<PAGE>
EXHIBIT 10.44
AGREEMENT OF LEASE
THIS
AGREEMENT OF LEASE made as of 1st day of March, 1994, between
Jubilee
Limited Partnership, a(n)
Ohio limited partnership (the "Landlord"), and Value
City Department Stores, Inc.,
a(n) Ohio Corporation (the "Tenant").
1. Basic
Lease Provisions and Premises.
(a)
Basic Lease
Provisions.
(i) Name
of Shopping Center: The Crossing at Hobart
(ii) Leasable
Area of Premises: 95,086 sq. ft.
(iii) Gross Floor Area
of Shopping Center: 952,960 sq. ft
(iv) Tenant's
Proportionate Share of Common Area
Expense: 9.97 Percent
(v)
Tenant's Proportionate Share of Real Estate
Taxes: 9.97 Percent
(vi) Primary
Lease Term: 15 years
(vii) Annual
Fixed Rent: Years 1-5 $404,115.50
Years 6-10
$427,887.00
Years 11-15 $451,585.00
(viii) Monthly
Installment of Fixed Rent: Years 1-5 $33,676.29
Years 6-10
$35,657.25
Years 11-15 $37,632.09
(ix) Renewal
Lease Term: Two (2), Five (5) year renewal terms
(x) Annual
Fixed Rent During Renewal Term: Years 16-20 $475,430.00
Years 21-25
$499,201.5
(xi) Monthly
Installment of Fixed
Rent During Renewal
Term: Years 16-20 $39,619.17
Years 21-25 $41,600.13
(b)
Landlord hereby leases to Tenant, and Tenant hereby rents
from
Landlord, the premises
containing approximately 95,086 square feet and known as
Value City Department Store
space and outlined in red on the site plan attached
to this Lease as Exhibit "A"
and made a part hereof (the "Site Plan"), together
with all improvements now or
to be constructed thereon, and all easements,
rights, privileges and
interests appurtenant thereto (collectively referred to
as the "Premises"). The
Premises constitute a portion of a shopping center known
as The Crossing at Hobart
(the "Center"). Landlord represents and warrants to
Tenant that the Premises and
Center are substantially shown on the Site Plan,
including all rights of
access, ingress and egress, at the point shown on the
Site Plan, in, to, from and
over any and all streets, ways or alleys adjoining
the Center. The real property
comprising the Center is more particularly
described on Exhibit "B",
attached hereto and made a part hereof.
(c)
Landlord also grants to Tenant, its customers, employees,
licensees,
invitees and subtenants a
non-exclusive easement in common with the other
tenants of the Center for the
use of all parking areas, driveways, outdoor
lighting facilities,
sidewalks, service areas, landscaped areas (including
all
landscaped areas adjacent to
the Premises) footpaths, corridors and the other
areas intended for the
non-exclusive use of the tenants of the Center
(collectively referred to as
the "Common Areas"). Tenant shall also have the
right to use, on a
non-exclusive basis with other tenants of the Center,
the
areas, if any, on real estate
adjacent to the Center and shown on the Site Plan.
Landlord covenants,
represents and warrants that, during the Lease term,
there
shall be reasonably adequate
sidewalks, driveways and roadways for automotive
and pedestrian ingress and
egress to and from Tenant's Premises and adjacent
public streets and
highways.
2. Site
Plan. The 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. The Landlord may not modify
or replace the Site Plan
without the prior written consent of the Tenant, which
consent shall not be
unreasonably withheld or delayed. No such modification
or
replacement shall (i) reduce
the ratio of parking spaces to gross leasable area
of buildings in the Center
shown on the Site Plan, (ii) reduce or rearrange the
parking spaces
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cross-hatched on the Site
Plan, (ii) interfere with truck access to the loading
doors of the Premises, (iv)
interfere with customer access to the Premises or
the parking areas closest to
the Premises, (v) 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.
3.
Term.
(a)
Subject to the terms and provisions of paragraph 28 hereof,
the
"Commencement Date" of this
Lease shall be the date on which the Landlord
receives written notice from
the Tenant that the conditions to this Lease as set
forth in paragraph 28 have
been satisfied or waived by Tenant, which date shall
not be later than two hundred
and seventy-nine (279) days after the date of this
Lease.
