Exhibit 10.128
Lease Agreement - Woodfield Mall
LEASE
TOYS INTERNATIONAL, INC.
TENANT
"TOYS INTERNATIONAL"
TRADE NAME
PLAYCO TOYS & ENTERTAINMENT CORP
GUARANTOR
WOODFIELD MALL
A Regional Retail Development
VILLAGE OF SCHAUMBURG
COUNTY OF XXXX
STATE OF ILLINOIS
PROVISIONS ADDED TO THIS LEASE APPEAR ON THE DATA SHEET AND ON THE ATTACHED
RIDER AND, EXCEPT IN INSTANCES OF ADDITIONAL SENTENCES OR PARAGRAPHS BEING ADDED
AT THE END OF A SECTION OR PARAGRAPH. ARE INDICATED IN THE TEXT BY AN
UNDERSCORING OF THE LINE NUMBER IN THE RIGHTHAND MARGIN OF THE LINE BEING
CHANGED ADDITIONAL LANGUAGE IS INSERTED EITHER IN PLACE OF DELETED LANGUAGE OR
AFTER AN UNDERSCORED WORD, EXCEPT AS OTHERWISE NOTED ABOVE
TABLE OF CONTENTS
PAGE
DATA SHEET Dl
EXECUTION/ACKNOWLEDGMENT El
ADDENDUM Al
ARTICLE X. XXXXX AND TERM
SECTION 1.01. LEASED PREMISES Sl
SECTION 1.02. COMMENCEMENT AND ENDING DAY OF TERM Sl
SECTION 1.03. OPENING . S2
ARTICLE II. RENT
SECTION 2.01. MINIMUM RENT S2
SECTION 2.02. PERCENTAGE RENT S2
SECTION 2.03. GROSS SALES S2
SECTION 2.04. RENT ADJUSTMENT S3
SECTION 2.05. TENANT'S TAX OBLIGATION S3
SECTION 2.06. PAYMENTS S4
ARTICLE III. RECORDS AND BOOKS OF ACCOUNT
SECTION 3.01. TENANT'S RECORDS S5
SECTION 3.02. REPORTS BY TENANT S5
ARTICLE IV. AUDIT
SECTION 4.01. RIGHT TO EXAMINE BOOKS S5
SECTION 4.02. AUDIT S5
ARTICLE V. CONSTRUCTION OF LEASED PREMISES
SECTION 5.01. CONSTRUCTION OF LEASED PREMISES S6
SECTION 5.02. AVAILABILITY AND POSSESSION OF PREMISES FOR TENANT'S WORK . S7
SECTION 5.03. LANDLORD'S AND TENANT'S OPTIONAL RIGHT OF CANCELLATION S7
SECTION 5.04. ULTIMATE COMMENCEMENT DATE S7
ARTICLE VI. ALTERATIONS, CHANGES AND ADDITIONS
SECTION 6.01. INSTALLATION BY TENANT S8
SECTION 6.02. REMOVAL BY TENANT S8
SECTION 6.03. CHANGES AND ADDITIONS S8
ARTICLE VII. CONDUCT OF BUSINESS BY TENANT
SECTION 7.01. USE OF PREMISES S8
SECTION 7.02. OPERATION OF BUSINESS S8
SECTION 7.03. RADIUS Sl0
SECTION 7.04. STORAGE, OFFICE SPACE Sl0
SECTION 7.05. CARE OF PREMISES S10
ARTICLE VIII. COMMON AREAS
SECTION 8.01. OPERATION AND MAINTENANCE OF COMMON AREAS S10
SECTION 8.02. USE OF COMMON AREAS S10
SECTION 8.03. TENANT'S PRO RATA SHARE OF EXPENSES S11
ARTICLE IX. SIGNS
SECTION 9.01. SIGNS S12
ARTICLE X. MAINTENANCE
SECTION 10.01. LANDLORD'S OBLIGATIONS FOR MAINTENANCE S12
SECTION 10.02. TENANT'S OBLIGATIONS FOR MAINTENANCE S12
ARTICLE XI INSURANCE AND INDEMNITY
SECTION 11.01. TENANT'S INSURANCE S14
SECTION 11.02. LANDLORD'S INSURANCE S15
SECTION 11.03. COVENANT TO HOLD HARMLESS S15
ARTICLE XII. UTILITY CHARGES
SECTION 12.01. UTILITY CHARGES S16
ARTICLE XIII. ESTOPPEL STATEMENT, ATTORNMENT AND SUBORDINATION
SECTION 13.01. ESTOPPEL STATEMENT S17
SECTION 13.02. ATTORNMENT S18
SECTION 13.03. SUBORDINATION S18
SECTION 13.04. REMEDIES S18
ARTICLE XIV. ASSIGNMENT AND SUBLETTING
SECTION 14.01. NO ASSIGNMENT OR SUBLETTING S18
ARTICLE XV. WASTE
SECTION 15.01. WASTE OR NUISANCE S19
TABLE OF CONTENTS
PAGE
ARTICLE XVI. TRADE NAME, PROMOTIONAL CHARGE
SECTION 16.01. TRADE NAME S19
SECTION 16.02. SOLICITATION OF BUSINESS S19
SECTION 16.03. PROMOTIONAL CHARGE S19
ARTICLE XVII. DESTRUCTION OF LEASED PREMISES
SECTION 17.01. RECONSTRUCTION OF DAMAGED PREMISES S20
SECTION 17.02. WAIVER OF SUBROGATION S21
ARTICLE XVIII. EMINENT DOMAIN
SECTION 18.01. TOTAL CONDEMNATION OF LEASED PREMISES S21
SECTION 18.02. PARTIAL CONDEMNATION S21
SECTION 18.03. LANDLORD'S AND TENANT'S DAMAGES S22
ARTICLE XIX. DEFAULT
SECTION 19.01.RIGHT TO RE-ENTER S22
SECTION 19.02.RIGHT TO RELET S23
SECTION 19.03.EXPENSES S23
SECTION 19.04.WAIVER OF COUNTERCLAIMS AND TRIAL BY JURY S23
ARTICLE XX. BANKRUPTCY OR INSOLVENCY
SECTION 20.01. TENANT'S INTEREST NOT TRANSFERABLE S24
SECTION 20.02. TERMINATION S24
SECTION 20.03. TENANT'S OBLIGATION TO AVOID CREDITORS' PROCEEDINGS S24
SECTION 20.04. RIGHTS AND OBLIGATIONS UNDER THE BANKRUPTCY CODE S24
ARTICLE XXI. ACCESS BY LANDLORD
SECTION 21.01. RIGHT OF ENTRY S25
ARTICLE XXII. TENANT'S PROPERTY
SECTION 22.01. TAXES ON TENANT'S PROPERTY S25
SECTION 22.02. LOSS AND DAMAGE S25
SECTION 22.03. NOTICE BY TENANT S25
ARTICLE XXIII. HOLDING OVER
SECTION 23.01. HOLDING OVER S26
SECTION 23.02. SUCCESSORS S26
ARTICLE XXIV. RULES AND REGULATIONS
SECTION 24.01. RULES AND REGULATIONS S26
ARTICLE XXV. QUIET ENJOYMENT
SECTION 25.01. LANDLORD'S COVENANT S26
SECTION 25.02. TENANT'S COVENANT S26
ARTICLE XXVI. SECURITY PROVISION
SECTION 26.01. SECURITY S26
ARTICLE XXVII. MISCELLANEOUS
SECTION 27.01. WAIVER: ELECTION OF REMEDIES S27
SECTION 27.02. ENTIRE AGREEMENT S27
SECTION 27.03. INTERPRETATION AND USE OF PRONOUNS S27
SECTION 27.04. DELAYS S28
SECTION 27.05. NOTICES S28
SECTION 27.06. CAPTIONS AND SECTION NUMBERS S28
SECTION 27.07. BROKER'S COMMISSION S28
SECTION 27.08. RECORDING S28
SECTION 27.09. FURNISHING OF FINANCIAL STATEMENTS S28
SECTION 27.10. LANDLORD'S USE OF COMMON AREAS S28
SECTION 27.11. TRANSFER OF LANDLORD'S INTEREST S28
SECTION 27.12. FLOOR AREA S29
SECTION 27.13. INTEREST ON PAST DUE OBLIGATIONS S29
SECTION 27.14. LIABILITY OF LANDLORD S29
SECTION 27.15. ACCORD AND SATISFACTION S29
SECTION 27.16. EXECUTION OF LEASE; NO OPTION S30
SECTION 27.17. GOVERNING LAW S30
SECTION 27.18. SPECIFIC PERFORMANCE OF LANDLORD'S RIGHTS S30
SECTION 27.19. CERTAIN RULES OF CONSTRUCTION S30
SECTION 27.20. INDEX S30
SECTION 27.21. SURVIVAL; NONDISCLOSURE; FREE ACT S30
EXHIBIT A SITE PLAN; LEASED PREMISES; LEGAL DESCRIPTION (if included)
EXHIBIT B CONSTRUCTION
EXHIBIT X-x UTILITIES
EXHIBIT B-2 (additional construction information and procedures, if any) EXHIBIT
C CENTRALAIR/CONDENSER-WATER SYSTEM (if any) OTHER EXHIBITS (if any) RIDER
WOODFIELD MALL
A Regional Retail Development
VILLAGE OF SCHAUMBURG, ILLINOIS
THIS LEASE made as of this 22nd day of January, 1999, by and between CHICAGO
TITLE AND TRUST COMPANY, a corporation of Illinois, as Trustee under Trust No.
46746, and not personally, (Landlord), and TOYS INTERNATIONAL, the address of
which is 000 Xxxxxxxxx Xxxxx, Xxx Xxxxxx, XX 00000 (Tenant) All of the
provisions of the Lease, including the Data Sheet, the standard provisions
commencing with Article I and continuing through Article XXVII of the Lease
(11ereinafter at times referred to as the "text of the Lease" or the "Standard
Form"), the Addendum, all exhibits, and riders, if any, are incorporated in full
in this preamble as if fully set forth at this point
DATA SHEET
The following references furnish data to be incorporated in the specified
Sections of the Lease and shall be construed to incorporate all of the terms of
the entire Section as stated in the said Lease
(1) Section 1.01: Leased Premises: Store Number 113, situated on the lower
level of Building "F," having an irregular shape and consisting of approximately
eleven thousand eight hundred five (11,805) square feet and having a frontage of
at least sixty feet (60').
(2) Section 1.02: Commencement Date of Term: The later of: (i) June 1, 1999,
or (ii) the date one hundred twenty (120) days following the date that the
leased premises are available to Tenant
Length of Term: Ten (10) lease years
(3) Section 2.01 and Section 2.02: Name and Address for Rent Payments:
Payments from Tenant shall be made payable to Woodfield Associates, arid shall
be sent to:
Woodfield Associates
Department 55401
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000-0000
Section 27.05: Notice Address for Landlord:
Woodfield Associates
000 Xxxx Xxxx Xxxx Xxxx
X.X. Xxx 000
Xxxxxxxxxx Xxxxx, XX 00000-0000
(4) Section 2.01: Minimum Rent: Four Hundred Seventy-Two Thousand Two
Hundred and 00/100ths Dollars ($472,200.00) per arinum, payable in equal
consecutive monthly installments of Thirty-Nine Thousand Three Hundred Fifty and
00/lOoths Dollars ($39,350.00).
(5) Section 2.02(a): Percentage Rent: Six percent (6%) (the "percentage rent
factor") of Gross Sales made during each lease year of the term hereof in excess
of Seven Million Eight Hundred Seventy Thousand and 00/lOOths Dollars
($7,870,000.00) ("Minimum Gross Sales").
(6) Section 5.01(1)): Design of Leased Premises The store design to be used
by Tenant in the preparation of
Working Drawings and Specifications for Tenant's Work in the leased premises
shall be substantially the same as the store design reflected in the design for
the Toys International store for The Block, Orange County, California. and
Tenant's architect shall provide certification to Landlord, with the submission
of such Working Drawings and Specifications, that this store design requirement
has been satisfied. The Working Drawings and Specifications for Tenant's Work in
the leased premises shall be completed and submitted to Landlord no later than
sixty (60) days following the later of: (a) receipt by Tenant of Space Layout
Drawings or (b) full execution of this Lease Such submission shall also include
the certification of Tenant's architect that the Working Drawings and
Specifications comply with the Space Layout Drawings provided by Landlord, all
criteria and specifications set forth in Exhibits B and B- 1 and any further
construction exhibits attached to this Lease, and all applicable code
requirements. Landlord shall not withhold its approval of the store design
indicated in the Working Drawings and Specifications if Tenant and Tenant's
architect shall comply with the foregoing requirements.
(7) Section 5.01(c): Tenant Reimbursement to Landlord: Not applicable.
(8) Section 7.01: Permitted Use: For the retail sale of toys and. at
Tenant's option. better quality collectibles, hobbies, arts & crafts, children's
books, dolls, model kits, child oriented games, child oriented video and audio
cassettes, children's compact discs and laser discs and other technological
innovations of said media children's computer software, children's sporting
goods, wheel goods, stuffed animals, and other such child-related entertainment
goods. Store will feature a children's library with books sold by the store; a
children's play area with toys sold in the store, a children's theatre with
theatre seating and benches, theatre will show children's videos and feature
films, and, at Tenant's option, a children's computer center featuring software
sold in the store. Tenant will sell children cllothing not to exceed ten percent
(10%) of floor area.
(9) Section 7.03: Radius: Ten (10) miles.
(10)Section 16.01: Trade Name: "Toys International"
(11)Section 16.03: Original Annual Promotional Charge: Eighteen Thousand
Seven Hundred Sixty -Nine and 00/100ths Dollars ($18,769.00). Original annual
promotional charge to be paid in monthly installments of One Thousand Five
Hundred Sixty-Four and 08/100ths Dollars ($1,564,08).
(12)Section 26.01: Security Deposit: Not applicable. Additional Security:
Not applicable.
(13)Guarantor(s): Playco Toys & Entertainment Corp.
Address(es): 000 Xxxxxxxxx Xxxxx
Xxx Xxxxxx, XX 00000
(14)Rider: Toys International Standard Rider
SPECIAL PROVISIONS:
In the event of an express conflict between the provisions of this Lease,
any such conflict shall be resolved with the following priority to determine
which portion of the Lease controls: (i) the Special Provisions of the Data
Sheet ii) the other provisions of the Data Sheet; (iii) the Addendum; (iv) the
Rider; (v) Exhibit B-2D (if applicable), Exhibit B-I. and Exhibit C; (vi) the
body of the Lease, Exhibit A, and Exhibit B.
Addendum. Section 12.01: On page A-i, line 32 and 45, in place of the
deletions, insert "thirty (30)"
On page A-i, line 48, after the word "Section.", delete the period and
insert " or refunded if at or after the end of the lease term."
Addendum. Section 16.03(e): The references in this Section to "four (4)"
shall be
changed to "one (1)".
On page A-2, line 44, after the word "period,", insert "and Such failure
continues for twenty (20) days after Landlord notifies Tenant thereof,"
On page A-2, line 45, in place of the deletion, insert "thirty (30)"
Section 1.02: Provided Tenant shall not at any time during such initial four (4)
month period be in default under any of the terms, covenants or conditions of
said Lease beyond any applicable cure period, minimum rent for the initial four
(4) months of the lease term shall be abated. Landlord and Tenant agree that no
portion of the minimum rent paid by Tenant after the expiration of any period
during which such rent was abated shall be allocated by Landlord or Tenant to
such abatement period, nor is such rent intended by the parties to be allocable
to any abatement period. In the event that this Lease is terminated prior to
expiration of the stated lease term as the result of a default by Tenant, Tenant
shall immediately repay to Landlord an amount equal to the then unamortized
portion of the minimum rent abatement which amortization shall be on the
straight-line basis over the full stated lease term, plus interest on such
unamortized portion at a rate equal to three (3) percentage points above the
prime rate then charged by a plurality of FDIC member banks headquartered in the
State, which interest shall accrue from the date of the minimum rent abatement
through the date of termination of the Lease. The cost of Tenant's leasehold
improvements pursuant to Section 1.02 hereof shall be less the aggregate amount
of such abatement
The leased premises are presently leased to a tenant whose lease term has
not expired. The commencement of the term hereof is subject to Landlord entering
into a termination of lease agreement with such tenant under which such tenant
in fact vacates the leased premises This paragraph shall not give Landlord any
additional termination rights beyond those stated in Section 5.03.
*for the fifth lease year as
Further, in the event Tenant does not achieve 'Gross Sales' (as hereinafter
defined) of at least Three Million Five Hundred Thousand and 00/lOOths Dollars
($3,500,000.00) during the fifth (5th) lease year of the term hereof, then
Tenant provided it shall not be in default beyond any applicable cure period,
shall, for a period of sixty (60) days, arid Landlord shall, for a period of
ninety (90) days, after the last date that Tenant is obligated to furnish to
Landlord its annual written report of Gross Sales required pursuant to Section
3.02 hereof. have the option, upon sixty (60) days prior written notice to the
other party, of terminating this Lease. In the event that neither party
exercises the foregoing options to terminate this Lease within the required time
period, then each such option shall, upon expiration of the applicable period,
become null and void and be of no further force or effect. In the event Tenant
fails to submit a certified report of Gross Sales within the time permitted
pursuant to Section 3.02 of the said Lease, then such information as Landlord
shall have available to permit Landlord to make a determination as to the amount
of Gross Sales achieved by Tenant during the period covered by Landlord's option
to terminate shall be the basis for Landlord exercising its termination right
arid Tenant shall not be permitted to reinstate the Lease after termination for
any reason or cause whatsoever, including, but not limited to, the submittal by
Tenant of a subsequent sales report either certified or uncertified. The Gross
Sales to be evaluated under this paragraph shall include only regular retail
sales to individual customers and shall not include any wholesale, commercial,
bulk, corporate, intra-company or warehouse transfers or sales of merchandise or
services. Tenant shall only be permitted to exercise its option to terminate
this Lease for failure to achieve certain Gross Sales during a particular time
period if, subject to force majeure, Tenant shall have operated its business in
accordance with the requirements of Section 7.02 during the entire time period
in question; provided, however, that, unless Tenant's failure to operate in
accordance with Section 7.02 is due to a voluntary decision on Tenant's part to
totally cease the operation of its business in which event no notice shall be
required, Tenant shall not be deemed to have failed to so operate unless
Landlord shall have notified Tenant as to the default upon which Landlord is
claiming that Tenant is not so operating, and Tenant shall have failed to cure
or correct such default within twenty (20) days after receipt or refusal of such
notice. At Landlord's sole option, the above stated Gross Sales figure shall be
reduced by l/360th for each day during the above stated time period that Tenant
was required to operate its business in the leased premises but shall not have
operated its business in the leased premises. In the event that at any time or
times during the fifth (5th) lease year Tenant is prevented from operating due
to matters or causes beyond Tenant's control, then for purposes of this
paragraph only, Tenant's Gross Sales for the time period Tenant is not operating
as the result of said matters or causes shall be considered equal to Tenant's
Gross Sales for the identical time period during the most recent lease year as
to which Tenant was not prevented from operating its business in the leased
premises.
Further, in the event the commencement date of the Lease does not occur
until after August 1, 1999, then the length of the term of this Lease shall be
eleven (11) lease years
Section 2.04: The provisions of Section 2.04 shall not apply to Tenant.
Section 5.03: The references in this Section to "eighteen (18)" shall be
changed to "six (6)" and the six (6) month period shall be deemed to have an
expiration date of July 1, 1999.
Section 16.03(a): The initial promotional charge shall not apply to Tenant.
Further, the cumulative percentage increase in the annual promotional
charge under this Section shall not exceed five percent (5%) per annum
compounded annually.
Section 19.01(a): The Cross Default provisions of this Subsection shall not
apply to this Lease.
Exhibit B. Section II.B.: The $20.00 per lineal foot charge shall not apply
to Tenant.
Exhibit B. Section II.C.: The $45.00 per lineal foot charge shall not apply
to Tenant.
Exhibit B. Section m.D.2.a.: Neither the $45.00 per lineal foot charge nor
the $66.00 per lineal foot charge shall apply to Tenant. Exhibit B. Section
IV.D.1.d.: The capital facility connection charges and other charges imposed by
this Subsection shall not apply to Tenant.
Exhibit B. Section V.B.3.: The fee for Coordination and Administrative
Services shall not apply to this Lease.
Exhibit B. Section VI.B.5.: Such remodeling and refurbishing shall be
limited to resurfacing only if necessary (both interior and exterior),
including, but not limited to, replacement of all floor coverings and wall
coverings (if visibly worn), and provided further that no structural changes or
redesign of components (other than resurfacing items as stated) shall be
required.
Exhibit B. Section VI.D.2: The electrical service charge in this Section
shall not apply to Tenant.
Exhibit B. Section VI.D.3.: The trash removal charge in this Section shall
not apply to Tenant.
Exhibit B-1. Section II.A.1.: On page 1, line 13, after the word
"connection", insert "at the rear of the leased premises"
[End of text of Data Sheet]
EXECUTION/ACKNOWLEDGMENT
In confirmation of their agreement to enter into this Lease (including the
Preamble, Data Sheet, Addendum, Standard Form, all exhibits, and the Rider (if
any) attached hereto), and intending to be bound hereby, Landlord and Tenant
have signed and sealed this Lease as of the day and year first above written on
page Dl of this Lease.
In the Presence of:
CHICAGO TITLE AND TRUST COMPANY, a corporation of
Illinois, as Trustee under Trust No 46746 and not
personally,
By:
Its Authorized
Agent
LANDLORD
TOYS INTERNATIONAL, INC.
Its:
Its:
Print Title:
Print Name:
Print Title &~ C
TENANT
Tenant's Federal Tax Identification Number:
00-0000000
Tenant's corporate seal
It is expressly understood and agreed by and between the parties hereto,
anything herein to the contrary notwithstanding, that each and all of the
warranties, indemnities, representations. covenants, undertakings and agreements
herein made on the part of the Trustee while in form purporting to be
warranties, indemnities, representations, covenants, undertakings and agreements
of said Trustee are nevertheless each and every one of them, made and intended
not as personal warranties, indemnities, representations, covenants,
undertakings and agreements by the Trustee or for the purpose or with the
intention of binding said Trustee personally but are made and intended
for the purpose of binding only that portion of the trust property specifically
described herein, and this instrument is executed and delivered by said Trustee
not in its own right, but solely in the exercise of the powers conferred upon it
as such Trustee and that no personal liability or personal responsibility is
assumed by nor shall at any time be asserted or enforceable against the Chicago
Title and Trust Company or any of the beneficiaries under said Trust Agreement,
on account of this instrument or on account of any warranty, indemnity,
representation, covenant, undertaking or agreement of the said Trustee in this
instrument contained, either expressed or implied, all such personal liability,
if any, being expressly waived and released.
ACKNOWLEDGMENT OF LANDLORD
STATE OF MICHIGAN )
)ss.
COUNTY OF OAKLAND )
On this 22nd day of January, l999 before me personally appeared the above
named Agent of the Chicago Title and Trust Company, Trustee, personally known to
me to be the same person whose name is subscribed to the foregoing Lease as such
Agent, and acknowledged before me that he signed and delivered the said Lease as
his own free and voluntary act and as the free and voluntary act of said Company
for the uses and purposes therein set forth; and the said Agent then and there
acknowledged that said Agent, as custodian of the corporate seal of said
Company, caused the corporate seal of said Company to be affixed to said Lease
as said Agent's own free and voluntary act and as the free and voluntary act of
said Company for the uses and purposes therein set forth.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
[UNREADABLE]
ADDENDUM -- WOODFIELD MALL
All of the provisions set forth in this Addendum are in addition to, and not in
substitution for, the provisions of the Standard Form, except to the extent
specifically otherwise stated.
Section 1.01(a). LEASED PREMISES: The regional retail development is
commonly known as "Woodfield Mall," located in the Village of Schaumburg, Xxxx
County, Illinois.
Section 7.02. OPERATION OF BUSINESS: To the extent that Tenant shall accept
payment by credit card for goods or services offered from the leased premises,
Tenant shall be obligated to comply with the "point-of-purchase" display
requirements of its merchant agreement with the credit card company designated
in writing by Landlord from time to time. If Landlord has not designated a
particular credit card company, then the provisions of this paragraph shall not
apply. Likewise, if Tenant does not have a merchant agreement with the credit
card company designated by Landlord, the provisions of this paragraph shall not
apply.
Section 12.01 UTILITY CHARGES: In substitution for the text of paragraphs
(a) through (g) of Section 12.01, the following provisions shall apply:
Tenant shall be solely responsible for and shall promptly pay all charges
for water, gas, heat, electricity, sewer and any other utility used upon or
furnished to the leased premises. Tenant shall contract directly with and shall
be solely responsible to the public utility companies for the installation of
service and the payment of all charges for Tenant's usage of such utility
services. Landlord shall have the right, at its sole option, to supply
electricity to the leased premises in which event the minimum rent reserved
under this Lease will be increased for the period that Landlord so supplies such
electricity to include the increase in the fair and reasonable rental value of
the leased premises due to the supplying of such electricity in accordance with
the numbered paragraphs set forth below. If Landlord shall elect to supply any
of 'the foregoing other utilities used upon or furnished to the leased premises,
Tenant agrees to purchase and pay for same as additional rent, within ~ days of
the presentation by Landlord to Tenant of bills therefor, at the rates which
would be applicable to Tenant as a direct customer of the public utility
company, as such rates are filed by the utility company serving the area with
the proper regulating authority and in effect from time to time covering such
services. Landlord shall also have the right to periodically estimate the
monthly amount required to be paid by Tenant to Landlord with respect to any or
all of such services provided by Landlord and such estimated monthly amount or
amounts shall be paid by Tenant on the first day of each calendar month, in
advance, at the place and in the manner specified for payments of minimum rent
hereunder. Landlord shall have the right to change such estimated amount or
amounts at any time and from time to time. by notice to Tenant. If the total of
the estimated monthly payments made by Tenant shall be less for any lease year
or calendar year than the actual amount due from Tenant pursuant to the
provisions of this Section, Tenant shall pay to Landlord the difference between
the amount paid by Tenant and the actual amount due within ~~(4~) days after
submission to Tenant of Landlord's statement and invoice therefor; and if the
total of the estimated payments made by Tenant for any such year shall exceed
the actual amount due from Tenant, the excess amount paid shall be credited
against the next payment due from Tenant to Landlord under this Section. The
obligation of Tenant to pay for such utilities shall commence as of the date on
which possession of the premises is delivered to Tenant, without regard to any
free rent period or formal commencement date of this Lease.
Prior to the commencement of the term of this Lease,
(1) Landlord shall analyze Tenant's Working Drawings and Specifications
covering its construction of the leased premises and shall determine Tenant's
annual electric (kilowatt) requirements at the leased premises. Such
determination shall be based upon (i) Tenant's electric requirements for the
projected number of hours per year during which the leased premises will be open
for business (i.e., the number of hours established for the Shopping Center by
the Landlord), and during which Tenant's employees will be present at the leased
premises (for inventory, clean-up, meetings, etc.): and (ii) Tenant's electric
requirements during the remaining hours in the year. Based upon such
information, Landlord will calculate the annual amount which Tenant would be
charged by the local electric public utility company for furnishing such
electrical energy, and Tenant agrees that the minimum rent reserved under the
Lease will be increased by such amount.
(2) Landlord reserves the right to further increase the minimum rent to
reflect any increase in the annual amount which Tenant would be charged by the
local electric utility company or in the event of any change in the construction
of the leased premises or if Tenant operates its premises in excess of the
number of hours as projected above.
(3) At any time after the execution of the Lease, either Landlord or Tenant
may request an appraisal by an independent electrical engineer, mutually
acceptable to Landlord and Tenant, who is qualified to determine whether the
adjustment in the minimum rent as computed by Landlord is below or in excess of
the amount which Tenant would be charged by the local electric utility company
for furnishing such electrical energy. If Landlord and Tenant cannot agree
promptly upon an independent electrical engineer, then the matter shall be
submitted for arbitration before the American Arbitration Association.
(4) The appraisal or arbitration, as the case may be, shall be binding on
both parties and shall set forth the amount, if any, by which the adjustment of
the minimum rent reflecting the increased value of the leased premises resulting
from Landlord supplying electrical energy is below or in excess of the annual
amount which Tenant would be charged by the local electric utility company for
furnishing such electrical energy. The minimum rent shall thereupon be adjusted
by the amount of such deficiency or excess, such adjustment to become effective
as of the first day of the month following the month in which demand for the
appraisal was made.
(5) The cost of such appraisal or arbitration shall be shared equally
between Landlord and Tenant; provided, that if either party requests an
appraisal prior to one year after the effective date of the last preceding
appraisal or arbitration, the entire cost of such appraisal or arbitration shall
be paid for by the party requesting such appraisal. In each case, upon
completion of an appraisal and, if necessary. arbitration pursuant to this
agreement, the parties agree that the minimum rent shall reflect such adjustment
or adjustments.
Section 16.03. PROMOTIONAL CHARGE: (e) In any event, and notwithstanding
the formation of a promotion fund or Merchants' Association, Tenant agrees to
participate in at least four (4) Shopping Center promotions in each lease year.
Tenant shall reimburse to Landlord all costs of including Tenant in each
promotion. Such promotions may consist of tabloids, circulars, catalogs, special
Shopping Center newspaper inserts or sections. direct mailings, electronic media
including radio and television, standard newspaper advertisements and/or any
other promotions sponsored by Landlord. The media type, format and content of
any such promotions, as well as the timing of any such promotions, shall be in
Landlord's sole discretion. If Landlord establishes more than four (4) Shopping
Center promotions in each lease year, Tenant shall be permitted to determine in
which four (4) promotions it shall participate. Tenant shall be required to
submit a proposed advertisement within thirty (30) days after Landlord's notice
of the type of promotion being sponsored and the requirements for individual
advertisements in connection with such promotion. In the event that Tenant fails
to submit a proposed advertisement in accordance with such advertising
requirements within the thirty (30) day period, Tenant shall be in default
hereunder. All amounts payable by Tenant hereunder shall be payable within ~
days after written notice by Landlord.
Section 26.01. SECURITY: For purposes of this Section 26.01, references to
Landlord shall be deemed to be references to Woodfield Associates for payment,
retention and application of said security deposit.
Section 27.14. LIABILITY OF LANDLORD: The parties hereto agree that
wherever in this Lease the term "Woodfield Associates" or "beneficiary" of the
Trust (or trust) S used, it shall be deemed to mean Woodfield Associates, its
successors and assigns, or any other entity designated in writing by Landlord.
Exhibit B, Additional Construction Exhibit (if any): To the extent that any
construction exhibit beyond Exhibits B and B-1 shall be attached to the Lease,
and any such exhibit shall refer to electrical criteria, such
electrical criteria shall be field verified by Tenant prior to preparation of
any plans for Tenant's Work and prior to the undertaking of any work with
respect to the leased premises. Tenant shall be solely responsible for such
verification.
[End of text of Addendum]
STANDARD FORM
ARTICLE X. XXXXX AND TERM
SECTION 1.01. LEASED PREMISES. (a) Landlord, in consideration of the rent
to be paid and the covenants to be performed by Tenant, does hereby demise and
lease unto Tenant, and Tenant hereby rents and hires from Landlord, those
certain premises in the regional retail development shown on Exhibit A, subject
to covenants, restrictions and easements of record, the terms and provisions of
certain reciprocal easement and/or operating agreements now or hereinafter
entered into by Landlord with the owners or lessees of the Department Store
Sites, and the terms and provisions of the underlying lease, if any. It is
agreed that the term "regional retail development' as used herein shall mean and
refer to the Department Stores and the Shopping Center, including the buildings
located or to be located thereon, all as shown on the site plan which is set
forth in Exhibit A attached hereto and made a part hereof, and that the term
"Shopping Center" shall, except as otherwise specifically provided herein, mean
and refer to the hatched and the shaded portions of such site plan which
portions from time to time open directly on the enclosed Mall and which may vary
at each level of the regional retail development, together with the enclosed
Mall (whether or not shaded or hatched). The approximate location of the
premises leased to Tenant hereunder is shown in Exhibit A. The legal description
of the regional retail development or of the Shopping Center is set forth in
Exhibit A or referenced in the Addendum attached hereto and made a part hereof.
The leased premises (herein referred to as the "leased premises" or "premises")
are described as set forth in the Data Sheet attached hereto. As used in this
Lease, the term "State" shall mean the state in which the Shopping Center is
located.
(b) The exterior walls and the roof of the leased premises and the area
beneath said premises are not demised hereunder, and the use thereof, together
with the right to locate, both vertically and horizontally, install, maintain,
use, repair and replace pipes, utility lines, ducts, conduits, flues,
refrigerant lines, drains, sprinkler mains and valves, access panels, wires and
structural elements leading through the leased premises serving other parts of
the regional retail development, is hereby reserved unto Landlord. Landlord
reserves an easement in, over and through the area occupied by the storefront of
the leased premises and an easement above Tenant's finished ceiling to the roof,
or to the bottom of the floor deck above the leased premises, for general access
purposes and in connection with the exercise of Landlord's other rights under
this Lease.
