LEASE
THIS AGREEMENT ("Lease") is made as of ____________________,
2000, by and between EASTLAND SHOPPING CENTER LLC, a Delaware limited liability
company, having its principal office at 00000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx,
Xxx Xxxxxxx, 00000-0000 ("Landlord") and Chicago Pizza & Brewery, Inc., a
California corporation, having its principal office at 00000 Xxxxxxxxxx Xxxx.,
Xxxxx X, Xxxxxxx Xxxxx, Xxxxxxxxxx, 00000 ("Tenant").
PRELIMINARY STATEMENT
In consideration of the rents and covenants hereinafter set
forth, Landlord hereby leases to Tenant, and Tenant hereby rents from Landlord,
a portion of the land located in a shopping center development (the "Center")
known as Xxxxxxxxx Xxxxxxxxxxxx Xxxxxxxx, located in West Covina, California
(which shopping center is legally described in Exhibit A, attached hereto and
made a part hereof and shown on the site plan attached hereto as Exhibit B and
made a part hereof), designated as "Tenant's Site" on Exhibit B ("Tenant's
Site"), for remodeling thereof of an existing building consisting of
approximately 12,000 square feet of Floor Area (collectively "Tenant's
Building") and all rights, privileges, benefits, rights of way, easements and
appurtenances which are herein or hereafter granted to Tenant or which are
otherwise appurtenant thereto (all collectively hereinafter referred to as the
"Premises").
ARTICLE I
CERTAIN DEFINITIONS
As used in this Lease, the following terms have the following respective
meanings:
SECTION 1.01. INTENTIONALLY DELETED
SECTION 1.02. COMMON AREA. The term "Common Area" means all areas
within the boundaries of the Center that presently are or will be made available
from time to time for the non-exclusive use, convenience and benefit of all
"Occupants", as defined in Section 1.09, and their respective "Permittees", as
defined in Section 1.12.
Among other things, Common Area shall include: (i) the "Parking Area",
as defined in Section 1.11; (ii) sidewalks and walkways; (iv) landscaped and
planted areas; (v) all curbs and lighting standards, traffic and directional
signs and traffic striping and markings located within the Center; and (vi) all
utility and sewer lines and systems and other facilities serving the Center,
excluding those which specifically serve the Premises.
SECTION 1.03. FLOOR AREA. The term "Floor Area" as used in this Lease
means with respect to the Premises 12,000 square feet, and with respect to any
other leasable area in the Center the aggregate number of square feet of floor
space of all floor levels therein, including any mezzanine space, measured from
(i) the outside faces of all perimeter walls thereof other than any party wall
separating such premises from other leasable premises, (ii) the center lines of
any such party wall, (iii) the outside face of any interior wall, and (iv) the
building and/or leaseline adjacent to any entrance to such premises.
SECTION 1.04. INSURANCE REQUIREMENTS. The term "Insurance Requirements"
means all orders, rules, regulations and requirements of the applicable board of
fire underwriters, if any, or of any other board exercising similar functions,
and the requirements of all policies of insurance required to be carried by
Tenant or Landlord under this Lease, now or hereafter applicable to the Premises
or the Center, as the case may be.
SECTION 1.05. LANDLORD'S FISCAL YEAR. The term "Landlord's Fiscal Year"
shall mean a period of twelve (12) full consecutive calendar months, presently a
period from January 1 - December 31, a so-called "calendar year", which period
Landlord may modify from time to time.
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SECTION 1.06. LEASE TERM. The term "Lease Term" shall mean the period
from the Opening Date to the expiration of the "Initial Term", as defined in
Section 3.01. "Lease Term" shall also be deemed to include any "Option
Period(s)", as defined in Section 3.02, as to which Tenant's option to extend
the term hereof has been properly exercised.
SECTION 1.07. LEASE YEAR. The term "Lease Year" shall mean each
successive period of twelve (12) consecutive calendar months, commencing on the
first day of each January during the Lease Term. Any portion of the Lease Term
which is less than a full Lease Year, including, without limitation, the period
from the Opening Date through December 31st occurring thereafter, shall
constitute a "Partial Lease Year."
SECTION 1.08. LEGAL REQUIREMENTS. The term "Legal Requirements" means
all laws, ordinances, requirements, orders, directions, certificates of
occupancy, rules and regulations of federal, state, county and local
governments, and of all other governmental authorities having jurisdiction
thereof, now or hereafter applicable to the Premises, the Center or both, as the
case may be.
SECTION 1.09. OCCUPANT. The term "Occupant" or "Occupants" means
Landlord and any other Person entitled by lease or other instrument or
arrangement to use and occupy Floor Area within the Center, or one or some of
them, as the context may require.
SECTION 1.10. OPENING DATE. The "Opening Date" shall be deemed to be
March 1, 2000.
SECTION 1.11. PARKING AREA. The term "Parking Area" means all areas in
the Center which are set apart or used for the passage and parking of motor
vehicles and for pedestrian traffic incidental thereto, whether on grade or by
way of parking decks, including without limitation, traffic lanes, aisles, and
roadways, vehicle parking stalls, walkways, curbs, gutters and landscaping
within or adjacent to any such areas, grade separations, including beams and
retaining walls, within or adjacent to said areas, lighting standards, traffic
and directional signs, traffic striping and markings, and all other improvements
which at any time are erected on such areas for the purpose of accommodating the
foregoing uses.
SECTION 1.12. PERMITTEES. The term "Permittees" means all Occupants and
their respective officers, directors, employees, agents, partners, contractors,
customers, visitors, invitees, licensees and concessionaires.
SECTION 1.13. PERSON. The term "Person" and the term "Persons" mean
individuals, partnerships, firms, associations, corporations and any other form
of business organization, or one or more of them, as the context may require.
SECTION 1.14. POSSESSION DATE. The "Possession Date" shall be the date
upon which Landlord shall deliver actual and exclusive possession of the
Premises to Tenant with Landlord's Work (as defined in Section 6.01)
substantially completed.
SECTION 1.15. TANGIBLE NET WORTH. The term "tangible net worth" means
the excess of total consolidated assets over total consolidated liabilities,
total consolidated assets and total consolidated liabilities each to be
determined in accordance with generally accepted accounting principles
excluding, however, from the determination of total consolidated assets, all
assets which would be classified as excess of cost over the less of equity or
investment in subsidiaries or at the parent company level and any premium paid
in excess of assets acquired, all as determined under generally accepted
accounting principles.
SECTION 1.16. TENANT'S FAULT. The term "Tenant's Fault" shall mean
Tenant's or its agent's, contractor's or employee's negligence or willful
misconduct or failure to comply with Legal Requirements or Tenant's breach of
this Lease (including but not limited to Tenant's failure to timely submit plans
and specifications for Landlord's approval as required herein).
ARTICLE II
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DEMISE OF PREMISES
SECTION 2.01. DEMISE. Landlord, subject to the terms and conditions
hereof and for the Term herein set forth and for and in consideration of the
rents and covenants herein to be paid, kept and performed by Tenant, hereby
leases to Tenant and Tenant hereby takes and hires from Landlord the Premises.
SECTION 2.02. RIGHTS TO USE COMMON AREAS. Landlord hereby grants to
Tenant, its Permittees and their successors and assigns, for the benefit of the
Premises, an easement during the entire Term hereof to use all portions of the
Common Areas of the Center (including without limitation the Parking Areas), for
the purpose, consistent with the permitted uses herein, of (a) unobstructed
ingress to and egress from the Premises to and from other portions of the
Center; (b) for the passage and parking of vehicles; (c) for the passage and
accommodation of pedestrians; and (d) for the purpose of performing any work
permitted under this Lease or exercising any other rights of Tenant which are
granted under this Lease, such easements to be in common with Landlord, its
Permittees and those Occupants of the Center from time to time authorized by
Landlord to use the Common Areas for such purposes. The nature of the use of the
respective portions of the Common Areas shall be limited to the uses intended
for such portions from time to time. The foregoing easement:
(i) Shall be irrevocable unless otherwise specified during the
term hereof; (ii) Shall be non-exclusive unless otherwise
specified; (iii) Shall be appurtenant and not easements in gross;
and (iv) Shall expire upon the expiration or the earlier
termination hereof, or as otherwise specified in this Lease.
ARTICLE III
TERM
SECTION 3.01. TERM. This Lease shall commence on the date hereof and
extend through January 31, 2010 (the "Initial Term"). Following the Opening Date
the parties shall enter into an agreement in recordable form setting forth such
date.
SECTION 3.02. OPTIONS TO EXTEND. Provided Tenant is not in default of
this Lease beyond any applicable cure period and Tenant is open for business to
the public in accordance with Article VII of this Lease, Tenant shall have the
option to extend the Lease Term for one ( 1) successive period of five (5) years
(the "Option Period"). The option to extend as to the Option Period shall be
exercisable by written notice given to Landlord no later than one hundred eighty
(180) days prior to the expiration of the Initial Term Tenant shall have no
right to extend or renew this Lease other than for the aforesaid Option Period.
Any cancellation or termination of this Lease shall terminate Tenant's right to
the Option Period. Time is of the essence with respect to any exercise of the
Option Period by Tenant. If Tenant timely exercises the option to extend as to
an Option Period, the Lease Term shall be automatically extended upon all of the
same terms and conditions except Fixed Rent and Percentage Rent shall be as set
forth in Section 4.02 and Section 4.03 hereof. Notwithstanding the foregoing,
Landlord may reject as invalid any notice attempting to exercise the foregoing
option as to the Option Period or may cancel the Option Period within 30 days of
its inception if Tenant is in default of the provisions of this Lease (i) on the
date the notice exercising such option is received or (ii) on the date the
Option Period commences, unless Tenant has cured such default or commenced such
cure and is diligently prosecuting it to completion, within said thirty (30) day
period.
ARTICLE IV
RENT
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SECTION 4.01. RENT PAYMENT OBLIGATION. From and after the Opening Date
and throughout the Lease Term, Tenant shall pay to Landlord the sums set forth
in this Article as Rent, in lawful money of the United States, without any
notice, demand, offset, deduction or counterclaim whatsoever. The term "Rent"
shall be deemed to include "Fixed Rent" (as described in Section 4.02 hereof),
"Percentage Rent" (as described in Section 4.03 hereof) and all additional sums
payable by Tenant to Landlord pursuant to this Lease ("Additional Rent"). All
payments of Rent shall be payable to Landlord as follows: Payee: EASTLAND
SHOPPING CENTER LLC: Eastland File #54738 7, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000,
or such other place as Landlord may designate from time to time, in writing.
SECTION 4.02. FIXED RENT
(a) Tenant shall pay Landlord as "Fixed Rent" the following:
1) from Opening Date through February 28, 2001 Two Hundred Thirty Three
Thousand and Sixty and 00/100 Dollars ($233,060.00), payable in equal
consecutive monthly installments of Nineteen Thousand Four Hundred Twenty One
and 67/100 Dollars ($19,421.67) ("Period 1");
2) from March 1, 2001 through August 31, 2002 Two Hundred Seventy
Thousand and Sixty and 00/100 Dollars ($270,060.00), payable in equal
consecutive monthly installments of Twenty Two Thousand Five Hundred and Five
and 00/100 Dollars ($22,505.00) (hereinafter "Period 2");
3) from September 1, 2002 through September 30, 2007 Two Hundred Ninety
Five Thousand and Sixty and 00/100 Dollars ($295,060.00), payable in equal
consecutive monthly installments of Twenty Four Thousand Five Hundred and Eighty
Eight and 33/100 Dollars ($24,588.33)(hereinafter "Period 3"); and
4) from October 1, 2007 through January 31, 2010 Three Hundred Twelve
Thousand and Sixty and 00/100 Dollars ($312,060.00), payable in equal
consecutive monthly installments of Twenty Six Thousand and Five and 00/100
Dollars ($26,005.00) (hereinafter "Period 4"); and
5) for the Option Period Three Hundred Forty One Thousand Four Hundred
and Thirty Five and 00/100 Dollars ($341,435.00), payable in equal consecutive
monthly installments of Twenty Eight Thousand Four Hundred and Fifty Two and
92/100 Dollars ($28,452.92) (hereinafter "Period 5").
Fixed Rent shall be paid monthly in advance on or before the first day
of each month during the Lease Term, except that if the Opening Date is not the
first day of a calendar month, Fixed Rent for the period from the Opening Date
to the last day of the month in which the Opening Date occurs shall be
apportioned on the basis of a 365-day year and paid on the first day of the
following month.
SECTION 4.03. PERCENTAGE RENT.
(a) Tenant shall pay to Landlord, as "Percentage Rent", a sum equal to
6.00% of "Gross Sales", as defined in Section 4.04 herein, in excess of the
following "Annual Breakpoint(s)":
1) $1,883,334.00 during each Lease Year of Period 1;
2) $2,500,000.00 during each Lease Year of Period 2;
3) $2,916,666.00 during each Lease Year of Period 3;
4) $3,200,000.00 during each Lease Year of Period 4; and
5) $3,689,583.00 during each Lease Year of Period 5.
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(b) Percentage Rent shall be payable to Landlord within sixty (60) days
after the end of each Lease Year.
(c) In the event the payment of Percentage Rental shall be applicable
for less than a full consecutive twelve (12) month period (such partial lease
year hereinafter to be referred to as the "portion period"), payment of
Percentage Rental for such portion period(s) shall be determined as follows. In
the event a given Lease Year contains less than a full consecutive twelve (12)
month period (such partial lease year hereinafter to be referred to as the
"portion period"), Percentage Rent for such portion period(s) shall be
determined as follows. The Annual Breakpoint shall be applied to the full twelve
(12) month period succeeding the commencement of the portion period or the
twelve (12) month period preceding the last day of the portion period if there
is not a twelve (12) month period succeeding the commencement of the portion
period, such Annual Breakpoint, shall hereinafter be referred to as the "Special
Annual Breakpoint". Percentage Rental due for such portion period shall be
calculated by determining the amount by which 6.00% of Gross Sales during such
twelve (12) month period exceeds the applicable Special Annual Breakpoint and
multiplying such amount by a fraction, the numerator of which shall be the
number of days in the portion period and the denominator of which shall be 365.
