EXHIBIT 10.24
LEASE
THIS LEASE made and entered into as of this _____ day of
____________, 199__, by and between _____________________, a ____________
______, the business address of which is ________________________________,
hereinafter called "LESSOR", and FAMILY BOOKSTORES COMPANY, INC., a
Michigan corporation, with its principal business offices at 0000 Xxxxxxxxx
Xxxxxx, XX, Xxxxx Xxxxxx, XX 00000, hereinafter called "LESSEE,"
W I T N E S S E T H :
1. GRANT: THAT LESSOR, in consideration of the rents and covenants
hereinafter stipulated to be paid and performed by LESSEE, does hereby
lease, demise and let unto the LESSEE, the premises situated in the City of
_______________, County of ________________, and State of _____________,
and being a single level (with no mezzanine) storeroom consisting of
approximately _____________ square feet of floor space in a shopping center
commonly known and referred to as ___________________________, hereinafter
referred to as the CENTER, which storeroom premises are more particularly
described as follows:
2. DESCRIPTION:
[ADD DESCRIPTION]
Within thirty (30) days after the date of this Lease, LESSEE shall
have the right to have the leased premises measured to verify the square
footage of space contained therein and the results of such measurement
certified to LESSOR. In the event the leased premises as constructed
(measuring to the center line of the interior walls and the outside of
exterior walls) is less than ______________ square feet or greater than
_________ square feet, the Minimum Rent, Common Area Maintenance Payment,
Tax and insurance payments ("Rent"), as provided for in Section 6., Section
7., Section 8., and all other payments under the Lease calculated by
reference to square footage of the leased premises, shall be adjusted to
reflect the correct Rent based upon the actual square footage of the leased
premises; provided, however, if LESSOR disputes such calculation of square
footage by LESSEE, the matter shall be referred to a third party architect
agreed upon by both LESSOR and LESSEE whose calculations of square footage
of the leased premises as herein provided for shall be binding upon both
parties hereto.
3. TERM AND OPTIONS: TO HAVE AND TO HOLD said premises and the
appurtenances thereto unto LESSEE for and during a primary lease term of
ten (10) years commencing on the first day of the month following the "Rent
Commencement Date", as that term is hereinafter defined, and ending at
midnight on the last day of said ten (10) year term ("Primary Term").
Notwithstanding the foregoing to the contrary, if the Rent Commencement
Date shall fall on the first day of the month, then the lease term shall
commence on such same date. Provided LESSEE shall not then be in any
default of this Lease beyond any cure period and that it shall give LESSOR
written notice thereof not less than six (6) months prior to the expiration
of the Primary Term, LESSEE shall have the option and right to renew and
extend this Lease for one (1) additional term of five (5) years ("First
Renewal Term"), commencing upon the expiration of the Primary Term, upon
the rents, terms and conditions specified in this Lease. Thereafter,
provided LESSEE shall not then be in any default of this Lease beyond any
cure period and that it shall give LESSOR written notice thereof not less
than six (6) months prior to the expiration of the First Renewal Term,
LESSEE shall have the option and right to renew and extend this Lease for a
second additional term of five (5) years ("Second Renewal Term"),
commencing upon the expiration of the First Renewal Term, upon the rents,
terms and conditions specified in this Lease. Following the determination
of said Rent Commencement Date and said Primary Term and Renewal Term
commencement and expiration dates, the parties hereto shall (upon request
by either party) execute a written acknowledgment thereof.
4. RENT COMMENCEMENT: LESSEE'S monthly rent and other charges hereunder
(prorated for a fractional month) shall commence on the earlier of (a) the
sixty-first (61st) calendar day following the date LESSEE is given
possession of the premises (as evidenced by the delivery of the keys
thereto to LESSEE) or (b) the date LESSEE opens for business. Such date
shall be referred to as the "Rent Commencement Date". LESSEE shall use
such sixty (60) day period following the delivery of possession of the
premises to accomplish any remodeling work it may be required hereunder to
do or that it may desire to do (including any fixturing or stocking the
premises). In the event LESSEE (except for reasons of force majeure as
that term is hereinafter defined) shall fail to open for business within
sixty (60) days after said "Rent Commencement Date", such failure shall be
and constitute a default under this lease.
For purposes of this Section, the Minimum Rent shall be $______ per
square foot for lease years one through five; $_____ per square foot for
lease years six through ten; $______ per square foot for the First Renewal
Term; and $_____ per square foot for the Second Renewal Term.
5. COMMON AREA: In conjunction with the lease of said premises, the
LESSEE shall also have the non-exclusive right to use, in common with other
tenants of the CENTER, all facilities within the Common Area provided by
LESSOR in said CENTER for the common use of said tenants, their customers,
employees and invitees. Such facilities, hereinafter simply referred to as
"Common Area", shall include but not be limited to, the parking areas,
driveways, service roads, service areas, sidewalks, landscaped areas,
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approaches and exits. The LESSOR shall keep and maintain the Common Area
in good repair and condition, including lighting, cleaning, resurfacing,
painting and striping said Common Area, removing snow, ice and debris
therefrom and regulating traffic thereon; and shall maintain, repair and/or
replace when necessary the paving, curbs, walkways, lighting, landscaping,
parking bumpers, drainage pipes, ducts, conduits and similar or dissimilar
items therein. The LESSOR shall neither fence nor otherwise unreasonably
obstruct LESSEE'S free use of the Common Area; provided, however, that said
Common Area shall at all times remain under the full control of LESSOR and
that LESSEE shall respect all reasonable rules and regulations regarding
the use of such Common Area as from time to time may be prescribed by the
LESSOR. LESSOR reserves the right to close any or all portions of the
Common Area to such extent as may, in LESSOR'S opinion, be legally
sufficient to prevent a dedication thereof or the accrual of any rights
therein to any person or to the public and to close temporarily, if
necessary, any part of the Common Area in order to discourage non-customer
parking; provided, however, that such actions by the LESSOR do not prohibit
free ingress to and egress from the CENTER. LESSOR further reserves the
right from time to time to make such changes in and to the Common Area as
LESSOR in its sole discretion deems appropriate and to erect or place
improvements, structures or buildings thereon or do any other thing with
respect thereto so long as the doing of such things does not unreasonably
interfere with the business of tenants in the CENTER.
6. MINIMUM RENT: The LESSEE does hereby covenant and agree to pay to
LESSOR during said lease term, a "Minimum Rent" in the following annual
amounts:
A. PRIMARY TERM
1. RENT COMMENCEMENT DATE THROUGH FIFTH LEASE YEAR - At the
annual rate of _____________________________________ Dollars
($____________), Payable in equal monthly installments of
_________________________________ Dollars ($___________) each.
2. SIXTH THROUGH TENTH LEASE YEAR - At the annual rate of
_______________________________ Dollars ($____________), payable
in equal monthly installments of ________________________ Dollars
($__________) each.
B. FIRST RENEWAL TERM - At the annual rate of ____________________
_______________ Dollars ($___________), payable in equal monthly
installments of _____________________ Dollars ($____________)
each.
C. SECOND RENEWAL TERM - At the annual rate of ___________________
______________ Dollars ($__________) payable in equal monthly
installments of ________________________________ Dollars
($____________) each.
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All monthly rent payments, together with all other sums payable
monthly hereunder, shall be paid in advance and without demand upon the
first day of each and every month throughout said lease term.
7. COMMON AREA PAYMENT: In addition to the "Minimum Rent" hereinbefore
expressly reserved, and as LESSEE'S contribution toward the full costs of
maintaining the Common Area of said CENTER, the LESSEE shall further pay to
LESSOR during said lease term the minimum annual sum of ________________
_________ Dollars ($____________), payable, in advance and without demand
on the first day of each and every month throughout said term, in equal
monthly installments of _______________________________________ Dollars
($____________), each provided, however, that such Common Area Payment
shall be subject to the following adjustments:
The amount payable per month by LESSEE as above set forth under this
Clause 7., so long as it shall never be less than said amount, shall be
adjusted on the first anniversary of the commencement date of the term of
this lease and annually thereafter during said lease term by a percentage
equal to the percentage increase or decrease in the Revised 1978 Consumer
Price Index-U.S. Average All Urban Consumers CPI-U (U.S. City Average All
Items) (1982-84=100) published by the Bureau of Labor Statistics of the
United States Department of Labor for the third month immediately preceding
the date hereinabove designated for such adjustment, over or under said
Consumer Price Index so published for the month in which this lease is
dated (e.g. If the commencement date of the term of this Lease, and each
annual anniversary thereof, is January 1st, then the CPI index for the
month of October (i.e. the 3rd month preceding the lease term commencement
date) shall be the month used for such adjustment); provided, however, that
no annual adjustment shall result in excess of a four percent (4%) increase
in the amount then being adjusted. In the event the said Bureau of Labor
Statistics shall change the base period of such Consumer Price Index
(hereinabove set forth as being 1982-84=100), such new base period shall be
substituted for the above stated base period in making the above mentioned
adjustment. If during the term of this lease, the U. S. Department of
Labor, Bureau of Labor Statistics, ceases to maintain said Consumer Price
Index, such other U. S. government index or standard or, if none, such
other non-government index or standard as will most nearly accomplish the
aim and purpose of said Consumer Price Index and the use thereof by the
parties hereto shall be used in determining the amount of the adjustment
provided for under this Clause 7.
