Common use of Operating Covenant Clause in Contracts

Operating Covenant. (a) Subject to Tenant’s termination rights with respect to each Nonprofitable Property, or any other termination of this Master Lease with respect to any individual Demised Premises or all of the Demised Premises prior to the expiration of the Term, in accordance with the terms of this Master Lease, and subject to the provisions of Section 7.3(b) except in instances of casualty or condemnation during the period reasonably required for restoration, or for consecutive periods not to exceed one hundred twenty (120) days in connection with Alterations and other repairs subject to extension for Force Majeure, or for such other periods as Tenant reasonably determines in good faith are reasonably required in connection with the separation and division of any Recapture Property and/or Additional Recapture Space (in each case subject to Landlord’s reasonable approval), Tenant covenants and agrees to and shall continuously operate the retail business of each Sears Store as a Sears store and of each Kmart Store as a Kmart store (including, in part, by means of the Subleases) subject to and in accordance with the use provisions of Section 7.2, stocked and staffed as is generally consistent with Tenant’s applicable regional practices in the ordinary course of business (subject to any additional applicable terms and conditions of this Master Lease, including Section 7.3(b)), subject to any Rebranding and/or Alternative Retail Use (subject in all cases to all applicable Legal Requirements), during such hours of operation as are generally consistent with those of similar national retailers further, subject to any additional hours as Tenant may determine in its discretion; provided, however, that in no event shall Tenant be required to (but may in its discretion) operate during any hours which are longer or more restrictive than those (i) as currently operated by Tenant at each individual Demised Premises as of the Commencement Date or as determined by Tenant at any individual Demised Premises from time to time with respect to holiday schedules, or (ii) of any other anchor tenant or the majority of the other tenants or occupants of the Property and the balance of the Shopping Center from time to time. Tenant shall keep the Demised Premises (including all customer and service areas) in no worse condition than their current condition on the Commencement Date (subject to the repairs to be made in accordance with Schedule 10.1 to the Side Letter. (b) Notwithstanding the provisions of Section 7.3(a), if Tenant determines in its discretion to partially cease business operations at up to 50% of the Gross Leasable Square Footage (“50% Go Dark”) at any individual Demised Premises (each a “50% Go Dark Property” and collectively, “50% Go Dark Properties”), Tenant shall have the right to do so for a period determined by Tenant in its discretion not to exceed twelve (12) calendar months (“50% Go Dark Period”) from and after the date (“50% Go Dark Date”) set forth in a Notice of such intention, which notice shall describe in reasonable detail Tenant’s plan for the 50% Go Dark Period, including the manner in which Tenant will satisfy the 50% Go Dark Operating Standard, given to Landlord not less than ninety (90) days prior to Tenant going dark (“50% Go Dark Notice”); provided, however, that during any one (1) Lease Year in the aggregate there shall not be more than twenty (20) 50% Go Dark Properties in which Tenant has partially ceased business operations, it being understood and agreed that Tenant shall remain liable for each and every obligation (including, without limitation the obligation to pay Base Rent and Property Charges which respect to all of such Demised Premises) under this Master Lease with respect to each such Demised Premises (“50% Go Dark Property”), other than pursuant to this Section 7.3 from and after the 50% Go Dark Notice, subject to all of Tenant’s termination rights with respect to a Nonprofitable Property. Tenant shall give Landlord not less than thirty (30) days’ Notice of its intention to resume full business operations on or before the expiration of the applicable 50% Go Dark Period. For the avoidance of doubt, Tenant’s election to 50% Go Dark with respect to an individual Demised Premises (i) shall not be deemed to be a default or an Event of Default under this Master Lease, and (ii) Tenant’s election to 50% Go Dark with respect to such Demised Premises shall not disqualify such Demised Premises from being treated as a Nonprofitable Property in accordance with the terms of Section 1.6, at any time during the 50% Go Dark Period or thereafter. By way of example and not by way of limitation, if Tenant is precluded from exercising its right to terminate this Master Lease with respect to a Nonprofitable Property by reason of the Nonprofitable Property Limitation and thereafter elects to 50% Go Dark with respect to such Nonprofitable Property, at such time as the Nonprofitable Property Limitation ceases to apply thereto, Tenant may exercise such right of termination at any time (x) during the 50% Go Dark Period and (y) after the expiration of the 50% Go Dark Period and any resumption of business operations, without further certification of any financial data with respect to such Nonprofitable Property. Tenant shall operate each 50% Go Dark Property such that it will retain during the entire 50% Go Dark Period the look, feel and consistency of a fully operating Sears Store or Kmart Store to minimize the impact of the 50% Go Dark on customers and the operations of the Store (the “50% Go Dark Operating Standard”).