Percentage Rental for such portion period shall be payable within the sixty (60)
days after the expiration of the applicable twelve (12) month period, along with
the Tenant's statement of Gross Sales for such period as provided in Section
4.03 of this Lease.
SECTION 4.04. GROSS SALES.
(a) The term "Gross Sales" as used herein shall be construed to include
the entire amount of the actual sales price, whether for cash or otherwise, of
all sales of food, beverages, merchandise or services and other receipts
whatsoever of the business conducted in or from the Premises by Tenant, any
subtenant, licensee or concessionaire of Tenant or otherwise, including, without
limitation: mail, catalogue, closed circuit television, computer, other
electronic or telephone orders received or filled at the Premises; all deposits
not refunded to purchasers; and the entire amount of the actual sales price and
all other receipts for sales and services by Tenant, any subtenant, licensee or
concessionaire of Tenant or otherwise, in or from the Premises. A "sale" shall
be deemed to have been consummated for the purposes of this Lease, and the
entire amount of the sales price shall be included in Gross Sales, at such time
as (i) the transaction is initially reflected in the books or records of Tenant
or any subtenant, licensee or concessionaire of Tenant, or (ii) Tenant or any
subtenant, licensee or concessionaire of Tenant receives all or any portion of
the sales price, or (iii) the applicable goods or services are delivered to the
customer, whichever first occurs, irrespective of whether payment is made in
installments, the sale is for cash or for credit, or all or any portion of the
sales price has actually been paid at the time of inclusion in Gross Sales or at
any other time.
(b) Notwithstanding anything to the contrary contained in subsection
(a) hereinabove, Gross Sales as defined herein shall be adjusted by excluding
the following:
(1) The selling price of all merchandise sold in or from the
Premises returned by customers and accepted for full credit or the amount of
discounts and allowance thereon, or the price allowed on all merchandise traded
in by customers for credit or the amount of credit for discounts and allowances
made in lieu of acceptance thereof;
(2) Goods returned to sources, including shippers or
manufacturers, or transferred to another store or warehouse owned by or
affiliated with Tenant (where such exchange of goods or merchandise is made
solely for the convenient operation of the business of Tenant and not for
purposes of consummating a sale which has theretofore been made in or from the
Premises and/or for the purposes of depriving Landlord of the benefit of a sale
which otherwise would be made in or from the Premises);
(3) Alteration workroom charges and delivery charges;
(4) Interest, service or sales carrying charges or other
charges, however denominated, paid by customers for the extension of credit on
sales and where not included in the merchandise sales price;
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(5) Receipts from public telephones, stamp machines, public
toilet locks, or vending machines installed solely for use by Tenant's
employees;
(6) Sales taxes, so-called luxury taxes, consumers' excise
taxes, gross receipts taxes and other similar taxes now or hereafter imposed
upon the sale of merchandise or services, but only if collected separately from
the selling price of goods, merchandise or services and collected from
customers;
(7) Sales of trade fixtures or equipment which are not stock
in trade, or the proceeds from a bulk sale (made out of the ordinary course of
Tenant's business at the Premises);
(8) Gift certificates, or like vouchers, until such time as
the same shall have been converted into a sale by redemption;
(9) Uncollected accounts in an amount not to exceed two
percent (2%) of Gross Sales per annum as written off by Tenant as bad debts for
income tax purposes, provided, however, that such bad debt amounts shall be
deducted or excluded from Gross Sales in the Lease Year in which they are
written off; if any amount previously written off as a bad debt is later
collected, in whole or in part, the amount collected shall be included in Gross
Sales in the Lease Year in which collected;
(10) Sales to employees at discounted or reduced prices,
provided said exclusion for discounted merchandise shall not exceed two percent
(2%) of Gross Sales per annum; and
(11) The sums and credits received in settlement of claims for
loss or damaged merchandise.
SECTION 4.05. TENANT'S RECORDS.
(a) Tenant shall prepare and keep full, complete and proper books and
source documents, in accordance with Generally Accepted Accounting Principles,
of the Gross Sales, whether for cash, credit or otherwise, of each separate
department at any time operated within the Premises and of the operations of
each subtenant, concessionaire, licensee and/or assignee, and shall require and
cause all such parties to prepare and keep books, source documents, records and
accounts sufficient to substantiate those kept by Tenant. All of such books and
source documents shall be open to inspection of, and may be copied or extracted
from, in whole or in part, by Landlord or Landlord's authorized representative
or agent at any time within three (3) years after the expiration of the subject
Lease Year at Tenant's accounting officeupon ten (10) days written notice.
(b) Tenant shall furnish to Landlord, within fifteen (15) days after
the end of each month of each Lease Year, a statement of the amount of Gross
Sales made from the Premises during the applicable period. Tenant shall also
furnish to Landlord, within sixty (60) days after the expiration of each Lease
Year, a complete statement, certified by the chief financial officer or chief
executive officer or outside accountant employed by Tenant, showing in all
reasonable detail the amount of such Gross Sales made by Tenant from the
Premises during the preceding Lease Year or Partial Lease Year. Tenant shall
require all of its subtenants, concessionaires, licensees and/or assignees, if
any, to furnish a similar statement.
(c) Notwithstanding the acceptance by Landlord of payments of Rent,
Landlord shall have the right to audit all Rent and other charges actually due
hereunder. Landlord may at any time upon ten (10) days' prior written notice to
Tenant, but not more than frequent than once per year cause a complete audit ()
to be made by an auditor selected by Landlord of the entire records and
operations of Tenant and/or any subtenants, concessionaires, licensees and/or
assignees relating to the Premises for the period covered by any statement
issued or required to be issued by Tenant or a concessionaire.. Tenant shall
make available to Landlord's auditor at the Premises or at Tenant's principal
accounting office in the United States, within ten (10) days following
Landlord's notice requiring such audit, all of the books, source documents,
accounts, records and
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sales tax reports of Tenant and any of its concessionaires which such auditor
deems necessary or desirable for the purpose of making such audit. If such
audit discloses that Premises' Gross Sales as previously reported for the
period audited were understated, Tenant shall immediately pay to Landlord the
additional percentage rental due for the period audited. Further, if such
understatement was in excess of two percent (2%) of the Premises' actual
Gross Sales as disclosed by such audit, Tenant shall immediately pay to
Landlord the cost of such audit, and if such understatement was in excess of
ten percent (10%) of Premises' Gross Sales as disclosed by such audit,
Landlord may declare this Lease terminated, in which event this Lease shall
cease and terminate on the date specified in such notice with the same force
and effect as though the date set forth in such notice were the date set
forth in this Lease for expiration of the Lease Term, and Tenant shall vacate
and surrender the Premises on or before such date in the condition required
by this Lease for surrender upon the expiration of the Lease Term.
SECTION 4.06. REAL ESTATE TAXES.
(a) Landlord shall be responsible for the payment of all Taxes that may
be imposed or become a lien on any portion of the Center (including the
Premises). As used herein, the term "Taxes" shall mean any and all taxes,
surcharges, assessments, levies, fees and other governmental charges and
impositions of every kind or nature, regular or special, direct or indirect,
presently foreseen or unforeseen or known or unknown, levied or assessed by
municipal, county, state, federal or other governmental taxing or assessing
authority (i) upon, against or with respect to the real estate upon which the
Center, or any part of it, is located and to any improvements located in the
Center, and (ii) any other taxes which Landlord becomes obligated to pay with
respect to the Center, irrespective of whether the same are assessed as real or
personal property; expressly excluding however, any taxes, surcharges,
assessments, levies, fees and other governmental charges and impositions which
are used by the taxing authority to construct capital improvements to the Center
or surrounding areas as a condition of constructing, or as a means of financing,
any improvements other than the Premises. Nothing contained in this Lease shall
be deemed or construed to require Tenant to pay or discharge any tax which may
be levied upon the net income or profits of the Landlord or any franchise,
inheritance, gift, succession or estate taxes which may be levied against the
estate or interest of the Landlord, or any personal property taxes which may be
levied against the personal property of Landlord, as distinguished from items
used in the operation and maintenance of the Center.
(b) Taxes shall not include any estate, inheritance, succession,
corporate franchise, personal property taxes, taxes on any fixtures or
inventory, transfer, income or excess profit tax, which is in fact personal to
Tenant, or any personal property taxes which may be levied against the personal
property of Landlord, as distinguished from items used in the operation and
maintenance of the Center.
[THIS SECTION DELETED INTENTIONALLY]
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ARTICLE V
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SIGNS
SECTION 5.01. SIGNS.
Tenant, at Tenant's sole cost and expense, shall have the right to
place, maintain or replace any professionally prepared signs on the interior of
the Premises without notice or approval of Landlord. Subject to approval by all
governmental authorities and further subject to Landlord's approval of design,
exact location, color scheme, style, content (other than any registered
trademark or trade name), materials, and lighting, Tenant, at Tenant's sole cost
and expense, shall have the right to place, maintain or replace signs upon the
exterior elevations of the Premises. "Signs", for the purpose of this Article V
shall not include banners, balloons or other similar advertising medium. Tenant
shall not install, erect or maintain any sign in violation of any Legal
Requirements. Tenant shall pay all costs of fabricating, constructing, operating
and maintaining such signs including, without limitation, all charges for
electricity. Tenant shall keep said signs well lighted and shall maintain said
sign in good condition and repair during the entire Term. Tenant shall remove
all of its signs upon the expiration or sooner termination of this Lease within
ten (10) days after such expiration or termination, and Tenant at its own
expense shall repair any damage caused by the removal thereof by Tenant.
ARTICLE VI
CONSTRUCTION
SECTION 6.01. AS-IS CONDITION.
(a) Tenant will take possession of the Premises in an "as-is",
"where-located" condition, on the Possession Date, as defined hereinbelow Tenant
acknowledges that neither Landlord, nor any agent, employee or servant of
Landlord, has made any representation or warranty, expressed or implied, with
respect to the Premises and Common Areas or the Center, or with respect to the
suitability of them to the conduct of Tenant's business, nor has Landlord agreed
to undertake any modifications, alterations, or improvements of the Premises or
Common Areas except as specifically provided in this Lease.
SECTION 6.02. PREPARATION OF PLANS. Within thirty (30) days after the
Execution Date, Tenant, at its expense, shall submit to Landlord, preliminary
plans and specifications prepared by Tenant's architect or engineer, with
respect to the remodeling of the Existing Building and addition to Tenant's
Building and any applicable common area improvements such as sidewalks and
landscaping ("Preliminary Plans"). Landlord shall approve or disapprove the
Preliminary Plans fifteen (15) within days, specifying with particularity the
exact reason for any such disapproval ("Landlord's Notice"). In the event of
disapproval Landlord and Tenant shall immediately start working together in good
faith to reach agreement and within twenty (20) days of Tenant's receipt of
Landlord's Notice Tenant shall, at its expense, prepare working drawings and
specifications ("Building Plans") and submit same for approval by Landlord which
approval shall not be unreasonably withheld. The Building Plans shall be
prepared substantially in accordance with the approved Preliminary Plans.
Landlord shall give Tenant written notice within fifteen (15) days after receipt
of the Building Plans, of its approval or disapproval thereof (stating with
reasonable particularly the exact reason for any such disapproval). Disapproval
shall be based upon any reasonable objections thereto arising from
non-compliance with the Preliminary Plans. In the event of disapproval, Tenant
shall revise the Building Plans and shall re-submit them to Landlord, with
Landlord's approval or disapproval to be subject to the manner and time set
forth above for the submission of the Preliminary Plans. Tenant shall perform
the work set forth in the final approved Building Plans ("Tenant's Work") within
the time period as set forth in Section 6.04 of this Lease. During the
construction Tenant may from time to time make minor variations to the approved
Building Plans provided same (i) do not materially reduce the structural
soundness of Tenant's Building, (ii) are in all respects in compliance with all
Legal Requirements, and (iii) otherwise conform to the terms and conditions set
forth in the approved Building Plans. Notwithstanding the above, any changes to
the approved Building Plans which will affect the structural integrity or alter
the exterior of Tenant's Building, shall require Landlord's prior written
consent thereto, which consent shall not be unreasonably withheld or delayed. In
the event (i) Tenant fails to submit the Preliminary Plans or Building Plans or
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revision thereof, at the times required herein (or as same may have been
extended by written agreement of Landlord and Tenant) or (ii) Landlord and
Tenant, acting in good faith, cannot agree on the Preliminary Plans or Building
Plans within the time periods provided (as same may have been extended by
written agreement of Landlord and Tenant) then either party shall have the right
to terminate this Lease, by written notice to the other party, which termination
shall be effective thirty (30) days after receipt of such written notice,
provided that within such thirty (30) day period, Landlord and/or Tenant shall
have the right to cure such failure in which event, the Lease termination shall
be null and void, and this Lease shall continue in full force and effect.
SECTION 6.03. PERMITS.
(a) Promptly after receipt of Landlord's approval of the Building
Plans, Tenant shall apply for and diligently pursue, at Tenant's expense, any
"Permits" (hereinafter defined) necessary to perform Tenant's Work.
(b) As used in this Lease, the term "Permits" shall mean any and all
permits, approvals, consents, certificates or licenses necessary to commence and
complete Tenant's Work, (or, as the case may be, any "Alterations", as defined
in Section 12.01 hereof), including, but not limited to, construction,
development and building permits. Landlord shall cooperate in Tenant's efforts
to obtain licenses and permits and shall sign such reasonable documents as shall
be reasonably required by or convenient for the applicable governmental
authority.