8. OTHER SUMS PAYABLE: In addition to the "Minimum Rent" and "Common Area
Payment" hereinbefore expressly reserved, the LESSEE further agrees to pay
to LESSOR for each lease year of said lease term (or as otherwise provided)
the following sums:
A. SECURITY DEPOSIT - LESSEE shall pay to LESSOR the sum of
____________________________ Dollars ($__________), to be held by LESSOR
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without interest as security for the performance by LESSEE of LESSEE'S
covenants and obligations under this Lease, it being expressly understood
that such deposit may be commingled with LESSOR'S other funds and is not an
advance payment of rental or a measure of LESSOR'S damages in case of
default by LESSEE. Upon the occurrence of any event of default by LESSEE,
LESSOR may, from time to time, without prejudice to any other remedy
provided herein or by law, use such fund to the extent necessary to make
good any arrearage of rentals and any other damage, injury, expense or
liability caused to LESSOR by such event or default, and LESSEE shall pay
to LESSOR on demand the amount so applied in order to restore the security
deposit to its original amount. If LESSEE is not then in default
hereunder, any remaining balance of such deposit shall be returned by
LESSOR to LESSEE within thirty (30) days after termination of this lease.
B. TAXES ON BUILDING - A prorata share of any and all real estate
taxes and assessments, both general and special ("Taxes"), attributable to
and imposed upon the building within which the leased premises is contained
or of which same is a part (inclusive of the land beneath said building)
becoming due and payable semi-annually as provided for under subparagraph
D. below. Such Taxes shall also include the ________________ County annual
disposal service charge applicable to the premises referenced in Clause
13.B. below, if such charge shall be added to LESSOR'S tax xxxx for the
Shopping Center. Such prorata share of Taxes (excluding the above disposal
service charge which shall be determined separately in accordance with
Exhibit "D" attached hereto) due and payable by LESSEE shall be determined
by multiplying the total sum thereof by a fraction, the numerator of which
shall be the total number of square feet contained within said leased
premises and the denominator of which shall be and consist of the total
number of square feet of leaseable storeroom space contained within said
building.
C. TAXES ON COMMON AREA - A prorata share of said Taxes attributable
to and imposed upon the Common Area and improvements thereon within the
CENTER (inclusive of any Taxes for highway and highway-related improvements
which may be imposed upon or against said property) becoming due and
payable semi-annually as provided for under subparagraph D. below. Such
common area shall include all land, with or without improvements thereon,
within said CENTER which is set aside for the common use, benefit and
enjoyment of all tenants in the CENTER. Such prorata share of Taxes due
and payable by LESSEE shall be determined by multiplying the total sum
thereof by a fraction, the numerator of which shall be the total number of
square feet contained within said leased premises and the denominator of
which shall be and consist of the total number of square feet of leaseable
storeroom space in the CENTER.
Any costs, expenses and attorneys' fees (including the costs of tax
consultants) incurred by LESSOR in connection with the negotiation for
reduction in the assessed valuation of land, buildings and improvements
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comprising the Shopping Center and any protest or contest of real estate
taxes and/or assessments shall be included within the term "Taxes".
D. TAX BILLS - Unless hereafter changed by the taxing authority, the
Taxes for which LESSEE shall be responsible under this lease as mentioned
under subparagraphs B. and C. above shall be evidenced by the semi-annual
real estate tax bills (regardless of the periods to which such bills
actually apply or the time when such bills actually become due and payable)
starting with the first semi-annual tax xxxx being issued after the Rent
Commencement Date and ending with the twentieth (20th) semi-annual tax xxxx
being issued after said Rent Commencement Date (inclusive of all semi-
annual tax bills becoming due and payable during the period between said
dates). In the event LESSEE shall exercise its options hereunder to renew
and extend this Lease, LESSEE shall continue the payment of its prorata
share of such Taxes through and inclusive of the period ending with the (i)
thirtieth (30th) semi-annual tax xxxx after said Rent Commencement Date (as
to the First Renewal Term), and (ii) fortieth (40th) semi-annual tax xxxx
after said Rent Commencement Date (as to the Second Renewal Term).
E. FIRE INSURANCE - A prorata share of the full cost incurred by
LESSOR of fire and extended coverage insurance (including standard all risk
perils and rent loss insurance and any costs incurred by LESSOR for repair
of casualty damage to the CENTER not covered by such insurance due to the
deductible clause of such insurance) carried and maintained upon the
building (inclusive of improvements therein or thereto) within which the
leased premises is contained or of which same is a part. Unless otherwise
determined by the insurance carrier, such prorata share of insurance cost
due and payable by LESSEE shall be determined by multiplying the total cost
of such insurance by a fraction, the numerator of which shall be the total
number of square feet contained within said leased premises and the
denominator of which shall be and consist of the total number of square
feet of leaseable storeroom space contained within said building. It is
understood and agreed by LESSEE that the insurance carried and maintained
by LESSOR as provided for under this subparagraph E. does not include
insurance coverage on or for casualty damage to the premises of $1,000 or
less nor building contents insurance on LESSEE'S personal property,
equipment, fixtures or inventory, which insurance the LESSEE herein
covenants and agrees to carry and maintain at its expense throughout the
term of this lease.
F. HOW AND WHEN PAYABLE - LESSEE'S security deposit, prorata share
of Taxes and fire insurance as provided for above, shall be paid as
follows:
(1) SECURITY DEPOSIT - LESSEE shall pay the security deposit
hereinabove provided for upon LESSEE'S execution and delivery of this
Lease to LESSOR.
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(2) TAXES - Commencing with the Commencement Date of this lease
as provided for under Clause 3. above, or upon such earlier date as
LESSEE shall first be required to pay rent hereunder, LESSEE shall pay
to LESSOR monthly, in advance, throughout the term of this lease or
other period of occupancy of the premises by LESSEE the sum of
_______________________________ Dollars ($__________), to be applied
against LESSEE'S tax liability under subparagraphs B., C. and D. of
this Clause 8. Such monthly sum payable by LESSEE shall be determined
on the basis of at least two (2) semi-annual tax bills applicable to
the premises or CENTER for the period immediately preceding the first
lease year hereunder (unless LESSOR shall be aware of some other
evidence indicating a lesser or greater tax liability for the first
lease year, in which case said monthly sum shall be determined on the
basis of such other evidence). Thereafter, on an annual basis
following the end of the first lease year and each subsequent lease
year (or at the end of each calendar year if LESSOR so elects, such
lease or calendar year, as the case may be, being hereinafter referred
to as "tax year"), LESSOR shall, if necessary adjust said monthly
amount for Taxes on the basis of LESSEE'S actual tax liability for the
immediately preceding tax year (unless LESSOR shall be aware of some
other evidence indicating a lesser or greater tax liability for such
tax year, in which case said monthly sum shall be determined on the
basis of such other evidence), and LESSEE, upon notice from LESSOR,
shall commence paying such adjusted monthly sum.
Concurrently with such annual adjustment (whether or not an
adjustment is actually made), LESSOR shall furnish to LESSEE a copy of
the tax xxxx or bills and a statement in reasonable detail of LESSEE'S
actual tax liability for the preceding tax year. If the actual amount
of LESSEE'S tax liability with respect to any tax year, once
determined, is less than the total amount theretofore paid for such
period, the excess amount so paid shall then be refunded to LESSEE.
If the actual amount of LESSEE'S tax liability with respect to any tax
year, once determined, shall exceed the total amount theretofore paid
by LESSEE for such period, LESSEE shall then pay to LESSOR such
deficiency within ten (10) days following notice from LESSOR. Any
deficiency assessed may include a deficiency for the period between
the end of the tax year in question and the date of determination by
LESSOR.
(3) FIRE INSURANCE - Following the date of this lease, LESSEE
shall be billed by LESSOR for its prorata share of insurance costs
under subparagraph E. of this Clause 8. covering the period from the
Rent Commencement Date of this lease to the next following annual
insurance premium payment date (currently April 1 of each year).
LESSEE shall pay such insurance xxxx concurrently with the payment of
its first full month's rent due under this lease.
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Thereafter, within thirty (30) days prior to such annual insurance
premium payment date, or at any time thereafter, LESSEE, upon billing from
LESSOR, shall pay its prorata share of insurance costs for the next
following insurance premium payment year (i.e., April 1 through March 31)
or part thereof during which the lease term hereunder is in effect or
during any other period of occupancy of the premises by LESSEE.
LESSOR shall furnish LESSEE with a reasonable explanation of the
computation of LESSEE'S prorata share of insurance costs with each such
billing. In the event this lease shall be terminated other than for reason
of default by LESSEE, or shall expire, LESSOR shall promptly refund any
portion of such insurance costs paid by LESSEE which are applicable to any
period following such termination or expiration date. LESSEE shall have
the right, upon prior written notice to LESSOR, to examine LESSOR'S records
with respect to both tax and insurance xxxxxxxx under this Lease (such
examination to be conducted at LESSOR'S offices during normal business
hours).
9. LEASE YEAR AND LEASE TERM: The term "lease year" is hereby defined as
meaning the twelve (12) month period beginning with the commencement date
of the term of this lease as defined in Clause 3. hereof or with any annual
anniversary of said date during the lease term. The term "lease term"
shall, unless otherwise expressly provided, be deemed to mean and refer to
both the Primary Term and any renewals thereof.
