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Exhibit 10.2.11.b
TERMINATION OF LEASE AGREEMENT
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This Termination of Lease Agreement (this "Agreement"), effective as of
this ______ day of April, 2001 (the "Effective Date"), is made by and between
D.I.Y. HOME WAREHOUSE, INC., an Ohio corporation ("D.I.Y.") and XXXX'X HOME
CENTERS, INC., a North Carolina corporation ("Lowe's").
RECITALS
X. Xxxxxxx/West Finance Partners V, L.P. (as successor in interest to
Developer's Diversified) (the "Landlord") and Kmart Corporation (as successor in
interest to X.X. Xxxxxx Company) ("Kmart") were parties to that certain Lease
dated August 6, 1971, as amended by that certain Amendment to Lease dated April
30, 1975 (collectively, the "Lease") pertaining to certain site improvements and
real property consisting of approximately 11 acres located in the City of Mentor
and Township of Concord, Lake County, Ohio (the "Premises"); and
B. Kmart subleased a portion of the retail building located on the
Premises to the X.X. Xxxxxxx Furniture Company ("Xxxxxxx") pursuant to that
certain Lease dated January 14, 1974, as amended by that certain Amendment to
Lease dated March 13, 1990 (collectively, the "Xxxxxxx Sublease"); and
C. Kmart Corporation assigned its interest in and to the Lease and the
Xxxxxxx Sublease to D.I.Y. pursuant to that certain Assignment and Assumption of
Lease and Sublease dated December 22, 1994, retaining its rights under Article
12 of the Lease to exercise any option to extend the term of the Lease (the
"Assignment"); and
D. D.I.Y. subleased a portion of the retail building located on the
Premises to Mattress City and Furniture, Inc. d/b/a Thomasville Home Furnishings
("Thomasville") pursuant to that certain Sublease Agreement dated June 2, 1998,
as amended by that certain Amendment to Sublease dated February 11, 2000
(collectively, the "Thomasville Sublease"); and
E. The Thomasville Sublease has expired pursuant to the terms and
conditions set forth in the Thomasville Sublease.
F. Landlord acquired all of Kmart's remaining interests in and to the
Lease, the Xxxxxxx Sublease, the Assignment and the Premises pursuant to that
certain Assignment Agreement and Release dated February 3, 2000; and
G. D.I.Y. has agreed to terminate all of its interest in the Assignment
and the Premises as more fully set forth below, upon the payment of a
termination fee (the "Termination Fee") and other good and valuable
consideration.
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NOW, THEREFORE, the parties, for the Termination Fee and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties, do mutually agree as follows:
AGREEMENT
1. TERMINATION OF THE ASSIGNMENT. On the Effective Date hereof, D.I.Y.
shall enter into a termination of lease agreement with Landlord (the
"Termination of Lease"), which shall provide, among other things, that the
Assignment and all of D.I.Y.'s rights and obligations with respect to the
Premises shall be voluntarily terminated and be of no further force and effect
as of the Effective Date hereof (the "Lease Termination Date"). This Agreement
is expressly conditioned upon the simultaneous termination of the Lease and
execution of a new lease pertaining to the Premises between the Landlord and
Lowe's, upon terms satisfactory to Lowe's in its sole discretion (the "Lowe's
Lease").
2. RECORDING OF THE TERMINATION OF LEASE. The Termination of Lease
shall be recorded in the Lake County Recorder's Office on the Effective Date
hereof in the form attached hereto as EXHIBIT A and incorporated herein by
reference.
3. TERMINATION OF THE THOMASVILLE SUBLEASE. D.I.Y. hereby represents
and warrants to Lowe's that the Thomasville Sublease has been terminated and is
no longer of any force and effect and that Thomasville has vacated the Premises
and is no longer entitled to possession thereof.
4. PAYMENT OF TERMINATION FEE. In consideration for D.I.Y.'s agreement
to enter into the Lease Termination Agreement, Lowe's shall pay to D.I.Y. a one
time payment in an amount equal to $3,224,375.00. In addition, Lowe's shall
reimburse to D.I.Y. the amount paid by D.I.Y. to Thomasville to terminate the
Thomasville Sublease and Thomasville's right to possess the Premises, which
amount shall not exceed $260,000 (collectively, the "Termination Fee").
Accordingly the Termination Fee is $3,484,375.00. The Termination Fee shall be
reduced by an amount equal to $20,000, representing reimbursement to Lowe's of
the amount paid by Lowe's to Landlord for Landlord's reasonable engineering
costs relating to termination of the Assignment and execution of the Lowe's
Lease.
5. PAYMENT OF PURCHASE PRICE. Simultaneously with the execution of this
Agreement, Lowe's shall deliver the Termination Fee to D.I.Y., less credits for
payments previously made to D.I.Y. and the other adjustments set out in the
settlement statement approved by both parties, by wire transfer in immediately
available funds.
6. PERCENTAGE RENT UNDER THE LOWE'S LEASE. In addition to the payment
of the Termination Fee, Lowe's agrees to pay to D.I.Y. as percentage rent on
Gross Sales (as hereinafter defined) made in each Lease Year of the Lowe's Lease
(as hereinafter defined) commencing with the first (1st) Lease Year from Lowe's
business conducted in or from the Premises a sum equivalent to one percent (1%)
of the Gross Sales (as hereinafter defined) in excess of the sum of FORTY
MILLION DOLLARS ($40,000,000) (the "Breakpoint"). The Breakpoint shall be
adjusted upwards by five percent (5%) for each Lease Year of the Lowe's Lease
over the
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previous Lease Year's Breakpoint amount for the first ten (10) Lease Years of
the Lowe's Lease. Thereafter, the Breakpoint shall remain fixed. The Breakpoint
during each Lease Year of the Lowe's Lease shall be as follows:
Lease Year 1: $40,000,000
Lease Year 2: $42,000,000
Lease Year 3: $44,100,000
Lease Year 4: $46,305,000
Lease Year 5: $48,620,250
Lease Year 6: $51,051,262.50
Lease Year 7: $53,603,825.63
Lease Year 8: $56,284,016.91
Lease Year 9: $59,098,217.76
Lease Year 10: $62,053,128.65
Lease Year 11 and after: $65,155,785.08
The term "Lease Year" as used herein shall mean a period of twelve (12)
consecutive months (except the first Lease Year may be twelve (12) months and
some days) commencing on the Lowe's store opening for business. If any partial
Lease Year occurs of less than twelve (12) calendar months, then percentage rent
shall be paid on Gross Sales actually occurring during that period if percentage
rent is applicable based upon a proportionately reduced breakpoint.