SECTION 6.04. PERFORMANCE OF TENANT'S WORK.
(a) Tenant, promptly after satisfaction or all Legal Requirements, the
obtaining of the Permits, and furnishing Landlord with evidence of the insurance
required by Article XIII, shall commence, and proceed with due diligence, to
perform Tenant's Work in accordance with the final approved Building Plans and
complete Tenant's Work and open for business to the public fixturized and
adequately staffed. Without limitation on the foregoing, in the event Tenant is
unable to open for business within one hundred twenty (120) days after receipt
of Permits (subject to force majeure), Tenant shall provide written notice to
Landlord on or before said date, explaining the reason for the delay in opening
for business, the actions which Tenant is proceeding with towards opening for
business and the date Tenant expects to open for business in the Premises.
(b) Tenant shall perform Tenant's Work in a good and workmanlike manner
under the supervision of a licensed architect or engineer and in all respects in
accordance with applicable Legal Requirements and the Permits.
(c) Representatives of Landlord and Tenant, which representatives shall
be designated in writing by each party to the other, shall establish and attend
on-site progress meetings with such periods of frequency during the period of
construction, as may be mutually agreed between Landlord and Tenant.
(d) Tenant shall perform Tenant's Work so as not to (i) unreasonably
interfere with any other construction being performed at the Center or, (ii)
unreasonably impair the use, occupancy or enjoyment at the Center by any
Occupant and/or its Permittees. Landlord shall perform Landlord's Work so as not
to (i) unreasonably interfere with Tenant's Work or, (ii) unreasonably impair
the use, occupancy or enjoyment of the Premises by Tenant and/or its Permittees.
(e) Tenant shall take all safety measures reasonably required to
protect Landlord and its Permittees and the Center from injury or damage caused
by or resulting from the performance of Tenant's Work, including, if requested
by Landlord, erecting, at its sole cost and expense, a temporary security fence
surrounding the Premises and the Tenant's staging area (if one is shown on
Exhibit B) during the period of Tenant's Work.
(f) Tenant shall defend, protect, indemnify and hold harmless Landlord
and the Occupants and Permittees of the Center from any and all Claims (as
defined in Section 14.05 of this Lease) arising from or in connection with the
death of or accident, injury, loss or damage
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whatsoever caused to any natural person or to the property of any Person
arising out of, or in connection with, or as a result of such Tenant's Work.
(g) Tenant shall repair any damage to the Parking Areas, Common Areas
and/or other portions of the Center as a result of Tenant's Work, unless
otherwise expressly agreed herein to be undertaken by Landlord.
SECTION 6.05. UTILITIES.
Tenant shall be responsible for providing and for paying for charges
for temporary utilities required by Tenant during the course of Tenant's Work.
Landlord shall cooperate with Tenant in arranging for such temporary utilities.
SECTION 6.06. NO LIENS. Tenant shall keep Premises and the Center free
from any and all liens arising out of any work performed, materials furnished,
or obligations incurred by or for Tenant and/or its sublessees. Tenant shall,
within thirty (30) days following the imposition of any such lien, cause the
same to be released of record by payment or posting of a bond or by causing a
reputable national title insurance company to "insure over" any and all such
liens. Tenant shall defend, protect, indemnify and hold Landlord harmless from
and against all mechanics', materialmen's, and laborers' liens and all Claims
arising from or in connection with Tenant's Work. Upon Tenant's failure to take
action as above provided, the Landlord shall have the right (at its sole
option), after the giving of notice and the expiration of the applicable grace
period (or a reasonably shorter period in the case of an imminent threat of
foreclosure), at the cost and expense of Tenant (plus interest at the Interest
Rate defined in Section 26.08), to take any action above provided. Tenant shall
reimburse Landlord for such costs, expenses and accrued interest within fifteen
(15) days after demand therefor.
ARTICLE VII
USE
SECTION 7.01. USE.
(a) Permitted Use. Tenant shall occupy and use the Premises only for
the purpose of conducting therein the following business: may only be used and
occupied as a full table service, sit-down, brew pub style restaurant featuring
pizza and items consistent with the menu attached hereto as Exhibit E, serving
liquor, beer and wine for on-premises consumption, and for no other use
whatsoever (the "Permitted Use"); and Tenant may sell clothing and novelty-type
merchandise related to its business, provided that such sales are incidental to
the operation of the restaurant and limited to 500 square feet of Floor Area.
Tenant may prepare package or sell any food item or beer at the Demised Premises
for on-premises, or if desired by Tenant, off-premises, consumption.
(b) Tenant shall do business on the Demised Premises under the trade
name: "BJ's Pizza, Grill & Brewery" and under no other trade name without
Landlord's consent which shall not be unreasonably withheld.
SECTION 7.02. OPERATION OF BUSINESS.
(a) Tenant agrees to be open for business and to operate in the
Premises during the entire Term within 120 days following receipt of the Permits
and subject to Articles XIV, XV, Force Majuere and closure for remodeling and
alterations, and to actively and diligently conduct its business at all times in
a first class and reputable manner. Tenant shall not use or allow the Premises
to be used for any improper, immoral or objectionable purposes or do any act
tending to injure the reputation of the Center. No auction, liquidation, going
out of business, fire or bankruptcy sale may be conducted or advertised by sign
or otherwise in the Premises. Tenant
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shall not use the Common Areas adjacent to the Premises for sales or
advertising purposes. All major receiving and delivery of goods and
merchandise for the Premises, and all removal of merchandise, supplies,
equipment, trash, garbage and debris and all storage of trash, garbage and
debris from the Premises shall be made only from the loading dock area
serving the Premises. Tenant shall not use or permit the use of any portion
of the Premises as sleeping quarters, or lodging rooms.
(b) In connection with the sale of alcoholic beverages by Tenant, (i)
Tenant shall at all times maintain, at its sole cost, all licenses, permits,
governmental authorizations and approvals in connection therewith, Landlord
making no representation or warranty hereunder with respect to Tenant's ability
to obtain the same; and (ii) Tenant's liability insurance under Section 14.04
shall specifically include dram shop and liquor liability insurance covering
consumption of alcoholic beverages by customers of Tenant.
SECTION 7.03 COMMUNICATION EQUIPMENT. Tenant has the right to install a
satellite dish and/or other electronic transmitter on the roof of Tenant's
Building provided same is in compliance with all Legal Requirements and screened
in a manner so as not to be visible from the Common Areas. The cost of
installation and maintenance thereof, and the cost of any repairs to the roof
which are necessitated by the installation and/or repair of the satellite dish
transmitter shall be borne solely by Tenant. Tenant agrees to coordinate such
installments or repair with Landlord's roofing contractor. Upon the termination
of this Lease, Tenant has the right to remove any satellite dish or electronic
transmitter (and shall remove same at Landlord's request) but Tenant shall
repair any damage to the roof occasioned by such removal.
ARTICLE VIII
ASSIGNMENT/SUBLETTING
SECTION 8.01. PROHIBITED TRANSFERS.
(a) Except as specifically provided below and subject to Landlord's
right to terminate also set forth below, notwithstanding any provision contained
herein to the contrary or reference herein to concessionaires, licensees,
subtenants, assignees or otherwise, except as provided herein, Tenant agrees not
to assign, encumber or in any manner transfer this Lease or any estate or
interest therein, and not to lease or sublet the Premises or any part or parts
thereof or any right or privilege appurtenant thereto, and not to allow anyone
to conduct business upon or from the Premises (whether as concessionaire,
franchisee, assignees, licensee, permittee, subtenant, department operator,
manager or otherwise), or to come in, by, through or under it, in all cases
either by voluntary or involuntary act of Tenant or by operation of law
(including by merger or reorganization) or otherwise. Any such prohibited act by
Tenant (or any attempt at same), either voluntarily or involuntarily or by
operation of law or otherwise, shall at Landlord's option (as set forth in this
section)terminate this Lease, and any such purported act shall be null and void.
The voluntary or other surrender of this Lease by Tenant, or mutual cancellation
thereof, shall not work a merger and shall, at the option of Landlord, terminate
all or any existing franchises, concessions, licenses, permits, subleases,
subtenancies, departmental operating arrangements, management agreements or the
like, or may, at the option of Landlord, operate as an assignment to Landlord of
the same. Nothing contained elsewhere in this Lease shall authorize Tenant to
enter into any franchise, concession, license, permit, subtenancy, departmental
operating arrangement, management agreement or the like except pursuant to the
provisions of this Section. Landlord has entered into this Lease with Tenant in
order to obtain for the benefit of the Center the unique attraction of Tenant's
trade name and the unique merchandising mix and product line associated with
Tenant's business and the foregoing prohibition on assignment or subletting or
the like is expressly agreed to by Tenant as an inducement to Landlord to rent
the Premises to Tenant.
(b) Subject to all of Landlord's rights set forth in this Section 8.01
including Landlord's unrestricted right to terminate if it rejects a proposed
assignee, transferee or sublessee for any reason, Tenant shall have the right,
with the prior written consent of Landlord to assign or transfer this Lease or
sublet the Premises provided all the following conditions are met: (i) Tenant
shall not be in default under this Lease; (ii) any assignment or subletting
shall remain fully subject to all of
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the terms, covenants and conditions of this Lease, including without
limitation this Section 8.01 and the use of the Premises described pursuant
to Section 7.01; (iii) any assignee or subtenant shall have a net worth
reasonably acceptable to Landlord; (iv) any assignment or subletting shall be
for not less than the entire Premises; and (v) any assignee or subtenant
shall have experience in operating and managing a business of the type it
intends to operate and shall have a good reputation in the retail commercial
community for the same. Tenant shall provide Landlord with a copy of any
document providing for such assignment or sublease, together with all related
documents pertaining to the terms of such assignment or subletting.
Regardless of whether such assignment or sublease provides for the assignee
or subtenant to make rental and other payments directly to Landlord, and
regardless of Landlord's consent, no assignment or subletting shall release
Tenant from any of Tenant's obligations under this Lease, nor alter the
primary liability of Tenant to make rental payments and to perform all other
obligations of Tenant under this Lease. The acceptance of rent by Landlord
from any person other than Tenant shall not be deemed to be a waiver by
Landlord of any provisions of this Section 8.01. In the event of any default
by any assignee, transferee or subtenant, direct or indirect, of Tenant,
Landlord shall have the right to proceed directly against Tenant without the
necessity of joining or exhausting its remedies against such assignee,
transferee or subtenant. Landlord, at its option, may likewise proceed
directly against such assignee, transferee or subtenant, either in its own
name or (as regards recovery of the Premises) in the name and right of
Tenant, without the necessity of joining or exhausting its remedies against
Tenant.
(c) In the event Landlord shall consent to an assignment or subletting,
the Fixed Rent specified in Section 4.02 of this Lease shall be increased on the
effective date of such assignment or subletting to a rate consistent with the
then current rental rate for a new lease for similar premises. . All Fixed Rent,
and Percentage Rent and other payments paid or payable to be made by any
assignee, transferee or subtenant shall be made to Landlord for the sole benefit
of Landlord. In the event of any attempted assignment or subletting of the
Premises undertaken without the prior written consent of Landlord, Landlord
shall, in addition to other remedies provided at law and in this Lease, be
entitled to the entire amount of rent and/or other payments or consideration
payable by such assignee, transferee or subtenant, including all amounts in
excess of the Rent provided for in this Lease. Tenant shall pay all of
Landlord's reasonable costs, expenses and reasonable fees of its attorney(s) in
connection with any assignment or transfer of this Lease or subletting of the
Premises.
(d) Notwithstanding any other provision of this Section 8.01, Landlord
may reasonablyreject Tenant's proposed assignee, subtenant or transferee, by
written notice to Tenant. Landlord shall be obligated to set forth any reasons
for its rejection. As the result of Landlord's rejection, Landlord shall have
the right to terminate this Lease by sending written notice of such termination
to Tenant, which notice must be sent within ninety (90) days following the date
of Landlord's notice of rejection of the proposed assignee, subtenant or
transferee. Tenant shall have the right within ten (10) days of receipt of any
termination notice from Landlord sent in accordance with the provisions of this
subsection (d) to void Landlord's notice of termination by sending written
notice to Landlord that it withdraws its request for transfer, assignment or
subletting and stating that Tenant intends to continue to operate the Premises
in accordance with the terms and conditions of this Lease.. Tenant acknowledges
and agrees that each of the rights of Landlord set forth herein in the event of
a proposed transfer, assignment or subletting is a reasonable restriction for
purposes of applicable laws. Landlord and Tenant agree that Tenant shall have
the burden of proving that Landlord's consent to a proposed transfer, assignment
or subletting was withheld unreasonably. Landlord shall have no liability to
Tenant or to any proposed transferee, assignee or sublessee in damages if it is
adjudicated that Landlord's consent shall have been unreasonably withheld and/or
that such unreasonable withholding of consent shall have constituted a breach of
this Lease or other duty to Tenant, the proposed transferee, assignee or
sublessee or any other Person. In such event, Tenant's sole remedy shall be to
have the proposed transfer, assignment or subletting declared valid, as if
Landlord's consent had been duly and timely given.
SECTION 8.02. AFFILIATE TRANSFERS. Notwithstanding anything to the
contrary contained herein, Tenant may assign this Lease or sublet the Premises
without Landlord's consent and without otherwise affecting this Lease to an
affiliate of Tenant or to a successor to Tenant. As used herein, the term
"affiliate" shall include any individual, corporation, partnership, association
or other business entity that directly, or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with
Tenant. As used herein a "successor" shall include any successor by merger,
consolidation, corporate reorganization or operation of law, or the
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purchaser of all or substantially all of the corporate stock or assets of
Tenant. The sale or transfer of Tenant's stock or assets shall not be deemed
an assignment hereunder.
