amount of
Tenant's proportional Share of Maintenance Costs (provided for in Section 16
hereof), real estate taxes (provided for in Section 28 hereof) and insurance
(provided for in Section 29 hereof). Tenant's proportionate share of Maintenance
Costs, real estate taxes and insurance shall not exceed Three Dollars ($3.00)
per square foot in the first lease year.
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SECTION 6. PERCENTAGE RENT
(a) Tenant acknowledges that pursuant to Article 35, Section 2 of
the Master Lease, Landlord is obligated to pay to Master Landlord percentage
rent for the entire "demised premises" described in the Master Lease (the
"Jubilee Premises"). For purposes hereof, the "Master Lease" is that certain
Lease dated November 4, 1986, by and between Oakland Square Limited Partnership
("Master Landlord") and Service Merchandise Company, Inc. Landlord is the
successor-in-interest to Service Merchandise Company, Inc.'s interest in and to
said Master Lease. The Jubilee Premises contain approximately 50,000 square
feet, consisting of (i) the premises containing approximately 25,600 square feet
(as defined in Section 1(a) hereof) and (ii) that certain space located adjacent
to the premises containing approximately 24,400 square feet currently occupied
by TJ Maxx (the "TJ Maxx Premises") pursuant to that certain Sublease entered
into by and between Landlord and TJX Companies, Inc. ("TJ Maxx") dated June 2,
2000 (the "TJ Maxx Sublease"). In the event that percentage rent is not payable
under the Master Lease, this Section 6 shall be inapplicable and there shall be
no obligation on the part of Tenant to pay percentage rent under this Lease. To
the extent that Landlord pays percentage rent under the Master Lease, Tenant
shall comply with the provisions set forth in this Section 6.
(b) On or before the first day of March after each calendar year
hereunder and within thirty (30) days after the expiration or termination of the
Lease, Tenant shall deliver to Landlord a statement (the "Annual Sales
Statement"), certified to be true and correct by an authorized officer of
Tenant, showing the Gross Sales (as defined in the Master Lease and set forth in
Exhibit "L-1" attached hereto and made a part hereof) from the premises during
the preceding full or partial calendar year (in the event that this Lease was
not in effect during the entire preceding calendar year). Tenant shall pay to
Landlord percentage rent ("Percentage Rent") for said full or partial calendar,
which shall be payable hereunder on or before the due date of each such Annual
Sales Statement. Percentage Rent shall be calculated by multiplying (a) the
amount Tenant's Gross Sales exceed Tenant's Breakpoint (as hereinafter defined)
by (b) two percent (2%). Tenant's Breakpoint shall be calculated by multiplying
(i) the percentage of the Jubilee Premises occupied by Tenant (currently
fifty-one and two tenths percent (51.2%)) by (ii) the "breakpoint" as defined in
the Master Lease. The parties acknowledge that the "breakpoint" under the Master
Lease is Fifteen Million Dollars ($15,000,000.00) for a full calendar year. In
the event the Annual Sales Statement covers a period of less than twelve (12)
full months, then pursuant to the Master Lease, the "breakpoint" shall be
proportionately decreased pursuant to the sum of the applicable percentages for
each such month included during the applicable period in the amounts set forth
in
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Exhibit "A" of the Master Lease, which exhibit is incorporated herein and made a
part hereof as Exhibit "L-2".
Notwithstanding anything to the contrary set forth in this Section 6,
Tenant shall have no obligation to pay Percentage Rent in the event the sum of
(x) Tenant's Gross Sales and (y) the Gross Sales of the occupant of the TJ Maxx
Premises, do not exceed the "breakpoint" set forth in the Master Lease. Further
and notwithstanding anything to the contrary set forth herein, to the extent
Landlord receives a reduction in the amount of percentage rent due and payable
under the Master Lease pursuant to Article 35 of the Master Lease attributable
to capital expenditures made by Landlord, or for any other reason, Tenant shall
receive a credit applicable to Tenant's Percentage Rent payment equal to the
product of (A) Tenant's percentage of the Jubilee Premises, multiplied by (B)
the amount of said reduction.
The following is a sample calculation of Percentage Rent. In the event
the percentage of the Jubilee Premises occupied by Tenant is fifty-one and two
tenths percent (51.2%), Tenant's Breakpoint for a full calendar year would be
Seven Million Six Hundred Eighty Thousand Dollars ($7,680,000.00) (based on
fifty-one and two tenths percent (51.2%) x Fifteen Million Dollars
($15,000,000.00)). If Tenant's Gross Sales during the applicable calendar year
are Ten Million Dollars ($10,000,000.00), Tenant's Percentage Rent would be
Forty-six Thousand Four Hundred Dollars ($46,400.00) [calculated by multiplying
two percent (2%) by Two Million Three Hundred Twenty Thousand Dollars
($2,320,000), the difference between Tenant's Gross Sales (Ten Million Dollars
($10,000,000.00)) and Tenant's Breakpoint ((Seven Million Six Hundred Eighty
Thousand Dollars ($7,680,000.00)). However, no Percentage Rent would be due if
the sum of Gross Sales from the Premises and the remainder of the Jubilee
Premises does not exceed Fifteen Million Dollars ($15,000,000.00). Further, in
the event percentage rent under the Master Lease is payable, but Landlord
receives a reduction thereof in the amount of Ten Thousand Dollars ($10,000.00)
pursuant to Article 35 of the Master Lease pertaining to capital expenditures,
Tenant's Percentage Rent would be Forty-one Thousand Two Hundred Eighty Dollars
($41,280.00) [calculated by subtracting from Forty-six Thousand Four Hundred
Dollars ($46,400.00) the amount of Five Thousand One Hundred Twenty Dollars
($5,120.00)(based on Ten Thousand Dollars ($10,000.00) multiplied by fifty-one
and two tenths percent (51.2%)).
(c) Maintenance of Accounts and Records. As required by the terms
of the Master Lease, Tenant shall keep and maintain the records required
hereunder at its principal office where now or hereafter located. Such accounts
shall be preserved by, and remain at, such office of Tenant for a period of two
(2) years after the expiration of each lease year during the term of this Lease.
If Landlord is not
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satisfied with the statements rendered to it by Tenant with respect to any
calendar year, or wishes to challenge the reasonableness of any items therein,
it shall give Tenant notice of its dissatisfaction, and Landlord shall have the
right, for purposes of verifying the Gross Sales reported by Tenant, not more
than one (1) time per year, upon not less than five (5) business days notice to
Tenant, to audit during normal business hours in Tenant's corporate offices,
Tenant's books and records relating to Tenant's Gross Sales for a period of two
(2) years after the end of each lease year. If such audit shows that the
statements of gross sales rendered by Tenant are understated by more than three
percent (3%), Tenant shall pay to Landlord the reasonable costs of such
investigation and audit. Is such an audit is commenced within such one year
period, such period shall be extended until such audit us completed and any
disputes arising therefrom have been determined. If Landlord does not elect to
examine said accounts within said two (2) year period then Landlord shall be
deemed to have acquiesced in the statements issued by Tenant during the calendar
year in question, and Landlord shall be deemed to have waived any right to
inspect said account with respect to such calendar year thereafter. Landlord
shall hold in confidence and not divulge to any other person or entity the sales
figures or other information obtained from Tenant's records, except to the
extent necessary due to a sale or refinancing of the Shopping Center.
(d) For purposes hereof, a lease year shall consist of a
consecutive twelve (12) calendar month period commencing on the commencement of
the term of this Lease.
SECTION 7. SECURITY DEPOSIT - DELETED BY INTENTION
SECTION 8. RIGHT TO REMODEL
(a) Tenant may, at Tenant's expense, make repairs and alterations
to the interior non-structural portions of the demised premises and remodel the
interior of the demised premises, excepting structural and exterior changes, in
such manner and to such extent as may from time to time be deemed necessary by
Tenant for adapting to the demised premises to the requirements and uses of
Tenant and for the installation of its fixtures, appliances and equipment. Any
structural or exterior alteration may only be made by Tenant with the prior
written approval of Landlord, which approval may be granted or withheld in
Landlord's sole discretion. All plans for any structural alterations shall be
submitted to Landlord for endorsement of its approval prior to commencement of
work. Upon Landlord's request, Tenant shall be obligated, if it remodels and/or
alters the demised premises, to restore the demised premises upon vacating the
same. Tenant will indemnify and save harmless the Landlord from and against all
mechanics liens or claims by reason of repairs, alterations or improvements
which may be
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made by Tenant to the demised premises. Inasmuch as any such alterations,
additions or other work in or to the demised premises may constitute or create a
hazard, inconvenience or annoyance to the public and other tenants in the
Shopping Center, Tenant shall, if so directed in writing by Landlord, erect
barricades, temporarily close the demised premises, or affected portion thereof,
to the public or take whatever measures are necessary to protect the building
containing the demised premises, the public and the other tenants of the
Shopping Center for the duration of such alterations, additions or other work.
If Landlord determines, in its sole judgment, that Tenant has failed to take any
of such necessary protective measures, and Tenant fails to cure same within ten
(10) days after notice thereof, Landlord may do so and Tenant shall reimburse
Landlord for the cost thereof within ten (10) days after Landlord bills Tenant
therefor.
(b) All such work, including Tenant's Work pursuant to Exhibit "C"
shall be performed lien free by Tenant. In the event a mechanic's lien is filed
against the premises or the Shopping Center, Tenant shall discharge or bond off
same within ten (10) days from the filing thereof. If Tenant fails to discharge
said lien, Landlord may bond off or pay same without inquiring into the validity
or merits of such lien, and all sums so advanced shall be paid on demand by
Tenant as additional rent.
SECTION 9. UTILITIES
(a) The Tenant agrees to be responsible and pay for all public
utility services rendered or furnished to the demised premises during the term
hereof, including, but not limited to, heat, water, gas, electric, steam,
telephone service and sewer services, together with all taxes, levies or other
charges on such utility services when the same become due and payable. Landlord
will use its best efforts to separately meter utilities. Landlord shall provide,
or cause to be provided, all such utility services to the premises during the
term of this Lease. Tenant shall be responsible for all utility services and
costs inside the premises. Should any utility service not be separately metered,
then Tenant shall be responsible for its pro-rata share thereof as determined
from time to time and billed by Landlord. Landlord shall not be liable for the
quality or quantity of or interference involving such utilities unless due
directly to Landlord's negligence.
(b) During the term hereof, whether the demised premises are
occupied or unoccupied, Tenant agrees to maintain heat sufficient to heat the
demised premises so as to avert any damage to the demised premises on account of
cold weather.
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SECTION 10. GLASS
The Tenant shall maintain the glass part of the demised premises,
promptly replacing any breakage and fully saving the Landlord harmless from any
loss, cost or damage resulting from such breakage or the replacement thereof.
SECTION 11. PERSONAL PROPERTY
The Tenant further agrees that all personal property of every kind or
description that may at any time be in or on the demised premises shall be at
the Tenant's sole risk, or at the risk of those claiming under the Tenant, and
that the Landlord shall not be liable for any damage to said property or loss
suffered by the business or occupation of the Tenant caused in any manner
whatsoever.
SECTION 12. RIGHT TO MORTGAGE
(a) Landlord reserves the right to subject and subordinate this
Lease at all times to the lien of any deed of trust, mortgage or mortgages now
or hereafter placed upon Landlord's interest in the demised premises; provided,
however, that no default by Landlord, under any deed of trust, mortgage or
mortgages, shall affect Tenant's rights under this Lease, so long as Tenant
performs the obligations imposed upon it hereunder and is not in default
hereunder, and Tenant attorns to the holder of such deed of trust or mortgage,
its assignee or the purchaser at any foreclosure sale. Any such subordination
shall be contingent upon Tenant receiving a commercially reasonable
non-disturbance agreement. The parties agree that the Subordination,
Non-Disturbance and Attornment Agreement attached hereto as Exhibit "D" is a
commercially reasonable agreement. Tenant shall execute any instrument presented
to Tenant for the purpose of effecting such subordination. If Tenant, within ten
(10) days after submission of such instrument, fails to execute same, Landlord
is hereby authorized to execute same as attorney-in- fact for Tenant. It is a
condition, however, to the subordination and lien provisions herein provided,
that Landlord shall procure from any such mortgagee an agreement in writing,
which shall be delivered to Tenant or contained in the aforesaid subordination
agreement, providing in substance that so long as Tenant shall faithfully
discharge the obligations on its part to be kept and performed under the terms
of this Lease and is not in default under the terms hereof, its tenancy will not
be disturbed nor this Lease affected by any default under such mortgage.
(b) Wherever notice is required to be given to Landlord pursuant
to the terms of this Lease, Tenant will likewise give such notice to any
mortgagee of Landlord's interest in the demised premises upon notice of such
mortgagee's name and address from Landlord. Furthermore, such mortgagee shall
have the same rights to cure any default on the part of Landlord that Landlord
would have had.
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SECTION 13. SUBLEASE OR ASSIGNMENT
(a) Tenant may assign Tenant's interest in this Lease or sublet
all or any portion of the demised premises for a retail use without the
Landlord's prior written consent, so long as Tenant remains fully and primarily
liable hereunder. Tenant's right to assign or sublet shall be subject to any
then existing exclusives or primary use exclusives for tenants leasing more than
20,000 square feet of space.
Tenant may, without the consent of Landlord, (i) grant licenses and/or
concessions within the demised premises or (ii) assign or sublet all or any
portion of the demised premises to (a) any parent, affiliate or subsidiary
corporation of Tenant; (b) a transferee or successor by merger, consolidation or
acquisition of Tenant or its parent or subsidiary; or (c) a transferee with a
good business reputation who is acquiring all or substantially all of the stores
of the Tenant in the Detroit metropolitan area or the assets of the Tenant, its
parent or subsidiary. Any such assignee or sublessee shall be bound by the terms
of this Lease. Tenant shall deliver to Landlord in the ordinary course of its
business an instrument whereby the assignee or entity succeeding to Tenant's
interest hereunder agrees to be bound by the terms of this Lease.
(b) If Tenant desires to assign its interest under this Lease or
to sublet all or any portion of the demised premises to a non-affiliated third
party, Tenant shall deliver to Landlord written notice (an "Assignment Notice")
that Tenant intends to solicit offers for such an assignment or subletting.
Within sixty (60) days after Landlord's receipt of an Assignment Notice,
Landlord may terminate this Lease (or in the case of a subletting of less than
all of the demised premises [a "Partial Sublet"], Landlord may terminate this
Lease as to the portion of the demised premises proposed to be sublet), by
written notice to Tenant (a "Takeback Notice"). During such sixty (60) day
period (the "Landlord's Recapture Period"), Tenant shall not assign this Lease
to any prospective assignee or sublet the demised premises to any prospective
sublessee. If Landlord exercises its option to terminate this Lease pursuant to
this Section, then this Lease shall end and expire on the date which is sixty
(60) days after Tenant's receipt of the Takeback Notice as fully and completely
as if such early termination date were the original expiration date of the term
of this Lease (except as to a termination regarding a proposed Partial Sublet in
which event this Lease shall terminate only as to such portion of the demised
premises), and all Rent shall be apportioned as of such early termination date.
