Exhibit 10.72
LEASE
LANDLORD: JLP-HARVARD PARK, LLC
0000 XXXXXX XXXXXX
XXXXXXXX XX 00000-0000
TENANT: DSW INC.
0000 XXXX XXXXX XXXXXX
XXXXXXXX, XXXX 00000
PREMISES: Approximately 20,000 square feet at
Chagrin Highlands, Warrensville, Ohio
TABLE OF CONTENTS
Page
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SECTION 1. PREMISES..................................................... 3
SECTION 2. LANDLORD'S AND TENANT'S WORK................................. 3
SECTION 3. TERM......................................................... 5
SECTION 4. MINIMUM RENT................................................. 6
SECTION 5. PERCENTAGE RENT.............................................. 7
SECTION 6. TITLE ENCUMBRANCES; LANDLORD REPRESENATATIONS,
WARRANTIES AND COVENANTS................................................. 8
SECTION 7. RIGHT TO REMODEL............................................. 10
SECTION 8. UTILITIES.................................................... 10
SECTION 9. GLASS........................................................ 11
SECTION 10. PERSONAL PROPERTY............................................ 11
SECTION 11. RIGHT TO MORTGAGE............................................ 11
SECTION 12. SUBLEASE OR ASSIGNMENT....................................... 11
SECTION 13. COMMON AREAS................................................. 12
SECTION 14. OPERATION OF COMMON AREAS.................................... 12
SECTION 15. COMMON AREA MAINTENANCE, TENANT'S SHARE...................... 13
SECTION 16. EMINENT DOMAIN............................................... 15
SECTION 17. TENANT'S TAXES............................................... 15
SECTION 18. RISK OF GOODS................................................ 15
SECTION 19. USE AND OCCUPANCY............................................ 15
SECTION 20. NUISANCES.................................................... 18
SECTION 21. WASTE AND REFUSE REMOVAL..................................... 18
SECTION 22. DAMAGE AND DESTRUCTION OF PREMISES........................... 18
SECTION 23. LANDLORD REPAIRS............................................. 19
SECTION 24. TENANT'S REPAIRS............................................. 19
SECTION 25. COVENANT OF TITLE AND PEACEFUL POSSESSION.................... 20
SECTION 26. TENANT'S AND LANDLORD'S INSURANCE; INDEMNITY................. 21
SECTION 27. REAL ESTATE TAXES............................................ 23
SECTION 28. TENANT'S INSURANCE CONTRIBUTION.............................. 24
SECTION 29. FIXTURES..................................................... 25
SECTION 30. SURRENDER.................................................... 25
SECTION 31. HOLDING OVER................................................. 25
SECTION 32. NOTICE....................................................... 25
SECTION 33. DEFAULT...................................................... 25
SECTION 34. WAIVER OF SUBROGATION........................................ 28
SECTION 35. LIABILITY OF LANDLORD; EXCULPATION........................... 28
SECTION 36. RIGHTS CUMULATIVE............................................ 28
SECTION 37. MITIGATION OF DAMAGES........................................ 29
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SECTION 38. SIGNS........................................................ 29
SECTION 39. ENTIRE AGREEMENT............................................. 29
SECTION 40. TENANT'S PROPERTY............................................ 29
SECTION 41. BINDING UPON SUCCESSORS...................................... 30
SECTION 42. HAZARDOUS SUBSTANCES......................................... 30
SECTION 43. TRANSFER OF INTEREST......................................... 31
SECTION 44. ACCESS TO PREMISES........................................... 31
SECTION 45. HEADINGS..................................................... 31
SECTION 46. NON-WAIVER................................................... 31
SECTION 47. SHORT FORM LEASE............................................. 31
SECTION 48. ESTOPPEL CERTIFICATE......................................... 31
SECTION 49. TENANT'S REIMBURSEMENT....................................... 32
SECTION 50. TENANT'S TERMINATION RIGHT................................... 32
SECTION 51. NO BROKER.................................................... 32
SECTION 52. UNAVOIDABLE DELAYS........................................... 32
SECTION 53. TIMELY EXECUTION OF LEASE.................................... 33
SECTION 54. ACCORD AND SATISFACTION...................................... 33
SECTION 55. WAIVER OF JURY TRIAL......................................... 33
SECTION 56. LEASEHOLD FINANCING.......................................... 33
LIST OF EXHIBITS:
EXHIBIT "A" SITE PLAN
EXHIBIT "B" LEGAL DESCRIPTION
EXHIBIT "C" LANDLORD'S WORK
EXHIBIT "D" TENANT'S WORK
EXHIBIT "E" EXISTING USE EXCLUSIVES AND PROHIBITED USES
EXHIBIT "F" SIGNAGE
EXHIBIT "G" TENANT IMPROVEMENTS
EXHIBIT "H" LANDLORD'S WAIVER
EXHIBIT "I" RECOGNITION AND NON-DISTURBANCE AGREEMENT (FEE MORTGAGEE)
ii
LEASE
THIS AGREEMENT OF LEASE, made this 7th day of April, 2006, by and
between JLP-HARVARD PARK, LLC, an Ohio limited liability company (hereinafter
referred to as "Landlord"), with offices at 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000-0000, and DSW INC., an Ohio corporation (hereinafter referred to as
"Tenant") with offices at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000.
WITNESSETH:
SECTION 1. PREMISES
(a) Landlord, in consideration of the rents to be paid and covenants and
agreements to be performed by Tenant, does hereby lease unto Tenant premises
comprised of approximately 20,000 square feet of leasable space (the "Premises")
in the shopping center owned by Landlord containing approximately 230,000 square
feet of leasable space on approximately 25 acres and commonly known as Chagrin
Highlands, in the City of Cleveland, County of Cuyahoga and State of Ohio (the
"Center"). The location, size, and area of the Premises and of the Center as of
the Commencement Date (defined below) will be substantially as shown on Exhibit
"A" attached hereto and made a part hereof (the "Site Plan"). A legal
description of the Center is attached hereto as Exhibit "B" and made a part
hereof.
(b) The square footage specified in Section 1(a) shall be certified to
Tenant by Landlord's architect prior to the Rent Commencement Date (defined in
Section 3(b) below). Tenant shall have ninety (90) days from the receipt of such
certification to verify or object to Landlord's measurement. If Tenant objects
to Landlord's measurement within said ninety (90) day period, the parties shall
work together in good faith to resolve the differing square footage
calculations. In computing the square footage of the Premises, the Premises
shall be measured from the exterior surface of exterior walls and the middle of
interior walls, excluding the square footage of any mechanical and utility
rooms, escalators, elevators, stairs and any other common area space located
within the Premises. If the square footage of the Premises as verified and
confirmed by Tenant pursuant to this Section 1(b) is less than the size
specified in Section 1(a), Base Rent (defined in Section 4(a) below) and other
charges shall be proportionately adjusted, but the foregoing shall not be
construed as permitting a material variance in dimensions or area.
(c) Landlord covenants that the Center is or shall be developed in
accordance with the Site Plan and that it shall be used as a retail shopping
center throughout the term of this Lease. Landlord shall not take or consent to
any action which materially adversely affects access to, visibility of, parking
for or use of the Premises. Notwithstanding the foregoing, no modification or
replacement to the Center shall (i) reduce the ratio of parking spaces (for
standard size American cars) to gross leasable area of buildings in the Center
below five (5) spaces per 1,000 square feet of leasable space, (ii) alter or
make any changes, including any reduction or rearrangement of parking spaces, to
that portion of the Center indicated on the Site Plan as the "Protected Area",
(iii) interfere with truck access to the loading doors of the Premises, (iv)
materially adversely interfere with customer access to the Premises, (v)
materially adversely interfere with the visibility of the Premises from the
roads providing direct access to the Center, or (vi) result in the construction
of any buildings in the area designated "No Build Area" on the Site Plan. In
performing any construction work, repairs or maintenance in the Center permitted
under this Lease after Tenant has taken physical possession of the Leased
Premises, Landlord shall use good faith, commercially reasonable efforts to
prevent any interference with parking for, access to or visibility or use of the
Premises or the business of Tenant or any subtenant or licensee of Tenant.
SECTION 2. LANDLORD'S AND TENANT'S WORK
(a) Prior to delivery of possession of the Premises to Tenant, Landlord
shall construct, at its expense, the improvements to the Premises described on
Exhibit "C" attached hereto and made a part hereof consistent with plans and
specifications approved by Tenant as set forth in Section 2(e) below (the
"Landlord's Work"). Landlord agrees to deliver the Premises to Tenant with
Landlord's Work substantially completed (as defined in Section 2(c)) between
July
15, 2006 and September 15, 2006 (the "Delivery Period"). Landlord shall give
Tenant notice (the "Estimated Delivery Notice") no later than April 1, 2006 of
the status of Landlord's construction and the estimated date that Landlord shall
deliver the Premises to Tenant with Landlord's Work substantially completed (the
"Estimated Delivery Date"). Landlord may revise the Estimated Delivery Date any
time prior to May 1, 2006 (the "Final Delivery Notice Date"), by which time
Landlord shall have given Tenant a final notice (the "Final Delivery Notice") of
a firm delivery date (the "Final Delivery Date") upon which the Landlord's Work
shall be substantially completed and the Leased Premises delivered to Tenant.
Upon the sending of the Final Delivery Notice, Landlord shall have no further
right to modify the Final Delivery Date. Neither the Estimated Delivery Date nor
the Final Delivery Date shall be (y) earlier than (i) thirty (30) days after the
date Tenant receives the Estimated Delivery Notice or the Final Delivery Notice,
as applicable, or (ii) the first day of the Delivery Period or (z) later than
the last day of the Delivery Period. If Landlord does not provide a Final
Delivery Notice on or before the earlier of the Final Delivery Notice Date and
thirty (30) days prior to the Estimated Delivery Date or if the date provided
for in such Final Delivery Notice does not comply with the requirements of this
Section 2, the Estimated Delivery Date shall be deemed to be the Final Delivery
Date, provided such date complies with the requirements of this Section 2. If
Landlord does not provide an Estimated Delivery Date on or before the Final
Delivery Notice Date or if such date does not comply with the requirements of
this Section 2, then the Final Delivery Date shall be deemed to be the last day
of the Delivery Period.
(b) In the event that the Premises and Landlord's Work are not
substantially completed and delivered to Tenant on or before the Final Delivery
Date, the Base Rent due hereunder shall be adjusted so that, after the Rent
Commencement Date, Tenant shall receive a credit against Base Rent thereafter
due Landlord equal to one (1) day of Base Rent for each day after the Final
Delivery Date until delivery of the Premises is made to Tenant consistent with
the terms of this Lease, including substantial completion of the Landlord's
Work. Tenant shall not be obligated to accept possession of the Premises prior
to the later of (a) substantial completion of Landlord's Work, (b) the first day
of the Delivery Period and (c) the Final Delivery Date. Time is of the essence
regarding all dates set forth in this Section 2.
(c) For purposes of this Lease, the Landlord's Work shall be deemed
"substantially completed" when (i) all of the Landlord's Work has been completed
except for "punch list items" that do not affect the Tenant's use of or the
appearance of the Premises or Tenant's ability to perform Tenant's Work (as
defined in Section 2(f) below), (ii) Landlord has satisfied the requirements of
Section 2(g), and (iii) Tenant has been furnished with a fully executed
non-disturbance agreement from the holder(s) of any then existing Mortgages,
which agreement is consistent with Section 11 of this Lease. Landlord shall
complete the punch list items within thirty (30) days of the date Tenant
notifies Landlord of same. Upon performance of such punch list, Tenant shall
promptly acknowledge Landlord's completion thereof. Punch list items shall not
be deemed completed until an authorized representative of Tenant has provided
Landlord written acknowledgment of same. Landlord agrees that any and all work
performed by Landlord after delivery of the Leased Premises to Tenant shall not
unreasonably interfere with Tenant's performance of Tenant's Work, and Landlord
shall be responsible for any and all costs resulting from any such unreasonable
interference.
(d) Actual possession of the Premises shall have been delivered to Tenant
water-tight, free of Hazardous Substances, in a good, structurally sound
condition, with all of Landlord's Work substantially completed, which
substantial completion shall be evidenced by Landlord's architect to Tenant.
(e) The Landlord's Work and Tenant's Work shall be performed (i) in a good
and workmanlike manner and in accordance with plans and specifications approved
by the other party, which approval shall not be unreasonably withheld or delayed
and (ii) in compliance with all applicable governmental codes, laws, ordinances
and regulations.
(f) Landlord and Tenant agree that they shall conduct a joint walk through
of the Premises approximately two (2) weeks prior to the Final Delivery Date to
ascertain the status of Landlord's construction. Tenant agrees to provide, at
its expense, upon delivery of the Premises to Tenant, the improvements to the
Premises described on Exhibit "D" attached hereto and made a part hereof (the
"Tenant's Work").
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(g) Completion of Construction of Leased Premises. Prior to the Final
Delivery Date, Landlord shall satisfy the following conditions:
1. Landlord shall furnish Tenant with a temporary certificate of
occupancy and other necessary approvals which must be issued by the
appropriate governmental authorities prior to the commencement of
Tenant's Work and the occupancy and use of the Premises as
contemplated. Landlord agrees to provide a permanent certificate of
occupancy prior to Tenant's merchandising and, if required by the
issuing authority, the setting of fixtures for the Premises, and
otherwise as soon as available in the ordinary course of the issuing
authority's practice.
2. The architect engaged by Landlord shall execute a certificate of
completion that the Premises has been constructed in a good and
workmanlike manner in accordance with the plans and specifications
approved by Tenant and the other requirements for Landlord's Work
hereunder.
3. Tenant shall have been furnished with a fully executed original of
a commercially reasonable non-disturbance and attornment agreement
pursuant to Section 11 hereof.
4. Tenant shall have been notified no later than sixty (60) days prior
to the Final Delivery Date of all applicable local governmental
authority code requirements, if any, for the installation of Tenant's
fixtures at the Premises and for low voltage electrical work in
connection with the installation of Tenant's music, telephone and
security systems at the Premises.
5. Tenant shall have been furnished with a list of all subcontractors
who performed work on the Premises, along with direct contact
information for, the work discipline of, and the work performed by
each.
6. Tenant shall have been furnished with two (2) copies of all
contractors', subcontractors' and suppliers' warranties relating to
the Premises.
7. Tenant shall have been furnished with two (2) copies of all
operations and maintenance manuals relating to materials and systems
used or installed in the construction of the Premises.
8. Tenant shall have been furnished with two (2) copies of the record
drawings for the construction of the Premises, marked to reflect
actual locations of all components of the Premises.
(h) In addition to any guarantees provided to Tenant elsewhere in this
Lease, Landlord hereby unconditionally guarantees all of Landlord's Work against
defective workmanship and materials for one (1) year from the Commencement Date
(as defined in Section 3(a)).
(i) Landlord shall perform any additional work not required to be performed
by Tenant under this Lease in order for Landlord to obtain a permanent
certificate of occupancy for the Premises, whether such work relates to the
Premises or other portions of the Center.
SECTION 3. TERM
(a) The "Commencement Date" of this Lease shall be the later of (i) the
date actual, physical possession of the Premises is delivered to Tenant with the
Landlord's Work substantially completed and (ii) the Final Delivery Date.