Notwithstanding anything to the contrary contained herein, Tenant may
also assign this Lease or sublet the Premises without Landlord's consent to
Franchisor, as defined hereinbelow.
ARTICLE IX
REPAIRS AND MAINTENANCE OF TENANT'S BUILDING
Subject to all other terms and provisions of this Lease, Tenant shall,
at its sole cost and expense, keep and maintain the Premises and Tenant's
Building, including without limitation, the roof, foundation, HVAC systems,
utility lines and systems within and exclusively serving the Premises, and
building equipment, together with any and all alterations, additions and
improvements therein or thereto permissible under this Lease, in first-class
order, appearance, condition and repair consistent with the prevailing practices
in first-class regional shopping centers in the proximate geographical area as
the Center, except for ordinary wear and tear, and shall, at Tenant's expense,
make all repairs and replacements as may be necessary in order to keep and
maintain said improvements in such order, condition and repair, including
structural and non-structural and interior and exterior repairs and
replacements, foreseen and unforeseen, ordinary and extraordinary, and
regardless of the time remaining to the expiration of the term hereby granted.
All such repairs and replacements shall be of good quality sufficient for the
proper maintenance and operation of Tenant's Building and shall be constructed
and installed in compliance with all Legal Requirements and Insurance
Requirements. Tenant shall provide to Landlord, within fifteen (15) days of
written demand, proof reasonably satisfactory to Landlord that the cleaning and
maintenance of grease traps, pans and hood ventilators located in or serving
Tenant's Building is being responsibly performed. Tenant agrees to reimburse
Landlord the cost of maintenance and repair to utility lines and systems which
exclusively serve the Premises, located outside the Premises' leaseline to the
extent such maintenance and repair are required as a result of Tenant's
negligence or willful misconduct.
ARTICLE X
COMPLIANCE WITH LAWS
Tenant shall at all times during the Lease Term and at its own cost and
expense, promptly observe, conform to and comply with all Legal Requirements and
Insurance Requirements applicable to its occupancy of the Premises, and any
Tenant's Work and any work done or any change, alteration or improvement
thereto, ordinary or extraordinary, foreseen and unforeseen, whether or not such
compliance shall require structural repairs, additions, changes or alterations.
Tenant shall also procure each and every permit, license, certificate or other
authorization required in connection with the lawful occupancy of the Premises.
Tenant further agrees (i) to comply with all applicable covenants and
restrictions affecting the Premises, (ii) not to interfere materially and
adversely with the use and enjoyment of any other parties to the non-exclusive
easements set forth in Section 2.02, provided that the use and enjoyment of such
other parties does not interfere materially and adversely with the use and
enjoyment by Tenant of such easements, Landlord hereby agrees to use best
efforts to ensure that such other parties do not materially and adveresly
interfere with the use and enjoyment by Tenant of such easements; and (iii) to
use the easements set forth in Section 2.02 in a manner consistent with the
character of the Center from time to time.
ARTICLE XI
UTILITIES AND TRASH REMOVAL
Tenant shall be solely responsible for, and shall pay the cost of,
utilities services consumed on the Premises by Tenant to the furnishers of each
utility service when and as due. In
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addition, Tenant shall be solely responsible for and shall promptly pay for
all services required for trash removal from the Premises.
ARTICLE XII
ALTERATIONS
SECTION 12.01. ALTERATIONS BY TENANT. After Tenant's Work has been
completed and the Premises are open for business, Tenant shall have the right
without Landlord's approval to make such changes, alterations, or additions
(hereinafter "Alterations") to the interior of Premises of a non-structural
nature. Other Alterations, including those of a structural nature or which
impact the exterior of the Premises shall require Landlord's prior written
approval. Tenant shall submit complete working drawings and specifications to
Landlord at least ten (10) business days prior to the commencement of work for
any Alterations which require Landlord's approval and Landlord will promptly
review such drawings consistent with the time and manner set forth in 6.02 for
the Building Plans.
SECTION 12.02. ADDITIONAL REQUIREMENTS. All Alterations shall be made
promptly (subject to Force Majeure), in a good and workmanlike manner, in
compliance with all Legal Requirements and Insurance Requirements and at
Tenant's cost and expense. No Alterations shall be undertaken until Tenant shall
have procured and paid for, so far as the same may be required, all necessary
Permits. Upon completion of any Alteration, Tenant shall obtain and deliver to
Landlord a copy of an amended Certificate of Occupancy, if required by Legal
Requirements, and a copy of the new Building Plans therefor.
ARTICLE XIII
INSURANCE
SECTION 13.01. FIRE AND CASUALTY COVERAGE
Tenant, at its sole cost and expense, shall procure from responsible
insurance companies, and keep in full force and effect during the Lease Term,
insurance at full replacement value insuring Tenant's Building and the
inventory, merchandise, trade fixtures, furnishings, equipment and all other
items of personal property of Tenant located on or in the Premises (collectively
"Tenant's Personal Property"), including steam boiler insurance, if applicable
insured with responsible insurance companies (who are qualified to write
insurance and conduct business in the state in which the Premises are located
and has (have) at a minimum a rating of A in Bests Rating Guide, hereinafter
referred to as "Responsible Insurance Companies") against fire, extended
coverage, vandalism, malicious mischief, water damage which does not exclude
backup from sewers or drains and/or sprinkler leakage, and such other additional
perils as now are or hereafter may be included in a standard extended coverage
endorsement insuring in no event for less than one hundred percent (100%) of the
full replacement value of such improvements exclusive of the cost of
foundations, excavations, and footings below the lowest basement floor. Tenant
shall also maintain insurance boiler and machinery insurance located on the
Premises in an amount not less than Two Million Dollars ($2,000,000.00) per
accident written on a replacement basis and affording blanket coverage on all
boilers, fired and unfired pressure vessels, gas and steam turbines, electrical
generators, internal combustion engines, miscellaneous electrical apparatus,
refrigerating systems, and motors and compressors.
SECTION 13.02. WAIVER OF RIGHT OF RECOVERY. Except as otherwise
provided in this Lease, neither Landlord nor Tenant shall be liable to the other
or to any insurance company (by way of subrogation or otherwise) insuring the
other party for any loss or damage to any building, structure or other tangible
property, or any resulting loss of income, or losses under worker's compensation
laws and benefits, even though such loss or damage might have been occasioned by
the negligence of such party, its agents or employees. The provisions of
15
this Section 13.02 shall not limit the indemnification for liability to third
parties pursuant to Section 13.05.
SECTION 13.03. PAYMENT AND DISPOSITION OF INSURANCE PROCEEDS. The
insurance proceeds paid to Tenant by reason of damage to or destruction of
Tenant's Personal Property shall be used by Tenant to restore damage or
destruction to Tenant's Personal Property.
SECTION 13.04. LIABILITY COVERAGE.
(a) Tenant shall carry or cause to be carried, at all times during the
Term hereof, with Responsible Insurance Companies, (1) comprehensive general
liability insurance or commercial general liability insurance, including motor
vehicle liability insurance, covering claims for injuries, death and property
damage to persons and property arising out of accidents or incidents occurring
in, upon or about the Premises, any other areas within the Shopping Center that
Tenant has rights to use thereof, (2) workers' compensation coverage as required
by law and (3) Employer's Liability Insurance in the amount of Two Million
Dollars ($2,000,000.00). All insurance policies evidencing the foregoing
insurance (and any other policies required to be carried by Tenant hereunder)
shall include Landlord and any other parties designated from time to time by
Landlord as additional named insureds with the exception of (2) hereinabove.
(b) Landlord shall carry or cause to be carried, at all times after the
execution hereof, with Responsible Insurance Companies, comprehensive general
liability insurance or commercial general liability insurance, including motor
vehicle liability insurance, covering any and all claims for injuries, death and
property damage to persons and property arising out of accidents or incidents
occurring in, upon or about the Common Area and all structures and other
improvements (other than the Premises) situated in the Shopping Center.
(c) Such insurance, as carried by each of Landlord and Tenant, shall
have a combined single limit of Three Million Dollars ($3,000,000.00) for
personal injury and property damage liability. Landlord and Tenant each further
agree to maintain Contractual Liability Insurance insuring their respective
obligations set forth in Section 13.05, with the same limits as provided in this
Section 13.04.
(d) In the event Tenant retains any security guard to service the
Premises, Tenant shall cause Landlord to receive a customary waiver of
subrogation under the worker's compensation insurance policy covering such
security guard. No such security guard shall be permitted to carry a firearm
upon the Premises or Center, and Landlord shall have the right to impose
additional reasonable insurance requirements upon Tenant and/or such security
guard, which shall be complied with by Tenant and Tenant shall provide Landlord
with evidence of such compliance prior to the posting of such security guard at
the Premises.
SECTION 13.05. INDEMNIFICATION. Tenant shall indemnify, protect, defend
and hold harmless Landlord, its partners, shareholders, representatives,
management company, agents and employees, from and against any and all claims,
costs, actions, expenses (including reasonable attorneys' fees), losses, damage,
injuries and liabilities of whatever kind or nature, known or unknown, foreseen
or unforeseen, contingent or otherwise (collectively called "Claims") arising
from or out of or in any way relating to (a) the death of or any accident,
occurrence, injury, loss or damage whatsoever caused to any natural person or to
the property of any Person as shall occur in any part of the Premises (except to
the extent such Claims arise from or in connection with any negligence or
willful misconduct of Landlord or its employees, servants or agents), (b) the
negligent acts or omissions or willful misconduct of Tenant or any of its
Permittees, including any product liability claim or any labor dispute involving
Tenant or any of its Permittees, and (c) Tenant's failure to comply with any
provision of this Lease.
Landlord shall indemnify, protect, defend and hold Tenant harmless from
all Claims arising from or in connection with the death of or any accident,
occurrence, injury, loss or damage whatsoever caused to any natural person or to
the property of any Person as shall occur
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in any part of the Common Area (except to the extent such Claims arise from
or in connection with Tenant's Fault).
In the case of any third-party suit, proceeding, claim or assertion
being made against a party hereto, in respect of which indemnity may be sought
against the other party (the "indemnifying party"), the party against whom such
suit, proceeding, claim or assertion is made (the "indemnified party") shall
cooperate with the indemnifying party in determining the validity of such claim
or assertion. The indemnifying party shall have the right to control the conduct
of the defense of such matter with counsel reasonably satisfactory to the
indemnified party (it being understood that counsel approved by the indemnifying
party's insurer shall be deemed to be reasonably satisfactory counsel). The
indemnified party shall have the right, at its expense, to participate in such
defense with counsel of its choice; provided, however, that the indemnifying
party shall bear the reasonable fees and expenses of such counsel if
representation by such counsel is appropriate in view of possible or actual
conflicts of interest of counsel to the indemnifying party. The indemnified
party shall not settle or compromise any third-party suit, proceeding, claim or
assertion for which such party will seek indemnification hereunder from the
other party hereto without the prior consent of the indemnifying party (which
consent may be granted or withheld in the sole and absolute discretion of the
indemnifying party). The indemnifying party may not settle or compromise any
third party suit, proceeding, claim or assertion if such settlement involves
anything other than the payment of money, without the prior written consent of
the indemnified party (which consent may be granted or withheld in the sole and
absolute discretion of the indemnified party).
SECTION 13.06. INSURANCE REQUIREMENTS. Each party shall deliver to the
other party from time to time upon request certificates of the insurance
required to be maintained under this Article. Each policy required to be carried
by Tenant pursuant to this Article XIII shall contain the following clauses and
provisions: (a) a provision that such policy and the coverage evidenced thereby
shall be primary and non-contributing with respect to any policies carried by
Landlord and that any coverage carried by Landlord be excess insurance; (b) a
provision including Landlord and any other party designated by Landlord from
time to time as additional insureds, as their interests may appear; at the
present time, such additional insureds are set forth on Exhibit D, attached
hereto and made a part hereof; (c) a waiver by the insurer of any right to
subrogation against Landlord and such other additional insured entities which
arises or might arise by reason of any payment under such policy or by reason of
any act or omission of Landlord, its agents, employees or representatives; (d) a
severability of interest clause or endorsement; (e) a provision that the insurer
will not cancel or change the coverage provided by such policy without giving
Landlord at least ten (10) days' prior written notice; and (f) such policy shall
be an "occurrence form" policy.
SECTION 13.07. BUILDERS RISK INSURANCE. During any period of
construction, reconstruction, alteration, or remodeling of Premises, Tenant
shall at its sole expense, maintain or cause to be maintained, in full force and
effect, until completion of any construction, a policy of builders risk
insurance (on a non-reporting and completed value basis) covering respectively
Tenant's Work (or Alterations) as the same is constructed, such policy naming
Landlord as an additional insured.
SECTION 13.08. SELF-INSURANCE; "BLANKET POLICIES". At any time, but
only for so long as the party obligated to carry insurance hereunder maintains a
tangible net worth of at least One Hundred Million Dollars ($100,000,000.00) (as
evidenced by that party's most recent financial statement prepared in accordance
with generally accepted accounting principles consistently applied), such party
may self-insure for any risk required to be insured hereunder, provided (a) that
such party's aggregate annual self-insurance retention for such party's
obligations hereunder shall not exceed five percent (5%) of its tangible net
worth, and (b) such party carries umbrella coverage in excess of its permitted
self-insurance retention, up to the limits required to be insured against by
such party under this Lease. Each of Tenant and Landlord may satisfy their
obligations under Sections 13.01, 13.04, 13.05, 13.06 and 13.07, in whole or in
part by means of a so-called blanket policy. Each blanket policy of a party
permitted hereunder shall specifically allocate to the liabilities required to
be insured by that party under this Article an amount not less than the amounts
of insurance required to be carried by that party by this Article.
