Exhibit 10.2
LEASE
THIS LEASE (“Lease”) is
made as of this 29 th day of June, 2005, and is effective
as of May 7, 2005, between AMSDELL AND AMSDELL, an Ohio general
partnership (“Landlord”) and U-Store-It, L.P., a
Delaware Limited Partnership (“Tenant”).
ARTICLE I
PREMISES, TERM AND
USE
1.1 Premises . In
consideration of the rents, covenants and agreements herein
contained, Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the premises (“Premises”)
containing approximately One Thousand Three Hundred Thirty Nine
(1,339) square feet of Usable Space (as hereinafter defined) and
approximately One Thousand Five Hundred Eighty Eight (1,588) square
feet of Rentable Space (as hereinafter defined), and known as Suite
“120” located in a building (“Building”)
known as The Parkview Building, 6745 Engle Road, Middleburg
Heights, Cuyahoga County, Ohio 44130, as further described on
Exhibit A-1 attached hereto and made a part hereof. As used
herein, “Landlord’s Property” means the real
property described on Exhibit A and all improvements now or
hereafter constructed thereon.
1.2 Common Areas . Landlord
hereby grants to Tenant a non-exclusive license to use, in common
with all others to whom Landlord has or may hereafter grant such
license, the Common Areas (as hereinafter defined) located on
Landlord’s Property. “Common Areas” means the
parking areas, roadways, pedestrian sidewalks, delivery areas,
landscaped areas and all other areas or improvements designated by
Landlord, from time to time, for the common use of the tenants or
occupants of Landlord’s Property. Tenant shall keep the
Common Areas free and clear of litter, trash and debris resulting
from or attributable to Tenant’s operation from the Premises
and shall cause its employees to park only in the portion of the
Common Areas specifically designated by Landlord for parking.
Parking shall not be permitted on Landlord’s Property for
more than twenty-four (24) consecutive hours or on any public or
private street adjacent to Landlord’s Property. Tenant shall
not obstruct, interfere with or impede the use of the Common Areas.
Landlord reserves the right, with respect to the Common Areas and
Landlord’s Property, to (a) establish rules and regulations
for the use thereof; (b) temporarily close all or any portion
thereof as Landlord deems necessary to prevent the dedication
thereof or the accrual of any rights to any person or to the public
therein; (c) increase, diminish, change or reconfigure the layout
of the Common Areas and to rent portions thereof; (d) install,
place upon or affix to the roof over the Premises and the exterior
walls of the Premises, such equipment, signs, displays, antennas
and other objects or structures of any kind as Landlord may desire;
and (e) increase, decrease, reconfigure and/or add to
Landlord’s Property. Landlord shall maintain the Common Areas
in good condition and repair and reasonably clear of snow and
debris.
1.3 Term . Subject to Section
3.2(a) hereof, the term of this Lease shall be six (6) days less
than two (2) years commencing on May 7, 2005 (“Commencement
Date”) and ending on April 30, 2007.
1.4 Option to Extend .
Provided Tenant is not in default hereunder at the time of the
exercise of the option to extend and/or at the commencement of the
extension term, as the case may be, Landlord hereby grants Tenant
one (1) option to extend this Lease for three (3) years upon the
same terms and conditions contained herein, except that there shall
be no further options to extend this Lease and Fixed Minimum Rent
(as hereinafter defined) shall be established pursuant to Section
2.1(b) hereof. To exercise an option to extend, Tenant shall give
Landlord written notice of Tenant’s election to do so at
least six (6) months prior to the expiration of the original
term.
1.5 Use . Tenant shall use
the Premises for only the following use and purpose: general office
purposes. Contemporaneously with the execution of this Lease,
Tenant shall provide Landlord with a letter in the form of
Exhibit B attached hereto and made a part hereof. Tenant
acknowledges that Tenant has determined and verified
that such use is permitted by applicable zoning
and other laws. Landlord will obtain an occupancy permit from the
City of Middleburg Heights for Tenant’s use of the Premises.