(b) The initial term (the "Initial Term") of the Lease shall commence on
the earlier of (i) the date on which the Tenant opens for business in the
Premises, and (ii) sixty (60) days after the Commencement Date (the "Rent
Commencement Date") and end on the last day of the fifteenth (15th) full Lease
Year. The term "Lease Year" shall mean a period of twelve (12) consecutive
calendar months. The first Lease Year during the term hereof shall commence on
the first day of the first February following the Rent Commencement Date. Each
subsequent
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Lease Year shall begin on the anniversary of the first Lease Year. The period
from the Rent Commencement Date to the first day of the first February following
the Rent Commencement Date (the "Initial Period") shall be a partial Lease Year.
(c) If the Commencement Date has not occurred on or before September 15,
2006, then unless Tenant otherwise elects, the Commencement Date shall not occur
and Tenant shall not be obligated to accept delivery of the Leased Premises
until January 2, 2007. If for any reason, the Commencement Date has not occurred
by March 1, 2007, Tenant shall have the right and option to either (i) terminate
this Lease or (ii) elect that the Commencement Date not occur, and, thereby
defer delivery of the Leased Premises, until June 15, 2007. The remedies set
forth in this paragraph shall be in addition to any and all other rights and
remedies provided for Tenant in the Lease or available to Tenant in law or at
equity.
(d) Tenant shall have three (3) consecutive separate options to extend the
term of this Lease for successive renewal terms of five (5) Lease Years each.
Tenant may exercise each such renewal option by giving written notice to
Landlord at least one hundred eighty (180) days prior to the end of the then
current term or renewal term.
(e) The Initial Term and any renewal terms are hereinafter collectively
referred to as the "term".
(f) Beginning on the date of this Lease and ending on the Commencement
Date, Tenant, its employees and agents shall have the right to enter the
Premises or any part thereof at reasonable times during regular business hours
for the purpose of making such inspections as Tenant may deem reasonably
necessary. In consideration of Tenant's right to inspect the Premises, Tenant
agrees to indemnify, defend and hold Landlord harmless from any and all loss,
damage, claims, costs, demands or expenses (including reasonable attorney's
fees) resulting from such entry on the Premises by Tenant or its agents.
(g) From the date upon which the Premises are delivered to Tenant for its
work until the Commencement Date of the lease term, Tenant shall observe and
perform all of its obligations under this Lease (except Tenant's obligation to
operate and pay Base Rent, percentage rent and Tenant's Proportionate Share
(defined in Section 15(c) below) of "Maintenance Costs" (defined and provided
for in Section 15(b) hereof Real Estate Taxes (defined and provided for in
Section 27(b) hereof) and insurance (provided for in Section 28 hereof). In the
event Tenant fails to open for business within one hundred twenty (120) days
after the date possession of the Premises has been delivered to Tenant,
Landlord, in addition to any and all other available remedies, may require
Tenant to pay to Landlord, in addition to all other rent and charges herein, as
liquidated damages and not as a penalty, an amount equal to one-three hundred
sixty five thousandths (1/365) of the annual Base Rent for each day such failure
to open continues.
SECTION 4. MINIMUM RENT
(a) From and after the Rent Commencement Date, Tenant covenants and agrees
to pay on a monthly basis during the term "Base Rent" in the following amounts
to Landlord at the address listed above or such other place as Landlord may by
thirty (30) days' prior written notice to Tenant direct:
ANNUAL RENT ANNUAL
LEASE YEAR (BASED ON 12 MONTHS) MONTHLY RENT PER SQUARE FOOT
---------- -------------------- ------------ ---------------
1-5 (initial) $18.00 $30,000.00 $360,000.00
6-10 (initial) $19.80 $33,000.00 $396,000.00
11-15 (initial) $21.78 $36,300.00 $435,600.00
16-20 (option) $23.96 $39,933.33 $479,200.00
21-25 (option) $26.35 $43,916.67 $527,000.00
26-30 (option) $28.99 $48,316.67 $579,800.00
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The monthly installments of Base Rent payable under this Section 4 shall be paid
in advance on or before the first day of each calendar month from and after the
Rent Commencement Date during the term hereof without notice or demand therefor
and without any offsets or deductions whatsoever except as otherwise provided in
this Lease. Base Rent for any partial month shall be prorated based upon a
thirty (30) day month. Base Rent for any Initial Period shall be the same as the
Base Rent for the first Lease Year. As used in this Lease, "Rent" shall mean
Base Rent in addition to all other sums due and owing from Tenant to Landlord
under this Lease.
(b) In the event any sums required under this Lease to be paid are not
received when due, then all such amounts shall bear interest from the due date
thereof until the date paid at the rate of interest equal to two percent (2%)
over the prime rate in effect from time to time as established by National City
Bank, Columbus, Ohio (the "Interest Rate"), and shall be due and payable by
Tenant without notice or demand, Tenant shall pay the foregoing interest thereon
in addition to all default remedies of Landlord pursuant to Section 33 below.
(c) Notwithstanding anything herein contained to the contrary, Tenant shall
initially pay to Landlord as additional Rent, simultaneously with the payment of
Base Rent, payable in equal monthly installments, the estimated monthly amount
of Tenant's Proportionate Share of Maintenance Costs (provided for in Section 15
hereof), Real Estate Taxes (provided for in Section 27 hereof) and insurance
(provided for in Section 28 hereof).
SECTION 5. PERCENTAGE RENT
(a) Beginning with the first Lease Year, Tenant shall pay to Landlord, in
addition to Base Rent, upon the conditions and at the times hereinafter set
forth, percentage rent equal to two percent (2%) of Tenant's gross sales (as
hereinafter defined) in excess of the number obtained by dividing (a) Base Rent
for the applicable lease year by (b) the number .04. The annual percentage rent
shall be paid by Tenant to Landlord within ninety (90) days after the end of
each Lease Year. Each such payment shall be accompanied by a statement signed by
an authorized representative of Tenant setting forth Tenant's gross sales for
such Lease Year. For purposes of permitting verification by Landlord of the
gross sales reported by Tenant, Landlord shall have the right, not more than one
(1) time per Lease Year, upon not less than five (5) business days notice to
Tenant, to audit during normal business hours in Tenant's corporate office,
Tenant's books and records relating to Tenant's gross sales for a period of two
(2) years after the end of each Lease Year. Landlord agrees that no contingency
fee auditor shall be employed by Landlord for the purpose of conducting any such
audit. If such an audit reveals that Tenant has understated its gross sales by
more than three percent (3%) for any Lease Year, Tenant, in addition to paying
the additional percentage rent due, shall pay the reasonable cost of the audit
within thirty (30) days of Tenant's receipt of Landlord's demand for the same
and copies of all bills or invoices on which such cost is based.
(b) Each Lease Year shall constitute a separate accounting period, and the
computation of percentage rental due for any one period shall be based on the
gross sales for such Lease Year.
(c) The term "gross sales" as used in this Lease is hereby defined to mean
the gross dollar aggregate of all sales or rental or manufacture or production
of merchandise and all services, income and other receipts whatsoever of all
business conducted in, at or from any part of the Premises, whether for cash,
credit, check, charge account, gift or merchandise certificate purchased or for
other disposition of value regardless of collection. Should any departments,
divisions or parts of Lessee's business be conducted by any subleases,
concessionaires, licensees, assignees or others, then there shall be included in
Lessee's gross sales, all "gross sales" of such department, division or part,
whether the receipts be obtained at the Premises or elsewhere in the same manner
as if such business had been conducted by Lessee. Gross sales shall exclude the
following: (i) all credit, refunds, and allowances granted to customers; (ii)
all excise taxes, sales taxes, and other taxes levied or imposed by any
governmental authority upon or in connection with such sales; (iii) bulk sales
of goods in connection with the sale of Tenant's business; (iv) sales of
fixtures, furniture, equipment and other items not made in the ordinary course
of business; (v) salvage sales of damaged merchandise; (vi) discount sales made
to employees of the Tenant and Tenant's subsidiaries and affiliated
corporations, if any; (vii) exchanges of merchandise between Tenant's warehouse
or other stores and other similar movements of
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merchandise; (viii) returns to suppliers; (ix) the proceeds from vending
machines and coin operated telephones and commissions on such proceeds to the
extent such proceeds and commissions are less than five percent (5%) of Gross
Sales exclusive of such proceeds and commissions; (x) uncollectible customer
charges and bad checks; (xi) disallowed credit card amounts and credit card
service charges or fees retained by the credit card company; (xii) delivery
charges; and (xiii) customer credit insurance.
(d) The percentage rental, if any, shall be paid within ninety (90) days
after the end of each lease year, accompanied by a statement in writing signed
by Tenant setting forth its gross sales from the sale of all items for such
lease year. Tenant shall keep at its principal executive offices, where now or
hereafter located, true and accurate accounts of all receipts from the Premises.
Landlord, its agents and accountants, shall have access to such records at any
and all times during regular business hours for the purpose of examining or
auditing the same. Tenant shall also furnish to Landlord any and all reasonable
supporting data relating to gross sales and any deductions therefrom as Landlord
may reasonably require. Landlord agrees to keep any information obtained
therefrom confidential, except as may be required for Landlord's tax returns, or
in the event of litigation or arbitration where such matters are material.
(e) Tenant shall at all times maintain accurate records which shall be
available for Landlord's inspection at any reasonable time.
(f) If Landlord, for any reason, questions or disputes any statement of
percentage rental prepared by Tenant, then Landlord, at its own expense, may
employ such non-contingency fee accountants as Landlord may select to audit and
determine the amount of gross sales for the period or periods covered by such
statements. If the report of the accountants employed by Landlord shall show any
additional percentage rental payable by Tenant, then Tenant shall pay to
Landlord such additional percentage rental plus interest at one (1) point over
the prime rate, commencing on the date such percentage rentals should have been
paid, within thirty (30) days after such report has been forwarded to Tenant,
unless Tenant shall, within said thirty (30) day period, notify Landlord that
Tenant questions or disputes the correctness of such report. In the event that
Tenant questions or disputes the correctness of such report, the accountants
employed by Tenant and the accountants employed by Landlord shall endeavor to
reconcile the question(s) or dispute(s) within thirty (30) days after the notice
from Tenant questioning or disputing the report of Landlord's accountants. In
the event that it is finally determined by the parties that Tenant has
understated percentage rent for any Lease year by three percent (3%) or more,
Tenant shall pay the cost of the audit. Furthermore, if Tenant's gross sales
cannot be verified due to the insufficiency or inadequacy of Tenant's records,
then Tenant shall pay the cost of the audit. The cost of any audit resulting
from failure to report percentage rent after written notification of default
shall be at the sole cost of Tenant.
SECTION 6. TITLE ENCUMBRANCES; LANDLORD REPRESENATATIONS, WARRANTIES AND
COVENANTS
(a) Tenant's rights under this Lease are subject and subordinate to those
title matters set forth in Landlord's owner's title policy issued by Chicago
Title Insurance Company, being Policy No. 24510646, dated September 15, 2005, a
copy of which has been provided to Tenant, specifically including but not
limited to the terms and conditions of a certain Declaration of Covenants,
Conditions and Restrictions for Chagrin Highlands, dated May 4, 1999, executed
by the City of Cleveland, Ohio, as Declarant and filed for record on May 5, 1999
and recorded as Cuyahoga County Recorder's AFN 19990551070, as subsequently
supplemented and amended (collectively, the "Declaration"). Tenant agrees that
it shall abide by the terms and conditions of the Declaration.
(b) Landlord covenants, represents and warrants to Tenant that: (i) the
Declaration has not been modified, amended or terminated; (ii) the Declaration
is currently in full force and effect; (iii) to its actual knowledge as of the
date hereof, no default under the Declaration exists thereunder beyond any
applicable notice and cure period; and (iv) the Declaration is, and shall
remain, superior in lien to all mortgages and related liens affecting the Center
and all other land which is encumbered by the Declaration. Tenant shall comply
with the terms and conditions of the Declaration to the extent same affects the
Premises (it being agreed that Tenant shall not be obligated to expend any sums
in connection with such compliance).
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(c) Landlord shall, during the term: (i) perform and observe all of the
terms, covenants, provisions and conditions of the Declaration on Landlord's
part to be performed and observed; (ii) defend, indemnify and hold harmless
Tenant from and against and all claims, demands, causes of action, suits,
damages, liabilities and expenses of any nature arising out of or in connection
with the enforcement of, or a claimed breach by, Landlord of any covenant, term,
condition or provision of the Declaration; and (iii) diligently enforce, at its
sole expense, the covenants, agreements and obligations of the Declaration.
Tenant shall, during the term, defend, indemnify and hold harmless Landlord from
and against and all claims, demands, causes of action, suits, damages,
liabilities and expenses of any nature arising out of or in connection with the
enforcement of, or a claimed breach by, Tenant of any covenant, term, condition
or provision of the Declaration.
(d) Whenever, pursuant to the Declaration, the consent or approval of
Landlord shall be required by or requested, and such consent or approval could
diminish the rights or increase the obligations of Tenant thereunder or under
this Lease, or could adversely affect Tenant's use or occupancy of the Premises,
or the conduct of Tenant's business therein, such consent or approval shall not
be granted without the prior written consent of Tenant, which consent may be
withheld in its sole and absolute discretion.
(e) Landlord shall not amend, or modify the Declaration if such amendment
or modification could diminish the rights or increase the obligations of Tenant
thereunder of under this Lease, or could adversely affect Tenant's use or
occupancy of the Premises or the conduct of Tenant's business therein, nor shall
Landlord terminate the Declaration.
(f) Landlord shall obtain any third-party approvals required under Article
VIII of the Declaration for the performance of Landlord's Work (including,
without limitation, Tenant's elevations and signage, as shown on Exhibit "F"
hereto), Tenant's Work and the operation of Tenant's business in the Premises.
(g) Landlord further represents, warrants and/or covenants:
1. That it has the right to enter into this Lease and that the
person(s) signing this Lease on its behalf has authority to enter into
this Lease and to bind Landlord to the terms, covenants and conditions
contained herein.
2. That it has good and marketable fee simple title to the Premises
and the Center is free and clear of all easements, restrictions, liens
and encumbrances except as described in Section 6(a) above.
3. That the Premises, including without limitation, the roof and HVAC
system, are or as of the Commencement Date shall be, in good condition
and repair.
4. That the Premises is, or as of the Commencement Date shall be,
properly zoned for use by the Tenant as a retail footwear location and
there are no restrictive covenants or other title encumbrances which
restrict in any way the use of the Premises as a retail footwear
location.
5. That Landlord has, or as of the Commencement Date shall have,
obtained all necessary approvals and permits from appropriate
governmental authorities for the development of the Center in
accordance with the Site Plan and for the construction and occupancy
of the Premises by Tenant as a retail footwear location.
6. That Landlord has not entered into, and shall not hereafter prior
to the expiration or termination of this Lease enter into, any leases,
agreements or restrictive covenants that would prohibit or interfere
with the use of the Premises by the Tenant as a retail footwear
location.
7. In the event the legal description of the Center described on
Exhibit "B" hereto indicates that the Center is composed of more than
one (1) parcel or lot, there exists no strips or gores between such
parcels or lots which are not owned by Landlord.
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8. No third-party consents or approvals are required in order for
Landlord to enter into this Lease, or for the performance of
Landlord's Work.
9. The Center now has, and on the Commencement Date shall have,
access to and from Richmond Road and Harvard Road, as shown on the
Site Plan, for the passage of vehicular traffic.
10. As of the date of this Lease, there are no sign ordinances,
restrictive covenants, uniform sign plans or other signage
restrictions which would prevent the Premises from having the signage
(including, without limitation, the square foot area and size of
letters) as depicted on Exhibit "F" hereof.
