SHOPPING CENTER
LEASE AGREEMENT
SOYODO, INC., A CALIFORNIA
CORPORATION
XX. XXXXX XXXXXXXX XXXXXXXX XXXXXX
XXXXXXXX, XXXXXXXX
Lease Draft Date: June 2, 2005
SHOPPING CENTER LEASE AGREEMENT
TABLE OF CONTENTS
ARTICLE I - ABSTRACT OF LEASE..................................................1
ARTICLE II - SHOPPING CENTER AND PREMISES......................................3
ARTICLE III - LEASE TERM AND POSSESSION OF PREMISES............................4
ARTICLE IV - RENT AND OTHER TENANT CONTRIBUTIONS...............................5
ARTICLE V - SECURITY..........................................................10
ARTICLE VI - CONSTRUCTION, ALTERATIONS, MAINTENANCE AND REPAIRS...............11
ARTICLE VII - USE OF PREMISES.................................................15
ARTICLE Vm - LIABILITY INSURANCE AND INDEMNIFICATION..........................18
ARTICLE IX - LOSS, DESTRUCTION OR TAKING OF PREMISES..........................20
ARTICLE X - ASSIGNMENT, SUBLETTING, MORTGAGING AND SUBORDINATION..............22
ARTICLE XI - DEFAULT AND REMEDIES FOR DEFAULT.................................24
ARTICLE XII - GENERAL PROVISIONS..............................................27
EXHIBITS
EXHIBIT A-l Site Plan of Shopping Center
EXHIBIT A-2 Legal Description of Shopping Center
EXHIBIT B Minimum Rent
EXHIBIT C-l Landlord's Work
EXHIBIT C-2 Tenant's Work
EXHIBIT D Sign Criteria for Shopping Center
EXHIBIT E Guaranty
EXHIBIT F Prohibited Uses
EXHIBIT G Rules and Regulations
RIDER
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SHOPPING CENTER LEASE AGREEMENT
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ARTICLE I - ABSTRACT OF LEASE
Date of Lease: This Lease is entered into by the undersigned parties on this 6th
of June, 2005
1.1 PARTIES
A. LANDLORD
Name: Inland Commercial Property Phone: (000)000-0000 0000
Management, Inc., an Illinois Rent Payment: Butterfield
corporation, as managing agent Road Oak
for the owner of the Shopping (Location) Xxxxx, XX 00000
Center (000)000-0000
Address:(for 0000 Xxxxxxxxxxx Xxxx
xxxxxxx) Xxx Xxxxx, XX 00000
B. OWNER
Name: Inland Real Estate LB I LLC Phone: (630)218 -8000
Address: (for 0000 Xxxxxxxxxxx Xxxx Xxx
xxxxxxx) Xxxxx, XX 00000
C. TENANT
Name: (and Soyodo, Inc., a California Phone:Store (000)000-0000
Status corporation Name: (Trade Soyodo
Address: 310N.XxXxxxxx#C Name)
(for notices) Xxxxxxxx, XX 00000
D. GUARANTOR
Name: Ru Hua Song Phone: (000)000-0000
Address: 310N.XxXxxxxx#C
Xxxxxxxx, XX 00000
1.2 PROPERTY
A. SHOPPING CENTER
Name: Address: St. Xxxxx Crossing Description: Site Plan
(or Location) 000-000 Xxxxx Xxxxxx showing the layout of
(include Xxxxxxxx, XX 00000 Shopping Center(and
County) DuPage approximate location of
Premises) is attached as
Exhibit A-1 legally
described on Exhibit A-2.
B. PREMISES
Space No.:(or 000-000 Xxxxx Xxxxxx Description: Approximately
Location) Xxxxxxxx, XX 00000 2,600 square feet of gross
floor area as outlined on
the Site Plan attached as
Exhibit A-l.
1.3 TERM OF LEASE
A. Commencement of Term as defined in Section 3.1 A shall occur upon
delivery of possession to Tenant.
B. Rent Commencement Date shall be the date on which Landlord delivers
possession of the Premises to Tenant pursuant to Section 6.2.
C. Termination of Lease shall be on the last day of the month which is
five (5) years and three (3) months after the first full month
following the Rent Commencement Date above.
Other: NONE
D. Extended Term:
Tenant shall have the option to extend the Term for one (1)
period(s) of five (5) years.
E. Anticipated date for Tenant to open and conduct business at the
Premises is August 1, 2005.
After determination of the commencement of the Term and opening of
Tenant's business, the Landlord will identify the Commencement Date,
Termination Date and Opening Date as follows and such dates will be
binding upon both parties hereto:
Commencement Date:____________________________________
Termination Date:_____________________________________
Opening Date:_________________________________________
1.4 RENT AND OTHER TENANT CONTRIBUTIONS
A. Minimum Rent shall be: See Exhibit B
B. Tenant's initial share of Common Area Expenses as defined in Section
4.3A shall begin at $13,155.96 annually ($1,096.33 monthly), with an
annual adjustment (Section 4.3 C) and Tenant's initial share of Real
Estate Taxes as defined in Section 4.3A shall begin at $5,511.96
annually ($459.33 monthly), with an annual adjustment (Section
4.3C), and Merchant's Association Fee as defined in 4.7 A shall
begin at $900.00 annually ($75.00 monthly).
C. The term "Rent" shall include Minimum Rent, Additional Rent and all
other amounts payable by Tenant pursuant to the terms of this Lease.
D. Notwithstanding anything in this Lease to the contrary. Rent for the
first month ("Initial Rent") and the Security Deposit set forth in
Section 1.5 A below shall be paid to Landlord upon execution of the
Lease by Tenant. The Initial Rent shall be applied toward the first
month that Rent is due pursuant to Section 4.1 and Exhibit B.
1.5 SECURITY
A. Tenant's Security Deposit shall be $24,700.02 (Section 5.1). If
Tenant has not been in default during the first twenty-four (24)
months of the Term. Landlord shall apply $4,116.67 (one month of
Minimum Rent) of [he Security Deposit toward the Minimum Rent for
the twenty-fifth (25th), twenty -sixth (26") and twenty-seventh
(27") month of the Term. Notwithstanding the foregoing. Tenant shall
remain obligated to pay all additional Minimum Rent and Additional
Rent during the twenty-fifth (25"'), twenty-sixth (26"') and
twenty-seventh (27'"') months of the Term.
B. Tenant's personalty securing this Lease (Section 5.2):
|X| All inventory of Tenant placed in or on the Premises,
excluding that sold in the ordinary course of business.
|X| All furnishings, trade fixtures, general equipment and
machinery placed in or on, or attached to, the Premises.
C. Guaranty (See Exhibit E).
1.6 CONSTRUCTION, ALTERATIONS, MAINTENANCE, & REPAIRS
A. Initial construction by Landlord (Section 6.2):
None |X| (See Exhibit C-l)
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B. Initial Construction by Tenant (Sections 6.4 and 6.7):
_______ None |X| (See Exhibit C-2)
C. Sign criteria (Section 6.5) are attached as Exhibit D.
1.7 USE OF PREMISES
A. Permitted uses of Premises: Tenant shall use the Premises for the
operation of a Chinese book store selling CD's, DVDs, VCDs, books,
gifts, stationary, novelty clothing, balls, badminton and ping pong
equipment, and for no other purposes whatsoever.
B. Specifically excluded uses (in addition to those excluded by Section
7.1): See Exhibit F attached.
1.8 ABSTRACT OF VARIABLE PROVISIONS AND STANDARD PROVISIONS
The previous provisions of this Article I will be referred to as the
"Abstract of Lease" and the provisions of the remaining Articles of this
Lease will be referred to as the "Standard Provisions." Wherever in the
Standard Provisions or elsewhere the parties, effective date, premises,
rent, charges or other variable terms are defined or referred to they
shall be those identified in the Abstract of Lease above and the exhibits
to this Lease. In the event of any conflict between the terms of the
Abstract of Lease and the Standard Provisions, the terms of the Abstract
of Lease shall supersede and prevail.
ARTICLE II - SHOPPING CENTER AND PREMISES
2.1 SHOPPING CENTER
The Premises are part of a shopping center which is depicted substantially
in accordance with a site plan ("Site Plan") as outlined in the attached
Exhibit A-l and which is legally described on Exhibit A-2. The purpose of
the dimensions set forth and the Site Plan attached is to show the
approximate location of the Premises. All dimensions are approximate only.
Landlord reserves the right to change the size, layout and location of any
buildings or common areas and facilities shown on Exhibit A-l as well as
reduce or expand the size of the Shopping Center.
The term "Shopping Center" herein shall be deemed to mean the entire
development, including any and all existing and proposed structures
(whether reflected in Exhibit A-l or hereafter incorporated in the
Shopping Center during the term or any extension thereof), parking
facilities, common facilities and the like to be built on the property
shown on said Exhibit A-l as the same may from time to time be increased
by the addition of other land, together with structures and the like
thereon which may from time to time be included by Landlord in the
development.
2.2 PREMISES
A. DESCRIPTION. Landlord on behalf of and as agent for the owner of the
Shopping Center hereby leases to Tenant and Tenant leases and
accepts subject to the terms and conditions of this Lease, those
premises referred to as the "Premises" and described in the Abstract
of the Lease and outlined on the attached Exhibit A-1. The Premises
shall have the approximate floor area and dimensions as set forth in
Section 1.2 of the Abstract of the Lease. If the floor area of the
Premises, determined as hereinafter provided, shall be more or less
than the estimated square footage set forth in Section 1.2 of the
Abstract of the Lease, neither the Minimum Rent nor calculation of
Tenant's Proportionate Share hereunder shall be affected. Under no
circumstances shall Landlord or Tenant be entitled to any rent
credits or other credits past, present and future for an error in
the square footage calculation.
B. EXCEPTION AND RESERVATION. Landlord reserves and excepts from the
Premises the roof and exterior walls of the building or buildings of
which the Premises are a part, and further reserves the right to
construct additional floors on the building of which the Premises
are a part and the right in, over and upon the Premises as may be
reasonably necessary or advisable for the servicing of the Premises
or of other portions of the Shopping Center.
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C. SUBSTITUTE PREMISES. At its option, Landlord may substitute for the
Premises other space (hereinafter called "Substitute Premises") in
the Shopping Center before the Commencement Date or at any time
during the term or any extension of the Lease. Insofar as reasonably
possible, the Substitute Premises shall have a comparable square
foot area and a configuration substantially similar to the Premises.
Tenant agrees that all of the obligations of this Lease, including
the payment of Minimum Rent, will continue despite Tenant's
relocation to the Substitute Premises. Upon substantial completion
of the Substitute Premises, this Lease will apply to the Substitute
Premises as if it had been the space originally described in the
Lease. Landlord shall use all reasonable efforts to minimize any
period when the Premises shall be closed to the public as a result
of relocation. Tenant's Minimum Rent (but not Additional Rent) shall
xxxxx from the date the Premises are closed until the date the
Substitute Premises are open for business. Tenant agrees to use all
reasonable efforts to open for business in the Substitute Premises
as quickly as is reasonably possible under the circumstances.
Landlord hereby agrees to pay the reasonable cost of relocation such
as equipment moving and installation costs. Landlord shall not,
however, be liable or responsible in any way for damages or injuries
suffered by Tenant pursuant to a relocation in accordance with this
provision including, but not limited to, loss of goodwill, business
or profits.
2.3 COMMON AREA
Tenant along with its Lease of the Premises receives the right to use, in
common with others, the Common Area of the Shopping Center. The term
"Common Areas" herein shall include all service roads, loading facilities,
sidewalks, automobile parking areas, driveways, footways and other
facilities designed for common use, as may be installed by Landlord as
hereinafter provided, and of such other and further facilities as may be
provided or designated from time to time by Landlord for common use,
subject, however, to the terms and conditions of this Lease and to
reasonable rules and regulations for the use thereof, as prescribed from
time to time by Landlord.
ARTICLE III - LEASE TERM AND POSSESSION OF PREMISES
3.1 TERM
A. INITIAL TERM. The term of this Lease ("Term") shall commence on the
date ("Commencement Date") when Landlord shall deliver possession of
the Premises to Tenant, as provided in Section 6.2 hereof. However,
notwithstanding the provisions of Section 6.2, if the Term has not
commenced on or before one (1) year from the date hereof, this Lease
shall automatically terminate. Notwithstanding the fact that the
Term commences upon possession of the Premises by Tenant, this Lease
and all of the obligations of Landlord and Tenant set forth herein
are binding and shall be in full force and effect from and after the
date of their mutual execution of this Lease. Upon determination of
the specific Commencement Date, Landlord shall have the right to
complete Section 1.3 of the Abstract of Lease setting forth the
Commencement Date, Termination Date and Opening Date and shall
notify the Tenant of such dates. The Term of this Lease shall end
(unless sooner terminated as provided herein) on the Termination
Date identified in the Abstract of Lease subject to Tenant's option
to extend the Term, if any, as set forth in Section 1.3 of the
Abstract of Lease.
B. EXTENDED TERM. Provided that Tenant is not in default hereunder,
both at the time of exercise of the option as well as at the time of
commencement of any Extended Term hereinafter defined and provided
that this Lease has not been terminated during the initial Term or a
prior Extended Term, Tenant shall have options to extend the Term as
set forth in Section 1.3 of the Abstract of Lease immediately
following the then current term and subject to the terms,
conditions, covenants and provisions of this Lease ("Extended
Term"). Tenant shall exercise its extension rights hereunder in each
instance by delivery to Landlord of written notice no earlier than
two hundred and seventy (270) days and no later than one hundred and
eighty (180) days prior to the expiration of the then current term.
Except as expressly set forth herein, nothing contained in this
Lease shall be construed as granting any rights to extend the Term
beyond the Termination Date. In the event Tenant is in default
either at the time it exercises its rights to extend or at the
intended commencement date of such Extended Term, then all of
Tenant's extension rights described in this Section and Section 1.3
of the Abstract of Lease shall terminate automatically.
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3.2 QUIET ENJOYMENT
Landlord agrees that, if the Rent and any other additional charges are
being paid in the manner and at the time prescribed and the covenants and
obligations of Tenant are being all and singularly kept, fulfilled and
performed, Tenant shall lawfully and peaceably have, hold, possess, use
and occupy and enjoy the Premises so long as this Lease remains in force
without hindrance, disturbance or molestation from Landlord, subject to
the specific provisions of this Lease.
3.3 SURRENDER OF PREMISES
A. OBLIGATIONS UPON SURRENDER. Upon any termination of this Lease,
whether by lapse of time, cancellation pursuant to an election
provided for herein, forfeiture or otherwise, Tenant shall
immediately surrender possession of the Premises and all buildings
and improvements on the same to Landlord in good and tenantable
repair, reasonable wear and damage from fire or other casualty or
peril excepted, and shall surrender all keys for the Premises to
Landlord at the place then fixed for the payment of Minimum Rent and
shall inform Landlord of all combinations of locks, safes and
vaults, if any, in the Premises.
B. RIGHT TO REMOVE. At any time during the ten (10) days before the
Termination Date of this Lease, Tenant, if not in default hereunder
at such time, shall have the right to remove, and at the end of the
Term, if directed to do so by Landlord, shall remove from the
Premises all furniture, furnishings, signs and equipment then
installed or in place in, on or about the Premises provided,
however, Tenant shall, and it covenants and agrees to, make all
repairs to the Premises required because of such removal. If any of
such property shall remain on the Premises after the end of the Term
hereof, at the option of Landlord, such property shall be and become
the property of Landlord without any claim therein of Tenant.
Landlord may direct Tenant to remove such property, in which case
Tenant agrees to do so, and to reimburse Landlord for any expense of
removal in the event Tenant shall fail to remove such property if
and when directed. Tenant hereby grants Landlord the absolute right
to dispose of any property remaining on the Premises following
Tenant's failure to remove same in any manner as Landlord determines
in its sole discretion without liability therefor to Tenant and at
Tenant's sole cost and expense.
C. Upon termination of this Lease, Tenant shall peaceably surrender the
Premises including all fixtures and tenant improvements in a neat
and "broom clean" condition. Tenant shall also repair any holes or
openings made by Tenant in the walls, roof or floor of the building,
remove any protuberance and perform any maintenance or repairs
required of Tenant by this Lease. All such repair work shall be
completed in accordance with the requirements of Section 6.4. If
directed to do so by Landlord, Tenant, at its cost, shall also
remove any improvements, additions or alterations made to the
Premises by Tenant even though such improvements by the terms of
this Lease are part of the Premises.
D. Upon termination of this Lease, Tenant shall, if requested by
Landlord, execute a quitclaim deed, quitclaiming all of its right,
title and interest in and to the Premises to the Landlord.
3.4 HOLDING OVER
Any holding over after the expiration of the Term of this Lease, without
the consent of Landlord, shall be construed to be a tenancy from month to
month, cancelable by either Landlord or Tenant upon thirty (30) days'
written notice, and at Minimum Rent equal to one hundred fifty percent
(150%) of the total Minimum Rent as existed during the last year of the
term hereof, and further upon the terms and conditions as existed other
than payment of Minimum Rent during the last year of the term hereof.
3.5 ABANDONMENT
If Tenant, prior to the expiration or termination of this Lease by lapse
of time or otherwise, relinquishes possession of the Premises without
Landlord's written consent, or fails to open for business under usual
business hours, such relinquishment shall be deemed to be an abandonment
of the Premises and an event of default under this Lease. The Premises and
all furnishings, trade fixtures, equipment, machinery or other property
therein shall be conclusively deemed abandoned by Tenant upon (a) failure
by Tenant to open the Premises for business under usual business hours for
seven (7) consecutive days or (b) Tenant's removal of all or a substantial
portion of Tenant's furnishings, equipment, machinery or other property
from the Premises.
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ARTICLE IV - RENT AND OTHER TENANT CONTRIBUTIONS
4.1 MINIMUM RENT
PAYMENT OF MINIMUM RENT. Tenant shall pay to Landlord the minimum annual
rent (hereinafter referred to as "Minimum Rent") set forth in the Abstract
of Lease, payable in advance in equal monthly installments on the first
day of each calendar month, without prior demand therefore. Such Minimum
Rent shall commence to accrue on the Rent Commencement Date. The first
payment date for Minimum Rent shall be the Rent Commencement Date and
shall, if the Rent Commencement Date is other than the first day of a
month, include Minimum Rent for the fractional month on a per diem basis
(calculated on the basis of a thirty-day month); and thereafter the
Minimum Rent shall be paid in equal monthly installments in advance on the
first day of each calendar month during the Term of this Lease.
4.2 INTENTIONALLY DELETED
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4.3 TENANT'S SHARE OF COMMON AREA AND SHOPPING CENTER EXPENSES
A. MONTHLY PAYMENT OF ESTIMATED CHARGE. For each year of the Term
hereof, Tenant shall pay to Landlord, as additional rent
("Additional Rent"), Tenant's proportionate share ("Proportionate
Share") of: (i) all costs of operation and maintenance of the common
facilities of the Shopping Center ("Common Area Expenses"); (ii) all
real estate taxes levied and assessed against the Shopping Center
("Real Estate Taxes"); (iii) all insurance coverage upon the
Shopping Center and its operations ("Insurance"); and (iv)
Landlord's administrative fees ("Administrative Fee"). As and for
Tenant's Proportionate Share, as hereinafter defined, set forth in
the Abstract of Lease, such amount shall be payable as Additional
Rent in equal monthly installments at the same times as Minimum Rent
is payable hereunder, without demand and without any deduction or
setoff whatsoever.
B. DEFINITIONS. For the purpose of this Section:
(1) "Tenant's Proportionate Share" shall be a fraction equal to the
rentable square footage of the Premises divided by the total square
footage of all rentable floor space in the Shopping Center; provided
Landlord may exclude from such rentable floor space in the Shopping
Center, at Landlord's option, any portions of the Shopping Center:
(i) not occupied and open for business during all or any portion of
the subject year, (ii) leased to or used by other parties as major
tenants (tenants occupying greater than ten percent (10%) of the
Shopping Center, theaters, restaurants, storage areas, or premises
in separate building, where such parties are not required to pay a
full prorata share of Common Area Expenses or Real Estate Taxes, as
the case may be, pursuant to a lease or other agreement with
Landlord, and (iii) with respect to Real Estate Taxes, areas of the
Shopping Center for which separate tax bills are received and which
are the sole responsibility of separate parties pursuant to a lease
or other agreement with Landlord; provided, Landlord shall also
deduct from Shopping Center Expenses (after computing Landlord's 15%
Administrative Fee) or Real Estate Taxes, as the case may be, all
amounts received from such excluded parties for Common Area Expenses
or Real Estate Taxes. If the Shopping Center shall be a part of or
shall include a group of buildings or structures collectively owned
or managed by Landlord or its affiliates, or shall include any space
used for office, medical, dental or other non-retail purposes.
