EXHIBIT 10.58
LEASE
LANDLORD: K&S MAPLE HILL MALL, L.P.
X/X XXXXX XXXXXX XXXXXXXXXXX
0000 XXX XXXX XXXX XXXX
SUITE 000
XXX XXXX XXXX, XXX XXXX 00000
TENANT: SHONAC CORPORATION
0000 XXXX XXXXX XXXXXX
XXXXXXXX, XXXX 00000
PREMISES: Approximately 26,083 square feet at
Maple Hill Mall, Kalamazoo, Michigan
TABLE OF CONTENTS
Page
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SECTION 1. PREMISES.......................................................... 1
SECTION 2. TERM.............................................................. 1
SECTION 3. COMMENCEMENT DATE................................................. 1
SECTION 4. RENEWAL OPTIONS................................................... 2
SECTION 5. MINIMUM RENT...................................................... 3
SECTION 6. PERCENTAGE RENT................................................... 4
SECTION 7. TITLE ENCUMBRANCES................................................ 5
SECTION 8. RIGHT TO REMODEL.................................................. 5
SECTION 9. UTILITIES......................................................... 6
SECTION 10. GLASS............................................................. 6
SECTION 11. PERSONAL PROPERTY................................................. 6
SECTION 12. RIGHT TO MORTGAGE................................................. 6
SECTION 13. SUBLEASE OR ASSIGNMENT............................................ 7
SECTION 14. COMMON AREAS...................................................... 7
SECTION 15. OPERATION OF COMMON AREAS......................................... 8
SECTION 16. COMMON AREA MAINTENANCE, TENANT'S SHARE........................... 8
SECTION 17. EMINENT DOMAIN.................................................... 9
SECTION 18. TENANT'S TAXES.................................................... 10
SECTION 19. RISK OF GOODS..................................................... 10
SECTION 20. USE AND OCCUPANCY................................................. 10
SECTION 21. NUISANCES......................................................... 12
SECTION 22. WASTE AND REFUSE REMOVAL.......................................... 12
SECTION 23. DESTRUCTION OF PREMISES........................................... 12
SECTION 24. LANDLORD REPAIRS.................................................. 13
SECTION 25. TENANT'S REPAIRS.................................................. 14
SECTION 26. COVENANT OF TITLE AND PEACEFUL POSSESSION......................... 15
SECTION 27. TENANT'S AND LANDLORD'S INSURANCE; INDEMNITY...................... 15
SECTION 28. REAL ESTATE TAXES................................................. 17
SECTION 29. TENANT'S INSURANCE CONTRIBUTION................................... 18
SECTION 30. FIXTURES.......................................................... 19
SECTION 31. SURRENDER......................................................... 19
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SECTION 32 HOLDING OVER...................................................... 19
SECTION 33. NOTICE............................................................ 19
SECTION 34. DEFAULT........................................................... 19
SECTION 35. WAIVER OF SUBROGATION............................................. 22
SECTION 36. LIABILITY OF LANDLORD; EXCULPATION................................ 22
SECTION 37. RIGHTS CUMULATIVE................................................. 23
SECTION 38. MITIGATION OF DAMAGES............................................. 23
SECTION 39. SIGNS............................................................. 23
SECTION 40. ENTIRE AGREEMENT.................................................. 23
SECTION 41. LANDLORD'S LIEN - DELETED BY INTENTION............................ 23
SECTION 42. BINDING UPON SUCCESSORS........................................... 23
SECTION 43. HAZARDOUS SUBSTANCES.............................................. 23
SECTION 44. TRANSFER OF INTEREST.............................................. 24
SECTION 45. ACCESS TO PREMISES................................................ 24
SECTION 46. HEADINGS.......................................................... 25
SECTION 47. NON-WAIVER........................................................ 25
SECTION 48. SHORT FORM LEASE.................................................. 25
SECTION 49. ESTOPPEL CERTIFICATE.............................................. 25
SECTION 50. TENANT'S REIMBURSEMENT............................................ 25
SECTION 51. TENANT'S TERMINATION RIGHT:....................................... 26
SECTION 52. NO BROKER......................................................... 26
SECTION 53. UNAVOIDABLE DELAYS................................................ 26
SECTION 54. TIMELY EXECUTION OF LEASE......................................... 26
SECTION 55. ACCORD AND SATISFACTION........................................... 26
SECTION 56. WAIVER OF JURY TRIAL.............................................. 27
SECTION 57. LEASEHOLD FINANCING............................................... 27
LIST OF EXHIBITS:
EXHIBIT "A-1" SITE PLAN
EXHIBIT "A-2" LEGAL DESCRIPTION
EXHIBIT "B" LANDLORD'S WORK
EXHIBIT "C" TENANT'S WORK
EXHIBIT "D" EXISTING USE EXCLUSIVES AND PROHIBITED USES
EXHIBIT "E" EXCEPTIONS TO TENANT EXCLUSIVE
EXHIBIT "F" EXCLUDED TENANTS
EXHIBIT "G-1" TENANT SIGNAGE
EXHIBIT "G-2" TENANT IMPROVEMENTS
ii
EXHIBIT "H" LANDLORD'S AGREEMENT
EXHIBIT "I" LANDLORD'S WAIVER
iii
LEASE
THIS AGREEMENT OF LEASE, made this 24 day of September, 2004, by and
between K&S MAPLE HILL MALL, L.P., a Delaware limited partnership (hereinafter
referred to as "Landlord"), with offices at x/x Xxxxx Xxxxxx Xxxxxxxxxxx, 0000
Xxx Xxxx Xxxx Road, Suite 100, New Hyde Park, New York 11042 and SHONAC
CORPORATION, an Ohio corporation (hereinafter referred to as "Tenant") with
offices at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000.
WITNESSETH:
SECTION 1. PREMISES
(a) Landlord, in consideration of the rents to be paid and covenants and
agreements to be performed by Tenant, does hereby lease unto Tenant the premises
(hereinafter referred to as the "premises" or "demised premises") in the
shopping center commonly known as Maple Hill Mall, in Oshtemo Township, County
of Kalamazoo and State of Michigan. Landlord owns a portion of said shopping
center containing approximately 300,000 square feet of leasable space on
approximately 74 acres (hereinafter referred to as the "Shopping Center" or
"Center"). The location, size, and area of the demised premises and of the
Shopping Center shall be substantially as shown on Exhibit "A-1" attached hereto
and made a part hereof. A legal description of the Shopping Center is shown on
Exhibit "A-2" attached hereto and made a part hereof. Landlord shall not change
the configuration of the Shopping Center so as to materially adversely affect
access to, visibility of or parking for the premises without the prior written
consent of Tenant.
(b) The demised premises shall have a ground floor area of approximately
26,083 square feet with approximate dimensions of 125' x 208'.
SECTION 2. TERM
The term of this Lease shall be for a period of fifteen (15) years,
beginning on the commencement date (as hereinafter defined), except that if the
commencement date shall be a day other than the first day of a month, then the
period of time between the commencement date and the first day of the month next
following shall be added to the term of the Lease.
SECTION 3. COMMENCEMENT DATE
(a) As herein used, the phrase "commencement date" shall mean the earlier
of: (i) the day Tenant opens for business in the demised premises, or (ii)
ninety (90) days after Landlord has delivered to Tenant possession of the
demised premises as same are to be substantially completed by Landlord and ready
for occupancy, as in (b) below. Landlord agrees to deliver the demised premises
to Tenant with Landlord's Work (as set forth on Exhibit "B", attached hereto and
made a part hereof) completed between July 1, 2005 and August 15, 2005 (the
"Delivery Period"). Landlord shall give Tenant notice (the "Estimated Delivery
Notice") no later than May 1, 2005 of the status of Landlord's construction and
the estimated date that Landlord shall deliver the Premises to Tenant with
Landlord's Work substantially completed (the "Estimated Delivery Date").
Landlord may, but is under no obligation, to revise the Estimated Delivery Date
any time prior to thirty (30) days prior to the Estimated Delivery Date (the
"Final Delivery Notice Date"), by which time Landlord shall have given Tenant a
final notice (the "Final Delivery Notice") of a firm delivery date (the "Final
Delivery Date") upon which the Landlord's Work shall be substantially completed
and the Leased Premises delivered to Tenant. Upon the sending of the Final
Delivery Notice, Landlord shall have no further right to modify the Final
Delivery Date. However, if Landlord has not delivered a Final Delivery Notice by
the Final Delivery Notice Date, then the Estimated Delivery Notice shall be the
Final Delivery Notice and the Estimated Delivery Date shall be the Final
Delivery Date. The Final Delivery Date shall not be earlier than (i) thirty (30)
days after the date Tenant receives the Final Delivery Notice, or (ii) the first
day of the Delivery Period. If Landlord does not deliver the demised premises to
Tenant as required herein by August 15, 2005, Tenant may defer delivery until
January 2, 2006. If Landlord does not deliver the demised premises to Tenant
thereafter on or before July 1, 2006, Tenant may terminate this Lease or defer
delivery until December 1, 2006. In the event that the demised
premises and Landlord's Work are not substantially completed and delivered to
Tenant on or before the Final Delivery Date, the minimum rent due hereunder
shall be adjusted so that, after the Rent Commencement Date, the Tenant shall
receive a credit against minimum rent thereafter due Landlord equal to one (1)
day of minimum rent for each day after the Final Delivery Date until delivery of
the demised premises is made to Tenant consistent with the terms of this Lease,
including substantial completion of the Landlord's Work. Tenant shall not be
obligated to accept possession of the demised premises prior to the later of (a)
substantial completion of Landlord's Work, (b) the first day of the Delivery
Period and (c) the Final Delivery Date. Time is of the essence regarding all
dates set forth in this Section 3(a). Landlord shall obtain a certificate of
occupancy or completion, permit or the local equivalent that is required for
Landlord's Work at the demised premises so that Tenant may obtain a building
permit for Tenant's Work and commence performance of the same.
(b) Possession of the demised premises shall not be deemed to have been
given to Tenant unless the demised premises are ready for the installation of
Tenant's fixtures and finishing work by Tenant, and are free of any violation of
laws, ordinances, regulations and building restrictions relating to the
possession or use of or construction upon the demised premises, and until
Landlord has substantially completed Landlord's Work. Tenant shall supply
Landlord with Tenant's prototypical plans and specifications, and Landlord shall
prepare plans and specifications for the Premises at Landlord's expense, for
Tenant's approval. All such Landlord's Work shall be done at Landlord's expense
and in compliance with all applicable federal, state and local laws, rules,
regulations and code requirements. Landlord shall obtain a certificate of
occupancy or completion, permit or the local equivalent that is required for
Landlord's Work at the demised premises as part of Landlord's Work.
(c) Prior to the date on which possession is delivered to Tenant as
aforesaid, Tenant shall have the right to enter the demised premises at its own
risk rent-free for the purpose of preparing for its occupancy, installing
fixtures and equipment, and receiving merchandise and other property, provided
that it does not unreasonably interfere with Landlord's construction activities.
All work other than that to be performed by Landlord is to be done by Tenant
within ninety (90) days after the date possession of the demised premises has
been delivered to Tenant, at Tenant's expense in accordance with the provisions
of this Lease and as set forth in the schedule entitled Description of Tenant's
Work and attached hereto as Exhibit "C" and made a part hereof. All Tenant's
Work shall be performed lien free by Tenant, in a good and workmanlike manner
(employing materials of good quality) in compliance with all governmental
requirements. In the event a mechanic's lien is filed against the demised
premises or the Shopping Center on account of Tenant's Work, Tenant shall
discharge or bond off same within ten (10) days from the filing thereof. If
Tenant fails to discharge said lien, Landlord may bond off or pay same without
inquiring into the validity or merits of such lien, and all sums so advanced
shall be paid on demand by Tenant as additional rent.
(d) From the date upon which the demised premises are delivered to Tenant
for its work until the commencement date of the lease term, Tenant shall observe
and perform all of its obligations under this Lease (except Tenant's obligation
to operate and pay minimum rent, percentage rent and "Tenant's Proportionate
Share" (defined in Section 16(c) below) of "Maintenance Costs" (defined and
provided for in Section 16(b) hereof) "real estate taxes" (defined and provided
for in Section 28(b) hereof) and insurance (provided for in Section 28 hereof).
In the event Tenant fails to open for business within one hundred twenty (120)
days after the date possession of the demised premises has been delivered to
Tenant, Landlord, in addition to any and all other available remedies, may
require Tenant to pay to Landlord, in addition to all other rent and charges
herein, as liquidated damages and not as a penalty, an amount equal to one-three
hundred sixty five thousandths (1/365) of the annual minimum rent for each day
such failure to open continues.
SECTION 4. RENEWAL OPTIONS
(a) Provided Tenant has fully complied with all of the terms, provisions,
and conditions on its part to be performed under this Lease and is not in
default under this Lease, Tenant may, by giving written notice to the Landlord
at least six (6) months on or before the expiration of the initial term of this
Lease, extend such term for a period of five (5) years upon the same covenants
and agreements as are herein set forth, except that the minimum rent during
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the first renewal term shall be increased to Thirty-four Thousand Four Hundred
Fifty-one and 30/100 Dollars ($34,451.30) each month.
(b) Provided Tenant has fully complied with all of the terms, provisions
and conditions on its part to be performed under this Lease, is not in default
under this Lease and has exercised its first option to renew hereunder, Tenant
may, by giving written notice to the Landlord at least six (6) months on or
before the expiration of the first extended term of this Lease, extend such term
for an additional period of five (5) years upon the same covenants and
agreements as the first extended term except that the minimum rent (as increased
pursuant to Section 4(a) above) during this second renewal term shall be further
increased to Thirty-seven Thousand Nine Hundred Seven and 29/100 Dollars
($37,907.29) each month.
(c) Provided Tenant has fully complied with all of the terms, provisions
and conditions on its part to be performed under this Lease, is not in default
under this Lease and has exercised its second option to renew hereunder, Tenant
may, by giving written notice to the Landlord at least six (6) months on or
before the expiration of the second extended term of this Lease, extend such
term for an additional period of five (5) years upon the same covenants and
agreements as the second extended term except that the minimum rent (as
increased pursuant to Section 4(b) above) during this third renewal term shall
be further increased to Forty-one Thousand Six Hundred Eighty-nine and 33/100
Dollars ($41,689.33) each month. The initial term and any renewal term(s) are
hereinafter collectively referred to as the "term".
SECTION 5. MINIMUM RENT
(a) Tenant agrees to pay to Landlord, as minimum rent for the demised
premises, equal consecutive monthly installments of Twenty-six Thousand
Eighty-three Dollars ($26,083.00), commencing on the commencement date, and
continuing on the first day of each calendar month during years one (1) through
five (5) of the initial term of this Lease, monthly installments of Twenty-eight
Thousand Four Hundred Seventy-three and 94/100 Dollars ($28,473.94) each
calendar month during years six (6) through ten (10), and monthly installments
of Thirty-one Thousand Three Hundred Twenty-one and 34/100 Dollars ($31,321.34)
each calendar month during years eleven (11) through fifteen (15) of the initial
term of this Lease. All such rental shall be payable to Landlord in advance,
without prior written notice or demand and without any right of deduction,
abatement, counterclaim or offset whatsoever (unless specifically permitted in
this Lease). In no event shall Tenant have the right to offset more than
twenty-five percent (25%) of minimum rent in any calendar month, and Tenant
shall have no right to offset against any additional rent other than any
percentage rent payable hereunder. As used in this Lease, the terms "minimum
rent" and "minimum rental" mean the minimum rental set forth in this Section
5(a) as adjusted pursuant to Section 4 hereof. As used in this Lease, the terms
"rent and "rental" mean minimum rental, percentage rental, additional rental and
all other sums due and owing from Tenant to Landlord under this Lease.
(b) If the Lease term shall commence on a day other than the first day of
a calendar month or shall end on a day other than the last day of a calendar
month, the minimum rental for such first or last fractional month shall be such
proportion of the monthly minimum rental as the number of days in such
fractional month bears to the total number of days in such calendar month.
(c) Until further notice to Tenant, all rental payable under this Lease
shall be payable to Landlord and mailed to Landlord at c/o Kimco Realty
Corporation, 3333 New Hyde Xxxx Xxxx, Xxxxx 000, Xxx Xxxx Xxxx, Xxx Xxxx 00000.
(d) In the event any sums required under this Lease to be paid are not
received when due, then all such amounts shall bear interest from the due date
thereof until the date paid at the rate of interest equal to two percent (2%)
over the prime rate in effect from time to time as established by National City
Bank, Columbus, Ohio (the "Interest Rate"), and shall be due and payable by
Tenant without notice or demand, Tenant shall pay the foregoing interest thereon
in addition to all default remedies of Landlord pursuant to Section 34 below.
(e) Notwithstanding anything herein contained to the contrary, Tenant
shall initially pay to Landlord as additional rental, simultaneously with the
payment of minimum rental called for under Section 5(a) above, Two Dollars and
06/100 ($2.06) per square foot, payable in equal
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monthly installments of Four Thousand Four Hundred Seventy-seven and 58/100
Dollars ($4,477.58), as the estimated monthly amount of Tenant's proportional
Share of Maintenance Costs (provided for in Section 16 hereof), real estate
taxes (provided for in Section 28 hereof) and insurance (provided for in Section
29 hereof). Tenant's proportionate share of Maintenance Costs shall not exceed
Eighty-five Cents ($0.85) per square foot in the first lease year.
SECTION 6. PERCENTAGE RENT
(a) Beginning with the first lease year, Tenant shall pay to the Landlord,
in addition to minimum rent, upon the conditions and at the times hereinafter
set forth, percentage rent equal to two percent (2%) of Tenant's gross sales (as
hereinafter defined) in excess of the number obtained by dividing (a) minimum
rent for the applicable lease year by (b) the number .04. The annual percentage
rent shall be paid by Tenant to the Landlord within ninety (90) days after the
end of each lease year. Each such payment shall be accompanied by a statement
signed by an authorized representative of Tenant setting forth Tenant's gross
sales for such lease year. For purposes of permitting verification by the
Landlord of the gross sales reported by Tenant, the Landlord shall have the
right, not more than one (1) time per lease year, upon not less than five (5)
business days notice to Tenant, to audit during normal business hours in
Tenant's corporate office, Tenant's books and records relating to Tenant's gross
sales for a period of two (2) years after the end of each lease year. Landlord
agrees that no contingency fee auditor shall be employed by Landlord for the
purpose of conducting any such audit. If such an audit reveals that Tenant has
understated its gross sales by more than three percent (3%) for any lease year,
Tenant, in addition to paying the additional percentage rent due, shall pay the
reasonable cost of the audit within thirty (30) days of Tenant's receipt of
Landlord's demand for the same and copies of all bills or invoices on which such
cost is based.
(b) For purposes hereof, a lease year shall consist of a consecutive
twelve (12) calendar month period commencing on the commencement of the term of
this Lease; provided, however, that if this Lease commences on a day other than
the first day of a calendar month, then the first lease year shall consist of
such fractional month plus the next succeeding twelve (12) full calendar months,
and the last lease year shall consist of the period commencing from the end of
the preceding lease year and ending with the end of the term of the Lease,
whether by expiration of term or otherwise. In the event percentage rental shall
commence to accrue on a day other than the first day of a lease year, the
percentage rental for such lease year shall be adjusted on a pro rata basis,
based upon the actual number of days in such lease year.
(c) Each lease year shall constitute a separate accounting period, and the
computation of percentage rental due for any one period shall be based on the
gross sales for such lease year.