Operating Covenant. (a) Subject to Tenant’s termination rights with respect to each Nonprofitable Terminated Property, or any other termination of this Master Lease with respect to any individual Demised Premises or all of the Demised Premises prior to the expiration of the Term, in accordance with the terms of this Master Lease, and subject to the provisions of Section 7.3(b) except in instances of casualty or condemnation during the period reasonably required for restoration, or for consecutive periods not to exceed one hundred twenty (120) days in connection with Alterations and other repairs subject to extension for Force Majeure, or for such other periods as Tenant reasonably determines in good faith are reasonably required in connection with the separation and division of any Recapture Property and/or Additional Recapture Space (in each case subject to Landlord’s reasonable approval), Tenant covenants and agrees to and shall continuously operate the retail business of each Sears Store as a Sears store and of each Kmart Store as a Kmart store (including, in part, by means of the Subleases) subject to and in accordance with the use provisions of Section 7.2, stocked and staffed as is generally consistent with Tenant’s applicable regional practices in the ordinary course of business (subject to any additional applicable terms and conditions of this Master Lease, including Section 7.3(b)), subject to any Rebranding and/or Alternative Retail Use (subject in all cases to all applicable Legal Requirements), during such hours of operation as are generally consistent with those of similar national retailers further, subject to any additional hours as Tenant may determine in its discretion; provided, however, that in no event shall Tenant be required to (but may in its discretion) operate during any hours which are longer or more restrictive than those (i) as currently operated by Tenant at each individual Demised Premises as of the Commencement Date or as determined by Tenant at any individual Demised Premises from time to time with respect to holiday schedules, or (ii) of any other anchor tenant or the majority of the other tenants or occupants of the Property and the balance of the Shopping Center from time to time. Tenant shall keep the Demised Premises (including all customer and service areas) in no worse condition than their current condition on the Commencement Date (subject to the repairs to be made in accordance with Schedule 10.1 to the Side LetterDate. (b) Notwithstanding the provisions of Section 7.3(a), if Tenant determines in its discretion to partially cease business operations at up to 50% of the Gross Leasable Square Footage (“50% Go Dark”) at any individual Demised Premises (each a “50% Go Dark Property” and collectively, “50% Go Dark Properties”), Tenant shall have the right to do so for a period determined by Tenant in its discretion not to exceed twelve (12) calendar months (“50% Go Dark Period”) from and after the date (“50% Go Dark Date”) set forth in a Notice of such intention, which notice shall describe in reasonable detail Tenant’s plan for the 50% Go Dark Period, including the manner in which Tenant will satisfy the 50% Go Dark Operating Standard, given to Landlord not less than ninety (90) days prior to Tenant going dark (“50% Go Dark Notice”); provided, however, . Tenant agrees that during any one (1) Lease Year in the aggregate there shall not be more than twenty (20) 50% Go Dark Properties in which Tenant has partially ceased business operations, it being understood and agreed that Tenant shall remain liable for each and every obligation (including, without limitation the obligation to pay Base Rent and Property Charges which respect to all of such Demised Premises) under this Master Lease with respect to each such Demised Premises (“50% Go Dark Property”), other than pursuant to this Section 7.3 from and after the 50% Go Dark Notice, subject to all of Tenant’s termination rights with respect to a Nonprofitable Terminated Property. Tenant shall give Landlord not less than thirty (30) days’ Notice of its intention to resume full business operations on or before the expiration of the applicable 50% Go Dark Period. For the avoidance of doubt, Tenant’s election to 50% Go Dark with respect to an individual Demised Premises (i) shall not be deemed to be a default or an Event of Default under this Master Lease, and (ii) Tenant’s election to 50% Go Dark with respect to such Demised Premises shall not disqualify such Demised Premises from being treated as a Nonprofitable Terminated Property in accordance with the terms of Section 1.6, at any time during the 50% Go Dark Period or thereafter. By way of example and not by way of limitation, if Tenant is precluded from exercising its right to terminate this Master Lease with respect to a Nonprofitable Property by reason of the Nonprofitable Property Limitation and thereafter elects to 50% Go Dark with respect to such Nonprofitable Property, at such time as the Nonprofitable Property Limitation ceases to apply thereto, Tenant may exercise such right of termination at any time (x) during the 50% Go Dark Period and (y) after the expiration of the 50% Go Dark Period and any resumption of business operations, without further certification of any financial data with respect to such Nonprofitable Property. Tenant shall operate each 50% Go Dark Property such that it will retain during the entire 50% Go Dark Period the look, feel and consistency of a fully operating Sears Store or Kmart Store to minimize the impact of the 50% Go Dark on customers and the operations of the Store (the “50% Go Dark Operating Standard”).