10. RENT PAYABLE: All rent and/or other sums due and payable hereunder
shall be paid in lawful United States currency on or before the due date
specified for such payment, or if no date specified, as may be directed by
the LESSOR, to ___________________________________________________________,
unless and until otherwise directed in writing by LESSOR. LESSEE shall
insert on each rent check payable to LESSOR. LESSOR'S Lease Identification
No. _______________.
11. REMODELING OF PREMISES: Following the execution of this lease by the
parties hereto, the LESSOR shall cause possession of the premises to be
delivered to LESSEE on _____________, ____ (unless LESSEE chooses to take
possession of the premises prior to such date), and LESSEE hereby agrees to
accept same, subject to the terms of this Lease, in "as is condition";
provided, however, LESSOR, at its expense, shall _______________________
__________________ prior to LESSEE'S acceptance of the premises.
Additionally, if during any phase of LESSEE'S construction, or at any time
during the lease term, any hazardous materials, such as asbestos, are
discovered in the premises, the LESSOR agrees that it will be solely
responsible, at its expense, to remediate such condition.
Upon delivery of possession of the premises to LESSEE and during the
period preceding the Rent Commencement Date as specified in Clause 4.
above, LESSEE shall commence and complete any remodeling work which it may
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desire or hereunder be required to do (including fixturing and stocking the
premises for business); provided, however that prior to the commencement of
any such remodeling work (other than installing normal or customary
business fixtures), LESSEE shall first obtain LESSOR'S written approval
thereof. In order to obtain LESSOR'S approval as aforesaid, LESSEE shall
furnish LESSOR with a sufficiently detailed set of Plans and Specifications
outlining the scope of LESSEE'S work. LESSOR shall not unreasonably delay
or withhold its approval thereof.
12. REPAIRS AND MAINTENANCE: During said lease term or any other period of
occupancy prior to or after said lease term the LESSOR shall maintain and
keep in good repair the exterior of the building within which the leased
premises is contained (inclusive of the obligation to maintain and repair
the roof, gutters and downspouts and to keep said building structurally
sound, but exclusive of any such exterior part of the premises damaged by
the negligence of LESSEE or its employees, agents, contractors or
representatives) and the entire Common Area within said CENTER; provided,
however, LESSOR shall not be obligated to repair and maintain any part of
the exterior storefront of said premises (meaning any part of any door,
doorframe or doorjamb, window or window frame), or any other exterior door
or window or part thereof, or any exterior sign, awning, light fixture or
canopy or part thereof which has been installed by or for LESSEE and which
constitutes part of or is affixed to said premises.
During said same period or periods, in addition to being responsible
for the maintenance and repair of those parts of the premises which as
above mentioned are not obligations of the LESSOR, LESSEE shall maintain
and keep in good repair and condition the interior of the demised premises,
including but not limited to the walls, floors and ceilings and any parts
thereof; and LESSEE shall further be responsible for the repair,
maintenance and replacement, if necessary, of all mechanical, electrical
and plumbing systems or parts thereof within or exclusively serving said
premises, including but not limited to, the heating, ventilating and air
conditioning (HVAC) systems. LESSEE shall enter into a preventive
maintenance service contract with a reputable company approved by LESSOR
for the regular and periodic servicing (not less than twice each year) of
the HVAC system upon and serving the premises. LESSEE shall also contract
with a filter replacement service for monthly replacement of filters in the
HVAC equipment. LESSEE shall maintain such service contracts in effect
throughout the lease term and LESSEE'S occupancy of the premises. If
LESSEE shall fail to enter into and maintain such HVAC service contract and
such filter replacement service contract, or shall fail to furnish LESSOR
on request with satisfactory evidence that such contracts are in effect,
LESSOR may, at its option, enter into such contracts for and on behalf of
LESSEE and the cost thereof shall, on demand, be promptly paid by LESSEE to
LESSOR; provided, however, LESSOR shall have no obligation by virtue of
this provision to contract for such services. Additionally, LESSEE
understands that failure to cause such HVAC equipment to be regularly and
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properly serviced and maintained may also negate or void any existing
warranties on such equipment. Notwithstanding the LESSOR'S covenants
herein set forth, LESSEE shall be solely responsible for keeping the
sidewalk immediately in front of its storeroom premises free from snow and
ice. Further notwithstanding the foregoing to the contrary, LESSOR
warrants that the HVAC system shall be in good working condition and repair
upon delivery of possession of the premises to LESSEE; and that LESSOR
shall be responsible for such HVAC repair (excluding routine changing of
filters) should anything go wrong with the system during the first six (6)
months of said Primary Term.
13. OTHER COVENANTS OF LESSEE: In addition to the foregoing covenants and
conditions with which LESSEE has agreed to comply, the LESSEE hereby
further agrees that it shall:
A. USE - Use and occupy the leased premises for and during the term
of this lease for the following purposes, to wit: a store primarily for the
retail sale, rental, display and use of family, religious and inspirational
merchandise, including but not limited to printed and recorded books and
music and church supplies, and for the incidental sale, in connection with
said primary use, of gifts, cards, videos, children's products, stationery,
toys and games, textiles, jewelry, figurines, software, calendars,
novelties, wall hangings, pictures, posters, gift wrap and other items
customarily sold in a majority of LESSEE's other Family Bookstores and/or
Family Christian Stores, it being intended that LESSEE'S primary use of the
premises shall be for the operation of a Family Bookstore and/or a Family
Christian Store substantially like those stores now operated by LESSEE. In
the event that the business operated by LESSEE is a franchise business, and
if LESSEE for any reason shall cease to be and remain a franchisee of such
business, then LESSOR may, on written notice to LESSEE at any time
thereafter, cancel and terminate this lease. Said leased premises shall
not be used for any other purpose other than as above set forth without the
express written consent of the LESSOR being first obtained. LESSEE shall
use no part of the sidewalk or other Common Area outside the premises for
display, storage or sales purposes and shall cause all deliveries to the
premises to be made through the rear entrance, if provided, to such
premises.
Provided LESSEE shall not be and remain in any material default under
this Lease, LESSOR agrees not to permit any other tenant in the CENTER to
operate a business which is primarily for the sale of Christian products,
nor shall it allow a tenant who has more than 1,000 square feet of floor
space set aside for the sale or rental of Christian books and Christian
music. LESSOR warrants that there are no restrictions in any existing
tenant leases that would restrict LESSEE'S use of the premises above
described. However, LESSEE acknowledges that LESSOR may grant exclusives
to other tenants for the sale of items which LESSEE sells on an incidental
basis and that such exclusives could restrict LESSEE from substantially
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increasing (as a percentage of its gross sales) the sale of such items.
For example, LESSOR may grant an exclusive to a jewelry store or to a toy
store, which would restrict LESSEE from conducting a business primarily for
the sale of jewelry or the sale of toys. Notwithstanding the foregoing,
LESSEE shall not be restricted in the sale of any such "incidental items"
so long as its sale of any one category of incidental items (e.g. toys or
jewelry) does not exceed fifteen percent (15%) of LESSEE'S gross sales.
LESSEE shall not allow the leased premises to be used for any purpose
that in any way will increase the cost of hazard insurance to the LESSOR
over and above the normal cost of such insurance for the type and location
of the building of which the demised premises are a part, and for the
intended business of the LESSEE hereinabove set forth; nor bring nor suffer
to be brought into or upon said premises any substance that will increase
the hazard of fire in or on said premises (the parties not hereby intending
to exclude items customarily carried in inventory in a retail business of
the kind described in this lease); and provided further that should the
insurance rate for fire or other hazard to increased by reason of a
condition created by LESSEE in its use or occupancy of the premises, even
if with the consent of the LESSOR, said increase in such insurance rate
created or occasioned by LESSEE'S use or occupancy for extra-hazard
purposes shall be paid by the LESSEE as additional rent within ten (10)
days after receipt by LESSEE of invoice therefor from the LESSOR.
B. UTILITIES - Be solely responsible and promptly pay for all public
utility and private services rendered or furnished to the leased premises
from and after the date that possession of the premises is delivered to
LESSEE and during the term hereof (whether furnished or invoiced to the
LESSEE by the utility supplier or by the LESSOR) in the nature of heat, air
conditioning, water and sewer charges, gas, electricity and trash hauling,
together with all taxes, levies or other charges based on the use of such
utilities or services. Additionally, if during said lease term or any
occupancy of the premises by LESSEE, LESSOR shall be required by any law,
regulation or ordinance promulgated, passed or created by any governmental
authority or agency thereof, whether federal, state, county, regional, city
or other, to pay any service charge levied, assessed or imposed upon LESSOR
because of its ownership of the premises hereby leased (an example of such
charge being the disposal service charge for disposal of garbage and/or
refuse which is imposed pursuant to Resolution No. __________, passed by
the County Commissioners of _____________ County, ___________, or any
amendment thereof, a copy of said Resolution with accompanying rate
schedule being attached hereto as Exhibit "C" and made a part hereof), then
and in such event, LESSEE shall promptly reimburse LESSOR for the full
actual amount of such service charge paid by LESSOR upon being billed by
LESSOR therefor or, if same can be arranged, such service charge shall be
paid by LESSEE directly to the charging authority. In the event the
disposal service charge for the premises above mentioned is shown as an
assessment on LESSOR'S real estate tax bills for the Shopping Center,
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LESSEE shall nevertheless reimburse LESSOR for same upon receipt of a
statement from LESSOR (such charge to be calculated as provided for in
Exhibit "D" to this Lease). The intent of this provision is to make the
LESSEE responsible for all such service charges which are or would be
imposed upon LESSOR merely by virtue of the fact that it is the owner of
the leased premises, but which service charges are, in essence or in
effect, imposed for or relate to a specific service or services (such as
trash disposal) rendered to, upon or for the premises, or to the use to
which the premises have been put by LESSEE, or which primarily benefits the
business conducted by LESSEE. This provision is not intended to and does
not impose any liability or responsibility upon LESSEE for any charge or
charges against LESSOR or the leased premises which are not imposed for or
do not relate to such service or services.
