EXHIBIT 10.19
GROUND LEASE
WEST ACRES SHOPPING CENTER
between
WEST ACRES DEVELOPMENT, LLP
Xxx 0000
Xxxxx, XX 00000-0000
FOUNDERS FOOD & XXXXXXX, LTD.
0000 Xxxxx Xxxx Xxxx
Xx. Xxxxx Xxxx, XX 00000
January 18, 2001
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS..........................................................................................-1-
ARTICLE 2. PREMISES.............................................................................................-3-
ARTICLE 3. TERM.................................................................................................-3-
Section 3.1 Commencement and Term......................................................................-3-
Section 3.2 Lease Year.................................................................................-3-
Section 3.3 Verification of Term - Floor Area - Rent...................................................-3-
Section 3.4 Option to Renew............................................................................-4-
ARTICLE 4. PRE-RENTAL COMMENCEMENT DATE CONDITIONS..............................................................-4-
Section 4.1 Landlord's Obligations.....................................................................-4-
Section 4.2. Legal Description..........................................................................-5-
Section 4.3. Approval of Plans and Specifications.......................................................-5-
Section 4.4. Permits....................................................................................-5-
Section 4.5. Soil Tests.................................................................................-6-
Section 4.6. Discovery of Hazardous Materials...........................................................-6-
Section 4.7. Title......................................................................................-6-
Section 4.8. Tenant's Financing.........................................................................-6-
Section 4.9. Tax Parcel.................................................................................-7-
Section 4.10. Pre-Delivery Date Termination..............................................................-7-
ARTICLE 5. FIXED MINIMUM RENT...................................................................................-7-
Section 5.1. Minimum Rent...............................................................................-7-
ARTICLE 6. PERCENTAGE RENT.......................................................................................-7-
Section 6.1. Payment of Percentage Rent.................................................................-7-
Section 6.2. Gross Sales Defined........................................................................-8-
Section 6.3. Sales Records..............................................................................-8-
Section 6.4. Sales Statements...........................................................................-9-
Section 6.5. Examination and Audit......................................................................-9-
ARTICLE 7. CONSTRUCTION OF IMPROVEMENTS........................................................................-10-
Section 7.1. Tenant's Improvements.....................................................................-10-
Section 7.2. Landlord's Improvements...................................................................-11-
Section 7.3. Construction of Tenant's Improvements.....................................................-11-
Section 7.4. Ownership of Improvements and Fixtures....................................................-12-
ARTICLE 8. USE OF PREMISES.....................................................................................-12-
Section 8.1. Use of Premises...........................................................................-12-
Section 8.2. Operation of Business.....................................................................-12-
Section 8.3. Negative Covenants........................................................................-12-
Section 8.4. Prohibited Uses...........................................................................-13-
ARTICLE 9. PAYMENT OF TAXES, ASSESSMENTS, ETC..................................................................-13-
Section 9.1. Tenant's Obligation.......................................................................-13-
Section 9.2. Personal Property Taxes...................................................................-14-
ARTICLE 10. DISCHARGE OF LIENS.................................................................................-14-
Section 10.1. Liens and Encumbrances....................................................................-14-
-i-
Section 10.2. Mechanic's Liens..........................................................................-14-
ARTICLE 11. ALTERATIONS AND IMPROVEMENTS.......................................................................-14-
Section 11.1. Tenant's Alterations......................................................................-14-
Section 11.2. Tenant's Signs............................................................................-15-
ARTICLE 12. REPAIRS AND MAINTENANCE............................................................................-16-
Section 12.1. Tenant's Obligation.......................................................................-16-
Section 12.2. Waste or Nuisance.........................................................................-16-
ARTICLE 13. GOVERNMENTAL REQUIREMENTS; INSURANCE STANDARDS......................................................-17-
Section 13.1. Governmental and Insurance Requirements...................................................-17-
Section 13.2. Tenant's Right to Contest.................................................................-17-
Section 13.3. Fire Extinguishers........................................................................-17-
ARTICLE 14. HAZARDOUS MATERIALS................................................................................-17-
Section 14.1. Tenant's Hazardous Materials..............................................................-17-
Section 14.2. Compliance with Laws......................................................................-18-
Section 14.3. Environmental Audit and Removal...........................................................-18-
Section 14.4. Non-Tenant Installed Hazardous Materials..................................................-20-
Section 14.5. Landlord's Approval.......................................................................-20-
Section 14.6. Indemnity.................................................................................-20-
Section 14.7. Landlord's Representations................................................................-21-
ARTICLE 15. INSURANCE AND INDEMNITY............................................................................-21-
Section 15.1. Construction Insurance....................................................................-21-
Section 15.2. Tenant's Liability Insurance..............................................................-21-
Section 15.3. Tenant's Property Insurance...............................................................-21-
Section 15.4. Insurance Requirements....................................................................-22-
Section 15.5. Proof of Insurance........................................................................-22-
Section 15.6. Indemnification...........................................................................-22-
Section 15.7. Landlord's Insurance......................................................................-23-
Section 15.8. Waiver of Subrogation.....................................................................-23-
Section 15.9. Waiver of Claims Against Landlord.........................................................-23-
ARTICLE 16. DAMAGE AND DESTRUCTION.............................................................................-24-
Section 16.1. Tenant's Obligation.......................................................................-24-
Section 16.2. Right to Terminate........................................................................-24-
ARTICLE 17. EMINENT DOMAIN.....................................................................................-25-
Section 17.1. Taking of Entire Premises.................................................................-25-
Section 17.2. Partial Taking............................................................................-25-
Section 17.3. Tenant's Rental Obligation................................................................-25-
Section 17.4. Condemnation Award........................................................................-25-
Section 17.5. Condemnation of Less than a Fee...........................................................-26-
ARTICLE 18. ASSIGNMENT AND SUBLETTING...........................................................................-26-
Section 18.1. Limitation on Right to Assignment.........................................................-26-
Section 18.2. Landlord's Consent........................................................................-27-
Section 18.3. Information to Landlord...................................................................-28-
Section 18.4. Consequences of a Transfer; Assumption Agreement..........................................-28-
Section 18.5. Change of Ownership.......................................................................-28-
Section 18.6. Further Transfers.........................................................................-29-
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Section 18.7. Assignment or Transfer by Landlord........................................................-29-
ARTICLE 19. UTILITIES..........................................................................................-29-
ARTICLE 20. DEFAULT AND REMEDIES...............................................................................-29-
Section 20.1. Events of Default.........................................................................-29-
Section 20.2. Remedies for Default......................................................................-30-
Section 20.3. Recovery of Rent and Damages..............................................................-32-
Section 20.4. Interest on Amounts Overdue...............................................................-33-
Section 20.5. Legal Expense.............................................................................-33-
Section 20.6. Bankruptcy of Tenant......................................................................-33-
Section 20.7. Waiver of Default.........................................................................-34-
Section 20.8. Option to Cure Default....................................................................-34-
Section 20.9. Accord and Satisfaction...................................................................-34-
Section 20.10. Remedies Cumulative.......................................................................-35-
ARTICLE 21. SURRENDER OF PREMISES..............................................................................-35-
Section 21.1. Tenant's Obligations......................................................................-35-
Section 21.2. Damages for Failure to Surrender Premises.................................................-35-
Section 21.3. Holding Over..............................................................................-35-
ARTICLE 22. LEASEHOLD MORTGAGE.................................................................................-35-
Section 22.1. Tenant's Right to Mortgage Leasehold......................................................-35-
Section 22.2. Covenants for Benefit of Leasehold Mortgagee..............................................-36-
Section 22.3. Termination of Lease......................................................................-37-
ARTICLE 23. ACCESS TO PREMISES.................................................................................-37-
Section 23.1. Posting Notices...........................................................................-37-
Section 23.2. Prospective Purchasers....................................................................-38-
Section 23.3. Landlord's Access to Common Areas on the Land.............................................-38-
ARTICLE 24. COMMON AREAS......................................................................................-38-
Section 24.1. Access to Common Areas....................................................................-38-
Section 24.2. Common Areas on the Premises..............................................................-38-
Section 24.3. Common Area Rules and Regulations.........................................................-39-
Section 24.4. Maintenance of Common Areas...............................................................-40-
Section 24.5. Common Area Cost Defined..................................................................-40-
Section 24.6. Apportionment of Common Area Cost.........................................................-41-
Section 24.7. Payment of Common Area Charges............................................................-42-
ARTICLE 25. MERCHANTS ASSOCIATION..............................................................................-42-
ARTICLE 26. PROTECTION OF LENDERS..............................................................................-43-
Section 26.1. Estoppel Certificate......................................................................-43-
Section 26.2. Attornment................................................................................-43-
Section 26.3. Subordination.............................................................................-43-
ARTICLE 27. OTHER PROVISIONS...................................................................................-44-
Section 27.1. Additional Rents..........................................................................-44-
Section 27.2. Excuse for Non-Performance................................................................-44-
Section 27.3. Successors................................................................................-44-
Section 27.4. Consent and Approval......................................................................-44-
Section 27.5. Entire Agreement..........................................................................-45-
-iii-
Section 27.6. No Partnership Relation...................................................................-45-
Section 27.7. Net Lease.................................................................................-45-
Section 27.8. No Personal Liability of Landlord.........................................................-45-
Section 27.9. Notices...................................................................................-45-
Section 27.10. Captions..................................................................................-46-
Section 27.11. Brokerage.................................................................................-46-
Section 27.12. Severability..............................................................................-46-
Section 27.13. No Option.................................................................................-46-
Section 27.14. Recording.................................................................................-46-
-iv-
GROUND LEASE
THIS GROUND LEASE, made and entered into this____day of January, 2001,
by and between WEST ACRES DEVELOPMENT, LLP, a North Dakota limited liability
partnership (herein "Landlord"), whose address is Xxx 0000, Xxxxx, Xxxxx Xxxxxx
00000-0000, and FOUNDERS FOOD & XXXXXXX, LTD., a Minnesota corporation (herein
"Tenant"), whose address is 0000 Xxxxx Xxxx Xxxx, Xx. Xxxxx Xxxx, XX 00000.
PRELIMINARY STATEMENT
Landlord is the owner of unimproved real property adjacent to a
shopping center known as the West Acres Shopping Center, located in the City of
Fargo, County of Cass and State of North Dakota. Tenant desires to lease from
Landlord a portion of the unimproved land containing approximately 90,000 square
feet of ground area, and Landlord desires to lease said parcel of land to
Tenant, on which parcel of land Tenant intends to construct a one story building
containing approximately 8,750 square feet of floor area and other improvements,
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the terms, covenants and
conditions herein set forth, Landlord and Tenant hereby covenant and agree as
follows:
ARTICLE 1. DEFINITIONS
SECTION 1.1. LEASE: This Lease agreement, as amended by the parties in
accordance with its terms.
SECTION 1.2. LANDLORD: West Acres Development, LLP, a North Dakota
limited liability partnership, whose address is specified
above, and whose phone number for facsimile transmissions is
701-280-2229, as long as it retains ownership of the Land,
and thereafter any future owner of the Land as provided in
Section 18.7.
SECTION 1.3. TENANT: Founders Food & Xxxxxxx, Ltd., a Minnesota
corporation, whose address is specified above, and whose
phone number for facsimile transmissions is 000-000-0000.
SECTION 1.4. SHOPPING CENTER: The West Acres Regional Shopping Center
located on Blocks 1 and 2 and 5 through 8, inclusive, of
West Acres Third Addition to the City of Fargo, Cass County
State of North Dakota, and Blocks 3 and Blocks A through D,
inclusive, of the Replat of Part of Block 3 of West Acres
Third Addition to the City of Fargo, Cass County State of
North Dakota, together with any adjacent land which may be
operated as part of the Shopping Center under cross
easements and operating agreements; together with all
buildings and improvements thereon. The present boundaries
of the Shopping Center are outlined in blue upon the
Shopping Center Site Plan attached hereto as Exhibit 1.
SECTION 1.5. LAND: The unimproved parcel of land located on Block A of
the Replat of Part of Block 3 of West Acres Third Addition
to the City of Fargo, Cass County State of North Dakota, the
location of which is approximately set forth in red and
labeled "Founders Food" on the Shopping Center Site Plan
attached as Exhibit 1, and which is separately identified on
the Site Plan for the Premises attached as Exhibit 2. Upon
approval of the legal description for the Land under Section
4.2, the description so adopted shall constitute the "Land"
under this provision.
SECTION 1.6. IMPROVEMENTS: The restaurant building, parking lots, pond
feature, driveways, walkways, landscaping and other
improvements to be constructed on the Land in accordance
with the provisions of Article 7 of this Lease.
SECTION 1.7. PREMISES: The Land and the Improvements, as defined herein.
SECTION 1.8. COMMON AREAS: The parking areas, streets, fire corridors,
driveways, walkways, curbs, gutters, drainage areas,
landscaped areas, and other areas designated by Landlord for
common use or benefit of tenants and other patrons of the
Shopping Center, which are located within the Shopping
Center or adjacent to the Shopping Center and made available
for common use or benefit of tenants of the Shopping Center
through reciprocal easements and operating agreements,
leases, and the like and which are not enclosed within any
building. The term "Common Areas" shall include Common Areas
on the Premises.
SECTION 1.9. COMMON AREAS ON THE PREMISES: The exterior landscaped areas,
driveways, parking areas and walkways on the Land, exclusive
of (i) the pond and fountain area and (ii) the service
areas, sidewalks, planters, and landscaped areas adjacent to
the Building. The approximate location of the Common Areas
on the Premises is outlined in yellow Site Plan for the
Premises attached as Exhibit 2.
SECTION 1.10. PERMITTED ENCUMBRANCES: Permitted Encumbrances shall
include:
[a] real estate taxes and installments of special
assessments for 2001 (payable 2002) and thereafter;
[b] any reservation of mineral rights;
[c] pipeline and utility easements that do not interfere
with present or proposed use of or improvements on
the Subject Premises;
[d] zoning and other municipal codes and ordinances;
[f] any others interests or restrictions, including
without limitation other leases, operating
agreements, easements, restrictive covenants or other
restrictions not objected to by Tenant prior to
commencement of construction of the Improvements
pursuant to Article 7 of the Lease.
SECTION 1.11. EFFECTIVE DATE: The Effective Date shall be the date on
which the last party executes and delivers the Lease to the
other party. For the purpose of this provision, execution
and delivery shall include execution of the Lease and
sending by facsimile a signed signature page of the
counterpart of this Lease.
SECTION 1.12. RENT COMMENCEMENT DATE: The date the term of this Lease and
Tenant's obligation to pay rent commences under Section 3.1
of this Lease.
SECTION 1.13. DELIVERY DATE: The date Tenant is entitled to access to the
Premises for the construction of Tenant's Improvements under
Section 7.3.
ARTICLE 2. PREMISES
In consideration of the mutual covenants, conditions and agreements
included in this Lease, Landlord leases to Tenant, and Tenant leases from
Landlord, the Premises together with any and all easements, appurtenances,
rights and privileges belonging to the Premises and the non-exclusive right to
use the Common Areas as provided in Section 24.1 hereof, in common with other
tenants and occupants of the Shopping Center; provided, however, that: i)
Tenant's rights under this Lease are subject and subordinate to all liens,
encumbrances, easements, restrictions, ground leases, and any rights of way and
other interests of record,
zoning laws and regulations affecting or governing the Premises; and ii) the
Common Areas on the Premises and ingress to and egress from the Common Areas on
the Premises are for the nonexclusive use by Tenant and its customers in common
with other tenants and occupants of buildings comprising the Shopping Center
whether operating under cross easement and operating agreements or leases with
Landlord, together with their respective patrons and invitees.
ARTICLE 3. TERM
SECTION 3.1. COMMENCEMENT AND TERM. This Lease shall begin and be of full force
and effect as to both Landlord and Tenant as of the Effective Date. The term of
this Lease and Tenant's obligation to pay rent hereunder shall commence on: (a)
December 1, 2001 (as such date may be extended on a daily basis as a result of
the application of the provision set forth in Section 27.2 of this Lease); or
(b) the date on which Tenant shall open the Premises for business to the public,
whichever date shall first occur, and, unless sooner terminated as permitted by
this Lease or by law, shall continue for a period of twenty (20) full Lease
Years.
SECTION 3.2. LEASE YEAR. The term "Lease Year" means each consecutive period of
twelve (12) full calendar months during the term of this Lease commencing on the
Rent Commencement Date if that date shall occur on the first day of a calendar
month; if not, then the first Lease Year shall commence upon the first day of
the first calendar month following the Rent Commencement Date. Each succeeding
Lease Year shall commence upon the anniversary date of the first Lease Year. The
last Lease Year shall end on the date this Lease terminates and may be less than
twelve months.
SECTION 3.3. VERIFICATION OF TERM - FLOOR AREA - RENT. When the Rent
Commencement Date has been determined, Landlord and Tenant shall execute and
deliver a statement, in duplicate, specifying the Rent Commencement Date and the
actual number of square feet of floor area of the restaurant building on the
Premises and other matters specified therein, which completed statement shall be
attached to and constitute a part of this Lease, as Exhibit 3. In determining
the floor area of the building on the Premises: i) measurements shall be made
from the exterior of the outside walls of the building on the Premises; ii) any
basement space used for storage or mechanical space shall be excluded; iii) the
balance of any basement space shall be included as if it were on the main floor;
(iv) any mezzanine area used solely for administrative or storage space, shall
be excluded. Failure of Landlord and Tenant to execute Exhibit 3 shall not
affect either party's obligations under this Lease.
SECTION 3.4. OPTION TO RENEW. Tenant shall have the option to extend the term of
this Lease for one renewal period of five years (sixty calendar months) by
written notice to Landlord served at least fourteen (14) full calendar months
and no more than thirty-six (36) months prior to the end of the twentieth Lease
Year (the termination date of this Lease), provided that no such notice shall be
effective if this Lease is not in full force and effect or if Tenant is in
default under any material term or covenant of this Lease. During the option
term Landlord and Tenant shall be bound by all terms and conditions of this
Lease except that Tenant's fixed minimum rental payable to Landlord each year
shall equal to the greater of: i) the fixed minimum rental payable to Landlord
by Tenant during the last Lease Year immediately before the renewal term; or ii)
the product of $72,000 (the annual fixed minimum rent due during the first Lease
Year) times a fraction, the numerator of which is the sum of the 'Consumer Price
Index - Seasonally Adjusted U.S. City Average For All Items For All Urban
Consumers (1982-84=100)' published monthly in the 'Monthly Labor Review' of the
Bureau of Labor Statistics of the United States Department of Labor ("CPI-U")
during the first full calendar month of the first Lease Year (which amount shall
be included on Exhibit 3, plus one-half of the difference between the CPI-U
during the month immediately preceding the renewal term and the CPI-U published
for the first full calendar month of the first Lease Year, and the denominator
of which is the CPI-U published for the first full calendar month of the first
Lease Year. In the event that the Bureau of Labor Statistics shall no longer
maintain the CPI-U, comparable statistics published by a responsible financial
periodical or recognized authority selected by Landlord shall be used for making
the computation specified above. In the event that the base year "(1982-84=100)"
or any future base year is changed, the figures used in making the adjustment
provided above shall be changed so that all increases in the CPI-U are taken
into account notwithstanding any
such change in the base year. Minimum rent shall be paid in monthly installments
equal to one-twelfth the annual fixed minimum rent as provided in Section 5.1.
