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Exhibit 10.9
LEASE AGREEMENT
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This Lease, made and entered into this 29th day of September, 1999 by
and between BRC Properties Inc., an Ohio corporation, hereinafter called
"Landlord," and Dominion Homes, Inc., an Ohio Corporation, hereinafter called
"Tenant".
WITNESSETH:
In consideration of the mutual covenants and agreements set forth in
this Lease, Landlord and Tenant do hereby covenant and agree as follows:
1. DESCRIPTION OF PREMISES
Landlord does hereby lease to Tenant, and Tenant does hereby rent from
Landlord, upon and subject to the terms, conditions, covenants and agreements
set forth in this Lease, the premises, hereinafter referred to as the "Premises"
consisting of approximately 1,350 square feet of space in the shopping center
known as Karric Square at Dublin Shopping Center located in the City of
Columbus, County of Franklin, State of Ohio, hereinafter referred to as the
"Shopping Center," said Premises being highlighted in yellow on Exhibit "A"
attached hereto for the purpose of more specifically locating the Premises in
said Shopping Center and being further identified as 0000 Xxxxxx Xxxxxx Xxxxx.
The term "Shopping Center" wherever used herein shall be deemed to mean
the entire area owned by Landlord as shown on said Exhibit "A," as the same may
from time to time be increased by the addition of the other lands, and the
entire development on said area, including any and all structures, parking
facilities and common facilities built thereon, or as the same may from time to
time be reduced by eminent domain takings or dedication to public authorities.
2. TERM
(a) This Lease shall continue in force for a term of 60 months (the
"Term") commencing: UPON THE DATE THE TENANT OPENS FOR BUSINESS OR JANUARY 1,
2000, WHICHEVER IS EARLIER; and ending on DECEMBER 31, 2004, unless sooner
terminated as provided herein.
(b) Tenant shall at the request of Landlord execute a declaration
specifying the Commencement Date of the Term. Rental under this Lease shall not
commence until such Commencement Date, as specified in said declaration of
commencement.
3. RENT
(a) Fixed Base Rent - Tenant hereby covenants and agrees to pay to
Landlord as "Fixed Base Rent" for the Premises during the entire Term, without
any deductions or setoff whatsoever, the sum of (SEE RENT INDICATED BELOW)
Dollars ($ ) per year, in equal monthly installments of Dollars ($ ) in advance,
on the first day of each and every calendar month throughout the Term. All
payments required to be made by Tenant to Landlord, under this Lease shall be
made to Karric Square Shopping Center, c/x Xxxxxxx Click Xxxxxx, Inc.,
Department L-1384, Xxxxxxxx, Xxxx 00000 or at such other place as Landlord may
from time to time designate in writing.
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Year Rate/SF Annual Monthly
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1 $10.50 $14,175.00 $1,181.25
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2 $11.00 $14,850.00 $1,237.50
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3 $11.00 $14,850.00 $1,237.50
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4 $11.00 $14,850.00 $1,237.50
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5 $11.50 $15,525.00 $1,293.75
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4. LANDLORD'S AND TENANT'S IMPROVEMENTS
Landlord agrees that it shall, at its own cost and expense perform the
work and make the installations in the Premises which are designated as
Landlord's Improvements in Exhibit "B" attached hereto and made a part hereof.
Tenant shall prepare and submit to Landlord, for approval, preliminary
design drawings of Tenant's Work, as provided in Exhibit "C". If Landlord shall
notify Tenant of any objections to such design drawings, Tenant shall make the
necessary revisions to Landlord's reasonable satisfaction and promptly resubmit
the same after such notice. Landlord's approval shall be evidenced by
endorsement to that effect on one (1) set of the design drawings, one (1) set to
be retained by Landlord and one (1) set by Tenant.
Tenant agrees to require his subcontractor(s) to provide for removal of
construction debris at Tenant's sole expense and in the manner consistent with
any directives provided by Landlord or Landlord's construction supervisory
personnel.
5. USE OF PREMISES
(a) The Premises shall be used and occupied by Tenant during the entire
Term hereof, subject to the conditions herein contained for: CUSTOMARY OFFICE
USE OF A HOME BUILDER.
(b) Tenant agrees that it will not use, or permit or suffer the use of
the Premises, or any part thereof, for any other business or purpose.
(c) Tenant further agrees that in the use and occupation of the
Premises and in the prosecution or conduct of its business therein, Tenant shall
comply with all requirements of all laws, ordinances, orders and regulations of
the federal, state, county and municipal authorities now in force, or which
hereinafter may be in force, and with any direction or certificate of occupancy
issued pursuant to any law by any public officer or officers. Tenant further
covenants and agrees that it will comply with and abide by all protective
covenants, restrictions, and other recorded documents pertaining to the Shopping
Center and the Premises, and the Tenant's use of the Premises is limited by all
such protective covenants,
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restrictions, and other recorded documents Tenant covenants and agrees that it
shall not use or permit to be used any part of the Premises for any dangerous,
noxious or offensive trade or business and will not cause or maintain any
nuisance in, at or on the Premises, and the land upon which it is situated.
(d) Tenant shall use and occupy the Premises in a careful, safe and
proper manner and shall keep the Premises in a clean and safe condition in
accordance with this Lease and local ordinances and the lawful directions of
proper public officers. Tenant shall use and maintain the Premises consistent
with reasonable standards of good shopping center operations, and Tenant shall
not permit solicitations, demonstrations, itinerant vending or any other
activities inconsistent with such standards. Tenant shall not use or permit the
Premises to be used for any disreputable or immoral purpose or in any way that
will injure the reputation of the Shopping Center. Tenant agrees that it will
not do or suffer to be done, or keep or suffer to be kept, anything in, upon or
about the Premises which will contravene Landlord's policies insuring against
loss or damage by fire or other hazards, or which will prevent Landlord from
procuring such policies in companies acceptable to Landlord or cause
cancellation of insurance of Landlord or any other tenant of the Shopping
Center; and if anything done, omitted to be done or suffered to be done by the
Shopping Center or any part thereof to be increased beyond the minimum rate
which would be applicable for the least hazardous use of the Premises permitted
by law, Tenant shall pay the amount of such increase to Landlord promptly upon
Landlord's demand.
(e) Tenant shall not obstruct the Common Areas (hereinafter defined)
and shall refrain from committing any act or thing upon the Premises or the
Common Areas which disturbs the quiet enjoyment of any other tenant of the
Shopping Center or inhibits or detracts from Landlord's ability to lease other
parts of the Shopping Center.
(f) Tenant shall not permit the accumulation of rubbish, trash, garbage
and other refuse in and around the Premises. Garbage and trash receptacles may
be placed only in areas designated by Landlord and Landlord shall have the right
to designate and control the type and size of such garbage and trash receptacles
that may be used by Tenant.