The term "Gross Sales" as used herein shall mean gross receipts of
Lowe's from all business conducted in or from the Premises, whether such
receipts are evidenced by check, credit, charge account, exchange or otherwise,
and shall include, but not be limited to, the amount received from the sale of
goods, wares and merchandise at or from the Premises, and for services performed
on or at the Premises, together with the amount of all orders and catalog sales
which are delivered to the customer at or from the Premises. If any one or more
departments or other divisions of Lowe's business are conducted by any person,
firm or corporation other than Lowe's under a license, concession, or
subtenancy, then there shall be included in Gross Sales, for the purpose of
determining the percentage rent payable hereunder, all the income received by
Lowe's from such departments or divisions operated by licensees,
concessionaires, or subtenants. Gross Sales shall not include (i) sales of
merchandise for which cash has been refunded; (ii) allowances made on
merchandise claimed to be defective or unsatisfactory, provided they were
previously included in Gross Sales; (iii) the sales price of merchandise
returned by customers for exchange, provided the sales price of merchandise
delivered to the customer in exchange is included in Gross Sales; (iv) transfers
of merchandise from the Premises to other stores or warehouses of Lowe's or its
affiliated companies, provided the transaction is not a "step" in the sale of
merchandise which originated at the Premises; (v) transfers of merchandise to
shippers or manufacturers, provided the transaction is not a "step" in the sale
of merchandise which originated at the Premises; (vi) merchandise or other items
of value issued in redemption of evidences of value, or issued as a premium or
otherwise in connection with any sales promotion of Lowe's, unless issued for
monetary consideration; (vii) discounts provided to volume sales customers who
pay for merchandise purchased in accordance with the payment policy established
by Lowe's with respect to sales to volume sales customers; (viii) all receipts
of
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installation charges or labor charges for installation of merchandise where
Lowe's pays or remits the installation charges to a third party (the sales price
of the merchandise itself shall be included in Gross Sales); (ix) all receipts
from sales to employees at a discount; (x) the value of any travelers checks,
money orders, tickets, insurance policies, warranty or service agreements or
similar instruments sold by Lowe's, which must be forwarded to the underwriter;
(xi) any sales made by a corporate sales representative of Lowe's (which sales
do not originate on the Premises and which representative does not maintain an
office in Lake County, Ohio) to national or regional accounts which for
accounting or administrative purposes may be credited to or delivered through
the store located on the Premises; (xii) the sale of Lowe's fixtures or
equipment, or of all or a substantial part of all its stock-in-trade and
merchandise at a distress sale other than at retail; (xiii) sales of waste
material, including, but not limited to cardboard; and (xiv) credit service
charges, bad debt expense, interest or collection charge for sales on credit
made by Lowe's provided that Lowe's uses reasonable efforts to collect any bad
debts and diligently pursues the collection thereof. In addition to the
foregoing, Gross Sales shall not include, to the extent paid, the amount of any
sales, use or gross receipts tax imposed by any federal, state, municipal, or
governmental authority directly on sales and collected from customers, provided
the amount thereof is added to the selling price or absorbed therein and paid by
Lowe's to such governmental authority. No franchise or capital stock tax and no
income or similar tax based upon income or profits as such shall be deducted by
Lowe's from Gross Sales in any event whatsoever.
All transactions shall be registered and recorded on accurate cash
registers, or computing machines or on other reasonable sales recording devices,
and the items thereof shall be posted in books and records of account to reveal
the true, correct, and entire business conducted in or from the Premises.
Upon written request by D.I.Y., not more often than once each Lease
Year, Lowe's shall submit to D.I.Y. on or before the sixtieth (60th) day
following the end of each Lease Year, at the place then fixed for the payment of
percentage rent, a written statement signed by the chief financial officer of
Lowe's, or an assistant treasurer, and certified to be true and correct, showing
in reasonably accurate detail the amount of Gross Sales during the preceding
Lease Year. However, in the event that the Lowe's Xxxxx Sales in any given Lease
Year are below the Breakpoint for such Lease Year, then Lowe's shall only be
required to submit to D.I.Y. a certified written statement signed under penalty
of perjury by the chief financial officer of Lowe's, or an assistant treasurer
stating that Gross Sales for such Lease Year were below the Breakpoint for that
Lease Year. Simultaneously with the delivery of the annual certified statement
as described above, Lowe's shall pay to D.I.Y. the percentage rent, if any,
required to be paid for such preceding Lease Year.
Lowe's shall maintain at Lowe's principal office accurate records of
Gross Sales prepared in accordance with accepted accounting practices, together
with state and local sales tax returns of Lowe's relating to Lowe's Gross Sales.
D.I.Y. or its representatives shall have the right, during the one-year period
following such Lease Year upon delivery of not less than five (5) days prior
notice to Lowe's, to audit Lowe's records relating to Gross Sales to determine
the accuracy of the statements of Gross Sales. In the event an audit of Lowe's
records discloses that Gross
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Sales were understated by three (3) percent or more than the actual Gross Sales
for any Lease Year, D.I.Y. shall have the right to audit Lowe's records relating
to Gross Sales for the three (3) Lease Years immediately preceding the Lease
Year with respect to which the audit is then being conducted, and in such event,
Lowe's shall pay the reasonable cost of any such audit. Lowe's shall have the
right to reasonably disapprove of D.I.Y.'s choice of auditors and any auditors
shall be subject to Xxxx s confidentiality measures. Any additional percentage
rent found due as a result of an audit shall be paid by Lowe's within ten (10)
days after delivery of notice of such determination. Any percentage rent not
paid when due shall accrue interest per annum at the Prime Rate as announced
from time to time in the Wall Street Journal. D.I.Y. hereby agrees to maintain
the confidentiality of all Gross Sales figures and any records relating thereto
which are disclosed to D.I.Y. by Lowe's and shall not disclose such information
to any third party without the prior written consent of Lowe's.
