AMENDED AND RESTATED SUBLEASE AGREEMENT
Exhibit 10.17
AMENDED AND RESTATED SUBLEASE AGREEMENT
This SUBLEASE (the “Lease”), executed on this 21st day of July, 2008, by and between A.G. Realty Company, a Nebraska limited partnership, (hereinafter referred to as the “Landlord”) and Gordmans, Inc., a Delaware Corporation (hereinafter referred to as the “Tenant”). This Lease replaces the Tenant’s current lease for 98,716 square feet, dated as of September 1, 1983, as amended (the “Existing Lease”) which expires on the 31st day of July, 2009.
ARTICLE I - FUNDAMENTAL LEASE PROVISIONS AND EXHIBITS
SECTION 1.1 Fundamental Lease Provisions.
B. LEASED PREMISES: Approximately 77,704 square feet (“floor space”) commonly known as 00000 Xxxx Xxxxxx Xxxx, Xxxxx, Xxxxxxxx as outlined in red in Exhibit “B” attached hereto.
C. LEASE TERM: 5 years commencing on August 1st, 2009 and ending on July 31st, 2014.
D. FIXED MINIMUM RENT: Rent begins on August 1st, 2009 payable at the following rate for each square foot per year:
8/01/09 to 7/31/14 |
$5.00 per square foot/per year for a total of $388,520.00 per year, payable $32,376.67 per month |
8/01/14 to 7/31/19 |
$5.50 per square foot/per year for a total of $427,372.00 per year, payable $35,614.33 per month |
F. COMMON AREA EXPENSE: |
As set forth in Sections 5.3, 5.4, 7.1 and 7.4. | |
G. REAL ESTATE TAXES: |
As set forth in Section 8.1L | |
H. INSURANCE: |
As set forth in Section 7.4. | |
I. SECURITY DEPOSIT: |
Intentionally omitted. | |
J. LANDLORD’S ADDRESS: |
Gordman Properties Company 000 Xxxxxxx Xxxxxxx, Xxxxx 000 Xxxxx, XX 00000 | |
K. TENANT’S ADDRESS: |
Xx. Xxxx Xxxxxxx Gordmans, Inc. 00000 Xxxx Xxxxxx Xxxx Xxxxx, XX 00000 |
L. PERMITTED USES: The Tenant agrees to use and occupy the Premises for general office use, including related employee uses.
For purposes of clarification, nothing in this Lease shall be deemed to amend or modify the rights and obligations of the parties hereto under subsections 3(e)(iii)-(vi) of the Settlement Agreement in respect of Tenants’ right to reimbursement from Landlord for a portion of the costs of Tenant’s replacement of the HVAC units under the Settlement Agreement. Tenant hereby elects, and Landlord hereby agrees to pay, such reimbursement calculated as follows: (x) the amount of $31,653.19 (the “Reimbursable Amount”)1 payable in a note delivered to Tenant on or before the termination date of the Existing Lease with a principal balance equal to the Reimbursable Amount, a floating interest rate equal to the lesser of 6.5% per annum and the rate reported as the “National Prime Rate,” and thirty-six (36) monthly payments of equal principal plus accrued interest, such note to be substantially in the form attached hereto as Exhibit C.
In accordance with the Settlement Agreement Landlord and Tenant have entered into an agreement with an independent property manager for the Leased Premises (together with any successor agreement related to the management of the Leased Premises, the “Independent Property Management Agreement”) and, except as mutually agreed by the parties hereto, shall maintain an Independent Property Management Agreement in connection with the Maintenance Obligations of the Landlord and Tenant, respectively, under the Leased Premises. The Independent Property Management Agreement will be amended by the parties hereto and the Independent Property Manager thereunder to the extent required to conform to the provisions of this Lease as to management services to be provided in connection with the Leased Premises.
EXHIBIT A: Project Site Plan
EXHIBIT B: Leased Premises Floor Plan
1 This amount represents the total cost of replacement of HVAC units ($297,352.64) times 50% times 21.29% (the percentage of the existing leased premises which will not be included as Leased Premises under this Lease.)
ARTICLE II - PROJECT, LEASED PREMISES
In addition to the Late Charge, all sums due from the Tenant to the Landlord (including but not limited to Fixed Minimum Payment, Additional Rent and other charges that may become due under this Lease) shall bear interest at the default rate of two percent above the national prime rate announced in the Wall Street Journal, or if such newspaper no longer prints the national prime rate, the prime rate announced by Xxxxx Fargo Bank, N.A., but not to exceed twelve percent, such interest to accrue from ten (10) business days after the same is due from the Tenant to the Landlord and Tenant has received written notice from Landlord of such late payment. Notwithstanding the foregoing sentence, Tenant shall not be entitled to notice of a late payment more than three times in an Lease Year (as defined in Section 4.2 below). Landlord’s failure to assess the default interest on overdue payments shall not constitute a waiver of Landlord’s privilege to do so in the future.