(d) The term "gross sales" as used in this Lease is hereby defined to mean
the gross dollar aggregate of all sales or rental or manufacture or production
of merchandise and all services, income and other receipts whatsoever of all
business conducted in, at or from any part of the demised premises, whether for
cash, credit, check, charge account, gift or merchandise certificate purchased
or for other disposition of value regardless of collection. Should any
departments, divisions or parts of Lessee's business be conducted by any
subleases, concessionaires, licensees, assignees or others, then there shall be
included in Lessee's gross sales, all "gross sales" of such department, division
or part, whether the receipts be obtained at the demised premises or elsewhere
in the same manner as if such business had been conducted by Lessee. Gross sales
shall exclude the following: (i) any amount representing sales, use, excise or
similar taxes; (ii) the amount of refunds, exchanges or returns by customers or
allowances to customers.
(e) The percentage rental, if any, shall be paid within ninety (90) days
after the end of each lease year, accompanied by a statement in writing signed
by Tenant setting forth its gross sales from the sale of all items for such
lease year. Tenant shall keep at its principal executive offices, where now or
hereafter located, true and accurate accounts of all receipts from the demised
premises. Landlord, its agents and accountants, shall have access to such
records at any and all times during regular business hours for the purpose of
examining or auditing the same. Tenant shall also furnish to Landlord any and
all supporting data in its possession relating to gross sales and any deductions
therefrom as Landlord may reasonably require. Landlord agrees
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to keep any information obtained therefrom confidential, except as may be
required for Landlord's tax returns, or in the event of litigation or
arbitration where such matters are material.
(f) Tenant shall at all times maintain accurate records which shall be
available for Landlord's inspection at any reasonable time.
(g) If Landlord, for any reason, questions or disputes any statement of
percentage rental prepared by Tenant, then Landlord, at its own expense, may
employ such accountants as Landlord may select to audit and determine the amount
of gross sales for the period or periods covered by such statements. If the
report of the accountants employed by Landlord shall show any additional
percentage rental payable by Tenant, then Tenant shall pay to Landlord such
additional percentage rental plus interest at one (1) point over the prime rate,
commencing on the date such percentage rentals should have been paid, within
thirty (30) days after such report has been forwarded to Tenant, unless Tenant
shall, within said thirty (30) day period, notify Landlord that Tenant questions
or disputes the correctness of such report. In the event that Tenant questions
or disputes the correctness of such report, the accountants employed by Tenant
and the accountants employed by Landlord shall endeavor to reconcile the
question(s) or dispute(s) within thirty (30) days after the notice from Tenant
questioning or disputing the report of Landlord's accountants. In the event that
it is finally determined by the parties that Tenant has understated percentage
rent for any Lease year by three percent (3%) or more, Tenant shall pay the cost
of the audit. Furthermore, if Tenant's gross sales cannot be verified due to the
insufficiency or inadequacy of Tenant's records, then Tenant shall pay the cost
of the audit. The cost of any audit resulting from failure to report percentage
rent after written notification of default shall be at the sole cost of Tenant.
SECTION 7. TITLE ENCUMBRANCES
Tenant's rights under this Lease are subject and subordinate to those
title matters set forth in Landlord's owner's title insurance policy issued by
Chicago Title of Michigan, Inc., being Policy No. 39-60824, dated July 22, 2002,
specifically including but not limited to the terms and conditions of a certain
Operation and Easement Agreement between Xxxxxx Xxxxxx Corporation and Good Will
Co., Inc., recorded September 2, 1993 in Liber 1664, page 1229 ("OEA"), and that
certain Restated Reciprocal Construction, Operation and Easement Agreement
("REA") between Jewel Properties Venture, Forbes Xxxxx/Xxxxxx-Kal Associates,
the Economic Development Corporation for the County of Kalamazoo, Forbes/Xxxxx
Properties, Xxxxxxxxxx Xxxx & Co., Inc. and Kalaward Associates, recorded on
October 31, 1980 in Liber 1107, Page 519, Kalamazoo County Records, Michigan, as
amended by that certain Assignment and Assumption of REA recorded August 24,
1984 in Liber 1210, Page 583, Kalamazoo County Records, Michigan, as amended by
that certain Assignment and Assumption of REA recorded in Liber 1221, Page 936,
Kalamazoo County Records, Michigan, as amended by that certain Assignment and
Assumption of REA recorded November 2, 1990 in Liber 1480, Page 965, Kalamazoo
County Records, Michigan, as amended by that certain First Amendment to REA
recorded May 10, 1991 in Liber 1501, Page 546, Kalamazoo County Records,
Michigan, as amended by that certain Second Amendment to REA recorded July 16,
1993 in Liber 1654, Page 880, Kalamazoo County Records, Michigan, as amended by
that certain Assignment and Assumption of REA dated April 27, 1994 and recorded
April 29, 1994 in Liber 1722, Page 787, Kalamazoo County Records, Michigan, as
amended by that certain Assignment and Assumption of REA dated as of July 12,
1994 and recorded July 18, 1994 in Liber 1738, Page 665, Kalamazoo County
Records, Michigan. All of the foregoing are collectively referred to herein as
the "Underlying Documents" and Tenant agrees that it shall abide by the terms
and conditions of the Underlying Documents.
SECTION 8. RIGHT TO REMODEL
(a) Tenant may, at Tenant's expense, make repairs and alterations to the
interior non-structural portions of the demised premises and remodel the
interior of the demised premises, excepting structural and exterior changes, in
such manner and to such extent as may from time to time be deemed necessary by
Tenant for adapting to the demised premises to the requirements and uses of
Tenant and for the installation of its fixtures, appliances and equipment. Any
structural or exterior alteration may only be made by Tenant with the prior
written approval of Landlord, which approval may be granted or withheld in
Landlord's sole discretion. All plans for
5
any structural alterations shall be submitted to Landlord for endorsement of its
approval prior to commencement of work. Upon Landlord's request, Tenant shall be
obligated, if it remodels and/or alters the demised premises, to restore the
demised premises upon vacating the same. Tenant will indemnify and save harmless
the Landlord from and against all mechanics liens or claims by reason of
repairs, alterations or improvements which may be made by Tenant to the demised
premises. Inasmuch as any such alterations, additions or other work in or to the
demised premises may constitute or create a hazard, inconvenience or annoyance
to the public and other tenants in the Shopping Center, Tenant shall, if so
directed in writing by Landlord, erect barricades, temporarily close the demised
premises, or affected portion thereof, to the public or take whatever measures
are necessary to protect the building containing the demised premises, the
public and the other tenants of the Shopping Center for the duration of such
alterations, additions or other work. If Landlord determines, in its sole
judgment, that Tenant has failed to take any of such necessary protective
measures, and Tenant fails to cure same within ten (10) days after notice
thereof, Landlord may do so and Tenant shall reimburse Landlord for the cost
thereof within ten (10) days after Landlord bills Tenant therefor.
(b) All such work, including Tenant's Work pursuant to Exhibit "C" shall
be performed lien free by Tenant. In the event a mechanic's lien is filed
against the premises or the Shopping Center, Tenant shall discharge or bond off
same within ten (10) days from the filing thereof. If Tenant fails to discharge
said lien, Landlord may bond off or pay same without inquiring into the validity
or merits of such lien, and all sums so advanced shall be paid on demand by
Tenant as additional rent.
SECTION 9. UTILITIES
(a) The Tenant agrees to be responsible and pay for all public utility
services rendered or furnished to the demised premises during the term hereof,
including, but not limited to, heat, water, gas, electric, steam, telephone
service and sewer services, together with all taxes, levies or other charges on
such utility services when the same become due and payable. Landlord will
separately meter utilities prior to delivery. Landlord shall provide, or cause
to be provided, all such utility services to the premises during the term of
this Lease. Tenant shall be responsible for all utility services and costs
inside the premises. Landlord shall not be liable for the quality or quantity of
or interference involving such utilities unless due directly to Landlord's
negligence.
(b) During the term hereof, whether the demised premises are occupied or
unoccupied, Tenant agrees to maintain heat sufficient to heat the demised
premises so as to avert any damage to the demised premises on account of cold
weather.
SECTION 10. GLASS
The Tenant shall maintain the glass part of the demised premises, promptly
replacing any breakage and fully saving the Landlord harmless from any loss,
cost or damage resulting from such breakage or the replacement thereof.
SECTION 11. PERSONAL PROPERTY
The Tenant further agrees that all personal property of every kind or
description that may at any time be in or on the demised premises shall be at
the Tenant's sole risk, or at the risk of those claiming under the Tenant, and
that the Landlord shall not be liable for any damage to said property or loss
suffered by the business or occupation of the Tenant caused in any manner
whatsoever.
SECTION 12. RIGHT TO MORTGAGE
(a) Landlord reserves the right to subject and subordinate this Lease at
all times to the lien of any deed of trust, mortgage or mortgages now or
hereafter placed upon Landlord's interest in the demised premises; provided,
however, that no default by Landlord, under any deed of trust, mortgage or
mortgages, shall affect Tenant's rights under this Lease, so long as Tenant
performs the obligations imposed upon it hereunder and is not in default
hereunder, and Tenant attorns to the holder of such deed of trust or mortgage,
its assignee or the purchaser at any foreclosure sale. Any such subordination
shall be contingent upon Tenant receiving a commercially reasonable
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non-disturbance agreement. It is a condition, however, to the subordination and
lien provisions herein provided, that Landlord shall procure from any such
mortgagee an agreement in writing, which shall be delivered to Tenant or
contained in the aforesaid subordination agreement, providing in substance that
so long as Tenant shall faithfully discharge the obligations on its part to be
kept and performed under the terms of this Lease and is not in default under the
terms hereof, its tenancy will not be disturbed nor this Lease affected by any
default under such mortgage.
(b) Wherever notice is required to be given to Landlord pursuant to the
terms of this Lease, Tenant will likewise give such notice to any mortgagee of
Landlord's interest in the demised premises upon notice of such mortgagee's name
and address from Landlord. Furthermore, such mortgagee shall have the same
rights to cure any default on the part of Landlord that Landlord would have had.
SECTION 13. SUBLEASE OR ASSIGNMENT
(a) Tenant may assign Tenant's interest in this Lease or sublet all or any
portion of the demised premises for the Permitted Use (defined in Section 20) or
for another lawful retail use compatible with the then existing tenant mix of
Maple Hill Mall subject to Landlord's prior written consent, which consent shall
not be unreasonably withheld. Landlord's review of the proposed assignee or
subtenant shall be limited to business reputation, business experience, and
financial ability to perform its obligations under this Lease or the proposed
sublease, as the case may be. Furthermore, Tenant's right to assign or sublet
for a different use then the Permitted Use (defined in Section 20) shall be
subject to those exclusives and prohibited uses set forth on Exhibit "D"
attached hereto and made a part hereof, which are the exclusives and prohibited
uses in effect for the Shopping Center as of the date hereof, for so long as and
to the extent said exclusives and prohibited uses are still in full force and
effect, as well as exclusives and prohibited uses hereafter granted for tenants
leasing 20,000 square feet or more of space elsewhere within the Shopping
Center.
Tenant may, without the consent of Landlord, (i) grant licenses and/or
concessions within the demised premises or (ii) assign or sublet all or any
portion of the demised premises to (a) any parent, affiliate or subsidiary
corporation of Tenant; (b) a transferee or successor by merger, consolidation or
acquisition of Tenant or its parent or subsidiary; or (c) a transferee with a
good business reputation who is acquiring all or substantially all of the stores
of the Tenant in the State of Michigan or the assets of the Tenant, its parent
or subsidiary. Any such assignee or sublessee shall be bound by the terms of
this Lease. Tenant shall deliver to Landlord in the ordinary course of its
business an instrument whereby the assignee or entity succeeding to Tenant's
interest hereunder agrees to be bound by the terms of this Lease.
In the event of any assignment of this Lease or subletting of the demised
premises, in whole or in part, Tenant shall remain fully and primarily liable
hereunder.
(b) Landlord may assign Landlord's interest in this Lease without the
consent of Tenant (a) to any entity to which Landlord transfers its fee interest
in the demised premises provided such entity (i) agrees in writing to be bound
by all the terms of this Lease and (ii) such assignment is pursuant to a bona
fide arm's length transaction not designed to reduce Landlord's liability or to
otherwise exempt Landlord from any provision of this Lease or (b) subject to
Section 12, as security for any indebtedness undertaken by Landlord.
SECTION 14. COMMON AREAS
Common areas means all areas and facilities in the Shopping Center
provided and so designated by Landlord and made available by Landlord in the
exercise of good business judgment for the common use and benefit of tenants of
the Shopping Center and their customers, employees and invitees. Common areas
shall include (to the extent the same are constructed), but not be limited to,
the parking areas, sidewalks, landscaped areas, corridors, stairways, boundary
walls and fences, incinerators, truckways, service roads, and service areas not
reserved for the exclusive use of Tenant or other tenants.
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SECTION 15. OPERATION OF COMMON AREAS
(a) Landlord shall, throughout the term hereof, operate and maintain the
common areas including the parking areas for the use and benefit of the tenants
of the Shopping Center and their customers and invitees. Landlord shall at all
times have exclusive control of the common areas and may at any time and from
time to time: (i) promulgate, modify and amend reasonable rules and regulations
for the use of the common areas, which rules and regulations shall be binding
upon the Tenant upon delivery of a copy thereof to the Tenant; (ii) temporarily
close any part of the common areas, including but not limited to closing the
streets, sidewalks, road or other facilities to the extent necessary to prevent
a dedication thereof or the accrual of rights of any person or of the public
therein; (iii) exclude and restrain anyone from the use or occupancy of the
common areas or any part thereof except bona fide customers and suppliers of the
tenants of the Shopping Center who use said areas in accordance with the rules
and regulations established by Landlord; (iv) engage others to operate and
maintain all or any part of the common areas, on such terms and conditions as
Landlord shall, in its sole judgment, deem reasonable and proper; and (v) make
such changes in the common areas as in its opinion are in the best interest of
the Shopping Center, including but not limited to changing the location of
walkways, service areas, driveways, entrances, existing automobile parking
spaces and other facilities, changing the direction and flow of traffic and
establishing prohibited areas; provided, however, that no such change shall
materially adversely effect access to, visibility of or parking for the demised
premises.
(b) Tenant shall keep all common areas free of obstructions created or
permitted by Tenant. Tenant shall permit the use of the common areas only for
normal parking and ingress and egress by its customers and suppliers to and from
the demised premises. If in Landlord's opinion unauthorized persons are using
any of the common areas by reason of Tenant's occupancy of the demised premises,
Landlord shall have the right at any time to remove any such unauthorized
persons from said areas or to restrain unauthorized persons from said areas.
Landlord, Tenant, and others constructing improvements or making repairs or
alterations in the Shopping Center shall have the right to make reasonable use
of portions of the common areas.
SECTION 16. COMMON AREA MAINTENANCE, TENANT'S SHARE
(a) Tenant shall initially pay to Landlord as additional rental,
simultaneously with the payment of minimum rental called for under Section 5(a),
the estimated monthly amount of Tenant's Proportionate Share of the "Maintenance
Costs" (as defined in Section 16(c) below) for the operation and maintenance of
the common areas as set forth in Section 5(e), Eighty-five Cents ($0.85) per
square foot, payable in equal monthly installments of One Thousand Eight Hundred
Forty-seven and 55/100 Dollars ($1,847.55) as the estimated monthly amount of
Tenant's Proportionate Share of the "Maintenance Costs" (as defined in Section
16(c) below) for the operation and maintenance of the common areas.
(b) The Maintenance Costs for the common areas shall be computed on an
accrual basis, under generally accepted accounting principles, and shall include
all costs of operating, maintaining, repairing and replacing the common areas,
including by way of example but not limitation: (i) cost of labor (including
worker's compensation insurance, employee benefits and payroll taxes); (ii)
materials, and supplies used or consumed in the maintenance or operation of the
common area; (iii) the cost of operating and repairing of the lighting; (iv)
cleaning, painting, removing of rubbish or debris, snow and ice, private
security services, and inspecting the common areas; (v) the cost of repairing
and/or replacing paving, curbs, walkways, markings, directional or other signs;
landscaping, and drainage and lighting facilities; (vi) rental paid for
maintenance of machinery and equipment; (vii) cost of commercial general
liability insurance and property insurance for property in the common areas
which are not part of the building and/or demised premises; and (viii) a
reasonable allowance to Landlord for Landlord's supervision, which allowance
shall not in an accounting year exceed fifteen percent (15%) of the total of all
Maintenance Costs for such accounting year (all of the foregoing are
collectively referred to herein as "Maintenance Costs").
(c) Landlord shall maintain accurate and detailed records of all
Maintenance Costs for the common areas in accordance with generally accepted
accounting principles. For purposes of this Lease, "Tenant's Proportionate
Share" shall be the product of the applicable cost or expense
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multiplied by a fraction, the numerator of which shall be the gross leasable
area (expressed in square feet) of the demised premises and the denominator of
which shall be the gross leasable area (expressed in square feet) of all
leasable space in the Shopping Center. Tenant's Proportionate Share of that
portion of the Shopping Center owned by Landlord is presently eight and
forty-one/hundreths percent (8.41%), which amount is subject to change from time
to time during the term of this Lease.
(d) The actual amount of Tenant's Proportionate Share of all Maintenance
Costs shall be computed by Landlord within one hundred eighty (180) days after
the end of each accounting year (which Landlord may change from time to time).
At this time Landlord shall furnish to Tenant a statement showing in reasonable
detail the actual Maintenance Costs incurred during such accounting year and
Tenant's Proportionate Share thereof (prorated for any partial Lease year, with
appropriate adjustments to reflect any change in the floor area of the premises
or the gross leasable area of a building occurring during such accounting year).
Any excess payments from Tenant shall be applied to the next installments of the
Maintenance Costs hereunder, or refunded by Landlord. Any underpayments by
Tenant shall be paid to Landlord within thirty (30) days after receipt of such
reconciliation statement. Tenant's estimated monthly Maintenance Cost hereunder
may be adjusted by written notice from Landlord. Notwithstanding anything
contained in this Section 16 to the contrary, Landlord and Tenant agree that the
actual amount of Tenant's Proportionate Share of Maintenance Costs, excluding
costs for snow and ice removal, shall not increase by more than five percent
(5%) in any lease year over the previous lease year, and that Tenant's
Proportionate Share of Maintenance Costs for the first lease year, excluding
costs for snow and ice removal, shall not exceed Eighty-five Cents ($0.85) per
square foot.
(e) If Tenant, for any reason in the exercise of good business judgment,
questions or disputes any statement of Maintenance Costs prepared by Landlord,
then Tenant, at its own expense, may employ such accountants as Tenant may
select to review Landlord's books and records solely with respect to Maintenance
Costs during the prior two Lease years and to determine the amount of
Maintenance Costs for the period or periods covered by such statements. If the
report of the accountants employed by Tenant shall show any overcharge paid by
Tenant, then Tenant shall receive a credit from Landlord for such difference.
Any underpayment shall be paid by Tenant. Tenant agrees that no contingency fee
auditors shall be employed by Tenant for the purpose of conducting any such
audit. In the event that Landlord questions or disputes the correctness of such
report, the accountants employed by Tenant and the accountants employed by
Landlord shall endeavor to reconcile the question(s) or dispute(s) within thirty
(30) days after the notice from Tenant questioning or disputing the report of
Landlord's accountants. In the event that it is finally determined by the
parties that Landlord has overstated Maintenance Costs for any Lease year by
three percent (3%) or more, Landlord shall pay the reasonable cost of the audit.
Furthermore, if Landlord's Maintenance Costs cannot be verified due to the
insufficiency or inadequacy of Landlord's records, then Landlord shall pay the
cost of the audit.
SECTION 17. EMINENT DOMAIN
(a) In the event the entire premises or any part thereof shall be taken or
condemned either permanently or temporarily for any public or quasi-public use
or purpose by any competent authority in appropriation proceedings or by any
right of eminent domain, the entire compensation or award therefore, including
leasehold, reversion and fee, shall belong to the Landlord and Tenant hereby
assigns to Landlord all of Tenant's right, title and interest in and to such
award.