(g) Tenant shall be required to install an exterior sign on the
Premises which conforms to the sign criteria attached hereto as Exhibit "D", and
which sign shall be placed only in such locations as are previously approved in
writing by Landlord. Notwithstanding the specifications in Exhibit "D", attached
hereto, all signs to be installed by Tenant are subject to the prior written
approval of Landlord, and plans and specifications for each sign must be
submitted to Landlord in quadruplicate for each approval. The plans and
specifications for Tenant's canopy sign must be submitted within thirty (30)
days after execution of this Lease by Tenant. It is understood and agreed that
the approved canopy sign must be installed and operational prior to Tenant
opening to the public for business. Tenant shall not place, erect or maintain,
or suffer to be placed, erected or maintained on the doors or on any exterior
surface of the Premises, or in any vestibule, or anywhere in the Shopping Center
outside of the Premises, nor in any area inside the Premises which can be seen
from the outside of the Premises, any sign, lettering, decoration or advertising
without the prior written consent of Landlord.
(h) Tenant shall permit no waste, damage or injury to the Premises and
Tenant shall initiate and carry out a program of regular maintenance of the
Premises including the painting or refinishing of all areas of the interior and
store front so as to impede, to the extent possible, deterioration by ordinary
wear and tear and to keep the same in attractive condition.
(i) Tenant shall at all times during the Term observe and comply with
the rules, regulations and covenants as may be published and amended from time
to time by Landlord for the
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safety, care and cleanliness of the Shopping Center and the Premises and the
preservation of good order therein.
(j) Tenant shall refrain from distributing any handbills or other
advertising matter on or about any part of the Shopping Center, and shall not
use any sidewalks, walkways or areaways of the Shopping Center for the sale of
merchandise or any business, occupation or undertaking.
6. COMMON AREAS
(a) The term "Common Areas" shall be deemed to mean such areas,
improvements, space, equipment and special services in or at the Shopping Center
as determined by Landlord from time to time to be devoted to the general usage
of all the tenants of the Shopping Center and their employees, customers and
other invitees.
(b) The use by Tenant of the Premises shall include the use, in common
with the others entitled thereto, of the Common Areas as may be designated from
time to time by Landlord, subject however to the terms and conditions of this
Lease and to rules and regulations for the use thereof as prescribed from time
to time by the Landlord.
(c) In addition to the Fixed Base Rent set herein, Tenant agrees to pay
to Landlord at the times and in the manner hereinafter provided, a pro rata
share of the Net Costs (hereinafter defined) paid or incurred by Landlord or its
designated agent in the operation, direct management, maintenance and repair of
the Common Areas, including, but not limited to, parking areas, roofs, canopies,
exterior of outside walls of building(s), access roads, driveways, entrances and
exits, landscaped areas, pathways, storm water system, accommodation areas such
as sidewalks, grass plots, ornamental planting, entry monuments and signs,
directional signals, public lighting and the like; and any and all additional
maintenance costs including utilities, wages, accounting costs, management fees,
electric, security, cleaning, snow removal and trash removal. The Common Areas
shall not include the foundation or structural portions of the buildings located
within the Shopping Center.
Tenant's pro rata share of such Net Costs shall be that percentage
factor computed by dividing the total square feet of the Premises by the total
square feet of leasable space in the Shopping Center.
(d) For the purpose of this Section 6 the term "Net Costs" is hereby
defined to mean Landlord's total costs incurred in operating, managing,
equipping, lighting, repairing, insuring and maintaining the Common Areas plus a
reasonable amount for depreciation of equipment actually used and excluding (if
otherwise included therein) capital costs, interest and real property taxes or
assessments.
(e) Tenant's pro rata share of such Net Costs shall be determined on an
annual basis for each twelve (12) month period ending on December 31st,
prorating fractional years. Tenant's pro rata share of such annual Net Costs
shall be estimated by Landlord at the beginning of the Term hereof, and at the
beginning of each calendar year thereafter and a monthly rate determined, and
Tenant shall pay to Landlord such estimated charge in advance on the first day
of each month throughout the Term of this Lease; provided however that within
sixty (60) days after the end of each calendar year the Landlord or its
designated agent shall determine its costs for such calendar year (and Tenant's
share thereof), and furnish a copy of such computations in writing to the
Tenant. If the payments made by the Tenant in such calendar year exceed Tenant's
pro rata portion of such Net Costs, Tenant shall be credited the amount of any
overpayment, such credit to be applied against the
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estimated Net Costs for the then-current year. If Tenant's pro rata portion of
such Net Costs exceeds the payments made in such calendar year by the Tenant,
then Tenant shall pay the difference to the Landlord or its designated agent.
Such payment to the Landlord or its designated agent shall be made within
fourteen (14) days after Tenant's receipt of Landlord's written statement of the
Tenant's share of Net Costs for the preceding year.
(f) Landlord shall have the right to close any or all portions of the
Common Areas to such extent as may, in the opinion of Landlord's counsel, be
legally sufficient to prevent a dedication thereof or the accrual of any rights
to any person or to the public therein and to close temporarily, if necessary,
any part of the Common Areas in order to discourage noncustomer parking.
Landlord shall have the right from time to time to establish, modify and enforce
rules and regulations with respect to all Common Areas. Tenant agrees to abide
by and conform with such rules and regulations, including, but not limited to,
rules and regulations as to parking of employees' cars, making deliveries, and
traffic control.
7. TAXES AND INSURANCE
(a) Taxes
(1) Tenant covenants and agrees to pay to Landlord its
proportionate share of all real property taxes and special assessments, which
may be levied or assessed for each calendar year during the entire Term, against
the land and buildings comprising the Shopping Center or relating to the
operation or use thereof and service and/or special payments in lieu of taxes
required to be paid by Landlord. Tenant's proportionate share shall be equal to
that portion of such taxes and assessments equal to the product obtained by
multiplying such taxes, assessments and payments by a fraction, the numerator of
which shall be the number of square feet of space in the Premises and the
denominator of which shall be the total number of square feet of leasable space
in the Shopping Center. Should the state in which the Shopping Center is located
or any political subdivision thereof or any governmental authority having
jurisdiction over the Shopping Center impose a tax or assessment (other than an
income or franchise tax) either upon or against the rentals payable by tenants
in the Shopping Center to Landlord or upon or against the business of renting
land or buildings, either by way of substitution for the taxes and assessments
levied or assessed against such land and buildings, or in addition thereto, such
tax or assessment shall be deemed to constitute a tax or assessment against such
land and buildings for the purpose of this Section 7.
(2) Tenant's proportionate share of all such taxes and
assessments during the Term shall be paid to Landlord, as additional rent, in
monthly installments on or before the first day of each calendar month, in
advance, in an amount estimated by Landlord. Upon receipt of all tax bills and
assessments attributable to any calendar year during the Term, Landlord shall
furnish Tenant with a written statement of the actual amount of Tenant's
proportionate share of taxes and assessments for such year. If the total amount
paid by Tenant under this Section 7 for any calendar year during the Term shall
be less than the actual amount due from Tenant for such year, as shown on such
statement, Tenant shall pay to Landlord the difference between the amount paid
by Tenant and the actual amount due, such deficiency to be paid within ten (10)
days after demand therefor by Landlord; and if the total amount paid by Tenant
hereunder for any calendar year shall exceed such actual amount due from Tenant
for such calendar year, Tenant shall be credited the amount of any overpayment,
such credits to be applied against the estimated taxes and assessments for the
then-current year. All amounts due hereunder shall be payable to Landlord at the
place where the Fixed Base Rent is payable. For the calendar years in which this
Lease commences and terminates the provisions of this Section 7 shall apply, and
Tenant's liability for its proportionate share of any taxes and assessments for
such years shall be subject to a pro rata adjustment based on the number of days
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of said calendar years. A copy of a tax xxxx or assessment xxxx submitted by
Landlord to Tenant shall at all times be sufficient evidence of the amount of
taxes or assessments assessed or levied against the property to which such xxxx
relates. At or about the Commencement Date of this Lease and from time to time
thereafter throughout the Term, Landlord shall notify Tenant in writing of
Landlord's estimate of Tenant's monthly installment due hereunder.