If Tenant shall not have received a Takeback Notice within the Landlord's
Recapture Period, then Landlord shall be deemed to have waived its recapture
right pursuant to this Section 13, and Tenant shall be entitled, without any
further right of Landlord to recapture the demised premises or any portion
thereof, to assign this Lease or sublet all or
10
any permitted portion of the demised premises during the one (1) year period
(the "Tenant's Transfer Period") following the expiration of Landlord's
Recapture Period. Notwithstanding the foregoing, in the event that Tenant does
not assign its interest in this Lease or sublet all or any permitted portion of
the demised premises during the Tenant's Transfer Period, Tenant shall, prior to
any assigning or subletting, once again be required to send Landlord an
Assignment Notice, and fully comply with the terms of this Section 13 so that
Landlord has the right to recapture the demised premises in accordance with the
provisions of this paragraph. Additionally, Landlord's right to recapture shall
be immediately reinstated if Tenant fails to continuously operate during such
one (1) year period.
(c) Landlord may assign Landlord's interest in this Lease without
the consent of Tenant (a) to any entity to which Landlord transfers its fee
interest in the demised premises provided such entity (i) agrees in writing to
be bound by all the terms of this Lease and (ii) such assignment is pursuant to
a bona fide arm's length transaction not designed to reduce Landlord's liability
or to otherwise exempt Landlord from any provision of this Lease or (b) subject
to Section 12, as security for any indebtedness undertaken by Landlord.
SECTION 14. COMMON AREAS
Common areas means all areas and facilities in the Shopping Center
provided and so designated by Landlord and made available by Landlord in the
exercise of good business judgement for the common use and benefit of tenants of
the Shopping Center and their customers, employees and invitees. Common areas
shall include (to the extent the same are constructed), but not be limited to,
the parking areas, sidewalks, landscaped areas, corridors, stairways, boundary
walls and fences, incinerators, truckways, service roads, and service areas not
reserved for the exclusive use of Tenant or other tenants.
SECTION 15. OPERATION OF COMMON AREAS
(a) Landlord shall, throughout the term hereof, operate and
maintain the common areas including the parking areas for the use and benefit of
the tenants of the Shopping Center and their customers and invitees. Landlord
shall at all times have exclusive control of the common areas and may at any
time and from time to time: (i) promulgate, modify and amend reasonable rules
and regulations for the use of the common areas, which rules and regulations
shall be binding upon the Tenant upon delivery of a copy thereof to the Tenant;
(ii) temporarily close any part of the common areas, including but not limited
to closing the streets, sidewalks, road or other facilities to the extent
necessary to prevent a dedication thereof or the accrual of rights of any person
or of the public therein; (iii) exclude and restrain anyone from the use or
occupancy of the common areas or any part thereof except bona fide
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customers and suppliers of the tenants of the Shopping Center who use said areas
in accordance with the rules and regulations established by Landlord; (iv)
engage others to operate and maintain all or any part of the common areas, on
such terms and conditions as Landlord shall, in its sole judgment, deem
reasonable and proper; and (v) make such changes in the common areas as in its
opinion are in the best interest of the Shopping Center, including but not
limited to changing the location of walkways, service areas, driveways,
entrances, existing automobile parking spaces and other facilities, changing the
direction and flow of traffic and establishing prohibited areas; provided,
however, that no such change shall materially adversely effect access to,
visibility of or parking for the demised premises.
(b) Tenant shall keep all common areas free of obstructions
created or permitted by Tenant. Tenant shall permit the use of the common areas
only for normal parking and ingress and egress by its customers and suppliers to
and from the demised premises. If in Landlord's opinion unauthorized persons are
using any of the common areas by reason of Tenant's occupancy of the demised
premises. Landlord shall have the right at any time to remove any such
unauthorized persons from said areas or to restrain unauthorized persons from
said areas. Landlord, Tenant, and others constructing improvements or making
repairs or alterations in the Shopping Center shall have the right to make
reasonable use of portions of the common areas.
SECTION 16. COMMON AREA MAINTENANCE, TENANT'S SHARE
(a) Tenant shall initially pay to Landlord as additional rental,
simultaneously with the payment of minimum rental called for under Section 5(a),
the estimated monthly amount of Tenant's Proportionate Share of the "Maintenance
Costs" (as defined in Section 16(c) below) for the operation and maintenance of
the common areas as set forth in Section 5(e) One Dollar ($1.00) per square
foot, payable in equal monthly installments of Two Thousand One Hundred Thirty
Three and 33/100 Dollars ($2,133.33) as the estimated monthly amount of Tenant's
Proportionate Share of the "Maintenance Costs" (as defined in Section 16(c)
below) for the operation and maintenance of the common areas.
(b) The Maintenance Costs for the common areas shall be computed
on an accrual basis, under generally accepted accounting principles, and shall
include all costs of operating, maintaining, repairing and replacing the common
areas, including by way of example but not limitation: (i) cost of labor
(including worker's compensation insurance, employee benefits and payroll
taxes); (ii) materials, and supplies used or consumed in the maintenance or
operation of the common area; (iii) the cost of operating and repairing of the
lighting; (iv) cleaning, painting, removing of rubbish or debris, snow and ice,
private security services, and inspecting the common areas; (v) the cost of
repairing and/or replacing
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paving, curbs, walkways, markings, directional or other signs; landscaping, and
drainage and lighting facilities; (vi) rental paid for maintenance of machinery
and equipment; (vii) cost of commercial general liability insurance and property
insurance for property in the common areas which are not part of the building
and/or demised premises; and (viii) a reasonable allowance to Landlord for
Landlord's supervision, which allowance shall not in an accounting year exceed
fifteen percent (15%) of the total of all Maintenance Costs for such accounting
year (all of the foregoing are collectively referred to herein as "Maintenance
Costs").
(c) Landlord shall maintain accurate and detailed records of all
Maintenance Costs for the common areas in accordance with generally accepted
accounting principles. For purposes of this Lease, "Tenant's Proportionate
Share" shall be the product of the applicable cost or expense multiplied by a
fraction, the numerator of which shall be the gross leasable area (expressed in
square feet) of the demised premises and the denominator of which shall be the
gross leasable area (expressed in square feet) of all leasable space in the
Shopping Center.
(d) The actual amount of Tenant's Proportionate Share of all
Maintenance Costs shall be computed by Landlord within one hundred twenty (120)
days after the end of each accounting year (which Landlord may change from time
to time). At this time Landlord shall furnish to Tenant a statement showing in
reasonable detail the actual Maintenance Costs incurred during such accounting
year and Tenant's Proportionate Share thereof (prorated for any partial Lease
year, with appropriate adjustments to reflect any change in the floor area of
the premises or the gross leasable area of a building occurring during such
accounting year). Any excess payments from Tenant shall be applied to the next
installments of the Maintenance Costs hereunder, or refunded by Landlord. Any
underpayments by Tenant shall be paid to Landlord within thirty (30) days after
receipt of such reconciliation statement. Tenant's estimated monthly Maintenance
Cost hereunder may be adjusted by written notice from Landlord. Notwithstanding
anything contained in this Section 16 to the contrary, Landlord and Tenant agree
that the actual amount of Tenant's Proportionate Share of Maintenance Costs
shall not increase by more than five percent (5%) in any lease year over the
previous lease year, and that Tenant's Proportionate Share of Maintenance Costs
for the first lease year shall not exceed One and 25/100 Dollars ($1.25) per
square foot.
(e) If Tenant, for any reason in the exercise of good business
judgment, questions or disputes any statement of Maintenance Costs prepared by
Landlord, then Tenant, at its own expense, may employ such accountants as Tenant
may select to review Landlord's books and records solely with respect to
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Maintenance Costs during the prior two Lease years and to determine the amount
of Maintenance Costs for the period or periods covered by such statements. If
the report of the accountants employed by Tenant shall show any overcharge paid
by Tenant, then Tenant shall receive a credit from Landlord for such difference.
Any underpayment shall be paid by Tenant. In the event that Landlord questions
or disputes the correctness of such report, the accountants employed by Tenant
and the accountants employed by Landlord shall endeavor to reconcile the
question(s) or dispute(s) within thirty (30) days after the notice from Tenant
questioning or disputing the report of Landlord's accountants. In the event that
it is finally determined by the parties that Landlord has overstated Maintenance
Costs for any Lease year by three percent (3%) or more, Landlord shall pay the
reasonable cost of the audit. Furthermore, if Landlord's Maintenance Costs
cannot be verified due to the insufficiency or inadequacy of Landlord's records,
then Landlord shall pay the cost of the audit.
SECTION 17. EMINENT DOMAIN
(a) In the event the entire premises or any part thereof shall be
taken or condemned either permanently or temporarily for any public or
quasi-public use or purpose by any competent authority in appropriation
proceedings or by any right of eminent domain, the entire compensation or award
therefore, including leasehold, reversion and fee, shall belong to the Landlord
and Tenant hereby assigns to Landlord all of Tenant's right, title and interest
in and to such award.
(b) In the event that only a portion of the demised premises, not
exceeding twenty percent (20%) of same, shall be so taken or condemned, and the
portion of the demised premises not taken can be repaired within ninety (90)
days from the date of which possession is taken for the public use so as to be
commercially fit for the operation of Tenant's business, the Landlord at its own
expense shall so repair the portion of the demised premises not taken and there
shall be an equitable abatement of rent for the remainder of the term and/or
extended terms. The entire award paid on account thereof shall be paid to the
Landlord. If the portion of the demised premises not taken cannot be repaired
within ninety (90) days from the date of which possession is taken so as to be
commercially fit for the operation of Tenant's business, then this Lease shall
terminate and become null and void from the time possession of the portion taken
is required for public use, and from that date on the parties hereto shall be
released from all further obligations hereunder except as herein stated and
Tenant shall have no claim for any compensation on account of its leasehold
interest. No other taking, appropriation or condemnation shall cause this Lease
to be terminated. Any such appropriation or condemnation proceedings shall not
14
operate as or be deemed an eviction of Tenant or a breach of Landlord's covenant
of quiet enjoyment and Tenant shall have no claim for any compensation on
account of its leasehold interest.
(c) In the event that more than 20% of the demised premises shall
at any time be taken by public or quasi-public use or condemned under eminent
domain, then at the option of the Landlord or Tenant upon the giving of thirty
(30) days written notice (after such taking or condemnation), this Lease shall
terminate and expire as of the date of such taking and any prepaid rental shall
be prorated as of the effective date of such termination.
SECTION 18. TENANT'S TAXES
Tenant further covenants and agrees to pay promptly when due all taxes
assessed against Tenant's fixtures, furnishings, equipment and stock-in trade
placed in or on the demised premises during the term of this Lease.
SECTION 19. RISK OF GOODS
All personal property, goods, machinery, and merchandise in said
demised premises shall be at Tenant's risk if damaged by water, fire, explosion,
wind or accident of any kind, and Landlord shall have no responsibility therefor
or liability for any of the foregoing and Tenant hereby releases Landlord from
such liability.
SECTION 20. USE AND OCCUPANCY
(a) Tenant agrees to initially open and operate a DSW Shoe
Warehouse in the demised premises, fully staffed and stocked and equivalent to
other DSW Shoe Warehouse stores operated by Tenant in the State of Ohio. The
demised premises during the term of this Lease shall be occupied for the
operating and conducting therein of a retail shoe store or any other lawful
retail purpose upon obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld. Any use other than a retail shoe
store shall be consistent with the then existing character of the Shopping
Center, and shall not violate those exclusives set forth on Exhibit "E" attached
hereto and made a part hereof, which are the exclusives in effect for the
Shopping Center as of the date hereof, for so long as and to the extent said
exclusives are still in full force and effect, as well as exclusives hereafter
granted for tenants leasing more than 20,000 square feet of space elsewhere
within the Shopping Center.
(b) For so long as Tenant is continuously and regularly operating
its business in the demised premises, Landlord will not lease any space within
the Shopping Center or permit any space within the Shopping Center to be used by
any person, persons, partnership or entity who devotes five percent (5%) or more
of its selling area to the sale of footwear, except for TJ Maxx and its
subsidiaries, including
15
HomeGoods, whose use clause under its lease is listed on Exhibit "F", attached
hereto and made a part hereof, for so long as such lease is in full force and
effect. Any portion of the Shopping Center which is sold by Landlord during the
term shall contain a deed restriction incorporating the foregoing exclusive.
(c) Tenant shall at all times conduct its operations on the
demised premises in a lawful manner and shall, at Tenant's expense, comply with
all laws, rules, orders, ordinances, directions, regulations, and requirements
of all governmental authorities, now in force or which may hereafter be in
force, which shall impose any duty upon Landlord or Tenant with respect to the
business of Tenant and the use, occupancy or alteration of the demised premises.
Tenant shall comply with all requirements of the Americans with Disabilities
Act, and shall be solely responsible for all alterations within the demised
premises in connection therewith. Tenant covenants and agrees that the demised
premises shall not be abandoned or left vacant and that only minor portions of
the demised premises shall be used for office or storage space in connection
with Tenant's business conducted in the demised premises.
Without being in default of this Lease, Tenant shall have the right to
cease operating (go dark) at any time and for whatever reason after the first
(1st) lease year. Notwithstanding the foregoing, Tenant's right to vacate (go
dark), shall not release or excuse the Tenant from any obligations or
liabilities, including the payment of minimum rent and additional rent and other
charges, under this Lease without the express written consent of Landlord. In
the event Tenant fails to (i) open and operate within ninety (90) days after
delivery of the demised premises or (ii) operate for one hundred twenty (120) or
more consecutive days, Landlord shall have the right, effective upon thirty (30)
days prior written notice to Tenant, to terminate the Lease as Landlord's sole
remedy, provided that if Tenant recommences operating fully stocked in
substantially all of the premises within such thirty (30) days, Landlord's
termination shall be null and void. In the event Tenant fails to open and
operate as provided above or shall cease operating as provided above, Landlord's
sole remedy on account thereof shall be limited to the right to elect to
recapture the premises and terminate the Lease, whereupon there shall be no
further liability of the parties hereunder. Such termination shall be effective
upon written notice to Tenant any time prior to Tenant reopening for business in
the demised premises. Provided, however, in the event Landlord has not so
elected to recapture, Tenant shall have right to notify Landlord of Tenant's
intention to reopen for business in the demised premises within sixty (60) days,
followed by Tenant's actually reopening for business fully stocked in
substantially all of the demised premises within such sixty (60) day period,
which notice and actual reopening shall toll Landlord's right to recapture.
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(d) Landlord and Tenant agree that no space in the Shopping
Center, including the demised premises, shall be used for any immoral uses or
undesirable uses. For purposes hereof, undesirable uses are hereby defined as a
bowling alley, deep discount retailer, theater showing either film, television
or the like or live entertainment, health club, bar, games/amusement room,
indoor playground, adult bookstore or flea market.