SECTION 7. RIGHT TO REMODEL
(a) Tenant may, at Tenant's expense, make repairs and alterations to the
interior non-structural portions of the Premises and remodel the interior of the
Premises, excepting structural and exterior changes, in such manner and to such
extent as may from time to time be deemed necessary by Tenant for adapting to
the Premises to the requirements and uses of Tenant and for the installation of
its fixtures, appliances and equipment. Any structural or exterior alteration
may only be made by Tenant with the prior written approval of Landlord, which
approval may be granted or withheld in Landlord's sole discretion. All plans for
any structural alterations shall be submitted to Landlord for endorsement of its
approval prior to commencement of work. Upon Landlord's request, Tenant shall be
obligated, if it remodels and/or alters the Premises, to restore the Premises
upon vacating the same. Tenant will indemnify and save harmless the Landlord
from and against all mechanics liens or claims by reason of repairs, alterations
or improvements which may be made by Tenant to the Premises. Inasmuch as any
such alterations, additions or other work in or to the Premises may constitute
or create a hazard, inconvenience or annoyance to the public and other tenants
in the Center, Tenant shall, if so directed in writing by Landlord, erect
barricades, temporarily close the Premises, or affected portion thereof, to the
public or take whatever measures are necessary to protect the building
containing the Premises, the public and the other tenants of the Center for the
duration of such alterations, additions or other work. If Landlord determines,
in its sole judgment, that Tenant has failed to take any of such necessary
protective measures, and Tenant fails to cure same within ten (10) days after
notice thereof, Landlord may do so and Tenant shall reimburse Landlord for the
cost thereof within ten (10) days after Landlord bills Tenant therefor.
(b) All such work, including Tenant's Work pursuant to Exhibit "D" shall be
performed lien free by Tenant. In the event a mechanic's lien is filed against
the premises or the Center, Tenant shall discharge or bond off same within ten
(10) days from the filing thereof. If Tenant fails to discharge said lien,
Landlord may bond off or pay same without inquiring into the validity or merits
of such lien, and all sums so advanced shall be paid on demand by Tenant as
additional rent.
SECTION 8. UTILITIES
(a) Prior to the Commencement Date, Landlord shall provide, at Landlord's
expense, by separate meter, electric, water, sewer, and other utilities to the
Premises sufficient to meet Tenant's requirements. Landlord shall further
provide, or cause to be provided, all such utility services to the Premises
during the term of this Lease. Tenant agrees to be responsible and pay for all
public utility services rendered or furnished to the Premises during the term
hereof, including, but not limited to, heat, water, gas, electric, steam,
telephone service and sewer services, together with all taxes, levies or other
charges on such utility services when the same become due and payable. Tenant
shall be responsible for all utility services and costs inside the premises.
Landlord shall not be liable for the quality or quantity of or interference
involving such utilities unless due directly to Landlord's negligence.
(b) During the term hereof, whether the Premises are occupied or
unoccupied, Tenant agrees to maintain heat sufficient to heat the Premises so as
to avert any damage to the Premises on account of cold weather.
(c) Tenant agrees to be responsible for its rubbish removal from the
Premises. Tenant shall be permitted to maintain and operate, at no extra charge:
(i) a trash compactor in the
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portion of the Common Areas designated on Site Plan as "Trash Compactor Pad";
and (ii) a trash container(s) in the portion(s) of the Common Areas designated
on Site Plan as "Trash Container Pad". Tenant, at its sole cost and expense,
shall keep the trash compactor and containers neat and clean and repair any
damage caused by use and storage of such compactor and containers.
SECTION 9. GLASS
The Tenant shall maintain the glass part of the Premises, promptly
replacing any breakage and fully saving the Landlord harmless from any loss,
cost or damage resulting from such breakage or the replacement thereof.
SECTION 10. PERSONAL PROPERTY
The Tenant further agrees that all personal property of every kind or
description that may at any time be in or on the Premises shall be at the
Tenant's sole risk, or at the risk of those claiming under the Tenant, and that
the Landlord shall not be liable for any damage to said property or loss
suffered by the business or occupation of the Tenant caused in any manner
whatsoever.
SECTION 11. RIGHT TO MORTGAGE
(a) Landlord reserves the right to subject and subordinate this Lease at
all times to the lien of any deed of trust, mortgage or mortgages now or
hereafter placed upon Landlord's interest in the Premises; provided, however,
that no default by Landlord, under any deed of trust, mortgage or mortgages,
shall affect Tenant's rights under this Lease, so long as Tenant performs the
obligations imposed upon it hereunder and is not in default hereunder, and
Tenant attorns to the holder of such deed of trust or mortgage, its assignee or
the purchaser at any foreclosure sale. Any such subordination shall be
contingent upon Tenant receiving a commercially reasonable subordination,
non-disturbance and attornment agreement ("SNDA"). It is a condition, however,
to the subordination and lien provisions herein provided, that Landlord shall
procure from any such mortgagee an agreement in writing, which shall be
delivered to Tenant or contained in an SNDA, providing in substance that so long
as Tenant shall faithfully discharge the obligations on its part to be kept and
performed under the terms of this Lease and is not in default under the terms
hereof, its tenancy will not be disturbed nor this Lease affected by any default
under such mortgage. The parties acknowledge that the SNDA attached hereto as
Exhibit "I" is commercially reasonable. Landlord represents and warrants that,
as of the date of this Lease and the Commencement Date, there are no mortgages,
ground leases or other encumbrances that could dispossess Tenant's leasehold
interest hereunder (collectively, "Mortgages") on Landlord's fee title to the
Center. Landlord agrees that Tenant's obligations under this Lease shall be
contingent upon Tenant entering into an SNDA with the holder of such Mortgage on
or before the Commencement Date.
(b) Wherever notice is required to be given to Landlord pursuant to the
terms of this Lease, Tenant will likewise give such notice to any mortgagee of
Landlord's interest in the Premises upon notice of such mortgagee's name and
address from Landlord. Furthermore, such mortgagee shall have the same rights to
cure any default on the part of Landlord that Landlord would have had.
SECTION 12. SUBLEASE OR ASSIGNMENT
(a) Tenant may assign Tenant's interest in this Lease or sublet all or any
portion of the Premises to a nationally or regionally recognized retailer
without Landlord's consent. Any other assignment or subletting not specifically
provided for in this Section 12 shall be subject to Landlord's prior written
consent, which consent shall not be unreasonably withheld. Landlord's review of
the proposed assignee or subtenant shall be limited to business reputation,
business experience, a retail use compatible with then existing tenant mix of
the Center, and financial ability to perform its obligations under this Lease or
the proposed sublease, as the case may be. In any such event, Tenant shall
remain fully and primarily liable hereunder. Tenant's right to assign or sublet
shall be subject to any then existing exclusives or primary use exclusives for
tenants leasing more than 15,000 square feet of space in the Center.
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Tenant may, without the consent of Landlord, (i) grant licenses and/or
concessions within the Premises or (ii) assign or sublet all or any portion of
the Premises to (a) any parent, affiliate or subsidiary corporation of Tenant;
(b) a transferee or successor by merger, consolidation or acquisition of Tenant
or its parent or subsidiary; or (c) a transferee with a good business reputation
who is acquiring all or substantially all of the stores of Tenant in the State
of Ohio or the assets of Tenant, its parent or subsidiary. Any such assignee or
sublessee shall be bound by the terms of this Lease. Tenant shall deliver to
Landlord in the ordinary course of its business an instrument whereby the
assignee or entity succeeding to Tenant's interest hereunder agrees to be bound
by the terms of this Lease.
(b) Landlord may assign Landlord's interest in this Lease without the
consent of Tenant (a) to any entity to which Landlord transfers its fee interest
in the Premises provided such entity (i) agrees in writing to be bound by all
the terms of this Lease and (ii) such assignment is pursuant to a bona fide
arm's length transaction not designed to reduce Landlord's liability or to
otherwise exempt Landlord from any provision of this Lease or (b) subject to
Section 12, as security for any indebtedness undertaken by Landlord.
SECTION 13. COMMON AREAS
Landlord grants to Tenant and its customers, agents, employees, licensees,
invitees and subtenants, a non-exclusive easement in common with the other
tenants of the Center for the use of all Common Areas. Landlord hereby covenants
and agrees that Landlord shall not grant any party other than tenants of the
Center and their customers, agents, employees, licensees, invitees and
subtenants a right to utilize the parking areas in the Center, and Landlord
shall use commercially reasonable efforts to restrict the use of the parking
areas to such parties. "Common Areas" means all areas and facilities in the
Center provided and so designated by Landlord and made available by Landlord in
the exercise of good business judgment for the common use and benefit of tenants
of the Center and their customers, employees and invitees. Common Areas shall
include (to the extent the same are constructed), but not be limited to, the
parking areas, sidewalks, landscaped areas, corridors, stairways, boundary walls
and fences, incinerators, truckways, service roads, and service areas not
reserved for the exclusive use of Tenant or other tenants.
SECTION 14. OPERATION OF COMMON AREAS
(a) From and after the Commencement Date, Landlord, at its cost and
expense, shall operate the Center and maintain the Common Areas and the Center
in a clean and safe condition and repair so that Tenant and its customers,
guests, invitees, licensees, officers and employees can use and enjoy the same.
The obligations of Landlord pursuant hereto shall include, without limitation,
the maintenance of the Center and any pylon structure(s) (excluding therefrom
Tenant's advertising panels), regular cleaning of the Common Areas, removal of
trash and debris from the Common Areas, repairing the asphalt and concrete
portions of the Common Areas (including potholes, curbs and sidewalks),
repairing common utility lines and facilities, repairing storm drains, repairing
parking lot lights, maintaining the landscaped portion of the Common Areas
(including regular grass cutting), maintaining floodlights and other necessary
means of illumination sufficient to illuminate the Common Areas during twilight
and evening hours that Tenant's store is open for business and in operation,
prompt removal of snow and ice on every occasion where safety of the Common
Areas or access to the Premises is impeded, and periodic restriping of the
parking area. Landlord shall at all times have exclusive control of the Common
Areas and may at any time and from time to time: (i) promulgate, modify and
amend reasonable rules and regulations for the use of the Common Areas, which
rules and regulations shall be binding upon Tenant upon delivery of a copy
thereof to Tenant; (ii) temporarily close any part of the Common Areas,
including but not limited to closing the streets, sidewalks, road or other
facilities to the extent necessary to prevent a dedication thereof or the
accrual of rights of any person or of the public therein; (iii) exclude and
restrain anyone from the use or occupancy of the Common Areas or any part
thereof except bona fide customers and suppliers of the tenants of the Center
who use said areas in accordance with the rules and regulations established by
Landlord; and (iv) engage others to operate and maintain all or any part of the
Common Areas, on such terms and conditions as Landlord shall, in its sole
judgment, deem reasonable and proper; and (v) make such changes in the Common
Areas as in its opinion are in the best interest of the Center, including but
not limited to changing the location of walkways, service areas, driveways,
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entrances, existing automobile parking spaces and other facilities, changing the
direction and flow of traffic and establishing prohibited areas; provided,
however, that any such change shall be subject to the terms and conditions of
Section 1(c) of this Lease.
(b) Tenant shall keep all Common Areas free of obstructions created or
permitted by Tenant. Tenant shall permit the use of the Common Areas only for
normal parking and ingress and egress by its customers and suppliers to and from
the Premises. If in Landlord's opinion unauthorized persons are using any of the
Common Areas by reason of Tenant's occupancy of the Premises, Landlord shall
have the right at any time to remove any such unauthorized persons from said
areas or to restrain unauthorized persons from said areas. Landlord, Tenant, and
others constructing improvements or making repairs or alterations in the Center
shall have the right to make reasonable use of portions of the Common Areas.
(c) Throughout the term, Landlord shall keep the Common Areas fully lighted
and open to the customers of the Center seven (7) days a week from dusk until
11:00 p.m. Monday through Saturday and until 7:00 p.m. on Sunday ("Normal
Hours"). Upon request of Tenant, Landlord shall keep the Common Areas lighted
for as long as after Normal Hours as Tenant shall request, provided Tenant shall
pay for a share of the reasonable cost of said requested lighting, which share
shall be equal to the product of (i) such costs, and (ii) a fraction, the
numerator of which shall be the number of square feet of leasable space within
the Premises and the denominator of which shall be the aggregate number of
square feet of leasable space of all premises within the Center (including the
Premises) open later than Normal Hours (excluding, however, those tenants and
occupants who separately control and pay for their own Common Area lighting). In
addition to the foregoing, Landlord shall provide for low level security
lighting from one (1) hour after the close of business in the Premises until
xxxx.
SECTION 15. COMMON AREA MAINTENANCE, TENANT'S SHARE
(a) Tenant shall initially pay to Landlord as additional rental,
simultaneously with the payment of Base Rent called for under Section 4(a), the
estimated monthly amount of Tenant's Proportionate Share of the "Maintenance
Costs" (as defined in Section 15(c) below) for the operation and maintenance of
the Common Areas as set forth in Section 4(c), One and 10/100 Dollars ($1.10)
per square foot, payable in equal monthly installments of One Thousand Eight
Hundred Thirty-Three and 33/100 Dollars ($1,833.33) as the estimated monthly
amount of Tenant's Proportionate Share of the "Maintenance Costs" (as defined in
Section 15(b) below) for the operation and maintenance of the common areas.
(b) The Maintenance Costs for the common areas shall be computed on an
accrual basis, under generally accepted accounting principles, and shall include
all costs of operating, maintaining, repairing and replacing the common areas,
including by way of example but not limitation: (i) cost of labor (including
worker's compensation insurance, employee benefits and payroll taxes); (ii)
materials, and supplies used or consumed in the maintenance or operation of the
common area; (iii) the cost of operating and repairing of the lighting; (iv)
cleaning, painting, removing of rubbish or debris, snow and ice, private
security services, and inspecting the common areas; (v) the cost of repairing
and/or replacing paving, curbs, walkways, markings, directional or other signs;
landscaping, and drainage and lighting facilities; (vi) rental paid for
maintenance of machinery and equipment; and (vii) a reasonable allowance to
Landlord for Landlord's supervision, which allowance shall not in an accounting
year exceed ten percent (10%) of the total of all Maintenance Costs (excluding
insurance costs) for such accounting year (all of the foregoing are collectively
referred to herein as "Maintenance Costs"). Notwithstanding the foregoing, the
following shall be excluded, deducted or credited from Maintenance Costs when
computing Tenant's Proportionate Share of same: (a) Net recoveries received by
Landlord from tenants as a result of any act, omission, default or negligence or
as the result of breaches by tenants of the provisions of their leases and/or
other amounts received by Landlord from third parties, which recoveries and/or
amounts reimburse Landlord for or reduce Maintenance Costs; (b) Gross revenues
from charges, if any, made for the use of the parking facilities and other
Common Areas or facilities of the Center (including, without limitation, the
sale or rental of advertising space); (c) The cost of the land underlying and
the construction of the Center, whether initially or in connection with any
replacement or expansion thereof and whether mandated by law or otherwise,
including, without limitation, costs of correcting (I) defective
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conditions in the Center resulting from defects in or inadequacy of the initial
design or construction of the same, or (II) code violations, including the
payment of fines or citations in connection therewith; (d) The depreciation or
amortization of the Center or any part thereof or any equipment or other
property used in connection therewith; (e) the initial cost of the installation
of the parking areas or facilities or the amortization or depreciation of such
initial cost; (f) The cost of providing or performing improvements, work or
repairs to or within (I) any portion of the premises of any other tenants or
occupants in the Center, (II) any other building which is not part of the Common
Areas or (III) any portion of the Center the use of which is not available to
Tenant; (g) Any reserves for future expenditures or liabilities which would be
incurred subsequent to the then current accounting year; (h) Any bad debt loss,
rent loss or reserves for bad debt or rent loss; (i) Legal fees, audit fees,
leasing commissions, advertising expenses and other costs incurred in connection
with (I) the original development or original leasing of the Center, (II) the
future re-leasing of the Center, (III) any advertising or promotion of the
Center or any part thereof, and (IV) disputes with other tenants or third
parties; (j) Costs of repairing or restoring any portion of the Center damaged
or destroyed by any casualty or peril whether insured, uninsured or uninsurable;
(k) Costs in connection with the cleanup or removal of hazardous materials; (l)
The cost of compliance with the Americans with Disabilities Act of 1990, as
amended, and all regulations promulgated pursuant thereto; (m) Net recoveries
from insurance policies taken out by Landlord to the extent that the proceeds
reimburse Landlord for expenses which have previously been included or which
would otherwise be included in Maintenance Costs; (n) Costs associated with
repairs or improvements the need for which arose prior to the date of this
Lease; (o) Costs of a capital nature, including all capital improvements,
alterations, repairs and/or replacements (for purposes of this Lease, "costs of
a capital nature" shall mean the cost of any item or service the useful life of
which exceeds 36 months); (p) Costs relating to the negligence of Landlord or
its contractors, agents or employees or the payment of any claims or damages
relating to the same; (r) Any insurance costs.