The amount of percentage rent payable by Lowe's to D.I.Y. under this
Agreement shall be capped at the amount of $144,375.00 (the "Percentage Rent
Amount"). Any percentage rent paid by Lowe's to D.I.Y. shall be credited against
the Percentage Rent Amount, and Lowe's obligation to pay percentage rent and
report Gross Sales as described herein shall immediately terminate upon payment
of the full Percentage Rent Amount. Notwithstanding anything to the contrary
contained herein, Lowe's shall have no obligation to pay D.I.Y. for any unpaid
balance on the Percentage Rent Amount, which is not payable by Lowe's to D.I.Y.
as percentage rent during the term of Lowe's occupancy of the Premises or
January 31, 2023, whichever is earlier. Interest on any unpaid balance of the
Percentage Rent Amount shall accrue annually at a rate equal to the Consumer
Price Index and shall be cumulatively capped at an amount which equals 25% of
the principal amount of the Percentage Rent Amount or $36,049.00.
7. LICENSE FOR USE AGREEMENT. D.I.Y. shall be permitted to remain in
possession of the Premises for a period not to exceed ninety (90) days from the
Effective Date hereof for the purposes and on the terms and conditions set forth
in the License for Use Agreement, attached hereto as EXHIBIT B and made a part
hereof.
8. INDEMNIFICATION. D.I.Y. hereby agrees to indemnify, defend and hold
Lowe's harmless from and against any and all causes of action, claims, rights,
demands, liabilities, losses, damages, judgments and expenses, including,
without limitation, reasonable attorneys' fees, court costs and other legal
expenses arising from or in connection with (a) D.I.Y.'s breach of any of the
representations or warranties contained in this Agreement, and (b) any of
D.I.Y.'s contractual or lease obligations with any other party predating the
Effective Date of this Agreement and respecting the Premises.
9. NOTICES. Any notices, requests or other communications required or
permitted to be given hereunder shall be in writing and shall be deemed given
(except as otherwise provided herein) when received if (i) delivered by hand,
(ii) deposited with a widely recognized national overnight courier service for
next business day delivery, or (iii) mailed by United States registered or
certified mail, return receipt requested, postage prepaid, and in each case
addressed to each party at its address set forth below:
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To D.I.Y.: Confidential
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D.I.Y. Home Warehouse, Inc.
0000 Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxxx 00000
Attn: Xx. Xxxxx Xxxxx
with a copy to: Xxx Xxxxxxxx, Esq.
Cavitch, Familo, Xxxxxx & Xxxxxxx
East Ohio Building, 14th Floor
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
and a copy to: Xx. Xxxx X. Xxxxxxxxxxx, Xx.
Edgemere Enterprises, Inc.
00 Xxxx Xxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
and to Lowe's: Xxxx'x Home Centers, Inc.
Xxxxxxx 000 Xxxx
X.X. Xxx 0000 (Box Office Zip Code - 28656-0001)
North Xxxxxxxxxx, X.X. 00000
Attn: Property Management Dept. (REO)
with a copy to: Xxxx'x Home Centers, Inc.
Xxxxxxx 000 Xxxx
X.X. Xxx 0000 (Box Office Zip Code - 28656-0001)
North Xxxxxxxxxx, X.X. 00000
Attn: Legal Dept. (REO)
and: Xxxxx X. Xxxx, Esq.
Xxxxx, Xxxx & Xxxxxxxx, X.X.
000 X. Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Rejection or other refusal to accept or inability to deliver because of
changed address of which no notice was given shall be deemed to be receipt of
the notice, request or other communication. By giving at least five (5) days
prior notice thereof, any party may from time to time at any time change its
mailing address hereunder.
10. AMENDMENT AND MODIFICATION. No amendment, modification, supplement,
termination, consent or waiver of any provision of this Agreement, nor consent
to any departure herefrom, will in any event be effective unless the same is in
writing and is signed by the party against whom enforcement of the same is
sought. Any waiver of any provision of this Agreement and any consent to any
departure from the terms of any provision of this Agreement is to be effective
only in the specific instance and for the specific purpose for which given.
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11. CAPTIONS. Captions contained in this Agreement have been inserted
herein only as a matter of convenience and in no way define, limit, extend or
describe the scope of this Agreement or the intent of any provision hereof.
12. GOVERNING LAW. This Agreement and the rights and obligations of the
parties are to be governed by and construed and interpreted in accordance with
the laws of the State of Ohio applicable to contracts made and to be performed
wholly within Ohio, without regard to choice or conflict of laws rules.
13. EXHIBITS. All of the Exhibits attached to this Agreement are deemed
incorporated herein by reference.
14. SUCCESSORS AND ASSIGNS. All provisions of this Agreement are
binding upon, inure to the benefit of, and are enforceable by or against, the
parties and their respective successors and assigns.
15. FURTHER ASSURANCES. The parties will execute and deliver such
further instruments and do such further acts and things as may be required to
carry out the intent and purpose of this Agreement, including but not limited
to, those documents required to be delivered by the title company in order for
Lowe's to obtain a leasehold policy of title insurance, in form and substance
acceptable to Xxxx s.
16. COUNTERPARTS. This Agreement may be executed by the parties on any
number of separate counterparts, and all such counterparts so executed
constitute one agreement binding on all the parties notwithstanding that all the
parties are not signatories to the same counterpart.
17. COUNTERPART FACSIMILE EXECUTION. For purposes of this Agreement, a
document (or signature page thereto) signed and transmitted by facsimile machine
or telecopier is to be treated as an original document. The signature of any
party thereon, for purposes hereof, is to be considered as an original
signature, and the document transmitted is to be considered to have the same
binding effect as an original signature on an original document. At the request
of any party, any facsimile or telecopy document is to be re-executed in
original form by the party who executed the facsimile or telecopy document. No
party may raise the use of a facsimile machine or telecopier or the fact that
any signature was transmitted through the use of a facsimile or
telecopier machine as a defense to the enforcement of this Agreement or any
amendment or other document executed in compliance with this Section.
[SIGNATURE BLOCKS TO FOLLOW ON THE NEXT PAGE]
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IN WITNESS WHEREOF, the parties here caused their duly authorized
representative to execute this Agreement as of the day and year first above
indicated.
