EXHIBIT 10.14
FORM OF LEASE
THIS LEASE ("Lease") is made as of this ___ day of October, 2004,
between AMSDELL AND AMSDELL, an Ohio general partnership ("Landlord") and
U-STORE-IT MINI WAREHOUSE CO., an Ohio corporation ("Tenant").
ARTICLE I
PREMISES, TERM AND USE
1.1 Premises. In consideration of the rents, covenants and agreements
herein contained, Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the following described premises ("Premises") consisting of a total of
approximately Nineteen Thousand Two Hundred Fifty Nine (19,259) square feet of
space and being further described as follows:
(a) Approximately Fifteen Thousand Two Hundred Fifty Nine (15,259)
square feet of space known as Suites "105, 115, 130 and 300" located in
a building known as The Parkview Building (the "Parkview Building"),
0000 Xxxxx Xxxx, Xxxxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxx, Xxxx 00000. As
used herein, "Landlord's Property" means the real property described on
Exhibit A and all improvements now or hereafter constructed thereon.
(b) Approximately Four Thousand (4,000) square feet of space known as
Suites "L & M" located in a building known as Building IV ("Building
IV"), 0000 Xxxxx Xxxx, Xxxxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxx, Xxxx 00000.
The Parkview Building and Building IV are hereinafter sometimes
referred to as the "Building".
1.2 Common Areas. Landlord hereby grants to Tenant a non-exclusive
license to use, in common with all others to whom Landlord has or may hereafter
grant such license, the Common Areas (as hereinafter defined) located on
Landlord's Property. "Common Areas" means the parking areas, roadways,
pedestrian sidewalks, delivery areas, landscaped areas and all other areas or
improvements designated by Landlord, from time to time, for the common use of
the tenants or occupants of Landlord's Property. Tenant shall keep the Common
Areas free and clear of litter, trash and debris resulting from or attributable
to Tenant's operation from the Premises and shall cause its employees to park
only in the portion of the Common Areas specifically designated by Landlord for
parking. Parking shall not be permitted on Landlord's Property for more than
twenty-four (24) consecutive hours or on any public or private street adjacent
to Landlord's Property. Tenant shall not obstruct, interfere with or impede the
use of the Common Areas. Landlord reserves the right, with respect to the Common
Areas and Landlord's Property, to (a) establish rules and regulations for the
use thereof; (b) temporarily close all or any portion thereof as Landlord deems
necessary to prevent the dedication thereof or the accrual of any rights to any
person or to the public therein; (c) increase, diminish, change or reconfigure
the layout of the Common Areas and to rent portions thereof; (d) install, place
upon or affix to the roof over the Premises and the exterior walls of the
Premises, such equipment, signs, displays, antennas and other objects or
structures of any kind as Landlord may desire; and (e) increase, decrease,
reconfigure and/or add to Landlord's Property. Landlord shall maintain the
Common Areas in good condition and repair and reasonably clear of snow and
debris. Nothing herein contained shall be construed as requiring Landlord to
remove any debris, ice or snow from the sidewalks adjoining the Premises, which
shall be the responsibility of Tenant.
1.3 Term. Subject to Section 3.2(a) hereof, the term of this Lease
shall be ten (10) years and shall commence on the date hereof ("Commencement
Date") and ending on September 30, 2014.
1.4 Option to Extend. Provided Tenant is not in default hereunder at
the time of the exercise of the option to extend and/or at the commencement of
the applicable extension term, as the case may be, Landlord hereby grants Tenant
one (1) option to extend this Lease for ten (10) years upon the same terms and
conditions contained herein, except that there shall be no further options to
extend this Lease and Fixed Minimum Rent (as hereinafter defined) shall be
established pursuant to Section 2.1(b) hereof. To exercise an option to extend,
Tenant shall give Landlord written notice of Tenant's election to do so at least
six (6) months prior to the expiration of the original term.
1.5 Use. Tenant shall use the Premises for only the following use and
purpose: general office purposes. Tenant acknowledges that Tenant has determined
and verified that such use is permitted by applicable zoning and other laws.
Landlord will obtain an occupancy permit from the City of Middleburg Heights for
Tenant's use of the Premises. Tenant shall use and occupy the Premises in a safe
and careful manner, without committing or permitting waste, and Tenant shall, at
Tenant's sole cost and expense, conform to and obey all requirements of the Fire
Underwriters Association and all laws, ordinances, rules, regulations and orders
of any governmental bodies having jurisdiction over the Premises applicable to
the use and occupancy of the Premises and any repairs or work performed on the
Premises by Tenant or at the request of Tenant. If Tenant's activities on the
Premises produce gases, vapors, odors, smoke or residuary material disturbing to
Landlord or other tenants or occupants of Landlord's Property, then upon
Landlord's request, Tenant shall immediately cease such activity or install
ventilating or other equipment sufficient, in Landlord's reasonable judgment, to
eliminate the disturbance. If Tenant's use of the Premises increases the cost of
Landlord's Insurance (as hereinafter defined) with respect to Landlord's
Property or the cost of insurance for any other tenant of Landlord's Property,
then Tenant shall reimburse Landlord or such other tenant, as the case may be,
for such additional cost upon demand. Tenant shall not display or store any
merchandise outside of the Premises or in any way obstruct the sidewalks
adjacent thereto, or burn or place garbage, rubbish, trash, merchandise,
containers or any other items outside of the Premises, except in suitable
containers therefor in the areas designated for rubbish removal by Landlord.
Unless Landlord provides rubbish removal services, in which event Tenant shall
reimburse Landlord for the cost thereof within ten (10) days after demand,
Tenant shall, at its sole cost and expense, provide for the removal of its
rubbish as and when necessary as required to keep the Premises in a clean, safe
and healthy condition, but in any event at least one (1) time per week. If
Tenant fails to provide for the removal of its rubbish, then Landlord may cause
the same to be removed and Tenant shall reimburse Landlord for the cost thereof
immediately upon demand. Tenant will not permit the Premises to be vacant or
abandoned or be used in any way which may be a nuisance, annoyance or
inconvenience or which may result in damage to Landlord or other tenants of
Landlord's Property.
1.6 Hazardous Materials. Tenant shall not cause or permit any Hazardous
Material (as hereinafter defined) to be brought upon, kept or used in or about
the Premises or any other portion of Landlord's Property. "Hazardous Material"
means any substance or waste containing hazardous substances, pollutants or
contaminants as those terms are defined in the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., and
any other substance similarly defined or identified in any other federal, state
or local law, rule or regulation governing the manufacture, import, use,
handling, storage, processing, release or disposal of substances or wastes
deemed hazardous, toxic, dangerous or injurious to public health or to the
environment. Hazardous Material also includes, without limitation, asbestos,
asbestos-containing materials, petroleum or petroleum-based products, lead-based
products, polychlorinated biphenyls (PCB's), infectious wastes and radon.