(c) Landlord shall maintain accurate and detailed records of all
Maintenance Costs for the common areas in accordance with generally accepted
accounting principles. For purposes of this Lease, "Tenant's Proportionate
Share" shall be the product of the applicable cost or expense multiplied by a
fraction, the numerator of which shall be the gross leasable area (expressed in
square feet) of the Premises and the denominator of which shall be the gross
leasable area (expressed in square feet) of all leasable space in the Center.
Tenant's Proportionate Share of that portion of the Center owned by Landlord is
estimated to be 8.69%, during the first Lease Year.
(d) The actual amount of Tenant's Proportionate Share of all Maintenance
Costs shall be computed by Landlord within one hundred eighty (180) days after
the end of each accounting year (which Landlord may change from time to time).
At this time Landlord shall furnish to Tenant a statement showing in reasonable
detail the actual Maintenance Costs incurred during such accounting year and
Tenant's Proportionate Share thereof (prorated for any partial Lease year, with
appropriate adjustments to reflect any change in the floor area of the premises
or the gross leasable area of a building occurring during such accounting year).
Any excess payments from Tenant shall be applied to the next installments of the
Maintenance Costs hereunder, or refunded by Landlord. Any underpayments by
Tenant shall be paid to Landlord within thirty (30) days after receipt of such
reconciliation statement. Tenant's estimated monthly Maintenance Cost hereunder
may be adjusted by written notice from Landlord. Notwithstanding anything
contained in this Section 15 to the contrary, Landlord and Tenant agree that the
actual amount of Tenant's Proportionate Share of Maintenance Costs, excluding
costs for snow and ice removal, shall not increase by more than five percent
(5%) in any lease year over the previous Lease Year, and that Tenant's
Proportionate Share of Maintenance Costs for the first lease year, excluding
costs for snow and ice removal and common area utilities, shall not exceed One
and 25/100 Dollars ($1.25) per square foot.
(e) If Tenant, for any reason in the exercise of good business judgment,
questions or disputes any statement of Maintenance Costs prepared by Landlord,
then Tenant, at its own expense, may employ such accountants as Tenant may
select to review Landlord's books and records solely with respect to Maintenance
Costs during the prior two Lease years and to determine the amount of
Maintenance Costs for the period or periods covered by such statements. If the
report of the accountants employed by Tenant shall show any overcharge paid by
Tenant, then Tenant shall receive a credit from Landlord for such difference.
Any
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underpayment shall be paid by Tenant. Tenant agrees that no contingency fee
auditors shall be employed by Tenant for the purpose of conducting any such
audit. In the event that Landlord questions or disputes the correctness of such
report, the accountants employed by Tenant and the accountants employed by
Landlord shall endeavor to reconcile the question(s) or dispute(s) within thirty
(30) days after the notice from Tenant questioning or disputing the report of
Landlord's accountants. In the event that it is finally determined by the
parties that Landlord has overstated Maintenance Costs for any Lease year by
three percent (3%) or more, Landlord shall pay the reasonable cost of the audit.
Furthermore, if Landlord's Maintenance Costs cannot be verified due to the
insufficiency or inadequacy of Landlord's records, then Landlord shall pay the
cost of the audit.
SECTION 16. EMINENT DOMAIN
(a) In the event the entire premises or any part thereof shall be taken or
condemned either permanently or temporarily for any public or quasi-public use
or purpose by any competent authority in appropriation proceedings or by any
right of eminent domain, the entire compensation or award therefore, including
leasehold, reversion and fee, shall belong to the Landlord and Tenant hereby
assigns to Landlord all of Tenant's right, title and interest in and to such
award.
(b) In the event that only a portion of the Premises, not exceeding twenty
percent (20%) of same, shall be so taken or condemned, and the portion of the
Premises not taken can be repaired within ninety (90) days from the date of
which possession is taken for the public use so as to be commercially fit for
the operation of Tenant's business, the Landlord at its own expense shall so
repair the portion of the Premises not taken and there shall be an equitable
abatement of rent for the remainder of the term and/or extended terms. The
entire award paid on account thereof shall be paid to the Landlord. If the
portion of the Premises not taken cannot be repaired within ninety (90) days
from the date of which possession is taken so as to be commercially fit for the
operation of Tenant's business, then this Lease shall terminate and become null
and void from the time possession of the portion taken is required for public
use, and from that date on the parties hereto shall be released from all further
obligations hereunder except as herein stated and Tenant shall have no claim for
any compensation on account of its leasehold interest. No other taking,
appropriation or condemnation shall cause this Lease to be terminated. Any such
appropriation or condemnation proceedings shall not operate as or be deemed an
eviction of Tenant or a breach of Landlord's covenant of quiet enjoyment and
Tenant shall have no claim for any compensation on account of its leasehold
interest.
(c) In the event that more than twenty percent (20%) of the Premises shall
at any time be taken by public or quasi-public use or condemned under eminent
domain, then at the option of the Landlord or Tenant upon the giving of thirty
(30) days written notice (after such taking or condemnation), this Lease shall
terminate and expire as of the date of such taking and any prepaid rental shall
be prorated as of the effective date of such termination.
SECTION 17. TENANT'S TAXES
Tenant further covenants and agrees to pay promptly when due all taxes
assessed against Tenant's fixtures, furnishings, equipment and stock-in trade
placed in or on the Premises during the term of this Lease.
SECTION 18. RISK OF GOODS
All personal property, goods, machinery, and merchandise in said Premises
shall be at Tenant's risk if damaged by water, fire, explosion, wind or accident
of any kind, and Landlord shall have no responsibility therefore or liability
for any of the foregoing and Tenant hereby releases Landlord from such
liability.
SECTION 19. USE AND OCCUPANCY
(a) Tenant agrees to initially open and operate a DSW for the retail sales
of shoes and other footwear in the Premises, fully staffed and stocked and
equivalent to other DSW stores operated by Tenant in the State of Ohio. The
Premises during the term of this Lease shall be
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occupied for the operating and conducting therein of a retail shoe store or any
other lawful retail purpose. Any use other than a retail shoe store shall be
consistent with the then existing character of the Center, and shall not violate
those exclusives and prohibited uses set forth on Exhibit "E" attached hereto
and made a part hereof, which are the exclusives and prohibited uses in effect
for the Center as of the date hereof, for so long as and to the extent said
exclusives and prohibited uses are still in full force and effect, as well as
exclusives and prohibited uses hereafter granted for (i) tenants leasing more
than 15,000 square feet of space elsewhere within the Center and (ii) Ulta(3)
Cosmetics, for so long as and to the extent said exclusives are still in full
force and effect.
(b) For so long as Tenant is continuously and regularly operating its
business in the Premises, Landlord will not lease any space within the Center or
permit any space within the Center (to the extent Landlord has control) to be
used by any person, persons, partnership or entity who devotes five percent (5%)
or more of its selling area to the sale of footwear (the "Exclusive Use"). The
foregoing limitation shall not apply to typical shoe departments found in
department stores, junior department stores, general merchandise and discount
stores, and clothing retailers, such as Filene's Basement, Marshalls, TJ Maxx
and similar type stores so long as such shoe departments are consistent with the
typical shoe departments of each such retailer. Any portion of the Center which
is sold by Landlord during the term shall contain a deed restriction
incorporating the foregoing Exclusive Use.
Landlord acknowledges that in the event of a breach or an attempted or
prospective breach of this Section 19(b), Tenant's remedies at law would be
inadequate. Therefore, in any such event, if such breach is not cured within
thirty (30) days after written notice from Tenant to Landlord, Tenant shall be
entitled, at its option and without limitation of any other remedy permitted by
law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and
percentage rent due under this Lease two percent (2%) of Tenant's gross sales
calculated according to Tenant's standard procedures in accordance with
generally accepted accounting principles, (ii) to cancel this Lease on one
hundred eighty (180) days written notice to Landlord, and/or (iii) to full and
adequate relief by temporary or permanent injunction. Notwithstanding the
foregoing, the remedy of lease cancellation shall not be applicable if the
violation of this Section 19(b) is due to the breach of another tenant's lease
and Landlord is, in Tenant's good faith judgment, diligently pursuing
appropriate legal proceedings to halt the violation and such violation is so
halted within sixty (60) days of Landlord's receipt of Tenant's notice.
(c) Tenant shall at all times conduct its operations on the Premises in a
lawful manner and shall, at Tenant's expense, comply with all laws, rules,
orders, ordinances, directions, regulations, and requirements of all
governmental authorities, now in force or which may hereafter be in force, which
shall impose any duty upon Landlord or Tenant with respect to the business of
Tenant and the use, occupancy or alteration of the Premises. Tenant shall comply
with all requirements of the Americans with Disabilities Act, and shall be
solely responsible for all alterations within the Premises in connection
therewith. Tenant covenants and agrees that the Premises shall not be abandoned
or left vacant and that only minor portions of the Premises shall be used for
office or storage space in connection with Tenant's business conducted in the
Premises.
Without being in default of this Lease, Tenant shall have the right to
cease operating (go dark) at any time and for whatever reason after the first
(1st) lease year. Notwithstanding the foregoing, Tenant's right to vacate (go
dark), shall not release or excuse the Tenant from any obligations or
liabilities, including the payment of minimum rent and additional rent and other
charges, under this Lease without the express written consent of Landlord. In
the event Tenant fails to (i) open and operate within ninety (90) days after
delivery of the Premises or (ii) operate for one hundred twenty (120) or more
consecutive days, Landlord shall have the right, effective upon thirty (30) days
prior written notice to Tenant, to terminate the Lease as Landlord's sole
remedy, provided that if Tenant recommences operating fully stocked in
substantially all of the premises within such thirty (30) days, Landlord's
termination shall be null and void. In the event Tenant fails to open and
operate as provided above or shall cease operating as provided above, Landlord's
sole remedy on account thereof shall be limited to the right to elect to
recapture the premises and terminate the Lease, whereupon there shall be no
further liability of the parties hereunder. Such termination shall be effective
upon written notice to Tenant any time prior to Tenant reopening for business in
the Premises. Provided, however, in the event Landlord has not
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so elected to recapture, Tenant shall have right to notify Landlord of Tenant's
intention to reopen for business in the Premises within sixty (60) days,
followed by Tenant's actually reopening for business fully stocked in
substantially all of the Premises within such sixty (60) day period, which
notice and actual reopening shall toll Landlord's right to recapture.
(d) Landlord and Tenant agree that no space in the Center, including the
Premises, shall be used as a bowling alley, deep discount retailer, theater
showing either film, television or the like or live entertainment, health club,
games/amusement room, indoor playground, adult bookstore, flea market, bingo
parlor, bar, tavern or cocktail lounge (except if incidental to a restaurant as
permitted below), restaurant (except as permitted below), adult book or adult
video store (defined for the purposes hereof as a store devoting ten percent
(10%) or more of its floor space to offering books and/or video materials for
sale or for rent which are directed to or restricted to adult customers due to
sexually explicit subject matter or for any other reason making it inappropriate
for general use), adult theater or "strip-tease" establishment, automotive
maintenance or automotive repair facility, warehouse, car wash, pawn shop, check
cashing service, establishment selling second hand goods, flea market,
entertainment or recreational facility (as defined below), training or
educational facility (as defined below); the renting, leasing, selling or
displaying of any boat, motor vehicle or trailer; industrial or manufacturing
purposes; a carnival, circus or amusement park; a gas station, facility for the
sale of paraphernalia for use with illicit drugs, funeral home, blood bank or
mortuary, gambling establishment, banquet hall, auditorium or other place of
public assembly, second-hand or surplus store, gun range; the sale of fireworks;
a veterinary hospital or animal raising facility; the storage of goods not
intended to be sold from the Center; a video rental store (except as permitted
below), karate center, central laundry or dry cleaning plant, supermarket or any
facility which is illegal or dangerous, constitutes a nuisance, emits offensive
odors, fumes, dust or vapors or loud noise or sounds or is inconsistent with
community oriented shopping centers. For the purposes of this Section 19(d), the
phrase "entertainment or recreational facility" shall include, without
limitation, a movie or live theater or cinema, bowling alley, skating rink, gym,
health spa or studio, dance hall or night club, billiard or pool hall, massage
parlor, health club, game parlor or video arcade (which shall be defined as any
store containing more than five (5) electronic games) or any other facility
operated solely for entertainment purposes (such as a "laser tag" or "virtual
reality" theme operation), except for a "Curves" or similar operation provided
the same is not located immediately adjacent to the Premises. For the purposes
of this Section 19(d), the phrase "training or educational facility" shall
include, without limitation, a beauty school, nail salon, xxxxxx college,
reading room, place of instruction or any other operation catering primarily to
students or trainees as opposed to customers. Notwithstanding the foregoing,
Landlord may lease any premises in the Center for use as (i) a restaurant
located no closer than one hundred feet (100') from the exterior walls of the
Premises, (ii) a specialty grocery store or specialty supermarket (such as a
Wild Oats) located no closer than one hundred feet (100') from the exterior
walls of the Premises, and (iii) a national video rental store which has a
prohibition against the rental or sale of adult videos and which is located no
closer than one hundred feet (100') from the exterior walls of the Premises. The
total floor area of all restaurants and medical, dental, professional and
business offices located within the Center shall not exceed fifteen percent
(15%) of the gross leasable area of the Center. Any portion of the Center which
is sold by Landlord during the term shall contain a deed restriction
incorporating the foregoing restrictions.