Additionally, the parties hereto specifically understand and agree
that LESSOR is not responsible for providing and shall not in any way be
liable hereunder unto the LESSEE for the quality or quantity of any utility
service in the nature of water, gas and electricity which is or might be
necessary for heating, air conditioning and other such purposes upon and
within the premises. In the event any local, state or federal government,
government body, department, branch, agency or public utility shall
restrict or reduce the amount of any fuel or energy which may be utilized
to provide the utilities and services hereinbefore referred to, then such
reduction or restriction and the reduction in utilities and services to the
premises and the CENTER which may result therefrom shall in no way create
or constitute a default on the part of the LESSOR under this lease or
otherwise, and there shall be no reduction in rents or other sums due and
payable by LESSEE under this lease, nor shall LESSEE have or be entitled to
any other claim against LESSOR, for the period or periods during which the
said utilities and services are so restricted or reduced. Any expense to
provide the premises with an alternate source of fuel or energy for or
during any period in which regular fuel and energy supplies are curtailed
shall be LESSEE'S sole responsibility.
C. ALTERATIONS - Not make major or structural additions or
alterations to the interior or any additions or alterations to the exterior
of the leased premises without LESSOR'S prior written consent (which
consent shall not be unreasonably delayed or withheld), and when such
consent be given, cause all such permitted additions and alterations to be
done in a good workmanlike manner. LESSOR'S written approval of LESSEE'S
construction and/or remodeling Plans and Specifications furnished to LESSOR
prior to the commencement of such work shall constitute LESSOR'S consent.
LESSEE further agrees that, in undertaking any such additions or
alterations, it shall obtain and pay for all permits from all public
authorities, as may be required, pay all cost and expense arising from such
undertaking, as well as for all damage occasioned in connection therewith;
and LESSEE shall obtain and furnish satisfactory evidence of such
additional insurance protecting LESSOR as LESSOR may reasonably request.
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LESSEE shall cause all permitted work to be done in accordance with the
Plans and Specifications approved by LESSOR, and shall be solely
responsible to see that such Plans and Specifications comply with all
building, fire and sanitary codes and regulations of governmental
authorities having jurisdiction, and any other such laws, codes and
regulations, including the requirements and recommendations of LESSOR'S
insurance underwriters, relative to such work. LESSEE understands that
LESSOR'S approval of said Plans and Specifications as above provided for
shall not in any manner be deemed or construed to be an indication or
acknowledgment that same are in conformity with such codes, regulations,
laws, recommendations or other requirements relating thereto. If LESSEE
shall install business fixtures and equipment, or construct partitions,
soffits, lofts, shelves, or other improvements (including the installation
or relocation of light fixtures) which overload utility lines or result in
excessive spacing of sprinkler heads, or which obstruct or impede the
sprinklers and/or operation thereof in any way, LESSEE shall, on demand and
at its sole expense, make whatever changes are necessary including, but
without limit to, the extending, addition, or lowering of sprinkler lines
and heads to comply with the requirements or recommendations of LESSOR'S
insurance underwriters and/or governmental authorities having jurisdiction
thereof. All such additions and alterations (including wall to wall
carpeting) shall be and become a part of the realty which shall at LESSOR'S
option, upon the termination or expiration of the lease term, remain with
and be a part of the premises for the benefit of LESSOR, and LESSOR shall
be under no obligation to compensate LESSEE therefor. However, if directed
by LESSOR, LESSEE at its sole expense shall remove all such additions and
alterations, repair all damage occasioned by such removal, and restore the
premises to as good a condition as when received, reasonable wear and tear,
excepted.
D. TRASH AND ODORS - Keep all trash, rubbish, garbage and other
refuse in proper containers within the interior of the leased premises or
upon the exterior rear of said premises until called for to be removed, and
not cause or permit objectionable odors to emanate or be dispelled from
said leased premises.
E. LAWS - Comply with all laws and ordinances and all rules and
regulations of governmental authorities, and all recommendations of the
____________________________, with respect to the use and occupancy of said
leased premises by LESSEE.
F. BUSINESS HOURS - Cause its business to be conducted and operated
on all business days (excepting Easter, Thanksgiving, Christmas and New
Year's day and all Sundays) during at least the hours of 10:00 A.M. to 9:00
P.M., Mondays through Saturdays. By this covenant, it is meant that
LESSEE, except for reasons of force majeure, shall continuously operate and
keep open its business upon the premises during the hours above specified
throughout the term of this lease. If LESSEE fails to comply with this
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covenant, it shall be in default of this lease even though it may continue
to pay the rent and other charges provided for hereunder. Notwithstanding
the foregoing to the contrary, LESSEE shall also be permitted to close one
additional business day to conduct physical inventory.
G. SIGNS - Install and erect a business identification sign on the
exterior storefront of said leased premises in accordance with LESSOR'S
sign criteria as set forth and described on Exhibit "D" attached hereto and
made a part hereof; provided, however, LESSEE shall as soon as possible
after the signing of this Lease furnish LESSOR for LESSOR'S approval with a
detailed, to scale rendering of such sign prior to ordering or installing
same, which rendering shall include all sign specifications required by
LESSOR. LESSOR shall not unreasonably withhold its approval of such sign.
LESSEE shall cause said sign to be illuminated each business day during the
hours from dusk to one-half hour past LESSEE'S closing time; provided,
however, if LESSEE'S closing time is earlier than the majority of other
stores in the CENTER, LESSEE shall keep said sign illuminated until one-
half hour past the closing time of the majority of said other stores.
Further, LESSEE shall not place or erect any awnings, canopies or other
fixtures or apparatus on the exterior of said leased premises unless the
same be expressly provided for herein or otherwise approved in writing by
the LESSOR. When so approved and/or permitted hereunder, LESSEE agrees
that it shall maintain such signs, awnings, canopies, fixtures or apparatus
in good condition and repair and save LESSOR harmless from all cost,
expense, loss or damage which may result from the erection, maintenance,
existence or removal of same. Upon vacating the premises, LESSEE agrees
that it shall remove all such signs, awnings, canopies, fixtures or
apparatus as it may have installed on the leased premises and repair all
damage caused by or resulting from such removal. Any refusal by LESSOR to
approve a sign or signs which fail to meet the sign criteria as set forth
on said Exhibit "D" shall not be deemed nor construed to be an unreasonable
withholding of approval hereunder by LESSOR. Additionally, LESSOR shall
have the right to remove LESSEE'S storefront sign (or any awning, canopy,
fixture or apparatus installed by LESSEE) at any time it may be necessary
or advisable to do so for the purpose of remodeling or repairing any part
of the structure of which the demised premises are a part, but LESSOR
agrees to promptly reinstall said sign, awning, canopy, fixture or
apparatus upon completion of the work.
H. LIENS - Promptly pay all contractors and materialmen hired by
LESSEE and secure from said parties and their respective subcontractors and
suppliers proper releases or waivers of lien so as to minimize the
possibility of any lien attaching to the leased premises or CENTER and,
should any such lien be filed, bond against or cause same to be discharged
within thirty (30) days after receipt of written request from LESSOR to do
so.
I. LIABILITY INSURANCE - Keep in force at its own expense, so long
as this lease remains in effect, public liability and property damage
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insurance in companies authorized to do business in ______________ and
___________________ County with respect to the leased premises, insuring
both LESSOR and LESSEE as their interests may appear (LESSOR to be named an
Additional Insured Party in said policy), with a combined single limit
coverage of not less than One Million and no/100 Dollars ($1,000,000.00) on
account of bodily injuries and/or death and property damage. Such policy
shall also require the LESSOR to be notified in writing by the insurer at
least thirty (30) days prior to the cancellation or reduction in the amount
of such insurance. LESSEE shall furnish the LESSOR with an original
certificate or certificates (and with renewal certificates) from the
insurer or insurers evidencing such insurance coverage to be in effect.
Should LESSEE fail at any time to provide this coverage and evidence
thereof, LESSOR may cause a policy with such dollar limits to be issued by
a reputable insurance company for and on behalf of LESSEE, and LESSEE shall
promptly reimburse LESSOR on demand for the full cost thereof.