(b) Insurance
(1) Tenant covenants and agrees to pay to Landlord its
proportionate share of the following types of insurance:
(i) Fire, lightening, windstorm, hail, explosion,
earthquake and extended coverage insurance with such
other endorsements as Landlord shall deem appropriate
in such amounts as Landlord shall deem sufficient up
to one hundred percent (100%) of the full replacement
cost of the building(s) and service equipment in the
Shopping Center. Such policy or policies may also
include rents insurance coverage for a six (6) month
period; and
(ii) Public liability and property damage insurance
insuring Landlord against claims for personal injury,
death or property damage occurring upon, in or about
the Shopping Center in such amounts as Landlord
deemed appropriate.
(2) Tenant's proportionate share of such insurance premiums
shall be paid to Landlord, as additional rent, in monthly installments on or
before the first day of each calendar month throughout the Term, in advance, in
an amount estimated by Landlord. Such estimate shall be furnished in writing by
Landlord prior to the Commencement Date of the Term and at the beginning of each
calendar year thereafter and at a monthly rate determined. Within sixty (60)
days after the end of each calendar year, Landlord shall furnish Tenant with a
written statement of the actual amount of Tenant's proportionate share of such
insurance premiums for such calendar year. If the total amount paid by Tenant
under this Section 7 for any calendar year shall be less than the actual amount
due from Tenant for such year, as shown on such statement, Tenant shall pay
Landlord the difference between the amount paid by Tenant and the actual amount
due, such deficiency to be paid within ten (10) days after demand therefor by
Landlord; and if the total amount paid by Tenant hereunder for such calendar
year shall exceed such actual amount due from Tenant for such year, Tenant shall
be credited the amount of any overpayment, such credits to be applied against
the estimated insurance premiums for the then-current calendar year. All amounts
due hereunder shall be payable to Landlord at the place where the Fixed Base
Rent is payable. Landlord agrees to use its best efforts to obtain competitive
rates for said insurance coverage.
(3) Tenant's proportionate share of such insurance premiums
shall be equal to the product obtained by multiplying such insurance premiums by
a fraction, the numerator of which shall be the number of square feet of space
in the Premises and the denominator of which shall be the total number of square
feet of leasable space in the Shopping Center.
8. OPERATION OF BUSINESS
During the entire Term, Tenant shall keep the Premises open for
business continuously during all regular and customary hours for such type of
business and on all business days, and will conduct such business in a lawful
manner, in good faith with such business practice, and in such a manner that the
Landlord may at all times receive the maximum amount of rent from the operation
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such business in the Premises. Tenant shall not utilize any unethical method of
business operations. Tenant shall not use or permit the use of any equipment or
apparatus producing, reproducing, or transmitting sound which is audible beyond
the interior of the Premises.
9. BUSINESS HOURS
Notwithstanding the provisions set forth in Section 8 of this Lease,
the Tenant agrees during the entire Term to open for business not later than
10:00 a.m. and to remain open for business until 5:00 p.m. Monday through
Friday, national holidays excluded, which holidays shall not exceed eight (8) in
any Lease Year.
10. UTILITIES
Tenant shall be solely responsible for and promptly pay all charges for
heat, water, gas, electricity and other utilities used or consumed on the
Premises, and any and all tap-in or connection charges in connection therewith.
Landlord shall not be liable to Tenant for interference in or interruption of
any utility service nor shall any curtailment or interruption constitute a
constructive eviction or grounds for rental abatement in whole or in part
hereunder.
11. MAINTENANCE
(a) Subject to the provisions of Section 18, Tenant shall, at Tenant's
sole cost and expense, during the entire Term, keep and maintain in good order,
condition and repair the Premises and every part thereof, including, but not
limited to, all plumbing, sewage, fixtures, interior walls, storefront(s), all
electrical facilities and equipment, lighting fixtures, xxxxxxx, fans and
electrical motors, all other appliances and equipment of every kind and nature,
sprinkler equipment (if any), and any other mechanical systems in the Premises.
Tenant's obligations shall include, but shall not be limited to, the obligation
to replace when necessary any of the items required to be maintained by Tenant
at its sole cost and expense. Such replacement items shall be of comparable
quality to those that they are replacing. If Tenant fails to perform Tenant's
obligations under this Section 11, Landlord may, at Landlord's option enter upon
the Premises and put the same in good order, condition and repair and make such
replacements as may be necessary, and the cost thereof shall become due and
payable as additional rent by Tenant to Landlord upon demand, but nothing in
this sentence contained shall be deemed to impose a duty upon Landlord or affect
in any manner the obligations placed upon Tenant by this Section 11. Any such
entry by Landlord shall not be deemed to be an eviction of Tenant.
(b) Tenant shall provide for (at Tenant's cost and expense as
hereinafter set forth) the maintenance, repair and replacement of the heating,
ventilating and air conditioning equipment (HVAC) in the Premises.
(c) Tenant shall furnish (at Tenant's costs and expense as hereinafter
set forth) trash and garbage receptacles and the removal of trash and garbage
from said receptacles.
12. EXAMINATION OF PREMISES
The Tenant has had or will have prior to the Commencement Date hereof
full opportunity to examine the herein Premises or plans thereof, including the
sidewalks adjacent to said Premises, and the Tenant's occupancy shall be an
acknowledgment that there is in and about them nothing dangerous to life, limb,
health or property, and Tenant hereby waives any claim for damages that may
arise from defects of that character after occupancy, and the Tenant takes the
Premises as they
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will be when completed. All personal property of any kind or description
whatsoever in the Premises shall be at the Tenant's sole risk, and the Landlord
shall not be liable for any damages done to, or loss to, such personal property;
or for damage or loss suffered by the business or occupation of the Tenant
arising from any act or neglect of co-tenants or other persons, or from
bursting, overflowing, or leaking of water, sewer or steam pipes, or from the
heating, air conditioning or plumbing fixtures, or from electric wires, or from
roof, wall and floor leaks, or from gas, or odors, or caused in any other manner
whatsoever.
13. ACCEPTANCE OF PREMISES
It is agreed that by occupying said Premises as Tenant, the Tenant
formally accepts the same and acknowledges that the Landlord has complied with
all requirements imposed upon it under the terms of this Lease.