(b) The
construction term (the "Construction Term") of this Lease
shall
begin on the Commencement
Date and end on the "Rent Commencement Date" (as
hereinafter defined). During
the Construction Term, the Tenant shall proceed to
renovate the Premises and to
install and construct in the Premises certain
additional improvements, as
provided in paragraph 8 hereof.
(c) The
initial term (the "Initial Term") of the Lease shall (i)
commence
on the date on which the
Tenant opens for business in the Premises, but in no
event later than December 31,
1994 (the "Rent Commencement Date") and (ii) end
on the last day of the
fifteenth (15th) full Lease Year. The term "Lease Year"
shall mean a period of twelve
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 Lease Year shall begin
on
the anniversary of the first
Lease Year.
(d) The
Tenant shall have two (2) consecutive separate options to
extend
the term of this Lease for
successive renewal terms of five (5) Lease Years
each. The Tenant may exercise
each such renewal option by giving written notice
to the Landlord at least
ninety (90) days prior to the end of the then current
term or renewal term;
provided, however, that if the Tenant fails to exercise
any renewal term option, the
Tenant's rights to exercise the option shall not
expire until thirty (30) days
after written notice to the Tenant from the
Landlord of the Tenant's
failure to exercise said option.
(e) The
Construction Term, 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, the 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 the Tenant may deem reasonably
necessary; provided that (i)
such entry does not interfere with the business, if
any, being operated in the
Premises, and (ii) the Tenant shall restore the
Premises to substantially the
same condition as existed on the date of this
Lease. In consideration of
the Tenant's right to inspect the Premises, the
Tenant agrees to indemnify,
defend and hold the Landlord harmless from any and
all loss, damage, claims,
costs, demands or expenses (including reasonable
attorney's fees and
litigation costs) resulting from such entry on the
Premises
by the Tenant or its
agents.
4.
Rent.
(a) During
the Initial Term and any renewal term hereof, the Tenant
agrees
to pay to the Landlord annual
base rent in the amounts and for the periods set
forth below.
<TABLE>
<CAPTION>
Annual Rent
-----------
Period Per Sq.Ft.
Annual
Rent Monthly
Rent
------ ----------
-----------
------------
<S>
<C>
<C>
<C>
1-5
$4.25
$404,115.50 $
33,676.29
6-10
$4.50
$427,887.00 $
35,657.25
11-15
$4.75
$451,585.00 $
37,632.09
</TABLE>
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(b) Such
rent shall be payable in advance in equal monthly
installments
payable on the first day of
each calendar month during the term hereof,
commencing on the first day
of the first full calendar month following the Rent
Commencement Date. All
payments of rent shall be made to the Landlord at the
address specified in
paragraph 35 hereof or as the Landlord otherwise
notifies
the Tenant in
writing.
(c) If, at
any time or times during the term, the Premises are
remeasured
and it is determined from
such remeasurement that the gross leasable square
footage of the Premises as
set forth in paragraph 1 of this Lease is incorrect,
the annual rent shall be
adjusted to equal the product of the actual gross
leasable square footage of
the Premises multiplied by the applicable amount of
annual rent per square foot
as set forth in subparagraph (a) above. Upon the
request of either party, an
Addendum to this Lease shall be executed setting
forth the actual gross
leasable square footage of the Premises.
(d)
Beginning with the first Lease Year, the Tenant shall pay to
the
Landlord, in addition to the
minimum rental, an annual percentage rent in the
amount, if any, by which the
Tenant's "Gross Sales" (as hereinafter defined)
during each Lease Year,
multiplied by two percent (2%), exceed the "Sales Base"
for such Lease Year. The
Sales Base for any Lease Year shall equal (i) the base
rent payable for such Lease
Year divided by (ii) two (2%) percent. The annual
percentage rent shall be paid
by the Tenant to the Landlord within sixty (60)
days after the end of each
Lease Year. Each such payment shall be accompanied by
a statement signed by an
authorized representative of the Tenant setting forth
the Tenant's Gross Sales for
each Lease Year. For purposes of permitting
verification by the Landlord
of the Gross Sales reported by the Tenant, the
Landlord shall have the
right, upon not less than five (5) days notice to the
Tenant, to audit the Tenant's
books and records relating to the Gross Sales for
a period of two (2) years
after the end of each Lease Year. If such an audit
reveals that the Tenant has
understated its Gross Sales by more than three
percent (3%), the Tenant, in
addition to paying the additional percentage rent
due, shall pay the cost of
the audit.