J. ASSIGNMENT OR SUBLEASE - Not voluntarily, involuntarily or by
operation of law assign or encumber this lease, in whole or in part, or
sublet the whole or any part of the demised premises, or permit any other
persons to occupy same without the express written consent of the LESSOR,
references elsewhere in this lease to assignees, subtenants or other
persons notwithstanding. In the event that LESSEE requests permission to
either assign this lease, or to sublet the whole or any part of the demised
premises, or should this lease be deemed to be assigned as hereinafter
provided, then LESSOR shall not unreasonably withhold its consent. In the
absence of such consent, no person or entity to whom or to which an
assignment has been made or with whom or which a sublease has been entered
into shall have any claim, right or remedy whatsoever hereunder, against
LESSOR, and LESSOR shall have no duty to recognize any person or entity
claiming under or through the same. Additionally, each request on the part
of LESSEE to assign this lease or sublet the premises shall be accompanied
by a processing fee payable to LESSOR in the amount of Two Hundred and
no/100 Dollars ($200.00), which fee constitutes reimbursement to LESSOR for
its administrative, legal and other overhead costs and expenses incurred in
reviewing and/or preparing necessary and related documents and otherwise
processing such request. Any assignment or subletting, even with the
consent of LESSOR, shall not relieve LESSEE from liability for payment of
rent or other sums herein provided or from the obligation to keep and be
bound by the terms, conditions and covenants of this lease. LESSOR shall
also have the right to condition its consent to any assignment or sublease
upon the assignee's or sublessee's entry into an agreement with or for the
benefit of (and in form and substance satisfactory to) LESSOR, providing
for such assignee's or sublessee's assumption of all of the LESSEE'S
obligations under this lease. The acceptance of rent from any other
persons shall not be deemed to be a waiver of any of the provisions of this
lease or to be a consent to the assignment of this lease or subletting of
the demised premises. In the event LESSEE shall sublet the demised
premises for a rental in excess of the rental hereunder payable by LESSEE,
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the full amount of such excess rental shall be automatically due and
payable by LESSEE to LESSOR as additional rent under this lease.
Notwithstanding anything in this Lease to the contrary, LESSEE shall
have the right, on one occasion only during the lease term, and upon thirty
(30) days' prior written notice to LESSOR, together with sufficient
documentation which verifies that all of the requirements set forth
hereunder have been fulfilled and the conditions have been met, to (a)
assign and transfer this Lease to another entity to which LESSEE has sold
all of its assets, or (b) to merge or consolidate with another entity with
the result that the merged or consolidated entity shall have all of the
assets of LESSEE, provided that (i) LESSEE shall not at the time of such
assignment be in default under any of the terms, covenants and conditions
of this Lease, (ii) such assignee or merged entity shall have a net worth
equal to or greater than the net worth of LESSEE as of the date of this
Lease or as of the date immediately preceding such assignment, whichever of
such net worth amounts shall be greater (and, in the event of an assignee
other than a merged entity, such assignee shall be required to satisfy such
net worth test both immediately before and after the date of assignment),
(iii) such assignee or merged entity shall agree in writing to perform all
of LESSEE'S unperformed and remaining terms, covenants and conditions of
this Lease, (iv) LESSEE shall at all times remain primarily obligated for
the performance of all of the terms, covenants and conditions of this
Lease, and (v) such assignee or merged entity shall have substantial and
proven experience in the successful operation of the type of business set
forth in the permitted uses described above, or such assignee or merged
entity shall (for the lease term) retain substantially the same management
personnel as employed by LESSEE immediately prior to such assignment and
transfer, and the experience of such assignee or merged entity or proof
reasonably satisfactory to LESSOR that substantially the same management
personnel has been retained shall be documented to LESSOR. Subject to the
foregoing conditions, a permitted assignment and transfer may also be
implemented by means of a transfer of all of LESSEE'S voting capital stock,
provided that the purchaser of such voting capital stock shall guarantee
the performance by LESSEE of all of the terms, covenants and conditions of
this Lease and shall provide to LESSOR, prior to the effective date of such
purchase, an executed guaranty in the form required by LESSOR; provided,
however, that such guaranty shall not be required in the event that such
purchaser shall have a net worth at least equal to the net worth of LESSEE
as of the date of this Lease or as of the date immediately preceding such
assignment, whichever of such net worth amounts shall be greater (provided
that such purchaser must satisfy such net worth test both immediately
before and after the date of purchase of LESSEE'S voting capital stock).
Within twenty (20) days prior to the effective date of any such assignment
or transfer, LESSEE shall provide LESSOR with all documents and evidence
necessary for LESSOR to determine that the foregoing terms and conditions
have been or will be met and satisfied; and provided such conditions are
met and satisfied, LESSEE shall have the right to proceed with such merger,
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consolidation or assignment. Also, within twenty (20) days after the
effective date of any such assignment or transfer, LESSEE shall provide
LESSOR with a copy of the fully-executed and dated merger, consolidation
and/or assignment documents. LESSOR'S prior consent shall not be required
for any "going public" transaction by LESSEE or transfers of LESSEE'S stock
by operation of law due to the death or incapacity of any shareholder or in
connection with any disposition to a family trust or other estate-planning
vehicle by any such shareholder.
If LESSEE is a corporation (other than one whose stock is traded on a
national stock exchange), then any transfer of this lease from LESSEE by
merger, consolidation or liquidation, or any change in ownership or power
to vote of a majority of its outstanding voting stock from the owners of
such stock or those controlling the power to vote of such stock as of the
date of this lease shall constitute an assignment for the purpose of this
lease. An assignment for the benefit of creditors or by operation of law
shall not be effective to transfer any rights to the assignee without the
express written consent of the LESSOR having been obtained.
Notwithstanding any provision above or in this lease to the contrary,
before LESSEE may negotiate with any other person or party for the
assignment of this lease or subletting of all or part of said premises,
LESSEE must first notify LESSOR if it's desire to do so and offer to
relinquish its lease and lease rights in and to said premises, and to
surrender same, to the LESSOR; and upon receipt of such notice from LESSEE,
LESSOR shall have the right and option, upon notice to LESSEE, to terminate
this lease and to recapture for its own use and benefit the demised
premises; and LESSEE hereby agrees that if LESSOR exercises such right of
termination and recapture, this lease shall terminate and become absolutely
null and void upon not less than thirty (30) or more than sixty (60) days
after that date of LESSOR'S notice of termination to LESSEE. Upon such
termination, LESSEE shall surrender the premises and all leasehold
improvements to the LESSOR, and all accounts and interest of the parties
shall be settled to the effective date of termination. LESSEE further
understands and agrees that LESSOR'S right and option to terminate this
lease and recapture the premises shall be separate and distinct from its
right hereunder to consent or withhold consent to any proposed assignment
or sublease.
K. RULES AND REGULATIONS - Comply with and observe all reasonable
rules and regulations adopted by the LESSOR and applicable to the leased
premises and the CENTER as the same may from time to time be amended by
LESSOR, provided, however, that such rules and regulations shall be equally
and uniformly applicable to the majority of LESSOR'S other tenants in said
CENTER and LESSEE shall have been given written notice thereof.
L. SUBORDINATION - DOCUMENTATION REQUIRED BY MORTGAGEE - Provided
LESSOR'S mortgagee agrees to deliver to LESSEE a fully executed Non-
Disturbance Agreement in substance agreeable to LESSEE, LESSEE shall
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execute and deliver any instruments which may be required to effect the
subordination of this lease to the lien or liens of any mortgages or deeds
of trust upon the leased premises, whether in being or hereafter created,
and all renewals, replacements and extensions thereof, provided the
mortgagee or trustee named in said mortgages or deeds of trust shall agree
in writing to recognize LESSEE'S lease in the event of foreclosure so long
as LESSEE is not in default of this lease (it being hereby agreed by LESSEE
that, in any event, this lease shall, on the request of either LESSOR or
any mortgagee of the premises, be subordinate to any first mortgages or
deeds of trust that may now exist or be hereafter placed upon the subject
premises and to any and all advances made or to be made thereunder).
LESSEE also agrees that any mortgagee or trustee may elect to have this
lease made a prior lien to its mortgage or deed of trust, and in the event
of such election and upon notice by such mortgagee or trustee, or by
LESSOR, to LESSEE to that effect, this lease shall be deemed prior in lien
to said mortgage or deed of trust, whether this lease is dated prior or
subsequent to the date of said mortgage or deed of trust. LESSEE further
agrees that upon request, it shall promptly execute and deliver whatever
instruments may be reasonably required for such purposes and to carry out
the intent of this provision.
Additionally, LESSEE shall, at any time and from time to time upon
request by LESSOR, promptly execute and deliver to LESSOR or to such other
party designated by LESSOR a statement in writing in such form as may be
prescribed certifying that this lease is unmodified and in full force and
effect (or if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), and the dates to
which the Minimum Rents and other sums and charges due under the lease have
been paid, and stating whether or not to the best of LESSEE's knowledge
LESSOR is in default in the performance of any covenant, agreement, term,
provision or condition contained in this lease, and if so, specifying each
such default of which the LESSEE may have knowledge, it being intended that
any such statement delivered pursuant hereto may be relied upon by any
prospective purchaser or tenant of the improvements or of the improvements
and the land, any mortgagee or prospective mortgagee thereof, or any
prospective assignee of any mortgagee thereof. LESSEE also shall promptly
execute and deliver on request by LESSOR such other similar or related
certificates or instruments as LESSOR or any institutional lender may
reasonably require or desire with respect to this lease.