Landlord may determine separately and allocate Real Estate Taxes or
Common Area Expenses between such buildings and structures and the
parcels on which they are located, and between the retail and
non-retail areas of the Shopping Center, in accordance with sound
accounting and management principles, in which event Tenant's
Proportionate Share shall be based on the ratio for which Landlord
separately determines such Real Estate Taxes or Common Area
Expenses, subject to the adjustments set forth above; and
(2) Common Area Expenses shall include all expenditures incurred by or
on behalf of Landlord in operating, maintaining, repairing or
replacing the common facilities, including, without limitation,
exterior walls and other structural elements of the Shopping Center,
the cost of all of Landlord's gardening and landscaping,
assessments, repairs, preventive maintenance, any Association fees,
repainting including restriping or repaying of parking lot and
access ways, repairing or replacing any streets, curbs or parking
lots, roof repairs and replacement, updating and maintenance and
replacement of directory signs, rental of signs and equipment,
lighting, sanitary control, cleaning, sweeping, removal of ice,
snow, trash, rubbish, garbage and other refuse, repair or
replacement of awnings, depreciation over a period not exceeding
sixty (60) months of machinery, equipment and other assets used in
the operation and maintenance of the Shopping Center, repair or
replacement of on-site water lines, sanitary sewer lines, storm
water lines, gas lines and electrical lines and equipment serving
the Shopping Center, all costs, charges and expenses incurred by
Landlord in connection with any change of any company providing
utility services including without limitation repair, installation
and service costs associated therewith, the cost of police, fire
protection, security and traffic control services, Landlord's
management fees, all Landlord's insurance relating to the common
facilities or the Shopping Center as a whole or the operations
thereon including, but not limited to, casualty insurance, flood
insurance, rent loss insurance, fire insurance and extended coverage
as well as general liability insurance, umbrella liability
insurance, bodily injury, public liability, property damage
liability, automobile insurance, sign insurance, and any other
insurance carried by Landlord in limits selected by Landlord,
reasonable reserves for anticipated expenditures, and the cost of
all personnel required to supervise, implement and accomplish all of
the foregoing; and
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(3) Real Estate Taxes shall include all taxes, assessments and other
governmental charges, general and special, ordinary and
extraordinary, of any kind and nature whatsoever, including, but not
limited to, assessments for public improvements or benefits, which
shall during the Term hereof be laid, assessed, levied, imposed upon
or become due and payable and Landlord's reasonable expense in
obtaining any refund or reduction of Real Estate Taxes, subject only
to the following:
(a) Franchise, estate, inheritance, succession, capital levy,
transfer, federal and state income and excess profit taxes
imposed upon Landlord shall be excluded; and
(b) If at any time during the Term of this Lease, a tax or excise
on rents or other tax, however described, is levied or
assessed against Landlord on account of the rent expressly
reserved hereunder, as a substitute in whole or in part for
taxes assessed or imposed on land and buildings or on land or
buildings, such tax or excise on rents or other tax shall be
included within the definition of real estate taxes, but only
to the extent of the amount thereof which is lawfully assessed
or imposed as a direct result of Landlord's ownership of this
Lease or of the Rent accruing under this Lease;
(4) Landlord's Administrative Fee shall be an amount which is not to
exceed fifteen percent (15%) of the aggregate of the sum of items B
(2) and (3) hereinabove.
C. ANNUAL STATEMENT AND ADJUSTMENT. After the end of each calendar
year, and following receipt of xxxxxxxx for Real Estate Taxes and
Insurance, Landlord shall supply Tenant with a summary of all costs
and expenditures as enumerated above and a determination of Tenant's
Proportionate Share. In the event the amount billed to Tenant shall
be less than its Proportionate Share, the same shall be paid within
ten (10) days after notice of such determination. Said summary shall
also contain a determination by Landlord of the monthly sum to be
paid by Tenant during the succeeding months of the lease year, if an
adjustment is required, which determination shall be based in part
on the expenses for the preceding year modified by any known
increases in the cost of said services. Failure of Landlord to
provide notice of under or overpayment will not waive any of
Landlord's rights to collect such payments or Tenant's obligations
hereunder including, but not limited to. Tenant's obligations to pay
its Proportionate Share of all costs and expenditures, but will
extend each party's rights until the date notice is given. Under no
circumstances shall the Tenant's share of Common Area Expenses ever
be less than the minimum outlined in Section 1.4 B of the Abstract
of Lease.
4.4 RENT PAYMENT PROCEDURES
A. PAYMENT LOCATION. Tenant shall, without prior notice or demand and
without any setoff or deduction whatsoever, pay all Minimum Rent,
Additional Rent and other charges and render all statements herein
prescribed at the Landlord's address or other office specifically
provided in the Abstract of Lease or to such other person or
corporation, and at such other place as may be designated by
Landlord in writing from time to time.
B. TAXES ON RENT. Tenant shall further pay to Landlord any and all
excise, privilege, rental and other taxes, levied or assessed by any
governmental authority upon or measured by the Rent reserved to
Landlord under the provisions of this Lease. Such tax shall be paid
by Tenant whether or not it comprises a portion of any Real Estate
Taxes or real property tax bills.
C. INTEREST AND LATE CHARGES. Tenant covenants and agrees that all sums
to be paid under this Lease, if not paid when due, shall bear
interest on the unpaid portion thereof at the rate of eighteen
percent (18%) per annum from the date when due but not in excess of
the highest legal rates. Tenant further agrees that for each
calendar month, that the Rent is not paid to Landlord within ten
(10) days of the due date as provided herein above, Tenant shall
promptly pay to Landlord a sum equal to the greater of $50.00 or ten
(10%) percent of the monthly Rent as special damages. Tenant
acknowledges that late payment by the Tenant to Landlord of Rent
will cause Landlord to incur costs not contemplated by this Lease,
the exact amount of such costs being extremely difficult and
impractical to determine. Such costs include, without limitation,
lost use of funds by Landlord, charges that may be imposed on
Landlord by reason of late charges due on any obligation secured by
the Shopping Center, costs incurred in connection with accounting
for and attempting to collect late payments, outside collection
agency costs and expenses and other administrative and accounting
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costs related to late payments. Tenant acknowledges that the terms
of these special damages have been discussed and agreed upon by
Landlord and Tenant and that such amount is a fair and reasonable
estimate of costs which Landlord will incur by reason of late
payments. Landlord does not waive any rights under the law for
nonpayment of Rent. If Landlord shall pay any monies or incur any
expenses in correction of any violation of any covenant of Tenant
herein set forth, the amounts so paid or incurred shall, at
Landlord's option and on notice to Tenant, be considered Additional
Rent payable by Tenant with the first installment of Minimum Rent
thereafter to become due and payable, and may be collected or
enforced as by law provided with respect to Rent. Tenant shall pay
to Landlord Fifty and No/100 Dollars ($50.00) for each of Tenant's
checks returned to Landlord unpaid by Tenant's bank.
4.5 TAXES AND ASSESSMENTS ON TENANT'S PROPERTY
Tenant shall be responsible for and shall pay before delinquency all taxes
assessed against the leasehold interest or personal property of any kind
owned or placed in, upon or about the Premises by Tenant. Tenant hereby
agrees to protect and hold harmless Landlord and the Premises from all
liability for Tenant's share of any and all such taxes, assessments and
charges together with any interest, penalties or other charges thereby
imposed, and from any sale or other proceedings to enforce payment
thereof, and to pay all such taxes, assessments and charges before same
become a lien on the Premises.
4.6 UTILITIES CONSUMED ON THE PREMISES
In addition to all payments of Minimum Rent and Additional Rent herein
specified, Tenant shall be responsible for and shall pay for all utilities
used or consumed in or upon the Premises, and all sewer charges, as and
when the charges therefor shall become due and payable. Commencing on the
date Landlord notifies Tenant that the Premises are ready for occupancy,
Tenant shall make all appropriate applications to the local utility
companies and pay all required deposits for meters and service for all
utilities commencing with the delivery of possession of the Premises as
provided in Section 6.2. Landlord at its option may control the provider
of electrical service to the Premises. If permitted by Law, Landlord shall
have the right at any time and from time to time during the Term to either
contract for service from a different company or companies providing
electricity service (each such company shall hereinafter be referred to as
an "Alternate Service Provider") or continue to contract for service from
the present Provider of electric service ("Electric Service Provider").
Tenant shall cooperate with Landlord, the Electric Service Provider and
any Alternate Service Provider at all times and, as reasonably necessary,
shall allow Landlord, Electric Service Provider, and any Alternate Service
Provider reasonable access to the Shopping Center's electric lines,
feeders, risers, wiring, and any other machinery within the Premises.
Landlord shall in no way be liable or responsible for any loss, damage or
expense that Tenant may sustain or incur by reason of any change, failure,
interference, disruption or defect in the supply or character of the
electric energy furnished to the Premises, or if the quantity or character
of the electric energy supplied by the Electric Service Provider or any
Alternate Service Provider is no longer available or suitable for Tenant's
requirements, and no such change, failure, defect, unavailability or
unsuitability shall constitute an actual or constructive eviction, in
whole or in part, or entitle Tenant to any abatement or diminution of rent
or relieve Tenant from any of its obligations under the Lease.
In the event any utility or utility services (such as water or sewage
disposal) are not separately metered or assessed to Tenant or are
otherwise furnished to Tenant for which Landlord is billed directly or for
which a lien could be filed against the Premises or any portion thereof,
Tenant shall at Landlord's request pay the cost thereof to Landlord or any
proration of such cost attributable to the Premises as determined by
Landlord in Landlord's sole and absolute discretion as and when the
charges thereof become due and payable; otherwise, Tenant shall deliver
original receipt bills to Landlord within thirty (30) days after the same
are due and payable without interest or penalty. In no event shall
Landlord be liable for any interruption or failure in the supply of any
utilities to the Premises.
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4.7 SHOPPING CENTER PROMOTIONS
A. MERCHANT'S ASSOCIATION. In the event any merchant's association
shall be formed in which the tenants in the center are included,
Tenant agrees to maintain a membership therein, to attend meetings
thereof and to pay such dues and assessments as may be required
therein.
B. CENTER PROMOTIONS. Tenant agrees to participate in and to pay its
pro-rata share of all center-wide promotions including cooperative
advertising employed in connection with the said promotions. Tenant
will include the name and location of the center in all advertising
done by Tenant for its business in the Premises.
C. Landlord, at its option, may include the costs described in
paragraphs A & B as Common Area Expenses under Paragraph 4.3 of this
Lease.
4.8 INDEPENDENT COVENANTS
Tenant's covenants to make payments pursuant to this Lease including, but
not limited to, Minimum Rent, Additional Rent are independent covenants
and, except as expressly set forth in this Lease, are not subject to
setoff, deduction, reduction, abatement or suspension of any kind during
the Term including any extension thereof.
ARTICLE V - SECURITY
5.1 SECURITY DEPOSIT
The Security Deposit reflected in the Abstract of Lease is due as an
initial Rent amount and failure to deliver such deposit to Landlord shall
be an event of default for nonpayment of Rent. When delivered to Landlord,
the Security Deposit shall remain on deposit with Landlord during the Term
of this Lease and any extensions thereof as security for the payment of
Rent and the full and faithful performance by Tenant of the covenants and
conditions of this Lease. In the event of any default, the Security
Deposit shall be retained by Landlord and may be applied toward damages
arising from such default. Said deposit shall not be construed as
liquidated damages. Upon yielding of the Premises at the termination of
this Lease, and provided no default has occurred, the Security Deposit
shall be returned to the Tenant. No interest shall be payable on the
Security Deposit. It is understood that Landlord shall always have the
right to apply said deposit, or portion thereof, to the curing of any
default that may exist. Should Landlord convey its interest under this
Lease, the Security Deposit, or the part or portion thereof not previously
applied, shall be turned over to Landlord's grantees or assignees; and
Tenant hereby releases Landlord from any liability with respect to the
Security Deposit and Tenant agrees to look solely to such grantee or
assignee for the return of the Security Deposit and this provision shall
also apply to subsequent grantees or assignees. Tenant agrees it will not
assign, pledge, mortgage or otherwise hypothecate its interest in the
Security Deposit. Should the entire Security Deposit, or any portion
thereof, be appropriated and applied by Landlord for the payment of unpaid
Minimum Rent, Additional Rent or other sums due and payable to Landlord by
Tenant, then Tenant shall, upon written demand by Landlord, remit to
Landlord a sufficient amount in cash to restore the Security Deposit to
the original sum deposited, and Tenant's failure to do so shall constitute
a breach of this Lease for nonpayment of Rent. If Tenant is in default
under this Lease more than two (2) times within any twelve-month period,
irrespective of whether or not such default is cured, then, without
limiting Landlord's other rights and remedies provided for in this Lease
or at law or equity, the Security Deposit shall automatically be increased
by an amount equal to the greater of:
A. three (3) times the original Security Deposit, or
B. three (3) months' Minimum Rent, which shall be paid by Tenant to
Landlord forthwith on demand.
5.2 CHATTEL SECURITY AGREEMENT
As additional security for Tenant's covenants and obligations under this
Lease, Tenant hereby grants to Landlord a security interest in those items
of personalty identified in the Abstract of Lease, together with all
accessions to such personalty. In addition, Landlord's security interest
shall include all spare and repair parts for the personalty identified in
the Abstract of Lease and special tools and equipment and replacements
for, as well as the proceeds generated from the sale thereof, except
inventory sold in the ordinary course of business. As evidence of this
security interest, Tenant shall provide Landlord, at Landlord's request,
with an executed Financing Statement suitable for filing or recording,
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and, if requested by Landlord for clarification purposes, Tenant shall
provide a Security Agreement (Chattel Mortgage) separate and apart from
this Lease. Upon the occurrence of any event of default as defined in this
Lease, Landlord shall have all rights with respect to the above named
collateral granted a secured party pursuant to the Uniform Commercial Code
or other applicable statutes. Except by the written consent of the
Landlord, Tenant shall not execute or deliver any security interest in any
furnishings, trade fixtures, equipment, machinery or other property placed
upon the Premises at any time other than that granted Landlord herein.
5.3 LANDLORD'S LIEN
Landlord shall have a general lien on the leasehold estate hereby created
and on all property kept or used on the Premises, whether the same is
exempt from execution or not, to secure payment of any and all monies then
due or thereafter becoming due to Landlord under the terms and conditions
of this Lease, and to secure the prompt performance and fulfillment by
Tenant of each and every one of said terms and conditions. Said lien as
provided for in this paragraph attaches as of the date of execution hereof
and shall remain in full force and effect during the entire Term unless
expressly waived by Landlord in writing.
5.4 SECURITY IN ADDITION TO OTHER REMEDIES
The security given Landlord in this Article shall not limit, replace or
obviate the remedies of Landlord upon a default by Tenant as described at
Article XI below, including the right of Landlord to reenter the Premises,
distrain for rent or pursue its general lien upon Tenant's property in the
Premises described at Section 5.3.
ARTICLE VI - CONSTRUCTION, ALTERATIONS, MAINTENANCE AND REPAIRS
6.1 CONDITION OF THE PREMISES
Tenant has fully examined the Premises and, except for any initial
construction thereof as set forth on Exhibit C and Landlord's duty to
repair as provided in Section 6.3, Tenant hereby accepts the Premises "as
is" without any representation, warranty or expectation as to the
condition of the Premises.
6.2 INITIAL CONSTRUCTION BY LANDLORD
The responsibility for performance and payment for the initial
construction of improvements on and in connection with the Premises, if
any, is set forth in Exhibit C attached hereto and made a part hereof.
Landlord shall use commercially reasonable efforts to complete such
construction in a timely manner, provided that in the event the
construction is delayed or hindered by strike, casualty, fire, injunction,
inability to secure materials, restraint of law, action of the elements,
or any other cause beyond the reasonable control of Landlord, then the
period shall be extended to the extent of such delays.
Completion of the Premises shall be certified to Tenant in writing by
Landlord or its agent, and the delivery of such certificate of completion
to Tenant shall constitute delivery of possession of the Premises
hereunder. Tenant, its agents, servants and contractors, prior to the
delivery of possession of the Premises, shall have the right to enter upon
the Premises, for the purpose of taking measurements or making Tenant's
improvements therein, but for no other purposes; provided, however, that
such entry shall not interfere with or obstruct the progress of the work
being done by Landlord.
6.3 LANDLORD'S DUTY TO REPAIR
Landlord shall, subject to Tenant's reimbursement as provided in Section
4.3 herein, maintain in good repair the exterior walls, roof, and
sidewalks located on the Shopping Center. Tenant agrees that it will not
permit or authorize any person to go onto the roof of the building of
which the Premises are a part without the prior written consent of
Landlord. Said consent will be given only upon Landlord's satisfaction
that any repairs necessitated as a result of Tenant's action will be made
by Tenant, at Tenant's expense, and will be made in such a manner so as
not to invalidate any guarantee relating to said roof. Landlord shall not
be required to make any repairs to the exterior walls, roof, and sidewalks
unless and until Tenant has notified Landlord in writing of the need of
such repairs and Landlord shall have had a reasonable period of time
thereafter to commence and complete said repairs. Landlord may at its sole
discretion arrange for a maintenance contract of all roof structures, the
cost of which shall be Tenant's responsibility as to Tenant's
Proportionate Share thereof. Tenant shall pay, as Additional Rent to
Landlord, its Proportionate Share of the cost of said repairs and
maintenance incurred by Landlord.
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It is agreed that by accepting possession of the Premises, Tenant
acknowledges (i) Landlord's full and final completion of Landlord's work
as set forth in Exhibit C attached hereto and made a part hereof and (ii)
Landlord's construction and delivery of the Premises to Tenant in the
condition called for hereunder.
6.4 TENANT'S ALTERATIONS AND IMPROVEMENTS TO PREMISES
Tenant shall not make or cause to be made any alterations, additions or
improvements to the building, or install or cause to be installed any
interior signs, floor covering, exterior lighting, plumbing fixtures,
shades or awnings, radio or television antennae, loud speakers, sound
amplifiers or similar devices, or make any changes to the storefront or
exterior of the building without first obtaining Landlord's written
approval and consent. Tenant shall present to the Landlord plans and
specifications for such work at the time approval is sought. No additions,
alterations, changes or improvements shall be made which will weaken the
structural strength, lessen the value of, or change the architectural
appearance of any building or other construction. Use of the roof is
reserved to Landlord, and Tenant shall not go upon the roof without
Landlord's prior written consent.
Landlord may condition its approval of any additions or alterations by
Tenant on the requirement that Tenant or its contractor secure and bear
the cost of a labor and materials payment bond for the amount of the
proposed construction reflecting Landlord as an obligee.
All building materials and fixtures installed by Tenant shall be new or
completely reconditioned. All alterations, improvements, additions and
fixtures made or installed by Tenant as aforesaid shall remain upon the
Premises at the expiration or earlier termination of this Lease and shall
become the property of Landlord, unless Landlord shall, prior to the
expiration or termination of this Lease, have given written notice to
Tenant to remove the same, in which event Tenant shall remove the same and
restore the Premises to the same good order and condition in which it was
at the commencement of this Lease. Should Tenant fail so to do, Landlord
may do so, collecting, at Landlord's option, the cost and expense thereof
from the Tenant as Additional Rent, together with a fee of Five Hundred
and No/100 Dollars ($500.00) for the administrative costs thereof.
6.5 SIGNS
Tenant shall not place, alter, exhibit, inscribe, point, or affix any
sign, awning, canopy, advertisement, notice or other lettering on any part
of the outside of the Premises or of the building of which the Premises is
a part, or inside the Premises if visible from the outside, without first
obtaining the Landlord's written approval thereof, and Tenant further
agrees to maintain such sign, awning, canopy, decoration, advertising
matter, lettering, etc., as may be approved in good condition and repair
at all times, and repair all damage to the Premises that is caused by the
installation, maintenance or removal of such signs, lettering, etc. All
signs shall comply with the sign criteria provided by Landlord in Exhibit
D, and Tenant shall be obligated to install at least one sign in
conformance with, as well as any additional signs required by, such sign
criteria. All signs shall comply with applicable ordinances or other
governmental restrictions and the determination of such requirements and
the prompt compliance therewith shall be the responsibility of the Tenant.