(e) Tenant agrees that the demised premises may not be used for
the operation of a bingo parlor, bar, tavern, restaurant, cocktail lounge, adult
book or adult video store (defined for the purposes hereof as a store devoting
ten percent (10%) or more of its floor space to offering books and/or video
materials for sale or for rent which are directed to or restricted to adult
customers due to sexually explicit subject matter or for any other reason making
it inappropriate for general use), adult theater or "strip-tease" establishment,
automotive maintenance or automotive repair facility, warehouse, car wash, pawn
shop, check cashing service, establishment selling second hand goods, flea
market, entertainment or recreational facility (as defined below), training or
educational facility (as defined below); the renting, leasing, selling or
displaying of any boat, motor vehicle or trailer; industrial or manufacturing
purposes; a carnival, circus or amusement park; a gas station, facility for the
sale of paraphernalia for use with illicit drugs, funeral home, blood bank or
mortuary, gambling establishment, banquet hall, auditorium or other place of
public assembly, second-hand or surplus store, gun range; the sale of fireworks;
a veterinary hospital or animal raising facility; the storage of goods not
intended to be sold from the Center; a video rental store, karate center,
central laundry or dry cleaning plant, supermarket or any facility which is
illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dust
or vapors or loud noise or sounds or is inconsistent with community oriented
shopping centers. For the purposes of this Section 20(e), the phrase
"entertainment or recreational facility" shall include, without limitation, a
movie or live theater or cinema, bowling alley, skating rink, gym, health spa or
studio, dance hall or night club, billiard or pool hall, massage parlor, health
club, game parlor or video arcade (which shall be defined as any store
containing more than five (5) electronic games) or any other facility operated
solely for entertainment purposes (such as a "laser tag" or "virtual reality"
theme operation). For the purposes of this Section 20(e), the phrase "training
or educational facility" shall include, without limitation, a beauty school,
nail salon, xxxxxx college, reading room, place of instruction or any other
operation catering primarily to students or trainees as opposed to customers.
17
SECTION 21. NUISANCES
Tenant shall not perform any acts or carry on any practice which may
injure the demised premises or be a nuisance or menace to other tenants in the
Shopping Center.
SECTION 22. WASTE AND REFUSE REMOVAL
Tenant covenants that it will use, maintain and occupy said demised
premises in a careful, safe, lawful and proper manner and will not commit waste
therein. Landlord or its agent shall have access at all reasonable times to the
demised premises for purposes of inspecting and examining the condition and
maintenance of the demised premises. Tenant agrees to remove all refuse from the
demised premises in a timely, clean and sanitary manner. Tenant shall provide a
refuse collection container at the rear of the demised premises to accommodate
Tenant's refuse and Tenant shall routinely clean up around trash containers.
Tenant shall contract with a licensed and insured refuse collection contractor
to timely remove refuse therefrom and the location of the container shall be
approved by Landlord.
SECTION 23. DESTRUCTION OF PREMISES
(a) Landlord shall at all times during the term of this Lease
carry property insurance on the building containing the demised premises,
including the structural components (foundations, floors, walls, windows,
structural supports, roof, heating ventilating and air conditioning systems
(hereinafter, "HVAC"), electrical systems, and plumbing) thereof. Landlord shall
be under no obligation to maintain insurance on any improvements installed by or
for the benefit of Tenant's use of the premises or otherwise owned by Tenant.
Landlord may elect to self-insure its obligations hereunder and/or use whatever
deductibles as Landlord deems appropriate, in its sole discretion.
(b) If the demised premises shall be damaged, destroyed, or
rendered untenantable, in whole or in part, by or as the result or consequence
of fire or other casualty during the term hereof, Landlord shall repair and
restore the same to a good tenantable condition with reasonable dispatch. During
such period of repair, the rent herein provided for in this Lease shall xxxxx
(i) entirely in case all of the demised premises are untenantable; and (ii)
proportionately if only a portion of the demised premises is untenantable and
Tenant is able to economically conduct its business from the undamaged portion
of the demised premises. The abatement shall be based upon a fraction, the
numerator of which shall be the square footage of the damaged and unusable area
of the demised premises and the denominator shall be the total square footage of
the demised premises. Said abatement shall cease at such time as the demised
premises shall be restored to a tenantable condition.
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(c) In the event the demised premises, because of such damage or
destruction, are not repaired and restored to a tenantable condition with
reasonable dispatch within one hundred fifty (150) days from the date of receipt
of insurance proceeds for such damage or destruction, Tenant or Landlord may, at
their option, terminate this Lease within sixty (60) days following such one
hundred fifty (150) day period but prior to the repair and restoration of same
by giving prior written notice to the other party and thereupon Landlord and
Tenant shall be released from all future liability and obligations under this
Lease.
(d) If one-third (1/3) or more of the ground floor area of the
demised premises are damaged or destroyed during the last two (2) years of the
original or any extended term of this Lease, Landlord shall have the right to
terminate this Lease by written notice to Tenant within sixty (60) days
following such damage or destruction, unless Tenant shall, within thirty (30)
days following receipt of such notice, offer to extend the term of this Lease
for an additional period of five (5) years from the date such damage or
destruction is repaired and restored. If Tenant makes said offer to extend,
Landlord and Tenant shall determine the terms and conditions of said extension
within thirty (30) days thereafter or Tenant's offer shall not be deemed to
prevent Landlord from canceling this Lease. If such terms and conditions have
been mutually agreed to by the parties, then Landlord shall accept Tenant's
offer and shall repair and restore the demised premises with reasonable dispatch
thereafter.
(e) If Landlord is required or elects to repair and restore the
demised premises as herein provided, Tenant shall repair or replace its stock in
trade, trade fixtures, furniture, furnishings and equipment and other
improvements including floor coverings, and if Tenant has closed, Tenant shall
promptly reopen for business. Anything contained in this Section 23 to the
contrary notwithstanding, Landlord's restoration and repair obligations under
Section 23 shall in no event include restoration or repair of Tenant's Work or
improvements.
SECTION 24. LANDLORD REPAIRS
(a) Landlord shall keep in good order, condition, and repair the
following: (i) structural portions of the demised premises; (ii) downspouts;
(iii) gutters; (iv) the roof of the Building of which the demised premises forms
a part; and (v) the plumbing and sewage system serving the demised premises but
located outside of the demised premises, except (as to all items) for damage
caused by any negligent act or omission of Tenant or its customers, employees,
agents, invitees, licensees or contractors, which shall be repaired or replaced
as necessary, at the sole cost and expense of Tenant. "Structural portions"
shall mean only the following: (vi) foundations; (vii) exterior walls except for
interior faces); (viii)
19
concrete slabs; (ix) the beams and columns bearing the main load of the roof;
and (x) the floors (but not floor coverings).
(b) Notwithstanding the provisions of Section 24(a) above,
Landlord shall not be obligated to repair the following: (i) the exterior or
interior of any doors, windows, plate glass, or showcases surrounding the
demised premises or the store front; (ii) HVAC unit(s), equipment and systems
(including all components thereof) in the demised premises; (iii) damage to
Tenant's improvements or personal property caused by any casualty, burglary,
break-in, vandalism, acts of terrorism, war or act of God; and (iv) damages
caused to structure or building as a result of burglary or break-in. Landlord
shall, in any event, have ten (10) days after notice from Tenant stating the
need for repairs to complete same, or commence and proceed with due diligence to
complete same. Nevertheless, Landlord shall be obligated to replace all HVAC
components as and when necessary so long as Tenant has fulfilled its obligations
under Section 25(a) (ii) below. Tenant expressly hereby waives the provisions of
any law permitting repairs by a tenant at Landlord's expense.
(c) The provisions of this Section 24 shall not apply in the case
of damage or destruction by fire or other casualty or a taking under the power
of eminent domain in which events the obligations of Landlord shall be
controlled by Section 23 and Section 17 respectively.
(d) Landlord shall assign to Tenant all warranties covering all
matter required by the terms hereof to be repaired and maintained by Landlord.
SECTION 25. TENANT'S REPAIRS
(a) Tenant shall keep and maintain, at Tenant's expense, all and
every other part of the demised premises in good order, condition and repair,
including, by way of example but not limitation: (i) all leasehold improvements;
(ii) all HVAC unit(s), equipment and systems (including all components thereof)
serving the demised premises; (iii) interior plumbing and sewage facilities;
(iv) all interior lighting; (v) electric signs; (vi) all interior walls; (vii)
floor coverings; (viii) ceilings; (ix) appliances and equipment; (x) all doors,
exterior entrances, windows and window moldings; (xi) plate glass; (xii) signs
and showcases surrounding and within the demised premises; (xiii) the store
front; (xiv) sprinkler systems including supervisory alarm service in accordance
with National Fire Protection Association standards and current local and state
fire protection standards to ensure property operation, and as required by
Section 27(b) below.
(b) Sprinkler systems, if any, located in Tenant's area shall be
maintained in accordance with National Fire Protection Association standards to
ensure proper operation. Sprinkler control valves
20
(interior and exterior) located in Tenant's area shall be monitored by
supervisory alarm service. In the event local or state codes do not require
alarm systems, Tenant shall provide alarm service on all sprinkler systems to
detect water flow and tampering with exterior and interior main control valves
of the sprinkler system servicing Tenant's premises. Moreover, it shall be
Tenant's responsibility to contact the Commercial Property Manager at 0000
Xxxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000-0000, (000) 000-0000, in the event the
sprinkler system in the demised premises is ever shut off for any reason, and
advise same of any damage occasioned or caused by the actions of Tenant, its
agents, invitees, or employees, and/or as a result of Tenant's repair
obligations hereunder. In the event fifty percent (50%) or more of the total
number of sprinkler heads require replacement at any one time as part of
ordinary maintenance, such cost shall be fifty percent (50%) borne by Landlord
and fifty percent (50%) borne by Tenant. Tenant shall replace all sprinkler
heads due to painting or environmental exposure from Tenant's operations. All
other cost of maintaining the sprinkler system in Tenant's area shall be paid by
Tenant.
(c) If Landlord deems any repair which Tenant is required to make
hereunder to be necessary, Landlord may demand that Tenant make such repair
immediately. If Tenant refuses or neglects to make such repair and to complete
the same with reasonable dispatch, Landlord may make such repair and Tenant
shall, on demand, immediately pay to Landlord the cost of said repair, together
with annual interest at the Interest Rate. Landlord shall not be liable to
Tenant for any loss or damage that may accrue to Tenant's stock or business by
reason of such work or its results.
(d) Neither Tenant nor any of its contractors are permitted access
to or permitted to perform alterations of any kind to the roof of the building.
(e) Tenant shall pay promptly when due the entire cost of work in
the demised premises undertaken by Tenant under this Lease (including, but not
limited to, Tenant's Work and/or alterations permitted under Section 8 of this
Lease) so that the demised premises and the Shopping Center shall at all times
be free of liens for labor and materials arising from such work; to procure all
necessary permits before undertaking any such work; to do all of such work in a
good and workmanlike manner, employing materials of good quality; to perform
such work only with contractors previously reasonably approved of in writing by
Landlord; to comply with all governmental requirements; and save Landlord and
its agents, officers, employees, contractors and invitees harmless and
indemnified from all liability, injury, loss, cost, damage and/or expense
(including reasonable attorneys' fees and expenses) in respect
21
of any injury to, or death of, any person, and/or damage to, or loss or
destruction of, any property occasioned by or growing out of any such work.
SECTION 26. COVENANT OF TITLE AND PEACEFUL POSSESSION
Subject to the provisions of Section 12 hereof, Landlord shall, on or
before the date on which Tenant is permitted to install its merchandise and
fixtures in the demised premises, have good and marketable first leasehold
interest to the demised premises and the right to make this Lease for the term
aforesaid. At such time, Landlord shall put Tenant into complete and exclusive
possession of the demised premises, and if Tenant shall pay the rental and
perform all the covenants and provisions of this Lease to be performed by the
Tenant, Tenant shall, during the term hereby demised, freely, peaceably, and
quietly enjoy and occupy the full possession of the demised premises and the
common facilities of the Shopping Center, subject, however, to the terms and
conditions of this Lease.
SECTION 27. TENANT'S AND LANDLORD'S INSURANCE; INDEMNITY
(a) Tenant's Property Insurance. Tenant agrees to procure and
maintain during the demised term a property insurance policy written on the
causes of loss-special form (also referred to as the special extended coverage
form), or the most broad property insurance form then available, insuring
against loss of, or damage to, Tenant's property, in, on or about the demised
premises. Such property insurance shall include coverage (whether by additional
policies, endorsements or otherwise): (i) against earthquake and flood; (ii) for
plate glass; (iii) in an amount equal to the full insurable replacement cost,
without deduction for depreciation; (iv) with an agreed valuation provision in
lieu of, or in an amount sufficient to satisfy, any co-insurance clause; (v)
against inflation (also known as inflation guard); (vi) for any costs due to
ordinances or laws; and (vii) as Landlord may from time to time reasonably
require Tenant to procure and maintain. Landlord shall not be liable for any
damage to Tenant's property in, on or about the demised premises caused by fire
or other insurable hazards regardless of the nature or cause of such fire or
other casualty, and regardless of whether any negligence of Landlord or
Landlord's employees or agents contributed thereto. Tenant expressly releases
Landlord of and from all liability for any such damage and Tenant agrees that
its property insurance policies required hereunder shall include a waiver of
subrogation recognizing this release from liability.
(b) Boiler and Machinery Insurance. Tenant agrees to maintain a
comprehensive boiler and machinery policy on a full repair and replacement cost
basis, and further in accordance with the requirements of Section
27(a)(iii)-(vi) above, with an admitted, reputable insurance carrier covering
property damage as a result of a loss from boiler(s), pressure vessel(s), HVAC
equipment, or other
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electrical or mechanical apparatus within or servicing the demised premises,
furniture, fixtures, equipment and inventory together with property of others in
the care, custody and control of Tenant. The deductible for property damage
under such policy shall not exceed Five Thousand Dollars ($5,000.00) per
occurrence.
(c) Additional Tenant Insurance. Tenant's insurance required under
Section (27(a) and (b) above shall also include business income coverage against
any interruption (including utility interruption) in Tenant's business (whether
direct, indirect, contingent or interdependent), including, but not limited to,
coverage for Tenant's leasehold interests and obligations to continue paying all
rental amounts hereunder, lost revenues and income, and extra expense. Such
coverage should be for a period of at least twelve (12) months, with an extended
period of indemnity of at least thirty (30) days. The deductible for such
coverage may not exceed twenty-four (24) hours.
(d) Tenant's Commercial General Liability Insurance. Tenant agrees
to procure and maintain during the demised term commercial general liability
insurance by a responsible insurance company or companies, with policy limits of
not less than $1,000,000.00 per occurrence and $2,000,000.00 annual aggregate,
and $500,000.00 limits for fire and legal liability, insuring against liability
for losses, claims, demands or actions for bodily injury (including death) and
property damage arising from Tenant's conduct and operation of its business in
and Tenant's use, maintenance and occupancy of, the demised premises and any
areas adjacent thereto, or the acts or omissions of Tenant's employees and
agents. Such commercial general liability policy may be written on a blanket
basis to include the demised premises in conjunction with other premises owned
or operated by Tenant but shall be written such that the required policy limits
herein specifically apply on a per location basis to the demised premises.