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ARTICLE II
RENT, OPERATING COSTS, OTHER CHARGES AND SECURITY DEPOSIT
2.1 Fixed Minimum Rent.
(a) Tenant shall pay to Landlord, without deduction, set-off
or demand, as Fixed Minimum Rent ("Fixed Minimum Rent"), the sum of Two Hundred
Thirty Eight Thousand Four Hundred Sixty and 00/100ths Dollars ($238,460.00) per
annum [Nineteen Thousand Eight Hundred Seventy One and 67/100ths Dollars
($19,871.67) per month] from the Commencement Date until the last day of the
original term of this Lease. Monthly installments of Fixed Minimum Rent shall be
payable to Landlord at the address of Landlord set forth in Section 8.11 hereof
or at such other address as Landlord may, from time to time, direct. Each
installment of Fixed Minimum Rent shall be due and payable in advance on the
first day of each month during the term hereof except that the first month's
Fixed Minimum Rent shall be due and payable upon the execution of this Lease by
Tenant. If Tenant occupies the Premises prior to the Commencement Date or for
any partial month, then the Fixed Minimum Rent and all other charges hereunder
for such period of occupancy prior to the Commencement Date or for such partial
month shall be prorated on a daily basis based on a thirty (30) day month.
Monthly installments of Fixed Minimum Rent shall be payable to Landlord
at the address of Landlord set forth in Section 8.11 hereof or at such other
address as Landlord may, from time to time, direct. Each installment of Fixed
Minimum Rent shall be due and payable in advance on the first day of each month
during the term hereof except that the first month's Fixed Minimum Rent shall be
due and payable upon the execution of this Lease by Tenant. If Tenant occupies
the Premises prior to the Commencement Date or for any partial month, then the
Fixed Minimum Rent and all other charges hereunder for such period of occupancy
prior to the Commencement Date or for such partial month shall be prorated on a
daily basis based on a thirty (30) day month.
(b) If Tenant timely exercises an option to extend pursuant to
Section 1.4 hereof, then the Fixed Minimum Rent payable by Tenant during the
renewal term shall be at the then prevailing market rates.
2.2 Common Area Maintenance Charges. The Fixed Minimum Rent payable
hereunder includes Tenant's Proportionate Share (as hereinafter defined) of all
costs and expenses associated with Common Area Maintenance Charges ("C.A.M.")
incurred by Landlord during the calendar year 2004 ("Base Year") in connection
with the ownership, management, maintenance, repair and operation of Landlord's
Property, including, without limitation, a heating, ventilating and
air-conditioning annual service agreement; maintaining, repairing, replacing,
striping and sweeping parking lots, driveways and private roads, loading areas
and easement areas; all electricity, sewer, water and other utility costs in
connection with the Common Areas not separately metered to tenants; sewer and
water usage for the Premises; landscape maintenance and replacement, snow
removal; dumpster service; costs and expenses incurred by Landlord in protesting
Taxes (as hereinafter defined), and all other items reasonably necessary for the
operation or preservation of Landlord's Property in a first-class condition,
including any replacement or structural reserves; the cost of providing the fire
monitoring for the Premises as provided by Silent Security Signal, a Division of
Cleveland Security Patrol; and an administration fee equal to seven and one-half
percent (7.5%) of the foregoing costs. In the event that the Landlord's costs
and expenses associated with C.A.M. exceeds the amount payable during the Base
Year, then, subject to the limitation hereinafter set forth, in such event,
Tenant shall pay to Landlord in equal monthly installments, in advance with
payments of Fixed Minimum Rent, an amount equal to one-twelfth (1/12th) of the
estimated amount of Tenant's Proportionate Share of C.A.M. Notwithstanding the
foregoing, if Landlord's costs and expenses associated with C.A.M. exceed the
amount payable during the Base Year, in no event shall Tenant's
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Proportionate Share of C.A.M. be increased during any Lease Year more than one
percent (1%) per annum.
2.3 Utilities. The Fixed Minimum Rent payable hereunder includes all
electricity, gas and any other utilities furnished to the Premises during the
term hereof. Landlord shall have no liability to Tenant or any other party for
any interruption in utility services or for the failure to furnish same.
Notwithstanding the foregoing, Tenant shall be responsible for the payment of
all electric charges for lights and outlets at the Premises.
2.4 Taxes and Assessments. The Fixed Minimum Rent payable hereunder
includes Tenant's Proportionate Share of all real estate taxes or assessments,
both general and special (collectively, "Taxes"), levied upon the Property
during the calendar year 2004 ("Base Year") based upon an amount of One and
50/100ths Dollars ($1.50) per square foot per annum. Subject to the limitation
hereinafter provided, in the event that the amount of Taxes payable during the
term of this Lease exceed the amount of Taxes payable during the Base Year, then
in such event Tenant shall pay to Landlord in equal monthly installments, in
advance with payments of Fixed Minimum Rent, an amount equal to one-twelfth
(1/12) of the estimated amount of Tenant's Proportionate Share of Taxes. Within
thirty (30) days after the actual amount of Tenant's Proportionate Share of
Taxes has been determined by Landlord, based on the actual Taxes, Landlord shall
notify Tenant and Tenant shall pay to Landlord or Landlord shall credit to
Tenant's account for future payments of Taxes, as the case may be, the
difference between the estimated amount of Tenant's Proportionate Share of Taxes
theretofore paid to Landlord for such year and the actual amount of Tenant's
Proportionate Share of Taxes for such year. Notwithstanding the foregoing, if
Landlord's costs and expenses associated with Taxes exceed the amount payable
during the Base Year, in no event shall Tenant's Proportionate Share of Taxes be
increased during any Lease Year more than one percent (1%) per annum. The amount
payable by Tenant pursuant to this Section 2.4 for the year in which this Lease
commences or terminates shall be prorated based on the ratio of that portion of
the term of this Lease to the applicable tax year. For purposes of this Section
2.4 and Sections 2.2 and 2.5 of this Lease, "Tenant's Proportionate Share" means
the percentage determined by dividing the number of square feet of floor area in
the Premises by the total square feet of net leasable floor area from time to
time contained in the buildings on Landlord's Property. As of the date hereof,
Tenant's Proportionate Share of (i) the Parkview Building is 39.77% and (ii)
Building IV is 14%. Tenant shall also pay to the applicable taxing authority
when due any taxes or assessments levied against the personal property or trade
fixtures brought to or installed at the Premises by or on behalf of Tenant.
2.5 Landlord's Insurance. The Fixed Minimum Rent payable hereunder
includes Tenant's Proportionate Share of all costs and expenses incurred by
Landlord for insurance ("Landlord's Insurance") covering or relating to the
Property or the operation thereof, including, without limitation, casualty,
liability, worker's compensation and rental insurance, during the term of this
Lease.
2.6 Late Charge and Default Interest. Notwithstanding anything in this
Lease to the contrary, if Tenant fails to pay the Fixed Minimum Rent or any
other charges due hereunder within five (5) days after due, then, in addition to
and not in lieu of any other right or remedy available to Landlord, Tenant shall
pay to Landlord (i) a late charge from the original due date until paid in full
in an amount equal to Twenty-five Dollars ($25.00) per day or one and one-half
percent (1.5%) per month, or fraction thereof, whichever is greater and (ii)
interest on the unpaid amount at the Default Rate (as hereinafter defined) from
the original due date until paid in full.