(b) In the event that only a portion of the demised premises, not
exceeding twenty percent (20%) of same, shall be so taken or condemned, and the
portion of the demised premises not taken can be repaired within ninety (90)
days from the date of which possession is taken for the public use so as to be
commercially fit for the operation of Tenant's business, the Landlord at its own
expense shall so repair the portion of the demised premises not taken and there
shall be an equitable abatement of rent for the remainder of the term and/or
extended terms. The entire award paid on account thereof shall be paid to the
Landlord. If the portion of the demised premises not taken cannot be repaired
within ninety (90) days from the date of which possession is taken so as to be
commercially fit for the operation of Tenant's business, then this Lease shall
terminate and become null and void from the time possession of the portion taken
is required for
9
public use, and from that date on the parties hereto shall be released from all
further obligations hereunder except as herein stated and Tenant shall have no
claim for any compensation on account of its leasehold interest. No other
taking, appropriation or condemnation shall cause this Lease to be terminated.
Any such appropriation or condemnation proceedings shall not operate as or be
deemed an eviction of Tenant or a breach of Landlord's covenant of quiet
enjoyment and Tenant shall have no claim for any compensation on account of its
leasehold interest.
(c) In the event that more than 20% of the demised premises shall at any
time be taken by public or quasi-public use or condemned under eminent domain,
then at the option of the Landlord or Tenant upon the giving of thirty (30) days
written notice (after such taking or condemnation), this Lease shall terminate
and expire as of the date of such taking and any prepaid rental shall be
prorated as of the effective date of such termination.
SECTION 18. TENANT'S TAXES
Tenant further covenants and agrees to pay promptly when due all taxes
assessed against Tenant's fixtures, furnishings, equipment and stock-in trade
placed in or on the demised premises during the term of this Lease.
SECTION 19. RISK OF GOODS
All personal property, goods, machinery, and merchandise in said demised
premises shall be at Tenant's risk if damaged by water, fire, explosion, wind or
accident of any kind, and Landlord shall have no responsibility therefore or
liability for any of the foregoing and Tenant hereby releases Landlord from such
liability.
SECTION 20. USE AND OCCUPANCY
(a) Tenant agrees to initially open and operate a DSW for the retail sales
of shoes and other footwear in the demised premises, fully staffed and stocked
and equivalent to other DSW stores operated by Tenant in the State of Michigan
(the "Permitted Use"), or for any other lawful retail use upon obtaining the
prior written consent of Landlord, which consent shall not be unreasonably
withheld. Any use other than a retail shoe store shall be consistent with the
then existing character of the Shopping Center, and shall not violate those
exclusives and prohibited uses set forth on Exhibit "D" attached hereto and made
a part hereof, which are the exclusives and prohibited uses in effect for the
Shopping Center as of the date hereof, for so long as and to the extent said
exclusives and prohibited uses are still in full force and effect, as well as
exclusives and prohibited uses hereafter granted for tenants leasing more than
20,000 square feet of space elsewhere within the Shopping Center, for so long as
and to the extent said exclusives are still in full force and effect.
Landlord and Tenant acknowledge that Marshall's has an exclusive on the
sale of apparel in the Shopping Center. Landlord agrees that it shall indemnify
and hold Tenant harmless in the event that Tenant incurs any loss, cost, damage
or expense on account of any claim by Marshall's or anyone claiming under
Marshall's that Tenant's use of the demised premises for the Permitted Use
violates the terms and conditions of the Marshall's lease. The foregoing
indemnity shall expire and be of no further force and effect at such time as
Landlord delivers to Tenant a waiver by Marshall's of the foregoing Marshall's
exclusive as it relates to Tenant's rights hereunder, the terms and conditions
of which shall be subject to Tenant's prior written approval, which approval
shall not be unreasonably withheld.
(b) For so long as Tenant is continuously and regularly operating its
business in the demised premises, Landlord will not lease any space within the
Shopping Center or permit any space within the Shopping Center (to the extent
Landlord has control) to be used by any person, persons, partnership or entity
who devotes five percent (5%) or more of its selling area to the sale of
footwear (the "Exclusive Use"). The foregoing limitation shall not apply to (i)
typical shoe departments found in department stores, junior department stores,
general merchandise and discount stores, and clothing retailers, such as Target,
Marshalls and similar type stores; (ii) the existing tenants or their successors
or assigns at the Shopping Center which presently have the right to sell shoes
and other footwear, as set forth on Exhibit "E"; or (iii) any existing leases at
the Shopping Center as same may be renewed, extended, modified or amended
(except that no
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such renewal, extension, modification or amendment shall grant tenant the right
to engage in the Exclusive Use where such tenant did not previously have that
right). Notwithstanding the foregoing, in the event an existing tenant at the
Shopping Center which presently has the right to engage in the Exclusive Use
assigns or sublets its portion of the Shopping Center, and the assignment or
sublet is subject to Landlord's consent, Landlord will condition its consent on
such assignment or sublet being subject to the Exclusive Use to the extent
Landlord has the right to do so. Any portion of the Shopping Center which is
sold by Landlord during the term shall contain a deed restriction incorporating
the foregoing Exclusive Use.
(c) Tenant shall at all times conduct its operations on the demised
premises in a lawful manner and shall, at Tenant's expense, comply with all
laws, rules, orders, ordinances, directions, regulations, and requirements of
all governmental authorities, now in force or which may hereafter be in force,
which shall impose any duty upon Landlord or Tenant with respect to the business
of Tenant and the use, occupancy or alteration of the demised premises. Tenant
shall comply with all requirements of the Americans with Disabilities Act, and
shall be solely responsible for all alterations within the demised premises in
connection therewith. Tenant covenants and agrees that the demised premises
shall not be abandoned or left vacant and that only minor portions of the
demised premises shall be used for office or storage space in connection with
Tenant's business conducted in the demised premises.
Without being in default of this Lease, Tenant shall have the right to
cease operating (go dark) at any time and for whatever reason after the first
(1st) lease year. Notwithstanding the foregoing, Tenant's right to vacate (go
dark), shall not release or excuse the Tenant from any obligations or
liabilities, including the payment of minimum rent and additional rent and other
charges, under this Lease without the express written consent of Landlord. In
the event Tenant fails to (i) open and operate within ninety (90) days after
delivery of the demised premises or (ii) operate for one hundred twenty (120) or
more consecutive days, Landlord shall have the right, effective upon thirty (30)
days prior written notice to Tenant, to terminate the Lease as Landlord's sole
remedy, provided that if Tenant recommences operating fully stocked in
substantially all of the premises within such thirty (30) days, Landlord's
termination shall be null and void. In the event Tenant fails to open and
operate as provided above or shall cease operating as provided above, Landlord's
sole remedy on account thereof shall be limited to the right to elect to
recapture the premises and terminate the Lease, whereupon there shall be no
further liability of the parties hereunder. Such termination shall be effective
upon written notice to Tenant any time prior to Tenant reopening for business in
the demised premises. Provided, however, in the event Landlord has not so
elected to recapture, Tenant shall have right to notify Landlord of Tenant's
intention to reopen for business in the demised premises within sixty (60) days,
followed by Tenant's actually reopening for business fully stocked in
substantially all of the demised premises within such sixty (60) day period,
which notice and actual reopening shall toll Landlord's right to recapture.
(d) Landlord agrees that during the term of this Lease no space in the
Shopping Center (excluding areas of the Shopping Center not owned by Landlord)
will be used for a flea market, theater showing either film, television or the
like or live entertainment (excluding the existing theatre building), bar
(except as permitted by the next sentence), game/amusement room (except as
permitted by the next sentence), bowling alley, indoor playground (except as
permitted by the next sentence), or adult bookstore (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). Notwithstanding the
foregoing, spaces of the Shopping Center that are more than two-hundred (200)
feet away from the demised premises may be used for a restaurant, bar,
game/amusement room or indoor playground (provided that such bar or
game/amusement room is incidental to a restaurant) and spaces of the Shopping
Center that are more than six-hundred (600) feet away from the demised premises
or any space in the rear of the Shopping Center which does not share the same
parking field as Tenant may be used for a health club. The aforementioned
restrictions shall not apply to the rights of tenant's under existing leases at
the Shopping Center as the same may be renewed, extended, modified or amended
(except that no such renewal, extension, modification or amendment shall grant a
tenant the right to engage in any of the aforementioned prohibited uses where
such tenant did not previously have that right). Tenant's under existing leases
at the
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Shopping Center as of the date hereof not subject to the aforementioned
restrictions are set forth on Exhibit "F" attached hereto and hereby made a part
hereof (the "Excluded Tenants").
(e) Tenant agrees that the demised premises may not be used for the
operation of a bingo parlor, bar, tavern, restaurant, cocktail lounge, 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), adult theater or "strip-tease" establishment,
automotive maintenance or automotive repair facility, warehouse, car wash, pawn
shop, check cashing service, establishment selling second hand goods, flea
market, entertainment or recreational facility (as defined below), training or
educational facility (as defined below); the renting, leasing, selling or
displaying of any boat, motor vehicle or trailer; industrial or manufacturing
purposes; a carnival, circus or amusement park; a gas station, facility for the
sale of paraphernalia for use with illicit drugs, funeral home, blood bank or
mortuary, gambling establishment, banquet hall, auditorium or other place of
public assembly, second-hand or surplus store, gun range; the sale of fireworks;
a veterinary hospital or animal raising facility; the storage of goods not
intended to be sold from the Center; a video rental store, karate center,
central laundry or dry cleaning plant, supermarket or any facility which is
illegal or dangerous, constitutes a nuisance, emits offensive odors, fumes, dust
or vapors or loud noise or sounds or is inconsistent with community oriented
shopping centers. For the purposes of this Section 20(e), 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 or night club, billiard or pool hall, massage parlor, health
club, game parlor or video arcade (which shall be defined as any store
containing more than five (5) electronic games) or any other facility operated
solely for entertainment purposes (such as a "laser tag" or "virtual reality"
theme operation). For the purposes of this Section 20(e), the phrase "training
or educational facility" shall include, without limitation, a beauty school,
nail salon, xxxxxx college, reading room, place of instruction or any other
operation catering primarily to students or trainees as opposed to customers.
SECTION 21. NUISANCES
Tenant shall not perform any acts or carry on any practice which may
injure the demised premises or be a nuisance or menace to other tenants in the
Shopping Center.
SECTION 22. WASTE AND REFUSE REMOVAL
Tenant covenants that it will use, maintain and occupy said demised
premises in a careful, safe, lawful and proper manner and will not commit waste
therein. Landlord or its agent shall have access at all reasonable times to the
demised premises for purposes of inspecting and examining the condition and
maintenance of the demised premises. Tenant agrees to remove all refuse from the
demised premises in a timely, clean and sanitary manner. Tenant shall provide a
refuse collection container at the rear of the demised premises to accommodate
Tenant's refuse and Tenant shall routinely clean up around trash containers.
Tenant shall contract with a licensed and insured refuse collection contractor
to timely remove refuse therefrom and the location of the container shall be
approved by Landlord.
SECTION 23. DESTRUCTION OF PREMISES
(a) Landlord shall at all times during the term of this Lease carry
property insurance on the building containing the demised premises, including
the "Structural Portions" (defined in Section 24(a) below) and common utility
lines up to the point they serve individual tenant's premises. Landlord shall be
under no obligation to maintain insurance on any improvements installed by or
for the benefit of Tenant's use of the premises or otherwise owned by Tenant.
Landlord may elect to self-insure its obligations hereunder and/or use whatever
deductibles as Landlord deems appropriate, in its sole discretion.
(b) If the demised premises shall be damaged, destroyed, or rendered
untenantable, in whole or in part, by or as the result or consequence of fire or
other casualty during the term hereof, Landlord shall repair and restore the
same to a good tenantable condition with reasonable dispatch. During such period
of repair, the rent herein provided for in this Lease shall xxxxx (i)
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entirely in case all of the demised premises are untenantable; and (ii)
proportionately if only a portion of the demised premises is untenantable and
Tenant is able to economically conduct its business from the undamaged portion
of the demised premises. The abatement shall be based upon a fraction, the
numerator of which shall be the square footage of the damaged and unusable area
of the demised premises and the denominator shall be the total square footage of
the demised premises. Said abatement shall cease at such time as the demised
premises shall be restored to a tenantable condition.
(c) In the event the demised premises, because of such damage or
destruction, are not repaired and restored to a tenantable condition with
reasonable dispatch within one hundred fifty (150) days from the date of receipt
of insurance proceeds for such damage or destruction, Tenant or Landlord may, at
their option, terminate this Lease within sixty (60) days following such one
hundred fifty (150) day period but prior to the repair and restoration of same
by giving prior written notice to the other party and thereupon Landlord and
Tenant shall be released from all future liability and obligations under this
Lease.
(d) If one-third (1/3) or more of the ground floor area of the demised
premises are damaged or destroyed during the last two (2) years of the original
or any extended term of this Lease, Landlord shall have the right to terminate
this Lease by written notice to Tenant within sixty (60) days following such
damage or destruction, unless Tenant shall, within thirty (30) days following
receipt of such notice, offer to extend the term of this Lease for an additional
period of five (5) years from the date such damage or destruction is repaired
and restored. If Tenant makes said offer to extend, Landlord and Tenant shall
determine the terms and conditions of said extension within thirty (30) days
thereafter or Tenant's offer shall not be deemed to prevent Landlord from
canceling this Lease. If such terms and conditions have been mutually agreed to
by the parties, then Landlord shall accept Tenant's offer and shall repair and
restore the demised premises with reasonable dispatch thereafter.
(e) If Landlord is required or elects to repair and restore the demised
premises as herein provided, Tenant shall repair or replace its stock in trade,
trade fixtures, furniture, furnishings and equipment and other improvements
including floor coverings, and if Tenant has closed, Tenant shall promptly
reopen for business. Anything contained in this Section 23 to the contrary
notwithstanding, Landlord's restoration and repair obligations under Section 23
shall in no event include restoration or repair of Tenant's Work or
improvements.
SECTION 24. LANDLORD REPAIRS
(a) Landlord shall keep in good order, condition, and repair the
following: (i) structural portions of the demised premises; (ii) downspouts;
(iii) gutters; (iv) the roof of the Building of which the demised premises forms
a part; and (v) the plumbing and sewage system serving the demised premises but
located outside of the demised premises, except (as to all items) for damage
caused by any negligent act or omission of Tenant or its customers, employees,
agents, invitees, licensees or contractors, which shall be repaired or replaced
as necessary, at the sole cost and expense of Tenant. "Structural Portions"
shall mean only the following: (vi) foundations; (vii) exterior walls except for
interior faces); (viii) concrete slabs; (ix) the beams and columns bearing the
main load of the roof; and (x) the floors (but not floor coverings).
(b) Notwithstanding the provisions of Section 24(a) above, Landlord shall
not be obligated to repair the following: (i) the exterior or interior of any
doors, windows, plate glass, or showcases surrounding the demised premises or
the store front; (ii) HVAC unit(s), equipment and systems (including all
components thereof) in the demised premises; or (iii) damage to Tenant's
improvements or personal property caused by any casualty, burglary, break-in,
vandalism, acts of terrorism, war or act of G-d. Landlord shall, in any event,
have ten (10) days after notice from Tenant stating the need for repairs to
complete same, or commence and proceed with due diligence to complete same.
Nevertheless, during the first ten (10) lease years, Landlord shall be obligated
to replace all HVAC components as and when necessary so long as Tenant has
fulfilled its obligations under Section 25(a) (ii) below, and provided such
replacements did not arise from (x) repairs, installations, alterations, or
improvements made by or for Tenant or anyone claiming under Tenant, or (y) the
fault or misuse of Tenant or anyone claiming under Tenant. Prior to delivery of
possession of the demised premises, Landlord shall
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install, at its expense, a new HVAC unit(s), equipment and systems (including
all components thereof) in the demised premises. Except as specifically set
forth in this Lease, Tenant expressly hereby waives the provisions of any law
permitting repairs by a tenant at Landlord's expense.
(c) The provisions of this Section 24 shall not apply in the case of
damage or destruction by fire or other casualty or a taking under the power of
eminent domain in which events the obligations of Landlord shall be controlled
by Section 23 and Section 17 respectively.
(d) Landlord shall assign to Tenant all warranties covering all matters
required by the terms hereof to be repaired and maintained by Landlord.
SECTION 25. TENANT'S REPAIRS
(a) Tenant shall keep and maintain, at Tenant's expense, all and every
other part of the demised premises in good order, condition and repair,
including, by way of example but not limitation: (i) all leasehold improvements;
(ii) all HVAC unit(s), equipment and systems (including all components thereof)
serving the demised premises; (iii) interior plumbing and sewage facilities;
(iv) all interior lighting; (v) electric signs; (vi) all interior walls; (vii)
floor coverings; (viii) ceilings; (ix) appliances and equipment; (x) all doors,
exterior entrances, windows and window moldings; (xi) plate glass; (xii) signs
and showcases surrounding and within the demised premises; (xiii) the store
front; (xiv) sprinkler systems including supervisory alarm service in accordance
with National Fire Protection Association standards and current local and state
fire protection standards to ensure property operation, and as required by
Section 27(b) below.
(b) Sprinkler systems, if any, located in Tenant's area shall be
maintained in accordance with National Fire Protection Association standards to
ensure proper operation. Sprinkler control valves (interior and exterior)
located in Tenant's area shall be monitored by supervisory alarm service. In the
event local or state codes do not require alarm systems, Tenant shall provide
alarm service on all sprinkler systems to detect water flow and tampering with
exterior and interior main control valves of the sprinkler system servicing
Tenant's premises. Moreover, it shall be Tenant's responsibility to contact the
Landlord's property manager, Xxx Xxxxx, at (000) 000-0000, in the event the
sprinkler system in the demised premises is ever shut off for any reason, and
advise same of any damage occasioned or caused by the actions of Tenant, its
agents, invitees, or employees, and/or as a result of Tenant's repair
obligations hereunder. In the event fifty percent (50%) or more of the total
number of sprinkler heads require replacement at any one time as part of
ordinary maintenance, but excluding repairs or replacements that arise from (x)
repairs, installations alterations, or improvements made by or for Tenant or
anyone claiming under Tenant, or (y) the fault or misuse of Tenant or anyone
claiming under Tenant, such cost shall be fifty percent (50%) borne by Landlord
and fifty percent (50%) borne by Tenant. Tenant, at Tenant's sole cost and
expense, shall replace all sprinkler heads due to repairs, installations,
alterations, or improvements made by or for Tenant or anyone claiming under
Tenant, the fault or misuse of Tenant or anyone claiming under Tenant, painting
or environmental exposure from Tenant's operations. All other costs of
maintaining the sprinkler system in the demised premises shall be paid by
Tenant.
(c) If Landlord deems any repair which Tenant is required to make
hereunder to be necessary, Landlord may demand that Tenant make such repair
immediately. If Tenant refuses or neglects to make such repair and to complete
the same with reasonable dispatch, Landlord may make such repair and Tenant
shall, on demand, immediately pay to Landlord the cost of said repair, together
with annual interest at the Interest Rate. Landlord shall not be liable to
Tenant for any loss or damage that may accrue to Tenant's stock or business by
reason of such work or its results.
(d) Neither Tenant nor any of its contractors are permitted access to or
permitted to perform alterations of any kind to the roof of the building.