ARTICLE III - CONSTRUCTION BY LANDLORD AND TENANT
SECTION 3.1 Landlord’s Improvements: Tenant is leasing the Premises in an “AS IS” condition, subject to Landlord’s obligations under the Settlement Agreement and the Independent Property Management Agreement.
ARTICLE IV - RENT, ITS DETERMINATION AND METHOD OF PAYMENT
ARTICLE V - COMMON AREAS, THEIR USE AND CHARGES
SECTION 5.1 Common Areas. Landlord shall make available within the Project such common areas (including but not limited to parking areas, driveways, truckways, delivery passages, truck-loading areas, access and egress roads, bus stops, and public rest rooms), as Landlord reasonably shall deem appropriate for retail and office space in this location. Landlord shall operate, manage, equip, police, light, repair and maintain the common areas for their intended purposes in such manner as Landlord shall in its reasonable discretion determine, and Landlord may from time to time change the size, location, nature and use of any common area and may make installations therein and move and remove the same; provided, however, no such improvements or removals shall have the effect of adversely affecting (a) access to the Leased Premises or the visibility of the Leased Premises or Tenant’s signage from West Center Road or 120th Street, or (b) Tenant’s available parking in the Project shall not be reduced below the minimum parking prescribed in Section 5.2 below (as to (a) and (b), the “Landlord Restrictions”). Landlord shall not construct any additional buildings in the Project without first receiving from Tenant written approval of such additional buildings. Tenant’s approval will not be unreasonably withheld or delayed unless in Tenant’s reasonable discretion, Tenant believes that such additional buildings will have the effect of violating the Landlord Restrictions.
portions of common areas, water and sewage charges, wages, unemployment taxes, social security taxes, personal property taxes, security fees for required licenses and permits, supplies, insurance expenses (casualty, liability, rental loss, excess or umbrella, and specialty) as Landlord deems prudent, reasonable management costs to be determined by Landlord (but not to exceed 4% of Fixed Minimum Rent), plumbing, roof repairs, costs of contractual arrangements for personnel services, and other reasonable costs which determined by Landlord in its reasonable discretion will benefit the Project and which are not Landlord’s responsibility under Section 6.2 or Section 7.1.
Any amounts of Pro Rata Share payable as Additional Rent for any calendar or tax year in which the Lease Term is not in effect shall be further reduced to reflect the pro rata portion of the calendar or tax year, as applicable, which is not part of the Lease Term. Landlord may elect to reasonably estimate the amount of Tenant’s Pro Rata Share of such operating costs which will be due from Tenant for any calendar year. Such estimated amounts (1/12 each month) shall be paid by Tenant concurrent with, and in addition to, the Fixed Minimum Rent provided for in this Lease. Following the end of the calendar year (and at the end of the Lease Term), when the Landlord provides the Tenant with the statement and computation relating to Building operating costs, Landlord shall return Tenant’s Pro Rata Share of any excess of the aggregate monthly payments toward such Building operating costs for such calendar year; or Tenant shall promptly pay to Landlord the excess of the amount due from Tenant under this paragraph for the calendar year over the Tenant’s aggregate monthly payment toward Tenant’s Pro Rata Share of the Building operating costs for such year. Tenant shall have the right to audit the operating costs of the Building; and Landlord agrees, upon demand, to furnish Tenant with all of Landlord’s books, documents, records, papers and files relating to the costs of operating and maintaining the common areas and the Building. If the results of the audit show an overcharge to Tenant greater than five percent (5%) of the actual proper charges, Landlord shall pay the costs of the audit and interest on the amount of such overcharge at the “Interest Rate” from the date paid until Tenant has been reimbursed by Landlord for such overcharge.
SECTION 6.2 Heating & Air Conditioning. Heating and air conditioning shall be thermostatically controlled in the Leased Premises.
If the heating and air conditioning equipment and systems servicing the premises also service other tenants in the Building then Tenant shall pay its “Proportionate Share” of the preventative maintenance and necessary repairs of such equipment. If HVAC replacement shall be required, as determined by the Independent Property Manager, Tenant shall pay its Proportionate Share of 50% of such cost. In addition Tenant shall pay 50% of any associated fees of the Independent Property Manager. The portion of such replacement costs and associated fees not payable by Tenant shall not be included in common area expenses under Sections 5.3 and 5.4.
If the heating and air conditioning equipment and systems exclusively serve Tenant’s Leased Premises then Tenant shall be solely responsible for the costs of and cause to be provided preventative maintenance and necessary repairs in order to keep such equipment during the term of this Lease and any extensions thereof in the condition required pursuant to the maintenance standard set forth in the Independent Property Management Agreement and Section 8.1D. If HVAC replacement shall be required, Tenant shall pay 50% of such cost. Tenant shall also pay 50% of any associated fees of the Independent Property Manager. The portion of such replacement costs and associated fees not payable by Tenant shall not be included in common area expenses under Sections 5.3 and 5.4.