2.7 Lease Year. The term "Lease Year" shall mean the period of twelve
(12) months commencing on the Commencement Date and ending on the day
immediately preceding the first anniversary of the Commencement Date and each
successive period of twelve (12) months thereafter during the term hereof.
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2.8 Security Deposit. Concurrently with the execution of this Lease,
Tenant shall deposit with Landlord the sum of Zero and 00/100ths Dollars ($0.00)
("Security Deposit") as security for the full, prompt and faithful performance
by Tenant of all of its obligations hereunder and thereafter during the
continuance of this Lease shall maintain on deposit with Landlord said sum.
Landlord may, without prejudicing any other rights or remedies set forth herein,
apply the Security Deposit, or any part thereof, toward the cost and expense of
curing any default by Tenant under this Lease (including the payment of
Landlord's attorney's fees), in which event Tenant shall restore the Security
Deposit to its original amount immediately after receipt of Landlord's written
request to do so. Within thirty (30) days following the termination of this
Lease and vacation of the Premises by Tenant in the condition required by this
Lease, the Security Deposit, or the portion thereof remaining unapplied after
the curing of every default by Tenant, shall be returned to Tenant. No interest
shall be payable to Tenant on account of the Security Deposit.
ARTICLE III
CONSTRUCTION OF IMPROVEMENTS
3.1 Possession. Subject to Section 3.2(a) hereof, Tenant shall take
possession of the Premises in its "as-is" condition as of the Commencement Date,
shall not permit the Premises to be vacant during the term of this Lease and at
the end of the term of this Lease or on the earlier termination hereof, shall
deliver all keys to Landlord and leave and deliver the Premises to Landlord
broom clean and in good condition and repair, reasonable wear and tear only
excepted. All merchandise, property, material or waste left in the Premises (or
adjacent interior or exterior areas) by Tenant after the end of the term of this
Lease or the earlier termination hereof may be removed, stored, sold or
otherwise disposed of by Landlord without notice to Tenant or liability to
Landlord and Tenant shall reimburse Landlord for any costs incurred in
connection therewith immediately upon demand.
3.2 Construction of Improvements.
(a) Landlord shall make the improvements to the Premises, if
any, described as Landlord's Work ("Landlord's Work") on Exhibit C attached
hereto and made a part hereof. Landlord shall use reasonable efforts to
substantially complete Landlord's Work on or before the Commencement Date and
shall provide Tenant notice of the occurrence thereof, but shall not be
responsible for delays due to (i) causes beyond Landlord's reasonable control,
(ii) any act, delay or failure to act of Tenant, (iii) any changes requested by
Tenant in Landlord's Work or any work performed or to be performed by Tenant,
(iv) the quality of performance or completion of any work by a person, firm or
corporation employed by Tenant, (v) the work being performed by or on behalf of
Tenant which, under good construction scheduling practices should be completed
before portions of the Landlord's Work are completed, is not completed by Tenant
on schedule and/or results in delays in the completion of Landlord's Work,
and/or (vi) any other act or omission of Tenant, its agents, employees, or
contractors, including, without limitation, any delay in giving authorization or
approvals (in any instance, a "Tenant Delay"). Tenant shall be entitled, as
Tenant's sole remedy, to an abatement of the Fixed Minimum Rent otherwise due
hereunder for any period following the Commencement Date during which the
Premises remain unavailable for occupancy by Tenant because of Landlord's
failure to substantially complete Landlord's Work; provided, however, that if
Landlord, in Landlord's sole judgment, is delayed in timely substantially
completing Landlord's Work because of any Tenant Delay, then there shall be no
abatement of the Fixed Minimum Rent for the period of such Tenant Delay. Except
for the abatement of the Fixed Minimum Rent as set forth in the previous
sentence, Tenant waives and releases any and all claims for damages against
Landlord resulting from the Premises remaining unavailable for occupancy by
Tenant due to Landlord's failure to substantially complete Landlord's Work. The
taking of possession of the Premises by Tenant shall be deemed conclusively to
establish that Landlord's Work has been completed and accepted by Tenant.
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(b) On or before the Commencement Date, Tenant shall, at its
sole cost and expense, supply all installations and complete the improvements
and other work, if any, described as Tenant's Work ("Tenant's Work") on Exhibit
C, and shall fully equip the Premises with all trade fixtures, lighting
fixtures, furniture, furnishings, fixtures, floor coverings, signs, special
equipment and other items of construction and personal property necessary for
the completion of the Premises and the proper operating of Tenant's business
therein.
(c) Tenant shall not undertake, directly or indirectly,
Tenant's Work or any other construction work, improvements or alterations
(collectively, "Alterations"), nor shall Tenant install any equipment other than
trade fixtures and personal property, in the Premises without first obtaining
Landlord's written approval of the plans and specifications ("Plans") therefor.
Within thirty (30) days after the execution of this Lease, Tenant shall submit
the Plans to Landlord showing in detail the Alterations Tenant is required or
desires to undertake in the Premises. The Plans shall be prepared at Tenant's
sole cost and expense by an engineer or architect of recognized competence,
licensed to practice in the State of Ohio and otherwise acceptable to Landlord.
Tenant shall revise the Plans in accordance with and within seven (7) days after
receipt of Landlord's comments. Tenant, at Tenant's sole cost and expense, shall
obtain all building, use and occupancy permits and licenses required by
applicable governmental authorities for the Alterations, for the use of the
Premises and for the conduct of Tenant's business. Tenant shall make such
changes to the Plans as may be required to conform the same to the laws and
ordinances applicable to the Alterations. Landlord's approval of the Plans shall
not constitute the assumption of any liability on the part of Landlord for their
accuracy or conformity with building codes or any other legal requirements.
(d) The Alterations performed at the Premises by or on behalf
of Tenant, including, without limitation, Tenant's Work, whether in the nature
of erection, construction, alteration or repair, shall be performed with new
materials and completed in a first-class and workmanlike manner, promptly,
efficiently and competently by duly qualified and, if required by Landlord,
licensed persons or entities, without interference with or disruption of the
operations of other tenants or users of Landlord's Property, and in accordance
with all applicable laws, ordinances, rules, regulations and requirements of any
governmental authority having jurisdiction over the Premises, including, without
limitation, the Americans with Disabilities Act of 1990, as amended. Subject to
Section 3.3 hereof, the Alterations shall at once when made or installed be
deemed to have attached to the freehold estate and become the property of
Landlord and, except as otherwise provided herein, shall remain for the benefit
of Landlord at the end of the term or other termination of this Lease in as good
condition and repair as when installed, reasonable wear and tear excepted, and
Tenant shall not be entitled to any payment or compensation therefor.
3.3 Trade Fixtures. If Tenant is not then in default hereunder, all
trade fixtures, personal property and/or equipment installed in the Premises by
Tenant may, and if Landlord so requests shall (together with any other
Alterations made to the Premises by or for the benefit of Tenant if directed by
Landlord to do so), be removed by Tenant at the end of the term or other
termination of this Lease and Tenant shall immediately repair, at Tenant's sole
cost and expense, any injury to the Premises resulting from such installation or
removal. If Tenant removes lighting fixtures, then Tenant shall restore and
leave in operating order and with operating bulbs or tubes the equivalent of the
lighting equipment in the Premises as of the Commencement Date.