Landlord acknowledges that in the event of a breach or an attempted or
prospective breach of this Section 19(d), Tenant's remedies at law would be
inadequate. Therefore, in any such event, if such breach is not cured within
sixty (60) days after written notice from Tenant to Landlord, Tenant shall be
entitled, at its option and without limitation of any other remedy permitted by
law or equity or by this Lease, (i) to elect to pay in lieu of Base Rent and
percentage rent due under this Lease two percent (2%) of Tenant's gross sales
calculated according to Tenant's standard procedures in accordance with
generally accepted accounting principles, and/or (ii) to full and adequate
relief by temporary or permanent injunction. Notwithstanding the foregoing, the
remedy of lease cancellation shall not be applicable if the violation of this
Section 19(d) is due to the breach of another tenant's lease and Landlord is, in
Tenant's good faith judgment, diligently pursuing appropriate legal proceedings
to halt the violation and such violation is so halted within one hundred twenty
(120) days of Landlord's receipt of Tenant's notice.
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(e) Landlord and Tenant agree that (a) no auction, fire or
going-out-of-business sales shall be conducted in the Center except a
going-out-of-business sale conducted during the last thirty (30) days of an
existing retail operation, (b) no exterior identification signs attached to any
building in the Center shall be (i) flashing, moving or audible signs or (ii)
signs employing exposed neon tubes, exposed ballast boxes or exposed
transformers, and (c) no sidewalk sales shall be allowed in the Center.
SECTION 20. NUISANCES
Tenant shall not perform any acts or carry on any practice which may injure
the Premises or be a nuisance or menace to other tenants in the Center.
SECTION 21. WASTE AND REFUSE REMOVAL
Tenant covenants that it will use, maintain and occupy said Premises in a
careful, safe, lawful and proper manner and will not commit waste therein.
Landlord or its agent shall have access at all reasonable times to the Premises
for purposes of inspecting and examining the condition and maintenance of the
Premises. Tenant agrees to remove all refuse from the Premises in a timely,
clean and sanitary manner. Tenant shall provide a refuse collection container at
the rear of the Premises to accommodate Tenant's refuse and Tenant shall
routinely clean up around trash containers. Tenant shall contract with a
licensed and insured refuse collection contractor to timely remove refuse
therefrom and the location of the container shall be approved by Landlord.
SECTION 22. DAMAGE AND DESTRUCTION OF PREMISES
(a) Landlord shall at all times during the term of this Lease carry
property insurance on the building containing the Premises, including the
"Structural Portions" (defined in Section 24(a) below) and common utility lines
up to the point they serve individual tenant's premises. Landlord shall be under
no obligation to maintain insurance on any improvements installed by or for the
benefit of Tenant's use of the premises or otherwise owned by Tenant. Landlord
may elect to self-insure its obligations hereunder and/or use whatever
deductibles as Landlord deems appropriate, in its sole discretion.
(b) If the Premises shall be damaged, destroyed, or rendered untenantable,
in whole or in part, by or as the result or consequence of fire or other
casualty during the term hereof, Landlord shall repair and restore the same to a
good tenantable condition with reasonable dispatch. During such period of
repair, the rent herein provided for in this Lease shall xxxxx (i) entirely in
case all of the Premises are untenantable; and (ii) proportionately if only a
portion of the Premises is untenantable and Tenant is able to economically
conduct its business from the undamaged portion of the Premises. The abatement
shall be based upon a fraction, the numerator of which shall be the square
footage of the damaged and unusable area of the Premises and the denominator
shall be the total square footage of the Premises. Said abatement shall cease at
such time as the Premises shall be restored to a tenantable condition.
(c) In the event the Premises, because of such damage or destruction, are
not repaired and restored to a tenantable condition with reasonable dispatch
within one hundred fifty (150) days from the date of receipt of insurance
proceeds for such damage or destruction, Tenant or Landlord may, at their
option, terminate this Lease within sixty (60) days following such one hundred
fifty (150) day period but prior to the repair and restoration of same by giving
prior written notice to the other party and thereupon Landlord and Tenant shall
be released from all future liability and obligations under this Lease.
(d) If one-third (1/3) or more of the ground floor area of the Premises are
damaged or destroyed during the last two (2) years of the original or any
extended term of this Lease, Landlord shall have the right to terminate this
Lease by written notice to Tenant within sixty (60) days following such damage
or destruction, unless Tenant shall, within thirty (30) days following receipt
of such notice, offer to extend the term of this Lease for an additional period
of five (5) years from the date such damage or destruction is repaired and
restored. If Tenant makes said offer to extend, Landlord and Tenant shall
determine the terms and conditions of said extension within thirty (30) days
thereafter or Tenant's offer shall not be deemed to prevent Landlord from
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canceling this Lease. If such terms and conditions have been mutually agreed to
by the parties, then Landlord shall accept Tenant's offer and shall repair and
restore the Premises with reasonable dispatch thereafter.
(e) If Landlord is required or elects to repair and restore the Premises as
herein provided, Tenant shall repair or replace its stock in trade, trade
fixtures, furniture, furnishings and equipment and other improvements including
floor coverings, and if Tenant has closed, Tenant shall promptly reopen for
business. Anything contained in this Section 22 to the contrary notwithstanding,
Landlord's restoration and repair obligations under Section 22 shall in no event
include restoration or repair of Tenant's Work or improvements.
SECTION 23. LANDLORD REPAIRS
(a) Landlord shall keep in good order, condition, and repair, maintain and
replace, as necessary, the following: (i) structural portions of the Premises;
(ii) downspouts; (iii) gutters; (iv) the roof of the Building of which the
Premises forms a part; and (v) any utility and other systems or lines serving
the Premises but located outside of the Premises, except (as to all items) for
damage caused by any negligent act or omission of Tenant or its customers,
employees, agents, invitees, licensees or contractors, which shall be repaired
or replaced as necessary, at the sole cost and expense of Tenant. "Structural
Portions" shall mean only the following: (vi) foundations; (vii) exterior walls
except for interior faces); (viii) concrete slabs; (ix) the beams and columns
bearing the main load of the roof; and (x) the floors (but not floor coverings).
(b) Notwithstanding the provisions of Section 23(a) above, Landlord shall
not be obligated to repair the following: (i) the exterior or interior of any
doors, windows, plate glass, or showcases surrounding the Premises or the store
front or (ii) damage to Tenant's improvements or personal property caused by any
casualty, burglary, break-in, vandalism, acts of terrorism, war or act of G-d.
Landlord shall, in any event, have ten (10) days after notice from Tenant
stating the need for repairs to complete same, or commence and proceed with due
diligence to complete same. Landlord shall be obligated to replace all HVAC
components as and when necessary so long as Tenant has fulfilled its obligations
under Section 24(a)(ii) below. Except as specifically set forth herein, Tenant
expressly hereby waives the provisions of any law permitting repairs by a tenant
at Landlord's expense.
(c) The provisions of this Section 23 shall not apply in the case of damage
or destruction by fire or other casualty or a taking under the power of eminent
domain in which events the obligations of Landlord shall be controlled by
Section 22 and Section 16 respectively.
(d) Landlord shall assign to Tenant all warranties covering all matters
required by the terms hereof to be repaired and maintained by Landlord.
(e) If Landlord fails to make any of the repairs required to be made under
this Lease within thirty (30) days after written notice from Tenant, Tenant, in
addition to any other rights it may have hereunder or at law or in equity, shall
have the right to make said repairs on behalf of Landlord and to xxxx Landlord
for the reasonable cost thereof. Landlord shall have thirty (30) days to
reimburse Tenant. In the event of an emergency or if any such repairs are
immediately necessary for the proper use and enjoyment of the Premises, no prior
thirty (30) days notice shall be required, Tenant, after diligent effort to
first notify Landlord, forthwith make said repairs on behalf of Landlord and
xxxx Landlord for the reasonable cost thereof. Tenant has not received
reimbursement for any repairs permitted to be made under this Section 23(e)
within such thirty (30) day period, Tenant shall have the right to deduct the
cost of repairs from Rent otherwise due Landlord.
SECTION 24. TENANT'S REPAIRS
(a) Tenant shall keep and maintain, at Tenant's expense, all and every
other part of the Premises in good order, condition and repair, including, by
way of example but not limitation: (i) all leasehold improvements; (ii) all HVAC
unit(s), equipment and systems (including all components thereof) serving the
Premises; (iii) interior plumbing and sewage facilities; (iv) all interior
lighting; (v) electric signs; (vi) all interior walls; (vii) floor coverings;
(viii) ceilings; (ix) appliances and equipment; (x) all doors, exterior
entrances, windows and
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window moldings; (xi) plate glass; (xii) signs and showcases surrounding and
within the Premises; (xiii) the store front; (xiv) sprinkler systems including
supervisory alarm service in accordance with National Fire Protection
Association standards and current local and state fire protection standards to
ensure property operation.
(b) Sprinkler systems, if any, located in Tenant's area shall be maintained
in accordance with National Fire Protection Association standards to ensure
proper operation. Sprinkler control valves (interior and exterior) located in
Tenant's area shall be monitored by supervisory alarm service. In the event
local or state codes do not require alarm systems, Tenant shall provide alarm
service on all sprinkler systems to detect water flow and tampering with
exterior and interior main control valves of the sprinkler system servicing
Tenant's premises. Moreover, it shall be Tenant's responsibility to contact
Xxxxx Xxxxx, Commercial Property Manager at 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000-0000 at (000) 000-0000, in the event the sprinkler system in the Premises
is ever shut off for any reason, and advise same of any damage occasioned or
caused by the actions of Tenant, its agents, invitees, or employees, and/or as a
result of Tenant's repair obligations hereunder. In the event fifty percent
(50%) or more of the total number of sprinkler heads require replacement at any
one time as part of ordinary maintenance, but excluding repairs or replacements
that arise from (x) repairs, installations alterations, or improvements made by
or for Tenant or anyone claiming under Tenant, or (y) the fault or misuse of
Tenant or anyone claiming under Tenant, such cost shall be fifty percent (50%)
borne by Landlord and fifty percent (50%) borne by Tenant. Tenant, at Tenant's
sole cost and expense, shall replace all sprinkler heads due to repairs,
installations, alterations, or improvements made by or for Tenant or anyone
claiming under Tenant, the fault or misuse of Tenant or anyone claiming under
Tenant, painting or environmental exposure from Tenant's operations. All other
costs of maintaining the sprinkler system in the Premises shall be paid by
Tenant.
(c) If Landlord deems any repair which Tenant is required to make hereunder
to be necessary, Landlord may demand that Tenant make such repair immediately.
If Tenant refuses or neglects to make such repair and to complete the same with
reasonable dispatch, Landlord may make such repair and Tenant shall, on demand,
immediately pay to Landlord the cost of said repair, together with annual
interest at the Interest Rate. Landlord shall not be liable to Tenant for any
loss or damage that may accrue to Tenant's stock or business by reason of such
work or its results.
(d) Neither Tenant nor any of its contractors are permitted access to or
permitted to perform alterations of any kind to the roof of the Premises.
(e) Tenant shall pay promptly when due the entire cost of work in the
Premises undertaken by Tenant under this Lease (including, but not limited to,
Tenant's Work and/or alterations permitted under Section 7 of this Lease) so
that the Premises and the Center shall at all times be free of liens for labor
and materials arising from such work; to procure all necessary permits before
undertaking any such work; to do all of such work in a good and workmanlike
manner, employing materials of good quality; to perform such work only with
contractors previously reasonably approved of in writing by Landlord; to comply
with all governmental requirements; and save Landlord and its agents, officers,
employees, contractors and invitees harmless and indemnified from all liability,
injury, loss, cost, damage and/or expense (including reasonable attorneys' fees
and expenses) in respect of any injury to, or death of, any person, and/or
damage to, or loss or destruction of, any property occasioned by or growing out
of any such work.
SECTION 25. COVENANT OF TITLE AND PEACEFUL POSSESSION
Subject to the provisions of Section 11 hereof, Landlord shall, on or
before the date on which Tenant is permitted to install its merchandise and
fixtures in the Premises, have good and marketable title to the Premises in fee
simple and the right to make this Lease for the term aforesaid. At such time,
Landlord shall put Tenant into complete and exclusive possession of the
Premises, and if Tenant shall pay the rental and perform all the covenants and
provisions of this Lease to be performed by the Tenant, Tenant shall, during the
term hereby demised, freely, peaceably, and quietly enjoy and occupy the full
possession of the Premises and the common facilities of the Center, subject,
however, to the terms and conditions of this Lease.
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SECTION 26. TENANT'S AND LANDLORD'S INSURANCE; INDEMNITY
(a) Tenant's Commercial General Liability Insurance. Commencing as of the
Commencement Date, and thereafter throughout the term of this Lease, Tenant
shall, at Tenant's sole cost and expense, provide and maintain or cause to be
provided and maintained a commercial general liability policy (including
coverage for product and contractual liability), naming Tenant as an insured
(and naming Landlord as an additional insured, said additional insured's
coverage under Tenant's commercial general liability policy to be primary),
protecting Tenant, the business operated by Tenant, and any additional insureds
(including Landlord) against claims for bodily injury (including death) and
property damage occurring within the Premises. Such insurance shall afford
protection to the limits of not less than One Million Dollars ($1,000,000.00)
per occurrence and Five Hundred Thousand Dollars ($500,000.00) with respect to
property damage for fire legal liability. Tenant may use commercially reasonable
deductibles Tenant customarily carries in the conduct of its business; however,
Tenant shall be responsible for all such deductibles or self-insured retention
level. All liability policies shall be written on an occurrence form.
(b) Worker's Compensation. Commencing as of the Commencement Date, and
thereafter throughout the term of this Lease, Tenant shall, at Tenant's sole
cost and expense, provide and maintain or cause to be provided and maintained
workers' compensation insurance (meeting the requirements of the state workers'
compensation laws) and employer liability insurance covering all of Tenant's
employees at the Premises. Tenant shall also use good faith efforts to ensure
all contractors, sub-contractors, vendors, leased employees, and temporary
employees are properly insured for workers' compensation.
(c) Tenant's Umbrella. Commencing as of the Commencement Date, and
thereafter throughout the term of this Lease, Tenant shall, at Tenant's sole
cost and expense, provide and maintain or cause to be provided and maintained an
umbrella liability insurance policy with a Ten Million Dollar ($10,000,000.00)
policy limits, which umbrella policy (or policies) shall list the commercial
general liability, product liability, contractual liability and employer
liability policies required hereunder, and any other liability policy or
policies carried by, or for the benefit of, Tenant as underlying policies. Said
umbrella liability insurance policy shall also name Landlord as an additional
insured (said additional insured's coverage under Tenant's umbrella liability
policy to be primary). All liability policies shall be written on an occurrence
form.