ARTICLE VII - LANDLORD’S ADDITIONAL COVENANTS
SECTION 7.1 Repairs and Replacements by Landlord. Landlord covenants to keep or cause to be kept the structural elements of the Leased Premises, including without limitation, the foundation, roof and the structural soundness of the floors and walls thereof, in good order, repair and condition except for any damage thereon which is due to the negligence or misconduct of Tenant or its employees. All such repairs or necessary replacements incurred by Landlord under this Section 7.1 shall be paid by Landlord without reimbursement by Tenant. Landlord shall commence such repairs and replacements as soon as practicable after written notice from Tenant that the same are necessary. In the event, Landlord fails to promptly begin within fifteen days after such notice and to diligently pursue such repair, Tenant shall have the right to commence such repairs for the account of Landlord and to set off the amount of such repairs, along with interest thereon at the rate of nine percent (9%) per annum (the “Interest Rate”), from any payments of Minimum Fixed Rent or Additional Rent (together, “Rent”) or other amounts due to Landlord under this Lease. In the case of damage or destruction by fire or other casualty or by Eminent Domain, Landlord’s obligations hereunder are subject to the provisions of Article IX. Except as provided in this Section 7.1 and in Section 6.2. Landlord shall not be obligated to make repairs, replacements or improvements of any kind upon the Leased Premises, or to any equipment, facilities or fixtures contained therein. All repairs and replacements which are the responsibility of Landlord hereunder shall be effected in accordance with the terms of the Settlement Agreement and the Independent Property Management Agreement to the extent provided in Section 1.1N of this Lease.
A. Landlord, at all times during the term of this Lease and any other period of occupancy of the Leased Premises by Tenant, shall provide and maintain with respect to the building constituting the Leased Premises or in which the Leased Premises are located, fire and extended coverage insurance to the extent of at least the replacement value of such building.
B. Landlord, at all times during the term of this Lease and any other period of occupancy of the Leased Premises by Tenant, shall keep in force with respect to the common areas commercial general liability insurance in form customarily written for the protection of owners, landlords and tenants of real estate, with Landlord, its agents, and Tenant as named insureds, which insurance shall provide coverage of at least $2,000,000 combined single limit coverage plus a minimum of $500,000 for property damage, with excess liability coverage of $3,000,000. To the extent similarly provided in the insurance required to be carried by Tenant under this Lease, Landlord agrees to provide in the insurance required by this Lease to be carried by Landlord a mutual waiver of subrogation of claims by the insured against Tenant.
C. Tenant’s Pro Rata Share of all insurance expenses (casualty, liability, rental loss, excess or umbrella, and specialty) as Landlord deems prudent, shall be paid by Tenant as a portion of Additional Rent as allocated to Tenant in accordance with Section 5.4 in the same manner as if said expenses were common area expenses.
ARTICLE VIII - TENANT’S ADDITIONAL COVENANTS
A. To perform promptly all of the obligations of Tenant set forth in this Lease and in the Exhibits attached hereto; and to pay when due the Rent and all other charges, rates and other sums which by the terms of this Lease are to be paid by Tenant.
B. To use the Leased Premises only for the Permitted Uses as set forth in Section 1.1L.
C. To store all trash and refuse in appropriate containers within the Leased Premises and to attend to the daily disposal thereof in the manner designated by Landlord; to keep all drains inside the Leased Premises open; to conform to all reasonable and non-discriminatory rules and regulations which Landlord may make and uniformly enforce in the management and use of the Project, requiring such conformance by Tenant and Tenant’s employees.
D. Except for repairs and replacements required in Section 7.1 and Section 6.2 to be performed by or at the expense of Landlord, to provide maintenance and repair to non-structural elements of the Leased Premises, and replace when necessary, in order to keep the Leased Premises, equipment exclusively servicing the Leased Premises, facilities and fixtures therein (including all necessary painting and decorating), at Tenant’s expense, in the condition customarily used for other office premises in the same general geographic area, as specified in the Independent Property Management Agreement; and, at Tenant’s expense, to keep all glass, including that in windows, doors and skylights, clean and in good condition, and to replace any glass which may be damaged or broken with glass of the same quality, damage by fire or other casualty excepted.