3.4 Alterations. Tenant shall not make any Alterations nor shall Tenant
cause or permit any equipment or apparatus to be installed or put upon or
through the roof, walls or floors of the Premises without Landlord's written
consent. Any permitted Alterations to or installations in the Premises shall be
effected by Tenant, lien free without cost to Landlord and subject to the
requirements of Sections 3.2(c) and (d) hereof.
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3.5 Signs. Tenant shall not place any signs on the exterior of the
Premises without Landlord's written consent, which consent shall not be
unreasonably withheld, with respect to one (1) sign advertising Tenant's
business or products provided such sign is compatible, in Landlord's sole
judgment, with the design, appearance, color and content of the other signs on
the Building and otherwise complies with all applicable legal requirements.
Tenant shall maintain any such sign in good condition and repair, remove such
sign when necessary to permit repairs to the Building (and in any case not later
than the end of the term or earlier termination of this Lease), and repair, at
Tenant's expense, any damage to the Premises caused by the installation or
removal thereof. If Landlord modifies the sign criteria for Landlord's Property,
then Tenant shall promptly, at Tenant's expense, replace any existing signs with
new signs conforming to Landlord's revised sign criteria. Landlord may remove,
at Tenant's sole cost and expense, any sign installed by Tenant in breach of
this Section 3.5.
3.6 Mechanic's Liens. Tenant shall not permit any lien or other charge
to become a lien, encumbrance or charge upon the Premises, Landlord's Property
or any part thereof. In the event a lien is filed, Tenant shall discharge,
satisfy or bond off the lien within ten (10) days after such lien is filed and
Tenant shall indemnify, defend and save Landlord harmless from and against any
and all costs, expenses, claims, losses or damages, including, without
limitation, attorney's fees, resulting therefrom or by reason thereof.
3.7 Landlord's Lien. Tenant hereby grants to Landlord a security
interest in all goods, inventory, furniture, equipment, trade fixtures and
personal property (collectively, "Tenant's Property") belonging to Tenant which
are or may be placed in the Premises during the term of this Lease together with
all proceeds of the foregoing. Said security interest shall secure all amounts
payable by Tenant hereunder, including all costs of collection and any other
indebtedness of Tenant to Landlord. Upon the occurrence of a default by Tenant
hereunder which is not cured within any applicable cure period, Landlord may, in
addition to and not in lieu of any other remedies set forth herein, enter upon
the Premises, by force if necessary, and take possession of Tenant's Property
without liability for trespass or conversion, and sell Tenant's Property, or any
part thereof, with or without notice to Tenant, at public or private sale, with
or without having Tenant's Property at such sale and Landlord or its assignee
may purchase and apply the proceeds thereof, less any expenses incurred in
connection with taking possession and selling Tenant's Property, as a credit
against any sums due by Tenant to Landlord pursuant hereto. Any surplus
remaining after a sale shall be paid to Tenant and any deficiency shall be
immediately paid to Landlord by Tenant. Within seven (7) days after Landlord's
request therefor, Tenant shall execute any financing statement or security
agreement Landlord deems necessary to perfect such security interest in Tenant's
Property. The lien granted hereunder shall be in addition to any Landlord's lien
that may now or at any time hereafter be provided by law.
ARTICLE IV
MAINTENANCE AND DAMAGE TO THE PREMISES
4.1 Maintenance by Landlord. Landlord shall maintain, repair and
replace the roof, exterior walls (excepting any doors or windows therein),
heating, air conditioning, and ventilating equipment (including any of such
equipment which may be mounted on the roof of the Premises) and any other
structural portions of the Premises, make any repairs or replacements of the
foregoing becoming necessary during the term of this Lease, unless occasioned by
any act, failure to act or negligence of Tenant, its agents, contractors,
invitees, customers or employees, in which event such repairs or replacements
shall be made by Landlord, at Tenant's sole cost and expense, and Tenant shall
reimburse Landlord for the cost thereof immediately upon demand. If any of the
foregoing are damaged and the cause of the damage cannot reasonably be
determined, then such damage shall be repaired by Landlord, at Tenant's sole
cost and expense, and Tenant shall immediately reimburse Landlord for the cost
thereof upon demand.
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4.2 Maintenance by Tenant. Tenant shall keep and maintain the Premises
in a clean, healthy and safe condition and in good order, condition and repair,
and, except as otherwise provided in Sections 4.1 and 4.4 hereof, shall promptly
make all repairs or replacements becoming necessary during the term of this
Lease, including, without limitation, repairs or replacements of windows, doors,
glass (which shall be replaced with glass of the same size and quality),
electrical, plumbing and sewer lines and fixtures within the Premises, walls,
floor coverings and ceilings and all docks, conveyors, fire extinguishers and
building appliances of every kind or nature. Tenant shall at all times maintain
sufficient heat in the Premises to prevent the freezing of sprinkler and water
lines. Tenant shall immediately advise Landlord of any damage to or accident in
the Premises or required repairs which are Landlord's responsibility to perform.
4.3 Access by Landlord. Landlord and its agents, employees and
representatives shall be permitted to enter the Premises at all reasonable or
necessary times (or immediately in the event of an emergency) to examine and
inspect the condition thereof or to make repairs Landlord is required to make
under this Lease or that Landlord deems necessary in the operation of Landlord's
Property. Landlord shall have the right to show the Premises to prospective
tenants at all reasonable times during the last year of the term of this Lease,
to maintain a "for rent" sign on the exterior of the Premises during the same
period (which sign shall not be removed or obscured by Tenant) and to show the
Premises at any time to prospective purchasers or mortgagees.
4.4 Damage to the Premises. If the Premises shall, without fault or
neglect on the part of Tenant, its agents, employees, invitees, customers or
employees, be damaged or destroyed by fire or other casualty covered by standard
policies of fire and extended coverage insurance and such damage or destruction
(exclusive of Tenant's leasehold improvements) could reasonably be repaired
within ninety (90) working days from the happening thereof, then Landlord shall
proceed with all reasonable speed to repair such damage or destruction,
exclusive of Tenant's leasehold improvements which shall be the sole
responsibility of Tenant. If the Premises cannot reasonably be restored within
said ninety (90) day period, then Landlord may, but shall not be required to,
elect to restore the Premises. If Landlord does not elect to restore the
Premises, then this Lease shall terminate as of the date of such damage or
destruction and both parties shall be released from further liability hereunder,
without prejudice, however, to any rights accruing to either party prior to the
date of such damage or destruction. If Landlord elects or is required to restore
the Premises and promptly commences and thereafter diligently pursues such
restoration, then this Lease shall not terminate, notwithstanding that the
actual time required for such repairs or restoration may exceed that
contemplated by the parties and Tenant shall be entitled to a temporary
reduction in Fixed Minimum Rent, as determined by Landlord, corresponding to the
time during which and that portion of the Premises of which Tenant is deprived
of possession on account of such damage or destruction or the repair or
restoration thereof undertaken by Landlord. Notwithstanding the foregoing,
Landlord shall have the right to receive the full amount of the proceeds of any
business interruption insurance for the undiminished Fixed Minimum Rent and
there shall be no reduction in Fixed Minimum Rent if such damage or destruction
was the result of the fault or neglect of Tenant, its agents, employees,
invitees, customers and employees. Notwithstanding anything in this Lease to the
contrary, Landlord shall not be obligated to repair the Premises and Landlord
shall have the right to terminate this Lease if the Premises are substantially
damaged or destroyed by fire or any other cause during the last two (2) years of
the term of this Lease or if the Building (whether or not Premises are damaged
or destroyed) or the Common Areas are substantially destroyed by fire or other
cause. If the damage or destruction of the Premises is so minor that the
Premises remain fit for occupancy, then Landlord shall repair such damage or
destruction as promptly as reasonably possible and there shall be no abatement
of Fixed Minimum Rent as a result thereof.