ARTICLE 4. PRE-RENTAL COMMENCEMENT DATE CONDITIONS
SECTION 4.1. LANDLORD'S OBLIGATIONS. As soon as practicable following the
Effective Date, Landlord will provide Tenant with any existing surveys, soil
reports, environmental reports, and geotechnical reports, and other engineering
reports and studies in its possession relating, obtained or undertaken with
respect to the Premises. Such reports shall be used by Tenant solely for the
purpose in assisting it to economically undertake due diligence available under
this Lease. Landlord does not represent, warrant or guaranty the accuracy of any
of the reports provided which have been prepared by third parties, and provides
them under this provision solely as an accommodation to Tenant. Landlord does
agree that it will notify Tenant of any material misstatements included in any
such reports which are known by Landlord's senior management.
SECTION 4.2. LEGAL DESCRIPTION. As soon as practicable following execution of
this Lease, Landlord shall secure a survey outlining the precise description of
the Land in accordance with the approximate dimensions set forth on Exhibit 1.5.
Tenant shall have 10 days after receipt of the proposed survey to notify
Landlord of any reasonable objections it has to the legal description. If Tenant
does not object, the legal description proposed by Landlord shall constitute the
definition of the Land under Section 1.5. If Tenant objects, the parties shall
endeavor to agree on the legal description of the Land, and any agreed
description shall thereafter be deemed to constitute the definition of the Land
under Section 1.5. If the parties are unable to agree on the legal description
within 14 days after Landlord's receipt of Tenant's objection to the survey, the
Land shall be deemed be described as originally designated by Landlord in
accordance with this provision. In such case, Tenant shall have an additional
period of 30 days to terminate the Lease. Landlord shall have the right to
replat the Shopping Center, including the Land, in accordance with the legal
description adopted under this provision. Tenant shall not object and join in
any replating to the extent required by law. Nothing contained in this provision
shall obligate Landlord to pay any portion of any ALTA survey obtained by
Tenant.
SECTION 4.3. APPROVAL OF PLANS AND SPECIFICATIONS. Landlord acknowledges that it
has approved Tenant's preliminary plans for Tenant's Work which are annexed
hereto as Exhibit 4 and Tenant's proposed signage annexed hereto as Exhibit 5
made a part hereof (herein "Tenant's Preliminary Plans"). Within sixty (60) days
following the Effective Date, Tenant shall submit to Landlord for Landlord's
prior approval, the proposed working plans and specifications for Tenant's Work,
including Tenant's signage and final site plan. Landlord's approval or
disapproval (and the reasons for any disapproval) shall be communicated to
Tenant within ten (10) business days following Landlord's receipt of Tenant's
plans and specifications for Tenant's Work. If Landlord disapproves any portion
of Tenant's plans and specifications, Tenant shall, within a reasonable period
of time after Landlord's disapproval, submit substitute plans and specifications
or portions thereof for Tenant's Work which satisfy Landlord's reasons for
disapproval, and the same provisions as hereinabove set forth in this Section
shall apply with respect to Landlord's approval or disapproval of such
substitute plans and specifications or portions thereof and, if necessary,
Tenant shall resubmit such plans and specifications until same have been
approved by Landlord; provided, however, if Landlord disapproves of such plans
and specifications more than twice, then Tenant may terminate this lease within
fifteen (15) days following any disapproval of such plans and specifications by
Landlord after the second disapproval by Landlord of the same. When such plans
and specifications have been approved by Landlord (herein the "Approved Plans"),
sets of the Approved Plans shall be signed by Landlord and Tenant, and at least
one (1) set so signed shall be delivered to each party.
SECTION 4.4. PERMITS. Promptly following the Effective Date and receipt of
Approved Plans, Tenant shall apply to the appropriate governmental authorities
for such licenses, permits and any other administrative approvals including,
without limitation, building permits, zoning, business permits, liquor licenses
and signage permits as may be necessary to construct and operate a Granite City
Restaurant (herein collectively "Permits"). If, after Tenant's diligent efforts
through such administrative processes as are reasonably and normally required,
Tenant is unable to obtain all necessary Permits within one hundred twenty (120)
days following the
Effective Date, then Landlord and Tenant each shall have the right to terminate
this Lease by giving the other notice to that effect within one hundred thirty
(130) days following the Effective Date.
SECTION 4.5. SOIL TESTS. Subsequent to the Effective Date, Tenant shall have the
right, at its cost, to have test borings and other engineering studies and tests
performed with respect to the Land. Landlord hereby grants to Tenant and to
Tenant's agents, contractors and engineers a license to enter upon the Land for
the purpose of conducting such borings, studies and tests, all at Tenant's own
risk. Prior to the Delivery Date, Tenant shall not be deemed to have accepted
possession of the Land solely by reason of any such entry for the purposes
stated in this Section. If such test borings and other engineering studies and
tests indicate that the Land is not suitable for the construction of the
Improvements and the operation of the Premises in accordance with the provisions
of this Lease, then Tenant shall have the right to terminate this Lease by
giving Landlord written notice to that effect within one hundred twenty (120)
days after the Effective Date.
SECTION 4.6. DISCOVERY OF HAZARDOUS MATERIALS. If within 120 days after the
Effective Date, Tenant discovers the existence of any Non-Tenant Installed
Hazardous Materials, as that term is defined in Section 14.4, on the Premises,
Tenant shall have the right to demand, in writing, that Landlord remove or
otherwise dispose of all Hazardous Materials at Landlord's cost. If, within 30
days after demand therefore Landlord has not commenced in good faith to take the
necessary remedial action to remove the Hazardous Materials, Tenant may, within
60 days thereafter, terminate this Lease.
SECTION 4.7. TITLE. Tenant shall have the right, at its cost and expense, to
obtain a title search or title insurance commitment and an ALTA survey with
respect to the Land. If any such title search or commitment or survey reveals
any encumbrances, easements, restrictions, reservations, rights or conditions of
record other than Permitted Encumbrances that (i) would prevent or interfere
with the construction of the Improvements and/or the operation of' the Premises
as contemplated by this Lease or (ii) would otherwise impair Tenant's rights or
leasehold interests under this Lease, then Tenant shall have the right to notify
Landlord of its intent to terminate this Lease no later than one hundred twenty
(120) days after Tenant the Effective Date. Unless Landlord cures any such
objections and defects in title within thirty (30) days after written
notification to Landlord by Tenant, or in good faith commences to cure any such
defect which can not be cured within thirty (30) days within the thirty (30) day
period and cures the defect within 120 days after the Effective Date, Tenant
shall have the right to terminate this Lease. Landlord agrees to use its best
efforts to cure any such objections and defects, but in no event shall Landlord
be required to cure any such objections and defects if the cost of curing the
same would exceed Ten Thousand ($10,000.00) Dollars.
SECTION 4.8. TENANT'S FINANCING. Tenant shall use its best efforts to secure
financing to enable Tenant to construct the Improvements on the Land as required
by this Lease. If such financing can not be obtained, Tenant shall, at any time
prior to the commencement of the construction of the Improvements, but no later
than one-hundred twenty (120) days after the Effective Date, have the right to
cancel this Lease by written notice to Landlord.
SECTION 4.9. TAX PARCEL. Landlord shall, with Tenant's cooperation, if
necessary, have the City of Fargo designate the Premises as a separate tax
parcel within 120 days following the execution of this Lease. Should Landlord be
unable to have the Premises designated as a separate tax parcel, Tenant shall,
at any time prior to the commencement of the construction of the Improvements,
but no later than 120 days after the Effective Date, have the right to cancel
this Lease by written notice to Landlord.
SECTION 4.10. PRE-DELIVERY DATE TERMINATION. If this Lease is terminated
pursuant to the provisions of this Article 4, then upon such termination this
Lease shall become null, void and of no further force and effect and thereafter
Landlord and Tenant shall have no further rights, obligations or liabilities
under this Lease. No termination shall be allowed under this Article if the
notices of termination required hereunder are not provided to Landlord prior to
the Delivery Date. Notwithstanding anything in this Lease to the contrary,
Tenant shall not be entitled to terminate this Lease under this Article 4 after
Tenant has commenced construction of the Improvements or following June 1, 2001,
whichever is earlier.
ARTICLE 5. FIXED MINIMUM RENT
SECTION 5.1. MINIMUM RENT. Tenant covenants and agrees to pay Landlord at its
address specified above, or at such other place designated by Landlord, without
any prior demand therefor and without any deduction or set-off whatsoever, fixed
minimum rent for the Premises leased to Tenant hereunder for the period from the
Rent Commencement Date through the end of the twentieth (20th) Lease Year, shall
be payable at the rate of seventy-two thousand dollars ($72,000) per annum in
monthly installments of six thousand dollars ($6,000.00). Fixed Minimum rent
shall be payable in advance on the first day of each and every month during the
term of this Lease. If the Rent Commencement Date shall occur on a day other
than the first day of any calendar month, Tenant shall pay fixed minimum rent on
the Rent Commencement Date a sum equal to the monthly installment of fixed
minimum rent due in the first Lease Year times a fraction, the numerator of
which is total number of days in the month on and after the Rent Commencement
Date, and the denominator of which is the total number of days in the month.
ARTICLE 6. PERCENTAGE RENT
SECTION 6.1. PAYMENT OF PERCENTAGE RENT. In addition to fixed minimum rent,
Tenant agrees to pay Landlord during each Lease Year during the entire term of
this Lease at Landlord's designated office, without prior demand therefor, and
without any deduction or set-off whatsoever, percentage rent equal to the
amount, if any, by which three percent (3%) of Tenant's "gross sales", (as
defined in Section 6.2) exceeds fixed minimum rent payable under this Lease for
such Lease Year, less the amount of any abatements or adjustments authorized
under this Lease for such Lease Year. Percentage rent shall be paid quarterly on
or before the 15th day of the month following the end of the third, sixth,
ninth, and twelfth months of each Lease Year and upon the expiration or earlier
termination of this Lease. The amount of percentage rent, if any, due for each
quarterly period shall be the amount by which the above percentage of Tenant's
cumulative "gross sales" transacted through the end of the most recent quarterly
period for the Lease Year in which said quarterly period falls, exceeds the sum
of the total fixed minimum rent paid by Tenant and the percentage rent
previously paid by Tenant for the same period. Upon receipt by Landlord of each
annual statement of Tenant's gross sales as provided hereafter, the amount of
percentage rent for the preceding Lease Year shall be determined. If Tenant's
quarterly payments for percentage rent are less than Tenant's liability for
percentage rent, Tenant shall pay the difference to Landlord within 30 days
after billing. If Tenant's quarterly payments for percentage rent are in excess
of Tenant's liability for rent for the applicable Lease Year, Landlord may apply
such excess to future rents or other obligations Tenant may owe to Landlord;
provided that if Tenant is not in default under this Lease and this Lease
remains in effect, Tenant shall upon written request to Landlord, have the right
to obtain a refund of the excess rent paid. Gross sales during the any partial
month prior to the commencement of the first Lease Year shall be included with
the gross sales of the first full quarter.
SECTION 6.2. GROSS SALES DEFINED. The term "gross sales", as used in this Lease,
means the actual price charged for the sale, lease, or license of goods, wares,
merchandise, beverages, food or for services attributable to business performed
in, on, or from the Premises by Tenant or by Tenant's lessees, concessionaires,
and licensees occupying space in the Premises, whether for cash or on credit,
(including all lay-by, credit, and finance, interest and service charges charged
in connection with sales or other dealings from the Premises), even though such
sales or services are ordered by telephone, mail, telegraph or otherwise. The
full price charged for each sale, lease or license of goods made on the Premises
shall be included in computing "gross sales" regardless of whether: i) the
transaction was made by Tenant, Tenant's sublessee, concessionaire or licensee
as a consignee, trustee or agent for a third party; or ii) another party is
entitled to retain all or a portion of the price payable for the transaction as
its own property. The following shall be excluded from gross sales: (a)
discounts and allowances; (b) refunds and credits for exchanged or returned
merchandise; (c) tips and gratuities paid directly to employees of Tenant and
not includable as gross income on Tenant's (or Tenant's sublessee or licensee's)
federal income tax returns (d) sales, luxury or excise taxes collected by Tenant
from customers, imposed by and paid over to federal, state or local governmental
authority, levied in whole or in part upon the basis of retail sales made in, on
or from the premises; (e) gift certificates until redeemed; (f) insurance
proceeds received with respect to inventory or other goods damaged or destroyed;
(g) receipts from
coin telephones except to the extent of commissions or other charges received
therefrom; (h) gross receipts from the sale of merchandise by third parties from
vending machines located on the Premises, except for the net rentals,
commissions, or receipts, however denominated, retained by or payable to Tenant
for such transactions; (i) sales of trade fixtures or store equipment after use
thereof on the Premises; (j) transfers of merchandise between stores of Tenant,
provided no transfer is made to avoid liability for percentage rent; (k) parcel
post and delivery charges; (l) complimentary or discounted sales and sales to
employees provided that the amount of such excluded sales does not exceed three
percent (3%) of tenant's gross sales per Lease Year; (m) lottery or similar
sales except to the extent of net commissions, rents or other charges paid to
Tenant as a result thereof. If after a credit sale has been included in gross
sales it is written off as a bad debt, the unpaid amount of the credit sale and
finance, interest and service charges may be deducted from any statement of
gross sales made after the unpaid amount is written off as a bad debt, but shall
be included again in later statements if later collected.
SECTION 6.3. SALES RECORDS. For the purpose of ascertaining the amount payable
as percentage rent, Tenant agrees to prepare, keep, and make available on the
Premises, or Tenants main business office, or other location approved in writing
by Landlord, for a period of not less than three years following the end of each
Lease Year, adequate records which shall show inventories and receipts of
merchandise at the Premises, and daily receipts from all sales and other
transactions on or from the Premises by Tenant and any others conducting any
business upon or from the Premises. Tenant shall record at the time of sale, in
the presence of the customer, all receipts from sales or other transactions,
whether for cash or credit, in a cash register or in cash registers having a
cumulative total which shall be sealed in a manner approved by Landlord, or
having such other features as shall be approved by Landlord. Tenant further
agrees to retain and make available for at least three years following the end
of each Lease Year the gross income, sales and occupation tax returns and all
pertinent original sales records. Pertinent original sales records shall
include: (a) serially numbered sales slips; (b) records of all mail and
telephone orders at and to the Premises; (c) settlement report sheets of
transactions with sub-tenants, concessionaires and licensees; (d) records
showing that merchandise returned by customers was purchased at the Premises by
such customers; (e) records of merchandise taken out on approval; (f) other such
sales records, if any, which would normally be examined by an independent
certified public accountant pursuant to accepted auditing standards in
performing an audit of Tenant's sales; (g) daily bank deposits and
reconciliations of such records with sales; and (h) the records specified in (a)
to (g) above of sub-tenants, assignees, concessionaires, or licensees.
SECTION 6.4. SALES STATEMENTS. Within 15 days after the end of each month during
the term of this Lease, Tenant shall furnish to Landlord a statement setting
forth Tenant's gross sales transacted during such month. In addition, within 15
days after the end of each quarterly period for which percentage rent is
payable, Tenant shall furnish to Landlord a statement, signed and verified by
Tenant or an authorized officer, of Tenant's gross sales transacted during such
quarterly period; and within 60 days after the end of each Lease Year and the
end of the Lease term, Tenant shall furnish to Landlord an annual statement of
gross sales transacted during the preceding Lease Year or to the date of
termination, whichever is applicable. The annual statement shall contain the
certification of an officer of Tenant to the effect that the statement is full,
complete and accurate.
SECTION 6.5. EXAMINATION AND AUDIT. Tenant agrees that acceptance by Landlord of
payments of percentage rent shall be without prejudice to Landlord's right of
reasonable access to Tenant's accounting system to examine Tenant's books and
records as necessary in order to verify or establish the true amount of gross
sales made by Tenant and others in and from the Premises. Tenant also agrees
that Landlord, at its option, may cause, at any reasonable time upon not less
than forty-eight hours prior written notice, a complete audit to be made of
Tenant's books and other records relating to reported gross sales for the period
covered by any statement issued by Tenant as above set forth, and received by
Landlord within the preceding three Lease Years. If any audit shall correctly
disclose a liability for rent to the extent of two percent (2%) or more in
excess of percentage rent theretofore computed and paid by Tenant for such
period, Tenant shall promptly pay Landlord the reasonable cost of the audit in
addition to the deficiency in percentage rent, which deficiency shall be payable
in any event. Information concerning Tenant's sales obtained by Landlord as a
result of these provisions shall be held in confidence except where required to
supply information to a mortgagee, or
prospective or existing lenders or buyers and except where the information is
required to be divulged as a result of litigation or arbitration proceedings.
Landlord shall also be authorized to include Tenant sales information in
compilations of Shopping Center sales in gross, or allocated to categories of
business established by Landlord, provided that Tenant's name or other
identifying information from which a party could determine Tenant's separate
sales shall not be disclosed.
ARTICLE 7. CONSTRUCTION OF IMPROVEMENTS
SECTION 7.1. TENANT'S IMPROVEMENTS. Tenant shall, at its sole cost and expense
and in accordance with Approved Plans, as defined below, construct the
Improvements in compliance with Governmental Requirements (as defined in Section
7.3 of this Article), and compliance with the provisions of this Lease, which
Improvements shall include all facilities and appurtenances necessary for the
use and operation of the Premises in the manner required by Section 8.1.,
including, without limitation:
7.1.1. Construction of an approximately 8,750 square foot, one-story
building in accordance with the design and concept of a Granite City
Restaurant. Said construction shall include, but not be limited to, all
site work and grading work, excavation, necessary foundation, ceilings,
walls, doors, plumbing and water, electrical, telephone, heating,
ventilating, and air conditioning, telephone, and other building
features, details, appurtenances, fixtures, and equipment which are
generally necessary and customary in connection with a Granite City
Restaurant and beverage operation. The building shall be constructed on
location approved by Landlord. The exterior to the Building shall be
constructed with brick and efis or stucco.