(c) The attached site plan of the regional retail development, Exhibit A,
includes premises identified thereon as Department Store Sites, including the
buildings located or to be located thereon, which sites are collectively
hereinafter referred to as the "Department Store Sites" and/or "Department
Stores," unless otherwise specifically set forth. It is agreed that, wherever
the term "Shopping Center" is used herein, it shall be deemed to exclude the
Department Store Sites (even if such Sites shall be within the hatched and/or
shaded area shown on the site plan), except as otherwise specifically stated
herein. In addition, said site plan includes other portions of the Shopping
Center which Landlord may from time to time sell or lease for the purpose of
construction and/or use by one or more department stores (as defined in Section
27.12 hereof), which portion(s) may thereupon, at Landlord's option, be referred
to and treated as "Department Store Site(s)" and/or "Department Stores" upon
occupancy thereof by a department store, and which, at Landlord's option, may be
excluded from the Shopping Center. In the event Landlord elects to enlarge the
regional retail development, any additional area may be included by Landlord in
the definition of the Shopping Center for purposes of this Lease. Landlord shall
also have the general right from time to time to include within and/or to
exclude from the defined Shopping Center any existing or future areas, and the
floor area of the Shopping Center shall be accordingly adjusted.
SECTION 1.02. COMMENCEMENT AND ENDING DAY OF TERM. The term of this Lease
shall commence upon (a) the commencement date set forth in the Data Sheet, or ~)
the date on which Tenant opens its store in the leased premises for business to
the public, whichever of said dates is the first to occur, and shall end on the
final day of the last lease year of the term or other specified date as set
forth in the Data Sheet, unless sooner terminated as hereinafter provided. For
the purpose of this Lease, the first "lease year" shall be a period commencing
on the day the term of this Lease commences and ending on January 31 next
following; after the first lease year, the term "lease year" shall mean a fiscal
year of twelve (12) consecutive calendar months commencing on February 1 of each
calendar year, except that the final lease year of the term shall be a period of
less than twelve (12) consecutive calendar months in the event that an
expiration date other than January 31 is set forth in the Data Sheet.
SECTION 1.03. OPENING. Tenant covenants and agrees to complete its
construction within the leased premises in accordance with the pro"isions of
this Lease and to open its store for business to the public not later than the
date established for commencement of the term of this Lease pursuant to Section
1.02 hereof.
ARTICLE II. RENT
SECTION 2.01. MINIMUM RENT. (a) The minimum rent during the term of this
Lease shall be the amount Set forth in the Data Sheet attached hereto as
adjusted pursuant to Section 2.04 or other provisions of this Lease, which sum
shall be payable by Tenant in equal consecutive monthly installments in the sum
set forth in the Data Sheet attached hereto, on or before the first day of each
month, in advance, payable as set forth, and at the address set forth, in the
Data Sheet attached hereto under "Name and Address for Rent Payments," or such
other place as the Landlord may designate in writing, such payments to be
without any prior demand therefor and without any deductions or setoff
whatsoever.
(b) Should the term of this Lease commence on a day other than the first
day of a calendar month, then the rent for such month shall be prorated on a
daily basis based upon a thirty (30) day calendar month. Should any lease year
contain less than twelve (12) calendar months, said annual rent shall be
prorated.
SECTION 2.02. PERCENTAGE RENT. (a) In addition to the payment of the
minimum rent, as hereinbefore provided, Tenant shall pay to Landlord for each
lease year of the term hereof, as percentage rent, an amount equal to the
percentage rent factor (see Data Sheet) multiplied by all Gross Sales resulting
from business conducted in, on or from the leased premises during such lease
year in excess of the amount of Gross Sales set forth in the Data Sheet
hereinafter referred to as "Minimum Gross Sales"). Subsequent to the date upon
which Tenant is initially obligated to open for business in the leased premises,
in addition to any and all other remedies afforded to Landlord under this Lease
by reason of default, "Minimum Gross Sales" shall be reduced by 11360th for each
day or portion thereof that Tenant does not operate its business pursuant to
Section 7.02 hereof. If percentage rent hereunder shall be calculated on the
basis of a split percentage arrangement, as defined in subsection (1,) below,
then the reduction required by the preceding sentence shall be applied to the
minimum rent which would otherwise be deductible in the calculation of
percentage rent with respect to all Gross Sales of Tenant provided that such
reduction shall be made solely for the purpose of the percentage rent
calculation). The percentage rent shall be payable as set forth, and at the
address set forth, in the Data Sheet attached hereto under "Name and Address for
Rent Payments," or such other place as the Landlord may designate in writing,
such payments to be without any prior demand therefor and without any deductions
or setoff whatsoever.
(b) Such percentage rent shall be paid in quarter-annual installments
computed on all Gross Sales during each quarter-annual period of the term hereof
in excess of one quarter (114) of annual Minimum Gross Sales. Such
quarter-annual periods during each lease year shall be measured as follows:
February through April, May through July, August through October, and November
through January. Such quarter-annual installments shall be payable within thirty
(30) days after the expiration of each three (3) month period of each lease
year. In the event that the total of the quarter-annual installments of
percentage rent for any lease year does not equal the percentage rent computed
on the total amount of Gross Sales for such lease year, in accordance with the
formula set forth in the Data Sheet, then Tenant, at the time it submits the
annual statement of Gross Sales required under Section 3.02, shall pay Landlord
any deficiency, or Landlord shall credit any overpayment to the next installment
of percentage rent due from Tenant, as the case may be. In no event, however,
shall the aggregate of minimum rent and percentage rent to be paid by Tenant and
retained by Landlord for any lease year be less than the minimum rent specified
herein. If the commencement date of the lease term is other than February 1,
then the percentage rent covering the first lease year hereunder shall be paid
in the following manner: for the quarter-annual period during which the lease
term commences, the percentage rent shall be equal to the product of the
percentage rent factor and the amount of Gross Sales in excess of a prorated
fraction of annual Minimum Gross Sales (with such prorated fraction to be
calculated by taking the number of days remaining in such quarter annual period
as of the date the leased premises are initially opened for business to the
general public, dividing by 360, and multiplying the resulting quotient by the
stated annual Minimum Gross Sales figure); for the balance of the first 'ease
year, the percentage rent shall be equal to the product of the percentage rent
factor and the amount of Gross Sales in excess of one-quarter (1/4) of annual
Minimum Gross Sales during each subsequent quarter-annual period. If the
expiration date of the lease term is other than January 31, then the percentage
rent covering the final lease year hereunder shall be calculated in a like
manner, with proration to occur in the quarter-annual period during which the
lease term expires In the event that Tenant shall be obligated to pay percentage
rent calculated on different percentages for more than one category of
merchandise and/or services (a "split percentage" arrangement), then the
percentage rent payable by Tenant hereunder shall be calculated for each
quarter-annual period (and for any fractional period occurring at the beginning
or end of the term) based upon the stated percentages being applied to the
respective categories of Gross Sales for such period, with the minimum rent paid
by Tenant for any such period being deducted from the combined total in order to
arrive at the percentage rent owing by Tenant for such period. Such amounts
shall be payable within thirty (30) days after the expiration of the applicable
period.
SECTION 2.03. GROSS SALES. 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 merchandise or services and all other
receipts whatsoever of all business conducted in or from the leased premises by
Tenant, or by all
concessionaires (as defined in Section 3.02 hereof) or otherwise,
including, without limitation, mail, catalogue or telephone orders received or
filled at the leased premises, all deposits not refunded to purchasers, and
orders taken, although said orders may be filled elsewhere. 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 that
(i) the transaction is initially reflected in the books or records of Tenant or
a concessionaire (if a concessionaire makes the sale), or (ii) Tenant or such
concessionaire 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 otherwise, 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.
No deduction shall be allowed for direct or indirect discounts, rebates, or
other reductions on sales to employees or others, unless generally offered to
the public on a uniform basis. In addition, no deduction shall be allowed for
uncollected or uncollectible credit accounts, or for trade-ins or other credits
on sales to employees or others. The term "Gross Sales" shall not include,
however, any sums collected and paid out by Tenant for any sales or excise tax
imposed by and accounted for by Tenant to any duly constituted governmental
authority, nor shall it include the exchange of merchandise between the stores
of Tenant, if any, where such exchange of goods or merchandise is made solely
for the convenient operation of the business of Tenant and not for the purpose
of consummating a sale which has theretofore been made in or from the leased
premises and/or for the purpose of depriving Landlord of the benefit of a sale
which otherwise would be made in or from the leased premises, nor shall the term
include the amount of returns to shippers or manufacturers, nor proceeds from
the sale of trade fixtures. There shall be deductible from Gross Sales the
amount of any cash or credit refund made upon any sale in or from the leased
premises, previously included in "Gross Sales" hereunder, not to exceed the sum
so previously included, where the merchandise sold is thereafter returned by the
purchaser and accepted by Tenant. The term "merchandise" as used in this Lease
shall include food and beverages if Tenant is permitted to sell such items in
Section 7.01 hereof.
SECTION 2.04. RENT ADJUSTMENT. (a) Notwithstanding any provisions to the
contrary contained in this Lease, Tenant shall pay to Landlord as minimum rent
for the second lease year of the term of this Lease, and for each subsequent
lease year of said term, but subject to further increase pursuant to this
Section 2.04 and other provisions of this Lease, the greater of the amounts
calculated according to the formulas set forth in Paragraphs (i) and (ii) below.
(i) Minimum rent for the lease year in question shall be increased by the
net percentage of change between the Base Index and the Index published for the
first calendar month of such lease year (as such terms are defined below).
(ii) Minimum rent for the lease year in question shall be increased by the
amount of percentage rent payable for the immediately preceding lease year
pursuant to Section 2.02 hereof.
(b) For purposes of the foregoing calculations, the term "Base Index" shall
be the Index (as defined in Section 27.20), for the month during which the term
of this Lease commences (or, if the Index is not published for such month, then
the Index published for the month closest, but prior, to the lease commencement
date) Following any increase in minimum rent pursuant to Paragraph (a) above,
the "Base Index" for future calculations shall be redefined is the Index
published for the first calendar month of the lease year for which the minimum
rent has last been increased pursuant to said Paragraph (a). The Index for the
first calendar month of any given lease year, if the Index iv. not published for
such month, shall be the Index published for the month closest, but prior, to
the first calendar month of such lease year. For the purposes of this Section,
the percentage rent payable by Tenant for any lease year consisting of less than
twelve (12) full calendar months shall be calculated by dividing the percentage
rent payable by Tenant for such lease year pursuant to Section 2.02 hereof by
the actual number of days in such lease year, and by multiplying the resulting
quotient by 360. Landlord shall notify Tenant of the increased minimum rent for
each lease year following the determination of same by Landlord, and Tenant
shall pay such increased minimum rent for the applicable lease year in the
manner set forth in Section 2.01 hereof. In the event that the increase in
minimum rent results from the calculation set forth above in subsection (a)(ii),
then the Minimum Gross Sales otherwise applicable for such period shall be
increased by a percentage equal to the percentage increase in minimum rent made
by reason of the percentage rent payable in the preceding lease year. If
percentage rent under this Lease shall be calculated on the basis of a split
percentage arrangement, as defined in Section 2.02(1,) hereof, then, in the
event of an increase in minimum rent resulting from the calculation set forth
above in subsection (a)(i), only the minimum rent (not including such increase)
which would otherwise be deducted shall be deductible from the percentage rent
calculated with respect to all Gross Sales of Tenant. The minimum rent for any
period as stated in Section 2.01 hereof, if different than that stated for the
immediately preceding period, shall be adjusted by multiplying such different
minimum rent ("Changed Rent") by the cumulative percentage increase in minimum
rent pursuant to this Section from the commencement of the term of this Lease
through and including the first lease year during which such Changed Rent would
have become effective, with the resulting product to be added to such Changed
Rent to yield the effective minimum rent for such period, subject to further
adjustment as provided in this Section or elsewhere in this Lease.
(c) Upon the opening of any department store within the regional retail
development during the term of this Lease (if such department store was not open
for business to the general public as of the commencement date of this Lease),
the minimum rent and Minimum Gross Sales then in effect shall be immediately and
automatically increased by fifteen percent (15%), subject to further increases
pursuant to this paragraph, this Section and other provisions of this Lease.
SECTION 2.05. TENANT'S TAX OBLIGATION. Tenant shall pay to Landlord its
proportionate share of all taxes and assessments which may be levied or assessed
by any lawful authority during the term of this Lease, or with
respect to each fiscal tax year falling in whole or in part during the term
of this Lease, against the land, buildings and improvements comprising the
Shopping Center, and of all other taxes which Landlord becomes obligated to pay
with respect to the regional retail development, irrespective of whether such
taxes are assessed against real or personal property. The portion of such taxes
and assessments allocated to the common areas of the Shopping Center, and the
portion of such taxes allocated to the "net-building area (Gross building area
less the sum of gross leasable floor area and common areas) of the Shopping
Center, shall be deducted from the total of such taxes and assessments and
charged to Tenant in accordance with the provisions contained in Section 8.03 of
this Lease. Tenant's proportionate share of the remaining taxes and assessments
(i.e.. those not charged under Section 8.03) shall be equal to the product
obtained by multiplying such taxes and assessments by a fraction, the numerator
of which shall be the number of square feet of floor area in the leased premises
and the denominator of which shall be the total number of square feet of gross
leased and occupied floor area in the Shopping Center. In the event that any
present or future enactment of the State or any political subdivision thereof or
any governmental authority having jurisdiction thereover either: (a) imposes a
direct or indirect tax and/or assessment of any kind or nature upon, against or
with respect to the rents payable by tenants or occupants in the regional retail
development to Landlord derived from the regional retail development or with
respect to the Landlord's (or the individuals' or entities' which constitute the
partners of the partnership which is the Landlord, or which is the beneficiary
of the Trust of which Landlord is Trustee, as applicable) ownership of the land
and buildings comprising the regional retail development, either in addition to
or by way of substitution for all or any part of the taxes and assessments
levied or assessed against such land and such buildings, including, without
limitation, any net profits tax or any comparable tax imposed on any portion of
Landlord's revenues from the regional retail development; and/or (1,) imposes a
direct or indirect tax or surcharge of any kind or nature, upon, against or with
respect to the parking areas or the number of parking spaces in the regional
retail development, then in either or both of such events, Tenant shall be
obligated to pay its proportionate share thereof as provided herein. For
purposes of this Section, the term "regional retail development" shall be deemed
to include the land upon which any parking facilities, temporary or permanent
off-site utility systems and any wooded area, lake, shoreline thereof or island
park serving the regional retail development are located with all improvements
situated thereon. To the extent that real estate taxes and assessments are the
obligation of Tenant pursuant to Section 8.03 hereof, the same shall not be
includable in Tenant's proportionate share pursuant to this Section.
Tenant's proportionate share of all of the aforesaid taxes and assessments
levied or assessed for or during the term hereof, as determined by Landlord,
shall be paid in monthly installments on or before the first day of each
calendar month, in advance, in an amount estimated by Landlord; provided that
Landlord shall have the right to initially determine monthly estimates and to
revise the estimates from time to time, and shall have the right to apply such
monthly installments to tax bills according to the formula being utilized by
Landlord from time to time. Upon receipt of all tax bills and assessment bills
attributable to any calendar or fiscal year during the term hereof, Landlord
shall furnish Tenant with a written statement of the actual amount of Tenant's
proportionate share of the taxes and assessments for such ear. In the event no
tax xxxx is available, Landlord will compute the amount of such tax. If the
total amount paid by Tenant under this Section for any calendar or fiscal year
during the term of this Lease shall be less than the actual amount due from
Tenant for such year, as shown on such statement, Tenant shall pay to Landlord
the difference between the amount paid by Tenant and the actual amount due, such
deficiency to be paid within ten (10) days after demand therefor by Landlord,
and if the total amount paid by Tenant hereunder for any such calendar or fiscal
year shall exceed such actual amount due from Tenant for such year, such excess
shall be credited against the next of taxes and assessments ~ue from Tenant to
Landlord hereunder. All amounts due hereunder shall be payable to Landlord at
the place where the minimum rent is payable. In the event Landlord contests any
taxes levied or assessed during the term hereof upon, against or with respect to
the Shopping Center or any portion thereof or interest therein, or in the event
of Landlord's negotiation with respect to assessed valuation for the Shopping
Center, Tenant shall pay its proportionate share of Landlord's costs, expenses
and attorneys' fees in connection therewith calculated on the same basis as set
forth above in this Section. For the calendar or fiscal years in which this
Lease commences and terminates, the provisions of this Section shall apply, and
Tenant's liability for its proportionate share of any taxes and assessments for
such years shall be subject to a pro rata adjustment based on the number of days
of said calendar or fiscal years during which the term of this Lease is in
effect A copy of a tax xxxx or assessment xxxx submitted by Landlord to Tenant
shall at all times be sufficient evidence of the amount of taxes and/or
assessments assessed or levied against the property to which such xxxx relates.
Prior to or at the commencement of the term of this Lease and from time to time
thereafter throughout the term hereof, Landlord shall notify Tenant in writing
of Landlord's estimate of Tenant's monthly installments due hereunder.
SECTION 2.06. PAYMENTS. Rent shall be defined in this Lease as (i) minimum
rent, (ii) percentage rent and (iii) all other charges of whatever nature
required to be paid by Tenant under this Lease, including the Exhibits hereto.
The rent charges described in item (iii) of the preceding sentence shall, unless
otherwise specified, be due and payable ten (10) days after demand, without any
deductions or setoff whatsoever, in the manner and at the place where minimum
rent is payable and Tenant's failure to pay rent shall carry with it the
consequences set forth under Article \'IX hereof. Landlord's rights and remedies
pursuant to this Section shall be in addition to any and all other rights and
remedies provided under this Lease or at law. Notwithstanding anything to the
contrary contained in this Lease, Landlord's
demand for any and all rent may be sent to Tenant by regular mail. Rent is
specifically agreed by Tenant to be a minimum reasonable use and occupancy
charge for the leased premises. In the event any sums required hereunder to be
paid are not received on or before the tenth (10th) day after the same are due,
then, for each and every such payment, Tenant shall immediately pay, as
additional rent, a service charge of five percent (5%) of the outstanding amount
due. In the event of Tenant's failure to pay the foregoing service charge,
Landlord may deduct said charge from the deposit set forth in Section 26.01
hereof. The provisions of this Section shall not be construed to extend the date
for payment of any sums required to be paid by Tenant under this Lease or to
relieve Tenant of its obligation to pay all such sums at the time or times
herein stipulated, and neither the demand for, nor collection by Landlord of,
late payment service charges pursuant to this Section shall be construed as a
cure of any default in payment by Tenant. It is agreed that the said service
charge is a fair and reasonable charge under the circumstances and shall not be
construed as interest on a debt payment. In the event any charge imposed
hereunder or under any other section of this Lease is either stated to be or
construed as interest, then no such interest charge shall be calculated at a
rate which is higher than the maximum rate which is allowed under the usury laws
of the State, which maximum rate of interest shall be substituted for the rate
in excess thereof, if any, computed pursuant to this Lease.
ARTICLE III. RECORDS AND BOOKS OF ACCOUNT
SECTION 3.01. TENANT'S RECORDS. 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 in the leased
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. The books and source documents to be kept by Tenant shall
include, without limitation, true copies of all State and local tax returns and
reports, records of inventories and receipts of merchandise, daily receipts from
all sales and other pertinent original sales records and records of any other
transactions conducted in or from the leased premises by Tenant and any other
persons conducting business in or from the leased premises. Pertinent original
sales records shall include without limitation: (i) cash register tapes,
including tapes from temporary registers, (ii) serially pre-numbered ~ (iii) the
original records of all mail and telephone orders at and to the leased premises,
(iv) settlement report sheets of transactions with subtenants, concessionaires,
licensees and assignees, (v) original records indicating that merchandise
returned by customers was purchased at the leased premises by such customers,
(vi) memorandum receipts or other records of merchandise taken out on approval,
(vii) detailed original records of any exclusions or deductions from Gross
Sales, (viii) sales tax records, and (ix) such other sales records, if any,
which would normally be examined by an independent accountant pursuant to
accepted auditing standards in performing an audit of Tenant's sales. Tenant
shall record at the time of each sale or other transaction, in the presence of
the customer, all receipts from such sale or other transaction, whether for
cash, credit or otherwise, in a cash register Landlord and which shall possess
such other features as shall be required by Landlord. All of the foregoing
books, source documents and records shall be retained for a period of at least
f.~(A) years after the expiration of each lease year.
SECTION 3.02. REPORTS BY TENANT. Tenant shall furnish to Landlord within
thirty (30) days after the expiration of each quarter-annual period of each
lease year a complete statement ("quarterly report"), certified by Tenant, of
the amount of Gross Sales, as defined in Article II, Section 2.03 of this Lease,
made in, on or from the leased premises during said period. Failure of Tenant to
timely submit quarterly reports as aforesaid shall entitle Landlord to estimate
Gross Sales based upon available data (with a reconciliation upon receipt of the
annual report), and Tenant shall be obligated to pay percentage rent, as set
forth in Section 2.02, on such estimated Gross Sales. Tenant also agrees that it
will furnish to Landlord within thirty (30) days after the expiration of each
full lease year a complete statement, certified by ~. showing in all reasonable
detail the amount of such Gross Sales made by Tenant from the leased premises
during the preceding lease year. Tenant shall in all events furnish to Landlord
within fi~\1/4~) days after the end of each month of the term of this Lease a
written statement of Gross Sales covering the preceding month, the statement to
be in such form and style and contain such details and breakdown as the Landlord
may reasonably require. Tenant shall require and cause all its concessionaires,
if any, to furnish statements at the times and in the form and content specified
in this Section, relating to their operations within the leased premises. All
reports of Gross Sales submitted or caused to be submitted by Tenant to Landlord
shall be conclusive and binding upon Tenant unless such reports are corrected
within two (2) years after the date of issuance. The term "concessionaire" as
used in this Lease shall mean and include any and all concessionaires,
licensees, franchisees, department operators, subtenants, permittees or others
directly or indirectly operating or conducting a business in or from the leased
premises.
ARTICLE IV. AUDIT
SECTION 4.01. RIGHT TO EXAMINE BOOKS. Notwithstanding the acceptance by
Landlord of payments of percentage rent, Landlord shall have the right to all
rents and other charges actually due hereunder, and the right to examine, make
extracts from and copy, at the leased premises or (at the option of~~~) at the
corporate headquarters office of Tenant in the United States, Tenant's and all
concessionaires' books, source documents, accounts, records and sales tax
reports filed with applicable government agencies in order to verify the amount
of Gross Sales in and from the leased premises. Tenant shall make all such
documents and records available at the leased premises (or at Tenant's corporate
headquarters, if elected by T~,,A1~j) upon ti'r~~(1) days' prior written notice
from Landlord.
SECTION 4.02. AUDIT. At its option, Landlord may at any time, upon A.~~\';)
days' prior written notice to Tenant, arrange for an auditor selected by
Landlord to conduct a complete audit (including a physical inventory) of the
entire records and operations of Tenant and/or any concessionaire concerning
business transacted upon or includable in Gross Sales from the leased premises
during the period covered by any statement issued by Tenant or a concessionaire
as above set forth in Article III. Tenant shall make available to Landlord's
auditor at the leased premises (or at Tenant's corporate headquarters, if
elected by ~ within ~ days following Landlord's notice requiring such audit, all
of the books, source documents, accounts and records referred to in Section 3.01
of this Lease and any other materials which such auditor deems necessary or
desirable for the purpose of making such audit. Tenant shall promptly pay to
Landlord the amount of any deficiency in percentage rent payments disclosed by
any such audit. If such audit shall disclose that Tenant's statement of Gross
Sales is ~ to the extent of "~p~-ti..~,'1~) or more, Landlord may xxxx to Tenant
the amount of any deficiency and the cost of such audit, which shall be paid by
Tenant within ten (10) days after Tenant's receipt of Landlord's invoice; in the
event Tenant fails to pay such discrepancy and costs, Landlord may terminate
this Lease as set forth below and/or shall have such other rights and remedies
as may be provided herein or at law arising by virtue of Tenant's failure to pay
rent. If such audit shall disclose that Tenant's statement of Gross Sales is ~
to the extent of or more then Landlord. 4n addition to the foregoing remedy and
other
remedies available to Landlord, shall have the option, upon at least ten (10)
days' notice to Tenant, to declare this Lease terminated and the term ended, 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 originally set forth herein and fixed for the expiration of
the term, and Tenant shall vacate and surrender the leased premises but shall
remain liable for all obligations arising during the balance of the original
stated term as provided in this Lease. In addition to the foregoing, and in
addition to all other remedies available to Landlord, in the event Landlord or
Landlord's auditor shall schedule a date for an audit of Tenant's records in
accordance with this Section, and Tenant shall fail to be available or shall
otherwise fail to comply with the requirements for such audit, Tenant shall pay
all costs and expenses associated
In addition to all other remedies available to Landlord, in the event that
any such audit shall disclose that Tenant's records and other documents as
referred to in Articles III and IV hereof and such other materials provided by
Tenant to Landlord's auditor are inadequate, in the opinion ~ Landlord's auditor
to accurately disclose Tenant's Gross Sales, then Landlord shall be entitled to
collect as additional rent from Tenant an amount equal to fifteen percent (15%)
of the highest Effective Rent (minimum rent plus percentage rent) payable by
Tenant in any of the three (3) preceding lease years. Landlord's exercise of the
foregoing remedy shall in no way limit or otherwise affect Landlord's ability to
exercise other remedies available to it, nor shall Tenant's obligations pursuant
to the terms, covenants and conditions of this Lease (including, without
limitation, Tenant's obligation with respect to reporting Gross Sales and
payment of percentage rent) be in any manner reduced or diminished by the
exercise of such remedy. In the event that Tenant shall, following the exercise
of such remedy, provide to Landlord all records and documentation as required to
be provided pursuant to the terms of this Lease so as to permit Landlord's
auditor to accurately establish Tenant's Gross Sales for the period in question,
then Tenant shall be permitted a credit with respect to any amount of additional
rent collected by Landlord from Tenant pursuant to this paragraph, with such
credit to be applied first against the installment of percentage rent due from
Tenant for the period in question, with any remaining credit to be applied
against the next installment of percentage rent payable by Tenant. Neither the
provisions of this Section 4.02 nor any other provisions in this Lease shall
restrict Landlord's rights to discovery in any litigation or arbitration
proceeding.
ARTICLE V. CONSTRUCTION OF LEASED PREMISES
SECTION 5.01. CONSTRUCTION OF LEASED PREMISES. (a) The leased premises
shall be constructed substantially as set forth in Exhibit B, which is attached
hereto and made a part hereof. Each of the parties hereto does hereby agree to
perform the obligations imposed upon such panty in said Exhibit B at the times
and in the manner therein provided. All references in the text of the Lease to
Exhibit B shall include Exhibit B-I. Minor changes from any plans or
specifications covering Landlord's Work which may be, or which may have been,
necessary or appropriate during construction of the Shopping Center or leased
premises shall not affect or change this Lease or invalidate same. If this Lease
is executed after the opening of the regional retail development or if the
leased premises are in an expansion wing of the regional retail development
which opened prior to the date of this Lease, the parties hereto acknowledge
that the work to be performed by Landlord pursuant to Exhibit B has been fully
performed (except to the extent specifically otherwise set forth in Exhibit B).
(b) Tenant agrees, prior to the commencement of the term of this Lease, at
Tenant's sole cost and expense, to provide all work of whatsoever nature in
accordance with its obligations set forth in Exhibit B as "Tenant's Work."
Tenant agrees to furnish to Landlord the Working Drawings and Specifications
(and Demolition Drawings, as applicable) with respect to the leased premises
prepared in the manner and within the time periods required in Exhibit B. If
such Working Drawings and Specifications (and Demolition Drawings, as
applicable) are not furnished by Tenant to Landlord within the required time
periods in form to permit approval by Landlord, then Landlord may at its option
at any time while Tenant is in default of this provision, in addition to any and
all other remedies provided in this Lease, by notice to Tenant declare this
Lease null and void and of no further force or effect, in which event this Lease
shall terminate, but Tenant shall remain liable for all obligations arising
during the original stated term as provided in this Lease. In addition, if
Landlord determines that Landlord and Tenant are unable to agree upon Working
Drawings and Specifications (and Demolition Drawings, as applicable), Landlord
shall have the option, upon notice to Tenant, to declare this Lease null and
void and of no further force or effect, in which event this Lease shall
terminate on the date specified in such notice, in the same manner as provided
in the preceding sentence. No deviation from the final set of plans and
specifications, once approved by the Landlord, shall be made by Tenant without
Landlord's prior written consent. Approval of the plans and specifications by
Landlord shall not constitute the assumption of any responsibility by Landlord
or Landlord's architect for their accuracy, efficacy or sufficiency, and Tenant
shall be solely responsible for such items. Tenant shall not open the leased
premises for business until all construction has been completed pursuant
to the provisions of Exhibit B. Until such time as Tenant's final Working
Drawings and Specifications (and Demolition Drawings, as applicable) have been
approved in writing by Landlord, the right of Tenant to enter upon the leased
premises shall be solely for the purpose of inspection, measurement and
obtaining information necessary to prepare architectural drawings and construct
its premises. Tenant shall not be deemed to have taken possession of the leased
premises until, and Landlord shall be deemed to have delivered and Tenant shall
be deemed to have taken such possession when, Tenant actually commences
construction of its leasehold improvements following Landlord's approval of
Tenant's final Working Drawings and Specifications (and Demolition Drawings, as
applicable). Until Tenant is so deemed to have taken possession, in the event of
a default by Tenant under this Article V, Landlord, upon notice to Tenant shall
have the right to declare this Lease null and void and of no further force or
effect and, thereafter may demise and lease the premises described in Section
1.01 free from any rights of Tenant. Tenant shall not open its store for
business until Tenant's storefront sign is installed, the store is fully
fixtured, lighted, stocked with merchandise in place and staffed, and Tenant is
prepared to engage in the sale of goods and/or services to the public pursuant
to Article VJI. Under no circumstances shall Tenant remove the storefront
barricade, unless Landlord shall specifically otherwise direct in writing.
Landlord shall remove the storefront barricade (or Tenant shall remove the same
if so directed in writing by Landlord) when Tenant is so prepared to open for
business as determined by Landlord, and Tenant shall reimburse Landlord for all
costs and expenses in connection with such removal (or Tenant shall pay for all
such costs and expenses directly (including transportation of the barricade to
storage in the regional retail development), if Tenant shall be directed by
Landlord to perform such removal). If all or any part of the leased premises
shall have been previously occupied, Tenant acknowledges that the Tenant's Work
described in Exhibit B has been initially performed by a tenant previously
occupying the leased premises and that Tenant accepts the leased premises in an
"as is" condition without representation by the Landlord or any person, firm or
corporation on behalf of Landlord as to the condition thereof. Tenant shall
submit Working Drawings and Specifications and Demolition Drawings showing the
work to be performed by Tenant to completely remodel and refurbish the leased
premises and, subject to Landlord's approval, will cause such work to be
performed prior to the commencement of the term of this Lease. All such
additional work and permitted alterations, repairs and improvements shall be in
accordance with the provisions of Exhibit B.
(c) Upon execution of this Lease, Tenant shall pay to Landlord, as a
reimbursement to Landlord for costs and expenses with respect to the leased
premises, the sum set forth in the Data Sheet as "Tenant Reimbursement to
Landlord." The payment of such sum by Tenant shall not in any manner reduce or
limit the obligation of Tenant for payment of other charges under this Lease,
including, without limitation, the charges set forth in the Exhibits attached
hereto.
SECTION 5.02. AVAILABILITY AND POSSESSION OF PREMISES FOR TENANT'S WORK.
(a) The leased premises shall be considered available to Tenant when Landlord
furnishes Tenant with a written notice to such effect (the "Notice of
Availability"). Upon receipt of such Notice of Availability, Tenant shall have
only limited access to the premises for purposes of inspection and measurement
verification. The Notice of Availability shall not constitute delivery of the
premises, and Landlord (or a current occupant of the premises) will retain
possession of the premises until delivery of possession is made to Tenant as
provided below. Landlord may furnish the Notice of Availability at any time
subsequent to Landlord's obtaining possession of the premises. If the leased
premises are presently occupied by another tenant, Landlord will not make the
premises available to Tenant until a date after Landlord regains possession of
the leased premises from the tenant presently occupying the same.
(b) Landlord covenants to deliver possession of the leased premises to
Tenant upon written approval by Landlord of Tenant's Working Drawings, but only
if said approval is subsequent to or simultaneous with a furnishing to Tenant of
a Notice of Availability. Upon receiving actual possession, Tenant shall have
access to the leased premises for all purposes set forth under this Lease.
(c) Upon delivery of possession, Tenant accepts the premises and
acknowledges that the premises are in the condition required by this Lease,
subject to all field conditions existing at the time of delivery of possession.
Failure of Landlord to deliver possession of the leased premises in the manner
and condition as provided for in this Lease will not give rise to any claim for
damages by Tenant against Landlord, or against Landlord's contractor, or permit
Tenant to rescind or terminate this Lease.