14. INDEMNIFICATION OF LANDLORD AND LIABILITY INSURANCE
(a) Tenant agrees to indemnify and save harmless Landlord, its
officers, agents, employees and servants, from and against any and all claims by
or on behalf of any persons, firms or corporations, arising from the use,
occupancy, conduct, management of, or from the use, or from any work or thing
whatsoever done in or about, the Premises during the entire Term, and will
further indemnify and save harmless Landlord, its officers, agents, servants and
employees, from and against any and all claims arising during the entire Term
from any conditions of the Premises, or arising from any breach or default on
the part of Tenant in the performance of any covenant or agreement on the part
of Tenant to be performed pursuant to the terms of this Lease, or arising from
any act or negligence of Tenant, or any of Tenant's agents, contractors,
servants, employees or licensees, or arising from any accident, injury or damage
whatsoever caused to any person, firm or corporation occurring during the entire
Term of this Lease, in or about the Premises and from and against all costs,
counsel fees, expenses and liabilities incurred in connection with any such
claim or action or proceeding brought thereon; and in case any action or
proceeding be brought against Landlord by reason of any such claim, Tenant upon
notice from Landlord covenants to resist or defend such action or proceeding by
counsel satisfactory to Landlord.
(b) Tenant agrees to carry at its own expense throughout the Term
comprehensive public liability insurance covering the Premises and Tenant's use
thereof, in companies and in form satisfactory to Landlord, in the amount of at
least Five Hundred Thousand Dollars ($500,000.00) on account of bodily injury to
or death of one person and One Million Dollars ($1,000,000.00) on account of
bodily injuries to or death of more than one person as a result of any
occurrence and with Two Hundred Fifty Thousand Dollars ($250,000.00) coverage
for property damage, and to deposit said policy or policies (or certificates
thereof) with Landlord prior to the date of any use or occupancy of the Premises
by Tenant and thereafter not less than thirty (30) days prior to the expiration
of any such policy; said policy or policies shall name Landlord and Tenant as
insured and shall bear endorsements to the effect that the insurer agrees to
notify Landlord not less than thirty (30) days in advance of any modification or
cancellation thereof. Should Tenant fail to carry such public liability
insurance, Landlord may at its option (but shall not be required so to do) cause
public liability insurance as aforesaid to be issued, and in such event Tenant
agrees to pay the premium for such insurance as additional rent promptly upon
Landlord's demand.
15. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS
Tenant covenants and agrees that if Tenant shall at any time fail to
perform any of the covenants on its part to be made or performed under this
Lease, the Landlord may, but shall not be
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obligated, and without notice or demand and without waiving or releasing the
Tenant from any obligation of the Tenant under this Lease, perform such act to
the extent that the Landlord may deem desirable. All expenses incurred by
Landlord in connection therewith shall be deemed additional rent hereunder and
be payable to the Landlord on demand and the Landlord shall have the same rights
and remedies for the nonpayment thereof as in the case of default in the payment
of any other rent or charges to be paid by Tenant hereunder. Landlord shall have
the right to enter the Premises for the purpose of performing any maintenance or
making any repairs as Landlord may elect to perform or make pursuant to this
Section 15 and such entry shall not constitute an eviction of Tenant. Nothing in
this Section 15 shall be construed to or deemed to impose any duties upon
Landlord.
16. CONDEMNATION
(a) If the whole, or any part of the Premises shall be taken by any
public, or quasi-public authority under any statute or by power or right of
eminent domain, the Term shall cease on that part of the Premises so taken or
conveyed (hereinafter referred to as the "Condemned Portion") from the day the
possession of the Condemned Portion shall be taken by the condemning authority.
Unless this Lease is cancelled as hereinafter provided, the Fixed Base Rent
provided for herein commencing with the date possession is acquired by the
condemning authority, shall be reduced in proportion to the amount of the
Premises taken. If less than the entire Premises shall be taken by such
condemning authority, and in the event, and only in the event, that the
remainder of the Premises not so taken is not, in Landlord's judgment,
reasonably fit or suited to being used by Tenant to enable Tenant to discharge
and satisfy the purposes for which the Premises are leased hereunder to Tenant
and to carry on its business therein, Tenant, provided that Tenant is not in
default under this Lease, may in such event terminate this Lease as to the
remainder of the Premises by giving written notice to Landlord not later than
fifteen (15) days after the vesting of title in the condemning authority or the
date possession of the Condemned Portion shall be taken by the condemning
authority, whichever shall first occur, specifying as the date of termination a
date not later than thirty (30) days after the giving of such notice. Upon the
date specified in such notice, the Term and all right, title, and interest of
Tenant hereunder shall cease and come to an end, provided Tenant is not in
default under this Lease on such date, and Fixed Base Rent, Percentage Rent and
other charges shall be apportioned as of the date of such termination.
(b) If less than the entire Premises shall be taken by such condemning
authority and this Lease is not terminated as hereinabove provided, Landlord
covenants and agrees at Landlord's cost and expense to restore that portion of
the Premises no so taken to a complete architectural unit, in which event (i)
the Fixed Base Rent shall be reduced by an amount based upon the proportion
which the square feet of usable floor space of the Premises, including space
occupied by interior walls and columns remaining after the taking, bears to the
total floor space of the Premises prior to the taking, and (ii) the Base Sales
Amount of Gross Sales in excess of which Percentage Rent shall be due and
payable as provided in Section 3, paragraph (c) shall be reduced by the same
percentage as the percentage of reduction in usable floor space in the Premises
after restoration thereof. In the event Landlord is obligated to restore the
Premises to a complete architectural unit as above provided, Landlord shall not
be required to spend for such work an amount in excess of the amount received by
Landlord as damages for the part of the Premises so taken, less any amount paid
to Landlord's mortgagee from such award.
(c) The entire compensation award for any taking shall belong to and be
the property of Landlord, including, but not limited to, all damages as
comprehensive for diminution in value of the leasehold, reversion, and fee,
without any deduction therefrom for any present or future estate of Tenant, and
Tenant hereby assigns such award to landlord, except that Tenant shall be
entitled to
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receive such portion thereof as may be allocated to compensation paid for
Tenant's trade fixtures and cost of removal of stock, provided that Tenant so
proves in any such condemnation proceeding.
(d) Anything in this Section 16 to the contrary notwithstanding, if a
portion of the Premises shall be taken by any public or quasi-public authority
under the power of eminent domain, the Landlord shall have the option of
terminating this Lease as of the date of vesting of title in the condemning
authority by written notice to Tenant given within fifteen (15) days after
vesting of title in the condemning authority, in which event Landlord shall make
a proportionate refund to Tenant of such rent as may have been paid in advance.
(e) For the purpose of this Section 16 a sale to such public or
quasi-public authority under threat of condemnation shall constitute a vesting
of title and shall be construed as a taking by such condemning authority.
17. QUIET ENJOYMENT
Landlord covenants and agrees that the Tenant upon paying the Fixed
Base Rent, additional rent and all other charges herein provided for and
performing and fulfilling the covenants, agreements, and conditions of this
Lease on the Tenant's part to be performed and fulfilled, shall peaceably and
quietly hold, occupy and enjoy the Premises during the Term without hindrance or
molestation by the Landlord or any person (s) claiming under the Landlord,
subject, however, to the terms and conditions of this Lease.
18. DAMAGE OR DESTRUCTION
(a) If the Premises are damaged by fire or other casualty, the damage
shall be repaired by and at the expense of Landlord, provided such repairs can
be made within ninety (90) days after the occurrence of such damage without the
payment of overtime or other premiums, and until such repairs are completed, the
rent shall be abated in proportion to the part of the Premises which is unusable
by Tenant in the conduct of its business (but there shall be no abatement of
rent by reason of any portion of Premises being unusable if the damage is due to
the act or negligence of the Tenant, its employees, agents or invitees or if the
Premises are unusable for a period equal to one day or less).