7.1.2. All utility and service lines necessary to connect the building
to service and access lines including, but not limited to, all water
lines, sewer lines, electric lines, if desired, and telephone lines.
7.1.3. The necessary grading, compacting, and paving to provide
driveways, walkways and parking areas. Parking areas shall striped for
parking on 818" depths. Parking areas and driveways shall be fully
drained by natural landscape slope. All Parking Areas shall be lighted
to a minimum brightness of 1 foot candles at parking lot level with a
minimum to maximum brightness ratio of 3. Lighting of the parking lot
shall equal 3 foot candles at parking lot level. All drives shall be
constructed as shown on the Site Plan for the Premises with no less
than 261 inch widths. The drives shall be generally lighted to a
brightness approximating 3 foot candles at parking lot level.
7.1.4. All isles, curbs, planters, and landscaped areas, signage,
utilities, parking and lighting facilities, driveways, curb cuts, and
sidewalks.
7.1.5. A pond (water feature) including a fountain on the area so
identified in the Site Plan for the Premises. Landlord shall have
thirty (30) days from the Effective Date to notify Tenant of Landlord's
decision to provide Tenant with the current center court fountain
feature located in the West Acres Mall. If Landlord decides to provide
said center court fountain, Landlord agrees, at its expense, to remove
and supply for Tenant's use the current center court fountain feature
located in the West Acres Mall. Tenant shall be responsible for the
costs of reincorporating the components into a fountain which will
operate in the pond. Landlord shall continue to own the fountain,
subject to Tenant's right to use the fountain during the term of this
Lease. Upon termination of the Lease, the fountain feature shall
revert, with the remainder of the Premises, to Landlord. Tenant shall
be responsible for insuring, preparing and maintaining the fountain
throughout the term of the Lease.
All Improvements to be constructed by Tenant, whether or not specifically
enumerated herein, are referred to herein collectively as "Tenant's Work".
Subject to Section 27.2, Tenant's Work shall be substantially complete by no
later than December 1, 2001.
SECTION 7.2. LANDLORD'S IMPROVEMENTS. Landlord agrees, at its expense, to
provide storm sewer, sanitary sewer, water lines and electrical power to
locations near or adjacent to the outside boundary of the Land. Other than such
improvements, Landlord shall have no obligation to make any improvements or
modifications to the Premises or for the benefit of the Premises. Tenant
acknowledges that Landlord has removed the pile of dirt located on the Premises,
and that Landlord shall not be required to make any further site improvements
with respect to the Premises. Tenant further acknowledges that the storm sewer,
sanitary sewer, and water lines located in the center of a constructed street
shall be considered near or adjacent to the outside boundary of the Land for the
purpose of this provision.
SECTION 7.3. CONSTRUCTION OF TENANT'S IMPROVEMENTS. After receipt of Landlord's
approval of Tenant's Approved Plans required under Section 4.3 and all Permits
required by Section 4.4 and Tenant's waiver of its right to terminate this Lease
under any of the provisions of Article 4 (the "Delivery Date"), Tenant be
entitled to access to the Premises for the sole purpose of constructing the
Improvements on the Premises in the manner required hereunder. Notwithstanding
Tenant's failure to expressly waive its rights under Article 4, commencement of
construction of the Improvements shall be deemed a waiver of Tenant's right to
terminate this Lease under any of the provisions of Article 4.
Tenant shall enter into construction contracts for the Improvements with
licensed bondable general contractors or contractor, provided that Tenant shall
not be required to obtain any performance or payment bonds. Promptly after the
Delivery Date, Tenant shall cause said contractors to commence the Improvements
and prosecute the same diligently to completion in a good and workmanlike
manner, all in strict conformance with Approved Plans. Tenant and its
contractors shall perform and complete the Improvements in a good, safe and
workmanlike manner in accordance with all applicable laws, building codes,
zoning ordinances and other rules and regulations of all federal, State, county
and municipal governmental and public authorities and agencies having
jurisdiction (herein collectively "Governmental Requirements"). The Improvements
shall be undertaken in a manner which does not interfere with other occupants of
the Shopping Center, and in accordance with applicable laws, regulations,
ordinances and requirements of governmental authorities and board of fire
underwriters having jurisdiction. During the period between the Delivery Date
through the date immediately preceding the Rental Commencement Date, Tenant
shall occupy the Premises in accordance with all terms, covenants and conditions
of this Lease, provided that Tenant shall be under no obligation to pay rents
and other charges owing hereunder, except those owing under Article 19. Tenant
shall erect or cause to be erected construction barricades enclosing the area of
such construction if the same is necessary to comply with Governmental
Requirements. In the event Tenant fails to erect such construction barricades
within five (5) days after notice from Landlord, then, if necessary to comply
with Governmental Requirements, Landlord shall have the right, but not
obligation, to erect the same at Tenant's cost and expense. Tenant shall not
store any materials on Common Areas outside of the Premises, nor allow any
debris, dust or refuse to accumulate outside the Premises. Unless expressly
approved by Landlord in writing, drainage from the Premises shall be directed
away from the Common Areas of the Shopping Center outside the Premises. Tenant
shall repair at its expense any damage to the Shopping Center property caused by
Tenant's construction activities.
SECTION 7.4. OWNERSHIP OF IMPROVEMENTS AND FIXTURES. During the term of this
Lease and any renewals provided for in this Lease, Tenant shall be deemed the
owner of Tenant's Improvements including the Common Areas on the Premises, and
Tenant shall be entitled to the tax benefits associated with said ownership,
provided that Landlord shall be entitled to any applicable deductions or credits
with respect to any Improvements paid for, repaired or maintained by Landlord.
All Improvements made by or on behalf of either party, including, without
limitation, the building, parking areas, landscaping, driveways, walkways,
parking areas, and other Common Areas, together with any alterations, fixtures,
installations, additions and improvements made thereto, unless Landlord
otherwise elects by giving notice thereof to Tenant not less than thirty days
following the expiration or other termination of this Lease), shall become the
property of Landlord and shall remain upon and be surrendered with the Premises
as a part thereof at the expiration or sooner termination of this Lease. Movable
furniture, trade fixtures, kitchen equipment, and other personal property not
affixed to the Land or Building, which is acquired by Tenant at its expense
shall remain its property and may be removed at any time, provided Tenant
promptly repairs any damage caused by such removal.
ARTICLE 8. USE OF PREMISES
SECTION 8.1. USE OF PREMISES. Tenant agrees that the Premises shall be operated
and used in compliance with Governmental Requirements solely for the purpose of
conducting a retail restaurant, bar, brewery, and related uses, and for no other
use or purpose.
SECTION 8.2. OPERATION OF BUSINESS. Commencing on the Opening Date and
thereafter continuously through the end of the term of this Lease, except during
any times when Tenant may be prevented by reason of the events specified in
Articles 16 and 17 and Section 27.2 hereof, Tenant agrees that it will: (i)
conduct its business at the Premises daily during all hours which are regular
and customary for other restaurants in the upper Midwest area and at all times
the Shopping Center is open for business, provided that Tenant shall not be
required to be open for periods beyond Monday through Saturday from 11:00 a.m.
to 1:00 a.m. the following day, and Sunday from 10:00 a.m. to Midnight. Tenant
shall be excluded from opening for business during periods of time when Tenant
is reasonably required to be closed, consistent with sound business judgment,
for remodeling or repair, or reconstruction after damage or for periods of time
when utilities necessary to serve the Premises are not available.
SECTION 8.3. NEGATIVE COVENANTS. With respect to Tenant's use of the Premises
and the Shopping Center, Tenant agrees that it will not at any time during the
term of this Lease, without first obtaining the Landlord's prior written
consent: (i) use any loudspeakers, phonographs or other devices of similar
nature in such a manner as to be unreasonably heard outside of the restaurant
building; (ii) permit the emission of any unreasonable levels or amounts of
noise, objectionable odors or fumes, smoke or objectionable light from the
Premises; (iii) use any flashing or strobe lights visible to public view outside
of the Premises; or (iv) burn any rubbish or trash in or about the Premises.
SECTION 8.4. PROHIBITED USES. The Premises shall not be used by Tenant nor any
assignee, license or other occupant of the Premises for the sale, rent or sale,
rent or service (and, if applicable, installation in motor vehicles) of
electronic equipment or appliances (including, without limitation, televisions,
stereos, video recorders), major household appliances (including, without
limitation, refrigerators, freezers, stoves, microwave ovens, dishwashers,
washers and dryers), personal computers and peripherals, computer software, car
radios, stereos, tape decks or phones, entertainment software including compact
discs, music videos and prerecorded tapes, telephones, telecopy, facsimile and
photocopy machines, or photographic cameras or equipment and other related
items. In the event of any breach of this provision, Landlord shall have all
remedies given to it at law or in equity, including the right to injunctive
relief and damages.
ARTICLE 9. PAYMENT OF TAXES, ASSESSMENTS, ETC.
SECTION 9.1. TENANT'S OBLIGATION. Tenant agrees to pay when due all real estate
taxes, assessments, and other governmental charges, general and special,
ordinary and extraordinary, of any kind and nature whatsoever, assessed during
the term of this Lease on the Premises, including, but not limited to, general
real estate taxes, taxes in lieu thereof which may be levied or assessed by any
lawful authority against the Premises, assessments for public improvements or
benefits which shall during the term of this Lease become due and payable and a
lien upon the Premises, or any part thereof; and any tax, fee or excise on
rents, the square footage of the Premises, on the act of entering into this
Lease, or on the occupancy of the Tenant, or any other tax, fee or excise,
however described, on account of the rent reserved hereunder or the business of
the renting the Premises, now or hereinafter levied on or assessed against the
Landlord, (all of which taxes, assessments, levies, and other governmental
charges are herein collectively "Taxes"). For the years in which this Lease
commences and terminates, Tenant's liability for its portion of the taxes for
such year shall be subject to a pro rata adjustment based on the number of days
in the year this Lease was in effect. A copy of a tax xxxx or assessment
submitted by Landlord to Tenant shall at all times be conclusive evidence of the
amount of taxes assessed or levied upon the property to which such xxxx relates.
If Tenant waives its right to terminate the Lease as a result of the Premises
not being designated a separate tax parcel then, absent any other amendment or
clarification of the Lease at such time, Tenant shall be obligated to pay its
prorata share of taxes with respect to the assessed parcel (a) as to the land by
dividing the square foot area of the Land by the square foot area of the land
included in the tax parcel. If no separate tax is allocated to the land, the
taxes allocable to the Land shall be determined on the basis of the last tax
statement prior to the inclusion of any Improvements on the parcel multiplied by
the percentage increase in the general tax rate from the date of such statement
to the statement current year, and adjusted for increases or decreases in the
amount of any special assessments levied against the taxed parcel; (b) the
remainder of the taxes shall be allocated prorata based on the floor area of any
Improvements on the land on the parcel included in the tax statement.
SECTION 9.2. PERSONAL PROPERTY TAXES. Tenant shall at all times be responsible
for and pay, before delinquency, all taxes levied, assessed or unpaid upon any
leasehold interest, any right of occupancy or use, any investment of Tenant in
the Premises, or any personal property of any kind owned, installed, or used by
the Tenant, including Tenant's leasehold improvements or taxes on Tenant's right
to occupy or use the premises.
ARTICLE 10. DISCHARGE OF LIENS
SECTION 10.1. LIENS AND ENCUMBRANCES. Except for the right granted to Tenant to
mortgage its interest under this Lease pursuant to the provisions of Article 22
hereof, Tenant shall not create or permit to be created or permit to remain, any
lien, encumbrance or charge derived from or through Tenant which might be or
become a lien, encumbrance or charge upon the Premises or the Shopping Center,
or any part thereof, and Tenant shall not suffer any other matter or thing
derived from or through Tenant whereby the estate, rights and interest of
Landlord or Landlord's designees in the Shopping Center, or any part thereof,
might be impaired, provided however, that any mechanic's and/or material men's
liens filed against the Premises, the Shopping Center or any part thereof, for
which Tenant is responsible may be discharged or bonded in accordance with
Section 10.2.
SECTION 10.2. MECHANIC'S LIENS. Tenant shall do all things reasonably necessary
to prevent the filing of any mechanics' and/or material men's liens against the
Premises, the Shopping Center or any part thereof by reason of work, labor,
services or materials furnished or claimed to have been furnished to Tenant or
anyone occupying the Premises, or any part thereof, by through or under Tenant.
If any such mechanics' and/or material men's lien shall at any time be filed
against the Premises, the Shopping Center, or any part thereof, as the result of
work, labor, services or materials furnished or claimed to have been furnished
to Tenant or anyone occupying the Premises, or any part thereof, by, through or
under Tenant, then Tenant shall cause the same to be discharged of record within
thirty (30) days after Tenant has knowledge of the filing of same or if Tenant
in its discretion and in good faith determines that such lien should be
contested, Tenant shall furnish such security or bond as may be required by law
to prevent any foreclosure proceedings against the Premises or the Shopping
Center, or any part thereof, during the pendency of such contest. Nothing herein
contained shall imply any consent or agreement on the part of Landlord to
subject Landlord's estate to liability under any mechanics' and/or material
men's lien law.
ARTICLE 11. ALTERATIONS AND IMPROVEMENTS
SECTION 11.1. TENANT'S ALTERATIONS. Tenant shall have the right during the term
of this Lease after completion of the initial construction of Improvements to
make changes and alterations to the Improvements and to construct and maintain
on the Premises such additional improvements, fixtures and facilities as Tenant
in its reasonable business judgment deems desirable for the operation of the
Premises in accordance with this Lease, and to remove the same or any part
thereof; provided that upon such removal, the same shall be replaced by Tenant
with similar improvements, fixtures or facilities of at least equal utility,
value and quality, excepting fixtures or facilities removed because of
obsolescence. Prior to any such changes, alterations or additions, Tenant shall
first obtain all required Permits and, if any such change, alteration, addition
or removal is either: i) is structural in nature; ii) involves any modification
in the appearance of the exterior of the
premises; or iii) the estimated cost of any non-structural or interior change,
alteration, addition or removal is Fifty Thousand Dollars ($50,000) or more, the
written approval of Landlord shall be obtained. All exterior modifications and
additions shall be architecturally harmonious with the Shopping Center buildings
and, as to any addition to Tenant's main restaurant building, the existing
building. All additions and improvements shall be at the approximate height of
and construction of materials consistent with the Improvements as initially
constructed. No exterior modification or addition which will affect the
visibility of or access to the Shopping Center will be allowed.
Landlord's approval of Tenant's plans and specifications for any such changes,
alterations or additions shall not be unreasonably withheld. Landlord shall be
deemed to have reasonably withheld consent to any addition, modification or
improvement requested by Tenant for any reasonable justification, including,
without limitation, any of the following: (a) if the proposed improvements are
inconsistent with any of the requirements Landlord's design criteria in effect
on the date of the improvement; (b) if the proposed addition or modification
will result in the breach of the terms and conditions of any lease, reciprocal
easement or operating agreement, mortgage, or other agreement to which Landlord
is a party; (c) if Landlord is not able to obtain the consent of any party to
any lease, reciprocal easement or operating agreement, mortgage, or other
agreement required before the proposed addition can be constructed; (d) if the
proposed construction will result in the violation of any covenant, term or
condition of this agreement including all then existing parking requirements;
(e) failure of Tenant to provide adequate evidence of financing for the
improvements; (f) if Tenant fails to provide adequate financial security,
including a payment bond, if requested, assuring payment of all contractors and
suppliers supplying labor or materials for the improvement; (g) if at the time
of the request, Tenant is in violation of any term or condition of this
Agreement; or (h) with respect to any exterior addition or modification to the
Premises if, in Landlord's judgment, the proposed modification or addition will
either: i) impair the visibility of other Shopping Center buildings, signs, or
properties adjacent to the Premises; ii) impede access in and around the
Shopping Center or to properties adjacent to the Premises; iii) conflict with
planned additions to the Shopping Center; iv) not be architecturally harmonious
with and of the same quality as other buildings in the Shopping Center.
All such changes, alterations, additions and removals permitted hereunder and/or
approved by Landlord shall be performed by Tenant at Tenant's sole cost and
expense and in compliance with all Governmental Requirements. Nothing contained
in this Article shall relieve Tenant of its obligations elsewhere set forth in
this Lease.
SECTION 11.2. TENANT'S SIGNS. Tenant will not place or suffer to be placed or
maintained anywhere on any exterior door, wall or window of the Premises any
sign, awning or canopy, or advertising matter or other thing of any kind, and
will not place or maintain any decoration, lettering or advertising matter on
the glass of any window or door of the Premises without first obtaining
Landlord's written approval and consent. Signs shall be harmonious to the
general exterior architectural treatment of the buildings in the Shopping Center
and must comply with sign criteria specified by Landlord.
ARTICLE 12. REPAIRS AND MAINTENANCE
SECTION 12.1. TENANT'S OBLIGATION. Except for Landlord's obligations pursuant to
the provisions hereof and the provisions of Section 24.4. hereof (relating to
Landlord's obligation to maintain the Common Areas, including the Common Areas
on the Premises), Tenant agrees, at its sole cost, and expense, that it will
throughout the term of this Lease, take good care of the Premises and it will
keep same in good repair, order and condition, and in a clean and orderly
condition, free of dirt, rubbish and unlawful obstructions, and that it will
make all necessary repairs thereto, interior and exterior, structural and
nonstructural, ordinary and extraordinary, foreseen and unforeseen. As used
herein, the term, "repairs" shall include all necessary replacements, renewals,
alterations, additions and betterments. All repairs made by Tenant shall be at
least equal in quality and utility value to the original work. Except for
Landlord's Work and except as otherwise specifically required by Section 24.4
hereof, Landlord shall not be required to furnish any services or facilities
or to make any repairs or alterations with respect to the Premises, and Tenant
hereby assumes the full and sole responsibility for the condition, operation,
repairs, replacement, maintenance and management thereof.
Tenant shall be responsible for maintaining in good order and repair and in a
safe condition, and free of snow, ice, debris, or other obstruction, all
sidewalks and walkways adjacent to the Premises which are not included in the
Common Areas on the Premises. Tenant shall be required to repair and replace of
walkways and service ways which may become out-of-repair or in a dangerous
condition. Tenant shall also be obligated, at its sole expense, to maintain in a
good and operational condition, the pond feature on the Premises, and fountain
located thereon, and it shall at all times ensure that adequate levels of water
are maintained, that the pond is free of noxious weeds visible from the
Premises, and free of any organic or other material causing any noxious odor
emanating from the pond. Tenant shall be solely responsible for safe access and
use of the pond area and shall, at its expense, take any and all reasonable
steps to prevent loss of life or personal injury as a result of the presence of
the pond. Tenant shall at all times provide adequate drainage so that the pond
and water feature does not flood onto the Common Areas or adjacent properties.