SECTION 5.03. LANDLORD'S AND TENANT'S OPTIONAL RIGHT OF CANCELLATION. If
for any reason the leased premises are not ready for Tenant's Work on the date
eighteen (18) months following the date of this Lease, then, for a period of
thirty (30) days thereafter, Tenant shall have the option, and for a period of
forty-five (45) days following such eighteen (18) month period, Landlord shall
have the option, of canceling and terminating this Lease by not more than sixty
(60) days' written notice, one to the other, and, in the event that either party
shall exercise such option, this Lease shall terminate with neither party being
liable to the other in damages or otherwise, and any money deposited pursuant to
Section 26.01 hereof shall be returned to Tenant. In the event that neither
Tenant nor Landlord gives such written notice of cancellation, then said options
shall be null and void and of no further force or effect, and this Lease shall
be considered as continuing in full force and effect. In addition, if another
tenant is presently in possession of the leased premises, and Landlord shall not
have delivered possession of the leased premises to Tenant by the lease
commencement date (as specifically identified in the Data Sheet), then Landlord
shall have the right to thereafter terminate this Lease at any time prior to
delivery of possession to Tenant by written notice to Tenant, with like result
as set forth in the first sentence of this paragraph. If as of the date of this
Lease the leased premises are (i) in a regional retail development, or in an
expansion wing of a regional retail development, which development or wing, as
applicable, has not initially opened for business to the public, or (ii)
presently occupied by another entity, then the foregoing eighteen (18) month
period under this Section 5.03 (and the four (4) year period set forth in
Section 5.04) shall be modified to commence as of (i) the currently projected
date of such initial opening, or (ii) the currently projected date of Landlord's
repossession of the leased premises from such present entity, as
applicable.
SECTION 5.04. ULTIMATE COMMENCEMENT DATE. Notwithstanding anything to the
contrary contained herein, if for any reason whatsoever (including without
limitation, excusable delay) the term of this Lease shall not have commenced
prior to such date as shall be four (4) years from the date of this Lease
(subject to extension as set forth in Section 5.03), then this Lease shall be
automatically terminated without further act of either party hereto, and the
parties hereto shall be released from all obligations hereunder.
ARTICLE VI. ALTERATIONS, CHANGES AND ADDITIONS
SECTION 6.01. INSTAL~ON BY TENANT. Tenant shall not make or cause to be
made any alterations, additions or improvements to the leased premises (for
example, but without limiting the generality of the foregoing, Tenant shall not
install or cause to be installed any signs, floor covering, interior or exterior
lighting, plumbing fixtures, shades, canopies or awnings, electronic detection
devices, antennas, mechanical, electrical or sprinkler systems, or make any
changes to the storefront) without the prior written approval of Landlord in
each instance. Tenant shall present to Landlord plans and specifications for
such work at the time approval is sought, in accordance with criteria and
procedures as provided in Exhibit B.
SECTION 6.02. REMOVAL BY TENANT. All alterations, additions, trade fixtures
and improvements made by Tenant shall be deemed to have attached to the
leasehold and to have become the property of Landlord upon such attachment. Upon
expiration or earlier termination of the term of this Lease, Tenant shall not
remove any of such alterations, additions, trade fixtures or improvements.
Landlord may, however, designate by written notice to Tenant those trade
fixtures which shall be removed by Tenant at the expiration or earlier
termination of the Lease, and Tenant shall promptly remove the same and repair
any damage to the leased premises caused by such removal. Landlord shall have
the right to padlock or otherwise secure the leased premises upon the expiration
or earlier termination of the term of the Lease. Landlord shall also have the
right, at any time during the term of this Lease, and upon expiration or earlier
termination of the term of this Lease, to immediately enter the leased premises
in order to remove any items which shall be determined by Landlord to be a
violation of existing health, safety, security or other similar codes or
regulations affecting or applicable to the leased premises or the regional
retail development. Landlord shall attempt to provide prior notification to
Tenant of such removal, subject to the then existing circumstances.
SECTION 6.03. CHANGES AND ADDITIONS. Landlord, for itself and for the
underlying lessor, if any, hereby reserves the right at any time, and from time
to time, to make alterations to, and to build additional Stories on the building
in which the leased premises are located, and to construct other buildings and
improvements in the regional retail development, including any modifications of
the common areas in connection therewith, to enlarge or reduce the Shopping
Center or the regional retail development, to add decks or elevated parking
facilities, and to sell or lease any part of the land comprising the regional
retail development, as shown on the site plan attached hereto as Exhibit A, for
the construction thereon of a building(s) to be occupied by a Department
Store(s) which may or may not be part of the regional retail development.
Landlord also reserves for itself and for the underlying lessor, if any, the
right at any time, and from time to time, to change, modify, or abolish any
temporary off-site utility or any storm sewer or retention pond system (if
applicable) serving the regional retail development. The purpose of Exhibit A is
to show the approximate location of the leased premises within the Shopping
Center and Landlord reserves for itself and for the underlying lessor, ,,,f any,
the right at any time to relocate, enlarge, or reconfigure the various
buildings, parking areas and other common areas on said site plan. Tenant hereby
consents to the exercise by Landlord of the rights set forth in this Section
6.03 and agrees that the exercise of such rights by Landlord or by the
underlying lessor, if any, shall not diminish Tenant's obligations under this
Lease.
ARTICLE VII. CONDUCT OF BUSINESS BY TENANT
SECTION 7.01. USE OF PREMISES. Tenant shall continuously use and occupy the
entire leased premises during the term of this Lease, which use and occupancy
shall be solely for the purpose of conducting the business specifically set
forth in the Data Sheet and for no other purpose or purposes. It is agreed that
the use specified in the Data Sheet has been, and is, a material inducement to
Landlord in entering into this Lease with Tenant, and that Landlord would not
enter into this Lease without this inducement. If any governmental license or
permit shall be required for the proper and lawful conduct of Tenant's business
or other activity carried on in the leased premises or if a failure to procure
such a license or permit might or would in any way affect Landlord or the
Shopping Center, then Tenant, at Tenant's expense, shall duly procure and
thereafter maintain such license or permit and submit the same for inspection by
Landlord. Tenant, at Tenant's expense, shall, at all times, comply with the
requirements of each such license or permit.
SECTION 7.02. OPERATION OF BUSINESS. Tenant shall be open for business and
operate continuously, during all days and hours established by Landlord, in all
of the leased premises during the entire term of this Lease, and shall conduct
its business at all times in a first class and reputable manner, maintaining at
all times -LII staff of employees and LIl .] -- ~1~T stock of merchandise.
Failure by Tenant so to be open for business and to operate shall entitle
Landlord, in addition to other remedies provided in this Lease, to mandatory
injunctive relief, and~~ give Landlord the right to erect a storefront barricade
in front of the leased premises at Tenant's expense, which barricade shall not
be removed except upon Landlord's prior written consent and with Tenant paying
the cost of such removal. The erection of such a barricade by Landlord shall not
be construed as a re-entry by Landlord into the leased premises or as an
acceptance by Landlord of any surrender of possession of the leased premises by
Tenant. In the event the maximum hours during which the Shopping Center (or any
separate part thereof) is legally permitted
to be open to the public are regulated by any lawful authority, then
Landlord shall be the sole judge of which days and hours shall be Shopping
Center business days and hours (and the days and hours applicable to any such
separate part). Tenant shall install and maintain at all times a display of
merchandise in the display windows, if any, of the leased premises and shall
keep the same well lighted during such hours as Landlord shall designate.
Tenant, at Tenant's expense, shall promptly comply witli all present and future
laws, ordinances, orders, ru~egul ations and requirements of all governmental
authorities having jurisdiction, affecting or applicable to the leased premises
or the cleanliness, safety, occupancy and use of the same, whether or not any
such law, ordinance, order, rule, regulation or requirement is substantial, or
foreseen or unforeseen, or ordinary or extraordinary, or shall necessitate
structural changes or ~ovements or interfere with the use and enjoyment of the
leased premises. Tenant shall not do or permit to e one in or about the leased
premises, or bring anything therein, which will in any way conflict with any
such law, ordinance, order, rule, regulation or requirement affecting the
occupancy or use of the leased premises or the regional retail development which
is or may hereafter be enacted or promulgated by governmental authorities, or in
any way obstruct or interfere with the rights of others, nor shall Tenant use or
allow the premises to be used for any improper, immoral or objectionable
purposes as determined by Landlord. Tenant shall not cause or permit the use,
generation, storage or disposal in or about the leased premises or the regional
retail development of any substances, materials or wastes subject to regulation
under any federal or state or local laws from time to time in effect concerning
hazardous, toxic or radioactive materials unless Tenant shall have received
Landlord's prior written consent, which Landlord may withhold or at any time
revoke in its sole discretion. Tenant shall comply with all federal, state and
local laws in effect from time to time prohibiting discrimination or segregation
by reason of race, color, creed, age, religion, sex or national origin. No
auction, liquidation, going out of business, fire or bankruptcy sales may be
conducted or advertised by sign or otherwise in the leased premises. Tenant
shall display and sell only first-quality, current-season merchandise and
Tenant's sales practices shall be in accord with standards and practices
generally acceptable in enclosed first-class, full-retail-price regional
shopping centers. Tenant shall be obligated to permit returns of merchandise and
shall allow cash refunds on such returns, except in connection with special
sales and close outs. Tenant shall not offer any goods or services which
Landlord determines, in its sole discretion, to be inconsistent~ the image of a
first-class, family-oriented regional retail development, nor shall Tenant
display or sell any goods containing portrayals which Landlord determines, in
its sole discretion, to be lewd, graphically violent or pornographic. Tenant
agrees that it will conduct its business in good faith, and will not do any act
tending to injure the reputation of the Shopping Center (or any part thereof) as
determined by Landlord. Tenant shall not sell or display any paraphernalia used
in the preparation or consumption of controlled substances. In the event
Landlord has approved Tenant's remaining open for business after normal Shopping
Center hours (and/or any hours applicable to that part of the Shopping Center
containing the leased premises), then such approval shall be conditioned upon
Tenant's paying for all additional costs incurred by Landlord as a result
thereof. Tenant shall not permit noise or odors in the leased premises which are
objected to by Landlord and, upon written notice from Landlord, Tenant shall
immediately cease and desist from causing such noise or odor, and failing of
which Landlord may deem the same a material breach of this Lease. Tenant shall
not permit the operation of any coin operated or vending machines or pay
telephones on the leased premises, other than in the areas reserved solely for
the use of Tenant's employees. Tenant shall not sell or display any merchandise
within r.'~~~\'i') of the storefront leaseline or opening unless such sale or
display shall be expressly approved on the Store Design Drawings or otherwise
approved by Landlord, in writing, except that Tenant shall be permitted to
display merchandise in the display windows, if any. Tenant shall not use the
areas adjacent to the leased premises for business purposes. Tenant shall not
store anything in service or exit corridors. Tenant agrees that all receiving
and ~elivery of goods and merchandise, and all removal of merchandise, supplies,
equipment, trash and garbage, and all storage of trash and garbage, shall be
made only by way of or in the areas provided therefor by Landlord Tenant shall
not use or permit the use of any portion of the leased premises as sleeping
quarters, lodging rooms, or for any unlawful purposes Tenant shall not install
any radio or television or other similar device exterior to the leased premises
and shall not erect any aerial on the roof or exterior walls of any building
within the regional retail development. Landlord may direct the use of all pest
extermination contractors at the sole cost and expense of Tenant and at such
intervals as Lanc;iord may require Failure of Tenant to employ the pest
extermination contractor designated by Landlord shall entitle Landlord to such
contractor with respect to Tenant's premises and Tenant shall reimburse Landlord
for the cost thereof. Landlord shall have the option to provide pest
extermination services for the Shopping Center or the regional retail
development or any part thereof, in which event Tenant shall pay to Landlord
Tenant's proportionate share of the cost of such service, with such
proportionate share to be calculated in the manner provided in Section 8.03 of
this Lease In ~e event that Tenant is permitted pursuant to this Lease to engage
in the sale of food and beverages from the leased premises, then Tenant shall:
(i) offer such food and beverages only pursuant to a menu approved by Landlord,
which shall not be changed without Landlord's prior written consent (which
consent Landlord may grant or withhold in its sole and absolute discretion),
(ii) serve its customers in containers or dishes and with utensils to be
approved by Landlord, subject to change by Landlord from time to time, (iii) be
solely responsible for prompt disposal within the premises of all trash, garbage
and debris, and (iv) inspect and maintain all grease traps, pans and hood
ventilators in good order, condition and repair, and shall contract for same if
and as required by Landlord. The covenants of Tenant regarding hazardous, toxic
or radioactive materials, as set forth in this Lease, shall survive the
expiration or earlier termination of the term of this Lease. Without limiting
any of the foregoing provisions, [DELETED] the leased premisesto be left
unattended at any time. In the event that the leased premises, at any time,
[DELETED] shall be left unattended, then, in addition to all other remedies
available to Landlord, Landlord shall have the right to terminate this Lease
upon ten (10) days' prior written notice to Tenant,
in which event this Lease shall terminate on the date specified in such
notice, but Tenant shall remain liable for all obligations arising during the
original stated term as provided in this Lease. If Landlord shall exercise such
termination right, Tenant shall have the right to vitiate such termination by
written agreement (entered into within such ten (10) day period) to increase the
minimum rent set forth in Section 2.01 hereof (as increased pursuant to other
provisions of this Lease) to three (3) times the amount otherwise required. In
the event of such vitiation, such increased rent shall become effective
immediately and shall continue in effect for the remaining term of the Lease
(subject to further increase pursuant hereto and pursuant to the other
provisions ofthis Lease), and Tenant [DELETED]
SECTION 7.03. RADIUS. During the term of this Lease, in the event Tenant,
its parent corporation or subsidiary corporation, or its franchisor or
franchisee, or its licensor or licensee, or any person, firm, corporation or
other entity who or which controls or is controlled by Tenant, or by any person,
firm, corporation or other entity which directly or indirectly controls or is
controlled by Tenant, shall, directly or indirectly, either individually or as a
partner or stockholder or otherwise, own, operate or become financially
interested in any business similar to or in competition with the business of
Tenant described in Section 7.01 within a radius often (10) miles from the
leased premises, then the Gross Sales (as defined in this Lease) of any such
business or businesses within said radius shall be included in the Gross Sales
made from the leased premises and the percentage rent hereunder shall be
computed upon the aggregate of the Gross Sales made from the leased premises and
by any such other business or businesses then conducted within said radius and
Tenant shall report and maintain records of such sales in the manner provided in
Article III hereof. This Section 7.03 shall not apply to any such business or
businesses open and being operated by Tenant within said radius as of the date
of this Lease as long as such business or businesses shall continue to be
operated in the same location(s) existing as of said~ If Tenant fails to make
payments required pursuant to this Section 7.03, Landlord or Landlord's
authorized representative or agent shall have the right at all reasonable times
during the term hereof and for a period of at least four (4) years after the
expiration of the term of this Lease, to inspect, audit, copy and/or make
extracts of the books, source documents, records and accounts pertaining to such
other business or businesses conducted within said radius, in accordance with
the provisions of Article IV hereof, for the purpose of determining or verifying
the additional rents due to Landlord pursuant to this Section. Moreover, in the
event Tenant fails to supply to Landlord sales records with respect to any such
sii~iilar or competing business, Landlord shall have the right to estimate the
sales for such businesses based upon Tenant's Gross Sales in the leased
premises, and the additional percentage rent generated from the inclusion of
such estimated sales and Tenant's Gross Sales shall be deemed additional rent to
be paid by Tenant in accordance with the provisions of Section 2.02 and 2.06 of
this Lease.
SECTION 7.04. STORAGE, OFFICE SPACE. Tenant shall such goods, wares and
merchandise as Tenant intends to warehouse, store and/or stock in the leased
premises only offer for sale at retail at, in, from or upon the leased premises.
This shall not preclude occasional emergency transfers of merchandise from the
other stores of Tenant, if any, not located in the Shopping Center. Tenant shall
use for office, clerical or other non-selling purposes only such space in the
leased premises as is from time to time reasonably required for Tenant's
business in the leased premises.
SECTION 7.05. CARE OF PREMISES. Tenant, at Tenant's expense, shall at all
times keep the leased premises (including the service areas adjacent to the
premises, display windows and signs) orderly, neat, safe, clean and free from
rubbish and dirt, and vermin, and shall store all trash, garbage and other solid
waste within the leased premises. Tenant shall not burn any trash or garbage at
any time in or about the regional retail development. Landlord may d.rect the
use by Tenant at Tenant's expense of all solid waste disposal contractors at
such intervals as Landlord may require. Landlord shall provide or contract for
any services or facilities for solid waste pickup or sewer cleaning, then enan
shall be obligated to use the same and shall pay a proportionate share of the
expense thereof within ten (10) days after being billed therefor. If Landlord
does not provide such services, Tenant shall arrange for the regular pickup of
all solid waste at Tenant's expense.
ARTICLE VIII. COMMON AREAS
SECTION 8.01. OPERATION AND MAINTENANCE OF COMMON AREAS. Landlord agrees to
cause to be operated and maintained during the term of this Lease all common
areas within the Shopping Center. The manner in which such areas and facilities
shall be operated and maintained, and the expenditures therefor, shall be at the
sole discretion of Landlord and the use of such areas and facilities shall be
subject to such regulations as Landlord shall make from time to time.
SECTION 8.02. USE OF COMMON AREAS. The term ~common area,' as used in this
Lease, shall mean (i) the following areas within the regional retail
development: parking areas and facilities as determined by Landlord
(collectively "parking facilities"), roadways, pedestrian sidewalks and
walkways, pedestrian plazas, pedestrian passage areas, driveways, public
transportation loading and unloading facilities, truckways, loading docks,
delivery areas, landscaped areas, community rooms, office facilities, the
enclosed Mall, berms, elevators and escalators and stairs and ramps and vertical
transportation facilities not contained within any leased premises, public
restrooms and comfort stations, service areas, service and fire and exit
corridors, passageways, retention ponds (if applicable), and other areas,
amenities, facilities and improvements provided by Landlord, (ii) those areas
within the regional retail development and areas adjacent to the regional retail
development which from time to time may be provided by the owners of such areas
for the convenience and use of Landlord, the tenants of the Shopping Center, the
owners and occupants of the Department Store Sites, and their respective
concessionaires, agents, employees, customers, invitees and all other licensees
and others entitled to the use thereof and (iii) any other facilities or areas,
whether within or outside the regional retail development, as may be designated
by Landlord from time to time. The use and occupancy by Tenant of the leased
premises shall include the use of the common areas in common with Landlord and
with all others for whose convenience and use the common areas have been or may
hereafter be provided by Landlord or by the owners of common areas not within
the Shopping Center, subject, however, to rules and regulations for the use
thereof as prescribed from time to time by Landlord or the owner of such common
area, including, without limitation, the right of Landlord to determine the
hours and mode of operation of the elevators, escalators and vertical
transportation facilities serving the Shopping Center, and including the right
of Landlord or such owner to impose parking charges, whether by meter or
otherwise, with respect to any parking facilities. In no event, however, shall
Tenant, its agents or employees, use the common areas for the display or sale of
merchandise. Without limiting the generality of the foregoing, Landlord may
include in common areas
those portions of the Shopping Center presently or hereafter sold or leased
to Department Stores, until the building thereon has been opened for business,
at which time there shall be withdrawn from the common areas those areas not
provided by the owner thereof for cornmon use. Tenant and its employees and
agents shall park their cars and other vehicles only in areas specifically
designated from time to time by Landlord for that purpose, and shall not in any
case park their vehicles in any private or non-public portions of the parking
facilities. Tenant covenants that it will enforce the parking by its employees
and agents in such designated~ and in only public areas. Automobile license
numbers of employees' and agents' vehicles shall be furnished by Tenant to
Landlord upon Landlord's request. In the event any vehicle is parked by Tenant
or by an employee or agent of Tenant in a private or non-public parking area or
in any portion of the parking facilities other than the area of such parking
facilities as shall be designated by Landlord, Tenant shall be obligated to pay
Landlord the sum of One Hundred Dollars ($100) per day for each such vehicle in
order to partially compensate Landlord for the loss of percentage rent arising
from the business lost to Tenant and to other tenants in the Shopping Center due
to the lack of available parking space in the said parking facilities, and
Landlord shall have the right to cause the vehicle to be towed to a location
designated by Landlord and Tenant shall be obligated to reimburse Landlord for
all towing charges. Similarly, Landlord shall have the right to cause any
vehicle to be towed if the parking charges, if any, or the per diem charge or
reimbursement due to Landlord hereunder, with respect to such vehicle have not
been paid; with any such vehicle to be towed to a location designated by
Landlord and with Tenant being obligated to pay all parking charges, fines and
towing charges imposed by Landlord with respect to such vehicles. Tenant further
agrees to hold harmless Landlord and defend Landlord, its agents and employees
against any and all claims of the employee, agent and/or owner of the vehicle
towed. Landlord shall have the further option of prohibiting Tenant and its
employees and agents from parking their cars or other vehicles in the parking
facilities, and the violation of such prohibition shall be subject to the same
provisions as set forth above. Landlord may at any time close temporarily any
common area to make repairs or changes, to prevent the acquisition of public
rights in such area, 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.
Tenant shall not provide, nor shall Tenant authorize any person or entity to
provide, valet or attendant parking~~~~ant's customers or others; Landlord shall
have the exclusive right, but shall not be obligated, to provide valet or
attendant parking at the regional retail development F!]R INSEBTS SECTION 8.03.
TENANT'S PRO RATA SHARE OF EXPENSES. agrees to pay to Landlord in the manner
hereinafter provided, but not more often than once each calendar month Tenant's
proportionate xxxxx, of (1) all costs and expenses of every kind and nature paid
or incurred by Landlord in operating, equipping, policing and protecting,
lighting, heating, air conditioning, providing sanitation and sewer and other
services, providing a music and public address system, insuring ~ sel
f-insurance and the payment of deductible amounts under insurance policies),
repairing, replacing and maintaining (i) the common areas and (ii) all xxx~'~gs
and roofs within the Shopping Center and (iii) all other areas, facilities and
buildings, including project offices, parking facilities, vertical
transportation facil;~ies, retention ponds (if applicable), and any and all
facilities and improvements connecting the regional retail development to
off-site buildings or areas, which are used in connection with the maintenance
and/or operation of, and whether located within or outside of, the regional
retail development ~ereinafter collectively referred to as 'project areas"),
such costs and expenses shall include, but shall not be limited to, the full
cost of: illumination and maintenance of regional retail development signs,
whether located on or off the regional retail development; holiday and seasonal
lighting, decorations and displays; refuse disposal, water, gas, sewage,
electricity and other utilities (without limitation), including any and all
usage, service, hook-up, connection, availability and/or standby fees or charges
pertaining to same, and including all costs associated with the provision,
maintenance and operation of any central telephone service for the regional
retail development; the operation, maintenance, repair and replacement of all or
any part of the parking facilities; snow removal, maintenance, operation, repair
and replacement of any and all roads (temporary or otherwise) servicing the
regional retail development, including, without limitation, any landscaping or
other work related to such roads, maintenance and operation of any temporary or
permanent utility, including a sewage disposal system, within or without the
regional retail development, built, operated and/or maintained for the specific
purpose of servicing the regional retail development, together with hook up or
connection fees and service charges; compliance with laws, rules, regulations
and orders of governmental authorities; maintenance for wooded areas, retention
ponds, lakes and shoreline area, (if applicable), cleaning, lighting, striping
and landscaping; curbs, gutters, sidewalks, drainage and irrigation ditches,
conduits, pipes and canals located on or adjacent to the regional retail
development; premiums and all other costs with respect to liability, casualty,
and property insurance, and compliance with insurance requirements; personal
property taxes, licensing fees and taxes; audit fees and expenses; supplies; the
cost and expense of supplying music to the regional retail development; all
costs and expenses of enforcing the rules and regulations established by
Landlord for the Shopping Center and handling of claims or other matters arising
from the operation of the regional retail development; real estate taxes and
assessments and substitutions and replacements thereof levied or assessed by
municipal, county, state, federal or other taxing or assessing authority
upon, against or with respect to the common areas, the project areas and/or the
land thereunder and the land on which the Shopping Center buildings are located,
and all property (including any land upon which may be located any temporary or
permanent utility, including a sewage disposal system, within or without the
regional retail development built, operated and/or maintained for the purpose of
servicing the regional retail development) provided by Landlord which may at any
time comprise or serve the Shopping Center, whether located on or off the site
of the Shopping Center, irrespective of whether the same is taxed or assessed as
real or personal property; cost, lease payment or depreciation of any equipment,
improvements or facilities used in the operation or maintenance of the common
areas or project areas, including, without limitation, any imputed interest as
may be applicable to costs paid or incurred by Landlord the full amount of which
is not included under this Section 8.03 in the year so paid or incurred, and
including any interest or other expense associated with any loans obtained by
Landlord with respect to any cost or expense included or includable hereunder,
including any portion of the long-term debt on the Shopping Center which has
been incurred for such purposes; total compensation and benefits
(including_premiums for workers' compensation or any
other insurance or other retirement or employee benefits, and including all
costs incurred in providing such benefits) paid to or on behalf of employees
involved in the performance of the work specified iii this Section 8.03 or
employees otherwise providing services to tenants or customers of the Shopping
Center; and (2) an amount equ~~~fifteen percent (15%) of the total of all of the
foregoing costs and expenses for the regional retail development. The
proportionate share to be paid by Tenant shall be that portion of the foregoing
costs and expenses which the number of square feet of floor area in the leased
premises bears to the total number of square feet of gross leased and occupied
floor area of all buildings in the Shopping Center abutting on the enclosed
Mall. The gross leased and occupied floor area in effect for the whole of any
lease year shall be the average of the gross leased and occupied floor area in
effect on the first day of each calendar month in such lease year.
Tenant's proportionate share of such costs and expenses for each Sr(lt ~
~ltl(pound)B ~t]13 ~~SEBTS lease year shall be paid in monthly installments on
the first day of each calendar month, in advance, in an amount estimated by
Landlord from time to time. Subsequent to the end of each calendar or fiscal
lease year (at Landlord's option), Landlord shall furnish Tenant with a
statement of the actual amount of Tenant's proportionate share of such cost and
expenses for such ~od.If the total amount paid by Tenant under tills Section for
any such year shall be less than the actual amount due fF~~T~nant for such year
as shown on such statement, Tenant shall pay to Landlord the difference between
the amount paid by Tenant and the actual amount due, such deficiency to be paid
within ten (10) days after the furnishing of each such statement, and if the
total amount paid by Tenant hereunder for any such year shall exceed such actual
amount due from Tenant for such year, such excess shall be credited against the
next installment due from Tenant to Landlord under this Section. Land lord may
estimate the annual budget and charge the estimated share to the Tenant on a
monthly basis subject to revision by Landlord of the budget from time to time
and final annual adjustment based upon actual expenses. Neither the provisions
of this Section, nor any of the othe~ requirements or restrictions imposed upon
Tenant under this Lease, shall excuse Tenant from its obligation to comply with
laws and ordinances and other governmental requirements as set forLh in Section
7.02 hereof.
ARTICLE IX. SIGNS
SECTION 9.01. SIGNS. Tenant shall affix a sign to the exterior surface of
the storefront of the leased premises fronting on the enclosed Mall and shall
maintain said sign in good condition and repair during the entire term of this
Lease. Said sign shall conform to the criteria for signs contained in Exhibit B,
and the size, content, design and location thereof shall be subject to the prior
written approval of Landlord. Except as hereinabove mentioned, Tenant shall not
place or cause to be placed, erected or maintained on any exterior door, wall,
window or the roof of the leased premises, or on the glass of any window or door
of the leased premises, or on any sidewalk or other location outside the leased
premises, or within any display window space in the leased premises, or within ~
feet of the front of the storefront ~easeline or opening, whether or not there
is a display window space in the leased premises, or within any entrance to the
leased premises, or otherwise visible from the Mall, any sign (flashing, moving,
hanging, handwritten, or otherwise), decal, placard, decoration, flashing,
moving or hanging lights, lettering, or any other advertising matter of any kind
or description. Moreover, Tenant is prohibited from utilizing any displays which
are not part of the fixture plan approved in writing by Landlord for the leased
premis~ If Tenant places or causes to be placed or maintained any of the
foregoing, the same may be removed by an ord or Landlord's representative
without notice and without such removal constituting a breach of this Lease or
entitling Tenant to claim damages on account thereof. No symbol, design, name,
xxxx or insignia adopted by Landlord for the Shopping Center shall be used
without the prior written consent of Landlord. No illuminated sign locat~d in
the interior of the leased premises and which is visible from the outside
thereof shall be permitted without the prior written approval of Landlord. All
signs located in the interior of the leased premises shall be in good taste and
professionally printed so as not to detract from the general appearance of the
leased premises and the Shopping~
ARTICLE X. MAINTENANCE
SECTION 10.01. LANDLORD'S OBLIGATIONS FOR MAINTENANCE. Landlord shall keep
and maintain the_exterior surfaces of the exterior walls of the building in
which the leased premises are located (exclusive of doors, door frames, door
checks, other entrances, windows and window frames which are not part of common
areas, and storefronts) in good repair, except that Landlord shall not be called
upon to make any such repairs occasioned by the act or negligence of Tenant, its
agents, employees, invitees, licensees or contractors. Landlord shall not be
called upon to make any other improvements or repairs of any kind upon the
leased premises and appurtenances, except as may be required under Articles XVII
and XVIII hereof, and nothing contained in this Section 10.01 shall limit
Landlord's right to reimbursement from Tenant for maintenance, repair costs and
replacement costs conferred elsew here in ~ Lease. ~r:: f~lATL'h:E~ ~ SECTION
10.02. TENANT'S OBLIGATIONS FOR MAINTENANCE. (a) Except as provided in Section
10.01 of this Lease, Tenant, at Tenant's expense, shall keep and maintain in
first-class appearance, in a condition at least equal to that which existed when
Tenant initially opened the leased premises for business, and in good order,
condition and repair as determined by Landlord (including replacement of parts
and equipment, if necessary) the leased premises and every part thereof and any
and all appurtenances thereto wherever located, including, but without
limitation, the interior surfaces of the exterior walls, the exterior and
interior portion of all doors, door frames, door checks, other entrances,
windows, window frames, plate glass, storefronts, all plumbing and sewage
facilities within the leased premises, including free flow up to the main sewer
line, fixtures, ventilation, heating and air conditioning and electrical systems
(whether or not located in the leased~ses, sprinkler systems, walls, floors and
ceilings, and all other
repairs, replacements, renewals and restorations, interior and exterior,
ordinary and extraordinary, foreseen and unforeseen, and all other work
performed by or on behalf of Tenant pursuant to the exhibits attached hereto or
Articles V or VI hereof or otherwise in accordance with the provisions of this
Lease. Tenant shall remodel the leased premises as required in Exhibit B.
Tenant shall keep and maintain the leased premises in a clean, (1))
sanitary and safe condition in accordance with the laws of the State and in
accordance with all directions, rules and regulations of the health officer,
fire xxxxxxxx, building inspector, or other proper officials of the governmental
agencies having jurisdiction, and Tenant shall comply with all requirements of
law, ordinances and otherwise, affecting the leased premises, all at the sole
cost and expense of Tenant. At the time of the expiration or sooner termination
of the tenancy created herein, Tenant shall surrender the ~premises in good
order, condition and expenses.
(c) Tenant shall keep the leased premises and all other parts of the
regional retail development free from any and all liens arising out of any work
performed, materials furnished or obligations incurred by or for Tenant, and
agrees to bond against or discharge any such lien (including, without
limitation, any construction, mechanic's or materialman's lien) within.-'- days
after written request therefor by Landlord. Tenant shall give Landlord at least
fifteen (15) days' notice prior to commencing or causing to be commenced any
work on the leased premises (whether prior or subsequent to the commencement of
the lease term), so that Landlord shall have reasonable opportunity to file and
post notices of non-responsibility for Tenant's work. In addition, prior to
commencing or causing to be commenced any work on the leased premises, Tenant
shall file a Notice of Commencement (or other similar instrument limiting lien
rights related to Tenant's Work) as provided by applicable statutory provisions
and shall deliver a copy of such Notice of Commencement (or similar instrument)
to Landlord. Tenant shall reimburse Landlord for any and all costs and expenses
which may be incurred by Landlord by reason of the filing of any such liens
and/or the removal of same, such reimbursement to be made within ten (10) days
after written notice from Landlord to Tenant setting forth the amount of such
costs and expenses.
(d) Tenant, at its own expense, shall install and maintain fire
extinguishers, other fire protection devices as may be required from time to
time by any agency having jurisdiction thereof. Should Landlord's insurance
carrier require that Tenant's fire protection system be modified, Tenant shall
make such modification at its sole expense within thirty (30) days after notice
in writing ~ Failure of Tenant to do so shall entitle Landlord to enter the
leased premises and make such modification at the expense of Tenant. Tenant
shall pay all charges billed by Landlord within ten (10) days after invoice
Tenant shall also be liable for any additional insurance premiums assessed to
Landlord relating to the
(e) (1) Tenant agrees to operate its heating and its ventilating and air
conditioning system(s) serving the leased premises during regular Shopping
Center business hours so as to maintain comfort conditions. Temperatures in the
leased premises shall be compatible with temperatures in the enclosed Mall.
Tenant's installation of its heating and ventilating and air conditioning system
shall be as set forth in Exhibit B, attached hereto and made a part hereof.
Tenant shall be fully obligated for its maintenance and repair. Tenant shall not
drain heat or ventilation or air conditioning from the enclosed Mall into the
leased premises and Tenant shall at all times maintain adequate temperatures
within the leased premises to prevent any such drainage; likewise, Tenant shall
not discharge air from the leased premises into the enclosed Mall or other
interior areas. Landlord shall not be obligated to Tenant for any damages or
cost or expense resulting, directly or indirectly, from any failure or
malfunction of any air conditioning supply system or condenser water system
serving the Shopping Center or any component parts of any such system.