Tenant shall use and occupy the Premises in a safe and careful
manner, without committing or permitting waste, and Tenant shall,
at Tenant’s sole cost and expense, conform to and obey all
laws, ordinances, rules, regulations and orders of any governmental
bodies having jurisdiction over the Premises applicable to the use
and occupancy of the Premises and any repairs or work performed on
the Premises by Tenant or at the request of Tenant. If
Tenant’s activities on the Premises produce gases, vapors,
odors, smoke or residuary material disturbing to Landlord or other
tenants or occupants of Landlord’s Property, then upon
Landlord’s request, Tenant shall immediately cease such
activity or install ventilating or other equipment sufficient, in
Landlord’s reasonable judgment, to eliminate the disturbance.
If Tenant’s use of the Premises increases the cost of
Landlord’s Insurance (as hereinafter defined) with respect to
Landlord’s Property or the cost of insurance for any other
tenant of Landlord’s Property, then Tenant shall reimburse
Landlord or such other tenant, as the case may be, for such
additional cost upon demand. Tenant shall not display or store any
merchandise outside of the Premises or in any way obstruct the
sidewalks adjacent thereto, or burn or place garbage, rubbish,
trash, merchandise, containers or any other items outside of the
Premises, except in suitable containers therefor in the areas
designated for rubbish removal by Landlord. Unless Landlord
provides rubbish removal services, in which event Tenant shall
reimburse Landlord for the cost thereof within ten (10) days after
demand, Tenant shall, at its sole cost and expense, provide for the
removal of its rubbish as and when necessary as required to keep
the Premises in a clean, safe and healthy condition, but in any
event at least one (1) time per week. If Tenant fails to provide
for the removal of its rubbish, then Landlord may cause the same to
be removed and Tenant shall reimburse Landlord for the cost thereof
immediately upon demand. Tenant will not permit the Premises to be
vacant or abandoned or be used in any way which may be a nuisance,
annoyance or inconvenience or which may result in damage to
Landlord or other tenants of Landlord’s Property.
1.6 Hazardous Materials .
Tenant shall not cause or permit any Hazardous Material (as
hereinafter defined) to be brought upon, kept or used in or about
the Premises or any other portion of Landlord’s Property.
“Hazardous Material” means any substance or waste
containing hazardous substances, pollutants or contaminants as
those terms are defined in the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. § 9601
et seq., and any other substance similarly defined or
identified in any other federal, state or local law, rule or
regulation governing the manufacture, import, use, handling,
storage, processing, release or disposal of substances or wastes
deemed hazardous, toxic, dangerous or injurious to public health or
to the environment. Hazardous Material also includes, without
limitation, asbestos, asbestos-containing materials, petroleum or
petroleum-based products, lead-based products, polychlorinated
biphenyls (PCB’s), infectious wastes and radon.
1.7 “ Usable Space”
Defined . As used in this Lease the term “Usable
Space” measures the actual occupiable area of the Premises
and shall mean (x) the area as computed by measuring the inside
finished surface of the dominant portion of the permanent outer
walls of the Building, the finished surface of the office side of
corridors and other permanent walls which separate the Premises
from the Building core or public corridor or common area, and the
center line of any partition which separates the Premises from
adjoining premises. No deductions shall be made for space occupied
by structural or functional columns and projections and (y) with
respect to the Building, the aggregate of the usable area of all
space in the Building being offered by lease by Landlord as
determined in accordance with the aforedescribed method of
measurement.
1.8 “Rentable Space”
Defined . “Rentable Space” means the area of the
Premises measured from the inside face of the glass in the exterior
walls of the Building, the inside face of the surface of walls
facing the Building core or a public corridor or common area and
the center line of any partition that separates the Premises from
adjoining tenant spaces together with (i) a portion of the Building
outside of the Premises including the common or public areas and
(ii) spaces occupied by structural or functional columns and
projections.
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ARTICLE II
RENT, OPERATING COSTS, OTHER
CHARGES AND SECURITY DEPOSIT
2.1 Fixed Minimum Rent
.