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ARTICLE V
INSURANCE
5.1 Indemnity and Liability Insurance. Tenant shall indemnify, defend
and save Landlord harmless from and against any claim, action, loss or liability
for injury to or death of persons and/or loss or damage to property, damages,
costs and expenses (including, without limitation, attorneys' fees and court
costs) occasioned by or resulting from, in whole or in part, directly or
indirectly, Tenant's use of the Premises, Tenant's default hereunder or from any
other act or omission of Tenant or anyone claiming by, through or under Tenant.
The foregoing specifically includes, without limitation, all foreseeable and
unforeseeable damages, directly or indirectly arising out of the presence, use,
generation, storage, release, threatened release or disposal (whether on or
about the Premises) on Landlord's Property of any Hazardous Material. Such
damages shall include, without limitation: (i) the cost of any required or
necessary repair, clean-up or detoxification; (ii) any closure expenses; and
(iii) the cost of preparing any required plans relating to the presence, use,
generation, storage, release, threatened release or disposal of any Hazardous
Material. Tenant's indemnity of Landlord shall be required in addition to the
insurance required under this Section 5.1 and such indemnity shall commence on
the date Tenant takes possession of the Premises and shall survive the
termination of this Lease. During the term of this Lease, Tenant shall, at its
sole cost and expense, carry commercial general liability and general liability
with general aggregate amount and per occurrence limit insurance, with malicious
mischief and vandalism endorsements, with limits of at least Two Million Dollars
($2,000,000) per occurrence for personal and bodily injury and at least One
Million Dollars ($1,000,000) per occurrence for property damage, broad form
boiler and machinery insurance adequate to cover the full replacement value of
all improvements and betterments and such additional insurance and/or with such
higher limits as Landlord may reasonably require, with Landlord, Xxxxxx X.
Xxxxxxx, Trustee and any mortgagees of Landlord and/or Xxxxxx X. Xxxxxxx,
Trustee named as additional insureds, as their interests may appear, which
policies shall provide that the same may not be canceled, terminated or
materially amended without at least thirty (30) days' prior written notice to
Landlord and/or Xxxxxx X. Xxxxxxx, Trustee. A copy of such policy (or a
certificate on Xxxxx Form 25-S thereof) shall be kept on deposit with Landlord
and delivered to Landlord prior to the date that Tenant takes possession of the
Premises and at any other time requested by Landlord and/or Xxxxxx X. Xxxxxxx,
Trustee
5.2 Contractor's Insurance. Tenant shall require each contractor
performing work in, on or about the Premises for or on behalf of Tenant to
secure and keep in force, at no expense to Landlord, comprehensive general
liability insurance, including contractor's liability coverage, contractual
liability coverage, completed operations coverage, broad form property damage
endorsement and contractor's protective liability coverage, including
independent contractors, with the limit for each occurrence of at least One
Million Dollars ($1,000,000) for personal and bodily injury and One Million
Dollars ($1,000,000) for property damage, with Landlord and any mortgagees of
Landlord named as additional insureds. A copy of such policy (or certificate
thereof) shall be delivered to Landlord prior to the date that any such work is
performed at the Premises.
5.3 Damage to Contents. Landlord shall have no responsibility for the
care or safety of merchandise or other property kept on the Premises by Tenant
or any party claiming by, through or under Tenant, all of which shall be brought
to the Premises at such party's sole risk, and Landlord shall not be liable for
any damage caused, directly or indirectly, by (i) acts or omissions of other
tenants of Landlord's Property or the theft or misappropriation of any such
merchandise or property; (ii) water or steam leaking, escaping or bursting from
any sprinkler equipment, water, steam or other pipes, washstands, tanks, water
closets or sewers in, above, under, upon or about the Premises; (iii) water,
snow or ice being upon or coming through the roof, skylights, windows, trapdoors
or otherwise; or (iv) any part of the Building becoming out of repair.
Notwithstanding anything contained herein to the contrary, Landlord shall have
no obligation to provide security for the Common Areas or any other portion of
Landlord's Property.
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5.4 Mutual Waiver of Subrogation. Landlord and Tenant each hereby waive
all rights of recovery and causes of action that either has or may have or that
may arise hereafter against the other for damage to the Premises, Landlord's
Property, personal property or business of either of them or of anyone claiming
through either of them caused by any of the perils coverable (whether or not
covered) by all risk fire and extended coverage insurance, contents and/or
business interruption insurance (irrespective of whether or not such insurance
coverage is in fact covered or obtained), or by any other insurance for damage
to property carried by the party whose property was damaged, notwithstanding
that any such damage may be due to the negligence of either party or persons
claiming by, through or under them. Each party shall have their respective
insurance policies endorsed to reflect the provisions of this Section 5.4.
ARTICLE VI
EMINENT DOMAIN
6.1 Eminent Domain. Appropriation of all of the Premises shall
terminate this Lease as of the date thereof. If more than fifteen percent (15%),
but not all of the Premises are appropriated and loss of the part so
appropriated would have a substantial detrimental effect on Tenant's use of the
Premises or more than twenty percent (20%) of the Common Areas are appropriated,
in each case as determined by Landlord, then Landlord may terminate this Lease
by written notice to Tenant within a period of fifteen (15) days after such
appropriation. If less than fifteen percent (15%) of the Premises are
appropriated or if Landlord does not exercise its termination right, then
Landlord shall proceed with all reasonable speed to repair any damage to the
Premises caused by the partial appropriation and Tenant shall be entitled to a
reasonable adjustment in Fixed Minimum Rent accruing hereunder from the date of
appropriation, proportionate to that part of the Premises so taken, as
determined by Landlord.
6.2 Proceeds of Eminent Domain. Tenant shall not be entitled to any
part of any award or settlement of damages representing the value of land and
buildings appropriated, or any estate (including leasehold) therein, or damage
to the residue of the Premises or other property of Landlord, it being agreed
that as between Landlord and Tenant any such award shall be the sole property of
Landlord. Tenant may file a claim for moving expenses and relocation costs and
shall be entitled to all proceeds specifically allocated by the condemning
authority on account thereof provided such award does not decrease any award due
Landlord. No appropriation of part or all of the Premises or termination of this
Lease pursuant to this Section 6.2 shall be deemed an eviction of Tenant, or a
breach of any covenant of Landlord hereunder. For purposes of this Article VI,
"appropriation" or "appropriated" means a taking in condemnation proceedings by
right of eminent domain or a conveyance by Landlord to a public or quasi-public
authority under threat of condemnation and the date of appropriation shall be
the date on which any such event occurs.