(2) To the extent the leased premises shall be serviced by a central air
conditioning or condenser water system, Tenant's obligation for connecting to,
and all charges for, the central system, as well as Tenant's installation,
operation and maintenance of its heating and ventilating and air conditioning
portion of the system shall be as set forth in Exhibit B (and any separate
exhibit relating to such central system) attached hereto and made a part hereof.
Landlord shall not be obligated to Tenant for any damages or cost or expense
resulting, directly or indirectly, from any failure or malfunction of the
central air conditioning supply system (or central condenser water system, as
applicable) or any component parts thereof Tenants approved by Landlord for the
installation of a separate heating, ventilating and air conditioning system,
serving the leased premises, shall construct the same in accordance with
Landlord's criteria. If Tenant shall install such a system, Tenant shall be
fully obligated for its maintenance and repair.
(f) Tenant expressly waives all rights to make repairs at the expense of
Landlord as provided for in any statute or law in effect during the term of this
Lease.
(g) In the event that Tenant fails, refuses or neglects to commence and
complete
repairs promptly and adequately, to remove any lien, to pay any cost or
expense, to reimburse Landlord, or otherwise to perform any act or fulfill any
obligation required of Tenant pursuant to this Section 10.02, Landlord ma but
shall not be required to, make or complete any such repairs, remove such lien
(without inquiring into the vali~thereof), pay such cost or perform such act or
the like without ~- notice to, but at the sole cost and expense of, Tenant, and
Tenant shall reimburse Landlord for all costs and expenses of Landlord thereby
incurred within ten (10) days after receipt by Tenant from Landlord of a
statement setting forth the amount of such costs and expenses. The failure by
Tenant so to make repairs, to remove any lien, to pay any such cost or expense,
or to so reimburse Landlord (in the case of reimbursement, within such ten-day
period) shall constitute a default by Tenant under this Lease and shall carry
with it the same consequences
ARTICLE XI. INSURANCE AND INDEMNITY
SECTION 11.01. TENANT'S INSURANCE (a) [UNREADABLE]
(b) [UNREADABLE]
(c) [UNREADABLE]
(d) [UNREADABLE]
(e) Tenant shall not carry any stock of goods or do anything in or about
the leased premises which will in any way tend to increase the insuran~e rates
on the Shopping Center, the regional retail ~evelopment, the leased premises
and/or the building of which they are a part and/or the contents thereof. If
Tenant installs any electrical equipment that overloads the lines in the leased
premises, Tenant shall at its own expense make whatever changes are necessary to
comply with the requirements of the insurance underwriters and governmental
authorities having jurisdiction.
SECTION 11.02. LANDLORD'S INSURANCE. (a) Landlord agrees, during the term
hereof, to provide, to the extent the same is available from Landlord's
insurance carrier, in amounts and coverages determined by Landlord, with or
without deductibles, insurance coverage against such risks as are from time to
time included in a standard extended coverage endorsement, insuring the
improvements to the leased premises provided by Tenant pursuant to this Lease
(exclusive of Tenant's merchandise, trade fixtures, furnishings, equipment,
plate glass, signs and personal property of Tenant). Landlord may also carry at
its option special extended coverage endorsements and other special insurance
coverage (including, without limitation, earthquake coverage). Tenant shall
submit to Landlord an itemized statement setting forth the cost of such
improvements promptly after completion thereof and Tenant shall provide to
Landlord, within thirty (30) days after the end of each lease year of the term
hereof, a written appraisal of the then current replacement value of the
leasehold improvements to the leased premises, which appraisal shall be
certified by an independent insurance appraiser. In the event Tenant fails to
provide such itemized statement or any such appraisal, Landlord shall have the
right to estimate the value of said improvements, which estimate shall be
binding upon Tenant Tenant agrees to pay Landlord for the total cost of so
insuring such improvements, including, without limitation, the payment of all
applicable deductible amounts, such payments (other than deductible amounts) to
be made in equal monthly installments on the first day of each calendar month,
in advance, in an amount estimated by Landlord; provided, however, that Landlord
may elect to xxxx Tenant for such costs on a basis less frequent than monthly.
Deductible amounts shall be paid by Tenant upon notice from Landlord. Subsequent
to the receipt by Landlord of an invoice for such insur.ince premium, Landlord
shall furnish Tenant with a written statement setting forth such cost. If the
total amount paid by Tenant under this Section for any calendar, lease or fiscal
year (at Landlord's option) shall be less than the actual amount due from Tenant
for such year as shown on such statement, Tenant shall pay to Landlord the
difference between the amount paid by Tenant and the actual amount due, such
deficiency to be paid within thirty (30) days after the furnishing of each such
statement, and if the total amount paid by Tenant hereunder for any such
calendar year shall exceed uch actual amount due from Tenant for such calendar
year, such excess shall be credited against the next ~ due from Tenant to
Landlord under this Section 11.02. SEE ATTAT~~E~ ~I!)E~ ~ I~SEBTS (0) Landlord
agrees, during the term hereof, to carry rent interruption insurance, which
insurance may be carried in amounts equal to Tenant's total minimum rent
obligation for twelve (12) full months (or such other period as Landlord may
elect) under this Lease p~us the total of the estimated costs to Tenant of
taxes, assessments, insurance ~remiums and common area maintenance costs for
such twelve (12) month period (or such other period as Landlord may elect)
Tenant agrees from time to time, to reimburse Landlord for the total cost of
such insurance, such reimbursement to be made within ten (10) days after receipt
of a written statement from Landlord setting forth such cost
(c) Any insurance required of Landlord hereunder may be furnished by or for
Landlord under any blanket policy carried by or for Landlord or under a separate
policy therefor. The cost of the foregoing insurance under this Section 11.02 is
a part of the cost of the property insurance which may be included in the costs
and expenses Set forth in Section 8.03 hereof To the extent that the foregoing
insurance costs shall be so included under Section 8.03 and Tenant shall pay its
proportionate share of costs and expenses pursuant to said Section 8.03, such
insurance costs ~hall not be separately charged to Tenant under this Section
11.02. lNS(pound)~
SECTION 11.03. COVENANT TO HOLD HARMLESS. Tenant ~ Landlord, the underlying
lessor, if any, and their respective officers, ~ors, stockholders,
beneficiaries, partners, representatives, agents and employees, and save them
harmless (except for loss or damage resulting solely from the negligence of
Landlord and not required to be insured against by Tenant pursuant to this
Article XI) from and against any anu all claims, actions, damages, liability,
cost and expense, including attorneys' fees, in connection with all losses,
including loss of life, personal injury and/or damage to property, arising from
or out of any occurrence in, upon or at the leased premises or the occupancy or
use by Tenant of the leased premises or any part thereof, or arising from or out
of Tenant's failure to comply with any provision of this Lease or occasioned
wholly or in part by any act or omission of Tenant, its concessionaires, agents,
contractors, suppliers, employees, servants, customers or licensees. For the
purpose of this Section 11.03, the leased premises shall include the service
areas adjoining the same and the loading platform area allocated to ~use of
Tenant~the parking facilities servicing the Shopping Center. In case Landlord or
any other party so indemnified shall, without fault, be made a party to any
litigation commenced by or against Tenant, or if Landlord or any such party
shall, in its sole discretion, determine that it must intervene in such
litigation to protect its interest hereunder, including, without limitation, the
incurring of costs, expenses, and attorneys' fees in connection with relief of
Tenant ordered pursuant to the Bankruptcy Code (11 USC ~ 101 ~ seci.), then
Tenant shall protect and hold them harmless by attorneys satisfactory to
Landlord and shall pay all costs, expenses and reasonable attorneys' fees
incurred or paid by such party in connection with such litigation. Landlord
shall have the right to engage its own attorneys in connection with any of the
provisions of this Section 11.03 or any other provision of this Lease,
including, without limitation, any defense of Landlord or intervention by
Landlord, notwithstanding any contrary provisions or court decisions of the
State The foregoing provisions of this Section shall survive the expiration or
earlier termination Cf the term of this Lease. _________ _____
SECTION 12.01. UTILITY CHARGES. (a) Tenant shall be solely responsible for
and shall promptly pay all necessary fees, deposits and charges, including use
and/or connection fees, hook-up fees, standby fees, and/or penalties for
discontinued or interrupted service, and the like, for water, gas, heat,
electricity, centrally conditioned cold air supply, sewer and sanitation, solid
waste disposal and any other service or utility used in or upon or furnished to
the leased premises, irrespective of whether Landlord has paid for these
services in advance, or otherwise. Landlord, at its sole option, may elect to
furnish any or all of the above services on a "rent inclusion basis" without
separate charge therefor to Tenant, by metering or otherwise, such charge to be
included in the minimum rent payable hereunder, in which event the minimum rent
specified in Section 2.01 shall be increased to reflect the value of such
service(s) as provided in paragraph (h) below. Alternatively, Landlord, at its
sole option, may provide for any or all of such services on a separate-charge
basis, and in such event Tenant shall purchase such service(s) from Landlord,
and within ten (10) days after Landlord bills Tenant for any such service Tenant
shall pay Landlord such rates, charges and fees, upon terms and conditions as
Landlord may establish; provided that, if the rates, charges or fees for any
such service are regulated by a public agency, the rates, charges and/or fees to
Tenant shall be computed using the maximum rate schedules which would be
applicable if Tenant were at the time a direct customer of the applicable public
utility corporation. If the cost of any such service for any month has not been
made known to Landlord at the time of billing, Landlord shall have the right to
estimate the amount thereof, and to base its billing to Tenant upon said
estimated amount, and Landlord may adjust such billing when the actual amount is
made known to Landlord. Landlord shall also have the right to periodically
estimate the monthly amount required to be paid by Tenant to Landlord with
respect to any or all of such services provided by Landlord and such estimated
monthly amount or amounts shall be paid by Tenant on the first day of ~ch
calendar month, in advance, at the place and in the manner specified for
payments of minimum rent hereunder. Landlord shall have the right to change such
estimated amount or amounts at any time and from time to time, by notice to
Tenant. If the total of the estimated monthly payments made by Tenant for any
lease year or calendar year shall be less than the actual amount due from Tenant
pursuant to the provisions of this Section, Tenant shall pay to Landlord the
difference between the amount paid by Tenant and the actual amount due within
ten (10) days after submission to Tenant of Landlord's statement and invoice
therefor; and if the total of the estimated payments made by Tenant for any such
year shall exceed the actual amount due from Tenant, the excess amount paid
shall be credited against the next payment due from Tenant to Landlord under
this Section. Landlord, at its sole option, may require Tenant to install
separate, appropriate meters for measuring Tenant's consumption of water,
electricity or the like, and may require Tenant to remove any or all such meters
upon Landlord's discontinuing the service in question to Tenant. The failure by
Tenant to pay when due any amount payable to Landlord under this Section 12.01
shall carry with it the same consequences as failure to pay any installment of
rent when due. Notwithstanding the foregoing, if a separate exhibit describing
applicable rates for a utility service is attached to this Lease, Tenant shall
pay for such service pursuant to such exhibit
(b) In the event Landlord furnishes electricity on a rent inclusion basis
as provided above, at such time as Tenant's lighting and electrical equipment
has oeen completely installed, Landlord may, at Landlord's sole option (and to
the extent permitted by applicable regulations), cause a survey of Tenant's
usage of electricity to be made by an independent electrical consultant selected
by Landlord. The consultant shall render a report to Landlord and Tenant showing
the estimated amount of electricity which Tenant will consume, the value
thereof, and the minimum rent reserved hereunder shall thereupon be increased to
reflect such value. Tenant shall promptly pay to Landlord the difference between
the minimum rent hereunder and the increased minimum rent as so determined for
all months of the term of this Lease ,, hich have therefore elapsed, and each
monthly installment of rent thereafter paid by Tenant shall be based upon such
increased rent. Subject to applicable utility regulations, each party to this
Lease shall thereafter have the right whenever such party believes there has
been a material increase or decrease in Tenant's regular usage of electric
current (that is, a change therein other than on a temporary basis) to request,
by notice to the other party, a redetermination of the fair rent value of the
electric service then furnished by Landlord. When any such request occurs, the
redetermination shall be made as promptly as possible by an independent
electrical consultant selected by Landlord, and, based upon its report, the
minimum rent theretofore required to be paid hereunder shall thereafter be
adjusted to reflect such new fair rent value. Any change or adjustment in such
report shall be binding on both Landlord and Tenant. It is agreed that the cost
of conducting the redetermination shall be borne solely by the party requesting
same. Tenant agrees, on request of Landlord, to execute and deliver from time to
time a supplement to this Lease, setting forth the new minimum rent, as then
determined as above provided. After the making of the initial survey referred to
above, Tenant shall not without prior written notice to Landlord make any
alterations in or additions to the electrical equipment and/or appliances in the
leased premises. Tenant shall promptly execute a separate utility letter or
utility agreement if requested by Landlord or by the applicable utility company.
(c) Any furnishing by Landlord of electric current to the leased premises
shall be limited to the extent of the cap~ity of Landlord's existing feeders,
switches, risers, wiring installations and other electrical system serving the
leased premises (the "electric distribution system"). Tenant agrees that
Tenant's use of electrical current will at no time exceed the capacity of the
electric distribution system, and that Tenant will not make any alteration or
addition to the electric distribution system without Landlord's prior written
consent in each instance.
(d) In the event that, at any time during the term of this Lease, Tenant
desires to connect or install any additional electric fixtures, equipment or
appliances to the electric distribution system and such fixtures, equipment or
appliances require additional electric current which, in combination with
Tenant's existing electrical requirements exceeds the capacity of the electric
distribution system, then, provided that Landlord shall have consented in
writing to such connections or installations, Landlord, upon the written request
of Tenant and at the sole cost and expense of Tenant, will
services and personnel so provided shall be under the exclusive control and
supervision of Landlord, who shall have the sole authority to employ and
discharge personnel and to establish a budget. Tenant agrees to pay to Landlord,
as Tenant's share of the cost of said advertising and promotional program, an
annual promotional charge which originally shall equal the amount as shown in
the Data Sheet for this Lease, which annual promotional charge shall, at
Landlord's option, be payable by Tenant in equal monthly installments at the
time and in the manner set forth for rent payments in this Lease However, such
annual promotional charge payable by Tenant will be adjusted commencing January
1st immediately succeeding the commencement date of the term of this Lease and
annually thereafter, by a percentage equal to the percentage increase from the
base period of the Index (as defined in Section 27.20) to the respective January
1st or the closest month thereto that the Index is published (0ut in no event
shall Tenant pay less than the original promotional charge as specified above).
The term "base period" shall refer to the month of adjustment in such annual
promotional charge closest to and prior to the date of commencement of the term
of this Lease (i.e., the most recent month prior to the commencement date during
which such promotional charge has been adjusted), or the date of the opening ot
the Shopping Center, whichever of such dates shall be the later to occur. In
addition to this cost of living adjustment, such annual promotional charge may
be increased from time to time by Landlord to the extent required by increases
in the costs of promotional, public relations or advertising services provided
pursuant to this Section (including, without limitation, changes in costs
arising from variations in the type, nature or extent of such services) Tenant
also agrees to pay to Landlord, within ten (10) days after demand therefor, an
initial promotional charge in the amount set forth in the Data Sheet in addition
to the foregoing promotional charges The various promotional charges set forth
in this Section 16 03 and in the Data Sheet shall be increased as of the
commencement date of the Lease to reflect the then current charges per square
foot for Shopping Center tenants
(0) Landlord reserves the right at any time to cease providing promotional
services and to cause a Merchants' Association to be formed. Upon the formation
of the Association, Landlord will turn over to the Association any funds in its
possession, collected from tenants as promotional charges, not spent or required
to discharge indebtedness, and less Landlord's compensation due under Section
16.03 (a). Thereupon, Landlord shall be relieved of any and all liability to
Tenant in connection with such advertising and promotional services. Upon
formation of the Association, Tenant shall become a member thereof and will
maintain membership in good standing and will abide by the regulations and
cooperate in the activities of such Association throughout the term of this
Lease and any extensions or renewals thereof. The purpose of the Merchants'
Association shall be to encourage its members to deal fairly and courteously
with their customers, to follow ethical business practices, and to assist the
business of its members by sales promotions and centerwide advertising. If
Landlord shall elect to provide promotional services and personnel to formulate
and effect an advertising, promotional and public relations program for the
Shopping Center, Landlord shall be reimbursed by the Nierchants' Association for
Landlord's cost of providing such promotional services and personnel, in an
amount Lqual to twenty-five percent (25%) of the annual dues payable to the
Merchants' Association Any promotional services and (pound)ersonnel so provided
shall be under the exclusive control and supervision of Landlord, who shall have
the sole authority to employ and discharge such personnel. The provisions of
this Section 16.03 shall be deemed to be covenants for the benefit of Landlord
and said Association as and when formed, and may be enforced by either of them
as binding obligations of Tenant Tenant's obligation for payment of dues to the
Association shall be the same sum per month as Tenant was obligated to pay for
promotional service prior to the formation of the Association, subject, however,
to annual adjustments approved by the Board of Directors of the Association
increasing said dues to the extent required by increases in the costs of
promotional, public relations and advertising services (including, without
limitation, changes in costs arising from variations in the type, nature or
extent of such services). In addition, the cost of living adjustment referred to
in Section 16.03(a) above with respect to Tenant's monthly payment to Landlord
for promotion services shall also apply in the same manner to the Merchants'
Association dues. In the event that such a Merchants' Association shall be in
operation as of the date of this Lease, the parties hereby acknowledge the
present application of this Section 16 03(0) ~ ciati~n (c) Landlord reserves the
right, at any time, to dissolve any ~ to provide, or cause to be provided, a
program of advertising and promotional events which, in Landlord's sole
judgment, will serve to promote the regional retail development In the event any
such program is so established, it shall be governed by the provisions of
Section 16.03(a) hereof, and Tenant's obligations shall be as set forth therein
(d) All recurring payments, charges, dues and assessments (other than the
initial assessment) payable under this Section 1603 shall be due in m(~nthly
installments on the first day of each month during the term of this Lease, and
all such items, and the initial assessment, shall be paid without deduction or
offset. Fa~ure by Tenant to pay all amounts when due shall carry with it the
same consequences under Article XIX hereof as Tenant's failure to pay rent
ARTICLE XVII. DESTRUCTION OF LEASED PREMISES
SECTION 17.01. RECONSTRUCTION OF DA~~GED PREMISES. In the event the leased
premises shall be partially or totally destroyed by fire or other casualty
insured under the insurance carried by Landlord pursuant to Section 11.02 of
this Lease_____________~ ~ then the damage to the leased premises shall be
promptly repaired (unless Landlord shall elect not to rebuild as hereinafter
provided), and the minimum rent and (to the extent covered by the insurance
carried by Landlord under Section 11 02(0)) other charges payable by Tenant to
Landlord (to the extent that such charges are based upon the square foot area of
the leased premises) shall be abated in proportion to the floor area of the
leased premises rendered untenantable, and the Minimum Gross Sales above which
percentage rent is computed and payable shall likewise be proportionately
reduced. Payment of full rent and all other charges so abated shall commence and
Tenant shall be ob1i~ated tp reopen for business on the thirtieth (30th) day
following the date that Landlord advises Tenant that the premises are
tenantable, unless Tenant opens at an earlier time in the damaged area or
remains open in such area following destiruction or damage, in which event there
shall be no abatement or any such abatement shall terminate as of the date of
Tenant's earlier reopening. If Landlord shall elect to cause Tenant to make the
necessary repairs to the leased premises, as provided below, payment of full
rent and all cther charges so abated shall commence and Tenant shall be
obligated to reopen for bu~iness on the ~ day following the date that Landlord
advises Tenant of Landlord's election for Tenant to perform such work. Landlord
shall be obligated to cause such repairs to be made unless Landlord, at its sole
option, elects to cause Tenant to make such repairs, in which event Tenant shall
promptly complete the same and Landlord will make available to Tenant for the
sole purpose of reconstruction of Tenant's improvements such portion of any
insurance proceeds received by Landlord from its insurance carrier, under a
policy carried pursuant to Section 11.02 of this Lease, allocated to the leased
premis~ by Landlord. In the event of any such reconstruction by Tenant, an
architect duly registered in the State shall be selected by Landlord and shall
direct the payment of such insurance proceeds. Such insurance proceeds shall be
payable to Tenant only upon receipt by Landlord of certificates of said
architect stating that the payments specified therein are properly payable for
the purpose of reimbursing Tenant for expenditures actually made by Tenant in
connection with such work. At the election of Landlord or Landlord's mortgagee,
direct payments may be made to material suppliers and laborers upon written
certification by said architect that such payments are due and payable. Any such
insurance proceeds in excess of Tenant's actual expenditures in restoring the
damage or destruction shall belong to Landlord. In making repairs, restoration
or reconstruction, Tenant, at its expense, shall comply with all laws,
ordinances, and governmental rules or regulations, and shall perform all work or
cause such work to be performed with due diligence and in a first-class manner.
All permits required in connection with said repairs, restoration and
reconstruction shall be obtained by Tenant at Tenant's sole cost and expense.
Any amount expended by Tenant in excess of such insurance proceeds received by
Landlord and made available to Tenant shall be the sole obligation of Tenant. In
the event of reconstruction or~r by Landlord, any amount expended by Landlord in
repairing the leased premises in excess of the proceeds of insurance received by
Landlord pursuant to Section 11.02 of this Lease allocated to the leased
premises shall be repayable by Tenant to Landlord within ten (10) days after
receipt by Tenant from Landlord of a statement setting fortli the amount of 3uch
excess. The party required hereund~ to repair the damage to the leased premises
shall ~construct such leased prerrises in accordance with the working drawings
originally approved by Landlord or with (at Landlord's sole election) new
drawings prepared by Tenant and acceptable to Landlord and Tenant. In no event
shall Landlord be required to repair or replace Tenant's merchandise, trade
fixtures, furnishings or equipment. If (i) more than thirty-five percent (35%)
of the floor area of the building in which the leased premises are ocat or of
the Shopping Center shall be damaged or destroyed by fire or other casualty, or
(ii) during the last three (3) years of the term hereof more than twenty-five
pe~ent (25%) of the floor area of the leased premises or of the building in
which the leased premises are located or of the Shopping Center shall be damaged
or destroyed by fire or other casualty, or (iii) all or any part of the Shopping
Center or said building or the leased premises are damaged or destroyed at any
time by the occurrence of any risk not insured under the insurance carried by
Landlord pursuant to Sections 8 03 or 11.02(a), then Landlord, at its sole
option, may terminate this Lease by giving written notice to Tenant of
Landlord's election so to terminate, such notice to be given within ninety (90)
days after the occurrence of such damage or destruction. If Landlord repairs or
rebuilds, or requires Tenant to repair or rebuild the leased premises as herein
provided, Tenant, at Tenant's sole cost, shall repair or replace Tenant's
merchandise, trade fixtures, furnishings and equipment in a manner and to at
least a condition equal to that prior to the damage or destruction thereof. S[~
AUAJ~hFI) RIIiE~ FOB INSEBIS SE~ON 17.02. WAIVER OF SUBROGATION. ~ party hereto
does hereby waive, remise, release and discharge the other party hereto and any
officer, director, shareholder, beneficiary, partner, agent, employee or
representative of such other party. of and from any liability whatsoever
hereafter arising from loss, damage or injury caused by fire or other casualty
for which insurance containing a waiver of subrogation is carried by the injured
party at the time of such loss, damage or injury to the extent of any recovery
by the injured party under such insurance.
ARTICLE XVIII. EMINENT DOMAIN
SECTION 18.01. TOTAL CONDEMNATION OF LEASED PREMISES. If the whole of the
leased premises shall be taken by any public authority under the power of
eminent domain or sold to public authority under threat or in lieu of such a
taking, then the term of this Lease shall cease as of the day possession shall
be taken by such public authority, and the rent shall be paid up to that day
with a proportionate refund by Landlord of such rent and other charges as may
have been paid in advance for a period subsequent to the date of the taking.
SECTION 18.02. PARTIAL CONDEMNATION. (a)(i) If less than the whole but more
than twenty percent (20%) of the leased premises or more than fifty percent
(50%) of the common areas shall be so taken under eminent domain, or sold to
public authority under threat or in lieu of such a taking, Tenant shall have the
right either to terminate this Lease and declare the same null and void as of
the day possession is taken by public authority, or, subject to Landlord's right
of termination as set forth in Section 18.02(0) of this Article, to continue in
the possession of the remainder of the leased premises, upon notifying Landlord
in writing within ten (10) days after such taking of Tenant's intention. In the
event Tenant elects to remain in possession, all of the terms herein provided
shall continue in effect, except that, as of the day possession of such
percentage of the leased premises is taken by public authority, the minimum rent
and other charges payable by Tenant to Landlord (to the extent that such charges
are based upon the square foot area of the leased premises) shall be reduced in
proportion to the floor area of the leased premises taken and the Minimum Gross
Sales above
which percentage "ent is computed and payable shall likewise be
proportionately reduced; thereafter, Landlord shall, at its own cost and
expense, make all necessary repairs or alterations to the basic building, so as
to constitute the remaining leased premises a complete architectural unit, and
Tenant, at Tenant's sole cost, shall similarly act with respect to Tenant's
improvements, trade fixtures, furnishings and equipment.
(ii) If twenty percent (20%) or less of the leased premises shall be so
taken, the lease term shall cease only on the part so taken, as of the day
possession shall be taken by such public authority, and Tenant shall pay rent
and other charges up to that day, with appropriate credit by Landlord (toward
the next installment of such rent or charges due from Tenant) of such rent or
charges as may have been paid in advance for a period subsequent to the date of
the taking; thereafter, the minimum rent and other charges payable to Landlord
(to the extent that such charges are based upon the square foot area of the
leased premises) shall be reduced in proportion to the amount of the leased
premises taken and the Minimum Gross Sales above which percentage rent is
computed and payable shall likewise be proportionately reduced. Landlord shall,
at its expense, make all necessary repairs or alterations to the basic building,
so as to constitute the remaining leased premises a complete architectural unit,
and Tenant, at Tenant's sole cost, shall similarly act with respect to Tenant's
improvements, trade fixtures, furnishings and equipment.
(b) If more than fifty percent (50%) of the building in which the leased
premises are located, or more than fifty percent (50%) of the leased premises,
or more than fifty percent (50%) of the Shopping Center or of the common areas,
shall be taken under power of eminent domain, or sold to public authority under
the threat or in lieu of such a taking, Landlord may, by written notice to
Tenant delivered on or before the tenth (lOth) day following the date of
surrendering possession to the public authority, terminate this Lease as of the
day possession is taken by public authority. The rent and other charges shall be
paid up to the day possession is taken by public authority, with an appropriate
refund by Landlord of such rent as may have been paid in advance for a period
subsequent to that date.
SECTION 18.03. LANDLORD'S AND TENANT'S DAI~IAGES. All damages awarded for
such taking under the power of eminent domain or sale under threat or in lieu of
such a taking, whether for the whole or a part of the leased premises, shall
belong to and be the property of Landlord, irrespective of whether such damages
shall be awarded as compensation for diminution in value to the leasehold or to
the fee of the leased premises, and Tenant shall have no claim against either
Landlord or the condeinning authority with respect thereto; provided, however,
that Landlord shall not be entitled to any award specifically designated as
compensation for, depreciation to, and cost of removal of, Tenant's stock and
trade fixtures.
ARTICLE XIX. DEFAULT
SECTION 19.01. RIGHT TO RE-ENTER. (a) In the event of (1) any failure of
Tenant to pay any rent or other charges due hereunder wh~~ due, or (2) if Tenant
shall fail to move into the premises and to commence the conduct ~of its
business on the date specified in Section 1.02 hereof, or fail to~any obligation
hereunder prior to such commencement date, or fail to continuously operate its
business pursuant to Section 7.02 for the purpose specified in Section 7.01
hereof, or fail to operate under the name specified in Section 16.01 hereof, or
if Tenant shall abandon said premises, or permit this Lease to be taken under
any writ of execution, or if there shall be any default by Tenant (or by any
person or entity which, directly or indirectly, controls, is controlled by, or
is under common control with Tenant) under any other lease with Landlord (or
with any person or entity which is affiliated with Landlord or which, directly
or indirectly, controls, is controlled by, or is under common control with
Landlord, or wnich is managed by the managing agent utilized by Landlord for the
Shopping Center) which shall not be remedied within the applicable grace period,
if any, provided therefor under such other lease, [DELETED](3) any failure to
perform any other of the terms, conditions or covenar's of this Lease to be
observed or performed by Tenant for more than thirty (30) days after written
notice of such default shall have been ~ to~ then Landlord, besides other rights
or remedies it may have, shall have the right to declare this Lease terminated
and the term ended (in which event, this Lease and the term hereof shall expire,
cease and terminate with the same force and effect as though the date set forth
in any required notice 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 for all obligations arising during the balance of the
original stated term as hereafter provided as if this Lease had remained in full
force and effect) and Landlord shall have the right to bring a special
proceeding to recover possession from Tenant holding over and/or Landlord may,
in any of such events, without notice, re-enter the leased premises either by
force or otherwise, and dispossess, by summary proceedings or otherwise, Tenant
and the legal representative of Tenant or other occupant of the leased premises
and remove their effects and hold the premises as if this Lease had not been
made, and Tenant hereby waives the service of notice of intention to re-enter or
to institute legal proceedings to that end.
(b) In addition to the remedies set forth herein for such failure by
Tenaunt, Landlord shall have the further remedy of erecting a barricade at the
storefront of the leased premises at such time as possession of the leased
premises is deemed vested in Landlord, which barricade may be erected, at
Tenant's expense, and with~ notice to Tenant eo resort to legal process, and
without Landlord in any manner becoming liable for an;' loss or damage which may
be occasioned thereby. Notwithstanding the foregoing provisions of this Section,
in the event Tenant shall fail to perform or shall default in the performance of
.~ term, covenant or condition of this Lease on~i'j- or more separate occasions
during any twelve-month period, then, even though such failures or defaults may
have been cured by Tenant, any further failure or default by Tenant during ~
shall be deemed a default without the ability for cure by Tenant. During the
continuance of any failure of performance or any default by Tenant in the
performance of any term, cov( nant or condition of this Lease, Tenant shall not
be entitled to exercise any rights or options, or to receive any funds or
proceeds being held under or pursuant to this Lease, notwithstanding any
contrary provisions contained herein. In the
event of re-entry by Landlord, Landlord may remove all persons and property
from the leased 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
addition, and to the extent permitted by law, in the event of re-entry by
Landlord, Landlord may, but shall not be required to, padlock or otherwise
secure the entrances to the leased premises without prior notice or resort to
legal process and without being deemed guilty of trespass or becoming liable for
any loss or damage; all costs and expenses incurred by Landlord in securing the
entrances to the leased premises shall be borne by Tenant and shall be payable
to Landlord on ten (10) days' written notice; and any such padlocking or
securing of the premises shall not constitute or be deemed as an election on
Landlord's part to terminate this Lease unless a written notice of such
intention shall be given to Tenant or jinless the termination of this Lease is
decreed by a court of competent jurisdiction. In the event Tenant shall not
remove its property from the leased 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 [DELETED] To the extent that this Lease specifically
provides for any abatement of rent otherwise payable by Tenant under this Lease,
or any payment by Landlord to Tenant, such abatement shall not be effective, nor
shall such payment be required to be made.[DELETED]
SECTION 19.02. RIGHT TO RELET. Should Landlord elect to re-enter, as herein
provided, or should it take possession pursuant to legal proceedings or pursuant
to any notice provided for by law, it may either terminate this Lease or it may
from time to time, without terminating this Lease, make such alterations and
repairs as may be necessary in order to relet the premises, and relet said
premises or any part thereof for such term or terms (which may be for a term
extending beyond the term of this Lease) and at such rent and upon such other
terms and conditions as Landlord in its sole discretion may deem advisable. Upon
each such reletting all rents and other sums received by Landlord from such
reletting shall be applied, first, to the payment of any indebtedness other than
rent due hereunder from Tenant to Landlord; second, to the payment of any costs
and expenses of such reletting, including reasonable brokerage fees and
attorneys' fees and the costs of~ alterations and repairs; third, to the payment
of rent and other charges due and unpaid hereunder; and the residue, if any,
shall be held by Landlord and applied in payment of future rent as the same may
become due and payable hereunder. If such rents and other sums received from
such reletting during any month be less than that to be paid during that month
by Tenant hereunder, Tenant shall pay such deficiency to Landlord, if such rents
and the sums shall be more, Tenant shall have no right to, and shall receive no
credit for, the excess. Such defici~ncy shall be calculated and paid monthly. No
re-entry or taking possession of the leased 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 ofcompetentjurisdiction. Notwithstanding any such releitting
without termination, Landlord may at any time 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
Tenaut all damages it may incur by reason of such breach, including the cost of
recovering the leased premises, reasonable attorneys' fees, and including the
worth at the time of such termination of the excess, if any, of the amount of
rent and charges equivalent to rent reserved in this Lease for the remainder of
the stated term over the then reasonable rental value of the leased premises for
the remainder of the stated term all of which amounts shall be immediately due
and payable from Tenant to Landlord In determining the rent wh~ould be payable
under this Lease by Tenant subsequent to default, the percentage rent for each
year of the unexpired portion of the term shall be equal to the average
percentage rent payable by Tenant from the commencement of the term to the time
of default, or during the preceding three (3) full lease years, whichever period
is
shorter. The failure or refusal of Landlord to relet the premises shall not
affect Tenant's liabilitv. The terms '~entry" and "re-entry" are not limited to
their technical meanings. Nothing contained in this Lease shall be construed to
limit or prejudice the right of Landlord to prove for and obtain as damages by
reason of the termination of this Lease or re-entry of the leased premises for
the default of Tenant under this Lease an amount equal to the maximum allowed by
any statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved, whether or not such amount
shall be greater than any of the sums referred to in this ~~~inn 19.02
SECTION 19.03. EXPENSES. In case suit shall be brought for recovery of
possession of the leased premises, for the recovery of rent or any other amount
due under the provisions of this Lease, or because of the breach of any other
covenant herein c~.~:~~neo zr tcia ~ fTprz::t ~ and a breach shall be
established, Tnr.ar.tzkzll ~ all expenses incurred therefor, including
reasonable attorneys' fees. In addition, in the event Landlord shall incur
expenses, including reasonable attorneys' fees, as a result of Tenant's failure
to perform or comply with any term, covenant or condition set forth in this
Lease, Tenant shall pay to Landlord all such expenses. Any amounts payable by
Tenant to Landlord pursuant to this Section 19.03 or Section 11.03 of this Lease
may be included in any subsequent monthly rent xxxx to Tenant, and the failure
of Tenant to promptly pay same shall entitle Landlord to all remedies for
failure to pay rent as available under this Lease or at law or in equity.