(a) Tenant shall pay to Landlord,
without deduction, set-off or demand, as Fixed Minimum Rent
(“Fixed Minimum Rent”) the following:
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(i)
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Subject to the
provisions of Section 2.8 of this Lease, for the period from May 7,
2005 to April 30, 2006, the sum of Twenty One Thousand Six Hundred
and 00/100ths Dollars ($21,600.00) per annum [One Thousand Eight
Hundred and 00/100ths Dollars ($1,800.00) per month], except that
for the partial month of May 7, 2005 to May 31, 2005 the prorated
amount shall be One Thousand Four Hundred Fifty-One and 61/100
Dollars ($1,451.61).
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(ii)
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For the period
from May 1, 2006 to April 30, 2007, the sum of Twenty Two Thousand
Eight Hundred and 00/100ths Dollars ($22,800.00) per annum [One
Thousand Nine Hundred and 00/100ths Dollars ($1,900.00) per
month].
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Monthly installments of Fixed
Minimum Rent shall be payable to Landlord at the address of
Landlord set forth in Section 8.11 hereof or at such other address
as Landlord may, from time to time, direct. Each installment of
Fixed Minimum Rent shall be due and payable in advance on the first
day of each month during the term hereof except that the first
month’s Fixed Minimum Rent shall be due and payable upon the
execution of this Lease by Tenant. If Tenant occupies the Premises
prior to the Commencement Date or for any partial month, then the
Fixed Minimum Rent and all other charges hereunder for such period
of occupancy prior to the Commencement Date or for such partial
month shall be prorated on a daily basis based on a thirty (30) day
month.
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For Period
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Monthly Fixed
Minimum Rent for
Premises
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Monthly Payment for
Tenant’s Proportionate
Share of C.A.M.
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Total Monthly
Payment
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May 7, 2005 to May 31, 2005
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$
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1,451.61
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$
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0.00
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$
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1,451.61
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June 1, 2005 to April 30, 2006
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$
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1,800.00
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$
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0.00
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$
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1,800.00
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May 1, 2006 to April 30, 2007
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$
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1,900.00
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$
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0.00
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$
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1,900.00
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(b) If Tenant timely exercises an
option to extend pursuant to Section 1.4 hereof, then the Fixed
Minimum Rent payable by Tenant during the renewal term shall be at
the then prevailing market rates.
2.2 Common Area Maintenance
Charges . The Fixed Minimum Rent payable hereunder includes
Tenant’s Proportionate Share (as hereinafter defined) of all
costs and expenses associated with Common Area Maintenance Charges
(“C.A.M.”) incurred by Landlord during the calendar
year 2004 (“Base Year”) in connection with the
ownership, management, maintenance, repair and operation of
Landlord’s Property, including, without limitation, a
heating, ventilating and air-conditioning annual service agreement;
maintaining, repairing, replacing, striping and sweeping parking
lots, driveways and private roads, loading areas and easement
areas; all electricity, sewer, water and other utility costs in
connection with the Common Areas not separately metered to tenants;
sewer and water usage for the Premises; landscape maintenance and
replacement, snow removal; dumpster service; costs and expenses
incurred by Landlord in protesting Taxes (as hereinafter defined),
and all other items reasonably necessary for the operation or
preservation of Landlord’s Property in a first-class
condition, including any replacement or structural reserves; the
cost of providing the fire monitoring for the Premises as provided
by Silent Security Signal, a Division of Cleveland Security Patrol;
and an administration fee equal to seven and one-half percent
(7.5%) of the foregoing costs. In the event that the
Landlord’s costs and expenses associated with C.A.M. exceeds
the amount payable during the Base Year, then in such event, Tenant
shall pay to Landlord in equal monthly installments, in advance
with payments of Fixed Minimum Rent, an amount equal to one-twelfth
(1/12 th ) of the estimated amount of
Tenant’s Proportionate Share of C.A.M.
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2.3 Utilities . The Fixed
Minimum Rent payable hereunder includes all electricity, gas and
any other utilities furnished to the Premises during the term
hereof. Landlord shall have no liability to Tenant or any other
party for any interruption in utility services or for the failure
to furnish same. Notwithstanding the foregoing, Tenant shall be
responsible for the payment of all electric charges for lights and
outlets at the Premises.