Signed and acknowledged D.I.Y HOME WAREHOUSE, INC.
in the presence of:
By:
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Signature Name:
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Its:
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Print Name
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Signature
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Print Name
Signed and acknowledged XXXX'X HOME CENTERS, INC.
in the presence of:
By:
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Signature Name:
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Its:
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Print Name
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Signature
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Print Name
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EXHIBIT A TO TERMINATION OF LEASE AGREEMENT
FORM OF MEMORANDUM OF TERMINATION OF LEASE
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EXHIBIT B TO TERMINATION OF LEASE AGREEMENT
FORM OF LICENSE FOR USE AGREEMENT
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LICENSE FOR USE AGREEMENT
THIS LICENSE FOR USE AGREEMENT (this "Agreement") is made and entered
into as of the ____ day of April, 2001 (the "Effective Date"), by and between
XXXX'X HOME CENTERS, INC., a North Carolina corporation (hereinafter referred to
as "Lowe's") and D.I.Y HOME WAREHOUSE, INC., an Ohio corporation (hereinafter
referred to as "Licensee").
W I T N E S S E T H:
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WHEREAS, Lowe's and Licensee have entered into a Termination of Lease
Agreement of even date herewith, whereby Licensee agreed to terminate all of
Licensee's rights, title and interest in and to that certain Assignment and
Assumption of Lease and Sublease between Kmart Corporation, as Assignor, and
Licensee, as Assignee, dated December 22, 1994 (the "Lease") for certain site
improvements and real property located in Lake County, Ohio, which includes a
parcel containing approximately 11 acres, as more particularly described on
Exhibit A, attached hereto and made a part hereof (the "Premises").
WHEREAS, contemporaneous with the date of this Agreement, Lowe's has
acquired a leasehold interest in and to the Premises (the "Lowe's Lease") and
Licensee has terminated its Lease with respect to the Premises; and
WHEREAS, Licensee would not have terminated its Lease with respect to
the Premises without entering into this Agreement; and
WHEREAS, Lowe's desires to grant to Licensee, and the Licensee desires
to accept, a temporary license for use of the Premises by Licensee from the
Effective Date through and including the date which is ninety (90) days from the
Effective Date, for the purposes herein set forth all in accordance with the
provisions of this Agreement.
NOW THEREFORE, for and in consideration of Ten and No/i 00 Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1. TEMPORARY LICENSE. Lowe's does hereby grant Licensee a temporary
license for a period commencing on the Effective Date and terminating upon the
earlier of (i) Licensee's vacation of the Premises or (ii) 11:59 p.m. (Central
Daylight Time) on the date which is ninety (90) days from the Effective Date
(the "License Term") for the sole purposes of operating a D.I.Y. Home Warehouse
retail business on the Premises during the License Term in a manner consistent
with Licensee's past use of the Premises, conducting a going out of business
sale and removing all of Licensee's personal property and fixtures located upon
the Premises, provided
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that any such sale and removal shall be accomplished at Licensee's sole cost and
expense in accordance with all applicable laws, rules, ordinances, statutes and
regulations and in accordance with the terms of the Lease, which existed
immediately prior to its termination. This Agreement does not confer upon
Licensee the exclusive possession of the Premises; however, during the License
Term, Lowe's will not take any action which materially and adversely interferes
with Licensee's business at the Premises. In addition, nothing contained herein
shall be deemed to constitute a warranty by Lowe's as to the Premises, it being
understood and agreed that Lowe's hereby disclaims any and all warranties and
representations, whether implied or otherwise. The personal property and
fixtures removed from the Premises by Licensee shall at all times be and remain
the sole property of Licensee and not the property of Lowe's.
2. USE; COMPLIANCE WITH LAWS. The Premises shall be used and occupied
by Licensee only for the purposes herein set forth. Licensee shall comply with
all terms of the Lease, which existed immediately prior to its termination
(except those terms which would be obviated by the demolition of the building
and other improvements on the Premises) and all laws and regulations affecting
the Premises and the use and occupancy thereof. All improvements ' personal
property and fixtures remaining on the Premises at the expiration of the License
Term shall be deemed the property of Lowe's and may be disposed of by Lowe's in
its sole and absolute discretion.
3. UTILITIES. Licensee shall be responsible for arranging and paying
for all utility services required or used on the Premises during the License
Term including, without limitation , gas, electricity, cable, telephone, water
and sewage.
4. RELEASE. Licensee unconditionally, irrevocably and absolutely
releases, acquits, remises and forever discharges Lowe's and Lowe's past,
present and future directors , shareholders, officers, employees, agents,
attorneys, representatives, subsidiaries and affiliates , and its and their
predecessors, successors and assigns from any and all claims, causes of action ,
suits, controversies, demands, causes of action and liabilities, and hereby
finally, unconditionally, irrevocably and absolutely waives any and all offsets
and defenses, in each case whether known or unknown, absolute or contingent,
matured or unmatured, presently existing or hereafter discovered, at law, in
equity or otherwise, whether arising by statute, common law, in contract, in
tort or otherwise, that Licensee may now have or that might subsequently accrue
to it against Lowe's including any matters arising out of or connected with
(directly or indirectly), or pertaining to this Agreement. Licensee further
agrees to indemnify and hold Lowe's harmless with respect to any and all claims
(including reasonable attorneys' fees) for damages to the Premises or to persons
or property which in any way are related to occurrences upon the Premises during
the License Term, unless directly caused by Lowe's, as well as for any breaches
of this Agreement. This indemnification shall survive the expiration or earlier
termination of this Agreement.
5. INSURANCE. Licensee, at its sole cost and expense, shall obtain and
keep in force until the termination of this Agreement as to the Premises
commercial general liability insurance , issued by a company authorized to
transact business in Ohio in accordance with its past practices and the terms of
the Lease, which existed immediately prior to its termination. Licensee shall
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name Lowe's on any insurance policies required under this paragraph as an
additional insured. All liability policies maintained by Licensee shall be
written as primary policies, not contributing with and not in excess of coverage
that any other party may carry. Licensee shall, upon the written request of
Lowe's, promptly furnish Lowe's with one (1) or more certificates of insurance
evidencing the existence of the insurance required to be carried pursuant to
this Agreement. The policies may not be modified or terminated without thirty
(30) days prior written notice to Lowe's. Licensee shall be solely responsible
for obtaining and maintaining insurance on its personal property located in the
Premises, and Lowe's shall not be responsible in any manner for any loss of or
damage to such personal property during the License Term unless directly caused
by Lowe's.