(b) If such repairs cannot be made within ninety (90) days, Landlord
may, at its option, make such repairs within a reasonable time, and in such
event this Lease shall continue in effect and the rent shall be abated in the
manner provided above. Landlord's election to make repairs must be evidenced by
written notice to Tenant within thirty (30) days after the occurrence of the
damage. If Landlord does not so elect to make such repairs which cannot be made
within ninety (90) days, then either party may, by written notice to the other,
cancel this Lease.
(c) Anything in this Section 18 to the contrary notwithstanding, if the
Premises or the Shopping Center shall be substantially damaged or destroyed by
fire or otherwise, Landlord shall have the option to terminate this Lease as of
the date of such damage or destruction by written notice to Tenant within thirty
(30) days after such damage or destruction.
19. EXTERIOR AND WINDOW LIGHTING
The Tenant agrees to keep the display windows in the Premises and
Tenant's exterior canopy sign well lighted from dusk until 10:00 p.m. (local
time) Monday through Saturday and from dusk until 6:00 p.m. (local time) on
Sunday during the Term.
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20. SUBORDINATION TO MORTGAGE
This Lease is and shall be subject and subordinate to any and all
mortgages, deeds of trust and land leases now existing upon or that may be
hereafter placed upon the Premises and the real estate upon which they are
situated, and to all advances made or to be made thereon, and all renewals,
modifications, consolidations, replacement, or extensions thereof, and the lien
of any such mortgages, deeds of trust and land leases shall be superior to all
rights hereby or hereunder vested in Tenant, to the full extent of all sums
secured thereby; provided however, that each such mortgage or deed of trust now
or hereafter encumbering the Premises and real estate upon which they are
situated shall provide by its terms, or the holder of such mortgage or deed of
trust shall, by a separate agreement, agree that in the event of foreclosure of
such mortgage or deed of trust, Tenant shall remain undisturbed under this Lease
so long as Tenant complies with all of the terms, obligations and conditions
hereunder. This provision shall be self-operative and no further instrument of
subordination shall be necessary to effectuate such subordination, and the
recording of any such mortgage or deed of trust shall have preference and
precedence and be superior and prior in lien to this Lease, irrespective of the
date of recording. In confirmation of such subordination, Tenant shall on
request of Landlord or the holder of any such mortgage or deed of trust execute
and deliver to Landlord within ten (10) days any instrument that Landlord or
such holder may reasonably request.
21. SURRENDER OF PREMISES
At the expiration of the Term, whether by forfeiture or expiration of
time, Tenant shall surrender the Premises to Landlord in as good condition as
when received by Tenant from Landlord except for reasonable use, wear and damage
by fire or the elements.
22. DEFAULT BY TENANT
(a) This Lease is made upon the condition that the Tenant shall
punctually and faithfully perform all of the covenants and agreements by it to
be performed as herein set forth. If any of the following events shall occur,
to-wit: (i) if any installment of Fixed Base Rent, Percentage Rent, or any other
sums required to be paid by Tenant hereunder, or any part thereof, shall at any
time be in arrears and unpaid for ten (10) days after the date due, or (ii) if
there be any default on the part of the Tenant in the observance or performance
of any of the other covenants, agreements or conditions of said Lease on the
part of Tenant to be kept and performed and said default shall continue for a
period of fifteen (15) days after written notice thereof from Landlord to Tenant
(unless such default cannot reasonably be cured within fifteen (15) days and in
such case, Tenant shall have commenced to cure said default within said fifteen
(15) days and thereafter continues diligently to pursue to completion the curing
of same) or (iii) if Tenant shall file a petition in bankruptcy or be
adjudicated a bankrupt, or file any petition or answer seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief for itself under any present or future federal, state or other
statute, law or regulation, or make an assignment for the benefit of creditors,
or (iv) if any trustee, receiver or liquidator of Tenant or of all or any
substantial part of its properties shall be appointed in any action, suit or
proceeding by or against Tenant and such proceeding or action shall not have
been dismissed within thirty (30) days after such appointment, or (v) if the
leasehold estate hereby created shall be taken by execution or by other process
of law, or (vi) if Tenant shall fail to operate and conduct business as required
in Section 8 hereinabove, then, in any such event, Landlord, at Landlord's
option and without limiting Landlord in the exercise of any other right or
remedy Landlord may have on account of any default by Tenant, may either:
(1) re-enter the Premises, take possession of all buildings,
improvements, additions, alterations, equipment and fixtures thereon, and eject
all parties in possession therefrom,
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using such force for that purpose as may be necessary, without being liable to
any prosecution for said re-entry or the use of such force, and, without
terminating this Lease, at anytime and from time to time relet the Premises or
any part or parts thereof for the account of Tenant or otherwise, receive and
collect the rents therefor, applying the same first to payment of such expenses
as Landlord may have paid, assumed or incurred in recovering possession of the
Premises, including costs, expenses and reasonable attorney's fees and
brokerage, paid, assumed or incurred by Landlord in connection with reletting
the Premises, and then to the fulfillment of the covenants of Tenant. Any such
reletting as provided for herein may be for the remainder of the Term as
originally granted or for a longer or shorter period. Landlord may execute any
Lease made pursuant to the terms hereof in Landlord's own name, and Tenant shall
have no right or authority whatever to collect any rent from such subtenant. In
any case and whether or not the Premises or any part thereof be relet, Tenant
shall pay to Landlord all sums required to be paid by Tenant up to the time of
re-entry by Landlord, and thereafter Tenant shall, if required by Landlord, pay
to Landlord until the end of the Term the equivalent amount of all rent and
other charges required to be paid by Tenant under the terms of this lease, less
the avails of such reletting during the Term, if any, after payment of the
expenses of Landlord as aforesaid, and the same shall be due and payable on the
several rent days herein specified. No such re-entry by Landlord shall
constitute an election to terminate this Lease unless and until Landlord
thereafter gives Tenant notice of Landlord's election to terminate; or
(2) terminate this Lease, and with or without process of law,
expel and remove Tenant, or any other person or persons in occupancy from the
Premises, together with their goods and chattels, using such force as may be
necessary in the judgment of Landlord or his agents in so doing, and repossess
and enjoy said Premises together with all improvements, additions, alterations,
equipment and fixtures thereon, and in addition to any other remedy it may have,
Landlord may recover from Tenant all damages it may incur by reason of such
breach by Tenant.
(b) All rights and remedies of Landlord herein enumerated shall be
cumulative, and none shall exclude any other remedies allowed at law or in
equity.
23. TENANT'S PROPERTY
If for any reason Landlord obtains possession of the Premises, Tenant's
property not removed shall be deemed to have been abandoned and shall become the
property of the Landlord and may be used or disposed of by Landlord as it sees
fit.
24. HOLDING OVER
No receipt of money by the Landlord from the Tenant after termination
of this Lease, or after the service of any notice, or after the commencement of
any suit, or after final judgment for possession of the Premises shall
reinstate, continue or extend the Term or affect any such notice, demand or
suit, or imply consent for any action for which Landlord's consent is required.
In the event Tenant remains in possession of the Premises after termination of
this Lease, and without the execution of a new lease, Tenant, at the option of
Landlord shall be deemed to be occupying the Premises as a tenant from month to
month, at twice the Fixed Base Rent subject to all the other conditions,
provisions and obligations of this Lease insofar as the same are applicable to a
month-to-month tenancy.