Tenant's commercial general liability insurance policy shall further provide:
(i) coverage for defense costs (in excess of policy limits); (ii) contractual
liability coverage; (iii) cross-liability coverage; and, (iv) that Landlord, its
shareholders, officers, directors, employees, and agents, are named as
additional insureds such that (Y) Tenant's policy shall be the primary source of
insurance for such additional insured and (Z) any liability policy carried by
such additional insureds shall be in excess of, and will not contribute with or
to, Tenant's commercial general liability insurance required to be maintained
hereunder. At the time this Lease is executed and thirty (30) days prior to the
expiration of such insurance policy, Tenant shall furnish to Landlord
certificates of insurance evidencing the continuous existence during the term of
this Lease of Tenant's commercial general liability insurance coverage, which
certificates shall include attachment of additional insured endorsement, name
any and all non-
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standard exclusions or limitations, and provide not less than thirty (30) days
notice of cancellation or termination to Landlord (and any other additional
insured, if applicable). All insurance companies must be licensed to do business
in the state where the premises are located. Tenant shall further procure and
maintain other liability insurance (including, but not limited to, liquor and
pollution insurance) as Landlord may from time to time reasonably require.
(e) Worker's Compensation. Tenant agrees to provide and keep in
force at all times worker's compensation insurance complying with the law of the
state in which the premises are located. Tenant agrees to defend, indemnify and
hold harmless Landlord from all actions or claims of Tenant's employees or
employee's family members. Tenant agrees to provide a certificate as evidence of
proof of worker's compensation coverage.
If Tenant hires contractors to do any improvements on the demised
premises, each contractor must provide proof of worker's compensation coverage
on its employees and agents to Landlord.
(f) Contingent Liability and Builder's Risk Insurance. With
respect to any alterations or improvements by Tenant, Tenant shall maintain
contingent liability and builder's risk coverage naming Landlord as an
additional insured, in compliance with the additional insured requirements set
forth in Section 27(d).
(g) Landlord's Property Insurance. Commencing as of the
Commencement Date, and thereafter throughout the term of this Lease, Landlord
shall, at Landlord's sole cost and expense, provide and maintain or cause to be
provided and maintained a property insurance policy insuring all buildings (and
building additions) and other improvements in the Center, Tenant's store
building, and Tenant Improvements (but excluding those items insured by Tenant
as required under this Section 27) for all the hazards and perils normally
covered by the Causes of Loss-Special Form. Said property insurance policy shall
include endorsements for coverage against: (i) earthquake and flood (including,
but not limited to, mud slide, flood hazard or fault area(s), as designated on
any map prepared or issued for such purpose by any governmental authority); and
(ii) increased costs of construction and demolition due to law and ordinance.
The foregoing property coverage shall be provided in amounts sufficient to
provide one hundred percent (100%) of the full replacement cost of all buildings
(and building additions) and other improvements in the Center, Tenant's store
building, and Tenant Improvements (but excluding those items insured by Tenant
as required under this Section 27). If for any reason the Causes of Loss-Special
Form is not customarily used in the insurance industry, then the property
insurance policy then in effect shall at least provide coverage for the
following perils: fire, lightning, windstorm and hail, explosion,
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smoke, aircraft and vehicles, riot and civil commotion, vandalism and malicious
mischief, sprinkler leakage, sinkhole and collapse, volcanic action, earthquake
or earth movement, and flood, and increased costs of construction and demolition
due to law, ordinance and inflation. Neither Tenant nor any of its affiliates or
subtenants shall be liable to Landlord for any loss or damage (including loss of
income), regardless of cause, resulting from fire, flood, act of G-d or other
casualty.
(h) Landlord's Commercial General Liability Insurance. Commencing
as of the Commencement Date, and thereafter throughout the term of this Lease,
Landlord shall, at Landlord's sole cost and expense, provide and maintain or
cause to be provided and maintained a commercial general liability policy,
naming Landlord as an insured (and naming Tenant as an additional insured, said
additional insured's coverage under Landlord's commercial general liability
policy to be primary), protecting Landlord, the business operated by Landlord,
and any additional insureds (including Tenant) against claims for bodily injury
(including death) and property damage occurring upon, in or about the Center
(other than the demised premises and those areas insured by other tenants at the
Center), including Common Areas. Such insurance shall afford protection to the
limits of not less than One Million Dollars ($1,000,000.00) per occurrence, Two
Million Dollars ($2,000,000.00) annual aggregate, and Five Hundred Thousand
Dollars ($500,000.00) with respect to property damage for fire legal liability.
All liability policies shall be written on an occurrence form unless such form
is no longer customarily used in the insurance industry. Landlord may use
commercially reasonable deductibles Landlord customarily carries in the conduct
of its business; however, the amount of such deductibles which may be charged to
Tenant pursuant to Section 12.09 below may not exceed $0.20 per square foot of
gross leasable area of the demised premises in any lease year.
(i) Landlord's Umbrella. Commencing as of the Commencement Date,
and thereafter throughout the term of this Lease, Landlord shall, at Landlord's
sole cost and expense, provide and maintain or cause to be provided and
maintained an umbrella liability insurance policy with a Ten Million Dollar
($10,000,000.00) minimum annual aggregate, which umbrella policy (or policies)
shall list Landlord's commercial general liability policy required under this
Section 27 and any other liability policy or policies carried by, or for the
benefit of, Landlord as underlying policies. Said umbrella liability policy
shall also name Tenant as an additional insured (said additional insured's
coverage under Landlord's umbrella liability policy to be primary). All
liability policies shall be written on an occurrence form unless such form is no
longer customarily used in the insurance industry.
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(j) Tenant Indemnity. Tenant shall indemnify Landlord, Landlord's
agents, employees, officers or directors, against all damages, claims and
liabilities arising from any alleged products liability or from any accident or
injury whatsoever caused to any person, firm or corporation during the demised
term in the demised premises, unless such claim arises from a breach or default
in the performance by Landlord of any covenant or agreement on its part to be
performed under this Lease or, to the extent not required to be insured
hereunder, the negligence of Landlord. The indemnification herein provided shall
include all reasonable costs, counsel fees, expenses and liabilities incurred in
connection with any such claim or any action or proceeding brought thereon.
(k) Landlord Indemnity. Landlord shall indemnify Tenant, Tenant's
officers, directors, employees and agents against all damages, claims and
liabilities arising from any accident or injury whatsoever caused to any person,
firm or corporation during the demised term in the common areas of the Shopping
Center, unless such claim arises from a breach or default in the performance by
Tenant of any covenant or agreement on Tenant's part to perform under this Lease
or, to the extent not required to be insured hereunder, the negligence of
Tenant. The indemnification herein provided shall include all reasonable costs,
counsel fees, expenses and liabilities incurred in connection with any such
claim or any action or proceeding brought thereon.
SECTION 28. REAL ESTATE TAXES
(a) Tenant shall pay Tenant's Proportionate Share (as defined in
Section 16(c) above) of any "real estate taxes" (defined in Section 28(b) below)
imposed upon the Shopping Center that become due and payable during each lease
year included within the period commencing with the commencement date and ending
with the expiration of the term of this Lease. Tenant shall initially pay to
landlord as additional rental, simultaneously with the payment of minimum rental
called for under Section 5(a), the estimated monthly amount of Tenant's
Proportionate Share of real estate taxes as set forth in Section 5(e) of One and
90/100 Dollars ($1.90) per square foot, payable in equal monthly installments of
Four Thousand Fifty Three and 33/100 Dollars ($4,053.33) as the estimated amount
of Tenant's Proportionate Share of real estate taxes. Within one hundred twenty
(120) days after the end of each accounting year (which Landlord may change from
time to time), Landlord shall provide Tenant with an annual reconciliation of
real estate taxes and a statement of the actual amount of Tenant's Proportionate
Share thereof. Any excess payments from Tenant shall be applied to the next
installments of real estate taxes hereunder, or refunded by Landlord. Any
underpayments by Tenant shall be paid to Landlord within
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thirty (30) days after receipt of such reconciliation statement. Tenant's
estimated monthly installment of real estate taxes payable hereunder may be
adjusted by written notice from Landlord.
(b) For the purpose of this Lease, the term "real estate taxes"
shall include any special and general assessments, water and sewer rents and
other governmental impositions imposed upon or against the Shopping Center of
every kind and nature whatsoever, extraordinary as well as ordinary, foreseen
and unforeseen and each and every installment thereof, which shall or may during
the lease term be levied, assessed or imposed upon or against such Shopping
Center and of all expenses, including reasonable attorneys' fees, administrative
hearing and court costs incurred in contesting or negotiating the amount,
assessment or rate of any such real estate taxes, minus any refund received by
Landlord.
(c) Notwithstanding any provision of this Lease to the contrary,
Tenant shall not be obligated to pay for any assessment for special improvements
heretofore installed or in the process of installation in connection with the
initial development of the Shopping Center, and Landlord hereby agrees to pay
for the same.
(d) The real estate taxes for any lease year shall be the real
estate taxes that become due and payable during such lease year. If any lease
year shall be greater than or less than twelve (12) months, or if the real
estate tax year shall be changed, an appropriate adjustment shall be made. If
there shall be more than one taxing authority, the real estate taxes for any
period shall be the sum of the real estate taxes for said period attributable to
each taxing authority. If, upon the assessment day for real estate taxes for any
tax year fully or partly included within the term of this Lease, a portion of
such assessment shall be attributable to buildings in the process of
construction, a fair and reasonable adjustment shall be made to carry out the
intent of this Section 28.
(e) Upon request, Landlord shall submit to Tenant true copies of
the real estate tax xxxx for each tax year or portion of a tax year included
within the term of this Lease and shall xxxx Tenant for the amount to be paid by
Tenant hereunder. Said xxxx shall be accompanied by a computation of the amount
payable by Tenant and such amount shall be paid by Tenant within thirty (30)
days after receipt of said xxxx.
(f) Should the State of Michigan or any political subdivision
thereof or any governmental authority having jurisdiction thereof, impose a tax
and/or assessment (other than an income or franchise tax) upon or against the
rentals payable hereunder, in lieu of or in addition to assessments levied or
assessed against the demised premises, or Shopping Center, then such tax and/or
assessment shall be deemed to constitute a tax on real estate for the purpose of
this Section 28.
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SECTION 29. TENANT'S INSURANCE CONTRIBUTION
Tenant shall pay as additional rent, Tenant's Proportionate Share (as
defined in Section 16(c) above) of the premiums for the insurance maintained by
Landlord on all buildings and improvements, as well as liability insurance, for
the Shopping Center, including the common areas, as set forth above in Section
16(b), for each lease year during the term of this Lease. The premiums for the
first and last lease years shall be prorated. Tenant shall pay Tenant's
Proportionate Share of such premiums annually upon demand for such payment by
Landlord. Tenant's Proportionate Share thereof shall be paid by Tenant within
thirty (30) days after Landlord's demand therefor. Tenant shall initially pay to
Landlord as additional rental, simultaneously with the payment of minimum rental
called for under Section 5(a), the estimated monthly amount of Tenant's
Proportionate Share of such insurance premiums as set forth in Section 5(e), of
ten cents ($.10) per square foot, payable in equal monthly installments of Two
Hundred Thirteen and 33/100 Dollars ($213.33) as the estimated amount of
Tenant's Proportionate Share of such insurance premiums. Within one hundred
twenty (120) days after the end of each accounting year (which Landlord may
change from time to time), Landlord shall provide Tenant with a reconciliation
of the premiums for the insurance maintained by Landlord hereunder and a
statement of the actual amount of Tenant's Proportionate Share thereof. Any
excess payments from Tenant shall be applied to the next installments of
insurance premiums payable by Tenant hereunder, or refunded by Landlord. Any
underpayments by Tenant shall be paid to Landlord within thirty (30) days after
receipt of such reconciliation statement. Tenant's monthly installment of
insurance premiums payable hereunder may be adjusted by written notice from
Landlord.
SECTION 30. FIXTURES
Provided that Tenant shall repair any damage caused by removal of its
property and provided that the Tenant is not in default under this Lease, Tenant
shall have the right to remove from the demised premises all of its signs,
shelving, electrical, and other fixtures and equipment, window reflectors and
backgrounds and any and all other trade fixtures which it has installed in and
upon the demised premises.
SECTION 31. SURRENDER
The Tenant covenants and agrees to deliver up and surrender to the
Landlord the physical possession of the demised premises upon the expiration of
this Lease or its termination as herein provided in as good condition and repair
as the same shall be at the commencement of the initial term,
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loss by fire and/or ordinary wear and tear excepted, and to deliver all of the
keys to Landlord or Landlord's agents.
SECTION 32. HOLDING OVER
There shall be no privilege of renewal hereunder (except as
specifically set forth in this Lease) and any holding over after the expiration
by the Tenant shall be from day to day on the same terms and conditions (with
the exception of rental which shall be prorated on a daily basis at twice the
daily rental rate of the most recent expired term) at Landlord's option; and no
acceptance of rent by or act or statement whatsoever on the part of the Landlord
or his duly authorized agent in the absence of a written contract signed by
Landlord shall be construed as an extension of the term or as a consent for any
further occupancy.
SECTION 33. NOTICE
Whenever under this Lease provisions are made for notice of any kind to
Landlord, it shall be deemed sufficient notice and sufficient service thereof if
such notice to Landlord is in writing, addressed to Landlord at 0000 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxx 00000-0000, or at such address as Landlord may notify
Tenant in writing, and deposited in the United States mail by certified mail,
return receipt requested, with postage prepaid or Federal Express, Express Mail
or such other expedited mail service as normally results in overnight delivery,
with a copy of same sent in like manner to President, Real Estate, 0000 Xxxxx
Xxxx, Xxxxxxxx, Xxxx 00000. Notice to Tenant shall be sent in like manner to
0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000. All notices shall be effective
upon receipt or refusal of receipt. Either party may change the place for
service of notice by notice to the other party.
SECTION 34. DEFAULT
(a) Elements of Default: The occurrence of any one or more of the
following events shall constitute a default of this Lease by Tenant:
1. Tenant fails to pay any monthly installment of rent within ten
(10) days after the same shall be due and payable, except for the first two (2)
times in any consecutive twelve (12) month period, in which event Tenant shall
have five (5) days after receipt of written notice of such failure to pay before
such failure shall constitute a default;
2. Tenant fails to perform or observe any term, condition,
covenant or obligation required to be performed or observed by it under this
Lease for a period of twenty (20) days after notice thereof from Landlord;
provided, however, that if the term, condition, covenant or obligation to be
performed by Tenant is of such nature that the same cannot reasonably be cured
within twenty (20) days and if Tenant
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commences such performance or cure within said twenty (20) day period and
thereafter diligently undertakes to complete the same, then such failure shall
not be a default hereunder if it is cured within a reasonable time following
Landlord's notice, but in no event later than forty-five (45) days after
Landlord's notice.
3. If Tenant refuses to take possession of the demised premises
as required pursuant to this Lease or abandons the demised premises for a period
of thirty (30) days or substantially ceases to operate its business or to carry
on its normal activities in the demised premises as required pursuant to this
Lease.
4. A trustee or receiver is appointed to take possession of
substantially all of Tenant's assets in, on or about the demised premises or of
Tenant's interest in this Lease (and Tenant or any guarantor of Tenant's
obligations under this Lease does not regain possession within sixty (60) days
after such appointment); Tenant makes an assignment for the benefit of
creditors; or substantially all of Tenant's assets in, on or about the demised
premises or Tenant's interest in this Lease are attached or levied upon under
execution (and Tenant does not discharge the same within sixty (60) days
thereafter).