In the event of the sale or assignment of all or part of LESSOR'S
interest in the CENTER, or in the event of any proceedings brought for the
foreclosure of, or exercise of the power of sale under, any mortgage
covering said premises and all or part of the CENTER, LESSEE shall and
hereby agrees to attorn to and recognize such purchaser or mortgagee as
landlord under this lease, and in any of such events, LESSOR shall not
thereafter be liable under this lease.
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M. SURRENDER OF PREMISES - Except as otherwise expressly provided in
other provisions of this Lease, surrender said leased premises to LESSOR
upon the expiration of the tenancy hereby created or hereinafter permitted
in as good condition as received, normal wear and tear, damage by acts of
God or other unavoidable casualty, excepted.
N. WASTE OR NUISANCE - Not commit or suffer to be committed any
waste upon the leased premises or any nuisance to be maintained thereon
which may disturb the quiet enjoyment of any other tenants in the building
or the CENTER of which the leased premises are a part.
O. INSPECTION - Permit the LESSOR or LESSOR'S authorized agents to
enter the leased premises at all reasonable times with prior notice to
LESSEE, except in cases of emergency, for the purpose of making
examinations of and/or necessary repairs to same and, within six (6) months
from the expiration of the lease term, to show said premises to prospective
purchasers or tenants, provided, however, that no rights hereunder
exercised by LESSOR shall be deemed to impose upon the LESSOR any
obligation for the care, maintenance or repair of said leased premises or
any part thereof except as otherwise in this lease expressly stated and
contained.
P. EMPLOYEE PARKING - Cause its employees to park their cars only in
locations in said CENTER designated by LESSOR. Upon written request from
the LESSOR, LESSEE shall promptly furnish to LESSOR the license numbers of
its employees' automobiles for the purpose of aiding LESSOR to ascertain
employees violating this parking restriction.
Q. ADVERTISING - Cooperate fully with the LESSOR and other tenants
of the CENTER in promoting the use of trade names, slogans, logos and the
like as may be adopted for promotion of the CENTER; and to specify in all
forms of advertising of its business at said CENTER that same is located in
the THE SHOPPES AT PRESTIGE PLAZA Shopping Center.
R. SOLICITATION - Not solicit, or permit its employees, agents or
representatives to solicit, any business in or upon the common areas of the
CENTER nor distribute any handbills or other advertising matter in such
areas.
S. AUCTION AND OTHER SALES - Not conduct or permit any sale by
auction in, upon or about the premises, whether said auction be voluntary,
involuntary or pursuant to any assignment for the benefit of creditors, or
pursuant to any bankruptcy or other insolvency proceeding; and no fire,
bankruptcy, and or going out of business sale shall be conducted in, upon
or about the premises.
14. OTHER COVENANTS OF LESSOR: In addition to the foregoing covenants and
conditions with which LESSOR has agreed to comply, the LESSOR hereby
further agrees that it shall:
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A. LIABILITY INSURANCE - Keep in force at all times public liability
and property damage insurance in companies authorized to do business in
______________ and ______________ County with respect to all common areas
of said CENTER, with a combined single limit coverage of not less than One
Million and no/100 Dollars ($1,000,000.00) on account of bodily injuries
and/or death and property damage.
B. FIRE INSURANCE - Carry and maintain fire and extended coverage
insurance (including standard all risk perils and rent loss coverage) upon
the entire CENTER and the premises hereby leased. Such insurance coverage
(except for a $1,000 deductible) shall cover LESSOR'S insurable value in
the CENTER and premises hereby leased, designated as "replacement cost",
and not less than the amount which may from time to time be required by any
mortgagee or other lending institution having an interest in the CENTER.
C. QUIET ENJOYMENT - Be lawfully seized and in possession of the
leased premises on the date hereof and, upon LESSEE paying the rent and
performing all covenants and agreements herein stipulated to be performed
by LESSEE, allow said LESSEE to have the peaceful and quiet enjoyment and
possession of said premises during the full term of this lease without any
manner of hindrance or molestation on the part of LESSOR or anyone claiming
by, through or under LESSOR.
15. OTHER MUTUAL COVENANTS: In addition to the foregoing covenants and
conditions with which the parties hereto have agreed to comply, the LESSOR
and LESSEE do hereby further mutually agree that:
A. WAIVER OF SUBROGATION - LESSOR and LESSEE hereby waive all rights
of recovery in causes of action which either party has or may have or which
may arise hereafter against the other, whether caused by negligence or
otherwise, for any damage to the premises or contents therein or to the
CENTER or any part thereof caused by any of the perils which are normally
covered under approved ______________ broad form policies of fire and
extended coverage, building and contents and business interruption
insurance or for which either party may be reimbursed as a result of
insurance coverage affecting any loss suffered by it; and further provided
that the foregoing waivers do not invalidate any policy of insurance of the
parties hereto, now or hereafter issued, it being stipulated by the parties
hereto that the waivers shall not apply in any case in which the insurance
application thereof would result in the invalidation of any such policy of
insurance.
B. FIXTURES AND PERSONALTY - All personal property installed in or
brought upon the leased premises by the LESSEE, in the nature of furniture,
fixtures, business equipment, display cases, racks and supplies, shall
remain the sole property of the LESSEE, and the same at any time may be
removed (and if directed by LESSOR at the expiration or sooner termination
of this lease, shall be removed) by the LESSEE, provided, however, that
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LESSEE shall promptly repair any damage to the premises occasioned by such
removal. In addition to repairs of any and all damage to the walls,
floors, ceiling or roof or parts thereof, or any other appurtenant parts of
the demised premises, which may be occasioned by removal of LESSEE'S
property, LESSEE shall also be required, at LESSOR'S direction, to repair
and/or restore such other improvements or changes in and to the premises
which are specifically made for the conduct of LESSEE'S business such as
but not limited to (if applicable) the restoration of the floor to a single
uniform level, the repair and restoration of the roof of the premises by a
contractor selected or approved by LESSOR of all roof or wall cuts
necessitated for LESSEE'S business, and the removal (to the point of entry
into the premises) of all electrical, plumbing, gas and telephone lines, as
well as all mechanical lines, pipes or stacks, and the proper stubbing of
said lines, pipes or stacks at such point of entry into the premises. Any
such personal property left by LESSEE upon the premises after the
expiration of the term of this lease may be placed in storage by LESSOR at
LESSEE'S sole expense or retained by LESSOR at the premises and, if same
shall not be called for within ten (10) calendar days after written notice
from LESSOR, said property shall be deemed to be abandoned by LESSEE, and
LESSOR may do as it sees fit with same.
C. INDEMNIFICATION - Except for damages and/or injuries sustained by
persons or property while in or upon the leased premises which damages or
injuries are caused in whole or in part by the negligence or misconduct of
the LESSOR, its employees, agents or representatives, the LESSEE does
hereby covenant and agree to indemnify and hold harmless the LESSOR from
and against any and all claims and causes of action relating or with
respect to such damages or injuries arising during the term of this lease.
D. DAMAGE OR DESTRUCTION - In the event the leased premises shall be
damaged or destroyed by fire or other casualty, the LESSOR hereby agrees
that it shall, subject to delays which may arise by reason of adjustment of
loss under insurance policies and except as otherwise provided in this
Lease, promptly commence the complete restoration or replacement of same
(except for leasehold improvements hereafter made by LESSEE which shall be
LESSEE's responsibility) to a tenantable condition at least as good as, or
better than, the condition of said premises prior to the happening of such
fire or other casualty. If the LESSOR shall not cause said restoration or
replacement to be substantially completed and the said premises made ready
for occupancy within 180 calendar days after the date of such fire or other
casualty, provided, however, that LESSOR shall have an additional number of
calendar days over and above said 180 calendar days equal to the number of
calendar days that LESSOR is actually delayed in said completion by reason
of any "force majeure", as that term is hereinafter defined, then LESSEE
shall have the option of terminating this lease by giving written notice to
LESSOR of its intention to do so, and such termination shall be deemed to
be effective upon the date such notice is received by LESSOR.
Additionally, during the time said leased premises are being restored or
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replaced and until completion thereof, the LESSEE's Minimum Rent, other
than Percentage Rent, shall be proportionately and equitably reduced based
upon the total usable space remaining available to LESSEE for the operation
of its business.
In the event that the leased premises shall at any time be
substantially or wholly damaged or destroyed by fire or other casualty
(meaning damage equal to fifty percent (50%) or more of the full value of
the replacement cost thereof), and such damage shall occur at a time when
there is less than one (1) year of said primary lease term or any renewal
term remaining, the LESSOR shall have the option of terminating this lease
by giving written notice to the LESSEE within sixty (60) calendar days
after the happening of such fire or other casualty of its intention to do
so. If the LESSOR shall not give to the LESSEE such written notice of
termination within the aforesaid prescribed time, it shall be presumed and
binding upon said LESSOR that LESSOR does not intend to terminate this
lease and, from and thereafter, LESSOR shall not have such right of
termination. Additionally, after the elapse of said sixty (60) calendar
days period and without the LESSOR having given notice of termination as
aforesaid, the LESSOR shall as aforesaid promptly commence the complete
restoration or replacement of said premises.