Within
thirty (30) days after the end of each month during the
term
hereof, the Tenant shall
deliver to the Landlord a statement signed by an
authorized representative of
the Tenant setting forth the Gross Sales during
such month.
"Gross
Sales" shall mean the aggregate amount, expressed in dollars,
of
all sales of goods, whether
made in full or discount prices or for cash or
credit, made in, on, or from
the Premises by the Tenant, provided, however, that
the following shall be
excluded from Gross Sales: (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 the
Tenant's business; (iv) sales
of fixtures, furniture and equipment not made in
the ordinary course of
business; (v) sales of cigarettes and other tobacco
products; (vi) discount sales
made to employees of the Tenant and the Tenant's
subsidiaries and affiliated
corporations, if any; (vii) exchanges of merchandise
between the Tenant's
warehouse or other stores and other similar movements of
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 amounts and discount payments for credit
card charges; (xii) delivery
charges; (xiii) finance charges paid directly to
Tenant (which shall not
include credit card fees); (xiv) customer credit
insurance; (xv) extended
product warranty fees.
5. Taxes.
(a) "Real
Estate Taxes" means all general and special real estate
taxes,
special assessments and other
ad valorem taxes, rates, levies and assessments
paid upon or with respect to
the Premises, or, if the Premises is not separately
assessed for such purposes,
the tax parcels comprising the Center, for a
calendar year or portion
thereof to any governmental agency or authority and all
taxes specifically imposed in
lieu of any such taxes. Nothing contained in this
Lease shall require the
Tenant to pay any franchise, corporate, estate,
inheritance, succession,
capital levy, business or transfer tax of the Landlord,
or any income, profits, gross
receipts or renewal tax.
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(b) Except
as provided in subparagraph (c) below, the Landlord shall
pay,
as and when they become due,
all Real Estate Taxes payable upon or with respect
to the Center. The Landlord
shall pay or cause the payment of all Real Estate
Taxes before any fine,
penalty, interest or cost may be added thereto, become
due or be imposed by
operation of law for the nonpayment or late payment
thereof. Should the Landlord
fail to pay such Real Estate Taxes or any part
thereof, the Tenant shall
have the right, at its sole election, after written
notice to the Landlord in
accordance with paragraph 35, to cure such failure by
payment of the Real Estate
Taxes and any interest and penalties due thereon and
may deduct the cost thereof,
plus interest at the rate of ten percent (10%) per
annum (the "Default Rate"),
from the next installment(s) of base rent and other
charges due hereunder. In no
event shall the Tenant be liable for any discount
forfeited or penalty incurred
as a result of late payment by another tenant. The
Landlord shall remain
primarily responsible for such payment of Real Estate
Taxes notwithstanding the
fact that such payment may be made by a tenant of the
Center or other third party
pursuant to an agreement to which the Tenant is not
a party.
(c) If the
Premises are separately assessed for Real Estate Taxes,
the
Tenant shall pay, within
thirty (30) days after invoice thereof (but not more
than forty-five (45) days
prior to the due date thereof), all Real Estate Taxes
payable upon or with respect
to the Premises. Should the Tenant fail to pay such
Real Estate Taxes or any part
thereof within thirty (30) days after invoice
therefor (but not more than
forty-five (45) days prior to the due date thereof),
the Landlord shall have the
right, at its sole election, after written notice to
the Tenant in accordance with
paragraph 26, to cure such failure by payment of
such Red Estate Taxes. Any
such amount(s) paid by the Landlord shall constitute
additional rent due hereunder
and shall bear interest at the Default Rate until
the Landlord is reimbursed
for such amounts. Tenant shall only be liable for
interest and penalties
thereon to the extent arising after such thirty (30) day
payment period but prior to
the payment of such Real Estate Taxes by Tenant to
Landlord.