Tenant shall, at its expense, maintain in good condition the landscaped areas
adjacent to the Premises not included as part of the Common Areas on the
Premises, including as applicable and without limitation, periodic mowing,
watering, trimming, removal of rubbish, and replacement of plants, shrubs and
tree, as may be necessary to keep the landscaped areas in first class condition.
SECTION 12.2. WASTE OR NUISANCE. Tenant shall not commit or allow to be
committed any waste upon the Premises or any nuisance or other act or thing
which may disturb the quiet enjoyment of any other tenant of the Shopping
Center, or which may disturb the quiet enjoyment of any person within five
hundred feet of the boundaries of the Shopping Center.
ARTICLE 13. GOVERNMENTAL REQUIREMENTS; INSURANCE STANDARDS
SECTION 13.1. GOVERNMENTAL AND INSURANCE REQUIREMENTS. Throughout the term of
this Lease, Tenant agrees, at its sole cost and expense, that it will promptly
comply in every respect with all Governmental Requirements now in force or that
may be duly enacted hereafter, foreseen and unforeseen, whether or not
compliance therewith shall require changes to the Improvements and whether or
not such changes are structural or nonstructural, interior or exterior, ordinary
or extraordinary or otherwise. Tenant also agrees, at its sole cost and expense,
that it will promptly comply in every respect with all terms and provisions of
its insurance policies covering or applicable to the Premises or any part
thereof. Tenant agrees, at its sole cost and expense, that it will make all
additions, repairs and alterations to the Premises, and other facilities thereon
which are or hereafter may be required in order to comply with the foregoing.
Tenant agrees, at its sole cost and expense, that it will also observe and
comply with the requirements of all policies of public liability, fire and all
other policies of insurance at any time in force with respect to the Premises.
Tenant covenants and agrees to indemnify and save Landlord harmless from any
penalties, damages, or charges imposed for any violation of the covenants and
obligations of Tenant set forth in this Article, whether occasioned by neglect,
omission or willful act of Tenant or any person upon the Premises by license or
invitation of Tenant or holding or occupying the Premises or any part thereof
under, or by right of, Tenant, unless caused primarily by the neglect, omission
or willful act of Landlord or Landlord's contractors, agents or employees.
SECTION 13.2. TENANT'S RIGHT TO CONTEST. Tenant shall have the right to contest
by appropriate legal proceedings, without cost or expense to Landlord, the
validity of any law, ordinance, rule or regulation if such contest does not and
would not: i) interfere with the use or occupancy of any other premises within
the Shopping Center, or ii) subject Landlord to any fine or any civil or
criminal penalty, or iii) result in a forfeiture or seizure of the Premises. In
the event of any such contest, compliance with such law, ordinance, rule or
regulation legally contested by Tenant may be postponed if permitted by law
until the final determination of any such proceeding, provided that all such
proceedings shall be prosecuted by Tenant with due diligence and dispatch.
SECTION 13.3. FIRE EXTINGUISHERS. Tenant agrees to install and maintain chemical
extinguishing devices in and on the Premises as required by Governmental
Requirements and, throughout the term of this Lease, Tenant shall keep such
chemical extinguishing devices in good working order and repair and regularly
cleaned and serviced.
ARTICLE 14. HAZARDOUS MATERIALS
SECTION 14.1. TENANT'S HAZARDOUS MATERIALS. Tenant covenants and agrees that
Tenant shall at all times from and after delivery of possession of the Premises
to Tenant, be responsible and liable for, and be in complete and strict
compliance with, all "Governmental" laws, ordinances, rules and regulations
relating to "Environmental Protection", "Environmental Matters" and "Industrial
Hygiene" (as such terms are hereinafter defined) arising, directly or
indirectly, out of the use of "Hazardous Materials" in, on, under or about the
Premises or the Shopping Center by Tenant, its agents, servants, employees,
licensees, contractors, subtenants and Concessionaires. The term "Governmental"
as used herein shall include, without limitation, federal, state, and local
governments, and political subdivisions and regulatory agencies of federal,
state, and local governments. The term "Hazardous Materials" as used herein
shall include, without limitation, whether now or subsequently listed in any
Governmental listing or publication defining hazardous materials, substances
defined as: "hazardous substances", "hazardous materials", or "toxic substances"
in the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. Section 9601, ET SEQ.; the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801, ET SEQ.; the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, ET SEQ.; and any subsequent amendments
thereto, or replacement statutes thereof and ordinances, rules and regulations
adopted and publications promulgated pursuant to said laws. The terms
"Environmental Protection", "Environmental Matters" and "Industrial Hygiene" as
used herein shall include, without limitation, any matter which affects the
environment or which may affect the environment, the use of sophisticated
electrical and/or mechanical equipment, chemical, electrical, radiological or
nuclear processes, radiation, sonar and sound equipment, use of lasers, and
laboratory analysis and materials. Tenant shall be deemed to be (1) the person
in control, (2) an operator of the Premises and (3) the person in charge with
respect to the Premises for purposes of reporting requirements under the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended. Tenant agrees (i) that should it or its agents, servants, employees,
licensees, contractors, subtenants or Concessionaires know of the release or
threatened release of any Hazardous Materials, in, on, under or about the
Premises, including, without limitation, the release or threatened release of
any Hazardous Materials in connection with Tenant's Work, or in connection with
any alterations, replacements, installations, improvements and/or additions made
by Tenant to the Premises or any part thereof during the Term of this Lease,
that they will promptly notify Landlord of such release or threatened release,
and (ii) that it will provide all warnings of exposure to Hazardous Materials
in, on, under or about the Premises, as required by law, including, but not
limited to, all laws hereinabove referred to in this Section 14.1, as the same
may be amended from time to time, all ordinances, rules and regulations adopted
and publications promulgated thereunder, and all future laws or case decisions
to the same effect.
SECTION 14.2. COMPLIANCE WITH LAWS. Tenant further covenants and agrees, at its
sole cost and expense, to procure, maintain in effect, and comply with all
conditions of any and all permits, licenses, and approvals issued by
governmental agencies for Tenant's use of Hazardous Materials in, on, under or
about the Premises. Tenant shall prior to any use of the Premises affecting
Environmental Protection, Environmental Matters and Industrial Hygiene or
involving the use of Hazardous Materials, in, on, under or about the Premises,
notify Landlord in writing of the intended use of such Hazardous Materials and
promptly provide Landlord evidence of compliance with all Governmental laws,
ordinances, rules and regulations pertaining to such use. Tenant shall in all
respects handle, treat, deal with and manage any and all Hazardous Materials in,
on, under or about the Premises in strict conformity with all applicable
Governmental laws, ordinances, rules and regulations relating to Hazardous
Materials, Environmental Protection and Industrial Hygiene.
SECTION 14.3. ENVIRONMENTAL AUDIT AND REMOVAL. Should Landlord in good faith
have reasonable cause or suspicion to believe environmental conditions exist on
the Premises, or should any environmental review be
required by Landlord's prospective lender, purchaser, or investor in Landlord,
Landlord shall have the right, upon written notice to Tenant ("Landlord's
Notice"), at any time and from time to time during the Term of this Lease,
including, without limitation, (i) prior to the expiration or earlier
termination of the Term of this Lease, or (ii) in conjunction with a proposed
assignment of this Lease or a proposed sublease of all or a part of the Premises
requested by Tenant pursuant to the provisions of this Lease (in which event,
Tenant's satisfaction of its obligations under this Section 14.3 shall be a
condition precedent to Landlord's consent to any such proposed assignment or
sublease), to require Tenant to cause an environmental audit and survey (the
"Survey") to be made of the Premises, as soon as practicable, but in no event no
later than sixty (60) days following Landlord's Notice, by an environmental
consulting firm (the "Consulting Firm") approved and/or designated by Landlord
to determine whether the Premises contains any Hazardous Materials. Such
environmental audit and Survey shall be undertaken at Tenant's sole cost and
expense unless the environmental audit and Survey was the consequence of the
request of Landlord's prospective Lender, purchaser or investor, and no Tenant
Installed Hazardous Materials are found in violation of legal requirements. In
such case, Landlord shall be responsible for the cost of the environmental audit
and Survey. Tenant shall, upon completion of such Survey, promptly furnish to
Landlord a copy of such Survey prepared by the Consulting Firm. In the event
said Survey shall disclose the presence of Hazardous Materials in, on, under or
about the Premises, and if Landlord determines, based upon the original approved
Plans for Tenant's Work, or on the basis of any subsequent plans and
specifications submitted to Landlord pursuant to the terms of this Lease, or on
the basis of other information and data available to Landlord, that the
existence of said Hazardous Materials arose out of or is in any way connected
with the construction, use, manufacture, storage, sale, release or disposal of
Hazardous Materials or products containing Hazardous Materials by Tenant, its
agents, servants, employees, licensees, contractors, subtenants or
Concessionaires during the period of Tenant's occupancy of the Premises (the
"Tenant Installed Hazardous Materials"), (i) Tenant shall, at its sole cost and
expense, cause all of said Tenant Installed Hazardous Materials to be removed
from in, on, under or about the Premises and transported from the Shopping
Center for use, storage or disposal in compliance with all applicable laws by a
hazardous materials abatement contractor (the "Abatement Contractor") licensed
in the state in which the Shopping Center is located and approved by Landlord.
In the event such removal and disposal of the Tenant Installed Hazardous
Materials is performed by Tenant after the expiration or earlier termination of
the Term of this Lease, Tenant shall be deemed to be occupying the Premises as a
licensee at a monthly charge in an amount equal to average rent for the last
twelve months of this Lease term, which sum shall be charged to Tenant by
Landlord until the date Landlord receives certification from the Abatement
Contractor that all Tenant Installed Hazardous Materials have been removed from
in, on, under or about the Premises and transported from the Shopping Center for
use, storage or disposal, or (ii) Landlord may, at its sole option upon written
notice to Tenant, cause all of said Tenant Installed Hazardous Materials to be
removed from in, on, under or about the Premises and transported from the
Shopping Center for use, storage or disposal, in compliance with all applicable
laws, by a hazardous materials abatement contractor selected by Landlord, in
which event, the costs and expenses of such removal and disposal, as reasonably
estimated by Landlord, shall be paid to Landlord by Tenant, as Additional Rent,
within ten (10) days after receipt of an invoice therefor. In the event Tenant
fails to timely perform its obligations under this Section 14.3, Landlord shall
have the right (but shall not be obligated) to perform Tenant's obligations
under this Section 14.3, in which event, Tenant shall pay to Landlord, as
Additional Rent, promptly, upon demand, the costs and expenses thereof;
provided, however, in the event Landlord performs Tenant's obligations hereunder
after the expiration or earlier termination of the Term of this Lease, Tenant
shall pay to Landlord, in addition to the foregoing costs and expenses, a
monthly charge in an amount equal to the monthly charge determined pursuant to
the provisions of this Section from the date of expiration or earlier
termination of the Term of this Lease until the date Landlord has completed
Tenant's obligations under this Section. Landlord and Tenant agree that the
foregoing monthly charge represents a reasonable estimate of the financial
losses suffered by Landlord by Tenant's failure to timely perform its
obligations under this Section.
SECTION 14.4. NON-TENANT INSTALLED HAZARDOUS MATERIALS. Tenant shall have
no responsibility for Hazardous Materials introduced by Landlord or Landlord's
agents, employees and contractors (in their respective capacities as such herein
"Landlord's Agents") or for Hazardous Materials existing on, above or under the
Land prior to Landlord's delivery of the Land to Tenant pursuant to the terms of
this lease, or for
Hazardous Materials existing in any other portion of the Shopping Center, or for
Hazardous Materials that migrate to the Premises by air, groundwater or from any
other property or that are released, discharged or transported on, under, in,
above, to or from the Premises other than by Tenant or Tenant's Agents
(collectively "Non-Tenant Installed Hazardous Materials").
SECTION 14.5. LANDLORD'S APPROVAL. Tenant shall not take any remedial action in
response to the presence of Hazardous Materials in, on, under or about the
Premises, nor enter into any settlement agreement, consent decree or other
compromise in respect to any Claims [as such term is hereinafter defined in
Section 14.6 relating to Hazardous Materials] in any way connected with the
Premises, without first notifying Landlord of Tenant's intention to do so and
affording Landlord ample opportunity to appear, intervene or otherwise
appropriately assert Landlord's interest with respect thereto. This provision
shall not apply to action taken as a result of an lawful directive of any
governmental agency resulting from an emergency condition on the Premises,
provided Tenant notifies Landlord of such action as soon as practicable.
SECTION 14.6. INDEMNITY. Without limiting anything contained in this Article 14,
Tenant shall indemnify and hold Landlord harmless from and against any and all
claims, demands, losses, liabilities, penalties, damages, costs and expenses,
including without limitation, attorneys' fees and costs (collectively "Claims"),
arising out of or in any way connected with the use, manufacture, storage, sale,
release or disposal of Hazardous Materials or products containing Hazardous
Materials by Tenant, its agents, servants, employees, licensees, contractors,
subtenants or Concessionaires in, on, under or about the Premises during the
period of its occupancy of the Premises including, without limitation; (i) any
Claim by a federal, state or local Governmental agency or a private citizen
arising out of or in any way connected with the environmental condition of the
Premises; (ii) any Claim by any successor tenant, its agents, servants,
employees, licensees, contractors, subtenants or Concessionaires, arising out of
or in any way connected with the environmental condition of the Premises; and
(iii) the cost of any required or necessary repair, cleanup or detoxification
and the preparation of any closure or other required plans in connection
therewith. The indemnity obligations of Tenant under this Section shall survive
the expiration or earlier termination of the term of this Lease.
Landlord agrees to indemnify and hold Tenant harmless from and against any and
all Claims arising out of or in any way connected with the use, manufacture,
storage, sale, release or disposal of any Hazardous Materials or any products
containing Hazardous Materials on or under the Land by Landlord or Landlord's
agents, including without limitation: (i) any claim by a Governmental agency or
a private citizen arising out of or in any way connected with the environmental
condition of the Premises and (ii) the cost of any required or necessary repair,
cleanup or detoxification and the preparation of any closure or other required
plans in connection therewith.
SECTION 14.7. LANDLORD'S REPRESENTATIONS. Landlord represents that it is not
aware of any Hazardous Materials presently on or under the Land. Tenant agrees
to undertake such examination of the Premises as it deems necessary and
appropriate to verify the lack of Hazardous Materials thereon. Other than
expressly provided in this Lease, Landlord makes no warranty regarding the
condition of the Land.
ARTICLE 15. INSURANCE AND INDEMNITY
SECTION 15.1. CONSTRUCTION INSURANCE. Following the Delivery Date and at all
times during the making of any improvements or other construction on the
Premises by Tenant, or on Tenant's behalf, Tenant shall have and maintain in
full force builder's risk insurance (completed value form, if available) and
Workers Compensation insurance to the extent required by law. The limits of
liability of such builder's risk insurance shall be not less than Two Million
Dollars ($2,000,000.00) combined single limit for death, bodily injury and
property damage. Prior to the commencement of any such work, Tenant shall
provide Landlord a certificate of such insurance evidencing compliance with this
section.
SECTION 15.2. TENANT'S LIABILITY INSURANCE. Tenant shall, during the entire
period of its occupancy of the Premises, including the entire lease term and any
occupancy of Tenant prior to the commencement of Tenant's
obligation to pay rent, keep in full force and effect, at its own cost, a policy
of public liability insurance with respect to the Premises and the business
operated by Tenant and any of its subtenants, with a combined single limit of no
less than $2,000,000.00, including independent contractor's coverage and liquor
liability coverage. In addition, Tenant shall pay when due to the state worker's
compensation fund all amounts required by law to be paid by Tenant, and in the
event state law requires the procurement of worker's compensation insurance or
similar insurance, Tenant shall keep in full force and effect a policy affording
full statutory coverage at the statutory limits. All insurance shall be in one
or more responsible companies qualified to do business in North Dakota and
approved by Landlord, and a copy of the policy or a certificate of insurance
shall be delivered to Landlord. Not more frequently than once each five years
if, in the good faith opinion of Landlord's lender or Landlord's insurance
agent, the amount of public liability insurance required hereunder is not
adequate, Tenant shall increase its insurance coverage to the amount reasonably
requested or required by Landlord.
SECTION 15.3. TENANT'S PROPERTY INSURANCE. Tenant agrees to maintain in full
force during the term of this Lease, at its own cost and expense, (i) one or
more policies of fire and extended coverage, vandalism, malicious mischief and
sprinkler leakage insurance with "All Risks" endorsement, covering the
Improvements, such insurance to be in an amount equal to the full replacement
cost thereof less the cost of excavations, foundation, footings and underground
tanks, conduits, pipes, pilings and other underground items. Except as otherwise
provided in Article 16 hereof, the proceeds of such insurance shall be used to
repair and/or replace the Improvements.
SECTION 15.4. INSURANCE REQUIREMENTS. All insurance required to be carried by
Tenant hereunder shall insure Tenant and shall name, as additional insureds,
Landlord and such other person or persons designated in writing by Landlord to
Tenant that have an insurable interest in the Premises, as their respective
interests may appear ("Landlord's Designee(s)"), and each policy shall contain a
provision that it cannot be canceled or amended, insofar as it relates to the
Premises, without at least fifteen (15) days prior notice to Landlord and
Landlord's Designee(s).
SECTION 15.5. PROOF OF INSURANCE. A certificate of all insurance procured by
Tenant in compliance with its obligations under this Lease shall be delivered to
Landlord prior to the time such insurance is first required to be carried by
Tenant, and thereafter at least ten (10) days prior to the expiration of any
such policy. Any insurance required to be provided by Tenant under Section 15.2
of this Article may be provided by blanket insurance covering both the Premises
and other properties or locations of Tenant if (i) such blanket insurance
complies with all of the other requirements of this Lease, and (ii) the amounts
payable to Landlord and/or Landlord's Designee(s) under such blanket insurance
shall at all times be not less than the face amount of such blanket insurance,
whether or not Tenant, as an insured, may be otherwise entitled to any proceeds
of the policy, and (iii) the insurance protection to be provided hereunder for
Landlord and Landlord's Designee(s) is not impaired or diminished by such
blanket insurance or inclusion of Tenant as an insured thereunder. If Tenant
shall provide blanket insurance in conformity with the foregoing, then the
requirements herein for delivery of insurance policies by Tenant shall be deemed
satisfied by Tenant's delivery of an underlying certificate(s) of such blanket
insurance (in form reasonably satisfactory to Landlord) with respect to the
insurance involved.