6.6 FURNITURE, TRADE FIXTURES AND EQUIPMENT
Tenant shall not cut or drill into, or secure any trade fixture, apparatus
or equipment of any kind to any part of the Premises without first
obtaining the written consent of Landlord. All furnishings, trade
fixtures, equipment, and machines installed by Tenant in the Premises
shall be new or completely reconditioned and remain the property of Tenant
subject to Landlord's security interest as defined in Section 5.2 above
and shall be removable by Tenant subject to Landlord's security interest
as defined in Section 5.2 at the expiration or earlier termination of this
Lease or any renewal or extension thereof, provided that in the event of
such removal Tenant shall promptly restore the Premises to their original
order and condition. Any such equipment not removed at or prior to such
termination shall, at Landlord's option, be and become the property of
Landlord.
6.7 INITIAL INSTALLATION AND IMPROVEMENTS BY TENANT
Tenant shall submit to Landlord complete architectural, electrical and
mechanical plans and specifications covering all work which Tenant
proposes to do in the Premises including the fixturing thereof, whether
such work is to be done by Tenant or others. Such plans and specifications
shall be prepared in such detail as is required by the municipality in
which the Shopping Center is located and, if such municipality does not
require submittal of such plans and specifications, then in such detail as
Landlord reasonably requires and Tenant agrees not to commence work upon
any portion of the Premises until Landlord has approved such plans and
specifications in writing. Landlord agrees to act with reasonable
promptness with respect to the approval or non-approval of such plans and
specifications. Any changes in said plans or specifications must be
similarly approved, in writing, by Landlord.
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Upon receiving possession of the Premises from Landlord, Tenant shall with
due diligence proceed to commence work on these initial improvements and
alterations to the Premises and to install such furnishings, trade
fixtures and equipment and to perform such other work as shall be
necessary or appropriate in order to prepare the Premises for the opening
of business. In the event that Tenant does not open the Premises for the
conduct of its business by the date set forth in Section 1.3 of the
Abstract of Lease, Landlord, in addition to all other remedies hereunder,
shall have the right to terminate this Lease by giving Tenant written
notice of such termination, whereupon this Lease shall be terminated
unless by the date of the giving of said written notice, Tenant shall have
opened the Premises for the conduct of its business.
All of Tenant's work and installations shall be done in a first class,
workmanlike manner using qualified labor and high quality material and in
compliance with all laws, rules, regulations and orders of all
governmental authorities having jurisdiction thereof. Tenant's work shall
be conducted so as not to interfere with other work in progress in the
Premises or the Shopping Center and, in the performance of Tenant's work,
Tenant shall engage and employ only such labor as will not cause any
conflict or controversy with any labor organization representing trades
performing work for Landlord or others in the Shopping Center, or any part
thereof, including the Premises.
Tenant shall, at Tenant's own expense, promptly remove from the Premises
and the Shopping Center area all trash and debris which may accumulate in
connection with Tenant's work in the Premises. Tenant, prior to delivery
of possession, shall with the prior consent of Landlord be permitted to
install fixtures and equipment. Any work done by Tenant prior to delivery
of possession of the Premises shall be done in a manner as will not
interfere with the progress of the work by Landlord of completing
construction and Landlord shall have no liability or responsibility for
loss of, or any damage to fixtures, equipment or other property of Tenant
so installed or placed on the Premises.
Tenant will obtain a certificate of occupancy and deliver a copy thereof
to Landlord upon completion of Tenant's work.
6.8 MECHANIC'S LIENS
If Tenant makes any alterations or improvements in the Premises, Tenant
must pay for same when made. Nothing in the Lease shall be construed to
authorize Tenant or anyone dealing with or under Tenant, to charge the
rents of the Premises, or the property of which the Premises form a part,
or the interest of Landlord in the estate of the Premises, or any person
under and through whom Landlord has acquired its interest in the estate of
the Premises, with a mechanic's lien or encumbrance of any kind, and under
no circumstances shall Tenant be construed to be the agent, employee or
representative of Landlord in the making of any such alterations or
improvements to the Premises. If a mechanic's or materialmen's lien is
threatened by any contractor or supplier, or in the event of the filing of
a notice of any such lien, Tenant will promptly pay same and take steps
immediately to have same removed. If the lien is not removed within ten
(10) days from the date of written notice from Landlord, Landlord shall
have the right at Landlord's option to cause the same to be discharged by
record of payment, deposit, bond or order of a court of competent
jurisdiction or otherwise, or to pay any portion thereof and of the
amounts so paid, including attorneys' fees and expenses connected
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therewith and interest at the rate of 18% per annum on any sums paid or
advanced shall be Additional Rent due from Tenant to Landlord and shall be
paid to Landlord immediately upon rendition to Tenant of xxxx. Tenant will
indemnify and hold harmless Landlord from and against all loss, claims,
damages, costs or expenses suffered by Landlord by reason of any repairs,
installations or improvements made by Tenant. At Landlord's option, Tenant
will provide a payment and performance bond in the amount of Tenant's work
and Tenant will deposit the cost of all Tenant's work into a construction
escrow, with a title insurance company acceptable to Landlord. The terms
of such escrow will provide for periodic payments directly to contractors
upon the deposit of all appropriate mechanic's lien waivers and
contractor's affidavits duly executed and acknowledged before a notary
public, necessary to ensure Landlord of lien-free construction. In
addition and at Landlord's option, Tenant shall be required to deliver to
Landlord cash or other security in amounts, content and form acceptable to
Landlord to hold as security for the prompt payment and to ensure
completion of Tenant's work. Tenant will provide insurance certificates
from all contractors performing Tenant's work in form and substance as is
required by Tenant under this Lease.
Except as may be expressly provided in this Lease, nothing in this Section
shall be construed to permit Tenant to place any materials upon the
Premises or cause any labor or construction, or to make any alterations,
additions, replacements or substantial repairs, in or about the Premises.
Landlord shall have the further right at any time, and from time to time,
to post and maintain on the Premises such notices as Landlord deems
necessary to protect the Premises, and Landlord, from all Hens of any
nature whatsoever.
No mechanics' or materialmen's liens or mortgages, deeds of trust, or
other Hens of any character whatsoever created or suffered by Tenant shall
in any way, or to any extent, affect the interest or rights of Landlord in
any buildings or other improvements on the Premises, or attach to or
affect Landlord's title to or rights in the Premises including, but not
limited to, Landlord's reversionary interest or other estate or interest
of Landlord in the Premises.
6.9 TENANT'S DUTY TO REPAIR AND MAINTAIN PREMISES
Tenant shall keep and maintain in good order, condition and repair
(including any such replacement, periodic painting, and restoration as is
required for that purpose) the Premises and every part thereof and any and
all appurtenances hereto located, including, but without limitation, the
exterior and interior portion of all doors, door checks, windows, plate
glass, store front, all plumbing and sewage facilities within the Premises
including free flow up to the main sewer line, fixtures, heating and air
conditioning and electrical systems (whether or not located in the
Premises), sprinkler systems, walls, floors and ceilings, motors
applicable to the Premises, and all alterations, improvements and
installations made by Tenant under the terms of this Lease and any
exhibits thereto, as herein provided; any repairs required to be made in
the Premises due to burglary of the Premises or other illegal acts on the
Premises or any damage to the Premises caused by a strike involving the
Tenant or its employees.
Tenant shall maintain and bear the expense of the light fixtures and
bulbs, air-conditioning units and filters, janitorial services, interior
pest control, and the like. In the event that any governmental
regulations, from time to time, shall require emergency lighting to be
installed in the Premises, the installation and the maintenance of the
same, including providing of battery power, shall be the responsibility of
Tenant. Tenant will not cause or permit accumulation of any debris or
extraneous matter on the roof of the Premises and will be responsible for
any damage caused to the roof by any acts of the Tenant, its agents,
servants, employees or contractors of any type or nature.
At all times during the Term, Tenant, at its sole cost and expense, shall
maintain an HVAC maintenance contract in effect with a licensed competent
contractor for the consistent periodic inspection and maintenance of all
HVAC systems located on or for the use of the Premises. If the permitted
use of the Premises is as a restaurant or other prepared food provider,
Tenant, at its sole cost and expense, shall maintain in effect at all
times during the Term of the Lease (or so long as the use of the Premises
includes a restaurant or other food provider) a grease trap maintenance
contract for the consistent and periodic inspection and maintenance of all
grease traps located on or which service the Premises. All HVAC and grease
trap maintenance contracts will be entered into with responsible,
experienced providers. Tenant is obligated to provide copies of all such
maintenance contracts to Landlord on an annual basis.
In accordance with any applicable municipal regulations, and at its own
expense, Tenant shall:
o place any rubbish or other matter outside the building or in the
Premises only in such containers as are authorized from time to time
by Landlord and pay the cost of removal of all of Tenant's refuse or
rubbish. If Landlord shall provide or designate a service for
picking up refuse or garbage, Tenant shall use the same at its sole
cost;
o see that there are no undue accumulations of garbage and refuse;
keep the same in proper containers on the interior of the Premises,
until called for collection; remove the same at Tenant's expense;
o keep the outside areas immediately adjoining the Premises clean and
free from ice and not place or permit any rubbish, obstructions or
merchandise in such areas; and
o keep the Premises (including all exterior surfaces and both sides of
all glass) clean, orderly, sanitary and free from objectionable
odors, insects, vermin and other pests.
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If Tenant refuses or neglects to commence and to complete repairs or
maintenance required herein promptly and adequately, Landlord may, but
shall not be required to, make and complete said repairs and Tenant shall
pay the cost thereof to Landlord as Additional Rent upon demand. Except as
provided in Section 6.3 above and except as specifically provided in
Section 9.1 (Fire and Casualty damage) and Section 9.2 (Condemnation),
Landlord shall not be obligated to repair, replace, maintain or alter the
Premises, and Tenant waives all laws in contravention thereof. With regard
to repairs, Tenant expressly waives any right pursuant to any law now
existing or which may be effective during the Term hereof, to make repairs
at Landlord's expense.
ARTICLE VII - USE OF PREMISES
7.1 TENANT'S USE OF THE PREMISES
Tenant shall use and occupy the Premises only for those permitted uses
reflected in the Abstract of Lease and for no other purpose without
Landlord's prior written consent. Additionally, except as provided to the
contrary as permitted uses in the Abstract of Lease, Tenant shall not
violate in any manner the exclusive use provisions granted by Landlord to
other tenants in the Shopping Center when Tenant has received written
notice of such exclusive use provisions. The prohibited uses set out
herein and those set forth on Exhibit F, apply to Tenant's and Tenant's
successors and assigns use of the Premises only and do not in any way
limit Landlord's or any other tenant's rights with respect to the Shopping
Center. If any conflict shall develop between Tenant and any other tenant
of the Shopping Center regarding any provisions in this Lease or in leases
to other tenants in the Shopping Center, Landlord shall be the sole
arbitrator of such conflict. Landlord's decision shall be binding on
Tenant and Landlord shall incur no liability to Tenant as a result of any
such determination made by Landlord hereunder. If Landlord permits a
deviation from any provision of this Lease, the permission, to be
effective, must be in writing and Landlord in its sole discretion may
withhold or revoke such permission. Failure of Landlord to enforce any
provision in this Lease or in leases to any other tenant in the Shopping
Center shall be at Landlord's sole discretion and Landlord shall incur no
liability to Tenant as a result of any determination made by Landlord.
Neither Tenant nor any person, firm, or corporation directly or indirectly
affiliated with Tenant nor Tenant's franchisers, subsidiaries, parents,
partners or shareholders (in a closely held corporation) shall conduct any
commercial establishment within three (3) miles (measured in a straight
line in all directions from the Shopping Center) of the Shopping Center
during the Term hereof. Nothing contained in this Lease is intended to (or
shall) limit or restrict the Landlord and its successors and/or assigns or
any other tenant and their successors and/or assigns from engaging in one
or more types of retail businesses. Tenant will at all time be the
operator and manager of the Premises any attempt to use a management
contract, concession agreement or any other arrangement whereby the
operation of the business of the Premises will be other than by Tenant
shall constitute a violation of this Lease.
7.2 USE OF COMMON AREAS
All facilities furnished by Landlord in the Shopping Center and designated
for the general use, in common, of occupants of the Shopping Center,
including Tenant hereunder, their officers, agents, employees and
customers, including, but not limited to, parking areas, streets,
sidewalks, canopies, roadways, loading platforms, washrooms, shelters,
ramps, landscaped areas and other similar facilities, shall at all times
be subject to the exclusive control and management of Landlord. Landlord
shall have the right from time to time to change the area, level, location
and arrangement of such parking areas and other facilities above referred
to, and make all rules and regulations pertaining to and necessary for the
proper operation and maintenance of the common facilities. Tenant
hereunder and any other subtenants and licensees shall comply with all
rules and regulations made by Landlord pertaining to the operation and
maintenance of said common facilities, including, but not limited to, such
reasonable requirements pertaining to sanitation, handling of trash and
debris, loading and unloading of trucks and other vehicles, and safety and
security against fires, theft, vandalism, personal injury and other
hazards. The parking area shall be limited to parking for customers of
tenants of the Shopping Center and Tenant and its employees may not park
in any portion of the parking area, except that portion thereof designated
or which may hereafter be designated as "Employees' Parking Area." Upon
request of the Landlord, Tenant will furnish to Landlord the license
numbers of any automobiles belonging to Tenant or its employees and in the
event any of such vehicles shall be parked in areas other than those
designated for employee parking, the Tenant shall pay to Landlord
forthwith on demand an amount equal to $10.00 per day of each day that
such vehicles shall be parked in such nondesignated areas.
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Landlord shall have the exclusive right at any and all times to close any
portion of the common areas for the purpose of making repairs, changes or
additions thereto and may change the size, area or arrangement of the
parking areas or the lighting thereof within or adjacent to the existing
areas and may enter into agreements with adjacent owners for
cross-easements for parking, ingress or egress. In the event that the
lighting controls for the common areas shall be located within the
Premises, then Landlord shall in such event have the right to enter the
Premises of the Tenant for the purpose of adjusting or otherwise dealing
with the said controls as required.
7.3 LANDLORD'S USE OF SHOPPING CENTER
Landlord may use or lease the remaining shops and spaces in the Shopping
Center for retail use, commercial offices or any other legally permitted
uses.
7.4 CONDUCT OF TENANT'S OPERATIONS
A. Tenant shall open for business and shall operate all of the Premises
during the entire Term of this Lease with due diligence and
efficiency as to produce the maximum Gross Receipts which may be
produced by such manner of operation. Subject to inability by reason
of strikes or labor disputes or unavailability of goods or other
reasons beyond Tenant's reasonable control, Tenant shall carry at
all times in the Premises a stock of merchandise of such size,
character and quality as shall be reasonably designed to produce the
maximum return to Landlord and Tenant. Tenant shall conduct its
business during the same days, nights and hours as the majority of
the stores in the Shopping Center, and shall continuously and
uninterruptedly occupy the Premises and operate the store throughout
the Term for the use permitted by this Lease. In the event Tenant
fails to continually and uninterruptedly occupy and operate its
business on the Premises, Tenant shall, in addition to all other
damages chargeable against Tenant in this Lease, pay the Landlord,
as damages, an amount equal to the diminution in value of the
Shopping Center resulting from this breach. The failure of Tenant to
open the Premises for business within sixty (60) days after delivery
of possession of the Premises from Landlord to Tenant as provided in
Section 6.2 of this Lease shall constitute an event of default
hereunder and shall, in addition to all other remedies permitted to
be exercised by Landlord under the Lease, obligate the Tenant to
reimburse Landlord for all of its initial construction costs and
expenses and broker's fees in connection with the negotiation and
execution of the Lease.
B. At all times throughout the Term, Tenant shall:
(1) comply with any and all requirements of any of the constituted
public authorities, and with the terms of any State or Federal law,
statute or local ordinance or regulation applicable to Tenant for
its use, safety, cleanliness or occupation of the Premises
including, but not limited to, the requirements of the Americans
with Disabilities Act, and hold Landlord harmless from penalties,
liens, costs, expenses or damages resulting from Tenant's failure to
do so. Tenant shall, at its sole cost and expense, promptly make all
additions, alterations or changes to the Premises, or any portion
thereof, as may be required by any governmental authority or agency
and shall comply promptly with all present and future orders, rules,
regulations and directions of any governmental authority or agency.
(2) Give to Landlord prompt written notice of any accident, fire or
damage occurring on or to the Premises.
(3) Load and unload goods at such times in the areas and through such
entrance as may be designated for such purposes by Landlord. Such
trailers or trucks shall not be permitted to remain parked overnight
in any area of the Shopping Center, whether loaded or unloaded.
(4) Conduct its business in the Premises in all respects in a dignified
manner and in accordance with high standards of store operation.
(5) Comply with all reasonable rules and regulations of Landlord in
effect at the time of the execution of this Lease or at any time or
times, and from time to time, promulgated by Landlord, which
Landlord in its sole discretion shall deem necessary in connection
with the Premises, the building of which the Premises are a part, or
the Shopping Center, including both the operation of Tenant's
business during certain minimum days and hours and the installation
of such fire extinguishers, water buckets and other safety equipment
as Landlord may reasonably require.
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C. Except by prior written consent of Landlord, Tenant shall not:
(1) Use or operate any machinery that, in Landlord's opinion, is harmful
to the building or disturbing to other tenants in the building of
which the Premises is a part, nor shall Tenant use any loud
speakers, televisions, phonographs, radios or other devices in a
manner so as to be heard or seen outside of the Premises, nor
display merchandise on the exterior of the Premises either for sale
or for promotional purposes, nor shall Tenant create any noxious or
objectionable odors which may be disturbing to other tenants in the
building of which the Premises is a part.
(2) Do, or suffer to be done, any act, matter or thing objectionable to
the fire insurance companies whereby the fire insurance or any other
insurance now in force or hereafter to be placed on the Premises or
any part thereof, or on the building of which the Premises may be a
part, shall become void or suspended, or whereby the same shall be
rated as a more hazardous risk than at the date when Tenant receives
possession hereunder. In case of a breach of this covenant, in
addition to all other remedies of Landlord hereunder, Tenant agrees
to pay to Landlord as Additional Rent any and all increase or
increases of premiums on insurance carried by Landlord on the
Premises, the Shopping Center or any part thereof, caused in any way
by the occupancy of Tenant.
(3) Conduct any auction, fire, bankruptcy or selling-out sale on or
about the Premises, solicit business in any parking or other common
area which may become such by the leasing or licensing to others by
Landlord of any property adjoining or near the Premises. Such
solicitation shall include, without limitation, distribution of
handbills or other advertising media in or on automobiles parked in
the parking area or other common areas, the use of pickets in such
areas, the use of loud speaker systems which are audible in such
areas, and the displaying of any of Tenant's merchandise or the
posting of any signs not expressly authorized hereunder in such
areas.
7.5 RIGHTS RESERVED BY LANDLORD
A. EASEMENTS. Landlord expressly reserves all rights in and with
respect to the land hereby leased not inconsistent with Tenant's use
of the Premises as provided in the Lease, including (without in any
way limiting the generality of the foregoing) the rights of Landlord
to establish common areas and grant parking easements to others and
to enter upon the Premises and give easements to others (even before
the establishment of common areas) for the purpose of installing,
using, maintaining, renewing and replacing such overhead or
underground water, gas, sewer and other pipe lines, and telephone,
electric, and power lines, cables and conduits as Landlord may deem
desirable in connection with the development or use of any other
property in the neighborhood of the land hereby leased, whether
owned by Landlord or not, all of which pipelines, lines and conduits
shall be buried to a sufficient depth or raised to a sufficient
height so as not to interfere with the use or stability of the
building or any other improvements on the land hereby leased.
B. INSPECTION, REPAIR AND INSTALLATION. Landlord reserves the right to,
at all reasonable times, by itself or its duly authorized agents,
employees and contractors to go upon and inspect the Premises and
every part thereof, to enforce or carry out the provisions of this
Lease, at its option to make repairs, alterations and additions to
the Premises or the building of which the Premises are a part, to
perform any defaulted obligation of Tenant or for any other proper
purposes. Landlord also reserves the right to install or place upon,
or affix to the roof and exterior walls of the Premises, equipment,
signs, displays, antenna, and any other object or structure of any
kind, provided the same shall not materially impair the structural
integrity of the building or interfere with Tenant's occupancy.
C. PRESENTATION FOR SALE OR LEASE. Landlord hereby reserves the right
during usual business hours to enter the Premises and to exhibit the
same for purposes of sale, lease or mortgage, and during the last
twelve (12) months of the term of this Lease, to exhibit the same to
any prospective Tenant, and to display a "For Sale" sign at any
time, and also after notice from either party of their intention to
terminate this Lease, or at any time within twelve (12) months prior
to the expiration of this Lease, a "For Rent" sign, a "For Sale"
sign, or both, as Landlord shall require, except on doors leading
into the Premises. Prospective purchasers or tenants authorized by
Landlord may inspect the Premises at reasonable hours at any time.