(d) If the
Premises are not separately assessed for Real Estate Taxes,
the
Tenant shall reimburse the
Landlord for the Tenant's pro rata share of the Real
Estate Taxes payable upon or
with respect to the Center exclusive of any
penalties or late charges
within thirty (30) days after the Tenant's receipt of
the Landlord's statement
therefor (but not more than forty-five (45) days prior
to the due date thereof),
accompanied by the tax bill on which such statement is
rendered. The Tenant's pro
rata share of the Real Estate Taxes shall be
calculated by multiplying the
total tax assessed, net of any early payment
discounts available from the
taxing authority at the time the Tenant's payment
is due, by a fraction, the
numerator of which is the gross leasable square
footage of the Premises and
the denominator of which is the total gross leasable
square footage of all
buildings in the Center. Changes in applicable floor
areas
in the Premises or in the
Center shall result in corresponding pro rata
adjustments. Real Estate
Taxes shall be prorated as of the Rent Commencement
Date and the expiration or
earlier termination of this Lease, and, if
applicable, the Landlord
shall promptly return to the Tenant any overpayment
made by the
Tenant.
(e)
Landlord shall deliver to Tenant copies of all notices of
proposed
increases in Taxes or
proposed revaluation of any property that is included in
the calculation of Tenant's
proportionate share of Taxes in time to permit:
Tenant to contest such
proposed increases or revaluation. If the Tenant
disputes
the amounts of any Real
Estate Taxes, it may contest and defend, and conduct any
necessary proceedings to
avoid, such disputed taxes or assessments, and the
Landlord shall cooperate with
the Tenant in contesting the validity or amount
of such taxes, including
joining in the signing of any protests or pleadings
that the Tenant may deem
reasonably advisable to file. Any rebate made on
account of any Real Estate
Taxes attributable to the Premises shall belong to,
and be paid to, the Tenant.
During any such contest, the Tenant agrees to
prevent any public sale,
foreclosure or any divesting thereby of the Landlord's
title to the
Premises.
(f) Any
special assessments for benefits on or to the Center
installed
following the Commencement
Date shall be included in Real Estate Taxes.
(Predevelopment and
development assessments and impact fees shall not be
included in Real Estate Taxes
or in other pro rata charges to Tenant.) Landlord
agrees to elect the longest
period available under law for payment of such
assessments. Landlord agrees
that such assessments shall be amortized to Tenant
over a term not less than ten
(10) years, and that any unamortized assessment
remaining at the end of the
Lease term shall be borne by Landlord. If special
assessments are permitted to
be paid in
4
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installments, and if the
payment of such installments are permitted to be paid
over a period in excess of
ten (10) years, then there shall be included in Real
Estate Taxes for any fiscal
year only the amount of the installment of such
assessment that would result
had Landlord elected to pay such assessment over
the maximum number of
installments permitted by law to be paid without
interest
or penalties. Such
installments shall be in lieu of amortizing. Landlord
will
not submit improvements to a
special improvements district without Tenant's
prior written consent unless
such submission shall not result in any charges to
Tenant for such
improvements.
6.
Utilities. The Tenant shall pay all utility charges and
deposits
required to establish
accounts for gas, heat, light, water, sewer,
electricity,
garbage and other utility use
services supplied to the Premises during the term
of this Lease. The Premises
shall be separately metered by Landlord for such
charges. In the event of any
assignment or subletting of a portion of the
Premises by the Tenant then,
at the Tenant's option, such assignment or
subletting shall provide that
either (i) such portion of the Premises shall be
separately metered for such
charges or (ii) the subtenant or assignee shall be
required to pay its pro rata
share of such expenses (which pro rata share shall
be the amount of such costs
multiplied by a fraction, the numerator of which
shall be the number of gross
leasable square feet in that portion of the
Premises that is assigned or
sublet, and the denominator of which shall be the
gross leasable square footage
of the Premises).
7. Use.
The Tenant
shall have the right to use the Premises for any retail
purpose
excluding only those uses set
forth in Exhibit "C", attached hereto and made a
part hereof (but only for so
long as they remain in effect and have not been
otherwise waived in writing
by the parties benefited thereby). The Landlord
represents and warrants to
the Tenant that the Premises are properly zoned for
Tenant's stated use and that
all use restrictions are set forth in Exhibit "C"
hereof and that the Tenant's
use of the Premises as a off price department
store does not violate any
such use restrictions. The Tenant shall not permit or
suffer the use of the
Premises for any unlawful purpose.
8.