6. ESCROW AGREEMENT. In order to secure Licensee's obligations under
this Agreement, Licensee shall contemporaneously with the execution of this
Agreement, deposit the amount of $250,000 into an escrow account (the "Escrow
Funds") to be held by Lawyers Title Insurance Company (the "Escrow Agent") in
accordance with the terms and conditions of the Escrow Agreement attached hereto
as Exhibit B.
7 COMPLIANCE WITH LEASE. Licensee covenants and agrees that Licensee's
operations and activities on the Premises during the License Term (including,
but not limited to, Licensee's going out of business sale) shall be conducted in
strict accordance with the terms and conditions of the Lease, which existed
immediately prior to its termination, unless such compliance would be obviated
by the demolition of the building or other improvements upon the Premises.
Licensee further covenants and agrees to comply with all of the terms and
conditions of the Lease, which existed immediately prior to its termination,
during the License Term as if Licensee were still the Tenant thereunder, and
agrees that Licensee shall not occupy the Premises in any manner that is
inconsistent with the terms and conditions of the Lease, which existed
immediately prior to its termination. If Licensee's conduct constitutes a
default under the Lease or the Lowe's Lease and does not remedy such default
within ten (10) days of notice of such default, Lowe's shall be entitled to
terminate this Agreement, to cure the Licensee's default and to pursue such
remedies as may be available at law or in equity in connection with such
default. Licensee shall immediately notify Lowe's in writing of any notice of
default received by Licensee with respect to the Lowe's Lease.
8. LIENS. Licensee will not, under any circumstances, suffer or permit
any lien to attach to the Premises or any portion thereof. If any such lien be
asserted, Licensee shall pay and procure the immediate discharge thereof.
9. MAINTENANCE. Licensee agrees to maintain the Premises in good
condition and state of repair during the License Term and shall not permit the
existence of any noxious, dangerous, hazardous or illegal condition upon the
Premises; provided, however, that Licensee shall not be required to make any
repairs to any building or other improvements upon the Premises which would be
obviated by the demolition thereof.
10. ABANDONMENT. If Licensee abandons the Premises at any time during
the License Term, Lowe's may, at its option, terminate this License Agreement by
written notice to Licensee,
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whereupon the License Term shall expire, Lowe's shall be entitled to immediate
possession of the Premises, and this Agreement shall terminate.
11. THOMASVILLE SUBTENANT. Licensee represents and warrants that the
Sublease dated on or about June 22, 1998 with Mattress City and Furniture, Inc.
d/b/a Thomasville Home Furnishings ("Thomasville") has expired pursuant to the
terms and conditions contained therein , and that as of the Effective Date, no
third party has a present right to possession of the Premises nor will any third
party be in possession or have the right to possess the Premises as of the
termination of this Agreement, except for Lowe's or anyone claiming through
Lowe's.
12. FAILURE TO VACATE. Licensee is not paying Lowe's a separate license
fee to occupy the Premises (other than as specifically provided herein).
However, in the event that Licensee does not vacate the Premises, on or before
the expiration of the License Term, Licensee shall be liable to Lowe's for a
$25,000.00 per day holdover fee for each day Licensee or any party claiming
through Licensee occupies the Premises subsequent to the expiration of the
License Term, and Lowe's shall be entitled to draw on the Escrow Funds up to
$25,000 for each day that Licensee or any party claiming through Licensee fails
to vacate the Premises. The parties hereto acknowledge the difficulty of
ascertaining Lowe's actual delay damages and therefore agree that the above
amounts are a good faith attempt to identify and quantify Lowe's actual damages
and, as such, do not constitute a penalty and that the remedy set forth is in
addition to any and all other remedies available to Lowe's under this Agreement
or at law or in equity. The parties agree that failure to cease the activities
described in Paragraph 1 and vacate the Premises following termination of this
Agreement will cause Lowe's irreparable harm, for which Lowe's has no adequate
remedy at law. The parties further agree that that essence of this Agreement is
the timely cessation of Licensee's activities on the Premises and termination of
Licensee's incidental possession thereof, and that no interest of the Licensee
in continuing activities on the Premises can outweigh Lowe's interest in
obtaining prompt possession of all of the Premises, free from interference,
immediately upon termination of this Agreement.
13. NOTICES. All notices, demands and requests required or permitted to
be given under this Agreement (collectively the "Notices") must be in writing
and shall be deemed to have been given (i) when hand delivered, (ii) three (3)
days after being deposited in the United States Mail, (iii) when delivered by
overnight express mail carrier for next business day delivery (for example,
Federal Express), or (iv) when sent by facsimile transmission with verification
received, and followed by delivery in accordance with clauses (i), (ii) or (iii)
above, to the addresses set forth below:
If to Licensee : D.I.Y. Home Warehouse, Inc.
0000 Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxxx 00000
Attn: Xx. Xxxxx Xxxxx
with a copy to: Xxx Xxxxxxxx, Esq.
Cavitch, Familo, Xxxxxx & Xxxxxxx
Xxxx Xxxx Xxxxxxxx, 00xx Xxxxx
00
00
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
and a copy to: Xxxx X. Xxxxxxxxxxx, Xx.
Edgemere Enterprises, Inc.
00 Xxxx Xxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
If to Lowe's Lowe's Home Centers, Inc.
Xxxxxxx 000 Xxxx
X.X. Xxx 0000
(Box Office Zip Code - 28656-0001)
North Xxxxxxxxxx, X.X. 00000
Attn: Property Management Dept. (REO)
with a copy to: Xxxx'x Home Centers, Inc.
Xxxxxxx 000 Xxxx
X.X. Xxx 0000
(Box Office Zip Code - 28656-0001)
North Xxxxxxxxxx, X.X. 00000
Attn: Legal Dept. (REO)
and a copy to: Xxxxx X. Xxxx, Esq.
Xxxxx, Xxxx and Xxxxxxxx, X.X.