E. To make all repairs, alterations, additions or replacement to the Leased Premises, including equipment, facilities and fixtures therein, required by any law or ordinance or any order or regulation of any public authority because of Tenant’s specific use of the Leased Premises; to keep the Leased Premises equipped with all safety appliances so required because of such use; to procure any
licenses and permits required for any such use; and to comply with the orders and regulations of all governmental authorities; provided that Tenant shall not be responsible for the cost of alterations and replacements needed to comply with this Paragraph E unless they are required solely by the nature of Tenant’s tenancy and are not otherwise required by users of commercial office space. Any alterations and replacements which are not Tenant’s obligation under this Paragraph E will be Landlord’s obligation under Section 7.1 above.
F. To pay promptly when due all taxes imposed upon its business operation and its personal property in the Leased Premises, and the entire cost of any work to the Leased Premises, including equipment, facilities and fixtures therein, undertaken by Tenant so that the Leased Premises shall at all times be free of liens for labor and materials; to procure all necessary permits before undertaking such work; to do all of such work in a good and workmanlike manner, employing materials of good quality; to comply with all governmental requirements (except as are Landlord’s obligation under this Lease); and to save Landlord harmless and indemnified from all injury, loss, claims or damage to any Person or property occasioned by or growing out of such work.
G. At its expense at all times during the Term of this Lease and any other period of occupancy of the Leased Premises by Tenant, to provide and maintain with respect to the Leased Premises general public liability insurance issued by companies with a Best rating of at least “B” in form customarily written for the protection of owners, landlords and tenants of real estate, with Landlord, its agents, and Tenant as named insureds, which insurance shall provide coverage of at least $2,000,000 combined single limit coverage plus a minimum of $500,000 for property damage, with excess liability coverage of $3,000,000. Tenant also shall carry such property coverage on Tenant’s property at the Leased Premises, including special coverages, as may be customary or appropriate with respect to Tenant’s business or as Landlord reasonably may require and which are customarily covered in an “All Risks” endorsement. The policies for all such insurance shall provide that they may not be canceled without at least thirty (30) days prior written notice to Landlord. To the extent similarly provided in the insurance required to be carried by Landlord under this Lease, Tenant agrees to provide in the insurance required by this Lease to be carried by Tenant a mutual waiver of subrogation of claims by the insured against Landlord.
H. To permit Landlord and its agents to enter the Leased Premises at reasonable times for the purpose of inspecting the same or of making repairs to the building in which the same are located; and to show the Leased Premises to prospective purchasers, lenders, investors, co-owners, real estate brokers, government employees, appraisers and, during the last six (6) months of the Lease Term, to prospective tenants.
I. To the extent permitted by applicable law, to pay on demand Landlord’s expenses, including reasonable attorney’s fees, incurred in enforcing any obligation of the Tenant under this Lease or in curing any default by Tenant under this Lease.
J. At the termination of this Lease, (i) to surrender the Leased Premises in broom clean condition, subject to ordinary wear and tear, and in the condition resulting from the performance by Tenant of its Maintenance Obligations, as defined herein; (ii) to remove such of Tenant’s goods and effects as are not permanently affixed to the Leased Premises unless prevented from so doing because of the Landlord’s claim of lien; (iii) to repair any damage caused by the removal of any Tenant alterations and additions which Tenant is permitted to remove; and (iv) peaceably to yield up the Leased Premises and all alterations and additions thereto (except such as Tenant is permitted under this Lease to remove) and all fixtures, furnishings, floor coverings and equipment which are permanently affixed to the Leased Premises, which shall thereupon become the property of Landlord. Any personal property of Tenant not removed within 5 days following such termination shall become the property of Landlord, at Landlord’s option
K. This Lease shall be subject and subordinate to any mortgages or trust deeds that may hereafter be placed upon the Project and the Leased Premises and to any and all advances to be made thereunder, and to the interest thereon, and all renewals, replacements, consolidations and extensions thereof, provided the mortgagee or trustee named in said mortgages or trust deeds shall agree to
recognize the Lease of Tenant in the event of foreclosure so long as the Tenant is not in default; that Tenant shall execute and deliver such instruments reasonably acceptable to Tenant and the mortgagee or trustee which may be required for such purposes; provided that Landlord shall pay the amount of $250 for any estoppel or subordination non-disturbance agreement which is requested from Tenant in excess of one of each such agreement per Lease Year.
L. (1) Tenant shall pay in each calendar year during the Term of this Lease, as a part of Additional Rent, Tenant’s Pro Rata Share of the real estate ad valorem taxes, including but not limited to special assessments (but excluding special assessments related to new buildings in the Project or other improvements for the specific use of any tenant other than Tenant) which are due and payable within such calendar year with respect to the entire land and improvements within the Project.
(2) Tenant shall pay to Landlord, concurrently with Tenant’s payments of monthly installments of the Fixed Minimum Rent, one-twelfth (1/12) of Tenant’s estimated tax participation for the current Lease Year, as determined annually and communicated to Tenant in writing by Landlord. Tenant shall pay to Landlord any unpaid portion of its actual tax participation for such tax year or shall be entitled to a credit from Landlord for any excess tax participation actually paid by Tenant for such tax year.