E. FORCE MAJEURE - The term "force majeure" is hereby defined as
being any strike, embargo, material, labor or transportation shortage, act
of God, act of public enemy, act of duly constituted governmental
authority, flood, fire, riot, civil disturbance, or any other circumstance
beyond the party's control other than a party's financial inability to pay
its debts as they come due, whether of the kind or nature specified or not,
the specification herein of certain causes not being exclusive of any other
causes beyond said party's control.
F. CONDEMNATION - In the event the leased premises or any part
thereof shall be taken in any condemnation proceeding under the right of
eminent domain, whether the same be exercised by any Federal, state or
local government agency or by anyone else having such right, or should said
leased premises or any part thereof be conveyed under threat of such a
taking or condemnation, so that the said leased premises or remaining
portion thereof shall not be reasonably adequate and satisfactory for the
conduct and operation of LESSEE's business in substantially the same manner
and degree as immediately prior to said taking, condemnation or conveyance,
then either LESSOR or LESSEE, upon written notice to the other party within
thirty (30) calendar days after such taking, condemnation or conveyance,
may cancel and terminate this lease. Upon such notice of cancellation and
termination, all rights and obligations of the parties hereunder (except
for claims of either party in existence prior to such condemnation or
conveyance) shall cease and be and become null and void as of the actual
date of such taking, condemnation or conveyance. Except for the
unamortized portion of any leasehold improvements provided and paid for by
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LESSEE, or for any claim LESSEE may have for relocation expenses, the
proceeds of any such condemnation or taking, whether for all or part of
said premises, shall belong to the LESSOR.
G. DEFAULT OF LESSEE - In the event the LESSEE shall fail to pay any
of the rent or other sums and charges herein required by it to be paid and
LESSEE shall further fail to pay all of aforesaid sums due within ten (10)
calendar days after receipt of written notice from LESSOR advising LESSEE
of such default, or in the event the LESSEE shall fail to perform and
comply with any other covenants and conditions of this lease herein
required by it to be performed and complied with, and LESSEE shall further
fail to perform and comply with such covenants and conditions and cure such
default within thirty (30) calendar days after receipt of written notice
from LESSOR advising LESSEE of such default (provided, that if LESSEE
proceeds with due diligence during such thirty (30) day period to cure such
default and is unable by reason of the nature of the work involved to cure
the same within said thirty (30) days, then LESSEE shall have an additional
period of time not to exceed fifteen (15) days to cure such default;
provided, further, however, that such extension of time shall not subject
LESSOR to any liability, and the interest of LESSOR in the demised premises
shall not be jeopardized by reason thereof), or in the event the LESSEE
shall be adjudicated a bankrupt or a voluntary petition in bankruptcy be
filed by LESSEE, or should this leasehold be taken under execution,
attachment or other process of law, or should LESSEE make an assignment for
the benefit of creditors or a receiver or trustee be appointed for LESSEE,
and said bankruptcy adjudication or petition, execution or attachment,
assignment for the benefit of creditors or appointment of receiver or
trustee, not be vacated, released, dismissed or otherwise corrected within
sixty (60) calendar days after the date of same, or should LESSEE vacate or
abandon said premises, the terms "vacate" or "abandon" for purposes of this
paragraph being defined as LESSEE'S failure to open the leased premises for
a period of five (5) consecutive days, except where LESSEE shall either
have the right hereunder to remain closed for such period or same is due to
reasons constituting force majeure, then, in any of the aforesaid events,
without further written notice from LESSOR to LESSEE, and without
terminating this lease, or, if LESSOR shall elect to terminate this lease,
upon notice to LESSEE of such termination, the said LESSOR shall have the
immediate right to enter and repossess the leased premises by force or
otherwise, without any requirement of legal proceeding or court order, to
have the locks on all doors to the premises changed, and to remove
therefrom the said LESSEE and LESSEE's property, and anyone claiming by,
through or under the LESSEE; or, in the alternative, LESSOR may terminate
this lease and allow LESSEE to remain in possession of said premises and to
continue in business thereon upon a month to month tenancy at the same
rents, terms and conditions as set forth in the terminated lease except as
to term, and LESSOR may thereafter terminate such month to month tenancy
upon thirty (30) days written notice to LESSEE; and, whether or not LESSOR
shall have terminated this lease or LESSEE'S occupancy of the premises,
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LESSOR shall have full right to xxx for and collect all sums or amounts
with respect to which LESSEE may then be in default and accrued up to the
time of such entry or termination, including damages to the LESSOR by
reason of any breach or default on the part of the LESSEE, or the LESSOR
may bring suit for the collection of such rents and damages without
entering into possession of the premises or avoiding this lease.
LESSEE agrees that LESSOR'S election hereunder to terminate this lease
and to allow LESSEE to remain in occupancy of the premises and to continue
in business thereon pursuant to the same rents, terms and conditions set
forth in the terminated lease, except as to term, shall not in any way
relieve LESSEE from its responsibility and obligation to be and remain
liable for all rents and other sums due and to become due and all other
obligations of the LESSEE set forth in the lease, including repair and
maintenance obligations, for the period equating to the balance of time
remaining between the date of termination of the lease and the date which
would have been the normal expiration date of the lease term had this lease
not been terminated; and LESSEE specifically agrees that LESSOR'S damages
shall include but not be limited to the value of such rents and other sums
and obligations which will continue for such period, plus interest thereon,
court costs and legal fees.
In addition to, but not in limitation of any of the remedies set forth
in this lease or given to the LESSOR by law or in equity, LESSOR shall have
the right and option, in the event of any default by the LESSEE under this
lease and the continuance of such default after the period of notice above
provided, to retake possession of the premises from the LESSEE by summary
proceedings or otherwise, and it is agreed that the commencement and
prosecution of any action by the LESSOR in forcible entry and detainer,
ejectment or otherwise, or any execution of any judgment or decree obtained
in any action to recover possession of the premises, shall not be construed
as an election to terminate this lease unless LESSOR expressly exercises
its option hereinbefore provided to declare the term hereof ended, whether
or not such entry or reentry be had or taken under summary proceedings or
otherwise, and shall not be deemed to have absolved or discharged the
LESSEE from any of its obligations and liabilities for the remainder of the
term of this lease, and the LESSEE shall, notwithstanding such entry or
reentry, continue to be liable for the payment of the rents and all other
sums and charges hereunder and the performance of the other covenants and
conditions hereof and shall pay to the LESSOR all monthly deficits after
such reentry in monthly installments as the amounts of such deficits from
time to time are ascertained, and, if in the event of any such ouster, the
LESSOR rents or leases the premises to some other person, firm or
corporation (whether for a term greater, less than or equal to the
unexpired portion of the term created hereunder) for an aggregate rent
during the portion of such new lease coextensive with the term created
hereunder which is less than the rent and other charges which the LESSEE
would pay hereunder for such period LESSOR may, immediately upon the making
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of such new lease or the creation of such new tenancy, xxx for and recover
the difference between the aggregate rental provided for in said new lease
for the portion of the term coextensive with the term created hereunder and
the rent which LESSEE would pay hereunder for such period, together with
any expense to which the LESSOR may be put for brokerage commission,
placing the premises in tenantable condition for any new tenant, or
otherwise with respect to said premises. If such new lease or tenancy is
made for a shorter term than the balance of the term of this lease, any
such action brought by the LESSOR to collect the deficit for that period,
shall not bar the LESSOR from thereafter suing for any loss accruing during
the balance of the unexpired term of this lease. Notwithstanding any
provisions to the contrary elsewhere in this subparagraph G., in the event
LESSOR shall give LESSEE written notice twice in any lease year that the
payment of rent or other lease charges is more than ten (10) days late past
the due date thereof, LESSOR shall not thereafter during such same lease
year be required to further notify LESSEE of such a late payment. Further,
LESSOR may then proceed, without further notice, to terminate this lease
and/or to commence eviction proceedings against LESSEE, or to take any
other action against LESSEE for default as may be permitted under this
lease, at law or in equity, without the LESSEE having any further rights
hereunder to cure or remedy such default; and LESSEE hereby waives any
right it may have or to which it may be entitled, to cure or remedy a
default in the payment of rent or other lease charges after it has in any
lease year been twice notified by LESSOR of such late payment thereof, the
LESSEE acknowledging and agreeing that LESSOR ought not to be required,
more than twice in any lease year, to suffer or permit any tenant to
unfairly circumvent (for whatever reason) the rental provisions of this
lease which require rent and other charges to be paid by certain specified
dates, without notice or demand.
If LESSEE at any time shall fail to pay any Taxes, assessments, liens
or insurance payments provided for hereunder, or shall fail to make any
other payment or perform any other act required by this lease to be made or
performed by it, LESSOR, without waiving or releasing LESSEE from any
obligation or default under this lease, may (but shall not be obligated to)
at any time thereafter make such payment or perform such act for the
account and at the expense of LESSEE. All sums so paid by LESSOR and all
costs and expenses so incurred, shall accrue interest at the highest annual
rate allowed under the laws of the State of ___________, from the date of
payment or incurring thereof by LESSOR and shall constitute additional rent
payable by LESSEE under this lease and shall be paid by LESSEE to LESSOR
upon demand. All rights and remedies of LESSOR herein enumerated shall be
cumulative and none shall exclude any other remedies allowed at law or in
equity.