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxx Xxxxx, Xxxxxxxx 00000
14. ASSIGNMENT. Licensee shall have no right to assign this Agreement
or any rights conferred hereunder, the parties acknowledging and agreeing that
the license herein granted is personal to Licensee and shall not inure to the
benefit of any other party.
15. INSPECTION. Lowe's and their agents shall have the right at all
reasonable times upon reasonable advance notice, except in the case of an
emergency or in order to remedy any uncured default under the Lowe's Lease, for
all purposes during the License Term (as the case may be) to enter the Premises.
16. DEFAULT. In the event Licensee fails to observe the terms of this
Agreement, Licensee shall be in default hereunder, and Lowe's shall be entitled
to terminate this Agreement and to such remedies as may be available at law or
in equity in connection with such default. In case of any action or preceding to
compel compliance with, or for a breach of, the terms and conditions of this
Agreement, the prevailing party as determined by the court, shall be entitled to
recover from the losing party all costs and fees of such action or proceeding,
including, but not limited to, reasonable attorney's fees. When it appears in
the sole and reasonable discretion of Lowe's, that Licensee has willfully taken
actions that make it impossible or unlikely that Licensee will comply with the
conditions of this Agreement, Lowe's may declare a default. If,
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within 24 hours, Licensee has not proven to the satisfaction of Lowe's that it
is ready and able to comply with the terms of this Agreement, Lowe's shall be
entitled to pursue all remedies provided in this Agreement or otherwise
available at law or equity.
17. NO LANDLORD-TENANT RELATIONSHIP. This Agreement is not intended to
create a Landlord-Tenant relationship between Lowe's and Licensee, it being
expressly understood by the parties hereto that the sole purpose of this
Agreement is to permit Licensees to carry out those activities specified in
Paragraph i for a limited time subsequent to the Closing.
18. MISCELLANEOUS.
(a) No delay of Lowe's in enforcing any right, remedy, privilege or
recourse accorded to Lowe's, either by the express terms hereof or by law, shall
affect, diminish, suspend or exhaust any of such rights, remedies, privileges or
recourses.
(b) None of the covenants, terms or conditions of this Agreement
shall in any manner be altered, waived, modified, changed or abandoned, except
by a written instrument , duly signed and acknowledged, and delivered by the
other party, and not otherwise.
(c) Time is of the essence of this Agreement and of each and every
one of the provisions hereof.
(d) This Agreement shall constitute the entire agreement between
the parties relative to the subject matter hereof, and shall supercede any prior
agreement or understanding, if any, whether written or oral.
(e) This Agreement shall be construed according to Ohio law. The
headings of this Agreement are for the purpose of reference only and shall not
limit or define the meaning of any provision of this Agreement.
(f) This Agreement shall be executed on the date and year above
first written in one or more counterparts, each of which shall be an original
and all of which take together shall be one and the same instrument.
[Signature Blocks Appear on Next Page]
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IN WITNESSETH WHEREOF, the parties have executed this Agreement as of
the Effective Date.
LOWE'S:
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LOWE'S HOME CENTERS, INC.
By:
---------------------------------------
Name:
--------------------------------------
Title:
------------------------------------
LICENSEE:
---------
D.I.Y. HOME WAREHOUSE, INC.
By:
---------------------------------------
Name:
--------------------------------------
Title:
------------------------------------
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EXHIBIT A TO LICENSE FOR USE AGREEMENT
Legal Description
Situated in the City of Mentor, County of Lake and State of Ohio, and known as
being part of the Merry Lot, in original Mentor Township and Xxx 00, Xxxxx 0 in
original Concord Township, in Ranges 8 and 9, Township 10 of the Connecticut
Western Reserve, now being part of lands owned by Xxxxxxx/West Finance Partners
V, L.P., as currently recorded in Volume 572, page 596, of Lake County Deed
Records and further bounded and described as follows:
Beginning at the intersection of the centerlines of Mentor Avenue 60' (State
Route 20) and Old Johnnycake Ridge Road 60', at a PK nail found, THENCE N
60+dg35'26" E along said centerline of Mentor Avenue, a distance of 17.82 feet
to an angle point and a PK nail found; THENCE N 45+dg49'40" E, continuing along
said centerline of Mentor Avenue a distance of 188.12 feet to the principal
place of beginning of the parcel herein described;
Course No.1 - Thence N 45+dg49'40" E, continuing along said centerline of Mentor
Avenue a distance of 419.29 feet to a point on same;
Course No.2 - Thence S 45+dg55'57" E, passing through a 5/8" capped rebar pin
set at 30.01 feet, along the westerly line of lands owned by Valvoline Instant
Oil Change as recorded in Volume 504, Page 431 of Lake County deed records, a
total distance of 234.30 feet to a PK nail set;
Course No.3 - Thence N 44+dg04'03" E, along the southerly line of lands of said
Valvoline Instant Oil Change, a distance of 140.00 feet to a PK nail set;
Course No.4 - Thence N 45+dg55'57" W, along the easterly line of lands of said
Valvoline Instant Oil Change, passing by a PK nail found 0.08' S and 0.08' E at
199.99 feet, a total distance of 230.00 feet to a point on the centerline of
Mentor Avenue;
Course No.5 - Thence N 45+dg49'40" E, along said centerline of Mentor Avenue, a
distance of 56.65 feet to an angle point and a monument box found;
Course No.6 - Thence N 38+dg11'08" E, continuing along said centerline of Mentor
Avenue, a distance of 2.76 feet to a point on same;
Course No. 7 - Thence S 47+dg30'03" E, passing by a 1/2" iron pin found 0.23' S
and 0.07' E at 30.09 feet, along the westerly line of lands owned by the Concord
Investment Company as recorded in Volume 829, Pages 600-601 of the Lake County
deed records, a total distance of 707.54 feet to a 1" iron pipe found 0.13' N
and 0.15' W at the northeasterly corner of lands owned by Landmark Homes, Inc.