(3) Within sixty (60) days of receipt by Landlord of the current tax year bills, Landlord will certify to Tenant the amount of taxes per square foot and the amount due from Tenant, if any. Within thirty (30) days after receipt of such notice from Landlord, Tenant will pay to Landlord any amount stated therein to be due.
(4) For the purpose of this Lease, the term “tax year” shall be construed to mean the twelve (12) month period established as the real estate tax year by the taxing authorities having lawful jurisdiction over the Project.
M. To remain fully obligated under this Lease notwithstanding any assignment or sublease or any indulgence granted by Landlord to Tenant or to any assignee or sublessee.
N. To give any mortgagee and/or trust deed holder with whom Tenant has entered into a subordination non-disturbance agreement, by registered mail, a copy of any notice of default served upon the Landlord, provided that prior to such notice Tenant has been notified, in writing, (by way of Notice of Assignment of Rents and Leases, or otherwise) of the address of such mortgagee and/or trust deed holder. Tenant further agrees that if Landlord shall have failed to cure such default within the time provided for in this Lease, then the mortgagees and/or trust deed holders shall have an additional ten (10) days within which to cure such default or if such default cannot be cured within that time, then such additional time not to exceed an additional sixty (60) days as may be necessary if within such ten (10) days, any mortgagee and/or trust deed holder has commenced and is diligently pursuing the remedies necessary to cure such default), in which event this Lease shall not be terminated while such remedies are being so diligently pursued.
O. Assume all responsibility for the protection of the Leased Premises, Tenant, its agents and invitees and their property from the acts of third parties except to the extent covered under any liability insurance required to be provided by Landlord under this Lease. In the event, however, that Landlord shall elect to provide security services, then the cost thereof shall be included as part of the common area maintenance expenses and billed in accordance with Section 5.4.
A. Not to make any alterations or additions other than the original interior plans and future non-structural alterations with a cost of less than $50,000 each, nor permit the painting or placing of any exterior signs, placards or other advertising media, banners, pennants, awnings, aerials, antennas, or the like, without on each occasion obtaining prior written consent of Landlord.
B. Not to assign, sell, mortgage, pledge or in any manner transfer this Lease or any interest therein, or sublet the Leased Premises or any part or parts thereof, or permit occupancy by anyone with, through or under Tenant; provided, however, Tenant may: (i) assign this Lease or sublease the Leased Premises to a third party with Landlord’s written approval, or (ii) assign this Lease without Landlord’s consent to any entity with which Tenant is merged or consolidated; and, provided Tenant has engaged in such lease assignments or subletting at a majority of its stores within the State of Nebraska, Tenant may assign this Lease or sublet a portion or all of the Demised Premises to a parent, subsidiary, or affiliate of Tenant without consent from Landlord. Such approval shall not be arbitrarily withheld, but in the event of any such assignment or subletting Tenant shall remain primarily liable to Landlord for the performance of Tenant’s obligations under this Lease. Upon request for any assignment or subletting, Tenant shall provide such financial and other information as Landlord may request on the prospective new tenant and its intended use of the Premises and $1,000 to cover time and expenses related to reviewing such information and related legal work. Tenant and the prospective tenant shall execute such assignment, sublease and/or attornment agreement as Landlord may reasonably request. Any excess amounts paid by the assignee or subtenant on account of the assignment or sublease above the Fixed Minimum Rent and Additional Rent called for in this Lease shall belong to Landlord.
C. Without the prior written consent of Landlord, not to operate or use, or permit or suffer to be operated or used, all or any part of the Leased Premises for any purpose other than the Permitted Uses which would violate any provisions contained in any other lease of a portion of the Project to which Landlord may be a party which gives the tenant under such lease the exclusive right to conduct a particular type of business in the Project; provided Tenant has received written notice from Landlord of such provisions on or before the date of any requested change in the Permitted Uses by Tenant, its successors or assigns, or, as to any assignment or subletting which requires Landlord’s consent, prior to the date of the request for consent to such assignment or subletting. This subsection shall not modify, affect, nullify, abrogate, cut down or derogate from any other provision of this Lease.