(e) Tenant shall pay promptly when due the entire cost of work in the
demised premises undertaken by Tenant under this Lease (including, but not
limited to, Tenant's Work and/or alterations permitted under Section 8 of this
Lease) so that the demised premises and the Shopping Center shall at all times
be free of liens for labor and materials arising from such work; to procure all
necessary permits before undertaking any such work; to do all of such work in a
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good and workmanlike manner, employing materials of good quality; to perform
such work only with contractors previously reasonably approved of in writing by
Landlord; to comply with all governmental requirements; and save Landlord and
its agents, officers, employees, contractors and invitees harmless and
indemnified from all liability, injury, loss, cost, damage and/or expense
(including reasonable attorneys' fees and expenses) in respect of any injury to,
or death of, any person, and/or damage to, or loss or destruction of, any
property occasioned by or growing out of any such work.
SECTION 26. COVENANT OF TITLE AND PEACEFUL POSSESSION
Subject to the provisions of Section 12 hereof, Landlord shall, on or
before the date on which Tenant is permitted to install its merchandise and
fixtures in the demised premises, have good and marketable title to the demised
premises in fee simple and the right to make this Lease for the term aforesaid.
At such time, Landlord shall put Tenant into complete and exclusive possession
of the demised premises, and if Tenant shall pay the rental and perform all the
covenants and provisions of this Lease to be performed by the Tenant, Tenant
shall, during the term hereby demised, freely, peaceably, and quietly enjoy and
occupy the full possession of the demised premises and the common facilities of
the Shopping Center, subject, however, to the terms and conditions of this
Lease.
SECTION 27. TENANT'S AND LANDLORD'S INSURANCE; INDEMNITY
(a) Tenant's Property Insurance. Tenant agrees to procure and maintain
during the demised term a property insurance policy written on the causes of
loss-special form (also referred to as the special extended coverage form), or
the most broad property insurance form then available, insuring against loss of,
or damage to, Tenant's property, in, on or about the demised premises. Such
property insurance shall include coverage (whether by additional policies,
endorsements or otherwise): (i) against earthquake and flood; (ii) for plate
glass; (iii) in an amount equal to the full insurable replacement cost, without
deduction for depreciation; (iv) with an agreed valuation provision in lieu of,
or in an amount sufficient to satisfy, any co-insurance clause; (v) against
inflation (also known as inflation guard); (vi) for any costs due to ordinances
or laws; and (vii) as Landlord may from time to time reasonably require Tenant
to procure and maintain. Landlord shall not be liable for any damage to Tenant's
property in, on or about the demised premises caused by fire or other insurable
hazards regardless of the nature or cause of such fire or other casualty, and
regardless of whether any negligence of Landlord or Landlord's employees or
agents contributed thereto. Tenant expressly releases Landlord of and from all
liability for any such damage and Tenant agrees that its property insurance
policies required hereunder shall include a waiver of subrogation recognizing
this release from liability.
(b) Boiler and Machinery Insurance. Tenant agrees to maintain a
comprehensive boiler and machinery policy on a full repair and replacement cost
basis, and further in accordance with the requirements of Section
27(a)(iii)-(vi) above, with an admitted, reputable insurance carrier covering
property damage as a result of a loss from boiler(s), pressure vessel(s), HVAC
equipment, or other electrical or mechanical apparatus within or servicing the
demised premises, furniture, fixtures, equipment and inventory together with
property of others in the care, custody and control of Tenant. The deductible
for property damage under such policy shall not exceed Five Thousand Dollars
($5,000.00) per occurrence.
(c) Additional Tenant Insurance. Tenant's insurance required under Section
(27(a) and (b) above shall also include business income coverage against any
interruption (including utility interruption) in Tenant's business (whether
direct, indirect, contingent or interdependent), including, but not limited to,
coverage for Tenant's leasehold interests and obligations to continue paying all
rental amounts hereunder, lost revenues and income, and extra expense. Such
coverage should be for a period of at least twelve (12) months, with an extended
period of indemnity of at least thirty (30) days. The deductible for such
coverage may not exceed twenty-four (24) hours.
(d) Tenant's Commercial General Liability Insurance. Tenant agrees to
procure and maintain during the demised term commercial general liability
insurance by a responsible insurance company or companies, with policy limits of
not less than $1,000,000.00 per occurrence and $2,000,000.00 annual aggregate,
and $500,000.00 limits for fire and legal
15
liability, insuring against liability for losses, claims, demands or actions for
bodily injury (including death) and property damage arising from Tenant's
conduct and operation of its business in and Tenant's use, maintenance and
occupancy of, the demised premises and any areas adjacent thereto, or the acts
or omissions of Tenant's employees and agents. Such commercial general liability
policy may be written on a blanket basis to include the demised premises in
conjunction with other premises owned or operated by Tenant but shall be written
such that the required policy limits herein specifically apply on a per location
basis to the demised premises. Tenant's commercial general liability insurance
policy shall further provide: (i) coverage for defense costs (in excess of
policy limits); (ii) contractual liability coverage; (iii) cross-liability
coverage; and, (iv) that Landlord, its shareholders, officers, directors,
employees, and agents, are named as additional insureds such that (Y) Tenant's
policy shall be the primary source of insurance for such additional insured and
(Z) any liability policy carried by such additional insureds shall be in excess
of, and will not contribute with or to, Tenant's commercial general liability
insurance required to be maintained hereunder. At the time this Lease is
executed and thirty (30) days prior to the expiration of such insurance policy,
Tenant shall furnish to Landlord certificates of insurance evidencing the
continuous existence during the term of this Lease of Tenant's commercial
general liability insurance coverage, which certificates shall include
attachment of additional insured endorsement, name any and all non-standard
exclusions or limitations, and provide not less than thirty (30) days notice of
cancellation or termination to Landlord (and any other additional insured, if
applicable). All insurance companies must be licensed to do business in the
state where the premises are located. Tenant shall further procure and maintain
other liability insurance (including, but not limited to, liquor and pollution
insurance) as Landlord may from time to time reasonably require.
(e) Worker's Compensation. Tenant agrees to provide and keep in force at
all times worker's compensation insurance complying with the law of the state in
which the premises are located. Tenant agrees to defend, indemnify and hold
harmless Landlord from all actions or claims of Tenant's employees or employee's
family members. Tenant agrees to provide a certificate as evidence of proof of
worker's compensation coverage.
If Tenant hires contractors to do any improvements on the demised
premises, each contractor must provide proof of worker's compensation coverage
on its employees and agents to Landlord.
(f) Contingent Liability and Builder's Risk Insurance. With respect to any
alterations or improvements by Tenant, Tenant shall maintain contingent
liability and builder's risk coverage naming Landlord as an additional insured,
in compliance with the additional insured requirements set forth in Section
27(d).
(g) Landlord's Property Insurance. Commencing as of the Commencement Date,
and thereafter throughout the term of this Lease, Landlord shall, at Landlord's
sole cost and expense, provide and maintain or cause to be provided and
maintained a property insurance policy insuring all buildings (and building
additions) and other improvements in the Center and in the demised premises, and
Tenant's store building (including any permanent improvements to the demised
premises paid for by the Tenant Reimbursement but excluding those items insured
by Tenant as required under this Section 27) for all the hazards and perils
normally covered by the Causes of Loss-Special Form. Said property insurance
policy shall include endorsements for coverage against: (i) earthquake and flood
(including, but not limited to, mud slide, flood hazard or fault area(s), as
designated on any map prepared or issued for such purpose by any governmental
authority); and (ii) increased costs of construction and demolition due to law
and ordinance. The foregoing property coverage shall be provided in amounts
sufficient to provide one hundred percent (100%) of the full replacement cost of
all buildings (and building additions) and other improvements in the Center and
in the demised premises and Tenant's store building (including any permanent
improvements to the demised premises paid for by Tenant Reimbursement but
excluding those items insured by Tenant as required under this Section 27). If
for any reason the Causes of Loss-Special Form is not customarily used in the
insurance industry, then the property insurance policy then in effect shall at
least provide coverage for the following perils: fire, lightning, windstorm and
hail, explosion, smoke, aircraft and vehicles, riot and civil commotion,
vandalism and malicious mischief, sprinkler leakage, sinkhole and collapse,
volcanic action, earthquake or earth movement, and flood, and increased costs of
construction and demolition due to law, ordinance and inflation. Neither Tenant
nor any of its
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affiliates or subtenants shall be liable to Landlord for any loss or damage
(including loss of income), regardless of cause, resulting from fire, flood, act
of G-d or other casualty.
(h) Landlord's Commercial General Liability Insurance. Commencing as of
the Commencement Date, and thereafter throughout the term of this Lease,
Landlord shall, at Landlord's sole cost and expense, provide and maintain or
cause to be provided and maintained a commercial general liability policy,
naming Landlord as an insured (and naming Tenant as an additional insured, said
additional insured's coverage under Landlord's commercial general liability
policy to be primary), protecting Landlord, the business operated by Landlord,
and any additional insureds (including Tenant) against claims for bodily injury
(including death) and property damage occurring upon, in or about the Center
(other than the demised premises and those areas insured by other tenants at the
Center), including Common Areas. Such insurance shall afford protection to the
limits of not less than One Million Dollars ($1,000,000.00) per occurrence, Two
Million Dollars ($2,000,000.00) annual aggregate, and Five Hundred Thousand
Dollars ($500,000.00) with respect to property damage for fire legal liability.
All liability policies shall be written on an occurrence form unless such form
is no longer customarily used in the insurance industry. Landlord may use
commercially reasonable deductibles Landlord customarily carries in the conduct
of its business; however, the amount of such deductibles which may be charged to
Tenant pursuant to Section 12.09 below may not exceed $0.20 per square foot of
gross leasable area of the demised premises in any lease year.
(i) Landlord's Umbrella. Commencing as of the Commencement Date, and
thereafter throughout the term of this Lease, Landlord shall, at Landlord's sole
cost and expense, provide and maintain or cause to be provided and maintained an
umbrella liability insurance policy with a Ten Million Dollar ($10,000,000.00)
minimum annual aggregate, which umbrella policy (or policies) shall list
Landlord's commercial general liability policy required under this Section 27
and any other liability policy or policies carried by, or for the benefit of,
Landlord as underlying policies. Said umbrella liability policy shall also name
Tenant as an additional insured (said additional insured's coverage under
Landlord's umbrella liability policy to be primary). All liability policies
shall be written on an occurrence form unless such form is no longer customarily
used in the insurance industry.
(j) Tenant Indemnity. Tenant shall indemnify Landlord, Landlord's agents,
employees, officers or directors, against all damages, claims and liabilities
arising from any alleged products liability or from any accident or injury
whatsoever caused to any person, firm or corporation during the demised term in
the demised premises, unless such claim arises from a breach or default in the
performance by Landlord of any covenant or agreement on its part to be performed
under this Lease or, to the extent not required to be insured hereunder, the
negligence of Landlord. The indemnification herein provided shall include all
reasonable costs, counsel fees, expenses and liabilities incurred in connection
with any such claim or any action or proceeding brought thereon.
(k) Landlord Indemnity. Landlord shall indemnify Tenant, Tenant's
officers, directors, employees and agents against all damages, claims and
liabilities arising from any accident or injury whatsoever caused to any person,
firm or corporation during the demised term in the common areas of the Shopping
Center, unless such claim arises from a breach or default in the performance by
Tenant of any covenant or agreement on Tenant's part to perform under this Lease
or, to the extent not required to be insured hereunder, the negligence of
Tenant. The indemnification herein provided shall include all reasonable costs,
counsel fees, expenses and liabilities incurred in connection with any such
claim or any action or proceeding brought thereon.
SECTION 28. REAL ESTATE TAXES
(a) Tenant shall pay Tenant's Proportionate Share (as defined in Section
16(c) above) of any "real estate taxes" (defined in Section 28(b) below) imposed
upon the Shopping Center that become due and payable during each lease year
included within the period commencing with the commencement date and ending with
the expiration of the term of this Lease. Tenant shall initially pay to landlord
as additional rental, simultaneously with the payment of minimum rental called
for under Section 5(a), the estimated monthly amount of Tenant's Proportionate
Share of real estate taxes as set forth in Section 5(e) of One and 06/100
Dollars ($1.06) per square foot,
17
payable in equal monthly installments of Two Thousand Three Hundred Four and
00/100 Dollars ($2,304.00) as the estimated amount of Tenant's Proportionate
Share of real estate taxes. Within one hundred twenty (120) days after the end
of each accounting year (which Landlord may change from time to time), Landlord
shall provide Tenant with an annual reconciliation of real estate taxes and a
statement of the actual amount of Tenant's Proportionate Share thereof. Any
excess payments from Tenant shall be applied to the next installments of real
estate taxes hereunder, or refunded by Landlord. Any underpayments by Tenant
shall be paid to Landlord within thirty (30) days after receipt of such
reconciliation statement. Tenant's estimated monthly installment of real estate
taxes payable hereunder may be adjusted by written notice from Landlord.
(b) For the purpose of this Lease, the term "real estate taxes" shall
include any special and general assessments, water and sewer rents and other
governmental impositions imposed upon or against the Shopping Center of every
kind and nature whatsoever, extraordinary as well as ordinary, foreseen and
unforeseen and each and every installment thereof, which shall or may during the
lease term be levied, assessed or imposed upon or against such Shopping Center
and of all expenses, including reasonable attorneys' fees, administrative
hearing and court costs incurred in contesting or negotiating the amount,
assessment or rate of any such real estate taxes, minus any refund received by
Landlord.
(c) Notwithstanding any provision of this Lease to the contrary, Tenant
shall not be obligated to pay for any assessment for special improvements
heretofore installed or in the process of installation in connection with the
initial development of the Shopping Center, and Landlord hereby agrees to pay
for the same.
(d) The real estate taxes for any lease year shall be the real estate
taxes that become due and payable during such lease year. If any lease year
shall be greater than or less than twelve (12) months, or if the real estate tax
year shall be changed, an appropriate adjustment shall be made. If there shall
be more than one taxing authority, the real estate taxes for any period shall be
the sum of the real estate taxes for said period attributable to each taxing
authority. If, upon the assessment day for real estate taxes for any tax year
fully or partly included within the term of this Lease, a portion of such
assessment shall be attributable to buildings in the process of construction, a
fair and reasonable adjustment shall be made to carry out the intent of this
Section 28.
(e) Upon request, Landlord shall submit to Tenant true copies of the real
estate tax xxxx for each tax year or portion of a tax year included within the
term of this Lease and shall xxxx Tenant for the amount to be paid by Tenant
hereunder. Said xxxx shall be accompanied by a computation of the amount payable
by Tenant and such amount shall be paid by Tenant within thirty (30) days after
receipt of said xxxx.
(f) Should the State of Michigan or any political subdivision thereof or
any governmental authority having jurisdiction thereof, impose a tax and/or
assessment (other than an income or franchise tax) upon or against the rentals
payable hereunder, in lieu of or in addition to assessments levied or assessed
against the demised premises, or Shopping Center, then such tax and/or
assessment shall be deemed to constitute a tax on real estate for the purpose of
this Section 28.
SECTION 29. TENANT'S INSURANCE CONTRIBUTION
Tenant shall pay as additional rent, Tenant's Proportionate Share (as
defined in Section 16(c) above) of the premiums for the insurance maintained by
Landlord on all buildings and improvements, as well as liability insurance, for
the Shopping Center, including the common areas, as set forth above in Section
16(b), for each lease year during the term of this Lease. The premiums for the
first and last lease years shall be prorated. Tenant shall pay Tenant's
Proportionate Share of such premiums annually upon demand for such payment by
Landlord. Tenant's Proportionate Share thereof shall be paid by Tenant within
thirty (30) days after Landlord's demand therefore. Tenant shall initially pay
to Landlord as additional rental, simultaneously with the payment of minimum
rental called for under Section 5(a), the estimated monthly amount of Tenant's
Proportionate Share of such insurance premiums as set forth in Section 5(e), of
Fifteen Cents ($0.15) per square foot, payable in equal monthly installments of
18
Three Hundred Twenty-six and 04/100 Dollars ($326.04) as the estimated amount of
Tenant's Proportionate Share of such insurance premiums. Within one hundred
twenty (120) days after the end of each accounting year (which Landlord may
change from time to time), Landlord shall provide Tenant with a reconciliation
of the premiums for the insurance maintained by Landlord hereunder and a
statement of the actual amount of Tenant's Proportionate Share thereof. Any
excess payments from Tenant shall be applied to the next installments of
insurance premiums payable by Tenant hereunder, or refunded by Landlord. Any
underpayments by Tenant shall be paid to Landlord within thirty (30) days after
receipt of such reconciliation statement. Tenant's monthly installment of
insurance premiums payable hereunder may be adjusted by written notice from
Landlord.
SECTION 30. FIXTURES
Provided that Tenant shall repair any damage caused by removal of its
property and provided that the Tenant is not in default under this Lease, Tenant
shall have the right to remove from the demised premises all of its signs,
shelving, electrical, and other fixtures and equipment, window reflectors and
backgrounds and any and all other trade fixtures which it has installed in and
upon the demised premises.
SECTION 31. SURRENDER
The Tenant covenants and agrees to deliver up and surrender to the
Landlord the physical possession of the demised premises upon the expiration of
this Lease or its termination as herein provided in as good condition and repair
as the same shall be at the commencement of the initial term, loss by fire
and/or ordinary wear and tear excepted, and to deliver all of the keys to
Landlord or Landlord's agents.
SECTION 32. HOLDING OVER
There shall be no privilege of renewal hereunder (except as specifically
set forth in this Lease) and any holding over after the expiration by the Tenant
shall be from day to day on the same terms and conditions (with the exception of
rental which shall be prorated on a daily basis at twice the daily rental rate
of the most recent expired term) at Landlord's option; and no acceptance of rent
by or act or statement whatsoever on the part of the Landlord or his duly
authorized agent in the absence of a written contract signed by Landlord shall
be construed as an extension of the term or as a consent for any further
occupancy.
SECTION 33. NOTICE
Whenever under this Lease provisions are made for notice of any kind to
Landlord, it shall be deemed sufficient notice and sufficient service thereof if
such notice to Landlord is in writing, addressed to Landlord at x/x Xxxxx Xxxxxx
Xxxxxxxxxxx, 0000 Xxx Xxxx Xxxx Road, Suite 100, New Hyde Park, N.Y. 11042, or
at such address as Landlord may notify Tenant in writing, and deposited in the
United States mail by certified mail, return receipt requested, with postage
prepaid or Federal Express, Express Mail or such other expedited mail service as
normally results in overnight delivery, with a copy of same sent in like manner
to President, Real Estate, 0000 Xxxxx Xxxx, Xxxxxxxx, Xxxx 00000. Notice to
Tenant shall be sent in like manner to 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000, with copies of same sent to (i) General Counsel, 0000 Xxxxxxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000-0000 and (ii) Xxxxxxx X. Xxxxx, Esq., Schottenstein Zox &
Xxxx, 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000. All notices shall be effective upon
receipt or refusal of receipt. Either party may change the place for service of
notice by notice to the other party.
SECTION 34. DEFAULT
(a) Elements of Default: The occurrence of any one or more of the
following events shall constitute a default of this Lease by Tenant:
1. Tenant fails to pay any monthly installment of rent within ten (10)
days after the same shall be due and payable, except for the first two (2) times
in any consecutive twelve (12)
19
month period, in which event Tenant shall have five (5) days after receipt of
written notice of such failure to pay before such failure shall constitute a
default;
2. Tenant fails to perform or observe any term, condition, covenant or
obligation required to be performed or observed by it under this Lease for a
period of twenty (20) days after notice thereof from Landlord; provided,
however, that if the term, condition, covenant or obligation to be performed by
Tenant is of such nature that the same cannot reasonably be cured within twenty
(20) days and if Tenant commences such performance or cure within said twenty
(20) day period and thereafter diligently undertakes to complete the same, then
such failure shall not be a default hereunder if it is cured within a reasonable
time following Landlord's notice, but in no event later than forty-five (45)
days after Landlord's notice.