SECTION 15.6. INDEMNIFICATION. Tenant covenants and agrees to indemnify, defend
and save Landlord harmless from and against any and all injury, loss, claims,
actions, damages, liability, costs and expense including reasonable attorney's
fees resulting from loss of life, personal or bodily injury, damage to property,
or litigation arising from or out of any occurrence in, upon or at the Premises
or the occupancy or use by Tenant of the Premises, or occasioned anywhere,
wholly or in part, by any act, neglect, or omission of Tenant, its agents,
contractors, employees, servants, lessees or concessionaires. Tenant shall be
obligated to indemnify Landlord under this provision even if Landlord's
negligence contributes to the loss, unless Landlord's negligence is greater than
the combined negligence of Tenant, Tenant's sublessees and licensees, and that
of their respective contractors, agents and employees. All of Tenant's general
liability and property insurance policies shall contain a contractual liability
endorsement insuring the performance by Tenant of this Section 15.6 as to
liability for injury to or death of persons and injury or damage to property.
Landlord agrees to indemnify Tenant and save it harmless from and against any
and all claims, actions, damages, liability, and expense including reasonable
attorney's fees for which Tenant may be obligated to pay to an unrelated third
party in connection with any loss of life, personal injury, and/or damage to
property resulting from or arising out of the negligence or willful misconduct
of the Landlord on the Shopping Center in connection with its operation or
maintenance of the common areas (including the Common Areas on the Premises),
parking areas, roads, walks and approaches to the Shopping Center, except that
Landlord shall not be obligated to indemnify Tenant if either: (1) Landlord's
negligence arises out of its failure to supervise, discover, or remedy any
condition caused by Tenant, or Tenant's contractors, employees, servants or
agents, or for which Tenant is responsible under the Lease; or (ii) Landlord's
negligence arises out of its review of or consent to any work, construction or
modification of the premises by Tenant or its agents; or (iii) the loss
resulting from a claim of any employee of Tenant during the scope of his or her
employment, which claim is covered by workers' compensation.
SECTION 15.7. LANDLORD'S INSURANCE. Throughout the term of this Lease, Landlord
agrees to maintain in full force, at its own cost and expense, one or more
policies of comprehensive general public liability and property damage insurance
insuring against liability for death or injury to persons and/or damage to
property of any person or persons in or about the Common Areas. The limits of
liability of such insurance shall be not less than Two Million Dollars
($2,000,000.00) combined single limit for death, bodily injury and property
damage. Upon request of Tenant, Landlord shall promptly deliver to Tenant a
certificate(s) of insurance evidencing such liability and property damage
insurance. Landlord's minimum insurance obligation under this provision shall
increased by an amount corresponding with any increase in Tenant's liability
insurance under Section 15.2.
SECTION 15.8. WAIVER OF SUBROGATION. Landlord and Tenant each hereby release and
waive any and all rights of recovery from the other party and the officers,
employees, agents and representatives of the other party, for loss of or damages
which they may suffer to their person, business or property, or the property of
others under their control, arising from any cause insured under any policy of
insurance they may carry, to the extent such loss or damage is recoverable
thereunder (an "Insured Loss"), and without regard to the negligence of the
other party that may have contributed to the loss or damage. Tenant further
agrees to release all other parties occupying space in the Shopping Center under
Lease or operating agreement with Landlord, their officers, employees, agents
and representatives from any and all rights of recovery from such other parties
for any Insured Loss, provided that such party has a similar waiver waiving such
claims it may have against Tenant in its Lease or operating agreement. Under no
circumstances shall Landlord be obligated to obtain similar provisions in
agreements with other occupants of the Shopping Center or incur any liability
for the failure to procure or insure that other parties have similar provisions
in their leases or operating agreements with Landlord.
SECTION 15.9. WAIVER OF CLAIMS AGAINST LANDLORD. Landlord, its agents and
employees shall not be liable for, and Tenant waives all of claims for, loss or
damage to Tenant's business (including loss of revenue or additional labor and
expense) or damage to person or property sustained by Tenant or any person
claiming through Tenant resulting from any accident or occurrence directly or
primarily in or upon the Premises or the building of which it is a part, or any
other area of the Shopping Center, including, but not limited to, claims for
damage resulting from fire; any equipment, machinery or appurtenances becoming
out of repair; injury done or occasioned by wind; any defect in or failure of
plumbing, heating, ventilating or air conditioning equipment, electric wiring or
installation thereof, gas, water, and steam pipes, stairs, porches, railings or
walks; broken glass; the backing up, overflowing or leaking of any sewer pipe or
down spout; the bursting, leaking or running of any tank, tub, washstand, water
closet, waste pipe, drain or any other pipe or tank in, upon or about such
building or Premises; the escape of steam or hot water; water, snow or ice being
upon or coming through the roof, skylight, trapdoor, stairs, doorways, show
windows, walks or any other place upon or near such building or this Premises or
otherwise; the falling of any fixture, plaster, tile or stucco; and any act,
omission or negligence of other tenants, licensees or of any other persons in or
occupants of said building or of adjoining or contiguous buildings or of owners
or occupants of adjacent or contiguous property of the Shopping Center. To
the extent Tenant desires to be compensated for such claims, Tenant shall obtain
insurance to cover losses to its property and business.
ARTICLE 16. DAMAGE AND DESTRUCTION
SECTION 16.1. TENANT'S OBLIGATION. Except as otherwise provided in Section 16.2
of this Article, if the Improvements are damaged or destroyed by fire, windstorm
or other casualty during the term of this Lease (any such event herein a
"Casualty"), then Tenant shall promptly repair and restore the same, at its sole
cost and expense, to substantially the same or better condition as existed prior
to such Casualty. The Improvements shall be repaired and restored in conformity
with the Approved Plans, with only such changes as Landlord shall have approved
in writing. Such repair and restoration shall be in compliance with all
Governmental Requirements. Unless Tenant terminates this Lease pursuant to
Section 16.2, Tenant shall, during any period in which the Improvements are
damaged or destroyed by Casualty, pay to Landlord all fixed minimum rent,
Percentage Rent and other Additional Rents when due under this Lease. Percentage
Rent for any period for which Tenant is not fully open for business shall be
payable in an amount determined in accordance with Section 20.3.5, whether or
not Tenant's failure to remain fully open is excused under this Lease as a
result of the Casualty.
SECTION 16.2. RIGHT TO TERMINATE. Notwithstanding the provisions of Section 16.1
of this Article, (a) if the Improvements are totally destroyed by Casualty or
(b) if the Improvements are substantially damaged or destroyed during the last
five (5) years of the term of this Lease, then Tenant shall have the option to
either (i) repair and restore the Improvements in accordance with Section 16.1,
or (ii) terminate this lease by giving Landlord notice thereof within thirty
(30) days following such Casualty, in which latter event this Lease shall
terminate effective as of the date of such Casualty. If Tenant terminates this
Lease pursuant to the preceding sentence, Tenant shall demolish and raze the
remainder of the Improvements (except for any party wall and footings and
foundation supporting any party wall if there exists an adjacent building which
is not damaged or is to be restored), remove the rubble and debris, and properly
compact the soil. Tenant's obligations under the preceding sentence shall
survive any termination of this Lease pursuant to the provisions of this
Section. In such event, insurance proceeds relating to the damage and
destruction shall be applied first to reimburse Tenant for the reasonable cost
of removing the Improvements and restoration of the site, and the balance
distributed between Landlord and Tenant as follows: (i) Landlord shall receive
the balance of the insurance proceeds times a fraction, the numerator of which
is the number of months between the Commencement Date and the date of the
casualty, and the denominator of which is 240, plus the number of months plus
the number of months of any expired renewal term, plus the remaining number of
months in any unexpired renewal term for which Tenant exercised its option to
renew prior to the date of casualty; and (ii) Tenant will be paid the balance.
If this Lease is not terminated pursuant to the provisions of this Section, then
this Lease shall continue in full force and effect in accordance with all of the
provisions hereof. If this Lease is terminated as provided in this Article, then
Rent shall be paid up to the date of such termination and Landlord shall make a
proportionate refund to Tenant of any rent paid by Tenant to Landlord in advance
that shall not have been earned as of the effective date of termination.
ARTICLE 17. EMINENT DOMAIN
SECTION 17.1. TAKING OF ENTIRE PREMISES. If the entire Premises shall be taken
by any public or quasi-public authority under any statute or under the power of
eminent domain or by private sale to the condemning authority, or to its
designee, under the threat of eminent domain (herein a "Taking"), then this
lease shall automatically terminate as of the date Tenant is deprived of
possession of or access to the Premises or the date title thereto vests in the
condemning authority, or its designee, whichever date occurs first.
SECTION 17.2. PARTIAL TAKING. If there is a Taking of any part of the Premises
so that the Premises, or the remainder thereof, is no longer usable for the
purposes for which the Premises is hereby leased, and cannot be made reasonably
adequate for such purposes by such repairs or alterations as Tenant is obligated
to make pursuant to the provisions of this Article, as determined by Tenant in
its reasonable and bona fide judgment, or
if, as the result of a Taking, the Premises no longer has any access to public
streets or roads contiguous to the Premises, or, if, as the result of a Taking,
the available parking remaining thereafter is no longer adequate for the
operation of Tenant's business at the Premises, then Tenant shall have the right
to terminate this Lease on thirty (30) days notice to Landlord given within
ninety (90) days after the date of such Taking.
SECTION 17.3. TENANT'S RENTAL OBLIGATION. If this Lease shall terminate or be
terminated as provided in this Article, Rent shall be paid up to the earlier of
the date that title vests in the condemning authority (or its designee) or the
date Tenant is deprived of possession of or access to the Premises, and Landlord
shall make an equitable refund of any Rent paid by Tenant to Landlord in advance
that shall not have been earned as of such effective date of termination. In the
event of a Taking that does not result in the termination of this Lease, then
the Fixed Minimum Rent for the portion of the Premises remaining shall be
reduced in the proportion that the area of the Premises subject to the Taking
bears to the entire area of the Premises prior to such Taking. Tenant shall, at
its sole cost and expense, make all necessary repairs and/or alterations to the
Premises so as to constitute the portion of the Premises not subject to such
Taking a complete architectural unit.
SECTION 17.4. CONDEMNATION AWARD. An amount equal to the costs incurred by
Tenant for repairs and/or alterations to the Premises necessitated by such
Taking, and the value of Tenant's leasehold interest in the Premises for the
balance of the Lease term shall be paid to Tenant from any award or damages as
the result of a Taking, and the remainder of any such award for damages, after
reimbursement to Landlord and Tenant for their respective costs in prosecuting
their respective claims in such action, shall be divided between Landlord and
Tenant, as their respective interests may appear, in accordance with the
applicable laws of the State; provided, however, Tenant shall not have, and it
hereby waives, any claim against Landlord or against the condemning authority
(i) with respect to the value of the Land and (ii) for the value, if any, of the
rentals due for under the unexpired term of this Lease.
SECTION 17.5. CONDEMNATION OF LESS THAN A FEE. In the event of a condemnation of
a leasehold interest in all or a portion of the Premises without the
condemnation of the fee simple title also, this Lease shall not terminate and
such condemnation shall not excuse Tenant from full performance of all of its
covenants hereunder, but Tenant in such event shall be entitled to present or
pursue against the condemning authority its claim and to receive all
compensation or damages sustained by it by reason of such condemnation, and
Landlord's right to recover compensation or damages shall be limited to
compensation for and damages, if any, to its reversionary interest; it being
understood, however, that during such time as Tenant shall be out of possession
of the Premises by reason of such condemnation, this Lease shall not be subject
to forfeiture for failure to observe and perform those covenants not calling for
the payment of money. In the event the condemning authority shall fail to keep
the Premises in the state of repair required hereunder, or to perform any other
covenant not calling for the payment of money, Tenant shall have ninety days
after the restoration of possession to it within which to carry out its
obligations under such covenant or covenants. During such time as Tenant shall
be out of possession of the Premises by reason of such leasehold condemnation,
Tenant shall pay to Landlord, in lieu of the fixed minimum rent and percentage
rents provided for hereunder, and in addition to any other payments required of
Tenant hereunder, an annual rent equal to the average annual fixed minimum rent
and percentage rents paid by Tenant for the period from the commencement of the
term until the condemning authority shall take possession, or during the
preceding three full calendar years, whichever period is shorter. At any time
after such condemnation proceedings are commenced, Tenant agrees, upon request
of Landlord, to assign to Landlord all compensation and damages payable by the
condemnor to Tenant, to be held without liability for interest thereon as
security for the full performance of Tenant's covenants hereunder, such
compensation and damages received pursuant to said assignment to be applied
first to the payment of rents and all other sums from time to time payable by
Tenant pursuant to the terms of this Lease as such sums fall due, and the
remainder, if any, to be payable to Tenant at the end of the term hereof or on
restoration of possession to Tenant, whichever shall first occur, it being
understood and agreed that such assignment shall not relieve Tenant of any of
its obligations under this Lease with respect to such rents and other sums
except as the same shall be actually received by Landlord.
ARTICLE 18. ASSIGNMENT AND SUBLETTING
SECTION 18.1. LIMITATION ON RIGHT TO ASSIGNMENT. Except as otherwise provided in
this Article and Article 22 hereof, Tenant shall not voluntarily or by operation
of law or otherwise (i) assign or otherwise transfer this Lease or (ii)
hypothecate or mortgage or otherwise encumber its leasehold interest in this
lease or (iii) sublet the whole or any part of the Premises to any person
(individually, collectively and in the alternative herein sometimes a
"Transfer") without first obtaining in each instance Landlord's prior written
consent thereto, which consent shall not be unreasonably withheld by Landlord.
Tenant shall have the right, without Landlord's prior consent, to assign this
Lease or to sublet the entire Premises to a party that (i) shall have a net
worth immediately following any such Transfer at least equal to that of Tenant
as of the date of this lease; or (ii) is Tenant's parent organization; or (iii)
is a wholly-owned subsidiary of Tenant or Tenant's parent organization or (iv)
is a corporation of which Tenant or Tenant's parent organization owns in excess
of fifty percent (50%) of the outstanding capital stock; or (v) as a result of a
consolidation or merger with Tenant and/or Tenant's parent organization, shall
own all the capital stock of Tenant or Tenant's parent organization; provided
that any such transferee shall continue to operate the Premises as a restaurant
of the same kind and character as approved under this Lease (a "Related Party
Transfer"). In consideration of Landlord's agreement contained in this Section,
Tenant agrees to furnish Landlord, within ten (10) business days following
Landlord's request therefor, written evidence reasonably satisfactory to
Landlord that any such Transfer pursuant to the provisions of this Section is in
compliance with the conditions precedent set forth herein that make Landlord's
consent unnecessary with respect to any such Transfer pursuant to this Section.
SECTION 18.2. LANDLORD'S CONSENT. With respect to any proposed Transfer referred
to in Section 18.1 of this Article where Landlord has agreed pursuant to the
provisions of said Section that its consent shall not be unreasonably withheld,
Landlord, in exercising such right of consent, shall be entitled to take into
account any fact or factor which Landlord deems relevant to such decision,
including, but not limited to any or all of the following: (i) whether the
financial strength of the proposed assignee or sub-lessee (herein sometimes a
"Transferee"), including the adequacy of its working capital, is sufficient to
pay all expenses anticipated in connection with any remodeling and restocking of
the Premises; (ii) whether the proposed Transferee has successful experience in
the restaurant business; (iii) the quality and nature of the food and services
offered for sale by the proposed Transferee and any other services offered for
sale by the proposed Transferee in any other locations which it has, and the
quality and nature of the food and services which such Transferee proposes to
offer for sale in the Premises; (iv) diminution or potential diminution of
percentage rent payable pursuant to this Lease as the result of such Transfer;
(v) the quality of the appearance of the Improvements resulting from any
remodeling or renovation to be conducted by the proposed Transferee, and the
compatibility of such quality with that of other improvements in the portion of
the Shopping Center in which the Premises is located; (vi) whether the current
net worth of the proposed Transferee is less than the greater of Tenant's net
worth as of the date of this Lease or Tenant' s net worth at the date of
Tenant's request for Landlord's consent to such Transfer; (vii) whether the
proposed Transferee's use of the Premises conflicts with the Permitted Use;
(viii) whether the proposed Transfer would breach any covenant of Landlord with
respect to radius, location, use or exclusivity in any other Lease, financing
agreement or other agreement relating to the Shopping Center; and/or (ix)
whether the annual amount anticipated to be expended by the proposed Transferee
in advertising its business at the Shopping Center and/or whether the annual
amount customarily expended by the proposed Transferee in advertising its other
locations is less than the annual amount expended by Tenant in advertising its
business at the Shopping Center. In addition, Landlord shall be entitled to be
satisfied that each and every covenant, condition or obligation imposed upon
Tenant by this Lease and each and every right, remedy or benefit afforded
Landlord by this lease would not be impaired or diminished by such Transfer.
Tenant shall not have the right or power to request or enter into a Transfer (a)
with any occupant of the Shopping Center or any prospective tenant with whom
Landlord is contemporaneously negotiating for any premises within or adjacent to
the Shopping Center, or (b) when there exists any default by Tenant in the
performance or observance of any of the terms, covenants and conditions of this
Lease or if there exists any such event which, with the passage of time and/or
the giving of notice would constitute a default under this lease, or (c) unless
Tenant has furnished to Landlord all of the information and documentation
required and/or requested to be furnished to Landlord pursuant to the provisions
of Section 18.1 of this Article. Should Landlord fail to deny
consent under this provision within 20 days following receipt of all of the
information required under Section 18.3, plus any other reasonable information
Landlord requests within 10 days of Tenant's request for Landlord's approval to
a proposed assignment.