D. Not to suffer any mechanic’s lien to be filed against the Leased Premises by reason of any work, labor, services or materials performed at or furnished to the Leased Premises, to the Tenant, or to anyone holding the Leased Premises through or under the Tenant. If any such mechanic’s lien shall at any time be filed against the Leased Premises, the Tenant shall forthwith cause the same to be discharged of record by payment, bond, order of a court of competent jurisdiction or otherwise, but the Tenant shall have the right to contest any and all such liens. If the Tenant shall fail to cause such lien to be discharged within thirty (30) days after being notified of the filing thereof and before judgment or sale thereunder, then, in addition to any other right or remedy of the Landlord, upon five days written notice to Tenant the Landlord may, but shall not be obligated to, discharge the same by paying the amount claimed to be due or by bonding or other proceeding deemed appropriate by the Landlord, and the amount so paid by the Landlord and all costs and expenses, including reasonable attorney’s fees, incurred by the Landlord in procuring the discharge of such lien, shall be deemed to be a part of Additional Rent for the Leased Premises and shall be due and payable by the Tenant to the Landlord on the first day of the next following month. Nothing in this Lease contained shall be construed as consent on the part of the Landlord to subject the Landlord’s estate in the Leased Premises to any lien or liability under the lien laws of the State in which the Leased Premises are located.
ARTICLE IX - DAMAGE AND DESTRUCTION; CONDEMNATION
SECTION 9.1 Fire or Other Casualty.
A. In the event the Leased Premises should be damaged by fire, explosion or other casualty or occurrence covered by Landlord’s insurance to an extent which shall be 25 per cent or less of the cost of replacement of the Leased Premises, the damage shall promptly be repaired by Landlord at Landlord’s expense provided that Landlord shall not be obligated to expend for such repair an amount in excess of the insurance proceeds recovered as a result of such damage plus any applicable deductible amount; provided that Landlord shall not be excused from its repair obligation as a result of the failure of Landlord to maintain the insurance required by this Lease or as a result of the deductible amount for such insurance. In no event shall Landlord be required to repair or replace Tenant’s stock in trade, fixtures, furnishings, or floor coverings and equipment.
B. In the event the Leased Premises should be damaged by fire, explosion or any other casualty or occurrence and (a) such casualty or occurrence shall be of a type not covered by Landlord’s insurance required under this Lease, or (b) (i) the Leased Premises or the Building should be damaged to the extent of more than 50 per cent of the cost of replacement therefor, or (ii) if more than one building in the Project, the buildings (taken in the aggregate) in the Project should be damaged to the extent of more than 25 per cent of the cost of replacement thereof, notwithstanding the fact that the Leased Premises may be so damaged to an extent which shall be 50 per cent or less of the cost of replacement thereof, Landlord may elect to repair or rebuild the Leased Premises or the Building or buildings or to terminate this Lease upon giving notice of such election in writing to Tenant within 30 days after the happening of the event causing the damage. Notwithstanding the foregoing, if the casualty occurrence is a result of damage to the Leased Premises or the Building, and the cost of repair of such damage does not exceed 50% of the cost of replacement therefor, and the Term of the Lease, after giving effect to the exercise by Tenant of any option to renew, is two years or more, Landlord shall not exercise such termination rights.
C. If the casualty, repairing, or rebuilding (whether under Subsection A or B hereof) shall render the Leased Premises untenantable, in whole or in part, a proportionate abatement of the Fixed Minimum Rent shall be allowed (however the rent shall continue to the extent of any rental loss insurance then in effect) from the date when the damage occurred until the date Landlord completes the repairs or rebuilding and so notifies the Tenant or, in the event Landlord elects to terminate the Lease, until said date of termination, which shall be not less than 30 days nor more than 60 days after said notice, said proportion to be computed on the basis of the relation which the gross square foot area of the space rendered untenantable bears to the Floor Space of the Leased Premises. If Landlord is required or elects to repair the Leased Premises as herein provided, Tenant shall repair or replace its stock in trade, fixtures, furniture, furnishings, floor coverings and equipment.
D. Notwithstanding the foregoing, in the event (i) the Leased Premises are damaged to the extent the Leased Premises and parking in the Project are not adequate for Tenant’s needs, and (ii) such damaged area cannot be or is not restored within 120 days of such event of destruction, or (iii) the Lease is in the last year of the Term, Tenant shall be entitled, at Tenant’s option, to terminate the Lease.
All compensation awarded for any taking under the power of eminent domain, whether for the whole or a part of the Leased Premises, shall be the property of Landlord, whether such damages shall be awarded as compensation for diminution in the value of, or loss of, the leasehold or for diminution in the value of, or loss of, the fee of the Leased Premises, or otherwise, and Tenant hereby assigns to Landlord all of Tenant’s right, title and interest in and to any and all such compensation; provided, however, that Landlord shall not be entitled to any award made to Tenant for loss of business, or depreciation of and cost of removal of stock and fixtures.
ARTICLE X - DEFAULT BY THE TENANT AND REMEDIES
ARTICLE XI - DEFAULT BY LANDLORD
SECTION 11.1 Except in the case of an emergency situation presenting the risk of harm to Persons or property, the Landlord shall have thirty (30) days after its receipt of a notice of default, to cure any default in its obligations hereunder. In the event the default cannot be cured within thirty (30) days, Landlord shall not be in violation of this Lease if Landlord begins to correct the default within said thirty (30) day period and continues with reasonable diligence to remedy the same thereafter. In the event that such default is not cured within such cure period, Tenant shall have the right to cure the default for the account of Landlord. Tenant shall have the right, in addition to other remedies, to offset the amount so expended, plus interest at the lnterest Rate from the date expended, from all amounts of Fixed Annual Rent, Additional Rent or other amounts due to Landlord hereunder until paid in full.