25. ACCESS FOR RE-LETTING
The Landlord may at any time within one hundred eighty (180) days
before the expiration date of this Lease enter the Premises at all reasonable
hours for the purpose of offering the same for
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rent and may place and keep on the windows and doors of said Premises signs
advertising the Premises for rent.
26. DEFAULT OF LANDLORD - CURE PERIOD
Landlord shall not be deemed to be in default in the observance or
performance of any of the covenants, conditions, agreements or provisions of
this Lease on its part to be observed or performed unless Landlord shall fail to
remedy such default within thirty (30) days after written notice from Tenant
specifying the nature of such default, or, if default cannot be reasonably
remedied within the said thirty (30) day period, Landlord shall not be deemed to
be in default unless Landlord shall fail to initiate action to remedy such
default within thirty (30) days after such written notice and to prosecute the
same to completion with due diligence.
27. FORCE MAJEURE
In the event Landlord shall be delayed or hindered in or prevented from
the performance of any obligation required under this Lease by reason of
strikes, lockouts, inability to procure labor or materials, failure of power,
fire or other casualty, acts of God, restrictive governmental laws or
regulations, riots, insurrection, war or any other reason not within the
reasonable control of Landlord, then the performance of such obligation shall be
excused for a period of such delay, and the period for the performance of any
such act shall be extended for a period equivalent to the period of such delay.
28. RELEASE AND WAIVER OF SUBROGATION
Landlord shall not be liable for any damage or loss to fixtures,
equipment, merchandise or other personal property of Tenant located anywhere in
or upon the Premises caused by fire, water, explosion, sewer backup or any other
insurable hazards, regardless of the cause thereof, and Tenant does hereby
expressly release Landlord of and from any and all liability for such damage or
loss. Landlord shall not be liable for any damage or loss resulting from
business interruption at the Premises arising out of or incident to the
occurrence of any of the perils which can be covered by a business interruption
policy, and Tenant does hereby expressly release Landlord of and from any
liability for such damage or loss. Tenant shall not be liable for any damages to
the Premises or any part thereof caused by fire or other insurable hazards,
regardless of the cause thereof, and Landlord does hereby expressly release
Tenant of and from any and all liability for such damages or loss. To the extent
that any of the risks or perils described in this Section 28 are in fact covered
by insurance, each party shall cause its insurance carriers to waive all rights
of subrogation against the other party.
29. ESTOPPEL CERTIFICATES
The Tenant shall, within ten (10) days after written request of
Landlord, execute, acknowledge, and deliver to the Landlord or to Landlord's
mortgagee, proposed mortgagee land lessor or proposed purchaser of the Shopping
Center or any part thereof, any estoppel certificates requested by Landlord,
from time to time, which estoppel certificates shall show whether the Lease is
in full force and effect and whether any changes may have been made to the
original Lease; whether the Term of the Lease has commenced and full rental is
accruing; whether there are any defaults by Landlord and, if so, the nature of
such defaults; whether possession has been assumed and all improvements to be
provided by Landlord have been completed; whether rent has been paid more than
thirty (30) days in advance; that there are no liens, charges, or offsets
against rental due or to become due; and that the address shown on such estoppel
is accurate.
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30. LIMITATION OF LANDLORD'S LIABILITY
The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owners at the time in question of an interest in this Lease,
and in the event of transfer of said interest in this Lease, then the party
conveying said interest in this Lease shall be automatically relieved after the
date of such transfer, of all personal liability with respect to the performance
of any obligations on the part of Landlord contained in this Lease, arising out
of acts thereafter occurring or covenants thereafter to be performed, it being
intended hereby that all the obligations contained in this Lease on the part of
Landlord shall be binding upon Landlord, its successors and assigns, only during
and in respect of their respective periods of ownership of an interest in this
Lease.
31. ALTERATIONS OR IMPROVEMENTS BY TENANT
Tenant covenants and agrees that it will not alter or change the
Premises or any part thereof without the written consent of Landlord, and Tenant
agrees to indemnify and save harmless Landlord from all liens, claims or demands
arising out of any work performed, materials furnished, or obligations incurred
by or for Tenant upon said Premises during the Term of this Lease. Tenant hereby
waives any right to make repairs at Landlord's expense. Tenant shall not make
changes to locks on doors or add, disturb or in any way change any plumbing or
wiring without first obtaining written consent of Landlord. At the termination
of this Lease, whether by expiration of time or forfeiture, Tenant shall, if
requested by Landlord in writing, restore the Premises at Tenant's sole cost and
expense, to the condition that the Premises were in prior to the making of any
alterations or improvements, normal wear and tear, fire and acts of God
excepted. At the termination of this Lease, whether by expiration of time or
forfeiture, Tenant shall remove all of its personal property from the Premises
and upon failure to do so, such property shall be deemed to be abandoned and of
no value to Tenant and shall become the sole property of Landlord for disposal
as it sees fit. Tenant further agrees to pay to Landlord the cost of removal of
any such property so abandoned by Tenant.
32. ACCESS TO PREMISES
The Landlord shall have the right if it so elects to enter upon the
Premises at all reasonable hours for the purpose of inspecting the same and for
the purpose of maintenance, repair, and for making additions to any running
pipes, conduits and ducts through the Premises, and Tenant hereby waives any
claim against Landlord for damage or inconvenience caused by any of the above.
Nothing in this Section 32 shall be construed to or deemed to impose any duties
upon Landlord.
33. EXCEPTIONS TO DEMISE
Notwithstanding anything to the contrary herein contained, this Lease
is subject to utility easements, both recorded and unrecorded, all protective
and restrictive covenants and all other recorded documents pertaining to or
affecting the Premises, the Shopping Center of which the Premises are a part, or
the real estate upon which the Shopping Center and Premises are situated; this
Lease is also subject to all governmental laws, ordinances, orders, regulations,
codes, directives, variances, permits, and all orders, permits, rules and
regulations issued by or at the direction of any such governmental agency or
authority or any board or instrumentality thereof.
34. OPERATIONS OF TENANT'S HEATING AND AIR CONDITIONING SYSTEM
Tenant agrees to provide at Tenant's cost its heating or air
conditioning in the Premises so as to adequately heat and cool the same, as the
case may be, during the hours that Tenant's store is open
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for business; and to maintain at all times sufficient heat in the Premises to
prevent pipes from freezing.
35. ATTORNMENT
In the event any proceedings are brought for the foreclosure of, or in
the event of the exercise of the power of sale under any mortgage covering the
Premises, or in the event of any other transfer or sale of Landlord's title to
the Premises, Tenant shall attorn to the purchaser under any such sale, transfer
or foreclosure and recognize such purchaser or transferee at the Landlord under
this Lease.
36. PARTIAL INVALIDITY
If any term, covenant or condition of this Lease, or the application
thereof, to any person or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Lease or the application of such term,
covenant or condition to persons or circumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby and each term,
covenant and condition of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
37. WAIVER OF JURY TRIAL
So far as permitted by law, Landlord and Tenant waive and will waive
any and all right to a trial by jury in the event that summary dispossession
proceedings shall be instituted by Landlord.