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7.6 HAZARDOUS MATERIALS
A. HAZARDOUS MATERIALS. Tenant shall comply with all environmental laws
relating to Hazardous Materials (as hereinafter defined) affecting
the Premises, the Shopping Center and the improvements thereon, and
the business conducted thereon by Tenant, or any activity or
condition on or in the Premises. As used herein, the term "Hazardous
Material" means any hazardous or toxic substance, material or waste
which is or becomes regulated by any local governmental authority,
and which is stored, used, disposed of or released in violation of
any law, rule, regulation or order of any local governmental
authority, the state in which the Premises is located or the United
States Government. Without limiting the generality of the foregoing,
Tenant shall not cause or permit any Hazardous Material to be
brought upon, kept, or used in or about the Premises or the Shopping
Center by itself or its agents, employees, contractors or invitees
without the prior written consent of Landlord. If Tenant breaches
the obligations stated in the preceding sentence, or if the presence
of Hazardous Material on the Premises caused or permitted by Tenant
results in contamination of the Premises, the Shopping Center or any
adjacent property, then Tenant shall indemnify, defend and hold
Landlord harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities or losses, including, without
limitation, diminution in value of the Premises, the Shopping
Center, and/or adjacent property, damages for the loss or
restriction on use of rentable or usable space or of any amenity of
the Premises, the Shopping Center, and/or adjacent property, damages
arising from any adverse impact on occupying or marketing of the
Premises, the Shopping Center, and/or adjacent property, and sums
paid in settlement of claims, attorneys' fees, consultant fees and
expert fees which arise during or after the term or extended term of
this Lease as a result of such contamination. This indemnification
includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal
or restoration work required by any federal, state or local
governmental agency or political subdivision because of Hazardous
Material present in the soil or ground water on or under the
Premises, the Shopping Center, and/or adjacent property. Without
limiting the foregoing, if the presence of any Hazardous Material on
the Premises or Shopping Center caused or permitted by Tenant
results in any contamination of the Premises, the Shopping Center,
and/or adjacent property, Tenant shall promptly take all actions at
its sole expense as are necessary to return the Premises, the
Shopping Center, and/or adjacent property to the condition existing
prior to the introduction of any such Hazardous Material to the
Premises, the Shopping Center, and/or adjacent property; provided
that Landlord's approval of such actions shall first be obtained,
which approval shall not be unreasonably withheld so long as such
actions would not potentially have any material adverse long-term or
short-term effect on the Premises, the Shopping Center, and/or
adjacent property. The provisions of this Section 7.6 shall survive
the expiration or earlier termination of this Lease and Tenant's
surrender of the Premises to Landlord.
Landlord shall have the right, but not the duty, to inspect the
Premises at any time to determine whether Tenant is complying with
the requirements of this Section 7,6. If Tenant is not in compliance
with the requirements of this Section 7.6, Landlord shall have the
right, but not the obligation, to immediately enter upon the
Premises to remedy any condition which is in violation of the terms
of this Lease or caused by Tenant's failure to comply with the
requirements of this Lease. Landlord shall use reasonable efforts to
minimize interference with Tenant's business as a result of any such
entry by Landlord.
ARTICLE VIII - LIABILITY INSURANCE AND INDEMNIFICATION
8.1 ALLOCATION OF RISKS AND INSURANCE
A. OPERATION OF SHOPPING CENTER AND COMMON FACILITIES. Landlord bears
the risk of and may insure, as practical or required by a lender of
Landlord, the operation of the Shopping Center as a whole or the
common facilities. Such insurance may include, but is not limited
to, general liability, umbrella liability, bodily injury, public
liability, property damage liability, automobile insurance, sign
insurance and the like in limits selected by Landlord. Tenant shall
pay to Landlord its Proportionate Share of such insurance as
provided in Section 4.3 above.
B. PREMISES AND SHOPPING CENTER. Landlord bears the risk of and shall
keep the buildings and improvements forming at any time a part of
the Premises insured against loss or damage by fire, with extended
coverage and vandalism and malicious mischief endorsement or their
equivalents, in such insurance companies as Landlord shall select
and in amounts not less than eighty percent (80%) of the replacement
cost of the building and structures insured with loss payable
thereunder to Landlord and to any authorized encumbrances of
Landlord (with standard mortgagee loss payable clause) in accordance
with their respective interests. Landlord may also maintain rent
insurance equal to at least one year's Rent. If the Lease is
canceled for any reason or if Tenant has committed an event of
default which has not been cured, all insurance proceeds shall be
paid and retained by Landlord, subject to the rights of any
authorized encumbrances of Landlord. Tenant shall pay to Landlord
its Proportionate Share of such Insurance as provided in Section 4.3
above. Tenant agrees not to keep upon the Premises any articles or
goods which may be prohibited by the standard form of fire insurance
policy. It is agreed between the parties that in the event the
insurance rates applicable to fire and extended coverage insurance
covering the within Premises shall be increased by reason of any use
of the Premises made by the Tenant, then Tenant shall pay to
Landlord such increase in Insurance as shall be occasioned by said
use.
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C. PROPERTY OF TENANT. Tenant agrees that all leasehold improvements in
the Premises (whether installed by Tenant or otherwise) and all of
Tenant's property, including but not limited to Tenant's betterments
and improvements, inventory, fixtures, furnishings, floor coverings,
equipment and all other property owned by it in, on, or about the
Premises shall be kept at the sole risk and hazard of the Tenant.
Landlord shall not be liable or responsible for any loss of or
damage to Tenant, or anyone claiming under or through Tenant, or
otherwise, whether such loss or damage is caused by or resulting
from a peril required to be insured hereunder, or from water, steam,
gas, leakage, plumbing, electricity or electrical apparatus, pipe or
apparatus of any kind, the elements or other similar or dissimilar
causes, and whether or not originating in the Premises or elsewhere,
irrespective of whether or not Landlord may be deemed to have been
negligent with respect thereto, and provided such damage or loss is
not the result of an intentional and willful wrongful act or the
gross negligence of Landlord. Tenant agrees that if any property
owned by it and located in the Premises shall be damaged or
destroyed by an insured peril, Landlord shall not have any liability
to Tenant, prior to any insurer of Tenant, for or in respect of such
damage or destruction, and Tenant shall require all policies of risk
insurance carried by it on its property in the Premises to contain
or be endorsed with a provision in and by which the insurer
designated therein shall waive its right of subrogation against
Landlord.
D. OPERATIONS OF TENANT. All operations conducted by Tenant in, on or
about the Premises shall be at Tenant's sole risk. In addition,
Tenant shall procure insurance for its operations as follows:
(1) Liability Insurance: Tenant shall keep in force at its own expense
commercial general liability insurance including bodily injury and
property damage and contractual liability insurance covering the
Premises, Tenant's use thereof and any use of motor vehicles by
Tenant within the Shopping Center against claims for "personal
injury" liability, including but not limited to, bodily injury,
death or property damage with limits of not less than a combined
single limit of One Million and No/100 Dollars ($1,000,000.00) per
occurrence and Two Million and No/100 Dollars ($2,000,000.00)
general aggregate and a One Million and No/100 Dollars
($1,000,000.00) umbrella policy, and Fire Legal Liability Insurance
in amounts sufficient to cover the replacement costs of the Premises
and loss of the use thereof.
(2) Plate Glass Insurance: Tenant shall keep and maintain in force
during the Term hereof, plate glass insurance upon windows and doors
in the Premises. Tenant may self-insure glass coverage with limits
acceptable to Landlord.
(3) Boiler machinery insurance required in the amount equal to value of
mechanical equipment.
(4) Dram Shop/Liquor Liability Insurance: In the event that at any time
during the Term of the Lease or any extension or renewal thereof,
drugs, prescription drugs, beer, wines or other alcoholic liquors or
beverages are sold or given away upon or from the Premises (it being
understood and agreed, however, the foregoing provision shall not
authorize the use of the Premises for such purposes without the
express written consent of the Landlord being set forth otherwise in
this Lease), Tenant shall, at its sole expense, obtain, maintain,
and keep in force, Dram Shop/Liquor Liability insurance protecting
both Tenant and Landlord in connection therewith with policy
provided for, from time to time, under the laws of the state in
which the Premises are located, with a minimum limit of One Million
and No/100 Dollars ($1,000,000.00) per occurrence. In the event
Tenant shall fail to procure such insurance, then sales of the
foregoing products shall be suspended until such coverage is again
in force.
E. REQUIREMENTS OF ALL POLICIES. All insurance policies required of
Tenant in this Lease shall be in the name of Tenant, and shall name
Landlord, and, upon request, any other party named by Landlord with
an interest in this Lease, as an additional insured for claims
arising from the acts or omissions of Tenant or its employees. Each
policy shall contain an express waiver of any right of subrogation
against Landlord and other name insured designated by Landlord. Said
policies shall be in Class "A-" or better companies authorized to
write such coverage in the state in which the Premises is located
and shall be reasonably acceptable to Landlord and/or its lender
(which shall be named as an additional insured if requested in
writing). Tenant will further deposit the policy or policies of such
insurance or certificates thereof (on Accord 25 forms) with Landlord
commencing with the date Tenant first enters upon the Premises for
any purpose. Each policy shall provide against cancellation without
thirty (30) days' prior written notice to the named insureds. The
deductibles on all such insurance will be in amounts acceptable to
Landlord. Tenant will pay all deductible amounts under all such
insurance policies.
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F. FAILURE TO PROCURE INSURANCE, In the event Tenant shall fail to
procure insurance required under this Article and fail to maintain
the same in force continuously during the Term, Landlord shall be
entitled to procure the same and Tenant shall immediately reimburse
Landlord for such premium expense.
8.2 INDEMNIFICATION AND WAIVER OF CLAIMS
Tenant indemnifies Landlord and waives claims as follows:
A. INDEMNIFICATION. Tenant will indemnify and defend Landlord and hold
it harmless from and against any and all claims, actions, damages,
losses, risks, liabilities and expense (including attorney's fees
and costs) in connection with the breach of any certification made
by Tenant in this Lease, loss of life, personal injury and/or damage
to property occurring in or about, or arising from or out of, the
Premises and adjacent sidewalks and loading platforms or areas
occasioned wholly or in part by any act or omission of Tenant, its
agents, contractors, customers or employees unless such claim,
action, damage, liability or expense is the result of the
intentional and willful act or the gross negligence of Landlord.
Additionally, Tenant agrees to indemnify, defend and hold harmless
Landlord with respect to any claim, cause of action or proceeding,
in law or in equity, civil, criminal or administrative, asserted or
brought by any person, firm, or corporation, including, without
limitation, any government or agency thereof, and any private
individual, corporation, or other entity claiming or asserting that
the exclusive uses contained in Section 7,1 constitute an unfair
method of competition or an unfair and deceptive act or practice in
commerce, or is in restraint of trade, or constitutes a violation of
any of the Anti-Trust Laws of the United States, including, but not
limited to, the Federal Trade Commission Act, or any state law
having as its purpose the preservation of competition and/or the
outlawing of agreements, combination, and conspiracies in restraint
of trade or commerce. Tenant agrees to defend, at its own cost and
expense, any lawsuit or proceeding referred to above and to
reimburse Landlord for any reasonable expenses or damages, including
reasonable attorney's fees and disbursements, incurred in any such
proceeding, lawsuit, administrative action, or investigation
commenced in whole or in part by reason of said exclusive clause.
B. WAIVER OF CLAIMS. Landlord and Landlord's agents, employees and
contractors shall not be liable for, and Tenant hereby releases all
claims for, damage to person and property sustained by Tenant or any
person claiming through Tenant resulting from any theft, fire,
accident, occurrence or condition in or upon the Premises or
building of which they shall be a part, including, but not limited
to, such claims for damage resulting from: (i) any defect in or
failure of plumbing, heating or air-conditioning equipment, electric
wiring or installation thereof, water pipes, stairs, railings or
walks; (ii) any equipment or appurtenances becoming out of repair;
(iii) the bursting, leaking or running of any tank, washstand, water
closet, waste pipe, drain or any other pipe or tank in, upon of
about such building or Premises; (iv) the backing up of any sewer
pipe or downspout; (v) the escape of steam or hot water; (vi) water,
snow or ice being upon or coming through the roof or any other place
upon or near such building or Premises or otherwise; (vii) the
falling of any fixture, plaster or stucco; (viii) broken glass; and
(ix) any act or omission of co-tenants or other occupants of said
building or of adjoining or contiguous property or buildings. In the
event the Premises or its contents are damaged or destroyed by fire
or other insured casualty, the rights, if any, of either party
hereto against the other with respect to such damage or destruction
are waived, and all policies of fire and/or extended coverage or
other insurance covering the Premises or its contents shall contain
a clause or endorsement providing in substance that the insurance
shall not be prejudiced if the insureds have waived the right of
recovery from any person or persons prior to the date and time of
loss or damage, if any.
C. NOTICE OF CLAIMS OR SUITS. Tenant agrees to promptly notify Landlord
of any claim, action, proceeding or suit instituted or threatened
against the Landlord. In the event Landlord is made a party to any
action for damages which Tenant has herewith indemnified Landlord
against, then Tenant shall pay all costs and shall provide effective
counsel in such litigation or shall pay, at Landlord's option, the
attorneys' fees and costs incurred in connection with said
litigation by Landlord.
D. TENANT'S TIME TO XXX. To the extent permitted by law, any claim,
demand, right or defense by Tenant that arises out of this Lease or
the negotiations that preceded this Lease shall be barred unless
Tenant commences an action thereon, or interposes a defense by
reason thereof, within six (6) months after the date of the
inaction, omission, event, or action that gave rise to such claim,
demand, right, or defense. Tenant acknowledges and understands,
after having consulted with its legal counsel, that the purpose of
this Section is to shorten the period within which Tenant would
otherwise have to raise such claims, demands, rights, or defenses
under applicable laws.
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ARTICLE IX - LOSS, DESTRUCTION OR TAKING OF PREMISES OR SHOPPING CENTER
9.1 FIRE OR OTHER CASUALTY
Tenant shall give to Landlord prompt written notice of any accident, fire
or damage occurring on or to the Premises. Thereupon, Landlord's
obligation concerning the repair or reconstruction of the Premises will be
as follows:
A. PARTIAL DESTRUCTION OF PREMISES. If the Premises shall be damaged by
the elements or other casualty or by fire, not due to Tenant's
negligence, but are not thereby rendered untenantable in whole or in
part, Landlord shall promptly after receipt of insurance proceeds
cause such damage to be repaired, and the Rent shall not be abated.
If by reason of any such occurrence, the Premises shall be rendered
untenantable only in part, Landlord shall promptly after receipt of
insurance proceeds cause the damage to be repaired and the Minimum
Rent meanwhile shall be abated proportionately as to the portion of
the Premises and only for the time such Premises are rendered
untenantable.
B. SUBSTANTIAL DESTRUCTION OF PREMISES. If the Premises shall be
rendered wholly untenantable by reason of such occurrence (i.e.,
destruction of 25% or more), the Landlord shall promptly after
receipt of insurance proceeds cause such damage to be repaired, and
the Rent shall meanwhile be abated in whole, provided, however, that
Landlord shall have the right, to be exercised by notice in writing
delivered to Tenant within sixty (60) days from and after said
occurrence, to elect not to reconstruct the destroyed Premises, and
in such event this Lease and the tenancy hereby created shall cease
as of the date of the said occurrence, the Rent to be adjusted as of
such date.
C. DESTRUCTION OF SHOPPING CENTER. If the Shopping Center shall be
damaged by the elements or other casualty or by fire, not due to
Tenant's negligence and which damage does not render the Premises
untenantable in whole or in part, Landlord shall promptly after
receipt of insurance proceeds cause such damage to be repaired and
the Rent shall not be abated. If the Shopping Center or any premises
located thereon suffers damage or destruction of a substantial
nature (i.e., destruction of 10% or more of the Shopping Center),
which damage or destruction does not render the Premises
untenantable in whole or in part. Landlord shall after receipt of
insurance proceeds cause such damage to be repaired and the Rent
shall not be abated; provided, however, that Landlord shall have the
right to be exercised by notice in writing to be delivered to Tenant
within sixty (60) days from and after such occurrence to elect not
to reconstruct the destroyed portion of the Shopping Center, and in
such event this Lease and the tenancy hereby created shall cease as
of the date of the occurrence, the Rent to be adjusted as of such
date.
9.2 CONDEMNATION
A. AWARD. If title to all or any portion of the Premises is taken by a
public or quasi-public authority under any statute or by right of
eminent domain of any governmental body, whether such loss or damage
results from condemnation of part or all of the Premises or any
portion of the parking area or service entrances and exits. Tenant
shall not be entitled to participate or receive any part of the
damages or award except where said award shall provide for moving or
other reimbursable expenses for the Tenant under applicable statute
in which event the latter sum shall be received by Tenant, and
except that portion of any award allocated to the taking of Tenant's
trade fixtures, equipment and personal property, or to a loss of
business by Tenant. None of the awards or payments to Landlord shall
be subject to any diminution or apportionment on behalf of Tenant or
otherwise.
B. SUBSTANTIAL OR MATERIAL TAKING OF PREMISES. Should any power of
eminent domain be exercised after Tenant is in possession, such
exercise shall not void or impair this Lease unless the amount of
the Premises so taken is such as to substantially and materially
impair the usefulness of the Premises for the purpose for which the
same are hereby demised, in which event either party may cancel this
Lease by notice to the other within sixty (60) days after possession
is taken, and the Rent herein provided shall xxxxx as of the date
possession is taken by the condemning authority.
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C. PARTIAL TAKING OF PREMISES. If a portion of the Premises shall be
taken as herein provided for public improvements or otherwise under
the exercise of the right of eminent domain and the Premises shall
continue to be reasonably suitable for the use which is herein
authorized, then the Rent herein provided shall be reduced from the
date of such taking in direct proportion to the reduction in
usefulness of the Premises and the Lease shall continue in full
force and effect.
D. If a portion of the Shopping Center shall be taken as herein
provided for public improvements or otherwise under the exercise of
the right of eminent domain, such exercise shall not void or impair
the Lease unless the amount of the Shopping Center so taken, in
Landlord's sole and absolute discretion, is such to substantially or
materially impair the usefulness of the Shopping Center, in which
event Landlord may cancel this Lease by notice to Tenant within
sixty (60) days after possession is taken, the Rent to be adjusted
as of such date.
ARTICLE X - ASSIGNMENT, SUBLETTING, MORTGAGING AND SUBORDINATION
10.1 ASSIGNMENT AND SUBLETTING BY TENANT
A. Except as may be provided in Section 11.4 with respect to assignment
of this Lease following Tenant's bankruptcy, Tenant will not assign
this Lease, in whole or in part, nor sublet all or any part of the
Premises, nor license concessions or lease departments therein, nor
pledge or encumber by mortgage or other instruments any interest in
this Lease (each individually and collectively referred to in this
Section as a "Transfer") without first obtaining the consent of
Landlord, which consent Landlord may withhold in its sole and
absolute discretion. This prohibition includes, without limitation,
any subletting or assignment which would otherwise occur by
operation of law, merger, consolidation, reorganization, transfer or
other change of Tenant's corporate, partnership or proprietary
structure. Any Transfer to or by a receiver or trustee in any
federal or state bankruptcy, insolvency, or similar proceeding shall
be subject to, and in accordance with, the provisions of Section
11.4, if applicable. Consent by Landlord to any transfer shall not
constitute a waiver of the requirement for such consent to any
subsequent Transfer.