SECTION 19.04. WAIVER OF COUNTERCLAIMS AND TRIAL BY 3URY. Landlord and
Tenant waive their right to trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other (except
for personal injury or property damage) on any matters whatsoever arising out of
or in any way connected with this Lease, the relationship of Landlord and
Tenant, Tenant's use of or occupancy of said premises, and any
emergency statutory or any other statutory remedy. Tenant shall not
interpose any counterclaim or counterclaims or claims for set-off, recoupment or
deduction of rent in a summary proceeding for~ayment of rent or other action or
summary proceeding based on termination, holdover or other default in which
Landlord seeks repossession of the leased premises from Tenant.
ARTICLE XX. BANKRUPTCY OR INSOLVENCY
SECTION 20.01. TENANT'S INTEREST NOT TRANSFERABLE. 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, except as may specifically be
provided pursuant to the Bankruptcy Code (11 USC ~ 101 et. seq ), or to any
receiver or assignee for the benefit of creditors or otherwise by operation of
law.
SECTION 20.02. TERMINATION. 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 or Tenant's Guarantor, if any, or Tenant's executors, administrators, or
assigns, if any, shall be adjudicated insolvent or bankrupt pursuant to the
provisions of any state law or an order for the relief of such entity shall be
entered pursuant to the Bankruptcy Code, or if a receiver or trustee of the
property of Tenant or Tenant's Guarantor, if any, shall be appointed by reason
of the insolvency or inability of Tenant or Tenant's Guarantor, if any, to pay
its debts, or if any assignment shall be made of the property of Tenant or
Tenant's Guarantor, if any, for the benefit of creditors, then and in any such
events, 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 established herein and fixed for the expiration of the
term, and Tenant shall vacate and surrender the leased premises but shall remain
liable as herein provided. Notwithstanding the foregoing provisions of this
Section, in the event that such termination shall result solely from the
bankruptcy or insolvency of, or such other described event relating to, Tenant's
Guarantor, Landlord shall have the option to reinstate all of the provisions of
this Lease (including, without limitation, the obligation of Tenant to
continuously operate pursuant to Article VII hereof) upon written notice to
Tenant
SECTION 20.03. TENANT'S OBLIGATION TO AVOID CREDITORS' PROCEEDINGS. Tenant
or Tenant's Guarantor, if any, shall not cause or give cause for the appointment
of a trustee or receiver of the assets of Tenant or Tenant's Guarantor, if any,
and shall not make any assignment for the benefit of creditors, or become or be
adjudicated insolvent. The allowance of any petition under any insolvency law
except under the Bankruptcy Code or the appointment of a trustee or receiver of
Tenant or Tenant's Guarantor, if any, or of the assets of either of them, shall
be conclusive evidence that Tenant caused, or gave cause, therefor, unless such
allowance of the petition, or the appointi'~ent of a trustee or receiver, is
vacated within ti;.~,J\'~~) days after such allowance or appointment. Any act
described in this Section 20 03 shall be deemed a material breach of Tenant's
obligations hereunder, and this Lease shall thereupon ~utomatically terminate in
the same manner and with the same force and effect as set forth in Section 20.02
hereof. Landlord does, in addition, reserve any and all other remedies provided
in this Lease or in law. Notwithstanding the foregoing provisions of this
Section, in the event that such termination shall result solely from the
bankruptcy or insolvency of, or such other described event relating to, Tenant's
Guarantor, Landlord shall have the option to reinstate all of the provisions of
this Lease (including, without limitation, the obligation of Tenant to
continuously operate pursuant to Article VII hereof) upon written notice to
Tenant.
SECTION 20.04. RIGHTS AND OBLIGATIONS UNDER THE BANKRUPTCY CODE. (a) Upon
the filing of a petition by or against Tenant under the Bankruptcy Code, Tenant,
as debtor and as 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 'operation as provided in
Section 7 02 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 and
occupancy of the leased premises, an amount equal to all minimum rent and other
charges otherwise due pursuant to this Lease and to pay percentage rent monthly
a' the percentage set forth in this Lease for the lease year in which such month
falls on all sales during such month in excess of one twelfth (1/12th) of the
Minimum Gross Sales for such lease year, with payment of all such percentage
rent to be made by the tenth (1 0th) day of the succeeding month; (iii) to
reject or assume this Lease within sixty (60) days of the appointment of such
trustee under Chapter 7 of the Bankruptcy Code or within sixty (60) days (or
such shorter term as Landlord, in its sole discretion, may deem reasonable, so
long as notice of such period is given) of the filing of a petition under any
other Chapter; provided that no extension of either of the foregoing periods by
or on behalf of Tenant shall be permitted; (iv) to give Landlord at least
forty-five (45) days' prior written notice of any proceeding relating to any
assumption of this Lease; (v) to give at least thirty (30) days' prior written
notice of any abandonment of the leased premises, with any such abandonment to
be deemed a rejection of this Lease and an abandonment of any property not
previously removed from the leased premises; (vi) to
do all other things of benefit to Landlord otherwise required under the
Bankruptcy Code, (vii) to be deemed to have rejected this Lease in the event of
the failure to comply with any of the above; and (viii) to have consented to the
entry of an order by an appropriate United States Bankruptcy Court providing all
of the above, waiving notice and hearing of the entry of same.
~) No 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.
(c) It is understood and agreed that this is a Lease of real property in a
shopping center and that, therefore, Section 365(0)(3) of the Bankruptcy Code is
applicable to any proposed assumption of this Lease in a bankruptcy case
(d) 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: (i) the cure of any monetary defaults and the
reimbursement of pecuniary loss immediately upon entry of a court order
providing for assumption and/or assignment; (ii) the deposit of an additional
sum equal to three (3) months' rent to be held pursuant to the terms of Section
26.01 of this Lease (notwithstanding any alteration or modification of the terms
of said Section); (iii) the use of the leased premises as set forth in 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 are unchanged; (iv) the
payment of any sums which may then be due or which may thereafter become due
pursuant to the provisions of Section 2.04 of this Lease; (v) the debtor, debtor
in possession, trustee, or assignee of such entity 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 leased premises in the
manner contemplated in this Lease, and meets all other reasonable criteria of
Landlord as did Tenant upon execution of this Lease; (vi) the prior written
consent of any mortgagee to which this Lease has been assigned ~s collateral
security; and (vii) the premises, at all times, remains a single store and no
physical changes of any kind may be made to the premises unless in compliance
with the applicable provisions of this Lease
(e) Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed without further act or deed to
have assumed all of the obligations arising under this Lease on and after the
date of such assignment. Any such assignee shall, upon demand, execute and
deliver to Landlord an instrument confirming such assumption.
ARTICLE XXI. ACCESS BY LANDLORD
SECTION 21.01. RIGHT OF ENTRY. Landlord or Landlord's agents shall have the
right to enter the leased premises at all reasonable times to examine the same
and to show them to prospective purchasers or mortgagees. Landlord or Landlord's
agents shall have the further ri~ht to enter the leased premises to make such
repairs, alterations, improvements or additions as Landlord may deem necessary
or desirable, irrespective of whether the work shall be for the leased premises
or for other premises or facilities, and Landlord shall be allowed to take all
material into and upon the leased premises that may be required therefor without
the same constituting an eviction of Tenant in whole or in part, and the rent
and other charges reserved shall in no wise xxxxx while said repairs,
alterations, improvements, or additions are being made, by reason of loss or
interruption of business of Tenant, or otherwise. Landlord may, at any time,
exhibit the leased premises to prospective tenants. If an excavation shall be
made upon land adjacent to the leased premises, or shall be authorized to be
made, Tenant shall afford to the person causing or authorized to cause such
excavation, license to enter upon the leased premises for the purpose of doing
such work as said person shall deem necessary to preserve the wall or the
building of which leased premises form a part from injury or damage and to
support the same by proper ~oundations without any r'laim for damages or
indemnity against Landlord, or diminution or abatement of rent.
ARTICLE XXII. TENANT'S PROPERTY
SECTION 22.01. TAXES ON TENANT'S PROPERTY. Tenant shall be responsible for,
and shall pay, prior to delinquency, any and all taxes, assessments, levies,
fees and other governmental ch~rges of every kind or nature (for all purposes
under this Lease, collectively called "taxes99) levied or assessed by municipal,
county, state, federal or other taxing or assessing authority upon, against or
with respect to (I) the leased premises or any leasehold interest, (ii) all
furniture, fixtures, equipment and any personal property of any kind owned by
Tenant or any previous tenant and occupant, and placed, installed or located in,
within, upon or about the leased premises, (iii) all alterations, additions or
improvements of whatsoever kind or nature, if any, made to the leased premises,
by Tenant or any previous xxxx:it or occupant, and (iv) rents or other charges
payable by Tenant to Landlord, irrespective of whether any of the terms
described in clauses (i) through (iv) above are assessed against real or
personal property, and irrespective of whether any of such items are assessed to
or against Landlord or Tenant. If at any time during the term of this Lease any
of such taxes are not levied and assessed separately and directly to Tenant (for
example, if the same are levied or assessed to Landlord, or upon or against the
building containing the leased premises and/or the land underlying said
building), Tenant shall pay to Landlord Tenant's share thereof~ determined by
Landlord.
SECTION 22.02. LOSS AND DAMAGE. Landlord shall not be responsible or liable
to Tenant for any loss or damage that may be occasioned by or through the acts
or omissions of persons occupying adjoining premises or any part of the premises
adjacent to or connected with the premises hereby leased or any part of the
building of which the leased premises are a part, or any other area in the
regional retail development, or for any loss or damage resulting to Tenant or
its property from bursting, stoppage or leaking of water, gas, sewer or steam
pipes, or (without limiting the foregoing) for any damages or loss of property
within the leased premises from any cause whatsoever.
SECTION 22.03. NOTICE BY TENANT. Tenant shall give immediate notice to
Landlord in case of any damage to or destruction of all or any part of, or
accidents in, the leased premises or of defects therein or in alterati ~ns,
decorations, additions or improvements, including, without limitation, any
fixtures or equipment.
SECTION 23.01. HOLDING OVER. Any holding over after the expiration of the
term hereof with the consent of the Landlord, shall be construed to be a tenancy
from
ARTICLE XXIII. HOLDING OVER
month to month at a monthly minimum rent of not less than~ ~ the annual
minimum rent effective for the final lease year or partial lease year preceding
expiration of the term (subject to further adjustment pursuant to the various
provisions of this Lease, including, without limitation, Section 2.04), together
with an amount estimated by Landlord for the monthly additional charges payable
pursuant to this Lease, and shall otherwise be on the same terms and conditions
(including, without limitation, payment of percentage rent) as herein specified
so far as applicable, subject to any changes in any of the foregoing terms or
conditions as may be submitted by Landlord to Tenant. Any holding over without
Landlord's consent shall entitle Landlord to re-enter the leased premises as
provided in Section 19.01 of this Lease.
SECTION 23.02. SUCCESSORS. All rights and liabilities herein given to, or
imposed upon, the respective parties hereto shall extend to and bind the several
respective heirs, executors, administrators, successors, and assigns of the said
parties; and if there shall be more than one person or entity comprising 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~ assignee
of
ARTICLE XXI". RULES AND REGULATIONS
SECTION 24.01. RULES AND REGULATIONS. Tenant agrees to comply with and
observe all rules and regulations established by Landlord from time to time,
provided the same shall apply uniformly to all tenants of the Shopping Center.
Tenant~s failure to keep and observe said rules and regulations shall constitute
a breach of the terms of this Lease in the same manner as if the rules and
regulations were contained herein as covenants. In the case of any conflict
between said rules and regulations and this Lease, this Lease shall be
controlling.
ARTICLE XXV. QUIET ENJOYMENT
SECTION 25.01. LANDLORD'S COVENANT. Upon payment by Tenant of the rents
herein provided, and upon the observance and performance of all covenants, terms
and conditions on Tenant~s part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the leased premises for the term hereby
demised without hindrance or interruption by Landlord or any other person or
persons lawfully or equitably claiming by, through or under ,,,Landlord,
subject, nevertheless, to the terms and conditions of this Lease and any
mor~age, deed of trust or underl5'ing lease to which this Lease is subordinate.
SECTION 25.02. TENANT'S COVENANT. Tenant hereby acknowledges and agrees
that Landlord has specifically relied upon the identity, skill, product line,
and trade name of Tenant in entering into this Lease with Tenant. Tenant
recognizes that its use of the leased premises in accordance with the use clause
set forth in the Data XxxxX and its compliance with the particular provisions of
Article VII hereof, regarding the conduct and continuous operation of Tenant's
business in the leased premises throughout the term of this Lease, forms a
material inducement to Landlord, and Tenant specifically covenants that it will
strictly adhere to these provisions. Any ambiguities iI '.'II the use clause set
forth in the Data Sheet shall be construed against Tenant ~ t T ~ ~. Tenant
further acknowledges and agrees that any in~ness from Tenant to Landlord
existing as of the date of this Lease shall be deemed additional rent hereunder,
and Tenant's commitment and obligation to pay all such indebtedness as
additional rent under this Lease has formed an additional necessary
consideration to Landlord in entering into this Lease and in hereby ~ranting
Tenant the right to use the leased premises as set forth herein.
ARTICLE XXVI. SECURITY PROVISION
SECTION 26.01. SECUR]TY. The amount set forth in the Data Sheet as a
security deposit is payable by Tenant, upon the execution of this Lease by
Tenant, in the manner and at the place where minimum rent is payable. Landlord
is to retain said amount as ~ecurity for the faithful performance of all
covenants, conditions and agreements of this Lease. Such amount is occasionally
referred to herein as the "security." Landlord may, at its option, apply the
security to remedy defaults in the payment of any rent or other charge
hereunder, to repair damages to the leased premises caused by Tenant, or to
clean the leased premises upon the expiration or termination of this Lease; in
no event however, shall Landlord be obligated so to apply the security.
Landlord's right to bring a special proceeding to recover or otherwise to obtain
possession of the leased premises before or after Landlord's declaration of the
termination of this Lease for nonpayment of rent or for any other reason shall
not in any event be affected by reason of the fact that Landlord holds such
security. Such security, if not applied toward the payment of rent in arrears or
toward the payment of damages suffered by Landlord by reason of Tenant's breach
of the covenants, conditions and agreements of this Lease, is to be returned to
Tenant without interest, except as provided by law, when this Lease is
terminated according to its terms, but in no event is such security to be
returned until Tenant has vacated the leased premises and delivered possession
thereof to Landlord. In the event that Landlord repossesses itself of the leased
premises, whether by special proceeding or re-entry or otherwise, because of
Tenant's default or failure to carry Out the covenants, conditions and
agreements of this Lease, Lan~ord may apply such security upon all damages
suffered to the date of said repossession
and may retain the security to apply upon such damages as may be suffered
or shall accrue thereaffer by reason of Tenant's default or breach. In the event
any bankruptcy, insolvency, reorganization or other creditor-debtor proceedings
shall be instituted by or against Tenant, or its successors or assigns, or any
guarantor of Tenant hereunder, such security shall be deemed to be applied first
to the payment of any rents and/or other charges due Landlord for all periods
prior to the institution of such proceedings, and the balance, if any, of such
security may be retained by Landlord in partial liquidation of Landlord's
damages. Landlord shall not be obligated to keep such security as a separate
fund but may commingle the security with its own funds. In the event Landlord
applies the security in whole or in part, Tenant siall, upon demand by Landlord,
deposit sufficient funds to maintain the security in the inital amount. Failure
of Tenant to deposit such additional security shall entitle Landlord to avail
itself of the remedies provided in this Lease for nonpayment of rent by Tenant.
The acceptance by Landlord of the security deposit submitted by Tenant shall not
render this Lease effective unless and until Landlord shall have executed and
actually delivered to Tenant a fully-executed copy of this Lease
ARTICLE XXVII. MISCELLANEOUS
SECTION 27.01. WAIVER; ELECTION OF REMEDIES. The subsequent acceptance of
rent hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant or condition of this Lease, other than
the failure of Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent. In particular, but without limitation, if Tenant assigns or transfers its
interest in this Lease contrary to the terms of this Lease, any acceptance by
Landlord of such assignee's or transferee's payment shall not be deemed to be a
waiver of the restrictions set forth in Section 14 Ol hereof. In the event that
Tenant shall be at any time in default of both monetary and nonmonetary terms,
covenants or conditions of this Lease, any acceptance by Landlord of any payment
rendered by Tenant shall not have the effect of curing Tenant's nonmonetary
defaults and shall not have the effect of curing any monetary default other than
the particular amount owing for which such payment is specifically accepted by
Landlord. Following notice of termination or any other remedy exercised by
Landlord with respect to any monetary default of Tenant, such default shall not
be deemed cured by the payment of rent owing by Tenant for the current period
only, and Landlord may apply such payments to current rent only without any
effect upon Tenant's existing indebtedness and continuing monetary default,
notwithstanding any contrary instructions by or on behalf of Tenant, which
instructions shall be null and void and ~.: no effect In addition, afte~ the
service of notice or the commencement of a suit, or after final judgment for the
possession of the leased premises, Landlord may receive and collect rent due
from Tenant, and the payment of rent by Tenant shall not waive or affect said
notice or suit or judgment. One or more waivers of any covenant or condition by
Landlord shall not be construed as a waiver of a subsequent breach of the same
covenant or condition, and the consent or approval by Landlord to or of any act
by Tenant requiring Landlord's consent or approval shall not be deemed to render
unnecessary Landlord's consent ~r approval to or of any subsequent similar act
by Tenant. The failure of Landlord to insist upon a strict performance of any
term, condition or covenant contained in this Lease shall not be deemed a waiver
of any rights or remedies that Landlord may have and shall not be deemed a
waiver of any subsequent breach or default in the terms, conditions or covenants
herein contained, and any such failure shall not be construed as creating a
custom of Landlord's accepting other than strict performance or as modifying in
any way the terms, covenants or conditions of this Lease. No breach by Tenant of
a covenant or condition of this Lease shall be deemed to have been waived by
Landlord unless such waiver is in writing signed by Landlord. No act or thing
done by Landlord or Landlord's agents shall be deemed an acceptance of surrender
of the leased premises and no agreement to accept such surrender shall be valid
unless in writing signed by Landlord In addition to any and all other remedies
available to Landlord, Landlord may dbtain an injunction to restrain any breach
or threatened breach of any term, covenant or condition of this Lease The rights
and remedies of Landlord under this Lease or under any specific section,
subsection or clause hereof shall be cumulative and in addition to any and all
other rights and remedies which Landlord has or may have elsewhere under this
Lease or at law or equity, whether or not such section, subsection or clause
expressly so states Nothing contained in this Lease shall be construed to confer
upon any person or entity other than Landlord or Tenant any rights, benefits or
causes of action, except to the extent specifically otherwise provided in this
Lease and except to the extent provided for the benefit of any mortgagee,
deeci-oftrust beneficiary, ground lessor or trustee for the Shopping Center.
SECTION 27.02. ENTIRE AGREEMENT. The Addendum, and all exhibits, and
riders, if any, attached hereto form a part of this Lease and shall be given
full force and effect, as fully as if set forth at length herein This Lease and
said Addendum, exhibits, and riders, if any, so attached hereto and forming a
part hereof, set forth all the covenants, prornises, agreements, conditions and
understandings between Landlord and Tenant concerning the leased premises, and
there are no covenants, promises, agreements, conditions or understandings,
either oral or written, between them other than as are herein set forth. Tenant
has not relied upon any representation of Landlord or its agents, other than any
items contained in this Lease, as an inducement to enter into this Lease No
alteration, amendment, change or addition to this Lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed by each party
SECTION 27.03. INTERPRETATION AND USE OF PRONOUNS. 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 venture between the parties hereto, it being understood
and agreed that neither the method of computation of rent, nor ~ny 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
SECTION 27.04. DELAYS. In the event that either panty hereto shall be
delayed in the performance Gf its initial construction or maintenance dfld/or
repair obligations by reason of strikes, loc'..outs, labor troubles, inabihy to
procure materials or shall at any time be so delayed by reason of failure of
power, restrictive governmental laws or reasons of a similar nature not the
fault of the party delayed in performing work or doing acts required under the
terms of this Lease, then performance of such act shall be excused for the
period of the delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of such delay. Nothing contained
in this Section shall excuse Tenant from the continuous operation of its
business in the leased premises in accordance with the provisions of Sections
7.01 and 7.02 hereof. TY- provisions of this Section 27.04 shall not operate to
delay the commencement of the term of this Lease or to excuse Tenant from
payment of minimum rent, percentage rent or any other payments required by the
terms of this Lease; provided, however, that the obligation of Tenant to open
for business pursuant to Section 1.03 hereof may be delayed pursuant to the
provisions of this Section 27.04. Further, Landlord's reduction of heat, light,
air conditioning, or any other services whatsoever to the Shopping Center
because of any similar or dissimilar event constituting a cause for excusable
delay hereunder shall not relieve Tenant from its obligations under Article VII
of this Lease S'(pound)~ [~T~r\\,E~ RI[]E~ F()~ INSE~TS
SECTION 27.05. NOTICES. Unless specifically stated to the contrary in this
Lease, any notice, demand, request or other instrument which may be or is
required to be given by Tenant under this Lease or by law shall be sent by
United States certified mail, return receipt requested, postage prepaid, and
shall be deemed to have been given as of the ~ ~ay . . g receipt of same by
Landlord; or, if required to be given by Landlord under this Lease or by law,
such notice, demand, request or other instrument ~ be Sent by certified mail, ~;
[DELETED] and shall be deemed to have been given upon the date of [DELETED] and
shall b~ addressed (a) if to Landlorj, at the address set forth for Landlord on
Page Dl of this Lease or at such other address as Landlord may designate by
written notice, Attention Lease Administration, together with copies thereof to
such other parties designated by Landlord, and cb) if to Tenant, at "ir 1o~~ud
u-omir~r the address set forth for Tenant on Page Dl of this Lease or such other
address as Tenant shall designate by written notice. All notices [DELETED]
without limitation, notices of default and/or termination of Tenant's interests
under this Lease, may be given ~ attorney a~ting as agent [DELETED]
SECTION 27.06. 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 27.07. BROKER'S COMMISSION. Each party represents and warrants to
the other party that the warrantor has dealt with no brokers and that there are
no claims for brokerage commissions or finder's fees, nor will there be any such
claim, arising from any act or omission of the warrantor in connection with this
Lease, and the warrantor agrees to indemnify the other party and hold it
harmless from all liabilities arising from any such claim, including, without
limitation, the cost of attorneys' fees in connection therewith. Such agreement
shall survive the termination of this Lease.
SECTION 27.08. RECORDING. Tenant shall not record this Lease or any
memorandum, affidavit or other notice of this Lease.
SECTION 27.09. FUR~SHING OF FINANCIAL STATEMENTS. Upon Landlord's written
request, Tenant shall promptly furnish Landlord, from time to time, with
financial statements (including, without limitation, operating statements
including an annual profit and loss statement for the individual store unit
covered by this Lease) reflecting Tenant's current financial condition, and
written evidence of then current ownership of managing and controlling interests
in Tenant and in any entities which directly or indirectly control or manage
Tenant (which written evidence shall include, without limitation, the names of
all existing managers, shareholders and partners, as applicable, of record and
their respective management/ownership interests as of the date of such writing),
which financial statements and written evidence shall be certified as being true
and correct by the chief financial officer or partner and by the chief executive
officer or partner of Tenant.
SECTION 27.10. LANDLORD'S USE OF COMMON AREAS. Landlord reserves the right,
from time to time, to utilize portions of the co~on areas for carnival type
shows, rides and entertainment, outdoor shows, displays, automobile and other
prndtict shows, the leasing of permanent and temporary 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 facilities for advertising purposes. Any revenues derived by Landlord
from the use of the common areas, whether from usage fees or otherwise, shall
not be applied as a deduction against any cost or expense required to be paid by
Tenant under this Lease.
SECTION 27.11. TRANSFER OF LANDLORD'S INTEREST. In the event of any
transfer or transfers of Landlord's interest in the premises, 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 of the transferor, as Landlord, in
any funds then in the hands of Landlord in which Tenant has an interest shall be
turned over, subject to such interest, to the then transferee; and ~) notice of
such sale, transfer or lease shall be delivered to Tenant as required by law.
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. No holder of a mortgage
or deed of trust, or underlying lessor on an underlying lease, to which this
Lease is or may be subordinate, and no lessor under a so-called sale-leaseback
shall be responsible in connection with the security deposited hereunder, unless
such mortgagee, holder of such deed of trust, underlying lessor or lessor shall
have actually received the security deposited hereunder.
SECTION 27.12. FLOOR AREA. (a) The term "floor area" as used in this Lease
means, with respect to any leasable area in the Shopping Center or in the
regional retail development, the aggregate number of square feet of floor space
of all floor levels therein, including any mezzanine space (to the extent
reflected as floor area in the applicable leases), 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 line 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. In the event Landlord
determines that the square foot area of the leased premises is at variance with
the square foot area stated in this Lease, Landlord may, at its option, adjust
the floor area of the leased premises and make proportional adjustments in
minimum rent, percentage rent, and promotional/Merchants' Association charges,
and other charges to Tenant under this Lease.
(1)) For the purpose of this Lease, in determining the gross leasable flooY area
or the gross leased and occupied floor area of the Shopping Center, there shall
be excluded therefrom, at the sole option of Landlord, the ~asable area of~
square feet or more occupied by a single entity (which, for purposes of this
Lease, shall be defined as a department store), the floor area of any premises
leased for the operation of a post-office type or packaging or delivery facility
or other public/consumer-service or governmental facility, the floor area of any
space without direct customer access from the enclosed Mall, and the total floor
area utilized by Landlord for the operation of a skating rink or other
recreational area, child care center, community room, library, project offices,
and related rooms, common areas and project areas, which shall be deemed
amenities to the Shopping Center. The term "gross leased and occupied floor area
shall include o~y such areas as are leased and occupied by tenants subsequent to
the dates of commencement of the terms of their respective leases. Areas shall
not be considered occupied to the extent that Landlord shall not be receiving
full proportionate share contributions for the same. No deduction or exclusion
from floor area shall be made by reason of columns, ducts, stairs, elevators,
escalators, shafts, or other interior construction or equipment.
SECTION 27.13. INTEREST ON PAST DUE OBLIGATIONS. Any amount due from Tenant
to Landlord hereunder which is not paid when due (including, without limitation,
amounts due as reimbursement to Landlord for costs incurred by Landlord in
performing obligations of Tenant hereunder upon Tenant's failure to so perform)
shall bear interest at the highest rate then allowed under the usury laws of the
State from the date due until paid, unless otherwise specifically provided
here~n, but the payment of such interest shall not excuse or cure any default by
Tenant under this Lease
SECTION 27.14. LIABILITY OF LANDLORD. If Landlord shall fail to perform any
covenant, terr~ 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 judgment and levied thereon against the
right, title and interest of Landlord in the Shopping Center and out of net
income from such property received 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 Shopping Center, subject,
nevertheless, to the rights of Landlord's mortgagee, and neither Landlord, nor
the individuals or entities which constitute the partners of the partnership
which is Landlord, nor the individuals or entities which constitute the partners
of the partnership which is the beneficiary of the Trust of which Landlord is
Trustee (if applicable), shall be liable for any deficiency. If Landlord is
identified in this Lease as a Trustee, Tenant hereby recognizes that Landlord is
executing this Lease as Trustee under an express trust, and it is expressly
understood and agreed by and between the parties hereto, anything herein to the
contrary notwithstanding, that each and all of the representations, covenants,
undertakings and agreements herein made on the part of the Landlord while in
form purporting (except as herein otherwise expressed) to be the
representations, covenants, undertakings, and agreements of the Landlord are
nevertheless each and every one of them, made and intended not as personal
representations, covenants, undertakings and agreements by the Landlord or for
the purpose or with the intention of binding said Landlord personally but are
made and intended for the purpose of binding only that portion of the trust
property specifically leased hereunder, and this Lease is executed and delivered
by said Landlord not in its own right, but solely in the exercise of the powers
conferred upon it as such Trustee; that no duty shall rest upon Landlord to
sequester the trust estate or the rents, issues and profits arising therefrom,
or the proceeds arising from any sale or other disposition thereof; and that no
personal liability or personal responsibility is assumed by nor shall at any
time be asserted or enforceable against Trustee, or any successor trustee or any
of the beneficiaries under said trust, on account of this Lease or on account of
any representation, covenant, undertaking or agreement of the said Landlord in
this Lease contained, either expressed or implied, all such personal liability,
if any, being expressly waived and released by the Tenant herein and by all
persons claiming by, through or under said Tenant.
SECTION 27.15. ACCORD AND SATISFACTION. Payment by Tenant or receipt by
Landlord of a l~sser amount than the rent or other charges herein stipulated may
be, at Landlord's sole option, deemed to be on account of the earliest due
stipulated rent or other charges, or deemed to be on account of rent owing for
the current period only, notwithstanding any instructions by or on behalf of
Tenant to the contrary, which instructions shall be null and void, and no
endorsement or statement on any check or any letter accompanying any check
payment as rent or other charges shall be deemed an accord and satisfaction, and
Landlord shall accept such check or payment without prejudice to Landlord's
right to recover the balance of such rent or other charges or pursue any
other remedy in this Lease or in law or in equity against Tenant.
SECTION 27.16. EXECUTION OF LEASE; NO OI'TION. The submission of this Lease
to Tenant shall be for examination purposes only, and does not and shall not
constitute a reservation of or option for Tenant to lease, or otherwise create
any interest of Tenant in the leased premises or any other premises situated in
the Shopping Center Execution of this Lease by Tenant shall be irrevocable. The
return to Landlord of Tenant-executed copies of this Lease shall not be binding
upon Landlord, notwi~ng any preparation or anticipatory reliance or expenditures
by Tenant or any time interval, until Landlord has in fact executed and actually
delivered a fully-executed copy of this Lease to Tenant ~NS(pound)~S SECTION
27.17. GOVERNING LAW. This Lease shall be construed in accordance with the laws
of the State. If any provision of this Lease or the application thereof to any
person or circumstances shall, to any extent, be invalid or unenforceable, the
remainder of this Lease shall not be affected thereby and each remaining
provision of the Lease shall be valid and enforceable to the full extent
permitted by the law Tenant appoints the following persons at the following
locations as agent to receive service of process, writs, notices, summonses, or
other legal documents in any suit, action or proceeding which Landlord may
commence against Tenant. ~ any officer, partner or other principal of Tenant, or
any person in charge, at the Tenant's address as set forth on Page Dl of this
Lease. Where permitted by law or local court rule, Tenant consents to service of
such process by United States mail, in the manner specified in the applicable
law or court rule
SECTION 27.18. SPECII"IC PERFORMNCE OF LANDLORD'S RIGHTS. Landlord shall
have the right to obtain specific performance of any and all of the covenants or
obligations of Tenant under this Lease, and nothing contained in this Lease
shall be construed as or shall have the effect of abridging such right.