as recorded in Volume 1018, Page 1165 of the Lake County deed records;
Course No.8 - Thence S 44+dg03'24" W, along the northerly line of lands of said
Landmark Homes, Inc. and the northerly line of lands owned by Xxxxx X. and
Xxxxxxx X. Xxxxxxxxx as recorded by record number 990024034 of Lake County deed
records, passing by a 1" iron pipe found 0.57' N and 0.55' E at 773.56 feet, a
total distance of 803.60 feet to a point on the centerline of Old Johnnycake
Ridge Road;
Course No. 9 - Thence N 48+dg59'24" W, along said centerline, a distance of
528.72 feet to a point on same;
Course No.10 - Thence N 45+dg54'54" E, passing
by a 5/8" iron pin found 0.26 S and 0.52' W at 30.11 feet, along the southerly
line of lands owned by Xxxxxx Family Realty, Ltd. as recorded in Volume 1174,
Pages 1133-1134 of the Lake County deed records, a total distance of 205.00 feet
to a 5/8" iron pin found 0.41' S and 0.94' W of the southeasterly corner of said
Xxxxxx Family Realty, Ltd. lands;
Course No.11 - Thence N 48+dg59'24" W, along the easterly line of said lands
owned by Xxxxxx Family Realty, Ltd., passing by a 5/8" iron pin found 0.86' S
and 1.20' W at 174.89 feet, a total distance of 205.00 feet to a point in the
centerline of said Mentor Avenue, said point being the principal place of
beginning, and containing 510,702 square feet (11.7241 acres) according to a
survey done in October 2000, by Xxxxx X. Xxxxxxxx, P.S. #8085, be the same more
or less, but subject to all legal highways and
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easements of record. Bearings cited within the above description are to an
assumed meridian and indicate angles only.
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EXHIBIT B TO LICENSE FOR USE AGREEMENT
Form of Escrow Agreement
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") is made effective on the ____ day
of _________, 2001 (the "Effective Date"), by and between XXXX'X HOME CENTERS,
INC., a North Carolina corporation ("Lowe's"), D.I.Y. HOME WAREHOUSE, INC., an
Ohio corporation ("D.I.Y.") and LAWYERS TITLE INSURANCE COMPANY ("Escrow Agent")
(Lowe's, D.I.Y. and Escrow Agent are referred to herein as the "Parties" and
individually as a "Party").
RECITALS
X. Xxxx'x and D.I.Y. have entered into a Termination of Lease Agreement
of even date herewith, wherein D.I.Y. agreed to terminate all of its rights,
title and interest in and to that certain Assignment and Assumption of Lease and
Sublease between Kmart Corporation, as Assignor, and D.I.Y., as Assignee, dated
December 22, 1994 (the "Lease") for certain site improvements and real property
located in Lake County, Ohio, which is more particularly described therein (the
"Premises").
B. Contemporaneous with the date of this Agreement, Lowe's has acquired
a leasehold interest in and to the Premises (the "Lowe's Lease") and D.I.Y. has
terminated its Lease with respect to the Premises.
X. Xxxx'x and D.I.Y. have also entered into a License for Use Agreement
of even date herewith, wherein Lowe's granted to D.I.Y. a temporary license for
use of the Premises by Licensee from the Effective Date thereof through and
including the date which is ninety (90) days from the Effective Date, for the
purposes set forth therein.
D. Pursuant to the License for Use Agreement, D.I.Y. is required on
today's date to deposit the amount of $250,000 with Escrow Agent.
C. The Parties wish to provide for the terms upon which such funds
shall be held, distributed, and applied.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. APPOINTMENT OF THE ESCROW AGENT. Lowe's and D.I.Y. hereby appoint
the Escrow Agent to act as escrow agent hereunder, and the Escrow Agent hereby
accepts such appointment
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and agrees to perform the duties hereinafter set forth in accordance with the
terms and conditions of this Agreement.
2. DELIVERY OF ESCROW FUNDS. Concurrently with the execution of this
Agreement by the Parties, D.I.Y. has delivered $250,000 with the Escrow Agent
(together with any interest accruing thereon, the "Escrow Funds"). Escrow Agent
hereby acknowledges receipt of the Escrow Funds and agrees to hold and release
the Escrow Funds in accordance with the terms and conditions of this Agreement.
3. MAINTENANCE OF ESCROW FUNDS. The Escrow Funds shall be held in an
interest bearing account with an institution as may be mutually agreed to by
Lowe's and D.I.Y. All accrued earnings on the Escrow Funds shall be paid to the
Party to whom the Escrow Funds are required to be distributed pursuant to the
terms of this Agreement. Escrow Agent shall provide a statement to Lowe's and
D.I.Y. of the principal and interest accrued on the Escrow Funds.
4. RETENTION AND RELEASE OF ESCROW FUNDS. Pursuant to the License for
Use Agreement, Lowe's has on today's date granted to D.I.Y. a temporary license
for use of the Premises by D.I.Y. from the Effective Date thereof through and
including the date which is ninety (90) days from the Effective Date (the
"License Term"). Pursuant to the License for Use Agreement, D.I.Y. has agreed to
vacate the Premises on or before the expiration of the License Term.
Furthermore, D.I.Y. has agreed to pay a holdover fee in the amount of $25,000
for each day D.I.Y. or any party claiming through D.I.Y. occupies the Premises
subsequent to the expiration of the License Term. As security for the above
obligations of D.I.Y. in the License for Use Agreement and to ensure that D.I.Y.
vacates the Premises on or before the expiration of the License Term, the Escrow
Funds will be held by Escrow Agent until such time as Escrow Agent receives
written notice from Lowe's and D.I.Y. that D.I.Y. has vacated the Premises in
accordance with the terms of the License for Use Agreement. Escrow Agent shall
release the balance of the Escrow Funds to D.I.Y. immediately upon written
notice from Lowe's and D.I.Y. that D.I.Y. has vacated the Premises in accordance
with the terms of the License for Use Agreement. Lowe's shall be permitted to
draw up to $25,000 for each day that D.I.Y. occupies the Premises subsequent to
the expiration of the License Term. For each day that D.I.Y. occupies the
Premises subsequent to the expiration of the License Term, Escrow Agent shall
release up to $25,000 of the Escrow Funds upon written notice from Lowe's that
D.I.Y. has occupied the Premises subsequent to expiration of the License Term
and that Lowe's is entitled to receive a $25,000 per day holdover fee pursuant
to the terms of the License for Use Agreement. In no event shall Escrow Agent
release the Escrow Funds except in strict accordance with the terms hereof.