Landlord and Tenant's Work. The Landlord agrees to provide, at
its
expense, the improvements to
the Premises described on Exhibit "D", attached
hereto and made a part hereof
(the "Landlord's Work"). If the Landlord does not
commence construction of the
Landlord's Work on or before July 1, 1994 (time
being of the essence) or if
the Landlord's Work shall not be substantially
completed on or before
December 31, 1994 (time being of the essence) the Tenant
shall have the right, at its
election, to either (i) cancel and terminate this
Lease, or (ii) continue the
Lease in which event the annual rent due hereunder
shall be adjusted so that,
after the Rent Commencement Date, the Tenant shall
receive two (2) days free
rent for each day the substantial completion of the
Premises is delayed. The
Landlord's Work shall be deemed "substantially
completed" when all of the
Landlord's Work has been completed except for punch
list items that do not affect
the Tenant's use or the appearance of the
Premises. The Tenant agrees
to provide, at its expense, after the completion of
Landlord's Work, the
improvements to the Premises described on Exhibit "E",
attached hereto and made a
part hereof (the "Tenant's Work"). The Landlord's
Work and the Tenant's Work
shall be done 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 shall be in
compliance with all
applicable building codes, laws, ordinances and
regulations.
The plans and specifications
delivered for approval to the Tenant and the
Landlord, as applicable,
shall be deemed approved if not approved or otherwise
acted upon within fifteen
(15) days following receipt of such plans and
specifications. The Landlord
and the Tenant shall obtain, at their own expense,
all necessary building
permits for their respective work.
9. Tenant
Alterations and Improvements. The Tenant may, from time to
time,
make or cause to be made any
interior nonstructural alterations, additions or
improvements to the Premises
without the Landlord's consent. The construction of
interior demising walls and
interior doors shall be deemed nonstructural. The
Tenant may make interior
structural and exterior alterations, additions or
improvements to the Premises
only with the Landlord's prior written consent,
which consent shall not be
unreasonably withheld or delayed. Any request to make
such interior structural or
external alterations, additions or improvements
shall be deemed approved
if
5
<PAGE>
not approved or otherwise
acted upon within fifteen (15) days following request
for such approval. The
Landlord agrees to execute and deliver upon the Tenant's
request any instrument or
instruments which may be required by any public or
quasi-public authority for
the purpose of obtaining any license or permit for
the making of such
alterations or improvements.
10.
Landlord's Additional Covenants.
(a)
Covenant Against Certain Use;. To the full extent permitted by
law
and as a condition and
inducement to Tenant to enter into this Lease, Landlord
agrees that Landlord will not
lease, rent, occupy or permit to be occupied any
premises in the Center (and
any enlargement or expansion thereof) to be used for
the operation of a bingo
parlor, bar, tavern, cocktail lounge, restaurant, 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), automotive maintenance or automotive repair
facility, warehouse, car
wash, pawn shop, check cashing service, establishment
selling second hand goods, or
flea market, entertainment or recreational
facility (including bowling
alley) or training or educational facility; for the
renting, leasing or selling
or displaying therefore of any boat, motor vehicle
or trailer; or for industrial
purposes. For the purpose hereof, 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, billiard
or pool hall, massage parlor, health club, game
parlor or bingo parlor or
video arcade (which shall be defined as any store
containing more than five (5)
electronic games). The phrase "training or
educational facility" shall
include, without limitation, a beauty school, barber
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 a restaurant
provided that Landlord
complies with the restrictions set forth hereunder in
this Section 10.
Notwithstanding anything to the contrary contained in
this
Lease, no part of the Center
within four hundred feet (400') of Tenant's
Building shall be used as a
restaurant (except that one restaurant, sit down
type, not to exceed 2,500
square feet shall be permitted, provided, however, any
such restaurant use shall not
offer liquor, beer or wine for sale).
(b)
Landlord further agrees that Tenant shall have the right to
approve
any changes in use or other
alterations to any building within one hundred (100)
feet of the
Premises.
(c)
Landlord acknowledges that in the event of a breach or an attempted
or
prospective breach hereof by
Landlord, 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, to cancel this Lease on thirty (30) days written
notice to Landlord and/or to
full and adequate relief by temporary and permanent
injunction; provided that the
remedy of lease cancellation shall not be
applicable if the violation
of this Section 10 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.
11.