SECTION 27.19. CERTMN RULES OF CONSTRUCTION. Time is of the essence in this
Lease. Notwithstanding the fact that certain references elsewhere in this Lease
to acts required to be performed by Tenant hereunder omit to state that such
acts shall be performed at Tenant's sole cost and expense, unless the context
clearly implies to the contrary, each and every act to be performed or
obligations to be fulfilled by Tenant pursuant to this Lease shall be performed
or fulfilled at Tenant's sole cost and expense. Any breach or default by Tenant
of its obligations under this~shall be deemed material. Tenant shall be fully
responsible and liable for the observance and compliance by concessionaires with
all the terms and conditions of this Lease, which terms and conditions shall be
applicable to concessionaires as fully as if such concessionaires were the
Tenant hereunder, any failure by a concessionaire fully to observe and comply
with the terms and conditions of this Lease shall constitute a default hereunder
by Tenant. Nothing (pound)ontained in the preceding sentence shall constitute a
consent by Landlord to any concession, subletting or other arrangement
proscribed by Section 14.01. All provisions of this Lease have been freely
negotiated by and between the parties ~r~; ~ ~l!]E~ ~[)3' ~~S(pound)BTS SECTION
27.20. INDEX. The term "Index' as used in this Lease shall be the "Consumer
Price Index fo~ All Urban Consumers (1982-84 = 100), U.S. City Average, All
Items," as published by the Bureau of Labor Statistics of the United States
Department of Labor. If the Index is not published by the Bureau of Labor
Statistics or another governmental agency at any time during the term of this
Lease, or if the Index is otherwise re-named, discontinued or superseded, then
the calculations based on the Index shall be made using the most closely
comparable statistics on the purchasing power of the consumer dollar as
published by a responsible financial authority and selected by Landlord
SECTION 27.21. SURVIVAL; NONDISCLOSURE; I"REE ACT. The obligations of
Tenant for payment of rent and charges under this Lease shall survive the
expiration or earlier termination of the term of this Lease. Tenant covenants
that neither Tenant nor any attorney or other representative for Tenant shall
disclose the contents of this Lease to any other person ~t. Tenant shall be
fully responsible for the actions of its attorneys and representatives. By its
execution of this Lease, enant acknowledges and agrees that it has read this
Lease, understands the contents hereof, and is signing this Lease as its own
free act and deed, and as the free act and deed of the representatives signing
on Tenant's behalf, without any persuasion or coercion by any person or entity,
and with full advice of counsel
[End of Standard Form; signature and acknowledgment pages for the Lease
appear after the Data Sheet on the pages immediately preceding the Addendum.]
[GRAPHIC]
[GRAPHIC]
[GRAPHIC]
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[GRAPHIC]
Parcel 1:
That part of Lot 2A in the Resubdivision of parts of Lots 2, 5, 6 and 7 in
Woodfield, and that part of Lot 2 in Woodfield, taken as a Tract, said Woodfield
being a Subdivision of part of the Northwest Quarter', Northeast Quarter and
Southeast quarter of Section 13, Township 41 ~or'th, Range 10, East of the Third
Principal Meridian, bounded and described as follows:
Commencing at the most Northerly corner of Lot 2A aforesaid, thence South
430 40' 00,' East, along the Northeasterly line of said Lot 2A, 25.67 feet to
the point of beginning; thence South 430 40' 00,' east along said Northeasterly
line of Lot 2A, 308.33 feet; thence South 460 20' 0011 West, 30.00 feet; thence
South 430 40' 00,' East, 86.75 feet; thence North 46~ 20' 00,' East, 192.42
feet; thence South 430 40' 00,' East, 1.42 feet; thence North 460 20' 00,' East,
25.17 feet; thence North 430 40' 00,' West, 6.75 feet; thence North 880 40' 00,'
West, 8.25 feet; thence North 430 40' 00,' West, 2.33 feet; thence North 010 20'
00,' East, 4.95 feet; thence North 010 20' 00,' East, 2.33 feet; thence North
430 40' 00,' West, 53.92 feet; thence North 460 20' 00" East, 52.67 feet; thence
North 430 40' 00,' West, 272.00 feet; thence South 460 20' 00,' West, 50.67
feet; thence North 430 40' 00,' West, 41.50 feet; thence South 460 20' 00,,
West, 20.25 feet; thence North 430 40' 00.' West, 2.33 feet; thence North 880
40' 00,, West, 7.78 feet; thence South 460 20' 00" West, 56.46 feet; thence
North 880 40' 00,' West, 6.36 feet; thence South 460 20' 00,' West, 11.75 feet;
thence South 010 20' 00,' West, 11.55 feet; thence South 460 20' 00,, West,
30.08 feet; thence North 880 40' 00" West 11.55 feet; thence South 460 20' 00,'
West 11.75 feet; thence South 010 20' 00,' West, 6.36 feet; thence South 460 20'
00" West, 28.46 feet to the-point of beginning, in Xxxx County, Illinois.
Also
Parcel 2:
Xxx 00 xxx Xxx 0 xx Xxxxxxxxx, a Subdivision of part of the Northwest
Quarter and the Northeast Quarter and the Southeast Quarter of Xxxxxxx 00,
Xxxxxxxx 00 Xxxxx, Xxxxx 00, Xxxx of the Third Principal Meridian, in Xxxx
County, Illinois, except that part of Lot 2 lying Northerly of the following
described line:
Beginning at a point on the East line of said Lot 2, said point being 8.897
feet Southerly of (as measured a ~ng the East line of said Lot 2) the
Northeasterly corner of said Lot 2; thence Westerly along a straight line having
a bearing of South 880 17' OS" West a distance of 171.83 feet to a point on the
West line of said Lot 2, said point being 7.119 feet Southerly of (as measured
along the West line of said Lot 2) the Northwester~ corner of said Xxx 0, xxxx
xxxx containing approximately 1,005 square feet, and except Lot 2A in the
Resubdivision of parts of Lots 2, 5, 6 and 7 in Woodfield, being a Subdivision
of part of the Northwest Quarter, Northeast Quarter and Southeast Quarter of
Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00, Xxxx of the Third Principal Meridian,
(except that part bounded and described as follows: commencing at the most
Northerly corner of said Lot 2A; thence South 430 40' 00,' East, along the
Northeasterly line of said Lot 2A, 334.00 feet to the point of beginning, thence
South 460 20' 00" West 30.00 feet; thence South 430 40' 00,' East, 5.00 feet;
thence North 460 20' 00" East, 30.00 feet; thence North 430 40' 00,' West, 5.00
feet to the point of beginning) in Xxxx County, Illinois, and in addition
thereto Lot 5A in the Resubdivision of parts of Lots 2, 5, 6 and 7 in Woodfield,
being a Subdivision of part of the Northwest Quarter, Northeast Quarter and
Southeast Quarter of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00, Xxxx of the Third
Principal Meridian, Xxxx County, Illinois, excepting therefrom the following:
That part of Lot 2A in the Resubdivision of parts of Lots 2, 5, 6 and 7 in
Woodfield, and that part of Lot 2 in Woodfield, taken as a Tract, said Woodfield
being a Subdivision of part of the Northwest Quarter, Northeast Quarter and
Southeast Quarter of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00, Xxxx of the Third
Principal Meridian, bounded and described as follows:
Commencing at the most Northerly corner of Lot 2A aforesaid, thence South
430 40' 00,' East, along the Northeasterly line of said Lot 2A, 25.67 feet to
the point of beginning; thence South 430 40' 001, East along said Northeasterly
line of Lot 2A, 308.33 feet; thence South 460 20' 00,' West, 30.00 feet; thence
South 430 40' 00,' East, 86.75 feet; thence North 460 20' 00,' East, 192.42
feet; thence South 430 40' 00" East, 1.42 feet; thence North 460 20' 00" East,
25.17 feet; thence North 430 40' 00,' West, 6.75 feet; thence North 880 40' 00,'
West, 8.25 feet; thence North 430 40' 00,, West, 2.33 feet; thence North 010 20'
00,' East, 4.95 feet; thence North 010 20' 00" East, 2.33 feet; thence North 430
40' 00" West, 53.92 feet; thence North 460 20' DO" East, 52.67 feet; thence
North 430 40' 00" West, 272.00 feet; thence South 460 20' DO" West, 50.67 feet;
thence North 430 40' 00,' West, 41.50 feet; thence South 460 20' DO" West, 20.25
feet; thence North 430 40' 00,' West, 2.33
feet; thence North 880 40' 00,' West, 7.78 feet; thence South 460 20' 00"
West, 56.46 feet; thence North 880 40' 00,' West, 6.36 feet; thence South 460
20' DO" West, 11.75 feet; thence South 010 20' 00,' West, 11.55 feet; thence
South 460 20' DO" West, 30.08 feet; thence North 880 40' DO" West, 11.55 feet;
thence South 460 20' DO" West, 11.75 feet; thence South 010 20' DO" West, 6.36
feet; thence South 460 20' DO" West, 28.46 feet, to the point of beginning, in
Xxxx County, Illinois.
EXHIBIT B CONSTRUCTION
This Exhibit B shall be deemed to include Exhibit B-i and any additional
construction exhibits as may be attached to this Lease. Such additional exhibits
may have the effect of providing further specifications or criteria or may serve
to amplify or adjust certain of the provisions contained in this Exhibit B.
SECTION I. EXISTING IMPROVEMENTS
The reuse by Tenant of existing improvements, if any, within the leased
premises shall be as dictated by practicality and Landlord's existing design
criteria and shall be subject to Landlord's written approval
SECTION II. LANDLORD'S WORK
A. A complex of building shells and common area improvements of exterior
and interior design and materials as determined by Landlord substantially as
shown in Exhibit A.
B If any partitions are required to separate the leased premises from
adjacent spaces, Landlord shall install metal stud framing only, after Tenant
has performed any demolition necessary to accommodate installation of said
framing. Such stud framing shall extend from the floor slab of the leased
premises to the underside of the floor or roof structure Tenant shall reimburse
Landlord as Tenant's share of the cost of such work, $20.00 per lineal foot of
said stud framing. Tenant shall install gypsum board on Tenant's side of stud
framing to underside of structure as required for a one-hour fire resistant
separation.
C In the event that the leased premises are located in a retail
development, or in an expansion wing of a retail development, which development
or expansion wing shall not yet have opened for business to the public, and
Tenant shall be able to complete its construction within the leased premises
prior to such opening, Landlord shall not provide a temporary barricade at the
storefront lease line, except to the extent that Landlord shall determine that
such barricade is necessary or desirable. If the leased premises are not located
in such a development or in such an expansion wing, or if Tenant shall be unable
to complete the construction of the leased premises and to open for business at
the time that such development or expansion wing, as applicable, first opens for
business to the public, Landlord shall provide, for Tenant's use during
construction and demolition, a temporary barricade at the storefront lease line.
Tenant shall reimburse Landlord $45.00 per lineal foot of storefront lease line
for any such temporary barricade provided by Landlord. Landlord shall remove the
storefront barricade upon completion of Tenant's Work and when Tenant is
prepared to open for business as determined by Landlord. Landlord shall have the
option, by written notice to Tenant, to require Tenant to remove the storefront
barricade and to store the same at a location specified by Landlord within the
regional retail development. In the event of such removal by Tenant, Tenant
shall be responsible for any damage caused to the barricade by such removal and
storage. In either case, Tenant shall immediately repair any damage caused to
the leased premises by the removal of the barricade.
D If the entire leased premises shall not have been previously occupied by
another tenant or occupant, the provision of utility connections by Landlord
shall be as set forth under Section II of Exhibit B-i. If the entire leased
premises shall have been previously occupied, and the following utilities or
utility stubs are not contained within the premises, Landlord shall cause said
utilities to be extended to within the leased premises at a point which is
closest to Landlord's pickup point. Such utilities shall include: sanitary,
domestic cold water, plumbing vent (where applicable), fire protection, and air
conditioning supply duct stub (where applicable) Refer to Exhibit B-i (and/or to
other construction exhibits, if any, attached to this Lease) for additional
information on certain utilities
SECTION III. TENANT'S WORK
Tenant at its sole cost and expense shall perform all work required to
complete the leased premises to a finished condition ready for the conduct of
business therein. Tenant's Work shall conform to criteria, procedures, and
schedules as set forth in Sections IV, V, and VI respectively, of this Exhibit,
and shall include, but not be limited to, the following
A Field Conditions: Prior to the preparation of its working drawings and
the commencement of its construction, Tenant shall survey the site to inspect,
verify and coordinate all existing conditions within the leased premises Such
survey shall include the location of existing mall utilities which are to
remain, placement of wall stud framing defining the leased premises, and
identification of various improvements made by previous occupant(s), if any,
which are to remain, be relocated or removed and the determination of the extent
of demolition or repair to be performed by Tenant. Tenant shall advise Landlord
immediately of any discrepancies with respect to Lan~ord's Space Layout
drawings.
The results of such survey shall be incorporated into Tenant's working
drawings and specifications. Tenant shall verify conditions pertaining to the
leased premises from time to time after commencement of construction of its
leased premises. Any adjustments to the work arising from field conditions not
apparent on drawings and other building documents shall receive the prior
written approval of Landlord.
Immediately following the installation by Landlord of wall stud framing
defining the leased premises, Tenant shall verify the accuracy of said
installation and shall immediately advise Landlord of any discrepancies. Failure
to so notify Landlord shall be deemed as acceptance by Tenant of said
installation and layout.
Tenant shall coordinate its work with the work of others or with existing
conditions occurring above or below the leased premises and shall make changes
from time to time as required to accommodate such work or conditions.
B. Workin~ Drawin~s and ST,ecifications: Working Drawings and
Specifications as set forth in Section V of this Exhibit
C. Demolition
1. All demolition required to facilitate Tenant's construction shall be
performed by Tenant at Tenant's expense, and shall be as approved by Landlord on
Tenant's demolition plans, prior to commencing such work.
a. Floors: Tenant shall repair or replace any part of the existing concrete
slab which may have been removed by Landlord or Tenant to allow for extension of
underground utilities. Backfill and compaction shall be provided by Tenant. b.
Interior Finishes: Tenant shall demolish any existing improvements made by
previous occupant(s) within the leased premises which Tenant has indicated on
the survey referred to in Section III (A) above are not to remain. Such work
shall include but not be limited to: storefront and storefront enclosure,
abandoned party walls, interior partitions and finishes. floor coverings,
ceilings and miscellaneous improvements. Removal of demolition debris shall be
performed by Tenant. In no event shall removal of debris take place through the
malls during the hours in which the Shopping Center is open for business. c.
Mechanical and Electrical Equipment: Tenant shall remove all mechanical and
electrical systems existing on the leased premises which are no longer
functional or designated to be reused. Such work shall include but not be
limited to: roof top and interior HVAC equipment and supports. duct work, wire
and conduits, electrical distribution equipment, plumbing fixtures, sprinkler
lines, telephone equipment and any specialty equipment as may exist in the
leased premises.
2 Repairs
Tenant shall make all repairs to the premises necessitated by the removal
of the improvements made by previous occupant(s). Such work shall include but
not be limited to: concrete slab, roof, structural members, mechanical and
electrical equipment, telephone equipment, party walls and interior finishes
Architectural and Finishing Work
1. Storefront work.
2. Partitions.
a To the extent that new corridor-partitions are required, Landlord will
erect stud framing and one (1) layer of 5/8" firecode gypsum wallboard on the
corridor side of one-hour fire resistant partitions separating the leased
premises from adjacent service/exit corridors. Such stud framing shall extend
from the floor slab of the leased premises to the underside of the floor or roof
structure. Tenant shall reimburse Landlord as Tenant's share of the cost of such
work $45.00 per lineal foot of said stud framing, and gypsum wallboard. Tenant
shall install one (1) layer of 5/8" firecode gypsum wallboard on Tenant's side
of stud framing to underside of structure as required for a one-hour fire
resistant separation.
Note Service/exit corridors where a two-hour fire resistant partitions
separating the leased premises from the adjacent service/exit corridor is
required, Landlord will erect stud framing and two (2) layers of 5/8" firecode
gypsum wallboard on the corridor side of two-hour fire resistant partitions
separating the leased premises from adjacent service/exit corridors. Tenant
shall reimburse Landlord as Tenant's share of the cost of such work $66.00 per
lineal foot of said stud framing and gypsum wallboard. Tenant shall install two
(2) layers of 5/8" firecode gypsum wallboard on Tenant's side of stud framing to
underside of structure as required for a two-hour fire resistant separation.
3. All required interior partitioning, fire separations and doors, service
exit door, ceiling work, floor coverings, commercial grade finish hardware, and
painting and finishing work.
4 Covering and finishing of colurrins to achieve a one-hour fire resistant
rating
5 Toilet facilities.
C. Architectural Structural
a In upper level Tenant spaces with a depressed structural concrete floor,
concrete topping to achieve a finished floor elevation at the same elevation as
the mall. b. Repairs as may be required to accommodate extension of underground
utilities. c. All slabs on grade. Tenant shall provide sand fill and/or remove
excess as required and compact same to 95% modified xxxxxxx and install a vapor
barrier (minimum .004 mill visqueen) and a concrete minimum strength of 3,000
pounds with 6 x 6 No.10 woven wire mesh (minimum thickness 4") in accordance
with Standard Project Details, finished as required to receive floor finishes.
d. Finished floor elevation at all store entrances shall be at the same
elevation as adjacent areas. All carpet areas are to be depressed.
E. Structural
1. Any alterations and/or additions and reinforcements to Landlord's
structure required to accommodate Tenant's Work, all of which must be designed
by a certified structural engineer at Tenant's expense. Performance of such work
is subject to prior written approval of Landlord
F. Mechanical
1 All plumbing, heating, ventilating, and air conditioning systems within
or directly related to Tenant's leased premises, proceeding from the points of
connection to utilities as listed in Exhibit B-i, or modifications to existing
mechanical systems, all in accordance with Landlord's design criteria.
G. Electrical
1 All electrical and telephone systems within or directly related to the
leased premises proceeding from points of connection to utilities as listed in
Exhibit B-i (or in other construction exhibits, if any, attached to this Lease),
or modifications to existing systems, all in accordance with Landlord's design
criteria
H. Fire Protection
1A complete, hydraulically calculated fire protection sprinkler system,
proceeding from the point of connection to Landlord's system or modifications or
removal of existing fire protection sprinkler system and existing fire retardant
materials in accordance with Landlord's design criteria. All such work shall be
performed, at Tenant's sole cost and expense, by a qualified sprinkler
contractor acceptable to Landlord. Landlord's approval of the foregoing shall
not constitute the assumption of any responsibility by Landlord for the accuracy
or sufficiency thereof, and Tenant shall be solely responsible therefor.
Tenant shall be responsible for the cost of the complete removal of all
existing ~ materials and all demolition associated with this removal. All work
will be done in strict compliance with all local, state, and federal codes and
requirements. All demolition and removal work will be performed by contractors
under contract with the Landlord. - ~
All of the work performed pursuant to this Section III shall, for the
purpose of the Lease to which this Exhibit is attached and made a part, be
deemed to be improvements made to the leased premises by Tenant.
SECTION IV. CRITERIA -- TENANT'S WORK.
The requirements, criteria and/or outline specifications as set forth
herein represent minimum standards for the preparation of working drawings,
construction and finish of the leased premises by Tenant
A. Standard Project Details and Construction Information
1 Standard Project Details and Construction Information, issued by
Landlord, as they pertain to Tenant's Work, shall govern with respect to such
work. Such details shall be reviewed by Tenant and incorporated as required in
Tenant's Working Drawings and Specifications for the leased premises.
B. Desi~n Loads
1. Structural loading imposed by any of Tenant's Work on a temporary or
permanent basis shall not exceed the following allowable live loads:
a. Stores located on supported slabs (levels other than on-grade): 75 lbs.
per square foot
b. Common areas, mall courts, and galleries: 75 lbs. per square foot.
c. On-grade slabs: 125 lbs. per square foot.
d. Roof: 20 lbs. per square foot.
Tenant shall enter into a direct contract with Landlord's roofing
contractor.
C. Architectural Structural
1. Storefront work:
a. The configuration of the storefront line, as established by Landlord,
shall be considered the leaseline, beyond which no element of the storefront may
extend. b. All storefront components, including head tracks for sliding doors,
grille roller supports, guid~ and supports for side rolling grilles, etc., shall
be structurally fastened and braced to the building stru '~ure All aluminum
storefront components which remain visible during business hours, such as
sliding. oors and other glazing sections, rolling grilles or ornamental metal
shall have an anodized finish. c. Electronic surveillance or other shoplifting
detection devices and security systems shall be incorpo ated and integrated
within Tenant's storefront. Free-standing "boxes' or "columns" or other exposed
equipment or decals shall be prohibited.
2. Ceilings:
Non-combustible ceilings on a concealed metal suspension system shall be
used throughout all Xxxx'it's public areas. An exposed metal suspension system
may be permitted only if the system consists of 2 x 2' tee grid with regressed
lay-in acoustical tile in horizontal planes only; vertical or sloped use of
exposed tees is prohibited. Taped, painted and/or plaster sprayed gypsum board
ceilings shall be used in conjunction with all storefront soffits. The use of
exposed wood or other combustible material above ceilings or in any )ther attic
spaces is prohibited.
3. Walls:
5/8" Firecode ~L listed) gypsum board shall be used on all party walls
where a one-hour fire resistant separation is required. All interior partitions
shall have gypsum board finish on all sides. A one-hoi fire resistant rating is
required for all steel columns.
4 Floors
a Carpeting and/or other quality floors, such as glazed or unglazed tiles
or hardwood flooring sh~. be used in Tenant's public areas. The reuse of
flooring materials not in compliance with the foregoing is prohibited. b Toilet
rooms and kitchens shall have waterproofed floors and door thresholds.
5 Service Exit Door:
One hinged 3'-O" x 7'-O" x 1-3/4" prime coated, one-hour fire labeled,
hollow metal service exit ~oor, frame, and commercial grade hardware unless
otherwise required by code. The service door shall be installed in a vestibule,
by Tenant at its expense, if required by code.
6 Rubbish Storage:
a Food and beverage service Tenants shall provide rubbish and solid waste
storage room(s) within l~ '~ed premises. b Floor area to be waterproofed with
membrane approved in writing by Landlord.
7 General.
a Landlord shall have the right to locate, both vertically and
horizontally, utility lines, air ducts, . refrigerant lines, drains, sprinkler
mains and valves, and such other facilities, including access p a.els for same,
within the leased premises, as deemed necessary by engineering design and/or
~ode requirements. Landlord's right to locate facilities within the leased
premises shall include the faci ties required by other tenants. Landlord shall
also have the right to locate mechanical and other equipment on the roof over
the leased premises.
b. Notwithstanding anything to the contrary contained in this Lease or in
any of the exhibits attached thereto, all flashing, counter-flashing, roof
penetrations, and roofing repairs shall conform tc the project roofing
specifications. Roof repairs or penetrations required by removal or
relocati()~-I of existing equipment or installation of new equipment (cutting of
roof and deck material and/or repair of same) shall be performed by Landlord's
roofing contractor at Tenant's expense.
Tenant shall enter into a direct contract with Landlord's
roofing contractor.
C. Architectural Structural
D Mechanical
1. Plumbing:
a. Plumbing fixtures and accessories shall be of cornttiercial quality and
shall be of water conserving type.
b. Tenant shall provide a water meter (calibrated in gallons) in an easily
accessible location (or, at Landlord's direction, Tenant will install a remote
reader device).
c. Floor drains shall be provided in toilet rooms and kitchens and/or food
service areas.
d. Tenant shall be obligated to pay to Landlord, at the time Tenant obtains
its construction permit, any capital facility connection charge imposed by the
governmental unit having jurisdiction, together with all other costs and
expenses incurred or to be incurred by Landlord with respect to Tenant's
construction of and connection to water and wastewater facilities, and with
respect to particular plumbing fixtures, in accordance with all applicable
ordinances in effect from time to time.
Refer to Exhibit B-i for additional criteria.
2. Heating, Ventilating and Air Conditioning:
a. If Tenant elects to utilize existing HVAC system, said system shall be
completely upgraded and repaired to like new condition at Tenant's sole cost and
expense
b. If Tenant elects to install a new HVAC system or a supplement to an
existing system, said systems, shall be installed in complete compliance with
criteria presently established for the Shopping Center
Refer to Exhibit B-i for additional criteria.
3. Fire Protection
Hydraulically calculated fire protection sprinkler system, fire hose
cabinets, fire extinguishers and other equipment within the leased premises in
accordance with Landlord's insurance underwriters' Fire Rating Inspection
Bureau, and Code requirements. Since the entire fire protection system for the
project is required to be an inter-related, centrally controlled installation,
Tenant shall cause to be designed and installed, by a qualified sprinkler
contractor acceptable to Landlord, said system within the leased premises in
accordance with Landlord's requirements and shall submit shop drawings,
specifications and hydraulic calculations for the sprinkler system to the
Landlord's Insurance Underwriters' Fire Rating Inspection Bureau for approval
Landlord's approval of the foregoing shall not constitute the assumption of any
responsibility by Landlord for the accuracy of sufficiency thereof, and Tenant
shall be solely responsible therefor. Said work shall be accomplished without
interrupting fire service to remainder of Shopping Center during occupied hours.
E Electrical
1. Tenant, at its expense, shall furnish and install and/or modify the
existing to provide a complete electrical service proceeding from the Landlord's
point of connection as defined in Exhibit B-I to a point within the leased
premises. This work shall include, but not be limited to, furnishing and
installing a fusible disconnect switch at Landlord's/utility company's
distribution equipment and conduit and conductors of sufficient capacity for
Tenant's requirements. All conductors shall be insulated copper wire type THW or
THWN.
2. All fluorescent or incandescent lighting fixtures in Tenant's public
areas, other than track type and decorative fixtures, shall be recessed.
Fluorescent fixtures shall have low brightness, parabolic lenses or diffusers
and be no larger than 2' 0" x 2' 0" in size. Bare lamp fluorescent or
incandescent fixtures may not be used except in concealed areas and/or stock
rooms. Connections to all devices in Tenant's public areas shall be concealed.
3. Emergency lighting shall be provided by Tenant per code to illuminate
stock and/or sales areas and rear exitway during power outage, which lighting
shall be battery-operated, twin-head light pack(s) and/or fluorescent fixtures.
In public areas battery assembly for emergency lights shall be concealed.
4. Circuits serving signs shall be controlled by a time switch.
5 Audio systems installed by Tenant shall be designed such that sound shall
be contained within the leased premises. No speaker or sound emitting device
shall be installed or employed within twenty feet (20') of Tenant's storefront
lease line and shall be directed toward the interior of the space
Tenant shall enter into a direct contract with Landlord's roofing
contractor.
D Mechanical
A. Snace Layout DrawinGS
1. General:
Tenant shall submit quadruplicate copies of its sign drawings and
specifications, including samples of materials and colors, for Landlord's
approval, prior to fabrication of Tenant's sign. Such drawings shall show
location of sign on storefront elevation drawing and shall clearly indicate
color, materials, attachment devices, dimensions and construction details.
2. Criteria:
Only the storefront of the leased premises facing malls and/or courts shall
be identified by a sign. Tenant's sign shall be subject to the following
requirements and limitations:
a. The average height of sign letters or components shall not exceed twelve
inches (12")
b. No part of the sign letters shall hang free of the background.
c. Sign shall not project beyond the leaseline of the leased premises more
than two inches (2 ~) if less than eight feet (8') above finished floor line, or
more than six inches (6") if above eight feet (8').
d. Signs shall be limited to the store name only as set forth in Section
16.01 of this Lease; reference to merchandise or activity is prohibited.
e. Sign letters or components shall not have exposed neon or other lamps.
All light source shall be concealed by translucent material. Surface brightness
of translucent material shall be consistent in all letters and components of the
sign. All edges and the backs shall be fully encased in metal.
f The storefront sign shall not employ the name of the Shopping Center as
part of Tenant's store identification.
g. The outer limits of sign letters, components or insignia shall fall
within a rectangle, the two short sides of which must be at least twenty-four
inches (24") from the side leaselines of the leased premises, the top side of
which must be at least twelve inches (12") from the soffit of the mall fascia
element.
h. All electrical sign components must bear U.L. label. Such U.L. label
must be inconspicuously placed.
3 The following types of signs or sign components are prohibited:
a Signs
b. Signs
c Signs
d. Signs
e. Signs
f Signs panels. g. Shadow-box type signs.
h. Signs employing unedged or uncapped plastic letters with no returns.
i. Any exposed fastenings whatsoever.
j Cloth, paper, plastic or cardboard signs, stickers, decals, or painted
signs of any kind, hung around, on or behind storefront glass or within
storefront space.
k. Back-illuminated signs.
I. Free-standing signs. employing moving or flashing lights or any audible
or moving components. employing exposed raceways, ballast boxes or transformers.
exhibiting manufacturer's name, stamps or decals. employing painted and/or non-
illuminated letters. employing luminous-vacuum formed plastic letters. of box or
cabinet type, employing transparent, translucent or luminous plastic background
4 The service door of the leased premises shall be identified with a
plastic sign, uniform to all Tenants, in accordance with Center Management
criteria.
SECTION VI. PROCEDURE SCHEDULES AND OBLIGATIONS FOR THF COMPLETION OF PLANS
AND SPECIFICATIONS BY TENANT
All prints, drawing information and other material to be furnished by
Tenant to Landlord for approval as required in this Exhibit shall be addressed
to Landlord at 000 Xxxx Xxxx Xxxx Xxxx, P.O. Box 200, Bloomfield Hills, Michigan
Refer to Exhibit B-I for additional criteria.
A. Space Layout Drawings
Approvals of such documents shall be deemed invalid unless given by
Landlord in writing. ~ [DELETED] If Tenant shall not have commenced construction
with respect to such work or alterations within such one hundred twenty (120)
day period (or shall not be diligently pursuing such work or alterations to
completion), Tenant ~ to resubmit the applicable plans and specifications to
Landlord for re-approval prior to commencement or continuation of such work or
alterations. All noticeS1 drawing information and other material furnished by
Landlord to Tenant under this Exhibit or pursuant to Sections 5.01 or 5.02 of
the Lease may be effectively submitted to Tenant by mailing the same to Tenant
at the address set forth on the Data Sheet on page 1 of the Lease or to Tenant's
architect if Tenant has provided Landlord with such an address, notwithstanding
any contrary or additional requirement contained in any other section of the
Lease
1.Following the execution of this Lease, Landlord shall furnish Tenant with
one (1) set of prints of Space Layout Drawings giving technical and design
information for the leased premises, provided that Landlord shall not be
responsible for the accuracy, efficacy or sufficiency of said Space Layout
Drawings and Tenant shall be solely responsible for all technical and other
examinations of the leased premises and shall be exclusively responsible with
respect to verification of actual field conditions and actual field measurements
and a full review of all technical and engineering requirements with respect to
the leased premises and Tenant's construction thereon.
B Workin~ Drawints and Snecifications
1.Within thirty (30) days' from either of the following dates, whichever
shall be the later to occur (a) receipt by tenant of Space Layout Drawings or
(b) execution of this Lease by the parties hereto, Tenant shall engage an
Architect registered in the state in which the Shopping Center is located for
the purpose of preparing Working Drawings and Specifications for the leased
premises Working Drawings and Specifications shall be prepared in strict
compliance with the Construction Criteria and requirements as set forth in
Section IV of this Exhibit and shall adhere to the design as indicated in
Section 5.01(b) of the Data Sheet of the Lease to which this exhibit is attached
2 All Working Drawings and Specifications prepared by Tenant's Architect
shall be submitted by Tenant. in the form of one (1) set of reproducible prints
(i.e., sepias) and one (1) set of prints, along with a Letter of Certification
by Tenant's Architect that such drawings and specifications comply with Section
5.01(b) of the Data Sheet and Landlord's Construction Criteria. Any required
revisions to such Working Drawings and Specifications shall be prepared and
resubmitted by Tenant to Landlord within ten (10) days of receipt of notice from
Landlord.
3 Tenant shall pay all fees of its Architect, and shall pay to Landlord for
Coordination and Administrative Services a fee based on the floor area of the
leased premises in accordance with the following schedule
Floor Area of
Lease Premises
1 to 500 sq. ft. 900.00
501 to 750 sq. ft. 975.00
751 to 1,500 sq. 1,150.00
1,501 to 3,500 sq. 1,700.00
3,501 to 6,000 sq. ft. 2,150.00
6,001 to 10,000 sq.ft. 2,750.00
10,001 sq. ft. and over 3,300.00 + $.30/SQ. XX.xx excess
OF 10,000 sq. ft.
Tenant's payment of the foregoing fee shall be payment to Landlord in
connection with Landlord's review of the various plans and specifications
submitted by Tenant and in connection with Landlord's facilitation and
coordination of Tenant's actual construction in the leased premises; however,
Landlord shall not be in any way responsible or liable with respect to the
accuracy, sufficiency, or feasibility of Tenant's plans, and Tenant shall be
totally responsible for same
Refer to Exhibit B-I for additional criteria.
C Comnletion Schedule:
1 The following information regarding Tenant's completion schedule shall be
completed by Tenant and delivered to Landlord upon Tenant's execution of this
Lease:
a Working Drawings and Specifications submittal date (thirty (30) days
after receipt of fully-executed Lease)
b. Submission of Working Drawings and Specifications to the local building
department for building permit concurrent with submittal to Landlord (allow four
(4) weeks for approval)
c Construction start date
d. Merchandise date
e. Store opening date
f. Commencement date
Notification may be sent by Landlord to Tenant, at Landlord's option, for
completion of any of the preceding dates not listed on the Completion Schedule
submitted by Tenant. Any such notification shall be returned completed to
Landlord no later than twenty-one (21) days following Tenant's receipt thereof
SECTION VI. PROCEDURE. SCHEDULES AND OBLIGATIONS FOR THE CONSTRUCTION OF
THE LEASED PREMISES BY TENANT.