ARTICLE VII
DEFAULT
7.1 Default. If (a) Tenant defaults in the payment of Fixed Minimum
Rent or any other charges due hereunder or in the performance of any of its
other agreements hereunder, and if such default relates to the payment of money
and Tenant fails to remedy the default within three (3) days of the due date, or
if the default relates to matters other than the payment of money and Tenant
fails to commence to remedy such default within ten (10) days after Landlord
gives Tenant written notice thereof and thereafter diligently pursues correction
thereof (but in no event shall such cure exceed thirty (30) days); (b) Tenant
vacates or abandons a substantial part of the Premises; (c) Tenant fails to
procure or maintain the insurance required of Tenant hereunder; (d) a receiver,
non-bankruptcy trustee or custodian of any property of Tenant or the Premises is
appointed; (e) there is an
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appointment of Tenant or any guarantor as a debtor-in-possession for its
business or property; (f) Tenant's interest in the Premises is levied upon by
legal process or there is a filing of a petition under applicable bankruptcy
laws by or against Tenant or any guarantor of Tenant's obligations hereunder
whereby Tenant or such guarantor seeks financial relief from any monetary
obligations or based upon or by reason of the failure or inability of Tenant or
such guarantor to pay its respective debts as they become due; (g) Tenant or any
such guarantor is reorganized or there is an arrangement by Tenant or any such
guarantor with its creditors, whether pursuant to applicable bankruptcy laws or
any similar federal or state proceeding, unless such petition is filed by a
party other than Tenant or any such guarantor and such petition is withdrawn or
dismissed within fifteen (15) days after the date of its filing; (h) Tenant
disposes of all or substantially all of its assets in bulk or makes an
assignment for benefit of its creditors; or (i) the taking, sale or transfer of
Tenant's interest in the Premises under attachment, execution or other process
at law or equity, then and in any such instance, without further notice to
Tenant, Landlord, in addition to and not in lieu of any of the other remedies
available to it at law or in equity, may (x) enter upon the Premises and
terminate this Lease, in which event the obligations of Tenant hereunder shall
cease, without prejudice, however, to the right of Landlord to recover from
Tenant any sums due Landlord for Fixed Minimum Rent or otherwise to the date of
entry, and in addition, as liquidated damages, a sum equal to the Fixed Minimum
Rent and any other sums payable hereunder remaining unpaid for the unexpired
portion of the term of this Lease discounted at the rate of four percent (4%)
per annum to present net worth, plus the estimated expenses and cost of
reletting (including, without limitation, broker's commission, remodeling and
redecorating expenses and attorneys' fees), except that if Tenant is adjudicated
a bankrupt, Landlord shall, in lieu of such liquidated damages, be allowed a
claim in the bankruptcy proceeding for future Fixed Minimum Rent to the extent
permitted by applicable bankruptcy laws; (y) enter upon the Premises without
terminating this Lease, expel or remove Tenant or any other party occupying the
Premises, by force if necessary, without any liability to Tenant or any other
party on account thereof and relet the Premises, in Landlord's name for the
account of Tenant, for the remainder of the term of this Lease at the amount of
Fixed Minimum Rent then attainable and immediately recover from Tenant any
deficiency for the balance of the term of this Lease between the amount for
which the Premises were relet and the Fixed Minimum Rent provided hereunder
discounted at the rate of four percent (4%) per annum to present net worth, plus
any expenses and costs of reletting (including, without limitation, broker's
commissions, remodeling and redecorating expenses and attorney's fees); or (z)
cure the default at Tenant's sole cost and expense, in which event Tenant shall
reimburse Landlord, upon demand, for Landlord's cost and expense of such
performance together with interest ("Default Rate") at the greater of fifteen
percent (15%) per annum or three percent (3%) in excess of the publicly
announced "prime" or "base" rate of interest from time to time charged by any
bank selected by Landlord with offices located in Cleveland, Ohio; provided,
however, that in no event shall the Default Rate exceed the highest rate of
interest permitted by applicable law.
7.2 Repeated Default. Notwithstanding anything set forth in this Lease
to the contrary, if Tenant defaults in the timely payment of Fixed Minimum Rent
or any other charge or in the performance of its other agreements hereunder, and
if any such default shall be repeated two (2) times in any period of twelve (12)
consecutive months, then, notwithstanding that such default shall have been
cured within the cure period provided in Section 7.1 hereof, any further similar
default within said twelve (12) month period shall be deemed to be a "Repeated
Default". In the event of a Repeated Default, Tenant shall have no right to cure
same and Landlord, without giving Tenant any notice or the opportunity to cure
such default, may exercise all rights and remedies available to Landlord
pursuant to Section 7.1 hereof, including, without limitation, the right to
terminate this Lease. If Tenant defaults under this Lease more than one (1) time
in any twelve (12) month period, irrespective of whether such default is cured
by Tenant or waived by Landlord, then, immediately upon demand by Landlord,
Tenant shall immediately increase the Security Deposit to an amount equal to the
greater of (a) three (3) times the amount set forth in Section 2.6 or (b)
one-fourth (1/4th) of the then applicable annual Fixed Minimum Rent.
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7.3 Remedies and Waiver.
(a) The remedies provided to Landlord hereunder are cumulative
and intended to be in addition to and not in lieu of any other remedies,
including specific performance and/or injunctive relief, which may be available
to Landlord at law or in equity. No obligation, term, covenant, condition, or
agreement in this Lease (collectively, "Obligation") shall be deemed waived by
Landlord unless such waiver is in writing and signed by Landlord. No waiver of
any Obligation by Landlord will imply or constitute the further waiver of that
or any other Obligation. The failure of Landlord to (i) seek redress for the
breach of, or default in, or (ii) insist upon the strict performance of, any
Obligation or of any of the rules and regulations set forth herein or
hereinafter adopted by Landlord, shall not be deemed a waiver of any rights or
remedies Landlord may have, and shall not be deemed a waiver of any subsequent
breach of, or default in, such Obligation or such rules and regulations.
(b) No act or thing done by Landlord or Landlord's agents
during the term of this Lease will be deemed an acceptance of a surrender of the
Premises, and no agreement to accept a surrender will be valid unless in
writing, signed by Landlord. The delivery of Tenant's keys to any employee or
agent of Landlord will not constitute a termination of this Lease unless
Landlord has entered into a written agreement to that effect.
(c) No payment by Tenant, nor receipt by Landlord, of a lesser
amount than the Fixed Minimum Rent or other charges stipulated in this Lease
will be deemed to be anything other than a payment on account of the earliest
stipulated rent. No endorsement or statement of any check, or any letter
accompanying any check or payment as Fixed Minimum Rent, will be deemed an
accord and satisfaction. Landlord will accept the check for payment without
prejudice to Landlord's right to recover the balance of such rent or to pursue
any other remedy available to Landlord.
