Exhibit 10.3
LEASE
THIS LEASE (“Lease”) is
made as of this 29 th day of June, 2005, and is effective
as of May 1, 2005, between AMSDELL AND AMSDELL, an Ohio general
partnership (“Landlord”) and U-Store-lt, 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 three thousand five hundred (3,500) square
feet of total area comprised of approximately three thousand five
hundred (3,500) square feet of office space, computed on outside
dimensions, as depicted on the drawing attached hereto and made a
part hereof as Exhibit A and known as Suites “I
– J” located in a building (“Building”)
known as Building II, 6779 Engle Road, Middleburg Heights, Cuyahoga
County, Ohio 44130, as further described on Exhibit B
attached hereto and made a part hereof. As used herein,
“Landlord’s Property” means the real property
described on Exhibit B 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. Nothing herein contained shall be construed as requiring
Landlord to remove any debris, ice or snow from the sidewalks
adjoining the Premises, which shall be the responsibility of
Tenant.
1.3 Term . Subject to Section
3.2(a) hereof, the term of this Lease shall be Month-to-Month
commencing on May 1, 2005.
1.4 Use . Tenant shall use
the Premises for only the following use and purpose: general office
use. Contemporaneously with the execution of this Lease, Tenant
shall provide Landlord with a letter in the form of Exhibit
C 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.
1.5 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.
ARTICLE II
RENT, OPERATING COSTS, OTHER
CHARGES AND SECURITY DEPOSIT
2.1 Fixed Minimum Rent .
Tenant shall pay to Landlord, without deduction, set-off or demand,
as Fixed Minimum Rent (“Fixed Minimum Rent”), the sum
of Forty-four thousand Four hundred and 00/100ths Dollars
($44,400.00) per annum, [Three thousand Seven Hundred and 00/100ths
Dollars ($3,700.00) per month] from the Commencement Date until the
last day of the original term of this Lease. 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.
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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2.2 Common Area Maintenance
Charges .
(a) Landlord requires Tenant to pay
in equal monthly installments, in advance and together with
payments of Fixed Minimum Rent as provided in Section 2.1 of this
Lease the sum of Three hundred and 00/100ths Dollars ($300.00) for
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 term of this
Lease 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; and an administration fee equal
to seven and one-half percent (7.5%) of the foregoing costs. In no
event shall Tenant’s Proportionate Share of C.A.M. be
increased in any Lease Year (as hereinafter defined) more than five
percent (5%) over Tenant’s Proportionate Share of C.A.M.
during the immediately preceding Lease Year. Commencing upon the
second Lease Year, Tenant’s Proportionate Share of C.A.M.
shall be subject to increase if the total of all costs and expenses
associated with C.A.M. incurred by Landlord increase over that
payable during the initial Lease Year. If Landlord’s costs
for C.A.M. increase over that payable during the initial Lease
Year, Tenant shall pay Landlord, in equal monthly installments, in
advance and together with payments of Fixed Minimum Rent,
Tenant’s Proportionate Share of C.A.M.
(b) Silent Security Signal, a
Division of Cleveland Security Patrol (“Silent
Security”), will contact and bill Tenant directly for the
required fire monitoring fee and all inspections related thereto.
Tenant is responsible for the payment of all charges to Silent
Security each month and is responsible for maintaining the
necessary phone line for this purpose.
2.3 Utilities . Tenant shall
pay, as and when due, all electricity, gas and any other utilities
furnished to the Premises during the term hereof, other than water
and sewer (except as hereinafter set forth), at the rates of the
utility company or municipality supplying the service and according
to the readings of the meters measuring the quantity furnished.
Such payments shall be made directly to the supplying utility
company or municipality, except that Landlord may submeter
electricity, gas or other utilities, and for any service so
submetered, Tenant shall pay Landlord for the same within ten (10)
days after receipt of Landlord’s statement therefor, at the
same rate that Tenant would be required to pay if Tenant purchased
the same amount of such service for the same period from the
utility company or municipality supplying Landlord. If a submeter
fails for any period, then payments shall be made in the same
manner, but based on estimated use as determined by Landlord,
reflecting Tenant’s consumption at the time of such failure.
Landlord shall supply and pay for reasonable amounts of water and
sewer charges used at or in connection with the Premises and Tenant
shall pay to Landlord, within ten (10) days after receipt of
Landlord’s statement therefor, the cost of water and sewer
charges in excess of such reasonable amounts, as determined by
Landlord. Tenant shall be responsible for the cost of any meters or
submeters required with respect to any utilities used at the
Premises and for the maintenance thereof. Landlord shall have no
liability to Tenant or any other party for any interruption in
utility services or for the failure to furnish same.
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 2005 (“Base
Year”). 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
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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 12.5%. 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. 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 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 (i) 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
and (ii) interest on the unpaid amount at the Default Rate (as
hereinafter defined) from the original due date until paid in
full.
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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 Zero 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 D
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
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.
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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 D , 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 property and/or equipment installed in the Premises by
Tenant may, and if Landlord so requests shall (together with any
other Alterations made to the Premises by or for the benefit of
Tenant if directed by Landlord to do so), be