5. A petition in bankruptcy, insolvency, or for reorganization or
arrangement is filed by or against Tenant or any guarantor of Tenant's
obligations under this Lease pursuant to any Federal or state statute, and, with
respect to any such petition filed against it, Tenant or such guarantor fails to
secure a stay or discharge thereof within sixty (60) days after the filing of
the same.
(b) Landlord's Remedies: Upon the occurrence of any event of
default, Landlord shall have the following rights and remedies, any one or more
of which may be exercised without further notice to or demand upon Tenant:
1. Landlord may re-enter the demised premises and cure any
default of Tenant, in which event Tenant shall reimburse Landlord for any cost
and expenses which Landlord may incur to cure such default; and Landlord shall
not be liable to Tenant for any loss or damage which Tenant may sustain by
reason of Landlord's action.
2. Landlord may terminate this Lease or Tenant's right to
possession under this Lease as of the date of such default, without terminating
Tenant's obligation to pay rent due hereunder, in which event (A): neither
Tenant nor any person claiming under or through Tenant shall thereafter be
entitled to possession of the demised premises, and Tenant shall immediately
thereafter surrender the demised premises to Landlord; (B) Landlord may re-enter
the demised premises and dispose Tenant or any other occupants of the demised
premises by force, summary proceedings, ejectment or otherwise, and may
30
remove their effects, without prejudice to any other remedy which Landlord may
have for possession or arrearages in rent; and (C) notwithstanding a termination
of this Lease, Landlord may re-let all or any part of the demised premises for a
term different from that which would otherwise have constituted the balance of
the term of this Lease and for rent and on terms and conditions different from
those contained herein, whereupon Tenant shall immediately be obligated to pay
to Landlord as liquidated damages the difference between the rent provided for
herein and that provided for in any lease covering a subsequent re-letting of
the demised premises, for the period which would otherwise have constituted the
balance of the term of this Lease, together with all of Landlord's costs and
expenses for preparing the demised premises for re-letting, including all
repairs, tenant finish improvements, broker's and attorney's fees, and all loss
or damage which Landlord may sustain by reason of such termination, re-entry and
re-letting, it being expressly understood and agreed that the liabilities and
remedies specified herein shall survive the termination of this Lease.
Notwithstanding a termination of this Lease by Landlord, Tenant shall remain
liable for payment of all rentals and other charges and costs imposed on Tenant
herein, in the amounts, at the times and upon the conditions as herein provided.
Landlord shall credit against such liability of the Tenant all amounts received
by Landlord from such re-letting after first reimbursing itself for all
reasonable costs incurred in curing Tenant's defaults and re-entering, preparing
and refinishing the demised premises for re-letting, and re-letting the demised
premises.
3. Upon termination of this Lease pursuant to Section 34(b)2,
Landlord may recover possession of the demised premises under and by virtue of
the provisions of the laws of the State of Michigan, or by such other
proceedings, including reentry and possession, as may be applicable.
4. If the Tenant shall not remove all of Tenant's property from
said demised premises as provided in this Lease, Landlord, at its option, may
remove any or all of said property in any manner that Landlord shall choose and
store same without liability for loss thereof, and Tenant will pay the Landlord,
on demand, any and all reasonable expenses incurred in such removal and storage
of said property for any length of time during which the same shall be in
possession of Landlord or in storage, or Landlord may, upon thirty (30) days
prior notice to Tenant, sell any or all of said property in such manner and for
such price as the Landlord may reasonably deem best and apply the proceeds of
such sale upon any amounts due under this Lease from the Tenant to the Landlord,
including the reasonable expenses of removal and sale.
5. Any damage or loss of rent sustained by Landlord may be
recovered by Landlord, at Landlord's option, at the time of the reletting, or in
separate actions, from time to time, as said damage
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shall have been made more easily ascertainable by successive relettings, or at
Landlord's option in a single proceeding deferred until the expiration of the
term of this Lease (in which event Tenant hereby agrees that the cause of action
shall not be deemed to have accrued until the date of expiration of said term)
or in a single proceeding prior to either the time of reletting or the
expiration of the term of this Lease.
6. In the event of a breach by Tenant of any of the covenants or
provisions hereof, Landlord shall have the right of injunction and the right to
invoke any remedy allowed at law or in equity as if reentry, summary
proceedings, and other remedies were not provided for herein. Mention in this
Lease of any particular remedy shall not preclude Landlord from any other
remedy, in law or in equity. Tenant hereby expressly waives any and all rights
of redemption granted by or under any present or future laws in the event of
Tenant being evicted or dispossessed for any cause, or in the event of Landlord
obtaining possession of the demised premises by reason of the violation by
Tenant of any of the covenants and conditions of this Lease or other use.
7. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws, in the event of
eviction or dispossession of Tenant by Landlord under any provision of this
Lease. No receipt of monies by Landlord from or for the account of Tenant or
from anyone in possession or occupancy of the demised premises after the
termination of this Lease or after the giving of any notice shall reinstate,
continue or extend the term of this Lease or affect any notice given to the
Tenant prior to the receipt of such money, it being agreed that after the
service of notice or the commencement of a suit, or after final judgment for
possession of said demised premises, the Landlord may receive and collect any
rent or other amounts due Landlord and such payment shall not waive or affect
said notice, said suit or said judgment.
(c) Additional Remedies and Waivers: The rights and remedies of
Landlord set forth herein shall be in addition to any other right and remedy now
or hereinafter provided by law and/or equity and all such rights and remedies
shall be cumulative and shall not be deemed inconsistent with each other, and
any two or more or all of said rights and remedies may be exercised at the same
time or at different times and from time to time without waiver thereof of any
right or remedy provided or reserved to Landlord. No action or inaction by
Landlord shall constitute a waiver of a default and no waiver of default shall
be effective unless it is in writing, signed by the Landlord.
(d) Default by Landlord. Any failure by Landlord to observe or
perform any provision, covenant or condition of this Lease to be observed or
performed by Landlord, if such failure continues for thirty
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(30) days after written notice thereof from Tenant to Landlord, shall constitute
a default by Landlord under this Lease, provided, however, that if the nature of
such default is such that the same cannot reasonably be cured within a thirty
(30) day period, Landlord shall not be deemed to be in default if it shall
commence such cure within such thirty (30) day period and thereafter rectify and
cure such default with due diligence.
(e) Interest on Past Due Obligations: All monetary amounts
required to be paid by Tenant or Landlord hereunder which are not paid on or
before the due date thereof shall, from and after such due date, bear interest
at the Interest Rate, and shall be due and payable by such party without notice
or demand.
(f) Tenant's Remedies. In the event of default by the Landlord,
Tenant shall have the option to cure said default. Landlord shall reimburse
Tenant for the reasonable costs incurred by Tenant in curing such default within
thirty (30) days after invoice thereof by Tenant, together with reasonable
evidence supporting such invoiced amount. Tenant shall also have any and all
rights available under the laws of the state in which the demised premises are
situated; provided, however, that any right of offset available to Tenant shall
be subject to the provisions of Section 36 below.
SECTION 35. WAIVER OF SUBROGATION
Landlord and Tenant, and all parties claiming under each of them,
mutually release and discharge each other from all claims and liabilities
arising from or caused by any casualty or hazard covered or required hereunder
to be covered in whole or in part by insurance coverage required to be
maintained by the terms of this Lease on the demised premises or in connection
with the Shopping Center or activities conducted with the demised premises, and
waive any right of subrogation which might otherwise exist in or accrue to any
person on account thereof. All policies of insurance required to be maintained
by the parties hereunder shall contain waiver of subrogation provisions so long
as the same are available.
SECTION 36. LIABILITY OF LANDLORD; EXCULPATION
(a) Except with respect to any damages resulting from the gross
negligence of Landlord, its agents, or employees, Landlord shall not be liable
to Tenant, its agents, employees, or customers for any damages, losses,
compensation, accidents, or claims whatsoever. The foregoing notwithstanding, it
is expressly understood and agreed that nothing in this Lease contained shall be
construed as creating any liability whatsoever against Landlord personally, and
in particular without limiting the generality of the foregoing, there shall be
no personal liability to pay any indebtedness accruing hereunder or to perform
any covenant, either express or implied, herein contained, or to keep, preserve
or sequester any property
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of Landlord and that all personal liability of Landlord to the extent permitted
by law, of every sort, if any, is hereby expressly waived by Tenant, and by
every person now or hereafter claiming any right or security hereunder; and that
so far as the parties hereto are concerned, the owner of any indebtedness or
liability accruing hereunder shall look solely to the demised premises and the
Shopping Center for the payment thereof.
(b) If the Tenant obtains a money judgment against Landlord, any
of its officers, directors, shareholders, partners, members or their successors
or assigns under any provisions of or with respect to this Lease or on account
of any matter, condition or circumstance arising out of the relationship of the
parties under this Lease, Tenant's occupancy of the building or Landlord's
ownership of the Shopping Center, Tenant shall be entitled to have execution
upon any such final, unappealable judgment only upon Landlord's fee simple or
leasehold estate in the Shopping Center (whichever is applicable) and not out of
any other assets of Landlord, or any of its officers, directors, shareholders,
members or partners, or their successor or assigns; and Landlord shall be
entitled to have any such judgment so qualified as to constitute a lien only on
said fee simple or leasehold estate.
Notwithstanding the above, Tenant shall have the right to offset any
final, unappealable judgement against twenty five percent (25%) of all minimum
rent and all percentage rental (but no other additional rent components) if not
paid to Tenant by Landlord within thirty (30) days thereafter.
(c) It is expressly agreed that nothing in this Lease shall be
construed as creating any personal liability of any kind against the assets of
any of the officers, directors, members, partners or shareholders of Tenant, or
their successors and assigns (excluding fraud and/or negligence of any such
individual beyond the scope of such individual's employment by Tenant).
SECTION 37. RIGHTS CUMULATIVE
Unless expressly provided to the contrary in this Lease, each and every
one of the rights, remedies and benefits provided by this Lease shall be
cumulative and shall not be exclusive of any other of such rights, remedies and
benefits or of any other rights, remedies and benefits allowed by law.
SECTION 38. MITIGATION OF DAMAGES
Notwithstanding any of the terms and provisions herein contained to the
contrary, Landlord and Tenant shall each have the duty and obligation to
mitigate, in every reasonable manner, any and all damages that may or shall be
caused or suffered by virtue of defaults under or violation of any of the terms
and provisions of this Lease agreement committed by the other.
34
SECTION 39. SIGNS
No signs shall be placed on the demised premises by Tenant except as
shall comply with all applicable governmental codes, sign criteria established
by Landlord for the Shopping Center, and with the prior written consent of
Landlord (not to be unreasonably withheld) after sign drawings have been
submitted to Landlord by Tenant. Tenant shall have the right to install its
prototypical signage and awnings on the front of the demised premises as
described on Exhibit "G-1" attached hereto and made a part hereof. Tenant shall
be entitled to pylon, monument or other freestanding signage as shown on Exhibit
"G-1", and on any future pylon, monument or other freestanding signage.
SECTION 40. ENTIRE AGREEMENT
This Lease shall constitute the entire agreement of the parties hereto;
all prior agreements between the parties, whether written or oral, are merged
herein and shall be of no force and effect. This Lease cannot be changed,
modified, or discharged orally but only by an agreement in writing signed by the
party against whom enforcement of the change, modification or discharge is
sought.
SECTION 41. LANDLORD'S LIEN - DELETED BY INTENTION
SECTION 42. BINDING UPON SUCCESSORS
The covenants, conditions, and agreements made and entered into by the
parties hereto shall be binding upon and inure to the benefit of their
respective heirs, representatives, successor and assigns.
SECTION 43. HAZARDOUS SUBSTANCES
(a) During the term of this Lease, Tenant shall not suffer, allow,
permit or cause the generation, accumulation, storage, possession, release or
threat of release of any hazardous substance or toxic material, as those terms
are used in the Comprehensive Environmental Response Compensation and Liability
Act of 1980, as amended, and any regulations promulgated thereunder, or any
other present or future federal, state or local laws, ordinances, rules, and
regulations. Tenant shall indemnify and hold Landlord harmless from any and all
liabilities, penalties, demands, actions, costs and expenses (including without
limitation reasonable attorney fees), remediation and response costs incurred or
suffered by Landlord directly or indirectly arising due to the breach of
Tenant's obligations set forth in this Section. Such indemnification shall
survive expiration or earlier termination of this Lease. At the expiration or
sooner termination hereof, Tenant shall return the demised premises to Landlord
in substantially the same condition as existed on the date of commencement
hereof free of any hazardous substances in, on or from the demised premises.
35
(b) Landlord hereby represents and warrants that: (i) it has not
used, generated, discharged, released or stored any hazardous substances on, in
or under the Shopping Center and has received no notice and has no knowledge of
the presence in, on or under the Shopping Center of any such hazardous
substances; (ii) to Landlord's knowledge there have never been any underground
storage tanks at the Shopping Center, whether owned by the Landlord or its
predecessors in interest; (iii) to Landlord's knowledge there 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 Shopping Center; (iv) to
Landlord's knowledge it has not spilled, discharged or leaked petroleum products
other than de minimis quantities in connection with the operation of motor
vehicles on the Shopping Center; (v) to Landlord's knowledge there has been no
graining, filling or modification of wetlands (as defined by federal, state or
local law, regulation or ordinance) at the Shopping Center; and (vi) to
Landlord's knowledge there is no asbestos or asbestos-containing material in the
demised premises. The representations and warranties set forth in this
subparagraph shall apply to any contiguous or adjacent property owed by the
Landlord. Landlord hereby indemnifies Tenant for any and all loss, cost, damage
or expense to Tenant resulting from any misrepresentation or breach of the
foregoing representations and warranties.
(c) If any such hazardous substances are discovered at the
Shopping Center (unless introduced by the Tenant, its agents or employees) or if
any asbestos or asbestos containing material is discovered in the demised
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
Shopping 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 Shopping Center at its expense. From the date such
encapsulation, remediation and restoration is complete, the rent due hereunder
shall be reduced by the same percentage as the percentage of the demised
premises which, in the Tenant's reasonable judgement, 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
judgement, such removal, encapsulation, remediation and restoration cannot be
completed within one hundred eighty (180) days or the same is not actually
completed by Landlord within such one hundred eighty (180) day period following
the date such hazardous substances or asbestos are discovered and
36
such condition materially adversely affects Tenant's ability to conduct normal
business operations in the premises, then the Tenant may terminate this Lease by
written notice to the Landlord within thirty (30) days after such 180 day
period, 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 demised premises and the Shopping 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.
SECTION 44. TRANSFER OF INTEREST
If Landlord should sell or otherwise transfer its interest in the
demised premises, upon an undertaking by the purchaser or transferee to be
responsible for all the covenants and undertakings of Landlord accruing
subsequent to the date of such sale or transfer, Tenant agrees that Landlord
shall thereafter have no liability to Tenant under this Lease or any
modifications or amendments thereof, or extensions thereof, except for such
liabilities which might have accrued prior to the date of such sale or transfer
of its interest by Landlord.