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. 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. 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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<PAGE>
12.
Signs.
(a)
Announcements. Landlord agrees, upon execution of this Lease,
to
erect, at Landlord's expense,
a sign on the Premises. Such sign shall be a
minimum of four feet (4') by
eight feet (8') and visible to the public, as set
forth on Exhibit "F" attached
hereto and made a part hereof.
(b) Pylon
and Building Signs. Landlord shall, at its sole cost and
expense, construct, erect and
maintain at the location shown on the Site Plan,
pylon signs upon which
Tenant's advertising panel shall be installed, and
thereafter throughout the
Term of the Lease, Tenant shall have continuous
representation on the pylon
sign(s) and Building sign and any replacement pylon
sign in the same position and
size as shown on Exhibit "A". Landlord hereby
approves the color of
Tenant's advertising panel for the pylon signs, which
shall be consistent with all
Value City Department Store signs through out the
chain. The dimensions and
structure of the pylon sign, as well as the size of
Tenant's advertising panel
and its placement in relation to other panels on the
pylon signs shall be approved
by Tenant, in accordance with Tenant's sign
requirements as identified on
Exhibit "F". Tenant shall have the right to
install its standard signs on
the exterior of the Premises, as described on
Exhibit "F" attached hereto.
Landlord agrees to provide an adequate building
facia for Tenant's
signs.
(c)
Maintenance. Tenant agrees to maintain said advertising panel
and
exterior building signs in a
good state of repair, save the Landlord harmless
from maintenance or removal
of such signs, provided that at the end of this
Term, the Tenant agrees to
remove the same and repair any damages caused
thereby.
(d) Interior Signage. Tenant shall
also have the right to place signs or
banners in the windows of the
Premises, provided same are professionally done.
(e)
Removal. Landlord agrees that at or before the time for surrender
of
the Premises to Landlord,
said Tenant may remove all the trade fixtures and
signs and all other personal
property owned by Tenant in accordance with Section
17 herein.
13.
Assignment and Subletting. Tenant shall have the right, without
the
consent of the Landlord, (i)
to grant licenses and/or concessions with the
Premises, and (ii) to assign
this Lease or sublet all or any portion of the
Premises to a parent,
subsidiary or affiliate corporation of the Tenant or to
a
successor by merger,
acquisition or consolidation of the Tenant, its parent
or
subsidiary or to a
corporation acquiring all or substantially all of the
assets
of the Tenant, its parent or
subsidiary; provided, however that Tenant shall
remain fully liable
hereunder. Notwithstanding the foregoing, Tenant shall
be
released from all further
liability hereunder in the event such assignee (i) has
a net worth of at least Ten
Million Dollars ($10,000,000.00), and (ii) has
sufficient business
experience and a good business reputation.
Tenant
shall have the right, without the consent of Landlord, to
assign
this Lease or sublet the
Premises to any party or entity other than set forth in
the immediately preceding
paragraph, so long as (i) such proposed use does not
violate any exclusive in the
Center, (ii) such use is consistent with the
general character of the
Center, and (iii) the proposed assignee or subtenant
has sufficient business
experience and a good business reputation. In all other
cases, Tenant may assign or
sublet upon obtaining the prior written consent of
Landlord, which consent shall
not be unreasonably withheld or delayed. Tenant
shall remain liable hereunder
unless such assignee or subtenant has a net worth
greater than that of Tenant
at the time of such proposed assignment or
subletting.
14.
Maintenance.
(a) The
Tenant shall maintain at its expense the interior of the
Premises,
including the doors and
windows therein, in good condition and repair. The
Tenant shall repair defective
work performed as part of the Tenant's Work but
shall have no obligation to
repair any defective work performed by the Landlord
as part of the Landlord's
Work.
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(b) Tenant
shall have the right to make alterations or additions to
the
Premises at its sole cost and
expense provided, nevertheless, that any such
alterations or additions
shall be of good workmanship and material and shall not
reduce the size and strength
of the then existing improvements. Tenant shall not
be required to remove any
such additions or alterations or to restore the
Premises to their original
condition at the termination of tenancy hereunder.