2.4 Taxes and Assessments .
The Fixed Minimum Rent payable hereunder includes Tenant’s
Proportionate Share of all real estate taxes or assessments, both
general and special (collectively, “Taxes”), levied
upon the Property during the calendar year 2004 (“Base
Year”) based upon an amount of One and 45/100ths Dollars
($1.45) per square foot per annum. In the event that the amount of
Taxes payable during the term of this Lease exceed the amount of
Taxes payable during the Base Year, then in such event Tenant shall
pay to Landlord in equal monthly installments, in advance with
payments of fixed minimum rent, an amount equal to one-twelfth
(1/12) of the estimated amount of Tenant’s Proportionate
Share of Taxes. Within thirty (30) days after the actual amount of
Tenant’s Proportionate Share of Taxes has been determined by
Landlord, based on the actual Taxes, Landlord shall notify Tenant
and Tenant shall pay to Landlord or Landlord shall credit to
Tenant’s account for future payments of Taxes, as the case
may be, the difference between the estimated amount of
Tenant’s Proportionate Share of Taxes theretofore paid to
Landlord for such year and the actual amount of Tenant’s
Proportionate Share of Taxes for such year. In addition to
Tenant’s Proportionate Share of Taxes, Tenant shall also
reimburse Landlord, immediately upon demand, for the full amount of
any increases in Taxes resulting from alterations or improvements
to the Premises made by or for the benefit of Tenant. If any
governmental taxing authority acting under any present or future
law, ordinance or regulation shall levy, assess or impose a tax,
excise and/or assessment (other than an income or franchise tax)
upon Tenant for the rental payable by Tenant to Landlord pursuant
to this Lease, either by way of substitution for or in addition to
any existing tax on land, buildings or otherwise, then Tenant shall
be responsible for and shall pay such tax, excise and/or
assessment, or shall reimburse Landlord for the cost thereof, as
the case may be, immediately upon demand. The amount payable by
Tenant pursuant to this Section 2.4 for the year in which this
Lease commences or terminates shall be prorated based on the ratio
of that portion of the term of this Lease to the applicable tax
year. If the amount of Taxes payable by Landlord with respect to
Landlord’s Property for the Base Year includes any special
assessments (in any case, “Assessment”) that expire at
any time during the term of this Lease, then, at such time as the
applicable portion of the Assessment is paid in full, the amount of
Taxes for the Base Year shall be recalculated to exclude the amount
of the applicable portion of the Assessment that was paid in full.
Commencing as of the year of such recalculation of Taxes for the
Base Year and continuing for each and every year or fraction
thereof during the term of this Lease following the new
calculation, or until such time as Taxes for the Base Year are
again recalculated, Tenant shall pay to Landlord Tenant’s
Proportionate Share of any increase in Taxes based upon the
adjusted Base Year amount. For purposes of this Section 2.4 and
Sections 2.2 and 2.5 of this Lease, “Tenant’s
Proportionate Share” means the percentage determined by
dividing the number of square feet of floor area in the Premises by
the total square feet of net leasable floor area from time to time
contained in the buildings on Landlord’s Property. As of the
date hereof, Tenant’s Proportionate Share is 3.37%. Tenant
shall also pay to the applicable taxing authority when due any
taxes or assessments levied against the personal property or trade
fixtures brought to or installed at the Premises by or on behalf of
Tenant.
2.5 Landlord’s
Insurance . The Fixed Minimum Rent payable hereunder includes
Tenant’s Proportionate Share of all costs and expenses
incurred by Landlord for insurance (“Landlord’s
Insurance”) covering or relating to the Property or the
operation thereof, including, without limitation, casualty,
liability, worker’s compensation and rental insurance, during
the term of this Lease in excess of the costs and expenses of
Landlord’s Insurance during the Base Year. Tenant shall pay
to Landlord in equal monthly installments, in advance and together
with payments of Fixed Minimum Rent, an amount equal to one-twelfth
(1/12) of the estimated amount of Tenant’s Proportionate
Share of all costs and expenses incurred by Landlord for insurance
(“Landlord’s Insurance”) covering or relating to
Landlord’s Property or the operation thereof, including,
without limitation, casualty, liability, worker’s
compensation and rental insurance, during the term of this Lease in
excess of the costs and expenses of Landlord’s Insurance
during the Base Year based upon an amount of Zero and 11/100ths
Dollars ($0.11) per square foot per annum. Within thirty (30) days
after the actual amount of Tenant’s Proportionate Share of
Landlord’s Insurance has been determined by Landlord, based
on the actual cost and expense of
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Landlord’s Insurance, Landlord shall so
notify Tenant and Tenant shall pay to Landlord or Landlord shall
credit to Tenant’s account for future payments of
Landlord’s Insurance, as the case may be, the difference
between the estimated amount of Tenant’s Proportionate Share
of Landlord’s Insurance theretofore paid to Landlord for such
year and the actual amount of Tenant’s Proportionate Share of
Landlord’s Insurance for such year. The amount payable by
Tenant pursuant to this Section 2.5 for the year in which this
Lease commences or terminates shall be prorated based on the number
of days in such partial year.