ARTICLE XII - LIMITATIONS AND EXEMPTIONS ON LANDLORD’S LIABILITY
SECTION 12.1 The obligations of Landlord under this Lease shall not constitute personal obligations of Landlord or its partners, and Tenant shall look to the Project and Landlord’s interest therein, and not to other assets of Landlord, for the satisfaction of any liability of Landlord with respect to this Lease, and shall not seek recourse against Landlord’s partners or any of their personal assets for such satisfaction.
ARTICLE XIII - HAZARDOUS SUBSTANCES
SECTION 13.1
F. Landlord’s Obligations. Landlord represents that Landlord has no knowledge, actual or imputed, of the existence of any Hazardous Substances at the Project or the Shopping Center as of the Rent Commencement Date. Landlord shall indemnify, defend (by counsel acceptable to Tenant) and hold harmless Tenant and each of Tenant’s directors, officers, employees, agents, successors, and assigns, from and against any and all claims, liabilities, penalties, fines, judgments, forfeitures, losses, cleanup, remediation, detoxification, costs or expenses (including reasonable attorney’s fees, consultants’ fees, and expert fees) for the death of or injury to any Person or damage to any property whatsoever, arising from or caused in whole or in part, directly or indirectly, by (a) the presence in, on, under, or about the Leased Premises, Building or Shopping Center, or any discharge or release in or from the Leased Premises, Building, or Shopping Center, of any Hazardous Substances, except to the extent that any such presence, discharge, or release is caused by Tenant’s activities on the Leased Premises, Building, or Shopping Center from the date Tenant took possession of the Leased Premises under the Existing Lease, or (b) Landlord’s failure to comply with any law regulating Hazardous Substances. Landlord and its permittees shall not store, generate or discharge any Hazardous Substances on or about the Shopping Center, except for those Hazardous Substances commonly used in the maintenance of the Shopping Center, and then only in such quantities and to the extent allowed under applicable laws and regulations. Landlord’s obligations shall include, but not be limited to, the effects of any contamination or injury to Person, property or the environment created or suffered by Landlord or its predecessesors, and the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of the Lease. No termination, cancellation or release agreement entered into by Landlord and Tenant shall release Landlord from its obligations under this Lease with respect to Hazardous Substances, unless specifically so agreed by Tenant in writing at the time of such agreement.
ARTICLE XIV - CONTINUOUS OCCUPANCY
SECTION 14.1 Notwithstanding anything herein to the contrary, if Tenant intends to cease to occupy the Leased Premises for any purpose other than for temporary repairs or remodeling (to “Go Dark”), Tenant may do so by giving three (3) months prior written notice (“Go Dark Notice”) of Tenant’s intent to Go Dark. The written notice shall project a date on or about which Tenant intends to Go Dark. The date on which Tenant Goes Dark shall be the “Going Dark Effective Date”. If Tenant gives Landlord a Go Dark Notice, Landlord may elect to terminate and cancel this Lease (“Recapture”) by giving Tenant notice of recapture (the “Recapture Notice”) at any time after the Go Dark Notice, and recapture the Premises within sixty (60) days after the date of Landlord’s Notice. Upon such Recapture, all obligations of Tenant under this Lease shall terminate. Going Dark shall not constitute an Event of Default under this Lease, and Landlord’s right of termination hereunder or right to collect Fixed Minimum Rent and Additional Rent thereafter are Landlord’s sole remedies in the event Tenant elects to Go Dark.
ARTICLE XV - MISCELLANEOUS PROVISIONS
A. The term “Affiliate” means, with respect to any Person, any Person which controls or is controlled by the Person in question or is controlled by the same Persons which shall then control the Person in question and any Person which is a member with the Person in question in a relationship of joint venture, partnership or other form of business association concerning or which in any way concerns the subject matter involved; the term “control” means, with respect to a corporation, the ownership of stock possessing, and of the right to exercise, at least twenty-five per cent (25%) of the total combined voting power of all classes of stock of the controlled corporation, issued, outstanding and entitled to vote for the election of directors, whether such ownership be direct ownership or indirect ownership through control of another corporation or corporations or any other entity.