H. LIABILITY FOR DAMAGE - Except for its own negligence or as
otherwise in this lease provided, LESSOR shall not be liable for any damage
to the premises nor to any of its contents or other personal property
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therein done or occasioned by or from the electrical system, the heating or
air conditioning system, the sprinkler system or the plumbing and sewer
systems (including damage caused by the freezing or bursting of pipes), in,
upon or about the premises or the building of which the premises are a
part, nor for damages occasioned by water, snow or ice being upon or coming
through the roof, walls, windows, doors or otherwise, nor for any damage
arising from acts of negligence of co-tenants or other occupants of the
building or buildings of which the premises may be a part, or the acts of
any owners or occupants of adjoining or contiguous property.
I. EXCULPATION - If LESSOR shall fail to perform any covenant, term
or condition of this Lease upon LESSOR'S part to be performed, or, if
LESSOR is liable for any negligent act or omission hereunder, and if as a
consequence of such default LESSEE shall recover a money judgment against
LESSOR, such judgment shall be satisfied only out of the proceeds of sale
received upon execution of such judgment and levied thereon against the
right, title and interest of LESSOR in the Shopping Center and out of rents
or other income from such Shopping Center receivable by LESSOR, or out of
the consideration received by LESSOR from the sale or other disposition of
all or any part of LESSOR'S right, title and interest in the Shopping
Center, and neither LESSOR nor any of the general or limited partners of
LESSOR if LESSOR is a partnership shall be liable for any deficiency.
J. NOTICES - Whenever any notice is required or permitted hereunder,
the same shall be given in writing, sent by registered or certified United
States mail, or by reputable nationwide, overnight carrier, postage or fees
prepaid, return receipt requested, and shall be addressed to the address of
the party to be served as first hereinbefore given, or at such other
address as either party may hereafter and from time to time designate in
writing to the other. If either party's address shall be changed during
the term hereof and written notice of such change not be given to the other
party as hereinbefore prescribed, any notice and the contents thereof, if
properly mailed or delivered as stated to the last known address of the
party whose address has been changed, shall be valid and binding upon said
party for all intents and purposes. All notices hereunder, if given as
herein directed, shall be deemed to be effective upon the date such notice
is received. Any refusal to accept delivery of any notice by a party
hereto shall be deemed to be a receipt of such notice as of the date of
such refusal.
K. LACHES - The waiver of any covenants or conditions or of the
performance of and compliance with same, or the acquiesced breach thereof,
shall not constitute a waiver of any subsequent non-performance and non-
compliance or of any subsequent breach of such covenants or conditions, nor
will such waiver justify or authorize the non-observance of any other
covenant or condition hereof.
L. LEGALITY - Should any one or more of the terms and provisions of
this lease be declared void or in violation of law by any competent
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authority, this lease and its remaining covenants and conditions shall,
notwithstanding such determinations, continue and be of full force and
effect.
M. TITLES - All paragraph titles herein contained shall be for
reference and convenience only and shall not constitute a substantive part
of this lease.
N. LAW - This lease and each and every provision herein contained,
as the same may from time to time be amended, or any disputes or
misunderstandings involving same, shall at all times during the term hereof
be governed and controlled by the applicable laws of the State of
__________. Any action or proceeding arising under this lease shall be
brought in the courts of ________________ County, _______________;
provided, however, that if any such action or proceeding arises under the
Constitution, laws or treaties of the United States of America, or if there
is a diversity of citizenship between the parties hereto, so that it is to
be brought in a United States District Court, it shall be brought in the
United States District Court for the Southern District of Ohio.
O. MEMORANDUM OF LEASE - In the event, either simultaneously with
the execution of this lease or at anytime thereafter during the term
hereof, LESSOR shall request that a Memorandum of this lease ("Memorandum
of Lease") be executed and recorded in the public records of
________________ County, LESSEE hereby agrees to cooperate with LESSOR and
to execute said Memorandum of Lease for such purposes. When prepared, such
document shall set forth the names and addresses of both LESSOR and LESSEE,
a description of said leased premises and said CENTER, the duration of the
term of lease (including the exact commencement and ending dates of each
term) and a reference to any special clauses contained in this lease which
might be of particular significance for recording purposes. Such
Memorandum of Lease shall not set forth the amount of any rents or other
sums or charges provided for under this lease. The parties further agree
that this lease instrument shall not at any time be recorded or made
public.
P. TIME OF ESSENCE - Time is of the essence with respect to the
compliance with and performance of each of the covenants and agreements
under this lease.
Q. LATE CHARGES - In the event that payment of any sum of money due
under this lease, including but not limited to Rent, Common Area
Maintenance charges, Taxes, Insurance charges, Marketing Fund fees and the
like, shall become overdue for ten (10) calendar days beyond the date on
which said sums of money are due and payable as in this lease provided, a
late charge of 1.50% per month (computed on a 30 day month) on the sums so
overdue, computed from the actual date stipulated for payment under this
lease to the date of receipt by LESSOR, shall become immediately due and
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payable by LESSEE to LESSOR for LESSEE's failure to make prompt payment of
said sums, and the full amount of late charges shall be payable by LESSEE
on demand. In the event of the non-payment for any reason of any such late
charges or any part thereof, LESSOR, in addition to all other rights and
remedies which it may have, shall have all the rights and remedies provided
for herein and by law as in the case of non-payment of rent. No failure by
LESSOR to insist upon the strict performance by LESSEE of LESSEE's
obligations hereunder to pay late charges shall constitute a waiver by
LESSOR of its right to enforce the provisions of this subparagraph in any
instance thereafter occurring. The provisions of this subparagraph Q.
shall not be construed in any way to extend the notice periods for default
as provided for in Clause 15.G. of this lease. By way of example only, the
amount of a late charge due and payable on a monthly rental payment of
$1,500.00 which was paid ten (10) days beyond the due date for such rental
payment would be computed as follows: $1,500.00 X .0150 = $22.50 (late
payment for 30 days) divided by 3 (i.e., late period of 10 days being 1/3rd
of 30 days) = $7.50 (amount of late payment actually due).
R. HOLDING OVER - LESSEE shall at the expiration or termination of
this lease by lapse of time or otherwise yield up and surrender immediate
possession of the demised premises to LESSOR. If LESSEE does not do so and
remains in possession of the demised premises after the expiration of the
term of this lease without having entered into a new written lease with
LESSOR, then even if LESSEE shall have paid and LESSOR shall have accepted
rent for such period of occupancy, LESSEE shall be deemed to be occupying
the premises only as a tenant from month-to-month, subject to all
covenants, conditions and agreements of this lease except as to the term
and rent, and either party hereto may terminate such tenancy by giving the
other party thirty (30) days written notice of such intent to terminate.
S. HEIRS AND ASSIGNS - This lease and all rights and obligations of
the parties herein contained shall inure to the benefit of and be binding
upon said parties and their respective heirs, executors, administrators,
successors and assigns.
T. ENTIRE AGREEMENT - This lease and all exhibits attached hereto
and forming a part hereof, or any amendments hereto, set forth all the
covenants, promises, agreements, conditions and understandings between the
LESSOR and LESSEE concerning the leased premises, and no subsequent
alteration, amendment, change or addition to this lease shall be binding
upon either LESSOR or LESSEE unless the same be reduced to writing and
signed by the party to be bound thereby.
U. NO RESERVATION - The submission of this lease to any party for
examination does not and shall not be nor constitute a reservation of or
option for said premises, and shall vest no right of any kind whatsoever in
any such party. This lease shall be and become effective as a lease only
upon the proper execution and delivery thereof by both LESSOR and LESSEE.
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V. MORTGAGEE PROTECTION CLAUSE - LESSEE agrees to give any mortgagee
by registered mail, a copy of any notice of default served upon LESSOR,
provided that prior to such notice LESSEE has been notified, in writing (by
way of notice of assignment of rents and leases, or otherwise) of the name
and address of such mortgagee. LESSEE further agrees that if LESSOR shall
fail to cure such default within the time provided for in this lease, then
the mortgagee shall have an additional thirty (30) days within which to
cure such default or if such default cannot be cured within that time, then
such additional time as may be necessary if within such thirty (30) days,
any mortgagee has commenced and is diligently pursuing the remedies to cure
such default (including but not limited to commencement of foreclosure
provided for, if necessary to effect such cure) in which event this lease
shall not be terminated while such remedies are being so diligently
pursued.
W. JOINT AND SEVERAL LIABILITY - In the event the parties signing
this lease for and on behalf of the LESSEE shall consist of more than one
individual, firm or corporation, then and in such event all such
individuals, firms or corporations shall be jointly and severally liable as
LESSEE under this lease.
X. PYLON SIGN - LESSOR agrees to erect a pylon sign on the Shopping
Center property, which pylon shall permit sign panels for four (4) tenants
in the Shopping Center. LESSOR further agrees that LESSEE may have one of
the sign panel spaces (34" x 70") on such pylon (LESSEE to choose the
location it prefers), the cost of which will be $____________. LESSEE
agrees to pay LESSOR (upon receipt of an invoice from LESSOR) the sum of
$______________ for such sign panel at the time same is to be installed.
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IN WITNESS WHEREOF, the LESSOR and LESSEE have caused this lease
to be duly executed as of the day and year first above set forth.
WITNESSES: LESSOR
____________________________ By______________________________________
____________________________
LESSEE
FAMILY BOOKSTORES COMPANY, INC.
____________________________ By______________________________________
____________________________
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