SECTION 13.09. INTENTIONALLY DELETED
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SECTION 13.10. PRODUCT LIABILITY COVERAGE. Tenant shall provide product
liability coverage for not less than Three Million Dollars ($3,000,000.00)
combined single limit, bodily injury and property damage.
SECTION 13.11. INCREASE IN INSURANCE RATES. Tenant will not do or
suffer to be done, or keep or suffer to be kept, anything in, upon or about the
Premises which will violate Landlord's policies of hazard or liability insurance
or which will prevent Landlord from procuring such policies in companies
acceptable to Landlord. If anything done, omitted to be done or suffered by
Tenant to be kept in, upon or about the Premises shall cause the rate of fire or
other insurance on the Premises or on other property of Landlord or of others
within the Center to be increased beyond the minimum rate from time to time
applicable to the Premises or to any property for the use or uses made thereof,
Tenant will pay, as Additional Rent, the amount of any such increase upon
Landlord's demand.
SECTION 13.12. POLICY LIMITS. Prior to the Option Period, Landlord and
Tenant shall review the policy limits for the coverage provided hereinabove and,
at that time, shall cause such limits to be adjusted in view of reasonable
exposure anticipated during the next five (5) years of the Lease Term; provided,
however, that in no event shall such limits be adjusted lower than the limits
stated above.
ARTICLE XIV
DAMAGE AND DESTRUCTION
SECTION 14.01. DAMAGE AND DESTRUCTION.
(a) In the event during the Lease Term the Tenant's Building shall be
partially damaged (as distinguished from "substantially damaged", as that term
is hereinafter defined) by fire or other casualty insured under the insurance
required to be carried by Tenant pursuant to this Lease, Tenant shall proceed
with reasonable dispatch to repair such damage and restore the Tenant's Building
to substantially its condition at the time immediately prior to damage and
Tenant shall similarly restore and/or replace Tenant's Personal Property.
Notwithstanding the foregoing, if such partial damage to the Tenant's Building
is caused by a casualty not insured or required to be insured by Tenant pursuant
to the provisions of this Lease, Tenant may elect to repair or rebuild the
Tenant's Building or terminate this Lease upon giving notice of such election to
Landlord within ninety (90) days of the date of such damage or destruction. If
said right of termination is exercised (and Landlord does not negate such
termination as hereunder provided), this Lease to the extent provided
hereinabove shall terminate effective (i) as of the date of such casualty, if
Tenant has been unable to conduct business in the Tenant's Building as a result
of such partial casualty or (ii) if Tenant has been able to conduct business,
then not later than thirty (30) days after such notice. If Tenant elects not to
so terminate this Lease, Tenant shall proceed as required in the first sentence
hereinabove. If Tenant elects to terminate this Lease as provided, Landlord may
nullify Tenant's termination by written notice to Tenant, within sixty (60) days
of receipt of Tenant's notice to terminate, in which event Landlord shall become
obligated to proceed and perform in the manner required of Tenant in the first
sentence hereinabove at Landlord's cost and expense, provided, if Landlord does
not so proceed as required to repair and restore Tenant's Building, as provided
above Tenant may again elect to terminate this lease as provided above without
Landlord having the right to nullify such termination.
(b) In the event during the Lease Term Tenant's Building shall be
substantially damaged or destroyed by fire or other casualty, insured under
the insurance carried by Landlord pursuant to Section 14.01 of this Lease,
Tenant may elect to repair or rebuild the Tenant's Building or terminate this
Lease upon giving notice of such election to Landlord within sixty (60) days
of the date of such damage or destruction. If Tenant elects not to so
terminate this Lease, this Lease shall, except as hereinafter provided,
remain if full force and effect, and Tenant shall, proceeding with reasonable
dispatch, repair such damage and restore the Tenant's Building to
substantially their condition at the time immediately preceding the
occurrence of such damage or
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destruction. Notwithstanding the foregoing, if such substantial damage to the
Tenant's Building is caused by a casualty not insured or required to be
insured by Tenant pursuant to the provisions of this Lease, Tenant may elect
to repair or rebuild the Tenant's Building or terminate this Lease upon
giving notice of such election to Landlord within sixty (60) days of the date
of such damage or destruction. If said right of termination is exercised (and
Landlord does not negate such termination as hereinafter provided), this
Lease to the extent provided hereinabove shall terminate effective (i) as to
the date of such casualty, if Tenant has been unable to conduct business in
the Tenant's Building as a result of such substantial casualty, or (ii) if
Tenant has been able to conduct business then not later than thirty (30) days
after such written notice. If Tenant elects not to so terminate this Lease,
Tenant shall proceed with reasonable dispatch to repair or rebuild the
Tenant's Building. Landlord may nullify Tenant's termination by written
notice to Tenant, within sixty (60) days of receipt of Tenant's written
notice to terminate, in which event Landlord shall become obligated to
proceed and perform in the manner required of Tenant in the prior sentence
hereinabove at Landlord's cost and expense, provided Tenant may again have
termination rights if Landlord does not so perform as provided in (a) above.
(c) If the Tenant's Building shall be substantially damaged or
destroyed by fire or other casualty, within the last three (3) years of the
Lease Term, either party shall have the right to terminate this Lease, provided
that written notice thereof is given to the other party not later than ninety
(90) days after the occurrence of such damage or destruction. If said right of
termination is exercised, this Lease, to the extent provided hereinabove, shall
cease and come to an end as of the date of such damage or destruction.
(d) To the extent the Tenant's Building is rendered untenantable as a
result of damage or destruction provided in subsections (a) and (b) hereinabove
and this Lease is not terminated, there shall be an abatement or reduction in
the Fixed Rent, due under this Lease, in proportion to the Floor Area of the
Tenant's Building rendered untenantable, such abatement shall continue for the
period commencing on the date of such destruction or damage and shall end with
the earlier of (i) the completion by either party of such work of repair and/or
restoration as either partyis obligated to do and the expiration of a period of
ninety (90) days after completion of such work to enable Tenant to re-fixture
the Tenant's Building and reopen for business; or (ii) the date Tenant reopens
for business in the Tenant's Building, or any portion thereof, as the case may
be. In the event of the termination of this Lease pursuant to this ARTICLE XIV,
the Lease shall cease and come to an end as of the date of such damage or
destruction with respect to the terminated portion of the Tenant's Building, as
aforesaid. Any rent or other charges paid in advance by Tenant shall be promptly
refunded by Landlord.
(e) The terms "substantially damaged" and "substantial damage" as used
in this ARTICLE XIV shall have reference to damage of such a character that the
cost of restoration would exceed twenty-five percent (25%) of the cost of
replacement of the Tenant's Building.
(f) If more than -five percent (5%) of the Parking Area located within
the Protected Area shall be damaged or destroyed by fire or other casualty at
any time ,if Landlord elects not to repair or replace such Parking Area Tenant
may terminate this Lease by giving written notice to Landlord of Tenant'
selection so to terminate, such notice to be given within ninety (90) days after
the occurrence of such damage or destruction.
(g) If Tenant is not required to repair or restore Tenant's Building
as provided hereinabove, then Tenant shall, promptly raze Tenant's Building and
clear the area of all debris and convert the area to Common Area as it was prior
to the construction of Tenant's Building. In all events, Tenant shall, following
such damage or destruction, promptly restore the Premises to a safe and secure
condition.
ARTICLE XV
EMINENT DOMAIN
SECTION 15.01. CONDEMNATION.
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(a) The term "Condemnation" means the taking or appropriation of any
portion of the Center, other than temporary possession of six (6) months or
less, pursuant to an exercise of the power of eminent domain or by inverse
condemnation or any conveyance in lieu of condemnation under threat thereof to
satisfy a grantee having the power of condemnation, or the requisitioning by
military or other public authority for any purpose arising out of a temporary
emergency or other temporary circumstances.
(b) During the Lease Term, if, as a result of a Condemnation, any
portion or interest in the Premises, or twenty percent (20%) or more of the
parking spaces located within the "Protected Area" (as defined in Section
25.1(c)), within thirty (30) days following the date of such taking, Tenant may
terminate this Lease upon written notice to Landlord and Tenant's obligation to
pay rent and perform all obligations set forth in this Lease shall terminate on
the date of taking, but Tenant's interest in the leasehold estate shall continue
until the taking is completed by deed, contract or order of final condemnation
and final award. Notwithstanding the foregoing, Tenant's election to terminate
shall be null and void if Landlord shall elect by notice given to Tenant within
thirty (30) days after receipt of Tenant's notice, to perform the obligations
set forth in subparagraph (c) below.
If the event of a Condemnation, excluding the Premises or the Protected
Area, which Condemnation causes a material change in the Premises are operations
directly attributable to such Condemnation, Tenant may terminate this Lease upon
written notice to Landlord, such right of termination to be exercised by written
notice to Landlord and be effective not earlier than 120 days subsequent
thereto. In the event Landlord disagrees with Tenant regarding such termination,
resolution of such dispute shall be determined by binding arbitration in
accordance with Exhibit C.
(c) In the event Tenant does not terminate this Lease, subject to Force
Majeure, Landlord shall promptly and diligently restore, to the extent of
available condemnation proceeds the parking spaces located within the Protected
Area, to as near their condition as existed prior to such taking as is
reasonably possible, and, during the course of such restoration, Tenant's
obligation for Fixed Rent shall thereafter be abated in the event of a
Condemnation of any portion of the Premises, in the amount of that fraction of
Fixed Rent the numerator of which is the Floor Area taken, and the denominator
of which is the Floor Area of the Premises prior to the Condemnation.
(d) In the event Tenant does not terminate this Lease, Tenant shall
promptly repair, restore and rebuild Tenant's Building to a condition, as nearly
as practicable, to that which existed prior to the Condemnation, so as to effect
thereby an architectural and operating unit similar to that which existed before
the taking.
(e) In the event of a Condemnation outside of the Premises, to the
extent Tenant's business is materially interrupted as a result of such
Condemnation, Fixed Rent will be abated as is fair and equitable under the
circumstances.
(f) If as a result of the Condemnation, the whole or any part of
Tenant's Building shall be affected by such Condemnation, then Fixed Rent and
any Additional Rent based on Floor Area shall be reduced proportionately in an
amount which reflects the nature and extent of the injury to business conducted
in Tenant's Building at the time of such Condemnation. Such reduction shall be
calculated from the date of such Condemnation and shall continue until the
restoration of Tenant's Building has been restored to an architectural and
operating unit similar to that which existed before the Condemnation. In the
event the Floor Area of Tenant's Building after such restoration has been
reduced as a result of such Condemnation then Fixed Rent shall be
proportionately reduced.
(g) With respect to an award for damages as a result of Condemnation to
any portion of the Center, including the Premises, such award shall be paid to
Landlord, except Tenant may prosecute, if permitted by law, a claim independent
of Landlord's for Tenant trade fixtures, furniture, equipment, merchandise and
other personal property, the unamortized value of improvements, including the
Tenant's Building, paid for solely by Tenant, damages for interruption or
dislocation of business in the Premises, and moving and remodeling expenses,
provided such claim shall have no adverse impact on any award to Landlord.
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ARTICLE XVI
BANKRUPTCY AND INSOLVENCY
SECTION 16.01. TENANT'S INTEREST NOT TRANSFERABLE.
(a) Neither Tenant's interest in this Lease, nor any estate hereby
created in Tenant nor any interest herein or therein, shall pass to any trustee
or receiver or assignee for the benefit of creditors or otherwise by operation
of law except as may specifically be provided pursuant to the Federal Bankruptcy
Code.
(b) In the event the interest or estate created in Tenant hereby shall
be taken in execution or by other process of law, or if Tenant executors,
administrators, or assigns, if any, shall be adjudicated insolvent or bankrupt
pursuant to the provisions of any state act or the Federal Bankruptcy Code or if
Tenant is adjudicated insolvent by a court of competent jurisdiction other than
the United States Bankruptcy Court, or if a receiver or trustee of the property
of Tenant shall be appointed by reason of the insolvency or inability of Tenant
to pay its debts as the same become due or if any assignment shall be made of
the property of Tenant for the benefit of creditors, then and in such event,
this Lease and all rights of Tenant hereunder shall automatically cease and
terminate with the same force and effect as though the date of such event were
the date originally set forth herein and fixed for the expiration of the Term,
and Tenant shall vacate and surrender the Premises but shall remain liable as
herein provided. Notwithstanding the foregoing, if Tenant shall continue to pay
Fixed Rent and Additional Rent provided for in this Lease in a timely manner and
shall cure such event within sixty (60) days after its occurrence, Landlord
shall not terminate this Lease.
(1) Upon the filing of a petition by or against Tenant under
the Federal Bankruptcy Code, Tenant, as debtor and debtor in possession, and any
trustee who may be appointed agree as follows: (i) to perform each and every
obligation of Tenant under this Lease including, but not limited to, the manner
of operations as provided in Article VII of this Lease until such time as this
Lease is either rejected or assumed by order of the United States Bankruptcy
Court; (ii) to pay monthly in advance on the first day of each month as
reasonable compensation for use or occupancy of Premises an amount equal to all
Fixed Rent, Additional Rent and due in accordance with the terms of this Lease.
(2) No uncured default of this Lease by Tenant, either prior
to or subsequent to the filing of such a petition, shall be deemed to have been
waived unless expressly done so in writing by Landlord.
(3) It is understood and agreed that this is a Lease of real
property in a shopping center as such a lease is described in Section 365(b)(3)
of the Federal Bankruptcy Code.