3. If Tenant refuses to take possession of the demised premises as
required pursuant to this Lease or abandons the demised premises for a period of
thirty (30) days or substantially ceases to operate its business or to carry on
its normal activities in the demised premises as required pursuant to this
Lease.
4. A trustee or receiver is appointed to take possession of substantially
all of Tenant's assets in, on or about the demised premises or of Tenant's
interest in this Lease (and Tenant or any guarantor of Tenant's obligations
under this Lease does not regain possession within sixty (60) days after such
appointment); Tenant makes an assignment for the benefit of creditors; or
substantially all of Tenant's assets in, on or about the demised premises or
Tenant's interest in this Lease are attached or levied upon under execution (and
Tenant does not discharge the same within sixty (60) days thereafter).
5. A petition in bankruptcy, insolvency, or for reorganization or
arrangement is filed by or against Tenant or any guarantor of Tenant's
obligations under this Lease pursuant to any Federal or state statute, and, with
respect to any such petition filed against it, Tenant or such guarantor fails to
secure a stay or discharge thereof within sixty (60) days after the filing of
the same.
(b) Landlord's Remedies: Upon the occurrence of any event of default,
Landlord shall have the following rights and remedies, any one or more of which
may be exercised without further notice to or demand upon Tenant:
1. Landlord may re-enter the demised premises and cure any default of
Tenant, in which event Tenant shall reimburse Landlord for any cost and expenses
which Landlord may incur to cure such default; and Landlord shall not be liable
to Tenant for any loss or damage which Tenant may sustain by reason of
Landlord's action.
2. Landlord may terminate this Lease or Tenant's right to possession under
this Lease as of the date of such default, without terminating Tenant's
obligation to pay rent due hereunder, in which event (A): neither Tenant nor any
person claiming under or through Tenant shall thereafter be entitled to
possession of the demised premises, and Tenant shall immediately thereafter
surrender the demised premises to Landlord; (B) Landlord may re-enter the
demised premises and dispose Tenant or any other occupants of the demised
premises by force, summary proceedings, ejectment or otherwise, and may remove
their effects, without prejudice to any other remedy which Landlord may have for
possession or arrearages in rent; and (C) notwithstanding a termination of this
Lease, Landlord may re-let all or any part of the demised premises for a term
different from that which would otherwise have constituted the balance of the
term of this Lease and for rent and on terms and conditions different from those
contained herein, whereupon Tenant shall immediately be obligated to pay to
Landlord as liquidated damages the difference between the rent provided for
herein and that provided for in any lease covering a subsequent re-letting of
the demised premises, for the period which would otherwise have constituted the
balance of the term of this Lease, together with all of Landlord's costs and
expenses for preparing the demised premises for re-letting, including all
repairs, tenant finish improvements, broker's and attorney's fees, and all loss
or damage which Landlord may sustain by reason of such termination, re-entry and
re-letting, it being expressly understood and agreed that the liabilities and
remedies specified herein shall survive the termination of this Lease.
Notwithstanding a termination of this Lease by Landlord, Tenant shall remain
liable for payment of all rentals and other charges and costs imposed on Tenant
herein, in the amounts, at the times and upon the conditions as herein provided.
Landlord shall credit against such liability of the
20
Tenant all amounts received by Landlord from such re-letting after first
reimbursing itself for all reasonable costs incurred in curing Tenant's defaults
and re-entering, preparing and refinishing the demised premises for re-letting,
and re-letting the demised premises.
3. Upon termination of this Lease pursuant to Section 34(b)2, Landlord may
recover possession of the demised premises under and by virtue of the provisions
of the laws of the State of Michigan, or by such other proceedings, including
reentry and possession, as may be applicable.
4. If the Tenant shall not remove all of Tenant's property from said
demised premises as provided in this Lease, Landlord, at its option, may remove
any or all of said property in any manner that Landlord shall choose and store
same without liability for loss thereof, and Tenant will pay the Landlord, on
demand, any and all reasonable expenses incurred in such removal and storage of
said property for any length of time during which the same shall be in
possession of Landlord or in storage, or Landlord may, upon thirty (30) days
prior notice to Tenant, sell any or all of said property in such manner and for
such price as the Landlord may reasonably deem best and apply the proceeds of
such sale upon any amounts due under this Lease from the Tenant to the Landlord,
including the reasonable expenses of removal and sale.
5. Any damage or loss of rent sustained by Landlord may be recovered by
Landlord, at Landlord's option, at the time of the reletting, or in separate
actions, from time to time, as said damage shall have been made more easily
ascertainable by successive relettings, or at Landlord's option in a single
proceeding deferred until the expiration of the term of this Lease (in which
event Tenant hereby agrees that the cause of action shall not be deemed to have
accrued until the date of expiration of said term) or in a single proceeding
prior to either the time of reletting or the expiration of the term of this
Lease.
6. In the event of a breach by Tenant of any of the covenants or
provisions hereof, Landlord shall have the right of injunction and the right to
invoke any remedy allowed at law or in equity as if reentry, summary
proceedings, and other remedies were not provided for herein. Mention in this
Lease of any particular remedy shall not preclude Landlord from any other
remedy, in law or in equity. Tenant hereby expressly waives any and all rights
of redemption granted by or under any present or future laws in the event of
Tenant being evicted or dispossessed for any cause, or in the event of Landlord
obtaining possession of the demised premises by reason of the violation by
Tenant of any of the covenants and conditions of this Lease or other use.
7. Tenant hereby expressly waives any and all rights of redemption granted
by or under any present or future laws, in the event of eviction or
dispossession of Tenant by Landlord under any provision of this Lease. No
receipt of monies by Landlord from or for the account of Tenant or from anyone
in possession or occupancy of the demised premises after the termination of this
Lease or after the giving of any notice shall reinstate, continue or extend the
term of this Lease or affect any notice given to the Tenant prior to the receipt
of such money, it being agreed that after the service of notice or the
commencement of a suit, or after final judgment for possession of said demised
premises, the Landlord may receive and collect any rent or other amounts due
Landlord and such payment shall not waive or affect said notice, said suit or
said judgment.
(c) Additional Remedies and Waivers: The rights and remedies of Landlord
set forth herein shall be in addition to any other right and remedy now or
hereinafter provided by law and/or equity and all such rights and remedies shall
be cumulative and shall not be deemed inconsistent with each other, and any two
or more or all of said rights and remedies may be exercised at the same time or
at different times and from time to time without waiver thereof of any right or
remedy provided or reserved to Landlord. No action or inaction by Landlord shall
constitute a waiver of a default and no waiver of default shall be effective
unless it is in writing, signed by the Landlord.
(d) Default by Landlord. Any failure by Landlord to observe or perform any
provision, covenant or condition of this Lease to be observed or performed by
Landlord, if such failure continues for thirty (30) days after written notice
thereof from Tenant to Landlord, shall constitute a default by Landlord under
this Lease, provided, however, that if the nature of such default is such that
the same cannot reasonably be cured within a thirty (30) day period, Landlord
21
shall not be deemed to be in default if it shall commence such cure within such
thirty (30) day period and thereafter rectify and cure such default with due
diligence.
(e) Interest on Past Due Obligations: All monetary amounts required to be
paid by Tenant or Landlord hereunder which are not paid on or before the due
date thereof shall, from and after such due date, bear interest at the Interest
Rate, and shall be due and payable by such party without notice or demand.
(f) Tenant's Remedies. In the event of default by the Landlord with
respect to the demised premises, Tenant shall have the option to cure said
default. Landlord shall reimburse Tenant for the reasonable costs incurred by
Tenant in curing such default within thirty (30) days after invoice thereof by
Tenant, together with reasonable evidence supporting such invoiced amount.
Tenant shall also have any and all rights available under the laws of the state
in which the demised premises are situated; provided, however, that any right of
offset available to Tenant shall be subject to the provisions of Section 36
below.
SECTION 35. WAIVER OF SUBROGATION
Landlord and Tenant, and all parties claiming under each of them, mutually
release and discharge each other from all claims and liabilities arising from or
caused by any casualty or hazard covered or required hereunder to be covered in
whole or in part by insurance coverage required to be maintained by the terms of
this Lease on the demised premises or in connection with the Shopping Center or
activities conducted with the demised premises, and waive any right of
subrogation which might otherwise exist in or accrue to any person on account
thereof. All policies of insurance required to be maintained by the parties
hereunder shall contain waiver of subrogation provisions so long as the same are
available.
SECTION 36. LIABILITY OF LANDLORD; EXCULPATION
(a) Except with respect to any damages resulting from the gross negligence
of Landlord, its agents, or employees, Landlord shall not be liable to Tenant,
its agents, employees, or customers for any damages, losses, compensation,
accidents, or claims whatsoever. The foregoing notwithstanding, it is expressly
understood and agreed that nothing in this Lease contained shall be construed as
creating any liability whatsoever against Landlord personally, and in particular
without limiting the generality of the foregoing, there shall be no personal
liability to pay any indebtedness accruing hereunder or to perform any covenant,
either express or implied, herein contained, or to keep, preserve or sequester
any property of Landlord and that all personal liability of Landlord to the
extent permitted by law, of every sort, if any, is hereby expressly waived by
Tenant, and by every person now or hereafter claiming any right or security
hereunder; and that so far as the parties hereto are concerned, the owner of any
indebtedness or liability accruing hereunder shall look solely to the demised
premises and the Shopping Center for the payment thereof.
(b) If the Tenant obtains a money judgment against Landlord, any of its
officers, directors, shareholders, partners, members or their successors or
assigns under any provisions of or with respect to this Lease or on account of
any matter, condition or circumstance arising out of the relationship of the
parties under this Lease, Tenant's occupancy of the building or Landlord's
ownership of the Shopping Center, Tenant shall be entitled to have execution
upon any such final, unappealable judgment only upon Landlord's fee simple or
leasehold estate in the Shopping Center (whichever is applicable) and not out of
any other assets of Landlord, or any of its officers, directors, shareholders,
members or partners, or their successor or assigns; and Landlord shall be
entitled to have any such judgment so qualified as to constitute a lien only on
said fee simple or leasehold estate.
Notwithstanding the above, Tenant shall have the right to offset any
final, unappealable judgment against twenty five percent (25%) of all minimum
rent and all percentage rental (but no other additional rent components) if not
paid to Tenant by Landlord within thirty (30) days thereafter.
(c) It is expressly agreed that nothing in this Lease shall be construed
as creating any personal liability of any kind against the assets of any of the
officers, directors, members, partners or shareholders of Tenant, or their
successors and assigns.
22
SECTION 37. RIGHTS CUMULATIVE
Unless expressly provided to the contrary in this Lease, each and every
one of the rights, remedies and benefits provided by this Lease shall be
cumulative and shall not be exclusive of any other of such rights, remedies and
benefits or of any other rights, remedies and benefits allowed by law.
SECTION 38. MITIGATION OF DAMAGES
Notwithstanding any of the terms and provisions herein contained to the
contrary, Landlord and Tenant shall each have the duty and obligation to
mitigate, in every reasonable manner, any and all damages that may or shall be
caused or suffered by virtue of defaults under or violation of any of the terms
and provisions of this Lease agreement committed by the other.
SECTION 39. SIGNS
No signs shall be placed on the demised premises by Tenant except as shall
comply with all applicable governmental codes, restrictions of record in
accordance with Section 7 above, sign criteria established by Landlord for the
Shopping Center, and with the prior written consent of Landlord (not to be
unreasonably withheld) after sign drawings have been submitted to Landlord by
Tenant. Subject to the foregoing, Tenant shall have the right to install its
prototypical signage and awnings on the front of the demised premises as
described on Exhibit "G-1" attached hereto and made a part hereof. Tenant shall
be entitled to pylon, monument or other freestanding signage as shown on Exhibit
"G-1" (and any future replacement signage therefore).
SECTION 40. ENTIRE AGREEMENT
This Lease shall constitute the entire agreement of the parties hereto;
all prior agreements between the parties, whether written or oral, are merged
herein and shall be of no force and effect. This Lease cannot be changed,
modified, or discharged orally but only by an agreement in writing signed by the
party against whom enforcement of the change, modification or discharge is
sought.
SECTION 41. LANDLORD'S LIEN - DELETED BY INTENTION
SECTION 42. BINDING UPON SUCCESSORS
The covenants, conditions, and agreements made and entered into by the
parties hereto shall be binding upon and inure to the benefit of their
respective heirs, representatives, successor and assigns.
SECTION 43. HAZARDOUS SUBSTANCES
(a) During the term of this Lease, Tenant shall not suffer, allow, permit
or cause the generation, accumulation, storage, possession, release or threat of
release of any hazardous substance or toxic material, as those terms are used in
the Comprehensive Environmental Response Compensation and Liability Act of 1980,
as amended, and any regulations promulgated thereunder, or any other present or
future federal, state or local laws, ordinances, rules, and regulations. Tenant
shall indemnify and hold Landlord harmless from any and all liabilities,
penalties, demands, actions, costs and expenses (including without limitation
reasonable attorney fees), remediation and response costs incurred or suffered
by Landlord directly or indirectly arising due to the breach of Tenant's
obligations set forth in this Section. Such indemnification shall survive
expiration or earlier termination of this Lease. At the expiration or sooner
termination hereof, Tenant shall return the demised premises to Landlord in
substantially the same condition as existed on the date of commencement hereof
free of any hazardous substances in, on or from the demised premises.
(b) Landlord hereby represents and warrants that, except as set forth in
that certain Phase I Environmental Site Assessment dated March 1, 2002 prepared
by Criterium Engineers, and that certain Phase II Environmental Site Assessment
dated July 7, 1997 prepared by LAW Engineering and Environmental Services, Inc.:
(i) it has not used, generated, discharged, released
23
or stored any hazardous substances on, in or under the Shopping Center and has
received no notice and has no knowledge of the presence in, on or under the
Shopping Center of any such hazardous substances; (ii) to Landlord's knowledge
there have never been any underground storage tanks at the Shopping Center,
whether owned by the Landlord or its predecessors in interest; (iii) to
Landlord's knowledge there have never been accumulated tires, spent batteries,
mining spoil, debris or other solid waste (except for rubbish and containers for
normal scheduled disposal in compliance with all applicable laws) in, on or
under the Shopping Center; (iv) to Landlord's knowledge it has not spilled,
discharged or leaked petroleum products other than de minimis quantities in
connection with the operation of motor vehicles on the Shopping Center; (v) to
Landlord's knowledge there has been no graining, filling or modification of
wetlands (as defined by federal, state or local law, regulation or ordinance) at
the Shopping Center; and (vi) to Landlord's knowledge there is no asbestos or
asbestos-containing material in the demised premises. The representations and
warranties set forth in this subparagraph shall apply to any contiguous or
adjacent property owed by the Landlord. Landlord hereby indemnifies Tenant for
any and all loss, cost, damage or expense to Tenant resulting from any
misrepresentation or breach of the foregoing representations and warranties.
(c) If any such hazardous substances are discovered at the Shopping Center
(unless introduced by the Tenant, its agents or employees) or if any asbestos or
asbestos containing material is discovered in the demised premises (unless
introduced by the Tenant, its agents or employees), and removal, encapsulation
or other remediation is required by applicable laws, the Landlord immediately
and with all due diligence and at no expense to the Tenant shall take all
measures necessary to comply with all applicable laws and to remove such
hazardous substances or asbestos from the Shopping Center and/or encapsulate or
remediate such hazardous substances or asbestos, which removal and/or
encapsulation or remediation shall be in compliance with all environmental laws
and regulations, and the Landlord shall repair and restore the Shopping Center
at its expense. From the date such encapsulation, remediation and restoration is
complete, the rent due hereunder shall be reduced by the same percentage as the
percentage of the demised premises which, in the Tenant's reasonable judgment,
cannot be safely, economically or practically used for the operation of the
Tenant's business. Anything herein to the contrary notwithstanding, if in the
Tenant's reasonable judgment, such removal, encapsulation, remediation and
restoration cannot be completed within one hundred eighty (180) days or the same
is not actually completed by Landlord within such one hundred eighty (180) day
period following the date such hazardous substances or asbestos are discovered
and such condition materially adversely affects Tenant's ability to conduct
normal business operations in the premises, then the Tenant may terminate this
Lease by written notice to the Landlord within thirty (30) days after such 180
day period, which notice shall be effective on Landlord's receipt thereof.
Landlord shall comply with OSHA 29 CFR 1910.1001 (j) to notify tenants,
including Tenant, of asbestos related activities in the demised premises and the
Shopping Center including, but not limited to, selection of the
certified/licensed asbestos abatement contractor, scope of the abatement work,
and final clearance testing procedures and results.
SECTION 44. TRANSFER OF INTEREST
If Landlord should sell or otherwise transfer its interest in the demised
premises, upon an undertaking by the purchaser or transferee to be responsible
for all the covenants and undertakings of Landlord accruing subsequent to the
date of such sale or transfer, Tenant agrees that Landlord shall thereafter have
no liability to Tenant under this Lease or any modifications or amendments
thereof, or extensions thereof, except for such liabilities which might have
accrued prior to the date of such sale or transfer of its interest by Landlord.
SECTION 45. ACCESS TO PREMISES
Landlord and its representatives shall have free access to the demised
premises at all reasonable times for the purpose of: (a) examining the same or
to make any alterations or repairs to the demised premises that Landlord may
deem necessary for its safety or preservation; (b) exhibiting the demised
premises for sale or mortgage financing; (c) during the last three (3) months of
the term of this Lease, for the purpose of exhibiting the demised premises and
putting up the usual notice "for rent" which notice shall not be removed,
obliterated or hidden by Tenant, provided, however, that any such action by
Landlord shall cause as little inconvenience as reasonably practicable and such
action shall not be deemed an eviction or disturbance of Tenant
24
nor shall Tenant be allowed any abatement of rent, or damages for an injury or
inconvenience occasioned thereby.
SECTION 46. HEADINGS
The headings are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope or intent of this
Lease.
SECTION 47. NON-WAIVER
No payment by Tenant or receipt by Landlord or its agents of a lesser
amount than the rent in this Lease stipulated shall be deemed to be other than
on account of the stipulated rent nor shall an endorsement or statement on any
check or any letter accompanying any check or payment of rent be deemed an
accord and satisfaction and Landlord or its agents may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy in this Lease provided.
SECTION 48. SHORT FORM LEASE
This Lease shall not be recorded, but a short form lease, which describes
the property herein demised, gives the term of this Lease and refers to this
Lease, shall be executed by the parties hereto, upon demand of either party and
such short form lease may be recorded by Landlord or Tenant at any time either
deems it appropriate to do so. The cost and recording of such short form lease
shall belong to the requesting party.
SECTION 49. ESTOPPEL CERTIFICATE
Each party agrees that at any time and from time to time on ten (10) days
prior written request by the other, it will execute, acknowledge and deliver to
the requesting party a statement in writing stating that this Lease is
unmodified and in full force and effect (or, if there have been modifications,
stating the modifications, and that the Lease as so modified is in full force
and effect, and the dates to which the rent and other charges hereunder have
been paid, and such other information as may reasonably re requested, it being
intended that any such statements delivered pursuant to this Section may be
relied upon by any current or prospective purchaser of or any prospective holder
of a mortgage or a deed of trust upon or any interest in the fee or any
leasehold or by the mortgagee, beneficiary or grantee of any security or
interest, or any assignee of any thereof or under any mortgage, deed of trust or
conveyance for security purposes now or hereafter done or made with respect to
the fee of or any leasehold interest in the demised premises
SECTION 50. TENANT'S REIMBURSEMENT
(a) Landlord shall pay Tenant Three Hundred Thousand Dollars ($300,000.00)
(the "Tenant Reimbursement"), as payment for all costs incurred on behalf of
Tenant for the purchase, erection, and installation of Tenant Improvements on or
within the demised premises. "Tenant Improvements" shall consist of the work
described in the attached Exhibit "G-2". The Tenant Reimbursement shall be paid
by Landlord to Tenant within ten (10) days of the later of (i) Tenant opening
for business in the demised premises and (ii) Tenant providing to Landlord a
lien waiver from Tenant's general contractor. In the event Landlord does not
timely pay the Tenant Reimbursement to Tenant, (a) Landlord shall pay to Tenant
interest on such unpaid amounts at the Interest Rate and (b) Tenant shall have
the right to deduct any and all such amounts owed Tenant against payments of
Rent thereafter due Landlord until such time as Tenant has been credited the
full amount of the Tenant Reimbursement plus applicable interest.