2.6 Late Charge and Default
Interest . Notwithstanding anything in this Lease to the
contrary, if Tenant fails to pay the Fixed Minimum Rent or any
other charges due hereunder within five (5) days after due, then,
in addition to and not in lieu of any other right or remedy
available to Landlord, Tenant shall pay to Landlord a late charge
from the original due date until paid in full in an amount equal to
Twenty-five Dollars ($25.00) per day or one and one-half percent
(1.5%) per month, or fraction thereof, whichever is
greater.
2.7 Lease Year . The term
“Lease Year” shall mean the period of twelve (12)
months commencing on the Commencement Date and ending on the day
immediately preceding the first anniversary of the Commencement
Date and each successive period of twelve (12) months thereafter
during the term hereof.
2.8 Security Deposit .
Concurrently with the execution of this Lease, Tenant shall deposit
with Landlord the sum of Zeor and 00/100ths Dollars ($0.00)
(“Security Deposit”) as security for the full, prompt
and faithful performance by Tenant of all of its obligations
hereunder and thereafter during the continuance of this Lease shall
maintain on deposit with Landlord said sum. Landlord may, without
prejudicing any other rights or remedies set forth herein, apply
the Security Deposit, or any part thereof, toward the cost and
expense of curing any default by Tenant under this Lease (including
the payment of Landlord’s attorney’s fees), in which
event Tenant shall restore the Security Deposit to its original
amount immediately after receipt of Landlord’s written
request to do so. Within thirty (30) days following the termination
of this Lease and vacation of the Premises by Tenant in the
condition required by this Lease, the Security Deposit, or the
portion thereof remaining unapplied after the curing of every
default by Tenant, shall be returned to Tenant. No interest shall
be payable to Tenant on account of the Security Deposit.
ARTICLE III
CONSTRUCTION OF
IMPROVEMENTS
3.1 Possession . Subject to
Section 3.2(a) hereof, Tenant shall take possession of the Premises
in its “as-is” condition as of the Commencement Date,
shall not permit the Premises to be vacant during the term of this
Lease and at the end of the term of this Lease or on the earlier
termination hereof, shall deliver all keys to Landlord and leave
and deliver the Premises to Landlord broom clean and in good
condition and repair, reasonable wear and tear only excepted. All
merchandise, property, material or waste left in the Premises (or
adjacent interior or exterior areas) by Tenant after the end of the
term of this Lease or the earlier termination hereof may be
removed, stored, sold or otherwise disposed of by Landlord without
notice to Tenant or liability to Landlord and Tenant shall
reimburse Landlord for any costs incurred in connection therewith
immediately upon demand.
3.2 Construction of
Improvements .