(4) Included within and in addition to any other conditions or
obligations imposed upon Tenant or its successor in the event of assumption
and/or assignment are the following: (1) the cure of any monetary defaults and
the reimbursement of pecuniary loss including the payment of all attorneys' fees
incurred by Landlord in connection with such proceedings as described in this
Article XVI, within not more than thirty (30) days of assumption and/or
assignment; and (2) the deposit of an additional sum equal to three (3) monthly
installments of Fixed Rent to be held as security pursuant to the terms of this
Lease; and (3) the use of the Premises to continue pursuant to Section 7.01 of
this Lease, and the quality, quantity and/or lines of merchandise of any goods
or services required to be offered for sale shall remain unchanged; and (4) the
reorganized debtor or assignee of such debtor in possession or of Tenant's
trustee demonstrates in writing that it has sufficient background including, but
not limited to, substantial retailing experience in shopping centers of
comparable size, and financial ability to operate a retail establishment out of
the Premises in the manner contemplated in this Lease, and the ability to meet
all other reasonable criteria of Landlord as did Tenant upon execution of this
Lease; and (5) the prior written consent of any mortgagee to which this Lease
has been assigned as collateral security; and (6) the Premises, at all times,
shall remain a single store and no
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physical changes of any kind may be made to Premises unless in compliance
with the applicable provisions of this Lease.
ARTICLE XVII
DEFAULT
SECTION 17.01. RIGHTS UPON DEFAULT.
(a) Notwithstanding any provision herein to the contrary and
irrespective of whether all or any rights conferred upon Landlord by this
Article XVII are expressly or by implication conferred upon Landlord elsewhere
in this Lease, in the event of (i) any failure of Tenant to pay any Fixed Rent
or Percentage Rent or any other charges or sums whatsoever due hereunder
(including without limitation, amounts due as reimbursement to Landlord for
costs incurred by Landlord in performing obligations of Tenant hereunder upon
Tenant's failure so to perform) for more than ten (10) days after written notice
from Landlord to Tenant that such Fixed Rent or any other charges or sums
whatsoever due hereunder were not received on the date required for payment
pursuant to this Lease, or (ii) any default or failure by Tenant to perform any
other of the terms, conditions, or covenants of this Lease to be observed or
performed by Tenant for more than twenty (20) days after written notice from
Landlord to Tenant of such default unless such default cannot be cured within
said twenty (20) days in which event Tenant shall have commenced to cure said
default within twenty (20) days and shall proceed to cure the same with all
reasonable dispatch and diligently pursue same to completion, or (iii) Tenant
fails continuously to operate in the manner and during the hours established by
Landlord pursuant to Section 7.02 hereof or for the use specified in the Section
7.01, writ of execution or similar writ or order, then Landlord, in addition to
or in lieu of other rights or remedies it may have under this Lease or by law,
shall have the right to (a) immediately terminate this Lease and Tenant's right
to possession of the Premises by giving Tenant written notice that this Lease is
terminated, in which event, upon such termination, Landlord shall have the right
to recover from Tenant the sum of (1) the worth at the time of award of the
unpaid rental which had been earned at the time of termination; (2) the worth at
the time of award of the amount by which the unpaid rental which would have been
earned after termination until the time of award exceeds the amount of such
rental loss that Tenant affirmatively proves could have been reasonably avoided;
(3) the worth at the time of award of the amount by which the unpaid rental for
the balance of the Term after the time of award exceeds the amount of such
rental loss that Tenant affirmatively proves could be reasonably avoided; (4)
any other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant's failure to perform Tenant's obligations under
this Lease or which in the ordinary course of things would be likely to result
therefrom; and (5) all such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time under applicable law; or (b)
have this Lease continue in effect for so long as Landlord does not terminate
this Lease and Tenant's right to possession of the Premises, in which event
Landlord shall have the right to enforce all of Landlord's rights and remedies
under this Lease including the right to recover the Fixed Rent, Percentage Rent
and other charges payable by Tenant under this Lease as they become due under
this Lease, and Tenant shall have the right to sublet the Premises or (at
Landlord's option) assign Tenant's interest in this Lease for a use permitted
under this Lease to a party determined by Landlord to be of good moral character
and sound financial responsibility; or (c) without terminating this Lease,
Landlord may pay or discharge any breach or violation hereof which amount so
expended shall be added to the next monthly incremental payment of Fixed Rent
due and treated in the same manner as rental hereunder; or (d) without
terminating this Lease, make such alterations and repairs as may be necessary in
order to relet the Premises, and relet the Premises or any part thereof for such
term or terms (which may be for a term extending beyond the Term of this Lease)
at such rental or rentals and upon such other terms and conditions as Landlord
in its sole discretion may deem advisable.
(b) Upon such reletting all rental and other sums received by Landlord
from such reletting shall be applied, first, to the payment of any indebtedness
other than rental due hereunder from Tenant to Landlord; second, to the payment
of any costs and expenses of such reletting, including reasonable brokerage fees
and attorney fees and of costs of such alterations and repairs; third, to the
payment of Fixed Rent due and unpaid hereunder; and the residue, if
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any, shall be held by Landlord and applied in payment of future Fixed Rent
payable by Tenant hereunder, as the same may become due and payable
hereunder. If such Fixed Rent and other sums received from such reletting
during any month are less than that to be paid during that month by Tenant
hereunder, Tenant shall pay such deficiency to Landlord; if such rentals and
sums shall be more, Tenant shall have no right to the excess. Such deficiency
shall be calculated and paid monthly. No re-entry or taking possession of the
Premises by Landlord shall be construed as an election on its part to
terminate this Lease unless a written notice of such intention is given to
Tenant or unless the termination thereof is decreed by a court of competent
jurisdiction. Notwithstanding any such reletting without termination,
Landlord may at any time thereafter elect to terminate this Lease for such
previous breach. Should Landlord at any time terminate this Lease for any
breach, in addition to any other remedies it may have, it may recover from
Tenant all damages it may incur by reason of such breach, including the cost
of recovering the Premises, all of which amount shall be immediately due and
payable from Tenant to Landlord. Landlord shall use its best efforts to
mitigate its damages hereunder; however, the failure or refusal of Landlord
to relet the Premises shall not affect Tenant's liability. The terms "entry"
and "re-entry" are not limited to their technical meanings. If Tenant shall
default hereunder prior to the date fixed as the Opening of any renewal or
extension of this Lease, Landlord may cancel and terminate such renewal or
extension provision or agreement by written notice. In the event of re-entry
by Landlord, Landlord may remove all persons and property from the Premises
and such property may be stored in a public warehouse or elsewhere at the
cost of, and for the account of Tenant, without notice or resort to legal
process and without Landlord being deemed guilty of trespass, or becoming
liable for any loss or damage which may be occasioned thereby. In the event
Tenant shall not remove its property from the Premises within ten (10) days
after Tenant has vacated the Premises, then such property shall be deemed
abandoned by Tenant and Landlord may dispose of the same without liability to
Tenant.
(c) At any time that Tenant has either failed to pay Fixed Rent, or
other charges within ten (10) days after the same shall be due or shall have
delivered checks to Landlord for payments pursuant to this Lease which shall
have on at least three (3) occasions during the Term of this Lease (whether
consecutive or not or whether involving the same check or different checks) been
returned by Landlord's bank for any reason, Landlord shall not be obligated to
accept any payment from Tenant unless such payment is made by cashier's check or
in bank certified funds.
(d) For purposes of Section 17.01(a), "worth at the time of award"
shall be computed by allowing interest at the "Interest Rate", as defined in
Section 26.08); the rental reserved in this Lease shall be deemed to be a
monthly rental arrived at (i) by adding to the monthly installment of Fixed Rent
payable under this Lease, plus (ii) one twelfth (1/12th) of the annual average
of all Percentage and Additional Rent payable by Tenant hereunder (such as, by
way of example, Tenant's share of Real Estate Taxes).
ARTICLE XVIII
UNAVOIDABLE DELAYS, FORCE MAJEURE
In the event either party hereto shall be delayed in the performance of
any obligation of this Lease, other than economic obligations, by reasons of
strikes, lockouts, labor troubles, inability to procure materials or reasons of
a similar nature not the fault of the party delayed in performing work or doing
acts required under the terms of the Lease (as the case may be, "Force
Majeure"), 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. The provisions of this Article
XVIII shall not operate to excuse Tenant from prompt payment of Fixed Rent or as
to Landlord or Tenant from any other payments required by the terms of this
Lease. It shall be a condition of Landlord and Tenant's right to claim an
extension of time as a result hereof that the delayed party notify the other
party in writing within ten (10) calendar days after the first occurrence of any
such event, and the cause, specifying the nature thereof and the period of time
contemplated or necessary for performance.
ARTICLE XIX
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NOTICES
Any notice, demand, request, consent, approval or other
communication ("Notice") which either party hereto is required or desires to
give or make or communicate to the other hereunder shall be in writing and shall
be given or made or communicated either by personal delivery, reputable
overnight courier service or by United States registered or certified mail,
return receipt requested, postage prepaid, and addressed in the case of Landlord
to:
c/o Westfield Corporation, Inc.
00000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx00000-0000
Attention: President
with a copy thereof to:
Westfield Corporation, Inc.
00000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Office of Legal Counsel
and addressed in the case of Tenant to:
Chicago Pizza & Brewery, Inc.
0000 Xxxxxx Xxxxxx Xxxxx 000
Xxxx Xxxxx, Xxxxxxxxxx 00000
Attn: President
with a copy thereof to: Chicago Pizza & Brewery, Inc.
00000 Xxxxxxxxxx Xxxx, Xxxxx X
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
Subject to the right of either party to designate different addresses by giving
notice as above provided. Any Notice hereunder shall be deemed to have been
given, made or communicated, as the case may be, (i) on the date received or the
date of the first attempted delivery thereof if the same was deposited in the
United States mail as registered or certified matter, with postage fully
prepaid, (ii) on the next business day, if delivered by reputable overnight
courier service (private or public), or (iii) on the date of delivery, if by
personal delivery. Notwithstanding anything herein to the contrary, neither
party may designate an address for delivery of Notices which does not indicate a
street address, which shall include a building name and/or number, street
designation, city, state and zip code.
ARTICLE XX
ACCESS
After the Opening Date, Landlord and its designees shall have the right
to enter upon the Premises at reasonable hours accompanied by an employee of
Tenant for any reasonable purpose upon reasonable advance notice to Tenant,
including the inspection of the Premises, for the exhibition of prospective
purchasers and/or mortgagees, or during the period commencing three hundred
sixty five (365) days prior to the end of the Lease Term, for the purpose of
exhibiting same to prospective tenants. Landlord and its designees shall use
their best efforts to not interrupt Tenants business or interfere with Tenant's
customers.
ARTICLE XXI
END OF TERM
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SECTION 21.01. REMOVAL BY TENANT. Upon the expiration or other
termination of the Lease Term, Tenant shall peaceably and quietly quit and
surrender the Premises, and together with all Alterations which are then part of
the realty, broom clean, in good order and condition, reasonable wear and tear
and the provisions of Articles XIV and XV excepted. Notwithstanding the
foregoing to the contrary, Tenant's Personal Property, regardless of the manner
or mode of attachment, including, but not limited to, display cases, counters,
shelves, racks, and general restaurant fixtures, shall be and remain the
property of Tenant and may be removed by Tenant at any time during the Lease
Term or within the period of ten (10) days after the expiration or sooner
termination of this Lease. When Tenant vacates the Premises, Tenant shall not
remove from the Premises the then existing HVAC equipment, plumbing fixtures, ,
hydraulic lifts or any other items (other than trade fixtures) deemed to be real
estate by reason of affixation to improvements, except as Landlord and Tenant
may mutually agree. Tenant shall promptly repair all damage to Premises caused
by removal of any such Personal Property by Tenant or its subtenants or
licensees. Any Personal Property remaining in the Premises after the expiration
of such ten (10) day period shall be deemed abandoned and shall become the
property of Landlord without payment therefor, unless Landlord shall have
required removal by Tenant by notice given to Tenant not less than thirty (30)
days prior to the expiration date.
ARTICLE XXII
HOLDING OVER AND SUCCESSORS
SECTION 22.01. HOLDING OVER. If bona fide negotiations have commenced
between Landlord and Tenant for renewal of this Lease prior to the expiration of
the Lease Term, any holding over after the expiration of the Lease Term with the
consent of Landlord shall be construed to be a tenancy from month to month on
the same terms and conditions as herein specified so far as applicable. Any
other holding over after expiration of the Lease Term without the consent of the
Landlord, and after written demand from Landlord for surrender of the Premises,
shall be construed to be a tenancy from month to month at one-twelfth (1/12th)
of an amount equal to one hundred fifty percent (150%) of the Fixed Rent and
Additional Rent required to be paid by Tenant for the last full Lease Year of
the Lease Term, and shall otherwise be on the same terms and conditions as
herein specified so far as applicable. Any holding over without Landlord's
consent shall entitle Landlord to reenter the Premises as provided in Section
17.01 of this Lease
SECTION 22.02. SUCCESSORS. All rights and liabilities herein given to,
or imposed upon the parties to this Lease shall inure to and be imposed upon the
respective heirs, executors, administrators, successors and assigns of the said
parties; and if there shall be more than one Tenant, they shall all be bound
jointly and severally by the terms, covenants and agreements herein. No rights,
however, shall inure to the benefit of any assignee of Tenant unless the
assignment to such assignee has been approved in advance by Landlord in writing
or permitted by Section 8.01.
ARTICLE XXIII
BROKERS
Landlord and Tenant each represent that it dealt with no broker or
brokers or other person in connection with the negotiation, execution and
delivery of this Lease, except for Xxx Spilkey, whom Tenant has agreed to
compensate per a separate agreement. Landlord and Tenant shall each defend,
indemnify and hold the other harmless from and against any claims or demands for
any other brokerage commissions, finder's fees and/or other compensation arising
out of the acts or omissions of the indemnifying party.