A Commencement of Construction
1 Tenant shall commence demolition and/or construction of its leased
premises and shall carry such construction to completion with all due diligence
The failure of Tenant to comply with procedures and schedules set forth in this
Exhibit, or to commence or complete the construction of the leased premises
prior to the date of commencement of the term of the Lease to which this Exhibit
is attached and made a part shall have no effect whatsoever upon the
commencement of said term, which shall in any event commence at the time
provided for in Section 1.02 of said Lease
B. General Requirements
1. Tenant shall submit to Landlord via Certified or Registered Mail, at
~ast five (5) days prior to the commencement of construction, the following
information:
a. The names and addresses of the General, Mechanical and Electrical
Contractors Tenant intends to engage in the construction of its leased premises.
b. The date on which Tenant's construction work will commence, together
with the estimated date of completion of Tenant's construction work and
fixturing work, and date of Tenant's projected opening for business in the
leased premises.
c. Evidence of insurance as called for hereinbelow.
d. Itemized statement of estimated construction costs, including
architectural, engineering and contractor's fees.
e. [DELETED]
2. Tenant shall engage the services of such bondable, licensed contractors
who will work in harmony with Landlord's contractors and the contractors
employed by the other tenants so that there shall be no labor disputes which
would interfere with the operation, construction and completion of the Shopping
Center or with any work being carried Out therein.
3. Construction shall comply in all respects with applicable Federal,
State, County and/or City statutes, ordinances, regulations, laws and codes. All
required building and other permits in connection with the construction and
completion of the leased premises shall be obtained and paid for by Tenant.
Landlord's review of Tenant's Working Drawings and Specifications shall be for
the purpose of ascertaining compliance with the requirements of this Lease and
Landlord's requirements, and shall in no event extend to any confirmation or
authorization, express or implied, that Tenant's Working Drawings and
Specifications have been prepared in accordance with the requirements of
applicable laws, codes, ordinances and regulations, including, without
limitation, the Americans with Disabilities Act, and Tenant shall be solely
responsible with respect to all necessary compliance with such laws, codes,
ordinances and regulations.
Tenant shall provide temporary heat if required.
Tenant shall provide temporary electrical if required.
Tenant shall apply and pay for all utility services.
Tenant shall cause its Contractor to provide warranties for not less than
one year against defects in workmanship, materials and equipment.
4. Tenant's Work shall be subject to the inspection of Landlord, its
consultants, and its supervisory personnel
5. Upon the expiration of one half (1/2) of the lease term, Tenant shall,
within eh-- days after direction from Landlord, submit Working Drawings and
Specifications as set forth in Section V of this Exhibit showing the work to be
performed by Tenant to completely remodel and refurbish the leased premises
Tenant will cause such work to be performed not later than i-i- days following
the date of Landlord's direction in accordance with Working Drawings and
Specifications approved by Landlord ~ remodeling work to be done by T~nant
All such work shall be subject to and shall be carried out in accordance
with the provisions of this Lease, including, without limitation, the provisions
of Section 5.01(b) governing construction of the leased premises and the
remedies of Landlord in the event of noncompliance by Tenant, including, but not
limited to, termination of this Lease as therein set forth. Without limiting the
foregoing, in the event that Tenant shall fail to perform such remodeling
work, or if Tenant shall fail to operate the leased premises as required in the
Lease or shall fail to surrender possession of the leased premises to Landlord
as required in the Lease or under law, Landlord shall have the right to erect,
at Tenant's expense, a storefront barricade in front of the leased premises,
which barricade shall not be removed except upon Landlord's prior written
consent and with Tenant paying the cost of such removal.
C. Landlord's Right to Perform Work
1.Landlord shall have the right to perform, on behalf of and for the
account of Tenant, subject to reimbursement of the cost thereof by Tenant, any
and all of Tenant's Work which Landlord determines in its sole discretion should
be performed immediately and on an emergency basis for the best interest of the
project, including without limitation, work which pertains to structural
components, mechanical, sprinkler and general utility systems, roofing and
removal of unduly accumulated construction material and debris
D. Temnorarv Facilities Durin~ Construction
1.Tenant shall pay for all temporary utility facilities, and the removal of
debris, as necessary and required in connection with the demolition and/or
construction of the leased premises. Storage of Tenant's Contractors'
construction material, tools, equipment and debris shall be confined to the
leased premises and in areas which may be designated for such purposes by
Landlord. In no event shall any material or debris be stored in the mall or in
service or exit corridors.
2 During construction, Landlord may provide temporary electrical service in
an area designated by Landlord Tenant shall ~ --.- ~ to connect temporary lines
to the power source for service to its premises. The cost to Tenant for this
service will be $450.00 per month or twenty-five cents (25C) per square foot of
leased area per month, whichever is greater. Payment is to be remitted to
Landlord by the first of each month after service is initiated. In the event
that the leased premises presently contain a metered electrical service, Tenant
shall utilize the existing service and reimburse Landlord on the metered basis.
During initial construction, Tenant fixturing and merchandise stocking, Landlord
may require Tenant to utilize trash removal service from designated truck
courts. Tenant is responsible for breaking down boxes and placing trash in
containers in the designated truck court areas.
The cost to Tenant for this service will be on a monthly basis and payment
is to be remitted by the first of each month after service is initiated on the
following basis:
Floor Area of Leased Premises Monthly Amount in $
30,001 sq. ft. to 460.00
50,000 sq. ft.
20,001 sq. ft. to 410.00
30,000 sq. ft.
15,001 sq. ft. to 360.00
20,000 sq. ft.
10,001 sq. ft. to 320.00
15,000 sq. ft.
5,001 sq. ft. to 10,000 sq. ft. 280.00
2,001 sq. ft. to 5,000 sq. ft. 240.00
2,000 sq. ft or less 200.00
At any time, as determined by Landlord, Landlord may discontinue trash
removal service and Tenant shall assume responsibility therefor. All such work
shall be performed by contractors approved by Landlord.
E Construction Comnletion
1. A Letter of Certification by Tenant's Architect stating that the store
has been satisfactorily completed in compliance with the Landlord Approved
Working Drawings. Any deficiencies should be outlined and sent to Tenant's
contractor for correction within thirty (30) days.
F. Landlord's Letter of Accentance
1Upon the completion of Tenant's construction and fixturing work, and upon
written request to Landlord from Tenant, Landlord shall issue a Landlord's
Letter of Acceptance of said premises. The issuing of such a Letter shall be
contingent upon Tenant satisfying all of the following conditions (which
conditions shall, in any event, be satisfied by Tenant as a obligation
hereunder):
a. The satisfactory completion by Tenant of the work to be performed by
Tenant under Section III of this Exhibit including correction of deficiencies
and inconsistencies with approved Working Drawings and Specifications.
b Furnishing by Tenant to Landlord of all waivers of liens and sworn
statements from all persons performing labor and/or supplying materials in
connection with such work showing that all of said persons have been compensated
in ~l.
C Submittal by Tenant to Landlord of a detailed breakdown of Tenant's final
and total construction costs
d. Submittal by Tenant to Landlord of warranties for not less than one (1)
year against defects in workmanship, materials and equipment, if so required by
Landlord.
e. Full payment by Tenant of all sums due Landlord for items of work
performed by Landlord on behalf of Tenant, as outlined in this Exhibit.
f The issuance of a Certificate of Occupancy by the Building and Safety
Department of the local unit of government.
2. Upon written request from Tenant, Landlord shall also inspect that
portion of Tenant's Work which shall have been completed up to the date of such
request, and upon satisfaction of all of the foregoing conditions set forth in
paragraph 1 above (other than issuance of a Certificate of Occupancy) with
respect to the portion of Tenant's Work so com~eted, Landlord shall issue a
Landlord's Letter of Acceptance with respect to such completed work. No
payments, if any, required to be made by Landlord to Tenant shall be made unless
and until Tenant shall have obtained a current Letter of Acceptance with respect
to all of Tenant's Work completed as of the date of such required payment.
G Payments bv Tenant
1.Tenant shall pay Landlord all sums due Landlord for items of work
performed or expenses incurred by Landlord on behalf of Tenant within ten (10)
days after receipt by Tenant of a statement therefor from Landlord. Such items
of work and expenses incurred include, but are not necessarily limited to, the
following:
a. All items called for as Tenant's cost obligations in this Exhibit.
b. In the event that the leased premises are located in a retail
development, or in an expansion wing of a retail development, which development
or expansion wing shall not yet have opened for business to the public at the
time of the commencement by Tenant of its construction hereunder, Tenant shall
be obligated to pay to Landlord Tenant's pro rata share of costs and expenses
incurred by Landlord in arranging for a final cleaning of and debris removal
from the common areas and vacant premises in preparation for the grand opening
of the retail development or of such expansion wing. Tenant's pro rata share
shall be computed on the basis that the square footage of the leased premises
bears to the square footage of gross leased and occupied area in the Shopping
Center (or in the expansion wing of the Shopping Center, as applicable) as of
the earlier of: the date of the opening of the Shopping Center (or the expansion
wing, as applicable), or the date that Tenant is notified of its pro rata share
of such costs and extenses.
2 in the event Tenant fails to open its store for business to the general
public upon the commencement date of the term of the Lease, or fails to complete
the remodeling required under Section~'~1 of the Lease within ninety (90) days
following such commencement date (to the extent that this Lease represents a
renewal lease for the same premises as are presently occupied by Tenant), then
in addition to all other fees and charges hereunder, Tenant shall pay a fee to
Landlord in accordance with the following schedule for additional coordination,
administration, and other services, which fee shall be paid for each full
calendar month after the commencement date, or after the expiration of such
ninety (90) day period, as applicable (with periods of less than one month to be
prorated), that Tenant shall have failed to open its store for business, or
shall have failed to complete its required
remodeling as set forth above, as applicable. The payment of the foregoing
fee shall not excuse Tenant from default for failure to open, or failure to
remodel, as applicable, shall not preclude the exercise of default remedies by
Landlord, and shall not render Landlord liable in any manner for or in
connection with Tenant's construction.
Floor Area of Leased Premises Applicable Amount in $
1 to 500 sq. ft. 2,500.00
501 to 750 sq. ft. 3,000.00
751 to 1,500 sq. ft. 4,000.00
1,501 to 3,500 sq. ft. 5,500.00
3,501 to 6,000 sq. ft. 7,000.00
6,001 to 10,000 sq. ft. 8,000.00
10,001 sq. ft. and over 9,500.00 + $.75per sq.ft. in excess
of 10,000 sq ft
H Insurance
1Tenant shall secure, pay for and maintain, or cause its Contractor(s) to
secure, pay for and maintain during construction and fixturing work within the
leased premises, all of the insurance policies required herein, in the amounts
as set forth below, and such insurance as may from time to time be required from
city, county, state or federal laws, codes, regulations or authorities, together
with such other insurance as is reasonably necessary or appropriate under the
circumstances. Tenant shall not permit its Contractor(s) to commence any work
until all required insurance has been obtained and certificates of such
insurance have been
delivered to Landlord
2. Tenant's General Contractor's and Subcontractors' Required Minimum
Coverages and Limits of Liability.
a. Worker's Compensation, as required by state law, and including
Employer's Liability Insurance with a limit of not less than $2,000,000, and any
insurance required by any Em~oyee Benefit Acts or other statutes applicable
where the work is to be performed as will protect the Contractor and
Subcontractors from any and all liability under the aforementioned acts. b.
Comtnercial General Liability Insurance (including Contractor's Protective
Liability) in an amount not less than $2,000,000 for any one occurrence whether
involving personal injury liability (or death resulting therefrom) or property
damage liability or a combination thereof with an aggregate limit of $2,000,000.
Such insurance shall provide for explosion, collapse and underground coverage.
Such insurarice shall insure Tenant's General Contractor against any and
all claims for personal injury, including death resulting therefrom and damage
to or destruction of property of any kind whatsoever and to whomsoever belonging
and arising from his operations under the Contract and whether such operations
are performed by Tenant's General Contractor, Subcontractors, or any of their
Subcontractors, or by any one directly or indirectly employed by any ~ them.
C. Comprehensive Automobile Liability Insurance, including the ownership,
maintenance, and operation of any automotive equipment, owned, hired, and
non-owned, in the following amounts:
(1) Bodily injury, per occurrence for personal
injury and/or death $2,000,000
(2) Property Damage Liability $2,000,000
Such insurance shall insure the General Contractor and/or Subcontractors
against any and all claims for personal injury, including death resulting
therefrom and damage to the property of others caused by accident and arising
from its operations under the Contract and whether such operations are performed
by the General Contractor, Subcontractors, or by anyone directly or indirectly
employed by any of them
3 Tenant's Protective Liability Insurance.
Tenant shall provide Owner's Protective Liability Insurance as will insure
Tenant against any and all liability to third parties for damages because of
personal injury liability (or death resulting therefrom) and property damage
liability of others or a combination thereof which may arise from work in
connection with the leased premises, and any other liability for damages which
Tenant's General Contractor and/or Subcontractors are required to insure against
under any provisions herein. Said insurance shall be provided in minimum amounts
as follows:
a. Bodily injury, per occurrence for personal injury
and/or death $2,000,000
b. Property Damage Liability $2,000,000
4 Tenant's Builder's Risk Insurance -- Completed Value Builder's Risk
Material Damage Insurance.
Coverage:
Tenant shall provide an "All Physical Loss" Builder's Risk insurance policy
on the work to be performed for Tenant in the leased premises as it relates to
the building within which the leased premises is located. The policy shall
include Tenant, its Contractor and Subcontractors, Landlord, and the partners
and agents of Landlord, as insureds as their interests may appear. The amount of
insurance to be provided shall be 100% of the replacement cost.
5. All such insurance policies required under this Exhibit, except as noted
above, shall include Landlord, its Managing Agent,
its Architect, its General Contractor, and the partners and agents of
Landlord, and the partners of such partners, and any other parties in interest
designated by Landlord, as additional insureds; except Worker's Compensation
Insurance, which shall contain an endorsement waiving all rights of subrogation
against Landlord, its Managing Agent, its Architect, General Contractor,
partners and agents, and the partners of such partners, and any other parties in
interest designated by Landlord.
Certificates of Insurance shall provide that no reduction in the amounts or
limits of liability or cancellation of such insurance coverage shall be
undertaken without prior thirty (30) day written notice to Landlord.
The insurance required under this Exhibit shall be in addition to any and
all insurance required to be procured by Tenant pursuant to Section 11.01 of the
Lease to which this Exhibit is attached.
d. All electrical wiring systems shall be in conduit. The use of "Bx" or
"Romex" is not permitted.
WOODFIELD
EXHIBIT B-1
UTILITIES
(Attached to and forming a part of Exhibit B;
Section references correspond to the Section numbers set forth in
Exhibit B.)
SECTION II: LANDLORD'S WORK.
A. Buildin~ Utilities and Services
1. Points of connection for Tenant's use, to the following utilities in
location and sizes determined by Landlord.
a. Sanitary sewer stub.
b. Plumbing vent stub.
c. Domestic cold water stub.
d. Fire protection sprinkler system main.
e. Central gas utility company metering manifolds.
f. Central electric utility company distribution centers.
g. Central telephone company distribution boards.
h. Duct shafts containing fresh air, relief air and toilet exhaust ducts to
serve first level tenants stubbed in central locations and terminating to the
atmosphere.
SECTION IV: CRITERIA - TENANT'S WORK.
The requirements, criteria, and/or outline specifications as set forth
herein represent minimum standards for the design, construction, and finish of
the mechanical and electrical systems installed by Tenant.
A. Mechanical
1. Plumbing:
a. Plumbing fixtures and accessories shall be of commercial quality and
shall be of a water-conserving type. b. Water heaters shall be electric, except
Food and Beverage Service Tenants where gas units may be permitted if gas is
available. c Floor drains shall be provided in toilet rooms, kitchens, and/or
food service areas. d. Food and Beverage Service Tenants shall further provide:
(i) Cast-iron grease traps located within the leased premises.
(ii) Gas service and branch line extension from the gas meter center to and
within the leased premises.
e. Every space shall have at least one (I) toilet room. All spaces 3,000
square feet or larger must provide public accessible toilet rooms (male and
female). Said toilet rooms must comply with the state of Illinois plumbing code.
2 Heating, Ventilating, and Air Conditioning:
a Tenant shall install an all-electric heating and air-conditioning system.
(i) Each Tenant shall provide its own individual system (i.e., heating,
ventilation and air-conditioning equipment and controls, ducts, insulation,
water supply, venting and drainage, fresh air supply and return, exhaust and
make-up air, dehumidification and humidification equipment, water saving
equipment and all structural, plumbing and electrical work related thereto).
(ii) All equipment shall be contained within Tenant's premises except
rooftop air~ooled condensing units, make-up air units, and hood exhausters. Such
equipment located on the roof shall only be located in areas designated by the
Landlord to specified heights, and in accordance with Landlord's standard
details for roof-mounted equipment. All refrigerant piping shall be installed in
ceiling space and extended through roof adjacent to the equipment. Suction lines
shall be insulated.
(iii) Tenant's air handling units shall be floor-supported in Tenant's
space independent of Landlord's structural system.
b. Toilet rooms shall be exhausted per code. All roof mounted units for
second level Tenants shall be of aluminum construction.
C. Ductwork: Fabricated of galvanized sheet metal per American Society of
Heating, Refrigerating and Air-Conditioning Engineers' standards, as outlined
for "Low Pressure Ducts't in the latest edition of their "Guide and Data Book~'.
d. There shall be a provision to bring in 100~ fresh air for cooling
purposes anytime the outside temperature is below 600F. Such provision shall be
operated by automatic temperature controls
e. All first level outside air, relief air, exhaust air and other ductwork
requiring outdoor intake or venting except process requirements shall be
extended by Tenant to the common tenant service shafts. All outside air, relief
air and general exhaust ~oilet Room, Storage Room, etc.) ductwork shall connect
with backdraft dampers to sheet metal housings, provided at the base of the
common shafts.
f. All process exhausts, hood exhausts, equipment vents, and other
contaminated exhausts permitted by Landlord shall discharge vertically to the
atmosphere, and be located a minimum of 20 feet horizontally from any fresh air
intakes, properly dispersing odors or fumes away from same.
g. All supply and fresh-air ductwork shall be insulated, and all ductwork
on all levels shall be installed in concealed space above ceilings. Space
between ceiling and structure shall not be used as a return air plenum.
h. All air supplied to Tenant's area by its equipment shall not migrate to
the public mall or adjacent spaces.
i. Standards of design and construction shall be in accordance with latest
ASHRAE and SMACNA Guides.
j.Tenant shall provide all process requirements, hood exhausts, make-up air
supply, equipment vents and other contaminated exhausts. When permitted by
Landlord they shall extend in ductwork through the roof. This ductwork shall be
located in special shafts, built by Tenant, at locations and of construction
designated by Landlord.
k.Ductwork which passes through service corridor and demising walls shall
have U.L. approved fire dampers located in ductwork at wall. Provide approved
access doors for such dampers.
l. Tenant roof equipment shall be located in areas designated by Landlord
to specified heights and in accordance with Landlord's standard details for
equipment on the roof.
(i) Should weight or location of equipment by Tenant require supports,
screens, cat walks or roof hatch and ladder, they shall be provided by Tenant in
accordance with standard details. Landlord shall determine when and where the
above shall be required.
(ii) All abo"e equipment shall be finish painted in accordance with
Landlord's paint schedule and specifications.
(iii) Tenant's roof equipment shall be clearly identified with Tenant's
name.
B. Electrical
1. Power available for the leased premises shall consist of the following
voltages:
a.For tenants located in buildings "D, F, F, G, 3 and K":
(i) Tenant spaces of 6,000 square feet and smaller will be provided with
120/208 volt, 3 phase, 4 wire. (ii) Tenant spaces in excess of 6,000 square feet
will be provided with 2771480 volt, 3 phase 4 wire.
b.For tenants located in buildings "L and N":
(i) All tenants will be provided with 277/480 volt, 3 phase, 4 wire.
2. Installation or modification of the existing system shall conform to the
following:
a. Power for Tenant's heating, ventilating and air conditioning equipment
(single and/or three phase), including electric duct heaters, unit heaters,
strip heaters, etc. will be taken from 480 volt, 3 phase, 3-wire rain tight
distribution panelboards located on the roof. Landlord will furnish and install
a plug-in fusible switch (mm. 60 amp) at Tenant's expense. Tenant shall furnish
and install fuses, all wiring and conduit from rooftop panelboards,
transformers, starters, relays, switches, connections, etc., required for
Tenant's equipment.
b.Dry type transformer (if required) shall be used for all 1201208 volt
requirements
c.Panelboards shall be designed for 20% minimum spare ampacity (0ased on
connected load) and 20% spare breaker space.
STANDARD TOYS INTERNATIONAL RIDER
Section 1.01(a): On page 51, line 11, after the word any", insert "Landlord
represents that such covenants, restrictions and easements of record and the
terms and provisions of any such reciprocal easement and/or operating agreements
shall not materially interfere with Tenant's use of the leased premises
generally pursuant to Section 7.01 hereof."
Section 1.01(1))On page Si, line 27, after the word "Landlord.", insert
"Landlord shall use reasonable efforts to locate such facilities below the
floor, above Tenant's finished ceiling and/or ~thin or abuning dividing walls."
Section 1.02: At the end of the Section, insert "In the event Landlord
elects to add a departinent store or cause an expansion or contraction of the
Shopping Center or the regional retail development which directly affects all or
any portion of the leased premises, then Landlord upon one hundred eighty (180)
days prior notice in writing to Tenant may termmate this Lease. During the one
hundred eighty (180) day period Landlord shall offer to Tenant such alternative
location of approximately the same square footage and frontage as may be
available in the Shopping Center from time to tirne. Landlord shall not exercise
its rights under this paragraph on more than one (1) occasion during the term of
this Lease Tenant shall not be obligated to relocate or to have this Lease
terminate during the period between November 15 and the next following January
31 pursuant to this Section 1.02. In the event the parties agree on a specific
location, then this Lease shall be amended by substituting the new location for
the present location and minimum rent, the percentage rent break:point, and
Merchant's Association or promotional charges shall be
proportionately adjusted. Tenant shall cause all construction in the new
premises to be completed and open for business within ninety (90) days following
delivery of the new premises to Tenant. In the event of relocation during the
first eight (8) leas~ years of the lease term, thirty (30) days following
Tenant's opening in the new premises and submission to Landlord of waivers of
lien covering Tenant's Work therein, Landlord shall reimburse to Tenant the
reasonable costs paid by Tenant in constructing Tenant's Work in the new
premises, plus incidental relocation expenses, such incidental relocation
expenses, not to exceed Ten Thousand Dollars ($10,000.00). Rent and other
charges shall be abated during any period from Tenant's closing in the original
premises to the date Tenant is obligated to reopen in the new premises. In the
event Landlord and Tenant are unable to agree on an alternative location, this
Lease shall terminate at the end of the said one hundred eighty (180) day period
In the event of such temlitiation or in the event of relocation after the first
eight (8) lease years of the lease term, within thirty (30) days following the
date that Tenant shall have vacated the premises, Landlord shall pay to the
Tenant a sum equal to the then unamortized cost of Tenant's leasehold
improvements, such amortization to be on the straight line basis over the ftill
term of the Lease. Tenant shall furnish to Landlord such backup information as
(iii) Bulk sales of distressed merchandise to jobbers, liquidators or the
like not t Landlord may reasonably require. Tenant shall deliver possession of
the leased prernises to Landlord on or before the termination and/or relocation
date in the condition required in this Lease and subject to all charges which
are due and owing or which shall be accrued up to such date (which charges shall
be paid to Landlord within thirty (30) days of such date). Tenant shall be
released from any and all flirther obligations pursuant to this Lease accruing
or arising from and after the date of termination with respect to the vacated
premises, however, in the event of relocation, Tenant shall remain liable for
such obligations and charges accruing under this Lease after the date of such
relocation."
Section 2.02(1))On page S2, line 41, after the word "be", delete the period
and insert "(or refunded to Tenant if Landlord is holding any overpayment
following expiration of the lease term)
At the end of the Section, insert "Notwithstanding the foregoing, if the
commencement date of the lease term is other than February 1, then the
percentage rental covering the first lease year shall be paid as follows: no
percentage rental shall be paid to Landlord during the first lease year; rather
Tenant's Gross Sales in excess of Minimum Gross Sales shall be determined for
the first twelve (12) calendar months following the commencement date of the
lease term, and percentage rental shall be paid on such excess prorated as to
the number of days of a full calendar year which are included in said first
lease year. Such percentage rental shall be payable on or before the last day of
the thirteenth (13th) month next following the commencement date of the lease
term."
Section 2.03: At the end of the Section, insert 'Notwithstanding anything
to the contrary contained in this Lease to the contrary, the following shall be
excluded from the definition of Gross Sales
(i) Sales to employees at discount to the extent same shall not exceed two
and one-half percent (2-1/2%) of Gross Sales per annum,
(ii) Sums and credits received in the settlement of claims for loss of or
damage to merchandise;
(iii) Bulk sales of distressed merchandise to jobbers, liquidators or the
like not t
(iv) Gift certificates, or like vouchers, until such time as the same been
converted into a sale by redemption;
(v) At cost alteration workroom charges and at cost delivery charges.
(vi) Receipts from public telephones, stamp machines, public toilet locks,
~nd vending machines permitted by Landlord and installed solely for the use of
Tenant's employees,
(vii) Receipts from so-called "layaway" sales to the extent payments
thereon have not been received by Tenant; and
(viii) Interest, service or sales carrying charges or other charges,
xxxx~er denominated, paid by customers for extension of credit on sales
(provided credit card company charges shall not be excluded from Gross Sales)."
Section 2.05: On page 54, line 22, after the sentence ending with the word
"Section", insert If such taxes and assessments include assessments which are
being paid by Landlord in installments, then only the installments paid by
Landlord during a lease year shall be included in taxes and assessments for such
lease year.
On page 54, line 30, after the word "year", insert "(including the
percentage figure used for determining same)".
On page 54, line 36, in place of the deleted language, insert "installments
On page 54, line 37, after the word "hereunder", delete the period and
insert "(or refunded to Tenant if Landlord is holding any excess following
expiration of the lease term)."
On page 54, line 47, after the sentence ending with the word "relates",
insert "Upon Tenant's request, but no more often than once during each lease
year, Landlord shall supply Tenant with a copy of the tax xxxx pertaining to the
then current or prior (as requested by Tenant) fiscal period of the taxing
authority."
At the end of the Section, insert "Notwithstanding the foregoing, Tenant's
obligation hereunder shall not include the payment of any income tax of general
applicability to be paid by' Landlord, excepting that Tenant shall be obligated
for such tax to the extent such tax is assessed in lieu of or in substitution
for existing ad valorem taxes on real property which are hereafter modified,
abolished or repealed in whole or in part."
Section 2.06: On page S4, line 57, after the word "rent", insert
"(excluding notices of default)".
Section 3.01:
by Tenant". reasonably acceptable to". On page S5, line 8, after the word
"local", insert "sales"
On page 55, line 11, after the word "include,", insert "to the extent
maintained
On page S5, line 20, in place of the deleted language, insert "other device
(iii) Bulk sales of distressed merchandise to jobbers, liquidators or the
like not
in the ordinary course of Tenant's business;
On page S5, line 21, after the word "be", insert "reasonably"
On page S5, line 22, in place of the deleted language. insert "three (3)"
Section 3.02: On page S5, line 32, in place of the deleted language, insert
"Tenant's chiet financial or other executive officer".
On page S5, line 34, in place of the deleted language, insert "ten (10)"
On page S5, line 36, after the word "require.". insert "If Landlord makes
an oral request to Tenant's corporate headquarters by telephone for Tenant's
monthly Gross Sales figure sooner than ten (10) days following the end of the
month in question, and at the time of Landlord's request Tenant has such figure
available, then Tenant agrees to immediately and orally inform Landlord of the
Gross Sales figure in question.
At the end of the Section, insert "Landlord shall use reasonable efforts to
keep Tenant's Gross Sales information confidential provided Tenant agrees that
same may be disclosed to Landlord's agents, its partners, the partners of such
partners, Landlord mortgagees or prospective mortgagees or to any purchaser or
prospective purchaser of all or any portion of Landlord's interest in the
regional retail development."
Section 4.01. On page S5. line 48. in place of the deleted language, insert
"Tenant"
On page S5, line 52, in place of the first deletion, insert "Tenant"
On page S5, line 52, in place of the second deletion, insert "ten (10)"
Section4.02 On page 55, lines 54 and 59, in place of the deleted "three
(3)", insert "ten (10)" On page S5, line 59, in place of the first deletion,
insert "Tenant"
" u n d e r st a t e d ".
( 2 % ) ".
( 4 % ) "
O n p a g e S 5, lines 63 and 68, in place of the deleted "at variance",
insert
On page S5, line 63, in place of the deleted percentage, insert "two
percent
On page S5, line 68, in place of the deleted percentage, insert "four
percent On page 55, line 68, after the word "more", insert "on three (3) or more
occasioris during the lease term".
On page S6, line 5, after the word "in", insert "Section 19.02 of".
On page 56, line 13, after the word "auditor", insert "which auditor shall
be an independent certified public accountant".
Section 5.01(1)):On page 56, line 48, after the word "by", insert "thirty
(30) days' written"
On page S6, lines 49, after the word "Tenant,", insert "and an opportunity
for Tenant to cure during such thirty (30) day period,".
On page S6, line 50, after the word "in", insert "Section 19.02 of".
On page S6, line 52, after the word "upon", insert "fifteen (15) days'
written"
On page 56, line 52, after the word "Tenant,", insert "and an opportunity
for Tenant to cure during such fifteen (15) day
period,".
On page 56, line 67, after the word "upon", insert "fifteen (15) days'
written
On page S6, line 67, after the word "Tenant", insert "and an opportunity
for Tenant to cure during such fifteen (15) day period".
On page S7, line 1, in place of the deleted word, insert "adequately".
At the end of the Section, insert "If Landlord shall fail to respond to
Tenant s plans and specifications within fifteen (15) days following receipt
thereof, then the comniencement date set forth in the Data Sheet shall be
extended one (1) day for each day beyond such fifteen (15) day period that
Landlord fails to respond."
Section 5.02(a): At the end of the Subsection, insert "In no event shall
Landlord provide Tenant with a Notice of Availability under this Lease until
after Tenant has received a fully executed Lease from Landlord and until
Landlord's Work has been substantially completed."
Section 5.02(c): On page S7, line 39, after the word "possession.", delete
the period and insert "except for defects in Landlord's Work of which Tenant
notifies Landlord in writing within thirty (30) days from date of possession and
(if the leased premises have not previously been occupied) latent defects in
Landlord's Work of which Tenant notifies Landlord in writing within six (6)
months from the date of taking possession (which defects Landlord shall promptly
undertake to correct)".
Section 6.01 At the end of the Section, insert "Notwithstanding the
foregoing, Tenant shall be permitted to make minor, nonstructural alterations to
the interior of the leased premises not to exceed Fifty Thousand and 00/l00ths
Dollars ($50,000.00) during any twelve (12) month period, provided that such
alterations shall not change the original design of the leased premises as
originally approved by Landlord, and further provided, Tenant shall not be
permitted to make any alterations whatsoever to the storefront, signage or
configuration or size of the sales area without Landlord's prior written
approval Tenant shall give Landlord fifteen (15) days' written notice prior to
undertaking any alterations which Tenant is permitted to make pursuant to this
paragraph."
Section 6.02. On page S8, line 14, after the word "iniprovements.", delete
the period and insert provided Tenant may remove trade fixtures installed by
Tenant upon expiration of the lease term if Tenant shall not be in default and
repairs any damage caused by installation or removal of same
Section 6.03: At the end of the Section, insert "In exercising its rights
under this Section. Landlord shall use reasonable efforts to minimize any
interference with access to or visibility of the leased premises from the
enclosed mall area.
Section 7.02: On page S8, line 56, in place of the deleted language, insert
"an adequate"
On page 58, line 57, in place of the deleted language, insert "an adequate"
On page S8, line 57, after the word "merchandise", delete the period and
insert "provided Tenant shall only be obligated to open and operate during those
days and hours during which at least seventy percent (70%) of the other Shopping
Center tenants (excluding banks, theatres and food operators) are similarly
obligated and in no event shall Tenant be obligated to open and operate on
Christmas Day or Thanksgiving Day."
On page 58, line 58, after the word "shall", insert "following four (4)
hours' notice to Tenant (which notice may be given by telecopier)".
On page 58, line 67, after the word "designate", delete the period and
insert "but no earlier than an hour prior to required opening or later than an
hour following permitted closing."
On page 59, line 2, after the word "improvements", insert "(excluding
structural changes or improvements which Landlord is responsible for pursuant to
Section 10 01)".
On page S9, line 11, after the word "discretion", delete the period and
insert provided, however, that Tenant may use and store such substances in the
leased premises as are normally and customarily used by retail commercial
establisliments (i.e., ink, ink removers and cleansers) if such use and storage
is in compliance with all laws and governmental regulations regarding the same."
On page 59, line 18, after the word "outs", delete the period and insert
"or where the merchandise has been returned more than thirty (30) days after
purchase or has been worn or is damaged."
On page S9, line 31, in place of the deleted language, insert "three feet
(3')".
On page 59, line 41, after the sentence ending with the word "require",
insert "The rates charged by such contractors shall be competitive with those
charged by other pest extermination contractors doing business in the vicinity
of the Shopping Center."
Section 7.03: On page SlO, line 12, after the word "date.", delete the
period and insert o' nor shall this Section apply to stores which are both (i)
operated under a trade name which is not the same or similar to that permitted
hereunder and (ii) are not selling merchandise under any of the same label(s) as
sold at the leased premises.