SECTION 45. ACCESS TO PREMISES
Landlord and its representatives shall have free access to the demised
premises at all reasonable times for the purpose of: (a) examining the same or
to make any alterations or repairs to the demised premises that Landlord may
deem necessary for its safety or preservation; (b) exhibiting the demised
premises for sale or mortgage financing; (c) during the last three (3) months of
the term of this Lease, for the purpose of exhibiting the demised premises and
putting up the usual notice "to rent" which notice shall not be removed,
obliterated or hidden by Tenant, provided, however, that any such action by
Landlord shall cause as little inconvenience as reasonably practicable and such
action shall not be deemed an eviction or disturbance of Tenant nor shall Tenant
be allowed any abatement of rent, or damages for an injury or inconvenience
occasioned thereby.
SECTION 46. HEADINGS
The headings are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope or intent of this
Lease.
SECTION 47. NON-WAIVER
No payment by Tenant or receipt by Landlord or its agents of a lesser
amount than the rent in this Lease stipulated shall be deemed to be other than
on account of the stipulated rent nor shall an endorsement or statement on any
check or any letter accompanying any check or payment of rent be
37
deemed an accord and satisfaction and Landlord or its agents may accept such
check or payment without prejudice to Landlord's right to recover the balance of
such rent or pursue any other remedy in this Lease provided.
SECTION 48. SHORT FORM LEASE
This Lease shall not be recorded, but a short form lease, which
describes the property herein demised, gives the term of this Lease and refers
to this Lease, shall be executed by the parties hereto, upon demand of either
party and such short form lease may be recorded by Landlord or Tenant at any
time either deems it appropriate to do so. The cost and recording of such short
form lease shall belong to the requesting party.
SECTION 49. ESTOPPEL CERTIFICATE
Each party agrees that at any time and from time to time on ten (10)
days prior written request by the other, it will execute, acknowledge and
deliver to the requesting party a statement in writing stating that this Lease
is unmodified and in full force and effect (or, if there have been
modifications, stating the modifications, and that the Lease as so modified is
in full force and effect, and the dates to which the rent and other charges
hereunder have been paid, and such other information as may reasonably re
requested, it being intended that any such statements delivered pursuant to this
Section may be relied upon by any current or prospective purchaser of or any
prospective holder of a mortgage or a deed of trust upon or any interest in the
fee or any leasehold or by the mortgagee, beneficiary or grantee of any security
or interest, or any assignee of any thereof or under any mortgage, deed of trust
or conveyance for security purposes now or hereafter done or made with respect
to the fee of or any leasehold interest in the demised premises
SECTION 50. TENANT'S REIMBURSEMENT
(a) Landlord shall pay Tenant Three Hundred Thousand Dollars
($300,000.00) (the "Tenant Reimbursement"), as payment for all costs incurred on
behalf of Tenant for the purchase, erection, and installation of Tenant
Improvements on or within the demised premises. "Tenant Improvements" shall
consist of the work described in the attached Exhibit "G-2". The Tenant
Reimbursement shall be paid by Landlord to Tenant within ten (10) days of the
later of (i) Tenant opening for business in the demised premises and (ii) Tenant
providing to Landlord a lien waiver from Tenant's general contractor. In the
event Landlord does not timely pay the Tenant Reimbursement to Tenant, (a)
Landlord shall pay to Tenant interest on such unpaid amounts at a rate of
interest equal to four percent (4%) over the prime rate in effect from time to
time as established by National City Bank, Columbus, Ohio and (b) Tenant
38
shall have the right to deduct any and all such amounts owed Tenant against
payments of Rent thereafter due Landlord until such time as Tenant has been
credited the full amount of the Tenant Reimbursement plus applicable interest.
(b) Notwithstanding anything to the contrary contained in this
Lease, the Tenant Improvements shall, at all times during the term of this Lease
and upon the expiration or earlier termination of this Lease, be the property of
Landlord. Tenant shall not acquire any interest, equitable or otherwise, in any
Tenant Improvement.
SECTION 51. TENANT'S TERMINATION RIGHT:
In the event that Tenant's gross receipts from the demised premises, as
calculated by Tenant in accordance with generally accepted accounting principles
consistently applied, shall be less than Eight Million One Hundred Thousand
Dollars ($8,100,00.00) in either of the eighth (8th) or ninth (9th) lease years
of the initial term hereof, Tenant shall have the right, at Tenant's sole
election, provided that Tenant is not then in default of the terms of this Lease
beyond any applicable notice and cure periods, on or before the date (the "Last
Termination Notice Date") which is thirty (30) days after the end of the ninth
(9th) lease year, to send to Landlord a notice terminating this Lease as of the
last day of the tenth (10th) lease year (the "Tenant's Termination Date"). In
the event that Tenant shall so terminate this Lease in accordance with the
provisions of this Section 51, then the term of this Lease shall terminate and
expire on Tenant's Termination Date with the same force and effect as though
said date was the scheduled expiration date of the term under this Lease.
Notwithstanding the giving of such termination notice and Tenant's exercise of
its termination right under this Section 51, Tenant shall perform and observe
all of Tenant's obligations under this Lease through and including the Tenant's
Termination Date. In the event Tenant exercises the termination right provided
for in this Section 51, Landlord shall have the right, upon ten (10) days prior
written notice, at Tenant's corporate headquarters, to examine Tenant's books
and records relating to gross receipts at the demised premises, provided such
right shall expire sixty (60) days after Tenant notifies Landlord of Tenant's
exercise of Tenant's election to terminate the Lease pursuant to the provisions
of this Section 51.
SECTION 52. NO BROKER:
Landlord and Tenant each represent to the other that they have not
entered into any agreement or incurred any obligation in connection with this
transaction which might result in the obligation to pay a brokerage commission
to any broker. Each party shall indemnify and hold the other party harmless from
and against any claim or demand by any broker or other person for bringing about
this Lease who claims
39
to have dealt with such indemnifying party, including all expenses incurred in
defending any such claim or demand (including reasonable attorney's fees).
SECTION 53. UNAVOIDABLE DELAYS:
In the event either party hereto (the "Delayed Party") shall be delayed
or hindered in or prevented from the performance of any act required under this
Lease by reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, the unforeseen application of restrictive
governmental laws or regulations, riots, insurrection, war, acts of terrorism or
other reason of a like nature not the fault of the Delayed Party in performing
work or doing acts required under the terms of this Lease, then performance of
such act shall be excused for the period of the delay, and the period for the
performance of any such act shall be extended for a period equivalent to the
period of such delay, provided that the Delayed Party notified the other party
within fifteen (15) days of the Delayed Party being informed of the occurrence
of the event causing such delay. The provisions of this Section 53 shall not
operate to excuse either party from the payment of any rental or other monetary
sums due under the terms of this Lease.
SECTION 54. TIMELY EXECUTION OF LEASE:
Landlord and Tenant agree that this Lease, and the parties' obligations
hereunder, shall automatically be null and void and this Lease shall terminate
automatically without further action of the parties if both parties do not
execute this Lease and both parties have not received an original thereof within
sixty (60) days after the date of execution hereof by the first party to execute
this Lease.
SECTION 55. ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than the
entire rent and all other additional rents and charges hereunder shall be deemed
to be other than payment on account of the earliest stipulated rent and other
additional rents and charges hereunder, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment for rent or other
additional rent and charges be deemed an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance of such rent and other additional rents and charges or
pursue any other right or remedy available to the Landlord.
SECTION 56. WAIVER OF JURY TRIAL
The Landlord, Tenant any Guarantor(s) do hereby knowingly, voluntarily
and intentionally waive the right to a trial by jury of any and all issues
either now or hereinafter provided by law in any action or proceeding between
the parties hereto, or their successors, arising directly or indirectly out of
or in any way connected with this Lease or any of its provisions, the Tenant's
use or occupancy of said premises
40
and/or any claim for personal injury or property damage including, without
limitation, any action to rescind or cancel this Lease, and any claim or defense
asserting that this Lease was fraudulently induced or is otherwise void or
voidable. It is intended that said waiver shall apply to any and all defenses,
rights and/or counterclaims in any action or proceeding at law or in equity.
This waiver is a material inducement for Landlord and Tenant to enter into this
Lease.
SECTION 57. LEASEHOLD FINANCING
(a) Tenant's Financing Rights. Landlord acknowledges and agrees
that Tenant may from time to time during the term, without the consent of
Landlord, mortgage or otherwise finance and encumber, whether by leasehold deed
of trust or mortgage, collateral assignment of this Lease, lease/sublease-back,
and/or assignment/leaseback, any and/or all of its leasehold estate hereunder,
and property and rights in and to the demised premises granted to it under this
Lease, as security for the payment of an indebtedness (any and all of which are
herein referred to as a "Leasehold Mortgage" and the holder thereof is herein
referred to as "Leasehold Mortgagee"). Any such Leasehold Mortgage shall be a
lien only upon Tenant's leasehold estate hereunder and Tenant's interests in
this Lease. Leasehold Mortgagee or its assigns may enforce such Leasehold
Mortgage and acquire title to the leasehold estate and Tenant's interest in the
demised premises in any lawful way, and in connection therewith Leasehold
Mortgagee may take possession of and rent the demised premises.
(b) Cooperation with Leasehold Mortgagee. Tenant shall notify
Landlord (and any Fee Mortgagee, as hereinafter defined in Section 57(c) below),
in the manner hereinafter provided for the giving of notice, of the execution of
such Leasehold Mortgage and the name and place for service of notice upon
Leasehold Mortgagee. Upon such notification of Landlord that Tenant has entered
into a Leasehold Mortgage, Landlord hereby agrees for the benefit of such
Leasehold Mortgagee, and upon written request by Tenant, to execute and deliver
to Tenant and Leasehold Mortgagee: (i ) the "Landlord's Agreement" containing
terms substantially identical to the terms of the document so entitled attached
hereto and made a part hereof as Exhibit "H", and (ii) the "Landlord's Waiver"
containing terms substantially identical to the terms of the document so
entitled attached hereto and made a part hereof as Exhibit "I". Landlord further
agrees that it will comply with all of the covenants and obligations contained
in said documents.
Landlord and Tenant agree that so long as a Leasehold Mortgage has a
first lien priority position on the leasehold estate created by this Lease and
Tenant's interest in the demised premises, then notwithstanding anything to the
contrary contained in this Lease, Landlord agrees to the following:
41
(c) Tenant Breach. Landlord agrees that in the event of a default,
act or omission by Tenant under the Lease that would give Landlord the right
(whether immediately, after the lapse of a period of time, after notice or
otherwise), to cancel or terminate the Lease or exercise any of its other rights
or remedies under the Lease, including, without limitation, its right to obtain
possession of the demised premises, Landlord shall not exercise such right
unless and until (i) Landlord has given written notice to Leasehold Mortgagee of
such default, act or omission, (ii) Leasehold Mortgagee has received such notice
of such default, act or omission and (iii) Leasehold Mortgagee has failed to
cure or remedy the default, act or omission within thirty (30) days after the
expiration of Tenant's cure period (the "Cure Period") set forth in this Lease
or, if such default, act or omission is not reasonably capable of being remedied
by Leasehold Mortgagee within the Cure Period, until a reasonable period for
remedying such default, act or omission shall have elapsed following the giving
of such notice and following the time when Leasehold Mortgagee shall have become
entitled under the Leasehold Mortgage to remedy the same (which reasonable
period shall in no event be less than the period to which Tenant would be
entitled under the Lease or otherwise, after similar notice, to effect such
remedy), provided in such instance that Leasehold Mortgagee shall with due
diligence give Landlord written notice of Leasehold Mortgagee's intention to,
and shall thereafter commence and continue to, remedy such default, act or
omission. In addition, if Leasehold Mortgagee cannot reasonably remedy a
default, act or omission of Tenant until after Leasehold Mortgagee obtains
possession of the demised premises, Landlord may not terminate or cancel the
Lease or obtain possession of the demised premises by reason of such default,
act or omission until the expiration of a reasonable period necessary for the
remedy after Leasehold Mortgagee secures possession of the demised premises.
Notwithstanding the foregoing, Leasehold Mortgagee shall have no obligation
hereunder to remedy any such default, act or omission. Furthermore, Leasehold
Mortgagee shall have no obligation to cure any default or other obligation of
Tenant not reasonably susceptible of being cured by Leasehold Mortgagee, and all
of such non-curable defaults shall be deemed waived by the Landlord as to
Leasehold Mortgagee, any Successor-Tenant (as hereinafter defined in
subparagraph (b) below) and all other parties, except that such waiver shall not
release Tenant from any of Tenant's liability to Landlord which arises out of
such non-curable defaults.
(d) Transfer of Tenant's Rights. If Leasehold Mortgagee (or its
nominee or designee) shall succeed to the rights of Tenant under the Lease
through possession or foreclosure action, delivery of a deed (or assignment of
the Lease in lieu of foreclosure), or otherwise, or another person purchases the
leasehold estate in and to the demised premises upon or following foreclosure of
the Leasehold
42
Mortgage (or assignment of the Lease in lieu of foreclosure), then,
notwithstanding the terms of the Lease, at the request of Leasehold Mortgagee
(or its nominee or designee) or such purchaser (Leasehold Mortgagee, its
nominees and designees, and such purchaser, each being a "SUCCESSOR-TENANT"),
Landlord shall recognize Successor-Tenant as Landlord's tenant under the Lease
and shall promptly execute and deliver any instrument that Successor-Tenant may
reasonably request to evidence such recognition as tenant under the Lease.
Furthermore, the Lease shall continue in full force and effect as, or as if it
were, a direct lease between Successor-Tenant and Landlord, upon all terms,
conditions and covenants as are set forth in the Lease, except that
Successor-Tenant shall not be:
(i) liable for any previous act or omission of Tenant under the
Lease;
(ii) subject to any offset, defense or counterclaim which shall
have theretofore accrued to Landlord against Tenant; and
(iii) bound by any modification of the Lease unless such
modification shall have been expressly approved in writing by
Leasehold Mortgagee (it being understood and agreed that
Leasehold Mortgagee shall not unreasonably withhold its
consent to any routine modifications of the Lease, provided
such modifications do not (w) conflict with the terms and
conditions of any of the Loan Documents, as such term is
defined in the Leasehold Mortgage, (x) affect Leasehold
Mortgagee's security interest in the Lease, (y) impair the
financeability of the Lease or (z) impair the value of the
Lease as collateral to Leasehold Mortgagee).
(e) Termination of Lease. In the case of termination of the Lease
by reason of any default or for any other reason (including, but not limited to,
rejection of the Lease in a bankruptcy proceeding), Landlord shall give prompt
notice thereof to Leasehold Mortgagee. Landlord, on written request of Leasehold
Mortgagee made any time within thirty (30) days after the giving of such notice
by Landlord, shall promptly execute and deliver a new lease (the "NEW LEASE") of
the demised premises to the Successor-Tenant for the remainder of the term of
the Lease upon all the covenants, conditions, limitations and agreements
contained in the Lease, provided that if such Successor-Tenant receives timely
notice of Tenant's default as required herein, such Successor-Tenant (i) shall
pay to Landlord, simultaneously with the delivery of such new lease, all unpaid
rental due under the Lease, and (ii) shall cure all defaults existing under the
Lease which are reasonably susceptible of being cured by Successor-Tenant.