B. Subject to the provisions of Section 11.4 respecting assignment of
this Lease following Tenant's bankruptcy and assumption of this
Lease by Tenant or its trustee, if applicable, it is expressly
understood and agreed that Landlord may, in its sole and absolute
discretion, withhold its consent to any Transfer of this Lease or of
all or any part of the Premises. The parties recognize that this
Lease and the Premises are unique, and that this Lease and the
Premises derive value from the remainder of the Shopping Center area
as a whole, and that the nature and character of the operations
within and management of the Premises are important to the success
of Landlord's business and the Shopping Center area. Accordingly,
and without limiting the generality of the foregoing, Landlord may
condition its consent to any Transfer upon satisfaction of all or
any of the following conditions:
(1) the net assets of the assignee, licensee, sublessee or other
transferee or permittee (collectively, "Transferee") immediately
prior to the transfer shall not be less than the greater of the net
assets of Tenant immediately prior to the transfer or the net assets
of Tenant at the time of the signing of this Lease;
(2) such Transfer shall not adversely affect the quality and type of
business operation which Tenant has conducted theretofore;
(3) such Transferee shall possess qualifications for the Tenant business
substantially equivalent to those of Tenant and shall have
demonstrated recognized experience in successfully operating such a
business, including, without limitation, experience in successfully
operating a similar quality business in first class shopping
centers;
(4) such Transferee shall continue to operate the business conducted in
the Premises under the same Tenant trade name, in the same manner as
Tenant and pursuant to all of the provisions of this Lease;
(5) such Transferee shall assume in writing, in a form acceptable to
Landlord, all of Tenant's obligations hereunder and Tenant shall
provide Landlord with a copy of such assumption/transfer document;
(6) should the Transferee propose to amend the Tenant use requirements
as are set forth in Article VII of this Lease, such new use shall
not conflict with the primary use of any other tenant or with any
restrictive covenants encumbering the Shopping Center or exclusive
use provisions of other leases in effect at the time of the
assignment;
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(7) Tenant shall pay to Landlord a transfer fee of Five Hundred and
No/100 Dollars ($500.00) ("Transfer Fee") prior to the effective
date of the transfer in order to reimburse Landlord for all of its
internal costs and expenses incurred with respect to the transfer,
including, without limitation, costs incurred in connection with the
review of financial materials, meetings with representatives of
transferor and/or Transferee and preparation, review, approval and
execution of the required transfer documentation, and, in addition,
Tenant shall reimburse Landlord for any out-of-pocket costs and
expenses incurred with respect to such Transfer;
(8) as of the effective date of the Transfer and continuing throughout
the remainder of the Term, the Minimum Rent shall be the greater of
(A) the Minimum Rent set forth in the Abstract of Lease hereof, or
(B) the sum of all Minimum Rent payable by Tenant during the twelve
(12) calendar months preceding the Transfer;
(9) Tenant to which the Premises were initially leased shall continue to
remain liable under this Lease for the performance of all terms,
including, but not limited to, payment of Rent due under this Lease;
(10) Tenant's guarantor, if any, shall continue to remain liable under
the terms of the Guaranty of this Lease and, if Landlord deems it
necessary, such guarantor shall execute such documents necessary to
insure the continuation of its guaranty;
(11) Landlord shall receive upon execution of its consent the full
unamortized amount of any construction or other allowances given to
the original Tenant under this Lease, any due but unpaid Rent, and
an amount equal to fifteen percent (15%) of any and all
consideration paid or agreed to be paid directly or indirectly, to
Tenant for such transfer or for the sale of Tenant's business in
connection with which any such Transfer is made; and
(12) each of Landlord's Mortgagees shall have consented in writing to
such Transfer.
The acceptance of any Rent by Landlord from any alleged assignee or
subtenant shall not constitute approval of the assignment or sublease of
this Lease by the Landlord, and the consent by Landlord to one assignment
or subletting of the Premises shall not constitute a waiver of Landlord's
rights hereunder.
Tenant shall pay to Landlord the Transfer Fee of $500.00 for such written
consent. In the event of any such assignment, subletting, licensing or
granting of a concession made with the prior written consent of the
Landlord as aforesaid, Tenant will nevertheless remain primarily liable
for the performance of all the terms, conditions, and covenants of this
Lease. Any Transfer shall be by agreement in a form and content acceptable
to Landlord, and shall specify and require that each Transferee of this
Lease by acceptance of any Transfer shall assume, be bound by, and be
obligated to perform the terms and conditions of its sublessor and
assignor under this Lease. A condition of such Transfer is the agreement
of the parties that Landlord shall receive the full and complete Rent
payment of the Transferee even though such payments may be in excess of
the original Rent between Landlord and Tenant. It is the intent and
understanding of the parties to this Lease that Tenant shall not receive
any monetary benefit, in excess of the actual Rent obligation of Tenant,
as agreed between the original Tenant and Landlord, through a Transfer to
a third party. In the event of default of Tenant, Landlord at Landlord's
sole option may succeed to the position of Tenant as to any subtenant or
licensee of Tenant.
10.2 ASSIGNMENT AND MORTGAGING BY LANDLORD
A. TRANSFER BY LANDLORD. The owner of the Premises shall only remain
liable for the Landlord's obligations pursuant to the terms and
limitations set forth in this Lease during its ownership of the
Premises. So long as all sums held on Tenant's behalf in trust or
escrow by Landlord are paid over to any purchaser of the Premises,
Landlord and the owner of the Premises shall be and are hereby
relieved of all covenants and obligations of Landlord hereunder
after the date of sale of said Premises, and it shall be construed
without further agreement between the parties that the purchaser has
assumed and agreed to carry out any and all covenants and
obligations of Landlord hereunder from the date of such sale.
B. SUBORDINATION. This Lease is subordinate to any and all leases,
mortgages or deeds of trust hereinafter placed upon the Shopping
Center, now or in the future, or any part thereof, and to all future
modifications, consolidations, replacements, extensions and renewals
of, and all amendments and supplements to said leases, mortgages or
deeds of trust. Notwithstanding such subordination, as aforesaid,
this Lease, except as otherwise hereinafter provided including, but
not limited to, an event of default by Tenant, shall not terminate
or be divested by foreclosure or other default proceedings under
said leases, mortgages, deeds of trust, or obligations secured
thereby, and Tenant shall attorn to and recognize the Landlord,
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Mortgagee, Trustee, Beneficiary or the Purchaser at the foreclosure sale
in the event of such foreclosure or other default proceeding, as Tenant's
Landlord for the balance of the Term of this Lease, subject to all of the
terms and provisions hereof. The provisions of this paragraph shall be
self-operative, but Tenant acknowledges and agrees that as a material
consideration inducing Landlord to enter into this Lease, Tenant shall
acknowledge same by executing and delivering to Landlord on demand at any
time or times, any and all instruments in order to subordinate this Lease
and Tenant's rights hereunder, as aforesaid.
C. ESTOPPEL AND SUBORDINATION DOCUMENTS. Tenant acknowledges and agrees
that as a material consideration inducing Landlord to enter into
this Lease, Tenant agrees to execute, acknowledge and deliver any
and all documents required to effectuate the provisions of this
Section within seven (7) days after request thereof by Landlord. In
the event that upon any sale, assignment, lease, mortgage or
hypothecation of the Premises and/or the land thereunder by
Landlord, a statement shall be required by Tenant, Tenant agrees to
deliver in recordable form an Estoppel Certificate (if such be the
case) that this Lease is in full force and effect and there are no
defenses or offsets or Landlord defaults thereto, or stating those
claimed by Tenant, the dates to which Rent or other sums have been
paid in advance, and any other such certifications of Lease terms as
may reasonably be required and such specific subordination agreement
on Lender's form as may reasonably be required by Lender, it being
intended that any such statements delivered pursuant to this Section
may be relied upon by any prospective purchaser, mortgagee, assignee
or beneficiary. Tenant hereby giants Landlord a power of attorney to
execute any document in the name of Tenant in the event Tenant fails
to execute, acknowledge and deliver any document required to
effectuate the provisions of this Section within seven (7) days
after request therefor by Landlord.
D. FINANCIAL STATEMENTS AND SALES FIGURES. Tenant acknowledges and
agrees that as a material consideration inducing Landlord to enter
into this Lease, Tenant will, with a request from Landlord, provide
a copy of Tenant's latest available financial statements and
year-to-date sales figures for the purpose of showing such
statements in confidence to potential lenders or purchasers of the
center. Tenant agrees to provide such statements within ten (10)
days of Landlord's reasonable request. In addition, within sixty
(60) days after Tenant's year end, Tenant will provide Landlord with
monthly sales figures for the prior year.
ARTICLE XI - DEFAULT AND REMEDIES FOR DEFAULT
11.1 TENANT EVENTS OF DEFAULT
The occurrence of any of the following shall constitute an event of
default by Tenant hereunder:
(1) The filing of a petition by or against Tenant for adjudication as a
bankrupt or insolvent, or for its reorganization or for the
appointment of a receiver or trustee of Tenant's property; an
assignment by Tenant for the benefit of creditors or the taking of
possession of the property of Tenant by any governmental officer or
agency pursuant to statutory authority for the dissolution or
liquidation of Tenant.
(2) Failure of Tenant to pay when due any installment of Rent hereunder
or any other sum herein required to be paid by Tenant, and the
continuance of such nonpayment for five (5) days.
(3) Abandonment or misuse of the Premises by Tenant.
(4) Tenant's failure to perform any other covenant or condition of this
Lease within twenty (20) days after written notice and demand from
Landlord.
11.2 REMEDIES OF LANDLORD FOR DEFAULT BY TENANT
Upon the occurrence of an event of default, Landlord shall have the right,
then or at anytime thereafter, and while such event of default shall
continue, and in addition to and not in lieu of any other remedies, relief
or rights available to Landlord at law or equity or contained in this
Lease, to do any of the following:
(1) Landlord by itself or its authorized agents may cure the default and
charge Tenant for the costs of such cure, which charge shall be due
and payable as Rent under this Lease immediately upon written notice
to Tenant.
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(2) Landlord may enforce every provision of the Lease in accordance with
its terms including, but not limited to enforcement of the payment
of Rent provisions.
(3) Landlord may look to the following security as provided in Article V
above:
(a) Landlord may exercise its general lien on the leasehold estate
and all property in the Premises;
(b) Landlord may exercise its rights as secured party under its
Chattel Security Agreement with Tenant;
(c) Landlord may apply all or part of the Security Deposit to the
default of Tenant as provided in Section 5.1; or
(d) Landlord may exercise its rights under the Guaranty.
(4) Landlord shall have the right to reenter the Premises to assume and
take possession of the whole or any part thereof, and to remove all
persons or personal property by direct or summary action, or in a
different type of suit or proceeding, by force or otherwise, without
being deemed guilty of trespass or other actionable wrong by reason
thereof, and without being liable for the damages therefore or in
connection therewith, and, after demand made therefor, Tenant or
anyone in possession claiming under Tenant shall be deemed guilty of
unlawful detainer and subject to such summary judgment or other
action as may be provided by law. Additionally, Landlord may relet
the Premises as the agent for and in the name of the Tenant, at any
rental readily acceptable, applying the proceeds first to reimburse
Landlord for all costs of enforcement of this Lease, second, to
costs to re-rent the Premises including, but not limited to, tenant
improvement costs and leasing commissions, third, to the payment of
such Rent as same comes due, and toward the fulfillment of the other
covenants and agreements of Tenant herein contained, and the
balance, if any, remaining upon expiration of the Term shall be paid
to Tenant, and the Tenant hereby agrees that if Landlord shall
recover or take possession of said Premises as aforesaid, and be
unable to relet and rent the same so as to realize a sum equal to
the Minimum Rent and Additional Rent hereby provided, Tenant shall
pay to Landlord any loss or difference of Minimum Rent and
Additional Rent for the remainder of the Term. Landlord may, but is
not required to, assign this Lease to Guarantor, if any, in the name
of and on behalf of Tenant or may enter into a new lease with
Guarantor on the same terms as this Lease or upon different terms.
Tenant acknowledges that Landlord has been granted Tenant's power of
attorney coupled with an interest in order to effectuate Landlord's
rights hereunder in the event that Tenant fails or refuses to do so
within five (5) days of notice from Landlord.
(5) Landlord, irrespective of the date on which its right of reentry
shall have accrued or be exercised, shall have the right, whether
for rent or possession or otherwise, to forfeit this Lease and
terminate the state of tenancy hereby created. If permitted by the
laws of the state where the Premises are located, Landlord is under
no affirmative duty to maximize the rent collected from any
replacement tenant or otherwise mitigate Landlord's damages.
This right to terminate is exercisable by a written notice to Tenant,
which written notice may be part of a notice of default previously
delivered to Tenant, and, as such, may be conditioned upon Tenant's
failure to cure the default and the event of default. The termination may
be made effective as of the event of default, or thereafter, and, if not
otherwise specified, will be deemed to be effective immediately. Upon such
termination and forfeiture, Landlord shall be entitled to and may take
immediate possession of the Premises, any other notice or demand being
hereby waived. Such termination does not, however, release Tenant from
liability for Rent then overdue or remaining under the Lease but shall, if
permitted by the laws of the state where the Premises are located, operate
to accelerate the entire balance of the Term Rent and additional charges
due over the entire lease Term, which shall become immediately due and
payable by Tenant, along with all overdue Rent and charges.
(6) Tenant shall reimburse and pay to Landlord all costs and expenses of
Landlord in connection with Landlord's enforcement of its rights and
remedies hereunder, including court costs and reasonable attorneys'
fees.
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11.3 NON-WAIVER OF REMEDIES
A. It is expressly agreed that neither the taking of possession of the
Premises nor the institution of any proceedings by way of unlawful
detainer, ejectment, dispossessory, eviction, quiet title, or
otherwise, to secure possession of said Premises, nor the reentry by
Landlord with or without the institution of such proceedings, nor
the issuance of a writ of possession, nor the rerenting or
subletting of said Premises, shall operate to relieve Tenant of its
obligations to pay Rent and other amounts due hereunder, or operate
to terminate this Lease in whole or in part, nor of itself
constitute an exercise of Landlord's option to do so, but only by
the giving of the written notice specifically specifying termination
shall such termination be effected.
B. In the event Tenant breaches this Lease, or any covenant, term or
condition hereunder, or abandons the Premises, this Lease shall
continue in force and effect, and Landlord may continue to enforce
all rights and remedies of Landlord contained in the Lease
including, without limitation, the right to recover Rent as it
becomes due hereunder. Acts of maintenance or preservation or
efforts to relet the Premises, or the appointment of a receiver upon
the initiation of the Landlord to protect the Landlord's interest
under this Lease, shall not constitute a termination of the Lease.
C. Waiver by Landlord of any default, breach or failure of Tenant under
this Lease shall not be construed as a waiver of any subsequent or
different default, breach or failure. In case of a breach by Tenant
of any of the covenants or undertakings of Tenant, Landlord
nevertheless may accept from Tenant any payments hereunder without
in any way waiving Landlord's right to exercise the remedies
hereinbefore provided for by reason of any other breach or lapse
which was in existence at the time such payment or payments were
accepted by Landlord.
D. It is expressly understood that the enumeration herein of express
rights, options and privileges shall not limit Landlord thereto nor
deprive Landlord of any other remedy or action or cause of action by
reason of any default of Tenant, including the right to recover from
Tenant any deficiency upon re-renting.
E. The specific remedies to which Landlord may resort under the terms
of this Lease are cumulative and are not intended to be exclusive of
any other remedies or means of redress to which they may be lawfully
entitled in case of any breach or threatened breach by either of
them or of any provisions of this Lease.
11.4 REMEDIES IN EVENT OF BANKRUPTCY OR OTHER PROCEEDING
A. Anything contained herein to the contrary notwithstanding, if
termination of this Lease shall be stayed by order of any court
having jurisdiction over any proceeding described in paragraph 1 of
Section 11.1, or by federal or state statute, then, following the
expiration of any such stay, or if Tenant or Tenant as
debtor-in-possession or the trustee appointed in any such proceeding
(being collectively referred to as "Tenant" only for the purposes of
this Section 11.4.) shall fail to assume Tenant's obligations under
this Lease within the period prescribed therefor by law or within
fifteen (15) days after entry of the order for relief or as may be
allowed by the court, or if Tenant shall fail to provide adequate
protection of Landlord's right, title and interest in and to the
Premises or adequate assurance of the complete and continuous future
performance of Tenant's obligations under this Lease, Landlord, to
the extent permitted by law or by leave of the court having
jurisdiction over such proceeding, shall have the right, at its
election, to terminate this Lease on fifteen (15) days' notice to
Tenant and upon the expiration of said fifteen (15) day period this
Lease shall cease and expire as aforesaid and Tenant shall
immediately quit and surrender the Premises as aforesaid. Upon the
termination of this Lease as provided above, Landlord, without
notice, may reenter and repossess the Premises using such force for
that purpose as may be necessary without being liable to indictment,
prosecution or damages therefor and may dispossess Tenant by summary
proceedings or otherwise.
B. For the purposes of the preceding paragraph A, adequate protection
of Landlord's right, title and interest in and to the Premises, and
adequate assurance of the complete and continuous future performance
of Tenant's obligations under this Lease, shall include, without
limitation, the following requirements:
(1) that Tenant comply with all of its obligations under this Lease;
(2) that Tenant pay to Landlord, on the first day of each month
occurring subsequent to the entry of such order, or the effective
date of such stay, a sum equal to the amount by which the Premises
diminished in value during the immediately preceding monthly period,
but, in no event, an amount which is less than the Rent payable for
such monthly period;
(3) that Tenant continue to use the Premises in the manner originally
required by this Lease;
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(4) that Landlord be permitted to supervise the performance of Tenant's
obligations under this Lease;
(5) that Tenant pay to Landlord within fifteen (15) days after entry of such
Order or the effective date of such stay, as partial adequate protection
against future diminution of value of the Premises and adequate assurance
of the complete and continuous future performance of Tenant's obligations
under this Lease, an additional security deposit in an amount acceptable
to Landlord;
(6) that Tenant has and will continue to have unencumbered assets after the
payment of all secured obligations and administrative expenses to assure
Landlord that sufficient funds will be available to fulfill the
obligations of Tenant under this Lease;
(7) that if Tenant assumes this Lease and proposes to assign the same
(pursuant to Title 11 U.S.C. ss.365, or as the same may be amended) to any
person who shall have made a bona fide offer to accept an assignment of
this Lease on terms acceptable to such court having competent jurisdiction
over Tenant's estate, then notice of such proposed assignment, setting
forth (x) the name and address of such person, (y) all of the terms and
conditions of such offer, and (z) the adequate assurance to be provided
Landlord to assure such person's future performance under this Lease,
including, without limitation, the assurances referred to in Title 11
U.S.C. ss.365(b)(3), as it may be amended, shall be given to Landlord by
Tenant no later than fifteen (15) days after receipt by Tenant of such
offer, but in any event no later than thirty (30) days prior to the date
that Tenant shall make application to such court for authority and
approval to enter into such assignment and assumption, and Landlord shall
thereupon have the prior right and option to be exercised by notice to
Tenant given at any time prior to the effective date of such proposed
assignment, to accept, or to cause Landlord's designee to accept, an
assignment of this lease upon the same terms and conditions and for the
same consideration, if any, as the bona fide offer made by such person
less any brokerage commission which may be payable out of the
consideration to be paid by such person for the assignment of this Lease;
and
(8) that if Tenant assumes this Lease and proposes to assign the same, and
Landlord does not exercise its option pursuant to paragraph (7) of this
Section 11.4, Tenant hereby agrees that:
(a) such assignee shall have a net worth not less than the net worth of
Tenant as of the Commencement Date, or such Tenant's obligations
under this Lease shall be unconditionally guaranteed by a person
having a net worth equal to Tenant's net worth as of the
Commencement Date;
(b) such assignee shall not use the Premises except subject to all the
restrictions contained in this Lease;
(c) such assignee shall assume in writing all of the terms, covenants
and conditions of this Lease including, without limitation, all of
such terms, covenants and conditions respecting the Permitted Use
and payment of Rent, and such assignee shall provide Landlord with
assurances satisfactory to Landlord that it has the experience in
operating stores having the same or substantially similar uses as
the Permitted Use, in first class shopping centers, sufficient to
enable it so to comply with the terms, covenants and conditions of
this Lease and successfully operate the Premises for the Permitted
Use;
(d) such assignee shall indemnify Landlord against, and pay to Landlord
the amount of, any payments which Landlord may be obligated to make
to any Mortgagee by virtue of such assignment;
(e) such assignee shall pay to Landlord an amount equal to the
unamortized portion of any construction allowance made to Tenant;
and
(f) if such assignee makes any payment to Tenant, or for Tenant's
account, for the right to assume this Lease (including, without
limitation, any lump sum payment, installment payment or payment in
the nature of Rent over and above the Rent payable under this
Lease), Tenant shall pay over to Landlord one half of any such
payment, less any amount paid to Landlord pursuant to Section 8(e)
above on account of any construction allowance.
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11.5 DEFAULTS BY LANDLORD
If Landlord fails to perform any of Landlord's obligations under this
Lease, which failure continues for more than thirty (30) days after
Tenant's delivery of written notice to Landlord specifying such failure,
or if such failure is of a nature to require more than thirty (30) days
for remedy and continues beyond the time reasonably necessary to cure (and
Landlord has not undertaken procedures to cure the failure within such
thirty (30) day period and diligently pursued such efforts to complete
such cure), Tenant may, in addition to any other remedy available at law
or in equity, after a second written notice to Landlord and Landlord's
failure to cure within ten (10) business days after receipt of such second
written notice, at its option, incur any expense necessary to perform the
obligation of Landlord specified in such notice and invoice Landlord for
the cost thereof.