SECTION 18.3. INFORMATION TO LANDLORD. If Tenant desires to enter into a
Transfer pursuant to Section 18.1 of this Article (other than a Related Party
Transfer), then Tenant shall give Landlord reasonable prior written notice
thereof which notice shall include (i) the full particulars of the proposed
Transfer, including the terms, conditions and the proposed effective dates,
subleases, copies of any offers, draft agreements, letters of commitment or
intent, and any other documents pertaining to such proposed Transfer, (ii) a
description of the identity, net worth and previous retail business experience
of the proposed assignee or sublessee (herein sometimes, as the case may be, a
"Transferee"), including, without limitation, copies of the proposed
Transferee's most recent income, balance sheet and change of financial position
statements (with accompanying notes and disclosures of all material changes
thereto) in audited form (if available in audited form) and certified as
accurate by the proposed Transferee, and (iii) any further information relevant
to the proposed Transfer which Landlord may reasonably request with respect
thereto. If Tenant desires to enter into a Related Party Transfer, then Tenant
shall give Landlord reasonable prior written notice thereof which notice shall
include a description of the identity and net worth of the proposed Transferee,
including a copy of the proposed Transferee's most recent balance sheet in
audited form (if available in audited form) and certified as accurate by the
proposed Transferee, and any further information which Landlord may reasonably
request to evidence compliance with the conditions set forth in Section 18.1 of
this Article pertaining to the making of a Related Party Transfer without
Landlord's consent.
SECTION 18.4. CONSEQUENCES OF A TRANSFER; ASSUMPTION AGREEMENT. Except as
otherwise hereinafter provided in this Section, any Transfer shall not relieve
Tenant from any of Tenant's obligations under this Lease. No assignment of this
Lease by Tenant shall be effective unless the assignee shall, at the time of
such assignment or transfer, assume by written agreement delivered to Landlord
as hereinafter provided, all of the terms, covenants and conditions of this
Lease to be performed by Tenant and shall agree to be bound hereby. Tenant
agrees to deliver or cause to be delivered to Landlord such assumption agreement
executed by such assignee or transferee within fifteen (15) days following the
effective date of any such assignment.
SECTION 18.5. CHANGE OF OWNERSHIP. If Tenant is a corporation, partnership,
business trust, or other form of business association at any time during the
term of this Lease, and there exists any transfer by sale, assignment, bequest,
inheritance, operation of law or other disposition so as to result in the loss
of or a change in the voting control of Tenant by the person or persons owing a
majority of the voting control prior to such transfer, such change shall be
considered a Transfer of this Lease under Section 18.1, and any such Transfer
without the written consent of Landlord shall constitute an event of default
under this Lease. The provisions of this Section shall not apply to a
corporation whose entire outstanding voting stock is listed on a national
securities exchange or to a corporation if at least eighty (80) percent of the
entire outstanding voting stock is owned by another corporation whose entire
outstanding voting stock is listed on a national securities exchange. A
"national securities exchange", as referred to herein, shall have the same
meaning as defined in the Securities Exchange Act of 1934, as amended.
SECTION 18.6. FURTHER TRANSFERS. Notwithstanding any Transfer, the provisions
of this Article shall apply to all further Transfers.
SECTION 18.7. ASSIGNMENT OR TRANSFER BY LANDLORD. Landlord shall be entitled to
sell, mortgage, pledge, or otherwise transfer its interest in the Premises or in
this Lease without any restriction or limitation. In the event of the bona fide
sale or other transfer of Landlord's interest in the Premises, the Landlord
herein named (and in case of any subsequent transfers, the then grantor or
transferor) shall have no further liability and obligations of Landlord
hereunder, except any that may have accrued prior to the sale and transfer, and
for any prepaid Rent and the Security Deposit, if any, that is not transferred
or credited to such purchaser, assignee or transferee. In the event of a
sale-leaseback transaction of the Premises wherein Landlord sells the Premises
and simultaneously enters into a leaseback lease with the purchaser or its
designee, Landlord shall still be
deemed to be the Landlord hereunder, so long as this Leaseback lease is in full
force and effect or, if terminated, so long as Landlord is the fee owner of the
Premises.
ARTICLE 19. UTILITIES
Tenant shall pay or cause to be paid all charges for gas, fuel, electricity,
sewer, water, heat, power, and other utilities, telephone or other communication
service used by, rendered or supplied to, the Premises from and after the
Effective Date and thereafter through the Termination Date, and Tenant shall
indemnify and save Landlord harmless against any and all, expenses, liability
and damages on account of such charges. Except as otherwise required with
respect to Landlord's work, Tenant shall, at its sole cost and expense, procure
any and all necessary permits, licenses or other authorizations required for the
lawful and proper installation and maintenance upon the Premises of wires,
pipes, conduits, tubes, meters and other equipment and appliances for use in
supplying any such services and facilities to and upon the Premises.
ARTICLE 20. DEFAULT AND REMEDIES
SECTION 20.1. EVENTS OF DEFAULT. Any one or more of the following occurrences
shall constitute an event of default under this Lease by Tenant:
(a) The failure of the Tenant to pay any fixed minimum rent, percentage
rent, or additional rent of any kind or nature due hereunder within ten (10)
days after written notice to Tenant that such amounts are past due;
(b) The intentional falsification by the Tenant or an agent of the
Tenant of any report required to be furnished to the Landlord pursuant to the
terms of this Lease, or the repeated or intentional failure to document or
record sales made on or from the Premises;
(c) The bankruptcy or insolvency of the Tenant or any guarantor of this
Lease, or the filing of any debtor proceedings, including petition in bankruptcy
or insolvency or for reorganization or for the appointment of a receiver or
trustee of all or any portion of Tenants or any such guarantor's property, or
the making or assignment for the benefit of creditors, or the petitioning or
entering into an arrangement by the Tenant or any guarantor of this Lease;
(d) Unless and to the extent excused by Section 27.2, the failure of
Tenant to complete Tenant's Improvements required under Section 7.1.
(e) The vacation or abandonment by the Tenant of the Premises contrary
to the provisions of Section 8.2 for a period of sixty (60) days;
(f) The taking by any party of this Lease by writ of execution or
similar process;
(g) The failure of the Tenant to keep or perform any of the terms,
conditions, covenants or agreements of this Lease covenanted and agreed to be
observed or performed by Tenant, not otherwise specified as a default or event
of default, for more than 30 days after written notice of such default or
violation shall have been given to Tenant, provided that if the default be of
such a nature that it cannot be reasonably cured within said thirty day period,
and Tenant shall in good faith have promptly commenced the curing of such
default within such period, then Tenant shall be deemed not in default hereunder
if it shall diligently proceed to cure such default within a reasonable grace
period necessary to promptly cure the default. This provision shall not apply
defaults listed in subparts (a) through (f) of this Section.
SECTION 20.2. REMEDIES FOR DEFAULT. In the event of the occurrence of an event
of default, as defined in Section 20.1, in addition to all other rights and
remedies available to Landlord under this Lease or under law, Landlord shall
have the following remedies:
20.2.1. At any time following an event of default, Landlord may, at
Landlord's option, elect to terminate this Lease by written notice to Tenant
specifying Landlord's intention to terminate this Lease, which notice may, but
need not be, included in a notice of intention to evict or pleading in an
eviction action. Notice of termination shall be served in the manner specified
in Section 27.9, or any manner authorized for service of any pleading or notice
of intention to evict. Following service of the notice of termination, Tenant
shall have the right to reinstate this Lease by paying to Landlord all fixed
minimum rent, percentage rent, additional rentals, late charges and all other
fees and charges payable under this Lease and curing all other events of default
under this Lease, by no later than 11:59 p.m of the tenth business day following
either: i) personal delivery of notice of termination to Tenant's manager or
assistant manager; ii) service of the notice of termination on Tenant by
facsimile transmission; iii) the expiration of one full day after mailing of
notice of termination; or iv) such later day as specified by Landlord in the
notice of termination. For the purpose of this provision, a "business day" shall
be each Monday through Friday, inclusive, but shall not include any federally
recognized banking holiday for New Years, Christmas, Memorial Day, Independence
Day, Fourth of July or Thanksgiving. Landlord shall be under no obligation to
reinstate this Lease if Tenant fails to cure all events of default within the
time and in the manner required herein.
Unless Tenant reinstates this Lease in the time and in the manner provided
above, termination of this Lease will be effective, without further notice and
without the necessity of any legal suit or action, upon the expiration of the
period Tenant is allowed to reinstate this Lease. Delivery of Landlord's notice
of termination under this provision is intended to satisfy any common law
requirements relating to service of notice of default or demand for payment of
rents prior to terminating a lease, and no further notice to quit, vacate,
demand or legal process shall be necessary to terminate this Lease, whether or
not any additional notice may be required by law as a condition to obtaining an
order evicting Tenant from the Premises.
Following the effective time of termination, Tenant shall have no further
interest in the Premises or in this Lease, or any right to rents or profits
generated by Landlord from the Premises and, subject to Landlord's right to
recover damages under Subsection 20.3.2, Tenant shall not be liable to Landlord
for fixed minimum rent, percentage rent, or additional rents which first accrue
after the effective date of termination. Rents and other charges paid to
Landlord for the post-termination use or occupancy of all or any portion of the
Premises shall not reduce Tenant's obligations to pay all rents and other
charges which accrued prior to the effective date of termination. No attempt by
Tenant to cure defaults under this Lease following expiration of the time to
cure defaults shall be valid. Landlord's acceptance of rent following expiration
of the period of curing a default shall not, unless otherwise agreed by Landlord
in writing, constitute reinstatement of this Lease, and any post-termination
rental payments received or recovered by Landlord shall be applied by Landlord
to satisfy Tenant's obligations under this Lease, without affecting the
termination of this Lease.
20.2.2. At any time following an event of default, Landlord, shall, at
its option, have the immediate right to re-enter the Premises, with or without
legal process, and without terminating this Lease. Should Landlord elect to
re-enter, it may take such steps as it deems necessary to secure the Premises
and to exclude Tenant and its agents and employees therefrom; make such
alterations and repairs as may be necessary in order to relet the premises; and
relet the Premises or any part thereof, on behalf of Tenant, for such term or
terms (which may be for a term extending beyond the term of this Lease) and at
such rental and upon such other terms and conditions as Landlord, in its sole
discretion, may deem advisable. Notwithstanding re-entry by Landlord, and until
termination of this Lease, Tenant's obligations under this Lease shall remain in
full force and effect and, unless Landlord has agreed to lease or otherwise
convey all or any portion of the Premises, Tenant shall have the right to
reinstate this Lease and retake possession of the Premises by curing all events
of default and paying all late charges and legal fees due under this Lease. Any
rents collected by Landlord following re-entry shall be applied as provided in
subsection 20.3.3. To the extent that for any month after re-entry, but prior to
termination, Landlord receives net rents, as defined below, in excess of
Tenant's rental obligation for such month, the excess shall be held by Landlord
as security for Tenant's future obligations to Landlord under this Lease, and
upon satisfaction of those obligations, shall be applied to the reduction of
Tenant's past due obligations to Landlord.
In the event, notwithstanding this provision, any court were to impose on
Landlord the obligation to mitigate Tenant's damages subsequent to re-entry,
Landlord shall not be required to give preference to reletting the Premises over
any other vacancies in the Shopping Center, and Landlord may condition the
reletting of the Premises on, among other reasonable conditions, any one or more
of the following: i) the payment of a fair market rate of rent for the Premises,
whether or not that rate is in excess of the amounts reserved to Landlord under
this Lease; ii) the compliance by the prospective tenant with the use clause and
all other material covenants and agreements in this Lease (except those which
cannot legally be performed by anyone other than Tenant); iii) the making of
repairs and improvements to the Premises necessary to place it in first-class
condition; iv) acceptance of the Tenant by all mortgagee(s) with an interest in
the Premises; v) the provision of a security deposit or guaranty; or vi) the
satisfaction of all requirements Landlord could impose as a condition to
approving Tenant's assignment of this Lease to any other party under Sections
20.6 or Article 18 of this Lease. Re-entry by Landlord solely for the purpose of
securing the Premises and without any effort by Landlord to relet the Premises
after Tenant's abandonment or vacation of the Premises, shall not impose any
obligation on Landlord to mitigate damages.
SECTION 20.3. RECOVERY OF RENT AND DAMAGES. In addition to all other rights and
remedies of Landlord provided by law and under this Lease, following an event of
default, Landlord shall have the right to recover under this Lease from Tenant,
Tenant's successors and assigns, any guarantor of Tenant's obligations, and any
other party liable for Tenant's obligations under this Lease the following
amounts:
20.3.1. Fixed minimum rent, percentage rent, additional rents, and late
charges, legal fees, and all other charges owing by Tenant to Landlord under
this Lease prior to the effective date of termination or re-entry; plus,
20.3.2. Damages subsequent to termination of this Lease equal to the
excess of all fixed minimum rent, percentage rent (computed under subsection
20.3.5), and additional rents reserved under this Lease, reduced to present
value as of the effective date of termination, over the rental value of the
Premises from the effective date of termination to the end of the remaining term
of this lease, computed after deducting Landlord's costs of reletting the
Premises; plus,
20.3.3. For any period subsequent to re-entry but prior to termination
of this Lease, fixed minimum rent, percentage rent (computed under subsection
20.3.5), additional rents, late charges, legal fees and other charges reserved
under this Lease, as defined below, accrued as of the date of judgment, less the
rentals received by Landlord from the reletting of all or any portion of the
Premises, reduced by Landlord's costs of reletting the premises, including, but
not limited, to leasing commissions, brokerage fees, costs of repairs,
improvements or modifications made to the Premises, legal fees, and other costs
incurred by Landlord in reletting the Premises; plus,
20.3.4. All direct and foreseeable consequential damages, cost,
expense, or loss suffered by Landlord as a proximate result of the breach by
Tenant of any provision of this Lease for which Landlord is not fully
compensated under subsection 20.3.1.
20.3.5. For the purpose of determining the Tenant's obligation to pay
percentage rent following termination of this Lease, re-entry by Landlord,
damage or destruction to the Premises, or any failure of Tenant to remain
continuously open for business in the manner required by this Lease, percentage
rent shall be determined on the basis of Tenant's average gross sales from
either: i) the Rent Commencement Date to the date Tenant's gross sales were last
reported to Landlord prior to the date of termination, re-entry or failure to
open (the "Final Reporting Date"); ii) the three full calendar years preceding
the Final Reporting Date, whichever period is shorter. Present value of future
rents under subsection 20.3.2 shall be computed on the basis of an interest rate
of six percent (6%) per annum. Tenant's liability for additional rents
(exclusive of percentage rent) subsequent to termination of this Lease, shall be
determined by multiplying the monthly additional rent payable at the date of
termination, times the number of months remaining in this Lease term,
without any reduction for present value, it being agreed that inflationary
increases in such costs for future years fully negate the need for present value
reductions.
SECTION 20.4. INTEREST ON AMOUNTS OVERDUE. If any installment of fixed minimum
rent, percentage rent, or additional rents, or any other amounts due hereunder
from Tenant to Landlord shall not be received by Landlord within ten (10) days
after the amount is due, Tenant shall pay the Landlord interest on the unpaid
balance overdue at a rate equal to the maximum amount permitted to be charged by
the Landlord to the Tenant under North Dakota law, or one and one-half percent
(1 1/2%) per month on the overdue balance, whichever is less, plus any
attorney's fees and other costs of collection as provided in this Lease. The
charging or acceptance of such interest by Landlord shall in no event constitute
a waiver of Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of its other rights and remedies granted hereunder.
SECTION 20.5. LEGAL EXPENSE. If any case, suit or proceeding shall be brought by
Landlord for recovery of possession of the Premises, or recovery of any rents or
any other amount due under this Lease, or otherwise as the result of the breach
by Tenant of any other obligation under this Lease, and if such a breach shall
be established, Tenant shall be required to pay to Landlord all expenses
incurred as a result thereof, including reasonable attorney's fees. Tenant shall
have a right to collect such fees and expenses from Landlord in case of an
established breach of a written covenant required on the part of Landlord to be
performed hereunder following the written notice to Landlord of such breach, and
not resulting from a good faith dispute as to the terms of this Lease or
Landlord's duties hereunder.
SECTION 20.6. BANKRUPTCY OF TENANT. It is understood and agreed that this is a
Lease of real property in a Shopping Center as such a Lease is described in
Section 365(b)(3) of the Bankruptcy Code, or corresponding future provision.
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: (a) to perform each and every obligation of Tenant
under this Lease until such time as this Lease is either rejected or assumed by
order of the United States Bankruptcy Court; and (b) to pay monthly in advance
on the first day of each month as reasonable compensation for use and occupancy
of the Premises an amount equal to all fixed minimum rent, additional rent and
other charges otherwise due pursuant to this lease and to pay percentage rent
monthly at the percentage set forth in this Lease on all sales during such
month, less minimum rent actually paid in such month; payment of all such
percentage rent to be made by the 15th of the succeeding month; and (c) to
reject or assume this Lease within sixty (60) days of the filing of such
petition under Chapter 7 of the Bankruptcy Code or within one hundred twenty
(120) 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; and (d) to give Landlord at least forty-five
(45) days prior written notice of any proceeding relating to any assumption of
this Lease; and (e) to give Landlord at least thirty (30) days prior written
notice of any abandonment of the Premises; any such abandonment to be deemed a
rejection of this Lease; and (f) to do all other things of benefit to Landlord
otherwise required under the Bankruptcy Code; and (g) to be deemed to have
rejected this Lease in the event of the failure to comply with any of the above;
and (h) to have consented to the entry of an order by an appropriate United
States Bankruptcy Court providing all of the above.
No default of this Lease by Tenant, either prior to or subsequent to the filing
of such petition, shall be deemed to have been waived unless expressly done so
in writing by Landlord. Included within and in addition to any other conditions
or obligations imposed upon Tenant or its successor in the event of assumption
and/or assignment are the following: (1) the cure of any monetary defaults and
the reimbursement of pecuniary loss within not more than thirty (30) days of
assumption and/or assignment; and (2) the deposit of an additional sum equal to
three (3) months' rent to be held as a security deposit under the terms of this
Lease; and (3) the use of the Premises as set forth in Article 8 and all other
sections of this Lease; (4) that the quality, quantity and/or lines of food,
beverages and services required to be offered for sale shall be unchanged; and
(5) the reorganized debtor or assignee of such debtor in possession or of
Tenant's trustee demonstrates in writing that it has sufficient background,
including, but not limited to, substantial restaurant and beverage experience
and the financial ability to operate a restaurant establishment out of the
Premises in the manner contemplated in
this Lease and meet all other reasonable criteria of Landlord as did Tenant upon
execution of this Lease; and (6) the prior written consent of any mortgagee to
which this Lease has been assigned as collateral security; and (7) no physical
changes of any kind may be made to the Premises unless in compliance with the
applicable provision of this Lease.