(f) Successor-Tenant Rights. If a Successor-Tenant acquires the
leasehold estate to the demised premises as contemplated by subparagraphs (d) or
(e) above, then from and after such acquisition, the Lease or the New Lease (as
the case may be) shall be modified as follows:
(i) The Successor-Tenant (and each subsequent tenant under the
Lease or the New Lease) shall be entitled to assign its
interest in the Lease or the New Lease or sublease the demised
premises in whole or in parts without restriction, subject to
the use limitation
43
described in clause (ii) below. Without limiting the
generality of the foregoing, neither Landlord nor any other
party shall have (x) the right to approve or reject any such
assignment or subletting (subject to the use limitation
described in clause (ii) below), (y) the right to recapture
the demised premises (or any portion thereof) or terminate the
Lease in connection with any such assignment or subletting, or
(z) the right to receive all or any of the profits or proceeds
from such assignment or subletting; and
(ii) The Successor-Tenant (and each subsequent tenant under the
Lease or the New Lease) shall be entitled to use the demised
premises for any use, provided that such use does not violate
applicable law or the terms of any exclusive which then
benefits another tenant of the Center.
(g) Limitation on Liability. In the event that Successor-Tenant
shall acquire title to the leasehold estate of the demised premises,
Successor-Tenant shall have no obligation, nor incur any liability, beyond
Successor-Tenant's then interest, if any, in the demised premises, and Landlord
shall look exclusively to such interest, if any, of Successor-Tenant in the
demised premises for the payment and discharge of any obligations imposed upon
Successor-Tenant hereunder or under the Lease. Landlord agrees that with respect
to any money judgment which may be obtained or secured by Landlord against
Successor-Tenant, Landlord shall look solely to the estate or interest owned by
Successor-Tenant in the demised premises, and Landlord will not collect or
attempt to collect any such judgment out of any other assets of
Successor-Tenant. Successor-Tenant shall not become liable under the Lease
unless and until such time as it becomes the owner of the leasehold estate
created by the Lease, and following the transfer of such leasehold estate, the
Successor-Tenant shall be released from all liabilities under the Lease which
are assumed by the transferee of such leasehold estate.
(h) Amendment to Lease. Landlord agrees that the Lease cannot be
cancelled, surrendered, amended or modified without the prior written consent of
Leasehold Mortgagee, provided that Leasehold Mortgagee will not unreasonably
withhold its consent to routine amendments or modifications of the Lease that do
not (w) conflict with the terms and conditions of any of the Loan Documents, (x)
affect Leasehold Mortgagee's security interest in the Lease, (y) impair the
financeability of the Lease or (z) impair the value of the Lease as collateral
to Leasehold Mortgagee.
(i) Insurance Proceeds. Landlord agrees that, notwithstanding
anything to the contrary contained in the Lease, all insurance proceeds and
condemnation awards with respect to the demised premises shall be deposited with
Leasehold Mortgagee and same shall be applied and disbursed solely in accordance
with the terms and provisions set forth in the Leasehold Mortgage. Landlord
further agrees that Leasehold Mortgagee may participate in any suits or
proceedings relating to such insurance or condemnation proceeds, causes of
action, claims, awards or recoveries and Leasehold Mortgagee is
44
authorized to adjust any loss covered by insurance or any condemnation claim and
to settle or compromise any claim or action in connection therewith.
(j) Modification of Leasehold Mortgage. Landlord acknowledges and
approves the Leasehold Mortgage and the amounts secured thereby and the terms
and provisions thereof, as the same may be modified or amended, from time to
time.
(k) Fee Mortgagee. In the event that, at any time prior to the
execution of this Lease and the recordation of a memorandum of lease hereof,
Landlord has mortgaged or otherwise encumbered the fee title to the demised
premises, Landlord shall use reasonable best efforts to deliver to Tenant a
recognition and non-disturbance agreement containing terms substantially
identical to the terms of the document so entitled attached hereto and made a
part hereof as Exhibit "J", duly executed by the holder of any such mortgage or
encumbrance (the "Fee Mortgagee").
(l) Ground Lessor. Landlord shall use reasonable best efforts to
deliver to Tenant a recognition and non-disturbance agreement containing terms
substantially identical to the terms of the document so entitled attached hereto
and made a part hereof as Exhibit "K" and incorporated herein by this reference,
duly executed by Master Landlord.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Lease the day
and year first above written.
SIGNED AND ACKNOWLEDGED
IN THE PRESENCE OF: LANDLORD:
JUBILEE LIMITED PARTNERSHIP,
an Ohio limited partnership,
its Member
By: Schottenstein Professional Asset
Management Corporation, its general
partner
__________________________________
Print Name: ______________________ By: __________________________________
__________________________________ Its:
Print Name: ______________________
TENANT:
SHONAC CORPORATION,
an Ohio corporation
__________________________________ By: __________________________________
Print Name: ______________________
Its:
__________________________________
Print Name: ______________________
STATE OF OHIO :
: SS.
COUNTY OF FRANKLIN :
The foregoing instrument was acknowledged before me this ____ day of
_________, 2002, by __________________________ of Schottenstein Professional
Asset Management Corporation, General Partner of Jubilee Limited Partnership, an
Ohio limited partnership, for and on behalf of said Ohio limited liability
company.
__________________________________
Notary Public
STATE OF OHIO :
: SS.
COUNTY OF FRANKLIN :
The foregoing instrument was acknowledged before me this ____ day of
_____________, 2002, by ___________________________________ of Shonac
Corporation, an Ohio corporation, for and on behalf of said corporation.
__________________________________
Notary Public
46
EXHIBIT "B"
LANDLORD'S WORK
EXHIBIT "C"
TENANT'S WORK
EXHIBIT "H"
LANDLORD'S AGREEMENT
THIS LANDLORD'S AGREEMENT (THIS "AGREEMENT") is made as of
this ____ day of ______________, 2002, by and among CERBERUS PARTNERS, L.P., a
Delaware limited partnership, as collateral agent for the Term Loan Lenders, the
Revolving Credit Lenders and the Convertible Lenders (each as defined in
Schedule A hereto) (in such capacity, together with its successors and
---------- assigns, "Mortgagee"), [Landlord], a __________________,
("LANDLORD"), and [Tenant], a _________________________ ("TENANT"). ---------
W I T N E S S E T H:
WHEREAS, Tenant is the tenant and Landlord is the landlord
under that certain lease more fully described on Schedule B attached hereto (as
same may have or hereafter be amended, the "LEASE");
WHEREAS, the Lease demises to Tenant, as tenant, certain
premises more particularly described therein (the "PREMISES") located on certain
land described on Schedule C attached hereto (the "CENTER");
WHEREAS, the Term Loan Lenders, the Revolving Credit Lenders
and the Convertible Lenders have extended or are about to extend credit (the
"LOAN") to Tenant and certain affiliates of Tenant pursuant to the loan
agreements described on Schedule A hereto;
WHEREAS, the Loan shall be secured by, among other things,
leasehold mortgages (collectively, the "LEASEHOLD MORTGAGE"; the Leasehold
Mortgage, together with all amendments, renewals, increases, modifications,
replacements, substitutions, extensions, spreaders and consolidations thereof
and all re-advances thereunder and additions thereto, is referred to as the
"MORTGAGE") encumbering, among other things, Tenant's interest in the Premises;
WHEREAS, Mortgagee has been engaged as a collateral agent with
respect to the Lease and the Mortgage, among other things, by the Term Loan
Lenders, the Revolving Credit Lenders and the Convertible Lenders;
WHEREAS, Mortgagee and Landlord desire to confirm their
understanding and agreement with respect to the Lease and the Mortgage; and
WHEREAS, Tenant is executing this Agreement at the request of
Landlord and Mortgagee to confirm Tenant's acknowledgment of, and agreement
with, the provisions, terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, and of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Mortgagee, Landlord and Tenant hereby agree and covenant as
follows:
1. (A) Anything in the Lease to the contrary
notwithstanding, Landlord agrees that in the event of a default, act or omission
by Tenant under the Lease that would give Landlord the right (whether
immediately, after the lapse of a period of time, after notice or otherwise), to
cancel or terminate the Lease or exercise any of its other rights or remedies
under the Lease, including, without limitation, its right to obtain possession
of the Premises, Landlord shall not exercise such right unless and until (i)
Landlord has given written notice to Mortgagee of such default, act or omission,
(ii) Mortgagee has received such notice of such default, act or omission and
(iii) Mortgagee has failed to cure or remedy the default, act or omission within
thirty (30) days after the expiration of Tenant's cure period (the "Cure
Period") set forth in the Lease or, if such default, act or omission is not
reasonably capable of being remedied by Mortgagee within the Cure Period, until
a reasonable period for remedying such default, act or omission shall have
elapsed following the giving of such notice and following the time when
Mortgagee shall have become entitled under the Mortgage to remedy the same
(which reasonable period shall in no event be less than the period to which
Tenant would be entitled under the Lease or otherwise, after similar notice, to
effect such remedy), provided in such instance that Mortgagee shall with due
diligence give Landlord written notice of Mortgagee's intention to, and shall
thereafter commence and continue to, remedy such default, act or omission. In
addition, if Mortgagee cannot reasonably remedy a default, act or omission of
Tenant until after Mortgagee obtains possession of the Premises, Landlord may
not terminate or cancel the Lease or obtain possession of the Premises by reason
of such default, act or omission until the expiration of a reasonable period
necessary for the remedy after Mortgagee secures possession of the Premises.
Notwithstanding the foregoing, Mortgagee shall have no obligation hereunder to
remedy any such default, act or omission. Furthermore, Mortgagee shall have no
obligation to cure any default or other obligation of Tenant not reasonably
susceptible of being cured by Mortgagee, and all of such non-curable defaults
shall be deemed waived by the Landlord as to Mortgagee, any Successor-Tenant (as
hereinafter defined) and all other parties, except that such waiver shall not
release Tenant from any of Tenant's liability to Landlord which arises out of
such non-curable defaults.
(B) If Mortgagee (or its nominee or designee) shall
succeed to the rights of Tenant under the Lease through possession or
foreclosure action, delivery of a deed (or assignment of the Lease in lieu of
foreclosure), or otherwise, or another person purchases the leasehold estate in
and to the Premises upon or following foreclosure of the Mortgage (or assignment
of the Lease in lieu of foreclosure), then, notwithstanding the terms of the
Lease, at the request of Mortgagee (or its nominee or designee) or such
purchaser (Mortgagee, its nominees and designees, and such purchaser, each being
a "SUCCESSOR-TENANT"), Landlord shall recognize Successor-Tenant as Landlord's
tenant under the Lease and shall promptly execute and deliver any instrument
that Successor-Tenant may reasonably request to evidence such recognition as
tenant under the Lease. Furthermore, the Lease shall continue in full force and
effect as, or as if it were, a direct lease between
1
Successor-Tenant and Landlord, upon all terms, conditions and covenants as are
set forth in the Lease, except that Successor-Tenant shall not be:
(i) liable for any previous act or omission of
Tenant under the Lease;
(ii) subject to any offset, defense or
counterclaim which shall have theretofore accrued to Landlord against Tenant;
and
(iii) bound by any modification of the Lease
unless such modification shall have been expressly approved in writing by
Mortgagee (it being understood and agreed that Mortgagee shall not unreasonably
withhold its consent to any routine modifications of the Lease, provided such
modifications do not (w) conflict with the terms and conditions of any of the
Loan Documents, as such term is defined in the Leasehold Mortgage, (x) affect
Mortgagee's security interest in the Lease, (y) impair the financeability of the
Lease or (z) impair the value of the Lease as collateral to Mortgagee).
(C) In the case of termination of the Lease by reason of
any default or for any other reason (including, but not limited to, rejection of
the Lease in a bankruptcy proceeding), Landlord shall give prompt notice thereof
to Mortgagee. Landlord, on written request of Mortgagee made any time within
thirty (30) days after the giving of such notice by Landlord, shall promptly
execute and deliver a new lease (the "NEW LEASE") of the Premises to the
Successor-Tenant for the remainder of the term of the Lease upon all the
covenants, conditions, limitations and agreements contained in the Lease,
provided that if such Successor-Tenant receives timely notice of Tenant's
default as required herein, such Successor-Tenant (i) shall pay to Landlord,
simultaneously with the delivery of such new lease, all unpaid rental due under
the Lease, and (ii) shall cure all defaults existing under the Lease which are
reasonably susceptible of being cured by Successor-Tenant.
(D) If a Successor-Tenant acquires the leasehold estate
to the Premises as contemplated by paragraphs 1(B) or 1(C) of this Agreement,
then from and after such acquisition, the Lease or the New Lease (as the case
may be) shall be modified as follows:
(i) The Successor-Tenant (and each subsequent tenant
under the Lease or the New Lease) shall be entitled to assign its interest in
the Lease or the New Lease or sublease the Premises in whole or in parts without
restriction, subject to the use limitation described in clause (ii) below.
Without limiting the generality of the foregoing, neither Landlord nor any other
party shall have (x) the right to approve or reject any such assignment or
subletting (subject to the use limitation described in clause (ii) below), (y)
the right to recapture the Premises (or any portion thereof) or terminate the
Lease in connection with any such assignment or subletting, or (z) the right to
receive all or any of the profits or proceeds from such assignment or
subletting; and
(ii) The Successor-Tenant (and each subsequent tenant
under the Lease or the New Lease) shall be entitled to use the Premises for any
use, provided that such use does not violate applicable law or the terms of any
exclusive which then benefits another tenant of the Center.
2. Anything herein or in the Lease to the contrary
notwithstanding, in the event that Successor-Tenant shall acquire title to the
leasehold estate of the Premises, Successor-Tenant shall have no obligation, nor
incur any liability, beyond Successor-Tenant's then interest, if any, in the
Premises, and Landlord shall look exclusively to such interest, if any, of
Successor-Tenant in the Premises for the payment and discharge of any
obligations imposed upon Successor-Tenant hereunder or under the Lease. Landlord
agrees that with respect to any money judgment which may be obtained or secured
by Landlord against Successor-Tenant, Landlord shall look solely to the estate
or interest owned by Successor-Tenant in the Premises, and Landlord will not
collect or attempt to collect any such judgment out of any other assets of
Successor-Tenant. Successor-Tenant shall not become liable under the Lease
unless and until such time as it becomes the owner of the leasehold estate
created by the Lease, and following the transfer of such leasehold estate, the
Successor-Tenant shall be released from all liabilities under the Lease which
are assumed by the transferee of such leasehold estate.
3. Landlord agrees that, notwithstanding anything to the
contrary contained in the Lease, all insurance proceeds and condemnation awards
with respect to the Premises shall be deposited with Mortgagee and same shall be
applied and disbursed solely in accordance with the terms and provisions set
forth in the Mortgage. Landlord further agrees that Mortgagee may participate in
any suits or proceedings relating to such insurance or condemnation proceeds,
causes of action, claims, awards or recoveries and Mortgagee is authorized to
adjust any loss covered by insurance or any condemnation claim and to settle or
compromise any claim or action in connection therewith.