The Landlord hereby covenants
and agrees to join with Tenant in applying for and
securing from any
governmental authority having jurisdiction thereof, any
permits or licenses which may
be necessary in connection with the making of any
alterations, additions,
changes or repairs and the Landlord agrees, upon request
by the Tenant, to execute or
join in the execution of any application for such
licenses and
permits.
(c) The
Landlord hereby assigns to the Tenant all manufacturers' and
other
warranties applicable to that
portion of the Premises and the equipment and
systems therein that the
Tenant is obligated to maintain.
15. Common
Area Maintenance.
(a) From
and after the Commencement Date, Landlord, at its cost
and
expense, shall maintain the
Common Areas and the Center clean and in good repair
so that Tenant and its
customers, guests, invitees, officers and employees can
use and enjoy the same. The
obligation of Landlord pursuant hereto shall
include, but not be limited
to, the management and maintenance of the Center and
the pylon structure of
Tenant's identification sign (if the same is affixed to
a
pylon sign used in common
with Landlord or other tenants in the Center, but not
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 is impeded, employing
traffic control personnel (such as off-duty police
personnel), and periodically
restriping the parking area. Landlord covenants
that such maintenance and
repair shall be planned and preventative maintenance
undertaken in order to
maintain the Common Areas in good usable condition so as
to avoid breakdown of
maintenance and avoidable costly repairs. Landlord shall
not in any manner change the
size, location, nature, design or use of the Common
Areas as shown on the Site
Plan without the prior written consent of Tenant,
which shall not be
unreasonably withheld unless the proposed change would
involve additional buildings
of any kind or reduce the number of parking spaces,
or otherwise materially and
adversely affect the access to or visibility of the
Premises, in any of which
cases Tenant's approval may be withheld in its sole
discretion.
(b) The
Tenant shall reimburse the Landlord for its proportionate share
of
the Landlord's "Common Area
Maintenance Costs" (as hereinafter defined).
(c) As
used herein, the term "Common Area Maintenance Costs" means
all
reasonable costs actually
paid by the Landlord for maintaining and repairing the
Common Areas. The following
items shall be specifically excluded from Common
Area Maintenance Costs: (i)
depreciation on maintenance equipment; (ii) all Real
Estate Taxes; (iii) financing
costs, including, but not limited to, any and all
of Landlord's payments for
(1) loan principal or interest, together with
expenses, thereto related in
connection with such financing or any refinancing
during the term of this
Lease, (2) ground lease rent, or (3) similar payments;
(iv) salaries of Landlord's
employees or agents contracted through outside
services or employed by
Landlord who are not exclusively engaged in the
day-to-day maintenance of the
Center; (v) profit or mark-up; (vi) maintenance,
repairs, services or
improvements on the buildings or other tenant premises,
except that periodic painting
of the exterior of the buildings shall be an
allowable expense; (vii)
costs of outside management services; (viii) Merchants
Association costs; (ix)
Center advertising, promotions and promotional
materials; (x) remodeling of
the Center, or any costs for renovation or
improvement to the Common
Areas required as a result of other tenants within the
Center remodeling, adding an
addition or renovating; (xi) enforcement costs -
any and all of Landlord's
costs to compel full performance under leases with all
prior, existing, and
prospective tenants at
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the Center, including,
without limitation all legal fees, costs and expenses to
collect rental arrearages and
recover possession, or legal fees and expenses;
(xii) leasing costs - any and
all of Landlord's costs of leasing space in the
Center to all prior, existing
and prospective tenants, including, without
limitation, consulting and
marketing fees, advertising expenses, brokerage
commissions, legal fees,
vacancy costs, rent or other rent concessions, and/or
refurbishment or improvement
expenses; (xiii) capital costs - any and all of the
Landlord's capital costs,
improvements, alterations, repairs and/or replacements
(including redesign and
retrofitting of existing capital improvements) to any
part of the Center including,
but not limited to, resurfacing and/or replacement
of paving; (xiv) parking
garage facilities - any and all of Landlord's expenses
relating to any parking
garage facility or facilities on or about the property
or comprising a part of the
Center; (xv) any improvement or construction charge
which would normally be
and/or should have been in the original construction of
the Center and any repairs or
replacements to the interior or exterior which are
required because of defective
or faulty installation, materials, design or other
latent defects; (xvi) utility
service and/or service lines (for any utility
service) repair, replacement,
addition or maintenance charge except for those
utility service and lines
within