SECTION 20.7. WAIVER OF DEFAULT. The waiver by Landlord of the breach of any of
any term, covenant or condition herein contained, or the doing of any matter or
payment of any sum by Landlord not required of Landlord by the terms hereof
shall not be deemed to be a waiver or amendment of that term, covenant or
condition or of any subsequent breach of the same or any other term, covenant or
condition herein. The subsequent acceptance of rent hereunder by Landlord shall
not be deemed to be a waiver of any existing or 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 or existing breach at the time of acceptance of such rent. No
covenant, term or condition of this Lease shall be deemed to have been waived by
Landlord, unless such waiver be in writing signed by Landlord.
SECTION 20.8. OPTION TO CURE DEFAULT. Landlord may, at its option, elect to cure
at any time, without notice, (except as otherwise provided), any default by
Tenant under this Lease; and whenever Landlord so elects, and if not otherwise
expressly provided for in this Lease, all costs and expenses incurred by
Landlord in curing a default, including, without limitation, reasonable
attorney's fees, together with interest on the amount of costs and expenses so
incurred at the rate of eighteen per cent (18%) per annum or the highest legal
rate provided by law to be charged to Tenant, whichever is lower, shall be paid
by Tenant to Landlord on demand, and shall be recoverable as additional rent.
SECTION 20.9. ACCORD AND SATISFACTION. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment as rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this Lease provided.
SECTION 20.10. REMEDIES CUMULATIVE. All remedies provided by Landlord under this
Lease are intended to be cumulative, and any one or more may be exercised by
Landlord, at its option. The exercise by Landlord of any remedy reserved to
Landlord under this Lease or provided by law is not intended to be exclusive of
any other available remedy or remedies, but each and every such remedy shall be
in addition to every other remedy now or hereafter existing at law, in equity or
by statute.
ARTICLE 21. SURRENDER OF PREMISES
SECTION 21.1. TENANT'S OBLIGATIONS. At the expiration of Tenant's right to
possession of the Premises, whether by expiration of the term of this Lease,
abandonment of the Premises by Tenant, or as a consequence of the occurrence of
an event of default, Tenant shall surrender to Landlord the Premises, including
all Improvements, in good condition and order, ordinary wear and tear and damage
by unavoidable casualty excepted, and shall return all keys for the Premises to
Landlord and shall inform Landlord of all combinations on locks, safes and
vaults, if any, in the Premises. Tenant shall, at its expense, remove all its
trade fixtures, furniture, and signs before surrendering the Premises and shall
repair any damage to the Premises caused thereby. The provisions of this Article
shall survive the expiration or termination of this lease.
SECTION 21.2. DAMAGES FOR FAILURE TO SURRENDER PREMISES. In the event that
Tenant fails to surrender the Premises to Landlord at the time and in the manner
required by Section 21.1, Tenant shall pay Landlord the amount of rents due
under this Lease, or the rental value of the Premises for such period, whichever
is greater, plus Landlord's damages suffered as a consequence of the breach,
including, without limitation, loss of rents and any amounts paid as the result
of the entry of a judgment or settlement of any claim asserted against Landlord
caused by Tenant's breach of this Article 21. Any party to whom Landlord may
lease, license or otherwise convey the Premises following termination of this
Lease, is an intended beneficiary of Section 21.1
and shall be entitled to bring a direct action against Tenant to recover any
damages it may suffer as a consequence of Tenant's breach of this Article 21.
SECTION 21.3. HOLDING OVER. Any holding over after the expiration of the term of
this Lease, without the consent of the Landlord shall, unless otherwise agreed
by the parties in writing, be construed to be a tenancy from month to month at
the rents herein specified (prorated on a monthly basis) and shall otherwise be
on the terms and conditions herein specified, so far as applicable.
ARTICLE 22. LEASEHOLD MORTGAGE
SECTION 22.1. TENANT'S RIGHT TO MORTGAGE LEASEHOLD. Tenant shall have the right,
without Landlord's consent, to grant a mortgage, a deed of trust or other
security interest in its leasehold interests under this Lease (herein
individually, collectively or in the alternative a "Leasehold Mortgage") to a
lender (herein a "Leasehold Mortgagee"), provided that at the time of making any
such Leasehold Mortgage, Tenant is not then in default of its obligations under
this Lease. Notwithstanding anything contained herein, it is understood and
agreed that any such Leasehold Mortgage given by Tenant shall not become a lien
or extend to or affect the estate or interest of Landlord in and to the Premises
or any part thereof. A Leasehold Mortgage shall not be binding upon Landlord in
the enforcement of Landlord's rights and remedies under this Lease and as
provided by law, and, except as otherwise agreed by Landlord with any proposed
Leasehold Mortgagee, Landlord shall not be deemed to have any notice thereof and
none of the obligations imposed on Landlord under Section 22.2 shall apply
unless and until a true copy of the original of each instrument creating and
affecting such Leasehold Mortgage, and written notice containing the name and
mailing address of the Leasehold Mortgagee, shall have been delivered to
Landlord, notwithstanding any other form of notice, actual or constructive,
which may occur or be claimed to have occurred, and unless the Leasehold
Mortgage or other written agreement to which the Leasehold Mortgagee is a party
shall contain, or be subject to, substantially the following provision for the
benefit of Landlord:
"The Leasehold Mortgagee waives all right and option to retain and
apply the proceeds of any insurance or the proceeds of any condemnation
award toward payment of the sum secured by the Leasehold Mortgage to
the extent such proceeds are payable to the Landlord or are required to
be used for the repair or restoration of the premises in accordance
with the provisions of the Lease on which the Leasehold Mortgage is a
lien."
SECTION 22.2. COVENANTS FOR BENEFIT OF LEASEHOLD MORTGAGEE. If the provisions of
Section 22.1 of this Article shall have been complied with, then so long as such
Leasehold Mortgage shall remain in effect, the following shall apply:
(a) There shall be no agreement for the cancellation or surrender of
this lease without the prior consent in writing of the Leasehold
Mortgagee but this subparagraph shall not prohibit Landlord from
terminating this lease as herein provided as the result of a default by
Tenant of any of its obligations under this Lease which is not cured
within the applicable notice and grace period.
(b) Landlord shall, upon mailing Tenant any notice of default or notice
of termination pursuant to the provisions of this Lease, mail a copy of
such notice to the Leasehold Mortgagee at the address last furnished to
Landlord, and such Leasehold Mortgagee shall thereupon have the right
to cure such default, if susceptible of being cured, within the time
permitted to Tenant under this Lease to cure such default, and if so
cured, same shall be effective to prevent a forfeiture of Tenant's
rights hereunder as if such default had been cured by Tenant; provided
that if any non-monetary default is capable of being cured, but due to
the nature of the non-monetary default, such cure cannot be
accomplished with due diligence within the applicable period elsewhere
provided in this Lease, the Leasehold Mortgagee shall have such
additional time to cure such non-monetary default as may be reasonably
necessary to effect a cure thereof with due diligence. Notwithstanding
the foregoing provisions of this Section, the Leasehold Mortgagee shall
not be liable to Landlord as an assignee of
this Lease unless and until such Leasehold Mortgagee shall acquire the
rights of Tenant hereunder through foreclosure or other appropriate
proceedings in the nature thereof, or if such holder enters into a new
Lease with Landlord as hereinafter provided in this Article, or as a
result of any other action or remedy provided for by such Leasehold
mortgage or which may otherwise be provided by law.
SECTION 22.3. TERMINATION OF LEASE. In the event that any default by the Tenant
in the performance or observance of the terms, covenants or conditions of this
Lease is not susceptible of cure, Landlord agrees that if it terminates this
Lease by reason of any such default, it will enter into a new lease of the
Premises with the Leasehold Mortgagee or its nominee for the balance of the term
of this Lease remaining as of the date of termination, effective as of the date
of such termination, at the same Rent and upon all the same terms, covenants and
conditions herein contained, subject only to the rights, if any, of any parties
then in possession of the Premises, provided (i) that the Leasehold Mortgagee
shall make written request upon Landlord for such new lease within twenty (20)
days after the date of such termination, and such written request is accompanied
by payment to Landlord of all sums then due to Landlord under this Lease; (ii)
that the Leasehold Mortgagee or its nominee shall pay to the Landlord at the
time of its execution of such new lease any and all sums which would, at the
time of execution, be due pursuant to this Lease but for its termination; (iii)
that the Leasehold Mortgagee or its nominee shall further remedy the conditions,
if any, which the Tenant under this Lease was obligated to perform (or shall
promptly commence such remedy and diligently prosecute same to completion); (iv)
that Landlord shall not warrant possession of the Premises to the Leasehold
Mortgagee or its nominee; (v) that any such new lease shall contain
substantially the same provisions of this Lease; and (vi) that the tenant under
such new lease shall have the same right, title and interest in and to the
Improvements as Tenant had under this Lease. Notwithstanding anything to the
contrary contained herein, in the event the Leasehold Mortgagee or its nominee
enters into a new lease with Landlord in accordance with the foregoing
provisions of this Section, the Leasehold Mortgagee or its nominee shall have
the right to assign all of its interests in this Lease, subject to Landlord's
prior consent which shall not be unreasonably withheld or delayed if such
assignee has a positive net worth as of the date of such assignment and for the
six (6) month period immediately prior to such assignment at least equal to that
of Tenant as of the date of this Lease. Notwithstanding any such consent by
Landlord, any such assignment shall not be effective until receipt by Landlord
of an executed assumption agreement from such assignee in accordance with the
provisions of Section 18.4 hereof. Upon Landlord's receipt of such assumption
agreement, the Leasehold Mortgagee (or its nominee) shall be released and
relieved of all obligations on the part of the tenant under such lease accruing
from and after the effective date of such assignment. Further notwithstanding
any assignment of this Lease pursuant to this Section, the provisions of Article
18 shall apply to all further assignments and/or subletting.
ARTICLE 23. ACCESS TO PREMISES
SECTION 23.1. POSTING NOTICES. Provided Landlord gives Tenant or Tenant's
manager at the Premises reasonable prior notice thereof, Tenant shall permit
Landlord and the authorized representatives of Landlord to enter the Premises at
all reasonable times (which times shall be selected to minimize interference
with Tenant's business) for the purpose of serving or posting or keeping posted
thereon any notices required by federal and State laws and for such other lawful
purpose which Landlord may deem reasonably necessary or appropriate for the
protection of Landlord or its interest in the Premises and/or for the purpose of
inspecting the Premises.
SECTION 23.2. PROSPECTIVE PURCHASERS. Landlord shall have and is hereby given
the right to enter the Premises at reasonable times for the purpose of
exhibiting the same to prospective purchasers or mortgagees, provided that
Landlord gives Tenant or Tenant's manager at the Premises reasonable prior
notice before any such entry and further provided that any such entry will occur
at times that shall be selected to minimize interference with Tenant's business.
SECTION 23.3. LANDLORD'S ACCESS TO COMMON AREAS ON THE LAND. Landlord shall be
authorized to install, maintain, repair and replace utility facilities, such as
water, gas, electric and telephone lines and underground storm and sanitary
sewers in the Common Areas on the Premises. Construction of any such utility
facilities shall be undertaken at the sole cost and expense of Landlord, and at
such times and in a manner so as to
minimize any loss of access to the building on the Premises. Any damage occasion
to the Premises by reason of the installation, maintenance, repair, or
replacement of such utilities on the Land shall be repaired by Landlord. Nothing
contained in this provision shall require Landlord to construct, modify, or
repair any utilities servicing the Premises.
ARTICLE 24. COMMON AREAS
SECTION 24.1. ACCESS TO COMMON AREAS. Tenant and Tenant's agents, employees,
patrons and invitees shall have the right, in common with other tenants of the
Shopping Center and occupants of adjacent land subject to cross-easements and
operating agreements, to use the Common Areas, as Landlord shall, from time to
time, deem appropriate for the Shopping Center and in accordance with their
intended purposes. Except for those portions of the Common Areas located on the
Premises, Landlord shall have the right, at any time and from time to time, to
change the size and/or location and/or elevation and/or nature of the Common
Areas, or any part thereof, including, without limitation, the right change the
boundaries or sell Common Areas, to construct buildings and/or other structures
on Common Areas, and once each calendar year, to erect barriers, for the purpose
of blocking off access to the Common Areas in order to avoid the possibility of
dedicating the same for public use or creating prescriptive rights therein,
provided that the same (i) shall not materially and adversely affect access to
and visibility of the Premises and (ii) shall not materially reduce the parking
available on or immediately adjacent to the Premises.
SECTION 24.2. COMMON AREAS ON THE PREMISES. The Common Areas on the Premises, as
defined in Section 1.9, shall be included as part of the Common Areas of the
Shopping Center and Landlord, its respective tenants, subtenants, contractors,
subcontractors, concessionaires, licensees, invitees, and the respective
officers, employees, agents, and customers of each, shall have the non-exclusive
right, privilege, and easement to use the Common Areas on the Premises,
including all parking areas, sidewalks, walkways and landscaped areas within
said Common Areas on the Premises, in common with Tenant, its agents, employees
and invitees. At all times during the term of this Lease, free access between
the Premises and the Shopping Center at the locations provided on the Approved
Plans, shall not be impeded and will be maintained. Tenant shall make no
alteration or change in the Common Areas on the Premises without Landlord's
consent.
Landlord reserves the right, during the term of the Lease, to (i) install,
replace, maintain, and use utility lines, conduits, and facilities (including
without limitation, storm sewer, sanitary sewer, water, gas, electric,
telephone, cable, and other telecommunications lines); (ii) place a Shopping
Center sign at the location specified in Exhibit 2; and (iii) redesign and
re-landscape the green space included in the Common Areas on the Premises.
(together items (i), (ii) and (iii) the "Permitted Facilities"), and to grant to
third parties the non-exclusive right, easement, and license to install,
replace, maintain and use Permitted Facilities, on, under or across any portion
of the Shopping Center outside the Premises, and within the Common Areas on the
Premises, and the water feature on the Premises, together with a right of
ingress and egress and other rights appurtenant thereto. Landlord shall not
permit Permitted Facility located on the Premises to interfere with the access
or visibility to building on the Premises; or affect the use or function of any
of the Common Areas on the Premises or result in any additional expense to
Tenant. Further, Landlord shall cause all work relating thereto to be done in a
time and a manner which will not minimize interference with the business of
Tenant. Cost of construction and maintenance of any of the foregoing shall be
without expense to Tenant. Tenant shall, within 15 days after request by
Landlord, which request shall set forth in reasonable detail, the reason why
such easement is required by Landlord, execute, acknowledge, and deliver to
Landlord such instruments as may be required to grant such easements and
otherwise give effect to this provision, provided Tenant shall have the right to
exercise reasonable discretion as the location of such easements so as to
minimize interference with the operation of the Premises. Tenant may impose
reasonable requirements regarding location and screening of Permitted
Facilities.
SECTION 24.3. COMMON AREA RULES AND REGULATIONS. With respect to Tenant's use of
the Common Areas, including the Common Areas located on the Premises, Tenant
agrees at all times during the term of this Lease, at its sole cost and expense,
to comply with and cause its employees, contractors and invitees to comply with:
24.3.1. Uniform and non-discriminatory rules and regulations
established by Landlord, from time to time, in the Shopping Center
relating to the storage, removal and disposal of rubbish and trash, and
Tenant shall confine its rubbish in containers located upon the
Premises so as not to be visible to the public except for containers
Tenant shall make available for customer use, but nothing contained
herein shall prohibit Tenant from utilizing a sanitation contractor of
Tenant's choice for the mashing, removal and disposal of rubbish and
trash from the Premises; and
24.3.2. All reasonable rules and regulations established now or
hereafter by Landlord from time to time during the term of this Lease
for the preservation and promotion of safety, health, property and the
maintenance of good order within the Shopping Center, so long as the
same are not discriminatory with respect to Tenant, but Landlord shall,
except in case of emergency, give Tenant at least fifteen (15) days
prior notice of the establishment of any new rules and regulations or
modifications of any rules and regulations. Tenant shall pay all
reasonable fines and comply with all reasonably penalties which may be
imposed by Landlord for violations of the rules and regulations tenants
and\or adjacent areas of the Shopping Center.
24.3.3. Regulations restricting Tenants officer and employees from
parking their respective automobiles, trucks and other vehicles only in
such parking places in the Common Areas, (except for Common Areas
located on the Premises) as may be designated by Landlord from time to
time as the employee parking area. Upon request of Landlord, Tenant
agrees to furnish Landlord with the motor vehicle license numbers
assigned to the vehicles of Tenant and Concessionaire, subtenants and
their respective officers, agents and employees and licensees.
SECTION 24.4. MAINTENANCE OF COMMON AREAS. Except as provided in Section 12.1,
all Common Areas, including the Common Areas located on the Premises, whether or
not constructed by Tenant, shall be maintained by Landlord throughout the term
of this Lease in good repair, order and condition, and in a clean and orderly
condition, free of dirt, rubbish and unlawful obstructions, and Landlord shall
make all necessary repairs thereto and replacements thereof. Landlord shall have
the right to delegate, in whole or in part, the performance of any of Landlord's
rights and/or obligations under this Article to any other party as Landlord may
from time to time determine and to do and perform such acts in, to and with
respect to, the Common Areas as Landlord shall reasonably determine to be
necessary or appropriate for the management, maintenance, and operation of the
Shopping Center. Nothing contained in this section shall be construed to require
Landlord to repair any utility or service lines servicing the Premises even
though they are located in the Common Area located on the Premises, which lines
are to be maintained solely by Tenant at its expense. In the event Tenant is
required to excavate any portion of the Common Areas on the Premises to repair
or replace such service lines, it agrees that all such construction shall
proceed so as to minimize loss of parking and inconvenience to patrons of the
Shopping Center and to make all necessary repairs to the Common Areas caused by
such construction.
SECTION 24.5. COMMON AREA COST DEFINED. As used herein, "Common Area Costs"
means all costs and expenses of every kind and nature as may be paid or incurred
by Landlord in operating, managing, equipping, lighting, repairing, replacing,
cleaning and maintaining the Common Areas and facilities specifically including,
without limitation, gardening and landscaping, the cost of all Landlord's
insurance for Common Areas, including property and liability insurance, with all
endorsements, and any other insurance carried by Landlord for the Common Areas,
personal property and real estate taxes and assessments on the Common Areas,
including the cost of negotiating or contesting such taxes, as well as taxes in
lieu thereof, costs of acquisition and maintenance of Common Area furnishings,
general maintenance and repairs of Common Areas, costs of signs, resurfacing,
repair and replacement of paving curbs, walkways, parking lots, sidewalks,
striping parking lot, lighting, pest control, water and sewage, utilities,
sanitary control, drainage, removal of snow, surface water, ice, and refuse;
reasonable rental value of warehouse and storage facilities for equipment
serving Common Areas, cleaning, operation of loud speakers, modifications in
common areas required by law or for the health and safety of occupants of the
Shopping Center, depreciation on machinery and equipment used in such
maintenance, repair or replacement of on-site water lines, irrigation system,
sanitary sewer lines
and storm water lines serving the Common Areas property, the cost of personnel
to implement such services, in directing parking, policing the Shopping Center;
costs of any independent audit by a certified public accountant of common area
charges, traffic consultants, telephonic alert system, inspecting, fidelity
bonds for personnel, fees for permits, and administrative costs equal to fifteen
percent (15%) of the total costs and expense paid or incurred by Landlord under
this section, but there shall be excluded costs of depreciation of the original
cost of constructing the Common Areas. Landlord shall be authorized to amortize
the costs of repairs, replacements and improvements made to Common Areas, with
interest at a rate not to exceed 3% more than the prime rate reported by the
Wall Street Journal at any time within two months of the completion of the
repair, replacement or improvement, over the useful life of the repair,
replacement or improvement, or such shorter time as may be selected by Landlord.