4. Landlord agrees that the Lease cannot be cancelled,
surrendered, amended or modified without the prior written consent of Mortgagee,
provided that Mortgagee will not unreasonably withhold its consent to routine
amendments or modifications of the Lease that do not (w) conflict with the terms
and conditions of any of the Loan Documents, (x) affect Mortgagee's security
interest in the Lease, (y) impair the financeability of the Lease or (z) impair
the value of the Lease as collateral to Mortgagee.
5. Landlord agrees that, notwithstanding the terms of
the Lease, Landlord acknowledges and approves the Leasehold Mortgage and the
amounts secured thereby and the terms and provisions thereof, as the same may be
modified or amended, from time to time.
6. Landlord represents and warrants as follows:
(a) Landlord is the owner of the fee simple estate in the Premises
and is the landlord under the Lease.
(b) Tenant is the tenant under the Lease and to the best of
Landlord's knowledge is the owner of the leasehold estate in
the Premises.
2
(c) The Lease is in full force and effect in accordance with its
terms and has not been further assigned, supplemented,
modified or otherwise amended except as set forth in Schedule
D attached hereto.
(d) To the best of Landlord's knowledge, each of the obligations
on Tenant's part to be performed to date under the Lease or
under any other agreement described in Schedule D attached
hereto have been performed, except as set forth in Schedule D
attached hereto.
(e) To the best of Landlord's knowledge, there are no offsets,
counterclaims, defenses, deductions or credits whatsoever with
respect to the Lease, or any amounts owing under any other
agreement described in Schedule D attached hereto, except as
set forth in Schedule D attached hereto.
(f) None of the matters set forth in Schedule D attached hereto
are untrue or incorrect and, without limitation of the
foregoing, there are, with respect to the Lease, no options to
renew or extend, and no security deposits or prepaid rent or
liens, except as set forth therein.
(g) Except as set forth in Schedule D attached hereto, there do
not exist any other agreements (including Subordination,
Non-Disturbance and Attornment Agreements) concerning the
Premises, whether oral or written, between Landlord and Tenant
(or their respective predecessors or successors) under the
Lease.
(h) As of the date hereof, no basic rent or additional rent is due
from Tenant under the Lease, except as set forth in Schedule D
attached hereto.
(i) No third party has an option or preferential right to purchase
all or any part of the Premises.
(j) Landlord has full power and authority to enter into this
Agreement, and perform all of its obligations hereunder, and
neither the execution and delivery of this Agreement by
Landlord nor the consummation of the transactions contemplated
hereby will conflict with, result in a breach or termination
of, or constitute a default under, the terms of any agreement
to which Landlord is a party or by which it is bound.
(k) Landlord has not received written notice of any pending
eminent domain proceedings or other governmental actions or
any judicial actions of any kind against the Landlord's
interest in the Premises.
(l) Landlord has not received written notice that it is in
violation of any governmental law or regulation applicable to
its interest in the Premises and its operation thereon,
including, without limitation, any environmental laws or the
Americans with Disabilities Act, and has no reason to believe
that there are grounds for any claim or such violation.
7. Any notice which may be given hereunder shall be
personally delivered or delivered via a nationally recognized overnight courier
(such as Federal Express), properly addressed to the party to receive such
notice at the address of such party set forth below.
To Mortgagee: Cerberus Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx
with a copy to: Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx, Esq.
To Landlord: _____________________________
_____________________________
_____________________________
Each notice which shall be personally delivered or mailed in the manner
described shall be deemed sufficiently given, served, sent, received or
delivered for all purposes on the first business day following the day on which
the notice is delivered to the addressee (with the affidavit of messenger being
deemed conclusive evidence of such delivery) or on the first business day
following the day on which delivery of such notice is refused by the addressee
upon presentation. Any party may, from time to time, designate a different
and/or additional address and/or person, to whom such notices shall be sent, by
providing notice to the other parties in the manner set forth above. Notices by
a party may be given by an attorney on behalf of that party.
8. This Agreement may be modified only by an agreement
in writing signed by the parties hereto, or their respective
successors-in-interest. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, and their respective successors and assigns.
The term "Mortgagee" shall mean the then holder of the Mortgage. The term
"Landlord" shall mean the then holder of the landlord's interest in the Lease.
The term "Tenant" shall mean the then holder of
3
the tenant's interest in the Lease. The term "person" shall mean an individual,
joint venture, corporation, partnership, trust, unincorporated association or
other entity. All references herein to the Lease shall mean the Lease as
modified by this Agreement and to any amendments or modifications to the Lease
which are consented to in writing by Mortgagee (it being understood and agreed
that, as set forth above, Mortgagee will not unreasonably withhold its consent
to routine amendments or modifications of the Lease that do not (w) conflict
with the terms and conditions of any of the Loan Documents, (x) affect
Mortgagee's security interest in the Lease, (y) impair the financeability of the
Lease or (z) impair the value of the Lease as collateral to Mortgagee). Any
inconsistency between the Lease and the provisions of this Agreement shall be
resolved, to the extent of such inconsistency, in favor of this Agreement.
9. EACH OF TENANT, LANDLORD AND MORTGAGEE HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
10. This Agreement shall be governed by and construed in
accordance with the laws of the state in which the Premises are located.
11. This Agreement may be executed in any number of
counterparts, each of which shall be effective only upon delivery and thereafter
shall be deemed an original, and all of which shall be taken to be one and the
same instrument, for the same effect as if all parties hereto had signed the
same signature page.
12. If any provision under this Agreement or the
application thereof to any entity, person or circumstance shall be invalid,
illegal or unenforceable to any extent, the remainder of this Agreement and the
application of the provisions hereof to other entities, persons or circumstances
shall not be effected thereby and shall be enforced to the fullest extent
permitted by law.
[END OF TEXT]
4
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
LANDLORD: ____________________________,
a___________________________
By:_________________________
Name:
Title:
MORTGAGEE: CERBERUS PARTNERS, L.P., a Delaware
limited partnership, as collateral
agent
By:__________________________
Name:_____________________
Title:____________________
AGREED AND CONSENTED TO BY TENANT:
SHONAC CORPORATION
an Ohio corporation
By:___________________________
Name:
Title:
STATE OF _____________________ :
: ss.
COUNTY OF ____________________ :
The foregoing instrument was acknowledged before me this _______ day of
__________________________, 20__, by ________________________,
___________________ of __________________________________________, a(n)
_____________________, for and on behalf of said ___________________________.
_____________________________
Notary Public
STATE OF ____________________ :
: ss.
COUNTY OF ___________________ :
The foregoing instrument was acknowledged before me this _______ day of
__________________________, 200__, by ________________________,
___________________ of Cerberus Partners, L.P., a Delaware limited partnership,
for and on behalf of said limited partnership.
_____________________________
Notary Public
STATE OF OHIO :
: ss.
COUNTY OF FRANKLIN :
The foregoing instrument was acknowledged before me this _______ day of
__________________________, 20__, by ____________________ of Shonac Corporation,
an Ohio corporation, for and on behalf of said corporation.
_____________________________
Notary Public
5
SCHEDULE A
Description of Loan Agreements
1. Financing Agreement dated as of June 11, 2002, among Tenant,
Value City Department Stores, Inc., an Ohio corporation which is the parent of
Tenant or the Tenant (the "PARENT"), and certain other affiliates of Tenant
named therein as borrowers, the subsidiaries of the Parent named therein as
guarantors, the financial institutions from time to time party thereto
(collectively, the "TERM LOAN LENDERS"), and Cerberus Partners, L.P. as agent
for the ratable benefit of the Term Loan Lenders.
2. Loan and Security Agreement dated as of June 11, 2002, among
Tenant, the Parent and certain other affiliates of Tenant named therein as
borrowers, the subsidiaries of the Parent named therein as guarantors, the
financial institutions from time to time party thereto (collectively, the
"REVOLVING CREDIT LENDERS"), and National City Commercial Finance, Inc. and
Fleet Retail Finance Inc. as collateral agents for the ratable benefit of the
Revolving Credit Lenders.
3. Amended and Restated Convertible Loan Agreement dated as of
June 11, 2002, among Parent, which is named therein as the borrower, Tenant and
certain other affiliates of Tenant named therein as guarantors, the financial
institutions from time to time party thereto (collectively, the "CONVERTIBLE
LENDERS"), and Cerberus Partners, L.P. as agent for the ratable benefit of the
Convertible Lenders, as amended by Amendment No. 1 to the Amended and Restated
Convertible Loan Agreement dated as of June 11, 2002, among such parties.
SCHEDULE B
Description of the Lease
SCHEDULE C
Description of the Land
SCHEDULE D
Exceptions to Landlord's Representations and Warranties
EXHIBIT "I"
--------------------------------------------------------------------------------
LANDLORD'S WAIVER
--------------------------------------------------------------------------------
_______________, 2002
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, ___________________________ (the "LANDLORD")
executes this waiver in favor of (a) National City Commercial Finance, Inc., an
Ohio corporation with offices at 0000 X. Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000,
and Fleet Retail Finance, Inc., a Delaware corporation with offices at 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, as collateral agents (in such capacity,
herein the "COLLATERAL AGENTS") for the ratable benefit of the Revolving Credit
Lenders (as hereinafter defined), (b) Cerberus Partners, L.P., a Delaware
limited partnership with offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
as agent (in such capacity, herein the "TERM LOAN AGENT") for the ratable
benefit of the Term Loan Lenders (as hereinafter defined) and (c) Cerberus
Partners, L.P., a Delaware limited partnership with offices at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, as agent (in such capacity, herein the "SENIOR
CONVERTIBLE AGENT") for the ratable benefit of the Senior Convertible Lenders
(as hereinafter defined). The Collateral Agents, the Term Loan Agent and the
Senior Convertible Agent are sometimes referred to herein, collectively, as the
"AGENTS".
WITNESSETH:
WHEREAS, the Landlord owns real property located at ________________
(the "LEASED PREMISES"), which real property the Landlord leases to
_________________ , a _______________corporation/limited liability
partnership/partnership with offices at _____________________________ (the
"TENANT").
WHEREAS, pursuant to the terms, and subject to the conditions, of that
certain Loan and Security Agreement dated as of June 11, 2002 (as such may be
amended, modified, supplemented or restated hereafter, the "REVOLVING CREDIT
LOAN AGREEMENT") among (i) the Tenant, (ii) the other Borrowers named therein
(collectively, with the Tenant, the "REVOLVING CREDIT BORROWERS"), (iii) the
Revolving Credit Lenders named therein (the "REVOLVING CREDIT LENDERS"), (iv)
National City Commercial Finance, Inc., as Administrative Agent for the
Revolving Credit Lenders and as Swing Line Lender, (v) the Collateral Agents,
and (vi) National City Bank, as Issuer, the Revolving Credit Lenders have been
requested to establish a revolving credit facility in favor of the Tenant and
the other Revolving Credit Borrowers.
WHEREAS, pursuant to the terms, and subject to the conditions, of that
certain Financing Agreement dated as of June 11, 2002 (as such may be amended,
modified, supplemented or restated hereafter, the "TERM LOAN AGREEMENT"), among
(i) the Tenant, (ii) the other Borrowers named therein (collectively, with the
Tenant, the "TERM LOAN BORROWERS"), (iii) certain subsidiaries of the Term Loan
Borrowers named therein as guarantors, (iv) the financial institutions from time
to time party thereto (collectively, the "TERM LOAN LENDERS"), and (v) the Term
Loan Agent, the Term Loan Lenders have been requested to establish a term loan
facility in favor of the Tenant and the other Term Loan Borrowers.
WHEREAS, pursuant to the terms, and subject to the conditions, of that
certain Amended and Restated Senior Convertible Loan Agreement dated as of June
11, 2002 (as such may be amended, modified, supplemented or restated hereafter,
the "SENIOR CONVERTIBLE LOAN AGREEMENT"), among (i) Value City Department
Stores, Inc., an Ohio corporation with offices at 0000 Xxxxxxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000-0000 (the "SENIOR CONVERTIBLE BORROWER"), (ii) the
subsidiaries of the Senior Convertible Borrower named therein as guarantors,
(iii) the financial institutions from time to time party thereto (collectively,
the "SENIOR CONVERTIBLE LENDERS"), and (iv) the Senior Convertible Agent, the
Senior Convertible Lenders have been requested to establish a senior convertible
loan facility in favor of the Senior Convertible Borrower.
WHEREAS, loans and financial accommodations under the revolving credit
facility, the term loan facility and the senior convertible facility will be
secured by all of the Tenant's present and after acquired assets including,
among other things, the Tenant's inventory and equipment (the "COLLATERAL")
located and to be located upon the Leased Premises.
WHEREAS, in order to induce the Revolving Credit Lenders to establish
the revolving credit facility, the Term Loan Lenders to establish the term loan
facility, and the Senior Convertible Lenders to establish the senior convertible
facility, the Landlord hereby represents, warrants, covenants and agrees as
follows:
1. The Tenant is not in default under the terms of its lease of
the Leased Premises.
2. The Landlord hereby waives any statutory or other lien of the
Landlord against the Collateral.
3. In the event of the exercise by any Agent of its rights upon
default with respect to the Collateral, such Agent shall have
reasonable time in which to repossess the Collateral from the
Leased Premises. In those circumstances, the Landlord will (a)
cooperate with such Agent in gaining access to the Leased
Premises for the purpose of repossessing said Collateral or
(b) if requested by such Agent, permit the Agent, or its
agents or nominees, to dispose of the Collateral on the Leased
Premises in a manner reasonably designed to minimize any
interference with any other of Landlord's tenants.
4. To the extent not paid or prepaid by the Tenant, any Agent
occupying the Leased Premises shall pay the Landlord a
reasonable sum for its use and occupancy of the Leased
Premises (but in no event in excess of the base rent reserved
under the lease between the Landlord and the Tenant) from the
date on which such Agent shall have taken possession of the
Collateral on the Leased Premises until the date of the
Agent's vacating the Leased Premises, it being understood,
however, that the Agent shall not, thereby, have assumed any
of the obligations of the Tenant to the Landlord.
5. Prior to the Landlord's taking any action to terminate its
lease with the Tenant or to evict the Tenant from the Leased
Premises for breach of the lease, the Landlord shall give each
of the Agents not less than thirty (30) days written notice of
such action at the address set forth above, and a reasonable
opportunity to preserve, protect, liquidate, or remove any
Collateral on the Leased Premises and, if any Agent so elects,
to cure such breach of the lease.
This Agreement shall inure to the benefit of the Agents, each Revolving Credit
Lender, each Term Loan Lender and each Senior Convertible Lender, and their
respective successors and assigns, and shall be binding upon the Landlord, its
heirs, assigns, representatives, and successors.
Dated this the ____ day of ____________, 2002
LANDLORD
By:____________________________________
Title:_________________________________
Date:__________________________________
STATE OF________________
COUNTY OF_______________
The foregoing Agreement was subscribed, sworn to and acknowledged before me this
____ day of ____________, 2002 by ___________________.
________________________________
Print Name
Notary Public
My Commission Expires ____________