B. The term “Floor Space” means the actual number of square feet of floor space in the Leased Premises or in other premises in the Project (including, without limitation, any space on mezzanines) within the exterior faces of the walls surrounding all floors, or parts of any thereof, with respect to the premises in question, or, if the Leased Premises are not surrounded by walls, then within the building line, except that with respect to a wall or partition between (i) space occupied by two or more separate occupants, or (ii) space occupied by an occupant and space inside any building which is included within any common area, in each such case the center of the wall or partition in question shall be used instead of the exterior face thereof. No deduction or exclusion shall be made from Floor Space otherwise computed by reason of stairs, elevators, escalators, interior partitions or other interior construction of equipment.
C. The term “Landlord” as used in this Lease shall mean, at a given time, the owner or owners, collectively, for the time being (a) of the fee of all or any portion of the Project, and any successor or assignee thereof, but (b) so long as there is then a lease of the fee of all or substantially all of the Project, the lessee there under and not the owner of the fee; it being intended and agreed that in a case where this (b) is applicable, such owner of the fee shall not be personally liable for the obligations of Landlord but such lessee shall be so personally liable. If any such Person, firm or corporation so a “Landlord” shall sell or transfer the fee, or the leasehold interest, the ownership of which so makes him or it a Landlord, he or it, as such grantor or transferor, shall thereafter be entirely relieved of all terms, covenants and obligations thereafter to be performed by Landlord under this Lease; provided (i) that any amount then due and payable to Tenant or for which Landlord or the then grantor or transferor would then owe to Tenant shall be paid to Tenant, (ii) any funds then in the hands of Landlord or the then grantor or transferor in which Tenant has an interest shall be turned over, subject to such interest, to the then grantee or transferee, (iii) such transferee shall assume all obligations of Landlord under this Lease, and (iv) written notice of such transfer and assumption shall be delivered to Tenant.
C. The term “Person” as used herein means a natural person, firm, partnership, association or corporation, as the case may be.
D. The term “Rent” as used herein means Fixed Minimum Rent and Additional Rent.
LANDLORD: | A.G. REALTY COMPANY | |||||
a Nebraska Limited Partnership | ||||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||||
Xxxxxx X. Xxxxxxx, General Partner | ||||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||||
Xxxxxx X. Xxxxxxx, General Partner | ||||||
By: | /s/ Xxxxxx Xxxxx | |||||
Xxxxxx Xxxxx, General Partner | ||||||
TENANT: | GORDMANS, INC. | |||||
a Delaware Corporation | ||||||
By: | /s/ Xxxx Xxxxxxx | |||||
Xxxx Xxxxxxx, Chairman, President, CEO |
STATE OF NEBRASKA) | ||
) SS | ||
COUNTY OF XXXXXXX) |
The foregoing instrument was acknowledged before me this 22 day of July, 2008, by Xxxxxx X. Xxxxxxx, General Partner, on behalf of A.G. Realty Partnership.
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Notary Public | ||||
My Commission Expires: | ||||
1/10/2012 |
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STATE OF NEBRASKA) |
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) SS | ||
COUNTY OF XXXXXXX) |
The foregoing instrument was acknowledged before me this 18th day of July, 2008, by Xxxxxx X. Xxxxxxx, General Partner, on behalf of A.G. Realty Partnership.
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Notary Public |
My Commission Expires: 7/3/10 |
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STATE OF NEBRASKA) | ||
) SS | ||
COUNTY OF XXXXXXX) |
The foregoing instrument was acknowledged before me this day of , 2008, by Xxxxxx Xxxxx, General Partner, on behalf of A.G. Realty Partnership.
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Notary Public | ||||||
My Commission Expires: | ||||||
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
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County of | Los Angeles |
On |
7/21/08 |
before me, | Xxxxxxx Xxxxx Xxxxx, Notary Public |
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Date | Here Insert Name and Title of the Officer |
personally appeared | XXXXXX XXXXX |
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Name(s) of Signer(s) |
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, |
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who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
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I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
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Signature |
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Place Notary Seal Above | Signature of Notary Public |
OPTIONAL | ||||
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: | Amended and Restated Sublease Agreement |
Document Date: |
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Number of Pages: | 28 |
Signer(s) Other Than Named Above: | Xxxxxx X . Xxxxxxx, Xxxxxx X . Xxxxxxx, Xxxx Xxxxxxx |
Capacity(ies) Claimed by Signer(s)
Q2007 National Notary Association — 0000 Xx Xxxx Xxx., X.X. Xxx 0000 — Xxxxxxxxxx, XX 00000-0000 — xxx.XxxxxxxxXxxxxx.xxx Item #5907 Reorder: Call Toll-Free 0-000-000-0000
STATE OF NEBRASKA) | ||
) ss | ||
COUNTY OF XXXXXXX) |
The foregoing instrument was acknowledged before me this 18th day of July, 2008, by Xxxx Xxxxxxx, the Chairman, President, and CEO of Gordmans, Inc., Tenant of the above and foregoing Lease.
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Notary Public |
My Commission Expires: |
12/18/10 |
Notary Public |
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