Notwithstanding anything contained herein to the contrary, Common Area Costs
shall not include i) depreciation and amortization of the original Shopping
Center improvements; ii) costs and expenses incurred in connection with leasing
space in the Shopping Center, including real estate brokerage commissions; iii)
legal fees incurred in leasing or in disputes with tenants or related to
acquisition, development, financing, improvement of or leasing the Shopping
Center; iv) costs of construction allowances provided to other tenants; v)
financing or refinancing costs, or interest or principal payments on any
mortgage or deed of trust or any ground lease payments; vi) any cost of
expenditure for which Landlord is fully reimbursed by other tenants (other than
tax contributions or common area costs contributions); vii) to the extent
previously included in any common area charge assessed to Tenant, the net
proceeds allocable to the common areas or equipment used in connection with the
common areas, recovered by Landlord under either a policy of insurance or
contract or warranty claim; viii) charitable contributions; ix) overhead and
profit paid to subsidiaries or affiliates of Landlord for management services or
materials, but only to the extent that the costs of such items exceeds a
reasonable charge for materials or services of similar quality, availability and
reliability; (x) management fees and accounting costs are to be reimbursed by
the percentage fee set forth below, and shall not be separately assessed.; (xi)
advertising and promotional fees except as provided for in Article 25 of this
Lease; Landlord shall not be permitted to recover more than the actual
out-of-pocket cost paid by Landlord for common area costs, plus an
administrative surcharge of fifteen percent (15%). Landlord agrees that there
shall be no duplications of any common area costs.
SECTION 24.6. APPORTIONMENT OF COMMON AREA COST. Tenant shall pay to Landlord as
additional rent, in addition to the minimum, percentage, and all other rents
specified in this Lease, "Tenant's Share" of the Common Area Costs defined in
Section 24.5. "Tenant's Share" shall be determined by taking the total of all
Common Area Costs reduced by the contribution to Common Area Costs, if any, made
by stores or other occupants of: i) buildings with an area greater than 50,000
square feet; ii) buildings on land subject to a reciprocal easement and
operating agreement with Landlord; or iii) free-standing structures constructed
at a tenant's expense on land ground leased from Landlord; (hereinafter
collectively referred to as the "Major Stores"), multiplied by a fraction, the
numerator of which is the floor area of Tenant's building on the Premises and
the denominator of which is the average square foot interior leasable floor area
of the entire Shopping Center for the applicable period, exclusive of the area
of the Major Stores. Landlord represents and other freestanding Tenants
occupying pad sites in the Shopping Center not attached to the Shopping Center
mall and which have Landlord maintain the common areas adjacent to their
premises, currently pay common area costs in a manner substantially similar to
that provided in this Lease.
SECTION 24.7. PAYMENT OF COMMON AREA CHARGES. Common area charges shall be paid
by Tenant in monthly installments on the first day of each month, in advance, in
an amount estimated by Landlord. From time to time, but no less often than once
each Lease Year, Landlord shall furnish Tenant a statement in reasonable detail
of the actual common area operating costs and expenses paid or incurred by
Landlord during such period, prepared in accordance with sound accounting
principles. Tenant shall pay within 15 days after billing the deficiency, if
any, between Tenant's actual pro rata share of common area costs and the amounts
paid by Tenant, and in the event of any overpayment by Tenant, Landlord shall
credit the overpayment to Tenant's future rental obligations under this Lease to
the end that Landlord shall receive the entire amount of Tenant's pro rata share
of such costs and expenses for such period and no more.
Landlord's books and records compiled with respect to Landlord's common area
expenses shall be subject to audit on 10 days notice by Tenant, provided that no
such audit shall occur during the months of January through April and no more
than one audit shall be allowed for any calendar year. Landlord agrees to
cooperate with any such audit and shall maintain complete books and records in
accordance with generally accepted accounting principles, consistently applied
for the same period as required for federal income tax reporting purposes. Such
audit(s) shall take place within three (3) years after such charges are due in
accordance with the terms hereof. If it shall be determined as a result of such
audit(s) that Tenant has overpaid any of such charges, Landlord shall promptly
refund to Tenant the amount of such overpayment. Landlord agrees to provide
Tenant with copies of documentation and calculations relating the common area
charges assessed to Tenant, provided that Tenant pays a reasonable copying
charge for the same. Such information shall be retained in confidence by Tenant.
ARTICLE 25. MERCHANTS ASSOCIATION
Tenant agrees, for the express benefit of Landlord and the West Acres Shopping
Center Merchants Association, Inc., (or successor) a nonprofit corporation, to
join and maintain active membership and good standing in said Association all
during this Lease term, to pay all fees, dues and assessments as may be
established from time to time in accordance with its rules, regulations and
bylaws, to comply with the provisions thereof and to cooperate in all the
activities of the Association. Each Tenant member of the Association shall have
one vote and Landlord shall also have one vote in the operation of the
Association. Tenant agrees to pay, in quarterly installments during the full
term of this Lease, annual dues to the Association, as they may be determined in
accordance with Association bylaws. Nothing in the bylaws or regulations of the
Association shall be in conflict with the provisions of this Lease, including
any reasonable rules and regulations promulgated by Landlord pursuant to
provisions of this Lease, or in any way shall affect the Landlord's rights.
ARTICLE 26. PROTECTION OF LENDERS
SECTION 26.1. ESTOPPEL CERTIFICATE. Landlord and Tenant each agrees that it
will, at any time and from time to time, within twenty (20) business days
following written notice by the other party hereto specifying that it is given
pursuant to this provision, execute, acknowledge and deliver to the party who
gave such notice a statement in writing certifying that this Lease is unmodified
and in full force and effect (or if there have been modifications, that the same
is in full force and effect as modified, and stating the modifications), and the
dates to which the rent and any other payments due hereunder from Tenant have
been paid in advance, if any, and stating whether or not, to the best of
knowledge of the signer of such certificate, the other party is in default in
performance of any covenant, agreement or condition contained in this lease,
and, if so, specifying each such default of which the signer may have knowledge.
The failure of either party to execute, acknowledge and deliver to the other a
statement in accordance with the foregoing provisions within the twenty (20) day
period shall constitute an acknowledgment by the party given such notice, which
may be relied on by any person holding or proposing to acquire an interest in
the Shopping Center or the Premises or this Lease from or through the other
party, that this Lease is unmodified and in full force and effect and that the
rent has been duly and fully paid to and including the respective due dates
immediately preceding the date of such notice and shall constitute, as to any
person entitled as aforesaid to rely upon such statements, a waiver of any
default which may exist prior to the date of such notice.
The Landlord also agrees to provide such an estoppel certificate as above
described directly to Tenant's first mortgagee upon written request by such
mortgagee. Such request shall not be made more than once a year and Landlord
shall have ten (10) business days following the written request to submit such
certificate.
SECTION 26.2. ATTORNMENT. Tenant shall, in the event any proceedings are brought
for the foreclosure of, or in the event of exercise of power of sale under, any
mortgage or deed of trust made by Landlord covering the
Premises, attorn in writing to the mortgagee or purchaser at such foreclosure
sale and recognize such purchaser as Landlord under this Lease.
SECTION 26.3. SUBORDINATION. Upon request of Landlord, Tenant will execute an
agreement evidencing that this Lease and Tenant's rights thereunder are
subordinate to the lien of any mortgage, trust deed, or other instrument
resulting from any other method of financing or refinancing, now or hereafter in
force against the all or any portion of the Premises, and to all advances made
or hereafter to be made upon the security thereof, provided, however, that such
mortgagee will agree that, in the event any action is taken to foreclose the
lien of the mortgage, this Lease and all rights of the Tenant and its mortgagees
under its terms to use and quiet possession of the Premises, including, but not
limited to, easements, appurtenances and common areas and facilities in the
Shopping Center, shall not be disturbed and shall continue in full force and
effect so long as Tenant shall faithfully discharge each and every obligation on
its part to be kept and performed under the terms of this Lease.
ARTICLE 27. OTHER PROVISIONS
SECTION 27.1. ADDITIONAL RENTS. In addition to fixed minimum, percentage, common
area, insurance and tax rent, Tenant agrees that all other sums of money or
charges required to be paid by Tenant under the provisions of this Lease, shall
be deemed to be and shall become additional rent, whether or not the same be
designated as such, and shall be included in the term "rent" wherever used in
this Lease. If such amounts are not paid by Tenant at the time provided in this
Lease, they shall nevertheless be collectible from Tenant as additional rent
with the next installment of rent thereafter falling due hereunder, but nothing
herein contained shall be deemed to suspend or delay the payment of any sum at
the time it becomes due and payable hereunder, or limit any other remedy of the
Landlord.
SECTION 27.2. EXCUSE FOR NON-PERFORMANCE. Anything in this agreement to the
contrary notwithstanding, if performance of any act or obligation is prevented
or delayed by Act of God, war, labor disputes, fire, windstorm, explosion,
collapse of structure, riot, government regulation, delays by government bodies
or any other cause or causes beyond the reasonable control of Landlord or Tenant
(except those unlisted causes relating to the financial status of Landlord or
Tenant or general economic conditions), the time for the performance of the act
or obligation will be extended for the period that such act or performance is
delayed or prevented by any such cause. This provision shall not operate to
excuse Tenant from prompt payment of rent, percentage rent, additional rent or
any other payments required by the terms of this Lease. No damage to, vacancy
of, or failure to open for business by any other store or stores in the Shopping
Center, including department stores, shall excuse the Tenant from opening for
business as required hereunder or paying any rentals required herein.
SECTION 27.3. SUCCESSORS. All rights and liabilities herein given to, or imposed
upon, the respective parties hereto shall extend to and bind the respective
heirs, executors, administrators, successors, and assigns of the said parties;
and if there shall be more than one tenant, they shall all be bound jointly and
severally by the terms, covenants, conditions and agreements herein. No rights,
however, shall inure to the benefit of any assignee of Tenant unless the
assignment to such assignee has been approved by Landlord in writing as
hereinbefore provided.
SECTION 27.4. CONSENT AND APPROVAL. Whenever under this Lease the consent or
approval of either party hereto is required by the other party, such consent or
approval shall not be unreasonably withheld or delayed. In each instance where
Tenant requests Landlord's consent, Tenant shall provide Landlord with such
information and documentation as Landlord may reasonably require. Tenant agrees
to pay to Landlord a reasonable charge established by Landlord to reimburse
Landlord for its costs incurred as a result of Tenant's request for Landlord's
consent or approval of any matter, such costs to include, without limitation,
Landlord's administrative time, legal fees, phone, mail, copy charges, and
architect and engineer's fees. Landlord may, at its option, request prepayment
of the charge prior to undertaking any review of each request for consent made
by Tenant, condition its consent on the payment of such fees, or xxxx Tenant for
such charges as additional rent.
Said fees shall be payable notwithstanding Landlord's denial of consent, or
Tenant's failure to complete the transaction for which consent is requested.
Landlord's charge under this provision shall not exceed $500.00, without
advanced written notice to Tenant.
Landlord's consent or approval of any matter requested by or on behalf of Tenant
shall not constitute a representation by Landlord that the matter approved is in
compliance with any federal, state or local law, any applicable code or standard
or that the matter requested is suitable for or in the best interest of Tenant
or Tenant's business. Tenant shall remain solely responsible for the legality,
propriety and fitness of any matter for which Tenant seeks Landlord's consent,
including, but without limitation, its compliance with all laws, regulations,
and codes.
SECTION 27.5. ENTIRE AGREEMENT. This Lease and the exhibits now or hereafter
attached (as provided herein) and forming a part hereof, set forth all the
covenants, promises, agreements, conditions and understandings between Landlord
and Tenant concerning the Premises or matters related thereto, and there are no
covenants, promises, agreements, conditions or understandings, either oral or
written, between them other than are herein set forth. Except as herein
otherwise provided, no subsequent alteration, amendment, change or addition to
this Lease shall be binding upon Landlord or Tenant unless reduced to writing
and signed by them.
SECTION 27.6. NO PARTNERSHIP RELATION. Landlord is not intended to be in any way
or for any purpose a partner of Tenant in the conduct of its business, or
otherwise, or joint adventurer, or a member of a joint enterprise with Tenant.
The provisions of this Lease relating to the percentage rent payable hereunder
are included solely for the purpose of providing a method whereby the rent is to
be measured and ascertained.
SECTION 27.7. NET LEASE. Except as otherwise provided in Section 16.1 and
Article 17, it is intended that the Rent provided for herein shall be an
absolute net return to Landlord for the term of this Lease without any abatement
or offset whatsoever and, except for (i) Landlord's Work, (ii) the provisions of
Section 14.7 regarding certain Hazardous Materials, and (iii) the provisions of
Section 24.4, Tenant's use and occupancy of the Premises shall be free of any
expenses or charges whatsoever to Landlord with respect to the Premises,
including, but not limited to, all insurance premiums, all utility charges, all
Taxes and other similar assessments, all restoration, repairs and maintenance,
and all other costs of, and with respect to, the Premises.
SECTION 27.8. NO PERSONAL LIABILITY OF LANDLORD. Notwithstanding anything to the
contrary contained in this lease, it is specifically understood and agreed that
there shall be absolutely no personal liability on the part of Landlord or any
successor in interest of Landlord, or any partner, stockholder, officer,
director or trustee of Landlord or any successor in interest of Landlord, with
respect to any of the terms, covenants and conditions of this Lease, and that
Tenant shall look solely to the estate and interest of Landlord (or such
successor in interest of Landlord) in the Shopping Center for the satisfaction
of each and every remedy of Tenant in the event of any breach by Landlord or by
such successor in interest of any of the terms, covenants and conditions of this
lease to be performed by Landlord, such exculpation of personal liability to be
absolute and without any exception whatsoever.
SECTION 27.9. NOTICES. Any notice, demand, request or other instrument required
to be given under this Lease shall be delivered in person to a director,
partner, officer, or local manager or assistant manager, or sent by United
States certified mail, postage prepaid, and addressed: (a) if to Landlord, at
Landlord's address specified in Article 1 or at such other address as it may
designate by written notice, and (b) if to Tenant, at the address specified in
Article 1, or such other address as Tenant shall designate by written notice. In
addition to the foregoing, either party may send any such notice, demand,
request or other instrument by facsimile transmission sent to the other party at
the facsimile number specified in Article 1, or such other number as either
party may designate to the other in writing. Notices to Leasehold Mortgagees
required under Article 22 shall be made in person or by mail at the address
specified on the Mortgage, or such other place as may be designated by written
received by Landlord.
SECTION 27.10. CAPTIONS. The captions used as headings for the various subject
matters appearing in this Lease are used only as a matter of convenience to help
find subject matters and are not to be construed as part of this Lease
provisions nor in determining the intent of the parties to this Lease.
SECTION 27.11. BROKERAGE. Each of the parties represents and warrants that there
are no claims for brokerage commissions or finder's fees in connection with the
execution of this Lease, except as listed below, and each of the parties agrees
to indemnify the other against, and hold it harmless from, all liabilities
arising from any such claim (including, without limitation, the cost of
attorney's fees in connection therewith). Landlord agrees to pay all commissions
owing to Schlossman and Xxxxxxxxx, Inc.
SECTION 27.12. SEVERABILITY. If any term, covenant or condition of this Lease
shall, to any extent, be invalid or unenforceable, the remainder of this Lease,
or the application of such term, covenant or condition to person or
circumstances other than those in respect to which it is held invalid or
unenforceable, shall not be affected thereby and each term, covenant or
condition of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
SECTION 27.13. NO OPTION. The submission of this Lease for examination does not
constitute a reservation of or option for the Premises and this Lease becomes
effective as a Lease only upon execution and delivery thereof by Landlord and
Tenant.
SECTION 27.14. RECORDING. Neither party shall record this Lease. However, upon
the request of either party hereto, each party shall join in the execution and
delivery to each other of counterparts of a short form or memorandum of lease in
recordable form substantially in the form and substance annexed hereto as
Exhibit 6 and made a part hereof, for the purpose of recordation, and either
party may record at the sole cost and expense of the party so recording. Said
short form or memorandum shall describe the parties, the Premises, the term of
this Lease and any special provisions, and shall incorporate this lease by
reference, but shall not include provisions relating to Rent. Said short form or
memorandum shall also set forth a statement to the effect that this Lease does
not grant Tenant any option to purchase the Premises or any part thereof. Tenant
agrees that contemporaneously with the expiration of the term of this Lease or
sooner termination as herein expressly provided or as may hereafter be agreed to
in writing by the parties or at any time subsequent to such expiration, within
five (5) business days following demand therefor by Landlord, Tenant shall
execute and deliver to Landlord an agreement in recordable form evidencing the
expiration of the term of this Lease or such other termination of this Lease.
The provisions of the preceding sentence shall survive the expiration of the
term of this Lease or other termination of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have signed this Lease as of
the day and year first above written.
WEST ACRES DEVELOPMENT,
A GENERAL PARTNERSHIP
By /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
---------------------------------------
Its: General and Managing Partner
FOUNDERS FOOD & XXXXXXX, LTD.
By /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Its: President
LIST OF EXHIBITS
The exhibits listed below and attached or to be attached to this Lease
are hereby incorporated in and made a part of this Lease:
EXHIBIT 1 - Shopping Center Site Plan with the Founders Food & Xxxxxxx, Ltd.
Land outlined in red and the Shopping Center outlined in blue.
EXHIBIT 2 - Site Plan for the Premises
EXHIBIT 3 - Verification of Rent
EXHIBIT 4 - Tenant's Preliminary Plan
EXHIBIT 5 - Tenant's signage plans
EXHIBIT 6 - Short Form Lease