(b) Notwithstanding anything to the contrary contained in this Lease, the
Tenant Improvements shall, at all times during the term of this Lease and upon
the expiration or earlier termination of this Lease, be the property of
Landlord. Tenant shall not acquire any interest, equitable or otherwise, in any
Tenant Improvement.
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SECTION 51. TENANT'S TERMINATION RIGHT;
In the event (x) that Tenant's gross sales (as defined in Section 6 of
this Lease) shall be less than Four Million Five Hundred Thousand Dollars
($4,500,000.00) in either of the eighth (8th) or ninth (9th) lease years of the
initial term hereof, and (y) Tenant was open and operating for business for the
Permitted Use during the Shopping Center's standard business days and hours
during the eighth (8th) and ninth (9th) lease years (unless Tenant was not open
and operating on account of casualty or condemnation), Tenant shall have the
right, at Tenant's sole election, provided that Tenant is not then in default of
the terms of this Lease beyond any applicable notice and cure periods, on or
before the date (the "Last Termination Notice Date") which is thirty (30) days
after the end of the ninth (9th) lease year, to send to Landlord a notice
terminating this Lease as of the last day of the tenth (10th) lease year (the
"Tenant's Termination Date"). In the event that Tenant shall so terminate this
Lease in accordance with the provisions of this Section 51, then the term of
this Lease shall terminate and expire on Tenant's Termination Date with the same
force and effect as though said date was the scheduled expiration date of the
term under this Lease. Notwithstanding the giving of such termination notice and
Tenant's exercise of its termination right under this Section 51, Tenant shall
perform and observe all of Tenant's obligations under this Lease through and
including the Tenant's Termination Date and Tenant shall pay to Landlord, on or
before the Tenant's Termination Date, the sum of One Hundred Thousand Dollars
($100,000.00). In the event Tenant exercises the termination right provided for
in this Section 51, Landlord shall have the right, upon ten (10) days prior
written notice, at Tenant's corporate headquarters, to examine Tenant's books
and records relating to gross sales at the demised premises, provided such right
shall expire sixty (60) days after Tenant notifies Landlord of Tenant's exercise
of Tenant's election to terminate the Lease pursuant to the provisions of this
Section 51.
SECTION 52. NO BROKER
Landlord and Tenant each represent to the other that they have not entered
into any agreement or incurred any obligation in connection with this
transaction which might result in the obligation to pay a brokerage commission
to any broker. Each party shall indemnify and hold the other party harmless from
and against any claim or demand by any broker or other person for bringing about
this Lease who claims to have dealt with such indemnifying party, including all
expenses incurred in defending any such claim or demand (including reasonable
attorney's fees).
SECTION 53. UNAVOIDABLE DELAYS
In the event either party hereto (the "Delayed Party") shall be delayed or
hindered in or prevented from the performance of any act required under this
Lease by reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, the unforeseen application of restrictive
governmental laws or regulations, riots, insurrection, war, acts of terrorism or
other reason of a like nature not the fault of the Delayed Party in performing
work or doing acts required under the terms of this Lease, then performance of
such act shall be excused for the period of the delay, and the period for the
performance of any such act shall be extended for a period equivalent to the
period of such delay, provided that the Delayed Party notified the other party
within fifteen (15) days of the Delayed Party being informed of the occurrence
of the event causing such delay. The provisions of this Section 53 shall not
operate to excuse either party from the payment of any rental or other monetary
sums due under the terms of this Lease.
SECTION 54. TIMELY EXECUTION OF LEASE
Landlord and Tenant agree that this Lease, and the parties' obligations
hereunder, shall automatically be null and void and this Lease shall terminate
automatically without further action of the parties if both parties do not
execute this Lease and both parties have not received an original thereof within
sixty (60) days after the date of execution hereof by the first party to execute
this Lease.
SECTION 55. ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than the
entire rent and all other additional rents and charges hereunder shall be deemed
to be other than payment on
26
account of the earliest stipulated rent and other additional rents and charges
hereunder, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment for rent or other additional rent and charges
be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent and other additional rents and charges or pursue any other right or remedy
available to the Landlord.
SECTION 56. WAIVER OF JURY TRIAL
The Landlord, Tenant any Guarantor(s) do hereby knowingly, voluntarily and
intentionally waive the right to a trial by jury of any and all issues either
now or hereinafter provided by law in any action or proceeding between the
parties hereto, or their successors, arising directly or indirectly out of or in
any way connected with this Lease or any of its provisions, the Tenant's use or
occupancy of said premises and/or any claim for personal injury or property
damage including, without limitation, any action to rescind or cancel this
Lease, and any claim or defense asserting that this Lease was fraudulently
induced or is otherwise void or voidable. It is intended that said waiver shall
apply to any and all defenses, rights and/or counterclaims in any action or
proceeding at law or in equity. This waiver is a material inducement for
Landlord and Tenant to enter into this Lease.
SECTION 57. LEASEHOLD FINANCING
(a) Tenant's Financing Rights. Landlord acknowledges and agrees that
Tenant may from time to time during the term, without the consent of Landlord,
mortgage or otherwise finance and encumber, whether by leasehold deed of trust
or mortgage, collateral assignment of this Lease, lease/sublease-back, and/or
assignment/leaseback, any and/or all of its leasehold estate hereunder, and
property and rights in and to the Leased Premises granted to it under this
Lease, as security for the payment of an indebtedness (any and all of which are
herein referred to as a "Leasehold Mortgage" and the holder thereof is herein
referred to as "Leasehold Mortgagee"). Any such Leasehold Mortgage shall be a
lien only upon Tenant's leasehold estate hereunder and Tenant's interests in
this Lease. Leasehold Mortgagee or its assigns may enforce such Leasehold
Mortgage and acquire title to the leasehold estate and Tenant's interest in the
Leased Premises in any lawful way, and in connection therewith Leasehold
Mortgagee may take possession of and rent the Leased Premises.
(b) Cooperation with Leasehold Mortgagee. Tenant shall notify Landlord
(and any Fee Mortgagee, as hereinafter defined in Section 57(c) below), in the
manner hereinafter provided for the giving of notice, of the execution of such
Leasehold Mortgage and the name and place for service of notice upon Leasehold
Mortgagee. Upon such notification of Landlord that Tenant has entered into a
Leasehold Mortgage, Landlord hereby agrees for the benefit of such Leasehold
Mortgagee, and upon written request by Tenant, to execute and deliver to Tenant
and Leasehold Mortgagee: (i) the "Landlord's Agreement" containing terms
substantially identical to the terms of the document so entitled attached hereto
and made a part hereof as Exhibit "H", and (ii) the "Landlord's Waiver"
containing terms substantially identical to the terms of the document so
entitled attached hereto and made a part hereof as Exhibit "I". The covenants,
conditions, terms and agreements of Landlord contained in that certain
Landlord's Agreement, attached hereto as Exhibit "H", and executed by Landlord
in conjunction with this Lease are hereby incorporated by reference into this
Lease and shall be binding upon Landlord and any person or entity who succeeds
to Landlord's interest in this Lease. Landlord further agrees that it will
comply with all of the covenants and obligations contained in said documents.
(c) Fee Mortgagee. Landlord represents to Tenant that as of the date of
this Lease there is no mortgage encumbering Landlord's fee interest in the
Shopping Center, and that there will not be such a mortgage for at least sixty
(60) days after the date this Lease is fully executed by Landlord and Tenant.
27
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day
and year first above written.
SIGNED AND ACKNOWLEDGED
IN THE PRESENCE OF: LANDLORD:
K&S MAPLE HILL MALL, L.P.,
a Delaware limited partnership
By: Kimco Maple Hill 138, Inc.,
its General Partner
/s/ Xxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------- ----------------------------------
Print Name: Xxxxx Xxxxx Name: XXXXXXX XXXXXXX
Title: Vice President
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Print Name: XXXXX X. XXXXXXX
TENANT:
SHONAC CORPORATION,
an Ohio corporation
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx XxXxxxxxx
-------------------------------------- ----------------------------------
Print Name: Xxxxxxx Xxxxxx Xxxxxxx XxXxxxxxx
/s/ Xxxxxx Xxxxxx Its: Vice President of Real Estate
--------------------------------------
Print Name: Xxxxxx Xxxxxx
28
STATE OF NY :
:SS.
COUNTY OF XXXXXX :
The foregoing instrument was acknowledged before me this 24th day of
September, 2004, by Xxxxxxx Xxxxxxx, the Vice President of Kimco Maple Hill 138,
Inc., a(n) Delaware corporation, general partner of K&S Maple Hill Mall, L.P., a
Delaware limited partnership, for and on behalf of said limited partnership.
/s/ Xxxxxxxx X. Xxxxxxx
--------------------------------
Notary Public
XXXXXXXX X. XXXXXXX
Notary Public, State of New York
No. 01GA4721128
Qualified in Suffolk County
My Commission Expires 4/30/06
STATE OF OHIO :
: SS.
COUNTY OF FRANKLIN :
The foregoing instrument was acknowledged before me this 14 day of Sept.,
2004, by Xxxxxxx XxXxxxxxx, VP of Real Estate of Shonac Corporation, an Ohio
corporation, for and on behalf of said corporation.
/s/ Xxxxxxx Xxxxxx
--------------------------------
NotaryPublic
XXXXXXX XXXXXX
MY COMMISSION EXPIRES ON 9/17/06
NOTARY PUBLIC - STATE OF OHIO
29
[SITE PLAN]
EXHIBIT A-1
EXHIBIT A-2
The Land referred to in this policy is located in XXXXXXX XXXXXXXX, Xxxxxx 000
Xxxxxx, Xxxxx of Michigan and is described as follows:
PARCEL NO. 1A:
A PARCEL OF LAND LOCATED IN THE EAST THREE QUARTERS OF THE SOUTH 1/2 OF
THE NORTHEAST 1/4 OF SECTION 13, TOWN 2 SOUTH, RANGE 12 WEST, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE EAST 1/4 POST OF
SECTION 13, TOWN 2 SOUTH, RANGE 12 WEST; THENCE NORTH ALONG THE EAST LINE
OF SAID SECTION, 75.05 FEET; THENCE SOUTH 87 DEGREES 57 MINUTES 33 SECONDS
WEST PARALLEL TO AND 75.0 FEET NORTH AS MEASURED AT RIGHT ANGLES TO THE
EAST AND WEST 1/4 LINE OF SAID SECTION, 899.73 FEET FOR THE PLACE OF
BEGINNING OF THE LAND HEREINAFTER DESCRIBED (SAID POINT BEING IN XXX XXXXX
XXXX XX XXXX XXXX XXXXXX); THENCE CONTINUING SOUTH 87 DEGREES 57 MINUTES
33 SECONDS WEST ALONG SAID STREET LINE, 100.0 FEET; THENCE NORTH 2 DEGREES
02 MINUTES 27 SECONDS WEST AT RIGHT ANGLES THERETO, 114.0 FEET; THENCE
SOUTH 87 DEGREES 57 MINUTES 33 SECONDS WEST PARALLEL TO SAID 1/4 LINE,
200.0 FEET; THENCE NORTH 2 DEGREES 02 MINUTES 27 SECONDS WEST, 886.0 FEET;
THENCE SOUTH 87 DEGREES 57 MINUTES 33 SECONDS WEST PARALLEL TO SAID EAST
AND WEST 1/4 LINE, 18.5 FEET; THENCE NORTH 2 DEGREES 02 MINUTES 27 SECONDS
WEST, 246.23 FEET TO THE NORTH LINE OF THE SOUTH 1/2 OP THE NORTHEAST 1/4
OF SAID SECTION; THENCE NORTH 87 DEGREES 39 MINUTES 20 SECONDS EAST ALONG
SAID NORTH LINE, 1262.90 FEET TO THE EAST LINE OF SAID SECTION; THENCE
SOUTH ALONG SAID EAST LINE, 50.04 FEET; THENCE SOUTH 87 DEGREES 39 MINUTES
20 SECONDS WEST PARALLEL TO AND 50.0 FEET SOUTH OF, AS MEASURED AT RIGHT
ANGLES TO SAID XXXXX XXXX, XXXXX 0/0, XXXXXXXXX 1/4, 605.11 FEET; THENCE
SOUTH 2 DEGREES 02 MINUTES 27 SECONDS EAST, 154.71 FEET TO A POINT 1120.0
FEET NORTH OF THE EAST AND WEST 1/4 LINE OF SAID SECTION, AS MEASURED AT
RIGHT ANGLES THERETO; THENCE SOUTH 87 DEGREES 57 MINUTES 33 SECONDS WEST
PARALLEL TO SAID 1/4 LINE, 77.5 FEET ; THENCE SOUTH 2 DEGREES 02 MINUTES
27 SECONDS EAST, 931.0 FEET TO A POINT 114.0 FEET NORTH OF THE NORTH LINE
OF WEST MAIN STREET, AS MEASURED AT RIGHT ANGLES THERETO; THENCE SOUTH 87
DEGREES 57 MINUTES 33 SECONDS WEST PARALLEL TO SAID 1/4 LINE, 260.0 FEET;
THENCE SOUTH 2 DEGREES 02 MINUTES 27 SECONDS EAST, 114.0 FEET TO THE PLACE
OF BEGINNING.
PARCEL NO. 1B:
A PARCEL OF LAND LOCATED IN THE EAST THREE QUARTERS OF THE SOUTH 1/2 OF
THE NORTHEAST 1/4 OF SECTION 13, TOWN 2 SOUTH, RANGE 12 WEST, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE EAST 1/4 POST OF
SECTION 13, TOWN 2 SOUTH, RANGE 12 WEST; THENCE NORTH ALONG THE EAST LINE
OF SAID SECTION, 75.05 FEET; THENCE SOUTH 87 DEGREES 57 MINUTES 33 SECONDS
WEST PARALLEL TO AND 75.0 FEET NORTH OF AS MEASURED AT RIGHT ANGLES TO THE
EAST AND WEST 1/4 LINE OF SAID SECTION, 1589.73 FEET; THENCE NORTH 2
DEGREES 02 MINUTES 27 SECONDS WEST AT RIGHT ANGLES THERETO, 1000.0 FEET
FOR THE PLACE OF BEGINNING OF THE LAND HEREINAFTER DESCRIBED; THENCE
CONTINUING NORTH 2 DEGREES 02 MINUTES 27 SECONDS WEST, 244.26 FEET TO THE
NORTH LINE OF THE SOUTH 1/2 OF THE NORTHEAST 1/4 OF SAID SECTION; THENCE
NORTH 87 DEGREES 39 MINUTES 20 SECONDS EAST ALONG SAID NORTH LINE, 371.5
FEET; THENCE SOUTH 2 DEGREES 02 MINUTES 27 SECONDS EAST, 246.23 FEET TO A
POINT 1075.0 FEET NORTH OF SAID EAST AND WEST 1/4 LINE AS MEASURED AT
RIGHT ANGLES THERETO; THENCE SOUTH 87 DEGREES 57 MINUTES 33 SECONDS WEST
PARALLEL TO SAID 1/4 LINE, 371.5 FEET TO THE PLACE OF BEGINNING.
PARCEL NO. 1C:
COMMENCING AT THE EAST 1/4 POST OF SECTION 13, TOWN 2 SOUTH, RANGE 12
WEST; THENCE NORTH ALONG THE EAST LINE OF SAID SECTION, 75.05 FEET; THENCE
SOUTH 87 DEGREES 57 MINUTES 33 SECONDS WEST PARALLEL TO AND 75.0 FEET
NORTH OF AS MEASURED AT RIGHT ANGLES TO THE EAST AND WEST 1/4 LINE OF SAID
SECTION, 2349.73 FEET FOR THE PLACE OF BEGINNING OF THE LAND HEREINAFTER
DESCRIBED (SAID POINT BEING IN XXX XXXXX XXXX XX XXXX XXXX XXXXXX); THENCE
CONTINUING SOUTH 87 DEGREES 57 MINUTES 33 SECONDS WEST ALONG SAID STREET
LINE, 71.96 FEET TO A POINT 208.0 FEET EASTERLY OF THE NORTH AND SOUTH 1/4
LINE OF SAID SECTION; THENCE NORTH 2 DEGREES 02 MINUTES 27 SECONDS WEST,
210.0 FEET; THENCE SOUTH 87 DEGREES 57 MINUTES 33 SECONDS WEST, 167.29
FEET TO A POINT 33.0 FEET EASTERLY OP SAID NORTH AND SOUTH l/4 LINE;
THENCE NORTH 0 DEGREES 03 MINUTES 43 SECONDS EAST PARALLEL TO SAID 1/4
LINE, 260.18 FEET; THENCE NORTH 87 DEGREES 57 MINUTES 33 SECONDS EAST,
439.69 FEET; THENCE SOUTH 2 DEGREES 02 MINUTES 27 SECONDS EAST, 310.0
FEET; THENCE SOUTH 87 DEGREES 57 MINUTES 33 SECONDS, WEST 210.0 FEET;
THENCE SOUTH 2 DEGREES 02 MINUTES 27 SECONDS EAST, 160.0 FEET TO THE PLACE
OF BEGINNING.
PARCEL NO. 1D:
A PARCEL OF LAND LOCATED IN THE EAST 3/4 OF THE SOUTH 1/2 OF THE NORTHEAST
1/4 OF SECTION 13, TOWN 2 SOUTH, RANGE 12 WEST, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS: COMMENCING AT THE EAST 1/4 POST OF SECTION 13, TOWN
2 SOUTH, RANGE 12 WEST; THENCE NORTH ALONG THE EAST LINE OF SAID SECTION
75.05 FEET; THENCE SOUTH 87 DEGREES 57 MINUTES 33 SECONDS WEST PARALLEL TO
AND 75.0 FEET NORTH OF AS MEASURED AT RIGHT ANGLES TO THE EAST AND WEST
1/4 LINE OF SAID SECTION, 1589.73 FEET; THENCE NORTH 02 DEGREES 02 MINUTES
27 SECONDS WEST AT RIGHT ANGLES THERETO, 1000.0 FEET FOR THE PLACE OF
BEGINNING OF THE LAND HEREINAFTER DESCRIBED; THENCE CONTINUING NORTH 02
DEGREES 02 MINUTES 27 SECONDS WEST, 244.26 FEET TO THE NORTH LINE OF THE
SOUTH 1/2 OF THE NORTHEAST 1/4 OF SAID SECTION; THENCE SOUTH 87 DEGREES 39
MINUTES 20 SECONDS WEST ALONG SAID NORTH, 550.00 FEET THENCE SOUTH 02
DECREES 02 MINUTES 27 SECONDS EAST, 241.42 FEET TO A POINT 1075.0 FEET
NORTH OF SAID EAST AND WEST 1/4 LINE AS MEASURED AT LINE RIGHT ANGLES
THERETO; THENCE NORTH 87 DEGREES 57 MINUTES 33 SECONDS EAST PARALLEL TO
SAID 1/4 LINE 550.00 FEET TO THE PLACE OF BEGINNING.