5. CONFLICTING INSTRUCTIONS. If Escrow Agent receives conflicting
instructions in notices from D.I.Y. and Lowe's, Escrow Agent will hold the
Escrow Funds until receipt of either: (i) a certificate executed by both D.I.Y.
and Lowe's directing the disposition of the Escrow Funds in a like manner; or
(ii) a certified copy of a final non-appealable order of a court of competent
jurisdiction or arbitrators ordering Escrow Agent to dispose of the Escrow
Funds. Upon receipt of any such certificate or order, Escrow Agent will promptly
comply with its terms.
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6. INTERPLEADER. Notwithstanding anything in this Agreement to the
contrary, in the event of a dispute between D.I.Y. and Lowe's arising prior to
or at the time of the delivery or other disposition of the Escrow Funds by
Escrow Agent pursuant hereto, which dispute shall be sufficient, in the sole
discretion of Escrow Agent, to justify its doing so, Escrow Agent shall be
entitled to either: (i) hold the Escrow Funds until receipt by the Escrow Agent
of an authorization in writing, executed by all persons having an interest in
said dispute, directing the disposition of the Escrow Funds, or in the absence
of such authorization, (ii) tender the Escrow Funds into the registry or custody
of any court of competent jurisdiction, together with such legal pleadings as it
may deem appropriate, and thereupon Escrow Agent shall be discharged from all
further duties and liabilities under this Agreement. Any such legal action may
be brought in such court that Escrow Agent shall determine to have jurisdiction
thereof. Escrow Agent's determination of whether a dispute exists between D.I.Y.
and Lowe's shall be binding and conclusive upon all parties hereto,
notwithstanding any contention that no dispute exists. All costs and expenses
incurred by Escrow Agent in taking any action pursuant to this paragraph shall
be covered by and paid pursuant to the indemnification of Escrow Agent contained
in the following paragraph.
7. LIABILITY OF THE ESCROW AGENT. The Escrow Agent is not liable to
Lowe's or D.I.Y., or anyone else, for any action or failure to act by the Escrow
Agent hereunder, except for the Escrow Agent's own negligence or intentional
misconduct. Both Lowe's and D.I.Y. agree to indemnify and hold harmless the
Escrow Agent against all losses, liabilities, claims, actions, damages, costs
and expenses, including reasonable attorneys' fees and disbursements, arising in
connection with this Agreement, except those that arise from the Escrow Agent's
own negligence or intentional misconduct. This indemnification obligation shall
survive the termination of the escrow under this Agreement. The Escrow Agent may
act in good faith pursuant to the advice of its counsel with respect to any
matter relating to this Agreement.
8. TERMINATION OF AGREEMENT. The escrow under this Agreement shall be
deemed to have automatically terminated upon payment of the Escrow Funds in
accordance with Section 4 above.
9. ESCROW FEE. Escrow Agent will be compensated for services rendered
hereunder in the amount of $___________. Lowe's and D.I.Y. shall each pay 50% of
Escrow Agent's fee at Closing.
10. NOTICES. Any notices, requests or other communications required or
permitted to be given hereunder shall be in writing and shall be deemed given
(except as otherwise provided herein) when received if (i) delivered by hand,
(ii) deposited with a widely recognized national overnight courier service for
next business day delivery, (iii) mailed by United States registered or
certified mail, return receipt requested, postage prepaid, or (iv) delivered by
facsimile or electronic mail with verification received, and in each case
addressed to each Party at its address set forth below:
To D.I.Y.: Confidential
------------
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D.I.Y. Home Warehouse, Inc.
0000 Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxxx 00000
Attn: Xx. Xxxxx Xxxxx
with a copy to: Xxx Xxxxxxxx, Esq.
Cavitch, Familo, Xxxxxx & Xxxxxxx Co., L.P.A.
East Ohio Building, 14th Floor
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
and a copy to: Xx. Xxxx X. Xxxxxxxxxxx, Xx.
Edgemere Enterprises, Inc.
00 Xxxx Xxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
to Lowe's: Xxxx'x Home Centers, Inc.
Xxxxxxx 000 Xxxx
X.X. Xxx 0000
(Box Office Zip Code - 28656-0001)
North Xxxxxxxxxx, X.X. 00000
Attn: Property Management Dept. (REO)
with a copy to: Xxxx'x Home Centers, Inc.
Xxxxxxx 000 Xxxx
X.X. Xxx 0000
(Box Office Zip Code -28656-0001)
North Xxxxxxxxxx, X.X. 00000
Attn: Legal Dept. (REO)
and: Xxxxx X. Xxxx, Esq.
Xxxxx, Xxxx & Xxxxxxxx, X.X.
000 X. Xxxxxxxx
Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
to Escrow Agent: Lawyer's Title Insurance Company
0000 X. 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxx 00000
Attn: Xxx Xxxxxxx
Rejection or other refusal to accept or inability to deliver because of
changed address of which no notice was given shall be deemed to be receipt of
the notice, request or other communication. By giving at least five (5) days
prior notice thereof, any Party may from time to time at any time change its
mailing address hereunder.
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11. COUNTERPARTS. This Agreement may be executed by the Parties on any
number of separate counterparts, and all such counterparts so executed
constitute one agreement binding on all the Parties notwithstanding that all
Parties are not signatories to the same counterpart.
12. GOVERNING LAW. This Agreement and the rights and obligations of the
Parties hereunder are to be governed by and construed and interpreted in
accordance with the laws of the State of Ohio applicable to contracts made and
to be performed wholly within Ohio, without regard to choice or conflict of laws
rules.
13. SUCCESSORS AND ASSIGNS. All provisions of this Agreement are
binding upon, inure to the benefit of and are enforceable by or against, the
Parties and their respective successors and assigns.
[SIGNATURE BLOCKS TO FOLLOW ON THE NEXT PAGE]
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IN WITNESS WHEREOF, the Parties have executed this Agreement effective
as of the Effective Date.
XXXX'X HOME CENTERS, INC. D.I.Y. HOME WAREHOUSE, INC.
By: By:
----------------------------- ------------------------------
Name: Name:
----------------------------- ------------------------------
Title: Title:
-------------------------- ---------------------------
LAWYERS TITLE INSURANCE
COMPANY
By:
-----------------------------
Name:
-----------------------------
Title:
--------------------------
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