(d) Tenant's Property Insurance. Commencing as of the Commencement Date,
and thereafter throughout the term of this Lease, Tenant shall, at Tenant's sole
cost and expense, provide and maintain or cause to be provided and maintained a
property insurance policy insuring Tenant's contents, fixtures, equipment and
personal property located within the Premises and/or owned by Tenant for all the
hazards and perils normally covered by the Causes of Loss-Special Form. Said
property insurance policy shall include endorsements for coverage against: (i)
earthquake and flood (including, but not limited to, mud slide, flood hazard or
fault area(s), as designated on any map prepared or issued for such purpose by
any governmental authority); and (ii) increased costs of construction and
demolition due to law and ordinance. The foregoing property coverage shall be
provided in amounts sufficient to provide one hundred percent (100%) of the full
replacement cost of Tenant's contents, fixtures, equipment and personal property
located within the Premises and/or owned by Tenant. If for any reason the Causes
of Loss-Special Form is not customarily used in the insurance industry, then the
property insurance policy then in effect shall at least provide coverage for the
following perils: fire, lightning, windstorm and hail, explosion, smoke,
aircraft and vehicles, riot and civil commotion, vandalism and malicious
mischief, sprinkler leakage, sinkhole and collapse, volcanic action, earthquake
or earth movement, and flood, and increased costs of construction and demolition
due to law, ordinance and inflation. The property insurance policy required to
be maintained by Tenant under this Section 26(d) shall: (y) not provide coverage
for Tenant's Improvements (defined in Section 45 below), which Tenant's
Improvements shall be insured by Landlord as required under Section 26(a);
(e) Landlord's Property Insurance. Commencing as of the Commencement Date,
and thereafter throughout the term of this Lease, Landlord shall, at Landlord's
sole cost and expense, provide and maintain or cause to be provided and
maintained a property insurance policy insuring all buildings (and building
additions) and other improvements in the Center, Tenant's
21
store building, and Tenant Improvements (but excluding those items insured by
Tenant as required under Section 26(d)) for all the hazards and perils normally
covered by the Causes of Loss-Special Form. Said property insurance policy shall
include endorsements for coverage against: (i) earthquake and flood (including,
but not limited to, mud slide, flood hazard or fault area(s), as designated on
any map prepared or issued for such purpose by any governmental authority); and
(ii) increased costs of construction and demolition due to law and ordinance.
The foregoing property coverage shall be provided in amounts sufficient to
provide one hundred percent (100%) of the full replacement cost of all buildings
(and building additions) and other improvements in the Center, Tenant's store
building, and Tenant Improvements (but excluding those items insured by Tenant
as required under Section 26(d)). If for any reason the Causes of Loss-Special
Form is not customarily used in the insurance industry, then the property
insurance policy then in effect shall at least provide coverage for the
following perils: fire, lightning, windstorm and hail, explosion, smoke,
aircraft and vehicles, riot and civil commotion, vandalism and malicious
mischief, sprinkler leakage, sinkhole and collapse, volcanic action, earthquake
or earth movement, and flood, and increased costs of construction and demolition
due to law, ordinance and inflation. Neither Tenant nor any of its affiliates or
subtenants shall be liable to Landlord for any loss or damage (including loss of
income), regardless of cause, resulting from fire, flood, act of G-d or other
casualty.
(f) Landlord's Commercial General Liability Insurance. Commencing as of the
Commencement Date, and thereafter throughout the term of this Lease, Landlord
shall, at Landlord's sole cost and expense, provide and maintain or cause to be
provided and maintained a commercial general liability policy (including
coverage for contractual liability), naming Landlord as an insured (and naming
Tenant as an additional insured, said additional insured's coverage under
Landlord's commercial general liability policy to be primary), protecting
Landlord, the business operated by Landlord, and any additional insureds
(including Tenant) against claims for bodily injury (including death) and
property damage occurring upon, in or about the Center (other than the Premises
and those areas insured by other tenants at the Center), including Common Areas.
Such insurance shall afford protection to the limits of not less than One
Million Dollars ($1,000,000.00) per occurrence and Five Hundred Thousand Dollars
($500,000.00) with respect to property damage for fire legal liability. All
liability policies shall be written on an occurrence form. Landlord may use
commercially reasonable deductibles Landlord customarily carries in the conduct
of its business; however, Landlord shall be responsible for all such deductibles
or self-insured retention levels.
(g) Landlord's Umbrella. Commencing as of the Commencement Date, and
thereafter throughout the term of this Lease, Landlord shall, at Landlord's sole
cost and expense, provide and maintain or cause to be provided and maintained an
umbrella liability insurance policy with a Ten Million Dollar ($10,000,000.00)
minimum annual aggregate, which umbrella policy (or policies) shall list
Landlord's commercial general liability and contractual liability policies
required hereunder, and any other liability policy or policies carried by, or
for the benefit of, Landlord as underlying policies. Said umbrella liability
policy shall also name Tenant as an additional insured (said additional
insured's coverage under Landlord's umbrella liability policy to be primary).
All liability policies shall be written on an occurrence form.
(h) All insurance provided for in this Section 26 shall be effected under
standard form policies issued by insurers of recognized responsibility
authorized to do business in the state in which the Premises are located;
provided, however, that Landlord or Tenant may self-insure any of the amounts
herein stated pursuant to a bona fide self-insurance retention program so long
as the amounts so self-insured by such party do not exceed ten percent (10%) of
such party's net worth as computed in accordance with generally accepted
accounting principles consistently applied by such party.
(i) Prior to the Commencement Date, and thereafter during the term hereof
within fifteen (15) days after request therefor by either party, and within
fifteen (15) days after each policy renewal date, Tenant and Landlord shall
furnish the other party with certificates of insurance evidencing all insurance
coverage required herein. All such certificates shall: (i) evidence the
continuous existence during the term hereof of the insurance required hereunder;
(ii) include attachment of an additional insured endorsement; (iii) name any and
all non-standard exclusions or limitations; and (iv) contain a provision that
the insurance carrier shall not cancel or modify the insurance coverage without
giving at least ten (10) days prior written notice thereof
22
to both Landlord and Tenant at their last known address as provided for herein.
Current certificates of insurance shall be delivered to both Landlord and Tenant
in time sufficient to assure that both Landlord and Tenant shall always possess
certificates of insurance evidencing current insurance coverage. All insurance
carriers shall be licensed to do business in the state in which the Premises is
located and shall have a Best's Key Rating Guide rating of A- VIII.
(j) Landlord and Tenant shall neither do nor suffer anything to be done
whereby any of the insurance required by the provisions of this Section 26 shall
or may be invalidated in whole or in part. Landlord shall not permit or suffer
to be done in any part of the Center any activities which shall increase the
rate of any insurance to be maintained by Tenant over that rate normal and
customary for Tenant's type of business or which shall increase the rate on any
insurance maintained by Landlord for which Tenant is required to reimburse
Landlord pursuant to Section 28 hereof. Should such occur, Landlord shall pay,
without reimbursement from Tenant, all costs and expenses of such insurance over
the base rate. Tenant shall not permit or suffer to be done in any part of the
Premises any activities which shall increase the rate of any insurance to be
maintained by Landlord over the base rate. Should such occur, Tenant shall pay
all costs and expenses of such insurance over the base rate.
(k) Notwithstanding anything to the contrary hereinabove contained, Tenant
or Landlord, may, at its option, include any of the insurance coverage
hereinabove set forth in general or blanket policies of insurance. All insurance
required hereunder shall be consistent with sound insurance practices.
(l) Tenant and Landlord shall cooperate with each other in connection with
the collection of any insurance monies that may be due in the event of loss and
Landlord shall execute and deliver to Tenant such proofs of loss and other
instruments which may be required for the purpose of obtaining the recovery of
any such insurance monies.
(m) Tenant Indemnity. Subject to Section 34 of this Lease, Tenant shall
indemnify Landlord, Landlord's agents, employees, officers or directors, against
all damages, claims and liabilities arising from any alleged products liability
or from any accident or injury whatsoever caused to any person, firm or
corporation during the demised term in the Premises, unless such claim arises
from a breach or default in the performance by Landlord of any covenant or
agreement on its part to be performed under this Lease or, to the extent not
required to be insured hereunder, the negligence of Landlord. The
indemnification herein provided shall include all reasonable costs, counsel
fees, expenses and liabilities incurred in connection with any such claim or any
action or proceeding brought thereon.
(n) Landlord Indemnity. Subject to Section 34 of this Lease, Landlord shall
indemnify Tenant, Tenant's officers, directors, employees and agents against all
damages, claims and liabilities arising from any accident or injury whatsoever
caused to any person, firm or corporation during the demised term in the Center
(excluding therefrom the Premises), unless such claim arises from a breach or
default in the performance by Tenant of any covenant or agreement on Tenant's
part to perform under this Lease or, to the extent not required to be insured
hereunder, the negligence of Tenant. The indemnification herein provided shall
include all reasonable costs, counsel fees, expenses and liabilities incurred in
connection with any such claim or any action or proceeding brought thereon.
SECTION 27. REAL ESTATE TAXES
(a) Tenant shall pay Tenant's Proportionate Share (as defined in Section
15(c) above) of any "Real Estate Taxes" (defined in Section 27(b) below) imposed
upon the Center that become due and payable during each lease year included
within the period commencing with the Commencement Date and ending with the
expiration of the term of this Lease. Tenant shall initially pay to landlord as
additional rental, simultaneously with the payment of Base Rent called for under
Section 4(a), the estimated monthly amount of Tenant's Proportionate Share of
Real Estate Taxes as set forth in Section 4(c) of Two and 50/100 Dollars ($2.50)
per square foot, payable in equal monthly installments of Four Thousand One
Hundred Sixty-Six and 67/100 Dollars ($4,166.67) as the estimated amount of
Tenant's Proportionate Share of Real Estate Taxes. Within one hundred twenty
(120) days after the end of each accounting year (which Landlord may change from
time to time), Landlord shall provide Tenant with an annual
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reconciliation of Real Estate Taxes and a statement of the actual amount of
Tenant's Proportionate Share thereof. Any excess payments from Tenant shall be
applied to the next installments of Real Estate Taxes hereunder, or refunded by
Landlord. Any underpayments by Tenant shall be paid to Landlord within thirty
(30) days after receipt of such reconciliation statement. Tenant's estimated
monthly installment of Real Estate Taxes payable hereunder may be adjusted by
written notice from Landlord.
(b) For the purpose of this Lease, the term "Real Estate Taxes" shall
include any special and general assessments, water and sewer rents and other
governmental impositions imposed upon or against the Center of every kind and
nature whatsoever, extraordinary as well as ordinary, foreseen and unforeseen
and each and every installment thereof, which shall or may during the lease term
be levied, assessed or imposed upon or against such Center and of all expenses,
including reasonable attorneys' fees, administrative hearing and court costs
incurred in contesting or negotiating the amount, assessment or rate of any such
real estate taxes, minus any refund received by Landlord.
(c) Notwithstanding any provision of this Lease to the contrary, Tenant
shall not be obligated to pay for any assessment for special improvements
heretofore installed or in the process of installation in connection with the
initial development of the Center, and Landlord hereby agrees to pay for the
same.
(d) The real estate taxes for any lease year shall be the real estate taxes
that become due and payable during such lease year. If any lease year shall be
greater than or less than twelve (12) months, or if the real estate tax year
shall be changed, an appropriate adjustment shall be made. If there shall be
more than one taxing authority, the real estate taxes for any period shall be
the sum of the real estate taxes for said period attributable to each taxing
authority. If, upon the assessment day for real estate taxes for any tax year
fully or partly included within the term of this Lease, a portion of such
assessment shall be attributable to buildings in the process of construction, a
fair and reasonable adjustment shall be made to carry out the intent of this
Section 27.
(e) Upon request, Landlord shall submit to Tenant true copies of the real
estate tax xxxx for each tax year or portion of a tax year included within the
term of this Lease and shall xxxx Tenant for the amount to be paid by Tenant
hereunder. Said xxxx shall be accompanied by a computation of the amount payable
by Tenant and such amount shall be paid by Tenant within thirty (30) days after
receipt of said xxxx.
(f) Should the State of Ohio or any political subdivision thereof or any
governmental authority having jurisdiction thereof, impose a tax and/or
assessment (other than an income or franchise tax) upon or against the rentals
payable hereunder, in lieu of or in addition to assessments levied or assessed
against the Premises, or Center, then such tax and/or assessment shall be deemed
to constitute a tax on real estate for the purpose of this Section 27.
SECTION 28. TENANT'S INSURANCE CONTRIBUTION
Tenant shall pay as additional rent, Tenant's Proportionate Share (as
defined in Section 15(c) above) of the premiums for the insurance maintained by
Landlord on all buildings and improvements, as well as liability insurance, for
the Center, including the Common Areas, as set forth above in Section 28, for
each Lease Year during the term of this Lease. The premiums for the first and
last Lease Years shall be prorated. Tenant shall pay Tenant's Proportionate
Share of such premiums annually upon demand for such payment by Landlord.
Tenant's Proportionate Share thereof shall be paid by Tenant within thirty (30)
days after Landlord's demand therefore. Tenant shall initially pay to Landlord
as additional rental, simultaneously with the payment of Base Rent called for
under Section 4(a), the estimated monthly amount of Tenant's Proportionate Share
of such insurance premiums as set forth in Section 4(c), of 15/100 Dollars
($0.15) per square foot of space in the Premises, payable in equal monthly
installments of Two Hundred Fifty Dollars ($250.00) as the estimated amount of
Tenant's Proportionate Share of such insurance premiums. Within one hundred
twenty (120) days after the end of each accounting year (which Landlord may
change from time to time), Landlord shall provide Tenant with a reconciliation
of the premiums for the insurance maintained by Landlord hereunder and a
statement of the actual amount of Tenant's Proportionate Share thereof. Any
excess payments
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from Tenant shall be applied to the next installments of insurance premiums
payable by Tenant hereunder, or refunded by Landlord. Any underpayments by
Tenant shall be paid to Landlord within thirty (30) days after receipt of such
reconciliation statement. Tenant's monthly installment of insurance premiums
payable hereunder may be adjusted by written notice from Landlord.
SECTION 29. FIXTURES
Provided that Tenant shall repair any damage caused by removal of its
property and provided that the Tenant is not in default under this Lease, Tenant
shall have the right to remove from the Premises all of its signs, shelving,
electrical, and other fixtures and equipment, window reflectors and backgrounds
and any and all other trade fixtures which it has installed in and upon the
Premises.
SECTION 30. SURRENDER
The Tenant covenants and agrees to deliver up and surrender to the Landlord
the physical possession of the Premises upon the expiration of this Lease or its
termination as herein provided in as good condition and repair as the same shall
be at the commencement of the initial term, loss by fire and/or ordinary wear
and tear excepted, and to deliver all of the keys to Landlord or Landlord's
agents.
SECTION 31. HOLDING OVER
There shall be no privilege of renewal hereunder (except as specifically
set forth in this Lease) and any holding over after the expiration by the Tenant
shall be from day to day on the same terms and conditions (with the exception of
rental which shall be prorated on a daily basis at one hundred twenty-five
percent (125%) the daily rental rate of the most recent expired term) at
Landlord's option; and no acceptance of rent by or act or statement whatsoever
on the part of the Landlord or his duly authorized agent in the absence of a
written contract signed by Landlord shall be construed as an extension of the
term or as a consent for any further occupancy.
SECTION 32. NOTICE
Any consent, waiver, notice, demand, request or response thereto or other
instrument required or permitted to be given under this Lease shall be given by
overnight courier or by certified United States mail, return receipt requested,
postage prepaid: (a) if to Landlord, at the address set forth in Section 1; and
(b) if to Tenant, at the address set forth in Section 1 with duplicate copies to
(i) General Counsel, 0000 X. Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 and (ii) Xxxxxxx
X. Xxxxx, Esq., Schottenstein Zox & Xxxx, 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000.
Either party may change its address for notices by notice in the manner set
forth above, given at least thirty (30) days in advance. All such consents,
waivers, notices, demands, requests or other instruments shall be deemed given
upon receipt thereof or upon the refusal of the addressee to receive the same.