(a) Landlord shall make the
improvements to the Premises, if any, described as Landlord’s
Work (“Landlord’s Work”) on Exhibit C
attached hereto and made a part hereof. Landlord shall use
reasonable efforts to substantially complete Landlord’s Work
on or before the Commencement Date and shall provide Tenant notice
of the occurrence thereof, but shall not be responsible for delays
due to (i) causes beyond Landlord’s reasonable control, (ii)
any act, delay or failure to act of Tenant, (iii) any changes
requested by Tenant in Landlord’s Work or any work performed
or to be performed by Tenant, (iv) the quality of performance or
completion of any work by a person, firm or corporation employed by
Tenant, (v) the work being performed by or on behalf of Tenant
which, under good construction scheduling practices should
be
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completed before portions of the
Landlord’s Work are completed, is not completed by Tenant on
schedule and/or results in delays in the completion of
Landlord’s Work, and/or (vi) any other act or omission of
Tenant, its agents, employees, or contractors, including, without
limitation, any delay in giving authorization or approvals (in any
instance, a “Tenant Delay”). Tenant shall be entitled,
as Tenant’s sole remedy, to an abatement of the Fixed Minimum
Rent otherwise due hereunder for any period following the
Commencement Date during which the Premises remain unavailable for
occupancy by Tenant because of Landlord’s failure to
substantially complete Landlord’s Work; provided, however,
that if Landlord, in Landlord’s sole judgment, is delayed in
timely substantially completing Landlord’s Work because of
any Tenant Delay, then there shall be no abatement of the Fixed
Minimum Rent for the period of such Tenant Delay. Except for the
abatement of the Fixed Minimum Rent as set forth in the previous
sentence, Tenant waives and releases any and all claims for damages
against Landlord resulting from the Premises remaining unavailable
for occupancy by Tenant due to Landlord’s failure to
substantially complete Landlord’s Work. The taking of
possession of the Premises by Tenant shall be deemed conclusively
to establish that Landlord’s Work has been completed and
accepted by Tenant.
(b) On or before the Commencement
Date, Tenant shall, at its sole cost and expense, supply all
installations and complete the improvements and other work, if any,
described as Tenant’s Work (“Tenant’s
Work”) on Exhibit C , and shall fully equip the
Premises with all trade fixtures, lighting fixtures, furniture,
furnishings, fixtures, floor coverings, signs, special equipment
and other items of construction and personal property necessary for
the completion of the Premises and the proper operating of
Tenant’s business therein.
(c) Tenant shall not undertake,
directly or indirectly, Tenant’s Work or any other
construction work, improvements or alterations (collectively,
“Alterations”), nor shall Tenant install any equipment
other than trade fixtures and personal property, in the Premises
without first obtaining Landlord’s written approval of the
plans and specifications (“Plans”) therefor. Within
thirty (30) days after the execution of this Lease, Tenant shall
submit the Plans to Landlord showing in detail the Alterations
Tenant is required or desires to undertake in the Premises. The
Plans shall be prepared at Tenant’s sole cost and expense by
an engineer or architect of recognized competence, licensed to
practice in the State of Ohio and otherwise acceptable to Landlord.
Tenant shall revise the Plans in accordance with and within seven
(7) days after receipt of Landlord’s comments. Tenant, at
Tenant’s sole cost and expense, shall obtain all building,
use and occupancy permits and licenses required by applicable
governmental authorities for the Alterations, for the use of the
Premises and for the conduct of Tenant’s business. Tenant
shall make such changes to the Plans as may be required to conform
the same to the laws and ordinances applicable to the Alterations.
Landlord’s approval of the Plans shall not constitute the
assumption of any liability on the part of Landlord for their
accuracy or conformity with building codes or any other legal
requirements.
(d) The Alterations performed at the
Premises by or on behalf of Tenant, including, without limitation,
Tenant’s Work, whether in the nature of erection,
construction, alteration or repair, shall be performed with new
materials and completed in a first-class and workmanlike manner,
promptly, efficiently and competently by duly qualified and, if
required by Landlord, licensed persons or entities, without
interference with or disruption of the operations of other tenants
or users of Landlord’s Property, and in accordance with all
applicable laws, ordinances, rules, regulations and requirements of
any governmental authority having jurisdiction over the Premises,
including, without limitation, the Americans with Disabilities Act
of 1990, as amended. Subject to Section 3.3 hereof, the Alterations
shall at once when made or installed be deemed to have attached to
the freehold estate and become the property of Landlord and, except
as otherwise provided herein, shall remain for the benefit of
Landlord at the end of the term or other termination of this Lease
in as good condition and repair as when installed, reasonable wear
and tear excepted, and Tenant shall not be entitled to any payment
or compensation therefor.
3.3 Trade Fixtures . If
Tenant is not then in default hereunder, all trade fixtures,
personal