ARTICLE XII - GENERAL PROVISIONS
12.1 BROKERS
A. TENANT'S BROKERS. Except for Xxxxx Real Estate, Ltd., and its agent
Xxxxx Xxxxx. Tenant warrants that it has employed no broker who has
or may have a legitimate claim to a commission arising of Tenant's
acceptance of this Lease. Any obligation or potential obligation for
commission to any brokers who have a claim arising out of the
actions of Tenant are the sole obligation of Tenant. Should a claim
be made upon Landlord or the Premises by any brokers who in
Landlord's discretion Landlord determines to have legitimate claim
for commission arising out of this transaction, whether such claim
is ultimately upheld or not, Landlord may, but shall not be
obligated to, discharge the claim either by paying the amount
claimed to be due or by any other means. Tenant shall reimburse and
pay to Landlord on demand any amount so paid by Landlord and all
costs and expenses, including reasonable attorneys' fees incurred by
Landlord in connection therewith, together with interest thereon at
the rate of eighteen percent (18%) per annum from the respective
date of Landlord's notice to Tenant of the making of the payment or
of the incurring of the cost and expense, including such attorneys'
fees.
B. LANDLORD'S BROKERS. Any commission or other compensation due Xxxxx
Real Estate, Ltd.. and Xxxxx Xxxxx, and all brokers employed by
Landlord shall be the sole responsibility of Landlord.
12.2 NO PARTNERSHIP
Notwithstanding any other express or implied provision of this Lease, it
is understood that Landlord does not in any way claim to be or propose a
partnership or joint venture with Tenant in the conduct of Tenant's
business.
12.3 SUCCESSORS AND ASSIGNS
All rights, obligations and liabilities herein given to, or imposed upon,
the respective parties hereto shall extend to and bind the several and
respective heirs, executors, administrators, successors, sublessees and
assigns of said parties, subject to the provisions of Article X, provided,
however, that the liability of Landlord hereunder and any successor in
interest and title to the Premises shall be limited to his or its interest
in the Shopping Center, and no other assets of the Landlord other than his
or its interest in the Shopping Center shall be affected by reason of any
liability which said Landlord or successor in interest may have under this
Lease. If there shall be more than one Tenant, they shall all be bound
jointly and severally by the terms, covenants and agreements herein and
the word "Tenant" shall be deemed and taken to mean each and every person
or party mentioned as a Tenant herein, be the same one or more; and if
there shall be more than one Tenant, any notice required or permitted by
the terms of this Lease may be given by or to any one thereof and shall
have the same force and effect as if given by or to all thereof.
12.4 NOTICES
Wherever in this Lease it shall be required or permitted that notice or
demand be given or served by either party to this Lease to or on the
other, such notice or demand shall not be deemed to have been duly given
or served unless made in writing and either personally delivered or
forwarded by Certified Mail, Return Receipt Requested, postage prepaid,
commercial delivery service or personal delivery to the address for each
party provided in the Abstract of Lease. Such addresses may be changed
from time to time by either party by serving notices as above provided.
While Tenant is in possession of the Premises, notices to the Tenant may
also be delivered or forwarded by Certified Mail to the Premises. Notice
shall be deemed given when delivered, if given by personal delivery,
otherwise one (1) business day following delivery to an overnight
commercial delivery service or three (3) days following deposit in the
United States mail.
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12.5 SCOPE AND INTERPRETATION OF THIS AGREEMENT
A. ENTIRE AGREEMENT. This Lease shall be considered to be the only
agreement between the parties hereto pertaining to the Premises. It
is understood that there are no oral agreements between the parties
hereto affecting this Lease, and this Lease supersedes and cancels
any and all previous negotiations, arrangements, brochures, letters
of intent, agreements and understandings, written or oral, if any,
between the parties hereto or displayed by Landlord to Tenant with
respect to the subject matter thereof, and none shall be used to
interpret or construe this Lease. All negotiations and oral
agreements acceptable to Landlord and Tenant have been merged into
and are included in this Lease, It is further agreed by and between
the parties hereto that there shall be no modification or amendment
to this Lease, except as may be executed in writing between the
parties hereto. Tenant agrees not to cancel its Lease, reduce,
xxxxx, or offset Rent, or pursue any other remedies under this
Lease, or at law or equity, with respect to Landlord, for any
violation breach or default of this Lease by virtue of any act or
omission on, or with respect to, property not owned by Landlord or
for any other reason not within the reasonable control of Landlord.
There are no other representations or warranties between Landlord
and Tenant and all reliance with respect to representations is
solely upon the representation and agreements contained in this
Lease.
B. ARTICLE HEADINGS AND CAPTIONS. The headings or captions of Articles
in this Lease are for convenience and reference only and they in no
way define, limit, or describe the scope or intent of this Lease or
the provisions of such Articles.
C. GENDER AND INTERPRETATION OF TERMS AND PROVISIONS. As used in this
Lease and whenever required by the context thereof, each number,
both singular or plural, shall include all numbers, and each gender
shall include all genders. Landlord and Tenant, as used in this
Lease, or in any other instrument referred to in or made a part of
this Lease, shall likewise include both the singular and the plural,
a corporation, limited liability company, partnership, individual or
person acting in any fiduciary capacity as executor, administrator,
trustee, or in any other representative capacity. All covenants
herein contained on the part of Tenant shall be joint and several.
D. TIME OF ESSENCE. Time is hereby expressly declared to be of the
essence of this Lease and of each and every covenant, term,
condition and provision hereof.
E. IMPARTIAL CONSTRUCTION. The language in all parts of this Lease
shall be in all cases construed as a whole according to its fair
meaning and not strictly for nor against either Landlord or Tenant.
F. GOVERNING LAW. The laws of the State in which the Premises are
located shall govern the validity and enforceability of this Lease.
Jurisdiction and venue shall be deemed valid and appropriate at
Landlord's option in either the county and state where the Shopping
Center is located or in Xxxx or DuPage County, Illinois.
G. PARTIAL INVALIDITY. If any term, covenant or condition of this Lease
or the application thereof to any person or circumstance shall to
any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of such term, covenant or condition to
persons or circumstances other than those as 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.
H. AMENDMENT. Oral agreements in conflict with any of the terms of this
Lease shall be without force and effect. All amendments to be in
writing executed by the parties or their respective successors in
interest.
I. TENANT'S CONFLICTS. Tenant hereby covenants, warrants and represents
that by executing this Lease and by the operation of the Premises
under this Lease, it is not violating, has not violated and will not
be violating any restrictive covenant or agreement contained in any
other lease or contract affecting Tenant or any affiliate, associate
or any other person or entity with whom or with which Tenant is
related or connected financially or otherwise. Tenant hereby
covenants and agrees to indemnify, defend and save harmless
Landlord, any future owner of the fee or any part thereof, and any
mortgagee thereof against and from all liabilities, obligations,
damages, penalties, claims, costs and expenses, including attorneys'
fees, paid, suffered or incurred by them or any of them as a result
of any breach of the foregoing covenant. Tenant's liability under
this covenant extends to the acts and omissions of any subtenant,
and any agent, servant, employee or licensee of any subtenant of
Tenant.
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J. LANDLORD, OWNER OR OWNER'S BENEFICIARY OR BENEFICIARIES THEREOF.
Wherever in this Lease Landlord is granted a right of consent or
approval, a right of inspection, a right to add improvements to the
Shopping Center, a right to designate repairs, maintenance or
improvements required to be made by Tenant or changes in any plans
submitted by Tenant or any other act which involved the exercise of
discretion on the part of the Landlord hereunder, such right or
exercise of discretion may be exercised by Landlord, owner or
owner's beneficiary or beneficiaries thereof. Any obligation set
forth in this Lease of the Landlord, or any obligation of Tenant
which Landlord is given the right to perform on Tenant's behalf,
shall be conclusively deemed to have been performed by owner's
beneficiary or beneficiaries thereof. Any obligation of Tenant
contained in this Lease to indemnify, defend or hold Landlord
harmless (or Landlord and any other party), or to maintain and pay
for insurance for the benefit of Landlord (or Landlord and any other
party), or to waive any claim against Landlord (or Landlord and any
other party) is hereby extended so that such obligations shall run
in favor of Landlord, owner and owner's beneficiary or beneficiaries
thereof. Wherever in this Lease it is acknowledged or stated that
Landlord has made no representation or warranties or promises with
respect to any matter, such provisions shall be deemed to
acknowledge or state that neither Landlord nor owner nor owner's
beneficiary or beneficiaries thereof, nor employee of Landlord has
made such representations or warranties or promises. All rights to
enforce any provision of this Lease on the part of Landlord or any
rights to exercise any remedies of Landlord, either specifically
provided for herein or at law or equity, may be exercised by
Landlord, owner or owner's beneficiary or beneficiaries thereof, in
their own name, alone or in conjunction with Landlord or any of the
foregoing parties.
K. EXECUTION OF LEASE BY LANDLORD. The submission of this document for
examination and negotiation does not constitute an offer to lease,
or a reservation of, or option for, the Premises and this document
becomes effective and binding only upon the execution and delivery
hereby by Landlord and Tenant. The execution of this Lease by Tenant
shall be deemed an offer by Tenant to lease the Premises from
Landlord upon the terms and conditions contained in the Lease, which
offer may be accepted by Landlord only by the execution of this
Lease by Landlord. All negotiations, considerations, representations
and understandings between Landlord and Tenant are incorporated
herein and may be modified or altered only by agreement in writing
between Landlord and Tenant, and no act or omission of any employee
or agent of Landlord or of Landlord's broker shall alter, change or
modify any of the provisions hereof.
L. JURY WAIVER. LANDLORD AND TENANT WAIVE THEIR RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE
PARTIES HERETO AGAINST THE OTHER, OR WITH RESPECT TO ANY ISSUE OR
DEFENSE RAISED THEREIN, INCLUDING THE RIGHT TO AN ADVISORY JURY
(EXCEPT FOR PERSONAL INJURY AND PROPERTY DAMAGE), ON ANY MATTERS
WHATSOEVER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS LEASE,
THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE AND OCCUPANCY
OF THE PREMISES, INCLUDING SUMMARY PROCEEDING AND POSSESSION
ACTIONS, ANY EMERGENCY STATUTORY OR OTHER STATUTORY REMEDY.
M. RENTS FROM REAL PROPERTY. Landlord and Tenant hereby agree that it
is their intent that all Minimum Rent and all Additional Rent and
all other charges payable to the Landlord under this lease
(hereinafter individually and collectively referred to as "Rent")
shall qualify as "rents from real property" within the meaning of
Section 856(d) of the Internal Revenue Code of 1986, as amended,
(the "Code") and the Department of the U.S. Treasury Regulations
promulgated thereunder (the "Regulations"). Should the Code or the
Regulations, or interpretations thereof by the Internal Revenue
Service contained in revenue rulings or other similar public
pronouncements, be changed so that any Rent no longer so qualifies
as "rent from real property" for purposes of Section 856(d) of the
Code and Regulations, or any successor provision thereto, then the
parties agree to execute such further instrument as may reasonably
be required by the Landlord in order to give effect to the foregoing
provisions of this Section.
N. INDEPENDENT COVENANTS. The covenants of Tenant to pay Rent and any
and all other amounts payable by Tenant pursuant to the terms of
this Lease are independent covenants, and Tenant shall not have the
right to hold back, offset or fail to pay any such amounts for
default by Landlord or any other reason whatsoever.
O. OFAC CERTIFICATION. Tenant certifies that (i) it is not acting,
directly or indirectly, for or on behalf of any person, group,
entity or nation named by any Executive Order or the United States
Treasury Department as a terrorist, "Specially Designated national
and Blocked Person", or other banned or blocked person, entity,
nation or transaction pursuant to any law, order, rule or regulation
that is enforced or administered
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by the Office of Foreign Assets Control; and (ii) it is not engaged
in this transaction, directly or indirectly on behalf of, or
instigating or facilitating this transaction, directly or indirectly
on behalf of, any such person, group, entity or nation.
12.6 RADON GAS
Radon gas is a naturally occurring radioactive gas that when it has
accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in
Illinois. Additional information regarding radon and radon testing may be
obtained from your county public health unit.
12.7 ATTORNEYS' FEES
In the case of the failure of either party to perform and comply with any
of the covenants and conditions hereof within the time herein specified,
whether suit be brought or not, the party so failing to perform and comply
hereby agrees to pay to the other party hereto all costs, charges and
expenses of such collection or other enforcement of rights in any suit or
otherwise, including its reasonable attorneys' fees. The prevailing party
in any litigation arising out of this Lease, including any appellate
proceedings and bankruptcy proceedings, shall be entitled to the award of
its reasonable attorneys' fees and costs.
12.8 ACCORD AND SATISFACTION
Landlord is entitled to accept, receive and cash or deposit any payment
made by Tenant for any reason or purpose, or in any amount whatsoever and
apply the same at Landlord's option to any obligation of Tenant and the
same shall not constitute payment of any amount owed except that to which
Landlord has applied the same. No endorsements or statement on any check
or letter of Tenant shall be deemed an accord and satisfaction or
otherwise recognized for any purpose whatsoever. The acceptance of any
such check or payment shall be without prejudice to Landlord's right to
recover any and all amounts owed by Tenant hereunder and Landlord's right
to pursue any other available remedy and shall not be deemed to constitute
a waiver of any of Landlord's rights hereunder.
Tenant Landlord
SOYODO, INC., a California corporation INLAND COMMERCIAL PROPERTY
MANAGEMENT, INC. an Illinois
corporation, as managing agent for
the Owner, Inland
/s/ [ILLEGIBLE]
-----------------------------------
Real Estate LB I LLC
By: /s/ By: /s/
---------------------------------- -------------------------------
Print Name: Print Name: D. Xxxxx Xxxx
-------------------------- -----------------------
Its: Its: President
--------------------------------- ------------------------------
Dated: Dated:
------------------------------- ----------------------------
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[SITE MAP OMITTED]
EXHIBIT A-2
LEGAL DESCRIPTION XX XX. XXXXX XXXXXXXX XXXXXXXX XXXXXX
XXXXXXXX, XXXXXXXX
That part of the Northwest Quarter of Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00,
Xxxx of the Third Principal Meridian, in Dupage County, Illinois, described as
follows:
Commencing at a point in the west line of said Northwest Quarter distant north
50.00 feet from the southwest corner of said Northwest Quarter; thence on an
assumed bearing of North 87 degrees 38 minutes 11 seconds East along the north
line of Xxxxx Avenue as dedicated per plat recorded December 7, 1976 as Document
Number R76-89001 in said County, 1622.48 feet to the Point of Beginning, being
also the easterly right-of-way line of Xxxxxxxxxxx Drive; thence North 02
degrees 21 minutes 47 seconds West along said easterly right-of-way, 469.99 feet
to a point of curvature in said line; thence northerly along the curved easterly
line of said right-of-way, being the arc of a circle convex to the East, tangent
to the last described course, having a radius of 2040.00 feet and an arc length
80.36 feet (the chord of which arc bears North 03 degrees 29 minutes 30 seconds
West and measures 80.36 feet) to the southerly line of Lot 2 in Xxxx Xxxxxxxx
Subdivision according to the plat thereof recorded December 9, 1982 as Document
Number R82-57425; thence North 87 degrees 38 minutes 11 seconds East, 757.84
feet to the westerly right-of-way line of Xxxxxx Xxxxxxx Highway (Illinois Route
83) as dedicated per plat recorded April 9, 1931 as Document Number 311138 in
said County, being also a point on a 2391.29 foot radius curve, the center of
circle of said curve bears South 67 degrees 05 minutes 54 seconds West from said
point; thence southerly along said westerly right-of-way line and said curve
567.67 feet (record) 567.86 feet (calculated) through a central angle of 13
degrees 36 minutes 22 seconds to the northerly right-of-way line of said Xxxxx
Avenue; thence South 87 degrees 38 minutes 11 seconds West along said northerly
right-of-way line 889.98 feet to the Point of Beginning.
Excepting therefrom the following:
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Beginning at the Point of Beginning hereinbefore described; thence North 02
degrees 21 minutes 47 seconds West along the easterly right-of-way line of
Xxxxxxxxxxx Drive, 15.00 feet; thence North 87 degrees 38 minutes 11 seconds
East parallel with the northerly right-of-way line of said Xxxxx Avenue 330.00
feet; thence North 61 degrees 24 minutes 12 seconds East 59.08 feet; thence
North 12 degrees 16 minutes 45 seconds West 297.19 feet; thence North 24 degrees
23 minutes 54 seconds East 163.24 feet; thence North 45 degrees 03 minutes 57
seconds East 104.52 feet to the northerly line of said tract, being also the
south line of Lot 2 in Xxxx Xxxxxxxx Subdivision hereinbefore described; thence
North 87 degrees 38 minutes 11 seconds East along the northerly line, 273.17
feet to the aforesaid westerly right-of-way line of Xxxxxx Xxxxxxx Highway,
being also a point on a 2391.29 foot radius curve, the center of circle of said
curve bears South 67 degrees 05 minutes 54 seconds West from said point; thence
southerly along said westerly right-of-way line and said curve 567.67 feet
(record) 567.86 feet (calculated) through a central angle of 13 degrees 36
minutes 22 seconds to the northerly right-of-way line of said Xxxxx Avenue;
thence South 87 degrees 38 minutes 11 seconds West along said northerly
right-of-way line 889.98 feet to the Point of Beginning.
Said parcel containing 4.571 acres, more or less.
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EXHIBIT B
MINIMUM RENT
Months 1 Monthly Rent Annual Rent
------------- ----------------- -----------------
INITIAL TERM: through 12 13 $ 4,116.67 $ 49,400.04
through 24 25 $ 4,225.00 $ 50,700.00
through 36 37 $ 4,333.33 $ 51,999.96
through 48 49 $ 4,441.67 $ 53,300.04
through 63 $ 4,550.00 $ 54,600.00
EXTENDED TERM: 64 through 75 $ 4,658.33 $ 55,899.96
76 through 87 $ 4,766.67 $ 57,200.04
88 through 99 $ 4,875.00 $ 58,500.00
100 through 111 $ 4,983.33 $ 59,799.96
112 through 123 $ 5,091.67 $ 61,100.04
Rent Abatement. No Minimum Rent shall be due commencing on the Rent Commencement
Date and continuing for a period of three (3) months (the "Abatement Months,"
collectively). Notwithstanding the foregoing, Tenant shall remain obligated to
pay all Additional Rent for the Abatement Months. The entire Minimum Rent
otherwise due and payable during the Abatement Months shall become immediately
due and payable upon the occurrence of an event of default by Tenant under this
Lease.
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EXHIBIT C-l
LANDLORD'S WORK
Landlord shall provide the Premises in Landlord's Vanilla Box condition, such
specifications as set forth below. Landlord has made no representations or
warranties as to the condition of the Premises.
Demolish and remove all previously installed interior partitions; floor
coverings; fixtures and equipment.
Combine units 14 and 15.
Furnish a clean, concrete slab floor, per Tenant's floor covering.
Prepare and prime all demising walls and remaining interior walls.
Provide or install rigid electrical conduit, junction boxes and wires to
connect to Tenant's storefront and other exterior signs, if any.
Provide existing HVAC system, including all ductwork diffusers, return air
vents and thermostat.
Provide existing ADA restroom(s) in working order with walls in paint
ready.
Provide existing ceiling with building standard white acoustical drop-in
tiles throughout the demised Premises.
Provide existing lighting with building standard two foot by four foot
(2'x 4') recessed fluorescent light fixtures throughout the demised
Premises with standard acrylic lens, symmetrically spaced.
Deliver the demised Premises "broom clean" free of trash and/or debris.
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EXHIBIT C-2
TENANT'S WORK
All work required to complete and place the Premises in finished condition to
allow Tenant to open for business is to be done by the Tenant, at the Tenant's
expense, and in accordance with this Exhibit and the Lease to which this Exhibit
is attached.
1. Tenant's Work. Includes, but is not limited to, the following:
1.1 All plumbing, including waterlines, floor drains and sinks other
than plumbing described in Exhibit C-1.
1.2 All floor finishes and coverings over existing floor.
1.3 Painting and decorating.
1.4 All trade fixtures and furnishings.
1.5 All tenant signs in accordance with Exhibit D.
1.6 Storefront display platforms or backgrounds.
1.7 All additions, deletions or modifications to existing conditions or
to Landlord's work (proposed or in place) as described in Exhibit
C-1.