SECTION 33. DEFAULT
(a) Elements of Default: The occurrence of any one or more of the following
events shall constitute a default of this Lease by Tenant:
1. Tenant fails to pay any monthly installment of rent within ten (10)
days after the same shall be due and payable, except for the first two (2)
times in any consecutive twelve (12) month period, in which event Tenant
shall have five (5) days after receipt of written notice of such failure to
pay before such failure shall constitute a default;
2. Tenant fails to perform or observe any term, condition, covenant or
obligation required to be performed or observed by it under this Lease for
a period of twenty (20) days after notice thereof from Landlord; provided,
however, that if the term, condition, covenant or obligation to be
performed by Tenant is of such nature that the same cannot reasonably be
cured within twenty (20) days and if Tenant commences such performance or
cure within said twenty (20) day period and thereafter diligently
undertakes to complete the same, then such failure shall not be a default
hereunder if it is cured within a
25
reasonable time following Landlord's notice, but in no event later than
forty-five (45) days after Landlord's notice.
3. A trustee or receiver is appointed to take possession of
substantially all of Tenant's assets in, on or about the Premises or of
Tenant's interest in this Lease (and Tenant or any guarantor of Tenant's
obligations under this Lease does not regain possession within sixty (60)
days after such appointment); Tenant makes an assignment for the benefit of
creditors; or substantially all of Tenant's assets in, on or about the
Premises or Tenant's interest in this Lease are attached or levied upon
under execution (and Tenant does not discharge the same within sixty (60)
days thereafter).
4. A petition in bankruptcy, insolvency, or for reorganization or
arrangement is filed by or against Tenant or any guarantor of Tenant's
obligations under this Lease pursuant to any Federal or state statute, and,
with respect to any such petition filed against it, Tenant or such
guarantor fails to secure a stay or discharge thereof within sixty (60)
days after the filing of the same.
(b) Landlord's Remedies: Upon the occurrence of any event of default,
Landlord shall have the following rights and remedies, any one or more of which
may be exercised without further notice to or demand upon Tenant:
1. Landlord may re-enter the Premises and cure any default of Tenant,
in which event Tenant shall reimburse Landlord for any reasonable
out-of-pocket cost and expenses which Landlord may incur to cure such
default; and Landlord shall not be liable to Tenant for any loss or damage
which Tenant may sustain by reason of Landlord's action.
2. Landlord may terminate this Lease or Tenant's right to possession
under this Lease as of the date of such default, without terminating
Tenant's obligation to pay rent due hereunder, in which event (A): neither
Tenant nor any person claiming under or through Tenant shall thereafter be
entitled to possession of the Premises, and Tenant shall immediately
thereafter surrender the Premises to Landlord; (B) Landlord may re-enter
the Premises and dispose Tenant or any other occupants of the Premises by
force, summary proceedings, ejectment or otherwise, and may remove their
effects, without prejudice to any other remedy which Landlord may have for
possession or arrearages in rent; and (C) notwithstanding a termination of
this Lease, Landlord shall use good faith efforts to re-let all or any part
of the Premises for at least the balance of the term of this Lease for
commercially reasonable rent, whereupon Tenant shall be obligated to pay to
Landlord as liquidated damages the difference between the rent provided for
herein and that provided for in any lease covering a subsequent re-letting
of the Premises, such deficiency to be computed and paid monthly at the
times that Rent is payable hereunder, together with all of Landlord's
reasonable costs and expenses for preparing the Premises for re-letting,
including all repairs which are Tenant's obligations hereunder, reasonable
broker's and attorney's fees, and all loss or damage which Landlord may
sustain by reason of such termination, re-entry and re-letting, it being
expressly understood and agreed that the liabilities and remedies specified
herein shall survive the termination of this Lease. Notwithstanding a
termination of this Lease by Landlord, Tenant shall remain liable for
payment of all rentals and other charges and costs imposed on Tenant
herein, in the amounts, at the times and upon the conditions as herein
provided. Landlord shall credit against such liability of the Tenant all
amounts received by Landlord from such re-letting after first reimbursing
itself for all reasonable costs incurred in curing Tenant's defaults and
re-entering, preparing and refinishing the Premises for re-letting, and
re-letting the Premises.
3. Upon termination of this Lease pursuant to Section 33(b)2, Landlord
may recover possession of the Premises under and by virtue of the
provisions of the laws of the State of Ohio, or by such other proceedings,
including reentry and possession, as may be applicable.
4. If the Tenant shall not remove all of Tenant's property from said
Premises as provided in this Lease, Landlord, at its option, may remove any
or all of said property in any manner that Landlord shall choose and store
same without liability for loss thereof,
26
and Tenant will pay the Landlord, on demand, any and all reasonable
expenses incurred in such removal and storage of said property for any
length of time during which the same shall be in possession of Landlord or
in storage, or Landlord may, upon thirty (30) days prior notice to Tenant,
sell any or all of said property in such manner and for such price as the
Landlord may reasonably deem best and apply the proceeds of such sale upon
any amounts due under this Lease from the Tenant to the Landlord, including
the reasonable expenses of removal and sale.
5. Any damage or loss of rent sustained by Landlord may be recovered
by Landlord, at Landlord's option, at the time of the reletting, or in
separate actions, from time to time, as said damage shall have been made
more easily ascertainable by successive relettings, or at Landlord's option
in a single proceeding deferred until the expiration of the term of this
Lease (in which event Tenant hereby agrees that the cause of action shall
not be deemed to have accrued until the date of expiration of said term) or
in a single proceeding prior to either the time of reletting or the
expiration of the term of this Lease.
6. In the event of a breach by Tenant of any of the covenants or
provisions hereof, Landlord shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity as if reentry,
summary proceedings, and other remedies were not provided for herein.
Mention in this Lease of any particular remedy shall not preclude Landlord
from any other remedy, in law or in equity. Tenant hereby expressly waives
any and all rights of redemption granted by or under any present or future
laws in the event of Tenant being evicted or dispossessed for any cause, or
in the event of Landlord obtaining possession of the Premises by reason of
the violation by Tenant of any of the covenants and conditions of this
Lease or other use.
7. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws, in the event of eviction or
dispossession of Tenant by Landlord under any provision of this Lease. No
receipt of monies by Landlord from or for the account of Tenant or from
anyone in possession or occupancy of the Premises after the termination of
this Lease or after the giving of any notice shall reinstate, continue or
extend the term of this Lease or affect any notice given to the Tenant
prior to the receipt of such money, it being agreed that after the service
of notice or the commencement of a suit, or after final judgment for
possession of said Premises, the Landlord may receive and collect any rent
or other amounts due Landlord and such payment shall not waive or affect
said notice, said suit or said judgment.
(c) Additional Remedies and Waivers: The rights and remedies of Landlord
set forth herein shall be in addition to any other right and remedy now or
hereinafter provided by law and/or equity and all such rights and remedies shall
be cumulative and shall not be deemed inconsistent with each other, and any two
or more or all of said rights and remedies may be exercised at the same time or
at different times and from time to time without waiver thereof of any right or
remedy provided or reserved to Landlord. No action or inaction by Landlord shall
constitute a waiver of a default and no waiver of default shall be effective
unless it is in writing, signed by the Landlord.
(d) Default by Landlord. Any failure by Landlord to observe or perform any
provision, covenant or condition of this Lease to be observed or performed by
Landlord, if such failure continues for thirty (30) days after written notice
thereof from Tenant to Landlord, shall constitute a default by Landlord under
this Lease, provided, however, that if the nature of such default is such that
the same cannot reasonably be cured within a thirty (30) day period, Landlord
shall not be deemed to be in default if it shall commence such cure within such
thirty (30) day period and thereafter rectify and cure such default with due
diligence.
(e) Interest on Past Due Obligations: All monetary amounts required to be
paid by Tenant or Landlord hereunder which are not paid on or before the due
date thereof shall, from and after such due date, bear interest at the Interest
Rate, and shall be due and payable by such party without notice or demand.
(f) Tenant's Remedies. In the event of default by the Landlord with respect
to the Premises, Tenant shall have the option to cure said default. Landlord
shall reimburse Tenant for
27
the reasonable costs incurred by Tenant in curing such default within thirty
(30) days after invoice thereof by Tenant, together with reasonable evidence
supporting such invoiced amount. Tenant shall also have any and all rights
available under the laws of the state in which the Premises are situated;
provided, however, that any right of offset available to Tenant shall be subject
to the provisions of Section 35 below.
SECTION 34. WAIVER OF SUBROGATION
Landlord and Tenant, and all parties claiming under each of them, mutually
release and discharge each other from all claims and liabilities arising from or
caused by any casualty or hazard covered or required hereunder to be covered in
whole or in part by insurance coverage required to be maintained by the terms of
this Lease on the Premises or in connection with the Center or activities
conducted with the Premises, and waive any right of subrogation which might
otherwise exist in or accrue to any person on account thereof. All policies of
insurance required to be maintained by the parties hereunder shall contain
waiver of subrogation provisions so long as the same are available.
SECTION 35. LIABILITY OF LANDLORD; EXCULPATION
(a) Except with respect to any damages resulting from the gross negligence
of Landlord, its agents, or employees, Landlord shall not be liable to Tenant,
its agents, employees, or customers for any damages, losses, compensation,
accidents, or claims whatsoever. The foregoing notwithstanding, it is expressly
understood and agreed that nothing in this Lease contained shall be construed as
creating any liability whatsoever against Landlord personally, and in particular
without limiting the generality of the foregoing, there shall be no personal
liability to pay any indebtedness accruing hereunder or to perform any covenant,
either express or implied, herein contained, or to keep, preserve or sequester
any property of Landlord and that all personal liability of Landlord to the
extent permitted by law, of every sort, if any, is hereby expressly waived by
Tenant, and by every person now or hereafter claiming any right or security
hereunder; and that so far as the parties hereto are concerned, the owner of any
indebtedness or liability accruing hereunder shall look solely to the Premises
and the Center for the payment thereof.
(b) If the Tenant obtains a money judgment against Landlord, any of its
officers, directors, shareholders, partners, members or their successors or
assigns under any provisions of or with respect to this Lease or on account of
any matter, condition or circumstance arising out of the relationship of the
parties under this Lease, Tenant's occupancy of the building or Landlord's
ownership of the Center, Tenant shall be entitled to have execution upon any
such final, unappealable judgment only upon Landlord's fee simple or leasehold
estate in the Center (whichever is applicable) and not out of any other assets
of Landlord, or any of its officers, directors, shareholders, members or
partners, or their successor or assigns; and Landlord shall be entitled to have
any such judgment so qualified as to constitute a lien only on said fee simple
or leasehold estate.
Notwithstanding the above, Tenant shall have the right to offset any final,
unappealable judgment against twenty five percent (25%) of all minimum rent and
all percentage rental (but no other additional rent components) if not paid to
Tenant by Landlord within thirty (30) days thereafter.
(c) It is expressly agreed that nothing in this Lease shall be construed as
creating any personal liability of any kind against the assets of any of the
officers, directors, members, partners or shareholders of Tenant, or their
successors and assigns.
SECTION 36. RIGHTS CUMULATIVE
Unless expressly provided to the contrary in this Lease, each and every one
of the rights, remedies and benefits provided by this Lease shall be cumulative
and shall not be exclusive of any other of such rights, remedies and benefits or
of any other rights, remedies and benefits allowed by law.
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SECTION 37. MITIGATION OF DAMAGES
Notwithstanding any of the terms and provisions herein contained to the
contrary, Landlord and Tenant shall each have the duty and obligation to
mitigate, in every reasonable manner, any and all damages that may or shall be
caused or suffered by virtue of defaults under or violation of any of the terms
and provisions of this Lease agreement committed by the other.
SECTION 38. SIGNS
(a) Landlord shall, at its sole cost and expense, construct, erect and
maintain at the location(s) shown on the Site Plan, pylon sign(s) upon which
Tenant's advertising panel shall be installed, provided same are approved by the
applicable local governmental authority. Tenant's advertising panel shall be in
the position and shall otherwise be as shown on Exhibit "F" attached hereto and
made a part hereof. Landlord hereby approves Tenant's advertising panel for the
pylon sign(s) as shown on said Exhibit "F". Thereafter, throughout the term of
this Lease, Tenant shall have continuous representation on (a) such pylon
sign(s) and any replacement pylon sign(s) consistent with Exhibit "F" and (b)
any new pylon signs erected at the Center, and Tenant shall have no worse
representation on any such new pylon sign(s) than any other tenant of the Center
leasing the same or less square feet of leasable space as Tenant.
(b) Tenant shall have the right to install its standard signs and awnings
on the exterior of the Leased Premises provided that the same are in compliance
with local code. Landlord agrees to provide an adequate building facia for
Tenant's signs. Tenant shall also have the right to place signs or banners in
the windows of the Premises provided the same have been professionally prepared.
(c) Tenant shall have the right to alter its exterior and pylon signs with
Landlord's consent, which consent shall not be unreasonably withheld; provided,
however, Tenant shall have no obligation to obtain Landlord's consent to any
change in Tenant's signage if such signage is consistent with Tenant's then
prototypical signage.
SECTION 39. ENTIRE AGREEMENT
This Lease shall constitute the entire agreement of the parties hereto; all
prior agreements between the parties, whether written or oral, are merged herein
and shall be of no force and effect. This Lease cannot be changed, modified, or
discharged orally but only by an agreement in writing signed by the party
against whom enforcement of the change, modification or discharge is sought.
SECTION 40. TENANT'S PROPERTY
All equipment, inventory, trade fixtures and other property owned by the
Tenant and located in the Premises shall remain the personal property of the
Tenant and shall be exempt from the claims of the Landlord or any mortgagee or
lienholder of the Landlord without regard to the means by which they are
installed or attached specifically not including, however, the Tenant
Improvements (defined in Section 49(a) below) which throughout the term and upon
the expiration of this Lease shall be and remain the property of Landlord. The
Landlord expressly waives any statutory or common law landlord's lien and any
and all rights granted under any present or future laws to levy or distrain for
rent (whether in arrears or in advance) against the aforesaid property of the
Tenant on the Premises and further agrees to execute any reasonable instruments
evidencing such waiver, at any time or times hereafter upon the Tenant's request
including the "Landlord's Waiver" described in Section 56(c) hereof. The Tenant
shall have the right, at any time or from time to time, to remove such trade
fixtures or equipment. If such removal damages any part of the Premises, the
Tenant shall repair such damages. Tenant is expressly authorized to finance,
pledge, and encumber its own trade fixtures, equipment, and inventory for
purposes of financing such trade fixtures, equipment and inventory.
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SECTION 41. BINDING UPON SUCCESSORS
The covenants, conditions, and agreements made and entered into by the
parties hereto shall be binding upon and inure to the benefit of their
respective heirs, representatives, successor and assigns.
SECTION 42. HAZARDOUS SUBSTANCES
(a) During the term of this Lease, Tenant shall not suffer, allow, permit
or cause the generation, accumulation, storage, possession, release or threat of
release of any hazardous substance or toxic material, as those terms are used in
the Comprehensive Environmental Response Compensation and Liability Act of 1980,
as amended, and any regulations promulgated thereunder, or any other present or
future federal, state or local laws, ordinances, rules, and regulations. Tenant
shall indemnify and hold Landlord harmless from any and all liabilities,
penalties, demands, actions, costs and expenses (including without limitation
reasonable attorney fees), remediation and response costs incurred or suffered
by Landlord directly or indirectly arising due to the breach of Tenant's
obligations set forth in this Section. Such indemnification shall survive
expiration or earlier termination of this Lease. At the expiration or sooner
termination hereof, Tenant shall return the Premises to Landlord in
substantially the same condition as existed on the date of commencement hereof
free of any hazardous substances in, on or from the Premises.