ARTICLE XXIV
ESTOPPEL STATEMENT, ATTORNMENT AND SUBORDINATION
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SECTION 24.01. ESTOPPEL STATEMENT. Within ten (10) days after request
therefor by either party. The requested party shall execute, in recordable form,
and deliver to the requesting party a statement, in writing, certifying (a) that
this Lease is in full force and effect, (b) the Commencement Date, the Rental
Commencement Date and the expiration date of this Lease, (c) that Rental and all
other charges hereunder are paid currently without any offset or defense
thereto, (d) the amount of Rental and all other charges hereunder, if any, paid
in advance, (e) whether this Lease has been modified and, if so, identifying the
modifications, (f) that there are no uncured defaults by either party or stating
in reasonable detail those claimed by Tenant (provided that, in fact, such
details are accurate and ascertainable), and (g) such other matters as may be
reasonably requested.. The requested parties failure or refusal to execute
timely such statement shall constitute an acknowledgment that the statements
contained in such statement are true and correct without exception, and may be
relied upon.
SECTION 24.02. ATTORNMENT.
In the event any proceedings are brought for the foreclosure of, or in
the event of exercise of the power of sale under any mortgage and/or deed of
trust made by Landlord covering the Premises, or in the event Landlord sells,
conveys or otherwise transfers its interest in the Center or any portion thereof
containing the Premises, this Lease shall remain in full force and effect and
Tenant hereby automatically attorns to the new owner. Tenant covenants and
agrees, at such new owners request, to execute an instrument evidencing such
attornment reasonably satisfactory to the new owner, recognizing the new owner
as the landlord under this Lease. Tenant acknowledges that such new owner shall
not be bound by (i) any prepayment of more than one (1) month's Rent (except
rental deposit but only to the extent received by said successor) or (ii) any
material amendment of the Lease made after the later of the Opening Date, or the
date that such successor's lien or interest first arose, unless said successor
shall have consented to such amendment or (iii) any claims, offsets or defenses
of Tenant arising prior to such attornment, except for those specifically
provided in the Lease. Payment by or performance of this Lease by any person,
firm or corporation claiming an interest in this Lease or the Premises by,
through or under Tenant without Landlord's consent in writing shall not
constitute an attornment or create any interest in this Lease or the Premises.
At Tenant's request, the new owner shall acknowledge in writing that, subject to
the provisions of this Section, Tenant's interest in the Premises and rights
under this Lease shall not be disturbed so long as Tenant is not in default
under the terms of this Lease beyond the time permitted to cure such default.
SECTION 24.03. SUBORDINATION. Tenant further agrees this Lease shall be
subject and subordinate to the lien and terms of any mortgage, deed of trust or
any ground lease that is now or may hereafter be placed upon the Premises or the
Center and to any and all advances to be made thereunder, and to the interest
thereon, and all renewals, modifications, replacement and extensions thereof.
The foregoing shall be self-operative and no further instruments shall be
required to effect such subordination of this Lease. Tenant also agrees that any
mortgagee, beneficiary or ground lessor may elect to have this Lease constitute
a prior lien to its mortgage, deed of trust or ground lease, and in the event of
such election and upon notification by such mortgagee, beneficiary or ground
lessor to Tenant to that effect, this Lease shall be deemed a prior lien to such
mortgage, deed of trust or ground lease, whether this Lease is dated prior to or
subsequent to the date of said mortgage, deed of trust or ground lease. Tenant
agrees that upon the demand of Landlord, or any mortgagee, beneficiary or ground
lessor, Tenant shall, within ten (10) days of the receipt of said demand,
execute whatever instruments may be required to carry out the intent of this
Section 24.03 in the form requested by Landlord or such mortgagee, beneficiary
or ground lessor, including, without limitation, an appropriate recordable
subordination agreement. In the event Tenant fails to execute such instruments
within as set forth in this Section 24.03 ten (10) days after demand, Tenant
does hereby irrevocably appoint Landlord as its attorney-in-fact and in its
place and stead so to do.
SECTION 24.04. NOTICE TO MORTGAGEE, BENEFICIARY OR GROUND LESSOR.
If Tenant is given notice of the name and address of a mortgagee,
beneficiary or ground lessor, then Tenant shall give written notice of any
default by Landlord to such mortgagee, beneficiary or ground lessor specifying
the default in reasonable detail. Tenant shall afford any
26
such mortgagee, beneficiary or ground lessor the right to cure such default
and if such mortgagee, beneficiary or ground lessor does perform on behalf of
Landlord, such default shall be deemed cured.
ARTICLE XXV
COMMON AREA AND PARKING AREA
OPERATIONS AND MAINTENANCE
SECTION 25.01. RIGHTS OF LANDLORD.
(a) Landlord hereby: (i) reserves the right at any time, and from time
to time, to make alterations or additions to, and to build additional stories on
any building except the Premises within the Center, (ii) reserves the right at
any time, and from time to time, to construct other buildings and improvements
in the Center to enlarge or reduce the area of the Center and to make
alterations therein or additions thereto, and to modify the existing layouts
thereof, and to build adjoining thereto and to construct decks or elevated
parking facilities, and to sell or lease any part of the land comprising the
Center, for the construction thereon of a building or buildings to be occupied
by one or more department stores which may or may not be part of the Center.
Landlord reserves the right at any time to relocate, expand, reduce or eliminate
Parking Areas and other Common Areas shown on Exhibit B. Landlord may at any
time close any Common Area and Parking Area to make repairs or changes, to
prevent the acquisition of public rights in such area or to discourage
non-customer parking, to use areas for attendant or valet parking, and may do
such other acts in and to the Common Areas as in its judgment may be desirable
to improve the convenience thereof. Landlord shall use commercially reasonable
efforts to cause any construction work undertaken in the exercise of Landlord's
rights under this Section to be performed in such manner as to minimize to the
extent practicable the interruption of Tenant's business; and not to materially
interfere with Tenant's use of Premises nor diminish access to Premises unless
no reasonable alternative exists. If Tenant's use of the Premises is reduced
during or as a result of any work performed pursuant to this section, Fixed Rent
and Tenant's proportionate payment of Common Area Maintenance Costs and Expenses
charges will be abated in a manner fair and equitable under the circumstances.
(b) Landlord reserves the right, from time to time, to utilize portions
of the Common Areas, for carnival-type shows, rides and entertainment, outdoor
shows, displays, automobile and other product shows, the leasing of kiosks, or
such other uses which in Landlord's judgment tend to attract the public.
Further, Landlord reserves the right to utilize the lighting standards and other
areas in the Parking Area for advertising purposes.
Notwithstanding anything to the contrary herein, any act by Landlord
pursuant to this section shall be; (a) done in good taste recognized in a first
class center, (b) done using best efforts not to interrupt Tenants business or
interfere with Tenant's customers and (c) not within the Protected Area.
(c) Notwithstanding anything to the contrary contained herein, Landlord
represents, warrants and covenants, that Landlord shall not without Tenant's
written consent, which consent shall not be unreasonably withheld or delayed,
erect any buildings, structures or building improvements or materially alter the
layout and configuration of the parking areas, driveways, lighting, curb cuts
and other Common Areas within the "Protected Area" as shown on Exhibit B, It
would be reasonable for Tenant to withhold its consent to any of the foregoing,
if Tenant reasonably believes same would have a material, adverse affect on
conducting its business in the Premises.
SECTION 25.02. OPERATION OF COMMON AREAS. Landlord shall, at its sole
cost and expense, operate, maintain, repair and replace the Common Areas in
accordance with the practices prevailing in regional shopping centers in the
proximate geographical area as the Center. In this connection, Landlord shall
clean and sweep the Common Areas, remove snow therefrom and treat ice thereon;
maintain, service and clear the storm drainage systems, except those that are
exclusive service the Premises; maintain and operate all utility services
(including
27
electricity and lighting) serving the Common Areas to the extent the same is
not an obligation of public utility companies.
[THIS SECTION INTENTIONALLY DELETED]
[THIS SECTION INTENTIONALLY DELETED]
28
ARTICLE XXVI
MISCELLANEOUS
SECTION 26.01. WAIVER; ELECTION OF REMEDIES. One or more waivers of any
covenant or condition by any party hereto shall not be construed as a waiver of
a subsequent breach of the same covenant or condition, and the consent or
approval by any party hereto to or of any act by the other party requiring the
other party's consent or approval shall not be deemed to render unnecessary such
consent or approval to or of any subsequent similar act by the other party. No
breach by any party hereto of a covenant or condition of this Lease shall be
deemed to have been waived by the other party unless such waiver is in writing
signed by the other party. The rights and remedies of the other party under this
Lease or under any specific Section, subsection or clause hereof shall be
cumulative and in addition to any and all other remedies which the other party
has or may have elsewhere under this Lease or at law or equity, whether or not
such Section, subsection or clause expressly so states.
SECTION 26.02. ENTIRE AGREEMENT. This Lease and the Exhibits attached
hereto and forming a part hereof, set forth all the covenants, promises,
agreements, conditions and understandings between Landlord and Tenant concerning
the subject matter hereof and there are no covenants, promises, agreements,
conditions or understandings heretofore made, either oral or written, between
the parties other than as herein set forth. No modification, amendment, change
or addition to this Lease shall be binding upon Landlord or Tenant unless
reduced to writing and signed by each party. Landlord has made no
representations or warranties regarding the profitability of the Premises or the
Center, and Tenant has not entered into this Lease in reliance on any such
representations, warranties or financial projections prepared or furnished to
Tenant by Landlord.
29
SECTION 26.03. INTERPRETATION; USE OF PRONOUNS; AUTHORITY. Nothing
contained herein shall be deemed or construed by the parties hereto, nor by any
third party, as creating the relationship of principal and agent or of
partnership or of joint ventures between the parties hereto, it being understood
and agreed that neither the method of computation of Fixed Rent nor any other
provision contained herein, nor any acts of the parties herein, shall be deemed
to create any relationship between the parties hereto other than the
relationship of Landlord and Tenant. Whenever herein the singular number is used
the same shall include the plural, and the masculine gender shall include the
feminine and neuter genders. If this Lease is signed on behalf of a corporation,
partnership or other entity, the signer is duly authorized to execute this Lease
on behalf of such corporation, partnership or entity.
SECTION 26.04. CAPTIONS AND SECTION NUMBERS. The captions, section
numbers, article numbers and index appearing in this Lease are inserted only as
a matter of convenience and in no way define, limit, construe or describe the
scope or intent of such sections or articles of this Lease nor in any way affect
this Lease.
SECTION 26.05. RECORDING. Neither Landlord nor Tenant shall record this
Lease; however, upon the request of either party hereto, the other party shall
join in the execution of a memorandum or so-called "short form" of lease for the
purposes of recordation. Said memorandum or short form of lease shall describe
the parties, the Premises, the Lease Term, any subordination, any special
provisions other than those pertaining to rent, and shall contain such
additional information as may be required for recordation in the jurisdiction in
which the Premises is located and shall incorporate this Lease by reference.
SECTION 26.06. FURNISHING OF FINANCIAL STATEMENTS. Tenant has provided
Landlord at or prior to the date of this Lease with statements reflecting its
financial condition as of a date within the last twelve (12) months as an
inducement to Landlord to enter into this Lease, and Tenant hereby represents
and warrants that its financial condition has not materially changed since the
date of those statements. Upon Landlord's written request, Tenant shall promptly
furnish Landlord, from time to time, but not more frequently than once in any
Lease Year with financial statements reflecting Tenant's financial condition as
of a date within twelve (12) months prior thereto. Landlord shall treat such
financial statements and information provided to it confidentially, and shall
not disclose them except to Landlord's lenders or otherwise as required by law.
SECTION 26.07. TRANSFER OF LANDLORD'S INTEREST. In the event of any
transfer or transfers of Landlord's interest in the Center including a so-called
sale-leaseback, the transferor shall be automatically relieved of any and all
obligations on the part of Landlord accruing from and after the date of such
transfer, provided that (a) the interest shall be turned over, subject to such
interest, to the then transferee; (b) notice of such sale, transfer or lease
shall be given to Tenant as required by law; and (c) such transferee shall
assume in writing the obligations of Landlord under this Lease. Upon the
termination of any such Lease in a sale-leaseback transaction prior to
termination of this Lease, the former lessee thereunder shall become and remain
liable as Landlord hereunder until a further transfer. In addition to the
provisions of this Section, the transferor shall be automatically relieved of
any and all obligations on the part of Landlord accruing from and after the date
of such transfer, only provided the then transferee assumes in writing all of
Landlord's obligations under the Lease.
SECTION 26.08. INTEREST ON PAST-DUE OBLIGATIONS. Any amount due from
either party to the other under this Lease which is not paid within ten (10)
days after written notice that such amount was not received when due (including,
without limitation, amounts due as reimbursement for costs incurred in
performing obligations of such party hereunder upon its failure to so perform)
shall bear interest at the prime rate of Bank of America N.A. ("Interest Rate")
from the date due until paid, unless otherwise specifically provided herein, but
the payment of such interest shall not excuse or cure any default by Tenant
under this Lease.
SECTION 26.09. LIABILITY OF LANDLORD. If Landlord shall fail to perform
any covenant, term or condition of this Lease upon Landlord's part to be
performed, and if as a consequence of such default Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only out of the
proceeds of sale received upon execution of such
30
judgment and levied thereon against the right, title and interest of Landlord
in the Center and out of rents or other income from such property receivable
by Landlord, any insurance proceeds receivable by Landlord, or out of the
consideration received by Landlord from the sale or other disposition of all
or any part of Landlord's right, title and interest in the Center.
SECTION 26.10. ACCORD AND SATISFACTION. Payment by any party or receipt
by the other party of a lesser amount than the rent or other charges herein
stipulated shall be deemed to be on account of the earliest rent or other
charges due from Tenant to Landlord. No endorsements or statement on any check
or letter accompanying any check or payment as rent or other charges shall be
deemed an accord and satisfaction, and any party may accept such check or
payment without prejudice to its right to recover the balance of such rent or
other charges or to pursue any other remedy provided in this Lease or by law.