(d) If this Lease is assigned, or if the Premises or any part
of the Premises are sublet or occupied by anyone other than Tenant, Landlord may
collect rent from the assignee, subtenant, or occupant, and apply the net amount
collected to the Fixed Minimum Rent reserved in this Lease. That collection will
not be deemed a waiver of the covenant of this Lease against assignment and
subletting, or the acceptance of the assignee, subtenant, or occupant as a
tenant, or a release of Tenant from the complete performance by Tenant of its
covenants in this Lease.
ARTICLE VIII
MISCELLANEOUS
8.1 Quiet Enjoyment. If Tenant pays the Fixed Minimum Rent and other
charges herein provided and timely performs all of the other covenants and
agreements herein stipulated to be performed on Tenant's part, then Tenant
shall, at all times during the term of this Lease, have the peaceable and quiet
enjoyment and possession of the Premises without any manner of hindrance from
Landlord or any person lawfully claiming by, under or through Landlord, except
as to any portion of the Premises that may be taken by eminent domain and
subject to any mortgages, easements, restrictions, covenants or other agreements
now or hereafter of record with respect to Landlord's Property, or any part
thereof.
8.2 Assignment. Tenant shall not assign this Lease, or any interest
herein, or sublet the Premises, in whole or in part, by operation of law or
otherwise, or permit the Premises to be occupied or used by any other person or
entity without Landlord's written consent. A transfer by operation of law,
merger or consolidation, or a change of more than ten percent (10%) in ownership
of the voting stock or partnership or membership interests of Tenant (if Tenant
is a corporation, partnership or limited liability company, as the case may be)
shall be deemed an assignment for purposes of this Section 8.2. Any purported
assignment or subletting not in compliance herewith shall be void and of
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no force or effect. Any assignment, subletting or other transfer, even with the
consent of Landlord, shall not relieve Tenant from primary liability for the
payment of Fixed Minimum Rent and other charges or from Tenant's primary
obligation to keep and be bound by the terms, conditions and covenants of this
Lease. If Tenant requests Landlord's consent to any assignment, subletting or
other transfer, then Tenant shall, upon demand, reimburse Landlord for
Landlord's administrative, legal and other costs in reviewing Tenant's request.
Landlord shall be entitled to any profits derived by Tenant as a result of any
permitted assignment of this Lease or permitted sublease of the Premises. At
Landlord's option, Landlord may elect to collect Fixed Minimum Rent directly
from any assignee or subtenant.
8.3 Memorandum of Lease. Neither this Lease not any short form or
memorandum hereof shall be recorded.
8.4 Estoppel Certificate/Subordination.
(a) This Lease is and shall at all times, unless Landlord
shall otherwise elect, be subject and subordinate to all covenants,
restrictions, easements, encumbrances, ground or underlying leases and mortgages
(which for purposes hereof include deeds of trust), as the same may be amended,
modified, replaced or consolidated, now or hereafter affecting the fee title to
Landlord's Property or any part hereof.
(b) Although the provisions of this Section 8.4 are intended
to be self-operative without the requirement of any further action on the part
of Landlord or Tenant or any other party, Tenant covenants and agrees that
Tenant shall within seven (7) days after Landlord's written request, execute and
deliver to Landlord, at no cost and expense to Landlord: (i) any documents
necessary to subordinate this Lease to any rights and/or easements for
utilities, ingress, parking, party walls and/or common walls and to the lien of
any mortgage Landlord desires to place on Landlord's Property; and/or (ii) an
estoppel certificate to Landlord or any proposed mortgagee or purchaser of all
or any portion of Landlord's Property certifying that this Lease is in full
force and effect, that there are no defenses or offsets thereto on Tenant's
part, if such is the case, or if not, stating those claimed by Tenant, and
further certifying to such other matters as Landlord or any such mortgagee or
purchaser may request.
8.5 Sale by Landlord. In the event of the sale or transfer of the
Premises or Landlord's Property, Landlord shall automatically be deemed released
from all liability and obligations under this Lease as of the effective date of
such sale or transfer.
8.6 Attornment. If any person shall succeed to all or part of
Landlord's interest in the Premises, whether by purchase, foreclosure, deed in
lieu of foreclosure, power of sale or otherwise and if so requested or required
by such successor-in-interest, Tenant shall attorn to such successor-in-interest
and, within seven (7) days after Landlord's written request, shall execute an
agreement in confirmation of such attornment on the form that such
successor-in-interest shall request.
8.7 Rules and Regulations. Landlord shall have the right to make and
amend from time to time, and Tenant agrees to observe and cause its agents,
employees, invitees and customers to observe, such rules and regulations
respecting the use and occupancy of the Premises and the Common Areas as
Landlord may deem necessary or proper for the preservation, safety, care,
cleanliness and operation of Landlord's Property. A copy of any such rules and
regulations will be provided to Tenant in writing.
8.8 Relationship of the Parties. Nothing contained in this Lease shall
be deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venture or any
association whatsoever between Landlord and Tenant, other than the relationship
of Landlord and Tenant.
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8.9 Holdover. If Tenant remains in possession of the Premises after the
expiration of the term of this Lease, then Tenant shall be deemed a tenant of
the Premises at sufferance subject to all of the terms and provisions hereof,
except only as to the term of this Lease and the Fixed Minimum Rent payable
during the holdover period shall be two (2) times the highest rate of Fixed
Minimum Rent payable during the term of this Lease and Tenant shall be liable
for all damages resulting from Tenant's failure to vacate the Premises as
required herein.
8.10 Force Majeure. If Landlord or Tenant is delayed, hindered in or
prevented from the performance of any act required hereunder (other than the
payment of Fixed Minimum Rent and other charges payable by Tenant) by reason of
strikes, lockouts, labor troubles, inability to procure materials, failure of
power, riots, insurrection, the act, failure to act or default of the other
party, war or any other reason beyond the reasonable control of the party who is
seeking additional time for the performance of such act, 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 reasonable period, not to
exceed a period equivalent to the period of such delay.
8.11 Notices. Any notice required or permitted to be given hereunder
shall be in writing and sent by certified mail, return receipt requested,
messenger delivery or nationally recognized overnight courier (provided a
receipt is given), to Tenant at the Premises and to Landlord at 0000 Xxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxx Xxxxxxx, Xxxx 00000, Attention: Xxxxx X. Xxxxxxx, or to
such other address as either party may from time to time designate in writing.
Notice sent by: (i) certified mail, return receipt requested, shall be deemed
received on the third (3rd) business day after deposit in the United States
mail, postage prepaid; (ii) messenger delivery shall be deemed received upon
confirmation of such delivery by the messenger service; and (iii) overnight
courier shall be deemed received on the next business day after dispatch.