PARCEL NO. 2:
A PARCEL OF LAND LOCATED IN THE EAST 3/4 OF THE SOUTH 1/2 OF THE NORTHEAST
1/4 0F SECTION 13, TOWN 2 SOUTH, RANGE 12 WEST, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS: COMMENCING AT THE EAST 1/4 POST OF SECTION 13, TOWN
2 SOUTH, RANGE 12 WEST; THENCE NORTH ALONG THE EAST LINE OF SAID SECTION,
75.05 FEET; THENCE SOUTH 87 DEGREES 57 MINUTES 33 SECONDS WEST PARALLEL TO
AND 75.0 FEET NORTH OF AS MEASURED AT RIGHT ANGLES TO THE EAST AND WEST
1/4 LINE OF SAID SECTION, 999.73 FEET FOR THE PLACE OF BEGINNING OF THE
LAND HEREINAFTER DESCRIBED (SAID POINT BEING IN XXX XXXXX XXXX XX XXXX
XXXX XXXXXX) ; THENCE CONTINUING SOUTH 87 DEGREES 57 MINUTES 33 SECONDS
WEST ALONG SAID STREET LINE, 200.0 FEET; THENCE NORTH 2 DEGREES 02 MINUTES
27 SECONDS WEST AT RIGHT ANGLES THERETO, 114.0 FEET; THENCE NORTH 87
DEGREES 57 MINUTES 33 SECONDS EAST PARALLEL TO SAID 1/4 LINE, 200.0 FEET;
THENCE SOUTH 2 DEGREES 02 MINUTES 27 SECONDS EAST, 114.0 FEET TO THE PLACE
OF BEGINNING.
PARCEL NO. 3:
COMMENCING AT THE EAST 1/4 POST OF SECTION 13, TOWN 2 SOUTH, RANGE 12
WEST; THENCE NORTH ALONG THE EAST LINE OF SAID SECTION, 75.05 FEET; THENCE
SOUTH 87 DEGREES 57 MINUTES 33 SECONDS WEST PARALLEL TO AND 75 FEET NORTH
OF AS MEASURED AT RIGHT ANGLES TO THE EAST AND WEST 1/4 LINE OF SAID
SECTION, 1979.73 FEET FOR THE PLACE OF BEGINNING OF THE LAND HEREINAFTER
DESCRIBED (SAID POINT BEING IN XXX XXXXX XXXX XX XXXX XXXX XXXXXX); THENCE
CONTINUING SOUTH 87 DEGREES 57 MINUTES 33 SECONDS WEST ALONG SAID STREET
LINE, 160 FEET; THENCE NORTH 2 DEGREES 02 MINUTES 27 SECONDS WEST AT RIGHT
ANGLES THERETO, 160 FEET; THENCE NORTH 87 DEGREES 57 MINUTES 33 SECONDS
EAST PARALLEL TO SAID 1/4 LINE, 160 FEET; THENCE SOUTH 2 DEGREES 02
MINUTES 27 SECONDS EAST, 160 FEET TO THE PLACE OF BEGINNING.
PARCEL NO. 4:
COMMENCING AT THE EAST 1/4 POST OF SECTION 13, TOWN 2 SOUTH, RANGE 12
WEST; THENCE NORTH ALONG THE EAST LINE OF SAID SECTION, 75.05 FEET; THENCE
SOUTH 87 DEGREES 57 MINUTES 33 SECONDS WEST PARALLEL TO AND 75.00 FEET
NORTH OF AS MEASURED AT RIGHT ANGLES TO THE EAST AND WEST 1/4 LINE OF SAID
SECTION, 1199.73 FEET FOR THE PLACE OF BEGINNING OF THE LAND HEREINAFTER
DESCRIBED (SAID POINT BEING IN XXX XXXXX XXXX XX XXXX XXXX XXXXXX); THENCE
CONTINUING SOUTH 87 DEGREES 57 MINUTES 33 SECONDS WEST ALONG SAID STREET
LINE, 390.00 FEET; THENCE NORTH 2 DEGREES 02 MINUTES 27 SECONDS WEST AT
RIGHT ANGLES THERETO, 1000.00 FEET; THENCE NORTH 87 DEGREES 57 MINUTES 33
SECONDS EAST PARALLEL TO SAID 1/4 LINE, 390.00 FEET; THENCE SOUTH 2
DEGREES 02 MINUTES 27 SECONDS EAST, 1000.00 FEET TO THE PLACE OF
BEGINNING.
PARCEL NO. 5:
TOGETHER WITH ALL EASEMENT, RIGHTS, INTERESTS, AND PRIVILEGES INCURRING TO
THE BENEFIT OF SAID PARCELS 1A, 1B, 1D, 2 AND 4 UNDER THAT CERTAIN
RESTATED RECIPROCAL CONSTRUCTION, OPERATION AND EASEMENT AGREEMENT DATED
OCTOBER 29, 1980, BETWEEN JEWEL PROPERTIES VENTURE, FORBES
XXXXX-XXXXXX/KAL ASSOCIATES, ECONOMIC DEVELOPMENT CORPORATION OF THE
COUNTY OF KALAMAZOO, FORBES/XXXXX PROPERTIES, XXXXXXXXXX XXXX & CO.,
INCORPORATED AND KALAWARD PROPERTIES, INC. AND RECORDED OCTOBER 31, 1980
IN LIBER 1107 ON PAGE 519, WHICH WAS AMENDED BY ASSIGNMENT AND ASSUMPTION
OF RESTATED RECIPROCAL CONSTRUCTION, OPERATION AND EASEMENT AGREEMENT
RECORDED AUGUST 24, 1984 IN LIBER 1210 ON PAGE 583 AND AMENDED BY FIRST
AMENDMENT TO RESTATED RECIPROCAL CONSTRUCTION, OPERATION AND EASEMENT
AGREEMENT DATED JULY 23, 1990 AND RECORDED MAY 10, 1991 IN LIBER 1501 ON
PAGE 546, AND AMENDED BY SECOND AMENDMENT TO RESTATED RECIPROCAL
CONSTRUCTION, OPERATION AND EASEMENT AGREEMENT DATED JULY 16, 1993 AND
RECORDED JULY 16, 1993 IN LIBER 1654 ON PAGE 880, KALAMAZOO COUNTY
RECORDS, AND AMENDED BY ASSIGNMENT AND ASSUMPTION OF RECIPROCAL
CONSTRUCTION, OPERATION AND EASEMENT AGREEMENT DATED APRIL 27, 1994 AND
RECORDED APRIL 29, 1994 IN LIBER 1722 ON PAGE 0787; AND TOGETHER WITH THE
RIGHTS AND EASEMENTS CONTAINED IN AGREEMENT BETWEEN GOOD WILL CO., INC.
AND MAPLE HILL MALL ASSOCIATES DATED OCTOBER 19, 1990 AND RECORDED
NOVEMBER 2, 1990 IN LIBER 1480 ON PAGE 965, KALAMAZOO COUNTY RECORDS.
PARCEL NO. 6:
COMMENCING AT THE EAST l/4 POST OF SECTION 13, TOWN 2 SOUTH, RANGE 12
WEST; THENCE NORTH ALONG THE EAST LINE OF SAID SECTION, 75.05 FEET TO THE
NORTH LINE OF M-43; THENCE SOUTH 87 DEGREES 57 MINUTES 33 SECONDS WEST
THEREON, PARALLEL TO AND 75.0 FEET NORTH OF AS MEASURED AT RIGHT ANGLES TO
THE EAST AND WEST 1/4 LINE OF SAID SECTION, 1589.73 FEET; THENCE NORTH 2
DEGREES 02 MINUTES 27 SECONDS WEST, 265.00 FEET FOR THE PLACE OF BEGINNING
OF THE LAND HEREINAFTER DESCRIBED; THENCE CONTINUING NORTH 2 DEGREES 02
MINUTES 27 SECONDS WEST, 735.00 FEET; THENCE 87 DEGREES 57 MINUTES 33
SECONDS WEST, 63.00 FEET; THENCE SOUTH 2 DEGREES 02 MINUTES 27 SECONDS
EAST, 103.40 FEET; THENCE SOUTH 87 DEGREES 57 MINUTES 33 SECONDS WEST,
47.00 FEET; THENCE SOUTH 2 DEGREES 02 MINUTES 27 SECONDS EAST, 79.77 FEET;
THENCE SOUTH 87 DEGREES 57 MINUTES 33 SECONDS WEST, 10.00 FEET; THENCE
SOUTH 2 DEGREES 02 MINUTES 27 SECONDS EAST 241.00 FEET; THENCE NORTH 87
DEGREES 57 MINUTES 33 SECONDS EAST, 30.00 FEET; THENCE SOUTH 2 DEGREES 02
MINUTES 27 SECONDS EAST, 310.03 FEET; THENCE NORTH 87 DEGREES 57 MINUTES
33 SECONDS EAST, 90.00 FEET TO THE PLACE OF BEGINNING.
PARCEL NO. 7:
TOGETHER WITH A NON-EXCLUSIVE EASEMENT AS SET FORTH IN OPERATION AND
EASEMENT AGREEMENT BETWEEN XXXXXX XXXXXX CORPORATION AND GOOD WILL CO.,
INC. RECORDED SEPTEMBER 2, 1993 IN LIBER 1665, PAGE 1229
EXHIBIT "B"
LANDLORD'S WORK
Landlord agrees to construct the demised premises, at Landlord's sole cost and
expense, as described in Tenant's prototypical store construction package as set
forth in plans and specifications prepared by Xxxxxxxxx Architects Incorporated
which has been provided to Landlord, which work shall be consistent with the
preliminary building outline previously provided by Landlord to Tenant.
EXHIBIT C
TENANT'S WORK
Tenant's Work shall consist of performing Tenant's standard fixturing within the
Leased Premises, including, without limitation, the Tenant Improvements (as
defined in Section 50 of the Lease).
EXHIBIT D
EXISTING USE EXCLUSIVES AND PROHIBITED USES
Ann's Hallmark
Use Exclusive: If, during the term of the Lease, (i) any other tenant in the
Shopping Center, (other than Target, Xxxxxxxx, Rite Aid and Xxxxxxxxxx Xxxx), or
their replacements, or any other store occupying more than 20,000 square feet)
shall carry sixty (60) lineal feet or more of either greeting cards, gift wrap
or Christmas ornaments; or (ii) the enclosed mall portion of the Shopping Center
contains a temporary store (a store having a lease term, license or expected
duration of doing business of less than one (1) year) that sells greeting cards,
gift wrap or Christmas ornaments, then Tenant shall only be obligated to pay
Percentage Rent in lieu of any and all other Rent in the amount of five percent
(5%) of Gross Sales during the time that the tenant described in (i) above shall
carry such items in violation hereof, or during the time that the store
described in (ii) above shall be open. In addition, Tenant shall have the
immediate right (in addition to any other rights it may have) to terminate the
Lease upon thirty (30) days written notice to Landlord in the event that the
foregoing use restrictions shall be violated, and Tenant shall vacate the
Premises at the end of such thirty (30) day period. Notwithstanding the
foregoing, Landlord shall be entitled to lease one (1) space in addition to
Tenants' in the Shopping Center to a store similar to that operated by Tenant,
so long as the space occupied by such store shall not exceed 2,500 square feet
of retail sales area and which is located between the Target store and space
numbers 5252 and 5344.
Old Country Buffet
Use Exclusive: Landlord shall not lease space in the Shopping Center to any
other tenant whose primary business conducted in such space is the operation of
a buffet-style restaurant or cafeteria (Tenant agreeing that the foregoing shall
not be deemed to include any traditional "fast food" type restaurants, as such
term is commonly used and understood in the restaurant industry).
Marshalls
Prohibited Uses: Landlord agrees that the Shopping Center shall not be used for
any non-retail purposes (repairs, alterations and offices incidental to
retailing and banks and small loan offices, not being deemed non-retail), or as
a bowling alley, skating rink, bar (which term shall refer to any establishment
deriving greater than fifty percent (50%) of its gross sales from the sale of
alcoholic beverages), nightclub, discotheque, poolroom, massage parlor, sporting
event, sports or game facility, off-track betting club or for any establishment
for the sale or display of pornographic materials, Landlord agrees that no space
in the Shopping Center is contiguous with Tenant's Critical Area (whether an
interior or exterior portion of Tenant's Critical Area) shall be used for any
entertainment purpose such as a cinema, amusement gallery or health club. No
restaurants or establishments selling prepared food for consumption on or off
premises shall be located in any portion of the Shopping Center that is
contiguous with Tenant's Critical Area (whether an interior or exterior portion
of Tenant's Critical Area), provided that, notwithstanding this sentence the
store spaces that are contiguous with Tenant's Critical Area and are shown on
Page 8 of the Plan as "Restaurant" may contain restaurants or establishments
selling prepared food for consumption on or off premises.
Use Exclusive: Landlord agrees that, during the term of this lease, no other
premises in the Shopping Center shall at any time contain more than 20,000
square feet of floor are therein used or occupied for or devoted to the sale or
display of brand name men's and/or women's and/or children's apparel at off
prices or discount prices, including the computation of such floor area one-half
(1/2) of a floor area in any aisles, corridors or similar spaces adjacent to or
abutting any racks, gondolas, shelves, cabinets, counters or other fixtures of
equipment containing or used for the sale or display of soft goods.
Footlocker
Use Exclusive: Landlord grants to Tenant the exclusive right to operate as the
only branded athletic footwear and apparel specialty store in the mall.
American Furniture
Use Exclusive: Landlord will not lease any space within the Center or permit any
space within the Center to be used by any person, persons, partnership or entity
who devotes ten percent (10%) or more of its selling area to the sale of
furniture and mattresses.
Office Max
Use Exclusive: No portion of the Shopping Center shall be leased for the sale of
office, home office, school or business products, computers and computer
products, office, home office, school, business supplies or equipment, office
furniture, portable telephone or pagers; or business or office electronics
(including by way of example those businesses operated by Office Depot, Staples,
Office Shop Warehouse and Workplace), or for use as a business support center,
copy center or "Kinko" type of operation.
Prohibited Uses: No portion of the Building located within two hundred (200)
linear feet of the demising walls of the Demised Premises shall be used as a
restaurant, day care center, bar, tavern, pub or liquor store selling alcoholic
beverages for off-premises consumption, delicatessen, nightclub or other
entertainment facility, bowling alley, arcade, game room, skating rink, billiard
room, theater, movie theater, health club or spa, or for commercial purposes
(such as medical uses), or for any use that requires parking in excess of five
(5) spaces for each one thousand (1,000) square feet of leasable floor area,
provided that restaurants are permitted if not in any instance greater than five
thousand (5,000) square feet of floor area, and provided further that the
"Jeepers" type of entertainment concept shall be permitted within such
restricted area on the north side of the Building.
No portion of the Shopping Center shall be occupied or used, directly or
indirectly, for a bowling alley, skating rink, billiard room, massage parlor,
adult book store or any other purpose which includes the display or sale of
pornographic or obscene materials or entertainment, off-track betting facility,
flea market, ballroom, dance hall, discotheque, beauty school, xxxxxx college,
place of instruction, reading room or any operation catering primarily to
students or trainee rather than to customers.
EXHIBIT E
EXCEPTIONS TO TENANT EXCLUSIVE
Office Max
Marshalls
Hobby Lobby
Value City Furniture
EXHIBIT F
EXCLUDED TENANTS
Office Max
Marshalls
EXHIBIT "G-1"
TENANT'S SIGNAGE
[DSW CONSTRUCTION PLAN]
EXHIBIT G-2
TENANT IMPROVEMENTS
Task Name Fixed Cost
--------------------------------------------------
Carpet/Installation $ 35,000.00
Exterior Store Signage $ 28,000.00
Register Equipment $ 22,500.00
Surveillance Camera Equipment $ 20,000.00
Installation all Carpentry $ 18,000.00
Tax (5.75) $ 16,179.69
Phone System $ 15,000.00
Corrugated Fixtures $ 15,000.00
Tower of Power Rack on Wheels $ 15,000.00
Burglar Alarm System $ 10,000.00
Mirror Benches $ 10,000.00
Juno Track Lighting Accessories $ 8,500.00
Muzak Music System $ 6,500.00
30' Best Flex Conveyor $ 5,500.00
Left Register Counter $ 4,500.00
Tile (VCT) Installation $ 4,500.00
Locker Units $ 4,500.00
Handbag H-Unit $ 4,500.00
6' x 8' DSW Logo $ 4,200.00
14' x 16' Office Counter $ 4,200.00
Right Register Counter $ 3,500.00
DSW Module Office Furniture $ 3,500.00
Tile (Ceramic) Installation $ 3,500.00
Handbag Wall System $ 3,200.00
Low Wood Display Tables $ 2,500.00
High Wood Display Tables $ 2,500.00
Ceramic Entrance Logo $ 2,100.00
Power Lever door hardware $ 1,700.00
Breakroom Cabinet Package $ 1,500.00
Large Accessories Sign $ 1,500.00
Counter Cache $ 1,500.00
30" x 48" Shelves with rails $ 1,500.00
Wall Mirrors $ 1,200.00
Right Register Counter ADA $ 1,200.00
Glass for Office $ 1,200.00
Mat System for Entrance $ 1,200.00
Vacuum $ 1,200.00
DSW Safe $ 1,000.00
Fushion Maple Slatwall $ 1,000.00
U-Boat Carts $ 1,000.00
Three Tier Round Table $ 900.00
DSW Stock Ladder on Wheels $ 750.00
Straight 5 Hook Waterfalls $ 600.00
Chrome Chairs $ 600.00
Promo Tables $ 500.00
Stockroom Uprights $ 500.00
Two Drawer File Cabinet $ 450.00
Time Clock $ 350.00
Locker Pad Locks $ 350.00
Breakroom Chairs $ 350.00
22" x 60" Black Floor Stand $ 350.00
Shoe Risers (sets of 3) $ 300.00
Ladder $ 260.00
TV VCR Combo $ 260.00
Two Xxxxxxx $ 250.00
Acrylic Shoe Prop $ 200.00
Craftman Project Center $ 200.00
6" Slatwall Peghooks $ 160.00
Soap Dispenser $ 120.00
7" x 11" Acrylic Signholder $ 113.00
Coat Rack on Wheels $ 100.00
10" x 24" Glass Shelf $ 95.00
Desk Chair $ 80.00
PETG Sign/Literature Holder $ 79.00
10" Slatwall Adj. Brackets $ 77.00
6' Folding Break Table $ 70.00
11" x 14" Acrylic Signholder $ 60.00
Toe Held Shoe Displayer $ 60.00
X-Braces $ 50.00
Heel Held Shoe Displayer $ 48.00
3" x 47" Acrylic Lip $ 42.00
Receiving Door Decal $ 40.00
5 1/2" x 7" Plexi Signholder $ 39.00
End Support for Acrylic Lips $ 20.00
4" x 10" Display Shelf $ 18.00
Handbag Display Easel $ 15.00
Center Support for Acrylic Lips $ 14.00
7" x 11" Shovel Base $ 10.00
Glass Shelf Boot Clips $ 6.00
============
TOTAL $ 297,565.69
EXHIBIT H
LANDLORD'S AGREEMENT
THIS LANDLORD'S AGREEMENT (THIS "AGREEMENT") is made as of this
____________________ day of ___________________, 2004, by and among CERBERUS
PARTNERS, L.P., a Delaware limited partnership, as collateral agent for the Term
Loan Lenders, the Revolving Credit Lenders and the Convertible Lenders (each as
defined in Schedule A hereto) (in such capacity, together with its successors
and assigns, "Mortgagee"), K&S MAPLE HILL MALL, L.P., a Delaware limited
partnership, ("LANDLORD"), and SHONAC Corporation, an Ohio corporation
("TENANT").