38. LEASE BINDING UPON ASSIGNEES
Except at provided in Section 30, this Lease and all covenants,
provisions and conditions herein contained shall inure to the benefit of and be
binding upon the heirs, executors, administrators, personal representatives,
successors and assigns, respectively of the parties thereto, provided however,
that no sublease, assignment or transfer by, from, through or under Tenant in
violation of the provisions hereof shall vest in the sublessee, assignee or
transferee any right, title or interest whatever.
39. ALTERATIONS, ADDITIONS AND CONSTRUCTION OF NEW BUILDING
Landlord hereby reserves the right at any time to make alterations or
additions to the building in which the Premises are located. Landlord also
reserves the right to construct other buildings or improvements in the Shopping
Center from time to time and to make alterations thereof or additions thereto.
40. LANDLORD'S OPTION TO EXPAND SHOPPING CENTER
Landlord shall have the right, but not the obligation, to expand the
Shopping Center.
41. PARTNERSHIP
Nothing contained herein shall be deemed or construed by the parties
hereto, nor by any third party, as creating a relationship between the parties
hereto other than the relationship of Landlord and Tenant.
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42. WAIVER
The failure of Landlord to insist in any one or more cases upon the
strict performance of observance of any of the covenants, agreements or
conditions of this Lease or to exercise any option herein contained shall not be
construed as a waiver or relinquishment for the future performance, observance
or exercise of such covenant, agreement, condition or option. No waiver of any
default hereunder shall be implied from any omission by Landlord to take any
action on account of such default or to declare a forfeiture if such default
persists or is repeated, and no condition or covenant shall be deemed waived by
Landlord unless such waiver be in writing signed by Landlord. The acceptance by
Landlord of rent with knowledge of the breach of any of the covenants or
conditions of this Lease by Tenant shall not be deemed a waiver of any such
breach. One or more waivers of any breach of any covenant, term or condition of
this Lease by Landlord shall not be construed as a waiver of any subsequent
breach of the same covenant, term or condition.
43. PARKING OF CARS
The Tenant and his employees shall not park cars on the street or
internal drives in the Shopping Center of which the herein Premises are a part,
or in any alley or court in the center of which the herein Premises are a part.
When there is a rear entrance, all loading and unloading of goods shall be made
at the rear entrance. The Tenant and his employees shall park their cars in
areas as designated by the Landlord from time to time. The Landlord does not
agree to reserve or permanently maintain any parking stations which are now
built or may hereafter be built in said Shopping Center. Failure of the Tenant
and his employees to park cars in such designated areas shall be an event of
default by Tenant. The Tenant further agrees that upon written notice from the
Landlord he will, within five (5) days, furnish the state automobile license
numbers assigned to his car and the cars of all his employees.
44. NO ACCORD AND SATISFACTION
No acceptance by Landlord of a lesser sum than the Fixed Base Rent,
Percentage Rent, additional rent or any other charge then due shall be deemed to
be other than on account of the earliest installment of such rent or charge due,
nor shall any endorsement or statement on any check or any letter accompanying
any check or payment as rent or other charge be deemed in accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such installment or charge or any
other monies owing by Tenant or pursue any other remedy in this Lease provided.
45. BANKRUPTCY
Neither this Lease, nor any interest therein, nor any estate hereby
created shall pass to any trustee or receiver in bankruptcy, or to any other
receiver or assignee for the benefit of creditors or otherwise by operation of
law.
46. CORPORATE OWNERSHIP
If the Tenant herein is a corporation and if, by sale or other
disposition, the control thereof changes at any time during the Term hereof,
then, at the option of the Landlord, this Lease may be cancelled by the Landlord
upon giving sixty (60) days prior written notice of its intention so to do.
Written notice of any such intended sale must be given to Landlord at least
twenty (20) days prior to the effective date thereof.
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47. ADVERTISING
During each Lease Year Tenant agrees to spend a minimum of Fifty Cents
($.50) per square foot of gross area of the Premises or One Thousand Dollars
($1,000.00), whichever is greater, to advertise and promote the Tenant's
business in the Shopping Center. Only expenditures for advertising which
specifically features Tenant's location in the Shopping Center and which
contains the name "Karric Square at Dublin Shopping Center" prominently featured
therein shall be credited to satisfy the foregoing requirement. Tenant agrees,
upon the Landlord's request, to furnish invoices, copies of advertisements or
such other documents or information as Landlord shall reasonably request to
verify that Tenant has complied with this Section 47.
48. ASSIGNMENT AND SUBLETTING
Tenant shall not assign this Lease in whole or in part, nor sublet all
or part of the Premises, without the prior written consent of Landlord in each
instance. It is the intention of the parties that Landlord shall have the
absolute right to withhold its consent to an assignment or subletting for any
reason, and no standard of "reasonableness" shall be applicable or implied in
construing this Section 48. The consent by Landlord to any assignment or
subletting shall not constitute a waiver of the necessity for such consent to
any subsequent assignment or subletting. Notwithstanding any assignment or
sublease, Tenant shall remain fully liable on this Lease and shall not be
released from performing any of the terms, covenants and conditions of this
Lease.
49. SECURITY DEPOSIT
Tenant has deposited with Landlord the sum of ZERO DOLLARS as security
for the full and faithful performance of every provision of this Lease to be
performed by Tenant. If Tenant defaults with respect to any provision of this
Lease, including, but not limited to the provisions relating to the payment of
Fixed Base Rent, additional rent and other charges, Landlord may use, apply or
retain all or any part of this security deposit for payment of any such rent or
other sum in default, or for the payments of any other amount which Landlord may
spend or become obligated to spend by reason of Tenant's default. If any portion
of said deposit is so used or applied, Tenant shall, within five (5) days after
written demand therefor, deposit cash with Landlord in an amount sufficient to
restore the security deposit to its original amount, and Tenant's failure to do
so shall be a breach of this Lease. Landlord shall not be required to keep this
security deposit separate from its general funds, and Tenant shall not be
entitled to interest on such deposit. If Tenant shall fully and faithfully
perform every provision of this Lease to be performed by it, the security
deposit or any balance thereof shall be returned to Tenant without interest at
the expiration of the Lease Term and upon Tenant's vacation of the Premises.
50. ENTIRE AGREEMENT AND MODIFICATIONS
This Lease and the covenants and agreements set forth herein are and
shall constitute the entire agreement between the parties. Each party to this
Lease hereby acknowledges and agrees that the other party has made no
warranties, representations, covenants or agreements, expressed or implied, to
such party other than those expressly set forth herein and that each party, in
entering into and executing this Lease, has relied upon no warranties,
representations, covenants or agreements, express or implied, to such party
other than those expressly set forth herein. None of the terms, covenants and
agreements of this Lease shall in any manner be altered, waived or changed,
except by written instrument signed and delivered by the parties hereto.
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51. SURVIVAL OF TENANT'S OBLIGATIONS
All obligations of Tenant which by their nature involve performance, in
any particular, after the end of the Term of which cannot be ascertained to have
been fully performed until after the end of the Term, shall survive the
expiration or sooner termination of the Term.
52. BROKER'S COMMISSION
Tenant warrants that there are no claims for broker's commissions or
finder's fees in connection with Tenant's execution of this Lease. Tenant agrees
to indemnify and save Landlord harmless from any liability that may arise from
the claim of any other person, including, but not limited to, reasonable
attorney's fees.