1.8 Temporary services and facilities during construction shall be the
responsibility of the Tenant from the date Tenant commences Tenant's
work, including costs or charges for any utility or other services
to the Premises.
2. Changes and Alterations. Landlord reserves the right to require changes in
Tenant's work when necessary by reason of code requirements, or building
facility necessity, or directives of governmental authorities having
jurisdiction over the Premises, or directives of Landlord's insurance
underwriters.
3. General Provisions. All work done by Tenant shall be governed in all
respects by, and be subject to, the following:
3.1 Tenant agrees not to commence Tenant's work until Tenant has secured
Landlord's written approval of all contractors to be used in
performing Tenant's work and of the plans and specifications
required to be submitted by Tenant to Landlord. Landlord agrees to
notify Tenant within a reasonable time in advance of the day when
Tenant must commence Tenant's work and Tenant agrees that Landlord
may require Tenant to commence work, subject to such notice to
commence Tenant's work before Landlord's work has been fully
completed, provided that the Premises and the building of which the
Premises are a part are completed to the extent that it is practical
for Tenant to commence Tenant's work. Tenant's work shall be
coordinated with the work being done by the Landlord and/or other
tenants of Landlord to such a degree that such work will not
interfere with or delay the completion of work by Landlord and/or
other tenants of Landlord. The technical review of Tenant's plans
and specifications for purpose of securing Landlord's approval,
shall be performed by the Landlord's project architect on an hourly
fee basis, plus reimbursable expenses, in accordance with the terms
of agreement between the Landlord and the architect, and the Tenant
shall reimburse the Landlord for all such fees and expenses.
3.2 Tenant's work shall be performed in a first-class workmanlike manner
and shall be in good and usable condition at the date of completion
thereof. Tenant shall require any party performing any such work to
guarantee the same to be free from any and all defects in
workmanship and materials for one (1) year from the date of
completion thereof. Tenant shall also require any such party to be
responsible for the replacement or repair without additional charge
of any and all work done or furnished by or through such part which
shall become defective within one (1) year after substantial
completion of the work. The correction of such work shall include,
without charge, all expenses and damages in connection with such
removal, replacement or repair of any part of the work which may be
damaged or disturbed thereby. All warranties or guarantees as to
materials or workmanship on or with respect to Tenant's work shall
be contained in the contract or subcontract which shall be so
written that such guarantees or warranties shall inure to the
benefit of both Landlord and Tenant, as their respective interests
appear, and can be directly enforced by either. Tenant covenants and
agrees to give Landlord any assignment or other assurances necessary
to effect the same.
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3.3 Landlord shall have the right (but shall not be obligated) to
perform by its own contractor or subcontractor, on behalf of and for
the account of Tenant, any of Tenant's work which Landlord
determines should be so performed. Generally, such work shall be
work which affects any structural or roofing components, or work of
other tenants of, or the general utility systems for, the building
in which the Premises are located. If Landlord so determines, it
shall so notify Tenant prior to the commencement of such work.
Tenant shall promptly, on demand, reimburse Landlord for all costs
of planning and performing such work when and as incurred by
Landlord, and for all permits in connection therewith.
3.4 Compliance with Laws: All Tenant's work shall conform to applicable
statutes, ordinances, regulations, codes and the requirements of
Landlord's fire underwriter. Tenant shall obtain and convey to
Landlord copies of all permits, certifications and approvals
indicating compliance.
3.5 Approvals: No approvals by Landlord shall be deemed valid unless the
same shall be in writing signed by the Landlord.
3.6 Drawing Submittal: The Tenant shall, before it commences Tenant's
work, furnish Landlord with one (1) set of reproducible plans and
specifications for all its architectural, mechanical and electrical
systems. Such plans shall include the date for all electrical and
cooling loads, in form approved by Landlord.
3.7 Tenant's plans and specifications shall be prepared by an Illinois
architect or professional engineer and shall bear the signature and
seal thereof.
EXHIBIT D
SIGN CRITERIA FOR XX. XXXXX XXXXXXXX XXXXXXXX XXXXXX
XXXXXXXX, XXXXXXXX
The following sign criteria has been established to assist tenants in complying
with their lease. These basic standards have been made to govern the design,
fabrication and installation of tenant signs and is intended to afford all
tenants with good visual identification, both day and night, and to protect
against poorly designed and badly proportioned signing.
The sign standards have been selected to harmonize with and compliment the
building materials and will assist in creating the proper atmosphere for the
center, which we feel is located in one of the most prestigious trade areas of
the Metroplex.
This criteria should be given to your sign company to serve as a guide in
preparing their design and cost estimates for your approval.
Please inform your sign fabricator that he must submit two (2) copies of his
detailed, scaled sign drawings to the office of the center's leasing and
management agent: Inland Commercial Property Management, Inc., 0000 Xxxxxxxxxxx
Xxxx, Xxx Xxxxx, Xxxxxxxx 00000, Phone: (000) 000-0000, Attn: Property Manager
for approval prior to fabrication of your sign.
You will be liable and shall bear all costs for removal and/or correction of
signs, sign installation and damage to the building by sign installations that
do not conform with the following specifications.
SPECIFICATIONS
1. All signs are to be in the form of individual face channel letters,
illuminated with plastic letter faces.
2. Letter height: Overall height shall not exceed:
28" - 1 line
14" - 2 lines
28" - logo
3. Letter spread: Not to exceed length of 80% of storefront and shall be a
minimum of 2' 0" from lease line. (Example: A storefront measuring 40' can
have a sign length not to exceed 32'; a storefront measuring 15' 0" can
have a length not to exceed 11' 0"). Signage with a column splitting the
storefront will be decided upon by the Landlord. However, signage must
meet all delineated requirements.
4. Letter style: Shall be "Helvetica Medium" in either upper or lower case
letters or other letter styles approved by Landlord.
5. Letter depth: 5-1/2" to 12" (returns) maximum depth including raceway.
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6. Materials of construction:
A. Metal portions of letters must be of porcelain enamel, electrostatic
painted galvanized sheet metal, painted or prefmished anodized
aluminum, to match Xxxxxxxx Xxxxx #1210.
B. Plastic letter faces of Rohm & Xxxx plexiglass or equivalent.
C. Face retainers of 1" dark bronze trim cap or equivalent.
7. Letters to be affixed to metal raceway which shall be fastened directly to
brick fascia sign board mounting surface or other areas as designated by
Landlord with fastener type to be approved by Landlord. All wiring
transformers (60 m. a.) and supports for the letters shall be contained
within a metal raceway; no exposed connections. Raceway shall
not exceed 8" height and length shall not exceed beyond the length of
letters and shall be constructed of 20 gauge galvanized metal,
color to be assigned. All fasteners, screws, bolts, etc., used in
fabrication and installation of sign shall be rustproofed. (See drawing
attached).
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8. Emblems or logos may be used in connection with sign letters provided they
are not as "box" signs but in a contour form and are dimensioned with the
limits as stated herein, (i.e., 24" high maximum) and conform with
material specified.
9. Placement: Letters shall be placed on brick fascia. Height of sign to be
specified by Landlord. (See drawing attached).
10. Quantity of Signs: One sign per tenant storefront except for tenant spaces
with glass on two elevations. One sign will be allowed for each elevation
which faces public right of way only. Signs on the east elevation of the
building will be at the sole discretion and approval of the Landlord.
11. Secondary signs:
A. No secondary exterior signs are to be place on building wall
elevations, except that rear elevation signs will be permitted for
identification of delivery doors. Landlord must approve.
B. No sandwich or easel/portable signs are allowed.
C. No window signs are permitted without the express approval of the
Landlord. No neon window signs will be approved.
D. Standard address numerals for postal identification of premises will
be required. Numeral height shall not exceed 3". Style shall be
Helvetica Medium. Placement will be uniform as designated by the
Landlord.
12. Upon vacating the premises, Tenant shall be responsible for the removal of
his sign and restoring the fascia to its original condition. If Tenant
fails to do so promptly (within 10 days after notification by Landlord to
do so), then Landlord may perform this work and charge the Tenant.
Tenant's security deposit will be made available for such work if Tenant
fails to perform the work.
13. Signage must comply with the Village of Westmont sign ordinance. Permits
from the Village of Westmont can be acquired only with the signed approval
of Landlord.
As previously stated, scaled drawings in duplicate, indicating all copy,
materials of construction, letter style, colors, are to be submitted to the
Landlord for approval.
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EXHIBIT E
GUARANTY
THIS GUARANTY dated as of the______________day
of___________________20______by Ru Hua Song ("Guarantor") whose address is 000
X. XxXxxxxx #X, Xxxxxxxx, Xxxxxxxxxx 00000 to Inland Commercial Property
Management, Inc. (the "Landlord"), having its address at 0000 Xxxxxxxxxxx Xxxx,
Xxx Xxxxx, Xxxxxxxx 00000.
WITNESSETH
Contemporaneously herewith, Landlord, as lessor, is entering into a
certain lease (the "Lease") for real property located in the City of Westmont,
County of DuPage and State of Illinois, which property is more particularly
described in Exhibit A-2 thereto with Soyodo, Inc., a California corporation
("Tenant"), as lessee. Guarantor is executing this agreement as an inducement to
Landlord to enter into the Lease.
NOW THEREFORE, in consideration of the premises, Guarantor agrees as
follows:
1. Guarantor hereby absolutely, unconditionally and irrevocably guarantees
to the Landlord the full and punctual performance and observance by Tenant of
all of the terms, conditions, covenants and obligations to be performed and
observed by Tenant under the Lease including, without limitation, the payment as
and when due of all Minimum Rent and Additional Rent (both as defined in the
Lease) and any other sums payable by Tenant under the Lease. This is a Guaranty
of payment and performance, and not of collection, and Landlord shall not be
obligated to enforce or exhaust its remedies against Tenant before proceeding to
enforce this Guaranty. Landlord may, at Landlord's option, join Guarantor in any
action or proceeding commenced by Landlord against Tenant in connection with or
based upon the Lease or any term, covenant or condition thereof, and recovery
may be had against Guarantor in such action or proceeding or in any independent
action or proceeding against Guarantor without Landlord asserting, prosecuting,
or exhausting any remedy or claim against Tenant. Any suit or proceeding brought
against Guarantor to collect the amount of any deficiency in payments due from
Tenant under the Lease for any month or months shall not prejudice in any way
the rights of Landlord to collect any such deficiency for any subsequent month
or months in any similar suit or proceeding.
2. Guarantor hereby assents to all of the provisions of the Lease and
waives demand, protest, notice of any indulgences or extensions granted to
Tenant, any requirement of diligence or promptness on the part of Landlord in
the enforcement of the Lease and any notice thereof, and any other notice
whereby to charge Guarantor. Guarantor shall be furnished with a copy of any
notice of or relating to default under or termination of the Lease which is
served upon Tenant.
3. (a) This Guaranty shall be a continuing guarantee and the liability of
Guarantor hereunder shall in no way be affected, modified, diminished, impaired
or terminated for any reason whatsoever, including, without limitation, by
reason of any of the following, whether or not notice thereof is given to
Guarantor: (i) any one or more sublettings of all or any portion of the Premises
or any one or more assignments or other transfers of Tenant's interest in the
Lease, (ii) any consent, approval, waiver or other action, inaction or omission
under or concerning the Lease, (iii) any modifications,or
amendments of the Lease, (iv) any dealings or transactions or matter or thing
occurring between Landlord and Tenant, (v) any bankruptcy, insolvency,
reorganization, arrangement, assignment for the benefit of creditors,
receivership or trusteeship affecting Tenant or its successors or assigns, (vi)
the release or discharge of Tenant from the performance or observance of any of
the terms, covenants or conditions of law, by reason of any of the events
described in the foregoing clause (v) hereof, or otherwise, (vii) any change in
relationship between Guarantor and Tenant, (viii) the default or failure of
Guarantor to perform any of its obligations set forth in this Guaranty, (ix) any
action which Landlord may take or fail to take against Tenant by reason of any
waiver of, or failure to enforce, any of the rights or remedies reserved to
Landlord in the Lease, or otherwise, (x) any failure or refusal of Landlord to
re-let the Premises or any part or parts thereof in the event that Landlord
shall obtain possession of the Premises after Tenant's insolvency or default,
(xi) any failure to collect rent thereof under any such reletting, (xii) any
alterations, repairs, replacements and/or decoration in the Premises as
Landlord, in Landlord(1) s sole judgment, considers advisable and necessary for
the purpose of re-letting the Premises, and (xiii) any other circumstance or
condition that may result in a discharge, limitation or reduction of liability
of a surety or guarantor.
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(b) Guarantor hereby waives notice of the acceptance of this Guaranty
and presentment and demand for payment, notice of nonpayment, notice of
dishonor, protest, notice of protest, nonperformance, nonobservance and any
other notice or demand to which Guarantor might otherwise be entitled. Guarantor
hereby waives trial by jury of any and all issues arising in any action or
proceeding between the parties, upon, under or in connection with this Guaranty
or of any of its provisions, directly or indirectly, or any and all negotiations
in connection therewith. Guarantor's obligations hereunder shall not be subject
to any reduction, limitation, impairment or termination for any reason, and
shall not be subject to, and Guarantor hereby irrevocably waives, any defense or
set-off, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of any of Tenant's obligations under
the Lease or of any of Guarantor's obligations hereunder, or otherwise.
4. The obligations guaranteed by Guarantor pursuant to this Agreement
include all terms, conditions, covenants and obligations to be performed and
observed by Tenant during and/or with respect to the Initial Term of the Lease,
which is the period beginning on the "Commencement Date" and ending on the
"Termination Date" as set forth in Section 1.3 of the Abstract of Lease and
Section 3.1 of the Lease. This is a continuing guaranty and Guarantor's
obligations hereunder shall survive the expiration of the Initial Term and/or
any expiration or termination of the Lease and shall continue until all
obligations of Guarantor hereunder have been paid and satisfied in full:
provided, however, Guarantor's obligations shall not accrue beyond the Initial
Term of the Lease.
5. In addition to the amounts specified pursuant to Paragraph 1 hereof,
Guarantor shall pay to Landlord any and all costs incurred by Landlord in
enforcing this Guaranty, including reasonable attorneys' fees and costs.
6. This Agreement shall inure to the benefit of and may be enforced by
Landlord and its successors and assigns and any assignee of Landlord's interest
in the Lease (including Landlord's mortgagee), and shall be binding upon
Guarantor and its successors and assigns. No assignment by Guarantor shall
affect or reduce its obligations hereunder, and all such obligations shall
continue as though no such assignment had been made.
7. This Agreement may not be changed or terminated orally, but only by a
written instrument signed by the party against whom enforcement of any change or
termination is sought.
8. Any notice required hereunder to be sent to Guarantor shall be
sufficiently given by mailing by certified or registered mail, postage prepaid,
addressed to Guarantor at the address of Guarantor as stated above.
9. If Landlord shall be obligated by any bankruptcy, insolvency or other
legal proceedings to repay to Guarantor or to Tenant, or to any trustee,
receiver or other representative of any of them, any amounts previously paid by
Guarantor pursuant to this Guaranty, this Guaranty shall be deemed reinstated to
the extent of that repayment made by Landlord. Landlord shall not be required to
litigate or otherwise dispute its obligation to make such repayments if, in good
faith and on the advice of counsel. Landlord believes that such obligation
exists. Nothing herein contained is intended or shall be construed to give to
Guarantor any right of subrogation under the Lease or any right to participate
in any way therein or in Landlord's right, title and interest in the Lease.
Notwithstanding any payments made under this Guaranty, all rights of subrogation
and participation are expressly waived and released by Guarantor.
10. No delay on the part of Landlord in exercising any right, power or
privilege under this Guaranty, nor any failure to exercise the same, shall
operate as a waiver of, or otherwise affect, any right, power or privilege of
Landlord under this Guaranty, nor shall any single or partial exercise thereof
preclude the further exercise of, or the exercise of any other, right, power or
privilege of Landlord under this Guaranty.
11. The validity and enforcement of this Guaranty shall be governed by and
construed in accordance with the internal laws of the State in which the
Premises (as defined in the Lease) are located without regard to principles of
conflicts of laws, and such laws shall apply in any action or proceeding arising
out of or under this Guaranty.
12. All remedies afforded to Landlord by reason of this Guaranty are
separate and cumulative remedies and it is agreed that no one remedy, whether
exercised by Landlord or not, shall be deemed to be exclusion of any other
remedy available to Landlord and shall not limit or prejudice any other legal or
equitable remedy which Landlord may have.
13. If any provision of this Guaranty or the application thereof to any
person or circumstance shall to any extent be held void, unenforceable or
invalid, then the remainder of this Guaranty or the application of such
provision to persons or circumstances other than those as to which it is held
void, unenforceable or invalid, shall not be affected thereby and each provision
of this Guaranty shall be valid and enforceable to the fullest extent permitted
by law.
-40-
14. Guarantor hereby irrevocably:
(a) submits to the jurisdiction of the state courts of the State of
Illinois and to the jurisdiction of the United States District Court for the
North District of Illinois, for the purposes of each and every suit, action or
other proceeding arising out of or based upon this Guaranty or the subject
matter hereof brought by landlord, it being expressly understood and agreed that
this consent to jurisdiction shall be self-operative and no further instrument
or action, other than service of process in one of the manners specified in this
Guaranty or as otherwise permitted by law, shall be necessary in order to confer
jurisdiction upon Guarantor in any such court; and
(b) waives, and agrees not to assert, by way of motion, as a defense,
or otherwise, in any such suit, action or proceeding brought in any such court,
any claim that Guarantor is not subject personally to the jurisdiction of the
above named courts, that Guarantor's property is exempt or immune from
attachment or execution, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is improper
or that this Guaranty or the subject matter hereof may not be enforced in or by
such court, and further agrees to waive, to the fullest extent permitted under
applicable law, the benefit of any defense that would hinder, xxxxxx or delay
the levy, execution or collection of any amount to which Landlord or its
successors or assigns are entitled pursuant to the final judgment of any court
having jurisdiction; and
(c) consents to service of process by certified or registered mail at
Guarantor's address as set forth herein, or in any other manner permitted by
law, service in the foregoing manner to be deemed, in every respect, effective
service of process upon Guarantor and be taken and held to be valid personal
service upon, and personal delivery to, Guarantor. Guarantor agrees that
Guarantor's submission to jurisdiction and consent to service of process by mail
is made for the express benefit of Landlord.
IN WITNESS WHEREOF, Guarantor has duly executed this Agreement as of the
day and year first above written.
By: /s/
-------------------------------
Ru Hua Song
Social Security No: ###-##-####
Dated: 6/3/05
-41-
ACKNOWLEDGMENT
State of Illinois )
)SS
County of Dupage
I, the undersigned, a Notary Public, in and for the County and State aforesaid,
DO HEREBY CERTIFY, that Ru Hua Song, personally known to me to be the same
person whose name is subscribed to the foregoing instrument, appeared before
this day in person and acknowledged that he/she signed and delivered the said
instrument as his/her free and voluntary act and deed for the uses and purposes
therein set forth. Given under my hand and notarial seal this 3th --
________________ day of June_________, 2005
Notary Public
My commission expires:
----------------------
OFFICIAL SEAL [Seal]
XXXX X XXXX
NOTARY PUBUC. STATE OF ILLINOIS >(
-42-
EXHIBIT F
PROHIBITED USES
1. Adult bookstore or facility selling or displaying or selling access to
pornographic books, literature, websites or videotapes (materials shall be
considered "adult" or "pornographic" for such purpose if the same are not
available for sale or rental to children under 18 years old because they
explicitly deal with or depict human sexuality), massage parlor, steam
bath, nude modeling, establishment with nude or semi-nude waiters,
waitresses or entertainers;
2. Auction or bankruptcy sale;
3. Auditorium, meeting hall, ballroom, school, educational facilities
(including but not limited to, beauty schools, xxxxxx colleges, reading
rooms or libraries), or other place of public assembly;
4. Automobile sale, leasing, repair or display establishment or used car lot,
including body repair facilities;
5. Bingo or similar games of chance, but lottery tickets and other items
commonly sold in retail establishments may be sold as an incidental part
of business;
6. Bowling alley;
7. Car wash, car repair or car rental agency;
8. Cocktail lounge, bar, disco or night club;
9. Dance hall;
10. Funeral establishment;
11. Gymnasium, health club, exercise or dance studio;
12. Off-track betting (provided that state sponsored lottery tickets shall not
be prohibited);
13. Outdoor circus, carnival or amusement park, or other entertainment
facility;
14. Outdoor meetings;
15. Pawn shop;
16. Primarily pool or billiard establishment;
17. Refinery;
18. Residential use, including, but not limited to living quarters, sleeping
apartments or lodging rooms;
19. Restaurant, including but not limited to, drive-in or drive-through
restaurants;
20. Second hand store, auction house, or flea market, army/navy type
store-governmental "surplus";
21. Shooting gallery;
22. Skating or roller rink;
23. So called "head shop" which sells drug paraphernalia;
24. Theater, including but not limited to, X-rated theater;
25. Unemployment agency, service or commission;
26. Video game or amusement arcade, except as an incidental part of another
primary business;
27. Any other uses which conflict with the uses of existing tenants.
28. Non-retail use (which shall not prohibit in the Shopping Center such uses
commonly referred to as "quasi-retail" or "service retail" such as a
travel agency, real estate office, insurance agency, accounting service,
etc., so long as same do not exceed ten percent (10%) of the Leasable
Square Feet of the Shopping Center); or
29. Tenant may not install an Automatic Teller Machine in or on the Premises
without the express written consent of Landlord which consent Landlord may
deny in its sole discretion. 1.