(b) Landlord hereby represents and warrants that, except as set forth in
those certain Phase I Environmental Site Assessments dated March 22, 2004 and
September 14, 2004, respectively, prepared by R.E. Warner & Associates Inc.: (i)
it has not used, generated, discharged, released or stored any hazardous
substances on, in or under the Center and has received no notice and has no
knowledge of the presence in, on or under the Center of any such hazardous
substances; (ii) to Landlord's knowledge there have never been any underground
storage tanks at the Center, whether owned by the Landlord or its predecessors
in interest; (iii) to Landlord's knowledge there have never been accumulated
tires, spent batteries, mining spoil, debris or other solid waste (except for
rubbish and containers for normal scheduled disposal in compliance with all
applicable laws) in, on or under the Center; (iv) to Landlord's knowledge it has
not spilled, discharged or leaked petroleum products other than de minimis
quantities in connection with the operation of motor vehicles on the Center; (v)
to Landlord's knowledge there has been no graining, filling or modification of
wetlands (as defined by federal, state or local law, regulation or ordinance) at
the Center; and (vi) to Landlord's knowledge there is no asbestos or
asbestos-containing material in the Premises. The representations and warranties
set forth in this subparagraph shall apply to any contiguous or adjacent
property owed by the Landlord. Landlord hereby indemnifies Tenant for any and
all loss, cost, damage or expense to Tenant resulting from any misrepresentation
or breach of the foregoing representations and warranties.
(c) If any such hazardous substances are discovered at the Center (unless
introduced by the Tenant, its agents or employees) or if any asbestos or
asbestos containing material is discovered in the Premises (unless introduced by
the Tenant, its agents or employees), and removal, encapsulation or other
remediation is required by applicable laws, the Landlord immediately and with
all due diligence and at no expense to the Tenant shall take all measures
necessary to comply with all applicable laws and to remove such hazardous
substances or asbestos from the Center and/or encapsulate or remediate such
hazardous substances or asbestos, which removal and/or encapsulation or
remediation shall be in compliance with all environmental laws and regulations,
and the Landlord shall repair and restore the Center at its expense. From the
date such encapsulation, remediation and restoration is complete, the rent due
hereunder shall be reduced by the same percentage as the percentage of the
Premises which, in the Tenant's reasonable judgment, cannot be safely,
economically or practically used for the operation of the Tenant's business.
Anything herein to the contrary notwithstanding, if in the Tenant's reasonable
judgment, such removal, encapsulation, remediation and restoration cannot be
completed within one hundred eighty (180) days or the same is not actually
completed by Landlord within such one hundred eighty (180) day period following
the date such hazardous substances or asbestos are discovered and such condition
materially adversely affects Tenant's ability to conduct normal business
operations in the premises, then the Tenant may terminate this Lease by written
notice to the Landlord within thirty (30) days after such 180 day period, which
notice shall be effective on Landlord's receipt thereof. Landlord shall comply
with OSHA 29
30
CFR 1910.1001 (j) to notify tenants, including Tenant, of asbestos related
activities in the Premises and the Center including, but not limited to,
selection of the certified/licensed asbestos abatement contractor, scope of the
abatement work, and final clearance testing procedures and results.
SECTION 43. TRANSFER OF INTEREST
If Landlord should sell or otherwise transfer its interest in the Premises,
upon an undertaking by the purchaser or transferee to be responsible for all the
covenants and undertakings of Landlord accruing subsequent to the date of such
sale or transfer, Tenant agrees that Landlord shall thereafter have no liability
to Tenant under this Lease or any modifications or amendments thereof, or
extensions thereof, except for such liabilities which might have accrued prior
to the date of such sale or transfer of its interest by Landlord.
SECTION 44. ACCESS TO PREMISES
Landlord and its representatives shall have free access to the Premises at
all reasonable times for the purpose of: (a) examining the same or to make any
alterations or repairs to the Premises that Landlord may deem necessary for its
safety or preservation; (b) exhibiting the Premises for sale or mortgage
financing; (c) during the last three (3) months of the term of this Lease, for
the purpose of exhibiting the Premises and putting up the usual notice "for
rent" which notice shall not be removed, obliterated or hidden by Tenant,
provided, however, that any such action by Landlord shall cause as little
inconvenience as reasonably practicable and such action shall not be deemed an
eviction or disturbance of Tenant nor shall Tenant be allowed any abatement of
rent, or damages for an injury or inconvenience occasioned thereby.
SECTION 45. HEADINGS
The headings are inserted only as a matter of convenience and for reference
and in no way define, limit or describe the scope or intent of this Lease.
SECTION 46. NON-WAIVER
No payment by Tenant or receipt by Landlord or its agents of a lesser
amount than the rent in this Lease stipulated shall be deemed to be other than
on account of the stipulated rent nor shall an endorsement or statement on any
check or any letter accompanying any check or payment of rent be deemed an
accord and satisfaction and Landlord or its agents may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy in this Lease provided.
SECTION 47. SHORT FORM LEASE
This Lease shall not be recorded, but a short form lease, which describes
the property herein demised, gives the term of this Lease and refers to this
Lease, shall be executed by the parties hereto, upon demand of either party and
such short form lease may be recorded by Landlord or Tenant at any time either
deems it appropriate to do so. The cost and recording of such short form lease
shall belong to the requesting party.
SECTION 48. ESTOPPEL CERTIFICATE
Each party agrees that at any time and from time to time on ten (10) days
prior written request by the other, it will execute, acknowledge and deliver to
the requesting party a statement in writing stating that this Lease is
unmodified and in full force and effect (or, if there have been modifications,
stating the modifications, and that the Lease as so modified is in full force
and effect, and the dates to which the rent and other charges hereunder have
been paid, and such other information as may reasonably re requested, it being
intended that any such statements delivered pursuant to this Section may be
relied upon by any current or prospective purchaser of or any prospective holder
of a mortgage or a deed of trust upon or any interest in the fee or any
leasehold or by the mortgagee, beneficiary or grantee of any security or
interest, or any assignee of any thereof or under any mortgage, deed of trust or
conveyance for security purposes now or hereafter done or made with respect to
the fee of or any leasehold interest in the Premises
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SECTION 49. TENANT'S REIMBURSEMENT
(a) Landlord shall pay Tenant Two Hundred Forty Thousand Dollars
($240,000.00) (the "Tenant Reimbursement"), as payment for all costs incurred on
behalf of Tenant for the purchase, erection, and installation of Tenant
Improvements on or within the Premises. "Tenant Improvements" shall consist of
the work described in the attached Exhibit "G". The Tenant Reimbursement shall
be paid by Landlord to Tenant within ten (10) days of the later of (i) Tenant
opening for business in the Premises and (ii) Tenant providing to Landlord a
lien waiver from Tenant's general contractor. In the event Landlord does not
timely pay the Tenant Reimbursement to Tenant, (a) Landlord shall pay to Tenant
interest on such unpaid amounts the Interest Rate and (b) Tenant shall have the
right to deduct any and all such amounts owed Tenant against payments of Rent
thereafter due Landlord until such time as Tenant has been credited the full
amount of the Tenant Reimbursement plus applicable interest.
(b) Notwithstanding anything to the contrary contained in this Lease, the
Tenant Improvements shall, at all times during the term of this Lease and upon
the expiration or earlier termination of this Lease, be the property of
Landlord. Tenant shall not acquire any interest, equitable or otherwise, in any
Tenant Improvement.
SECTION 50. TENANT'S TERMINATION RIGHT
In the event (i) that Tenant's gross sales (as defined in Section 5 of this
Lease) shall be less than Six Million Six Hundred Thousand Dollars
($6,600,000.00) in either of the eighth (8th) or ninth (9th) Lease Years of the
initial term hereof, and (ii) Tenant was open and operating for business for the
Permitted Use during the Center's standard business days and hours during the
eighth (8th) and ninth (9th) Lease Years (unless Tenant was not open and
operating on account of casualty or condemnation), Tenant shall have the right,
at Tenant's sole election, provided that Tenant is not then in default of the
terms of this Lease beyond any applicable notice and cure periods, on or before
the date (the "Last Termination Notice Date") which is thirty (30) days after
the end of the ninth (9th) Lease Year, to send to Landlord a notice terminating
this Lease as of the last day of the tenth (10th) Lease Year (the "Tenant's
Termination Date"). In the event that Tenant shall so terminate this Lease in
accordance with the provisions of this Section 50, then the term of this Lease
shall terminate and expire on Tenant's Termination Date with the same force and
effect as though said date was the scheduled expiration date of the term under
this Lease. Notwithstanding the giving of such termination notice and Tenant's
exercise of its termination right under this Section 50, Tenant shall perform
and observe all of Tenant's obligations under this Lease through and including
the Tenant's Termination Date and Tenant shall pay to Landlord, on or before the
Tenant's Termination Date, the sum of One Hundred Thousand Dollars
($100,000.00). In the event Tenant exercises the termination right provided for
in this Section 50, Landlord shall have the right, upon ten (10) days prior
written notice, at Tenant's corporate headquarters, to examine Tenant's books
and records relating to gross receipts at the Premises, provided such right
shall expire sixty (60) days after Tenant notifies Landlord of Tenant's exercise
of Tenant's election to terminate the Lease pursuant to the provisions of this
Section 50.
SECTION 51. NO BROKER
Landlord and Tenant each represent to the other that they have not entered
into any agreement or incurred any obligation in connection with this
transaction which might result in the obligation to pay a brokerage commission
to any broker. Each party shall indemnify and hold the other party harmless from
and against any claim or demand by any broker or other person for bringing about
this Lease who claims to have dealt with such indemnifying party, including all
expenses incurred in defending any such claim or demand (including reasonable
attorney's fees).
SECTION 52. UNAVOIDABLE DELAYS
In the event either party hereto (the "Delayed Party") shall be delayed or
hindered in or prevented from the performance of any act required under this
Lease by reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, the unforeseen application of restrictive
governmental laws or regulations, riots, insurrection, war, acts of terrorism or
other reason of a like nature not the fault of the Delayed Party in performing
work or
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doing acts required under the terms of this Lease, then performance of such act
shall be excused for the period of the delay, and the period for the performance
of any such act shall be extended for a period equivalent to the period of such
delay, provided that the Delayed Party notified the other party within fifteen
(15) days of the Delayed Party being informed of the occurrence of the event
causing such delay. The provisions of this Section 52 shall not operate to
excuse either party from the payment of any rental or other monetary sums due
under the terms of this Lease.
SECTION 53. TIMELY EXECUTION OF LEASE
Landlord and Tenant agree that this Lease, and the parties' obligations
hereunder, shall automatically be null and void and this Lease shall terminate
automatically without further action of the parties if both parties do not
execute this Lease and both parties have not received an original thereof within
sixty (60) days after the date of execution hereof by the first party to execute
this Lease.
SECTION 54. ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than the
entire rent and all other additional rents and charges hereunder shall be deemed
to be other than payment on account of the earliest stipulated rent and other
additional rents and charges hereunder, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment for rent or other
additional rent and charges be deemed an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance of such rent and other additional rents and charges or
pursue any other right or remedy available to the Landlord.
SECTION 55. WAIVER OF JURY TRIAL
Landlord and Tenant do hereby knowingly, voluntarily and intentionally
waive the right to a trial by jury of any and all issues either now or
hereinafter provided by law in any action or proceeding between the parties
hereto, or their successors, arising directly or indirectly out of or in any way
connected with this Lease or any of its provisions, Tenant's use or occupancy of
said premises and/or any claim for personal injury or property damage including,
without limitation, any action to rescind or cancel this Lease, and any claim or
defense asserting that this Lease was fraudulently induced or is otherwise void
or voidable. It is intended that said waiver shall apply to any and all
defenses, rights and/or counterclaims in any action or proceeding at law or in
equity. This waiver is a material inducement for Landlord and Tenant to enter
into this Lease.
SECTION 56. LEASEHOLD FINANCING
(a) Landlord acknowledges and agrees that Tenant may from time to time
during the term, without the consent of Landlord, mortgage or otherwise finance
and encumber, whether by leasehold deed of trust or mortgage, collateral
assignment of this Lease, lease/sublease-back, and/or assignment/leaseback, any
and/or all of its leasehold estate hereunder, and property and rights in and to
the Leased Premises granted to it under this Lease, as security for the payment
of an indebtedness (any and all of which are herein referred to as a "Leasehold
Mortgage" and the holder thereof is herein referred to as "Leasehold
Mortgagee"). Any such Leasehold Mortgage shall be a lien only upon Tenant's
leasehold estate hereunder and Tenant's interests in this Lease and shall not
encumber Landlord's fee simple title to the Center or the Leased Premises.
Pursuant to any such Leasehold Mortgage, the Leasehold Mortgagee or another
person or entity (a "Successor-Tenant") may acquire title to Tenant's interest
in the leasehold estate in the Leased Premises in any lawful way, including but
not limited to, through foreclosure, assignment in lieu of foreclosure, or
otherwise. In such event, the Successor-Tenant shall succeed to the rights of
Tenant under this Lease, including the right to possession of the Leased
Premises, in which event Landlord shall recognize the Successor-Tenant as the
tenant under this Lease, the same as if such Successor-Tenant were the original
tenant hereunder.
(b) Tenant shall notify Landlord (and any Fee Mortgagee, as hereinafter
defined in Section 56(d) below), in the manner hereinafter provided for the
giving of notice, of the execution of such Leasehold Mortgage and the name and
place for service of notice upon Leasehold Mortgagee. Upon such notification of
Landlord that Tenant has entered into a
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Leasehold Mortgage, Landlord hereby agrees for the benefit of such Leasehold
Mortgagee, and upon written request by Tenant, to execute and deliver to Tenant
and Leasehold Mortgagee a "Landlord's Agreement" whereby Landlord agrees to
recognize the interest of Leasehold Mortgagee and any Successor-Tenant
hereunder, on commercially reasonable terms and conditions acceptable to
Leasehold Mortgagee.
(c) Landlord does hereby waive any statutory or other lien of the Landlord
in Tenant's present and after-acquired assets, including among other things,
Tenant's inventory and equipment. To evidence such waiver for the benefit of
Tenant's existing lender, Landlord shall, simultaneously with the execution and
delivery of this Lease, execute and deliver to Tenant the "Landlord's Waiver"
attached hereto and made a part hereof as Exhibit "H".
(d) In the event that, at any time prior to the execution of this Lease and
the recordation of a memorandum of lease in accordance with Section 47 hereof,
Landlord has mortgaged or otherwise encumbered the fee simple title to the
Premises, Landlord shall deliver to Tenant a commercially reasonable SNDA (as
defined in Section 11) containing terms substantially similar to the terms of
the document so entitled attached hereto and made a part hereof as Exhibit "I",
duly executed by the holder of any such mortgage or encumbrance (the "Fee
Mortgagee"). Landlord agrees that Tenant's obligations hereunder shall be
contingent upon delivery by Landlord to Tenant of an SNDA executed by the Fee
Mortgagee on or before the Commencement Date, as more fully set forth in Section
11.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and
year first above written.
LANDLORD:
JLP-HARVARD PARK, LLC
an Ohio limited liability company
By: Jubilee Limited Partnership,
an Ohio limited partnership
Its: Sole Member
By: Schottenstein Professional Asset
Management Corporation, an Ohio
corporation
Its: General Partner
By: /s/ Xxx Xxxxxxxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxxxxxxx
Title: Chairman
TENANT:
DSW INC.,
an Ohio corporation
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President - General Counsel
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