SECTION 26.11. EXECUTION OF LEASE; NO OPTION. The submission of this
Lease to Tenant shall be for examination purposes only, and does not and shall
not constitute a reservation of an option for Tenant to lease, or otherwise
create any interest by Tenant in the Center or any other premises in the Center.
Execution of this Lease by Tenant and the return of same to Landlord shall not
be binding upon Landlord, notwithstanding any time interval, until Landlord has
executed and delivered this Lease to Tenant.
SECTION 26.12. GOVERNING LAW. This Lease shall be governed by and
construed in accordance with laws of the State of California. If any provision
of this Lease or the application thereof to any person or circumstances shall,
to any extent be invalid or unenforceable, such provision shall be adjusted
rather than voided, if possible, in order to achieve the intent of the parties,
to the extent possible; in any event, all other provisions of this Lease shall
be deemed valid and enforceable to the fullest extent.
SECTION 26.13. SPECIFIC PERFORMANCE . Either of the parties hereto
shall have the right to obtain specific performance of any and all covenants or
obligations of the other under this Lease, and nothing contained in this Lease
shall be construed as or shall have the effect of abridging such right.
SECTION 26.14. SURVIVAL OF TENANT'S OBLIGATIONS. All obligations under
this Lease which cannot be ascertained to have been fully performed prior to the
end of the Lease Term shall survive the expiration or termination of this Lease,
whichever occurs earlier.
SECTION 26.15. CERTAIN RULES OF CONSTRUCTION. Notwithstanding the fact
that certain references elsewhere in this Lease to acts required to be performed
by either party hereunder, or to breaches or defaults of this Lease by either
party, omit to state that such acts shall be performed at such party's sole cost
and expense, or omit to state that such breaches or defaults are material,
unless the context clearly implies to the contrary, each and every act to be
performed or obligation to be fulfilled at such party's sole cost and expense,
and all breaches or defaults by either party hereunder shall be deemed material.
Tenant shall be fully responsible and liable for the observance and compliance
by concessionaires, licensees, subtenants or assignees (the "Additional
Parties") of and with all the terms and conditions of this Lease, which terms
and conditions shall be applicable to the Additional Parties as fully as if they
were the Tenant hereunder and failure by an Additional Party fully to observe
and comply with the terms and conditions of this Lease shall constitute a
default hereunder by Tenant. Nothing contained in the preceding sentence shall
constitute a consent by Landlord to any concession, subletting or other
arrangement proscribed by Article VIII.
SECTION 26.16. HAZARDOUS MATERIALS. "Hazardous Materials" means any
biologically or chemically active or other hazardous substances or materials
in any manner regulated by Legal Requirement or Insurance Requirement,
including without limitation, those described in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C.
Section 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C.
Section 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601
et seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), the Federal
Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), and any
applicable state or local laws and the regulations adopted under these acts.
Tenant shall not (either with or without negligence)
31
cause or permit the escape, disposal or release of any Hazardous Materials in
any manner not sanctioned by law and the highest standards prevailing in the
shopping center industry of the storage and use of such materials, nor allow
to be brought into the Shopping Center any Hazardous Materials except to use
in the ordinary course of Tenant's business, and then only after written
notice is given to Landlord of the identity of such materials provided,
however, that such notice need not be given as to any Hazardous Materials
normally used in the restaurant industry by operators or agents such as
janitorial services, particularly restaurants similar to Tenants If any
lender or governmental agency shall ever require testing of any materials to
ascertain whether or not there has been any release of Hazardous Materials,
then the reasonable costs thereof shall be reimbursed by Tenant to Landlord
upon demand as Additional Rent if such requirement can be reasonably applied
to Tenant's Work or other work or alterations Tenant performed on the
Premises or the conduct of Tenant's business in the Premises. Tenant shall
execute affidavits, representations and the like from time to time at
Landlord's request concerning Tenant's best knowledge and belief regarding
the presence of Hazardous Materials contained on or within the Premises.
Tenant shall defend, indemnify, protect and hold harmless Landlord its
affiliates, parent corporation, subsidiaries, partners, management company,
successors and assigns, and the employees, agents, officers, directors of any
of them from and against any and all Claims (including, without limitation,
consultant, investigation and laboratory fees) directly or indirectly arising
out of, or in any way related to (i) any breach by Tenant of any of the
provisions of this Section; (ii) the presence, use, generation,
transportation, disposal, spillage, discharge, emission, leakage, release, or
threatened release of any Hazardous Materials which is at, in, on, under,
about, from or affecting the Premises or the Shopping Center, to the extent
proven to be caused by Tenant or any of its Permittees; (iii) any personal
injury (including wrongful death) or property damage (real or personal)
arising out of or related to any such Hazardous Materials; (iv) any lawsuit
brought or threatened, settlement reached, or governmental order or directive
relating to such Hazardous Materials; or (v) any violation of any
Environmental Law relating to such Hazardous Materials. To the best knowledge
and belief of Landlord there is no Hazardous Materials contained on or under
the Premises as of the date of execution of this Lease and, further, Landlord
indemnifies, protects and holds harmless Tenant its parent, affiliates,
subsidiaries, directors, officers, employees, agents, successors and assigns
from and against any and all claims, directly or indirectly, arising out of,
or related to contamination which occurred prior to, or subsequent to,
Tenant's occupancy of the Premises. This Section 26.16 shall survive the
expiration or earlier termination of the term of this Lease.
SECTION 26.17. CONFIDENTIALITY. Any and all information contained in
this Lease or provided to or by Tenant and/or Landlord by reason of the
covenants and conditions of this Lease, economic or otherwise, shall remain
confidential between Landlord and Tenant and shall not be divulged to third
parties; provided, however either party shall be permitted to divulge the
contents of this lease and of statements and reports derived and received in
connection with the provisions of Article VIII or the provision of Article IV in
connection with any contemplated sales, transfers, assignments, encumbrances or
financing arrangements of Landlord's interest in the Center. This section shall
not apply in connection with any administrative or judicial proceedings in which
either party may be required to divulge such information.
SECTION 26.18. ATTORNEY FEES. If at any time after the date that this
Lease has been executed by Landlord and Tenant, either Landlord or Tenant
institutes any action or proceeding against the other relating to the provisions
of this Lease or any default hereunder, the non-prevailing party in such action
or proceeding shall reimburse the prevailing party for the reasonable expenses
of attorney fees and all costs and disbursements incurred therein by the
prevailing party, including, without limitation, any such fees, costs or
disbursements incurred on any appeal from such action or proceeding. Subject to
the provisions of local law, the prevailing party shall recover all such fees,
costs or disbursements as costs taxable by the court or arbiter in the action or
proceeding itself without the necessity for a cross-action by the prevailing
party.
Notwithstanding anything to the contrary contained herein, if Landlord
is compelled to engage the services of attorneys (either outside counsel or
in-house counsel) to enforce the provisions of this Lease, to the extent that
Landlord incurs any cost or expense (including such reasonable attorney fees) in
connection with such enforcement, including instituting, prosecuting or
defending its rights in any action, proceeding or dispute by reason of any
default by Tenant, or as otherwise set forth in this Section 26.18 or elsewhere
in this Lease, the sum or sums so paid or
32
billed to Landlord, together with all interest, costs and disbursements,
shall be deemed Additional Rent and shall be due from Tenant immediately upon
receipt of an invoice therefor following the occurrence of such expenses
SECTION 26.19. REAL ESTATE INVESTMENT TRUST. If the ownership of the
Center is in a Real Estate Investment Trust, then Landlord and Tenant agree that
Fixed Rent and all Additional Rent paid to Landlord under this Lease
(collectively referred to in this Section as "Rent") shall qualify as "rents
from real property" within the meaning of Section 856(d) of the Internal Revenue
Code of 1986, as amended (the "Code") and the U.S. Department of Treasury
Regulations promulgated thereunder (the "Regulations"). Should the Code or the
Regulations, or interpretations thereof by the Internal Revenue Service
contained in Revenue Rulings, be changed so that any Rent no longer qualifies as
"rent from real property" for the purposes of Section 856(d) of the Code and the
Regulations promulgated thereunder, other than by reason of the application of
Section 856(d)(2)(B) or 856(d)(5) of the Code or the Regulations relating
thereto, such Rent shall be adjusted so that it will so qualify; provided,
however, that any adjustments required pursuant to this Section shall be made so
as to produce the equivalent (in economic terms) Rent as payable prior to such
adjustment.
SECTION 26.20. TENANT'S PERSONAL PROPERTY. Tenant shall have the right
to finance and grant a security interest in Tenant's Personal Property. Landlord
acknowledges that, notwithstanding any provision to the contrary contained in
law or otherwise, it does not have any lien on Tenant's Personal Property.
Landlord shall execute and deliver any and all documentation reasonably required
by any lender thereof, including, without limitation, a waiver of any lien
Landlord may have thereon, within fifteen (15) days after request therefor by
Tenant or Tenant's lender.
[SIGNATURES APPEAR ON NEXT PAGE]
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IN WITNESS WHEREOF, Landlord and Tenant, personally or by their duly
authorized agents have executed this Lease as of the day and year first above
written.
Chicago Pizza & Brewery, Inc., a California EASTLAND SHOPPING CENTER LLC, a
corporation Delaware limited liability
company
By:_____________________________ By: Eastland Manager LLC, a
Its:____________________________ Delaware limited liability
company, its managing member
By: Westfield America Investor
L.P., a Delaware limited
partnership, its sole member
By: Westfield America, Inc., a
Missouri corporation, its general
partner
TENANT
By:_______________________
Its:_______________________
LANDLORD
EXHIBIT A
LEGAL DESCRIPTION OF SHOPPING CENTER
EXHIBIT B
SITE PLAN
EXHIBIT C
ARBITRATION
A. Any dispute that this Lease specifically makes subject to
arbitration shall be resolved by arbitration under this Exhibit; however,
nothing herein requires arbitration of any dispute arising under this Lease
which is not specifically herein made subject to arbitration.
B. If Landlord and Tenant cannot reach an agreement, after the exercise
of their reasonable efforts, within thirty (30) days after notice of an
arbitrable dispute is given by either party to the other party, then either
Landlord or Tenant may at any time within ten (10) days after the end of said
thirty (30) day period refer the dispute to arbitration by giving written notice
of demand therefor to the other (the "Demand for Arbitration"), and the Landlord
and Tenant agree to cooperate in obtaining such arbitration. The party demanding
arbitration shall in its Demand for Arbitration designate one person, as
hereinafter provided, to represent it as an arbitrator. Within ten (10) days
after it has received such Demand for Arbitration, the other party shall, in its
"Response", designate one person, as hereinafter provided, to represent it as an
arbitrator. The arbitrators so appoint by landlord and Tenant shall within five
(5) business days after both have been designated, designate a third person as
arbitrator. If the first two are unable to select third arbitrator, the third
arbitrator shall be selected by the Chief Judge of the U.S. District Court of
the District where the Center is located, upon application of either Landlord or
Tenant. The three (3) arbitrators so selected shall constitute the "Board of
Arbitration." Any person designated as an arbitrator shall be neutral and
impartial and shall be knowledgeable and experienced in the matters sought to be
arbitrated, but shall not then be, and shall not have been at any time in the
employment of either Landlord or Tenant directly, indirectly or as an agent,
except in connection with the arbitration then proceeding or any prior
arbitration.
C. The Demand for Arbitration, and the Response thereto, shall set
forth with particularity the facts, circumstances, lease provisions and law each
party in good xxxxx xxxxx relevant to its position on the disputed issue(s), as
well as such party's statement and binding offer as to the reasonable, fair and
proper settlement and resolution of such issue(s). The Board of Arbitration
shall meet or otherwise confer as deemed necessary by the arbitrators to resolve
the dispute and a decision of a majority of the arbitrators will be binding upon
Landlord and Tenant. In making its final determination, the Board of Arbitration
shall select the proposed settlement an resolution which most closely, in the
opinion of the majority of the arbitrators, approximates the issue(s), and shall
adopt such proffered resolution in its entirety without deviation therefrom or
modification thereto. The decision of the Board of Arbitration shall be in
writing, and shall be made as promptly as possibly after the designation of the
last additional arbitrator, but in no event later than thirty (30) days from the
date of the designation of the last additional arbitrator. A copy of the
decision of the arbitrators shall be signed by at least a majority of the
arbitrators and given to landlord and Tenant.
D. All arbitration proceedings pursuant to this Section 27.21 shall be
conducted in accordance with the rules of the American Arbitration Association
relation to commercial arbitrations except to the extent such rules conflict
with the provisions hereof. The arbitrators shall have no authority to pass upon
the validity, enforceability or fairness of any provision of this Lease to any
person or to any situation. No person other than Landlord and Tenant shall be a
party to any arbitration proceeding without the consent of both Landlord and
Tenant, which consents Landlord and Tenant each may grant or deny in its sole
and absolute discretion. The arbitrators shall have no power to sub poena
witnesses or to order discovery; and Landlord and Tenant shall be entitled to
claim all privileges available to them in a judicial civil proceeding.
E. For each arbitrable dispute the cost and expense of the arbitrators
as well as all reasonable attorney's fees and costs of arbitration to the
prevailing party, shall be paid by the non-prevailing party immediately upon
rendition of the Board of Arbitration's written decision.
EXHIBIT D
ADDITIONAL INSURED ENTITIES
Additional insured entities pursuant to the requirements outlined in
the Lease to which this Exhibit is attached are as follows:
1. Eastland Shopping Center LLC.,
a Delaware limited liability company
2. Westfield America, Inc.,
a Missouri corporation
3. Westfield Corporation, Inc.,
a Delaware corporation
4. Westfield Services, Inc.,
a Delaware corporation
5. Westfield Management Company,
a California corporation
The insurance certificate should be sent to:
General Manager
Eastland Center
000 Xxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
EXHIBIT E
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