WITNESSETH:
WHEREAS, Tenant is the tenant and Landlord is the landlord under
that certain lease more fully described on Schedule B attached hereto (as same
may have or hereafter be amended, the "LEASE");
WHEREAS, the Lease demises to Tenant, as tenant, certain premises
more particularly described therein (the "PREMISES") located on certain land
described on Schedule C attached hereto (the "CENTER");
WHEREAS, the Term Loan Lenders, the Revolving Credit Lenders and the
Convertible Lenders have extended credit (the "LOAN") to Tenant and certain
affiliates of Tenant pursuant to the loan agreements described on Schedule A
hereto;
WHEREAS, the Loan is secured by, among other things, leasehold
mortgages (collectively, the "LEASEHOLD MORTGAGE"; the Leasehold Mortgage,
together with all amendments, renewals, increases, modifications, replacements,
substitutions, extensions, spreaders and consolidations thereof and all
re-advances thereunder and additions thereto, is referred to as the "MORTGAGE")
encumbering, among other things, Tenant's interest in the Premises;
WHEREAS, Mortgagee has been engaged as a collateral agent with
respect to the Lease and the Mortgage, among other things, by the Term Loan
Lenders, the Revolving Credit Lenders and the Convertible Lenders;
WHEREAS, Mortgagee and Landlord desire to confirm their
understanding and agreement with respect to the Lease and the Mortgage; and
WHEREAS, Tenant is executing this Agreement at the request of
Landlord and Mortgagee to confirm Tenant's acknowledgment of, and agreement
with, the provisions, terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, and of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Mortgagee, Landlord and Tenant hereby agree and covenant as
follows:
1. (A) Anything in the Lease to the contrary notwithstanding,
Landlord agrees that in the event of a default, act or omission by Tenant under
the Lease that would give Landlord the right (whether immediately, after the
lapse of a period of time, after notice or otherwise), to cancel or terminate
the Lease or exercise any of its other rights or remedies under the Lease,
including, without limitation, its right to obtain possession of the Premises,
Landlord shall not exercise such right unless and until (i) Landlord has given
written notice to Tenant of such default, act or omission, (ii) Mortgagee has
been given notice as provided herein of such default, act or omission
simultaneously with the notice given by Landlord as provided in subparagraph (1)
above, and (iii) Mortgagee has failed to cure or remedy the default, act or
omission within Tenant's cure period set forth in the Lease, with the
understanding that such Cure Period shall afford Mortgagee an opportunity to
cure of at least ten (10) days from the date
Mortgagee receives Landlord's notice (the "Cure Period"). Mortgagee shall have
no obligation hereunder to remedy any such default, act or omission.
(B) If Mortgagee (or its nominee or designee) shall succeed to the rights
of Tenant under the Lease through possession, foreclosure action, assignment of
the Lease in lieu of foreclosure, or otherwise, or another person purchases the
leasehold estate in and to the Premises upon or following foreclosure of the
Mortgage or assignment of the Lease in lieu of foreclosure, then,
notwithstanding the terms of the Lease, at the request of Mortgagee (or its
nominee or designee) or such purchaser (Mortgagee, its nominees and designees,
and such purchaser, each being a "SUCCESSOR-TENANT"), and provided that such
Successor-Tenant (i) shall pay to Landlord all unpaid rental due under the
Lease, and (ii) shall cure all defaults existing under the Lease which are
reasonably susceptible of being cured by Successor-Tenant, then Landlord shall
recognize Successor-Tenant as Landlord's tenant under the Lease and shall
promptly execute and deliver any instrument that Successor-Tenant may reasonably
request to evidence such recognition as tenant under the Lease.
Furthermore, the Lease shall continue in full force and effect as, or as
if it were, a direct lease between Successor-Tenant and landlord, upon all
terms, conditions and covenants as are set forth in the Lease, except that
Successor-Tenant shall not be bound by any modification of the Lease unless such
modification shall have been expressly approved in writing by Mortgagee.
Mortgagee shall not unreasonably withhold, delay or condition its consent to any
modifications of the Lease, provided such modifications do not (a) adversely
affect Mortgagee's security interest in the Lease, (b) materially impair the
financeability of the Lease or (c) materially impair the value of the Lease as
collateral to Mortgagee.
(C) In the case of termination of the Lease by reason of any default
or for any other reason (including, but not Limited to, rejection of the Lease
in a bankruptcy proceeding), Landlord shall give prompt notice thereof to
Mortgagee. Landlord, on written request of Mortgagee made any time within thirty
(30) days after the giving of such notice by Landlord, shall promptly execute
and deliver a new lease (the "NEW LEASE") of the Premises to the
Successor-Tenant for the remainder of the term of the Lease upon all the
covenants, conditions, limitations and agreements contained in the Lease,
provided that such Successor-Tenant (i) shall pay to Landlord, simultaneously
with the delivery of such new lease, all unpaid rental due under the Lease, (ii)
shall cure all defaults existing under the Lease which are reasonably
susceptible of being cured by Successor-Tenant, and (iii) shall not be bound by
any modification of the Lease, except as set forth above.
2. Landlord and Mortgagee agree that (i) the Lease cannot be
cancelled or surrendered without the prior written consent of Mortgagee, and
(ii) amendments and/or modifications may be made to the Lease without
Mortgagee's consent; provided, however, that no amendments and/or modifications
may be made to the Lease which (a) adversely affect Mortgagee's security
interest in the Lease, (b) materially impair the financeability of the Lease or
(c) materially impair the value of the Lease as collateral for the Mortgage, or
(d) materially decrease Tenant's rights or materially increase Tenant's
obligations under the Lease.
3. Landlord agrees that, notwithstanding the terms of the Lease,
Landlord acknowledges and approves the Leasehold Mortgage and the amounts
secured thereby and the terms and provisions thereof.
4. Landlord represents and warrants as follows:
(a) Landlord is the owner of the fee simple estate in the Premises, is
the landlord under the Lease, and benefits from the easements,
rights of way and other similar appurtenances described in the
Lease, if any.
(b) Tenant is the tenant under the Lease and to the best of Landlord's
knowledge is the owner of the leasehold estate in the Premises.
(c) The Lease is in full force and effect in accordance with its terms
and has not been further assigned, supplemented, modified or
otherwise amended except, to the best of Landlord's knowledge, as
set forth in Schedule D attached hereto.
(d) To the best of Landlord's knowledge, each of the obligations on
Tenant's part to be performed to date under the Lease or under any
other agreement described in Schedule D attached hereto have been
performed, except as set forth in Schedule D attached hereto.
(e) Landlord has full power and authority to enter into this Agreement,
and perform all of its obligations hereunder, and neither the
execution and delivery of this Agreement by Landlord nor the
consummation of the transactions contemplated hereby will conflict
with, result in a breach or termination of, or constitute a default
under, the terms of any agreement to which Landlord is a party or by
which it is bound.
7. Any notice which may be given hereunder shall be personally
delivered or delivered via a nationally recognized overnight courier (such as
Federal Express), properly addressed to the party to receive such notice at the
address of such party set forth below.
To Mortgagee: Cerberus Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx
with a copy to: Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx, Esq.
To Landlord: K&S Maple Hill Mall, L.P.
c/o Kimco Realty Corporation
0000 Xxx Xxxx Xxxx Xxxx
Xxxxx 000
New Hyde Park, New York 11042
Each notice which shall be personally delivered or mailed in the manner
described shall be deemed sufficiently given, served, sent, received or
delivered for all purposes on the first business day following the day on which
the notice is delivered to the addressee (with the affidavit of messenger being
deemed conclusive evidence of such delivery) or on the first business day
following the day on which delivery of such notice is refused by the addressee
upon presentation. Any party may, from time to time, designate a different
and/or additional address and/or person, to whom such notices shall be sent, by
providing notice to the other parties in the manner set forth above. Notices by
a party may be given by an attorney on behalf of that party.
8. This Agreement may be modified only by an agreement in writing
signed by the parties hereto, or their respective successors-in-interest. This
Agreement shall inure to the benefit of and be binding upon the parties hereto,
and their respective successors and assigns. The term "Mortgagee" shall mean the
then holder of the Mortgage. The term "Landlord" shall mean the then holder of
the landlord's interest in the Lease. The term "Tenant" shall mean the then
holder of the tenant's interest in the Lease. The term "person" shall mean an
individual, joint venture, corporation, partnership, trust, unincorporated
association or other entity. All references herein to the Lease shall mean the
Lease as modified by this Agreement and to any amendments or modifications to
the Lease which are consented to in writing by Mortgagee.
9. EACH OF TENANT, LANDLORD AND MORTGAGEE HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT.
10. This Agreement shall be governed by and construed in accordance
with the laws of the state in which the Premises are located.
11. This Agreement may be executed in any number of counterparts,
each of which shall be effective only upon delivery and thereafter shall be
deemed an original, and all of
which shall be taken to be one and the same instrument, for the same effect as
if all parties hereto had signed the same signature page.
12. If any provision under this Agreement or the application thereof
to any entity, person or circumstance shall be invalid, illegal or unenforceable
to any extent, the remainder of this Agreement and the application of the
provisions hereof to other entities, persons or circumstances shall not be
effected thereby and shall be enforced to the fullest extent permitted by law.
[END TO TEXT]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
LANDLORD:
K&S MAPLE HILL MALL, L.P.,
a Delaware limited partnership
By: Kimco Maple Hill 138, Inc.,
its General Partner
By: ___________________________
___________________________ Name:______________________
Print Name:________________ Title:_____________________
___________________________
Print Name:________________
MORTGAGEE:
CERBERUS PARTNERS, L.P.,
a Delaware limited partnership,
as collateral agent
By: _________________________
Name:
Title:
AGREED AND CONSENTED TO BY TENANT:
SHONAC CORPORATION,
an Ohio corporation
By: _____________________
Name:
Title:
[Acknowledgements on following pages]
STATE OF _____________________________ )
:ss.:
COUNTY OF ____________________________ )
I certify that on ___________________, 2004, ____________________,
personally came before me and this person acknowledged under oath, to my
satisfaction, that:
(a) this person signed sealed, and delivered the attached document as
a/the ___________________________________ of ___________________________,
a(n) _______________________________;
(b) this document was signed and made by such __________________________
as its voluntary act and deed by virtue of authority from [the/its] general
partners.
____________________________
Notary Public
My Commission Expires:
____________________________
STATE OF _____________________________ )
:ss.:
COUNTY OF ____________________________ )
I certify that on ____________________, 2004, ______________________
personally came before me and this person acknowledged under oath, to my
satisfaction, that:
(a) this person signed sealed, and delivered the attached document
as a/the ___________________ of _____________________, a(n) ___________________;
(b) this document was signed and made by such ______________________
as its voluntary act and deed by virtue of authority from [the/its] general
partners.
____________________________
Notary Public
My Commission Expires:
____________________________
STATE OF _____________________________ )
:ss.:
COUNTY OF ____________________________ )
I certify that on ____________________, 2004, ______________________
personally came before me and this person acknowledged under oath, to my
satisfaction, that:
(a) this person signed sealed, and delivered the attached document
as a/the _______________ of _____________________, a(n) _______________________;
(b) this document was signed and made by such ______________________
as its voluntary act and deed by virtue of authority from [the/its] general
partners.
____________________________
Notary Public
My Commission Expires:
____________________________
SCHEDULE A
Description of Loan Agreements
1. Financing Agreement dated as of June 11, 2002, among Tenant, Value City
Department Stores, Inc., an Ohio corporation which is the parent of Tenant (the
"PARENT"), and certain other affiliates of Tenant named therein as borrowers,
the subsidiaries of the Parent named therein as guarantors, the financial
institutions from time to time party thereto (collectively, the "TERM LOAN
LENDERS"), and Cerberus Partners, L.P. as agent for the ratable benefit of the
Term Loan Lenders.
2. Loan and Security Agreement dated as of June 11, 2002, among Tenant,
the Parent and certain other affiliates of Tenant named therein as borrowers,
the subsidiaries of the Parent named therein as guarantors, the financial
institutions from time to time party thereto (collectively, the "REVOLVING
CREDIT LENDERS"), and National City Commercial Finance, Inc. and Fleet Retail
Finance Inc. as collateral agents for the ratable benefit of the Revolving
Credit Lenders.
3. Amended and Restated Convertible Loan Agreement dated as of June 11,
2002, among Parent, which is named therein as the borrower, Tenant and certain
other affiliates of Tenant named therein as guarantors, the financial
institutions from time to time party thereto (collectively, the "CONVERTIBLE
LENDERS"), and Cerberus Partners, L.P. as agent for the ratable benefit of the
Convertible Lenders, as amended by Amendment No. 1 to the Amended and Restated
Convertible Loan Agreement dated as of June 11, 2002, among such parties.
SCHEDULE B
Description of the Lease
Location: Maple Hill Mall
Kalamazoo, Michigan
Tenant: Shonac Corporation
Landlord: K&S Maple Hill Mall, L.P.
Being that certain Lease (the "Lease") dated __________________________________,
2004, between Landlord and Tenant.
SCHEDULE C
Description of the Land
SCHEDULE D
Exceptions to Landlord's Representations and Warranties
(None)
EXHIBIT I
LANDLORD'S WAIVER
_____________, 2004
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, K&S Maple Hill Mall, L.P., (the "LANDLORD") executes
this waiver in favor of (a) National City Commercial Finance, Inc., an Ohio
corporation with offices at 0000 X. Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, and
Fleet Retail Finance, Inc., a Delaware corporation with offices at 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, as collateral agents (in such capacity,
herein the "COLLATERAL Agents") for the ratable benefit of the Revolving Credit
Lenders (as hereinafter defined), (b) Cerberus Partners, L.P., a Delaware
limited partnership with offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
as agent (in such capacity, herein the "TERM LOAN AGENT") for the ratable
benefit of the Term Loan Lenders (as hereinafter defined) and (c) Cerberus
Partners, L.P., a Delaware limited partnership with offices at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, as agent (in such capacity, herein the "SENIOR
CONVERTIBLE AGENT") for the ratable benefit of the Senior Convertible Lenders
(as hereinafter defined). The Collateral Agents, the Term Loan Agent and the
Senior Convertible Agent are sometimes referred to herein, collectively, as the
"AGENTS".
WITNESSETH:
WHEREAS, the Landlord owns real property located at ________________ (the
"LEASED PREMISES"), which real property the Landlord leases to Shonac
Corporation, an Ohio corporation with offices at 0000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000 (the "TENANT").
WHEREAS, pursuant to the terms, and subject to the conditions, of that
certain Loan and Security Agreement dated as of June 11, 2002 (as such may be
amended, modified, supplemented or restated hereafter, the "REVOLVING CREDIT
LOAN AGREEMENT") among (i) the Tenant, (ii) the other Borrowers named therein
(collectively, with the Tenant, the "REVOLVING CREDIT BORROWERS"), (iii) the
Revolving Credit Lenders named therein (the "REVOLVING CREDIT LENDERS"), (iv)
National City Commercial Finance, Inc., as Administrative Agent for the
Revolving Credit Lenders and as Swing Line Lender, (v) the Collateral Agents,
and (vi) National City Bank, as Issuer, the Revolving Credit Lenders have been
requested to establish a revolving credit facility in favor of the Tenant and
the other Revolving Credit Borrowers.
WHEREAS, pursuant to the terms, and subject to the conditions, of that
certain Financing Agreement dated as of June 11, 2002 (as such may be amended,
modified, supplemented or restated hereafter, the "TERM LOAN AGREEMENT"), among
(i) the Tenant, (ii) the other Borrowers named therein (collectively, with the
Tenant, the "TERM LOAN BORROWERS"), (iii) certain subsidiaries of the Term Loan
Borrowers named therein as guarantors, (iv) the financial institutions from time
to time party thereto (collectively, the "TERM LOAN LENDERS"), and (v) the Term
Loan Agent, the Term Loan Lenders have been requested to establish a term loan
facility in favor of the Tenant and the other Term Loan Borrowers.
WHEREAS, pursuant to the terms, and subject to the conditions, of that
certain Amended and Restated Senior Convertible Loan Agreement dated as of June
11, 2002 (as such may be amended, modified, supplemented or restated hereafter,
the "SENIOR CONVERTIBLE LOAN AGREEMENT"), among (i) Value City Department
Stores, Inc., an Ohio corporation with offices at 0000 Xxxxxxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000-0000 (the "SENIOR CONVERTIBLE BORROWER"), (ii) the
subsidiaries of the Senior Convertible Borrower named therein as guarantors,
(iii) the financial institutions from time to time party thereto (collectively,
the "SENIOR CONVERTIBLE LENDERS"), and (iv) the Senior Convertible Agent, the
Senior Convertible Lenders have been requested to establish a senior convertible
loan facility in favor of the Senior Convertible Borrower.
WHEREAS, loans and financial accommodations under the revolving credit
facility, the term loan facility and the senior convertible facility will be
secured by all of the Tenant's present and after acquired assets including,
among other things, the Tenant's inventory and equipment (the "COLLATERAL")
located and to be located upon the Leased Premises.
WHEREAS, in order to induce the Revolving Credit Lenders to establish the
revolving credit facility, the Term Loan Lenders to establish the term loan
facility, and the Senior Convertible Lenders to establish the senior convertible
facility, the Landlord hereby represents, warrants, covenants and agrees as
follows:
1. The Landlord has not given a notice to Tenant alleging a default
under the Lease, and to the best knowledge of the Landlord, no event
has occurred and no condition exists that constitutes, or that with
the giving of notice or the lapse of time or both, would constitute
a default by Tenant under the Lease.
2. The Landlord hereby waives any statutory or other lien of the
Landlord against the Collateral.
3. In the event of the exercise by any Agent of its rights upon default
with respect to the Collateral, such Agent shall have reasonable
time in which to repossess the Collateral from the Leased Premises,
but in no event beyond the ninety (90) day period described in
Section 5 below. In those circumstances, the Landlord will (a)
cooperate with such Agent in gaining access to the Leased Premises
for the purpose of repossessing said Collateral or (b) if requested
by such Agent, permit the Agent, or its agents or nominees, to
dispose of the Collateral on the Leased Premises in a manner
reasonably designed to minimize any interference with any other of
Landlord's tenants.
4. To the extent not paid or prepaid by the Tenant, any Agent occupying
the Leased Premises shall pay the Landlord all minimum rent and
additional rent in such amounts as required under the Lease from the
date on which such Agent shall have taken possession of the
Collateral on the Leased Premises (including the ninety (90) day
period described below) until the date of the Agent's vacating the
Leased Premises, it being understood, however, that the Agent shall
not, thereby, have assumed any of the obligations of the Tenant to
the Landlord.
5. Prior to the Landlord's taking any action to terminate its lease
with the Tenant or to evict the Tenant from the Leased Premises for
breach of the lease, the Landlord shall give each of the Agents not
less than ninety (90) days written notice of such action at the
address set forth above, and a reasonable opportunity to preserve,
protect, liquidate, or remove any Collateral on the Leased Premises
and, if any Agent so elects, to cure such breach of the lease.
This Agreement shall inure to the benefit of the Agents, each Revolving
Credit Lender, each Term Loan Lender and each Senior Convertible Lender, and
their respective successors and assigns, and shall be binding upon the Landlord,
its heirs, assigns, representatives, and successors.
Dated this the _____ day of ________________, 2004
LANDLORD
K&S MAPLE HILL MALL, L.P.,
a Delaware limited partnership
By: Kimco Maple Hill 138, Inc.,
its General Partner
By: _________________________________
Name: ___________________________
Title: __________________________
STATE OF ___________________
COUNTY OF __________________
The foregoing Agreement was subscribed, sworn to and acknowledged before me this
_________ day of _______________, 2004 by _____________________________.
________________________________
Print Name
Notary Public
My Commission Expires __________