53. ATTORNEY'S FEES AND COSTS
In the event Landlord shall have to file any proceeding, whether at law
or in equity, to enforce collection of any rent, charge or other payment to be
borne, kept or paid by Tenant hereunder, or in the event Tenant shall be in
default hereunder and Landlord employs counsel to enforce performance of any of
the obligations of Tenant hereunder, Landlord shall be entitled to recover from
Tenant, and Tenant agrees to pay to Landlord an amount of money equal to all
reasonable expenses including reasonable attorney's fees incurred by Landlord in
enforcing the covenants hereof and securing to it the performance of obligations
of Tenant hereunder, in addition to all sums to which Tenant shall otherwise be
obligated hereunder. Said fees and costs shall be additional rent hereunder.
54. NOTICES
All notices provided for in this Lease shall be in writing and shall be
delivered personally or deposited in the United States mail, registered or
certified, return receipt requested, postage prepaid, addressed to Landlord c/o
C.B. Xxxxxxx Xxxxx, 000 X. Xxxxxxxxxx - Xxxxx 000, Xxxxxxxx, Xxxx 00000, or at
such other address as the Landlord may from time to time designate by notice in
writing to Tenant and to Tenant at 0000 Xxxxxx Xxxx, Xxxxxx, Xxxx 00000, or at
such other address as the Tenant may from time to time designate by notice in
writing. Notice shall be deemed given when deposited in the United States mail
as aforesaid. Notice need be sent to only one person where the Tenant is more
than one person.
55. RECORDING
Neither party shall record this Lease in its entirety. However, upon the
request of either party, the other party shall join in the execution of a
memorandum or so called "short form" of this Lease for the purpose of
recordation.
56. NO OPTION
The submission of this Lease for examination does not constitute a
reservation of or option for the Premises or any other space within the Shopping
Center and shall vest no right in either party. This Lease shall become
effective as a lease only upon execution and delivery thereof by the parties
hereto, and upon Landlord's receipt of the Security Deposit.
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57. HEADINGS AND INTERPRETATIONS
The paragraph headings used throughout this instrument are for
convenience and reference only, and the words contained therein shall in no way
be held to explain, modify, amplify or aid in the interpretation, construction
or meaning of the provisions of this Lease.
Whenever herein the masculine gender is used, the same shall include
the feminine and neuter genders.
58. NON-DISCRIMINATION
Neither Tenant nor anyone claiming under Tenant shall discriminate upon
the basis of race, color, creed or national origin in the use or occupancy of
the Premises or any part thereof.
59. INTEREST AND PAST-DUE OBLIGATION
Other remedies for default in this Lease notwithstanding, any sum
accruing to Landlord or Tenant under the terms and provisions of this Lease
which is not paid when due shall bear interest at the rate of one and one-half
percent (1-1/2%) per month, but in no event more than the maximum amount allowed
by law, from the date when any such sum becomes due and payable under the terms
and provisions of this Lease until paid. In addition, and not by way of
limitation to the preceding sentence, if any Base Rent, Percentage Rent and/or
additional rent payment is not received by Landlord on or before the ninth day
of the month for which such payment is due, a service charge of five percent
(5%) of such past-due amount shall become due and payable in addition to such
amounts owed under this Lease.
60. MISCELLANEOUS
This Lease has been negotiated by Landlord and Tenant, and this Lease,
together with all of the terms and provisions hereof, shall not be deemed to
have been prepared by either Landlord or Tenant, but by both equally. Wherever
in this Lease any printed portion or part thereof has been stricken, whether or
not any relative provisions have been added, this Lease shall be read and
construed as if the material stricken was never included herein, and no
implication shall be drawn from the text of the material so stricken which would
be inconsistent in any way with the construction or interpretation which would
be appropriate if such material were never contained herein.
61. RIDER
Exhibits A, B, C and D are attached hereto and made a part hereof.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the
day and year first above written.
Signed and acknowledged in
the presence of: BRC PROPERTIES INC., LANDLORD
By: /s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
Vice President
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DOMINION HOMES, INC., TENANT
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Senior Vice President
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STATE OF OHIO
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this 29th day of
September, 1999, by Xxxxxxxx X. Xxxxxx, the Vice President of BRC Properties
Inc., an Ohio corporation, on behalf of the corporation.
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Notary Public
STATE OF OHIO
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this 29th day of
September, 1999, by Xxxxx X. Xxxxxx, the Senior Vice President of Dominion Home,
Inc., an Ohio Corporation, on behalf of the corporation.
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Notary Public
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EXHIBIT B
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LANDLORD'S IMPROVEMENTS
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Tenant accepts Premises in "as is" condition.
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EXHIBIT C
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TENANT'S WORK
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In accordance with the terms of this Lease, Tenant shall perform any and all
additional tenant finish work for the Leased Premises over and above the items
of Landlord's Work listed in Exhibit B at Tenant's sole cost and expense, unless
Landlord and Tenant agree that Landlord is to perform certain of said items at
Tenant's expense. Any such agreement shall be in writing and shall specify the
items to be completed by Landlord on behalf of Tenant and the cost to be paid by
Tenant for said tenant finish work. It is understood and agreed that the cost
for any such tenant finish work completed by Landlord on behalf of Tenant shall
be paid for in full prior to the time Tenant opens the Leased Premises to the
public for business.
Any and all alterations and improvements made by Tenant shall be made in
accordance with applicable laws and building codes, and in a good and
workmanlike manner. All plans and specifications for any such tenant finish
work, and the name of the contractor who is to perform same, must be submitted
to Landlord for its written approval prior to commencement of any such tenant
finish work. Tenant shall fully and completely indemnify, defend and hold
Landlord harmless from and against any and all mechanic's lien or other liens or
claims in connection with any tenant finish work performed by Tenant or a third
party, or for which Tenant has not yet paid. All tenant finish work to be
performed by Tenant shall be completed within forty-five (45) days from the date
Landlord substantially completes Landlord's Work and notifies Tenant of such
substantial completion. Tenant shall provide Landlord with full and complete
mechanic's lien waivers from all persons furnishing labor and material for
completion of Tenant's Work.
Failure to perform any of the covenants contained herein shall constitute a
default under the terms of this Lease, and if such default is not cured within
ten (10) days after written notice thereof to Tenant, Landlord shall have all of
the rights and remedies provided under this Lease, as well as any other rights
afforded to landlord at law or in equity.
All utility charges for the Leased Premises accruing during the period in which
Tenant is performing its tenant finish work prior to the commencement of the
term of this Lease shall be borne by Tenant.
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EXHIBIT D
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SIGN STANDARDS
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Landlord will provide a sign casing with appropriate electrical service
permanently mounted on the canopy of the building facing the parking lot
immediately adjacent to and in front of Tenant's storeroom.
Tenant is responsible for design and cost of the insert and light bulbs and
design cost. Maintenance of the sign and mechanical equipment after the
storeroom is delivered to Tenant shall be Tenant's responsibility and expense.
Tenant agrees to repair any damaged or malfunctioning sign in as timely a manner
as possible. Signage will be provided only by Landlord's approved subcontractor.
Landlord reserves the right to approve all sign designs prior to installation.
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