8.12 Personal Liability. Notwithstanding anything to the contrary
contained in this Lease, it is expressly understood and agreed, that: (i) there
shall be no personal liability of whatsoever nature imposed upon Landlord, its
successors or assigns, any partner of Landlord, whether general or limited if
Landlord is a partnership, nor its officers, directors or shareholders, if
Landlord is a corporation, nor its members or managers, if Landlord is a limited
liability company, or their respective heirs, personal representatives,
successors or assigns, or any mortgagee in possession with respect to any of the
terms, covenants or conditions of this Lease; (ii) in the event that Landlord
shall commit a default or breach of any of the terms, covenants or conditions
hereof and Tenant shall obtain a judgment against Landlord for such default or
breach, Tenant's sole and exclusive remedy for the enforcement and collection of
such judgment shall be the institution of foreclosure or other appropriate
execution proceedings solely against the Premises; and (iii) regardless of
whether or not the proceedings described in "(ii)" immediately above shall
result in a complete satisfaction of Tenant's judgment, in no event (whether by
proceedings at law, in equity, administrative proceedings or otherwise) shall
any deficiency or other personal judgment be rendered or enforced against
Landlord, its successors and assigns, any partner of Landlord, whether general
or limited if Landlord is a partnership, nor its officers, directors or
shareholders, if Landlord is a corporation, nor its members or managers, if
Landlord is a limited liability company, or their respective heirs, personal
representatives, successors or assigns, or any mortgagee in possession.
8.13 Broker. Tenant represents and warrants that no real estate broker
or finder has shown the Premises to Tenant or initiated the Lease of the
Premises to Tenant. Tenant shall, indemnify, defend and save Landlord harmless
from and against any claims by any other party claiming to have shown the
Premises to Tenant or initiated the Lease of the Premises to Tenant.
8.14 Power of Attorney. If Tenant fails to execute, acknowledge and
deliver any document or agreement required to be provided to Landlord under the
provisions of this Lease within the time period specified herein, then Tenant
does hereby appoint, make and constitute Landlord as Tenant's
14
attorney-in-fact to execute, acknowledge and deliver such agreement or document
on Tenant's behalf.
8.15 Arbitration. Any disagreement arising out of this Lease or from
any breach hereof which shall involve a claim in excess of One Thousand Five
Hundred Dollars ($1,500.00) shall, at Landlord's election, be decided by
arbitration in Cleveland, Ohio, in accordance with the Arbitration Rules of the
American Arbitration Association then in effect. This agreement to arbitrate
shall be specifically enforceable under the prevailing arbitration law and the
award rendered by the arbitrator shall be final and judgment may be entered upon
it in accordance with applicable law in any court having jurisdiction thereof.
Notice of the demand for arbitration shall be filed in writing with the other
party to this Lease and with the American Arbitration Association. The demand
for arbitration shall be made within a reasonable time after the subject claim
or dispute arises and in no event shall be made after the date when institution
of legal or equitable proceedings based on such claim or dispute would be barred
by any applicable statue of limitations.
8.16 Bad Checks. In the event that any of Tenant's checks payable to
Landlord shall be returned for insufficient funds, Landlord shall have the right
to demand from Tenant that all future payments of Fixed Minimum Rent and any
other charges be made by certified or bank check or money order, and Landlord
shall not be required to accept any check from Tenant which does not so conform.
8.17 Authority to Sign. If Tenant is a corporation, partnership
(general or limited), limited liability company or trust, each person signing
this Lease as an officer, partner, manager, member or trustee of Tenant
represents to Landlord that such person is authorized to execute this Lease
without the necessity of obtaining any other signature of any officer, partner,
manager, member, trustee or beneficiary, that the execution of this Lease has
been properly authorized by the Board of Directors of the corporation, by the
partners of the partnership, the members and/or managers of the limited
liability company or the trustee or the trust, as the case may be, and that this
Lease is fully binding on Tenant.
8.18 Confidentiality. Tenant shall keep the terms of this Lease and all
other information obtained by it or its representatives from Landlord during the
negotiation hereof and/or during the term hereof in strict confidence and shall
not disclose such terms and/or other information except to the extent reasonably
required in connection with its occupancy of the Premises. Any such disclosure
shall be limited to (i) prospective or potential shareholders, partners or
investors of Tenant; (ii) persons, firms or entities who may extend credit or
financing to Tenant; and (iii) persons, firms, entities or governmental agencies
to whom Tenant is required to make financial or other disclosures. Should this
Lease be terminated for any reason whatsoever, the foregoing obligation of
confidentiality shall nevertheless remain in full force and effect. In any
event, if Tenant fails to observe such obligation, such failure shall be deemed
a non-curable event of default and Landlord shall have the right to terminate
this Lease by reason thereof upon notice to Tenant.
8.19 Miscellaneous. This Lease contains the entire agreement between
the parties hereto and there are no promises, representations or inducements
except as set forth herein. This Lease may not be amended or modified except by
an instrument in writing signed by Landlord and Tenant. If any term, condition
or provision of this Lease or the application thereof to any person or
circumstance shall to any extent be invalid or unenforceable, then the other
provisions of this Lease or the application of such provision to persons or
circumstances other than those as to which it is held invalid or unenforceable
shall not be affected thereby and each provision of this Lease shall be valid
and be enforced to the fullest extent permitted by law. This Lease shall be
governed by and construed and enforced in accordance with the laws of the State
of Ohio. This Lease and all the covenants, provisions and conditions herein
contained shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, personal representatives, successors and assigns;
provided, however, that no assignment of Tenant's interest in this Lease in
violation of any of the
15
provisions hereof shall vest in the assignee any right, title or interest
whatsoever. This Lease may be executed in multiple counterparts, all of which
when taken together shall constitute one binding agreement. Neuter pronouns
shall be read as masculine or feminine words in the singular person as plural,
if the nature or number of the parties so requires. The word "term" when used to
refer to the period for which the Premises are let and leased shall include the
original term and any renewal or extension thereof including (where not
inconsistent with the specific provisions hereof) any period of holding over.
The captions of Articles, Sections, Paragraphs and Subparagraphs are for
convenience only and shall not be deemed to limit, construe, affect or alter the
meaning of such Articles, Sections, Paragraphs and Subparagraphs.
8.20 Financials. Upon Landlord's request therefor, Tenant agrees to
provide Landlord with Tenant's current financial reports or statements.
IN WITNESS WHEREOF, this Lease has been executed by Landlord and Tenant
as of the date first above written.
LANDLORD:
AMSDELL AND AMSDELL, an Ohio general
partnership
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Partner
TENANT:
U-STORE-IT MINI WAREHOUSE CO., an
Ohio corporation
By:
------------------------------------
Xxxx X. Xxxxxxx, President
ACKNOWLEDGMENT OF LANDLORD
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared Xxxxxx X. Xxxxxxx, known to me to be a Partner of Amsdell and Amsdell,
the party which executed the foregoing instrument, and acknowledged to me that
he did sign said instrument and that the same is his free act and deed as such
Partner and the free act and deed of said entity.
IN TESTIMONY WHEREOF, I have hereunto subscribed my hand and affixed my
official seal at Middleburg Heights, Ohio, this _____ day of October, 2004.
------------------------------
Notary Public
17
ACKNOWLEDGMENT OF CORPORATE TENANT
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared Xxxx X. Xxxxxxx known to me to be the President of U-Store-It Mini
Warehouse Co., the Corporation which executed the foregoing instrument, and
acknowledged to me that he did sign said instrument in the name and on behalf of
said Corporation as such officer having been duly authorized by its Board of
Directors and that the same is his free act and deed as such officer and the
free act and deed of said Corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my hand and affixed my
official seal at Cleveland, Ohio, this ______ day of October, 2004.
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Notary Public
18