[LANDLORD'S INITIALS OMITTED] [TENANT'S INITIALS OMITTED]
Landlord's Initials Tenant's Initials
-43-
EXHIBIT G
RULES AND REGULATIONS
1. Tenant shall advise and cause its vendors to deliver all merchandise
before noon on Mondays through Fridays, not at other times.
2. All deliveries are to be made to designated service or receiving areas and
Tenant shall request delivery trucks to approach their service or
receiving areas by designated service routes and drives.
3. Tractor-trailers which must be unhooked or parked must use steel plates
under dolly wheels to prevent damage to the asphalt paving surface. In
addition, wheel blocking must be available for use. Tractor trailers are
to be removed from the loading areas after unloading. No parking or
storing of such trailers will be permitted in the Shopping Center.
4. Tenant shall not dispose of the following items in sinks or commodes:
plastic products (plastic bags, straws, boxes); sanitary napkins; tea
bags, cooking fats, cooking oils; any meat scraps or cutting residue;
petroleum products (gasoline, naphtha, kerosene, lubricating oils); paint
products (thinner, brushes); or any other item which the same are not
designed to receive.
5. Tenant shall not permit of suffer any advertising medium to be placed on
exterior walls or windows, on the sidewalks or on the parking lot areas or
light poles. No permission, expressed or implied, is granted to exhibit or
display any banner, pennant, sign and trade or seasonal decoration of any
size, style or material within the Shopping Center, outside the Premises.
6. Tenant shall not permit or suffer the use of any advertising medium which
can be heard or experienced outside of the Premises, including, without
limiting the generality of the foregoing, flashing lights, searchlights,
loud speakers, phonographs, radios, or television. No radio, television,
or other communication antenna equipment or device is to be mounted,
attached, or secured to any part of the roof, exterior surface, or
anywhere outside the Premises, unless Landlord has previously given its
written consent.
7. Tenant shall not permit or suffer any portion of the Premises to be used
for lodging or extended stay purposes.
8. Tenant shall not, in or on any part of the Common Area:
a. Vend, peddle or solicit orders for sale or distribution of any
merchandise, device, service, periodical, book, pamphlet or other
matter whatsoever.
b. Exhibit any sign, placard, banner, notice or other written material,
except for activities as approved in writing by Landlord.
c. Distribute any circular, booklet, handbill, placard or other
material, except for activities as approved in writing by Landlord.
d. Solicit membership in any organization, group or association or
contribution for any purpose.
e. Create a nuisance.
f. Throw, discard or deposit any paper, glass or extraneous matter of
any kind except in designated receptacles, or create litter or
hazards of any kind.
g. Deface, damage or demolish any sign, light standard or fixture,
landscaping materials or other improvement within the Shopping
Center, or the property of customers, business invitees or employees
situated within the Shopping Center.
9. Tenant shall not locate furnishings or cabinets adjacent to mechanical or
electrical access Panels or over air-conditioning outlets so as to prevent
operating personnel from servicing such units as routine or emergency
access may require. Cost of moving such furnishings for Landlord's access
will be at Tenant's cost. The lighting and air conditioning equipment of
the Shopping Center will remain in the exclusive control of the building
designated personnel.
10. Tenant shall comply with parking rules and regulations as may be posted
and/or distribution from time to time.
11. Prior written approval, which shall be at Landlord's sole discretion, must
be obtained for installation of window shades, blinds, drapes or any other
window treatment of any kind whatsoever.
12. Tenant shall keep the Premises at a temperature compatible with
comfortable occupancy during business hours and at all times sufficiently
high to prevent freezing of water in pipes and fixtures.
13. Tenant shall keep the signs, exterior lights and display window lights of
the Premises lighted each and every day of the Term during the hours
designated by Landlord.
14. No animals shall be brought into or kept in or about the Shopping Center
other than as handicap aids.
15. In the event any violation of any of the above rules and regulations
continues after five (5) days following written notice to Tenant of such
violation, beginning on such fifth day Tenant shall be in default of
lease. In addition to all other remedies of Landlord provided in the Lease
for default by Tenant, pay liquidated damages of One Hundred Dollars
($100.00) per day for each day such violation continues.
16. Except as otherwise provided herein, Landlord reserves the right to modify
or rescind any of these rules and regulations and to make such other or
further reasonable rules and regulations as it deems in its reasonable
judgment shall from time to time be necessary or advisable for the
operation of the Shopping Center, which rules and regulations shall be
binding upon each such tenant in the Shopping Center upon their
notification of said further rules and regulations.
-44-
THIS RIDER IS ATTACHED TO AND IS MADE PART OF THAT CERTAIN SHOPPING CENTER LEASE
(THE "LEASE") DATED [ILLEGIBLE] BY AND BETWEEN INLAND COMMERCIAL PROPERTY
MANAGEMENT, INC., AS MANAGING AGENT FOR THE OWNER OF THE SHOPPING CENTER
COMMONLY KNOWN AS ST. XXXXX CROSSING SHOPPING CENTER AND SOYODO, INC., A
CALIFORNIA CORPORATION, AS TENANT
This Rider is dated and is effective the same date as the Lease. All capitalized
terms, unless expressly defined herein, shall have the same meaning as in the
Lease. In the event of a conflict between the terms of the Lease and those
contained in this Rider, this Rider shall prevail.
X-X EXCLUSIVE USE: Provided that Tenant has not committed an event of default
and further provided that the following uses do not interfere with any
exclusivity provisions of other tenants in the Shopping Center or with the
prohibitions set forth in Exhibit F attached to the Lease, and except for
existing tenants of the Shopping Center under their existing leases for premises
in the Shopping Center (which leases may be renewed, extended or replaced) and
which permit such existing tenant to engage in any use which would otherwise be
prohibited hereunder, Landlord covenants and agrees that during the Term, as
such terms may be extended pursuant to the provisions of the Lease, Tenant has
the exclusive right ("Tenant's Exclusive Right") in the Shopping Center to the
use of the Premises for the following purposes: a store selling Chinese books,
magazines, and other periodicals.
Tenant's Exclusive Right is subject to the following express limitations:
A. Tenant acknowledges that the use clauses in the existing tenants' leases
do not violate Tenant's Exclusive Right;
B. Tenant's Exclusive Right shall only limit competing uses that are the
primary business of competing tenants and shall not be construed as
prohibiting ancillary uses of such competing tenants;
C. Tenant's Exclusive Right shall only be effective so long as Tenant
continuously operates its exclusive business in the entire Premises; and
D. Tenant's Exclusive Right shall automatically terminate and be of no
further force or effect upon the occurrence of an event of default by
Tenant.
Anything to the contrary notwithstanding, Tenant shall have no remedy for a
violation of Tenant's Exclusive Right including, but not limited to, any right
of offset, rent reduction or Lease termination if all of the following occur:
1. Another tenant or occupant in the Shopping Center violates a provision of
its lease or license agreement regarding its premises, which provision
either does not permit or specifically prohibits a use ("Prohibited Use")
that violates Tenant's Exclusive Use; and
2. Landlord provides notice of the lease or license agreement violation to
such other tenant or occupant; and
3. Landlord commences an action (or arbitration, if required by such lease or
license agreement) against such other tenant or occupant, and thereafter
uses good faith efforts to enforce its rights under such lease or license
agreement and to obtain Judicial Relief. For purposes hereof, "Judicial
Relief shall mean a temporary restraining order, preliminary injunction,
order of eviction, other court order or order resulting from an
arbitration proceeding enjoining the prohibited use; provided, however,
Landlord shall not be required to appeal any adverse decision denying
Judicial Relief.
R-2. CONTINGENT ENFORCEABILITY: The parties hereto acknowledge and confirm that
this Lease and the commencement and enforceability of all its terms and
conditions is contingent upon the termination of the existing lease for the
Premises and the surrender of the Premises by the existing tenant. Landlord
hereby covenants to exercise good faith efforts to meet this contingency and
deliver possession of the Premises in a timely manner
-45-
If the terms and conditions of this Rider conflict in any way with the terms and
conditions of the Lease to which this Rider is attached, the terms and
conditions of this Rider shall control.
R-3. RIGHT TO TERMINATE: Notwithstanding Section 2.2 of the Lease, if Landlord
requires that Tenant be relocated to a Substitute Premises, Tenant shall have a
one time right to terminate the Lease by delivery to Landlord within fifteen
(15) days after Tenant's receipt of Landlord's written notice indicating that
Tenant is terminating the Lease. Any such termination will be effective on the
date that is sixty (60) days after Tenant's delivery of written notice of
termination to Landlord. Should Tenant elect not to terminate the Lease, all
terms and conditions of the Lease shall remain in full force and effect.
Tenant Landlord
SOYODO, INC., a California corporation INLAND COMMERCIAL PROPERTY
MANAGEMENT, INC., an Illinois
corporation, as managing agent for
the Owner, Inland
By: By: /s/ D. Xxxxx Xxxx
---------------------------------- -------------------------------
Print Name: Print Name: D. Xxxxx Xxxx
-------------------------- -----------------------
Its: Its: President
--------------------------------- ------------------------------
Dated: Dated: 6/13/2005
------------------------------- ----------------------------
-46-
INSURANCE CHECKLIST
TENANT: Soyodo, Inc., a California corporation
000 X. XxXxxxxx#X
Xxxxxxxx, XX 00000
LOCATION: St. Xxxxx Crossing
000-000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
|X| Public liability and property damage insurance with limits of:
1 MIL OCCURRENCE/2 MIL AGGREGATE/1 MIL UMBRELLA
|X| Plate glass insurance.
|X| Fire and extended coverage on the contents of the Premises.
|X| Boiler, HVAC and machinery insurance.
|_| Other:
--------------------------------------------------------------------------
|X| A 30 day cancellation or change notice should be included in all policies.
|X| The following should be named as "additional insureds":
1. Inland Commercial Property Management, Inc., as managing agent for
the Owner of St. Xxxxx Crossing Shopping Center and the Owner,
Inland Real Estate LB I LLC.
2.
3.
-47-
ASSIGNMENT AND ASSUMPTION OF LEASE
AND AMENDMENT TO LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AND AMENDMENT TO LEASE
("Assignment and Amendment"), is entered into as of __________________, 2005, by
and between Soyodo, Inc., a California corporation ("Assignor"), and Top Group
Holdings, Inc., a Delaware corporation ("Assignee"), and Inland Commercial
Property Management, Inc. ("ICPM").
R E C I T A L S:
WHEREAS, ICPM, as managing agent for Inland Real Estate LB I LLC
("Owner"), and Assignor own the interests of Landlord and Tenant, respectively
under a Lease dated June 6, 2005 (hereinafter referred to as the "Lease")
pertaining to Space 000-000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx ("Premises")
located in the Xx. Xxxxx Xxxxxxxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx.
WHEREAS, Ru Hua Song ("Guarantor") executed a Guaranty ("Guaranty") of
said Lease;
WHEREAS, Assignor desires to assign all of its right, title and interest
as the Tenant under the Lease to Assignee and Assignee desires to assume,
observe and perform all of the terms, covenants, and conditions to be observed
or performed by the Tenant under the Lease; and
WHEREAS, ICPM is willing to consent to the Assignment from Assignor to
Assignee provided the parties amend the Lease as hereinafter set forth, and
provided further that Assignor makes the acknowledgements contained herein.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, it is hereby agreed that, effective ____________, 2005
("Effective Date").
1. Incorporation of Recitals. The Recitals set forth above are hereby
incorporated by reference as if fully set forth herein.
2. Validity of Lease. Assignor hereby warrants and represents that the
Lease is valid, in good standing, and in full force and effect and that there is
no condition or state of facts now in existence, which, if not corrected, would
constitute a default by Assignor, as the Tenant, or the Landlord, as the
Landlord, under the terms of the Lease.
3. Assignment. As of the Effective Date, and subject to all of the terms,
provisions, conditions, obligations, covenants and agreements contained or
referred to in the Lease to be observed and performed by the Tenant thereunder
(collectively, the "Tenant Obligations"), Assignor does by these presents hereby
grant, bargain, sell, convey, transfer, assign and deliver unto Assignee all of
Assignor's right, title, and interest in the Lease, including Assignor's right
to the Security Deposit relating thereto, if any, and in and to the leasehold
estate created by the Lease.
-1-
4. Acceptance. As of the Effective Date, Assignee accepts the assignment
of the Lease and of the Security Deposit relating thereto, if any, which shall
continue to be retained by Landlord, and in and to the leasehold estate created
by the Lease. Assignee further assumes and agrees to observe and perform all of
the Tenant Obligations, including but not limited to, the payment of all rent
(including, minimum Minimum Rent, percentage rent, if any and all Additional
Rent) and all charges and deposits (including Common Area Expenses and Real
Estate Taxes) due to be paid to Landlord, from and after the Effective Date, as
fully and completely as though Assignee were the original Tenant under the
Lease.
5. Assignor and Guarantor Not Released. Notwithstanding this Assignment
and Amendment or ICPM's consent to such Assignment and Amendment or anything to
the contrary that may be contained in the Guaranty, Assignor and Guarantor shall
not be released from liability for the performance by Assignor of the Tenant
Obligations, including without limitation, the payment of all rent (including,
Minimum Rent, percentage rent and Additional Rent) and all charges and deposits
(including Common Area Expenses and Real Estate Taxes) due to be paid to
Landlord for the remainder of the Term of the Lease, but that the liability of
Assignor and Guarantor for the performance by Assignor of the Tenant Obligations
shall continue as if this Assignment and Amendment had not been made. Guarantor
hereby consents to this Assignment and Amendment and reaffirms in all respects
the Guaranty and all of the obligations of Guarantor thereunder.
6. Preservation of Landlord's Remedies. Landlord shall not be required to
enforce or pursue any remedy which it now has or may hereafter acquire against
Assignor or Assignee prior to proceeding against the other, and no failure,
delay, or election to pursue any remedy under the Lease against either Assignor
or Assignee shall constitute a waiver on Landlord's part of the right to pursue
said remedy against either party on the basis of the same or a subsequent
breach. Any notices received from or given to Assignor by Assignee shall
simultaneously be furnished to Landlord. Neither the consent of Landlord to this
Assignment and Amendment, nor Assignee's taking possession of the Leased
Premises, shall constitute or be deemed to be a waiver by Landlord of any
existing default of any Tenant Obligations by Assignor.
7. Maintenance of Agreement. Assignee and Assignor acknowledge that their
undertakings hereunder are given in consideration of Landlord's consent to this
Assignment and Amendment and that the Landlord would not consent to this
Assignment and Amendment were it not for the execution and delivery of this
Assignment and Amendment in the form and substance hereof.
8. Amendment of Lease. From and after Effective Date the Lease shall be
amended as follows:
A. Notices to Tenant shall be addressed as follows:
Xxxxxxxx Xx
000-000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx
B. The Lease shall be amended to reflect tender of payment by Assignee
to Landlord of an additional $-0- security deposit amount.
-2-
C. Notices to Landlord shall be addressed as follows:
Inland Commercial Property Management, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
D. Assignee shall pay to ICPM concurrently upon execution of this
Assignment and Amendment by Assignee a transfer fee of Five Hundred
and No/100 Dollars ($500) in order to reimburse Landlord for all if
its internal cost and expenses incurred with respect to this
Assignment and Amendment.
9. Amendment. This Assignment and Amendment shall not be modified except
by written instrument subscribed to by Assignor, Guarantor, Assignee and ICPM.
Except as specifically amended by this Assignment and Amendment, all of the
terms, provisions, agreements, covenants and conditions contained in the Lease
are and shall remain, unchanged and in full force and effect.
10. Inurement. The terms and conditions of this Assignment and Amendment
shall be binding upon and shall inure to the benefit of the parties hereto, and
their respective heirs, successors and assigns.
11. Headings. The paragraph headings contained in this Assignment are for
reference purposes only and shall not affect in any way its meaning or
interpretation.
12. Counterparts. This Assignment may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
shall together constitute one and the same instrument.
13. Construction. This Assignment shall be governed by and construed in
accordance with the laws of the State wherein the Premises are located.
[THIS SPACE INTENTIONALLY LEFT BLANK]
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Amendment to be made as of the date first above written.
ASSIGNOR:
SOYODO, INC.,
A CALIFORNIA CORPORATION
By: /s/
---------------------------------------
Printed Name:
-----------------------------
Its:
--------------------------------------
ASSIGNEE:
TOP GROUP HOLDINGS, INC.
A DELAWARE CORPORATION
By: /s/
---------------------------------------
Printed Name:
-----------------------------
Its:
--------------------------------------
GUARANTOR:
By: /s/
---------------------------------------
Ru Hua Song
-------------------------------------------
Social Security No.:
-----------------------
ICPM:
Inland Commercial Property Management, Inc.
By: /s/
---------------------------------------
Its:
--------------------------------------
-4-
ACKNOWLEDGEMENTS:
ASSIGNOR:
STATE OF __________________ )
) SS.
COUNTY OF ________________ )
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that _________________________________ , the
_________________ of Soyodo, Inc., a California corporation, personally known to
me to be the same person whose name is subscribed to the foregoing instrument,
appeared before this day in person and acknowledge that as such
_________________ he/she signed and delivered the said instrument as his/her
free and voluntary act and deed and as the free and voluntary act and deed of
said corporation, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this _____ day of
__________________, 2005.
------------------------------------
Notary Public
My commission expires:
--------------------------
ASSIGNEE:
STATE OF __________________ )
) SS.
COUNTY OF ________________ )
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIRY, that _________________________________ , the
_______________ of Top Group Holdings, Inc., a Delaware corporation, personally
known to me to be the same person whose name is subscribed to the foregoing
instrument, appeared before this day in person and acknowledge that as such
_________________ he/she signed and delivered the said instrument as his/her
free and voluntary act and deed and as the free and voluntary act and deed of
said corporation, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this _____ day of
__________________, 2005.
------------------------------------
Notary Public
My commission expires:
--------------------------
-5-
GUARANTOR:
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY, that Ru Hua Song personally known to me to be the
same person whose name is subscribed to the foregoing instrument, appeared
before this day in person and acknowledged that he/she signed and delivered the
said instrument as his/her free and voluntary act and deed for the uses and
purposes therein set forth.
GIVEN under my hand and notarial seal this ________ day of
________________, 2005.
------------------------------------
Notary Public
My commission expires:
---------------------------
-6-
CONSENT
The undersigned, as managing agent for Owner under the Lease described in
the foregoing Assignment and Amendment, does hereby consent to the foregoing
assignment from Assignor to Assignee on the conditions set forth therein and
agrees to the foregoing amendment to the Lease.
This consent by ICPM, as managing agent for Owner, to the Assignment and
Amendment shall not in any way be construed as to relieving Assignee from
obtaining the express prior written consent of ICPM, as managing agent for
Owner, which consent shall not be unreasonably withheld by ICPM, to any further
assignment or subletting for the use of any part of the Premises, nor shall the
collection of rent by ICPM, as managing agent for Owner, from any assignee,
sublessee or other occupant, be deemed a waiver of this covenant or the
acceptance of said assignee, sublessee or occupant, as tenant under the Lease,
or a release of Assignee from the further performance by Assignee of the
covenants in the Lease on the part of Assignee to be performed. ICPM's consent,
as managing agent for Owner, is contingent upon Assignee providing written
documentation stating the Effective Date of said Assignment.
INLAND COMMERCIAL PROPERTY MANAGEMENT,
INC., as managing agent for Owner, Inland
Real Estate LB I LLC
By:
-----------------------------------
Its:
-----------------------------------
-7-