Operating Covenant. (a) Subject to Tenant’s termination rights with respect to each Nonprofitable Property, or any other termination of this Master Lease with respect to any individual Demised Premises or all of the Demised Premises prior to the expiration of the Term, in accordance with the terms of this Master Lease, and subject to the provisions of Section 7.3(b) except in instances of casualty or condemnation during the period reasonably required for restoration, or for consecutive periods not to exceed one hundred twenty (120) days in connection with Alterations and other repairs subject to extension for Force Majeure, or for such other periods as Tenant reasonably determines in good faith are reasonably required in connection with the separation and division of any Recapture Property and/or Additional Recapture Space (in each case subject to Landlord’s reasonable approval), Tenant covenants and agrees to and shall continuously operate the retail business of each Sears Store as a Sears store and of each Kmart Store as a Kmart store (including, in part, by means of the Subleases) subject to and in accordance with the use provisions of Section 7.2, stocked and staffed as is generally consistent with Tenant’s applicable regional practices in the ordinary course of business (subject to any additional applicable terms and conditions of this Master Lease, including Section 7.3(b)), subject to any Rebranding and/or Alternative Retail Use (subject in all cases to all applicable Legal Requirements), during such hours of operation as are generally consistent with those of similar national retailers further, subject to any additional hours as Tenant may determine in its discretion; provided, however, that in no event shall Tenant be required to (but may in its discretion) operate during any hours which are longer or more restrictive than those (i) as currently operated by Tenant at each individual Demised Premises as of the Commencement Date or as determined by Tenant at any individual Demised Premises from time to time with respect to holiday schedules, or (ii) of any other anchor tenant or the majority of the other tenants or occupants of the Property and the balance of the Shopping Center from time to time. Tenant shall keep the Demised Premises (including all customer and service areas) in no worse condition than their current condition on the Commencement Date (subject to the repairs to be made in accordance with Schedule 10.1 to the Side Letter10.1. (b) Notwithstanding the provisions of Section 7.3(a), if Tenant determines in its discretion to partially cease business operations at up to 50% of the Gross Leasable Square Footage (“50% Go Dark”) at any individual Demised Premises (each a “50% Go Dark Property” and collectively, “50% Go Dark Properties”), Tenant shall have the right to do so for a period determined by Tenant in its discretion not to exceed twelve (12) calendar months (“50% Go Dark Period”) from and after the date (“50% Go Dark Date”) set forth in a Notice of such intention, which notice shall describe in reasonable detail Tenant’s plan for the 50% Go Dark Period, including the manner in which Tenant will satisfy the 50% Go Dark Operating Standard, given to Landlord not less than ninety (90) days prior to Tenant going dark (“50% Go Dark Notice”); provided, however, that during any one (1) Lease Year in the aggregate there shall not be more than twenty (20) 50% Go Dark Properties in which Tenant has partially ceased business operations, it being understood and agreed that Tenant shall remain liable for each and every obligation (including, without limitation the obligation to pay Base Rent and Property Charges which respect to all of such Demised Premises) under this Master Lease with respect to each such Demised Premises (“50% Go Dark Property”), other than pursuant to this Section 7.3 from and after the 50% Go Dark Notice, subject to all of Tenant’s termination rights with respect to a Nonprofitable Property. Tenant shall give Landlord not less than thirty (30) days’ Notice of its intention to resume full business operations on or before the expiration of the applicable 50% Go Dark Period. For the avoidance of doubt, Tenant’s election to 50% Go Dark with respect to an individual Demised Premises (i) shall not be deemed to be a default or an Event of Default under this Master Lease, and (ii) Tenant’s election to 50% Go Dark with respect to such Demised Premises shall not disqualify such Demised Premises from being treated as a Nonprofitable Property in accordance with the terms of Section 1.6, at any time during the 50% Go Dark Period or thereafter. By way of example and not by way of limitation, if Tenant is precluded from exercising its right to terminate this Master Lease with respect to a Nonprofitable Property by reason of the Nonprofitable Property Limitation and thereafter elects to 50% Go Dark with respect to such Nonprofitable Property, at such time as the Nonprofitable Property Limitation ceases to apply thereto, Tenant may exercise such right of termination at any time (x) during the 50% Go Dark Period and (y) after the expiration of the 50% Go Dark Period and any resumption of business operations, without further certification of any financial data with respect to such Nonprofitable Property. Tenant shall operate each 50% Go Dark Property such that it will retain during the entire 50% Go Dark Period the look, feel and consistency of a fully operating Sears Store or Kmart Store to minimize the impact of the 50% Go Dark on customers and the operations of the Store (the “50% Go Dark Operating Standard”).