Section 7.05: On page SIO, line 34, after the sentence ending with the word
"require", insert "The rates charged by such contractors shall be
competitive with those charged by other solid waste disposal contractors
doing business in the vicinity of the Shopping Center."
Section 8.02: On page SIO, line 49, after the word "development", insert
"if not for the exclusive use of a single occupant of the regional retail
development"
On page SlO, line 59, after the word "areas", insert "serving the Shopping
Center"
On page S1l, line 6, after the word "areas", insert "provided a reasonable
[UNREADABLE]
On page 513, line 11, after the word "repair" delete the period and insert
reasonable wear and tear and damage by casualty excepted
Section 10.02(c):On page 513, line 16, in place of the deleted number,
insert "twenty (20)"
Section10.02(d):On page 513, line 30, after the word "Landlord", delete the
period and insert provided such changes are required by Landlord's insurance
carrier as a result of Tenant's particular manner of use of the leased
premises."
Section10.02(2):On page 513, line 61, after the word "may,'t, insert "upon
five (5) days notice to Tenant (except in the event of an emergency in which
event no notice shall be required)".
Section 13.01:On page S17, line 65, in place of the deleted number, insert
"thirty (30)"
On page S13, line 63, in place of the deleted language, insert "further".
Section 11.01(a): On page 514, line 12, after the word "risk", insert "(i
e.," special form")"
On page 514, line 18, after the word "amounts", insert "reasonably".
On page S~, line 27, after the word "hereof", delete the period and insert
", up to a maximum amount of Three Million Dollars ($3,000,000)."
On page S14, line 27, in place of the deleted language, insert "(x) Ten
Thousand and 00/lOOths Dollars ($10,000.00) if Tenant shall have a net worth of
less than Five Million Dollars ($5,000,000) and (y) a coinmercially reasonable
amount which satisfies the written requirements of Landlord's mortgagee, so long
as such requirements are consistent with industry standards, if Tenant shall
have a net worth of over Five Million Dollars ($5,000,000)."
Section 11.01(1)):On page 514, line 31, after the word "and", insert
"reasonably".
On page 514, line 32, after the word "blanket", insert ", umbrella or
excess liability".
Section 11.01(c): On page 514, line 54, after the number "(iv)", insert
"with respect to the insurance required under subpart (ii) of Section
11.01(a),".
Section 11.02(a): On page 515, line 29, in place of the deleted language,
insert "installments"
On page SiS, line 30, after the "11.02.", delete the period and insert ",
or promptly refunded to Teriant if Landlord is holding any excess following
expiration of the lease term."
Section 11.02(c): On page 515, line 44, after "11.02.", insert "Upon
Tenant's request, but no more often than once per lease year, Landlord shall
advise Tenant of the coverages and deductible amounts then in effect for the
insurance carried under subsections (a) and (1,) of this Section."
Section 11.03: On page 515, line 46, after the word "HARMLESS.", insert
"After the initial entry by Tenant (or its agents, employees, contractors or
representatives) into the leased premises,
On page S15, line 54, after the word "customers", insert "(to the extent
the acts or omissions of the customer took place within the leased premises)".
On page S15, line 56, after the word "the", insert "exclusive".
On page SiS, line 56, after the word "and", insert "(while being used by
Tenant)".
At the end of the Section. insert "Landlord covenants to indemnify Tenant.
and save it harmless (except for loss or damage resulting from the negligence of
Tenant, its agents, employees or contractors) from and against any and all
claims, actions, damages, liability and expense, including attorneys' fees, in
connection with loss of life, personal injury and/or damage to property arising
from or out of any occurrence (other than any occurrence caused by Tenant, its
agents, employees or contractors or arising in connection with Tenant's business
operations) in the common areas of the Shopping Center
Section 12.01~): On page S17, line 41, after the word "maximum", insert (i
e, without regard to discounts such as volume consumption or energy conservation
discounts)".
Section 13.01:On page S17, line 65, in place of the deleted number, insert
"thirty (30)"
Section 13.04 (30)" On page S18, line 41, in place of the deleted amount,
insert "Fifty and O() Ii)()ih~ Dollars ($50 00)
Section 14.01: On page S18, line 61, after the word "Exchange", and within
the parenthetic~l insert "or a NASDAQ member stock exchange"
At the end of the Section, insert the following new paragraphs
"Notwithstanding the provisions of this Section 14 Ol to the contrary,
Landlord shall not witlihold its consent to an assignment of this Lease by
Tenant (by merger, consolidation or otherwise) (A) to another entity to which
Tenant (and Tenant's Guarantor [if an~) shall simultaneously he transferring at
least twenty-five (25) stores or (B) in connection with a transfer of a
controlling interest in Tenant's stock where Tenant (which shall, for the
purposes of the application of the provisions of this paragraph be deemed to be
the 'assignee' in connection with any such transfer of a controlling interest in
its stock) shall continue to own at least twenty-five (25) stores, provided that
in either of such events (A) or (B): (1) Tenant shall not at the time of such
assignment be in default under any of the terms, covenants and conditions of
this Lease, (2) such assignee shall, as of the date immediately prior to the
effective date of the assignment, have a net worth (1)ased on assets contained
within the United States) equal to or greater than the combined net worth of
Tenant and Tenant's Guarantor (if any) as of the date of Tenant's execution of
this Lease or as of the date immediately preceding the effective date of such
transfer. whichever of such net worth amounts shall be the greater, but in no
event less than Ten Million Dollars ($10,000,000), (3) such assignee shall agree
in writing to perform all of the unperformed terms. covenants and condinons
Section 13.01:On page S17, line 65, in place of the deleted number, insert
"thirty (30)"
of this Lease (whether accruing prior to, on, or after the effective date of the
assignment), (4) Tenant and Tenant's Guarantor (if any) shall at all times
remain primarily obligated for the performance of the terms, covenants and
conditions of this Lease, (5) the assignee shall deposit with Landlord a sum
equal to four (4) months' minimum rent (at the then current rate) which Landlord
may apply against any monetary obligations of Tenant which are not satisfied as
of the effective date of the assignment (any portion of such sum which has not
been so applied within fourteen (14) months following the effective date of the
assignment shall be promptly returned to the assignee), (6) such assignee shall
have demonstrated experience in the operation of stores similar to the type
operated by Tenant in the leased premises and shall prior to the effective date
of the assignment be operating at least twenty~five (25) such stores or
representatives of Tenant's then management team remain involved for at least
two (2) years, and (7) no later than thirty (30) days prior to the effective
date of the assignment, Tenant shall have supplied Landlord with all back-up
information reasonably required by Landlord to establish that all of the
foregoing conditions have been satisfied. Notwithstanding the foregoing, in the
event the above conditions for assignment are satisfied, if Landlord's managing
agent shall be The Taubman Company or any of its affiliates or if any of
Landlord's current partners (or entities controlled by such partners) shall own
an interest in Landlord at the time of such assignment, then Landlord shall
nonetheless have the option of terminating this Lease provided Landlord shall
release Tenant from all obligations and liabilities accruing after the effective
date of termination if Tenant shall have timely vacated and delivered the leased
premises to Landlord in the condition required herein; provided Landlord shall
not have such
Section 13.01:On page S17, line 65, in place of the deleted number, insert
"thirty (30)"
right to terminate this Lease if Tenant, in the event of an assignment pursuant
to clause (A) above, shall simultaneously be transferring (to the same assignee
as Tenant shall be transferring this Lease) all of its stores (including, in any
event, at least thirty-five [3~ stores) or, in the event of an assignment
pursuant to clause (B) above, Tenant shall continue to own all of the stores
owned by Tenant immediately preceding such assignment (including, in any event,
at least thirty-five [35] stores). Such option to terminate may be exercised by
Landlord during the period ninety (90) days following Landlord's receipi of
Tenant's notice of the proposed assignment and receipt of all back-up
information requested b~ Landlord in connection therewith. Any such termination
shall be effective upon not less than ninety (9()) days notice from Landlord.
Further, notwithstanding the foregoing, an assignment of this Lease to
Tenant' ~ parent corporation or to a wholly owned subsidiary corporation of
Tenant or of Tenant's parent corporation shall be permitted provided the
foregoing conditions (1), (3) and (4) shall be satisfied
Further, notwithstanding the foregoing, so long as the stock of Tenant's
parent corporation is traded on the New York Stock Exchange or on the Atnerican
Stock Exchange or a NASDAQ member stock exchange, then a merger, consolidation
or other reorganization of Tenant's parent corporation, or the sale, issuance or
transfer of any voting capital stock of Tenant's parent corporation, shall not
result in a prohibited assignment hereunder."
Section 16.01: On page S19, line 52, after the sentence ending with the
word "premises", insert "Notwithstanding the foregoing, Landlord shall not
unreasonably withhold its approval of Tenant's changing its trade name to the
name to which all of the other
Section 13.01:On page S17, line 65, in place of the deleted number, insert
"thirty (30)"
Toys International stores are changed,
Section 13.01:On page S17, line 65, in place of the deleted number, insert
"thirty (30)"
Tenant shall pay to Landlord the actual cost of changing directory signage
in the Shopping Center resulting from the change in trade name."
Section 16.03(1)): On page S20, line 28, after the word "thereof.", insert
"Tenant's obligations under this subsection 16.03(1,) as a member of the
Merchant's Association shall be in lieu of (and not in addition to) Tenant's
obligations under subsection 16.03(a). In no event shall Tenant's moneta~
obligations under this subsection exceed the amounts referenced in the last
three (3) sentences of this subsection."
Section 17.01: On page S20, line 63, after the word '~rent", insert "and
charges payable under Section 16.03 of this Lease".
On page 521, line 5, in place of the deleted language, insert "ninetieth
(90th)"
On page S21, line 11, after the sentence ending with the word "Landlord",
insert "In no event shall Tenant be obligated to undertake work equivalent to
Landlord's Work in the leased premises
On page S21, line 22, after the word "repair", insert "of improvements
(excluding items of Landlord's Work)".
On page S21, line 29, after the word "equipment.", insert "In the event the
leased premises are repaired pursuant to the provisions of this Section 17.01,
Landlord shall make all necessary repairs to items of Landlord's Work in the
leased premises which were damaged or destroyed
At the end of the Section, insert "Landlord shall not terminate this Lease
pursuant to the provisions of subparts (i) or (iii) above unless it also
terminates the leases of at least fifty percent (50%) of the other tenants
occupying Tenant's floor in Tenant's building Notwithstanding anything contained
in this Lease to the contrary, if more than twenty-five percent (25 %) of the
floor area of the leased premises is destroyed by casualty not insured against
by Landlord pursuant to Sections 8 03 or 11.02, and Landlord elects not to
terminate this Lease pursuant to the provisions of this Section, yet requires
Tenant to repair such damage, then within thirty (30) days following notice of
such situation, Tenant may terminate this Lease upon thirty (30) days notice to
Landlord. Landlord agrees to notify Tenant as to Landlord's election of whether
to rebuild or terminate within ninety (90) days after the occurrence. If during
the last two (2) years of the term hereof more than twenty-five percent (25%) of
the leased premises shall be damaged or destroyed by fire or other casualty,
then Tenant may elect to terminate this Lease by giving written notice to
Landlord of its election to so terminate, such notice to be given within ninety
(90) days after the occurrence of such damage or destruction."
Section 17.02: On page S21, line 42, in place of the deleted language,
insert "Notwithstanding anything contained in this Lease to the contrary, each".
At the end of the Section, insert "The insurance carried by Landlord
pursuant to Section 11.02 (or Section 8.03 if the last two (2) sentences of
subsection 11 02(c) apply) shall contain a waiver by the insurer of any right of
subrogation against Tenant. With respect to damage to the Shopping Center
buildings and improvements caused by Tenant, Tenant's liability to Landlord
shall be computed as if Landlord shall have been insuring the Shopping Center
buildings and improvements at full replacement cost (and shall have recovered
full replacement cost less deductibles) with deductibles no higher than the
greater of (x) those generally in effect at other enclosed first class regional
shopping centers in the State or (y) commercially reasonable amounts."
Section 19.01. On page S22, line 34, in place of the deleted language,
insert ~within ten (10) days following notice that same are".
On page S22, line 35, after the word "perform". insert "~eyond any
applicable cure period)".
On page S22, line 38, after the word "default", insert "('Cross Default')"
On page S22, line 47, in place of the deleted language, insert "delivered"
On page S22, line 47, after the word "Tenant". insert "(which thirty (30)
day period shall be extended for an additional reasonable period if same can not
be cured within thirty (30) days but Tenant shall have promptly commenced the
cure and shall be diligently pursuing the cure to completion)".
foregoing, the Cross Default provisions of subpart 19.01(a)(2) above shall
not apply to defaults under other leases unless the default under the other
lease(s) was (i) monetary in nature, or (ii) due to a failure to construct, open
or continuously operate; or (iii) due to a violation of the assignment
restrictions, or (iv) due to a violation of the permitted use provisions.'.
On page S22, line 60, in place of the first deletion, insert "one (1)
day's"
On page 522, line 60, in place of the second deletion, insert "but without"
On page 522, line 63, in place of the first deletion, insert "the same".
On page 522, line 63, in place of the deleted number, insert "three (3)"
On page S22, line 65, after the word "default", insert "of the same kind".
On page 522, line 65, in place of the deleted language, insert "such twelve
(12) month period".
On page S23, line 18, after the word "shall", insert "then"
Section 19.02' On page S23, line 30, after the word "any", insert
"necessary"
On page 523, line 43, after the word "term", insert "(discounted to present
value based upon an interest rate of six percent [6%] per annum)".
On page S23, line 48, after the sentence ending with the word "liability",
insert "Landlord agrees to attempt to mitigate by using good faith efforts to
relet the leased premises, but in no event shall Landlord be obligated to lease
the leased premises in any manner which is not in keeping with the caliber and
quality of the Shopping Center and the tenant-mix therein (as determmed by
Landlord) or to give preference to leasing the leased premises over other
available space in the Shopping Center
Section 19.03: On page S23, line 57, in place of the second deletion,
insert "the prevailing party shall recover from the other party".
Section 19.04: On page S24, line 1, after the word "any", insert
"non-compulsory"
Section 20.03: On page 524, line 33, in place of the deleted language,
insert "sixty (60)".
Section 21.01: On page S25, line 25, after the word "right", insert ", upon
three (3) days written notice to Tenant (except in the event of an emergency in
which event no notice shall be required)"
At the end of the Section, insert "In exercising its rights under this
Section, Landlord shall use reasonable efforts to minimize any interference with
the operation of Tenant's business. In the event Landlord shall enter the leased
premises under non-emergency situations in order to perform alterations,
improvements, additions or repairs to other portions of the Shopping Center, and
the same are not necessitated by Tenant's act, neglect or breach of this Lease,
and as a result thereof Tenant cannot operate its business and in fact closes
the entire premises to the public, and if such closing continues for a period of
seventy4wo (72) hours or more, Landlord agrees that from and after the
expiration of such seventy-two (72) hour period, minimum rent shall be abated
until such time as the condition giving rise to the Tenant closing has been
corrected at which time Tenant shall resume the payments."
Section 22.01: On page S25, line 52, after the word "as", insert
"reasonably"
Section 23.01: On page S26, line 4, in place of the deleted language,
insert "one-ninth (1/9th)"
Section 23.02: On page S26, line 16, after the word "any", insert
"unpermitted".
Section 25.02: On page S26, line 44, after the word "shall", insert "not".
On page S26, line 44, in place of the deleted language, insert "or against
Landlord as a matter of law."
Section 26.01: At the end of the Section, insert "Landlord acknowledges
that there is no security deposit due upon the inception of the term of this
Lease and that the security deposit provisions of this Lease apply solely in
connection with Article XX of this Lease."
Section 13.01:On page S17, line 65, in place of the deleted number, insert
"thirty (30)"
Section 27.04' On page S28, line 8, in place of the deleted language.
insert "To the ~xtent Tenant has access to the leased premises through the
Shopping Center, the"
On page S28, line 14, after the word "Lease", insert ", except to the
extent the leased premises are rendered untenantable".
Section 27.05: On page S28, line 19, after the word "receipt", insert ", or
refusal of receipt"
On page S28, line 20, in place of the first deletion, insert "shall". On
page S28, line 20, in place of the second deletion, insert "return receipt
requested, postage prepaid".
On page S28, line 22. in place of the second deletion. insert "receipt or
refusal of receipt by".
On page S28, line 26, after the word "Lease", insert "Attention President"
On page S28, line 28, in place of the deleted language, insert "an"
At the end of the Section, insert "Notwithstanding anything contained
above, Landlord and Tenant may send notice with a reliable air courier service,
marked and prepaid for overnight delivery, and such notice shall be deemed given
one (1) day following deposit with such air courier."
Section 27.09: At the end of the Section, insert "So long as Tenant is a
publicly traded company, Tenant shall be deemed in compliance with the
provisions of this Section upon the furnishing to Landlord of a copy of its
published annual and quarterly reports."
Section 27.10: At the end of the Section, insert "In exercising its rights
under this Section, Landlord shall use reasonable efforts to minimize any
interference with the operation of Tenant's business."
Section 27.12(a): At the end of the Subsection, insert "Within thirty (30)
days following delivery of possession, Tenant's architect shall be permitted to
confirm Landlord's measurement of the floor area of the leased premises; in the
event of a disagreement between Landlord's architect and Tenant's architect,
both architects shall choose a third (3rd) independent architect whose
measurement shall be final and binding. Followin any such determination, the
floor area of the leased premises shall be adjusted to conform to the actual
floor area, but there shall be no adjustment in minimum rent or percentage rent
Section 27.12~): On page S29, line 20, in place of the deleted number,
insert "25,000"
On page S29, line 20, after the word "more", insert "of contiguous (i e ,
not totally separated by demising walls) floor area".
Section 27.16: On page S30, line 7, after the word "irrevocable", delete
the period and insert "for a period of thirty (30) days; thereafter Tenant may
revoke its execution prior to Landlord's execution upon five (5) days notice to
Landlord."
Section 27.19: On page S30, line 31, after the word "Lease", insert "beyond
any applicable grace or cure period expressly set forth herein".
Section 27.21: On page S30, line 49, after the word "entity.", delete the
period and insert "provided Tenant may disclose the contents of this Lease (i)
to comply with any governmental orders, laws, rules or regulations applicable to
it or its principals, (ii) to professionals assisting Tenant to so comply and
(iii) to any potential investors in, lenders to or purchasers of Tenant's
business; provided however Tenant warrants to Landlord that all of the
individuals who, and entities which, are recipients of such information shall
comply with the confidentiality provisions of this Section
Exhibit "B":
Section III.H.1. On page 3, line 37, after the word "Landlord ", insert
"Notwithstanding anything contained to the contrary in this Lease or the
exhibits hereto, if within fifteen (15) days after Landlord gives Tenant
Landlord's Notice of Availability (as prc'\ ided in Section 5 02) and prior to
Tenant's conimencement of any construction in the leased premises, (x) Tenant
gives Landlord written notice of any asbestos containing materials (ACM) in the
leased premises which notice shall specify in detail the location, nature and
quantity of the ACM in the leased premises, and (y) the ACM shall have been
Section 13.01:On page S17, line 65, in place of the deleted number, insert
"thirty (30)"
installed by Landlord, and (z) the applicable governmental authorities
require the removal or encapsulation of the ACM in connection with the
performance of Tenant's Work, then Landlord shall give Tenant written notice
("Landlord's ACM Notice") specifying whether or not Landlord elects to cause the
removal or encapsulation of the ACM. If Landlord elects to remove or encapsulate
such ACM then the commencement date set forth in the Data Sheet shall be
extended for the period from Landlord's ACM Notice through completion of removal
or encapsulation. If Landlord does not elect to cause the removal or
encapsulation of such ACM as required by the applicable governmental authorities
in connection with the performance of Tenant's Work then Tenant shall have the
option to terminate this Lease, by and upon written notice delivered to Landlord
within five (5) days after Tenant's receipt of Landlord's ACM Notice; provided
however, that Landlord may vitiate such termination by agreeing to so remove or
encapsulate such ACM by notice sent to Tenant no later than ten (10) days
followmg Landlord's receipt of Tenant's notice of termination. Tenant
acknowledges and agrees that termination of this Lease as provided above shall
be Tenant's sole and exclusive remedy with respect to the presence of any ACM in
the leased premises and agrees not to bring or assert any claim whatsoever
against Landlord on account of the presence or condition of any ACM in the
leased premises. If Landlord elect to remove or encapsulate such ACM, Landlord
shall not be responsible for any ACM installed by Landlord which is not
identified by Tenant in Tenant's notice to Landlord and in no event shall the
existence of any ACM be deemed to be a defect (latent or otherwise) in
Landlord's Work, it being understood that, except as otherwise herein set forth,
Tenant accepts the leased premises in an "as is" condition without
representation by Landlord, or any person or entity on behalf of Landlord, as to
the condition thereof Tenant shall disclose the existence of any ACM only to
Landlord, its agents and representatives and shall otherwise keep confidential
any information obtained regarding ACM in the leased premises.
On page 3 of 11, line 41, in place of the deleted language, insert
"asbestos containing".
On page 3 of 11, line 43, after the word "All", insert "such"
Section Iv.C.: On page 4 of 11, line 51, after the "a.", insert "Subject to
the provisions of Section 1.01(0) ofthe Rider to the Lease,".
Section V: On page 6 of 11, line 62, after the comma after the
parenthetical ending with the word "completion", insert "Landlord shall have the
right to require".
On page 6 of 11, line 64, after the word "notices", insert "(other than
notices of default or notices of failure of performance)".
Section v'.A.1: On page 8 of 11, line 7, in place of the deleted language,
insert "in time to open by the required operling date set forth in the Lease".
Section Vl.B.5: On page 8 of 11, line 58, in place of the deleted language,
insert "sixty (60)"
On page 8 of 11, line 58, after the word "after", insert "written".
On page 8 of 11, line 61, in place of the deleted language, insert "one
hundred twenty (120)"
On page 8 of 11, line 61, after the word "Landlord's", insert "written"
On page 8 of 11, line 63, after the word "Tenant", insert "; provided
however, if such one hundred twenty (120) day period would expire between
October 14th and the next February 15th, its expiration shall be extended to the
next June 15th"
Section v'.D.2: On page 9 of 11, line 23, in place of the deleted language,
insert "give Landlord prior written notice of Tenant's readiness".
Section v'.D.3: On page 9 of 11, line 49, after the word "contractors",
insert "reasonably"
Section v'.G.1.b.: On page 10 of 11, line 35, after the word "expenses.",
insert "The charge to Tenant under this subparagraph G. 1 .b. shall not exceed
Three Hundred and OOIlOOths Dollars ($300.00)."
Section v'.F.1: On page 10 of 11, line 37, after the word "the", insert
"date thirty (30) days following the".
[End of text of the Rider; signature and acknowledgment pages appear at end
of Data Sheet on the pages immediately preceding the Addendum.]
foregoing, the Cross Default provisions of subpart 19.01(a)(2) above shall
not apply to defaults under other leases unless the default under the other
lease(s) was (i) monetary in nature, or (ii) due to a failure to construct, open
or continuously operate; or (iii) due to a violation of the assignment
restrictions, or (iv) due to a violation of the permitted use provisions.'.
On page S22, line 60, in place of the first deletion, insert "one (1)
day's"
On page 522, line 60, in place of the second deletion, insert "but without"
On page 522, line 63, in place of the first deletion, insert "the same".
On page 522, line 63, in place of the deleted number, insert "three (3)"
On page S22, line 65, after the word "default", insert "of the same kind".
On page 522, line 65, in place of the deleted language, insert "such twelve
(12) month period".
On page S23, line 18, after the word "shall", insert "then"
Section 19.02' On page S23, line 30, after the word "any", insert
"necessary"
On page 523, line 43, after the word "term", insert "(discounted to present
value based upon an interest rate of six percent [6%] per annum)".
On page S23, line 48, after the sentence ending with the word "liability",
insert "Landlord agrees to attempt to mitigate by using good faith efforts to
relet the leased premises, but in no event shall Landlord be obligated to lease
the leased premises in any manner which is not in keeping with the caliber and
quality of the Shopping Center and the tenant-mix therein (as determmed by
Landlord) or to give preference to leasing the leased premises over other
available space in the Shopping Center
Section 19.03: On page S23, line 57, in place of the second deletion,
insert "the prevailing party shall recover from the other party".
Section 19.04: On page S24, line 1, after the word "any", insert
"non-compulsory"
Section 20.03: On page 524, line 33, in place of the deleted language,
insert "sixty (60)".
Section 21.01: On page S25, line 25, after the word "right", insert ", upon
three (3) days written notice to Tenant (except in the event of an emergency in
which event no notice shall be required)"
At the end of the Section, insert "In exercising its rights under this
Section, Landlord shall use reasonable efforts to minimize any interference with
the operation of Tenant's business. In the event Landlord shall enter the leased
premises under non-emergency situations in order to perform alterations,
improvements, additions or repairs to other portions of the Shopping Center, and
the same are not necessitated by Tenant's act, neglect or breach of this Lease,
and as a result thereof Tenant cannot operate its business and in fact closes
the entire premises to the public, and if such closing continues for a period of
seventy4wo (72) hours or more, Landlord agrees that from and after the
expiration of such seventy-two (72) hour period, minimum rent shall be abated
until such time as the condition giving rise to the Tenant closing has been
corrected at which time Tenant shall resume the payments."
Section 22.01: On page S25, line 52, after the word "as", insert
"reasonably"
Section 23.01: On page S26, line 4, in place of the deleted language,
insert "one-ninth (1/9th)"
Section 23.02: On page S26, line 16, after the word "any", insert
"unpermitted".
Section 25.02: On page S26, line 44, after the word "shall", insert "not".
On page S26, line 44, in place of the deleted language, insert "or against
Landlord as a matter of law."
Section 26.01: At the end of the Section, insert "Landlord acknowledges
that there is no security deposit due upon the inception of the term of this
Lease and that the security deposit provisions of this Lease apply solely in
connection with Article XX of this Lease."
Section 13.01:On page S17, line 65, in place of the deleted number, insert
"thirty (30)"
Section 27.04' On page S28, line 8, in place of the deleted language.
insert "To the ~xtent Tenant has access to the leased premises through the
Shopping Center, the"
On page S28, line 14, after the word "Lease", insert ", except to the
extent the leased premises are rendered untenantable".
Section 27.05: On page S28, line 19, after the word "receipt", insert ", or
refusal of receipt"
On page S28, line 20, in place of the first deletion, insert "shall". On
page S28, line 20, in place of the second deletion, insert "return receipt
requested, postage prepaid".
On page S28, line 22. in place of the second deletion. insert "receipt or
refusal of receipt by".
On page S28, line 26, after the word "Lease", insert "Attention President"
On page S28, line 28, in place of the deleted language, insert "an"
At the end of the Section, insert "Notwithstanding anything contained
above, Landlord and Tenant may send notice with a reliable air courier service,
marked and prepaid for overnight delivery, and such notice shall be deemed given
one (1) day following deposit with such air courier."
Section 27.09: At the end of the Section, insert "So long as Tenant is a
publicly traded company, Tenant shall be deemed in compliance with the
provisions of this Section upon the furnishing to Landlord of a copy of its
published annual and quarterly reports."
Section 27.10: At the end of the Section, insert "In exercising its rights
under this Section, Landlord shall use reasonable efforts to minimize any
interference with the operation of Tenant's business."
Section 27.12(a): At the end of the Subsection, insert "Within thirty (30)
days following delivery of possession, Tenant's architect shall be permitted to
confirm Landlord's measurement of the floor area of the leased premises; in the
event of a disagreement between Landlord's architect and Tenant's architect,
both architects shall choose a third (3rd) independent architect whose
measurement shall be final and binding. Followin any such determination, the
floor area of the leased premises shall be adjusted to conform to the actual
floor area, but there shall be no adjustment in minimum rent or percentage rent
Section 27.12~): On page S29, line 20, in place of the deleted number,
insert "25,000"
On page S29, line 20, after the word "more", insert "of contiguous (i e ,
not totally separated by demising walls) floor area".
Section 27.16: On page S30, line 7, after the word "irrevocable", delete
the period and insert "for a period of thirty (30) days; thereafter Tenant may
revoke its execution prior to Landlord's execution upon five (5) days notice to
Landlord."
Section 27.19: On page S30, line 31, after the word "Lease", insert "beyond
any applicable grace or cure period expressly set forth herein".
Section 27.21: On page S30, line 49, after the word "entity.", delete the
period and insert "provided Tenant may disclose the contents of this Lease (i)
to comply with any governmental orders, laws, rules or regulations applicable to
it or its principals, (ii) to professionals assisting Tenant to so comply and
(iii) to any potential investors in, lenders to or purchasers of Tenant's
business; provided however Tenant warrants to Landlord that all of the
individuals who, and entities which, are recipients of such information shall
comply with the confidentiality provisions of this Section
Exhibit "B~~:
Section III.H.1. On page 3, line 37, after the word "Landlord ", insert
"Notwithstanding anything contained to the contrary in this Lease or the
exhibits hereto, if within fifteen (15) days after Landlord gives Tenant
Landlord's Notice of Availability (as prc'\ ided in Section 5 02) and prior to
Tenant's conimencement of any construction in the leased premises, (x) Tenant
gives Landlord written notice of any asbestos containing materials (ACM) in the
leased premises which notice shall specify in detail the location, nature and
quantity of the ACM in the leased premises, and (y) the ACM shall have been
Section 13.01:On page S17, line 65, in place of the deleted number, insert
"thirty (30)"
installed by Landlord, and (z) the applicable governmental authorities
require the removal or encapsulation of the ACM in connection with the
performance of Tenant's Work, then Landlord shall give Tenant written notice
("Landlord's ACM Notice") specifying whether or not Landlord elects to cause the
removal or encapsulation of the ACM. If Landlord elects to remove or encapsulate
such ACM then the commencement date set forth in the Data Sheet shall be
extended for the period from Landlord's ACM Notice through completion of removal
or encapsulation. If Landlord does not elect to cause the removal or
encapsulation of such ACM as required by the applicable governmental authorities
in connection with the performance of Tenant's Work then Tenant shall have the
option to terminate this Lease, by and upon written notice delivered to Landlord
within five (5) days after Tenant's receipt of Landlord's ACM Notice; provided
however, that Landlord may vitiate such termination by agreeing to so remove or
encapsulate such ACM by notice sent to Tenant no later than ten (10) days
followmg Landlord's receipt of Tenant's notice of termination. Tenant
acknowledges and agrees that termination of this Lease as provided above shall
be Tenant's sole and exclusive remedy with respect to the presence of any ACM in
the leased premises and agrees not to bring or assert any claim whatsoever
against Landlord on account of the presence or condition of any ACM in the
leased premises. If Landlord elect to remove or encapsulate such ACM, Landlord
shall not be responsible for any ACM installed by Landlord which is not
identified by Tenant in Tenant's notice to Landlord and in no event shall the
existence of any ACM be deemed to be a defect (latent or otherwise) in
Landlord's Work, it being understood that, except as otherwise herein set forth,
Tenant accepts the leased premises in an "as is" condition without
representation by Landlord, or any person or entity on behalf of Landlord, as to
the condition thereof Tenant shall disclose the existence of any ACM only to
Landlord, its agents and representatives and shall otherwise keep confidential
any information obtained regarding ACM in the leased premises.
On page 3 of 11, line 41, in place of the deleted language, insert
"asbestos containing".
On page 3 of 11, line 43, after the word "All", insert "such"
Section Iv.C.: On page 4 of 11, line 51, after the "a.", insert "Subject to
the provisions of Section 1.01(0) ofthe Rider to the Lease,".
Section V: On page 6 of 11, line 62, after the comma after the
parenthetical ending with the word "completion", insert "Landlord shall have the
right to require".
On page 6 of 11, line 64, after the word "notices", insert "(other than
notices of default or notices of failure of performance)".
Section v'.A.1: On page 8 of 11, line 7, in place of the deleted language,
insert "in time to open by the required operling date set forth in the Lease".
Section Vl.B.5: On page 8 of 11, line 58, in place of the deleted language,
insert "sixty (60)"
On page 8 of 11, line 58, after the word "after", insert "written".
On page 8 of 11, line 61, in place of the deleted language, insert "one
hundred twenty (120)"
On page 8 of 11, line 61, after the word "Landlord's", insert "written"
On page 8 of 11, line 63, after the word "Tenant", insert "; provided
however, if such one hundred twenty (120) day period would expire between
October 14th and the next February 15th, its expiration shall be extended to the
next June 15th"
Section v'.D.2: On page 9 of 11, line 23, in place of the deleted language,
insert "give Landlord prior written notice of Tenant's readiness".
Section v'.D.3: On page 9 of 11, line 49, after the word "contractors",
insert "reasonably"
Section v'.G.1.b.: On page 10 of 11, line 35, after the word "expenses.",
insert "The charge to Tenant under this subparagraph G. 1 .b. shall not exceed
Three Hundred and OOIlOOths Dollars ($300.00)."
Section v'.F.1: On page 10 of 11, line 37, after the word "the", insert
"date thirty (30) days following the".
[End of text of the Rider; signature and acknowledgment pages appear at end
of Data Sheet on the pages immediately preceding the Addendum.]
