Exhibit 10.57
OCCUPANCY LICENSE AGREEMENT
This
Occupancy License Agreement (this “ License Agreement
”) is executed effective January 17, 2008 by and among
Value City Department Stores LLC, an Ohio limited liability company
(“ VCDS ”), Retail Ventures Services, Inc., an
Ohio corporation (“ RVSI ”) and DSW Inc., an
Ohio corporation (“ DSW ”) (collectively, RVSI
and DSW shall be referred to herein as “ RV
”).
Background
VCDS is
currently the tenant under a Lease Agreement between MRSLV Columbus
— 3241 L.L.C., a Delaware limited liability company, as
Landlord, and VCDS, as Tenant, dated August 13, 1997 (the
“ Master Lease ”), with respect to the land and
building commonly known as 3241 Westerville Road, Columbus, Ohio
(the “ Premises ”). The current landlord under
the Master Lease is BLDG VC Olive Tree LLC, a Delaware limited
liability company, as successor to MRSLV Columbus — 3241
L.L.C. (“ Master Landlord ”).
VCDS is
currently a wholly owned subsidiary of Retail Ventures Inc., the
parent corporation of RVSI. However, on or about the date hereof,
Retail Ventures, Inc. intends to sell a controlling portion of its
membership interest in VCDS to VCHI Acquisition Co., a Delaware
Corporation (such sale being referred to herein as the “
Transaction ”).
RV and
certain of its affiliates and VCDS each currently occupy a portion
of the Premises and share certain expenses associated with such
shared occupancy.
RV and
VCDS desire to formalize the existing arrangements with respect to
this shared occupancy of the Premises and to provide for the
continued right of RV and its affiliates to occupy and use a
portion of the Premises after the completion of the
Transaction.
Agreement
NOW,
THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, RV and VCDS agree as follows:
1.
Grant of License . Subject to the terms and conditions
hereinafter set forth, VCDS hereby grants to RV and the affiliates
of RV listed in Exhibit A hereto (collectively, the
“ RV Affiliates ”) (and, subject to the approval
of VCDS, other than VCDS, any affiliates of RVSI or DSW,
specifically including Brand Technology Services LLC) (a) an
exclusive license to occupy and use those portions of the Premises
as generally depicted on Exhibit B hereto (the “
Exclusive Licensed Area ”), which are the portions
currently occupied exclusively by RV and such subsidiaries or
affiliates, and (b) a non-exclusive license, in common with
VCDS, to occupy and use all other portions of the Premises
currently occupied or utilized by RV (and its affiliates other than
VCDS) on a non-exclusive basis, including but not limited to those
areas necessary or appropriate for access to and the reasonable
utilization of the Exclusive Licensed Area (the “
Non-Exclusive Licensed Area ” and together with the
Exclusive License Area, the “ Licensed Area ”).
Upon thirty (30) days prior written notice to VCDS, RV may
surrender and remise to
VCDS any
portion(s) of the Exclusive Licensed Area effective as of the date
set forth in such notice. Upon such effective date, the Exclusive
Licensed Area shall be, for all purposes including rent, the
remaining portion(s) of the prior Exclusive Licensed Area. The
licenses granted in this Section 1 are each (i) a license
coupled with an interest, and (ii) irrevocable except in
accordance with the terms of this License Agreement.
2.
Term . The term of this License Agreement and the licenses
granted herein shall commence on the date hereof and shall expire
and terminate on such date as is specified in a written notice of
termination from either VCDS or RV to the other party as the
“ Termination Date ” (such notices being
referred to herein as a “ Termination Notice ”);
provided that the Termination Date shall in no event be earlier
than (i) one (1) year following the date the closing of
the Transaction becomes effective, if the Termination Notice is
delivered by VCDS, and (ii) ninety (90) days after the date of
delivery of the Termination Notice; provided further , that
in no event shall the Termination Date be later than the Expiration
Date of the Master Lease, as such term is defined therein.
3.
Rent . RVSI shall pay to VCDS rent in the amount of
$5,984.00 per month on or before the first day of each month during
the term of the License Agreement, and DSW shall pay to VCDS rent
in the amount of $2,394.00 per month on or before the first day of
each month during the term of the License Agreement, for a total
monthly rent of $8,378.00. In the event the first and/or last month
are less than a full month, rent for such partial month shall be
prorated. This paragraph 3 shall survive the Termination Date or
earlier termination of this License Agreement.
4.
Utilities . VCDS shall be responsible for securing and
paying for all utility services at the Premises, which shall be of
the same quality and capacity as on the effective date
hereof.
5.
Maintenance of Premises . VCDS agrees to keep the Premises
in neat and orderly condition and VCDS will repair promptly at its
own expense any damage to the Premises, including the Licensed
Area, unless otherwise provided in this Section 5. RV agrees
to keep the Exclusive Licensed Area in neat and orderly condition
and RV will repair promptly at its own expense any damage caused by
RV or RV’s employees or invitees to either the Exclusive
Licensed Area or the Non-Exclusive Licensed Area.
6.
Insurance and Indemnity . RV will secure a policy of
commercial liability insurance coverage with a combined single
limit of no less than $10,000,000 per occurrence covering bodily
injury, personal injury and property damage which may be a
combination of primary and umbrella coverages. In additi
